12049	----	LEGAL STATUS OF WOMEN IN IOWA. COMPILED BY JENNIE L. WILSON, LL. B. Member of the Polk County Bar. DES MOINES: IOWA PRINTING COMPANY. 1894. Preface. This book has been prepared for the purpose of presenting to the women of Iowa, in a brief and concise form, those laws which pertain to subjects in which they are most deeply interested, and about which there is a strong and growing demand for certain and accurate information. In this age of general intelligence, when learning in some degree is so readily attainable, the maxim, that "Ignorance of the law excuses no one," has a measure of justice in it, which could not be claimed for it in former times, and it is most certainly true that, "As the subjects of law, if not as its makers, all ought to know enough to avoid its penalties and reap its benefits." Every woman should understand the law of her own state concerning marriage, divorce, the care and custody of children, and the mutual rights and duties of husband and wife incident to the marriage relation. She should know something of the law of minors and guardianship, of administration, and descent of property, and her knowledge should certainly embrace that class of crimes which necessarily includes her own sex, either as the injured party, or as _particeps criminis_. In the arrangement of this work, a very brief synopsis of the common law upon these subjects is given, as the principles of the common law underlie our entire statute law, and a knowledge of the former is absolutely essential to render much of the latter intelligible. The statute law of the state has been given in the exact words of the statutes, with but few exceptions, and the explanations or notes following these have been gathered from decisions of our supreme court. The references are to sections of McClain's Annotated Code and Supplement. The design of the work is not broad enough to give to the most careful reader that knowledge of the _minutiae_ of the law necessary in the application of its principles to particular cases and under a special state of facts. It is in nowise adequate, even though its contents should be thoroughly mastered, to make every woman her own lawyer, in matters where she would otherwise require legal advice, but it is hoped that its statements are sufficiently plain and free from technical phraseology and legal terms, that even the casual reader may readily comprehend them, and be able to gain a general understanding of the law of our state upon these subjects. J.L.W. Des Moines, Iowa, May 1894. TABLE OF CONTENTS. CHAPTER I. SYNOPSIS OF COMMON LAW. Common law in force--Changes--Marriage--Dissolution of marriage--Power of husband--Disabilities of wife--Custody of children--Property rights--Descent of property--Discrimination in criminal matters--Right of appeal--Reason for subjection of women CHAPTER II. MARRIAGE. Contract of marriage--Legal age--No express form necessary--Who may solemnize--When void CHAPTER III. HUSBAND AND WIFE. Property rights of married women--Remedy by husband or wife against the other--Wife's torts--Conveyances to each other--Conveyances to third parties--Wages of wife--Contracts of wife--Family expenses--Removal from homestead--Conveyance of property when husband or wife is insane CHAPTER IV. DIVORCE, ANNULLING MARRIAGES AND ALIMONY. Jurisdiction of court--Evidence--Causes for divorce--Husband from wife--Maintenance during litigation--Alimony--Custody of children--Annulling illegal marriages--Causes--Legitimacy of children CHAPTER V. MINORS AND GUARDIANSHIP. Majority--Contracts of minors--Natural guardians--Guardians of property--Powers and duties of guardian--Guardians of drunkards, spendthrifts and lunatics CHAPTER VI. APPRENTICING AND ADOPTION OF CHILDREN. Method of apprenticing--Schooling and treatment of minors--Who may adopt--Method and effect of adoption--Home for the friendless--Powers CHAPTER VII. WILLS AND LETTERS OF ADMINISTRATION. Who may make wills--Of what property--Verbal wills--Wills in writing--Revocation--Cancellation--Executors--Administration--Who entitled--Time allowed CHAPTER VIII. SETTLEMENT OF THE ESTATE--DESCENT AND DISTRIBUTION OF PROPERTY. Exempt personal property--Life insurance--Allowance to widow and children--Descent and distribution--Personal property--Real property--Dower--Curtesy--Widow's share not affected by will--Descent to children--To parents--To wife and her heirs--Illegitimate children inherit from mother--When they may inherit from father--When father may inherit from child CHAPTER IX. HOMESTEAD AND EXEMPTIONS. Homestead exempt--Family defined--Conveyance or encumbrance--Liability for taxes and debts--What constitutes homestead--Exemptions to head of family--Insurance--Personal earnings--Pension money--Damages producing death CHAPTER X. CRIMINAL LAW--ILLEGITIMATE CHILDREN. Rape--Intent to commit--Compelling to marry--Carnal knowledge--Producing miscarriage--Enticing female child--Seduction--Marriage a bar to prosecution--Adultery--Evidence in cases of rape or seduction--Bigamy--Lewdness--Houses of ill fame--Penalty for prostitution--Incest--Illegitimate children--Support of--Rendered legitimate by marriage of parents CHAPTER XI. MISCELLANEOUS PROVISIONS. Damages under prohibitory liquor law--Parties in actions for seduction--In actions for injury to minor child--Married women--When husband or wife deserts family--Husband or wife as witness--Communications between husband and wife--Women eligible to office--Police matrons--Right of suffrage CHAPTER XII. CONCLUSION. Common law in Iowa--Law will not always protect married women--It may cause hardship and suffering--Change or modification needed Common Law CHAPTER I. SYNOPSIS OF COMMON LAW. [Sidenote: Common law in force.] Until a comparatively recent period the laws of England in force at the time of the independence of the American colonies, relating to married women, the mutual duties of husband and wife, their property rights and the care and custody of children, were everywhere in force in this country except in those states which were originally settled by other nations than the English. [Sidenote: Changes.] The agitation of the last fifty years, caused by the demand for equality in educational opportunities and in professional, business and trade relations, as well as for the legal and political recognition of women, has brought about great changes in these laws, until they are in many instances almost entirely superseded by statutory enactments more in accordance with the spirit of justice and in greater harmony with the requirements of a higher form of civilization. In many states they have reached a condition in which the legal status of husband and wife is nearly, if not wholly, one of equality. [Sidenote: Basis of statue law.] It must always be borne in mind, however, that the common law is the foundation upon which almost the entire structure of our American system of jurisprudence is based, although it is claimed that it has only been recognized by our courts so far as it has been "applicable to the habits and conditions of our society and in harmony with the genius, spirit and objects of our institutions." As it became apparent from time to time that it was not thus applicable, or where it failed to meet the requirements of the changed conditions of society the strictness of its rules was relaxed by giving to them a broader construction, or, when this could not be done, they were modified or entirely changed by statute. [Sidenote: Marriage] Marriage was regarded by the common law as a civil contract and might be entered into legally by a boy of fourteen or a girl of twelve years of age, provided they were under no legal disability to contract marriage. This was called the age of consent, or discretion, and a marriage contracted prior to this time was inchoate only, and might be repudiated by either party upon arriving at the legal age. If one of the parties was above and the other under the required age, the marriage might still be disaffirmed by either. If after reaching the age of consent the parties continued to live together as husband and wife, this would be regarded as an affirmance of the marriage. [Sidenote: What constitutes.] The mutual consent of the parties themselves, followed by cohabitation, was sufficient to constitute a legal marriage, without the observance of any formalities. The formal ceremonies provided by statute for the celebration of marriages, and the penalties imposed upon clergymen and others who married those who had not complied with these formalities, were solely for the purpose of providing a convenient and certain proof of marriage, should it be afterwards necessary to establish that fact by evidence, rather than to invalidate marriages which would otherwise be legal. [Sidenote: Dissolution of marriage.] Having established the marriage relation, it could only be dissolved by death or divorce granted by act of parliament, or, in this country after the declaration of independence, by act of legislature. No absolute divorce could be granted for any cause arising after the marriage, but a separation might be decreed in case of adultery by either party. [Sidenote: Subjection of married women.] By the rules of the common law, the person and property of women were under the absolute control of their husbands. The maxim, _Uxor non est juris, sed sub potestate viri_, "a wife is not her own mistress, but is under the power of her husband," is but an expression of the actual legal status of a woman from the instant she entered the matrimonial state, until released therefrom by death or divorce. [Sidenote: Legally dead.] Marriage was the act by which she ceased to have a legal existence, by which, we are told, her very being became incorporated or consolidated into that of her husband. From the time her identity became thus merged, she was presumed by the law to be under the protection and influence of her husband, to be so absolutely and entirely one person with him, that she had henceforth no life in law apart from his. [Sidenote: Unity of person.] The legal fiction of the unity of the persons of husband and wife dates back to feudal times, and may, perhaps, have been a necessity of the age and of the peculiar social and political systems of that period. Like many another law having its inception in a sincere desire to secure the greatest good to the greatest number, and apparently necessary for that purpose at the period of social development which gave it birth, it existed for centuries after it had ceased to result in any benefit or afford any protection, and after the reason for its being had passed away and been forgotten. [Sidenote: Power of husband.] We are told that at marriage the husband "adopted his wife and her circumstances together." He might exercise his power over her person by restraining her of her liberty in case of gross misbehavior, or by giving her moderate chastisement in the same degree that he might administer correction to his children. An early decision of one of our state courts interpreted this to mean that a man might whip his wife with a switch as large as his finger, but not larger than his thumb, without being guilty of an assault. [Sidenote: Disabilities.] Husband and wife being one person could not contract nor enter into a business partnership with each other; neither could one convey property to the other without the intervention of a third party. The wife was incapable of receiving a legacy unless it was willed to another person as trustee, for her use and benefit, and if a legacy were paid directly to her, the husband could compel the executor to pay it again to him. [Sidenote: Wife's power to contract.] The wife had no power to contract a legal debt nor to bind herself by any kind of an agreement, neither could she make her husband liable for any debt or contract, except for necessaries. These, the husband was under obligation to provide, and in contracting for them, the law assumed that the wife was acting as his agent. [Sidenote: Release of dower.] She might release her right of dower in lands of her husband, but only when examined separately she acknowledged that the conveyance or release was not secured by his influence or coercion. [Sidenote: Wife's earnings.] Her earnings though acquired by her individual labor and in a business separate and apart from her husband belonged to him, and he could collect them by action. This was the law though husband and wife were living apart. They could be subjected to the payment of his debts, by his creditors, and if he died without a will they descended to his heirs as other personal property. They were not considered the property of the wife, even in equity, without a clear, express, irrevocable gift, or some distinct affirmative act of the husband, divesting himself of them and setting them apart for her separate use. [Sidenote: Power of conveyance and devise.] A wife had no power to convey her real property, nor could she devise her personal property by will, without the consent of her husband. [Sidenote: Domicile.] The husband had the legal right to establish his home or domicile in any part of the world where "his interests, his tastes, his convenience, or possibly, his caprice might suggest," and it was the wife's duty to follow him. If she refused to accompany him, no matter upon what ground she based her refusal, she was guilty of desertion. A promise by the husband before marriage as to the establishment of the place of residence of the family, created a moral obligation only and was a mere nullity in law. Whenever there was a difference of opinion between husband and wife in regard to the location of the common home, the will of the wife had to yield to that of the husband. This law of domicile was based upon the grounds of the "identity of the husband and wife, the subjection of the wife to the husband, and the duty of the wife to make her home with her husband." [Sidenote: Witness.] Neither husband nor wife was competent as a witness to testify either for or against the other in civil or criminal cases. [Sidenote: Husband entitled to society of wife.] The husband was entitled to the society and services of his wife and he might bring an action for damages against anyone who harbored her, or persuaded or enticed her to leave him or live separate from him. If injuries were wrongfully inflicted upon her, two actions might be brought against the party responsible for the wrong, one by husband and wife for the personal injury to the wife, and one by the husband for loss of the wife's services. In either case, the amount recovered belonged to the husband. [Sidenote: Suits at law.] The wife could neither sue or be sued unless her husband was joined with her in the suit. A judgment recovered against her alone was void, because she was unknown to the law apart from her husband. One entered in her favor became the property of her husband. [Sidenote: Wife as executor.] The consent of the husband was necessary to enable a married woman to act as executor, administrator, guardian or trustee. [Sidenote: Duty of husband.] [Sidenote: Liable for anti-nuptial contracts.] [Sidenote: Torts of wife.] The husband became responsible for the maintenance of the wife according to her rank and station, and if he failed to make suitable provision for her, tradesmen might furnish her with necessaries at her request and could collect payment from the husband. He was liable for all of her debts contracted before marriage, and this was the case, though he may have received no property with her. He was responsible for certain wrongs committed by her after marriage, such as libel and slander, and judgment could be recovered against him. If a wrong were committed jointly by both, action might be brought against the husband alone. When a judgment was recovered upon contract, or because of the wrongful act of the wife, if the husband failed to pay it, he might be imprisoned. [Sidenote: Widow's quarantine.] After the death of the husband the law gave the widow a right to remain forty days in his house, during which time her dower might be assigned. This right was known as the "widow's quarantine." [Sidenote: Custody of children.] The father was legally entitled to the custody of his children,--the right of the mother was never recognized, it being expressly stated by Blackstone that "a mother, as such, is entitled to no power, but only to reverence and respect." He might by will appoint a guardian for them after his death, though yet unborn, and might apprentice them or give them into the custody of others without the consent of the mother. [Sidenote: Property rights.] [Sidenote: Wife's paraphernalia] All personal property belonging to the wife vested absolutely in the husband at marriage. He could will it to whom he pleased or, if he died without a will, it descended to his heirs. Even her wearing apparel and ornaments known by the term "paraphernalia," belonged to the husband. During his life he had the power to sell or give them away, but he could not devise them by will. If they remained in the possession of the wife while the husband lived, she was entitled to them over and above her dower, but even then creditors of the husband might claim them, if there chanced to be a deficiency of other assets with which to pay the debts of the estate. [Sidenote: Choses in action.] The wife's choses in action, or evidences of money or property due to her, such as notes, bonds, contracts or the like, belonged to the husband if he reduced them to possession during her life, and they could be taken for his debts. He might bequeath them by will, but if he died without a will they descended to his heirs. If he failed to reduce them to possession while the wife lived, after his death they would revert to her heirs. If she outlived her husband they belonged to her. After the husband's death the wife took one-third of his personal estate if there were children, and one-half if there were no children. [Sidenote: Real property of wife.] [Sidenote: Curtesy.] [Sidenote: Dower.] The husband was entitled to the control, use and enjoyment, together with the rents and profits of his wife's real estate during the marriage, and if a living child were born, he had, after the wife's death, a life estate in such property and might retain possession of it while he lived. This was known as the husband's title by curtsy. The wife took a dower, or life estate in one-third of the husband's lands after his death, whether there were children or not. This estate of dower was forfeited should the husband be found guilty of treason, but his interest in her lands was not disturbed by the treason of the wife. His life interest in her real estate attached to trust estates, but she could claim no interest in trust estates of her husband. If the wife owned leases of land they could be sold or assigned by the husband during marriage. If he survived his wife they belonged to him, if she survived him, they belonged to her, provided he had not disposed of them while living. [Sidenote: Descent of property.] Personal property descended to males and females in equal shares, but the oldest son was entitled to the whole of his father's real property. [Sidenote: Unity of person in criminal law.] The unity of husband and wife was not so strongly affirmed by the common law when it dealt with their relation to criminal matters. When a wife committed an offense against the state she possessed a separate and distinct life and personalty, for the purposes of punishment. It is true that she was still inferior and this distinction was recognized and emphasized by the difference in the penalties imposed for the commission of the same crimes, these penalties being in inverse ratio to the importance of the criminal. [Sidenote: Theft, burglary, etc.] [Sidenote: Presumption of innocence.] If a wife committed theft, burglary or other offenses in the company or presence of her husband, the law presumed that she acted under compulsion and held her not guilty, but this presumption did not extend to cases of murder or treason, and it might always be overcome by proof that she acted independently. The exception in cases of murder or treason, we are informed, was not alone because of the magnitude of the crimes, but rather on account of "the husband having broken through the most sacred tie of social community by rebellion against the state, had no right to that obedience from a wife which he himself, as a subject, had forgotten to pay." [Sidenote: Murder of wife.] [Sidenote: Murder of husband.] If a man murdered his wife it was as if he had murdered a stranger, and he might avail himself of the benefit of clergy, and secure immunity from punishment, provided he could read, but women were denied all benefit of clergy because of their sex, and because they "were not called upon to read." If a wife killed her husband it was a much more serious offense, he being her lord, and she was guilty of treason and subject to the same punishment as if she had killed the king. [Sidenote: Petit treason.] In cases of petit treason the penalty depended upon the sex of the criminal, men being sentenced to be drawn and hanged, while women were drawn and burnt alive. [Sidenote: Larceny, bigamy, etc.] In larceny, bigamy, manslaughter and other crimes, men might claim the benefit of clergy and by taking holy orders, escape all punishment, except branding in the hand and a few months imprisonment, while women might receive sentence of death and be executed for the first offense. Later the law was changed so that in cases of simple larceny under the value of ten shillings, they might be burned in the hand and whipped, stocked or imprisoned for any time not exceeding one year. The disability of sex and of ignorance were both finally removed and all men and women admitted to benefit of clergy. [Sidenote: Adultery and seduction.] [Sidenote: Rape.] By the common law, adultery and seduction were not classed with crimes, but were only civil injuries for which compensation might be recovered by husband, father or guardian, but the woman, who might be wronged, had no right of action for the injury to herself, and the State did not recognize any wrong to society by an injury to the person of one who was civilly dead. The crime of rape was punishable by death, and consent, though proved, was no defense, if the offense was committed upon a child under ten years of age. [Sidenote: Right of appeal.] Magna Charta, granted by King John, while redressing many hardships and grievances incident to feudal times, and confirming and securing to the people many rights and liberties, among which was the right of the wife to dower in her husband's property, denied to women the right of appeal except in case of the death of their husbands. The right of appeal was the privilege of private prosecution for crime. (Analogus to our present method of commencing prosecutions by information.) According to Blackstone, even the disabilities of the wife were for the most part intended for her protection and benefit, and he adds: "So great a favorite is the female sex of the laws of England!" [Sidenote: Reason for discrimination.] The discrimination made by the common law between men and women, was based alone upon the assumption that women were, and must be always dependent by reason of their sex. In the light of a broader humanity, the distinctions seem cruel and barbarous, but that they were the result of any spirit of injustice or intentional tyranny, or of any desire on the part of men to oppress women or impose upon them any hardship or burden because of their physical weakness, is not at all probable. They were merely the outgrowth of the conditions incident to ruder stages of social development, and were, perhaps, as favorable to women at that period, as the laws of our own times will be considered when judged in the light of the civilization of the future, after successive centuries of intellectual and moral growth have been added to the enlightenment of to-day. Law of Iowa. CHAPTER II. MARRIAGE. [Sidenote: Contract.] Marriage is a civil contract requiring the consent of parties capable of entering into other contracts, except as herein otherwise declared. [§3376.] While marriage is defined to be a contract, it is rather a status or relation assumed by the act of marriage. Society is recognized as a third party to the agreement and as having a well defined interest in the duties and obligations of such relation. It is because of this interest, that the law defines the qualifications of the parties, the terms, rights and obligations of the contract, and also for what causes and in what manner it may be terminated. "It stands alone and can be assimilated to no other contract." [Sidenote: Between what ages valid.] A marriage between a male person of sixteen and a female of fourteen years of age is valid, but if either party has not attained the age thus fixed, the marriage is a nullity or not at the option of such party made known at any time before he or she is six months older than the age thus fixed. [§3377.] The common law rule fixing the age of consent to marriage at fourteen for males and twelve for females is not repealed in Iowa. The time in which the parties may disaffirm the marriage is merely extended by the statute. [Sidenote: License.] Previous to any marriage within this state, a license for that purpose must be obtained from the clerk of the district court of the county wherein the marriage is to be solemnized. [§3378.] As under the common law, no express form or ceremony is necessary to constitute a valid marriage, any mutual agreement between the parties to assume the relation of husband and wife, followed by cohabitation, being sufficient, provided there is no legal disability on the part of either existing at the time. It is immaterial how the intention to marry is expressed. It has been held in this state that a marriage was legal, where the woman intended present marriage, though the man did not, where they had assumed the relation of husband and wife, and his conduct had been such as to justify her in believing that he had intended present marriage. Marriages by consent only, are not rendered void by a provision punishing parties for solemnizing marriages in any other manner than that prescribed by law. [Sidenote: Under age.] [Sidenote: Consent of parent.] Such license must not in any case be granted where either party is under the age necessary to render the marriage absolutely valid, nor shall it be granted where either party is a minor, without the previous consent of the parent or guardian of such minor, nor where the condition of either party is such as to disqualify him from making any other civil contract. [§3379.] [Sidenote: Proof of age.] Unless such clerk is acquainted with the age and condition of the parties for the marriage of whom the license is applied for, he must take the testimony of competent and disinterested witnesses on the subject. [§3380.] [Sidenote: Record.] He must cause due entry of the application for the issuing of the license to be made in a book to be procured and kept for that purpose, stating that he was acquainted with the parties and knew them to be of competent age and condition, or that the requisite proof of such fact was made known to him by one or more witnesses, stating their names, which book shall constitute a part of the records of his office. [§3381.] [Sidenote: Proof of consent of parent.] If either party is a minor, the consent of the parent or guardian must be filed in the clerk's office after being acknowledged by the said parent or guardian, or proved to be genuine, and a memorandum of such facts must also be entered in said book. [§3382.] [Sidenote: Penalty.] If the clerk of the district court grants a license contrary to the provisions of the preceding sections, he is guilty of a misdemeanor, and if a marriage is solemnized without such license being procured, the parties so married and all persons aiding in such marriage are likewise guilty of a misdemeanor. [§3883.] The punishment provided for misdemeanors is imprisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars, or by both fine and imprisonment. [Sidenote: Who may solemnize.] Marriages must be solemnized either: 1. By a justice of the peace or mayor of the city or incorporated town wherein the marriage takes place; 2. By some judge of the supreme or district court of this state; 3. By some officiating minister of the gospel ordained or licensed according to the usages of his denomination. [§3384.] [Sidenote: Certificate] After the marriage has been solemnized the officiating minister or magistrate shall, on request, give each of the parties a certificate thereof. [§3385.] [Sidenote: Penalty.] Marriages solemnized with the consent of parties in any other manner than is herein prescribed, are valid, but the parties themselves, and all other parties aiding or abetting, shall forfeit to the school fund the sum of fifty dollars each. [§3386.] [Sidenote: Return.] The person solemnizing marriage shall forfeit a like amount, unless within ninety days after the ceremony he shall make return thereof to the clerk of the district court. [§3387.] [Sidenote: Register of marriages.] The clerk of the district court shall keep a register containing the names of the parties, the date of the marriage, and the name of the person by whom the marriage was solemnized, which, or a certified transcript therefrom, is receivable in all courts and places as evidence of the marriage and the date thereof. [§3388] The register of marriages kept by the clerk is always sufficient to establish marriage, in the absence of evidence to the contrary, but record evidence is not indispensable. The fact of marriage may be shown in various ways. It may be proved by the admissions or uncontradicted testimony of either party, or a legal presumption may be raised by the testimony of either husband or wife with proof of continued cohabitation. The evidence of witnesses who were present and witnessed the marriage is always sufficient. [Sidenote: Peculiar mode.] These provisions so far as they relate to procuring licenses and to the solemnizing of marriages, are not applicable to members of any particular denomination having, as such, any peculiar mode of entering the marriage relation [§3389]. [Sidenote: Husband responsible for return.] But when any mode is thus pursued which dispenses with the services of a clergyman or magistrate, the husband is responsible for the return directed to be made to the clerk and is liable to the above named penalty if the return is not made [§3390]. [Sidenote: When void.] Marriages between persons whose marriage is prohibited by law, or who have a husband or wife living, are void; but if the parties live and cohabit together after the death of the former husband or wife, such marriage shall be deemed valid [§3392]. A judicial decree is not necessary to annul a marriage between parties one of whom has a wife or husband living at the time, as such marriages are absolutely void, nor does such marriage confer any right upon either in the property of the other. A marriage procured by fraud or force is void, because it lacks the essential element of consent. Such marriages may be annulled by a court of equity, but false representations as to character, social position or fortune do not constitute such fraud on the opposite party as to avoid a marriage induced thereby. CHAPTER III. HUSBAND AND WIFE [Sidenote: Property rights of married women.] A married woman may own in her own right, real and personal property acquired by descent, gift or purchase, and manage, sell, convey, and devise the same by will, to the same extent and in the same manner that the husband can property belonging to him. [§3393.] The husband is the legal head of the family and household furniture, pictures and all similar property used in the house occupied by husband and wife, is considered as being in the possession of the husband and under his control. Such property may be sold or mortgaged by the husband without the consent of the wife. Property conveyed to both jointly is held by them as tenants-in-common. Each owns an undivided one-half interest in such property, and this interest may be sold on execution to satisfy claims against husband or wife as the case may be. Property purchased with funds belonging to both husband and wife is owned by them jointly, the interest of each being in proportion to the amount of the purchase price contributed by each. [Sidenote: Real property, Conveyance, or contract.] A married woman may convey or encumber any real estate or interest therein belonging to her, and may control the same, or contract with reference thereto, to the same extent, and in the same manner as other persons [§3106]. [Sidenote: Conveyance by husband and wife.] Every conveyance made by a husband and wife shall be deemed sufficient to pass any and all right of either to the property conveyed, unless the contrary appears on the face of the conveyance [§3107]. While Iowa was still a territory, in 1840, power was conferred upon a married woman to release her dower and to convey her real estate by any conveyance executed by herself and husband and acknowledged by a separate examination and acknowledgment. This law was re-enacted in 1846, and was the first law passed in the State of Iowa for the better protection of married women. This remained the law until 1851, when an act was passed by which she might convey her interest in real estate "the same as any other person." [Sidenote: Interest of either in other's property.] When property is owned by either the husband or wife, the other has no interest therein which can be the subject of contract between them, or such interest as will make the same liable for the contracts or liabilities of either the husband or wife who is not the owner of the property, except as provided in this chapter. [§3394.] The distributive share or dower interest of each in the property of the other, is inchoate and becomes complete only upon the death of the owner of the property; consequently any agreement between the husband and wife relinquishing their respective interests in each other's property, though such agreement should be made in contemplation of separation is invalid. Upon a dissolution of the marriage relation by divorce, the husband and wife may contract with each other with reference to a division of the property, provided the contract is reasonable, just and right. A husband may pay taxes and interest on an incumbrance on a homestead owned by his wife, but occupied by both, and may make repairs upon the same. He may make improvements on land owned by the wife and may expend time and labor in caring for any of her property, without rendering such property liable for his debts, provided there is no collusion between them and no evidence of fraud on the part of either. A wife's property cannot be taken for her husbands debts, although it may be in possession of the husband and the creditors have no notice of the wife's ownership. [Sidenote: Remedy by one against the other.] Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried. [§3395.] If property or money belonging to the wife, but in possession of the husband is used by him, with her knowledge and consent, in the payment of debts incurred for family expenses, or for other purposes connected with the support of the family, she cannot recover for the same, in the absence of an express agreement on his part to repay her. If a wife advances money or property to her husband to be used as he may choose, the presumption is that she does so in view of the mutual benefits which may accrue from the advancement and she cannot recover the same unless there is an agreement for its repayment. [Sidenote: Husband not liable for wife's torts.] For all civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be responsible therefor except in cases where he would be jointly responsible with her if the marriage did not exist [§3396.] This statute abrogates the rule of the common law, making a husband responsible for civil injuries committed by his wife. The common law presumption that criminal acts done in the presence of the husband were by compulsion, is still recognized in this State but may be overcome by proof to the contrary. [Sidenote: Conveyances to each other valid.] [Sidenote: Conveyances to third parties.] A conveyance, transfer or lien executed by either husband or wife, to or in favor of the other shall be valid to the same extent as between other persons [§3397.] When the rights of creditors might be prejudiced by transfers of property between husband and wife, such transactions will be closely scrutinized, and the utmost good faith must plainly appear, but where no fraudulent intention is shown they will be upheld if based upon an adequate consideration. If a conveyance is made by the husband to the wife when the husband is largely indebted and insolvent, such conveyance is presumptively fraudulent, but a conveyance to a wife in payment of a valid claim, even though made at a time when the husband is largely indebted to others, will not be considered fraudulent the wife having the same right as other creditors to obtain payment. All contracts between husband and wife where no other consideration appears than an agreement to perform some duty already incumbent upon the parties, because of their relations as husband and wife, are against public policy, and will not be enforced in law. Such, for example, as a promise by the husband to pay money to the wife to induce her to live with him, when she has no legal ground for not living with him; or an agreement to allow the husband to obtain a divorce when he has no legal cause for divorce, or a conveyance of property in consideration of future care and support because the husband is growing old; or a contract between husband and wife by which the husband agrees to pay the wife at stated intervals, sums of money, in consideration of the faithful performance by the wife of the obligations incident to the marriage relation. But our courts have held that exempt property may be transferred by the husband to the wife without any consideration; that a deed from husband to wife in consideration of a dismissal by the latter, of a proceeding for divorce, is valid; that a contract between husband and wife by which the wife, for a consideration, after a decree of divorce, agrees to release all her dower interest in the real estate of the husband, is binding. Voluntary conveyances, in favor of third parties, by a man or woman in contemplation of marriage, and with the evident intention of defeating the marital rights of the other party, in such property, will be held fraudulent, and may be set aside in an action by the injured party after marriage. Contracts and conveyances made before marriage and duly recorded, will not be set aside on account of the marriage relation, as the fact of recording is sufficient to charge the wife with notice of the transactions. Ante-nuptial contracts, if free from fraud and imposition, are valid, and such a contract stipulating that each is to have the untrammeled and sole control of his or her own property, real and personal, as though no marriage had taken place, will be enforced. The dower right of each in the other's property is completely waived by such contract. [Sidenote: Abandonment of either.] In case the husband or wife abandons the other and leaves the state, and is absent therefrom for one year without providing for the maintenance and support of his or her family, or is confined in jail or the penitentiary for the period of one year or upward, the district court of the county where the husband or wife, so abandoned or not confined, resides, may, on application by petition setting forth fully the facts, authorize him or her, to manage, control, sell and encumber the property of the husband or wife for the support and maintenance of the family and for the purpose of paying debts. Notice of such proceedings shall be given as in ordinary actions, and anything done under or by virtue of the order of the court, shall be valid to the same extent as if the same was done by the party owning the property. [§3398.] A wife who is abandoned by her husband without her fault, may pledge his credit for necessaries, and if left in the management of his business may make all contracts incident to such management. She may also sell exempt property and apply the proceeds towards the support of the family before absolutely forced to do so by the destitution of the family. [Sidenote: Contracts and sales binding.] All contracts, sales or incumbrances made by either husband or wife by virtue of the power contemplated in the preceding section, shall be binding on both, and during such absence or confinement, the person acting under such power, may sue and be sued thereon, and for all acts done, the property of both shall be liable. No suit or proceeding shall abate or be in anywise affected by the return or release of the person confined, but he or she may be permitted to prosecute or defend jointly with the other. [§3399.] [Sidenote: Decree set aside.] The husband or wife affected by the proceedings contemplated in the preceding sections, may have the order or decree of the court set aside or annulled, but the setting aside of such decree or order shall in nowise affect any act done thereunder. [§3400.] [Sidenote: Attorney in fact.] A husband or wife may constitute the other his or her attorney in fact, to control and dispose of his or her property for their mutual benefit, and may revoke the same to the same extent and manner as other persons. [§3401.] The fact of the marital relation does not, of itself, establish the presumption that the husband is the agent of the wife, for the transaction of business for her, but in order to bind her, he must be expressly authorized to act as agent, or she must, after knowledge of the act, expressly or impliedly ratify it. Such agency or ratification may be established by circumstances, and the degree of evidence required in such cases, is less than is necessary to establish an agency between independent parties, or the ratification by the husband, of acts done by the wife or his agent. [Sidenote: Wages of wife.] A wife may receive the wages of her personal labor and maintain an action therefor in her own name, and hold the same in her own right; she may prosecute and defend all actions at law or in equity for the preservation and protection of her rights and property as if unmarried. [§3402.] The husband is entitled to the wife's labor and assistance in the duties and obligations growing out of the marriage relation, and to her earnings, if she is not engaged in a separate business on her own account; but her earnings for services performed for others than her husband or acquired in carrying on an independent business, belong to her alone. Such earnings may be invested in property and it will be exempt from seizure for debts of her husband. She may bring actions for injuries to herself, whether of person, property or reputation in the same manner as if she were unmarried. If she suffers personal injury by which the husband is deprived of her services or society he has a right of recovery for such loss and for expenses for medicine and medical treatment. The wife cannot recover in such case, unless it appears that she has expended her own money in payment of such expenses. If, at the time of the injury she is engaged in a separate business, and death results, the husband may still recover for loss of society and expenses, but an action for damages can be brought only by the administrator of her estate. Although husband or wife may maintain an action against the other for the recovery of property, neither has a right of action for damages sustained by the infliction of personal injury, and this is true even though the one inflicting the injury has been criminally convicted and fined for the assault. [Sidenote: Property of one not liable for debts of the other.] Neither husband or wife is liable for the debts or liabilities of the other incurred before marriage, and except as herein otherwise declared, they are not liable for the separate debts of each other; nor are the wages, earnings, or property of either, nor is the rent or income of such property liable for the separate debts of the other [§3403.] The husband is liable for necessaries furnished the wife, upon an implied obligation to provide for her a reasonable support. The term "necessaries," is not confined to the supply of things actually demanded for her sustenance, such as food, clothing and medicine, but includes all that may be needful for her comfort and happiness according to her rank and station in society. In determining the extent of the husband's liability, it is always proper to consider the wife's social position and the circumstances and condition of the family, and these will, of course, vary in each particular case. It has been held that jewelry is included in the term necessaries and that attorney's fees in divorce proceedings by the wife, can be recovered from the husband. If the wife is compelled to leave her husband because of cruel and improper conduct on his part, the husband is still presumed to have extended to her a general credit for necessaries, such as meat, drink, clothes, medicine, etc., suitable to his degree and circumstances. [Sidenote: Contracts of wife.] Contracts may be made by a wife and liabilities incurred, and the same enforced by or against her to the same extent and in the same manner as if she were unmarried [§3404.] By this provision a wife is clothed with the same rights enjoyed by her husband, and must, therefore, assume the same liabilities. She has the same freedom to contract in reference to her property, or other matters, and will be held to the same strict accountability. The law will enforce her obligations with the same impartiality, whether such obligations are express or implied. She may contract with reference to all kinds of property, including real estate, and may mortgage her property as security for the debt of another, in precisely the same manner that her husband could do in similar cases. [Sidenote: Family expenses.] The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately. [§3405.] Both husband and wife are personally responsible for family expenses. The credit may be extended to the husband and the contract made with him alone, and the wife will be liable though she may have no knowledge of the purchase and has given no consent thereto. It is sufficient to show that the articles were used, or kept for use in the family, and a judgment may be rendered against the wife alone. But the husband cannot subject the property of his wife to any liability for articles for family use when it appears that such articles were not a necessity, if the wife has objected to the purchase and notified the seller that she will not pay for the same. "Expenses of the family," are not limited to necessary expenses, but whatever is kept or used in the family is included in the term. A piano, an organ, a watch and other jewelry, a cook stove and fixtures, have all been held to come within the term "family expense," for which the property of the wife is liable. But a reaping machine, though used by the husband in the business by which he supports his family, is not a legitimate item of family expense, nor can a plow be included therein. The expense of treatment of a wife at a hospital for the insane, has been held not to be a family expense. Money borrowed by the husband and used in the purchase of articles which, if obtained on credit, would constitute items of family expense, cannot itself form such an item of family expense, that the wife may be held liable, unless the money was furnished at her request, and the account assigned to the party furnishing the money. If a merchant with whom the husband has no account is notified in writing, not to sell goods to the wife and charge them to him, the merchant cannot hold the husband responsible, unless it appears that the latter fails to provide necessaries otherwise for his family. If the family is supported in whole, or in part, by the wife, she cannot recover back the money thus expended, from her husband or his estate, as the law places such duty equally on both. [Sidenote: Removal from homestead.] Neither husband nor wife can remove the other, nor their children from their homestead without his or her consent, and if he abandons her, she is entitled to the custody of their minor children, unless the district court, upon application for that purpose, shall, for good cause, otherwise direct [§3406.] [Sidenote: Conveyance of property.] When either the husband or wife is insane, and incapable of executing a deed, and relinquishing or conveying his or her right to the real property of the other, the sane person may petition the district court of the county where such petitioner resides, or of the county where said real estate is situated, setting forth the facts and praying for an order authorizing the applicant or some other person to execute a deed of conveyance and thereby relinquish the interest of either in the real property of the other [§3407.] [Sidenote: Proceedings and decree.] Upon such application the court has power to appoint some person or attorney guardian of the person alleged to be insane, who shall ascertain as to the propriety, good faith and necessity of the prayer of the petitioner, and who shall have power to resist said application. If the court is satisfied that the petition is made in good faith, and that the petitioner is the proper person to exercise the power and make the conveyance, and that such power is necessary and proper, said court shall enter up a decree authorizing the execution of all such conveyances, for and in the name of such husband or wife, by such person as the court may appoint [§§3408-3409.] [Sidenote: Appointment, Revocation.] All deeds executed by the person thus appointed shall be valid in law, and shall convey the interest of such insane person in the real estate so conveyed; said power shall cease and become void as soon as he or she shall become sane and of sound mind, and apply to the court to revoke said power, and the same shall be evoked; but such revocation shall in nowise affect conveyances previously made. [§3410.] CHAPTER IV. DIVORCE, ANNULLING MARRIAGES AND ALIMONY. [Sidenote: Jurisdiction.] The district court where either party resides, has, jurisdiction of the subject matter of this chapter. [§3411]. State legislatures have power to grant divorces in all cases where such power has not been conferred on the courts of the state by some constitutional provision or legislative enactment. The legislature of this state has been deprived of the power to grant divorces for any cause by Article 3, §27, of the constitution, which provides that "no divorce shall be granted by the general assembly." A divorce obtained from a court not having jurisdiction is absolutely void. The residence necessary to give the court jurisdiction must be permanent, or at least of a sufficient period of time to indicate an intention of continued residence and citizenship. The general rule is that the domicile of the wife and children is to be considered the same as that of the husband, but in a proceeding for divorce the law recognizes that husband and wife have separate domiciles, and a valid divorce may be granted where only one of the parties resides, but if they reside in different states, the court having jurisdiction of the party making application for the divorce may grant the decree, but it has no authority to make a decree as to the custody of the children, if they are non-residents of the state where the decree of divorce is rendered. A decree of divorce can always be set aside for fraud in obtaining it. [Sidenote: Petition.] When the application for divorce is against a party not residing in this state, the petition, in addition to the facts on account of which the applicant claims the relief sought, must state that such applicant has been for the last year a resident of the state, stating the town and county in which he has resided, and the length of his residence therein, after deducting all absences from the state; that he is now a resident thereof; that such residence has been in good faith and not for the purpose of obtaining a divorce only; and it must in all cases state that the application is made in good faith and for the purpose set forth in the petition. [§3412.] [Sidenote: Verification. Evidence. Hearing.] All the allegations of the petition must be verified by oath and proved by competent evidence. No divorce shall be granted on the evidence of the applicant alone, and all such actions shall be heard in open court on the testimony of witnesses or depositions. [§3413.] No divorce can be granted by consent of parties unless grounds therefor can be shown by competent evidence, and if collusion or conrivance on the part of the defendant can be shown, such fact will be a valid defense. [Sidenote: Causes.] Divorce from the bonds of matrimony may be decreed against the husband for the following causes: 1. When he has committed adultery subsequent to the marriage; 2. When he wilfully deserts his wife and absents himself without a reasonable cause for the space of two years; 3. When he is convicted of felony after the marriage; 4. When, after marriage, he becomes addicted to habitual drunkenness; 5. When he is guilty of such inhuman treatment as to endanger the life of his wife. [§3414.] A previous law of our state provided that when it was fully apparent to the court that the parties could not live in peace and happiness together, and that their welfare required a separation, a decree of divorce might be granted, but no valid divorce can now be granted for any other cause than for some one of those enumerated above; and this is true, although it may plainly appear that a party has wholly disregarded his marriage vows and obligations in various other ways. [Adultery.] As the direct fact of adultery can seldom be proved, when a divorce is asked on this ground, it will be sufficient if the fact can be shown by circumstances which would be inconsistent with any rational theory of innocence, and such as would lead the guarded discretion of a just mind to the conclusion of the truth of the facts. The disposition of the parties may be shown, with the fact of their being together and having an opportunity to commit the act. [Sidenote: Desertion.] A reasonable cause for desertion must be some wrongful conduct on the part of the other party, and must be of such a serious nature that it would _prima facie_ entitle the party deserting to a divorce. If husband and wife mutually agree to separate, such separation will not constitute ground for divorce, unless the party applying for the divorce, in good faith expresses a desire to live with the other. Where the wife is compelled to leave her husband on account of inhuman treatment, such as would entitle her to a divorce, such desertion cannot be made the basis of proceedings for divorce by the husband, for in such case he and not she is guilty of desertion, and this may be alleged by the wife, with other causes, in seeking a divorce. A wife may be justified in leaving her husband because of his failure to protect her from insult and abuse, and when she leaves him for this cause, her desertion will not be grounds for divorce. [Sidenote: Felony.] A conviction for felony which may be subject to reversal does not constitute ground for divorce, but such conviction must be final and absolute. [Sidenote: Drunkenness.] If a woman marries a man knowing him to be intemperate, though she does so in the hope of reforming him, the courts will not interfere after marriage to grant her relief from the result of her misplaced confidence, but where the habit has been acquired subsequent to the marriage and has become fixed and the husband is habitually drunk, though not in such condition during business hours, it is such habitual drunkenness as will entitle the wife to a divorce. [Sidenote: Cruel treatment.] Cruel and inhuman treatment, to constitute ground for divorce must be of such a nature as to endanger life, but need not necessarily consist of physical violence. Even where no single act or number of acts can be shown which might cause reasonable apprehension of harm to life, if the ill treatment as an entirety is of a nature to affect the mind and undermine health to such a degree that the life will be ultimately endangered, it will entitle the injured party to a divorce. Ungovernable outbursts of rage, the use of profane and obscene language, applying insulting epithets to the wife in the presence of others, acts of cruelty and neglect in sickness, coupled with failure to provide suitable food and clothing, have all been held to be such cruelty, which, if long continued, would result in danger to life. Condonation is always a valid defense in proceedings for divorce. If the wrong is once forgiven, it cannot afterwards be made a ground for divorce, but the mere fact that a wife continues to live in the same house with her husband, and does the household work, is not such condonation as will defeat her action. [Sidenote: Husband from wife.] The husband may obtain a divorce from his wife for like causes, and also when the wife at the time of the marriage was pregnant by another than her husband, unless such husband had an illegitimate child or children then living, which was unknown to the wife at the time of the marriage. [§3415.] In many other states, divorce will be granted to the husband, for the cause here named, but in no other state is it provided that in such case, a husband who had an illegitimate child at the time of the marriage, unknown to the wife, cannot take advantage of this fact to obtain a divorce. [Sidenote: Cross petition.] The defendant may obtain a divorce for the causes as above stated, by filing a cross petition. [§3416.] [Sidenote: Maintenance during litigation.] The court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action. [§3417.] In applying for an order granting temporary alimony it is not necessary to show that the party making the application is entitled to a divorce. It is sufficient if it appears that such party is without means of support and unable to prosecute the action without such allowance. The fact of marriage must be either admitted or proved. The court may allow attorney's fees in proceedings for divorce and alimony, but the party against whom the action is brought, is not liable, if the other party is unsuccessful. Where the applicant for divorce is ordered to pay a certain sum of money to enable the defendant to defend, it he fails to obey this order, the action may be dismissed. If it appears that the father is an unfit person to have the custody of the children, pending a proceeding for divorce, the court has power to provide for their custody and maintenance as may be for the best interest of the children. [Sidenote: Attachment.] A judgment or order for temporary alimony is a lien upon the property of the person against whom the order is directed, and such property may be levied upon by attachment and held to satisfy the decree of the court. [§3418.] Attachment may be allowed without bond and it may be granted in a suit to annul an illegal marriage as well as in one for divorce. It may be levied on the homestead as well as other property. The disposition of property by the defendant may also be restrained by injunction. [Sidenote: Showing.] In making such orders, the court or judge shall take into consideration the age, condition, sex and pecuniary condition of the parties, and such other matters as are deemed pertinent, which may be shown by affidavits in addition to the pleadings or otherwise, as the court or judge may direct. [§3419.] [Sidenote: Alimony, Custody of children, Changes.] When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right and proper. Subsequent changes may be made by the court, in these respects when circumstances render them expedient. [§8420.] In granting a divorce, full power is given the court over the questions of permanent alimony and custody of children, and the amount of alimony will be determined by a careful consideration of the circumstances of the parties. The allowance is usually for a certain sum of money, but the court may set apart a specific portion of property as alimony. Only in rare cases and under peculiar circumstances will alimony be granted to the party in fault. A judgment for alimony may be made a lien upon specific property, and the court may declare it a lien on the homestead. The court granting a divorce and alimony retains jurisdiction of the same, and upon a subsequent change in the circumstances of the parties, may modify or change the decree in relation to alimony and custody of children as may seem just and proper and for the best interests of all parties. A suit for alimony without divorce may be brought, where the wife has been compelled to leave her husband on account of misconduct on his part justifying the separation. The disposition of the children is entirely within the discretion of the court, and the custody may be given to either party or may be taken from both and given to a guardian, if it can be shown that neither parent is a proper person to care for them. The best good of the child will be the first and most important consideration in determining to whom the custody shall be given. [Sidenote: Forfeiture.] When a divorce is decreed the guilty party forfeits all rights acquired by the marriage. [§3421.] After a decree of divorce neither party can have any interest in the property of the other except that which is granted by the decree, and this applies to claim for dower in case of survival. [Sidenote: Annulling illegal marriages.] Marriages may be annulled for the following causes: 1. Where marriage between the parties is prohibited by law. 2. Where either party was impotent at the time of the marriage. 3. Where either party has a husband or wife at the time of the marriage, provided they have not continued to live and cohabit together after the death of the former husband or wife. 4. Where either party was insane or idiotic at the time of the marriage. [§3422.] If a person marries who has a husband or wife living such marriage is absolutely void. In case of absence of the husband a presumption of death does not arise until he has been absent seven years without intelligence concerning him. Where a party is insane or idiotic, and is therefore incapable of consenting, a marriage with such person will be void. When a marriage is absolutely void by law, it is not necessary to bring an action to annul it, before contracting a subsequent legal marriage. [Sidenote: Petition.] A petition shall be filed in such cases as in actions for divorce, and all the provisions of this chapter shall apply to such cases except as otherwise provided. [§3423] [Sidenote: Validity determined.] When the validity of a marriage is doubted, either party may file a petition and the court shall decree it annulled or affirmed according to the proof. [§3424] [Sidenote: Children. Legitimacy.] When a marriage is annulled on account of the consanguinity or affinity of the parties, or because of impotency, the issue shall be illegitimate, but when on account of non-age, or insanity, or idiocy, the issue is the legitimate issue of the party capable of contracting marriage. [§3425] [Sidenote: Prior marriage.] When a marriage is annulled on account of a prior marriage, and the parties contracted the second in good faith, believing the prior husband or wife to be dead, that fact shall be stated in the degree of nullity; and the issue of the second marriage, begotten before the decree of the court, is the legitimate issue of the parent capable of contracting. [§3426.] [Sidenote: Alimony.] In case either party entered into the contract of marriage in good faith, supposing the other to be capable of contracting, and the marriage is declared a nullity, such fact shall be entered in the decree, and the court may decree such innocent party compensation as in cases of divorce. [§3427.] CHAPTER V. MINORS AND GUARDIANSHIP. [Sidenote: Majority.] The period of minority extends in males to the age of twenty-one years, and in females to that of eighteen, but all minors attain their majority by marriage. [§3428.] The disability of minority may also be terminated by death. [Sidenote: Contracts.] [Sidenote: Disaffirmance.] A minor is bound not only by contracts for necessaries, but also for his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract and remaining within his control at any time after his attaining his majority. [§3429.] The rule respecting the contract of an infant is, that when the court can pronounce it to be to the infant's prejudice, it is void, and when to his benefit, as for necessaries, it is good, and when of uncertain nature, it is voidable, at the election of the infant. As to what will be "a reasonable time," within which a minor must disaffirm his contract, must depend upon the peculiar circumstances of each case. In case of the marriage of a minor the time for disaffirmance will commence from the date of the marriage. The intention of this law is to limit the time in which a minor may take advantage of his minority and disaffirm his contracts, but the disaffirmance may be either before or after majority, if within a reasonable time after becoming of age. The minor is under no obligation to restore money or property, unless it is the identical money or property received by virtue of the contract, and he may therefore disaffirm his contract without rendering back the consideration, if such consideration is no longer under his control. [Sidenote: Misrepresentations. Engaging in business.] No contract can be thus disaffirmed in cases, where on account of the minor's own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party had good reason to believe the minor capable of contracting. [§3430.] If the fact of minority is known to the other party, the minor will not be bound by his contracts, although he may be engaged in business as an adult. The fact that he is engaged in business on his own account will alone be sufficient evidence to authorize others to conclude that he has attained his majority and will make all contracts to which he is a party, binding upon him. [Sidenote: Natural guardians.] The parents are the natural guardians of their minor children and are equally entitled to the care and custody of them. [§3432.] While a parent is the natural guardian of his child, this guardianship is not absolute, and may be lost by any misconduct on the part of the parent which would render it not best for the child to remain in his care and under his control. The duty of furnishing support to minor children rests equally upon both parents, but neither one is legally liable for the support of their adult children. An adult child living at home in the family of the parent, being supported as a member of the family, and performing services in the household, cannot recover payment for such services in the absence of an express contract on the part of the parent to pay for them. A stepfather stands in the position of a parent to the children of his wife by a former husband, _provided_, he receives them into his family. He is entitled to their services and is responsible for their education and maintenance. The parents can at any time consent to surrender the custody of their minor children and transfer this custody to another by agreement. Articles of adoption properly executed according to the requirements of the law upon that subject, are necessary to invest another with the rights and responsibilities of a parent. [Sidenote: Surviving parent, Guardian appointed.] Either parent dying before the other, the survivor becomes the guardian. If there be no parent or guardian qualified and competent to discharge the duty, the district court shall appoint a guardian. [§3488.] [Sidenote: Of property.] If the minor has property not derived from either parent, a guardian must be appointed to manage such property, which may be either parent, if suitable and proper. [§3434.] [Sidenote: Minor may choose.] If the minor be over the age of fourteen years and of sound intellect, he may select his own guardian, subject to the approval of the district court of the county where his parents, or either of them resides; or, if such minor is living separate and apart from his parents, the district court of the county where he resides has jurisdiction. [§3435.] [Sidenote: Powers.] Guardians of the persons of minors have the same power and control over them that parents would have if living. [§3440.] [Sidenote: Duties.] Guardians of the property of minors must prosecute and defend for their wards. They must also in other respects manage their interests under the direction of the court. They may thus lease their lands or loan their money during their minority, and may do all other acts which the court may deem for the benefit of the ward. [§3441.] All power of the guardian over the estate of his ward is derived from the appointment of the court, but an appointment as guardian will not authorize a sale of property, nor an investment or disposal of money belonging to the ward, without a special order of the court. All expenses for the education and maintenance of the ward must be kept within the income of his estate. If this should not be sufficient the principal may be resorted to, but not without an order of the court. All transactions between guardian and ward, where the former has secured an apparent advantage, by way of gift, or contract or settlement, will be presumed to have been the result of undue influence, and will be set aside by a court of equity, unless it can be shown that they were made in good faith and for a fair and valuable consideration. [Sidenote: Property in state.] The foreign guardian of any non-resident minor, may be appointed the guardian in this state of such minor, by the district court of the county wherein he has any property, for the purpose of selling or otherwise controlling that and all other property of such minor within the state, unless a guardian has previously been appointed under the preceding section. The foreign guardian of any non-resident idiot, lunatic or person of unsound mind may be appointed the guardian of such ward by the district court in like manner and with like effect in all cases where the foreign guardian of a non-resident minor could be appointed the guardian of such minor in this state. Such guardian shall have the same powers and be subject to the same liabilities as guardians of resident minors. [§3457.] [Sidenote: Guardians of drunkards, spendthrifts and lunatics.] When a petition is presented to the district court, verified by affidavit, that any inhabitant of the county is: 1. An idiot, lunatic, or person of unsound mind; 2. An habitual drunkard incapable of managing his affairs; 3. A spendthrift who is squandering his property, and the allegations of the petition have been satisfactorily proved upon the trial, such court may appoint a guardian of the property of any such person, who shall be the guardian of the minor children of his ward, unless the court otherwise orders. Such court may also appoint the guardian of the property of an habitual drunkard as the guardian of his person. If the person adjudged to be an habitual drunkard has no property, the court may appoint a guardian of his person. [§3463 Sup.] [Sidenote: Order for restraint of drunkard.] The district court or any judge thereof, may, from time to time, enter such orders as may be necessary, authorizing the guardian of the person of such habitual drunkard to confine and restrain him in such manner and in such place within the state as may, by the court or judge, be considered best for the purpose of preventing such drunkard from using intoxicating liquors, and as may tend to his reformation. [§3468a Sup.] When it is sought to have a guardian appointed for a person of unsound mind, the test of his mental capacity is not the degree of prudence and foresight he manifests in the management of his affairs, for "the law does not assume to measure the different degrees of power of the human intellect, or to distinguish between them where the power of thought and reason exists," but the question to be determined is whether or not he possesses sufficient ability to understand in a reasonable manner the nature and effect of his acts, or the business he is transacting. "Although the mind of an individual may be to some extent impaired by age or disease, still, if he is capable of transacting his ordinary business, if he understands the nature of the business in which he is engaged and the effect of what he is doing and can exercise his will with reference thereto, his acts will be valid," and he will not be adjudged to be of unsound mind and incapable of managing his business affairs. [Sidenote: Real estate sold. Allowance to family.] Whenever the sale of the real estate of such ward is necessary for his support or the support of his family or the payment of his debts, or will be for the interest of his estate or children, the guardian may sell the same under like proceedings as required by law to authorize the sale of real estate by the guardian of a minor. The court shall, if necessary, set off to the wife and children under fifteen years of age, of the insane person or to either sufficient of his property of such kind as it shall deem appropriate to support them for twelve months from the time he was adjudged insane. [§3467.] [Sidenote: Custody] The priority of claim to the custody of any insane person, habitual drunkard, or spendthrift aforesaid, shall be: 1. The legally appointed guardian. 2. The husband or wife. 3. The parents. 4. The children. [§3470.] CHAPTER VI. APPRENTICING AND ADOPTION OF CHILDREN. [Sidenote: Minors.] Any minor child may be bound to service until the attainment of the age of legal majority as hereinafter described. [§3471.] [Sidenote: Indenture.] Such binding must be by written indenture, specifying the age of the minor and the terms of agreement. If the minor is more than twelve years of age and not a pauper, the indenture must be signed by him of his own free will. [§3472.] [Sidenote: Consent of parent or guardian.] A written consent must be appended to or endorsed upon such agreement, and signed by one of the following persons, to-wit: 1. By the father of the minor; but if he is dead or has abandoned his family, or is for any cause incapacitated from giving his assent, then 2. By the mother; and if she be dead or unable, or incapacitated for giving such assent, then, 3. By the guardian; and if there be no guardian, then by the clerk of the district court. [§3473.] [Sidenote: Natural guardian removed.] Upon complaint being made to the district court of the proper county, verified by affidavit, that the father or mother of a minor child is from habitual intemperance and vicious and brutal conduct, or from vicious, brutal and criminal conduct toward said minor child, an unsuitable person to retain the guardianship and control the education of such child, the court may, if it find the allegations in the complaint manifestly true, appoint a proper guardian for the child, and may if expedient, also direct that said child be bound as an apprentice to some suitable person until he attains his majority. But nothing herein shall be so construed as to take such minor child if the mother be a proper guardian. [§3492.] The same proceedings may take place and a like order be made, when the mother, who for any cause became the guardian of her minor child, is in like manner found to be manifestly an improper person to retain such guardianship. [§3493.] [Sidenote: Schooling and treatment of minors.] The master shall send said minor child, after the same be six years old, to school at least four months in each year, if there be a school in the district, and at all times the master shall clothe the minor in a comfortable and becoming manner. [§3497.] [Sidenote: Adoption of children. Who may adopt.] Any person competent to make a will is authorized in manner hereinafter set forth, to adopt as his own the minor child of another, conferring thereby upon such child all the rights, privileges and responsibilities which would pertain to the child if born to the person adopting, in lawful wedlock. [§3498.] [Sidenote: Consent of parents or officer.] In order thereto, the consent of both parents if living and not divorced or separated, and if divorced or separated, or, if unmarried, the consent of the parent lawfully having the care and providing for the wants of the child, or if either parent is dead, then the consent of the survivor, or if both parents be dead, or the child shall have been and remain abandoned by them, then the consent of the mayor of the city where the child is living, or if not in a city, then the clerk of the district court of the county where the child is living, shall be given to such adoption, by an instrument in writing signed by the parties or party consenting, and stating the names of the parents, if known, the name of the child, if known, the name of the person adopting such child, and the residence of all, if known, and declaring the name by which such child is hereafter to be called and known, and stating also that such child is to be given to the person adopting, for the purpose of adoption as his own child. [§3499] [Sidenote: Instrument acknowledged and recorded.] Such instrument in writing shall be also signed by the person adopting and shall be acknowledged by all parties thereto in the same manner as deeds affecting real estate are required to be acknowledged; and shall be recorded in the recorder's office in the county where the person adopting resides, and shall be indexed with the name of the parents by adoption as grantors and the child as grantee, in its original name if stated in the instrument, [§3500.] A strict compliance in every particular with the provisions of the statutes is essential to constitute a legal adoption and to confer upon the adopted child rights of inheritance. If a minor child has a guardian his consent must be obtained before the child can be legally adopted. [Sidenote: Effect.] Upon the execution, acknowledgment and filing for record of such instrument, the rights, duties and relations between the parent and child by adoption, shall, thereafter, in all respects, including the right of inheritance, be the same that exists by law between parent and child by lawful birth. [§3501]. The right of a child by adoption to inherit from the parents by adoption, depends upon a strict compliance with the requirements of the law in every particular, including the acknowledgment and recording of the articles of adoption. It is also essential that the instrument shall be filed for record before the death of the adopted parent and while the child is a minor. A child by adoption does not lose the right to inherit from his natural parents, but is entitled to all rights of inheritance from both natural and adopted parents. [Sidenote: Maltreatment.] In case of maltreatment committed or allowed by the adopted parent, or palpable neglect of duty on his part, toward such child, the custody thereof may be taken from him and entrusted to another at his expense, if so ordered by the district court of the county where the parent resides; or the court may, on showing of the facts, require from the adopted parent, bond with security, in a sum to be fixed by him, the county being the obligee, and for the benefit of the child, conditioned for the proper treatment and performance of duty towards the child on the part of the parent; but no action of the court in the premises shall affect or diminish the acquired right of inheritance on the part of the child, to the extent of such right in a child of natural birth. [§3502.] [Sidenote: Home for the friendless Powers.] Any home for the friendless incorporated under the laws of this state, shall have authority to receive, control and dispose of minor children, under the following provisions. In case of the death or legal incapacity of the father, or in case of his abandoning or neglecting to provide for his children, the mother shall be considered their legal guardian for the purpose of making surrender of them to the charge and custody of such corporation; and in all cases where the person or persons legally authorized to act as the guardian or guardians of any child are not known, the mayor of the town or city where such home is located, may, in his discretion, surrender such child to said home. [§3503.] [Sidenote: Surrender of child.] In case it shall be shown to any judge of a court of record, or to the mayor, or to any justice of the peace, within such city or town, that the father of any child is dead, or has abandoned his family, or is an habitual drunkard, or imprisoned for crime, and the mother of such child is an habitual drunkard or is in prison for crime, or the inmate of a house of ill-fame, or is dead or has abandoned her family, or that the parents of any child have abandoned or neglected to provide for it, then such judge, mayor, or justice of the peace may, if he thinks the welfare of the child requires it, surrender such child to said home. [§3504] [Sidenote: Home becomes guardian.] When a child has been surrendered to any home for the friendless according to the provisions of these sections, such home becomes the legal guardian of such child, and may exercise the rights and authority of parents over such children and may apprentice or provide for the adoption of the same. [§3505.] CHAPTER VII. WILLS AND LETTERS OF ADMINISTRATION. [Sidenote: Who may make wills.] [Sidenote: Of what property] Any person of full age and sound mind may dispose, by will, of all his property except what is sufficient to pay his debts, or what is allowed as a homestead, or otherwise given by law as privileged property to his wife and family. [§3522.] The validity of a will depends upon the mental capacity of a testator and the fact that he was uninfluenced in making the disposition of his property. If it appears that the testator was incapable of exercising discretion and sound judgment and of fully realizing the effect and consequences of the will, though he may not be absolutely insane, he will not be in such mental condition that he can make a legal will. If he is of weak mind and it appears that he was imposed upon or unduly influenced, such facts will invalidate the will. A testator having testamentary capacity may dispose of his property in any manner, and to any person he may choose, and may deprive his heirs of any share in his estate, without any explanation or any express declaration of disinheritance. The fact that a will is unjust and unreasonable, in the absence of proof of undue influence, or insufficient capacity, will not render the will void. [Sidenote: Subsequent property.] Property to be subsequently acquired may be devised when the intention is clear and explicit. [§3523.] If the intention to convey property acquired after the execution of the will is apparent or may be inferred from a fair construction of the language used, it will be sufficient, although the intention may not be directly expressed. [Sidenote: Verbal wills.] Personal property to the value of three hundred dollars may be bequeathed by a verbal will, if witnessed by two competent witnesses. [§3524.] [Sidenote: Soldier or mariner.] A soldier in actual service, or a mariner at sea, may dispose of all his personal estate by a will so made and witnessed. [§3525.] [Sidenote: In writing. Witnessed. Signed.] All other wills, to be valid, must be in writing, witnessed by two competent witnesses and signed by the testator, or by some other person in his presence and by his express direction. [§3526.] It is necessary that the witnesses shall subscribe the will, but not that they shall have any knowledge of its contents, nor that they shall see the testator sign it. It is sufficient if the signature is adopted or acknowledged in their presence. If a will is made with the intention of disposing of real property it must be executed according to the requirements of the laws of the state where the real property is situated. [Sidenote: Interest of witness.] No subscribing witness to any will can derive any benefit therefrom, unless there be two disinterested and competent witnesses to the same. [§3527.] But if, without a will, he would be entitled to any portion of the testator's estate, he may still receive such portion to the extent in value of the amount devised. [§3528.] [Sidenote: Revocation.] Wills can be revoked in whole or in part, only by being canceled or destroyed by the act or direction of the testator with the intention of so revoking them, or by the execution of subsequent wills. [§3529.] The birth of a child after the execution of a will but before the death of the testator, operates as a revocation of the will, and the birth and recognition of an illegitimate child has the same effect. Declarations of the testator to the effect that he intended to revoke the will, will not be sufficient to prove a cancellation. [Sidenote: Cancellation.] When done by cancellation, the revocation must be witnessed in the same manner as the making of a new will. [§3530.] [Sidenote: Executors.] If no executors are named in the will, one or more may be appointed to carry it into effect. [§3532.] [Sidenote: Posthumous children.] Posthumous children unprovided for by the father's will, shall inherit the same interest as though no will had been made. [§3534.] [Sidenote: Heirs of a devisee.] If a devisee die before the testator, his heirs shall inherit the amount so devised to him unless from the terms of the will a contrary intent is manifest. [§3537.] The word heir in this section does not include the widow of the testator, and she cannot inherit from a child to whom property has been devised by his father, but who has died before the father. [Sidenote: Married women.] A married woman may act as executor independent of her husband. [§3545.] [Sidenote: Minors.] If a minor under eighteen years of age is appointed executor, there is a temporary vacancy as to him until he reaches that age. [§3546.] [Sidenote: Administration. Who entitled. Order.] In other cases where an executor is not appointed by will, administration shall be granted: 1. To the wife of the deceased; 2. To his next of kin; 3. To his creditors; 4. To any other person whom the court may select. [§3555.] [Sidenote: Classes united.] Individuals belonging to the same or different classes, may be united as administrators whenever such course is deemed expedient. [§3556.] [Sidenote: Time allowed.] To each of the above classes in succession a period of twenty days, commencing with the burial of the deceased, is allowed within which to apply for administration upon the estate. [§3557.] CHAPTER VIII. SETTLEMENT OF THE ESTATE--DESCENT AND DISTRIBUTION OF PROPERTY. [Sidenote: Exempt personal property.] When the deceased leaves a widow, all the personal property which, in his hands as head of the family, would be exempt from execution, after being inventoried and appraised, shall be set apart to her as her property in her own right, and be exempt in her hands as in the hands of the decedent. [§3575.] This provision secures an advantage to the wife which does not exist in favor of the husband. Upon the death of the wife all personal property belonging to her, whether exempt or not, passes to her administrator to be distributed by him among her heirs. A widow is not entitled to pension money, although the same was exempt in the hands of her husband, the exemption being for the benefit of the pensioner as such, and not as head of a family. [Sidenote: Life insurance.] The avails of any life insurance or any other sum of money made payable by any mutual aid or benevolent society upon the death of a member of such society, are not subject to the debts of the deceased, except by special contract or arrangement, but shall in other respects, be disposed of like other property left by the deceased. [§3576.] A policy of insurance on the life of an individual, in the absence of an agreement or assignment to the contrary shall inure to the separate use of the husband or wife and children of said individual, independently of his or her creditors. And the avails of all policies of insurance on the life of an individual payable to his surviving widow, shall be exempt from liabilities for all debts of such beneficiary contracted prior to the death of the deceased, provided that in any case the total exemption for the benefit of any one person shall not exceed the sum of five thousand dollars. [§1756, Sup.] The contract between the assured and the insurance company, cannot be changed in any particular without the consent of the company, and a testator cannot, by will, change the beneficiary named in the policy unless it is expressly so provided in the contract. Where a policy is made payable to the assured or his legal representatives, the proceeds of the policy will pass to the administrator of his estate, and will be paid to the wife and children, but no part can be distributed to other heirs. If the assured leaves a wife or husband and no children, the entire proceeds of the policy will go to the wife or husband, and after they have passed into the hands of the beneficiary, they will not be subject to execution for the payment of his or her debts, provided they do not exceed the sum of five thousand dollars. A wife is not her husband's "legal heir" and the entire proceeds of a policy or certificate of insurance made payable to the assured or his "legal heirs" will go to the children of the deceased. [Sidenote: Allowance to widow and children.] The court shall if necessary, set off to the widow and children under fifteen years of age, of the decedent, or to either, sufficient of the property of such kind as it shall deem appropriate to support them for twelve months from the time of his death. [§3579.] The allowance to the widow takes priority over all other claims against the estate, and should be paid immediately. If the widow and children have no other means of support the allowance may be made though the estate is insolvent. It is no part of the dower interest, but is a separate and distinct right which may be made in addition to dower, or even in cases where by contract made before marriage, all rights to dower and inheritance have been relinquished. Real estate may be sold if necessary, where the personal property is not sufficient to provide for the allowance to the widow and children, and the widow may claim the allowance although there are no children, and she may have property of her own, if the income of such property is not sufficient for her support. [Sidenote: Expenses of funeral.] As soon as the executors are possessed of sufficient means, over and above the expenses of administration, they shall pay off the charges of the last sickness and funeral of deceased. [§3622.] [Sidenote: Allowance.] They shall, in the next place, pay any allowance which may be made by the court for the maintenance of the widow and minor children. [§3623.] After the funeral expenses and the allowance to the widow and children have been paid, the claims against the estate will be discharged in the order provided by law, after which, the balance of the property, devised by will after all expenses of administration have been paid, will be distributed to the different legatees. [Sidenote: Descent and distribution. Personal property.] The personal property of the deceased, not necessary for the payment of debts, nor otherwise disposed of as hereinbefore provided, shall be distributed to the same persons and in the same proportions as though it were real estate. [§3640.] A husband cannot, by will, deprive his wife of her share in his personal estate, after his death, but he may dispose of it during his lifetime in any manner he may choose. [Sidenote: Payment.] The distributive shares shall be paid over as fast as the executors can properly do so. [§3641.] [Sidenote: In kind.] The property itself shall be distributed in kind whenever that can be done satisfactorily and equitably. In other cases the court may direct the property to be sold, and the proceeds to be distributed. [§3641.] [Sidenote: Partial distribution.] When the circumstances of the family require it, the court, in addition to what is hereinbefore set apart for their use, may direct a partial distribution of the money or effects on hand. [§3643.] [Sidenote: Share of husband or wife.] [Sidenote: Dower and curtesy.] One-third in value of all the legal or equitable estates in real property, possessed by the husband at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in fee-simple, if she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving husband. All provisions made in this chapter in regard to the widow of a deceased husband, shall be applicable to the surviving husband of a deceased wife. The estates of dower and curtesy are hereby abolished. [§3644] While the estate of dower is abolished by statute, and a wife takes her distributive share of the property in its stead, yet this distributive share is still commonly designated by the term "dower." The dower interest of the wife is not subject to the debts of her husband. A wife may release her right of dower in real property by joining in a joint deed with her husband, although the deed may contain no express relinquishment of dower. Contracts between husband and wife, though for a legal and valuable consideration, or with a view to separation are invalid, the interest of either during the lifetime of both, being merely contingent and inchoate, but an agreement previous to marriage by which each waives all right in the other's estate, or by which the wife relinquishes her right of dower, is valid. A woman can claim no dower in her husband's estate, after his death, if she has procured a divorce from him while living and the divorce is in force at the time of his death. Where the provisions of a will gives the wife a certain interest in the estate, she may always elect whether she will take her dower interest or under the will. [Sidenote: Homestead.] The distributive share of the widow shall be so set off as to include the ordinary dwelling-house given by law to the homestead, or so much thereof as will be equal to the share allotted to her by the last section, unless she prefers a different arrangement. But no different arrangement shall be permitted where it would have the effect of prejudicing the rights of creditors. [§3645.] If the distributive share of either husband or wife is set out to the survivor from the homestead, it will still retain its homestead character, and will be exempt from execution for the payment of debts. [Sidenote: Widow of alien.] The widow of a non-resident alien shall be entitled to the same rights in the property of her husband, as a resident, except as against a purchaser from the decedent. [§3646.] The term "non-resident alien" does not refer to one who resides out of the United States, but to non-residents of the state, who may reside in other states; the purpose of the statute being to encourage the purchase of lands within the state from non-resident owners, and to protect purchasers of such real estate from claims for dower or distributive share therein. [Sidenote: How set off.] The share thus allotted to her may be set off by the mutual consent of all parties interested, when such consent can be obtained, or it may be set off by referees appointed by the court. [§3647.] [Sidenote: Application] The application for such measurement by referees, may be made any time after twenty days and within ten years after the death of the husband, and must specify the particular tracts of land in which she claims her share, and ask the appointment of referees. [§3648.] [Sidenote: Widow's share not affected by will.] The widow's share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall be entered on the proper records of the district court. [§3656.] This provision applies equally to the husband's rights under the will of the wife, and it applies to wills made before marriage, as well as to those executed after marriage. Where there is no express provision in the will that a devise to the wife is in lieu of dower, she will take her distributive share of the estate in addition to the property devised to her by will, unless the allowance of dower would be inconsistent with other provisions of the will. The devise of a life estate to a wife will not defeat her right to her distributive share in the real estate owned by the husband at the time of his death. [Sidenote: Descent. To children.] Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died, shall, in the absence of other arrangements by will, descend in equal shares to his children. [§3657.] [Sidenote: Share of deceased child.] If any one of his children be dead, the heirs of such child shall inherit his share in accordance with the rules herein prescribed in the same manner as though such child had outlived his parents. [§3658.] The mother of a child which dies while both of its parents are living cannot, upon the death of its father, claim any share in his estate, as heir of such child. [Sidenote: Wife and parents.] If the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to his wife; if he leaves no wife, the portion which would have gone to her, shall go to his parents, [§3659.] The one-third which the wife takes as her distributive share is all that may be held exempt from debts. The additional share of the estate which she takes in case there are no children, is subject to claims by creditors of the husband. [Sidenote: Surviving parents.] If one of his parents be dead, the portion which would have gone to such deceased parent, shall go to the surviving parent, including the portion which would have gone to the intestate's wife had she been living. [§3660.] [Sidenote: Heirs of parents.] If both parents be dead, then the portion which would have fallen to their share, by the above rules shall be disposed of in the same manner as if they had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, and so on through ascending ancestors and their issue. [§3661.] [Sidenote: Wife and her heirs.] If heirs are not thus found, the portion uninherited shall go to the wife of the intestate, or to her heirs if dead, according to like rules; and if he has had more than one wife who either died or survived in lawful wedlock, it shall be equally divided between the one who is living and the heirs of those who are dead, or between the heirs of all, if all are dead, such heirs taking by right of representation. [§3662.] [Sidenote: Advancement.] Property given by an intestate by way of advancement to an heir, shall be considered part of the estate so far as regards the division and distribution thereof, and shall be taken by such heir, towards his share of the estate at what it would now be worth if in the condition in which it was given to him. But if such advancement exceeds the amount to which he would be entitled, he cannot be required to refund any portion thereof. [§3663.] A gift to an heir by way of advancement, cannot be considered as any part of the estate for the purpose of increasing the distributive share of the widow, but is to be estimated as part of such heir's share of the property, after the allowance to the wife of her interest. [Sidenote: Where there are no heirs.] If there be property remaining uninherited, it shall escheat to the state. [§3665.] [Sidenote: Illegitimate children. Inherit from mother.] Illegitimate children inherit from the mother and the mother from the children. [§3670.] A child born at any time during lawful wedlock is presumed by the law to be legitimate, but where questions of inheritance are involved, this presumption may be overcome by proof to the contrary. [Sidenote: Inherit from father.] They shall inherit from the father whenever the paternity is proven during the life of the father, or they have been recognized by him as his children, but such recognition must have been general and notorious or else in writing. [§3671.] The recognition in writing need not be a formal avowal. Any writing, as by letter or otherwise, is sufficient. For the purposes of inheritance an illegitimate child stands on exactly the same footing as if it were legitimate after it has been recognized by the father, and the birth and recognition of such child revoke a will in the same manner as the birth of a legitimate child, subsequent to the execution of the will. [Sidenote: Father inherits from child.] Under such circumstances, if the recognition of relationship has been mutual, the father may inherit from his illegitimate children. [§3672.] CHAPTER IX. HOMESTEAD AND EXEMPTIONS. [Sidenote: Homestead exempt.] Where there is no special declaration of the statute to the contrary, the homestead of every family, whether owned by the husband or wife is exempt from judicial sale, [§3163.] A homestead right may exist in property purchased under a bond for a deed, if payments have been made and the purchaser is in possession. Actual occupancy is necessary to invest property with the homestead character, but as the exemption right is for the benefit of the whole family and not alone of the owner, the fact that the head of the family is absent, and may even have acquired property and residence in another state with the intention of removing his family there, will not divest the homestead of its exemption right, so long as the family continues to occupy it. And the fact that the husband has abandoned the homestead will not affect the homestead right, so long as the wife and family remain in occupancy. The homestead right may belong to one of several tenants in common of undivided property, or in a leasehold interest. It may attach to portions of a building--as where rooms or floors in a building are used for homestead purposes and the rest of the building is not so used. Where part of a building is owned or occupied by a family as a home, and the other part is used for a different purpose, that part used as a home may be exempt, while the other portion may be sold under execution. The exemption right may be lost by the execution of a mortgage or contract expressly making the homestead liable, in which both husband and wife join; or it may be forfeited when the homestead is used as a saloon or for any other purpose in violation of the prohibitory liquor law, with the knowledge and consent of the owner, and this is true even though such unlawful use is without the consent of the wife of the owner. In such case it is subject to judgment obtained because of such illegal use. [§2419.] If the homestead is sold, the proceeds are exempt only when invested in the purchase of another homestead, but the exemption does not follow the proceeds out of the state, and where the homestead was sold and the proceeds invested in a homestead in another state, and this was afterwards sold and the proceeds again invested in a homestead in this state, it was held that the homestead exemption did not attach to the second homestead in Iowa. Removal from the homestead without intention of returning will be sufficient to forfeit the homestead right, but the length of time of absence, in itself, will not constitute abandonment, so long as the intention to return exists. [Sidenote: Family defined.] A widow or widower, though without children, shall be deemed a family while continuing to occupy the house used as such at the time of the death of the husband or wife. [§3164.] [Sidenote: Conveyance or incumbrance.] A conveyance or incumbrance by the owner is of no validity unless the husband and wife, if the owner is married, concur in, and sign the joint instrument. [§3165.] Any conveyance or contract, such as a mortgage, lease, assignment of contract of purchase, or any act in any manner affecting the title or right of occupancy of the homestead by either party, will be absolutely void, unless concurred in by the other. If the consent of the wife is fraudulently obtained by the husband, the conveyance or incumbrance will be valid, unless it appears that the purchaser or mortgagee had knowledge of the fraud. A mortgage given for the purchase money will be valid though given alone by the party taking the legal title. [Sidenote: Liable for taxes.] The homestead is liable for taxes accruing thereon, and if platted as hereinafter directed, is liable only for such taxes and subject to mechanics' liens for work, labor, or material, done or furnished exclusively for the improvement of the same, and the whole or a sufficient portion thereof may be sold to pay the same. [§3166.] All the taxes against the owner of the homestead become liens thereon, unless it is platted as directed by statute. [Sidenote: Liable for debts.] The homestead may be sold on execution for debts contracted prior to the purchase thereof, but it shall not in such case be sold except to supply the deficiency remaining after exhausting the other property of the debtor liable to execution. [§3167.] Debts contracted after the acquisition of the property, but before it has acquired the homestead character by actual occupancy, may be enforced against the property. A judgment upon a debt contracted prior to the purchase of the homestead, although such judgment is not rendered until after the property has acquired the homestead character, is a lien upon the homestead. [Sidenote: Debts created by written contract.] The homestead may be sold for debts created by written contract, executed by the persons having the power to convey and expressly stipulating that the homestead is liable therefor, but it shall not in such case be sold except to supply the deficiency remaining after exhausting the other property pledged for the payment of the debt in the same written contract. [§3168.] Any written contract other than a mortgage or other conveyance, will be sufficient to render the homestead liable for debts, provided it contains the necessary stipulations, and is signed by the proper parties. [Sidenote: What constitutes.] The homestead must embrace the house used as a home by the owner thereof, and if he has two or more houses thus used by him at different times and places, he may select which he will retain as his homestead. [§3159.] The husband may select his homestead and make the same his home without the consent of his wife, and the absence of the wife will not affect its homestead character. The fact that the husband is the legal head of the family invests him with the power of establishing his home wherever he may choose, with or without the assent of his wife. Use is essential to give property a homestead character, and an intention to occupy is not sufficient in the absence of actual residence. [Sidenote: Embraces what.] It may contain one or more lots or tracts of land with the buildings thereon and other appurtenances, subject to the limitations contained in the next section, but must in no case embrace different lots or tracts, unless they are contiguous, or unless they are habitually and in good faith used as a part of the same homestead. [§3170.] [Sidenote: Extent.] If within a town plat it must not exceed one-half an acre in extent, and if not within a town plat, it must not embrace in the aggregate more than forty acres. But if, when thus limited, in either case, its value is less than five hundred dollars, it may be enlarged until it reaches that amount. [§3171.] [Sidenote: Dwelling appurtenances.] It must not embrace more than one dwelling house, or any other buildings except as such are properly appurtenant to the homestead; but a shop or other building situated thereon, and really used and occupied by the owner in the prosecution of his own ordinary business, and not exceeding three hundred dollars in value, may be deemed appurtenant to such homestead. [§3172.] [Sidenote: Selecting. Platting.] The owner or the husband or wife, may select the homestead and cause it to be marked out, platted, and recorded as provided in the next section. A failure in this respect does not leave the homestead liable, but the officer having an execution against the property of such defendant, may cause the homestead to be marked off, platted and recorded and may add the expense thence arising to the amount embraced in the execution. [§3173.] [Sidenote: Description. Recording.] The homestead shall be marked off by fixed and visible monuments, and in giving the description thereof, the direction and distance of the starting point from some corner of the dwelling-house shall be stated. The description and plat shall then be recorded by the recorder in a book to be called the "homestead book," which shall be provided with a proper index. [§3174.] [Sidenote: Changes.] The owner may from time to time change the limits of the homestead by changing the metes and bounds, as well as the record of the plat and description, or may change it entirely, but such changes shall not prejudice conveyances or liens made or created previously thereto, and no change of the entire homestead made without the concurrence of the husband or wife, shall affect his or her right or those of the children. [§3175.] [Sidenote: New homestead exempt.] The new homestead, to the extent in value of the old, is exempt from execution in all cases where the old or former homestead would have been exempt, but in no other, nor in any greater degree. [§3176.] [Sidenote: Survivor to occupy.] Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is disposed of according to law. [§3182.] The survivor may elect to retain the homestead in lieu of his or her distributive stare of the estate, but in such case the interest is not one which confers any title to the property which can be conveyed or which will descend to heirs or be subject to the lieu of a judgment, but it is merely a life interest which may be terminated whenever the survivor ceases to use and occupy the homestead as such. Whenever the survivor elects to retain the homestead during life in lieu of dower, it cannot be changed for another homestead, and the right will be lost by abandonment. [Sidenote: Election to retain. Descent. Exemption.] The setting off of the distributive share of the husband or wife in the real estate of the deceased, shall be such a disposal of the homestead as is contemplated in the preceding section. But the survivor may elect to retain the homestead for life in lieu of such share in the real estate of the deceased; but if there be no such survivor, the homestead descends to the issue of either husband or wife according to the rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from any antecedent debts of their parents or their own. [§3183.] [Sidenote: When sold.] If there is no such survivor or issue the homestead is liable to be sold for the payment of any debts to which it might at that time be subjected, if it had never been held as a homestead. [§3184.] [Sidenote: Devise.] Subject to the rights of the surviving husband or wife, as declared by law, the homestead may be devised like other real estate of the testator. [§3185.] The homestead will remain exempt in the hands of the heirs because of the homestead right of the ancestors, although the property is not occupied as a homestead by such heirs. [Sidenote: Exemptions. To head of family.] If a debtor is a resident of this state, and is the head of a family, he may hold exempt from execution the following property: All wearing apparel of himself and family kept for actual use and suitable to their condition, and the trunks or other receptacles necessary to contain the same; one musket or rifle and shot-gun; all private libraries, family bibles, portraits, pictures, musical instruments, and paintings, not kept for the purpose of sale; a seat or pew occupied by the debtor or his family in any house of public worship; an interest in a public or private burying ground, not exceeding one acre for any defendant; two cows and calf; one horse, unless a horse is exempt as hereinafter provided; fifty sheep and the wool therefrom and the materials manufactured from such wool; six stands of bees; five hogs, and all pigs under six months; the necessary food for all animals exempt from execution, for six months; all flax raised by the defendant on not exceeding one acre of ground and the manufactures therefrom; one bedstead and the necessary bedding for every two in the family; all cloth manufactured by the defendant, not exceeding one hundred yards in quantity; household and kitchen furniture, not exceeding two hundred dollars in value; all spinning-wheels and looms, one sewing machine and other instruments of domestic labor kept for actual use; the necessary provisions and fuel for the use of the family for six months; the proper tools, instruments or books of the debtor, if a farmer, mechanic, surveyor, clergyman, lawyer, physician, teacher or professor; the horse or the team consisting of not more than two horses or mules, or two yoke of cattle, and the wagon or other vehicle with the proper harness or tackle, by the use of which the debtor, if a physician, public officer, farmer, teamster, or other laborer habitually earns his living; and to the debtor, if a printer, there shall also be exempt a printing press and a newspaper office connected therewith, not to exceed in all the value of twelve hundred dollars. Any person entitled to any of the exemptions mentioned in this section does not waive his rights thereto by failing to designate or select such exempt property or by failing to object to a levy thereon, unless failing or refusing so to do when required to make such designation or selection by the officers about to levy. [§4297.] The husband and not the wife is recognized by law as the "head of the family," but upon the death of the husband the wife becomes the head of the family and as such is entitled to these exemptions. [Sidenote: Life Insurance.] All life insurance is exempt from the debts of the assured and from those of his widow contracted prior to his death, provided such exemption does not exceed the sum of five thousand dollars. [§1756 Sup.] [Sidenote: Family defined.] The word "family," as used in section 4297, does not include strangers or boarders lodging with the family. [§4298.] [Sidenote: Perpetual earnings.] The earnings of such debtor for his personal services, or those of his family, at any time within ninety days next preceding the levy, are also exempt from execution and attachment. [§4299.] [Sidenote: Unmarried persons. Non-residents.] There shall be exempt to an unmarried man not the head of a family, and to non-residents their ordinary wearing apparel and trunk necessary to contain the same. [§4300.] [Sidenote: Persons starting to leave the state.] When the debtor, if the head of a family, has started to leave this state, he shall have exempt only the ordinary wearing apparel of himself and family, and such other property, in addition, as he may select, in all not exceeding seventy-five dollars in value; which property shall be selected by the debtor and appraised; but any person coming into this state with the intention of remaining shall be considered a resident. [§4801.] [Sidenote: Purchase money.] None of the exemptions prescribed in this chapter shall be allowed against an execution issued for the purchase money of property claimed to be exempt, and on which such execution is levied. [§4302.] [Sidenote: Absconding debtor.] Where a debtor absconds and leaves his family, such property shall be exempt in the hands of the wife and children, or either of them. [§4303.] [Sidenote: Sewing machine.] If the debtor is a seamstress, one sewing-machine shall be exempt from execution and attachment. [§4304.] [Sidenote: Pension money.] All money received by any person, resident of the state, as a pension from the United States government; whether the same shall be in the actual possession of such pensioner, or deposited, loaned, or invested by him, shall be exempt from execution or attachment, or seizure by or under any legal process whatever, whether such pensioner shall be the head of a family or not. [§4305.] [Sidenote: Homestead.] The homestead of every such pensioner, whether the head of a family or not, purchased and paid for with any such pension money, or the proceeds or accumulations of such pension money, shall also be exempt as is now provided by law of this state in relation to homesteads; and such exemption shall also apply to debts of such pensioner contracted prior to the purchase of such homestead. [§4306.] [Sidenote: Damages.] Where a wrongful act produces death, and the deceased leaves a husband, wife, child or parent, the damages shall not be liable for the payment of debts. [§3731.] CHAPTER X. CRIMINAL LAW-ILLEGITIMATE CHILDREN. [Sidenote: Rape.] If any person ravish or carnally know any female of the age of thirteen years or more, by force and against her will, or carnally know and abuse any female child under the age of thirteen years, he shall be punished by imprisonment in the penitentiary for life or any term of years. [§5160.] [Sidenote: Intent to commit rape.] If any person assault a female with intent to commit a rape he shall be punished by imprisonment in the penitentiary not exceeding twenty years. [§5172.] [Sidenote: Compelling to marry.] If any person take any woman unlawfully and against her will, and by force, menace or duress, compel her to marry him, or to be defiled, he shall be fined not exceeding one thousand dollars and imprisoned in the penitentiary not exceeding ten years. [§5161.] [Sidenote: Carnal knowledge.] If any person have carnal knowledge of any female by administering to her any substance, or by any other means producing such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, or have such carnal knowledge of an idiot or female naturally of such imbecility of mind or weakness of body, as to prevent effectual resistance, he shall upon conviction, be punished as provided in the section relating to ravishment. [§5162.] [Sidenote: Producing miscarriage of pregnant woman.] If any person with intent to produce the miscarriage of any pregnant woman, wilfully administer to her any drug or substance whatever, or, with such intent, use any instrument or any means whatever, unless such miscarriage shall be necessary to save her life, he shall be imprisoned in the state prison for a term not exceeding five years, and be fined in a sum not exceeding one thousand dollars. [§5163.] [Sidenote: Enticing female child for prostitution.] If any person take or entice away any unmarried female, under eighteen years of age, from her father, mother, guardian, or other person having the legal charge of her person, for the purpose of prostitution, he shall upon conviction be punished by imprisonment in the penitentiary for not more than three years, or by fine of not more than one thousand dollars and imprisonment in the county jail not more than one year. [§5164.] [Sidenote: Enticing away child.] If any person maliciously, forcibly or fraudulently lead, take, decoy, or entice away any child under the age of fourteen years, with the intent to detain or conceal such child from its parent, guardian, or any other person having the lawful charge of such child, he shall be punished by imprisonment in the penitentiary not more than ten years, or by a fine not exceeding one thousand dollars or by both such fine and imprisonment. [§5165.] [Sidenote: Seduction.] If any person seduce and debauch any unmarried woman of previously chaste character, he shall be punished by imprisonment in the penitentiary not more than five years, or by fine not exceeding one thousand dollars and imprisonment in the county jail not exceeding one year. [§5166.] [Sidenote: Marriage a bar.] If, before judgment upon an indictment, the defendant marry the woman thus seduced, it is a bar to any further prosecution for the offense. [§5167.] An offer, by the defendant, to marry the woman, will not be a bar to a prosecution for seduction, as nothing but actual marriage will constitute such bar. [Sidenote: Adultery.] Every person who commits the crime of adultery shall be punished by imprisonment in the penitentiary not more than three years, or by a fine not exceeding three hundred dollars and imprisonment in the county jail not exceeding one year; and when the crime is committed between parties, only one of whom is married, both are guilty of adultery and shall be punished accordingly. No prosecution for adultery can be commenced but on complaint of the husband or wife. [§5317.] [Sidenote: Evidence in cases of rape or seduction.] The defendant in a prosecution for a rape, or for an assault with intent to commit a rape, or for enticing or taking away an unmarried female of previously chaste character, for the purpose of prostitution, or aiding or assisting therein, or for seducing or debauching any unmarried woman of previously chaste character, cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense. [§5958, as amended by act of the Twenty-fifth General Assembly.] The corroboration required by this section need not be by evidence of witnesses to the act, but may be wholly by circumstances and facts which tend to connect the accused with the commission of the crime. [Sidenote: Bigamy.] If any person who has a former husband or wife living, marry another person, or continue to cohabit with such second husband or wife in this state, he or she, except in cases mentioned in the following section, is guilty of bigamy, and shall be punished by imprisonment in the penitentiary not more than five years, or by fine not exceeding five hundred dollars and imprisonment in the county jail not more than one year. [§5318.] [Sidenote: Exceptions.] The provisions of the preceding section do not extend to any person whose husband or wife has continuously remained beyond seas, or who has voluntarily withdrawn from the other and remained absent for the space of three years together, the party marrying again, not knowing the other to be living within that time; nor to any person who has been legally divorced from the bonds of matrimony. [§5319.] [Sidenote: Knowingly marrying husband or wife.] Every unmarried person who knowingly marries the husband or wife of another, when such husband or wife is guilty of bigamy thereby, shall be imprisoned in the penitentiary not exceeding three years, or by fine of not more than three hundred dollars and imprisonment in the county jail not exceeding one year. [§5320.] [Sidenote: Lewdness.] If any man or woman not being married to each other lewdly and viciously associate and cohabit together, or if any man or woman, married or unmarried, is guilty of gross lewdness and designedly make an open and indecent, or obscene exposure of his or her person, or the person of another, every such person shall be punished by imprisonment in the county jail not exceeding six months, or by fine not exceeding two hundred dollars. [§5321.] [Sidenote: Keeping house of ill-fame.] If any person keep a house of ill-fame, resorted to for the purpose of prostitution or lewdness, such person shall be punished by imprisonment in the penitentiary not less than six months nor more than five years. [§5322.] [Sidenote: Houses of ill-fame.] Houses of ill-fame kept for the purpose of prostitution and lewdness, gambling houses, or houses where drunkenness, quarreling, fighting or breaches of the peace are carried on or permitted, to the disturbance of others, are nuisances, and may be abated and punished as provided in this chapter. [§5472.] [Sidenote: Lease rendered void.] When the lessee of a dwelling house is convicted of keeping the same as a house of ill-fame, the lease or contract for letting such house is, at the option of the lessor, void, and such lessor may thereupon have the like remedy to secure possession as against a tenant holding over after the expiration of his term. [§5323.] [Sidenote: Leasing house for such purpose.] If any person let any house, knowing that the lessee intends to use it as a place of resort for the purpose of prostitution or lewdness, or knowingly permit such lessee to use the same for such purpose, he shall be punished by fine not exceeding three hundred dollars, or imprisoned in the county jail not exceeding six months. [§5324.] [Sidenote: Enticing to house of ill-fame.] If any person entice back into a life of shame any person who has heretofore been guilty of the crime of prostitution, or who shall inveigle or entice any female, before reputed virtuous, to a house of ill-fame, or knowingly conceal or assist or abet in concealing such female, so deluded or enticed for the purpose of prostitution or lewdness, he shall be punished by imprisonment in the penitentiary not less than three nor more than ten years. [§5325.] [Sidenote: Penalty for prostitution.] If any person, for the purpose of prostitution or lewdness resorts to, uses, occupies or inhabits any house of ill-fame, or place kept for such purpose, or if any person be found at any hotel, boarding house, cigar store or other place, leading a life of prostitution and lewdness, such person shall be punished by imprisonment in the penitentiary not more than five years. [§5326.] [Sidenote: Incest.] If any person marry his father's sister, mother's sister, father's widow, wife's mother, daughter, son's widow, sister, son's daughter, daughter's daughter, son's son's widow, daughter's son's widow, brother's daughter, or sister's daughter, or, if any woman marry her father's brother, mother's brother, mother's husband, husband's father, son, husband's son, daughter's husband, brother, son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, brother's son, or sister's son; or if any person, being within the degrees of consanguinity or affinity in which marriages are prohibited by this section, carnally know each other, they shall be deemed guilty of incest, and shall be punished by imprisonment in the state penitentiary for a term not exceeding ten years and not less than one year. [§5351.] [Sidenote: Illegitimate children. Complaint.] When any woman residing in any county in the state is delivered of a bastard child, or is pregnant with a child, which, if born alive, will be a bastard, complaint may be made in writing by any person to the district court of the county where she resides, stating that fact, and charging the proper person with being the father thereof. [§6113.] [Sidenote: Judgment.] If the accused be found guilty, he shall be charged with the maintenance of the child in such sum or sums and in such manner as the court shall direct, and with the costs of the suit. [§6119.] [Sidenote: Marriage of parents.] Illegitimate children become legitimate by the subsequent marriage of their parents. [§3391.] CHAPTER XI. MISCELLANEOUS PROVISIONS. [Sidenote: Action for damages under prohibitory liquor law.] Every wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of the intoxication habitual or otherwise, of any person, shall have a right of action in his or her name, against any person, who shall, by selling intoxicating liquors, cause the intoxication of such person, for all damages actually sustained, as well as exemplary damages; and a married woman shall have the same right to bring suits, prosecute and control the same, and the amount recovered, as if a single woman, and all damages recovered by a minor under this action, shall be paid to such minor, or his parent, guardian, or next friend, as the court shall direct, and all suits for damages under this section shall be by civil action in any court having jurisdiction thereof. [§2418.] Under this section a woman is entitled to recover for the death of her husband, or for personal injuries to him, or to herself caused by intoxication. She may recover damages for mental anguish, shame, or suffering, resulting from injuries to the person, and for injuries to, or loss of property, and means of support. [Sidenote: Parties in action for seduction.] An unmarried female may prosecute as plaintiff, an action for her own seduction and recover such damages as may be found in her favor. [§3760.] In a civil action for damages it is not necessary that an unmarried woman be of previously chaste character to enable her to recover for loss of health, physical suffering, etc., but without that she cannot recover for loss of character. [Sidenote: For injury or death of minor child.] A father, or in case of his death, or imprisonment, or desertion of his family, the mother may prosecute as plaintiff, an action for the expenses and actual loss of service resulting from the injury or death of a minor child. [§3761.] [Sidenote: Married women] A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried, and an attachment or judgment in such action shall be enforced by or against her as if she were a single woman. [§3667.] [Sidenote: Defense.] If husband or wife are sued together, the wife may defend for her own right; and if either neglect to defend, the other may defend for that one also. [§3768.] [Sidenote: When husband or wife deserts family.] When a husband has deserted his family, the wife may prosecute or defend in his name any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had; and under like circumstances the same right shall apply to the husband upon the desertion of the wife. [§3769.] [Sidenote: Evidence. Husband and wife.] Neither the husband nor wife shall in any case, be a witness against the other, except in a criminal prosecution for a crime committed one against the other, or in a civil action or proceeding one against the other; but they may in all civil and criminal cases, be witness for each other. [§4891.] In prosecutions for adultery or bigamy the husband or wife, as the case may be, is a competent witness against the other. [Sidenote: Communications between husband and wife.] Neither husband nor wife can be examined in any case as to any communication made by one to the other while married, nor shall they after the marriage relation ceases, be permitted to reveal in testimony any such communication made while the marriage subsisted. [§4892.] [Sidenote: Women eligible to office.] Women are eligible to all school offices in the state, including those of county superintendent and school director. [§§2828, 2829.] No person shall be disqualified for holding the office of county recorder on account of sex. [§471.] [Sidenote: Police matrons.] Mayors of all cities having a population of twenty-five thousand or more, are authorized, by act of the Twenty-fifth General Assembly to appoint police matrons to take charge of all women and children confined at police stations. They are to search the persons of such women and children, accompany them to court, and "give them such comfort as may be in their power." No woman is eligible to this office who is under thirty years of age. She must be of good moral character, and sound physical health. Her application must be endorsed by at least ten women of good standing and residents of the city in which such appointment is made. When appointed she shall hold office until removed by death, resignation or discharge, but she can be dismissed only after charges have been made against her conduct and such charges have been investigated. She has the right to enter work houses where women are confined, at all times. She shall be subject to the board of police or to the chief of police. Her salary shall not be less than the minimum paid to patrolmen. [Sidenote: Right of suffrage.] In any election hereafter held in any city, incorporated town, or school district, for the purpose of issuing any bonds for municipal or school purposes, or for the purpose of borrowing money, or for the purpose of increasing the tax levy, the right of any citizen to vote shall not be denied or abridged on account of sex, and women may vote at such elections, the same as men, under the same qualifications and restrictions. [Act of the Twenty-fifth General Assembly.] CHAPTER XII. CONCLUSION. [Sidenote: Common law in Iowa.] [Sidenote: Unmarried women. Property rights.] [Sidenote: Married women.] [Sidenote: Law will not protect them.] The rules of the common law have never prevailed in all their harshness in Iowa. At the time when the young state was born, public sentiment already demanded a code more just, and, as before noted, the first law for the protection or extension of the property rights of married women, was passed in 1846. Modifications and changes have followed each other through the entire history of our state legislation, until our present law approaches a condition so nearly one of equal and exact justice between the sexes, that it might serve as a model for other states less progressive than our own. Except in the way of political disabilities our law makes no discrimination against or in favor of women. They have all the rights and privileges enjoyed by men, and are subject to the same duties and responsibilities. Before the law they are equal, but, as a matter of fact, where the law does not interfere, how is it in regard to the property rights of the wife? The unmarried woman has control of her property, if she has any, to the same extent that an unmarried man has control of his. If she accumulates money or property by an expenditure of her time and labor, it belongs to her alone. She can keep it, give it away, will it, spend it, enjoy it, with the same unquestioned right and freedom enjoyed by her brother. But a married woman possesses no such independence, notwithstanding the laws in her favor. The circumstances of her life may be such, that the law will be powerless to protect her in the enjoyment of property which by right belongs to her. The relations and respective duties of husband and wife are such that the husband usually and necessarily controls the business and the family income. The amount of that income over and above the expenditures for family expenses, he invests as he chooses. If it is his will to invest it in real estate, the law says she may have a share of it after his death. If he deposits it in a bank or purchases stocks, bonds, mortgages, or other personal property, the law again says part of it shall be hers, if she survives him, and he has not disposed of it while living, as he has a legal right to do. In either case, she cannot control a single dollar during the life of her husband, if he chooses to deprive her of that privilege. The property accumulated during the marriage may be acquired by the wise judgment, strict economy and self-denial of the wife in connection with the time and labor of the husband. It may even be obtained wholly by her efforts, even though not arising from the profits of any "separate business" recognized by the law. Her contribution to the family income may, and generally does, come into the possession of the husband and he invests it in property to which he naturally and as a matter of course takes the title. During his life he controls it. After his death one-third will belong to the wife, if there are children. If there are no children one-half will go to his heirs no matter how distant the relationship may be. [Sidenote: Law may result in hardship and suffering.] In cases where the joint accumulations of husband and wife are only sufficient to support the wife in comfort after the death of her husband, the law of descent as it now stands, may result in positive hardship and suffering. No matter how small the amount of property belonging to a deceased husband may be, one-half of it will descend to his heirs, if he has no children, and the wife be left with no means of support. Of course the result would be the same in the case of the husband upon the death of the wife, if she held the title to all of the common property. That this law of descent has not operated to the disadvantage of the husband, but invariably to the disadvantage of the wife, is not due to any defect in either the letter or spirit of the existing law, but is the natural and inevitable result of the custom which gives the husband the title to and the control of the joint earnings of himself and wife. [Sidenote: Change or modification needed.] It is difficult to suggest a remedy or to conceive of any law which would adjust and equalize the relations of husband and wife in the ownership and control of common property during the lifetime of both, but if some just and wise legislator can devise some change or modification of the present law, which will not interfere with the husband's proper and necessary position as breadwinner and manager of the business of the family partnership, and which will give to the wife control of a portion of the family income while the husband lives, and when the total amount of property held by either, is only sufficient to afford a comfortable support to the other, will after the death of the owner of the property, secure it all to husband or wife, as the case may be, he will add to the laws of the state the one requisite necessary to secure to women equal property rights with men, and a more just distribution of intestate property. 
13568	----	Proofreading Team. NATIONAL SUFFRAGE LIBRARY WOMAN SUFFRAGE BY FEDERAL CONSTITUTIONAL AMENDMENT COMPILED BY CARRIE CHAPMAN CATT PUBLISHED BY NATIONAL WOMAN SUFFRAGE PUBLISHING CO., INC. 171 MADISON AVENUE NEW YORK 1917 THIS BOOK IS DEDICATED TO THE CONGRESS OF THE UNITED STATES AND THE LEGISLATURES OF THE SEVERAL STATES. IT GOES WITH THE HOPE THAT IT MAY LEAD TO A BETTER UNDERSTANDING OF THE REASONS FOR A FEDERAL CONSTITUTIONAL AMENDMENT PROVIDING THAT NO STATE SHALL DENY THE RIGHT TO VOTE ON ACCOUNT OF SEX. INTRODUCTION No effort is made in the following pages to present an argument for woman suffrage. No careful observer of the modern trend of human affairs, doubts that "governments of the people" are destined to replace the monarchies of the world. No listener will fail to hear the rumble of the rising tide of democracy. No watcher of events will deny that the women of all civilized lands will be enfranchised eventually as part of the people entitled to give consent and no American possessed of political foresight doubts woman suffrage in our land as a coming fact. The discussion herein is strictly confined to the reasons why an amendment to the Federal Constitution is the most appropriate method of dealing with the question. This proposed amendment was introduced into Congress in 1878 at the request of the National Woman Suffrage Association. Since 1882 the Senate Committee has reported it with a favorable majority every year except in 1890 and 1896. Twice only has it gone to vote in the Senate. The first time was on January 25, 1887; the second, March 19, 1914. In the House it has been reported from Committee seven times, twice by a favorable majority, three times by an adverse majority and twice without recommendation. The House has allowed the measure to come to vote but once, in 1915. Yet while women of the nation in large and increasing numbers have stood at doors of Congress waiting and hoping, praying and appealing for the democratic right to have their opinions counted in affairs of their government, millions of men have entered through our gates and automatically have passed into voting citizenship without cost of money, time or service, aye, without knowing what it meant or asking for the privilege. Among the enfranchised there are vast groups of totally illiterate, and others of gross ignorance, groups of men of all nations of Europe, uneducated Indians and Negroes. Among the unenfranchised are the owners of millions of dollars worth of property, college presidents and college graduates, thousands of teachers in universities, colleges and public schools, physicians, lawyers, dentists, journalists, heads of businesses, representatives of every trade and occupation and thousands of the nation's homekeepers. The former group secured its vote without the asking; the latter appeals in vain to Congress for the removal of the stigma this inexplicable contrast puts upon their sex. It is hoped this little book may gain attention where other means have failed. C.C.C. January, 1917. TABLE OF CONTENTS PAGE CHAPTER I. 1 WHY THE FEDERAL AMENDMENT? By CARRIE CHAPMAN CATT There are seven reasons for Federal enfranchisement of women. Other countries have so enfranchised women. Conditions of men's enfranchisement in U.S. were easy. Many State constitutions today practically impossible to amend. Election laws do not protect State amendment elections from fraud. Men's right to vote protected by Federal Constitution; state by state enfranchisement would not give this protection to women. Woman Suffrage a national question. Decision on technical and abstract question of Suffrage demands different class of intelligence from election of candidates. CHAPTER II 12 STATE CONSTITUTIONAL OBSTRUCTIONS By MARY SUMNER BOYD State Suffrage amendments defeated in recent years by technical difficulties. Ratification by Legislature and People theory of State Constitutional Amendment. So adopted in South Dakota and Missouri. In most states technicalities make amending impossible. Classes of technicalities. Limit to number of amendments. "Constitutional majority." Passage of two Legislatures. More than majority of the people required for ratification. Indiana. Time requirements. New Mexico. Revision by Convention. Some states have no or infrequent Constitutional Conventions. New Hampshire. Delaware Constitution alone amended by Legislature or Convention without popular vote. Thirty states gave foundations male suffrage by this easy means. CHAPTER III 21 ELECTION LAWS AND REFERENDA By CARRIE CHAPMAN CATT State Election Laws defective. Many state suffrage amendments undoubtedly lost by frauds in elections. In twenty-four states election law or precedents offer no correction of returns in fraudulent amendment elections. In twenty-three states Contest on election returns probably possible. In eight states recount of votes made. A court procedure and expensive. Punishment for bribery. Relation to Contest. Ohio cases. Vagueness of election laws protects corruption. Ignorant vote used by corrupt. Form of ballot often helps corruption. Only 13 states have headless ballots. Form of Suffrage amendment ballots in recent years aided in defeat of measure. Examples. Non-partisan referendum not protected from fraud like party questions. In most states women cannot be watchers at polls. Aliens can vote in eight states. Illiterate can vote in most states. Résumé. CHAPTER IV 36 THE STORY OF THE 1916 REFERENDA By CARRIE CHAPMAN CATT Three states voted on Woman Suffrage amendments. Some causes of failure. Story of Iowa election. Woman's Christian Temperance Union proves forty-seven varieties of corruption. South Dakota. Foreign vote defeated Woman Suffrage there. Figures of some counties. Relation between Prohibition and Woman Suffrage votes. West Virginia. Illiteracy and conservatism defeated Woman Suffrage there. Liquor influence felt. Corruption in Berkely County, West Virginia. Special Legislative session called but investigation of frauds abandoned. Analysis of vote of certain counties. Résumé. CHAPTER V 55 FEDERAL ACTION AND STATES RIGHTS By HENRY WADE ROGERS Judge of U.S. Circuit Court of Appeals, N.Y.C. Would Federal Amendment violate local self-government or conflict with State Rights? States rights a sound doctrine, but has been perverted, misapplied and carried to extremes. Henry St. George Tucker maintains this way of gaining woman suffrage is contrary to rightful demarcation of powers of federal and state governments. Constitutional Convention 1787 provided that amendments be ratified by three-fourths State Legislatures, State Constitutions may not violate United States Constitution for this is supreme Law. Amendment to U.S. Constitution valid regardless of provisions in State Constitutions. Ratification by State Legislatures does not violate States rights for by it states act as sovereigns. Same argument for removal of sex line in Suffrage as that on which 13th, 14th and 15th amendments were based. 15th amendment gives the sound basis for woman suffrage amendment. CHAPTER VI 69 OBJECTIONS TO THE FEDERAL AMENDMENT By CARRIE CHAPMAN CATT States Rights objection discussed. U.S. Constitution twice amended recently under Democratic administration. Federal Prohibition Amendment introduced by Southern Democrat. Even if all state constitutions gave woman suffrage U.S. Constitution would contain discrimination against women in word "male." Objection that woman suffrage will increase Negro vote. If true, would be objection also to State suffrage amendment. White supremacy will be strengthened by woman suffrage. Discussion of figures of Negro and white population in 15 southern states. Testimony of Chief Justice Walter E. Clark. Objection that women do not want the vote. Men of 21 and naturalized citizens become voters without being asked. Only those who wish to need use the vote. That many women do want the vote is shown by western figures in election of November, 1916. Objection that unfavorable referenda in various states show that constituency has instructed its representatives in Congress against woman suffrage. Unfavorable majority against a suffrage amendment is in reality a minority of constituency. Objection on ground of political expediency. Meaning of this argument as used by different interests. If government "by the people" is expedient, then government by _all_ the people is expedient. If Government by certain classes is better, then basis of franchise should, be morality and education, not sex. Objection that Woman Suffrage will increase corrupt vote. Woman Suffrage will increase intelligent electorate. Statistics. It will increase the moral vote. Only one in twenty criminals is a woman. Election conditions in equal suffrage states. Objection that Prohibition sentiment is stronger than Suffrage sentiment since former has spread faster. Prohibition can be established by statute and by local option and suffrage cannot. CHAPTER I WHY THE FEDERAL AMENDMENT? Woman Suffrage is coming--no intelligent person in the United States or in the world will deny that fact. The most an intelligent opponent expects to accomplish is to postpone its establishment as long as possible. When it will come and how it will come are still open questions. Woman Suffrage by Federal Amendment is supported by seven main reasons. These main reasons are evaded or avoided; they are not answered. 1. KEEPING PACE WITH OTHER COUNTRIES DEMANDS IT. Suffrage for men and suffrage for women in other lands, with few and minor exceptions, has been granted by parliamentary act and not by referenda. By such enactment the women of Australia were granted full suffrage in Federal elections by the Federal Parliament (1902), and each State or Province granted full suffrage in all other elections by act of their Provincial Parliaments.[A] By such enactment the Isle of Man, New Zealand, Finland, Norway, Iceland and Denmark gave equal suffrage in all elections to women.[A] By such process the Parliaments of Manitoba, Saskatchewan and Alberta gave full provincial suffrage to their women in 1916. British Columbia referred the question to the voters in 1916, but the Provincial Parliament had already extended all suffrage rights except the parliamentary vote, and both political parties lent their aid in the referendum which consequently gave a majority in every precinct on the home vote and a majority of the soldier vote was returned from Europe later. By parliamentary act all other Canadian Provinces, the Provinces of South Africa, the countries of Sweden[A] and Great Britain have extended far more voting privileges than any woman citizen of the United States east of the Missouri River (except those of Illinois) has received. To the women of Belise (British Honduras), the cities of Rangoon (Burmah), Bombay (India), the Province of Baroda (India), the Province of Voralberg (Austria), and Laibach (Austria) the same statement applies. In Bohemia, Russia and various Provinces of Austria and Germany, the principle of representation is recognized by the grant to property-holding women of a vote by proxy. The suffragists of France reported just before the war broke out that the French Parliament was pledged to extend universal municipal suffrage to women. Men and women of high repute say the full suffrage is certain to be extended by the British Parliament to the women of England, Scotland, Ireland and Wales soon after the close of the war and already these women have all suffrage rights except the vote for Parliamentary members. These facts are strange since it was the United States which first established general suffrage for men upon the two principles that "taxation without representation is tyranny" and that governments to be just should "derive their consent from the governed." The unanswerable logic of these two principles is responsible for the extension of suffrage to men and women the world over. In the United States, however, women are still taxed without "representation" and still live under a government to which they have given no "consent." IT IS OBVIOUSLY UNFAIR TO SUBJECT WOMEN OF THIS COUNTRY--WHICH BOASTS THAT IT IS THE LEADER IN THE MOVEMENT TOWARD UNIVERSAL SUFFRAGE--TO A LONGER, HARDER, MORE DIFFICULT PROCESS THAN HAS BEEN IMPOSED BY OTHER NATIONS UPON MEN OR WOMEN. American constitutions of the nation and the states have closed the door to the simple processes by which men and women of other countries have been enfranchised. An amendment to our Federal Constitution is the nearest approach to them. To deny the benefits of this method to the women of this country is to put upon them a PENALTY FOR BEING AMERICANS. [Footnote A: See Appendix A for dates and conditions.] 2. EQUAL RIGHTS DEMANDS IT. Men of this country have been enfranchised by various extensions of the voting privilege but IN NO SINGLE INSTANCE were they compelled to appeal to an electorate containing groups of recently naturalized and even unnaturalized foreigners, Indians, Negroes, large numbers of illiterates, ne'er-do-wells, and drunken loafers. The Jews, denied the vote in all our colonies, and the Catholics, denied the vote in most of them, received their franchise through the revolutionary constitutions which removed all religious qualifications for the vote in a manner consistent with the self-respect of all. The property qualifications for the vote which were established in every colony and continued in the early state constitutions were usually removed by a referendum but the question obviously went to an electorate limited to property-holders only. The largest number of voters to which such an amendment was referred was that of New York. Had every man voted who was qualified to do so, the electorate would not have exceeded 200,000 and probably not more than 150,000.[A] [Footnote A: Suffrage in the Colonies. New York Chapter. McKinley.] The next extensions of the vote to men were made to certain tribes of Indians by act of Congress; and to the Negro by amendment to the Federal Constitution. At least three-fourths of the present electors secured their votes through direct naturalization or that of their forefathers. Congress determines conditions of citizenship and state constitutions fix qualifications of voters. In no instance has the foreign immigrant been forced to plead with a vast electorate for his vote. The suffrage has been "thrust upon him" without effort or even request on his part. National and State constitutions not only close to women the comparatively easy processes by which the vote was extended to men and women of other countries but also those processes by which the vote was secured to men of our own land. The simplest method now possible is by amendment of the Federal Constitution. To deny the privilege of that method to women is a discrimination against them so unjust and insufferable that no fair-minded man North or South, East or West, can logically share in the denial. 3. RELIEF FROM UNJUST CONSTITUTIONAL OBSTRUCTIONS DEMANDS IT. The constitutions of many states have provided for amendments by such difficult processes that they either have never been amended or have not been amended when the subject is in the least controversial. Their provisions not infrequently are utilized by opponents of a cause to delay action for years. A present case illustrates. Newspapers in Kentucky which have opposed woman suffrage, and still do so, have started a campaign (December, 1916) to submit a woman suffrage amendment to voters with the announced intention of securing its defeat at the polls in order to remove it from politics for five years as the same question cannot be again submitted for that length of time. There are state constitutions so impossible of amendment that women of those states can only secure enfranchisement through Federal action and fair play demands the submission of a Federal constitutional amendment. (See Chapter II.) 4. PROTECTION FROM INADEQUATE ELECTION LAWS DEMANDS IT. The election laws of all states make inadequate provision for safeguarding the vote on constitutional amendments. Since election laws do not protect suffrage referenda, suffragists justly demand the method prescribed by our national constitution to appeal their case from male voters at large to the higher court of Congress and the Legislatures. (See Chapters III and IV.) 5. EQUAL STATUS OF MEN AND WOMEN VOTERS DEMANDS IT. Until the adoption of the Fourteenth Amendment the National Constitution did not discriminate against women but in Section 2 of that amendment provision was made whereby a penalty may be directed against any state which denies the right to vote to its _male inhabitants_ possessed of the necessary qualifications as prescribed by nation and state. If the entire 48 states should severally enfranchise women their political status would still be inferior to that of men, since no provision for national protection in their right to vote would exist. The women of eleven states are said to vote on equal terms with men. As a matter of fact they do not, since they not only lose their vote whenever they change their residence to any one of the 37 other states (except Illinois, where they lose only a portion of their privileges), but they enjoy no national protection in their right to vote. Women justly demand "Equal Rights for All and Special Privileges for None." Amendment to the National Constitution alone can give them an equal status. Equality of rights can never be secured through state by state enfranchisement. 6. NATIONAL SIGNIFICANCE OF QUESTION DEMANDS IT. Woman suffrage in every other country is a National question. With eleven American states and nearly half the territory of the civilized world already won; with the statement of the press still unchallenged that women voters were "the balance of power" which decided the last presidential election, the movement has reached a position of national significance in the United States. Any policy which seeks to shift responsibility or to procrastinate action, is, to use the mildest phraseology, unworthy of the Congress in whose charge the making of American political history reposes. 7. TREATMENT OF QUESTION DEMANDS INTELLIGENCE. The handicaps of a popular vote upon a question of human liberty which must be described in technical language will be clear to all who think. It is probable that at least a fourth of the voters in West Virginia, one of the recent suffrage campaign states, could not define the following words intelligently: constitution, amendment, franchise, suffrage, majority, plurality. It is probable they would succeed even less well at an attempt to give an account of the Declaration of Independence, the Revolution, Taxation without Representation, the will of the majority, popular government. Such men might make a fairly intelligent choice of men for local offices because their minds are trained to deal with persons and concrete things. They could decide between Mr. Wilson and Mr. Hughes with some discrimination, but would have slight if any knowledge of the platforms upon which either stood. A referendum in many of our states, means to defer woman suffrage until the most ignorant, most narrow-minded, most un-American, are ready for it. The removal of the question to the higher court of the Congress and the Legislatures of the several states means that it will be established when the intelligent, Americanized, progressive people of the country are ready for it. CHAPTER II. STATE CONSTITUTIONAL OBSTRUCTIONS[A] [Footnote A: Table of difficulties in each state is to be found in the Appendix.] MARY SUMNER BOYD At its last session the Arkansas Legislature passed a Woman Suffrage bill by a generous majority; in Kentucky a bill passed both houses and one house in five other states. One of these was Arkansas where a constitutional provision that only three amendments can be submitted to the people at once rendered of no avail the passage of the Legislature. In the five other states the enormous Constitutional majorities required in a legislative vote on amendments defeated the measure. This is the story of a typical year and these are two of the difficulties which beset the gaining of suffrage "state by state." Year after year labor is thrown away and money wasted because actual minorities in legislatures can defeat constitutional amendments; or because once past the legislature, constitutional technicalities can keep them away from the polls; or because, safely past these hazards, a minority vote of the people can defeat a bill that has successfully reached the polls. Theoretically an amendment to a state constitution must have the approval of the Legislature, ratified by the approval of the people. This ratification is what differentiates it from a statutory law. This is the actual requirement, however, in but two of the male suffrage states, South Dakota and Missouri. In all the rest, except Delaware and New Hampshire, which have special methods of amending, much more than simple passage and ratification is required. There are some half-dozen classes of technical requirements which make the amending of many state constitutions wellnigh impossible. Some states have never been able to amend; others have had to submit the same amendment again and again before it passed, even in the case of measures which were not unpopular. The Legislatures of Nebraska and Alabama have occasionally succeeded in passing amendments favored by politicians, by resorting to clever tricks to circumvent the constitutional handicaps. Only by outwitting the framers have they been able to make changes in their constitutions. Among the common technical requirements are the passing by a set proportion much larger than a mere majority of the legislature; the passing of the people's vote by a majority of those voting for candidates and not merely of those voting on the amendment itself; the setting of special time and other limits for the submission of amendments, etc. Many states combine three or more of these requirements. No impediment seems more vexatious than that which prevented the Arkansas bill from coming before the people after the Legislature of 1915 had approved submission. Nor is Arkansas alone in limiting the number of amendments to be submitted to the people at one time; Kentucky goes farther and makes the limit two and Illinois allows but one at a time. The other six states whose bill failed at the last session belong to a group of fifteen which require a special "constitutional majority" of two-thirds or three-fifths favorable in the vote of both houses on an amendment bill.[A] In South Carolina and Mississippi it must pass two legislatures by this large vote, one before and one after the referendum; in Mississippi this means four years' delay for its sessions are quadrennial. In thirteen states the amendment bill must pass two legislatures, in some by a constitutional majority at one passage.[B] Alabama is one of the states whose bill failed through the constitutional majority rule in 1915. In that state another suffrage bill must wait four years for the next legislative session. If this time it surmounts the hazard of a three-fifths favorable vote it will be faced by another hazard; for Alabama is one of nine states in which an amendment must pass the [Footnote A: South Carolina, Georgia, Illinois, Maine, Michigan, West Virginia, Louisiana, Texas and Mississippi--all a two-thirds vote, and Alabama, Florida, North Carolina, Ohio, Maryland and Kentucky a three-fifths vote.] [Footnote B: In Connecticut, Massachusetts, Tennessee, Vermont by a two-thirds majority of one Legislature or of one house or both; in Iowa, Indiana, North Dakota, Pennsylvania, Virginia, Wisconsin, New Jersey, New York and Rhode Island by majorities. All but the last three have biennial Legislatures.] referendum not by a majority on the amendment but by a majority of all voting for candidates at this general election.[A] [Footnote A: These states are Arkansas, Illinois, Minnesota, Mississippi, Nebraska, Oklahoma, Rhode Island and Tennessee. Rhode Island sets a definite majority (three-fifths) of those voting at the election. Probably Texas and North Carolina should be included but the amendment clause in their constitutions is misleading and they may be given the benefit of the doubt; their clause reads: "An amendment shall be submitted to the voters and adopted by a majority of the votes cast."] This requirement by itself is regarded by one authority on state constitutions[B] as making amendment practically impossible for it means that the indifference and inertia of the mass of the voters can be a more serious enemy than active opposition; the man who does not take the trouble to vote is as much to be feared as the man who votes against. [Footnote B: Dodd, W.F. Revision and Amendment of State Constitutions.] A majority vote is required by the constitution of Indiana that is so extravagant as to have caused contradictory decisions in the courts. The constitution reads: "The General Assembly ... (shall) submit such amendment ... to the electors of the state, and if a majority of said electors shall ratify." This was interpreted in one case (156 Ind. 104) to mean a majority of all votes cast at the election, but in a later case (in re Denny) it was taken, exactly as it reads, to mean all the people in the State eligible to vote--and this in the face of the fact that the number of people eligible to vote is unknown even to the Federal Census Department. Indiana also requires that while one amendment is under consideration no other can be introduced. She is, needless to say, one of the states whose constitution has never been amended. Other states besides Indiana have time requirements to insure the immutability of their inspired state document. Thus the Vermont Constitution can be amended only once in ten years--it was last amended in 1913--and five others set a term of years before the same amendment can be submitted again. Among these are New Jersey and Pennsylvania, which having submitted the Woman Suffrage amendment in 1915 cannot do so again till 1920.[A] [Footnote A: The five states are Illinois (four years), Pennsylvania, New Jersey and Kentucky (five years), and Tennessee (six years).] In no state is the Constitution so safeguarded from change as in New Mexico, whose iron-bound rules are in a class by themselves. For the first twenty-five years of statehood a three-fourths vote of both houses of the Legislature ratified by three-fourths of the electors voting, with two-thirds at least from each county, will be required to change the suffrage clause. After twenty-five years the majority will be reduced to two-thirds. This is the state whose Constitution provides that illiteracy shall never be a bar to the suffrage; her democracy falls short only in the matter of women whom she makes it constitutionally impossible ever to add to her electorate. Where constitutions can be revised by the convention method as well as by amendment there is some hope; if amendment fails revision holds out a chance. But twelve states[A] hold no constitutional conventions; in Maryland conventions are twenty years apart and in many other states it is as difficult to call a constitutional convention as to revise the Constitution by amendment. [Footnote A: Louisiana, Texas, Mississippi, North Dakota, Arkansas, Connecticut, Indiana, Massachusetts, New Jersey, Pennsylvania, Rhode Island and Virginia.] New Hampshire amends by constitutional convention alone and these conventions are held infrequently. Only in Delaware is the Constitution amended to-day by act of the Legislature without the people's vote and without any technical requirements except a large Legislative majority. Yet in twenty-four states[A] before the Civil War the foundations of male suffrage were laid by legislature or constitutional convention alone, and in many cases, furthermore, the conditions of suffrage were dictated by the Federal Government. Even as late as the '90's five State Constitutions were adopted, suffrage clause and all, by State Legislatures or constitutional conventions without the referendum.[B] [Footnote A: New Hampshire, South Carolina, Virginia, Pennsylvania, North Carolina, Georgia, New York, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, Vermont, Kentucky, Florida, Tennessee, Ohio, Louisiana, Indiana, Mississippi, Illinois, Alabama, Missouri and Arkansas.] [Footnote B: Many reconstruction constitutions also but these were not permanent. The five constitutions in the 90's were Mississippi, South Carolina, Delaware, Louisiana and Virginia, and Kentucky made changes after the constitution had been submitted.] In the other states universal male suffrage came easily at a time when thinly populated states wanted to hold out inducements to male immigrant labor. To-day any male once naturalized, and in some states before he is naturalized, becomes automatically a voting citizen of any state in the Union after he has fulfilled the state residence requirements and, in some states, an educational requirement. The one word "male" shut women out in the old days from these easy avenues to citizenship and to-day her path by the state by state method is beset by almost insuperable difficulties. CHAPTER III. ELECTION LAWS AND REFERENDA To establish a "government of the people" is to follow an ideal set by the growth of democratic principles, but, after such government has been established by a constitution, it remains to be determined how the will of the people is to be recorded and each state accordingly has enacted an election law to provide for registration and for taking the vote. These laws are so defective as to give unquestioned advantage to dishonesty and corruption in most elections upon referendum questions. In several states there is little doubt that suffrage amendments have been lost through fraud. All the suffragists in Michigan seem to agree that the amendment was counted out in the first campaign of 1912 and that ballot boxes were stuffed in the second, 1913. Willis E. Reed, Attorney General of Nebraska, has declared that he believes the amendment was counted out in that state. An investigation has revealed forty-seven varieties of fraud or violation of the election law in forty-four counties in the Iowa suffrage election of June 5, 1916. Given a group determined to prevent women from getting the vote, a group provided with money and knowing no scruple, and the inadequacy of the law in many States offers a positive guarantee at the outset of a campaign that a suffrage amendment will be lost. If suffrage amendments are defeated by illegal practices, why not demand redress, asks the novice in suffrage campaigns. Ah, there's the rub. In twenty-four states, no provision has been made by the election law for any form of contest or recount on a referendum nor are precedents for a recount found. Political corrupters may, in these states, bribe voters, colonize voters and repeat them to their hearts' content and redress of any kind is practically impossible. If clear evidence of fraud could be produced a case might be brought to the courts and the guilty parties might be punished, but the election would stand. In New York, in 1915, the question was submitted to the voters as to whether a constitutional convention should be called. The convention was ordered by a majority of about 1,500. Later the District Attorney of New York City found proof that at least 800 fraudulent votes had been cast in that city. Leading lawyers discussed the question of effect upon the election and the general opinion among them was that, even though the entire majority, and more, should be found to be fraudulent, the election could not be set aside. The convention was held. In the other twenty-three states,[A] contests on referenda seem possible under the law, but in practically every one, the contest means a resort to the courts and in only eight[B] of these is reference made to a recount. The law is vague and incomplete in nearly all of these States. In some of these, including Michigan, where the suffrage amendment is declared to have been counted out, application for a recount must be made in each voting precinct. To have secured redress in Michigan, provided the fraud was widespread, as it is believed to have been, it would have been necessary to have secured definite evidence of fraud in a probable 1,000 precincts and to have instituted as many cases. This would have consumed many months and would have demanded thousands of dollars. [Footnote A: In Ohio, New Mexico, Wyoming, Utah, New Jersey, Minnesota and Michigan by law; in Illinois, Texas, New Hampshire, Massachusetts, Oregon, Arizona and Iowa by precedent; in West Virginia, South Dakota, Kentucky and Colorado, officials express the opinion that the law governing candidates's contests could be stretched to cover amendments. In Pennsylvania, Arkansas, Louisiana, Mississippi and Washington, the law is so fragmentary as to make the possibilities very uncertain. Information on this last group of laws will be found in Appendix B.] [Footnote B: Ohio, Texas, New Jersey, New Hampshire, Minnesota, Michigan, Massachusetts and Utah.] In some States the courts decide what the redress shall be, but where such provision exists, no assurance is given by the law that such redress will include a correction of the returns. In at least seven States,[A] the applicants must pay all costs if they fail to prove their case a provision amounting to a penalty imposed upon those who try to enforce the law. [Footnote A: Illinois, Michigan, Nebraska, New Jersey, West Virginia, Minnesota, Utah.] The penalties for bribery range from $5 to $2,000 and from thirty days' to ten years' imprisonment, but only one state (Ohio) provides in definite terms for punishment of bribery as a part of the penalty in an election contest. In most cases proof of bribery does not throw out the vote of briber or bribed, nor does an action to throw out purchased votes in contest cases bring with it automatically punishment of the purchased voter. This omission from the contest provisions presupposes that these bribery cases would be separate actions. Thirty-two states in clear terms disfranchise (or give the Legislature power to disfranchise) bribers and bribed, but few make provision for the method of actually enforcing the law, and upon inquiry the Secretary of State of many of these states reported that, so far as he knew, no man had ever been disfranchised for this offense. This was true of states which have been notorious for political corruption. From Ohio alone has evidence been found of the actual enforcement of the disfranchisement provision. In this state nearly 1,800 bribed voters of Adams County were disfranchised in 1910 for scandalous and well-remembered corruption but in 1915 they were restored to citizenship. These cases reveal a disgraceful provision in the Ohio law, by which the briber is given immunity if he will turn State's evidence on the bribed; the vote-buyer may purchase votes by the thousands with perfect safety provided that when suspected he will deliver up a few of the bought by way of example. With a vague, uncertain law to define their punishment in most states, and no law at all in twenty-four states, as a preliminary security, corrupt opponents of a woman suffrage amendment find many additional aids to their nefarious acts. A briber must make sure that the bribed carries out his part of the contract. Whenever it is easy to check up the results of the bribe, corruption may reign supreme with little risk of being found out. A study of some of the recent suffrage votes gives significant food for reflection. It shows how the form, color and arrangement of the ballot may help the corrupt politician to organize ignorant voters to do his will. In Georgia and Louisiana no party names are printed on the official ballot and emblems only are used. In almost half our states, though the party name is used also, the emblem is the real guide. New York does not even relegate this emblem to the top of the column. The emblem is placed before the name of each candidate, so that the illiterate voter can make no mistake in recognizing the sign of the machine which controls his vote. Scarcely more than a dozen states have the headless ballot[A] which makes it impossible for politicians to make corrupt use of the illiterate voter. [Footnote A: Oregon, Nevada, South Carolina, Florida, Colorado, California, Maryland, Minnesota, New Jersey, Massachusetts, Mississippi, Nebraska, Pennsylvania.] In Wisconsin suffrage referendum the suffrage ballot was separate and pink. It was easy to teach the most illiterate how to vote "No" and to check up returns with considerable accuracy. In New York there were three ballots. The official ballot had emblems which easily distinguished it. The other two were exactly alike in shape, size and color and each contained three propositions: those which came from the constitutional convention and the other those which came from the Legislature. The orders went forth to vote down the constitutional provisions and it was done by a majority of 482,000, or nearly 300,000 more than the majority against woman suffrage. On the ballot containing the suffrage amendment, which was No. 1, there was proposition No. 3, which all the political parties wanted carried and to which no one objected. It could easily be found by all illiterates as it contained more lines of printing, yet so difficult was it to teach ignorant men to vote "Yes" on that one proposition that, despite the fact that orders had gone forth to all the state that No. 3 was to be carried, it barely squeezed through. In Pennsylvania there are no emblems to distinguish the tickets and on the large ballot the suffrage amendment was difficult to find by an untutored voter. In probable consequence Pennsylvania polled the largest proportional vote for the amendment of any eastern state. In Massachusetts the ballot was small and the suffrage amendment could be easily picked out by a bribed voter. In Iowa the suffrage ballot was separate and yellow while the main ballots were white. In the North Dakota referendum the regular ballot was long and complicated and the suffrage ballot separate and small. It was easy to teach the dullest illiterate how to vote "No." It might be said that it would be equally easy to teach him to vote "Yes." True, but suffragists never bribe. Both the briber and the illiterate are allies of the opposition. A referendum on a non-partisan issue has none of the protection accorded a party question. Election boards are bi-partisan and each party has its own machinery, not only of election officials but watchers and challengers, to see that the opposing party commits no fraud. The watchfulness of this party machinery, plus an increasingly vigilant public opinion, has corrected many of the election frauds which were once common and most elections are now probably free from all the baser forms of corruption. When a question on referendum is sincerely espoused by both the dominant parties it has the advantage of the watchfulness of both party machines and is doubly safeguarded from fraud. But when such a question has been espoused by no dominant party it is utterly at the mercy of the worst forms of corruption. The election officers have even been known to wink at irregularities plainly committed since it was no affair of theirs. Or, they may even go further and join in the entertaining game of running in as many votes against such an amendment as possible. This has not infrequently been the unhappy experience of suffrage amendments in corrupt quarters. Honest election officers, respecting "the will of the majority" as the sovereign of our nation, would protect honesty in elections, regardless of their own or their party's views, but unhappily that high standard is not universal. Surely, the method of taking the vote and of safeguarding the honesty of elections should be the most important and fundamental of all questions in a republic. Such laws ought to be preliminary to all other laws. Yet as a matter of fact the laxity and ambiguity of many state election laws and the utter inadequacy of provisions for enforcement are almost unbelievable. The contemplation of the actual facts seriously reflects upon the intelligence and good faith of the successive lawmakers of our land. With no one on the election board whose special business it is to see that honesty is upheld, a suffrage amendment must face further hazards through the fact that most states do not permit women, or even special men watchers, to stand guard over the vote and the count upon such questions. When it is remembered that immigrants may be naturalized after a residence of five years; that when naturalized they automatically become voters by all our state constitutions; that in eight states[A] immigrant voters are not even required to be citizens; that the right to vote is limited by an educational qualification in only seventeen states, and that nine of these are Southern, with special intent to disfranchise the Negro while allowing the illiterate White to vote; that evidence exists to prove that there is an unscrupulous body ready to engage the lowest elements of our population by fraudulent processes to oppose a suffrage amendment; that there is no authority on the election board whose business it is to see that an amendment gets a "square deal"; that the method of preparing the ballot is often a distinct advantage to a corrupt opposition; and that when fraud is committed there is practically no redress provided by election laws, it ought to be clear to all that state constitutional amendments when unsponsored by the dominant political parties which control the election machinery, must run the gauntlet of intolerably unjust and unfair conditions. When suffragists have been fortunate enough to overcome the obstacles imposed by the constitution of their states and a referendum to the male voters has been secured, they must immediately enter upon the task of surmounting the infinitely greater obstructions of the election law. They make their appeal to the public upon the supposition that a majority of independent voters is to decide their question. Instead, they may discover that in a determining number of precincts the taking of the actual vote is a game in which the cards are stacked against them. One woman, who had watched at a precinct all day in a suffrage amendment election, said "Something went out of me that day which never came back--and that was pride in my country. At first I thought it was disappointment produced by the defeat of the woman suffrage amendment, but when I had recovered and could think calmly, I knew it was not that. I was still patient and still willing to go on working, struggling, sacrificing, for my right to vote; but I could not forget that I lived in a land which tolerated the things I saw that day." The women who know cannot rise to "The Star-Spangled Banner" without a "lump in their throats," for they recognize the terrible fact that hidden under the beautiful pretense of democracy is a hideous menace to our national liberties, which no political party, no legislature, no congress, has dared to drag out into the daylight of public knowledge. [Footnote A: The number of states which permitted men to vote on "first papers" was formerly fifteen. The following eight states still perpetuate this provision: Arkansas, Delaware, Indiana, Kansas, Missouri, Nebraska, South Dakota, Texas.] Bear these items in mind and remember that Congress enfranchised the Indians, assuming its authority upon the ground that they are wards of the nation; that the Negroes were enfranchised by Federal amendment; that the constitutions of all states not in the list of the original thirteen, automatically extended the vote to men; that in the original colonial territory, the chief struggle occurred over the elimination of the land-owning qualifications and that a total vote necessary to give the franchise to non-landowners did not exceed fifty to seventy-five thousand in any state. Let it also not be forgotten that the vote is the free-will offering of our forty-eight states to any man who chooses to make this land his home. Let it not be overlooked that millions of immigrant voters have been added to our electorate within a generation, men mainly uneducated and all moulded by European traditions, and let no man lose sight of the fact that women of American birth, education and ideals must appeal to these men for their enfranchisement. No humiliation could be more complete, unless we add the amazing fact that political leaders in Congress and legislatures are willing to drive their wives and daughters to beg the consent of these men to their political liberty. The makers of the Federal Constitution foresaw the necessity of referring important and intricate questions to a more intelligent body than the masses of the people and so provided for the amendment of the Constitution by referendum to the legislatures of the several states. Why should women be denied the privilege thus established? The United States is one land and one people. All the states have the same institutions, customs and ideals. Woman suffrage has been caught in a snarl of state constitutional obstructions, inefficient election laws and the misapplied theory of States Rights. It is a combination which has so far retarded the normal progress of the movement in this democratic land that other countries have already outstripped it. Under these circumstances Congress should extricate the woman suffrage question from this tangle by way of honorable reparation for the injustices unintentionally put upon the only unenfranchised citizens left in our Republic, and women should insist upon their enfranchisement by amendment to the Federal Constitution as their self-respecting duty. CHAPTER IV. THE STORY OF THE 1916 REFERENDA Constitutional amendments were submitted to the voters of three states in 1916, namely, Iowa, where the vote was taken June 5th on Primary Day; South Dakota and West Virginia, where the vote was taken at the general election in November. More than one influential newspaper editorially discussed the returns with the comment that "the people" of three states had refused to extend the suffrage to women. An investigation unveils some ugly facts and raises significant questions. In 1882 a prohibition constitutional amendment was adopted by a large majority in Iowa and was promptly set aside by the supreme court upon a technicality. The wet and dry question has been a vexed political issue ever since. The state now has prohibition by statutory enactment. A constitutional amendment is pending, having passed the Legislature of 1914, and is due to pass the Legislature of 1916. The "wets" believing that women would generally support the proposed prohibition amendment were extremely active in opposing the suffrage amendment. Although the suffragists kept their question distinctly separate from prohibition, the wet and dry issue, it was generally admitted, would prove a determining factor. Every judge of the Supreme Court, the United States Senators, the Governor, most of the men prominent in Republican and Democratic politics, most of the clergymen, most of the press and every woman's state organization espoused the suffrage amendment. Men familiar with Iowa politics advised the suffrage campaigners early and late and all the time between that it was unnecessary to conduct an intensive campaign as "everybody believed in it." Yet despite this omnipresent optimism thousands of women gave every possibility of their lives for months before to arouse public sentiment, instruct and acquaint the men and women of the state concerning the question. The amendment was lost by about 10,000 votes. Were four of the ninety-nine counties (Dubuque, Clinton, Scott and Des Moines counties) lying along the Mississippi River, not included in the returns, the state would have been carried for woman suffrage. It is instructive to inquire what kind of population occupied the four counties which defeated it. The following table gives the answer: ======================================================== | | | | | Total | | | | | Total | German, | | | Total | Total | Foreign |Austrian,| |Iowa Counties| | Native | and | Russian | | |Population|Parentage| Foreign | and of | | | | |Parentage| such | | | | | |Parentage| +-------------+----------+---------+---------+---------+ |Dubuque | 57,450 | 24,024 | 33,426 | 14,566 | |Clinton | 45,394 | 19,116 | 26,278 | 11,494 | |Scott | 60,000 | 24,104 | 35,896 | 20,119 | |Des Moines | 36,145 | 17,769 | 18,376 | 7,828 | ======================================================== The vote on woman suffrage was 162,679 yes and 173,020 no. The "yes vote" of the above four counties was 8,061; the "no vote" 18,941. Subtract these totals from the totals of the state vote and 154,618 "yes" and 154,079 "no" remains, giving a majority of 539 for woman suffrage. Once more in the history of suffrage referenda a foreign and colonized population decided the issue. Was the election an honest one? That is a question of interest to Iowa just now. The returns revealed some suspicious facts. Nearly 30,000 more votes were cast on the suffrage proposition than in the primary. Where did they come from? The president of the W.C.T.U., Mrs. Ida B. Wise Smith, employed a detective after the election. His investigation covered forty-four counties and was not confined to those wherein woman suffrage was lost. The findings have not been given to the public in their entirety, but they were conclusive enough to cause an injunction suit to be filed against the Board of Elections and the Legislature to restrain them from accepting the official returns. Registration was necessary for the amendment, not for the primary, yet thousands of unregistered votes apparently were cast upon the amendment. All good election laws provide that a definite number of ballots shall be officially issued to each precinct; that the number of those deposited in the ballot box, the number spoiled and those unused shall not only tally with the number received, but the unused ones must be counted, sealed, labelled and returned with the certificate recording the count. This is the law of Iowa; but the report of the investigation, as given to the press, shows that in thirty-five counties out of the forty-four investigated no tally list was used and there was nothing by which to check in order to determine the correctness of the number on the certificate. In many cases no unused ballots were returned. The poll lists did not tally with the number of votes and even a recount could not reveal whether fraud or carelessness had led to irregularity. Despite the fact that the Iowa law provides that a definite number of ballots and the same number of each kind is to be distributed to each precinct, the separate suffrage ballots in a number of cases were reported by election officials as not having arrived until the voting had been in progress for some time; and in others they gave out an hour before the polls closed. Forty-seven varieties of violations of the election law are alleged to have been committed. Do these indicate wilful fraud or mere ignorance and carelessness? Just now no one seems prepared to answer. Meantime Iowa, one of the most intelligent and progressive states in the nation, stands at the bar of public opinion accused of incapacity to conduct an honest election. How she will defend herself, what reparation she will make to her women, and what steps she will take to insure clean elections and better enforcement of her election law in the future are problems which await the Legislature. That body cannot refuse to take action of some kind without inviting the suspicion that her legislators prefer conditions which lend themselves to the base uses of election manipulators whenever they may care to avail themselves of them. On November 7, 1916, woman suffrage and prohibition amendments were voted upon in South Dakota. It was the first time these two questions have gone to referendum in the same election and the results furnish interesting data for comparison. Certain facts tell a story which should make progressive, patriotic Americans and fair-minded Congressmen reflect. Prohibition was carried by a majority of 11,469; woman suffrage was lost by a majority of 4,664. Prohibition was lost in thirteen counties; in one of these, Lawrence, which lies in the heart of the mining country, prohibition was lost by two votes, and woman suffrage was carried. In all the others a large foreign population was the dominant power. Had nine of the sixty-eight counties of the state not been included in the returns woman suffrage would have been carried. The total "yes" vote on woman suffrage was 51,687; the "no" vote 56,351.[A] The total "yes" vote of these nine counties was 4,877; the "no" vote was 10,569. Subtracting these county totals from the state totals the record would stand 46,810 "yes" votes and 45,782 "no" votes. [Footnote A: The figures here used are those given to the press by the County Boards of Election. The final returns were not available.] Who then are the voters of nine counties who kept the women of an entire state disfranchised? The following table presents the answer: ================================================================== | | | | | Total | | | | | Total | German, | | | Total | Total | Foreign and | Austrian, | | Counties | Population | Native | Foreign | Russian, | | | | Parentage | Parentage | or of such| | | | | | Parentage | |-------------+------------+-----------+-------------+-----------| |Bon Homme....| 11,061 | 3,448 | 7,6l3 | 4,759 | |Brule .......| 6,451 | 3,008 | 3,443 | 1,556 | |Charles Mix..| 14,899 | 6,387 | 8,512 | 2,757 | |Campbell ....| 5,244 | 600 | 4,644 | 3,491 | |Douglas .....| 6,400 | 2,017 | 4,383 | 1,644 | |McCook ......| 9,589 | 4,068 | 5,521 | 1,691 | |Hutchinson ..| 12,319 | 2,671 | 9,648 | 7,515 | |McPherson ...| 6,791 | 1,152 | 5,639 | 4,889 | |Turner ......| 13,840 | 4,206 | 9,634 | 4,432 | |================================================================ The large "no" vote in several counties was due to the same character of population. The total population is 583,888, the population of foreign birth or foreign parentage is 243,835. South Dakota is one of the eight remaining states where foreigners may vote on their "first papers" and citizenship is not a qualification for a vote. The returns offer still other food for reflection. Hutchinson county, for example, carried prohibition and lost woman suffrage. It gave 584 dry votes; 510 wet votes. It gave 432 "yes" votes on woman suffrage and 1,583 "no" votes. Thus 921 more votes were cast on the suffrage proposition than on the prohibition question. The people in this county are German-Russians and exceedingly ignorant. Apparently they were not intelligent enough to be lined up to vote "no" on both questions. Is it not likely that these votes were intended to be "wet" and that they made a mistake and picked No. 6 instead of No. 7? If not, why not? The largest group of the foreign population of these counties are German-Russians. They migrated from Germany and found a home in Russia some 230 or more years ago, in order to escape conscription. When Russia began to enforce conscription about 1888 the entire group came to America and settled in colonies in the Western states which at the time offered free lands. They were totally illiterate then. They had not progressed as Germans in their own country had done but being clannish had remained at the point of development reached at the date of their migration. They are still clannish and have not yet escaped from the mental habits of the Middle Ages. These are the men who have denied American women the vote in South Dakota. That the women of South Dakota in very large numbers wanted the vote no one questions. During the campaign six women in Sioux Falls published an appeal to voters not to support the amendment as they did not wish to vote. Shortly after an appeal to the voters of the same city was published and was signed by 3,000 women. In every county of the state the women manifested their interest by doing all they knew how to do. West Virginia was the first Southern state to submit a referendum on woman suffrage and the vote was taken November 7, 1916. The amendment was defeated by the largest proportional majority any suffrage amendment ever received. Unlike Iowa and South Dakota, where all the educated classes with notable exceptions believe in woman suffrage, West Virginia probably has many conscientious doubters. Arguments and excuses which did service in the West twenty-five years ago were brought forward as though just formulated. The illiteracy of the state is appallingly high and the illiterate is universally an antiwomen suffragist. The ever present prohibition issue again played an important if not a determining part. A prohibition law was voted in by an immense majority in 1912, but the undismayed "wets" propose to secure a resubmission if possible. They apparently regarded the woman suffrage amendment as an outer defense to be taken before the march on the main prohibition fort could be begun; and every "wet," high and low, was on duty. The "drys" who would do well to study Napoleon's rule of strategy, that is, "find out what your enemy doesn't want you to do, and then do it," were much disturbed as to what St. Paul would think were he here, and concluded not to be over hasty about giving the women the vote. At the Democratic convention an anti woman suffragist spoke. The applause in the gallery and in the standing groups filling the outside aisles was uproarious and clearly represented an organized, carefully planted claque. The leaders were an ex-brewer, an ex-saloonkeeper and the chief liquor lobbyist of the state. It was evident that they were there to intimidate the party, and they did. The Democrats threw a bouquet to the women in the form of a plank and then quietly repudiated it. Practically the same thing happened in the Republican convention. They, too, endorsed a plank and "double-crossed." There was apparently no difference between the two dominant parties on that score. Men who had always been pronounced suffragists weakly confessed themselves afraid to speak for woman suffrage in the campaign lest votes be lost for their party. Political campaigners who went into the state, with the exception of Senator Borah and Raymond Robins, were told not to mention suffrage, and they obeyed. The wets apparently had the state literally by the throat and in order to save votes the great fundamental principle of "government by the people" was refused a public hearing. Election Day came. Women poll workers reported from many parts of the state that drunken hoodlums were marched in line into the precinct, saying boldly that they were going to vote "agin the ---- women." The women workers testified with remarkable unanimity that their opposition was chiefly "riffraff and illiterate negroes and that it was under the direction of well-known 'wets.'" Even an excise commissioner under pay of the National Government worked against woman suffrage all day in one precinct. A premonition of what might happen appeared in September, when Judge John M. Woods of the circuit court instructed a grand jury to investigate the political situation in Berkely county. He declared, as reported by the press, that election conditions had become intolerable and that in his judgment one-third of the votes in the county were purchasable. Elections, he said, had degenerated into "an auction wherein offices went to the highest bidder." It was not surprising, therefore, that the cry of fraud arose from many localities as soon as the election was over, and was so insistent that the Governor called a special session of the Legislature for the announced purpose of an investigation into the charges. Colonization, bribery, repeating and every known form of corruption was alleged to have been employed. One of the chief newspapers of the state declared that the election scandals had surpassed all that had gone before. The Legislature met but the Governor did not proceed with his proposed investigation. No explanation was given, but to the onlooker it was clear that one of two reasons, or perhaps both, was the cause of silence on the part of the chief lawmaking body of the state--either the lifted curtain would reveal "the pot calling the kettle black," or so extensive and noxious a mass of corruption was known to exist that no means were available for correction of the wrongs perpetrated. That money was used many women were willing to testify. For what purpose it was used, who furnished it and who were the actual bribers were questions not so readily answered. In one city it was reported "that warrants were out after the elect of the city and that this was true in nearly every ward of the city." The warrants were based upon the alleged use of money. Other women poll workers reported that men boldly asked whether they would be paid, and if so, how much. When they found there was no reward for suffrage votes they scornfully but frankly confessed that they could do better on the other side. Irregularities were numerous. The amendment was ordered by the state officials printed on the main ticket, but one county so far disobeyed instructions as to print the amendment on a separate ballot, yet the vote was accepted. The returns on the amendment were withheld for many days and in several counties for weeks. A few straws from the election show the way the wind blew in West Virginia. In only four counties is the per cent, of illiteracy among males of voting age less than 6 per cent. The returns in these counties are found in the following table: ================================================================= | Per Cent. | | For | Against | | | Illiteracy | County | Suffrage | Suffrage | | | Voting Age | | Amendment| Amendment| | | Males | | | | | |------------+--------+----------+----------+-------------------| | 5.5 | Brooke | 1,041 | 907 | Carried | | 5.8 | Morgan | 443 | 1,098 | 2-1/2 to 1 against| | 4.7 | Ohio | 4,513 | 6,014 | 1-1/3 to 1 against| | 5.3 | Wood | 3,260 | 3,960 | 1-1/4 to 1 against| ================================================================= The returns from the five counties having the highest per cent. of illiteracy are as follows: ================================================================ | Per Cent | | For | Against | | | Illiteracy | County | Suffrage | Suffrage | | | Voting Age | | Amendment| Amendment| | | Males | | | | | |------------+--------+----------+----------+------------------| | 26.2 |Lincoln | 466 | 3,213 |7 to 1 against | | 26.4 |Boone | 678 | 1,828 |3 lacking 6 votes | | | | | | to 1 against | | 27.7 |Logan | 856 | 2,774 |3-1/4 to 1 against| | 28.2 |Mingo | 712 | 2,609 |3-2/3 to 1 against| | 29.7 |McDowell| 1,436 | 4,832 |3-1/3 to 1 against| ================================================================ In the first group the negro vote is under 5 per cent. of the whole. In the second this is also true of Boone and Lincoln counties. The number of negro males of voting age is nearly 6 per cent. in Logan county, 11.2 per cent. in Mingo county and 34.1 per cent. in McDowell county. It is a matter of interest to observe that the counties giving the largest majority against were Clay, 6 to 1; Grant, 7 to 1; Hardy, 7-2/3 to 1; Lincoln, 7 to 1; Raleigh, 5 to 1, and that in none of these is the negro male population of voting age in excess of 5 per cent. White illiteracy is high, the lowest in this group being that found in Grant county, 13.3 per cent. Had there been an honest election and a fair count in West Virginia, it is possible, even probable, that woman suffrage would have been defeated, but the fact remains that no human being can know that, since the amendment went down to defeat in an election that can only be described as "The Shame of West Virginia." In all three states the pending amendments were caught in the toils of the "wet and dry" issue. The "wets" obsessed by the idea that woman suffrage is "next door to prohibition" used their entire machinery to defeat the amendments, while the "drys" regarded the amendments as distinctly separate questions. These conditions may be regarded as the inevitable hazards of a campaign. It is, however, not at all clear that the amendments were defeated in any one of the three states by the honest "will of the majority." In none of them were women permitted to serve as watchers over their amendment. In Iowa well established proof of wilful or careless violations of laws throws doubt over the returns, while in West Virginia the suspicion of fraud rests upon the entire election. In Iowa four and in South Dakota nine counties colonized by people of foreign birth or parentage deprived the women of the state of their vote. A Federal amendment ratified by the legislatures of the several states would secure to the women of South Dakota and Iowa the rights for which American and Americanized men have voted. The entire western or most American part of South Dakota has been twice carried for suffrage, that is, in 1914 and 1916. One county, Harding, adjacent to Wyoming, has been carried for woman suffrage in the six referenda on the question, the first one being held in 1890. The only real argument against the Federal amendment thus far advanced is that one group of states which want woman suffrage may force it upon another group which does not want it. That argument works both ways. _A group of counties_ which want woman suffrage may be deprived of it for years because another group of un-Americanized, foreign-born citizens do not want it. The first is said to be the principle of "American sovereignty," the second may fairly be called the principle of "foreign sovereignty." CHAPTER V. FEDERAL ACTION AND STATE RIGHTS HENRY WADE ROGERS Judge of the United States Circuit Court of Appeals, New York City, and Professor in the Yale University School of Law. I do not propose to discuss the subject of woman suffrage in the abstract. I am content with saying as regards the general question that in a republic which theoretically is founded upon the principle that government derives its just powers from the consent of the governed I think it illogical, unreasonable and an injustice to deny the vote to adult women who are citizens. With that statement I shall address myself to the suggestion of the National American Woman Suffrage Association that Congress should propose to the States an amendment to the Constitution which shall in effect provide that no State shall deny to any person the right to vote on account of sex. And as respects that suggestion I shall deal with a single phase of the matter. It seems to be supposed in some quarters that if such an amendment were to be adopted it would involve a breach of faith with the dissenting States, or violate some unwritten principle of local self-government, or conflict with the historic doctrine of State Rights. I have no hesitancy in saying that I have for years believed and still believe that there is a constitutional doctrine of State Rights which cannot be safely or rightfully ignored. Many of the foremost men in both parties share that belief. It must be admitted, however, that this doctrine sometimes has been so perverted, misapplied and carried to such extreme limits as seriously to prejudice many worthy and intelligent citizens against its true merit and value. This fact makes it all the more necessary on the part of those who would save the doctrine from absolute repudiation to be careful when and how and to what purpose it is invoked. There has recently been published a book entitled "Woman Suffrage by Constitutional Amendment." The author of that book, the Hon. Henry St. George Tucker of Virginia, was at one time a member of Congress, and has been president of the American Bar Association. He was invited to deliver a course of five lectures, in 1916, before the School of Law of Yale University on the subject of "Local Self-Government." In one of the lectures woman suffrage by Federal Amendment was discussed and the theory was advanced that the attempt to bring about the right of suffrage by an amendment to the Constitution of the United States was opposed to the genius of the Constitution and subversive of the principle of local self-government. In his opinion, woman suffrage by Federal Amendment is contrary to the rightful demarcation of the powers of the Federal and State governments under the Constitution of the United States. I may remark in passing that the title of the book is liable to mislead the public into thinking that Mr. Tucker was invited to Yale to discuss woman suffrage, whereas the fact was that that was only an incident in his discussion of Local Self-Government. But is woman suffrage by Federal Amendment contrary to the genius of the Constitution and contrary to the rightful demarcation of the powers of the Federal Government? In considering the question involved it is to be noticed in the first place that a difference exists between the Articles of Confederation and the Constitution. In the Articles of Confederation it was in the Thirteenth Article expressly provided that no alteration should be made in any of the Articles "unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State." This provision was an element of weakness and recognized as such by the men who sat in the Constitutional Convention of 1787. As the Articles constituted a league between independent states it was deemed necessary to make it incapable of alteration except by unanimous consent of the states in order to preserve to each state all of its rights. When the convention of 1787 met to agree upon a Constitution to submit to the States one of the questions they had to consider was whether it should be made capable of amendment. They agreed that it was the part of wisdom to provide that the States might modify the system of government the Constitution established when in the progress of time to do so seemed desirable. Mr. Madison accordingly proposed what with some modifications became the Fifth Article. The Congress was given power by that Article to propose amendments by a vote of two-thirds of both Houses and amendments so proposed were to become valid to all intents and purposes as parts of the Constitution when ratified by three-fourths of the several States. This is not the only method by which the Constitution may be amended. For it is provided that the States may themselves propose amendments through a convention called by two-thirds of the States, and it is also provided that proposed amendments may be submitted for ratification to conventions in the several States instead of to the Legislatures of the States if Congress so directs. When the Constitution of a State is amended care must be taken to see to it that the amendment proposed does not involve a violation of the Constitution of the United States. For a constitution adopted by the people of a State in so far as it violates the Constitution of the United States is void, for exactly the same reason that an Act passed by a State Legislature is void if it is contrary to some provision in the Constitution of the United States. This is so because the Constitution of the United States in the Sixth Article directs that "This Constitution ... shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." But any amendment with a single exception, which is proposed by Congress, no matter what it may be, if it has received the two-thirds vote of both Houses and has been ratified by the Legislatures of three-fourths of the States, or of three-fourths of the conventions in the several States, according as Congress has submitted it in the one way or the other, is valid irrespective of any provision that can be found in any State Constitution or law. The one exception to which reference has been made is that no change can be made which would deprive a State of its right to equal representation in the Senate. As it is, the Senate is composed of two Senators from each state. New York and Nevada, the one with a population of 9,113,614, and the other with a population of 81,875 are entitled to equal representation in that body, and that equality of representation cannot be destroyed by any amendment not assented to by all the States. The reason is that the Constitution expressly declares in the Fifth Article--the one which deals with amendments--"that no State, without its consent, shall be deprived of its equal suffrage in the Senate." This provision was incorporated into the Constitution at the suggestion of Roger Sherman of Connecticut. Certain other restrictions were imposed which now have become unimportant, but which at the time were of the greatest possible importance. It was provided that no amendment was to be made prior to the year 1808 which should prohibit the States from further importation of slaves, and that no capitation or other direct tax should be laid unless in proportion to the census or enumeration of the inhabitants of the states in which three-fifths only of the slaves were included. So we see that the founders withdrew from the possibilities of amendment the subjects regarding which they were unwilling amendments should be made. The understanding of the States therefore must have been that as respects all subjects not so withdrawn the right of amendment might be exercised whenever the States desired to exercise it. Whenever they do see fit to exercise it they are not breaking faith with each other, or doing anything wrongfully. The mode of amending the Constitution is in strict accordance with the doctrine of State Rights. The amending power is not to be exercised by the collective people of the United States acting as a majority. It can only be exercised by three-fourths of the States acting as States in their sovereign capacity. If three-fourths of the States desire to amend the instrument then the one-fourth must submit to the will of the three-fourths. There is no principle in the doctrine of State Rights which is violated when the Constitution is amended by the three-fourths, for all the states have agreed that the three-fourths shall possess the power to do so and that the minority will consent to be bound by action so taken. The principle that the minority must submit to the majority is a principle which the States apply to the government of their local communities and to the people of their several commonwealths. And it is a principle which the States as sovereigns have agreed shall be applied to themselves in their relations to each other and to the Federal Government. In creating the amending power the framers of the Constitution were careful to remove it from the people of the nation and to lodge it in the State sovereignties. That is all that the believers in the doctrine of State Rights asked. They could not wisely ask, and they did not ask, more. They only asked that in so important a matter as the amendment of the fundamental law the minority should not be compelled to submit to a mere majority, but only to three-fourths of the whole. If it be assumed simply for the purpose of this discussion, that the amendment of the Constitution is not wholly a political question, no one can seriously contend that the amendment the National American Woman Suffrage Association urges violates any principle of law, written or unwritten. Mr. Tucker makes no such claim. His argument, as I understand it, is that woman suffrage by Federal Amendment is a departure from the original thought of the makers of the Constitution; that they left the subject of suffrage along with most other subjects to be regulated by State action and that their decision upon that question was wise and should not be disturbed. The same argument exactly was made against the Thirteenth, Fourteenth and Fifteenth Amendments and without effect. It can be made against any amendment which can be proposed which deprives the States of any power which they now possess. When the Constitution was adopted it is true it did not confer the right of suffrage upon any class, but left the subject to each state to regulate in its own way. The members of the House of Representatives were to be chosen by the people of the several States and it was simply provided that "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." Senators were to be chosen by the State Legislatures. The President and Vice-President were to be chosen by electors, who were to be appointed in each state "in such manner as the Legislature thereof may direct." These were at the time very wise regulations, for they showed, as James Wilson, a member of the Constitutional Convention, said, the most friendly disposition toward the governments of the several States, and they tended to destroy the seeds of jealousy which might otherwise spring up with regard to the National Government. At that time the framers of the Constitution did not deem it wise to limit in any respect the control of the States over the subject of suffrage. There was then no uniformity regarding the suffrage in the several states. A property qualification was usually prescribed, but the amount of property it was necessary to hold varied considerably in different states. For instance, in Maryland all freemen, above 21 years of age, having a freehold of fifty acres of land in the county in which they resided, and all freemen having property in the state above the value of thirty pounds current money and who had resided in the county one year, could vote. In New Jersey "all inhabitants" of full age worth "fifty pounds, proclamation money clear estate within that government," could vote. In New York "every male inhabitant of full age" who had resided within the county for six months immediately preceding the day of election could vote if he had been a freeholder possessing a freehold of the value of twenty pounds within the county or had rented a tenement therein of the yearly value of forty shillings, and had been rated and actually paid taxes to the state. In a number of the States the right to vote was restricted to taxpayers. In Pennsylvania every freeman of 21 years who had resided in the state two years next before the election and within that time had paid a State or a county tax could vote. There is today a wide divergence in the qualifications required in the various states to entitle one to vote. In a few States there are educational qualifications, as in California, Connecticut, Massachusetts, Washington and North Carolina. In some States one cannot vote unless he has paid certain taxes, almost always poll taxes. In certain States Indians who are not members of any tribe can vote. And in a number of the States every male of foreign birth, 21 years of age, who has declared his intention to become a citizen according to the naturalization laws of the United States can vote. These differences exist because the Constitution remains, so far as this subject is concerned, as it was originally adopted, except that the Fifteenth Amendment provides that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude." It is, however, an anomalous condition that the right of citizens of the United States to vote remains wholly dependent on the laws of the States, subject only to the restriction that in the regulations the States establish they cannot discriminate against any citizen on account of race, color or previous condition of servitude. If woman suffrage is a sound principle in a republican form of government, and such I believe it to be, there is in my opinion no reason why the States should not be permitted to vote upon an Amendment to the Constitution declaring that no citizen shall be deprived of the right to vote on account of sex. CHAPTER VI OBJECTIONS TO THE FEDERAL AMENDMENT I. STATES RIGHTS. THIS OBJECTION IS URGED BY ALL OPPONENTS OF WOMAN SUFFRAGE, BUT IS EITHER A BARRICADE TO DEFEND THEMSELVES FROM THE NECESSITY OF EXPOSING THE FACT THAT THEY HAVE NO REASONS, OR IS A PLAY TO POSTPONE WOMAN SUFFRAGE AS LONG AS POSSIBLE. BY A FEW IT IS URGED CONSCIENTIOUSLY AND WITH CONVICTION. That there are many problems whose treatment belongs so appropriately to state governments that any infringement of that right by the Federal Government would be an act of tyranny, no American will question. But assuredly woman suffrage is not one of these. One by one classes of men have been granted the vote until women are the only remaining unenfranchised class. States have set up various restrictive qualifications so that criminality, idiocy, insanity, pauperism, drunkenness, foreign birth are accepted as ordinary causes of disfranchisement. Yet not one of these conditions is common to all the states. The foreigner votes on his first papers in eight states and a five years' residence will usually secure his naturalization and a consequent vote in any state. The criminal, idiot and insane are not denied a vote in several states, and in most a large class of ignorant un-American men with no comprehension of our problems, our history, or ideals, are conspicuous voters on election day. Millions of new voters have entered our country and without the expenditure of time, money or service have received the vote since the pending Federal Amendment was first introduced. For two generations groups of women have given their lives and their fortunes to secure the vote for their sex and hundreds of thousands of other women are now giving all the time at their command. No class of men in our own or any other country has made one-tenth the effort nor sacrificed one-tenth as much for the vote. The long delay, the double dealing, the broken faith of political parties, the insult of disfranchisement of the qualified in a land which freely gives the vote to the unqualified, combines to produce as insufferable a tyranny as any modern nation has perpetuated upon a class of its citizens. The souls of women which should be warm with patriotic love of their country are growing bitter over the inexplicable wrong their country is doing them. Hands and heads that should be busy with other problems of our nation are withheld that they may get the tools with which to work. Purses that should be open to many causes are emptied into suffrage coffers until this monumental injustice shall be wiped away. Woman suffrage is a question of righting a nation-wide injustice, of establishing a phase of unquestioned human liberty and of carrying out a proposition to which our nation is pledged; it therefore transcends all considerations of states rights. This objection comes chiefly from Southern Democrats, who claim that it is a form of oppression for three-fourths of the states to foist upon one-fourth measures of which the minority of states do not approve. Yet the provision for so amending the Constitution was adopted by the states and has stood unchallenged in the Constitution for more than a century. If it be unfair, undemocratic or even unsatisfactory, it is curious that no movement to change the provision has ever developed. The Constitution has been twice amended recently and it is interesting to note that it happened under a Democratic Administration. More, the child labor and eight-hour bills, while not constitutional amendments, are subject to the same plea that no state shall have laws imposed upon it without its consent. Both measures were introduced by Southern Democrats. The pending Federal Prohibition Amendment was also introduced by a Southern Democrat and is supported by many others. Upon consideration of these facts, it would seem that "states rights" is either a theory to be invoked whenever necessary to conceal an unreasoning hostility to a measure or that those who advance it are guilty of extremely muddy thinking. The Constitution of the United States as now amended provides that no male citizen subject to state qualifications shall be denied the vote by any state. Were all the state constitutions amended so as to enfranchise women, the word male would still stand in the National Constitution. Men and women would still be unequal, since the National Constitution can impose a penalty upon a state which denies the vote to men, but none upon the state which discriminates against women. A woman comes from Montana to represent that state in Congress. The State of Montana has done its utmost to remove her political disabilities, yet should she cross the border of her state and live in North Dakota, she loses all that Montana gave her. Not so the male voter. Enfranchised in one state, he is enfranchised in all (subject to difference of qualification only). The women of this nation will never be content with less protection in their right to vote than is given to men and there is no other possible way to secure that protection except through amendment to the National Constitution. No single state, nor the forty-eight collectively, can grant that protection except through the Federal Constitution. As granting to half the population of our country the right of consent to their own government, whose expenses they help to pay, is a question of fundamental human liberty, Congress and the legislatures should be proud to act and to add one more immortal chapter to America's history of freedom. II. SOUTHERN MEMBERS OF CONGRESS VERY GENERALLY URGE THAT THEY OPPOSE THE FEDERAL AMENDMENT BECAUSE IT WILL CONFER THE VOTE UPON THE NEGRO WOMEN OF THEIR RESPECTIVE STATES; AND THAT THAT WILL INTERFERE WITH WHITE SUPREMACY IN THE SOUTH. It is difficult to believe this objection to be sincere, since facts do not support the contention. The facts are that woman suffrage secured by Federal Amendment will be subject to whatever restrictions may be imposed by state constitutions (provided those restrictions are in accord with the National Constitution) in precisely the same way as woman suffrage secured by state constitutional amendment. No larger number of negro women can be enfranchised by Federal Amendment than will be enfranchised by State Amendment. If the women of the South are ever to be enfranchised, it must be by (1) Federal Constitutional Amendment, or (2) State Constitutional Amendment. If their franchise is obtained by the former method, it will come by the votes of white men in Congress and legislatures; if by the second, they will be forced to appeal to voting Negroes to elevate them to their own political status. One would suppose the first would be the preferable method from the Southern viewpoint. It is possible that behind this commonly spoken objection, lies a hope and belief that Southern women will remain disfranchised forevermore. A man unfamiliar with political history, psychology, and the science of evolution might cherish such a belief in fancied security, but ideas cannot be shut outside the borders of a state. There is no Southern state in which women of the highest families are not giving their all in order to propagate this cause, and they are doing it with so noble a spirit and so eloquent an appeal that final surrender of the citadel of prejudice is only a question of time. No one has ever questioned the "fighting ability" of the South. That ability is not confined to men. Courage, intelligence, conviction and willingness to sacrifice characterize the suffrage movement in every state, and the South is no exception. The women of that section will vote; the question is how long must they work, how much must they sacrifice to win that which has so freely been granted to men of all classes? White supremacy will be strengthened, not weakened, by woman suffrage. In the fifteen states south of the Mason and Dixon line are: 8,788,901 white women, 4,316,565 negro women, or 4,472,336 more white than negro women. The total negro population is 8,294,274, and white women outnumber both negro males and females by nearly half a million. In two states only, South Carolina and Mississippi, are there more negro than white women, and in these states there are more negro men than white men. In South Carolina, voters must read, own and pay taxes on $300 worth of property. In Mississippi, voters must read the Constitution. The other four states of the "black belt"--Georgia, Florida, Alabama and Louisiana--impose an educational test. Women voters would be compelled to submit to the same qualifications. In the other nine states white women exceed the total negro population. Woman suffrage in the South would so vastly increase the white vote that it would guarantee white supremacy if it otherwise stood in danger of overthrow. If a sly dread of female supremacy is troubling the doubter he may find comfort in the rather astonishing fact that white males over 21 are considerably in excess of white females over 21 in all except Maryland and North Carolina; negro females over 21 exceed negro males in Alabama, Tennessee, Georgia, South Carolina, North Carolina and Virginia, but the restrictions in these states of property ownership represented by tax receipts, education and various other tests, would fall more heavily upon women than men, and thus admit fewer women than men to the vote. If the South really wants White Supremacy, it will urge the enfranchisement of women. The following table offers insuperable proof: ==================================================================== | |Per Cent. of| WHITE | NEGROES | | Negroes in | 21 Years and Over | 21 Years and Over | STATES | Population | | | | All Ages | Male | Female | Male | Female +---------------+------------+---------+---------+---------+-------- |Delaware ......| 15.4 | 52,804 | 50,160 | 9,050 | 8,281 |Maryland ......| 17.9 | 303,561 | 309,897 | 63,963 | 63,899 |Dist. Columbia.| 28.5 | 75,765 | 81,622 | 27,621 | 34,449 |Virginia ......| 32.6 | 363,659 | 353,516 | 159,593 | 164,844 |North Carolina.| 31.6 | 357,611 | 358,583 | 146,752 | 159,236 |South Carolina | 55.2 | 165,769 | 162,623 | 169,155 | 181,264 |Georgia .......| 45.1 | 353,569 | 343,187 | 266,814 | 269,937 |Florida .......| 41.0 | 124,311 | 105,662 | 89,659 | 72,998 |Kentucky ......| 11.4 | 527,661 | 506,299 | 75,694 | 73,413 |Tennessee .....| 21.7 | 433,431 | 419,646 | 119,142 | 122,707 |Alabama .......| 42.5 | 298,943 | 284,116 | 213,923 | 217,676 |Mississippi ...| 56.2 | 192,741 | 180,787 | 233,701 | 231,901 |Arkansas ......| 28.1 | 284,301 | 248,964 | 111,365 | 102,917 |Louisiana .....| 43.1 | 240,001 | 222,473 | 174,211 | 172,711 |Texas .........| 17.7 | 835,962 | 722,063 | 166,393 | 161,959 |Missouri ......| 4.8 | 919,480 | 874,997 | 52,921 | 48,057 |Oklahoma ......| 8.3 | 393,377 | 311,266 | 36,841 | 30,208 |West Virginia .| 5.3 | 315,498 | 270,298 | 22,757 | 14,667 ==================================================================== Speaking of the probable enforcement of the National Constitution against the "Grandfather clause" in Southern constitutions, Walter E. Clark, Chief Justice of the Supreme Court of North Carolina, said: "In North Carolina such a decision would readmit to the polls 125,000 negro votes. What preparation have we made to meet such a possible result? I know of but one remedy. The census shows that the white population of North Carolina is seventy per cent. and the colored population thirty per cent. It follows that the white adult women of North Carolina are more in numbers than the negro men and negro women combined. _The votes of 260,000 white women can be relied on to stand solid against any measure or any man who proposes to question Anglo-Saxon supremacy._ "I am not intimating that the admission of the white women to the polls will secure democratic supremacy (they will not impair it), nor that it will prejudice the republican element. The equal suffrage movement has never proceeded on party lines and the women would scorn to be admitted unless they were as free in their choice of party measures and candidates as the men. But what I am saying is that if the negroes are readmitted by a decision of the Federal Court to suffrage, the 260,000 votes of the white women of the State will be one solid obstacle to any measure that would impair either for them or their children the continuance of white supremacy." III. WOMEN DO NOT WANT TO VOTE AND HENCE IT IS UNFAIR TO THRUST THE VOTE UPON THEM BY FEDERAL AMENDMENT. We have two classes of voters in the United States, young men who automatically become voters at twenty-one, and naturalized citizens. No one among them has ever been asked whether he wishes the vote. It was "thrust upon them" all as a privilege which each would use or not as he desired. To extend the suffrage to those who do not desire it is no hardship, since only those who wish the privilege will use it. On the other hand, it becomes an intolerable oppression to deny it to those who want it. The vote is permissive, not obligatory. It imposes no definite responsibility; it extends a liberty. That there are women who do not want the vote is true, but the well-known large number of qualified men who do not use the vote, indicates that the desire to have someone else assume the responsibility of public service is not confined to women. It is an easy excuse to say "wait until all the women want it," but it is a poor rule which doesn't work both ways. Had it been necessary for members of Congress to wait until all men wanted the vote before they had one for themselves, we should be living in an unconstitutional monarchy. More, had it been necessary for women to wait until all women approved of college or even public school education for girls, property rights, the right of free speech, or any one of the many liberties now enjoyed by women, but formerly denied them, the iniquities of the old common law would still measure the privileges of women, and high schools and colleges would still close their doors to women. A certain way to test whether any class of people want the vote is to note the numbers of those who use it when granted. As men and women voters do not use separate boxes and as initials are often employed by both sexes in registration, election officials invariably reply to queries as to the number of women actually voting in their respective states, that positive figures are not obtainable. Yet the testimony, while lacking definite statement, is overwhelming that women in all lands vote in about the same proportion as men. Women in Illinois, not being possessed of complete suffrage rights, have voted in separate boxes, and figures are therefore obtainable. The report from the City of Chicago for 1916 as submitted by the Chief Clerk of the Board of Election Commissioners is as follows: REGISTRATION Men Women Total 504,674 303,801 808,475 VOTES CAST NOV 7 Men Women Total 487,210--96.5% 289,444--95.2% 776,654--96% VOTES CAST--DEMOCRATIC Men Women Total 217,328 133,847 351,175 VOTES CAST--REPUBLICAN Men Women Total 235,328 141,533 377,201 PROGRESSIVE AND SOCIALIST 48,278 Although New York City is nearly two and a half times as large as Chicago, the registration of the latter exceeded that of New York by 69,307. The following is quoted from an official statement issued by the California Civic League on what the women of California have done with the vote: "There has been some attempt on the part of those opposed to women voting to make it appear that in San Francisco particularly, women were slow to register and loth to vote. The fact is always suppressed that there are never less than 132 men to every 100 women in the city and that women therefore should properly be only forty-three per cent. of the total number of voting adults. At the last mayoralty election the women unquestionably re-elected the incumbent as against Eugene Schmitz of graft-prosecution fame, who tried to 'come back.' In this election women constituted thirty-seven per cent. of the total registered vote and the women of the best residence districts voted in the proportion of forty-two to forty-four per cent. of the total vote cast in those precincts; while in the downtown, tenderloin and dance-hall districts women constituted only twenty-seven per cent. of the registration and negligible portion of the vote. These proportions have been substantially maintained in minor elections since, and were slightly increased in the National election of November, 1916, when they comprised thirty-nine per cent. of the registration and voted within two per cent. as heavily as men." From no state comes the report that women have not used their vote. The evidence that they do use it has been so largely distributed through the press, that more definite proof seems unnecessary, even were it possible to secure it. The following bits of testimony taken from press reports are of interest: In WYOMING, out of 45,000 registered voters, 20,000 are reported as women. But Wyoming has 219 men to every 100 women of voting age. Therefore to compare favorably with Wyoming's 20,000 women voters there should the 53,800 men. * * * * * In MONTANA, one-third of a registration of 255,000 is made up of women. Montana has 189.6 men to every 100 women. As there were only 81,741 women of voting age in Montana in 1910, the present number, 85,000, must mean that nearly every woman in the state voted in 1916. * * * * * About 40% of UTAH'S 130,000 registration is made up of women. Utah has 6 men of voting age to every 5 women, 20% more men than women. * * * * * In IDAHO, out of a registration of 95,000, there are 40,000 women. Idaho has more than half as many again men as women. Therefore to have a fifty-fifty representation at the polls, Idaho should have registered 60,000 men instead of 55,000 to match its 40,000 women. IV. CONSTITUENCY HAS INSTRUCTED AGAINST SUFFRAGE. This objection is urged by members in whose states there have been referenda on the subject in recent years with adverse results. Members of Congress are apportioned among the several states according to population and are constitutionally obligated to represent women as well as men. As the electors of no constituency have voted solidly against woman suffrage, such objectors are accepting instructions from less than half their adult constituents and often from less than one-fourth. Women have had no opportunity to speak for themselves. As a matter of very suggestive fact, thirty-five members of Congress, who upon interview have expressed opposition to the Federal Amendment, were elected by minorities. Some of these represent states which have had a referendum on woman suffrage and were elected by a smaller number of total votes than their respective districts gave the suffrage amendment. These are such curious facts, that it is difficult to believe in the sincerity of the objection. That men and elements which have contributed money and work to secure the election of a member of Congress instruct him how to vote is more believable. For the sake of the common welfare of the American people, it is well, that the number of such members is probably few. V. POLITICAL EXPEDIENCY. The South professes to fear the increased Negro vote; the North, the increased Foreign vote; the rich, the increased labor vote; the conservative, the increased illiterate vote. The Republicans since the recent presidential election fear the increased Democratic vote; the Democrats fear the woman voters' support was only temporary. The "wet" fears the increased dry vote; the "dry" the increased controlled wet vote. Certain very numerous elements fear the increased Catholic vote and still others the increased Jewish vote. The Orthodox Protestant and Catholic fear the increased free-thinking vote and the free-thinkers are decidedly afraid of the increased church vote. Labor fears the increased influence of the capitalistic class, and capitalists, especially of the manufacturing group, are extremely disturbed at the prospect of votes being extended to their women employees. Certain groups fear the increased Socialist vote and certain Socialists fear the "lady vote." Party men fear women voters will have no party consciousness and prove so independent as to disintegrate the party. Radical or progressive elements fear that women will be "stand-pat" partisans. Ballot reformers fear the increased corrupt vote and corruptionists fear the increased reform vote. Militarists are much alarmed lest women increase the peace vote and, despite the fact that the press of the country has poured forth increasing evidence that the women of every belligerent country have borne their full share of the war burden with such unexpected skill and ability that the authorities have been lavish in acknowledgment, seem certain that women of the United States will prove the exception to the world's rule and show the white feather if war threatens. Ridiculous as this list of objections may appear, each is supported earnestly by a considerable group, and collectively they furnish the basis of opposition to woman suffrage in and out of Congress. The answer to one is the answer to all. Government by "the people" is expedient or it is not. If it is expedient, then obviously _all_ the people must be included. If it is not expedient, the simplest logic leads to the conclusion that the classes to be deprived of the franchise should be determined by their qualities of unfitness for the vote. If education, intelligence, grasp of public questions, patriotism, willingness and ability to give public service, respect of law, are selected as fair qualifications for those to be entrusted with the vote and the opposite as the qualities of those to be denied the vote, it follows that men and women will be included in the classes adjudged fit to vote, and also in those adjudged unfit to vote. Meanwhile the system which admits the unworthy to the vote provided they are men, and shuts out the worthy provided they are women, is so unjust and illogical that its perpetuation is a sad reflection upon American thinking. The clear thinker will arrive at the conclusion that women must be included in the electorate if our country wishes to be consistent with the principles it boasts as fundamental. The shortest method to secure this enfranchisement is the quickest method to extricate our country from the absurdity of its present position. VI. THE LOW STANDARDS OF CITIZENSHIP which lead to controlled votes, bribery and various forms of corruptions, will be accentuated by woman suffrage with the doubling of every dangerous element, hence any effort to postpone its coming is justifiable. Woman suffrage will increase the proportion of _intelligent voters_. According to the Commissioners of Education there are now one-third more girls in the high schools of the country than boys. In 1914, the latest figures, 64,491 boys were graduated from the high schools of the United States and 96,115 girls. In the normal schools the educational report for 1915 states that 80 per cent. of the pupils were girls. The Census of 1910 reports a larger number of illiterate men than illiterate women. Woman suffrage would increase the _moral_ vote. Only one out of every twenty criminals are women. Women constitute a minority of drunkards and petty misdemeanants, and in all the factors that tend to handicap the progress of society women form a minority; whereas in churches, schools and all organizations working for the uplift of humanity, women are a majority. In all American states and countries that have adopted equal suffrage the vote of the disreputable woman is practically negligible, the slum wards of cities invariably having the lightest woman vote and the respectable residence wards the heaviest. Woman suffrage would increase the number of _native born voters_ as for every 100 foreign white women immigrants coming to this country there are 129 men, while among Asiatic immigrants the men outnumber the women two to one, according to the Census of 1910. Woman suffrage would help to _correct election procedure_. In all states where women vote, the polling booths have been moved into homes, church parlors, school houses or other similar respectable places. Women serve as election officials and the subduing influence of woman's presence elsewhere has had its effect upon the elections. Women greatly increase the number of competent persons who can be drawn upon as election officials. No class of persons in the nation is so well trained as school teachers for this work. The presence of women as voters and officials would in itself eliminate certain types of irregularity and go a long way toward establishing a higher standard of election procedure. Woman suffrage cannot possibly make political conditions worse, since all the elements which combine to produce those conditions are less conspicuous among women than men. On the other hand the introduction of a new class possessing a very large number of persons who would unwillingly tolerate some of the conditions now prevailing offers evidence that a powerful influence for better things would come with the woman's vote. VII. PROHIBITION HAS OUTSTRIPPED SUFFRAGE, THEREFORE SUFFRAGE SENTIMENT IS LESS STRONG. It should be remembered that prohibition may be obtained by statutory enactment, a privilege denied woman suffrage; that it has been largely established by local option, another privilege denied woman suffrage. These facts account for the larger success as indicated by relative territory covered by prohibition and woman suffrage. APPENDIX A The Following Statement Shows the Extent of Suffrage Enjoyed by Women in Other Lands: THE AUSTRALIAN PROVINCES granted municipal suffrage to women as follows: New South Wales, 1867; Victoria, 1869; West Australia, 1871; South Australia, 1880; Tasmania, 1884; Queensland, 1886. They granted full suffrage to women as follows: South Australia, 1897; West Australia, 1899; New South Wales, 1902; Tasmania, 1903; Queensland, 1905; Victoria, 1908. * * * * * Full suffrage was granted to the women of The Isle of Man, 1892; New Zealand, 1893; Finland, 1906; Norway, 1907; Denmark, 1915; Iceland, 1916. * * * * * CANADIAN PROVINCES extended municipal suffrage to women as follows: Ontario, 1884, to widows and spinsters assessed for not less than $400, married women entitled to vote on some propositions; New Brunswick, 1886, to women and spinsters rate payers; Nova Scotia, 1887, to all women rate payers; Manitoba, 1888, to all woman rate payers; British Columbia, 1888, widows and spinsters rate payers; Alberta, 1888, widows and spinsters rate payers; Saskatchewan, 1888, widows and spinsters rate payers; Prince Edward Island, 1888, widows and spinsters property holders; Quebec, 1892, widows and spinsters property holders. The full suffrage was granted to all women in the Provinces of Manitoba, Saskatchewan, Alberta and British Columbia in 1916. * * * * * SOUTH AFRICA--Municipal suffrage was extended to women as follows: In The Transvaal, in 1854, to burghers' wives; in 1903 to white women on a property qualification; in Cape Colony, 1882, to all women on a property qualification; in Orange River Colony, 1904, to all women resident householders. * * * * * SWEDEN--Municipal suffrage for unmarried women, School Board and Ecclesiastical Franchise (without eligibility to office), 1862; School Board and Poor Law (with eligibility), 1889; eligibility to municipal and church councils, and extension of suffrage rights to married women, 1909. * * * * * In ENGLAND and WALES the first extension of suffrage to women was granted in 1834. Since that time various extensions of suffrage to men and to women have taken place. The first woman suffrage was given to widows and spinsters. The disability of married women was removed in 1900, and English and Welsh women now enjoy suffrage in all elections upon the same terms as men with the sole exception of the right to vote for members of Parliament. * * * * * SCOTLAND--1872--First extension of suffrage to women to elect School Boards (with eligibility). 1881--Municipal suffrage for unmarried women (with eligibility). 1900--Disability of married women in municipal elections removed. 1907--Town and County Council eligibility for married and unmarried established. * * * * * IRELAND--1837--First extension of suffrage to women to elect Poor Law Guardians. 1887--Municipal suffrage granted the women of Belfast. 1894--Municipal suffrage extended to other cities. 1911--Town and County Council eligibility for married and unmarried women established. APPENDIX B (In the table below, the 36 male suffrage states are grouped under classifications which represent, as far as can be represented in a table, the various degrees of difficulty met in the amending clauses of State Constitutions.) A.--Amendment passed by the Legislature or Constitutional Convention: Delaware: Amendments are not put to the referendum vote. They must pass two legislatures by a two-thirds majority each time. The Legislature sits biennially. A Constitutional Convention can also pass amendments without reference to the people. B.--Passed by majority one Legislature and majority vote of people on the referendum or by constitutional convention with referendum: Missouri--Biennial Legislature. Initiative petition also possible. South Dakota--Biennial. Constitutional Convention hard to call. C.--Large Legislative vote necessary: Florida, three-fifths, biennial. Georgia, two-thirds, annual. Maine, two-thirds, biennial. Michigan, two-thirds, biennial. Initiative petition also possible. North Carolina, three-fifths, biennial. Ohio, three-fifths, biennial. Initiative petition also possible. West Virginia, two-thirds, biennial. D.--Same as C., but no, or infrequent Constitutional Conventions: Louisiana, two-thirds, biennial, no Constitutional Convention. Texas, two-thirds, biennial, no Constitutional Convention. Maryland, three-fifths, biennial, 20 years interval between Constitutional Conventions. E.--Difficult States: Alabama--Legislature: three-fifths vote of one Legislature (quadrennial). People: Majority of all votes cast at the election. Iowa--Legislature: Majority of two Legislatures (biennial). People: Majority of all voting for representatives. Minnesota--Legislature: Majority vote of one Legislature (biennial). People: Majority of votes at the election. New York--Legislature: Majority of two Legislatures (annual). People: Majority voting on amendment. Virginia--Legislature: Majority of two Legislatures (biennial). People: Majority of people voting on amendment. Oklahoma--Legislature: Majority vote of one Legislature (biennial). Initiative petition possible. People: Majority voting at election. North Dakota--Legislature: Majority of two Legislatures (biennial). Initiative petition possible. People: Majority voting on the amendment. No Constitutional Convention. South Carolina--Legislature: Two-thirds of two Legislatures (annual).--One before submission to people; the other after ratification by them. People: Majority voting for representatives. Wisconsin--Legislature: Majority of two Legislatures (biennial). People: Majority voting at the election. F.--Very Difficult States: Arkansas--Legislature: Majority vote of one Legislature (biennial). People: Majority of all voting at election. Only three amendments at once. No Constitutional Convention. Connecticut--Legislature: Majority vote of one Legislature; two-thirds vote a second Legislature (biennial). People: Majority votes of the people on the amendment. No Constitutional Convention. Kentucky--Legislature; three-fifths vote of one Legislature (biennial). People: Majority of people voting on the amendment. Not more than two amendments at once. Massachusetts--Legislature: Majority in Senate and two-thirds House in two Legislatures (annual). People: Majority voting on the amendment. No Constitutional Convention. New Jersey--Legislature: Majority of two Legislatures (annual). People: Majority voting on amendment. Same amendment can be submitted only once in five years. No Constitutional Convention. Mississippi--Legislature: Two-thirds vote of one Legislature; majority of a second, after the referendum vote (quadrennial). People: Majority voting at the election. No Constitutional Convention. Pennsylvania--Legislature: Majority of the two Legislatures (biennial). People: Majority of people voting at election. Same amendment can be submitted only once in five years. No Constitutional Convention. Rhode Island--Legislature: Majority of two Legislatures (annual). People: Three-fifths of all voting at election. No Constitutional Convention. Tennessee--Legislature: Majority vote in one Legislature, and a two-thirds vote in a second (biennial). People: Majority of all voting for representatives. Same amendment can be submitted only once in six years. G.--Most Difficult States: Vermont--Legislature: Majority in House and two-thirds in Senate in one Legislature; majority of both houses in a second (biennial). People: Majority voting on the amendment. No Constitutional Convention. Constitution can be amended only once in ten years. New Hampshire--Constitutional Convention alone can propose amendment. This convention is held once in seven years. People: Two-thirds majority vote on amendment. Illinois--Legislature: Two-thirds vote of one Legislature (biennial). People: Majority voting at the election. Only one amendment at a time. Same amendment only once in four years. Indiana--Legislature: Majority vote of two Legislatures (biennial). People: Majority of voters in state. While one amendment awaits action no other can be proposed. No Constitutional Convention. New Mexico--Legislature Three-fourths vote of one Legislature (biennial). People: Three-fourths of those voting at election; two-thirds from each county. 
10065	----	[Illustration: _Photo Henry Dixon & Son_ _From the Portrait painted by Harrington Mann for Gray's Inn_] JAMES M. BECK HONORARY BENCHER OF GRAY'S INN _The Constitution of the United States_ _A brief Study of the Genesis, Formulation and Political Philosophy of the Constitution of the United States_ _By James M. Beck, LL.D_. _Solicitor-General of the United States, Honorary Bencher of Gray's Inn_ _With a Preface by The Earl of Balfour_ "_Where there is no vision, the people perish; but he that keepeth the Law, happy is he."--Proverbs xxix_. 18 "_Remove not the ancient landmark, which thy fathers have set."--Proverbs xxii_. 28 TO THE HON. HARRY M. DAUGHERTY ATTORNEY-GENERAL OF THE UNITED STATES A TRUE AND LOYAL FRIEND, A FAIR AND CHIVALROUS FOE With whom it is the author's great privilege to collaborate as Solicitor-General in defending and vindicating in the Supreme Court of the United States the principles and mandates of its Constitution _Chamonix_, _July_ 14 1922 _Preface by the Earl of Balfour_[1] I have been greatly honoured by your invitation to take the chair on this interesting occasion. It gives me special pleasure to be able to introduce to this distinguished audience my friend, Mr. Beck, Solicitor-General of the United States. It is a great and responsible office; but long before he held it he was known to the English public and to English readers as the author who, perhaps more than any other writer in our language, contributed a statement of the Allied case in the Great War which produced effects far beyond the country in which it was written or the public to which it was first addressed. Mr. Beck approached that great theme in the spirit of a great judge; he marshalled his arguments with the skill of a great advocate, and the combination of these qualities--qualities, highly appreciated everywhere, but nowhere more than in this Hall and among a Gray's Inn audience--has given an epoch-making character to his work. To-day he comes before us in a different character. He is neither judge nor advocate, but historian: and he offers to guide us through one of the most interesting and important enterprises in which our common race has ever been engaged. The framers of the American Constitution were faced with an entirely new problem, so far, at all events, as the English-speaking world was concerned; and though they founded their doctrines upon the English traditions of law and liberty, they had to deal with circumstances which none of their British progenitors had to face, and they showed a masterly spirit in adapting the ideas of which they were the heirs to a new country and new conditions. The result is one of the greatest pieces of constructive statesmanship ever accomplished. We, who belong to the British Empire, are at this moment engaged, under very different circumstances, in welding slowly and gradually the scattered fragments of the British Empire into an organic whole, which must, from the very nature of its geographical situation, have a Constitution as different from that of the British Isles, as the Constitution of the British Isles is different from that of the American States. But all three spring from one root; all three are carried out by men of like political ideals; all three are destined to promote the cause of ordered liberty throughout the world. In the meanwhile we on this side of the Atlantic cannot do better than study, under the most favourable and fortunate conditions, the story of the great constitutional adventure which has given us the United States of America. A.J.B. [Footnote 1: [Address of the Earl of Balfour as Chairman on the occasion of the delivery on June 13, 1922, in Gray's Inn of the first of the lectures herein reprinted.]] _Introduction by Sir John Simon, K.C._[2] I have the privilege and the honour of adding a few words to express our thanks to the Solicitor-General of the United States for this memorable course of lectures. They are memorable alike for their subject and their form; alike for the place in which we are met and for the man who has so generously given of his time and learning for our instruction. Mr. Beck is always a welcome visitor to our shores, and nowhere is he more welcome than in these ancient Inns of Court which are the home and source of law for Americans and Englishmen alike. In contemplating the edifice reared by the Fathers of the American Constitution we take pride in remembering that it was built upon British foundations by men, many of whom were trained in the English Courts; and when Mr. Beck lectures on this subject to us, our interest and our sympathy are redoubled by the thought that whatever differences there may be between the Old World and the New, citizens of the United States and ourselves are the Sons of a Common Mother and jointly inherit the treasure of the Common Law. And we cannot part with Mr. Beck on this occasion without a personal word. Plato records a saying of Socrates that the dog is a true philosopher because philosophy is love of knowledge, and a dog, while growling at strangers, always welcomes the friends that he knows. And the British public often greets its visitors with a touch of this canine philosophy. We regard Mr. Beck, not as a casual visitor, but as a firm friend to whom we owe much; he has been here again and again and we hope will often repeat his visits, and Englishmen will never forget how, at a crisis in our fate, Mr. James Beck profoundly influenced the judgment of the neutral world and vindicated, by his masterly and sympathetic argument, the justice of our cause. [Footnote 2: Address of Sir John Simon on the conclusion, on June 19,1922, of the three lectures herein printed.] _Author's Introduction_ This book is a result of three lectures, which were delivered in the Hall of Gray's Inn, London, on June 13, 15, and 19, 1922, respectively, under the auspices and on the invitation of the University of London. The invitation originated with the University of Manchester, which, through its then Vice-Chancellor, Dr. Ramsay Muir, two years ago graciously invited me to visit Manchester and explain American political institutions to the undergraduates. Subsequently I was greatly honoured when the Universities of Cambridge, Edinburgh and London joined in the invitation. Unfortunately for me--for I greatly valued the privilege of explaining the institutions of my country to the undergraduates of these great Universities--my political duties made it impossible for me to visit England prior to June 1, about which time the Supreme Court of the United States, in which my official duties largely preoccupy my time, adjourns for the summer. Any dates after June 1 were inconvenient to the first three Universities, but it was my good fortune that the University of London was able to carry out the plan, and that it had the cordial co-operation of that venerable Inn of Court, Gray's Inn, one of the "noblest nurseries of legal training." Thus I was privileged to address at once an academic and a professional audience. I came to England for this purpose as a labour of love. I had no anticipation of success, for I feared that the interest in the subject-matter of my lectures would be very slight. My surprise and gratification increased on the occasion of each lecture, as the audiences grew in numbers and distinction. Many leading jurists and statesmen took more than a mere complimentary interest, and some of them, although pressed with social and public duties, honoured me with their attendance at all three lectures. How can I adequately express my appreciation of the great honour thus done me by the Earl of Balfour, the Lord Chancellor, Lord Justice Atkin, the Vice-Chancellor of the University of London, and many other leaders in academic and legal circles--not to forget the Chief Justice of the United States, who paid me the great compliment of attending the last lecture. To one and nil of my auditors, my heartfelt thanks! I also must not fail to acknowledge the generous space given in the British Press to these lectures, and the even more generous allusions to them in the editorial columns. An especial acknowledgment is due to Viscount Burnham and _The Daily Telegraph_ for their generous interest in this book. The good cause of Anglo-American friendship has no better friend than Lord Burnham. This experience has convinced me that now, more than ever before, there is in England a deep interest in American institutions and their history. This is as it should be, for--for better or worse--England and America will play together a great part in the future history of the world. In double harness they are destined to pull the heavy load of the world's problems. Therefore these "yoke-fellows in equity" must know each other better, and, what is more, _pull together_. As I was revising the proofs of these lectures in beautiful Chamonix, the prospectus of the Scottish-American Association reached me, in which its Honorary Secretary and my good friend, Dr. Charles Sarolea, took occasion to make the following suggestion to his British compatriots: "To remove those causes of estrangement, to avoid a fateful catastrophe, in other words, to bring about a cordial understanding _with_ America, the first condition must be an understanding _of_ America. Such an understanding, or even the atmosphere in which such an understanding may grow, has still to be created. It is indeed passing strange that in these days of cheap books and free education, America should be almost a '_terra incognita_,' that we should know next to nothing of American history, of the American Constitution, of American practical politics, of the American mentality. We scarcely read American newspapers or American books. Even such masters of classical prose as Francis Parkman, perhaps the greatest historian who has used the English language as his vehicle, are almost unknown to the average reader. Our students do not visit American universities as they used before the War to visit German universities. The consequence is that again and again we are running the risk of perpetrating the most grotesque errors of judgment, of committing the most serious political blunders, in defiance of American public opinion." The success of my Gray's Inn lectures convinces me that Dr. Sarolea underestimates the interest in America and its history in England. However, the episode, which is treated in these lectures, is, as he says, "_terra incognita_" not only in England, but even in the United States. It is amazing how little is known in America of the facts given in my second lecture. The American student, after rejoicing in the victory at Yorktown and the end of the War of Independence, generally skips about eight years to 1789, mid his interest in the history of his own country recommences with the inauguration of President Washington. Students of history in both countries thus miss one of the most interesting and instructive chapters of American history, and indeed of any history. I have ventured to add to my Gray's Inn lectures another address, which I delivered as the "annual address" at the session of the American Bar Association in Cincinnati, Ohio, on August 31, 1921. I do so, because it has a direct bearing on the decay of the spirit of constitutionalism both in America and elsewhere. It discusses a great _malaise_ of our age, for which, I fear, no written Constitution, however wise, is an adequate remedy. It was published in condensed form in the issue of the _Fortnightly_ for October, 1921, and an acknowledgment is due to its courteous editor for permission to republish it. I have forborne in these lectures to make more than a passing reference to the League of Nations and the great Conference which framed it, tempting as the obvious analogy was. The reader who studies the appendices will see that the Covenant of the League more nearly resembles the Articles of Confederation than the Constitution of 1787. I only mention the subject to suggest that the reader of these lectures will better understand why the American people take the written obligations of the League so seriously and literally. We have been trained for nearly a century and a half to measure the validity and obligations of laws and executive acts in Courts of Justice and to apply the plain import of the Constitution. Our constant inquiry is, "Is it so nominated" in that compact? In Europe, and especially England, constitutionalism is largely a spirit of great objectives and ideals. Therefore, while in these nations the literal obligations of Articles X, XI, XV, and XVI of the Covenant of the League are not taken rigidly, we in America, pursuant to our life-long habit of constitutionalism, interpret these clauses as we do those of our Constitution, and we ask ourselves, Are we ready to promise to do, that which these Articles literally import, join, for example, in a commercial, social and even military war against any nation that is deemed an aggressor, however remote the cause of the war may be to us? Are we prepared to say that in the event of a war or threatened danger of war, the Supreme Council of the League may take any action it deems wise and effectual to maintain peace? This is a very serious committal. Other nations may not take it so literally, but with our life-long adherence to a written Constitution as a solemn contractual obligation, we do. This is said in no spirit of hostility to the League, but only to explain the American point of view. Since I delivered these lectures, I took a short trip to the Continent, and while sojourning in Geneva, made a visit to the offices of the League. All I there saw greatly interested me, and I could have nothing but a feeling of admiration for the effective and useful administrative work which the League is doing. The men who framed the Covenant of the League tried to do, under more difficult, but not dissimilar, conditions, what the framers of the American Constitution did in 1787. In both cases the aim was high, the great purpose meritorious. Those Americans who, for the reasons stated, are not in sympathy with the structural form and political objectives of the League, are not lacking in sympathy for its admirable administrative work in co-ordinating the activities of civilized nations for the common good. In any study of a World Constitution, the example of those who framed the American Constitution can be studied with profit. JAMES M. BECK. _Chamonix_, July 14, 1922. _Contents_ PREFACE BY THE EARL OF BALFOUR INTRODUCTION BY SIR JOHN SIMON AUTHOR'S INTRODUCTION FIRST LECTURE: THE GENESIS OF THE CONSTITUTION SECOND LECTURE: THE FORMULATION OF THE CONSTITUTION THIRD LECTURE: THE POLITICAL PHILOSOPHY OF THE CONSTITUTION THE REVOLT AGAINST AUTHORITY _I. The Genesis of the Constitution of the United States_ I trust I need not offer this audience, gathered in the noble hall of this historic Inn--of "old Purpulei, Britain's ornament"--any apology for challenging its attention in this and two succeeding addresses to the genesis, formulation, and the fundamental political philosophy of the Constitution of the United States. The occasion gives me peculiar satisfaction, not only in the opportunity to thank my fellow Benchers of the Inn for their graciousness in granting the use of this noble Hall for this purpose, but also because the delivery of these addresses now enables me to be, for the moment, in fact as in honorary title a Bencher, or Reader, of this time-honoured society. If I needed any justification for addresses, which I was graciously invited to deliver under the auspices of the University of London, an honour which I also gratefully acknowledge, it would lie in the fact that we are to consider one of the supremely great achievements of the English-speaking race. It is in that aspect that I shall treat my theme; for, as a philosophical or juristic discussion of the American Constitution, my addresses will be neither as "deep as a well, nor as wide as a church door." My auditors will bear in mind that I must limit each address to the duration of an hour, and that I cannot go deeply or exhaustively into a subject that has challenged the admiring comment and profound consideration of the intellectual world for nearly a century and a half. If England and America are to act together in the coming time--and the destinies of the world are, to a very large extent, in their keeping, then they must know each other better, and, to this end, they must take a greater interest in each other's history and political institutions. My principal purpose in these lectures is to deepen the interest of this great nation in one of the very greatest and far-reaching achievements of our common race. Americans have never lacked interest in English history; for however broad the stream of our national life, how could we ignore its chief source? But is there in England an equal interest in the history of America, whose origin and development constitute one of the most dramatic and significant dramas ever played upon the stage of this "wide and universal theatre of man"? It is true that Thackeray, in his _Virginians_, gave us in fiction the finest picture of our colonial life, and the late and deeply lamented Lord Bryce wrote one of the best commentaries upon our institutions in _The American Commonwealth_. In more recent years two of the most moving portraits of our Hamilton and Lincoln are due to your Mr. Oliver and Lord Charnwood. We gratefully recognize this; and yet, how many educated Englishmen have studied that little known chapter of our history, which gave to the progress of mankind a contribution to political science which your Gladstone praised as the greatest "ever struck off at a given time by the brain and purpose of man"? If "peace hath her victories no less renown'd than war," this achievement may well justify your study and awaken your admiration; for, as I have already said and cannot too strongly emphasize, it was the work of the English-speaking race, of men who, shortly before they entered upon this great work of constructive statecraft, were citizens of your Empire. The conditions of colonial development had profoundly stimulated in these English pioneers the sense and genius for constitutionalism. In his speech on Conciliation with America of March 22, 1775, Edmund Burke showed his characteristically philosophic comprehension of this powerful constitutional conscience of the then American subjects of the Empire. After stating that in no other country in the world was law so generally studied, and referring to the fact that as many copies of Blackstone's Commentaries had been sold in America as in England, he added: "This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. In other countries the people, more simple and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle." Moreover, these hardy pioneers were the privileged heirs of the great political traditions of England. While the Constitution of the United States was very much more than an adaptation of the British Constitution, yet its underlying spirit was that of the English speaking race and the Common Law. Behind the framers of the Constitution, as they entered upon their momentous task, were the mighty shades of Simon de Montfort, Coke, Sandys, Bacon, Eliot, Hampden, Lilburne, Milton, Shaftesbury and Locke. Could there be a better illustration of Sir Frederick Pollock's noble tribute to the genius of the common law: "Remember that Our Lady, the Common Law, is not a task-mistress, but a bountiful sovereign, whose service is freedom. The destinies of the English-speaking world are bound up with her fortunes and migrations and its conquests are justified by her works"? Another reason makes the consideration of the subject not only interesting but opportune. "These are the times that try men's souls." It is a time of sifting, when men of all nations in civilization in these critical days are again testing the value even of those political institutions which have the sanction of the past. Society is in a state of flux. Everywhere the foundations of governmental structures seem to be settling--let us hope and pray upon a _surer_ foundation--and when the seismic convulsion of the world war is taken into account, it is not surprising that this is so. While the storm is not yet past and the waves have not wholly subsided, it is natural that everywhere thoughtful men as true mariners are taking their reckonings to know where they are and whether the frail bark of human institutions is still sufficiently seaworthy to keep afloat. Moreover, the patent evidences of weakness in the international organization that we call civilization, the imperative need of ending the spirit of moral anarchy, and the urgent necessity of rebuilding the shattered ruins of the social edifice on surer foundations by the integration of the nations, if possible, into some new form of world organization, gives peculiar interest in these terrible days to the manner in which the American people solved a similar problem more than a century ago. Then, as now, a world war had ended. Then, as now, half the world was prostrated by the wounds of fratricidal strife. As Washington said: "The whole world was in an uproar," and he added that the task "was to steer safely between Scylla and Charybdis." The problem, then as now, was not only to make "the world safe for democracy," but to make democracy, for which there is no alternative, safe for the world. The thirteen colonies in 1787, while small and relatively unimportant, were, however, a little world in themselves, and, relatively to their numbers and resources, this problem, which they confronted and solved, differed in degree but not in kind from that which now confronts civilization. Impoverished in resources, exhausted by the loss of the flower of their youth, demoralized by the reaction from feverish strife, the forces of disintegration had set in in the United States between 1783 and 1787. Law and order had almost perished and the provisional government had been reduced to impotence. A few wise and noble spirits, true Faithfuls and Great Hearts, led a despondent people out of the Slough of Despond till their feet were again on firm ground and their faces turned towards the Delectable Mountains of peace, justice, and liberty. Let it be emphasized that they did this, not by seeking more power, but by imposing restraints upon themselves. That spirit of self-restraint is the essence of the American Constitution. So enduring was their achievement that to-day the Constitution of the United States is the oldest comprehensive written form of government now existing in the world. Few, if any, forms of government have better withstood the mad spirit of innovation, or more effectively proved their merit by the "arduous greatness of things done." For this reason, as the nations of the world are now trying in a cosmic form and under similar conditions to do that which the founders of the American Republic in 1787 did in a microcosmic form, a short narration of that earlier achievement may not be unprofitable in this day and generation, when we are blindly groping towards some common basis for international co-ordination. One of England's greatest Prime Ministers, William Pitt, shortly after the adoption of the Constitution, prophetically said that it would be the admiration of the future ages and the pattern for future constitution building. Time has verified his prediction, for constitution making has been, since the American Constitution was adopted, a continuous industry. The American Constitution has been the classic model for the federated State. Lieber estimated that three hundred and fifty constitutions were made in the first sixty years of the nineteenth century, and, in the constituent States of the American Union, one hundred and three new Constitutions were promulgated in the first century of the United States. "Have you a copy of the French Constitution?" was asked of a bookseller during the second French Empire, and the characteristically witty Gallic reply was: "We do not deal in periodical literature." Constitutions, as governmental panaceas, have come and gone; but it can be said of the American Constitution, paraphrasing the noble tribute of Dr. Johnson to the immortal fame of Shakespeare, that the stream of time, which has washed away the dissoluble fabric of many other paper constitutions has left almost untouched its adamantine strength. Excepting the first ten amendments, which were virtually a part of the original charter, only nine others have been adopted in more than one hundred and thirty years. A constitution, while primarily for the distribution of governmental powers, is, in its last analysis, a formal expression of adherence to that which in modern times has been called the higher law, and which in ancient times was called natural law. The jurisprudence of every nation has, with more or less clearness, recognized the existence of certain primal and fundamental laws which are superior to the laws, statutes, or conventions of living generations. The original use of the term was to import the superiority of the Imperial edict to the laws of the Comitia. All nations have recognized this higher law to a greater or less extent. If we turn to the writings of the most intellectual race in ancient time and possibly in recorded history--the Greeks--we shall see the higher law vindicated with incomparable power in the moral philosophy of its three greatest dramatists, Aeschylus, Sophocles, and Euripides. How was it better expressed than by Antigone when she was asked whether she had transgressed the laws of the state and replied: "Yes, for that law was not from Zeus, nor did Justice, dweller with the gods below, establish it among men; nor deemed I that thy decree--mere mortal that thou art--could override those unwritten and unfailing mandates, which are not of to-day or yesterday, but ever live and no one knows their birthtide." Five centuries later the greatest of the Roman lawyers and orators, Cicero, spoke in the same terms of a higher law, "which was never written and which we are never taught, which we never team by reading, but which was drawn by nature herself." The Roman jurists gave it express recognition. They always recognized the distinction between _jus civile_, or the law of the State, and the _jus naturale_, or the law of Nature. They nobly conceived that human society was a single unit and that it was governed by a law that was both antecedent and paramount to the law of Rome. Thus, the idea of a higher law transcending the power of a living generation, and therefore eternal as justice itself--became lodged in our system of jurisprudence. Nor was the Common Law wanting in a recognition of a higher law that would curb the power of King or Parliament, for its earlier masters, including four Chief Justices (Coke, Hobart, Holt, and Popham), supported the doctrine, as laid down by Coke, that the judiciary had the power to nullify a law if it were "against common right and reason."--(_Bonham's Case_, 8 Coke Reports, 114.) This view as to the limitation of government and the denial of its omnipotence was powerfully accentuated in America by the very conditions of its colonization. The good yeomen of England who journeyed to America went in the spirit of the noble and intrepid Kent, when, turning his back upon King Lear's temporary injustice, he said that he would "shape his old course in a country new." Was it strange that the early colonists, as they braved the hardships and perils of a dangerous voyage, only to be confronted in the wilderness by disease, famine and massacre, should fall back for their own government upon these primal verities of human society, and claim not only their inherited rights as Englishmen, but also the peculiar privileges of pioneers in an unconquered wilderness? This spirit of constitutionalism in America, which culminated in the Constitution of the United States, had its institutional origin in the spacious days of Queen Elizabeth. That wonderful age, which gave to the world not only Shakespeare, Spenser and Jonson, but also Drake, Frobisher and Raleigh, was the Anglo-Saxon reaction to the Renaissance. The spirit of man had a new birth and was breaking away from the too rigid bonds of ancient custom and authority. Among the notable, but little known, leaders of that time was Sir Edwin Sandys, the leading spirit of the London (or Virginia) company. He was a Liberal when to be such was an "extra hazardous risk." He was the son of a Liberal, for his father, a great prelate, had been sent to the Tower for preaching in defence of Lady Jane Grey. The son, Sir Edwin, was the foe of monopolies, and in the same Parliament that impeached the great genius of this Inn, Francis Bacon, Sandys advocated the then novel proposition that accused prisoners should have the right to be represented by counsel, to which the strange objection was made that it would subvert the administration of justice. As early as 1613, he had boldly declared in Parliament that even the King's authority rested upon the clear understanding that there were reciprocal conditions which neither ruler nor subject could violate with impunity. He might not too fancifully be called the "Father of American Constitutionalism," for he caused a constitution--possibly the first time that that word was ever applied to a comprehensive scheme of government--to be drafted for the little colony of Virginia in 1609 and amplified in 1612. Speaking in this venerable Hall, whose very walls eloquently remind us of the mighty genius of Francis Bacon, it is interesting to recall that these two charters of government, which were the beginning of Constitutionalism in America and therefore the germ of the Constitution of the United States, were put in legal form for royal approval by Lord Bacon himself. Thus the immortal Treasurer of this Inn is directly linked with the development of Constitutional freedom in America. Bacon became a member of the council for the Virginia Company in 1609. His deep interest in it is attested in the dedication to him by William Strachey in 1618 of the latter's _Historie of Travaile into Virginia Brittania_. In his speech in the House of Commons on January 30, 1621, Bacon saw a vision of the future and predicted the growth of America, when he said: "This kingdom now first in His Majesty's Times hath gotten a lot or portion in the New World by the plantation of Virginia and the Summer Islands. And certainly it is with the kingdoms on earth as it is in the kingdom of heaven, sometimes a grain of mustard seed proves a great tree." Truly the mustard seed of Virginia did become a great tree in the American Commonwealth. One of Bacon's nephews, also of the Inns of Court, Nathaniel Bacon, became the first Liberal leader in the Colonies, and led the first revolt against colonial misrule. He was probably of Gray's Inn, for it is difficult to imagine a Bacon studying in any Inn than the one to which the great Bacon had given so much loving care. Due to these charters, on July 30, 1619, the little remnant of colonists whom disease and famine had left untouched were summoned to meet in the church at Jamestown to form the first parliamentary assembly in America, the first-born of the fruitful Mother of Parliaments. It was due to Sandys not only that the first permanent English settlement in the Western World was planted at Jamestown in 1607, but that a later group of "adventurers"--for such they called themselves--destined to be more famous, were driven by chance of wind and wave to land on the coast of Massachusetts. Thus was established, not only the beginning of England's colonial Empire--still one of the most beneficent forces in the world--but also the principle of local self-government, which, in the Western World, was destined to develop the American Commonwealth. The compact, signed in the cabin of the _Mayflower_, while not in strictness a constitution, like the Virginia Charter, was yet destined to be a landmark of history. Sandys suffered for his convictions, for the party of reaction convinced King James that Virginia was a nest of sedition, and the arbitrary ruler, in the reorganization of the London company, gave a pointed admonition by saying: "Choose the devil, if you will, but not Sir Edwin Sandys." In 1621 he was committed to the Tower and only released after the House of Commons had made a vigorous protest against his incarceration. His successor as treasurer of the London company was Shakespeare's patron, the Earl of Southampton, and it is not a fanciful conjecture to assume that, when the news of the disaster which befell one of the fleets of the London Company on the Island of Bermuda reached England, it inspired Shakespeare to write his incomparable sea idyl, _The Tempest_. If so, this lovely drama was Shakespeare's unconscious apostrophe to America, for in Ariel--seeking to be free--can be symbolized her awakening spirit, while Prospero, with his thaumaturgic achievements, suggests a constructive genius, which in a little more than a century has made one of the least of the nations to-day one of the greatest. Bacon, Sandys, Southampton and the Liberal leaders of the House of Commons had implanted in the ideas of the colonists the spirit of constitutionalism, which was destined to influence profoundly the whole development of the American colonies, and finally to culminate in the Constitution of the United States. The later struggle in the Long Parliament, the fall of Charles I, and more especially the deposition of James II, the accession of William of Orange, and the substitution for the Stuart claim of divine right that of the supremacy of the people in Parliament, naturally had their reaction in the Western World in intensifying the spirit of constitutionalism in the growing American Commonwealth. The colonial history was therefore increasingly marked by a spirit of individualism, a natural partiality for local rule, and a tenacious adherence to their special privileges, whether granted to Crown colonies, like New Hampshire, New York, New Jersey, Virginia, the two Carolinas, and Georgia, or proprietary governments, like Maryland, Delaware, and Pennsylvania, or charter governments, such as Massachusetts, Rhode Island, and Connecticut. In the three colonies last named formal corporate charters were granted by the Crown, which in themselves were constitutions in embryo, and the colonists thus acquired written rights as to the government of their internal affairs, upon the maintenance of which they jealously insisted. Thus arose the spirit in America, which treated constitutional rights, not so much as special privileges granted by plenary Sovereignty, but as contractual obligations which could be enforced in the Courts against the Sovereign. All this developed in the colonists a powerful sense of constitutional morality, and its pertinency to my present theme lies in the fact that when each of the thirteen colonies became, at the conclusion of the War of Independence, a separate and independent nation, they were more concerned, in establishing a central government, to limit its authority and to maintain local self-government than they were to give to the new-born nation the powers which it needed. They carried their constitutionalism to extremes, which nearly made a strong and efficient central government an impossibility. Nothing was less desired by them than a unified government. It was destined to be wrung from their hard necessities. The Constitution was the reflex action of two opposing tendencies, the one the imperative need of an efficient central government, and the other the passionate attachment to local self-rule. Co-operation between the colonies had been a matter of long discussion and earnest debate, and primarily resulted from the necessity of defence against a common foe the French in Canada, and the Indians of the forest. In 1643 four of the New England colonies united in a league to defend themselves. In 1693 William Penn made the first suggestion for a union of all the colonies. In 1734 a council was held at Albany at the instance of the Crown to provide the means for the defence against France in Canada, and it was then that Franklin submitted the first concrete form for a union of the colonies into a permanent alliance. It was in advance of the times, for, conservative as it was, it was unfortunately opposed both by the Crown and the colonies themselves. The time was not ripe for any such union, and the reason was apparent. The colonies differed very much in the character of their populations, in the nature of their economic interests, and in their political antecedents. They were not wholly of the English race. Many nations in Europe had already contributed to the population. For example, New York was partly Dutch, and in Pennsylvania there was a considerable element of the Swedes, Germans, and Swiss. Moreover, the colonists were as widely separated from each other, measured by the facilities of locomotion, as are the most remote nations of the world to-day. Only a few men ever found occasion to leave their colony to journey to another, and most men never left, from birth to death, the community in which they lived. Outside of the few scattered communities in the different colonies there was an almost unbroken wilderness, with few wagon roads and in places only a bridle path. The only methods of communication were the letters and still fewer newspapers, which were carried by post riders often through an almost trackless wilderness. Obviously, a working government could not easily be constituted between peoples of different religions, races, and economic interests, who, for the most part, never met each other face to face and with whom frequent communication was impossible. The differences between the colonies and the mother-country with respect to internal taxation slowly developed into an issue of constitutionalism rather than of legislative policy. As in England, the immediate question affected the power of the Crown to give to the customs inspectors the power to make general searches and seizures, to enforce the navigation laws. In 1761 James Otis, of Massachusetts, made a fateful speech before the colonial legislature, in which, asserting the illegality of the search warrants on the ground that they violated the constitutional rights of Englishmen to protection in their own homes, he asserted that Acts of Parliament which violated the sanctity of the home were void and that, more specifically, they violated the charter granted to Massachusetts. Asserting the doctrine which at that time was the doctrine of the English common law, as stated by Coke and three other Chief Justices, he said: "To say the parliament is absolute and arbitrary is a contradiction. The Parliament cannot make two and two five. Omnipotency cannot do it.... Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: there must be in every instance a higher authority, viz., GOD. Should an Act of Parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void; and so it would be adjudged by the Parliament itself, when convinced of their mistake." It is a curious fact that in the reaction from the tyranny of the Stuarts your country abandoned this principle of the common law by substituting for the omnipotence of the Crown the omnipotence of Parliament, while in my country the somewhat vague and unworkable principle of the common law, which gave the judiciary the power to invalidate an act of the legislature, when against natural reason and justice, was developed into the great principle, without which institutions in an heterogeneous and widely scattered democracy would be unworkable, namely that the powers of government are strictly defined, and that neither the executive, the legislative, nor the judicial departments of the government can go beyond the precise limits established by the fundamental law. Like the common law, the Constitution was thus the result of a slow evolution. Mr. Gladstone, in his oft-quoted remark, gave an erroneous impression when he said: "As the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off, at a given time by the brain and purpose of man." This assumes that the Constitution sprang, like Minerva, armed _cap-à-pie,_ from the brain of the American people, whereas it was as much the result of a slow, laborious, and painful evolution as was the British Constitution. Probably Gladstone so understood the development of the American Constitution and recognized that its framing was only the culmination of an evolution of many years. When the constitutional struggle between the colonies and the Parliament became acute, the necessity of a union for a common defence became imperative. As early as July, 1773, Franklin recommended the "convening of a General Congress" so that the colonies would act together. His suggestion was introduced in the Virginia House of Burgesses in May, 1774, and as a result there met in Philadelphia on September 5 of that year the first Continental Congress, styled by themselves: "The Delegates appointed by the Good People of these Colonies." Nothing was further from their purpose than to form a central government or to separate from England. This Congress only met as a conference of representatives of the colonies to defend what they conceived to be their constitutional rights. Before the second Continental Congress met in the following year, the accidental clash at Lexington and Concord had taken place, and as the Congress again re-convened a momentous change had taken place, which was, in fact, the beginning of the American Commonwealth. The Congress became by force of circumstances a provisional government, and as such it might well have claimed plenary powers to meet an immediate exigency. So indisposed were they to separate from England or to substitute for its rule that of a new government, that the Continental Congress, when it then involuntarily took over the government of America, failed to exercise any adequate power. It remained simply a conference without real power. Each colony had one vote and the rule of unanimity prevailed. Even its decisions were largely advisory, for they amounted to little more than recommendations to the constituent States as to what measures should be taken. Each colony complied with the recommendation in its discretion and in its own way. Notwithstanding this fatal lack of authority, the Continental Congress, then actually engaged in civil war, created an army, and, through its committees, entered into negotiations with foreign nations. To support the former, it issued paper money, with the disastrous result that could be readily anticipated. While it had a presiding officer, it had no executive, and the new nation, which was hardly conscious of its own birth, had no judiciary. Had this _de facto_ government assumed the plenary powers which provisional governments must, under similar circumstances, necessarily assume, it would have been better for the cause of the colonists. For want of an efficient central government, the civil administration of the infant nation was marked by a weakness and incapacity that defeated Washington's plans and nearly broke his spirit. Washington's little army was the victim of the gross incapacity of an impotent government. The soldiers came and went, not as the general commanded, but as the various colonies permitted. The tragedy of Valley Forge, when the little army nearly starved to death, and literally the soldiers could be tracked over the snows by their bleeding, unshod feet, was not due to lack of clothing and provisions, but to the gross incapacity of a headless government that if it had had the wisdom to act lacked the authority. The situation was one of chaos. The colonies recruited their own contingents, paid such taxes as they pleased, which grew increasingly less, and the Congress had no coercive power to enforce its policies, either with reference to internal or external affairs. This situation was so clearly recognized that immediately after the Declaration of Independence on July 4, 1776, the draft of a constitution was proposed to give the central government more effective power; but, although the necessity was manifest and most urgent, the so-called Articles of Confederation, which were then drafted in 1776, were never finally adopted by the requisite number of States until March, 1781, when the war was nearly over. As the result proved, they marked only a very small advance over the existing _de facto_ government, for the constituent States were still too jealous of each other and too hostile to the creation of a central government to form a truly effective government. The founders of the Republic could only learn from their errors, but it is their great merit that they had the ability to profit in the stern school of experience, of which Franklin has said that it is a "dear school, but fools will learn in no other." The founders of the Republic were not fools, and while they did not, as Gladstone seems to intimate, have the inspired wisdom to develop a wonderful Constitution by sheer intuition unaided by experience, they did have the ability to make of their very errors the stepping-stones to a higher destiny. By the Articles of Confederation, which, as stated, became effective in 1781, the conduct of foreign affairs was vested in the new government, which was also given the power to create admiralty courts, regulate coinage, maintain an army and navy, borrow money, and emit bills of credit, but the great limitation was that in all other respects the constituent States retained absolute power, especially with reference to commerce and taxation. All that the central government could do was to requisition the States to furnish food supplies, and the States were then left to impose the taxes and, if necessary, to enforce their payment in their own way, with the inevitable result that they vied with each other in the struggle to evade them. The Confederation had no direct power over the citizens of the several States. Moreover, the Congress could not levy any taxes, or indeed pass any measure unless nine out of the thirteen States agreed, and the Constitution could not be amended except by unanimous vote. While the Congress could select a presiding officer to serve for one year, yet he had no real executive authority. During the recess of the Congress, a committee of thirteen, consisting of one delegate from each State, had _ad interim_ powers, but not greater than the Congress, which they represented. Such a government would have been fatal to any people, and so it nearly proved to be to the infant nation. Two circumstances saved them from the consequences of such incapacity: one was the invaluable aid of France, and the other the personality of George Washington. Of this great leader, one of the noblest that ever "lived in the tide of time," it is only necessary to quote the fine tribute paid to him by the greatest of the Victorian novelists in his _Virginians_: "What a constancy, what a magnanimity, what a surprising persistence against fortune!... Washington, the chief of a nation in arms, doing battle with distracted parties; calm in the midst of conspiracy; serene against the open foe before him and the darker enemies at his back; Washington, inspiring order and spirit into troops hungry and in rags; stung by ingratitude, but betraying no anger, and every ready to forgive; in defeat invincible, magnanimous in conquest and never so sublime as on that day when he laid down his victorious sword and sought his noble retirement--here, indeed, is a character to admire and revere; a life without a stain, a fame without a flaw." A year after the Articles of Confederation had been adopted, the war came to an end by a preliminary treaty on November 30, 1782. Now follows the least known chapter in American history. It was a period of travail, of which the Constitution of the United States and the present American nation were born. The government slowly succumbed from its own weakness to its inevitable death. Only the shreds and patches of authority were left. Gradually the union fell apart. Of the Continental Congress only fifteen members, representing seven colonies, remained to transact the affairs of the new nation. The army, which previously to the termination of the war had dissolved by the hundreds, was now unpaid and in a stale of revolt. Measure after measure was proposed in Congress to raise money to pay the interest on the bonded indebtedness, which was in arrears, and to provide funds for the most necessary expenses, but these failed, in Congress for the want of the necessary nine votes or, if enacted, the States treated the requisitions with indifference. The currency of the United States had fallen almost as low as the Austrian kronen, and men derisively plastered the walls of their houses with the worthless paper of the Continental Congress. Adequate authority no longer remained to carry out the terms of the treaties with England and France, and they were nullified by the failure of the infant nation to comply with its own obligations and the consequent refusal of the other contracting parties to comply with theirs. The government made a call upon the States to raise $8,000,000 for the most vital needs, but only $400,000 was actually received. Then Congress asked the States to vest in it the power to levy a tax of five per cent, on imports for a limited period, but, after waiting two years for the action of the States, less than nine concurred. The States were then asked to pledge their own internal revenue for twenty-five years to meet the national indebtedness, but this could only be done by unanimous consent, and while twelve States concurred, Rhode Island refused and the measure was defeated. It was again the infinite folly of the _liberum veto_ which, prior to the great partition, condemned Poland to chronic anarchy. The impotence of the new government, which was still sitting in Philadelphia, can be measured by the fact that on June 9, 1783, word came that eighty soldiers were on their way to Philadelphia to demand relief. They stacked their arms in front of the State House, where the Congress was then sitting, and refused to disband, when requested by Col. Alexander Hamilton, as the representative of the Congress, to do so. When Congress appealed to the government of Pennsylvania for protection, it was advised that the Pennsylvania militia was likewise insubordinate. The Congress then hastily fled by night and became a fugitive. The impotence of the Confederation can be measured by the fact that in the last fourteen months of its existence its receipts were less than $400,000, while the interest on the foreign debt alone was over $2,400,000, and the interest on the internal debt was five-fold greater. In the absence of any government and in the period of general prostration it was not unnatural that the spirit of Bolshevism grew with alarming rapidity. It even permeated the officers of the Army. In March, 1783, an anonymous communication was sent to Washington's officers to meet in secret conference to take some action, possibly to overthrow the government. A copy fell into Washington's hands and, while he forbade the assemblage of the officers under the anonymous call, he himself directed the officers to assemble. He unexpectedly appeared at the meeting and, being no speaker, he had reduced his appeal to writing. As he adjusted his spectacles to read it, he pathetically said: "I have not only grown gray but blind in your service." He then made a touching appeal to them not to increase by example the spreading spirit of revolt. The very sight of their old commander turned the hearts of the revolting element and the officers remained loyal to their noble leader. Where the spirit of disaffection was thus found in high places it naturally prevailed more widely among the masses who had been driven to frenzy by their sufferings. This culminated in a revolt in Massachusetts under the leadership of an old soldier named Shays, and it spread with such rapidity that not only did one-fifth of the people join in attempting to overthrow the remnant of established authority in Massachusetts, but it rapidly spread to other States. The offices of government and the courthouses were seized, the collection of debts was forbidden, and private property was forcibly appropriated to meet the common needs. Chaos had come again. It filled Washington's heart with disgust and despair. After surrendering his commission to the pitiful remnant of the government he had retired to Mount Vernon, and for a time declined to act further as the leader of his people. Thus, in October, 1785, he wrote James Warren, of Massachusetts: "The war, as you have very justly observed, has terminated most advantageously for America, and a fair field is presented to our view; but I confess to you freely, my dear sir, that I do not think we possess wisdom or justice enough to cultivate it properly. Illiberality, jealousy, and local policy mix too much in all our public councils for good government of the union. In a word, the Confederation appears to me to be little more than a shadow without the substance, and Congress a nugatory body, their ordinances being little attended to.... By such policy as this the wheels of government are clogged, and our brightest prospects, and that high expectation which was entertained of us by the wondering world, are turned into astonishment; and, from the high ground on which we stood, we are descending into the vale of confusion and darkness." Again he wrote to George Mason: "I have seen without despondency, even for a moment, the hours which America has styled its gloomy ones, but I have beheld no day since the commencement of hostilities that I thought our liberties in such imminent danger as at present. Indeed, we are verging so fast to destruction that I am feeling that sense to which I have been a stranger until within these three months." Again in 1786 he writes: "I think often of our situation, and view it with concern. From the high ground we stood upon, from the plain path which invited our footsteps, to be so fallen, so lost, is mortifying; but everything of virtue has, in a degree, taken its departure from our land.... What, gracious God, is man that there should be such inconsistency, and perfidiousness in his conduct! It was but the other day that we were shedding our blood to obtain the Constitutions under which we now live, and now we are unsheathing our swords to overturn them. The thing is so unaccountable that I hardly know how to realize it or to persuade myself that I am not under an illusion of a dream." It was, however, the darkest hour before the dawn, and again it was Washington who became his country's saviour. In 1785, some commissioners from the States of Virginia and Maryland visited Mount Vernon to pay their respects to the well-loved commander. After conferring with him upon the chaos of the times, they decided to issue a call for a general conference of the representatives of the States to be held on September 11, 1786, at Annapolis, Maryland, to discuss how far the States themselves could agree on common regulations of commerce. At the appointed time the delegates assembled from Virginia, Pennsylvania, Delaware, New York and New Jersey, and finding themselves too few in number to achieve the great objective, the convention contented itself by issuing another call, drafted by Alexander Hamilton, then under thirty years of age, to all the States to send delegates to a convention to be held in Philadelphia on the second Monday in May, 1787, "to take into consideration the situation of the United States, to devise such further provisions as should appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union." The dying Congress tardily approved of this suggestion, but finally, on January 21, 1787, grudgingly adopted a resolution that-- "It is expedient that on the second Monday in May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia _for the sole and express purpose of revising the Articles of Confederation_ and reporting to Congress and the several legislatures such alterations and provisions therein as shall, _when agreed to in Congress_ and conformed to by the States, render the Federal Constitution adequate to the exigency of the government and the preservation of the union." It will be noted by the italicized portions of the resolution that this impotent body thus vainly attempted to cling to the shadow of its vanished authority by stating that the proposed constitutional convention should merely revise the worthless Articles of Confederation and that such amendments should not have validity until adopted by Congress as well as by the people of the several States. How this mandate was disregarded and how the convention was formed, and proceeded to create a new government with a new Constitution, and how it achieved its mighty work, will be the subject of the next lecture. Anticipating the masterly ability with which a seemingly impotent and dying nation plucked from the nettle of danger the flower of safety, let me conclude this first address by quoting the words of de Tocqueville, in his remarkable work _Democracy in America_, where he says: "The Federal Government, condemned to impotence by its Constitution and no longer sustained by the presence of common danger ... was already on the verge of destruction when it officially proclaimed its inability to conduct the government and appealed to the constituent authority of the nation.... It is a novelty in the history of a society to see a calm and scrutinizing eye turned upon itself, when apprised by the legislature that the wheels of government are stopped; to see it carefully examine the extent of the field and patiently wait for two years until a remedy was discovered, which it voluntarily adopted, without having ever wrung a tear or a drop of blood from mankind." _II. The Great Convention_ Now follows a notable and yet little known scene in the drama of history. It reveals a people who, without shedding a drop of blood, calmly and deliberately abolished one government, substituted another, and erected it upon foundations which have hitherto proved enduring. Even the superstructure slowly erected upon these foundations has suffered little change in the most changing period of the world's history, and until recently its additions, few in number, have varied little from the plans of the original architects. The Constitution is to-day, not a ruined Parthenon, but rather as one of those Gothic masterpieces, against which the storms of passionate strife have beaten in vain. The foundations were laid at a time when disorder was rampant and anarchy widely prevalent. As I have already shown in my first lecture, credit was gone, business paralysed, lawlessness triumphant, and not only between class and class, but between State and State, there were acute controversies and an alarming disunity of spirit. To weld thirteen jealous and discordant States, demoralized by an exhausting war, into a unified and efficient nation against their wills, was a seemingly impossible task. Frederick the so-called Great had said that a federal union of widely scattered communities was impossible. Its final accomplishment has blinded the world to the essential difficulty of the problem. The time was May 25, 1787; the place, the State House in Philadelphia, a little town of not more than 20,000 people, and, at that time, as remote, measured by the facilities of communication, to the centres of civilization as is now Vladivostok. The _dramatis personae_ in this drama, though few in numbers, were, however, worthy of the task. Seventy-two had originally been offered or given credentials, for each State was permitted to send as many delegates as it pleased, inasmuch as the States were to vote in the convention as units. Of these, the greatest actual attendance was fifty-five, and at the end of the convention a saving remnant of only thirty-nine remained to finish a work which was to immortalize its participants. While this notable group of men contained a few merchants, financiers, farmers, doctors, educators, and soldiers, of the remainder, at least thirty-one were lawyers, and of these many had been justices of the local courts and executive officers of the commonwealths. Four had studied in the Inner Temple, at least five in the Middle Temple, one at Oxford under the tuition of Blackstone and two in Scottish Universities. Few of them were inexperienced in public affairs, for of the original fifty-five members, thirty-nine had been members of the first or second Continental Congresses, and eight had already helped to frame the constitutions of their respective States. At least twenty-two were college graduates, of whom nine were graduates of Princeton, three of Yale, two of Harvard, four of William and Mary, and one each from the Universities of Oxford, Columbia, Glasgow, and Edinburgh. A few already enjoyed world-wide fame, notably Doctor Franklin, possibly the most versatile genius of the eighteenth century and universally known and honoured as a scientist, philosopher, and diplomat, and George Washington, whose fame, even at that day, had filled the world with the noble purity of his character. It was a convention of comparatively young men, the average age being little above forty. Franklin was the oldest member, being then eighty-one; Dayton, the youngest, being twenty-seven. With the exception of Franklin and Washington, most of the potential personalities in the convention were under forty. Thus, James Madison, who contributed so largely to the plan that he is sometimes called "The Father of the Constitution," was thirty-six. Charles Pinckney, who, unaided, submitted the first concrete draft of the Constitution, was only twenty-nine, and Alexander Hamilton, who was destined to take a leading part in securing its ratification by his powerful oratory and his very able commentaries in the Federalist papers, was only thirty. Above all they were a group of gentlemen of substance and honour, who could debate for four months during the depressing weather of a hot summer without losing their tempers, except momentarily--and this despite vital differences--and who showed that genius for toleration and reconciliation of conflicting views inspired by a common fidelity to a great objective that is the highest mark of statesmanship. They represented the spirit of representative government at its best in avoiding the cowardice of time-servers and the low cunning of demagogues. All apparently were inspired by a fine spirit of self-effacement. Selfish ambition was conspicuously absent. They differed, at times heatedly, but always as gentlemen of candour and honour. The very secrecy of their deliberations, of which I shall presently speak, is ample proof how indifferent they were to popular applause and the _civium ardor prava jubentium_. The convention had been slow in assembling. Ample notice had been given that it would convene on May 13, 1787, but when that day arrived a mere handful of the delegates, less than a quorum, had assembled. The Virginia delegation, six in number, and forming probably the ablest delegation from any State, arriving in time, and failing to find a quorum then assembled, employed the period of waiting in submitting to the Pennsylvania delegation the outlines of a plan for the new Constitution. The plan was largely the work of James Madison, and how long it had been in preparation cannot be definitely stated. It is clear that four years before a Philadelphia merchant, one Peletiah Webster, had published a brochure proposing a scheme of dual sovereignty, under which the citizens would owe a double allegiance--one to the constituent States within the sphere of their reserved powers, and one to a federated government within the sphere of its delegated powers. Leagues of States had often existed, but a league which, within a prescribed sphere, would have direct authority over the citizens of the constituent States, without, however, abolishing the authority of such States as to their reserved sphere of power, was a novel theory. How far the Virginia project had been influenced by Webster's suggestion is not clear, but it is certain that before the convention met Pennsylvania and Virginia, two of the most powerful States, were committed to it. The suggestion was a radical one, for the States, with few exceptions, were chiefly insistent upon the preservation of their sovereignty, and while they were willing to amend the Articles of Confederation by giving fuller authority to the central government, such as it was, the suggestion of subordinating the States to a new sovereign power, whose authority within circumscribed limits was to be supreme, was opposed to all their conventions and traditions. Washington, however, had warmly welcomed the creation of a strong central government, and his correspondence with the leading men of the colonies for some years previously had been burdened with arguments to convince them that a mere league of States would not suffice to create a stable nation. To George Washington, soldier and statesman, is due above all men the ideal of a federated union, for without his influence--that of a noble and unselfish leader--the great result would probably never have been secured. While still waiting for the convention, to meet, and while discussing what was expedient and practicable when they did meet, Washington one day said to a group of delegates, who were considering the acute nature of the crisis: "It is too probable that no plan that we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and just can repair. The event is in the hand of God." Noble words, fit to be written in letters of gold over the portal of every legislature of the world, and it was in this spirit that the convention finally convened on May 25th, 1787. When the delegates from nine States had assembled, Washington was unanimously elected the presiding officer of the convention. It began by adopting rules of order, and the most significant of these was the provision for secrecy. No copy should be taken of any entry on the Journal, or even permission given to inspect it, without leave of the convention, and "nothing spoken in the house be printed or otherwise published or communicated without leave." The yeas and nays should not be recorded. The rule of secrecy was enlarged by an unwritten understanding that, even when the convention had adjourned, no disclosure should be made of its proceedings during the life of its members. When after nearly four months, the convention adjourned, the secret had been kept, and no one knew even the concrete result of its deliberations until the Constitution itself, and nothing else, was offered to the approval of the people. The high-way, upon which the State House fronted, was covered with earth, to deaden the noise of traffic, and sentries were posted at every means of ingress and egress, to prevent any intrusion upon the privacy of the convention. The members were not photographed daily for the pictorial Press, nor did any cinema register their entrance into the simple colonial hall where they were to meet. Notwithstanding this limitation--for no present-day conference or assembly can proceed with its labours until its members are photographed for the curiosity of the public--these simple-minded gentlemen--less intent upon their appearance than their task--were to accomplish a work of enduring importance. The extreme care which was taken to preserve this secrecy inviolate, and its purpose, were indicated in an incident handed down by tradition. One of the members dropped a copy of a proposition then before the convention for consideration, and it was found by another of the delegates and handed to General Washington. At the conclusion of the session, Washington arose and sternly reprimanded the member for his carelessness by saying: "I must entreat gentlemen to be more careful, lest our transactions get into the newspapers and disturb the public repose by premature speculations. I know not whose paper it is, but there it is [_throwing it down on the table_]. Let him who owns it, take it." He then bowed, picked up his hat and left the room with such evidences of annoyance that, like school-children, no delegate was willing to admit the ownership of the paper. The thought suggests itself: How different the result at Versailles and Genoa might have been had there been the same reasonable provisions for discussion and action uninfluenced by too premature public comment of the day! In these days, when representative government has degenerated into government by a fleeting public opinion, the price we pay for such government by, for and of the Press, is too often the inability of representatives to do what they deem wise and just. At the close of the convention its records were committed into the keeping of Washington, with instructions to "retain the journal and other papers, subject to order of Congress, if ever formed under the Constitution." Even the journal consisted of little more than daily memoranda, from which the minutes ought to have been, but never were, made; and these fragmentary records of the proceedings of a convention which had been in continuous session for nearly four months were never published until the year 1819, or thirty-two years after the close of the convention. Thus, the American people knew nothing of their greatest convention until a generation later, and then only a few bones of the mastodon were exhibited to their curious gaze. The members of the convention kept its secrets inviolate for many years. With few exceptions, the great secrets of the convention died with them. Only one, James Madison, left a comprehensive statement of the more formal proceedings. With this notable exception, only a few anecdotes, handed down by tradition, escaped oblivion. The first of the number to break the pledge of secrecy was Robert Yates, Chief Justice of New York, who, in 1821, published his recollections; but, as he had left the convention a few months after it began, his notes ceased with the 5th of July. The world would thus have been for ever ignorant of the details of one of the most remarkable conventions in the annals of mankind had it not been that one of the ablest of their number, James Madison, regularly attended the sessions and kept notes from day to day of the debates. While he was not a stenographer, he had a gift for condensing a speech and fairly representing its substance. He jealously guarded his Journal of the Convention until his death. Its very existence was known to few. He died in 1836, and four years later the government purchased the manuscript from his widow. Then, for the first time, the curtain was measurably raised upon the proceedings of a convention which had created, as we now know, one of the greatest nations in history. Fifty-three years after the close of the convention, and when nearly every one of its participants were dead, Madison's Journal was first published. When was a great secret better kept? Grateful as posterity must be for this inestimable gift of great human enterprise, yet even Madison's careful journal fills one with the deepest regret that this wonderful debate, which lasted for nearly four months between men of no ordinary ability, could not have been preserved to the world. Two or three of the speeches which Madison gives in his Journal are complete, for when Doctor Franklin spoke he reduced his remarks to writing and gave a copy to Madison, but of the other speeches only a fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton, addressed the convention in a speech that lasted five hours, in which he stated his philosophy of government, but of that only a short condensation, and possibly not even an accurate fragment, remains. Without this extraordinary provision for secrecy, which is so opposed to modern democratic conventions, and which so little resembles the famous point as to "open covenants openly arrived at," the convention could not have accomplished its great work, for these wise men realized that a statesman cannot act wisely under the observation of a gallery, and especially when the gallery compels him by the pressure of public opinion to work as it directs. I recognize that public opinion--often temporarily uninformed but in the end generally right--does often save the democracies of the world from the selfish ends of self-seeking and misguided leadership; but, given noble and wise representatives, they work best when least influenced by the fleeting passions of the day. It is evident that if the framers of the Constitution had met, as similar conventions have within recent years met at Versailles and Genoa, with the world as their gallery and with the representatives of the Press as an integral part of the conference, they would have accomplished nothing. The probability is that the convention would not have lasted a month if their immediate purpose had been to placate current opinion. It may be doubted whether such a convention, if called to-day, either in your country or mine, could achieve like results, for in this day of unlimited publicity, when men divide not as individuals but in powerful and organized groups, a constitutional convention would, I fear, prove a witches' cauldron of class legislation and demagoguery. Is it not possible that modern democracy is in danger of strangulation by its present-day methods and ideals? Again the words of Washington suggest themselves: "If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and just can repair." Working with a sad sincerity and with despair in their hearts, this little band of men wrought a work of surpassing importance, and if they did not receive the immediate plaudits of the living generation, their shades can at least solace themselves with the reflection that posterity has acclaimed their work as one of the greatest political achievements of man. The rules of order and the nature of the proceedings thus determined, the convention opened by an address by Mr. Randolph of Virginia, in which he submitted, in the form of fifteen points--nearly the number of the fatal fourteen--the outlines for a new government. He himself in his opening speech summarized the propositions by candidly confessing "that they were not intended for a federal government" (thereby meaning a mere league of States) but "a strong consolidated union." Upon this radical change the convention was to argue earnestly and at times bitterly for many a weary day. The plan provided for a national legislature of which the lower branch should be elected by the people and the upper branch by the lower branch upon the nomination of the legislatures of the States. This legislature should enjoy all the legislative rights given to the federation, and there followed the sweeping grant that it "could legislate in all cases to which the separate States are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual legislation," with power "to negative all laws passed by the several States contravening in the opinion of the national legislature the Articles of the Union." A national executive was proposed, together with a national judiciary, and these two bodies were given authority "to examine every act of the national legislature before it shall operate and every act of a particular legislature before a negative thereon shall be final." This marked an immense advance over the Articles of Confederation, under which there was no national executive or judiciary, and under which the legislature had no direct power over the citizens of the States, and could only impose duties upon the States themselves by the concurrence of nine of the thirteen. Hardly had Mr. Randolph submitted the so-called Virginia plan when Charles Pinckney, of South Carolina, a young man of twenty-nine years of age, with the courage of youth submitted to the House a draft of the future federal government. Curiously enough, it did not differ in principle from the Virginia plan, but was more specific and concrete in stating the powers which the federal government should exercise, and many of its provisions were embodied in the final draft. Indeed, Pinckney's plan was the future Constitution of the United States in embryo; and when it is read and contrasted with the document which has so justly won the acclaim of men throughout the world, it is amazing that so young a man should have anticipated and reduced to a concrete and effective form many of the most novel features of the Federal Government. As the only copy of Pinckney's plan was furnished years afterwards to Madison for his journal, it is possible that some of its wisdom was of the _post factum_ variety. Having received the two plans, the convention then went, on May 30, into a committee of the whole to consider the fifteen propositions in the Virginia plan _seriatim_. They wisely concluded to determine abstract ideas first and concrete forms later. Apparently for the time being little attention was paid to Pinckney's plan, and this may have been due to the hostile attitude of the older members of the convention to the presumption of his youth. Then ensued a very remarkable debate on the immediate propositions and the principles of government which underlay them, which lasted for two weeks. On June 13 the committee rose. Even the fragments of this debate, which may well have been one of the most notable in history, indicate the care with which the members had studied governments of ancient and modern times. There were many points of difference, but chief of them, which nearly resulted in the collapse of the convention, was the inevitable difficulty which always arises in the formation of a league of States or an association of nations between the great and the little States. The five larger States had a population that was nearly twice as great as the remaining eight States. Thus Virginia's population was nearly ten-fold as great as Georgia. Moreover, the States differed greatly in their material wealth and power. Nevertheless, all of them entered the convention as independent sovereign nations, and the smaller nations contended that the equality in suffrage and political power which prevailed in the convention (in which each State, large or small, voted as a unit), should and must be preserved in the future government. To this the larger States were quite unwilling to yield, and when the committee rose they reported, in substance, the Virginia plan, with the proviso that representation in the proposed double-chambered Congress should be "according to some equitable ratio of representation." On June 15 the small States presented their draft, which was afterwards known as the New Jersey plan, because it was introduced by Mr. Patterson of that State. It only contemplated an amendment to the existing Constitution and an amplification of the powers of the impotent Confederation. Its chief advance over the existing government was that it provided for a federal executive and a federal judiciary, but otherwise the government remained a mere league of States, in which the central government could generally act only by the vote of nine States, and in which their power was exhausted when they requested the States to enforce the decrees. Its chief advance over the Articles of Confederation, in addition to the creation of an executive, was an assertion that the acts of Congress "shall be the supreme law of the respective States ... and that the judiciary of the several States shall be bound thereby in their decisions," and that "if any State or any body of men in any State shall oppose or prevent the carrying into execution of such acts or treaties the federal executive shall be authorized to call forth the power of the confederated States ... to enforce and compel obedience to such acts or an observance of such treaties." While this was some advance toward a truly national government, it yet left the national executive dependent upon the constituent States, for if they failed to respond to the call above stated the national government had no direct power over their citizens. The New Jersey plan precipitated a crisis, and thereafter, and for many days, the argument proceeded, only to increase in bitterness. On June 18 Alexander Hamilton, who agreed with no one else, addressed the convention for the first time. He spoke for five hours and reviewed exhaustively the Virginia and New Jersey plans, and possibly the Pinckney draft. Even the fragment of the speech, as taken in long-hand by Madison, shows that it was a masterly argument. He stated his belief "that the British Government was the best in the world and that he doubted much whether anything short of it would do in America." He praised the British Constitution, quoting Monsieur Necker as saying that "it was the only government in the world which unites government strength with individual security." He analysed and explained your Constitution as it then was and advocated an elective monarchy in form though not in name. It is true that he called the executive a "governor" and not a king, but the governor, so-called, was to serve for life and was given not only "a negative on all laws about to be passed," but even the execution of all duly enacted laws was in his discretion. The governor, with the consent of the Senate, was to make war, conclude all treaties, make all appointments, pardon all offences, with the full power through his negative of saying what laws should be passed and which enforced. Hamilton's governor would have been not dissimilar to Louis XIV, and could have said with him, "_L'état, c'est moi_!" The Senate also served for life, and the only concession which Hamilton made to democracy was an elective house of representatives. Thinly veiled, his plan contemplated an elective king with greater powers than those of George III, an imitation House of Lords and a popular House of Commons with a limited tenure. Hamilton's plan was never taken seriously and, so far as the records show, was never afterwards considered. His admirers have given great praise to his work in the federal convention. His real contribution lay in the fact that when the Constitution was finally drafted and offered to the people, while he regarded it as a "wretched makeshift," to use his own expression, yet he was broad and patriotic enough to surrender his own views and advocate the adoption of the Constitution. In so doing, he fought a valorous fight, secured the acquiescence of the State of New York, and without its ratification the Constitution would never have been adopted. Hamilton later thought better of the Constitution, and its successful beginning is due in large measure to his genius for constructive administration. As the debate proceeded, the crisis precipitated by the seemingly insoluble differences between the great and little States became more acute. The smaller States contended that the convention was transgressing its powers, and they demanded that the credentials of the various members be read. In this there was technical accuracy, for the delegates had been appointed to revise the Articles of Confederation and not to adopt a new Constitution. A majority of the convention, however, insisted upon the convention proceeding with the consideration of a new Constitution, and their views prevailed. It speaks well for the honour of the delegates that although their differences became so acute as to lead at times to bitter expressions, neither side divulged them to the outside public. The smaller States could easily have ended the convention by an appeal to public opinion, which was not then prepared for a "consolidated union," but they were loyal enough to fight out their quarrels within the walls of the convention hall. At times the debate became bitter in the extreme. James Wilson, a delegate of Pennsylvania and a Scotchman by birth and education, turning to the representatives of the little States, passionately said: "Will you abandon a country to which you are bound by so many strong and enduring ties? Should the event happen, it will neither stagger my sentiments nor duty. If the minority of the people refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds." He referred to the demand of the larger States that representation should be proportioned to the population. To this Bedford, of Delaware, as heatedly replied; "We have been told with a dictatorial air that this is the last moment for a fair trial in favour of good government. It will be the last, indeed, if the propositions reported by the committee go forth to the people. The large States dare not dissolve the convention. If they do, the small ones will find some foreign ally of more honour and good faith, who will take them by the hand and do them justice." Finally, the smaller States gave their ultimatum to the larger States that unless representation in both branches of the proposed legislature should be on the basis of equality--each State, whether large or small, having one vote--they would forthwith leave the convention. An eye-witness says that, at that moment, Washington, who was in the chair, gave old Doctor Franklin a significant look. Franklin arose and moved an adjournment for forty-eight hours, with the understanding that the delegates should confer with those with whom they disagreed rather than with those with whom they agreed. A recess was taken, and when the convention re-convened on July 2, a vote was taken as to equality of representation in the Senate and resulted in a tie vote. It was then decided to appoint a committee of eleven, one from each State, to consider the question, and this committee reported three days later, on July 5, in favour of proportionate representation in the House and equal representation in the Senate. This suggestion, which finally saved the situation, was due to that wise old utilitarian philosopher, Franklin. Again, a vehement and passionate debate followed. Vague references were made to the sword as the only method of solving the difference. On July 9 the committee again reported, maintaining the principle of their recommendation, while modifying its details, and the debate then turned upon the question to what extent the negro slaves should count in estimating population for the purposes of proportionate representation in the lower House. Various suggestions were made to base representation upon wealth or taxation and not upon population. For several days the debate lasted during very heated weather, but on the night of July 12 the temperature dropped and with it the emotional temperature of the delegates. Some days previous, namely, June 28, when the debates were becoming so bitter that it seemed unlikely that the convention could continue, Doctor Franklin, erroneously supposed by many to be an atheist, made the following solemn and beautiful appeal to their better natures. He said: "The small progress we have made after four or five weeks' close attendance and continual reasonings with each other--our different sentiments on almost every question, several of the last producing as many noes as ayes, is, methinks, a melancholy proof of the imperfection of the human understanding. We indeed seem to feel our own want of political wisdom, since we have been running about in search of it. We have gone back to ancient history for models of government, and examined the different forms of those Republics which, having been formed with the seeds of their own dissolution, now no longer exist. And we have viewed modern States all around Europe, but find none of their constitutions suitable to our circumstances. "In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the Father of Lights to illuminate our understandings?... And have we now forgotten that powerful Friend or do we imagine that we no longer need His assistance? I have lived, sir, a long time, and the longer I live, the more convincing proofs I see of this truth: That _God governs in the affairs of men_. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid? We have been assured, sir, in the sacred writings, that 'except the Lord build the House they labour in vain that build it.' I firmly believe this; and I also believe that without His concurring aid we shall succeed in this political building no better than the builders of Babel. We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and byword down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing governments by human wisdom and leave it to chance, war, and conquest. "I therefore beg leave to move that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service." It may surprise my audience to know the sequel. The resolution was voted down, partly on the ground that if it became known to the public that the convention had finally resorted to prayers it might cause undue alarm, but also because the convention was by that time so low in funds that, as one of the members said, it did not have enough money to pay a clergyman his fees for the service. I suspect that their controlling reason was their indisposition to break their self-imposed rule of secrecy by contact with the outer world until their work was completed. Perhaps they thought that "God helps those who help themselves." On July 16 the compromise was finally adopted of recognizing the claims of the larger States to proportionate representation in the House of Representatives, and recognizing the claims of the smaller States by according to them equal representation in the Senate. This great result was not effected without the first break in the convention, for the delegates from New York left in disgust and never returned, with the exception of Hamilton, who occasionally attended subsequent sessions. Such was the great concession that was made to secure the Constitution; and the only respect in which the Constitution to-day cannot be amended is that by express provision the equality of representation in the Senate shall never be disturbed. Thus it is that to-day some States, which have less population than some of the wards in the city of New York, have as many votes in the Senate as the great State of New York. It is unquestionably a palpable negation of majority rule, for as no measure can become a law without the concurrence of the Senate--now numbering ninety-six Senators--a combination of the little States, whoso aggregate population is not a fifth of the American people, can defeat the will of the remaining four-fifths. Pennsylvania and New York, with nearly one-sixth of the entire population of the United States, have only four votes in ninety-six votes in the Senate. Fortunately, political alignments have rarely been between the greater and the smaller States exclusively. Their equality in the Senate was a big price to pay for the Union, but, as the event has shown, not too great. The convention next turned its attention to the Executive and the manner of its selection, and upon this point there was the widest contrariety of view, but, fortunately, without the acute feeling that the relative power of the States had occasioned. Then the judiciary article was taken up, and there was much earnest discussion as to whether the new Constitution should embody the French idea of giving to the judiciary, in conjunction with the Executive, a revisory power over legislation. Three times the convention voted upon this dangerous proposition, and on one occasion it was only defeated by a single vote. Fortunately, the good sense of the convention rejected a proposition, that had caused in France constant conflicts between the Executive and the Judiciary, by substituting the right of the President to veto congressional legislation, with the right of Congress, by a two-thirds vote of each House, to override the veto, and secondly by an implied power in the Judiciary to annul Congressional or State legislation, not on the grounds of policy, but on the sole ground of inconsistency with the paramount law of the Constitution. In this adjustment, the influence of Montesquieu was evident. These and many practical details had resulted in an expansion of the fifteen proposals of the Virginia plan to twenty-three. Having thus determined the general principles that should guide them in their labours, the convention, on July 26 appointed a Committee on Detail to embody these propositions in the formal draft of a Constitution and adjourned until August 6 to await its report. That report, when finally completed, covered seven folio pages, and was found to consist of a Preamble and twenty-three Articles, embodying forty-three sections. The draft did not slavishly follow the Virginia propositions, for the committee embodied some valuable suggestions which had occurred to them in their deliberations. Nevertheless, it substantially put the Virginia plan into a workable plan which proved to be the Constitution of the United States in embryo. When the committee on detail had made its report on August 6, the convention proceeded for over a month to debate it with the most minute care. Every day for five weeks, for five hours each day, the members studied and debated with meticulous care every sentence of the proposed Constitution. Time does not suffice even for the barest statement of the many interesting questions which were thus discussed, but they nearly ran the whole gamut of constitutional government. Many fanciful ideas were suggested but with unvarying good sense they were rejected. Some of the results were, under the circumstances, curious. For example, although it was a convention of comparatively young men, and although the convention could have taken into account the many successful young men in public life in Europe--as, for example, William Pitt--they put a disqualification upon age by providing that a Representative must be twenty-five years of age, a Senator thirty years of age, and a President thirty-five years of age. When it was suggested that young men could learn by admission to public life, the sententious reply was made that, while they could, they ought not to have their education at the public expense. The debates proceeded, however, in better temper, and almost the only question that again gave rise to passionate argument was that of slavery. The extreme Southern States declared that they would never accept the new plan "except the right to import slaves be untouched." This question was finally compromised by agreeing that the importation of slaves should end after the year 1808. It however left the slave population then existing in a state of bondage, and for this necessary compromise the nation seventy-five years later was to pay dearly by one of the most destructive civil wars in the annals of mankind. August was now drawing to a close. The convention had been in session for more than three months. Of its work the public knew nothing, and this notwithstanding the acute interest which the American people, not merely facing the peril of anarchy, but actually suffering from it, must have taken in the convention. Its vital importance was not under-estimated. While its builders, like all master builders, did "build better than they knew," yet it cannot be said that they under-estimated the importance of their labours. As one of their number, Gouveneur Morris said: "The whole human race will be affected by the proceedings of this convention." After it adjourned one of its greatest participants, James Wilson, of Pennsylvania, said: "After the lapse of six thousand years since the creation of the world, America now presents the first instance of a people assembled to say deliberately and calmly and to decide leisurely and peaceably on the form of government by which they will bind themselves and their posterity." In the absence of any authentic information, the rumour spread through the colonies that the convention was about to reconstitute a monarchy by inviting the second son of George III, the Bishop of Osnaburg, to be King of the United States; and these rumours became so persistent as to evoke from the silent convention a semi-official denial. There is some reason to believe that a minority of the convention did see in the restoration of a constitutional monarchy the only solution of the problem. On September 8 the committee had finally considered and, after modifications, approved the draft of the Committee on Detail, and a new committee was thereupon appointed "to revise the style of and arrange the articles that had been agreed to by the House." This committee was one of exceptional strength. There were Dr. William Samuel Johnson, a graduate of Oxford and a friend of his great namesake, Samuel Johnson; Alexander Hamilton, Gouveneur Morris, a brilliant mind with an unusual gift for lucid expression; James Madison, a true scholar in politics, and Rufus King, an orator who, in the inflated language of the day, "was ranked among the luminaries of the present age." The convention then adjourned to await the final revision of the draft by the Committee on Style. On September 12 the committee reported. While it is not certain, it is believed that its work was largely that of Gouveneur Morris. September 13 the printed copies of the report of the Committee on Style were ready, and three more days were spent by the convention in carefully comparing each article and section of this final draft. On September 15 the work of drafting the Constitution was regarded as ended, and it was adopted and ordered to be engrossed for signing. It may be interesting at this point to give the result of their labours as measured in words, and if the framers of the Constitution deserve the plaudits of posterity in no other respect they do in the remarkable self-restraint which those results revealed. The convention had been in session for 81 continuous days. Probably they had consumed over 300 hours in debate. If their debates had been fully reported, they would probably have filled at least fifty volumes, and yet the net result of their labours consisted of about 4,000 words, 89 sentences, and about 140 distinct provisions. As the late Lord Bryce, speaking in this age of unbridled expression, both oral and printed, so well has said: "The Constitution of the United States, including the amendments, may be read aloud in twenty-three minutes. It is about half as long as Saint Paul's Epistle to the Corinthians, and one-fourth as long as the Irish Land Act of 1881. History knows few instruments which in so few words lay down equally momentous rules on a vast range of matters of the highest importance and complexity." Even including the nineteen amendments, the Constitution, after one hundred and thirty-five years of development, does not exceed 7,000 words. What admirable self-restraint! Possibly single opinions of the Supreme Court could be cited which are as long as the whole document of which they are interpreting a single phrase. This does not argue that the Constitution is an obscure document, for it would be difficult to cite any political document in the annals of mankind that was so simple and lucid in expression. There is nothing Johnsonese about its style. Every word is a word of plain speech, the ordinary meaning of which even the man in the street knows. No tautology is to be found and no attempt at ornate expression. It is a model of simplicity, and as it flows through the reaches of history it will always excite the admiration of those who love clarity and not rhetorical excesses. One can say of it as Horace said of his favourite Spring: _O, fons Bandusiae, splendidior vitro. Dulce digne mero, non sine floribus_. If I be asked why, if this be true, it has required many lengthy opinions of the Supreme Court in the 256 volumes of its Reports to interpret its meaning, the answer is that, as with the simple sayings of the great Galilean, whose words have likewise been the subject of unending commentary, the question is not one of clarity but of adaptation of the meaning to the ever-changing conditions of human life. Moreover, as with the sayings of the Master or the unequalled verse of Shakespeare, questions of construction are more due to the commentators than to the text itself. On September 17 the convention met for the last time. The document was engrossed and laid before the members for signature. Of the fifty-five members who had attended, only thirty-nine remained. Of those, a number were unwilling to sign as individuals. While the members had not been unconscious of the magnitude of their labours, they were quite insensible of the magnitude of their achievement. Few there were of the convention who were enthusiastic about this result. Indeed, as the document was ready for signature, it became a grave question whether the remnant which remained had sufficient faith in their own work to subscribe their names, and if they failed to do so its adoption by the people would have been impossible. It was then that Doctor Franklin rendered one of the last and greatest services of his life. With ingratiating wit and with all the impressiveness that his distinguished career inspired, Franklin thus spoke: "I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. For having lived long I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment and to pay more respect to the judgment of others. Most men indeed as well as most sects in religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele, a Protestant, in a dedication tells the Pope that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain French lady, who in a dispute with her sister, said: 'I don't know how it happens, sister, but I meet with nobody but myself that's always in the right.'--_Il n'y a que moi qui a toujours raison_. "In these sentiments, sir, I agree to this Constitution with all its faults, if they are such; because I think a general government necessary for us, and there is no form of government but what may be a blessing to the people, if well administered, and I believe further that this is likely to be well administered for a course of years, and can only end in despotism as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. I doubt, too, whether any other convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, sir, to find this system approaching so near to perfection as it does.... Thus, I consent, sir, to this Constitution because I expect no better, and because I am not sure that it is not the best. The opinions I have had of its errors I sacrifice to the public good, I have never whispered a syllable of them abroad. Within these walls they were born and here they shall die. If every one of us in returning to our constituents were to report the objections he has had to it and endeavour to gain partisans in support of them, we might prevent its being generally received, and thereby lost all the salutary effects and great advantages resulting naturally in our favour among foreign nations as well as among ourselves from our real or apparent unanimity. "On the whole, sir, I cannot help expressing a wish that every member of the convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility--and to make manifest our unanimity, put his name to this instrument." Truly this spirit of Doctor Franklin could be profitably invoked in this day and generation, when nations are so intolerant of the ideas of other nations. As the members, moved by Franklin's humorous and yet moving appeal, came forward to subscribe their names, Franklin drew the attention of some of the members to the fact that on the back of the President's chair was the half disk of a sun, and, with his love of metaphor, he said that painters had often found it difficult to distinguish in their art a rising from a setting sun. He then prophetically added: "I have often and often in the course of the sessions and the vicissitudes of my hopes and fears in its issues, looked at that behind the President without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun." Time has verified the genial doctor's prediction. The career of the new nation thus formed has hitherto been a rising and not a setting sun. He had in his sixty years of conspicuously useful citizenship--and perhaps no nation ever had a more untiring and unselfish servant--done more than any American to develop the American Commonwealth, but like Moses, he was destined to see the promised land only from afar, for the new Government had hardly been inaugurated, before Franklin died, as full of years as honours. Prophetic as was his vision, he could never have anticipated the reality of to-day, for this nation, thus deliberately formed in the light of reason and without blood or passion, is to-day, by common consent, one of the greatest and, I trust I may add, one of the noblest republics of all time. _III. The Political Philosophy of the Constitution_ In my last address I left Doctor Franklin predicting to the discouraged remnant of the constitutional convention that the nation then formed would be a "rising sun" in the constellation of the nations. The sun, however, was destined to rise through a bank of dark and murky clouds, for the Constitution could not take effect until it was ratified by nine of the thirteen States; and when it was submitted to the people, who selected State conventions for the purpose of ratifying or rejecting the proposed plan of government, a bitter controversy at once ensued between two political parties, then in process of formation, one called the Constitution ratified without controversy. In the remaining ten the struggle was long and arduous, and nearly a year passed before the requisite nine States gave their assent. Two of the States refused to become parts of the new nation, even after it began, and three years passed before the thirteen States were re-united under the Constitution. It could not have been ratified had there not been an assurance that there would be immediate amendments to provide a Bill of Rights to safeguard the individual. Thus came into existence the first ten amendments to the Constitution, with their perpetual guaranty of the fundamental rights of religion, freedom of speech and of the Press, the right of assemblage, the immunity from unreasonable searches and seizures, the right of trial by jury, and similar guarantees of fundamental individual rights. Distrustful as the American people were of the new Constitution, they yet had the political sagacity to prefer its imperfections, whatever they imagined them to be, to the mad spirit of innovation; and in order that the great instrument should not, through the excesses of party passion or the temporary caprices of fleeting generations, speedily become a mere "scrap of paper" they very wisely provided that no amendment should, in the future, be made unless it was proposed by at least two-thirds of the Senate and the House of Representatives and ratified by three-fourths of the States through their legislatures or through special conventions. This was only one of many striking negations of the principle of majority rule. As a result of this provision, if we count the first ten amendments as virtually part of the original document, only nine amendments have been adopted in 185 years, and of these, excepting the amendments which ended slavery as the result of the Civil War, only the last three, passed in recent years partly through the relaxing influence of the world war, mark a serious departure from the basic principles of the Constitution. This stability is the more remarkable when we recall the profound and revolutionary change that has taken place in the social life of man since the Constitution was adopted. It was framed at the very end of the pastoral-agricultural age of humanity. The industrial revolution, which has more profoundly affected man in the last century and a half than all the changes which had theretofore taken place in the life of man since the cave-dweller, was only then beginning. Measured in terms of mechanical power, men when the Constitution was formed were Lilliputians as compared with the Brobdingnagians of our day, when man outflies the eagle, outswims the fish, and by his conquest and utilization of the invisible forces of nature has become the superman; and yet the Constitution of 1787 is, in most of its essential principles, still the Constitution of 1922. This surely marks it as a marvel in statecraft and can only be explained by the fact that the Constitution was developed by a people who, as "children brave and free of the great mother-tongue," had a real genius for self-government and its essential element, the spirit of self-restraint. While it is true that the _text_ of the instrument has suffered almost as little change as the Nicene Creed, yet it would be manifest error to suggest that in its development by practical application the Constitution has not undergone great changes. The first and greatest of all its expounders, Chief Justice Marshall, said, in one of his greatest opinions, that the Constitution was-- "intended to endure for ages to come, and consequently to be _adapted_ to the various crises of human affairs. To have prescribed the means by which government should in all future times execute its powers would have been to change entirely the character of the instrument and to give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been foreseen dimly, and can best be provided for as they occur." In this great purpose of enumerating rather than defining the powers of government its framers were supremely wise. While it was marvellously sagacious in what it provided, it was wise to the point of inspiration in what it left unprovided. Nothing is more admirable than the self-restraint of men who, venturing upon an untried experiment, and after debating for four months upon the principles of government, were content to embody their conclusions in not more than four thousand words. To this we owe the elasticity of the instrument. Its vitality is due to the fact that, by usage, judicial interpretation, and, when necessary, formal amendment, it can be thus adapted to the ever-accelerating changes of the most progressive age in history, and that a people have administered the Constitution who, in the process of such adaptation, have generally shown the same spirit of conservative self-restraint as did the men who framed it. The Constitution is neither, on the one hand, a Gibraltar rock, which wholly resists the ceaseless washing of time or circumstance, nor is it, on the other hand, a sandy beach, which is slowly destroyed by the erosion of the waves. It is rather to be likened to a floating dock, which, while firmly attached to its moorings, and not therefore the caprice of the waves, yet rises and falls with the tide of time and circumstance. While in its practical adaptation to this complex age the men who framed it, if they could "revisit the glimpses of the moon," would as little recognize their own handiwork as their own nation, yet they would still be able to find in successful operation the essential principles which they embodied in the document more than a century ago. Its success is also due to the fact that its framers were little influenced by the spirit of doctrinarianism. They were not empiricists, but very practical men. This is the more remarkable because they worked in a period of an emotional fermentation of human thought. The long-repressed intellect of man had broken into a violent eruption like that of a seemingly extinct volcano. From the middle of the eighteenth century until the end of the French Revolution the masses everywhere were influenced by the emotional, and at times hysterical, abstractions of the French encyclopedists; and that these had influenced thought in the American colonies is readily shown in the preamble of the Declaration of Independence, with its unqualified assertion of the equality of men and the absolute right of self-determination. The Declaration sought in its noble idealism to make the "world safe for democracy," but the Constitution attempted the greater task of making democracy safe for the world by inducing a people to impose upon themselves salutary restraints upon majority rule. Fortunately, the framers of the Constitution had learned a rude and terrible lesson in the anarchy that had followed the War of Independence. They were not so much concerned about the rights of man as about his duties, and their great purpose was to substitute for the visionary idealism of a rampant individualism the authority of law. Of the hysteria of that time, which was about to culminate in the French Revolution, there is no trace in the Constitution. They were less concerned about Rousseau's social contract than to restore law and order. Hard realities and not generous and impossible abstractions interested them. They had suffered grievously for more than ten years from misrule and had a distaste for mere phrase-making, of which they had had a satiety, for the Constitution, in which there is not a wasted word, is as cold and dry a document as a problem in mathematics or a manual of parliamentary law. Its mandates have the simplicity and directness of the Ten Commandments, and, like the Decalogue, it consists more of what shall not be done than what shall be done. In this freedom from empiricism and sturdy adherence to the realities of life, it can be profitably commended to all nations which may attempt a similar task. While the Constitution apparently only deals with the practical and essential details of government, yet underlying these simply but wonderfully phrased delegations of power is a broad and accurate political philosophy, which goes far to state the "law and the prophets" of free government. These essential principles of the Constitution may be briefly summarized as follows: 1. _The first is representative government_. Nothing is more striking in the debates of the convention than the distrust of its members, with few exceptions, of what they called "democracy." By this term they meant the power of the people to legislate directly and without the intervention of chosen representatives. They believed that the utmost concession that could be safely made to democracy was the power to select suitable men to legislate for the common good, and nothing is more striking in the Constitution than the care with which they sought to remove the powers of legislation from the _direct_ action of the people. Nowhere in the instrument is there a suggestion of the initiative or referendum. Even an amendment to the Constitution could not be directly proposed by the people in the exercise of their residual power or adopted by them. As previously said, it could only be proposed by two-thirds of the House and the Senate, and then could only become effective, if ratified by three-fourths of the States, acting, not by a popular vote, but through their chosen representatives either in their legislatures or special conventions. Thus they denied the power of a majority to alter even the form of government. Moreover, they gave to the President the power to nullify laws passed by a majority of the House and Senate by his simple veto, and yet, fearful of an unqualified power of the President in this respect, they provided that the veto itself should be vetoed, if two-thirds of the Senate and House concurred in such action. Moreover, the great limitations of the Constitution, which forbid the majority, or even the whole body of the House and Senate, to pass laws either for want of authority or because they impair fundamental rights of individuals, are as emphatic a negation of an absolute democracy as can be found in any form of government. Measured by present-day conventions of democracy, the Constitution is an undemocratic document. The framers believed in representative government, to which they gave the name "Republicanism" as the antithesis to "democracy." The members of the Senate were to be selected by State legislatures, and the President himself was, as originally planned, to be selected by an electoral college similar to the College of Cardinals. The debates are full of utterances which explain this attitude of mind. Mr. Gerry said: "The evils we experience flow from the excesses of democracy. The people are the dupes of pretended patriots." Mr. Randolph, the author of the Virginia plan, observed that the general object of the Constitution was to provide a cure for the evils under which the United States laboured; that in tracing these evils to their origin every man had found it in the tribulation and follies of democracy; that some check, therefore, was to be sought for against this tendency of our Government. Alexander Hamilton remarked, on June 18, that-- "the members most tenacious of republicanism were as loud as any in declaiming against the evils of democracy." He added: "Give all the power to the many and they will oppress the few. Give all the power to the few and they will oppress the many. Both ought, therefore, to have the power that each may defend itself against the other." Perhaps the attitude of the members is thus best expressed by James Madison, in the 10th of the Federalist papers: "A pure democracy, by which I mean a State consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. Such democracies have ever been spectacles of turbulence and contention, and have often been found incompatible with the personal security and rights of property, and have generally been as short in their lives as they have been violent in their deaths." Undoubtedly, the framers of the Constitution in thus limiting popular rule did not take sufficient account of the genius of an English-speaking people. A few of their number recognized this. Franklin, a self-made man, believed in democracy and doubted the efficacy of the Constitution unless it was, like a pyramid, broad-based upon the will of the people. Colonel Mason, of Virginia, who was also of the Jeffersonian school of political philosophy, said: "Notwithstanding the oppression and injustice experienced among us from democracy, the genius of the people is in favour of it, and the genius of the people must be consulted." In this they were true prophets, for the American people have refused to limit democracy as narrowly and rigidly as the framers of the Constitution clearly intended. The most notable illustration of this is the selection of the President. It was never contemplated that the people should directly select the President, but that a chosen body of electors should, with careful deliberation, make this momentous choice. While, in form, the system persists to this day, from the very beginning the electors simply vote as the people who select them desire. It should here be noted that Thomas Jefferson, the great Democrat and draftsman of the Declaration of Independence, was not a member of the convention. During its sessions he was in France. He was instrumental in securing the first ten Amendments and the subsequent adaptation of the Constitution to meet the democratic instincts of the American people is largely due to his great leadership. Moreover, the spirit of representative government has greatly changed since the Constitution was adopted. The ideal of the earlier time was that so nobly expressed by Edmund Burke in his address to the electors of Bristol, for the framers believed that a representative held a judicial position of the most sacred character, and that he should vote as his judgment and conscience dictated without respect to the wishes of his constituents. To-day, and notably in the last half century, the contrary belief, due largely to Jefferson's political ideals, has so influenced American politics that the representatives of the people, either in the legislature or the executive departments of the government, are considered by the masses as only the mouthpieces of the people who select them, and to ignore their wishes is regarded as virtually a betrayal of a trust and the negation of democracy. For this change in attitude there has been much justification, for in my country, as elsewhere, the people do not always select their best men as representatives, and, with the imperfections of human nature, there has been so much of ignorance and, at times, venality, that the instinct of the people is to take the conduct of affairs into their own hands. On the other hand, this change of attitude has led, in many instances, to government by organized minorities, for, with the division of the masses into political parties, it is easy for an organized minority to hold the balance of power, and thus impress its will upon majorities. Time may yet vindicate the theory of the framers that the limit of democracy is the selection of true and tried representatives. 2. _The second and most novel principle of the Constitution is its dual form of Government._ This did constitute a unique contribution to the science of politics. This was early recognized by de Tocqueville, one of the most acute students of the Constitution, who said that it was based "upon a wholly, novel theory, which may be considered a great discovery in modern political science." Previous to the Constitution it had not been thought possible to divide sovereignty, or at least to have two different sovereignties moving as planets in the same orbit. Therefore, all previous federated governments had been based upon the plan that a league could only effect its will through the constituent States and that the citizens in these States owed no direct allegiance to the league, but only to the States of which they were members. The Constitution, however, developed the idea of a dual citizenship. While the people remained citizens of their respective States in the sphere of government which was reserved to the States, yet they directly became citizens of the central government, and, as such, ceased to be citizens of the several States in the sphere of government delegated to the central power; and this allegiance was enforced by the direct action of the central government on the citizens as individuals. Thus has been developed one of the most intricately complex governmental systems in the world. At the time of the adoption of the Constitution this division of jurisdiction was quite feasible, for, geographically, the various States were widely separated, and the lack of economic contact made it easy for each government to function without serious conflict. The framers, however, did not sufficiently reckon with the mechanical changes in society that were then beginning. They did not anticipate, and could not have anticipated, the centripetal influences of steam and electricity which have woven the American people into an indissoluble unit for commercial and many other purposes. As a result many laws of the Federal Government, in their incidences in this complex age, directly impinge upon rights of the State governments, and _vice versa_, and the practical application of the Constitution has required a very subtle adaptation of a form of government which was enacted in a primitive age to a form of government of a complex age. Take, for example, the power over commerce. According to the Constitution, the Federal Government had plenary power over foreign commerce and commerce _between_ the States, but the power over commerce _within_ a State was reserved to State governments. This presupposed the power of Government to divide commerce into two water-tight compartments, or, at least, to regard the two spheres of power as parallel lines that would never meet; whereas with the coming of the railroad, steamship and the telegraph commerce has become so unified that the parallel lines have become lines of interlacing zigzags. To adapt the commerce clause of the Constitution to these changed conditions has required, in the highest degree, the constructive genius of the Supreme Court of the United States, and, in a series of very remarkable decisions, which are contained in 256 volumes of the official reports, that great tribunal has tried to draw a line between inter-State and domestic commerce as nearly to the original plans of the framers as it was possible; but obviously there has been so much adaptation to make this possible that if Washington, Franklin, Madison and Hamilton could revisit the nation they created they would not recognize their own handiwork. For the same reason, the dual system of government has been profoundly modified by the great elemental forces of our mechanical age, so that the scales, which try to hold in nice equipoise the Federal Government on the one hand and the States on the other, have been greatly disturbed. Originally, the States were the powerful political entities, and the central government a mere agent for certain specific purposes; but, in the development of the Constitution, the nation has naturally become of overshadowing importance, while the States have relatively steadily diminished in power and prestige. These inevitable tendencies in American politics are called "centralization," and while for nearly a century a great political party bitterly contested its steady progress, due to the centripetal influences above indicated, yet the contest was long since abandoned as a hopeless one, and the struggle to-day is rather to keep, so far as possible, the inevitable tendency measurably in check. Nevertheless, it would be erroneous to suggest that the dual system of government is a failure. It still endures in providing a large measure of authority to the States in their purely domestic concerns, and, in a country that extends from the Atlantic to the Pacific, and from the Lakes to the Gulf, whose northern border is not very far from the Arctic Circle, and whose southern border is not many degrees from the Equator, there are such differences in the habits, conventions, and ideals of the people that without this dual form of government the Constitution would long since have broken down. It is not too much to say that the success with which the framers of the Constitution reconciled national supremacy and efficiency with local self-government is one of the great achievements in the history of mankind. 3. _The third principle was the guaranty of individual liberty through constitutional limitations._ This marked another great contribution of America to the science of government. In all previous government building, the State was regarded as a sovereign, which could grant to individuals or classes, out of its plenary power, certain privileges or exemptions, which were called "liberties." Thus the liberties which the barons wrung from King John at Runnymede were virtually exemptions from the power of government. Our fathers did not believe in the sovereignty of the State in the sense of absolute power, nor did they believe in the sovereignty of the people in that sense. The word "sovereignty" will not be found in the Constitution or the Declaration of Independence. They believed that each individual, as a responsible moral being, had certain "inalienable rights" which neither the State nor the people could rightfully take from him. This conception of individualism, enforced in courts of law against executives and legislatures, was wholly new and is the distinguishing characteristic of American constitutionalism. As to such reserved rights, guaranteed by Constitutional limitations, and largely by the first ten amendments to the Constitution, a man, by virtue of his inherent and God-given dignity as a human soul, has rights, such as freedom of the Press, liberty of speech, property rights, and religious freedom, which even one hundred millions of people cannot rightfully take from him, without amending the Constitution. The framers did not believe that the oil of anointing that was supposed to sanctify the monarch and give him infallibility had fallen upon the "multitudinous tongue" of the people to give it either infallibility or omnipotence. They believed in individualism. They were animated by a sleepless jealousy of governmental power. They believed that the greater such power, the greater the danger of its abuse. They felt that the individual could generally best work out his own salvation, and that his constant prayer to Government was that of Diogenes to Alexander: "Keep out of my sunlight." The worth and dignity of the human soul, the free competition of man and man, the nobility of labour, the right to work, free from the tyranny of state or class, this was their gospel. Socialism was to them abhorrent. This theory of government gave a new dignity to manhood. It said to the State: "There is a limit to your power. Thus far and no further, and here shall thy proud waves be stayed." 4. _Closely allied to this doctrine of limited governmental powers, even by a majority, is the fourth principle of an independent judiciary_. It is the balance wheel of the Constitution, and to function it must be beyond the possibility of attack and destruction. My country was founded upon the rock of property rights and the sanctity of contracts. Both the nation and the several States are forbidden to impair the obligation of contracts, or take away life, liberty, or property "without due process of law." The guarantee is as old as Magna Charta; for "due process of law" is but a paraphrase of "the law of the land," without which no freeman could be deprived of his liberties or possessions. "Due process of law" means that there are certain fundamental principles of liberty, not defined or even enumerated in the Constitution, but having their sanction in the free and enlightened conscience of just men, and that no man can be deprived of life, liberty, or property, except in conformity with these fundamental decencies of liberty. To protect these even against the will of a majority, however large, the judiciary was given unprecedented powers. It threw about the individual the solemn circle of the law. It made the judiciary the final conscience of the nation. Your nation cherishes the same primal verities of liberty, but with you, the people in Parliament, is the final judge. We, however, are not content that a majority of the Legislature shall override inviolable individual rights, about which the judiciary is empowered to throw the solemn circle of the law. This august power has won the admiration of the world, and by many is regarded as a novel contribution to the science of government. The idea, however, was not wholly novel. As previously shown, four Chief Justices of England had declared that an Act of Parliament, if against common right and reason, could be treated as null and void; while in France the power of the judiciary to refuse efficacy to a law, unless sanctioned by the judiciary, had been the cause of a long struggle for at least three centuries between the French monarch and the courts of France. However, in England the doctrine of the common law yielded to the later doctrine of the omnipotence of Parliament, while in France the revisory power of the judiciary was terminated by the French Revolution. The United States, however, embodied it in its form of government and thus made the judiciary, and especially the Supreme Court, the balance wheel of the Constitution. Without such power the Constitution could never have lasted, for neither executive officers nor legislatures are good judges of the extent of their own powers. Nothing more strikingly shows the spirit of unity which the Constitution brought into being than the unbroken success with which the Supreme Court has discharged this difficult and most delicate duty. The President is the Commander-in-Chief of the Army and the Navy and can call them to his aid. The legislature has almost unlimited power through its control of the public purse. The States have their power reinforced by armed forces, and some of them are as great in population and resources as many of the nations of Europe. The Supreme Court, however, has only one officer to execute its decrees, called the United States Marshal; and yet, without sword or purse, and with only a high sheriff to enforce its mandates, when the Supreme Court says to a President or to a Congress or to the authorities of a great--and, in some respects, sovereign--State that they must do this or must refrain from doing that, the mandate is at once obeyed. Here, indeed, is the American ideal of "a government of laws and not of men" most strikingly realized; and if the American Constitution, as formulated and developed, had done nothing else than to establish in this manner the supremacy of law, even as against the overwhelming sentiment of the people, it would have justified the well-known encomium of Mr. Gladstone. It must be added, however, that in one respect this function of the judiciary has had an unfortunate effect in lessening rather than developing in the people the sense of constitutional morality. In your country the power of Parliament is omnipotent, and yet in its legislation it voluntarily observes these great fundamental decencies of liberty which in the American Constitution are protected by formal guarantees. This can only be true because either your representatives in Parliament have a deep sense of constitutional morality, or that the constituencies which select them have so much sense of constitutional justice that their representatives dare not disregard these fundamental decencies of liberty. In the United States, however, the confidence that the Supreme Court will itself protect these guaranties of liberty has led to a diminution of the sense of constitutional morality, both in the people and their representatives. It abates the vigilance which is said to be ever the price of liberty. Laws are passed which transgress the limitations of the Constitution without adequate discussion as to their unconstitutional character, for the reason that the determination of this fact is erroneously supposed to be the exclusive function of the judiciary. The judiciary, contrary to the common supposition, has no plenary power to nullify unconstitutional laws. It can only do so when there is an irreconcilable and indubitable repugnancy between a law and the Constitution; but obviously laws can be passed from motives that are anti-constitutional, and there is a wide sphere of political discretion in which many acts can be done which, while politically anti-constitutional, are not juridically unconstitutional. For this reason, the undue dependence upon the judiciary to nullify every law which either in form, necessary operation, or motive transgresses the Constitution has so far lessened the vigilance of the people to protect their own Constitution as to lead to its serious impairment. 5. _The fifth fundamental principle was a system of governmental checks and balances_. The founders of the Republic were not enamoured of power. As they viewed human history, the worst evils of government were due to excessive concentration of power, which like Othello's jealousy "makes the meat it feeds on." This system of checks and balances again illustrates that the Constitution is the great negation of unrestrained democracy. The framers believed that a people was best governed that was least governed. Therefore, their purpose was not so much to promote efficiency in legislation as to put a brake upon precipitate action. Time does not suffice to state the intricate system of checks and balances whereby the legislature acts as a check upon the executive and the executive upon the legislature, and the Supreme Court upon both. When the Republic was small, and its public affairs were few, this system of checks and balances worked admirably, but to-day, when the nation is one of the greatest in the world, and its public affairs are of the most important and complicated character, and often require speedy action, it may be questioned whether the system is not now an undue brake upon governmental efficiency, and does _not_ require some modification to ensure efficiency. Indeed, it is a serious question with many thoughtful Americans whether the growth of the United States has not put an excessive strain upon its governmental machinery. This system was in part due to the confident belief of the framers of the Constitution in the Montesquieu doctrine of the division of government into three independent departments--legislative, executive and judicial; but experience has shown how difficult it is to apply this doctrine in its literal rigidity. One result of the doctrine was the mistaken attempt to keep the legislative and the executive as far apart as possible. The Cabinet system of parliamentary government was not adopted. While the President can appear before Congress and express his views, his Cabinet is without such right. In practice, the gulf is bridged by constant contact between the Cabinet and the committees of Congress, but this does not wholly secure speedy and efficient co-operation between the two departments. As I speak, a movement is in progress, with the sanction of President Harding, to permit members of his Cabinet to appear in Congress and thus defend directly and in person the policies of the Executive. This separation of the two departments, which causes so much friction, has been emphasized by one feature of the Constitution which again marks its distrust of democracy, namely the fixed tenure of office. The Constitution did not intend that public officials should rise or fall with the fleeting caprices of a constituency. It preferred to give the President and the members of Congress a fixed term of office, and, however unpopular they might become temporarily, they should have the right and the opportunity to proceed even with unpopular policies, and thus challenge the final verdict of the people. If a parliamentary form of government, immediately responsive to current opinion as registered in elections, is the great desideratum, then the fixed tenure of offices is the vulnerable Achilles-heel of our form of government. In other countries the Executive cannot survive a vote of want of confidence by the legislature. In America, the President, who is merely the Executive of the legislative will, continues for his prescribed term, though he may have wholly lost the confidence of the representatives of the people in Congress. While this makes for stability in administration and keeps the ship of state on an even keel, yet it also leads to the fatalism of our democracy, and often the "native hue" of its resolution is thus "sicklied o'er with the pale cast of thought." Take a striking instance. I am confident that after the sinking of the _Lusitania_, the United States would have entered the world war, if President Wilson's tenure of power had then depended upon a vote of confidence. 6. _The sixth fundamental principle is the joint power of the Senate and the Executive over the foreign relations of the Government_. I need not dwell at length upon this unique feature of our constitutional system, for since the Versailles Treaty, the world has become well acquainted with our peculiar system under which treaties are made and war is declared or terminated. Nothing, excepting the principle of local rule, was of deeper concern to the framers of the Constitution. When it was framed, it was the accepted principle of all other nations that the control of the foreign relations of the Government was the exclusive prerogative of the Executive. In your country the only limitation upon that power was the control of Parliament over the purse of the nation, and some of the great struggles in your history related to the attempt of the Crown to exact money to carry on the wars without a Parliament grant. The framers were unwilling to lodge any such power in the Executive, however great his powers in other respects. This was primarily due to the conception of the States that then prevailed. While they had created a central government for certain specified purposes, they yet regarded themselves as sovereign nations, and their representatives in the Senate were, in a sense, their ambassadors. They were as little inclined to permit the President of the United States to make treaties or declare war at will in their behalf as the European nations would be to-day to vest a similar authority in the League of Nations. It was, therefore, first proposed that the power to make treaties and appoint diplomatic representatives should be vested exclusively in the Senate, but as that body was not always in session, this plan was so far modified as to give the President, who is always acting, the power to _negotiate_ treaties "with the advice and consent of the Senate." As to making war, the framers were not willing to entrust the power even to the President and the Senators, and it was therefore expressly provided that only Congress could take this momentous step. Here, again, the theory of the Constitution was necessarily somewhat modified in practical administration, for under the power of nominating diplomatic representatives, negotiating treaties, and in general, of executing the laws of the nation, the principle was soon evolved that the conduct of foreign affairs was primarily the function of the President, with the limitation that the Senate must concur in diplomatic appointments and in the validity of treaties, and that only both Houses of Congress could jointly declare war. This cumbrous system necessarily required that the President in conducting the foreign relations of the Government should keep in touch with the Senate, and such was the accepted procedure throughout the history of the nation until President Wilson saw fit to ignore the Senate, even when the Senate had indicated its dissent in advance to some of his policies at the Versailles Conference. I suppose that since that conference no part of our constitutional system has caused more adverse comment in Europe than this system. It often handicaps the United States from taking a speedy and effectual part in international negotiations, although if the President and the Senate be in harmony and collaborate in this joint responsibility, there is no necessary reason why this should be so. I share the view of many Americans that this provision of the Constitution was wise and salutary, especially at this time, when the United States has taken such an important position in the councils of civilization. The President is a very powerful Executive, and his tenure, while short, is fixed. Generally he is elected by little more than a majority of the people, and sometimes through the curious workings of the electoral college system, he has been only the choice of a minority of the electorate. For these reasons, the framers of the Constitution were unwilling to vest in the President exclusively the immeasurable power of pledging the faith, man-power, and resources of the nation and of declaring war. The heterogeneous character of our population especially emphasizes the wisdom of this course, for it would be difficult, if not impossible, for an American President to make an offensive and defensive alliance with any nation or declare war against another nation without running counter to the racial interests and passions of a substantial part of the American nation. For better or worse, the United States has limited, but not destroyed, as the world war showed, its freedom to antagonize powerful nations from whose people it has drawn large numbers of its own citizenship. The domestic harmony of the nation requires that before the United States assumes treaty obligations or makes war such policy shall represent the largely preponderating sentiment of its people, and nothing could more effectually secure this end than to require the President, before making a treaty, to secure the assent of two-thirds of the Senate and a majority of both Houses of Congress before making war. While this may lead, as it has in recent years, to temporary and regrettable embarrassments, yet in the long run, it is not only better for the United States, but it is even to the best interests of other nations, for in this way they are safeguarded against the possible action of an Executive with whom racial instincts might still be very influential. In your country, where the Government of the day is subject to immediate dismissal for want of confidence, such power over foreign relations can be safely entrusted to a few men, but in the United States, with its fixed tenures of office, a President could pledge the faith and involve his nation in war against the interests and will of the people. Suppose the President had unlimited power over our foreign relations and that within the next ten years an American, whose parents were born in any European nation, was elected on purely domestic issues, he could, with his assured four years of power, bring about a new alignment of nations and shake the political equilibrium of the world. The Constitution wisely refused to grant such a power. Hence the provision for the concurrence of the legislative representatives of the nation. At all events, it constitutes a system which, as the last presidential election showed, the American people will not willingly forgo. It is true that this system makes it difficult for the United States to participate effectively in the main purpose of the League of Nations to enforce peace by joint action at Geneva, but to ask the United States to surrender a vital part of its constitutional system, upon which its domestic peace so largely depends, in order to promote the League, seems to me as unreasonable as it would be to ask your country to abolish the Crown, to which it is sincerely attached as a vital part of its system, as a contribution towards international co-operation. You would not surrender such an integral part of your system, and therefore it is not reasonable to expect a similar sacrifice on our part, even though the meritorious purposes of the League be freely recognized. I have thus summarized briefly and most inadequately some of the essential principles of the Constitution. I have only been able to suggest very impressionistically what they are and the lessons to be drawn from them. If I were able to deliver a dozen addresses on the subject in this historic Hall and with this indulgent audience I would not scratch even the surface. To understand the Constitution of the United States you must not only read the text but the thousands of opinions rendered in the last 130 years by the Supreme Court in its great task of interpreting this wonderful document. Few documents have been the subject of more extended commentaries. The four thousand words have been meticulously examined through intellectual microscopes in judicial opinions, textbooks, and other commentaries which are as "thick as autumnal leaves that strow the brooks in Vallombrosa." One can say of this document as Dr. Furness, in his variorum edition of _Hamlet_, says of the words of that character: "No words by him let fall, no syllable by him uttered, but has been caught up and pondered, as no words except those of Holy Writ." But what of its future and how long will the Constitution wholly resist the washing of time and circumstance? Lord Macaulay once ventured the prediction that the Constitution would prove unworkable as soon as there were no longer large areas of undeveloped land and when the United States became a nation of great cities. That period of development has arrived. In 1880 only 15 per cent. of the American population lived in the cities and the remainder were still on the farms. To-day over 52 per cent, are crowded in one hundred great cities. Lord Macaulay added: "I believe America's fate is only deferred by physical causes. Institutions purely democratic will sooner or later destroy liberty or civilization, or both.... The American Constitution is all sail and no anchor." In this last commentary Lord Macaulay was clearly mistaken. As I have shown, the Constitution is not "purely democratic." It is amazing that so great a mind should have so little understood that more than any other Constitution, that of America imposes powerful restraints on democracy. The experience of a century and a quarter has shown that while the anchor may at times drag, yet it measurably holds the ship of state to its ancient moorings. The American Constitution still remains in its essential principles and still enjoys not only the confidence but the affection of the great and varied people whom it rules. To the latter this remarkable achievement must be attributed rather than to any inherent strength in parchment or red seals, for in a democracy the living soul of any Constitution must be such belief of the people in its wisdom and justice. If it should perish to-morrow, it would yet have enjoyed a life and growth of which any nation or age might be justly proud. Moreover, it could claim with truth, if it finally perished, that it had been subjected to conditions for which it was never intended and that some of its essential principles had been ignored. The Constitution is something more than a written formula of government--it is a great spirit. It is a high and noble assertion, and, indeed, vindication, of the morality of government. It "renders unto Caesar [the political state] the things that are Caesar's," but in safeguarding the fundamental moral rights of the people, it "renders unto God the things that are God's." In concluding, I cannot refrain from again reminding you that this consummate work of statecraft was the work of the English-speaking race, and that your people can therefore justly share in the pride which it awakens. It is not only one of the great achievements of that _gens aeterna_, but also one of the great monuments of human progress. It illustrates the possibilities of true democracy in its best estate. When the moral anarchy out of which it was born is called to mind, it can be truly said that while "sown in weakness, it was raised in power." To the succeeding ages, it will be a flaming beacon, and everywhere men, who are confronted with the acute problems of this complex age, can take encouragement from the fact that a small and weak people, when confronted with similar problems, had the strength and will to impose restraint upon themselves by peacefully proclaiming in the simple words of the noble preamble to the Constitution: "We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Note the words "ordain and establish." They imply perpetuity. They make no provision for the secession of any State, even if it deems itself aggrieved by federal action. And yet the right to secede was urged for many years, but Lincoln completed the work of Washington, Franklin, Madison and Hamilton by establishing that "a government for the people, by the people and of the people should not perish from the earth." _IV. The Revolt Against Authority_ "Where there is no vision, the people perish: but he that keepeth the law, happy is he." PROVERBS xxix. 18. One of the most quoted--and also mis-quoted--proverbs of the wise Solomon says, as translated in the authorized version: "Where there is no vision, the people perish." What Solomon actually said was: "Where there is no vision, the people _cast off restraint_." The translator thus confused an effect with a cause. What was the vision to which the Wise Man referred? The rest of the proverb, which is rarely quoted, explains: "Where there is no vision, the people cast off restraint: _but he that keepeth the law, happy is he_." The vision, then, is the authority of law, and Solomon's warning is that to which the great and noble founder of Pennsylvania, William Penn, many centuries later gave utterance, when he said: "That government is free to the people under it, where the laws rule and the people are a party to those laws; and all the rest is tyranny, oligarchy and confusion." It is my present purpose to discuss the moral psychology of the present revolt against the spirit of authority. Too little consideration has been paid by the legal profession to questions of moral psychology. These have been left to metaphysicians and ecclesiastics, and yet--to paraphrase the saying of the Master--"the laws were made for man and not man for the laws," and if the science of the law ignores the study of human nature and attempts to conform man to the laws, rather than the laws to man, then its development is a very partial and imperfect one. Let me first be sure of my premises. Is there in this day and generation a spirit of lawlessness greater or different than that that has always characterized human society? Such spirit of revolt against authority has always existed, even when the penalty of death was visited upon nearly all offences against life and property. Blackstone tells us (Book IV, Chap. I) that in the eighteenth century it was a capital offence to cut down a cherry tree in an orchard--a drastic penalty which should increase our admiration for George Washington's courage and veracity. We are apt to see the past in a golden haze, which obscures our vision. Thus, we think of William Penn's "holy experiment" on the banks of the Delaware as the realization of Sir Thomas More's dream of Utopia; and yet Pennsylvania was somewhat intemperately called in 1698 "the greatest refuge for pirates and rogues in America," and Penn himself wrote, about that time, that he had heard of no place which was "more overrun with wickedness" than his City of Brotherly Love, where things were so "openly committed in defiance of law and virtue--facts so foul that I am forbid by common modesty to relate them." Conceding that lawlessness is not a novel phenomenon, is not the present time characterized by an exceptional revolt against the authority of law? The statistics of our criminal courts show in recent years an unprecedented growth in crimes. Thus, in the federal courts, pending criminal indictments have increased from 9503 in the year 1912 to over 70,000 in the year 1921. While this abnormal increase is, in part, due to sumptuary legislation--for approximately 30,000 cases now pending arise under the prohibition statutes--yet, eliminating these, there yet remains an increase in nine years of over 400 per cent, in the comparatively narrow sphere of the federal criminal jurisdiction. I have been unable to get the data from the State Courts; but the growth of crimes can be measured by a few illustrative statistics. Thus, the losses from burglaries which have been repaid by casualty companies have grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and, in a like period, embezzlements have increased five-fold. It is notorious that the thefts from the mails and express companies and other carriers have grown to enormous proportions. The hold-up of railroad trains is now of frequent occurrence, and is not confined to the unsettled sections of the country. Not only in the United States, but even in Europe, such crimes of violence are of increasing frequency, and a recent dispatch from Berne, under date of August 7, 1921, stated that the famous International Expresses of Europe were now run under a military guard. The streets of our cities, once reasonably secure from crimes of violence, have now become the field of operations for the foot-pad and highwayman. The days of Dick Turpin and Jack Sheppard have returned, with this serious difference--that the Turpins and Sheppards of our day are not dependent upon the horse, but have the powerful automobile to facilitate their crimes and make sure their escape. Thus in Chicago alone, 5000 automobiles were stolen in a single year. Once murder was an infrequent and abnormal crime. To-day in our large cities it is of almost daily occurrence. In New York, in 1917, there were 236 murders and only 67 convictions; in 1918, 221, and 77 convictions. In Chicago, in 1919, there were 336, and 44 convictions. When the crime wave was at its height a year ago, the police authorities in more than one American city confessed their impotence to impose effective restraints. Life and property had seemingly become almost as insecure as during the Middle Ages.[3] [Footnote 3: The reader will bear in mind that these words were spoken in August 1921. Unquestionably, the situation has greatly improved during the present year(1922).] As to the subtler and more insidious crimes against the political state, it is enough to say that graft has become a science in city, state and nation. Losses by such misapplication of public funds--piled Pelion on Ossa--no longer run in the millions but the hundreds of millions. Our city governments are, in many instances, foul cancers on the body politic; and for us to boast of having solved the problem of local self-government is as fatuous as for a strong man to exult in his health when his body is covered with running sores. It has been estimated that the annual profits from violations of the prohibition laws have reached $300,000,000. Men who thus violate these laws for sordid gain are not likely to obey other laws, and the respect for law among all classes steadily diminishes as our people become familiar with, and tolerant to, wholesale criminality. Whether the moral and economic results of Prohibition overbalance this rising wave of crime, time will tell. _In limine_, let us note the significant fact that this spirit of revolt against authority is not confined to the political state, and therefore its causes lie beyond that sphere of human action. Human life is governed by all manner of man-made laws--laws of art, of social intercourse, of literature, music, business--all evolved by custom and imposed by the collective will of society. Here we find the same revolt against tradition and authority. In music, its fundamental canons have been thrown aside and discord has been substituted for harmony as its ideal. Its culmination--jazz--is a musical crime. If the forms of dancing and music are symptomatic of an age, what shall be said of the universal craze to indulge in crude and clumsy dancing to the vile discords of so-called "jazz" music? The cry of the time is: "On with the dance, let joy be" unrefined. In the plastic arts, the laws of form and the criteria of beauty have been swept aside by the futurists, cubists, vorticists, tactilists, and other aesthetic Bolsheviki. In poetry, where beauty of rhythm, melody of sound and nobility of thought were once regarded as the true tests, we now have in freak forms of poetry the exaltation of the grotesque and brutal. Hundreds of poets are feebly echoing the "barbaric yawp" of Walt Whitman, without the redeeming merit of his occasional sublimity of thought. In commerce, the revolt is against the purity of standards and the integrity of business morals. Who can question that this is pre-eminently the age of the sham and the counterfeit? Science is prostituted to deceive the public by cloaking the increasing deterioration in quality of merchandise. The blatant medium of advertising has become so mendacious as to defeat its own purpose. In the recent deflation in commodity values, there was widespread "welching" among business men who had theretofore been classed as reputable. Of course, I recognize that a far greater number kept their contracts, even when it brought them to the verge of ruin. But when in the history of American business was there such a volume of broken faith as in the drastic deflation of 1920? In the greater sphere of social life, we find the same revolt against the institutions which have the sanction of the past. Social laws, which mark the decent restraints of print, speech and dress, have in recent decades been increasingly disregarded. The very foundations of the great and primitive institutions of mankind--like the family, the Church, and the State--have been shaken. Nature itself is defied. Thus, the fundamental difference of sex is disregarded by social and political movements which ignore the permanent differentiation of social function ordained by Nature. All these are but illustrations of the general revolt against the authority of the past--a revolt that can be measured by the change in the fundamental presumption of men with respect to the value of human experience. In all former ages, all that was in the past was presumptively true, and the burden was upon him who sought to change it. To-day, the human mind apparently regards the lessons of the past as presumptively false--and the burden is upon him who seeks to invoke them. Lest I be accused of undue pessimism, let me cite as a witness one who, of all men, is probably best equipped to express an opinion upon the moral state of the world. I refer to the venerable head of that religious organization[4] which, with its trained representatives in every part of the world, is probably better informed as to its spiritual state than any other organization. [Footnote 4: Reference is to the late Pope Benedict.] Speaking last Christmas Eve, in an address to the College of Cardinals, the venerable Pontiff gave expression to an estimate of present conditions which should have attracted far greater attention than it apparently did. The Pope said that five plagues were now afflicting humanity. The first was the unprecedented challenge to authority. The second, an equally unprecedented hatred between man and man. The third was the abnormal aversion to work. The fourth, the excessive thirst for pleasure as the great aim of life. The fifth, a gross materialism which denied the reality of the spiritual in human life. The accuracy of this indictment will commend itself to men who like myself are not of Pope Benedict's communion. I trust that I have already shown that the challenge to authority is universal and is not confined to that of the political state. Even in the narrower confine of the latter, the fires of revolution are either violently burning, or, at least, smouldering. Two of the oldest empires in the world, which, together, have more than half of its population (China and Russia) are in a welter of anarchy; while many lesser nations are in a stage of submerged revolt. If the revolt were confined to autocratic governments, we might see in it merely a reaction against tyranny; but even in the most stable of democracies and among the most enlightened peoples, the underground rumblings of revolution may be heard. The Government of Italy has been preserved from overthrow, not alone by its constituted authorities, but by a band of resolute men, called the "fascisti," who have taken the law into their own hands, as did the vigilance committees in western mining camps, to put down worse disorders. Even England, the mother of democracies, and the most stable of all Governments in the maintenance of law, has been shaken to its very foundations in the last three years, when powerful groups of men attempted to seize the State by the throat and compel submission to their demands by threatening to starve the community. This would be serious enough if it were only the world-old struggle between capital and labour and had only involved the conditions of manual toil. But the insurrection against the political state in England was more political than it was economic. It marked, on the part of millions of men, a portentous decay of belief in representative government and its chosen organ--the ballot box. Great and powerful groups had suddenly discovered--and it may be the most portentous political discovery of the twentieth century--that the power involved in their control over the necessaries of life, as compared with the power of the voting franchise, was as a forty-two centimetre cannon to the bow and arrow. The end sought to be attained, namely the nationalization of the basic industries, and even the control of the foreign policy of Great Britain, vindicated the truth of the British Prime Minister's statement that these great strikes involved something more than a mere struggle over the conditions of labour, and that they were essentially seditious attempts against the life of the State.[5] [Footnote 5: I am here speaking of the conditions of 1920. I appreciate the great improvement, which seems to me to justify the Lincoln-like patience of Lloyd George.] Nor were they altogether unsuccessful; for, when the armies of Lenin and Trotsky were at the gates of Warsaw, in the summer of 1920, the attempts of the Governments of England and Belgium to afford assistance to the embattled Poles were paralysed by the labour groups of both countries, who threatened a general strike if those two nations joined with France in aiding Poland to resist a possibly greater menace to Western civilization than has occurred since Attila and his Huns stood on the banks of the Marne. Of greater significance to the welfare of civilization is the complete subversion during the world war of nearly all the international laws which had been slowly built up in a thousand years. These principles, as codified by the two Hague Conventions, were immediately swept aside in the fierce struggle for existence, and civilized man, with his liquid fire and poison gas and his deliberate; attacks upon undefended cities and their women and children, waged war with the unrelenting ferocity of primitive times. Surely, this fierce war of extermination, which caused the loss of three hundred billion dollars in property and thirty millions of human lives, did mark for the time being the "twilight of civilization." The hands on the dial of time had been put back--temporarily, let us hope and pray--a thousand years. Nor will many question the accuracy of the second count in Pope Benedict's indictment. The war to end war only ended in unprecedented hatred between nation and nation, class and class, and man and man. Victors and vanquished are involved in a common ruin. And if in this deluge of blood, which has submerged the world, there is a Mount Ararat, upon which the ark of a truer and better peace can find refuge, it has not yet appeared above the troubled surface of the waters. Still less can one question the closely related third and fourth counts in Pope Benedict's indictment, namely the unprecedented aversion to work, when work is most needed to reconstruct the foundations of prosperity, or the excessive thirst for pleasure which preceded, accompanied, and now has followed the most terrible tragedy in the annals of mankind. The true spirit of work seems to have vanished from millions of men; that spirit of which Shakespeare made his Orlando speak when he said of his true servant, Adam: "O good old man! how well in thee appears The constant service of the antique world. When service sweat for duty, not for meed!" The _moral_ of our industrial civilization has been shattered. Work for work's sake, as the most glorious privilege of human faculties, has gone, both as an ideal and as a potent spirit. The conception of work as a degrading servitude, to be done with reluctance and grudging inefficiency, seems to be the ideal of millions of men of all classes and in all countries. The spirit of work is of more than sentimental importance. It may be said of it, as Hamlet says of death: "The readiness is all." All of us are conscious of the fact that, given a love of work, and the capacity for it seems almost illimitable--as witness Napoleon, with his thousand-man power, or Shakespeare, who in twenty years could write more than twenty masterpieces. On the other hand, given an aversion to work, and the less a man does the less he wants to do, or is seemingly capable of doing. The great evil of the world to-day is this aversion to work. As the mechanical era diminished the element of physical exertion in work, we would have supposed that man would have sought expression for his physical faculties in other ways. On the contrary, the whole history of the mechanical era is a persistent struggle for more pay and less work, and to-day it has culminated in world-wide ruin; for there is not a nation in civilization which is not now in the throes of economic distress, and many of them are on the verge of ruin. In my judgment, the economic catastrophe of 1921 is far greater than the politico-military catastrophe of 1914. The results of these two tendencies, measured in the statistics of productive industry, are literally appalling. Thus, in 1920, Italy, according to statistics of her Minister of Labour, lost 55,000,000 days of work because of strikes alone. From July to September, many great factories were in the hands of revolutionary communists. A full third of these strikes had for their end political and not economic purposes. In Germany, the progressive revolt of labour against work is thus measured by competent authority: There were lost in strikes in 1917, 900,000 working days; in 1918, 4,900,000, and, in 1919, 46,600,000. Even in our own favoured land, the same phenomena are observable. In the State of New York alone for 1920, there was a loss due to strikes of over 10,000,000 working days. In all countries the losses by such cessations from labour are little as compared with those due to the spirit which in England is called "ca'-canny" or the shirking of performance of work, and of sabotage, which means the deliberate destruction of machinery in operation. Everywhere the phenomenon has been observed that, with the highest wages known in the history of modern times, there has been an unmistakable lessening of efficiency, and that with an increase in the number of workers, there has been a decrease in output. Thus, the transportation companies in the United States have seriously made a claim against the United States Government for damages to their roads, amounting to $750,000,000, claimed to be due to the inefficiency of labour during the period of governmental operation. Accompanying this indisposition to work efficiently has been a mad desire for pleasure, such as, if it existed in like measure in preceding ages, has not been seen within the memory of living man. Man has danced upon the verge of a social abyss, and, as previously suggested, the dancing has, both in form and in accompanying music, lost its former grace and reverted to the primitive forms of crude vulgarity. which gives the spectators the maximum of emotional expression with the minimum of mental effort, had not been eclipsed by the splendour of a Dempsey or a Carpentier. Of the last count in Pope Benedict's indictment, I shall say but little. It is more appropriate for the members of that great and noble profession which is more intimately concerned with the spiritual advance of mankind. It is enough to say that, while the Church as an institution continues to exist, the belief in the supernatural and even in the spiritual has been supplanted in the souls of millions of men by a gross and debasing materialism. If my reader agrees with me in my premises then we are not likely to disagree in the conclusion that the causes of these grave symptoms are not ephemeral or superficial; but must have their origin in some deep-seated and world-wide change in human society. If there is to be a remedy, we must first diagnose this malady of the human soul. For example, let us not "lay the flattering unction to our souls" that this spirit is solely the reaction of the great war. The present weariness and lassitude of human spirit and the disappointment and disillusion as to the aftermath of the harvest of blood, may have aggravated, but they could not cause the symptoms of which I speak; for the very obvious reason that all these symptoms were in existence and apparent to a few discerning men for decades before the war. Indeed, it is possible that the world war, far from causing the _malaise_ of the age, was, in itself, but one of its many symptoms. Undoubtedly, there are many contributing causes which have swollen the turbid tide of this world-wide revolution against the spirit of authority. Thus, the multiplicity of laws does not tend to develop a law-abiding spirit. This fact has often been noted. Thus Napoleon, on the eve of the 18th Brumaire, complained that France, with a thousand folios of law, was a lawless nation. Unquestionably, the political state suffers in authority by the abuse of legislation, and especially by the appeal to law to curb evils that are best left to individual conscience. In this age of democracy, the average individual is too apt to recognize two constitutions--one, the constitution of the State, and the second, an unwritten constitution, to him of higher authority, under which he believes that no law is obligatory which he regards as in excess of the true powers of government. Of this latter spirit, the widespread violation of the prohibition law is a familiar illustration. A race of individualists obey reluctantly, when they obey at all, any laws which they regard as unreasonable or vexatious. Indeed, they are increasingly opposed to any law, which affects their selfish interests. Thus many good women are involuntary smugglers. They deny the authority of the state to impose a tax upon a Paquin gown. The law's delays and laxity in administration breed a spirit of contempt, and too often invite men to take the law into their own hands. These causes are so familiar that their statement is a commonplace. Proceeding to deeper and less recognized causes, some would attribute this spirit of lawlessness to the rampant individualism, which began in the eighteenth century, and which has steadily and naturally grown with the advance of democratic institutions. Undoubtedly, the excessive emphasis upon the rights of man, which marked the political upheaval of the close of the eighteenth and the beginning of the nineteenth century, has contributed to this malady of the age. Men talked, and still talk, loudly of their rights, but too rarely of their duties. And yet if we were to attribute the malady merely to excessive individualism, we would again err in mistaking a symptom for a cause. To diagnose truly this malady we must look to some cause that is coterminous in time with the disease itself and which has been operative throughout civilization. We must seek some widespread change in social conditions, for man's essential nature has changed but little, and the change must, therefore, be of environment. I know of but one such change that is sufficiently widespread and deep-seated to account adequately for this malady of our time. Beginning with the close of the eighteenth century, and continuing throughout the nineteenth, a prodigious transformation has taken place in the environment of man, which has done more to revolutionize the conditions of human life than all the changes that had taken place in the 500,000 preceding years which science has attributed to man's life on the planet. Up to the period of Watt's discovery of steam vapour as a motive power, these conditions, so far as the principal facilities of life, were substantially those of the civilization which developed eighty centuries ago on the banks of the Nile and later on the Euphrates. Man had indeed increased his conquest over Nature in later centuries by a few mechanical inventions, such as gunpowder, telescope, magnetic needle, printing-press, spinning jenny, and hand-loom, but the characteristic of all those inventions, with the exception of gunpowder, was that they still remained a subordinate auxiliary to the physical strength and mental skill of man. In other words, man still dominated the machine, and there was still full play for his physical and mental faculties. Moreover, all the inventions of preceding ages, from the first fashioning of the flint to the spinning-wheel and the hand-lever press, were all conquests of the tangible and visible forces of Nature. With Watt's utilization of steam vapour as a motive power, man suddenly passed into a new and portentous chapter of his varied history. Thenceforth, he was to multiply his powers a thousandfold by the utilization of the invisible powers of Nature--such as vapour and electricity. This prodigious change in his powers, and therefore his environment, has proceeded with ever-accelerating speed. Man has suddenly become the superman. Like the giants of the ancient fable, he has stormed the very ramparts of Divine power, or, like Prometheus, he has stolen fire of omnipotent forces from Heaven itself for his use. His voice can now reach from the Atlantic to the Pacific, and, taking wing in his aeroplane, he can fly in one swift flight from Nova Scotia to England, or he can leave Lausanne and, resting upon the icy summit of Mont Blanc--thus, like "the herald, Mercury, new-lighted on a heaven-kissing hill"--he can again plunge into the void, and thus outfly the eagles themselves. In thus acquiring from the forces of Nature almost illimitable power, he has minimized the necessity for his own physical exertion or even mental skill. The machine now not only acts for him, but too often _thinks_ for him. Is it surprising that so portentous a change should have fevered his brain and disturbed his mental equilibrium? A new ideal, which he proudly called "progress," obsessed him, the ideal of quantity and not quality. His practical religion became that of acceleration and facilitation--to do things more quickly and easily--and thus to minimize exertion became his great objective. Less and less he relied upon the initiative of his own brain and muscle, and more and more he put his faith in the power of machinery to relieve him of labour. The evil of our age is that its values are all false. It overrates speed, it underrates sureness; it overrates the new, it underrates the old; it overrates automatic efficiency, it underrates individual craftsmanship; it overrates rights, it underrates duties; it overrates political institutions, it underrates individual responsibility. We glory in the fact that we can talk a thousand miles, but we ignore the greater question, whether when we thus out-do Stentor, we have anything worth saying. We have now made the serene spaces of the upper Heavens our media to transmit market reports and sporting news, second-rate music and worse oratory and in the meantime the great masters of thought, Homer and Shakespeare, Bach and Beethoven remain unbidden on our library shelves. What a sordid Vanity Fair is our modern Civilization! This incalculable multiplication of power has intoxicated man. The lust has obsessed him, without regard to whether it be constructive or destructive. Quantity, not quality, becomes the great objective. Man consumes the treasures of the earth faster than he produces them, deforesting its surface and disembowelling its hidden wealth. As he feverishly multiplied the things he desired, even more feverishly he multiplied his wants. To gain these, man sought the congested centres of human life. While the world, as a whole, is not over-populated, the leading countries of civilization were subjected to this tremendous pressure. Europe, which, at the beginning of the nineteenth century, barely numbered 100,000,000 people, suddenly grew nearly five-fold. Millions left the farms to gather into the cities to exploit their new and seemingly easy conquest over Nature. In the United States, as recently as 1880, only 15 per cent. of the people were crowded in the cities, 85 per cent. remained upon the farms and still followed that occupation, which, of all occupations, still preserves, in its integrity, the dominance of human labour over the machine. To-day, 52 per cent. of the population is in the cities, and with many of them existence is both feverish and artificial. While they have employment, many of them do not themselves work, but spend their lives in watching machines work. The result has been a minute subdivision of labour that has denied to many workers the true significance and physical benefit of labour. The direct results of this excessive tendency to specialization, whereby not only the work but the worker becomes divided into mere fragments, are threefold. Hobson, in his work on John Ruskin, thus classifies them. In the first place, _narrowness_, due to the confinement to a single action in which the elements of human skill or strength are largely eliminated; secondly, _monotony_, in the assimilation of man to a machine, whereby seemingly the machine dominates man and not man the machine, and, thirdly, _irrationality_, in that work became dissociated in the mind of the worker with any complete or satisfying achievement. The worker does not see the fruit of his travail, and cannot therefore be truly satisfied. To spend one's life in opening a valve to make a part of a pin is, as Ruskin pointed out, demoralizing in its tendencies. The clerk who only operates an adding machine has little opportunity for self-expression. Thus, millions of men have lost both the opportunity for real physical exertion, the incentive to work in the joyous competition of skill, and finally the reward of work in the sense of achievement. More serious than this, however, has been the destructive effort of quantity, the great object of the mechanical age, at the expense of quality. Take, for example, the printing-press: No one can question the immense advantages which have flowed from the increased facility for transmitting ideas. But may it not be true that the thousandfold increase in such transmission by the rotary press has also tended to muddy the current thought of the time? True it is that the printing-press has piled up great treasures of human knowledge which make this age the richest in accessible information. I am not speaking of knowledge, but rather of the current thought of the living generation. I gravely question whether it has the same clarity as the brain of the generation which fashioned the Constitution of the United States. Our fathers could not talk over the telephone for three thousand miles, but have we surpassed them in thoughts of enduring value? Washington and Franklin could not travel sixty miles an hour in a railroad train, or twice that speed in an aeroplane, but does it follow that they did not travel to as good purpose as we, who scurry to and fro like the ants in a disordered ant-heap? Unquestionably, man of to-day has a thousand ideas suggested to him by the newspaper and the library where our ancestors had one; but have we the same spirit of calm inquiry and do we co-ordinate the facts we know as wisely as our ancestors did? Athens in the days of Pericles had but thirty thousand people and few mechanical inventions; but she produced philosophers, poets and artists, whose work after more than twenty centuries still remain the despair of the would-be imitators. Shakespeare had a theatre with the ground as its floor and the sky as its ceiling; but New York, which has fifty theatres and annually spends $100,000,000 in the box offices of its varied amusement resorts, has rarely in two centuries produced a play that has lived. To-day, man has a cinematographic brain. A thousand images are impressed daily upon the screen of his consciousness, but they are as fleeting as moving pictures in a cinema theatre. The American Press prints every year over 29,000,000,000 issues. No one can question its educational possibilities, for the best of all colleges is potentially the University of Gutenberg. If it printed only the truth, its value would be infinite; but who can say in what proportions of this vast volume of printed matter is the true and the false? The framers of the Constitution had few books and fewer newspapers. Their thoughts were few and simple, but what they lacked in quantity they made up in unsurpassed quality. Before the beginning of the present mechanical age, the current of living thought could be likened to a mountain stream, which though confined within narrow banks yet had waters of transparent clearness. May not the current thought of our time be compared with the mighty Mississippi in the period of a spring freshet? Its banks are wide and its current is swift, but the turbid stream that flows onward is one of muddy swirls and eddies and overflows its banks to their destruction. The great indictment, however, of the present age of mechanical power is that it has largely destroyed the spirit of work. The great enigma which it propounds to us, and which, like the riddle of the Sphinx, we will solve or be destroyed, is this: _Has the increase in the potential of human power, through thermodynamics, been accompanied by a corresponding increase in the potential of human character?_ To this life and death question, a great French philosopher, Le Bon, writing in 1910, replied that the one unmistakable symptom of human life was "the increasing deterioration in human character," and a great physicist has described the symptom as "the progressive enfeeblement of the human will." In a famous book, _Degeneration_, written at the close of the nineteenth century, Max Nordau, as a pathologist, explains this tendency by arguing that our complex civilization has placed too great a strain upon the limited nervous organization of man. A great financier, the elder J.P. Morgan, once said of an existing financial condition that it was suffering from "undigested securities," and, paraphrasing him, is it not possible that man is suffering from undigested achievements and that his salvation must lie in adaptation to a new environment, which, measured by any standard known to science, is a thousandfold greater in this year of grace than it was at the beginning of the nineteenth century? No one would be mad enough to urge such a retrogression as the abandonment of labour-saving machinery would involve. Indeed, it would be impossible; for, in speaking of its evils, I freely recognize that not only would civilization perish without its beneficent aid, but that every step forward in the history of man has been coincident with, and in large part attributable to, a new mechanical invention. But suppose the development of labour-saving machinery should reach a stage where all human labour was eliminated, what would be the effect on man? The answer is contained in an experiment which Sir John Lubbock made with a tribe of ants. Originally the most voracious and militant of their species, yet when denied the opportunity for exercise and freed from the necessity of foraging for their food, in three generations they became anaemic and perished. Take from man the opportunity of work and the sense of pride in achievement and you have taken from him the very life of his existence. Robert Burns could sing as he drove his ploughshare through the fields of Ayr. To-day millions who simply watch an automatic infallible machine, which requires neither strength nor skill, do not sing at their work but too many curse the fate, which has chained them, like Ixion, to a soulless machine. The evil is even greater. The specialization of our modern mechanical civilization has caused a submergence of the individual into the group or class. Man is fast ceasing to be the unit of human society. Self-governing groups are becoming the new units. This is true of all classes of men, the employer as well as the employee. The true justification for the American anti-monopoly statutes, including the Sherman anti-trust law, lies not so much in the realm of economics as in that of morals. With the submergence of the individual, whether he be capitalist or wage-earner, into a group, there has followed the dissipation of moral responsibility. A mass morality has been substituted for individual morality, and unfortunately, group morality generally intensifies the vices more than the virtues of man. Possibly, the greatest result of the mechanical age is this spirit of organization. Its merits are manifold and do not require statement; but they have blinded us to the demerits of excessive organization. We are now beginning to see--slowly, but surely--that a faculty of organization which, as such, submerged the spirit of individualism, is not an unmixed good. Indeed, the moral lesson of the tragedy of Germany is the demoralizing influence of organization carried to the _n_th power. No nation was ever more highly organized than this modern State. Physically, intellectually and spiritually it had become a highly developed machine. Its dominating mechanical spirit so submerged the individual that, in 1914, the paradox was observed of an enlightened nation that was seemingly destitute of a conscience. What was true of Germany, however, was true--although in lesser degree--of all civilized nations. In all of them, the individual had been submerged in group formations, and the effect upon the character of man has been destructive of his nobler self. This may explain the paradox of so-called "progress." It may be likened to a great wheel, which, from the increasing domination of mechanical forces, developed an ever-accelerating speed, until, by centrifugal action, it went off its bearings in 1914 and caused an unprecedented catastrophe. As man slowly pulls himself out of that gigantic wreck and recovers consciousness, he begins to realize that speed is not necessarily progress. Of all this, the nineteenth century, in its exultant pride in its conquest of the invisible forces, was almost blind. It not only accepted progress as an unmistakable fact--mistaking, however, acceleration and facilitation for progress--but in its mad folly believed in an immutable law of progress which, working with the blind forces of machinery, would propel man forward. A few men, however, standing on the mountain ranges of human observation, saw the future more clearly than did the mass. Emerson, Carlyle, Ruskin, Samuel Butler, and Max Nordau, in the nineteenth century, and, in our time, Ferrero, all pointed out the inevitable dangers of the excessive mechanization of human society. The prophecies were unhappily as little heeded as those of Cassandra. One can see the tragedy of the time, as a few saw it, in comparing the first _Locksley Hall_ of Alfred Tennyson, written in 1827, with its abiding faith in the "increasing purpose of the ages" and its roseate prophecies of the golden age, when the "war-drum would throb no longer and the battle flags be furled in the Parliament of Man and the Federation of the World," and the later _Locksley Hall_, written sixty years later, when the great spiritual poet of our time gave utterance to the dark pessimism which flooded his soul: "Gone the cry of 'Forward, Forward,' lost within a growing gloom; Lost, or only heard in silence from the silence of a tomb. Half the marvels of my morning, triumphs over time and space, Staled by frequence, shrunk by usage, into commonest commonplace! Evolution ever climbing after some ideal good, And Reversion ever dragging Evolution in the mud. Is it well that while we range with Science, glorying in the Time, City children soak and blacken soul and sense in city slime?" Am I unduly pessimistic? I fear that this is the case with most men who, like Dante, have crossed their fiftieth year and find themselves in a "dark and sombre wood." My reader will probably subject me to the additional reproach that I suggest no remedy. There are many palliatives for the evils which I have discussed. To rekindle in men the love of work for work's sake and the spirit of discipline, which the lost sense of human solidarity once inspired, would do much to solve the problem, for work is the greatest moral force in the world. But I must frankly add that I have neither the time nor the qualifications to discuss the solution of this grave problem. If we of this generation can only recognize that the evil exists, then the situation is not past remedy; for man has never yet found himself in a blind alley of negation. He is still "master of his soul and captain of his fate," and, to me, the most encouraging sign of the times is the persistent evidence of contemporary literature that thoughtful men now recognize that much of our boasted progress was as unreal as a rainbow. While the temper of the times seems for the moment pessimistic, it merely marks the recognition of man of an abyss whose existence he barely suspected but over which his indomitable courage will yet carry him. I have faith in the inextinguishable spark of the Divine, which is in the human soul and which our complex mechanical civilization has not extinguished. Of this, the world war was in itself a proof. All the horrible resources of mechanics and chemistry were utilized to coerce the human soul, and all proved ineffectual. Never did men rise to greater heights of self-sacrifice or show a greater fidelity "even unto death." Millions went to their graves, as to their beds, for an ideal; and when that is possible, this Pandora's box of modern civilization, which contained all imaginable evils, as well as benefits, also leaves hope behind. I am reminded of a remark that the great Roumanian statesman, Taku Jonescu, made during the Peace Conference at Paris. When asked his views as to the future of civilization, he replied: "Judged by the light of reason there is but little hope, but I have faith in man's inextinguishable impulse to live." Happily, that cannot be affected by any change in man's environment! For even when the cave-man retreated from the advance of the polar cap, which once covered Europe with Arctic desolation, he not only defied the elements but showed even then the love of the sublime by beautifying the walls of his icy prison with those mural decorations which were the beginning of art. Assuredly, the man of to-day, with the rich heritage of countless ages, can do no less. He has but to diagnose the evil and he will then, in some way, meet it. But what can man-made law do in this warfare against the blind forces of Nature? It is easy to exaggerate the value of all political institutions; for they are generally on the surface of human life and do not reach down to the deep under-currents of human nature. But the law can do something to protect the soul of man from destruction by the soulless machine. It can defend the spirit of individualism. It must champion the human soul in its God-given right to exercise freely the faculties of mind and body. We must defend the right to work against those who would either destroy or degrade it. We must defend the right of every man, not only to join with others in protecting his interests, whether he is a brain worker or a hand worker--for without the right of combination the individual would often be the victim of giant forces--but we must vindicate the equal right of an individual, if he so wills, to depend upon his own strength. The tendency of group morality to standardize man--and thus reduce all men to the dead level of an average mediocrity--is one that the law should combat. Its protection should be given to those of superior skill and diligence, who ask the due rewards of such superiority. Any other course, to use the fine phrase of Thomas Jefferson in his first inaugural, is to "take from the mouth of labour the bread it has earned." Of this spirit one of the noblest expressions is the Constitution of the United States. That Magna Charta has not wholly escaped the destructive tendencies of a mechanical age. It was framed at the very end of the pastoral-agricultural age and at a time when the spirit of individualism was in full flower. The hardy pioneers who, with their axes, made straight the pathway of an advancing civilization, were sturdy men who need not be undervalued to us of the mechanical age. The "prairie schooner," which met the elemental forces of Nature with the proud challenge: "Pike's Peak or bust," produced as fine a type of manhood as the age which travels either in Mr. Ford's "fliver" or the more luxurious Rolls-Royce. The Constitution was framed in the period that marked the passing of the primitive age and the dawn of the day of the machine. Watt had recently discovered the potency of steam vapour as a motive power; but its only use at first was for pumping water out of the mines. When the framers of the Constitution met in high convention in Philadelphia in the summer of 1787, a Connecticut Yankee, John Fitch, was then also working in Philadelphia upon his steamboat; but twenty years were to pass before the prow of the _Clermont_ was to part the waters of the Hudson, and nearly a half century before transportation was to be revolutionized by the utilization of Watt's invention in the locomotive. Of the wonders of the steamship, the railroad, the telegraphic cable, the wireless, the gasoline engine, and a thousand other mechanical miracles, the framers of the American Constitution did not even dream. The greatest and noblest purpose of the Constitution was not alone to hold in nicest equipose the relative powers of the nation and the States, but also to maintain in the scales of justice a true equilibrium between the rights of government and the rights of an individual. It did not believe that the State was omnipotent or infallible, and yet it proclaimed its authority within wise and just limits. It defended the integrity of the human soul. In other governments, these fundamental decencies of liberty rest upon the conscience of the legislature. Under the American Constitution, they are part of the fundamental law, and, as such, enforceable by judges sworn to defend the integrity of the individual as fully as the integrity of the State. When did a nobler "vision" inspire men in the political annals of mankind? Without that vision to restrain each succeeding generation of Americans from the tempting excesses of political power, the American Commonwealth, with its great heterogeneous democracy, would probably perish. That vision still remains as an ideal with the American people and still leads them to ever-higher achievements, for in all the mad changes of a frenzied hour, they have not yet lost faith in or love for the Constitution of the Fathers! That vision will remain with them as long, and no longer, as there is in their hearts a conscious and willing acquiescence in its wisdom and justice. Obviously, it can have no inherent vigour to perpetuate itself. If it ceases to be of the spirit of the people, then the yellow parchment whereon it is inscribed can avail nothing. When that parchment was last taken from the safe in the State Department, the ink in which it had been engrossed nearly 134 years ago was found to have faded. All who believe in constitutional government must hope that this is not a portentous symbol. The American people must write the compact, not with ink upon parchment, but with "letters of living light"--to use Webster's phrase--upon their hearts. Again the solemn warning of the wise man of old recurs to us: "Where there is no vision, the people perish; but he that keepeth the law, happy is he." 
10401	----	[Illustration: _Daniel Drayton_] PERSONAL MEMOIR Of DANIEL DRAYTON, For Four Years And Four Months A PRISONER (FOR CHARITY'S SAKE) IN WASHINGTON JAIL Including A Narrative Of The VOYAGE AND CAPTURE OF THE SCHOONER PEARL. We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, _liberty_, and the pursuit of happiness. DECLARATION OF INDEPENDENCE. 1855. Entered according to Act of Congress, In the year 1853, by DANIEL DRAYTON, In the Clerk's Office of the District Court of the District of Massachusetts ADVERTISEMENT. Considering the large share of the public attention which the case of the schooner Pearl attracted at the time of its occurrence, perhaps the following narrative of its origin, and of its consequences to himself, by the principal actor in it, may not be without interest. It is proper to state that a large share of the profits of the sale are secured to Captain Drayton, the state of whose health incapacitates him from any laborious employment. MEMOIR. I was born in the year 1802, in Cumberland County, Downs Township, in the State of New Jersey, on the shores of Nantuxet Creek, not far from Delaware Bay, into which that creek flows. My father was a farmer,--not a very profitable occupation in that barren part of the country. My mother was a widow at the time of her marriage with my father, having three children by a former husband. By my father she had six more, of whom I was the youngest but one. She was a woman of strong mind and marked character, a zealous member of the Methodist church; and, although I had the misfortune to lose her at an early age, her instructions--though the effect was not apparent at the moment--made a deep impression on my youthful mind, and no doubt had a very sensible influence over my future life. Just previous to, or during the war with Great Britain, my father removed still nearer to the shore of the bay, and the sight of the vessels passing up and down inspired me with a desire to follow the life of a waterman; but it was some years before I was able to gratify this wish. I well remember the alarm created in our neighborhood by the incursions of the British vessels up the bay during the war, and that, at these times, the women of the neighborhood used to collect at our house, as if looking up to my mother for counsel and guidance. I was only twelve years old when this good mother died; but, so strong was the impression which she left upon my memory, that, amid the struggles and dangers and cares of my subsequent life, I have seldom closed my eyes to sleep without some thought or image of her. As my father soon after married another widow, with four small children, it became necessary to make room in the house for their accommodation; and, with a younger brother of mine, I was bound out an apprentice in a cotton and woollen factory at a place called Cedarville. Manufactures were just then beginning to be introduced into the country, and great hopes were entertained of them as a profitable business. My employer,--or bos, as we called him,--had formerly been a schoolmaster, and he did not wholly neglect our instructions in other things besides cotton-spinning. Of this I stood greatly in need; for there were no public schools in the neighborhood in which I was born, and my parents had too many children to feed and clothe to be able to pay much for schooling. We were required on Sundays, by our employer, to learn two lessons, one in the forenoon, the other in the afternoon; after reciting which we were left at liberty to roam at our pleasure. Winter evenings we worked in the factory till nine o'clock, after which, and before going to bed, we were required to recite over one of our lessons These advantages of education were not great, but even these I soon lost. Within five months from the time I was bound to him, my employer died. The factories were then sold out to three partners. The one who carried on the cotton-spinning took me; but he soon gave up the business, and went back to farming, which had been his original occupation. I remained with him for a year and a half, or thereabouts, when my father bound me out apprentice to a shoe-maker. My new bos was, in some respects, a remarkable man, but not a very good sort of one for a boy to be bound apprentice to. He paid very little attention to his business, which he seemed to think unworthy of his genius. He was a kind-hearted man, fond of company and frolics, in which he indulged himself freely, and much given to speeches and harangues, in which he had a good deal of fluency. In religion he professed to be a Universalist, holding to doctrines and opinions very different from those which my mother had instilled into me. He ridiculed those opinions, and argued against them, but without converting me to his way of thinking; though, as far as practice went, I was ready enough to imitate his example. My Sundays were spent principally in taverns, playing at dominos, which then was, and still is, a favorite game in that part of the country; and, as the unsuccessful party was expected to treat, I at times ran up a bill at the bar as high as four or six dollars,--no small indebtedness for a young apprentice with no more means than I had. As I grew older this method of living grew less and less satisfactory to me; and as I saw that no good of any kind, not even a knowledge of the trade he had undertaken to teach me, was to be got of my present bos, I bought my time of him, and went to work with another man to pay for it. Before I had succeeded in doing that, and while I was not yet nineteen, I took upon myself the still further responsibility of marriage. This was a step into which I was led rather by the impulse of youthful passion than by any thoughtful foresight. Yet it had at least this advantage, that it obliged me to set diligently to work to provide for the increasing family which I soon found growing up around me. I had never liked the shoe-making business, to which my father had bound me an apprentice. I had always desired to follow the water. The vessels which I had seen sailing up and down the Delaware Bay still haunted my fancy; and I engaged myself as cook on board a sloop, employed in carrying wood from Maurice river to Philadelphia. Promotion in this line is sufficiently rapid; for in four months, after commencing as cook, I rose to be captain. This wood business, in which I remained for two years, is carried on by vessels of from thirty to sixty tons, known as _bay-craft_. They are built so as to draw but little water, which is their chief distinction from the _coasters_, which are fit for the open sea. They will carry from twenty-five to fifty cords of wood, on which a profit is expected of a dollar and upwards. They have usually about three hands, the captain, or skipper, included. The men used to be hired, when I entered the business, for eight or ten dollars the month, but they now get nearly or quite twice as much. The captain usually sails the vessel on shares (unless he is himself owner in whole, or in part), victualling the vessel and hiring the men, and paying over to the owner forty dollars out of every hundred. During the winter, from December to March, the navigation is impeded by ice, and the bay-craft seldom run. The men commonly spend this long vacation in visiting, husking-frolics, rabbiting, and too often in taverns, to the exhaustion of their purses, the impoverishment of their families, and the sacrifice of their sobriety. Yet the watermen, if many of them are not able always to resist the temptations held out to them, are in general an honest and simple-hearted set, though with little education, and sometimes rather rough in their manners. The extent of my education when I took to the water--and in this respect I was not, perhaps, much inferior to the generality of my brother watermen--was to read with no great fluency, and to sign my name; nor did I ever learn much more than this till my residence in Washington jail, to be related hereafter. Having followed the wood business for two years, I aspired to something a little higher, and obtained the command of a sloop engaged in the coasting business, from Philadelphia southward and eastward. At this time a sloop of sixty tons was considered a very respectable coaster. The business is now mostly carried on by vessels of a larger class; some of them, especially the regular lines of packets, being very handsome and expensive. The terms on which these coasters were sailed were very similar to those already stated in the case of the bay-craft. The captain victualled the vessel, and paid the hands, and received for his share half the net profits, after deducting the extra expenses of loading and unloading. It was in this coasting business that the best years of my life were spent, during which time I visited most of the ports and rivers between Savannah southward, and St. John, in the British province of New Brunswick, eastward;--those two places forming the extreme limits of my voyagings. As Philadelphia was the port from and to which I sailed, I presently found it convenient to remove my family thither, and there they continued to live till after my release from the Washington prison. I was so successful in my new business, that, besides supporting my family, I was able to become half owner of the sloop Superior, at an expense of over a thousand dollars, most of which I paid down. But this proved a very unfortunate investment. On her second trip after I had bought into her, returning from Baltimore to Philadelphia by the way of the Delaware and Chesapeake canal, while off the mouth of the Susquehannah, she struck, as I suppose, a sunken tree, brought down by a heavy freshet in that river. The water flowed fast into the cabin. It was in vain that I attempted to run her ashore. She sunk in five minutes. The men saved themselves in the boat, which was on deck, and which floated as she went down. I stood by the rudder till the last, and stepped off it into the boat, loath enough to leave my vessel, on which there was no insurance. By this unfortunate accident I lost everything except the clothes I had on, and was obliged to commence anew. I accordingly obtained the command of the new sloop Sarah Henry, of seventy tons burden, and continued to sail her for several years, on shares. While in her I made a voyage to Savannah; and while under sail from that city for Charleston, I was taken with the yellow fever. I lay for a week quite unconscious of anything that was going on about me and came as near dying as a man could do and escape. The religious instructions of my mother had from time to time recurred to my mind, and had occasioned me some anxiety. I was now greatly alarmed at the idea of dying in my sins, from which I seemed to have escaped so narrowly. My mind was possessed with this fear; and, to relieve myself from it, I determined, if it were a possible thing, to get religion at any rate. The idea of religion in which I had been educated was that of a sudden, miraculous change, in which a man felt himself relieved from the burden of his sins, united to God, and made a new creature. For this experience I diligently sought, and tried every way to get it. I set up family prayers in my house, went to meetings, and conversed with experienced members of the church; but, for nine months or more, all to no purpose. At length I got into an awful state, beginning to think that I had been so desperate a sinner that there was no forgiveness for me. While I was in this miserable condition, I heard of a camp-meeting about to be held on Cape May, and I immediately resolved to attend it, and to leave no stone unturned to accomplish the object which I had so much at heart. I went accordingly, and yielded myself entirely up to the dictation of those who had the control of the meeting. I did in everything as I was told; went into the altar, prayed, and let them pray over me. This went on for several days without any result. One evening, as I approached the altar, and was looking into it, I met a captain of my acquaintance, and asked him what he thought of these proceedings; and, as he seemed to approve them, I invited him to go into the altar with me. We both went in accordingly, and knelt down. Pretty soon my friend got up and walked away, saying he had got religion. I did not find it so easily. I remained at the altar, praying, till after the meeting broke up, and even till one o'clock,--a few acquaintances and others remaining with me, and praying round me, and over me, and for me;--till, at last, thinking that I had done everything I could, I told them pray no more, as evidently there was no forgiveness for me. So I withdrew to a distance, and sat down upon an old tree, lamenting my hard case very seriously. I was sure I had committed the unpardonable sin. A friend, who sat down beside me, and of whom I inquired what he supposed the unpardonable sin was, endeavored comfort me by suggesting that, whatever it might be, it would take more sense and learning than ever I had to commit it. But I would not enter into his merriment. All the next day, which was Sunday, I passed in a most miserable state. I went into the woods alone. I did not think myself worthy or fit to associate with those who had religion, while I was anxious to avoid the company of those who made light of it. Sometimes I would sit down, sometimes I would stand up, sometimes I would walk about. Frequently I prayed, but found no comfort in it. About sun-set I met a friend, who said to me, "Well, our camp-meeting is about ended." What a misery those few words struck to my heart! "About ended!" I said to myself; "about ended, and I not converted!" A little later, as I was passing along the camp-ground, I saw a woman before me kneeling and praying. An acquaintance of mine, who was approaching her in an opposite direction, called out to me, "Daniel, help me pray for this woman!" I had made up my mind to make one more effort, and I knelt down and commenced praying; but quite as much for myself as for her. Others gathered about us and joined in, and the interest and excitement became so great, that, after a vain effort to call us off, the regular services of the evening were dispensed with, and the ground was left to us. Things went on in this way till about nine o'clock, when, as suddenly as if I had been struck a heavy blow, I felt a remarkable change come over me. All my fears and terrors seemed to be instantaneously removed, and my whole soul to be filled with joy and peace. This was the sort of change which I had been taught to look for as the consequence of getting that religion for which I had been struggling so hard. I instantly rose up, and told those about me that I was a converted man; and from that moment I was able to sing and shout and pray with the best of them. In the midst of my exultation who should come up but my old master in the shoe-making trade, of whom I have already given some account. He had heard that I was on the camp-ground in pursuit of religion, and had come to find me out. "Daniel," he said, addressing me by my Christian name, "what are you doing here? Don't make a fool of yourself." To which I answered, that I had got to be just such a fool as I had long wanted to be; and I took him by the arm, and endeavored to prevail upon him to kneel down and allow us to pray over him, assuring him that I knew his convictions to be much better than his conduct; that he must get religion, and now was the time. But he drew back, and escaped from me, with promises to do better, which, however, he did not keep. As for myself, considering, and, as I thought, feeling that I was a converted man, I now enjoyed for some time an extraordinary satisfaction, a sort of offset to the months of agony and misery which I had previously endured. But, though regarding myself as now truly converted, I delayed some time before uniting myself with any particular church. I did not know which to join. This division into so many hostile sects seemed to me unaccountable. I thought that all good Christians should love each other, and be as one family. Yet it seemed necessary to unite myself with some body of Christians; and, as I had been educated a Methodist, I concluded to join them. I have given the account of my religious experience exactly as it seemed to me at the time, and as I now remember it. It corresponded with the common course of religious experiences in the Methodist church, except that with me the struggle was harder than commonly happens. I did not doubt at the time that it was truly a supernatural change, as much the work of the Spirit as the sudden conversions recorded in the Acts of the Apostles. Others can form their own opinion about it. I will only add that subsequent experience has led me to the belief that the reality of a man's religion is more to be judged of by what he does than by how he feels or what he says. The change which had taken place in me, however it is to be regarded, was not without a decided influence on my whole future life. I no longer considered myself as living for myself alone. I regarded myself as bound to do unto others as I would that they should do unto me; and it was in attempting to act up to this principle that I became involved in the difficulties to be hereafter related. Meanwhile I resumed my voyages in the Sarah Henry, in which I continued to sail, on shares, for several years, with tolerable success. Afterwards I followed the same business in the schooner Protection, in which I suffered another shipwreck. We sailed from Philadelphia to Washington, in the District of Columbia, laden with coal, proceeding down the Delaware, and by the open sea; but, when off the entrance of the Chesapeake, we encountered a heavy gale, which split the sails, swept the decks, and drove us off our course as far south as Ocracoke Inlet, on the coast of North Carolina. I took a pilot, intending to go in to repair damages; but, owing to the strength of the current, which defeated his calculations, the pilot ran us on the bar. As soon as the schooner's bow touched the ground, she swung round broadside to the sea, which immediately began to break over her in a fearful manner. She filled immediately,--everything on deck was swept away; and, as our only chance of safety, we took to the main-rigging. This was about seven o'clock in the evening. Towards morning, by reason of the continual thumping, the mainmast began to work through the vessel, and to settle in the sand, so that it became necessary for us to make our way to the fore-rigging; which we did, not without danger, as one of the men was twice washed off. About a quarter of a mile inside was a small, low island, on which lay five boats, each manned by five men, who had come down to our assistance; but the surf was so high that they did not venture to approach us; so we remained clinging with difficulty to the rigging till about half-past one, when the schooner went to pieces. The mast to which we were clinging fell, and we were precipitated into the raging surf, which swept us onward towards the island already mentioned. The men there, anticipating what had happened, had prepared for its occurrence; and the best swimmers, with ropes tied round their waists, the other end of which was held by those on shore, plunged in to our assistance. One of our unfortunate company was drowned,--the rest of us came safely to the shore; but we lost everything except the clothes we stood in. The fragments saved from the wreck were sold at auction for two hundred dollars. The people of that neighborhood treated us with great kindness, and we presently took the packet for Elizabeth city, whence I proceeded to Norfolk, Baltimore, and so home. I had made up my mind to go to sea no more; but, after remaining on shore for three weeks, and not finding anything else to do, as it was necessary for me to have the means of supporting my increasing family, I took the command of another vessel, belonging to the same owners, the sloop Joseph B. While in this vessel, my voyages were to the eastward. I was engaged in the flour-trade, in conjunction with the owners of the vessel. We bought flour and grain on a sixty days' credit, which I carried to the Kennebec, Portsmouth, Boston, New Bedford, and other eastern ports, calculating upon the returns of the voyage to take up our notes. I was so successful in this business as finally to become the owner of the Joseph B., which vessel I exchanged away at Portsmouth for the Sophronia, a top-sail schooner of one hundred and sixty tons, worth about fourteen hundred dollars. In this vessel I made two trips to Boston,--one with coal, and the other with timber. Having unloaded my timber, I took in a hundred tons of plaster, purchased on my own account, intending to dispose of it in the Susquehanna. But on the passage I encountered a heavy storm, which blew the masts out of the vessel, and drove her ashore on the south side of Long Island. We saved our lives; but I lost everything except one hundred and sixty dollars, for which I sold what was left of the vessel and cargo. Having returned to my family, with but little disposition to try my fortune again in the coasting-trade, one day, being in the horse-market, I purchased a horse and wagon; and, taking in my wife and some of the younger children, I went to pay a visit to the neighborhood in which I was born. Here I traded for half of a bay-craft, of about sixty tons burden, in which I engaged in the oyster-trade, and other small bay-traffic. Having met at Baltimore the owner of the other half, I bought him out also. The whole craft stood me in about seven hundred dollars. I then purchased three hundred bushels of potatoes, with which I sailed for Fredericksburg, in Virginia; but this proved a losing trip, the potatoes not selling for what they cost me. At Fredericksburg I took in flour on freight for Norfolk; but my ill-luck still pursued me. In unloading the vessel, the cargo forward being first taken out, she settled by the stern and sprang a leak, damaging fifteen barrels of flour, which were thrown upon my hands. I then sailed for the eastern shore of Virginia, and at a place called Cherrystone traded off my damaged flour for a cargo of pears, with which I sailed for New York. I proceeded safely as far as Barnegat, when I encountered a north-east storm, which drove me back into the Delaware, obliging me to seek refuge in the same Maurice river from which I had commenced my sea-faring life in the wood business. But by this time the pears were spoiled, and I was obliged to throw them overboard. At Cherrystone I had met the owner of a pilot-boat, who had seemed disposed to trade with me for my vessel; and I now returned to that place, and completed the trade; after which I loaded the pilot-boat with oysters and terrapins, and sailed for Philadelphia. This boat was an excellent sailer, but too sharp, and not of burden enough for my business; and I soon exchanged her for half a little sloop, in which I carried a load of water-melons to Baltimore. By this time I was pretty well sick of the water; and, having hired out the sloop, I set up a shop, at Philadelphia, for the purchase and sale of junk, old iron, &c. &c. But, after continuing in this business for about two years,--my health being bad, and the doctor having advised me to try the water again,--I bought half of another sloop, and engaged in trading up and down Chesapeake Bay. Returning home, towards the close of the season, with the proceeds of the summer's business, I encountered, in the upper part of Chesapeake Bay, a terrible snow-storm which proved fatal to many vessels then in the bay. In attempting to make a harbor, the vessel struck the ground, and knocked off her rudder; and, in order to get her off, we were obliged to throw over the deck-load. We drifted about all day, it still blowing and snowing, and at night let go both anchors. So we lay for a night and a day; but, having neither boat, rudder nor provisions, I was finally obliged to slip the anchors and run ashore. I sold my half of her, as she lay, for ninety dollars, which was all that remained to me of my investment and my summer's work. Not having the means to purchase a boat, my health also continuing quite infirm, the next summer I hired one, and continued the same trade up and down the bay which I had followed the previous summer. My trading up and down the bay, in the way which I have described, of course brought me a good deal into contact with the slave population. No sooner, indeed, does a vessel, known to be from the north, anchor in any of these waters--and the slaves are pretty adroit in ascertaining from what state a vessel comes--than she is boarded, if she remains any length of time, and especially over night, by more or less of them, in hopes of obtaining a passage in her to a land of freedom. During my earlier voyagings, several years before, in Chesapeake Bay, I had turned a deaf ear to all these requests. At that time, according to an idea still common enough, I had regarded the negroes as only fit to be slaves, and had not been inclined to pay much attention to the pitiful tales which they told me of ill-treatment by their masters and mistresses. But my views upon this subject had undergone a gradual change. I knew it was asserted in the Declaration of Independence that all men are born free and equal, and I had read in the Bible that God had made of one flesh all the nations of the earth. I had found out, by intercourse with the negroes, that they had the same desires, wishes and hopes, as myself. I knew very well that I should not like to be a slave even to the best of masters, and still less to such sort of masters as the greater part of the slaves seemed to have. The idea of having first one child and then another taken from me, as fast as they grew large enough, and handed over to the slave-traders, to be carried I knew not where, and sold, if they were girls, I knew not for what purposes, would have been horrible enough; and, from instances which came to my notice, I perceived that it was not less horrible and distressing to the parties concerned in the case of black people than of white ones. I had never read any abolition books, nor heard any abolition lectures. I had frequented only Methodist meetings, and nothing was heard there about slavery. But, for the life of me, I could not perceive why the golden rule of doing to others as you would wish them to do to you did not apply to this case. Had I been a slave myself,--and it is not a great while since the Algerines used to make slaves of our sailors, white as well as black,--I should have thought it very right and proper in anybody who would have ventured to assist me in escaping out of bondage; and the more dangerous it might have been to render such assistance, the more meritorious I should have thought the act to be. Why had not these black people, so anxious to escape from their masters, as good a light to their liberty as I had to mine? I know it is sometimes said, by those who defend slavery or apologize for it, that the slaves at the south are very happy and contented, if left to themselves, and that this idea of running away is only put into their heads by mischievous white people from the north. This will do very well for those who know nothing of the matter personally, and who are anxious to listen to any excuse. But there is not a waterman who ever sailed in Chesapeake Bay who will not tell you that, so far from the slaves needing any prompting to run away, the difficulty is, when they ask you to assist them, to make them take no for an answer. I have known instances where men have lain in the woods for a year or two, waiting for an opportunity to escape on board some vessel. On one of my voyages up the Potomac, an application was made to me on behalf of such a runaway; and I was so much moved by his story, that, had it been practicable for me at that time, I should certainly have helped him off. One or two attempts I did make to assist the flight of some of those who sought my assistance; but none with success, till the summer of 1847, which is the period to which I have brought down my narrative. I was employed during that summer, as I have mentioned already in trading up and down the Chesapeake, in a hired boat, a small black boy being my only assistant. Among other trips, I went to Washington with a cargo of oysters. While I was lying there, at the same wharf, as it happened, from which the Pearl afterwards took her departure, a colored man came on board, and, observing that I seemed to be from the north, he said he supposed we were pretty much all abolitionists there. I don't know where he got this piece of information, but I think it likely from some southern member of Congress. As I did not check him, but rather encouraged him to go on, he finally told me that he wanted to get passage to the north for a woman and five children. The husband of the woman, and father of the children, was a free colored man; and the woman, under an agreement with her master, had already more than paid for her liberty; but, when she had asked him for a settlement, he had only answered by threatening to sell her. He begged me to see the woman, which I did; and finally I made an arrangement to take them away. Their bedding, and other things, were sent down on board the vessel in open day, and at night the woman came on board with her five children and a niece. We were ten days in reaching Frenchtown, where the husband was in waiting for them. He took them under his charge, and I saw them no more; but, since my release from imprisonment in Washington, I have heard that the whole family are comfortably established in a free country, and doing well. Having accomplished this exploit,--and was it not something of an exploit to bestow the invaluable gift of liberty upon seven of one's fellow-creatures--the season being now far advanced, I gave up the boat to the owner, and returned to my family at Philadelphia. In the course of the following month of February, I received a note from a person whom I had never known or heard of before, desiring me to call at a certain place named in it. I did so, when it appeared that I had been heard of through the colored family which I had brought off from Washington. A letter from that city was read to me, relating the case of a family or two who expected daily and hourly to be sold, and desiring assistance to get them away. It was proposed to me to undertake this enterprise; but I declined it at this time, as I had no vessel, and because the season was too early for navigation through the canal. I saw the same person again about a fortnight later, and finally arranged to go on to Washington, to see what could be done. There I agreed to return again so soon as I could find a vessel fit for the enterprise. I spoke with several persons of my acquaintance, who had vessels under their control; but they declined, on account of the danger. They did not appear to have any other objection, and seemed to wish me success. Passing along the street, I met Captain Sayres, and knowing that he was sailing a small bay-craft, called the Pearl, and learning from him that business was dull with him, I proposed the enterprise to him, offering him one hundred dollars for the charter of his vessel to Washington and back to Frenchtown where, according to the arrangement with the friends of the passengers, they were to be met and carried to Philadelphia. This was considerably more than the vessel could earn in any ordinary trip of the like duration, and Sayres closed with the offer. He fully understood the nature of the enterprise. By our bargain, I was to have, as supercargo, the control of the vessel so far as related to her freight, and was to bring away from Washington such passengers as I chose to receive on board; but the control of the vessel in other respects remained with him. Captain Sayres engaged in this enterprise merely as a matter of business. I, too, was to be paid for my time and trouble,--an offer which the low state of my pecuniary affairs, and the necessity of supporting my family, did not allow me to decline. But this was not, by any means, my sole or principal motive. I undertook it out of sympathy for the enslaved, and from my desire to do something to further the cause of universal liberty. Such being the different ground upon which Sayres and myself stood, I did not think it necessary or expedient to communicate to him the names of the persons with whom the expedition had originated; and, at my suggestion, those persons abstained from any direct communication with him, either at Philadelphia or Washington. Sayres had, as cook and sailor, on board the Pearl, a young man named Chester English. He was married, and had a child or two, but was himself as inexperienced as a child, having never been more than thirty miles from the place where he was born. I remonstrated with Sayres against taking this young man with us. But English, pleased with the idea of seeing Washington, desired to go; and Sayres, who had engaged him for the season, did not like to part with him. He went with us, but was kept in total ignorance of the real object of the voyage. He had the idea that we were going to Washington for a load of ship-timber. We proceeded down the Delaware, and by the canal into the Chesapeake, making for the mouth of the Potomac. As we ascended that river we stopped at a place called Machudock, where I purchased, by way of cargo and cover to the voyage, twenty cords of wood; and with that freight on board we proceeded to Washington, where we arrived on the evening of Thursday, the 13th of April, 1848. As it happened, we found that city in a great state of excitement on the subject of emancipation, liberty and the rights of man. A grand torch-light procession was on foot, in honor of the new French revolution, the expulsion of Louis-Philippe, and the establishment of a republic in France. Bonfires were blazing in the public squares, and a great out-door meeting was being held in front of the _Union_ newspaper office, at which very enthusiastic and exciting speeches were delivered, principally by southern democratic members of Congress, which body was at that time in session. A full account of these proceedings, with reports of the speeches, was given in the _Union_ of the next day. According to this report, Mr. Foote, the senator from Mississippi, extolled the French revolution as holding out "to the whole family of man a bright promise of the universal establishment of civil and religious liberty." He declared, in the same speech, "that the age of tyrants and of slavery was rapidly drawing to a close, and that the happy period to be signalized by the _universal emancipation_ of man from the fetters of civic oppression, and the recognition in all countries of the great principles of popular sovereignty, equality and brotherhood, was at this moment visibly commencing." Mr. Stanton, of Tennessee, and others, spoke in a strain equally fervid and philanthropic. I am obliged to refer to the _Union_ newspaper for an account of these speeches, as I did not hear them myself. I came to Washington, not to preach, nor to hear preached, emancipation, equality and brotherhood, but to put them into practice. Sayres and English went up to see the procession and hear the speeches. I had other things to attend to. The news of my arrival soon spread among those who had been expecting it, though I neither saw nor had any direct communication with any of those who were to be my passengers. I had some difficulty in disposing of my wood, which was not a very first-rate article, but finally sold it, taking in payment the purchaser's note on sixty days, which I changed off for half cash and half provisions. As the trader to whom I passed the note had no hard bread, Sayres and myself went in the steamer to Alexandria to purchase a barrel,--a circumstance of which it was afterwards attempted to take advantage against us. It was arranged that the passengers should come on board after dark on Saturday evening, and that we should sail about midnight. I had understood that the expedition, had principally originated in the desire to help off a certain family, consisting of a woman, nine children and two grand-children, who were believed to be legally entitled to their liberty. Their case had been in litigation for some time; but, although they had a very good case,--the lawyer whom they employed (Mr. Bradley, one of the most distinguished members of the bar of the district) testified, in the course of one of my trials, that he believed them to be legally free,--yet, as their money was nearly exhausted, and as there seemed to be no end to the law's delay and the pertinacity of the woman who claimed them, it was deemed best by their friends that they should get away if they could, lest she might seize them unawares, and sell them to some trader. In speaking of this case, the person with whom I communicated at Washington informed me that there were also quite a number of others who wished to avail themselves of this opportunity of escaping, and that the number of passengers was likely to be larger than had at first been calculated upon. To which I replied, that I did not stand about the number; that all who were on board before eleven o'clock I should take,--the others would have to remain behind. Saturday evening, at supper, I let English a little into the secret of what I intended. I told him that the sort of ship-timber we were going to take would prove very easy to load and unload; that a number of colored people wished to take passage with us down the bay, and that, as Sayres and myself would be away the greater part of the evening, all he had to do was, as fast as they came on board, to lift up the hatch and let them pass into the hold, shutting the hatch down upon them. The vessel, which we had moved down the river since unloading the wood, lay at a rather lonely place, called White-house Wharf, from a whitish-colored building which stood upon it. The high bank of the river, under which a road passed, afforded a cover to the wharf, and there were only a few scattered buildings in the vicinity. Towards the town there stretched a wide extent of open fields. Anxious, as might naturally be expected, as to the result, I kept in the vicinity to watch the progress of events. There was another small vessel that lay across the head of the same wharf, but her crew were all black; and, going on board her just at dusk, I informed the skipper of my business, intimating to him, at the same time, that it would be a dangerous thing for him to betray me. He assured me that I need have no fears of him--that the other men would soon leave the vessel, not to return again till Monday, and that, for himself, he should go below and to sleep, so as neither to hear nor to see anything. Shortly after dark the expected passengers began to arrive, coming stealthily across the fields, and gliding silently on board the vessel. I observed a man near a neighboring brick-kiln, who seemed to be watching them. I went towards him, and found him to be black. He told me that he understood what was going on, but that I need have no apprehension of him. Two white men, who walked along the road past the vessel, and who presently returned back the same way, occasioned me some alarm; but they seemed to have no suspicions of what was on foot, as I saw no more of them. I went on board the vessel several times in the course of the evening, and learned from English that the hold was fast filling up. I had promised him, in consideration of the unusual nature of the business we were engaged in, ten dollars as a gratuity, in addition to his wages. Something past ten o'clock, I went on board, and directed English to cast off the fastenings and to get ready to make sail. Pretty soon Sayres came on board. It was a dead calm, and we were obliged to get the boat out to get the vessel's head round. After dropping down a half a mile or so, we encountered the tide making up the river; and, as there was still no wind, we were obliged to anchor. Here we lay in a dead calm till about daylight. The wind then began to breeze up lightly from the northward, when we got up the anchor and made sail. As the sun rose, we passed Alexandria. I then went into the hold for the first time, and there found my passengers pretty thickly stowed. I distributed bread among them, and knocked down the bulkhead between the hold and the cabin, in order that they might get into the cabin to cook. They consisted of men and women, in pretty equal proportions, with a number of boys and girls, and two small children. The wind kept increasing and hauling to the westward. Off Fort Washington we had to make two stretches, but the rest of the way we run before the wind. Shortly after dinner, we passed the steamer from Baltimore for Washington, bound up. I thought the passengers on board took particular notice of us; but the number of vessels met with in a passage up the Potomac at that season is so few, as to make one, at least for the idle passengers of a steamboat, an object of some curiosity. Just before sunset, we passed a schooner loaded with plaster, bound up. As we approached the mouth of the Potomac, the wind hauled to the north, and blew with such stiffness as would make it impossible for us to go up the bay, according to our original plan. Under these circumstances, apprehending a pursuit from Washington, I urged Sayres to go to sea, with the intention of reaching the Delaware by the outside passage. But he objected that the vessel was not fit to go outside (which was true enough), and that the bargain was to go to Frenchtown. Having reached Point Lookout, at the mouth of the river, and not being able to persuade Sayres to go to sea, and the wind being dead in our teeth, and too strong to allow any attempt to ascend the bay, we came to anchor in Cornfield harbor, just under Point Lookout, a shelter usually sought by bay-craft encountering contrary winds when in that neighborhood. We were all sleepy with being up all the night before, and, soon after dropping anchor, we all turned in. I knew nothing more till, waking suddenly, I heard the noise of a steamer blowing off steam alongside of us. I knew at once that we were taken. The black men came to the cabin, and asked if they should fight. I told them no; we had no arms, nor was there the least possibility of a successful resistance. The loud shouts and trampling of many feet overhead proved that our assailants were numerous. One of them lifted the hatch a little, and cried out, "Niggers, by G--d!" an exclamation to which the others responded with three cheers, and by banging the buts of their muskets against the deck. A lantern was called for, to read the name of the vessel; and it being ascertained to be the Pearl, a number of men came to the cabin-door, and called for Captain Drayton. I was in no great hurry to stir; but at length rose from my berth, saying that I considered myself their prisoner, and that I expected to be treated as such. While I was dressing, rather too slowly for the impatience of those outside, a sentinel, who had been stationed at the cabin-door, followed every motion of mine with his gun, which he kept pointed at me, in great apprehension, apparently, lest I should suddenly seize some dangerous weapon and make at him. As I came out of the cabin-door, two of them seized me, took me on board the steamer and tied me; and they did the same with Sayres and English, who were brought on board, one after the other. The black people were left on board the Pearl, which the steamer took in tow, and then proceeded up the river. To explain this sudden change in our situation, it is necessary to go back to Washington. Great was the consternation in several families of that city, on Sunday morning, to find no breakfast, and, what was worse, their servants missing. Nor was this disaster confined to Washington only. Georgetown came in for a considerable share of it, and even Alexandria, on the opposite side of the river, had not entirely escaped. The persons who had taken passage on board the Pearl had been held in bondage by no less than forty-one different persons. Great was the wonder at the sudden and simultaneous disappearance of so many "prime hands," roughly estimated, though probably with considerable exaggeration, as worth in the market not less than a hundred thousand dollars,--and all at "one fell swoop" too, as the District Attorney afterwards, in arguing the case against me, pathetically expressed it! There were a great many guesses and conjectures as to where these people had gone, and how they had gone; but it is very doubtful whether the losers would have got upon the right track, had it not been for the treachery of a colored hackman, who had been employed to carry down to the vessel two passengers who had been in hiding for some weeks previous, and who could not safely walk down, lest they might be met and recognized. Emulating the example of that large, and, in their own opinion at least, highly moral, religious and respectable class of white people, known as "dough-faces," this hackman thought it a fine opportunity to feather his nest by playing cat's-paw to the slave-holders. Seeing how much the information was in demand, and anticipating, no doubt, a large reward, he turned informer, and described the Pearl as the conveyance which the fugitives had taken; and, it being ascertained that the Pearl had actually sailed between Saturday night and Sunday morning, preparations were soon made to pursue her. A Mr. Dodge, of Georgetown, a wealthy old gentleman, originally from New England, missed three or four slaves from his family, and a small steamboat, of which he was the proprietor, was readily obtained. Thirty-five men, including a son or two of old Dodge, and several of those whose slaves were missing, volunteered to man her; and they set out about Sunday noon, armed to the teeth with guns, pistols, bowie-knives, &c., and well provided with brandy and other liquors. They heard of us on the passage down, from the Baltimore steamer and the vessel loaded with plaster. They reached the mouth of the river, and, not having found the Pearl, were about to return, as the steamer could not proceed into the bay without forfeiting her insurance. As a last chance, they looked into Cornfield harbor, where they found us, as I have related. This was about two o'clock in the morning. The Pearl had come to anchor about nine o'clock the previous evening. It is a hundred and forty miles from Washington to Cornfield harbor. The steamer, with the Pearl in tow, crossed over from Point Lookout to Piney Point, on the south shore of the Potomac, and here the Pearl was left at anchor, a part of the steamer's company remaining to guard her, while the steamer, having myself and the other white prisoners on board, proceeded up Coan river for a supply of wood, having obtained which, she again, about noon of Monday, took the Pearl in tow and started for Washington. The bearing, manner and aspect of the thirty-five armed persons by whom we had been thus seized and bound, without the slightest shadow of lawful authority, was sufficient to inspire a good deal of alarm. We had been lying quietly at anchor in a harbor of Maryland; and, although the owners of the slaves might have had a legal right to pursue and take them back, what warrant or authority had they for seizing us and our vessel? They could have brought none from the District of Columbia, whose officers had no jurisdiction or authority in Cornfield harbor; nor did they pretend to have any from the State of Maryland. Some of them showed a good deal of excitement, and evinced a disposition to proceed to lynch us at once. A man named Houver, who claimed as his property two of the boys passengers on board the Pearl, put me some questions in a very insolent tone; to which I replied, that I considered myself a prisoner, and did not wish to answer any questions; whereupon one of the bystanders, flourishing a dirk in my face, exclaimed, "If I was in his place, I'd put this through you!" At Piney Point, one of the company proposed to hang me up to the yard-arm, and make me confess; but the more influential of those on board were not ready for any such violence, though all were exceedingly anxious to get out of me the history of the expedition, and who my employers were. That I had employers, and persons of note too, was taken for granted on all hands; nor did I think it worth my while to contradict it, though I declined steadily to give any information on that point. Sayres and English very readily told all that they knew. English, especially, was in a great state of alarm, and cried most bitterly. I pitied him much, besides feeling some compunctions at getting him thus into difficulty; and, upon the representations which I made, that he came to Washington in perfect ignorance of the object of the expedition, he was finally untied. As Sayres was obliged to admit that he came to Washington to take away colored passengers, he was not regarded with so much favor. But it was evidently me whom they looked upon as the chief culprit, alone possessing a knowledge of the history and origin of the expedition, which they were so anxious to unravel. They accordingly went to work very artfully to worm this secret out of me. I was placed in charge of one Orme, a police-officer of Georgetown, whose manner towards me was such as to inspire me with a certain confidence in him; who, as it afterwards appeared from his testimony on the trial, carefully took minutes--but, as it proved, very confused and incorrect ones--of all that I said, hoping thus to secure something that might turn out to my disadvantage. Another person, with whom I had a good deal of conversation, and who was afterwards produced as a witness against me, was William H. Craig, in my opinion a much more conscientious person than Orme, who seemed to think that it was part of his duty, as a police-officer, to testify to something, at all hazards, to help on a conviction. But this is a subject to which I shall have occasion to return presently. In one particular, at least, the testimony of both these witnesses was correct enough. They both testified to my expressing pretty serious apprehensions of what the result to myself was likely to be. What the particular provisions were, in the District of Columbia, as to helping slaves to escape, I did not know; but I had heard that, in some of the slave-states, they were very severe; in fact, I was assured by Craig that I had committed the highest crime, next to murder, known in their laws. Under these circumstances, I made up my mind that the least penalty I should be apt to escape with was confinement in the penitentiary for life; and it is quite probable that I endeavored to console myself, as these witnesses testified, with the idea that, after all, it might, in a religious point of view, be all for the best, as I should thus be removed from temptation, and have ample time for reflection and repentance. But my apprehensions were by no means limited to what I might suffer under the forms of law. From the temper exhibited by some of my captors, and from the vindictive fury with which the idea of enabling the enslaved to regain their liberty was, I knew, generally regarded at the south, I apprehended more sudden and summary proceedings; and what happened afterwards at Washington proved that these apprehensions were not wholly unfounded. The idea of being torn in pieces by a furious mob was exceedingly disagreeable. Many men, who might not fear death, might yet not choose to meet it in that shape. I called to mind the apology of the Methodist minister, who, just after a declaration of his that he was not afraid to die, ran away from a furious bull that attacked him,--"that, though not fearing death, he did not like to be torn in pieces by a mad bull." I related this anecdote to Craig, and, as he testified on the trial, expressed my preference to be taken on the deck of the steamer and shot at once, rather than to be given up to a Washington mob to be baited and murdered. I talked pretty freely with Orme and Craig about myself, the circumstances under which I had undertaken this enterprise, my motives to it, my family, my past misfortunes, and the fate that probably awaited me; but they failed to extract from me, what they seemed chiefly to desire, any information which would implicate others. Orme told me, as he afterwards testified, that what the people in the District wanted was the principals; and that, if I would give information that would lead to them, the owners of the slaves would let me go, or sign a petition for my pardon. Craig also made various inquiries tending to the same point. Though I was firmly resolved not to yield in this particular, yet I was desirous to do all I could to soften the feeling against me; and it was doubtless this desire which led me to make the statements sworn to by Orme and Craig, that I had no connection with the persons called abolitionists,--which was true enough; that I had formerly refused large offers made me by slaves to carry them away; and that, in the present instance, I was employed by others, and was to be paid for my services. On arriving off Fort Washington, the steamer anchored for the night, as the captors preferred to make their triumphant entry into the city by daylight. Sayres and myself were watched during the night by a regular guard of two men, armed with muskets, who were relieved from time to time. Before getting under weigh again,--which they did about seven o'clock in the morning of Tuesday, Feb. 18,--Sayres and myself were tied together arm-and-arm, and the black people also, two-and-two, with the other arm bound behind their backs. As we passed Alexandria, we were all ordered on deck, and exhibited to the mob collected on the wharves to get a sight of us, who signified their satisfaction by three cheers. When we landed at the steamboat-wharf in Washington, which is a mile and more from Pennsylvania Avenue, and in a remote part of the city, but few people had yet assembled. We were marched up in a long procession, Sayres and myself being placed at the head of it, guarded by a man on each side; English following next, and then the negroes. As we went along, the mob began to increase; and, as we passed Gannon's slave-pen, that slave-trader, armed with a knife, rushed out, and, with horrid imprecations, made a pass at me, which was very near finding its way through my body. Instead of being arrested, as he ought to have been, this slave-dealer was politely informed that I was in the hands of the law, to which he replied, "D--n the law!--I have three negroes, and I will give them all for one thrust at this d--d scoundrel!" and he followed along, waiting his opportunity to repeat the blow. The crowd, by this time, was greatly increased. We met an immense mob of several thousand persons coming down Four-and-a-half street, with the avowed intention of carrying us up before the capitol, and making an exhibition of us there. The noise and confusion was very great. It seemed as if the time for the lynching had come. When almost up to Pennsylvania Avenue, a rush was made upon us,--"Lynch them! lynch them! the d--n villains!" and other such cries, resounded on all sides. Those who had us in charge were greatly alarmed; and, seeing no other way to keep us from the hands of the mob, they procured a hack, and put Sayres and myself into it. The hack drove to the jail, the mob continuing to follow, repeating their shouts and threats. Several thousand people surrounded the jail, filling up the enclosure about it. Our captors had become satisfied, from the statements made by Sayres and myself, and from his own statements and conduct, that the participation of English in the affair was not of a sort that required any punishment; and when the mob made the rush upon us, the persons having him in charge had let him go, with the intention that he should escape. After a while he had found his way back to the steamboat wharf; but the steamer was gone. Alone in a strange place, and not knowing what to do, he told his story to somebody whom he met, who put him in a hack and sent him up to the jail. It was a pity he lacked the enterprise to take care of himself when set at liberty, as it cost him four months' imprisonment and his friends some money. I ought to have mentioned before that, on arriving within the waters of the District, Sayres and myself had been examined before a justice of the peace, who was one of the captors; and who had acted as their leader. He had made out a commitment against us, but none against English; so that the persons who had him in charge were right enough in letting him go. Sayres and myself were at first put into the same cell, but, towards night, we were separated. A person named Goddard, connected with the police, came to examine us. He went to Sayres first. He then came to me, when I told him that, as I supposed he had got the whole story out of Sayres, and as it was not best that two stories should be told, I would say nothing. Goddard then took from me my money. One of the keepers threw me in two thin blankets, and I was left to sleep as I could. The accommodations were not of the most luxurious kind. The cell had a stone floor, which, with the help of a blanket, was to serve also for a bed. There was neither chair, table, stool, nor any individual piece of furniture of any kind, except a night-bucket and a water-can. I was refused my overcoat and valise, and had nothing but my water-can to make a pillow of. With such a pillow, and the bare stone floor for my bed, looked upon by all whom I saw with apparent abhorrence and terror,--as much so, to all appearance, as if I had been a murderer, or taken in some other desperate crime,--remembering the execrations which the mob had belched forth against me, and uncertain whether a person would be found to express the least sympathy for me (which might not, in the existing state of the public feeling, be safe), it may be imagined that my slumbers were not very sound. Meanwhile the rage of the mob had taken, for the moment, another direction. I had heard it said, while we were coming up in the steamboat, that the abolition press must be stopped; and the mob accordingly, as the night came on, gathered about the office of the _National Era_, with threats to destroy it. Some little mischief was done; but the property-holders in the city, well aware how dependent Washington is upon the liberality of Congress, were unwilling that anything should occur to place the District in bad odor at the north. Some of them, also, it is but justice to believe, could not entirely give in to the slave-holding doctrine and practice of suppressing free discussion by force; and, by their efforts, seconded by a drenching storm of rain, that came on between nine and ten o'clock, the mob were persuaded to disperse for the present. The jail was guarded that night by a strong body of police, serious apprehensions being entertained, lest the mob, instigated by the violence of many southern members of Congress, should break in and lynch us. Great apprehension, also, seemed to be felt at the jail, lest we might be rescued; and we were subject, during the night, to frequent examinations, to see that all was safe. Great was the terror, as well as the rage, which the abolitionists appeared to inspire. They seemed to be thought capable, if not very narrowly watched, of taking us off through the roof, or the stone floor, or out of the iron-barred doors; and, from the half-frightened looks which the keepers gave me from time to time, I could plainly enough read their thoughts,--that a fellow who had ventured on such an enterprise as that of the Pearl was desperate and daring enough to attempt anything. For a poor prisoner like me, so much in the power of his captors, and without the slightest means, hopes, or even thoughts of escape, it was some little satisfaction to observe the awe and terror which he inspired. Of the prison fare I shall have more to say, by and by. It is sufficient to state here that it was about on a par with the sleeping accommodations, and hardly of a sort to give a man in my situation the necessary physical vigor. However, I thought little of this at that moment, as I was too sick and excited to feel much disposition to eat. The Washington prison is a large three-story stone building, the front part of the lower story of which is occupied by the guard-room, or jail-office, and by the kitchen and sleeping apartments for the keepers. The back part, shut off from the front by strong grated doors, has a winding stone stair-case, ascending in the middle, on each side of which, on each of the three stories, are passage-ways, also shut off from the stair-case, by grated iron doors. The back wall of the jail forms one side of these passages, which are lighted by grated windows. On the other side are the cells, also with grated iron doors, and receiving their light and air entirely from the passages. The passages themselves have no ventilation except through the doors and windows, which answer that purpose very imperfectly. The front second story, over the guard-room, contains the cells for the female prisoners. The front third story is the debtors' apartment. The usage of the jail always has been--except in cases of insubordination or attempted escape, when locking up in the cells by day, as well as by night, has been resorted to as a punishment--to allow the prisoners, during the day-time, the use of the passages, for the benefit of light, air and exercise. Indeed, it is hard to conceive a more cruel punishment than to keep a man locked up all the time in one of these half-lighted, unventilated cells. On the morning of the second day of our confinement, we too were let out into the passage. But we were soon put back again, and not only into separate cells, but into separate passages, so as to be entirely cut off from any communication with each other. It was a long time before we were able to regain the privilege of the passage. But, for the present, I shall pass over the internal economy and administration of the prison, and my treatment in it, intending, further on, to give a general sketch of that subject. About nine or ten o'clock, Mr. Giddings, the member of Congress from Ohio, came to see us. There was some disposition, I understood, not to allow him to enter the jail; but Mr. Giddings is a man not easily repulsed, and there is nobody of whom the good people at Washington, especially the office-holders, who make up so large a part of the population, stand so much in awe as a member of Congress; especially a member of Mr. Giddings' well-known fearless determination. He was allowed to come in, bringing another person with him, but was followed into the jail by a crowd of ruffians, who compelled the turnkey to admit them into the passage, and who vented their rage in execration and threats. Mr. Giddings said that he had understood we were here in jail without counsel or friends, and that he had come to let us know that we should not want for either; and he introduced the person he had brought with him as one who was willing to act temporarily as our counsel. Not long after, Mr. David A. Hall, a lawyer of the District, came to offer his services to us in the same way. Key, the United States Attorney for the District, and who, as such, had charge of the proceedings against us, was there at the same time. He advised Mr. Hall to leave the jail and go home immediately, as the people outside were furious, and he ran the risk of his life. To which Mr. Hall replied that things had come to a pretty pass, if a man's counsel was not to have the privilege of talking with him. "Poor devils!" said the District Attorney, as he went out, "I pity them,--they are to be made scape-goats for others!" Yet the rancor, and virulence, and fierce pertinacity with which this Key afterwards pursued me, did not look much like pity. No doubt he was a good deal irritated at his ill success in getting any information out of me. The seventy-six passengers found on board the Pearl had been committed to the jail as runaways, and Mr. Giddings, on going up to the House, by way of warning, I suppose, to the slave-holders, that they were not to be allowed to have everything their own way, moved an inquiry into the circumstances under which seventy-six persons were held prisoners in the District jail, merely for attempting to vindicate their inalienable rights. Mr. Hale also, in the Senate, in consequence of the threats held out to destroy the _Era_ office, and to put a stop to the publication of that paper, moved a resolution of inquiry into the necessity of additional laws for the protection of property in the District. The fury which these movements excited in the minds of the slave-holders found expression in the editorial columns of the Washington _Union_, in an article which I have inserted below, as forming a curious contrast to the exultations of that print, only a week before, and to which I have had occasion already to refer, over the spread of the principles of liberty and universal emancipation. The violent attack upon Mr. Giddings, because he had visited us three poor prisoners in jail, and offered us the assistance of counsel,--as if the vilest criminals were not entitled to have counsel to defend them,--is well worthy of notice. The following is the article referred to. THE ABOLITION INCENDIARIES. Those two abolition incendiaries (Giddings and Hale) threw firebrands yesterday into the two houses of Congress. The western abolitionist moved a resolution of inquiry into the transactions now passing in Washington, which brought on a fierce and fiery debate on the part of the southern members, in the course of which Mr. Giddings _was compelled to confess_, on the cross-questioning of Messrs. Venable and Haskell, _that he had visited the three piratical kidnappers now confined in jail, and offered them counsel_. The reply of Mr. Toombs, of Georgia, was scorching to an intense degree. The abolitionist John P. Hale threw a firebrand resolution into the Senate, calling for additional laws to compel this city to prevent riots. This also gave rise to a long and excited debate. No question was taken, in either house, before they adjourned. But, in the progress of the discussion in both houses, some doctrines were uttered which are calculated to startle the friends of the Union. Giddings justified the kidnappers, and contended that, though the act was legally forbidden, it was not morally wrong! Mr. Toombs brought home the practical consequences of this doctrine to the member from Ohio in a most impressive manner. Hale, of the Senate, whilst he was willing to protect the abolitionist, expressed himself willing to relax the laws and weaken the protection which is given to the slave property in this district! Mr. Davis, of Massachusetts, held the strange doctrine, that while he would not disturb the rights of the slave-holders, he would not cease to discuss those rights! As if Congress ought to discuss, or to protect a right to discuss, a domestic institution of the Southern States, with which they had no right to interfere! Why discuss, when they cannot act? Why first lay down an abstract principle, which they intend to violate in practice? Such fanatics as Giddings and Hale are doing more mischief than they will be able to atone for. Their incessant and impertinent intermeddling with the most delicate question in our social relations is creating the most indignant feelings in the community. The fiery discussions they are exciting are calculated to provoke the very riots which they deprecate. Let these madmen forbear, if they value the tranquillity of our country, and the stability of our Union. We conjure them to forbear their maddened, parricidal hand. An article like this in the _Union_ was well calculated, and probably was intended, to encourage and stimulate the rioters, and accordingly they assembled that same evening in greater force than before threatening the destruction of the _Era_ office. The publication office of the _Era_ was not far from the Patent Office; and the dwelling-house of Dr. Bailey, the editor, was at no great distance. The mob, taking upon themselves the character of a meeting of citizens, appointed a committee to wait upon Dr. Bailey, to require him to remove his press out of the District of Columbia. Of course, as I was locked up in the jail, trying to rest my aching head and weary limbs, with a stone floor for a bed and a water-can for my pillow, I can have no personal knowledge of what transpired on this occasion. But a correspondent of the New York _Tribune_, who probably was an eye-witness, gives the following account of the interview between the committee and Dr. Bailey: Clearing his throat, the leader of the committee stretched forth his hand, and thus addressed Dr. Bailey: _Mr. Radcliff_.--Sir, we have been appointed as a committee to wait upon you, by the meeting of the citizens of Washington which has assembled this evening to take into consideration the circumstances connected with the late outrage upon _our_ property, and to convey to you the result of the deliberations of that meeting. You are aware of the excitement which now prevails. It has assumed a most threatening aspect. This community is satisfied that the existence of your press among us is endangering the public peace, and they are convinced that the public interests demand its removal. We have therefore waited upon you for the purpose of inquiring whether you are prepared to remove your press by ten o'clock to-morrow morning; and we beseech you, as you value the peace of this District, to accede to our request. [Loud shouting heard at the Patent Office.] _Dr. Bailey_.--Gentlemen: I do not believe you are actuated by any unkind feelings towards me personally; but you must be aware that you are demanding of me the surrender of a great constitutional right,--a right which I have used, but not abused,--in the preservation of which you are as deeply interested as I am. How can you ask me to abandon it, and thus become a party to my own degradation? _Mr. Radcliff_.--We subscribe to all that you say. But you see the popular excitement. The consequences of your refusal are inevitable. Now, if you can avert these consequences by submitting to what the people request, although unreasonable, is it not your duty, as a good citizen, to submit? It is on account of the community we come here, obeying the popular feeling which you hear expressed in the distance, and which cannot be calmed, and, but for the course we have adopted, would at this moment be manifested in the destruction of your office. But they have consented to wait till they hear our report. We trust, then, that, as a good citizen, you will respond favorably to the wish of the people. _Another of the Committee_.--As one of the oldest citizens, I do assure you that it is in all kindness we make this request. We come here to tell you that we cannot arrest violence in any other way than by your allowing us to say that you yield to the request of the people. In kindness we tell you that if this thing commences here we know not where it may end. I am for mild measures myself. The prisoners were in my hands, but I would not allow my men to inflict any punishment on them. _Dr. Bailey_.--Gentlemen, I appreciate your kindness; but I ask, is there a man among you who, standing as I now stand, the representative of a free press, would accede to this demand, and abandon his rights as an American citizen? _One of the Committee_.--We know it is a great sacrifice that we ask of you; but we ask it to appease popular excitement. _Dr. Bailey_.--Let me say to you that I am a peace-man. I have taken no measures to defend my office, my house or myself. I appeal to the good sense and intelligence of the community, and stand upon my rights as an American citizen, looking to the law alone for protection. _Mr. Radcliff_.--We have now discharged our duty. It has come to this,--the people say it must be done, unless you agree to go to-morrow. We now ask a categorical answer,--Will you remove your press? _Dr. Bailey_.--I answer: I make no resistance, and I cannot assent to your demand. The press is there--it is undefended--you can do as you think proper. _One of the Committee_.--All rests with you. We tell you what will follow your refusal, and, if you persist, all the responsibility must fall upon your shoulders. It is in your power to arrest the arm that is raised to give the blow. If you refuse to do so by a single expression, though it might cost you much, on you be all the consequences. _Dr. Bailey_.--You demand the sacrifice of a great right. You-- _One of the Committee (interrupting him_).--I know it is a hardship; but look at the consequences of your refusal. We do not come here to express our individual opinions. I would myself leave the District to-morrow, if in your place. We now ask of you, Shall this be done? We beg you will consider this matter in the light in which we view it. _Dr. Bailey_.--I am one man against many. But I cannot sacrifice any right that I possess. Those who have sent you here may do as they think proper. _One of the Committee_.--The whole community is against you. They say here is an evil that threatens them, and they ask you to remove that evil. You say "No!" and of course on your head be all the consequences. _Dr. Bailey_.--Let me remind you that we have been recently engaged in public rejoicings. For what have we rejoiced? Because the people in another land have arisen and triumphed over the despot, who had done--what? He did not demolish presses, but he imprisoned editors. In other words, he enslaved the press. Will you then present to America and the world-- _One of the Committee (interrupting him_).--If we could stop this movement, of the people, we would do it. But you make us unable to do so. We cannot tell how far it will go. After your press is pulled down, we do not know where they will go next. It is your duty, in such a case, to sacrifice your constitutional rights. _Dr. Bailey_.--I presume, when they shall have accomplished their object-- _Mr. Radcliff (interrupting)._--We advise you to be out of the way! The people think that your press endangers their property and their lives; and they have appointed us to tell you so, and ask you to remove it to-morrow. If you say that you will do so, they will retire satisfied. If you refuse, they say they will tear it down. Here is Mr. Boyle, a gentleman of property, and one of our oldest residents. You see that we are united. If you hold out and occupy your position, the men, women and children of the District will universally rise up against you. _Dr. Bailey (addressing himself to his father, a venerable man of more than eighty years of age, who approached the doorway and commenced remonstrating with the committee)_.--You do not understand the matter, father; these gentlemen are a committee appointed by a meeting assembled in front of the Patent Office. You need not address remonstrances to them. Gentlemen, you appreciate my position. I cannot surrender my rights. Were I to die for it, I cannot surrender my rights! Tell those who sent you hither that my press and my house are undefended--they must do as they see proper. I maintain my rights, and make no resistance! The committee then retired, and Dr. Bailey reëntered his dwelling. Meanwhile, the shouts of the mob, as they received the reports of the committee, were reëchoed along the streets. A fierce yell greeted the reäppearance of Radcliff in front of the Patent Office. He announced the result of the interview with the editor of the _Era_. Shouts, imprecations, blasphemy, burst from the crowd. "Down with the _Era_!" "Now for it!" "Gut the office!" were the exclamations heard on all sides, and the mob rushed tumultuously to Seventh-street. But a body of the city police had been stationed to guard the building, and the mob finally contented themselves with passing a resolution to pull it down the next day at ten o'clock, if the press was not meanwhile removed. That same afternoon, we three prisoners had been taken before three justices, who held a court within the jail for our examination. Mr. Hall appeared as our counsel. The examination was continued till the next day, when we were, all three of us, recommitted to jail, on a charge of stealing slaves, our bail being fixed at a thousand dollars for each slave, or seventy-six thousand dollars for each of us. Meanwhile, both houses of Congress became the scenes of very warm debates, growing out of circumstances connected with our case. In the Senate, Mr. Hale, agreeably to the notice he had given, asked leave to introduce a bill for the protection of property in the District of Columbia against the violence of mobs. This bill, as was stated in the debate, was copied, almost word for word, from a law in force in the State of Maryland (and many other states have--and all ought to have--a similar law), making the cities and towns liable for any property which might be destroyed in them by mob violence. In the House the subject came up on a question of privilege, raised by Mr. Palfrey, of Massachusetts, who offered a resolution for the appointment of a select committee to inquire into the currently-reported facts that a lawless mob had assembled during the two previous nights, setting at defiance the constituted authorities of the United States, and menacing members of Congress and other persons. In both those bodies the debate was very warm, as any one interested in it will find, by reading it in the columns of the _Congressional Globe_. It was upon this occasion, during the debate in the Senate, that Mr. Foote, then a senator from Mississippi, and now governor of that state, whose speech on the French revolution has been already quoted, threatened to join in lynching Mr. Hale, if he ever set foot in Mississippi, whither he invited him to come for that purpose. This part of the debate was so peculiar and so characteristic, showing so well the spirit with which the District of Columbia was then blazing against me, that I cannot help giving the following extract from Mr. Foote's speech, as contained in the official report: "All must see that the course of the senator from New Hampshire is calculated to embroil the confederacy--to put in peril our free institutions--to jeopardize that Union which our forefathers established, and which every pure patriot throughout the country desires shall be perpetuated. Can any man be a patriot who pursues such a course? Is he an enlightened friend of freedom, or even a judicious friend of those with whom he affects to sympathize, who adopts such a course? Who does not know that such men are, practically, the worst enemies of the slaves? I do not beseech the gentleman to stop; but, if he perseveres, he will awaken indignation everywhere, and it cannot be that enlightened men, who conscientiously belong to the faction at the north of which he is understood to be the head, can sanction or approve everything that he may do, under the influence of excitement, in this body. I will close by saying that, if he really wishes glory, and to be regarded as the great liberator of the blacks,--if he wishes to be particularly distinguished in this cause of emancipation, as it is called,--let him, instead of remaining here in the Senate of the United States, or instead of secreting himself in some dark corner of New Hampshire, where he may possibly escape the just indignation of good men throughout this republic,--let him visit the good State of Mississippi, in which I have the honor to reside, and no doubt he will be received with such shouts of joy as have rarely marked the reception of any individual in this day and generation. I invite him there, and will tell him, beforehand, in all honesty, that he could not go ten miles into the interior before he would grace one of the tallest trees in the forest, with a rope around his neck, with the approbation of every virtuous and patriotic citizen; and that, if necessary, I should myself assist in the operation!" Mr. Hale's reply was equally characteristic: "The honorable Senator invites me to visit the State of Mississippi, and kindly informs me that he would be one of those who would act the assassin, and put an end to my career. He would aid in bringing me to public execution,--no, death by a mob! Well, in return for his hospitable invitation, I can only express the desire that he would penetrate into some of the dark corners of New Hampshire; and, if he do, I am much mistaken if he would not find that the people in that benighted region would be very happy to listen to his arguments, and engage in an intellectual conflict with him, in which the truth might be elicited. I think, however, that the announcement which the honorable Senator has made on this floor of the fate which awaits so humble an individual as myself in the State of Mississippi must convince every one of the propriety of the high eulogium which he pronounced upon her, the other day, when he spoke of the high position which she occupied among the states of this confederacy.--But enough of this personal matter."[A] [Footnote A: The following paragraph, which has recently been going the rounds of the newspapers, will serve to show the sort of manners which prevail in the state so fitly represented by Mr. Foote, and how these southern ruffians experience in their own families the natural effect of the blood-thirsty sentiments which they so freely avow: "THE DEATH OF MR. CARNEAL.--The Vicksburg _Sentinel_, of the 13th ult., gives the following account of the shooting of Mr. Thomas Carneal, son-in-law of Governor Foote: "We have abstained thus long from giving any notice of the sad affair which resulted in the death of Mr. Thomas Carneal, the son-in-law of the governor of our state, that we might get the particulars. It seems that the steamer E.C. Watkins, with Mr. Carneal as a passenger, landed at or near the plantation of Judge James, in Washington county. Mr. Carneal had heard that the judge was an extremely brutal man to his slaves, and was likewise excited with liquor; and, upon the judge inviting him and others to take a drink with him, Carneal replied that he would not drink with a man who abused his negroes; this the judge resented as an insult, and high words ensued. "The company took their drink, however, all but Mr. Carneal, who went out upon the bow of the boat, and took a seat, where he was sought by Judge James, who desired satisfaction for the insult. Carneal refused to make any, and asked the old gentleman if any of his sons would resent the insult if he was to slap him in the mouth; to which the judge replied that he would do it himself, if his sons would not; whereupon Mr. Carneal struck him in the month with the back of his hand. The judge resented it by striking him across the head with a cane, which stunned Mr. Carneal very much, causing the blood to run freely from the wound. As soon as Carneal recovered from the wound, he drew a bowie-knife, and attacked the judge with it, inflicting several wounds upon his person, some of which were thought to be mortal. "Some gentlemen, in endeavoring to separate the combatants, were wounded by Carneal. When Judge James arrived at his house, bleeding, and in a dying state, as was thought, his son seized a double-barrelled gun, loaded it heavily with large shot, galloped to where the boat was, hitched his horse, and deliberately raised his gun to shoot Carneal, who was sitting upon a cotton-bale. Mr. James was warned not to fire, as Carneal was unarmed, and he might kill some innocent person. He took his gun from his shoulder, raised it again, and fired both barrels in succession, killing Carneal instantly. "It is a sad affair, and Carneal leaves, besides numerous friends, a most interesting and accomplished widow, to bewail his tragical end."] Such was the savage character of the debate, that even Mr. Calhoun, who was not generally discourteous, finding himself rather hard pressed by some of Mr. Hale's arguments, excused himself from an answer, on the ground that Mr. Hale was a maniac! The slave-holders set upon Mr. Hale with all their force; but, though they succeeded in voting down his bill, it was generally agreed, and anybody may see by the report, that he had altogether the best of the argument. Mr. Palfrey's resolution was also lost; but the boldness with which Giddings and others avowed their opinions, and the freedom of speech which they used on the subject of slavery, afforded abundant proof that the gagging system which had prevailed so long in Congress had come at last to an end. These movements, though the propositions of Messrs. Hale and Palfrey were voted down, were not without their effect. The Common Council of Washington appointed an acting mayor, in place of the regular mayor, who was sick. President Polk sent an intimation to the clerks of the departments, some of whom had been active in the mobs, that they had better mind their own business and stay at home. Something was said about marines from the Navy-Yard; and from that time the riotous spirit began to subside. Meanwhile, the unfortunate people who had attempted to escape in the Pearl had to pay the penalty of their love of freedom. A large number of them, as they were taken out of jail by the persons who claimed to be their owners, were handed over to the slave-traders. The following account of the departure of a portion of these victims for the southern market was given in a letter which appeared at the time in several northern newspapers: "_Washington, April_ 22, 1848. "Last evening, as I was passing the railroad dépôt, I saw a large number of colored people gathered round one of the cars, and, from manifestations of grief among some of them, I was induced to draw near and ascertain the cause of it. I found in the car towards which they were so eagerly gazing about fifty colored people, some of whom were nearly as white as myself. A majority of them were of the number who attempted to gain their liberty last week. About half of them were females, a few of whom had but a slight tinge of African blood in their veins, and were finely formed and beautiful. The men were ironed together, and the whole group looked sad and dejected. At each end of the car stood two ruffianly-looking personages, with large canes in their hands, and, if their countenances were an index of their hearts, they were the very impersonation of hardened villany itself. "In the middle of the car stood the notorious slave-dealer of Baltimore, Slatter, who, I learn, is a member of the Methodist church, 'in good and regular standing.' He had purchased the men and women around him, and was taking his departure for Georgia. While observing this old, gray-headed villain,--this dealer in the bodies and souls of men,--the chaplain of the Senate entered the car,--a Methodist brother,--and took his brother Slatter by the hand, chatted with him for some time, and seemed to view the heart-rending scene before him with as little concern as we should look upon cattle. I know not whether he came with a view to sanctify the act, and pronounce a parting blessing; but this I do know, that he justifies slavery, and denounces anti-slavery efforts as bitterly as do the most hardened slave-dealers. "A Presbyterian minister, who owned one of the fugitives, was the first to strike a bargain with Slatter, and make merchandise of God's image; and many of these poor victims, thus manacled and destined for the southern market, are regular members of the African Methodist church of this city. I did not hear whether they were permitted to get letters of dismission from the church, and of 'recommendation to any church where God, in his providence, might cast their lot.' Probably a certificate from Slatter to the effect that they are Christians will answer every purpose. No doubt he will demand a good price for slaves of this character. Perhaps brother Slicer furnished him with testimonials of their religious character, to help their sale in Georgia. I understand that he was accustomed to preach to them here, and especially to urge upon them obedience to their masters. "Some of the colored people outside, as well as in the car, were weeping most bitterly. I learned that many families were separated. Wives were there to take leave of their husbands, and husbands of their wives, children of their parents, brothers and sisters shaking hands perhaps for the last time, friends parting with friends, and the tenderest ties of humanity sundered at the single bid of the inhuman slave-broker before them. A husband, in the meridian of life, begged to see the partner of his bosom. He protested that she was free--that she had free papers, and was torn from him, and shut up in the jail. He clambered up to one of the windows of the car to see his wife, and, as she was reaching forward her hand to him, the black-hearted villain, Slatter, ordered him down. He did not obey. The husband and wife, with tears streaming down their cheeks, besought him to let them converse for a moment. But no! a monster more hideous, hardened and savage, than the blackest spirit of the pit, knocked him down from the car, and ordered him away. The bystanders could hardly restrain themselves from laying violent hands upon the brutes. This is but a faint description of that scene, which took place within a few rods of the capitol, under _enactments_ recognized by Congress. O! what a revolting scene to a feeling heart, and what a retribution awaits the actors! Will not these wailings of anguish reach the ears of the Most High? 'Vengeance is mine; I will repay, saith the Lord.'" Of those sent off at this time, several, through the generosity of charitable persons at the north, were subsequently redeemed, among whom were the Edmundson girls, of whom an account is given in the "Key to Uncle Tom's Cabin." From one of the women, who was not sold, but retained at Washington, I received a mark of kindness and remembrance for which I felt very grateful. She obtained admission to the jail, the Sunday after our committal, to see some of her late fellow-passengers still confined there; and, as she passed the passage in which I was confined, she called to me and handed a Bible through the gratings. I am happy to be able to add that she has since, upon a second trial, succeeded in effecting her escape, and that she is now a free woman. The great excitement which our attempt at emancipation had produced at Washington, and the rage and fury exhibited against us, had the effect to draw attention to our case, and to secure us sympathy and assistance on the part of persons wholly unknown to us. A public meeting was held in Faneuil Hall, in Boston, on the 25th of April, at which a committee was appointed, consisting of Samuel May, Samuel G. Howe, Samuel E. Sewell, Richard Hildreth, Robert Morris, Jr., Francis Jackson, Elizur Wright, Joseph Southwick, Walter Channing, J.W. Browne, Henry I. Bowditch, William F. Channing, Joshua P. Blanchard and Charles List, authorized to employ counsel and to collect money for the purpose of securing to us a fair trial, of which, without some interference from abroad, the existing state of public feeling in the District of Columbia seemed to afford little prospect. A correspondence was opened by this committee with the Hon. Horace Mann, then a representative in Congress from the State of Massachusetts, with ex-Governor Seward, of New York, with Salmon P. Chase, Esq., of Ohio, and with Gen. Fessenden, of Maine, all of whom volunteered their gratuitous services, should they be needed. A moderate subscription was promptly obtained, the larger part of it, as I am informed, through the liberality of Gerrit Smith, now a representative in Congress from New York, whose large pecuniary contributions to all philanthropic objects, as well as his zealous efforts in the same direction both with the tongue and the pen, have made him so conspicuous. He has, indeed, a unique way of spending his large fortune, without precedent, at least in this country, and not likely to find many imitators. The committee, being thus put in funds, deputed Mr. Hildreth, one of the members of it, to proceed to Washington to make the necessary arrangements. He arrived there toward the end of the month of May, by which time the public excitement against us, or at least the exterior signs of it, had a good deal subsided. But we were still treated with much rigor, being kept locked up in our cells, denied the use of the passage, and not allowed to see anybody, except when once in a while Mr. Giddings or Mr. Hall found an access to us; but even then we were not allowed to hold any conversation, except in the presence of the jailer. It may well be imagined that the news of my capture and imprisonment, and of the danger in which I seemed to be, had thrown my family into great distress. I also had suffered exceedingly on their account, several of the children being yet too young to shift for themselves. But I was presently relieved, by the information which I received before long, that during my imprisonment my family would be provided for. Warm remonstrances had been made to the judge of the criminal court by Mr. Hall against the attempt to exclude us from communication with our friends,--a liberty freely granted to all other prisoners. The judge declined to interfere; but Mr. Mann, having agreed to act as our counsel, was thenceforth freely admitted to interviews with us, without the presence of any keeper. Books and newspapers were furnished me by friends out of doors. I presently obtained a mattress, and the liberty of providing myself with better food than the jail allows. I continued to suffer a good deal of annoyance from the capricious insolence and tyranny of the marshal, Robert Wallace; but I intend to go more at length into the details of my prison experience after having first disposed of the legal proceedings against us. The feeling against me was no doubt greatly increased by the failure of the efforts repeatedly made to induce me to give up the names of those who had coöperated with me, and to turn states-evidence against them. There was a certain Mr. Taylor, from Boston, I believe, then in Washington, the inventor of a submarine armor for diving purposes. I had formerly been well acquainted with him, and, at a time when no friend of mine was allowed access to me, he made me repeated visits at the jail, at the request, as he said, of the District Attorney, to induce me to make a full disclosure, in which case it was intimated I should be let off very easy. As Mr. Taylor did not prevail with me, one of the jailers afterwards assured me that he was authorized to promise me a thousand dollars in case I would become a witness against those concerned with me. As I turned a deaf ear to all these propositions, the resolution seemed to be taken to make me and Sayres, and even English, suffer in a way to be a warning to all similar offenders. The laws under which we were to be tried were those of the State of Maryland as they stood previous to the year 1800. These laws had been temporarily continued in force over that part of the District ceded by Maryland (the whole of the present District) at the time that the jurisdiction of the United Spates commenced; and questions of more general interest, and the embarrassment growing out of the existence of slavery, having defeated all attempts at a revised code, these same old laws of Maryland still remain in force, though modified, in some respects, by acts of Congress. In an act of Maryland, passed in the year 1796, and in force in the District, there was a section which seemed to have been intended for precisely such cases as ours. It provided "That any person or persons who shall hereafter be convicted of giving a pass to any slave, or person held to service, or shall be found to assist, by advice, donation or loan, or otherwise, the transporting of any slave or any person held to service, from this state, or by any other unlawful means depriving a master or owner of the service of his slave or person held to service, for every such offence the party aggrieved shall recover damages in an action on the case, against such offender or offenders, and such offender or offenders shall also be liable, upon indictment, and conviction upon verdict, confession or otherwise, in this state, in any county court where such offence shall happen, to be fined a sum not exceeding two hundred dollars, at the discretion of the court, one-half to the use of the master or owner of such slave, the other half to the county school, if there be any; if there be no such school, to the use of the county." Accordingly, the grand jury, under the instructions of the District Attorney, found seventy-four indictments against each of us prisoners, based on this act, one for each of the slaves found on board the vessel, two excepted, who were runaways from Virginia, and the names of their masters not known. As it would have been possible to have fined us about, fifteen thousand dollars apiece upon these indictments, besides costs, and as, by the laws of the District, there is no method of discharging prisoners from jail who are unable to pay a fine, except by an executive pardon, one would have thought that this might have satisfied. But the idea that we should escape with a fine, though we might be kept in prison for life from inability to pay it, was very unsatisfactory. It was desired to make us out guilty of a penitentiary offence at the least; and for that purpose recourse was had to an old, forgotten act of Maryland, passed in the year 1737, the fourth section of which provided "That any person or persons who, after the said tenth day of September [1737], shall steal any ship, sloop, or other vessel whatsoever, out of any place within the body of any county within this province, of seventeen feet or upwards by the keel, and shall carry the same ten miles or upwards from the place whence it shall be stolen, _or who shall steal any negro or other slave_, or who shall counsel, hire, aid, abet, or command any person or persons to commit the said offences, or who shall be accessories to the said offences, and shall be thereof legally convicted as aforesaid, or outlawed, or who shall obstinately or of malice stand mute, or peremptorily challenge above twenty, shall suffer death as a felon, or felons, and be excluded the benefit of the clergy." They would have been delighted, no doubt, to hang us under this act; but that they could not do, as Congress, by an act passed in 1831, having changed the punishment of death, inflicted by the old Maryland statutes (except in certain cases specially provided for), into confinement in the penitentiary for not less than twenty years. To make sure of us at all events, not less than forty-one separate indictments (that being the number of the pretended owners) were found against each of us for stealing slaves. Our counsel afterwards made some complaint of this great number of indictments, when two against each of us, including all the separate charges in different counts, would have answered as well. It was even suggested that the fact that a fee of ten dollars was chargeable upon each indictment toward the five-thousand-dollar salary of the District Attorney might have something to do with this large number. But the District Attorney denied very strenuously being influenced by any such motive, maintaining, in the face of authorities produced against him, that this great number was necessary. He thought it safest, I suppose, instead of a single jury on each charge against each of us, to have the chance of a much greater number, and the advantage, besides, of repeated opportunities of correcting such blunders, mistakes and neglects, as the prisoner's counsel might point out. On the 6th of July, I was arraigned in the criminal court, Judge Crawford presiding, on one of the larceny indictments, to which I pleaded not guilty; whereupon my counsel, Messrs. Hall and Mann, moved the court for a continuance till the next term, alleging the prevailing public excitement, and the want of time to prepare the defence and to procure additional counsel. But the judge could only be persuaded, and that with difficulty, to delay the trial for eighteen days. When this unexpected information was communicated to the committee at Boston, a correspondence was opened by telegraph with Messrs. Seward, Chase and Fessenden. But Governor Seward had a legal engagement at Baltimore on the very day appointed for the commencement of the trial, and the other two gentlemen had indispensable engagements in the courts of Ohio and Maine. Under these circumstances, as Mr. Hall was not willing to take the responsibility of acting as counsel in the case, and as it seemed necessary to have some one familiar with the local practice, the Boston committee retained the services of J.M. Carlisle, Esq., of the Washington bar, and Mr. Hildreth again proceeded to Washington to give his assistance. Just as the trial was about to commence, Mr. Carlisle being taken sick, the judge was, with great difficulty, prevailed upon to grant a further delay of three days. This delay was very warmly opposed, not only by the District Attorney, but by the same Mr. Radcliff whom we have seen figuring as chairman of the mob-committee to wait on Dr. Bailey, and who had been retained, at an expense of two hundred dollars, by the friends of English, as counsel for him, they thinking it safest not to have his defence mixed up in any way with that of myself and Sayres. Before the three days were out, Governor Seward, having finished his business in Baltimore, hastened to Washington; but, as the rules of the court did not allow more than two counsel to speak on one side, the other counsel being also fully prepared, it was judged best to proceed as had been arranged. The trials accordingly commenced on Thursday, the 27th of July, upon an indictment against me for stealing two slaves, the property of one Andrew Houver. The District Attorney, in opening his case, which he did in a very dogmatic, overbearing and violent manner, declared that this was no common affair. The rights of property were violated by every larceny, but this case was peculiar and enormous. Other kinds of property were protected by their want of intelligence; but the intelligence of this kind of property greatly diminished the security of its possession. The jury therefore were to give such a construction to the laws and the facts as to subject violators of it to the most serious consequences. The facts which seemed to be relied upon by the District Attorney as establishing the alleged larceny were--that I had come to Washington, and staid from Monday to Saturday, without any ostensible business, when I had sailed away with seventy-six slaves on board, concealed under the hatches, and the hatches battened down; and that when pursued and overtaken the slaves were found on board with provisions enough for a month. It is true that Houver swore that the hatches were battened down when the Pearl was overtaken by the steamer; but in this he was contradicted by every other government witness. This Houver was, according to some of the other witnesses, in a considerable state of excitement, and at the time of the capture he addressed some violent language to me, as already related. He had sold his two boys, after their recapture, to the slave-traders; but had been obliged to buy them back again, at a loss of one hundred dollars, by the remonstrances of his wife, who did not like to part with them, as they had been raised in the family. Perhaps this circumstance made him the more inveterate against me. As to the schooner being provisioned for a month, the bill of the provisions on board, purchased in Washington, was produced on the trial, and they were found to amount to three bushels of meal, two hundred and six pounds of pork, and fifteen gallons of molasses, which, with a barrel of bread, purchased in Alexandria, would make rather a short month's supply for seventy-nine persons! It was also proved, by the government witnesses, that the Pearl was a mere bay-craft, not fit to go to sea; which did not agree very well with the idea held out by the District Attorney, that I intended to run these negroes off to the West Indies, and to sell them there. But, to make up for these deficiencies, Williams, who acted as the leader of the steamer expedition, swore that I had said, while on board, that if I had got off with the negroes I should have made an independent fortune; but on the next trial he could not say whether it was I who told him so, or whether somebody else told him that I had said so. Orme and Craig, with whom I principally conversed, and who went into long details, recollected nothing of the sort; and it is very certain that, as there was no foundation for it, and no motive for such a statement on my part, I never made it. Williams, perhaps, had heard somebody guess that, if I had got off, I had slaves enough to make me independent; and that guess of somebody else he perhaps remembered, or seemed to remember, as something said by me, or reported to have been said by me; and such often, in cases producing great public excitement, is the sort of evidence upon which men's lives or liberty is sworn away. The idea, however, of an intention to run the negroes off for sale, seemed principally to rest on the testimony of a certain Captain Baker, who had navigated the steamer by which we were captured at the mouth of the Potomac, and who saw, as he was crossing over to Coan river for wood, a long, black, suspicious-looking brig, with her sails loose, lying at anchor under Point Lookout, about three miles from our vessel. This was proved, by other witnesses, to be a very common place of anchorage; in fact, that it was common for vessels waiting for the wind, or otherwise, to anchor anywhere along the shores of the bay. But Captain Baker thought otherwise; and he and the District Attorney wished the jury to infer that this brig seen by him under Point Lookout was a piratical craft, lying ready to receive the negroes on board, and to carry them off to Cuba! Besides Houver, Williams, Orme, Craig and Baker, another witness was called to testify as to the sale of the wood, and my having been in Washington the previous summer. Many questions as to evidence arose, and the examination of these witnesses consumed about two days and a half. In opening the defence, Mr. Mann commenced with some remarks on the peculiarity of his position, growing out of the unexpected urgency with which the case had been pushed to a trial, and the public excitement which had been produced by it. He also alluded to the hardship of finding against me such a multiplicity of indictments,--for what individual, however innocent, could stand up against such an accumulated series of prosecutions, backed by all the force of the nation? Some observations on the costs thus unnecessarily accumulated, and, in particular, on the District Attorney's ten-dollar fees, produced a great excitement, and loud denials on the part of that officer. Mr. Mann then proceeded to remark that, in all criminal trials which he had ever before attended or heard of, the prosecuting officer had stated and produced to the jury, in his opening, the law alleged to be violated. As the District Attorney had done nothing of that sort, he must endeavor to do it for him. Mr. Mann then proceeded to call the attention of the jury to the two laws already quoted, upon which the two sets of indictments were founded. Of both these acts charged against me--the stealing of Houver's slaves, and the helping them to escape from their master--I could not be guilty. The real question in this case was, Which had I done? To make the act stealing, there must have been--so Mr. Mann maintained--a taking _lucri causa_, as the lawyers say; that is, a design on my part to appropriate these slaves to my own use, as my own property. If the object was merely to help them to escape to a free state, then the case plainly came under the other statute. In going on to show how likely it was that the persons on board the Pearl might have desired and sought to escape, independently of any solicitations or suggestions on my part, Mr. Mann alluded to the meeting in honor of the French revolution, already mentioned, held the very night of the arrival of the Pearl at Washington. As he was proceeding to read certain extracts from the speech of Senator Foote on that occasion, already quoted, and well calculated, as he suggested, to put ideas of freedom and emancipation into the heads of the slaves, he was suddenly interrupted by the judge, when the following curious dialogue occurred: "_Judge Crawford_.--A certain latitude is to be allowed to counsel in this case; but I cannot permit any harangue against slavery to be delivered here. "_Carlisle (rising suddenly and stepping forward_).--I am sure your honor must be laboring under some strange misapprehension. Born and bred and expecting to live and die in a slave-holding community, and entertaining no ideas different from those, which commonly prevail here, I have watched the course of my associate's argument with the closest attention. The point he is making, I am sure, is most pertinent to the case,--a point it would be cowardice in the prisoner's counsel not to make; and I must beg your honor to deliberate well before you undertake to stop the mouths of counsel, and to take care that you have full constitutional warrant for doing so. "_Judge Crawford_.--I can't permit an harangue against slavery." Mr. Mann proceeded to explain the point at which he was aiming. He had read these extracts from Mr. Foote's speech, delivered to a miscellaneous collection of blacks and whites, bond and free, assembled before the _Union_ office, as showing to what exciting influences the slaves of the District were exposed, independently of any particular pains taken by anybody to make them discontented; and, with the same object in view, he proposed to read some further extracts from other speeches delivered on the same occasion. "_District Attorney_.--If this matter is put in as evidence, it must first be proved that such speeches were delivered. "_Mann_.--If the authenticity of the speeches is denied, I will call the Honorable Mr. Foote to prove it. "_District Attorney_.--What newspaper is that from which the counsel reads? "_Mann_ (_holding it up_).--The Washington _Union_, of April 19th." And, without further objection, he proceeded to read some further extracts. He concluded by urging upon the jury that this case was to be viewed merely as an attempt of certain slaves to escape from their masters, and on my part an attempt to assist them in so doing; and therefore a case under the statute of 1796, punishable with fine; and not a larceny, as charged against me in this indictment. Several witnesses were called who had known me in Philadelphia, to testify as to my good character. The District Attorney was very anxious to get out of these witnesses whether they had never heard me spoken of as a man likely to run away with slaves? And it did come out from one of them that, from the tenor of my conversation, it used sometimes to be talked over, that one day or other it "would heave up" that I had helped off some negro to a free state. But these conversations, the witness added, were generally in a jesting tone; and another witness stated that the charge of running off slaves was a common joke among the watermen. According to the practice in the Maryland criminal courts,--and the same practice prevails in the District of Columbia,--the judge does not address the jury at all. After the evidence is all in, the counsel, before arguing the case, may call upon the judge to give to the jury instructions as to the law. These instructions, which are offered in writing, and argued by the counsel, the judge can give or refuse, as he sees fit, or can alter them to suit himself; but any such refusal or alteration furnishes ground for a bill of exceptions, on which the case, if a verdict is given against the prisoner, may be carried by writ of error before the Circuit Court of the District, for their revisal. My counsel asked of the judge no less than fourteen instructions on different points of law, ten of which the judge refused to give, and modified to suit himself. Several of these related to the true definition of theft, or what it was that makes a taking larceny. It was contended by my counsel, and they asked the judge to instruct the jury, that, to convict me of larceny, it must be proved that the taking the slaves on board the Pearl was with the intent to convert them to my own use, and to derive a gain from such conversion; and that, if they believed that the slaves were received on board with the design to help them to escape to a free state, then the offence was not larceny, but a violation of the statute of 1796. This instruction, variously put, was six times over asked of the judge, and as often refused. He was no less anxious than the District Attorney to convict me of larceny, and send me to the penitentiary. But, having a vast deal more sense than the District Attorney, he saw that the idea that I had carried off these negroes to sell them again for my own profit was not tenable. It was plain enough that my intention was to help them to escape. The judge therefore, who did not lack ingenuity, went to work to twist the law so as, if possible, to bring my case within it. Even he did not venture to say that merely to assist slaves to escape was stealing. Stealing, he admitted, must be a taking, _lucri causa_, for the sake of gain; but--so he told the jury in one of his instructions--"this desire of gain need not be to convert the article taken to his--the taker's--own use, nor to obtain for the thief the value in money of the thing stolen. If the act was prompted by a desire to obtain for himself, or another even, other than the owner, a money gain, or any other inducing advantage, a dishonest gain, then the act was a larceny." And, in another instruction, he told the jury, "that if they believed, from the evidence, that the prisoner, before receiving the slaves on board, imbued their minds with discontent, persuaded them to go with him, and, by corrupt influences and inducements, caused them to come to his ship, and then took and carried them down the river, then the act was a larceny." Upon these instructions of the judge, to which bills of exceptions were filed by my counsel, the case, which had been already near a week on trial, was argued to the jury. The District Attorney had the opening and the close, and both my counsel had the privilege of speaking. For the following sketch of the argument, as well as of the legal points already noted, I am indebted to the notes of Mr. Hildreth, taken at the time: "_District Attorney_.--I shall endeavor to be very brief in the opening, reserving myself till I know the grounds of defence. It is the duty of the jury to give their verdict according to the law and evidence; and, so far as I knew public opinion, there neither exists now, nor has existed at any other time, the slightest desire on the part of a single individual that the prisoner should have otherwise than a fair trial. I think, therefore, the solemn warnings by the prisoner's counsel to the jury were wholly uncalled for. There was, no doubt, an excitement out of doors,--a natural excitement,--at such an amount of property snatched up at one fell swoop; but was that to justify the suggestion to a jury of twelve honest men that they were not to act the part of a mob? The learned counsel who opened the case for the prisoner has alluded to the disadvantage of his position from the fact that he was a stranger. I acknowledge that disadvantage, and I have attempted to remedy it, and so has the court, by extending towards him every possible courtesy. "The prisoner's counsel seems to think I press this matter too hard. But am I to sit coolly by and see the hard-earned property of the inhabitants of this District carried off, and when the felon is brought into court not do my best to secure his conviction? [The District Attorney here went into a long and labored defence of the course he had taken in preferring against the prisoner forty-one indictments for larceny, and seventy-four others, on the same state of facts, for transportation. He denied that the forty-one larcenies of the property of different individuals could be included in one indictment, and declared that if the prisoner's counsel would show the slightest authority for it he would give up the case. After going on in this strain for an hour or more, attacking the opposite counsel and defending himself, in what Carlisle pronounced 'the most extraordinary opening argument he had ever heard in his life,' the District Attorney came down at last to the facts of the case."] "In what position is the prisoner placed by the evidence? How is he introduced to the jury by his Philadelphia friends? These witnesses were examined as to his character, and the substance of their testimony is, that he is a man who would steal a negro if he got a chance. He passed for honest otherwise. But he says himself he would steal a negro to liberate him, and the court says it makes no difference whether he steals to liberate or steals to sell. Being caught in the act, he acknowledges his guilt, and says he was a deserter from his God,--a backslider,--a church-member one year--the next, in the Potomac with a schooner, stealing seventy-four negroes! Why say he took them for gain, if he did not steal them? Why say he knew he should end his days in a penitentiary? Why say if he got off with the negroes he should have realized an independent fortune? Did he not know they were slaves? He chartered the vessel to carry off negroes; and, if they were free negroes, or he supposed them to be, how was he to realize an independent fortune? He was afraid of the excitement at Washington. Why so, if the negroes were not slaves? There was the fact of their being under the hatches, concealed in the hold of the vessel,--did not that prove he meant to steal them? Add to that the other fact of his leaving at night. He comes here with a miserable load of wood; gives it away; sells it for a note; did not care about the wood, wanted only to get it out; had a longing for a cargo of negroes. The wood was a blind; besides he lied about it;--would he have ever come back to collect his note? But the prisoner's counsel says the slaves might have heard Mr. Foote's torch-light oration, and so have been persuaded to go. A likely story! They all started off, I suppose, ran straight down to the vessel and got into the hold! Seventy-four negroes all together! But was not the vessel chartered in Philadelphia to carry off negroes? This shows the excessive weakness of the defence. And how did the slaves behave after they were captured? If they had been running away, would they not have been downcast and disheartened? Would not they have said, Now we are taken? On the other hand, according to the testimony of Major Williams, on their way back they were laughing, shouting and eating molasses in large quantities. Nero fiddled when Rome was burning, but did not eat molasses. What a transition, from liberty to molasses! "Then it is proved that the bulkhead between the cabin and the hold was knocked down, and that the slaves went to Drayton and asked if they should fight. Did not that show his authority over them,--that the slaves were under his control, and that he was the master-spirit? It speaks volumes. [Here followed a long eulogy on the gallantry and humanity of the thirty-five captors. One man did threaten a little, but he was drunk.] "The substance of the law, as laid down by the judge, is this: If Drayton came here to carry off these people, and, by machinations, prevailed on them to go with him, and knew they were slaves, it makes no difference whether he took them to liberate, or took them to sell. If he was to be paid for carrying them away, that was gain enough. Suppose a man were to take it into his head that the northern factories were very bad things for the health of the factory-girls, and were to go with a schooner for the purpose of liberating those poor devils by stealing the spindles, would not he be served as this prisoner is served here? Would they not exhaust the law-books to find the severest punishment? There may be those carried so far by a miserable mistaken philanthropy as even to steal slaves for the sake of setting them at liberty. But this prisoner says he did it for gain. We might look upon him with some respect if, in a manly style, he insisted on his right to liberate them. But he avowedly steals for gain. He lies about it, besides. Even a jury of abolitionists would have no sympathy for such a man. Try him anyhow, by the word of God--by the rules of common honesty--he would be convicted, anyhow. He is presented to the world at large as a rogue and a common thief and liar. There can be no other conception of him. He did it for dishonest gain. "The prisoner must be convicted. He cannot escape. There can be no manner of doubt as to his guilt. I am at a loss, without appearing absurd in my own eyes, to conceive what kind of a defence can be made. "I have not the least sort of feeling against the wretch himself,--I desire a conviction from principle. I have heard doctrines asserted on this trial that strike directly at the rights and liberty of southern citizens. I have heard counsel seeking to establish principles that strike directly at the security of southern property. I feel no desire that this man, as a man, should be convicted; but I do desire that all persons inclined to infringe on our rights of property should know that there is a law hero to punish them, and I am happy that the law has been so clearly laid down by the court. Let it be known from Maine to Texas, to earth's widest limits, that we have officers and juries to execute that law, no matter by whom it may be violated! "_Mann_--for the prisoner--regretted to occupy any more of the jury's time with this very protracted trial. I mentioned, some days since, that the prisoner was liable, under the indictments against him, to eight hundred years imprisonment,--a term hardly to be served out by Methuselah himself; but, apart from any punishment, if his hundred and twenty-five trials are to proceed at this rate, the chance is he will die without ever reaching their termination. The District Attorney has dwelt at great length on what passed the other day, and more than once he has pointedly referred to me, in a tone and manner not to be mistaken. I have endeavored to conduct this trial according to the principles of law, and to that standard I mean to come up. My client, though a prisoner at this bar, has rights, legal, social, human; and upon those rights I mean to insist. This is the first time in my life that I ever heard a prisoner on trial, and before conviction, denounced as a liar, a thief, a felon, a wretch, a rogue. It is unjust to apply these terms to any man on trial. The law presumes him to be innocent. The feelings of the prisoner ought not to be thus outraged. He is unfortunate; he may be guilty; that is the very point you are to try. "This prisoner is charged with stealing two slaves, the property of Andrew Houver. Did he, or not? That point you are to try by the law and the evidence. Because you may esteem this a peculiarly valuable kind of property, you are not to measure out in this case a peculiar kind of justice. You have heard the evidence; the law for the purposes of this trial you are to take from the judge. But you are not to be led away with the idea that you must convict this prisoner at any rate. It is a well-established principle that it is better for an indefinite number of guilty men to escape than for one innocent man to be convicted and punished; and for the best of reasons,--for to have the very machinery established for the protection of right turned into an instrument for the infliction of wrong, strikes a more fatal blow at civil society than any number of unpunished private injuries. "Nor is there any danger that the prisoner will escape due punishment for any crimes he may have committed. Besides this and forty other larceny indictments hanging over his head, there are seventy-four transportation indictments against him. Now, he cannot be guilty of both; and which of these offences, if either, does the evidence against him prove? "Who is this man? Look at him! You see he has passed the meridian of life. You have heard about him from his neighbors. They pronounce him a fair, upright, moral man. No suspicion hitherto was ever breathed against his honesty. He was a professor of religion, and, so far as we know, had walked in all the ordinances and commands of the law blameless. Now, in all cases of doubt, a fair and exemplary character, especially in an elderly man, is a great capital to begin with. This prisoner may have been mistaken in his views as to matters of human right; but, as to violating what he believed to be duty, there is not the slightest evidence that such was his character, but abundance to the contrary. He is found under circumstances that make him amenable to the law; let him be tried,--I do not gainsay that; but let him have the common sentiments of humanity extended toward him, even if he be guilty. "The point urged against him with such earnestness--I may say vehemence--is, not that he took the slaves merely, but that he took them with design to steal. His confessions are dwelt upon, stated and overstated, as you will recollect. But consider under what circumstances these alleged confessions were made. There are circumstances which make such statements very fallacious. Consider his excitement--his state of health; for it is in evidence that he had been out of health, suffering with some disorder which required his head to be shaved. Consider the armed men that surrounded him, and the imminent peril in which he believed his life to be. It is great injustice to brand him with the foul epithet of liar for any little discrepancies, if such there were, in statements made under such circumstances. Other matters have been forced in, of a most extraordinary character, to prejudice his case in your eyes. It has been suggested--the idea has been thrown out, again and again--that, under pretence of helping them to freedom, he meant to sell these negroes. This suggestion, which outruns all reason and discretion, is founded on the simple fact of a brig seen lying at anchor in a place of common anchorage, suggesting no suspicious appearance, but as to which you are asked to infer that these seventy-six slaves were to be transported into her, and carried to Cuba or elsewhere for sale. What a monstrous imagination! What a gross libel on that brig, her officers, her crew, her owners, all of whom are thus charged as kidnappers and pirates; and all this baseless dream got up for the purpose of influencing your minds against the prisoner! It marks, indeed, with many other things, the style in which this prosecution is conducted. "Take the law as laid down by the court, and it is necessary for the government to prove, if this indictment is to be sustained, that the prisoner corrupted the minds of Houver's slaves, and induced and persuaded them to go on board his vessel. They were found on board the prisoner's vessel, no doubt; but as to how they came there we have not a particle of evidence. Here is a gap, a fatal gap, in the government's case. By what second-sight are you to look into this void space and time, and to say that Drayton enticed them to go on board? [The counsel here read from 1 _Starkie on Evidence,_ 510, &c., to the effect that the prosecution are bound by the evidence to exclude every hypothesis inconsistent with the prisoner's guilt.] Now, is it the only possible means of accounting for the presence of Houver's slaves on board to suppose that this prisoner enticed them? Might not somebody else have done it? Might they not have gone without being enticed at all? We wished to call the slaves themselves as witnesses, but the law shuts up their mouths. Can you, without any evidence, say that Drayton enticed them, and that by no other means could they come onboard? Presumptive evidence, as laid down in the book--an acknowledged and unquestioned authority--from which I have read, ought to be equally strong with the evidence of one unimpeached witness swearing positively to the fact. Are you as sure that Drayton enticed those slaves as if that fact had been positively sworn to by one witness, testifying that he stood by and saw and heard it? If you are not, then, under the law as laid down by the court, you can not find him guilty. "_Thursday, Aug_. 13. "_Carlisle_, for the prisoner.--The sun under which we draw our breath, the soil we tottle over, in childhood, the air we breathe, the objects that earliest attract our attention, the whole system of things with which our youth is surrounded, impress firmly upon us ideas and sentiments which cling to us to our latest breath, and modify all our views. I trust I am man enough always to remember this, when I hear opinions expressed and views maintained by men educated under a system different from that prevailing here, no matter how contrary those views and opinions may be to my own. "It may surprise those of you who know me,--the moral atmosphere in which I have grown up, and the opinions which I entertain,--but never have I felt so deep and hearty an interest in the defence of any case as in this. This prisoner I never saw till I came from a sick bed into this court, when I met him for the first time. I had participated strongly in the feeling which in connection with him had been excited in this community. As you well know, I have and could have no sympathy with the motives by which he may be presumed to have been actuated. Why, then, this sudden feeling in his behalf? Not, I assure you, from mercenary motives. His acquittal or his condemnation will make no difference in the compensation I receive for my services. The overpowering interest I feel in this case originates in the fact that it places at stake the reputation of this District, and, in some respects, of the country itself, of which this city is the political capital. The counsel for the government has dwelt with emphasis on the great amount and value of property placed at hazard by this prisoner. There is something, however, far more valuable than property--a fair, honorable, impartial administration of justice; and of the chivalrous race of the south it may be expected that they will do justice, though the heavens fall! God forbid that the world should point to this trial as a proof that we are so besotted by passion and interest that we cannot discern the most obvious distinctions and that on a slave question with a jury of slave-holders there is no possible chance of justice! Many, I assure you, will be ready to fasten this charge upon us. It is my hope, my ardent desire, it is your sworn duty, that no step be taken against this prisoner without full warrant of law and evidence. The duty of defence I discharge with pleasure. I could have desired that this prisoner might have been defended entirely by counsel resident in this District. It would have been my pride to have shown to the world that of our own mere motion we would do justice in any case, no matter how delicate, no matter how sore the point the prisoner had touched. "My learned friend, the District Attorney, has alluded to the courtesy which he and the court have extended to my associate in this cause. I hope he does not plume himself upon that. A gentleman of my associate's learning, ability, unexceptionable deportment, and high character among his own people, must and will be treated with courtesy wherever he goes. But, at the same time that he boasts of his courtesy, the District Attorney takes occasion to charge my associate with gross ignorance of the law. He says the forty-one charges could not have been included in one indictment, and offers to give up the case if we will produce a single authority to that effect. It were easy to produce the authority [see 1 _Chitty_, C.L. Indictment], but, unfortunately, the District Attorney has made a promise which he can't fulfil. The District Attorney is mistaken in this matter; at the same time, let me admit that in the management of this case he has displayed an ability beyond his years. This is the first prosecution ever brought, so far as we can discover, on this slave-stealing statute, either in this District or in Maryland. This statute, of the existence of which few lawyers were aware,--I am sure I was not,--has been waked up, after a slumber of more than a century, and brought to bear upon my client. It is your duty to go into the examination of this novel case temperately and carefully; to take care that no man and no court, upon review of the case, shall be able to say that your verdict is not warranted by the evidence. If the case is made out against the prisoner, convict him; but if not, as you value the reputation of the District and your own souls, beware how you give a verdict against him! "You are not a lynch-law court. It is no part of your business to inquire whether the prisoner has done wrong, and if so to punish him for it. It is your sole business to inquire if he be guilty of this, special charge set forth against him in this indictment, of stealing Andrew Houver's two slaves. The law you are not expected to judge of; to enlighten you on that matter, we have prayed instructions from the court, and those instructions, for the purpose of this trial, are to be taken as the law. The question for you is, Does the evidence in this case bring the prisoner within the law as laid down by the court? To bring him within that law, you are not to go upon imagination, but upon facts proved by witnesses; and, it seems to me, you have a very plain duty before you. This is not a thing done in a corner. Take care that you render such a verdict that you will not be ashamed to have it set forth in letters of light, visible to all the world. "There are two offences established by the statutes of Maryland, between which, in this case, it becomes your duty to distinguish. Everything depends on these statutes, because without these statutes neither act is a crime. At common law, there are no such offences as stealing slaves, or transporting slaves. Now, which of these two acts is proved against this prisoner? In some respects they are alike. The carrying the slaves away, the depriving the master of their services, is common to both. But, to constitute the stealing of slaves, according to the law as laid down by the court, there must be something more yet. There must be a corruption of the minds of the slaves, and a seducing them to leave their masters' service. And does not this open a plain path for this prisoner out of the danger of this prosecution? Where is the least evidence that the prisoner seduced these slaves, and induced them to leave their masters? Has the District Attorney, with all his zeal, pointed out a single particle of evidence of that sort? Has he done anything to take this case out of the transportation statute, and to convert it into a case of stealing? He has, to be sure, indulged in some very harsh epithets applied to this prisoner,--epithets very similar to those which Lord Coke indulged in on the trial of Sir Walter Raleigh, and which drew out on the part of that prisoner a memorable retort. My client is not a Raleigh; but neither, I must be permitted to say, is the District Attorney a Lord Coke. I should be sorry to have it go abroad that we cannot try a man for an offence of this sort without calling him a liar, a rogue, a wretch. [The District Attorney here interrupted, with a good deal of warmth. He insisted that he did not address the prisoner, but the jury, and that it was his right to call the attention of the jury to the evidence proving the prisoner to be a liar, rogue and wretch.] _Carlisle_--I do not dispute the learned gentleman's right. It is a matter of taste; but with you, gentlemen of the jury, these harsh epithets are not to make the difference of a hair. You are to look at the evidence; and where is the evidence that the prisoner seduced and enticed these slaves? "It may happen to any man to have a runaway slave in his premises, and even in his employment. It happened to me to have in my employ a runaway,--one of the best servants, by the way, I ever had. He told me he was free, and I employed him as such. If I had happened to have taken him to Baltimore, there would have been a complete similitude to the case at bar, and, according to the District Attorney's logic, I might have been indicted for stealing. Because I had him with me, I am to be presumed to have enticed him from his master! As to the particular circumstances under which he came into my employment, I might have been wholly unable to show them. Is it not possible to suppose a great number of circumstances under which these slaves of Houver left their master's service and came on board the Pearl, without any agency on the part of this prisoner? Now, the government might positively disprove and exclude forty such suppositions; but, so long as one remained which was not excluded, you cannot find a verdict of conviction. The government is to prove that the prisoner enticed and seduced these negroes, and you have no right to presume he did so unless every other possible explanation of the case is positively excluded by the testimony. Is it so extravagant a supposition that Mr. Foote's speech, and the other torch-light speeches heretofore alluded to, heard by these slaves, or communicated to them, might have so wrought upon their minds as to induce them to leave their masters? I don't say that they had any right to suppose that these declamations about universal emancipation had any reference to them. I am a southern man, and I hold to the southern doctrine. I admit that there is no inconsistency between perfect civil liberty and holding people of another race in domestic servitude. But then it is natural that these people should overlook this distinction, however obvious and important. Nor do they lack wit to apply these speeches to their own case or interest in such matters. I myself have a slave as quick to see distinctions as I am, and who would have made a better lawyer if he had had the same advantages. It came out the other day, in a trial in this court, that the colored people have debating-societies among themselves. It was an assault and battery case; one of the disputants, in the heat of the argument, struck the other; but then they have precedents for that in the House of Representatives. Is it an impossible, or improbable, or a disproved supposition, that a number of slaves, having agreed together to desert their masters, or having concerted such a plan with somebody here, Drayton was employed to come and take them away, and that he received them on board without ever having seen one of them? If his confessions are to be taken at all, they are to be taken together; and do they not tend to prove such a state of facts? Drayton says he was hired to come here,--that he was to be paid for taking them away. Does that look as if he seduced them? [The counsel here commented at length on Drayton's statements, for the purpose of showing that they tended to prove nothing more than a transportation for hire; and he threw no little ridicule on the 'phantom ship' which the District Attorney had conjured up in his opening of the case, but which, in his late speech, he had wholly overlooked.] "But, even should you find that Drayton seduced these slaves to leave their masters, to make out a case of larceny you must be satisfied that he took them into his possession. Now, what is possession of a slave? Not merely being in company with him. If I ride in a hack, I am not in possession of the driver. Possession of a slave is dominion and control; and where is the slightest evidence that this prisoner claimed any dominion or control over these slaves? The whole question in this case is, Were these slaves stolen, or were they running away with the prisoner's assistance? The mere fact of their being in the prisoner's company throws no light whatever on this matter. "The great point, however, in this case is this,--By the judge's instructions, enticement must be proved. Shall the record of this trial go forth to the world showing that you have found a fact of which there was no evidence? "I believe in my conscience there is a gap in this evidence not to be filled up except by passion and prejudice. If that is so, I hope there is no one so ungenerous, so little of a true southerner, as to blame me for my zeal in this case, or not to rejoice in a verdict of acquittal. It is bad enough that strangers should have got up a mob in this District in relation to this matter. It would, however, be a million times worse if juries cannot be found here cool and dispassionate enough to render impartial verdicts. "_District Attorney_.--I hope, gentlemen of the jury, you will rise above all out-of-door influence. Make yourselves abolitionists, if you can; but look at the facts of the case. And, looking at those facts, is it necessary for me to open my lips in reply? In a case like this, sustained by such direct testimony, such overwhelming proof, I defy any man,--however crazy on the subject of slavery, unless he be blinded by some film of interest,--to hesitate a moment as to his conclusions. [The District Attorney here proceeded at great length, and with a great air of offended dignity, to complain of having been schooled and advised by the prisoner's counsel, and to justify the use of the foul epithets he had bestowed on the prisoner.] This is not a place for parlor talk. I had chosen the English words that conveyed my meaning most distinctly. It was all very well for the prisoner's counsel to smooth things over; but was I, instead of calling him a liar, to say, he told a fib? When I call him a thief and a felon, do I go beyond the charge of the grand jury in the indictment? If this is stepping over the limits of propriety, in all similar cases I shall do the same. I do not intend to blackguard the prisoner,--I do not delight in using these epithets. My heart is not locked up; I am no Jack Ketch, prosecuting criminals for ten dollars a head. I sympathize with the wretches brought here; but when I choose to call them by their proper names I am not to be accused of bandying epithets. [The District Attorney then proceeded also at great length, and in a high key, to justify his hundred and twenty-five indictments against the prisoner, and to clear himself from the imputation of mercenary motives, on the ground that the business of the year, independently of these indictments, would furnish the utmost amount to which he was entitled. He next referred to the matter of the brig testified to by Captain Baker, which had been made the occasion of much ridicule by the prisoner's counsel. Part of the evidence which he had relied on in connection with the brig had been ruled out; and the law, as laid down by the court, according to which taking to liberate was the same as taking to steal, had made it unnecessary for him, so he said, to dwell on this part of the case. Yet he now proceeded to argue at great length, from the testimony in the case, that there must have been a connection between the brig and the schooner; that, as the schooner was confessedly unseaworthy, and could not have gone out of the bay, it must have been the intention to put the slaves on board the brig, and to carry them off to Cuba or elsewhere and sell them. The testimony to this effect he pronounced conclusive.] "The United States (said the District Attorney) have laid before you the clearest possible case. I have just gone through a pretty long term of this court; I see several familiar faces on the jury, and I rely on your intelligence. In fact, the only point of the defence is, that the United States have offered no proof that Drayton seduced and enticed these slaves to come on board the Pearl; and that the prisoner's counsel are pleased to call a gap, a chasm, which they say you can't fill up. It is the same gap which occurs in every larceny case. Where can the government produce positive testimony to the taking? That is done secretly, in the dark, and is to be presumed from circumstances. A man is found going off with a bag of chickens,--your chickens. Are you going to presume that the chickens run into his bag of their own accord, and without his agency? A man is found riding your horse. Are you to presume that the horse came to him of its own accord? and yet horses love liberty,--they love to kick up their heels and run. Yet this would be just as sensible as to suppose that these slaves came on board Drayton's vessel without his direct agency. He came here from Philadelphia for them; they are found on board his vessel; Drayton says he would steal a negro if he could; is not that enough? Then he was here some months before with an oyster-boat, pretending to sell oysters. He pretended that he came for his health. Likely story, indeed! I should like to see the doctor who would recommend a patient to come here in the fall of the year, when the fever and ague is so thick in the marshes that you can cut it with a knife. Cruising about, eating and selling oysters, at that time of the year, for his health! Nonsense! He was here, at that very time, hatching and contriving that these very negroes should go on board the Pearl. But the prisoner's counsel say he might have been employed by others simply to carry them away! Who could have employed him but abolitionists; and did he not say he had no sympathy with abolitionists. So much for that hypothesis. Then, he in fact pleads guilty,--he says he expects to die in the penitentiary. Don't you think he ought to? If there is any chasm here, the prisoner must shed light upon it. If he had employers, who were they? The prisoner's counsel have said that he is not bound to tell; and that the witnesses, if summoned here, would not be compelled to criminate themselves. But shall this prisoner be allowed to take advantage of his own wrong? "As to the metaphysics of the prisoner's counsel about possession, that is easily disposed of. Were not these slaves found in Drayton's possession, and didn't he admit that he took them? "As to the cautions given you about prejudice and passion, I do not think they are necessary. I have seen no sort of excitement here since the first detection of this affair that would prevent the prisoner having a fair trial. Is there any crowd or excitement here? The community will be satisfied with the verdict. There is no question the party is guilty. I never had anything to do with a case sustained by stronger evidence. I don't ask you to give an illegal or perjured verdict. Take the law and the evidence, and decide upon it. "N.B.--The argument being now concluded, and the jury about to go out, some question arose whether the jury should have the written instructions of the court with them; and some inquiry being made as to the practice, one of the jurors observed that in a case in which he had formerly acted as juror the jury had the instructions with them, and he proceeded to tell a funny story about a bottle of rum, told by one of the jurors on that occasion, which story caused him to remember the fact. It may be observed, by the way, that the proceedings of the United States Criminal Court for the District of Columbia are not distinguished for any remarkable decorum or dignity. The jury, in this case, were in constant intercourse, during any little intervals in the trial, with the spectators outside the bar." The case was given to the jury about three o'clock, P.M., and the court, after waiting half an hour, adjourned. When the court met, at ten o'clock the next morning, the jury were still out, having remained together all night without being able to agree. Meanwhile the District Attorney proceeded to try me on another indictment, for stealing three slaves the property of one William H. Upperman. As this trial was proceeding, about half-past two the jury in the first case came in, and rendered a verdict of GUILTY. They presented rather a haggard appearance, having been locked up for twenty-four hours, and some of them being perhaps a little troubled in their consciences. The jury, it was understood, had been divided, from the beginning, four for acquittal and eight for conviction. These four were all Irishmen, and perhaps they did not consider it consistent with their personal safety and business interests to persist in disappointing the slave-holding public of that verdict which the District Attorney had so imperiously demanded. The agreement, it was understood, had taken place only a few moments before they came in, and had been reached entirely on the strength of Williams' testimony to my having said, that had I got off I should have made an independent fortune. Now, it was a curious coincidence, that at the very moment that this agreement was thus taking place, Williams, again on the stand as a witness on the second trial, wished to take back what he had then sworn to on the first trial, stating that he could not tell whether he had heard me say this, or whether he had heard of my having said it from somebody else. After the rendition of the verdict of the other jury, the second case was again resumed. The evidence varied in only a few particulars from that which had been given in the first case. There was, in addition, the testimony of Upperman, the pretended owner of the woman and her daughters, one of fifteen, the other nine years old, whom I was charged in this indictment with stealing. This man swore with no less alacrity, and with no less falsehood, than Houver had done before him. He stated that about half-past ten, of that same night that the Pearl left Washington, while he was fastening up his house, he saw a man standing on the side-walk opposite his door, and observed him for some time. Not long after, having gone to bed, he heard a noise of somebody coming down stairs; and, calling out, he was answered by his slave-woman, who was just then going off, though he had no suspicion of it at the time. That man standing on the side-walk he pretended to recognize as me. He was perfectly certain of it, beyond all doubt and question. The object of this testimony was, to lead to a conclusion of enticement or persuasion on my part, and so to bring the case within one of the judge's instructions already stated. On a subsequent trial, Upperman was still more certain, if possible, that I was the man. But he was entirely mistaken in saying so. His house was on Pennsylvania Avenue, more than a mile from where the Pearl lay, and I was not within a mile of it that night. I dare say Upperman was sincere enough. He was one of your positive sort of men; but his case, like that of Houver, shows that men in a passion will sometimes fall into blunders. I have reason to believe that after the trials were over Upperman became satisfied of his error. The first trial had consumed a week; the second one lasted four days. The judge laid down the same law as before, and similar exceptions were taken by my counsel. The jury again remained out all night, being long divided,--nine for conviction to three for acquittal; but on the morning of August 9th they came in with a verdict of GUILTY. Satisfied for the present with these two verdicts against me, the District Attorney now proposed to pass over the rest of my cases, and to proceed to try Sayres. My counsel objected that, having been forced to proceed against my remonstrances, I was here ready for trial, and they insisted that all my cases should be now disposed of. They did not prevail, however; and the District Attorney proceeded to try Sayres on an indictment for stealing the same two slaves of Houver. In addition to the former witnesses against me, English was now put upon the stand, the District Attorney having first entered _nolle prosequi_ upon the hundred and fifteen indictments against him. But he could state nothing except the circumstances of his connection with the affair, and the coming on board of the passengers on Saturday night, as I have already related them. On the other hand, the "phantom brig" story, of which the District Attorney had made so great a handle in the two cases against me, was now ruled out, on the ground that the brig could not be brought into the case till some connection had first been shown between her and the Pearl. The trial lasted three days. The District Attorney pressed for a conviction with no less violence than he had done in my case, assuring the jury that if they did not convict there was an end of the security of slave property. But Sayres had several advantages over me. My two juries had been citizens of Washington, several of them belonging to a class of loafers who frequent the courts for the sake of the fees to be got as jurymen. Some complaints having been made of this, the officers had been sent to Georgetown and the country districts, and the present jury was drawn from those quarters. Then, again, I was regarded as the main culprit,--the only one in the secret of the transaction; and, as I was already convicted, the feeling against Sayres was much lessened. In fact, the jury in his case, after an absence of half an hour, returned a verdict of NOT GUILTY. The District Attorney, greatly surprised and vexed, proceeded to try Sayres on another indictment. This trial lasted three days and a half; but, in spite of the efforts of the District Attorney, who was more positive, longer and louder, than ever, the jury, in ten minutes, returned a verdict of NOT GUILTY. The trials had now continued through nearly four weeks of very hot weather, and both sides were pretty well worn out. Vexed at the two last verdicts, the District Attorney threatened to give up Sayres on a requisition from Virginia, which was said to have been lodged for us, some of the alleged slaves belonging there, and we having been there shortly before. Finally, it was agreed that verdicts should be taken against Sayres in the seventy-four transportation cases, he to have the advantage of carrying the points of law before the Circuit Court, and the remaining larceny indictments against him to be discontinued. Thus ended the first legal campaign. English was discharged altogether, without trial. Sayres had got rid of the charge of larceny. I had been found guilty on two indictments for stealing, upon which Judge Crawford sentenced me to twenty years imprisonment in the penitentiary; while Sayres, on seventy-four indictments for assisting the escape of slaves, was sentenced to a fine on each indictment of one hundred and fifty dollars and costs, amounting altogether to seven thousand four hundred dollars. But from these judgments an appeal had been taken to the Circuit Court, and meanwhile Sayres and I remained in prison as before. The hearing before the Circuit Court came on the 26th of November. That court consisted of Chief-Justice Cranch, an able and upright judge, but very old and infirm; and Judges Morrell and Dunlap, the latter of whom claimed to be the owner of two of the negroes found on board the Pearl. My cases were argued for me by Messrs. Hildreth, Carlisle and Mann. The District Attorney, who was much better fitted to bawl to a jury than to argue before a court, had retained, at the expense of the United States, the assistance of Mr. Bradley, one of the ablest lawyers of the District. The argument consumed not less than three days. Many points were discussed; but that on which the cases turned was the definition of larceny. It resulted in the allowance of several of my bills of exceptions, the overturn of the law of Judge Crawford on the subject of larceny, and the establishment by the Circuit Court of the doctrine on that subject contended for by my counsel; but from this opinion Judge Dunlap dissented. The case of Sayres, for want of time, was postponed till the next term. A new trial having been ordered in my two cases, everybody supposed that the charge of larceny would now be abandoned, as the Circuit Court had taken away the only basis on which it could possibly rest. But the zeal of the District Attorney was not yet satisfied; and, no longer trusting to his own unassisted efforts, he obtained (at the expense of the United States) the assistance of Richard Cox, Esq., an old and very unscrupulous practitioner, with whose aid he tried the cases over again in the Criminal Court. The two trials lasted about fourteen days. I was again defended by Messrs. Mann and Carlisle, and now with better success, as the juries, under the instructions which Judge Crawford found himself obliged to give, and notwithstanding the desperate efforts against me, acquitted me in both cases, almost without leaving their seats. Finally, the District Attorney agreed to abandon the remaining larceny cases, if we would consent to verdicts in the transportation cases on the same terms with those in the case of Sayres. This was done; when Judge Crawford had the satisfaction of sentencing me to fines and costs amounting together to ten thousand and sixty dollars, and to remain in prison until that amount was paid. There was still a further hearing before the Circuit Court on the bills of exceptions to these transportation indictments. My counsel thought they had some good legal objections; but the hearing unfortunately came on when Judge Cranch was absent from the bench, and the other two judges overruled them. By a strange construction of the laws, no criminal case, except by accident, can be carried before the Supreme Court of the United States; otherwise, the cases against us would have been taken there, including the question of the legality of slavery in the District of Columbia. Thus, after a severe and expensive struggle, I was saved from the penitentiary; but Sayres and myself remained in the Washington jail, loaded with enormous fines, which, from our total inability to pay them, would keep us there for life, unless the President could be induced to pardon us; and it was even questioned, as I shall show presently, whether he had any such power. The jail of the District of Columbia is under the charge of the Marshal of the District. That office, when I was first committed to prison, was filled by a Mr. Hunter; but he was sick at the time, and died soon after, when Robert Wallace was appointed. This Wallace was a Virginian, from the neighbor hood of Alexandria, son of a Doctor Wallace from whom he had inherited a large property, including many slaves. He had removed to Tennessee, and had set up cotton-planting there; but, failing in that business, had returned back with the small remnants of his property, and Polk provided for him by making him marshal. It was not long before I found that he had a great spite against me. It was in vain that I solicited from him the use of the passage. The light which came into my cell was very faint, and I could only read by sitting on the floor with my back against the grating of the cell door. But, so far from aiding me to read,--and it was the only method I had of passing my time,--Wallace made repeated and vexatious attempts to keep me from receiving newspapers. I should very soon have died on the prison allowance. The marshal is allowed by the United States thirty-three cents per day for feeding the prisoners. For this money they receive two meals; breakfast, consisting of one herring, corn-bread and a dish of molasses and water, very slightly flavored with coffee; and for dinner, corn-bread again, with half a pound of the meanest sort of salted beef, and a soup made of corn-meal stirred into the pot-liquor. This is the bill of fare day after day, all the year round; and, as at the utmost such food cannot cost more than eight or nine cents a day for each prisoner, and as the average number is fifty, the marshal must make a handsome profit. The diet has been fixed, I suppose, after the model of the slave allowances. But Congress, after providing the means of feeding the prisoners in a decent manner, ought not to allow them to be starved for the benefit of the marshal. Such was the diet to which I was confined in the first days of my imprisonment. But I soon contrived to make a friend of Jake, the old black cook of the prison, who, I could see as he came in to pour out my coffee, evinced a certain sympathy and respect for me. Through his agency I was able to purchase some more eatable food; and indeed the surgeon of the jail allowed me flour, under the name of medicine, it being impossible, as he said, for me to live on the prison diet. Wallace, soon after he came into office, finding a small sum in my possession, of about forty dollars, took it from me. He expressed a fear that I might corrupt old Jake, or somebody else,--especially as he found that I gave Jake my old newspapers,--and so escape from the prison. But he left the money in the hands of the jailer, and allowed me to draw it out, a dollar at a time. He presently turned out old Jake, and put in a slave-woman of his own as cook; but she was better disposed towards me than her master, and I found no difficulty in purchasing with my own money, and getting her to prepare such food as I wanted. I was able, too, after some six or eight weeks' sleeping on the stone floor of my cell, to obtain some improvement in that particular; and not for myself only, but for all the other prisoners also. The jailer was requested by several persons who came to see us to procure mattresses for us at their expense; and, finally, Wallace, as if out of pure shame, procured a quantity of husk mattresses for the use of the prisoners generally. Still, we had no cots, and were obliged to spread our mattresses on the floor. The allowance of clothing made to the prisoners who were confined without any means of supporting themselves corresponded pretty well with the jail allowance of provisions. They received shirts, one at a time, made of the very meanest kind of cotton cloth, and of the very smallest dimensions; trousers of about equal quality, and shoes. It was said that the United States paid also for jackets and caps. How that was I do not know; but the prisoners never received any. The custody of the jail was intrusted to a head jailer, assisted by four guards, or turnkeys, one of whom acted also as book-keeper. Of the personal treatment toward me of those in office, at the time I was first committed, I have no complaint to make. The rigor of my confinement was indeed great; but I am happy to say that it was not aggravated by any disposition on the part of these men to triumph over me, or to trample upon me. As they grew more acquainted with me, they showed their sense that I was not an ordinary criminal, and treated me with many marks of consideration, and even of regard, and in one of them I found a true friend. Shortly after Wallace came into office, he made several changes. He was full of caprices, and easily took offence from very small causes; and of this the keepers, as well as the prisoners, had abundant experience. The head jailer did his best to please, behaving in the most humble and submissive manner; but all to no purpose. He was discharged, as were also the others, one after another,--Wallace undertaking to act as head jailer himself. Of Wallace's vexatious conduct towards me; of his refusal to allow me to receive newspapers,--prohibiting the under jailer to lend me even the Baltimore _Sun_; of his accusation against me of bribing old Jake, whom he forbade the turnkeys to allow to come near me; of his keeping me shut up in my cell; and generally of a bitter spirit of angry malice against me,--I had abundant reason to complain during the weary fifteen months or more that I remained under his power. But his subordinates, though obliged to obey his orders and to comply with his humors, were far from being influenced by his feelings. Even his favorite among the turnkeys, a person who pretty faithfully copied his conduct towards the other prisoners, always behaved very kindly towards me, and even used to make a confidant of me, by coming to my cell to talk over his troubles. But the person whose kind offices and friendly sympathy did far more than those of any other to relieve the tediousness of my confinement, and to keep my heart from sinking, was Mr. Wood. There is no chaplain at the Washington jail, nor has Congress, so far as I am aware, made any provision of any kind for the spiritual wants or the moral and religious instruction of the inmates of it. This great deficiency Mr. Wood, a man of a great heart, though of very limited pecuniary means, being then a clerk in the Telegraph office, had taken it upon himself to supply, so far as he could; and for that purpose he was in the habit of visiting the prison on Sundays, conversing with the prisoners, and furnishing tracts and books to such as were able and disposed to read. He came to my cell, or to the grating of the passage in which I was confined, on the very first Sunday of my imprisonment, and he readily promised, at my request, to furnish me with a Bible; though in that act of kindness he was anticipated by the colored woman of whom I have already made mention, who appeared at my cell, with a Bible for me, just after Mr. Wood had left it. The kindness of Mr. Wood's heart, and the sincerity of his sympathy, was so apparent as to secure him the affectionate respect of all the prisoners. To me he proved a very considerate and useful friend. Not only was I greatly indebted to his assistance in making known my necessities and those of my family to those disposed to relieve them, but his cheerful and Christian conversation served to brighten many a dark hour, and to dispel many gloomy feelings. Were all professing Christians like my friend Mr. Wood, we should not hear so many denunciations as we now do of the church, and complaints of her short-comings. There was another person, also, whose kind attentions to me I ought not to overlook. This was Mrs. Susannah Ford, a very respectable colored woman, who sold refreshments in the lobby of the court-house, and who, in the progress of the trial, had evinced a good deal of interest in the case. As she often had boarders in the jail, who, like me, could not live on the jail fare, and whom she supplied, she was frequently there, and she seldom came without bringing with her some substantial token of her regard. Sayres and myself had looked forward to the change of administration, which resulted from the election of General Taylor, with considerable hopes of advantage from it--but, for a considerable time, this advantage was limited to a change in the marshal in whose custody we were. The turning out of Wallace gave great satisfaction to everybody in the jail, or connected with it, except the turnkeys, who held office by his appointment, and who expected that his dismissal would be followed by their own. The very day before the appointment of his successor came out, I had been remonstrating with him against the cruelty of refusing me the use of the passage; and I had even ventured to hint that I hoped he would do nothing which he would be ashamed to see spoken of in the public prints; to which he replied, "G--d d--n the public prints!--in that cell you will stay!" But in this he proved not much of a prophet. The next day, as soon as the news of his dismissal reached the jail, the turnkeys at once unlocked my cell-door and admitted me into the passage, observing that the new marshal, when he came to take possession, should at least find me there. This new marshal was Mr. Robert Wallach, a native of the District, very similar in name to his predecessor, but very different in nature; and from the time that he entered into office the extreme rigor hitherto exercised to me was a good deal abated. One thing, however, I had to regret in the change, which was the turning out of all the old guards, with whom I was already well acquainted, and the appointment of a new set. One of these thus turned out--the person to whom I have already referred to as the chief favorite of the late marshal--made a desperate effort to retain his office. But, although he solicited and obtained certificates to the effect that he was, and always had been, a good Whig, he had to walk out with the others. The new jailer appointed by Wallach, and three of the new guards, or turnkeys, were very gentlemanly persons, and neither I nor the other prisoners had any reason to complain of the change. Of the fourth turnkey I cannot say as much. He was violent, overbearing and tyrannical, and he was frequently guilty of conduct towards the prisoners which made him very unfit to serve under such a marshal, and ought to have caused his speedy removal. But, unfortunately, the marshal was under some political obligations to him, which made the turning him out not so easy a matter. This person seemed to have inherited all the feelings of hatred and dislike which the late marshal had entertained towards me, and he did his best to annoy me in a variety of ways, though, of course, his power was limited by his subordinate position. But, although I gained considerably by the new-order of things, I soon found that it had also some annoying consequences. Under the old marshal, either to make the imprisonment more disagreeable to me, or from fear lest I should corrupt the other prisoners, I had been kept in a sort of solitary confinement, no other prisoners being placed in the same passage. This system was now altered; and, although my privacy was always so far respected that I was allowed a cell by myself, I often found myself with fellow-prisoners in the same passage from whose society it was impossible for me to derive either edification or pleasure. I suffered a good deal from this cause; but at length succeeded in obtaining a remedy, or, at least, a partial one. I was allowed, during the day-time, the range of the debtors' apartments, a suite of spacious, airy and comfortable rooms, in which there were seldom more than one or two tenants. I pleaded hard to be removed to these apartments altogether,--to be allowed to sleep there, as well as to pass the days there. As it was merely for the non-payment of a sum of money that I was held, I thought I had a right to be treated as a debtor. But those apartments were so insecure, that the keepers did not care to trust me there during the night. By this change of quarters my condition was a good deal improved. I not only had ample conveniences for reading, but I improved the opportunity to learn to write, having only been able to sign my name when T was committed to the prison. But a jail, after all, is a jail; and I longed and sighed to obtain my liberty, and to enjoy again the society of my wife and children. Had it been wished to impress my mind in the strongest manner with the horrors of slavery, no better method could have been devised than this imprisonment in the Washington jail. I felt personally what it was to be restrained of my liberty; and, as many of the prisoners were runaway slaves, or slaves committed at the request of their masters, I saw a good deal of what slaves are exposed to. Of this I shall here give but a single instance. Wallace, the marshal, as I have already mentioned, had two female slaves, the last remnants of the large slave-property which he had inherited from his father. One of these was a young and very comely mulatto girl, whom Wallace had made his housekeeper, and whom he sought to make also his concubine. But, as the girl already had a child by a young white man, to whom she was attached, she steadily repelled all his advances. Not succeeding by persuasion, this scion of the aristocracy of the Old Dominion--this Virginian gentleman, and marshal of the United States for the District of Columbia--shut the girl up in the jail of the District, in hopes of thus breaking her to his will; and, as she proved obstinate, he finally sold her. He then turned his eyes on the other woman,--his property,--Jemima, our cook, already the mother of three children. But she set him at open defiance. As she wished to be sold, he had lost the greatest means of controlling her; and as she openly threatened, before all the keepers, to tear every rag of clothing off his body if he dared lay his hand upon her, he did not venture, to brave her fury. In most of the states, if not in all of them, certainly in all the free states, there is no such thing as keeping a man in prison for life merely for the non-payment of a fine which he has no means to pay. The same spirit of humanity which has abolished the imprisonment of poor debtors at the caprice of their creditors has provided means for discharging, after a short imprisonment, persons held in prison for fines which they have no means of paying. Indeed, what can be more unequal or unjust than to hold a poor man a prisoner for life for an offence which a rich man is allowed to expiate by a small part of his superfluous wealth? But this is one, among many other barbarisms, which the existence of slavery in the District of Columbia, by preventing any systematic revision of the laws, has entailed upon the capital of our model democracy. There was, as I have stated, no means by which Sayres and myself could be discharged from prison except by paying our fines (which was totally out of the question), or by obtaining a presidential pardon, which, for a long time, seemed equally hopeless. There was, indeed, a peculiarity about our case, such as might afford a plausible excuse for not extending to us any relief. Under the law of 1796, the sums imposed upon us as fines were to go one half to the owners of the slaves, and the other half to the District; and it was alleged, that although the President might remit the latter half, he could not the other. That same Mr. Radcliff whom I have already had occasion to mention volunteered his services--for a consideration--to get over this difficulty. In consequence of a handsome fee which he received, he undertook to obtain the consent of the owners of the slaves to our discharge. But, having pocketed the money, he made, so far as I could find, very little progress in the business, not having secured above five or six signers. In answer to my repeated applications, he at length proposed that my wife and youngest daughter should come on to "Washington to do the business which he had undertaken, and for which he had secured a handsome payment in advance. They came on accordingly, and, by personal application, succeeded in obtaining, in all, the signatures of twenty-one out of forty-one, the whole number. The reception which they met with from different parties was very different, showing that there is among slave-holders as much variety of character as among other people. Some signed with alacrity, saying that, as no slaves had been lost, I had been kept in jail too long already. Others required much urging. Others positively refused. Some even added insults. Young Francis Dodge, of Georgetown, would not sign, though my life had depended upon it. One wanted me hung, and another tarred and feathered. One pious church-member, lying on his death-bed, as he supposed, was persuaded to sign; but he afterwards drew back, and nothing could prevail on him to put his name to the paper. Die or live, he wholly refused. But the most curious case occurred at Alexandria, to which place my wife went to obtain the signature of a pious old lady, who had been the claimant of a youngster found among the passengers of the Pearl, and who had been sold, in consequence, for the southern market. The old lady, it appeared, was still the owner of the boy's mother, who acted as one of her domestics, and, if she was willing, the old lady professed her readiness to sign. The black woman was accordingly called in, and the nature of my wife's application stated to her. But, with much positiveness and indignation, she refused to give her consent, declaring that my wife could as well do without her husband as she could do without her boy. So imbruted and stupefied by slavery was this old woman, that she seemed to think the selling her boy away from her a perfectly humane, Christian and proper act, while all her indignation was turned against me, who had merely afforded the boy an opportunity of securing his freedom! I dare say they had persuaded the old woman that I had enticed the boy to run away; whereas, as I have already stated, I had never seen him, nor any other of the passengers, till I found them on board. As only twenty-one signers could be obtained, the matter stood very much as it did before the attempt was made. So long as President Fillmore remained a candidate for reëlection there was little ground to expect from him a favorable consideration of my case. I therefore felt sincerely thankful to the Whig convention when they passed by Mr. Fillmore, and gave the nomination to General Scott. Mr. Fillmore being thus placed in a position which enabled him to listen to the dictates of reason, justice and humanity, my hopes, and those of my friends, were greatly raised. Mr. Sumner, the Free Democratic senator from Massachusetts, had visited me in prison shortly after his arrival at Washington, and had evinced from the beginning a sincere and active sympathy for me. Some complaints were made against him in some anti-slavery papers, because he did not present to the senate some petitions in my behalf, which had been forwarded to his care. But Mr. Sumner was of opinion, and I entirely agreed with him, that if the object was to obtain my discharge from prison, that object was to be accomplished, not by agitating the matter in the senate, but by private appeals to the equity and the conscience of the President; nor did he think, nor I either, that my interests ought to be sacrificed for the opportunity to make an anti-slavery speech. There is reason in everything; and I thought, and he thought too, that I had been made enough of a martyr of already. The case having been brought to the notice of the President, he, being no longer a candidate for reëlection, could not fail to recognize the claim of Sayres and myself to a discharge. We had already been kept in jail upwards of four years, for an offence which the laws had intended to punish by a trifling pecuniary fine Nor was this all. The earlier part of our confinement had been exceedingly rigorous, and it had only been by the untiring efforts of our friends, and at a great expense to them, that we had been saved from falling victims to the conspiracy, between the District Attorney and Judge Crawford, to send us to the penitentiary. Although my able and indefatigable counsel, Mr. Mann, whose arduous labors and efforts in my behalf I shall never forget, and still less his friendly counsels and kind personal attentions, had received nothing, except, I believe, the partial reimbursement of his travelling expenses, and although there was much other service gratuitously rendered in our cases, yet it had been necessary to pay pretty roundly for the services of Mr. Carlisle; and, altogether, the expenditures which had been incurred to shield us from the effects of the conspiracy above mentioned far exceeded any amount of fine which might have been reasonably imposed under the indictments upon which we had been found guilty. Was not the enormous sum which Judge Crawford sentenced us to pay a gross violation of the provision in the constitution of the United States against excessive fines? Any fine utterly beyond a man's ability to pay, and which operates to keep him a prisoner for life, must be excessive, or else that word has no meaning. But, though our case was a strong one, there still remained a serious obstacle in the way, in the idea that, because half the fines was to go to the owners of the slaves, the President could not remit that half. Here was a point upon which Mr. Sumner was able to assist us much more effectually than by making speeches in the senate. It was a point, too, involved in a good deal of difficulty; for there were some English cases which denied the power of pardon under such circumstances. Mr. Sumner found, however, by a laborious examination of the American cases, that a different view had been taken in this country; and he drew up and submitted to the President an elaborate legal opinion, in which the right of the executive to pardon us was very clearly made out. This opinion the President referred to the Attorney General. A considerable time elapsed before he found leisure to examine it; but at last it obtained his sanction, also. Information at length reached us--the matter having been pending for two months or more--that the President had signed our pardon. It had yet, however, to pass through the office of the Secretary for the Interior, and meanwhile we were not by any means free from anxiety. The reader will perhaps recollect that among the other things which the District Attorney had held over our heads had been the threat to surrender us up to the authorities of Virginia, on a requisition which it was alleged they had made for us. The story of this requisition had been repeated from time to time, and a circumstance now occurred which, in seeming to threaten us with something of the sort, served to revive all our apprehensions. Mr. Stuart, the Secretary of the Interior, through whose office the pardon was to pass, sent word to the marshal that such a pardon had been signed, and, at the same time, requested him, if it came that day into his hands, not to act upon it till the next. As this Stuart was a Virginian, out apprehensions were naturally excited of some movement from that quarter. The pardon arrived about five o'clock that afternoon; and immediately upon receiving it the marshal told us that he had no longer any hold upon us,--that we were free men, and at liberty to go where we chose. As we were preparing to leave the jail, I observed that a gentleman, a friend of the marshal, whom I had often seen there, and who had always treated me with great courtesy, hardly returned my good-day, and looked at me as black as a thunder-cloud. Afterwards, upon inquiring of the jailer what the reason could be, I learned that this gentleman, who was a good deal of a politician, was greatly alarmed and disturbed lest the act of the President in having pardoned us should result in the defeat of the Whig party--and, though willing enough that we should be released, he did not like to have it done at the expense of his party, and his own hopes of obtaining some good office. The Whigs were defeated, sure enough; but whether because we were pardoned--though the idea is sufficiently nattering to my vanity--is more than I shall venture to decide. The black prisoners in the jail, having nothing to hope or fear from the rise or fall of parties, yielded freely to their friendly feelings, and greeted our departure with three cheers. We left the jail as privately as possible, and proceeded in a carriage to the house of a gentleman of the District, where we were entertained at supper. Our imprisonment had lasted four years and four months, lacking seven days. We did not feel safe, however, with that Virginia requisition hanging over our heads, so long as we remained in the District, or anywhere on slave-holding ground; and, by the liberality of our friends, a hack was procured for us, to carry us, that same night, to Baltimore, there, the next morning, to take the cars for Philadelphia. The night proved one of the darkest and stormiest which it had ever been my fate to encounter,--and I have seen some bad weather in my time. The rain fell in torrents, and the road was only now and then visible by the flashes of the lightning. But our trusty driver persevered, and, in spite of all obstacles, brought us to Baltimore by the early dawn. Sayres proceeded by the direct route to Philadelphia. Having still some apprehensions of pursuit and a requisition, I took the route by Harrisburg. Great was the satisfaction which I felt as the cars crossed the line from Maryland into Pennsylvania. It was like escaping out of Algiers into a free and Christian country. I shall leave it to the reader to imagine the meeting between myself and my family. They had received notice of my coming, and were all waiting to receive me. If a man wishes to realize the agony which our American slave-trade inflicts in the separation of families, let him personally feel that separation, as I did; let him pass four years in the Washington jail. When committed to the prison, I was by no means well. I had been a good deal out of health, as appeared from the evidence on the trial, for two or three years before. Close confinement, or, indeed, confinement of any sort, does not agree with persons of my temperament; and I came out of the prison a good deal older, and much more of an invalid, than when I entered it. The reader, perhaps, will inquire what good was gained by all these sufferings of myself and my family--what satisfaction I can have, as it did not succeed, in looking back to an enterprise attended with so much risk, and which involved me in so long and tedious an imprisonment? The satisfaction that I have is this: What I did, and what I attempted to do, was my protest,--a protest which resounded from one end of the Union to the other, and which, I hope, by the dissemination of this, my narrative, to renew and repeat it,--it was my protest against the infamous and atrocious doctrine that there can be any such thing as property in man! We can only do according to our power, and the capacity, gifts and talents, that we have. Others, more fortunate than I, may record their protest against this wicked doctrine more safely and comfortably for themselves than I did. They may embody it in burning words and eloquent speeches; they may write it out in books; they may preach it in sermons. I could not do that. I have as many thoughts as another, but, for want of education, I lack the power to express them in speech or writing. I have not been able to put even this short narrative on paper without obtaining the assistance of a friend. I could not talk, I could not write; but I could act. The humblest, the most uneducated man can do that. I did act; and, by my actions, I protested that I did not believe that there was, or could be, any such thing as a right of property in human beings. Nobody in this country will admit, for a moment, that there can be any such thing as property in a white man. The institution of slavery could not last for a day, if the slaves were all white. But I do not see that because their complexions are different they are any the less men on that account. The doctrine I hold to, and which I desired to preach in a practical way, is the doctrine of Jefferson and Madison, that there cannot be property in man,--no, not even in black men. And the rage exerted against me on the part of the slave-holders grew entirely out of my preaching that doctrine. Actions, as everybody knows, speak louder than words. By virtue of my actions proclaiming my opinion on that subject, I became at once, powerless as I otherwise was, elevated, in the minds of the slave-holders, to the same high level with Mr. Giddings and Mr. Hale, who they could not help believing must have been my secret confederates. If I had believed, as the slave-holders do, that men can be owned; if I had really attempted, as they falsely and meanly charged me with doing, to steal; had I actually sought to appropriate men as property to my own use; had that been all, does anybody imagine that I should ever have been pursued with such persevering enmity and personal virulence? Do they get up a debate in Congress, and a riot in the city of Washington, every time a theft is committed or attempted in the District? It was purely because I was not a thief; because, in helping men, women and children, claimed as chattels, to escape, I bore my testimony against robbing human beings of their liberty; this was the very thing that excited the slave-holders against me, just as a strong anti-slavery speech excites them against Mr. Hale, or Mr. Giddings, or Mr. Mann, or Mr. Stunner. Those gentlemen have words at command; they can speak, and can do good service by doing so. As for me, it was impossible that I should ever be able to make myself heard in Congress, or by the nation at large, except in the way of action. The opportunity occurring, I did not hesitate to improve it; nor have I ever yet seen occasion to regret having done so. 
17971	----	"Making of America" digital library (http://www.hti.umich.edu/m/moa/). THE ABOLITION OF SLAVERY THE RIGHT OF THE GOVERNMENT UNDER THE WAR POWER By William Lloyd Garrison and Others EMANCIPATION UNDER THE WAR POWER. Extracts from the speech of John Quincy Adams, delivered in the U.S. House of Representatives, April 14 and 15, 1842, on War with Great Britain and Mexico:-- What I say is involuntary, because the subject has been brought into the House from another quarter, as the gentleman himself admits. I would leave that institution to the exclusive consideration and management of the States more peculiarly interested in it, just as long as they can keep within their own bounds. So far, I admit that Congress has no power to meddle with it. As long as they do not step out of their own bounds, and do not put the question to the people of the United States, whose peace, welfare and happiness are all at stake, so long I will agree to leave them to themselves. But when a member from a free State brings forward certain resolutions, for which, instead of reasoning to disprove his positions, you vote a censure upon him, and that without hearing, it is quite another affair. At the time this was done, I said that, as far as I could understand the resolutions proposed by the gentleman from Ohio, (Mr. Giddings,) there were some of them for which I was ready to vote, and some which I must vote against; and I will now tell this House, my constituents, and the world of mankind, that the resolution against which I would have voted was that in which he declares that what are called the slave States have the exclusive right of consultation on the subject of slavery. For that resolution I never would vote, because I believe that it is not just, and does not contain constitutional doctrine. I believe that, so long as the slave States are able to sustain their institutions without going abroad or calling upon other parts of the Union to aid them or act on the subject, so long I will consent never to interfere. I have said this, and I repeat it; but if they come to the free States, and say to them, you must help us to keep down our slaves, you must aid us in an insurrection and a civil war, then I say that with that call comes a full and plenary power to this House and to the Senate over the whole subject. It is a war power. I say it is a war power, and when your country is actually in war, whether it be a war of invasion or a war of insurrection, Congress has power to carry on the war, and must carry it on, according to the laws of war; and by the laws of war, an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them. This power in Congress has, perhaps, never been called into exercise under the present Constitution of the United States. But when the laws of war are in force, what, I ask, is one of those laws? It is this: that when a country is invaded, and two hostile armies are set in martial array, the commanders of both armies have power to emancipate all the slaves in the invaded territory. Nor is this a mere theoretic statement. The history of South America shows that the doctrine has been carried into practical execution within the last thirty years. Slavery was abolished in Columbia, first, by the Spanish General Morillo, and, secondly, by the American General Bolivar. It was abolished by virtue of a military command given at the head of the army, and its abolition continues to be law to this day. It was abolished by the laws of war, and not by municipal enactments; the power was exercised by military commanders, under instructions, of course, from their respective Governments. And here I recur again to the example of Gen. Jackson. What are you now about in Congress? You are about passing a grant to refund to Gen. Jackson the amount of a certain fine imposed upon him by a Judge, under the laws of the State of Louisiana. You are going to refund him the money, with interest; and this you are going to do because the imposition of the fine was unjust. And why was it unjust? Because Gen. Jackson was acting under the laws of war, and because the moment you place a military commander in a district which is the theatre of war, the laws of war apply to that district. I might furnish a thousand proofs to show that the pretensions of gentlemen to the sanctity of their municipal institutions under a state of actual invasion and of actual war, whether servile, civil or foreign, is wholly unfounded, and that the laws of war do, in all such cases, take the precedence. I lay this down as the law of nations. I say that military authority takes, for the time, the place of all municipal institutions, and slavery among the rest; and that, under that state of things, so far from its being true that the States where slavery exists have the exclusive management of the subject, not only the President of the United States, but the Commander of the Army, has power to order the universal emancipation of the slaves. I have given here more in detail a principle which I have asserted on this floor before now, and of which I have no more doubt than that you, sir, occupy that chair. I give it in its development, in order that any gentleman from any part of the Union may, if he thinks proper, deny the truth of the position, and may maintain his denial; not by indignation, not by passion and fury, but by sound and sober reasoning from the laws of nations and the laws of war. And if my position can be answered and refuted, I shall receive the refutation with pleasure; I shall be glad to listen to reason, aside, as I say, from indignation and passion. And if, by the force of reasoning, my understanding can be convinced, I here pledge myself to recant what I have asserted. Let my position be answered; let me be told, let my constituents be told, the people of my State be told--a State whose soil tolerates not the foot of a slave--that they are bound by the Constitution to a long and toilsome march under burning summer suns and a deadly Southern clime for the suppression of a servile war; that they are bound to leave their bodies to rot upon the sands of Carolina, to leave their wives widows and their children orphans; that those who cannot march are bound to pour out their treasures while their sons or brothers are pouring out their blood to suppress a servile, combined with a civil or a foreign war, and yet that there exists no power beyond the limits of the slave State where such war is raging to emancipate the slaves. I say, let this be proved--I am open to conviction; but till that conviction comes, I put it forth not as a dictate of feeling, but as a settled maxim of the laws of nations, that, in such a case, the military supersedes the civil power; and on this account I should have been obliged to vote, as I have said, against one of the resolutions of my excellent friend from Ohio, (Mr. Giddings,) or should at least have required that it be amended in conformity with the Constitution of the United States. THE WAR POWER OVER SLAVERY. We published, not long ago, an extract from a speech delivered by John Quincy Adams in Congress in 1842, in which that eminent statesman confidently announced the doctrine, that in a state of war, civil or servile, in the Southern States, Congress has full and plenary power over the whole subject of slavery; martial law takes the place of civil laws and municipal institutions, slavery among the rest, and "not only the President of the United States, but the Commander of the Army, has power to order the universal emancipation of the slaves." Mr. Adams was, in 1842, under the ban of the slaveholders, who were trying to censure him or expel him from the House for presenting a petition in favor of the dissolution of the Union. Lest it may be thought that the doctrine announced at this time was thrown out hastily and offensively, and for the purpose of annoying and aggravating his enemies, and without due consideration, it may be worth while to show that six years previous, in May, 1836, Mr. Adams held the same opinions, and announced them as plainly as in 1842. Indeed, it is quite likely that this earlier announcement of these views was the cause of the secret hostility to the ex-President, which broke out so rancorously in 1842. We have before us a speech by Mr. Adams, on the joint resolution for distributing rations to the distressed fugitives from Indian hostilities in the States of Alabama and Georgia, delivered in the House of Representatives, May 25, 1836, and published at the office of the National Intelligencer. We quote from it the following classification of the powers of Congress and the Executive:-- "There are, then, Mr. Chairman, in the authority of Congress and of the Executive, two classes of powers, altogether different in their nature, and often incompatible with each other--the war power and the peace power. The peace power is limited by regulations and restricted by provisions prescribed within the Constitution itself. The war power is limited only by the laws and usages of nations. This power is tremendous: it is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, of property, and of life. This, sir, is the power which authorizes you to pass the resolution now before you, and, in my opinion, no other." After an interruption, Mr. Adams returned to this subject, and went on to say:-- "There are, indeed, powers of peace conferred upon Congress which also come within the scope and jurisdiction of the laws of nations, such as the negotiation of treaties of amity and commerce, the interchange of public ministers and consuls, and all the personal and social intercourse between the individual inhabitants of the United States and foreign nations, and the Indian tribes, which require the interposition of any law. But the powers of war are all regulated by the laws of nations, and are subject to no other limitation...It was upon this principle that I voted against the resolution reported by the slavery committee, 'that Congress possess no constitutional authority to interfere, in any way, with the institution of slavery in any of the States of this Confederacy,' to which resolution most of those with whom I usually concur, and even my own colleagues in this House, gave their assent. I do not admit that there is, even among the peace powers of Congress, no such authority; but in war, there are many ways by which Congress not only have the authority, but ARE BOUND TO INTERFERE WITH THE INSTITUTION OF SLAVERY IN THE STATES. The existing law prohibiting the importation of slaves into the United States from foreign countries is itself an interference with the institution of slavery in the States. It was so considered by the founders of the Constitution of the United States, in which it was stipulated that Congress should not interfere, in that way, with the institution, prior to the year 1808. "During the late war with Great Britain, the military and naval commanders of that nation issued proclamations, inviting the slaves to repair to their standard, with promises of freedom and of settlement in some of the British colonial establishments. This surely was an interference with the institution of slavery in the States. By the treaty of peace, Great Britain stipulated to evacuate all the forts and places in the United States, without carrying away any slaves. If the Government of the United States had no power to interfere, in any way, with the institution of slavery in the States, they would not have had the authority to require this stipulation. It is well known that this engagement was not fulfilled by the British naval and military commanders; that, on the contrary, they did carry away all the slaves whom they had induced to join them, and that the British Government inflexibly refused to restore any of them to their masters; that a claim of indemnity was consequently instituted in behalf of the owners of the slaves, and was successfully maintained. All that series of transactions was an interference by Congress with the institution of slavery in the States in one way--in the way of protection and support. It was by the institution of slavery alone that the restitution of slaves, enticed by proclamations into the British service, could be claimed as property. But for the institution of slavery, the British commanders could neither have allured them to their standard, nor restored them otherwise than as liberated prisoners of war. But for the institution of slavery, there could have been no stipulation that they should not be carried away as property, nor any claim of indemnity for the violation of that engagement." If this speech had been made in 1860 instead of 1836, Mr. Adams would not have been compelled to rely upon these comparatively trivial and unimportant instances of interference by Congress and the President for the support and protection of slavery. For the last twenty years, the support and protection of that institution has been, to use Mr. Adams's words at a later day, the vital and animating spirit of the Government; and the Constitution has been interpreted and administered as if it contained an injunction upon all men, in power and out of power, to sustain and perpetuate slavery. Mr. Adams goes on to state how the war power may be used:-- "But the war power of Congress over the institution of slavery in the States is yet far more extensive. Suppose the case of a servile war, complicated, as to some extent it is even now, with an Indian war; suppose Congress were called to raise armies, to supply money from the whole Union to suppress a servile insurrection: would they have no authority to interfere with the institution of slavery? The issue of a servile war may be disastrous; it may become necessary for the master of the slave to recognize his emancipation by a treaty of peace; can it for an instant be pretended that Congress, in such a contingency, would have no authority to interfere with the institution of slavery, in any way, in the States? Why, it would be equivalent to saying that Congress have no constitutional authority to make peace. I suppose a more portentous case, certainly within the bounds of possibility--I would to God I could say, not within the bounds of probability--" Mr. Adams here, at considerable length, portrays the danger then existing of a war with Mexico, involving England and the European powers, bringing hostile armies and fleets to our own Southern territory, and inducing not only a foreign war, but an Indian, a civil, and a servile war, and making of the Southern States "the battle-field upon which the last great conflict will be fought between Slavery and Emancipation." "Do you imagine (he asks) that your Congress will have no constitutional authority to interfere with the institution of slavery, in any way, in the States of this Confederacy? Sir, they must and will interfere with it--perhaps to sustain it by war, perhaps to abolish it by treaties of peace; and they will not only possess the constitutional power so to interfere, but they will be bound in duty to do it, by the express provisions of the Constitution itself. From the instant that your slaveholding States become the theatre of a war, civil, servile, or foreign, from that instant, the war powers of Congress extend to interference with the institution of slavery, in every way by which it can be interfered with, from a claim of indemnity for slaves taken or destroyed, to the cession of States burdened with slavery to a foreign power."--New York Tribune. THE WAR IN ITS RELATION TO SLAVERY. To THE EDITOR OF THE NEW YORK TRIBUNE: SIR,--Our country is opening up a new page in the history of governments. The world has never witnessed such a spontaneous uprising of any people in support of free institutions as that now exhibited by the citizens of our Northern States. I observe that the vexed question of slavery still has to be met, both in the Cabinet and in the field. It has been met by former Presidents, by former Cabinets, and by former military officers. They have established a train of precedents that may be well followed at this day. I write now for the purpose of inviting attention to those principles of international law which are regarded by publicists and jurists as proper guides in the exercise of that despotic and almost unlimited authority called the "war power." A synopsis of these doctrines was given by Major General Gaines, at New Orleans, in 1838. General Jessup had captured many fugitive slaves and Indians in Florida, and had ordered them to be sent west of the Mississippi. At New Orleans, they were claimed by the owners, under legal process; but Gen. Gaines, commanding that military district, refused to deliver them to the sheriff, and appeared in court, stating his own defence. He declared that these people (men, women and children) were captured in wars and held as prisoners of war: that as commander of that military department or district, he held them subject only to the order of the National Executive: that he could recognize no other power in time of war, or by the laws of war, as authorized to take prisoners from his possession. He asserted that, in time of war, all slaves were belligerents as much as their masters. The slave men, said he, cultivate the earth and supply provisions. The women cook the food, nurse the wounded and sick, and contribute to the maintenance of the war, often more than the same number of males. The slave children equally contribute whatever they are able to the support of the war. Indeed, he well supported General Butler's declaration, that slaves are contraband of war. The military officer, said he, can enter into no judicial examination of the claim of one man to the bone and muscle of another as property. Nor could he, as a military officer, know what the laws of Florida were while engaged in maintaining the Federal Government by force of arms. In such case, he could only be guided by the laws of war; and whatever may be the laws of any State, they must yield to the safety of the Federal Government. This defence of General Gaines may be found in House Document No. 225, of the Second Session of the 25th Congress. He sent the slaves West, where they became free. Louis, the slave of a man named Pacheco, betrayed Major Dade's battalion, in 1836, and when he had witnessed their massacre, he joined the enemy. Two years subsequently, he was captured, Pacheco claimed him; General Jessup said if he had time, he would try him before a court-martial and hang him, but would not deliver him to any man. He however sent him West, and the fugitive slave became a free man, and is now fighting the Texans. General Jessup reported his action to the War Department, and Mr. Van Buren, then President, with his Cabinet, approved it. Pacheco then appealed to Congress, asking that body to pay him for the loss of his slave; and Mr. Greeley will recollect that he and myself, and a majority of the House of Representatives, voted against the bill, which was rejected. All concurred in the opinion that General Jessup did right in emancipating the slave, instead of returning him to his master. In 1838, General Taylor captured a number of negroes said to be fugitive slaves. Citizens of Florida, learning what had been done, immediately gathered around his camp, intending to secure the slaves who had escaped from them. General Taylor told them that he had no prisoners but "prisoners of war." The claimants then desired to look at them, in order to determine whether he was holding their slaves as prisoners. The veteran warrior replied that no man should examine his prisoners for such a purpose; and he ordered them to depart. This action being reported to the War Department, was approved by the Executive. The slaves, however, were sent West, and set free. In 1836, General Jessup wanted guides and men to act as spies. He therefore engaged several fugitive slaves to act as such, agreeing to secure the freedom of themselves and families if they served the Government faithfully. They agreed to do so, fulfilled their agreement, were sent West, and set free. Mr. Van Buren's Administration approved the contract, and Mr. Tyler's Administration approved the manner in which General Jessup fulfilled it by setting the slaves free. In December, 1814, General Jackson impressed a large number of slaves at and near New Orleans, and kept them at work erecting defences, behind which his troops won such glory on the 8th of January, 1815. The masters remonstrated. Jackson disregarded their remonstrances, and kept the slaves at work until many of them were killed by the enemy's shots; yet his action was approved by Mr. Madison and Cabinet, and by Congress, which has ever refused to pay the masters for their losses. But in all these cases, the masters were professedly friends of the Government; and yet our Presidents and Cabinets and Generals have not hesitated to emancipate their slaves whenever in time of war it was supposed to be for the interest of the country to do so. This was done in the exercise of the "war power" to which Mr. Adams referred in Congress, and for which he had the most abundant authority. But I think no records of this nation, nor of any other nation, will show an instance in which a fugitive slave has been sent back to a master who was in rebellion against the very Government who held his slave as captive. From these precedents I deduce the following doctrines:-- 1. That slaves belonging to an enemy are now and have ever been regarded as belligerents; may be lawfully captured and set free, sent out of the State, or otherwise disposed of at the will of the Executive. 2. That as slaves enable an enemy to continue and carry on the war now waged against our Government, it becomes the duty of all officers and loyal citizens to use every proper means to induce the slaves to leave their masters, and cease lending aid and comfort to the rebels. 3. That in all cases it becomes the duty of the Executive, and of all Executive officers and loyal citizens, to aid, assist and encourage those slaves who have escaped from rebel masters to continue their flight and maintain their liberty. 4. That to send back a fugitive slave to a rebel master would be lending aid and assistance to the rebellion. That those who arrest and send back such fugitives identify themselves with the enemies of our Government, and should be indicted as traitors. J. R. GIDDINGS. MONTREAL, June 6, 1861. Accordingly, let old Virginia begin to put her house in order, and pack up for the removal of her half million of slaves, for fear of the impending storm. She has invited it, and only a speedy repentance will save her from being dashed to pieces among the rocks and surging billows of this dreadful revolution.--New York Herald, April 22. RETALIATION. The New York Courier and Enquirer, in an editorial, apparently from Gen. Webb's own hand, discourses as follows:-- "Most assuredly these madmen are calling down upon themselves a fearful retribution. We are no Abolitionists, as the columns of the Courier and Enquirer, for the whole period of its existence, now thirty-four years, will abundantly demonstrate. And for the whole of that period, except the first six months of its infancy, it has been under our exclusive editorial charge. "Never, during that long period, has an Abolition sentiment found its way into our columns; and for the good reason, that we have respected, honored and revered the Constitution, and recognized our duty to obey and enforce its mandates. But Rebellion stalks through the land. A confederacy of slave States has repudiated that Constitution; and, placing themselves beyond its pale, openly seeks to destroy it, and ruin all whom it, protects. They no longer profess any obedience to its requirements; and, of course, cannot claim its protection. By their own act, our duty to respect their rights, under that Constitution, ceases with their repudiation of it; and our right to liberate their slave property is as clear as would be our right to liberate the slaves of Cuba in a war with Spain. "A band of pirates threaten and authorize piracy upon Northern commerce; and from the moment that threat is carried into execution, the fetters will fall from the manacled limbs of their slaves, and they will be encouraged and aided in the establishment of their freedom. Suppose Cuba were to issue letters of marque against our commerce, and, according to the Charleston Mercury, seize 'upon the rich prizes which may be coming from foreign lands,' does any sane man doubt that we should at once invade that island, and liberate her slaves? Or does any statesman or jurist question our right so to do? And why, then, should we hesitate to pursue a similar course in respect to the so-called Southern Confederacy? "Spain, as a well-established nation, and recognized as such by all the powers of the world, would have the right, according to the laws of nations, to adopt such a course of proceeding; but she would do it at her peril, and well weighing the consequences. But the rebel government of the slave States possesses no such right. The act would be no more or less than piracy; and we should not only hang at the yard-arm all persons caught in the practice, but we should be compelled, in self-defence, to carry the war into Africa, and deal with the slaves of the Confederacy precisely as we should, under similar circumstances, deal with those of Cuba. "'The richly laden ships of the North,' says the Mobile Advertiser, 'swarm on every sea, and are absolutely unprotected. The harvest is ripe.' We admit it; but gather it if you dare. Venture upon the capture of the poorest of those richly laden ships,' and, from that moment, your slaves become freemen, doing battle in Freedom's cause. 'Hundreds and hundreds of millions of the property of the enemy invite us to spoil him--to spoil these Egyptians,' says the same paper. True, but you dare not venture upon the experiment; or, if you should be so rash as to make the experiment, your fourteen hundred millions of slave property will cease to exist, and you will find four millions of liberated slaves in your midst, wreaking upon their present masters the smothered vengeance of a servile race, who, for generation after generation, have groaned under the lash of the negro driver and his inhuman employer. "'The risk of the privateer,' says the same organ of the rebel confederacy, 'will still be trifling; but he will continue to reap the harvest.' His risk will only be his neck, and his 'harvest' will be a halter. But the risk, nay, the certainty of the punishment to be visited upon the slave confederacy, will be far greater--of infinitely greater magnitude than they can well conceive; because it will be no more or less than the loss of all their slave property, accompanied with the necessity of contending, hand to hand, for their lives, with the servile race so long accustomed to the lash, and the torture, and the branding and maiming of their inhuman masters; a nation of robbers, who now, in the face of the civilized world, repudiate their just debts, rob banks and mints, sell freemen captured in an unarmed vessel into perpetual slavery, trample upon law and order, insult our flag, capture our forts and arsenals, and, finally, invite pirates to prey upon our commerce! "Such a nest of pirates may do some mischief, and greatly alarm the timid. But the men of the North know how to deal with them; and we tell them, once for all, that, if they dare grant a solitary letter of marque, and the person or persons acting under it venture to assail the poorest of our vessels in the peaceful navigation of the ocean, or the coasts and rivers of our country--from that moment their doom is sealed, and slavery ceases to exist. We speak the unanimous sentiment of our people; and to that sentiment all in authority will be compelled to bow submissively. So let us hear no more of the idle gasconade of 'the Chivalry' of a nest of robbers, who seek to enlarge the area of their public and private virtues, &c." This is very plain talk, and cannot easily be misapprehended by those whom it concerns. O. A. BROWNSON ON THE WAR. There is neither reason nor justice in Massachusetts, New York, New Jersey, Pennsylvania and the great States northwest of the Ohio pouring out their blood and treasure for the gratification of the slaveholding pretensions of Maryland, Kentucky or Missouri. The citizens of these States who own slaves are as much bound, if the preservation of the Union requires it, to give up their property in slaves, as we at the farther North are to pour out our blood and treasure to put down a rebellion which threatens alike them and us. If they love their few slaves more than they do the Union, let them go out of the Union. We are stronger to fight the battles of the Union without them than we are with them. But we have referred only to the slaves in the rebellious States, and if it is, or if it becomes, a military necessity to liberate all the slaves of the Union, and to treat the whole present slave population as freemen and citizens, it would be no more than just and proper that, at the conclusion of the war, the citizens of loyal States, or the loyal citizens of loyal sections of the rebellious States, should be indemnified at a reasonable rate for the slaves that may have been liberated. The States and sections of States named have not a large number of slaves, and if the Union is preserved, it would not be a very heavy burden on it to pay their ransom; and to paying it, no patriot or loyal citizen of the free States would raise the slightest objection. The objection therefore urged, though grave, need not be regarded as insuperable; and we think the advantages of the measure, in a military point of view, would be far greater than any disadvantage we have to apprehend from it. Whether the time for this important measure has come or not, it is for the President, as Commander-in-Chief of our armies, to determine. But, in our judgment, no single measure could be adopted by the government that would more effectually aid its military operations, do more to weaken the rebel forces, and to strengthen our own. It seems to us, then, highly important, in every possible view of the case, that the Federal Government should avail itself of the opportunity given it by the Southern rebellion to perform this act of justice to the negro race; to assimilate the labor system of the South to that of the North; to remove a great moral and political wrong; and to wipe out the foul stain of slavery, which has hitherto sullied the otherwise bright escutcheon of our Republic. We are no fanatics on the subject of slavery, as is well known to our readers, and we make no extraordinary pretensions to modern philanthropy; but we cannot help fearing that, if the government lets slip the present opportunity of doing justice to the negro race, and of placing our republic throughout in harmony with modern civilization, God, who is especially the God of the poor and the oppressed, will never give victory to our arms, or suffer us to succeed in our efforts to suppress rebellion and restore peace and integrity in the Union. THE NEW YORK HERALD ON THE WAR. With the secession of Virginia, there is going to be enacted on the banks of the Potomac one of the most terrible conflicts the world has ever witnessed; and Virginia, with all her social systems, will be doomed, and swept away.--New York Herald, April 19. We must also admonish the people of Maryland that we of the North have the common right of way through their State to our National Capital. But let her join the revolutionists, and her substance will be devoured by our Northern legions as by an Arabian cloud of locusts, and her slave population will disappear in a single campaign. A Northern invasion of Virginia and of Kentucky, if necessary, carrying along with it the Canadian line of African freedom, as it must do from the very nature of civil war, will produce a powerful Union reaction. The slave population of the border States will be moved in two directions. One branch of it, without the masters, will be moved Northward, and the other branch, with the masters, will be moved Southward, so that, by the time the Northern army will have penetrated to the centre of the border slave States, they will be relieved of the substance and abstract rights of slave property for all time to come. Finally, the revolted States having appealed to the sword of revolution to redress their wrongs, may soon have to choose between submission to the Union or the bloody extinction of slavery, from the absence of any law, any wish, any power for its protection.-- Ibid, April 20. By land and water, if she places herself in the attitude of rebellion, Maryland may be overrun and subdued in a single week, including the extinction of slavery within her own borders; for war makes its own laws. We are less concerned about Washington than about Maryland. Loyal to the Union, she is perfectly safe, negroes and all; disloyal to the Union, she may be crushed, including her institution of slavery. Let her stand by the Union, and the Union will protect and respect her-- slavery and all.--Ibid, April 21. Virginia, next to Maryland, will be subjected to this test. She has seceded, and hence she will probably risk the breaking of every bone in her body. If so, we fear that every bone in her body will be broken, including her backbone of slavery. The day is not far off when the Union men of the revolted States will be asked to come to the relief of their misguided brethren, for, otherwise, the war which they have chosen to secure their institution of slavery may result in wiping it out of existence.--Ibid, April 23. In advance of this movement, President Lincoln should issue his proclamation, guaranteeing the complete protection of all loyal Union men and their property, but warning the enemies of the Government of the dangers of confiscation, negroes included. If Virginia resists, the contest cannot last very long, considering her large slave population, which will either become fugitives or take up arms against their masters.--Ibid, April 24. That we are to have a fight, that Virginia and Maryland will form the battle-ground, that the Northern roughs will sweep those States with fire and sword, is beyond peradventure. They have already been excited to the boiling point by the rich prospect of plunder held out by some of their leaders, and will not be satisfied unless they have a farm and a nigger each. There is no sort of exaggeration about these statements, as the people of the border States will shortly ascertain to their cost. The character of the coming campaign will be vindictive, fierce, bloody, and merciless beyond parallel in ancient or modern history.--Ibid, April 28. The class of population which is recruiting in our large cities, the regiments forming for service in behalf of the Union, can never be permanently worsted. They will pour down upon the villages and cities of Virginia and Maryland, and leave a desolate track behind them, and inspire terror in whatever vicinity they approach.--Ibid, April 29. It will be idle for Tennessee and Kentucky to attempt to escape from the issue, and to remain at peace, while the remainder of the country is at war. Neutrality will be considered opposition, and the result of a general frontier war will be, that slavery, as a domestic institution of the United States; will be utterly annihilated.--Ibid, April 30. The rebellion must be put down by some means or another, else it will put us down; and if nothing else will do, even to proclaim the abolition of slavery would be legitimate. All is fair in war...Gen. Fremont and the other Generals must act according to circumstances, and their own judgment, unless when otherwise ordered...If he is acting on his own responsibility, he is only carrying out the Confiscation Act, so far as the slaves are concerned...We have no fear of the result.--N. Y. Herald, Sept. 3. BUT ONE WAY OUT. To our apprehension, God is fast closing every avenue to settled peace but by emancipation. And one of the most encouraging facts is that the eyes of the nation are becoming turned in that direction quite as rapidly as could have been anticipated. Some men of conservative antecedents, like Dickinson of New York, saw this necessity from the first. But it takes time to accustom a whole people to the thought, and to make them see the necessity. It was impossible for Northern men to fathom the spirit and the desperate exigencies of the slave system and its outbreak, and consequently to comprehend the desperate nature of the struggle. We were like a policeman endeavoring to arrest a boy-ruffian, and, for the sake of his friends and for old acquaintance sake, doing it with all possible tenderness for his person and his feelings--till all of a sudden he feels the grip on his throat and the dagger's point at his breast, and knows that it is a life-and-death grapple. Slaveholding is simply piracy continued. Our people are beginning to spell out that short and easy lesson in the light of perjury, robbery, assassination, poisoning, and all the more than Algerine atrocities of this rebellion. It cannot require many more months of schooling like the last eight, to convince the dullest of us what are its essence and spirit. Our people also are rapidly finding out that no peaceful termination of this war will be permitted now by the Slave Power, except by its thorough overthrow. The robber has thrown off the mask, and says now to the nation, "Your life or mine!" Even the compromising Everett has boldly told the South, "To be let alone is not all you ask--but you demand a great deal more." And in his late oration, he has most powerfully portrayed the impossibility of a peaceful disunion. Many men, some anti-slavery, were at first inclined to yield to the idea of a separation. But every day's experience is scattering that notion to the winds. The ferocious spirit exhibited from the first by the Secessionists towards all dissentients, the invasion of Western Virginia by Eastern, the threats to put down loyal Kentucky, the foray in Missouri, the plan for capturing Washington, which was part of the original scheme, are convincing proofs, that if by any pacification whatever our troops were disbanded to-day, to-morrow a Southern army would be on the march for Washington, Philadelphia, New York, and perhaps Chicago. The South has sufficiently declared the cause of this trouble to be the irreconcilable conflict between their institutions and the fundamental principles of this government. While the cause remains in full strength, and after it has once burst forth in bloody and final collision, nothing will ever check that strife, whether in or out of the Union. The cause must be eradicated. Meanwhile, our own position, both before the world and in our own struggle at home, is a false one, so long as we blink the real issue. Many indications are hopeful. Gen. Butler's letter to the Secretary of War, and the Secretary's reply, look in the right direction. The Confiscation Act is pregnant with great consequences, and may yet be so used as to become an emancipation act in all the rebel States. It is high time it were so used. We have serious doubts whether the rebellion will ever be suppressed till that trenchant weapon is wielded. We reverently doubt whether the Lord means it shall be. The quiet passage of the Confiscation Act was an immense step of governmental progress. Perhaps it was all that the nation as a whole and the government were ready for. It may answer as a keen wedge. But we trust that, in December, Congress will make clean work by the full emancipation of all slaves in the rebel States, and by provision in some way for the speedy and certain extinction of slavery in the loyal States. To accomplish the latter event, we would ourselves willingly submit to any proper amount of pecuniary burden, provided it could be so arranged as not to recognize a right of property in man.--Chicago Congregational Herald. PROCLAMATION OF GEN. FREMONT. HEADQUARTERS, WESTERN DIVISION, St. Louis, Aug. 30, 1861. Circumstances; in my judgment, are of sufficient urgency to render it necessary that the Commanding General of this Department should assume administrative powers of the State. Its disorganized condition, helplessness of civil authority, and the total insecurity of life and devastation of property by bands of murderers and marauders, who infest nearly every county in the State, and avail themselves of public misfortunes and the vicinity of a hostile force to gratify private and neighborhood vengeance, and who find an enemy wherever they find plunder, finally demand the severest measures to repress the daily increasing crimes and outrages which are driving off the inhabitants and ruining the State. In this condition, the public safety and the success of our arms require unity of purpose, without let or hindrance, to the prompt administration of affairs. In order, therefore, to suppress disorder, maintain the public peace, and give security to the persons and property of loyal citizens, I do hereby extend and declare martial law throughout the State of Missouri. The lines of the army occupation in this State are, for the present, declared to extend from Leavenworth by way of posts to Jefferson City, Rolla and Ironton, to Cape Girardeau, on the Mississippi river. All persons who shall be taken with arms in their hands, within these lines, shall be tried by court martial, and, if found guilty, shall be shot. Real and personal property, owned by persons who shall take up arms against the United States, or who shall be directly proven to have taken an active part with the enemy in the field, is declared confiscated to public use, and their slaves, if any they have, are hereby declared free men. All persons who shall be proven to, have destroyed, after the publication of this order, railroad tracks, bridges or telegraph lines, shall suffer the extreme penalty of the law. All persons engaged in treasonable correspondence, in giving or procuring aid to the enemy, in fomenting turmoils and disturbing public tranquility by creating or circulating false reports or incendiary documents, are warned that they are exposing themselves. All persons who have been led away from allegiance are requested to return to their homes forthwith. Any such absence, without sufficient cause, will be held to be presumptive evidence against them. The object of this declaration is to place in the hands of the military authorities power to give instantaneous effect to the existing laws, and to supply such deficiencies as the conditions of the war demand; but it is not intended to suspend the ordinary tribunals of the country where law will be administered by civil officers in the usual manner, and with their customary authority, while the same can be peaceably administered. The Commanding General will labor vigilantly for the public welfare, and, by his efforts for their safety, hopes to obtain not only acquiescence, but the active support of the people of the country. (Signed,) J. C. FREMONT, Major General Commanding. SLAVERY HAS DONE IT. Let us not for one moment lose sight of this fact. We go into this war not merely to sustain the government and defend the Constitution. There is a moral principle involved. How came that government in danger? What has brought this wicked war, with all its evils and horrors, upon us? Whence comes the necessity for this uprising of the people? To these questions, there can be but one answer. SLAVERY HAS DONE IT. That accursed system, which has already cost us so much, has at length culminated in this present ruin and confusion. That system must be put down. The danger must never be suffered to occur again. The evil must be eradicated, cost what it may. We are for no half-way measures. So long as the slave system kept itself within the limits of the Constitution, we were bound to let it alone, and to respect its legal rights; but when, overleaping those limits, it bids defiance to all law, and lays its vile hands on the sacred altar of liberty and the sacred flag of the country, and would overturn the Constitution itself, thenceforth slavery has no constitutional rights. It is by its own act an outlaw. It can never come back again into the temple, and claim a place by right among the worshippers of truth and liberty. It has ostracised itself, and that for ever. Let us not be told, then, that the matter of slavery does not enter into the present controversy--that it is merely a war to uphold the government and put down secession. It is not so. So far from this, slavery is the very heart and head of this whole struggle. The conflict is between freedom on the one hand, maintaining its rights, and slavery on the other, usurping and demanding that to which it has no right. It is a war of principle as well as of self-preservation; and that is but a miserable and short-sighted policy which looks merely at the danger and overlooks the cause; which seeks merely to put out the fire, and lets the incendiary go at large, to repeat the experiment at his leisure. We must do both--put out the fire, and put out the incendiary too. We meet the danger effectually only by eradicating the disease.--Erie True American. THE SLAVES AS A MILITARY ELEMENT. The total white population of the eleven States now comprising the confederacy is six million, and, therefore, to fill up the ranks of the proposed army (600,000) about ten percent of the entire white population will be required. In any other country than our own, such a draft could not be met, but the Southern States can furnish that number of men, and still not leave the material interests of the country in a suffering condition. Those who are incapacitated for bearing arms can oversee the plantations, and the negroes can go on undisturbed in their usual labors. In the North, the case is different; the men who join the army of subjugation are the laborers, the producers, and the factory operatives. Nearly every man from that section, especially those from the rural districts, leaves some branch of industry to suffer during his absence. The institution of slavery in the South alone enables her to place in the field a force much larger in proportion to her white population than the North, or indeed any country which is dependent entirely on free labor. The institution is a tower of strength to the South, particularly at the present crisis, and our enemies will be likely to find that the "moral cancer," about which their orators are so fond of prating, is really one of the most effective weapons employed against the Union by the South. Whatever number of men may be needed for this war, we are confident our people stand ready to furnish. We are all enlisted for the war, and there must be no holding back until the independence of the South is fully acknowledged.--Montgomery (Ala.) Adv. A NOVEL SIGHT. A procession of several hundred stout negro men, members of the "domestic institution," marched through our streets yesterday in military order, under the command of Confederate officers. They were well armed and equipped with shovels, axes, blankets, &c. A merrier set never were seen. They were brimful of patriotism, shouting for Jeff. Davis and singing war songs, and each looked as if he only wanted the privilege of shooting an Abolitionist. An Abolitionist could not have looked upon this body of colored recruits for the Southern army without strongly suspecting that his intense sympathy for the "poor slave" was not appreciated, that it was wasted on an ungrateful subject. The arms of these colored warriors were rather mysterious. Could it be that those gleaming axes were intended to drive into the thick skulls of the Abolitionists the truth, to which they are wilfully blind, that their interference in behalf of Southern slaves is neither appreciated nor desired; or that those shovels were intended to dig trenches for the interment of their carcasses? It may be that the shovels are to be used in digging ditches, throwing up breastworks, or the construction of masked batteries, those abominations to every abolition Paul Pry who is so unlucky as to stumble upon them.--Memphis Avalanche, Sept. 3. 
2373	----	THE PATH OF THE LAW by Oliver Wendell Holmes, Jr. 10 HARVARD LAW REVIEW 457 (1897) When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right. The number of our predictions when generalized and reduced to a system is not unmanageably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time. It is a great mistake to be frightened by the ever-increasing number of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were burned. The use of the earlier reports is mainly historical, a use about which I shall have something to say before I have finished. I wish, if I can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the study, I wish to point out an ideal which as yet our law has not attained. The first thing for a businesslike understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things. I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of the first importance for the object which we are here to consider--a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. I have just shown the practical reason for saying so. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy. For instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached. Yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at all events pass the limit of interference, as many consciences would draw it. Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law. No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it. But this limit of power is not coextensive with any system of morals. For the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time. I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced. No one will deny that wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones. The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. Take again a notion which as popularly understood is the widest conception which the law contains--the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. But what does it mean to a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. But from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is proven by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax. On the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is under compulsion or free. Leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question. In both cases the party taking another man's property has to pay its fair value as assessed by a jury, and no more. What significance is there in calling one taking right and another wrong from the point of view of the law? It does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to allow it. If it matters at all, still speaking from the bad man's point of view, it must be because in one case and not in the other some further disadvantages, or at least some further consequences, are attached to the act by law. The only other disadvantages thus attached to it which I ever have been able to think of are to be found in two somewhat insignificant legal doctrines, both of which might be abolished without much disturbance. One is, that a contract to do a prohibited act is unlawful, and the other, that, if one of two or more joint wrongdoers has to pay all the damages, he cannot recover contribution from his fellows. And that I believe is all. You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law. Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it--and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many others cases, I am content to abide with him. In Bromage v. Genning, a prohibition was sought in the Kings' Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. Sergeant Harra for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. This goes further than we should go now, but it shows what I venture to say has been the common law point of view from the beginning, although Mr. Harriman, in his very able little book upon Contracts has been misled, as I humbly think, to a different conclusion. I have spoken only of the common law, because there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense. These are the relatively few in which equity will grant an injunction, and will enforce it by putting the defendant in prison or otherwise punishing him unless he complies with the order of the court. But I hardly think it advisable to shape general theory from the exception, and I think it would be better to cease troubling ourselves about primary rights and sanctions altogether, than to describe our prophecies concerning the liabilities commonly imposed by the law in those inappropriate terms. I mentioned, as other examples of the use by the law of words drawn from morals, malice, intent, and negligence. It is enough to take malice as it is used in the law of civil liability for wrongs what we lawyers call the law of torts--to show that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. Three hundred years ago a parson preached a sermon and told a story out of Fox's Book of Martyrs of a man who had assisted at the torture of one of the saints, and afterward died, suffering compensatory inward torment. It happened that Fox was wrong. The man was alive and chanced to hear the sermon, and thereupon he sued the parson. Chief Justice Wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice. He took malice in the moral sense, as importing a malevolent motive. But nowadays no one doubts that a man may be liable, without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage. In stating the case in pleading, we still should call the defendant's conduct malicious; but, in my opinion at least, the word means nothing about motives, or even about the defendant's attitude toward the future, but only signifies that the tendency of his conduct under known circumstances was very plainly to cause the plaintiff temporal harm. In the law of contract the use of moral phraseology led to equal confusion, as I have shown in part already, but only in part. Morals deal with the actual internal state of the individual's mind, what he actually intends. From the time of the Romans down to now, this mode of dealing has affected the language of the law as to contract, and the language used has reacted upon the thought. We talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other's assent. Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties thinks that the promise will be construed to mean at once, within a week. The other thinks that it means when he is ready. The court says that it means within a reasonable time. The parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. In my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs--not on the parties' having meant the same thing but on their having said the same thing. Furthermore, as the signs may be addressed to one sense or another--to sight or to hearing--on the nature of the sign will depend the moment when the contract is made. If the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. If it is necessary that the minds of the parties meet, there will be no contract until the acceptance can be read; none, for example, if the acceptance be snatched from the hand of the offerer by a third person. This is not the time to work out a theory in detail, or to answer many obvious doubts and questions which are suggested by these general views. I know of none which are not easy to answer, but what I am trying to do now is only by a series of hints to throw some light on the narrow path of legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it. Of the first of these I have said enough. I hope that my illustrations have shown the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way. For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought. So much for the limits of the law. The next thing which I wish to consider is what are the forces which determine its content and its growth. You may assume, with Hobbes and Bentham and Austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the Zeitgeist, or what you like. It is all one to my present purpose. Even if every decision required the sanction of an emperor with despotic power and a whimsical turn of mind, we should be interested none the less, still with a view to prediction, in discovering some order, some rational explanation, and some principle of growth for the rules which he laid down. In every system there are such explanations and principles to be found. It is with regard to them that a second fallacy comes in, which I think it important to expose. The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. The condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. So in the broadest sense it is true that the law is a logical development, like everything else. The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come. This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer's "Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors." Why is a false and injurious statement privileged, if it is made honestly in giving information about a servant? It is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong. Why is a man at liberty to set up a business which he knows will ruin his neighborhood? It is because the public good is supposed to be best subserved by free competition. Obviously such judgments of relative importance may vary in different times and places. Why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them? It is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal. Since the last words were written, I have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations. There is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus. Indeed, I think that even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed. Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really a question how far it is desirable that the public should insure the safety of one whose work it uses. It might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitrarily interrupting the regular course of recovery, most likely in the case of an unusually conscientious plaintiff, and therefore better done away with. On the other hand, the economic value even of a life to the community can be estimated, and no recovery, it may be said, ought to go beyond that amount. It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum. I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions. So much for the fallacy of logical form. Now let us consider the present condition of the law as a subject for study, and the ideal toward which it tends. We still are far from the point of view which I desire to see reached. No one has reached it or can reach it as yet. We are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. The development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step, mind, like matter, simply obeying a law of spontaneous growth. It is perfectly natural and right that it should have been so. Imitation is a necessity of human nature, as has been illustrated by a remarkable French writer, M. Tard, in an admirable book, Les Lois de l'Imitation. Most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. The reason is a good one, because our short life gives us no time for a better, but it is not the best. It does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. In regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for his social ideals, or for the principles which he thinks should be embodied in legislation. He is content if he can prove them best for here and now. He may be ready to admit that he knows nothing about an absolute best in the cosmos, and even that he knows next to nothing about a permanent best for men. Still it is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words. At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. I am thinking of the technical rule as to trespass ab initio, as it is called, which I attempted to explain in a recent Massachusetts case. Let me take an illustration, which can be stated in a few words, to show how the social end which is aimed at by a rule of law is obscured and only partially attained in consequence of the fact that the rule owes its form to a gradual historical development, instead of being reshaped as a whole, with conscious articulate reference to the end in view. We think it desirable to prevent one man's property being misappropriated by another, and so we make larceny a crime. The evil is the same whether the misappropriation is made by a man into whose hands the owner has put the property, or by one who wrongfully takes it away. But primitive law in its weakness did not get much beyond an effort to prevent violence, and very naturally made a wrongful taking, a trespass, part of its definition of the crime. In modern times the judges enlarged the definition a little by holding that, if the wrong-doer gets possession by a trick or device, the crime is committed. This really was giving up the requirement of trespass, and it would have been more logical, as well as truer to the present object of the law, to abandon the requirement altogether. That, however, would have seemed too bold, and was left to statute. Statutes were passed making embezzlement a crime. But the force of tradition caused the crime of embezzlement to be regarded as so far distinct from larceny that to this day, in some jurisdictions at least, a slip corner is kept open for thieves to contend, if indicted for larceny, that they should have been indicted for embezzlement, and if indicted for embezzlement, that they should have been indicted for larceny, and to escape on that ground. Far more fundamental questions still await a better answer than that we do as our fathers have done. What have we better than a blind guess to show that the criminal law in its present form does more good than harm? I do not stop to refer to the effect which it has had in degrading prisoners and in plunging them further into crime, or to the question whether fine and imprisonment do not fall more heavily on a criminal's wife and children than on himself. I have in mind more far-reaching questions. Does punishment deter? Do we deal with criminals on proper principles? A modern school of Continental criminalists plumes itself on the formula, first suggested, it is said, by Gall, that we must consider the criminal rather than the crime. The formula does not carry us very far, but the inquiries which have been started look toward an answer of my questions based on science for the first time. If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction. If, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishment fairly may be expected to help to keep it out of fashion. The study of criminals has been thought by some well known men of science to sustain the former hypothesis. The statistics of the relative increase of crime in crowded places like large cities, where example has the greatest chance to work, and in less populated parts, where the contagion spreads more slowly, have been used with great force in favor of the latter view. But there is weighty authority for the belief that, however this may be, "not the nature of the crime, but the dangerousness of the criminal, constitutes the only reasonable legal criterion to guide the inevitable social reaction against the criminal." The impediments to rational generalization, which I illustrated from the law of larceny, are shown in the other branches of the law, as well as in that of crime. Take the law of tort or civil liability for damages apart from contract and the like. Is there any general theory of such liability, or are the cases in which it exists simply to be enumerated, and to be explained each on its special ground, as is easy to believe from the fact that the right of action for certain well known classes of wrongs like trespass or slander has its special history for each class? I think that the law regards the infliction of temporal damage by a responsible person as actionable, if under the circumstances known to him the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except in cases where upon special grounds of policy the law refuses to protect the plaintiff or grants a privilege to the defendant. I think that commonly malice, intent, and negligence mean only that the danger was manifest to a greater or less degree, under the circumstances known to the actor, although in some cases of privilege malice may mean an actual malevolent motive, and such a motive may take away a permission knowingly to inflict harm, which otherwise would be granted on this or that ground of dominant public good. But when I stated my view to a very eminent English judge the other day, he said, "You are discussing what the law ought to be; as the law is, you must show a right. A man is not liable for negligence unless he is subject to a duty." If our difference was more than a difference in words, or with regard to the proportion between the exceptions and the rule, then, in his opinion, liability for an act cannot be referred to the manifest tendency of the act to cause temporal damage in general as a sufficient explanation, but must be referred to the special nature of the damage, or must be derived from some special circumstances outside of the tendency of the act, for which no generalized explanation exists. I think that such a view is wrong, but it is familiar, and I dare say generally is accepted in England. Everywhere the basis of principle is tradition, to such an extent that we even are in danger of making the role of history more important than it is. The other day Professor Ames wrote a learned article to show, among other things, that the common law did not recognize the defence of fraud in actions upon specialties, and the moral might seem to be that the personal character of that defence is due to its equitable origin. But if, as I said, all contracts are formal, the difference is not merely historical, but theoretic, between defects of form which prevent a contract from being made, and mistaken motives which manifestly could not be considered in any system that we should call rational except against one who was privy to those motives. It is not confined to specialties, but is of universal application. I ought to add that I do not suppose that Mr. Ames would disagree with what I suggest. However, if we consider the law of contract, we find it full of history. The distinctions between debt, covenant, and assumpsit are merely historical. The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi contracts, is merely historical. The doctrine of consideration is merely historical. The effect given to a seal is to be explained by history alone. Consideration is a mere form. Is it a useful form? If so, why should it not be required in all contracts? A seal is a mere form, and is vanishing in the scroll and in enactments that a consideration must be given, seal or no seal. Why should any merely historical distinction be allowed to affect the rights and obligations of business men? Since I wrote this discourse I have come on a very good example of the way in which tradition not only overrides rational policy, but overrides it after first having been misunderstood and having been given a new and broader scope than it had when it had a meaning. It is the settled law of England that a material alteration of a written contract by a party avoids it as against him. The doctrine is contrary to the general tendency of the law. We do not tell a jury that if a man ever has lied in one particular he is to be presumed to lie in all. Even if a man has tried to defraud, it seems no sufficient reason for preventing him from proving the truth. Objections of like nature in general go to the weight, not to the admissibility, of evidence. Moreover, this rule is irrespective of fraud, and is not confined to evidence. It is not merely that you cannot use the writing, but that the contract is at an end. What does this mean? The existence of a written contract depends on the fact that the offerer and offeree have interchanged their written expressions, not on the continued existence of those expressions. But in the case of a bond, the primitive notion was different. The contract was inseparable from the parchment. If a stranger destroyed it, or tore off the seal, or altered it, the obligee count not recover, however free from fault, because the defendant's contract, that is, the actual tangible bond which he had sealed, could not be produced in the form in which it bound him. About a hundred years ago Lord Kenyon undertook to use his reason on the tradition, as he sometimes did to the detriment of the law, and, not understanding it, said he could see no reason why what was true of a bond should not be true of other contracts. His decision happened to be right, as it concerned a promissory note, where again the common law regarded the contract as inseparable from the paper on which it was written, but the reasoning was general, and soon was extended to other written contracts, and various absurd and unreal grounds of policy were invented to account for the enlarged rule. I trust that no one will understand me to be speaking with disrespect of the law, because I criticise it so freely. I venerate the law, and especially our system of law, as one of the vastest products of the human mind. No one knows better than I do the countless number of great intellects that have spent themselves in making some addition or improvement, the greatest of which is trifling when compared with the mighty whole. It has the final title to respect that it exists, that it is not a Hegelian dream, but a part of the lives of men. But one may criticise even what one reveres. Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it, and, when I perceive what seems to me the ideal of its future, if I hesitated to point it out and to press toward it with all my heart. Perhaps I have said enough to show the part which the study of history necessarily plays in the intelligent study of the law as it is today. In the teaching of this school and at Cambridge it is in no danger of being undervalued. Mr. Bigelow here and Mr. Ames and Mr. Thayer there have made important contributions which will not be forgotten, and in England the recent history of early English law by Sir Frederick Pollock and Mr. Maitland has lent the subject an almost deceptive charm. We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made. In the present state of political economy, indeed, we come again upon history on a larger scale, but there we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost. We learn that for everything we have we give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect. There is another study which sometimes is undervalued by the practical minded, for which I wish to say a good word, although I think a good deal of pretty poor stuff goes under that name. I mean the study of what is called jurisprudence. Jurisprudence, as I look at it, is simply law in its most generalized part. Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions. One mark of a great lawyer is that he sees the application of the broadest rules. There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. The same state of mind is shown in all our common digests and textbooks. Applications of rudimentary rules of contract or tort are tucked away under the head of Railroads or Telegraphs or go to swell treatises on historical subdivisions, such as Shipping or Equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law. If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. Therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth. I have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes. I have illustrated their importance already. If a further illustration is wished, it may be found by reading the Appendix to Sir James Stephen's Criminal Law on the subject of possession, and then turning to Pollock and Wright's enlightened book. Sir James Stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one. The trouble with Austin was that he did not know enough English law. But still it is a practical advantage to master Austin, and his predecessors, Hobbes and Bentham, and his worthy successors, Holland and Pollock. Sir Frederick Pollock's recent little book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of Roman models. The advice of the elders to young men is very apt to be as unreal as a list of the hundred best books. At least in my day I had my share of such counsels, and high among the unrealities I place the recommendation to study the Roman law. I assume that such advice means more than collecting a few Latin maxims with which to ornament the discourse--the purpose for which Lord Coke recommended Bracton. If that is all that is wanted, the title De Regulis Juris Antiqui can be read in an hour. I assume that, if it is well to study the Roman Law, it is well to study it as a working system. That means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the Roman law must explained. If any one doubts me, let him read Keller's Der Romische Civil Process und die Actionen, a treatise on the praetor's edict, Muirhead's most interesting Historical Introduction to the Private Law of Rome, and, to give him the best chance, Sohn's admirable Institutes. No. The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price. We have too little theory in the law rather than too much, especially on this final branch of study. When I was speaking of history, I mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. In that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained. Let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as I know, never have been explained or theorized about in any adequate way. I refer to statutes of limitation and the law of prescription. The end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? Sometimes the loss of evidence is referred to, but that is a secondary matter. Sometimes the desirability of peace, but why is peace more desirable after twenty years than before? It is increasingly likely to come without the aid of legislation. Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example. Now if this is all that can be said about it, you probably will decide a case I am going to put, for the plaintiff; if you take the view which I shall suggest, you possibly will decide it for the defendant. A man is sued for trespass upon land, and justifies under a right of way. He proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant's agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained. Has the defendant gained a right or not? If his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly to be supposed, there has been no such neglect, and the right of way has not been acquired. But if I were the defendant's counsel, I should suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. Sir Henry Maine has made it fashionable to connect the archaic notion of property with prescription. But the connection is further back than the first recorded history. It is in the nature of man's mind. A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped. I have been speaking about the study of the law, and I have said next to nothing about what commonly is talked about in that connection--text-books and the case system, and all the machinery with which a student comes most immediately in contact. Nor shall I say anything about them. Theory is my subject, not practical details. The modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode. Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. For the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge. I remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men. But the weak and foolish must be left to their folly. The danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote. I heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults. One of his deductions was, "For lack of imagination, five dollars." The lack is not confined to valets. The object of ambition, power, generally presents itself nowadays in the form of money alone. Money is the most immediate form, and is a proper object of desire. "The fortune," said Rachel, "is the measure of intelligence." That is a good text to waken people out of a fool's paradise. But, as Hegel says, "It is in the end not the appetite, but the opinion, which has to be satisfied." To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want great examples, read Mr. Leslie Stephen's History of English Thought in the Eighteenth Century, and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law. 
26021	----	generously made available by The Internet Archive/American Libraries.) SIOUX INDIAN COURTS AN ADDRESS DELIVERED BY DOANE ROBINSON OF PIERRE, SOUTH DAKOTA BEFORE THE SOUTH DAKOTA BAR ASSOCIATION AT PIERRE, SOUTH DAKOTA JANUARY 21, 1909 R. C. SESSIONS & SONS SIOUX FALLS S. D. SIOUX INDIAN COURTS In their primitive life the Sioux Indians of North America had an intelligent system of jurisprudence, varying somewhat in the different bands, as our court practice varies in the several states, but nevertheless recognizing the same general principles throughout the confederacy.[1] [1] Most writers upon Indian life have noted the existence of these courts. Since undertaking this paper, I have consulted Hump, One Bull, Wakutemani and Simon Kirk, all intelligent Sioux and, save as otherwise noted, they are my authorities for the statements herein contained. It is not an easy thing to determine the laws or the practices of an unlettered people, who have abandoned the wild and primitive life to live under regulations prescribed by their conquerors, and who must depend upon tradition and recollection for the practices of the old life; but fortunately intelligent observers have from time to time, during the past two and one half centuries, noted their observations, and these, supplemented by the recollections of the older men now living, give to us a fairly clear understanding of the courts and the legal practices of these people. Primarily the Sioux government was by clans,--patriarchal; but within the clan it very nearly approached the representative republican form. The council was the representative body which gave expression to the will of the people. True the council was selected by the chief of the clan, but his very tenure of office depended upon his using the nicest discretion in inviting into his cabinet the men of character, valor and influence, so that the body was almost invariably entirely representative of popular views and interests. Caste cut a considerable figure; indeed it has been said by those most intimate with Sioux life that there is as much caste among the Dakotas as among the Hindus.[2] Only high caste men of course would be permitted to sit in the deliberations, but when a council was to be convened the ordinary practice was for the chief's crier to go out and announce to the camp that a matter was to be considered in council, and the head men at once assembled and seated themselves in the council circle as a matter of course and of right.[3] The chief, unquestionably a man of courage and physical power, was an executive officer who rarely asserted arbitrary rule, particularly in civil affairs, for the Sioux were too high spirited a people to tolerate anything savoring of despotism. Usually he was suave, diplomatic and tolerant, and enjoyed the affection and veneration of his people. Most public affairs were determined in the general council, including many subjects naturally falling within the jurisdiction of courts of justice, but aside from the council were two distinct courts, one exercising jurisdiction in matters civil and criminal in times of peace; the other taking the broadest and most comprehensive jurisdiction of all things military, and in time of war assuming jurisdiction in all of the affairs of the people, arbitrarily placing the camp under martial law. [2] Miss Mary C. Collins, for thirty-three years missionary among the Tetons, especially the Hunkpapa and Blackfoot bands. [3] Letter of Dr. Thomas L. Riggs, to writer, June, 1903. The judges of these courts were usually twelve in number and held their places by hereditary right, though occasionally some low caste man, through some brilliant exploit would break into this exclusive and aristocratic circle and sometimes even exercised dominating influence which the aristocrats dared not oppose, though he was still regarded as a plebian upstart, and was despised by the upper ten, and his rank died with him. Ordinarily from seven to twelve judges sat for the trial of causes, but sometimes even a greater number were permitted. The civil court in time of peace took cognizance of civil and criminal matters arising in the band. Civil actions usually grew out of disputes about the ownership of property and the court patiently heard the testimony of the parties and witnesses and at once determined the ownership of the article, delivered it to the successful litigant and the decision was never reviewed or questioned. A majority of the court determined the judgment. Criminal matters of which the court took cognizance were assaults, rapes, larceny and murder; all crimes against persons; and if committed against a member of the tribe were severely dealt with. Sometimes it was necessary to prove the crime by competent witnesses, and the court was the judge of the credibility of these who testified, but rarely, however, was it necessary to summon witnesses, for if the accused was really guilty it was a point of honor to admit the offense and take the consequences. Thus the real responsibility resting upon the court in most cases was to determine the penalty. Usually a severe penalty was imposed which could be satisfied by the payment of a certain number of horses or other specific property to the injured party, or his family, but if the offense was peculiarly repellent to the better sentiment of the camp the court might insist upon the summary infliction of the sentence imposed. This might be the death penalty, exile or whipping; or it might be the destruction of the teepee and other property of the convict. These latter penalties were, however, usually reserved for another class of offenses; crimes which were against the community rather than against an individual. These offenses were generally violations of the game laws and the offender could expect little mercy. How reasonable this policy was will be readily understood when we recall that the subsistence of the entire nation depended almost entirely upon the preservation of the wild game. The individual, who would wantonly kill game fit for food, or frighten it away needlessly from the vicinity of the camps was a public enemy and was treated accordingly. He was fined, his property destroyed, he was whipped, or if a persistent offender, he was reduced from his position as a hunter and made to do the menial duties of a squaw; the latter being the most humiliating and terrible sentence which could be imposed, deemed much worse than death and if the convict was a man of ordinary spirit he usually chose to commit suicide in preference.[4] [4] Interview with Joseph LaFramboise of Veblen, a Sisseton, at Sioux Falls, in October, 1900. For some offenses a convict was exiled from the camp, given an old teepee and a blanket, but no arms, and was allowed to make a living if he could. Sometimes he would go off and join some other band, but such conduct was not considered good form and he usually set up his establishment on some small hill near the home camp and made the best of the situation. If he conducted himself properly he was usually soon forgiven and restored to his rights in the community. If he went off to another people he lost all standing among the Sioux and was thereafter treated as an outlaw and a renegade. The entire band of Inkpaduta, once the terror of the Dakota frontier, was composed of these outlaws.[5] [5] Flandreau's Minnesota. The camp policeman was a most important officer of the court and he frequently took upon himself the adjudication of petty quarrels and the summary punishment of small offenses committed within his view. He was appointed by the chief for one or more days' service and he made the most of his brief span of authority. In addition to executing the orders of the court he was always on watch to preserve the tranquility of the camp during the day and he stood upon guard at night. When ordered to do a thing it was a point of honor to accomplish it or die in the attempt. He was a peace officer, delighting to fight for peace' sake at any time.[6] [6] Journal of Lewis and Clark September 26th and 27th, 1804. While the civil court was composed of the "elder statesmen" the military court was composed of the war chief and his most distinguished braves, and, as has been before suggested herein, exercised unlimited power in time of war and was implicitly obeyed. It took jurisdiction of all matters growing out of infractions of the "Articles of War" and of all the civil and criminal affairs of the tribe as well. There was no appeal from its judgments and its sentences were summarily executed. An anecdote will illustrate something of its practice: In the campaign of 1876, after the affair at Little Big Horn, Grey Eagle, a Hunkpapa headman of good family and with a good military record, was charged with stealing a horse from another warrior of the Sioux forces. He denied the charge but the property was in his possession and he could not satisfactorily explain his connection with it. He was placed upon trial, witnesses summoned and he was convicted of the theft and sentenced to be whipped, a punishment most befitting the mean estate of a squaw. The sentence was executed in full view of the entire camp. Grey Eagle continued in the campaign, fighting valiantly at every opportunity, but he was filled with an intense desire for revenge against the court and particularly against Sitting Bull, a plebian who had compelled recognition from the aristocrats, and whom the convict believed to be especially responsible for his humiliation. Though not apropos to this discussion it may be of interest if I shall add that after the lapse of fourteen years, one December morning in 1890 when a party of native policemen, inspired very largely by the aristocratic hatred for the presumptuous plebian, came down upon the home of Sitting Bull and effected his arrest and were taking him away through an excited throng of his friends, the voice of Grey Eagle, from out in the darkness shouted: "Sitting Bull is escaping, shoot him, shoot him!" whereupon began the outbreak which within the moment resulted in the death of the old medicine man and seventeen of the police and Indians.[7] It, too, may be of further interest to relate that at the present time Grey Eagle is the Chief Justice of the native court at Bullhead Station, South Dakota. [7] Related by Miss Mary C. Collins, April, 1908. Among the duties of this court was to determine the limits of each day's march when out upon a campaign, and to regulate the camping places. This was an important function, for the army subsisted off the country and unless the utmost care was exercised "the base of supplies" would be frightened away and the band subjected to starvation. A court very similar to the military court was likewise organized for each great hunting expedition and given absolute control of the general movement, but this hunting court did not interfere with the ordinary jurisdiction of the civil court in matters of personal disputes, personal injuries and the like. In 1841, General Henry H. Sibley, of Minnesota, proposed to the Indians residing about his home at Mendota that they go down to the "Neutral Strip" in Northern Iowa for a long hunt. The Sioux were agreeable, and to get the matter in form Sibley made a feast to which all of the natives were invited. After eating and smoking several hundred painted sticks were produced and were offered for the acceptance of each grown warrior. It was understood that whoever voluntarily accepted one of these sticks was solemnly bound to be of the hunting party under penalty of punishment by the soldiers if he failed. About one hundred and fifty men accepted. These men then detached themselves from the main body and after consultation selected ten of the bravest and most influential of the young men to act as members of the hunting court. These justices were called soldiers. Every member bound himself to obey all rules made by the court. A time was then fixed for the start. At the appointed time and place every one appeared but one man who lived twelve miles distant. Five of the court at once started out to round him up. In a few hours they returned with the recalcitrant and his family, and with his belongings packed upon his horses. He was duly penitent and not subjected to punishment, though he was severely threatened in case he again failed. General Sibley thus tells the story.[8] "We," Sibley and his white friends, "became subject to the control of the soldiers. At the close of each day the limits of the following day's hunt were announced by the soldiers, designated by a stream, grove, or other natural object. This limit was ordinarily about ten miles ahead of the proposed camping place and the soldiers each morning went forward and stationed themselves along the line to detect and punish any who attempted to pass it. The penalty attached to any violation of the rules of the camp was discretionary with the soldiers. In aggravated cases they would thresh the offender unmercifully. Sometimes they would cut the clothing of the man or woman entirely to pieces, slit down the lodge with their knives, break kettles and do other damage. I was made the victim on one occasion by venturing near the prohibited boundary. A soldier hid himself in the long grass until I approached sufficiently near when he sprang from his concealment and giving the soldiers' whoop rushed upon me. He seized my fine double barreled gun and raised it in the air as if with the intention of dashing it to the ground. I reminded him that guns were not to be broken, because they could be neither repaired or replaced. He handed me back the gun and then snatched my fur cap from my head, ordering me back to camp, where he said he would cut up my lodge in the evening. I had to ride ten miles bareheaded on a cold winter day, but to resist a soldier while in the discharge of duty is considered disgraceful in the extreme. When I reached the lodge I told Faribault of the predicament in which I was placed. We concluded the best policy, would be to prepare a feast to mollify them. We got together all the best things we could muster and when the soldiers arrived in the evening we went out and invited them to a feast in our lodge. The temptation was too strong to be resisted." They responded, ate their fill, smoked and forgave the "contempt of court," which indicates that the judiciary, even in that primitive time, was not wholly incorruptible. [8] Minnesota Historical Collections, Vol. III. * * * * * The modern Sioux Courts, organized under the authority of federal law and in accordance with the rules of the Indian Department, are perhaps of more interest to lawyers than the courts of the primitive tribes. The modern courts were first proposed by General William S. Harney, in 1856 and were provided for in the treaty made at Port Pierre in March of that year, which unfortunately was not ratified by the senate.[9] It can scarcely be doubted that had Harney's scheme for making the Sioux responsible to the government for the conduct of their own people been adopted, much bloodshed and treasure would have been saved. [9] This treaty was not ratified because of the large expenditure which would be demanded to uniform and subsist the police force. Afterwards we spent in a single year for the subjugation of the Sioux sufficient money to subsist the police for a century. It was not until after the Red Cloud war ended in 1868 that the courts for Indian offenses, equipped by the Indian themselves, began to be tried at some of the agencies in a small way. The Sissetons and Santees were first to give them a trial and eventually they were supplied to all the Reservations except the Rosebud, which, for some reason of which I have been unable to secure information, has never had them. The following general rules governing courts of Indian Offenses pursuant to the statute have been adopted by the Indian Department:[10] [10] Rules and Regulations of the Indian Office governing Indian Reservations. Letter of Hon. John R. Brennan, agent at Pine Ridge, April, 1908. First: When authorized by the Department there shall be established at each agency a tribunal consisting ordinarily of three Indians, to be known as "the Court of Indian Offenses," and the members of said court shall each be styled "judge of the Court of Indian Offenses." Agents may select from among the members of the tribe persons of intelligence and good moral character and integrity and recommend them to the Indian Office for appointment as judges; provided, however, that no person shall be eligible to such an appointment who is a polygamist. Second: The court of Indian Offenses shall hold at least two regular sessions in each and every month, the time and place for holding said sessions to be agreed upon by the judges, or a majority of them, and approved by the agent; and special sessions of the court may be held when requested by three reputable members of the tribe and approved by the agent. Third: The court shall hear and pass judgment upon all such questions as may be presented to it for consideration by the agent, or by his approval, and shall have original jurisdiction over all "Indian offenses" designated as such by rules 4, 5, 6, 7 and 8 of these rules. The judgment of the court may be by two judges; and that the several orders of the court may be carried into full effect, the agent is hereby authorized and empowered to compel the attendance of witnesses at any session of the court, and to enforce, with the aid of the police, if necessary, all orders that may be passed by the court or a majority thereof; but all orders, decrees, or judgments of the court shall be subject to approval or disapproval by the agent, and an appeal to and final revision by the Indian Office; _Provided_, that when an appeal is taken to the Indian Office, the appellant shall furnish security satisfactory to the court, and approved by the agent, for good and peaceful behavior pending final decision. Fourth: The "sun dance," and all other similar dances and so-called religious ceremonies, shall be considered "Indian offenses" and any Indian found guilty of being a participant in one or more of these offenses shall, for the first offense committed, be punished by withholding from him his rations for a period not exceeding ten days; and if found guilty of any subsequent offense under this rule, shall be punished by withholding his rations for a period of not less than fifteen days nor more than thirty days, or by incarceration in the agency prison for a period not exceeding thirty days. Fifth: Any plural marriage hereafter contracted or entered into by any member of an Indian tribe under the supervision of a United States Indian Agent shall be considered an "Indian offense" cognizable by the court of Indian offenses; and upon trial and conviction thereof by said court the offender shall pay a fine of not less than twenty dollars, or work at hard labor for a period of twenty days, or both, at the discretion of the court, the proceeds thereof to be devoted to the benefit of the tribe to which the offender may at the time belong; and so long as the Indian shall continue in this unlawful relation he shall forfeit all right to receive rations from the government. And whenever it shall be proven to the satisfaction of the court that any member of the tribe fails, without proper cause, to support his wife and children, no rations shall be issued to him until such time as satisfactory assurance is given to the court, approved by the agent, that the offender will provide his family to the best of his ability. Sixth: The usual practices of so-called "medicine men" shall be considered an "Indian offense" cognizable by the court of Indian offenses, and whenever it shall be proven to the satisfaction of the court that the influence of a so-called "medicine man" operates as a hindrance to civilization of a tribe, or that said "medicine man" resorts to any artifice or device to keep the Indians under his influence, or shall adopt any means to prevent the attendance of children at the agency schools, or shall use any of the arts of the conjurer to prevent the Indians from abandoning their heathenish rites and customs, he shall be adjudged guilty of an "Indian offense," and upon conviction of any one or more of these specified practices, or any other, in the opinion of the court, of an equally anti-progressive nature shall be confined in the agency guardhouse for a term not less than ten days, or until such time as he shall produce evidence satisfactory to the court, and approved by the agent, that he will forever abandon all practices styled "Indian offenses" under this rule. Seventh: Any Indian who shall wilfully destroy, or with intent to steal or destroy, shall take and carry away any property of any value or description, being the property free from tribal interference, of any other Indian or Indians, shall, without reference to the value thereof, be deemed guilty of an "Indian offense," and, upon trial and conviction thereof, by the court of "Indian offenses," shall be compelled to return the stolen property to the proper owner, or, in case the property shall have been lost or destroyed, the estimated full value thereof, and in any event the party or parties so found guilty shall be confined in the agency guardhouse for a term not exceeding thirty days; and it shall not be considered a sufficient or satisfactory answer to any of the offenses set forth in this rule that the party charged was at the time a "mourner," and thereby justified in taking or destroying the property in accordance with the customs or rites of the tribe. Eighth: Any Indian or mixed blood who shall pay or offer to pay any money or other valuable consideration to the friends or relatives of any Indian girl or woman, for the purpose of living or cohabiting with said girl or woman, shall be deemed guilty of an "Indian offense," and upon conviction thereof shall forfeit all right to government rations for a period at the discretion of the agent, or be imprisoned in the agency guardhouse for a period not exceeding sixty days; and any Indian or mixed blood who shall receive or offer to receive any consideration for the purposes hereinbefore specified shall be punished in a similar manner as provided for the party paying or offering to pay the said consideration; and if any white man shall be found guilty of any of the offenses herein mentioned he shall be immediately removed from the reservation and not allowed to return thereto. Ninth: In addition to the "offenses" hereinbefore enumerated, the court of "Indian offenses" shall also have jurisdiction (subject to the provisions of rule 3) of misdemeanors committed by Indians belonging to the reservation, and of civil suits where Indians are parties thereto; and any Indian who shall be found intoxicated, or who shall sell, exchange, give, barter or dispose of any spirituous, vinous, or fermented liquors to any other Indian, or who shall introduce or attempt to introduce under any pretense whatever any spirituous, vinous, or fermented liquors on the reservation, shall be punishable by imprisonment for not less than thirty days nor more than ninety days or by withholding of government rations, therefrom, at the discretion of the court and approval of the agent. The civil jurisdiction of such court shall be the same as that of a justice of the peace in the State or Territory where such court is located, and the practice in such civil cases shall conform as nearly as practicable to the rules governing the practice of justices of the peace in such State or Territory, and it shall also be the duty of the court to instruct, advise and inform either or both parties to any suit in regard to the requirements of these rules. Under these rules the courts are organized and hold their sittings at such times and places as will be most convenient for the people, as for illustration, upon the Cheyenne River Reservation one judge sits at each substation at each semi-monthly ration issue, and if for any reason a party is dissatisfied with his decision, he has a right to appeal his case to the entire bench which sits for the purpose at the agency at regular intervals[11]. [11] Letter of Prof. C. W. Rastall, Superintendent at Cheyenne River, April, 1908. Persons convicted of such offenses as come within the jurisdiction of the court are committed to the guard-house for a stated period, and are required to work in keeping up the grounds about the agency or substation, as the case may be. They make very little trouble and rarely does one attempt to escape, though they work without guard.[12] [12] Letter of T. W. Lane, agent at Crow Creek, April, 1908. The Indian people generally have great respect for the judges of their courts and the latter show much wisdom and discretion in their decisions, though they do not always place the white man's estimate upon the relative enormity of offenses. I was present at a session of the Cheyenne river court in 1892, when two parties accused with crime were brought before it. One was charged with stealing a picket pin of the value of thirteen cents and he got thirty days in the guard-house, while the other, convicted of a rape, got ten days. Formerly the judges were not compensated, but now they receive a nominal salary,--from five to ten dollars per month,--and their board while sitting. It is regarded as a great distinction to be chosen to the bench and the courts administer the law, as they understand it, with dignity and firmness.[13] There are no lawyers upon the reservations but a friend may appear for a party to an action, or one accused of an offense and the trials are conducted with much formality and the pleas are frequently shrewd and eloquent. Every Indian is an orator by nature, and the courts afford the best modern opportunities to display their gifts. [13] Letter of Major Brennan. The police force upon all of the reservations is composed of the natives and they are highly efficient and render great assistance to the courts in preserving the peace and in bringing offenders to justice. It is a point of honor for a Sioux policeman to do his whole duty regardless of obstacle and neither kin nor friend can expect leniency if he stands in the way of duty, and this is equally true of the courts. It is not an infrequent thing for the judge to try his son or near relative and in such cases the accused is sure to get the limit of the law.[14] [14] Interview with Solomon Two Stars, hereditary chief of Sissetons, August, 1901. Monthly South Dakotan, December, 1901. Without exception the Indian authorities commend the native courts and policemen for fidelity and effective administration of justice. Footnotes [1] Most writers upon Indian life have noted the existence of these courts. Since undertaking this paper, I have consulted Hump, One Bull, Wakutemani and Simon Kirk, all intelligent Sioux and, save as otherwise noted, they are my authorities for the statements herein contained. [2] Miss Mary C. Collins, for thirty-three years missionary among the Tetons, especially the Hunkpapa and Blackfoot bands. [3] Letter of Dr. Thomas L. Riggs, to writer, June, 1903. [4] Interview with Joseph LaFramboise of Veblen, a Sisseton, at Sioux Falls, in October, 1900. [5] Flandreau's Minnesota. [6] Journal of Lewis and Clark September 26th and 27th, 1804. [7] Related by Miss Mary C. Collins, April, 1908. [8] Minnesota Historical Collections, Vol. III. [9] This treaty was not ratified because of the large expenditure which would be demanded to uniform and subsist the police force. Afterwards we spent in a single year for the subjugation of the Sioux sufficient money to subsist the police for a century. [10] Rules and Regulations of the Indian Office governing Indian Reservations. Letter of Hon. John R. Brennan, agent at Pine Ridge, April, 1908. [11] Letter of Prof. C. W. Rastall, Superintendent at Cheyenne River, April, 1908. [12] Letter of T. W. Lane, agent at Crow Creek, April, 1908. [13] Letter of Major Brennan. [14] Interview with Solomon Two Stars, hereditary chief of Sissetons, August, 1901. Monthly South Dakotan, December, 1901. 
17041	----	+------------------------------------------------------+ | Transcriber's Note: Some obvious typographical | | errors have been corrected in this text. For a list | | please see the bottom of the document. The one Greek | | word is transliterated and marked with +'s. | +------------------------------------------------------+ THE MAN IN COURT by FREDERIC DEWITT WELLS Justice, Municipal Court of New York City G.P. Putnam's Sons New York and London The Knickerbocker Press 1917 Copyright, 1917 by Frederic Dewitt Wells The Knickerbocker Press, New York To MY FRIEND CHARLES E. GOSTENHOFER OF THE NEW YORK BAR IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS THIS BOOK IS DEDICATED INTRODUCTION The author has tried to show the point of view of the ordinary man in a law court, as the various proceedings of a trial take shape before him. To the initiated, the whole book may seem too obvious; but it has not been written for them, but for those to whom these proceedings are unfamiliar. There are many who have a certain curiosity about the courts, and at the same time a real respect for justice, mingled with amusement at the panoplies and antiquated forms of legal procedure. F. DEW. W. NEW YORK, _January, 1917_. CONTENTS PAGE INTRODUCTION iii I.--A NIGHT COURT 3 II.--THE CIVIL COURT 21 III.--THE JUDGE 39 IV.--THE ANXIOUS JURY 57 V.--THE STRENUOUS LAWYER 75 VI.--THE WORRIED CLIENT 93 VII.--PROGRAMS AND PLEADINGS 111 VIII.--PICKING THE JURY 129 IX.--OPENING THE CASE 149 X.--THE CONFUSED WITNESS 165 XI.--THOSE TECHNICAL OBJECTIONS 183 XII.--THE MOVEMENTS IN COURT 201 XIII.--ELOCUTION 219 XIV.--THE HEAVY CHARGE 235 XV.--THE TRUE VERDICT 251 XVI.--LOOKING BACKWARD 265 I A Night Court In the Night Court the drama is vital and throbbing. As the saddest object to contemplate is a play where the essentials are wrong, so in this court the fundamentals of the law are the cause of making it an uncomfortable and pathetic spectacle. The women who are brought before the Night Court are not heroines, but the criminal law does not seem better than they. It makes little attempt to mitigate any of the wretchedness that it judges; in many cases it moves only to inflict an additional burden of suffering. The result is tragedy. The magistrate sits high, between standards of brass lamps. His black gown, the metal buttons and gleaming shields of the waiting police officers, the busy court officials behind the long desks on either hand tell of the majesty of the law. In front of the desk but at a lower level is a space of ten or twelve feet running across the court-room in which are patrolmen, plain-clothes men, detectives, women prisoners, probation officers, reporters, witnesses, investigators, and lawyers. Beyond in the court-room a large crowd is on the benches. There are witnesses, brothers and sisters, friends of the prisoners waiting to see whether they go out through the street entrance or back through the strong barred gate seen through the door on the left. Also there are the "sharks" waiting to follow out the released prisoners, to prey upon them as the circumstances may favor; and a number of curiosity seekers watching intently. For them it can be nothing but a morbid dumb show, for they are so far from the bench that not a word of the proceedings could be heard. Only once in a while the shrieks and imprecations of a struggling hysterical woman as she is hurried out of court can enliven the scene. Fortified with a letter of introduction to the judge and a disposition that will not be too easily shocked at seeing conditions of life as they actually exist, the spectator may find his way past the policeman at the gate in the rail. It clicks behind him ominously and he wonders whether he will have difficulty in getting out. Finally through clerks and officials who become more kindly as they learn he is a friend of the judge, he is seated in a chair drawn up beside the bench. The magistrate is a hearty round-faced man who seems almost human in spite of his gown and the dignity of his surroundings. The court looks different from this point of view and he may easily watch the judicial enforcement of the law supreme. The organization of these courts is simple. There are not many rules or technicalities. The judges are patient, hard working, understanding, and efficient. The trouble is with the laws they are called upon to administer: Laws which are as absurd, as farcical, and as impracticable as the plot of the lightest musical comedy. At first the visitor can hardly understand what is going on. A pale-faced man is in the witness chair, on his left a bedraggled little woman is standing before and below the judge, her eyes just level with the top of the desk. Clerks are coming with papers to be signed: "commitments," "adjournments," "bail bonds"; others are trying to engage his attention. In the meanwhile the case proceeds. "I inform you," says the judge to the woman, "of your legal rights, you may retain counsel if you desire to do so and your case will be adjourned so that you may advise with him and secure witnesses, or you may now proceed to trial. Which will you do?" She murmurs something. She is pale-faced with sullen eyes, drooping mouth, an over-hanging lip. A sad red feather droops in her hat. "Proceed," says the judge; and to the policeman who is called as a witness, "You swear to tell the truth, the whole truth mm-mm-mm--you are a plain-clothes man attached to the 16th Precinct detailed by the central office, what about this woman?" "At the corner of Fifteenth Street and Irving Place," says the witness, "between the hours of 10:05 and 10:15 this evening I watched this woman stop and speak to three different men. I know her, she has been here before your Honor." "What do you say?" the judge asks the woman. She is silent. "What do you work at?" "Housework, your Honor." "Always housework; it is surprising how many houseworkers come before me." She smiles a sickly smile. "Take her record. Next case," says the judge. Outside it is a cold sleeting night in early March. "Witnesses in case of Nellie Farrel," calls the clerk. Nellie Farrel stands before the desk beside a policeman; she is tall with fair waving hair. She must have been pretty once; even now there is a delicate line of throat and chin. But her eyes are hard and on her cheeks there are traces of paint that has been hastily rubbed off. She looks thirty; she is probably not more than twenty. A callow youth, who seems preternaturally keen, swears that on Thirteenth Street between Fifth Avenue and University Place the woman stopped and spoke to him; and he tells his story as though it were learned by rote. "Do you know the officer who made the arrest?" the judge asks him. "I do." A suspicion arises that there may be an interest between the witness and the policeman. A dark-haired, smooth-faced woman who is standing by the prisoner says: "Your Honor, she's my sister. I'm a respectable woman, my husband is a driver. I have three children. It's disgrace enough to have the likes of her in the family. If you'll give her another chance I'll take her home with me; my husband is here and he's willing." The accused looks down piteously. "Discharged on probation," says the judge, and the family go out. "That's the third time that's happened to her," whispers a clerk. "Every time the sister comes up like a good one." A horrible old woman with straggling gray hair, shrivelled neck, and claw-like hands grasps a black shawl about her flat chest. "Mary," says the judge, "thirty days on the island for you." "Oh, your Honor, your Honor, not the workhouse. Oh, God, not the workhouse," and she is borne out screaming and fighting and invoking Christ to her aid. The judge turns and says in explanation, "an old case, an example of what they all may come to." A dark-haired little French woman is brought in with crimson lips, bold black eyes, and expressive hands. A detective testifies that he went with her into a tenement house on Seventeenth Street west of Sixth Avenue. Charge: Violation of the Tenement House Law. "Qu'importe," says the woman. "I go in ze street. I am arrested. I stay in ze house. I am arrested. I take ze room. I am arrested. Chantage--Blackmail. C'est pour rire." Who are these women who are brought in a crowd together? One of them older than the rest is a foreigner plainly dressed in black silk with a gold chain. She does not seem particularly evil, but rather respectable. The others are in long cloaks or waterproofs hastily donned and through which are glimpses of pink stockings. They have hair of that disagreeable butter color which speaks of peroxide. There has been a raid on a west-side street of a house of ill repute. Some testimony is given and the older woman, the "Madam" is held in bail for the action of the Grand Jury while the rest are held for further evidence. The judge tells us there will probably not be enough testimony and they will be released in the morning. But unless bail is found they will spend the night in cells. A nervous, excited woman comes in--two policemen are with her. She has been arrested for disorderly conduct on Sixth Avenue near Thirty-first Street. She has been fighting with a man who has also been arrested and taken to the men's Night Court. Hers is a hard, tough face of the lowest type. "Why should you try to scratch the man's face? What did he do?" the judge asks. "Is he your husband?" "My husband, your Honor? Yes, I guess you can call Al that. We lives up town and when I went out he says to me, 'Hustle, kid, you got to hustle, the rent's due and if you don't get the money I'll break your neck.' The slob won't work. Well, a night like this you couldn't make a cent and I only had half a dollar and I wanted to get a bite to eat. I hadn't had a thing since four o'clock, and then I met Al going down Sixt' Avenue an' he tries to swipe me fifty cents off me and I was that wild I wanted to tear him. I'm sorry; I guess it was my fault. I don't want to see him jugged, so please let me off, your Honor, and I won't make no trouble." "Take her record," said the judge, "and hold her as a witness against the man." A string of women are brought in for sentence who have been having finger prints taken in the adjoining room. The judge proceeds to impose sentences according to the previous records which are shown. Some of the women are those who have passed in front before. The little bedraggled woman with the red feather has been arrested seven times in sixteen months. Another has spent eight weeks in the workhouse out of a period of seven months; another has been sent already to the Bedford Reformatory; another has been twice to houses of reform. Before the judge gives his sentence he refers the prisoners to the probation officer, who talks with them in a motherly way. After talking with the little prisoner she addresses the judge. "She says its no use, your Honor, she does not want to reform--it will not be worth while to put her on probation." "Committed to the Mary Magdalene Home," says the judge, and the name brings a startling surmise as to what He of Galilee would have said. The foregoing is only a typical session of the court. Night after night, from eight o'clock until one in the morning, the scene is repeated. The moral effect and its reaction upon those who conduct the proceedings--the judges, officers, and the police, cannot but be deplorable; the evil done to those forcibly brought there could not be over-estimated. Substantially the law is that the women may not loiter in the streets nor solicit in the streets, or in any building open to the public. They may live neither in a tenement house nor in a disreputable house. The law makes it a crime for the women to walk abroad or stay at home. Their existence is not a crime, but only in an indirect way the law makes them outlaws. Anyone wishing to prosecute or persecute finds it easy to do so. The worst enemies of these unhappy women are to be found, curiously enough, among both the best and the most evil people in the community. The unspeakably depraved are the men who, either as procurers, blackmailers, or the miserable men who live on a share of their earnings. The excellent people who oppose any remedial legislation which might relieve the situation, seem equally responsible for the present condition, however well-intentioned they may be. One effect of the present system is the practically unchecked transmission of disease. A reform in this direction would not solve the basic problem, for there would remain full opportunities of blackmail and extortion, but it might still remove a menace to the health of the community which is probably more serious than tuberculosis. A statute to this end was enacted in New York State a few years ago: an act for the medical examination of the women. It was declared unconstitutional because of one word. It should have read, "the judge may"; instead, it read, "the judge _must_." Far more difficult to deal with is the opposition of the people who believe that the moral sense of the community would be jeopardized by any laws suggesting that prostitution is unavoidable. In ironic contrast to the failure of legislation to prevent the spread of disease, is the success of an ill-advised statute making adultery a crime. Under it, a married man having relations with a prostitute and the woman herself, are subject to criminal prosecution. It affords a fresh field for extortion, how largely used it is impossible to say. The history of the passage of the adultery act presents one of the most ghastly jokes ever perpetrated by a State Legislature. For years such a bill had been introduced in the New York Legislature and had been passed by either the Assembly or the Senate without comment and then quietly killed in the other house. It was obvious that such a law could not be properly enforced and its blackmailing possibilities were manifest, yet no one, not even Governor Hughes, who was then in office, could be openly opposed to its passage. The tender morality of the community would not allow a public discussion. It was said, at the time, that when the representative of a society for the suppression of vice called on one member asking him to introduce the bill, he declined to do so on the ground that he represented a Fifth Avenue District and it would make him too unpopular among his constituents. When the bill had been introduced by another member and came up for final passage, it was decided, since Governor Hughes had vetoed many political bills of members of both houses, to put him in a dilemma. If the bill were presented to him he would have to sign an absurd statute or declare himself the friend of unrighteousness. He signed it and the bill became a law. Since its enactment there have been ridiculously few convictions under it. The successive carelessness, timidity, and levity of the Legislature is depressing, but there is an encouraging increase of interest on the part of the public. The average man is not merely interested in the problem; he appears to take the sensible view that the "social evil" is not so much a moral question as a condition, a problem to be met like other problems. We have become less concerned with the private morals of our fellow citizens than with their health, safety, and the prevention of unnecessary suffering. We perceive that the courts are only our agents and are not directly responsible for what they do; they are following instructions given by our ancestors and which we have neglected to abolish or modify. The visitor leaves the Night Court with a strange sense of having his social values overthrown. He feels almost sympathetic with the women whom he has seen. They may be offenders against morals and the social order, but they are human beings over whom the waters of civilization seem to sweep with relentless flood. The frightful waste of life and energy seems inexcusable. And it is as though some mill dam had burst and was flowing in a terrific torrent down a river bed along which a few are drawn white and drowned. The ordinary man knows that the women who go under are such a small proportion of those who escape, that it seems either a ghastly joke or a terrible tragedy. The whole paraphernalia of the court-room merely accents the contrast between those who are caught and those who go free. But all criminal courts are always unpleasant. And humanity if seen only in the setting of a criminal trial would be a discouraging object. Turning to the more civil court, we find an almost equal unfitness between the courts and modern conditions. II THE CIVIL COURT In a twenty-four-story office building, on a smooth gliding elevator, up seventeen stories, down a low-ceilinged corridor, past fireproof doors labeled: "Clerk's Office," "Judge's Chambers," "Witness Room," we find the typical modern court. The old idea of a very pseudo-classic courthouse on a placid village green to which the neighboring county squires have ridden, and where the jail is in the cellar and the town recorder in the attic, is fast disappearing. The old courthouse in the city, of red sandstone with battlements and turrets, minarets, and a clock tower, seems out of date. The white marble palaces of the higher courts wherein broad stairways, paneled mahogany, stained glass, and soft noiseless carpets giving an air of repose and refined culture, are not altogether consistent with the modern spirit. The man on the street does not understand whether the marble statues on the roof are symbols of justice or late presidents of the United States. The usual courthouse of twenty years ago was a mixture of armory and Gothic church. In the larger courthouses where there are many terms or parts in one building, there is an air of confusion. Rotundas, corridors, stairways, and elevators are constantly filled with a moving crowd of lawyers waiting for their cases to be tried, clients who have had appointments, witnesses who have been subpoenaed to come to court and when they get there find it is not one court, but thirty. The latter are found wandering dazedly about asking anyone who will stop to listen if they know in which part the case of Martin _vs._ Martin is being tried. Lunch counters, telephone booths, and a feeling of awe are in the building. What that terror of a court of law comes from is difficult to analyze. There is the impressive majesty of the law; always about a court is the inspiring sense of something more than human. Even an empty court-room is not as other rooms. Like an empty theater there remains an atmosphere of glamour, of mystery, and yet equally true there remains a substantial, strong odor of crowds. It is said that every theater retains its own peculiar smell. The scientific investigation of the psychology of odors is too subtle to be understandable. The question of analyzing the exudations of a nervous crowd seems interesting, but the remembrance of an anxious humanity is always present. In former times the attendant placed a small bunch of herbs and aromatic flowers on the judge's desk, and glasses of the dried bouquets remained in a row for long periods. Hygienically considered the courts are unsanitary. If the windows are opened the cold air is apt to draw directly on the heads of the jury and the stenographer. In summer the noise of city streets, the cars, the elevated, the cries of children, the hand-organs, the flies, are not at all conformable to the supposed dignity of the court. It is well-known that the crowded and unhealthy conditions of the courts are conducive to disease as well as discomfort to the inhabitants. The connotations of the name court are generally impressive. There is the suggestion of jail, of punishment, of something final, of absolute judgment. Also it suggests the courtyard of a tenement house, an alleyway or something shut in and confined. The philology is from the old French cort or curt. It is curious that it means something narrow. There are the suggestions of the lists, of heralds, of trumpets, of banners and knights in armor, of prancing steeds, of fair ladies watching, of joust, tournaments, and trials by battle. There is something royal about the word. We think of pomp and magnificence and purple robes, of kings on their thrones, with courtiers standing about. The conception of Diety to the simple man who visualizes, immediately takes on the form of a court. We speak of the Courts of Heaven. The pictures of Godhead represent him as sitting in the center on his raised throne with the surrounding tiers of attendant angels. The modern court-room is only an adapted continuation of a medieval idea. On the raised dais under an unsanitary and dusty canopy of green plush sits the judge; instead of a sceptre he holds the gavel. This gavel, by the way, is falling more and more into disuse. As a symbol of authority, a little wooden hammer has become a trifle ludicrous. If a judge were to shake it too violently there might be a fear on the part of those watching that he was about to throw it at the spectators or at one of the arguing lawyers. The judge sits at an imposing high-railed desk with standard lights at either corner. The top of the desk is usually above the level of the eyes even of the lawyer standing. This is an arrangement which is conventional and convenient; it would not be consistent with the majesty of the law if the judge should be discovered writing a personal note or taking a glance at the stock market reports in the evening paper. The judge's chair is ordinarily a revolving one with a dip backward. Stationary chairs are trying, for those who have to remain quiet for so many hours at a time, and the swinging back and forth and twisting about gives a little relaxation. In front of the judge's dais are the counselors' or lawyers' tables, and at one side in front and below usually another table for reporters. It is somewhat like the arrangement in baronial halls where there was an upper and lower table and some sat below the salt and others above. On one side, opposite, but not as high, is the jury-box. This is a pen with twelve seats within a high-sided inclosure like an old-fashioned pew. What the object of the inclosure may be is uncertain, unless it is a relic of a time when it was necessary to imprison the jurors. Jury duty has doubtless always been arduous and disagreeable, and in earlier days men were probably as anxious to escape serving on the jury as they are to-day. In one of the courts, which was not supposed to be for jury trials, twelve men once sat on a case without any jury-box in plain chairs and at the side of the room. They were extremely uncomfortable themselves; their legs were exposed and they seemed shockingly unconventional. Between the judge's desk and the jury-box is the witness chair, an ordinary chair placed not quite so high, but beside the judge's and where he can look down on the witness. The position of the witness chair may be accountable for the feeling of protecting the witness that exists in the minds of the judge and jury. There is a natural sympathy for him, as though he were being attacked by the examining counsel. The witness in former times stood in a little enclosed box and in Italy, where court scenes are more intense, the prisoners to this day in criminal trials testify from behind iron bars. Below the witness chair is the stenographer. The former idea of the aged scrivener or court clerk with white hair and green eye shade has vanished. The modern stenographer, who keeps the record of a trial, is probably an energetic young man, who has passed high on the civil service list, knows something about law, is studying for a better position, or is connected with a very profitable stenographers' business on the outside. The court proper is divided from the rest of the room by an iron or wooden rail guarded by a jealous court attendant, who is always a strong advocate of court etiquette and very properly maintains the dignity of the court. He is in uniform with a shield or badge of office conspicuously displayed and being taken from the civil service list whereon war veterans and retired firemen or policemen have a preference, is generally of a certain age. Naturally, being old and having to stand so much, he has tender feet, and with the customary effects of all secure and salaried positions, acquires both a slow and shuffling gait and the ordinary characteristics of his class. He is subject to many petty annoyances, foolish questions, repeated inquiries, people talking or arguing, little disorders pursue him on every hand. The object of the attendant in the court is to maintain order and preserve dignity. They are almost avid in their pursuit of the ignoramus who comes in with his hat on his head or covers himself on going out before he reaches the door. Their salaries are not large but their duties are not arduous. They may seem solicitous to the judge and sometimes overbearing to the litigants and lawyers, but they are only in the position of the supes or ushers in the theater. Yet they are understanding and wise as regards the human drama constantly played before them. The lighting of the court-room is unusually dramatic. There are no foot-lights, but the best theory of stage lighting is that there should be none. One of the most effective scenes in the modern theater is the court setting in Galsworthy's _Justice_. The lighting is indirect and the spots of red and green lights at the judge's desk, the corners of the jury-box and the shaded ones at the clerk's elbow, give a remarkable impression of mysterious terror. Whatever may be the cause, there exists a marked resentment against the courts. Not only is there a complaint as to the cloying technicalities of procedure, the long and fatal delays of the law, the absurd forms and mannerisms of the trial, but underneath them all a fundamental distrust of justice itself. The complaint is heard of the inequality of justice. That there is a law for the poor man and another law for the rich. The stage gives expression to the feeling, and modern literature voices it. The high-priced millionaire escapes and the low-browed pickpocket goes to prison. Cases are cited where the rich woman returning from a debauch of European shopping with a few thousand dollars' worth of pearls sewed in the lining of her winter bonnet is only fined, whereas the little milliner from the lower end of the city is sent to jail for trying to smuggle in a new coat. The impressario of art collections is caught at a gigantic scheme for defrauding the government of thousands of dollars on imported pictures. He hobbles into court and on the ground of ill health escapes a prison sentence and is merely fined, while the little Italian fruit vender is summarily jailed for bringing in a few dried mushrooms. The high financier who wrecks a railroad or a bank serves a light prison term and emerges like a phoenix to buy new steamboat lines or float new enterprises. But the peddler on the East Side who sells a few dollars' worth of stale fish is punished to the limit of the law. The facts exist and to the popular mind seem unexplainable. There undoubtedly must be a reason, and what it is, is not hard to find. It seems one of the mysteries of judging and of justice, as though there were an unwritten law in the back of the human mind in favor of property rights. There is an explanation and not an inequality of justice. The facts are not as they are popularly stated or supposed to be. The public gets only a portion of the picture, and from an enormous group of cases, a few contrasted ones are picked out for the sake of the dramatic effect. The limelight of public notice is upon them and the softer lights and shadows are omitted. The public does not see the gradation. On the one hand we see the rich woman, the millionaire art dealer, the financial pirate being leniently dealt with, on the other hand we see the little milliner, the Italian fruit vender, and the peddler receiving harsh sentences. The sharp contrasts make good newspaper stories that are appealing and touching. What the public does not see is the whole picture of all the cases of alleged inequality that come into court. These are only six out of seven hundred cases, chosen because they are melodramatic. There were nearly seven hundred other offenders that were let off with suspended sentences or light fines, of whom nothing is heard, but these three are conspicuous on account of their wealth, and the cases of the milliner, the mushroom vender, and the peddler are reported for the same reason--of being conspicuous. They are unusual on account of the sentences. The harshness of their sentences is remarkable. There may be special reasons. The six hundred and ninety-odd who are punished lightly in the same way as the rich man are not noticed. As a matter of actual experience, the rich man has a harder time in court than the poor man. The inequality of justice, if there be any, is rather against him. Because he is rich and notorious the public prosecutor cannot let him off. If, for example, a poor man who is undoubtedly insane, commits a murder he is not tried, but is sent to an asylum for the insane. If, after several years, he recovers and is released, nothing is said about it; the public does not know. But let it be a rich lunatic and the public prosecutor is bound to bring him to trial. Public attention demands it. He may know him to be insane, but he must still prosecute him. The jury declare him insane. After years he is released from the asylum, the public thinks it a miscarriage of justice, forgetting in the meanwhile the inconspicuous poor man who unnoticed has gone through the same experience, and been released years ago. The delays of the law are partly due to the system of courts and partly to the dullness of court procedure. The inefficiency of the system of courts and judicial procedure is shown in the practical workings of the civil courts of New York City. The antiquated organization of all the courts is like a patchwork quilt where each additional one has been added or increased as New York has grown from a village below the Indian stockade at Wall Street to its present size. So that there exist within the city limits now seven different kinds of civil courts and five kinds of criminal courts, in nearly each of which there is a separate set of rules, different customs, and distinct methods of procedure, and of them all the most technical and the most complicated are often those where they should be the most simple and easy of understanding. Wherever the court may be the surroundings are substantially the same. The scene is laid and the carpenters have left. The spectators have found their places. The stage is empty however, there is a sudden bustle and shifting of feet, a rumor has gone abroad that something is about to happen. The court attendants take their places. One of them straightens up and with a commanding voice cries out: "Gentlemen, please rise. Hear ye, hear ye, all persons having business draw near and ye shall be heard." Enter his Honor, the Judge. III THE JUDGE With a rustle of his gown and a bow to the court-room the judge takes his seat on the bench. The trivial pleasures of being heralded and having the spectators rise when he enters have lost their charm, but he would feel uncomfortable without them. The gray-haired clerk hands him the list of the cases for the day. The anxious court attendant asks if he shall open a window. The judge sniffs audibly and orders the steam heat to be turned off. The court attendant does so and brings his Honor a glass of water. When the judge sits down in the revolving chair he is on the bench and the court is in session. The fact of the matter is the judge is a pretty decent sort of person. The trouble is that the surroundings are all against him. In the first place his whole job is one that makes him live up to a part. For five or six hours a day he has to sit still in a stuffy court-room on a leather chair under a silly canopy of wood or plush and pretend that he is the whole thing, that he knows it all, and that whatever he decides is absolutely right. Let him waiver or be uncertain in his decisions and woe is it to him. No one thinks much of a judge who does not know his business or at least does not pretend to know it. How anyone who has been long on the bench can retain any sense of proportion is remarkable. Whatever he says and does in court is final and apparently approved. If his decisions are reversed they do not affect him seriously; he has tried so many cases that were not appealed, and the greater proportion of those that have been are affirmed. The reversal comes a long time after and does not hurt his feelings. In any event, he was trying to do the best he could and human nature may be fallible, although, as far as he can see, the whole world of the little court-room where he sits has conspired to show him that he is divinely endowed. His position is not exactly one of bluff, but he is the central figure of the stage; like the actor's profession the judge's job makes him an egotist. Take for example the essential elements of his knowledge of the law. He is the _Jus Dicens_, the one saying the law, the name of judge being derived from the two Latin words. He is supposed to know the law, at least he ought to know court procedure, and the law of his State thereon by heart. In New York State, for example, the Code of Civil Procedure is five hundred thousand words long. He is bound to take judicial notice without being told of all the statutes of the State Legislature, which are being passed at the rate of six hundred a year. He is also supposed to know the laws of the United States passed at Washington, and to be thoroughly familiar with the latest decisions of the Supreme Courts of the United States, and those for the past 125 years. He must understand and look as though he knew beforehand any decision of the courts of his own State cited, which are conveniently and neatly printed in 219 New York Court of Appeals Reports, 173 volumes of the Appellate Division Reports, and 96 volumes of the Miscellaneous Reports, to say nothing of the opinions and decisions of other courts that are not printed at all. His knowledge of the law is a fearful and wonderful thing; he must have an oceanic mind. It is told that one of the leaders of the bar had formerly a young man in his office who with advancing years and reputation was elected to the bench. Before the first of January when he was to take his oath of office, the old employer and friend sent for him. When he arrived he was greeted as follows: "Joe, I've sent for you because I wanted to see you before you become a judge. I am very fond of you and I wanted to see you once again as you were, because after you go on the bench you are bound to become a stuffed shirt, for they all do." That so many escape is one of the wonders of human nature. That they retain their humanity is due to a disposition of Providence to temper the wind to the shorn lamb. The position necessarily takes away all initiative. In politics the judge is recognized as being a "dead one." After a few years on the bench only the exceptional man can fling off the shackles of his profession and get back into real life. He ceases from fighting, he is not energetic. As a good judge he must be firm but restrained. He may not be too emphatic. Every inducement is toward making him lazy, fat, and easy. Before him everyone bows and waits for him to speak. He is the absolute boss within the four walls of his court-room. The only restraining influences are the reactions from the lawyers and spectators who are before him. Their opinions can not be openly expressed; they are reserved until afterwards. If a judge really has any idea of the high esteem in which he is held, let him find out what is being said of him after the case is over, as the clients and lawyers are going down in the elevator, or what the rear benches have been whispering. He probably has a suspicion of this, but no matter how tolerant he desires to be, there is the temptation to show that his authority is supreme; that when the lawyers begin arguing a point on which he has formed an opinion to cut them off; when the witness is trembling on the stand as to whether the accident happened on a Thursday or a Friday, to ask her, "Don't you know that Thursday was on the 16th of April last year," which of course she does not. There is the temptation to feel that he can never be wrong; that a question may be reargued, but that he is not going to change his opinion. The possibility is that the judge is a mild sort of bully. But it is not always safe to go on the assumption that being a bully he is also a coward. He may be, but on a trial the odds are too much in his favor. If the lawyer wants to fight the judge, he has a great deal at stake; he may awaken so strong a prejudice that the judge knowing the rules of the game better than he does, may beat him on a technicality. On the other hand it is a mistake for the lawyer to be subservient and too cringing. Being a bully, the judge is apt to take advantage of his position. The best policy is to appeal to his human instincts as a man. He may be decent in spite of critics of the courts to the contrary notwithstanding. If he is kindly treated he will respond. In New York judges were appointed until about 1846, when there was a popular upheaval and the constitution was changed, and they have ever since been elective, with the exception of some of the minor courts. The advantages of the two methods is an open question. The arguments in favor of appointment are that it makes for an independent judiciary and that it secures better men for the bench, whereas the other does not, because the highest class lawyer will not go through the turmoil and supposed degradation of a political campaign. These arguments are not sound. The argument for the election of judges is that it keeps the bench more humane, modern, and in touch with the will of the people. The one is the aristocratic idea, the other the democratic. A court as at present constituted is an autocratic institution but the judges should be democrats. A feeling prevails that the man who has gone through a course of political sprouts involving the training of election campaigns, is more understanding of the wants of the people whom he is to serve, also that courts should be arranged on a business basis. An amusing aspect of an elective judge is that he is in an anomalous position. If he plays politics, endeavors to make friends either by his decisions on the bench or obeying the mandates of a superior political boss as to appointment of referees and receivers, he immediately becomes a corrupt judge. The stench of his unjust decisions will sooner or later come to the nostrils of the community and his chances of reëlection are forfeited. He runs the hazard of charges and removal. If, on the other hand, he forgets the organization that has elected him either in the matter of patronage or the refusal of some desired court remedy, and so conducts his court that there shall be neither fear nor favor, he is a political ingrate and deserves neither reëlection nor promotion. Of course these are the two extremes; fortunately human nature is not what the sociologists and political theorists would make it. The political boss is not the unscrupulous ogre that the muck-rakers picture. He does not order the judge to decide the hundred-thousand-dollar-contract case in favor of his hench man. He might like to have him do so but he does not ask. Neither does the judge lean over backwards in the other direction and imprison the contractor because he is a friend of the boss. The movements for the non-partisan election of judge show the recognition of some of these incongruities. The fierce bright light that plays about a throne also makes the judge conspicuous. If he sneezes, if he coughs, if he takes a glass of water he is probably feverish and cross. If he keeps still he is going to sleep and not paying attention. If he gets up or sits down it is noted as indicative of how he is going to decide the case. Every movement is watched. The position of a judge is not enviable. He is the concrete object to which the evils of the court-room attach. To the popular mind he is the court, the law, the method of procedure, the source of all the technicalities, and the delays. The beaten side will bear him a grudge, and the winning side think they ought to have got more. If he be lenient in interpreting the law, he may be called to account for inability; if he be too strict, he is accused of irritability. If he be too polite, he may seem to be extending favor. A justice of one court, wishing to be kind, once asked a young counselor whose case had been dismissed through a technicality to come up and sit on the bench with him. The young man afterward complained to his friends that the judge wanted to shame him and make him conspicuous. There are few judges who dare to cut short the examination of a witness, although the length and direction of a trial are supposed to be within the discretion of the judge. He is hindered by the technicalities of those who insist, hoping for a reversal on appeal, and sometimes the same technicalities are used to prevent the actual facts being brought out. The solution probably lies in extending the powers of the judges over the conduct of a trial. He has a position of interest and authority and one that commands respect. In England he dresses for the part in silk stockings and is next to the king in importance or about equal to a bishop. In Germany he is a little better than a Herr Pastor or a doctor, but inferior to a young lieutenant in the army. In France the salaries of the judges are pitiable. The highest, the president of the Cour de Cassation, gets $5000 a year and the lower judges only a few hundreds, with no possibility of earning anything by practicing law, but there the judges are persuaded to take out the balance of what they should have in salaries in the honor of their position. We are so shockingly frank and matter of fact, that we believe that the conventionality of pomp and circumstance have been too much regarded in courts and court procedure, that dignity is not accomplished by wearing a wig, knee breeches, or gowns of ermine and silk. It is consistent with a plain-spoken people to feel a contempt for state and symbols. Any attempt to return to the conventionalities of Europe is met by the contempt of a democracy. In rebelling at form we have been so occupied that we have not been awake to a change in substance that has been demanded by modern conditions. The courts are gradually reaching a simpler basis. Formerly they may have been surrounded by more pomp and magnificence, but the work is now being better laid out and the course of the proceeding is on more modern lines. Changes in practice acts will revolutionize trials. People smile at the dignity of their courts and judges. The modern spirit is for greater frankness, simplicity, and directness. If he is a sane and reasonably simple man the judge tries to do his duty according to the light that is in him. He knows some law, has seen a quantity of human nature and passions flowing before him. The court-room, his position of authority, the respect of the community, the human drama, the abstract and intangible demand of something above the actual awakens in the judge that passion for justice which is a quality almost divine. The man himself becomes patient, understanding, and humane. Nearly every man, no matter how small he may be at the beginning, rises to the responsibilities of his position. So it is with the judge. It is undecided whether the judge is entitled to more respect from the lawyers and laity or whether the laity is entitled to more respect from the judge. The judge sits indolently crumpled up in his easy chair; before him a leader of the bar is arguing. In an eloquent manner he is pleading for a young attorney who is about to be punished for "Contempt of court." "And so your Honor will realize that in the heat and excitement of a trial, in the turmoil of the legal battle, in the intensity of a forensic struggle, the young man may well have forgotten the respect and deference which is ever due from a member of the bar to the representative of high-minded justice." The judge seems unaffected by the appeal. The young man had been rude and impertinent, the fine of $250 must stand as punishment for his misbehavior. Suddenly the pleader with a wave of his hand and a twinkle in his eye says: "Look at the difference between the position of a lawyer who, alert with restless energy, momentarily forgets his manners in fighting for his client, and on the other hand the calm"--pointing to the judge who is still half reclining in his chair--"the calm, I repeat, of complete judicial repose." There is a smile through the court-room. The judge straightens up, sees the humor of the situation, and the fine is remitted. There is a constant play of opposing influences upon the judge. As an upholder of the law he becomes a formalist and a reactionary. The insistent demands of humanity which the statute law can never satisfy, tend to make him a revolutionist. The saving element for him is that he is only a part of a system for which he is not responsible. When the judge has had the list of cases for the day called and has disposed of the applications for adjournments, he turns to the clerk who begins to call the roll of the men who are to act an important part on the stage--the jury. The solution of the matter so far as the judge is concerned is to give him greater power. Let him be absolutely responsible for the conduct of a case in court. His position should not be that of an umpire who remains quiet until a dispute arises, but rather that of a head enquirer into merits, assisted by the two lawyers and the jury. IV THE ANXIOUS JURY The main characteristic of the jury is that it does not want to be in court. The name comes from the French word _Juré_, sworn, or the man who has taken an oath. There is probably no reason to suppose that the word is derived from the state of mind in which a juryman finds himself, nor does it mean the words he has expressed with reference to his duty: more properly it is the men who are sworn to do justice. The implication of the word serve is that there is some punishment or penalty attached to jury duty. It is not regarded as penal servitude by the average man, but it seems near to it. While he is serving, his business goes to pieces, his wife misunderstands why he does not come home to dinner and his whole life is disarranged. When a man has served on a jury he gets a discharge paper. Jury duty is one of the obligations of citizenship and its highest duty; at the same time it is one of its privileges. Foreigners and idiots cannot serve. Doctors, soldiers, journalists, clergymen, and others, besides those who are deaf, blind, or otherwise disabled, are exempted. The experience of serving on a jury may be annoying but it is broadening and gives an opportunity of seeing human nature in a way that few appreciate. To serve on a jury is to become a part of the judicial system of the State and for the time being to belong to the governing class. "All day long," says the court officer, "they do nothing but grumble and grumble at being kept away from their business but when they get chosen on a case, they realize it does not do any good so they settle down to do what is right." The country man may not have much to do and may look on jury duty rather as a diversion or vacation from farm work but the average town man feels the $2 a day he receives is only lunch money compared to the amount he is losing in his business, and so he hates it. The first warning of trouble that a juryman gets is when he comes home and finds that a policeman has been looking for him. It is to be hoped that he has a guiltless conscience. He inquires further and learns it was only a court officer summoning him to court for the trial term next month. His first concern is to see what can be done in a political way. If he belongs to the local club of the district--but here let the curtain be drawn. Besides he may accomplish very little, so many of the judges do not seem to remember their political obligations. Then he tries to reach the judge through a friend and when that fails he makes his way resignedly to court on the appointed day. When he comes there for the first time he smiles at the court attendant and tries to make friends, but the court officer who has been there many times before is not at all susceptible. Perhaps he hurries around to the judge's chambers and manages to see the judge's secretary, who is sympathetic over the fact that the month is December and the busy season of the year in the florist business and that there is only one assistant in the shop, but the judge is busy and will only see him from the bench. Finally he goes into court and waits for his name to be called. After the roll call, he goes timidly up to the rail and stands there waiting until his Honor will take notice of him. His Honor is busy blowing his nose or signing papers. Finally the court officer points him out. The judge scowls and asks him what he wants. Tremblingly he explains his difficulty: that his business needs him or that his wife is sick and that he will serve any other month if he can be let off now. The judge reads him a lecture on the duty of citizenship and the responsibility of jury duty and says he is sorry that he can not excuse him. Afterwards when the judge finds that there are enough jurymen in court for the needs of the calendar, he may privately send word to the juryman by a court attendant that he is excused for the term or for a few days until the Christmas rush is over or his wife is better. Judges are often humane, but if they were to excuse the juror openly they would find all the others in court clamoring for the same exemption. If the juryman merely wants to dodge the duty he probably does not get excused. The judge seems surprisingly intelligent and discriminating and able to pick the sheep from the goats. The man who merely wants to escape serving usually has to, and the man on whom it is a hardship is sometimes let off. Uniformly the jurymen feel that it is a necessary evil, but not so bad when they are once in court. Until a case is called for trial they sit about the court-room or walk in the corridors. In the meanwhile, the judge is arranging the calendar, and they have been watching the maneuvers of the lawyers to have their cases put off, or they may have seen the amusing little by-plays when one lawyer crosses the aisle of the court-room, button-holes his opponent, and whispers something to him. The other lawyer motions to his client and the party moves to the hall where there is a secret conference about a proposition of settlement. Something is agreed upon or they may not come to terms and decide to go on with the trial. If there is to be a settlement the two lawyers walk up to the rail and say: "Will your Honor excuse us if we interrupt and mark the case of Allen against Brewster settled." The judge smiles with pleasure; he does not mind at all being interrupted for that purpose. He is pleased to have one more case off the score. When the time comes for the selection of a jury they wait for their names to be called with the thought that the axe is about to fall. As they are examined they answer the questions of their occupations and opinions truthfully, but if for any reason they are excused, they leave the box with a smile at those impaneled and a sigh of relief as at danger escaped. Like many honors, the position of foreman of a jury is an empty honor. He has the first seat and he heads the procession when the jury walk in and out of court; he also announces the verdict, but he has no actual power either in the jury-room or in the court. If there is a vote to be taken, he has no deciding voice, but in the deliberations he quickly falls to the level which his attainments justify. During the trial a feeling of resentment at court procedure grows. It is not the judge any longer who is keeping and delaying them. The witnesses appear like fools it is true, but the lawyers make them act more foolishly than need be. Why does the judge make such absurd rulings? The law must be an unreasonable thing and the judge evidently knows a great deal about it. Why can't the witnesses tell what they know? The most tiresome parts are when the lawyers begin arguing about the testimony. One side wants the witness to tell something and the other side does not. The judge keeps still and lets the lawyers go on talking as though it were something important, perhaps he can not help it. The lawyers or the judge can not have much to do. The judge it is true is paid to listen, but the lawyers must be pretty hard up when they will go on talking in that way. No juryman would stay here wasting his time during business hours, and afterwards there are the newspapers, supper, and taking the family to the movies, all of which is far more sensible. "Say, it's like a vaudeville show to see those two go on," thinks the juryman. "You couldn't beat it if you put it in an act. Georgie Cohan or Joe Weber could make their fortunes if they only hired the lawyers as actors or came into court for their material." Occasionally the judge calls the lawyers up to his desk and together they talk over something which the jury can not hear. The jury look as though they did not care. If they want to talk some more--well, let them. Perhaps they are planning some game, and the jury will wait until their turn comes. In the jury-room they can show them what's what; that is where they know their chance is coming. Even if the judge is only trying to find out something about the case, that is a sensible thing to do. Why don't the lawyers come over and talk to the jury like that? In a few minutes they could ask them some questions that would settle the whole matter. The strange part is when a witness has said something and told how he or she feels about the whole case, which is exactly what the jury want to know, one of the lawyers jumps up and says he moves to strike that part all out and the judge strikes out. The lawyer having scored a hit, then says: "I ask your Honor to instruct the jury to disregard the testimony just given." "Gentlemen," says the judge, "the evidence just given has been ruled out by the court and is not relevant to the issue, and I must instruct you to disregard these words of the witness and in arriving at your verdict not to consider them." Of all the absurdities that happen in court, the jurymen think that is the worst. Does the judge or the lawyer believe for a moment that because they say so the jury are going to forget what the witness said, especially when it was the very thing they wanted to find out? They watch the stenographer and they notice he does not even take the trouble to cross it out of the notebook. Occasionally a juryman becomes particularly interested and wants to question something. Usually he is too self-conscious to run the risk of being snubbed, but sometimes he is bolder and ventures a question. "Why," asks the juryman, "didn't the defendant give back the goods if they were not what she wanted?" Both lawyers are on their feet. There is a mute appeal to the court; both sides are afraid to object to the question for they think the juryman may have a prejudice if he were stopped. The judge usually comes to the rescue and tells the juryman that he is sorry, but that his question is manifestly improper in form. The evidence should be whether the defendant did a certain thing or did not do it. The reason why he did it is not in point. After two or three attempts of this kind the juryman subsides and sits patiently through the trial without any suggestion. He thinks that there is a hopelessly complicated game being played before him and he does not attempt to interfere. There may be some truth in the theory of the attorney who says: "Always look out for the juryman who asks your witness questions. He is against you. If he absolutely believed the witness he would let it pass without questioning." This reasoning may be used as an argument either way, for if the juryman believes the witness he may feel that he should like to have him tell more. Or if he does not accept him as truthful, he thinks it will not be worth while to ask him other questions. An inference may be drawn as to the juror's attitude for and against. An inexplicable thing to the jury is when the judge takes the case away from them and directs a verdict or dismissal of the complaint. That the jury should be compelled to listen to all that mass of testimony and then at the end not have a chance to decide is unreasonable. If the plaintiff did not have a case, why did the judge let them go on? He should have found it out earlier instead of wasting all that time. After the whole case is in, it may happen that both sides move for a direction of the verdict and then the jury have nothing to do. The judge says: "Gentlemen of the Jury, I direct you to find a verdict for so-and-so." Before they have a chance to say whether they will or will not, the clerk announces a verdict for so-and-so. This is very annoying and discouraging, especially when the jury were going to find a verdict directly contrary to the way the judge decided. Technically they have a right to refuse to find a verdict as the judge directs, but if they did, only a mis-trial would result. It is an illustration of the difference between the function of a judge and a jury. The jury pass on the facts, the judge on the law. When the judge dismisses the case, he is saying that the facts may be so and what happened may be truly stated, but even then it does not make any difference. The law is that those facts do not make out a case. Only when the facts make out a case do the jury have any function. Then it is for them to find out whether the facts are as the plaintiff claims them to be or as the defendant. The jury are usually puzzled and do not understand the distinction. In certain cases the judge determines both the facts and the law and decides the whole matter. In those cases, and in what is known as equity, there are no jury, but a judge may always ask for a jury if he wishes one to determine the facts. A jury is supposed to be advantageous to the defendant in a criminal action and to the plaintiff in a civil action. "One judge is better than twelve," says the advocate of the non-jury system. "Law is a technical thing and you can not put a technical case plainly enough so that twelve men could thoroughly understand it." A discussion of the jury system is not in place. The jurymen have already been summoned and are in court and until the structure of the law is changed they will remain. They are ready to try any case that may come before them. The judge feels a sense of relief at not having to pass upon the facts. The law being laid down, all that remains for him to do is to see that the facts are fairly and plainly presented to the jury, that both sides conduct the case in a reasonable manner and that the trial be as open-minded as possible. The anxious attitude of mind toward the jury is that of the parties who are to be judged, the lawyers and their clients. The jury do not become very excited over the wrongs of one side or the other. They certainly do not enjoy the trial or look upon it as an example of a good fight although under the present system of procedure that is what it is supposed to be. V THE STRENUOUS LAWYER Of equal importance in the cast are the lawyers. They play the parts that represent action. The judge and jury are the heavy characters. The clients who make their entrances and exits as they take or leave the witness chair are of minor importance. The lawyers occupy the center of the stage the greater part of the time. Their clients sit watching, the judge and jury keep silent and listen to them. In order to make a trial or a contest there must be two sides. There may be three or more lawyers, but usually they divide themselves into two groups and take sides. The attacking party,--the plaintiff, complainant, or prosecutor,--naturally the more aggressive, and the man who is defending himself. The latter's lawyer is the one who is wary and alert. Sometimes the attacking lawyer having gained a position sits down and defends it. During the trial there is a constant change of attack, the taking of a redoubt, charges and countercharges, trenches captured and forsaken again. The intellectual and legal battle is as bitter as any physical one. To the understanding observer and the participant it is momentous and intense. While the contest is waging there is no intermission. The fight is always hot, keen, bitter. Quietly as the lawyer may handle himself, underneath his calm exterior he is ready to fight, bite, scratch, shoot, kill, slash, but always he must do so under the rules of the game, never hitting below the belt. What the battle is about is the issue, the result is called the verdict, or the decision, and the formal statement of the court as to the result the judgment. The contest is so real it soon ceases to be a play. It is too much in earnest and whatever humorous quality it may possess never loses the underlying intensity of human conflict. One noted trial lawyer says that he always feels the loss of a case in the pit of his stomach, another that he can never begin a trial without mopping his forehead for fear that beads of perspiration might be apparent. However ordinary and accustomed court trials may become to the participants, there will always remain the deep underlying stress of human passions. As lawyers are watched, they may appear alternately as jumping up and sitting down like jacks-in-the-box or those weather figures, where if one goes in the other comes out. Their appearance differs in the different courts from the higher courts where the well-groomed eminent leader of the bar, with thin lips and white side whiskers debates in a frock coat before the appellate court, questions of international importance, or the anxious-eyed little attorney where in one of the lower courts with a showy diamond ring and a handkerchief sticking out of his pocket in the shape of an American flag, argues, while chewing gum, whether his client shall pay the fourteen dollars rent or not. There is never any peace between them. Occasionally there is a truce when they come together to agree on a certain state of facts, or conclusions of law, but essentially they are at war; otherwise they would not be in court. The only reason for their being there is an issue to be decided. Often so eager do they appear that physical violence seemed impending. It is as though they were on the point of breaking into fisticuffs. The judge says: "Gentlemen, gentlemen." They appear like two naughty schoolboys who have to be controlled by their master. First one is restrained and rebuked, then the other is held strictly to the rules of the game. Like schoolboys, although they may be fighting one another, they appear at times to be in league against the judge. As in a baseball game, both sides join against the umpire. There is a common class feeling between the lawyers leaguing them against the judge. This may be explained perhaps by a rather subtle psychology. The lawyers are primarily in court to please their clients. Every ruling of the judge against them on even minor points of evidence, any adverse decision is fatal to them from the point of view of retaining the client for the next litigation. They watch the judge with lynx-like eyes. Is he going to drive the client away from them? Should he reprimand them or speak severely, their client would think that they had angered the judge and so they had lost the case. Defeat in a case is so important that if a lawyer loses a case he probably loses his client. In one of the lower city courts on the East Side, a young attorney came in one morning with a scar across his cheek, a scratch on his nose, and sticking plaster on his chin. The judge had often seen him before. After the case was over he called him to the bench and said that he was sorry he had an accident, and asked him what had happened. "Oh, not much," said the lawyer, "last week I simply lost a case for a client." The complaint of the lawyer against the judge is always that he has forgotten that he was a lawyer once himself. He does not realize how important it is that the lawyer should make a good impression on his client. His feeling is, if the judge cuts him off when he is arguing, the client will think that he is talking foolishly. The judge overrules his objection. The client thinks the judge does not like him. The judge denies his motion to strike out, he evidently does not look on the lawyer favorably. The lawyer's chance of display is in talking. If he is not allowed to go on he feels the judge is unreasonable in not listening to him. The nice lines to be made by the judge between consideration for the feeling of the lawyers and insisting that justice be fully and speedily accomplished, are hard to draw. On the one hand there are the courts where no limit is put to the digressions of attorneys and where they may wander on and on, apparently merely to display their oratory to their clients, and other courts where the undoubtedly bad manners of the bench to the bar are unforgivable. Control of the trial is necessary because it is a struggle in a court on a defined area. It is an intellectual ordeal by battle, a capping of intellects. It is like a game of chess in which luck is eliminated, the board is free, the pieces are equal, the way in which they may move is fixed by the rules of the game of court procedure. The element of chance is made not by the court or the procedure, but by the fact that the pawns, the castles, and the knights are not of ivory, but are human and mutable. The lawyers are discontented with the courts, while the judges feel that the deficiencies are the fault of the lawyers. The lawyers, they say, do not coöperate with the judges in the administration of justice, and are too busy with their own game. Here enters that academic question of whether a lawyer's duty is first to the court and justice, or first to his client,--should he defend a man he knows to be guilty. The dispute is sophomoric. He is the advocate of his client first, foremost, and all the time. That is the reason for his existence. He is the agent for his client; his tongue, brain, and energy belong to his client. He is undoubtedly justified in whatever he does, if he keeps to the rules. Justice is best promoted by heeding the rules of justice to the utmost. It is to be remembered that the lawyer occupies an uncertain position. As an officer of the court he is sworn to promote justice; as a champion in the battle he is under the deep obligation of performing his utmost for his client. At times the conflict between his duties seems real. As an officer of the court he has the privilege of the floor. He can be heard and is admitted to the court. It is as though he had joined a club in which dueling or gaming is permitted. The obligation resting upon him is to act as a gentleman and obey the rules and not to cheat. If he keeps to the rules he is presumably a gentleman and can do what he pleases for his clients. If there is any complaint about the courts it is held to be the fault of the lawyers, if there are criticisms of the lawyers it is the fault of the courts. They are interdependent and indissoluble. If a club house is not suitable for its purposes, is old-fashioned, rickety, and dirty, it is the fault of the members. If the members do not behave the club house gets a bad reputation. Courts are institutions, and not persons; the lawyers are the individual stockholders. If by his actions in court or in the club he brings disgrace on himself as a lawyer or upon his club, there is very little to be done about it. The club membership may be more limited and select, but the building will not be improved except that it may be swept a little cleaner. The judge as the president of the club must see that the lawyers observe the rules, he can not rebuild the club house or materially change the rules. The only persons who can effect a change are the lawyers. As members, they are agents for their clients who are the public at large. Occasionally the public awakes to a realization of their power over both courts and lawyers, that they are their creatures; then happens a revolution in procedure and something is accomplished. The lawyer waits about the courthouse for his case to be reached. It may take days or even weeks before it is marked ready. He wastes his time. The witnesses have been subpoenaed. They have to be told to come again the next day. There is little money in it for the lawyer. Office practice pays better than court work and except for the eminent pleaders there is but small honor. During the trial the lawyer seems to be sparring. He takes the attitude of saying: "I want that point of law decided; it is such a nice point, it ought to be settled." As a matter of fact he only wants it settled in his own favor. It is not the abstract interest but the concrete fact in which he is interested. The lawyer is vigilant from the beginning of the trial to the end. After the case is marked ready he watches the jury, the other side, and the judge; any movement may be of importance; if it escapes his notice he may lose his whole case. It is not safe for him to go on the assumption that the other side is as honest as he is. If they should attempt to put in some evidence that is not proper, to offer a paper that is not duly authenticated, to try by some trick or device to take an unfair advantage, he must be ready to pounce upon the incident. If he is quick he may turn it to the advantage of his own side. The other lawyer among a bundle of letters offers one that is only a copy or is not signed. The lawyer notices it but keeps still and when at the proper time calls the attention of the judge and the jury to the fact, the plain implication is that the other side must have a very weak case if it needs bolstering up by such methods as this. The argument is that he let the paper go in without objection because he thought the matter trivial anyway, and he wanted the jury to see the underhand method of the other side. The indefinable quality of personal magnetism is of much vaunted importance. It is like that horrid word, charm; no one knows what it means and seems to have a supernatural quality. The trial lawyer does not need either charm or magnetism. They are both nonsense. Like actors or fighters if they are sufficiently trained in their parts or know how to use their weapons, the lawyers' personal magnetism over judge and jury will come of itself. The judge is a fairly hard-hearted person. The jury may be governed by sentiment but they are an example of the average man and neither are going to be caught by smile or mannerisms. Sound qualities will prevail. A fine-looking trial lawyer who thoroughly knew his business once had a hard case. His appearance and manner impressed the jury. They followed his every motion. The trial was long and tiresome. It was the days of those little iron puzzles to get two rings or anchors apart; occasionally he would take one out of his pocket and begin playing with it. The jury would follow him with their eyes to see whether he could do it. Whenever he thought the evidence for the other side was getting too interesting, out would come the little iron puzzle and the jury would pay more attention to its solution than to the witness on the stand. He won his case but that is no reason to recommend the playing of "Pigs in Clover" in the court-room. The reason he won the case was because he was the capable man and on the job. The lawyers' profession is not a creative one but the value in the social structure is cohesive. He brings together the investor and the manufacturer, he amalgamates capital and labor on a sound legal basis. He adjusts conditions to the laws and laws to the conditions. His is the most large-minded of the professions. He is theoretically the layer of the law. In every community the eminent lawyer is the eminent citizen. No one commands greater respect. But there is no doubt that the inefficient administration of justice is the fault, to a large extent, of the legal profession. The fine, kind face of the lawyer who, ripe in years and understanding, beams a genial smile is a living reproach to the detractors of his profession. Painstaking, scrupulous, broad-minded, and intelligent, with a twinkle of humor for the frailities of humanity, he looks on the pettiness of men with a wise tolerance. Beneath his ease of manner and cordiality of intercourse there lies a world of experience, of battles fought and won, of inherent force of character, of public honors received and gracefully borne. There are no limits to the admiration and love to which he is entitled. Beside the lawyer, and watching him with worried eyes, sits the client, who unless he is in the wrong really wants the lawyer to bring out the facts in the case rather than to have him exhibit his qualities as a fighter. VI THE WORRIED CLIENT Like the financial backer of a play, the client does not figure largely on the stage. If he does appear as an actor he may have a small speaking part, but he is not a star. He owns the show, and if it does not pay he loses, or if he wins he gets a proportion of the profits. Consequently he hires the best talent he can afford. The star performer is the lawyer, but as the producer the client has not only the choice in picking the theme, but the play is about him and his troubles. Great drama consists in a conflict of emotions. The emotions of the two opposing clients make a court drama. The acting and the staging is the art of the lawyer. The philology and derivation of the word client is significant. It does not mean the principal, but a follower. It is derived from the Latin word _cluere_ and the Greek _+klyein+_, meaning to hear; one who listens, a follower. An ordinary man has a horror of the entanglement of the law. A hard-headed man of business says he would rather pay a claim of $250 or less, although he had never seen the claimant, and the suit was utterly unfounded, than go to court. He would rather lose the same amount than bring a suit involving the trouble and expense of hiring a lawyer, requiring witnesses to waste their time, and wasting his own in waiting for a trial, which might possibly result in a judgment against him on a perfectly just debt, either through the miscarriage of justice, or the chance of not collecting the judgment. The typical feeling is that of the stockbroker who said: "Only blackmailing suits go to court, for if sensible men have a dispute they know it is easier and cheaper to settle it outside." The client is in a darkened room. He only partially sees what is going on. If the whole case is thrown out of court on a question of law or a technicality he feels more than resentful against the judge; he is revengeful; he will spend every cent he has in the world appealing and showing that judge how wrong he is. In the first place, it is a disgrace. "Why," he says, "the judge just kicked us out of court. We didn't have a chance; the judge must have been friends with the other side. Do you call that justice? I'd like to get that judge outside and talk to him man to man. No one can get a square deal in court." The feeling of the client toward the courts and the lawyer is one of distrust, mingled with respect. He will say: "I would rather take a friend's word as a gentleman that he would do something than to have it put in the form of a forty-page contract drawn by the best lawyer in the country. I could rely on the word of a gentleman, but if any question on that contract came into court, some clever lawyer would find a loophole to get out of it." Yet the fact is that the world does require legal documents. An interesting speculation would be to consider what proportion of the world's business affairs is conducted on a basis which could be provable or have the authority of enforcement in a court of law. The proportion of the business transacted in a so-called legal manner is insignificantly small. The numberless transactions of the retail stores in a great city; such cases of proving that a pair of gloves were sold, delivered, and not paid for are extremely difficult to prove. The expense and trouble involved of subpoenaing the different departments and of breaking up the routine of the store, would prevent the stores becoming clients. The enormous transactions on the New York Stock Exchange, where a hundred million dollars' worth of business is reputed to be done in one day, is entirely on the basis of personal honesty. So far as the court goes, should one party to a stock sale not be willing to complete, there would be little possibility of enforcing it. Therefore the Stock Exchange makes its own rules and has its own method of settling disputes. The world at large is not a client in the court. The man who becomes a client in the sense of litigant is an exception. The courts would seem to be unrelated to the demands of actual business affairs. Times have changed since the Victorian days when a solicitor was the client's deferential servant, the steward and custodian of the landed gentleman's legal affairs. Then the lawyer had a profession which he carried in his head. Law reports contained a few thousand, not a million decisions, and there were no title insurance companies to make a business of determining the ownership of real estate. Yet in those days the legal adviser was not a very exalted person, ranking beneath the soldier and standing hat in hand before the gentleman of property, to whom he owed his living. The citizen who wished to learn whether he or his landlord should clear away the snow on the sidewalk, went gravely to a lawyer's office and paid a fee for the information. It is obvious that lawyers do not make their living through small fees for giving advice. As a matter of fact, those whose work is more remunerative than a street-car conductor's or a carpenter's, make their living through business and not in small litigation. To-day lawyers complain that their profession is slipping from them. But they have gained the prestige of business. "I am a business man, not a lawyer," says the elderly leader at the bar, and scarcely knows whether he is, on the whole, gratified or regretful. Their abilities are used in directing the conduct of business from a legal standpoint and protecting it from those who are ready to prey upon it. Business needs protection from other business, from accident cases, and libel cases. These frequently get into the courts. Citizens need protection from business and seek it in the aggressive form of suits for damages. Big business looks on the courts as instruments of blackmail, and the small citizen feels that the courts are inadequate to protect his rights. It makes a deal of difference which side they are on. But in any case the present-day successful lawyer is primarily a business man. A corporation is a legal creation; a lawyer is its mother and nurse. The stockholders having the curious relation of being partners, one not liable for its debts--if its legal affairs are properly handled. And so the company retains a lawyer at a yearly salary to give them advice and that legal protection. Prominent lawyers are taken in as partners of the big banking firms. The large industrial companies have the highest priced lawyers exclusively attending to their affairs. Accident Insurance Companies have enormous legal plants as efficiently organized as factories for handling damage suits and against whom is opposed the inexperienced lawyer of the individual citizen. Furthermore, the corporation, though composed, in reality, of individuals, is less personal than any one of its members. It is a client without keen emotions, without too distracting hopes, fears, or suspicions. Law is an exacting science, arduous and complex. The lawyer, to do his best, should work quietly, disturbed as little as possible by the human interests at stake. If then the lawyer is correct in preferring the soulless corporate client, it must be that the ordinary individual is either too poor, or too human. Naturally, the corporations are not only the most satisfactory, but the most desirable clients. The client, although he is the originator of the drama is in reality only a listener. The client in court has so little to say and the lawyers have so much, that it seems unexplainable. The reason is that the lawyers are the fighters, the champions, the knights in the tournament. A legal battle is only enacted because the lawyers are expert fighters. The client having hired them, has little to do but watch. When men first went to law they had no champions; they fought and took what they could, but as civilization advanced men became too busy to engage in legal or actual battles and there grew up a specialized class of fighting men. The lawyers are the hired mercenaries of the commercial structure; and the clients are the ordinary business men. True, some of the lawyers are free lancers, but the majority have the sentiments and standards of their class. There is a natural class antagonism between the client and the lawyer. The client is afraid and mistrusts the lawyer; and the lawyer feels that he must act for an unintelligent client who is ignorant and inexpert. So long as the courts continue to exist on their present plan the difference between client and lawyer will be marked. An example of a return to formalism and a reactionary development has been the change in what is known as the Poor Man's Court of New York City. It was originally planned as a court where the client or man unlearned in the law could come in to sue in a simple way. They were simple justice courts. The limit for which he could sue was $100, then $250, then $500, now $1000. Formerly the judges need not be lawyers. A trial was an informal affair. The judge would line up both the parties at the rail. One side would tell their story, the other side would interrupt and finally get a chance to tell theirs. The judge would figuratively pat them on the head, decide the case, and tell them to go home and be good. The New York Legislature recently passed a law making the court a court of record, and making all the provisions of the Code of Civil Procedure applicable. The code with its half million words is therefore a part of the procedure. So that the client now before he goes into court without a lawyer ought to familiarize himself with the code. Formerly these courts may not have been dignified. Pandemonium would break loose and the litigants begin screaming at and abusing each other. Often the judge was obliged to apply a somewhat arbitrary and paternal rule. Now the courts are more dignified and formal, but the clients are disappearing from view. They are in fact afraid to come into court without a lawyer. While the dignity and efficiency of the court have been increased, it has almost ceased to be a court for the poor man; indeed the procedure is so technical that, although possible, it is rather unusual for a man to come without a lawyer. Of course, the attorneys who make their living by appearing in small suits where the fee is often a contingent part of the small amount recovered, or a fixed charge of $5 or less for trying a case, do not present examples of the best legal ability. The point of view of the client is that he is loath to spend the money to hire a lawyer for defense. One litigant stated in court, when asked if he had not admitted the debt: "Well," he said, "I just went around to see the plaintiff to find out if I could not save a few dollars instead of hiring a lawyer." It is an open question which brand is the best for the client, the rough and ready justice or the formal and orderly kind. While the jury are being examined and during the opening of the counsel, the client sits quietly, but a trifle self-consciously, at the counsels' table. The talk is about him and frequent references are made to him and what he has been doing. He tries to look as though he did not care and was accustomed to the surroundings, and when the taking of testimony and the wrangles over objections and motions begin, he falls quietly into the background. If it is a criminal action he is not on the stand during the People's case. When his side is presented his lawyer does the best he can to keep him from the stand, whether he be innocent or guilty. The well-known expression is that the defendant hangs himself by taking the stand. In civil trials the client may be a corporation or the owner of the injured automobile or wagon, but not a witness to the accident. He sits silent by his lawyer if he is wise, realizing that his lawyer can fight better without being annoyed. If he is nervous, he keeps plucking at his sleeve and whispering advice. It is difficult for him to restrain himself. There have been months of preparation. The drama is being produced; to him it is vital. He knows more about the case than the lawyer. He wants to advise, suggest, and instruct. Why doesn't the lawyer ask the witness that question about what he told Smith or what he told his wife? The client might be surprised if he knew what the lawyer was thinking of him. If asked, the lawyer would moisten his lips, draw a long breath, and then pause, not for lack of thoughts however. The best client in court for the lawyer is the silent client. One of the greatest calamities from the lawyer's point of view is when the client is on the witness stand and begins to get confidential with the judge and to tell him exactly how he feels about the whole matter. "Why," said a lawyer, "I had a perfect case and then the judge asked a question and spoiled the whole thing. I think it was outrageous, the judge had no right to interfere." The attorney's feeling toward his client is contained in the wish that he wasn't there. The legal aspect of the case, the real point at issue, is probably something very different to what the client has in mind. The lawyer has an uneasy feeling that, in the client's eyes, he will not do the case justice. "How outrageous," thinks the defendant, "that I should be sued when I've been over-generous for years. And the jury ought to know exactly what these people are who said they'd call off the suit if I'd pay them a hundred dollars." The lawyer is aware of these views, because he has been told them more than once; he also knows that he cannot try the case in that way. The counteraction of emotions and feelings between the lawyer and the client, the judge and the jury, the undercurrents that are constantly moving from one to another, make up the drama of the court. The characters are laid, the theme is selected, the actors are chosen, and it remains for the play to be prepared. VII PROGRAMS AND PLEADINGS Pleadings are the programs of the performance. They are printed beforehand and everybody gets a copy. Preparation consists in the rehearsal and the carpentry of setting the scene. Any lawyer knows how important the pleadings are, but nobody else does. The judge does not pay any more attention to them than he has to. Juries hardly ever see them; if they did, they could not understand them. The witnesses never hear of them, the clients have sworn they have read them and have sworn that they are true. Yet not one client in a thousand could give an explanation of them other than, "My lawyer told me to sign it, so I did." Whenever anyone gets anxious to understand a pleading, there are so many volumes about the subject and so many bookcases of decisions they would furnish a house. All this may appear flippant, but the subject is so absurd, abstruse, and abnormal to a man of business, that it is almost impossible to make it understandable. A partial list of authorities on the subject sounds like a chapter from _Alice in Wonderland_: Pepper on Pleading; Perry on Pleading; Pollock on Pleading; Pound on Pleading; Puterbaugh on Pleading; Phillips on Pleading; Pomeroy on Pleading. The number of court decisions in which this branch of the proceeding has been reverently and gravely dealt with reads like a metaphysical discussion in the dark ages. The names formerly used were superb. Complaint, demurrer, confession and avoidance, traverse, replication, dilatory pleas, peremptory pleas, rejoinder, rebutter, and sur-rebutter. On the other hand the clear, concise technical statement of a case is not a matter to be laughed at; no clear thinking is possible without it. No plain understanding of what the drama is about, nor what the issues of the battle are, can be grasped. Good lawyers are good thinkers and usually plain talkers. The present-day revolt against the confused pleadings may go to the opposite extreme and abolish them all, leaving the case to be presented as formless and loose. The vexed question of the proper form of a pleading may delay justice until it is determined on appeal from the City Court to the Supreme Court, then to the Appellate Division, then to the Court of Appeals. In the meanwhile the clients may die, the money in suit may be lost, while the audience is waiting merely for the programs to be printed. In Perry on _Common Law Pleading_, reprinted in 1897, chapter thirteen is devoted to rules which tend to prevent obscurity and confusion in pleading. RULE I. Pleadings must not be insensible or repugnant. RULE II. Pleadings must not be ambiguous or doubtful. RULE III. Pleadings must not be argumentative. RULE IV. Pleadings must not be hypothetical or in the alternative. RULE V. Pleadings must not be by way of recital, but must be positive. RULE VI. Things are to be pleaded according to their legal effect. RULE VII. Pleadings should observe the known forms of expression as contained in approved precedents. RULE VIII. Pleadings should have their proper formal commencements and conclusions. RULE IX. A pleading which is bad in part is bad altogether. These are pleasant rules for a layman to understand, and any time he has a day off or a holiday he should study them. "Shocking," cries the old-fashioned reactionary lawyer, "What! Do away with pleadings, you might as well do away with the whole case. Pleadings are like the rails for a train. No one on the train sees them, but take away the rails and the train would not go very far. Pleadings are the groundwork of the trial." He grows more and more indignant. "The trouble with the modern courts is that they do not know what they are about. If this business of loosening the forms of pleadings had not taken place, lawyers would be better prepared when they came into court and there would not be this floundering about. The good old common law pleadings were the thing. It was a great mistake when they were abandoned. Then everyone knew where they were. If there was a mistake in the pleading then the whole case was thrown out of court. That was as it should be. Men had to be good and careful lawyers in those days. The slipshod methods of the present time are abominable." "You seem to be a little hard," says the modern lawyer. "Justice ought not to depend on forms." "You can never have justice without formalizing and shaping the dispute," says the lawyer. "Quite true," says the modern, "but there has been too much attention paid to the form of justice. Pleadings are the mere mechanics like printing the program or laying the rail." However, this is all a question that does not come up in the court-room at a trial. Once or twice some reference is made to the pleadings. Perhaps there is some such dispute as this. The defendant attempts to swear that he "paid for the goods then and there." The other lawyer jumps up and says, "I object, your Honor. In his answer he does not plead payment. He only pleads a general denial." The judge puts on his spectacles. The lawyers gather, business stops while everyone looks at the pleadings. Or again the plaintiff tries to show that when he was thrown from the wagon he bruised his right elbow. The counsel objects there is nothing about injuries to his right elbow in the Bill of Particulars, therefore he can not prove it. The Bill of Particulars says that he hurt his hand, scratched the forearm, and injured the right shoulder, but says nothing about the elbow. Grave consultation by the learned lawyers and the judge ensues. The defendant's lawyer is right, there is nothing in the pleadings about the elbow. The case can not go on until that important question is settled. There is argument on both sides. The client looks anxious. The jury sit and wonder what that phrase of "the delay of the law" may mean. Finally a bright idea occurs to the lawyer. "I move to amend, your Honor, so as to include the elbow." The other side looks shocked and disgusted. "What, move to amend in such a casual way as that. The pleading is a serious thing. It has been sworn to, you may not amend a sworn statement in that offhand way." The judge says that he will allow the amendment but if the other side is surprised he will grant an adjournment of the trial to another day. The other side says, "Pardon me a moment until I consult with my client." The judge smiles. The lawyer goes over to his client and the client says, "For goodness' sake don't adjourn. I've broken up my business for a week to come here now; what's all this fuss about pleadings; let's get on with the case." The lawyer returns to the bar. "We have decided to proceed." "Amendment allowed," says the judge. The witness now tells about hurting his elbow. The preparation of a case goes on behind the scenes and before the drama begins. The attempts to rehearse are piece-meal. First one witness is seen, then another, their stories are told, their statements are taken, and they are drilled in their parts. They are told as to what facts they must testify. In one large company that has a quantity of damage suits, there is said to be a school for witnesses where there are dress rehearsals and they are taught how to behave in court. The greatest farce that occurs in the court-room is the part of preparation that is involved in getting a case on for trial. There being no limit to the time to examine witnesses, to hear arguments, to listen to objections, it is said to be impossible to tell how long a case is going to take. Consequently the calendar having been called, the cases following are answered ready, by office-boys with no expectation of their being immediately reached. The grave and reverend judge looks over his desk and calls the case of Bowring _vs._ Bowring. "Ready for the plaintiff," answers a rosy-cheeked boy. "Ready for the defendant," answers another. They look rather young to be trying a case. It is marked ready and the office-boys sit about the court and telephone to the lawyers when they think there is a chance of being nearly reached. This often takes several days. In the meanwhile the cases ahead of the Bowring case have been dragging out their slow and weary performance on the court stage. Matters of fact that should have taken five minutes to bring out by the present usual laborious system of proof, have taken two hours. Argument of counsel on abstruse questions of law have worn and confused the jury and the clients, who have become exhausted and impatient. The clients and witnesses may have been sitting, trying to understand and becoming more and more mystified. The dealings of open-handed Justice ought to be plain, prompt, and understandable; instead to the spectator she seems a mysterious jade with no understanding of everyday life. She keeps them waiting there without reason. If the case is marked ready it ought to be ready. The business man feels that Justice is extremely tardy in keeping her appointments. His natural reverence for abstract Justice prevents him formulating these thoughts, but he continues to wonder. Not understanding the cause he becomes dissatisfied and his experience in court leaves a profound contempt for the system of jurisprudence. He thinks that if any man conducted his own business on the method and plans on which the courts are being run he would soon be bankrupt. "Why," he says, "does not the court get in an efficiency expert on this calendar evil and have it arranged on a business basis?" During the days the case has been on the calendar the lawyer has had to hold himself in readiness to try the case. The managing clerk has been sending out for his witnesses. They have been served with subpoenas and paid their fees to come to court on the day the case was first marked ready. They arrive and are told to come again the next day. They also have a respect for the court and are glad to come to do their duty and tell the truth. The truth is mighty and will prevail; but in court she can only speak through witnesses. Unless the witness be treated with consideration it would seem that she will not speak very willingly. In place of having them return and return again, some system soon will be devised of giving them timely notice when the case is to be reached. Exhausting the patience of the men who are the props and mainstays of truth does not seem reasonable, and after a few visits to court they are not anxious to come again. If possible they will escape the process server. A man who has witnessed an accident to a woman by a street car, in spite of his humanitarian instincts will run around the corner for fear of being called as a witness. The man who hears at night the call of "Police! Police!" in the street, jumps out of bed and begins to put on his clothes, but thinks better of it for the same reason. If a man is in a taxicab that is run into by an express wagon, and the resulting suit is brought by the taxicab company for $110 damages, he may have to attend court five separate days as a witness and the case may not be called. He has to leave the State to avoid being annoyed by the subpoena server, who dogs him at his club and at his home. The witnesses have lost their time and their patience. Each lawyer knows this and a petty game of playing for delays and adjournments sometimes goes on. Suppose there is a good claim which nevertheless the defendant denies, knowing how lengthy and wearisome is the game of reaching a case, he often succeeds for years in preventing its collection. The game is simply to tire out the opponents, clients, and witnesses. A clever and unscrupulous lawyer can throw so many obstacles in the way of a plaintiff that, unless he have a strongly developed streak of obstinacy, he will give up in disgust or be glad to compromise. Unless both sides are anxious to be reached it is practically certain a case will be adjourned two or three times. A sworn affidavit is presented with the doctor's certificate that the client or witness is sick, or the sworn statement that a witness can not be found, or that the lawyer is engaged in the trial of another case. The excuse may be valid and the reasons may be sound, but the adjournment of the day for trial occurs again and again. This is one of the causes for the complaint as to the law's delay. Naturally calendars have to be made and called. Cases have to be tried and others have to be reached in order, but at least there should be sufficient and intelligent planning of the order. It seems rather a weak answer to say that no one can tell how much time will be occupied in the trial of a case. If any systematic or scientific method of regulating the calendar were devised, one of the evils would be avoided. The very call of the calendar in some courts occupies to an unreasonable extent the time of the judge who might as readily be engaged in the real work of the court. The aggregate value of the time of the judge, the lawyers, the witnesses, and the jurymen who have all been sitting about waiting, for the call of the calendar is, for one hour's delay a large sum. The waste might be saved by an intelligent bureau for the administration of court business which would have absolute control over all calendar practice. That the judge should delay a whole court-room full of people by being late in opening court should not only be a matter of apology, but is reprehensible to the extent of being multiplied by the number of people he has kept waiting. On the other hand, the usual course of proceeding being apparently with the object of dragging out the business of the court, makes the tardiness of the judge seem only an incident. Fortunately there are few attorneys who make appearances in court merely for the sake of adding another item on their bill to the client, and the real delay in reaching a case is due more to the confusion of administrative methods; until some more practical system is devised it will continue. Then witnesses and clients will not be loath to go to court. The weary work is finished, all the tiresome facts have been gathered, and the rehearsals have been had. The play is written, the parts are cast. The disappointments and delays have been forgotten, the months of preparation have passed. At last the bell for the performance rings and the case is finally to be tried. VIII PICKING THE JURY The clerk calls the case again for trial, not this time to inquire whether both sides are ready but to announce that it is about to begin. The lawyers, their assistants on both sides and their clients move forward to within the rail. There is a certain amount of commotion as they arrange their papers, their portfolios, law books, hats, and coats, and take their places at the counsellors' table opposite the jury-box. In the dignified courts in this country this rather uncomfortable disposition of overcoats and hats is arranged in an adjacent room. The opposing parties in the battle to be enacted are now facing each other. Matters become at once more serious and formal. What was once avoidable is now inevitable. The stage has still in a measure to be set. Twelve important actors are to be selected. The jury have not yet been chosen. The jury for the sake of comparison take the part of a Greek Chorus, a silent one it is true, until the final word is to be said. They nevertheless are as important and essential a part of the drama as the Chorus, without which in the background no tragedy or comedy was complete. No curtain divides the theater and the arrangement of the stage goes on before the eyes of the spectators. The choice of the jury constitutes an interesting part of the performance. In this preliminary play the lawyers having important parts, their manner, bearing, tones of voice, their courtesy or discourtesy, repose or nervousness, are watched and unconsciously noted by the jurors. As the jury-box gradually fills, even the slightest idiosyncracy may have some effect on the outcome of the case. Trial lawyers are careful of their actions even before the case is called to trial. It may be that among the spectators who have been sitting beside the lawyers in the back of the room, waiting for the case to be called, are those who may afterwards be called as jurors. Any affectation of manner or pomposity is quickly detected. Experienced lawyers immediately they are observed by their tribunal, fall into the parts they are to play during the trial. One lawyer may be jovial and radiate a cheerful confidence. Another has a superior, detached, and academic air which promises a sarcastic cross-examination. Yet another takes on a blustering, brow-beating, intimidating manner, a kind of overmastering virility. Each kind has its own particular advantages, according to the nature of the parts to be played. The most efficient is the manner of the lawyer who is direct, business-like, and consistent with his own personality. As on the modern stage, there is a return to simplicity of acting. Naturalness and a constant regard for actuality is the only safe rule. Simplicity and naturalness, even if studiously affected, usually prove convincing. The aim is toward consistency and a non-elaborate manner. Above all the lawyer remembers that the jury admire the good fighter, and it is with a certain obvious subtlety that one successful advocate in New York lets his assistant carry his coat, books, and papers, but he himself always carries his hat--a derby, by the way, for a high hat would be over important. The great man knows that the jurors are aware of the importance of the occasion and that their eyes will follow his every movement. As he walks up to the counsel table and deposits his derby it may well become a gage of battle. The clerk at the side of the judge's desk begins turning a large hollow wooden wheel; within it are cards on each of which is written the name of a juror who has been served by the sheriff to attend on the panel for the trial term of the court. The number summoned naturally is larger than the twelve needed for any one case. Often those who have to attend at a term of court sit about with nothing to do until they are actually drawn on a case, although they receive their fees for attendance. There is the story of the ignorant workman who was serving his first time on a panel. "Why," he said, "I was sitting around all day worryin' about my lost working day. If I'd known I was getting two dollars for doing nothing I might have been enjoying myself." The clerk puts his hand into the wooden wheel after the names have been well mixed and draws out one card after another, calling the names aloud until twelve jurors have been called to the box. To the entirely new spectator there is a certain mystification about this drawing of the jury from the wooden drum with the handle for turning. To the initiated it may seem rather humorous, like the shuffling of the cards of justice, the drawing from a hat, or the turning of a roulette wheel. It is, however, significant of one of the great principles of Anglo-Saxon law, and that is a trial by a court of average men selected from among the ordinary citizens and drawn on the particular case by chance. As each juror's name is called he comes forward and his appearance is not lost by counsel. He takes his seat in the box, the juror being first called is known as Juror No. 1, and by this chance, if he remain in the box, he ordinarily becomes the foreman of the jury. In cases of special juries, as of the Grand Jury, the foreman is chosen by selection. The successive jurors are respectively numbered according to their seats beginning from right to left facing them. Here it may be noted that some lawyers in addressing questions to the individual jurors are careful to remember to call them by name, realizing that no one likes to be known by a number. Instead of referring to him as Juror No. 7 or No. 9, he addresses him as Mr. Sullivan or Mr. Schmittberger. The twelve men being in the box the counsellors begin to examine them as to their qualifications. On a small board bound lengthwise by rubber bands, or stuck in grooves are the cards drawn from the wheel and arranged according to the number of the seats, and containing the names, addresses, and occupations of the gentlemen seated in the box. There are two means of removing a juryman. One is by challenge for cause, _i.e._, that he is shown to be unfit or prejudiced, and the other is what is known as a peremptory challenge which is practically the same as saying one side or the other does not like the man's looks. There are connotations about the word challenge which are essentially dramatic. It implies a battle, a duel, a tournament. It is difficult to ascertain exactly what principles govern the successful examination and selection of a jury. In Massachusetts and in certain important cases in New York, the whole panel of jurors summoned for the term of court have been investigated by detectives in order that the lawyer might have information about who was to be rejected or accepted as a juror to decide the case. The propriety of doing this may be questioned and the ordinary case could not bear such an expense. Nevertheless there is a possibly sound reason for obtaining such information. Given a man's condition in life, his habits, his occupation, his church, his associations, his politics, and given on the other hand a certain state of facts, it is nearly ascertainable how he is going to decide those facts. If a man has always been a rent payer and has probably had continued trouble with his landlord about repairs and a feeling of resentment at the regular recurrence of rent day, is it not natural that he is going to be somewhat prejudiced against a landlord in a dispute between landlord and tenant? or on the other hand can a man who is one of the unfortunate owners of real estate, and who having paid taxes, interest, insurance, repairs for removal of tenement house violations, and with frequent vacancies, really be absolutely just? If a juryman is a Jew, a Catholic, or a Baptist, there will probably be an innate sympathy for his co-religionist. The law does not recognize this unless the juryman is honest enough to confess a prejudice. The soundness of the Anglo-Saxon jury system is based on the theory that there is not one juryman but that there are twelve and that among twelve there will be an average between the landlord and the rent payer, between the Baptist and the Catholic. The counsel ordinarily selects the jury with observation and common sense as his sole guide. The customary question asked jurymen, whether, given such and such a state of facts, "Do you think you could render a fair and impartial verdict?" is manifestly absurd to the juryman. Every man believes himself to be perfectly honest and just. It takes a strong character to say, "I couldn't be fair." As a matter of fact such a man ought to be kept on the jury rather than let go. As a juryman once said to a lawyer after the case: "Why did you excuse me when I said I knew the other lawyer? You wasted your challenge; he wouldn't have let me stay. I knew him too well." The extent to which the examination of the fitness of jurors may go is in the discretion of the court. The two extremes are represented by the methods in the English courts where the judge exercises close supervision over every question in the selection of the jury in what would be considered in America an arbitrary and unjustifiable manner, and the extreme liberality at criminal trials in this country. The difference in time is often between that of a few minutes and a few weeks. Naturally the challenge for cause may or may not be allowed by the judge--the form being, "Your Honor, I ask you to excuse Mr. Smith,"--because the lawyers are more careful in attempting them; for if they are not allowed the juror challenged may be small-minded enough to retain a grudge against the counsel. The sure challenges are the peremptory ones without any cause stated or reason given. The number of peremptory challenges for each side is usually six. As soon as a juror is challenged he steps out of the box and the clerk draws a new name from the wheel. It is very much as if a player were dealt a hand of twelve cards, and under the rules of the game each side can discard and draw six times from the pack six single cards to improve his holding. The hand, however, is not only his but his opponent's, who may likewise discard and draw six cards when the first player is satisfied. When the second player is through the first may again discard any of the new cards the second has substituted, provided, of course, that six drawings have not been exhausted. This game of chance is always played with an eye to creating a favorable impression on the jury and may be politely finessed to the extreme. "Mr. Merriweather, do you know the defendant in this case, Mr. Jacobs, or his attorney, Mr. Jenkins, or his assistant, Mr.--er--the young gentleman on his left?" is the usual form, delivered with the utmost urbanity. It means very little, but perhaps helps the lawyer to identify an antagonistic juryman and to obtain their answers, which are almost uniformly in the negative. It is obviously desirable that the juryman, as a judge, should not be a friend of the opposite side. From the manner of the man in the box, as he answers, may possibly be inferred his general disposition, and all further questions have this purpose in view. So the attorney for the plaintiff proceeds throughout the twelve before him, and he may say at any time, "Your Honor, I excuse juror number so and so." Usually he examines the whole twelve before "excusing" any of them, and when doing so many lawyers turn from the box to the judge as they say, "I will excuse numbers four, five, and eleven." Frequently those remaining do not realize why their brethren have been dismissed. A slight bewilderment may pass across the faces of all, as a man here and there, under the beckoning finger of the clerk, rises to give up his seat. Opinion differs as to the extent to which challenges should be exercised. Some trial lawyers are chary in using them, being anxious to appear frank, trusting and willing to accept the judgment of any decent citizen. Others are meticulously insistent and exhaust all their challenges. The first attitude is the one of saying: "I have such a fine case, so honest and just, that it is impossible that any fair-minded man should decade against me. Therefore, I shall not insist on these minor points of interest or prejudice. You are all open-minded. I will leave it to anyone." The second attitude was explained by one lawyer who always put his hand to his chin, looked deeply and inquiringly at the jury, and said in an important voice: "I challenge jurors numbers 6, 8, 9, and 11, or, 4, 5, and 12." When privately asked on what theory he proceeded in his earnest selection which seemed to imply so wonderful an insight, confessed to no theory at all except the plainly human one that he believed in using up all his challenges simply because it made the other jurors, who remained in the box, feel better and more selected. But the main purpose of selection is to secure a fair and intelligent jury. Not infrequently one side or the other really wishes to get rid of the best men and willing to take the risk that this will not be apparent. In a real estate case, counsel for the plaintiff not having a strong case succeeded in eliminating every man who had ever owned or who had ever had the slightest experience in houses or property. It was a bold confession that no one who understood the case would decide for him. In railway accident cases, the plaintiff, who asks damages against the company, will often excuse so far as he can, every juror who appears well-to-do or a man of property. A prominent New York lawyer, when a young man, had defended a case brought against a corporation. The plaintiff and his attorneys were Jews, and the jury-box when first filled was seven-twelfths Hebraic. Counsel for the plaintiff immediately excused the five Gentiles and when the corporation's lawyer stood up, not a man in the jury-box was of his own race. He accepted them. The trial went on, and it appeared that the plaintiff's claim was very weak indeed. At last counsel for the defendant had to sum up and he concluded in this way: "Gentlemen of the Jury: The plaintiff hopes to win this case not on the law, nor on his evidence, nor on any consideration of justice. He hopes to succeed because of the simple fact that he is a Jew, his lawyer is a Jew, and every one of you men are Jews." With an expression of faith in the sense of justice inherent in the Jewish race and of confidence in the verdict, the attorney for the defendant sat down. The jury decided in his favor. Such boldness, when successful, is often rewarded, but it is of course inherently dangerous. Skilful counsel will succeed in ingratiating themselves from the very beginning, but they will endeavor to do so only with the jury as a whole. Nothing is more unfortunate than to bestow attention upon a particular juryman: that is to flirt with a juror. If he has not yet been sworn in with the rest and the opponent sees it, he will certainly get rid of him. If he remained, he would very probably be regarded with suspicion by his chosen associates. Should the counsel think that one man in the box is favorably disposed toward him, he wisely leaves him alone and hoping that the other side will not notice it, devotes himself the more earnestly to the others. The jury is at last selected. The challenges have been exhausted. Both lawyers look as though they were pleased. The judge is informed that the jury is satisfactory, which is, of course, an euphemistic term. No jury is ever entirely satisfactory to both sides, but it is a polite way of saying it is the best they can get under the circumstances. The judge stops trying to balance his check book and looks up at the jury. The attendant motions them to their feet. They hold up their hands. The judge also rises. "Gentlemen," he says, "Do you each and all of you solemnly swear to well and truly try the case of John Smith against Thomas Gregory and a just verdict render according to the evidence? So help you God." They do not answer, but they sit down. IX OPENING THE CASE The jury is chosen, sworn, and sitting in the jury-box. The judge begins unfolding the papers of the case so that he may read the pleadings. The actual trial of issues is about to begin. The court attendant has taken the jurymen's hats and coats, another attendant has shown spectators to their seats and politely as possible suppressed the young law clerk who does not see why he could not go up to the judge and ask him what became of the case of Jones against Allen that was on the calendar last Thursday and should have been on to-day, or ask if "His Honor decided that motion in the case of Meyer against Cohen." The doors of the court-room are closed. The attendants go about looking for whisperers and saying, "Cease all conversation." The lady client is interrupted in telling her lawyer that she thinks the judge has a kind face, but that she does not like the looks of the man in uniform standing next to him, or vice versa. Gradually the court-room quiets and a spirit of expectancy prevails. But the actual taking of evidence and the hearing of testimony is not yet. Now comes what is known as the opening. So in the tournament, the armored knights entered with a blast of trumpets, their names and titles having been called, and it was customary for them to ride once or twice around the lists to let the judges see their armor, their weapons, their mounts, their trappings and accoutrements, or they might even try a tilt or two at one another. The introductory speech of counsel is somewhat in the nature of a parade or a preliminary skirmish. It may also be compared to the prologue spoken before the beginning of a drama. The speech with the vivid brevity, so common in legal terminology, is called the opening. The object is to show to the judge and jury what the drama is about. The secondary object is to arouse interest. Immediately after the opening comes the evidence, which is usually bald, fragmentary, and disconnected. It might be impossible for the jury to understand the relation of one bit of testimony to another. Take a simple case such as a suit for the failure to pay a bill at a dry-goods store. One witness testifies to the sale, another to the packing of the goods, another to the delivery; a receipt is introduced in evidence. Each one would not tell a connected story. The opening outlines the facts and makes the evidence understandable. It also has the function of an appetizer. This may seem a trifle unnecessary. But let us take an illustration. A whole case may depend upon a deed. If the paper itself were put in and read to the jury without explanation they would be bored. One witness is to tell this part of the story, another that, and the missing link of the chain may be supplied by the deed. The jury are not to be mystified before their interest is aroused. Are not the lives, property, or reputations of particular men at stake? The ordinary man and even more the average juryman has far too strong a sense of responsibility to be bored if truly he can understand what it is all about. The function of the opening is to tell him. As the counsel begins opening every juryman leans forward and watches him intently. They feel their responsibility as officers of justice and there have been few complaints of their falling asleep during the trial. The jurymen have come to know the names of the opposing lawyers and the faces of the clients, if they have been pointed out during the examination of the jurors, but nothing more. Are the jury to hear a story of bitter resentment or of passion and crime, or a calm demand for the payment of a debt? The opening will show. Did the plaintiff during years of effort build up a business and take the defendant in as a partner only to be defrauded by him? Plaintiff's attorney will indicate the years of effort briefly, but impressively, before sketching the manner in which the defendant stole from him by fraud the fruits of his labor. When the plaintiff then testifies that in 1890 he opened a small store in Fourteenth Street, moved in 1896 to Twenty-third Street and thence in 1916 to an up-town street off the Avenue, the dates will sink into the jurors' minds and they will portray for themselves the twenty-six years of painstaking effort. No eloquence then could rival the effect of the witness's slow, bare recital of his progress. Yet without counsel's prologue what could be more dull than the naming of street numbers and dates? The matter of the testimony may be interesting, but unless the witness has a rare gift of expression and a sense of the picturesque, the way in which it will be given may be dull and plain. But at this point the little keen-faced lawyer for the other side jumps up and interrupts: "I object, your Honor; what difference does it make where he lived in 1890, whether on Fifth Avenue or Mulberry Bend? What we want to know is what he is suing for now." And the court will probably rule with him and keep the plaintiff down to more relevant facts. Some of the important answers may be yes or no. Counsel in such a case supplies the color and gives an appearance of life to what is actually alive enough, but which alone would seem dry. Even if so famous a character of fiction as "Becky Sharp" came into court and only looked her part with what intense interest would we not hang on her testimony, though it consisted of no more than "Yes, I did"; "I never saw him before." We should be fascinated by this bald statement because Thackeray had interested us so enormously in the lady. The air would be electrified by the force of her personality. Without a previous introduction, however, we might be so lacking in discernment as to find her, in appearance and voice, no more unusual than the average witness who goes on the stand. Thackeray not only created Becky Sharp; he also created our interest in her. Similarly the lawyer may create an interest in his witnesses, some of whom may be personally every bit as extraordinary as any character in a novel. If a witness be actually commonplace, there is all the more need for making him vividly human; if he be so colorless that nothing could be made of him personally, he may acquire interest through the class to which he belongs, for classes have a personable color more deep than the almost colorless individual. To induce the jury to visualize the story and the characters, the highest literary gift may be brought into play. The lawyer is limited as to time and the description he may employ. He has, however, his voice and expression: an actor's tools. But again the rule of simplicity and naturalness should apply. The opening speech is a prologue and it does not argue. Counsel will not be permitted to argue his case in his opening, for his opponent will object and the Court will often say, warningly, "Counselor, you are summing up." This limitation, however, is in reality an advantage, not merely because it applies to both sides, but for the reason that no lawyer with any sense of dramatic values would anticipate his _dénouement_. Argument is apt to be chilling unless the decision sought for can be discerned, however dimly, without it. And how are the jury to frame their decision before the evidence has been presented? The jury should be interested in Miss Becky Sharp and prepared to understand her testimony, but, before they have heard her story from witnesses who know, they will not be favorably impressed by urgings that she was wronged or badly treated. There is usually leniency in regard to the length of the opening, because it is well recognized that few witnesses can tell a connected story, or tell it well. From the old French story of the lawyer who began _avant le création du monde_, and the judge who asked him to pass on _áu deluge_, down to the usual modern method of nagging the lawyer into stating only the skeleton of the action, there are various degrees of eloquence, varying naturally according to the importance of the case. A wonderful thing the prologue may be in its restraint and picturesque vividness, and, not least, in its clarity. Confused business dealings may be described so that important sums, figures, and dates will be remembered and recognized when they appear again in the evidence. Counsel, for the time, occupies the center of the stage; his course is in his hands to make or mar. He reaches the end of his speech, bows, and the first witness is called. Before the testimony begins the judge looks at the defendant's counsel and asks him whether he wishes to state his defense. There is a different practice in this regard in different courts. Some insist that the defendant ought to tell at once what his side is about, others that the defendant should wait until the plaintiff is through all his evidence and has rested; then at the beginning of the defendant's case the defendant's lawyer opens and makes his introduction. The difference between these two manners of proceeding is so essential that it may be explained. On the one hand the lawyer feels that he should not be compelled to give away what he is going to do, how he proposes to meet the attack, whether he will lie in ambush and snipe the plaintiff as he comes on or intrench behind a rampart and meet him with the full force of his battery of evidence. He may be planning to make a sudden sally after the plaintiff has shot his arrows and exhausted all his ammunition. The lawyer feels if he tells his plan of campaign he loses the advantage of generalship. Suppose a simple case: The plaintiff is suing on a long account for a bill of goods which will take a long time to prove. The defendant has a receipt in full showing payment. On the theory that the defendant need not disclose his evidence in the opening, he may sit still with the receipt up his sleeve, let the plaintiff open and call his witness, the evidence may drag itself along with the usual motions and objections, and after the plaintiff rests the defendant opens to the jury. "Gentlemen," he says, "this is a simple case. The plaintiff claims he sold the goods and the defendant did not pay for them. I propose to show you that the plaintiff was not telling the truth. I made him prove to you that he sold every item in the bill because I wanted to show you how untruthful he is. My client, the defendant, not only paid for the goods but I can show the receipt in full signed by the plaintiff." To the layman this is absurd. The defendant should have shown the receipt in the first place and all the waste time of the trial would have been saved. "No," says the technical lawyer, "if I had disclosed my evidence before, the plaintiff would have framed his evidence to meet the situation." The modern view is otherwise. In France, for instance, no paper can be offered in evidence on a trial unless it has been shown to the attorney for the other side beforehand and everyone has had a chance to examine it. Indeed, this exhibition of original documents is conducted in so open and honest a fashion that it is customary to send all the original papers to the other side without even taking a receipt or retaining a copy and in the whole history of the French bar the loss of such a paper has never been known. It seems more practical and sensible that the lawyers for the defendant should be required to state the nature and detail the facts of his defense. It is the difference between the old idea of trial and the new. The first was an imitation battle, the new idea is not that it is so much a struggle as an investigation of the facts. If the plaintiff wants to meet the receipt he can make a counter-attack or explanation in the rebuttal and explain how he came to sign the receipt in full. The judge and the jury feel the necessary element of the trial is to arrive at the facts and that the planning and methods of charge and counter-charge are not so significant. The old conception of the trial as a battle is disappearing. The opening by the defendant at the beginning directly after the plaintiff has finished his opening and before a witness is called, makes the trial simpler to the minds of the jurymen who are to decide the facts. The pleadings are supposed to define and state the issues but as they are usually technical they have become not sufficiently pliable. The defendant by his answer denies merely the facts stated in the plaintiff's complaint in the paragraphs numbered six, eight, and ten. The defendant on his opening should be compelled to make plain to the minds of the jury what he intends to show. He should take the position of a plain business man who says, These foolish people imagine they have a claim against me. They have nothing of the kind. The plaintiff says that he understood the contract to be so and so and that acting on that assumption both parties did certain things and know the defendant with evil intent and wrongfully forgetting the duty he owes to keep his word refuses to live up to his agreement, therefore, "Gentlemen, we have been compelled to come to court and bring this action and we shall show you gentlemen facts from which you must find a verdict in our favor." The defendant then arises and says: "Gentlemen, we are going to show a letter that contradicts all this." Oratory has little place in the opening of the defendant. The judge has been, during the two openings, attempting to keep the two counsels down to the facts which he thinks may be proved and from wandering too far afield. As quickly as they are both through he says, "Call your first witness," and with trepidation the witness takes the stand. X THE CONFUSED WITNESS The whole question as to witnesses is whether they shall be allowed to tell what they want or what the lawyers want. As they are both in the court-room they must abide by the rules of the court. That is the trouble: the rules are against the witness. When the witness goes on the stand for the first time the court attendant asks her to raise her right hand. She does so and tries to sit down in the witness chair so that she may feel a little more at ease. "Stand up," says the officer. The judge looks at her inquisitorially over his spectacles. She tries to smile and regains her feet. "Raise your hand," says the judge. The delightful and sanitary custom of kissing the Bible has been done away with. Even the habit of resting the hand on the Book is disappearing and in many courts a Bible is hard to find. The lady, in the confusion of appearing on a stage for the first time and standing on a raised platform before an audience, holds up her left hand. The court attendant jumps at her. The judge has seen the same performance many times before and hardly notices the _contretemps_. By this time she is confused and ruffled and after hearing something murmured about the truth, the whole truth, and nothing but the truth, she sinks into the chair and begins in a very uncomfortable frame of mind the ordeal of giving testimony. What she wants to say, what she ought to say, what she was told to say is all gone. The jury and the judge understand and feel sympathetic but the rules of the court do not permit them to be polite, and to ask her to take a more comfortable chair, to have some tea, whether the children have had any after-effects of the measles, or to take off her hat and stay a while. She knows she has to stay and that she is not going to enjoy it. She is the important witness who was riding in the car at the time it crashed into the grocery wagon. She is honest, of average intelligence, and wants to tell the truth. She is asked: "At the time of the accident, where were you?" She says that she was in the car going up-town to see her married daughter whose children were sick with the measles and she was in a hurry. The lawyer moves to strike out the latter part of the answer. The fact that she was going to see her daughter, that the children had the measles, and that she was in a hurry are not relevant and have nothing to do with the case. The only relevant fact is that she was in the up-town car. She was sitting four seats from the front and thinking the car was going very slowly and the children would be asleep before she got there. It is immaterial that she was thinking about her grandchildren or the measles, or that she was thinking about the car going slowly. The real question is how fast the car was going. The reason for the rule of evidence is that the court always wants to know not what she thought, but what she actually saw. She will not be allowed to tell what she thought or what she told her daughter after the accident. The daughter can not be called to the stand to testify what her mother told her, when she reached her house, about what had happened. Newspaper accounts of the accident may not be allowed in evidence, nor what the policemen reported on the accident, because he arrived afterward. Anglo-Saxon law holds the proof down to what was actually perceived by the five senses. The court makes up its own mind from these perceptions and the facts themselves. It does not want to hear what someone thinks, or what the witness believes or concludes, but only what he perceived. There is much to be said for and against this rule on both sides. A broader method to the lawyer seems shockingly loose and slipshod. The rules of evidence to the bystander seem an inhuman farce. The first allows an atmosphere to be created from which the whole truth may be reached. Would not an ordinary person, if he wanted to find out about the accident, read the newspapers, find out the police reports, ask what a witness thought, what that witness told someone else about the accident afterward? Is she not now giving someone an account of the accident? Psychologists agree that no one can accurately narrate their perceptions and what happens before their eyes. Moreover, the tests performed on school and college graduates in regard to their powers of observation have shown the fallibility of human perception. The failure to perceive, plus the failure to remember, plus inadequacy of language, makes all testimony unsatisfactory. People of little education are still less able to either see or explain. The only safe way is to obtain a composite photograph of the witness's mind and of the thoughts that arise from the original perception, a continuation of impressions. Judges or juries never determine cases by first deciding which witness is telling the truth or at least the exact truth. They take it for granted that both sides are lying somewhat; that no matter how well they mean and how hard they try, all witnesses are incapable of telling the exact truth. The unfortunate part of the law is that this is not officially recognized. There is a hypocrisy in not recognizing the inadequacy of human eyes and ears to grasp even simple concrete facts. A timidity exists that will not allow the admission of human imperfection. The proof of this is that when three witnesses go on the stand and describe a thing as having happened in the same way, immediately there is a strong doubt in the mind of the jury about the whole case. Suppose the question of the time a crime was committed arises and the defense tries to prove an alibi by showing the defendant was in a saloon at that time. There may have been three witnesses who really saw him at the same time. One witness comes on the stand and says 3:10, the next witness says he saw him at 3:10, and third says the same. The jury conclude that the story has been made up. Yet suppose the first witness says he saw him sometime after lunch, and the second that he remembers seeing the defendant in the saloon sometime that day, but he is not sure whether it was in the morning or the afternoon, and the third witness says that he saw him during the week, but that he does not remember the day, whether a Thursday or a Friday--it is probable that the defendant will have a much better chance of succeeding with his alibi. The lady in the car could not remember the time of the day, except that it was near the children's bed time. She had heard the crash and seen the wagon turn on to the car tracks. With a great many objections she finally gets to the point of the crash. "Did you see the car hit the wagon?" "I object to that as leading," says the other lawyer. "It is leading and suggestive." Technically he may be correct, but if the judge has common sense he overrules the objection. The proper question would be: "What happened next?" The witness, however, might remember the paper bag of oranges she was carrying to her grandchildren and instead of telling about the accident begin to describe how she dropped them on the floor. Leading questions are necessary in nearly every case. The reason that they are objectionable and ruled out is, that the judge and the jury ought to hear not the lawyer's narrative of the facts, but what the witness actually remembers. A witness on the stand appears at his worst. If any one from real life were suddenly thrust unprepared and unlearned in theatrical art upon a stage the incongruity of the situation would be appalling. Yet the witness is thrown into new and strange surroundings. It is a portion of the reality of life shown vividly against a conventionalized background. The judge and jury in a vague manner understand this. The lawyer producing the witness feels this and elicits the testimony in a soothing manner. The objects of cross-examination are as follows. The first is to prove that the story of the witness is not true, and the other is to bring out something new. The opposing counsel often forgets the purpose of his cross-examination and by attempting to bully and frighten the witness, usually either by sarcasm or a doubting manner, accomplishes very little. Not one cross-examination out of five hundred amounts to anything. The judge has heard many and he has little hope of their being of much interest. The jury make so much allowance for the witness being frightened on the stand and for the fact that she is in the hands of a clever lawyer, that they are not much impressed even if she contradicts herself or is proved mistaken. At best it is only a mistake, not a deliberate lie. The lawyer thinks he owes a moral obligation to his client and to himself to cross-examine. He is compelled to go on. There is a musty tradition of the law that a trial without cross-examination is not a proper trial. It is a legal fetish and one of the things that is done. The judge expects it, the jury expect it, the client expects it and the public. The client pays his money and he ought not to be disappointed. If it were omitted altogether, the judge and jury might not feel the loss so bitterly. Perhaps they might prefer it and the question for the lawyer is whether it is better to satisfy the client or the jury. In this quandary the lawyer may forget that the main point is to win the battle. When the case is lost the client does not care at all how brilliantly the lawyer looked, acted, or fought. If the lawyer reasons he will say: "If the object of my cross-examination is to show that the witness is not telling the truth, have I much chance of getting him to confess the fact?" The witness knows something about perjury. He is afraid and he has heard about those pitfalls of cross-examination. Does the lawyer remember his own hopeful son and how only yesterday he could not get him to admit stealing the cake even with the prospect of immediately impending punishment? Only that little rim of chocolate about the ears was the proof. Even the deaf little child, who is not as intelligent as the witness, will not admit that he was untruthful. But still he goes on cross-examining. If the witness is finally shown a paper which he or she signed when the investigator of the railroad came to see her, and in which she said she was sitting on the sixth seat, there is not such a great deal to be proud of. "Ha, Ha," thinks the lawyer "at last," "didn't you just now say you were sitting on the fourth seat?" "I don't remember," says the witness. "What," thunders the lawyer, "you don't remember; then your memory is poor. I will read you what you said on your direct examination," and he does. "Now which was it, the sixth or the fourth seat." The other object of cross-examination is to elicit new facts. This is a dangerous risk for the lawyer, and unless he is sure of his ground, he had better not take it. He will do better to let his own side tell the facts than to bring them out through an unwilling witness who is on his guard and thinking the opposing lawyer is trying to trap him. The mistake that most lawyers make in cross-examination is to ask the witness to repeat what he said in his direct testimony. Telling the same story over again merely accents the facts in the minds of the jury. The lawyer asks: "You say that you saw the driver whip up his horses when the car was a block away." The lawyer may doubt the truth of the statement but the mere repetition of the words affects the memory of the jury. Unless he has a distinct object in going over the testimony, either to show the direct contrary strongly, or the fact that the witness has learned the testimony by rote and that the repetition is in exactly the same words, the lawyer would do better to desist. Strange as it may seem the rules of evidence are actually based upon common sense. The ordinary experience of mankind gave rise to the rules of evidence, but the difficulty is that the further experience of civilization is giving rise to new rules which are not consistent with the old. Nevertheless the present rules when reasonably applied are fairly good. The question really is whether there should be any at all. Accepting the fact that there should be rules they are based on two principles; the first is that only something which has to do with a case can be proved and second that it can be proved only in a safe and reasonable way. It may seem impossible to the lawyer and equally to the laymen to state the rules of evidence in simple language. But the principles of common sense will govern in the end, as they have in the past, notwithstanding they have been hidden under a mass of verbiage, ancient forms, and obsolete customs. The theory is that justice wants the highest and best it can obtain, the court insists on the two principal rules; that evidence must be the very best that can be obtained and must be brought out in the safest, clearest, and most authentic manner. Take, for instance, the rule that conclusions of the witness are not allowed. If the court considered as evidence that the testimony "the defendant brought the goods and they were delivered," and the defendant came on the stand and said, "I did not buy the goods and they were not delivered," the court would have before it merely two contrary beliefs or conclusions. It would be a case of "Katy did, Katy didn't." The rule of evidence is plain that makes it necessary for the plaintiff to show where he saw the defendant, what was done, and what was said or written by the two parties. If the question is as to the delivery, it is not enough for the plaintiff to say "I delivered the goods." The court must have proof of the history of the goods. The driver of the wagon must be called who can testify where he drove, what package he carried, and what was done with it when he reached the house. The whole subject of expert witnesses is not so complicated after all. They are merely persons of exceptional experience who are allowed to testify as to something of which they know nothing. They may have never seen nor heard the facts in dispute but because they have had so much experience on similar facts they are allowed to say what they think of facts produced by eye witnesses before the court. As conclusions and opinions may be various, there is at times a great variety in experts, and because the very name of experts implies technicality, there is a feeling in the minds of the jury and the public, that the testimony of experts will befog by a mass of non-understandable terms. The doctor who testified in a case in which the plaintiff suffered a sore back and had seventy-five dollars damages from the jury is an example. He said: "The plaintiff was suffering from traumatic sacro-illiac disease, traumatic sinovitis of the knee and wrist and from traumatic myositis of the muscles of the back." In reality the testimony of expert witnesses is very good evidence. If it is given in plain and understandable English and the jury think the expert a clean-cut, sensible man, it is just what the jury want to learn. An expert's method of reasoning about the facts in evidence is the same as that employed by the jury in the jury-room. It is merely an opinion; for on the opinion of the jury, based on the evidence depends their verdict. While the witnesses are being examined, called to the stand, sworn, being excused, and being cross-examined, there occur numberless incidents of the trial known as the objections, exceptions, and motions. XI THOSE TECHNICAL OBJECTIONS These are the stage tricks and little incidents that give variety to the performance. No drama would be complete without a few diversions. So far as the drama itself goes, they are of no great importance except to give pungency and interest to the action. The lawyer asks an apparently good question. "I object," says the other lawyer, "on the ground that it is incompetent, irrelevant, and immaterial." The judge has to rule. He may not exactly have heard the question. The stenographer reads it again. The other lawyer leans forward in a frenzy of fear lest the question be ruled out. He begins to argue. "The question is perfectly proper; the witness ought to be permitted to answer it." "No," says the other lawyer, "it is improper in form, calls for a conclusion, and should not be allowed." The judge looks puzzled. "Read that again," he says. The question is, "What kind of a cow was it you saw in the plaintiff's garden?" "I still object," says the lawyer. "The witness has not been shown to be an expert. If my learned friend is going to attempt to qualify him as an expert, I desire an opportunity to cross-examine him concerning his experience in cows." "Not at all," answers the lawyer. "The question is entirely proper and I stand on my legal rights." The judge hesitates; if he does not rule correctly the lawyer will take an exception and the Appellate Court may not like it. So he says, turning to the witness, "You may answer, but I will reserve the question and decide it later on a motion to strike out." "I except," says the lawyer. The jury look relieved. The witness straightens up, the opposing lawyer sits back in disgusted contempt at such a loose method of procedure. "Well," says the witness, "it was a red cow." This may go on for some time. "I move to strike the answer out," says the lawyer; and the argument begins all over again. Throughout the trial the client and the jury are waiting for these objections and exceptions. The nature of an exception is a notice served on the judge that his rulings are wrong. The theory is that if he wants to change them he had better do so before the case goes to appeal. It is a covert threat to the judge. There is a principle in some courts that no ruling that is not excepted to can be considered on appeal; consequently a lawyer is careful to preserve his rights by exceptions. A young lawyer once had this principle so firmly fixed in his mind that when he went to court he began taking exceptions to everything, even rulings in his favor. He would make an objection; the judge would sustain it. "I except," said the lawyer. He would make a motion; the judge would grant it. "I except," said the young lawyer. The other side would make an objection; the judge would rule against them and in favor of the lawyer, "I except," said the lawyer. Finally the situation grew so strained that the judge called the young man to the bench and spoke to him confidentially. His explanation was: "This is my first case and the head of my firm told me to be sure and take exceptions to all rulings." Some lawyers are so in the habit of excepting, it sounds as though they were hiccoughing. "Overruled"; "I except"; "Allowed"; "I except"; "Denied"; "I except"; "Granted"; "I except." It becomes a custom as constant as the refrain in a comic opera. Theoretically it may have a sound basis under the law, but so little practical value has it that it seems ludicrous. The lawyers and the judges consider it a matter of course. If the judge after all the argument finally decides to let the testimony as to the red cow stand, he will not be inclined to change his mind because the lawyer interjects that threatening exception. The sound of the word is spiteful and seems to express the resentment of the lawyer at the ruling of the judge. No example could be found in the thousand volumes of law reports where the judge changes his mind on account of an exception. The object in this particular direction is vain. With regard to appeal; the Appellate Court that attempts to decide a case on the exceptions taken at the trial would have a difficult time. They would have to disentangle the mesh of evidence and find out whether that important piece of testimony on page 204 was excepted to or not, then whether there was a proper ruling; refer to the stenographer's minutes and look at the important exception on page 59 and again on page 106. Unless the question decided was excepted to, the Appellate Court can not decide it. It is hard to imagine that any court could be so rigorous and narrow-minded that they could hang justice on such little pegs of exceptions, which the stenographer in the hurry of the moment may have forgotten to insert. In the criminal courts there are no exceptions on the part of the people, because there are no appeals on behalf of the State. The defendant continues to repeat "I respectfully except." "I must insist on my exception." Think of a man being jailed for seventeen years because his case was not reversed on account of the failure to except. The court could not believe Justice to be so blind-folded that she can not understand the evidence as a whole. Exceptions are the tacks and pin pricks of a trial. They are of so little value in the main structure of the drama that if they are forgotten by either side, the court should provide them with a bushel basketful which could be distributed by the handful wherever the lawyers thought they would be useful or pleasant. Objections are of three main kinds: irrelevant, immaterial, and incompetent. They are like the magic words that open or unlock the doors of evidence and let it in or keep it out. They have three distinct meanings which lawyers understand. A thing may be immaterial, but not incompetent, or incompetent and not immaterial, or irrelevant and not immaterial, or irrelevant and not incompetent, or incompetent and not irrelevant, or one or both or not at all. Any student of law can fully explain the difference, but the distinction is immaterial and irrelevant, and if the reader is in doubt let him ask any lawyer friend to tell him in plain words, without insulting his common sense, what the distinction between immaterial and irrelevant is. The confusion of one young man found expression finally in the terms "irreverent, impertinent, and--and--and--no--matter." The lawyer, when he objects, usually attempts a few other suggestions which may be considered by the judge, such as "the question is leading and suggestive; grossly improper; calling for a conclusion; objected to as argumentative or because of its ambiguity." Whatever the trouble with objections may be, it is neither the fault of the lawyer, the judge, nor the witness. When certain evidence is not allowed by law it is proper that it be objected to. Unreasonable and often comical as objections sound, the basis of their existence in law is that the court wants the best possible proof. Instead of a copy of a letter the judge and the jury ought to see the original. Instead of the copy of a will the paper actually signed by the testator is wanted. Suppose a question arises as to the payment of a bill. The defendant says that he went into the store and paid it. The best proof is to be given by someone who saw him pay it. A witness to whom he came afterward and said that he had been down to the store and had paid the bill is not so accurate a witness as the man who was in the store and saw the money paid over. It is to keep out this poorer proof that objections are made. If the objection is good, the judge says "Objection sustained," or if he thinks the evidence the best he allows it and says "Objection overruled," then the witness may proceed and answer the question. Unless the lawyer objecting states the ground or reasons for his objection, the objection is not supposed to be valid for the other side ought to be apprised of the reason so that he may supply the proper proof, that is why the objection is named as irrelevant, incompetent, and immaterial, so as to cover all possible grounds. The reasons given for the objections: incompetent, irrelevant, and immaterial might, so far as the average man is concerned, read "incontepent," "irrevelant," and "immature." The words when repeated together seem like that old legal term "incorporeal hereditaments." They are imposing and add tone to the trial. The solemnity of repetition is always a valuable asset. The real value of the word irrelevant is shown by repeating irrelevant, "irrevelant," irrelevant, "irrevelant." In a short time one sounds as valuable as the other. When he makes the objection the lawyer rises and when he is through sits down. This gives the appearance of constantly jumping up but is only a question of etiquette, like taking off the hat or making a bow. Some people like the formality but there is a question how much is due to the dignity of a court and how much form and manners must be sacrificed to efficiency of business. The judge who said that he did not hear the constant objections of the lawyer because he made his objections sitting down was not so much an adherent of good form as a protestor against the absurdity of professional objections. The mooted question is the same and goes back to the one on evidence. Shall everything be allowed in and a photographic picture of numerous details be given to the court? If that is the correct idea, a general knowledge and atmosphere may be derived from all the surrounding circumstances and then there would be no objections. If the strict interpretation of the law be followed limiting evidence to only what is seen and heard, objections are proper and sensible. The modern tendency is to do away with all restrictions of the past. There has been too great severity in interpreting the law of proof and the pendulum is bound to swing far in the opposite direction. A medium may not easily be reached, and the only test is the common sense of the average. On the question of time and whether the abolishing objections and letting in all evidence would not be shorter, there is much to be said. It might take less time for the witness to recount the death-bed scene of his wife's sister's brother-in-law's aunt, than for the court to hear and pass upon all the objections and arguments as to the admission of the testimony on the red cow. As the jury listen to the objections and exceptions they become more and more impatient. The restraining influence of the surroundings, the fact that they are impaneled in a box and that they are a part of, the drama keeps them silent. They cannot break out in revolt at the badgering of the witness. They can say nothing about the absurd objections that are interrupting the proceedings or the spiteful little exceptions that are being thrown in, but can only quietly store up an increasing mistrust of the whole method. When the lawyer objects so strenuously the jury thinks he must have something to conceal. Yet when the objections are made they have a certain effect which is not at first realized. A question is asked that is to the juryman perfectly sensible, but which is absolutely inadmissable under the rules of evidence. For example, the lawyer asks, "What did you tell your wife about the accident when you got home?" Any reasonable man knows that what he tells his wife is very important and bears on the question of his veracity. The other lawyer very properly objects. The jury thinks there must be something in it. The lawyer asks again, "Didn't you tell your wife the horses were going very fast?" The other lawyer is on his feet. "I object," he says, "and I must ask your Honor to instruct the counsel not to ask questions that are manifestly improper." The Court rules in favor of the objecting lawyer. He admonishes the lawyer and instructs the jury to disregard the question. Yet what is the effect? The jury believes unless the lawyer thought the answer would be most unfavorable to his side he would not have objected to it so strenuously. The impression remains on the minds of the jury that there was a good deal to that question of what he told his wife. It is for this reason that when the lawyer keeps on asking objectionable questions, the judge will sometimes declare a mistrial or allow one side to withdraw a juror, which is only a polite way of saying that the present jury in the particular case can not be fair. Here arises one of the prettiest dilemmas of the law on the trial of a case. Suppose the case has been going on all day or for several days. The plaintiff is very anxious to have it finished. He has been at great expense and trouble to get his witness and the lawyers' time is valued at so much per trial day. On the other hand the defendant at the worst can only have a judgment against him, which may as well happen at another time. He is willing to have the case declared a mistrial and start anew; he knows it will take a long time for the trial to come up again. It has been a dull grilling proceeding, but he does not care so long as there is a chance of postponing the judgment against him. It is on the whole better and easier to put it off. Now if the judge declares a mistrial, on the motion of the plaintiff, that is his own look out. He believes that he can not have a fair trial, that he can not proceed. But suppose the defendant by his lawyer makes the trial unfair. His lawyer keeps asking those improper questions which imply so much to the minds of the jury. The judge may speak severely to the lawyer and caution him not to keep on putting suggestive questions. That is all that he can do. It would be plainly unfair to order the withdrawal of a juror. The trial according to the opinion of the judge may be unfair. The plaintiff's counsel is afraid to ask for a mistrial, first on account of the trouble and expense to his client, and second, if it be denied, the jury will believe he thinks them unfair and does not want them to try the case. The judge is in a curious position with regard to objectionable questions and testimony, he ought not to penalize the plaintiff by punishing the defendant. The loosening of the laws of evidence might do away with quandaries such as these. XII THE MOVEMENTS IN COURT Motions imply movement and action especially in a drama, but in a court motions are the reverse and occupy the place of dramatic pauses which delay the real movement of the play. They are of great interest to the lawyers, of some interest to the judge, because he has at once to pass upon them, of but little interest to the client, who does not understand them, and of no interest whatsoever to the jury, except when they result in the disposal of a trial. Before the case begins the defendant makes a motion. When the plaintiff's lawyer has finished his opening, the other side makes a motion to dismiss the case. When he ends his evidence, the other lawyer moves to dismiss. When both sides are through, each moves. When the jury bring in the verdict either side may move, or both when neither is satisfied. All through the trial there are quantities of little motions. Motions to strike out, motions to instruct, motions to make the witness answer a question, motions to make the other lawyer behave. Except for pointing the finger or raising the voice in talking, they are not movements, they are only verbal, the action comes in the play of emotions of the parties in court. Motions are merely saying what either side wants; the formal asking for something. The first important motion is on the pleadings themselves or when the plaintiff has opened. If the judge does not believe that the plaintiff has stated a case in law, he dismisses it on a motion of the defendant and the judgment is "without prejudice." The trouble is that a judgment of this kind does not finally dispose of the dispute. The plaintiff may bring the action over again. He may appeal from the decision or judgment and the appellate court may rule that the trial judge was wrong and then after an interval the case goes to a new trial just the same. By this time the plaintiff or his lawyer may believe he has no case and desists, but the course depends upon whether the parties have not died, grown tired, gone into the hands of a receiver, or moved to Borneo. The jury know little as to this state of affairs and are not interested in the preliminary motions. The clients do not understand but think the lawyers are good talkers. The lawyers are interested in the point of law and believe so strongly in their case that if an adverse ruling comes they are shocked and surprised. The judge knows that although he grant the motion to dismiss, he will probably allow an amendment. He is not greatly concerned unless he foresees a possibility of settling the dispute definitely and going on to the next case. He is anxious to try the present action and get down to the meat of the matter but really if they are going to insist on all technicalities he feels a little impatient. He knows that even if the defendant is right and the pleadings are defective because the stenographer forgot to insert a date, it can still be put in. Recent legislation has found it necessary to say that the courts should allow amendments of pleadings where "Substantial Justice" will be accomplished thereby. It is a commentary on the system of the courts that the people through its legislatures should find it necessary to pass a law that judges should amend paper pleadings in furtherance of justice. If justice and right depend upon pieces of paper to such an extent, the dry formalism of the courts is a matter of regret. The next important motion is when the plaintiff has put in his evidence and has rested. "The plaintiff rests," the lawyer says. The judge and the jury say to themselves, "Well it is half over." The defendant's lawyer rises and says, "I move to dismiss on the ground that the plaintiff has not made out a cause of action. He has not shown that the cow was owned by the defendant, or he has not shown that the driver of the plaintiff was free from contributory negligence, or he has not made out any kind of case at all." This is an anxious moment for the young attorney. Did he forget something? What was there that he did not remember? Will the case be dismissed because he forgot to tie a shoe lace or put in a pin? If he is more experienced in court work he will not be so worried. The law is that the plaintiff must be given every chance at this stage of the proceeding. Only when both sides are through does the law begin to weigh the evidence. At the close of the plaintiff's case everything is in his favor. Any particle of testimony is sufficient on a particular point. The theory of the law is that both sides must be heard. If the motion to dismiss is made on the ground that something has been left out, the court will usually give an opportunity to prove to whom the red cow belonged. This motion like many other relics of a by-gone age, is a matter of custom and tradition. It is usually made on the theory that the judge may think there is no case and that the plaintiff can not make out a case. If he so decides, the case is finished, the jury is discharged, and the client has his feelings hurt by being thrown out of court. From a decision of this kind there is also a right of appeal which may result in a reversal. Then the new jury is impanelled, the witnesses are recalled, and the proceedings are gone over once more. If the decision or judgment is affirmed, the case does not usually come up again; the higher court has said the plaintiff has no case on the evidence, and unless new evidence is produced he can never recover. In certain accident cases the appellate courts have stated they would not give their reasons for dismissing the complaint after the evidence is all in because, they say, if they did so they were afraid the plaintiff would supply the missing links by manufactured evidence on the next trial and not quite honestly. This again is a commentary on procedure. Just at this point is where the law of the case comes in so insistently. Before the case comes to court the lawyer is supposed to know whether his client has a right of action. Every state of facts or a breach of those rights does not give rise to an action that can be maintained in a court of law. If you ask a man to dinner and he accepts, but does not come, you can not recover your damages for providing the dinner; or if you fall down your own well, you can not sue the man who built it. The lawyer is supposed to have carefully considered what elements of fact make an action. If the facts themselves do not give him a right of recovery his case is dismissed; or if he has a cause of action but has not proven the facts, it is also dismissed. But as was said above, if the train of facts or those in the pleading is imperfect, the modern spirit is to allow them to be made perfect. The only theory of law that is contrary to this spirit is what is known as the theory that every man is entitled to his day in court and the day being had it is unfair to bring the other side in again on account of some defect or forgetfulness on the part of the other. The reconciliation is that there should be no surprises on a trial, the modern tendency is to bring the case away from the idea of an ordeal by battle. The little advantages that are gained by sorties and surprises and which are usually taken advantage of by motion, are after all not of great moment. An anomalous situation shows the absurdity of these motions, for when the plaintiff rests, unless the defendant makes a motion to dismiss the plaintiff's case, he is supposed to admit that the plaintiff has made a good _prima facie_ case, and if he does not move he is forever after, on appeal or otherwise, prevented from claiming that the plaintiff did not make out a good case. The result is that at the close of the plaintiff's case the motion is usually made as a matter of form to preserve the defendant's right. Usually this motion is denied if there is a possibility of making a case, but suppose the judge either through ignorance or to be obliging should say, "Well, the plaintiff has made out a good case, but if you ask it, the blood be upon your own shoulders, and I will dismiss the case." The defendant does not want it dismissed but he has asked for it and he has got what he asked for. The result is an anomalous situation. The case will undoubtedly be reversed and he will be mulcted in costs for being compelled to ask, because of the formalism of the court procedure, for what he did not want. At the end of the defendant's case, when both sides have rested, the defendant again moves to dismiss. Here again it is a formal motion, which he may not altogether mean, but which the lawyer often makes as a matter of form. If the judge really believes there is not enough evidence to let the case go to the jury, he ought to say so without the necessity of a motion. Suppose there is not, he dismisses the case "on the merits" and the trial is over. But suppose there is and the judge does not know his business and the fine point of law is not entirely clear to his Honor, and he makes a mistake and the case is dismissed. The result is that although he has granted the motion of the defendant to dismiss and given the defendant what he wanted, he has in reality penalized him, for the appellate court will reverse his decision and the defendant have to pay all costs and stand the expense of a new trial. The judge is in a quandary, which he may get out of in two ways. One is to let the weak case of the plaintiff go to the jury with the hope that they will see what a poor showing the plaintiff has made and find a verdict for the defendant, in which event he will be safe. But if the jury should make a mistake and find for the plaintiff, then the judge has the intention of setting that verdict aside, nullifying all the work of the jury, the witnesses, the clients, and the lawyers, and ordering a new trial. This is rather a weak-minded proceeding and shows the necessity of having a man in the referee's chair who knows how to decide. The second alternative for the judge is to reserve decision on the motion and to let the jury go into the jury-room and worry about the verdict for an hour or two, while the judge has the hidden intention of perhaps deciding that they need not spend any time at all about the matter. The principle on which the judge passes on this motion to dismiss is, that after all the case is in and all proof had, that on the proof and evidence there is not enough on the part of the plaintiff from which any reasonable man could ever find a verdict for him. The motion differs from the one at the close of the plaintiff's case in that the latter is based on there being no proof at all, while the one after the case is entirely in is based on the theory that there is no possibility of a verdict. This sounds again like a metaphysical discussion, but is illustrative of the futility of formal motions, so that actually the decision depends upon the good plain common sense of the judge. The tendency is that if the case has gone to the length of a full trial and there is any question of fact involved, that the jury should determine the question of fact and exercise their functions. It must be a poor weak case of the plaintiff and evidently unsound, in which the judge or the appellate court interferes. Throughout the trial the little motions that occur bear the same relation to the main issue as do the objections and exceptions. "I tried to stop the car," says the motorman. Up jumps the other lawyer. "I move to strike out as a conclusion." The witnesses have testified to slightly different facts than what were stated in the pleadings. "I move to amend the pleadings to conform to the proof," says the lawyer. "I move for an adjournment on the ground of surprise," says the other. Of course the statement of the conductor is a conclusion of fact. But if the other side wants to find out how he tried to stop the car, let him ask what was done. "Did he turn on the brake handle? Did he switch on the emergency?" A man does not have to be an expert to say that the car was going fast; he may be examined as to what he considers to be fast. Nor does he have to be an expert to say that eggs are rotten, that butter is rancid, that there has been a war in Europe, that a man has a broken leg or looks sick or acts queerly, that the fish is stale or the cow was red. The motion to strike out does not affect the jury, the testimony still remains on the jurors' minds. The verbal memory stays. Neither does the motion to amend the pleadings affect the jury. What have they got to do with it? If the papers are amended it is not important from their standpoint. Should the plaintiff have written a letter that he was going to sue for something, to the jury that seems better than any pleading. These motions are insignificant and examples of a formalism which, however valuable it may be as defining the methods of the legal battle, are not consistent with the modern spirit of investigation into facts. It is rather significant that the laws creating Public Service Commissions and Legislative Investigation Committees in some States go to the length of stating that there shall not be any rules of evidence such as are employed in the courts of law. The other motions, such as to direct a verdict, which is usually the same as a motion to dismiss, and the motions after a verdict has been rendered, are also formal statements of a request for the disposition of the case. They may be all very good and useful in their way, but are merely the incidents and measures by which the truth of the matter is reached. The client looks puzzled at the argument and the decision, the jurors have a not very clear conception of what is going on, the lawyers have a meretricious feeling that perhaps they are cheapening themselves a little by making so many motions, yet they, nevertheless, have a legal right to do so and they must take advantage of every legal right for the protection of their clients. After all the witnesses have been called, the plaintiff and the defendant have proved their sides, the plaintiff has contradicted the new evidence of the defendant, everybody has been examined, the interruptions of the objections and motions, exceptions have been had, the judge asks if both sides are through and the presentation of the case is ended. The course of justice has been on a rough and rather narrow road. The popular revolt at the method of arriving at the truth is, in fact, at the narrowness of the way. The presentation of a case and the means of reaching the truth ought to be on a well-defined and orderly system. It would seem natural that the crooked and ill-paved streets of an old town should give place to the open, smooth, and broad avenues of the modern spirit. XIII ELOCUTION At last when both sides rest and the judge has passed on the latest motions, the intense action of the drama begins. For this the clients have been waiting, the lawyers have been training. It is the opportunity for them to display their attainments, to show their clients what brilliant lawyers they have retained; to let the judge know how well they have understood the case; to move and sway the jury to their side; to unravel the mysteries and by the power of oratory to bring justice where she belongs. When his lawyer is talking, the client watches him with admiration, but while the opposing lawyer speaks the client can hardly conceal his contempt. He feels that his case is secure and he does not understand how there can be anything to be said on the other side. Yet he is fearful there may be some court trick which he does not understand and the case may be lost. "Your Honor and gentlemen of the jury," begins the defendant's lawyer. Including the judge in his address, although it is a matter of courtesy for the eloquence of the summing up, is meant solely for the jury. The judge is only supposed to listen and restrain the attorneys if they go too far afield in their attempts to influence the jury by their efforts. The judge is the time keeper or referee and holds the lawyers to the point. The object of the attack is the jury. As the burden of proving a case is on the plaintiff, he is supposed to have the first and the last word; therefore, the defendant begins to sum up. After he is through, it is the turn of the plaintiff. The tactical position is in favor of the plaintiff. The advantage, as in all verbal disputes, is reputedly with the man who has the last word. In all debates the proponent has the right of opening and closing. The plaintiff began the case with his opening, and after it is over he is permitted to close. "Gentlemen," says the judge, "how long will you take in your address?" Both sides agree upon a certain time, which usually proves too short, but which is acquiesced in with alacrity because each side thinks their case is so plain and convincing that it will not be difficult to explain. The lawyer girds up his loins, the court-room quiets, the struggle of conflicting evidence is over, the clients and witnesses retire from the foreground, the other counsel sits down and the lawyer steps close to the jury-box. "The jury is yours," says the judge, as though he were abandoning the jury. Indeed the summing up is an attack, a vivid, keen, masterly struggle in which wit and brain is pitted against wit and brain: where facts and passions are to be marshalled in the most intelligent and plausible way, where imagination and oratory are to be employed in their finest capacities. It may be bold, manly, energetic, or soft and persuasive; it may appeal to sympathy or threaten with a battery of accumulated facts. Forensic oratory is the highest type of art, the most powerful of human gifts. The only trouble with most court oratory is that it is only fit for the market-place. The lawyer begins with the firm impression that he must win the jury. His voice is bland and soothing, he feels that he must be soft and persuasive. He rubs his hands and remembering the old adage, that laugh and the world laughs with you, attempts a little joke. There is nothing so good as to get a smile for his side. Perhaps the joke does not go very well and the laugh does not come; the point has missed. He will try what flattery can do. "Men of your intelligence can readily see," he says. "When I was examining you," he explains in a subtle way. "I knew at once how unprejudiced and fair-minded you were." "You gentlemen are practical men and can understand." Yet somehow the jury are impervious. They sit back in their chairs and stare. Then the lawyer begins to forget the object of ingratiating himself. Hypnotized by the memory of his client's wrongs, he works himself into a frenzy of feeling. He swings his arms, pounds with his fist, raises his voice, and thunders his denunciation. His speech takes on a threatening tone. He shouts and bawls; the jury must be waked up. They sit stolid and unmoved. He tries to catch their eye, there is no gleam of interest. Perhaps he has rather a hopeless feeling that the art of oratory is not what it is reputed to be. The jury look particularly unresponsive. Even that one little juror, with the clever, smart face, who is leaning forward with such an expression of enjoyment may not be altogether trustworthy. The lawyer has seen that kind before and the one juror who seemed the most interested in the last case he argued was the very one who held out against him in the jury-room as he found afterwards. It seems a difficult matter to stir the jury and the men in the box are not at all a warm or enthusiastic audience. The jury are not particularly keen about the oratory of the lawyer, they look upon him as paid to do his part. It is the portion of the trial they can understand; they have not clearly comprehended what went before. When the objections were being made and there were the cross-examination and badgering of witnesses, they could not separate in their minds the functions of the lawyer and the personality of the lawyer. It seemed as though he were doing a good many unfair things and not acting quite up to the mark, but now the atmosphere has cleared. They can realize that he is only the paid talker for his client, that he is only making all this noise because that is his business. To the jury he is the pleader employed as an actor. The position is simple; if any one would pay them for acting and gesticulating at so much per day or per hour, they would be very glad to earn the money. The client watches the lawyer with affectionate admiration. True, he did not do exactly as he was wanted during the trial. He should have asked those questions he suggested, but now he is doing grandly. When the lawyer is through the client feels splendidly. He sees but one side of the case and believes in it absolutely. With such a good talker the jury cannot fail of being convinced. When the lawyer sits down the client shakes him by the hand and tells him how well he has done. He might have been willing to settle the case for a thousand dollars before, but now he wouldn't pay a cent, not one cent. Later, should the jury find against him, even to the amount of the thousand dollars which he was willing to pay, he feels terribly disappointed. There must have been something very much amiss in the jury-room. The judge while the summing up is going on, is not very attentive. His part of the case is over. While the proof was being given he was alert. True, the charge is coming afterwards, but he knows fairly well what he is going to say, and it is going to be formal. It is the function of the judge to control the address of counsel, but the counsel are sometimes very hard to control. In the criminal trials, reference is made to the emotions of the defendant's family; the devoted, anxious wife, the poor little children who may bear the stigma of their father's disgrace, should the verdict go against him. Since the domestic life of neither party to the trial has appeared in evidence, such things being entirely "irrelevant and immaterial," it does not make a great deal of difference whether the picture is accurate or wholly fanciful. The defendant may be a drunkard, a burden to his wife, and a horror to his children; he may have abandoned his family to their own resources; it is possible that he has never had any family at all. The lawyer has no right to refer in his summing up, or otherwise, to anything that has not been properly submitted in evidence. He is guilty of unfair practice in telling the jury about the defendant's family or circumstances, unless this has been part of the case, which is improbable. He knows this well; so does his opponent and the judge. And should the opposing lawyer protest, the judge will say, looking up, "Be careful, counselor, be careful." The counselor bows respectfully and probably goes on in the same vein. The judge has not heard exactly what was said and feels that the lawyers, if they are not too blatant and noisy, may say what they please. There must not be too much talk about the wicked, money-grabbing, soulless corporation, not too much appeal for the down-trodden poor, nor an over indulgence in personalities. The lawyers must not call the other side liars and thieves too openly. That is, they may say they are untruthful, but liar is too strong. The denunciation must be a little restrained. The judge throws out a rather mild admonition. "The counsellor must keep to the evidence. You may not refer to matters which are not before the court." The lawyer says, "Yes, your Honor." The judge withdraws again into a contemplation of the high cost of living and his diminishing bank balance. The shouting and vociferation grow louder. The jury are long-suffering, but they cannot object. The other lawyer jumps up, and after an insistent effort makes himself heard. "The witness did not say that; you are stating something that is not so. I ask to have the stenographer read the minutes." The stenographer begins turning over the pages of his stenographic book. The exact testimony of the lady in the car is hard to find. "Heavens," think the jury, "are we going to have the whole case over again?" The lawyer who is talking complains, "If my friend is going to keep on with his objections I shall never get through in my fifteen minutes." The stenographer has not been able to find the exact spot. It is apparently not in the testimony. Then the lawyer objecting says, "I ask your Honor to instruct the jury to disregard the statement of counsel." The lawyer must have a sarcastic vein of humor. Such an instruction does not seem necessary. The judge says, "I will cover that in my charge, but I must ask the counsel to be careful," and he looks warningly at the clock. Finally the hands point to the agreed time. The judge says, "Your time is up, counselor." "Just one minute more," says the lawyer and then he goes on for three. The judge raps on his desk. The lawyer winds up his speech in a hurried peroration. "Therefore, gentlemen, with the utmost confidence in your ability as men of experience and affairs, with the sure belief in the justness of my defense, I leave the matter in your hands." The plaintiff's lawyer now takes the floor, the jury shift their feet and glance at the clock. "Gentlemen of the jury," he begins. He probably leaves out the judge. The plaintiff now having the attack is more direct. It is rather significant of the change in all procedure that the language of all court addresses is becoming more and more simple. The old days when the lawyers delivered homilies of Latin have disappeared. No longer does the lawyer refer to _nunc pro tunc_, or make facetious jokes in a language the layman and probably the court does not understand. If a lawyer makes too many Latin quotations, the court thinks him affected. He must be simple, direct, and to the point at issue. His art in presenting his case consists in drawing the picture of the facts so vividly that they will remain in the jurors' minds. Employing his imagination in forming the concept, he gets it across the rail to the jury by the fine gift of selecting words and incidents. No one, it is said, is ever convinced by argument, but any one can realize a visualized picture of words. The counsel starts to storm and abuse his opponents and his opponents' client, and in his wrath also forgetting that persuasion is not accomplished by denunciation. The majority of the jury are rather easy-going, kindly men, who do not care to hear others made too vile. Just as satire is more effective than direct abuse the tolerant juryman prefers to have the other party laughed at than called names. The clients become worked up over their wrongs and excited by their lawyers' oratory. When the case is over they are extremely surprised to see the men who have been shaking their fists and ready to spring at one another's throats, quietly lock arms and go out to lunch together. It is all in the day's work and they must fortify themselves for the next trial. The shock is something like that when, after a melodrama, the heroine having jumped over the bridge and died in a whirlpool, comes out quietly and, in spite of her suffering, bows smilingly before the curtain. The judge and the jury know that the lawyers are coming to life again and are not really trying to kill each other. This is one of the pleasantest aspects of the life in court. There is a good fellowship between the two lawyers who have been so keenly struggling. They even have a kindly feeling toward the judge when he is off the bench. The court attendant calls the attention of the lawyer to the time, who with a sidelong look at the clock, also "Confidently leaves the case in your hands, gentlemen." The two lawyers sit down and the judge puts on his spectacles, gathers up the notes he has been making of the main points of the trial, and turning to the jury begins his charge. XIV THE HEAVY CHARGE No, madam, the charge of the judge does not mean his bill for expenses or his salary for trying the case. A charge implies something grave, heavy, and aggressive. It is what the judge tells the jury about the case. It is never light or humorous, but ponderous and hard to understand. The court-room doors are locked, no one must come in or go out during the charge. The judge looks solemnly at the jury, the jury straighten up from the desponding attitude they gradually have assumed during the address of counsel. The end is near and they begin to have hope. They appear interested and a gleam of awakened intelligence is in their eyes. Now at least they are going to hear what they wanted to know about the case. The judge will probably tell them something new and clear up the points they did not understand. It may be even he will explain why he made those strange rulings during the trial and what that mysterious conference was when he called the lawyers to his desk and they talked together for so long. The judge begins: "Gentlemen of the jury, the plaintiff in this case seeks to recover," and then he goes on to tell them what the plaintiff wants, which is just what the plaintiff's lawyer has been telling them. The judge must have been asleep while he was talking for he is saying the same thing over again, only in a little different language. After that the defendant's case is set forth. There again that is what the defendant's lawyer was saying. It does not appear reasonable that they are compelled to hear six times what the case is about. There were the two openings of counsel at the beginning, the two summing up at the end, and now the two explanations of the judge. There ought to be an allowance made for the jury possessing a little intelligence. The judge then tells again what the witnesses have said, in not quite so many words, but covering the main points. There is no use in that. The jurymen think they ought to remember fairly well what was said. The judge admits it after he is through by saying himself: "Gentlemen, you are to be governed by your own recollection of the testimony rather than by what is said by either side in summing up or by the Court." If he means that he should have kept still and let them have their own recollection. Then he goes on: "If you believe any witness has wilfully testified falsely as to a material fact, you may disregard that witness's whole testimony." Of course, is that not the reason for their being there? Why, the judge in the beginning made them swear to decide the case "according to the evidence." The jury is going to do exactly that. They are going to decide which side is lying and which side is telling the truth. They are not quite so stupid as not to know that. There seems no need in insulting them by telling them that they need not believe a witness unless they want to. Why are they there? The judge tells them that the function of the jury is to decide the facts and for him to decide the law. That is fortunate, for they could not understand the law, even if they wanted to; it is a silly business and it is not common sense. What the jury feels is that the judge's charge is leaving it to them without any trouble about the law. But wait a moment, the judge is going on to tell them about the law as applied to the particular facts before them. The important principle of law they are being told is what is known as the preponderance of evidence and the burden of proof. The judge goes on at great length about the weight of evidence. The weight of evidence, he says, is the preponderance of proof and the preponderance of evidence is the weight of evidence, and the man who has the burden of proof must have the weight of evidence and the weight of evidence being the preponderance of evidence is also upon the man who has the burden of proof. And the preponderance of evidence does not mean proof beyond a reasonable doubt, as in criminal actions, but that the proof must be heavier on one side than the other and the one who has the burden of proof must sustain the preponderance of evidence. That is the law; the judge has said it. What it means the jury give up. The lawyers nod their heads wisely. The judge has stated the law correctly. The judge may go on a little further and tell them more about the burden of proof and the preponderance of evidence. He may say that the weight of evidence does not mean the number of witnesses. The mere fact that one side has six and the other side only two does not mean that the jury are to believe the side who has six. The jury know that when probably they are all exaggerating somewhat they are going to decide the way the thing happened. Then the judge tells them, having seen the witnesses, "That they may consider their bearing on the stand and their manner of giving testimony." Surely they are going to do that. Is not the best way of knowing whether a man is telling the truth to look at him and watch him while he is talking? There is little sense in the judge advising them to consider his bearing on the stand. Another thing the judge says is that they are not to be governed by sympathy or prejudice in arriving at their verdict. This is a caution that the judge thinks necessary. He forgets that when they are in the jury-room, with locked doors and no one to disturb them, they are going to do exactly as they are inclined. Prejudice and sympathy are for unintelligent people who do not know what they are about. Both lawyers have been telling the jury what intelligent men they were and it seems unnecessary for the judge to say that they are not to be governed by prejudice and sympathy. Suppose the defendant is a rich corporation, they are not going to find against it because it is rich. The company can stand the loss of a few dollars out of its pocket better than the poor man anyway. Not that they are going to decide for that reason. As these accumulating evidences of the judge's misunderstanding of their attitude of mind pile up, the jury sink back into their seats. After all, the charge of the judge is not more understandable than most of the other parts of the trial. The saving point about it is that the end is drawing near and they can soon get away and have a smoke in the jury-room, and afterwards go home. The judge, while he is charging, understands a little of what has been going on in the jury's mind. He has seen the gleam of interest which was in the jury's eyes at the beginning gradually die out. He notices how they fall into resigned attitudes. He has a glimmering that the good old legal aphorisms which he has been enunciating with such care about the burden of proof, the weight of evidence, the credibility of witnesses and the caution about sympathy and prejudice, are not very convincing to the jury. But the conventions require that he must go on. "Gentlemen," he says, "I must instruct you to eliminate from your minds any discussion of counsel upon questions of law or rulings of the court upon the rejections of testimony, or decisions upon motions to dismiss or direct. They involve matters of law with which you are not at present concerned. In arriving at your verdict you are to consider only the evidence." Perhaps the judge feels a trifle foolish and therefore he becomes more emphatic and solemn. He carefully and in a painstaking manner defines the law of negligence. He tells them the law of negligence involves two cardinal principles. "The first is that the plaintiff must establish that the defendant by its employees was guilty of negligence, that he failed to act as a prudent and careful man; second, that the plaintiff must have shown himself free from contributory negligence; that unless the jury find both of these, that the plaintiff cannot recover." Then perhaps he interjects a little more about the balance of proof as to these particulars. "If the jury find the plaintiff was negligent and the defendant was negligent, they must find a verdict for the defendant. If they find the plaintiff was not negligent and the defendant was negligent, then they may find a verdict for the plaintiff, provided they find, etc., etc. Otherwise should they find the plaintiff was not negligent and the accident happened not through the negligence of the defendant, then again must they find for the defendant, or again--" but the jury by this time is exhausted. The alternatives do not interest them. The judge may know what he is talking about, but they do not. The interesting question is how much are they going to give the plaintiff. The judge finally becomes worn out, a kind of self-hypnosis sets in. He remembers so many phrases and legal maxims that he might enunciate, his brain becomes confused as to selection. There are volumes of charges to juries which he has more or less learned by heart. There are so many glittering and vague generalities about the law of negligence, the law of contracts, the law of evidence, the burden of proof, or the weight of testimony, that he could go on indefinitely. The jury have ceased to understand and the judge realizing the hopelessness of this situation, winds up by saying--"So, gentlemen, bearing in mind what I have just told you and the evidence in the case, you will retire and consider your verdict." The jury begin to gather their hats and coats, when up jumps one of the lawyers and says: "One moment, please. I ask your Honor to charge that if the jury find the cow that was in the plaintiff's garden was a white cow and not a red cow, then their verdict must be for the defendant." "I so charge," says the judge. "I except," says the other lawyer, "and I ask your Honor to charge the jury that if they believe the cow was the property of the defendant, their verdict must be for the plaintiff." "I refuse to charge in those words," says the judge, "there may not have been any cow or he may not have eaten the cabbages." Or the lawyer for the railway may ask the judge, "That if the jury find that the driver was forty feet away from the tracks and the car was a hundred feet away from the corner of Seventy-eighth Street when he first saw the car, and the car was going at a rapid rate and the conductor pulled the bell and the driver was sitting on the right-hand side of the wagon and might have seen the car had the car been one hundred feet below the corner, then in that event I ask your Honor to instruct the jury that the plaintiff was guilty of contributory negligence and cannot recover." The question is undoubtedly a poser. The judge is evidently worried; if he make a wrong guess and says "yes" or "no" at this juncture, the appellate court may say: "Error, judgment reversed, new trial ordered." What happens is that the judge takes a chance. The lawyer says, "I refer you to 169 New York Court of Appeals Reports, page 492; in the case of Jones _vs._ Metropolitan, the court there said that the refusal to so charge was reversible error." The judge looks wise and finally says, "yes." There is a little playing of politics in this; he has possibly been thinking how the jury are going to decide and realizing that what he charges won't make any difference, he plays safe by charging what the losing side wants. These requests to charge may go back and forth indefinitely with rulings and exceptions. Either lawyer may except to a portion of the judge's charge, thus serving notice upon him that unless he hurry up and change it he may be reversed on appeal. That is the reason why the charge of the judge has not a great effect. He has to be too careful. In New York State the judge can not say what he thinks about the case. In other words, the charge must be indefinite. In England and the Federal courts in this country, the judge may legally express his opinion as to how the case should be decided, but that is as far as he can go. The distinction is a relic of the old days of the jury system when the judges would imprison the jury until they found as was wanted. Now the judge may only express a preference and the jury may do as they please. In some courts the democratic idea of the independence of the juryman goes to the extent of not allowing the judge to say anything specific. The result is that the jury are confused. They are usually of so independent a nature that the judge's charge would not greatly influence them. The clients sit by utterly confounded; they hear the judge wisely say, "I think perhaps yes, but on the whole it may be no," and when he is through, not understanding as much as the jury, they think the judge's charge is very fair. Having said little of import it probably is. The continental method is so entirely different, that it is shocking. In the courts in France the judge practically says for his charge, "You've heard the evidence, now go on out and do what's right." This again illustrates the difference between the old and the new ideas of courts. The old is a battle ground where the issues are defined, the courts are kept within narrow limits and the rules of the ordeal observed strictly, and the modern, merely an investigation of a dispute with the glamor of a contest left out. It is an investigation of facts, which however bitter may be the personal animosity, should never lose sight of the main idea of arriving at the plain truth, in a common sense way. At last the lawyers are silent, the trial is over, the judge patiently asks are there any more requests to charge, and there being no more, he turns to the jury and says, "Gentlemen, you will retire and consider your verdict." Slowly they file out, conducted by the court attendant, to the jury-room. XV THE TRUE VERDICT The truth is said. The battle is over and the mighty have prevailed. The decision is made. Justice divine and compelling is about to pronounce its sentence. The truth seeks to burst forth and the jurymen have knocked at the door of the room in which they have been locked for so many hours. The court attendant, who has been standing like a sentinel outside to prevent the approach of eavesdroppers and listeners, turns the key and sticks his head into the room, withdraws, locks the door again, and sends off for the judge. The judge has been in his chambers taking a rest and enjoying a cigar. The judge always, when he is off the bench, is by courtesy said to be in chambers--other people might call it a room with an office desk, but the dignity surrounding a judge invests even the bare office room where he sits. It is named in the plural, even if it is only one ordinary room. He throws away his cigar. The lawyers or their assistants who have been lounging about the empty court-room, gossiping with one another and trying to evade the importunities of their clients, who insist upon speculating with them on the probable result, have been summoned to the bar. The judge takes his seat on the bench. The jury, marshalled by the court officer, file in. They are lined up in the jury-box. "Gentlemen," says the judge, "have you agreed upon a verdict?" "We have," answers the foreman of the jury. When the jury have first been locked in the jury-room they have probably immediately relaxed after the long strain of the trial. They were entitled to a smoke and to feel at their ease. Besides they know that if they finished their deliberations too early, they will be called on another case. It was nearly two when the judge finished his charge, so they have plenty of time to waste; for if they came back to the court-room before three they would be impaneled in another trial. They have taken a straw vote to find out how the sentiment stood, not with the hope of arriving at a decision but by way of trying out the matter. The result stands nine for the plaintiff and three for the defendant. They light their cigars, for they came well prepared for the tedious hours in the jury-room. The nine men look at the other three in disgust, the three look at the nine with contempt and then they begin to argue. The deliberations of the jury are always secret, their method of procedure is uncertain, and only the result of their deliberations appears in court. Nevertheless, it is only reasonable to speculate on how they have arrived at their verdict. Their verdict is the climax of the drama, the goal of the race, the award of victory. One side must win and the other be defeated. The psychology of the jury in reaching the verdict is the great mystery and the most intense interest of the trial. The judge does not know, the lawyers are unable to understand. There is a certain respect for the inviolate privacy of a jury-room. If trial lawyers could understand the method by which they arrive at their final announcement they would be far better equipped than by a study of the law for many years. It is a question whether or not their actions are different from those of ordinary men outside a court-room. They have left the restraining influence of an uncomfortable and conspicuous position and have entered again into the attitude of mind of the everyday world. The control of the judge has disappeared. The lawyers are only memories. They have become only plain business men with something definite to do. They do not know how to do it and the discussion begins in a desultory way. "Well, we ought to give that boy something." "I don't like the looks of that last witness." "That lawyer for the defendant was too smart." "But do you think the driver tried to cut him off?" "He couldn't have been in bed six weeks." "No man would stay in bed that long with a sore knee." "Oh, well, he only meant he was about the house." "That doctor was a great one. He loved to get off those terms; he must be just graduated from the hospital." "Did you hear the lawyer say in a case he tried in Brooklyn he had seventeen of those experts?" "Well, let's take another vote and see if we can't get together." "I can't stay here all day. I've got to close something important at four o'clock." "You'll stay here if you have to; we want to get this settled right." Another vote is taken. The result is the same and the two sides gradually assume opposing positions. Each one takes a leader and spokesman; the discussion is probably between those two and an occasional interjection by the others. By this time the argument has grown tense and after half an hour the original arguments of counsel, the evidence, the instructions of the judge have become merged in the minds of the jury with what has been talked of in the jury room. The recollection of each juror includes the recollection of the discussion that they are having. The mental picture is now a combination of what each witness thought, each lawyer conceived it, how the judge described it, what they imagined it during the trial, and added to the mental concept is the recent present struggle between twelve points of view. They do not remember what it was the judge told them about their verdict. Suppose they send out and ask him. No, they do not want to appear like fools. It is plain. Their verdict must be for the plaintiff or the defendant. But in that contract case where the other side wanted something back from the plaintiff, how are they going to find a verdict for both? They can't find a verdict both ways. They had better send out and ask the judge. No. Well then they will send for the pleadings, they will show. "What," says one juryman, "do you think those pleadings would show anything a reasonable man could understand?" They decide that there was a bill that told the story. They knock on the door. The court attendant opens it. They explain, he gathers in the lawyers, and they go to the judge's desk. There is a thrill. The jury have agreed so quickly it must mean a verdict for the plaintiff. If they had been out longer it would have meant there was a disagreement or a verdict for the defendant. The longer the jury stays out the better for the defendant thinks the lawyer. But the actions of the jury are uncertain and there may be no rule of arriving at their decision. There is the story of the judge who, after the jury had been out for a long time, made a bet with the stenographer as to how the jury were going to decide. The judge thought himself an expert in determining the probable verdicts of the jury. After they came in and announced their decision and were discharged, the judge having lost looked crestfallen. The stenographer smiled. Then the judge recovered himself. "You win," he said, "but the next time you and I bet on a decision it is going to be one of our cases without a jury." The attendant asks for the bill and returns to the jury-room. The court falls into a lethargy of waiting. The jury, having their information, go on with the discussion, probably on the following lines. "Sure, I told you the silks were worth four hundred dollars." "Well, I know those kind of people; they are small people and they never did that amount of business in all their lives, let alone one month." Or, "Don't you know that neighborhood; all the cars speed up whenever they get there." "Why, yesterday I was getting off a car and the conductor pulls the bell, etc., etc." "No, I ain't prejudiced against the railroad; I ain't got nothing against the railroad." "Of course, we ain't going to decide this case on sympathy or prejudice. But that boy's Irish and he looks like he come of good honest people." "Vy, I don't see no difference whether he is Irish--or Yiddish; vot ve vant is justice." "Now see here, my friend, if you think you're going to make this a racial matter you're mistaken. Just because that boy's Irish you needn't think he ought not to get nothing. You're prejudiced, that's what you are." "Oh, let's get down to the evidence anyway; what we want is to decide." "Vel, the motorman vas Irish, vot you talking about?" "Sure, but he had to say what he did. Didn't he have to hold down his job with the company?" The rest of the jury sink back resigned and despondent. They will never get out. One of them ventures. "The judge told us that the law was--" He is interrupted. "Oh, we don't care so much about the law. What we want to do is to do what is right." Somewhere, somehow, and by non-understandable methods the verdict is reached. If the jury ask for further instructions, they file back into the court-room and the judge proceeds to elucidate the hidden mystery of the law in much the same manner he did in his charge. They return again not satisfied, and take up the discussion. The most dramatic moment in the trial is when the officer comes in and announces the jury have agreed. While they slowly file in, the prisoner or the parties watch them with soul-tearing eyes; the lawyers with anxious expectancy. There is an electric thrill in the air. In some mysterious manner their verdict becomes known before the foreman speaks. Call it thought transference, mind reading, or what you will, there is a quick understanding from their faces, their manner of walking in, and their final pronouncement is only a confirmation of what was expected. The jury has spoken, the lawyer who has lost moves to set aside the verdict. The jury looks startled. Is it possible that after all that trial and all that deliberation the judge is going to upset it again and have the long trouble gone over. The judge denies the motion or takes it under advisement. Only on rare occasions does he set the verdict aside then and there. The verdict must have been outrageous, absurd, clearly a compromise, or absolutely and shockingly against common sense. The theory of the law is that the verdict of a jury is a final judgment on the facts by the best judges of the facts. It will not lightly or for small reasons be interfered with. The question of belief in the jury system is one of the most futile of all large questions. In the first place, jury trial is so deeply engraved in the constitutional bill of rights that one might as well ask: "Do you believe in citizenship?" "Do you believe in the United States of America?" Secondly, trial by jury is so completely involved in the present system of court trial and procedure, that they are inseparable. The evils of the whole attach to the part and the beneficent aspect of the courts pertain equally to jury trials. Coming down to a concrete case and leaving the abstract principle to the theorist, there are certain obvious things to be said for and against jury trial. The jury represents the opinion of the common or ordinary man--the _vox populi_. Twelve men picked at random are probably neither all capitalists nor all laborers. They are made up of a few of both, but the majority, if not all, are the small tradesmen or the great middle class. These men are not ignorant, prejudiced, or unintelligent. They have a limited experience, but their judgment is the judgment of mediocrity and mediocrity is what is wanted. The professional man, the expert, the specialist is needed for the special degree of administration, but for the determination of the actual right and justice, what is needed is the instinct of the ordinary man,--the plain ordinary common sense. When the criminal says: "I stand a better chance with a jury"; when the civilian says: "If I had the wrong end of the stick give me a jury," he is appealing not to the wrong side of the jury system, but to a quality which is not always recognized. Law is an exact, definite statement of principles, absolute and apparently immutable. When a man on the street walks up to another and wantonly insults him, the law is, that the insulted party must turn and walk away. If the matter came before a jury they would never convict him for knocking the other down at once. The jury system is the mitigation of the law. XVI LOOKING BACKWARD Extracts from the Graduation Dissertation of a Columbia J.E. upon receiving his degree of Juridical Expert in 1947. Historical investigation of obsolete customs is of little value beyond preserving some record of what may soon be forgotten. In the year 1947 it seems almost unbelievable that the universal use by the public of Judicial Corporations should have been a matter of such recent economic growth. It is interesting to trace their development and the social causes from which they sprang. The efficient administration of these co-operative Corporations being demonstrated by their financial success, makes it unnecessary to dwell upon the details of their intensely developed organization. Existing as they do upon so broad a comprehension of the whole commercial and social structures, it is little wonder that they have proven their value to the community. Their highly specialized departments of Issues, Investigation, Statutory Law, Records, Determination and Results correspond in a measure to the former method of procedure in the extinct courts of law and equity. Times have indeed changed. The analogy between the present methods and the antiquated and conventionalized customs of those cumbersome and inadequate institutions is not difficult to find. The department of Issues, for example, corresponds to what was known as the pleadings in an action. These were formerly bits of paper governed as to form by inflexible rules, instead of the efficient method by which under the trained managers of able minds the matters in dispute, either of fact or law, are now narrowed down to exact points of difference. Naturally the methods of their managers being untrammelled by outside rules and they being men of wide experience and tact, the work of this department is not as difficult as at the first commencement of Judicial Corporations was anticipated. The departments of Investigation and Experts correspond with the former division of court trials known as evidence and testimony. Any explanation would be futile of this branch of a forgotten formalism. The ancient rules of evidence and court procedure could only be understood by contemporaries and an extensive research has failed to disclose very clear concepts even by them. The modern methods of the departments governing the ascertainment of facts, either through the experience of the departmental employees or the efficient work of trained investigators, have naturally been much aided by the invention of the Viviphone making all communication adequate and easy. The departments of Statutory Law and Records even yet retain certain characteristics of a period when judicial officers and clerks represented to the public mind the embodiment of what was known as "Red Tape," a true colloquialism descriptive of the attitude of official conservatism. These departments being governed according to the latest bibliographical methods are of merely supplemental value as reference. The Simplification and National Unification of Federal and State statutes has, of course, added greatly to the facility of this branch of the business. The Determination and Result departments at first were thought to be of primary importance. Corresponding as they did in their functions to the former exclusively judicial qualities of the courts and the final judgments thereof, the exaggerated import previously given to those functions pre-supposed an equal necessity in this subdivision of the management of the corporation. This proved to be incorrect. It was found that after a careful framing and narrowing of the matter in dispute by the Issues department, and a thorough and careful sifting of facts by the Expert and Investigation departments, the dispute gradually, if not wholly, disappeared. Men of the highest character and calibre being employed at large salaries as heads of these departments, have given adequate satisfaction, as has been proved by the prosperity of the Corporations. The recompense of the heads of these various departments, requiring as it does men of the greatest commercial understanding, is said to be in some instances fabulous. In the early quarter of the present century and indeed in the latter part of the nineteenth, the undercurrents of many movements were already stirring the surface of the placid stream in which for so many centuries had been flowing the course of justice. Those curious relics of a medieval, age, the law courts, still at so recent a date, retained many of the forms, characteristics, and usages of a time when knights fought in plate armor and indulged in the mimicry of battle, urged on by the glamor of chivalry. The very terms and the legal phraseology of the period implied the jousts, tournaments, and ordeal by battle of a romantic and self-deceptive age. The universal world war that resulted in such an immense change of social and economic values contributed naturally to the destruction and abandonment of old forms and structures. Yet even before the war and the economic revolution that followed so quickly thereafter, the tendencies toward a more sane treatment of the question had already begun. Like the extinct class of so-called physicians and doctors, who have now been amalgamated by the Public and Private Health Corporations, what was known as the legal profession or men known as lawyers and judges, had been gradually losing their characteristics as a class and had been step by step merging into men of business. One of the earliest changes was the disappearance of the lawyers known as the real estate lawyer. Up to about 1890 there still remained members of the legal profession who made a livelihood out of the examination of the titles to real property. The obvious advantages of a comprehensive title examination plant by large corporations known as Title Insurance companies soon eliminated this particular subdivision. The next important change arrived in a curious manner under the cry for what was then known as Social Justice--a vague term which was then advocated by many so-called "reformers" and ignorantly opposed by the capitalist class, without any very clear understanding of what was meant. So little was realized of the economic and efficiency values of insurance against chance, that the beginning of the movement was opposed. The movement resulted in certain obvious changes which looking back upon them seemed inevitable and natural. This was what was known as universal Employers' Liability laws. The principle soon extending itself to all classes of accidents, resulted in the passage of legislation which had been foreshadowed by the tremendous growth of Casualty and Accident Insurance companies. Beginning at first with laws holding the employer liable for accident, and afterward resulting in the insurance of labor, it was gradually extended to accidents of every nature, including injury from travel on common carriers and the ordinary vicissitudes of life. The result of State insurance against negligence and injuries of every kind was that all claims for injuries were adjusted by the State and the lawyers who lived by pursuing the neglect or misfortunes of others, gradually became extinct. A certain distinguished and conspicuous type was known by the term "ambulance chasers"--the exact derivation of the term not being now, in 1947, entirely clear but probably being related to some antiquated legal custom of succoring the wounded--very soon disappeared. The cases that arose from all commercial disputes became less numerous as the more candid and intelligent dealings of the economic world awoke better and more honest business standards. But long before the disappearance of what was known as the commercial lawyer, there are evidences that the former courts of law, even before their entire abandonment, had fallen into a partial desuetude. Apparently disputes of large magnitude never reached the courts. And the legal standards enunciated by the courts were so entirely unrelated to the standards on which the actual commerce of the world was conducted, that resort was but little had to the arbitrament of the law of procedure in court. The entire change of personal and domestic relations and the greater freedom from the institutionalism of semi-civilized communities, _e.g._, the abandonment of all restriction on divorce, naturally did away with the class of litigation that appeared in certain courts of law dealing with marital or personal grievances. In regard to what were known as criminal lawyers and criminal courts, the different attitude which the public formerly had toward unfortunate sufferers makes the existence of such a class or such institutions almost unbelievable. As it is now inconceivable that we should throw into unsanitary jails men and women who are mentally or socially diseased, so is it hard to realize that during the unintelligent period of which we are speaking, nay for many centuries, there existed people who lived upon their misfortunes. Naturally with the disappearance of litigation and lawyers the public no longer tolerated the existence of the judges or courts. For a few years they retained a hold upon the imagination of a small portion of citizens who entertained a sentimental regard for the State institutions of a civilization founded upon the unsound teachings of eighteenth-century doctrinaires. The period of the abandonment of the old courts corresponded with the extraordinary development for what was called "moving pictures"; those pale, lifeless presentations without color, speech, or substance, at which the people of a benighted age gathered for amusement or entertainment! It requires imagination to conceive that people were unfamiliar with the ease of communicating with any place on the globe and reproducing exactly in form, color, and speech by turning on a switch. The observer of that age must have been shocked and surprised to find the solemn courthouses turned into what was known as moving-picture palaces or as community centers for dancing and social entertainments. The change of class which the lawyers had gradually been undergoing to simple men of affairs was not so abrupt as that for the judicial officers, who were far removed from actual life. Various expedients were attempted by which they could be preserved as a class. Their former occupation being gone and the idea of pensioning not being satisfactory, as there remained a large number of younger men on the bench who might be of some value to the community, a system of court cafés was evolved. Even to-day it is fast disappearing and for the benefit of future generations it may be well to describe the last remnant of an institution that held its position in the social order for so long. Human nature being always substantially the same, it was thought that its demands for the dramatic action and stress of battle should have some outlet. It was not thought wise to entirely abolish the arenas for legal disputes, although the present Judicial Corporations with their excellently organized departments were already rapidly destroying all litigation. It was felt that perhaps humanity demanded the bringing together of the two disputants so that they personally might oppose their claims to one another. It now seems incredible, in view of the absolute simplicity of communication by Viviphone, that this should be thought necessary. The need for romantic expression seemed to demand the opportunity for personal presentment. The social workers who established these café courts, did not realize that with the growth of a more intelligent public point of view, the question of abstract justice was little more than an application of customs and social standards to particular facts; and that with the fall of the ideas of justice in the abstract, there also fell the appurtenances of justice. It may here be noted that the learned treatise of Professor Humperdinck upon the recent discovery of certain statutes found among the ruins of the Great New York Explosion is mistaken. The figure which he described among others of the woman blind-folded and with an arm extended as though holding something, does not represent as he calls it, "The poor blind girl begging," but a figure of the Goddess of Justice holding the scales, who was so long worshiped. The growth of the court cafés was made possible by the amelioration in the climate of New England effected through the alteration in the course of the Gulf Stream. The inhabitants became accustomed to spend more time in the open air so that the courts became popular. Existing as places for the display of eccentricities and the airing of personal grievances, they soon became extremely frequented as places of amusement. Whenever any litigant felt that there was any matter in dispute which needed adjustment by some outside agency, he invited the other party to come to the court. The judges occupied the position of proprietors, _maîtres d'hôtel_, and waiters, whose business it was to make the courts as attractive as possible. As their salaries depended upon the amount of receipts and the courts were run upon a partnership basis in which all shared the profits, the aim of the judges was to draw as large amount of custom as possible. The surroundings were in every way desirable. In the open air, under spreading trees with the sunlight filtering through the leaves upon the well-kept lawns, were spread tables covered with delicious fruits and every delicacy that the human mind could devise in the way of culinary delights. Rare wines, exotic flowers were constantly supplied in profuse display. Luxurious divans and reposeful seats were interspersed about. The most modern as well as the most famous musicians furnished exquisite music, while flitting about in neat white aprons partially concealed by their gently swishing gowns of black, the attentive justices anxiously tried to add to the pleasure and comfort of their customers. With such temptations as these there was little wonder that the opposing party accepted the invitation to attend court. Witnesses and spectators crowded about, both on account of the novelty of the institution and the opportunity for refreshment and amusement. The aim of the judges was to incite the disputants to continue their disputes instead of trying to pacify them. The more vociferous they grew, the more noisy and passionate they became, the better the crowds were held who came to observe the performance. It was upon this clientele and the sale to them of viands and comestibles during the dispute that the profits of the judges depended. So long as there was a serious and energetic struggle the spectators remained at the adjacent tables and trade was brisk. Whenever, however, the litigants came to a full realization of the absurdity of their position, either by the continued laughter of the spectators at the public airing of their private wrongs with which the public had nothing to do, or becoming tired of mere words and came to diminish the ardor of their combat, the crowd would begin to dwindle away. The judges quick to understand the loss of trade after vainly trying to induce the litigants to new efforts, would gently and suggestively push under their hands a pair of dice boxes or a pack of cards and the dispute would sometimes end upon the throw of a die or the turn of a card. The reason that these court cafés have not long remained in vogue, was that all actual litigants soon became so sophisticated as they realized the enormity of the position and how unreasonable their conduct seemed to the average man. Public sentiment was naturally against such a waste of time and real performers became scarce. Several of the courts were detected in hiring false litigants as actors so as to draw the crowds. The performance not being genuine soon lost its interest. The patrons left them and many courts became bankrupt. So like their predecessors, those light-minded courts have practically ended. THE END * * * * * Justice to All The Story of the Pennsylvania State Police By Katharine Mayo Introduction by Theodore Roosevelt 8º. Illustrated. $2.50 Theodore Roosevelt says: "It is a book so interesting and so valuable that it should be in every public library and every school library in the land." This State Constabulary in its romantic career has hunted down crime, made raids into "Black Hand" strongholds, protected lives and property from mob violence, and always risen to every emergency where nerve and swift action are required. G.P. Putnam's Sons New York London * * * * * +---------------------------------------------------------+ | Typographical errors corrected in text: | | | | Page 7: beween changed to between | | Page 21: psuedo-classic changed to pseudo-classic | | Page 173: frigthened changed to frightened | | Page 202: planitiff changed to plaintiff | | | +---------------------------------------------------------+ 
26446	----	file was produced from images generously made available by the Library of Congress) [Transcriber's Note: This e-book contains extensive passages from 18th Century documents. Spelling, punctuation, hyphenation, and capitalization are preserved as they appear in the original (including "goal" for "gaol"). Superscripts are rendered as normal letters. Macrons over consonants are rendered in brackets with an equal sign, e.g., [=c].] THE TRIAL AND EXECUTION, FOR PETIT TREASON, OF MARK AND PHILLIS, SLAVES OF CAPT. JOHN CODMAN, WHO MURDERED THEIR MASTER AT CHARLESTOWN, MASS., IN 1755; FOR WHICH THE MAN WAS HANGED AND GIBBETED, AND THE WOMAN WAS BURNED TO DEATH. INCLUDING, ALSO, SOME ACCOUNT OF OTHER PUNISHMENTS BY BURNING IN MASSACHUSETTS. BY ABNER CHENEY GOODELL, JR. CAMBRIDGE: JOHN WILSON AND SON. _University Press._ 1883. [200 copies printed.] THE TRIAL AND EXECUTION OF MARK AND PHILLIS, IN 1755. [The following pages are, with slight changes, a reprint from the Proceedings of the Massachusetts Historical Society, of a paper read before that Society, March 8, 1883, in answer to a question propounded at a previous meeting, relative to the authenticity of the tradition that a woman was burned to death in Massachusetts in the year 1755. As this case is the only known instance of the infliction of the common-law penalty for petit treason, in New England, and is not known to have been elsewhere reported, the printers have, at the author's request, struck off, in pamphlet form, a limited number of impressions for the use of persons interested in the history of our criminal jurisprudence, who may not have convenient access to the serial from which it is taken, or who may desire to preserve it separately.] It is not surprising that the execution of a woman, by burning, so lately as when Shirley was governor,--a period when the province had greatly advanced in culture and refinement,--should seem to any one incredible. Indeed, even so critical and thorough a student of our provincial history as our late distinguished associate, Dr. Palfrey, once wrote to me inquiring if the rumor of such a proceeding had any foundation in fact, and if so, whether the execution took place according to law, or by the impulse of an infuriated mob. It gave me great satisfaction to be able to settle his doubts on this subject by referring him to the records of the Superior Court of Judicature, where the judgment, from which I shall presently read to you, and a copy of which I sent to him, appears at length. The subject is important at this day only as serving to define the nature of the "cruel and unusual punishments" prohibited by the thirty-first article of the Declaration of Rights, in our state Constitution, since this mode of punishment, having continued after the adoption of the Constitution, cannot have been considered by the framers of that instrument either as "cruel" or "unusual" in the sense in which they used these words. The particulars of the crime for which the malefactors, Mark and Phillis, were executed are briefly as follows: Captain John Codman, a thrifty saddler, sea-captain, and merchant, of Charlestown, was the owner of several slaves whom he employed either as mechanics, common laborers, or house servants. Three of the most trusted of these, Mark, Phillis, and Phebe,--particularly Mark,--found the rigid discipline of their master unendurable, and, after setting fire to his workshop some six years before, hoping by the destruction of this building to so embarrass him that he would be obliged to sell them, they, in the year 1755, conspired to gain their end by poisoning him to death. In this confederacy some five or six negroes belonging to other owners were more or less directly implicated. Mark, the leader, was able to read, and signed his examination, hereafter referred to, in a bold, legible hand. He professed to have read the Bible through, in order to find if, in any way, his master could be killed without inducing guilt, and had come to the conclusion that according to Scripture no sin would be committed if the act could be accomplished without bloodshed. It seems, moreover, to have been commonly believed by the negroes that a Mr. Salmon had been poisoned to death by one of his slaves, without discovery of the crime. So, application was made by Mark, first to Kerr, the servant of Dr. John Gibbons, and then to Robin, the servant of Dr. Wm. Clarke, at the North End of Boston, for poison from their masters' apothecary stores, which was to be administered by the two women. Essex, the servant of Thomas Powers, had also furnished Mark with a quantity of "black lead" for the same purpose. This was, unquestionably, not the harmless plumbago to which that name is now usually given, but galena, or _plumbum nigrum_, a native sulphuret of lead, probably used for a glaze by the potters of Charlestown. Kerr declined to have any hand in the business; but Robin twice obtained and delivered to Mark a quantity of arsenic, of which the women, Phebe and Phillis, made a solution which they kept secreted in a vial, and from time to time mixed with the water-gruel and sago which they sometimes gave directly to their victim to eat, and at other times prepared to be innocently administered to him by one of his daughters. They also mixed with his food some of the "black lead," which Phillis seems to have thought was the efficient poison, though it appeared from the testimony that he was killed by the arsenic. The crime was promptly traced home to the conspirators; and on the second day of July, the day after Captain Codman's death, a coroner's jury found that he died from poison feloniously procured and administered by Mark. Ten days later, Quaco,--the nominal husband of Phebe, and one of the negroes implicated,--who was the servant of Mr. James Dalton, of Boston, was examined before William Stoddard, a justice of the peace, and on the same day Robin was arrested and committed to jail. The examination of Quaco was followed by the examination of Mark, and of Phillis, later in the month. These last were taken before the Attorney-General and Mr. Thaddeus Mason. At the term of the "Superiour Court of Judicature, Court of Assize, and General Goal Delivery," held at Cambridge on the second Tuesday of August following, the grand jury found a true bill for petit treason against Phillis, and against Mark and Robin as accessories before the fact. As this is the only indictment for this offence known to have been found in Massachusetts, and was drawn by that eminent lawyer, Edmund Trowbridge, then Attorney-General, it is worthy of being preserved in print, in connection with the coroner's verdict and the examinations of the suspected parties, which are as follows:-- [_Coroner's Inquest._] [Two-penny stamp.] MIDDLESEX ss. An Inquisition Indented, Taken at Charlestown Within the County of Middlesex Aforesaid the Second day of July in the Twenty ninth year of the Reign of our Lord George the Second by the Grace of God, of Great Britain France and Ireland, King Defender of the Faith &c., before John Remington Gentleman one of the Coroners of our said Lord the King, Within the County of Middlesex Aforesaid; upon view of the Body of John Codman of Charlestown Aforesaid Gentleman then and there Being dead by the oaths of Josiah Whitemore, Samuel Larkin, Samuel Larkin Junr. Richard Deavens, William Thompson, Nathaniel Brown, Samuel Kettle, John Larkin, Thomas Larkin, David Cheever, Barnabas Davis, Edward Goodwin, Benjamin Brazier, Samuel Sprague, Richard Phillips, Samuel Hendley and Michael Brigden Good and Lawfull men of Charlestown Aforesaid Within the County Aforesaid; Who being Charg'd and Sworn to Inquire for our said Lord the King, When, and by What means, and how the Said John Codman Came to his Death--upon their Oaths do Say that the said John Codman Came to his death By Poison Procured by his negro man servant Mark Which he took and Languishd untill the first of July Current and then died and so the Jurors Aforesaid upon their oaths do Say, that Aforesaid Mark in manner and Form Aforesaid, the Aforesaid John Codman then and there feloniously did Poison against the peace of our Soverign Lord the King his Crown and Dignity-- In Witness, Whereof, as Well I the Coroner Aforesaid, as the Jurors Aforesaid, to this Inquisition have Interchangeably put our hands and Seals, the day And year Abovesaid. JOHN REMINGTON _Coroner_ [Seal.] RICHD PHILLIPS [Seal.] JOSIAH WHITTEMORE [Seal.] SAMLL KETTELL [Seal.] SAML HENDLY [Seal.] JOHN LARKIN [Seal.] MICHLL BRIGDEN [Seal.] SAMUEL LARKIN JNR. [Seal.] NATHLL BROWN [Seal.] WILLIAM THOMPSON [Seal.] DAVID CHEEVER [Seal.] THOMAS LARKIN [Seal.] SAMLL LARKIN [Seal.] RICHARD DEVENS [Seal.] BENJAMIN BRAZIER [Seal.] BARNABAS DAVIS [Seal.] SAMUELL SPRAGUE [Seal.] EDWD. GOODWIN [Seal.] [_Examination of Quaco._] On the 12th July 1755, was Examined Quacoe a Negro man belonging to Mr James Dalton of Boston Victualler He sd Quacoe says that some time the last winter one Kerr a Negro man belonging to Doctr. Jno Gibbons came to the sd Quacoe & told him that Mark belongg. to Mr Codman had Been wth. him to get some Poyson and the sd. Quaco says that Ker told him that Mark asked the sd. Kerr whither Phoebe had been wth. him for said Poyson. The said Quacoe also says that he Spoke to Phoebe Mr Codman's negro woman whom he called his Wife & told her not to be Concerned with Mark for that she would be Brought into Trouble by him, for that Mark had been wth. Kerr Gibbons to get Poyson, & had askt sd Kerr whither Phoebe had not been wth him for sd Poyson. The sd Quacoe also says that the above discourse wth Phoebe was when they were going to Bed the Saturday night after the discourse had wth. Kerr Gibbons. He also says that he charged her not to be concerned wth. Mark about Poyson on any accot. whatever. The above Examination Taken on the 12th. July 1755 at Boston [Symbol: Per] WM STODDARD _J Pacis_ [_Mittimus against Robin._] SUFFOLK ss: To The Keeper of His Majestys Goal in Boston and to the Constables of Boston Greeting-- [Sidenote: L.S.] I herewith Comit to you Mr. Constable Pattin the Body of Robin a Negro man belonging to Dr. William Clarke of the North End of Boston, who is this day Charged wth being Concerned in the Poysoning of the late Mr. John Codman of Charles Town Deceased. Take Care of him and deliver him to The Keeper of His Majestys Goal in Boston; and you the sd Keeper are hereby Commanded to Receive the Body of the Said Robin and him Safely Keep untill he shall be discharged by Due Course of Law, Given under my hand and Seal at Boston the Twelfth day of July anno Domini 1755 and in the Twenty ninth Year of the Kings Reign. WM. STODDARD, _Just: Pacis_. [_Examination of Phillis._] MIDDX ss: The Examination of Phillis a negro Servant of John Codman late of Charlstown deceased taken by Edmund Trowbridge and Thaddeus Mason Esqrs at Cambridge in the County of Middlesex the 26th. Day of July Anno Domini 1755. And ye 2d of Augt. following-- _Questn._ Was Mr. John Codman late of Charlstown de[=c]d, your Master? _Answr._ Yes he was. _Quest._ How long was you his servant? _Answr._ He my said Master bought me when I was a little girl and I continued his servant untill his Death. _Questn._ Do you know of what sickness your said master died? _Answer._ I suppose he was poisoned. _Quest._ Do you know he was poisoned? _Answr._ I do know he was poisoned. _Quest._ What was he poisoned with? _Answr._--It was with that black lead. _Quest._ what black Lead is it you mean? _Answr._ The Potter's Lead. _Quest._ How do you know your sd. master was poisoned with that Lead? _Answr._ Mark got some of the said Potter's Lead from Essex Powers and my young mistress Molly found some of the same Lead in the Porringer that my Master's Sagoe was in, he complain'd it was gritty; and that made Miss Molly look into the Porringer, and finding the Lead there, she ask'd me what it was, I told her I did not know.--I cleaned the Skillet the Sagoe was boiled in and found some of the same stuff in the bottom of the skillet that was in the bottom of the Porringer. And presently after Mark was carried to Goal, Tom brought a Paper of the Potter's Lead out of the Blacksmith's Shop, which he said he found there; and I saw it and am sure it was the same with that which Was in the bottom of the Porringer and the Skillet. _Quest._ Do you know that any other Poison besides the Potter's Lead was given to your sd master? _Answr._ Yes. _Quest._ What was it? _Answr._ It was Water which was poured out of a Vial. _Quest._ How do you know that, that Water was Poison? _Answr._ There was a White Powder in the Vial, which Sunk to the Bottom of it.-- _Quest._ Do you know who put the Powder into the Vial? _Answr._ I put the first Powder in. _Quest._ Where did you get that Powder? _Answr._ Phebe gave it to me up in the Garret, the Sabbath Day morning before the last Sacrament before my master dyed, and Phoebe at the same time told me Mark gave it to her. _Quest._ What was the Powder in when Phoebe gave it you? _Answer._ It was in a White Paper, folded up Square, both ends being turn'd up, & it was tyed with some Twine. _Quest._ How much Powder was there in the Paper? _Answr._ There was a good deal of it I believe near an ounce. _Quest._ Did you put all that Powder into the Vial? _Answr._ No, I put in but a little of it, only so much as lay on the Point of a narrow Piece of flat Iron, with which I put it in, which Iron Mark made & gave it to me to give to Phebe, Mark gave me the sd Iron the Saturday before the Sabbath aforesd. I ask'd him what it was for, he would not tell me; he said Robbin gave him one, and he had lost it; and that he himself went into the shop and made this. I gave the sd Iron to Phoebe that same afternoon, in the Kitchen; and the next morning she gave it to me in the Garret, and Quaco was there with her; she whisper'd to me and told me to take the Paper of Powder which was in the hollow over the Window, and the flat Iron which was with it and put some of it into the Vial with the Iron which I did; and she bid me put some water into it, but I did not; but she afterwards put some in herself, as she told me, and she put it into the Closet in the Kitchen in a Corner behind a black Jug; and the same Vial was kept there untill my master dyed. _Quest._ Had your Master any of that Water which was put into the said Vial given to him? _Answr._ Yes he had. _Quest._ How was it given to him? _Answr._ It was poured into his barly Drink and into his Infusion, and into his Chocalate, and into his Watergruel. _Quest._ Who poured the Water out of the sd Vial into the Chocalate? _Answr._ Phoebe did, and Master afterwards eat it. _Quest._ Who pour'd it into his barly Drink? _Answr._ I did it myself; I pour'd a drop out of the Vial into the barly Drink, & I felt ugly, and pour'd the Water out of the mug again off from the Barly, and put clean Water into the mug again & cover'd it over that it might boil quick. _Quest._ Who pour'd the Water out of the Vial into the Infusion? _Answr._ Phoebe did. _Quest._ How do you know it? _Answr._ I came into the Kitchen and saw her do it. _Quest._ Did your master drink the Infusion after that water was so pour'd in? _Answr._ He drank one Tea Cup full of it. _Quest._ How do you know that Phoebe poured any of the poisoned Water out of the Vial into your Master's Chocalate? _Answr._ She told me she had done it. _Quest._ When did she tell you so? _Answr._ That Same Day. _Quest._ Was it before or after your Master eat that Chocalate that the poison'd Water was pour'd into, that She told you so? _Answr._ Before he eat it. _Quest._ Did you see him eat that Chocalate? _Answr._ Yes, I did, he eat it in the Kitchen on a little round Table. _Quest._ Who put the Second Powder into the Vial? _Answr._ Phoebe put it in; I left Part of the Powder she gave me in the Paper, and she afterwards put that into the Vial as she told me. as I was in the cellar drawing some Cyder, I heard Phoebe tell Mark that the Powder was all out, and all used up; _Quest._ When was it that you heard Phoebe tell Mark so? _Answr._ The Wednesday before my master dyed. _Quest._ Do you know of any more Powder being got to give to your master? _Answer._ Yes, but master never took any of it. _Quest._ Who got this last Powder? _Answr._ Mark got it. _Quest._ What did he do with it? _Answr._ He gave it to me; in our little House. _Quest._ What Sort of Powder was it that Mark gave You? _Answr._ I[t?] was white the same as the first. _Quest._ What was it in? _Answr._ In a Peice of Paper; he had more of that Powder than he gave me, it was in a Paper folded up in a long Square, he tore off Part of that Paper, and put Some of the Powder into it, and gave it to me and kept the rest himself. and at the same time that he gave it to me he told me that Robbin said we were damn'd Fools we had not given Master that first Powder at two Doses, for it wou'd have killed him, and no Body would have known who hurt him, for it was enough to kill the strongest man living; upon which I ask'd Mark how he knew, it would not have been found out, he said that Mr. Salmon's Negros poison'd him, and were never found out, but had got good masters, & so might we. _Quest._ What did you do with that Powder which Mark gave you? _Answr._ I put it into the Vial, & set it in the Same Place it was in before, there was some of the first Powder & Water remaining in the Vial when I put this last in. _Quest._ Do you know that any of the Water that was in the Vial after you put this last Powder in was given to your Master? _Answr._ No, he never had a drop of it. The next Day after Master died Mark came into the Closet where I was eating my Dinner and ask'd me for that Bottle. I ask'd him what he wanted it for, and he would not tell me, but insisted upon having it, upon which I told him that it was there behind the Jugg, and he took it and went directly down to the Shop in the yard, and I never saw it afterwards 'till Justice Mason shew it to me, on the Fast Day night. _Quest._ Do you know where Mark got that Powder which he gave to you? _Answr._ He had it of Robbin, Doctr Clark's Negro; that liv'd with Mr. Vassall. _Quest._ How do you know that Mark had that Powder of Robbin? _Answr._ The Thursday night before my master died Mark told me he was going over to Boston to Robbin to get some more Powder for he sd: Phoebe told him yt the other was all out; and Mark went over to Boston, and return'd again about nine o'Clock; and I ask'd Mark if he had got it, and he told me no, he had not, but Robbin was to bring it over the next night; and between 8 & 9 o'Clock that next night, a negro Fellow came to me in our Yard & ask'd me for Mark, And I ask'd him his name but he would not tell me, and I said to him, Countryman, if you'l tell me your name I'll call Mark, for I know where he is, but he would not, I then askt him if he was not Robbin Vassall, (for I mistrusted it was he) and upon that he laughed and said his name was not Robbin Vassall, but he came out of the Country and wanted to see Mark very much about his Child; and upon my refusing to tell him where Mark was the negro went away down to the Ferry, and I followed him at some distance & saw him go into the Ferry Boat, and the Boat put off, with him in it. That same Fryday, in the afternoon, Mark told me, if any Negro Fellow shou'd come; & say that he came out of the Country to call him, I ask'd him what negro it was that he expected wou'd come; he told me it was Robbin, and that he was to say that he came out of the Country to speak with Mark about his Child, and bid me tell no Body about it. _Quest._ Do you know Robbin Doctr. Clark's negro? _Answr._ I do, and have known him for many years. _Quest._ How then happen'd it that you cou'd not certainly tell whether the negro aforesd. that askt for Mark was Robbin or not? _Answr._ Because it was dark, So dark I cou'd not see his Face so as certainly to know him, but I am fully satisfyed it was Robbin. _Quest._ What Reason have you to be satisfyed it was Robbin? _Answr._ That same night I told Mark that a negro Fellow had been there and ask'd for him & wanted him, he ask'd me why I did not call him, I told him our Folks called me and I could not, Mark told me he was very Sorry I did not, and asked me if he gave me any Thing, I told him he did not, he said he was very sorry he did not; then I ask'd him who it was, and he said it was Robbin, and then he told me that he thought Robbin & he had been playing blind-mans Buff, for they had been over the Ferry twice that night and mist one another; and that Elijh Phipps & Timo Rand told him that a negro Fellow had been over the Ferry to speak with him about his Child. And then Mark told me he would the next Night go over to Robbin and get some more of the same Powder, and would bring it over on the Sabbath Day, & he went to Boston on the Saturday night, but did not return till Monday morning, when he brought it and gave it to me in the little House, as I told you before. _Quest._ Did you see Robbin at Charlstown in the Time of your master's sickness or about the Time of his Death? _Answr._ Yes, I saw him on ye Tuesday the Ship was launched, when my master catch'd Mark buying Drink at Mrs Shearman's to treat him with, & drove him away; and I saw him at Charlstown on the Saturday after my Master was buried; but I did not speak with him at either of those Times. The Tuesday he was before our Shop Door, in the Street, with Mark and had a Bag upon his shoulder; and on the Saturday in the afternoon I saw him going up the Street by our House, while Phoebe and I were washing in the back yard; I told Phoebe there was Robbin a going along this minit, and she said is he? and ask'd me what Cloaths he had on; I told her he had a bluish Coat on lined with a straw coloured or yellow lining and the Cuffs open & lined with the said Yellow lining, and that he had a black wigg on; and I told Phoebe I believed he was gone up to Mark to tell him not to own that he had given any Thing to him, and Phoebe said she believed so to; and I went into the street to the Pump with a Pail to get some Water, designing to see whether he went that Way, and I saw him go right up the main street, and I could see him as far up as Mr. Eleazer Phillips's, and I did not see him afterwards. I never see him with a Wigg on before, but as he went by us he look'd me full in the Face and I knew it was Robbin. When I told Phoebe that Robbin was going by, I thought she saw him, but she questioned whether it was he, and I told her I was sure it was he, for I had known him ever since he was a boy, and I told her I would lay a mug of Flip that it was he, but she wou'd not; and then it was that I told her I believed he was gone up to Mark &c. _Quest._ Do you know what Powder that was which Mark & Phoebe gave you, and you put into the Vial? _Answr._ Mark told me it was Ratsbane, but I told Phoebe I believed Mark lied & that it was only burnt allom, for I told her, that upon taking Ratsbane they would directly swell, and Master did not swell; and she said she believed so to. _Quest._ How many Times was any of that Water, which was in the Vial aforesd., put into your master's victuals? _Answr._ Not above Seven Times. _Quest._ When was the first Time? _Answr._ The next Monday morning after Phoebe gave me the first Powder. then it was put into his Chocalate, by Phoebe. The next was also put in to his Chocalate by Phoebe on the next Wednesday morning, and I thinking she put in more than she should, told her her hand was heavy, and there was no more put in, that, I know of till the next Fryday, when Phoebe put some into his Chocalate, and my Master eat the Chocalate all the three times aforesaid in the Kitchen, and I was there & saw him; The next was on the Saturday following, when I put Some into his Watergruel, but I felt ugly and threw it away, and made some fresh, and did not put any into that. The next was on the afternoon of the same Saturday, I made him some more Watergruel & pour'd some of the Water out of the Vial into it, and it turned yellow, and Miss Betty, ask'd me what was the matter with the Watergruel and I gave her no answer; but that was thrown away, and more fresh made, and Miss Molly was going to put the same Plumbs in again, and Phoebe told her not to do it, but she had better put in some fresh Plumbs, and she did; and no Poison was put into that; It was by Phoebe's advice that I put it into the first this afternoon. And he had no more, that I know of 'till the next Monday night, when Mark put some of the Potter's Lead into Masters Sagoe. _Quest._ How do you know that Mark put any of the Potter's Lead into the Sagoe? _Answer._ When I went out of the Kitchen I left the Sagoe in the little Iron Skillet on the Fire, and no body was in the Kitchen then, but when I returned, Mark was Sitting on a Form in the Corner, and I afterwards found Some of that Lead in the Skillet, and neither Phoebe nor I had any Such Lead. _Quest._ Do you know of any other Poison prepar'd for, or given to your Master? _Answr._ No, I do not. _Quest._ Who was it that first contrived the poisoning your Master Codman? _Answr._ It was Mark who first contrived it, He told Phoebe and I that he had read the Bible through, and that it was no Sin to kill him if they did not lay violent Hands on him So as to shed Blood, by sticking or stabbing or cutting his Throat. _Quest._ When was it that Mark first proposed the poisoning his Master? _Answr._ Some time last Winter; he proposed it to Phoebe and I, but we would not agree to it, and told him No Such Thing should be done in the House; This before my Master brought him home from Boston. _Quest._ Did he ever afterwards propose the poisoning his sd Master? _Answr._ Yes he did, a Week or a Fortnight after my Master brought him home from Boston, he proposed it to me first, and I would not agree to it, and then he proposed it to Phoebe. _Quet._ What Reason did Mark give for poisoning his Master? _Answ._ He said he was uneasy and wanted to have another Master, and he was concerned for Phoebe and I too. _Quest._ Do you know how your Master's Work house that was burnt down came on Fire? _Answr._ Yes I do. _Quest._ How came it on fire? _Answr._ I set it on fire, but it was thro' Mark's means, he gave me no rest 'till I did it. _Quest._ How did you Set your Master's Work House on fire? _Answr._ I threw a Coal of Fire into some Shavings between the Blacksmith's Shop & the Work House, and I went away & did not see it kindle. _Quest._ Who put the Shavings there? _Answr._ Mark did. _Quest._ Was any Body concern'd in the burning the Work house besides Mark and you? _Answr._ Yes, Phoebe knew about it as well as I. _Quest._ Where was Phoebe & Mark when you put the Coal of Fire into the Shavings? _Answr._ The were up Garret in bed. _Quest._ Who first proposed the Setting the Workhouse on fire? and what reason was given for doing it? _Answr._ Mark first proposed it, to Phoebe and I; and the Reason he gave us was that he wanted to get to Boston, and if all was burnt down, he did not know what Master could do without selling us. _Quest._ Why did you, when Phoebe pour'd Some of the Water out of the Vial into the Chocalate tell her, "her hand was heavy?" _Answr._ I thought she pour'd in too much, more than she should I felt ugly and I wan't willing she shou'd put in so much and that he should be kill'd so quick. Mark's orders were to give it in two Doses, that was the Directions Robbin gave to Mark, as Mark told me, and Mark Said Robbin told him there was no more taste in it than in Cold Water. _Quest._ Why did you not tell your Master or some of the Family that Phoebe had poisoned the Chocalate, and thereby prevent your Master's eating it? _Answr._ I do not know why I did not tell. The mark of X Phillis. [_Examination of Mark._] MIDDLESEX ss: The Examination of Mark a Negro Servant of John Codman late of Charlstown deceased taken by Edmund Trowbridge & Thaddeus Mason Esqrs. at Charlstown in the County of Middlesex the ---- Day of July Anno Dom: 1755. _Quest._ What is your name? _Answr._ Mark. _Quest._ Are you a Servant or Freeman? _Answr._ A Servant. Mr. John Codman decd: was my master. _Quest._ How long was you his Servant? _Answr._ For several Years before & untill his Death. _Quest._ Do you know what occasion'd your sd. Master's Death? _Answr._ He was poisoned. _Q._ What was he poisoned with? _A._ With Poison that came from the Doctor's. _Q._ What Doctor? _Answr._ Doctr. Clark that lives at the North End of Boston. _Q._ What sort of Poison was that? _A._ It was a White Powder put up in a Paper. _Q._ How do you know that that Powder came from Doctr. Clark's? _A._ Robbin the Negro Fellow that belongs to Doctr. Clark gave it to me. _Q._ When & where did Robbin give you that Powder? _An._ A Week Day night, at his Master's Barn. _Qu._ Was there any Person present with you when Robbin gave you that Powder? _An._ No. The first Time, the negro man his fellow Servant called him out, it was in the Evening near 9 o'Clock. _Qu._ How many Times had you such Powder of Robbin? _An._ Twice only. _Qu._ When was the last Time you had any such Powder of him? _An._ The Sabbath Day night before my sd. Master died, in the Evening after Candle Light. _Qu._ Where was it you had this last Powder of him, and what was it in? _An._ He gave it to me in the same Barn, it was done up in a long square in two Papers, the outtermost Paper was brown and the inermost Paper was White, as the other was. _Qu._ What did Robbin give you these Powders for? _An._ To kill three Pigs belonging to Quaco as Phoebe told me. _Qu._ How long ago was it Since Robbin gave you the first of these Powders? _An._ I can't certainly tell. _Qu._ Was it before Robbin & you were together at John Harris ye Potters Work house? _Ansr._ I think it was before. _Qu._ How long before was it? _Ansr._ About a Week before. _Qu._ Did you pay Robbin any Thing for these Powders? _An._ No. I did not. _Q._ What did you do with them? _Ans._ Phoebe had the first; and she sent Phillis for the second and I gave it to her. _Qu._ When & where did you give Phoebe the first Paper of that Powder? _An._ In our Garret; the same night I brought it over. _Qu._ Was any Body there when you gave it to her? _An._ No. _Qu._ What did she do with it? _An._ She took it & put it upon the Table. _Qu._ Did you give her the whole of the Powder you had of Robbin the first Time? _An._ Yes. I gave her the Paper with all the Powder in it, as I received it of Robbin. _Qu._ Did you tell her what was in the Paper? _An._ No. She knew what was in it; for she told me what to get. _Qu._ What did she tell you to get? _An._ Something to kill three Pigs. _Qu._ Did Robbin give you any Directions how to use that Powder, and tell you what Effect it would have? _Ans._ He told me to put it into about 2 Quarts of Swill or Indian meal, and it would make 'em swell up. _Qu._ Did you tell her how she must use the Powder? or what Effect it would have? _Answr._ yes I told her as Robbin told me. _Qu._ Do you know whether she used that Powder or any Part of it? _Answr._ no otherwise than as Phoebe & Phillis told me Since my master's Death. _Qu._ Who did you give the Second Paper of Powder to? _An._ To Phillis. _Qu._ When & where did you give that Paper of Powder to Phillis? _Ans._ In the little House; She came to empty a Pot over the Wharffe, and I gave it to her, The Monday before my sd. Master died, after Breakfast in the Forenoon. _Qu:_ Did you then give her all the Powder you recd. of Robbin the Second Time? _Ans._ Yes. I took off the brown Paper and gave it to her in the white Paper, that it was in, when Robbin gave it to me. _Qu._ What did she do with it? _Answr._ She caried it into the House to Phoebe as Phillis told me, She came to me & told me Phoebe sent her for that Thing that She sent me for, and thereupon I gave Phillis the Paper. _Qu:_ How was your Master poisoned with these Powders? _Answr._ Phoebe & Phillis told me that they used them for that End. _Qu:_ When did they tell you this? _Answr._ The next Day after my master died. _Q:_ Were they together when they told you So? _Answr._ No, Phillis told me of it first, and said that Phoebe used all that I brought first, that Way; and that the last was used so too by her and Phoebe; and then I went to Phoebe and ask'd her about it, and She denyed it at first but when I told her that Phillis had told me all about it, then she owned it. _Quest._ Had you no Reason before your sd. master dyed to think that the Powders you had of Robbin were given to your master or that he was poison'd therewith? _Answr._ No other Reason than hearing Phoebe the Saturday night before master died ask Phillis, if she had given him enough, to which she replyed, yes. I have given him enough, and will stick as close to him as his shirt to his back; but who she meant I did not then know, nor untill after master died. _Quest._ Was there no Discourse had between you Phoebe & Phillis about getting more Poison, after you had the first, of Robbin? _Answ._ The Fryday before my master died Phoebe told me that she had lost that stuff that I had brought to her from Robbin, and desired me to get her some more. I told her I wou'd when I went over to Boston; this was in the Forenoon, when she was washing in the back yard. _Quest._ Did you get her any more of Robbin? _Ansr._ Yes, and that was it which I gave to Phillis _Quest._ When did you go over to get the last Poison? _Ans._ on the Saturday night before my master died; I went over after Sunset; I went directly to Robbin; & told him I wanted some of the same I had of him before for that was lost, Robbin was then at the Corner of his master's House out in the street, he told me he could not get any then, but if I wou'd come on the Sabbath Day night he would let me have some, and I went to him on the Sabbath Day night after Candle Light, and he then gave it to me. _Quest._ Was there any Body with you on the Saturday night when you ask'd for the Poison, or do you know whether any Person saw you & Robbin together that Evening? _Answr._ No, nobody was there, and I dont know that any Body saw us together that Evening. _Quest._ How long was you with Robbin at Mr. Harris's Work house? _Answr._ I made no tarry there, but left him at the Pot house, and he and the young man that was with him followed me and overtook me a little below Mr. Waite's Slaughter house; And they went with me into the Lane leading from the market Place to the long Wharffe near Mrs. Shearman's, while I went into Mrs. Shearmans and got a mug of Toddy, in the mug I brought from Mr. Harris's Work house, and I carried it to them and they both drank with me. _Quest._ Had you any Discourse with Robbin in private or between you and him alone that Day? _Ansr._ No, none at all. _Quest._ Where did you drink the Toddy? _Answr._ In the Lane aforesd. _Quest._ Where did you all go after you drank the Toddy? _Answr._ We all came away together & went thro' Mr. Sprague's Yard & so thro' Mrs. Silence Harris's yard & Entry into the street. and they went directly down to the Ferry and I went into my master's Yard with the Pots I brought from the Potters Work house. _Quest._ Did you then go with them to the Ferry or nearer to it than your master's House? _Answr._ No, I did not. _Quest._ Did Robbin give you, or did you give Robbin any Thing between the Time of your coming out of Mr. Harris's Entry and his going over the Ferry? _Answr._ No, I did not give him any Thing neither did he give me any Thing. _Quest._ After you had parted with him when you came thro' the Entry, did you call him back? _Answr._ No, I did not. _Quest._ Did your master that Day forbid Mrs Shearman's letting you have any more Drink? _Answr._ Yes, my master told her not to sell any Drink to any of his Servants. _Quest._ Did Robbin know of it? _Answr._ Not that I know of; he see master go into Mrs. Shearman's Shop, and pass'd by Robbin in the Lane as Robbin told me. _Quest._ Did you ever apply to any body else, besides Robbin for Poison? _Answr._ No, only to Carr, Doctr. Gibbon's negro man, and then Phoebe sent me for it. She had been with Carr before on the same account, & he told her he cou'd not get her any then, as she told me; _Quest._ Did you get any Poison of Carr? _Ansr._ No, he told me he wou'd not let me have any, untill he had seen Quaco, and did not know whether he shou'd then or not, and I never went to him afterwards. _Quest._ Did you never ask Doctr. Rand's Cato for any Poison? _Answr._ No, I do not know that I ever did, in the World. _Quest._ Had you and Phoebe any Conversation together about your master in or near your Blacksmith's Shop or in the yard the Monday before your master died? _Answr._ I had not, that I know of. _Quest._ Did you that Day before Tom or any other of your master's Servants say that you knew that your master would dye or utter any Words to that effect? _Answr._ No, I did not. The Day before master dyed, Phoebe came into the Shop to dress Tom's Eye & got to dancing & mocking master & shaking herself & acting as master did in the Bed; And Tom said he did not care, he hop'd he wou'd never get up again for his Eye's sake, and Scipio was there at the same time and saw her. _Quest._ Did you ever Say that your master had been offer'd £400 for you but wou'd not take it, and now he shou'd not have a farthing or Words to that effect? _Answr._ No I never said any such Thing. MARK.[1] [Footnote 1: Mark signed his deposition here, and the entry, "continued," was made at the end of the sheet; the next sheet beginning, "Mark's Examination, continued."] _Quest._ Did you ever tell Phoebe or Phillis that the Week before your master dyed, that you went over the Ferry to see Robbin to get some more Poison, and that he came over the Ferry in another Boat and so you mist each other and that he Robbin pretended to the Ferry-man that he was a Country negro and wanted to see you about your Child, or Words to that Effect? _Answr._ I never told them or either of them so. _Quest._ How came that Viall buried near your Forge in the Black-Smith's Shop, that you told Mr. Kettell of, and he found there? _Answr._ I buried it there. _Quest._ When did you bury it there? _Answr._ In the afternoon of that Day that master dyed. _Quest._ Where did you get that Vial? _Answr._ I took it from Phillis that same Afternoon. _Quest._ Did any body see you take it from her? _Answr._ No. When I took it from Phillis she own'd that Phoebe had given the first Poison that I brought to master; and that she and Phoebe had given him all the Rest saving what was then in the Bottle. and thereupon I went to Phoebe and charged her with it, she at first deny'd it, but at last own'd it it and begg'd me to say nothing about it; I told her if I had known she wou'd have put it to that use I would not have got it for her; then I call'd Pompey to go down to the shop with me for I wanted to speak with him, intending to shew him the Vial, and he came into the shop but before I had an opportunity to speak to him Mr. Kettell took me. _Quest._ Where was the Vial when you talked with Phoebe as aforesd? _Answr._ I had it in my Pocket, and told her so, then I went into the shop and buried it, then I went into the House immediately to call Pompey to shew it to him. _Quest._ Why did you bury the Vial before you called Pompy? or shew it to any body? _Answr:_ I buried it because I did not want any body should see it before I shewed it to him. _Questn._ Have you lately had any Potters powder'd Lead by you or in your Possession? _Answr._ Only that I had from Essex Powars; which was as I suppose ground to Powder. _Quest._ When did you get that powder'd Lead of Essex? _Ansr:_ I had it of him that Day I went there for six butter Pots, which my master's son Isaac sent me for. _Quest._ What did you get that Lead for? _Answr._ To see if it would melt in our Fire. upon a Dispute between Tom and I about it; Tom said it would melt, and I told him I did not believe it would; I carried it home and laid it upon the Wall Plate in the Blacksmith's shop, and I never moved it afterwards or thought any Thing about it, 'till it was show'd to me by the Justice. _Quet._ Do you know that any Part of that Lead you had of Essex or any Lead like unto it was given to your master or put into his Victuals or Drink? _Answr._ I do not. _Quest._ Do you know of any Proposal made of poisoning your master? _Answ._ No, I do not, nor ever heard any such Thing proposed by any Body. _Quest._ Do you know of any Cushoe nuts being procured for that Purpose? _Answr._ No; I have not seen a Cushoe nut since I have been in this Country. _Quest._ Do you know of any Copperas or Green stuff being provided for that Purpose? _Answr._ No I do not. _Quest._ What Time on the Saturday before your master dyed was it that you heard Phoebe ask Phillis, if she had given him enough, and Phillis said she had, and would stick as close to him as his Shirt to his Back? _Answr._ In the afternoon about Dark; and before I went to Boston. _Quest._ How came you, after you had heard this Talk between Phoebe and Phillis, to get her sd. Phoebe more Poison? _Answr._ I did not know what she meant by their Talk, nor who they meant, by him. _Quest._ Did you tell Carr that Phoebe sent you for that Poison you applyed to him for? _Answr._ She did not tell me it was Poison, but told me to ask Carr for that Thing he had promised her; he said he knew what it was and would not send it, 'till he had talked to Quaco, and did not know that he should send it afterwards; and I said no more to Carr about it. _Quest._ Did you ever ask Carr at any other Time for Poison? _Ansr._ No. _Quest._ Did you never ask him for something to Poison or kill a Dog? _Answr._ No, not that I know of. _Quest._ Was you ever bit by a Dog? _Answr._ No. I never was. _Quest._ Do you know any Thing more of your master's being poisoned than you have before related? _Ansr._ No, I do not. MARK. [_Bill of Indictment._] [Sidenote: MIDDLESEX ss.] At His Majesties Superiour Court of Judicature Court of Assize and General Goal Delivery held at Cambridge in and for the County of Middlesex on the first Tuesday of August in the Twenty ninth Year of the Reign of George the Second by the Grace of God of Great Britain France & Ireland King Defender of the Faith &c. The Jurors for the said Lord the King upon their Oath present That Phillis a Negro woman of Charlestown in the County of Middlesex Spinster Servant of John Codman late of Charlestown aforesaid Gentleman not having the Fear of God before her Eyes but of her Malice forethought contriving to deprive the said John Codman her said Master of his Life and him feloniously and Traiterously to kill and murder, She the said Phillis on the thirtieth Day of June last at Charlestown aforesaid in the Dwelling house of the said John there did of her Malice forethought willfully feloniously and Traiterously put a Deadly Poison called Arsenick into a Vial of water and thereby did then and there Poison the same Water----and that the said Phillis knowing the Water aforesaid to be so poisoned did then and there feloniously willfully traiterously and of her Malice forethought put one spoonfull of the Same Water so poisoned into a Pint of the Said John's Watergruel and thereby poison the Same Watergruel----And that the said Phillis did then and there of her malice forethought feloniously willfully and traiterously in manner as aforesaid poison the Watergruel aforesaid, with a felonious and Traiterous Intent and Design that the said John her said master then being should then and there eat the Same Watergruel so poisoned and thereby be poisoned killed & murdered----And that one Elizabeth Codman not knowing the Watergruel aforesaid to be so poisoned then and there Innocently gave the Same Watergruel so poisoned as aforesaid to the said John to eat-- And that the said John then and there being the said Phillis's Master and being altogether ignorant of the Watergruel aforesaid's being poisoned as as[2] aforesaid and Suspecting no Evil did then and there eat the same Watergruel so poisoned as aforesaid----And that the said Phillis then and there was feloniously and traiterously present with the said Elizabeth & John knowing of and consenting unto the said Elizabeth's giving him the said John the Watergruel aforesaid so poisoned as aforesaid and his eating the same as aforesaid----And that the said John by means of his eating the Watergruel aforesaid so poisoned as aforesaid There Languished for the space of fifteen Hours and then at Charlestown aforesaid Died of the Poison aforesaid given him as aforesaid----And So the Jurors aforesaid upon their Oath say that the said Phillis did at Charlestown aforesaid of her malice forethought in manner and form aforesaid willfully feloniously and traiterously poison kill & murder the said John Codman her said master against the Peace of the said Lord the King his Crown & Dignity. [Footnote 2: _Sic._] And the Jurors aforesaid upon their Oath further present That Mark a Negro man of Charlestown aforesaid Labourer and Servant of the said John Codman. And Robbin a Negro man of Boston in the County of Suffolk Labourer & Servant of John Clark of Boston aforesaid Apothecary before the said Treason and murder aforesaid committed by the said Phillis in manner & form aforesaid did at Charlestown aforesaid on the twentieth Day of June last of their malice forethought (the said Mark then being Servant of the said John Codman) feloniously & traiterously advise & incite procure & abet the said Phillis to do and commit the said Treason & Murder aforesaid against the Peace of the said Lord the King his Crown and Dignity. EDM TROWBRIDGE _Attr [Symbol: Per] Dom Rege._ This is a True Bill. CALEB DANA _foreman_. * * * * * The case was tried, at the same term at which the parties were indicted, before Stephen Sewall, chief justice, and Benjamin Lynde, John Cushing, and Chambers Russell, associate justices,--all fairly read in the law, and the Chief Justice eminent in his profession. Samuel Winthrop and Nathaniel Hatch, jointly, were clerks of the court.[3] [Footnote 3: This is assumed to be the case, since both these clerks officially signed papers in this very case, though, from the loose custom which gradually obtained with the clerks of our highest judicial court, of not recording their appointments, it is impossible to verify this statement by the record. Samuel Tyley, Jr., and Benjamin Rolfe were sworn in as joint clerks of this court, Feb. 26, 1718, and Samuel Winthrop was clerk as early as June, 1745, and Nathaniel Hatch as early as September, 1752.] Mark and Phillis were convicted, and sentence of death was pronounced upon them in strict conformity to the common law of England. On the 6th of September, a warrant for their execution was issued, under the seal of the court, commanding Richard Foster, Sheriff of Middlesex, to perform the last office of the law, on the 18th of the same month; and upon this warrant the sheriff made return upon the day of the execution. The subpoenas to the witnesses against the accused, the caption and conclusion of the record of the case, and the warrant for the execution of the condemned are as follows:-- PROVINCE OF THE } _George the Second by the Grace of God of Great MASSACHUSETTS BAY, } Britain France & Ireland King Defender ss. } of ye Faith &c._ To the Sheriff of our County of Middlesex his under SEAL. Sheriff or Deputy or to any Constable of the Town of Charlestown within Said County, Greeting-- We Command you That you Su[=m]on Wm. Brattle Esqr Docter Pinchin of Boston Joseph Rand Junr. Hatter Bartholomew Powers Isaac Rand Phisitian Wm. Kneland, Benjn. Codman Parnel Codman Elizh. Codman Mary Codman Ann Codman Catherine Codman, Pompey Thomas Cuffee and Scipeo negro servants that were Jno. Codman Decd. James Kittle Wm. Foster Phisitian Essex Servant to thomas powers Servt. of Dr. Rand Dinah Servt. of Richd. Foster Esqr Ruth Adams To appear Before our Justices of our Superiour Court of Judicature Court of Assize and General Goal Delivery now held at Cambridge within & for said County tomorrow at Eight of ye Clock before noon to give Such Evidence in our Behalf (as you know) against Mark a Negro man & Phillis a Negro woman both of Charlestown aforesaid-- Hereof fail not and so soon as may be make return of this Writ with your Doings Therein into the same Court Witness Stephen Sewall Esq. at Boston the sixth Day of August in the twenty ninth year of our Reign Annoq. Domini 1755 SAML WINTHROP _Cler_ [_Endorsed Return._] MIDDLESEX ss. August 7, 1755 We have somoned the persons within named to appear & Give Evidence at the time & place within mentioned. JAMES KETTELL, _Dept Sheriff_, & JOHN MILLER _Constabel_. PROVINCE OF THE } _George the Second by the Grace of God of MASSACHUSETTS BAY ss } Great Britain France & Ireland King Defender of the Faith &c._ To the Sheriff of our County of Suffolk his under Sheriff SEAL. or Deputy or to any Constable of the Town of Boston in sd. County Greeting We Command you that you Summon The Wife of Ichabod Jones Eliza. Mercy Car, a negro man servant of John Gibbins Apothecary Quaco the servt. of ---- Dalton Quaco a Negro man belonging to mr. John White To appear before our Justices of our Superiour Court of Judicature Court of Assize & General Goal Delivery now holden at Cambridge within and for said County Tomorrow morning at Eight of ye Clock before noon Then and there to give Such Evidence in our Behalf as you know against Mark a Negro man & Phillis a Negro woman both of Charlestown in our County of Middlesex-- Hereof Fail not and so soon as may be make Return of this Writ with your Doings therein into the same Court Witness Stephen Sewall Esq. at Boston the Sixth Day of August in the twenty ninth year of our Reign Annoq, Domini 1755 SAML WINTHROP _Cler_ [_Record of the Case._] PROVINCE OF THE } _Anno Regni Regis Georgii secondi Magnæ MASSACHUSETTS BAY } Britanniæ Franciæ Hiberniæ vicesimonono._ MIDDLESEX ss. } At his Majestys Superiour Court of Judicature Court of Assize and General Goal Delivery began and held at Cambridge within and for the County of Middlesex on the first Tuesday of August Annoque Domini 1755-- By the Honoble. Stephen Sewall Esqr: Chief Justice Benjamin Lynde[4] } John Cushing & } Esquires Justices Chambers Russell } [Footnote 4: Judge Lynde makes a memorandum of this trial, and of the particulars of the executions, in his diary under date of July 9, 1755.--Lynde Diaries (privately printed, 1880), p. 179.--EDS. OF PROCEEDINGS.] [_After reciting the words of the indictment, the record proceeds as follows, being, as far as where the record of the trial and sentence begins, an extension of a memorandum on the indictment._] Upon this Indictment the said Phillis was arraigned and upon her arraignment pleaded not guilty and for trial put herself upon God and the Country and the said Mark was also arraigned upon this Indictment and upon his arraignment pleaded not Guilty and for trial put himself upon God and the Country, a Jury was thereupon Sworne to try the issue Mr. John Miller Foreman and fellows who having fully heared the Evidence went out to consider thereof and returned with their verdicts and upon their oath's say'd that the said Phillis is Guilty, and that the said Mark is Guilty, upon which the prisoners were remanded, and being again brot and set to the Bar, the Kings Attorney moved the Court that Judgment of Death might be given against them, whereupon they were asked by the chief Justice if they had ought to say why Judgment of Death should not be given against them, and having nothing material to offer Judgment of Death was pronounced against them by the chief Justice in the name of the Court in form following that is to Say that the said Phillis go from hence to the place where she came from, and from thence to the place of Execution & there be burnt to Death, and that the said Mark go from hence to the place where he came from, and from thence be drawn to the place of Execution and there be hanged by the neck until he be dead and God Almighty have mercy upon their Souls. Ordered that these Sentences be put into Execution upon thursday the eighth[5] day of September next between the hours of one and five of the Clock in the Afternoon. [Footnote 5: An error. It should have been "eighteenth."] Warrant issued Sep. 6. 1755. [_Writ of execution, or death-warrant._] PROVINCE OF THE } _George the second by the Grace of God of MASSACHUSETTS BAY } Great Britain France and Ireland King MIDDLESEX ss. } Defender of the Faith &Ca_ SEAL. To Richard Foster Esqr. Sheriff of our County of Middlesex in Said Province Greeting Whereas at our Superiour Court of Judicature Court of Assize and General Goal Delivery begun and held at Cambridge within and for the County of Middlesex on the first Tuesday of August last the Grand Jurors for us for the Body of our said County of Middlesex did on their Oath Present That Phillis a Negro woman of Charlestown in the County of Middlesex Spinster Servant of John Codman late of Charlestown aforesaid Gentleman, not having the fear of God before her Eyes, but of her malice forethought contriving to deprive the Said John Codman her Said master of his life and him feloniously and Traiterously to kill and murder, she the said Phillis on the thirteenth day of June last at Charlestown aforesaid in the dwelling house of the said John there did of her malice forethought willfully felloniously and Traiterously put a Deadly Poison called Arsenick into a Vial of Water and thereby did then and there Poison the same water--and That the said Phillis knowing the water aforesaid to be so poisoned did then and there feloniously willfully traiterously and of her malice forethought put one spoonfull of the same water so poisoned into a pint of the said John's watergruel and thereby poison the same watergruel--and that the said Phillis did then and there of her malice forethought felloniously willfully & traiterously in manner as aforesaid poison the watergruel aforesaid, with a felonious and traiterous Intent and design that the said John her said master then being should then and there eat the Same Watergruel so poisoned and thereby be Poisoned killed and murdered. And that one Elizabeth Codman not knowing the watergruel aforesaid to be so poisoned then and there Innocently gave the Same Watergruel so poisoned as aforesaid to the Said John to eat, and that the Said John then and there being the said Phillis's master and being altogether Ignorant of the watergruel aforesaid's being poisoned as aforesaid and suspecting no Evil did then & there eat the same watergruel so poisoned as aforesaid & that the said Phillis then and there was feloniously and traiterously present with the said Elizabeth & John knowing of & consenting unto the sd. Elizabeth's giving him the said John the watergruel aforesd. so poisoned as aforesaid & his eating the same as aforesd. And that the said John by means of his eating the watergruel aforesaid so poisoned as aforesaid there Languished for the space of Fifteen hours & then at Charlestown aforesaid died of the Poison aforesd. given him as aforesaid--and so the Jurors aforesaid upon their Oath said that the said Phillis did at Charlestown aforesaid of her malice forethought in manner and form aforesaid willfully feloniously and traiterously poison kill & murder the said John Codman her Said master against our Peace Crown & Dignity, and The Jurors aforesaid upon their Oath further present That Mark a Negroman of Charlestown aforesaid Labourer and Servant of the said John Codman before the said Treason and murder aforesaid committed by the said Phillis in manner and form aforesaid did at Charlestown aforesaid on the twentieth day of June last of his malice forethought (the said Mark then being Servant of the said John Codman) felloniously & traiterously advise and incite procure & abet the Said Phillis to do & commit the said Treason & murder aforesaid against our peace crown & Dignity (as in Said Indictmt. is at large Set forth) upon which Indictment the said Phillis and Mark were Severally arraigned and upon their arraignment Severally pleaded not Guilty and for Tryal put themselves on God and the Country, and Whereas the said Phillis & Mark at our Court aforesaid were each of them convict of the crime respectively alledg'd to be committed by them as aforesaid by the Verdict of twelve good & lawful men of our Said County and were by the consideration of our Said Court adjudged to Suffer the Pains of Death therefor; as to us appears of Record Execution of which said Sentence doth still remain to be done we command you therefore that on Thursday the Eighteenth day of September instant between the hours of one & Five o'Clock in the day time you cause the said Phillis to be drawn from our Goal in our County of Middlesex aforesaid (where she now is) to the place of Execution and there be burnt to Death & also that on the Same day between the hours of one & five of the Clock in the day time you cause the Said Mark to be drawn from our Goal in our County of Middlesex aforesaid (where he now is) to the place of Execution & there be hanged up by the Neck until he be dead, & for so doing this shall be your Sufficient Warrant--Hereof fail not; and make Return of this writ with your doings therein into the Clerks Office of our Said Court as soon as may be after you have Executed the Same Witness Stephen Sewall Esqr: at Boston the sixth day of September in the Twenty ninth Year of our reign Annoque Domini 1755-- By Order of Court NATHANIEL HATCH _Cler_ MIDDLESEX. ss--September the 18th. 1755. I Executed this warrant as above directed, by causing Phillis to be burnt to Death, and Mark to be hang'd by the neck until he was dead, between the hours of one and five a Clock of Said day-- RICHD. FOSTER _Sheriff_ * * * * * It is worthy of observation that no such process as a formal warrant was required for a capital execution by the laws of England. In the King's Bench, the prisoner was committed to the custody of the marshal at the beginning of the trial, and an award of judgment upon the record was all the authority that that officer had for the execution. Formerly, it was customary in courts of oyer and terminer, and of jail delivery, to authorize the execution by a precept under the hands and seals of three or more commissioners, of whom one, at least, should be of the quorum; but this custom had become obsolete at the time of this trial, and only a calendar, or abstract of the record, subscribed by the judge, was put into the hands of the sheriff for this purpose; and such is the practice in England, I presume, to this day. Even Blackstone, who is so blind to many gross imperfections in the jurisprudence of his native country, is forced to remark, in view of the looseness of procedure in capital cases,-- "It may certainly afford matter of speculation that in civil causes there should be such a variety of writs of execution to recover a trifling debt, issued in the king's name, and under the seal of the court, without which the sheriff cannot legally stir one step; and yet that the execution of a man, the most important and terrible task of any, should depend upon a marginal note."[6] [Footnote 6: Comm. book iv. ch. 32, p. 403.] The courts and people of New England were always more mindful of the sacredness of human life than those of other nations, save, perhaps, the little community of the Netherlands. They also attached great importance to the formal proceedings by which the ends of justice were reached in criminal cases. This is well illustrated by an incident that is recorded relative to the action of the judges of the Superior Court of the Province when, after the conviction of Richardson for the murder of the boy Sneider, in 1770, it became evident to them that the cause of justice required that they should intercede to prevent his execution. They were long in doubt as to the sufficiency of a pardon obtained from the crown through the recommendation of the Lieutenant-Governor upon their certificate of its propriety, the only evidence of the pardon being its insertion in the Newgate Calendar. Hutchinson relates that "they were at length satisfied; and the prisoner having been brought into court early in the morning, when scarcely anybody but the officers of the court were present, pleaded his Majesty's pardon, and was discharged, and immediately absconded."[7] [Footnote 7: Hist. Mass. Bay, vol. iii. p. 287, n.] But, to proceed with a definition of the crime committed by these negroes, and a more particular account of the punishment for petit treason:-- By the statute 25 Edw. III., this crime, which had had a wider application, was restricted to three classes of cases: 1, where a servant killed his master or mistress; 2, where a wife killed her husband; 3, where a clergyman killed his prelate, or the superior to whom he owed canonical obedience. The sentence in the case of a woman was, that she be burned to death, and in the case of a man, that he be drawn to the place of execution and there hanged by the neck until he be dead.[8] To mitigate the sufferings of felons at the stake, the executioner usually fastened one end of a cord to the stake, and bringing this cord around the neck of the woman, pulled it tightly the moment the torch was applied, and continued the strain until life was extinct, which, unless the cord was sooner burnt asunder, generally happened before the condemned had suffered much from the intensity of the flames. [Footnote 8: By stat. 22 Hen. VIII. ch. 9, a person of either sex, who was convicted of murdering another by poison, was to be boiled to death, and the offence was, by the same act, declared high treason; but this act was repealed by 1 Edw. VI. ch. 12, after several executions under it, including that of Margaret Davy, who poisoned her mistress. Though by the common law poisoning was deemed a most atrocious circumstance, it did not alter the punishment of the principal crime involved. The law considered only the crime, and not the manner in which it was committed.] In cases of high treason, other barbarities were practised upon the bodies of the criminals, but these were frequently, and in cases of persons of distinction, generally, remitted. Indeed, even the hanging was dispensed with in these latter cases; and hence we read of the execution of great prisoners of state, male and female, by beheading, which, strictly, is a manner of death unknown to the laws of England, except as an incident to the principal penalty by hanging or burning. After the hanging, the body, according to rule, was to be cut down (if possible, while yet alive) to be eviscerated, then beheaded, and the trunk and limbs divided into four parts, to be disposed of as the sovereign should order. By special writ, under the privy seal, all these circumstances, except decapitation, were, as I have already said, usually omitted. All male persons convicted whether of high treason or of petit treason were, unless specially exempted in the manner I have stated, _drawn_ to the place of execution. This was originally an ignominious incident of the terrible penalty, and required that the criminal should be rudely pulled along over the ground, behind a horse; later, however, a hurdle or wicker frame, or a sledge,--that is, as we call it, a sled,--was used, either from motives of humanity, or in order to prolong the life of the traitor through subsequent stages of the punishment. According to Sir Matthew Hale, women were not to be drawn, in cases of petit treason, although the practice of later times, certainly, was to the contrary.[9] However, after the repeal in 1790, of the law for burning women, for which drawing and hanging were then substituted, women as well as men were sentenced to be drawn to the place of execution. [Footnote 9: The law was uncertain; but Hale appears to be the safest authority. Wood, in his Institutes,--at the time of this trial the most recent and popular treatise upon the laws of England,--states that women were to be drawn, in petit treason; as, indeed, do most, if not all, succeeding writers. They follow Coke, 3 Inst. 211; but neither the statutes referred to, nor the case cited from 12 Ass. 30, by the latter, support his statement. The report runs thus: "Alice _de W, qui fuit de l'age de xiij ans, fuit arse per judgment, pur ceo que el'avoit tue sa Maistres, & pur tant ceo fuit adjudge treason, &c._;" and it appears that the case turned upon the question of accountability, by reason of the tender age of the culprit. No mention of drawing is made in the judgment. Compare H.P.C., i. p. 382, and note, with Hawk. P.C., b. 2, ch. 48, § 6, and authorities there referred to, and Coke, _ut supra_. Also, see 4 Black. Comm. 204. It will have been noticed that though the judgment against Phillis was that she _go_ to the place of execution, the warrant required that she be drawn thither. The practice of drawing, in such cases, would have been challenged, probably, if the cruelties anciently incident thereto had not become obsolete.] Another incident to this punishment, though not peculiar to it, since it applied to all atrocious felonies, was the gibbeting, or hanging in chains. This was no part of the sentence, but was performed in accordance with a special order or direction of the court, given, probably, in most cases, verbally to the sheriff. After execution, the body of the felon was taken from the gallows and hung upon a gibbet conveniently near the place where the fact was committed, there to remain, until, from the action of the elements, or the ravages of birds of prey, it disappeared. Of the object of this ghastly feature of capital punishment it is alleged, "besides the terror of the example," "that it is a comfortable sight to the friends and relations of the deceased"; but the obviousness of this reason is somewhat lessened by the doubt in which we are left as to which deceased person, the criminal or his victim, is referred to. In the case of Mark it is noticeable that no sentence to the gibbet appears in the record, and I have found no order for it, or mention of it, in the papers on file. Phillis and Mark were executed at the usual place of execution in Cambridge; and the following account of the affair is taken from the Boston "Evening Post," of Sept. 22, 1755:-- "Thursday last, in the Afternoon, _Mark_, a Negro Man, and _Phillis_, a Negro Woman, both Servants to the late Capt. _John Codman_, of _Charlestown_, were executed at _Cambridge_, for poisoning their said Master, as mentioned in this Paper some Weeks ago. The Fellow was hanged, and the Woman burned at a Stake about Ten Yards distant from the Gallows. They both confessed themselves guilty of the Crime for which they suffered, acknowledged the Justice of their Sentence, and died very penitent. After Execution, the Body of _Mark_ was brought down to _Charlestown_ Common, and hanged in Chains, on a Gibbet erected there for that Purpose." Frothingham, in his "History of Charlestown,"[10] quotes this item from the "Post," and adds, from Dr. Josiah Bartlett's account of Charlestown,[11] that "the place where Mark was suspended in irons was on the northerly side of Cambridge Road, about one fourth of a mile above our peninsula." He also adds, from the same authority, that "Phebe, who was the most culpable," became evidence against the others, and that she was transported to the West Indies. [Footnote 10: Page 264.] [Footnote 11: 2 Mass. Hist. Coll., vol. ii. p. 166, and note.] It is very likely that Phebe was transported, as described by Dr. Bartlett, but there is nothing on record to show that she was used as a principal witness. Indeed, the answers of Phillis and Mark on their examination are mutually recriminative, and amount to a plenary confession of the crime of each. Besides, as neither the governor nor the court had any authority to grant a pardon for murder,[12] it is not likely that any favor was shown to her in accordance with a promise from either, nor is there any evidence that any lenity was actually extended to her, except the negative circumstance that she was not included in the indictment. [Footnote 12: See Hutchinson's Hist. Mass. Bay, vol. iii. p. 287, n. Instances of pardons and reprieves occur in our judicial history, but they were invariably granted in the name of the king, by the commander-in-chief; and, if for a graver offence than manslaughter, it seems to have been understood that a pardon was not to be granted without previous express direction from the king. This was in compliance with a clause in the royal instructions, issued to all the governors, by which they were enjoined not to remit any fines or forfeitures above £10 in amount, or to dispose of escheats, without the royal sanction; forfeiture of lands and chattels being a consequence of attainder upon conviction of the higher class of felonies. The commission to Andros expressly excepted treason and murder from the offences which he was authorized to pardon.] This completes the narrative of this remarkable case. The body of Mark is said by Dr. Bartlett to have remained on the gibbet "until a short time before the Revolution." Certain it is that when Dr. Caleb Rea passed through Charlestown on the first day of June, 1758, on his way from Danvers to join the regiment, of which he had been chosen surgeon, in the expedition against Ticonderoga, he found the body hanging, and, having examined it, recorded in his journal that "his [Mark's] skin was but very little broken, although he had hung there near three or four years."[13] [Footnote 13: Hist. Coll. Essex Inst., vol. xviii. p. 88, n.] Finally, another patriot,--Paul Revere,--in describing his famous ride on the 18th of April, 1775, on a still more important errand, says, "After I had passed Charlestown Neck, and got nearly opposite where _Mark was hung in chains_, I saw two men on horseback under a tree,"[14] &c.; thus alluding to the site of the gibbet as a place well known at that time,--as undoubtedly it was, to all the country round. [Footnote 14: Letter of Colonel Revere to Cor. Sec. of Mass. Hist. Soc., Jan. 1, 1798: 1 Mass. Hist. Coll., vol. v. p. 107.] I have said that this is the only case of petit treason to be found in our records. There was, indeed, an earlier case in which the penalty of death by burning was inflicted; but in regard to that case there is no suggestion anywhere to my knowledge that the crime of petit treason had been committed, nor any allegation to that effect in the charge or indictment, nor even a hint that any life was lost by the misconduct of the condemned.[15] This was the case of Maria, a negress, who was executed at Roxbury in 1681. Perhaps it will be well to give the story of this case as it appears on the records of the Court of Assistants.[16] [Footnote 15: Although the record contains no allegation of loss of life, Increase Mather states in his diary, under date of Sept. 22, 1681, that a child was burnt to death in one of the houses set on fire by this negress. Even if this were true, it is not probable that the relation of master and servant subsisted between the deceased and Maria, and neither this relation, nor the fact of treason, is averred in the indictment. See Mass. Hist. Soc. Proc., vol. iii. p. 320.] [Footnote 16: Boston, Sept. 6, 1681.] "Marja[17] Negro Servant to Joshua Lambe of Roxbury in the County of Suffolk in New England being presented by the Grand Jury was Indicted by the name of Marja Negro for not hauing the feare of God before hir eyes & being Instigated by the divil at or upon the eleventh Day of July last in the night did wittingly willingly & felloniously set on fier the dwelling house of Thomas Swann of sd Roxbury by taking a coale from vnder a still & carrjed it into another Roome and layd it on floore neere the doore & presently went & crept into a hole at a back doore of thy master Lambs house & set it on fier also taking a liue coale betweene two chips & carried it into the chimber by which also it was Consumed as by yr Confession will appeare Contrary to the peace of our Soueraigne Lord the king his croune & dignity the lawes of this Jurisdiction in that Case made & prouided title firing of houses--The prisoner at the barr pleaded & acknowledged hirselfe to be Guilty of ye fact. And accordingly the next day being Again brought to the Barr had sentenc of death pronnonc't agt hir by the Honnoble Gouñor. that she should Goe from the barr to the prison whenc she came & thence to the place of execution & there be burnt.--Ye lord be mercifull to thy Soule sd ye Gov." [Footnote 17: I have followed Secretary Rawson in his peculiar use of the letter j. See many similar instances in the Mass. Colony Records.] The case was capital under the act referred to in the record. The act reads as follows:-- [Sidenote: Burning Houses.] [Sidenote: Capital.] And if any person of the age aforesaid, [16 years and upwards] shall after the publication hereof, wittingly and willingly, and felloniously, set on fire any _Dwelling House_, _Meeting House_, _Store House_, or shall in like manner, set on fire any _out-House_, _Barn_, _Stable_, _Leanto_, _Stack of Hay_, _Corn or Wood_, or any thing of like nature, whereby any _Dwelling House_, _Meeting House or Store House_ cometh to be burnt, the party or parties vehemently suspected thereof, shall be apprehended by Warrant from one or more of the Magistrates, and committed to Prison, there to remain without Baile, till the next Court of Assistants, who upon legal conviction by due proof, or confession of the Crime, shall adjudge such person or persons to be put to death, and to forfeit so much of his Lands, Goods or Chattels, as shall make full satisfaction, to the party or parties damnified. [1652.][18] [Footnote 18: Mass. Colony Laws, ed. 1672, p. 52.] It will be observed that the law prescribes no such punishment as was ordered by the Assistants, and how the court were satisfied of the legality of their sentence is to me inexplicable, except upon the possible claim that they might rightfully exercise the expansive discretion which they applied to the case of the first Quakers, and so supply a deficiency in the ordinances of the General Court, by administering the _lex talionis_[19] in this particular instance as a necessary terror to evil-doers. [Footnote 19: Exodus xxi. 25. "In all criminall offences, where the law hath prescribed no certaine penaltie, the judges have power to inflict penalties, according to the rule of God's word."--Declaration of the General Court: Hutch. Coll. Papers, p. 207. And see the first article of the Colonial "Liberties," in Mass. Hist. Coll., vol. viii. p. 216.] The public opinion which permitted the colonial magistrates to exercise, unchallenged, a discretion not given to them by positive law, as in this case and that of the first Quakers, and in the instance of their conviction of a capital crime, of Tom, the Indian, in 1674,[20] of whose guilt the jury were doubtful, cannot be deemed to have enlarged their authority, by _custom_, without a perversion of language and a disregard of fundamental distinctions relative to the nature and source of law.[21] [Footnote 20: Records of the Court of Assistants, 1674, p. 14.] [Footnote 21: By the stat. 8 Hen. VI. ch. 6, the burning of houses, after a threat to do so if money be not paid, &c., was made high treason, and the incendiary suffered as any other traitor; that is, if a woman, she was burned to death. But this statute was repealed in the reign of Edward VI., as regards the treason, and the offence remained felony as at the common law, and punishable by hanging only. That mistaken notions as to the nature of penalties to be inflicted in criminal cases, and as to the authority of the bench to impose unusual punishments, were not solely entertained in this distant colony, and among men not bred to the law, may be shown by many instances in the English law-books. One of the most notable is Sir Edw. Coke's reference to the case of Peter Burchet, a prisoner in the Tower,--who slew his keeper with a billet of wood, which drew blood,--as an authority for inflicting the additional punishment of cutting off the hand (under the stat. 33 Hen. VIII.) in the case of murder perpetrated in the king's palace, when attended with bloodshed. In Elderton's case, Chief Justice Holt, whose habits of thorough research were not less remarkable than his absolute fairness and honesty, said, "I have searched for the case cited [as Jones's case] about killing a man in the Tower. It is Burdelt and Muskett's case. Being dissatisfied with my Lord Coke's report of it, therefore I sent for the record, ... and there is judgment of death given, but no judgment that his right hand should be cut off. It is indeed so related in Stowe's Chronicle, and in fact his hand was cut off, but there was no judgment for it." Compare 3 Inst., ch. 65 (p. 140 [Symbol: dagger]) with 2 Ld. Raym., 978, 982.] Two other negroes who were suspected of complicity with Maria were ordered to be transported. The record is as follows:-- [Sidenote: "Chessaleer negros Sentence"] Chessaleer negro servant to Tho. Walker brickmaker now in Goale on suspition of Joyning wth Marja Negro in Burning of Dr Swans' & ---- Lambs houses in Roxbury in July last The Court on Consideration of the Case Judged it meet to order that he be kept in prison till his master send him out of the country & then dischardg ye charges of Imprisonment wch if he refuse to doe aboue one moneth the country Tresurer is to see it donne & when ye chardges be defrayd to returne the ouerplus to ye sd Walker [Sidenote: James Pembertons negro sentence] The like Judgment & sentenc was declard against James Pemberton's negro in all respects as agt Chessaleer negro &c.[22] [Footnote 22: Record of the Court of Assistants, _ubi supra_, pp. 138, 139.] Still another negro was convicted, at the same term of the court, of the crime of arson, and ordered to be hanged, and afterwards consumed to ashes in the same fire with Maria, as appears by the following record:-- [Sidenote: Jack negro Jndicted & sentenc] "Jack negro servant to Mr Samuel Woolcot of Weathersfield thou art Jndicted by the name of Jack Negro for not hauing the feare of God before thy eyes being Instigated by the Divill did at or upon the foureteenth day of July last 1681 wittingly & felloniously sett on fier Leifteñat Wm Clarks house in North Hampton. by taking a brand of fier from the hearth and swinging it vp & doune for to find victualls as by his confession may Appeare Contrary to the peace of our Soueraigne Lord the King his Croune & dignity the lawes of God & of this Jurisdiction in that case made & prouided title firing of houses page (52) to wch Jndictment at the barr he pleaded not Guilty, & Affirmd he would be trjed by God & the Country and after his Confessions &c were read to him & his owni[=g] thereof were Comitted to the Jury who brought him in Guilty and the next day had his sentence pronounct agt him by the Gouernor that he should goe from the barr to the place whence he came & there be hangd by the neck till he be dead & then taken doune & burnt to Ashes in the fier wth Marja Negro--The Lord be mercifull to thy soule sajd the Gouernor"[23] [Footnote 23: _Ibid._] There was some excuse for the latter part of this sentence, for since the offence was an atrocious felony, such as in England would subject the offender to an infamous punishment, it seemed proper to attach something more of ignominy to his sentence than the mere execution by hanging. Our forefathers of the colonial period regarded the Mosaic law as of too sacred obligation to be impaired in the least degree; much more to be expressly contravened by the courts of justice in respect to the command,-- "And if a man have committed a sin worthy of death, and he be to be put to death, and thou hang him on a tree, his body shall not remain all night upon the tree, but thou shalt in any wise bury him that day; (for he that is hanged is accursed of God;) that thy land be not defiled, which the Lord thy God giveth thee for an inheritance."[24] [Footnote 24: Deut. xxi. 22, 23.] --they, therefore, by an ordinance passed in 1641, had required that the body of every executed criminal should be buried within twelve hours after death, except in cases of anatomy, which prevented the possibility of hanging in chains after the English fashion; and the only way in which they could set a mark of infamy upon the deceased criminal, without a breach of the colonial ordinance as well as of the divine law, was to burn the body.[25] [Footnote 25: The ordinary punishment for all capital felonies during the colonial régime seems to have been simply hanging. Heretics and witches were subjected to no severer penalty; and in 1674, Robert Driver, who was convicted of murdering his master, Robert Williams of Piscataqua, and who thus incurred the penalty for petit treason, was sentenced to be "hanged by the neck until he be dead."--See Records of the Court of Assistants.] But this tendency to a strict adherence to the laws of Israel disappeared early in the provincial period, under the operation of the same causes which led to the abandonment of those rugged metaphrases of the Psalms of David, and of the song of Deborah and Barak, &c., contained in the Bay Psalm-Book, for the smoother though less literal version of Tate and Brady and the presumptuous "Imitations" of Dr. Watts. When, therefore, under the new charter the offence called for it according to the custom of England, the gibbet was erected; and though the occasions for its employment were very rare, the report of sundry instances of its use has come down to us, as in the case of the pirates whose bodies hung in chains, from time to time, on the now vanished Bird Island in Boston Harbor, a locality as near the place where the fact was committed as could conveniently be used. I confess I find it impossible to understand whence the provincial judges claimed to derive their authority for ordering the bodies of criminals to be hung in chains. We have seen that, even if our fathers brought with them the right to exercise this authority, they soon enacted provisions entirely inconsistent with the practice; and I am not aware of any subsequent act of parliament, extending to the Colonies, that restored the authority; and certainly there was no law of the Province to that effect. I ought not to dismiss this subject without adding something to the brief allusion already made to the comparative mildness of the laws of Massachusetts in respect to capital punishment. The execution of Mark and Phillis took place just about the time that Blackstone was delivering his lectures at Oxford, which have since given him an enduring and world-wide fame as a commentator on the laws of England. This elegant defender and apologist for English laws and customs, in his commentaries, admits, seemingly with reluctance and regret, that there then existed on the statute-books of England no less than one hundred and sixty capital offences. At that time the number of capital offences in Massachusetts was less than one-tenth this number, if we exclude those made so by the acts relating to military offenders in actual service, and felonies on the high seas, and a few others, which, like the latter, were created by including among capital crimes certain offences which, though theretofore exempt from the death penalty by special circumstances and technical rules, had always been capitally punished when committed under other and not less justifiable circumstances. Said Isaac Backus, whom I find to be a very trustworthy authority, in a letter to this Society, under date of Feb. 20, 1794, "There has not been any person hanged in Plymouth County for above these sixty years past."[26] More than a century earlier, John Dunton mentions a sermon of Mather's, preached at the execution of "Morgan, the only person executed in that country [Massachusetts] for near seven years."[27] He must, however, I think, have forgotten the case of Maria, the negro woman. [Footnote 26: 1 Mass. Hist. Coll., vol. iii. p. 152.] [Footnote 27: _Ibid._, 2d series, vol. ii. p. 102.] Again, when the English riot act (1 Geo. I. stat. 2, ch. 5) was substantially adopted by the Province in 1751, the legislature studiously avoided the harshness of the former act by substituting forfeiture of lands and chattels, and whipping and imprisonment, for the death penalty.[28] [Footnote 28: Compare provincial statute 1750-51, ch. 17 (Prov. Laws, vol. iii. p. 540), with the act of parliament referred to.] In 1761 Governor Bernard vainly labored with his utmost zeal to secure the passage of an act or acts making it felony, without benefit of clergy, to forge public and private securities or vouchers for money, or to coin or counterfeit the current money of the Province. He sent a special message upon the subject to the Assembly, in which he stated:-- "In regard to the popular prejudices against capital punishments which have hitherto prevailed in this country, I shall only say that at present they are very ill-timed. Whilst the people of this country lived from hand to mouth, and had very little wealth but what was confined among themselves, a simple system of laws might be proper, and capital punishments might in a great measure be avoided; but when by the acquisition, diffusion, and general intercourse of wealth, the temptations to fraud are abundantly increased, the terrors of it must be also proportionably enlarged; otherwise if, through a false tenderness for wicked men, the laws should not be sufficient to protect the property of the honest and industrious, the rights of the latter are given up to the former, and the undue mercy shown to the one becomes a real injury to the other. To instance this, I need only say that I have no doubt but that if these crimes had been capital some years ago, and usually punished as such, they would not have been committed at all at the present time." The Governor's opinion, however, was not borne out by the experience of the British government in its dealings with crime. There, it was made a capital felony to steal in a dwelling-house to the amount of 40_s._, or, privately, in a shop, goods to the value of 5_s._, or to counterfeit stamps that were used for the sale of perfumery, or such as were used for the certificates of hair-powder; and yet, notwithstanding this severity, all who considered the subject thoughtfully found that the increase of capital crimes more than kept pace with the increase of laws creating them; and this became so alarmingly evident that at length the conservative opposition to reform was overborne, and Sir Samuel Romilly and his coadjutors began those changes which have continued in the same direction to the present day. Before the reform was established, however, executions became so frequent that it was not uncommon for citizens to avoid certain parts of London and its environs on account of the intolerable odor, there, of decaying human bodies, hung in chains by the highways and before the doors of citizens. Still the judges rode their circuits, leaving briefly minuted "calendars" in the hands of the executioners, who erected close behind them the gallows and the gibbet as monuments of their dispensation of "justice." Barristers bandied repartees and cracked jokes over good dinners, and serjeants hobnobbed with their brethren of the bench and of the coif, apparently unconcerned at the responsible part they were enacting in this awful drama; while the poor rabble put on their best attire on the days of execution, and liberally patronized the venders of cakes and ale who, near the gallows, erected booths as on other gala days,--many of the spectators, no doubt, thinking that it would not be so bad a thing, after all, if it came their turn next to better their desperate condition by swinging on the newly contrived gallows, on which ten criminals could be hanged together.[29] [Footnote 29: See a picture of the new gallows, in the illustrated "Newgate Calendar."] Alas! well may we ask with astonishment if it is possible that such a state of society really existed in the England of Hannah More, of Sir William Jones and Edmund Burke,--the land throughout which the Wesleys were preaching and singing to eager multitudes of the free grace and abounding mercy of God; where the pious Cowper was pleading for the relief of "insolvent innocence," and Clarkson and Wilberforce and Granville Sharp were rousing the public mind to the evils of slavery in distant colonies! The case of petit treason which we have been considering occurred nine years before Beccaria startled all Europe with "the code of humanity,"--his treatise on crimes and punishments; yet had he known of our experience in this Province, he could have pointed to Massachusetts as the strongest practical illustration of the truth of his theory, that it is not necessary to multiply extreme penalties in order to prevent crime, but that we are to look for the amelioration of manners and the diminution of public and private wrongs to the mental and moral education of the people rather than to the terrors of the law. In 1777, when the Revolutionary War was beginning to assume its gravest aspect, and when the hopes of traitors were reviving, the barbarous incidents of the punishment for treason were abolished by the legislature of Massachusetts, and this crime was made punishable simply by hanging. Eight years later the distinction between petit treason and murder was abolished,--an improvement of the criminal code in which we were followed by Great Britain five years later still.[30] [Footnote 30: The Massachusetts act is as follows:-- "Whereas it does not appear reasonable any longer to continue the distinction between the crimes of murder and petit treason: "Be it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same, That from and after the passing of this act, in all cases wherein heretofore any person or persons would have been deemed or taken to have committed the crime of petit treason, such person or persons shall be deemed and taken to have committed the crime of murder only, and indicted and prosecuted to final judgment accordingly; and the same punishment only shall be inflicted as in the case of murder.--[This act passed _March 16, 1785_.]"] So that it was possible that our good city of Boston might have been disgraced by one of these horrible executions as late as 1785, and that a delicate woman could, with all the solemnity of legal forms, have been publicly burned to death at Tyburn as late as 1790! In point of fact such executions occurred in England long after the burning of Phillis. A memorable case is that of Anne Beddingfield, who was burned for petit treason at Rushmore, near Ipswich, in 1763. In 1813 the last of the minor infamous punishments, such as whipping, branding, the stocks, the pillory, cutting off ears, slitting noses, boring tongues, &c., were abolished in this Commonwealth. As for hanging in chains, I cannot find when the custom was discontinued in Massachusetts. I do not remember to have read of an instance of this kind since the adoption of the Constitution, though I have made no special search for such an instance. Some of my hearers may be able to refer me definitely to the time and reason of the change. In England, by the stat. 25 Geo. II., ch. 35 (1752), which was three years before the execution at Cambridge, provision was made that hanging in chains should be included in the sentence to be pronounced by the court against all persons convicted of murder, and that the sentence should be executed on the next day but one after it was pronounced. This was changed by the stat. 9 Geo. IV., ch. 31, so as to give the court a discretion to order hanging in chains or dissection; and the next year this act was extended to Ireland. By the stat. 2 & 3 Wm. IV., ch. 75, the court was authorized to order the body to be hung in chains or buried; and, finally, by the stat. 4 & 5 of Wm. IV., ch. 26 (July 25, 1834), all laws requiring bodies to be hung in chains were repealed. No such sudden punishment as that prescribed by the act of parliament of the 25 Geo. II., could be legally inflicted here,--at least during the colonial period; for the colonial ordinance of 1641 required that four days at least should intervene between judgment and execution. The only barbarous treatment of the bodies of criminals authorized by law in Massachusetts since the adoption of the Constitution, that I am aware of, was prescribed by the act of 1784, to discourage the practice of duelling, which revived some of the provisions of a law of the Province, passed in 1728, denying duellists the right to be buried in a coffin, and requiring the coroner or executioner to see that their bodies be interred near the place of execution, or in the public highway, with a stake driven through them.[31] [Footnote 31: Compare act of June 30, 1784, with Prov. Stat. 1728-29, ch. 15: Prov. Laws, vol. ii. p. 516.] Now, happily, capital punishment is restricted in this Commonwealth and in England to two offences only; and while, here, even high treason is punishable simply by imprisonment, in England, strong efforts have been repeatedly made, and recently with a fair prospect of ultimate success, to induce parliament to imitate our example and take away the death penalty from this the highest crime known to the common law. 
27078	----	file was produced from images generously made available by the Library of Congress) 41ST CONGRESS, 1st Session. S. 6. IN THE SENATE OF THE UNITED STATES. March 5, 1869. Mr. ANTHONY asked, and by unanimous consent obtained, leave to bring in the following bill; which was read twice, and ordered to be printed. A BILL To provide stationery for Congress and the several departments, and for other purposes. 1 _Be it enacted by the Senate and House of Representatives 2 of the United States of America in Congress assembled_, 3 That upon the passage of this act the heads of each of the 4 executive and judicial departments at Washington, District of 5 Columbia, shall immediately cause estimates to be made of 6 the amount of stationery and other articles which will be 7 required by them for the ensuing year, which are now furnished 8 as stationery or under stationery contracts, and forward 9 the same to the Congressional Printer, who shall immediately 10 issue proposals for such articles and stationery and make 11 purchases of the same, in the manner and under the regulations 12 provided for in this act. 1 Sec. 2. _And be it further enacted_, That the Congressional 2 Printer shall, at the beginning of each session of Congress, 3 submit to the Joint Committee on Public Printing estimates 4 of the quantity of paper, of all descriptions, which will, in his 5 opinion, be required for the public printing during the ensuing 6 year; and also estimates of the quantity and articles of 7 stationery required for each and all of the executive and judicial 8 departments at Washington, and for the Senate and House of 9 Representatives and the Congressional printing office. 1 Sec. 3. _And be it further enacted_, That the heads of 2 the several executive and judicial departments, and the Secretary 3 of the Senate and Clerk of the House of Representatives, 4 shall, on or before the twentieth day of November, in 5 each year, furnish, or cause to be furnished, to the Congressional 6 Printer estimates of the articles and the quantity of each 7 which will be required for their several departments for the 8 year following. 1 Sec. 4. _And be it further enacted_, That the Joint Committee 2 on Public Printing shall then fix upon standards of 3 paper for the different descriptions of public printing, and for 4 all stationery and articles required, and the Congressional 5 Printer shall, under their direction, advertise in two newspapers 6 published in each of the cities of Boston, New York, 7 Philadelphia, Baltimore, Washington, and Cincinnati, and in 8 any other city where in their judgment it may become necessary, 9 for sealed proposals to furnish the government with 10 paper and all other articles of the quality and in the quantities 11 specified in the advertisement, which shall specify the 12 quantity and quality of all the articles required; and he shall 13 furnish to the applicants samples of the standard articles 14 which have been adopted. 1 Sec. 5. _And be it further enacted_, That the advertisements 2 for sealed proposals shall specify the minimum portion 3 of each article required for either three months, six months, 4 or one year, as the Joint Committee on Public Printing may 5 determine; but when the minimum portion so specified exceeds 6 in any case one thousand reams of paper, the advertisements 7 shall state that proposals will be received for one 8 thousand reams or more. 1 Sec. 6. _And be it further enacted_, That all sealed proposals 2 to furnish any article shall be opened in the presence 3 of the Joint Committee on Printing, and the contracts shall be 4 awarded by the committee to the lowest and best bidder for 5 each article or class for the interest of the government; but 6 they shall not consider any proposal which is not accompanied 7 by satisfactory evidence that the person making it is a manufacturer 8 or dealer in the articles which he proposes to furnish, 9 and the said joint committee shall, in their award of each contract, 10 allow and designate a reasonable time for filling it. 1 Sec. 7. _And be it further enacted_, That no contract 2 for furnishing paper or any other article shall be valid until it 3 has been approved by said joint committee, (if made under 4 their direction, or by the Secretary of the Interior, if made 5 under his direction,) according to the provisions of section 6 nine. 1 Sec. 8. _And be it further enacted_, That the Congressional 2 Printer shall compare all articles delivered by any contractor 3 with the standard of quality, and shall not accept any 4 article which does not conform to it; and in case of a difference 5 of opinion between the Congressional Printer and any 6 contractor with respect to the quality of any article furnished, 7 the matter of difference shall be determined by the Joint Committee 8 on Printing, or in the recess of Congress by the Secretary 9 of the Interior. 1 Sec. 9. _And be it further enacted_, That in default of 2 any contractor to furnish the articles contracted for at the 3 proper time, or of the proper quality or weight, the Congressional 4 Printer shall report such default to the Joint Committee 5 on Public Printing if Congress is in session, or to the 6 Secretary of the Interior if Congress is not in session; and 7 he shall, under the direction of the Joint Committee on 8 Public Printing, or of the Secretary of the Interior, as the 9 case may be, enter into a new contract with the lowest and 10 best bidder for the interest of the government among those 11 whose proposals were rejected at the last opening of bids, or 12 he shall advertise for new proposals, under the regulations 13 concerning advertisements for proposals hereinbefore stated; 14 and during the interval which may thus occur he shall, under 15 the direction of the Joint Committee on Public Printing, or 16 of the Secretary of the Interior, as above provided, purchase 17 in open market, at the lowest market price, all such articles 18 necessary for use. 1 Sec. 10. _And be it further enacted_, That in case of any 2 contractor's default to comply with this contract he and his 3 securities shall be charged with and held responsible for any 4 increase of cost to the government in procuring the supply 5 which may be consequent upon such default. 1 Sec. 11. _And be it further enacted_, That when any 2 such default occurs the Congressional Printer shall report it, 3 with a full statement of all the facts in the case, to the 4 Solicitor of the Treasury, who shall prosecute the defaulting 5 contractor and his securities upon their bond in the circuit 6 court of the United States in the district in which such 7 defaulting contractor resides. 1 Sec. 12. _And be it further enacted_, That the Joint 2 Committee on Public Printing, or during the recess of Congress 3 the Secretary of the Interior, may authorize the Congressional 4 Printer to make purchases in open market whenever, 5 in their opinion, the quantity required is so small, or the 6 want is so immediate, as not to justify advertisement for proposals 7 and the award of a contract therefor. 1 Sec. 13. _And be it further enacted_, That the Congressional 2 Printer shall charge himself in a book, to be kept for 3 that purpose, with all paper and other articles or material 4 received for the public use, and he shall furnish the same to 5 the foremen of printing and binding, and to the officers of 6 the executive and judicial departments, and of the Senate and 7 House of Representatives authorized to receive them, on 8 their written requisitions as the public service may require 9 them, taking a receipt from each officer for such article, which 10 shall be entered to his credit; and accounts shall be kept 11 with each department, and all articles delivered charged to 12 them. And to carry out the provisions of this act the 13 Congressional Printer may employ one clerk of the fourth class, 14 one of the second class, and one messenger, and shall give an 15 additional bond of forty thousand dollars, and receive, in 16 addition to his present salary, one thousand dollars. 1 Sec. 14. _And be it further enacted_, That from and 2 after the passage of this act it shall be unlawful to make further 3 contracts or purchases or payment for any stationery 4 or article furnished as such, except under existing contracts 5 and in accordance with the regulations hereinbefore provided. 1 Sec. 15. _And be it further enacted_, That all acts and 2 parts of acts inconsistent with the foregoing provisions are 3 hereby repealed. 
22359	----	Making of America Books Collection of the University of Michigan's Digital Library Production Service (http://www.umdl.umich.edu/) Note: Images of the original pages are available through the Making of America Books Collection of the University of Michigan's Digital Library Production Service. See http://www.hti.umich.edu/cgi/t/text/text-idx?c=moa;idno=AJF2351.0001.001 Transcriber's note: Minor typographical errors have been corrected without note. The oe ligature has been transcribed as [oe]. A table of contents, though not present in the original, has been provided below: PREFACE. INTRODUCTION. PROFESSIONAL ETHICS. APPENDIX. No. I. No. II. No. III. PROFESSIONAL ETHICS. AN ESSAY ON PROFESSIONAL ETHICS. by GEORGE SHARSWOOD. Id non eo tantum, quod si vis illa dicendi malitiam instruxerit, nihil sit publicis privatisque rebus perniciosius eloquentia: sed nos quoque ipsi, qui pro virile parte conferre aliquid ad facultatem dicendi conati sumus, pessime mereamur de rebus humanis, SI LATRONI COMPAREMUS HÆC ARMA, NON MILITI. QUINCT. DE INST. OR. Second Edition. Philadelphia: T. & J. W. Johnson & Co., Law Booksellers and Publishers, No. 535 Chestnut Street. 1860. Entered, according to Act of Congress, in the year 1860, by T. & J. W. Johnson & Co., in the Clerk's Office of the District Court for the Eastern District of Penn'a. C. Sherman & Son, Printers, S. W. Cor. Seventh and Cherry Streets, Philadelphia. TO MY HONORED MASTER, JOSEPH R. INGERSOLL, LL.D., INSCRIBED AS A TESTIMONY OF RESPECT AND GRATITUDE. PREFACE. The following Essay was originally published under the title of "A Compend of Lectures on the Aims and Duties of the Profession of the Law, delivered before the Law Class of the University of Pennsylvania." A portion of it had been read by the author as an Introductory Lecture at the opening of the Fifth Session of the Law Department of that Institution, October 2d, 1854. The young gentlemen, alumni, and students of the school, who were present on that occasion, requested a copy for publication, in order that each of them might possess a memento of their connection with the Institution. The author preferred to publish the entire Compend than merely a part of it. He hesitated much in doing so, because the questions discussed are difficult, and opinions upon them variant, and he could scarcely hope that he had in every case succeeded in just discrimination. A review of the matter now, when a second edition has been called for, has suggested, however, no important change in the principles advanced, though a few additions have been made, some inaccuracies corrected, and an introduction upon the importance of the profession, in a public point of view, prefixed. G. S. INTRODUCTION. The dignity and importance of the Profession of the Law, in a public point of view, can hardly be over-estimated. It is in its relation to society at large that it is proposed to consider it. This may be done by showing its influence upon legislation and jurisprudence. These are the right and left hands of government in carrying out the great purposes of society. By legislation is meant the making of law--its primary enactment or subsequent alteration. Jurisprudence is the science of what the law is or means, and its practical application to cases as they arise. The province of legislation is _jus dare_--of jurisprudence, _jus dicere_. The latter is entirely in the hands of lawyers as a body--the former almost entirely. Legislation is indeed a nobler work than even jurisprudence. It is the noblest work in which the intellectual powers of man can be engaged, as it resembles most nearly the work of the Deity. It is employed as well in determining what is right or wrong in itself--the due proportion of injuries and their remedies or punishments--as in enforcing what is useful and expedient. How wide the scope of such a work! The power of society over its individual members, or, in other words, sovereignty, which is practically vested in the legislature, is a type of the Divine power which rules the physical and moral universe. "There is one Lawgiver," says the Apostle James. Not that the Supreme Being is the sole universal lawgiver in the sense of a creator of law, whose will alone determines the boundaries of right and wrong. God is the creator of the beings who are the subjects of law. He is the author of law--the one lawgiver--in the same sense that he, who first discovered a plain figure, may be said to be the author of all theorems, which may be predicated of it. He who first called attention to the curious curve, made by a point in the periphery of a wheel as it turns on the ground, is in a certain sense the discoverer of all the truths, which may be mathematically demonstrated in respect to it. Law in its true sense is not the work of mere will--not an act of intellectual caprice. It is a severe and necessary deduction from the relations of things. The Divine legislator sees and knows these relations perfectly. He can draw no wrong deduction from them. He can make no mistake. Whatever laws have certainly emanated from Him are certainly right. This is the sense in which it is true that "there is one Lawgiver:" all others but attempt the work; He alone is competent to perform it. There is no mathematical certainty in our reasoning on moral as there is on physical relations. We know that the three angles of a triangle are equal to two right angles with an assurance we can never have in regard to any moral truth whatever. The Divine law is a deduction necessarily and mathematically certain as much so as any truth in geometry. Human law can aim only at such a probable deduction as results from a finite and imperfect knowledge. The system of law delivered by Moses to the Jews deserves, therefore, the most careful study at the hands of all who believe him to have been a divinely commissioned lawgiver. These laws were not intended for any other people than the Israelites; they were adapted to their circumstances, climate, country, neighbors, to the period of the world when they were promulgated, and during which they were to prevail. They were certainly not meant as a model for any other form of government, for any other people, or for any other time. Many laws are to be found there which are unnecessary and superfluous if applied elsewhere. Many actions, innocent in themselves, are prohibited. All the _mala prohibita_ are not _mala in se_. But one thing is as clear as a sunbeam, and that is a very important light to the student of Ethics; if God was the author of these laws, nothing morally wrong was commanded or allowed by them. When it was said of the Jews through the prophet, "I gave them statutes which were not good," it cannot mean not morally good; laws which it would be sinful in them to obey. The word in the original is not the word appropriated in that language to right, conformity to rule, but to goodness in its most general sense. Good statutes mean wise and expedient statutes. By no process can the logical mind be brought to the conclusion that the perfectly wise and good lawgiver, in framing a code of laws for any people, would impose as a punishment "for the hardness of their hearts," a penalty, submission to which would itself be punishable as a sin against the law of nature. He might command or allow as such punishment what in itself was inexpedient and injurious to them, and which upon the promulgation of a new law repealing the old and prohibiting what it allowed, would become by the sanction of the same lawgiver thenceforth universally _malum prohibitum_. The authority of God as a lawgiver is certainly not confined to a mere declaration of what is right or wrong by the law of Nature. There can be no merely arbitrary laws. It is necessary to bear in mind that we are now considering the province of the legislator, who ought to enact no law without an end. "Civil legislative power," says Rutherforth (B. II, c. vi, s. 10), "is not in the strict sense of the word an absolute power of restraining or altering the rights of the subjects: it is limited in its own nature to its proper objects, to those rights only in which the common good of the society or of its several parts requires some restraint or alteration. So that whenever we call the civil legislative power, either of society in general or of a particular legislative body within any society, an absolute legislative power, we can only mean that it has no external check upon it in fact; for all civil legislative power is in its own nature under an internal check of right: it is a power of restraining or altering the rights of the subjects for the purpose of advancing or securing the general good, and not of restraining or altering them for any purpose whatever, and much less for no purpose at all." There are, therefore, no arbitrary laws which fulfil the end of law. Doubtless the true objects of society and government may be mistaken by him who sets up to be law-maker, or if those objects are properly appreciated, the means for advancing them may be mistaken. It is not wonderful that in a matter which demands the highest wisdom, many should try and fail. It becomes important to inquire what are the true ends of society and government? Man is a gregarious animal--a social being. He may exist in solitude, but he cannot enjoy life: he cannot perfect his nature. Those who have watched and studied closely the habits of those irrational animals, who live in communities, as the ant, the bee, and the beaver, have observed not only a settled system and subordination, but the existence of some wonderful faculty, like articulate speech, by which communication takes place from one to another; a power essential to order. Man, the highest social animal in the scale of earthly being, has also the noblest faculty of communication. The final cause--the reason why man was made a social being--is that society was necessary to the perfection of his physical, intellectual, and moral powers, in order to give the fullest return to the labor of his hands and to secure the greatest advances in knowledge and wisdom. It is for no vain national power or glory, for no experimental abstraction, that governments are instituted among men. It is for man as an individual. It is to promote his development; and in that consists his true happiness. The proposition would be still more accurate were it said, society is constituted that men may be free--free to develop themselves--free to seek their own happiness, following their own instincts or conclusions. Without society--and government, which of course results from it--men would not be free. An individual in a state of isolation might defend himself from savage beasts, and more savage men, as long as his strength lasted, but when sickness or age came on, the product of the labor of his hands, accumulated by a wise foresight to meet such a contingency, would become the prey of the stronger. The comparatively weak-minded and ignorant would be constantly subject to the frauds of the more cunning. It is enough to look at the effects of the division of employments and the invention of labor-saving machinery, to recognize the invaluable results of society in the development of wealth and power. In a state of isolation a man's entire time and strength would be needed for the supply of his physical wants. As men advance in knowledge and wisdom the standard of their mere physical wants is elevated. They demand more spacious and comfortable dwellings, more delicate viands and finer clothing. "Allow not nature more than nature needs, Man's life is cheap as beasts'." It is not true that men would be morally better or happier, if their style of living were reduced to the greatest plainness consistent with bare comfort. Our taste in this respect, as for the fine arts, as it becomes more refined, becomes more susceptible of high enjoyment. When large fortunes are suddenly made by gambling, or what is equivalent thereto, then it is that baleful luxury is introduced--a style of living beyond the means of those who adopt it, and spreading through all classes. Taste, cultivated and enjoyed at the expense of morals, degrades and debases instead of purifying and elevating character. Men, who have accumulated wealth slowly by labor of mind or body, do not spend it extravagantly. If they use it liberally, that creates no envy in their poorer neighbor, no ruinous effort to equal what is recognized to be the due reward of industry and economy. The luxury, which corrupted and destroyed the republic of Rome, was the result of large fortunes suddenly acquired by the plunder of provinces, the conquests of unjust wars. The most fruitful source of it, in our own day, is what has been well termed _class legislation_--laws which either directly or indirectly are meant to favor particular classes of the community. They are supported by popular reasons and specious arguments, yet there is one test of the true character of such laws, an _experimentum crucis_, of which, in general, they cannot bear the application. Legislation, which requires or which will pay to be bored or bought, is unequal legislation; and therefore unwise and unjust. Bentham's rule, though false as the standard of right and wrong, is in general the true rule of practical legislation, the greatest good of the greatest number. It is expressed with the most force and accuracy by that master of the science, Bynkershoek; _Utilitas, utilitas, justi PROPE mater et æqui_: in which observe that the word _prope_ is emphatic. Legislation for classes violates this plain rule of equal justice, and moreover does not, in the long run, benefit those for whom it is intended. The indirect evils upon society at large are even more injurious than those which are direct. Men are often thus poor to-day and rich to-morrow. The bubble, while it dances in the sunbeam, glitters with golden hues, though destined almost immediately to burst and be seen no more. What government owes to society, and all it owes, is the impartial administration of equal and just laws. This produces security of life, of liberty, and of property. It has become a favorite maxim, that it is the duty of government to promote the happiness of the people. The phrase may be interpreted so as to mean well, but it is a very inaccurate and unhappy one. It is the inalienable right of men to pursue their _own_ happiness; each man under such restraints of law as will leave every other man equally free to do the same. The true and only true object of government is to secure this right. The happiness of the people is the happiness of the individuals who compose the mass. Speaking now with reference to those objects only, which human laws can reach and influence, he is the happy man, who sees his condition in life constantly and gradually, though it may be slowly, improving. Let government keep its hands off--do nothing in the way of creating the subject-matter of speculation--and things naturally fall into this channel. There will be some speculators, as there will be some gamblers; but they will be few. The stock market is filled with fancies, which the government has manufactured and continues to manufacture to order. It is the duty of government to encourage the accumulation of the savings of industry. The best way to do so is to guard the strong box from the invasion of others, and not itself to invade it. Property has an especial claim to protection against the government itself. The power of taxation in the legislature is in fact a part of the _eminent domain_; a power that must necessarily be reposed in the discretion of every government to furnish the means of its own existence. One grievous invasion of property--and of course ultimately of labor, from whose accumulations all property grows--is by government itself, in the shape of taxation for objects not necessary for the common defence and general welfare. Men have a right not only to be well governed, but to be cheaply governed--as cheaply as is consistent with the due maintenance of that security, for which society was formed and government instituted. This, the sole legitimate end and object of law, is never to be lost sight of--security to men in the free enjoyment and development of their capacities for happiness--SECURITY--nothing less--but nothing more. To compel men to contribute of the earnings or accumulations of industry, their own or inherited, to objects beyond this, not within the legitimate sphere of legislation, to appropriate the money in the public treasury to such objects, is a perversion and abuse of the powers of government, little if anything short of legalized robbery. What is the true province of legislation, ought to be better understood. It is worth while to remark, that in every new and amended State constitution, the bill of rights spreads over a larger space; new as well as more stringent restrictions are placed upon legislation. There is no danger of this being carried too far; as Chancellor Kent appears to have apprehended that it might be. There is not much danger of erring upon the side of too little law. The world is notoriously too much governed. Legislators almost invariably aim at accomplishing too much. Representative democracies, so far from being exempt from this vice, are from their nature peculiarly liable to it. Annual legislatures--with generally two-thirds new members every year--increase the evil. The members fall into the common mistake, that their commission is to act, not to decide in the first place whether action is necessary. They would be blamed and ridiculed, if they adjourned without doing something important. Hence the annual volumes of our Acts of Assembly are fearfully growing in bulk. It is not merely of the extent of local legislation, the vast multiplication of charters for every imaginable purpose, or of the constantly recurring tampering with the most general subjects of interest, finance, revenue, banking, education, pauperism, &c., that there is reason to complain; but scarce a session of one of our legislatures passes without rash and ill-considered alterations in the civil code, vitally affecting private rights and relations. Such laws are frequently urged by men, having causes pending, who dare not boldly ask that a law should be made for their particular case, but who do not hesitate to impose upon the legislature by plausible arguments the adoption of some general rule, which by a retrospective construction, will have the same operation. It is a most monstrous practice, which lawyers are bound by the true spirit of their oath of office, and by a comprehensive view of their duty to the Constitution and laws, which they bear so large a part as well in making as administering, to discountenance and prevent. It is to be feared, that sometimes it is the counsel of the party who recommends and carefully frames the bill, which, when enacted into a law, is legislatively to decide the cause. It is time that a resort to such a measure should be regarded in public estimation as a flagrant case of professional infidelity and misconduct. This brief sketch of the true province of legislation is enough to evince its vast importance. How great is the influence of the lawyers as a class upon legislation! Let any man look upon all that has been done in this department, and trace it to its sources. He will acknowledge that legislation, good or bad, springs from the Bar. There is in this country no class of lawyers confined to the mere business of the profession--no mere attorneys--no mere special pleaders--no mere solicitors in Chancery--no mere conveyancers. However more accurate and profound may be the learning of men, whose studies are thus limited to one particular branch, it is not to be regretted either on account of its influence on the science or the profession. The American lawyer, considering the compass of his varied duties, and the probable call which will be made on him especially to enter the halls of legislation, must be a Jurist. From the ranks of the Bar, more frequently than from any other profession, are men called to fill the highest public stations in the service of the country, at home and abroad. The American lawyer must thus extend his researches into all parts of the science, which has for its object human government and law: he must study it in its grand outlines as well as in the filling up of details. He is as frequently called upon to inquire what the law ought to be as what it is. While a broad and marked line separates, and always ought to separate the departments of Legislation and Jurisprudence, it is a benefit to both that the same class of men should be engaged in both. Practice will thus be liberalized by theory, and theory restrained and corrected by practice. The mere abstractionist or _doctrinaire_ would aim at the formation of a code of great simplicity: the practitioner sees in it the parent of uncertainty and injustice. Legal propositions cannot be framed with the certainty of mathematical theories. The most carefully studied language still leaves room for interpretation and construction. Time itself, which works such mighty changes in all things, produces a state of circumstances not in the mind of the lawgiver. The existing system, it may be, is an unwieldy, inconvenient structure, heavy and grotesque from the mixed character of its architecture outwardly, inwardly its space too much occupied and its inmates embarrassed by passages and circuities. The abstractionist would at once demolish it, and replace it by a light, commodious and airy dwelling, more symmetrical and chaste in its appearance, better fitted for the comfort and usefulness of its inhabitants. The practitioner, who has become familiar with it, who observes and admires that silent legislation of the people, which shows itself not on the pages of the statute book, and receives its recognition in courts of justice only after it has ceased to need even that to give it form and vitality, and who understands, therefore, how, with little inconvenience, it is made to accommodate itself to every change of condition, sits down to a careful calculation of the cost and risk of such wholesale change. History and practical experience, alike, suggest to him, that the structure is a castle as well as a dwelling, a place for security as well as comfort; that its foundations have been laid deeply on the solid rock--its masonry more firmly knit together by the time it has endured. Yet he will not deny that what can be done consistently with security ought to be done. It is worse than in vain to oppose all amendment. It will break down every artificial barrier that may be reared against it, if it be not quietly and wisely directed in those channels which it seeks at the least expense to security and stability. Surely it is not conceding too much to this spirit to admit, that laws should be composed in accurate but perspicuous language, without redundancy of words or involution of sentences; that the policy of public measures should not be wrapt up in the folds of State mystery; and that all legislation should be based upon the principle of leaving the greatest liberty of private judgment and action, consistent with public peace and private security. A blind attachment to principles of jurisprudence or rules of law because they are ancient, when the advancement of the useful arts, the new combinations of trade and business, and the influence of more rapid and general intercourse demand their repeal or modification, is as much to be deprecated as rash innovation and unceasing experiment. Indeed it scarcely ever fails to defeat its own end, and though it may retard for a while, renders the course of reform more destructive than it otherwise would have been. True conservatism is gradualism--the movement onward by slow, cautious, and firm steps--but still movement, and that onward. The world, neither physically, intellectually, nor morally, was made to stand still. As in her daily revolutions on her own axis as well as her annual orbit round the sun, she never returns precisely to the same point in space which she has ever before occupied, it would seem to be the lesson which the Great Author of all Being would most deeply impress upon mind as he has written it upon matter; "by ceaseless motion all that is subsists." What has thus been very cursorily presented will evince that it is the province of legislation, by slow and cautious steps, to amend the laws, to render them more equal in their operation upon all classes, not favoring the rich more than the poor, nor one class of either more than another, providing an easy, cheap, and expeditious administration of justice by tribunals, whose learning and impartiality shall be so secured as to possess the confidence of the community, and by general rules for the regulation of conduct and the distribution of estates most conformed to the analogies of that system, which is familiar to the people in their common law. Great as is the influence which the profession of the law can and does exercise upon the legislation of a country, the actual administration of law is entirely in their hands. To a large extent by private counsel, by the publication of works of research and learning, by arguments in courts of justice to assist those who are to determine what is the law, and to apply it to the facts, as well as in the actual exercise of judicature, this whole important province of government, which comes home so nearly to every man's fireside, is intrusted necessarily to lawyers. In this country we live under the protection of written constitutions; not only so, but written constitutions, which have assumed to place limits upon the power of majorities, acting at least through their ordinary representatives. The construction of these constitutions, or constitutional law as it is termed, forms a very important branch of American jurisprudence. There have been, and are, in other countries, charters, written or unwritten--organic or fundamental laws--but without this distinguishing feature. The fundamental laws, thus established in point of fact, emanate from the government, and have no sanction beyond the oath of those intrusted with the administration of them, the force of public opinion, and the responsibility of the representative to his constituent. Our constitutions emanate not from the government, but the State, the society, the creator of the government; and are, therefore, in the strictest sense of the words, _leges legum_. The radical principle of our system is, that the act of the legislative body, beyond or contrary to the power confided to it by the Constitution, is a nullity, and absolutely void. The courts must so pronounce, and the executive must execute their judgments with the whole force of the State. Upon such a subject it is best to use the very language--the _ipsissima verba_--of John Marshall, as, at the same time, expressing the doctrine with the greatest force and perspicuity, and presenting, in the mere statement, the most convincing argument of its importance. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is, in reality, effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure." (Marbury _v._ Madison, 1 Cranch, 177.) More weighty words than these have never, speaking of human things, fallen from the lips of man: weighty in themselves from their own simple but eloquent conclusiveness--weightier still from their unspeakable importance, the immeasurable influence they have had, and, it is to be hoped, will ever continue to have, upon the destinies of the United States of America. The judiciary department, though originating nothing, but acting only when invoked by parties in the prosecution of their rights, is thus necessarily an important political branch of the government. That department spreads the broad and impregnable shield of its protection over the life, limbs, liberty, and property of the citizen, when invaded even by the will of the majority. Our Bills of Rights are, therefore, not mere enunciations of abstract principles, but solemn enactments by the people themselves, guarded by a sufficient sanction. They have not, perhaps, as yet, carried far enough their provisions for the security of property from the unjust action of government. The obligation of contracts has been declared sacred; the right of eminent domain restricted by the provision for compensation. Yet, even as to contracts, the legislature may still exercise dangerous powers over the remedy, short of taking it away entirely, and over the rules of evidence. As to eminent domain, they possess an undefined right to determine the time and manner of ascertaining the compensation. Our constitutions are frequently undergoing revision; and too much care cannot be exercised to strengthen our securities in this quarter. Personal liberty, trial by jury, the elective and other political franchises, liberty of conscience, of speech and of the press, are able to protect themselves in a great measure from their own democratic affinities. It is true, that there really is no difference between wresting from a man the few dollars, the products or savings of his industry for any period of time, and depriving him of his liberty, or chaining him to a log, to work for another during the same period. Property eminently stands in need of every parchment barrier, which has been or can be thrown around it. An eminent Judge in our own State once threw out the opinion that there existed in the Constitution no disaffirmance of the power of the legislature to take the property of an individual for _private uses_ with or without compensation. "The clause," he argued, "by which it is declared that no man's property shall be taken or applied to _public_ use, without compensation made, is a disabling, not an enabling one, and the right would have existed in full force without it." (Harvey _v._ Thomas, 10 Watts, 63.) Fortunately, the decision of the court in that case did not require a resort to that reasoning, and but little examination was sufficient to satisfy the mind that this _obiter dictum_ was unsustained by either principle or authority. A power in the legislature to take the property of A. and give it to B. directly, would be of the very essence of despotism. When it is declared in the Bill of Rights that no man shall be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land, this phrase, "law of the land," does not mean merely an act of the legislature. If it did, every restriction upon the legislative department would be practically abrogated. By an authority as old as Lord Coke, in commenting upon these same words in _Magna Charta_, they are to be rendered "without due process of law: that is, by indictment or presentment of good and lawful men, when such deeds be done in due manner, or by writ original of the common law, without being brought into answer but by due process of the common law." (2 Inst. 50.) The American laws are numerous and uniform to the point (see 1 American Law Mag. 315); and the same eminent Judge, to whom reference has been made in a later case, declared his adhesion to the sound and true doctrine in the most emphatic language, without noticing his own previous _dictum_ to the contrary. "It was deemed necessary," said he, "to insert a special provision in the Constitution to enable them (the legislature) to take private property even for public use, and on compensation made; but it was not deemed necessary to disable them specially in regard to taking the property of an individual, with or without compensation, in order to give it to another, not only because the general provision in the Bill of Rights was deemed sufficiently explicit for that, but because it was expected that no legislature would be so regardless of right as to attempt it. Were this reasonable expectation to be disappointed, it would become our plain and imperative duty to obey the immediate and paramount will of the people, expressed by their voices in the adoption of the Constitution, rather than the repugnant will of their delegates acting under a restricted but transcended authority." (Norman _v._ Heist, 5 W. & S. 171.) Yet, while the right of private property cannot be thus directly invaded, its security against the acts of the legislature is not as perfect as it might and ought to be made. The legislature must be allowed a large discretion in judging what is a public use: on that pretext much may be brought within its sweep unjustly, and the courts, in the absence of a constitutional rule, would be embarrassed in defining its limits. Experience has shown that much power to do wrong lurks under grants by no means essential to the public good. Besides what has been before referred to, the assumption of judicial functions by the Legislature and the broad field of Chancery jurisdiction over trust estates, which it has been held that they may exercise immediately, if they see fit, instead of vesting them in appropriate tribunals, are fraught with serious danger. The proneness of bodies so constituted to disembarrass themselves of the ordinary rules of evidence, to act upon _ex parte_ statements and testimony imperfectly authenticated, as well as the absence of all legal forms from their proceedings, and their numbers, among whom the responsibility of giving due attention to the case is divided, add to the peril. The power of legislating retrospectively has far too wide a scope; the constitutional inhibition of _ex post facto_ laws having been construed to apply to criminal or penal cases merely, restraining the legislature from making that an offence which was not so at the time of its commission, or increasing the punishment annexed to it. The course of legislation in this country amply demonstrates the wisdom, and even necessity, of extending the same prohibition to civil cases. There is no particular or partial inconvenience, which could outweigh the general benefits of a provision that no law, public or private, should operate retrospectively upon past acts; that the judgment of the tribunals upon every case should be according to the law as it was at the time of the transaction, which the parties were bound to know, and in accordance with which they are to be presumed to have acted. As well in the domain of public as of private law, the great fundamental principle for judge and counsellor ought to be, THAT AUTHORITY IS SACRED. There is no inconvenience so great, no private hardship so imperative, as to justify the application of a different rule to the resolution of a case, than the existing state of the law will warrant. "There is not a line from his pen," says Mr. Binney of Chief Justice Tilghman, "that trifles with the sacred deposit in his hands by claiming to fashion it according to a private opinion of what it ought to be. Judicial legislation he abhorred, I should rather say, _dreaded_, as an implication of his conscience. His first inquiry in every case was of the oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the cause, and his intense desire to reach it, if it was not the justice of the law, he dared not to administer it. He acted upon the sentiment of Lord Bacon, that it is the foulest injustice to remove landmarks, and that to corrupt the law is to poison the very fountains of justice. With a consciousness that to the errors of the science there are some limits, but none to the evils of a licentious invasion of it, he left it to our annual legislature to correct such defects in the system as time either created or exposed; and better foundation in the law can no man lay." It is not to be denied that there is some difficulty in stating with accuracy the limits of the rule _stare decisis_. One, or even more than one, recent precedent, especially when it relates to the application rather than to the establishment of a rule, is not of so binding a character that it must be followed, even though contrary to principles adjudged in older cases: but it is just as clear that when a decision has been long acquiesced in, when it has been applied in numerous cases, and become a landmark in the branch of the science to which it relates, when men have dealt and made contracts on the faith of it, whether it relates to the right of property itself, or to the evidence by which that right may be substantiated, though it may appear to us "flatly absurd and unjust," to overrule such a decision is an act of positive injustice, as well as a violation of law, and an usurpation by one branch of the government upon the powers of another. An example will illustrate this position. In the case of Walton _v._ Shelley (1 Term Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice, decided that a person is not a competent witness to impeach a security which he has given, though he is not interested in the event of the suit, on the trial of which he is offered. In Jordaine _v._ Lashbrooke (7 Term Rep. 601), the same court, in 1798, under the presidency of Lord Kenyon, rightly overruled that decision. Now it so happens that Walton _v._ Shelley was recognized as authority and followed in Pennsylvania, in 1792, in Stille _v._ Lynch (2 Dall. 194), before it had been overruled in England: and though limited as it was understood to be in Bent _v._ Baker (3 Term Rep. 34), to negotiable paper (Pleasants _v._ Pemberton, 2 Dall. 196), it has never been varied from since that time, though it has frequently been admitted that Walton _v._ Shelley was properly overruled. It ought not now to be overruled in Pennsylvania. "After the decisions cited," says Judge Rogers, in Gest _v._ Espy (2 Watts, 268), "this cannot be considered an open question, nor do we think ourselves at liberty now to examine the foundations of the rule." Unfortunately our Supreme Court have not always put this sound and wise limitation upon their own power. In the case of Post _v._ Avery (5 W. & S. 509), they declared in regard to a rule of more than thirty years' standing, and confirmed by numerous cases, that they had "vainly hoped that the inconvenience of the rule would have attracted the attention of the legislature, _who alone are competent to abolish it_;" but as nothing was to be expected from that quarter, "they were driven by stress of necessity" to overrule a case expressly decided on the authority of the rule. (Hart _v._ Heilner, 3 Rawle, 407.) And two years afterwards, after having made the remarkable declaration that the legislature alone was competent to abolish the rule, they nevertheless pronounced it "exploded altogether." (McClelland _v._ Mahon, 1 Barr, 364.) Lord Bacon says of retrospective laws: "_Cujus generis leges raro et magna cum cautione sunt adhibenda: neque enim placet Janus in legibus._" Without any saving clause may the epithet and denunciation be applied to judicial laws. They are always _retrospective_, but worse on many accounts than _retrospective statutes_. Against the latter we have at least the security of the constitutional provision that prohibits the passage of any law, which impairs the obligation of a contract, executory or executed; and it has been well held that this prohibition applies to such an alteration of the law of evidence in force at the time the contract was made, as would practically destroy the contract itself by destroying the only means of enforcing it. There is no such constitutional provision against judicial legislation. It sweeps away a man's rights, vested, as he had reason to think, upon the firmest foundation, without affording him the shadow of redress. Nor could there, in the nature of things, be any such devised. When a court overrules a previous decision, it does not simply repeal it; it must pronounce it never to have been law. There is no instance on record, in which a court has instituted the inquiry, upon what grounds the suitor had relied in investing his property or making his contract, and relieved him from the disastrous consequences, not of his, but of their mistake, or the mistake of their predecessors. The man who, on the faith of Steele _v._ The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811, and treated as so well settled in itself and all its logical consequences, that in 1832 (Hart _v._ Heilner, 3 Rawle, 407) the Supreme Court, declined to hear the counsel, who relied on its authority, invested his money in the purchase of a claim which could be proved only by the testimony of the assignor, found himself stripped of his property by a decision in 1845, the results of which were broader than even the legislature itself would have been competent to effect, or indeed the people themselves in their sovereign capacity, at least so long as the Constitution of the United States continues to be "the supreme law of the land, anything in the _constitution_ and laws of any State to the contrary notwithstanding." But judicial is much worse than legislative retrospection in another aspect. The act of Assembly, if carefully worded, is at least a certain rule. The act of the judicial legislature is invariably the precursor of uncertainty and confusion. Apply to it a test, which may be set down as unerring, never failing soon to discover the true metal from the base counterfeit: its effect upon litigation. A decision in conformity to established precedents is the mother of repose on that subject; but one that departs from them throws the professional mind at sea without chart or compass. The cautious counsellor will be compelled to say to his client that he cannot advise. One cause is the general uncertainty to which it leads. Men will persuade themselves easily, when it is their interest to be persuaded, that if one well-established rule has been overthrown, another, believed to be quite as wrong and perhaps not so well fortified by time and subsequent cases, may share the same fate. Shall counsel risk advising his client not to prosecute his claim or defence, when another bolder than he, may moot the point and conduct another cause resting upon the same question to a successful termination? The very foundations of confidence and security are shaken. The law becomes a lottery, in which every man feels disposed to try his chance. Another cause of this uncertainty is more particular. A court scarcely ever makes an open and direct overthrow of a deeply founded rule at one stroke. It requires repeated blows. It can be seen to be in danger, but not whether it is finally to fall. Hence it frequently happens that there is a sliding scale of cases; and when the final overthrow comes, it is very difficult to determine, whether any and which steps of the process remain. Shortly after the decision in Post _v._ Avery, the case of Fraley _v._ Bispham was tried in one of the inferior courts; in which the Judge, thinking that Post _v._ Avery, however the intention may have been disclaimed, did in fact overrule Steele _v._ The Ph[oe]nix, rejected as incompetent one of the nominal plaintiffs, a retiring partner, who upon dissolution had sold out for a price _bona fide_ paid, all his interest in the firm to his copartners, who continued the business. A motion was made for a new trial, and before the rule came on to be heard, Patterson _v._ Reed (7 W. & S. 144) had appeared, and the court, on the authority of that case, which decided that an assignment must be colorable and made for the purpose of rendering the assignor a witness in order to exclude him, ordered a new trial. Before the case was again called for trial, the first volume of Barr's Reports had been published, in which the Supreme Court said: "The time is come, when the doctrine of Steele _v._ The Ph[oe]nix Ins. Co. must be exploded altogether. The essential interests of justice demand that the decision in that case be no longer a precedent for anything whatever." (McClelland _v._ Mahon, 1 Barr, 364.) And the Judge before whom the cause was then tried had no other course left, but again to reject the witness, the very same thing on account of which a new trial had been ordered. The case of Post _v._ Avery is a most striking illustration of judicial legislation and its mischievous results. It is usual to hear it excused on account of the unequal and unjust operation of the rule reversed, by which one party was heard but not the other, and the temptation it held out for the manufacture of false claims, to be supported by perjury. But it is to lose sight of the real question involved to raise such an issue: for, like the execution of a notorious culprit by the expeditious process of a mob and a lamp-post, instead of the formalities and delays of law and courts, it may be a very good thing for the community to have rid itself of the offender, but the way by which it was accomplished was a heavy blow at the very root of the tree of public and private security. There is another decision of the Supreme Court of Pennsylvania, not so bold and avowed an act of judicial legislation as that just mentioned, but not less transparent, which may be cited as strongly illustrating the same consequences of uncertainty and litigation flowing from a disregard of the principle adverted to. From the year 1794, there had existed in Pennsylvania an act of Assembly limiting the lien of the debts of a decedent on his real estate, at first to seven, afterwards to five years. No question ever arose before the court in regard to it. Lien was considered to mean lien and not obligation: lands to be subject to execution for all debts of the owner prosecuted to judgment, and of course not barred by the Statute of Limitations; and the limitation of the lien merely intended for the protection of purchasers from the heirs or devisees or their lien creditors. Such was recognized to be the true meaning of the law in 1795 (Hannum _v._ Spear, 1 Yeats, 566), and so distinctly ruled in 1830 (Bruch _v._ Lantz, 2 Rawle, 392); yet on grounds palpably only relevant to what, in the opinion of the court, the law ought to be, it was held in 1832, in Kerper _v._ Hoch (1 Watts, 9), that the period named was a limitation not of the lien but of the debt itself, and available in favor of heirs and devisees, volunteers under the debtor and succeeding to his rights _cum onere_. As we have seen, but two cases are to be produced of litigation arising out of this law carried to the highest tribunal from 1794 to 1832. More than twenty cases are to be found reported since, in which that court has been called upon to draw distinctions and settle the precise extent of their own law. Thus a little complicated system has grown up on this construction of the act. A volume, indeed, might be written on Kerper _v._ Hoch and its satellites, when if the act had been let alone to speak for itself, and the prior decision followed, it would have been a simple and intelligible rule of action, until the legislature saw fit to alter it. It seems that this consideration pressed upon at least one of the judges, who joined in that decision; for in a subsequent case, when Kerper _v._ Hoch was cited, that Judge, with characteristic candor, interrupted the counsel with the remark: "We will abide by the rule, but it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.) This, then, is the legitimate province of Jurisprudence, _Stare super antiquas vias_, to maintain the ancient landmarks, to respect authority, to guard the integrity of the law as a science, that it may be a certain rule of decision, and promote that security of life, liberty, and property, which, as we have seen, is the great end of human society and government. Thus industry will receive its best encouragement; thus enterprise will be most surely stimulated; thus constant additions to capital by savings will be promoted; thus the living will be content in the feeling that their earnings are safely invested; and the dying be consoled with the reflection that the widow and orphan are left under the care and protection of a government, which administers impartial justice according to established laws. With jurisprudence, lawyers have the most, nay all, to do. The opinion of the Bar will make itself heard and respected on the Bench. With sound views, their influence for good in this respect may well be said to be incalculable. It is indeed the noblest faculty of the profession to counsel the ignorant, defend the weak and oppressed, and to stand forth on all occasions as the bulwark of private rights against the assaults of power, even under the guise of law; but it has still other functions. It is its office to diffuse sound principles among the people, that they may intelligently exercise the controlling power placed in their hands, in the choice of their representatives in the Legislature and of Judges, in deciding, as they are often called upon to do, upon the most important changes in the Constitution, and above all in the formation of that public opinion which may be said in these times, almost without a figure, to be _ultimate sovereign_. Whether they seek them or are sought, lawyers, in point of fact, always have filled, in much the larger proportion over every other profession, the most important public posts. They will continue to do so, at least so long as the profession holds the high and well-merited place it now does in the public confidence. PROFESSIONAL ETHICS. There is, perhaps, no profession, after that of the sacred ministry, in which a high-toned morality is more imperatively necessary than that of the law. There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the line of strict integrity; in which so many delicate and difficult questions of duty are continually arising. There are pitfalls and man-traps at every step, and the mere youth, at the very outset of his career, needs often the prudence and self-denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction. It is like the spear of the guardian angel of Paradise: No falsehood can endure Touch of celestial temper, but returns Of force to its own likeness. The object of this Essay is to arrive at some accurate and intelligible rules by which to guide and govern the conduct of professional life. It would not be a difficult task to declaim in general propositions--to erect a perfect standard and leave the practitioner to make his own application to particular cases. It is a difficult task, however, as it always is in practice, to determine the precise extent of a principle, so as to know when it is encountered and overcome by another--to weigh the respective force of duties which appear to come in conflict. In all the walks of life men have frequently to do this: in none so often as at the Bar. The responsibilities, legal and moral, of the lawyer, arise from his relations to the court, to his professional brethren and to his client. It is in this order that it is proposed to consider and discuss the various topics which grow out of this subject. The oath directed by law in this State to be administered upon the admission of an attorney to the bar, "to behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use no falsehood, nor delay any man's cause for lucre or malice," presents a comprehensive summary of his duties as a practitioner.[1] Fidelity to the court, fidelity to the client, fidelity to the claims of truth and honor: these are the matters comprised in the oath of office. It is an oath of office, and the practitioner, the incumbent of an office--an office in the administration of justice[2]--held by authority from those who represent in her tribunals the majesty of the commonwealth, a majesty truly more august than that of kings or emperors. It is an office, too, clothed with many privileges--privileges, some of which are conceded to no other class or profession.[3] It is, therefore, that the legislature have seen fit to require that there should be added to the solemnity of the responsibility, which every man virtually incurs when he enters upon the practice of his profession, the higher and more impressive sanction of an appeal to the Searcher of all Hearts. Fidelity to the court, requires outward respect in words and actions. The oath as it has been said, undoubtedly looks to nothing like allegiance to the person of the judge; unless in those cases where his person is so inseparable from his office, that an insult to the one, is an indignity to the other. In matters collateral to official duty, the judge is on a level with the members of the bar, as he is with his fellow-citizens; his title to distinction and respect resting on no other foundation, than his virtues and qualities as a man.[4] There are occasions, no doubt, when duty to the interests confided to the charge of the advocate demands firm and decided opposition to the views expressed or the course pursued by the court, nay, even manly and open remonstrance; but this duty may be faithfully performed, and yet that outward respect be preserved, which is here inculcated. Counsel should ever remember how necessary it is for the dignified and honorable administration of justice, upon which the dignity and honor of their profession entirely depend, that the courts and the members of the courts, should be regarded with respect by the suitors and people; that on all occasions of difficulty or danger to that department of government, they should have the good opinion and confidence of the public on their side. Good men of all parties prefer to live in a country, in which justice according to law is impartially administered. Counsel should bear in mind also the wearisomeness of a judge's office; how much he sees and hears in the course of a long session, to try his temper and patience. Lord Campbell has remarked that it is rather difficult for a judge altogether to escape the imputation of discourtesy if he properly values the public time; for one of his duties is to "render it disagreeable to counsel to talk nonsense." Respectful submission, nay, most frequently, even cheerful acquiescence in a decision, when, as is most generally the case, no good result to his cause can grow from any other course, is the part of true wisdom as well as civility. An exception may be noted to the opinion of the Bench, as easily in an agreeable and polite, as in a contemptuous and insulting manner. The excitement of the trial of a cause caused by the conflict of testimony, making often the probabilities of success to vibrate backwards and forwards with as much apparent uncertainty as the chances in a game of hazard, is no doubt often the reason and apology for apparent disrespect in manner and language; but let it be observed, that petulance in conflicts with the Bench, which renders the trial of causes disagreeable to all concerned, has most generally an injurious effect upon the interests of clients. Indeed, it is highly important that the temper of an advocate should be always equal. He should most carefully aim to repress everything like excitability or irritability. When passion is allowed to prevail, the judgment is dethroned. Words are spoken, or things done, which the parties afterwards wish could be unsaid or undone. Equanimity and self-possession are qualities of unspeakable value. An anecdote may serve to illustrate this remark. There was a gentleman of the Bar of Philadelphia, many years ago, who possessed these qualities in a very remarkable degree. He allowed nothing that occurred in a cause to disturb or surprise him. On an occasion in one of the neighboring counties, the circuit of which it was his custom to ride, he was trying a cause on a bond, when a witness for defendant was introduced, who testified that the defendant had taken the amount of the bond, which was quite a large sum, from his residence to that of the obligee, a distance of several miles, and paid him in silver in his presence. The evidence was totally unexpected; his clients were orphan children; all their fortune was staked on this case. The witness had not yet committed himself as to how the money was carried. Without any discomposure--without lifting his eyes or pen from paper--he made on the margin of his notes of trial a calculation of what that amount in silver would weigh; and when it came his turn to cross-examine, calmly proceeded to make the witness repeat his testimony step by step,--when, where, how, and how far the money was carried--and then asked him if he knew how much that sum of money weighed, and upon naming the amount, so confounded the witness, party, and counsel engaged for the defendant, that the defence was at once abandoned, and a verdict for the plaintiff rendered on the spot.[5] Another plain duty of counsel is to present every thing in the cause to the court openly in the course of the public discharge of its duties. It is not often, indeed, that gentlemen of the Bar so far forget themselves as to attempt to exert privately an influence upon the judge, to seek private interviews, or take occasional opportunities of accidental or social meetings to make _ex parte_ statements, or to endeavor to impress their views. They know that such conduct is wrong in itself, and has a tendency to impair confidence in the administration of justice, which ought not only to be pure but unsuspected. A judge will do right to avoid social intercourse with those who obtrude such unwelcome matters upon his moments of relaxation. There is one thing, however, of which gentlemen of the Bar are not sufficiently careful,--to discourage and prohibit their clients from pursuing a similar course. The position of the judge in relation to a cause under such circumstances is very embarrassing, especially, as is often the case, if he hears a good deal about the matter before he discovers the nature of the business and object of the call upon him. Often the main purpose of such visits is not so much to plead the cause, as to show the judge who the party is--an acquaintance, perhaps--and thus, at least, to interest his feelings. Counsel should set their faces against all undue influences of the sort; they are unfaithful to the court, if they allow any improper means of the kind to be resorted to. _Judicem nec de obtinendo jure orari oportet nec de injuria exorari._ It may be in place to remark here that the counsel in a cause ought to avoid all unnecessary communication with the jurors before or during any trial in which he may be concerned. He should enforce the same duty upon his client. Any attempt by an attorney to influence a juror by arguments or otherwise, will, of course, if discovered and brought to the notice of the court, lead to expulsion or suspension from the Bar, according to the degree and quality of the offence. The freedom of the jury-box from extraneous influences is a matter of such vital moment in our system that the courts are bound to watch over it with jealous eyes. "It would be an injury to the administration of justice," says C. J. Tilghman, "not to declare that it is gross misbehavior for any person to speak with a juror, or for a juror to permit any person to speak with him, respecting the cause he is trying, at any time after he is summoned and before the verdict is delivered." "The words thus uttered," says Judge Hare, "by one of the best men and purest magistrates that ever filled the judicial office, must find an echo in every bosom. The principle which dictated them does not require the aid of argument or elucidation; it is native to the conscience, and will be apparent to all who consult the monitor in their own breast. The wrong is aggravated when the taint of personal interest mingles with it, as when committed by a party to the cause, but appears in the worst form when it is the act of attorneys or counsel, who are the sworn officers of the court, whose duty it is to act as guardians of the fountains of justice, and who are false to their charge when they defile or taint those waters, which they are pledged to keep pure and unpolluted. Such conduct in counsel is a gross breach of trust, for which a removal from the trust is but an inadequate punishment."[6] There is another duty to the court, and that is, to support and maintain it in its proper province wherever it comes in conflict with the co-ordinate tribunal--the jury. The limits of these two provinces are settled with great accuracy; and even if a judge makes a mistake, the only proper place to correct his error is in the superior tribunal,--the Court of Errors. It has been held in a multitude of cases, that verdicts against the charge of the court in point of law, will be set aside without limitation as to the number of times, and that without regard to the question whether the direction of the court in point of law was right or wrong. There is a technical reason, which makes this course in all cases imperative. The losing party, if the jury were allowed to decide the law for him, would be deprived of his exception, and of his unquestionable right to have the law of his case pronounced upon by the Supreme Court. _Ad questiones juris respondeant judices,--ad questiones facti juratores._ A disregard by the jury of the law, as laid down by the judge, is always therefore followed by additional and unnecessary delay and expense, and it is never an advantage to a party in the long run to obtain a verdict in opposition to the direction of the court.[7] It is best for counsel to say in such cases, where nothing is left by the charge to the jury, that they do not ask for a verdict. It has a fair, candid, and manly aspect towards court, jury, opposite party, and even client. Instances of counsel urging or endeavoring to persuade a jury to disregard the charge may sometimes occur, but they are exceedingly rare when there is good feeling between the Bench and the Bar, and when the members of the profession have just and enlightened views of their duty as well as interest. It need hardly be added that a practitioner ought to be particularly cautious, in all his dealings with the court, to use no deceit, imposition, or evasion--to make no statements of facts which he does not know or believe to be true--to distinguish carefully what lies in his own knowledge from what he has merely derived from his instructions--to present no paper-books intentionally garbled. "Sir Matthew Hale abhorred," says his biographer, "those too common faults of misrepresenting evidence, quoting precedents or books falsely, or asserting anything confidently by which ignorant juries and weak judges are too often wrought upon."[8] One such false step in a young lawyer will do him an injury in the opinion of the Bench and of his professional brethren, which it will take years to redeem, if indeed it ever can be entirely redeemed. A very great part of a man's comfort, as well as of his success at the Bar, depends upon his relations with his professional brethren. With them he is in daily necessary intercourse, and he must have their respect and confidence, if he wishes to sail along in smooth waters. He cannot be too particular in keeping faithfully and liberally every promise or engagement he may make to them. One whose perfect truthfulness is even suspected by his brethren at the Bar has always an uneasy time of it. He will be constantly mortified by observing precautions taken with him which are not used with others. It is not only morally wrong but dangerous to mislead an opponent, or put him on a wrong scent in regard to the case. It would be going too far to say that it is ever advisable to expose the weakness of a client's cause to an adversary, who may be unscrupulous in taking advantage of it; but it may be safely said, that he who sits down deliberately to plot a surprise upon his opponent, and which he knows can succeed only by its being a surprise, deserves to fall, and in all probability will fall, into the trap which his own hands have laid. "Whoso diggeth a pit," says the wise man, "shall fall therein, and he that rolleth a stone, it will return upon him." If he should succeed, he will have gained with his success not the admiration and esteem, but the distrust and dislike of one of his associates as long as he lives. He should never unnecessarily have a personal difficulty with a professional brother. He should neither give nor provoke insult. Nowhere more than at the Bar is that advice valuable: "Beware Of entrance to a quarrel; but being in, Bear it that the opposed may beware of thee." There is one more caution to be given under this head. Let him shun most carefully the reputation of a sharp practitioner. Let him be liberal to the slips and oversights of his opponent wherever he can do so, and in plain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal--and he should throw up his brief sooner than do what revolts against his own sense of what is demanded by honor and propriety. Nothing is more certain than that the practitioner will find, in the long run, the good opinion of his professional brethren of more importance than that of what is commonly called the public. The foundations of the reputation of every truly great lawyer will be discovered to have been laid here. Sooner or later, the real public--the business men of the community, who have important lawsuits, and are valuable clients--indorse the estimate of a man entertained by his associates of the Bar, unless indeed there be some glaring defect of popular qualities. The community know that they are better qualified to judge of legal attainments, that they have the best opportunity of judging, and that they are slow in forming a judgment. The good opinion and confidence of the members of the same profession, like the King's name on the field of battle, is "a tower of strength;" it is the title of legitimacy. The ambition to please the people, to captivate jurors, spectators, and loungers about the court room, may mislead a young man into pertness, flippancy, and impudence, things which often pass current for eloquence and ability with the masses; but the ambition to please the Bar can never mislead him. Their good graces are only to be gained by real learning, by the strictest integrity and honor, by a courteous demeanor, and by attention, accuracy and punctuality in the transaction of business. The topic of fidelity to the client involves the most difficult questions in the consideration of the duty of a lawyer. He is legally responsible to his client only for the want of ordinary care and ordinary skill. That constitutes gross negligence. It is extremely difficult to fix upon any rule which shall define what is negligence in a given case. The habits and practice of men are widely different in this regard. It has been laid down that if the ordinary and average degree of diligence and skill could be determined, it would furnish the true rule.[9] Though such be the extent of legal liability, that of moral responsibility is wider. Entire devotion to the interest of the client, warm zeal in the maintenance and defence of his rights, and the exertion of his utmost learning and ability,--these are the higher points, which can only satisfy the truly conscientious practitioner. But what are the limits of his duty when the legal demands or interests of his client conflict with his own sense of what is just and right? This is a problem by no means of easy solution. That lawyers are as often the ministers of injustice as of justice is the common accusation in the mouth of gainsayers against the profession. It is said there must be a right and a wrong side to every lawsuit. In the majority of cases it must be apparent to the advocate, on which side is the justice of the cause; yet he will maintain, and often with the appearance of warmth and earnestness, that side which he must know to be unjust, and the success of which will be a wrong to the opposite party. Is he not then a participator in the injustice? It may be answered in general:-- Every case is to be decided by the tribunal before which it is brought for adjudication upon the evidence, and upon the principles of law applicable to the facts as they appear upon the evidence. No court or jury are invested with any arbitrary discretion to determine a cause according to their mere notions of justice. Such a discretion vested in any body of men would constitute the most appalling of despotisms. Law, and justice according to law--this is the only secure principle upon which the controversies of men can be decided. It is better on the whole that a few particular cases of hardship and injustice, arising from defect of evidence or the unbending character of some strict rule of law, should be endured, than that general insecurity should pervade the community from the arbitrary discretion of the judge. It is this which has blighted the countries of the East as much as cruel laws or despotic executives. Thus the legislature has seen fit in certain cases to assign a limit to the period within which actions shall be brought; in order to urge men to vigilance, and to prevent stale claims from being suddenly revived against men whose vouchers are destroyed or whose witnesses are dead. It is true, _in foro conscientiæ_, a defendant, who knows that he honestly owes the debt sued for and that the delay has been caused by indulgence or confidence on the part of his creditor, ought not to plead the statute. But if he does plead it, the judgment of the court must be in his favor. Now the lawyer is not merely the agent of the party; he is an officer of the court. The party has a right to have his case decided upon the law and the evidence, and to have every view presented to the minds of his judges, which can legitimately bear upon that question. This is the office which the advocate performs. He is not morally responsible for the act of the party in maintaining an unjust cause, nor for the error of the court, if they fall into error, in deciding it in his favor. The court or jury ought certainly to hear and weigh both sides; and the office of the counsel is to assist them by doing that, which the client in person, from want of learning, experience, and address, is unable to do in a proper manner. The lawyer, who refuses his professional assistance because in his judgment the case is unjust and indefensible, usurps the functions of both judge and jury. As an answer to any sweeping objection made to the profession in general, the view thus presented may be quite satisfactory. It by no means follows, however, as a principle of private action for the advocate, that all causes are to be taken by him indiscriminately and conducted with a view to one single end, _success_. It is much to be feared, however, that the prevailing tone of professional ethics leads practically to this result. He has an undoubted right to refuse a retainer, and decline to be concerned in any cause, at his discretion. It is a discretion to be wisely and justly exercised. When he has once embarked in a case, he cannot retire from it without the consent of his client or the approbation of the court.[10] To come before the court with a revelation of facts, damning to his client's case, as a ground for retiring from it, would be a plain breach of the confidence reposed in him, and the law would seal his lips.[11] How then is he to acquit himself? Lord Brougham, in his justly celebrated defence of the Queen, went to very extravagant lengths upon this subject; no doubt he was led by the excitement of so great an occasion to say what cool reflection and sober reason certainly never can approve. "An advocate," said he, "in the discharge of his duty knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences; though it should be his unhappy lot to involve his country in confusion." On the other hand, and as illustrative of the practical difficulty, which this question presented to a man, with as nice a perception of moral duty as perhaps ever lived, it is said by Bishop Burnet, of Sir Matthew Hale: "If he saw a cause was unjust, he for a great while would not meddle further in it, but to give his advice that _it was so_; if the parties after that would go on, they were to seek another counsellor, for he would assist none in acts of injustice; if he found the cause doubtful or weak in point of law, he always advised his clients to agree their business. Yet afterwards he abated much of the scrupulosity he had about causes that appeared at first unjust, upon this occasion; there were two causes brought him, which by the ignorance of the party or their attorney, were so ill-represented to him that they seemed to be very bad; but he inquiring more narrowly into them, found they were really very good and just; so after this he slackened much of his former strictness of refusing to meddle in causes upon the ill circumstances that appeared in them at first."[12] It may be delicate and dangerous ground to tread upon to undertake to descend to particulars upon such a subject. Every case must, to a great degree, depend upon its own circumstances, known, peradventure, to the counsel alone; and it will often be hazardous to condemn either client or counsel upon what appears only. A hard plea--a sharp point--may subserve what is at bottom an honest claim, or just defence; though the evidence may not be within the power of the parties, which would make it manifest. There are a few propositions, however, which appear to me to be sound in themselves, and calculated to solve this problem practically in the majority of cases: at least to assist the mind in coming to a safe conclusion _in foro conscientiæ_, in the discharge of professional duty. There is a distinction to be made between the case of prosecution and defence for crimes; between appearing for a plaintiff in pursuit of an unjust claim, and for a defendant in resisting what appears to be a just one. Every man, accused of an offence, has a constitutional right to a trial according to law: even if guilty, he ought not to be convicted and undergo punishment unless upon legal evidence; and with all the forms which have been devised for the security of life and liberty. These are the panoply of innocence when unjustly arraigned; and guilt cannot be deprived of it, without removing it from innocence. He is entitled, therefore, to the benefit of counsel to conduct his defence, to cross-examine the witnesses for the State, to scan, with legal knowledge, the forms of the proceeding against him, to present his defence in an intelligible shape, to suggest all those reasonable doubts which may arise from the evidence as to his guilt, and to see that if he is convicted, it is according to law. A circumstance the celebrated Lord Shaftesbury once so finely turned to his purpose must often happen to a prisoner at his trial. Attempting to speak on the bill for granting counsel to prisoners in cases of high treason, he was confounded, and for some time could not proceed, but recovering himself, he said, "What now happened to him would serve to fortify the arguments for the bill. If he innocent and pleading for others was daunted at the augustness of such an assembly, what must a man be who should plead before them for his life?"[13] The courts are in the habit of assigning counsel to prisoners who are destitute, and who request it; and counsel thus named by the court cannot decline the office.[14] It is not to be termed screening the guilty from punishment, for the advocate to exert all his ability, learning, and ingenuity, in such a defence, even if he should be perfectly assured in his own mind of the actual guilt of the prisoner.[15] It is a different thing to engage as private counsel in a prosecution against a man whom he knows or believes to be innocent. Public prosecutions are carried on by a public officer, the Attorney-General, or those who act in his place; and it ought to be a clear case to induce gentlemen to engage on behalf of private interests or feelings, in such a prosecution. It ought never to be done against the counsel's own opinion of its merits. There is no call of professional duty to balance the scale, as there is in the case of a defendant. It is in every case but an act of courtesy in the Attorney-General to allow private counsel to take part for the Commonwealth; such a favor ought not to be asked, unless in a cause believed to be manifestly just. The same remarks apply to mere assistance in preparing such a cause for trial out of court, by getting ready and arranging the evidence and other matters connected with it: as the Commonwealth has its own officers, it may well, in general, be left to them. There is no obligation on an attorney to minister to the bad passions of his client; it is but rarely that a criminal prosecution is pursued for a valuable private end, the restoration of goods, the maintenance of the good name of the prosecutor, or closing the mouth of a man who has perjured himself in a court of justice. The office of Attorney-General is a public trust, which involves in the discharge of it, the exertion of an almost boundless discretion, by an officer who stands as impartial as a judge. "The professional assistant, with the regular deputy, exercises not his own discretion, but that of the Attorney-General, whose _locum tenens_ at sufferance, he is; and he consequently does so under the obligation of the official oath."[16] On the other hand, if it were considered that a lawyer was bound or even had a right to refuse to undertake the defence of a man because he thought him guilty, if the rule were universally adopted, the effect would be to deprive a defendant, in such cases, of the benefit of counsel altogether. The same course of remark applies to civil causes. A defendant has a legal right to require that the plaintiffs demand against him should be proved and proceeded with according to law. If it were thrown upon the parties themselves, there would he a very great inequality between them, according to their intelligence, education, and experience, respectively. Indeed, it is one of the most striking advantages of having a learned profession, who engage as a business in representing parties in courts of justice, that men are thus brought nearer to a condition of equality, that causes are tried and decided upon their merits, and do not depend upon the personal characters and qualifications of the immediate parties.[17] Thus, too, if a suit be instituted against a man to recover damages for a tort, the defendant has a right to all the ingenuity and eloquence he can command in his defence, that even if he has committed a wrong, the amount of the damages may not exceed what the plaintiff is justly entitled to recover. But the claim of a plaintiff stands upon a somewhat different footing. Counsel have an undoubted right, and are in duty bound, to refuse to be concerned for a plaintiff in the legal pursuit of a demand, which offends his sense of what is just and right. The courts are open to the party in person to prosecute his own claim, and plead his own cause; and although he ought to examine and be well-satisfied before he refuses to a suitor the benefit of his professional skill and learning, yet it would be on his part an immoral act to afford that assistance, when his conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him. "It is a popular but gross mistake," says the late Chief Justice Gibson, "to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself, in his office of attorney, with all fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment, much more so when he presses for the conviction of an innocent man.... The high and honorable office of a counsel would be degraded to that of a mercenary, were he compelled to do the biddings of his client against the dictates of his conscience."[18] The sentiment has been expressed in flowing numbers by our great commentator, Sir William Blackstone:-- "To Virtue and her friends a friend, Still may my voice the weak defend: Ne'er may my prostituted tongue Protect the oppressor in his wrong; Nor wrest the spirit of the laws, To sanctify the villain's cause." Another proposition which may be advanced upon this subject is, that there may and ought to be a difference made in the mode of conducting a defence against what is believed to be a righteous, and what is believed to be an unrighteous claim. A defence in the former case should be conducted upon the most liberal principles. When he is contending against the claim of one, who is seeking, as he believes, through the forms of law, to do his client an injury, the advocate may justifiably avail himself of every honorable ground to defeat him. He may begin at once by declaring to his opponent or his professional adviser, that he holds him at arm's length, and he may keep him so during the whole contest. He may fall back upon the instructions of his client, and refuse to yield any legal vantage ground, which may have been gained through the ignorance or inadvertence of his opponent. Counsel, however, may and even ought to refuse to act under instructions from a client to defeat what he believes to be an honest and just claim, by insisting upon the slips of the opposite party, by sharp practice, or special pleading--in short, by any other means than a fair trial on the merits in open court. There is no professional duty, no virtual engagement with the client, which compels an advocate to resort to such measures, to secure success in any cause, just or unjust; and when so instructed, if he believes it to be intended to gain an unrighteous object, he ought to throw up the cause, and retire from all connection with it, rather than thus he a participator in other men's sins. Moreover, no counsel can with propriety and a good conscience express to court or jury his belief in the justice of his client's cause, contrary to the fact. Indeed, the occasions are very rare in which he ought to throw the weight of his own private opinion into the scales in favor of the side he has espoused. If that opinion has been formed on a statement of facts not in evidence, it ought not to be heard,--it would be illegal and improper in the tribunal to allow any force whatever to it; if on the evidence only, it is enough to show from that the legal and moral grounds on which such opinion rests. Some very sound and judicious observations have been made by Mr. Whewell in a recent work on the Elements of Moral and Political Science, which deserve to be quoted at length;-- "Some moralists," says he, "have ranked with the cases in which convention supersedes the general rule of truth, an advocate asserting the justice, or his belief in the justice, of his client's cause. Those who contend for such indulgence argue that the profession is an instrument for the administration of justice: he is to do all he can for his client: the application of laws is a matter of great complexity and difficulty: that the right administration of them in doubtful cases is best provided for if the arguments on each side are urged with the utmost force. The advocate is not the judge. "This may be all well, if the advocate let it be so understood. But if in pleading he assert his belief that his cause is just when he believes it unjust, he offends against truth, as any other man would do who in like manner made a like assertion. "Every man, when he advocates a case in which morality is concerned, has an influence upon his hearers, which arises from the belief that he shares the moral sentiments of all mankind. This influence of his supposed morality is one of his possessions, which, like all his possessions, he is bound to use for moral ends. If he mix up his character as an advocate with his character as a moral agent, using his moral influence for the advocate's purpose, he acts immorally. He makes the moral rule subordinate to the professional rule. He sells to his client not only his skill and learning, but himself. He makes it the supreme object of his life to be not a good man, but a successful lawyer. "There belong to him, moreover, moral ends which regard his profession; namely, to make it an institution fitted to promote morality. To raise and purify the character of the profession, so that it may answer the ends of justice without requiring insincerity in the advocate, is a proper end for a good man who is a lawyer; a purpose on which he may well and worthily employ his efforts and influence."[19] Nothing need be added to enforce what has been so well said. The remark, however, may be permitted, that the expression of private opinion as to the merits of a controversy often puts the counsel at fearful odds. A young man, unknown to the court or the jury, is trying his first case against a veteran of standing and character: what will the asseveration of the former weigh against that of the latter? In proportion, then, to the age, experience, maturity of judgment, and professional character of the man, who falsely endeavors to impress the court and jury with the opinion of his confidence in the justice of his case, in that proportion is there danger that injury will be done and wrong inflicted--in that proportion is there moral delinquency in him who resorts to it. Much interest was excited some years ago in England, by the circumstances attending the defence of Courvoisier, indicted for the murder of Lord William Russell. The crime was one of great atrocity. It came out after his conviction, that during the trial he had confessed his guilt to his counsel, of whom the eminent barrister Charles Phillips, Esq., was one. Mr. Phillips was accused of having endeavored, notwithstanding this confession, to fasten suspicion on the other servants in the house, to induce the belief that the police had conspired with them to manufacture evidence against the prisoner, and to impress the jury with his own personal belief in the innocence of his client. How far these accusations were just in point of fact was the subject of lively discussion in the newspapers and periodicals of the time.[20] The language of counsel, on such occasions, during the excitement of the trial, in the fervor of an address to the jury, is not to be calmly and nicely scanned in the printed report. The testimony of such a witness as Baron Parke, at the time and on the spot,--he, too, aware of the exact position of Mr. Phillips--and that confirmed by Chief Justice Tindal, is conclusive. To charge him with _acting falsehood_, that is, with presenting the case as it appeared upon the testimony, earnestly and confidently, means that he did not do that, which would have been worse than retiring from his post. The non-professional, as well as professional public in England, however, agreed in saying that he would not have been justified in withdrawing from the case: he was still bound to defend the accused upon the evidence; though a knowledge of his guilt, from whatever source derived, might and ought materially to influence the mode of the defence. No right-minded man, professional or otherwise, will contend that it would have been right in him to have lent himself to a defence, which might have ended, had it been successful, in bringing down an unjust suspicion upon an innocent person; or even to stand up and falsely pretend a confidence in the truth and justice of his cause, which he did not feel. But there were those on this side of the Atlantic, who demurred to the conclusion, that an advocate is under a moral obligation to maintain the defence of a man who has admitted to him his guilt. Men have been known, however, under the influence of some delusion, to confess themselves guilty of crimes which they had not committed: and hence, to decline acting as counsel in such a case, is a dangerous refinement in morals.[21] Nothing seems plainer than the proposition, that a person accused of a crime is to be tried and convicted, if convicted at all, _upon evidence_, and _whether guilty or not guilty_, if the evidence is insufficient to convict him, he has _a legal right_ to be acquitted. The tribunal that convicts without sufficient evidence may decide according to the fact; but the next jury, acting on the same principle, may condemn an innocent man. If this be so, is not the prisoner in every case entitled to have the evidence carefully sifted, the weak points of the prosecution exposed, the reasonable doubts presented which should weigh in his favor? And what offence to truth or morality does his advocate commit in discharging that duty to the best of his learning and ability? What apology can he make for throwing up his brief? The truth he cannot disclose; the law seals his lips as to what has thus been communicated to him in confidence by his client. He has no alternative, then, but to perform his duty. It is his duty, however, as an advocate merely, as Baron Parke has well expressed it, to use ALL FAIR ARGUMENTS ARISING ON THE EVIDENCE. Beyond that, he is not bound to go in any case; in a case in which he is satisfied in his own mind of the guilt of the accused, he is not justified in going. Under all circumstances, the utmost candor should be used towards the client. This is imperatively demanded alike by considerations of duty and interest. It is much better for a man occasionally to lose a good client, than to fail in so plain a matter. It is nothing but selfishness that can operate upon a lawyer when consulted to conceal from the party his candid opinion of the merits, and the probable result. It is fair that he should know it; for he may not choose to employ a man whose views may operate to check his resorting to all lawful means to effect success. Besides, most men, when they consult an attorney, wish a candid opinion; it is what they ask and pay for. It is true, that it is often very hard to persuade a man that he has not the best side of a lawsuit: his interest blinds his judgment: his passion will not allow him to reflect calmly, and give due weight to opposing considerations. There are many persons who will go from lawyer to lawyer with a case, until they find one who is willing to express an opinion which tallies with their own. Such a client the lawyer, who acts firmly upon the principle to which I have adverted, will now and then lose; but even such an one, when finally unsuccessful, as the great probability is that he will be, when he comes to sit down and calculate all that he has lost in time, money, and character, by acting contrary to the advice first given, will revert to the candid and honest opinion he then received, and determine, if ever he gets into another difficulty of the kind, to resort to that attorney, and abide by his advice. Thus may a man build up for himself a character far outweighing, even in pecuniary value, all such paltry particular losses; it is to such men that the best clients resort; they have the most important and interesting lawsuits, and enjoy by far the most lucrative practice. A very important part of the advocate's duty is to moderate the passions of the party, and where the case is of a character to justify it, to encourage an amicable compromise of the controversy. It happens too often at the close of a protracted litigation that it is discovered, when too late, that the play has not been worth the candle, and that it would have been better, calculating everything, for the successful party never to have embarked in it--to have paid the claim, if defendant, or to have relinquished it, if he was plaintiff. Counsel can very soon discover whether such is likely to be the case, and it cannot be doubted what their plain duty is under such circumstances. Besides this, the advocate is bound in honor, as well as duty, to disclose to the client at the time of the retainer, every circumstance of his own connection with the parties or prior relation to the controversy, which can or may influence his determination in the selection of him for the office. An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the latter. No man can be supposed to be indifferent to the knowledge of facts, which work directly on his interests, or bear on the freedom of his choice of counsel. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements which interfere, in any degree, with his exclusive devotion to the cause confided to him; that he has no interest which may betray his judgment or endanger his fidelity.[22] It is in some measure the duty of counsel to be the keeper of the conscience of the client; not to suffer him, through the influence of his feelings or interest, to do or say anything wrong in itself, and of which he would himself afterwards repent. This guardianship may be carefully, and at the same time kindly exerted. One particular will be mentioned in which its exercise is frequently called for. The client will be often required, in the course of a cause, to make affidavits of various kinds. There is no part of his business with his client, in which a lawyer should be more cautious, or even punctilious, than this. He should be careful lest he incur the moral guilt of subornation of perjury, if not the legal offence. An attorney may have communications with his client in such a way, in instructing him as to what the law requires him to state under oath or affirmation, in order to accomplish any particular object in view, as to offer an almost irresistible temptation and persuasion to stretch the conscience of the affiant up to the required point. Instead of drawing affidavits, and permitting them to be sworn to as a matter of course, as it is to be feared is too often the case, counsel should on all occasions take care to treat an oath with great solemnity, as a transaction to be very scrupulously watched, because involving great moral peril as well as liability to public disgrace and infamy. It lies especially in the way of the profession to give a high tone to public sentiment upon this all-important subject, the sacredness of an oath. It is always the wisest and best course, to have an interview with the client, and draw from him by questions, whether he knows the facts which you know he is required to state, so that you may judge whether, as a conscientious man, he ought to make such affidavit. Another particular may be adverted to: the attempt to cover property from the just demands of creditors. It is to be feared that gentlemen of the Bar sometimes shut their eyes and, under the influence of feelings of commiseration for an unfortunate client, feign not to see what is really very palpable to everybody else. Surely they ought never to sanction, directly or indirectly such shams, especially when the machinery of a judicial sale is introduced more securely to accomplish the object. A purchase is made in the name of a friend for the debtor's benefit and with the debtor's money, though it may be hard to make that appear by legal evidence. When advice is asked, as it sometimes is, how such a thing may be safely and legally done, the idea held prominently before the party by his counsel should be, that his estate is the property of his creditors, and that nothing but their consent will justify an appropriation of any part of it to his benefit. Lawyers too may very materially assist in giving a high tone to public sentiment in the matter of stay and exemption laws. It is not every case in which a man has a legal that he has a moral right to claim the benefit of such laws. When a debtor with ample means to pay only wants to harass and worry his creditor, who has resorted to legal process and obtained a judgment, by keeping him out of his money, as it is often expressed, as long as he can; or where he wishes to take advantage of hard times to make more than legal interest, or with concealed means unknown to the execution plaintiff, claims the exemption: these are cases which counsel ought to hold up in their proper light to those whom they advise, and wash their hands of the responsibility of them. According to the Jewish law, the cloak or outer garment, which was generally used by the poorer classes as a covering during sleep, could not be retained by the creditor to whom it had been given in pledge, and of course was exempt by law from seizure for debt; and our blessed Saviour, in his sermon on the mount, has been supposed to refer to this exemption law, when he said: "And if any man will sue thee at the law and take away thy coat, let him have thy cloak also;" that is, confine not yourself in your transactions with your fellow-men to giving them simply the strict measure of their legal rights: give them all that is honestly theirs as far as you have ability, whether the law affords them a remedy or not. There have been some noble instances of bankrupts who, upon subsequently retrieving their fortunes, have fully discharged all their old debts, principal and interest, though released or barred by the Statute of Limitations; but such instances would be more common if the spirit of the high and pure morality, which breathes through the sermon on the mount, prevailed more extensively. An important clause in the official oath is "to delay no man's cause for lucre or malice." It refers, no doubt, primarily, to the cause intrusted to the attorney, and prohibits him from resorting to such means for the purpose of procuring more fees, or of indulging any feeling he may have against his client personally. Such conduct would be a clear case of a violation of the oath. But it is a question, also, whether the case generally, in which he is retained, is not comprehended.[23] How far, then, can he safely go in delaying the cause for the benefit of, and in pursuance of the instructions of his client? A man comes to him and says: "I have no defence to this claim; it is just and due, but I have not the means to pay it; I want all the time you can get for me." The best plan in such instances, is, no doubt, at once frankly to address his opponent, and he will generally be willing to grant all the delay which he knows, in the ordinary course can be gained, and perhaps more, as a consideration for his own time and trouble saved. If, however, that be impracticable, it would seem that the suitor has a right to all the delay, which is incident to the ordinary course of justice. The counsel may take all means for this purpose, which do not involve artifice or falsehood in himself or the party. The formal pleas put in are not to be considered as false in this aspect, except such as are required to be sustained by oath. In an ejectment, for example, an appearance need not be entered until the second term, the legislature having seen fit to give that much respite to the unjust possessor of real estate. But to stand by and see a client swear off a case on account of the absence of a material witness, when he knows that no witness can be material; or further to make affidavit that his appeal or writ of error is not intended for delay, when he knows that it is intended for nothing else, no high-minded man will be privy or consent to such actions, much less have any active participation in them. Subject, however, to the qualifications which have been stated, when a cause is undertaken, the great duty which the counsel owes to his client, is an immovable fidelity. Every consideration should induce an honest and honorable man to regard himself, as far as the cause is concerned, as completely identified with his client. The criminal and disgraceful offence of taking fees of two adversaries, of allowing himself to be approached corruptly, whether directly or indirectly, with a view to conciliation, ought, like parricide in the Athenian law, to be passed over in silence in a code of professional ethics.[24] All considerations of self should be sunk by the lawyer in his duty to the cause. The adversary may be a man of station, wealth, and influence; his good will may be highly valuable to him; his enmity may do him great injury. He should not permit such thoughts to arise in his mind. He should do his duty manfully, without fear, favor, or affection. At the same time, let it be observed, that no man ought to allow himself to be hired to abuse the opposite party. It is not a desirable professional reputation to live and die with, that of a rough tongue, which makes a man to be sought out, and retained to gratify the malevolent feelings of a suitor in hearing the other side well lashed and vilified. An opponent should always be treated with civility and courtesy, and if it be necessary to say severe things of him or his witnesses, let it be done in the language, and with the bearing, of a gentleman. There is no point in which it becomes an advocate to be more cautious, than in his treatment of the witnesses. In general, fierce assaults upon them, unnecessary trifling with their feelings, rough and uncivil behavior towards them in cross-examination, whilst it may sometimes exasperate them to such a pitch, that they will perjure themselves in the drunkenness of their passion, still, most generally tells badly on the jury. They are apt to sympathize with a witness under such circumstances.[25] It is as well unwise as unprofessional, in counsel, to accuse a witness of having forsworn himself, unless some good ground, other than the mere instruction of the client, is present in the evidence to justify it. He may sift most searchingly, and yet with a manner and courtesy which affords no ground for irritation, either in witness or opponent; and in such case, if his questions produce irritation, it is a circumstance which will weigh in his favor. The practitioner owes to his client, with unshaken fidelity, the exertion of all the industry and application of which he is capable to become perfect master of the questions at issue, to look at them in all their bearings, to place himself in the opposite interest, and to consider and be prepared as far as possible, for all that may be said or done on the contrary part. The duty of full and constant preparation, is too evident to require much elaboration. It is better, whenever it is possible to do so, to make this examination immediately upon the retainer, and not to postpone it to later stages in the proceedings. The opportunity is often lost, of ascertaining facts, and securing evidence, from putting off till too late, the business of understanding thoroughly all that it will be necessary to adduce on the trial. In this way, a lawyer will attain what is very important, that his client may be always prepared, as well as himself, have his attention alive to his case, know what witnesses are important, and keep a watch upon them, so that their testimony may not be lost, and upon the movements of his adversary, lest he should at any time be taken by surprise. It would be an excellent rule for him, at short stated periods, to make an examination of the record of every case which he has under his charge. It always operates disadvantageously to an attorney in the eyes of those who employ him, as well as the public, when he fails in consequence of some neglect or oversight. Frequent applications to the court, to relieve him from the consequences of his inattention, tell badly on his character and business. He may be able to make very plausible excuses; but the public take notice, that some men with large business never have occasion to make such excuses, and that other men with less, are constantly making them. Every instance of the kind helps to make up such a character. A young man should be particularly cautious, and dread such occurrences as highly injurious to his prospects. If he escapes the notice and animadversion of his constituent, and the legal consequences of his neglect, by the intervention of the court, or the indulgence of his opponent, the members of the Bar are lynx-eyed in observing such things. It may appear like digressing from our subject, to speak of such qualities as attention, accuracy, and punctuality, but like the minor morals of common life, they are little rills which at times unite and form great rivers. A life of dishonor and obscurity, if not ignominy, has often taken its rise from the fountain of a little habit of inattention and procrastination. System is everything. It can accomplish wonders. By this alone, as by a magic talisman, may time be so economized that business can be attended to and opportunities saved for study, general reading, exercise, recreation, and society. "A man that is young in years," says Lord Bacon, "may be old in hours, if he has lost no time." Hurry and confusion result from the want of system; and the mind can never be clear when a man's papers and business are in disorder. It is recorded of the pensionary De Witt, of the United Provinces, who fell a victim to the fury of the populace in the year 1672, that he did the whole business of the republic, and yet had time left for relaxation and study in the evenings. When he was asked how he could possibly bring this to pass, his answer was, that "nothing was so easy; for that it was only doing one thing at a time, and never putting off anything till to-morrow that could he done to-day." "This steady and undissipated attention to one object," remarks Lord Chesterfield, in relating this anecdote, "is a sure mark of a superior genius." It is of the highest importance, also, that a lawyer should in early professional life, cultivate the habit of accuracy. It is a great advantage over opposing counsel,--a great recommendation in the eyes of intelligent mercantile and business men. A professional note to a merchant carelessly written will often of itself produce an unfavorable impression on his mind; and that impression he may communicate to many others. The importance of a good handwriting cannot be overrated. A plain legible hand every man can write who chooses to take the pains. A good handwriting is a passport to the favor of clients, and to the good graces of judges, when papers come to be submitted to them. It would be a good rule for a young lawyer, though at first perhaps irksome and inconvenient, never to suffer a letter or paper to pass from his hands with an erasure or interlineation. The time and trouble it may cost at the outset will be repaid in the end by the habit he will thereby acquire of transacting his business with care, neatness, and accuracy. He cannot be faithful to his clients unless he continues to be a hard student of the learning of his profession. Not merely that he should thoroughly investigate the law applicable to every case which may be intrusted to him; though that, besides its paramount necessity to enable him to meet the responsibility he has assumed to that particular client, will be the subsidiary means of important progress in his professional acquisitions. "Let any person," says Mr. Preston, "study one or two heads of the law fully and minutely, and he will have laid the foundation or acquired the aptitude for comprehending other heads of the law."[26] But, besides this, he should pursue the systematic study of his profession upon some well-matured plan. When admitted to the Bar, a young man has but just begun, not finished, his legal education. If he have mastered some of the most general elementary principles, and has acquired a taste for the study, it is as much as can be expected from his clerkship. There are few young men who come to the Bar, who cannot find ample time in the first five or seven years of their novitiate, to devote to a complete acquisition of the science they profess, if they truly feel the need of it, and resolve to attain it. The danger is great that from a faulty preparation,--from not being made to see and appreciate the depth, extent, and variety of the knowledge they are to seek, they will mistake the smattering they have acquired for profound attainments. The anxiety of the young lawyer is a natural one at once to get business--as much business as he can. Throwing aside his books, he resorts to the many means at hand of gaining notoriety and attracting public attention, with a view of bringing clients to his office. Such an one in time never fails to learn much by his mistakes, but at a sad expense of character, feeling, and conscience. He at last finds that in law, as in every branch of knowledge, "a little learning is a dangerous thing;" that what he does not know falsifies often in its actual application that which he supposed he certainly did know; and after the most valuable portion of his life has been frittered away upon objects unworthy of his ambition, he is too apt to conclude that it is now too late to redeem his time; he finds that he has lost all relish for systematic study, and when he is driven to the investigation of particular questions, is confounded and embarrassed--unable to thread his way through the mazes of authorities, to reconcile apparently conflicting cases, or deduce any satisfactory conclusion from them--in short, he has no greater aptitude, accuracy, and discrimination than when he set out in the beginning of his studies. No better advice can be given to a young practitioner, than to confine himself generally to his office and books, even if this should require self-denial and privation, to map out for himself a course of regular studies, more or less extended, according to circumstances, to aim at mastering the works of the great luminaries of the science, Coke, Fearne, Preston, Powell, Sugden, and others, not forgetting the maxim, _melius est petere fontes quam sectari rivulos_, and to investigate for himself the most important and interesting questions, by an examination and research of the original authorities. "He that reacheth deepest seeth the amiable and admirable, secrets of the law,"[27] and thus may the student "proceed in his reading with alacrity, and set upon and know how to work into with delight these rough mines of hidden treasure."[28] It may be allowed here to commend to most serious consideration, the remarks of one of the most eminent of the profession--Horace Binney--a gentleman of our own Bar, whose example enforces and illustrates their value: "There are two very different methods of acquiring a knowledge of the laws of England, and by each of them, men have succeeded in public estimation to an almost equal extent. One of them, which may be called the old way, is a methodical study of the general system of law, and of its grounds and reasons, beginning with the fundamental law of estates and tenures, and pursuing the derivative branches in logical succession, and the collateral subjects in due order; by which the student acquires a knowledge of principles that rule in all departments of the science, and learns to feel as much as to know what is in harmony with the system and what not. The other is, to get an outline of the system, by the aid of commentaries, and to fill it up by the desultory reading of treatises and reports, according to the bent of the student, without much shape or certainty in the knowledge so acquired, until it is given by investigation in the course of practice. A good deal of law may be put together by a facile or flexible man, in the second of these modes, and the public are often satisfied; but the profession itself knows the first, by its fruits, to be the most effectual way of making a great lawyer."[29] Such a course of study as is here recommended, is not the work of a day or a year. In the meantime let business seek the young attorney; and though it may come in slowly, and at intervals, and promise in its character neither fame nor profit, still, if he bears in mind that it is an important part of his training, that he should understand the business he does thoroughly, that he should especially cultivate, in transacting it, habits of neatness, accuracy, punctuality, and despatch, candor towards his client, and strict honor towards his adversary, it may be safely prophesied that his business will grow as fast as it is good for him that it should grow; while he gradually becomes able to sustain the largest practice, without being bewildered and overwhelmed. Let him be careful, however, not to settle down into a mere lawyer. To reach the highest walks of the profession, something more is needed. Let polite literature be cultivated in hours of relaxation. Let him lose not his acquaintance with the models of ancient taste and eloquence. He should study languages, as well from their practical utility in a country so full of foreigners, as from the mental discipline, and the rich stores they furnish. He should cultivate a pleasing style, and an easy and graceful address. It may be true, that in a "court of justice, the veriest dolt that ever stammered a sentence, would be more attended to, with a case in point, than Cicero with all his eloquence, unsupported by authorities,"[30] yet even an argument on a dry point of law, produces a better impression, secures a more attentive auditor in the judge, when it is constructed and put together with attention to the rules of the rhetorical art; when it is delivered, not stammeringly, but fluently; when facts and principles, drawn from other fields of knowledge, are invoked to support and adorn it; when voice, and gesture, and animation, give it all that attraction which earnestness always and alone imparts. There is great danger that law reading, pursued to the exclusion of everything else, will cramp and dwarf the mind, shackle it by the technicalities with which it has become so familiar, and disable it from taking enlarged and comprehensive views even of topics falling within its compass as well as of those lying beyond its legitimate domain. An amusing instance of this is said to have occurred in the debate in the House of Commons, on the great question as to the right of the Parliament of Great Britain to tax the Colonies. At the close of the discussion, in which Fox and Burke, as well as others, had distinguished themselves, a learned lawyer arose and said that the real point on which the whole matter turned, had been unaccountably overlooked. In the midst of deep silence and anxious expectation from all quarters of the House, he proceeded to show that the lands of the Colonies had been originally granted by the Crown, and were held _ut de honore_, as of the Manor of Greenwich, in the county of Kent; and thence he concluded that as the Manor of Greenwich was represented in Parliament, so the lands of the North American Colonies (by tenure, a part of the Manor) were represented by the knights of the shire for Kent.[31] Let me remark, too, before hastening to another topic more immediately connected with the duties of active professional life, that the cultivation of a taste for polite literature has other importance besides its value as a preparation and qualification for practice and forensic contests. Nothing is so well adapted to fill up the interstices of business with rational enjoyment, to make even a solitary life agreeable, and to smooth pleasantly and honorably the downward path of age. The mental vigor of one who is fond of reading, other things being equal, becomes impaired at a much later period of life. The lover of books has faithful companions and friends, who will never forsake him under the most adverse circumstances. "As soon as I found," said Sir Samuel Romilly, "that I was to be a busy lawyer for life, I strenuously resolved to keep up my habit of non-professional reading; for I had witnessed so much misery in the last years of many great lawyers, whom I had known, from their loss of all taste for books, that I regarded their fate as my warning." Mr. Gibbon was wont to say that he would not exchange his love of reading for the wealth of the Indies. It is indeed a fortune, of which the world's reverses can never deprive us. It fortifies the soul against the calamities of life. It moderates, if it is not strong enough to govern and control the passions. It favors not the association of the cup, the dice-box, or the debauch. The atmosphere of a library is uncongenial with them. It clings to home, nourishes the domestic affections, and the hopes and consolations of religion. Another very delicate and often embarrassing question in the relation of attorney and client is in regard to the subject of compensation for professional services. In all countries advanced in civilization, and whose laws and manners have attained any degree of refinement, there has arisen an order of advocates devoted to prosecuting or defending the lawsuits of others. Before the tribunals of Athens, although the party pleaded his own cause, it was usual to have the oration prepared by one of an order of men devoted to this business, and to compensate him liberally for his skill and learning. Many of the orations of Isocrates, which have been handed down to us, are but private pleadings of this character. He is said to have received one fee of twenty talents, about eighteen thousand dollars of our money, for a speech that he wrote for Nicocles, king of Cyprus. Still, from all that appears, the compensation thus received was honorary or gratuitous merely. Among the early institutions of Rome, the relation of patron and client, which existed between the patrician and plebeian, bound the former to render the latter assistance and protection in his lawsuits, with no other return than the general duty, which the client owed to his patron. As every patrician could not be a sufficiently profound lawyer to resolve all difficulties, which might arise in the progress of a complex system of government and laws, though he still might accomplish himself in the art of eloquence, there arose soon a new order of men, the jurisconsults. They also received no compensation. On the public days of market, or assembly, the masters of the art were seen walking in the forum, ready to impart the needful advice to the meanest of their fellow-citizens, from whose votes on a future occasion, they might solicit a grateful return. As their years and honors increased, they seated themselves at home, on a chair or throne, to expect with patient gravity the visits of their clients, who at the dawn of day, from the town and country, began to thunder at their doors.[32] Often, indeed, the patron was able in his own person to exercise the office both of advocate and counsellor. It was only in the more glorious, because the more virtuous, period of the republic, that the relation was sustained upon so honorable a foundation. In the progress of society, the business of advocating causes became a distinct profession; and then it was usual to pay a fee in advance, which was called a gratuity or present. As this was a mere honorary recompense, the client was under no legal obligation to pay it. But the result necessarily was, that if the usual present was not given, the advocate did not consider himself bound in honor to undertake the advocation of the cause before the courts. Afterwards, Marcus Cincius Alimentus, the tribune of the people, procured the passage of the law known as the _Cincian_ law, prohibiting the patron or advocate from receiving any money or other present for any cause; and annulling all gratuities or presents made by the client to the patron or advocate. But as no penalty was prescribed for the breach of the law, it of course became a dead letter. The Emperor Augustus afterwards re-enacted the Cincian law, and prescribed penalties for its breach. But towards the end of his reign, the advocates were again authorized to receive fees or presents from their clients. The Emperor Tiberius also permitted them to receive such forced gratuities. This led to the abuse referred to by Tacitus, and induced the Senate to insist upon the enforcement of the re-enactment of the Cincian law, or rather a law limiting the amount of the fees of advocates.[33] Nero revoked the law of Claudian, which was subsequently re-enacted by the Emperor Trajan, with the additional restriction that the advocate should not be permitted to receive his fee or gratuity, until the cause was decided. The younger Pliny mentions a law, which authorized the advocate, after the pleadings in the cause had been made and the judgment had been given, to receive the fee, which might be voluntarily offered by the client, either in money or a promise to pay. Erskine, in his Institutes of the Law of Scotland, understands the law in the Digest _De Extraordinariis Cognitionibus_ as authorizing a suit for the fee of a physician or advocate without a previous agreement for a specific sum.[34] The consequences may be best told in the impressive language of the historian of the Decline and Fall of the Empire: "The noble art, which had once been preserved as the sacred inheritance of the patricians, was fallen into the hands of freedmen and plebeians, who, with cunning rather than with skill, exercised a sordid and pernicious trade. Some of them procured admittance into families for the purpose of fomenting differences, of encouraging suits, and of preparing a harvest of gain for themselves or their brethren. Others, recluse in their chambers, maintained the dignity of legal professors, by furnishing a rich client with subtleties to confound the plainest truth, and with arguments to color the most unjustifiable pretensions. The splendid and popular class was composed of the advocates, who filled the Forum with the sound of their turgid and loquacious rhetoric. Careless of fame and of justice, they are described for the most part, as ignorant and rapacious guides, who conducted their clients through a maze of expense, of delay, and of disappointment; from whence, after a tedious series of years, they were at length dismissed when their patience and fortune were almost exhausted."[35] Is not this probably the history of the decline of the profession in all countries from an honorable office to a money-making trade? It is the established law of England, that a counsellor or barrister cannot maintain a suit for his fees.[36] There is in that country a class of mere attorneys, who attend to legal business out of court, who bring suits and conduct them up to issue; but who are not allowed to speak in court. This latter privilege is confined to serjeants and barristers. Attorneys are regulated by statute, and are subject to many restrictions; having a rate of fees, settled either by statute or established usage; and required to be fixed by the taxation of an officer of the court before a suit can be brought for them. Barristers are admitted only under the regulations established by the various inns of court; and the serjeants, who long had the monopoly of the Bar of the Common Pleas, are appointed by patent from the king. A barrister cannot be an attorney.[37] In this country, there is in general no distinction between attorneys and counsellors. The same persons fulfil the duties of both. Hence no difference is made between their right to recover compensation for services in the one capacity or the other.[38] In Pennsylvania, it was held at one time that an attorney could not recover, without an express promise, anything beyond the trifling and totally inadequate sum provided in the fee-bill. That pure and eminent jurist Chief Justice Tilghman thought that the policy of refusing a legal remedy for anything beyond that had not been adopted without great consideration.[39] He stands not alone in the opinion that it has been neither for the honor nor profit of the Bar to depart from the ancient rule.[40] It has been departed from in this State, and the early decision overruled, however; and it must be frankly admitted, that the current of decisions in our sister States is in the same way.[41] It is supposed that the ancient rule was artificial in its structure, and practically unjust,--that it is wholly inconsistent with our ideas of equality to suppose that the business or profession, by which any one earns the daily bread of himself or of his family, is so much more honorable than the business of other members of the community as to prevent him from receiving a fair compensation for his services on that account.[42] It has been pronounced ridiculous to attempt to perpetuate a monstrous legal fiction, by which the hard-working lawyers of our day, toiling till midnight in their offices, are to be regarded in the eye of the law in the light of the patrician jurisconsults of ancient Rome, when ---- dulce diu fuit et solemne, reclusa Mane domo vigilare, clienti promere jura,-- and who at daybreak received the early visits of their humble and dependent clients, and pronounced with mysterious brevity the oracles of the law.[43] These are arguments which are more plausible than sound: they are imposing, but not solid. The question really is, what is best for the people at large,--what will be most likely to secure them a high-minded, honorable Bar? It is all-important that the profession should have and deserve that character. A horde of pettifogging, barratrous, custom-seeking, money-making lawyers, is one of the greatest curses with which any state or community can be visited. What more likely to bring about such a result than a decision, which strips the Bar of its character as a learned profession, on the principle avowed by one court, that it is now a calling as much as any mechanical art,--or by another, in effect, that the order of things is in the present condition of society reversed, and clients are really the _patrons_ of their attorneys? A more plausible reason is that the client is safer from the oppression of extortionate counsel, by putting both upon the equal footing of legal right and obligation. It would appear, however, better that the parties should make an express agreement before or at the time of retainer, or that the amount should be left to the justice of the counsel, and the honor and liberality of the client subsequently. Every judge, who has ever tried a case between attorney and client, has felt the delicacy and difficulty of saying what is the measure of just compensation. It is to be graduated, according to a high legal authority, with a proper reference to the nature of the business performed by the counsel for the client, and his standing in his profession for learning and skill; whereby the value of his services is enhanced to his client.[44] Is then the standing and character of the counsel in his profession for learning and skill to be a question of fact to be determined by the jury in every case in which a lawyer sues his client? How determined, if necessary to the decision of the question? Not surely by the crude opinions of the jurors; but by testimony of members of the same profession on the subject. This never is done; it would be a very difficult as well as delicate question for a lawyer to pronounce upon the standing of a professional brother. The most that can be done is to call gentlemen to say what they would have considered reasonable for such services, had they been performed by themselves. Some may testify up to a very high point, from an excusable, though foolish vanity; others to a very low one, from the despicable, desire of attracting custom to a cheap shop.[45] No one can ever have seen such a cause tried without feeling, that the Bar had received by it an impulse downwards in the eyes of bystanders and the community. The case is thrown into the jury-box, to be decided at haphazard, according as the twelve men may chance to think or feel. He, who narrowly watches such controversies, cannot fail to see that the right of a counsel to enforce his claim for legal compensation is far from being calculated to protect the client from oppression and extortion. It is not worth while, however, to quarrel with the decision. Let us inquire rather what should be the course of counsel, without regard to it. He certainly owes it to his profession, as well as himself, that when the client has the ability, his services should be recompensed; and that according to a liberal standard.[46] There are many cases, in which it will be his duty, perhaps more properly his privilege, to work for nothing. It is to be hoped, that the time will never come, at this or any other Bar in this country, when a poor man with an honest cause, though without a fee, cannot obtain the services of honorable counsel, in the prosecution or defence of his rights. But it must be an extraordinary--a very peculiar case--that will justify an attorney in resorting to legal proceedings, to enforce the payment of fees. It is better that he should be a loser, than have a public contest upon the subject with a client. The enlightened Bar of Paris, have justly considered the character of their order involved in such proceedings; and although by the law of France, an advocate may recover for his fees by suit, yet they regard it as dishonorable, and those who should attempt to do it, would be immediately stricken from the roll of attorneys.[47] Regard should be had to the general usage of the profession, especially as to the rates of commission to be charged for the collection of undefended claims. Except in this class of cases, agreements between counsel and client that the compensation of the former shall depend upon final success in the lawsuit--in other words contingent fees--however common such agreements may be, are of a very dangerous tendency, and to be declined in all ordinary cases. In making his charge, after the business committed to him has been completed, as an attorney may well take into consideration the general ability of his client to pay, so he may also consider the pecuniary benefit, which may have been derived from his services. For a poor man, who is unable to pay at all, there may be a general understanding that the attorney is to be liberally compensated in case of success. What is objected to, is an agreement to receive a certain part or proportion of the sum, or subject-matter, in the event of a recovery, and nothing otherwise. It is unnecessary to inquire here whether such a contract is void as champertous, and contrary to public policy. None of the English statutes on the subject of champerty have been reported as in force here; but it was once a question whether it was not an offence at common law, independently altogether, of any statute enactment. Enlightened judges in several of our sister States have so considered it. "The purchase of a lawsuit," says Chancellor Kent, "by an attorney, is champerty in its most odious form; and it ought equally to be condemned on principles of public policy. It would lead to fraud, oppression, and corruption. As a sworn minister of the courts of justice, the attorney ought not to be permitted to avail himself of the knowledge he acquires in his professional character, to speculate in lawsuits. The precedent would tend to corrupt the profession, and produce lasting mischief to the community."[48] "This is not the time nor place," says Chief Justice Gibson, "to discuss the legality of contingent fees; though it be clear that if the British statutes of champerty were in force here, such fees would be prohibited by them. But a contract of the sort is certainly not to be encouraged by implication, from a questionable usage, nor established by less than a positive stipulation."[49] A contract to allow a compensation for services in procuring the passage of a private Act of Assembly, has been held to be unlawful and void, as against public policy.[50] "The practice," said Judge Rogers, in delivering the opinion of the court, "which has generally obtained in this State, to allow a contingent compensation for legal services, has been a subject of regret; nor am I aware of any direct decision by which the practice has received judicial sanction in our courts." The case of _Ex parte Plitt_,[51] however, recognizes fully the lawfulness of contingent fees, though in his opinion Judge Kane says: "It is not a practice to be generally commended, exposing honorable men not unfrequently to misapprehension and illiberal remark, and giving the apparent sanction of their example to conduct, which they would be among the foremost to reprehend. Such contracts may sometimes be necessary in a community such as that of Pennsylvania has been, and perhaps as it is yet; and when they have been made in abundant good faith--_uberrima fide_--without suppression or reserve of fact or exaggeration of apprehended difficulties, or under influence of any sort or degree; and when the compensation bargained for is absolutely just and fair, so that the transaction is characterized throughout by 'all good fidelity to the client,' the court will hold such contracts to be valid. But it is unnecessary to say, that such contracts, as they can scarcely be excepted from the general rule, which denounces as suspicious the dealings of fiduciaries with those under their protection, must undergo the most exact and jealous scrutiny before they can expect the judicial ratification." Finally, the question of law may be considered as at rest in Pennsylvania by the decision of the Supreme Court in Patten _v._ Wilson,[52] which recognized an agreement between counsel and client to pay him out of the verdict as an equitable assignment, and gave effect to it as against an attaching creditor. It is not, however, with the lawfulness, but with the policy and morality of the practice, that we are now dealing. Admitting its legality, is it consistent with that high standard of moral excellence, which the members of this profession should ever propose to themselves? Let us look at what would be the results of such a practice, if it became general. If these are bad, if its tendency is to corrupt and degrade the character of the profession, then, however confident any man may feel in his moral power to ward off its evil influences from his own character and conduct, he should be careful not to encourage and give countenance to it by his example. It is one of that class of actions, which in particular instances may be indifferent; but their morality is to be tested by considering what would be the consequences of their general prevalence. It is to be observed, then, that such a contract changes entirely the relation of counsel, to the cause. It reduces him from his high position of an officer of the court and a minister of justice, to that of a party litigating his own claim. Having now a deep personal interest in the event of the controversy, he will cease to consider himself subject to the ordinary rules of professional conduct. He is tempted to make success, at all hazards and by all means, the sole end of his exertions. He becomes blind to the merits of the case, and would find it difficult to persuade himself, no matter what state of facts might be developed in the progress of the proceedings, as to the true character of the transaction, that it was his duty to retire from it. It places his client and himself in a new and dangerous relation. They are no longer attorney and client, but partners. He has now an interest, which gives him a right to speak as principal, not merely to advise as to the law, and abide by instructions. It is either unfair to him or unfair to the client. If he thinks the result doubtful, he throws all his time, learning, and skill away upon what, in his estimation, is an uncertain chance. He cannot work with the proper spirit in such a case. If he believes that the result will be success, he secures in this way a higher compensation than he is justly entitled to receive. It is an undue encouragement to litigation. Men, who would not think of entering on a lawsuit, if they knew that they must compensate their lawyer whether they win or lose, are ready upon such a contingent agreement to try their chances with any kind of a claim. It makes the law more of a lottery than it is. The worst consequence is yet to be told,--its effect upon, professional character. It turns lawyers into higglers with their clients. Of course it is not meant that these are always its actual results; but they are its inevitable tendencies,--in many instances its practical working. To drive a favorable bargain with the suitor in the first place, the difficulties of the case are magnified and multiplied, and advantage taken of that very confidence, which led him to intrust his interests to the protection of the advocate.[53] The parties are necessarily not on an equal footing in making such a bargain. A high sense of honor may prevent counsel from abusing his position and knowledge; but all have not such high and nice sense of honor. If our example goes towards making the practice of agreements for contingent fees general, we assist in placing such temptations in the way of our professional brethren of all degrees--the young, the inexperienced, and the unwary, as well as those whose age and experience have taught them that a lawyer's honor is his brightest jewel, and to be guarded from being sullied, even by the breath of suspicion, with the most sedulous care. A gentleman of the largest experience and highest character for integrity and learning at the Philadelphia Bar, thus strongly confirms the views which have been here expressed on the subject of contingent fees: "And further," says Mr. Price in his concluding advice to students, at the close of his Essay on Limitation and Lien, "permit me to advise and earnestly to admonish you, for the preservation of professional honor and integrity, to avoid the temptation of bargaining for fees or shares of any estate or other claim, contingent upon a successful recovery. The practice directly leads to a disturbance of the peace of society and to an infidelity to the professional obligation promised to the court, in which is implied an absence of desire or effort of one in the ministry of the Temple of Justice, to obtain a success that is not just as well as lawful. It is true, as a just equivalent for many cases honorably advocated and incompetently paid by the poor, a compensation may and will be received, the more liberal because of the ability produced by success; but let it be the result of no bargain, exacted as a price before the service is rendered, but rather the grateful return for benefits already conferred. If rigid in your terms, in protection of the right of the profession to a just and honorable compensation, let it rather be in the amount of the required retainer, when it will have its proper influence in the discouragement of litigation." A lawyer should avoid, as far as possible, all transactions of business with his clients, not only in regard to matters in suit in his hands, but in relation to other matters. He should avoid standing toward them, either in the relation of borrower or lender. A young practitioner should especially avoid borrowing of any one. Let him retrench, seek the humblest employment of drudgery rather than do it; but, if borrow he must, let it be of any one else than a client. All transactions of business between attorney and client are looked upon with eyes of suspicion and disfavor, in courts of justice. It is a settled doctrine of equity, in England, that an attorney cannot, while the business is unfinished in which he had been employed, receive any gift from his client, or bind his client in any mode to make him greater compensation for his services than he would have a right to demand if no contract should be made during the relation. If an attorney accept a gift from one thus connected with him, it may be recovered in a court of chancery, by the donor or his creditors, should it be necessary for them to assert a right to it to satisfy their demands. When the relation of solicitor and client exists, and a security is taken by the solicitor from his client, the presumption is that the transaction is unfair; and the onus of proving its fairness is upon the solicitor.[54] A man ought to be very careful of placing himself in a position to have any of his transactions regarded in that light. If it should ever come to be canvassed in court, the bandying of the phrases, fraud and presumption of fraud, as applied to him, may, and probably will, have an unfavorable effect on his reputation. Most emphatically should it be said, let nothing tempt him, not even the knowledge and consent of the client, to keep the money, which may have come to his hands professionally, one single instant longer than is absolutely necessary. The consequences of any difficulty arising upon this head, will be fatal to his professional character and prospects. The official oath, to which reference has already more than once been made, obliges the attorney "to use no falsehood." It seems scarcely necessary to enforce this topic. Truth in all its simplicity--truth to the court, client, and adversary--should be indeed the polar star of the lawyer. The influence of only slight deviations from truth, upon professional character, is very observable. A man may as well be detected in a great as a little lie. A single discovery, among professional brethren, of a failure of truthfulness, makes a man the object of distrust, subjects him to constant mortification, and soon this want of confidence extends itself beyond the Bar to those who employ the Bar. That lawyer's case is truly pitiable, upon the escutcheon of whose honesty or truth, rests the slightest tarnish. Let it be remembered and treasured in the heart of every student, that no man can ever be a truly great lawyer, who is not in every sense of the word, a good man. A lawyer, without the most sterling integrity, may shine for a while with meteoric splendor; but his light will soon go out in blackness of darkness. It is not in every man's power to rise to eminence by distinguished abilities. It is in every man's power, with few exceptions, to attain respectability, competence, and usefulness. The temptations which beset a young man in the outset of his professional life, especially if he is in absolute dependence upon business for his subsistence, are very great. The strictest principles of integrity and honor, are his only safety. Let him begin by swerving from truth or fairness, in small particulars, he will find his character gone--whispered away, before he knows it. Such an one may not indeed be irrecoverably lost; but it will be years before he will be able to regain a firm foothold. There is no profession, in which moral character is so soon fixed, as in that of the law; there is none in which it is subjected to severer scrutiny by the public. It is well, that it is so. The things we hold dearest on earth,--our fortunes, reputations, domestic peace, the future of those dearest to us, nay, our liberty and life itself, we confide to the integrity of our legal counsellors and advocates. Their character must be not only without a stain, but without suspicion. From the very commencement of a lawyer's career, let him cultivate, above all things, truth, simplicity, and candor: they are the cardinal virtues of a lawyer. Let him always seek to have a clear understanding of his object: be sure it is honest and right, and then march directly to it. The covert, indirect, and insidious way of doing anything, is always the wrong way. It gradually hardens the moral faculties, renders obtuse the perception of right and wrong in human actions, weighs everything in the balances of worldly policy, and ends most generally, in the practical adoption of the vile maxim, "that the end sanctifies the means." If it be true, as he has said, who, more than any mere man, before or since his day, understood the depths of human character, that one even may, "By telling of it, Make such a sinner of his memory; To credit his own lie:"-- we should be careful never to speak or act, without regard to the _morale_ of our words or actions. A habit may and will grow to be a second nature. "That monster, custom, who all sense doth eat, Of habit's devil, is angel yet in this: That to the use of actions fair and good He likewise gives a frock or livery That aptly is put on." There is no class of men among whom moral delinquency is more marked and disgraceful than among lawyers. Among merchants, so many honest men become involved through misfortune, that the rogue may hope to take shelter in the crowd, and be screened from observation. Not so the lawyer. If he continues to seek business, he must find his employment in lower and still lower grades; and will soon come to verify and illustrate the remark of Lord Bolingbroke, that "the profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement, the most sordid and pernicious." While such are the depths to which a lawyer may sink, look, on the other hand, at the noble eminence of honor, usefulness, and virtue, to which he may rise. Where is the profession, which, in this world, holds out brighter rewards? Genius, indeed, will leave its mark in whatever sphere it may move. But learning, industry, and integrity, stand nowhere on safer or higher ground, than in the walks of the law. In all free countries, it is the avenue not only to wealth, but to political influence and distinction. In England, a large proportion of the house of peers, owe their seats and dignities, as well as their possessions, either to their own professional success, or to that of some one of their ancestors.[55] In this country, all our Presidents but three, have been educated to the Bar. Of the men who have distinguished themselves in the cabinet, in the halls of legislation, and in foreign diplomacy, how large is the proportion of lawyers! How powerful has always been the profession in guiding the popular mind, in forming that greatest of all counterchecks to bad laws and bad administration,--public opinion! It is the school of eloquence--that, which more than all else besides, has swayed, still sways, and always will sway, the destinies of free peoples. Let a man, to the possession of this noble faculty, add the high character of purity and justice, integrity and honor, and where are to be found the limits of his moral power over his fellow-citizens?[56] It is well to read carefully and frequently, the biographies of eminent lawyers. It is good to rise from the perusal of the studies and labors, the trials and conflicts, the difficulties and triumphs, of such men, in the actual battle of life, with the secret feeling of dissatisfaction with ourselves. Such a sadness in the bosom of a young student, is like the tears of Thucydides, when he heard Herodotus read his history at the Olympic Games, and receive the plaudits of assembled Greece. It is the natural prelude to severer self-denial, to more assiduous study, to more self-sustaining confidence. Some one has recommended that Middleton's Life of Cicero should be perused, at frequent intervals, as the vivid picture of a truly great mind, in the midst of the most stirring scenes, ever intent upon its own cultivation and advancement, as its only true glory; and that in effect sketched by his own master hand.[57] The autobiography of Edward Gibbon will rouse an ambitious student like the sound of a trumpet. But of English biographies, there is no one, it occurs to me, better adapted to the purpose mentioned, than the Life of Sir William Jones, by Lord Teignmouth. It exhibits the wonders, which unremitted study, upheld by the pure and noble ambition of doing good, can accomplish in the space of a short life. He was a man of the most varied knowledge. An extensive and indeed extraordinary acquaintance with ancient and modern languages, was perhaps his chief accomplishment. Although he engaged very late in life in the study of the law, such was his industry and success, that he soon occupied the highest judicial station, in British India; and the profession are indebted to his pen, for one of the most beautiful of the elementary treatises, which adorn the lawyer's library. "In his early days," says his biographer, "he seems to have entered upon his career of study, with this maxim strongly impressed upon his mind, that whatever had been attained, was attainable by him; and it has been remarked, that he never neglected nor overlooked any opportunity of improving his intellectual faculties, or of acquiring esteemed accomplishments." Notwithstanding his numerous occupations at the Bar at home, the onerous duties of his station in India, and his premature death, before he had attained his forty-eighth year, he has left behind many learned works, which illustrate Oriental languages and history, and attest the extent of his labors and acquisitions. Indeed, it might be regarded as impossible, were we not informed of the regular allotment which he made of his time to particular occupations, and his scrupulous adherence to the distribution he had thus made. The moral character of this eminent man, was no less exemplary. It is the testimony of one of his contemporaries: "He had more virtues and less faults, than I ever yet knew in any human being; and the goodness of his head, admirable as it was, was exceeded by that of his heart." His own measure of true greatness, humanly speaking, he has left behind him, in very emphatic words: "If I am asked, who is the greatest man? I answer, the best. And if I am required to say, who is the best? I reply, he that has deserved most of his fellow-creatures."[58] This department of English literature has been recently much enriched by the labors of the present Lord High Chancellor of England, Lord Campbell. In America we have a few well written and instructive legal biographies, among which ought especially to be named, Mr. Wheaton's Life of William Pinkney, and Professor Parsons' interesting Memoir of his distinguished father, Chief Justice Parsons. Mr. Binney, at the close of his honored and honorable life, is paying the debt, which every man owes to his profession, in animated spirit-stirring sketches of his great and good contemporaries. How forcibly does this distinguished jurist illustrate the remark of Cicero in his Treatise on Old Age: "Sed videtis, ut senectus non modo languida atque iners non sit, verum etiam sit operosa, et semper agens aliquid et moliens; tale scilicet, quod cujusque studium in superiore vita fuit." What a noble example might be held up, in the life and character of Chief Justice Marshall! His biography, while it will be the record of active patriotism and humanity, will exhibit a course of arduous self-training, for the great conflicts of opinion, in which it was his lot afterwards to appear, with so much lustre. He had not the usual advantages of a collegiate education. The war of the Revolution, in which his ardent love of country, and of the principles of rational liberty, led him to enlist, and where he distinguished himself in the field, materially interfered with, and retarded his earlier professional studies; yet, the lofty eminence to which he attained in the opinion of his compatriots, even of those who could not concur in some of his views of the Constitution, the enduring monuments of his greatness in the decisions of the Supreme Court of the United States, bespeak an intellect of the very first order, mental power naturally vigorous, but brought, by proper exercise, to a degree of strength that made it tower above the general level of educated men. His opinions do not abound in displays of learning. His simplicity, a character so conspicuous in all his writings and actions--that first and highest characteristic of true greatness--led him to say and do just what was necessary and proper to the purpose in hand. Its reflected consequences on his own fame as a scholar, a statesman, or a jurist, seem never once to have occurred to him. As a judge, the Old World may be fairly challenged to produce his superior. His style is a model--simple and masculine. His reasoning--direct, cogent, demonstrative, advancing with a giant's pace and power, and yet withal so easy evidently to him, as to show clearly, a mind in the constant habit of such strong efforts. Though he filled for so many years the highest judicial position in this country, how much was his walk like the quiet and unobtrusive step of a private citizen, conscious of heavy responsibilities, and anxious to fulfil them; but unaware that the eyes of a nation--of many nations--were upon him! There was around him none of the glare, which dazzles; but he was clothed in that pure mellow light of declining evening, upon which we love to look. Where is the trust to society more sacred, where are duties more important, or consequences more extended, for individual or social weal or woe, than those which attach to the office he held? How apt, and aptly said, is that prayer of Wolsey, when he is informed of the promotion of Sir Thomas More to the place of Lord Chancellor: "May he ... do justice, For truth's sake and his conscience; that his bones, When he has run his course, and sleeps in blessings, May have a tomb of orphans' tears wept on him." It is surely a just subject of national, as well as professional pride, that an American lawyer can thus, pointing to the example of such a man as JOHN MARSHALL, hold up his character, his reputation, his usefulness, his greatness, as incentives to high and honorable ambition; and especially, his life of unblemished virtue, and single-hearted purity,--after all, his highest praise, for, as old Shirley says, "When our souls shall leave this dwelling, The glory of one fair and virtuous action Is above all the scutcheons on our tomb." Is it possible that a being so fearfully and wonderfully made as man, and animated by a spirit still more fearful and incomprehensible, was created for the brief term of a few revolutions of the planet he lives on? Shall his own physical and intellectual productions so long survive him? The massive piles of Egypt have endured for thousands of years: fluted column and sculptured architrave have stood for generations, monuments of his labor and skill. A poem of Homer, an oration of Demosthenes, an ode of Horace, a letter of Cicero, carry down to the remotest posterity the memorial of their names. Men found empires, establish constitutions, promulgate codes of laws; there have been Solons, Alexanders, Justinians, and Napoleons. There have been those justly called Fathers of their country, and benefactors of their race. Have they, too, sunk to become clods of the valley? The mind, which can look so far before and after--can subdue to its mastery the savages of the forests, and the fiercer elements of Nature--can stamp the creation of its genius upon the living canvas, or the almost breathing, speaking marble--can marshal the invisible vibrations of air into soul-stirring or soul-subduing music--can pour forth an eloquence of words, with magic power to lash the passions of many hearts into a raging whirlwind, or command them with a "peace, be still"--can make a book, a little book, which shall outlive pyramids and temples, cities and empires--can perceive and love beauty, in all its forms, and above all, moral beauty, and God, the infinite perfection of moral beauty,--no, this mind can never die. Its moral progress must go on in an unending existence, of which its life of fourscore years on earth is scarce the childhood. Let us beware then of raising these objects of ambition, wealth, learning, honor, and influence, worthy though they be, into an undue importance; nor in the too ardent pursuit of what are only means, lose sight of the great end of our being. APPENDIX. No. I. COURVOISIER'S CASE[59] On Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, and aged, being in his seventy-third year, was murdered in his bed. He was a widower, living at No. 14 Norfolk Street, Park Lane, London, a small house, occupied by only himself and three servants,--Courvoisier, a young Swiss valet, and two women, a cook and house-maid. The evidence was of a character to show very clearly that the crime had been committed by some one in the house; but, Courvoisier's behavior throughout had been that of an innocent man. Two examinations of his trunk, by the officers of the police, showed nothing suspicious; rewards having been offered by the government and family of the deceased; for the detection of the criminal, a third examination was made of Courvoisier's box, which resulted in the discovery of a pair of white cotton gloves, two pocket handkerchiefs, and a shirt-front, stained with blood. The prisoner's counsel went to the trial with a full persuasion of his innocence, and conducted the cross-examination closely and zealously, especially of Sarah Mancer, one of the female domestics, with a view of showing that there was as much probability that the witness or the other domestic was the criminal as the prisoner; and that the police, incited by the hopes of the large rewards offered, had conspired to fasten the suspicion unjustly on him. At the close of the first day's proceedings, the prosecutors were placed unexpectedly in possession of a new and important item of evidence: the discovery of the plate of the deceased, which was missed, and that it had been left by the prisoner, at the place where it was found, about a week, perhaps only a very few days, before the committing of the murder. The parcel contained silver spoons, forks, a pair of gold auricles, all unquestionably the property of the unfortunate nobleman; and the only question remaining was, whether Courvoisier was the person who had so left it. If he were, it would, of course, grievously for him, increase the _probabilities_ that it must have been he who subsequently committed the murder, and with the object of plunder. On the ensuing morning, the person who had made this discovery (Mrs. Piolaine, the wife of a Frenchman, who kept a place of entertainment, called L'Hotel de Dieppe, in Leicester Place, Leicester Square), was shown a number of prisoners in the prison-yard, one of whom was Courvoisier, whom she instantly recognized as the person who had left the plate with her, and also had formerly lived in her employ. Courvoisier also suddenly recognized her, and with dismay. The immediate effect of his panic was the confession of his guilt to his counsel at the bar of the court, a few minutes afterwards, coupled with his desire, nevertheless, to be defended to the utmost. His probable object was simply to prepare his counsel against the forthcoming evidence. The prisoner was convicted, and afterwards confessed his crime. Mr. Phillips's conduct of the defence was criticized at the time, in the columns of the Examiner, but he suffered it to pass in silence. In 1849, that periodical renewed the accusation originally made, upon which the following correspondence appeared in the London Times of Nov. 20th, 1849. TO THE EDITOR OF THE "TIMES." SIR,--I shall esteem it a great favor if you will allow the accompanying documents to appear in the "Times." Its universal circulation affords me an opportunity of annihilating a calumny recently revived, which has for nine years harassed my friends far more than myself. I am, &c., CHARLES PHILLIPS. 39 Gordon Square. INNER TEMPLE, Nov. 14, 1849. MY DEAR PHILLIPS,--It was with pain that I heard yesterday of an accusation having been revived against you in the "Examiner" newspaper, respecting alleged dishonorable and most unconscientious conduct on your part, when defending Courvoisier against the charge of having murdered Lord William Russell. Considering that you fill a responsible judicial office, and have to leave behind you a name unsullied by any blot or stain, I think you ought to lose no time in offering, as I believe you can truly do, a public and peremptory contradiction to the allegations in question. The mere circumstances of your having been twice promoted to judicial office by two lord chancellors, Lord Lyndhurst and Lord Brougham, since the circulation of the reports to which I am alluding, and after those reports had been called to the attention of at least one of those noble and learned lords, is sufficient evidence of the groundlessness of such reports. Some time ago I was dining with Lord Denman, when I mentioned to him the report in question. His lordship immediately stated that he had inquired into the matter, and found the charge to be utterly unfounded; that he had spoken on the subject to Mr. Baron Parke, who had sat on the Bench beside Chief Justice Tindal, who tried Courvoisier, and that Baron Parke told him he had, for reasons of his own, most carefully watched every word that you uttered, and assured Lord Denman that your address was perfectly unexceptionable, and that you made no such statements as were subsequently attributed to you. Lord Denman told me that I was at liberty to mention this fact to any one; and expressed in noble and generous terms his concern at the existence of such serious and unfounded imputations upon your character and honor. Both Lord Denman and Baron Parke are men of as nice a sense of honor and as high a degree of consciousness as it is possible to conceive; and I think the testimony of two such distinguished judges ought to be publicly known, to extinguish every kind of suspicion on the subject. I write this letter to you spontaneously, and, hoping that you will forgive the earnestness with which I entreat you to act upon my suggestion, believe me ever yours sincerely, SAMUEL WARREN. MR. COMMISSIONER PHILLIPS. 39 GORDON SQUARE, Nov. 20. MY DEAR WARREN,--Your truly kind letter induces me to break the contemptuous silence, with which for nine years I have treated the calumnies, to which you allude. I am the more induced to this by the representations of some valued friends, that many honorable minds begin to believe the slander because of its repetition without receiving a contradiction. It is with disgust and disdain, however, that even thus solicited I stoop to notice inventions too abominable, I had hoped, for any honest man to have believed. The conduct of Lord Denman is in every respect characteristic of his noble nature. Too just to condemn without proof, he investigates the facts, and defends the innocent. His deliberate opinion is valuable indeed, because proceeding from one who is invaluable himself. My judicial appointments by the noblemen you mention would have entailed on them a fearful responsibility, had there been any truth in the accusations of which they must have been cognizant. I had no interest whatever with either of these chancellors, save that derived from their knowledge of my character, and their observation of my conduct. It is now five-and-twenty years ago since Lord Lyndhurst, when I had no friend here, voluntarily tendered me his favor and his influence, and his kindness to me remains to this day unabated. Of Lord Brougham, my ever warm and devoted friend, I forbear to speak, because words cannot express my affection or my gratitude. His friendship has soothed some affliction and enhanced every pleasure, and while memory lasts will remain the proudest of its recollections and the most precious of its treasures. This is no vain-glorious vaunting. The unabated kindness of three of the greatest men, who ever adorned the Bench, ought, in itself, to be a sufficient answer to my traducers. Such men as these would scarcely have given their countenance to one, who, if what were said of him were true, deserved their condemnation. I am not disposed, however, though I might be well warranted in doing so, to shelter myself under the authority of names, no matter how illustrious. I give to each and all of these charges a solemn and indignant contradiction, and I will now proceed to their refutation. The charges are threefold, and I shall discuss them _seriatim_. First, I am accused of having retained Courvoisier's brief after having heard his confession. It is right that I should relate the manner of that confession, as it has been somewhat misapprehended. Many suppose it was made to me alone, and made in the prison. I never was in the prison since I was called to the Bar, and but once before, being invited to see it by the then sheriffs. So strict is this rule, that the late Mr. Fauntleroy solicited a consultation there in vain with his other counsel and myself. It was on the second morning of the trial, just before the judges entered, that Courvoisier, standing publicly in front of the dock, solicited an interview with his counsel. My excellent friend and colleague, Mr. Clarkson, and myself immediately approached him. I beg of you to mark the presence of Mr. Clarkson, as it will become very material presently. Up to this morning I believed most firmly in his innocence, and so did many others as well as myself. "I have sent for you, gentlemen," said he, "to tell you I committed the murder!" When I could speak, which was not immediately, I said, "Of course then you are going to plead guilty?"--"No, sir," was the reply, "I expect you to defend me to the utmost." We returned to our seats. My position at this moment was, I believe, without parallel in the annals of the profession. I at once came to the resolution of abandoning the case, and so I told my colleague. He strongly and urgently remonstrated against it, but in vain. At last he suggested our obtaining the opinion of the learned judge, who was not trying the cause, upon what he considered to be the professional etiquette under circumstances so embarrassing. In this I very willingly acquiesced. We obtained an interview, and Mr. Baron Parke requested to know distinctly whether the prisoner insisted on my defending him, and, on hearing that he did, said, I was bound to do so, and to use all fair arguments arising on the evidence. I therefore retained the brief, and I contend for it, that every argument I used was a fair commentary on the evidence, though undoubtedly as strong as I could make them. I believe there is no difference of opinion now in the profession that this course was right. It was not until after eight hours' public exertion before the jury that the prisoner confessed; and to have abandoned him then would have been virtually surrendering him to death. This is my answer to the first charge. I am accused, secondly, of having "appealed to Heaven as to my belief in Courvoisier's innocence," after he had made me acquainted with his guilt. A grievous accusation! But it is false as it is foul, and carries its own refutation on its face. It is with difficulty I restrain the expression of my indignation; but respect for my station forbids me to characterize this slander as it deserves. It will not bear one moment's analysis. It is an utter impossibility under the circumstances. What! appeal to Heaven for its testimony to a lie, and not expect to be answered by its lightning? What! make such an appeal, conscious that an honorable colleague sat beside me, whose valued friendship I must have forever forfeited? But above all and beyond all, and too monstrous for belief, would I have dared to utter that falsehood in the very presence of the judge to whom, but the day before, I had confided the reality! There, upon the Bench above me, sat that time-honored man--that upright magistrate, pure as his ermine, "narrowly watching" every word I said. Had I dared to make an appeal so horrible and so impious--had I dared so to outrage his nature and my own conscience, he would have started from his seat and withered me with a glance. No, Warren, I never made such an appeal; it is a malignant untruth, and sure I am, had the person who coined it but known what had previously occurred, he never would have uttered from his libel mint so very clumsy and self-proclaiming a counterfeit. So far for the verisimilitude of this-charge. But I will not rest either on improbability, or argument, or even denial. I have a better and a conclusive answer. The trial terminated on Saturday evening. On Sunday I was shown in a newspaper the passage imputed to me. I took the paper to court on Monday, and, in the aldermen's room, before all assembled, after reading the paragraph aloud, I thus addressed the judges:--"I take the very first opportunity which offers, my lords, of most respectfully inquiring of you whether I ever used any such expression?"--"You certainly did not, Phillips," was the reply of the late lamented Lord Chief Justice, "and I will be your vouchee whenever you choose to call me,"--"And I," said Mr. Baron Parke, happily still spared to us, "had a reason, which the Lord Chief Justice did not know, for watching you narrowly, and he will remember my saying to him, when you sat down, 'Brother Tindal, did you observe how carefully Phillips abstained from giving any personal opinion in the case?' To this the learned Chief Justice instantly assented." This is my answer to the second charge. Thirdly, and lastly, I am accused of having endeavored to cast upon the female servants the guilt, which I knew was attributable to Courvoisier. You will observe, of course, that the gravamen of this consists in my having done so after the confession. The answer to this is obvious. Courvoisier did not confess till Friday: the cross-examination took place the day before, and so far, therefore, the accusation is disposed of. But it may be said I did so in my address to the jury. Before refuting this let me observe upon the disheartening circumstances under which that address was delivered. At the close of the, to me, most wretched day on which the confession was made, the prisoner sent me this astounding message by his solicitor: "Tell Mr. Phillips, my counsel, that I consider he has my life in his hands." My answer was, that as he must be present himself, he would have an opportunity of seeing whether I deserted him or not. I was to speak on the next morning. But what a night preceded it! Fevered and horror-stricken, I could find no repose. If I slumbered for a moment, the murderer's form arose before me, scaring sleep away, now muttering his awful crime, and now shrieking to me to save his life! I did try to save it. I did everything to save it, except that which is imputed to me, but that I did not, and I will prove it. I have since pondered much upon this subject, and I am satisfied that my original impression was erroneous. I had no right to throw up my brief, and turn traitor to the wretch, wretch though he was, who had confided in me. The counsel for a prisoner has no option. The moment he accepts his brief, every faculty he possesses becomes his client's property. It is an implied contract between him and the man who trusts him. Out of the profession this may be a moot point, but it was asserted and acted on by two illustrious advocates of our own day, even to the confronting of a king, and, to the regal honor be it spoken, these dauntless men were afterwards promoted to the highest dignities. You will ask me here whether I contend on this principle for the right of doing that of which I am accused, namely, casting the guilt upon the innocent? I do no such thing; and I deny the imputation altogether. You will still bear in mind what I have said before, that I scarcely could have dared to do so under the eye of Baron Parke and in the presence of Mr. Clarkson. To act so, I must have been insane. But to set this matter at rest, I have referred to my address as reported in the "Times"--a journal the fidelity of whose reports was never questioned. You will be amazed to hear that I not only did not do that of which I am accused; but that I did the very reverse. Fearing that, nervous and unstrung as I was, I might do any injustice in the course of a lengthened speech, by even an ambiguous expression, I find these words reported in the "Times,"--"Mr. Phillips said the prosecutors were bound to prove the guilt of the prisoner, not by inference, by reasoning, by such subtile and refined ingenuity as had been used, but by downright, clear, open, palpable demonstration. How did they seek to do this? What said Mr. Adolphus and his witness, Sarah Mancer? And here he would beg the jury not to suppose for a moment, in the course of the narrative with which he must trouble them, that he meant to cast the crime upon either of the female servants. It was not at all necessary to his case to do so. It was neither his interest, his duty, nor his policy, to do so. God forbid that any breath of his should send tainted into the world persons depending for their subsistence on their character." Surely this ought to be sufficient. I cannot allude, however, to this giant of the press, whose might can make or unmake a reputation, without gratefully acknowledging that it never lent its great circulation to these libels. It had too much justice. The "Morning Chronicle," the "Morning Herald," and the "Morning Post," the only journals to which I have access, fully corroborated the "Times," if, indeed, such a journal needed corroboration. The "Chronicle" runs thus:--"In the first place, says my friend Mr. Adolphus, and says his witness Sarah Mancer--and here I beg to do an act of justice, and to assure you that I do not for a moment mean to suggest in the whole course of my narrative that this crime may have been committed by the female servants of the deceased nobleman." "The Morning Post" runs thus: "Mr. Adolphus called a witness, Sarah Mancer. But let me do myself justice, and others justice, by now stating, that in the whole course of my narrative with which I must trouble you, I beg you would not suppose that I am in the least degree seeking to cast the crime upon any of the witnesses. God forbid that any breath of mine should send persons depending on the public for subsistence into the world with a tainted character." I find the "Morning Herald" reporting me as follows: "Mr. Adolphus called a witness named Sarah Mancer. But let me do myself justice and others justice by now stating that in the whole course of the narrative with which I must trouble you, I must beg that you will not suppose that I am in the least degree seeking to cast blame upon any of the witnesses." Can any disclaimer be more complete? And yet, in the face of this, for nine successive years has this most unscrupulous of slanderers reiterated his charge. Not quite three weeks ago he recurs to it in these terms: "How much worse was the attempt of Mr. Phillips to throw the suspicion of the murder of Lord William Russell on the innocent female servants, in order to procure the acquittal of his client Courvoisier, of whose guilt he was cognizant?" I have read with care the whole report in the "Times" of that three hours' speech, and I do not find a passage to give this charge countenance. But surely, surely, in the agitated state in which I was, had even an ambiguous expression dropped from me, the above broad disclaimer would have been its efficient antidote. Such is my answer to the last charge; and, come what will, it shall be my final answer. No envenomed reiteration, no popular delusion, no importunity of friendship, shall ever draw from me another syllable. I shall remain in future, as I have been heretofore, _auditor tantum_. You know well how strenuously and how repeatedly you pressed me to my vindication, especially after Lord Denman's important conversation with you, and you know the stern disdain with which I dissented. The _mens conscia recti_, a thorough contempt for my traducer, the belief that truth would in the end prevail, and a self-humiliation at stooping to a defence, amply sustained me amid the almost national outcry which calumny had created. Relying doubtless upon this, month after month, for nine successive years, my accuser has iterated and reiterated his libels in terms so gross, so vulgar, and so disgraceful, that my most valued friends thought it my duty to them publicly to refute them. To that consideration, and to that alone, I have yielded; in deference to theirs, relinquishing my own opinions. If they suppose, however, that slander, because answered, will be silenced, they will find themselves mistaken. Destroy the web of sophistry--in vain-- The creature's at his dirty work again. No, no, my dear friend, invention is a libeller's exhaustless capital, and refutation but supplies the food on which he lives. He may, however, pursue his vocation undisturbed by me. His libels and my answer are now before the world, and I leave them to the judgment of all honorable men. C. PHILLIPS. No. II. COURSE OF LEGAL STUDY[60] _Non multa sed multum_, is the cardinal maxim by which the student of law should be governed in his readings; at the commencement of his studies--in the office of his legal preceptor, REPETITION--REPETITION--REPETITION. Blackstone and Kent, should be read--and read again and again. These elementary works, with some others of an immediately practical cast--Tidd's Practice, Stephen's Pleading, Greenleaf's Evidence, Leigh's Nisi Prius, Mitford's Equity Pleading--well conned, make up the best part of office reading. Of course the Acts of Assembly should be gone over and over again. I do not say that this is all. The plan of reading, which I am about to recommend, may be begun in the office. Much will depend upon, what may be termed, the mental temperament of the student himself, which no one but the immediate preceptor can observe; and he will be governed accordingly in the selection of works to be placed in his hands. No lawyer does his duty, who does not frequently examine his student, not merely as a necessary means of exciting him to attention, and application; but in order to acquire such an acquaintance with the character of his pupil's mind--its quickness or slowness--its concentrativeness or discursiveness--as to be able to form a judgment whether he requires the curb or the spur. It is an inestimable advantage to a young man to have a judicious and experienced friend watching anxiously his progress, and able to direct him, when, if left to himself, he must wander in darkness and danger. "There be two things," says Lord Coke, "to be avoided by him as enemies to learning, _præpostera lectio_ and _præpropera praxis_." Co. Litt. 70 b. I prefer presenting a certain order of subjects to be pursued; observing, however, that it may be somewhat irksome to pursue any one branch for too long a period unvaried. When that is found to be the case, the last five heads may be adopted as collateral studies, and pursued simultaneously with the first three. These heads or branches are--1. Real Estate and Equity. 2. Practice, Pleading, and Evidence. 3. Crime and Forfeitures. 4. Natural and International law. 5. Constitutional Law. 6. Civil Law. 7. Persons and Personal Property. 8. The Law of Executors and Administrators. I. REAL ESTATE AND EQUITY. As introductory to this head, Lord Hale's History of the Common Law may be perused with advantage. It was perhaps a mere sketch, intended to be afterwards filled up and completed. Still, however, it is a work of authority, as indeed is everything which proceeded from the pen of its distinguished author. He is correct and accurate to a remarkable degree. Reeves' History of the English Law is a full and comprehensive history of the English Law, accurate and judicious as well as full. Lord Mansfield is said to have advised its author in regard to its plan and execution. In this work the student is presented with all that is necessary that he should know of the earliest law-books, Bracton, Glanville, and Fleta, carefully collected and presented. The history of the law is separately traced under the reign of each king, and it may be of advantage to read at the same time some good history or histories of England parallel with the work. "Reeves' History of the English Law," says Chancellor Kent, "contains the best account that we have of the progress of the law, from the time of the Saxons to the reign of Elizabeth. It covers the whole ground of the law included in the old abridgments, and it is a work deserving of the highest commendation. I am at a loss which most to admire, the full and accurate learning, which it contains, or the neat, perspicuous, and sometimes elegant style, in which that learning is conveyed." 1 Comm. 508. Dalrymple's Essay towards a general History of Feudal Property in Great Britain, is a brief but learned and philosophical treatise, which may be followed by Sullivan's Lectures on Feudal Law, a work copious in detail and exhibiting ably, among other topics, the influence of the feudal system upon the Modern Law of Tenures. Sir Martin Wright's Introduction to the Law of Tenures is one of the most accurate and profound of the essays on this topic; and is worthy of the most attentive study. Craig de Feudis was thought by Lord Mansfield much preferable to any judicial work which England had then produced. With these legal treatises on the feudal system may be read with great advantage, simultaneously, Robertson's History of Charles V, and Hallam's History of the Middle Ages. Sir Henry Finch's Law, or Nomotechnia, as he entitled it, may be taken up in this connection. It is said that until the publication of Blackstone's Commentaries, it was regarded as the best elementary book to be placed in the hands of law students; and we have the authority of Sir William Blackstone for saying that his method was greatly superior to that in all the treatises that were then extant: Blackstone's Analysis, Preface, 6. "His text," says Chancellor Kent, "was weighty, concise, and nervous, and his illustrations apposite, clear, and authentic;" though he adds, "But the abolition of the feudal tenures and the disuse of real actions, have rendered half of his work obsolete," 1 Comm. 509; an objection, in the view we take of legal education, which should rather recommend the work than otherwise. At the same time with Finch take Doctor and Student by St. Germain--a little book which is replete with sound law, and has always been cited with approbation as an authority. The Prefaces to the several volumes of Lord Coke's Reports may be read now with great advantage. They contain much interesting information, and strongly impregnated as they are with Lord Coke's abundant learning and love of the law as a science and profession, they form an admirable introduction to The First Institute, or Lord Coke's Commentary upon Littleton's Tenures. It would be advisable, I think, to read first in order the sections of Littleton's Tenures, the original treatise upon which The Institute was a commentary. After that, no time or pains should be spared to master completely The First Institute. If the course now prescribed has been followed, the student will not require to be reminded, that even those parts, which seem to relate to obsolete heads of the law, ought to be read and understood. "There is not," says Mr. Butler, "in the whole of this golden book, a single line which the student will not in his professional career, find on more than one occasion eminently useful." There may be some extravagance in this assertion; but we may nevertheless agree with Mr. Ritso that "there is no knowledge of this kind, which may not, sooner or later, be in fresh demand; there is no length of time or change of circumstances, that can entirely defeat its operation or destroy its intrinsic authority. Like the old specie withdrawn from circulation upon the introduction of a new coinage, it has always its inherent value; the ore is still sterling and may be moulded into modern currency." The opinions of American lawyers confirm this conclusion. It is well known that C. J. Parsons was distinguished for his familiarity with the pages of The Institute. It was Mr. Pinkney's favorite law book; and "his arguments at the Bar," says his biographer, Mr. Wheaton, "abounded with perpetual recurrences to the principles and analysis drawn from this rich mine of common law learning." Mr. Hoffman, in his Course of Legal Study, has also borne his testimony to its importance to the American practitioner. Chancellor Kent seems, as I have intimated in the note, to lean rather against Coke upon Littleton, as an Institute of Legal Education, although he acknowledges its value and authority as a book of reference. It appears to me that after Coke, Preston's Elementary Treatise on Estates may be read with advantage. He is perhaps unnecessarily diffuse and tautological; but he enters largely into the reasons of the abstruse doctrines of which he treats, and his work is calculated to lead the student to inquire more earnestly into the philosophy of the science. Fearne's Essay on the Learning of Contingent Remainders, should then be well studied. If no other book be read over a second time, it must not be omitted as to this. This volume is occupied in the discussion of points of great difficulty and abstruseness; yet the style is remarkable for clearness and perspicuity, and the reasoning is logical and irresistible. A taste or otherwise, for this book, will test the student's real progress. After Fearne, take up Sheppard's Touchstone of Common Assurances--a work generally supposed to have been written by Mr. Justice Doddridge, and not by William Sheppard, whose name it bears. It is a most valuable book, one of the most esteemed and authoritative of the old treatises. There is an edition by Mr. Preston, but I do not recommend it. Had he annotated in the common way, his labors and references would no doubt have increased the value of the book; but he has taken liberties with the text,--subdividing it, occasionally changing the phraseology, and inserting matter of his own: a course of proceeding in regard to any work, except a digest or dictionary, to which I cannot be reconciled. The Touchstone may be followed by Preston on Abstracts of Title, and Preston's Treatise on Conveyancing. I think that at this period, as a necessary introduction to the succeeding studies, some works on Equity Jurisprudence should be taken in hand; as the Treatise on Equity of which Henry Ballow is the reputed author. It is the text of Fonblanque's Equity. It had better be read by itself. Disquisitional notes of great length only confuse and confound the student; and Mr. Marvin has well said that Fonblanque's Equity "finally expired under the weight of its own notes." To this add Jeremy's Treatise on Equity, and Story's Commentaries on Equity Jurisprudence. The student may then read with advantage, Powell on Mortgages, with Coventry's Notes. It is to be lamented that Mr. Coventry did not prepare an original work, instead of overwhelming the text of Powell with his learned and valuable labors. Chancellor Kent has remarked, that between the English and American editors it is "somewhat difficult for the reader to know, without considerable difficulty, upon what ground he stands." Like the treatise on Equity, it has been nearly choked to death in the embraces of its annotators. Bacon's Reading upon the Statute of Uses, is a very profound treatise on that subject, though evidently left by its great author in an unfinished state. Sanders on Uses and Trusts, is a very comprehensive and learned work, and the subject, which may be styled the Metaphysics of the Law, requires close attention. Hill on Trustees, is a practical treatise, which may here be read with advantage, as also Lewis on Perpetuities. Sugden on Powers, has been said to be second to no elementary law book. It is a masterly elucidation of the subtle doctrines of the law on the subject of Powers, and is held in the highest estimation. It will perhaps be better appreciated and understood, if with it, or after it, is taken up Chance's Treatise on Powers,--a work more diffuse than Mr. Sugden's, and which examines, controverts, and discusses at large many of his positions. Sugden on Vendors and Purchasers may then follow. The titles on Leases and Terms for Years, and Rent, in Bacon's Abridgment, should be studied. These were the works of Chief Baron Gilbert. After this, Woodfall on Landlord and Tenant. Roscoe's Treatise on the Law of Actions relating to Real Property, may be read as a convenient introduction to Cruise on Fines and Recoveries, and Pigott on Common Recoveries. To these, in conclusion of this, by far the most important and fundamental branch of legal studies, may be added, Powell's Essay on the Learning of Devises, and Jarman on Wills. It will be remarked, that I have not set down in order, any Report Books; it is not that I undervalue that kind of study. It appears to me that in his regular reading, the student should constantly resort to and examine the principal cases referred to and commented upon by his authors. In this way, he will read them more intelligently, and they will be better impressed on his memory. Some reports may be read through continuously; such are Plowden, Hobart, Vernon, and I certainly think, Johnson's Chancery Reports should be thus read. Smith's Leading Cases is an excellent reading-book of this kind. The student of Pennsylvania Law will do well not to omit Binney's Reports. But I assign no particular place to this kind of study, because I think it may be taken up and laid aside at intervals, according to the bent of the student's inclination. When, in any particular part of his course, he finds his regular reading drags heavily--he has become fagged and tired of a particular subject--let him turn aside for a week or two, to some approved and standard Report Book; it will be useful reading, and he will be able to return refreshed to his proper course. It would extend this Appendix too much, if I were to go over the remaining parts of the prescribed plan, with the same particularity as I have this first and most important branch. It will be sufficient to indicate merely the books, and the order in which they may be most profitably read, under each division. II. PRACTICE, PLEADING, AND EVIDENCE. The Introduction to Crompton's Practice gives a full account of the jurisdiction of the courts, and the steps by which it was arrived at. This book is sometimes called Sellon's Practice, having been arranged by Mr. Sellon. The fourth part of The Institutes of Lord Coke. Tidd's Practice. Stephen on Pleading. Saunders' Reports, with Notes by Williams. Broom's Parties to Actions. Greenleaf on Evidence. Selwyn's Nisi Prius. Leigh's Nisi Prius. Mitford's Pleading in Equity. Story's Equity Pleading. Barton's Historical Treatise of a Suit in Equity. Newland's Chancery Practice. Gresley on Evidence in Equity. III. CRIMES AND FORFEITURES. Hale's History of the Pleas of the Crown. Foster's Crown Law. Yorke's Considerations on the Law of Forfeiture for High Treason. The third part of The Institutes of Lord Coke. Russell on Crimes and Misdemeanors. Chitty on Criminal Law. IV. NATURAL AND INTERNATIONAL LAW. Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis. Rutherford's Institutes. Vattel's Law of Nations. Bynkershoek Questiones Publici Juris. Wicquefort's Ambassador. Bynkershoek de Foro Legatorum. McIntosh's Discourse on the Study of the Law of Nature and Nations. Wheaton's History of International Law. Wheaton's International Law. Robinson's Admiralty Reports. Cases in the Supreme Court of the United States. V. CONSTITUTIONAL LAW. The second part of Lord Coke's Institutes. Hallam's Constitutional History of England. Wynne's Eunomus. De Lolme on the English Constitution, with Stephens' Introduction and Notes. The Federalist. Rawle on the Constitution. Story on the Constitution. All the cases decided in the Supreme Court of the United States, on constitutional questions, to be read methodically, as far as possible. VI. CIVIL LAW. I consider some study of this head as a necessary introduction to a thorough course on the subjects of Persons and Personal Property, and the topic, which is so important in the United States, of the Conflict of Laws. Butler's Horæ Juridicæ. Gibbon's History of the Decline and Fall, chap. 44. Justinian's Institutes. Savigny's Traité de Droit Romain. Savigny's Histoire du Droit Romain au Moyen Age. Taylor's Elements of the Civil Law. Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law. Domat's Civil Law. VII. PERSONS AND PERSONAL PROPERTY. Reeves on the Domestic Relations. Bingham's Law of Infancy and Coverture. Roper on Husband and Wife. Angel and Ames on Corporations. Les [OE]uvres de Pothier. Smith on Contracts. Story on Bailments. Jones on Bailments. Story on Partnership. Byles on Bills. Story on Promissory Notes. Abbott on Shipping. Duer on Insurance. Emerigon Traité des Assurances. Boulay-Paty Cour de Droit Commercial. Story on the Conflict of Laws. VIII. EXECUTORS AND ADMINISTRATORS. Roper on Legacies. Toller on Executors. Williams on Executors. The Law's Disposal, by Lovelass. I believe that the course that I have thus sketched, if steadily and laboriously pursued, will make a very thorough lawyer. There is certainly nothing in the plan beyond the reach of any young man, with ordinary industry and application, in a period of from five to seven years, with a considerable allowance for the interruptions of business and relaxation. One thing is certain,--there is no royal road to Law, any more than there is to Geometry. The fruits of study cannot be gathered without its toil. It seems the order of Providence that there should be nothing really valuable in the world not gained by labor, pain, care, or anxiety. In the law, a young man must be the architect of his own character, as well as of his own fortune. "The profession of the law," says Mr. Ritso, "is that, of all others, which imposes the most extensive obligations upon those who have had the confidence to make choice of it; and indeed there is no other path of life in which the unassumed superiority of individual merit is more conspicuously distinguished according to the respective abilities of the parties. The laurels that grow within these precincts are to be gathered with no vulgar hands; they resist the unhallowed grasp, like the golden branch with which the hero of the Æneid threw open the adamantine gates that led to Elysium." No. III. THE ENGLISH BAR. There are three orders of men at the English Bar: 1. Attorneys, or Solicitors in Chancery. 2. Barristers; and 3. Serjeants. 1. _Attorneys and Solicitors._--Acts of Parliament have been made for the regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating and amending several of the laws relating to attorneys and solicitors, prescribes the conditions of admission as an attorney, the time and mode of their service under articles; and the oaths to be administered to them; and authorizes the Judges of the courts of the common law, and the Master of the Rolls to appoint examiners to examine the fitness and capacity of all persons applying to be admitted as attorneys or solicitors; and the certificate, either of the common law or equity examiners, will be sufficient to entitle a person so examined to admission in all the courts, examination by both not being necessary. 3 Stewart's Blackst. 29. 2. _Barristers._--The proper legal denomination of this class is _apprentices_, being the first degree in the law conferred by the inns of court. Spelman defines apprentice, _tyro_, _discipulus_, _novitius in aliqua facultate_. This was probably the meaning of the term primarily; but as early as the reign of Edward I, it was employed to denote counsel below the state and degree of serjeant at law; one degree corresponding to that of bachelor, and the other to that of doctor, in the universities (Pearce's History of the Inns of Court, 28). Lord Coke informs us, however, that this degree was anciently preferred to that of serjeant (2 Inst. 214). They were termed _apprenticii ad legem_, or _ad barras_; and hence arose the cognomen of _barristers_. A barrister must have kept twelve terms, _i. e._, been three years a member of an inn of court, before he can be called to the Bar. After a member of an inn of court has kept twelve terms, he may, without being called, obtain permission to practice _under the Bar_. This class of practitioners are called _special pleaders_ or _equity draftsmen_ (according as they prepare pleadings in the common law or equity courts), or _conveyancers_, who prepare deeds. 3 Stewart's Blackst. 26, note. Those who are regularly called, however, may take upon them the causes of all suitors. Such of the barristers as have a patent of precedence, as king's counsel, sit within the Bar, with the serjeants; all others are called _utter_ or _outer barristers_. 3. _Serjeants at law._--_Servientes ad legem_, or serjeant-countors. The coif or covering to the head worn by this order has also given a denomination to them. There exists some differences of opinion among judicial antiquarians as to the origin of the coif. It is supposed by some to have been invented about the time of Henry III, for the purpose of concealing the clerical tonsure, and thus disguising those renegade clerks, who were desirous of eluding the canon, restraining the clergy from practising as counsel in the secular courts. Hortensius, 349. By others it is referred to a much earlier period, when the practice in the higher courts was monopolized by the clergy, and those who were not in orders invented the coif to conceal the want of clerical tonsure. 1 Campbell's Lives of the Chief Justices, 85, note. There are, indeed, several circumstances to remind us of the ecclesiastical origin of our profession in England. The terms--on the festival of St. Hilary (Bishop of Poictiers, in France, who flourished in the fourth century); Easter; the Holy Trinity; and of the blessed Michael, the Archangel;--the habits of the judges, their appearance in court in scarlet, purple, or black, at particular seasons--the use of the word _brother_ to denote serjeant, and _laity_ to distinguish the people at large from the profession--the coif of the serjeants--the bands worn by judges, serjeants, and counsel, and the gown and hood of graduates of the inns of court,--many of such circumstances raise a strong presumption that the legal university was founded before the time of the enactment of the canons in the reign of King Henry III, compelling the clergy to abandon the practice of the law in the secular courts (Pearce's History, 22). _Nulles clericus nisi causidicus_, was the character given of the clergy, soon after the Conquest, by William of Malmsbury. The judges, therefore, were usually created out of the sacred order, as was likewise the case among the Normans; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be styled _clerks_ to this day (1 Bl. Com. 17). The livings in the gift of the Chancellor were originally intended as a provision for them, and an order was made in Parliament, 4 Edw. III, that "the Chancellor should give the livings in his gift, rated at twenty marks and under, to the King's clerks in Chancery, the Exchequer, and the two Benches, according to usage, and to none others." 1 Campbell's Lives of the Chancellors, 170, note. In the time of Fortescue, sixteen years' continuance in the study of the law was the period of time considered a necessary qualification in candidates for the coif. There seems, however, never to have been a regulation to that effect; and it is certain that persons have often been advanced to this degree before that time. By the common law no one can be appointed a judge of the superior courts, who has not attained the degree of the coif; which degree can only be conferred on a barrister of one of the four inns of court. As soon as any member of an inn of court is raised by royal writ to the state, degree, and dignity of a serjeant-at-law, he ceases to be a member of the society. He removes to a new hall, and appears for the future in the inn of court as a guest (Pearce, 52). The most valuable privilege formerly enjoyed by the serjeants (who, besides the judges, were limited to fifteen in number), was the monopoly of the practice in the Court of Common Pleas. A bill was introduced into Parliament in the year 1755; for the purpose of destroying this monopoly; but it did not pass. In 1834, a warrant under the sign manual of the Crown was directed to the Judges of the Common Pleas, commanding them to open that court to the Bar at large, on the ground that it would tend to the general dispatch of business. This order was received, and the court acted accordingly. But in 1839 the matter was brought before the court by the serjeants, when it was decided that the order was illegal; Tindal, C. J., declaring that, "from time immemorial, the serjeants have enjoyed the exclusive privilege of practising, pleading; and audience in the Court of Common Pleas. Immemorial enjoyment is the most solid of all titles; and we think the warrant of the Crown can no more deprive the serjeant, who holds an immemorial office, of the benefits and privileges which belong to it, than it could alter the administration of the law within the court itself." (10 Bingh. 571; 6 Bingh. N. C. 187, 232, 235.) However, the Statute 9 & 10 Vict. c. 54, has since extended to all barristers the privileges of serjeants in the Court of Common Pleas. FOOTNOTES: [1] This oath seems first to have been prescribed by the Act of Assembly, passed August 22d, 1752: "An act for regulating and establishing fees." (1 Smith's Laws, 218.) It has been copied into the revised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with the addition of the clause to "support the Constitution of the United States, and the Constitution of this Commonwealth." In England, by the Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that all attorneys shall be examined by the Justices, and by their discretion, their names put in the roll, and they that be good and virtuous, and of good fame, shall be received, and sworn well and truly to serve in their offices, and especially that they make no suit in a foreign country." The present oath or affirmation is, that he "will truly and honestly demean himself in the practice of an attorney, according to the best of his knowledge and ability." Stat. 2 Geo. II, c. 23 (A. D. 1729); Stat. 6 & 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at large in 2 Inst. 213; and in the valuable old book, "The Mirror of Justices," chap. 2, sec. 5, it is said that "every countor is chargeable by the oath, that he shall do no wrong nor falsity, contrary to his knowledge, but shall plead for his client the best he can, according to his understanding." [2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb. 349, 354, 387. [3] See Austin's case, 5 Rawle, 203. "An attorney at law," says C. J. Gibson, "is an officer of the court. The terms of the oath, exacted of him at his admission to the bar, prove him to be so;" "you shall behave yourself in your _office_ of attorney," &c. Again: it is declared in the Constitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amended Constitution of 1838), that "no member of Congress, or other person holding any _office_ (except _attorney at law_, and in the militia), shall be a member of either House," &c., which is a direct constitutional recognition. Prior to the Act of 14th April, 1834, which expressly required from them an oath to support the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania, attorneys at law were invariably held to be within the provisions of Art. 6, sect. 3, of the Constitution of the United States, and of Art. 8, of the Constitution of Pennsylvania, requiring all officers, executive and judicial, to take the oath to support those constitutions respectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were held to be officers, within the meaning of a similar clause in the Constitution of New York. "The admission of an attorney, solicitor, or counsellor," says the opinion in that case, "is a general appointment to conduct causes before the courts: this station, thus conferred by public authority, has its peculiar powers, privileges, and duties, and thus becomes an office in the administration of justice." Leigh's case (1 Munford, 468), in which it was held, that attorneys are not officers, within the meaning of the statute of Virginia, requiring all persons holding any office, or place, under the commonwealth, to take an oath against duelling, does not perhaps conflict with this view. The case of Byrne's Admr's _v._ Stewart's Admr's (3 Desaus. 478), may, however, be found upon examination somewhat at variance--not the decision itself, but the views expressed by Chancellor Watres in his opinion. The case simply decided what would seem unquestionable, that the legislature had a right to prohibit any public officer, judicial or otherwise, from practising as an attorney or solicitor. The Chancellor said, "He (a solicitor) can he considered in no other light than that of a private agent for the citizens of the country, who may employ him to do their legal business in the courts; and although the law requires of him certain qualifications, and he receives a license from the judges, yet his office is no more a public one, than would be any other profession or trade, which the legislature might choose to subject to similar regulations, and which is the practice in many other countries. It cannot be doubted, that a man's trade or profession is his property; and if a law should be passed avowedly for the purpose of restraining any member of this bar, who was not a public officer, from exercising his profession, I should declare such law void." This is to assume high ground; but the idea that a man's profession or trade cannot be constitutionally interfered with by legislative enactments, seems scarcely tenable, and especially, so far as the profession of the law is concerned, in view of the absolute power with which every court is clothed, both as to the admission of their attorneys, and forejudging or striking them from the roll. Act of 14th April, 1834, s. 73 (Pamphlet Laws, 354). Courts of record and of general jurisdiction, are vested with exclusive power to regulate the conduct of their own officers, and in this respect their decisions are put on the same footing with that numerous class of cases, which is wisely confided to the legal discretion and judgment of the court, having jurisdiction over the subject-matter. Commonwealth _v._ The Judges, 5 Watts & Serg. 272; _Ex parte_ Burr, 9 Wheat. 531; _Ex parte_ Brown, 1 Howard (Miss.) Rep. 306; Perry _v._ State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. "The power is one which ought to be exercised with great caution, but which is, we think, incidental to all courts, and necessary for the preservation of decorum and for the respectability of the profession." Marshall C. J. 9 Wheat. 531. [4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204. [5] The exact weight of one hundred silver dollars of the old coinage is 85.9375 ounces; of the new coinage, 80 ounces. [6] _Ex parte_ Carter, 1 Philada. Rep. 507. Blaike's Lessee _v._ Chambers, 1 Serg. & Rawle, 169. [7] Court and juries have their respective spheres assigned to them, within which each is to act and move, without encroaching upon the jurisdiction or province of the other. In order, then, that jurors as well as others may know that the direction and decision of the court, on any question of law arising in the course of the trial of an issue of fact, is not to be disregarded, and that a verdict given against such direction, whatever it may be, can never avail anything, unless it be to occasion additional delay, trouble, and expense to the parties, as also to the public, the course of the court is to set the verdict aside, and to order a new trial. And a court, from whose decisions on questions of law, an appeal lies, by writ of error or otherwise, ought never to depart from this course; otherwise the party against whom the verdict is given loses the benefit of such appeal, and of having the question decided by the Appellate Court, which would be a most unjust and illegal deprivation of his right. Per Kennedy, J., in Flemming _v._ Marine Ins. Co. 4 Whart. 67. After two concurring verdicts against the direction of the court in point of law, a new trial will still be awarded. Commissioners of Berks County _v._ Ross, 3 Binn. 520. "Principles the most firmly established might be overturned, because a second jury were obstinate and rash enough to persevere in the errors of the first, in a matter confessed by all to be properly within the jurisdiction of the court; I mean the construction of the law arising from undisputed facts." Per Tilghman, C. J., Ibid. 524. It is not necessary to refer to the numerous cases, both in the English and American courts, which accord with these principles. A judicious selection of the leading ones is to be found in the note to 1 Wharton's Troubat & Haly, 529. The text and the note are confined, of course, to civil cases. [8] Burnet's Life of Sir Matthew Hale, 72. [9] An attorney is not answerable for every error or mistake; he ought not to be liable, in cases of reasonable doubt. Pitt _v._ Yalden, 4 Burrows, 2060. He shall be protected, when he acts with good faith, and to the best of his skill and knowledge. Gilbert _v._ Williams, 8 Mass. 57. The want of ordinary care and skill in such a person is gross negligence. Holmes _v._ Peck, 1 Rhode Island, Rep. 245; Cox _v._ Sullivan, 7 Georgia, 144; Pennington _v._ Yell, 6 Engl. 212. As between the client and the attorney, the responsibility of the latter is as great and as strict here as in any country when want of good faith or attention to the cause is alleged; but in the exercise of the discretionary power usually confided in this country, and especially when the client resides at a great distance, an attorney ought not to be held liable where he has acted honestly and in a way he thought was for the interest of his client. Lynch _v._ The Commonwealth, 16 Serg. & Rawle, 368; Stakely _v._ Robison, 10 Casey, 317. When, however, an attorney disobeys the lawful instructions of his client, and a loss ensues, for that loss the attorney is responsible. Gilbert _v._ Williams, 8 Mass. 57. If the holder of a note place it in the hands of an attorney-at-law, with instructions to bring suit upon it, and the attorney, acting under the honest impression that he would best promote the interests of his client by not bringing suit immediately, omits to do so, and the money is afterwards lost by the insolvency of the maker, the attorney is liable in an action against him; and the measure of damages is what might have been recovered from the maker of the note, if suit had been brought when the note was placed in the hands of the attorney for collection. Cox _v._ Livingston, 2 Watts. & Serg. 103; Wilcox _v._ Plummer, 4 Peters, 172. But a client has no right to control his attorney in the due and orderly conduct of a suit, and it is his duty to do what the court would order to be done, though his client instruct him otherwise. Anon., 1 Wendell, 108. [10] An attorney is not compelled to appear for any one unless he takes his fee or backs the warrant. Anon., 1 Salk. 87. The attorney cannot determine the relation himself, to his client's detriment. Love _v._ Hall, 3 Yerger, 408. When a solicitor appointed by a party has acted as such, he cannot be displaced by the appointment of another, without an order of the court. Mumford _v._ Murray, 1 Hopkins, 369. After an attorney has entered his name upon the record, he cannot withdraw it without leave of the court; and until so withdrawn the service of a citation upon him in case of appeal is sufficient. United States _v._ Curry, 6 Howard, U. S. Rep. 106. [11] A counsel, attorney, or solicitor, will in no case be permitted, even if he should be willing to do so, to divulge any matter which has been communicated to him in professional confidence. This is not his privilege, but the privilege of the client, and none but the client can waive it. Jenkinson _v._ The State, 5 Blackford, 465; Benjamin _v._ Coventry, 19 Wendell, 353; Parker _v._ Carter, 4 Munf. 273; Wilson _v._ Troup, 7 Johns. Ch. Rep. 25; Crosby _v._ Berger, 11 Paige, 377; Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 528; Aiken _v._ Kilburne, 27 Maine, 252; Crisler _v._ Garland, 11 Smedes & Marshall, 136; Chew _v._ The Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be found in some of these cases that though the counsel declined to be engaged for the client, yet the facts communicated were held confidential; the only exception recognized being where a purpose to perpetrate _in futuro_ a felony or an action _malum in se_ was disclosed. Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 377. In Moore _v._ Bray, 10 Barr, 519, it was held that communications of the object, for which an assignment of a mortgage was made, to a counsel concerned for the assignee, were privileged; although no question then arose as to the object of the assignment, and the counsel considered the communication in the light of a casual conversation. "The circle of protection," said Bell, J., "is not so narrow as to exclude communications a professional person may deem unimportant to the controversy, or the briefest and lightest talk the client may choose to indulge with his legal adviser, provided he regards him as such at the moment. To found a distinction on such a ground would be to measure the safety of the confiding party by the extent of his intelligence and knowledge, and to expose to betrayal those very anxieties, which prompt those in difficulty, to seek the ear of him in whom they trust in season and out of season." [12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began," says Lord Campbell, "with the specious but impracticable rule of never pleading except on the right side, which would make the counsel to decide without knowing either facts or law, and would put an end to the administration of justice." 1 Lord Campbell's Lives of the Chief Justices, 412. There is the following curious note by Baxter in Burnet's Life of Hale. "And indeed Judge Hale would tell me that Bishop Usher was much prejudiced against lawyers because the worst causes find their advocates; but that he and Mr. Selden had convinced him of the reasons of it to his satisfaction; and that he did by acquaintance with them believe that there were as many honest men among lawyers, proportionably, as among any profession of men in England (not excepting bishops or divines)." 1 Hale's Works, 106. [13] 2 Wynne's Eunomus, 557. [14] "Although Serjeants have a monopoly of practice in the Common Pleas, they have a right to practice, and do practice, at this bar; and if we were to assign one of them as counsel, and he were to refuse to act, we should make bold to commit him to prison." Per C. J. Hale. 2 Campbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev. 129; 3 Keble, 424, 439, 440. [15] Let the circumstances against a prisoner be ever so atrocious, it is still the duty of the advocate to see that his client is convicted according to those rules and forms which the wisdom of the legislature have established, as the best protection of the liberty and security of the subject. Professor Christian's note to 4 Blackst. Com. 356. From the moment that any advocate can be permitted to say that he _will_ or will _not_ stand between the crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what _he may_ think of the charge or of the defence, he assumes the character of the judge, nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel. Lord Erskine, 6 Campbell's Lives of the Chancellors, 361. [16] Per Gibson, C. J., in Rush _v._ Cavenaugh, 2 Barr, 189. [17] "There are many who know not how to defend their causes in judgment, and there are many who do, and therefore pleaders are necessary; so that that which the plaintiffs or actors cannot or know not how to do by themselves, they may do by their serjeants, attorneys, or friends." Mirr. of Justices, ch. 2, sec. v. [18] Rush _v._ Cavenaugh, 2 Barr, 189. If the client in any suit furnishes his attorney with a plea which the attorney finds to be false, so that he cannot plead it for _the sake of_ his conscience, the attorney may plead in this case, _quod non fuit veraciter informatus_, and in so doing he does his duty. Jenkins, 52. [19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257. [20] Law Magazine, February, 1850, May, 1854. Law Review, February, 1850. Several articles on the subject, taken from the English press, are to be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I have added, in an appendix, Mr. Phillips's vindication of himself from these charges, in his correspondence with his friend Mr. Warren, preceded by a brief statement of the case. [21] The civil law will not allow a man to be convicted on his bare confession, not corroborated by evidence of his guilt; because there may be circumstances which may induce an innocent man to accuse himself. Bowyer's Commentaries, 355, note. Upon a simple and plain confession, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession out of tenderness to the life of the subject; and will generally advise the prisoner to retract it and plead to the indictment. 4 Blackst. Comm. 329. 2 Hale, P. C. 225. [22] Per Story, J., in Williams _v._ Read, 3 Mason, 418. [23] In enumerating the things to which every pleader of others' causes ought to have a regard, the Mirror of Justices says, "That he put no false dilatories into court, nor false witnesses, nor move or offer any false corruptive deceits, leasings, or false lies, nor consent to any such, but truly maintain his client's cause, so that it fail not by any negligence or default in him, nor by any threatening, hurt, or villany, disturb the judge, plaintiff, serjeant, or any other in court, whereby he hinder the right or the hearing of the cause." Chap. 2, s. 5. This is indeed in the very words of the serjeant's oath, and Lord Coke remarks that it consists of four parts: "1. That he shall well and truly serve the king's people, as one of the serjeants at law. 2. That he shall truly counsel them that he shall be retained with, after his cunning. 3. That he shall not defer, wait, or delay their causes willingly for covetousness of money, or other thing that may tend to his profit. 4. That he shall give due attendance accordingly." 2 Inst. 214. [24] A pleader is suspendable when he is attainted to have received fees of two adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5. [25] "It is impossible to state a case, in which a witness should be treated roughly. If you attempt it, every one feels offended, in the person of the witness. You make your work more difficult; the witness shuts himself up, considers you as his enemy, and stands upon his defence: whereas, an open countenance, and an easy insinuating address, unlocks his breast, and disarms him of his caution, if he has any." Deinology, 228. This admirable little work, which has been attributed to the pen of Lord Erskine, cannot be too highly recommended to the student of law. The postscript, which suggests considerations on the _viva voce_ examination of witnesses, is particularly worthy a very attentive perusal. [26] Preston on Estates, 2. [27] Co. Litt. 71 _a._ [28] Ibid. 6 _a._ [29] Art. Edward Tilghman, in the Encyclopædia Americana, vol. xiv; The Leaders of the Old Bar of Philadelphia, 50. Let me recommend to the attention of the student a curious and interesting work, entitled "An introduction to the science of the law, showing the advantages of a legal education, grounded on the learning of Lord Coke's Commentaries, upon Littleton's Tenures, &c., by Frederick Ritso, Esq." There are few works of celebrity, in regard to which such opposite opinions have been maintained as the Commentaries of Sir William Blackstone. While some have expressed the most enthusiastic admiration, there have been others, like Mr. Austin, Professor of General Jurisprudence, in the University of London (Outlines of Lectures, 63), who have dealt in language of unsparing condemnation and contempt. Mr. Ritso thinks that "the error was in adopting them as an institute for the instruction and education of professional students, which was evidently no part of Blackstone's plan, nor within the scope of his engagement." In this point of view, he objects, that "he represents everything rather for effect, than with a view to demonstrate. Like the gnomon upon the sun-dial, he takes no account of any hours, but the serene: Et quæ, Desperat tractata nitescere posse, relinquit. In a professional point of view, this solicitude rather to captivate the imagination of the student, than to exercise and discipline the understanding, is equally unprofitable and inconvenient. It puts him off with ornamental illustration, instead of solid argument, and leads to a sort of half information, which is often much worse than no information at all upon the subject." There is some force in these remarks; yet, too many great lawyers have begun their studies with Blackstone, to leave any doubt that it is a proper first book. It paves the way for more repulsive, though more recondite and valuable works. I very much fear, indeed, that a disposition has existed of late years to repudiate Coke upon Littleton entirely. Chancellor Kent has shown his leaning in that direction (Comm. vol. i, 506, 512). I subscribe fully, however, to Mr. Butler's opinion: "He is the best lawyer, and will succeed best in his profession, who best understands Coke upon Littleton." It ought not, perhaps, to be placed in the hands of the student until he has made some progress in his reading of other works: but sooner or later, he should aim to master it. Lord Coke was, himself, deeply imbued with the love of his profession, and he is able to transfuse his own spirit into his readers. His method may be objectionable in some respects; but I cannot help thinking that the life of his work is gone when it is hacked to pieces, and then attempted to be fitted together again upon another man's skeleton. I have ventured to add in the Appendix (No. II), a sketch of such a course of reading, of not very extensive compass, as may with advantage be pursued by every young man after his admission to the Bar. [30] Maddock's Chancery. Preface. [31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says that the person here mentioned was George Hardinge--a Welsh judge and nephew of Lord Camden. 5 Lives of the Chancellors, 20, 281. According to Lord Mahon, it was on the 15th of March, 1782, in the debate on a motion of Sir John Rouse, of want of confidence in the ministry after the surrender of Lord Cornwallis. He ascribes the remark to Sir James Marriott, but says that, although he was the assertor of this singular argument, the honor of its original invention seems rather to belong to Mr. Hardinge. 5 Mahon's Hist. 139. [32] Gibbon's Decline and Fall of the Roman Empire, c. xliv. [33] Continuus inde et sævus accusandis reis Sicilius, multique audaciæ ejus æmuli. Nam cuncta legum et magistratuum munia in se trahens Princeps, materiam prædandi patefecerat. Nec quidquam publicæ mercis tam venale fuit, quam advocatorum perfidia: adeo ut Samius insignis eques Romanus, quadringentis nummorum millibus, Sicilio datis, et cognita prevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C. Silio consule designato, cujus de potentia et exitio in tempore memorabo, consurgunt patres, legemque Cinciam flagitant, qua cavetur antiquitus ne quis ob causam orandam pecuniam donumve accipiat. Tacit. Annul. 1. 11, c. 5. [34] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 21. While expressing, as will be seen presently, the opinion that authority as well as sound policy would have led me to a different conclusion from that at which Chancellor Walworth arrived, it is proper to acknowledge that I have drawn largely upon his learned judgment in this case, and at the same time to express the high admiration I entertain for the ability with which the last of the New York Chancellors illustrated the chair where such truly great men had sat before him. [35] Gibbon's Decline and Fall, c. xvii. [36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23; Hodgson _v._ Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler's note to 1 Co. Litt. 295 a. So it is with the advocates in the civil law. Vost ad Pand. tit. de Postal. Numb. 6, 7, 8; Gravina de Oster. lib. 1, s. 42, 43, 44. Boucher D'Asyis, Hist. Abrégé de L'Order des Avocats, c. iv. See also the commencement of the Dialogue des Avocats du Parl. de Paris, by Loisil, which contains curious particulars throughout respecting the ancient French Bar. An amusing anecdote is related of Pasquier, the famous French advocate. In 1583, while he was attending the assizes (_les grands jours_) at Troyes, he sat for his portrait, and after the painter had finished the likeness, which Pasquier had not yet examined, he asked him to represent him with a book in his hand. The painter said that it was too late, as the picture was completed without hands. Upon this the witty lawyer immediately wrote the following lines as a motto for the portrait: Nulla hic Pascasio manus est: Lex Cincia quippe Causidicos nulla sanxit habere manus. Forsyth's Hortensius, 424. [37] The reader will find in the Appendix, No. III, an account of the different orders of the English Bar. [38] In some States, the professions of attorney and counsellor at law are not distinct; the same person conducts the cause in all its stages; and it has not been considered that his authority ceases when judgment is obtained. The attorney is in some degree the agent as well as the attorney of the party. Huston, J., in Lynch _v._ The Commonwealth, 16 Serg. & Rawle, 368. [39] Mooney _v._ Lloyd, 5 Serg. & Rawle, 416. [40] Hornblower, C. J., in Seeley et al. _v._ Crane, 3 Green, N. J. 35. "I shall be sorry to see the honorary character of the fees of barristers and physicians done away with. Though it seems to be a shadowy distinction, yet I believe it to be beneficial in effect. It contributes to preserve the idea of profession, of a class which belongs to the public, in the employment and remuneration of which no law interferes, but the citizen acts as he likes, '_foro conscientiæ_.'" Coleridge's Table Talk, vol. 2. [41] Gray _v._ Brackenridge, 2 Penna. Rep. 181; Foster _v._ Jack, 4 Watts, 33. In New Jersey, an advocate's fees are not recoverable at law. Shaver _v._ Norris, Penning. 63; Seeley _v._ Crane, 3 Green, 35; Van Alter _v._ McKinney's Exrs. 1 Harrison, 236. That the general current of decisions is in the opposite direction, will be seen by consulting Stevens _v._ Adams, 23 Wendell, 57; S. C. 26 Wendell, 451; Newman _v._ Washington, Martin & Yerger, 79; Stevens _v._ Monges, 1 Harrington, 127; Bayard _v._ McLane, 3 Harrington, 217; Duncan _v._ Beisthaupt, 1 McCord, 149; Downing _v._ Major, 2 Dana, 228; Christy _v._ Douglas, Wright's Ch. Rep. 485; Webb _v._ Hepp, 14 Missouri, 354; Vilas _v._ Downer, 21 Vermont, 419; Lecatt _v._ Sallee, 3 Porter, 115; Easton _v._ Smith, 1 E. D. Smith, 318. [42] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 451; Foster _v._ Jack, 4 Watts, 337. [43] Senator Verplanck, in Adams _v._ Stevens, 26 Wendell, 451. [44] Vilas _v._ Downer, 21 Vermont, 419. Responsibility in a confidential employment is a legitimate subject of compensation, and in proportion to the magnitude of the interests committed to the agent. Kentucky Bank _v._ Combs, 7 Barr, 543. [45] That evidence of usage is admissible to show what is the rule of compensation for similar services to those sued for, see Vilas _v._ Downer, 21 Vermont, 424; Badfish _v._ Fox, 23 Maine, 94. [46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5, "four things are to be regarded: 1. The greatness of the cause. 2. The pains of the serjeant. 3. His worth, as his learning, eloquence, and gift. 4. The usage of the court." [47] Les lois et les docteurs, les anciennes ordonnances et plusieurs anciens arrêts donnent aux avocats une action pour le paiement de leurs honoraires: mais, suivant la dernière jurisprudence du Parlement de Paris et la discipline actuelle du barreau, ou ne souffre point qu'un avocat intente une telle action. 1 Dupin, Profession d'Avocat, 110. Il est possible, que l'usage ne soit qu'un préjugé; mais ce préjugé a eu une salutaire influence sur la splendeur du barreau Francais. On ne prétend pas, en France, qu'un avocat n'a pas droit à un honoraire pour prix de ses travaux. Jamais on n'a refusé d'en allouer à ceux qui en ont réclamé. Dans plusieurs barreaux, ces réclamations sont même tolerées. Mais le barreau de Paris s'est montré plus sévère; et non seulement autrefois, mais encore aujourd'hui, tout avocat à la cour qui actionnerait un client en paiement d'honoraires serait rayé du tableau. Du reste, s'il est defendu d'exiger, il est permis de recevoir tout ce que le client veut bien assigner pour prix aux services de son avocat, en raison de ses peines et de l'importance des travaux. Ibid. 698. Les honoraires dus par les parties aux avocats chargés du soin de leur défense, ne doivent pas être restraints à la taxe établie par le tarif. Cette taxe a pour objet seulement de fixer la somme due par la partie qui succombe, et non d'apprecier les soins de l'avocat, appreciation qui doit être faite selon l'importance et la difficulté du travail. Ibid. 699. [48] Arden _v._ Patterson, 5 Johns. Ch. Rep. 48. [49] Foster _v._ Jack, 4 Watts, 338, 339. [50] Clippinger _v._ Hepbaugh, 5 Watts. & Serg. 315; Marshall _v._ The Baltimore and Ohio Railroad Co., 16 Howard (S. C.) Rep. 336. That champerty is an offence at common law, and that contracts of that character, between client and counsel, are void on that ground, and as against public policy, will be found to have been maintained in Rust _v._ Larue, 4 Litt. 411; Caldwell's Administrators _v._ Shepherd's Heirs, 6 Monroe, 391; Thurston _v._ Percival, 1 Pick. 415; Arden _v._ Patterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis _v._ Loubert, 2 Denio, 607; Backus _v_. Byron, 4 Michigan, 535; Elliott _v._ McClelland, 17 Alabama, 206. The cases on the other side, are, Thallhimer _v._ Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees _v._ Trent, 10 B. Monroe, 336; Bayard _v._ McLane, 3 Harrington, 216; Lytle _v._ State, 17 Arkansas, 608; Newkirk _v._ Cone, 18 Illinois, 449; Major _v._ Gibson, 1 Patton Jr. & Heath (Va.), 48; Wright _v._ Meek, 3 Iowa, 472. In New York, by the Revised Statutes, it was made an offence, punishable by fine or imprisonment, and removal from the Bar, for any attorney, counsellor, or solicitor, directly or indirectly to buy, or be in any manner interested in buying, or to advance or procure money to be advanced upon anything in action, with the intent, or for the purpose of bringing any suit thereon. 2 Revised Stat. 386. The Code of Procedure appears to have changed the law in this respect, and to enable parties to make such bargains as they please with their attorneys. Code of Procedure, s. 258; Satterlee _v._ Frazer, 2 Sandf. S. C. Rep. 142; Benedict _v_. Stuart, 23 Barb. 420; Ogden _v._ Des Arts, 4 Duer (N. Y.), 275; Sedgwick _v._ Stanton, 4 Kernan, 289. In Kentucky there appears to be a statute, which provides that any one not a party, receiving as compensation for services in prosecuting or defending a suit the whole or part of the subject-matter in suit, is guilty of champerty, and it has been held that this statute extends to attorneys. Davis _v._ Sharron, 15 B. Monroe, 64. In England, contingent fees are held to be clearly within the statutes of champerty and maintenance. Penrice _v._ Parker, Rep. Temp. Finch, 75. [51] 2 Wallace, Jr. Rep. 452. [52] 10 Casey, 299. [53] Paciscendi quidem ille piraticus mos; et imponentium periculis pretia, procul abominanda negotiatio, etiam a mediocriter improbis aberit: cum præsertim bonos homines bonasque causas tuenti non sit metuendus ingratus, qui si futurus, malo tamen ille peccet. Quinct. Lib. xii, c. 7. [54] Evans _v._ Ellis, 5 Denio, 640; Newman _v._ Payne, 2 Ves. 199; Walmsley _v._ Booth, 3 Atk. 25; Montesquieu _v._ Sandys, 18 Ves. 313. The doctrine has been fully followed in this country; Stockton _v._ Ford, 11 How. U. S. 247; Starr _v._ Vanderheyden, 9 Johns. 253; Howell _v._ Ransom, 11 Paige, 538; De Rose _v._ Fay, 4 Edw. Ch. 40; Lewis _v._ J. A., Ibid. 599; Berrien _v._ McLane, 1 Hoffman, Ch. Rep. 424; Miles _v._ Ervin, 1 McCord, Ch. Rep. 524; Rose _v._ Mynell, 7 Yerger, 30; Bibb _v._ Smith, 1 Dana, 482; Smith _v._ Thompson's Heirs, 7 B. Monroe, 308; Jennings _v._ McConnel, 17 Illinois, 148. An agreement made by a client with his counsel, after the latter had been employed in a particular business, by which the original contract is varied, and greater compensation is secured to the counsel than may have been agreed upon when first retained, is invalid and cannot be enforced. Lecatt _v._ Sallee, 3 Porter, 115. [55] In Foss's Grandeur of the Law, eighty-two existing peerages are stated to have sprung from the law. That was in 1843. [56] Non merum, si ob hanc facultatem homines sæpe etiam non nobiles consulatum consecuti sunt: præsertim cum hæc eadem res plurimas gratias, firmissimas amicitias, maxima studia pariat. Cic. pro Muræna. [57] Vivit, vivetque per omnium sæculorum memoriam. Dumque hoc vel forte vel providentia vel utcunque constitutum rerum naturæ corpus, quod ille pæne solus Romanorum animo vidit, ingenio complexus est, eloquentia illuminavit, manebit incolume: comitem ævi sui laudem Ciceronis trahet; omnisque posteritas illius in te scripta mirabitur, tuum in eum factum execrabitur: citiusque in mundo genus hominum, quam cadet. Vell. Patere. L. 2. [58] Sir William Jones adds to his other claims upon our admiration that of a decided partiality to the character and fortunes of our American Republics. "The sum of my opinion is," says he, "that while all the American people understand the modern art of war, and learn jurisprudence by serving in rotation upon grand and petit juries, their liberty is secure, and they will certainly flourish most when their public affairs are best administered by their Senate and Councils. I cannot think a monarchy or an oligarchy _stronger_ in substance, whatever they may be in appearance, than a popular government.... I shall not die in peace without visiting your United States for a few months before the close of the eighteenth century. May I find wisdom and goodness in your Senate, arms and judicature, which are power, in your commons, and the blessings of wealth and peace equally distributed among all." 2 Wynne's Eunomus, 359, note. [59] Note at p. 47. [60] Note at p. 75. 
29513	----	images generously made available by 1st-hand-history.org (http://1st-hand-history.org/) Note: Images of the original pages are available through 1st-hand-history.org. See http://1st-hand-history.org/Marshall/album1.html OPINION OF THE SUPREME COURT OF THE UNITED STATES, AT JANUARY TERM, 1832, DELIVERED BY MR. CHIEF JUSTICE MARSHALL. IN THE CASE OF SAMUEL A. WORCESTER, _Plaintiff in Error_, _versus_ THE STATE OF GEORGIA With a statement of the case, extracted from the Records of the Supreme Court of the United States. Printed from Authenticated Copies. Washington: Printed by Gales and Seaton. 1852. OPINION, &c. SAMUEL A. WORCESTER, _Plaintiff in Error_, _vs._ THE STATE OF GEORGIA. A writ of error was issued from the Supreme Court of the United States, directed to "the honorable the Judges of the Superior Court for the County of Gwinnett, in the State of Georgia," commanding them to "send to the said Supreme Court of the United States, the record and proceedings in the said Superior Court of the County of Gwinnett, between the State of Georgia, Plaintiff, and Samuel A. Worcester, Defendant, on an indictment in that Court." This writ of error was returnable on the second Monday of January, 1832, and was attested by the Honorable HENRY BALDWIN, one of the Associate Justices of the Supreme Court of the United States. A citation was issued, directed to "the State of Georgia," dated October 27, 1831, and signed by the Honorable HENRY BALDWIN, by which the said State was cited to show cause why the error in the judgment against Samuel A. Worcester, in the writ of error mentioned, if there was any error, should not be arrested, and why speedy justice should not be done to the parties in that behalf. The citation was served on his Excellency WILSON LUMPKIN, Governor of the State of Georgia, on the 24th November, 1831, and on CHARLES J. JENKINS, Esq. Attorney General of the said State, on the 22d November, 1831. The writ of error was returned to the Supreme Court of the United States, with the record of the proceedings in the Court for the County of Gwinnett annexed thereto, and with the following certificate, under the seal of the Court: GEORGIA, _Gwinnett County, ss._ I, John G. Park, Clerk of the Superior Court for the County of Gwinnett, and State aforesaid, do certify that the annexed and foregoing is a full and complete exemplification of the proceedings and judgment had in said Court, against Samuel A. Worcester, one of the Defendants in the case therein mentioned as of record in the said Superior Court. Given under my hand, and the seal of the Court, this 28th day of November, 1831. JOHN G. PARK, _Clerk_. _The following is a copy of the Record_: "GEORGIA, _Gwinnett county_: The grand jurors, sworn, chosen, and selected for the county of Gwinnett, to wit: John S. Wilson, Isaac Gilbert, James Wells, Jr., Benjamin S. Smith, James W. Moore, Robert Craig, John M. Thompson, Hamilton Garmany, Amos Wellborn, William Green, Buckner Harris, William Rakestraw, Jones Douglass, Wiley Brogdon, B. F. Johnson, Wilson Strickland, Richard J. Watts, and John White-- In the name and behalf of the citizens of Georgia, charge and accuse Elizur Butler, Samuel A. Worcester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland, and Edward D. Losure, white persons of said county, with the offence of 'residing within the limits of the Cherokee nation, without a licence:' For that the said Elizur Butler, Samuel A. Worcester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland, and Edward D. Losure, white persons as aforesaid, on the fifteenth day of July, eighteen hundred and thirty one, _did reside_ in that part of the Cherokee nation attached by the laws of said State to the said county, and in the county aforesaid, without a licence or permit from his Excellency the Governor of said State, or from any agent authorized by his Excellency the Governor aforesaid to grant such permit or licence, and without having taken the oath to support and defend the constitution and laws of the State of Georgia, and uprightly to demean themselves as citizens thereof, contrary to the laws of said State, the good order, peace, and dignity, thereof. TURNER H. TRIPPE, _Sol. Gen'l._ JNO. W. A. SANFORD, _Pros'r._ _September_, 1831. True bill:--JOHN S. WILSON, _Foreman_. _Witnesses Sworn._--John W. A. Sanford, Charles H. Nelson, Moses Cantrell, William Wood, Jacob R. Brooks, Jno. F. Cox, William Tippins, Hubbard Barker. GWINNETT SUPERIOR COURT, _September Term_, 1831. STATE OF GEORGIA, } _vs._ } _Indictment for a_ SAMUEL A. WORCESTER, ELIZUR BUTLER, } _misdemeanor._ AND OTHERS. } And the said Samuel A. Worcester, in his own proper person, comes and says, that this Court ought not to take further cognizance of the action and prosecution aforesaid, because, he says, that, on the 15th day of July, in the year 1831, he was, and still is, a resident in the Cherokee nation; and that the said supposed crime, or crimes, and each of them, were committed, if committed at all, at the town of New Echota, in the said Cherokee nation, out of the jurisdiction of this court, and not in the county Gwinnett, or elsewhere within the jurisdiction of this Court. And this defendant saith, that he is a citizen of the State of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee nation in the capacity of a duly authorized missionary of the American Board of Commissioners for Foreign Missions, under the authority of the President of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the Gospel to the Cherokee Indians, and in translating the sacred Scriptures into their language, with the permission and approval of the said Cherokee nation, and in accordance with the humane policy of the Government of the United States, for the civilization and improvement of the Indians; and that his residence there, for this purpose, is the residence charged in the aforesaid indictment: and this defendant further saith, that this prosecution the State of Georgia ought not to have or maintain, because, he saith, that several treaties have, from time to time, been entered into between the United States and the Cherokee nation of Indians, to wit: at Hopewell, on the 28th day of November, 1785; at Holston, on the 2d day of July, 1791; at Philadelphia, on the 26th day of June, 1794; at Tellico, on the 2d day of October, 1798; at Tellico, on the 24th day of October, 1804; at Tellico, on the 25th day of October, 1805; at Tellico, on the 27th day of October, 1805; at Washington City, on the 7th day of January, 1805; at Washington City, on the 22d day of March, 1816; at the Chickasaw Council House, on the 14th day of September, 1816; at the Cherokee Agency, on the 8th day of July, 1817, and at Washington City, on the 27th day of February, 1819: all which treaties have been duly ratified by the Senate of the United States of America; and, by which treaties, the United States of America acknowledge the said Cherokee nation to be a sovereign nation, authorized to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several States composing the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole of the territory now occupied by the Cherokee nation, on the East of the Mississippi, has been solemnly guarantied to them; all of which treaties are existing treaties at this day, and in full force. By these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several States composing the Union of the United States; and, it is thereby specially stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the governor of a State, or from some one duly authorized thereto, by the President of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment, were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid, held by them, under the guaranty of the United States: that, for those acts, the defendant is not amenable to the laws of Georgia, nor to the jurisdiction of the courts of the said State; and that the laws of the State of Georgia, which profess to add the said territory to the several adjacent counties of the said State, and to extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in particular, the act on which this indictment _vs._ this defendant is grounded, to wit: "An act entitled an act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the State within the aforesaid territory," are repugnant to the aforesaid treaties; which, according to the constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, unconstitutional, void, and of no effect: that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the various contracts formed by and between the aforesaid Cherokee nation and the said United States of America, as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control, the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the Congress of the United States; and because the said laws are repugnant to the statute of the United States, passed on the ---- day of March, 1802, entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers:" and that, therefore, this Court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further to try and punish this defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them: And, therefore, this defendant prays judgment whether he shall be held bound to answer further to said indictment? GEORGIA, _Gwinnett county_: Personally appeared in open court, Samuel A. Worcester, and, being sworn, saith, that the several matters and things contained in the above and foregoing plea, are true in substance and in fact. Sworn to, and subscribed in open court, this 15th September, 1831. SAMUEL A. WORCESTER. JOHN G. PARK, _Clerk_. _September Term_, 1831. Pleas to the jurisdiction, &c. overruled by the court. Arraigned, and pled not guilty. Copy bill, and list of witnesses, waived. T. H. TRIPPE, _Sol. Gen._ _Jury sworn and empannelled._ 1. James H. Gilreath, 2. Benjamin Towers, 3. Joseph Bolton, 4. Thomas Weems, 5. John Moffett, 6. Wade Peavy, 7. John L. Tippens, 8. Thomas Burge, 9. Eli Elkins, 10. Wm. W. Downs, 11. Matthew Brown, 12. Geo. R. Edwards. _Verdict._ We, the jury, find the defendants guilty. JAMES H. GILREATH, _Foreman._ _September_ 15_th_, 1831. _Sentence._ THE STATE, } _Indictment for residing in the_ _vs._ } _Cherokee nation without license:_ B. F. THOMPSON, AND OTHERS. } _Verdict, "Guilty."_ THE STATE, } _vs._ } _Indictment for residing in the_ ELIZUR BUTLER, SAMUEL A. } _Cherokee nation without license:_ WORCESTER, AND OTHERS. } _Verdict, "Guilty."_ The defendants, in both of the above cases, shall be kept in close custody, by the sheriff of this county, until they can be transported to the penitentiary of this State, and the keeper thereof is hereby directed to receive them, and each of them, into his custody, and keep them, and each of them, at hard labor in said penitentiary, for and during the term of four years." The case of Elizur Butler, Plaintiff in Error, _versus_ the State of Georgia, was brought before the Supreme Court in the same manner. Both cases came on for argument on the 20th of February, 1832, and they were argued by Mr. Sergeant and Mr. Wirt, for the Plaintiffs in Error. There was no appearance for the State of Georgia. On the 3d day of March, 1832, Mr. Chief Justice MARSHALL delivered the opinion of the Court. SAMUEL A. WORCESTER, } Opinion of the Supreme Court _vs._ } of the United States, delivered THE STATE OF GEORGIA. } by Mr. Chief Justice Marshall, } at January Term, 1832. This cause, in every point of view in which it can be placed, is of the deepest interest. The defendant is a State, a member of the Union, which has exercised the powers of government over a People who deny its jurisdiction, and are under the protection of the United States. The plaintiff is a citizen of the State of Vermont, condemned to hard labor for four years in the penitentiary of Georgia, under color of an act which he alleges to be repugnant to the constitution, laws, and treaties, of the United States. The legislative power of a State, the controlling power of the constitution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful People, the personal liberty of a citizen, are all involved in the subject now to be considered. It behooves this Court, in every case, more especially in this, to examine into its jurisdiction with scrutinizing eyes, before it proceeds to the exercise of a power which is controverted. The first step in the performance of this duty is the inquiry whether the record is properly before the Court. It is certified by the clerk of the Court which pronounced the judgment of condemnation under which the plaintiff in error is imprisoned, and is also authenticated by the seal of the Court. It is returned with, and annexed to, a writ of error issued in regular form, the citation being signed by one of the Associate Justices of the Supreme Court, and served on the Governor and Attorney General of the State more than thirty days before the commencement of the term to which the writ of error was returnable. The Judicial act,[1] so far as it prescribes the mode of proceeding, appears to have been literally pursued. [1] Judicial act, sec. 22, 25, v. 2. pp. 64, 65. In February, 1797, a rule[2] was made on this subject, in the following words: "It is ordered by the Court, that the clerk of the Court to which any writ of error shall be directed, may make return of the same by transmitting a true copy of the record, and of all proceedings in the same, under his hand and the seal of the Court." [2] 6 Wh. Rules. This has been done. But the signature of the Judge has not been added to that of the Clerk. The law does not require it. The rule does not require it. In the case of Martin vs. Hunter's lessee,[3] an exception was taken to the return of the refusal of the State Court to enter a prior judgment of reversal by this Court, because it was not made by the Judge of the State Court to which the writ was directed; but the exception was overruled, and the return was held sufficient. In Buel vs. Van Ness,[4] also a writ of error to a State Court, the record was authenticated in the same manner. No exception was taken to it. These were civil cases. But it has been truly said at the bar, that, in regard to this process, the law makes no distinction between a criminal and civil case. The same return is required in both. If the sanction of the Court could be necessary for the establishment of this position, it has been silently given. [3] 1st Wh. 304, 361. [4] 8th Wh. 312. McCulloch vs. the State of Maryland,[5] was a _qui tam_ action, brought to recover a penalty, and the record was authenticated by the seal of the Court and the signature of the Clerk, without that of a Judge. Brown et al. vs. the State of Maryland, was an indictment for a fine and forfeiture. The record in this case, too, was authenticated by the seal of the Court and the certificate of the Clerk. The practice is both ways. [5] 4th Wh. 316. The record, then, according to the Judiciary act, and the rule and the practice of the Court, is regularly before us. The more important inquiry is, does it exhibit a case cognizable by this tribunal? The indictment charges the plaintiff in error, and others, being white persons, with the offence of "residing within the limits of the Cherokee nation without a licence," and "without having taken the oath to support and defend the constitution and laws of the State of Georgia." The defendant in the State Court appeared in proper person, and filed the following plea: "And the said Samuel A. Worcester, in his own proper person, comes and says, that this court ought not to take further cognizance of the action and prosecution aforesaid, because, he says, that, on the 15th day of July, in the year 1831, he was, and still is, a resident in the Cherokee nation; and that the said supposed crime or crimes, and each of them, were committed, if committed at all, at the town of New Echota, in the said Cherokee nation, out of the jurisdiction of this court, and not in the county Gwinnett, or elsewhere within the jurisdiction of this court: And this defendant saith, that he is a citizen of the State of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee nation in the capacity of a duly authorized missionary of the American Board of Commissioners for Foreign Missions, under the authority of the President of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the Gospel to the Cherokee Indians, and in translating the sacred Scriptures into their language, with the permission and approval of the said Cherokee nation, and in accordance with the humane policy of the Government of the United States for the civilization and improvement of the Indians; and that his residence there, for this purpose, is the residence charged in the aforesaid indictment: and this defendant further saith, that this prosecution the State of Georgia ought not to have or maintain, because, he saith, that several treaties have, from time to time, been entered into between the United States and the Cherokee nation of Indians, to wit: at Hopewell, on the 28th day of November, 1785; at Holston, on the 2d day of July, 1791; at Philadelphia, on the 26th day of June, 1794: at Tellico, on the 2d day of October, 1798; at Tellico, on the 24th day of October, 1804; at Tellico, on the 25th day of October, 1805; at Tellico, on the 27th day of October, 1805; at Washington city, on the 7th day of January, 1805; at Washington city, on the 22d day of March, 1816; at the Chickasaw Council House, on the 14th day of September, 1816; at the Cherokee Agency, on the 8th day of July, 1817; and at Washington city, on the 27th day of February, 1819: all which treaties have been duly ratified by the Senate of the United States of America; and, by which treaties, the United States of America acknowledge the said Cherokee nation to be a sovereign nation, authorized to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several States composing the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole of the territory now occupied by the Cherokee nation, on the east of the Mississippi, has been solemnly guarantied to them; all of which treaties are existing treaties at this day, and in full force. By these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several States composing the Union of the United States; and, it is thereby specially stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the governor of a State, or from some one duly authorized thereto, by the President of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment, were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid, held by them, under the guaranty of the United States: that, for those acts, the defendant is not amenable to the laws of Georgia, nor to the jurisdiction of the courts of the said State; and that the laws of the State of Georgia, which profess to add the said territory to the several adjacent counties of the said State, and to extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in particular, the act on which this indictment _vs._ this defendant is grounded, to wit: "An act entitled an act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the State within the aforesaid territory," are repugnant to the aforesaid treaties; which, according to the constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, unconstitutional, void, and of no effect; that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the various contracts formed by and between the aforesaid Cherokee nation and the said United States of America, as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the Congress of the United States; and because the said laws are repugnant to the statute of the United States, passed on the ---- day of March, 1802, entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers:" and that, therefore, this Court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further to try and punish this defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them: And, therefore, this defendant prays judgment whether he shall be held bound to answer further to said indictment." This plea was overruled by the Court. And the prisoner, being arraigned, pleaded not guilty. The jury found a verdict against him, and the Court sentenced him to hard labor, in the penitentiary, for the term of four years. By overruling this plea, the Court decided that the matter it contained was not a bar to the action. The plea, therefore, must be examined, for the purpose of determining whether it makes a case which brings the party within the provisions of the 25th section of the "Act to establish the judicial courts of the United States." The plea avers that the residence, charged in the indictment, was under the authority of the President of the United States, and with the permission and approval of the Cherokee nation. That the treaties, subsisting between the United States and the Cherokees, acknowledge their right as a sovereign nation to govern themselves and all persons who have settled within their territory, free from any right of legislative interference by the several States composing the United States of America. That the act under which the prosecution was instituted is repugnant to the said treaties, and is, therefore, unconstitutional and void. That the said act is, also, unconstitutional; because it interferes with, and attempts to regulate and control, the intercourse with the Cherokee nation, which belongs, exclusively, to Congress; and, because, also, it is repugnant to the statute of the United States, entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers." Let the averments of this plea be compared with the 25th section of the Judicial act. That section enumerates the cases in which the final judgment or decree of a State Court may be revised in the Supreme Court of the United States. These are, "where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws, of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said constitution, treaty, statute, or commission." The indictment and plea, in this case, draw in question, we think, the validity of the treaties made by the United States with the Cherokee Indians: if not so, their construction is certainly drawn in question; and the decision has been, if not against their validity, "against the right, privilege, or exemption, specially set up and claimed under them." They also draw into question the validity of a statute of the State of Georgia, "on the ground of its being repugnant to the constitution, treaties, and laws, of the United States, and the decision is in favor of its validity." It is, then, we think, too clear for controversy, that the act of Congress, by which this court is constituted, has given it the power, and, of course, imposed on it the duty, of exercising jurisdiction in this case. This duty, however unpleasant, cannot be avoided. Those who fill the Judicial Department have no discretion in selecting the subjects to be brought before them. We must examine the defence set up in this plea. We must inquire and decide whether the act of the Legislature of Georgia, under which the plaintiff in error has been prosecuted and condemned, be consistent with, or repugnant to, the constitution, laws, and treaties, of the United States. It has been said at the bar, that the acts of the Legislature of Georgia seize on the whole Cherokee country, parcel it out among the neighboring counties of the State, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence. If this be the general effect of the system, let us inquire into the effect of the particular statute and section on which the indictment is founded. It enacts that "all white persons, residing within the limits of the Cherokee nation on the first day of March next, or at any time thereafter, without a licence or permit from his Excellency the Governor, or from such agent as his Excellency the Governor shall authorize to grant such permit or licence, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanor, and, upon conviction thereof, shall be punished by confinement to the penitentiary, at hard labor, for a term not less than four years." The 11th section authorizes the Governor, "should he deem it necessary for the protection of the mines, or the enforcement of the laws in force within the Cherokee Nation, to raise and organize a guard," &c. The 13th section enacts, "that the said guard or any member of them, shall be, and they are hereby, authorized and empowered to arrest any person legally charged with or detected in a violation of the laws of this State, and to convey, as soon as practicable, the person so arrested, before a Justice of the peace, judge of the superior, justice of inferior court of this State, to be dealt with according to law." The extra-territorial power of every Legislature being limited in its action, to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction over the Cherokee Nation, and of the rights and powers consequent on jurisdiction. The first step, then, in the inquiry, which the constitution and laws impose on this Court, is an examination of the rightfulness of this claim. America, separated from Europe by a wide ocean, was inhabited by a distinct People, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer, rights in the country discovered, which annulled the pre-existing rights of its ancient possessors. After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this Western world. They found it in possession of a People who had made small progress in agriculture or manufactures, and whose general employment was war, hunting, and fishing. Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several Governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers? But power, war, conquest, give rights, which, after possession, are conceded by the world, and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions. The great maritime Powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, "that discovery gave title to the Government by whose subjects or by whose authority it was made, against all other European Governments, which title might be consummated by possession."[6] [6] 8th Wh. 573. This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle, which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political, but no attempt, so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other. Soon after Great Britain determined on planting colonies in America, the King granted charters to companies of his subjects, who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport generally to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim, nor was it so understood. The power of making war is conferred by these charters on the colonies, but _defensive_ war alone seems to have been contemplated. In the first charter to the first and second colonies, they are empowered, "for their several _defences_, to encounter, expulse, repel, and resist, all persons who shall, without license," attempt to inhabit "within the said precincts and limits of the said several colonies, or that shall enterprise or attempt at any time hereafter the least detriment or annoyance of the said several colonies or plantations." The charter to Connecticut concludes a general power to make defensive war with these terms: "and upon _just causes_ to invade and destroy the natives or other enemies of the said colony." The same power, in the same words, is conferred on the government of Rhode Island. This power to repel invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only "on just cause." The very terms imply the existence of a country to be invaded, and of an enemy who has given just cause of war. The charter to William Penn contains the following recital: "and because, in so remote a country, near so many barbarous nations, the incursions, as well of the savages themselves, as of other enemies, pirates, and robbers, may probably be feared, therefore we have given," &c. The instrument then confers the power of war. These barbarous nations, whose incursions were feared, and to repel whose incursions the power to make war was given, were surely not considered as the subjects of Penn, or occupying his lands during his pleasure. The same clause is introduced into the charter to Lord Baltimore. The charter to Georgia professes to be granted for the charitable purpose of enabling poor subjects to gain a comfortable subsistence by cultivating lands in the American provinces, "at present waste and desolate." It recites: "and whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that of South Carolina, which, in the late war by the neighboring savages, was laid waste by fire and sword, and great numbers of the English inhabitants miserably massacred; and our loving subjects, who now inhabit there, by reason of the smallness of their numbers, will, in case of any new war, be exposed to the like calamities, inasmuch as their whole Southern frontier continueth unsettled, and lieth open to the said savages." These motives for planting the new colony are incompatible with the lofty ideas of granting the soil and all its inhabitants from sea to sea. They demonstrate the truth, that these grants asserted a title against Europeans only, and were considered as blank paper so far as the rights of the natives were concerned. The power of war is given only for defence, not for conquest. The charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity--objects to be accomplished by conciliatory conduct, and good example; not by extermination. The actual state of things, and the practice of European nations, on so much of the American continent as lies between the Mississippi and the Atlantic, explain their claims and the charters they granted. Their pretensions unavoidably interfered with each other: though the discovery of one was admitted by all to exclude the claim of any other, the extent of that discovery was the subject of unceasing contest. Bloody conflicts arose between them, which gave importance and security to the neighboring nations. Fierce and warlike in their character, they might be formidable enemies, or effective friends. Instead of rousing their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. The English, the French, and the Spaniards, were equally competitors for their friendship and their aid. Not well acquainted with the exact meaning of words, nor supposing it to be material whether they were called the subjects, or the children of their father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the Power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably the sense in which the term was understood by them. Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt, on the part of the crown, to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign Powers, who, as traders or otherwise, might seduce them into foreign alliances. The King purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only. The general views of Great Britain, with regard to the Indians, were detailed by Mr. Stuart, superintendent of Indian affairs, in a speech delivered at Mobile, in presence of several persons of distinction, soon after the peace of 1763. Towards the conclusion he says, "lastly, I inform you that it is the King's order to all his Governors and subjects to treat the Indians with justice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly, all individuals are prohibited from purchasing any of your lands; but, as you know that, as your white brethren cannot feed you when you visit them, unless you give them ground to plant, it is expected that you will cede lands to the King for that purpose. But, whenever you shall be pleased to surrender any of your territories to his majesty, it must be done, for the future, at a public meeting of your nation, when the governors of the provinces, or the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be accurately fixed, and no settlement permitted to be made upon them. As you may be assured that all treaties with you will be faithfully kept, so it is expected that you, also, will be careful strictly to observe them." The proclamation issued by the King of Great Britain, in 1763, soon after the ratification of the articles of peace, forbids the governors of any of the colonies to grant warrants of survey, or pass patents upon any lands whatever, which, not having been ceded to, or purchased by, us, (the King) as aforesaid, are reserved to the said Indians, or any of them. The proclamation proceeds: "and we do farther declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve, under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands and territories lying to the westward of the sources of the rivers which fall into the sea, from the west and northwest as aforesaid: and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and licence for that purpose first obtained. "And we do further strictly enjoin and require all persons whatever, who have, either wilfully or inadvertently, seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements." A proclamation, issued by Governor Gage, in 1779, contains the following passage: "Whereas many persons, contrary to the positive orders of the King, upon this subject, have undertaken to make settlements beyond the boundaries fixed by the treaties made with the Indian nations, which boundaries ought to serve as a barrier between the whites and the said nations;" particularly on the Ouabache, the proclamation orders such persons to quit those countries without delay. Such was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition of the charters she had granted: she considered them as nations capable of maintaining the relations of peace and war; of governing themselves, under her protection; and she made treaties with them, the obligation of which she acknowledged. This was the settled state of things when the war of our Revolution commenced. The influence of our enemy was established; her resources enabled her to keep up that influence; and the colonists had much cause for the apprehension that the Indian nations would, as the allies of Great Britain, add their arms to hers. This, as was to be expected, became an object of great solicitude to Congress, Far from advancing a claim to their lands, or asserting any right of dominion over them, Congress resolved "that the securing and preserving the friendship of the Indian nations appears to be a subject of the utmost moment to these colonies." The early journals of Congress exhibit the most anxious desire to conciliate the Indian nations. Three Indian departments were established; and commissioners appointed in each, "to treat with the Indians in their respective departments, in the name and on behalf of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions." The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend, and everything which might excite hostility was avoided. The first treaty was made with the Delawares, in September, 1778. The language of equality in which it is drawn, evinces the temper with which the negotiation was undertaken, and the opinion which then prevailed in the United States. "1st. That all offences or acts of hostilities, by one or either of the contracting parties against the other, be mutually forgiven, and buried in the depth of oblivion, never more to be had in remembrance. "2d. That a perpetual peace and friendship shall, from henceforth, take place and subsist between the contracting parties aforesaid, through all succeeding generations: and if either of the parties are engaged in a just and necessary war, with any other nation or nations, that then each shall assist the other, in due proportion to their abilities, till their enemies are brought to reasonable terms of accommodation," &c. 3d. The third article stipulates, among other things, a free passage for the American troops through the Delaware nation, and engages that they shall be furnished with provisions and other necessaries at their value. "4th. For the better security of the peace and friendship now entered into by the contracting parties against all infractions of the same by the citizens of either party, to the prejudice of the other, neither party shall proceed to the infliction of punishments on the citizens of the other, otherwise than by securing the offender or offenders, by imprisonment, or any other competent means, till a fair and impartial trial can be had by judges or juries of both parties, as near as can be to the laws, customs, and usages, of the contracting parties, and natural justice," &c. 5th. The fifth article regulates the trade between the contracting parties, in a manner entirely equal. 6th. The sixth article is entitled to peculiar attention, as it contains a disclaimer of designs which were, at that time, ascribed to the United States, by their enemies, and from the imputation of which Congress was then peculiarly anxious to free the Government. It is in these words: "Whereas the enemies of the United States have endeavored, by every artifice in their power, to possess the Indians in general with an opinion that it is the design of the States aforesaid to extirpate the Indians, and take possession of their country: To obviate such false suggestion the United States do engage to guaranty to the aforesaid nation of Delawares, and their heirs, all their territorial rights, in the fullest and most ample manner, as it hath been bounded by former treaties, as long as the said Delaware nation shall abide by, and hold fast, the chain of friendship now entered into." The parties further agree, that other tribes, friendly to the interest of the United States, may be invited to form a State, whereof the Delaware nation shall be the heads, and have a representation in Congress. This treaty, in its language, and in its provisions, is formed, as near as may be, on the model of treaties between the crowned heads of Europe. The sixth article shows how Congress then treated the injurious calumny of cherishing designs unfriendly to the political and civil rights of the Indians. During the war of the Revolution, the Cherokees took part with the British. Alter its termination, the United States, though desirous of peace, did not feel its necessity so strongly as while the war continued. Their political situation being changed, they might very well think it advisable to assume a higher tone, and to impress on the Cherokees the same respect for Congress which was before felt for the King of Great Britain. This may account for the language of the treaty of Hopewell. There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them. The treaty is introduced with the declaration, that "The commissioners plenipotentiary of the United States give peace to all the Cherokees, and receive them into the favor and protection of the United States of America, on the following conditions." When the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as the Cherokees? We may ask, further: Did the Cherokees come to the seat of the American Government to solicit peace; or, did the American commissioners go to them to obtain it? The treaty was made at Hopewell, not at New York. The word "give," then, has no real importance attached to it. The first and second articles stipulate for the mutual restoration of prisoners, and are of course equal. The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other Power. This stipulation is found in Indian treaties, generally. It was introduced into their treaties with Great Britain; and may probably be found in those with other European Powers. Its origin may be traced to the nature of their connexion with those Powers; and its true meaning is discerned in their relative situation. The general law of European sovereigns, respecting their claims in America, limited the intercourse of Indians, in a great degree, to the particular potentate, whose ultimate right of domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of Government was interposed to restrain the disorderly and licentious from intrusions into their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection, only what was beneficial to themselves--an engagement to punish aggressions on them. It involved practically no claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbor, and receiving the advantages of that protection, without involving a surrender of their national character. This is the true meaning of the stipulation, and is undoubtedly the sense in which it was made. Neither the British Government, nor the Cherokees, ever understood it otherwise. The same stipulation entered into with the United States, is undoubtedly to be construed in the same manner. They receive the Cherokee nation into their favor and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other Power. Protection does not imply the destruction of the protected. The manner in which this stipulation was understood by the American Government, is explained by the language and acts of our first President. The fourth article draws the boundary between the Indians and the citizens of the United States. But, in describing this boundary, the term "allotted" and the term "hunting ground" are used. Is it reasonable to suppose, that the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language, should distinguish the word "allotted" from the words "marked out." The actual subject of contract was the dividing line between the two nations, and their attention may very well be supposed to have been confined to that subject. When, in fact, they were ceding lands to the United States, and describing the extent of their cession, it may very well be supposed that they might not understand the term employed, as indicating that, instead of granting, they were receiving lands. If the term would admit of no other signification, which is not conceded, its being misunderstood is so apparent, results so necessarily from the whole transaction, that it must, we think, be taken in the sense in which it was most obviously used. So with respect to the words "hunting grounds." Hunting was at that time the principal occupation of the Indians, and their land was more used for that purpose than for any other. It could not, however, be supposed, that any intention existed of restricting the full use of the lands they reserved. To the United States, it could be a matter of no concern, whether their whole territory was devoted to hunting grounds, or whether an occasional village, and an occasional corn field, interrupted, and gave some variety to the scene. These terms had been used in their treaties with Great Britain, and had never been misunderstood. They had never been supposed to imply a right in the British Government to take their lands, or to interfere with their internal Government. The 5th article withdraws the protection of the United States from any citizen who has settled, or shall settle, on the lands allotted to the Indians, for their hunting grounds; and stipulates that, if he shall not remove within six months, the Indians may punish him. The 6th and 7th articles stipulate for the punishment of the citizens of either country, who may commit offences on or against the citizens of the other. The only inference to be drawn from them is, that the United States considered the Cherokees as a nation. The 9th article is in these words: "For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in Congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and _managing all their affairs_, as they think proper." To construe the expression "managing all their affairs," into a surrender of self government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. The great subject of the article is the Indian trade. The influence it gave, made it desirable that Congress should possess it. The commissioners brought forward the claim, with the profession that their motive was, "the benefit and comfort of the Indians, and the prevention of injuries or oppressions." This may be true, as respects the regulation of their trade, and as respects the regulation of all affairs connected with their trade, but cannot be true, as respects the management of all their affairs. The most important of these, is the cession of their lands, and security against intruders on them. Is it credible, that they could have considered themselves as surrendering to the United States, the right to dictate their future cessions, and the terms on which they should be made? or to compel their submission to the violence of disorderly and licentious intruders? It is equally inconceivable that they could have supposed themselves, by a phrase thus slipped into an article, on another and most interesting subject, to have divested themselves of the right of self government on subjects not connected with trade. Such a measure could not be "for their benefit and comfort," or for "the prevention of injuries and oppression." Such a construction would be inconsistent with the spirit of this and of all subsequent treaties; especially of those articles which recognise the right of the Cherokees to declare hostilities, and to make war. It would convert a treaty of peace covertly into an act, annihilating the political existence of one of the parties. Had such a result been intended, it would have been openly avowed. This treaty contains a few terms capable of being used in a sense which could not have been intended at the time, and which is inconsistent with the practical construction which has always been put on them; but its essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertain the boundaries between them and the United States. The treaty of Hopewell seems not to have established a solid peace. To accommodate the differences still existing between the State of Georgia and the Cherokee nation, the treaty of Holston was negotiated, in July, 1791. The existing constitution of the United States had been then adopted, and the Government, having more intrinsic capacity to enforce its just claims, was perhaps less mindful of high sounding expressions, denoting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citizens of the United States of America and all the individuals composing the Cherokee nation. The second article repeats the important acknowledgment, that the Cherokee nation is under the protection of the United States of America, and of no other sovereign whosoever. The meaning of this has been already explained. The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into their country. That Power was naturally termed their protector. They had been arranged under the protection of Great Britain: but the extinguishment of the British power in their neighborhood, and the establishment of that of the United States, in its place, led naturally to the declaration, on the part of the Cherokees, that they were under the protection of the United States, and of no other Power. They assumed the relation with the United States which had before subsisted with Great Britain. This relation was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting as subjects to the laws of a master. The third article contains a perfectly equal stipulation for the surrender of prisoners. The fourth article declares, that "the boundary between the United States and the Cherokee nation shall be as follows: Beginning," &c. We hear no more of "allotments" or of "hunting grounds." A boundary is described, between nation and nation, by mutual consent. The national character of each, the ability of each to establish this boundary, is acknowledged by the other. To preclude forever all disputes, it is agreed that it shall be plainly marked by commissioners, to be appointed by each party; and, in order to extinguish forever, all claim of the Cherokees to the ceded lands, an additional consideration is to be paid by the United States. For this additional consideration the Cherokees release all right to the ceded land, forever. By the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the Tennessee river. The acceptance of these cessions is an acknowledgment of the right of the Cherokees to make or withhold them. By the sixth article it is agreed, on the part of the Cherokees, that the United States shall have the sole and exclusive right of regulating their trade. No claim is made to the management of all their affairs. This stipulation has already been explained. The observation may be repeated, that the stipulation is itself an admission of their right to make or refuse it. By the seventh article the United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded. The eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands; and the ninth forbids any citizen of the United States to hunt on their lands, or to enter their country without a passport. The remaining articles are equal, and contain stipulations which could be made only with a nation admitted to be capable of governing itself. This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force. To the general pledge of protection have been added several specific pledges, deemed valuable by the Indians. Some of these restrain the citizens of the United States from encroachments on the Cherokee country, and provide for the punishment of intruders. From the commencement of our Government, Congress has passed acts to regulate trade and intercourse with the Indians, which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States. In 1819, Congress passed an act for promoting these humane designs of civilizing the neighboring Indians, which had long been cherished by the Executive. It enacts, "that, for the purpose of providing against the further decline and filial extinction of the Indian tribes adjoining to the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the President of the United States shall be, and he is hereby, authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced, _with their own consent_, to employ capable persons, of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing, and arithmetic; and for performing such other duties as may be enjoined, according to such instructions and rules as the President may give and prescribe for the regulation of their conduct in the discharge of their duties." This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists. Though the Cherokees had already made considerable progress in this improvement, it cannot be doubted that the general words of the act comprehend them. Their advance in the "habits and arts of civilization." rather encouraged perseverance in the laudable exertions still farther to meliorate their condition. This act furnishes strong additional evidence of a settled purpose to fix the Indians in their country by giving them security at home. The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States; and provide that all intercourse with them shall be carried on exclusively by the Government of the Union. Is this the rightful exercise of power, or is it usurpation? While these States were colonies, this power, in its utmost extent, was admitted to reside in the crown. When our Revolutionary struggle commenced, Congress was composed of an assemblage of deputies acting under specific powers granted by the Legislatures, or conventions of the several colonies. It was a great popular movement, not perfectly organized, nor were the respective powers of those who were entrusted with the management of affairs accurately defined. The necessities of our situation produced a general conviction that those measures which concerned all, must be transacted by a body in which the representatives of all were assembled, and which could command the confidence of all; Congress, therefore, was considered as invested with all the powers of war and peace, and Congress dissolved our connexion with the mother country, and declared these United Colonies to be independent States. Without any written definition of powers, they employed diplomatic agents to represent the United States at the several Courts of Europe; offered to negotiate treaties with them; and did actually negotiate treaties with France. From the same necessity, and on the same principles, Congress assumed the management of Indian affairs; first in the name of these United Colonies, and afterwards in the name of the United States. Early attempts were made at negotiation, and to regulate trade with them. These not proving successful, war was carried on under the direction, and with the forces of the United States, and the efforts to make peace, by treaty, were earnest and incessant. The Confederation found Congress in the exercise of the same powers of peace and war, in our relations with Indian nations, as with those of Europe. Such was the state of things when the Confederation was adopted. That instrument surrendered the powers of peace and war to Congress, and prohibited them to the States, respectively, unless a State be actually invaded, "or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of delay till the United States, in Congress assembled, can be consulted." This instrument also gave the United States in Congress assembled the sole and exclusive right of "regulating the trade, and managing all the affairs with the Indians, not members of any of the States: _Provided_, That the legislative power of any State within its own limits be not infringed or violated." The ambiguous phrases which follow the grant of power to the United States, were so construed by the States of North Carolina and Georgia as to annul the power itself. The discontents and confusion resulting from these conflicting claims, produced representations to Congress, which were referred to a committee, who made their report in 1787. The report does not assent to the construction of the two States, but recommends an accommodation, by liberal cessions of territory, or by an admission, on their part, of the powers claimed by Congress. The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution. That instrument confers on Congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several States, and _with the Indian tribes_. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions. The shackles imposed on this power, in the Confederation, are discarded. The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term, "nation," so generally applied to them, means "a People distinct from others." The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and, consequently, admits their rank among those Powers who are capable of making treaties. The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense. Georgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those entertained by her sister States, and by the Government of the United States. Various acts of her Legislature have been cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence in the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States, with their consent; that their territory was separated from that of any State within whose chartered limits they might reside, by a boundary line, established by treaties; that, within their boundary, they possessed rights with which no State could interfere; and that the whole power of regulating the intercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her new series of laws, manifesting her abandonment of these opinions, appears to have commenced in December, 1828. In opposition to this original right, possessed by the undisputed occupants of every country, to this recognition of that right, which is evidenced by our history in every change through which we have passed, is placed the charters granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others, whom he could not remove, and did not attempt to remove, and the cession made of his claims, by the treaty of peace. The actual state of things at the time, and all history since, explain these charters; and the King of Great Britain, at the treaty of peace, could cede only what belonged to his crown. These newly asserted titles can derive no aid from the articles so often repeated in Indian treaties, extending to them, first, the protection of Great Britain, and afterwards, that of the United States. These articles are associated with others, recognizing their title to self government. The very fact of repeated treaties with them recognizes it; and the settled doctrine of the law of nations is, that the weaker power does not surrender its independence--its right to self government--by associating with a stronger, and taking its protection. A weak State, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a State. Examples of this kind are not wanting in Europe. "Tributary and feudatory States," says Vattel, "do not thereby cease to be sovereign and independent States, so long as self government and sovereign and independent authority is left in the administration of the State." At the present day, more than one State may be considered as holding its right of self government under the guarantee and protection of one or more allies. The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the Government of the United States. The act of the State of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity. Can this Court revise and reverse it? If the objection to the system of legislation, lately adopted by the Legislature of Georgia, in relation to the Cherokee nation, was confined to its extraterritorial operation, the objection, though complete, so far as respected mere right, would give this Court no power over the subject. But it goes much further. If the view which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties, of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the Government of the Union. They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the pre-existing power of the nation to govern itself. They are in equal hostility with the acts of Congress for regulating this intercourse and giving effect to the treaties. The forcible seizure and abduction of the plaintiff in error, who was residing in the nation, with its permission, and by authority of the President of the United States, is also a violation of the acts which authorize the Chief Magistrate to exercise this authority. Will these powerful considerations avail the plaintiff in error? We think they will. He was seized, and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided, and taking it under the protection of the United States. He was seized while performing, under the sanction of the Chief Magistrate of the Union, those duties which the humane policy adopted by Congress had recommended. He was apprehended, tried, and condemned, under color of a law which has been shown to be repugnant to the constitution, laws, and treaties, of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this Court. It cannot be less clear when the judgment affects personal liberty, and inflicts disgraceful punishment, if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protection of the constitution, laws, and treaties, of his country. It is the opinion of this Court that the judgment of the Superior Court for the county of Gwinnett, in the State of Georgia, condemning Samuel A. Worcester to hard labor, in the penitentiary of the State of Georgia, for four years, was pronounced by that Court under color of a law which is void, as being repugnant to the constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled. MANDATE OF THE COURT. SUPREME COURT OF THE UNITED STATES, _January Term_, 1832. SAMUEL A. WORCESTER, } _In Error to the Superior_ _Plaintiff in Error_, } _Court for the County of_ _vs._ } _Gwinnett, in the State of_ THE STATE OF GEORGIA. } _Georgia._ This cause came on to be heard on the transcript of the record from the Superior Court for the County of Gwinnett, in the State of Georgia, and was argued by counsel: on consideration whereof, it is the opinion of this Court, that the act of the Legislature of the State of Georgia, upon which the indictment in this case is founded, is contrary to the constitution, treaties, and laws, of the United States; and, that the special plea, in bar, pleaded by the said Samuel A. Worcester, in manner aforesaid, and relying upon the constitution, treaties, and laws, of the United States, aforesaid, is a good bar and defence to the said indictment, by the said Samuel A. Worcester; and, as such, ought to have been allowed and admitted by the said Superior Court for the County of Gwinnett, in the State of Georgia, before which the said indictment was pending and tried; and that there was error in the said Superior Court of the State of Georgia, in overruling the plea so pleaded, as aforesaid. It is, therefore, ordered and adjudged, that the judgment rendered in the premises, by the said Superior Court of Georgia, upon the verdict upon the plea of Not Guilty, afterwards pleaded by the said Samuel A. Worcester, whereby the said Samuel A. Worcester is sentenced to hard labor in the penitentiary of the State of Georgia, ought to be reversed and annulled. And this Court, proceeding to render such judgment as the said Superior Court of the State of Georgia should have rendered, it is further ordered and adjudged, that the said judgment of the said Superior Court be, and hereby is, reversed and annulled; and that judgment be, and hereby is, awarded, that the special plea in bar, so as aforesaid pleaded, is a good and sufficient plea in bar, in law, to the indictment aforesaid, and that all proceedings on the said indictment do forever surcease, and that the said Samuel A. Worcester be, and hereby is, henceforth dismissed therefrom, and that he go thereof quit without day. And that a special mandate do go from this Court to the said Superior Court, to carry this judgment into execution. MARCH 5, 1832. 
252	----	Copyright Act of 1976 Source: Title 17, United States Code, Sections 101-810. [Sections 106, 107, and 108 of the U.S. Copyright Act are of particular interest to the projected user community of this information. However, in order to have the convenience of access to the complete act available it is provided here in its entirety.] Section 101. Definitions. As used in this title, the following terms and their variant forms mean the following: An "anonymous work" is a work on the copies or phonorecords of which no natural person is identified as author. "Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. The "best edition" of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes. A person's "children" are that person's immediate offspring, whether legitimate or not, and any children legally adopted by that person. A "collective work" is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works. A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. "Copyright owner," with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right. A work is "created" when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work." A "device," "machine," or "process" is one now known or later developed. To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or processor, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed for purposes of this title if a fixation of the work is being made simultaneously with its transmission. The terms "including" and "such as" are illustrative and not limitative. A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. "Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. "Motion pictures" are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any. To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. "Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed. "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, and models. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. A "pseudonymous work" is a work on the copies or phonorecords of which the author is identified under a fictitious name. "Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. To perform or display a work "publicly" means-- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or, (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. "Sound recordings" are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. "State" includes the District of Columbia and the Commonwealth of Puerto Rico, and any territories to which this title is made applicable by an Act of Congress. A "Transfer of copyright ownership" is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license. A "transmission program" is a body of material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit. To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. The "United States," when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government. A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article." The author's "widow" or "widower" is the author's surviving spouse under the law of the author's domicile at the time of his or her death, whether or not the spouse has later remarried. A "work of the United States Government" is a work prepared by any officer or employee of the United States Government as part of that person's official duties. A "work made for hire" is-- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. Section 102. Subject matter of copyright: In general. (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works: (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Section 103. Subject matter of copyright: Compilations and derivative works. (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Section 104. Subject matter of copyright: National origin. (a) Unpublished Works.--The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author. (b) Published Works.--The works specified by section 102 and 103, when published, are subject to protection under this title if-- (1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a foreign nation that is a party to a copyright treaty to which the United States is also a party, or is a stateless person, wherever that person may be domiciled; or (2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a party to the Universal Copyright Convention; or (3) the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or (4) the work comes within the scope of a Presidential proclamation. Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States or to works that are first published in the United States, copyright protection on substantially the same basis as that on which the foreign nation extends protection to works of its own nationals and domiciliaries and works first published in that nation, the President may by proclamation extend protection under this title to works of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation, or which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under a proclamation. Section 105. Subject matter of copyright: United States Government works. Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. Section 106. Exclusive rights in copyrighted works. Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted publicly. Section 107. Limitations on exclusive rights: Fair use. Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Section 108. Limitations on exclusive rights: Reproduction by libraries and archives. (a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, or to distribute such copy or phonorecord, under the conditions specified by this section, if-- (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copyright. (b) The rights of reproduction and distribution under this section apply to a copy or phonorecord of any unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phonorecord reproduced is currently in the collections of the library or archives. (c) The right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. (d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work if-- (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. (e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a pair (sic) prices, if-- (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. (f) Nothing in this section-- (1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law; (2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107; (3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual new program, subject to clauses (1), (2), and (3) of subsection (a); or (4) in any way affects the rights of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections. (g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee-- (1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or (2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this cause prevents a library or archives from participating in interlibrary arrangements that do not have as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work. (h) The rights of reproduction and distribution under the section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to right granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e). (i) Five years from the effective date of this Act, and at five-year intervals thereafter, the Register of Copyrights, after consulting with representatives of authors, book and periodical publishers, and other owners of copyrighted materials, and with representatives of library users and librarians, shall submit to the Congress a report setting forth the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted. Section 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord. (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. (b) (1) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording and in the musical works embodied therein, the owner of a particular phonorecord may not, for purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. (2) Nothing in this subsection shall affect any provision of the antitrust laws. For purposes of the preceding sentence, "antitrust laws" has the meaning given that term in the first section of the Clayton Act and includes section 5 or the Federal Trade Commission Act to the extent that section relates to unfair methods of competition. (3) Any person who distributes a phonorecord in violation of clause (1) is an infringer of copyright under section 501 of this title and is subject to the remedies set forth in sections 502, 503, 504, 505, and 509. Such violation shall not be a criminal offense under section 506 or cause such person to be subject to the criminal penalties set forth in section 2319 of title 18. (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. (d) The privileges prescribed by subsections (a) and (b) [so as amended, should be "(a) and (c)"] do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it. Section 110. Limitations on exclusive rights: Exemption of certain performances and displays. Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made; (2) performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if-- (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and (B) the performance or display is directly related and of assistance to the teaching content of the transmission; and (C) the transmission is made primarily for-- (i) reception in classrooms or similar places normally to instruction, or (ii) reception by persons to whom the transmission is because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or (iii) reception by officers or employees of governmental bodies as a part of their official duties or employment; (3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work in the course of services at a place of worship or other religious assembly; (4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if-- (A) there is no direct or indirect admission charge; or (B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions; (i) the notice shall be in writing and signed by the copyright owner or such owner's duly authorized agent; and (ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and (iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation; (5) communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless-- (A) a direct charge is made to see or hear the transmission; or (B) the transmission thus received is further transmitted to the public; (6) performance of a nondramatic musical work by a governmental body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such body or organization; the exemption provided by this clause shall extend to any liability for copyright infringement that would otherwise be imposed on such body or organization, under doctrines of vicarious liability or related infringement, for a performance by a concessionaire, business establishment, or other person at such fair or exhibition, but shall not excuse any such person from liability for the performance; (7) performance of a nondramatic musical work by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work, and the performance is not transmitted beyond the place where the establishment is located and is within the immediate area where the sale is occurring; (8) performance of a nondramatic literary work, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, or deaf or other handicapped persons who are unable to hear the aural signals accompanying a transmission of visual signals, if the performance is made without any purpose of direct or indirect commercial advantages and its transmission is made through the facilities of: (i) a governmental body; or (ii) a noncommercial educational broadcast station (as defined in section 397 of title 47); or (iii) a radio subcarrier authorization (as defined in 47 CFR 73.293-73.295 and 73.593-73.595); or (iv) a cable system (as defined in section 111(f)); (9) performance on a single occasion of a dramatic literary work published at least ten years before the date of the performance, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, if the performance is made without any purpose of direct or indirect commercial advantage and its transmission is made through the facilities of a radio subcarrier authorization referred to in clause (8)(iii), Provided, That the provisions of this clause shall not be applicable to more than one performance of the same work by the same performers or under the auspices of the same organization. (10) notwithstanding paragraph 4 above, the following is not an infringement of copyright: performance of a nondramatic literary or musical work in the course of a social function which is organized and promoted by a nonprofit veterans' organization or a nonprofit fraternal organization to which the general public is not invited, but not including the invitees of the organizations, if the proceeds from the performance, after deducting the reasonable costs of producing the performance, are used exclusively for charitable purposes and not for financial gain. For purposes of this section the social functions of any college or university fraternity or sorority shall not be included unless the social function is held solely to raise funds for a specific charitable purpose. Section 111. Limitations on exclusive rights: Secondary transmissions. (a) Certain Secondary Transmissions Exempted.--The secondary transmission of a primary transmission embodying a performance or display of a work is not an infringement of copyright if-- (1) the secondary transmission is not made by a cable system, and consists entirely of the relaying, by the management of a hotel, apartment house, or similar establishment, or signals transmitted by a broadcast station licensed by the Federal Communications Commission, within the local service area of such station, to the private lodgings of guests or residents of such establishment, and no direct charge is made to see or hear the secondary transmission; or (2) the secondary transmission is made solely for the purpose and under the conditions specified by clause (2) of section 110; or (3) the secondary transmission is made by any carrier who has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission, and whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others: Provided, That the provisions of this clause extend only to the activities of said carrier with respect to secondary transmissions and do not exempt from liability the activities of others with respect to their own primary or secondary transmissions; or (4) the secondary transmission is not made by a cable system but is made by a governmental body, or other nonprofit organization, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service. (b) Secondary Transmission of Primary Transmission to Controlled Group.--Notwithstanding the provisions of subsections (a) and (c), the secondary transmission to the public of a primary transmission embodying a performance or display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, if the primary transmission is not made for reception by the public at large but is controlled and limited to reception by particular members of the public; Provided, however, That such secondary transmission is not actionable as an act of infringement if-- (1) the primary transmission is made by a broadcast station licensed by the Federal Communication; and (2) the carriage of the signals comprising the secondary transmission is required under the rules, regulations, or authorizations of the Federal Communications Commission; and (3) the signal of the primary transmitter is not altered or changed in any way by the secondary transmitter. (c) Secondary Transmissions by Cable Systems-- (1) Subject to the provisions of clauses (2), (3), and (4) of this subsection, secondary transmissions to the public by a cable system of a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico and embodying a performance or display of a work shall be subject to compulsory licensing upon compliance with the requirements of subsection (d) where the carriage of the signals comprising the secondary transmission is permissible under the rules, regulations, or authorizations of the Federal Communications Commission. (2) Notwithstanding the provisions of clause (1) of this subsection, the willful or repeated secondary transmission to the public by a cable system of a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico and embodying a performance or display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, in the following cases: (A) where the carriage of the signals comprising the secondary transmission is not permissible under the rules, regulations, or authorizations of the Federal Communications Commission; or (B) where the cable system has not recorded the notice specified by subsection (d) and deposited the statement of account and royalty fee required by subsection (d). (3) Notwithstanding the provisions of clause (1) of this subsection and subject to the provisions of subsection (e) of this section, the secondary transmission to the public by a cable system of a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico and embodying a performance or display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if the content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcements transmitted by the primary transmitter during, or immediately before or after, the transmission of such program, is in any way willfully altered by the cable system through changes, deletions, or additions, except for the alteration, deletion, or substitution of commercial advertising market research: *Provided*, That the research company has obtained the prior consent of the advertiser who has purchased the original commercial advertisement, the television station broadcasting that commercial advertisement, and the cable system performing the secondary transmissions: *And provided further*, That such commercial alteration, deletion, or substitution is not performed for the purpose of deriving income from the sale of that commercial time. (4) Notwithstanding the provisions of clause (1) of this subsection, the secondary transmission to the public by a cable system of a primary transmission made by a broadcast station licensed by an appropriate governmental authority of Canada or Mexico and embodying a performance or display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and section 509, if (A) with respect to Canadian signals, the community of the cable system is located more than 150 miles for the United States-Canadian border and is also located south of the forty-second parallel of latitude, or (B) with respect to Mexican signals, the secondary transmission is made by a cable system which received the primary transmission by means other than direct interception of a free space radio wave emitted by such broadcast television station, unless prior to April 15, 1976, such cable system was actually carrying, or was specifically authorized to carry, the signal of such foreign station on the system pursuant to the rules, regulations, or authorizations of the Federal Communications Commission. (d) Compulsory License for Secondary Transmissions by Cable Systems-- (1) For any secondary transmission to be subject to compulsory licensing under subsection (c), the cable system shall, at least one month before the date of the commencement of operations of the cable system or within one hundred and eighty days after the enactment of this Act, whichever is later, and thereafter within thirty days after each occasion on which the ownership or control or the signal carriage complement of the cable system changes, record in the Copyright Office a notice including a statement of identity and address of the person who owns or operates the secondary transmission service or has power to exercise primary control over it, together with the name and location of the primary transmitter or primary transmitters whose signals are regularly carried by the cable system, and thereafter, from time to time, such further information as the Register of Copyrights, after consultation with the Copyright Royalty Tribunal (if and when the Tribunal has been constituted), shall prescribe by regulation to carry out the purpose of this clause. (2) A cable system whose secondary transmissions have been subject to compulsory licensing under subsection (c) shall, on a semiannual basis, deposit with the Register of Copyrights, in accordance with requirements that the Register shall, after consultation with the Copyright Royalty Tribunal (if and when the Tribunal has been constituted), prescribe by regulation-- (A) a statement of account, covering the six months next preceding, specifying the number of channels on which the cable system made secondary transmissions to its subscribers, the names and locations of all primary transmitters whose transmissions to its subscribers, the names and locations of all primary transmitters whose transmissions were further transmitted by the cable system, the total number of subscribers, the gross amounts paid to the cable system for the basic service of providing secondary transmissions of primary broadcast transmitters, and such other data as the Register of Copyrights may, after consultation with the Copyright Royalty Tribunal (if and when the Tribunal has been constituted), from time to time prescribe by regulation. Such statement shall also include a special statement of account covering any nonnetwork television programming that was carried by the cable system in whole or in part beyond the local service area of the primary transmitter, under rules, regulations, or authorizations of the Federal Communications Commission permitting the substitution or addition of signals under certain circumstances, together with logs showing the times, dates, stations, and programs involved in such substituted or added carriage; and (B) except in the case of a cable system whose royalty is specified in subclause (C) or (D), a total royalty fee for the period covered by the statement, computed on the basis of specified percentages of the gross receipts from subscribers to the cable service during said period for the basic service of providing secondary transmissions of primary broadcast transmitters, as follows: (i) 0.675 of 1 per centum of such gross receipts for the privilege of further transmitting any nonnetwork programing of a primary transmitter in whole or in part beyond the local service area of such primary transmitter, such amount to be applied against the fee, if any, payable pursuant to paragraphs (ii) through (iv); (ii) 0.675 of 1 per centum of such gross receipts for the first distant signal equivalent; (iii) 0.425 of 1 per centum of such gross receipts for each of the second, third, and fourth distant signal equivalents; (iv) 0.2 of 1 per centum of such gross receipts for the fifth distant signal equivalent and each additional distant signal equivalent thereafter; and in computing the amounts payable under paragraph (ii) through (iv), above, any fraction of a distant signal equivalent shall be computed at its fractional value and, in the case of any cable system located partly within and partly without the local service area of a primary transmitter, gross receipts shall be limited to those gross receipts derived from subscribers located without the local service area of such primary transmitter; and (C) if the actual gross receipts paid by subscribers to a cable system for the period covered by the statement for the basic service of providing secondary transmissions of primary broadcast transmitters total $80,000 or less, gross receipts of the cable system for the purpose of this subclause shall be computed by subtracting from such actual gross receipts the amount by which $80,000 exceeds such actual gross receipts, except that in no case shall a cable system's gross receipts be reduced to less that $3,000. The royalty fee payable under this subclause shall be 0.5 of 1 per centum, regardless of the number of distant signal equivalents, if any; and (D) if the actual gross receipts paid by subscribers to a cable system for the period covered by the statement, for the basic service of providing secondary transmissions of primary broadcast transmitters, are more than $80,000 but less than $160,000, the royalty fee payable under this subclause shall be (i) 0.5 of 1 per centum of any gross receipts up to $80,000; and (ii) 1 per centum of any gross receipts in excess of $80,000 but less than $160,000, regardless of the number of distant signal equivalents, if any. (3) The Register of Copyrights shall receive all fees deposited under this section and, after deducting the reasonable costs incurred by the Copyright Office under this section, shall deposit the balance in the Treasury of the United States, in such manner as the Secretary of the Treasury directs. All funds held by the Secretary of the Treasury shall be invested in interest-bearing United States securities for later distribution with interest by the Copyright Royalty Tribunal as provided by this title. The Register shall submit to the Copyright royalty Tribunal, on a semiannual basis, a compilation of all statements of account covering the relevant six-month period provided by clause (2) of this subsection. (4) The royalty fees thus deposited shall, in accordance with the procedures provided by clause (5), be distributed to those among the following copyright owners who claim that their works were the subject of secondary transmissions by cable systems during the relevant semiannual period: (A) any such owner whose work was included in a secondary transmission made by a cable system of a nonnetwork television program in whole or in part beyond the local service area of the primary transmitter; and (B) any such owner whose work was included in a secondary transmission identified in a special statement of account deposited under clause (2)(A); and (C) any such owner whose work was included in nonnetwork programing consisting exclusively of aural signals carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programs. (5) The royalty fees thus deposited shall be distributed in accordance with the following procedures: (A) During the month of July in each year, every person claiming to be entitled to compulsory license fees for secondary transmissions shall file a claim with the Copyright Royalty Tribunal, in accordance with requirements that the Tribunal shall prescribe by regulation. Notwithstanding any provisions of the antitrust laws, for purposes of this clause any claimants may agree among themselves as to the proportionate division of compulsory licensing fees among them, may lump their claims together and file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf. (B) After the first day of August of each year, the Copyright Royalty Tribunal shall determine whether there exists a controversy concerning the distribution of royalty fees. If the Tribunal determines that no such controversy exists, it shall, after deducting its reasonable administrative costs under this section, distribute such fees to the copyright owners entitled, or to their designated agents. If the Tribunal finds the existence of a controversy, it shall, pursuant to chapter 8 of this title, conduct a proceeding to determine the distribution of royalty fees. (C) During the pendency of any proceeding under this subsection, the Copyright Royalty Tribunal shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall have discretion to proceed to distribute any amounts that are not in controversy. (e) Nonsimultaneous Secondary Transmissions by Cable Systems.-- (1) Notwithstanding those provisions of the second paragraph of subsection (f) relating to nonsimultaneous secondary transmissions by a cable system, any such transmissions are actionable as an act of infringement under section 501, and are fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, unless-- (A) the program on the videotape is transmitted no more than one time to the cable system's subscribers; and (B) the copyrighted program, episode, or motion picture videotape, including the commercials contained within such program, episode, or picture, is transmitted without deletion or editing; and (C) an owner or officer of the cable system (i) prevents the duplication of the videotape while in the possession of the system, (ii) prevents unauthorized duplication while in the possession of the facility making the videotape for the system if the system owns or controls the facility, or takes reasonable precautions to prevent such duplication if it does not own or control the facility, (iii) takes adequate precautions to prevent duplication while the tape is being transported, and (iv) subject to clause (2), erases or destroys, or causes the erasure or destruction of, the videotape; and (D) within forty-five days after the end of each calendar quarter, an owner or officer of the cable system executes an affidavit attesting (i) to the steps and precautions taken to prevent duplication of the videotape, and (ii) subject to clause (2), to the erasure or destruction of all videotapes made or used during such quarter; and (E) such owner or officer places or causes each such affidavit, and affidavits received pursuant to clause (2) (C), to be placed in a file, open to public inspection, at such system's main office in the community where the transmission is made or in the nearest community where such system maintains an office; and (F) the nonsimultaneous transmission is one that the cable system would be authorized to transmit under the rules, regulations, and authorizations of the Federal Communications Commission in effect at the time of the nonsimultaneous transmission if the transmission had been made simultaneously, except that this subclause shall not apply to inadvertent or accidental transmissions. (2) If a cable system transfers to any person a videotape of a program nonsimultaneously transmitted by it, such transfer is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, except that, pursuant to a written, nonprofit contract providing for the equitable sharing of the costs of such videotape and its transfer, a videotape nonsimultaneously transmitted by it, in accordance with clause (1), may be transferred by one cable system in Alaska to another system in Alaska, by one cable system in Hawaii permitted to make such nonsimultaneous transmissions to another such cable system in Hawaii, or by one cable system in Guam, the Northern Mariana Islands, or the Trust Territory of the Pacific Islands, to another cable system in any of those three territories, if-- (A) each such contract is available for public inspection in the offices of the cable systems involved, and a copy of such contract is filed, within thirty days after such contract is entered into, with the Copyright Office (which Office shall make each such contract available for public inspection); and (B) the cable system to which the videotape is transferred complies with clause (1)(A), (B), (C)(i), (iii), and (iv), and (D) through (F); and (C) such system provides a copy of the affidavit required to be made in accordance with clause (1)(D) to each cable system making a previous nonsimultaneous transmission of the same videotape. (3) This subsection shall not be construed to supersede the exclusivity protection provisions of any existing agreement, or any such agreement hereafter entered into, between a cable system and a television broadcast station in the area in which the cable system is located, or a network with which such station is affiliated. (4) As used in this subsection, the term "videotape," and each of its variant forms, means the reproduction of the images and sounds of a program or programs broadcast station licensed by the Federal Communications Commission, regardless of the nature of the material objects, such as tapes or films, in which the reproduction is embodied. (f) Definitions.--As used in this section, the following terms and their variant forms mean the following: A "primary transmission" is a transmission made to the public by the transmitting facility whose signals are being received and further transmitted by the secondary transmission service, regardless of where or when the performance or display was first transmitted. A "secondary transmission" is the further transmitting of a primary transmission simultaneously with the primary transmission, or nonsimultaneously with the primary transmission if by a "cable system" not located in whole or in part within the boundary of the forty-eight contiguous States, Hawaii, or Puerto Rico: Provided, however, That a nonsimultaneous further transmission by a cable system located in Hawaii of a primary transmission shall be deemed to be a secondary transmission if the carriage of the television broadcast signal comprising such further transmission is permissible under the rules, regulations, or authorizations of the Federal Communications Commission. A "cable system" is a facility, located in any State, Territory, Trust Territory, or Possession, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmission of such signals or programs by wires, cables, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(2), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system. The "local service area of a primary transmitter" in the case of a television broadcast station, comprises the area in which such station is entitled to insist upon its signal being retransmitted by a cable system pursuant to the rules, regulation, and authorizations of the Federal Communications Commission in effect on April 15, 1976, or in the case of a television broadcast station licensed by an appropriate governmental authority of Canada or Mexico, the area in which it would be entitled to insist upon its signal being retransmitted if it were a television broadcast station subject to such rules, regulations, and authorizations. The "local service area of a primary transmitter," in the case of a radio broadcast station, comprises the primary service area of such station pursuant to the rules and regulations of the Federal Communications Commission. "In the case of a low power television station, as defined by the rules and regulations of the Federal Communications Commission, the 'local service area of a primary transmitter' comprises the area within 35 miles of the transmitter site, except that in the case of such a station located in a standard metropolitan statistical area which has one of the 50 largest populations of all standard metropolitan statistical areas (based on the 1980 decennial census of population taken by the Secretary of Commerce), the number of miles shall be 20 miles." A "distant signal equivalent" is the value assigned to the secondary transmission of any nonnetwork television programing carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programing. It is computed by assigning a value of one to each independent station and a value of one-quarter to each network station and noncommercial educational station for the nonnetwork programing so carried pursuant to the rules, regulations, and authorizations of the Federal Communications Commission. The foregoing values for independent, network, and noncommercial educational stations are subject, however, to the following exceptions and limitations. Where the rules and regulations of the Federal Communications Commission require a cable system to omit the further transmission of a particular program and such rules and regulations also permit the substitution of another program embodying a performance or display of a work in place of the omitted transmission, or where such rules and regulations in effect on the date of enactment of this Act permit a cable system, at its election, to effect such deletion and substitution of a non-live program or to carry additional programs not transmitted by primary transmitters within whose local service area the cable system is located, no value shall be assigned for the substituted or additional program; where the rules, regulations, or authorizations of the Federal Communications Commission in effect on the date of enactment of this Act permit a cable system, at its election, to omit the further transmission of a particular program and such rules, regulations, or authorizations also permit the substitution of another program embodying a performance or display of a work in place of the omitted transmission, the value assigned for the substituted or additional program shall be, in the case of a live program, the value of one full distant signal equivalent multiplied by a fraction that has as its numerator the number of days in the year in which such substitution occurs and as its denominator the number of days in the year. In the case of a station carried pursuant to the late-night or specialty programing rules of the Federal Communications Commission, or a station carried on a part-time basis where full-time carriage is not possible because the cable system lacks the activated channel capacity to retransmit on a full-time basis all signals which it is authorized to carry, the values for independent, network, and noncommercial educational stations set forth above, as the case may be, shall be multiplied by a fraction which is equal to the ratio of the broadcast hours of such station carried by the cable system to the total broadcast hours of the station. A "network station" is a television broadcast station that is owned or operated by, or affiliated with, one or more of the television networks in the United States providing nationwide transmissions, and that transmits a substantial part of the programing supplied by such networks for a substantial part of that station's typical broadcast day. An "independent station" is a commercial television broadcast station other than a network station. A "noncommercial educational system" is a television station that is a noncommercial educational broadcast station as defined in section 397 of title 47. Section 112. Limitations on exclusive rights: Ephemeral recordings. (a) Notwithstanding the provisions of section 106, and except in the case of a motion picture or other audiovisual work, it is not an infringement of copyright for a transmitting organization entitled to transmit to the public a performance or display of a work, under a license or transfer of the copyright or under the limitations on exclusive rights in sound recordings specified by section 114(a), to make no more than one copy or phonorecord of a particular transmission program embodying the performance or display, if-- (1) the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and (2) the copy or phonorecord is used solely for the transmitting organization's own transmissions within its local service area, or for purposes of archival preservation or security; and (3) unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the transmission program was first transmitted to the public. (b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance or display of a work, under section 110(2) or under the limitations on exclusive rights in sound recordings specified by section 114(a), to make no more than thirty copies or phonorecords of a particular transmission program embodying the performance or display, if-- (1) no further copies or phonorecords are reproduced from the copies or phonorecords made under this clause; and (2) except for one copy or phonorecord that may be preserved exclusively for archival purposes, the copies or phonorecords are destroyed within seven years from the date the transmission program was first transmitted to the public. (c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization to make for distribution no more than one copy or phonorecord, for each transmitting organization specified in clause (2) of this subsection, of a particular transmission program embodying a performance of a nondramatic musical work of a religious nature, or of a sound recording of such a musical work, if-- (1) there is no direct or indirect charge for making or distributing any such copies or phonorecords; and (2) none of such copies or phonorecords is used for any performance other than a single transmission to the public by a transmitting organization entitled to transmit to the public a performance of the work under a license or transfer of the copyright; and (3) except for one copy or phonorecord that may be preserved exclusively for archival purposes, the copies or phonorecords are all destroyed within one year from the date the transmission program was first transmitted to the public. (d) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance of a work under section 110(8) to make more than ten copies or phonorecords embodying the performance, or to permit the use of any such copy or phonorecord by any governmental body or nonprofit organization entitled to transmit a performance of a work under section 110(8), if-- (1) any such copy or phonorecord is retained and used solely by the organization that made it, or by a governmental body or nonprofit organization entitled to transmit a performance of a work under section 110(8), and no further copies or phonorecords are reproduced from it; and (2) any such copy or phonorecord is used solely for transmissions authorized under section 110(8), or for purposes or archival preservation or security; and (3) the governmental body or nonprofit organization permitting any use of any such copy or phonorecord by any governmental body or nonprofit organization under this subsection does not make any charge for such use. (e) The transmission program embodied in a copy or phonorecord made under this section is not subject to protection as derivative work under this title except with the express consent of the owners of copyright in the preexisting works employed in the program. Section 113. Scope of exclusive rights in pictorial, graphic, and sculptural work. (a) Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 includes the right to reproduce the work in or on any kind of article, whether useful or otherwise. (b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title. (c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports. Section 114. Scope of exclusive rights in sound recordings. (a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (2), and (3) of section 106, and do not include any right of performance under section 106(4). (b) The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords, or of copies of motion pictures and other audiovisual works, that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. The exclusive rights of the owner of copyright in a sound recording under clauses (1), (2), and (3) of section 106 do not apply to sound recordings included in educational television and radio programs (as defined in section 397 of title 47) distributed or transmitted by or through public broadcasting entities (as defined by section 118(g): Provided, That copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public. (c) This section does not limit or impair the exclusive right to perform publicly, by means of a phonorecord, any of the works specified by section 106(4). (d) On January 3, 1978, the Register of Copyrights, after consulting with representatives of owners of copyrighted materials, representatives of the broadcasting, recording, motion picture, entertainment industries, and arts organizations, representatives of organized labor and performers of copyrighted materials, shall submit to the Congress a report setting forth recommendations as to whether this section should be amended to provide for performers and copyright owners of copyrighted material any performance rights in such material. The report should describe the status of such rights in foreign countries, the views of major interested parties, and specific legislative or other recommendations, if any. Section 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords. In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section. (a) Availability and Scope of Compulsory License.-- (1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person may, by complying with the provisions of this section, obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use. A person may obtain a compulsory license for use of the work in the making of phonorecords duplicating a sound recording fixed by another, unless: (i) such sound recording was fixed lawfully; and (ii) the making of the phonorecords was authorized by the owner of copyright in the sound recording or, if the sound recording was fixed before February 15, 1972, by any person who fixed the sound recording pursuant to an express license from the owner of the copyright in the musical work or pursuant to a valid compulsory license for use of such work in a sound recording. (2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner. (b) Notice of Intention to Obtain Compulsory License.-- (1) Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after making and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner. If the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. (2) Failure to serve or file the notice required by clause (1) forecloses the possibility of a compulsory license and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509. (c) Royalty Payable Under Compulsory Licence-- (1) To be entitled to receive royalties under a compulsory license, the copyright owner must be identified in the registration or other public records of the Copyright Office. The owner is entitled to royalties for phonorecords made and distributed after being so identified, but is not entitled to recover for any phonorecords previously made and distributed. (2) Except as provided by clause (1), the royalty under a compulsory license shall be payable for every phonorecord made and distributed in accordance with the license. For this purpose, a phonorecord is considered "distributed" if the person exercising the compulsory license has voluntarily and permanently parted with its possession. With respect to each work embodied in the phonorecord, the royalty shall be either two and three-fourths cents, or one-half of one cent per minute of playing time or fraction thereof, which amount is larger. (3) A compulsory license under this section includes the right of the maker of a phonorecord of a nondramatic musical work under subsection (a)(1) to distribute or authorize distribution of such phonorecord by rental, lease, or lending (or by acts or practices in the nature of rental, lease, or lending). In addition to any royalty payable under clause (2) and chapter 8 of this title, a royalty shall be payable by the compulsory licensee for every act of distribution of a phonorecord by or in the nature of rental, lease, or lending, by or under the authority of the compulsory licensee. With respect to each nondramatic musical work embodied in the phonorecord, the royalty shall be a proportion of the revenue received by the compulsory licensee from every such act of distribution of the phonorecord under this clause equal to the proportion of the revenue received by the compulsory licensee from distribution of the phonorecord under clause (2) that is payable by a compulsory licensee under that clause and under chapter 8. The Register of Copyrights shall issue regulations to carry out the purpose of this clause. (4) Royalty payments shall be made on or before the twentieth day of each month and shall include all royalties for the month next preceding. Each monthly payment shall be made under oath and shall comply with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall also prescribe regulations under which detailed cumulative annual statements of account, certified by a certified public accountant, shall be filed for every compulsory license under this section. The regulations covering both the monthly and the annual statements of account shall prescribe the form, content, and manner of certification with respect to the number of records made and the number of records distributed. (5) If the copyright owner does not receive the monthly payment and the monthly and annual statements of account when due, the owner may give written notice to the licensee that, unless the default is remedied within thirty days from the date of the notice, the compulsory license will be automatically terminated. Such termination renders either the making or the distribution, or both, of all phonorecords for which the royalty has not been paid, actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509. Section 116. Scope of exclusive rights in nondramatic musical works: Public performances by means of coin-operated phonorecord players. (a) Limitation on Exclusive Right.--In the case of a nondramatic musical work embodied in a phonorecord, the exclusive right under clause (4) of section 106 to perform the work publicly by means of a coin-operated phonorecord player is limited as follows: (1) The proprietor of the establishment in which the public performance takes place is not liable for infringement with respect to such public performance unless-- (A) such proprietor is the operator of the phonorecord player; or (B) such proprietor refuses or fails, within one month after receipt by registered or certified mail of a request, at a time during which the certificate required by clause (1)(C) of subsection (b) is not affixed to the phonorecord player, by the copyright owner, to make full disclosure, by registered or certified mail, of the identity of the operator of the operator of the phonorecord player. (2) The operator of the coin-operated phonorecord player may obtain a compulsory license to perform the work publicly on that phonorecord player by filing the application, affixing the certificate, and paying the royalties provided by subsection (b). (b) Recordation of Coin-Operated Phonorecord Player, Affixation of Certificate, and Royalty Payable under Compulsory License.--Any operator who wishes to obtain a compulsory license for the public performance of works on a coin-operated phonorecord player shall fulfill the following requirements: (A) Before or within one month after such performances are made available on a particular phonorecord player, and during the month of January in each succeeding year that such performances are made available on that particular phonorecord player, the operator shall file in the Copyright Office, in accordance with requirements that the Register of Copyrights, after consultation with the Copyright Royalty Tribunal (if and when the Tribunal has been constituted), shall prescribe by regulation, an application containing the name and address of the operator of the phonorecord player and the manufacturer and serial number or other explicit identification of the phonorecord player, and deposit with the Register of Copyrights a royalty fee for the current calendar year of $8 for that particular phonorecord player. If such performances are made available on a particular phonorecord player for the first time after July 1 of any year, the royalty fee to be deposited for the remainder of that year shall be $4. (B) Within twenty days of receipt of an application and a royalty fee pursuant to subclause (A), the Register of Copyrights shall issue to the applicant a certificate for the phonorecord player. (C) On or before March 1 of the year in which the certificate prescribed by subclause (B) of this clause is issued, or within ten days after the date of issue of the certificate, the operator shall affix to the particular phonorecord player, in a position where it can be readily examined by the public, the certificate, issued by the Register of Copyrights under subclause (B) of the latest application made by such operator under subclause (A) of this clause with respect to that phonorecord player. (2) Failure to file the application, to affix the certificate, or to pay royalty required by clause (1) of this subsection renders the public performance actionable as an act of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509. (c) Distribution of Royalties--. (1) The Register of Copyrights shall receive all fees deposited under this section and, after deducting the reasonable costs incurred by the Copyright Office under this section, shall deposit the balance in the Treasury of the United States, in such manner as the Secretary of the Treasury directs. All funds held by the Secretary of the Treasury shall be invested in interest-bearing United States securities for later distribution with interest by the Copyright Royalty Tribunal as provided by this title. The Register shall submit to the Copyright Royalty Tribunal, on an annual bases, a detailed statement of account covering all fees received for the relevant period provided by subsection (b). (2) During the month of January in each year, every person claiming to be entitled to compulsory license fees under this section for performances during the preceding twelve-month period shall file a claim with the Copyright Royalty Tribunal, in accordance with requirements that the Tribunal shall prescribe by regulation. Such claim shall include an agreement to accept as final, except as provided in section 810 of this title, the determination of the Copyright Royalty Tribunal in any controversy concerning the distribution of royalty fees deposited under subclause (A) of subsection (b)(1) of this section to which the claimant is a party. Notwithstanding any provisions of the antitrust laws, for purposes of this subsection any claimants may agree among themselves as to the proportionate division of compulsory licensing fees among them, may lump their claims together and file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf. (3) After the first day of October of each year, the Copyright Royalty Tribunal shall determine whether there exists a controversy concerning the distribution of royalty fees deposited under subclause (A) of subsection (b)(1). If the Tribunal determines that no such controversy exists, it shall, after deducting its reasonable administrative costs under this section, distribute such fees to the copyright owners entitled, or to their designated agents. If it finds that such a controversy exists, it shall, pursuant to chapter 8 of this title, conduct a proceeding to determine the distribution of royalty fees. (4) The fees to be distributed shall be divided as follows: (A) to every copyright owner not affiliated with a performing rights society, the pro rata share of the fees to be distributed to which such copyright owner proves entitlement. (B) to the performing rights societies, the remainder of the fees to be distributed in such pro rata shares as they shall by agreement stipulate among themselves, or, if they fail to agree, the pro rate share to which such performing rights societies prove entitlement. (C) during the pendency of any proceeding under this section, the Copyright Royalty Tribunal shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall have discretion to proceed to distribute any amounts that are not in controversy. (5) The Copyright Royalty Tribunal shall promulgate regulations under which persons who can reasonably be expected to have claims may, during the year in which performances take place, without expense to or harassment of operators or proprietors of establishments in which phonorecord players are located, have such access to such establishments and to the phonorecord players located therein and such opportunity to obtain information with respect thereto as may be reasonably necessary to determine, by sampling procedures or otherwise, the proportion of contribution of the musical works of each such person to the earnings of the phonorecord players for which fees shall have been deposited. Any person who alleges that he or she has been denied the access permitted under the regulations prescribed by the Copyright Royalty Tribunal may bring an action in the United States District Court for the District of Columbia for the cancellation of the compulsory license of the phonorecord player to which such access has been denied, and the court shall have the power to declare the compulsory license thereof invalid from the date of issue thereof. (d) Criminal Penalties.--Any person who knowingly makes a false representation of a material fact in an application filed under clause (1)(A)of subsection (b), or who knowingly alters a certificate issued under clause (1)(B) of subsection (b) or knowingly affixes such certificate to a phonorecord player other than the one it covers, shall be fined not more than $2,500. (e) Definitions.--As used in this section, the following terms and their variant forms mean the following: (1) A "coin-operated phonorecord player" is a machine or device that-- (A) is employed solely for the performance of non-dramatic musical works by means of phonorecords upon being activated by insertion of coins, currency, tokens, or other monetary units or their equivalent; (B) is located in an establishment making no direct or indirect charge for admission; (C) is accompanied by a list of titles of all the musical works available for performance on it, which list is affixed to the phonorecord player or posted in the establishment in a prominent position where it can be readily examined by the public; and (D) affords a choice of works available for performance and permits the choice to be made by the patrons of the establishment in which it is located. (2) An "operator" is any person who, alone or jointly with others: (A) owns a coin-operated phonorecord player; or (B) has the power to make a coin-operated phonorecord player available for placement in an establishment for purposes of public performance; or (C) has the power to exercise primary control over the selection of the musical works made available for public performance on a coin-operated phonorecord player. (3) A "performing rights society" is an association or corporation that licenses the public performance of nondramatic musical works on behalf of the copyright owners, such as the American Society of Composers, Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc. Section 117. Limitations on exclusive rights: Computer programs. Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner. Section 118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting. (a) The exclusive rights provided by section 106 shall, with respect to the works specified by subsection (b) and the activities specified by subsection (d), be subject to the conditions and limitations prescribed by this section. (b) Not later than thirty days after the Copyright Royalty Tribunal has been constituted in accordance with section 802, the Chairman of the Tribunal shall cause notice to be published in the Federal Register of the initiation of proceedings for the purpose of determining reasonable terms and rates of royalty payments for the activities specified by subsection (d) with respect to published nondramatic musical works and published pictorial, graphic, and sculptural works during a period beginning as provided in clause (3) of this subsection and ending on December 31, 1982. Copyright owners and public broadcasting entities shall negotiate and agree upon the terms and rates of royalty payments and the proportionate division of fees paid among various copyright owners, and may designate common agents to negotiate, agree to, pay, or receive payments. (1) Any owner of copyright in a work specified in this subsection or any public broadcasting entity may, within one hundred and twenty days after publication of the notice specified in this subsection, submit to the Copyright Royalty Tribunal proposed licenses covering such activities with respect to such works. The Copyright Royalty Tribunal shall proceed on the basis of the proposals submitted to it as well as any other relevant information. The Copyright Royalty Tribunal shall permit any interested party to submit information relevant to such proceedings. (2) License agreements voluntarily negotiated at any time between one or more copyright owners and one or more public broadcasting entities shall be given effect in lieu of any determination by the Tribunal: Provided, That copies of such agreements are filed in the Copyright Office within thirty days of execution in accordance with regulations that the Register of Copyrights shall prescribe. (3) Within six months, but not earlier than one hundred and twenty days, from the date of publication of the notice specified in this subsection the Copyright Royalty Tribunal shall make a determination and publish in the Federal Register a schedule of rates and terms which, subject to clause (2) of this subsection, shall be binding on all owners of copyright in works specified by this subsection and public broadcasting entities, regardless of whether or not such copyright owners and public broadcasting entities have submitted proposals to the Tribunal. In establishing such rates and terms the Copyright Royalty Tribunal may consider the rates for comparable circumstances under voluntary license agreements negotiated as provided in clause (2) of this subsection. The Copyright Royalty Tribunal shall also establish requirements by which copyright owners may receive reasonable notice of the use of their works under this section, and under which records of such use shall be kept by public broadcasting entities. (4) With respect to the period beginning on the effective date of this title and ending on the date of publication of such rates and terms, this title shall not afford to owners of copyright or public broadcasting entities any greater or lesser rights with respect to the activities specified in subsection (d) as applied to works specified in this subsection than those afforded under the law in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title. (c) The initial procedure specified in subsection (b) shall be repeated and concluded between June 30 and December 31, 1982, and at five-year intervals thereafter, in accordance with regulations that the Copyright Royalty Tribunal shall prescribe (d) Subject to the transitional provisions of subsection (b)(4), and to the terms of any voluntary license agreements that have been negotiated as provided by subsection (b)(2), a public broadcasting entity may, upon compliance with the provisions of this section, including the rates and terms established by the Copyright Royalty Tribunal under subsection (b)(3), engage in the following activities with respect to published nondramatic musical works and published pictorial, graphic, and sculptural works: (1) performance or display of a work by or in the course of a transmission made by a noncommercial educational broadcast station referred to in subsection (g); and (2) production of a transmission program, reproduction of copies or phonorecords, where such production, reproduction, or distribution is made by a nonprofit institution or organization solely for the purpose of transmission specified in clause (1); and (3) the making of reproductions by a governmental body or a nonprofit institution of a transmission program simultaneously with its transmission as specified in clause (1), and the performance or display of the contents of such program under the conditions specified by clause (1) of section 110, but only if the reproductions are used for performances or displays for a period of no more than seven days from the date of the transmission specified in clause (1), and are destroyed before or at the end of such period. No person supplying, in accordance with clause (2), a reproduction of a transmission program to governmental bodies or nonprofit institutions under this clause shall have any liability as a result of failure of such body or institution to destroy such reproduction: Provided, That it shall have notified such body or institution of the requirement for such destruction pursuant to this clause: And provided further, That if such body or institution itself fails to destroy such reproduction it shall be deemed to have infringed. (e) Except as expressly provided in this subsection, this section shall have no applicability to works other than those specified in subsection (b). (1) Owners of copyright in nondramatic literary works and public broadcasting entities may, during the course of voluntary negotiations, agree among themselves, respectively, as to the terms and rates of royalty payments without liability under the antitrust laws. Any such terms and rates of royalty payments shall be effective upon filing in the Copyright Office, in accordance with regulations that the Register of Copyrights shall prescribe. (2) On January 3, 1980, the Register of Copyrights, after consulting with authors and other owners of copyright in nondramatic literary works and their representatives, and with public broadcasting entities and their representatives, shall submit to the Congress a report setting forth the extent to which voluntary licensing arrangements have been reached with respect to the use of nondramatic literary works by such broadcast stations. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted. (f) Nothing in this section shall be construed to permit, beyond the limits of fair use as provided by section 107, the unauthorized dramatization of a nondramatic musical work, the production of a transmission program drawn to any substantial extent from a published compilation of pictorial, graphic, or sculptural works, or the unauthorized use of any portion of an audiovisual work. (g) As used in this section, the term "public broadcasting entity" means a noncommercial educational broadcast station as defined in section 397 of title 47 and any nonprofit institution or organization engaged in the activities described in clause (2) of subsection (d). CHAPTER 2--COPYRIGHT OWNERSHIP AND TRANSFER. Analysis Sec. 201. Ownership of copyright. 202. Ownership of copyright as distinct from ownership of material object. 203. Termination of transfers and licenses granted by the author. 204. Execution of transfers of copyright ownership. 205. Recordation of transfers and other documents. Section 201. Ownership of copyright. (a) Initial ownership.--Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work. (b) Works Made for Hire.--In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. (c) Contributions to Collective Works.--Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. (d) Transfer of Ownership.-- (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. (e) Involuntary Transfer.--When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be give effect under this title except as provided under Title 11. Section 202. Ownership of copyright as distinct from ownership of material object. Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object. Section 203. Termination of transfers and licenses granted by the author. (a) Conditions for Termination.--In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than be will, is subject to termination under the following conditions: (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's termination interest. In the case of a grant executed by two or more authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's interest. (2) Where an author is dead, his or her termination interest is owned, and may be exercised, by his widow or her widower and his or her children or grandchildren as follows: (A) the widow or widower owns the author's entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author's interest; (B) the author's surviving children, and the surviving children of any dead child of the author, own the author's entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author's interest is divided among them; (C) the rights of the author's children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author's children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them. (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier. (4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee's successor in title. (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. (B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant. (b) Effect of Termination.--Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, or other persons owning termination interests under clauses (1) and (2) of subsection (a), including those owners who did not join in signing the notice of termination under clause (4) of subsection (a), but with the following limitations: (1) A derivative work prepared under authority of the grant become its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. (2) The future rights that will revert upon termination of the grant before vested on the date the notice of termination has been served as provided by clause (4) of subsection (a). The rights vest in the author, authors, and other persons named in, and in the proportionate shares provided by, clauses (1) and (2) of subsection (a). (3) Subject to the provisions of clause (4) of this subsection, a further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under clause (2) of this subsection, as are required to terminate the grant under clauses (1) and (2) of subsection (a). Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under clause (2) of this subsection, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person's legal representatives, legatees, or heirs at law represent him or her for purposes of this clause. (4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee's successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a). (5) Termination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws. (6) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by this title. Section 204. Execution of transfers of copyright ownership. (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. (b) A certificate of acknowledgement is not required for the validity of a transfer, but is prima facie evidence of the execution of the transfer if-- (1) in the case of a transfer executed in the United States, the certificate is issued by a person authorized to administer oaths within the United States; or (2) in the case of a transfer executed in a foreign country, the certificate is issued by a diplomatic or consular officer of the United States, or by a person authorized to administer oaths whose authority is proved by a certificate of such an officer. Section 205. Recordation of transfers and other documents. (a) Conditions for Recordation.--Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. (b) Certificate of Recordation.--The register of Copyrights shall, upon receipt of a document as provided by subsection (a) and of the fee provided by section 708, record the document and return it with a certificate of recordation. (c) Recordation as Constructive Notice.--Recordation of a document in the Copyright Office gives all persons constructive notice of the facts stated in the recorded document, but only if-- (1) the document, or material attached to it, specifically identifies the work to which it pertains so that, after the document is indexed by the Register of Copyrights, it would be revealed by a reasonable search under the title or registration number of the work; and (2) registration has been made for the work. (d) Recordation as Prerequisite to Infringement Suit.--No person claiming by virtue of a transfer to be the owner of copyright or of any exclusive right under a copyright is entitled to institute an infringement action under this title until the instrument of transfer under which such person claims has been recorded in the Copyright Office, but suit may be instituted after such recordation on a cause of action that arose before recordation. (e) Priority Between Conflicting Transfers.--As between two conflicting transfers, the one executed first prevails if it is recorded, in the manner required to give constructive notice under subsection (c), within one month after its execution in the United States, or at any time before recordation in such manner of the later transfer. Otherwise the later transfer prevails if recorded first in such manner, and if taken in good faith, for valuable consideration or on the basis of a binding promise to pay royalties, and without notice of the earlier transfer. (f) Priority Between Conflicting Transfer of Ownership and Nonexclusive License.--A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed or such owner's duly authorized agent, and if-- (1) the license was taken before execution of the transfer; or (2) the license was taken in good faith before recordation of the transfer and without notice of it. CHAPTER 3--DURATION OF COPYRIGHT. Analysis. Sec. 301. Preemption with respect to other laws. 302. Duration of copyright: Works created on or after January 1, 1978. 303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978. 304. Duration of copyright: Subsisting copyrights. 305. Duration of copyright: Terminal date. Section 301. Preemption with respect to other laws. (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes or any state with respect to-- (1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or (2) any cause of action arising from undertakings commenced before January 1, 1978; or (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106. (c) With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2047. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2047. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2047. (d) Nothing in this title annuls or limits any rights or remedies under any other Federal statute. Section 302. Duration of copyright: Works created on or after January 1, 1978. (a) In General.--Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and fifty years after the author's death. (b) Joint Works.--In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and fifty years after such last surviving author's death. (c) Anonymous Works, Pseudonymous Works, and Works Made for Hire.--In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of seventy-five years for the year of its first publication, or a term of one hundred years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person's interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. (d) Records Relating to Death of Authors.--Any person having an interest in a copyright may at any time record in the Copyright Office a statement of the date of death of the author of the copyrighted work, or a statement that the author is still living on a particular date. The statement shall identify the person filing it, the nature of that person's interest, and the source of the information recorded, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall maintain current records of information relating to the death of authors of copyrighted works, based on such recorded statements and, to the extent the Register considers practicable, on data contained in any of the records of the Copyright Office or in other reference sources. (e) Presumption as to Author's Death.--After a period of seventy-five years from the year of first publication of a work, or a period of one hundred years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than fifty years before, is entitled to the benefit of a presumption that the author has been dead for at least fifty years. Reliance in food faith upon this presumption shall be a complete defense to any action for infringement under this title. Section 303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978. Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2027. Section 304. Duration of copyright: Subsisting copyrights. (a) Copyrights in Their First Term on January 1, 1978.--Any copyright, the first term of which is subsisting on January 1, 1978, shall endure for twenty-eight years from the date it was originally secured: Provided, That in the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of forty-seven years when application for such renewal and extension shall have been made to the Copyright Office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his or her next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of forty-seven years when application for such renewal and extension shall have been made to the Copyright Office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall terminate at the expiration of twenty-eight years from the date copyright was originally secured. (b) Copyrights in Their Renewal Term or Registered for Renewal Before January 1, 1978.--The duration of any copyright, the renewal term of which is subsisting at any time between December 31, 1976, and December 31, 1977, inclusive, or for which renewal registration is made between December 31, 1976, and December 31, 1977, inclusive, is extended to endure for a term of seventy-five years from the date copyright was originally secured. (c) Termination of Transfers and Licenses Covering Extended Renewal Term.--In the case of any copyright subsisting in either its first or renewal term on January 1, 1978, other than a copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated by the second proviso of subsection (a) of this section, otherwise than by will, is subject to termination under the following conditions: (1) In the case of a grant executed by a person or persons other than the author, termination of the grant may be effected by the surviving person or persons who executed it. In the case of a grant executed by one or more of the authors of the work, termination of the grant may be effected, to the extent of a particular author's share in the ownership of the renewal copyright, by the author who executed it, or, if such author is dead, the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's termination interest. (2) Where an author is dead, his or her termination interest is owned, and may be exercised, by his widow or her widower and his or her children or grandchildren as follows: (A) the widow or widower owns the author's entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author's interest; (B) the author's surviving children, and the surviving children of any dead child of the author, own the author's entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author's interest is divided among them; (C) the rights of the author's children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author's children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them. (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later. (4) The termination shall be effected by serving an advance notice in writing upon the grantee or the grantee's successor in title. In the case of a grant executed by a person or persons other than the author, the notice shall be signed by all of those entitled to terminate the grant under clause (1) of this subsection, or by their duly authorized agents. In the case of a grant executed by one or more of the authors of the work, the notice as to any one author's share shall be signed by that author or his or her duly authorized agent or, if that author is dead, by the number and proportion of the owners of his or her termination interest required under clauses (1) and (2) of this subsection, or by their duly authorized agents. (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. (B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant. (6) In the case of a grant executed by a person or persons other than the author, all rights under this title that were covered by the terminated grant revert, upon the effective date of termination, to all of those entitled to terminate the grant under clause (1) of this subsection. In the case of a grant executed by one or more of the authors of the work, all of a particular author's rights under this title that were covered by the terminated grant revert, upon the effective date of termination, to that author or, if that author is dead, to the persons owning his or her termination interest under clause (2) of this subsection, including those owners who did not join in signing the notice of termination under clause (4) of this subsection. In all cases the reversion of rights is subject to the following limitations: (A) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. (B) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of this subsection. (C) Where the author's rights revert to two or more persons under clause (2) of this subsection, they shall vest in those persons in the proportionate shares provided by that clause. In such a case, and subject to the provisions of subclause (D) of this clause, a further grant, or agreement to make a further grant, of a particular author's share with respect to any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under this clause, as are required to terminate the grant under clause (2) of this subsection. Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under this subclause, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person's legal representatives, legatees, or heirs at law represent him or her for purposes of this subclause. (D) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the author or any of the persons provided by the first sentence of clause (6) of this subsection, or between the persons provided by subclause (C) of this clause, and the original grantee or such grantee's successor in title, after the notice of termination has been served as provided by clause (4) of this subsection. (E) Termination of a grant under this subsection affects only those rights covered by the grant that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws. (F) Unless and until termination is effected under this subsection, the grant, if it does not provide otherwise, continues in effect for the remainder of the extended renewal term. Section 305. Duration of copyright: Terminal date. All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire. CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION. Analysis. Sec. 401. Notice of copyright: Visually perceptible copies. 402. Notice of copyright: Phonorecords of sound recordings. 403. Notice of copyright: Publications incorporating United States Government works. 404. Notice of copyright: Contributions to collective works. 405. Notice of copyright: Omission of notice. 406. Notice of copyright: Error in name or date. 407. Deposit of copies or phonorecords for Library of Congress. 408. Copyright registration in general. 409. Application for copyright registration. 410. Registration of claim and issuance of certificate. 411. Registration as prerequisite to infringement suit. 412. Registration as prerequisite to certain remedies for infringement. Section 401. Notice of copyright: Visually perceptible copies. (a) General Requirement.--Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. (b) Form of Notice.--The notice appearing on the copies shall consist of the following three elements: (1) the symbol of a small letter "c" inside of a circle, or the word "Copyright," or the abbreviation "Copr."; and (2) the year of first publication of the work; in the case of compilations or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards postcards, stationery, jewelry, dolls, toys, or any useful articles; and (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. (c) Position of Notice.--The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive. Section 402. Notice of copyright: Phonorecords of sound recordings. (a) General Requirement.--Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed phonorecords of the sound recording. (b) Form of Notice.--The notice appearing on the phonorecords shall consist of the following three elements: (1) the symbol of a small letter "p" inside of a circle; and (2) the year of first publication of the sound recording; and (3) the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice. (c) Position of Notice.--The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright. Section 403. Notice of copyright: Publications incorporating United States Government works. Whenever a work is published in copies or phonorecords consisting preponderantly of one or more works of the United States Government, the notice of copyright provided by sections 401 or 402 shall also include a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title. Section 404. Notice of copyright: Contributions to collective works. (a) A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 401 through 403. However, a single notice applicable to the collective work as a whole is sufficient to satisfy the requirements of sections 401 through 403 with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the ownership of copyright in the contributions and whether or not they have been previously published. (b) Where the person named in a single notice applicable to a collective work as a whole is not the owner of copyright in a separate contribution that does not bear its own notice, the case is governed by the provisions of section 406(a). Section 405. Notice of copyright: Omission of notice. (a) Effect of Omission on Copyright.--The omission of the copyright notice prescribed by sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if-- (1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; to (2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or (3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization of the public distribution of copies or phonorecords, they bear the prescribed notice. (b) Effect of Omission on Innocent Infringers.--Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer's profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition or [sic] permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. (c) Removal of Notice.--Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords. Section 406. Notice of copyright: Error in name or date. (a) Error in Name.--Where the person named in the copyright notice on copies or phonorecords publicly distributed by authority of the copyright owner is not the owner of copyright, the validity and ownership of the copyright are not affected. In such a case, however, any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein, unless before the undertaking was begun-- (1) registration for the work had been made in the name of the owner of copyright; or (2) a document executed by the person named in the notice and showing the ownership of the copyright had been recorded. The person named in the notice is liable to account to the copyright owner for all receipts from transfers or licenses purportedly made under the copyright by the person named in the notice. (b) Error in Date.--When the year date in the notice on copies or phonorecords distributed by authority of the copyright owner is earlier than the year in which publication first occurred, any period computed from the year of first publication first occurred, the work is considered to have been published without any notice and is governed by the provisions of section 405. (c) Omission of Name or Date.--Where copies or phonorecords publicly distributed by authority of the copyright owner contain no name or no date that could reasonably be considered a part of the notice, the work is considered to have been published without any notice and is governed by the provisions of section 405. Section 407. Deposit of copies or phonorecords for Library of Congress. (a) Except as provided by subsection (c), and subject to the provisions of subsection (e), the owner of copyright or of the exclusive right of publication in a work published with notice of copyright in the United States shall deposit, within three months after the date of such publication-- (1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords. Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection. (b) The required copies or phonorecords shall be deposited in the Copyright Office for the use or disposition of the Library of Congress. The Register of Copyrights shall, when requested by the depositor and upon payment of the fee prescribed by section 708, issue a receipt for the deposit. (c) The Register of Copyrights may be regulation exempt any categories of material from the deposit requirements of this section, or require deposit of only one copy or phonorecord with respect to any categories. Such regulations shall provide either for complete exemption from the deposit requirements of this section, or for alternative forms of deposit aimed at providing a satisfactory archival record of a work without imposing practical or financial hardships on the depositor, where the individual author is the owner of copyright in a pictorial, graphic, or sculptural work and (i) less than five copies of the work have been published, or (ii) the work has been published in a limited edition consisting of numbered copies the monetary value of which would make the mandatory deposit of two copies of the best edition of the work burdensome, unfair, or unreasonable. (d) At any time after publication of a work as provided by subsection (a), the Register of Copyrights may make written demand for the required deposit of any of the persons obligated to make the deposit under subsection (a). Unless deposit is made within three months after the demand is received, the person or persons on whom the demand was made are liable-- (1) to a fine of not more than $250 for each work; and (2) to pay into a specially designated fund in the Library of Congress the total retail price of the copies or phonorecords demanded, or, if no retail price has been fixed, the reasonable cost of the Library of Congress of acquiring them; and (3) to pay a fine of $2,500, in addition to any fine or liability imposed under clauses (1) and (2), if such person willfully or repeatedly fails or refuses to comply with such a demand. (e) With respect to transmission programs that have been fixed and transmitted to the public in the United States but have not been published, the Register of Copyrights shall, after consulting with the Librarian of Congress and other interested organizations and officials, establish regulation governing the acquisition, through deposit or otherwise, of copies or phonorecords of such programs for the collections of the Library of Congress. (1) The Librarian of Congress shall be permitted, under the standards and conditions set forth in such regulations to make a fixation of a transmission program directly from a transmission to the public, and to reproduce one copy or phonorecord from such fixation for archival purposes. (2) Such regulations shall also provide standards and procedures by which the Register of Copyrights may make written demand, upon the owner of the right of transmission in the United States, for the deposit of a copy or phonorecord of a specific transmission program. Such deposit may, at the option of the owner of the right of transmission in the United States, be accomplished by gift, by loan for purposes of reproduction, or by sale at a price not to exceed the cost of reproducing and supplying the copy or phonorecord. The regulations established under this clause shall provide reasonable periods of not less than three months for compliance with a demand, and shall allow for extensions of such periods and adjustments in the scope of the demand or the methods for fulfilling it, as reasonably warranted by the circumstances. Willful failure or refusal to comply with the conditions prescribed by such regulations shall subject the owner to the right of transmission in the United States to liability for an amount, not to exceed the cost of reproducing and supplying the copy or phonorecord in question, to be paid into a specially designated fund in the Library of Congress. (3) Nothing in this subsection shall be construed to require the making or retention, for purposes of deposit, of any copy or phonorecord of an unpublished transmission program, the transmission of which occurs before the receipt of a specific written demand as provided by clause (2). (4) No activity undertaken in compliance with regulations prescribed under clauses (1) or (2) of this subsection shall result in liability if intended solely to assist in the acquisition of copies or phonorecords under this subsection. Section 408. Copyright registration in general. (a) Registration Permissive.--At any time during the subsistence of copyright in any published or unpublished work, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Subject to the provisions of section 405(a), such registration is not a condition of copyright protection. (b) Deposit for Copyright Registration.--Except as provided by subsection (c) The material deposited for registration shall include-- (1) in the case of an unpublished work, one complete copy or phonorecord; (2) in the case of the published work, two complete copies or phonorecords of the best edition; (3) in the case of a work first published outside the United States, one complete copy or phonorecord as so published; (4) in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work. Copies or phonorecords deposited for the Library of Congress under section 407 may be used to satisfy the deposit provisions of this section, if they are accompanied by the prescribed application and fee, and by any additional identifying material that the Register may, by regulation, require. The Register shall also prescribe regulations establishing requirements under which copies or phonorecords acquired for the Library of Congress under subsection (e) of section 407, otherwise than by deposit, may be used to satisfy the deposit provisions of this section. (c) Administrative Classification and Optional Deposit.-- (1) The Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be deposited in the various classes specified. The regulations may require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works. This administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title. (2) Without prejudice to the general authority provided under clause (1), the Register of Copyrights shall establish regulations specifically permitting a single registration for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, within a twelve-month period, on the basis of a single deposit, application, and registration fee, under all of the following conditions-- (A) if each of the works as first published bore a separate copyright notice, and the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner was the same in each notice; and (B) if the deposit consists of one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribution was first published; and (C) if the application identifies each work separately, including the periodical containing it and its date of first publication. (3) As an alternative to separate renewal registrations under subsection (a) of section 304, a single renewal registration may be made for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, upon the filing of a single application and fee, under all of the following conditions: (A) the renewal claimant or claimants, and the basis of claim or claims under section 304(a), is the same for each of the works; and (B) the works were all copyrighted upon their first publication, either through separate copyright notice and registration or by virtue of a general copyright notice in the periodical issue as a whole; and (C) the renewal application and fee are received not more than twenty-eight or less than twenty-seven years after the thirty-first day of December of the calendar year in which all of the works were first published; and (D) the renewal application identifies each work separately, including the periodical containing it and its date of first publication (d) Corrections and Amplifications.--The register may also establish, by regulation, formal procedures for the filing of an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration. Such application shall be accompanied by the fee provided by section 708, and shall clearly identify the registration to be corrected or amplified. The information contained in a supplementary registration augments but does not supersede that contained in the earlier registration. (e) Published Edition of Previously Registered Work.--Registration for the first published edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version. Section 409. Application for copyright registration. The application for copyright registration shall be made on a form prescribed by the Register of Copyrights and shall include-- (1) the name and address of the copyright claimant; (2) in the case of a work other than an anonymous or pseudonymous work, the name and nationality or domicile of the author or authors, and, if one or more of the authors is dead, the dates of their deaths; (3) if the work is anonymous or pseudonymous, the nationality or domicile of the author or authors; (4) in the case of a work made for hire, a statement to this effect; (5) if the copyright claimant is not the author, a brief statement of how the claimant obtained ownership of the copyright; (6) the title of the work, together with any previous or alternative titles under which the work can be identified; (7) the year in which creation of the work was completed; (8) if the work has been published, the date and nation of its first publication; (9) in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered; (10) in the case of a published work containing material of which copies are required by section 601 to be manufactured in the United States, the names of the persons or organizations who performed the processes specified by subsection (c) of section 601 with respect to that material, and the places where those processes were performed; and (11) any other information regarded by the Register of Copyrights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright. Section 410. Registration of claim and issuance of certificate. (a) When, after examination, the Register of Copyrights determines that, in accordance with the provisions of this title, the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met, the Register shall register the claim and issue to the applicant a certificate of registration under the seal of the Copyright Office. The certificate shall contain the information given in the application, together with the number and effective date of the registration. (b) In any case in which the Register of Copyrights determines that, in accordance with the provisions of this title, the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal. (c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court. (d) The effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office. Section 411. Registration as prerequisite to infringement suit. (a) Subject to the provisions of subsection (b), no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue. (b) In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copyright owner-- (1) serves notice upon the infringer, not less than ten or more than thirty days before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and, (2) makes registration for the work within three months after its first transmission. Section 412. Registration as prerequisite to certain remedies for infringement. In any action under this title, other than an action instituted under section 411(b), no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for-- (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. CHAPTER 5--COPYRIGHT INFRINGEMENT AND REMEDIES. Analysis. Sec. 501. Infringement of copyright. 502. Remedies for infringement: Injunctions. 503. Remedies for infringement: Impounding and disposition of infringing articles. 504. Remedies for infringement: Damages and profits. 505. Remedies for infringement: Costs and attorney's fees. 506. Criminal offenses. 507. Limitations on actions. 508. Notification of filing and determination of actions. 509. Seizure forfeiture. 510. Remedies for alteration of programing by cable systems. Section 501. Infringement of copyright. (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by section 106 through 118, or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of sections 205(d) and 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joiner, and shall permit the intervention, of any person having or claiming an interest in the copyright. (c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station. (d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been altered by the cable system; and (ii) any broadcast station within whose local service area the secondary transmission occurs. Section 502. Remedies for infringement: Injunctions. (a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright. (b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court a certified copy of all the papers in the case on file in such clerk's office. Section 503. Remedies for infringement: Impounding and disposition of infringing articles. (a) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright's owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negative, or other articles by means of which such copies or phonorecords may be reproduced. (b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. Section 504. Remedies for infringement: Damages and profits. (a) In General.--Except as otherwise provided by this title, an infringer of copyright is liable for either-- (1) the copyright owner's actual damages and any additional profits of infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). (b) Actual Damages and Profits.--The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. (c) Statutory Damages.-- (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $250 or more than $10,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $50,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the it [sic] its discretion may reduce the award of statutory damages to a sum of not less than $100. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work. Section 505. Remedies for infringement: Costs and attorney's fees. In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs. Section 506. Criminal offenses. (a) Criminal infringement.--Any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18. (b) Forfeiture and Destruction.--When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall, in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all infringing copies or phonorecords and all implements, devices, or equipment used in the manufacture of such infringing copies or phonorecords. (c) Fraudulent Copyright Notice.--Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500. (d) Fraudulent Removal of Copyright Notice.--Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500. Section 507. Limitations on actions. (a) Criminal Proceedings.--No criminal proceeding shall be maintained under the provisions of this title unless it is commenced within three years after the cause of action arose. (b) Civil Actions.--No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. Section 508. Notification of filing and determination of action. (a) Within one month after the filing of any action under this title, the clerks of the courts of the United States shall send written notification to the Register of Copyrights setting forth, as far as is shown by the papers filed in the court, the names and addresses of the parties and the title, author, and registration number of each work involved in the action. If any other copyrighted work is later included in the action by amendment, answer, or other pleading, the clerk shall also send a notification concerning it to the Register within one month after the pleading is filed. (b) Within one month after any final order or judgment is issued in the case, the clerk of the court shall notify the Register of it, sending with the notification a copy of the order or judgment together with the written opinion, if any, of the court. (c) Upon receiving the notifications specified in this section, the Register shall make them a part of the public records of the Copyright Office. Section 509. Seizure and forfeiture. (a) All copies or phonorecords manufactured, reproduced, distributed, sold or otherwise used, intended for use, or possessed with intent to use in violation of section 506(a), and all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced, and all electronic, mechanical, or other devises for manufacturing, reproducing, or assembling such copies or phonorecords may be seized and forfeited to the United States. (b) The applicable procedures relating to (i) the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violations of the customs laws contained in title 19, (ii) the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof, (iii) the remission or mitigation of such forfeiture, (iv) the compromise of claims, and (v) the award of compensation to informers in respect of such forfeitures, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions of this section; except that such duties as are imposed upon any officer or employee of the Treasury Department or any other person with respect to the seizure and forfeiture of vessels, vehicles, merchandise, and baggage under the provisions of the customs laws contained in title 19 shall be performed with respect seizure and forfeiture of all articles described in subsection (a) by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General. Section 510. Remedies for alteration of programing by cable systems. (a) In any action filed pursuant to section 111(c)(3), the following remedies shall be available; (1) Where an action is brought by a party identified in subsections (b) or (c) of section 501, the remedies provided by sections 502 through 505, and the remedy provided by subsection (b) of this section; and (2) When an action is brought by a party identified in subsection (d) of section 501, the remedies provided by sections 502 and 505, together with any actual damages suffered by such party as a result of the infringement, and the remedy provided by subsection (b) of this section. (b) In any action filed pursuant to section 111(c)(3), the court may decree that, for a period not to exceed thirty days, the cable system shall be deprived of the benefit of a compulsory license for one or more distant signals carried by such cable system. CHAPTER 6--MANUFACTURING REQUIREMENTS AND IMPORTATION. Analysis. Sec. 601. Manufacture, importation, and public distribution of certain copies. 602. Infringing importation of copies or phonorecords. 603. Importation prohibitions: Enforcement and disposition of excluded articles. Section 601. Manufacture, importation, and public distribution of certain copies. (a) Prior to July 1, 1986, and except as provided by subsection (b), the importation into or public distribution in the United States of copies of a work consisting preponderantly of nondramatic [sic] literary material that is in the English language and is protected under this title is prohibited unless the portions consisting of such material have been manufactured in the United States or Canada. (b) The provisions of subsection (a) do not apply-- (1) where on the date when importation is sought or public distribution in the United States is made, the author of any substantial part of such material is neither a national nor a domiciliary of the United States or, if such author is a national of the United States, he or she has been domiciled outside the United States for a continuous period of at least one year immediately preceding that date; in the case of a work made for hire, the exemption provided by this clause does not apply unless a substantial part of the work was prepared for an employer or other person who is not a national or domiciliary of the United States or a domestic corporation or enterprise; (2) where the United States Customs Service is presented with an import statement issued under the seal of the Copyright Office, in which case a total of no more than two thousand copies of any one such work shall be allowed entry; the import statement shall be issued upon request to the copyright owner or to a person designated by such owner at the time of registration for the work under section 408 or at any time thereafter; (3) where importation is sought under the authority or for the use, other than in schools, of the Government of the United States or of any State or political subdivision of a State; (4) where importation, for use and not for sale, is sought-- (A) by any person with respect to no more than one copy of any work at any one time; (B) by any person arriving from outside the United States, with respect to copies forming part of such person's personal baggage; or (C) by an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to copies intended to form a part of its library; (5) where the copies are reproduced in raised characters for the use of the blind; or (6) where, in addition to copies imported under clauses (3) and (4) of this subsection, no more than two thousand copies of any one such work, which have not been manufactured in the United States or Canada, are publicly distributed in the United States; or (7) where, on the date when importation is sought or public distribution in the United States is made-- (A) the author of any substantial part of such material is an individual and receives compensation for the transfer or license of the right to distribute the work in the United States; and (B) the first publication of the work has previously taken place outside the United States under a transfer or license granted by such author to a transferee or licensee who was not a national or domiciliary of the United States or domestic corporation or enterprise; and (C) there has been no publication of an authorized edition of the work of which the copies were manufactured in the United States; and (D) the copies were reproduced under a transfer or license granted by such author or by the transferee or licensee of the right of first publication as mentioned in subclause (B), and the transferee or the licensee of the right of reproduction was not a national or domiciliary of the United States or a domestic corporation or enterprise. (c) The requirement of this section that copies be manufactured in the United States or Canada is satisfied if-- (1) in the case where the copies are printed directly from type that has been set, or directly from plates made from such type, the setting of the type and the making of the plates have been performed in the United States or Canada; and (2) in the case where the making of plates by a lithographic or photoengraving process is a final or intermediate step preceding the printing of the copies, the making of the plates has been performed in the United States or Canada. (3) in any case, the printing or other final process of producing multiple copies and any binding of the copies have been performed in the United States or Canada. (d) Importation or public distribution of copies in violation of this section does not invalidate protection for a work under this title. However, in any civil action or criminal proceeding for infringement of the exclusive rights to produce and distribute copies of the work, the infringer has a complete defense with respect to all of the nondramatic literary material comprised in the work and any other parts of the work in which the exclusive rights to reproduce and distribute copies are owned by the same person who owns such exclusive rights in the nondramatic literary material, if the infringer proves-- (1) that copies of the work have been imported into or publicly distributed in the United States in violation of this section by or with the authority of the owner of such exclusive rights; and (2) that the infringing copies were manufactured in the United States or Canada in accordance with the provisions of subsection (c); and (3) that the infringement was commenced before the effective date of registration for an authorized edition of the work, the copies of which have been manufactured in the United States or Canada in accordance with the provisions of subsection (c). (e) In any action for infringement of the exclusive rights to reproduce and distribute copies of a work containing material required by this section to be manufactured in the United States or Canada, the copyright owner shall set forth in the complaint the names of the persons or organizations who performed the processes specified by subsection (c) with respect to that material, and the places where those processes were performed. Section 602. Infringing importation of copies or phonorecords. (a) Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies of phonorecords under section 406, actionable under section 501. This subsection does not apply to-- (1) importation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for purposes other than archival use; (2) importation, for the private use of the importer and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States with respect to copies or phonorecords forming part of such person's personal baggage; or (3) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity consisting of systematic reproduction or distribution, engaged in by such organization in violation of the provisions of section 108(g)(2). (b) In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were lawfully made, the United States Customs service has no authority to prevent their importation unless the provisions of section 601 are applicable. In either case, the Secretary of the Treasury is authorized to prescribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by the Customs Service of the importation of articles that appear to be copies of phonorecords of the work. Section 603. Importation prohibitions: Enforcement and disposition of excluded articles. (a) The Secretary of the Treasury and the United States Postal Service shall separately or jointly make regulations for the enforcement of the provisions of this title prohibiting importation. (b) These regulations may require, as a condition for the exclusion of articles under section 602-- (1) that the person seeking exclusion obtain a court order enjoining importation of the articles; or (2) that the person seeking exclusion furnish proof, of a specified nature and in accordance with prescribed procedures, that the copyright in which such person claims an interest is valid and that the importation would violate the prohibition in section 602; the person seeking exclusion may also be required to post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified. (c) Articles imported in violation of the importation prohibitions of this title are subject to seizure and forfeiture in the same manner as property imported in violation of the customs revenue laws. Forfeited articles shall be destroyed as directed by the Secretary of the Treasury of the court, as the case may be; however, the articles may be returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury that the importer had no reasonable grounds for believing that his or her acts constituted a violation of law. CHAPTER 7--COPYRIGHT OFFICE. Analysis. Sec. 701. The Copyright Office: General responsibilities and organization. 702. Copyright Office regulations. 703. Effective date of actions in Copyright Office. 704. Retention and disposition of articles deposited in Copyright Office. 705. Copyright Office records; Preparation, maintenance, public inspection, and searching. 706. Copies of Copyright Office records. 707. Copyright Office forms and publications. 708. Copyright Office fees. 709. Delay in delivery caused by disruption of postal or other services. 710. Reproduction for use of the blind and physically handicapped: Voluntary licensing forms and procedures. Section 701. The Copyright Office: General responsibilities and organization. (a) All administrative functions and duties under this title, except as otherwise specified, are the responsibility of the Register of Copyrights as director of the Copyright Office of the Library of Congress. The Register of Copyrights, together with the subordinate officers and employees of the Copyright Office, shall be appointed by the Librarian of Congress, and shall act under the Librarian's general direction and supervision. (b) The Register of Copyrights shall adopt a seal to be used on and after January 1, 1978, to authenticate all certified documents issued by the Copyright Office. (c) The Register of Copyrights shall make an annual report to the Librarian of Congress of the work and accomplishments of the Copyright Office during the previous fiscal year. The annual report of the Register of Copyrights shall be published separately and as a part of the annual report of the Librarian of Congress. (d) Except as provided by section 706(b) and the regulations issued thereunder, all actions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act of June 11, 1946, as amended (c. 324, 60 Stat. 237, title 5, United States Code, Chapter 5, Subchapter II and Chapter 7). Section 702. Copyright Office regulations. The Register of Copyrights is authorized to establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register under this title. All regulations established by the Register under this title are subject to the approval of the Librarian of Congress Section 703. Effective date of actions in Copyright Office. In any case in which time limits are prescribed under this title for the performance of an action in the Copyright Office, and in which the last day of the prescribed period falls on a Saturday, Sunday, holiday, or other nonbusiness day within the District of Columbia or the Federal Government, the action may be taken on the next succeeding business day, and is effective as of the date when the period expired. Section 704. Retention and disposition of articles deposited in Copyright Office. (a) Upon their deposit in the Copyright Office under section 407 and 408, all copies, phonorecords, and identifying material, including those deposited in connection with claims that have been refused registration, are the property of the United States Government. (b) In the case of published works, all copies, phonorecords, and identifying material deposited are available to the Library of Congress for its collections, or for exchange or transfer to any other library. In the case of unpublished works, the Library is entitled, under regulations that the Register of Copyrights shall prescribe, to select any deposits for its collections or for transfer to the National Archives of the United States or to a Federal records center, as defined in section 2901 of title 44. (c) The Register of Copyrights is authorized, for specific or general categories of works, to make a facsimile reproduction of all or any part of the material deposited under section 408, and to make such reproduction a part of the Copyright Office records of the registration, before transferring such material to the Library of Congress as provided by subsection (b), or before destroying or otherwise disposing of such material as provided by subsection (d). (d) Deposits not selected by the Library under subsection (b), or identifying portions or reproductions of them, shall be retained under the control of the Copyright Office, including retention in Government storage facilities, for the longest period considered practicable and desirable by the Register of Copyrights and the Librarian of Congress. After that period it is within the joint discretion of the Register and the Librarian to order their destruction or other disposition; but, in the case of unpublished works, no deposit shall be knowingly or intentionally destroyed or otherwise disposed of during its term of copyright unless a facsimile reproduction of the entire deposit has been made a part of the Copyright Office records as provided by subsection (c). (e) The depositor of copies, phonorecords, or identifying material under section 408, or the copyright owner of record, may request retention, under the control of the Copyright Office, of one or more of such articles for the full term of copyright in the work. The Register of Copyrights shall prescribe, by regulation, the conditions under which such requests are to be made and granted, and shall fix the fee to be charged under section 708(a)(11) if the request is granted. Section 705. Copyright Office records: Preparation, maintenance, public inspection, and searching. (a) The Register of Copyrights shall provide and keep in the Copyright Office records of all deposits, registrations, recordations, and other actions taken under this title, and shall prepare indexes of all such records. (b) Such records and indexes, as well as the articles deposited in connection with completed copyright registrations and retained under the control of the Copyright Office, shall be open to public inspection. (c) Upon request and payment of the fee specified by section 708, the Copyright Office shall make a search of its public records, indexes, and deposits, and shall furnish a report of the information they disclose with respect to any particular deposits, registrations, or recorded documents. Section 706. Copies of Copyright Office records. (a) Copies may be made of any public records or indexes of the Copyright Office; additional certificates of copyright registration and copies of any public records or indexes may be furnished upon request and payment of the fees specified by section 708. (b) Copies or reproductions of deposited articles retained under the control of the Copyright Office shall be authorized or furnished only under the conditions specified by the Copyright Office regulation. Section 707. Copyright Office forms and publication. (a) Catalog of Copyright Entries--The Register of Copyrights shall compile and publish at periodic intervals catalogs of all copyright registrations. These catalogs shall be divided into parts in accordance with the various classes of works, and the Register has discretion to determine, on the basis of practicability and usefulness, the form and frequency of publication of each particular part. (b) Other Publication--The Register shall furnish, free of charge upon request, application forms for copyright registration and general informational material in connection with the functions of the Copyright Office. The Register also has the authority to publish compilations of information, bibliographies, and other material he or she considers to be of value to the public. (c) Distribution of Publications.--All publications of the Copyright Office shall be furnished to depository libraries as specified under section 1905 of title 44, and, aside from those furnished free of charge, shall be offered for sale to the public at prices based on the cost of reproduction and distribution. Section 708. Copyright Office fees. (a) The following fees shall be paid to the Register of Copyrights: (1) on filing each application for registration of a copyright claim or a supplementary registration under section 408, including the issuance of a certificate of registration if registration is made, $10; (2) on filing each application for registration of a claim to renewal of a subsisting copyright in its first term under section 304(a), including the issuance of a certificate of registration if registration is made, $6; (3) for the issuance of a receipt for a deposit under section 407, $2; (4) for the recordation, as provided by section 205, of a transfer of copyright ownership or other document of six pages or less, covering no more than one title; $10; for each page over six and each title over one, 50 cents additional; (5) for the filing, under section 115(b), of a notice of intention to make phonorecords, $6; (6) for the recordation, under section 302(c), of a statement revealing the identity of an author of an anonymous or pseudonymous work, or for the recordation, under section 302(d), of a statement relating to the death of an author, $10 for a document of six pages or less, covering no more than one title; for each page over six and for each title over one, $1 additional; (7) for the issuance, under section 601, of an import statement, $3; (8) for the issuance, under section 706, of an additional certificate of registration, $4; (9) for the issuance of any other certification, $4; the Register of Copyrights has discretion, on the basis of their cost, to fix the fees for preparing copies of Copyright Office records, whether they are to be certified or not; (10) for the making and reporting of a search as provided by section 705, and for any related services, $10 for each hour or fraction of an hour consumed; (11) for any other special services requiring a substantial amount of time or expense, such fees as the Register of Copyrights may fix on the basis of the cost of providing the service. (b) The fees prescribed by or under this section are applicable to the United States Government and any of its agencies, employees, or officers, but the Register of Copyrights has discretion to waive the requirement of this subsection in occasional or isolated cases involving relatively small amounts. (c) All fees received under this section shall be deposited by the Register of Copyrights in the Treasury of the United States and shall be credited to the appropriation for necessary expenses of the Copyright Office. The Register may, in accordance with regulations that he or she shall prescribe, refund any sum paid by mistake or in excess of the fee required by this section. Section 709. Delay in delivery caused by disruption of postal or other services. In any case in which the Register of Copyrights determines, on the basis of such evidence as the Register may by regulation require, that a deposit, application, fee, or any other material to be delivered to the Copyright Office by a particular date, would have been received in the Copyright Office in due time except for a general disruption or suspension of postal or other transportation or communications services, the actual receipt of such material in the Copyright Office within one month after the date on which the Register determines that the disruption or suspension of such services has terminated, shall be considered timely. Section 710. Reproduction for use of the blind and physically handicapped: Voluntary licensing forms and procedures. The Register of Copyrights shall, after consultation with the Chief of the Division for the Blind and Physically Handicapped and other appropriate officials of the Library of Congress, establish by regulation standardized forms and procedures by which, at the time applications covering certain specified categories of nondramatic literary works are submitted for registration under section 408 of this title, the copyright owner may voluntarily grant to the Library of Congress a license to reproduce the copyrighted work by means of Braille or similar tactile symbols, or by fixation of a reading of the work in a phonorecord, or both, and to distribute the resulting copies or phonorecords solely for the use of the blind and physically handicapped and under limited conditions to be specified in the standardized forms. CHAPTER 8--COPYRIGHT ROYALTY TRIBUNAL. Analysis. Sec. 801. Copyright Royalty Tribunal: Establishment and purpose. 802. Membership of the Tribunal. 803. Procedures of the Tribunal. 804. Institution and conclusion of proceedings. 805. Staff of the Tribunal. 806. Administrative support of the Tribunal. 807. Deduction of costs of proceedings. 808. Reports. 809. Effective date of final determinations. 810. Judicial review. Section 801. Copyright Royalty Tribunal: Establishment and purpose. (a) There is hereby an independent Copyright Royalty Tribunal in the legislative branch. (b) Subject to the provisions of this chapter, the purposes of the Tribunal shall be-- (1) to make determinations concerning the adjustment of reasonable copyright royalty rates as provided in sections 115 and 116, and to make determinations as to reasonable terms and rates of royalty payments as provided in section 118. The rates applicable under sections 115 and 116 shall be calculated to achieve the following objectives. (A) To maximize the availability of creative works to the public; (B) To afford the copyright owner a fair return for his creative work and the copyright user a fair income under existing economic conditions; (C) To reflect the relative roles of the copyright owner and the copyright user in the product made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, risk, and contribution to the opening of new markets for creative expression and media for their communication; (D) To minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices. (2) to make determinations concerning the adjustment of copyright royalty rates in section 111 solely in accordance with the following provisions: (A) The rates established by section 111(d)(2)(B) may be adjusted to reflect (i) national monetary inflation or deflation or (ii) changes in the average rates charged cable subscribers for the basic service of providing secondary transmissions to maintain the real constant dollar level of the royalty fee per subscriber which existed as of the date of enactment of this Act: Provided, That if the average rates charged cable system subscribers for the basic service of providing secondary transmissions are changed so that the average rates exceed national monetary inflation, no change in the rates established by section 111(d)(2)(B) shall be permitted: And provided further, That no increase in the royalty fee shall be permitted based on any reduction in the average number of distant signal equivalents per subscriber. The Commission may consider all factors relating to the maintenance of such level of payments including, as an extenuating factor, whether the cable industry has been restrained by subscriber rate regulating authorities from increasing the rates for the basic service of providing secondary transmissions. (B) In the event that the rules and regulations of the Federal Communications Commission are amended at any time after April 15, 1976, to permit the carriage by cable systems of additional television broadcast signals beyond the local service area of the primary transmitters of such signals, the royalty rates established by section 111(d)(2)(B) may be adjusted to insure that the rates for the additional distant signal equivalents resulting from such carriage are reasonable in the light of the changes effected by the amendment to such rules and regulations. In determining the reasonableness of rates proposed following an amendment of Federal Communications Commission rules and regulations, the Copyright Royalty Tribunal shall consider, among other factors, the economic impact on copyright owners and users: Provided, That no adjustment in royalty rates shall be made under this subclause with respect to any distant signal equivalent or fraction thereof represented by (i) carriage of a signal of the same type (that is, independent, network, or noncommercial educational) substituted for such permitted signal, or (ii) a television broadcast signal first carried after April 15, 1976, pursuant to an individual waiver of the rules and regulations of the Federal Communications Commission, as such rules and regulations were in effect on April 14, 1976. (C) In the event of any change in the rules and regulations of the Federal Communications Commission with respect to syndicated and sports program exclusivity after April 15, 1976, the rates established by section 111(d)(2)(B) may be adjusted to assure that such rates are reasonable in light of the changes to such rules and regulations, but any such adjustment shall apply only to the affected television broadcast signals carried on those systems affected by the change. (D) The gross receipts limitations established by section 111(d)(2)(C) and (D) shall be adjusted to reflect national monetary inflation or deflation or changes in the average rates charged cable system subscribers for the basic service of providing secondary transmissions to maintain the real constant dollar value of the exemption provided by such section; and the royalty rate specified therein shall not be subject to adjustment; and (3) As soon as possible after the date of enactment of this Act, and no later than six months following such date, the President shall publish a notice announcing the initial appointments provided in section 802, and shall designate an order of seniority among the initially-appointed commissioners for purposes of section 802(b). Section 802. Membership of the Tribunal. (a) The Tribunal shall be composed of five commissioners appointed by the President with the advise and consent of the Senate for a term of seven years each; of the first five members appointed, three shall be designated to serve for seven years from the date of the notice specified in section 801(C), and two shall be designated to serve for five years from such date, respectively. Commissioners shall be compensated at the highest rate now or hereafter prescribe sic for grade 18 of the General Schedule pay rates (5 U.S.C. 5332). (b) Upon convening the commissioners shall elect a chairman from among the commissioners appointed for a full seven-year term. Such chairman shall serve for a term of one year. Thereafter, the most senior commissioner who has not previously served as chairman shall serve as chairman for a period of one year, except that, if all commissioners have served a full term as chairman, the most senior commissioner who has served the least number of terms as chairman shall be designated as chairman. (c) Any vacancy in the Tribunal shall not affect its powers and shall be filed, for the unexpired term of the appointment, in the same manner as the original appointment was made. Section 803. Procedures of the Tribunal. (a) The Tribunal shall adopt regulations, not inconsistent with law, governing procedure and methods of operation. Except as otherwise provided in this chapter, the Tribunal shall be subject to the provisions of the Administrative Procedure Act of June 11, 1946, as amended (c. 324, 60 Stat. 237, title 5, United States Code, chapter 5, subchapter II and chapter 7). Section 804. Institution and conclusion of proceedings. (a) With respect to proceedings under section 801(b)(1) concerning the investment of royalty rates as provided in sections 115 and 116, and with respect to proceedings under section 801(b)(2)(A) and (D)-- (1) on January 1, 1980, the Chairman of the Tribunal shall cause to be published in the Federal Register notice of commencement of proceedings under this chapter; and (2) during the calendar years specified in the following schedule, any owner or user of a copyrighted work whose royalty rates are specified by this title, or by a rate established by the Tribunal, may file a petition with the Tribunal declaring that the petitioner requests an adjustment of the rate. The Tribunal shall make a determination as to whether the applicant has a significant interest in the royalty rate in which an adjustment is requested. If the Tribunal determines that the petitioner has a significant interest, the Chairman shall cause notice of this determination, with the reasons therefor, to be published in the Federal Register, together with notice of commencement of proceedings under this chapter. (A) In proceedings under section 801(b)(2)(A) and (D), such petition may be filed during 1985 and in each subsequent fifth calendar year. (B) In proceedings under section 801(b)(1) concerning the adjustment of royalty rates as provided in section 115, such petition may be filed in 1987 and in each subsequent tenth calendar year. (C) In proceedings under section 801(b)(1) concerning the adjustment of royalty rates under section 116, such petition may be filed in 1990 and in each subsequent tenth calendar year. (b) With respect to proceedings under subclause (B) or (C) of section (_)(2), following an event described in either of those subsections, any ____ or user of a copyrighted work whose royalty rates are specified by section ____ by a rate established by the Tribunal, may, within twelve months, file a ___on with the Tribunal declaring that the petitioner requests an adjustment of the rate. In this event the Tribunal shall proceed as in subsection (a)(2), above. Any change in royalty rates made by the Tribunal pursuant to this subsection may be reconsidered in 1980, 1985, and each fifth calendar year thereafter, in accordance with the provisions in section 801(b)(2)(B) or (C), as the case may be. (c) With respect to proceedings under section 801(b)(1), concerning the determination of reasonable terms and rates of royalty payments as provided in section 118, the Tribunal shall proceed when and as provided by that section. (d) With respect to proceedings under section 801(b)(3), concerning the distribution of royalty fees in certain circumstances under sections 111 or 116, the Chairman of the Tribunal shall, upon determination by the Tribunal that a controversy exists concerning such distribution, cause to be published in the Federal Register notice of commencement of proceedings under this chapter. (e) All proceedings under this chapter shall be initiated without delay following publication of the notice specified in this section, and the Tribunal shall render its final decision in any such proceeding with one year from the date of such publication. Section 805. Staff of the Tribunal. (a) The Tribunal is authorized to appoint and fix the compensation of such employees as may be necessary to carry out the provisions of this chapter, and to prescribe their functions and duties. (b) The Tribunal may procure temporary and intermittent services to the same extent as is authorized by section 3109 of title 5. Section 806. Administrative support of the Tribunal. (a) The Library of Congress shall provide the Tribunal with necessary administrative services, including those related to budgeting, accounting, financial reporting, travel, personnel, and procurement. The Tribunal shall pay the Library for such services, either in advance or by reimbursement from the funds of the Tribunal, at amounts to be agreed upon between the Librarian and the Tribunal. (b) The Library of Congress is authorized to disburse funds for the Tribunal, under regulations prescribed jointly by the Librarian of Congress and the Tribunal and approved by the Comptroller General. Such regulations shall establish requirements and procedures under which every voucher certified for payment by the Library of Congress under this chapter shall be supported with a certification by a duly authorized officer or employee of the Tribunal, and shall prescribe the responsibilities and accountability of said officers and employees of the Tribunal with respect to such certifications. Section 807. Deduction of costs of proceedings. Before any funds are distributed pursuant to a final decision in a proceeding involving distribution of royalty fees, the Tribunal shall assess the reasonable costs of such proceeding. Section 808. Reports. In addition to its publication of the reports of all final determinations as provided in section 803(b), the Tribunal shall make an annual report to the President and the Congress concerning the Tribunal's work during the preceding fiscal year, including a detailed fiscal statement of account. Section 809. Effective date of final determinations. Any final determination by the Tribunal under this chapter shall become effective thirty days following its publication in the Federal Register as provided in section 803(b), unless prior to that time an appeal has been filed pursuant to section 810, to vacate, modify, or correct such determination, and notice of such appeal has been served on all parties who appeared before the Tribunal in the proceeding in question. Where the proceeding involves the distribution of royalty fees under sections 111 or 116, the Tribunal shall, upon the expiration of such thirty-day period, distribute any royalty fees not subject to an appeal filed pursuant to section 810. Section 810. Judicial review. Any final decision of the Tribunal in a proceeding under section 801(b) may be appealed to the United States Court of Appeals, within thirty days after its publication in the Federal Register by an aggrieved party. The judicial review of the decision shall be had, in accordance with chapter 7 of title 5, on the basis of the record before the Tribunal. No court shall have jurisdiction to review a final decision of the Tribunal except as provided in this section. 
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28197	----	file was produced from images generously made available by the Library of Congress.) Transcriber's Note This ebook retains the spelling and punctuation variations of the original text published in 1836. A few corrections have been made where inadvertent typographical errors were suspected. Details of these corrections can be found in a Transcriber's Note at the end of this text. THE TRIAL OF REUBEN CRANDALL, M. D. CHARGED WITH PUBLISHING AND CIRCULATING SEDITIOUS AND INCENDIARY PAPERS, &c. IN THE DISTRICT OF COLUMBIA, WITH THE INTENT OF EXCITING SERVILE INSURRECTION. CAREFULLY REPORTED, AND COMPILED FROM THE WRITTEN STATEMENTS OF THE COURT AND THE COUNSEL. BY A MEMBER OF THE BAR. WASHINGTON CITY. PRINTED FOR THE PROPRIETORS. 1836. Entered according to the act of Congress, in the year 1836, in the Clerk's office of the District of Columbia. NOTICE. THE TRIAL OF CRANDALL presents the first case of a man charged with endeavoring to excite insurrection among slaves and the free colored population that was ever brought before a judicial tribunal. It lasted ten days before the whole Court, and was as closely contested as any trial on record, by the counsel on both sides. Every point of law was fully and strenuously argued, and carefully considered by the Court; and where no statutes have been enacted, this case may be considered as settling the legal questions touching the rights of the slaveholding population, on the one hand, to protect themselves from foreign influence; and the circumstances, on the other hand, which may bring people from the nonslaveholding States into danger of the law, by having in their possession, showing, or circulating, papers and tracts which advocate the abolition of slavery in such a way as to excite slaves and free people of color to revolt and violate the existing laws and customs of the slaveholding States. No trial has ever occurred more important to travellers from the North, or to the domestic peace of the inhabitants of the Southern States. THE TRIAL OF REUBEN CRANDALL, M. D. ON A CHARGE OF CIRCULATING INCENDIARY PAPERS. UNITED STATES' CIRCUIT COURT, _District of Columbia, Friday, April 15th, 1836._ PRESENT: CRANCH, chief justice, THRUSTON and MORSELL, justices. F. S. KEY, district attorney, and J. M. CARLISLE, for the prosecution. R. S. COXE and J. H. BRADLEY, for the defence. John H. King, Nicholas Callan, James Kennedy, Walter Clarke, George Crandall, William Waters, Thomas Hyde, Thomas Fenwick, Samuel Lowe, George Simmes, Wesley Stevenson, and Jacob Gideon, jr., were empannelled and sworn as jurors to try the issue. This was an indictment charging, in five counts and in various forms, the offence under the common law of libels, of publishing malicious and wicked libels, with the intent to excite sedition and insurrection among the slaves and free colored people of this District. The three first counts only having been relied upon, and no evidence having been offered under the others, an abstract, omitting the mere formal part, will be sufficient to show the nature of the libels charged. 1st. The first count charged the defendant with publishing a libel, containing in one part thereof these words: "Then we are not to meddle with the subject of slavery in any manner; neither by appeals to the patriotism, by exhortation to humanity, by application of truth to the conscience. No; even to propose, in Congress, that the seat of our republican Government may be purified from this crying abomination, under penalty of a dissolution of the Union." And in another part thereof, in an article entitled "Reply to Mr. Gurley's letter, addressed to the Rev. R. R. Gurley, Secretary of the American Colonization Society, Washington city," signed by Arthur Tappan and others, the following words: "We will not insult your understanding, sir, with any labored attempt to prove to you that the descendants of African parents, born in this country, have as good a claim to a residence in it, as the descendants of English, German, Danish, Scotch, or Irish parents. You will not attempt to prove that every native colored person you meet in the streets, has not the same right to remain in this his native land, that you and we have. Assuming this as an incontrovertable truth, we hold it self-evident that they have as good right to deport us to Europe, under the pretext that there we shall be prosperous and happy, as we have to deport them to Africa on a similar plea." And in another part thereof, in the said reply, the following words: "In what language could the unrighteous principles of denying freedom to colored people in this country, (which amounts to the same thing as demanding the expulsion of those already free,) be more effectually and yet more plausibly inculcated than in those very words of Gen. Harper you have, with so much approbation, quoted to us." And in another part thereof, in the said reply, the following words: "Against this doctrine of suspending emancipation upon the contingency or condition of expatriation we feel bound to protest; because we believe that every man has a right to reside in his native country if he chooses, and that every man's native country is the country in which he was born--that no man's right to freedom is suspended upon, or taken away by his desire to remain in his native country--that to make a removal from one's own native country a _sine qua non_ of setting him free when held in involuntary bondage, is the climax of moral absurdity." And in another part thereof, in a certain other article, entitled "Three months' residence, or seven weeks on a sugar plantation, by Henry Whitby," containing the most shocking and disgusting details of cruel, inhuman, and immoral treatment of slaves by the owners and overseers, and attorneys or agents of proprietors, according to the tenor and effect following--that is to say: "On this and other occasions, I thought it my duty to acquaint the attorney with my observations and feelings in regard to the cruel floggings and severe treatment generally which I have witnessed at New Ground. He admitted the facts, but said that plantation work could not be carried on without the cart-whip. He moreover labored hard to convince me that the flogging did not injure the health of the negroes. I also told him of the exceeding immorality and licentiousness which I had witnessed; mentioning, in substance, the facts previously detailed. He replied that "that was a thing which they must wink at." If a man in manners so much the gentleman, and in other respects so estimable, was necessarily led to countenance or wink at the enormities I have feebly attempted to describe, what, I ask, is to be expected from its subordinate administrators who are continually exposed to the demoralizing influences of slavery? what, indeed, but the frightful wickedness and cruelty which are its actual fruits?"--in contempt of the laws, to the disturbance of the public peace, to the evil example of all others, and against the peace and government of the United States. 2d. The second count charges the publication of another libel, containing among other things, in one part thereof, the following words, viz: "Our plan of emancipation is simply this--to promulgate the doctrine of human rights in high places and low places, and all places where there are human beings--to whisper it in chimney corners, and to proclaim it from the house tops, yea, from the mountain tops--to pour it out like water from the pulpit and the press--to raise it up with all the force of the inner man from infancy to grey hairs--to give line upon line, precept upon precept, till it forms one of the foundation principles and parts indestructible of the public soul." And in another part thereof, the following, viz: "I (meaning the said Crandall) am not unaware that my remarks may be regarded by many as dangerous and exceptionable; that I may be regarded as a fanatic for quoting the language of eternal truth; and denounced as an incendiary for maintaining in the spirit, as well as the letter, the doctrines of American Independence. But if such are the consequences of a simple performance of duty, I shall not regard them. If my feeble appeal but reaches the hearts of any who are now slumbering in iniquity; if it shall have power given it to shake down one stone from that foul temple where the blood of human victims is offered to the moloch of slavery; if, under Providence, it can break one fetter from off the image of God, and enable one suffering African ------------To feel The weight of human misery less, and glide Ungroaning to the tomb-- I shall not have written in vain; my conscience will be satisfied. Far be it from me to cast new bitters in the gall and wormwood waters of sectional prejudice. No, I desire peace--the peace of universal love--of catholic sympathy--the peace of common interest--a common feeling--a common humanity. But so long as slavery is tolerated, no such peace can exist. Liberty and slavery cannot dwell in harmony together. There will be a perpetual war in the members of the political _Mezentius_--between the living and the dead. God and man have placed between them an everlasting barrier--an eternal separation. No matter under what law or compact their union is attempted, the ordination of Providence has forbidden it--and it cannot stand. Peace! there can be no peace between justice and oppression--between robbery and righteousness--truth and falsehood--freedom and slavery. The slaveholding States are not free. The name of Liberty is there, but the spirit is wanting. They do not partake of its invaluable blessings. "Wherever slavery exists to any considerable extent, with the exception of some recently settled portions of the country, and which have not yet felt, in a great degree, the baneful and deteriorating influence of slave labor--we hear, at this moment, the cry of suffering. We are told of grass-grown streets--of crumbling mansions--of beggared planters, and barren plantations--of fear from without--of terror within. The once fertile fields are wasted and tenantless: for the curse of slavery--the improvidence of that laborer whose hire has been kept back by fraud--has been there, poisoning the very earth, beyond the reviving influence of the early and the latter rain. A moral mildew mingles with, and blasts the economy of nature. It is as if the finger of the everlasting God had written upon the soil of the slaveholder the language of his displeasure. "Let then the slaveholding States consult their present interest by beginning, without delay, the work of emancipation. If they fear not, and mock at the fiery indignation of Him to whom vengeance belongeth, let temporal interest persuade them. They know, they must know, that the present state of things cannot long continue. Mind is the same every where, no matter what may be the complexion of the frame which it animates; there is a love of liberty which the scourge cannot eradicate. A hatred of oppression which centuries of degradation cannot extinguish. The slave will become conscious, sooner or later, of his strength--his physical superiority--and will exert it. His torch will be at the threshold, and his knife at the throat of the planter. Horrible and indiscriminate will be the vengeance. Where then will be the pride, the beauty, and the chivalry of the South. The smoke of her torment will rise upward, like a thick cloud, visible over the whole earth." 3d. The third count charged the defendant with publishing twelve other libels, in which are represented and exhibited "several disgusting prints and pictures of white men in the act of inflicting, with whips, cruel and inhuman beatings and stripes upon young and helpless and unresisting black children; and inflicting with other instruments, cruel and inhuman violence upon slaves, and in a manner not fit and proper to be seen and represented; calculated and intended to excite the good people of the United States in said county to violence against the holder of slaves in said county as aforesaid, and calculated and intended to excite the said slaves in said county, to violence and rebellion against their said masters in said county; in contempt of the laws, to the disturbance of the public peace, to the evil example of all others, and against the peace and government of the United States." All these counts contained averments that at the time of the publication of these libels, the citizens of the United States residing in the county of Washington, in the District of Columbia, were lawfully authorized to hold slaves as property, and many of them did so hold them--and that many free persons of color also reside in the District; and that the defendant, unlawfully, maliciously, and seditiously, contriving and intending to traduce, vilify, and bring into hatred and contempt, among the citizens of the United States, the laws and government of the United States in the county of Washington as duly established and in force, and to inflame and excite the people of the United States to resist and oppose and disregard the laws and Government aforesaid, and the rights of the proprietors of slaves in the said county, and to inflame and excite to violence, against the said proprietors of the said slaves, not only the ignorant and ill disposed among the free people of the United States and the free persons of color in the said county, but also the slaves; and to produce among the said slaves and free persons of color, insubordination, violence, and rebellion, and to stir up war and insurrection between the said slaves and their said masters, published the said libels, containing among other things divers false, malicious and seditious matters, of and concerning the laws and Government of the United States in the said District, and of and concerning the citizens of the United States holding slaves in the said District, and of and concerning the said slaves and free persons of color, and their labor, services, and treatment, and the state of slavery in the said District. The defendant pleaded not guilty. _The District Attorney_ opened the case for the Government. He said this was a serious and important charge of publishing inflammatory and seditious libels, which was always an indictable offence. In this particular case, situated as the population of the District is, it was peculiarly dangerous and atrocious. In point of law, it would be necessary to prove a publication; that the prisoner did in some way or other exhibit or circulate one or more of the libels; and with that view he should connect evidence that he was found with many similar libels of a most dangerous and inflammatory tendency, with the words "_read and circulate_" upon them, in writing which Crandall admitted to be his own handwriting; and that he gave different and contradictory accounts of how he came by them, and how they came here in his possession. Also, that similar libels were dropped into the post-office, and sent by nobody could tell whom, to almost every body in the District. After proving these facts, he said he should carry the libels before the jury, and let them judge whether the prisoner could have been here with any good motive, or have such a mass of obnoxious papers with any good purpose. _Mr. Coxe_ wished to state, at the outset, what he understood to be the law. The libels charged were not upon individuals, nor the Government, but were said to be designed to excite the whole community; and therefore publication or circulation with the intent charged, would be necessary to sustain the prosecution. Possession, however bad or dangerous the libels might be, was no crime; any man might have and keep the worst libels with entire innocence; and in this case, it would be no evidence of malicious or dangerous intent that he loaned or gave one to respectable individuals, who would not be injured and would not do any injury to others. _Henry King_ testified that about last June or July, he knew Crandall in Georgetown, where he came and took an office as a botanist, and followed that business. _Key_ handed him a pamphlet, and asked if he had seen any like it; stating, upon objection being made by Coxe, that his object was to show that Crandall gave the witness such a paper to read. _Coxe_ objected to the testimony, as furnishing no ground of inference that the act of publication by giving the paper to a respectable white free man, was intended to create excitement, or was the result of a malicious intent. _Key_ said he would connect this with other circumstances to show the intent. It was proper evidence to go to the jury, and they must judge what the intent really was. _The Court_ ruled that the evidence was admissible; and, _Henry King_ went on to testify: He was in Crandall's office in Georgetown, some time in July last. Received from Dr. Crandall a pamphlet similar to the one now shown him, called the "Anti-Slavery Reporter." There was something written on it, but can't say what it was. He left it at Linthicum's store. Some one took it away from the store and it was lost. _Judge Morsell._ Did Crandall make any remark, when you took the pamphlet? _Witness._ No. Witness was looking at the botanical preparations in the office, and seeing this and other tracts on the subject of abolition lying about, he took up one and remarked, "the latitude is too far south for these things;" "they won't do here;" but, "by your leave, I will take this and read it over." Crandall was at the time engaged in taking out preparations of plants from a large trunk. There were three of these pamphlets on the table, but don't know whether they were taken from the trunk or not. Crandall used newspapers, or something like them, as wrappers for the preserved plants. Witness is not a slaveholder himself. Witness after looking over the pamphlet threw it on the desk in Linthicum's store, and afterwards threw it under the counter. When the excitement arose, looked for it and could not find it. Had thought nothing about it till then. Did not remember what words were written on the pamphlet. Crandall did not call his attention to the tracts. He asked Crandall for the pamphlet, as a loan, and took it away with Crandall's leave. Crandall never asked for it afterwards. He saw something written on the pamphlet, and recollects that Crandall at his examination in the jail, admitted the words, "please read and circulate" to have been written by himself. He saw in Crandall's shop two or three of them, not more than three. The plants were enveloped in large newspapers. Crandall had been in Georgetown about three weeks or a month, at this time. Witness was frequently in the shop. Crandall was much engaged in gathering and preserving plants. _Key_ proposed to read from the pamphlet. _Coxe_ objected that the publication, with the malicious intent charged, had not been proved, and that it was necessary before going into any other evidence to make out the fact of publication. The paper could not be read to show the intent, when no evidence of publication is offered to show such a publication as is charged; and he cited various authorities of no interest to the general reader. _Key_ argued that possession alone of a known published libel, was evidence of publication sufficient to call upon the defendant to show how he came by it. The intent was to be inferred from the character of the libel: and the evidence he had already given was sufficient _prima facia_ evidence to put the prisoner to his defence, and allow the libel to be read to the jury. He meant to show other circumstances which would show the intent. If the evidence of having given one to a witness, and having in possession a bundle of other similar libels was not enough, then a man has only to keep them on hand, and take care not to give them away; but he may tell every body that he has them, and advertise them from one end of the country to the other; and may give them to every body who chooses to call for them, without any danger from the law. _The Court_ called King again, when he stated that Crandall permitted him to take away the pamphlet at his request, reluctantly; that it was a private office, without any sign, or indication of business, or any thing shown for sale at the windows, nor any thing for sale in the shop. The pamphlets might have been thrown down in the confusion of unpacking; and he never saw but three persons in the shop, which was usually kept locked. Crandall was mostly out collecting plants; and he once saw him describing some specimens to Mr. Cruickshank and Doctor King; he understood Crandall had given out that he was about to teach botany. The counsel for the defence here contended, that this was not sufficient evidence of malicious publication. The delivery to King was no more than simple possession in the eye of the law, and was compatible with entire innocence; and possession alone was no offence. _Key_ cited a number of authorities to show that _prima facia_ evidence of publication only, was necessary to let the libel go to the jury. Here was a publication--the jury must judge of the intent--with the handwriting of the prisoner endorsed with the words "read and circulate;" and he made the point that when a libel is printed, and a copy is found in possession of the prisoner, it is _prima facia_ evidence to allow the libel to be read. To prove that the words were on the libel given to King, in the prisoner's handwriting, he called _William Robinson_, who testified, that he saw the pamphlet which King said he got of Crandall in Linthicum's shop, and that the words "read and circulate" were written on it. _The Court_, deeming this to be _prima facia_ evidence of publication, permitted the pamphlet to be read to the jury, or so much thereof as either party might think proper to be read, and pertinent to the issue. _Key_ was about to read the libel. _Coxe_ objected, that it was not the libel proved to have been given to King, for that was lost. _King_ was called again and said the paper he had was lost; how or where he did not know; but he identified the one handed to him as an exact copy of the same pamphlet; but said he could not say what writing was on the one he had. He might have remembered if he had not seen some with and some without writing. _C. T. Coote_ was one of the examining magistrates in the jail when Crandall was arrested. He recollected that King pointed out one with the writing on, as similar to the one he had, and that Crandall admitted the writing to be his. _B. K. Morsell_, another of the magistrates, recollected that King stated distinctly, that the words "read and circulate" were on the paper when he got it; and that Crandall said it was his handwriting, but he did not recollect Crandall's saying it was put on a year before. The question was here raised and argued by the counsel on both sides, whether any evidence could be given of any libels, except those of which the publication was proved, unless they referred distinctly to the libels charged in the indictment. _The Court_ was of opinion that the United States could not give in evidence to the jury, for the purpose of proving the intent of the defendant in publishing the libel stated in the first count, any papers subsequently published by the defendant, or found in his possession unpublished by him, which would be libels, and might be substantive subjects of public prosecution, if published. _Thruston, J._, differed with the majority and delivered the following opinion: There are five counts in the indictment charging, in various ways, the publishing by the traverser of sundry libels with intent to create sedition and excite insurrection among the slaves and free blacks. The first count in the indictment charges the publication of a certain libel, not otherwise described or set out in the count, than by selecting certain paragraphs in the supposed libellous pamphlet, and setting them out severally in the count. To this count only and to the libellous matter charged thereon has any evidence of publication been given. The Attorney for the United States has moved the court to be permitted to give in evidence to the jury other printed pamphlets of the same character and on the same subject, and which the traverser acknowledged to represent his sentiments, as evidence of malice on the part of the traverser in the publication of the libel in the first count; the libel in the first count being one of those which, with the others now asked to be given in evidence, the traverser acknowledged contained his sentiments. That is, that it is competent to prove malice in the publication of one libel by others found in the possession of the traverser on the same subject, of which no proof of publication has been offered. The motion to admit the said alleged libellous pamphlets in evidence has been supported by no precedent or adjudged case, but from analogies drawn from proceedings in other cases, and from the expediency or necessity of punishing the enormous crime of which the defendant stands accused; enormous, we all admit the crime to be, if substantiated, but which judges cannot punish but under the rules and principles of law. Enormous as the offence is, it is questionable whether from public considerations it is not better that the accused should escape punishment, than that the law should be perverted to obtain his conviction. There being no authorities cited to sustain the motion of the Attorney for the United States, we have no other guide to enlighten and direct us than the established principles and rules of law in criminal proceedings. I take it to be well settled, that in indictments for libels, publication is the gist and essence of the crime; that having in one's possession one or more seditious or libellous writings, whether written or printed, if their contents be not communicated or made known to one or more persons, then the possessor is not criminal in a legal point of view. It is true that Hawkins was cited to prove that having in one's possession a known published libel is _prima facie_ evidence of publication against such possessors; admitting this authority, it seems not to touch the case before us, unless those libels were published within this District. They purport on the face of them to have been printed in _New York_, and there published, so far as sending them abroad, within that state, from the printing office, and putting them into the hands of others amounts to a publication within this District; and no evidence has been offered that the traverser ever distributed a single copy or imparted their contents to any person within this District saving the one charged in the first count. Hawkins surely did not mean that having a copy of a libel published in a foreign country in one's possession, was evidence of publication in another state or country where the possessor of such copy may be found: for example, a libel against the British government printed and published in France would be no publication in England, to charge a person found in England with one or more copies of such libels in his possession, with the guilt of publishing such libel against the laws of England. It is true, in times of great excitement in England, when the rebellious principles of France were gaining ground and endangering the very existence of the government, the Scottish courts did condemn and send to Botany bay, Muir and Palmer for having in their possession a printed copy of Thomas Paine's Rights of Man. It is very long since I read the case; indeed shortly after we first obtained the information of their trial, and shortly indeed after the trial; but I have never heard the judgment of the court in their case spoken of but with reprobation. I cannot remember the particulars of the case. The evidence was, that the book had been reprinted and published in Great Britain. If so, that case is stronger than that of having a printed copy in possession of a libel published only in a foreign country; and so far, if such be the fact, it is sustained by the dictum in Hawkins, but this dictum is not itself sustained, as far as I could judge from the authorities cited at the bar, from Hawkins himself, nor by any adjudged case. I think I may boldly assert, then, that the merely having in possession a libel printed and published in a foreign country only, is not an indictable offence here, and publication of the same libel here. Let us then examine how far these alleged libels, which, although not subjects of criminal prosecution here, can be made use of to sustain the publication, or prove, or aid in proving, the criminal intent or malice in the publication of another libel charged in the first count, and of the publication of which some evidence has been offered to the jury. Now the libels in the first count, of which evidence of publication has been given to the jury, is of itself libellous, or it is not; if it be libellous and published, the law deduces the criminal intent from the libellous matter itself, and therefore requires no aid from other libellous writings to sustain it: if it be not libellous, it cannot be made so by showing other libellous writings of the traverser, of which he is not accused or charged in the indictment. I mean the libellous matter itself in the libel is, in the eye of the law, proof of criminal intent, if it be published, unless the traverser can rebut this inference of law by proving his innocence of any criminal intent, by some sufficient excuse, as that some person stole the copy from him and published it without his knowledge or consent. But the Attorney for the United States urged that these pamphlets, indicating the one charged in the first count, contained or expressed opinions which coincided with his sentiments on the subject matter of them; and this was urged as a reason for admitting them in evidence. This, in my view, amounts to nothing more than that he appropriated to himself and adopted the thoughts of others. What proof could this appropriation or adoption afford of a malicious intent in their publication? Every man has an unquestionable right to his own moral or religious sentiments: there is no crime in this: it would be criminal to restrain any man in this country in his own, or in adopting the moral or religious opinions of others, if he please; it is criminal only when he attempts to propagate them, and only when they have a tendency to disturb the peace of society--to invade the general rights of property--and are most essentially criminal, if they have a tendency to produce the dreadful results charged in the indictment. But bad as the tendency of those writings may be, and unquestionably are, if truly portrayed in the indictment, I know not how much less danger would result, if, led away by our feelings, we bend the rules and principles of law from expediency, or the supposed political necessity of convicting the accused. The present crisis may pass without leaving any dangerous consequences behind it. The good sense and virtue of the people, and the fear of punishment in transgressors, will check the progress of these alarming doctrines; but if we invade the panoply which the law has provided for the protection of the accused against arbitrary or vindictive judgments, we establish precedents, the evil consequences of which cannot be calculated. The criminal intent, then, does not consist in the writing or possession of a written or printed libel, but in the publishing it. It is not easy to conceive how the criminal intent of publishing one libel, can be proved by the having in possession other libels not published, any more than you would be permitted to prove a man guilty of stealing one horse, because you might prove that he had a propensity to horse-stealing. But you would not be allowed to introduce such proof. The _quo animo_ with which a horse is taken, is as necessary in an indictment for horse stealing, as for publishing a libel. Now, as I observed before, if the matter of the pamphlet charged in the first count in the indictment is libellous, does not the acknowledgment of the traverser that the sentiment in the several pamphlets coincided with his own, embrace in it the sentiments in the pamphlets charged in the first count, and of which evidence has been offered of publication? If so, does not this libel of itself afford sufficient evidence of malice, without resorting to the matter of other pamphlets not charged? Then why resort to them? The traverser was not apprised from this first count, that he was responsible for any libel or libellous matter, except what was contained in the libel set out in said count. If you are permitted in order to prove malice in publishing the libel in the first count, to read to the jury the libellous matter of other alleged libels, what will be the consequence? The matter in those other libels may be of a more aggravated or inflammatory character than in that set out in the first count. Is it not evident, if such be the case, that the jury may be influenced to convict the traverser, not by the matter of the libel with which he is charged, but from that of other libels with which he is not charged? Surely, if malice in the publication of a libel be an inference of law, that inference must be drawn only from the libel charged and published, not from other writings which are not libellous because not published. As I observed before, if the paper charged in the first count be of itself libellous, the criminal intent of publication is to be inferred from the confession of the traverser that he approved of the sentiments contained in it. If such inference can be drawn from such confession it can as well be sustained from the matter of this libel, as from that of any number of others, and there is no need to resort to them for such inference; if the matter of such papers be not libellous, no number of other libels found in the traverser's possession, however coinciding with his own opinions, can sustain the libel charged. Again: if the matter of those pamphlets, which the Attorney for the United States has moved the court to be permitted to lay before the jury, be libellous, may not the traverser be hereafter arraigned upon them if proof shall be had of their publication? This is possible; almost probable, if his zeal in the cause be so great as has been attempted to be proved. Then might he not be convicted by their instrumentality in the present prosecution, and again in a subsequent prosecution for publishing those very libels? I thought the court had decided this point in a former opinion in this case, where they said they could not be evidence if _they were of themselves indictable writings_. Again: if the proof of malice in the publication of the charged libel be not complete, can it be made so by the production of other pamphlets or libels not published? Is it an inference of law, that having such libels in the traverser's possession furnishes any proof of malice in the publication of the charged libel? I question the legal logic of such an argument. It was almost as easy to publish by distributing fifty pamphlets as one. Now if but one of fifty was given out, is it not as probable that he did not desire to publish them, as that he did? Now an inference from facts, or acts, is matter of law, and I should hesitate to tell the jury that the traverser having in his possession fifty other libels, or any lesser or greater number, which he might have published with the same ease as he published one, is proof of malice in publishing that one. An inference to be drawn from proved facts or circumstances is something like a corollary drawn from a previously demonstrated theorem in mathematics. I wish it was as certain and clear. An inference deduced from a proved theorem in geometry is unquestionable. Every body will agree to it. An inference drawn by law from previously proved facts or circumstances, is doubtful at best. Two discreet judges may and often do disagree in regard to it. Do we not hear every day, in this court, of the most wise and able judges--of the venerated Hale himself--admonishing courts and juries not to lend a willing ear to them; at least against circumstantial evidence, which is the same thing. How many almost irresistable cases of inferences drawn from pregnant facts have been shown, in which time proved the fallacy of such inferences, and that many an innocent man has been consigned to an ignominious death by circumstantial or (which is the same thing) inferential evidence, and still so strong were the facts and circumstances in the very cases cited by them, (where time proved the innocence of the accused who had suffered the penalty of the law), that under the same circumstances I should permit the same evidence to go to the jury--but in the case before the court those admonitions are well worth considering. We are asked to admit certain pamphlets said to be of similar libellous tendency, and proved by the confession of the traverser to coincide with his opinions, as the one charged in the indictment, and of the publication of which evidence has been offered to the jury, although such pamphlets were never out of the possession of the traverser nor shown to any one, to prove malice in the traverser in the publication of another pamphlet charged to have been published by him in the first count in the indictment. I do not distinctly see the legal inference of malice in having in his possession those unpublished pamphlets. He could have published them, if this malice was in his heart. Why did he not? Is it not in evidence that when he permitted one of those pamphlets to be taken from his counter and read by Mr. King, that he did it with reluctance, and that he was warned of the danger of bringing such writings so far South? Is it unreasonable to suppose that he was deterred by the warning? Taking then the whole evidence together, although it proved great indiscretion in the traverser, and great guilt had he propagated his writings--and that he would have deserved the most condign punishment had he had the temerity to have published them--yet, if I am to take the whole of the testimony in the case, I should be compelled to say, that in withholding the other pamphlets from the view of others, or of any other, he was influenced by the counsel he had received, and was afraid to publish them; and that, under the circumstances in which he permitted the first pamphlet to be taken from his counter and published, if such permission be a publication, that he then was aware of the danger he was in, and that under such circumstances the having in his possession other pamphlets of a similar character, (if the publication by permitting the pamphlets charged in the first count to be taken from his counter and read by Mr. King, be not taking the contents of the pamphlet into view of itself a malicious publication), it cannot be made so by having other pamphlets of similar tendency in his possession, which he did not publish nor attempt to publish. It was contended, among the reasons assigned by the Attorney for the United States for the admission of those pamphlets in evidence to the jury, that some three or four of them were endorsed with the words "read this and circulate," in the handwriting of the traverser, and this was evidence of malice in the publication of the pamphlet charged in the first count, and of which evidence of the publication has been offered to the jury. But this pamphlet last spoken of had also the same words written on it: whatever evidence of malice may be inferred from these words, is furnished by the said pamphlet itself, and therefore it is not necessary to resort to other sources for such evidence. It is true that a multiplication of the same inscriptions on other pamphlets may, and do, manifest greater zeal, and more intense interest in the subject matter of the writings, and indicate an intention on the part of the writer of such inscriptions to publish them. The malice which the law denounces is in the publication, not in the writing or composition: a man may express his thoughts or opinions in writing with impunity, and is as innocent in the eye of the law (provided he keeps such writings or compositions locked up from the public eye) as if they were locked up in his own mind. Is not an indication or manifestation of an intention to publish certain writings or printed compositions, and the withholding the execution of such intention as strong evidence of change of purpose from fear of the consequences or for other reasons, as of malice in the publication of one of them in the way, and under the circumstances, in which the one charged to have been published in the first count was published? It is very clear, it seems to me, that if there were no other evidence of any other publication of any of the pamphlets in question, than the inscription on the corner "read this and circulate," that the indictment could not be sustained, because such inscriptions, if the pamphlets are never shown to any other person, is in the eye of the law harmless. If, then, we are asked to admit such inscriptions or pamphlets never shown to, or seen by any other person within this District, because there is evidence that one such pamphlet was permitted to be seen and partly read by another, must we not look at the evidence which proves such exhibition of such pamphlets, and connect that with such inscriptions on other pamphlets not published, to see how far such inscriptions go to fortify and strengthen the evidence of malice as to the published pamphlets? In other words, to see what legal inferences of additional evidence such inscriptions afford? If this were a case of ordinary importance, I should say without much hesitation, that they afford no such inferences. It is for the jury to draw inferences of guilt or malice from circumstances; they are fully competent to do so in the present case from the evidence now before them; but it is often and almost always a nice point for a court to instruct a jury from what circumstances or facts inferences of guilt or malice may be drawn. It is saying, Gentlemen of the jury, such and such a circumstance, if proved to your satisfaction, is evidence from which you may and ought to find against the traverser. It satisfies our minds and ought to satisfy yours. But juries ought and will judge for themselves in criminal cases; and I have always thought it a delicate matter in criminal cases, to give such instructions to juries. Here we are not asked to give an instruction; but we are asked to permit evidence to go the jury, which, if allowed, carries with it the opinion of the court that such evidence affords inference of malice. I must see such inference pretty clear myself, before I give my sanction to the jury to draw such inference themselves. It is true the law denounces any published writing having a tendency to produce a breach of peace, or insurrection, or to jeopardize the general rights of property, whether the intent of the writer was wicked or innocent, as libellous. The writing itself being of a libellous character, is of itself evidence of malice in the publication, and it would be no excuse for the publisher to say, I meant no harm, I thought I was doing good. In the eye of the law he is as guilty as if this intention was really wicked. This is called implied malice, in the absence of any other proof of malice than what is offered by the internal evidence of the writing itself. Now the object of the motion to lay before the jury other libellous papers, can be for no other purpose than to prove express malice; for the published libel charged in the first count, if it contain libellous matter, and was published, is of itself, sufficient proof of implied malice, and if it be not libellous, no other libellous writing can be introduced to make it so. Then, if it be libellous itself, it implies malice; and if other similar writings be introduced to prove malice, what does it amount to but proving the implied malice of one libel by the implied malice of other libels? Or, if it be said that some evidence of express malice has been laid before the jury, can you make this evidence more strong or clear by evidence of implied malice, contained in other similar writings not published? Upon the whole, I do not distinctly see, under all the circumstances of this case, how the unpublished writings can be admitted to prove the implied malice to be gathered from them if they had been published, the implied malice in the libel charged and allowed to have been published, or how such evidence of implied malice in them, can be brought to prove express malice in the publication of the charged libel in the first count. I am against the motion. _Mr. Key_, for the United States, then offered to prove the publication by the defendant of the libels stated in the first, second, and third counts, _by proving the following facts_, viz: that a large collection of libels, and among them several copies of those charged in those counts, with the words "_read and circulate_" in his handwriting, were found upon the traverser--that he undertook to account for their being in his possession, and gave untrue and contradictory accounts--that he acknowledged that he had brought here those then shown to him, being the same now in court, and that they comprehended all he brought here, except about a dozen; and that prior to the traverser's arrest sundry similar publications had been privately sent to various persons in this District by some unknown person or persons in this District. After arguments which occupied nearly the whole of Saturday, in which the counsel on both sides displayed great learning and ingenuity, _The Court_ delivered the opinion that the Attorney for the United States may give evidence of the publication, in this District, of any copies of the libels charged in the first and second counts of the indictment. That if he shall have given any evidence tending to show such a publication here, he will be permitted to show that other copies of the same libels were found in the possession of the defendant. He may then give evidence that a certain number of papers or pamphlets were found in the possession of the defendant, together with the copies of the libels charged, and of the publication of which in this District, he shall have given evidence; but he will not be permitted to give in evidence to the jury the contents of any of the papers other than those charged as libels in this indictment, unless such other papers have relation to the libels charged in the indictment, and would not in themselves be substantive ground of prosecution. He may then give evidence to the jury of any confessions or acknowledgments made by the defendant in relation to any of the matters charged in the indictment. _The District Attorney_ then put in evidence as follows, to show that the prisoner had many similar libels in his possession, and that others were distributed throughout the District. _H. B. Robertson_, constable, deposed that he found some tracts on Dr. Crandall's table at his office in Georgetown. Don't recollect how many. There were also a number of them at his lodgings, in a trunk. He denied to me that he had distributed any, but did not conceal or deny that he was in possession of them. He mentioned that he was formerly a subscriber to the Emancipator, but they had stopped it, and he had taken them in its place. They were sent to him from New York, and came in a box by water, and not by mail. Witness collected and brought them to the jail, tied up in a handkerchief. Being fearful of some trouble when he got into the hack, he proposed to Mr. Jeffers to take Crandall to the jail through the back streets, and keep him there during the night, for fear he might be wrested from us and lynched. It was Dr. Crandall's desire to be taken out of the way of the people, and be carried to the jail. Before they left the office a crowd had collected, and they made an effort to get off as quick as possible, being very apprehensive that Dr. Crandall would suffer some harsh treatment, and serious injury from them. The event verified his expectations, for he found afterwards that the carriage was waited for somewhere on the avenue, where it was expected to pass, by a numerous and excited collection of people. _Cross examined._--Conversed with Dr. Crandall at his office and on the way to the jail. Went to his lodgings, and found Emancipators there. Did not offer to carry him before a magistrate in Georgetown. Told Dr. Crandall what my apprehensions were for his personal safety, and of being waylaid, and proposed that he should stay at the jail that night. He attempted no concealment, and gave witness free leave to search his papers, &c. Witness found Boston, New York, and Baltimore newspapers, and a great many Telegraphs. Dr. Crandall opened the trunk himself and showed the tracts. Don't remember whether they were loose, or tied together and enveloped. Those were the pamphlets now in court. Don't recollect whether the letters were brought away. There were many plants in the office. Don't know what they were put up in. Think it was pasteboard, or something like it. Asked him if he was Dr. Crandall, to which he replied yes. Then told him that he was charged with being an abolition agent and exhibited the warrant for his arrest. He did not then say any thing about the tracts in his possession, but when they were found he stated they were sent to him from New York, instead of the Emancipator, to which he had formerly been a subscriber. He did remark that he had not distributed any tracts of the kind. _Question by Key._ Which of the pamphlets did you find at the office, and which at the house? _Coxe_ objected to the question. _Key._ I wish to know which kind were sent to Crandall in the box from New York. _Cranch, C. J._, saw no objection to the question. Witness then stated that he found the Anti-Slavery Reporters in the office. Did not recollect any others in the office, except the newspapers. The other tracts, together with some books, were found in his trunk at the house. Crandall did not say all the papers came in the box. Did not endeavor to elicit any confessions from Dr. Crandall, and, in fact, reminded him that he and Mr. Jeffers might be called on as witnesses. Witness recollected that, during the examination, there was a paper produced by Dr. Crandall, who was too much agitated to read it. One of the magistrates attempted to read it, but don't know whether it was read or not. Dr. Crandall was much agitated. There was a great excitement outside the jail, and much alarm in it. Dr. Crandall was arrested on the 10th, and examined on the 11th of August. Witness remembers that there was a conversation in the hack, as they were coming from Georgetown to the jail, in which the following question was asked Dr. Crandall:--"Don't you think it would be rather dangerous, at the present time, to set all the negroes free?" Don't recollect the precise words of the reply, but he inferred from it---- _The Court_ interposed. We don't want your inferences, Mr. Robertson; give us the facts, if you please. Well, if it please the Court, continued Mr. Robertson, my impression was, at the time, that Dr. Crandall's reply amounted to this--that he was for abolition, without regard to consequences. Mr. Jeffers asked the Doctor if he did not think that abolition would produce amalgamation and also endanger the security of the whites. The doctor did not object to these consequences. He thought the negroes ought to be as free as we were. _M. Jeffers_, constable, deposed that he saw some pamphlets endorsed "please read and circulate" in Dr. Crandall's office. Witness, when he entered the office, said, "we want all your incendiary tracts, Doctor." Witness looked into a large box and saw the pamphlets. The box was without cover, and the pamphlets lay in a corner. At his lodgings, more pamphlets were found. Don't know how many there were in the box. Those in the trunk, at the house, were nearly all new. Dr. Crandall explained that they had stopped the Emancipator and sent the pamphlets in lieu of it. Think he said they were sent around in a vessel, in a box. Witness asked him what he was doing with so many of them. The reply was that he had procured them for information. Don't recollect that any of the botanical specimens were in newspapers. He said they had stopped sending papers weekly and sent them monthly. Witness asked what he was doing with so many of the same numbers at the same time, to which he replied that they all came in the box, and that he wanted them merely for information. Witness looked into, and not liking their language, remarked that he did not see how any one could derive much improvement from such stuff. Witness recollected that there was a paper which Dr. Crandall tried to read, but was prevented from reading, by extreme agitation. Dr. Crandall rolled it up and put it in his pocket. He was much agitated, and witness thought, at the time, that he was indiscreet in so freely expressing his sentiments. No pamphlets with the endorsement "read and circulate" were found in the trunk. When Crandall was asked why he wanted so many of the same number of the Anti-Slavery Reporter for information, he made no reply. In the course of the conversation in the hack, Crandall said he did not intend to deny his principles. Witness asked him if colonization would not be better than abolition. He replied: No; he was in favor of immediate emancipation. _Question by Bradley._ Did he not say, "I am for immediate preparation for emancipation." Witness did not recollect precisely. That might have been the answer. Would not say it was not. When he said he was in favor of immediate emancipation, witness remarked that it would be attended with dreadful consequences. We should all have our throats cut, and the next thing would be amalgamation. _Thruston, J._ Would the amalgamation occur after our throats are cut, Mr. Jeffers? _Witness._ Dr. Crandall in reply to this remark, said, "well let the law take care of all that." _B. K. Morsell, Esq._, one of the justices who committed the traverser, stated that, at the examination of the traverser in the jail, the witness just examined, Henry King, deposed that the pamphlet which he took from Crandall's office had written upon it the words "please to read and circulate." This deposition was made in the presence of Crandall, and Crandall did not pretend to deny it, and admitted that the words were in his own handwriting. He said that when he was about to take passage in the steamboat, at New York, there was a bundle of pamphlets brought to him. Don't recollect whether he said they were brought to him before or after he went on board of the boat. Don't remember whether Crandall said they were sent or brought to him. He stated that he was then on his way to this city. A bundle of pamphlets were brought into the jail, at the time of the examination. Crandall said that all he brought on were there, except twelve or thirteen. Crandall did not state at what time the words "please read and circulate" were written upon the pamphlets. There was no distinction drawn between those which were endorsed and those which were not. They were all thrown together. Don't recollect that Crandall made any distinction in regard to them. He was understood to speak of all the pamphlets together. The only contradiction in Crandall's statement was that he, at first, said that pamphlets were brought to him as he was leaving New York in the boat, and afterwards said they had been in his possession for some time. Witness looked at some of them and saw that some were of older date than others. Could not distinctly recollect which were of old and which of new date. There was a considerable interval between the dates, but don't remember how long. While the examination was going on, there was a great commotion outside of the jail, and a loud knocking at the door; the prisoner seemed agitated, which was not wonderful, considering the circumstances. Don't recollect that he said any thing about the time when the words "_please read and circulate_" were written on the pamphlets. _Mr. Key_ here admitted that he recollected hearing the prisoner say, at the examination in the jail, that the endorsements were written two years before. _Mr. Morsell_ continued. Don't remember that Crandall presented a written paper. Think it likely he did. There were three magistrates sitting, and it might have been given to one of the other two. He believed it appeared, on the examination, that Crandall had been in this District some months. _Clement T. Coote, Esq._, one of the magistrates who examined the traverser in the jail, deposed that Henry King, upon his examination, stated that the words "_please read and circulate_" were written upon the pamphlet when he got it from Crandall. A bundle of the tracts were brought in. Crandall said he had received them just as he was leaving New York, on his way to this District. He was going down to the boat when they were brought to him. Crandall stated, as witness distinctly recollects, that the endorsements were made some time before. Witness did not recollect that he stated the precise time, but that he said the endorsements were made some time before. Did not recollect that he said he came on directly to Washington. After the pamphlets were shown to King and Crandall, witness's impression was that Crandall had been detained some where on the way, and in the interval had written the words. There was no contradiction that he noticed in Crandall's statements. Crandall admitted that the words were in his handwriting, but said they were written some time before. Crandall said they were all there except about a dozen. He did not say whether he had distributed any; but witness did not understand him to state that the number had been diminished since he came here, but that the bundle exhibited embraced all the tracts which he brought with him from New York. Witness's impression that they were all the pamphlets which witness brought to the District, except the one which he lent to King; but Crandall did not in his statement except that one. He understood Crandall that all that he received at New York were there, except about a dozen. He recollected that Crandall said he had been a subscriber to some of the abolition publications. Witness or one of the magistrates asked Crandall "whether he was aware of the nature of the pamphlets when he left New York?" To which Crandall replied that he supposed them to be of the character with those for which he had been in the habit of subscribing. Crandall was also asked "why he was put in possession by the publishers of so many copies of the pamphlets, and whether it was not because they supposed he would circulate them and be an efficient agent?" In reply to which Crandall said "it might be so." He did not intimate that he had any knowledge of his appointment as an agent. _The Court_ here asked witness whether the traverser intimated that the tracts were given to him with his assent and approbation. _Witness._ He admitted that the tracts contained his sentiments; but he was not understood to say that he approved of his appointment as an agent, or considered himself as acting in that capacity. When Crandall said the endorsements were written some time ago, witness called his attention to the date of one which was not two years ago. Witness received a written statement from Crandall at the examination. Does not know what became of it. Thinks it was returned to Crandall. Crandall did not say he knew the contents of the tracts when he received them, but said he supposed they were of similar character to those which he had subscribed for. Witness read a paper which contained Crandall's statement on the subject, and recollects that it was written in the jail. Has no recollection that it stated that Crandall was a member of an Abolition or Emancipation Society. When witness called Crandall's attention to the endorsements on the tracts, Crandall said they had been on some time. Believes he said something about two years, and recollects that he then remarked to Crandall that one of them had not been published two years. _B. K. Morsell, Esq._, (called again) stated that Crandall, when asked whether he was acquainted with the nature of the pamphlets sent to him in New York, said he supposed that they contained his sentiments, and were of the same character with those which he had taken some time before. He used these very words, "I don't pretend to deny that I am an anti-slavery man, and profess these sentiments." The pamphlets were then before us, and the examination referred to them. He added, that when he came on here, he found he was too far South to circulate the tracts, and that all he had received were those before us, except about a dozen. He did not deny that he came direct to this city from New York. He said nothing which impressed witness with the belief that he stopped on the road, if he said he stopped on the way, witness did not hear it. There was considerable confusion in the jail during the examination. Crandall might have said many things which witness did not hear. There were a great many people in the jail. He recollected that Crandall said the words "please read and circulate" were written two years before, and that Mr. Coote pointed to a pamphlet, so endorsed, which had been printed within two years; but he understood that Crandall's statement was applied to all the pamphlets together. He understood that some of the pamphlets were found at Crandall's office, and some at his lodgings, and that they were found scattered about the office. Does not recollect that there was any testimony about unpacking a box. There was nothing in the testimony which made any impression that there was any distinction between the pamphlets. They were all brought together. Recollects that Crandall handed him a written paper. Began reading it, but could not get through with it; could not read it, and handed it back to Crandall; supposed that it was written under some agitation. _Jacob Oyster_ knew the prisoner in Georgetown, and prisoner hired a shop of him. He was sick some time after he hired it, but had a large box put into it. When he hired it he said he was going to lecture on botany at different places. Witness was present when he opened the box, and it contained books, surgical instruments, and pamphlets. He saw two or three such pamphlets as were shown in court, which were thrown out of the box. Mr. King came in and picked up a pamphlet and said he should like to have the reading of one; and the prisoner said he might. When King saw it, he said it would not answer, it was too far South. A day or two after he asked King what he thought of it, and he said he didn't like it, and asked witness if he had seen the endorsement, which he showed, "read and circulate." Witness didn't see any writing on the others. He had some conversation with Crandall when the news first came of the attempt to murder Mrs. Thornton, and told prisoner nobody was to blame but the New Yorkers and their _aid de camps_; and that the boy said he had made use of their abolition pamphlets. Crandall replied, that he didn't approve of putting them into circulation, for the excitement was too high already. _Cross-examined._ He said he helped unpack the box--that he knew of no other pamphlets; but Crandall had newspapers to put up his plants. Witness was in the shop almost every day, and never saw more than two or three people there; and never saw Crandall talking with any colored people or slaves. He was in the habit of going out into the fields, and brought back a great many plants. He thought the prisoner conducted himself very well, and was a very steady man in every respect. The papers in his office were of all sorts, and from different cities. _William Robinson_ saw the words "read and circulate," but had never seen the defendant write. He had received similar publications but did not know where they came from. One came through the post-office, but was not postmarked where it was sent from; and had no postage on it. He returned it to New York to the publisher. He heard Crandall admit the handwriting to be his in the jail. _Charles Gordon_ was in the War Department, and the whole building was flooded by them. He returned his to New York to the agent with remarks, and had received none since. This was just before Crandall's arrest. _Coxe_ remarked he had done the same; and it was no evidence against Crandall. _The Court_ was of opinion that the printing and publishing these pamphlets in New York, is not evidence of their publication here, so as to fix upon the defendant here such a knowledge of their publication as to make his possession alone, even with the words "_read and circulate_" written upon them, evidence of the publication of them by him here. That in order to show the evil intent with which the defendant published the paper charged in this first count, it is not competent for the United States to give in evidence to the jury other _unpublished_ papers or pamphlets found in the defendant's possession, unless accompanied by evidence of some acknowledgment or admission, by the defendant, that he knew and approved their contents. That the evidence did not appear to the Court to justify the inference that the defendant knew and approved the contents of those pamphlets, unless it can be connected with evidence that they were of the same nature with those which he had been a subscriber for. _Key_ then proposed, as he had shown that the traverser had by his declaration approved of the publications, and had also implied approval by writing on the words read and circulate, to put them in as evidence of intent, in relation to the one published, and given to the witness King. _The Court_ ruled that they could not be given in evidence, without proof of publication. _Key_ then proposed to read the Emancipator, as a paper he had subscribed for, instead of which these had been sent. This was objected to on the ground that there was no proof that he had _subscribed_ for the Emancipator; and that if he had, it was at a period previous to the time about which he was charged with any offence. The Emancipator was sent gratis, and _taken_ by many persons who did not approve of it. _Jeffers_ was called, and said Crandall said he had _taken_ the Emancipator, or _subscribed_ for it, he didn't know which. _The Court_ decided that such Emancipators might be given in evidence as were published before the declarations of the traverser. _Thruston, J._, dissented from this opinion on the ground that it was not competent to put in one libel, for which the prisoner was not indicted, to show the sentiments he entertained in regard to one for which he was indicted. In the midst of considerable discussion as to the parts which were proper to be read on the different sides, the most of the day, Tuesday and Wednesday, was consumed in reading long articles from different numbers of the Emancipators, to show that the Anti Slavery Society intended to use every exertion to procure the immediate abolition of slavery. In the course of this reading, _Key_ proposed to read an advertisement of the different works published by the Anti Slavery Society, which was objected to on the ground that it would admit all the works named to be read, and as Crandall had not been proved to be a member of that Society, he ought not to be made answerable for all their doings, nor for all that the editor of the Emancipator might see fit to publish. _The Court_ decided that the reading must be confined within some reasonable limits. That the District Attorney might read such _editorial_ articles, or parts of them, as he saw fit, and the counsel for the defence might read any other parts, or the whole, if they chose. The advertisement was of course rejected, but reading of other parts was continued. _The District Attorney_ afterwards offered evidence, under the third count of the indictment, to put in certain tracts with pictures upon them, which was objected to upon two grounds. _First_, that the count was insufficient, as it did not specify any libellous publication and did not declare that the offence was against any person, or government, or people, which was said to be an essential form of indictment; and, _second_, because the whole of the tracts, papers, and pamphlets, were illegally obtained from the prisoner. The defendant's counsel then read the warrant under which Crandall was apprehended, which authorized the officers to take the person of the prisoner, and to search his papers; and contended that such search warrant was illegal--that a man's private papers were sacred from search. The objection was resisted on the ground that the objection was made too late. It should have been taken at the outset of the trial, or before the magistrates--that the warrant (which was admitted to have been made by the District Attorney) was proper, and conformable to the law which admitted of search in the premises and in the persons of thieves and counterfeiters for the tools and implements with which they were enabled to commit their crime--and that it was competent to use the evidence which had been obtained, although it was illegally gotten in the first instance. _The Court_ was of opinion that the evidence was competent, on the principle upon which evidence might be given of stolen goods found in consequence of confession, though the confession might be forced from the prisoner by threats or evil treatment. The confession might not be evidence, but the fact of finding the stolen goods could be proved to the jury. _The Court_ also overruled the objection to the form of the count, and did not consider it so imperfect as to authorize them to reject evidence offered under it. _Key_ then went on to prove that certain libels found in the possession of the prisoner were circulated in the District. _Gen. Hunter_ identified one of the tracts as a copy of one sent to him through the post office, marked one cent postage, both the tract and envelope of which having been burnt. He thought it strange the postage from New York should be only one cent. It was about the time the city was inundated with abolition papers. _Coxe_ objected to the testimony, if the paper was destroyed. _Key_ was called as a witness by Bradley, and testified that the paper handed the witness was one of them handed in at the jail as found upon Crandall, and had not been out of his possession, since. _Bradley_ remarked that the paper was a July number, and had not been published when Crandall came from New York. If, by the testimony showed, they were all delivered in New York, this paper could not have been found upon him. _James A. Kennedy_ was shown a paper, and said his initials were on it. A considerable number of the same came on in a bag--about a bushel and a half--from New York, some of which were delivered and some were returned to the post office. The rest were not delivered at all. He did not recollect any of the same kind sent before, though many had been sent since, every month, as late as March last. They came in an envelope addressed to single individuals. The postage for a sheet was two and a half cents. These were marked half a sheet, and some were charged one cent and a quarter; afterwards, they were found to be more than half a sheet, and were charged two and a half cents, as for a whole one. There was no postmark put upon them, as that is confined wholly to letters. _Benj. E. Giddings_ saw some of these papers at the time spoken of by Mr. Kennedy; and never saw any before July last. They all came in a bag, and he did not think any were dropped into the post office here. The office here, as well as at Georgetown, had been watched to see if any were put in by persons here. The two last witnesses were clerks in the post office. _Mr. Ball_ said the papers were given to him at the jail, after Crandall's examination, and he kept them locked up till they were sent for and delivered to Mr. Key at his office. It appeared that they were kept at the office some time, and were sealed and labelled by Charles McNamee, though one or two persons were in the office while he was doing it; and Mr. Key certified, that on the first day of the trial, before they were sorted, many persons in court took different numbers of them to look at, but he believed they were all returned, and he took pains to request them who took them to hand them back to him. To the best of his belief, the pamphlets now in court were the same which were delivered at the jail, without addition or diminution. _P. R. Fendall_ was connected with the office of the Colonization Society. The Anti-Slavery Reporter was sent from New York in exchange for the African Repository published by the Colonization Society; some controversy had existed between the two Societies, and it was necessary to read their attacks in order to be able to answer them. The papers received were open for the use of members, and were sometimes loaned to others to take away and read. _Key_ then offered four numbers of the second volume of the Anti-Slavery Reporter to the jury. _Bradley_ claimed one as his, which never was in the possession of the prisoner. _Key_ requested him to be sworn, and _Bradley_ testified, that he could identify the paper by several marks which he pointed out. He received it in November last, in consequence of a letter which he had written with a view to procure two or three, which were sent on through the post office. He wrote for them in consequence of conversation with Crandall; (but he was not allowed to state the substance of what Crandall said.) How this paper came into Mr. Key's possession he did not know, but this disappeared from his desk in court, and two others had been taken from his office. Considerable argument ensued upon the point, whether it was competent to give in evidence a printed copy of a _known published libel_, or whether in order to be evidence against the person on whom it is found, it must not be a written copy. On one side it was argued that every one might innocently have a printed copy, but the having a written copy would show some extraordinary interest in the libel; and the books all spoke of a written copy only as evidence of publication. For the prosecution it was urged that having a printed copy was stronger evidence than a written one, especially when the party had a number of copies of the same libel, endorsed in his own handwriting with words that showed an interest, and an intent to circulate it. _The Court_ was of opinion that it was competent to give in evidence such printed copies of the known published libel as were found upon the prisoner with the endorsement "read and circulate." Two witnesses were called, _Colclazier_ and _Tippet_, to testify to conversations held with Crandall in the jail, in which he spoke in favor of immediate emancipation and against slavery. The case for the prosecution was here closed. _Mr. Bradley_ then stated the opening of the defence. After some general remarks upon the course taken by the prosecution, and difficulty of getting witnesses here to testify in behalf of the prisoner, from so great a distance, as well as the impossibility of putting in depositions in a criminal case, without the District Attorney's consent, which he would not give, he went on to call the attention of the jury to the details he meant to prove. He intended to show Crandall's whole course of life, from his boyhood up; that he was regularly educated as a surgeon and physician, and settled in Peekskill; and that no man ever obtained a higher character for probity and skill; that he never was a member of an abolition society, and there was none in the place where he lived; that he had no idea of stopping here when he came on, but came as the attendant of an invalid family with whom he had resided; that the pamphlets were packed up, not by him, but by the lady of the house, as waste paper, without his even dreaming of their contents; and that the endorsements were put on some two years ago. He would show also that he had subscribed for temperance papers; but that the abolition papers were sent to him without his knowledge of their contents; that after he arrived here, and found this the best field in the world for the study of botany, he concluded to stop and give a course of lectures, instead of going to the West, as had been his intention previously, according to arrangements he had made. The bundle that was given him in New York was sent without his knowledge of their contents. It remained tied up till a day or two before his arrest, when it was untied by Mrs. Austin; and, as had been proved by the officers who arrested him, up to that moment they had never been opened or even separated. He said he would show the law, and bring it to bear upon the points of the case; and he declared if he believed Crandall guilty of distributing or intending to distribute incendiary papers, he would abandon his cause, and no longer consider himself his counsel. The following extracts of speeches made in the Capitol at Washington, at the eleventh annual meeting of the Colonization Society, in which slaveholders themselves made remarks which, it was urged by the defendant's counsel, were quite as strong, and as much calculated to excite sedition, as the words of the libel charged against the prisoner. Mr. Key read the parts of his own speech not enclosed in brackets, to show the difference of meaning in the whole papers, and the difference of intent. The paragraph in brackets was read by Mr. Bradley. The following is from Mr. Harrison's speech: "But a dearer land to our hearts is too to be regenerated. A wretched class, cursed with ineffectual freedom, is to be made free indeed, and an outlet is to be opened to those who will voluntarily disencumber themselves of the evil and the threatening ruin of another domestic pestilence. Public opinion must be the only agent in this: the most reluctant shall not be forced; the most timid shall not be alarmed by any thing we are to do. Hitherto and henceforward our plan has been and shall be without constraint on any one, and never shall we offer any argument or invitation to humanity divorced from patriotism. To this truly quiet, unofficious spirit, do I trust for bringing about the time when we shall be one homogeneous nation of freemen; when those great principles now true of us only in part, shall be true in the whole; and when the clear light now in our upper sky only, shall brighten the whole expanse of the American character." The speech of Mr. Key, the District Attorney, is as follows: "On behalf of the Board of Managers, who had this night seen and heard all that was calculated to animate them to a faithful discharge of their duties, he begged leave to present a resolution of thanks for the zealous co-operation of the Auxiliary Societies throughout the United States. In the increasing exertions of these valuable branches of the parent Institution, the Society believed itself to possess the most satisfactory pledge that its design had received the approbation, and would ere long enjoy the support of the great body of citizens throughout our country. Such an anticipation was not to be thought delusive, because the opposition made to the Society at its commencement still continued. On the contrary, this very opposition, properly considered, affords the fullest proof of the wisdom of our object, and the fairest presage of its success. "At its origin the Society found itself in a very extraordinary situation. It had scarcely been formed when it was assailed by opponents of the most contrary character, from the North and South. Men who held, upon these subjects, the most opposite views, who agreed in no one thing that related to our colored population, united in denouncing us. This state of things, in some measure, still continues. But the Board of Managers have long ceased to look upon it with alarm. They soon perceived that a wisdom far higher than their own, was, in a way most contrary to their expectations, gradually preparing the public mind for a fair consideration and favorable reception of their measures. They were compelled to see and to acknowledge that it was best it should be so. Had the design of the Society been approved and supported in the outset by either of these opposing parties, it must have encountered the settled and irreconcileable opposition of the other; but as it is, the Society, instead of being espoused by the North in opposition to the South, or by the South in opposition to the North, has been silently filling its ranks with converts from both. Its cause has been gradually bringing over the moderate, the reasonable, the humane, the patriotic, from all parties and from every portion of the Union to give their aid and countenance to the support of a scheme which they once opposed only because they misunderstood it. I have adverted to this extraordinary opposition that the friends of the Society may not be dismayed by it; and I take this occasion to address a few words to each of these classes of opponents. ["I would premise what I have to say to them by stating two very plain propositions. The first is, that the subject of slavery, in some way or other, will come into the thoughts, feelings, and plans of men situated as we are. It is vain to say--let it alone. There may have been a time when the excitement now felt on this subject might have been stifled. When it was determined by our fathers to secure to themselves and their posterity the rights of freemen and the blessings of independence, then should they have been warned of the exciting consequences that would result from the acquisition and enjoyment of such rights. Then should it have been shewn how they would lead to conceptions and discussions dangerous to the rights of property and the public peace. Then should they have been called to choose between these conflicting interests, and to count the cost of what they might lose by declaring to the world that all men were free and equal, and appealing to heaven for its truth. But there was, then, no man cold enough for such a calculation; no man who could darken the brightness of that day by raising such a question. It is too late now. In this age, in this country, the agitation of this subject is unavoidable. Legislation never can restrain it. Public sentiment never will. You may as well forge fetters for the winds, as for the impulses of free and exulting hearts; if speech and action could be repressed, there would be excitement in the very looks of freemen.] "The other proposition is this, that among the plans and descriptions that relate to this delicate subject, it must happen that some will be rash and dangerous. "It is not to be expected, that men, not well informed of facts as they exist, and misled by the ardor of an inconsiderate zeal, will not devise projects and hold them out to others, which may be attended with the most disastrous consequences. This is the nature of things. It must ever be so upon every subject, which like this contains within itself the elements of great excitement; more especially when that excitement is connected with some of the best principles and feelings of the heart. "Now, sir, put these two propositions together; that silence and inaction are unattainable, and dangerous and improper projects almost unavoidable, and what are we to do? Something we must do. However desirous we might be to do nothing, it is impossible, because others will not consent to do nothing; and if we relinquish the task of action, it will infallibly fall into hands most unfit to receive it. Nothing remains, then, but to devise something safe and practicable and place it in prudent hands. "And now, sir, I would respectfully ask our opponents, of both descriptions, to consider whether this has not been done by the establishment of this Society. I would ask the abolitionist to suspend his own labors, and consider the object and the consequences of ours. I would ask him if it is not better to unite with us in what is safe and practicable, and may be managed with the consent of those, whose consent is not to be dispensed with, than to attempt to force his own views upon men, by means which they denounce as dangerous. "Sir, this is the appeal which has been made by the Society, and which it yet makes to one class of its opponents. Nor is it altogether unsuccessful. Many active and benevolent men are now with us, who, but for this Society, would have been working on their own more questionable projects, and vainly attempting what, perhaps, can scarcely be pursued, with safety to the peace and happiness of the country. "And may we not appeal also to our brethren of the South--and ask their fair consideration of the two propositions I have suggested? If feeling, discussion, and action, in reference to a subject upon which they are so sensitive, cannot be extinguished, is it not wise to endeavor to moderate and restrain them? May they not, if they cannot give their approbation to our Society, as good in itself, at least bring themselves to tolerate it as the preventive of greater evils? May it not be wise for those who must know that there are schemes more alarming to their interests than colonization, to suffer us to enlarge our sphere of action, and bring those who would otherwise be engaged in dangerous and injudicious projects, to unite in our safer labors? May we not claim at least this merit for our labors:--that they are safe? May we not appeal to the experience of eleven years, to show that the work in which we are engaged can be conducted without excitement or alarm? And who are we, we may be permitted to ask, to whose hands this charge has been committed? We have the same interests in this subject with our Southern brethren--the same opportunity of understanding it, and of knowing with what care and prudence it should be approached. What greater pledge can we give for the moderation and safety of our measures than our own interests as slaveholders, and the ties that bind us to the slaveholding communities to which we belong? "I hope I may be excused if I add that the subject which engages us, is one in which it is our right to act--as much our right to act, as it is the right of those who differ with us not to act. If we believe in the existence of a great moral and political evil amongst us, and that duty, honor and interest call upon us to prepare the way for its removal, we must act. All that can be asked of us is, that we act discreetly--with a just regard to the rights and feelings of others;--that we make due allowances for those who differ with us; receive their opposition with patience, and overcome it by the fruits that a favoring Providence, to which we look, may enable us to present from our labors." The next passages were from a speech of Mr. Custis, as follows: "Sir, the prosperity and aggrandizement of a State is to be seen in its increase of inhabitants, and consequent progress in industry and wealth. Of the vast tide of emigration, which now rushes like a cataract to the West, not even a trickling rill wends its feeble course to the Ancient Dominion.--Of the multitude of foreigners who daily seek an asylum and a home, in the empire of Liberty, how many turn their steps toward the regions of the slave? None. No not one. There is a malaria in the atmosphere of those regions, which the new comer shuns, as being deleterious to his views and habits. See the wide-spreading ruin which the avarice of our ancestral government has produced in the South, as witnessed in a sparse population of freemen, deserted habitations, fields without culture, and, strange to tell, even the wolf, which, driven back long since by the approach of man, now returns, after the lapse of an hundred years, to howl o'er the desolations of slavery. "Where, I ask, is the good ship Virginia, in the array of the national fleet? Drifting down the line, sir,--third, soon to be fourth. Where next?--following in the wake of those she formerly led in the van: her flag still flying at the main, the flag of her ancient glory; but her timbers are decaying, her rigging wants setting up anew, and her helmsman is old and weatherbeaten. But let her undergo an overhaul, let the parts decayed by slavery be removed, and good sound materials put in their stead, then manned by a gallant crew, my life on it, the old thing will once more brace upon a wind, aye, and show her stern to those who have almost run her hull under. "Let me say, sir, in this legislative hall, where words of eloquence have so often "charmed the listening ear," that the glorious time is coming when the wretched children of Africa shall establish on her shores a nation of Christians and freemen. It has been said that this Society was an invasion of the rights of the slaveholders. Sir, if it is an invasion, it comes not from without. It is an irruption of liberality, and threatens only that freemen will overrun our Southern country--that the soil will be fertilized by the sweat of freemen alone, and that what are now deserts will flourish and blossom under the influence of enterprise and industry. Such will be the happy results of this Society. "Let the philanthropist look at the facts. Nearly two millions of this unhappy people tread our soil. In the Southern climate their increase is more rapid than that of the whites. What is the natural result, if some means are not applied to prevent it? What is now, compared to our own population, but as a mole hill, will become a mountain, threatening with its volcanic dangers all within its reach. What is the next consequence? Why, as in the slave colonies of other countries, you must have an army of troops to keep in awe this dangerous population. What a sight would this be in a land of liberty! The same breeze that fanned our harvests, that played among the leaves of the cane and the corn, would also rustle banners of war! By the side of implements of agriculture, employed in the works of peace, will appear the gleam of arms. Shall it be said that we are not liable to the same vicissitudes that have overtaken other nations? No, sir; we are operated upon by the same circumstances to which other nations have been subjected.--The same causes will produce the same effects, as long as the nature of man is unchanged, in every clime. "I trust, sir, that the march of mind is now upon its glorious way. I trust that the minds of all have been sufficiently opened to the true interest and glory of the country, to agree with me, that this is no fitting place for the slave. That this country must, at some future time, be consecrated to freemen alone. There are many individuals in the Southern country, of which I am a native, who predict that the plan must fail. They say we shall go on and partially succeed, that a portion of the black population will go out to the colony, and after residing there a short time, become discontented, when the plan must be given up--and that the evil which we have endeavored to remove will be only the worse for our exertion to obviate it. But this, sir, will not hold true. It was, as it were, but a few day since, a small number of individuals were thrown upon the shores of Africa. And what is the result? Here let it be said--in the palace of legislation--that this people, but just now a handful, are rising to consequence, and to a capability of the enjoyment of political and civil rights;--and let us say to those who doubt--this is the evidence in favor of our plan! Ought not this to join all hearts, and call forth renewed exertions from those whose labors have thus far been crowned with unexpected success? "May not this be looked upon as a glorious work, the success of which has been demonstrated! And when the time shall come,--and I trust in God it will come--when this free and enlightened nation, dwelling in peace and happiness under the mild influences of its government and laws, shall have fixed deep the foundations of civilization in that distant land, hitherto only known for its wide-spread deserts and its savage race. Oh! sir, what will be the gratitude of that people, who, transferred from the abode of their bondage, shall enjoy the rights of freemen in their native clime!--And, oh sir, when we look to ourselves--when we see the fertilization of those barren wastes which always mark the land of slaves--when we see a dense population of freemen--when lovely cottages and improved farms arise upon the now deserted and sterile soil--and where now deep silence reigns, we hear the chimes of religion from the village spire;--will you not--will not every friend of his country, thank this Society for its patriotic labors! Yes! Kings might be proud of the effects which this Society will have produced. Far more glorious than all their conquests would ours be: for it would be the triumph of freedom over slavery--of liberality over prejudice--and of humanity over the vice and wretchedness which ever wait on ignorance and servitude!" _B. Hallowell_, having affirmed, stated that he knew Crandall, and that he came here in May last, with introductions from very respectable sources. Dr. Crandall had also been here about a year before, at which time he (Mr. H.) wished to engage a person at his seminary in Alexandria, as a lecturer on botany. He offered him $100 a year, and encouraged him to believe that he would considerably add to that income by making up different classes during the year. Dr. Crandall said, at the time, that he would take it into consideration, and if he should determine upon it, would move down. The Doctor did not return in time to fulfil that engagement. But he brought with him letters showing that he was a christian, a man of science, and a gentleman. He understood it to be Dr. Crandall's object to have a class not merely for one session, but for every summer, while he remained here. It was about the last of May or first of June when Dr. Crandall returned. _General Fowler_, of Georgetown, stated that he knew Dr. Crandall, and that he was introduced to him, soon after he came, by a person interested in botany, as a man well acquainted with that science. Witness was fond of hunting after wild flowers, and proposed to take excursions with Dr. Crandall. They went out botanizing, six, eight, or ten times together. Their conversation was confined to that subject, and witness had no reason to suppose that Dr. Crandall had any incendiary pamphlets, or was at all engaged in the circulation of them. His conduct, so far as he had seen him, was that of a gentleman. He never knew him to converse with any negro. He never had any pamphlets with him, to his knowledge. Dr. Crandall's knowledge of the science was far beyond that which witness professed to have. _Ward B. Howard_ stated that he had known Crandall some years: at least for seven or eight years. Witness was then resident at Peekskill. His reputation was good, and he never heard that he was an abolitionist. Witness himself had no fancy for abolitionists. There was no society of them at Peekskill. Crandall resided in Peekskill seven or eight years, and had, as he understood, attended the medical lectures at Philadelphia, and received a diploma there. He had brought letters of introduction to witness when he came to Peekskill, with the view to settlement there. Dr. Crandall was actively engaged as an agent for the temperance society. Witness would not now know the handwriting of the traverser. He might know the signature, but not the general handwriting. _Jackson O'Brown_ was living at Peekskill when Dr. Crandall first came there. He boarded with him nearly two years, and had an opportunity of seeing much of his character; a great part of the time he roomed with him. The witness never heard that he was engaged in the abolition societies, though he knew he was an active member of the temperance society. _Henry Gaither_ said he was in Linthicum's shop at the time when Dr. Crandall was arrested. That an hour before he had heard that the officers were in pursuit of him. He saw the officers, Robertson and Jeffers, enter the office; and noticed a crowd gathering around it. He asked Jeffers, as soon as he came out, what he had discovered, and Jeffers, in reply, said he had found more than he expected, and had taken 150 or 160 pamphlets. There was much excitement then in the vicinity. Witness was then himself excited. When Crandall came out, witness was apprehensive that he would be wrested from the officers by the people. Oyster came in, and witness asked him if he had seen any pamphlets. He said yes, but not more than two or three. Witness remarked, that Jeffers said he had seen and taken 150 or 160. Oyster replied, Jeffers is a liar. Some conversation followed, in which it was suggested that attempts might be made to prejudice the public mind against Crandall. Witness had since met Jeffers, on the Avenue, and spoken with him on the subject. Witness remarked to Jeffers, the poor fellow has suffered enough by so long a confinement, and Jeffers assented to the remark, and added that he believed Crandall to be innocent. _Jared Stone_ was acquainted with Crandall, who lived three years in witness's family, and eat at his table, in Peekskill. Crandall was a physician who obtained a good reputation in that part of the country, and it continued unblemished. He never was known to have any abolition papers, or to say any thing in its favor, but was, if any thing, opposed to it. _Mr. Wilson_ was present at the time spoken of by Mr. Gaither, and said one of the officers came out and said he had discovered more than he expected, and remarked, my hopes are more than realized. He could not recollect exactly the number of papers the officer said he had found, but thought it was one hundred or a hundred and twenty. Some one in the crowd said "we ought to take the damned rascal and hang him up on one of the trees opposite." The witness then went away. _Mr. Judson_, Representative in Congress from Connecticut, had known Crandall from his boyhood. Crandall studied with witness's family physician, and acquired a good reputation; nobody stood better in the neighborhood. After he had finished his education he removed to Peekskill, since which witness had been in the habit of seeing him frequently; and he had always known him as a peaceable citizen. The precise year when Crandall was admitted he could not recollect, but it was about 1827 or 1828. Witness had not seen him for two years till he saw him here in prison, and had never heard aught against him till now. Mr. Judson also testified, that the prisoner was a brother of Prudence Crandall, and that at the time of the difficulty with her and her school for blacks in Connecticut, he met Crandall on board the boat on his way home from New York; that he talked with him about that school, and the prisoner said he was going to break it up; that he did not know as he should be able to do it, for his sister Prudence was obstinate, but his other sister, who was with her, he knew he could get away. Crandall then continued home with the witness, and exerted himself with as much zeal as any one could to break up the school. _Dr. Sewall_ testified that the traverser came to him some time in the spring to get a license to practice in the District, and showed him two letters of high recommendation. He had some conversation with Crandall upon subjects of science and upon his knowledge of medicine and surgery, and formed a high opinion of his talents and acquirements. He advised the defendant by no means to abandon the practice of his profession for entering upon botany or chemistry, but if he could do that without interfering with practice, it might do; he thought him too well qualified in the profession to give it up. Crandall also showed the witness a diploma, which was regularly signed, and he gave a verbal license to practice, and said at the meeting of the Board he would have a regular license made out. He had no reason to believe, from his conversation with the prisoner, that he had any object in view except the pursuit of his profession. All the stories that he had talked upon the subject of abolition with witness, and given him Anti-Slavery papers, were mere idle talk. _Mr. Howard_ said he was sheriff of Winchester county, where Crandall lived, and identified the handwriting of signatures to a letter of recommendation which Crandall brought with him, and which was allowed in evidence. All the signers were respectable men. Witness thinks he should have known if any Anti-Slavery Society existed there--but he knew of none. He also remembered that Crandall delivered lectures on chemistry there, and he attended them. _Mr. Ward_, Representative from the district where Crandall resided, knew that he had lived there seven or eight years, and that he had a high reputation as a respectable man, and a good physician. _Mr. Austin_ was now a resident in Georgetown, but formerly lived in Peekskill, where he knew the prisoner, who lived in his family three years. He came then in consequence of having raised up Mrs. Austin from a dangerous sickness. Witness was a lawyer, and knew Crandall's reputation to be high as a physician and surgeon, far and near. Witness was President of a Temperance Society, and Crandall was Secretary; he did not know of any Anti-Slavery Society, and did not know or believe that the prisoner belonged to any, or had any thing to do with them. Crandall came on at his request to accompany Mrs. A., who, with her two children, were always severely sick in travelling; and returned home soon after, when he came back again to stop here to teach botany. He came to witness's house on his return, and was taken sick soon after and confined to his room. Witness was not a subscriber for the Emancipator, though he understood one of the numbers in court was addressed to him. He never saw any abolition papers in Crandall's possession. If he had, they would have attracted his attention. Witness did not know how the large box of books and papers came on, but supposed they came by water when Crandall came the second time. He could not say distinctly, but he thought a Mr. Dennison, an abolition agent, once left some abolition pamphlets at his house for himself, and some for Crandall. He could not identify them in court as the same, and he could not swear whether the endorsement on them was in Crandall's handwriting or not. _Mrs. Austin_ said she had known the prisoner as long as Mr. Austin, and that his conduct in her family was irreproachable. She remembered Mr. Dennison's having left pamphlets for Crandall and her husband, but could not say those in court were the same, but they were similar. Crandall came at her husband's request, to accompany the family, because they were sick in travelling. He did not wish to come further than New York, and would not consent to come further than Philadelphia; but as Mr. Austin did not meet them there, he kindly came on to Washington. She was cleaning up the house, preparatory to leaving it, and gave Crandall the large box; and asked his permission to put into it his books and papers. These pamphlets were lying as waste paper in the garret, and she threw them with others into the box. Saw that some of them had writing on, but didn't know of any with writing on in the trunk. The box was sent round by water, but he brought the trunk when he came on the second time. He did not carry it to the house when he arrived at night, but it was sent over in the morning. Crandall was immediately taken sick, and witness frequently went to the trunk for various purposes, and saw a package nicely done up, which she supposed to be books. The package remained just as it was tied up at the bookstore, till six or eight days before the prisoner's arrest, when she had curiosity to know what it contained, and he consented that she might open it. Some conversation was held between witness and prisoner, before and after opening, which the court refused to admit in evidence. Mrs. Austin went on and testified, that she did not tie up the package again, but left it, and she saw it repeatedly in the same state up to the time of prisoner's arrest. She also saw several Emancipators in the house, and one or two tracts sent by mail, which she used or destroyed as waste paper. _Bradley_ here offered to put in two letters and a deposition from the man who gave Crandall the package in New York. _Key_ objected that it was not legal evidence. _Bradley_ knew it was not, but the witnesses were beyond the reach of the court--they could not be forced to come and testify; and had distinctly declared that they were afraid to come into the District. He had last term requested the District Attorney to join him in taking their depositions, in consequence of the circumstances, but having been refused, he had gone on and taken them exparte, and he hoped they would be allowed to go to the jury. _Key_ was willing to admit any thing reasonable, but this testimony was clearly inadmissible. _The Court_ said, by the rules of evidence, it could not be given but by consent. _Mr. Carlisle_ opened the summing up for the prosecution, and remarked that his was observed by the opposite counsel to be the only case of seditious libel ever brought before this court, and I will add, gentlemen, that the decision of it may determine whether or not it may be the last;--whether or not this traverser may return to his fellow laborers in iniquity, and inform them that _here_ he has found the gates wide open, and the way all clear for the propagation of their libels and their plans. It has been truly said that this topic is one of excitement all over the country. Under these circumstances this traverser may congratulate himself upon the opportunity of a fair and full trial, and that he has not been the victim of summary justice. But, gentlemen, let justice lose nothing of its proper efficiency by being administered with coolness and deliberation. The opposite counsel say that the charge is grave. Aye, gentlemen, it is so, but the proof is full. The offence charged is one of a fatal, devastating, and, beyond all power of palliation, most horrid character. These libels are not like common libels, which tend to bring individuals into discredit and disrepute. It is an offence of which the like is not contained in the annals of criminal jurisprudence, peculiar to the state of our society, and in enormity equal to all other crimes combined. An opulent and extensive society send out their emissaries and commission and enjoin them to scatter these infamous productions in the highways and by-ways; to proclaim them from the house tops, and whisper them in the chimney corners; to teach to all, high and low, that slaveholding is man-stealing; and yet they mean no such thing as breaking the peace, and abhor all violence and tumult. Does the preaching such language to slaves tend to pacification? Mr. Carlisle was here commenting upon the nature of the agents employed for these unlawful purposes, to show that educated men, such as Dr. Crandall, were the kind naturally to be selected, and was further proceeding to examine the evidence as applicable to the laws, and, in his opinion, conclusively establishing the guilt of the traverser, when extreme physical debility and indisposition prevented him from proceeding. _Mr. Bradley_ then commenced summing up for the defence. He said the nature of the charge was such that it was almost impossible to set aside the prejudices which had been cherished from youth up, and which were so natural to men of this section of the country; but he felt confident the jury would give him a patient hearing, and judge correctly after a careful consideration of the case. He then gave a statement of the points of the evidence, upon which there was no dispute; such as--That the prisoner allowed one pamphlet to be taken by Mr. King; that he was found here with a number of other papers; that some came round in a box by water; and that others were given him in New York, and brought on in his trunk. He wished to draw a distinction between the kinds of papers. It was proved that a bundle of papers were found, and they were here in court; but the contents were unknown; whether good or bad the jury had no right to infer. A large number of papers were found, some of which were brought away and the others were left. That was all the jury had to consider, except in regard to three numbers of the Anti-Slavery Reporter, five numbers of the Emancipator, and the late pictures which were cut from a work, and represented in contrast two modes of education--one where children were whipped, and the other where they were taught more mildly by means of books. He would not stop now to consider the declarations said to have been made before the magistrate. Nothing could be more unsatisfactory and uncertain evidence than these examinations. The very fact that a man is accused throws him off his guard, and he may say what he does not intend, or which, if he did, in the midst of excitement the witnesses might not properly understand or correctly remember. It was said there were contradictions in his statements, but that supposition arose entirely from a mistake of one of the justices. The other understood it differently and saw no mistake at all. It respected the manner in which he brought on the books--one understood him to say that they were all given to him in New York, and that he brought them here, and they were all in the jail but about a dozen; and then, at another time, he said that he had some of them a long time. The other justice understood him to say that all that he brought into the District were there, and that they were all he brought from New York, except about a dozen, which he supposed he had left by the way. Neither of these suppositions were right. When he said they were all of them, he meant to say all he brought from New York; that he had distributed none, for even the one he loaned to Mr. King was taken by the prisoner from Linthicum's shop, and was then in Mr. Key's possession, though they supposed it was lost; and when he referred to about a dozen, he meant that he brought them all with him except about a dozen, which came in a box by water. It had been said that he admitted he had circulated a dozen; and yet the United States' witnesses prove that he denied having circulated any, and from the first disapproved of putting them in circulation. When the learned counsel asked why the persons were not brought, to whom he had given the dozen, to show that they were respectable men, he should have remembered that the testimony was all against such an idea; and that, if he had distributed any, the zeal and perseverance of the District Attorney and the officers would have discovered evidence of it. It was also asked why the person who gave the bundle to him in New York was not brought to testify in his favor? as if the criminal wretch who had palmed off these incendiary papers upon an innocent man, without his knowledge, could be brought here to testify, when he was beyond the jurisdiction of the court, and had declared that he was afraid to come. He had requested the Attorney to have a deposition taken, but he refused; and when he was spoken to, he threatened a prosecution, and said he should like to see him; he wished he could get him. The Attorney now says he would be safe; perhaps so from him; but there are here, as elsewhere, hundreds of base cowardly scoundrels, who are willing in mobs to hunt down any one against whom they conceive a prejudice; men who dare not face a man alone, but who, backed by a mob, are willing to assail an individual without knowing any thing of his guilt or innocence. Mr. B. then commented upon the character of the libel charged, and read the first count. The first paragraph, he argued, contained no incendiary language, unless it was to call slavery a crying abomination. He had not known before that those words were calculated to stir up insurrection. People were in the habit of hearing them daily from the pulpit, and he never knew that they became seditious on account of it. The whole of the matter was a controversy between the Anti-Slavery Society and the Colonization Society, in relation to the expediency of their different measures; and if any body could make any thing libellous, he must have intellectual spectacles stronger than those with which Newton looked at the stars. In the next paragraph slavery is called "unrighteous," which was the great offence charged there. If this was a libel, he should show that Arthur Tappan & Co. were not singular in the guilt of libelling; for that fathers of the church in a slave state had called slavery unrighteous too, and that some of the most eminent of our patriotic Southern politicians had used far stronger and more exciting language. This was all a controversy whether it was proper that provision should be made that no slave should be emancipated unless provision was made for sending him out of the country; and the writer contends that to make sending a man out of this country, where he was born, a condition of releasing him from bondage, in which he was forcibly held was a moral absurdity; and to say so might be libellous, but he could not understand how it should be so. Some of the jury would recollect when a discussion of this topic took place in the Legislature of Maryland upon a proposed law to the same effect, and they would remember that similar arguments were used there. The next passage was an extract showing the treatment of slaves in another country, different from ours, where they have no law to protect the persons of slaves; and could not apply to the condition of any portion of our people. It could not be libellous to have the book giving the original journal of the traveller, and, if it were not, he did not see how any evil or excitement could be produced by this extract. He came next to the passage in the second count, which was an extract of a speech, in which the orator tried to say something grand; but it amounted to no more than had been said by slaveholders themselves; and though the Attorney said it with an amusing emphasis, yet he would show stronger language, to the same purport, in the writings of Mr. Jefferson and of Mr. Archer, of Virginia, which had been approved by all who heard or read them. The whole argument used in the Anti-Slavery Reporter, he contended, was mild and temperate, more so than could be expected, when the different habits and modes of thought of the people from whence they came were considered--a people who, from infancy upward, had heard nothing but the accents of freedom, and had never lived in a country where they could actually know the practical effects of our system of slavery. The example was set them by the ablest writers here, and if we publish and send to them similar writings, is it to be considered wonderful that, in their discussions, they should adopt it. Their argument is, that slavery may increase to be an evil which, by and by, cannot be remedied without violence and bloodshed; and it is addressed to men who have the power and the influence to apply a remedy now. The same arguments were published here by the Colonization Society, which does honor to human nature, and were founded on extreme necessity. He read numerous extracts of books to show that similar expressions to those in the libels charged, were not considered blameable if uttered or published at the South; and denied the right of the District Attorney to take particular words, here and there, and hold them up to fix the character of the paper, without regard to the connexion in which they were used; and he said that if Crandall was indictable for the language and meaning of the Anti-Slavery Reporter, then every member of the Colonization Society were liable to indictment. [It may be proper to introduce one or two extracts, that the reader may know the character of the papers read. The following are taken from an address to the Colonization Society of Kentucky, by _R. J. Breckenridge_.] "There are some crimes so revolting in their nature, that the just observance of the decencies of speech deprives us of the only epithets which are capable of depicting their enormity. Every well regulated heart is smitten with horror at the bare idea of their perpetration; and we are uncertain whether most to loathe at the claim of those who habitually commit them to companionship with human nature, or to marvel that the unutterable wrath of heaven doth not scathe and blast them in the midst of their enormities. Let the father look upon the dawning intelligence of the boy that prattles around his knee, the pride of his fond heart, and the hope and stay of his honest name; and then, if he can, let him picture him in distant bondage, the fountain of his affections dried up, the light of knowledge extinguished in his mind, his manly and upright spirit broken by oppression, and his free person and just proportions marred and lacerated by the incessant scourge. Let the husband look upon the object in whose sacred care he has "garnered up his heart," and on the little innocent who draws the fountain of its life from her pure breast, recalling, as he gazes on one and the other, the freshness and the strength of his early and his ardent love; and then if he be able, let him picture those objects, in comparison with which all that earth has to give is valueless in his eyes, torn from him by violence, basely exchanged for gold, like beasts at the shambles, bent down under unpitied sorrows, their persons polluted, and their pure hearts corrupted--hopeless and unpitied slaves, to the rude caprice and brutal passions of those we blush to call men. Let him turn from these spectacles, and look abroad on the heritage where his lot has been cast, glad and smiling under the profuse blessings which heaven has poured on it, let him look back on the even current of a life overflowing with countless enjoyments, and before him on a career full of anticipated triumphs, and lighted by the effulgence of noble and virtuous deeds, the very close of which looks placid, under the weight of years made venerable by generous and useful actions, and covered by the gratitude and applause of admiring friends; let the man-stealer come upon him, and behold the wreck of desolation! Shame, disgrace, infamy, the blighting of all hopes, the withering of all joys; long unnoticed wo, untended poverty, a dishonored name, an unwept death, a forgotten grave; all, and more than all, are in these words, _he is a slave_! He who can preserve the even current of his thoughts in the midst of such reflections, may have some faint conception of the miseries which the slave trade has inflicted on mankind. I am unable to state with accuracy the number of the victims of this horrible traffic; but if the least dependance can be placed on the statements of those persons who have given the most attention to the subject, with the best means of information, it unquestionably exceeds ten millions of human beings exported by violence and fraud from Africa. This appalling mass of crime and suffering has every atom of it been heaped up before the presence of enlightened men, and in the face of a Holy God, by nations boasting of their civilization, and pretending to respect the dictates of christianity. The mind is overwhelmed at the magnitude of such atrocity, and the heart sickens at the contemplation of such an amount of human anguish and despair." "The legislative acts which, with a cool atrocity, to be equalled only by the preposterous folly of the claim they set up over the persons of God's creatures, doom to slavery the free African the moment his eyes are opened on the light of heaven, for no other offence than being the child of parents thus doomed before him, can, in the judgment of truth and the estimation of a just posterity, be held inferior in heinousness only to the first act of piracy which made them slaves. It is in vain that we cover up and avoid such reflections. They cling to us, and earth cries shame upon us that their voice has been so long unheeded. The free Lybian, in his scorching deserts, was as much a slave when he rushed, in the wild chase, upon the king of beasts, as is his unhappy offspring before our laws cleave to him. God creates no slaves. The laws of man do oftentimes pervert the best gifts of nature, and wage an impious warfare against her decrees. But you can discover what is of the earth and what is from above. You may take man at his birth, and by an adequate system make him a slave, a brute, a demon. This is man's work. The light of reason, history and philosophy, the voice of nature and religion, the Spirit of God himself, proclaims that the being he created in his own image he must have been created free." "It can be no less incorrect to apply any arguments drawn from the right of conquest, or the lapse of time, as against the offspring of persons held to involuntary servitude. For neither force nor time has any meaning when applied to a nonentity. He cannot be said to be conquered, who never had the opportunity or means of resistance; nor can time run against one unborn. Those who lean to a contrary doctrine should well consider to what it leads them. For no rule of reason is better received, or clearer, than that force may be always resisted by force; and whatever is thus established, may, at time, be lawfully overthrown. Or, on the other hand, if error is made sacred by its antiquity, there is no absurdity or crime which may not be dug up from its dishonored tomb, and erected into an idol around which its scattered votaries may reassemble." Mr. Bradley then went on to argue upon the tendency of the libels, and contended that they were not calculated to excite sedition. They are not addressed to the colored people, nor adapted to excite insurrection and revolution among them. They are calm appeals to reason, designed to produce measures to arrest a danger which they think threatens them, in common with their brethren of the South. He next adverted to the law of publication. There were two grounds of publication--one is legally to be inferred--the other actually proved. The monstrous doctrine is contended for by the prosecutor, that if a man has a libel in his possession, if it was publicly circulated in the country, the possession is _prima facia_ evidence that he put it in circulation. To show the absurdity of such a position he took a case of a favorite popular libel, which would be all sold in a day, and said that it would be impossible to find an impartial jury to try a case under such a law--because it would not be easy to find twelve men drawn as jurors who would not have been possessors in some way of the libel, and of course equally criminal. Having a written copy of a published libel in one's own handwriting may be _prima facia_ evidence; but it is not so with a printed copy. The publication must be brought home to the defendant. An actual publication is when the party puts the libel in circulation--when he gives it to a third party, either by himself or an agent, for the purpose of having it put in circulation. The evidence in this case, he contended, afforded not only no proof, but no presumption that he published the libel. The one copy he allowed King to take was not given to be circulated. He had been warned of the danger, and had avowed his opposition to having such papers put in circulation. There could be no pretence that it was given to stir up mischief; and if any one was responsible for any evil effects, supposing any to accrue, it was Mr. King who had shown it, and left it exposed openly in a shop. But he argued that the loan of the paper to King was simple possession--he had afterwards taken it back from the shop, and no evil had been done or intended. The intent, he said, must be gathered from the circumstance of the publication, and not alone from the libel charged; and he then commented upon the manner in which this paper was taken by Mr. King, and upon his character as a substantial, respectable man, who had just given the prisoner a warning, to show that no presumption could arise of an intent as charged in the indictment. The words "read and circulate," upon which so much stress had been laid, showed no evidence of an intent to publish the pamphlets here, for they were put on two years before in Peekskill; and even the having them brought here was no act of the prisoner's, nor does it appear that he knew they were in the box. He went at length into an examination of the evidence tending to show Crandall's good character, and the accidents which brought him here and induced him to make it his permanent residence. The trouble and excitement, he said, had not been owing to the prisoner or to any act of his, but was entirely owing to the misapplied zeal of the officers, and to their indiscretion and stupidity. He said he had gone over all the evidence of publication, and it was certain that no other publication had been made by him, for the District Attorney would have brought proof of it; if one had been dropped ten fathoms deep, into the vilest well, some one would have been found to fish it up. He traced the course of the prisoner from his boyhood to college, and to the study of his profession--from that to his settlement at Peekskill; and urged upon the jury the consideration of his uniformly sustained character, and of his blameless life. He followed him with Mr. Austin's family to this city, and afterwards shewed his course to New York, when the important bundle of abolition tracts was palmed upon him; and then followed him here with those papers, which he did not even open, and of which he could not have known the contents, till he was informed by Mrs. Austin. He had shewn that no Anti-Slavery Society existed where he came from, and that he had never been a member of any such society. He had also shewn his acts, in connection with his good character and principles, when he went to Connecticut to suppress the school founded by Arthur Tappan & Co., which he thought an improper and dangerous institution; and though he has always avowed himself to be opposed to slavery, yet he has always been as firmly opposed to excitement. He had traced him here, and shewn his declarations and principles here, and the business in which he was engaged. He said he had been satisfied, early in the trial, that there was no ground for the prosecution--that the counsel for the United States had not made out a case which would satisfy themselves or you; but it was necessary to go on with the trial, for the satisfaction of others. The public were anxious to have the whole truth before them; and he was happy to believe that the jury would come to the conclusion that the Government had wholly failed, upon their own evidence, to make out a case which would justify a conviction of the prisoner. _Mr. Coxe_ addressed the jury. He was not aware, he said, that during his whole career as a professional man, he had ever entered upon the discharge of his professional duties with feelings of more anxiety than in the present case. The interest which he felt in the result was not limited to the consequences which might befall the traverser--an individual to whom he was an entire stranger; but principles had been advanced, and a course of proceeding adopted in this case, which involved results of the most general and momentous character; results which may to-morrow, and through all time, be brought to bear upon each one of us and upon our posterity. The cause now on trial was the first of the same description which, to his knowledge, had ever been brought up for judicial decision. It was an indictment for a seditious libel at common law. Mr. Coxe here adverted to a portion of our history, during the administration of the elder Adams, when we were threatened with a foreign war and internal commotion, and when it was believed that a resort to unusual means of protection from impending peril was necessary. At that crisis was passed the act of July 14, 1798, commonly called the Sedition Act, by which it was provided that any person guilty of uttering a seditious libel against the Government of the United States, with intent to defame the same and bring it into contempt and disrepute, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years. The act was denounced as tyrannical, oppressive, unconstitutional, and destructive of the liberty of speech and of the press, and it was made one of the principal charges against the party in power of that day, and was the chief means of its overthrow. During the short period of the existence of that odious law, some few prosecutions were instituted under it against obnoxious individuals; and these were the only cases of prosecution for seditious libel that had ever occurred in this country. In the present case, an attempt was made to apply the well known principles of the common law to the same improper and unconstitutional end. The case was new to our courts, and was of rare occurrence in the courts of England. Without being a prophet or the son of a prophet, Mr. Coxe said he would venture to predict that, if the doctrines which had been urged in behalf of this prosecution, and the proceedings which had been here justified by the District Attorney, should be established as lawful, the seeds will have been sown from which will be reaped, for us and for our children, a harvest of woe and disaster. He could not, therefore, but deeply feel the share of responsibility which devolved upon him in the management of this case, and in the vindication of the great principles of constitutional liberty in which he had been nurtured and to which he was bound to adhere. If, upon such a warrant as was issued against this traverser, any individual in this community might be arrested, his papers seized and examined, his most private correspondence exhibited to the public gaze, and if all this proceeding was to be warranted by the laws under which we live, then, gentlemen, said Mr. Coxe, this District is no place for me. He would seek some place where he would be safe from such outrages--some place where the principles of civil liberty are still understood and cherished. If, upon testimony thus illegally obtained from him, without having been guilty of any overt act against the peace of the community, he could be indicted for sedition, incarcerated for eight months preparatory to a trial, and then be told that for having such publications as the traverser had in his private custody, under his own lock and key, or for loaning one to an intelligent friend, for his single perusal, he should be exposed to conviction and punishment for sedition, then he would, to escape such tyranny, expatriate himself, abandoning a land no longer free. But this was not, and could not be the law of this District. What was the case? Let us go back to the 10th of August last, when this warrant was placed by a justice of the peace, acting under the advice of the District Attorney, in the hands of the officers who served it. The only foundation of the prosecution was simply this: Mr. King, while visiting the office of the traverser, with whom he was in habits of intimacy and free intercourse, saw there lying about the room, amongst various works on different branches of science and the arts, three pamphlets, which were taken from a box containing surgical instruments, books on surgery, and botanical preparations, in packing all which the pamphlets had been with other papers employed. Mr. King casually taking up one of these pamphlets, read its title page, and remarked that this was too far South for such things. He asked permission of the traverser to read it, which was granted, and up to the 10th day of August, a month afterwards, this was the extent of Dr. Crandall's offence. The affidavit in the warrant did not even go so far as this, in any positive charge. William Robinson, who made the affidavit, deposed that he had seen in Georgetown an incendiary pamphlet having upon it the name of Dr. Crandall, and that he, the deponent, had been informed and believed, that Dr. Crandall was engaged in distributing and circulating such pamphlets. The only positive averment in the affidavit was unimportant, and, if important, was untrue. Mr. Robinson, when examined, had no recollection of such a pamphlet, and there was abundant evidence to prove that the pamphlet loaned to King was now in court, and there was no such endorsement on it. He had not, therefore, seen a tract with Dr. Crandall's name upon it. That Dr. Crandall was engaged in the circulation of this or similar pamphlets was equally unsupported by evidence. Upon this allegation, so flimsy and so false, the Justice, acting under the advice of our learned District Attorney, issued the illegal and unconstitutional precept which he held in his hand. By this warrant the constable was directed to search and examine the traverser's private papers, to select such as might appear to be incendiary and to bring them and the traverser before some justice of the peace, to be dealt with according to law. This illegal process, thus illegally executed, had been justified by the District Attorney, who had avowed himself ready, whenever required, to prove that it was lawful. On the other hand, he, Mr. Coxe, pledged himself, on all occasions, and whenever the question might be presented for argument and decision, to brand it as tyrannical, oppressive, illegal, and unconstitutional. The next evidence for the prosecution was found in the pamphlets thus stolen, and the possession of them by the traverser was alleged as proof of their publication by him. Against this false and more than inquisitorial doctrine, he solemnly protested. Let the accidental possession of a denounced pamphlet be made proof of its utterance and publication by the possessor, and let the new process of detecting and bringing to light that obnoxious pamphlet be established, and what man, in the whole community, can be safe in the enjoyment of his personal rights? May not any man be subjected to be treated as a felon, upon the instigation of private malice, or party animosity, or religious rancor? How easy would it be to find a magistrate at any time, who, confiding in the learning and experience and official character of the District Attorney, will, at his instance, grant such a search warrant against any individual?--and how easy will it not be to find constables, who, in the execution of it, will raise a hue and cry, and an excitement against the individual at whom the process is levelled?--so that if he escape the tyranny of the law and of the officers of the law, he may, nevertheless, fall a victim to the blind and ignorant violence of popular fury! Two things, Mr. Coxe said, must combine to bring the traverser, in this case, within the law, if indeed there was any law to meet the case. The publications themselves must be calculated to excite insurrection among the blacks, and contempt of government among the whites; and the mode and manner of the publication must be such as to justify the supposition that the publisher intended to produce this effect. If both of these facts could not be proved, the prosecution must fail, and the traverser be entitled to a verdict of acquittal. Admitting that the character of the pamphlets was incendiary, and as mischievous in their tendency as the District Attorney may, on this occasion, be pleased to represent them, still it cannot be shown that the traverser was guilty of any injurious or malicious dissemination of them. The loan to Mr. King was the only instance proved of distribution, and could that be considered malicious? Mr. King was admitted to be an intelligent and discreet citizen, without any sympathies with the abolitionists, and he could read one of these pamphlets with as little injury to the public welfare, as could this court and the many individuals to whom the District Attorney had been reading them. If the traverser had been criminal, Mr. Key had been still more so. If Dr. Crandall is punishable for yielding a reluctant and hesitating consent to the request of Mr. King to be allowed to take one of these pamphlets and read it, to what condemnation has Mr. Key subjected himself by forcing these same tracts, and particularly the worst passages he could select from them, upon the attention of so many individuals? But another ground had been taken against the traverser. He was charged with being a northern man; a native of Connecticut, and a resident of New York. Have we then, said Mr. Coxe, lived to see the day when in a court of justice, in the federal city, under the very eyes of Congress, and of the National Government, it can be urged against an individual arraigned at the criminal bar, as a circumstance of aggravation, or as a just ground for suspicion, that the individual comes from the North or the South, from the East or the West? But we were told, that the Northern men were interlopers and intruders amongst us. He protested against the use of such language, especially in the District of Columbia, which was dependant for its very existence upon the bounty of Congress, and which owed so much to the liberal policy extended to it by Northern men. Mr. C. admitted that there were in the North some vile fanatics, who, under the guise of purity and zeal, had attempted to scatter firebrands amongst us; men who propose to accomplish the worst ends by the most nefarious means; men who, under the professions of christian sympathy and humanity, seek to involve the South in all the accumulated horrors of a servile war. These men were, however, few in number and contemptible in resources. On the other hand, there were men at the South who, for base motives, make themselves auxiliaries to this excitement, and endeavor to alarm and agitate the people of the South by misrepresentations of the general feeling and policy of the people of the North. With neither of these two classes of fanatics had the people of this District any common interest. As a citizen of this District, he protested against making it the arena for the operations of these incendiaries. It was for this jury to resist the first attempt, now made, to render our courts of justice accessory to their designs. He would demonstrate from the evidence that the traverser had no part in producing the excitement which prevailed in this District during the last summer. Dr. Crandall was not even the innocent cause of it. It was an excitement got up against Crandall, and not by him. When the constables went to his lodgings and office with their warrant, there was no excitement nor commotion among the people. All was calm, and but for the constables and their process, would have remained so. But they published in the streets of Georgetown the nature and object of their errand, and collected a number of individuals who were curious to see the result of this extraordinary search. One of the constables, Jeffers, after leaving the office of the traverser, goes to Linthicum's shop, and there proclaims to the assembly that "they had found more than they expected;" that "their hopes were more than realized." The constable then goes on to proclaim that he had found a large number of incendiary pamphlets, 150 or 160. Then ensued an excitement, and a cry was at once heard, "carry him across the street and hang him to the tree!" Such was the origin of the excitement which pervaded our community, and which the District Attorney lays to the charge of the traverser. The testimony was silent as to any act of publication by the traverser of more than one of the publications referred to in the indictment, and in that he was shown to have had no improper design. We were told, however, that the possession was proof of criminal design. Was it to be endured that, without authority of law, and contrary to all law, private papers should thus be wrested from the possession of an individual, and then be offered as a proof of malicious intent and malicious publication? In any prosecution for a libel it was necessary to prove a malicious publication. Malice may be inferred to an individual from the simple act of publication. But in cases of seditious libel, it was necessary, in order to infer malice, to prove that the publication was made to such persons as that the public could be injured by it. His case being destitute of such proof, the traverser was entitled to a verdict in his favor. Mr. Coxe went into a minute examination of the testimony to prove that the pamphlets were brought innocently and without intent to circulate them. Those in the box were brought with other papers, and were packed by a lady, for the purpose of wrappers, &c., for plants. The pamphlets given to him in New York, by a person from whom he had purchased a book, he had received without any knowledge of their contents, and the package remained unopened in his trunk until it was taken by the constables. No mischief had been produced; no insurrection raised; no human being injured, except the unfortunate traverser himself, whom, after an incarceration of eight months, the prosecutor wishes you still further to punish. This was a reproach to our community; a burlesque of our courts of justice; it had no support in principle or reason. Was this the boasted intelligence, spirit, and generosity of the South! From a review of the testimony it would be found that the traverser came into possession of the papers innocently; that he retained them innocently; and that they were never distributed by him. Mr. Coxe then proceeded to maintain, at length, that, granting the publication, there was nothing in the quotations from the pamphlets incorporated in the indictment from which a criminal intent could be inferred. If there was no criminal matter in the extracts, then there was no crime charged. He went on to prove that they did not contain a single sentiment or expression on the subject of slavery, and its political, moral, and social results, which had not also been used by slaveholders; by the statesmen, and lawyers, and writers of the South. Mr. Coxe proceeded to compare the language charged as seditious in the indictment, with passages from colonization speeches made by Mr. Key himself; by Mr. Archer, Mr. Custis, Bishop Smith, General Harper; by Patrick Henry, in the Virginia Convention; Mr. Pinckney, in the Legislature of New York; by Mr. Jefferson, in his notes on Virginia; by Judge Tucker, in his notes to Blackstone's Commentaries; and by other distinguished gentlemen at the South. Neither he, nor the jury, nor the District Attorney, could distinguish the language and sentiment of one of those parties from the other. If there was any difference it was in this, that the northern publications were somewhat more temperate than the others. The controversy which had grown up between the rival Societies for Colonization and Abolition had given birth to this excitement. Which of them was right, or whether they were both right or wrong, was not now a matter in issue; but he would allude to the fact that the sincerity and personal excellence of the abolitionists had been warmly acknowledged by the amiable Secretary of the Colonization Society, and by one of its most distinguished members and friends, Mr. Gerrit Smith. But the District Attorney denounced the Abolition Societies and Dr. Crandall, whom he alleged to be a member of the American Abolition Society. This assertion was unsupported by testimony, and untrue in fact. One of the constables, indeed, had testified that Crandall, after his arrest, admitted that he was a member of that society; but this was disproved by all the other testimony in the case. Mr. Coxe, without defending the Abolition Societies, here undertook to prove, from various documentary evidence, that there was, after all, but very little difference between the sentiments and objects of the colonizationists and the abolitionists. In conclusion, Mr. Coxe remarked, that if any the smallest injury had resulted from the traverser's sojourn in this District, it was not his fault. He was innocently occupied in professional pursuits, and was quietly pursuing the even tenor of his way. Whatever excitement and injury had grown out of his visit here was solely attributable to the illegal course taken by the prosecutor in procuring his arrest and the seizure of his papers, which were harmlessly reposing in his trunk. With these remarks, and his thanks for the patient hearing afforded him by the jury, Mr. Coxe submitted the case, with entire confidence, to their hands. _Mr. F. S. Key._ I consider this one of the most important cases ever tried here; I wish the prisoner every advantage of a fair trial. It is a case to try the question, whether our institutions have any means of legal defence against a set of men of most horrid principles, whose means of attack upon us are insurrection, tumult, and violence. The traverser defends himself by justifying the libels. We are told that they are harmless--that they have no tendency to produce the horrid results which we deprecate. We have been told that _this_ community has not been endangered. The Emancipator has been read, the extracts from it justified, this prosecution scouted. If such publications are justifiable, then are we, indeed, at the tender mercy of the Abolitionist, and the sooner we make terms of capitulation with him the better. What does he propose for the slave? Immediate emancipation. In one instant the chains of the slave must snap asunder. Without delay, and without preparation, he becomes a citizen, a legislator, goes to the polls, and appoints _our_ rulers. If this be the plan, then am I ready, as the opposite counsel expresses it, to seek refuge in other parts of the United State. Are you willing, gentlemen, to abandon your country; to permit it to be taken from you, and occupied by the Abolitionist, according to whose taste it is to associate and amalgamate with the negro? Or, gentlemen, on the other hand, are there laws in this community to defend you from the immediate Abolitionist, who would open upon you the floodgates of such extensive wickedness and mischief? There are such laws, gentlemen; they are as essential to your prosperity and peace as is the sacred law of self-defence to every individual. But you have heard it denied that there are such laws; that these pamphlets are incendiary; and this prosecution is likened to those under the sedition law--a law reprobated and repealed--and hence we may infer that a man may publish what he pleases, however seditious and insurrectionary it may be. Not so. The repeal of the sedition law left the common law, by which these offences always were punishable, in full force; and, gentlemen, it is well known that the principal argument against the sedition law was, that the offences which it punished were sufficiently provided for already by the common law as it stood. But the traverser is not content with acting merely on the defensive. It appears that he is a _persecuted innocent man_; upon an illegal warrant, without proper evidence, attacked, _robbed_, put in jail; all for having a few harmless publications about him. Why does not this _persecuted_ man bring his action for false imprisonment? Why do not his counsel advise it? The warrant was issued upon probable cause on oath. The magistrate was bound to issue it, but it made the constable the judge of what were incendiary papers! Yes! and had the constable have taken any other course he would have been responsible to the traverser for so doing. But carry out the law as expounded on the other side. Here's a counterfeiter caught, with his tools, plates, &c., all found upon a search for stolen goods. The gentleman would bring him before a magistrate, have the warrant quashed, his _goods_ returned to him, and should the articles, thus found, be used in evidence against him, it would be horrid, tyrannical, oppressive, shocking, and enough to make a man runaway from a country where there are such laws, and find refuge in some other. Gentlemen, if in searching for stolen goods you find evidence of counterfeiting, you may use it for the purpose of convicting the culprit of either offence. But the papers were safe in Dr. Crandall's trunk. Yes, all were there and safe, but those taken out and circulated, exactly as the case would have been had they been counterfeit bank notes, and not incendiary pamphlets. Gentlemen, did he not give Mr. King one, because he thought that he _would not_ mention it? And, gentlemen, would he not as likely give to those who _could not_ tell? At every step in our community, he meets such men; he is enjoined in the language of these papers, to give them currency "in highways and by-ways." This man should be glad of the opportunity, by public trial, to exonerate himself from the charges against him. They are distinctly made--the testimony clearly laid down--testimony, in my opinion, ample for his conviction. There are two questions in this case: are the libels charged criminal?--are they proved to have been published by the traverser? I call your attention to the libels and to their tendency. The Colonization Society published them only to denounce them. The Colonization Society only contemplates free negroes, and has nothing to do with slavery. Mr. Key here explained the difference between the papers read by the traverser's counsel and those charged in the indictment, and showed that the Kentucky synod, the grand jury of our District, &c. were for gradual emancipation by the whites, and not violence by the blacks, &c. He thought having a number of these printed libels stronger proof against the traverser than having only one written; commented upon these papers coming through the post office with only one cent postage, as strong evidence that they were sent in here; upon the fact that none of his witnesses testified to his character or pursuits within the last two years; upon the improbability of such a man as Crandall was represented to be, of high character as a man and a physician, leaving Peekskill to go botanizing merely. Mr. K. here commented upon the inflammatory character of the libel alluding to the _colonial_, and, as he contended, the _general_ system of slavery. Mr. K. here read again from the pamphlet, and then added: I am accused of being emphatic; I confess my blood boils when I read the closing sentence of this libel--this taunting us with the torch of the negro at our threshold, and his knife at our throats--this fiendish allusion to the _beauty_ and chivalry of the South; it displays cool and demoniac malignity! Mr. K. then alluded to the pictures, saying that they could be meant only for the illiterate, and tended only to insurrection and violence. Mr. K. animadverted upon the speeches and opinions of eminent Southern men, quoted by the traverser's counsel, to show that their objects were different from those of the abolitionists. Mr. Key remarked, with great severity, on the abstract proposition of the sinfulness of slavery, and the declaration in the libels of the "South being awakened from their snoring by the thunder of the Southampton massacre." He contended that Crandall admitted, in his examinations at the jail, that all the papers he had were sent from New York, and came in a box; and said nothing about having received two parcels; and that he also admitted, that he had all the papers sent, but twelve or thirteen, and argued that those twelve or thirteen were circulated here, amongst improper persons: that if otherwise, the traverser might and could prove to him, to whom they were delivered. He adverted to the slander contained in the libels, that a free person of color might be sold here for jail fees when apprehended as a runaway slave. He commented on the evidence of Mr. Austin, and argued that it was far from showing that the packages were not broken by Dr. Crandall, and part of them taken out and distributed. He also argued that Dr. Crandall took no pains to have the pamphlet returned to him, which he delivered to Mr. King, and did not destroy those he had after hearing that there was an excitement on the subject, and that none of these libels and picture books were used by him, as the other newspapers were, to preserve his plants, thereby proving his disposition to preserve and circulate them. Mr. Key also referred, in corroboration of what C.'s views were, to his declarations to Jeffers' favorable to the amalgamation of the blacks and whites, and also those to Colclazier and Tippet, "that slavery brought the slaveholder and slave into promiscuous sensual intercourse," "and that he was willing that the North and the South should be arrayed against each other." Mr. Key added: This is a subject to us not of indifference. It has been one of much excitement, and we are bound to act in self-defence. If in your conscience, gentlemen, you think the traverser innocent, acquit him. Judge of these libels--the words--the meaning--the tendency--read their endorsement "please read and circulate" in the traverser's handwriting--look at these pictures!--hear his admission, "I gave them to a man who I thought would not tell on me." There are twelve or thirteen of them brought here by him unaccounted for; hear his prevarications in the jail and elsewhere: and if he is an innocent man, cruelly imprisoned under an illegal warrant, and these vile, calumniatory libels, are actually this _innocent_, _persecuted_ gentleman's _property_--_stolen_ from him--then gentlemen return him his property and let him go free. It is with you, gentlemen; I ask of you but to do your conscientious duty. * * * * * The jury retired, and, after a short deliberation, agreed upon a verdict of NOT GUILTY. After which they separated, and returned their verdict into Court the next morning. Transcriber's Note Some of the words in this text were verified by referencing the document "The trial of Reuben Crandall, M.D., charged with publishing seditious libels, by circulating the publications of the American Anti-Slavery Society, before the Circuit Court for the District of Columbia, held at Washington, in April, 1836, occupying the court the period of ten days." (New-York: H. R. Piercy, 1836) The following corrections have been made to this text: Page 6: Removed stray quote marks (If a man in manners) Page 10: Changed choses to chooses (to every body who chooses) Page 14: Changed posession to possession (traverser's possession) Page 18: Added missing end punctuation (Question by Key.) Page 19: Changed Crrndall's to Crandall's (Dr. Crandall's reply) Page 23: Changed did'nt to didn't (he didn't know which) Page 28: Added missing word 'to' (I have to say to them) Page 29: Added missing quote marks ("I hope I may be excused) Page 30: Removed stray quote marks (run her hull under.) Page 31: Changed desarts to deserts (its wide-spread deserts) Page 31: Removed duplicate word 'as' (so far as he had seen him) Page 34: Changed did to didn't (didn't know of any with writing) (Verified by referencing the document mentioned above.) Page 44: Changed posssession to possession (wrested from the possession) Page 48: Changed gentlemen's to gentleman's (_persecuted_ gentleman's) Page 48: Changed Jeffer's to Jeffers' (Jeffers' favorable) 
28750	----	[Illustration: The old courthouse about 1920. Copy courtesy Lee Hubbard.] The Fairfax County Courthouse [Illustration] The Fairfax County Courthouse BY ROSS D. NETHERTON AND RUBY WALDECK Published by the Fairfax County Office of Comprehensive Planning under the direction of the County Board of Supervisors in cooperation with the Fairfax County History Commission July 1977 The following history publications are available from: Fairfax County Administrative Services Fairfax Building 10555 Main Street Fairfax, Va. 22030 703-691-2781 _Beginning at a White Oak.... The Patents and Northern Neck Grants of Fairfax County, Virginia_--Mitchell _Carlby_--Spann _Centreville_: Its History and Architecture--Smith _Colchester_: Colonial Port on the Potomac--Sprouse _Colvin Run Mill_--Netherton _Dunbarton, Dranesville, Virginia_--Poland _The Fairfax County Courthouse_--Netherton and Waldeck _The Fairfax County Courthouse_--1800--OCP--Brochure _Fairfax County in Virginia: Selections from Some Rare Sources_--OCP _Fairfax County Tour Map_--OCP and History Commission _Fairfax Family in Fairfax County: A Brief History_--Kilmer and Sweig _Historic Preservation for Fairfax County_--OCP _Historical Highlights of Bull Run Regional Park_--Cooling _Huntley_--Wrenn _Indices to Selected Maps from Hopkins' Atlas, 1879_--McMillion _Maplewood_--Rafuse _Moorefield_--DiBacco _Mount Air_--Sprouse _Registrations of Free Blacks, Fairfax County, Virginia, 1822-1861_--ed. Sweig _Wakefield Chapel_--Evans * * * * * _Sully: The Biography of a House_--Gamble Book available from the Fairfax County Park Authority * * * * * Library of Congress Catalog Card Number 77-84441 TABLE OF CONTENTS ILLUSTRATIONS ACKNOWLEDGMENTS FOREWORD INTRODUCTION 1 I. FAIRFAX COUNTY'S EARLY COURTHOUSES: 1742-1800 3 II. THE PROVIDENCE COURTHOUSE AND ITS RELATED BUILDINGS: 1800-1860 12 III. THE COUNTY COURT AND ITS OFFICERS 18 IV. THE WAR YEARS: 1861-1865 33 V. THE YEARS OF REBUILDING: 1865-1903 42 VI. THE TWENTIETH CENTURY COURTHOUSE 50 VII. THE ARCHITECTURE OF THE COURTHOUSE AND ITS RELATED BUILDINGS 58 1. The Courthouse Complex 58 2. The Courthouse 73 3. Restoration of the Original Wing of the Courthouse, 1967 87 APPENDIXES A. County Court Clerks: 1742-1976 107 B. Justices and Judges: 1742-1976 108 C. Portraits in the Old Courthouse--Biographies 117 D. Clerk's Office Specifications, _Alexandria Gazette_, July 15, 1853 121 E. Schedule of Reconstruction of the Courthouse, 1967 123 LIST OF SOURCES 127 ILLUSTRATIONS Front Cover--Courthouse about 1920 Back Cover--Court papers, 1976 Five Colonial Justices of the Fairfax County Court: George Washington; George Mason; Thomas, sixth Lord Fairfax; George William Fairfax; and Bryan, eighth Lord Fairfax 2 Cartograph of Alexandria Courthouse Square 6 Surveys of courthouse lot, 1798-1924 15 Civil War view, 1862 32 Hopkins' map of Fairfax Court House, 1879 44 Marr monument's dedication, 1904 49 The Tavern, c. 1932 51 1907 courthouse picture 51 Two aerials of the courthouse and county center complex, 1970s 55 Clerk's Office, 1907 61 County Jail, 1886 63 Police Department, c. 1947 63 Naval Cannon 67 Marr Monument 67 War Memorial plaques 68 Central staircase mural 69 18th century English town and market halls 76 Two-story windows, c. 1966; double row windows, 1967 80 Courtroom remodeled in 1920 82 Central entrance, 1954 addition 83 Floor plans 88 Three views of the gutted courthouse, 1966 90 Two interiors of the courthouse restoration, c. 1968 92 ACKNOWLEDGMENTS This monograph is one of a series of research reports on the historical and architectural landmarks of Fairfax County, Virginia. It has been prepared under the supervision of the Fairfax County Office of Comprehensive Planning, in cooperation with the Fairfax County History Commission, pursuant to a resolution of the Board of County Supervisors calling for a survey of the County's historic sites and buildings. The authors of this report wish to acknowledge with thanks the assistance of Lindsey Carne, Mrs. J. H. Elliott, Lee Hubbard, Mrs. Jean Johnson Rust, and Mrs. Barry Sullivan, who provided information and graphics for this publication. Also valuable were the comments of the Honorable James Keith, Circuit Court Judge; Mrs. Edith M. Sprouse; John K. Gott; Mrs. Catharine Ratiner; and Mayo S. Stuntz, all of whom reviewed the manuscript with care prior to its final revisions. Special thanks are tendered to the Honorable Thomas P. Chapman, Jr. and the Honorable W. Franklin Gooding, former Clerks of the Courts of Fairfax County; the Honorable James Hoofnagle, present Clerk of the Courts; and to Walter M. Macomber, architect of the 1967 reconstruction of the original wing of the courthouse, who granted extensive interviews which filled many of the gaps created by lack of documentary sources. Throughout the entire research and writing of this report, the authors received valuable guidance and comments from the members of the Fairfax County History Commission and assistance from the staffs of the Fairfax County Public Library and the Virginia State Library. Finally, the authors acknowledge with thanks the help of Jay Linard, Mrs. Verna McFeaters, Ms. Virginia Inge, Ms. Irene Rouse, Ms. Annette Thomas, and Ms. Robin Pedlar in manuscript preparation. Ross Netherton Ruby Waldeck FOREWORD _The Fairfax County Courthouse_ is an important addition to the historical record of Fairfax County, Virginia. It brings together in one volume a history of the Fairfax County Courthouses and a manual of the organization and operation of governmental affairs centered within them over the years. A particular insight with regard to the early years of the county is evident. Dr. Netherton and Mrs. Waldeck describe the consequential role the courthouse enjoyed as a social center as they examine the governmental role which made it the centerpiece of Fairfax County. The reader will note that the early Fairfax County officials gained an understanding of the importance of democratic government in our nation through their participation in county government while the people they served developed a sense of community through their interaction at the courthouse. The present courthouse stands as a monument to the governmental and social prosperity Fairfax County has enjoyed. This text documents the story of the building which has stood at the center of almost two centuries of political life in Fairfax County. The extensive footnotes will prove an invaluable aid to scholars exploring the history of the county. History students in our county's schools will find _The Fairfax County Courthouse_ an important addition to their reading lists. We are all indebted to Ross Netherton and Ruby Waldeck for their contribution in casting such a revealing light upon the roots of Fairfax County, her people and government. James E. Hoofnagle Clerk of the Fairfax County Court INTRODUCTION Each generation of Americans has acknowledged its debt to Virginia's leaders whose skill in politics was demonstrated so well in a half-century that saw independence achieved and a new republic established. They were products of a system of government which itself had been perfected over more than 150 years before the colonies declared their independence. To these men--George Washington, George Mason, Thomas Jefferson, Patrick Henry, John Marshall, George Wythe, James Madison, and the Carters--the County court was an academy for education in the art of government. Important as it was to sit in the House of Burgesses at Williamsburg, the lessons of politics and public administration were learned best in the work of carrying on the government of a county. Virginia counties were unique in colonial history, for the considerable degree of autonomy enjoyed by the County courts gave them both a taste of responsibility for a wide range of public affairs and a measure of insulation from the changes of political fortune which determined events in Williamsburg, and later Richmond. In Virginia, the county courthouse was the focal point of public affairs. Usually built in a central location, with more regard for accessibility from all corners of the county than for proximity to established centers of commerce, the courthouse came to be a unique complex of buildings related to the work of the court. In time, most of these clusters of buildings grew into towns or cities, but throughout the eighteenth and nineteenth centuries many places shown on Virginia maps as "Court House" consisted literally of a county courthouse and its related structures standing alone beside a crossroads. On court days, however, the scene changed. The monthly sessions of the court, conducted in colonial times by the "Gentleman Justices", provided opportunities to transact all manner of public business--from issuing licenses and collecting taxes to hearing litigation and holding elections. They also were social events and market days; there people came to meet their friends, hear the news, see who came circuit-riding with the justices, sell their produce, and buy what they needed. In the two centuries since independence, profound changes have occurred in all phases of life that were centered in the courthouse. In Fairfax County, the pace and extent of these changes have been extensive. Architectural historians who note uniqueness in the fact that Virginia courthouses developed as a complex of related buildings may see ominous symbolism in the fact that today one of the structures in the cluster around Fairfax County's courthouse is a modern fifteen-story county office building. Yet, at the same time this office building was being planned, workmen were rehabilitating the original section of the courthouse to represent its presumed appearance in an earlier time, thus providing a reminder of the historic role of county government in Virginia. [Illustration: Five Colonial Justices of the Fairfax County Court--George Mason.] [Illustration: Five Colonial Justices of the Fairfax County Court--George Washington.] [Illustration: Five Colonial Justices of the Fairfax County Court--Bryan, later eighth Lord Fairfax.] [Illustration: Five Colonial Justices of the Fairfax County Court--Thomas, sixth Lord Fairfax.] [Illustration: Five Colonial Justices of the Fairfax County Court--George William Fairfax.] CHAPTER I FAIRFAX COUNTY'S EARLY COURTHOUSES, 1742-1800 Once the survival of the colony of Jamestown seemed assured, provision for the efficient and orderly conduct of public affairs received attention. The Jamestown colonist and his backers in the Virginia Company of London were familiar with county government structure in England, and from early colonial times the county was the basic unit of local government in Virginia. In the concept of county government, the role of the county court was central. As early as 1618, Governor Sir George Yeardley established the prototype of the County Court in his order stating that "A County Court be held in convenient places, to sit monthly, and to hear civil and criminal cases."[1] The magistrates or justices who comprised the court were, as might be expected, the owners of the large plantations and estates in the vicinity, and all were used to administering the affairs of the people and lands under their control. Accordingly, administrative duties as well as judicial duties were given to the court, and the justices' responsibilities included such matters as the issuance of marriage licenses, the planning of roads, and assessment of taxes.[2] Colonial Virginia statutes specified that each county should "cause to be built a courthouse of brick, stone or timber; one common gaol, well-secured with iron bars, bolts and locks, one pillory, whipping post and stocks."[3] In addition, the law authorized construction of a ducking stool, if deemed necessary, and required establishment of a 10-acre tract in which those imprisoned for minor crimes might, on good behavior, walk for exercise. In addition, buildings were customarily provided to house the office of the Clerk of the Court, and to accommodate the justices of the assize and their entourage of lawyers and others who accompanied them as they rode circuit among the counties of the colony. In England, the "assizes" were sessions of the justices' courts which met, generally twice a year in each shire, for trial of questions of fact in both civil and criminal cases. The county courts in colonial Virginia continued to be called assizes for much of the 18th Century. When events moved toward the partition of Prince William County to create the County of Fairfax, the Journal of the Governor in Council in Williamsburg recorded the following entry: Saturday, June ye 19th, 1742 .... ORDERED that the Court-house for Fairfax County be appointed at a place call'd Spring Fields scituated between the New Church and Ox Road in the Branches of Difficult Run, Hunting Creek and Accotinck.[4] Whether this was the first seat of the Fairfax County Court is not positively known. It is possible that the first sessions of the court may have been held at Colchester. Although no records of the transactions at these sessions have been found, an early history of the County cites entries in an early deed book which order the removal of the County Court's records from Colchester to a new courthouse more centrally located in the county.[5] Be this as it may, the plan to establish a courthouse which was formalized by the Governor in Council apparently was deliberately designed to accommodate the increasing settlement of areas inland from the river plantations--an interest which the Proprietor, Thomas sixth Lord Fairfax, shared. "Spring Fields", the site of the court house, was part of a tract of 1,429 acres owned in 1740 by John Colvill, and conveyed by him in that year to William Fairfax.[6] In this tract were numerous springs forming the sources of Difficult Run, Accotinck Creek, Wolf Trap Run, Scott's Run and Pimmit Run. It was high ground, comprising part of the plateau area of the northern part of the County, and the site selected for the courthouse had a commanding view for many miles around. The location specified in the Council Order was on the New Church Road (later known variously as the Eastern Ridge Road, the Alexandria-Leesburg Road, or the Middle Turnpike) running from the Falls Church to Vestal's Gap in the Blue Ridge Mountains, at a point where this road intersected the Ox Road, running north and west from the mouth of the Occoquan River. A map of 1748 also shows roads running from the courthouse west in the direction of Aldie, and southwest toward Newgate (now called Centreville).[7] The site was roughly equidistant for persons coming from Alexandria, Newgate, and the Goose Creek settlements, but somewhat farther for those from Colchester. The land on which courthouse was built was conveyed to the County by deed from William Fairfax, dated September 24, 1745,[8] and described six acres "where the court house of the said county is to be built and erected," to be held by the County "during the time the said Court shall be located there but no longer." According to a survey made in March 1742, the site was a rectangle, 40 poles long by 24 poles wide, described in metes and bounds starting from a post on the west side of "Court House Spring Branch".[9] No other landmarks or monuments capable of surviving to modern times were mentioned in the deed, and today the site of the Springfield Courthouse can be determined as approximately one-quarter mile south and west of Tyson's Corner. Having in mind the statutory requirements, it is presumed that the complex of buildings at Springfield consisted of a courthouse, a jail with related structures, a clerk's office, and one or more "necessary houses" (outhouses), all conveniently located with respect to each other and the roads. County records show surveys for two ordinaries (inns) located on or adjacent to the courthouse tract. One of these, surveyed in 1746, was a two-acre parcel containing John West's ordinary and related buildings, and the other, also surveyed in 1746, was for one acre within the courthouse tract on which John Colvill was allowed to build an ordinary. No contemporary descriptions of the courthouse have survived, but it is likely that the buildings were of log construction, on stone foundations, with brick chimneys. A 16-foot-square addition to the courthouse was ordered in 1749, with the specification that it have a brick chimney.[10] An item from the Court Order Book, dated December 23, 1750, states: On motion of the clerk of the court that papers lying on the table are frequently mixed and confused, and many times thrown down by persons crowding in and throwing their hats and gloves on the said table, the ill consequences thereof being considered, it is ordered that Charles Broadwater, Gent. agree with some workman to erect a bar around the said clerk's table for the better security of the books and papers.[11] [Illustration: Cartograph of the Market Square and Fairfax County Courthouse in Alexandria, as they might have appeared in the eighteenth century. Drawn by Worth Bailey, 1949.] In 1750, Fairfax County's western border closely approached the edge of English settlement in Virginia. Settlements in the western part of the County were growing far less rapidly than in the centers of population in the eastern part. Alexandria, established as a town in 1749, showed signs of becoming a major seaport, and its merchants complained that travel to the courthouse at Springfield was burdensome, and that service of process and execution of writs was well-nigh impossible.[12] They actively campaigned for moving the courthouse to Alexandria, and overcame the opposition of the "up-country" residents by offering to provide a suitable lot and build a new courthouse in Alexandria. Alexandria prevailed in 1752, and the records of the colonial Governor in Council showed the following entries: March 23, 1752. A petition subscribed by many of the principal inhabitants of Fairfax County for removing the court house and prison of that county to the town of Alexandria, which they propose to build by subscription, was this day read, ORDERED that the justices of the said county be acquainted therewith and required to signify their objection against such removal, if they have any, by the 25th of next month, on which day the Board will resume the consideration thereof. And: April 25, 1752. Upon the petition of many of the inhabitants of Fairfax County for removing the court house and prison of the said county by subscription to the town of Alexandria, the Board being satisfy'd that it is generally desired by the people, and on notice given, no objection being made to it, ORDERED that the court house and prison be removed accordingly to the town of Alexandria.[13] By May 1752, the County Court's Minute Book carried the final record of business transacted at the Spring Fields Courthouse. In Alexandria, the townspeople set aside two lots in the block of the original town survey bounded by Fairfax Street, Cameron Street and King Street.[14] By ordinance, all buildings in the town had to face the street and have chimneys of brick or stone, rather than wood, to prevent fires.[15] The building erected as the new courthouse faced Fairfax Street, between Cameron and King Streets. A prison was built behind the courthouse building in the dedicated lots. The gallows, however, are said to have remained at Spring Fields for some time.[16] Neither the architect nor the builder of the courthouse at Alexandria are known, although there is evidence that John Carlyle helped with the building of both the courthouse and market square.[17] In the last half of the eighteenth century, Alexandria prospered as the principal seaport of the Northern Neck. Its wharves and warehouses were busy, and its politics were enlivened by the presence of some of the colonies' most distinguished residents and visitors. As tobacco gave way to diversified farming, wheat and flour comprised two of Alexandria's major commodities of trade, and enforcement of the flour inspection and marking laws became an important governmental function. Criminal justice was dispensed publicly in the courthouse and jail yard, furnishing moral lessons for both the culprits and observing crowds. It was in this jail, too, that tradition has it Jeremiah Moore, a dynamic Baptist minister of colonial Virginia, delivered a sermon to crowds outside his cell window while he was confined for preaching without a license.[18] The court records for the years 1752 to 1798 show the names of many Virginians who were leaders in the War of Independence and the subsequent establishment of the new state government. Independence did not significantly affect the judicial system, however, and, except for their new allegiance, state and local officials conducted public business much as they had in the 1760's. During the years of war, however, the courthouse suffered substantially because of lack of maintenance. After the war, repairs frequently were postponed due to arguments over whether the state or locality should raise the money for them. Thus, the court records of the post-war period show frequent references to the need for repairs on the courthouse and jail,[19] most, apparently, without success. There were more serious questions being raised about the future of the courthouse in Alexandria's market square. Alexandria no longer was central to the County's most important interests. Its port was losing trade to rivals, principally Baltimore, and the voice of the growing numbers of settlers in the western part of the county complained that Alexandria merchants gained at the expense of others by having the court meet in their town. George Mason of Gunston Hall felt that Alexandria politicians were building up too strong a hold on the machinery of County government, and sought the aid of members of the General Assembly to arrange for changing the location of the courthouse.[20] Finally, in 1798, the Virginia General Assembly directed that Fairfax County's Court House be relocated to a site closer to the center of the County.[21] The search for a suitable site had gone on for almost ten years previously and might not have been concluded even then if its urgency had not been sharpened by the passage of Congressional legislation leading to creation of the District of Columbia, and the threat that Alexandria would fall within the boundaries of the new Federal capital. Since by law the County Court could not meet outside the boundaries of the County, no further delay could be permitted. Land was acquired, a new courthouse was built, and the County Court moved into its new quarters early in 1800.[22] NOTES FOR CHAPTER I [1] Albert O. Porter, _County Government in Virginia_, (New York: Columbia University Press, 1947), p. 13. [2] _A Hornbook of Virginia History_, (Richmond: Virginia State Library, 1965), p. 64. [3] Virginia, Laws, 1748, c. 7, revising earlier statutes on courts enacted in 1662 and 1679. [4] Wilmer Hall (Ed.), _Executive Journals of the Council of Colonial Virginia_, (Richmond: Virginia State Library, 1945), V. 93. [5] _Industrial and Historical Sketch of Fairfax County_, (Fairfax: County Board of County Supervisors, 1907), p. 45. [6] Northern Neck Grants Book, Liber E, p. 182. William Fairfax was a cousin of the Proprietor, and acted as his agent. [7] The so-called Truro Parish Partition Map, purporting to lay out boundaries for a division of Truro Parish to create a new parish for the western settlements. See _Virginia Magazine of History and Biography_, XXXVI, 180. [8] Fairfax County Deed Book, Liber A, No. 2, p. 494. [9] Fairfax County Deed Book, Liber A, Pt. 1, p. 52, Survey, March 17, 1742. [10] E. Sprouse (ed), Fairfax County Abstracts: Court Order Books, 1749-1792, citing Order Book, 1749-54, December 26, 1749, p. 49. [11] _Ibid._, p. 131. Charles Broadwater was one of the justices. [12] There was some reason to support this, apparently, for in 1748 the General Assembly reduced the number of court meetings to four per year for these reasons. See Virginia, Laws, 1742, c. 32; Laws, 1748, c. 59; Laws, 1752, c. 7. [13] _Virginia Gazette_, reprinted in _William & Mary Quarterly_, XII, 215. [14] Cited in Mary G. Powell, _The History of Old Alexandria, Virginia from July 13, 1749 to May 24, 1861_, (Richmond: William Byrd Press, 1928), p. 35. [15] _Ibid._, p. 22. [16] Jeanne Rust, _History of the Town of Fairfax_, (Washington: Moore & Moore, 1960), p. 30. [17] Gay M. Moore, _Seaport on the Potomac_, (Richmond: Garrett & Massie, 1949), p. 12. [18] William C. Moore, "Jeremiah Moore: 1746-1815," _William & Mary Quarterly_, 2d ser., XIII, 18, 21. Tradition also holds that Jeremiah Moore was defended by Patrick Henry, but this has not been verified. [19] Robert Anderson, "The Administration of Justice in the Counties of Fairfax, and Alexandria and the City of Alexandria", _Arlington Historical Magazine_, II, No. 1 (October 1961), 19-21. [20] "Letters of George Mason to Zachariah Johnston", _Tyler's Quarterly Review_, V (January 1924), 189. [21] Virginia, Laws, 1797-98, c. 37; Shepherd, _Statutes at Large_, II, 107. [22] During the 1780's the court was compelled to leave the original courthouse building for temporary quarters. Harrison, _Landmarks_, p. 343, states that during this period the County Court met in the Alexandria Town House, located next door, which also housed the Hustings Court. He also states that the Clerk of the County Court set up his offices in a nearby school building. The _Alexandria Gazette_, November 13, 1878, reported the demolition of an old house on the south side of Duke Street, east of St. Asaph's Street, which it stated had served as the office of the Clerk of Alexandria's Hustings Court and the Fairfax County Court commencing in the spring of 1793. CHAPTER II THE PROVIDENCE COURTHOUSE AND ITS RELATED BUILDINGS: 1800-1860 _Location and Construction_ The resolution of the General Assembly ordering relocation of the courthouse was not specific as to the site on which it would be built. Accordingly, in May 1790, the court appointed a commission to inspect a site near Ravensworth, within a mile of the crossroads at Price's Ordinary, and to negotiate for purchase of a two-acre parcel.[23] The commissioners' report was not favorable to the site, however, and negotiations for other land continued until, in May 1798, a group of commissioners was appointed to inspect a site at Earp's Corner (between a road which later became the Little River Turnpike and the Ox Road), owned by Richard Ratcliffe.[24] The commissioners reported favorably, and Ratcliffe was persuaded to sell four acres to the County for one dollar. A sale was made, and the deed recorded on June 27, 1799.[25] Work had begun on the new courthouse some six months earlier, as indicated by the following notice appearing in the _Columbia Mirror and Alexandria Advertiser_: The Fairfax Court House Commissioners have fixed on Thursday the 28th instant for letting out the erection of the necessary Public Buildings to the lowest bidder. As they have adopted the plan of Mr. Wren, those workmen who mean to attend may have sight of the plan. Charles Little David Stuart William Payne James Wren Charles Minor[26] The successful bidders at this event were John Bogue, a carpenter and builder newly arrived in the United States, and his partner, Mungo Dykes. They completed the construction of the courthouse late in 1799, and on January 27, 1800, the Commissioners reported to the County Court that they had received the "necessary buildings for the holding of the Court", and found them "executed agreeably to the contract".[27] Within the four-acre courthouse tract, a half-acre was laid off to provide space to build an office for the Clerk of the Court.[28] This original tract did not provide enough ground for the jail yard and other grounds comprising the courthouse compound.[29] Accordingly, in March 1800 the Court ordered William Payne to prepare a new survey of the compound, enlarged to accommodate all of the facilities required by the law. The area of this new survey was ten acres, capable of accommodating courthouse, jail, clerk's office, gallows and pillory, a stable, a storehouse and possibly an ordinary.[30] The equipping of the courthouse and transfer of the court's records were accomplished by March 1800, so that the _Columbia Mirror and Alexandria Advertiser_ was able to carry a notice its March 29th edition that The County Court of Fairfax is adjourned from the town of Alexandria to the New Court House, in the Center of the County, where suitors and others who have business are hereby notified to attend on the 3d Monday in April next. Thus, the first recorded meeting of the court in the new courthouse was on April 21, 1800.[31] Meanwhile, in Alexandria, the Mayor and Council adopted a resolution giving to Peter Wagener the title to the bricks of the old courthouse on Alexandria's market square as indemnity for pulling it down.[32] _Fairfax Courthouse and the Town of Providence_ The central location of the new courthouse and the improvement of its accessibility through the construction of several turnpike roads commencing in the early 1800's, led naturally to the growth of a community around the courthouse. In the vicinity of the crossroads a few buildings antedated the courthouse. Earp's store, probably built in the late 1700's, was one such building, as were dwelling houses reputedly built by the Moss family and Thomas Love.[33] Development of more nearby land was not long delayed. In 1805 the General Assembly authorized establishment of a new town at Earp's store, to be named Providence.[34] The future growth of the town was forecast in a plat laying off a rectangular parcel of land adjacent to the Little River Turnpike into nineteen lots for building.[35] Settlement during the next few decades was relatively slow. Rizen Willcoxen built a brick tavern across the turnpike from the courthouse.[36] A variety of "mechanics" and merchants opened their workshops and stores to serve the local residents and travellers on the turnpike, and, on the north side of the turnpike, a store was established by a man named Gerard Boiling.[37] Also, a school for girls occupied land across the turnpike from the present Truro Episcopal Church, and, east of the courthouse crossroads, a Frenchman named D'Astre built a distillery and winery and developed a vineyard.[38] Martin's 1835 _Gazetteer of Virginia and the District of Columbia_ described Fairfax Court House Post Office as follows: "In addition to the ordinary county buildings, some 50 dwelling houses (for the most part frame buildings), 3 mercantile stores, 4 taverns, and one school."[39] The "mechanics" located in the town included boot and shoe makers, saddlers, blacksmiths and tailors. The town's population totalled 200, of which four attorneys and two physicians comprised the professions. Somewhat later, the town's industry was augmented by establishment of the Cooper Carriage Works on the turnpike west of the courthouse.[40] This growth of services around the seat of the county government was an added inducement for the County's residents to gather in town when court was in session, to trade, transact their business at the courthouse, and exchange the news of the day. By the 1830's the schedule of court days had expanded to include sessions of the County Court (3d Monday each month), the Quarter Sessions (in March, June, August and November), and the Circuit Superior Court (25th of May and October).[41] At these times the court would sit for several days--as long as necessary--to complete the County's business. A quorum of the total panel of appointed justices was necessary to conduct the court, but this number generally was small enough so that no hardship was suffered by those who had to leave their private concerns. In every third month, the meetings of the court would also be the occasion for convening the successor to the colonial courts of the Quarter Sessions, at which criminal charges not involving capital punishment were tried. Throughout the first half of the nineteenth century, the sessions of the County Court continued to be the chief feature of life in the town of Providence, or Fairfax Court House, as it frequently was called. When the court was not in session, the regular passage of carriages, wagons, and herds along the Little River Turnpike was the main form of contact which residents had with areas outside the locality. This situation continued even after the coming of the railroads, for when the Orange & Alexandria Railroad was chartered in 1848, its route was laid out several miles south of Providence. Thus, the nearest rail stations for the courthouse community were at Fairfax Station, on the Orange & Alexandria Railroad, and at Manassas, where the Manassas Gap Railroad left the Orange & Alexandria and ran to Harrisonburg.[42] [Illustration: Four acres of Richard Ratcliffe's land near Caleb Earp's Store laid off for the courthouse and other public buildings. Record of Surveys, Section 2, p. 79, 1798.] [Illustration: Ten acres of land surrounding the courthouse laid off for the prison bounds. Record of Surveys, Section 2, p. 93, 1800.] [Illustration: Ten acres of land surrounding the courthouse intended for the prison bounds. Fairfax County Deed Book V-2, p. 208, 1824.] [Illustration: One-half acre, part of the four-acre courthouse lot, laid off for the Clerk of the County and his successors. Record of Surveys, Section 2, p. 115, 1799.] NOTES FOR CHAPTER II [23] Fairfax County Court Order Book, 1789-1791, p. 93. [24] _Ibid._, pp. 189-191. [25] Fairfax County Deed Book B-2, pp. 373-377. [26] _Columbia Mirror & Alexandria Advertiser_, June 19, 1798. John Bogue had arrived in the United States with his family in 1795. On June 20, 1795, the _Alexandria Gazette_ published his signed statement thanking the captain of the ship "Two Sisters" for a good voyage. In the August 1, 1795 issue of the _Gazette_, he advertised as a joiner and cabinet maker on Princess Street near Hepburn's Wharf, "hoping to succeed as his abilities shall preserve him deserving." [27] Fairfax County Deed Book, B-2, p. 503. [28] Fairfax County Record of Surveys, 1742-1850, p. 115. [29] Fairfax County Deed Book, B-2, p. 503. [30] Interview with former Clerk of Courts, Thomas Chapman of Fairfax, Virginia, February 13, 1970. [31] One of the items to come before the court at this session involved winding up the county's contract with John Bogue and Mungo Dykes. The Court's Clerk, Robert Moss, was summoned to appear and show cause why he had not paid the contractors in conformance with the commissioners' report accepting the buildings. Moss produced a receipt for this payment, signed by Mr. Bogue's agent, who apparently had not passed it along to his principal. Fairfax County Court Order Book, 1799-1800, p. 509. [32] Powell, _Old Alexandria_, p. 38. [33] Elizabeth Burke, "Our Heritage: A History of Fairfax County", _Yearbook of the Historical Society of Fairfax County_, 1956-7, 5:4. [34] _Ibid._, 32. [35] Fairfax County Deed Book, M-2, p. 56. [36] Rust, _Town of Fairfax_, p. 3. [37] Gerard Bolling was the father-in-law of Richard Ratcliffe who had provided the four-acre tract on which the courthouse had been built. Rust, _Fairfax_, p. 31. [38] _Ibid._ [39] Joseph Martin, _Gazetteer of Virginia and the District of Columbia_, (Charlottesville, 1835), p. 168. The name "Providence" apparently was less favored than the traditional Virginia style of referring to the seat of county government. [40] Rust, _Fairfax_, p. 37. [41] Martin, _Gazetteer_, pp. 168-169. [42] Marshall Andrews, "A History of Railroads in Fairfax County", _Yearbook of the Historical Society of Fairfax County_, III (1954), 30-31. CHAPTER III THE COUNTY COURT AND ITS OFFICERS _The functions and officers of the colonial court_ In colonial Virginia local government was centered in the County Court. Its origins as a political and social institution have been attributed to various prototypes in Tudor and earlier English history. By the time Fairfax County was established in 1742, this institution and its functions in colonial Virginia had been clearly formulated and accepted.[43] The County Court evolved from the colony's original court established at Jamestown and consisting of the Governor and Council sitting as a judicial tribunal. In 1618, the Governor ordered courts to be held monthly at convenient places throughout the colony to save litigants the expense of traveling to Jamestown. Steadily the numbers of these courts increased and their jurisdiction expanded until, by the end of the seventeenth century, these local courts could hear all cases except those for which capital punishment was provided. In effect, their jurisdiction combined the contemporary English government's King's Bench, Common Pleas, Chancery, Exchequer, Admiralty, and Ecclesiastical courts. During this period the local courts acquired numerous non-judicial responsibilities connected with the transaction of public and private affairs. Because of both tradition and convenience, the County Court was the logical agency to set tax rates, oversee the survey of roads and construction of bridges, approve inventories and appraisals of estates, record the conveyance of land, and the like. Therefore, the court's work reflected a mixture of judicial and administrative functions, and the officers of the court became the chief magistrates of the Crown and of their communities. Once this pattern of authority and organization was developed, it continued with very few basic changes throughout the eighteenth and most of the nineteenth centuries. Highest in the hierarchy of the officers of the county and the court were the justices. Originally designated as "commissioners", and, by the 1850's referred to as "magistrates", their full title was "Justice of the Peace" after their English counterparts of this period.[44] Popular usage in Virginia, however, fostered the custom of speaking of the members of the court as "Gentleman Justices". They were both the products and caretakers of a system that placed control of public affairs in the hands of an aristocratic class, and at any time in the County's history up to mid-nineteenth century a list of the County's justices was certain to include the best leadership the County had. Appointments were for life, and lacked any provision for compensation. Service on the court was, therefore, considered an honorable obligation of those whose position and means permitted them to perform it. That this was considered a serious and active responsibility was indicated by the fact that justices could be fined for non-attendance at court.[45] Through the colonial period and well after the War of Independence the justices of the county court were appointed by the governor, and, although episodes during this period indicated the recurrence of friction between the governor and General Assembly over the power to make these appointments, neither the local court nor the Assembly was able to assert permanently its claim to participate in the appointment process.[46] The number of justices of the county court varied considerably in different counties and times. By law the number was set at eight members; yet in 1769 Fairfax County had 17 justices, and appeared to be typical of other counties in the region.[47] Appointments to the county court in some instances seemed almost hereditary, for when a justice of one of the prominent local families died or retired to attend to other interests it frequently occurred that his place was taken by a younger relative. Historian Charles Sydnor has noted that during the twenty years prior to the War of Independence three-fourths of the 1600 justices of the peace appointed in Virginia came from three hundred to four hundred families.[48] Directly or indirectly, the justices of the county court influenced the selection of all other county officers. The clerk of the court was elected outright, but others--including the sheriff, coroner, inspectors and commissioners for special duties, and militia officers below the rank of brigadier--were commissioned by the governor from lists submitted by the justices. The office of clerk of the county court presumably dates from the origin of the court itself, for references to clerk's fees are found in the law as early as 1621,[49] and authority for appointment by the governor is noted in 1642.[50] From the tables of fees authorized by law, one may see that the clerk performed a wide range of functions growing out of the work of the court. These included issuing orders for all stages of court proceedings, taking depositions and inventories, recording documents, and administering or probating estates of all kinds. In addition, the county's records of births, deaths and marriages were maintained from reports made to the clerk. In time, some of the tasks of issuing certificates--such as marriage licenses--which started as duties of the court were turned over to the clerk to perform.[51] Frequently the clerk could and did exercise great influence with the justices in the handling of legal matters. As the members of the court were laymen, it often occurred that the clerk was the only person who was learned in the law, and his advice must have been a determining factor in many situations. His tenure in office also strengthened his position of influence, for it was customary to retain clerks in office for long periods of time, during which they had daily contact with the workings of the law and events in the county. Unlike the justices, who came from all parts of the county and seldom were present except on court days, the clerk was much more available at the courthouse, and so generally was the first to hear news from the colonial capital or the outside world. As a result, the clerks of the court were consulted on a variety of matters whenever a justice was not available. Fees charged for performing the various services connected with the work of the court made up the income of the clerk, and occasionally the same person might hold the positions of clerk and surveyor, notary, or special commissioner. Under certain circumstances, clerks also could practice law, and all of these sources combined to produce an income which was for the times comfortable. In the eighteenth century, two significant changes in the law prescribing the clerk's office occurred--it was made a salaried position, and the county court was given full authority to appoint the clerk--but in other respects the office was changed very little either by the passage of time or the transformation from colony to commonwealth. Ranking roughly equal to the clerk in importance to the operations of county government was the sheriff. The office of sheriff appeared when counties began to be established in the 1630's; and until after the War of Independence, sheriffs were appointed by the governor on recommendation of the county court. Almost from the beginning, too, it appears to have been customary to appoint deputies or "under-sheriffs". So it is not surprising to find that after 1661 it was customary for the office of the sheriff to rotate annually among the members of the court who, in turn, appointed their deputies directly. But in the eighteenth century this system proved too disruptive, and deputies were retained throughout several terms of sheriff's appointments.[52] From the beginning the sheriff and his deputies were compensated by fees which they collected for a wide variety of duties. These ranged from tasks connected with execution of the court's orders in criminal cases, to enforcement of the law and administration of the jail. In addition, the sheriff was due a fee from a master whose runaway servant or employee he apprehended and returned, or for collecting private debts or administering corporal punishment to servants for their owners.[53] Sheriffs also collected the levies which financed county government. However, being subject to the pressures of their own circumstances, there often was a tendency to give first priority to activities which brought in their own fees. This led the General Assembly to require that sheriffs collect public levies before they take any fees for themselves, and to prescribe a number of other rules for improvement of the conduct of their offices.[55] The role of the sheriff in the tax collection process always was a difficult one. The procedure for financing the county, initially, was for the justices simply to compile lists of their expenses and the freeholders of the county, compute how much was needed from each freeholder to cover the cost of government, and direct the sheriff to collect it. When the sheriff made his return to the court he was entitled to deduct a percentage as his commission.[56] However, revenue was often not collected, either because the job was farmed out to others who defaulted, or the county was too poor, or its residents were scattered and could not be found.[57] These problems ultimately led the General Assembly to establish other officers whose exclusive duties were the levying and collecting of revenue, but throughout the seventeenth and eighteenth centuries the sheriff performed a central role in the revenue process. The sheriff was also the custodian of the county jail and its prisoners. He had the authority to decide on and collect bail, and he was liable for a fine if a prisoner escaped. He appears generally to have taken his responsibility for the county jail lightly, for there is evidence of widespread contracting for others to provide the guard for the jail and the food for the prisoners. Other officials who were part of the colonial county government performed specialized functions, but unlike the clerk and sheriff, took no part in the general administration of county business. The office of county surveyor was created early in the seventeenth century to meet the obvious need for accurate measurement and recording of land. Initially, the surveyor was appointed by the county court, and sometimes treated as an additional duty of the clerk or sheriff. However, by the end of the eighteenth century a significant change had occurred in the legislation which called for appointment by the governor after a candidate had been examined and approved by the faculty of the College of William & Mary. By 1783, therefore, the surveyor became the first county official to be required to show professional competence as a condition of appointment.[58] The office of constable appeared in 1645, and may be described as similar to that of sheriff, except that it served the court of a single justice.[59] Constables were appointed by the justices of the county court and served in precincts delineated by the justices. The function of coroner in colonial Virginia was similar in all essential respects to that in England at that time, that is, to represent the Crown by investigating the circumstances of unexplained deaths. Originally, this function was performed by the justices, acting without fee. However, by the 1670's, coroners were being appointed by the governor, and authorized to collect fees for their services from the estate of the deceased or, lacking that, from the county. In the absence of the sheriff, the coroner could be designated by the court to perform the duties of the sheriff's office.[60] Roughly a century after the appearance of the coroner, the next significant addition to the machinery of county government came with the creation of the commissioners of the tax. Forced by the increased military expenses of the 1760's and 1770's[61] to find new sources of revenue, Virginia created an official to take over the specialized function of assessment of property for tax purposes. He was elected by the freeholders of the county. In office, his task became one of laying off the county into districts, assessing property, and notifying the owner of the tax due. The commissioners of the tax were created in 1777, and lasted until 1782 when a new official, the commissioner of the revenue was established.[62] The new commissioner took responsibility for making assessments of taxable property under a simplified procedure, and the office has remained as a unique feature of Virginia's local government to the present time. _Court Days_ As the institution of the county court grew during the seventeenth and eighteenth centuries and became the hub of county government, the monthly sessions of the court furnished an opportunity for general gatherings of the county's residents and visitors to transact both public and personal business. A scene that must have been typical of almost any Virginia county in the early nineteenth century has been described by historian John Wayland as follows: Court day once a month was looked upon as a great event; everyone that could leave home was at hand. It was a day of great interest; farmers coming in with their produce, such as butter and eggs, and other articles which they exchanged for groceries and dry goods. The streets around the courthouse were thronged with all sorts of men; others, on horseback, riding up and down trying to sell their horses. Men in home made clothes, old rusty hats that had seen several generations, coarse shoes and no stockings, some without coat or vest, with only shirt and pants.... This was a day to settle old grudges. When a man got too much whiskey he was very quarrelsome and wanted to fight.... It was, also, a great day for the gingerbread and molasses beer. The cake sellers had [tables] in front of the courthouse, spread with white cloths, with cakes piled high upon them and with kegs of beer nearby. I have seen the jurymen let down hats from the windows above, get them filled with gingerbread and a jug of beer sent up by rope. About four or five o'clock the crowd began to start for home.[63] For anyone who had business with the court, whether he or she came as a petitioner or a penitent, the justices, clerk, sheriff, and other officials represented the presence of power and authority as colonial Virginia knew it. But it was a presence in which men stood on little ceremony or formality with each other. Except in unusual circumstances all were likely to be laymen, for in colonial Virginia there was little formal education in the professions and, at most, one might have attended lectures at the College of William & Mary or a school in England. If the gentlemen justices were widely read in history, philosophy, government and literature--as well they might be--these advantages of their means and leisure did not destroy their appreciation for the issues they were asked to decide. For in their own right they were planters who had to face and deal with these issues in their own lives. Accordingly, their decisions, as reflected in the minutes of their sessions, were based on this realism which comes from personal experience. Yet it remained true that the gentlemen justices of the county court were, for most practical purposes, beyond any control of the community they governed. Any complaint about the manner in which the justices conducted their business could only be directed to the governor.[64] Should the court cease to function for long periods of time because of quarreling among the justices, or should the occurrence of an emergency require replacement of justices, the freeholders of the county had no method of dealing with their problem except through the pressure of public opinion.[65] Even with the best of good will among the members of the court, they could not escape the usual difficulties of handling legal matters before a bench of lay judges, who not only lacked professional training, but were handicapped by the scarcity and cost of law books.[66] Decisions which seemed wrong could, from earliest colonial times, be appealed to the governor and General Court. Later the establishment of District Courts, and their successors the Circuit Courts, provided an intermediate tribunal for determining matters which turned on points of law. But the business of the gentlemen justices on court days was a mix of legal and administrative matters, and in the latter area of activity there was no appeal. _Election Days_ Among the non-judicial activities carried on at the courthouse, none was as colorful and few were more important than elections of members of the House of Burgesses. Elections were ordered by writs issued by the governor, and in each county they were conducted by the sheriff. Unless reasons of the greatest gravity prevented it, the polling place was the county courthouse.[67] Voting, or "taking the poll" as it was called, was conducted in the court chambers, or, in warm weather, in the courthouse yard, with the sheriff presiding at a long table. On either side of the sheriff were justices of the court, and at the ends of the table were the candidates and their tally clerks. The sheriff opened the election by reading the governor's writ and proclaiming the polls open. If there was no contest or a clearly one-sided election, the sheriff might take the vote "on view"--that is, by a show of hands of those assembled at the courthouse. Generally, however, a poll of the individual voters was taken. As the polling went on, each freeholder came before the sheriff when his name was called and was asked by the sheriff how he voted. As he answered, the tally clerk for the candidate receiving the vote enrolled it and the candidate, in his turn, generally acknowledged the vote with a bow and expression of appreciation. At the close of the polling a comparison of the tally sheets showed the winner. This method of voting enhanced the excitement of a close election, and, since elections frequently were held on court days when many people came to the courthouse on other business, activity outside the courthouse sometimes was spirited. Wagers were offered and taken, arguments broke out and fights sometimes followed.[68] Those attending the elections usually were in good spirits, for they were aided by the custom of the candidates to provide cider, rum punch, ginger cakes, and, generally, a barbecued bullock or pigs for picnic-style refreshment of the voters waiting at the courthouse.[69] The candidates and their friends also kept open house for voters traveling to the courthouse on election day, offering bed and breakfast to as many as came. On election night, the winning candidates customarily provided supper and a ball for their friends and other celebrants.[70] The law was explicit that no one should directly or indirectly give "money, meat, drink, present, gift, reward or entertainment ... in order to be elected, or for being elected to serve in the General Assembly",[71] but the practice of treating the voters on election day was deeply rooted in Virginia's political tradition. Thus the law was interpreted as only prohibiting one offering refreshment "in order to get elected"--something extremely difficult to prove--but not preventing one from treating his friends. So, while occasionally voices were heard to condemn candidates for "swilling the planters with bumbo",[72] or bemoan the "corrupting influence of spiritous liquors, and other treats ... inconsistent with the purity of moral and republican principles", the complainants almost always turned out to be candidates who themselves had recently been rejected at the polls.[73] _The Transition From Colony to Commonwealth_ The War of Independence caused little change in Virginia's system of county government. The county court system was carried over into the state constitution of 1776 with only the oath of office changed to call for support and defense of the constitution and government of the Commonwealth of Virginia.[74] The General Assembly became the successor to most of the functions of the colonial House of Burgesses and Governor in Council, but significantly the principle of the separation of powers established for the commonwealth was not extended to the counties. Thus, the mix of powers, privileges and duties which comprised the authority of the gentlemen justices in colonial times was continued, as was the custom of appointment for life. How little the transition from colony to commonwealth changed the justices' own view of their position was illustrated in 1785 when the new governor issued new commissions reappointing the justices of Fairfax County's court. The justices refused to accept the new commissions, and pointed out to the governor in a long letter that this duplication of oaths would set a bad precedent and risk giving the executive undue powers over the court. Far from being an artificial objection, the letter noted, this latter point was extremely touchy for the justices' standing in a great many matters was based on seniority, and both the prestige and chances for financial rewards that went with the office depended on this standing.[75] The most noteworthy changes in the organization of local functions came as a result of the disestablishment of the Church of England. That portion of all local officials' oaths which called for supporting and defending the church was dropped, but, more important, abolition of the parish vestry made it necessary to lodge its non-religious functions elsewhere. In 1780, therefore, the General Assembly created county boards of Overseers of the Poor.[76] Most other welfare activities were added to the responsibilities of the county court.[77] While the basic philosophy of Virginians regarding their local government did not change as a result of independence, certain new governmental institutions were created because colonial ways were not efficient enough to meet the demands placed on them by social and economic growth. Although the general jurisdiction of the county court was continued, in 1788 a new court, called the district court, was established to relieve the pressure of judicial business.[78] These district courts were the direct antecedents of the present circuit courts of the counties which were created by the General Assembly in 1818.[79] If the district court did not displace the county court immediately, it forecast its eventual decline as a judicial tribunal. The new court introduced the beginnings of professionalism on the bench, and offered the prospect of full-time attention to the administration of justice by trained judges. Establishment of the office of the Commonwealth Attorney in 1788 added to this trend toward professionalism.[80] Most of the administrative duties of the county court in colonial times remained after independence. Consequently, the records of the county court continued to show actions connected with the licensing of inns, ordinaries, mills, ferries, peddlers, and other similar activities, along with attention to the survey and maintenance of roads, bridges, and fords.[81] Regulatory powers over the practices of tradesmen and artisans was broad, and used by the county court to set rates which could be charged and to prescribe trade practices which affected the quality of the products involved. In this area of activity, the county court was performing what Virginians generally regarded as matters of purely local concern. Except in connection with the production of tobacco and milling and shipping of grain, economic activities seldom affected anyone beyond the county neighborhood.[82] Therefore, the county court was deemed to be the best body to understand and accommodate the interests involved. This attitude began to change only as the improvement of transportation facilities increased travel and commerce in the period from 1830 to 1860. NOTES FOR CHAPTER III [43] See generally, Martha Hiden, _How Justice Grew: Virginia Counties: An Abstract of Their Formation_, (Williamsburg: Virginia 350th Anniversary Celebration, 1957). Also, because time-honored tradition as well as law influenced the organization of Virginia counties, the description of English local government in J. B. Black, _The Reign of Elizabeth, 1558-1603_, (Oxford: Oxford University, 1936), pp. 174-177, applies to Virginia's county government in the colonial and early federal periods. [44] The first statute on this subject, in 1628, used the term "commissioners" (I Hening, _Statutes_, 133). In 1662, this term was replaced by "justices". P. A. Bruce, _Institutional History of Virginia in the Seventeenth Century_, (New York: Putnam, 1910), I, 488. However, Porter, _County Government_, p. 170, states that "justice of the peace" was the full title during most of the seventeenth and eighteenth centuries. [45] Porter, _County Government_, p. 168. [46] In 1657, for example, the House of Burgesses enacted legislation requiring that appointments be recommended by the county court and approved by the Assembly. (I Hening, _Statutes_, 402, 480) But this requirement appears to have been repealed after the restoration of Charles II. [47] Porter, _County Government_, p. 49, cites the _Calendar of State Papers_, I, 261, listing the numbers of justices in nearby counties as follows: Fauquier, 18; Prince William, 18; Loudoun, 17. [48] Charles Sydnor, _American Revolutionaries In The Making_, (New York: Collier, 1962), p. 64. [49] Hening, _Statutes_, I, 117. [50] Hening, _Statutes_, I, 305. [51] Hening, _Statutes_, II, 28, 280. [52] Porter, _County Government_, p. 42. [53] _Ibid._, pp. 27-28. [54] Hening, _Statutes_, I, 330, 484. [55] These rules included prohibitions against extortion of excessive fees, acting as lawyers in their own courts, falsifying revenue returns, multiple job-holding and the like. See Hening, _Statutes_, I, 265, 297, 330, 333, 465, 523; II, 163, 291. Porter, _County Government_, 68, comments that "the office of sheriff, judging from the number of acts which the assembly found it necessary to pass, was the problem child of ... [the 18th century], not only in regard to the duties of the office, but also in the method of appointment." [56] Shepherd, _Laws of Virginia_, I, 367. [57] _Calendar of State Papers_, IV, 416. [58] Hening, _Statutes_, XI, 352. [59] Hening, _Statutes_, IV, 350. [60] Hening, _Statutes_, II, 419; IV, 350. [61] Hening, _Statutes_, IX, 351. [62] Hening, _Statutes_, XII, 243. [63] John Wayland, _History of Rockingham County, Virginia_, (Dayton, Virginia: Ruebush-Elkins, 1912), pp. 424-425. [64] Porter, _County Government_, p. 109, citing _Calendar of State Papers_, IV, 170. [65] Sydnor, _American Revolutionaries_, pp. 77-78. [66] As a result law books were the property of the court rather than the individual justices, and on the death or resignation of a justice his law books were surrendered to the court and divided among the remaining members of the court. Hening, _Statutes_, IV, 437. [67] In unusual circumstances, such as an outbreak of smallpox, the sheriff might chose an alternate site. H. R. McIlwaine (ed), _Journals of the House of Burgesses, 1742-49_, (Richmond, 1909), p. 292. [68] Douglas S. Freeman, _George Washington: A Biography: Young Washington_, (New York: Scribner, 1948), II, 146, notes that Washington became involved in an election-day brawl at the election of members of the House of Burgesses in December 1755. The contest between John West, George William Fairfax, and William Ellzey was very close, and Washington (supporting Fairfax) met William Payne (who opposed Fairfax). Angry words led to blows, and Payne knocked Washington down with a stick. There was talk of a duel, but the next day Washington apologized for what he had said, and friendly relations were restored. [69] Sydnor, _American Revolutionaries_, p. 53. [70] Nicholas Cresswell, _The Journals of Nicholas Cresswell, 1774-1777_, (Pt. Washington, N. Y.: Kennikat Press, 1968), pp. 27-28. [71] Hening, _Statutes_, III, 243. [72] "Bumbo" was an eighteenth century slang term for rum. Sydnor, _American Revolutionaries_, p. 53. [73] William C. Rives, _History of the Life and Times of James Madison_, (Boston: Little, Brown, 1873), I, 180-81. [74] Porter, _County Government_, p. 107. [75] Calendar of State Papers, IV, 337. [76] Hening, _Statutes_, X, 198; XI, 432; XII, 273, 573; Shepherd, _Laws_, I, 114. [77] Hening, _Statutes_, X, 385 (orphans); XII, 199 (mental health). [78] The district court's jurisdiction included civil cases of a value of £30 or 2,000 lbs of tobacco, all criminal cases, and appeals from the county court in criminal cases. Hening, _Statutes_, XII, 730 et seq. [79] Virginia, _Code of 1819_, I, 226. [80] Hening, _Statutes_, XIII, 758. [81] Hening, _Statutes_, XII, 174. [82] In the late eighteenth century, Virginia millers and warehousemen were major sources of grain and flour for New England, the West Indies and Mediterranean. The House of Burgesses, and later the General Assembly, enacted comprehensive laws regulating the quality, grading and marking of these products. See, Lloyd Payne, _The Miller in Eighteenth Century Virginia_, (Williamsburg: Colonial Williamsburg, 1963) and Charles Kuhlman, _The Development of the Flour-Milling Industry in the United States_, (Boston: Houghton Mifflin, 1929), pp. 27-33, 47-54. [Illustration: Fairfax County Courthouse, June 1863. Photo by T. H. O'Sullivan. Copy from the Library of Congress.] CHAPTER IV THE WAR YEARS: 1861-1865 As events in the winter of 1860 and the spring of 1861 carried the nation into the crisis of civil war, Fairfax County aligned itself with Richmond rather than Washington. Thus, at the State's convention on secession in May 1861, the Fairfax County delegation voted to ratify the secession ordinance.[83] The consequences of this action were prompt in coming and far-reaching in their effects, for with the commencement of military operations in Northern Virginia it became impossible to carry on the normal processes of county government. Fairfax Court House (the Town of Providence) was outside the ring of fortifications which were built on the Virginia side of the Potomac to protect the National Capital. Inside this line, stretching in a great arc from Alexandria, through the vicinity of The Falls Church, to Chain Bridge, Union Army commanders exercised military authority and administered justice through provost courts.[84] Outside this area the authority of the General Assembly of Virginia nominally remained in effect, and the justices of the courts and the sheriffs of the county continued to hold their positions under the laws of the seceded state. Serious difficulties in the transaction of public business soon appeared throughout Fairfax County, where patrolling and skirmishing outside the ring of permanent fortified positions were daily occurrences. This was recognized in an ordinance adopted by the Secession Convention providing that when the court of any county failed to meet for the transaction of business or the public was prevented from attending the court "by reason of the public enemy", the court of the adjoining county where such obstructions did not exist had jurisdiction of all matters referrable to the court or the clerk of the court where normal business had ceased.[85] As Virginia armed, troops of the Confederacy placed themselves in positions to repel invaders, and in May 1861, a company of the Warrenton Rifles established a camp at Fairfax Court House. On the morning of June 1, 1861, a body of Union cavalry rode through the town, and in the confused exchange of fire which followed, a Captain of the Rifles, John Quincy Marr, became the first officer casualty of the war.[86] A month later, the tide of Union forces under McDowell swept past the courthouse on the way to its rendezvous at Bull Run, and back again to the safety of the fortified positions along the Potomac. In the wake of their victory at Bull Run, troops of the Confederacy established an outpost at Fairfax Court House to watch for signs that the Union Army might resume the offensive by moving against the Confederate earthworks near Centreville. This outpost did not see any fighting for the time being, but it provided the site for what later was regarded as one of the decisive moments of the war. In September 1861, General Beauregard had established his headquarters at Fairfax Court House, and urgently pressed the newly-formed government of Confederate President Jefferson Davis for reinforcements with which to sweep into Pennsylvania and Maryland and, hopefully, to carry the Federal capital itself. A meeting was arranged at Beauregard's headquarters in which Davis, Generals Beauregard and J. J. Johnston, and certain of their trusted staff officers considered this plan. Their decision was to adopt a defensive posture and protect the borders of Virginia rather than take the offensive and invade the North. As events turned out, this decision had consequences of the greatest effect, for it was not until Lee marched out of the Valley on the road to Gettysburg in 1863 that there was another opportunity for the Confederacy to carry the war to the soil of the northern states.[87] In the spring of 1862, the Confederate army retired from Fairfax Court House, and soon after that its line of fortifications at Centreville--the most extensive system of field fortifications in military history up to that time--was abandoned. As the Union armies took the initiative in their repeated efforts to reach Richmond, the crossroads at Fairfax Court House had key importance in the communication and supply systems of these forces. From 1862 to the end of the war, Union troops remained in control of the crossroads and the courthouse. Contemporary photographs of the building show it being used as a lookout point and station for patrols. Other descriptions indicate that the courthouse was loopholed,[88] the furnishings were removed, and the interior generally was gutted so that only the walls and roof remained.[89] For all practical purposes, the courthouse and its related buildings were, in the years 1863 and 1864, a military outpost and minor headquarters in the Union army's system to protect its supply and communications lines from the irregular troops who kept hostilities constantly smoldering in Northern Virginia. Throughout the western part of Fairfax County, and in Loudoun, Fauquier and Prince William Counties, lived many who gave the appearance of innocent farmers during the daylight hours, but who changed into Confederate uniforms at night and on weekends to ride against isolated outposts or supply points of the Union army or destroy vulnerable bridges and communications centers. The operations of these guerilla bands kept thousands of Union troops pinned down on rear area security guard duty, and preoccupied the forces assigned to Fairfax Court House. The difficulty of their task under the circumstances that prevailed in Northern Virginia was dramatized in the famous Confederate raid on Fairfax Court House by men under the command of Col. John S. Mosby when, on the night of March 8, 1863, the Confederate commander with about 30 men captured and carried off 33 prisoners, including Union Brigadier General Edwin H. Stoughton, and a large number of horses and quantity of supplies. Throughout 1863, 1864 and the spring of 1865 hardly a night went by without some cries of alarm and shots being fired because of the activities of the Confederate irregulars. Yet they took a substantial toll from the wealth and welfare of the very people they claimed to represent, for the Union troops soon learned more efficiency in their rear area operations, and increased the restrictions on movement of civilian traffic. The transaction of personal business in normal ways became virtually impossible. The historian, Bruce Catton, has assessed the activities of the guerilla bands as follows: The quality of these bands varied greatly. At the top was John S. Mosby's courageous soldiers led by a minor genius, highly effective in partisan warfare. Most of the groups, however, were about one degree better than plain outlaws, living for loot and excitement, doing no actual fighting if they could help it, and offering a secure refuge to any number of Confederate deserters and draft evaders.... The worst damage which this system did to the Confederacy, however, was that it put Yankee soldiers in a mood to be vengeful.[90] During the years when normal business at the courthouse was suspended and the county officials who held authority from the General Assembly were dispersed, some of the county's records were removed from the courthouse for safekeeping, and some were not.[91] In either case they were subject to the risks of loss and damage. Some were carried off and in later years have been brought to light as the descendents of Union and Confederate soldiers have found them in places where they had been put for safekeeping. The jail building ceased to be used for its original purpose, and, during the latter months of the war, the jail of Alexandria County (now Arlington County) was utilized for Fairfax County's prisoners.[92] The effort to provide a legitimate successor to the secession government in Richmond started in the Wheeling Conventions of May and June 1861, from which came the Unionist government of Francis H. Pierpont.[93] The admission of West Virginia to the Union in December 1862[94] left Governor Pierpont in control of only those parts of Northern Virginia, the Shenandoah Valley, and Chesapeake Bay that were occupied by Federal troops. Within this area, the Pierpont administration collected taxes and attempted to supply the essential services of civilian government. Closer touch with these problems was possible after June 1863, when Governor Pierpont moved his government to Alexandria. On January 19, 1863, a new County Court for Fairfax County was convened pursuant to a proclamation by Governor Pierpont which directed that the place for the court's sessions should be changed from Fairfax Court House to the Village of West End[95] near Alexandria. Here, in January 1863, the Court met in a structure known as Bruin's Building. The minutes of this and other sessions which followed recite many of the same problems and disputes that always had occupied the time of county courts--dockets of minor criminal and civil cases, petitions to higher levels of government, determination of minor civil disputes, issuances of permits and licenses, and appointment of public officials.[96] Certain items in the minutes of this January 19, 1863 meeting documented the strains created by the wartime conditions: a petition to the Secretary of War prayed that the "Bruin Building" in the Village of West End be placed at the court's disposal; the Deputy Commissioner of Revenue was directed to discharge the duties of the Commissioner until the latter, currently a prisoner in Richmond, could return to his duties; payments were approved for wagonowners who had hauled books, papers and records to the courthouse from various points in Fairfax and nearby counties. One item of particular interest stated: The fact having been brought to the notice of the Court that degradations were being committed upon the Mt. Vernon Estate, the Court, under the Chancery powers vested therein, appointed Jonathan Roberts, the present Sheriff, Curator, to take charge of all property in Fairfax County, Va. belonging to the heirs of John A. Washington, dec.[97] After the cessation of fighting in April 1865, Governor Pierpont moved his government from Alexandria to Richmond. However, without the presidential support which Lincoln had provided during his lifetime, the Pierpont administration found it increasingly difficult to carry on effective government as the years immediately after the war saw numerous plans for reconstruction competing for favor. The situation was further complicated by the fact that in February 1864 the Pierpont administration had sponsored a constitutional convention which had adopted a new constitution for Virginia, and that this constitution had nominally gone into effect in Alexandria and Fairfax counties.[98] A complex legal problem regarding the succession of governmental authority thus was added to the formidable task of reconstructing Fairfax County's economy and physical facilities. This task was made difficult because many of the records of the County had been scattered or destroyed during the fighting. Records were searched out and retrieved whenever their places of safekeeping were known, a process requiring years of effort. Some record books were never found. The accounts of how the wills of George and Martha Washington were recovered are frequently cited to illustrate the difficulties of reassembling Fairfax County's records. When, in the fall of 1861, Beauregard's Confederate troops withdrew from Fairfax County, the will of George Washington was secretly removed from the courthouse by the court clerk, Alfred Moss, and taken to Richmond. Here it was placed for safekeeping with the Secretary of the Commonwealth of Virginia. Following the cessation of hostilities, it was returned to Fairfax County.[99] Martha Washington's will was not removed from the courthouse to Richmond, but remained there during the time Union troops occupied the building as a patrol point. As might be expected, cabinets were broken open and papers scattered. One day, late in 1862, a troop of soldiers from New England was in the building and engaged in shoveling out the debris from the floor. A Union lieutenant named Thompson grew curious about these papers and interrupted the work long enough to examine some of them. He picked up the will of Martha Washington and, recognizing it, took it with him. Following the war, the will next was heard of in 1903 in England where a descendant of Lt. Thompson sold it to J. P. Morgan. The sale was reported to the Commonwealth Attorney of Fairfax County who wrote Mr. Morgan seeking the return of the will, but no answer was ever received. After Mr. Morgan's death, the County sought to obtain the will from his son. Negotiations were unsuccessful until court action was begun by the County. Finally, one day before the matter was to be argued before the United States Supreme Court, the will was returned.[100] NOTES FOR CHAPTER IV [83] Thomas Chapman, Jr., "The Secession Election in Fairfax County, May 23, 1861", _Yearbook of the Historical Society of Fairfax County_, IV (1955) 50. [84] Robert Anderson, "The Administration of Justice in the Counties of Fairfax, Alexandria (Arlington) and the City of Alexandria (Part II)", _The Arlington Historical Magazine_, II (October 1962) 10-11. [85] Ordinance 67, passed by the Virginia Convention, 26 June, 1861, cited by Anderson, "Administration of Justice", p. 10. [86] Governor William Smith, "The Skirmish at Fairfax Court House", _The Fairfax County Centennial Commission_, (Vienna, Virginia: 1961) p. 4. Because of the confusion in the Confederate ranks, no officer took charge, and so Governor Smith ordered the Confederate troops to return the fire of the Federal soldiers. [87] The Fairfax Court House meeting, which took place in Gen. Beauregard's headquarters near the courthouse, has been the subject of controversy in the memoirs of those involved. See, for example, Jefferson Davis, _The Rise and Fall of the Confederate Government_, (New York: Yoseloff, 1958), I, 368, 448-452, 464; Alfred Roman, _Military Operations of Gen. Beauregard_, (New York: Harper & Bros., 1884), I, 137-139. [88] _Washington Post_, April 10, 1921. [89] _Alexandria Gazette_ and _Fairfax News_, October 17, 1862. [90] Bruce Catton, _A Stillness at Appomatox_, (New York: Cardinal Giant Edition, Pocket Books, Inc., 1958), pp. 318-319. [91] Two items from the _Alexandria Gazette_ in July 1862 illustrate the problems regarding these records. The edition of July 12, 1862 printed a letter to the newspaper stating that records of Fairfax County had lately been found in Warrenton, having been removed there, it was supposed, by lawyers. The new sheriff of the County took possession of these records. The edition of July 23, 1862 reported that the new County Court of Fairfax held its July term in the Clerk's office, the courthouse not being in condition for that purpose, and that one of the court's actions was to order that application be made for a new seal, the old one not being found. [92] Fairfax County Court Minute Book, 1863-1867, p. 130. This order was entered November 25, 1864, and was rescinded by a subsequent order entered November 22, 1865. Minute Book, 1863-1867, p. 289. [93] The Unionists in northern and western Virginia met twice in conventions held at Wheeling. In May 1861 a convention of some 400 so-called delegates from the counties in these regions met to consider their stake in the State's constitutional crisis, but took no action since Virginia had not yet ratified the secession ordinance. A second convention at Wheeling was held in June 1861, and organized a Unionist government for the State which claimed the authority of the General Assembly (which it asserted had forfeited its authority by rebellion) and other constitutional officials. Francis H. Pierpont served as governor of this Unionist government of Virginia. [94] The Congressional approval of West Virginia's admission occurred in December 1862, but it was not until June 1863 that President Lincoln proclaimed the admission of the new State and approval of its constitution. [95] Fairfax County Court Minute Book, 1863-1867, p. 2. [96] _Ibid._ Minutes of a meeting of the court on January 19, 1863. [97] _Ibid._ The practical effect of this order has been questioned, however, since Mt. Vernon was sold out of the Washington family in 1859 to the Mt. Vernon Ladies' Association of the Union, and the Washingtons had, by 1863, moved to Fauquier County, leaving neither relatives or property in Fairfax County. Interview with Judge James Keith, April 1972. [98] As described in William Hemphill, Marvin Schlegel and Sadie Engelberg, _Cavalier Commonwealth: History and Government of Virginia_, (New York: McGraw-Hill, 1957), 339-340, this constitution contained various new provisions, such as the abolition of slavery and denial of suffrage to all men who held office under a Confederate government. [99] Eugene E. Prussing, _The Estate of George Washington, Deceased_, (Boston: Little, Brown, and Co., 1927) pp. 39-40. "Martha Washington's Will and the Story of its Loss and Recovery by Fairfax County," _Yearbook of the Historical Society of Fairfax County, Virginia_, II (1952-53) 40-62. [100] "Martha Washington's Will," p. 61. CHAPTER V THE YEARS OF REBUILDING: 1865-1903 With the end of the war the formidable tasks of rebuilding both state and local governments were begun. President Abraham Lincoln's view of reconstruction had been that the government which took Virginia out of the Union should be the one to bring her back into the Union,[101] and President Andrew Johnson generally sought to follow this principle. Others, mainly the Radical Republican leaders, argued that Virginia had forfeited her sovereignty by rebellion, and so could not return to the Union except on new terms.[102] In this respect, President Johnson found that the presence of Governor Pierpont in Richmond--purporting to govern under the constitution which his government had drafted and ratified in Alexandria in 1864--was a complicating factor. Not only was the legitimacy of this constitution questioned, but all evidence pointed to the conclusion that the state's leaders who had served the Confederacy could not and would not accept it. An unsuccessful attempt to improve the constitution was made in the summer of 1865, and thereafter a series of confusing elections and administrations followed as the Radical Republican leaders in Congress overrode President Johnson's reconstruction program.[103] In March 1867, the territory of nine former Confederate states was divided into five military districts, in which army commanders were authorized to oversee the civil administrations of the states. In Virginia's military district, the army commander, General John Schofield, interfered very little with the administration of Francis Pierpont, who served as Provisional Governor. Pierpont provided a measure of needed stability compared to what had preceded it, and as a result slow but steady progress was made toward reconstituting some of the essential elements of local government in the state.[104] The prospect of restoration of full political power to the states appeared briefly in March 1867 when Congress provided that the Confederate states would be readmitted to the Union and their delegations would be seated in Congress when they adopted constitutions which conformed to the Constitution of the United States with the new Fourteenth Amendment. A convention, dominated largely by Republican reconstructionists, met in December 1867 and brought forth the so-called "Underwood Constitution," named for Judge John Underwood who presided at the convention. The proposed new constitution contained the main features which were needed to secure reinstatement of Virginia's sovereignty. In addition, however, it contained a controversial provision which, in effect, disenfranchised thousands who had served the Confederacy. Thus, the choice offered in the impending ratification referendum was difficult for most Virginians. So controversial was this matter that the army commander was moved to intervene and postpone the referendum indefinitely.[105] Stalemate followed during 1868 and 1869. Francis Pierpont was replaced in the office of Provisional Governor by Henry Horatio Wells, a New Yorker who was favored by the Radical Republicans. Progress toward reconstitution of local government lost momentum as state leadership lapsed. Intervention by President Grant finally brought action on the Underwood Constitution by proposing that Virginians vote on the controversial disenfranchisement clauses separate from the main features of the document. In July 1869, the vote was taken, with the expected result that the "test oath" provision was defeated while the constitution was approved. In the General Assembly elected under this constitution, the Conservative Party enjoyed a working majority over the Republicans, who had been badly split by the referendum controversy. Henry Wells resigned, and was replaced by Gilbert Walker, who served first by appointment of the army commander and later by virtue of election to a constitutional four-year term. In January 1870, legislators from Virginia resumed their seats in the Congress, and the last Federal occupation troops left the State. The Underwood Constitution introduced major changes into the structure of local government.[106] It adopted the Northern system of dividing counties into townships,[107] with a justice of the peace exercising his authority only within his township. Other elective offices introduced at this time were county supervisors, a county clerk, collector, assessor, overseer of the poor, and overseer of roads. All these officials--some serving the township and others the county--were salaried, and greatly increased the size of the governmental apparatus formerly centered in the county court. The Board of county supervisors was the general governing body of the county, comprised of members elected from each township. Although this expansion of the structure of county government came in response to recognition that problems of the 1870's could not be solved with government geared to the 1770's, the impact of these problems plus Virginians' conservative political tradition led to dissatisfaction with the township system from its inception. As soon as the original force of the reconstruction movement was spent, therefore, this system was modified to bring it more into line with Virginia's historic governmental institutions. In 1875 and 1884 the number of separate elective offices was decreased, the independent powers of the townships were reduced, and the townships were converted into "magisterial districts."[108] Gradually the power to appoint all county officers except those with constitutional status was given to the board of county supervisors and the county's Circuit Court judge. [Illustration: Map of Fairfax Court House from G. M. Hopkins, _Atlas of Fifteen Miles Around Washington_, 1879.] The last quarter of the nineteenth century saw the appearance and disappearance of a number of public offices now only dimly remembered. For example, the county office of commissioner of roads dated from 1831, but the constitution of 1869 created township overseers of roads who, with the commissioner of roads, formed the county road board. When the townships were abolished, the duties of these boards were transferred to the commissioner of roads and road surveyor. By 1900 this highly decentralized system had resulted in enactment of several hundred local road laws by the states and led to a confused situation that was not cured until the state highway system and highway department were established in 1919.[109] From the time of the disestablishment of the Church of England, care of the County's poor and orphans had been the responsibility of the County's overseer of the poor. Public health measures to suppress smallpox also were carried on by this officer. The constitution of 1869 created a superintendent of the poor for each county, elected by popular vote, and the overseers of the poor became township officers. With the abolition of the townships, the superintendent of the poor also disappeared and the overseers became officers of the magisterial districts.[110] In the early days of the nineteenth century, the justices of the County Court had been responsible for the County's militia. This system was changed in 1833 when the militia were reorganized to form divisions, brigades and regiments on a state-wide basis. Officers were appointed by the governor on recommendation of the county court. This system continued until the Civil War, and when the militia was established after the war it was managed entirely from the state level.[111] In the changes that followed the shift of governing power to the board of county supervisors, one of the chief losers was the county sheriff. He ceased to have any control of elections or revenue matters, and his other powers and prerogatives connected with administrative functions of county government were lost to others. He became exclusively a peace officer and custodian of the county jail, and these are the duties of his office today. As the nineteenth century ended, Virginia moved toward another constitutional convention--its fifth since 1776--with the hope of modernizing the machinery of government. As matters turned out, however, the resulting constitution of 1902 was not a forward-looking document, and its chief results were to formalize changes which had already occurred in practice. Thus, much debate was spent on how voting qualifications should be regulated, and whether the old county court should be abolished or not. Fairfax County's representatives in the convention voted for retaining the county court, arguing that the monthly sessions had significant social values--an "heirloom of great psychological importance." Ultimately, however, the vote went against retention of the county court and it was abolished. Its judicial functions were assigned to the circuit court, and its legislative and administrative functions were performed by the board of supervisors.[112] The disappearance of this political institution which had been the focal point of Virginia's local government for almost 300 years, marked the end of an era which reflected the tradition that public affairs were best managed by the county's gentlemen freeholders. But it did not immediately usher in as its successor an era of professionalism and responsiveness to the wishes of the public. Progress in these latter respects was postponed by slowness in widening the suffrage and the opportunity to hold public office. In this respect the Constitution of 1902 perpetuated the restrictive system which had prevailed since 1875 by retaining the capitation tax and the requirements of literacy and/or the ability to explain any part of the constitution. The beginning of the twentieth century also marked the end of the rebuilding years which had followed the Civil War. The simple struggle for subsistence, which had been the foremost theme when scarcities existed in all types of goods and the sources of capital were meager, no longer was the overriding consideration. A measure of normalcy had, by 1902, returned to life in Northern Virginia. And if the pace of this style of life was not as vigorous or spectacular as in some other areas of the nation at that time, it offered, at least, the substantial attractions of a comfortable and secure rural setting with ready access to the centers of commerce and culture in nearby Washington, Alexandria, and Georgetown. NOTES FOR CHAPTER V [101] Hemphill, et al., _Cavalier Commonwealth_, p. 346. [102] Samuel E. Morison and Henry S. Commager, _The Growth of the American Republic_, (New York: Oxford, 1937), II, 37-41. [103] Porter, _County Government_, p. 241. [104] Walter L. Fleming, _The Sequel of Appomatox_, (New Haven: Yale University, 1921), pp. 146-147. [105] Explaining his action to General Grant, then supreme commander of all the military districts, General Schofield stated that the members of the Underwood Convention "could only hope to obtain office by disqualifying everybody in the State who is capable of discharging official duties, and all else to them was of comparatively slight importance. Even the question of whether their constitution will be ratified or rejected they treat with indifference. Congress, they say, will make it all right anyway." Hemphill, et al., _Cavalier Commonwealth_, p. 352. [106] See Porter, _County Government_, pp. 243-246, 258-259, 293. [107] The introduction of the township was probably due to the fact that a number of New Yorkers participated in the convention. Townships had never been part of the tradition of Virginia's local government. [108] Virginia, Laws of 1874-75, c. 270. [109] Porter, _County Government_, pp. 249, 271; _Code of Virginia_ (1950 Edn.) Title 33, c. 1. [110] Porter, _County Government_, pp. 258-59, 289. [111] _Ibid._, p. 177. [112] Ralph McDanel, _The Virginia Constitutional Convention of 1891-92_, (Baltimore: Johns Hopkins University Press, 1928), p. 103, reports that R. Walton Moore was one of Fairfax County's delegation to the convention, and that he argued strongly for the social values of retaining the court. The motion to retain the monthly county court was defeated, however, by a vote of 41 to 19. [Illustration: The dedication of the Marr Monument in 1904. Copy by Lee Hubbard.] CHAPTER VI THE TWENTIETH CENTURY COURTHOUSE The twentieth century brought Fairfax County more than a new constitutional framework; it brought a new outlook and spirit. Something of this spirit was reflected in the following quotation from a short history and prospectus of the County published by the County Board of Supervisors in 1907: Verily, Fairfax County, old in its history, and hoary in its traditions, is throbbing with a new life and enterprise. Only yesterday were her advantages and possibilities appreciated; yet, today she is attracting settlers from all parts of the Union, and even from foreign countries. Certainly no other section extends a more cordial welcome and more attractive inducements to the investor and home-seeker.[113] If this statement seemed perhaps a bit too eager, it was at least hopeful and optimistic in contrast to the spirit that had prevailed during the long years of reconstruction. It expressed a feeling of confidence that came from having weathered the depression which followed the Panic of 1893 better than many parts of the country.[114] [Illustration: "The Tavern," across Little River Turnpike from the courthouse. Photo by Helen Hill Miller, 1932.] [Illustration: The courthouse about 1907.] One reason for this was Fairfax County's expanding contacts with the city of Washington, chiefly by having become a supplier of its dairy and truck garden produce, and by becoming the residential area for increasing numbers of employees of the Federal governmental establishment. These elements of the economy of Northern Virginia offered more resistance to the depression of the 1890's than was possible in the areas of south and central Virginia which depended on cotton and tobacco. In turn, it was the development of rapid railroad service, both steam and electric, that made both of these developments possible at this time. The critical importance of this transportation was recognized by the County Supervisors' publication: The eastern part of the county is in the immediate vicinity of the cities of Washington and Alexandria; while all sections of it are within a few hours' drive of these cities. In addition to the accessibility of these cities by roadways, three steam and three electric railways connect the county with Washington. The greatest trunk lines north and south traverse Fairfax County. Through trains on the Pennsylvania, Southern, Chesapeake and Ohio, Norfolk and Western, Seaboard Air Line, and the Atlantic Coast Line, are hourly passing through this county, affording convenient and direct connection with all parts of the country. Every section of the county is within easy reach of some one of these roads; and with their double track facilities, and consequent excellent local accommodations, great activity in suburban home building is observed on every hand. Especially is this true along the lines of the electric railways, where numerous villages are springing into existence. The proximity and accessibility to Washington, the most magnificent city in the world, together with the splendid natural advantages of Fairfax, must inevitably make the county rich, populous and great.[115] The heydays of the steam and electric railroads in Northern Virginia were followed in the 1920's by improvement and expansion of the road system.[116] As the number of automobiles increased--and their prevalence was forecast by designation of present Lee Highway as the initial segment of the first transcontinental highway running westward from the zero milestone on the ellipse in Washington--the paving of roads became a major concern of local communities. Both free public highways and toll turnpikes built by subscription and bond issues were undertaken in Fairfax County. Even after the County elected to turn over its roadbuilding to the state under the Byrd Road Act in 1932, the County's leaders continued to have a deep interest in the increased population growth that roads and railroads made possible. Increased population brought increased needs for various new public services. Shortly after the first State Board of Health was established in Virginia in 1900, the counties of the State established local boards. The Chairman of the Board of County Supervisors automatically became Chairman of the Health Board in this early experiment in public health services.[117] The machinery for raising revenue was made more efficient by redrawing the division of labor between the commissioner of revenue and the county treasurer. Most far-reaching in the long run, however, was the enactment in 1920 of state legislation giving counties the option of adopting various managerial forms of government if they so desired. Fairfax County exercised this option in 1951 by adopting the County Executive form of government.[118] Under this form of county government, the Board of Supervisors remained the sole legislative authority of the County, but the executive functions were placed under the supervision of a new officer, the county executive. The county executive, as well as all boards and commissions responsible for special services and administrative functions, were appointed by the Board of Supervisors, and served either for specified terms or at the pleasure of the Board. The Supervisors continued to be elected by the County's voters, each from one of the magisterial districts. This method of election was adopted deliberately as a means of maintaining a balance of political representation of the western and southern parts of the County, which still were rural in their economic and social orientation, and the north, east and central areas of the County, which had been intensively developed as part of the suburbs of Washington and Alexandria. The involvement of the public in county government was seen in many forms. Service on county boards and commissions was one. Also, as newcomers poured into the county seeking homes, the neighborhoods and communities formed civic organizations or citizens associations to provide means for group action on problems of common concern. Parallel to these groups, others, such as Parent-Teachers Associations, formed to deal with school-related problems which were both inside and outside the scope of governmental services in the field of education. These forms of citizen involvement in public affairs--prompted partly by the sheer size of the new demands for service and partly because the newcomers to Fairfax County came from areas where wide participation in local government was taken for granted--had a profound effect on the County's historic outlook on public affairs. No longer was it accepted that certain families or individuals held among themselves the privileges, powers and obligations of governing. This tradition, symbolized by the gentlemen justices of colonial times and the nineteenth century, was replaced by a new system where political leadership was established through service in the community and verified by the ability to win in competition at the polls. The new dimensions of government's role necessitated finding more space for the county's offices. The clerk's office, which historically had been the focal point for the County's continuing administrative functions, ceased to be able to contain all the County's offices as early as the 1920's. An additional building was authorized, but delays in financing and construction postponed its completion until 1934.[119] However, by 1940 this building was so crowded that both its attic and basement had been converted to office space, and many County agencies were using additional rented space in non-County buildings. Plans were developed in the early-1940's for a major addition to the courthouse building. Delays were encountered, first because of the shortages of materials and manpower during the years of World War II, and then because of problems of funding this work amid other urgent demands for tax revenue. Ultimately, both shortages were relieved, and work was begun on the central block and south wing of the courthouse as they appear today.[120] The jail section and wing containing the clerk's records of land transactions and court proceedings were added to the building in 1956.[121] As the County's need for space to house its governmental offices continued to grow through the 1960's, some consideration was given to moving the courthouse to a new location.[122] The transformation of Fairfax from a town into a city in 1961 added a complicating factor to this issue for it meant that technically the County had no control over the land on which its seat of government stood. The City of Fairfax, however, was anxious to keep the center of County government in its existing location, and offered to condemn sufficient land for the County's building needs.[123] The seat of county government remained at Fairfax, but the courthouse square no longer sufficed to contain the complex of buildings involved. By 1969 construction had been completed on a County Governmental Center, later named the Massey Building, to honor Carlton Massey, the first County Executive, who served from 1952 to 1971. A separate building was erected nearby for the County Police Department, and plans were made for other buildings in the future.[124] [Illustration: Rear view of the Fairfax County courthouse complex. Photo by the Office of Public Affairs, about 1972.] [Illustration: View of the Fairfax County Courthouse, the Massey Building, and downtown Fairfax. Photo by Bernie Boston, 1976.] Overshadowing the old courthouse tract, the new center of government nevertheless preserves the evidence of the past by continuing use of the original (north) section of the courthouse building and its 1953 addition, all in an architectural style reminiscent of the colonial period in Virginia. The presence of the past combine with a sense of the present and the future to make the Fairfax County Courthouse both a symbol and a functioning seat of a county government which in the year 1976 had been in existence for more than two centuries. NOTES FOR CHAPTER VI [113] Fairfax County Board of Supervisors, _Industrial and Historical Sketch of Fairfax County, Virginia_, (Fairfax: County Board of Supervisors, 1907), p. 5. [114] Allen W. Moger, "The Rebuilding of the Old Dominion," (Unpublished doctoral dissertation, Columbia University, 1940), pp. 95-96. [115] Fairfax County Board of Supervisors, _Industrial and Historical Sketch_, pp. 5-6. [116] The campaign to improve Virginia's roads had been waged since the 1890's. See, for example, the rhetoric and argument in favor of road improvements set forth in the _Programme of the Virginia Good Roads Convention_, (Roanoke: Stone Printing, Co., 1894) held in Richmond in October 1894. As to the effects of the rise of automotive travel, see Fairfax County Chamber of Commerce, _Historic, Progressive Fairfax County in Old Virginia_, (Alexandria: Newell-Cole, 1928), pp. 20-21, containing a road map of the county's hard-surfaced roads and unimproved roads in 1928. [117] Porter, _County Government_, p. 291. [118] Fairfax County Board of Supervisors, _Annual Report, 1969_, p. 6. [119] Fairfax County Board of Supervisors, Minute Book, v. 5, 318, William Deming was the architect of this project. As with previous expansions of the clerk's office, the old building was torn down and the bricks re-used in the new building. [120] Fairfax County Board of Supervisors, Minute Book, v. 5, 318; v. 9 (1939-40), 501; v. 10 (1941-42), 175; v. 12 (1949-50), 4; v. 18 (1950-51), 497; v. 20 (1953), 519. [121] Fairfax County Board of Supervisors, Minute Book, v. 30 (1960), pp. 418-23. [122] Fairfax County Board of Supervisors, Minute Book, v. 32, 264-65 notes that Reston offered 50 acres for the use of the courthouse, and Tyson's Corner and the intersection of Routes 495 and 50 also were considered. See also, _Ibid._, v. 39 (1964), 117. [123] Fairfax County Deed Book, B-2, pp. 373-376; 503-504. The courthouse commissioners were Charles Little, David Stuart, William Payne, James Wren, and George Minor. [124] Fairfax County Board of Supervisors, Minute Book, v. 36, 313; v. 39, 544. On April 7, 1965 the Board of Supervisors voted to construct a new office building and authorize a referendum for a $5,500,000 bond issue for this project. The bonds were approved by the voters, and the building was built on a 35-acre tract belonging to Mary Ambler, which was condemned by the city and then purchased by the county from the condemnor. The architect for the project was William Vosbeck, and the contractor was the Blake Construction Company, Fairfax County Board of Supervisors, _Annual Report_, 1968, p. 4. CHAPTER VII THE ARCHITECTURE OF THE COURTHOUSE AND ITS RELATED BUILDINGS 1. THE COURTHOUSE COMPLEX Among the courthouses built in England's North American colonies, those of Virginia developed characteristics which expressed peculiarly well the prevailing patterns of landholding and manner of conducting local government. Unlike New England, where each small community had its frame meeting house, containing within its walls "all the ideals, political, moral, intellectual and religious of the people who attended,"[125] the seats of county government in colonial Virginia were centrally located in rural settings. A few county courthouses grew into regional centers of commerce, industry and finance; but most remained independent and apart from any surrounding community, and some may still be seen today standing "as solitary sentinels, symbolic of government."[126] It was also characteristic of Virginia that these courthouses were not single buildings, but were complexes of several structures. The typical courthouse compound was enclosed by a brick wall, inside which were a courthouse, a jail, a clerk's office, and, sometimes, a row or cluster of offices for lawyers. Invariably, also, an inn or ordinary occupied a site within the compound or immediately adjacent to it. This style of courthouse may be found through Virginia, dating from earliest colonial times; and, although many fine courthouses are found in the early architecture of Delaware, Maryland, Pennsylvania and North Carolina, none of these areas developed the design concept of a courthouse compound. This design concept was used in the courthouses of Fairfax County at Springfield (1742-1752) and Alexandria (1752-1800); and it was followed in the county's third courthouse which was completed in 1800. The courthouse tract was situated near the geographical center of the County, at the intersection of the Little River Turnpike and the old Colchester Road. The tract consisted of four acres, acquired by a deed from Richard Ratcliffe and his wife Serian. Specified in the deed were structures including a courthouse, clerk's office and goal, "... and every other building and Machine necessary ..."--the latter presumably referring to gallows, pillory, stocks, and the like. The May 1798 Fairfax County Court Order Book did specify that the courthouse should be forty-by-thirty feet with a twelve-foot portico, the gaol forty-by-twenty, the clerk's office twenty-by-eighteen and covered with slate or tile, a gaoler's house twenty-four-by-eighteen feet, and that stocks, pillory and whipping post also be provided by letting the entire "... building of the same to the lowest bidder."[127] In accordance with statutory requirements, space was delineated for the prison bounds. This was done in March 1800, and the area was described in a survey and report of the commissioners, as follows:[128] In obedience to the order of the worshipful Court of this County, hereunto annexed, we the subscribers in company with Col. William Payne, the Surveyor of this County, proceeded this thirteenth day of March Eighteen Hundred, to lay off ten acres of ground for the prison rules of this County, and have ascertained and bounded the same by the following meets and boundaries, ... including the said four acres, the Court house, Gaol, Clerk's office, the brick Tavern, Kitchen, Stables and store house, and beg leave to report the same with the plat thereof hereunto also annexed.--Given unto our hands and seals: Thomas Gunnell (Seal) N. Fitzhugh (Seal) T. Ellzey (Seal) Whether all of the buildings mentioned in this report actually existed at that time may be questioned, since the survey plat shows only the courthouse, clerk's office and jail. As to these three, the plat showed the courthouse situated as at present, with the clerk's office almost directly south a distance of about 300 feet, and the jail about the same distance south, but in back and west of the clerk's office. The plat does not show roads or other features of the platted parcel, but the known position of the courthouse in relation to the turnpike supports the suggestion that the brick tavern referred to was located on the north side of the turnpike, the building later known variously as the Willcoxen Tavern, the Union Tavern and the Fairfax Tavern. The other buildings referred to in the report apparently left no traces, for except through an occasional glimpse of them in old photographs of the courthouse, they are not noted in the records of the court. These buildings formed a cluster which, if it was not all neatly enclosed within the courthouse fence, at least was immediately adjacent to and integrated with the activities centered in the court. In the first three decades of the nineteenth century, the town of Providence grew up around the courthouse, and by 1835 some 50 dwellings and 200 residents were listed.[129] But the town never eclipsed the courthouse; and, from its commanding position on the gentle hill at the crossroads, the courthouse itself continues to serve as a focal point and symbol of government. _The Clerk's Office._ An office for the Clerk of the County Court was mentioned in the survey of the courthouse lot made in March 1800, and was shown on a location south of the courthouse about 200 feet and east of the jail about sixty feet. According to the survey the office was a relatively small building, one or one-and-one-half stories high, with a chimney at the south end and a door opening on the east side. This office was the depository of all important public records in the county, and therefore was a focal point for much of the activity that occurred at the courthouse throughout the year. A news report in the _Alexandria Daily Advertiser_ of February 10, 1806 called for bids for an addition to the clerk's office and repairs on the "public building," all of which should be in accordance with a plan lodged with Col. James Wren, and constructed of brick "covered with slate."[130] During the next forty years, the functions of the clerk grew in both size and importance as he was called upon to serve both the County court and the circuit court. The need for repairs combined with the need for more space required increasing attention to the old building, until, in 1853, it was determined that a new office building for the clerk must be built. Newman Burke, George W. Hunter, Jr. and Alfred Moss were appointed commissioners to oversee the demolition of the old office building and the construction of a new one. Fortunately, the commissioners' notice to builders, inviting bids on these jobs, was published in the _Alexandria Gazette and Virginia Advertiser_ of July 15, 1853, and provides a detailed description of the materials and construction to be used. It included the instruction that such of the old materials as could be used in the rebuilding should be so used. Like the courthouse building, the clerk's office suffered damage and deterioration during the war years of 1861-65. When the courthouse compound became a headquarters for Union army patrols, and civilian government either ceased or moved to a temporary seat elsewhere, care and custody of the clerk's office could not be guaranteed. Many of the record books and files were taken to places of safekeeping in private homes. However, many could not be moved in time to prevent them from being scattered, taken, lost or destroyed as soldiers occupied the office building. When the war ended, the task of re-equipping the office and restoring it to usefulness was a major one. [Illustration: The clerk's office about 1907.] In 1875, the clerk's office burned and subsequently, a new office building was added to the courthouse complex. It was a two-story brick building, larger than the old clerk's office and located beyond it to the south of the courthouse. It was probably completed by 1881, at which time the board of supervisors was appropriating funds for new furnishings. The architecture of this newest office presented a mixture of three styles. In overall appearance, its square shape, hipped roof and functional design were reminiscent of the eighteenth century buildings of James Wren. The late nineteenth century's preference for exterior decoration was illustrated by a dentiled cornice, a belt of corbelling three courses wide in the brickwork below the cornice, and brick pilasters on each side of the main doorway, topped by scrolls and brackets supporting the pediment. In the center of the building on the second floor, a Palladian-style window was installed, providing a contrast to the design of the other windows. Two courses of corbelling also appeared on the two chimneys located at the back and in the center section of the building. Notwithstanding these exterior decorations, the general design of the office represented a recognition of the needs of office workers and the response of late nineteenth century architects to provide light, air, and functional efficiency in the arrangement of space for offices. Telephone service and electric lights were installed in the clerk's office in 1902.[131] After 1932, the old clerk's office was demolished. A new office building was erected south of the courthouse in 1934, with labor and materials provided by Federal and Virginia relief funds. This building was demolished when the extensive addition was made to the courthouse, 1951-1954. A new wing was put on the back of the courthouse in 1956 to accommodate the rapidly increasing quantities of archives generated by the business of courts and the clerk's office in a county whose population was growing at an unprecedented rate.[132] _The Jail._ As shown in the survey of the courthouse tract, made in March 1800 by the County Surveyor, William Payne, the jail was located on the southwestern corner of the original four-acre tract. No contemporary descriptions or records of the jail have survived, but the survey sketch shows a two-story building with chimneys at each end. Presumably the construction material for the jail was brick, since the other principal buildings in the Fairfax courthouse compound were made of this material. With regard to the interior arrangement and description of major features, conjecture is also necessary. But, again presumptions may be made that its facilities were the same as others of the time--for example, that the bars used on doors and windows were the flat type (rather than round or other shapes), which were laid across each other to form a lattice and riveted together where they overlapped. Also, in accordance with contemporary custom, it may be presumed that the jailor and his family made their home in the same building with the prisoners, and so attended to their meals and other needs. Exactly when and how the first jail was constructed at the courthouse site is not entirely clear. Payne's survey in 1800 showed a jail building on the site. Yet only nine years later the _Alexandria Daily Advertiser_, April 8, 1809, carried an invitation for bids to build a jail at Fairfax Court House. Moreover, although the records of the county court for the next fifty years contain references to repairs and construction work for the jail, they customarily fail to include descriptions of work to be done. Accordingly, little can be gleaned from these sources to aid the architectural history of the courthouse complex. [Illustration: The jail, built about 1886. Photo taken in 1972.] [Illustration: Police Department, about 1947. Photo courtesy the Fairfax County Historical Society.] Along with the other public buildings at the courthouse compound, the jail suffered during the years of war from 1861 to 1865. When civil government ceased to function at the courthouse, competing groups that claimed civil authority in Fairfax County used jail facilities in neighboring Alexandria and Leesburg when the need arose. During the latter years of the war, when Union troops occupied the courthouse, the jail offered its facilities as a storehouse as well as a place of detention for military prisoners. But the Army of the Potomac had little time or incentive to keep the jail in good repair, and so, like the courthouse, it suffered extensively from the war. During the 1870's, repairs and construction of additions to the original building restored the jail to service. The 1879 G. M. Hopkins _Atlas_ showing the courthouse complex depicts the jail as being larger than the courthouse in size. In 1884, fire destroyed this building, and arrangements had to be made to use the Alexandria city jail until a proper new jail could be constructed for the county.[133] The new jail was located directly behind (west of) the courthouse, facing onto the Little River Turnpike. Its materials and construction indicate that the original portion was added to on two later occasions. When finally completed, the jail was a two-story T-shaped brick building, with a one-story wooden porch across the full length of the front. In the original section (facing onto the turnpike) the windows have plain wooden pediments. The cornice and chimney tops are corbelled, and there are iron cresting and finials on the ridge of the hipped roof. In the second section, which forms part of the stem of the "T," there are segmental arches over the windows and an ornamental cornice consisting of a course of bricks laid vertically. In the third section, which completes the stem of the "T," the brickwork is laid in Flemish bond (matching the courthouse brickwork in contrast to the common bond of the rest of the jail), and the windows are topped with flat arches. The second and third parts of the building are covered with a gable roof.[134] In this new jail building, the jailor had living quarters in the front portion, and until 1948 these were used as his residence. The building itself ceased to be used for detention of prisoners shortly after that time, for when the addition to the courthouse was completed in 1956, jail facilities were incorporated into this addition. Since 1956, the old jail building has been used for offices of various county agencies, including the juvenile court and probation office, civil defense office, fire board, police dispatcher, and recreation department.[135] _Associated Buildings and Structures._ Certain structures were associated with the courthouse because they were required by statute, and others had their origin in custom and convenience. In 1792, when the legislature of the new state government revised the law relating to organization of the local courts, it reenacted most of the features of the system which had been followed in colonial times. By law all counties had to build and maintain a courthouse, jail, pillory, whipping post, and stocks. This law also required that there be two acres of land around the buildings of the courthouse, and that prison bounds of ten acres should be provided for the "health and exercise of prisoners."[136] A report of a survey of the courthouse tract in March 1800 shows metes and bounds for a four-acre tract within a larger ten-acre area, and states that this land was for the purpose of erecting a courthouse, jail, clerk's office, kitchen, stable, and storehouse plus providing an area to serve as the prison bounds. Additionally, a well was dug a short distance south of the courthouse. Altogether, these comprised the complex of structures associated with the court in the first half of the nineteenth century. _The Tavern._ The brick tavern was a substantial building, built on the north side of the Little River Turnpike directly across from the courthouse complex. No detailed description of this building as it appeared in 1800 has been found. It was, at least in later years, a multi-story building which rivalled the courthouse in size, and expanded as the patronage of the circuit-riding judges and their entourages of attorneys and others combined with the regular passage of travellers on the Little River Turnpike to create a prosperous business climate. After the Civil War, the brick tavern was purchased by Col. H. B. Taylor, who operated it during the 1870's and 1880's. Because of its favorable location near the courthouse, the tavern continued to be frequented by those who had business with the court, and lawyers maintained their offices there. An advertisement in the _Fairfax Herald_ of April 8, 1887 refers to the building as the Union Hotel, and describes it as a three-story brick building with annex, containing about twenty-five rooms, with stable and outbuildings, a two-acre garden and a fine well--"a desirable residence for summer boarders." Later in 1887 the name was changed from Union Hotel to Fairfax Hotel and its management was taken over by James W. Burke.[137] The hotel continued to be operated until 1932 when it was demolished to clear the site for subsequent construction of a building for the National Bank of Fairfax. The bricks, mantels and doors from the hotel were re-used in construction of the home of Helen Hill and Francis Pickens Miller, called "Pickens Hill." It is located on Chain Bridge Road north of Fairfax, and in recent years has become a major building of the Flint Hill private school complex. _The Well._ At the time of construction of the courthouse, a well was dug on the south side of the building. Over the years, pictures show a variety of overhead coverings to shelter the well and its users. The well was a large one, appearing to be four or five feet in diameter at the top, and was surrounded by a raised platform. Standing on this platform, one drew water from the well by a windlass operated by a hand-crank. Later the box on which the windlass was mounted was fitted with a hand pump, and a trough for filling buckets or other containers was placed at the side of the well. This well served the courthouse into the twentieth century, but was closed and capped when the town of Fairfax installed underground water mains. The gazebo-like well structure was moved to Sully. "_Public Comfort Station._" Many references to the early privies in use on the courthouse grounds appear in both the court order books and the board of supervisors minute books. As recently as 1931, outside toilets were still in use. In October of that year, "the County Engineer was instructed to make necessary repairs to the public comfort station on the Court House lawn."[138] _MEMORIALS_ _Memorials of the Wars._ On the lawn in front of the old courthouse stand two monuments to the honored dead of four wars. The John Quincy Marr monument was erected on June 1, 1904, by the Marr Camp, Confederate Veterans, commemorating the first Confederate officer killed in the Civil War. The second monument was erected under the auspices of the Fairfax County Chapter of the Daughters of the American Revolution. On a bronze plaque on one side are listed those Fairfax Countians who gave their lives in World War I and on the other, a plaque listing those who gave their lives in World War II and the Korean conflict. [Illustration: Naval cannon in front of the courthouse.] [Illustration: The Marr Monument commemorating the first Confederate officer killed in the Civil War, June 1861. Photo from the National Archives.] Two naval cannons stand on either side of the Marr monument, pointed toward the National Bank of Fairfax, formerly the site of the brick tavern. Facing the bank, the cannon on the left is inscribed with an anchor and the following lettering: 12 PDR Boat Howitzer 1856 J.A.D. U.S.N.Y. Washington 757 LBS. 58 PRE No. 45. The cannon on the right has inscriptions which are very worn and indistinct. There is an engraved anchor, but except for a letter here-and-there, the inscription is unreadable. [Illustration: World War I Memorial Plaque.] [Illustration: World War II and Korean Conflict Memorial Plaque.] _Plaques and Portraits._ Mounted in the inside north entrance hall beside the oldest portion of the courthouse are three plaques. One is a tablet with 160 names of Civil War veterans of Marr Camp, Confederate States of America. The second is a memorial to George Auld (1832-1919), born in Scotland, who "was for many years Chairman of the Board of Supervisors of Fairfax County, Virginia...." The third is a plaque commemorating the building of the first addition to the courthouse, A.D. 1929, W. I. Deming, Architect, and C. H. Brooks, Builder. In the central entrance hall, there is a bronze plaque commemorating the large addition to the courthouse completed in 1954, Robert A. Willgoos and Dwight G. Chase, Architects, and Eugene Simpson and Bro., Contractor. A large mural, painted by Esther L. Stewart in 1954, is hung above the landing of the grand central staircase. It depicts Fairfax County scenes, buildings, and portraits of Lord Fairfax, George Washington, and George Mason. [Illustration: Mural at the Central Staircase, Fairfax County Courthouse. Painted in 1954 by Esther L. Stewart.] On the brick floor of the arcaded porch of the first (1800) section of the courthouse, is a National Register plaque (1974 listing) placed by the Fairfax County History Commission in 1976. In the hall inside hangs a plaque from the Virginia Historic Landmarks Commission commemorating the building's placement on the State Register in 1973. Hanging on the walls of this oldest court chamber are oil portraits of county notables. (See Appendix for biographical listing.) On the courthouse lawn, a dogwood tree was planted in 1954 dedicated to the firemen of Fairfax County. A small bronze plaque with a poem and the dedication was set in a cement post under the tree, by the Firemen's Auxiliary. In the wake of its many unresolved historical mysteries, the restored courthouse remains a functional courtroom, as required by the terms authorizing the work. Yet it cannot claim to represent any particular period of Fairfax County's history with full historical or architectural integrity. As now redesigned and rebuilt, the courthouse presents an outward appearance presumably similar to its original form. The interior achieves the pleasant appearance and atmosphere of a working courtroom of the past. NOTES FOR CHAPTER VII [125] Catherine Fennelly, _The New England Village Scene: 1800_, (Sturbridge: Old Sturbridge Village, 1955), p. 9. [126] Sidney Hyman, "Empire of Liberty" in _With Heritage So Rich_, (New York: Random House, 1966), pp. 5-6. [127] Fairfax County Deed Book, B-2, pp. 373-377; 503-504. [128] Fairfax County, Record of Surveys, 1742-1856, p. 93. [129] Joseph Martin, _Gazetteer of Virginia and the District of Columbia_, (Charlottesville: Martin, 1835), p. 168. [130] Fairfax County, Record of Surveys, Section II, p. 93, March 13, 1800. [131] Fairfax County Board of Supervisors Minute Book, #1, pp. 89, 91, 196, 206 (1871-1881). [132] Interview with Thomas Chapman, Jr., former Clerk of the Circuit Court; Fairfax County Board of Supervisors Minute Book #6, pp. 580-582, August 20, 1934; architectural drawings, 1951-1956, Facilities Management Office. [133] Fairfax County Court Minute Book, 1882-1885, April Court, 1884, "The County Jail having been destroyed by fire ...," the county court ordered that Alexandria city jail be used until a proper jail could be erected in the county. [134] Fairfax County Court Minute Book, June Court, 1891. [135] Interview with Thomas P. Chapman, Jr. [136] Hening, _Statutes_, October 1792, XIII, 453-455. [137] _Fairfax Herald_, May 13, 1887, notes that Mr. T. R. Sangster has removed his law office to the Fairfax Hotel; The Union Hotel and Fairfax Hotel sometimes have been assumed to be separate buildings. However, identical advertisements of this hotel appeared in the _Fairfax Herald_ on April 8, 1887 and May 6, 1887, the former calling it the Union Hotel, and the latter calling it the Fairfax Hotel. The April 29, 1887 _Fairfax Herald_ reports the rental of the Union Hotel by Burke. By tradition, the hotel building across from the courthouse has been known as the Willcoxen Tavern or just simply "The Tavern." [138] Fairfax County Board of Supervisors Minute Book, #6 p. 139, October 2, 1931. 2. THE COURTHOUSE _The Courthouse Plan and Its Architect._ The design of the Fairfax County Courthouse followed the Virginia tradition that the seats of civil government should be designed with dignity as well as adequacy for their function.[139] Consequently, the courthouse building, which in other respects was a plain rectangular two-story brick structure, departed from strict utilitarian design with its open arcade on the ground floor front, and its cupola in the center of the roof, serving as a base for the flag pole and housing the bell which was used to announce the convening of court. The advantages of the two-story building for innovations in design and decoration were even more evident with respect to the interior. Entered through the front door which opened into the arcade, the courtroom gave the same impression of vaulted space that is associated with the nave of a church.[140] The space over the arcade on the second floor was enclosed, and presumably used as the jury room. This room was entered from a balcony located across the front of the building (the back of the court chamber) and along each side of the building. At the front of the chamber (as it appeared in the late nineteenth century) was a raised bench, and directly to the left of the judge's seat was a doorway leading into a pair of rooms used by the Court. No descriptions of the interior of the courtroom as it appeared in the early part of the nineteenth century have been found; but it is probably that the business of the court was transacted, as it had been since early colonial times, at a large table, centered in the main chamber of the courthouse and spacious enough to seat the justices of the County Court and the sheriff, if the business of the day concerned him. One or more separate tables customarily were provided for the clerk of the court and those of his staff who attended the court session. It was also customary to separate the portion of the courtroom occupied by the Court from that occupied by the public, and this was accomplished by installation of a wooden railing or partition. Fireplaces heated the courtroom chamber and a second-floor fireplace heated the jury room above the open arcade. Details of the plastering and woodwork, the lighting fixtures and other hardware are not known, yet it seems certain they must have been of good taste and design, for their selection was in accordance with a plan prepared by James Wren, the designer of The Falls Church, Christ Church in Alexandria, and probably Pohick Church. Although James Wren's name appears frequently in the public records of Fairfax County during the eighteenth century, his principal legacy was the architecture he designed and helped to build. In the 1760's references to him are found throughout the Vestry Books of Truro Parish and Fairfax Parish.[141] In 1763 he prepared the plans for construction of The Falls Church, which formed the nucleus of the village which grew up around it. In 1767 he designed the plans for Christ Church in Alexandria. Wren and William Weit were each paid forty shillings in 1769 for plans furnished to the vestry, for Pohick Church.[142] He had, through design of these and other structures, earned a reputation as the foremost builder and designer of buildings in his locality[143]--a reputation attested to by numerous contracts, recorded in the Fairfax County Court Order Books, under which young men were apprenticed to him to learn the "trade sciences or occupation of a Carpenter and Joiner." According to Melvin Lee Steadman's genealogy of the Wren family,[144] James Wren was born in King George County about 1728, the son of John Wren and Ann Turner Wren. He learned his trade of carpentry and joining there, and about 1755 he moved to Truro Parish, Fairfax County. The first reference to James Wren in the land records of Fairfax County is found in a deed dated June 15, 1756 in which one James Scott conveyed to Wren a tract of 200 acres on which Wren was then living. Ultimately, Wren built a home, now called "Long View," adjacent to the present city of Falls Church, and assembled a substantial plantation, known as "Winter Hill," now within Falls Church City. He also operated, at Winter Hill, "Colo. Wren's Tavern." James Wren served as a justice of the County Court. He was a trustee of the Town of Turberville which in 1798 was laid off on land near the Little Falls of the Potomac but never fulfilled the hopes of its promoters. Following his military service in the Revolutionary War he held various offices in the County government, including that of sheriff and commissioner of the tax. He acquired extensive landholdings in Fairfax and Loudoun Counties. James Wren was married three times; first, in 1753, to Catherine Brent of Overwharton Parish (Aquia Church); next, about 1771-74 to Valinda Wade, and last, to Sarah Jones of Alexandria in 1804. He died in 1815 and was buried at Long View.[145] The architecture which James Wren created for the courthouse--as well as his churches and the numerous private buildings he designed and built under contract or for his friends--reflect the general level to which that art had advanced in colonial Virginia. The styles were adapted from prototypes in England.[146] Innovations which were made in adapting these styles to American use were, in most instances, attributable to the differences in building materials and the types of skilled labor which were available to the American builder. _The Origin of the Courthouse Design._ The architectural design which James Wren selected for the Fairfax County Courthouse utilized several features which already were familiar hallmarks of public buildings in colonial Virginia, and in particular the colonial capitol at Williamsburg--probably the most impressive public building in Virginia at that time. The use of brick as building material, the use of two stories, topped by a cupola, and, most strikingly, the use of arches, all combined to suggest the influence of this capitol building on the courthouse design.[147] The courthouse was far from being a copy of the capitol and Wren added to these familiar features several new ones that made the courthouse an architectural innovation in its own right. When it was completed in 1800, the Fairfax County Courthouse was the first example of a new design which architectural historians have called "the town hall style,"[148] and have traced to English town halls of the late seventeenth and eighteenth centuries. Like the Fairfax County Courthouse, these town halls were two-story brick or stone buildings which presented to their front a gable-end, ground-floor arcade (or piazza) covering the main opening onto the street, an entrance set into the end wall, and, frequently, a cupola. The town halls of Blandford in Dorset (1734), and Amersham in Buckinghamshire (1682) illustrate these features with variations of details. No documentary evidence has been found to show how James Wren evolved his design for the Fairfax County Courthouse; but it seems probable that he knew of this style that was enjoying current popularity in England, and that John Bogue, the "undertaker" who built the courthouse, was familiar with the methods of constructing such buildings, for Bogue had just come to America from England in 1795. While the similarity of geometric and structural exterior design strongly suggests that the Fairfax County Courthouse had its architectural ancestry in the English town halls of that period, the analogy is weaker when functions are compared. The courthouse for Fairfax County was designed and used entirely as the seat of local government. The commercial activity that was attracted to the courthouse site on "court days" enjoyed no special privileges or facilities in the building. In contrast, town halls in eighteenth century England often served the dual purpose of providing a facility for transaction of public business and carrying on the commerce of the community. The style of the English town halls provided space in the open arcade of the ground floor to house a farmers' and tradesmen's market, and space in the second floor chamber for the town council to meet and do its work.[149] The origin of this type of building is not entirely clear. It is difficult to imagine it growing naturally in the political and social climate of the villages which grew up clustered around England's medieval castles and monasteries. At the time when town-and-market halls were common in the central squares of free towns in Italy, Germany and the Low Countries, they were absent in England. Their appearance in England dates from the seventeenth century when town government developed its own identity, and when British political and cultural alliances with the Dutch were established.[150] Imported to Virginia as a form of courthouse building, this town hall style became a popular prototype for buildings erected in several counties during the first three decades of the nineteenth century. After being introduced in Fairfax County in 1800, this style appears in the Nelson County Courthouse built in 1807, the Caroline County Courthouse built in 1808, the Sussex County Courthouse built 1825-28, and the Madison County Courthouse built 1829-30. Variations in the layout of the interior appeared in the use of the space over the arcade; sometimes it was used for the jury room, and at other times it was used to accommodate a balcony for spectators.[151] After 1824, however, a new style of courthouse building may be seen in the public buildings of Virginia counties. Based on the neo-classical lines of the State Capitol, designed by Thomas Jefferson, there came into being a series of courthouses which were suggestive, if not actual, representations of the seat of state government.[152] _The Courthouse._ In its exterior appearance the Fairfax County Courthouse underwent little change during the first century of its service. Indeed, looking at the courthouse square in 1900, it might have seemed that the courthouse was the only building that had not been rebuilt, relocated or significantly expanded. The effects of passing time were more evident in the evolution of the layout and furnishings of the court. Throughout the first half of the nineteenth century the interior of the courthouse probably remained similar to the layout described in colonial times. Generally the focal point of the court chamber was a long table at which the County Court was seated, flanked by smaller tables where the court's clerks did their work. Customarily, also, a railing across the room separated this space from visitors whose business or curiosity led them to crowd in upon the court and its staff. As long as the gentlemen justices of the court were in reality, as well as name, the governing authority of the County, this arrangement of the courthouse chamber was the most sensible that could be suggested. As the purely judicial duties were isolated and assigned to the professional judges of the District Court it became customary to renovate the court rooms to install the features which have become associated with litigation--the raised bench of the judge, the jury box, the witness stand, and counsels' tables. These changing ideas of what a court chamber should look like became established during the first half of the nineteenth century, and were reflected in the courthouses built in Virginia during that period. Therefore, when the Fairfax County Courthouse was restored to service after the Civil War, its interior design resembled that which was customary for judicial chambers.[153] That the task of renovation and restoration was extensive is indicated by a report in the _Alexandria Gazette_ of October 17, 1862 stating that "The interior of the courthouse of Fairfax County has been entirely destroyed. Nothing remains of the building but the walls and the roof." Moreover, the work of renovation had to be carried out under the double difficulty of shortages of funds and labor that was skilled in cabinetmaking and metalworking. In the end, the restoration of the courthouse was a gradual process in which first one and then another improvement was added. No grand design seems to have been followed or a complete record of accomplishments maintained. Hence, evidence of the courthouse furnishings is seen in such separate notations in the Court Minute Books as follow: October Court, 1866. Ordered that the Com. of Public Buildings be instructed to purchase enough green-baise to cover the table in the bar And have it covered before the Circuit Court commenses.[154] December 11, 1876. Ordered that the Com'r of Public Buildings have the sawdust removed from the floor of the Courtroom, and have said floor covered with a substantial cocoa matting at the expense of the Court.[155] December Court, 1882. ... Some person or persons have entered the Court House Building in the night, without authority and have damaged Said building and have greatly annoyed the citizens living nearby by violently ringing the bell. It is therefore ordered by the Court, that such trespass ... will be punished to the full extent of the law.[156] The bell referred to by the Court was a standard feature of many Virginia courthouses, and was rung to announce the convening of court sessions. In the Fairfax County Courthouse, the bell was hung in a cupola on the roof, and rung with a bell-pull passing through the building's attic to the balcony level of the courtroom.[157] A major change in the appearance of the courtroom occurred with the installation of wooden benches in the public section of the chamber. Tradition holds that the benches had been pews at one time in Jerusalem Baptist Church located on the Ox Road between Fairfax and Fairfax Station. This church had been built on the site of the old colonial "Payne's Church." Illustrating the period when gaslights replaced candles, an elaborate brass chandelier fitted for gas illumination has been found in the courthouse attic. It is possibly the fixture which the sheriff was directed at the February 1890 court to purchase, for a price not to exceed $25.00. In about 1902, electric lights were installed.[158] During the restoration of the courthouse following the Civil War one major alteration of the exterior appearance of the courthouse occurred when the brickwork between the windows on the first and second floors was removed to change the windows into single two-story-long vertical openings. The courthouse windows remained this way until 1968 when renovation of the original section of the courthouse was carried out, and double rows were reestablished as they appeared in photographs taken during the Civil War. [Illustration: The old courthouse, 1800, prior to restoration in 1967.] [Illustration: The old courthouse after restoration in 1967.] Reportedly, another major refurbishment of the courtroom occurred about 1920. In keeping with the style of that time, the emphasis was on panelling with dark, polished woods, and moderately ornamental carving which achieved an appearance of massiveness and dignity. The judge's bench was located at the west end of the courtroom on a raised platform and behind a heavy wooden balustrade. Against the west wall of the room and behind the judge's bench, wooden panelling covered the space from the southwest corner of the room to a doorway beside the bench which led into smaller chambers in the rear. This panelling was topped with a swan's neck pediment behind the judge's chair. At floor level, beside the judge's bench and behind the balustrade, were the witness stand and clerk's desk. The jury box was located along the south wall of the room and faced an enclosure where tables for counsel and reporters were placed. These, in turn, were separated from the public seats by a carved wooden balustrade. Seating for the public on the ground floor was provided in two sections of wooden benches--the former church pews referred to earlier--separated by a center aisle. At the rear of this section was another balustrade setting it apart from the open space inside the door to the entrance arcade. The two fireplaces in the corners of the east end of the room were bricked-in and covered with plaster. On the south wall, a stairway provided access to the balcony over the open portion of the room adjacent to the outer entrance. From the rear of the balcony were doorways into a jury room and small office which occupied the second-floor space over the entrance arcade. Three rows of benches, each raised one step above the one in front, provided additional seating space for visitors in the balcony. The ceiling of the courtroom was sheet metal (tin) with a pattern of ridges arranged in rectangular shapes. Central heating was provided by hot water radiators. In 1929, an addition was constructed on the south side at the rear of the original courthouse, making an L-shaped building. In this process the clerk's office which was built in 1876 was torn down. Harmony of scale, materials and style were maintained between the old and new sections.[159] [Illustration: The old court room prior to restoration. Photo by Lee Hubbard, 1966.] Twenty years later, in 1951-56, the courthouse again was expanded by addition of a center block, and another wing identical with the original and first addition segments. At the rear (west side) of these new portions, two wings were added to house, respectively, the records of the clerk's office and a new, larger jail. With the completion of this construction, the old courtroom in the original wing of the building ceased to be used regularly for judicial business. Two large courtrooms and several smaller chambers in the center block of the building provided facilities for hearing cases. The new and larger building also provided space for the offices of the County's elected officials and most of the major boards, commissions and administrative departments which comprised the county's government in the 1950's.[160] In both exterior and interior appearance, the courthouse additions of 1931 and 1954 were designed to harmonize with the original style James Wren established in 1800. The use of brick, gable-end roof lines, proportioning of the scale of various segments of the building, compatible fenestration and colonial period styles in hardware and painting all contributed to this result. Most influential of all in maintaining this architectural integrity, perhaps, was the use of archways and open arcades at the entrances to the center block and two wings. These open arcades, with their simple, undecorated keystone arches are the distinguishing features of the Fairfax County Courthouse in the 1970's as they were in 1800. [Illustration: The central entrance to the 1954 addition to the courthouse.] NOTES--2. THE COURT HOUSE [139] William O'Neal, _Architecture in Virginia_, (New York: Walker, 1968), p. 17, remarks that "Traditionally, in Virginia buildings housing civil government have been developed beyond the utilitarian. This tradition, of course, has given us not only a remarkable group of eighteenth and nineteenth century courthouses, but, just yesterday, the very beautiful City Hall complex of Norfolk by Vincent King." [140] _University of Virginia Newsletter_, (Charlottesville: Institute of Government, University of Virginia), XLIII, No. 11, (July 15, 1967). [141] A summary of these references is contained in Melvin Steadman, _Falls Church by Fence and Fireside_, (Falls Church, Va.: Falls Church Public Library, 1964), pp. 463-520. [142] O'Neal, _Virginia Architecture_, pp. 127, 133, 143, _Minutes of the Vestry, Truro Parish, Virginia_, 1732-1785, (Lorton, Va.: Pohick Church, 1974), p. 114. [143] Steadman, _Falls Church_, p. 471. [144] The genealogy and a summary history of the Wren family, both in England and America, is in Steadman, _Falls Church_, pp. 463-520. [145] Janice Artemel, "James Wren, Gentleman Joiner," (unpublished manuscript, Falls Church, Va., 1976). [146] According to Sir Banister Fletcher, _A History of Architecture_, Rev. ed., (New York: Scribners, 1963), p. 1126, "In general, the architecture of a particular area mirrored that of the homeland of the colonizers or settlers of that area, with modifications occasioned by climate, the types of building material obtainable, and the quality of labour available. Thus, in seventeenth century New England building followed the pattern of English weather-boarded heavy timber-frame prototypes, while in eighteenth century Virginia we find a 'Georgian' architecture often almost indistinguishable from that of eighteenth century England." [147] Carl Feiss, "Court Houses of Virginia," lecture delivered at the meeting of the Latrobe (Washington) Chapter, Society of Architectural Historians, held at the Arts Club of Washington, November 8, 1968. [148] Marcus Whiffen, "The Early Courthouses of Virginia," _Journal of the Society of Architectural Historians_, XVIII, No. 1 (March 1959), pp. 2, 5-6. [149] Thus the term "market hall" is sometimes also used to designate these buildings. At times, the market activities may even overshadow the building's associations with government, as in the case of Blandford, Dorset, where a sign on the building identifies it as the Corn Exchange, without mention of the Council's chamber. [150] Sir Kenneth Clark, in his book, _Civilisation_. (New York: Harper & Row, 1969), pp. 194-220, describes the impact of Dutch accomplishments in the arts, and the impact of their influence on such Englishmen as Christopher Wren. The adoption of the Dutch style of market hall in England may well have been a gradual one, utilizing the already familiar design of the house of a typical town tradesman, which presented to the street a series of arched openings where work was done and wares were displayed during the day. At night these arches were shuttered, and the tradesman had his living quarters on the second floor over his shop. Sir Banister Fletcher, _A History of Architecture_, (New York: Scribners, 1961), p. 463. [151] Whiffen, "Early Courthouses," p. 6. [152] William O'Neal, _Architecture in Virginia_, (New York: Walker, 1968), pp. 22-25. [153] Whiffen, "Early Courthouses," p. 3. [154] Fairfax County Court Minute Book, 1863-1867, p. 484. [155] Fairfax County Court Minute Book, 1875-1879, p. 162. [156] Fairfax County Court Minute Book, 1882-1885, p. 34. [157] Examination of the courthouse attic in July 1967 revealed a bell, complete with mounting and wheel, with the following inscription: "TW & RC SMITH ALEXANDRIA 1844." It has not been determined when this bell was installed in or removed from the cupola. It was rehung in the cupola and rung again in 1976. [158] Examination of the courthouse attic in July 1967 revealed a brass chandelier with six arms, approximately 24 inches long, fixed to a central hub. Burners at the end of each arm were fitted to hold glass globes or lamp chimneys. Fairfax County Court Minute Book, 1888-1892, p. 216. The end of the gaslight era occurred shortly after 1900, when, according to Thomas Chapman, former Clerk of Circuit Court, electric lights were installed in the clerk's office in 1902 and shortly thereafter in the courtroom. [159] Interview with Thomas Chapman, former Clerk of Circuit Court. [160] Fairfax County Board of Supervisors Minute Books, No. 17, p. 4, November 21, 1949; No. 18, pp. 2-9, November 15, 1950, pp. 296-298, May 22, 1951. 3. RESTORATION OF THE ORIGINAL WING OF THE COURTHOUSE, 1967 _Origin of the Restoration Project._ After the second addition to the courthouse was completed in 1954, the old courtroom in the original wing of the building ceased to be the focal point of the court's activity. Similarly, it ceased to receive the attention needed to deal with the natural deterioration produced by use and the passage of time. By the early 1960's these effects were evidenced by leaking roofs, unreliable plumbing in the heating system, cracked and crumbling plaster, loosened floors and hardware, and the like. In order to retain its usefulness, the original wing of the courthouse needed substantial renovation. At this time, an interest in the old courtroom was expressed by the Fairfax County Bar Association and the county's newly formed Historical Landmarks Preservation Commission which together proposed that the work of renovation be done in such a way as to restore the original appearance of the courtroom. The Bar Association formed a Special Committee for Restoration of the Old Court Room under the chairmanship of C. Douglas Adams, Jr., and the assistance of the Board of Supervisors was sought.[161] In December 1964, the Board appropriated funds for developing a restoration plan. Walter Macomber, a local restoration architect who had done similar work on a number of early Virginia landmarks, was retained to prepare the necessary plans. In March 1966, the Bar Association's Committee reported the completion of this preliminary work to the Board, and successfully secured the latter's approval together with an appropriation of $90,000 for actual construction work. This work was commenced without further delay and was completed in the spring of 1967.[162] _Problems of the Restoration._ While the work undertaken in 1965 and 1966 was at the time referred to as a restoration, it was in fact impossible under the circumstances to reproduce with complete accuracy the appearance of the courthouse in 1800. No descriptions of the courtroom or other records of building specifications had been found; nor was any special research in eighteenth century sources undertaken for this purpose. As a result, the work produced a courtroom with idealized colonial-period interior design and furnishings in a building shell with reconstructed floor plan and structural design of the early Federal-period (during which it had initially been built). Numerous difficult problems were faced in this reconstruction, and, for the most part, they were resolved in ways that served primarily to create a room with the atmosphere of Virginia's colonial period, and secondarily to build an authentic replica of the Fairfax courthouse as of any particular historical date. [Illustration: FLOOR PLANS.] An initial problem connected with the exterior alterations was that of securing bricks and mortar to match those of the original courthouse. Bricks secured from a manufacturer of specialty bricks turned out to be a close match for the originals which were thought to have been fired from clay dug in Fairfax County.[164] Specially mixed mortar made from sand, lime and white cement also closely simulated the color and texture of the older mortar. Bricks were laid in Flemish bond which matched the courthouse and part of the old jail building. Using these new materials, broken and crumbling bricks were replaced throughout the building, and the three long windows on both the north and south sides of the courthouse were altered to form two rows of smaller windows, with the space between the first and second-floor rows filled with new brickwork. This change in the fenestration restored the building to its appearance as shown in Civil War photographs of the courthouse. Shutters similar to those shown in the same pictures were added to the windows on both floors. On the roof, some repairs were needed to restore the slate shingles. In the cupola, wooden louvres were repaired, the cupola was painted, and a weathervane restored to the top. An existing galvanized sheet metal roof was allowed to remain unchanged. For the inside of the building there were no photographs or drawings of the earlier periods, and reconstruction was influenced largely by physical evidence disclosed as the interior was systematically dismantled down to the building's outer shell. When woodwork, hardware, plaster and flooring were removed, it was found that much of the framing timber was infested by termites, and had to be replaced. In this process numerous signs of earlier workmanship were revealed. Beneath the existing tin-plate ceiling was a plastered ceiling and remnants of a painted frieze of red, yellow, blue and green. Behind this ceiling were laths laid over hand-hewn oak rafters. A few of the original hand-split laths and hand-made nails remained in this ceiling. In its reconstruction, the ceiling was furred and replastered without any decoration. No lathwork was found on the side walls, and in the reconstruction fresh plaster was applied directly to the bricks.[165] [Illustration: Interior of the gutted courthouse during restoration in 1966. Photo by Lee Hubbard.] The flooring which was removed from the central section of the courtroom sloped from the back (east end) of the room toward the judge's bench (at the west end). Beneath this floor was an older floor of brick. It was not determined whether this brick work had been the original floor of the courtroom or whether another wooden floor had overlaid it prior to the one just removed. In its reconstruction, however, the architect specified that a flat floor of polished pine should be laid over the bricks.[166] In one part of the main floor the older brick work was allowed to remain exposed. This was in the vicinity of the fireplaces in the two corners of the open area at the rear (east end) of the courtroom. These two fireplaces were reopened and restored and their brickwork was extended to form spacious hearthstones. The corner fireplaces showed signs of a three-stage evolution. They were originally used as open fireplaces. Holes in the brickwork above them suggested, however, that at some later time the open fireplaces were replaced by wood-burning or coal-burning stoves standing on the brick hearths with their stovepipes fitted into the chimneys. Finally, when the stoves were replaced by central heating and hot water radiators, the entire fireplace wall was sealed with brick and plastered over. In their restoration the corner fireplaces were reopened and refurbished as they were thought to have appeared in their original condition. As the side walls were cleared of plaster, they showed signs of staircases from the ground level the balcony along the north as well as the south side of the courtroom. Thus when the stairs along the south wall were replaced, a similar set of stairs was built and installed on the north side of the courtroom. No dates for the original installation or removal of these staircases were determined, and it was presumed that the dual staircases were part of the original design of the courthouse. A more difficult puzzle was presented by a series of holes in the outer wall aligned at the level of the balcony and about the size used for beams. Speculation by the architect suggested that these holes might have been intended for use in extending the balcony along three sides of the courtroom instead of merely along the back end, or in covering the entire room and creating a full second story for the courthouse. No determination of their use was made, and they were disregarded in the reconstruction of the courtroom. [Illustration: Interior of restored courtroom facing the judges' bench. Photo by Charles Baptie, 1971.] [Illustration: Interior of restored courtroom facing balcony. Photo by Lee Hubbard, 1969.] Still another mystery which was not solved in the restoration concerned the two chimneys located in the corners at the west end of the old courtroom. No fireplaces or hearthstones were found in the courtroom floor, and when the interior was dismantled it was discovered that the chimneys rested on beams above the courtroom ceiling. These chimneys were not utilized in reconstructing the courtroom, and the only suggestion offered was that they probably had been connected by long pipes to stoves in the room below.[167] Two doors in the west wall of the courtroom on either side of the judge's bench presented a further problem since they were not part of the original 1800 building, but had been part of the addition built in 1929. One of these doors led into a set of judge's chambers and the other (in one corner) opened into a corridor leading to the main portion of the addition running south from the old courthouse. In the restoration these doors were retained, but fitted inconspicuously into the panelling behind the judge's bench. Above the doors, the architect restored two windows which he felt had been part of the original building.[168] Restoration of the judge's bench brought still more difficulties to maintaining the original design of the courtroom. As plaster was removed from the wall behind the judge's bench, the bricks showed marks of an arch. The judge's bench which ultimately was constructed and installed at the west end of the courtroom was, like the other woodwork, created by the architect "according to patterns used in colonial times."[169] Other details of the interior were handled the same way. Hardware used by the architect was all new, but used old designs. Since the original colors used in the interior were not determined, the architect used white and gray shades of paint similar to those in colonial buildings. From the ceiling in the center of the courtroom were hung chandeliers found in the courthouse attic. While not of "colonial" design, they were used because they were considered appropriate due to former association with the courthouse. And, as noted earlier, the pews which possibly had been obtained from the Jerusalem Baptist Church were retained in the restored courtroom.[170] _General Setting and Building Site._ The original Fairfax County courthouse today comprises the north end section of the courthouse building. Together with its immediately adjacent grounds, the present courthouse complex occupies almost the entire four-acre tract which was the original site. This tract still forms a square near the center of the City of Fairfax, at the intersections of two main roads, Routes 236 (Little River Turnpike) and 123 (Chain Bridge Road). The general setting is gently rolling terrain, and the courthouse site is on a slightly higher elevation than the surrounding area, with stone retaining walls on the two sides facing the turnpike and road. On the west side of the courthouse building is a parking lot occupying approximately two acres. The twelve-story county office building (Massey Building) completed in 1969 is located approximately 200 yards south and west of the courthouse. _The Exterior_ _Overall Dimensions._ The restored, original courthouse building is a plain rectangle, 61 feet long by 32 feet wide. It is oriented with the long sides facing north and south, with the main entrance at the east end of the building. A portico extends across the entire east end of the building, covering an area 12 by 32 feet. The height of the building at the gable ends is 32 feet; and the height of the eaves from the ground is 21 feet. _Foundations._ As originally built, the courthouse rested on brick foundation walls, anchored at the corners in brick piers, with a crawl space of approximately 1-1/2 to 2 feet in height beneath all but the front (east) quarter of the floor space. Additional brick bases, approximately 18 inches square and resting on the ground, were located in the crawl space beneath the two columns supporting the courthouse balcony. In the late nineteenth century, a partial basement was dug beneath the central section of the courtroom.[171] As reconstructed, the exterior foundation walls were pointed up and repaired, and were strengthened by the addition of several new footings. Across the back (west end) of the building, the crawl space was deepened to a uniform 3 feet, and four 12 � 12 inch brick piers were placed on concrete footings. In the center section of the courthouse, the basement walls were extended 1 foot to carry the joists of the new floor, the outside entrance was closed up, and a new staircase for the interior entrance was built at the south end of the basement. Next to the basement toward the front (east end) of the building, another crawl space (measuring 8-1/2 � 25-1/2 feet) was deepened to a uniform 3 feet, and a new wall was built on the east side, extending the full width of the building. This new wall was 8 inches thick, and constructed of cinder block and brick, anchored with 16 � 16 � 12 inch concrete footings. Beneath both crawl spaces and the basement a 3-inch thick concrete slab was laid. The crawl space did not extend to the front exterior wall of the building. A space of 13 � 30 feet across the front of the building, consisting of the area beneath the open entrance foyer of the courtroom, originally had been covered only by a layer of bricks resting on the bare ground. As reconstructed, this brick was taken up and re-laid on a 4-inch thick slab of concrete which had been poured on a base of 4 inches of crushed stone covered by polyethylene film. _Walls._ The exterior walls of the courthouse are constructed of red brick, with new bricks specially selected during the 1967 restoration to match the remaining original materials, and laid in Flemish bond, 1-1/2 feet thick. Across the front of the building, the portico is entered through a series of arches supporting the second-floor front section of the building. The three arches across the front of the building are 7 feet wide and 11 feet high at the center of the arch. The arches at the north and south ends of the portico are 6-1/2 feet wide by 11 feet high. The brick columns supporting the arches are 1-1/2 feet square. The arches and columns are plain except for white marble keystones and white marble slabs, 6 inches thick, placed at the foot of each arch and serving as bases for the columns. _Chimneys._ All five of the chimneys which the courthouse had in the early nineteenth century were retained in the reconstruction. The two chimneys on each of the north and south sides stand at points which correspond to the four corners of the courtroom, and rise 11-1/2 feet above the roofline at the eaves. In the center of the table end at the front of the building, the fifth chimney stands, extending 5 feet above the ridge of the roof. All five chimneys are corbelled with two courses of brick at the top, and with a single course of brick 1-1/2 feet below the chimney top. All of the chimneys measure 2 feet by 1 foot 9 inches. _Doors and Windows._ In the 1967 reconstruction of the courthouse, the fenestration was changed to resemble the appearance of the building in about 1861. Accordingly the three tall (14-1/2 foot) existing windows on the north and south sides of the building were converted into two sets of smaller windows, one above the other, and regularly spaced along the sides of the courtroom. In the upper row, a fourth window was located over the arch in the portico, and serves the rooms in the second-floor chamber at the front of the building. The chamber also has two windows on the front of the building. The upper row windows are of a double-hung sash design, with 12 over 8 panes (9 inches � 10-3/4 inches) set in wooden frames and sills. Overall dimensions of these windows are 4 � 5-1/2 feet. The three windows on the lower level are slightly larger--4 feet � 6 feet 9 inches, and have 12 over 12 panes. Both rows of windows are shuttered; those of the upper row are louvred, and those in the lower row have solid panels.[172] On the ground level at the front of the building, the main doorway of the courthouse is located in the center of the wall, and flanked by one window on each side. The door is panelled, and 8-1/2 � 4-1/2 feet in size. In the reconstruction, new window sashes and a new door were installed, but the existing jambs were used wherever possible. All shutters, glazing materials and hardware used in the reconstruction were new. _Roof._ The original roof of the courthouse was covered with slate shingles, and the reconstruction of the building merely applied repairs to these shingles as needed. Little of the slate which remained in 1967 was thought to have dated from the original construction, however, because of the extensive repairs and renovations carried out after the Civil War. _Cupola._ The cupola, located at the ridge of the roof, 9-1/2 feet from the gable end at the front, was part of the original design of the courthouse and houses a bell once used to announce the convening of the court sessions. The cupola was constructed of white pine, and consists of a square box in which is mounted an octagonal compartment with louvred sides. Topping the panelled portion of the cupola is an onion-shaped dome, culminating in a ball which, according to photographs over the years, served as a base for a weathervane or flagpole. In reconstruction, a weathervane found in the courthouse attic was installed on the cupola's top. The roofing of the cupola dome is sheet metal. _Ornamentation._ The overall appearance of the courthouse is plain, and, with the possible exception of the cupola, there is only one feature which shows the intention to combine ornamentation with functionalism in the architectural design. This feature is a round "fan window" framed by a circle of bricks in the center of the gable end of the building's front wall. The lower half of this window consists of four pie-shaped wooden panels. The upper half of the window consists of louvres. _The Interior_ _Foyer._ The double doors in the center of the portico at the east end of the courthouse open inward into a foyer at the rear of the courtroom. This area is 29 feet long, the full width of the building. The width of the area varies, however, because of the fireplaces across each of the front corners and the curving rear edge of the central (or spectator) portion of the courtroom. At its narrowest point in front of the double doors the foyer is 10 feet 4 inches wide, and at its widest points on either end of the room, it is 12 feet wide. The foyer space is entirely open, with flooring composed of bricks (8 � 3-1/2 inches) varying in color from deep red to charcoal gray. These bricks are laid with three-quarter inch seams and white mortar. The fireplaces in the corners at each end of the foyer have square (2 foot-8 inch) openings, with brick lining and a 5 inch facing surrounding the opening and painted flat black. The fireplaces are entirely framed with plain architraves and friezes, and are topped with simple mantels. Each fireplace measures 3 feet 11 inches wide by 4 feet 3 inches high. Along the walls of the foyer, panelled wainscotting, painted white, is installed. Because of the unevenness of the floor, the height of this wainscotting varies from 4 feet 2 inches to 4 feet 3 inches. Its panels are of varying width, from 3 to 6 inches, and are beaded. At the base of the wainscotting is a 5-inch baseboard. Above the wainscotting, the walls and ceiling are finished in plain plaster with walls painted mauve and the ceiling white. Lighting needs are minimal because of four outside windows located in the foyer, and because of light received from the central section of the courtroom. On each side of the double door and at each end of the foyer lanterns are mounted on the wall. These fixtures are of the type commonly used as carriage gate or guardhouse lanterns, and are 9 � 6-1/2 � 5 inches, with glass panels on three sides set in dark metal frames. The tops are of curved metal designed to shield the lanterns from the wind. Inside the lanterns, light comes from a single candle-shaped light bulb, set inside a small hurricane lamp chimney. The hardware on the double door consists of a box lock with the brass knob polished and the lock-box and keeper painted flat black. At the top and bottom of the door black metal shot bolts of designs commonly found in eighteenth century buildings are installed. _Central Section._ Space for the seating of spectators is provided in the central section of the courtroom. The floor level of this section is raised 7-3/4 inches above the floor of the foyer, and free-standing wainscotting of the same style and height as are around the foyer walls separate the foyer from the central section. The floor of this section is constructed of 5-1/4 inch dark-stained pine boards. Entry into this section is along two aisles at the sides, running between the spectator seats in the center of the room and the balcony staircases set against the walls on the north and south sides of the room. Spectator seating is provided in five rows of benches of pine, with natural finish on the seats and back rests, white painted sides and bases, and natural cherry moldings along the top of the back rests and arms. Along the base at the front of each bench, is a 6 inch strip painted black. The back of the back rest is painted white down to a point 6 inches above the floor, where a foot rest of dark-stained pine is installed, and below this the base is painted black. The five rows of benches in the center section are curved, generally following the arc of the edge of the raised flooring, and measure 17 feet 9 inches from end to end. Each bench seats about twelve people. The walls of the center section are painted mauve, and the ceiling is white. There are no lighting fixtures in this section of the courtroom. At the rear of the central section, two lightly stained solid oak pillars support the balcony. _Staircases._ Staircases to the balcony are located along the north and south walls of the central section. The initial plans for reconstruction of the courtroom in 1967 called for only one staircase, on the south wall. The decision to add a staircase on the north side came during the reconstruction when evidence of an earlier staircase on that side was revealed as the plaster was removed. From this it was conjectured that the courthouse of the early nineteenth century had had two staircases, but that one had been abandoned in reconstructing the building after the Civil War. The present stairways each have 18 steps with 8 inch risers and treads 2 feet 11 inches wide by 10 inches deep. They form a single flight, open style stairs, with no brackets and plain balusters, 1 inch square, painted white and supporting a cherry handrail. Newel posts at the top and foot of the stairway have turned shafts with cube bases and capitals. A flat sphere of solid wood tops the capital of the newel post. Beneath the staircase on the north side of the building is a closet, and on the south side is a stairway leading into the basement. The doors to this closet and stairway are made of vertical beaded boards similar to the wainscotting, each equipped with two "H" hinges of black metal having a pebble finish and black metal box locks with small polished brass doorknobs. _Balcony._ The courtroom balcony contains three rows of wooden benches similar to those on the ground floor, except that they are straight instead of curved. The rows are arranged so the two rear benches are on daises raised 9 inches above the one in front. Solid-panelled free-standing wainscotting is set along the back of the rearmost bench. The first two rows of benches are 17 feet 7-3/4 inches long, while the rear bench is 22 feet long, allowing space at each end for the steps of the raised dais. In front of these benches, across the full width of the balcony between the two staircases, is a railing of plain white spokes (matching the balusters of the staircase) and a plain cherry handrail 2 feet 11 inches in height. The ceiling of the balcony is painted flat white and the walls are mauve. White beaded board wainscotting standing 3 inches high is around the sides and rear wall of the balcony similar to that on the ground level. Three recessed lights provide light for the balcony. _Jury Room._ At the rear of the balcony an aisle 3 feet wide runs the full width of the building, allowing passage behind the rows of balcony benches and access to the jury room through doors near each end of the aisle. The jury room uses the space above the first-floor portico, an area 12 � 19 feet. The doors to the room are 2 feet 10 inches by 6 feet 10 inches, with 4 panels. Doors and frames are painted white, with brass doorknobs and modern locks set in the doors. The wall between the jury room and balcony is a new stud partition which is finished with white plaster, as is the ceiling. Lighting is provided by 3 recessed lights set in the ceiling and equally spaced. The walls of the room have a 3-inch baseboard, but no wainscotting. Centered in the exterior (east) wall of the room is a fireplace, reopened in the 1967 reconstruction. This fireplace measures 4 feet 6-1/2 inches by 4 feet 7-3/4 inches, and is framed with a plain white architrave and mantel. A hearth of brick extends 18 inches out from the fireplace. Opposite the fireplace is a 12 by 18 inch plastered masonry pier extended up from the exterior wall at the rear of the portico on the first floor below. In the ceiling next to the pier is located a 30 by 36 inch opening into the attic, with a ladder built into the partition wall immediately below. _Bench, Bar and Jury Box._ Across the front of the courtroom is a railing separating the judges bench, jury box, and space for counsel tables from the central section of the courtroom. This railing, similar to those of the staircases and balcony, stands 2 feet 8-1/2 inches high. Gates 3 feet wide and mounted on double spring hinges are placed in the railing at the head of each side aisle in the central section. Each gate has an S-curve wooden support built into it for added support. The enclosure formed by the railing or bar is raised 7-1/2 inches above the floor level of the central section, and is floored with yellow pine, tongue-and-groove, 3-inch wide flooring. In the center of this enclosure, against the west wall of the courtroom is the judge's bench, flanked on its right by the witness stand. The bench itself is relatively small, measuring 6 feet 5 inches across and 4 feet 7 inches from back to front. Three steps on each side permit access from both directions, and have balustrades on the front side similar to the railings and other balustrades in the courtroom. On the wall behind the judge's bench, there are two, high 12-over-8 pane windows, backed by closed, full-louvred shutters. Behind the shutters is the solid plaster wall of the present courthouse's main corridor. Between and below these windows is a wooden raised-panel screen serving as a back for the judge's bench. Two 6-panelled sections at each end of this screen are flanked by fluted pilasters with modified capitals supporting a plain entablature. Between these sections are 3 panels, the two on either end being composed of 3 tiers of panels edged with fluted pilasters. The center element of this panel consists of two large raised rectangular panels topped by a semi-circular louvred wooden fan design, then a round keystone arch, the whole portion of the composition topped by a high monumental pediment. At its center point, the height of this composition is 8 feet 6 inches. This ornamental panelling also covers the space where doorways previously had been cut for passage between the courtroom and other portions of the courthouse as they were built from 1930 onward. Prior to the 1967 reconstruction, a doorway in the west wall was located on the judge's left side as he sat on the bench. As presently reconstructed, this doorway has been closed and covered by panelling, but a new door was cut through on the judge's right-hand side, and the inside of the door is constructed and fitted so as to serve as the end piece of the ornamental woodwork behind the judge's bench. The jury box is in the southwest corner of the courtroom. Across the front of the box is a panelled solid railing, standing 2 feet 8 inches from the floor of the west end of the courtroom. The jury box contains 2 rows of benches, each raised an 8-inch step above the one in front. The front row is 9 feet 3 inches long, with aisles 18 inches wide at each end allowing passage from the second row to the front, and openings in the railing. Not having this function of access, the back row of the jury benches is 14 feet 1 inch in length. Benches in the jury box are designed and constructed similar to those of the balcony. The witness box is located between the judge's bench and the jury box. This box is constructed of solid wooden screen, painted white and topped with a cherry handrail. The screen forming the back of the box is plain; the screen at the front is in the shape of half of an octagon, and the face of each element contains a single recessed panel similar to those on the front of the judge's bench. The side of the witness box facing the jury is open to allow entry into the box, and the side next to the judge's bench is formed by the side of that fixture. The flooring of the box is made of 3-inch wide, yellow pine boards, finished naturally, and the flooring is raised one step (7-1/2 inches) from the courtroom floor. The dimensions of the box are 2 feet 10 inches across and 3 feet 8 inches from back to front. Illumination of the area of the bench and jury box is provided by a variety of fixtures. On the wall at the rear of the jury box two carriage gate or guardhouse lanterns are attached. Opposite these, on the wall at the north side of the room, two other, similar lanterns are located. In the ceiling above the area enclosed by the bar, 10 recessed lights are installed in two rows of 4 lights across the front and rear sections, and a pair are located equidistant between these rows. Hanging from the ceiling over the central area are chandeliers which were found in the attic of the courthouse during the 1967 reconstruction, and refurbished and wired for electric lights. The lighting fixtures consist of six 24-inch arms, made of hollow brass tubing, extending out from a central hub. The hub, in the shape of a cup and decorated with a series of radial ridges, is on the lower end of a 38-inch hollow brass shaft, equipped at the top with a hook for suspension from the ceiling. As installed in the courthouse, each chandelier hangs from a fixture in the ceiling by a metal chain approximately 5 feet long. At the end of each arm of the chandelier are plain disc-shaped bases (3 inches in diameter) which holds one candle-shaped electric socket and a glass hurricane lamp chimney. _Basement._ A small basement measuring 11 feet in width lies across the center section of the courthouse. An interior entrance to this basement is provided by a staircase located at its south end. This stairway, 3 feet 6 inches wide with 7-3/4 inch risers, has 10 steps, and is not panelled or painted. At the present time, the basement is used to house heating and air conditioning equipment. Small windows are located at both the north and south ends of the basement. Approximately square, these windows measure 2 feet 2 inches by 2 feet 9 inches, with 3-over-2 panes (6 by 12 inches). Both have sills composed of a single slab of stone 2 inches thick. Both also are below ground level, and open into brick-lined spaces for light and air dug out by the wall's foundations. The space for the window on the north side of the building measures 4 feet 1 inch by 3 feet 3 inches. On the south side of the building, however, the dug-out space measures 7 feet 8 inches by 2 feet 9 inches and suggests that this was, at an earlier date, the point where an outside entrance to the basement was located. This is corroborated by markings on the inside of the basement wall which show that a doorway in the north end of the basement has been bricked up, and also that a second window similar to the existing one has been closed up with bricks, leaving the sill slab in place. From the basement, galvanized steel ducts covered with insulating material are run through the crawl spaces beneath the courtroom floor to outlets and intakes for circulation of air. These openings are located in the sills of the recessed windows of the courtroom and in the bases of the benches for spectators and jurors, and are covered with steel grilles painted to blend with the fixtures in which they are set. 3. RESTORATION OF THE ORIGINAL WING OF THE COURTHOUSE, 1967 [161] Other members of the Special Committee were Edward D. Gasson, James Keith, John T. Hazel, Jr.; W. Franklin Gooding, Assistant Clerk of the Courts; Senior Circuit Judge Paul E. Brown; and Bayard Evans, Chairman of the Fairfax Historical Landmarks Preservation Commission. [162] The cost of restoration was originally estimated at $74,488, exclusive of architect's fee, which was to be 12 per cent of the total cost. Ultimately, the cost of the work was slightly in excess of $84,500, including the architect's fee, according to the architect's records; Fairfax County Board of Supervisors Minute Book #45, pp. 192, 301, 406; Cost Sheet, Walter M. Macomber. [163] The building contractor for this work was E. L. Daniels. [164] Interview with Thomas Chapman, former Clerk of the Circuit Court. [165] The frieze was disregarded because it was not considered part of the original courtroom interior, and no drawings, photographs or descriptions of it were preserved. [166] The sloping floor which was replaced was not dated, but probably was installed when the courthouse was renovated following the Civil War. [167] On this matter the following statement in the _Northern Virginia Sun_, January 8, 1966, 1, is of interest: "Anyone familiar with the old courthouse will have noticed that it has five chimneys. The two closest to the bench are resting on wood above the ceiling, Macomber discovered. This, he said 'confused' him. He thinks that they probably were connected by long pipes to stoves in the courtroom. Yet he is not sure. It appears to Macomber that they were added at some later time, but he will not know until he examines them more closely during the restoration. If ... [there] are post-1800 andirons [in these fireplaces], out they will go in the restoration." In an interview on March 2, 1970, however, Macomber stated he felt that these chimneys had been connected to stoves after the fireplaces which they served were blocked up. [168] The architect expressed the opinion that the addition to the west end of the courthouse dated from about 1900; _Northern Virginia Sun_, January 8, 1966, 1. However, no documentary evidence from the county records supports this date; _Fairfax County Free Press_, August 25, 1966. [169] Transcript of interview with Walter Macomber, March 2, 1970. As to the arch marks, Mr. Macomber said: "On the front wall I found a semi-circle deeply incised in the brick wall. I concluded there had been an original arched design there and I reproduced such an arch as it might have looked based on my studies of colonial architecture." [170] Transcript of interview with Walter Macomber, March 2, 1970, contains the following: Question: Do you know what the original color of the room was? Macomber: No. But since most of the buildings of that period were either white or light gray, I used these colors. Question: Was any of the original ironwork left? Macomber: No. The ones installed are new but made from old designs used in the colonial period. Question: Where did the old chandeliers you installed in the ceiling come from? Macomber: They were discovered in storage. They are not colonial, but since they were probably used at some time I thought it appropriate to use them. Question: Where did you get your ideas for the woodwork? Macomber: I created it according to patterns used in colonial times. The benches were brought in after the Civil War and had come from the Payne [Jerusalem] Baptist Church. I thought it appropriate to use them. [171] _Fairfax County Free Press_, August 25, 1966; The basement measured 11 � 25-1/2 feet and was located across the midsection of the building. At the north end of the basement a stairway led to an outside entrance, and at the south end another stairway provided interior access. The basement was lined with 8-inch thick brick walls, and was divided into two rooms of approximately equal size connected by a doorway 2-1/2 feet wide. [172] Prior to the reconstruction of the courthouse in 1967, the shutters at the windows on the first floor of the front of the building were louvred in the top half and solid panel in the lower half. In the reconstruction, these shutters were replaced using shutters with solid panels. APPENDIX A FAIRFAX COUNTY CLERKS OF THE COURT 1742-1976 Sources: Frederick Johnston, _Memorials of Old Virginia Clerks_; Fairfax County Court Order Books. Catesby Cocke 1742-46 John Graham 1746-52 Peter Wagener 1752-72 Peter Wagener, Jr. 1772-98 George Deneale 1798-1801 William Moss 1801-33 F. D. Richardson, _pro tem_ 1833-35 Thomas Moss 1835-39 Alfred Moss, _pro tem_ Oct.-Nov., 1839 S. M. Ball 1839-52 Alfred Moss 1852-61 Henry T. Brooks (military) 1861-65 W. B. Gooding (military) 1865-66 William M. Fitzhugh (military) 1866-67 F. D. Richardson, _pro tem_ 1866-69 D. F. Dulany (military) 1869-70 F. D. Richardson 1870-80 F. W. Richardson, _pro tem_ 1880-81 F. W. Richardson 1881-87 W. E. Graham 1887-1903 F. W. Richardson 1904-35 John M. Whalen 1936-45 Thomas P. Chapman, Jr. 1945-67 W. Franklin Gooding 1967-75 James E. Hoofnagle 1976- APPENDIX B JUSTICES AND JUDGES OF THE FAIRFAX COUNTY, CIRCUIT AND DISTRICT COURTS 1742-1976 Lists Compiled By E. Sprouse, P. Howe, V. Peters, A. Lewis, and N. Netherton. (Because of missing books and records, this listing is incomplete.) First Commission for Fairfax County, _1742_ William Fairfax John Colvill Richard Osborne Jeremiah Bronaugh Lewis Elzey William Payne Thomas Pearson John Minor William Henry Terrett John Gregg Gerard Alexander Edward Barry Daniel Jennings Thomas Arbuthnot (_1742-1748_ Fairfax County Court Order Books are missing.) _1749_ John Minor William H. Terrett Daniel Jennings John Carlyle William Ramsay Charles Broadwater Daniel McCarty John Colvill Moses Linton Lewis Ellzey William Payne Richard Osborn George W. Fairfax Anthony Russell Joseph Watkins George Mason Jeremiah Bronaugh Thomas, sixth Lord Fairfax Chief Justice Stephen Lewis _1750_ John West Lawrence Washington Catesby Cocke _1752_ Fielding Turner _1753_ Thomas Colvill _1754_ Hugh West _1755_ John West, Jr. Sampson Turley Sampson Darrell James Hamilton Oneas Campbell _1757_ Henry Gunnell _1758_ John Hunter Robert Adam William Bronaugh William Payne, Jr. _1759_ Bryan Fairfax Townshend Dade Benjamin Grayson Edward Blackburn Lee Massey William Adams _1762_ Hector Ross _1764_ George William Fairfax William Ellzey John West George Mason Daniel McCarty John Carlyle William Ramsay Charles Broadwater Thomas Colvill dead John West, Junior Bryan Fairfax Sampson Dorrell Sher. Townshend Dade Quo: Henry Gunnell _1767_ Marmaduke Beckwith Robert Adam John Hunter dead Richard Sanford Wm. Payne Benjamin Grayson William Adams Edward Blackburn Hector Ross & Alexander Henderson Gent. George William Fairfax Lewis Ellzey John West George Mason Daniel McCarty John Carlyle Wm. Ramsay Charles Broadwater John West, Junr Bryan Fairfax Sampson Dorrell Quo: Townshend Dade Henry Gunnell Wm. Adams George Washington & Daniel French Gent: _1768_ George W Fairfax Lewis Ellzey John West George Mason Daniel McCarty John Carlyle Wm. Ramsey Charles Broadwater John West Junior Bryan Fairfax Sampson Darrel Townshend Dade Quorum Henry Gunnell Marmaduke Beckwith Robert Adam Richard Sanford Wm. Payne Benjamin Grayson dead Wm. Adams Hector Ross Alexander Henderson George Washington Daniel French & Edward Payne Gent: _1770_ John West George Mason Daniel McCarty John Carlyle William Ramsay Charles Broadwater John West Junr Bryan Fairfax Sampson Darrell Quor. Henry Gunnell Robert Adam William Payne William Adams Hector Ross Alexander Henderson George Washington and Edward Payne Gent. (_1774-1782_ Fairfax County Court Order Books are missing.) _1783_ John Gibson George Gilpin Richard Chichester Robert McCrea Charles Little James Hendricks Josiah Watson Henry Darne Thomas Lewis Robert T. Hooe _1784_ James Wren David Stuart David Arell Charles Alexander _1785_ William Deneale John Moss _1786_ George Minor William Herbert _1787_ Roger West Richard Conway Thomas Gunnell John Fitzgerald William Brown Benjamin Dulany Thomas Pollard James Waugh John Potts _1788_ Martin Cockburn William Lyles (_1793-1796_ Fairfax County Court Order Books are missing.) _1797_ Thompson Mason James Keith, Jr. _1798_ Francis Adams John Stewart Alexander James Coleman Elisha C. Dick Charles Eskridge John Gunnell William Gunnell John Jackson William Lane, Jr. Ludwell Lee Richard Bland Lee Samuel Love John Potts, Jr. Richard Ratcliffe William Stanhope George Summers William H. Washington _1801_ Francis Adams Charles Alexander John S. Alexander Charles Broadwater James Coleman Richard Conway William Deneale Elisha C. Dick Benjamin Dulany Charles Eskridge John Fitzgerald George Gilpin John Gunnell Thomas Gunnell William Gunnell William Herbert Robert T. Hooe John Jackson William Lane, Jr. Ludwell Lee Richard B. Lee Charles Little Samuel Love Daniel McCarty Thompson Mason George Minor John Moss William Payne John Potts, Jr. Richard Ratcliffe William Stanhope David Stewart (_sic._) George Summers William H. Washington James Waugh John West Roger West James Wren Now dead: Love, Fitzgerald, T. Gunnell, R. West, J. Gunnell, J. S. Alexander, D. McCarty Now moved: Ludwell Lee Now refuses to qualify: Summers Now in D. C.: Gilpin, Hooe, Alexander, Conway, Herbert, Potts, Dick, Washington Now disqualified: Adams _1802_ Augustine J. Smith Humphrey Peake John Keene James H. Blake _1803_ Samuel Adams, Jr. _1804_ Richard Coleman Spencer Jackson George Graham _1807_ Present: William Gunnell, Jr. William Payne Wm. Deneale Augustine J. Smith Hancock Lee Humphrey Peake Spencer Jackson Absent: George Summers, Gentleman Persons to be recommended to the Governor as proper persons to be commissioned by him as Justices of the Peace, or added to the Commission of the Peace for the County: John C. Hunter John C. Scott Daniel McCarty Chichester Joseph Powell Edward Dulin James L. Triplett John Y. Ricketts George Mason _1808_ Present: William Gunnell, Jr. James Waugh William Lane, Jr. Thomson Mason George Summers Humphrey Peake George Graham James L. Triplett Absent: James Coleman William Gunnell, Jr. David Stuart William Payne William Deneale Thompson Mason Richard Ratcliffe George Summers Augustine J. Smith James Waugh Hancock Lee Humphrey Peake George Graham John Coleman Acting in _1816-17_ James Coleman Wm. Lane, Jr. Thompson Mason Rich. Ratcliffe John Jackson Augustine J. Smith Rich. M. Scott Humphrey Peake Rich. Coleman Spencer Jackson John C. Hunter James L. Triplett John T. Ricketts Lawrence Lewis Wm. H. Terrett Henry Gunnell, Jr. Alex'r Waugh Geo. Minor Geo. Gunnell Francis L. Lee John W. Ashton Dan'l M. Chichester Geo. Taylor Wm. H. Foote James Waugh James Sangster Thomas Moss Dan'l Dulany Chas. G. Broadwater Wm. H. Fitzhugh _1819-1826_ William A. G. Dade Acting in _1824_ Rich. Ratcliffe Rich. M. Scott Lawrence Lewis Spencer Jackson John C. Hunter James L. Triplett Alex'r Waugh Geo. Gunnell Geo. Mason Augst. J. Smith John W. Ashton Geo. Taylor Wm. H. Foote James Sangster Thos. Moss Dan'l Dulany Chas. L. Broadwater Wm. H. Fitzhugh Chas. F. Ford Benedict M. Lang Eli Offutt John Jackson Robt. Ratcliffe Chas. Ratcliffe Wm. E. Beckwith John Geanit Mottrom Ball Rich. C. Mason Joshua Hutchison Sam'l Summers _1831-1838_ John Scott Acting between _1825-42_ Geo. Millan Silas Burke Rich. H. Cockerille Rich. C. Mason Dennis Johnston John D. Bell John Gunnell Frederick Carper Spencer M. Ball Edward Sangster James Millan Thomas Nevett John H. Halley Wm. Ball John Millan Geo. Mason John B. Hunter Henry Fairfax Wm. H. Alexander Frederick A. Hunter Wm. A. Chichester Alfred Moss Chas. C. Stuart James Hunter Benj. F. Rose James Cloud Fred. M. Ford Wm. R. Selectman Nelson Conrad W. W. Ball Jno. Powell Jno. A. Washington Wm. H. Wren _1839-52_ John Scott John W. Tyler _1852-55_ Silas Burke William Ball Wm. R. Selectman W. W. Ball John Millan Nelson Conrad William H. Wrenn James Hunter Ira Williams Thomas Suddath George H. Padgett James M. Benton John R. Dale Thos. A. Davis S. T. Stuart Levi Burke James Fox Robert M. Whaley Abner Brush John Cowling F. W. Flood Francis E. Johnston John W. Hickey R. C. Mason R. McC. Throckmorton W. W. Elzey Willis B. McCormick William Barker F. M. Ford Francis C. Davis John W. Hickey Spencer Jackson John N. Taylor John B. Farr J. C. Gunnell John R. Grigsby _1858-60_ John C. Gunnell Tenley S. Swink Richard L. Nevitt Daniel Kincheloe Francis C. Davis Richard Johnson W. B. McCormick F. C. Davis Ira Williams Francis E. Johnston Geo. H. Padgett George Burke John Burke John Dole John A. Washington Alfred Leigh Francis C. Davis James Hunter W. B. McCormick William L. Lee Wm. W. Ellzey John Cowling Benjamin F. Shreve William S. Seitz James P. Machen George Padgett James Simpson ---- Mann W. W. Ball Richard Johnston B. D. Utterback F. M. Ford Cyrus Hickey A. S. McKenzie R. C. Mason Henry Jenkins _1863-1867_ Thomas P. Brown James H. Rice Wm. Terry Andrew Sagar Herain Cockrill Samuel Pullman Reuben Ives Daniel W. Lewis E. E. Mason Levi Dening Harry Bready William A. Ferguson William Walters William T. Rumsey Talmadege Thorne Courtland Lukens Metrah Makely John B. Troth George B. Ives Josiah B. Bowman Job Hawxhurst George F. M. Walters J. W. Barcroft George W. Millan Cyrus Hickey James C. Dentz B. D. Utterback Thomas E. Carper _1866_ John Powell Lewis George Francis Davis _1867_ T. Wm. Barcroft W. B. Bowman Thomas E. Carper Francis C. Davis James C. Dentz M. E. Fora Wm. E. Ford John B. Troth Job Hawxhurst George B. Ives Richard Johnson William Lee Alfred Leigh Courtland Lukens Metrah Makely E. E. Mason Samuel Pullman James H. Rice W. T. Rice Jonathan Roberts Silas Simpson Daniel Sims Cyrus Stickey B. D. Utterback Wm. F. McWalters _1868_ T. Wm. Barcroft W. B. Bowman Thomas C. Carper N. P. Dennison Francis C. Davis James C. Dentz Wm. E. Ford John B. Troth Job Hawxhurst Richard Johnson George B. Ives Alfred Leigh Courtland Lukens Metrah Makely E. E. Mason Sam Pullman W. T. Rice Silas Simpson Daniel W. Sims Cyrus Stickey R. D. Utterback Geo. F. M. Walters _1869_ T. Wm. Barcroft W. B. Bowman Jacob Brooks Carter Burton John L. Detwiler Wm. E. Ford John B. Troth George B. Ives Job Hawxhurst Richard Johnson Alfred Leigh Daniel W. M. Lewis Courtland Lukens E. E. Mason Samuel Pullman James H. Rice T. W. Rice Samuel Shaw Silas Simpson D. Sims Cyrus Stickey B. D. Utterback E. W. Wakefield Wm. Walters _1870_ T. Wm. Barcroft W. B. Bowman Jacob Brooks Carter Burton George B. Ives Job Hawxhurst Courtland Lukens Samuel Pullman E. W. Wakefield Geo. F. W. Walters _1870-1874_ Richard H. Cockerille _1874-1885_ James Sangster _1886-1899_ D. M. Chichester _1897-1903_ James M. Love _Virginia Circuit Court Judges_ John M. Tyler, 1852-1860 No record of a court held, 1861-1863 Edward K. Snead, 1864-1865 Henry W. Thomas, 1866-1868 W. Willoughby, June 1869 Lysander Hill, November 1869 James Keith, 1870-1894 C. E. Nicol, 1895-1907 Louis C. Barely, 1907 J. B. T. Thornton, 1908-1918 Samuel G. Brent, 1918-1928 Howard W. Smith, 1928-1930 Walter T. McCarthy, 1931-1944 Paul E. Brown, 1944-1966 Arthur W. Sinclair, 1950-1977 Harry L. Carrico, 1956-1961 Calvin Van Dyck, 1961-1967 Albert V. Bryan, Jr., 1962-1971 Barnard F. Jennings, 1964- James Keith, 1966- William G. Plummer, 1967- Lewis D. Morris, 1968- Percy Thornton, Jr., 1968-1977 Burch Millsap, 1968- James C. Cacheris, 1971- Thomas J. Middleton, 1975- Richard J. Jamborsky, 1976- _County General District Court_ Robert Fitzgerald, 1951-1955 John Corboy, 1954-1955 John A. Rothrock, Jr., 1955- J. Mason Grove, 1955- Martin E. Morris, 1965- Donald C. Crounse, 1966-1974 Robert M. Hurst, 1972- Lewis Hall Griffith, 1974- G. William Hammer, 1976- _Juvenile Court Judges_ Frank L. Deierhoi, 1965- Richard J. Jamborsky, 1968-1976 Philip N. Brophy, 1973- Arnold B. Kassabian, 1976- Raymond O. Kellam, 1976-1977 APPENDIX C PORTRAITS IN THE OLD COURTHOUSE _James Roberdeau Allison_, (1864-1927), was born in Orange County, Virginia, grew up in Centreville and taught school in Fairfax and Loudoun counties. He served the county as deputy treasurer, deputy sheriff and then was elected sheriff in 1904. Consistently re-elected, he was sheriff until his death. _Paul E. Brown_, (1904-1968), was born in Oklahoma, and moved to Fairfax County with his family in 1919. He served as commonwealth attorney for three terms and was appointed judge of the Fairfax County Circuit Court in 1944. He served as senior court judge from 1951 until his death. _Daniel McCarty Chichester_, (1834-1897), was born in Fairfax County, served in the Confederate army and later taught school in Maryland and Tennessee. He practiced law and was for a short time superintendent of schools and a delegate to the state legislature. He was elected judge of Fairfax and Alexandria (Arlington) counties in 1886 and served until his death. _Bryan Fairfax_, (1737-1802), was born in Westmoreland County, Virginia and grew up at Belvoir, in Fairfax County. He was a justice of the Fairfax County court and was ordained as an Episcopal minister, serving as rector of Fairfax Parish 1790-1792. He held the title of eighth Lord Fairfax, Baron of Cameron, from 1800 until his death. _Thomas, sixth Lord Fairfax, Baron of Cameron_, (1693-1781) was born at Leeds Castle in Kent, England and immigrated to Fairfax County in 1747. In 1749, he was commissioned a justice of the peace in each county within the entire Northern Neck, of which he was proprietor. He was a trustee of the town of Alexandria and in 1754 became commandant of the frontier militia. He lived at Belvoir until 1761, when he moved to "Greenway Court," his estate in the Shenandoah Valley where he spent the remainder of his life. _C. Vernon Ford_, (1871-1922), was born in the town of Fairfax, and practiced law with his cousin, Joseph E. Willard. Ford was appointed commonwealth's attorney for Fairfax County in 1879 and, later elected, served in this capacity until his death. _William Edwin Graham_, (1850-1916), was born in Fairfax County. He succeeded his father as clerk of the circuit court in 1887, serving until 1904, at which time he became deputy clerk under F. W. Richardson, serving in this position until his death. _George Johnston_, (1700-1766), was a son of Dr. James Johnston, who settled in Maryland in the seventeenth century. He was a trustee of Alexandria and practiced law there and in Winchester. He represented Fairfax County in the House of Burgesses from 1758 until his death and was the author of certain resolutions presented by Patrick Henry in 1765, in opposition to the Stamp Act. _Walter Jones_, (1776-1861), was born in Northumberland County, Virginia and practiced law in Fairfax and Loudoun counties. Appointed U. S. attorney for the District of Columbia, 1804-1821, he practiced law before the U. S. Supreme Court and in Virginia and Maryland. He was one of the founders of the American Colonization Society. At the time of his death, he was Major-General of the militia of the District of Columbia. _William Henry Fitzhugh Lee_, (1837-1891), was born at "Arlington." He rose to the rank of Major-General of cavalry in the Confederate army. After the Civil War, he was elected a state senator and then a congressman. He died at "Ravensworth" in Fairfax County while serving his second term in congress. _George Mason_, (1725-1792), the fourth of that name in the Virginia colony was born on Dogue's Neck, now Mason Neck, then in Stafford County, but now in Fairfax County. He was a justice of the county for most of his adult life, and a trustee of the town of Alexandria. He built his home, "Gunston Hall" in 1758. In 1774, he was the principal author of the Fairfax Resolves, and in 1776, the principal writer of the Virginia constitution and declaration of rights. The first ten amendments of the constitution were added, in part, because of his insistence on the necessity for a federal bill of rights. _Robert Walton Moore_, (1859-1941), was born in the town of Fairfax, and practiced law in the county. He served as a state senator and as a congressman. In 1933 he was appointed an assistant secretary of state, and in 1937, he became counselor of the Department of State. Throughout his adult life he was a member of numerous boards and commissions including the boards of visitors of the University of Virginia and the College of William and Mary. _Ferdinand Dawson Richardson_, (---- -1880), entered the clerk's office in 1826 under William Moss, clerk, and served as an assistant clerk or deputy clerk until 1870, when he was appointed clerk of the court, which position he held until his death. _Frederick Wilmer Richardson_, (1853-1936), was born in Fairfax, and was the son of F. D. Richardson. He was deputy clerk under his father for nine years, succeeding him in 1880. Elected to the new position of clerk of the Circuit Court in 1881, he served in that capacity until 1887, and again from 1904 to 1935. _Henry Wirt Thomas_, (1812-1890), was born in Loudoun County, Virginia. He served as commonwealth's attorney in Fairfax and was elected to the state legislature for a number of terms between 1841 and 1875. Following the Civil War, he was appointed judge of the Ninth Circuit Court of Virginia and later appointed lieutenant governor to fill out an unexpired term. _John Webb Tyler_, (1795-1862), served Fairfax County as a judge in the circuit court of Virginia from 1850-1861. The circuit included Fairfax, Prince William, Loudoun and Fauquier counties and the quarterly courts were held at the county seats, including Fairfax Court House. _George Washington_, (1732-1799), was born in Westmoreland County, Virginia, and moved to "Mount Vernon" in Fairfax County when he was sixteen. He became a surveyor, was elected a burgess, and appointed a justice of the Fairfax County court. During the American Revolution, he was appointed commander-in-chief of the armed forces of the united colonies. He was elected the first president of the United States of America under the new constitution in 1789, and again in 1793. _Joseph Edward Willard_, (1865-1924), was born in Washington, D. C. He practiced law, and was lieutenant governor of Virginia, 1902-1906. President Woodrow Wilson appointed him minister to Spain in 1913; later he was elevated to ambassador to Spain. He owned the Willard Hotel in Washington, but lived part of his life in the town of Fairfax, at "Layton Hall." APPENDIX D CLERK'S OFFICE Excerpt from the _Alexandria Gazette and Virginia Advertiser_ July 15, 1853. NOTICE TO BUILDERS--Sealed proposals will be received by the undersigned, Commissioners, until Saturday, the 16th day of July next, at 12 o'clock M, for taking down the present Clerk's office of the Circuit Court of Fairfax County, and rebuilding it on the same ground, with the materials and of the size and description, following, to wit: The foundation wall to be 2 feet below the surface, and 15 inches thick, of good stone, laid in mortar--the walls above the ground to be laid on the stone foundation, of brick, fourteen inches thick, and laid in good mortar,--the building to be 36 feet long by 24 feet wide including the walls, two stories high, and of the height of the present building, with a passage of entry 12 feet wide, adjoining the County Court office; the passage wall also resting on a stone foundation and running from bottom to top--doors at each end of the entry, and one door to each of the rooms--each room to have four windows, twenty lights and 8 � 10 glass. The outer doors and window frames to be of cast iron, with stone sills, and the doors and window shutters to be covered with sheet iron, so as to be fire proof. The joists to be 2 � 10 inches, 16 inches apart on the lowest floor, resting upon a girder 6 � 12 inches; on the upper, without a girder, but properly braced, and the flooring of the rooms to be of the best North Carolina boards, planed, tongued and grooved, and one and a quarter inches thick. The entry floor of best flagging brick, and the stairway of stone. The roofing to be of slate, of good quality, and the rafters to be substantially framed, and suitable for slate roof. To each of the rooms there is to be a fireplace. The woodwork is to be of the best material and workmanship, and corresponding with the other work. The house is to be guttered, and the iron, wood, and guttering to have two coats of paint on it. Each door to be provided with suitable locks, the house walls plastered, and the whole completed on or before the last day of January 1854, at which time the work if approved by the Commissioners, and also by the Court, will be paid for. The proposals will state what the entire work will be done for, including the furnishing of all materials and labor, and, also, including the taking down of the old building and the use of such of the old materials as can be used for rebuilding; also for what the work will be done without regard to the old building, either in taking down or the use of old materials. Notice to the successful bidder will be given within five days after opening the bids, and bond with security required from the person to whom the contract may be awarded, but the Commissioners reserve the right to reject all. For further information, apply to either of the undersigned at Fairfax Court House. . NEWMAN BURKE ) GEO. W. HUNTER, JR. ) Comm'rs ALFRED MOSS ) APPENDIX E COURTHOUSE RESTORATION SCHEDULE OF WORK TO BE PERFORMED IN THE RECONSTRUCTION OF THE FAIRFAX COUNTY COURTHOUSE, 1967 The following list comprises the schedule of work to be performed in the reconstruction of the Fairfax County Courthouse as set forth in the drawings prepared by Walter M. Macomber, architect for the project, in December 1965: _DEMOLITION_--Remove main floor, subfloor and joists, taking care to leave two columns supporting balcony, and beams beneath floor untouched. Remove all material in such a manner as to be re-usable if suitable. Remove all woodwork within building: wainscot, railings, bench, window & door casing, etc. Remove all frame partitions. Remove cantilevered forward section of balcony back to existing beam, including stair. Remove existing segmental-top two-storey windows at sides of building. Remove sash only from existing small windows, unless jambs are rotted or otherwise found unsuitable for re-use. Carefully remove all finished flooring in balcony and porch chamber, taking care not to damage subfloor. All heating pipes shall be removed and temporarily capped off below the first floor. All electrical wiring shall be removed and recapped below the first floor level except such as shall be needed for power tools, etc. Contractor shall carefully remove all existing monuments and plaques within building, securely store them, and reset them upon completion at direction of architect. _MATERIALS_--All new joists and studs shall be of construction grade fir, free of all parasites & decay, having a moisture content no greater than 18%. All new subfloor to be 5/8" plyscord. Apply sisalcraft paper between subfloor and finished floor. All flooring shall be 25/32" � 5-1/2" tongue and groove clear southern long leaf yellow pine, with relieved back & face edges slightly eased. The use of resawn used mill framing obtained from demolition companies is recommended in order to obtain straight grain. Architect must be submitted samples of flooring for his approval before use. No pieces shorter than eight feet will be used, except where necessary at juncture of floor & wall. All stair treads shall be of 1' 8" thick clear yellow pine, bull-nosed. All interior woodwork to be of clear western white pine, S 4 S, of thickness as shown on plans. Wainscot shall be of 3/4' thick by 3-5/8", 5-1/2" & 7-1/2" clear white pine, tongue & grooved, with a 1/4" bead on one face edge. Doors, windows (sash & jamb) & balusters will be of clear western white pine. Front door jamb shall be of 1-5/8 th. clear yellow pine. Interior jambs of 1-1/8" th. Cl. yellow pine. Pew material to be of 1-1/8" clear yellow pine, S 4 S. Rails to be birch for staining. Moisture content for all to be no greater than 12%. _FOUNDATION WORK_--Point up all existing foundations, piers, footings, etc. in basement and crawl space. Replace all supporting beams rotted or otherwise unsuitable for re-use. Excavate existing crawl space to a minimum of three feet below joists, and cover with 2-1/2-3" thick broom finished concrete slab, on 4 mil polyethylene film. Move existing basement stair to location on plan, and floor-over opening thus made to top of stairs. _MASONRY_--Carefully remove several sample face bricks from existing sidewalls, clean all but weather-face, and submit to Locher Brick Co., Glasgow, Va. for duplication. Remove segmental arches above two storey window openings, and extend window openings to same height as those of porch chamber windows. Using existing downstairs window sills, brick-in two rough openings required by new windows. Set steel lintels as called for on plan, and brick between vertical window openings. Take care that the new brickwork appears continuous with existing masonry & is properly toothed & bonded. Architect shall approve colour of mortar and duplicated brick before setting in place. Repoint or rebuild existing chimneys & fireplaces. Build new hearths of duplicated brick for downstairs fireplaces. Repoint all existing brickwork, interior & exterior, as may be requisite. _WEATHERSTRIPPING_--All double-hung windows shall be weatherstripped with "Chamberlain" No. 100-A Zinc Heavy-Duty, full-sash units, with protection at head, meeting rail & sill. Front entrance door shall have spring bronze weatherstripping all around, except at sill which is to receive "Chamberlain" No. 869-A narrow brass threshhold with No. 826 bronze door hook. _INSULATION_--Entire building to be covered with 4" thick batts of rock-wool or fibre-glass, combination aluminum foil insulation, applied immediately over lath between ceiling joists. _PAINTING & DECORATING_--All woodwork, interior or exterior, shall be back primed with white lead before erection. All exterior woodwork to receive two coats of white lead in oil. Remove loose or heavy accumulations of paint from existing woodwork before painting. All interior woodwork to receive one coat of primer, one coat half primer & half enamel & finish coat of semi-gloss enamel. Plaster surfaces, when thoroughly dry, shall be washed with zinc sulphate neutralizer. First paint coat shall be wall size and primer. Second coat two parts flat wall paint & one part size. Finish with egg-shell wall paint. Plaster cornice to receive first coat of size, second coat half size & half enamel. Finish coat semi-gloss enamel. Architect shall select all colours. _FLOOR FINISHING_--Floors shall be lightly sanded to remove stains and imperfections & to reasonably level. Floors shall be stained, filled, shellaced and waxed. Colour of stain shall be selected by architect. _LATHING & PLASTERING_--All interior surfaces of exterior masonry walls shall receive 3/8" gypsum lath securely nailed to 1" � 2" wood furring strips anchored to masonry. Coat masonry before furring with "Thoroseal" from Standard Dry Wall Products Co., New Eagle, Penna. Entire ceiling to be lathed with high-rib metal lath securely nailed directly to ceiling joists. Stud partitions to receive 3/8" gypsum lath. Ceiling of porch to receive high-rib metal lath applied over existing wood ceiling. All inside corners to receive expanded metal cornerite. Outside corners to receive metal corner bead. Apply strips of metal lath 6" wide over openings in stud partitions. All plaster cornices shall be run in place and formed over heavy gauge metal lath, with moulding plaster. All surfaces to be plastered minimum 3/4" thick (including lath) in two coats; Brown & finish white. White coat to have smooth float sand finish. _GLAZING_--All windows to be glazed with 9" � 10-3/4" welded glass edge or metal edged insulating glass one-half inch thick composed of two sheets of 1/8" double strength "A" window glass with one-quarter inch air space between. All glass to be set in frames with glaziers points. Back-bed w/thin coating of elastic glazing compound and putty-in smoothly. _SCREENING_--All louvres in cupola to be back screened with fine mesh, copper screen wire. _FINISHED HARDWARE_--All hinges, locks, latches, shutter hardware, etc. shall be selected by the architect. Allow $400.00 for finished hardware. LIST OF SOURCES _BOOKS_ Black, J. 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Fleming, Walter L. _The Sequel of Appomatox._ New Haven: Yale University, 1921. Fletcher, Sir Banister. _A History of Architecture._ New York: Scribners, 1961. Freeman, Douglas S. _George Washington: A Biography: Young Washington._ New York: Scribner, 1948. Hall, Wilmer, ed. _Executive Journals of the Council of Colonial Virginia._ Richmond: Virginia State Library, 1945. Harrison, Fairfax. _Landmarks of Old Prince William._ Richmond: Old Dominion Press, 1924. Reprint Berryville, Va.: Chesapeake Book Co., 1964. Hiden, Martha. _How Justice Grew: Virginia Counties: An Abstract of Their Formation._ Williamsburg: Virginia 350th Anniversary Celebration, 1957. _A Hornbook of Virginia History._ Richmond: Virginia State Library. [1965]. Kuhlman, Charles. _The Development of the Flour-Milling Industry in the United States._ Boston: Houghton Mifflin, 1929. Martin, Joseph. _Gazetteer of Virginia and the District of Columbia._ Charlottesville, 1835. McDanel, Ralph. _The Virginia Constitutional Convention of 1891-92._ Baltimore: Johns Hopkins University Press, 1928. McIlwaine, H. R., ed. _Journals of the House of Burgesses, 1742-49._ Richmond, 1909. _Minutes of the Vestry, Truro Parish, Virginia, 1732-1785._ Lorton, Va.: Pohick Church, 1974. Moore, Gay M. _Seaport on the Potomac._ Richmond: Garrett & Massie, 1949. Morison, Samuel E. and Commager, Henry S. _The Growth of the American Republic._ New York: Oxford, 1937. O'Neal, William. _Architecture in Virginia._ New York: Walker, 1968. Payne, Lloyd. _The Miller in Eighteenth Century Virginia._ Williamsburg: Colonial Williamsburg, 1963. Porter, Albert O. _County Government in Virginia._ New York: Columbia University Press, 1947. Powell, Mary G. _The History of Old Alexandria, Virginia from July 13, 1749 to May 24, 1861._ Richmond: William Byrd Press, 1928. _Programme of the Virginia Good Roads Convention._ Roanoke: Stone Printing Co. [1894]. Prussing, Eugene E. _The Estate of George Washington, Deceased._ Boston: Little, Brown, and Co., 1927. Rives, William C. _History of the Life and Times of James Madison._ Boston: Little, Brown, 1873. Roman, Alfred. _Military Operations of Gen. Beauregard._ New York: Harper & Bros., 1884. Rust, Jeanne. _History of the Town of Fairfax._ Washington: Moore & Moore, 1960. Steadman, Melvin. _Falls Church by Fence and Fireside._ Falls Church, Va.: Falls Church Public Library, 1964. Sydnor, Charles. _American Revolutionaries in the Making._ New York: Collier, 1962. Wayland, John. _History of Rockingham County, Virginia._ Dayton, Va.: Ruebush-Elkins, 1912. _ARTICLES_ Anderson, Robert. "The Administration of Justice in the Counties of Fairfax, and Alexandria and the City of Alexandria." _Arlington Historical Magazine_, II (1961): 1. Andrews, Marshall. "A History of Railroads in Fairfax County." _Yearbook of the Historical Society of Fairfax County_," III (1954): 30-31. Burke, Elizabeth. "Our Heritage: A History of Fairfax County." _Yearbook of the Historical Society of Fairfax County._ 1956-7. Chapman, Thomas, Jr. "The Secession Election in Fairfax County, May 23, 1861." _Yearbook of the Historical Society of Fairfax County_, IV (1955): 50. Hyman, Sidney. "Empire of Liberty." _With Heritage So Rich._ New York: Random House, 1966. "Letters of George Mason to Zachariah Johnston." _Tyler's Quarterly Review_, V. (January 1924.) "Martha Washington's Will and the Story of its Loss and Recovery by Fairfax County." _Yearbook of the Historical Society of Fairfax County, Virginia_, II (1952-53): 40-62. Moore, William C. "Jeremiah Moore: 1746-1815." _William and Mary Quarterly_, 2d ser. XIII, 18, 21. Smith, Governor William. "The Skirmish at Fairfax Court House." _The Fairfax County Centennial Commission._ Vienna, Virginia: 1961. _University of Virginia Newsletter._ Charlottesville: Institute of Government, University of Virginia. XLIII (July 15, 1967): 1. Whiffen, Marcus. "The Early Courthouses of Virginia." _Journal of the Society of Architectural Historians._ XVIII (March 1959): 1. _PUBLIC RECORDS_ Fairfax County Board of Supervisors _Annual Report_, 1969. Fairfax County Board of Supervisors Minute Books Fairfax County Court Minute Books Fairfax County Deed Books Fairfax County Record of Surveys, 1742-1850. Northern Neck Grant Books Virginia Laws _INTERVIEWS AND UNPUBLISHED WORKS_ Architectural drawings, 1951-1956, Facilities Management Office, County of Fairfax. Artemel, Janice, "James Wren, Gentleman Joiner," (unpublished manuscript) Falls Church, Va., 1976. Chapman, Thomas. Fairfax County, Virginia. Interview, 13 February 1970. Feiss, Carl. "Court Houses of Virginia," lecture. Latrobe (Washington) Chapter, Society of Architectural Historians, 8 November 1968. Macomber, Walter. Fairfax, Virginia. Interview, 2 March 1970. Moger, Allen W. "The Rebuilding of the Old Dominion," (unpublished doctoral dissertation) Columbia University, 1940. Sprouse, Edith M., ed. Fairfax County Abstracts: Court Order Books 1749-1792. _NEWSPAPERS_ _Alexandria Gazette_ _Columbia Mirror & Alexandria Advertiser_ _Fairfax County Free Press_ _Fairfax Herald_ _Fairfax News_ _Northern Virginia Sun_ _Virginia Gazette_ _Washington Post_ BOARD OF SUPERVISORS John F. Herrity, Chairman Martha V. Pennino, Vice-Chairman Joseph Alexander Warren I. Cikins Alan H. Magazine Audrey Moore James M. Scott John P. Shacochis Marie B. Travesky HISTORY COMMISSION Edith M. Sprouse, Chairman Donie Rieger, Vice-Chairman Bernard N. Boston C. J. S. Durham William Elkjer Denzil O. Evans Mary M. Fahringer Ceres Gaskins John P. Liberty Virginia B. Peters Mayo S. Stuntz Charles Cecil Wall ARCHITECTURAL REVIEW BOARD John J. Gattuso, Chairman Glenn Ovrevik, Vice-Chairman Thomas Cagley Donald C. Cannon Donald R. Chandler Donovan E. Hower Louis Papa S. Richard Rio James D. Webber Mary M. Fahringer, ex officio OFFICE OF COMPREHENSIVE PLANNING Theodore J. Wessel, Director Peter T. Johnson, Branch Chief Nan Netherton, Historian Elizabeth David, Historic Preservation Planner Donald Sweig, Research Historian Jay Linard, Copy Editor Annette Thomas, Copy Preparation Gloria Matthews, Designer Robin Pedlar, Assistant [Illustration: Back cover photo, court papers by Bernie Boston, 1976.] +--------------------------------------------------------------------+ | TRANSCRIBER'S NOTE. | | | | Copyright material in the original (the image on p. 76) has been | | omitted from this ebook. | | | | No anchors for footnotes 54 and 163 are present in the text. | | | | Discrepancies have been preserved between titles in the List Of | | Illustrations and the illustrations themselves. | | | +--------------------------------------------------------------------+ 
18281	----	public domain works from the University of Michigan Digital Libraries.) AN ACCOUNT OF THE PROCEEDINGS ON THE TRIAL OF SUSAN B. ANTHONY, ON THE Charge of Illegal Voting, AT THE PRESIDENTIAL ELECTION IN NOV., 1872, AND ON THE TRIAL OF BEVERLY W. JONES, EDWIN T. MARSH AND WILLIAM B. HALL, THE INSPECTORS OF ELECTION BY WHOM HER VOTE WAS RECEIVED. ROCHESTER, N.Y.: DAILY DEMOCRAT AND CHRONICLE BOOK PRINT, 3 WEST MAIN ST. 1874. INDEX. PAGE. Anthony, S.B., Indictment, 1 Her speech on receiving her sentence, 82 Her campaign speech, 151 Crowley, Richard, Opening speech in Miss Anthony's case, 5 Gage, Mrs. M. Joslyn, Speech of 179 Hall, Wm. B., Indictment, 85 Hooker, John, Article on Judge Hunt and the Right of Trial by Jury, 206 Hunt, Judge, Opinion against Miss Anthony, 59 His refusal to submit her case to the jury, 68 His refusal to permit the jury to be polled, 68 His sentence of Miss Anthony, 81 His direction to the jury in the cases of Jones, Hall and Marsh, 144 Trial by jury "_a matter of form_", 145 Jones, Beverly W., Indictment, 85 Remarks on receiving sentence, 148 Marsh, Edwin T., Indictment, 85 Remarks on being sentenced, 149 Selden, H.R., Opening speech in Miss Anthony's case, 12 Argument in her case, 17 Argument on motion for new trial, 68 Van Voorhis, John, Argument of motion to quash the indictment in the case of Jones, Marsh and Hall, 94 Argument in the case of Jones, Marsh and Hall on the merits, 128 Motion for new trial in the case of Jones, Marsh and Hall, 147 PREFACE. At the election of President and Vice President of the United States, and members of Congress, in November, 1872, SUSAN B. ANTHONY, and several other women, offered their votes to the inspectors of election, claiming the right to vote, as among the privileges and immunities secured to them as citizens by the fourteenth amendment to the Constitution of the United States. The inspectors, JONES, HALL, and MARSH, by a majority, decided in favor of receiving the offered votes, against the dissent of HALL, and they were received and deposited in the ballot box. For this act, the women, fourteen in number, were arrested and held to bail, and indictments were found against them severally, under the 19th Section of the Act of Congress of May 30th, 1870, (16 St. at L. 144.) charging them with the offense of "knowingly voting without having a lawful right to vote." The three inspectors were also arrested, but only two of them were held to bail, HALL having been discharged by the Commissioner on whose warrant they were arrested. All three, however were jointly indicted under the same statute--for having "knowingly and wilfully received the votes of persons not entitled to vote." Of the women voters, the case of Miss ANTHONY alone was brought to trial, a _nolle prosequi_ having been entered upon the other indictments. Upon the trial of Miss ANTHONY before the U.S. Circuit Court for the Northern District of New York, at Canandaigua, in June, 1873, it was proved that before offering her vote she was advised by her counsel that she had a right to vote; and that she entertained no doubt, at the time of voting, that she was entitled to vote. It was claimed in her behalf: I. That she was legally entitled to vote. II. That if she was not so entitled, but voted in good faith in the belief that it was her right, she was guilty of no crime. III. That she did vote in such good faith, and with such belief. The court held that the defendant had no right to vote--that good faith constituted no defence--that there was nothing in the case for the jury to decide, and directed them to find a verdict of guilty; refusing to submit, at the request of the defendant's counsel, any question to the jury, or to allow the clerk to ask the jurors, severally, whether they assented to the verdict which the court had directed to be entered. The verdict of guilty was entered by the clerk, as directed by the court, without any express assent or dissent on the part of the jury. A fine of $100, and costs, was imposed upon the defendant. Miss ANTHONY insists that in these proceedings, the fundamental principle of criminal law, that no person can be a criminal unless the mind be so--that an honest mistake is not a crime, has been disregarded; that she has been denied her constitutional right of trial by jury, the jury having had no voice in her conviction; that she has been denied her right to have the response of every juror to the question, whether he did or did not assent to the verdict which the court directed the clerk to enter. The trial of the three inspectors followed that of Miss ANTHONY, and all were convicted, the court holding, as in the case of Miss ANTHONY, that good faith on their part in receiving the votes was not a protection; which they think a somewhat severe rule of law, inasmuch as the statute provides the same penalty, and in the same sentence, "for knowingly and wilfully receiving the vote of any person not entitled to vote, or refusing to receive the vote of any person entitled to vote." The inspectors claim, that according to this exposition of the law, they were placed in a position which required them, without any opportunity to investigate or take advice in regard to the right of any voter whose right was questioned, to decide the question correctly, at the peril of a term in the state's prison if they made a mistake; and, though this may be a correct exposition of the law in their case, they would be sorry to see it applied to the decisions of any court, not excepting the tribunal by which they were convicted. The defendant, HALL, is at a loss to know how he could have avoided the penalty, inasmuch as he did all that he could in the way of rejecting the votes, without throttling his co-inspectors, and forcing them to desist from the wrong of receiving them. He is of opinion that by the ruling of the Court, he would have been equally guilty, if he had tried his strength in that direction, and had failed of success. To preserve a full record of so important a judicial determination, and to enable the friends of the convicted parties to understand precisely the degree of criminality which attaches to them in consequence of these convictions, the following pamphlet has been prepared--giving a more full and accurate statement of the proceedings than can elsewhere be found. INDICTMENT AGAINST SUSAN B. ANTHONY. DISTRICT COURT OF THE UNITED STATES OF AMERICA, IN AND FOR THE NORTHERN DISTRICT OF NEW YORK. * * * At a stated session of the District Court of the United States of America, held in and for the Northern District of New York, at the City Hall, in the city of Albany, in the said Northern District of New York, on the third Tuesday of January, in the year of our Lord one thousand eight hundred and seventy-three, before the Honorable Nathan K. Hall, Judge of the said Court, assigned to keep the peace of the said United States of America, in and for the said District, and also to hear and determine divers Felonies, Misdemeanors and other offenses against the said United States of America, in the said District committed. Brace Millerd, James D. Wasson, Peter H. Bradt, James McGinty, Henry A. Davis, Loring W. Osborn, Thomas Whitbeck, John Mullen, Samuel G. Harris, Ralph Davis, Matthew Fanning, Abram Kimmey, Derrick B. Van Schoonhoven, Wilhelmus Van Natten, Adam Winne, James Goold, Samuel S. Fowler, Peter D.R. Johnson, Patrick Carroll, good and lawful men of the said District, then and there sworn and charged to inquire for the said United States of America, and for the body of said District, do, upon their oaths, present, that Susan B. Anthony now or late of Rochester, in the county of Monroe, with force and arms, etc., to-wit: at and in the first election district of the eighth ward of the city of Rochester, in the county of Monroe, in said Northern District of New York, and within the jurisdiction of this Court, heretofore, to-wit: on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, at an election duly held at and in the first election district of the said eighth ward of the city of Rochester, in said county, and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to-wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward of said city of Rochester, being then and there a part of said twenty-ninth Congressional District of the State of New York, did knowingly, wrongfully and unlawfully vote for a Representative in the Congress of the United States for the State of New York at large, and for a Representative in the Congress of the United States for said twenty-ninth Congressional District, without having a lawful right to vote in said election district (the said Susan B. Anthony being then and there a person of the female sex,) as she, the said Susan B. Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity. Second Count--And the jurors aforesaid upon their oaths aforesaid do further present that said Susan B. Anthony, now or late of Rochester, in the county of Monroe, with force and arms, etc., to-wit: at and in the first election district of the eighth ward of the city of Rochester, in the county of Monroe, in said Northern District of New York, and within the jurisdiction of this Court, heretofore, to-wit: on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, at an election duly held at and in the first election district of the said eighth ward, of said city of Rochester, in said county, and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to-wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward, of said city of Rochester, being then and there a part of said twenty-ninth Congressional District of the State of New York, did knowingly, wrongfully and unlawfully vote for a candidate for Representative in the Congress of the United States for the State of New York at large, and for a candidate for Representative in the Congress of the United States for said twenty-ninth Congressional District, without having a lawful right to vote in said first election district (the said Susan B. Anthony being then and there a person of the female sex,) as she, the said Susan B. Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity. RICHARD CROWLEY, Attorney of the United States, For the Northern District Of New York. (Endorsed.) Jan. 24, 1873. Pleads not guilty. RICHARD CROWLEY, U.S. Attorney. UNITED STATES CIRCUIT COURT. Northern District of New York. THE UNITED STATES OF AMERICA _vs._ SUSAN B. ANTHONY. * * * HON. WARD HUNT, Presiding. * * * APPEARANCES. For the United States: HON. RICHARD CROWLEY. U.S. District Attorney. For the Defendant: HON. HENRY R. SELDEN. JOHN VAN VOORHIS, ESQ. Tried at Canandaigua. Tuesday and Wednesday, June 17th and 18th, 1873, before Hon. Ward Hunt, and a jury. Jury impanneled at 2:30 P.M. MR. CROWLEY opened the case as follows: _May it please the Court and Gentlemen of the Jury_: On the 5th of November, 1872, there was held in this State, as well as in other States of the Union, a general election for different officers, and among those, for candidates to represent several districts of this State in the Congress of the United States. The defendant, Miss Susan B. Anthony, at that time resided in the city of Rochester, in the county of Monroe, Northern District of New York, and upon the 5th day of November, 1872, she voted for a representative in the Congress of the United States, to represent the 29th Congressional District of this State, and also for a representative at large for the State of New York, to represent the State in the Congress of the United States. At that time she was a woman. I suppose there will be no question about that. The question in this case, if there be a question of fact about it at all, will, in my judgment, be rather a question of law than one of fact. I suppose that there will be no question of fact, substantially, in the case when all of the evidence is out, and it will be for you to decide under the charge of his honor, the Judge, whether or not the defendant committed the offence of voting for a representative in Congress upon that occasion. We think, on the part of the Government, that there is no question about it either one way or the other, neither a question of fact, nor a question of law, and that whatever Miss Anthony's intentions may have been--whether they were good or otherwise--she did not have a right to vote upon that question, and if she did vote without having a lawful right to vote, then there is no question but what she is guilty of violating a law of the United States in that behalf enacted by the Congress of the United States. We don't claim in this case, gentlemen, that Miss Anthony is of that class of people who go about "repeating." We don't claim that she went from place to place for the purpose of offering her vote. But we do claim that upon the 5th of November, 1872, she voted, and whether she believed that she had a right to vote or not, it being a question of law, that she is within the Statute. Congress in 1870 passed the following statute: (Reads 19th Section of the Act of 1870, page 144, 16th statutes at large.) It is not necessary for me, gentlemen, at this stage of the case, to state all the facts which will be proven on the part of the Government. I shall leave that to be shown by the evidence and by the witnesses, and if any question of law shall arise his Honor will undoubtedly give you instructions as he shall deem proper. _Conceded_, that on the 5th day of November, 1872, Miss Susan B. Anthony was a woman. BEVERLY W. JONES, a witness, called in behalf of the United States, having been duly sworn, testified as follows: _Examined_ by Mr. Crowley: Q. Mr. Jones, where do you reside? A. 8th ward, Rochester. Q. Where were you living on the 5th of November, 1872? A. Same place. Q. Do you know the defendant, Miss Susan B. Anthony? A. Yes, sir. Q. In what capacity were you acting upon that day, if any, in relation to elections? A. Inspector of election. Q. Into how many election districts is the 8th ward divided, if it contains more than one? A. Two, sir. Q. In what election district were you inspector of elections? A. The first district. Q. Who were inspectors with you? A. Edwin T. Marsh and William B. Hall. Q. Had the Board of Inspectors been regularly organized? A. Yes, sir. Q. Upon the 5th day of November, did the defendant, Susan B. Anthony, vote in the first election district of the 8th ward of the city of Rochester? A. Yes, sir. Q. Did you see her vote? A. Yes, sir. Q. Will you state to the jury what tickets she voted, whether State, Assembly, Congress and Electoral? Objected to as calling for a conclusion. Q. State what tickets she voted, if you know, Mr. Jones? A. If I recollect right she voted the Electoral ticket, Congressional ticket, State ticket, and Assembly ticket. Q. Was there an election for Member of Congress for that district and for Representative at Large in Congress, for the State of New York, held on the 5th of November, in the city of Rochester? A. I think there was; yes, sir. Q. In what Congressional District was the city of Rochester at the time? A. The 29th. Q. Did you receive the tickets from Miss Anthony? A. Yes, sir. Q. What did you do with them when you received them? A. Put them in the separate boxes where they belonged. Q. State to the jury whether you had separate boxes for the several tickets voted in that election district? A. Yes, sir; we had. Q. Was Miss Anthony challenged upon that occasion? A. Yes, sir--no; not on that day she wasn't. Q. She was not challenged on the day she voted? A. No, sir. _Cross-Examination_ by Judge Selden: Q. Prior to the election, was there a registry of voters in that district made? A. Yes, sir. Q. Was you one of the officers engaged in making that registry? A. Yes, sir. Q. When the registry was being made did Miss Anthony appear before the Board of Registry and claim to be registered as a voter? A. She did. Q. Was there any objection made, or any doubt raised as to her right to vote? A. There was. Q. On what ground? A. On the ground that the Constitution of the State of New York did not allow women to vote. Q. What was the defect in her right to vote as a citizen? A. She was not a male citizen. Q. That she was a woman? A. Yes, sir. Q. Did the Board consider that and decide that she was entitled to register? Objected to. Objection overruled. Q. Did the Board consider the question of her right to registry, and decide that she was entitled to registry as a voter? A. Yes, sir. Q. And she was registered accordingly? A. Yes, sir. Q. When she offered her vote, was the same objection brought up in the Board of Inspectors, or question made of her right to vote as a woman? A. She was challenged previous to election day. Q. It was canvassed previous to election day between them? A. Yes, sir; she was challenged on the second day of registering names. Q. At the time of the registry, when her name was registered, was the Supervisor of Election present at the Board? A. He was. Q. Was he consulted upon the question of whether she was entitled to registry, or did he express an opinion on the subject to the inspectors? MR. CROWLEY: I submit that it is of no consequence whether he did or not. JUDGE SELDEN: He was the Government Supervisor under this act of Congress. MR. CROWLEY: The Board of Inspectors, under the State law, constitute the Board of Registry, and they are the only persons to pass upon that question. THE COURT: You may take it. A. Yes, sir; there was a United States Supervisor of Elections, two of them. By JUDGE SELDEN: Q. Did they advise the registry, or did they not? A. One of them did. Q. And on that advice the registry was made with the judgment of the inspectors. A. It had a great deal of weight with the inspectors, I have no doubt. _Re-direct Examination by_ MR. CROWLEY: Q. Was Miss Anthony challenged before the Board of Registry? A. Not at the time she offered her name. Q. Was she challenged at any time? A. Yes, sir; the second day of the meeting of the Board. Q. Was the preliminary and the general oath administered? A. Yes, sir. Q. Won't you state what Miss Anthony said, if she said anything, when she came there and offered her name for registration? A. She stated that she did not claim any rights under the constitution of the State of New York; she claimed her right under the constitution of the United States. Q. Did she name any particular amendment? A. Yes, sir; she cited the 14th amendment. Q. Under that she claimed her right to vote? A. Yes, sir. Q. Did the other Federal Supervisor who was present, state it as his opinion that she was entitled to vote under that amendment, or did he protest, claiming that she did not have the right to vote? A. One of them said that there was no way for the inspectors to get around placing the name upon the register; the other one, when she came in, left the room. Q. Did this one who said that there was no way to get around placing the name upon the register, state that she had her right to register but did not have the right to vote? A. I didn't hear him make any such statement. Q. You didn't hear any such statement as that? A. No, sir. Q. Was there a poll list kept of the voters of the first election district of the 8th ward on the day of election? A. Yes, sir. Q. (Handing witness two books.) State whether that is the poll list of voters kept upon the day of election in the first election district of the 8th ward, of the city of Rochester? A. This is the poll list, and also the register. Q. Turn to the name of Susan B. Anthony, if it is upon that poll list? A. I have it. Q. What number is it? A. Number 22. Q. From that poll list what tickets does it purport to show that she voted upon that occasion? A. Electoral, State, Congress and Assembly. _United States rests._ JUDGE SELDEN opened the case in behalf of the defendant, as follows: _If the Court please, Gentlemen of the Jury_: This is a case of no ordinary magnitude, although many might regard it as one of very little importance. The question whether my client here has done anything to justify her being consigned to a felon's prison or not, is one that interests her very essentially, and that interests the people also essentially. I claim and shall endeavor to establish before you that when she offered to have her name registered as a voter, and when she offered her vote for Member of Congress, she was as much entitled to vote as any man that voted at that election, according to the Constitution and laws of the Government under which she lives. If I maintain that proposition, as a matter of course she has committed no offence, and is entitled to be discharged at your hands. But, beyond that, whether she was a legal voter or not, whether she was entitled to vote or not, if she sincerely believed that she had a right to vote, and offered her ballot in good faith, under that belief, whether right or wrong, by the laws of this country she is guilty of no crime. I apprehend that that proposition, when it is discussed, will be maintained with a clearness and force that shall leave no doubt upon the mind of the Court or upon your minds as the gentlemen of the jury. If I maintain that proposition here, then the further question and the only question which, in my judgment, can come before you to be passed upon by you as a question of fact is whether or not she did vote in good faith, believing that she had a right to vote. The public prosecutor assumes that, however honestly she may have offered her vote, however sincerely she may have believed that she had a right to vote, if she was mistaken in that judgment, her offering her vote and its being received makes a criminal offence--a proposition to me most abhorrent, as I believe it will be equally abhorrent to your judgment. Before the registration, and before this election, Miss Anthony called upon me for advice upon the question whether, under the 14th Amendment of the Constitution of the United States, she had a right to vote. I had not examined the question. I told her I would examine it and give her my opinion upon the question of her legal right. She went away and came again after I had made the examination. I advised her that she was as lawful a voter as I am, or as any other man is, and advised her to go and offer her vote. I may have been mistaken in that, and if I was mistaken, I believe she acted in good faith. I believe she acted according to her right as the law and Constitution gave it to her. But whether she did or not, she acted in the most perfect good faith, and if she made a mistake, or if I made one, that is not a reason for committing her to a felon's cell. For the second time in my life, in my professional practice, I am under the necessity of offering myself as a witness for my client. HENRY R. SELDEN, a witness sworn in behalf of the defendant, testified as follows: Before the last election, Miss Anthony called upon me for advice, upon the question whether she was or was not a legal voter. I examined the question, and gave her my opinion, unhesitatingly, that the laws and Constitution of the United States, authorized her to vote, as well as they authorize any man to vote; and I advised her to have her name placed upon the registry and to vote at the election, if the inspectors should receive her vote. I gave the advice in good faith, believing it to be accurate, and I believe it to be accurate still. [This witness was not cross-examined.] JUDGE SELDEN: I propose to call Miss Anthony as to the fact of her voting--on the question of the intention or belief under which she voted. MR. CROWLEY: She is not competent as a witness in her own behalf. [The Court so held.] _Defendant rests._ JOHN E. POUND, a witness sworn in behalf of the United States, testified as follows: _Examined by_ MR. CROWLEY. Q. During the months of November and December, 1872, and January, 1873, were you Assistant United States Dist. Attorney for the Northern District of New York? A. Yes, sir. Q. Do you know the defendant, Susan B. Anthony? A. Yes, sir. Q. Did you attend an examination before Wm. C. Storrs, a United States Commissioner, in the city of Rochester, when her case was examined? A. I did Q. Was she called as a witness in her own behalf upon that examination? A. She was. Q. Was she sworn? A. She was. Q. Did she give evidence? A. She did. Q. Did you keep minutes of evidence on that occasion? A. I did. Q. (Handing the witness a paper.) Please look at the paper now shown you and see if it contains the minutes you kept upon that occasion? A. It does. Q. Turn to the evidence of Susan B. Anthony! A. I have it. Q. Did she, upon that occasion, state that she consulted or talked with Judge Henry R. Selden, of Rochester, in relation to her right to vote? JUDGE SELDEN: I object to that upon the ground that it is incompetent, that if they refuse to allow her to be sworn here, they should be excluded from producing any evidence that she gave elsewhere, especially when they want to give the version which the United States officer took of her evidence. THE COURT: Go on. By MR. CROWLEY: Q. State whether she stated on that examination, under oath, that she had talked or consulted with Judge Henry R. Selden in relation to her right to vote? A. She did. Q. State whether she was asked, upon that examination, if the advice given her by Judge Henry R. Selden would or did make any difference in her action in voting, or in substance that? A. She stated on the cross-examination, "I should have made the same endeavor to vote that I did had I not consulted Judge Selden. I didn't consult any one before I registered. I was not influenced by his advice in the matter at all; have been resolved to vote, the first time I was at home 30 days, for a number of years." _Cross-examination by_ MR. VAN VOORHEES: Q. Mr. Pound, was she asked there if she had any doubt about her right to vote, and did she answer "Not a particle?" A. She stated "Had no doubt as to my right to vote," on the direct examination. Q. There was a stenographic reporter there, was there not? A. A reporter was there taking notes. Q. Was not this question put to her "Did you have any doubt yourself of your right to vote?" and did she not answer "Not a particle?" THE COURT: Well, he says so, that she had no doubt of her right to vote. JUDGE SELDEN: I beg leave to state, in regard to my own testimony, Miss Anthony informs me that I was mistaken in the fact that my advice was before her registry. It was my recollection that it was on her way to the registry, but she states to me now that she was registered and came immediately to my office. In that respect I was under a mistake. _Evidence closed._ ARGUMENT OF MR. SELDEN FOR THE DEFENDANT. The defendant is indicted under the 19th section of the Act of Congress of May 31, 1870 (16 St. at L., 144,), for "voting without having a lawful right to vote." The words of the Statute, so far as they are material in this case, are as follows: "If at any election for representative or delegate in the Congress of the United States, any person shall knowingly ... vote without having a lawful right to vote ... every such person shall be deemed guilty of a crime, ... and on conviction thereof shall be punished by a fine not exceeding $500, or by imprisonment for a term not exceeding three years, or by both, in the discretion of the court, and shall pay the costs of prosecution." The only alleged ground of illegality of the defendant's vote is that she is a woman. If the same act had been done by her brother under the same circumstances, the act would have been not only innocent, but honorable and laudable; but having been done by a woman it is said to be a crime. The crime therefore consists not in the act done, but in the simple fact that the person doing it was a woman and not a man. I believe this is the first instance in which a woman has been arraigned in a criminal court, merely on account of her sex. If the advocates of female suffrage had been allowed to choose the point of attack to be made upon their position, they could not have chosen it more favorably for themselves; and I am disposed to thank those who have been instrumental in this proceeding, for presenting it in the form of a criminal prosecution. Women have the same interest that men have in the establishment and maintenance of good government; they are to the same extent as men bound to obey the laws; they suffer to the same extent by bad laws, and profit to the same extent by good laws; and upon principles of equal justice, as it would seem, should be allowed equally with men, to express their preference in the choice of law-makers and rulers. But however that may be, no greater _absurdity_, to use no harsher term, could be presented, than that of rewarding men and punishing women, for the same act, _without giving to women any voice in the question which should be rewarded, and which punished_. I am aware, however, that we are here to be governed by the Constitution and laws as they are, and that if the defendant has been guilty of violating the law, she must submit to the penalty, however unjust or absurd the law may be. But courts are not required to so interpret laws or constitutions as to produce either absurdity or injustice, so long as they are open to a more reasonable interpretation. This must be my excuse for what I design to say in regard to the propriety of female suffrage, because with that propriety established there is very little difficulty in finding sufficient warrant in the constitution for its exercise. This case, in its legal aspects, presents three questions, which I purpose to discuss. 1. Was the defendant legally entitled to vote at the election in question? 2. If she was not entitled to vote, but believed that she was, and voted in good faith in that belief, did such voting constitute a crime under the statute before referred to? 3. Did the defendant vote in good faith in that belief? If the first question be decided in accordance with my views, the other questions become immaterial; if the second be decided adversely to my views, the first and third become immaterial. The two first are questions of law to be decided by the court, the other is a question for the jury. [The Judge here suggested that the argument should be confined to the legal questions, and the argument on the other question suspended, until his opinion on those questions should be made known. This suggestion was assented to, and the counsel proceeded.] My first position is that the defendant had the same right to vote as any other citizen who voted at that election. Before proceeding to the discussion of the purely legal question, I desire, as already intimated, to pay some attention to the propriety and justice of the rule which I claim to have been established by the Constitution. Miss Anthony, and those united with her in demanding the right of suffrage, claim, and with a strong appearance of justice, that upon the principles upon which our government is founded, and which lie at the basis of all just government, every citizen has a right to take part, upon equal terms with every other citizen, in the formation and administration of government. This claim on the part of the female sex presents a question the magnitude of which is not well appreciated by the writers and speakers who treat it with ridicule. Those engaged in the movement are able, sincere and earnest women, and they will not be silenced by such ridicule, nor even by the villainous caricatures of Nast. On the contrary, they justly place all those things to the account of the wrongs which they think their sex has suffered. They believe, with an intensity of feeling which men who have not associated with them have not yet learned, that their sex has not had, and has not now, its just and true position in the organization of government and society. They may be wrong in their position, but they will not be content until their arguments are fairly, truthfully and candidly answered. In the most celebrated document which has been put forth on this side of the Atlantic, our ancestors declared that "governments derive their just powers from the consent of the governed." Blackstone says, "The lawfulness of punishing such criminals (i.e., persons offending merely against the laws of society) is founded upon this principle: that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered when first they engaged in society; it was calculated for and has long contributed to their own security." Quotations, to an unlimited extent, containing similar doctrines from eminent writers, both English and American, on government, from the time of John Locke to the present day, might be made. Without adopting this doctrine which bases the rightfulness of government upon the consent of the governed, I claim that there is implied in it the narrower and unassailable principle that all citizens of a State, who are bound by its laws, are entitled to an equal voice in the making and execution of such laws. The doctrine is well stated by Godwin in his treatise on Political Justice. He says: "The first and most important principle that can be imagined relative to the form and structure of government, seems to be this: that as government is a transaction in the name and for the benefit of the whole, every member of the community ought to have some share in its administration." Again, "Government is a contrivance instituted for the security of individuals; and it seems both reasonable that each man should have a share in providing for his own security, and probable, that partiality and cabal should by this means be most effectually excluded." And again, "To give each man a voice in the public concerns comes nearest to that admirable idea of which we should never lose sight, the uncontrolled exercise of private judgment. Each man would thus be inspired with a consciousness of his own importance, and the slavish feelings that shrink up the soul in the presence of an imagined superior would be unknown." The mastery which this doctrine, whether right or wrong, has acquired over the public mind, has produced as its natural fruit, the extension of the right of suffrage to all the adult male population in nearly all the states of the Union; a result which was well epitomized by President Lincoln, in the expression, "government by the people for the people." This extension of the suffrage is regarded by many as a source of danger to the stability of free government. I believe it furnishes the greatest security for free government, as it deprives the mass of the people of all motive for revolution; and that government so based is most safe, not because the whole people are less liable to make mistakes in government than a select few, but because they have no interest which can lead them to such mistakes, or to prevent their correction when made. On the contrary, the world has never seen an aristocracy, whether composed of few or many, powerful enough to control a government, who did not honestly believe that their interest was identical with the public interest, and who did not act persistently in accordance with such belief; and, unfortunately, an aristocracy of sex has not proved an exception to the rule. The only method yet discovered of overcoming this tendency to the selfish use of power, whether consciously or unconsciously, by those possessing it, is the distribution of the power among all who are its subjects. Short of this the name free government is a misnomer. This principle, after long strife, not yet entirely ended has been, practically at least, very generally recognized on this side of the Atlantic, as far as relates to men; but when the attempt is made to extend it to women, political philosophers and practical politicians, those "inside of politics," two classes not often found acting in concert, join in denouncing it. It remains to be determined whether the reasons which have produced the extension of the franchise to all adult men, do not equally demand its extension to all adult women. If it be necessary for men that each should have a share in the administration of government for his security, and to exclude partiality, as alleged by Godwin, it would seem to be equally, if not more, necessary for women, on account of their inferior physical power: and if, as is persistently alleged by those who sneer at their claims, they are also inferior in mental power, that fact only gives additional weight to the argument in their behalf, as one of the primary objects of government, as acknowledged on all hands, is the protection of the weak against the power of the strong. I can discover no ground consistent with the principle on which the franchise has been given to all men, upon which it can be denied to women. The principal argument against such extension, so far as argument upon that side of the question has fallen under my observation, is based upon the position that women are represented in the government by men, and that their rights and interests are better protected through that indirect representation than they would be by giving them a direct voice in the government. The teachings of history in regard to the condition of women under the care of these self-constituted protectors, to which I can only briefly allude, show the value of this argument as applied to past ages; and in demonstration of its value as applied to more recent times, even at the risk of being tedious, I will give some examples from my own professional experience. I do this because nothing adds more to the efficacy of truth than the translation of the abstract into the concrete. Withholding names, I will state the facts with fullness and accuracy. An educated and refined woman, who had been many years before deserted by her drunken husband, was living in a small village of Western New York, securing, by great economy and intense labor in fine needle work, the means of living, and of supporting her two daughters at an academy, the object of her life being to give them such an education as would enable them to become teachers, and thus secure to them some degree of independence when she could no longer provide for them. The daughters were good scholars, and favorites in the school, so long as the mother was able to maintain them there. A young man, the nephew and clerk of a wealthy but miserly merchant, became acquainted with the daughters, and was specially attentive to the older one. The uncle disapproved of the conduct of his nephew, and failing to control it by honorable means, resorted to the circulation of the vilest slanders against mother and daughters. He was a man of wealth and influence. They were almost unknown. The mother had but recently come to the village, her object having been to secure to her daughters the educational advantages which the academy afforded. Poverty, as well as perhaps an excusable if not laudable pride, compelled her to live in obscurity, and consequently the assault upon their characters fell upon her and her daughters with crushing force. Her employment mainly ceased, her daughters were of necessity withdrawn from school, and all were deprived of the means, from their own exertions, of sustaining life. Had they been in fact the harlots which the miserly scoundrel represented them to be, they would not have been so utterly powerless to resist his assault. The mother in her despair naturally sought legal redress. But how was it to be obtained? By the law the wife's rights were merged in those of the husband. She had in law no individual existence, and consequently no action could be brought by her to redress the grievous wrong; indeed _according to the law she had suffered no wrong_, but the husband had suffered all, and was entitled to all the redress. Where he was the lady did not know; she had not heard from him for many years. Her counsel, however, ventured to bring an action in her behalf, joining the husband's name with hers, as the law required. When the cause came to trial the defendant made no attempt to sustain the charges which he had made, well knowing that they were as groundless as they were cruel; but he introduced and proved a release of the cause of action, signed by the husband, reciting a consideration of fifty dollars paid to him. The defendant's counsel had some difficulty in proving the execution of the release, and was compelled to introduce as a witness, the constable who had been employed to find the vagabond husband and obtain his signature. His testimony disclosed the facts that he found the husband in the forest in one of our north-eastern counties, engaged in making shingles, (presumably stealing timber from the public lands and converting it into the means of indulging his habits of drunkenness,) and only five dollars of the fifty mentioned in the release had in fact been paid. The Court held, was compelled to hold, that the party injured _in view of the law_, had received full compensation for the wrong--and the mother and daughters with no means of redress were left to starve. This was the act of the _representative_ of the wife and daughters to whom we are referred, as a better protector of their rights than they themselves could be. It may properly be added, that if the action had proceeded to judgment without interference from the husband, and such amount of damages had been recovered as a jury might have thought it proper to award, the money would have belonged to the husband, and the wife could not lawfully have touched a cent of it. Her attorney might, and doubtless would have paid it to her, but he could only have done so at the peril of being compelled to pay it again to the drunken husband if he had demanded it. In another case, two ladies, mother and daughter, some time prior to 1860 came from an eastern county of New York to Rochester, where a habeas corpus was obtained for a child of the daughter, less than two years of age. It appeared on the return of the writ, that the mother of the child had been previously abandoned by her husband, who had gone to a western state to reside, and his wife had returned with the child to her mother's house, and had resided there after her desertion. The husband had recently returned from the west, had succeeded in getting the child into his custody, and was stopping over night with it in Rochester on the way to his western home. No misconduct on the part of the wife was pretended, and none on the part of the husband, excepting that he had gone to the west leaving his wife and child behind, no cause appearing, and had returned, and somewhat clandestinely obtained possession of the child. The Judge, following Blackstone's views of husband's rights, remanded the infant to the custody of the father. He thought the law required it, and perhaps it did; but if mothers had had a voice, either in making or in administering the law, I think the result would have been different. The distress of the mother on being thus separated from her child can be better imagined than described. The separation proved a final one, as in less than a year neither father nor mother had any child on earth to love or care for. Whether the loss to the little one of a mother's love and watchfulness had any effect upon the result, cannot, of course, be known. The state of the law a short time since, in other respects, in regard to the rights of married women, shows what kind of security had been provided for them by their assumed representatives. Prior to 1848, all the personal property of every woman on marriage became the absolute property of the husband--the use of all her real estate became his during coverture, and on the birth of a living child, it became his during his life. He could squander it in dissipation or bestow it upon harlots, and the wife could not touch or interfere with it. Prior to 1860, the husband could by will take the custody of his infant children away from the surviving mother, and give it to whom he pleased--and he could in like manner dispose of the control of the children's property, after his death, during their minority, without the mother's consent. In most of these respects the state of the law has undergone great changes within the last 25 years. The property, real and personal, which a woman possesses before marriage, and such as may be given to her during coverture, remains her own, and is free from the control of her husband. If a married woman is slandered she can prosecute in her own name the slanderer, and recover to her own use damages for the injury. The mother now has an equal claim with the father to the custody of their minor children, and in case of controversy on the subject, courts may award the custody to either in their discretion. The husband cannot now by will effectually appoint a guardian for his infant children without the consent of the mother, if living. These are certainly great ameliorations of the law; but how have they been produced? Mainly as the result of the exertions of a few heroic women, one of the foremost of whom is her who stands arraigned as a criminal before this Court to-day. For a thousand years the absurdities and cruelties to which I have alluded have been embedded in the common law, and in the statute books, and men have not touched them, and would not until the end of time, had they not been goaded to it by the persistent efforts of the noble women to whom I have alluded. Much has been done, but much more remains to be done by women. If they had possessed the elective franchise, the reforms which have cost them a quarter of a century of labor would have been accomplished in a year. They are still subject to taxation upon their property, without any voice as to the levying or destination of the tax; and are still subject to laws _made by men_, which subject them to fine and imprisonment for the same acts which men do with honor and reward--and when brought to trial no woman is allowed a place on the bench or in the jury box, or a voice in her behalf at the bar. They are bound to suffer the penalty of such laws, made and administered solely by men, and to be silent under the infliction. Give them the ballot, and, although I do not suppose that any great revolution will be produced, or that all political evils will be removed, (I am not a believer in political panaceas,) but if I mistake not, valuable reforms will be introduced which are not now thought of. Schools, almshouses, hospitals, drinking saloons, and those worse dens which are destroying the morals and the constitutions of so many of the young of both sexes, will feel their influence to an extent now little dreamed of. At all events women will not be taxed without an opportunity to be heard, and will not be subject to fine and imprisonment by laws made exclusively by men for doing what it is lawful and honorable for men to do. It may be said in answer to the argument in favor of female suffrage derived from the cases to which I have referred, that men, not individually, but collectively, are the natural and appropriate representatives of women, and that, notwithstanding cases of individual wrong, the rights of women are, on the whole, best protected by being left to their care. It must be observed, however, that the cases which I have stated, and which are only types of thousands like them, in their cruelty and injustice, are the result of ages of legislation by these assumed protectors of women. The wrongs were less in the men than in the laws which sustained them, and which contained nothing for the protection of the women. But passing this view, let us look at the matter historically and on a broader field. If Chinese women were allowed an equal share with men in shaping the laws of that great empire, would they subject their female children to torture with bandaged feet, through the whole period of childhood and growth, in order that they might be cripples for the residue of their lives? If Hindoo women could have shaped the laws of India, would widows for ages have been burned on the funeral pyres of their deceased husbands? If Jewish women had had a voice in framing Jewish laws, would the husband, at his own pleasure, have been allowed to "write his wife a bill of divorcement and give it in her hand, and send her out of his house?" Would women in Turkey or Persia have made it a heinous, if not capital, offence for a wife to be seen abroad with her face not covered by an impenetrable veil? Would women in England, however learned, have been for ages subjected to execution for offences for which men, who could read, were only subjected to burning in the hand and a few months imprisonment? The principle which governs in these cases, or which has done so hitherto, has been at all times and everywhere the same. Those who succeed in obtaining power, no matter by what means, will, with rare exceptions, use it for their exclusive benefit. Often, perhaps generally, this is done in the honest belief that such use is for the best good of all who are affected by it. A wrong, however, to those upon whom it is inflicted, is none the less a wrong by reason of the good motives of the party by whom it is inflicted. The condition of subjection in which women have been held is the result of this principle; the result of superior strength, not of superior rights, on the part of men. Superior strength, combined with ignorance and selfishness, but not with malice. It is a relic of the barbarism in the shadow of which nations have grown up. Precisely as nations have receded from barbarism the severity of that subjection has been relaxed. So long as merely physical power governed in the affairs of the world, the wrongs done to women were without the possibility of redress or relief; but since nations have come to be governed by laws, there is room to hope, though the process may still be a slow one, that injustice in all its forms, or at least political injustice, may be extinguished. No injustice can be greater than to deny to any class of citizens not guilty of crime, all share in the political power of a state, that is, all share in the choice of rulers, and in the making and administration of the laws. Persons to which such share is denied, are essentially slaves, because they hold their rights, if they can be said to have any, subject to the will of those who hold the political power. For this reason it has been found necessary to give the ballot to the emancipated slaves. Until this was done their emancipation was far from complete. Without a share in the political powers of the state, no class of citizens has any security for its rights, and the history of nations to which I briefly alluded, shows that women constitute no exception to the universality of this rule. Great errors, I think, exist in the minds of both the advocates and the opponents of this measure in their anticipation of the immediate effects to be produced by its adoption. On the one hand it is supposed by some that the character of women would be radically changed--that they would be unsexed, as it were, by clothing them with political rights, and that instead of modest, amiable and graceful beings, we should have bold, noisy and disgusting political demagogues, or something worse, if anything worse can be imagined. I think those who entertain such opinions are in error. The innate character of women is the result of God's laws, not of man's, nor can the laws of man affect that character beyond a very slight degree. Whatever rights may be given to them, and whatever duties may be charged upon them by human laws, their general character will remain unchanged. Their modesty, their delicacy, and intuitive sense of propriety, will never desert them, into whatever new positions their added rights or duties may carry them. So far as women, without change of character as women, are qualified to discharge the duties of citizenship, they will discharge them if called upon to do so, and beyond that they will not go. Nature has put barriers in the way of any excessive devotion of women to public affairs, and it is not necessary that nature's work in that respect should be supplemented by additional barriers invented by men. Such offices as women are qualified to fill will be sought by those who do not find other employment, and others they will not seek, or if they do, will seek in vain. To aid in removing as far as possible the disheartening difficulties which women dependent upon their own exertions encounter, it is, I think, desirable that such official positions as they can fill should be thrown open to them, and that they should be given the same power that men have to aid each other by their votes. I would say, remove all legal barriers that stand in the way of their finding employment, official or unofficial, and leave them as men are left, to depend for success upon their character and their abilities. As long as men are allowed to act as milliners, with what propriety can they exclude women from the post of school commissioners when chosen to such positions by their neighbors? To deny them such rights, is to leave them in a condition of political servitude as absolute as that of the African slaves before their emancipation. This conclusion is readily to be deduced from the opinion of Chief Justice Jay in the case of _Chisholm's Ex'rs vs. The State of Georgia (2 Dallas, 419-471)_, although the learned Chief Justice had of course no idea of any such application as I make of his opinion. The action was assumpsit by a citizen of the State of South Carolina, and the question was, whether the United States Court had jurisdiction, the State of Georgia declining to appear. The Chief Justice, in the course of his opinion, after alluding to the feudal idea of the character of the sovereign in England, and giving some of the reasons why he was not subject to suit before the courts of the kingdom, says: "The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the prince and the subject. No such ideas obtain here. At the revolution the sovereignty devolved on the people; and they are truly the sovereigns of the country, but _they are sovereigns without subjects_ (unless the African slaves among us may be so called), and have none to govern but themselves; the citizens of America _are equal as fellow-citizens, and as joint tenants in the sovereignty_." Now I beg leave to ask, in case this charge against Miss Anthony can be sustained, what equality and what sovereignty is enjoyed by the half of the citizens of these United States to which she belongs? Do they not, in that event, occupy, _politically_, exactly the position which the learned Chief Justice assigns to the African slaves? Are they not shown to be _subjects_ of the other half, who are the sovereigns? And is not their _political subjection_ as absolute as was that of the African slaves? If that charge has any basis to rest upon, the learned Chief Justice was wrong. The sovereigns of this country, according to the theory of this prosecution, are not sovereigns without subjects. Though two or three millions of their subjects have lately ceased to be such, and have become freemen, they still hold twenty millions of subjects in absolute _political_ bondage. If it be said that my language is stronger than the facts warrant, I appeal _to the record in this case_ for its justification. As deductions from what has been said, I respectfully insist, 1st. That upon the principles upon which our government is based, the privilege of the elective franchise cannot justly be denied to women. 2d. That women need it for their protection. 3d. That the welfare of both sexes will be promoted by granting it to them. Having occupied much more time than I intended in showing the justice and propriety of the claim made by my client to the privileges of a voter, I proceed to the consideration of the present state of the law on that subject: It would not become me, however clear my own convictions may be on the subject, to assert the right of women, under our constitution and laws as they now are, to vote at presidential and congressional elections, is free from doubt, because very able men have expressed contrary opinions on that question, and, so far as I am informed, there has been no authoritative adjudication upon it; or, at all events, none upon which the public mind has been content to rest as conclusive. I proceed, therefore, to offer such suggestions as occur to me, and to refer to such authorities bearing upon the question, as have fallen under my observation, hoping to satisfy your honor, not only that my client has committed no criminal offense, but that she has done nothing which she had not a legal and constitutional right to do. It is not claimed that, under our State constitution and the laws made in pursuance of it, women are authorized to vote at elections, other than those of private corporations, and, consequently, the right of Miss Anthony to vote at the election in question, can only be established by reference to an authority superior to and sufficient to overcome the provisions of our State constitution. Such authority can only be found, and I claim that it is found in the constitution of the United States. For convenience I beg leave to bring together the various provisions of that constitution which bear more or less directly upon the question: ARTICLE I, Section 2. "The House of Representatives shall be composed of members chosen every second year, by the people of the several States; and the electors in each State shall have the qualifications for electors of the most numerous branch of the State legislature." The same Article, Section 3, "The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years; and each senator shall have one vote." ARTICLE II, Section 1. "Each State shall appoint in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled in the Congress." ARTICLE IV, Section 2. "The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Same Article, Section 4. "The United States shall guarantee to every State in the union a republican form of government." THIRTEENTH AMENDMENT. DECEMBER 18, 1865. "1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." "2. Congress shall have power to enforce this article by appropriate legislation." FOURTEENTH AMENDMENT. JULY 28, 1868. Section 1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Section 2. "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." * * * * * Section 5. "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." FIFTEENTH AMENDMENT. Section 1. "The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude." Section 2. "The Congress shall have power to enforce this article by appropriate legislation." By reference to the provisions of the original Constitution, here recited, it appears that prior to the thirteenth, if not until the fourteenth, amendment, the whole power over the elective franchise, even in the choice of Federal officers, rested with the States. The Constitution contains no definition of the term "citizen," either of the United States, or of the several States, but contents itself with the provision that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." The States were thus left free to place such restrictions and limitations upon the "privileges and immunities" of citizens as they saw fit, so far as is consistent with a republican form of government, subject only to the condition that no State could place restrictions upon the "privileges or immunities" of the citizens of any other State, which would not be applicable to its own citizens under like circumstances. It will be seen, therefore, that the whole subject, as to what should constitute the "privileges and immunities" of the citizen being left to the States, no question, such as we now present, could have arisen under the original constitution of the United States. But now, by the fourteenth amendment, the United States have not only declared what constitutes citizenship, both in the United States and in the several States, securing the rights of citizens to "all persons born or naturalized in the United States;" but have absolutely prohibited the States from making or enforcing "_any law which shall abridge the privileges or immunities of citizens of the United States_." By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful. It has never, since the adoption of the fourteenth amendment, been questioned, and cannot be questioned, that women as well as men are included in the terms of its first section, nor that the same "privileges and immunities of citizens" are equally secured to both. What, then, are the "privileges and immunities of citizens of the United States" which are secured against such abridgement, by this section? I claim that these terms not only include the right of voting for public officers, but that they include that right as pre-eminently the most important of all the privileges and immunities to which the section refers. Among these privileges and immunities may doubtless be classed the right to life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws--this _political_ right--is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle constitutes the very corner-stone of our government--indeed, of all republican government. Upon that basis our separation from Great Britain was justified. "Taxation without representation is tyranny." This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the declaration of independence. We were slow in allowing its application to the African race, and have been still slower in allowing its application to women; but it has been done by the fourteenth amendment, rightly construed, by a definition of "citizenship," which includes women as well as men, and in the declaration that "the privileges and immunities of citizens shall not be abridged." If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged, must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure to the citizen this _political_ right, but that such was its principal, if not its sole object, those provisions of the section which follow it being devoted to securing the _personal_ rights of "life, liberty, property, and the equal protection of the laws." The clause on which we rely, to wit:--"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. _If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted._ If we go to the lexicographers and to the writers upon law, to learn what are the privileges and immunities of the "citizen" in a republican government, we shall find that the leading feature of citizenship is the enjoyment of the right of suffrage. The definition of the term "citizen" by _Bouvier_ is: "One who under the constitution and laws of the United States, has a right to vote for Representatives in Congress, and other public officers, and who is qualified to fill offices in the gift of the people." By _Worcester_--"An inhabitant of a republic who enjoys the rights of a freeman, and has a right to vote for public officers." By _Webster_--"In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate." The meaning of the word "citizen" is directly and plainly recognized by the latest amendment of the constitution (the fifteenth.) "_The right of the citizens of the United States to vote_ shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." This clause assumes that the right of citizens, _as such_, to vote, is an existing right. Mr. Richard Grant White, in his late work on Words and their Uses, says of the word citizen: "A citizen is a person who has certain political rights, and the word is properly used only to imply or suggest the possession of these rights." Mr. Justice Washington, in the case of _Corfield vs. Coryell (4 Wash, C.C. Rep. 380)_, speaking of the "privileges and immunities" of the citizen, as mentioned in Sec. 2, Art. 4, of the constitution, after enumerating the personal rights mentioned above, and some others, as embraced by those terms, says, "to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised." At that time the States had entire control of the subject, and could abridge this privilege of the citizen at its pleasure; but the judge recognizes the "elective franchise" as among the "privileges and immunities" secured, to a qualified extent, to the citizens of every State by the provisions of the constitution last referred to. When, therefore, the States were, by the fourteenth amendment, absolutely prohibited from abridging the privileges of the citizen, either by enforcing existing laws, or by the making of new laws, the right of every "citizen" to the full exercise of this privilege, as against State action, was absolutely secured. Chancellor Kent and Judge Story both refer to the opinion of Mr. Justice Washington, above quoted, with approbation. The Supreme Court of Kentucky, in the case of _Amy, a woman of color, vs. Smith (1 Littell's Rep. 326)_, discussed with great ability the questions as to what constituted citizenship, and what were the "privileges and immunities of citizens" which were secured by Sec. 2, Art. 4, of the constitution, and they showed, by an unanswerable argument, that the term "citizens," as there used, was confined to those who were entitled to the enjoyment of the elective franchise, and that that was among the highest of the "privileges and immunities" secured to the citizen by that section. The court say that, "to be a citizen it is necessary that he should be entitled to the enjoyment of these privileges and immunities, upon the same terms upon which they are conferred upon other citizens; and unless he is so entitled, _he cannot, in the proper sense of the term, be a citizen_." In the case of _Scott vs. Sanford (19 How. 404)_, Chief Justice Taney says: "The words 'people of the United States,' and 'citizens,' are synonymous terms, and mean the same thing; they describe the _political body, who, according to our republican institutions, form the sovereignty and hold the power, and conduct the government through their representatives_. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty." Mr. Justice Daniel, in the same case, (p. 476), says: "Upon the principles of etymology alone, the term citizen, as derived from _civitas_, conveys the idea of connection or identification with the state or government, and a participation in its functions. But beyond this, there is not, it is believed, to be found in the theories of writers on government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment of _an entire equality of privileges, civil and political_." Similar references might be made to an indefinite extent, but enough has been said to show that the term citizen, in the language of Mr. Justice Daniel, conveys the idea "of identification with the state or government, and a participation in its functions." Beyond question, therefore, the first section of the fourteenth amendment, by placing the citizenship of women upon a par with that of men, and declaring that the "privileges and immunities" of the citizen shall not be abridged, has secured to women, equally with men, the right of suffrage, unless that conclusion is overthrown by some other provision of the constitution. It is not necessary for the purposes of this argument to claim that this amendment prohibits a state from making or enforcing any law whatever, regulating the elective franchise, or prescribing the conditions upon which it may be exercised. But we do claim that in every republic the right of suffrage, in some form and to some extent, is not only one of the privileges of its citizens, but is the first, most obvious and most important of all the privileges they enjoy; that in this respect _all citizens are equal_, and that the effect of this amendment is, to prohibit the States from enforcing any law which denies this right to any of its citizens, or which imposes any restrictions upon it, which are inconsistent with a republican form of government. Within this limit, it is unnecessary for us to deny that the States may still regulate and control the exercise of the right. The only provisions of the constitution, which it can be contended conflict with the construction which has here been put upon the first section of the fourteenth amendment, are the fifteenth amendment, and the second section of the fourteenth. In regard to the fifteenth amendment, I shall only say, that if my interpretation of the fourteenth amendment is correct, there was still an object to be accomplished and which was accomplished by the fifteenth. The prohibition of any action abridging the privileges and immunities of citizens, contained in the fourteenth amendment, applies only to the States, and leaves the United States government free to abridge the political privileges and immunities of citizens of the United States, as such, at its pleasure. By the fifteenth amendment both the United States and the State governments, are prohibited from exercising this power, "on account of race, color, or previous condition of servitude" of the citizen. The first remark to be made upon the second section of the fourteenth amendment is, that it does not give and was not designed to give to the States any power to deny or abridge the right of any citizen to exercise the elective franchise. So far as it touches that subject, it was designed to be restrictive upon the States. It gives to them no power whatever. It takes away no power, but it gives none, and if the States possess the power to deny or abridge the right of citizens to vote, it must be derived from some other provision of the constitution. I believe none such can be found, which was not necessarily abrogated by the first section of this amendment. It may be conceded that the persons who prepared this section supposed, that, by other parts of the constitution, or in some other way, the States would still be authorized, notwithstanding the provisions of the first section, to deny to the citizens the privilege of voting, as mentioned in the second section; but their mistake cannot be held to add to, or to take from the other provisions of the constitution. It is very clear that they did not intend, by this section, _to give_ to the States any such power, but, believing that the States possessed it, they designed to hold the prospect of a reduction of their representation in Congress _in terrorem_ over them to prevent them from exercising it. They seem not to have been able to emancipate themselves from the influence of the original constitution which conceded this power to the States, or to have realized the fact that the first section of the amendment, when adopted, would wholly deprive the States of that power. But those who prepare constitutions are never those who adopt them, and consequently the views of those who frame them have little or no bearing upon their interpretation. The question for consideration here is, what the people, who, through their representatives in the legislatures, adopted the amendments, understood, or must be presumed to have understood, from their language. They must be presumed to have known that the "privileges and immunities" of citizens which were secured to them by the first section beyond the power of abridgment by the States, gave them the right to exercise the elective franchise, and they certainly cannot be presumed to have understood that the second section, which was also _designed to be restrictive_ upon the States, would be held to confer by implication a power upon them, which the first section in the most express terms prohibited. It has been, and may be again asserted, that the position which I have taken in regard to the second section is inadmissible, because it renders the section nugatory. That is, as I hold, an entire mistake. The leading object of the second section was the readjustment of the representation of the States in Congress, rendered necessary by the abolition of chattel slavery [_not of political slavery_], effected by the thirteenth amendment. This object the section accomplishes, and in this respect it remains wholly untouched, by my construction of it. Neither do I think the position tenable which has been taken by one tribunal, to which the consideration of this subject was presented, that the constitutional provision does not execute itself. The provisions on which we rely were negative merely, and were designed to nullify existing as well as any future State legislation interfering with our rights. This result was accomplished by the constitution itself. Undoubtedly before we could exercise our right, it was necessary that there should be a time and place appointed for holding the election and proper officers to hold it, with suitable arrangements for receiving and counting the votes. All this was properly done by existing laws, and our right _being made complete by the Constitution, no further legislation was required in our behalf_. When the State officers attempted to interpose between us and the ballot-box the State Constitution or State law, whether ancient or recent, abridging or denying our equal right to vote with other citizens, we had but to refer to the United States Constitution, prohibiting the States from enforcing any such constitutional provision or law, and our rights were complete; we needed neither Congressional nor State legislation in aid of them. The opinion of Mr. Justice Bradley, in a case in the United States Circuit Court in New Orleans (_1 Abb. U.S. Rep. 402_) would seem to be decisive of this question, although the right involved in that case was not that of the elective franchise. The learned justice says: "It was very ably contended on the part of the defendants that the fourteenth amendment was intended only to secure to all citizens _equal capacities before the law_. That was at first our view of it. But it does not so read. The language is: 'No State shall abridge the privileges or immunities of citizens of the United States.' What are the privileges and immunities of citizens? Are they capacities merely? Are they not also rights?" Senator Carpenter, who took part in the discussion of the fourteenth amendment in the Senate, and aided in its passage, says: "The fourteenth amendment executes itself in _every_ State of the Union.... It is thus the will of the United States in every State, and silences every State Constitution, usage or law which conflicts with it.... And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female.... And all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters and our daughters."--_Chicago Legal News_, vol. iv., No. 15. It has been said, with how much or how little truth I do not know, that the subject of securing to women the elective franchise was not considered in the preparation, or in the adoption of these amendments. It is wholly immaterial whether that was so or not. It is never possible to arrive at the intention of the people in adopting constitutions, except by referring to the language used. As is said by Mr. Cooley, "the intent is to be found in the instrument itself" (p. 55), and to that I have confined my remarks. It is not a new thing for constitutional and legislative acts to have an effect beyond the anticipation of those who framed them. It is undoubtedly true, that in exacting _Magna Charta_ from King John, the Barons of England provided better securities for the rights of the common people than they were aware of at the time, although the rights of the common people were neither forgotten nor neglected by them. It has also been said, perhaps with some truth, that the framers of the original Constitution of the United States "builded better than they knew;" and it is quite possible that in framing the amendments under consideration, those engaged in doing it have accomplished a much greater work than they were at the time aware of. I am quite sure that it will be fortunate for the country, if this great question of female suffrage, than which few greater were ever presented for the consideration of any people, shall be found, almost unexpectedly, to have been put at rest. The opinion of Mr. Justice Bradley, in regard to this amendment, in the case before referred to, if I understand it, corresponds very nearly with what I have here said. The learned judge, in one part of his opinion, says: "It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms. They may have had in mind but one particular phase of social and political wrong, which they desired to redress--yet, if the amendment, as framed and expressed, does, in fact, have a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach such social evils which were never before prohibited by constitutional amendment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decree what has, in fact, been done.... "It embraces much more. The 'privileges and immunities' secured by the original Constitution were only such as each State gave its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other States. "But the fourteenth amendment prohibits any State from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges, but it demands that _the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired_. (_1 Abbott's U.S. Rep. 397._) It will doubtless be urged as an objection to my position (that citizenship carries with it the right to vote) that it would, in that case, follow that infants and lunatics, who, as well as adults and persons of sound mind, are citizens, would also have that right. This objection, which appears to have great weight with certain classes of persons, is entirely without force. It takes no note of the familiar fact, that every legislative provision, whether constitutional or statutory, which confers any _discretionary_ power, is always confined in its operation to persons who are _compos mentis_. It is wholly unnecessary to except idiots and lunatics out of any such statute. They are excluded from the very nature of the case. The contrary supposition would be simply absurd. And, in respect to every such law, infants, during their minority, are in the same class. But are women, _who are not infants_, ever included in this category? Does any such principle of exclusion apply to them? Not at all. On the contrary, they stand, in this respect, upon the same footing as men, with the sole exception of the right to vote and the right to hold office. In every other respect, whatever rights and powers are conferred upon persons by law may be exercised by women as well as by men. They may transact any kind of business for themselves, or as agents or trustees for others; may be executors or administrators, with the same powers and responsibilities as men; and it ought not to be a matter of surprise or regret that they are now placed, by the fourteenth amendment, in other respects upon a footing of perfect equality. Although not directly connected with the argument as to the right secured to women by the Constitution, I deem it not improper to allude briefly to some of the popular objections against the propriety of allowing females the privilege of voting. I do this because I know from past experience that these popular objections, having no logical bearing upon the subject, are yet, practically, among the most potent arguments against the interpretation of the fourteenth amendment, which I consider the only one that its language fairly admits of. It is said that women do not desire to vote. Certainly many women do not, but that furnishes no reason for denying the right to those who do desire to vote. Many men decline to vote. Is that a reason for denying the right to those who would vote? I believe, however, that the public mind is greatly in error in regard to the proportion of female citizens who would vote if their right to do so were recognized. In England there has been to some extent a test of that question, with the following result, as given in the newspapers, the correctness of which, in this respect, I think there is no reason to doubt: "Woman suffrage is, to a certain extent, established in England, with the result as detailed in the London _Examiner_, that in 66 municipal elections, out of every 1,000 women who enjoy equal rights with men on the register, 516 went to the poll, which is but 48 less than the proportionate number of men. And out of 27,949 women registered, where a contest occurred, 14,416 voted. Of men there were 166,781 on the register, and 90,080 at the poll. The _Examiner_ thereupon draws this conclusion: 'Making allowance for the reluctance of old spinsters to change their habits, and the more frequent illness of the sex, it is manifest that women, if they had opportunity, would exercise the franchise as freely as men. There is an end, therefore, of the argument that women would not vote if they had the power.'" Our law books furnish, perhaps, more satisfactory evidence of the earnestness with which women in England are claiming the right to vote, under the reform act of 1867, aided by Lord Brougham's act of 1850. The case of _Chorlton_, appellant, _vs. Lings_, respondent, came before the Court of Common Pleas in England in 1869. It was an appeal from the decision of the revising barrister, for the borough of Manchester, to the effect "that Mary Abbott, being a woman, was not entitled to be placed on the register." Her right was perfect in all respects excepting that of sex. The court, after a very full and able discussion of the subject, sustained the decision of the revising barrister, denying to women the right to be placed on the register, and consequently denying their right to vote. The decision rested upon the peculiar phraseology of several Acts of Parliament, and the point decided has no applicability here. My object in referring to the case has been to call attention to the fact stated by the reporter, _that appeals of 5,436 other women were consolidated and decided with this_. No better evidence could be furnished of the extent and earnestness of the claim of women in England to exercise the elective franchise.--_Law Rep. Com. Pleas, 4-374._ I infer, without being able to say how the fact is, that the votes given by women, as mentioned in the newspapers, were given at municipal elections merely, and that the cases decided by the Court of Common Pleas relate to elections for members of Parliament. Another objection is, that the right to hold office must attend the right to vote, and that women are not qualified to discharge the duties of responsible offices. I beg leave to answer this objection by asking one or more questions. How many of the male bipeds who do our voting are qualified to hold high offices? How many of the large class to whom the right of voting is supposed to have been secured by the fifteenth amendment, are qualified to hold office? Whenever the qualifications of persons to discharge the duties of responsible offices is made the test of their right to vote, and we are to have a competitive examination on that subject, open to all claimants, my client will be content to enter the lists, and take her chances among the candidates for such honors. But the practice of the world, and our own practice, give the lie to this objection. Compare the administration of female sovereigns of great kingdoms, from Semiramis to Victoria, with the average administration of male sovereigns, and which will suffer by the comparison? How often have mothers governed large kingdoms, as regents, during the minority of their sons, and governed them well? Such offices as the "sovereigns" who rule them in this country have allowed women to hold (they having no voice on the subject), they have discharged the duties of with ever increasing satisfaction to the public; and Congress has lately passed an act, making the official bonds of married women valid, so that they could be appointed to the office of postmaster. The case of _Olive vs. Ingraham (7 Modern Rep. 263)_ was an action brought to try the title to an office. On the death of the sexton of the parish of St. Butolph, the place was to be filled by election, the voters being the housekeepers who "paid Scot and lot" in the parish. The widow of the deceased sexton (Sarah Bly) entered the lists against Olive, the plaintiff in the suit, and received 169 indisputable votes, and 40 votes given by women who were "housekeepers, and paid to church and poor." The plaintiff had 174 indisputable votes, and 22 votes given by such women as voted for Mrs. Bly. Mrs. Bly was declared elected. The action was brought to test two questions: 1. Whether women were legal voters; and 2. Whether a woman was capable of holding the office. The case was four times argued in the King's Bench, and all the judges delivered opinions, holding that the women were competent voters; that the widow was properly elected, and could hold the office. In the course of the discussion it was shown that women had held many offices, those of constable, church warden, overseer of the poor, keeper of the "gate house" (a public prison), governess of a house of correction, keeper of castles, sheriffs of counties, and high constable of England. If women are legally competent to hold minor offices, I would be glad to have the rule of law, or of propriety, shown which should exclude them from higher offices, and which marks the line between those which they may and those which they may not hold. Another objection is that women cannot serve as soldiers. To this I answer that capacity for military service has never been made a test of the right to vote. If it were, young men from sixteen to twenty-one would be entitled to vote, and old men from sixty and up-wards would not. If that were the test, some women would present much stronger claims than many of the male sex. Another objection is that engaging in political controversies is not consistent with the feminine character. Upon that subject, women themselves are the best judges, and if political duties should be found inconsistent with female delicacy, we may rest assured that women will either effect a change in the character of political contests, or decline to engage in them. This subject may be safely left to their sense of delicacy and propriety. If any difficulty on this account should occur, it may not be impossible to receive the votes of women at their places of residence. This method of voting was practiced in ancient Rome under the republic; and it will be remembered that when the votes of the soldiers who were fighting our battles in the Southern States were needed to sustain their friends at home, no difficulty was found in the way of taking their votes at their respective camps. I humbly submit to your honor, therefore, that on the constitutional grounds to which I have referred, Miss Anthony had a lawful right to vote; that her vote was properly received and counted; that the first section of the fourteenth amendment secured to her that right, and did not need the aid of any further legislation. But conceding that I may be in error in supposing that Miss Anthony had a right to vote, she has been guilty of no crime, if she voted in good faith believing that she had such right. This proposition appears to me so obvious, that were it not for the severity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it. To make out the offence, it is incumbent on the prosecution to show affirmatively, not only that the defendant knowingly voted, but that she so voted _knowing that she had no right to vote_. That is, the term "knowingly," applies, not to the fact of voting, but to the fact of _want of right_. Any other interpretation of the language would be absurd. We cannot conceive of a case where a party could vote without knowledge of the fact of voting, and to apply the term "knowingly" to the more act of voting, would make nonsense of the statute. This word was inserted as defining the essence of the offence, and it limits the criminality to cases where the voting is not only without right, but where it is done wilfully, with a _knowledge that it is without right_. Short of that there is no offence within the statute. This would be so upon well established principles, even if the word "knowingly" had been omitted, but that word was inserted to prevent the possibility of doubt on the subject, and to furnish security against the inability of stupid or prejudiced judges or jurors, to distinguish between wilful wrong and innocent mistake. If the statute had been merely, that "if at any election for representative in Congress any person shall vote without having a lawful right to vote, such person shall be deemed guilty of a crime," there could have been justly no conviction under it, without proof that the party voted _knowing_ that he had not a right to vote. If he voted innocently supposing he had the right to vote, but had not, it would not be an offence within the statute. An innocent mistake is not a crime, and no amount of judicial decisions can make it such. Mr. Bishop says, (1 Cr. Law, §205): "There can be no crime unless _a culpable intent_ accompanies the criminal act." The same author, (1 Cr. Prac. §521), repeated in other words, the same idea: "In order to render a party criminally responsible, _a vicious will_ must concur with a wrongful act." I quote from a more distinguished author: "_Felony is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake, or misanimadversion_, as where persons break open a door, in order to execute a warrant, which will not justify such proceeding: _Affectio enim tua nomen imponit operi tuo: item crimen non contrahitur nisi nocendi, voluntas intercedat_," which, as I understand, may read: "For your volition puts the name upon your act; and _a crime is not committed unless the will of the offender takes part in it_." 1 Hawk. P.C., p. 99, Ch. 85, §3. This quotation by Hawkins is, I believe, from Bracton, which carries the principle back to a very early period in the existence of the common law. It is a principle, however, which underlies all law, and must have been recognized at all times, wherever criminal law has been administered, with even the slightest reference to the principles of common morality and justice. I quote again on this subject from Mr. Bishop: "The doctrine of _the intent_ as it prevails in the criminal law, is necessarily _one of the foundation principles of public justice_. There is only one criterion by which the guilt of man is to be tested. It is whether the mind is criminal. Criminal law relates only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed guilty unless his mind was so. It is, therefore, a principle of our legal system, as probably it is of every other, that _the essence of an offence is the wrongful intent without which it cannot exist_." (_1 Bishop's Crim. Law, §287._) Again, the same author, writing on the subject of _knowledge_, as necessary to establish the intent, says: "It is absolutely necessary to constitute guilt, as in indictments for uttering forged tokens, or other attempts to defraud, or for receiving stolen goods, and offences of a similar description." (_1 Crim. Prac. §504._) In regard to the offence of obtaining property by false pretenses, the author says: "The indictment must allege that the defendant knew the pretenses to be false. _This is necessary upon the general principles of the law_, in order to show an offence, even though the statute does not contain the word 'knowingly.'" (_2 Id. §172._) As to a _presumed knowledge_ of the law, where the fact involves a question of law, the same author says: "The general doctrine laid down in the foregoing sections," (i.e. that every man is presumed to know the law, and that ignorance of the law does not excuse,) "is plain in itself and plain in its application. Still there are cases, the precise nature and extent of which are not so obvious, wherein ignorance of the law constitutes, in a sort of indirect way, not in itself a defence, but a foundation on which another defence rests. Thus, if the guilt or innocence of a prisoner, depends on the fact to be found by the jury, of his having been or not, when he did the act, in some precise mental condition, _which mental condition is the gist of the offence_, the jury in determining this question of mental condition, _may_ take into consideration his ignorance or misinformation in a matter of law. For example, to constitute larceny, there must be an intent to steal, which involves the knowledge that the property taken does not belong to the taker; yet, if all the facts concerning the title are known to the accused, and so the question is one merely of law whether the property is his or not, still he may show, and the showing _will be a defence_ to him against the criminal proceeding, that he _honestly believed it his through a misapprehension of the law_." (1 Cr. Law, §297.) The conclusions of the writer here, are correct, but in a part of the statement the learned author has thrown some obscurity over his own principles. The doctrines elsewhere enunciated by him, show with great clearness, that in such cases _the state of the mind constitutes the essence of the offence_, and if the state of the mind which the law condemns does not exist, in connection with the act, there is no offence. It is immaterial whether its non-existence be owing to ignorance of law or ignorance of fact, in either case the fact which the law condemns, the criminal intent, is wanting. It is not, therefore, in an "indirect way," that ignorance of the law in such cases constitutes a defence, but in the most direct way possible. It is not a fact which jurors "may take into consideration," or not, at their pleasure, but which they must take into consideration, because, in case the ignorance exists, no matter from what cause, _the offence which the statute describes is not committed_. In such case, ignorance of the law is not interposed as a shield to one committing a criminal act, but merely to show, as it does show, that no criminal act has been committed. I quote from Sir Mathew Hale on the subject. Speaking of larceny, the learned author says: "As it is _cepit_ and _asportavit_, so it must be _felonice_, or _animo furandi_, otherwise it is not felony, for _it is the mind_ that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, the intention must be judged of by the circumstances of the fact, and these circumstances are various, and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in the case. If A., thinking he hath a title to the house of B., seizeth it as his own ... this regularly makes no felony, but a trespass only; but yet this may be a trick to colour a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly, or being charged with the goods denies it." (1 Hales P.C. 509.) I concede, that if Miss Anthony voted, knowing that as a woman she had no right to vote, she may properly be convicted, and that if she had dressed herself in men's apparel, and assumed a man's name, or resorted to any other artifice to deceive the board of inspectors, the jury might properly regard her claim of right, to be merely colorable, and might, in their judgment, pronounce her guilty of the offence charged, in case the constitution has not secured to her the right she claimed. All I claim is, that if she voted in perfect good faith, believing that it was her right, she has committed no crime. An innocent mistake, whether of law or fact, though a wrongful act may be done in pursuance of it, cannot constitute a crime. [The following cases and authorities were referred to and commented upon by the counsel, as sustaining his positions: _U.S. vs. Conover, 3 McLean's Rep. 573; The State vs. McDonald, 4 Harrington, 555; The State vs. Homes, 17 Mo. 379; Rex vs. Hall, 3 C. & P. 409, (S.C. 14 Eng. C.L.); The Queen vs. Reed, 1 C. & M. 306. (S.C. 41 Eng. C.L.); Lancaster's Case, 3 Leon. 208; Starkie on Ev., Part IV, Vol. 2, p. 828, 3d Am. Ed._] The counsel then said, there are some cases which I concede cannot be reconciled with the position which I have endeavoured to maintain, and I am sorry to say that one of them is found in the reports of this State. As the other cases are referred to in that, and the principle, if they can be said to stand on any principle, is in all of them the same, it will only be incumbent on me to notice that one. That case is not only irreconcilable with the numerous authorities and the fundamental principles of criminal law to which I have referred, but the enormity of its injustice is sufficient alone to condemn it. I refer to the case of _Hamilton vs. The People_, (_57 Barb. 725_). In that case Hamilton had been convicted of a misdemeanor, in having voted at a general election, after having been previously convicted of a felony and sentenced to two years imprisonment in the state prison, and not having been pardoned; the conviction having by law deprived him of citizenship and right to vote, unless pardoned and restored to citizenship. The case came up before the General Term of the Supreme Court, on writ of error. It appeared that on the trial evidence was offered, that before the prisoner was discharged from the state prison, he and his father applied to the Governor for a pardon, and that the Governor replied in writing, that on the ground of the prisoner's being a minor at the time of his discharge from prison, a pardon would not be necessary, and that he would be entitled to all the rights of a citizen on his coming of age. They also applied to two respectable counsellors of the Supreme Court, and they confirmed the Governor's opinion. All this evidence was rejected. It appeared that the prisoner was seventeen years old when convicted of the felony, and was nineteen when discharged from prison. The rejection of the evidence was approved by the Supreme Court on the ground that the prisoner was bound to know the law, and was presumed to do so, and his conviction was accordingly confirmed. Here a young man, innocent so far as his conduct in this case was involved, was condemned, for acting in good faith upon the advice, (mistaken advice it may be conceded,) of one governor and two lawyers to whom he applied for information as to his rights; and this condemnation has proceeded upon the assumed ground, conceded to be false in fact, that he knew the advice given to him was wrong. On this judicial fiction the young man, in the name of justice, is sent to prison, punished for a mere mistake, and a mistake made in pursuance of such advice. It cannot be, consistently with the radical principles of criminal law to which I have referred, and the numerous authorities which I have quoted, that this man was guilty of a crime, that his _mistake_ was a crime, and I think the judges who pronounced his condemnation, upon their own principles, better than their victim, deserved the punishment which they inflicted. The condemnation of Miss Anthony, her good faith being conceded, would do no less violence to any fair administration of justice. One other matter will close what I have to say. Miss Anthony believed, and was advised that she had a right to vote. She may also have been advised, as was clearly the fact, that the question as to her right could not be brought before the courts for trial, without her voting or offering to vote, and if either was criminal, the one was as much so as the other. Therefore she stands, now arraigned as a criminal, for taking the only steps by which it was possible to bring the great constitutional question as to her right, before the tribunals of the country for adjudication. If for thus acting, in the most perfect good faith, with motives as pure and impulses as noble as any which can find place in your honor's breast in the administration of justice, she is by the laws of her country to be condemned as a criminal, she must abide the consequences. Her condemnation, however, under such circumstances, would only add another most weighty reason to those which I have already advanced, to show that women need the aid of the ballot for their protection. Upon the remaining question, of the good faith of the defendant, it is not necessary for me to speak. That she acted in the most perfect good faith stands conceded. Thanking your honor for the great patience with which you have listened to my too extended remarks, I submit the legal questions which the case involves for your honor's consideration. * * * THE COURT addressed the jury as follows: _Gentlemen of the Jury_: I have given this case such consideration as I have been able to, and, that there might be no misapprehension about my views, I have made a brief statement in writing. The defendant is indicted under the act of Congress of 1870, for having voted for Representatives in Congress in November, 1872. Among other things, that Act makes it an offence for any person knowingly to vote for such Representatives without having a right to vote. It is charged that the defendant thus voted, she not having a right to vote because she is a woman. The defendant insists that she has a right to vote; that the provision of the Constitution of this State limiting the right to vote to persons of the male sex is in violation of the 14th Amendment of the Constitution of the United States, and is void. The 13th, 14th and 15th Amendments were designed mainly for the protection of the newly emancipated negroes, but full effect must nevertheless be given to the language employed. The 13th Amendment provided that neither slavery nor involuntary servitude should longer exist in the United States. If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some States it was attempted to be evaded by enactments cruel and oppressive in their nature, as that colored persons were forbidden to appear in the towns except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the 14th and 15th Amendments were enacted. The 14th Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some State. No mode existed, it was said, of obtaining a citizenship of the United States except by first becoming a citizen of some State. This question is now at rest. The 14th Amendment defines and declares who should be citizens of the United States, to wit: "All persons born or naturalized in the United States and subject to the jurisdiction thereof." The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification every person born in the United States or naturalized is declared to be a citizen of the United States, and of the State wherein he resides. After creating and defining citizenship of the United States, the Amendment provides that no State shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is, the rights existing or belonging to that condition or capacity. The words "or citizen of a State," used in the previous paragraph are carefully omitted here. In article 4, paragraph 2, of the Constitution of the United States it had been already provided in this language, viz: "the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States." The rights of citizens of the States and of citizens of the United States are each guarded by these different provisions. That these rights were separate and distinct, was held in the Slaughter House Cases recently decided by the United States Supreme Court at Washington. The rights of citizens of the State, as such, are not under consideration in the 14th Amendment. They stand as they did before the adoption of the 14th Amendment, and are fully guaranteed by other provisions. The rights of citizens of the States have been the subject of judicial decision on more than one occasion. _Corfield agt. Coryell, 4 Wash.; C.C.R., 371. Ward agt. Maryland; 12 Wall., 430. Paul agt. Virginia, 8 Wall., 140._ These are the fundamental privileges and immunities belonging of right to the citizens of all free governments, such as the right of life and liberty; the right to acquire and possess property, to transact business, to pursue happiness in his own manner, subject to such restraint as the Government may adjudge to be necessary for the general good. In _Cromwell agt. Nevada, 6 Wallace, 36_, is found a statement of some of the rights of a citizen of the United States, viz: "To come to the seat of the Government to assert any claim he may have upon the Government, to transact any business he may have with it; to seek its protection; to share its offices; to engage in administering its functions. He has the right of free access to its seaports through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States." Another privilege of a citizen of the United States, says Miller, Justice, in the "Slaughter House" cases, is to demand the care and protection of the Federal Government over his life, liberty and property when on the high seas or within the jurisdiction of a foreign government. The right to assemble and petition for a redress of grievances, the privilege of the writ of _habeas corpus_, he says, are rights of the citizen guaranteed by the Federal Constitution. The right of voting, or the privilege of voting, is a right or privilege arising under the Constitution of the State, and not of the United States. The qualifications are different in the different States. Citizenship, age, sex, residence, are variously required in the different States, or may be so. If the right belongs to any particular person, it is because such person is entitled to it by the laws of the State where he offers to exercise it, and not because of citizenship of the United States. If the State of New York should provide that no person should vote until he had reached the age of 31 years, or after he had reached the age of 50, or that no person having gray hair, or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to be a violation of any right derived or held under the Constitution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent State; but if rights of a citizen are thereby violated, they are of that fundamental class derived from his position as a citizen of the State, and not those limited rights belonging to him as a citizen of the United States, and such was the decision in _Corfield agt. Coryell_. (Supra.) The United States rights appertaining to this subject are those first under article I, paragraph 2, of the United States Constitution, which provides that electors of Representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, and second, under the 15th Amendment, which provides that the right of a citizen of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. If the Legislature of the State of New York should require a higher qualification in a voter for a representative in Congress than is required for a voter for a Member of Assembly, this would, I conceive, be a violation of a right belonging to one as a citizen of the United States. That right is in relation to a Federal subject or interest, and is guaranteed by the Federal Constitution. The inability of a State to abridge the right of voting on account of race, color, or previous condition of servitude, arises from a Federal guaranty. Its violation would be the denial of a Federal right--that is a right belonging to the claimant as a citizen of the United States. This right, however, exists by virtue of the 15th Amendment. If the 15th Amendment had contained the word "sex," the argument of the defendant would have been potent. She would have said, an attempt by a State to deny the right to vote because one is of a particular sex, is expressly prohibited by that Amendment. The amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male sex. In saying this, there is, in my judgment, no violation of the letter or of the spirit of the 14th or of the 15th Amendment. This view is assumed in the second section of the 14th Amendment, which enacts that if the right to vote for Federal officers is denied by any state to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in proportion specified. Not only does this section assume that the right of male inhabitants to vote was the especial object of its protection, but it assumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right. The case of Myra Bradwell, decided at a recent term of the Supreme Court of the United States, sustains both the positions above put forth, viz: First, that the rights referred to in the 14th Amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State, and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practice as an attorney and counsellor at law, in the Courts of Illinois. Her application was denied, and upon appeal to the Supreme Court of the United States, it was there held that to give jurisdiction under the 14th Amendment, the claim must be of a right pertaining to citizenship of the United States, and that the claim made by her did not come within that class of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not entitled to a license to practice law. It does not appear that the other Judges passed upon that question. The 14th Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law. If she believed she had a right to vote, and voted in reliance upon that belief, does that relieve her from the penalty? It is argued that the knowledge referred to in the act relates to her knowledge of the illegality of the act, and not to the act of voting; for it is said that she must know that she voted. Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed to understand and to intend the necessary effects of his own acts. Miss Anthony knew that she was a woman, and that the constitution of this State prohibits her from voting. She intended to violate that provision--intended to test it, perhaps, but certainly intended to violate it. The necessary effect of her act was to violate it, and this she is presumed to have intended. There was no ignorance of any fact, but all the facts being known, she undertook to settle a principle in her own person. She takes the risk, and she cannot escape the consequences. It is said, and authorities are cited to sustain the position, that there can be no crime unless there is a culpable intent; to render one criminally responsible a vicious will must be present. A commits a trespass on the land of B, and B, thinking and believing that he has a right to shoot an intruder on his premises, kills A on the spot. Does B's misapprehension of his rights justify his act? Would a Judge be justified in charging the jury that if satisfied that B supposed he had a right to shoot A he was justified, and they should find a verdict of not guilty? No Judge would make such a charge. To constitute a crime, it is true, that there must be a criminal intent, but it is equally true that knowledge of the facts of the case is always held to supply this intent. An intentional killing bears with it evidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle is the same in the case before us, and in all criminal cases. The precise question now before me has been several times decided, viz.: that one illegally voting was bound and was assumed to know the law, and that a belief that he had a right to vote gave no defense, if there was no mistake of fact. (Hamilton against The People, 57th of Barbour, p. 625; State against Boyet, 10th of Iredell, p. 336; State against Hart, 6th Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, 404.) No system of criminal jurisprudence can be sustained upon any other principle. Assuming that Miss Anthony believed she had a right to vote, that fact constitutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law. Upon this evidence I suppose there is no question for the jury and that the jury should be directed to find a verdict of guilty. JUDGE SELDEN: I submit that on the view which your Honor has taken, that the right to vote and the regulation of it is solely a State matter. That this whole law is out of the jurisdiction of the United States Courts and of Congress. The whole law upon that basis, as I understand it, is not within the constitutional power of the general Government, but is one which applies to the States. I suppose that it is for the jury to determine whether the defendant is guilty of a crime or not. And I therefore ask your Honor to submit to the jury these propositions: First--If the defendant, at the time of voting, believed that she had a right to vote and voted in good faith in that belief, she is not guilty of the offense charged. Second--In determining the question whether she did or did not believe that she had a right to vote, the jury may take into consideration, as bearing upon that question, the advice which she received from the counsel to whom she applied. Third--That they may also take into consideration, as bearing upon the same question, the fact that the inspectors considered the question and came to the conclusion that she had a right to vote. Fourth--That the jury have a right to find a general verdict of guilty or not guilty as they shall believe that she has or has not committed the offense described in the Statute. A professional friend sitting by has made this suggestion which I take leave to avail myself of as bearing upon this question: "The Court has listened for many hours to an argument in order to decide whether the defendant has a right to vote. The arguments show the same question has engaged the best minds of the country as an open question. Can it be possible that the defendant is to be convicted for acting upon such advice as she could obtain while the question is an open and undecided one?" THE COURT: You have made a much better argument than that, sir. JUDGE SELDEN: As long as it is an open question I submit that she has not been guilty of an offense. At all events it is for the jury. THE COURT: I cannot charge these propositions of course. The question, gentlemen of the jury, in the form it finally takes, is wholly a question or questions of law, and I have decided as a question of law, in the first place, that under the 14th Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote. And I have decided also that her belief and the advice which she took does not protect her in the act which she committed. If I am right in this, the result must be a verdict on your part of guilty, and I therefore direct that you find a verdict of guilty. JUDGE SELDEN: That is a direction no Court has power to make in a criminal case. THE COURT: Take the verdict, Mr. Clerk. THE CLERK: Gentlemen of the jury, hearken to your verdict as the Court has recorded it. You say you find the defendant guilty of the offense whereof she stands indicted, and so say you all? JUDGE SELDEN: I don't know whether an exception is available, but I certainly must except to the refusal of the Court to submit those propositions, and especially to the direction of the Court that the jury should find a verdict of guilty. I claim that it is a power that is not given to any Court in a criminal case. Will the Clerk poll the jury? THE COURT: No. Gentlemen of the jury, you are discharged. On the next day a motion for a new trial was made by Judge Selden, as follows: _May it please the Court_: The trial of this case commenced with a question of very great magnitude--whether by the constitution of the United States the right of suffrage was secured to female equally with male citizens. It is likely to close with a question of much greater magnitude--whether the right of trial by jury is absolutely secured by the federal constitution to persons charged with crime before the federal courts. I assume, without attempting to produce any authority on the subject, that this Court has power to grant to the defendant a new trial in case it should appear that in the haste and in the lack of opportunity for examination which necessarily attend a jury trial, any material error should have been committed prejudicial to the defendant, as otherwise no means whatever are provided by the law for the correction of such errors. The defendant was indicted, under the nineteenth section of the act of Congress of May 31st, 1870, entitled, "An act to enforce the right of citizens of the United States to vote in the several states of this Union, and for other purposes," and was charged with having knowingly voted, without having a lawful right to vote, at the congressional election in the eighth ward of the City of Rochester, in November last; the only ground of illegality being that the defendant was a woman. The provisions of the act of Congress, so far as they bear upon the present case, are as follows: "Section 19. If at any election for representative or delegate in the Congress of the United States, any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead or fictitious, or vote more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully entitled to vote, or vote without having a lawful right to vote, ... every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States, of competent jurisdiction, and, on conviction thereof, shall be punished by a fine not exceeding $500 or by imprisonment for a term not exceeding three years, or both, in the discretion of the Court, and shall pay the costs of prosecution." It appeared on the trial that before voting the defendant called upon a respectable lawyer, and asked his opinion whether she had a right to vote, and he advised her that she had such right, and the lawyer was examined as a witness in her behalf, and testified that he gave her such advice, and that he gave it in good faith, believing that she had such right. It also appeared that when she offered to vote, the question whether as a woman she had a right to vote, was raised by the inspectors, and considered by them in her presence, and they decided that she had a right to vote, and received her vote accordingly. It was also shown on the part of the government, that on the examination of the defendant before the commissioner, on whose warrant she was arrested, she stated that she should have voted, if allowed to vote, without reference to the advice she had received from the attorney whose opinion she had asked; that she was not influenced to vote by that opinion; that she had before determined to offer her vote, and had no doubt about her right to vote. At the close of the testimony the defendant's counsel proceeded to address the jury, and stated that he desired to present for consideration three propositions, two of law and one of fact: First--That the defendant had a lawful right to vote. Second--That whether she had a lawful right to vote or not, it she honestly believed that she had that right and voted in good faith in that belief, she was guilty of no crime. Third--That when she gave her vote she gave it in good faith, believing that it was her right to do so. That the two first propositions presented questions for the Court to decide, and the last for the jury. When the counsel had proceeded thus far, the Court suggested that the counsel had better discuss in the first place the questions of law; which the counsel proceeded to do, and having discussed the two legal questions at length, asked leave then to say a few words to the jury on the question of fact. The Court then said to the counsel that he thought that had better be left until the views of the Court upon the legal questions should be made known. The District Attorney thereupon addressed the Court at length upon the legal questions, and at the close of his argument the Court delivered an opinion adverse to the positions of the defendant's counsel upon both of the legal questions presented, holding that the defendant was not entitled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would constitute no defense--the grounds of the decision on the last point being that she was bound to know that by law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it constituted no defense to the crime with which she was charged. The decision of the Court upon these questions was read from a written document. At the close of the reading, the Court said that the decision of these questions disposed of the case and left no question of fact for the jury, and that he should therefore direct the jury to find a verdict of guilty, and proceeded to say to the jury that the decision of the Court had disposed of all there was in the case, and that he directed them to find a verdict of guilty, and he instructed the clerk to enter a verdict of guilty. At this point, before any entry had been made by the clerk, the defendant's counsel asked the Court to submit the case to the jury, and to give to the jury the following several instructions: First--That if the defendant, at the time of voting, believed that she had a right to vote, and voted in good faith in that belief, she is not guilty of the offence charged. Second--In determining the question whether she did or did not believe that she had a right to vote, the jury may take into consideration, as bearing upon that question, the advice which she received from the counsel to whom she applied. Third--That they may also take into consideration as bearing upon the same question, the fact that the inspectors considered the question, and came to the conclusion that she had a right to vote. Fourth--That the jury have a right to find a general verdict of guilty or not guilty, as they shall believe that she has or has not been guilty of the offense described in the statute. The Court declined to submit the case to the jury upon any question whatever, and directed them to render a verdict of guilty against the defendant. The defendant's counsel excepted to the decision of the Court upon the legal questions to its refusal to submit the case to the jury: to its refusal to give the instructions asked; and to its direction to the jury to find a verdict of guilty against the defendant--the counsel insisting that it was a direction which no Court had a right to give in a criminal case. The Court then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to the verdict as the Court hath recorded it. You say you find the defendant guilty of the offence charged. So say you all." No response whatever was made by the jury, either by word or sign. They had not consulted together in their seats or otherwise. Neither of them had spoken a word. Nor had they been asked whether they had or had not agreed upon a verdict. The defendant's counsel then asked that the clerk be requested to poll the jury. The Court said, "that cannot be allowed. Gentlemen of the jury, you are discharged," and the jurors left the box. No juror spoke a word during the trial, from the time they were impanelled to the time of their discharge. Now I respectfully submit, that in these proceedings the defendant has been substantially denied her constitutional right of trial by jury. The jurors composing the panel have been merely silent spectators of the conviction of the defendant by the Court. They have had no more share in her trial and conviction than any other twelve members of the jury summoned to attend this Court, or any twelve spectators who have sat by during the trial. If such course is allowable in this case, it must be equally allowable in all criminal cases, whether the charge be for treason, murder or any minor grade of offence which can come under the jurisdiction of a United States court; and as I understand it, if correct, substantially abolishes the right of trial by jury. It certainly does so in all those cases, where the judge shall be of the opinion that the facts which he may regard as clearly proved, lead necessarily to the guilt of the defendant. Of course by refusing to submit any question to the jury, the judge refuses to allow counsel to address the jury in the defendant's behalf. The constitutional provisions which I insist are violated by this proceeding are the following: Constitution of the United States, article 3, section 2. "The trial of all crimes, except in cases of impeachment, shall be by jury." Amendments to Constitution, article 6. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." In accordance with these provisions, I insist that in every criminal case, where the party has pleaded not guilty, whether upon the trial the guilt of such party appears to the Judge to be clear or not, the response to the question, guilty or not guilty, must come from the jury, must be their voluntary act, and cannot be imposed upon them by the Court. No opportunity has been given me to consult precedents on this subject, but a friend has referred me to an authority strongly supporting my position, from which I will quote, though I deem a reference to precedents unnecessary to sustain the plain declarations of the Constitution: I refer to the case of the _State vs. Shule_, (_10 Iredell, 153_,) the substance of which is stated in _2 Graham & Waterman_ on New Trials, page 363. Before stating that case I quote from the text of G. & W. "The verdict is to be the result of the deliberation of the jury upon all the evidence in the case. The Court has no right to anticipate the verdict by an expression of opinion calculated so to influence the jury as to take from them their independence of action." In the _State vs. Shule_, two defendants were indicted for an affray. "The jury remaining out a considerable time, at the request of the prosecuting attorney they were sent for by the Court. The Court then charged them that although Jones, (the other defendant,) had first commenced a battery upon Shule, yet, if the jury believed the evidence, the defendant, Shule, was also guilty. Thereupon, one of the jurors remarked that they had agreed to convict Jones, but were about to acquit Shule. The Court then charged the jury again, and told them that they could retire if they thought proper to do so. The jury consulted together a few minutes in the Court room. The prosecuting attorney directed the clerk to enter a verdict of guilty as to both defendants. When the clerk had entered the verdict, the jury were asked to attend to it, as it was about to be read by the clerk. The clerk then read the verdict in the hearing of the jury. The jury, upon being requested, if any of them disagreed to the verdict to make, it known by a nod, seemed to express their unanimous assent; and no juror expressed his dissent." In reviewing the case the Court say: "The error complained of is, that before the jury had announced their verdict, and in fact after they had intimated an intention to acquit the defendant, Shule, the Court allowed the clerk to be directed to enter a verdict finding him guilty, and after the verdict was so entered, allowed the jury to be asked if any of them disagreed to the verdict which had been recorded by the clerk. No juror expressed his dissent; but by a nod which appeared to be made by each juror, expressed their unanimous assent. The innovation is, that instead of permitting the jury to give their verdict, the Court allows a verdict to be entered for them, such as it is to be presumed the Court thinks they ought to render, and then they are asked if any of them disagree to it; thus making a verdict for them, unless they are bold enough to stand out against a plain intimation of the opinion of the Court." A _venire de novo_ was ordered. The principal difference between this case and the one under consideration is, that in the latter the Court directed the clerk to enter the verdict, and in the former he was allowed to do so, and in the latter the Court denied liberty to the jurors to dissent from the verdict, and in the former the Court allowed such dissent. With what jealous care the right of trial by jury in criminal cases has been guarded by every English speaking people from the days of King John, indeed from the days of King Alfred, is known to every lawyer and to every intelligent layman, and it does not seem to me that such a limitation of that right as is presented by the proceedings in this case, can be reconciled either with constitutional provisions, with the practice of courts, with public sentiment on the subject, or with safety in the administration of justice. How the question would be regarded by the highest Court of this State may fairly be gathered from its decision in the case of _Cancemi, 18 N.Y., 128_, where, on a trial for murder, one juror, some time after the trial commenced, being necessarily withdrawn, a stipulation was entered into, signed by the District-Attorney, and by the defendant and his counsel, to the effect that the trial should proceed before the remaining eleven jurors, and that their verdict should have the same effect as the verdict of a full panel would have. A verdict of guilty having been rendered by the eleven jurors, was set aside and a new trial ordered by the Court of Appeals, on the ground that the defendant could not, even by his own consent, be lawfully tried, by a less number of jurors than twelve. It would seem to follow that he could not waive the entire panel, and effectually consent to be tried by the Court alone, and still less could the Court, against his protest, assume the duties of the jury, and effectually pronounce the verdict of guilty or not guilty in their stead. It will doubtless be insisted that there was no disputed question of fact upon which the jury were required to pass. In regard to that, I insist that however clear and conclusive the proof of the facts might appear to be, the response to the question, guilty or not guilty, must under the Constitution come from the jury and could not be supplied by the judgment of the Court, unless, indeed, the jury should see fit to render a special verdict, which they always may, but can never be required, to do. It was the province of the Court to instruct the jury as to the law, and to point out to them how clearly the law, on its view of the established facts, made out the offence; but it has no authority to instruct them positively on any question of fact, or to order them to find any particular verdict. That must be their spontaneous work. But there was a question of fact, which constituted the very essence of the offence, and one on which the jury were not only entitled to exercise, but were in duty bound to exercise, their independent judgment. That question of fact was, whether the defendant, at the time when she voted, knew that she had not a right to vote. The statute makes this knowledge the very gist of the offence, without the existence of which, in the mind of the voter, at the time of voting, there is no crime. There is none by the statute and none in morals. The existence of this knowledge, in the mind of the voter, at the time of voting, is under the statute, necessarily a fact and nothing but a fact, and one which the jury was bound to find as a fact, before they could, without violating the statute, find the defendant guilty. The ruling which took that question away from the jury, on the ground that it was a question of law and not of fact, and which declared that as a question of law, the knowledge existed, was, I respectfully submit, a most palpable error, both in law and justice. It was an error in law, because its effect was to deny any force whatever to the most important word which the statute uses in defining the offense--the word "knowingly." It was also unjust, because it makes the law declare a known falsehood as a truth, and then by force of that judicial falsehood condemns the defendant to such punishment as she could only lawfully be subject to, if the falsehood were a truth. I admit that it is an established legal maxim that every person (judicial officers excepted) is bound, and must be presumed, to know the law. The soundness of this maxim, in all the cases to which it can properly be applied, I have no desire to question; but it has no applicability whatever to this case. It applies in every case where a party does an act which the law pronounces criminal, whether the party knows or does not know that the law has made the act a crime. That maxim would have applied to this case, if the defendant had voted, knowing that she had no legal right to vote; without knowing that the law had made the act of knowingly voting without a right, a crime. In that case she would have done the act which the law made a crime, and could not have shielded herself from the penalty by pleading ignorance of the law. But in the present case the defendant has not done the act which the law pronounces a crime. The law has not made the act of voting without a lawful right to vote, a crime, where it is done by mistake, and in the belief by the party voting that he has the lawful right to vote. The crime consists in voting "knowingly," without lawful right. Unless the knowledge exists in fact, is the very gist of the offence is wanting. To hold that the law presumes conclusively that such knowledge exists in all cases where the legal right is wanting, and to reject all evidence to the contrary, or to deny to such evidence any effect, as has been done on this trial, is to strike the word "knowingly" out of the statute--and to condemn the defendant on the legal fiction that she was acting in bad faith, it being all the while conceded that she was in fact acting in good faith. I admit that there are precedents to sustain such ruling, but they cannot be reconciled with the fundamental principles of criminal law, nor with the most ordinary rules of justice. Such a ruling cannot but shock the moral sense of all right-minded, unprejudiced men. No doubt the assumption by the defendant of a belief of her right to vote might be made use of by her as a mere cover to secure the privilege of giving a known illegal vote, and of course that false assumption would constitute no defence to the charge of illegal voting. If the defendant had dressed herself in male attire, and had voted as John Anthony, instead of Susan, she would not be able to protect herself against a charge of voting with a knowledge that she had no right to vote, by asserting her belief that she had a right to vote as a woman. The artifice would no doubt effectually overthrow the assertion of good faith. No such question, however, is made here. The decision of which I complain concedes that the defendant voted in good faith, in the most implicit belief that she had a right to vote, and condemns her on the strength of the legal fiction, conceded to be in fact a mere fiction, that she knew the contrary. But if the facts admitted of a doubt of the defendant's good faith, that was a question for the jury, and it was clear error for the court to assume the decision of it. Again. The denial of the right to poll the jury was most clearly an error. Under the provisions of the constitution which have been cited, the defendant could only be convicted on the verdict of a jury. The case of Cancemi shows that such jury must consist of twelve men; and it will not be claimed that anything less than the unanimous voice of the jury can be received as their verdict. How then could the defendant be lawfully deprived of the right to ask every juror if the verdict had his assent? I believe this is a right which was never before denied to a party against whom a verdict was rendered in any case, either civil or criminal. The following cases show, and many others might be cited to the same effect, that the right to poll the jury is an absolute right in all cases, civil and criminal. (The People vs. Perkins, 1 Wend. 91. Jackson vs. Hawks, 2 Wend. 619. Fox vs. Smith. 3 Cowen, 23.) The ground on which the right of the defendant to vote has been denied, is, as I understand the decision of the court, "that the rights of the citizens of the state as such were not under consideration in the fourteenth amendment; that they stand as they did before that amendment.... The right of voting or the privilege of voting is a right or privilege arising under the constitution of the state, and not of the United States. If the right belongs to any particular person, it is because such person is entitled to it as a citizen of the state where he offers to exercise it, and not because of citizenship of the United States.... The regulation of the suffrage is conceded to the states as a state right." If this position be correct, which I am not now disposed to question, I respectfully insist that the congress of the United States had no power to pass the act in question, that by doing so it has attempted to usurp the rights of the states, and that all proceedings under the act are void. I claim therefore that the defendant is entitled to a new trial. First--Because she has been denied her right of trial by jury. Second--Because she has been denied the right to ask the jury severally whether they assented to the verdict which the court had recorded for them. Third--Because the court erroneously held, that the defendant had not a lawful right to vote. Fourth--Because the court erroneously held, that if the defendant, when she voted, did so in good faith, believing that she had a right to vote, that fact constituted no defence. Fifth--Because the court erroneously held that the question, whether the defendant, at the time of voting knew that she had not a right to vote, was a question of law to be decided by the court, and not a question of fact to be decided by the jury. Sixth--Because the court erred in holding that it was a presumption of law that the defendant knew that she was not a legal voter, although in fact she had not that knowledge. Seventh--Because congress had no constitutional right to pass the act under which the defendant was indicted, and the act and all proceedings under it are void. Sir, so far as my information in regard to legal proceedings extends, this is the only court in any country where trial by jury exists, in which the decisions that are made in the haste and sometimes confusion of such trials, are not subject to review before any other tribunal. I believe that to the decisions of this court, in criminal cases, no review is allowed, except in the same court in the informal way in which I now ask your honor to review the decisions made on this trial. This is therefore the court of last resort, and I hope your honor will give to these, as they appear to me, grave questions, such careful and deliberate consideration as is due to them from such final tribunal. If a new trial shall be denied to the defendant, it will be no consolation to her to be dismissed with a slight penalty, leaving the stigma resting upon her name, of conviction for an offence, of which she claims to be, and I believe is, as innocent as the purest of the millions of male voters who voted at the same election, are innocent of crime in so voting. If she is in fact guilty of the crime with which she stands charged, and of which she has been convicted by the court, she deserves the utmost penalty which the court under the law has power to impose; if she is not guilty she should be acquitted, and not declared upon the records of this high court guilty of a crime she never committed. The court after hearing the district attorney, denied the motion. JUDGE HUNT--(Ordering the defendant to stand up), "Has the prisoner anything to say why sentence shall not be pronounced?" MISS ANTHONY--Yes, your honor, I have many things to say; for in your ordered verdict of guilty, you have trampled under foot every vital principle of our government. My natural rights, my civil rights, my political rights, my judicial rights, are all alike ignored. Robbed of the fundamental privilege of citizenship, I am degraded from the status of a citizen to that of a subject; and not only myself individually, but all of my sex, are, by your honor's verdict, doomed to political subjection under this, so-called, form of government. JUDGE HUNT--The Court cannot listen to a rehearsal of arguments the prisoner's counsel has already consumed three hours in presenting. MISS ANTHONY--May it please your honor, I am not arguing the question, but simply stating the reasons why sentence cannot, in justice, be pronounced against me. Your denial of my citizen's right to vote, is the denial of my right of consent as one of the governed, the denial of my right of representation as one of the taxed, the denial of my right to a trial by a jury of my peers, as an offender against law, therefore, the denial of my sacred rights to life, liberty, property and-- JUDGE HUNT--The Court cannot allow the prisoner to go on. MISS ANTHONY--But your honor will not deny me this one and only poor privilege of protest against this high-handed outrage upon my citizen's rights. May it please the Court to remember that since the day of my arrest last November, this is the first time that either myself or any person of my disfranchised class has been allowed a word of defense before judge or jury-- JUDGE HUNT--The prisoner must sit down--the Court cannot allow it. MISS ANTHONY--All of my prosecutors, from the 8th ward corner grocery politician, who entered the complaint, to the United States Marshal, Commissioner, District Attorney, District Judge, your honor on the bench, not one is my peer, but each and all are my political sovereigns; and had your honor submitted my case to the jury, as was clearly your duty, even then I should have had just cause of protest, for not one of those men was my peer; but, native or foreign born, white or black, rich or poor, educated or ignorant, awake or asleep, sober or drunk, each and every man of them was my political superior; hence, in no sense, my peer. Even, under such circumstances, a commoner of England, tried before a jury of Lords, would have far less cause to complain than should I, a woman, tried before a jury of men. Even my counsel, the Hon. Henry R. Selden, who has argued my cause so ably, so earnestly, so unanswerably before your honor, is my political sovereign. Precisely as no disfranchised person is entitled to sit upon a jury, and no woman is entitled to the franchise, so, none but a regularly admitted lawyer is allowed to practice in the courts, and no woman can gain admission to the bar--hence, jury, judge, counsel, must all be of the superior class. JUDGE HUNT--The Court must insist--the prisoner has been tried according to the established forms of law. MISS ANTHONY--Yes, your honor, but by forms of law all made by men, interpreted by men, administered by men, in favor of men, and against women; and hence, your honor's ordered verdict of guilty, against a United States citizen for the exercise of "_that citizen's right to vote_," simply because that citizen was a woman and not a man. But, yesterday, the same man made forms of law, declared it a crime punishable with $1,000 fine and six months' imprisonment, for you, or me, or any of us, to give a cup of cold water, a crust of bread, or a night's shelter to a panting fugitive as he was tracking his way to Canada. And every man or woman in whose veins coursed a drop of human sympathy violated that wicked law, reckless of consequences, and was justified in so doing. As then, the slaves who got their freedom must take it over, or under, or through the unjust forms of law, precisely so, now, must women, to get their right to a voice in this government, take it; and I have taken mine, and mean to take it at every possible opportunity. JUDGE HUNT--The Court orders the prisoner to sit down. It will not allow another word. MISS ANTHONY--When I was brought before your honor for trial, I hoped for a broad and liberal interpretation of the Constitution and its recent amendments, that should declare all United States citizens under its protecting ægis--that should declare equality of rights the national guarantee to all persons born or naturalized in the United States. But failing to get this justice--failing, even, to get a trial by a jury _not_ of my peers--I ask not leniency at your hands--but rather the full rigors of the law. JUDGE HUNT--The Court must insist-- (Here the prisoner sat down.) JUDGE HUNT--The prisoner will stand up. (Here Miss Anthony arose again.) The sentence of the Court is that you pay a fine of one hundred dollars and the costs of the prosecution. MISS ANTHONY--May it please your honor, I shall never pay a dollar of your unjust penalty. All the stock in trade I possess is a $10,000 debt, incurred by publishing my paper--_The Revolution_--four years ago, the sole object of which was to educate all women to do precisely as I have done, rebel against your man-made, unjust, unconstitutional forms of law, that tax, fine, imprison and hang women, while they deny them the right of representation in the government; and I shall work on with might and main to pay every dollar of that honest debt, but not a penny shall go to this unjust claim. And I shall earnestly and persistently continue to urge all women to the practical recognition of the old revolutionary maxim, that "Resistance to tyranny is obedience to God." JUDGE HUNT--Madam, the Court will not order you committed until the fine is paid. * * * INDICTMENT AGAINST BEVERLY W. JONES, EDWIN T. MARSH, AND WILLIAM B. HALL. * * * DISTRICT COURT OF THE UNITED STATES OF AMERICA, IN AND FOR THE NORTHERN DISTRICT OF NEW YORK. * * * At a stated Session of the District Court of the United States of America, held in and for the Northern District of New York, at the City Hall, in the city of Albany, in the said Northern District of New York, on the third Tuesday of January, in the year of our Lord one thousand eight hundred and seventy-three, before the Honorable Nathan H. Hall, Judge of the said Court, assigned to keep the peace of the said United States of America, in and for the said District, and also to hear and determine divers Felonies, Misdemeanors and other offences against the said United States of America, in the said District committed. Brace Millerd, James D. Wasson, Peter H. Bradt, James McGinty, Henry A. Davis, Loring W. Osborn, Thomas Whitbeck, John Mullen, Samuel C. Harris, Ralph Davis, Matthew Fanning, Abram Kimmey, Derrick B. Van Schoonhoven, Wilhelmus Van Natten, James Kenney, Adam Winne, James Goold, Samuel S. Fowler, Peter D.R. Johnson, Patrick Carroll, good and lawful men of the said District, then and there sworn and charged to inquire for the said United States of America, and for the body of said District, do, upon their oaths, present, that at the City of Rochester, in the County of Monroe, in the Northern District of New York, on the 15th day of October, A.D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall were then and there Inspectors of Elections in and for the first election District of the eighth ward of said City of Rochester, duly elected, appointed, qualified and acting as such Inspectors. And the Jurors aforesaid, upon their oaths aforesaid, do further present that on the day aforesaid, said Inspectors duly met at the place designated for holding a poll of an election to be had and held at and in said election District on the fifth day of November, A.D. 1872, for Representatives in the Congress of the United States, to-wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward then and there being a part of said Twenty-Ninth Congressional District of the State of New York, and for other officers, and at said place on said day did then and there duly organize themselves as a board for the purpose of Registering the names of the legal voters of such District, and did then and there proceed to make a list of all persons entitled to vote at said election in said District, said list to constitute and to be known as the Registry of electors of said District. And said Board of Inspectors again duly met on the Friday of the week preceding the day of said election, to-wit, on the first day of November, A.D. 1872, at the place designated for holding the poll of said election in and for said first election District, for the purpose of receiving and correcting said list, and for that purpose duly met at eight o'clock in the morning of the day aforesaid, at the place aforesaid, and remained in session until nine o'clock in the evening of that day; and for the purpose aforesaid, said Board of Inspectors again duly met at the place aforesaid, at eight o'clock in the morning of the day following, to-wit, the second day of November, A.D. 1872, and remained in session until nine o'clock in the evening of that day. And the Jurors aforesaid, upon their oaths aforesaid, do further present that on the said second day of November, A.D. 1872, at the City of Rochester, in the County of Monroe, in the Northern District of New York, and within the jurisdiction of this Court, to-wit, at the place designated for holding the poll of said election for said Representatives in the Congress of the United States, and other officers in and for said first election District of said eighth ward as aforesaid, and between the hours of eight o'clock in the morning, and nine o'clock in the evening of said second day of November, A.D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall, being then and there Inspectors of Elections in and for said first election District of said eighth ward of said City of Rochester, duly elected, appointed, qualified and acting as such, and having then and there duly met for the purpose of revising and correcting said list of all persons entitled to vote at said election as aforesaid, known as the registry of electors for said election district, they, said Beverly W. Jones, Edwin T. Marsh and William B. Hall, _did then and, there knowingly and wilfully register as a voter of said District, one Susan B. Anthony, she, said Susan B. Anthony then and there not being entitled to be registered as a voter of said District in that she, said Susan B. Anthony was then and there a person of the female sex, contrary to the form, of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity_. _Second Count_: And the Jurors aforesaid, upon their oaths aforesaid, do further present that at the City of Rochester, in the County of Monroe, in the Northern District of New York, on the fifteenth day of October, A.D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall, were then and there Inspectors of Elections in and for the first election District of the eight ward of said City of Rochester, duly elected, appointed, qualified and acting as such. And the Jurors aforesaid, upon their oaths aforesaid, do further present that on the day aforesaid, said Inspectors duly met at the place designated for the holding of the poll of an election to be had and held at and in said election District on the fifth day of November, A.D. 1872, for Representatives in the Congress of the United States, to-wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said first election district of said eighth ward then and there being a part of said Twenty-Ninth Congressional District of the State of New York, and for other officers, and at said place on said day, did then and there duly organize themselves as a Board for the purpose of Registering the names of the legal voters of said District, and did then and there proceed to make a list of all persons entitled to vote at said election in said District, said list to constitute and to be known as the registry of electors of said District. And said Board of Inspectors again duly met on the Friday of the week preceding the day of said election, to-wit, on the first day of November, A.D. 1872, at the place designated for holding the poll of said election in and for said first Election District, for the purpose of revising and correcting said list, and for that purpose duly met at eight o'clock in the morning of the day aforesaid, at the place aforesaid, and remained in session until nine o'clock in the evening of that day; and for the purpose aforesaid, said Board of Inspectors again duly met at the place aforesaid, at eight o'clock in the morning of the day following, to-wit, the second day of November, A.D. 1872, and remained in session until nine o'clock in the evening of that day. And the Jurors aforesaid, upon their oaths aforesaid, do further present, that on the said first day of November, A.D. 1872, at the City of Rochester, in the County of Monroe, in the Northern District of New York, and within the jurisdiction of this Court, to-wit, at the place designated for holding the poll of said election for said Representatives in the Congress of the United States, and other officers in and for said first election District of said eighth ward of said City of Rochester, and between the hours of eight o'clock in the morning, and nine o'clock in the evening of said first day of November, A.D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall being then and there Inspectors of Elections in and for said first election District of said eighth ward of said City of Rochester, duly elected, appointed, qualified and acting as such as aforesaid, and having then and there duly met for the purpose of revising and correcting said list of all persons entitled to vote at said election as aforesaid, known as the Registry of electors for said election District, they, said Beverly W. Jones, Edwin T. Marsh and William B. Hall, _did then and there knowingly and wilfully register as voters of said District, certain persons, to-wit_: Susan B. Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Anna L. Moshier, Nancy M. Chapman, Lottie B. Anthony, Susan M. Hough, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, and Jane Cogswell, said persons then and there not being entitled to be Registered as voters of said District, in that each of said persons was then and there a person of the female sex, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity. _Third Count_: And the Jurors aforesaid, upon their oaths aforesaid, do further present that Beverly W. Jones, Edwin T. Marsh and William D. Hall, of the City of Rochester, in the County of Monroe, with force and arms, &c., to-wit, at and in the first election District of the eighth ward of said City of Rochester, in the County of Monroe, in the Northern District of New York, and within the jurisdiction of this Court, heretofore, to-wit, on the fifth day of November, A.D. 1872, at an election duly held at and in the said first election District of the said eighth ward of said City of Rochester, in said County, and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to-wit, a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward of said City of Rochester being then and there a part of said Twenty-Ninth Congressional District of the State of New York, and said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, being then and there Inspectors of Elections in and for said first election District of said eighth ward of said City of Rochester, in said County of Monroe, duly elected, appointed, and qualified and acting as such, they, said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, as such Inspectors of Elections, did then and there, to-wit, on the fifth day of November, A.D. 1872, at the first election District of the eighth ward of the City of Rochester, in the County of Monroe, in the Northern District of New York, and within the jurisdiction of this Court, knowingly and wilfully receive the votes of certain persons, and not then and there entitled to vote, to-wit: Susan B. Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Hannah L. Mosher, Nancy M. Chapman, Susan M. Hough, Guelma S. McLean, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, and Jane Cogswell, each of said persons then and there being a person of the female sex, and then and there not entitled to vote, as they, said Beverly W. Jones, Edwin T. Marsh and William B. Hall then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity. _Fourth Count_: And the Jurors aforesaid, upon their oaths aforesaid, do further present, that Beverly W. Jones, Edwin T. Marsh and William B. Hall, now, or late of Rochester, in the County of Monroe, with force and arms, &c., to-wit, at and in the first election District of the eighth ward of the City of Rochester, in the County of Monroe, in said Northern District of New York, and within the jurisdiction of this Court heretofore, to wit, on the fifth day of November, A.D. 1872, at an election duly held at and in the said first election District of said eighth ward of said City of Rochester, in said County of Monroe, in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to-wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward being then and there a part of said Twenty-Ninth Congressional District, and they, said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, being then and there Inspectors of Elections in and for said first election District of said eighth ward of said City of Rochester, in said County of Monroe, duly appointed, elected, qualified and acting as such, they said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, did then and there, to-wit, at said first election District of said eighth ward of said City of Rochester, in said County of Monroe, in said Northern District of New York, on said fifth day of November, A.D. 1872, knowingly and wilfully receive the votes of certain persons for candidate for Representative in the Congress of the United States for the State of New York at large, and candidate for Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said persons then and there not being entitled to vote for said Representatives in the Congress of the United States, viz.: Susan B. Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Hannah L. Mosher, Nancy M. Chapman, Lottie B. Anthony, Susan M. Hough, Guelma L. McLean, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo and Jane Cogswell, each of said persons then and there being a person of the female sex, and then and there not entitled to vote for said Representatives in Congress, as they, said Beverly W. Jones, Edwin T. Marsh and William B. Hall, then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, against the peace of the United States of America and their dignity. RICHARD CROWLEY, Attorney of the United States, in and for the Northern District of New York. (Endorsed.) January 22, 1873. Jones and Marsh plead not guilty. RICHARD CROWLEY, U.S. Attorney. Hall did not plead at all. * * * UNITED STATES CIRCUIT COURT. * * * NORTHERN DISTRICT OF NEW YORK. * * * THE UNITED STATES OF AMERICA. _vs._ BEVERLY W. JONES, EDWIN T. MARSH, AND WILLIAM B. HALL. * * * HON. WARD HUNT, Presiding. * * * APPEARANCES. For the United States: HON. RICHARD CROWLEY, U.S. District Attorney. For the Defendants: JOHN VAN VOORHIS, ESQ. * * * Tried at Canandaigua, Wednesday, June 18th, 1873, before Hon. Ward Hunt and a Jury. Case opened in behalf of the U.S. by Mr. Crowley. MR. VAN VOORHIS: I wish to raise some questions upon the indictment in this case. This indictment, I claim, is bad for two reasons, and should be quashed. First--The Act of Congress under which it is framed, is invalid so far as it relates to this offence, because not authorized by the Constitution of the United States. Second--There is no sufficient statement of any offence in the indictment. First. Congress has no power to pass laws for the punishment of Inspectors of Elections, elected or appointed under the laws of the State of New York, for receiving illegal votes, or registering as voters, persons who have no right to be registered. No law of Congress defines the qualifications of voters in the several States. These are found only in the State Constitutions and Statutes. The offenses charged in the indictment are, that the defendants, being State officers, have violated the laws of the State. If it be so, they may be tried and punished in accordance with the State laws. No proposition can be clearer. If the United States can also punish them for the same offense, it follows that they may be twice indicted, tried, convicted and punished for one offense. A plea in a State Court, of a conviction and sentence, in a United States Court would constitute no bar or defense, (_12 Metcalf_, _387_, _Commonwealth v. Peters_,) and the defendants might be punished twice for the same offense. This cannot be, and if the act in question be valid, the State of New York is ousted of jurisdiction. And where does Congress derive the power to pass laws to punish offenders against the laws of a State? This case must be tried under the laws of the United States. Against those laws, no offense is charged to have been committed. Such power, if it exist, must be somewhere expressly granted, or it must be necessary in order to execute some power that is expressly granted. The Act of Congress in question, became a law on May 31st, 1870. It is entitled-- "AN ACT TO ENFORCE THE RIGHT OF CITIZENS OF THE UNITED STATES TO VOTE IN THE SEVERAL STATES, AND FOR OTHER PURPOSE." The indictment is found under the 19th section of the Act as it passed originally, and the 20th section as amended by the Act of February 28th, 1871. The 19th Section, so far as it is necessary to quote it here, is as follows: "_That if at any election for representatives or delegates in the Congress of the United States any person shall knowingly_ personate and vote, or attempt to vote, in the name of any other person, whether living or dead, or fictitious; or vote more than once at the same election for any candidate for the same office; or vote at a place where he may not be entitled to vote; _or vote without having a lawful right to vote, ... or knowingly and wilfully receives the vote of any person not entitled to vote_, or refuses to receive the vote of any person entitled to vote; ... every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any Court of the United States of competent jurisdiction, and on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for a term not exceeding three years, or both, in the discretion of the Court, and shall pay the costs of prosecution." Section 20, as amended, so far as pertinent, reads as follows: "That if at any registration of voters for an election for representatives or delegates in the Congress of the United States, any person shall _knowingly_ ... hinder any person having a lawful right to register, from duly exercising that right; or compel or induce by any of such means, or other unlawful means, ANY OFFICER OF REGISTRATION to admit to registration any person not legally entitled thereto; ... _or if any such officer shall knowingly and wilfully register as a voter any person not entitled to be registered_, or refuse so to register any person entitled to be registered, ... _every such person shall be deemed guilty of a crime, and shall be liable to prosecution and punishment therefor, as provided in section 19 of said Act of May 31, 1870, for persons guilty of the crimes therein specified_." No law of Congress describes the qualifications of voters in this State, or in any State. Congress has provided no registry law. Therefore, what constitutes the offenses charged in this indictment, must be looked for in the laws of the State. By no Act of Congress can it be determined in what case a person votes, "_without having a right to vote_." By no Act of Congress can it be determined when an Inspector of Election has received the vote of "_any person not entitled to vote_," or has registered "_as a voter, any person not entitled to be registered_." These are the offenses alleged in this indictment. They are penal offenses by the Statutes of New York. The jurisdiction of the State Courts over them is complete, and cannot be questioned. By the Act of May 31, 1870, above cited, Congress has ordained, in legal effect, that if any person violates the penal Code of the State of New York, or any State, in respect of voting, he may be punished by the United States. And the offense is a variable quantity; what is a crime in one State under this Act, is a legal right and duty in another. A citizen of Rhode Island, for instance, who votes when not possessed in his own right, of an estate in fee simple--in fee tail, for life, or in reversion or remainder, of the value of $134 or up-wards, may be convicted of a crime under this Act, and imprisoned in a State Prison. He voted in violation of the laws of his State. A citizen of New York votes under precisely similar circumstances, and with the same qualifications, and his act is a legal one, and he performs a simple duty. Any State may, by its Constitution and laws, permit women to vote. Had these defendants been acting as Inspectors of Elections in such State, their act would be no crime, and this indictment could not be sustained, for the only illegality alleged is, that the citizens whose votes were received were women, and therefore not entitled to vote. The Act of Congress thus, is simply an Act to enforce the diverse penal statutes of the various States in relation to voting. In order to make a case, the United States must combine the federal law with the statutes of the State where the _venue_ of the prosecution is laid. Before the enactment of the 13th, 14th and 15th Amendments, it is not, and never was pretended, that Congress possessed any such power. Subdivision 1 of Section 2, of Article one of the Constitution, provides as follows: "The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." By this provision, what shall qualify a person to be an elector, is left entirely to the States. Whoever, in any State, is permitted to vote for members of the most numerous branch of its legislature, is also competent to vote for Representatives in Congress. The State might require a property qualification, or it might dispense with it. It might permit negroes to vote, or it might exclude them. It might permit women to vote, or even foreigners, and the federal constitution would not be infringed. If a State had provided a different qualification for an elector of Representatives in Congress, from that required of an elector of the most numerous branch of its Legislature, the power of the federal constitution might be invoked, and the law annuled. But never was the idea entertained, that this provision of the Constitution authorizes Congress to pass laws for the punishment of individuals in the States for illegal voting, or State returning officers for receiving illegal votes. This power, if it exist, must be found in the recent Amendments to the U.S. Constitution. I assume that your Honor will hold, as you did yesterday in Miss Anthony's case, that these amendments do not confer the right to vote upon citizens of the United States, and therefore not upon women. That decision is the law of this case. It follows necessarily from that decision, that these amendments have nothing to do with the right of voting, except so far as that right "_is denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude_." The thirteenth article of the Amendments to the Constitution of the United States, in Section 1, ordains that "_neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction_." Section 2, ordains that "_Congress shall have power to enforce this Article by appropriate legislation_." The fourteenth article of the Amendments to the Constitution of the United States, ordains in Section 1, "_All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State where they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws._" Section five enacts, "_The Congress shall have power to enforce by appropriate legislation, the provisions of this Article._" The fifteenth article of Amendment to the Constitution ordains in its first section, that "That the right of citizens of the United States to vote, shall not be denied or abridged by the United States or by any State, on account of race, color or previous condition of servitude." Section two enacts, that "_The Congress shall have power to enforce this Article by appropriate legislation._" These are the provisions of the Constitution relied on to support the legislation of Congress now before this Court. Some features of that legislation may be constitutional and valid. Whether this be so or not, it is not necessary now to determine. The question here is, has Congress, by either of these amendments, been clothed with the power, to pass laws to punish inspectors of elections in this State for receiving the votes of women? The thirteenth amendment simply abolishes slavery, and authorizes such legislation as shall be necessary to make that enactment effectual. The power in question is not found there. The fourteenth amendment defines who are citizens of the United States, and prohibits the States from making or enforcing "_any law which shall abridge the privileges or immunities_" of such citizens. Either the right to vote is one of the "_privileges or immunities_" of the United States citizen, which the states are forbidden to abridge, or it is not. If it is, then the women whose votes these defendants received, being citizens of the United States, and in every other way qualified to vote, possessed the right to vote, and their votes were rightfully received. If it is not, then the fourteenth amendment confers no power upon Congress, to legislate, on the subject of voting in the States. There is no other clause or provision of that amendment which can by any possibility confer such power--a power which cannot be implied, but which, if it exist, must be expressly given in some part of the Constitution, or clearly needed to carry into effect some power that is expressly given. No such power is conferred by the fifteenth amendment. That amendment operates upon the States and upon the United States, and not upon the citizen. "The right of citizens of the United States to vote, shall not be denied or abridged by 'THE UNITED STATES OR BY ANY STATE.'" The terms "_United States_" and "State," as here used, mean the government of the United States and of the States. They do not apply to individuals or to offenses committed by individuals, but only to acts done by the State or the United States. But at any rate, the operation of this amendment, and the power given to Congress to enforce it, is limited to offenses committed in respect of depriving persons of the right to vote because of their "_race, color, or previous condition of servitude_." This is not such a case. There is no ground for saying that these defendants have committed any offense against the spirit or the letter of the fifteenth amendment, or any legitimate legislation for its enforcement. Congress cannot make laws to regulate the duties of Inspectors, and it cannot inflict a penalty. Second. _No offense is stated in the indictment._ The first count in the indictment is for knowingly and wilfully registering as a voter, Susan B. Anthony. This count is under Section 26 of the Act of May 31, 1870, as amended by the Act of February 28, 1871. The indictment contains no averment that the defendants were "_officers of registration_," and charged with the duty of making a correct registry of voters. It simply alleges that they were _Inspectors of Elections_. What that means, the indictment does not inform us. It is not an office defined by the Acts of Congress upon which this indictment was found, nor has the Court any information of which it can take notice as to what are the duties of such officers. In the absence of any claim in the indictment to that effect, the Court will not presume the existence of so important a circumstance against the defendants, and therefore this count of the indictment must fail. 2. The second count is for the same offense, and obnoxious to the same objection. The only variation being that the first count charges the illegal registry of one woman, and the second, fourteen. 3. The third count charges that the defendants, being inspectors of elections, received the votes of fourteen women who had no right to vote, wrongfully. This count does not allege that it was the duty of the defendants to receive or count the votes. It simply alleges that they were Inspectors of Election. Their duties as such are not stated. It is not alleged that as such inspectors they were charged with the duty of receiving and counting votes. It is not claimed by the indictment that these votes were counted or put into the ballot box--or affected the result. The defendants simply received the votes. What they did with them, does not appear. Any bystander, who had received these votes, could be convicted under this indictment as well as they. WILLIAM F. MORRISON, a witness called in behalf of the United States, testified as follows: _Examined_ by Mr. Crowley: Q. Where did you live, in November, 1872? A. City of Rochester. Q. Where do you live now? A. Same place. Q. Did you occupy any official position in the month of November, 1872? A. I did. Q. And do you now? A. Yes, sir. Q. What is it? A. City Clerk. Q. Have you any registration lists and poll lists of the 1st Election District, 8th Ward, City of Rochester, in your possession? A. I have. Q. Will you produce them? [Witness produces two books.] Q. Do you know the defendants, Beverly W. Jones, Edwin T. Marsh, and Wm. B. Hall, or any of them? A. I know them all. Q. Do you know their hand-writing? A. I cannot say that I do. Q. What are those books you hold in your hand? A. The register of the Board of Registry, and the poll list kept on election day. Q. In what district? A. 1st election district of the 8th Ward. Q. By whom were those books left in your office, if by any one? A. To the best of my knowledge, they were left by Beverly W. Jones, Chairman of the Board of Inspectors. Q. By whom do they purport to be signed? A. Beverly W. Jones, Wm. B. Hall, and Edwin T. Marsh. Q. Is there a certificate attached to them, purporting to show what they are? A. There is a certificate attached to the register, but not to the poll list. Q. Please read the certificate attached to the registration list. A. "We, the undersigned, composing the Board of Registry for the first district, 8th Ward, City of Rochester, do certify that the foregoing is a correct list of the voters in said district, so far as the same is known to us. Dated Nov. 2d, 1872." Q. In what Congressional District was the first election district of the 8th Ward, in November, 1872? A. 29th. Q. Was there an election for Members of Congress for that district, and for Members of Congress at Large for the State, held in that ward and election district, last November? A. Yes, sir. Q. And candidates voted for both of those officers by those who saw fit to vote for them? A. Yes, sir. Q. What day was the election? A. 5th day of November. MR. CROWLEY: We offer the poll list and the registration of voters in evidence. [Poll list marked Ex. "A." Registration list, marked Ex. "B."] [This witness was not cross-examined.] SYLVESTER LEWIS, a witness sworn in behalf of the United States, testified as follows: _Examined by_ MR. CROWLEY: Q. Where did you live in November, 1872? A. In the city of Rochester. Q. Do you know the defendants, Jones, Marsh and Hall? A. I do. Q. Do you know whether or not they acted as a Board of Registry for the registration of voters in the first election district, 8th ward, City of Rochester, preceding the last general election? A. I know they acted at the November election. Q. Did they act as a Board of Registry preceding the election? A. Yes, sir. Q. Was you present on any day when they were registering voters? A. I was present on Friday mostly, and on Saturday. Q. Were all three of these defendants there? A. They were the most of the time. Q. Receiving the names of persons who claimed to be entitled to vote? A. Yes, sir. Q. And taking a registration list? A. Yes, sir. Q. Did you see Miss Anthony and other ladies there upon that day? A. I saw Miss Anthony there on the first day, and other ladies. Q. Did you see there, upon that day, the following named persons: Susan B. Anthony, Sarah Truesdell, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Ann S. Mosher, Nancy M. Chapman, Lottie B. Anthony, Susan M. Hough, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, Jane Cogswell. A. I saw a number of them; I didn't see the whole of them. Q. Do you know by sight, any of those persons whose names I have read? A. I know a number of them. Q. Did you see a number of them there? A. I did. Q. Did you see any of them register on that day? A. I did. Q. Have you a list of those that you saw register? A. I have, (producing a paper.) Q. Please state to the Jury, those that you saw register on that day. A. I can hardly recollect which day they registered. Q. Either of the days preceding the election, when this Board was in session. A. Rhoda DeGarmo, Mary Anthony, Sarah C. Truesdell, Susan M. Hough, Mrs. M.E. Pulver. By MR. VAN VOORHIS: Q. What paper are you reading from? A. From a memorandum I made at the time--No, it is a paper that was given on the last day of registry. Q. A paper that you made yourself? A. The names that I took. Q. On the last day of registry? A. Yes, sir. By MR. CROWLEY: Q. State them. A. The names of the parties that I found on the poll list as having registered; I didn't see them all register myself, but I did a good portion of them. Q. I am asking you to state who you saw register. I don't ask you who were registered before your attention was called to the list. A. Well, I saw Rhoda DeGarmo register; Miss Mary Anthony, Sarah C. Truesdell, Susan M. Hough; I think I saw Nancy M. Chatfield register; Mrs. Margaret Leyden, Mrs. M.E. Pulver; those I recollect; I was better acquainted with those than with the others. Q. At the time you saw these ladies register, were the three inspectors, Hall, Jones, and Marsh present? A. Some of the time I saw all three, I think, there; at other times I saw but two of them; sometimes Hall and Jones, sometimes Marsh and Jones, sometimes Hall and Marsh; I think they took turns when they went to dinner. Q. On the day of election were you at the polls? A. I was. Q. Did you see any of these women vote on the day of election? A. I did. Q. Were these defendants present when their votes were received? A. They were. Q. And did they receive their votes? A. They did. Q. Who did you see vote, or offer their votes upon the day of election? A. Susan B. Anthony, Mrs. McLean, Rhoda DeGarmo, Mary Anthony, Ellen S. Baker, Sarah C. Truesdell, Mrs. Hough, Mrs. Mosher, Mrs. Leyden, Mrs. Pulver. I recollect seeing those ladies; in fact, I think I saw the whole of them vote with the exception of two, but I will not be positive on that point. Q. But you saw those whose names you have given? A. Yes, sir. Q. Do you know how many tickets they voted, or offered to the inspectors? A. I think they voted four tickets. Q. Do you know how these tickets were endorsed, or what they were called? A. I was not near enough to see the endorsement; I noticed which boxes they went into. Q. Upon the day of election were the defendants Jones, Marsh, and Hall, acting as inspectors of election? A. Yes, sir. Q. Receiving votes? A. Yes, sir. Q. And were acting as inspectors of election when these ladies voted? A. Yes, sir. Q. About what time in the day, or what time in the morning was it that these ladies voted? A. I think there had been but a very few votes received in the morning when a number of them voted. Q. Well, was it about 5 o'clock in the morning--very early? A. No, sir; not so early as that; the probability is that there was not over 20 or 25 votes received before they presented theirs. _Conceded_: That the women named in the indictment were women on the 5th day of November, 1872. _Cross-Examination by_ MR. VAN VOORHIS: Q. Which of those persons did you see register? A. Mrs. Hough, Mrs. Pulver, Mrs. Truesdell, Mrs. Leyden. Q. Do you swear you saw Mrs. Leyden register? A. I think I did. Q. Take a second thought and see if you are willing to say you saw her register--please look off that paper. Do you recollect seeing those persons register, or do you suppose they did, because you find it on a paper there? A. No, sir; I recollect seeing pretty much all of them on my list with the exception of one or two; I won't be fully positive I saw Mrs. Leyden register; I saw her vote. Q. Did you go to Mrs. Leyden's house and advise her to go and register? A. I don't think I did. THE COURT: That is not important. Q. Do you recollect seeing any others register except those you have now mentioned? A. I think I saw Mary Anthony. Q. Any other? A. Mrs. Chapman. Q. Can you recollect this without looking at that paper? A. Well, the object in looking at that paper is to try to refresh my memory on which day they registered. Q. Does that paper contain dates? A. No, sir; it contains the names of all those who registered. Q. You copied that paper from the registry, didn't you? A. They were copied by Hall at the time of the election, and handed to me. Q. What was your business at the registry at that time? A. I had a poll list; I was checking parties that I supposed had a legal right to vote. Q. What sort of a poll list? Objected to as immaterial. THE COURT: It is only competent as a test of his knowledge. A. I had canvassed the ward and taken a list of all the voters in the first district; all those that I supposed would be entitled to vote. Q. You had canvassed the ward in the employment of somebody? Objected to as immaterial. Q. How many of these people did you see vote? A. I think I saw the whole of them vote, with the exception of Mrs. Hough and Mrs. Cogswell. Q. Who took Miss Anthony's vote? A. Mr. Jones. Q. Were both the other inspectors present when he took it? A. I believe they were. Q. Did Jones take all of the votes of those persons whose names you have on your list? A. I don't think he did. Q. Who took any others that you saw? A. I saw Mr. Hall take some of the ballots. Q. How many? A. I couldn't tell how many. Q. Did you see him take more than one? A. I don't know as I did. Q. Do you know whose it was? A. If I recollect right, it was Mrs. DeGarmo's. Q. At that time was Jones there? A. No, I believe Jones had stepped out. Q. Hall received the vote on account of Jones being absent? A. I believe so. Q. Jones' position was at the window receiving votes? A. Yes, sir. Q. Who put them in the boxes? A. Jones and Hall. Q. You were not near enough to see what these ballots were? A. No, sir. Q. How many ballot boxes were there? A. Six, if I recollect right. Q. And six tickets voted at that poll? A. Six tickets altogether; there was the Constitutional Amendment voted at that election. Q. Did you observe which boxes the tickets of these persons were put into? A. I did. Q. Which were they? A. I think that the ballots that these ladies voted. Q. I don't want what you think; I want what you know. A. Well, they went into those boxes; Member of Congress, Member at Large. Q. Were there two boxes for Congressmen? A. I think there was; I am not quite positive; I rather think I am mistaken about that. Q. Well, give us what you know about the boxes? A. The most that I know about is, that the remark was made by the inspector that they voted the four tickets. Q. You heard the remark made that they voted four tickets; who made that remark? A. Mr. Jones or Mr. Hall; when they passed their ballots they would say, "They vote all four tickets; no Constitutional Amendment voted." Q. That was the practice of the inspector, no matter who voted? A. Yes, sir. Q. Then you didn't see the tickets as they went into the boxes? A. No, sir. Q. You can't swear which boxes they went into? A. I understood from the inspectors that they voted all the tickets with the exception of the Constitutional Amendment. Q. I don't ask for any conversation; I ask for what you know by what you saw. A. Well, I wasn't near enough to read the tickets. Q. Did you hear either of the inspectors say anything about it? A. I did. Q. Which one? A. I heard the inspector that would be at the window where the ballots would be received. Q. Name him. A. I heard Mr. Jones say that they voted the four tickets. Q. Was that all he said? A. Well, he would declare it in this way; sometimes he would say, "They vote all the tickets with the exception of the Amendment;" that is the way he generally declared it. Q. I want to get at what he said when these votes were taken? A. He didn't at all times declare the ticket voted. Q. Are you willing to testify that you recollect distinctly, anything that was said by either of the inspectors when these ladies voted? A. Most decidedly; I heard Jones say that they voted the Congressional ticket; I heard him say that they voted all the tickets. Q. At the time they voted? A. The question would be asked what tickets they voted, and he would say, "All the tickets with the exception of the Amendment." Q. Did he mention the Congressional ticket? A. I think he did. Q. Do you recollect that he did? A. My impression is that he said so; I can't say positively. Q. Did you say anything there, about getting twenty women to vote? Objected to as immaterial. MR. VAN VOORHIS: I propose to show that this witness said to parties there that he would go and get twenty Irish women to vote, to offset these votes. Objected to as immaterial. Objection sustained. WILLIAM F. MORRISON recalled. _Examined by_ MR. CROWLEY: Q. Please point out the following names, if you find them in the registration list: Susan B. Anthony? A. I find it. Q. Sarah Truesdell? A. Sarah C. Truesdell. Q. Mary Pulver? A. M.P. Pulver. Q. Mary Anthony? A. I find it. Q. Ellen S. Baker? A. Yes, sir; I have it. Q. Margaret Leyden? A. Margaret L. Leyden. Q. Ann S. Mosher? A. Hannah L. Mosher. Q. Nancy M. Chapman? A. Nancy M. Chapman. Q. Lottie B. Anthony? A. Lottie B. Anthony. Q. Susan M. Hough? A. Susan M. Hough. Q. Hannah Chatfield? A. Hannah Chatfield. Q. Mary S. Hibbard? A. Mary S. Hibbard. Q. Rhoda DeGarmo? A. I don't find any such name; I find Robert DeGarmo and Elias DeGarmo. Q. Jane Cogswell? A. Jane Cogswell. Q. Now turn to the names of voters contained in the list copied upon election day; do you find the name of Susan B. Anthony upon that list? A. I do. Q. Sarah Truesdell? A. Yes, sir. Q. Mary Pulver? A. Yes, sir. Q. Mary Anthony? A. Yes, sir. Q. Mary S. Baker? A. Yes, sir. Q. Margaret Leyden? A. Yes, sir. Q. Ann S. Mosher? A. Hannah L. Mosher. Q. Nancy Chapman? A. Yes, sir. Q. Lottie B. Anthony? A. Yes, sir. Q. Susan M. Hough? A. Yes, sir. Q. Hannah Chatfield? A. Yes, sir. Q. Mary S. Hibbard? A. Yes, sir. Q. Rhoda DeGarmo? A. I find Mrs. Rosa DeGarmo. Q. Jane Cogswell? A. Yes, sir. Q. Upon the list copied by the inspectors upon the day of election, is there any heading purporting to show what tickets these people voted? A. Yes, sir. Q. Please state from the heading what tickets it purports to show they voted? A. The first column is Electoral; the second, State; the third, Congress; the fourth, Assembly; the fifth, Constitutional Amendment. Q. Please look and see which of those tickets the list purports to show that they voted? MR. VAN VOORHIS: I object to any marks upon that book which the witness didn't make, as any evidence that these persons voted for members of Congress. By THE COURT: Q. What is the statement there? A. After the name of Miss Susan B. Anthony in the column of electors there is a small, straight mark. MR. VAN VOORHIS: I object to that, as not evidence of what these votes were. THE COURT: I think it is competent. By MR. CROWLEY: Q. State, Mr. Morrison? A. Opposite each of the names that I have read there are checks, showing that they voted Electoral, State, Congressional and Assembly tickets--four tickets. Q. There are a large number of the inspectors' books of the last election filed with you as City Clerk, are there not? A. Yes, sir. Q. Do you know what the custom or habit is of copying these books when people vote? Objected to. Q. What custom the inspectors have of indicating what tickets a person votes when he offers his vote? Objected to. Question withdrawn. _Cross-Examination by_ MR. VAN VOORHIS. Q. All you know about these tickets or that book, is what appears on the face of it, is it not? A. Yes, sir; that is all. Q. You don't know who made those straight marks? A. I don't. Q. Or why they were made, so far as you have any knowledge? A. No, sir. Q. Do you know what those letters are? [Pointing on the book.] A. Preliminary oath and general oath, I should say. Q. You would say that to each of these persons the preliminary oath was administered, and also the general oath? A. Yes, sir; it so shows here. MRS. MARGARET LEYDEN, a witness called in behalf of the United States, having been duly affirmed, testified as follows: _Examined by_ MR. CROWLEY: Q. Did you reside in the City of Rochester in the month of November, 1872? A. Yes, sir. Q. Did you reside in the 8th ward? A. I did. Q. In the first election district of that ward? A. I did. Q. Was your name registered before the election which took place on the 5th of November, 1872? A. It was. Q. By whom? A. I think Mr. Jones; in fact, all three of the inspectors were there. Q. Did you, upon the 5th day of November, vote? A. I did. Q. Who received your vote? A. Mr. Jones. Q. Were the other inspectors there at the time? A. Yes, sir. Q. Did you vote for a candidate for Congress? A. I did. _Cross-Examination by_ MR. VAN VOORHIS: Q. Was Mr. Lewis there when you registered? A. Mr. Lewis was not there. Q. Do you recollect who took your vote? A. I think Mr. Jones took it; I know he did. Q. Was your ballot folded up? A. It was. Q. Could any person read it, or see what you voted, or who you voted for? A. No one but my husband. Q. He saw it before you voted? A. Yes, sir. Q. Was your husband present when you voted? Objected to as immaterial. A. He was. Q. No one had seen your ballot except your husband before you handed it in? A. No, sir. Q. And when you handed it in it was folded, so that no one could see it? A. It was. THE COURT: What is the object of this? MR. VAN VOORHIS: The District Attorney inquired if she voted a certain ticket, and assumes to charge these inspectors with knowing what she voted. It is to show that the ticket being folded, the inspector could not see what was in it. Q. In voting, did you believe that you had a right to vote, and vote in good faith? Objected to as immaterial. Objection sustained. _Re-Direct Examination by_ MR. CROWLEY: Q. You have heard me name the different persons, have you not, when I asked Mr. Morrison questions? A. Yes, sir. Q. Were these people, or any of them, present, and were they registered at the same time you were? A. Some of them were present. Q. Who? A. Mrs. Lottie B. Anthony; there was one lady that registered who didn't vote; I think Mrs. Anthony was the only lady that was present that voted; I can't recollect any more names. Q. Who of these ladies were present when you voted and voted with you, if any? A. Miss Susan B. Anthony, Mrs. Pulver, Mrs. Mosher, Mrs. Lottie B. Anthony, Miss Mary Anthony, Miss Baker, Mrs. Chapman. Q. Did they all vote on that occasion? A. They did. _Re-Cross Examination by_ MR. VAN VOORHIS. Q. Mrs. Lottie B. Anthony is the wife of Alderman Anthony? A. Yes, sir. _United States rests._ Case opened in behalf of the defendants by MR. VAN VOORHIS. BEVERLY W. JONES, one of the defendants, having been duly sworn as a witness in his own behalf, testified as follows: _Examined by_ MR. VAN VOORHIS. Q. Mr. Jones, where do you reside? A. Eighth ward, city of Rochester. Q. What is your age? A. Twenty-five last spring. Q. Are you one of the defendants in this indictment? A. Yes, sir. Q. Were you inspector of election in the 8th ward? A. Yes, sir. Q. Which district? A. First district. Q. Were you elected or appointed? A. Elected. Q. By the people of the ward? A. Yes, sir. Q. Were you present at the Board of Registry when Miss Anthony and others appeared there and demanded to be registered? A. I was. Q. Won't you state what occurred there? A. Miss Anthony and two other ladies came into the room; Miss Anthony asked if this was the place where they registered the names of voters; I told her it was; she said she would like to have her name registered; I told her I didn't think we could register her name; it was contrary to the Constitution of the State of New York; she said she didn't claim any rights under the Constitution of the State of New York; she claimed her rights under the Constitution of the United States; under an amendment to the Constitution; she asked me if I was conversant with the 14th amendment; I told her I had read it and heard of it several times. Q. Before you go further, state who was present at that time? A. William B. Hall and myself were the only inspectors; Mr. Marsh was not there; Daniel J. Warner, the United States Supervisor, Silas J. Wagner, another United States Supervisor, and a United States Marshal. Q. State which one of these was Republican, and which one Democratic. A. Silas J. Wagner, Republican; Daniel J. Warner, Democratic. Q. Now go on. A. She read the 14th amendment to the Constitution of the United States; while she was reading the amendment and discussing different points, Mr. Daniel J. Warner said-- MR. CROWLEY: I submit to the Court that it is entirely immaterial what either Warner or Wagner said. THE COURT: I don't see that that is competent in any view of the case. Q. (By the Court). Was your objection to registering Miss Anthony on the ground that she was a woman? A. I said it was contrary to the Constitution of the State of New York, and I didn't think that we could register her. Q. (By the Court.) On what ground was that? A. Well, on the ground that she was a woman. By MR. VAN VOORHIS: Q. You may proceed and state what occurred there? A. Mr. Warner said-- Objected to. THE COURT: I don't think that is competent, what Warner said: MR. VAN VOORHIS: The district attorney has gone into what occurred at that time, and I ask to be permitted to show _all_ that occurred at the time of the registry; this offense was committed there; it is a part of the _Res Gesta_; all that occurred at the moment Miss Anthony presented herself and had her name put upon the registry. THE COURT: I don't think that is competent. MR. VAN VOORHIS: I ask to show what occurred at the time of registry. THE COURT: I don't think it is competent to state what Warner or Wagner advised. MR. VAN VOORHIS: So that the question may appear squarely in the case I offer to show what was said and done at the time Miss Anthony and the other ladies registered, by them, the inspectors, and the federal Supervisors, Warner and Wagner, in their presence, in regard to that subject. THE COURT: I exclude it. MR. VAN VOORHIS: Does that exclude all conversations that occurred there with any persons? THE COURT: It excludes anything of that character on the subject of advising them. Your case is just as good without it as with it. MR. VAN VOORHIS: I didn't offer it in view of the advice, but to show precisely what the operation of the minds of these inspectors was at that time, and what the facts are. THE COURT: It is not competent. By MR. VAN VOORHIS: Q. Were you present on the day of election? A. Yes, sir. Q. Did you receive the votes of these persons? A. I did. Q. How many ballot boxes were there there? A. Six. Q. What position did you occupy during the day? A. Chairman of the Board. Q. Did you stand at the window and receive the votes? A. Most of the time I did. Q. Were those ballots which you received from them folded? A. They were. Q. Did you or any of the inspectors see or know the contents of any of the ballots? MR. CROWLEY: If your Honor please, I submit it is entirely immaterial whether these inspectors saw the names upon the ballots. THE COURT: I have excluded that already. It is not competent. It is proved that they put in votes, and it is proved by one of the ladies that she did vote for a candidate for Congress. MR. VAN VOORHIS: I propose to show by the witness that he didn't know the contents of any ballot, and didn't see it. THE COURT: That will be assumed. He could not do it with any propriety. By MR. VAN VOORHIS: Q. Did either one of the inspectors object to receiving the votes of the women at the polls? A. Yes, sir. Q. Which one? A. William B. Hall. Q. Did he take any part in receiving votes, and, if so, state what part? A. I believe that he took the ballot of one lady, and placed it in the box. I stepped out, I believe, for a few moments. Q. Did it to accommodate you while you stepped out? A. Yes, sir. Q. On the day of registry did the inspectors as a board decide unanimously to register these votes, all three of you consenting? A. We did. Q. When you came to receive the votes, Hall dissented? A. He did, sir. Q. But the other two were a majority, and he was overruled; was this the way it was, or wasn't there anything in form said about it? A. He was overruled; I felt it my duty to take the ballots. Q. In receiving those ballots did you act honestly in accordance with your sense of duty, and in accordance with your best judgment? A. I did. By MR. CROWLEY: Q. All three of the inspectors agreed in receiving these names for registration, did they not? A. Yes, sir. By MR. VAN VOORHIS: Q. I meant to have asked you in reference to the challenges; state whether or not challenges were entered against these voters prior to the day of election? A. There was. Q. On their presenting their votes, what was done? A. I told Miss Anthony, when she offered her vote, that she was challenged; she would have to swear her ballot in if she insisted upon voting; she said she insisted upon voting, and I presented her the Bible and administered to her the preliminary oath, which she took. I turned to the gentleman that challenged her, and asked him if he still insisted upon her taking the general oath. Q. Were questions asked her? A. There were, after taking the preliminary oath. Q. In accordance with the instruction? A. Yes, sir. Q. Go on. A. I turned to the gentleman that challenged her, and asked him if he still insisted on his challenge; he said he did; I told her she would have to take the general oath; I administered the general oath, and she took it. Q. Was that done in each case of the women who voted? A. It was. By MR. CROWLEY: Q. As I understand you, all three of the inspectors agreed in permitting these people to be registered? A. They didn't at first. Q. Well, they did before they were registered, did they not? A. They did before their names were put upon the book. Q. And when they voted, yourself and Mr. Marsh were in favor of receiving the votes, and Hall was opposed to receiving the votes? A. Yes, sir. By MR. VAN VOORHIS: Q. Did you suppose at that time that the law required you to take their votes? Objected to. Sustained. By MR. CROWLEY: Q. Did you have two meetings for the purpose of registration prior to election? A. Yes, sir. Q. Upon the days fixed by the laws of the State of New York? A. Yes, sir. Q. You made a list or registry, did you not, upon those days? A. We did. Q. Upon the day of election you had a list of voters? A. Yes, sir. Q. Those produced here to-day are the lists kept upon that occasion, are they not? A. (After looking at Exhibits A. and B.) Those are the books. By THE COURT: Q. Did these ladies vote the Congressional ticket, all of them? A. I couldn't swear to that. Q. Look at the book as to that. A. It does not tell for certain; the clerks may have made a mistake in making these marks; they do very often. Q. Did you make any of the entries in that book? A. No, sir; a clerk appointed by me did it. By MR. CROWLEY: Q. When you counted up your votes at night, when the polls closed, did you compare your votes with the list? A. Yes, sir. Q. Did you find it correct? A. We found it fell short of the poll list several ballots; I can't tell how many. Q. Do you know whether it fell short on members of Congress? A. Yes, sir, it did. Q. Did you make a certificate and return of that fact? A. Yes, sir; the certificate was filed in the Clerk's office. EDWIN T. MARSH, one of the defendants, having been duly affirmed as a witness in his own behalf, testified as follows: _Examined by_ MR. VAN VOORHIS: Q. Were you one of the inspectors of the 8th ward? A. I was. Q. How was you appointed? A. I was appointed by the Common Council just before the first meeting of the board. Q. What is your age? A. I am 33. Q. Did you hear the statement of Mr. Jones? A. I did. Q. To save time, I will ask you whether that was substantially correct as you understand it? A. Yes, sir. Q. Now, I will ask you the question if, in registering and receiving these votes, you believed that the law required you to do it, and you acted conscientiously and honestly? Objected to. THE COURT: Put the question as you did to the other witness--whether in receiving these votes he acted honestly and according to the best of his judgment. By MR. VAN VOORHIS: Q. Answer that question, please? A. I most assuredly did. [This witness was not cross-examined.] WILLIAM C. STORRS, a witness sworn in behalf of the defendants, testified as follows: _Examined by_ MR. VAN VOORHIS: Q. Where do you reside? A. City of Rochester. Q. What office do you hold? A. United States Commissioner. Q. How long have you held that office? A. Fifteen years. Q. Do you know these defendants, Jones and Marsh? A. I do, sir. Q. Was any application made to you, by any person, at any time, for a warrant against them for this offence? Objected to. MR. VAN VOORHIS: If the counsel objects I will not insist upon the evidence. [This witness was not cross-examined.] SUSAN B. ANTHONY, called as a witness in behalf of the defendants. MISS ANTHONY: I would like to know if the testimony of a person who has been convicted of a crime, can be taken? THE COURT: They call you as a witness, madam. The witness, having been duly affirmed, testified as follows: _Examined by_ MR. VAN VOORHIS: Q. Miss Anthony, I want you to state what occurred at the Board of Registry, when your name was registered? A. That would be very tedious, for it was full an hour. Q. State generally what was done, or what occupied that hour's time? Objected to. Q. Well, was the question of your right to be registered a subject of discussion there? A. It was. Q. By and between whom? A. Between the supervisors, the inspectors, and myself. Q. State, if you please, what occurred when you presented yourself at the polls on election day? A. Mr. Hall decidedly objected-- MR. CROWLEY: I submit to the Court that unless the counsel expects to change the version given by the other witnesses, it is not necessary to take up time. THE COURT: As a matter of discretion, I don't see how it will be of any benefit. It was fully related by the others, and doubtless correctly. MR. CROWLEY: It is not disputed. THE WITNESS: I would like to say, if I might be allowed by the Court, that the general impression that I swore I was a male citizen, is an erroneous one. By MR. VAN VOORHIS: Q. You took the two oaths there, did you? A. Yes, sir. By THE COURT: Q. You presented yourself as a female, claiming that you had a right to vote? A. I presented myself not as a female at all, sir; I presented myself as a citizen of the United States. I was called to the United States ballot box by the 14th amendment, not as a female, but as a citizen, and I went there. MR. VAN VOORHIS: We have a number of witnesses to prove what occurred at the time of registry, and what advice was given by these federal supervisors, but under your Honor's ruling it is not necessary for us to call them. Inasmuch as Mr. Hall is absent, I ask permission to put in his evidence as he gave it before the Commissioners. MR. CROWLEY: I have not read it, your Honor, but I am willing they should use so much of it as is competent under your Honor's ruling. THE COURT: Will it change the case at all, Mr. Van Voorhis? MR. VAN VOORHIS: It only varies it a little as to Hall. He stated that he depended in consenting to the registry, upon the advice of Mr. Warner, who was his friend, and upon whom he looked as a political father. THE COURT: I think you have all the question that any evidence could give you in the case. These men have sworn that they acted honestly, and in accordance with their best judgment. Now, if that is a defense, you have it, and it will not make it any stronger to multiply evidence. MR. VAN VOORHIS: I suppose it will be conceded that Hall stands in the same position as to his motives? MR. CROWLEY: Yes; we have no evidence to offer upon that question at all. _Evidence closed._ * * * Mr. Van Voorhis addressed the Court at some length, as follows: May it please the Court, I submit that there is no ground whatever to charge these defendants with any criminal offense. 1. Because the women who voted were legal voters. 2. Because they were challenged and took the oaths which the statute requires of Electors, and the Inspectors had no right, after such oath, to reject their votes. 1 R.S. Edmonds Ed., 126-127. The duty of Inspectors of Election is defined by the Statute as follows: "§ 13. If any person offering to vote at any election shall be challenged in relation to his right to vote at that election, by an Inspector, or by any other person entitled to vote at the same poll, one of the Inspectors shall tender to him the following preliminary oath: 'You do swear (or affirm) that you will truly and fully answer all such questions as shall be put to you touching your place of residence and qualifications as an Elector.'" "§ 14. The Inspectors or one of them shall then proceed to question the person challenged in relation to his name; his then place of residence; how long he has resided in the town or ward where the vote is offered; what was the last place of his residence before he came into that town or ward, and also as to his citizenship, and whether a native or a naturalized citizen, and if the latter, when, where, and in what court, or before what officer, he was naturalized; whether he came into the town or ward for the purpose of voting at that election; how long he contemplates residing in the town or ward; and all such other questions as may tend to test his qualifications as a resident of the town or ward, citizenship and right to vote at that poll." "§ 15. If any person shall refuse to take the said preliminary oath when so tendered, or to answer fully any questions which shall be so put to him, his vote shall be rejected." "§ 16. After receiving the answers of the person so challenged, the board of inspectors shall point out to him the qualifications, if any, in respect to which he shall appear to them deficient." "§ 17. If the person so offering shall persist in his claim to vote, and the challenge shall not be withdrawn, one of the inspectors shall then administer the following oath: 'You do swear (or affirm as the case may be) that you have been a citizen of the United States for ten days, and are now of the age of twenty one years; that you have been an inhabitant of this State for one year next preceding this election, and for the last four months a resident of this County; that you have been for thirty days next preceding this election a resident of this Assembly district (or Senate or Congressional district or districts, ward, town, village or city from which the officer is to be chosen for whom said person offers to vote); that you are now a resident of this town (or ward, as the case may be) and of the election district in which you now offer to vote, and that you have not made any bet or wager, and are not directly or indirectly interested in any bet or wager depending upon the result of this election, and that you have not voted at this election.'" "§ 18. Prescribes the form of oath to be administered to colored men." "§ 19. If any person shall refuse to take the oath so tendered, his vote shall be rejected." The defendants performed their duty strictly and fully according to the statute. The persons offering to vote were challenged; the defendants administered the preliminary oath to them; all the questions required by the statute were answered fully and truly; the challenge was still insisted on; the general oath was administered by the defendants to them; they took that oath, and every word contained in it was true in their case. The inspectors had no alternative. They could not reject the votes. This statute has been construed by the Court of Appeals of this State in the case of _The People vs. Pease, 27 N.Y. 45_. In that case it is held, that inspectors of election have no authority by statute to reject a vote except in three cases: (1) after a refusal to take the preliminary oath, or (2) fully to answer any questions put, or (3) on refusal to take the general oath. _Davies_ J., in his opinion after an examination of the provisions of the statute says: "_It is seen, therefore, that the inspectors have no authority, by statute, to reject a vote except in the three cases: after refusal to take the preliminary oath, or fully to answer any questions put, or on refusal to take the general oath. And the only judicial discretion vested in them is, to determine whether any question put to the person offering to vote, has or has not, been fully answered. If the questions put have been fully answered, and such answers discover the fact, that the person offering to vote is not a qualified voter, yet if he persists in his claim to vote it is imperative upon the inspectors to administer to him the general oath, and if taken, to receive the vote and deposit the same in the ballot box._" _Selden_, J., who wrote in the same case, examines this question with great care and reaches the same conclusion. He says: "The course required by the statute, to be pursued where the right of any person to vote is challenged, cannot be reconciled with any discretionary power of rejection vested in the inspectors. (Citing the statute as above quoted.) The inspectors are, first, to administer what is called the preliminary oath, requiring the person offering the vote to answer such questions as shall be put to him touching his place of residence and qualifications as an elector. The statute then mentions several questions which are to be addressed to him by the inspectors, and authorizes such other questions as may tend to test his qualifications as a voter. If he refuse to take the oath, or to answer fully, his vote is to be rejected; but if he answers fully, the inspectors are required to point out to him the qualifications, if any, in which he shall appear to them to be deficient. If he still persists in his right to vote, and the challenge is not withdrawn, the inspectors are required to administer to him the general oath, in which he states in detail, and swears, that he possesses all the qualifications the Constitution and laws require the voter to possess. _If he refuse to take the oath, his vote shall be rejected._ Is not the inference irresistible, that, if he take the oath, it shall be received? If his vote is to be rejected after he takes the oath, why not reject it before? _As I construe the statute, the inspectors have no discretion left them in such a case_ (where the person offering to vote is not shown by a record to have been convicted of a crime, or by his own oath to be interested in a bet upon the election,) _but must deposit the ballot in the box, whatever they may believe or know of the want of qualifications of the voter. They are required to act upon the evidence which the statute prescribes, and have no judicial power to pass upon the question of its truth or falsehood; nor can they act upon their own opinion or knowledge._" These views were concurred in by all the Judges. _Denio_, J., who wrote a dissenting opinion in the case, concurred with the other Judges as to the powers and duties of inspectors. The defendants, then, have not in the least violated any law of the State of New York. They performed their duty according to the statute and in accordance with the decision of the highest court of the State, and in accordance with the printed instructions furnished them by the Secretary of State. What further can be demanded of them? No United States statute prescribes or attempts to prescribe their duties. They cannot legally be convicted and should be discharged. 3. Because no malice is shown. Whether the women were entitled to have their names registered and to vote, or not, the defendants believed they had such right, and acted in good faith, according to their best judgment, in allowing the registry of their names--and in receiving their votes--and whether they decided right or wrong in point of law, they are not guilty of any criminal offense. The substance of the statute is, as to registration: "If any such officer shall ... _knowingly and wilfully_ register as a voter any person not entitled to be registered, or refuse to so register any person entitled to be registered ... every such person shall be deemed guilty of a crime." Act of May 31, 1870, § 20, As Amended by Act of Feb. 28, 1871, § 1. And as to voting: "If any person shall ... _knowingly and wilfully_ receive the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote ... every such person shall be deemed guilty of a crime." Act of May 31, 1870, § 19. To bring an inspector within either of these sections he must know as _matter of fact_, that the person offering to vote, or to be registered, is not entitled to be registered or to vote. The inspectors were _compelled to decide the question_, and to decide it instantly, with no chance for examination or even consultation--and if they decided in good faith, according to the best of their ability, they are excused, whether they decided correctly or not in point of law. This is too well settled to admit of dispute--settled by authority as well as by the plainest principles of justice and common sense. The law never yet placed a public officer in a position where he would be compelled to decide a doubtful legal question, and to act upon his decision, _subject to the penalty of fine_ or imprisonment if he chanced to err in his decision. All that is ever required of an officer, so placed, whether a judicial or ministerial officer, _so far as is necessary to escape any imputations of crime_, is good faith. Ministerial officers may be required, in some cases to act at their peril as to _civil_ responsibilities, but as to _criminal responsibilities_ never. Inspectors of elections, however, _acting in good faith_, incur neither civil nor criminal responsibilities. In _Jenkins vs. Waldron (11 John 114)_, which was an action on the case against inspectors of election for refusing to receive the vote of the plaintiff, a duly qualified voter, it was held, that the action would not lie _without proving malice_. Spencer, J., delivering the opinion of the Court, closes as follows: "It would in our opinion be opposed to all the principles of law, justice and sound policy, to hold that officers called upon to exercise their deliberate judgments, _are answerable for a mistake in law_, either civilly or criminally, where their motives are pure and untainted with fraud or malice." The same point precisely was decided in a like case, in the Supreme Court of this State recently and _Jenkins vs. Waldron approved_. Goetchens vs. Mathewson, 5 Lansing, 214. In Harman v. Tappenden and fifteen others (1 East 555) the plaintiff was a freeman of the company of free fishermen and dredgermen of the manor and hundred of Faversham in Kent, and the defendants, as officers of the company, caused him "wrongfully, unlawfully and unjustly" to be disfranchised, and removed from his said office of freeman. He was restored by mandamus, and brought his action on the case against the defendants who removed him, to recover his damages. On the trial before Lord Kenyon, C.J., a verdict was taken for the plaintiff for nominal damages, with leave to the defendant to move to enter a non-suit. On that motion Lord Kenyon, C.J., said: "Have you any precedent to show that an action of this sort will lie, without proof of malice in the defendants, or that the act of disfranchisement was done on purpose to deprive the plaintiff of the particular advantage which resulted to him from his corporate character? I believe this is a case of the first impression, where an action of this kind had been brought, _upon a mere mistake, or error in judgment_. The plaintiff had broken a by-law, for which he had incurred certain penalties, and happening to be personally present in the court, he was called upon to show cause why he should not pay the forfeitures; to which not making any answer, but refusing to pay them, the court proceeded, taking the offense _pro confesso_, without any proof, to call on him to show cause why he should not be disfranchised; and they accordingly made the order. This was undoubtedly irregular, but it was nothing more than a mistake, and there was no ground to impute any malicious motives to the persons making the order." Lawrence, J., said: "There is no instance of an action of this sort maintained for an act merely from error of judgment. Perhaps the action might have been maintained, if it had been proved that the defendants' contriving and intending to injure and prejudice the plaintiff, and to deprive him of the benefit of his profits from the fishery, which as a member of this body he was entitled to, according to the custom, had _wilfully and maliciously_ procured him to be disfranchised, in consequence of which he was deprived of such profits. But here there was no evidence of any wilful and malicious intention to deprive the plaintiff of his profits, or that they had disfranchised him with that intent, _which is necessary to maintain this action_. They were indeed guilty of an error in their proceedings to disfranchise him, in not going into any proof of the offence charged against him, but taking his silence as a confession. In the case of _Drewe v. Coulton_, where the action was against the Mayor of Saltash, who was returning officer, for refusing the plaintiff's vote at an election, which was claimed in right of a burgage tenement; Wilson, J., nonsuited the plaintiff _because malice was not proved_; and he observed, that though Lord Holt, in the case of _Ashby v. White_, endeavored to show that the action lay for the obstruction of the right, yet the House of Lords, in the justification of their conduct, supposed to be written by the Chief Justice, puts it upon a different principle, the _wilfulness of the act_. The declaration in that case was copied from the precedent in _Milward v. Sargeant_, which came on in this court on a writ of error, _Hill 26, Geo. 3_, for refusing the plaintiff's vote for the borough of Hastings. There the charge was 'that the defendant contriving and wrongfully intending to injure and prejudice the plaintiff, and to hinder and deprive him of his privilege of voting, did not take or allow his vote.' All which allegations Mr. Justice Wilson, in the case above alluded to, thought were essential to be proved in order to sustain the action." "_Per Curiam._ Rule discharged." The Reporter's head note is: "An action does not lie against individuals for acts erroneously done by them _in a corporate capacity_ from which detriment has happened to the plaintiff. At least, not without proof of malice." The case of _Drewe v. Coulton_ is given at length in a note to _Harman v. Tappenden and others 1 East 563_, and fully sustains what is said of it by Mr. Justice Lawrence. The election was for member to serve in Parliament for the borough of SALTASH. The defendant was Mayor and returning officer. The question presented to him was "whether the owners of burgage tenements in the borough, had a right of voting, or whether that right was confined to the freemen of the corporation." The defendant had rejected the vote offered by the plaintiff, he claiming the right as a burgage tenant. The action was for that refusal, charging the defendant with "contriving and wrongfully intending to deprive the plaintiff &c., obstructed and hindered him from giving his vote." Wilson, J., among other things, says: "This is in the nature of it, an action for misbehavior by a public officer in his duty. Now I think, that it cannot be called a misbehavior, _unless maliciously and wilfully done, and that the action will not lie for a mistake in law_. The case of the bridge master is in point [Bul N.P. 64.]. It is there said, that an action on the case lies against a ministerial officer for _wilful_ misbehavior, as denying a poll for one who is a candidate for an elective office, such as bridge master &c." "In all the cases put, the misbehavior must be _wilful and by wilful_ I understand _contrary to a man's own conviction_. Therefore I think from the opening of counsel, this is not a wilful refusal of the vote.... In very few instances is an officer answerable for what he does to the best of his judgment, in cases where he is compelled to act. But the action lies where the officer has an option whether he will act or not. Besides, I think, that if an action were to be brought upon every occasion of this kind by every person whose vote was refused, it would be such an inconvenience as the law would not endure. A returning officer in such a case would be in a most perilous situation. _This gentleman was put in a situation where he was bound to act; and if he acted to the best of his judgment it would be a great hardship that he should be answerable for the consequences, even though he is mistaken in a point of law._ It was a very material observation of Mr. Gibbs, that the words of the resolution of the _House of Lords_ in _Ashby v. White_ followed the words of the statute of William III. For if that statute were declaratory of the common law, as it purports to be ['Be it enacted and declared that all false returns wilfully made' &c.] and an action would not lie at common law for a false return, unless the return be proved to have been made maliciously, as well as falsely, it should seem, by a parity of reasoning, that a person whose vote is refused by a returning officer, cannot maintain an action against him, unless the refusal _be proved to have been wilful and malicious_. And if malice were necessary before the statute by the common law, and since by the statute which is declaratory thereof, to sustain an action for a false return which includes perhaps the votes of all, it seems equally necessary in an action like the present where the injury complained of is to one only. "I do not mean to say, that in this kind of action, it is necessary to prove _express_ malice. It is sufficient if malice may be implied from the conduct of the officer; as if he had decided contrary to a last resolution of the House of Commons. There _I should leave it to the jury to imply malice_. But taking all _the circumstances of this case together, malice can in no shape be imputed to the defendant. The plaintiff may have a right to vote, but that depends upon an intricate question of law, with respect to burgage tenures_; the right itself founded on ancient documents and usages, and not acted upon for many years.... "_From these grounds, therefore, it cannot be inferred that the defendant has acted wilfully and maliciously in refusing the plaintiff's vote; and unless that be so he is not liable in this action._ ... "But without determining whether the statute be declaratory of the common law, or not; if not, the case rests on that of _Ashby v. White_. Now all the debates and arguments in that case _go upon the malice_; and all those who have acted on that determination since have considered that the refusal must be _wilful and malicious_ in order to support the action.... "And in my opinion, it cannot be said, that because an officer is mistaken in a point of law, this action will lie against him.... It has also been said, that this is not like a case where a burdensome office is thrown upon a man, without his consent, wherein he is compellable to act; for that here the defendant has chosen to become a member of a corporation by which he had put himself in a situation to become a returning officer, and therefore that he is _bound to understand the whole law as far as it relates to his public situation, and is answerable for any determination he may make contrary to that law. But I much doubt whether that rule be generally true_; and in the present instance I am clearly of opinion that the want of malice is a full defense." Lawrence, J., sat with Wilson. The plaintiff was nonsuited and no new trial was moved for. _Bernardiston v. Some_ (2 Lev. 114, 1 East. 586, note b.) was an action against the sheriff of Suffolk, charging that the defendant, intending to deprive him of the office of Knight of the Shire, made a double return. Upon a trial at bar, Twysden, Rainsford, and Wylie Js. held, and so directed the jury, that if the return was made _maliciously_, they ought to find for the plaintiff, which they did and gave him £800. On motion in arrest of judgment, Hale, C.J., being in court; he, Twysden & Wylie, Js. held that for as much as the return was laid to be _falso et malitiose et ea intentione_, to put the plaintiff to charge and expense, and so found by the jury, the action lay. Rainsford, J., doubted. But notwithstanding this charge of malice, judgment was reversed _in Cam scacc (vide 3 Lev. 30_) and that judgment of reversal was affirmed in Parliament. Lord Chief justice North's first reason against the action was, because the sheriff as to declaring the Mayoralty is _judge_ and no action will lie against a judge for what he does judicially, though it should be laid _falso malitiose et scienter_. This reversal occasioned the passage of the statute (7 and 8 W. III c. 7) which gives an action against the returning officer, for all false returns "wilfully made, and for double returns _falsely, wilfully and maliciously made_." _Groenvelt v. Burwell & al_ (1 Salk. 396, S.C. 2 Ld Ray. 230, Comyns 76.) In this case, the Censors of the College of Physicians and Surgeons, in London, were empowered to inspect, govern and censure, all practices of physic in London--and to punish by fine and imprisonment. They convicted the plaintiff of administering noxious medicines, and fined him £20, and imprisonment 12 months. Being taken in execution, he brought trespass against the Censors. It was held 1. That the Censors had judicial power. 2. That being judges of the matter, what they had adjudged was not traversable. That the plaintiff could not be permitted to gainsay, what the Censors had said by their judgment--that the medicines were noxious. 3. Though the medicines were really good, yet no action lies against the Censors, because it is a wrong judgment in a matter within the limits of their jurisdiction; and a judge is not answerable, either to the King or the party, for the mistakes or errors of his judgment in a matter of which he has jurisdiction; It would expose the justice of the nation, and _no man would execute the office upon peril of being arraigned by action or indictment for every judgment he pronounces_. All that I have quoted from the English cases and our own to show that _malice_ must be proven to make out the offense, _is expressly contained in the_ statute under which this indictment is framed. The words are (Sec. 19) "shall knowingly and _wilfully_ receive the vote of any person not entitled to vote." (And Section 20 as amended) "If any such officer shall knowingly and _wilfully_ register, as a voter any person not entitled to vote." And wilfully means, to use the language of Mr. Justice Wilson, "_contrary to a man's own conviction_." If it be said that the defendants must be presumed to know the law, that is answered above by the quotations from the opinion of Mr. Justice Wilson. Besides when the statute speaks of "knowledge," aside from the expression "wilfully" it means _knowledge_ as a _fact_--not any _forced presumption of knowledge_ against the clear facts of the case. To this extent and _to this extent only_, does the presumption that defendants were bound to know the law go, viz: They were bound to know that if they _as a fact_ "knowingly and wilfully registered as a voter any person not entitled to be registered" or "knowingly and wilfully received the vote of any person not entitled to vote," in either case they were liable to the penalty; and they could not be allowed to urge in their defense any ignorance that _the law made those facts criminal_. Here is a total absence of any pretence of malice. The defendants acted honestly and according to their best judgment. This is conceded. The most that can be said against them is, that they have erred in judgment. They are not lawyers, nor skilled in the law. They had presented to them a legal question which, to say the least, has puzzled some of the ablest legal minds of the nation. The penalty is the same, on which ever side they err. If they can be convicted of crime, a test must be imposed upon them, which no judge in the land could stand. The defendants should be discharged by this Court. Mr. Crowley then rose to make his argument, when the Court said: THE COURT: I don't think it is necessary for you to spend time in argument, Mr. Crowley. I think upon the last authority cited by the counsel there is no defense in this case. It is entirely clear that where there is a distinct judicial act, the party performing the judicial act is not responsible, civilly or criminally, unless corruption is proven, and in many cases not when corruption is proven. But where the act is not judicial in its character--where there is no discretion--then there is no legal protection. That is the law, as laid down in the authority last quoted, and the authority quoted by Judge Selden in his opinion. It is undoubtedly good law. They hold expressly in that case that the inspectors are administrative officers, and not judicial officers. Now, this is the point in the case, in my view of it: If there was any case in which a female was entitled to vote, then it would be a subject of examination. If a female over the age of 21 was entitled to vote, then it would be within the judicial authority of the inspectors to examine and determine whether in the given case the female came within that provision. If a married woman was entitled to vote, or if a married woman was not entitled to vote, and a single woman was entitled to vote, I think the inspectors would have a right in a case before them, to judge upon the evidence whether the person before them was married or single. If they decided erroneously, their judicial character would protect them. But under the law of this state, as it stands, under no circumstances is a woman entitled to vote. When Miss Anthony, Mrs. Leyden and the other ladies came there and presented themselves for registry, and presented themselves to offer their votes, when it appeared that they were women--that they were of the female sex--the power and authority of the inspectors was at an end. When they act upon a subject upon which they have no discretion, I think there is no judicial authority. There is a large range of discretion in regard to the votes offered by the male sex. If a man offers his vote, there is a question whether he is a minor--whether he is 21 years of age. The subject is within their jurisdiction. If they decide correctly, it is well; if they decide erroneously, they act judicially, and are not liable. If the question is whether the person presenting his vote is a foreigner or naturalized, or whether he has been a resident of the state or district for a sufficient length of time, the subject is all within their jurisdiction, and they have a right to decide, and are protected if they decide wrong. But upon the view which has been taken of this question of the right of females to vote, by the United States Court at Washington, and by the adjudication which was made this morning, upon this subject there is no discretion, and therefore I must hold that it affords no protection. In that view of the case, is there anything to go to the jury? MR. VAN VOORHIS: Yes, your Honor. THE COURT: What? MR. VAN VOORHIS: The jury must pass upon the whole case, and particularly as to whether any ballots were received for representative in Congress, or candidates for representative in Congress, and whether the defendants acted wilfully and maliciously. THE COURT: It is too plain to argue that. MR. VAN VOORHIS: There is nothing but circumstantial evidence. THE COURT: Your own witness testified to it. MR. VAN VOORHIS: But "knowingly," your Honor, implies knowing that it is a vote for representative in Congress. THE COURT: That comes within the decision of the question of law. I don't see that there is anything to go to the jury. MR. VAN VOORHIS: I cannot take your Honor's view of the case, but of course must submit to it. We ask to go to the jury upon this whole case, and claim that in this case, as in all criminal cases, the right of trial by jury is made inviolate by the constitution--that the Court has no power to take it from the jury. THE COURT: I am going to submit it to the jury. _Gentlemen of the Jury_: This case is now before you upon the evidence as it stands, and I shall leave the case with you to decide-- MR. VAN VOORHIS: I claim the right to address the jury. THE COURT: I don't think there is anything upon which you can legitimately address the jury. Gentlemen, the defendants are charged with knowingly, willfully and wrongfully receiving the votes of the ladies whose names are mentioned, in November last, in the City of Rochester. They are charged in the same indictment with willfully and improperly registering those ladies. I decided in the case this morning, which many of you heard, probably, that under the law as it stands the ladies who offered their votes had no right to vote whatever. I repeat that decision, and I charge you that they had no right to offer their votes. They having no right to offer their votes, the inspectors of election ought not to receive them. The additional question exists in this case whether the fact that they acted as inspectors will relieve them from the charge in this case. You have heard the views which I have given upon that. I think they are administrative officers. I charge you that they are administrative and ministerial officers in this respect, that they are not judicial officers whose action protects them, and that therefore they are liable in this case. But, instead of doing as I did in the case this morning--directing a verdict--I submit the case to you with these instructions, and you can decide it here, or you may go out. MR. VAN VOORHIS: I ask your Honor to instruct the jury that if they find these inspectors acted honestly, in accordance with their best judgment, they should be acquitted. THE COURT: I have expressly ruled to the contrary of that, gentlemen; that that makes no difference. MR. VAN VOORHIS: And that in this country--under the laws of this country-- THE COURT: That is enough--you need not argue it, Mr. Van Voorhis. MR. VAN VOORHIS: Then I ask your Honor to charge the jury that they must find the fact that these inspectors received the votes of these persons knowingly, and that such votes were votes for some person for member of Congress, there being in the case no evidence that any man was voted for, for member of Congress, and there being no evidence except that secret ballots were received; that the jury have a right to find for the defendants, if they choose. THE COURT: I charge the jury that there is sufficient evidence to sustain the indictment, upon this point. MR. VAN VOORHIS: I ask your Honor also to charge the jury that there is sufficient evidence to sustain a verdict of not guilty. THE COURT: I cannot charge that. MR. VAN VOORHIS: Then why should it go to the jury? THE COURT: As a matter of form. MR. VAN VOORHIS: If the jury should find a verdict of not guilty, could your Honor set it aside? THE COURT: I will debate that with you when the occasion arises. Gentlemen, you may deliberate here, or retire, as you choose. The jury retired for consultation, and the Court took a recess until 7 P.M. The Court re-convened at 7 o'clock, when the clerk called the jury, and asked them if they had agreed upon their verdict. The foreman replied in the negative, whereupon the Court said: THE COURT: Is there anything upon which I can give you any advice, gentlemen, or any information? A JUROR: We stand 11 for conviction, and 1 opposed. THE COURT: If that gentleman desires to ask any questions in respect to the questions of law, or the facts in the case, I will give him any information he desires. (No response from the jury.) It is quite proper, if any gentleman has any doubt about anything, either as to the law or the facts, that he should state it to the Court. Counsel are both present, and I can give such information as is correct. A JUROR: I don't wish to ask any questions. THE COURT: Then you may retire again, gentlemen. The Court will adjourn until to-morrow morning. The jury retired, and after an absence of about ten minutes returned into court. The clerk called the names of the jury and then said: THE CLERK: Gentlemen, have you agreed upon your verdict? THE FOREMAN: We have. THE CLERK: How say you, do you find the prisoners at the bar guilty of the offense whereof they stand indicted, or not guilty? THE FOREMAN: Guilty. THE CLERK: Hearken to your verdict as it stands recorded by the Court. You say you find the prisoners at the bar guilty of the offense whereof they stand indicted, and so say you all. MR. VAN VOORHIS: I ask that the jury be polled. The clerk polled the jury, each juror answering in the affirmative to the question, "Is this your verdict?" On the next day, June 19, 1873, the counsel for the defendants, Mr. John Van Voorhis, made a motion to the Court, for a new trial in behalf of Beverly W. Jones, Edwin T. Marsh and William B. Hall. The argument was oral and is not given, but the following are the grounds of the motion: 1. The indictment contains no sufficient statement of any crime under the Acts of Congress, upon which it is framed. 2. The Court has no jurisdiction of the subject matter of the offense. 3. It was an error, for which a new trial should be granted, to refuse the defendants the fundamental right to address the jury, through their counsel. This is a right guaranteed by the United States Constitution. (_See Article VI. of the amendments to the U.S. Constitution. 1 Graham & Waterman on New Trials, pages 682, 683 and 684._) 4. The defendants were substantially deprived of the right of jury trial. The instructions of the Court to the jury were imperative. They were equivalent to a direction to find a verdict of guilty. It was said by the Court in the hearing of the jury, that the case was submitted to the jury "as a matter of form." The jury was not at liberty to exercise its own judgment upon the evidence, and without committing a gross discourtesy to the Court, could render no verdict except that of guilty. 5. Admitting that the defendants acted without malice, or any corrupt motive, and in accordance with their best judgments, and in perfect good faith, it was error to charge that that was no defense. 6. The defendants are admitted to have acted in accordance with their duty as defined by the laws of New York (_1 R.S., Edmond's Ed., pp. 126-127, sections 13, 14, 15, 16, 17, 18 and 19_) as construed by the Court of Appeals. (_People vs. Pease, 27 N.Y. 45._) They are administrative officers and bound to regard only the evidence which the Statute prescribes. They are not clothed with the power, to reject the vote of a person who has furnished the evidence, which the law requires, of right to vote, on what they or either of them might know, as to the truth or falsity of such evidences. They have no discretion, and must perform their duty, as it is defined by the laws of New York and the decisions of her Courts. 7. The defendant, William B. Hall, has been tried and convicted in his absence from the Court. This is an error fatal to the conviction in his case. The Court denied the motion. The Court then asked the defendants if they had anything to say why sentence should not be pronounced, in response to which Beverly W. Jones said: "Your honor has pronounced me guilty of crime; the jury had but little to do with it. In the performance of my duties as an inspector of election, which position I have held for the last four years, I acted conscientiously, faithfully and according to the best of my judgment and ability. I did not believe that I had a right to reject the ballot of a citizen who offered to vote, and who took the preliminary and general oaths; and answered all questions prescribed by law. The instructions furnished me by the State authorities declared that I had no such right. As far as the registry of the names is concerned, they would never have been placed upon the registry, if it had not been for Daniel Warner, the Democratic federal Supervisor of elections, appointed by this Court, who not only advised the registry, but addressed us, saying, 'Young men, do you know the penalty of the law if you refuse to register these names?' And after discharging my duties faithfully and honestly and to the best of my ability, if it is to vindicate the law that I am to be imprisoned, I willingly submit to the penalty." And Edwin T. Marsh said: "In October last, just previous to the time fixed for the sitting of the Board of Registrars in the first district of the eighth ward of Rochester, a vacancy occurred. I was solicited to act, and consenting, was duly appointed by the Common council. "I had never given the matter a thought until called to the position, and as a consequence knew nothing of the law. On the morning of the first day of the last session of the Board, Miss Anthony and other women presented themselves and claimed the right to be registered. So far as I knew, the question of woman suffrage had never come up in that shape before. We were in a position where we could take no middle course. "Decide which way we might, we were liable to prosecution. We devoted all the time to acquiring information on the subject, that our duties as Registrars would allow. "We were expected, it seems, to make an infallible decision, inside of two days, of a question in regard to which some of the best minds of the country are divided. The influences by which we were surrounded, were nearly all in unison with the course we took. I believed then, and believe now, that we acted _lawfully_. "I faithfully discharged the duties of my office, according to the best of my ability, in strict compliance with the oath administered to me. I consider the argument of our counsel unanswered and unanswerable." "_The verdict is not the verdict of the jury._ "_I am_ NOT GUILTY _of the charge_." The Court then sentenced the defendants to pay a fine of $25 each, and the costs of the prosecution. APPENDIX. ADDRESS OF SUSAN B. ANTHONY, Delivered in twenty-nine of the Post Office Districts of Monroe, and twenty-one of Ontario, in her canvass of those Counties, prior to her trial in June, 1873. * * * _Friends and Fellow-citizens_: I stand before you to-night, under indictment for the alleged crime of having voted at the last Presidential election, without having a lawful right to vote. It shall be my work this evening to prove to you that in thus voting, I not only committed no crime, but, instead, simply exercised my _citizen's right_, guaranteed to me and all United States citizens by the National Constitution, beyond the power of any State to deny. Our democratic-republican government is based on the idea of the natural right of every individual member thereof to a voice and a vote in making and executing the laws. We assert the province of government to be to secure the people in the enjoyment of their unalienable rights. We throw to the winds the old dogma that governments can give rights. Before governments were organized, no one denies that each individual possessed the right to protect his own life, liberty and property. And when 100 or 1,000,000 people enter into a free government, they do not barter away their natural rights; they simply pledge themselves to protect each other in the enjoyment of them, through prescribed judicial and legislative tribunals. They agree to abandon the methods of brute force in the adjustment of their differences, and adopt those of civilization. Nor can you find a word in any of the grand documents left us by the fathers that assumes for government the power to create or to confer rights. The Declaration of Independence, the United States Constitution, the constitutions of the several states and the organic laws of the territories, all alike propose to protect the people in the exercise of their God-given rights. Not one of them pretends to bestow rights. "All men are created equal, and endowed by their Creator with certain unalienable rights. Among these are life, liberty and the pursuit of happiness. That to secure these, governments are instituted among men, deriving their just powers from the consent of the governed." Here is no shadow of government authority over rights, nor exclusion of any class from their full and equal enjoyment. Here is pronounced the right of all men, and "consequently," as the Quaker preacher said, "of all women," to a voice in the government. And here, in this very first paragraph of the declaration, is the assertion of the natural right of all to the ballot; for, how can "the consent of the governed" be given, if the right to vote be denied. Again: "That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such forms as to them shall seem most likely to effect their safety and happiness." Surely, the right of the whole people to vote is here clearly implied. For however destructive to their happiness this government might become, a disfranchised class could neither alter nor abolish it, nor institute a new one, except by the old brute force method of insurrection and rebellion. One-half of the people of this nation to-day are utterly powerless to blot from the statute books an unjust law, or to write there a new and a just one. The women, dissatisfied as they are with this form of government, that enforces taxation without representation,--that compels them to obey laws to which they have never given their consent,--that imprisons and hangs them without a trial by a jury of their peers, that robs them, in marriage, of the custody of their own persons, wages and children,--are this half of the people left wholly at the mercy of the other half, in direct violation of the spirit and letter of the declarations of the framers of this government, every one of which was based on the immutable principle of equal rights to all. By those declarations, kings, priests, popes, aristocrats, were all alike dethroned, and placed on a common level, politically, with the lowliest born subject or serf. By them, too, men, as such, were deprived of their divine right to rule, and placed on a political level with women. By the practice of those declarations all class and caste distinction will be abolished; and slave, serf, plebeian, wife, woman, all alike, bound from their subject position to the proud platform of equality. The preamble of the federal constitution says: "We, the people of the United States, in order to form a more perfect union, establish justice, insure _domestic_ tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." It was we, the people, not we, the white male citizens, nor yet we, the male citizens; but we, the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people--women as well as men. And it is downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic-republican government--the ballot. The early journals of Congress show that when the committee reported to that body the original articles of confederation, the very first article which became the subject of discussion was that respecting equality of suffrage. Article 4th said: "The better to secure and perpetuate mutual friendship and intercourse between the people of the different States of this Union, the free inhabitants of each of the States, (paupers, vagabonds and fugitives from justice excepted,) shall be entitled to all the privileges and immunities of the free citizens of the several States." Thus, at the very beginning, did the fathers see the necessity of the universal application of the great principle of equal rights to all--in order to produce the desired result--a harmonious union and a homogeneous people. Luther Martin, attorney-general of Maryland, in his report to the Legislature of that State of the convention that framed the United States Constitution, said: "Those who advocated the equality of suffrage took the matter up on the original principles of government: that the reason why each individual man in forming a State government should have an equal vote, is because each individual, before he enters into government, is equally free and equally independent." James Madison said: "Under every view of the subject, it seems indispensable that the mass of the citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them." Also, "Let it be remembered, finally, that it has ever been the pride and the boast of America that the rights for which she contended were the rights of human nature." And these assertions of the framers of the United States Constitution of the equal and natural rights of all the people to a voice in the government, have been affirmed and reaffirmed by the leading statesmen of the nation, throughout the entire history of our government. Thaddeus Stevens, of Pennsylvania, said in 1866: "I have made up my mind that the elective franchise is one of the inalienable rights meant to be secured by the declaration of independence." B. Gratz Brown, of Missouri, in the three days' discussion in the United States Senate in 1866, on Senator Cowan's motion to strike "male" from the District of Columbia suffrage bill, said: "Mr. President, I say here on the floor of the American Senate, I stand for universal suffrage; and as a matter of fundamental principle, do not recognize the right of society to limit it on any ground of race or sex. I will go farther and say, that I recognize the right of franchise as being intrinsically a natural right. I do not believe that society is authorized to impose any limitations upon it that do not spring out of the necessities of the social state itself. Sir, I have been shocked, in the course of this debate, to hear Senators declare this right only a conventional and political arrangement, a privilege yielded to you and me and others; not a right in any sense, only a concession! Mr. President, I do not hold my liberties by any such tenure. On the contrary, I believe that whenever you establish that doctrine, whenever you crystalize that idea in the public mind of this country, you ring the death-knell of American liberties." Charles Sumner, in his brave protests against the fourteenth and fifteenth amendments, insisted that, so soon as by the thirteenth amendment the slaves became free men, the original powers of the United States Constitution guaranteed to them equal rights--the right to vote and to be voted for. In closing one of his great speeches he said: "I do not hesitate to say that when the slaves of our country became 'citizens' they took their place in the body politic as a component part of the 'people,' entitled to equal rights, and under the protection of these two guardian principles: First--That all just governments stand on the consent of the governed; and second, that taxation without representation is tyranny; and these rights it is the duty of Congress to guarantee as essential to the idea of a Republic." The preamble of the Constitution of the State of New York declares the same purpose. It says: "We, the people of the State of New York, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution." Here is not the slightest intimation, either of receiving freedom from the United States Constitution, or of the State conferring the blessings of liberty upon the people; and the same is true of every one of the thirty-six State Constitutions. Each and all, alike declare rights God-given, and that to secure the people in the enjoyment of their inalienable rights, is their one and only object in ordaining and establishing government. And all of the State Constitutions are equally emphatic in their recognition of the ballot as the means of securing the people in the enjoyment of these rights. Article 1 of the New York State Constitution says: "No member of this State shall be disfranchised or deprived of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers." And so carefully guarded is the citizen's right to vote, that the Constitution makes special mention of all who may be excluded. It says: "Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, larceny or any infamous crime." In naming the various employments that shall not affect the residence of voters--the 3d section of article 2d says "that being kept at any alms house, or other asylum, at public expense, nor being confined at any public prison, shall deprive a person of his residence," and hence his vote. Thus is the right of voting most sacredly hedged about. The only seeming permission in the New York State Constitution for the disfranchisement of women is in section 1st of article 2d, which says: "Every male citizen of the age of twenty-one years, &c., shall be entitled to vote." But I submit that in view of the explicit assertions of the equal right of the whole people, both in the preamble and previous article of the constitution, this omission of the adjective "female" in the second, should not be construed into a denial; but, instead, counted as of no effect. Mark the direct prohibition: "No member of this State shall be disfranchised, unless by the 'law of the land,' or the judgment of his peers." "The law of the land," is the United States Constitution: and there is no provision in that document that can be fairly construed into a permission to the States to deprive any class of their citizens of their right to vote. Hence New York can get no power from that source to disfranchise one entire half of her members. Nor has "the judgment of their peers" been pronounced against women exercising their right to vote; no disfranchised person is allowed to be judge or juror--and none but disfranchised persons can be women's peers; nor has the legislature passed laws excluding them on account of idiocy or lunacy; nor yet the courts convicted them of bribery, larceny, or any infamous crime. Clearly, then, there is no constitutional ground for the exclusion of women from the ballot-box in the State of New York. No barriers whatever stand to-day between women and the exercise of their right to vote save those of precedent and prejudice. The clauses of the United States Constitution, cited by our opponents as giving power to the States to disfranchise any classes of citizens they shall please, are contained in sections 2d and 4th of article 1st. The second says: "The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." This cannot be construed into a concession to the States of the power to destroy the right to become an elector, but simply to prescribe what shall be the qualifications, such as competency of intellect, maturity of age, length of residence, that shall be deemed necessary to enable them to make an intelligent choice of candidates. If, as our opponents assert, the last clause of this section makes it the duty of the United States to protect citizens in the several States against higher or different qualifications for electors for representatives in Congress, than for members of Assembly, then must the first clause make it equally imperative for the national government to interfere with the States, and forbid them from arbitrarily cutting off the right of one-half of the people to become electors altogether. Section 4th says: "The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators." Here is conceded the power only to prescribe times, places and manner of holding the elections; and even with these Congress may interfere, with all excepting the mere place of choosing Senators. Thus you see, there is not the slightest permission in either section for the States to discriminate against the right of any class of citizens to vote. Surely, to regulate cannot be to annihilate! nor to qualify to wholly deprive. And to this principle every true Democrat and Republican said amen, when applied to black men by Senator Sumner in his great speeches for EQUAL RIGHTS TO ALL from 1865 to 1869; and when, in 1871, I asked that Senator to declare the power of the United States Constitution to protect women in their right to vote--as he had done for black men--he handed me a copy of all his speeches during that reconstruction period, and said: "Miss Anthony, put 'sex' where I have 'race' or 'color,' and you have here the best and strongest argument I can make for woman. There is not a doubt but women have the constitutional right to vote, and I will never vote for a sixteenth amendment to guarantee it to them. I voted for both the fourteenth and fifteenth under protest; would never have done it but for the pressing emergency of that hour; would have insisted that the power of the original Constitution to protect all citizens in the equal enjoyment of their rights should have been vindicated through the courts. But the newly made freedmen had neither the intelligence, wealth nor time to wait that slow process. Women possess all these in an eminent degree, and I insist that they shall appeal to the courts, and through them establish the powers of our American _magna charta_, to protect every citizen of the Republic. But, friends, when in accordance with Senator Summer's counsel, I went to the ballot-box, last November, and exercised my citizen's right to vote, the courts did not wait for me to appeal to them--they appealed to me, and indicted me on the charge of having voted illegally." Senator Sumner, putting sex where he did color, said: "Qualifications cannot be in their nature permanent or insurmountable. Sex cannot be a qualification any more than size, race, color, or previous condition of servitude. A permanent or insurmountable qualification is equivalent to a deprivation of the suffrage. In other words, it is the tyranny of taxation without representation, against which our revolutionary mothers, as well as fathers, rebelled." For any State to make sex a qualification that must ever result in the disfranchisement of one entire half of the people, is to pass a bill of attainder, or an _ex post facto_ law, and is therefore a violation of the supreme law of the land. By it, the blessings of liberty are forever withheld from women and their female posterity. To them, this government has no just powers derived from the consent of the governed. To them this government is not a democracy. It is not a republic. It is an odious aristocracy; a hateful obligarchy of sex. The most hateful aristocracy ever established on the face of the globe. An obligarchy of wealth, where the rich govern the poor; an obligarchy of learning, where the educated govern the ignorant; or even an obligarchy of race, where the Saxon rules the African, might be endured; but this obligarchy of sex, which makes father, brothers, husband, sons, the obligarchs over the mother and sisters, the wife and daughters of every household; which ordains all men sovereigns, all women subjects, carries dissension, discord and rebellion into every home of the nation. And this most odious aristocracy exists, too, in the face of Section 4, of Article 4, which says: "The United States shall guarantee to every State in the Union a republican form of government." What, I ask you, is the distinctive difference between the inhabitants of a monarchical and those of a republican form of government, save that in the monarchical the people are subjects, helpless, powerless, bound to obey laws made by superiors--while in the republican, the people are citizens, individual sovereigns, all clothed with equal power, to make and unmake both their laws and law makers, and the moment you deprive a person of his right to a voice in the government, you degrade him from the status of a citizen of the republic, to that of a subject, and it matters very little to him whether his monarch be an individual tyrant, as is the Czar of Russia, or a 15,000,000 headed monster, as here in the United States; he is a powerless subject, serf or slave; not a free and independent citizen in any sense. But, it is urged, the use of the masculine pronouns he, his and him, in all the constitutions and laws, is proof that only men were meant to be included in their provisions. If you insist on this version of the letter of the law, we shall insist that you be consistent, and accept the other horn of the dilemma, which would compel you to exempt women from taxation for the support of the government, and from penalties for the violation of laws. A year and a half ago I was at Walla Walla, Washington Territory. I saw there a theatrical company, called the "Pixley Sisters," playing before crowded houses, every night of the whole week of the territorial fair. The eldest of those three fatherless girls was scarce eighteen. Yet every night a United States officer stretched out his long fingers, and clutched six dollars of the proceeds of the exhibitions of those orphan girls, who, but a few years before, were half starvelings in the streets of Olympia, the capital of that far-off north-west territory. So the poor widow, who keeps a boarding house, manufactures shirts, or sells apples and peanuts on the street corners of our cities, is compelled to pay taxes from her scanty pittance. I would that the women of this republic, at once, resolve, never again to submit to taxation, until their right to vote be recognized. Miss Sarah E. Wall, of Worcester, Mass., twenty years ago, took this position. For several years, the officers of the law distrained her property, and sold it to meet the necessary amount; still she persisted, and would not yield an iota, though every foot of her lands should be struck off under the hammer. And now, for several years, the assessor has left her name off the tax list, and the collector passed her by without a call. Mrs. J.S. Weeden, of Viroqua, Wis., for the past six years, has refused to pay her taxes, though the annual assessment is $75. Mrs. Ellen Van Valkenburg, of Santa Cruz, Cal., who sued the County Clerk for refusing to register her name, declares she will never pay another dollar of tax until allowed to vote; and all over the country, women property holders are waking up to the injustice of taxation without representation, and ere long will refuse, _en masse_, to submit to the imposition. There is no she, or her, or hers, in the tax laws. The statute of New York reads: "Every person shall be assessed in the town or ward where _he_ resides when the assessment is made, for the lands owned by _him_, &c." "Every collector shall call at least once on the person taxed, or at _his_ usual place of residence, and shall demand payment of the taxes charged on _him_. If any one shall refuse to pay the tax imposed on _him_, the collector shall levy the same by distress and sale of _his_ property." The same is true of all the criminal laws: "No person shall be compelled to be a witness against _himself_, &c." The same with the law of May 31st, 1870, the 19th section of which I am charged with having violated; not only are all the pronouns in it masculine, but everybody knows that that particular section was intended expressly to hinder the rebels from voting. It reads "If any person shall knowingly vote without _his_ having a lawful right," &c. Precisely so with all the papers served on me--the U.S. Marshal's warrant, the bail-bond, the petition for habeas corpus, the bill of indictment--not one of them had a feminine pronoun printed in it; but, to make them applicable to me, the Clerk of the Court made a little carat at the left of "he" and placed an "s" over it, thus making _she_ out of _he_. Then the letters "is" were scratched out, the little carat under and "er" over, to make _her_ out of _his_, and I insist if government officials may thus manipulate the pronouns to tax, fine, imprison and hang women, women may take the same liberty with them to secure to themselves their right to a voice in the government. So long as any classes of men were denied their right to vote, the government made a show of consistency, by exempting them from taxation. When a property qualification of $250 was required of black men in New York, they were not compelled to pay taxes, so long as they were content to report themselves worth less than that sum; but the moment the black man died, and his property fell to his widow or daughter, the black woman's name would be put on the assessor's list, and she be compelled to pay taxes on the same property exempted to her husband. The same is true of ministers in New York. So long as the minister lives, he is exempted from taxation on $1,500 of property, but the moment the breath goes out of his body, his widow's name will go down on the assessor's list, and she will have to pay taxes on the $1,500. So much for the special legislation in favor of women. In all the penalties and burdens of the government, (except the military,) women are reckoned as citizens, equally with men. Also, in all the privileges and immunities, save those of the jury box and ballot box, the two fundamental privileges on which rest all the others. The United States government not only taxes, fines, imprisons and hangs women, but it allows them to pre-empt lands, register ships, and take out passport and naturalization papers. Not only does the law permit single women and widows to the right of naturalization, but Section 2 says: "A married woman may be naturalized without the concurrence of her husband." (I wonder the fathers were not afraid of creating discord in the families of foreigners); and again: "When an alien, having complied with the law, and declared his intention to become a citizen, dies before he is actually naturalized, his widow and children shall be considered citizens, entitled to all rights and privileges as such, on taking the required oath." If a foreign born woman by becoming a naturalized citizen, is entitled to all the rights and privileges of citizenship, is not a native born woman, by her national citizenship, possessed of equal rights and privileges? The question of the masculine pronouns, yes and nouns, too, has been settled by the United States Supreme Court, in the Case of _Silver versus Ladd_, December, 1868, in a decision as to whether a woman was entitled to lands, under the Oregon donation law of 1850. Elizabeth Cruthers, a widow, settled upon a claim, and received patents. She died, and her son was heir. He died. Then Messrs. Ladd & Nott took possession, under the general pre-emption law, December, 1861. The administrator, E.P. Silver, applied for a writ of ejectment at the land office in Oregon City. Both the Register and Receiver decided that an unmarried woman could not hold land under that law. The Commissioner of the General Land Office, at Washington, and the Secretary of the Interior, also gave adverse opinions. Here patents were issued to Ladd & Nott, and duly recorded. Then a suit was brought to set aside Ladd's patent, and it was carried through all the State Courts and the Supreme Court of Oregon, each, in turn, giving adverse decisions. At last, in the United States Supreme Court, Associate Justice Miller reversed the decisions of all the lower tribunals, and ordered the land back to the heirs of Mrs. Cruthers. The Court said: "In construing a benevolent statute of the government, made for the benefit of its own citizens, inviting and encouraging them to settle on its distant public lands, the words 'single man,' and 'unmarried man' may, especially if aided by the context and other parts of the statute, be taken in a generic sense. Held, accordingly, that the Fourth Section of the Act of Congress, of September 27th, 1850, granting by way of donation, lands in Oregon Territory, to every white settler or occupant, American half-breed Indians included, embraced within the term _single man_ an _unmarried woman_." And the attorney, who carried this question to its final success, is now the United States senator elect from Oregon, Hon. J.H. Mitchell, in whom the cause of equal rights to women has an added power on the floor of the United States Senate. Though the words persons, people, inhabitants, electors, citizens, are all used indiscriminately in the national and state constitutions, there was always a conflict of opinion, prior to the war, as to whether they were synonymous terms, as for instance: "_No person_ shall be a _representative_ who shall not have been seven years a _citizen_, and who shall not, when elected, be an _inhabitant_ of that state in which he is chosen. No _person_ shall be a senator who shall not have been a _citizen_ of the United States, and an _inhabitant_ of that state in which he is chosen." But, whatever room there was for a doubt, under the old regime, the adoption of the fourteenth amendment settled that question forever, in its first sentence: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." And the second settles the equal status of all persons--all citizens: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The only question left to be settled, now, is: Are women persons? And I hardly believe any of our opponents will have the hardihood to say they are not. Being persons, then, women are citizens, and no state has a right to make any new law, or to enforce any old law, that shall abridge their privileges or immunities. Hence, every discrimination against women in the constitutions and laws of the several states, is to-day null and void, precisely as is every one against negroes. Is the right to vote one of the privileges or immunities of citizens? I think the disfranchised ex-rebels, and the ex-state prisoners will all agree with me, that it is not only one of them, but the one without which all the others are nothing. Seek first the kingdom of the ballot, and all things else shall be given thee, is the political injunction. Webster, Worcester and Bouvier all define citizen to be a person, in the United States, entitled to vote and hold office. Prior to the adoption of the thirteenth amendment, by which slavery was forever abolished, and black men transformed from property to persons, the judicial opinions of the country had always been in harmony with these definitions. To be a person was to be a citizen, and to be a citizen was to be a voter. Associate Justice Washington, in defining the privileges and immunities of the citizen, more than fifty years ago, said: "they included all such privileges as were fundamental in their nature. And among them is the right to exercise the elective franchise, and to hold office." Even the "Dred Scott" decision, pronounced by the abolitionists and republicans infamous, because it virtually declared "black men had no rights white men were bound to respect," gave this true and logical conclusion, that to be one of the people was to be a citizen and a voter. Chief Judge Daniels said: "There is not, it is believed, to be found in the theories of writers on government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been considered as conferring the actual possession and enjoyment of the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political." Associate Justice Taney said: "The words 'people of the United States,' and 'citizens,' are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government, through their representatives. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty." Thus does Judge Taney's decision, which was such a terrible ban to the black man, while he was a slave, now, that he is a person, no longer property, pronounce him a citizen, possessed of an entire equality of privileges, civil and political. And not only the black man, but the black woman, and all women as well. And it was not until after the abolition of slavery, by which the negroes became free men, hence citizens, that the United States Attorney, General Bates, rendered a contrary opinion. He said: "The constitution uses the word 'citizen' only to express the political quality, (not equality mark,) of the individual in his relation to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligations of allegiance on the one side, and protection on the other. The phrase, 'a citizen of the United States,' without addition or qualification, means neither more nor less than a member of the nation." Then, to be a citizen of this republic, is no more than to be a subject of an empire. You and I, and all true and patriotic citizens must repudiate this base conclusion. We all know that American citizenship, without addition or qualification, means the possession of equal rights, civil and political. We all know that the crowning glory of every citizen of the United States is, that he can either give or withhold his vote from every law and every legislator under the government. Did "I am a Roman citizen," mean nothing more than that I am a "member" of the body politic of the republic of Rome, bound to it by the reciprocal obligations of allegiance on the one side, and protection on the other? Ridiculously absurd question, you say. When you, young man, shall travel abroad, among the monarchies of the old world, and there proudly boast yourself an "American citizen," will you thereby declare yourself neither more nor less than a "member" of the American nation? And this opinion of Attorney General Bates, that a black citizen was not a voter, made merely to suit the political exigency of the republican party, in that transition hour between emancipation and enfranchisement, was no less infamous, in spirit or purpose, than was the decision of Judge Taney, that a black man was not one of the people, rendered in the interest and at the behest of the old democratic party, in its darkest hour of subjection to the slave power. Nevertheless, all of the adverse arguments, adverse congressional reports and judicial opinions, thus far, have been based on this purely partisan, time-serving opinion of General Bates, that the normal condition of the citizen of the United States is that of disfranchisement. That only such classes of citizens as have had special legislative guarantee have a legal right to vote. And if this decision of Attorney General Bates was infamous, as against black men, but yesterday plantation slaves, what shall we pronounce upon Judge Bingham, in the house of Representatives, and Carpenter, in the Senate of the United States, for citing it against the women of the entire nation, vast numbers of whom are the peers of those honorable gentlemen, themselves, in morals!! intellect, culture, wealth, family--paying taxes on large estates, and contributing equally with them and their sex, in every direction, to the growth, prosperity and well-being of the republic? And what shall be said of the judicial opinions of Judges Carter, Jameson, McKay and Sharswood, all based upon this aristocratic, monarchial idea, of the right of one class to govern another? I am proud to mention the names of the two United States Judges who have given opinions honorable to our republican idea, and honorable to themselves--Judge Howe, of Wyoming Territory, and Judge Underwood, of Virginia. The former gave it as his opinion a year ago, when the Legislature seemed likely to revoke the law enfranchising the women of that territory, that, in case they succeeded, the women would still possess the right to vote under the fourteenth amendment. Judge Underwood, of Virginia, in noticing the recent decision of Judge Carter, of the Supreme Court of the District of Columbia, denying to women the right to vote, under the fourteenth and fifteenth amendment, says; "If the people of the United States, by amendment of their constitution, could expunge, without any explanatory or assisting legislation, an adjective of five letters from all state and local constitutions, and thereby raise millions of our most ignorant fellow-citizens to all of the rights and privileges of electors, why should not the same people, by the same amendment, expunge an adjective of four letters from the same state and local constitutions, and thereby raise other millions of more educated and better informed citizens to equal rights and privileges, without explanatory or assisting legislation?" If the fourteenth amendment does not secure to all citizens the right to rote, for what purpose was that grand old charter of the fathers lumbered with its unwieldy proportions? The republican party, and Judges Howard and Bingham, who drafted the document, pretended it was to do something for black men; and if that something was not to secure them in their right to vote and hold office, what could it have been? For, by the thirteenth amendment, black men had become people, and hence were entitled to all the privileges and immunities of the government, precisely as were the women of the country, and foreign men not naturalized. According to Associate Justice Washington, they already had the "Protection of the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may justly prescribe for the general welfare of the whole; the right of a citizen of one state to pass through or to reside in any other state for the purpose of trade, agriculture, professional pursuit, or otherwise; to claim the benefit of the writ of habeas corpus, to institute and maintain actions of any kind in the courts of the state; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the state." Thus, you see, those newly freed men were in possession of every possible right, privilege and immunity of the government, except that of suffrage, and hence, needed no constitutional amendment for any other purpose. What right, I ask you, has the Irishman the day after he receives his naturalization papers that he did not possess the day before, save the right to vote and hold office? And the Chinamen, now crowding our Pacific coast, are in precisely the same position. What privilege or immunity has California or Oregon the constitutional right to deny them, save that of the ballot? Clearly, then, if the fourteenth amendment was not to secure to black men their right to vote, it did nothing for them, since they possessed everything else before. But, if it was meant to be a prohibition of the states, to deny or abridge their right to vote--which I fully believe--then it did the same for all persons, white women included, born or naturalized in the United States; for the amendment does not say all male persons of African descent, but all persons are citizens. The second section is simply a threat to punish the states, by reducing their representation on the floor of Congress, should they disfranchise any of their male citizens, on account of color, and does not allow of the inference that the states may disfranchise from any, or all other causes; nor in any wise weaken or invalidate the universal guarantee of the first section. What rule of law or logic would allow the conclusion, that the prohibition of a crime to one person, on severe pains and penalties, was a sanction of that crime to any and all other persons save that one? But, however much the doctors of the law may disagree, as to whether people and citizens, in the original constitution, were one and the same, or whether the privileges and immunities in the fourteenth amendment include the right of suffrage, the question of the citizen's right to vote is settled forever by the fifteenth amendment. "The citizen's right to vote shall not be denied by the United States, nor any state thereof; on account of race, color, or previous condition of servitude." How can the state deny or abridge the right of the citizen, if the citizen does not possess it? There is no escape from the conclusion, that to vote is the citizen's right, and the specifications of race, color, or previous condition of servitude can, in no way, impair the force of the emphatic assertion, that the citizen's right to vote shall not be denied or abridged. The political strategy of the second section of the fourteenth amendment, failing to coerce the rebel states into enfranchising their negroes, and the necessities of the republican party demanding their votes throughout the South, to ensure the re-election of Grant in 1872, that party was compelled to place this positive prohibition of the fifteenth amendment upon the United States and all the states thereof. If we once establish the false principle, that United States citizenship does not carry with it the right to vote in every state in this Union, there is no end to the petty freaks and cunning devices, that will be resorted to, to exclude one and another class of citizens from the right of suffrage. It will not always be men combining to disfranchise all women; native born men combining to abridge the rights of all naturalized citizens, as in Rhode Island. It will not always be the rich and educated who may combine to cut off the poor and ignorant; but we may live to see the poor, hardworking, uncultivated day laborers, foreign and native born, learning the power of the ballot and their vast majority of numbers, combine and amend state constitutions so as to disfranchise the Vanderbilts and A.T. Stewarts, the Conklings and Fentons. It is a poor rule that won't work more ways than one. Establish this precedent, admit the right to deny suffrage to the states, and there is no power to foresee the confusion, discord and disruption that may await us. There is, and can be, but one safe principle of government--equal rights to all. And any and every discrimination against any class, whether on account of color, race, nativity, sex, property, culture, can but imbitter and disaffect that class, and thereby endanger the safety of the whole people. Clearly, then, the national government must not only define the rights of citizens, but it must stretch out its powerful hand and protect them in every state in this Union. But if you will insist that the fifteenth amendment's emphatic interdiction against robbing United States citizens of their right to vote, "on account of race, color, or previous condition of servitude," is a recognition of the right, either of the United States, or any state, to rob citizens of that right, for any or all other reasons, I will prove to you that the class of citizens for which I now plead, and to which I belong, may be, and are, by all the principles of our government, and many of the laws of the states, included under the term "previous condition of servitude." First.--The married women and their legal status. What is servitude? "The condition of a slave." What is a slave? "A person who is robbed of the proceeds of his labor; a person who is subject to the will of another." By the law of Georgia, South Carolina, and all the states of the South, the negro had no right to the custody and control of his person. He belonged to his master. If he was disobedient, the master had the right to use correction. If the negro didn't like the correction, and attempted to run away, the master had a right to use coercion to bring him back. By the law of every state in this Union to-day, North as well as South, the married woman has no right to the custody and control of her person. The wife belongs to her husband; and if she refuses obedience to his will, he may use moderate correction, and if she doesn't like his moderate correction, and attempts to leave his "bed and board," the husband may use moderate coercion to bring her back. The little word "moderate," you see, is the saving clause for the wife, and would doubtless be overstepped should her offended husband administer his correction with the "cat-o'-nine-tails," or accomplish his coercion with blood-hounds. Again, the slave had no right to the earnings of his hands, they belonged to his master; no right to the custody of his children, they belonged to his master; no right to sue or be sued, or testify in the courts. If he committed a crime, it was the master who must sue or be sued. In many of the states there has been special legislation, giving to married women the right to property inherited, or received by bequest, or earned by the pursuit of any avocation outside of the home; also, giving her the right to sue and be sued in matters pertaining to such separate property; but not a single state of this Union has ever secured the wife in the enjoyment of her right to the joint ownership of the joint earnings of the marriage copartnership. And since, in the nature of things, the vast majority of married women never earn a dollar, by work outside of their families, nor inherit a dollar from their fathers, it follows that from the day of their marriage to the day of the death of their husbands, not one of them ever has a dollar, except it shall please her husband to _let_ her have it. In some of the states, also, there have been laws passed giving to the mother a joint right with the father in the guardianship of the children. But twenty years ago, when our woman's rights movement commenced, by the laws of the State of New York, and all the states, the father had the sole custody and control of the children. No matter if he were a brutal, drunken libertine, he had the legal right, without the mother's consent, to apprentice her sons to rumsellers, or her daughters to brothel keepers. He could even will away an unborn child, to some other person than the mother. And in many of the states the law still prevails, and the mothers are still utterly powerless under the common law. I doubt if there is, to-day, a State in this Union where a married woman can sue or be sued for slander of character, and until quite recently there was not one in which she could sue or be sued for injury of person. However damaging to the wife's reputation any slander may be, she is wholly powerless to institute legal proceedings against her accuser, unless her husband shall join with her; and how often have we heard of the husband conspiring with some outside barbarian to blast the good name of his wife? A married woman cannot testify in courts in cases of joint interest with her husband. A good farmer's wife near Earlville, Ill., who had all the rights she wanted, went to a dentist of the village and had a full set of false teeth, both upper and under. The dentist pronounced them an admirable fit, and the wife declared they gave her fits to wear them; that she could neither chew nor talk with them in her mouth. The dentist sued the husband; his counsel brought the wife as witness; the judge ruled her off the stand, saying "a married woman cannot be a witness in matters of joint interest between herself and her husband." Think of it, ye good wives, the false teeth in your mouths are joint interest with your husbands, about which you are legally incompetent to speak!! If in our frequent and shocking railroad accidents a married woman is injured in her person, in nearly all of the States, it is her husband who must sue the company, and it is to her husband that the damages, if there are any, will be awarded. In Ashfield, Mass., supposed to be the most advanced of any State in the Union in all things, humanitarian as well as intellectual, a married woman was severely injured by a defective sidewalk. Her husband sued the corporation and recovered $13,000 damages. And those $13,000 belong to him _bona fide_; and whenever that unfortunate wife wishes a dollar of it to supply her needs she must ask her husband for it; and if the man be of a narrow, selfish, niggardly nature, she will have to hear him say, every time, "What have you done, my dear, with the twenty-five cents I gave you yesterday?" Isn't such a position, I ask you, humiliating enough to be called "servitude?" That husband, as would any other husband, in nearly every State of this Union, sued and obtained damages for the loss of the services of his wife, precisely as the master, under the old slave regime, would have done, had his slave been thus injured, and precisely as he himself would have done had it been his ox, cow or horse instead of his wife. There is an old saying that "a rose by any other name would smell as sweet," and I submit if the deprivation by law of the ownership of one's own person, wages, property, children, the denial of the right as an individual, to sue and be sued, and to testify in the courts, is not a condition of servitude most bitter and absolute, though under the sacred name of marriage? Does any lawyer doubt my statement of the legal status of married women? I will remind him of the fact that the old common law of England prevails in every State in this Union, except where the Legislature has enacted special laws annulling it. And I am ashamed that not one State has yet blotted from its statute books the old common law of marriage, by which Blackstone, summed up in the fewest words possible, is made to say, "husband and wife are one, and that one is the husband." Thus may all married women, wives and widows, by the laws of the several States, be technically included in the fifteenth amendment's specification of "condition of servitude," present or previous. And not only married women, but I will also prove to you that by all the great fundamental principles of our free government, the entire womanhood of the nation is in a "condition of servitude" as surely as were our revolutionary fathers, when they rebelled against old King George. Women are taxed without representation, governed without their consent, tried, convicted and punished without a jury of their peers. And is all this tyranny any less humiliating and degrading to women under our democratic-republican government to-day than it was to men under their aristocratic, monarchical government one hundred years ago? There is not an utterance of old John Adams, John Hancock or Patrick Henry, but finds a living response in the soul of every intelligent, patriotic woman of the nation. Bring to me a common-sense woman property holder, and I will show you one whose soul is fired with all the indignation of 1776 every time the tax-gatherer presents himself at her door. You will not find one such but feels her condition of servitude as galling as did James Otis when he said: "The very act of taxing exercised over those who are not represented appears to me to be depriving them of one of their most essential rights, and if continued, seems to be in effect an entire disfranchisement of every civil right. For, what one civil right is worth a rush after a man's property is subject to be taken from him at pleasure without his consent? If a man is not his own assessor in person, or by deputy, his liberty is gone, or he is wholly at the mercy of others." What was the three-penny tax on tea, or the paltry tax on paper and sugar to which our revolutionary fathers were subjected, when compared with the taxation of the women of this Republic? The orphaned Pixley sisters, six dollars a day, and even the women, who are proclaiming the tyranny of our taxation without representation, from city to city throughout the country, are often compelled to pay a tax for the poor privilege of defending our rights. And again, to show that disfranchisement was precisely the slavery of which the fathers complained, allow me to cite to you old Ben. Franklin, who in those olden times was admitted to be good authority, not merely in domestic economy, but in political as well; he said: "Every man of the commonalty, except infants, insane persons and criminals, is of common right and the law of God, a freeman and entitled to the free enjoyment of liberty. That liberty or freedom consists in having an actual share in the appointment of those who are to frame the laws, and who are to be the guardians of every man's life, property and peace. For the all of one man is as dear to him as the all of another; and the poor man has an equal right, but more need to have representatives in the Legislature than the rich one. That they who have no voice or vote in the electing of representatives, do not enjoy liberty, but are absolutely enslaved to those who have votes and their representatives; for to be enslaved is to have governors whom other men have set over us, and to be subject to laws made by the representatives of others, without having had representatives of our own to give consent in our behalf." Suppose I read it with the feminine gender: "That women who have no voice nor vote in the electing of representatives, do not enjoy liberty, but are absolutely enslaved to men who have votes and their representatives; for to be enslaved is to have governors whom men have set over us, and to be subject to the laws made by the representatives of men, without having representatives of our own to give consent in our behalf." And yet one more authority; that of Thomas Paine, than whom not one of the Revolutionary patriots more ably vindicated the principles upon which our government is founded: "The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce man to a state of slavery; for slavery consists in being subject to the will of another; and he that has not a vote in the election of representatives is in this case. The proposal, therefore, to disfranchise any class of men is as criminal as the proposal to take away property." Is anything further needed to prove woman's condition of servitude sufficiently orthodox to entitle her to the guaranties of the fifteenth amendment? Is there a man who will not agree with me, that to talk of freedom without the ballot, is mockery--is slavery--to the women of this Republic, precisely as New England's orator Wendell Phillips, at the close of the late war, declared it to be to the newly emancipated black men? I admit that prior to the rebellion, by common consent, the right to enslave, as well as to disfranchise both native and foreign born citizens, was conceded to the States. But the one grand principle, settled by the war and the reconstruction legislation, is the supremacy of national power to protect the citizens of the United States in their right to freedom and the elective franchise, against any and every interference on the part of the several States. And again and again, have the American people asserted the triumph of this principle, by their overwhelming majorities for Lincoln and Grant. The one issue of the last two Presidential elections was, whether the fourteenth and fifteenth amendments should be considered the irrevocable will of the people; and the decision was, they shall be--and that it is not only the right, but the duty of the National Government to protect all United States citizens in the full enjoyment and free exercise of all their privileges and immunities against any attempt of any State to deny or abridge. And in this conclusion Republicans and Democrats alike agree. Senator Frelinghuysen said: "The heresy of State rights has been completely buried in these amendments, that as amended, the Constitution confers not only national but State citizenship upon all persons born or naturalized within our limits." The Call for the national Republican convention said: "Equal suffrage has been engrafted on the national Constitution; the privileges and immunities of American citizenship have become a part of the organic law." The national Republican platform said: "Complete liberty and exact equality in the enjoyment of all civil, political and public rights, should be established and maintained throughout the Union by efficient and appropriate State and federal legislation." If that means anything, it is that Congress should pass a law to require the States to protect women in their equal political rights, and that the States should enact laws making it the duty of inspectors of elections to receive women's votes on precisely the same conditions they do those of men. Judge Stanley Mathews--a substantial Ohio democrat--in his preliminary speech at the Cincinnati convention, said most emphatically: "The constitutional amendments have established the political equality of all citizens before the law." President Grant, in his message to Congress March 30th, 1870, on the adoption of the fifteenth amendment, said: "A measure which makes at once four millions of people voters, is indeed a measure of greater importance than any act of the kind from the foundation of the Government to the present time." How could _four_ millions negroes be made voters if _two_ millions were not included? The California State Republican convention said: "Among the many practical and substantial triumphs of the principles achieved by the Republican party during the past twelve years, it enumerated with pride and pleasure, the prohibiting of any State from abridging the privileges of any citizen of the Republic, the declaring the civil and political equality of every citizen, and the establishing all these principles in the federal constitution by amendments thereto, as the permanent law." Benjamin F. Butler, in a recent letter to me, said: "I do not believe anybody in Congress doubts that the Constitution authorizes the right of women to vote, precisely as it authorizes trial by jury and many other like rights guaranteed to citizens." And again, General Butler said: "It is not laws we want; there are plenty of laws--good enough, too. Administrative ability to enforce law is the great want of the age, in this country especially. Everybody talks of law, law. If everybody would insist on the enforcement of law, the government would stand on a firmer basis, and questions would settle themselves." And it is upon this just interpretation of the United States Constitution that our National Woman Suffrage Association which celebrates the twenty-fifth anniversary of the woman's rights movement in New York on the 6th of May next, has based all its arguments and action the past five years. We no longer petition Legislature or Congress to give us the right to vote. We appeal to the women everywhere to exercise their too long neglected "citizen's right to vote." We appeal to the inspectors of election everywhere to receive the votes of all United States citizens as it is their duty to do. We appeal to United States commissioners and marshals to arrest the inspectors who reject the names and votes of United States citizens, as it is their duty to do, and leave those alone who, like our eighth ward inspectors, perform their duties faithfully and well. We ask the juries to fail to return verdicts of "guilty" against honest, law-abiding, tax-paying United States citizens for offering their votes at our elections. Or against intelligent, worthy young men, inspectors of elections, for receiving and counting such citizens' votes. We ask the judges to render true and unprejudiced opinions of the law, and wherever there is room for a doubt to give its benefit on the side of liberty and equal rights to women, remembering that "the true rule of interpretation under our national constitution, especially since its amendments, is that anything for human rights is constitutional, everything against human rights unconstitutional." And it is on this line that we propose to fight our battle for the ballot--all peaceably, but nevertheless persistently through to complete triumph, when all United States citizens shall be recognized as equals before the law. SPEECH OF MATILDA JOSLYN GAGE, In Canandaigua and 16 other towns of Ontario county, previous to Miss Anthony's Trial, June 17th, 1873. THE UNITED STATES ON TRIAL; _not_ SUSAN B. ANTHONY. Governments derive their just powers from the consent of the governed. That is the axiom of our republic. From this axiom we understand that powers used by the government without the consent of the governed, are _not just_ powers, but that on the contrary, they are _unjust_ powers, _usurped_ powers, _illegal_ powers. In what way does the consent of the governed come? By and through the ballot alone. The ballot answers questions. It says yes, or no. It declares what _principles_ shall rule; it says what _laws_ shall be made, it tells what _taxes_ are to be raised; it places men in office or lays their heads low in the dust. It is the _will_ of a man embodied in that little piece of paper; it is the consent of the governed. Are women governed? Most certainly; they pay taxes,--they are held amenable to laws; they are tried for crimes; they are fined, imprisoned, hung. The government wields strong power over them. Have they consented to this power of the government? Have they a recognized right to the ballot? Has their consent bean asked through their votes? Have they had a voice in saying what taxes shall be levied on their property,--what penalties they shall pay for crimes? _No._ They are ruled without their consent. The first principles of government are founded on the natural rights of individuals; in order to _secure_ the exercise of these natural, individual rights our government professed to be founded. Governments never created a single right; rights did not come new-born into the world with our revolutionary fathers. They were men of middle age when they severed their connexion with Great Britain, but that severance did not endow them with a single new right. It was at that time they first entered into the _exercise_ of their natural, individual rights. Neither our Declaration, nor our Constitution created a single right; they merely recognized certain rights as in existence. They recognized those rights as human rights,--as inalienable rights,--as rights existing by virtue of common humanity. Natural rights never change, but the power to perceive these natural rights does change, and various nations have had their own standard. Three names, said to be the sweetest the world ever knew, are mother, home, and heaven. There is one still sweeter--one for which men have given up mother and home, and for which they have almost sacrificed the hope of heaven; that word is LIBERTY. When the fires of liberty began to creep through Europe in the middle ages, at a time when hereditary monarchs and the catholic church ruled the world, men placed its safeguards in municipal corporations. The idea of municipal corporations descended from Rome to the rest of Europe, and "free cities" became the germ of personal freedom. But a new world was needed for the great experiment of individual freedom. Macauley calls government an experimental science and therefore a progressive science; history shows this to be true. Liberty did not spring "full armed" like Minerva from the head of Jove. The liberty possessed by the world has been gradually secured, and it was left for our country first to incorporate in its foundation a recognition of individual rights. A hundred years before the revolutionary war, Massachusetts and Virginia resisted English tyranny. Massachusetts, in 1664, called herself a "perfect republic." She preserved a neutral harbor by force of arms against opposing English factions; she enacted laws against the supremacy of the English parliament, and she established her own mint. This last is noticeable, as in the progress of liberty, rights of property, of which money is the exponent, have always been one of the foremost. Bancroft says Virginia was always a land of liberty; that Virginia placed the defense of liberty not in municipal corporations, _but in persons_, and that the liberty of the individual was ever highly prized. The difference between a monarchy and a republic is the difference between force and consent; it is the difference between being governed and governing yourself; it is the difference between the _men_ of Russia and the _men_ of the United States; it is the difference between the political rights of one man as the government and the political rights of the people as the government. But the world has never yet seen a true republic, though it has for hundreds of years been taking steps towards one. The original principles of just governments are five, all of which were acknowledged by the United States at its foundation. These principles are: _First._ The natural right of each individual to self-government. _Second._ The exact equality of these rights. _Third._ That these rights when not delegated by the individual, are retained by the individual. _Fourth._ That no person can exercise these rights of others without delegated authority. _Fifth._ That the non-use of these rights does not destroy them. These five underlying principles are the admitted basis of all governmental rights, and the old revolutionists acted upon them. They were men of middle life; they were under an old and established form of government to which they had not delegated authority, and during all these years they had made no use of their natural, equal rights. When they chose to assume the exercise of these rights, they at once took them up. The women of that day were no less in earnest than were the men. Mercy Otis Warren, sister of that James Otis whose fiery words did so much towards rousing the colonies, was herself no less in earnest, had no less influence than her brother. She was a member of the famous committee of correspondence, and was constantly consulted by Adams, Jefferson, Franklin, Hancock, Washington and all the foremost men of that day. Through her lips was first whispered the word, separation. No less active were the women of New England, and in 1770, five years before the breaking out of the revolutionary war, the women of Boston held a public meeting, and formed themselves into a league to resist taxation. As tea was the article upon which Great Britain was then making her stand, in order to sustain the _principle_ of taxation, these women declared they would use no more tea until the tax upon it was repealed. This league was first formed by the married women, but the next day the young women met "in innumerable numbers," and took similar action. They expressly stated, they did not do this so much for themselves, as for the benefit of their posterity. In the country, the women of that hour went abroad over the fields and sowed their tea, as men sow wheat. This action of the women of the revolution was taken three years before the famous Tea Party of Boston harbor, and was the real origin of that "Tea Party." The women of the present day, the "posterity" of these women of the revolution, are now following the example then set, and are protesting against taxation without representation. A few weeks ago I attended a meeting of the tax-paying women of Rochester who met in the Mayor's office in that city, and there, like their revolutionary mothers, formed a league against taxation without representation. Meetings for the discussion of measures are regularly held by them, and they have issued an address, which I will read you. _To the Women of the City of Rochester and the County of Monroe_: After twenty-five years of discussion, appeal and work, the Women of Rochester assembled, are prompted to advise and urge tax-paying women of the City and County, that the time has come to act, as our patriot mothers acted in 1770, _in protest against unjust government_, and the action appropriate and suited to the time, is strong and earnest protest against the violation of the Republican principles, which compels the payment of taxes by women, while they are denied the ballot. By order of "THE WOMEN TAX PAYERS' ASSOCIATION of the City of Rochester and County of Monroe." They have also issued this memorial and protest, addressed _To the Board of Supervisors of the County of Monroe, and to the Hon. the Common Council of the City of Rochester_: The payment of taxes is exacted in direct violation of the principles that "Governments derive their just powers from the consent of the governed," and that "there shall be no taxation without representation." Therefore we earnestly protest against the payment of taxes, either Municipal, County, or State, until the ballot secures us in the right of representation, just and equal with other citizens. By order of "THE WOMEN TAX PAYERS' ASSOCIATION of the City of Rochester and County of Monroe." Thus women are everywhere going back to fundamental principles, and this action of the women of Rochester is but the commencement of a protest which will soon become a resistance, and which will extend from the St. Lawrence to the Gulf of Mexico, from the Atlantic to the Pacific. The women of the city of Rochester pay taxes on seven millions of property, and yet not one of these tax payers is consulted as to how, or when that tax shall be raised, or for what purpose used. This seven millions is but a small proportion of property on which the women of that city really pay taxes, as it does not include that much larger amount of property of which they have been robbed, and over which they are assumed to have no control. The foundation of a new city hall has recently been laid in that city. Women's property, without their consent, has been used for this purpose. Water is soon to be brought in from Hemlock Lake, and a dozen other projects are on foot, all of which require money, and towards all of which, the money of tax-paying women will be taken without their consent. To illustrate the extreme injustice with which women are treated in this matter of taxation, to show you how contrary it is to all natural right, let us suppose that all the taxable property in the city of Rochester belonged to women, with the exception of a single small house and lot, which were owned by a man. As the law is now interpreted, the man who owned that house and lot could vote a tax upon the property of all those women at his own will, to build CITY HALLS, COURT HOUSES, JAILS, could call an election and vote an extraordinary tax to bring in water from a dozen different lakes, erect fountains at every corner, fence in twenty parks, vote himself in, Mayor, Alderman, Assessor, Collector with a fat salary from these women's money, attached to each one of these offices, and in the end elect himself the sole policeman of the city, to protect the women from--himself; and this you call just government. It is no more unjust, no more unrepublican, to take the property of fifty, or a hundred, or a thousand women in this way, than it would be to take the property of a single one; the principle is still the same. The women of to-day, protest, as did their fore-mothers, for principle. Women come into the world endowed with the same natural rights as men, and this by virtue of their common humanity, and when prevented or restrained from their exercise, they are enslaved. Old Ben Franklin once said, "those that have no vote or voice in the laws, or the election of those who administer them, do not enjoy liberty, but are _absolutely enslaved_ to those who have votes, and their representatives." That sentiment is as true to-day as when uttered. While the women of this nation are restrained from the exercise of their natural rights of self-government, they are held enslaved to those who do administer the laws. Said an old minister of revolutionary fame, "One who is bound to obey the will of another is as really a slave, though he may have a good master, as if he had a bad one." Those of you who remember Adolph in Uncle Tom's Cabin, will recall his apparent freedom. Dressed in style, wearing his master's garments before the first gloss was off, viewing Uncle Tom, superciliously through his eye glass, he was a petted companion of his master and did not feel his bonds. But one day the scene changed. St. Clair died, and poor Adolph, stripped of all his favors, was dragged off to the vile slave pen. Do you see no parallel between Adolph and the women of America? Adolph was restrained by unjust power from exercise of his natural rights, so are the women of this country, as is most fully shown, by this prosecution and trial of Susan B. Anthony. In this country, two kinds of representation exist, property and personal. Let us look for a moment, at the Constitution of the United States. In three years we celebrate our centennial. From what does it date? Not from the Constitution, as our country existed eleven years without a Constitution,--in fact, thirteen years, before it was ratified by the thirteen colonies. The centennial dates from the declaration of Independence, which was based on underlying principles. But as our government has recognized its own needs, it has thrown new safeguards around liberty. Within a year after the Declaration, it was found necessary to enter into articles of Confederation, and those were soon followed by the Constitution, as it was found property rights were not secure "under the action of thirteen different deliberatives." England has never possessed personal representation, but only that of property; and in the secret proceedings upon the framing of our Constitution, the question as to property, or personal representation was strongly agitated. Some of the delegates favored the fuller representation of property than of persons. Others, who advocated the equality of suffrage, took the matter up on the original principles of government, recognizing the fact that it was not strength, or wisdom, or property, that conferred rights, but that "in a state of nature, before any government is formed, all persons are equally free and independent, no one having any right or authority to exercise power over another," and this, without any regard to difference in personal strength, understanding or wealth. It was also argued, and upon this acknowledgment the Constitution was based, "that when individuals enter into government they have _each_ a right to an equal voice in its first formation, and afterwards have _each_ a right to an equal vote in every matter which relates to their government. That if it could be done conveniently, they have a right to exercise it in person. When it cannot be done in person, but for convenience, representatives are appointed to act for them, every person has a right to an equal vote in choosing that representative, who is intrusted to do for the whole, that which, the whole, if they could assemble, might do in person, and in the transaction of which they would have an equal voice." This was the basis upon which the Constitution was established, and these, the principles which led to its adoption; principles which include the full recognition of each person as possessed of the inalienable right of self-government. The argument for equality was continued in the following strain, as reported by one of the delegates, to the Legislature of Maryland: "That if we were to admit, because a man was more wise, more strong, more wealthy, he should be entitled to more votes than another, it would be inconsistent with the freedom of that other, and would reduce him to slavery." The following illustration was used: "Suppose, for instance, _ten individuals_ in a state of nature, about to enter into government, nine of whom were equally wise, equally strong, equally wealthy, the tenth is ten times as wise, ten times as strong, or ten times as rich; if, for this reason, he is to have ten votes for each vote of the others, the nine might as well have no vote at all, and though the whole nine might assent to the measure, yet the vote of the tenth would countervail, and set aside all their votes. If this tenth approved of what they wished to adopt, it would be well; but if he disapproved, he could prevent it, and in the same manner he could carry into execution any measure he wished, contrary to the opinion of all the others, he having ten votes, and the others altogether but nine. It is evident that on these principles, the nine would have no will or discretion of their own, but must be totally dependent on the will and discretion of the tenth; to him they would be as absolutely slaves as any negro is to his master. If he did not attempt to carry into execution any measures injurious to the other nine, it could only be said that they had a good master; they would not be the less slaves, because they would be totally dependent upon the will of another and not on their own will. They might not feel their chains, but they would notwithstanding wear them; and whenever their master pleased, he might draw them so tight as to gall them to the bone." Again it was urged that though every individual should have a voice in the government, yet even then, superior wealth, strength, or understanding, would give great and undue advantage to those who possessed them. But the point especially pressed in these debates was that each individual before entering into government, was equally free and independent: and therefore the conclusion was drawn that each person had equal right both at the time of framing a government, and also after a government or constitution was framed. To those who with old English ideas, constantly pressed property representation, it was replied that "taxation and representation ought to go together in so far that a person not represented ought not to be taxed." This Constitutional Convention was in session a number of months; its delegates were partially elected by women's votes, as at that date women were exercising their right of self-government through voting, certainly in the States of Massachusetts and New Jersey, if not in Georgia and Delaware. These women sent their delegates or representatives to assist in framing a Constitution. Let us look at the Preamble of that instrument. It reads thus: "We, the PEOPLE of the United States, in order to form a more perfect union, establish _justice_, insure domestic tranquility, provide for the _common_ welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here we have a statement as to _who_ established the Constitution. It was not the thirteen States as States, not the government in its sovereign capacity, but the people: not the white people alone, not the native born alone, not the male people alone, but the people in a collective sense. Justice was not established by this Constitution if one half the people were left out from its provisions, neither was the _common_ welfare considered unless all people in common, equally shared the benefits of the Constitution. And moreover, the posterity of the people of that time are female as well as male. Therefore not only by our knowledge of the course of argument taken by the framers of the Constitution, not only by our knowledge that women as well as men helped elect delegates to that convention,--not only from the original principles proclaimed in the Declaration, but also by and through this Preamble to the Constitution do we find woman equally with man, recognized as part of the governing power. Although women do not rest their claim to self-government upon any human instrument, it is well to show that even in the Declaration, and the original Constitution, the "Constitution as it was," the rights of _all_ people were most emphatically and truly recognized. Judge Story in his commentaries upon the Constitution, says, "The importance of examining _the Preamble_ for the purpose of expounding the language of a Statute has always been felt and universally conceded in all judicial proceedings." _Com. on Const., 1, 443-4._ Chief Justice Jay regarded the Preamble of the Constitution of the United States as an authoritative guide to a correct interpretation of that instrument. 2 _Dallas_, 414. Coke says, "The Preamble of a Statute is a good means to find out the meaning of the Statute, and as it were, a _key_ to the understanding thereof." Blackstone lays it down as a fundamental principle, that we "must argue from generals down to particulars." Here is good legal authority. I have cited men whose opinions are accepted. We have thus argued down from the _generals_ of the Declaration and Constitution to the particulars which appertain to each individual alike, and what is the result? Freedom for all; equal rights. We have read the Preamble of the Constitution, and quoted authorities to show in what light it must be read in reference to its following provisions. By its Preamble, the Constitution is shown to make no distinction in favor of sex. From secret debates of the convention which framed it, we find the motives and the arguments of its framers. The great foundation and key stone alike of our Republican ideas, _of our Constitution_, is _individual, personal representation_, and it is the greatest blessing to the country at large that the question of representation has come up in the person of Miss Anthony. Men are _compelled_ to think upon underlying principles. They are compelled to ask themselves where they get either natural or constitutional right to govern women. From the earliest ages men have queried among themselves as to where lay the governing power. In the time of Abraham, and even now in some parts of the world the Patriarch of the tribe is looked upon as its supreme ruler. Members of Scottish clans to-day, look with more reverence upon their chief, than upon the Queen: they obey his behests sooner than parliamentary laws. Other men have believed the governing power lay in the hands of a select few, an aristocracy, and that these few men could by right make laws to govern the rest. Others again have believed this power vested in a single man called King, or Czar, or Pope, but it was left to our country, and our age, to promulgate the idea that the governing power lay in the _people themselves_. It took men a great many thousand years to discover this pregnant fact, and although our government laid down at the very first, certain underlying truths, it has taken a very long time even for this country to see, and practice these principles; but as men have opened their eyes to liberty there have been constant advances towards securing its full blessings to each and every individual, and in this progress we had first, the Declaration; second, the Articles of Confederation; third, the Constitution; then the ten Conciliatory Amendments, quickly followed by an eleventh and twelfth, each one of these designed to more fully secure liberty to the people, and making fifteen successive steps in the short period of twenty-eight years. At the time of framing this government women existed as well as men, women are part of the people; the people created the government. Now, when speaking to you to-night, I am speaking to the people of this part of Ontario County, I am not speaking to men alone, I am not speaking to women alone, but to you all as people. When people frame a government the rights not delegated by them to the government, are retained by them, as is declared by the tenth amendment. Now where do men get their constitutional right to govern women? Women have either delegated their right of self-government to certain delegates, by them to be elected according to all the forms of this government, or they have not so delegated their rights of self-government, but have retained them. In either case, according to the genius of our government, what is there to prevent them from exercising these rights any moment they choose, unless it is force? What prevents them unless it is unjust illegal power? The ninth amendment declares that the enumeration of certain rights, shall not be construed to deny, or disparage others retained by the people. Remember what are the foundation principles of just government, principles fully acted upon by the old revolutionists; remember that no government of whatever kind or character can possibly _create_ the right of self-government, but only _recognize_ rights as existent; remember the non-use of a right does not destroy that right. I have a natural right to as much fresh air as I can breathe; if you shut me in a close room with door and windows barred, that does not invalidate my right to breathe pure, fresh air. I have a natural right to obey the dictates of my own conscience, and to worship God as I choose. If you are physically stronger than I am, or if you are legally stronger than I am and use your strength to prevent the exercise of these natural rights, you by no means destroy them. Though I do not use these rights, I still possess them. The framers of this government, the men and the women who voted at that early day had never until then, exercised their natural rights of self-government; when they chose, they took them up. But people tell us it was not the intention to include women. What then was the intention? Did the framers of the Declaration intend to leave women under the government of Great Britain? Did they intend to set themselves and their male compeers free, and leave women behind, under a monarchy? Were not women intended to be included in the benefits of the constitution? Oh, but says some one, they were intended to be generally included, but the amendments had nothing to do with them. Let us look at this. Is it possible to amend a Constitution not in accordance with its underlying principles? It can be repealed, abolished, destroyed, but not _amended; except in accordance with its original character_. The Supreme Court of the United States has declared that the powers of the Constitution are granted by the people, and are to be exercised strictly _on them_, and _for their benefit_. Story asks, "Who are the parties to this great contract?" and answers the question by saying, "The people of the United States are the parties to the Constitution." _Com. on Con._ _Com. on Con. Legal Rules_, 283, says: "This first paragraph of the Constitution, declaring its ends, is the most vital part of the instrument, revealing its spirit and intent, _and the understanding of its framers_." Here we have the recognized legal rule that the understanding or INTENTION of the framers of an instrument is to be found in its first paragraph, and the first paragraph of the Constitution declares it was framed BY THE PEOPLE, and for the purpose of securing the blessings of liberty to themselves and their posterity. The native-born American women of to-day, are the posterity of the framers of the Constitution, which was thus designed for their benefit. The intention to include women is here positive; women are part of the people now, and ever have been. "Rules of legal interpretation are general in their character," and so general has the interpretation of the Constitution been, that not only did the people who framed the Constitution, and their posterity, come in for its blessings, but the people also of every nation and tongue, from continent or isles of the sea, who come to us, are included in its benefits. Who can say our forefathers _intended_ to include Chinamen, or Sandwich Islanders, or the Norwegian, Russian, or Italian in its benefits? Yet they do all share in it as soon as they become citizens. How absurd we should think the assertion that it was not the Lord's intention to hold the people of the United States under the law of the Ten Commandments, as they were given to the Jews alone, some four thousand years before the United States existed as a nation. Massachusetts never abolished slavery by legislative act; never intentionally abolished it. In 1780 that State adopted a new Constitution with a Bill of Rights, declaring "All men born free and equal." Upon this, some slaves demanded their freedom, and their masters granted it. The slavery of men and _women_, both, was thus destroyed in Massachusetts without intention on the part of the framers of the Constitution, and this, because it is a legal rule to argue down from generals to particulars, and that the "words of a statute ought not to be interpreted to destroy natural justice;" but as Coke says, "Whenever the question of liberty runs doubtful, _the decision must be given in favor of liberty_." _Digest C.L._ When a Charter declares "all men born free and equal," it means, intends, and includes all women, too; it means all mankind, and this is the _legal interpretation_ of the language. To go back to the Constitution of the United States, let us examine if women were not intended. The first amendment reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances." No mention is there made of women, but who will deny it was not intended for them to enjoy the right of worshipping as they choose? Were they not to be protected in freedom of speech, and in the right of assembling to petition the government for a redress of grievances? Not a man before me will deny that women were included equally with men in the intention of the framers. The Sixth Amendment reads, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which District shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against _him_; to have compulsory processes for obtaining witnesses in _his_ favor; and to have the existence of counsel in _his_ defense." The words "him" and "his," are three times mentioned in this amendment, yet no one can be found wild enough to say women were not intended to be included in its benefits. Miss Anthony, herself, has already come under its provisions, and were she denied a speedy and open trial, she could appeal to the protection of this very amendment, which not only does not say women, or her, but does alone say _him_ and _his_, and this, notwithstanding the other legal adage, that laws stand as they are written. This whole question of constitutional rights, turns on whether the United States is a nation. If the United States is a nation, it has _national_ powers. What is the admitted basis of our nation? We reply, equality of political rights. And what, again, is the basis of political rights? Citizenship. Nothing more, nothing less. National sovereignty is only founded upon the political sovereignty of the individual, and national rights are merely individual rights in a collective form. The acknowledged basis of rights in each and every one of the thirty-seven States, is citizenship,--not State citizenship alone, as that alone cannot exist, but first, national citizenship. _National_ rights are the fundamental basis of _State_ rights. If this is not true, we are then no nation, but merely a confederacy, held together by our own separate wills, and the South was right in its war of secession. Every sovereign right of the United States exists solely from its existence as a nation. As the nation has grown to know the needs of liberty, it has from time to time thrown new safeguards around it, as I have shown in its fifteen progressive steps since 1776. For sixty years there was no change. Slavery had cast its blight upon our country, and the struggle was for State supremacy. Men forgot the rights, and need of freedom; but in 1861, the climax was reached, and then came the bitter struggle between state and national power. Although our underlying principles were all right, freedom required new guards, and the right of all men to liberty, was put in a new form. An especial statute or amendment was added to our National Constitution, declaring that involuntary servitude, unless for crime, could not exist in this republic. This statute created no new rights; it merely affirmed and elucidated rights as old as creation, and which, in a general way, had been recognized at the very first foundation of our government--even as far back as the old Articles of Association, before the Declaration of Independence. This amendment was the sixteenth step in _securing_ the rights of the people, but it was not enough. Our country differs from every other country, in that we have _two kinds_ of citizenship. First, we have national citizenship, based upon equal political rights. A person born a citizen of the United States, is, by the very circumstances of birth, endowed with certain political rights. In this respect, the circumstances of birth are very different from those of a person born in Great Britain. A person born in Great Britain is not endowed with political rights, simply because born in that country. Political rights in Great Britain are not based upon personal rights; they are based upon property rights. In England, persons are not represented; only property is represented. That is the very great political difference between England and the United States. In the United States, representation is based upon individual, personal rights--therefore, every person born in the United States--_every person_,--not every white person, nor every male person, but every person is born with _political_ rights. The naturalization of foreigners also secures to them the exercise of political rights, because it secures to them citizenship, and they obtain naturalization through _national_ law. The war brought about a distinct and new recognition of the rights of national citizenship. States had assumed to be superior to the nation in this very underlying national basis of voting rights, but when certain States boldly attempted to thwart national power, and vote themselves out of the Union,--when by this attempt they virtually said, there is no nation, a new protection was thrown around individual, personal, political rights, by a seventeenth step, known to the world by the Fourteenth Amendment, which defined, (not created) citizenship. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," thus recognizing United States citizenship as the first and superior citizenship. Miss Anthony was not only _born_ in the United States, but the United States also has jurisdiction over her, as is shown by this suit, under which she was arrested in Rochester, and held there to examination in the same little room in which fugitive slaves were once examined. From Rochester she was taken to Albany, from Albany back to Rochester, and now from Rochester to Canandaigua, where she is soon to be tried. She has thus been fully acknowledged by the United States as one of its citizens, and also as a citizen of the State in which she resides. In order to become a citizen of a State, and enjoy the privileges and immunities of States, a citizen of the United States must reside in a State. Citizenship of the United States secures nothing over the citizenship of other countries, unless it secures the right of self-government. State laws may hereafter regulate suffrage, but the difference between regulating and prohibiting, is as great as the difference between state and national citizenship. The question of the war was the question of State rights; it was the negro, _vs._ State rights, or the power of States over the ballot. The question to-day is, woman, _vs._ United States rights, or the power of the United over the ballot. The moral battle now waging will settle the question of the power of the United States over the rights of citizens. By the civil war, the United States was proven to be stronger than the States. It was proven we were a nation in so far that States were but parts of the whole. The woman question, of which in this pending trial, Miss Anthony stands as the exponent, is to settle the question of United States power over the individual political rights of the people; it is a question of a monarchy or a republic. The United States may usurp power, as did the States, but it has no rights in a sovereign capacity, not given it by the Constitution, or in other words, BY THE PEOPLE. By the Preamble we have discovered _who_ are its people, and for _what purpose_ its Constitution was instituted. Each and every amendment--the first ten, the eleventh, twelfth, thirteenth, fourteenth, and fifteenth, are only parts of the grand whole, and must, each and every one, be examined in the light of the Preamble. Each added amendment makes this change in the status of the People, in that it gives new guaranties of freedom, and removes all pretense of right from any existing usurped power. People are slow to comprehend the change which has been effected by the decision as to State rights. One, claims that only the negro, or persons of African descent, were affected by it. Others claim, and among them, some prominent Republicans, that every civil right is by these amendments, thrown under national control. Recently, two or three suits have come before the United States on this apprehension. One of these, known as the Slaughter House Case, came up from New Orleans in the suit of certain persons against the State of Louisiana. A permit had been given certain parties to erect sole buildings for slaughter, and in other ways control that entire business in the city of New Orleans for a certain number of years. A suit upon it was appealed to the Supreme Court of the United States, on the ground of the change in the power of States, by, and through the last three amendments, and on the supposition that all the civil power of the States had thus been destroyed. The Court decided it had no jurisdiction, though in its decision it proclaimed the far-reaching character of these amendments. In reference to the Thirteenth Amendment, the Court used this language: "We do not say that no one else but the negro can share in this protection. Both the language _and spirit_ of these articles are to have their full and just weight in any question of construction. Undoubtedly while negro slavery alone was in the minds of the Congress which proposed the thirteenth article, it forbids any kind of slavery, now, or hereafter. If Mexican peonage, or the Chinese cooley labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may be safely trusted to make it void." This is the language used by the Supreme Court of the United States in reference to this thirteenth amendment; prohibiting any, _all_, and every kind of slavery, not only now, but in the hereafter, and this, although the decision, also acknowledges the fact that only African slavery _was intended_ to be covered by this amendment. The Court further said, "And so if _other_ rights are assailed by the States, _which properly and necessarily fall within the protection of these articles_, that protection will apply, though the party interested may not be of African descent." What "other rights fall within the protection of these articles?" What "other rights" do these amendments cover? The fourteenth article, after declaring who are citizens of the United States, and of States, still further says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws." This comprises the first section of that amendment. The jurisdiction and protection of the general government applies to United States citizens. By its prosecution of Miss Anthony, the general government acknowledges her as a citizen of the United States, and what is much more, it acknowledges its own jurisdiction over the ballot--over the chief--chief, did I say,--over the _only_ political right of its citizens. This prosecution is an admission of United States jurisdiction, instead of State jurisdiction. This whole amendment, with the exception of the first clause of the first section, which simply declares who are citizens of the United States and States, is directed against the interference of _States_ in the rights of citizens. But in Miss Anthony's case, the State of New York has not interfered with her right to vote. She voted under local laws, and the State said not a word,--has taken no action in the case, consequently the United States has had no occasion to interfere on that ground. The question of _State_ rights was not as great a question as this: What are United States rights? Can the United States, in its sovereign capacity, overthrow the rights of its own citizens? No, it cannot; for the Fifteenth Amendment to the Constitution specifically declares "The right of citizens of the United States _to vote_, shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." This fifteenth Amendment has been seriously misapprehended by many people, who have understood it to mean that _women_ could be excluded from voting, simply because they are women. I have shown you that Statutes and Constitutions are always general in their character; that from generals we must argue down to particulars, and that if there is any doubt as to the interpretation of a statute, it must be defined in the interests of liberty. But as to the interpretation of this statute there can be no doubt. Had it read, "The right of citizens of the United States to take out passports, shall not be denied or abridged by the United States, on account of race, color, or previous condition of servitude," no person would interpret it to mean that such right to take out passport could be denied on account of _female_ sex, or on account of _male_ sex. We will read it now, first in the light of the Declaration; second, in that of the Preamble to the Constitution, and the Constitution itself, and its various amendments, to which I have referred: the first, sixth, ninth and tenth, which would have been interpreted male, had the Constitution meant men alone, but which have always been defined to cover, and include woman--to cover and include the rights of the _whole_ people to freedom of conscience, to freedom of speech, to the right of a speedy and public trial, &c., &c., and this, although in the Sixth Amendment, the terms _him_ and _his_ are alone used. The Courts long ago decided that Statutes were of general bearing, as is fully true of the Declaration and Constitution, which are supreme statutes. The Fifteenth Amendment does not specifically exclude right of male citizens to vote, because they are _male_ citizens, therefore, male citizens are of necessity included in the right of voting. It does not specifically exclude female citizens from the right of voting, because they are female citizens, therefore, female citizens are of necessity included in the right of voting--a right which the United States cannot abridge. No male citizen can claim that he, as a male citizen, is included, save by implication, and save on the general grounds that he is not specifically excluded, he is necessarily included. Can the United States, at pleasure, take from its own citizens the right of voting, or abridge that right? Has it the right to take from citizens of States the right of voting? Are citizens of States simply protected against States, and can the United States now, at will, step in and deny or abridge the right of voting to all its male citizens simply because they are male? If it has that power over its female citizens, it has the same power over its male citizens. You cannot fail to see that the question brought up by Miss Anthony's prosecution and trial _by the United States_ for the act of voting, has developed the most important question of United States rights; a larger, most pregnant, more momentous question by far, than that of _State_ rights. The liberties of the people are much more closely involved when the United States is the aggressor, than when the States are aggressors. "The Act to Enforce the right of citizens to vote," declares that CITIZENS shall be entitled and allowed to vote at all elections by the people, in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial division, &c. This Act was passed _after_ the ratification of the Fifteenth Amendment, and is designed to be in accordance with the Constitution. It does not say _black_ citizens shall be entitled and allowed to vote; it does not say _male_ citizens shall be entitled and allowed to vote--it merely says CITIZENS. It covers the right of women citizens to vote, and yet United States officials claim to find in this very act, their authority for prosecuting Miss Anthony and those fourteen other women citizens of Rochester for the alleged _crime_ of voting. When Miss Anthony voted, what did she do? She merely exercised her citizen's right of suffrage--a right to which she, and all women citizens are entitled by virtue of their citizenship in the nation--a right to which they are entitled because individual political rights are the basis of the government. The United States has no other foundation. If that right is trampled upon, we have no nation. We may hang together in a sort of anarchical way for a time, but our dissolution draws near. Can the United States destroy rights on account of sex? In the original Constitution, before even the first ten amendments were added, States were forbidden to pass bills of attainder. By the fourteenth amendment, the right of voting was forbidden to be abridged, _unless for crime_. Is it a crime to be a woman? "In the beginning God created man, male and female, created he them." A bill of attainder inflicts punishment, creates liabilities or _disabilities_, on account of parentage, _birth_, or descent. Do United States officials presume to create a disability, or inflict a punishment, on account of _birth_ as a woman, and this in direct defiance of the Constitution? When the Constitution of the United States presents no barrier, no lesser power has such authority. "The Constitution of the United States, _and the laws made in pursuance thereof_, shall be the supreme law of the land." Says article sixth: "Any law of Congress not made in pursuance of, or in unison with the Constitution, is an illegal and void law." Coke declared an Act of Parliament against Magna Charta was null and void. But United States officials declare it a crime for a United States citizen to vote. If it is a crime for a native-born citizen, it ought to be a still greater crime for a foreign-born citizen. But the fact that citizenship carries with it the right of voting, is shown in the act of naturalization. A foreigner, after a certain length of residence in this country, proceeds to take out papers of citizenship. To become a citizen, is all that he needs to make of him a voter. At one and the same time he picks up a ballot, and his naturalization papers. Nothing more than his becoming a citizen is needed for him to vote--nothing less will answer. Susan B. Anthony is a native-born citizen. She had to take out no papers to make her a citizen--she was born in the United States--she is educated, intelligent, and FREE BORN. Native-born citizenship is generally conceded to be of more value than that which is bought. Do you not remember that when Paul was brought up, preparatory to being scourged, he demanded by what right they scourged him, a Roman citizen. The chief captain said, "I bought this freedom with a great price." Paul replied, "I am free born"; then great fear fell upon the chief captain, and he ordered the bonds removed from Paul. Native-born Roman citizenship was worth as much as that two thousand years ago. To-day, the foreign-born American citizen, who has bought his freedom with a great price, who has left his home and country, and crossed the sea to a strange land, in order that he may find freedom, is held to be superior to "free born" American women citizens. But Miss Anthony is not battling for herself alone, nor for the woman alone; she stands to-day, the embodiment of Republican principles. The question of to-day, is not has woman a right to vote, but has _any_ American citizen, white or black, native-born, or naturalized, a right to vote. The prosecution of Miss Anthony by the United States, for the alleged crime of having cast a vote at the last election, is a positive declaration of the government of the United States that it is a crime to vote. Let that decision be affirmed, and we have no republic; the ballot, the governing power in the hands of every person, is the only true republic. Each person to help make the laws which govern him or her, is the only true democracy. Individual responsibility, personal representation, exact political equality, are the only stable foundations of a republic, and when the United States makes voting a crime on the part of any free-born, law-abiding citizen, it strikes a blow at its own stability; it is undermining the very foundations of the republic--it is attempting to overthrow its own Constitution. Miss Anthony is to-day the representative of liberty; she is to-day battling for the rights of every man, woman and child in the country; she is not only upholding the right of every native-born citizen, but of every naturalized citizen; to-day is at stake in her person, the new-born hopes of foreign lands, the quickened instincts of liberty, so well nigh universal. All these are on trial with her; the destinies of America, the civilization of the world, are in the balance with her as she stands on her defence. If the women of this country are restricted in their right of self-government, what better is it for them to have been born in the United States, than to have been born in Russia, or France, or England, or many another monarchical country? No better; nor as well, as in all these countries, women vote upon certain questions. In Russia, about one-half of the property of the country is in the hands of women, and they vote upon its disposition and control. In France and Sweden, women vote at municipal elections, and in England, every woman householder or rate-payer, votes for city officers, for poor wardens and school commissioners, thus expressing her views as to the education of her children, which is a power not possessed by a single woman of this State of New York, whose boast has been that it leads the legislation of the world in regard to women. Property-holding women in England, vote equally with property-holding men, for every office except Parliamentary, and even that is near at hand, a petition for it of 180,000 names going up last year. England, though a monarchy, is consistent with herself. As the foundation of English representation is property, not persons, property is allowed its representation, whether it is held by man or by woman. "Are ye not of more value than many sparrows?" said one of old. Is it less pertinent for us to ask if personal representation is not more sacred than property representation? "Where governments lead, there are no revolutions," said the eloquent Castelar. But revolution is imminent in a government like ours, instituted by the people, for the people, in its charters recognizing the most sacred rights of the people, but which, in a sovereign capacity, through its officials, tramples upon the most sacredly secured and guaranteed rights of the people. The question brought up by this trial is not a woman's rights question, but a citizen's rights question. It is not denied that women are citizens,--it is not denied that Susan B. Anthony was born in the United States, and is therefore a citizen of the United States, and of the State wherein she resides, which is this State of New York. It cannot be denied that she is a person,--one of the people,--there is not a word in the Constitution of the United States which militates against the recognition of woman as a person, as one of the people, as a citizen. The whole question, then, to-day, turns on the power of the United States over the political rights of citizens--the whole question then, to-day, turns on the supreme authority of the National Constitution. The Constitution recognizes native-born women as citizens, both of the United States, and of the States in which they reside, and the Enforcement Act of 1870, in unison with our national fundamental principles, is entitled "An Act _to enforce the right of citizens of the United States to vote_ in the several States of the Union." Out of those three words, "for other purposes," or any provisions of this act included in them, cannot be found authority for restraining any citizen not "guilty of participating in the rebellion, or other crime," from voting, and we brand this prosecution of Miss Anthony by United States officials, under claim of provisions in this act, as _an illegal prosecution_--_an infamous prosecution_, in direct defiance of national law--dangerous in its principles, tending to subvert a republican form of government, and a direct step, whether so designed or not, to the establishment of a monarchy in this country. Where the right of one individual is attacked, the rights of all are menaced. A blow against one citizen, is a blow against every citizen. The government has shown itself very weak in prosecuting Miss Anthony. No astute lawyer could be found on a side so pregnant of flaws as this one, were not the plaintiff in the case, the sovereign United States. The very fact of the prosecution is at one and the same time weakness on the part of the government, and an act of unauthorized authority. It is weakness, because by it, the United States comes onto the ground of the defendant, and, at once admits voting is an United States right, because United States rights _are citizens' rights_. By this prosecution, the United States clearly admits that protection of the ballot is an United States duty, instead of a State duty. It is an United States duty instead of a State duty, because voting is an United States right instead of a State right. This prosecution is an open admission by the United States, that voting is a _Constitutional right_. But the prosecution is also an admission of unauthorized authority in that by it, the United States _discriminates between citizens_. If there is one point of our government more strongly fortified than another, it is that the government is of the people. The Preamble of the Constitution, heretofore quoted, _means all the people_, if language has a meaning. _All_ the people are citizens, if the fourteenth amendment has any signification at all. If any minds are so obtuse as not to see that the ballot is an United States right,--if any person before me still claims suffrage as a state right alone, such person certainly cannot fail to see that under his views the United States has been guilty of a high-handed outrage upon Miss Anthony and the fourteen other women whom this great government,--this _big United States_ has prosecuted. Under this view of the right of suffrage such person cannot fail to see there has been unauthorized interference by the United States, with the duties and rights of the State of New York. And while Uncle Sam was thus busy last winter over the prosecution of women citizens of the State of New York, the State itself submitted in its Legislature, a resolution looking towards the recognition by the State of the right of tax-paying women to the ballot. Thus at one and the same time was seen the anomaly of a prosecution by the United States of women of the State of New York for an act that New York herself was resolving it right to perform, and which if the ballot is not a constitutional right, the United States has no power over at all. Look at this prosecution as you will, it presents a fine dilemma to solve; it presents to the country, as never before, the most important and vital question of United States rights; it presents the most important and vital question of unconstitutional power which has grown to such dimensions in the hands of United States officials; and it must bring to people's cognizance the very slight thread by which hangs the security of any citizen's right to the ballot. Governments try themselves. No government has been stable in the past; all have fallen because all have been one-sided; all have permitted the degradation of woman. Babylon fell; her religion defiled woman; the hand-writing appeared upon the wall, and in a single night she was overthrown. Neither was Rome immortal; her laws were class laws; the rights of humanity were not respected; she underwent many changes, and that vast empire which once ruled the world lives now only in name. Egypt held the wisdom of the world, and as to a certain extent she recognized the equality of woman, her empire endured for ages; at last, she too fell, for her civilization was still an unequal one. Special laws, or laws specially defined for one particular body of people, on account of race, color, sex, or occupation, is class legislation, and bears the seeds of death within itself. It was the boast of our forefathers, that the rights for which they contended were the rights of human nature. Shall the women of this country forever have cause to say that the declaration and the constitution are specially defined,--are organs of special law? Where the legislative and executive function of the law are in the hands of a single class, special law, or special renderings of law are the unvarying results. If the constitution of the United States is defined and ruled by United States officials to discriminate between classes of citizens, then the constitution is by them made to be nothing less than an organ of special law, and is held not to sustain the rights of the people. While the class which has usurped the legislative, the executive and the judicial functions of the government, defines political rights to belong to male citizens alone, the women of the United States are under special law; and while thus debarred from exercising their natural right of self-government, they are subjects, not citizens. It matters not if women never voted since the framing of the government, until now, this right has merely been retained by them; it has been held in abeyance, to be exercised by them whenever they chose. The principles advocated by the women to-day are the principles which brought on the revolutionary war, and Miss Anthony and other women associated with her are exponents of the very principles which caused the colonies to rebel against the mother country. The eyes of all nations are upon us; their hopes of liberty are directed towards us; the United States is now on trial by the light of its own underlying principle. Its assertion of human right to self-government lies a hundred years back of it. The chartered confirmation and renewal of this assertion has come up to our very day, and though all the world looked on and wondered to see us crush the rebellion of '61, it is at this hour,--at this soon coming trial of Miss Anthony at Canandaigua, before the Supreme Court of the Northern District of New York,--it is at this trial that republican institutions will have their grand test, and as the decision is rendered for, or against the political rights of citizenship, so will the people of the United States find themselves free or slaves, and so will the United States have tried itself, and paved its way for a speedy fall, or for a long and glorious continuance. Miss Anthony is to-day the representative of liberty. In all ages of the world, and during all times, there have been epochs in which some one person took upon their own shoulders the hopes and the sorrows of the world, and in their own person, through many struggles bore them onward. Suddenly or gradually, as the case might be, men found the rugged path made smooth and the way opened for the world's rapid advance. Such an epoch exists now, and such a person is Susan B. Anthony. To you, men of Ontario county, has come an important hour. The fates have brought about that you, of all the men in this great land, have the responsibility of this trial. To you, freedom has come looking for fuller acknowledgement, for a wider area in which to work and grow. Your decision will not be for Susan B. Anthony alone; it will be for yourselves and for your children's children to the latest generations. You are not asked to decide a question under favor, but according to the foundation principles of this republic. You will be called upon to decide a question according to our great charters of liberty--the Declaration of Independence and the Constitution of the United States. You are to decide, not only on a question of natural right, but of absolute law, of the supreme law of the land. You are not to decide according to prejudice, but according to the constitution. If your decision is favorable to the defendant, you will sustain the constitution; if adverse, if you are blinded by prejudice; you will not decide against women alone, but against the United States as well. No more momentous hour has arisen in the interest of freedom, for the underlying principles of the republic, its warp and woof alike, is the exact and permanent political equality of every citizen of the nation, whether that citizen is native born or naturalized, white or black, man or woman. And may God help you. JUDGE HUNT, AND The Right of Trial by Jury. By JOHN HOOKER, Hartford, Conn. * * * The following article was intended for publication in a magazine, but the writer kindly contributed it for publication in this pamphlet. * * * In the recent trial of Susan B. Anthony for voting, (illegally, as was claimed, on the ground that as a woman she had no right to vote--a point which we do not propose to consider,) the course of Judge Hunt, in taking the case from the jury, and ordering a verdict of guilty to be entered up, was so remarkable, so contrary to all rules of law, and so subversive of the system of jury trials in criminal cases, that it should not be allowed to pass without an emphatic protest on the part of every public journal that values our liberties. Let us first of all see precisely what were the facts. Miss Anthony was charged with having knowingly voted, without lawful right to vote, at the Congressional election in the eighth ward of the City of Rochester, in the State of New York, in November, 1872. The Act of Congress under which the prosecution was brought provides that, "If, at any election for representative or delegate in the Congress of the United States, any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead or fictitious, or vote more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully entitled to vote, or vote without having a lawful right to vote, every such person shall be deemed guilty of a crime," &c. The trial took place at Canandaigua, in the State of New York, in the Circuit Court of the United States, before Judge Hunt, of the Supreme Court of the United States. The defendant pleaded not guilty--thus putting the Government upon the proof of their entire case, admitting, however, that she was a woman, but admitting nothing more. The only evidence that she voted at all, and that, if at all, she voted for a representative in Congress, offered on the part of the government, was, that she handed four bits of paper, folded in the form of ballots, to the inspectors, to be placed in the voting boxes. There was nothing on the outside of these papers to indicate what they were, and the contents were not known to the witnesses nor to the inspectors. There were six ballot boxes, and each elector had the right to cast six ballots. This evidence would undoubtedly warrant the conclusion that Miss Anthony voted for a Congressional representative, the fact probably appearing, although the papers before the writer do not show it, that one of the supposed ballots was placed by her direction in the box for votes for Members of Congress. The facts are thus minutely stated, not at all for the purpose of questioning their sufficiency, but to show how entirely it was a question of fact, and therefore a question for the jury. Upon this evidence Judge Hunt directed the clerk to enter up a verdict of guilty. The counsel for the defendant interposed, but without effect, the judge closing the discussion by saying, "Take the verdict, Mr. Clerk." The clerk then said, "Gentlemen of the jury, hearken to your verdict, as the Court has recorded it. You say you find the defendant guilty of the offence whereof she stands indicted, and so say you all." To this the jury made no response, and were immediately after dismissed. It is stated in one of the public papers, by a person present at the trial, that immediately after the dismissal of the jury, one of the jurors said to him that that was not his verdict, nor that of the rest, and that if he could have spoken he should have answered "Not guilty," and that other jurors would have sustained him in it. The writer has no authority for this statement, beyond the letter mentioned. The juror, of course, had a right, when the verdict was read by the clerk, to declare that it was not his verdict, but it is not strange, perhaps, that an ordinary juror, with no time to consider, or to consult with his fellows, and probably ignorant of his rights, and in awe of the Court, should have failed to assert himself at such a moment. Probably the assumption by the judge that Miss Anthony in fact voted, did her no real injustice, as it was a notorious fact that she did vote, and claimed the right to do so. But all this made it no less an usurpation for the judge to take the case from the jury, and order a verdict of guilty to be entered up without consulting them. There was, however, a real injustice done her by the course of the judge, inasmuch as the mere fact of her voting, and voting unlawfully, was not enough for her conviction. It is a perfectly settled rule of law that there must exist an intention to do an illegal act, to make an act a crime. It is, of course, not necessary that a person perpetrating a crime should have an actual knowledge of a certain law which forbids the act, but he must have a criminal intent. Thus, if one is charged with theft, and admits the taking of the property, which is clearly proved to have belonged to another, it is yet a good defence that he really believed that he had a right to take it, or that he took it by mistake. Just so in a case where, as sometimes occurs, the laws regulating the right to vote in a State are of doubtful meaning, and a voter is uncertain whether he has a right to vote in one town or another, and, upon taking advice from good counsel, honestly makes up his mind that he has a right to vote in the town of A. In this belief he applies to the registrars of that town, who upon the statement of the facts, are of the opinion that he has a right to vote there, and place his name upon the list, and on election day he votes there without objection. Now, if he should be prosecuted for illegal voting, it would not be enough that he acknowledged the fact of voting, and that the judge was of the opinion that his view of the law was wrong. There would remain another and most vital question in the case, and that is, did he intend to vote unlawfully? Now, precisely the wrong that would be done to the voter in the case we are supposing, by the judge ordering a verdict of guilty to be entered up, was done by that course in Miss Anthony's case. She thoroughly believed that she had a right to vote. In addition to this she had consulted one of the ablest lawyers in Western New York, who gave it as his opinion that she had a right to vote, and who testified on the trial that he had given her that advice. The Act of Congress upon which the prosecution was founded uses the term "knowingly,"--"shall knowingly vote or attempt to vote in the name of any other person, or more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully entitled to vote, or without having a lawful right to vote." Here most manifestly the term "knowingly" does not apply to the mere _act_ of voting. It is hardly possible that a man should vote, and not know the fact that he is voting. The statute will bear no possible construction but that which makes the term "knowingly" apply to the _illegality_ of the act. Thus, "shall knowingly vote without having a lawful right to vote," can only mean, shall vote knowing that there is no lawful right to vote. This being so, there was manifestly a most vital question beyond that of the fact of voting, and of the conclusion of the judge that the voting was illegal, viz., did Miss Anthony vote, knowing that she had no right to vote. Now, many people will say that Miss Anthony ought to have known that she had no right to vote, and will perhaps regard it as an audacious attempt for mere effect, to assert a right that she might think she ought to have, but could not really have believed that she had. But whatever degree of credit her claim to have acted honestly in the matter is entitled to, whether to much, or little, or none, it was entirely a question for the jury, and they alone could pass upon it. The judge had no right even to express an opinion on the subject to the jury, much less to instruct them upon it, and least of all to order a verdict of guilty without consulting them. There seems to have been an impression, as the writer infers from various notices of the matter in the public papers, that the case had resolved itself into a pure question of law. Thus, a legal correspondent of one of our leading religious papers, in defending the course of Judge Hunt, says: "There was nothing before the Court but a pure question of law. Miss Anthony violated the law of the State intentionally and deliberately, as she openly avowed, and when brought to trial her only defence was that the law was unconstitutional. Here was nothing whatever to go to the jury." And again he says: "In jury trials all questions of law are decided by the judge." This writer is referred to only as expressing what are supposed to be the views of many others. To show, however, how entirely incorrect is this assumption of fact, I insert here the written points submitted by Miss Anthony's counsel to the Court, for its instruction to the jury. First--That if the defendant, at the time of voting, believed that she had a right to vote, and voted in good faith in that belief, she is not guilty of the offence charged. Second--In determining the question whether she did or did not believe that she had a right to vote, the jury may take into consideration, as bearing upon that question, the advice which she received from the counsel to whom she applied. Third--That they may also take into consideration, as bearing upon the same question, the fact that the inspectors considered the question, and came to the conclusion that she had a right to vote. Fourth--That the jury have a right to find a general verdict of guilty or not guilty, as they shall believe that she has or has not been guilty of the offense prescribed in the statute. This certainly makes it clear that the question was not "a pure question of law," and that there was "something to go to the jury." And this would be so, even if, as that writer erroneously supposes, Miss Anthony had openly avowed before the Court that she voted. But even if this point be wholly laid out of the case, and it had been conceded that Miss Anthony had knowingly violated the law, if she should be proved to have voted at all, so that the only questions before the Court were, first--whether she had voted as charged, and secondly--whether the law forbade her voting; and if in this state of the case a hundred witnesses had been brought by the government, to testify that she had "openly avowed" in their presence that she had voted, so that practically the question of her having voted was proved beyond all possible question, still, the judge would have no right to order a verdict of guilty. The proof that she voted would still be _evidence_, and _mere evidence_, and a judge has no power whatever to deal with evidence. He can deal only with the law of the case, and the jury alone can deal with the facts. But we will go further than this. We will suppose that in New York, as in some of the States, a defendant in a criminal case is allowed to testify, and that Miss Anthony had gone upon the stand as a witness, and had stated distinctly and unequivocally that she did in fact vote as charged. We must not forget that, if this had actually occurred, she would at the same time have stated that she voted in the full belief that she had a right to vote, and that she was advised by eminent counsel that she had such right; a state of the case which we have before referred to as presenting a vital question of fact for the jury, and which excludes the possibility of the case being legally dealt with by the judge alone; but this point we are laying out of the case in the view we are now taking of it. We will suppose that Miss Anthony not only testified that she voted in fact, but also that she had no belief that she had any right to vote; making a case where, if the Court should hold as matter of law that she had no right to vote, there would seem to be no possible verdict for the jury to bring in but that of "guilty." Even in this case, which would seem to resolve itself as much as possible into a mere question of law, there is yet no power whatever on the part of the judge to order a verdict of guilty, but it rests entirely in the judgment and conscience of the jury what verdict they will bring in. They may act unwisely and unconscientiously, perhaps by mere favoritism, or a weak sympathy, or prejudice, or on any other indefensible ground; but yet they have entire _power_ over the matter. It is for them finally to say what their verdict shall be, and the judge has no power beyond that of instruction upon the law involved in the case. The proposition laid down by the writer before referred to, that "in jury trials all questions of law are decided by the judge," is not unqualifiedly true. It is so in civil causes, but in criminal causes it has been holden by many of our best courts that the jury are judges of the law as well as of the facts. Pages could be filled with authorities in support of this proposition. The courts do hold, however, that the judges are to _instruct_ the jury as to the law, and that it is their duty to take the law as thus laid down. But it has never been held that if the jury assume the responsibility of holding a prisoner not guilty in the face of a charge from the judge that required a verdict of guilty, where the question was wholly one of law, they had not full power to do it. The question is one ordinarily of little practical importance, but it here helps to make clear the very point we are discussing. Here the judge laid down the law, correctly, we will suppose, certainly in terms that left the jury no doubt as to what he meant; and here, by all the authorities, the jury ought, as a matter of proper deference in one view, or of absolute duty in the other, to have adopted the view of the law given them by the judge. But it was in either case the _jury only_ who could apply the law to the case. The judge could _instruct_, but the jury only could _apply the instruction_. That is, the instruction of the judge, no matter how authoritative we may regard it, could find its way to the defendant _only through the verdict of the jury_. It is only where the confession of facts is _matter of record_, (that is, where the plea filed or recorded in the case _admits_ them), that the judge can enter up a judgment without the finding of a jury. Thus, if the defendant pleads "guilty," there is no need of a jury finding him so. If, however, he pleads "not guilty," then, no matter how overwhelming is the testimony against him on the trial, no matter if a hundred witnesses prove his admission of all the facts, the whole is not legally decisive like a plea of guilty; but the question still remains a question of fact, and the jury alone can determine what the verdict shall be. In other words, it is no less a question of fact for the reason that the evidence is all one way and overwhelming, or that the defendant has in his testimony admitted all the facts against himself. The writer has intended this article for general rather than professional readers, and has therefore not encumbered it with authorities; but he has stated only rules and principles that are well established and familiar to all persons practising in our courts of law. This case illustrates an important defect in the law with regard to the revision of verdicts and judgments in the United States Circuit Court. In almost all other courts, an application for a new trial on the ground of erroneous rulings by the judge, is made to a higher and independent tribunal. In this court, however, an application for a new trial is addressed to and decided by the same judge who tried the case, and whose erroneous rulings are complained of. Such a motion was made and argued by Miss Anthony's counsel before Judge Hunt, who refused to grant a new trial. Thus it was Judge Hunt alone who was to decide whether Judge Hunt was wrong. It is manifest that the opportunity for securing justice even before the most honest of judges, would be somewhat less than before an entirely distinct tribunal, as the judge would be prejudiced in favor of his own opinion, and the best and most learned of judges are human and fallible; while if a judge is disposed to be unfair, it is perfectly easy for him to suppress all attempts of a party injured by his decision to set it aside. The only remedy for a party thus wronged is by an appeal to the public. Such an appeal, as a friend of justice and of the law, without regard to Miss Anthony's case in any other aspect, the writer makes in this article. The public, thus the only appellate tribunal, should willingly listen to such a case, and pass its own supreme and decisive judgment upon it. The writer cannot but regard Judge Hunt's course as not only irregular as a matter of law, but a very dangerous encroachment on the right of every person accused to be tried by a jury. It is by yielding to such encroachments that liberties are lost. 
3291	----	John Marshall and the Constitution by Edward S. Corwin, an eBook 
36161	----	A LETTER TO THOMAS F. BAYARD CHALLENGING HIS RIGHT--AND THAT OF ALL THE OTHER SO-CALLED SENATORS AND REPRESENTATIVES IN CONGRESS-- TO EXERCISE ANY LEGISLATIVE POWER WHATEVER OVER THE PEOPLE OF THE UNITED STATES. BY LYSANDER SPOONER. BOSTON, MASS.: PUBLISHED BY THE AUTHOR. 1882. A Letter to Thomas F. Bayard "_Challenging his right--and that of all the other so-called senators and representatives in Congress--to exercise any legislative power whatever over the people of the United States._" by Lysander Spooner To Thomas F. Bayard, of Delaware: Sir--I have read your letter to Rev. Lyman Abbott, in which you express the opinion that it is at least possible for a man to be a legislator (under the Constitution of the United States) and yet be an honest man. This proposition implies that you hold it to be at least possible that some four hundred men should, by some process or other, become invested with the right to make laws of their own--that is, _laws wholly of their own device_, and therefore necessarily distinct from the law of nature, or the principles of natural justice; and that these laws of their own making shall be really and truly obligatory upon the people of the United States; and that, therefore, the people may rightfully be compelled to obey them. All this implies that you are of the opinion that the Congress of the United States, of which you are a member, has, by some process or other, become possessed of some right _of arbitrary dominion_ over the people of the United States; which right of arbitrary dominion is not given by, and is, therefore, necessarily in conflict with, the law of nature, the principles of natural justice, and the natural rights of men, as individuals. All this is necessarily implied in the idea that the Congress now possesses any right whatever to make any laws whatever, _of its own device_--that is, any laws that shall be either more, less, or other than that natural law, which it can neither make, unmake, nor alter--and cause them to be enforced upon the people of the United States, or any of them, against their will. You assume that the right of arbitrary dominion--that is, the right of making laws of their own device, and compelling obedience to them--is a "trust" that has been delegated to those who now exercise that power. You call it "the trust of public power." But, Sir, you are mistaken in supposing that any such power has ever been delegated, or ever can be delegated, by any body, to any body. Any such delegation of power is naturally impossible, for these reasons, viz: 1. No man can delegate, or give to another, any right of arbitrary dominion over himself; for that would be giving himself away as a slave. And this no one can do. Any contract to do so is necessarily an absurd one, and has no validity. To call such a contract a "constitution," or by any other high-sounding name, does not alter its character as an absurd and void contract. 2. No man can delegate, or give to another, any right of arbitrary dominion over a third person; for that would imply a right in the first person, not only to make the third person his slave, but also a right to dispose of him as a slave to still other persons. Any contract to do this is necessarily a criminal one, and therefore invalid. To call such a contract a "constitution" does not at all lessen its criminality, or add to its validity. These facts, that no man can delegate, or give away, his own natural right to liberty, nor any other man's natural right to liberty, prove that he can delegate no right of arbitrary dominion whatever--or, what is the same thing, no legislative power whatever--over himself or anybody else, to any man, or body of men. This impossibility of any man's delegating any legislative power whatever, necessarily results from the fact that the law of nature has drawn the line, and the only line--and that, too, a line that can never be effaced nor removed--between each man's own interest and inalienable rights of person and property, and each and every other man's inherent and inalienable rights of person and property. It, therefore, necessarily fixes the unalterable limits, within which every man may rightfully seek his own happiness, in his own way, free from all responsibility to, or interference by, his fellow men, or any of them. All this pretended delegation of legislative power--that is, of a power, on the part of the legislators, so-called, to make any laws of their own device, distinct from the law of nature--is therefore an entire falsehood; a falsehood whose only purpose is to cover and hide a pure usurpation, by one body of men, of arbitrary dominion over other men. That this legislative power, or power of arbitrary dominion, is a pure usurpation, on the part of those who now exercise it, and not a "trust" delegated to them, is still further proved by the fact that the only delegation of power, that is even professed or pretended to be made, is made _secretly_--that is, by _secret ballot_--and not in any open and authentic manner; and therefore not by any men, or body of men, who make themselves personally responsible, as principals, for the acts of those to whom they profess to delegate the power. All this pretended delegation of power having been made secretly--that is, only by secret ballot--not a single one of all the legislators, so-called, who profess to be exercising only a delegated power, has himself any legal knowledge, or can offer any legal proof, as to who the particular individuals were who delegated it to him. And having no power to identify the individuals who professed to delegate the power to him, he cannot show any legal proof that anybody ever even attempted or pretended to delegate it to him. Plainly, a man who exercises any arbitrary dominion over other men and who claims to be exercising only a delegated power, but cannot show who his principals are, nor, consequently, prove that he has any principals, must be presumed, both in law and reason, to have no principals; and therefore to be exercising no power but his own. And having, of right, no such power of his own, he is, both in law and reason, a naked usurper. Sir, a secret ballot makes a secret government; and a secret government is a government by conspiracy; in which the people at large can have no rights. And that is the only government we now have. It is the government of which you are a voluntary member and supporter, and yet you claim to be an honest man. If you are an honest man, is not your honesty that of a thoughtless, ignorant man, who merely drifts with the current, instead of exercising any judgment of his own? For still another reason, all legislators, so-called, under the Constitution of the United States, are exercising simply an arbitrary and irresponsible dominion of their own; and not any authority that has been delegated, or pretended to have been delegated, to them. And that reason is that the Constitution itself (Art. I, Sec. 6) prescribes that: "For any speech or debate (or vote) in either house, they (the Senators and Representatives) shall not be questioned (held to any legal responsibility) in any other place." This provision makes the legislators constitutionally irresponsible to anybody; either to those on whom they exercise their power, or to those who may have, either openly or secretly, attempted or pretended to delegate power to them. And men who are legally responsible to nobody for their acts, cannot truly be said to be the agents of any body, or to be exercising any power but their own; for all real agents are necessarily responsible both to those _on_ whom they act, and to those _for_ whom they act. To say that the people of this country ever have bound, or ever could bind, themselves by any contract whatever--the Constitution, or any other--to thus give away all their natural rights of property, liberty, and life, into the hands of a few men--a mere conclave--and that they should make it a part of the contract itself that these few men should be held legally irresponsible for the disposal they should make of those rights, is an utter absurdity. It is to say that they have bound themselves, and that they could bind themselves, by an utterly idiotic and suicidal contract. If such a contract had ever been made by one private individual to another, and had been signed, sealed, witnessed, acknowledged, and delivered, with all possible legal formalities, no decent court on earth--certainly none in this country--would have regarded it, for a moment, as conveying any right, or delegating any power, or as having the slightest legal validity, or obligation. For all the reasons now given, and for still others that might be given, the legislative power now exercised by Congress is, in both law and reason, a purely personal, arbitrary, irresponsible, usurped dominion on the part of the legislators themselves, and not a power delegated to them by anybody. Yet under the pretense that this instrument gives them the right of an arbitrary and irresponsible dominion over the whole people of the United States, Congress has now gone on, for ninety years and more, filling great volumes with laws of their own device, which the people at large have never read, nor even seen, nor ever will read or see; and of whose legal meanings it is morally impossible that they should ever know anything. Congress has never dared to require the people even to read these laws. Had it done so, the oppression would have been an intolerable one; and the people, rather than endure it, would have either rebelled, and overthrown the government, or would have fled the country. Yet these laws, which Congress has not dared to require the people even to read, it has compelled them, at the point of the bayonet, to obey. And this moral, and legal, and political monstrosity is the kind of government which Congress claims that the Constitution authorizes it to impose upon the people. Sir, can you say that such an arbitrary and irresponsible dominion as this, over the properties, liberties, and lives of fifty millions of people--or even over the property, liberty, or life of any one of those fifty millions--can be justified on any reason whatever? If not, with what color of truth can you say that you yourself, or anybody else, can act as a legislator, under the Constitution of the United States, and yet be an honest man? To say that the arbitrary and irresponsible dominion, that is exercised by Congress, has been delegated to it by the Constitution, _and not solely by the secret ballots of the voters for the time being_, is the height of absurdity; for what is the Constitution? It is, at best, a writing that was drawn up more than ninety years ago; was assented to at the time only by a small number of men; generally those few white male adults who had prescribed amounts of property; probably not more than two hundred thousand in all; or one in twenty of the whole population. Those men have been long since dead. They never had any right of arbitrary dominion over even their contemporaries; and they never had any over us. Their wills or wishes have no more rightful authority over us, than have the wills or wishes of men who lived before the flood. They never personally signed, sealed, acknowledged, or delivered, or dared to sign, seal, acknowledge, or deliver, the instrument which they imposed upon the country as law. They never, in any open and authentic manner, bound even themselves to obey it, or made themselves personally responsible for the acts of their so-called agents under it. They had no natural right to impose it, as law, upon a single human being. The whole proceeding was a pure usurpation. In practice, the Constitution has been an utter fraud from the beginning. Professing to have been "ordained and established" by "_we, the people of the United States_," it has never been submitted to them, as individuals, for their voluntary acceptance or rejection. They have never been asked to sign, seal, acknowledge, or deliver it, as their free act and deed. They have never signed, sealed, acknowledged, or delivered it, or promised, or laid themselves under any kind of obligation, to obey it. Very few of them have ever read, or even seen it; or ever will read or see it. Of its legal meaning (if it can be said to have any) they really know nothing; and never did, nor ever will, know anything. Why is it, Sir, that such an instrument as the Constitution, for which nobody has been responsible, and of which few persons have ever known anything, has been suffered to stand, for the last ninety years, and to be used for such audacious and criminal purposes? It is solely because it has been sustained by the same kind of conspiracy as that by which it was established; that is, by the wealth and the power of those few who were to profit by the arbitrary dominion it was assumed to give them over others. While the poor, the weak, and the ignorant, who were to be cheated, plundered, and enslaved by it, have been told, and some of them doubtless made to believe, that it is a sacred instrument, designed for the preservation of their rights. These cheated, plundered, and enslaved persons have been made to feel, if not to believe, that the Constitution had such miraculous power, that it could authorize the majority (or even a plurality) of the male adults, for the time being--a majority numbering at this time, say, five millions in all--to exercise, through their agents, secretly appointed, an arbitrary and irresponsible dominion over the properties, liberties, and lives of the whole fifty millions; and that these fifty millions have no rightful alternative but to submit all their rights to this arbitrary dominion, or suffer such confiscation, imprisonment, or death as this secretly appointed, irresponsible cabal, of so-called legislators, should see fit to resort to for the maintenance of its power. As might have been expected, and as was, to a large degree, at least, intended, this Constitution has been used from the beginning by ambitious, rapacious, and unprincipled men, to enable them to maintain, at the point of the bayonet, an arbitrary and irresponsible dominion over those who were too ignorant and too weak to protect themselves against the conspirators who had thus combined to deceive, plunder, and enslave them. Do you really think, Sir, that such a constitution as this can avail to justify those who, like yourself, are engaged in enforcing it? Is it not plain, rather, that the members of Congress, as a legislative body, whether they are conscious of it or not, are, in reality, a mere cabal of swindlers, usurpers, tyrants and robbers? Is it not plain that they are stupendous blockheads, if they imagine that they are anything else than such a cabal? or that their so-called laws impose the least obligation upon anybody? If you have never before looked at this matter in this light, I ask you to do so now. And in the hope to aid you in doing so candidly, and to some useful purpose, I take the liberty to mail for you a pamphlet entitled: "NATURAL LAW; OR THE SCIENCE OF JUSTICE; a Treatise on Natural Law, Natural Justice, Natural Rights, Natural Liberty, and Natural Society; Showing That All Legislation Whatsoever Is an Absurdity, a Usurpation, and a Crime. Part I." In this pamphlet, I have endeavored to controvert distinctly the proposition that, by any possible process whatever, any man, or body of men, can become possessed of any right of arbitrary dominion over other men, or other men's property; or, consequently, any right whatever to make any law whatever, of their own--distinct from the law of nature--and compel any other men to obey it. I trust I need not suspect you, as a legislator under the Constitution, and claiming to be an honest man, of any desire to evade the issue presented in this pamphlet. If you shall see fit to meet it, I hope you will excuse me for suggesting that--to avoid verbiage, and everything indefinite--you give at least a single specimen of a law that either heretofore has been made, or that you conceive it possible for legislators to make--that is, some law of their own device--that either has been, or shall be, really and truly obligatory upon other persons, and which such other persons have been, or may be, rightfully compelled to obey. If you can either find or devise any such law, I trust you will make it known, that it may be examined, and the question of its obligation be fairly settled in the popular mind. But if it should happen that you can neither find such a law in the existing statute books of the United States, nor, in your own mind, conceive of such a law as possible under the Constitution, I give you leave to find it, if that be possible, in the constitution or statute book of any other people that now exist, or ever have existed, on the earth. If, finally, you shall find no such law, anywhere, nor be able to conceive of any such law yourself, I take the liberty to suggest that it is your imperative duty to submit the question to your associate legislators; and, if they can give no light on the subject, that you call upon them to burn all the existing statute books of the United States, and then to go home and content themselves with the exercise of only such rights and powers as nature has given to them in common with the rest of mankind. 
31424	----	United States vs. Charles G. Davis. REPORT OF THE PROCEEDINGS AT THE EXAMINATION OF CHARLES G. DAVIS, ESQ., ON A CHARGE OF AIDING AND ABETTING IN THE RESCUE OF A FUGITIVE SLAVE. HELD IN BOSTON, IN FEBRUARY, 1851 BOSTON: WHITE & POTTER, PRINTERS, 4 SPRING LANE. 1851. NOTE. The following Report is published at the request of numerous persons who are of opinion that all which is known of the operation of the Fugitive Slave Bill, should be spread before the public. To the legal profession it will be of interest, as developing new points in the construction and application of a Statute, destined to be of great political importance now, and in future history. They will be able to judge of the constructions upon the Statute, and of the law of evidence, as laid down and applied by the Commissioner, and contended for by the representative of the Government. Not the profession alone, but the public, can judge of the temper, and manner, as to parties and witnesses, in which the prosecution was pressed, and the judicial duties performed. It will be well for every reader to bear in mind that this is the tribunal to which the late Act of Congress gives final jurisdiction in deciding whether a man found a free inhabitant of a free state, shall be exiled, and sent into endless slavery. The Commissioner tries an issue, on the result of which, all the hopes of a fellow man for the life that is, and that which is to come, are suspended; and his judgment is "conclusive on all other tribunals."[A] [A: See the Opinion of Attorney General Crittenden.] It will be well for us, as citizens, to remember, that the attempt is making to establish this act, passed by the vote of less than half of the Representatives of the people, as the unalterable law of the country; to treat as treason and disaffection to government, all attempts to rouse the public to efforts for its repeal; and, by unprecedented coalitions, that might almost be called conspiracies, of public men, to destroy the character and means of influence of all who lend their aid in these efforts. Even a public discussion of the subject, is cause for suspicion and inquiry. We would ask every reader, on rising from the examination of this trial, taken in connexion with the President's Proclamation and Message, the late debate in the Senate, and the recent letters and speeches of leading men of both parties, to say, for himself, whether these are not times, not only of danger to the liberty of colored men, but of serious apprehension for our independence and dignity as men, and our rights as citizens. REPORT. On the 13th of February, A.D. 1851, one John Caphart, of Norfolk, Va., came to Boston, in pursuit of one Shadrach, alleged to be a fugitive slave and the property of John Debree, a purser in the navy, and attended by Seth J. Thomas, Esq., as counsel, made his complaint, as agent and attorney of the said owner, before George T. Curtis, Esq., U. S. Commissioner. On the evening of the 14th, the following warrant was placed in the hands of special marshal Sawin, and served, Shadrach offering no resistance, about half-past 11 on Saturday forenoon, the 15th, at the Cornhill Coffee House, where Shadrach had been employed for some months as a waiter:-- UNITED STATES OF AMERICA. _Massachusetts District, ss._ To the Marshal of our District of Massachusetts, or either of his deputies. [Seal] Greeting: These are, in the name of the President of the United States of America, to command you, the said marshal or deputies, and each of you, forthwith to apprehend one Shadrach, now commorant in Boston, in said district, a colored person, who is alleged to be a fugitive from service or labor, and who has escaped from service or labor in the state of Virginia, (if he may be found in your precinct), and have him forthwith before me, one of the commissioners of the circuit court of the United States for the Massachusetts district, at the court house in Boston aforesaid, then and there to answer to the complaint of John Caphart, attorney of John De Bree, of Norfolk, in the state of Virginia, alleging under oath, that the said Shadrach owes service or labor to the said De Bree, in the said state of Virginia, and while held to service there under the laws of the said state of Virginia, escaped into the state of Massachusetts aforesaid, and praying for the restoration of the said Shadrach to the said De Bree, and then and there before me to be dealt with according to law. Hereof fail not, and make due return of this with your doings thereon, before me. Witness my hand and seal at Boston, in the said district, on this fourteenth day of February, in the year of our Lord, one thousand eight hundred and fifty one. (Signed) GEO. T. CURTIS, Commissioner of the Circuit Court of the United States, for Massachusetts District. * * * * * The following return was endorsed upon the warrant:-- BOSTON, February 15th, 1851. In obedience to the warrant to me directed, I have this day arrested the within named Shadrach, and now have him before the commissioner within named. P. RILEY, U. S. Deputy Marshal. A hearing was had in the U. S. court room, and several papers, being affidavits and certificates of a record, were exhibited by the complainant's counsel, as the evidence under the 10th section of the Fugitive Slave Law so called, that Shadrach was a slave in Virginia, that he was owned by said De Bree, and that he escaped on the 3d of May, 1850. At the request of counsel these papers were read and admitted as evidence in the case, subject to such objections as might be made to their admissibility as legal evidence thereafter. There were present as counsel for Shadrach, S. E. Sewall, Ellis G. Loring, Charles G. Davis, and Charles List, and as they had not had an opportunity to examine the documents produced by the complainant, and were therefore not satisfied of their sufficiency, they asked for a postponement, to February 18th, and the commissioner adjourned the further hearing of the matter until 10 o'clock, on Tuesday, February 18th, and passed the following order:-- United States of America, District of Massachusetts, February 15th, 1851.--And now the hearing of this case being adjourned to Tuesday the eighteenth day of February instant, at ten o'clock in the forenoon, the said deputy marshal, who has made return of this warrant, is hereby ordered to retain the said Shadrach in his custody, and have him before me at the time last mentioned, at the court house in Boston, for the further hearing of the complaint on which this warrant is issued. GEO. T. CURTIS, Commissioner. * * * * * On the following Tuesday, P. Riley, Esq., Deputy U. S. Marshal, appeared before the Commissioner, George T. Curtis, Esq., and offered the following return which was annexed to the above order. BOSTON, Tuesday, February 18th, 1851. UNITED STATES OF AMERICA. _Massachusetts District, ss._ I hereby certify, in pursuance of law and the foregoing order, the said "Shadrach" named in the foregoing warrant and order, was being detained in my custody in the Court Room of the United States, in the Court House, in said Boston, when the door of said room, which was being used as a prison, was forced open by a mob, and the said "Shadrach" forcibly rescued from my custody. I also annex hereto, and make part of my return an original [printed] deposition, of the circumstances attending the arrest and rescue, and have not been able to retake said Shadrach, and cannot now have him before said Commissioner for reasons above stated. P. RILEY, U. S. Deputy Marshal. * * * * * COMMONWEALTH OF MASSACHUSETTS. _Suffolk County._ I, Patrick Riley, of Boston, in the said county, counsellor at law, having been duly sworn, depose and say, that I am, and have been, for fourteen years past, the principal deputy of the United States Marshal for the District of Massachusetts. That on Saturday morning, February 15th, 1851, about twenty minutes before 8 o'clock, A.M., I was called upon at my residence, by Frederick Warren, one of the U. S. deputy marshals, who informed me that there was a negro man, an alleged fugitive, to be arrested at 8 o'clock, who was supposed to be at Taft's Cornhill Coffee House, near the Court House, and desired to know where the negro should be put in case he should be arrested before I reached the office; that I told him to place him in the United States Court Room,--and that I would come to the office immediately,--that I came down almost immediately to the office, where I arrived shortly after 8 o'clock, and there found Mr. Warren, who informed me that the negro was unknown to Mr. Sawin, deputy marshal, to whom the warrant was handed on the night previous, as I have been informed, though no notice of it had been given to any occupant of the marshal's office,--and that the negro was unknown to any one of the marshal's deputies or assistants,--that Mr. Warren informed me that Mr. Sawin had gone to find the man, who by previous arrangement was to point out the negro, and who had not shown himself as agreed; that I remained in the court giving directions, and making preparations to secure the negro when arrested, and awaiting the return of Mr. Sawin; that I saw him after ten o'clock, and he informed me that he had seen the parties in interest, and that it had been arranged not to attempt the arrest until 11 o'clock,--that I told him that it should not be delayed one moment, and directed him to notify the man who was to point him out to come instantly; that he left for that purpose, and at ten minutes before 11 returned, and said that the parties were about Taft's Coffee House, and that the men engaged were also in readiness in that neighborhood; that I went immediately with Mr. Warren, Mr. John H. Riley, and other deputies to the said coffee-house, and there found all our men, nine in number, stationed in and about the place,--that there were several negroes in and about the house, and I inquired for the man who was to point out the alleged fugitive, and was informed that he had not arrived; that Mr. Warren and myself went immediately into the dining hall at the coffee-house, and to avoid suspicion, ordered some coffee, and were waited upon by a negro, who subsequently proved to be the alleged fugitive; that, not hearing any thing from our assistants, we took our coffee and rose to go out and learn why we had not heard from them; that the negro went before us to the bar-room, with the money to pay for the coffee, and in the passage between the bar-room and hall, Mr. Sawin and Mr. Byrnes came up, and each took the negro by an arm, and walked him out of the back passage way through a building between the coffee-house and the square beside the court house to the court-room as by me directed. That I immediately, while he was entering the court house, went to the office of the city marshal, in the city hall, in the same square with the court house, and there saw Mr. Francis Tukey, the city marshal, told him what had been done, and stated, that as there would probably be a great crowd, his presence with the police would be needed to preserve order, and keep the peace in and about the court house, which is owned by the city, and in which all the courts of the commonwealth for Suffolk county are held. That Mr. Tukey stated that it should be attended to,--that I told him that I should notify the mayor instantly, and proceeded up stairs to the mayor's office, where I found Hon. John P. Bigelow, mayor of the city, and made the same communication and request to him, which I had made to Mr. Tukey. To which the mayor said,--"Mr. Riley, I am sorry for it." That I then left the office, at which time it was just half past 11 o'clock. That I went immediately to the court-house, and found the negro in the United States court room, with the officers, and found all the doors closed, and was admitted by the usual inside entrance,--that George T. Curtis, Esq., the United States commissioner, was called, and came, and the claimant's counsel were sent for,--that all the doors were kept closed excepting the usual entrance, which was kept guarded by officers,--that the commissioner informed the fugitive, who was named "Shadrach" in the warrant, of the character of the business, and asked him if he wanted counsel,--to which he said that he did, and that his friends had gone for counsel,--that while waiting for the counsel to come, the room began to be filled with negroes and whites,--that the counsel for the prisoner appeared, and claimed a delay, to give them opportunity to consult with their client, pending which I desired Mr. Warren, the deputy marshal, to go to the navy yard at Charlestown, about two miles distant, and ask Commodore Downes whether, should a delay or adjournment take place, the navy yard might be used as a place of detention, the United States not being permitted by the law of the state to use the jails, and having none of their own. That the examination proceeded, and after the reading of certain documents presented by the claimant's attorney, and some discussion, the commissioner decided to grant the delay until Tuesday following the 18th inst. That the counsel for the prisoner asked of the commissioner if they might not remain and hold consultation with their client, and examine with him the papers presented, to which the commissioner assented,--that the court room was ordered to be cleared, and was cleared of all save some fifteen officers, being all the reliable men whom we had been able to collect, the counsel, and some newspaper reporters,--that Mr. Warren, at this time, which was about half past 12, returned from the navy yard, and informed me that he had seen Commodore Downes, who said he could not grant my request,--that I despatched what officers I could spare to ask such of their friends to remain as would assist, and to procure all the additional force possible, intending to use the court house as a place of detention. That Mr. Curtis, also left. That crowds of negroes and others began to gather about the court room, and in the passage ways leading to the court house,--that I went to one of the messengers who had charge of the building, and desired him to have all the court house doors closed as soon as possible, which were not necessary for use. That, at or before one o'clock, Mr. Ebenezer Noyes, the messenger of the U. S. court, was despatched to the city marshal, whom he informed that the U. S. marshal wanted every man that he could send to keep the peace in and about the court house, to which the city marshal replied, that he had no men in, but would send them over as they came in. That at about two o'clock, all the counsel had left, except Mr. Charles G. Davis, and a reporter, who I learned was Elizur Wright, one of the editors of the Commonwealth newspaper; that as the door was opened for them to leave, which opened outwardly, the negroes without, who had filled the passage way on the outside, took hold of the edges of the door as it opened, and then a struggle ensued between the holders of the door within, and those without. That Mr. Warren the deputy, immediately ran to the city marshal's office, but not finding him in, went to the mayor's office, and was informed, that the mayor had gone to dinner. That he then stated to those in his office that there was a mob in and about the court house, and called upon them to send men to help disperse it. That he then returned to the city marshal's office, found him in his private room, informed him of the trouble in the court house, and asked him to send all the men he could furnish, and whether he (Mr. Warren) could aid him in getting his men, to which he said that Mr. Warren could not assist him in the matter. That, meanwhile, the struggle at the door continued for some minutes, and the crowd of negroes finally succeeded in forcing the door wide open, rushed in in great numbers, overpowered all the officers, surrounded the negro, and he was forced by them through the door, down the stairs, and out of the side door of the court house, and thence through the streets to the section where most of the negroes of the city reside,--that officers were despatched in pursuit, but have not succeeded in finding his present abode. That from the time of the first notice to the mayor and city marshal, immediately after the arrest, as heretofore stated, to the giving of this deposition, neither the mayor nor the city marshal has appeared, nor has a single officer under their direction appeared, or aided in attempting to disperse the mob, or in keeping the peace; and that, in my opinion, it was the predetermined purpose of both not to do their duty in keeping the peace in and about their court house; for the city marshal, when requested by Henry S. Hallett, Esq., to disperse a similar mob, which had collected about the office of his father, a U. S. commissioner, during the excitement in the "Crafts" case, said that he had orders not to meddle in the matter, as I am informed by the said Hallett, and that the city marshal gave a similar answer to Watson Freeman, Esq., who asked him at about the same time why he did not disperse the mob, as I am informed by the said Freeman. That Charles Devens, Jr., Esq., the U. S. marshal for this district, was at the time of the arrest, returning from Washington, where he had gone on imperative official business,--that it is proper to state here that neither the marshal nor his deputy is authorized by law to employ a permanent force sufficient to resist a mob; and that he has no authority to call to his aid the troops of the state or of the United States. P. RILEY, U. S. Deputy Marshal, Massachusetts District. * * * * * Commonwealth of Massachusetts, Suffolk County, February 17, 1851.--Then personally appeared the above named Patrick Riley, and duly swore that the foregoing deposition by him subscribed is true, as to facts stated to be in his personal knowledge,--and that he believes that the statements therein given as made to him by others are true. HORATIO WOODMAN, Justice of the Peace. * * * * * After the reading of the above return, Samuel E. Sewall, Esq., protested against placing the whole of the last named affidavit on file, as a part of the return, inasmuch as it purported to narrate facts which took place previous to the last hearing, and the order thereon. The Commissioner inquired of Mr. Sewall, for whom he appeared. Answer, "For the alleged fugitive, called Shadrach." The Commissioner,--"You cannot appear for a person who has avoided process." Mr. Sewall. "The return in question shows, that he was forcibly removed. He is claimed as property. There is no evidence before the Commissioner that he has voluntarily avoided. So we are ready to proceed if the Commissioner chooses." The Commissioner. "You cannot address the Court, Sir. It is well settled, that a person who avoids process, cannot appear by attorney. The Marshal may make such a return as he sees fit. I cannot interfere. But I will say that the return seems to me proper, and it may be filed." Mr. Curtis declared the proceedings suspended, and ordered the Marshal to proclaim the Court adjourned indefinitely. * * * * * On Monday the 17th of February, 1851, Charles G. Davis, Esq., of Boston, an attorney, and counsellor at law, was arrested upon a warrant issued by B. F. Hallett, Esq., a U. S. Commissioner, upon complaints made to the District Attorney, a copy of which is subjoined. Mr. Davis gave bail for his appearance. * * * * * Thursday morning, February 20, 1851. U. S. Circuit Court Room. Before B. F. Hallett, U. S. Commissioner. _United States, vs. Charles G. Davis._ George Lunt, Esq., District Attorney, appeared for the United States. Richard H. Dana, Jr., and Charles G. Davis, Esquires., for the defence. Mr. Lunt moved that the original complaint be amended by the addition of another count. No objection was made, and the following complaint, as amended, was then read:-- UNITED STATES OF AMERICA. _Massachusetts District, ss._ To B. F. Hallett, Esq., Commissioner of the Circuit Court of the United States, for the District of Massachusetts. George Lunt, Attorney of the United States, for the District of Massachusetts, in behalf of said United States, on oath, complains, and informs your Honor, that on the fifteenth day of February, in the year of our Lord one thousand eight hundred and fifty-one, at Boston, in said District, one Charles G. Davis, of said Boston, Esq., with force and arms, did aid, abet, and assist one Shadrach, otherwise called Frederic, otherwise called Frederic Wilkins, the same being then and there a person owing service or labor, and a fugitive from service or labor, to escape from one John Caphart, who was then and there, the agent of one John De Bree, claimant of said person, owing service or labor, and a fugitive from service or labor as aforesaid; against the peace and dignity of the said United States, and contrary to the form of the Statute in such case made and provided. Wherefore, the said complainant complains that the said Charles G. Davis may be apprehended, and held to answer to this complaint, and further dealt with, relative to the same, according to law. And furthermore the said complainant prays that Frederic D. Byrnes, Simpson Clark, Charles Sawin, Patrick Riley, John H. Riley, John Caphart, may be duly summoned to appear and give evidence relative to the subject matter of the complaint. (Signed) GEORGE LUNT, U. S. Attorney. BOSTON, February 17th, 1851. UNITED STATES OF AMERICA. _Massachusetts District, ss._ Then the above named George Lunt, personally appeared, and made oath to the truth of the above complaint, by him subscribed. Before me, (Signed) B. F. HALLETT, Commissioner of the U. S. Circuit Court, for Massachusetts District. _Amended Count._ Also for that on the fifteenth day of February, in the year of our Lord one thousand eight hundred and fifty-one, at Boston, in said District, one Charles G. Davis, with force and arms, did aid, abet and assist one Shadrach, otherwise called Frederic, otherwise called Frederic Wilkins, the same being then and there a person owing service or labor to escape from Charles Devens, junior, Marshal of the United States, for said District of Massachusetts, who was then and there, a person legally authorized to arrest said fugitive, and said fugitive being then and there arrested pursuant to the authority given and declared in a certain statute of the United States, approved on the eighteenth day of September, in the year of our Lord one thousand eight hundred and fifty. Mr. Davis thereupon repeated his plea of not guilty. * * * * * [Note. Upon the previous examination of Mr. Wright, Mr. Lunt for the United States, had opened his case by stating that the complaint was based upon the 7th section of the act of September 18, 1850, (See Appendix), making it punishable by fine and imprisonment, to aid, abet, or assist, in the escape of a fugitive slave; and he should therefore call witnesses to show that the Shadrach named in the complaint against Wright, was a fugitive, as therein alleged. (See complaint). Mr. Lunt proceeded to call several witnesses, among whom Seth J. Thomas, and John Caphart, were named. Mr. Caphart did not appear. Commissioner Hallett called the attention of the District Attorney to the Statute, and said he was clearly of the opinion, and should rule, that, if it should appear that Shadrach was an _alleged fugitive_, an attempt to rescue him would be an offence under the act. Mr. Sewall, counsel for Mr. Wright, protested against the ruling. Colonel Seth J. Thomas was called to the stand. Mr. Thomas was called upon to read the Norfolk documents, before exhibited to Commissioner Curtis, tending to show that Shadrach was a fugitive. Mr. Sewall objected, that the documents could not be used as evidence in this case. They could only be used, if at all, upon a complaint, under the act, for the arrest and delivery of an alleged fugitive. They had not yet been received as evidence in such a case; they were only admitted subject to future objections, and the proceedings had been indefinitely postponed. There was no provision of the statute, and no principle of law which would make them evidence in criminal proceedings against a stranger, a free man, charged with making a rescue. The Commissioner stated that the papers should go in as papers having a tendency to show that Shadrach was an _alleged fugitive_]. * * * * * THE GOVERNMENT THEN OPENED ITS TESTIMONY. _Patrick Riley._ Am a Deputy U. S. Marshal--was before Mr. G. T. Curtis on Saturday, Feb. 15th; had an alleged fugitive called Shadrach, a black man, under arrest by warrant from Mr. Curtis--came to this room about 11-1/2 o'clock, A.M.; remained till about 2; about 2 o'clock I was standing near Shadrach at end of reporter's table inside of bar--he was consulting with his counsel; I was by the table when I heard a cry that they were rushing in--the cry came from the officers. Mr. Elizur Wright and Mr. Davis were the only strangers here, except Mr. Grimes, an alleged colored preacher. I immediately rushed to the door--some officers were between the green door and the outer door; I put my shoulder to green door--just then it cracked, the perpendicular piece was broken. I pushed as hard as I could with one of my feet against the judges' desk; I was there some three minutes; some one or two officers were outside pulling green door toward them. The crowd rushed in, surrounded the prisoner and left. I should think thirty or forty came into the room--Shadrach left with the crowd--there was noise and tumult outside and inside--"tear him away," I heard, and such expressions; cheers as he went out; before he went out I should think from two or three hundred. I saw no alteration in conduct of Shadrach, before the adjournment of court; saw him take his coat off and loosen his neckcloth--was satisfied he had no weapon, and was anxious none should be given to him. Mr. Davis was here as one of the counsel. I asked Shadrach if he was one of his counsel, and he said, yes, he had four or five counsel. I asked Mr. Sewall who were counsel, and some one said we four; S. Sewall, E. G. Loring, C. G. Davis and Charles List, were the counsel. Mr. King remained, stating something about his being counsel, and also Mr. Wells, his partner. (I told Mr. Wells to leave and Mr. King said he was his partner, and I let him remain.) Mr. Davis was here at the opening of Court, and Shadrach told me he was his counsel; he remained at the table in consultation, from adjournment to about the time of the rescue; do not know when he went out; do not remember his leaving the court-room, and I was here all the time, with this exception; I passed out the door a moment to give directions--I spoke to the messenger to close court house doors which he did not wish to use. When I went out, counsel and officers and reporters were here; that was before Mr. Wright came in. Four courts, C. C. Pleas, Supreme, Municipal and Police had been in session that morning. About 2, directed Mr. Davis and Mr. Wright to go out. I remained by prisoner with one or two officers at door, and between me and the door; did not see Davis after he passed the door; I saw him pass the inner door; Mr. Wright remained in; I remained by the prisoner. When I rushed to the door, I do not remember seeing Mr. Davis; I heard Mr. Davis say nothing offensive in the court room. [The original warrant for the arrest of Shadrach is here shown.] This is the warrant, order and return, etc., addressed to the Marshal or either of his Deputies; I arrested the man mentioned in this warrant, and the same man escaped. _To the Commissioner._ I did not come into court room with Shadrach, but I knew him as the man arrested. The second return, as to the escape, refers to the same party, Shadrach. _Cross examination by Mr. Davis._ I saw you examining papers produced before the Commissioner; saw you at table when Mr. Sewall called your name as counsel; you were standing; Mr. Sewall was talking to prisoner, and called you--this was immediately after order was given to clear the room. _To the Commissioner._ Commissioner Curtis ordered prisoner be kept till Tuesday morning safely; I carried it out in reference to prisoner. _Cross examination resumed._ I walked to end of passage to speak to Mr. Merrill; did not communicate to you a crowd was at the door. It is usual on exciting occasions to have officers outside when the door is open; sometimes have an officer outside. In other courts it is very common to have officers outside; there are fewer trials with us, and the room is hired by United States; we have no right to obstruct the entry. [Mr. Dexter was in room between adjournment and rescue.] Don't know but I stated yesterday there were officers outside; perhaps that Stratton was outside helping against the negroes. My printed return was made up of what I supposed to be the truth. I meant in that to say I heard a cry, and supposed there was no interpretation, except that the negroes broke the door open--saw the officers--communicated with them afterward, and published the affidavit as a general and true account of all that was material. Immediately after the rescue I ordered officers to go to see where the man was; I remained. I confess I was under great excitement; I had no conversation with Byrnes, Sawin or Clark, before the affidavit was prepared and sworn to. I was enquired of where the prisoner would be kept--I did not tell, but said if consultation was wanted we could have it in lobby. You told me, and Mr. List told me you were waiting for Mr. Dana. I told List that Mr. Dana asked me for a copy of the warrant before two o'clock--this was some few minutes before the rescue. Mr. List had just left with my copy of warrant, and had not returned at the time of the rescue,--did not know the use to be made of it. My impression is, that Mr. Sewall, yourself and Mr. Wright, were moving out together, but that Mr. Sewall got out before you did. There were three persons to leave, and I think you were all gradually moving to the door--I had no doubt you could get out safely and without disturbance--can't say you conversed with Mr. Wright or the preacher--there was some general conversation--saw you and Mr. Wright have no private conversation. I told Mr. Wright he might remain if prisoner assented. Perhaps the prisoner would like his counsel--Shadrach assented. I let Mr. Wright go up and speak to prisoner; I kept my eye on Mr. Wright when he spoke to the prisoner--he went up and took hold of his hand--Mr. Loring left the room sometime before. When Mr. Wright came in, I was surprised. You said Grimes better not come in--counsel asked me if a friend might remain with prisoner during his arrest--Messrs. List, Sewall and Davis were present--can't swear who asked me. _To the Commissioner._ Some colored friend I supposed--can't swear it was Davis asked it. _Mr. Dana._ Do you know the person you arrested, was the person named in the warrant? _Answer._ The person rescued was the person arrested under the warrant, but cannot say he was the person named in the warrant. _The Commissioner._ Do you contradict your return? The return is conclusive. _Mr. Lunt._ Mr. Riley, do you mean to contradict your return! I warn you, Sir! _Mr. Dana._ He has contradicted it. Mr. Riley, you didn't know that the person you arrested was the man named in the original warrant and complaint, as the slave of Debree? _Mr. Lunt._ I warn you, Mr. Riley, not to give that testimony! I warn you, Sir! _The Commissioner._ The return of the officer is conclusive. _Mr. Dana._ Does the Commissioner mean to rule that a man may be hung in a criminal case, on the return of an officer in another, and that a civil case? This case goes further. Here the very man who made the return is on the stand. Cannot we show by him that a part of this return is matter of form, and that he does not know whether it is true or not? _The Commissioner._ I think, Sir, the return of the officer is conclusive in all these proceedings. _Mr. Dana._ But the fact is already in--and the return is nullified. The objection is too late. _The Commissioner._ If he has answered, it may go in, _de bene esse_. _Mr. Lunt._ Does the Commissioner mean to rule in that testimony? _The Commissioner._ I receive it _de bene esse_; to give such weight to it as I shall think proper. _Mr. Dana._ Mr. Riley, do you know whether the man you arrested was the man named in the original warrant? _Mr. Riley._ Hardly a man is arrested known to the officer. The officer is responsible for mistakes. I don't know that the man arrested was the man named in the warrant. Did not apprehend a rescue or an attempt when Davis left. He left at my request at the time he left. He did not leave the room from all I saw, until his final departure--don't recollect seeing him outside the bar, nor conversing privately with any person beside counsel. He is known to me as a counsellor practising law in Circuit Court. _To District Attorney._ There might have been fifteen persons in court room when I left. My attention was not directed to Davis particularly. He _might_ have been absent without my knowledge. _To Mr. Dana._ I kept my eye on the door after the room was cleared--ordered that no one should be admitted. _Charles Sawin, Dep. Marsh._ Soon after Mr. Davis came in and sat down, he rose, coming towards me, and asked who Mr. Clark was, whether he was a southern man? I said, "No, that he was a citizen of Boston, and had been for some years." I asked Mr. Davis what there was in the wind, and he replied--"Not anything that I know of." He then added, "This is a damned dirty piece of business." This was before the proceedings before the Commissioner had closed. Afterwards when the proceedings had ended, Mr. Byrnes was standing within the rail and I was outside, Mr. Davis said, "Well, you ought all to have your throats cut." The attorneys were present. In all there were about twenty persons present. It was after the order had been given to clear the room. I made no reply to remark. I thought it was uncalled for. I missed Mr. Wright and Mr. Davis about the same time. I did not see him go out. I was near the prisoner. I saw a tallish man whisper in the prisoner's ear during the hearing. The prisoner then took off his coat, and rolled up his shirt sleeves, and adjust his neckerchief and look kind of fierce. It was a white man that whispered to the prisoner. Mr. Davis might have been gone a minute before the rush was made to break in. _Cross examined by Mr. Davis._ I don't know that your remark was, "this is damned dirty business for you to be in." My impression is that you did not qualify it. I did not consider it mean business. I thought it was legal business. I don't know that what you had said was the conclusion of a conversation that you had been having with Mr. Byrnes, and I don't recollect that the remark was, "Well, then, you ought to have your throats cut." Mr. Byrnes was near, and so were others of the counsel with you. There was a Mr. Morris, or Morrison, with them. _Mr. Davis._ What Mr. Morris? _Sawin._ That one! (pointing to Mr. Morris, who was in the bar) The little darkey lawyer! _The Commissioner._ Mr. Morris is a member of the bar, and entitled to be spoken of with respect, as much as the white lawyers who were engaged in the case. _Sawin._ I meant no disrespect. I only used the expression for the purpose of designating the man. _Mr. Dean._ The remark seems to amuse the district attorney. _Mr. Lunt._ I cannot always control my muscles. _Sawin._ (To Mr. Davis.) Have known you four or five years--never told you I was Deputy Marshal. Have given you business--considered the remark not unfriendly--didn't think much of it. The man was arrested in his apron and shirt sleeves--coat was afterwards brought in--don't know that he put his coat on again before the rescue. Heard Mr. Riley say to him, "Now, pretty soon, we'll have dinner." This was about the time you went out--thought you were counsel all the time. _Fred. D. Byrnes._ Am a Deputy Marshal. Saw Davis in room on Saturday sometime while proceedings were going on. The first thing I heard Mr. Davis say, was "Damn mean business." The prisoner was in the bar. Mr. Sawin was on one side of the prisoner, and Mr. Clark on the other. Mr. Davis was within two feet of the prisoner, and I was near Mr. Davis. This was before the adjournment. Afterwards, near the rail on the left of the room, Mr. Davis came along and put his hand on my shoulder, and said--"This is a damned pretty mess," or, "you are a damned pretty set," and "every one of you ought to have your throats cut." After that, and when nearly all the people had left, Mr. Wright and Davis came along, and I said to Mr. Davis, "I always took you for a gentleman until to-day, but I am very sorry to say I can't say it now." He said, "Why?" I repeated his remark about cutting our throats, and he replied--"Well, I say so now." Mr. Davis then went out. I saw nothing out of the way when he went out. After Mr. Wright had passed out, I saw Mr. Davis near the wall on the right of the door, and close to the steps. I heard a voice that I then took to be Mr. Davis's, say--"Take him out, boys--take him out." I did not see his lips move, but I thought it was him who spoke the words, and I think so now. I am acquainted with Mr. Davis, and knew it to be Mr. Davis's voice, and no other one's voice. His shoulder was resting, or leaning against the wall. I had passed through the baize door with Mr. Wright, so that I could see a person at the corner of the wall at the outer door. _Cross examined._ Mr. Hutchins had the charge of the door. I did not notice his position. Did see Mr. Clark's position. I saw nothing different in your going out from others going out. Clark and Hutchins were in front of me. I do not think the baize door closed on you before Mr. Wright came. The shout was after the pulling of the door commenced. Before that there had been several attempts to pull the door open. I had seen the ends of fingers on the edge of the door before that repeatedly. There was no rush when you passed out; but there may have been some hands on the door. I had gently led Mr. Wright as far out as the threshold when the rush commenced. I saw no obstructions in your way when you went out. I can't say whether Mr. Hutchins had to let go of the knob or not, when you got out. I thought at the time, that you meant to call the people in, and I so told our people then. Mr. Davis cross examined the witness very minutely as to the repeated opening and shutting of the baize and outer door during the minute prior to the rush, and also as to his position from moment to moment, and the positions of Clark and Hutchins, at and near the door. He testified that he was somewhat hard of hearing, more so some days than on others. _To Mr. Dana._ I think Saturday was one of my hearing days. I don't hear so well to-day. My deafness came on when Elder Knapp was here. I was called out on duty at the time of the disturbance in Bowdoin square, in 1843, or thereabouts. _To Mr. Lunt._ I saw a cleaver in the hands of a black man outside the door. He was standing rather back. _To Mr. Dana._ I know the voice I took for Mr. Davis's was not a black man's voice. I know a black voice usually from a white man's. It was a white man's voice, and I thought at the time it was Mr. Davis's. I did not think it was Mr. Davis's voice because of its being a white man's voice. It was my opinion that it was not the voice of a colored man. There were many other voices heard calling out at the time. My first reason for supposing it was Mr. Davis's voice was that it was not a black man's voice. Within the past three years I have casually conversed several times with Mr. Davis. Know him as I know a thousand other people in Boston. _To Mr. Lunt._ That the voice I heard was not a black man's was only one of my reasons for supposing the voice was that of Mr. Davis. Friday, Feb. 21st. _Calvin Hutchins_ was called, and testified, that he was stationed at the door, and had hold of it, when Mr. Davis came to the door to go out. Mr. Byrnes spoke to him, and I opened the door for him; that is, I let it open, there being others pressing upon the door. I let the door open enough to let him out. I saw the stairway all filled. The stairs leading up were all filled also. When he stepped round, he got his back against the side of the door, and clapped his left hand up against the door. There was a cry to go in. I should suppose by the fingers on the door that five or six got hold of it to pull it round. I had already opened it as far as for others, and there was sufficient room for him to go out. I could not tell where he went to. He stood there when the door got started, and I was slapped round outside into the passage-way. _Cross examined._ (To Mr. Davis.) To go out the best way to clear the crowd, you ought to have turned to your right; but you faced round to the door, putting your left hand upon it, and opening it more than was necessary. Some one had hold of the knob of the door at the time, and there were fingers on the edges. I was holding on to the door to give you space enough to get out, and was contending with the negroes by keeping the door from being opened more than sufficient to let you out. You slid out to the right. _To the Commissioner._ Mr. Davis's back was against the door jam, or door post on the right, when his hand was on the door. [Witness goes to the door, and explains the position of himself and Mr. Davis, at the moment Mr. Davis had his hand upon the partly opened door.] The door opens outwardly from right hand side. Didn't see Davis afterwards. * * * * * Col. Seth J. Thomas was next called, and put, by the counsel for the defence, on his _voir dire_, as to any interest he might have in the penalties provided in the act. He answered that he was the counsel for Mr. De Bree, the owner of the alleged fugitive, and that he had received written instructions from his client in relation to the case of Shadrach; but he did not hold such a power of attorney as is contemplated in the fugitive act. His relations to the case were those of an attorney and counsellor of law, and as such he had advised with Mr. Caphart, the agent, who held such a power of attorney from Mr. De Bree as is intended in the act. Fees in no manner depended upon the result of the proceedings in the case. Mr. Dana inquired what was to be proved by this witness. _Mr. Lunt._ That the person under arrest was claimed as a fugitive. _Mr. Thomas._ Was here on Saturday last, saw a person called Shadrach, who was alleged to be a fugitive slave. This evidence was strongly objected to as hearsay, but held admissible by the Commissioner. _Cross examined._ My means of information is confined to others. Don't know that I ever saw the negro before. The Commissioner said that he had ruled that the Government were not obliged to show that Shadrach was a slave, and that no further evidence was necessary to show that he was arrested and escaped. _Mr. Davis._ The question now arises under the present warrant and complaint, which alleges not only that one Shadrach was a fugitive slave; but that the same Shadrach who was a slave to one De Bree, was rescued. The Commissioner has ruled that the Government are not obliged to prove that the man under arrest was a fugitive, or was a slave. Does the Commissioner also rule that the Government need not show that the man arrested was the man claimed, and that the man rescued was Shadrach? _The Commissioner._ The Government may prove by Col. Thomas that the man arrested was the man claimed. Here the question was discussed, whether the prosecution were bound to prove that the colored man arrested was the person intended in the warrant, and named Shadrach. The Commissioner again held that the returns on the warrant were _prima facie_ evidence that the man arrested was the said Shadrach. Mr. Dana thought Mr. Riley had destroyed the presumption arising from the return by having testified that he did not personally know whether the man was Shadrach or not; all he could say was that he knew he was the man he had arrested as Shadrach. Col. Thomas was allowed to testify, that the man arrested and brought into the court room was claimed by Caphart as Shadrach. When he came into the room Caphart said, "This is my boy." Col. Thomas produced a paper and testified to it as the power of attorney. Objected to on the ground that the signature was not proved. The Commissioner held that it was admissible as one of the papers before Mr. Curtis. _Simpson Clark_, recalled. _Mr. Lunt._ I propose to show that Shadrach admitted he was a slave, and owned by De Bree, and that his name was Shadrach. _Mr. Dana._ It is true the Commissioner has admitted Col. Thomas to testify to the declaration of De Bree's agent, as evidence that De Bree claimed the man; but this evidence is still more remote. This is a criminal prosecution. Is a man to be bound by statements of others? This matter was not adjudicated. How can the man's admission that his name is Shadrach affect us? He is not placed upon the stand. He is not under oath. His admission is that his name is Shadrach, not that he is a slave. Moreover, the act provides that the party claimed shall not be received as a witness. _The Commissioner._ An alleged fugitive is only excluded from being a witness in the case of a complaint against himself as a fugitive. This does not exclude his admissions in the case of a criminal trial of another party. His admission is the best possible evidence of identity under the act. See Law in Appendix, Sec. 6. ["In all proceedings under this act"] _Mr. Clark._ Am a constable. Am employed specially. After the man was brought in, he asked who it was that claimed him. He first asked me, and I referred him to Mr. Sawin. Mr. Sawin named one person to him, and he said he did not know him. Mr. Sawin then named another person to him, and he said he did not know him. He then said he was named Shadrach, and commenced to tell me the circumstances of his coming away, but I advised him not to speak to me about it, as I might be made a witness against him. I told him not to tell any one but his counsel; and Mr. List, his counsel, told him the same, and he stopped talking to the officers and others. I was at the further side of the door when Mr. Davis went out. [Describes the scene.] _Mr. Lunt._ Did you hear Mr. Davis testify the other day, if so, what did he say? _Mr. Clark._ He said when he got down to the landing he first thought there was to be a rescue, and he saw a man pass two canes up. _To Mr. Davis._ I had some conversation with you in the room near the prisoner, after Mr. Wright came in, while the minister was here. The prisoner said something about his trust in God. _Mr. Davis._ Do you remember his saying anything further concerning his position, showing any religious feeling? _Mr. Lunt._ Religious feelings have nothing to do with this case. _Mr. Davis._ I am aware of that, I waive the inquiry. _Mr. Clark._ I don't know that I saw anything peculiar in your conduct. Many persons spoke to Shadrach, besides the person who whispered to him. While my back was turned towards Shadrach, I heard some one say to him--"We will stand by you till death." _George T. Curtis, Esq._, U. S. Commissioner, who held the examination in the case of Shadrach, testified that there was no actual disturbance during the hearing. About the time of the adjournment, it might have been a minute or so afterwards, a tall young colored man standing behind the rail, approached Shadrach, and, addressing him, said--"We will stand by you." Mr. Riley, the deputy marshal, observed the man, and heard the remark, and checked him, and sent an officer to remove him to another part of the room. Mr. Davis was present, but I did not know he was one of Shadrach's counsel. He neither said or did anything, so far as I saw, from which I could infer he was present in that capacity. Mr. E. G. Loring, and Mr. Sewall were the only recognized counsel; that is, they were the only persons who addressed the court, and I should not have allowed him more than two counsel. _To Mr. Dana._ It is common to have more counsel than address the court. I do not know that Mr. Davis may not have been one of these. I should not have limited him, except as to such counsel as should address the court. [Witness identifies the papers produced before him, and the order he passed for the adjournment, &c.] _Austin S. Cushing._ I was present on Saturday, while the proceedings were going on. After the order was given for clearing the court room, I saw a man standing behind the rail, who was disinclined to leave. He left rather slowly, and, as he was leaving, he reached his hand over to the prisoner, and, I believe, calling him "Fred," said--"We will stand by you till the death." It was a colored man. _Jessee P. Prescott_, in the employ of the Fitchburg Railroad Company, testified that he was present in the passage way at the time of the rescue, and described the scene. A stout negro man came up the passage way from the supreme court room. He was peculiarly dressed, and two negroes said to him--"You are just the man we want." Another said--"That's the boy for them," pointing to him. There being some difficulty in getting the door open, some sung out--"Go it. Life or death, we are prepared for 'em." Another said--"Damned bloodhounds." Others said--"Knife 'em." One man, whom he took to be a minister, dissuaded the other party from acts of violence. Saw the rush into the court room, and saw the fugitive borne out in the arms of four or five persons. I am sure I saw Mr. Davis go into the court room by the east door, some five or ten minutes before the door was forced open. One man had a sword. _Cross examined._ I had seen Mr. Davis before. I had seen him at the Thompson meeting at the Tremont Temple. I think I had seen him trying a case in court also. Saw you at the Chaplin meeting. The person I took to be you was in a hurry--had no hat on, and spoke to a man as he was coming in. Said, "How do you do," merely. It was not more than ten minutes before the adjournment. Mr. Lunt here rested the case for the prosecution. Mr. Dana moved the discharge of the defendant, on the ground of failure of proof, to raise the question of the construction of the statute, and asked the commissioner if he adhered to his ruling in Mr. Wright's case. The commissioner denied the motion, and said that he considered it sufficient for the Government to prove that a person claimed as a slave had been rescued. TESTIMONY FOR THE DEFENCE. Mr. Davis now called a number of witnesses for the defence, and Mr. Dana gave notice that the first set to be examined were expected to testify to the character of the government witness, Frederick D. Byrnes, for truth and veracity. * * * * * William Ross was called to the stand as to the character of Byrnes, but Mr. Byrnes being absent, was withdrawn. Mr. Riley recalled by defence. He was quite confident that Mr. Davis did not leave the court room, and come in again, just preceding the rescue. He seemed to be busy in talking with the associate counsel. The prisoner put on his coat while within the bar, before Mr. Davis left the room. _To Mr. Lunt._ On Saturday morning Mr. Davis asked me if I had any more Craft's cases. I told him not that I knew of. This was in the entry of the Court House. While in the Court Room after the adjournment, he asked me if he understood me to say in the morning that no warrant was out. I had no warrant when Mr. Davis spoke to me in the morning. The warrant was in the hands of another deputy marshal, and I had not then seen it. I told Mr. Davis that whether I had known, or not, of the warrant, I should have given him the same answer. The reply rather surprised Mr. Davis. I think no one could have entered the easterly door without my knowledge. _Cross Examined._ _To Mr. Davis._ It was between 9 and 10 A.M., that I saw you. I was standing at the outer door, you passed, and I first asked you if you had seen Mr. George P. Curtis. _Mr. Davis._ It was that which reminded me of fugitive slave warrants? _Mr. Riley._ You answered the question, and then asked about warrants. I was waiting for Mr. Sawin, and Mr. Curtis at the time. _Henry Homer,_ assistant clerk of the Municipal Court. At the time of the mob, I was standing on the steps, about three above the level of the U. S. court-room. I had a view of the whole scene. The wooden door was open, and Mr. Hutchins had hold of it. The crowd was not very large then, nor pressing very hard. Three good officers outside could have protected the door, and cleared the passage. Then there were cries of "go in, and take him out," and the pressure increased against the door, and all at once it gave way, and in the crowd went. All done in ten seconds, I should think. Never saw anything done so quick before. Saw two men take hold of Shadrach and fetch him out, about twenty other men following. The stairs were clear when they brought Shadrach out, and they kind of threw him down the stairs. The crowd was all behind him. There was no crowd obstructing the stairs all the way down. The collection was outside. In passing him out into the street, they tore his coat off, and took his hat off. His coat laid in the mud, and his hat laid there. A woman seized him by the hair and said--"God-bless you. Have they got you?" Shadrach was very much frightened,--did not seem to know whether he had got among his friends or enemies. I saw this from the window at the head of the stairs. I did not see Mr. Wright. I think Mr. Davis was on the platform, or on the third stair going down. I did not hear his voice. I think I should have noticed it, if he had spoken. I heard no white voice. The voices were all of colored people. I am well acquainted with your voice (to Mr. Davis),--I have heard the music of it often enough, both in court and out of it. I will not swear that Mr. Davis did not speak; but I will swear that I don't remember to have heard any voices but those of colored people. I had been out to get a volume to see the statute, forbidding the officers of this state from aiding in any manner in making arrests under the old law for taking fugitives. _To the Commissioner._--I remained on the stairs step above the landing until Shadrach was brought out. I then went up stairs to get out of the way. I saw no man with two canes; saw no man with a club; saw no man with a sword. I am a justice of the peace, but I did not know what duty it imposed on me at that time. The affair was sudden, and I was somewhat excited. _Afternoon._--Gustavus Andrews, jailor. I have known Frederick D. Byrnes ever since he came to Boston. His general reputation for truth and veracity is bad. _Cross Examined._ I heard his character discussed by officers, and other persons. I cannot call to mind at this moment any person, not an officer, whom I have heard say he was not a man to be believed. _Hiram Wellington, Esq._ Attorney at Law. Had known Frederick D. Byrnes about seven years--his general reputation for truth and veracity is decidedly bad. _Cross Examined._--I never had any difficulty with him, that I know of. He once brought a small suit against me for constable's fees, and recovered, I believe. It was in the justices court. I don't know that he ever brought any complaint against me. If he did it was a secret one. I never knew of his complaining against me to the grand jury. _William Ross_, tailor.--I should like to know what I am summoned here for. I don't wish to testify. Have known Mr. Byrnes some three years. His general character for truth and veracity, I should say, is decidedly bad. _Cross Examined._ Who have you heard speak of it? I don't wish to say. There have been twenty people in my place within a week to inquire how such a liar could get into office. I was once called to court in Cambridge to testify about his character, and he called upon me to ask what I had against him. He is a well-known man. He became known on account of having been brought up for adultery. I could name people whom I have heard speak of him. I have heard Martha Adams speak of him; she lived with him when he kept the Cape Ann Cottage, which was mysteriously burned down, and the insurance recovered. I might name others, but I don't think I am bound to mention them. Mr. Byrnes knows who they are. _Derastus Clapp_, Constable.--Have known Mr. Byrnes five or six years; have not heard his character for truth called in question these two years; have not heard it discussed within that period. He has kept in this city during this time. _The Commissioner._--I think you cannot ask about reputation two years ago. _Mr. Lunt_ said it was clearly inadmissible. _Mr. Dana_ read a case in Wendall's Reports in which it was decided that the previous reputation could be shown. It is often the best evidence. _The Commissioner_ thought he should take time to decide the point. _Mr. Lunt_ said there might be a difference of practice in different states. _Ira Gibbs._--Have lived in Boston between 30 and 40 years--was city marshal. Have known Mr. Byrnes several years. I can't say but that I have heard his character spoken against in relation to truth and veracity. I don't think I have heard it frequently spoken about, but when spoken of, it has been against him. _Charles Smith_--Constable and Coroner--Have known Mr. Byrnes about ten years; his character for truth, &c., bad. _Cross Examined._--The most I have heard about him has been from officers. Mr. Dexter keeps in the office with me. He has had difficulty with Mr. Byrnes. So has Mr. Leighton, who keeps in our office. I think I have heard his truth discussed, in reference to cases in which he was a witness. One of the cases was at East Cambridge. It depended wholly on his testimony, I understood, and the other side prevailed. These discussions about his character were revived on account of his being appointed deputy U. S. marshal. I don't know that those who spoke of him wanted the office. Don't know any body who wants his office. Officers _Rice_, _Dexter_, _Neale_, and _Luther Hutchins_, examined as to the character of Mr. Byrnes for truth, testified to the same effect as the preceding witness. _Thomas S. Harlow, Esq._, Counseller at Law. I have known Frederick D. Byrnes seven or eight years. His reputation for truth and veracity is bad. _Cross Examined._--Have heard him spoken of in the regular course of business, about the courts among officers. I had some business connection with Mr. Wellington, when he was sued by Mr. Byrnes. At this stage, the court adjourned till Saturday, Feb. 22. _Saturday, February 22d._--Commissioner Hallett took his seat at 10 o'clock. Defence resumed. On the question reserved yesterday, the Commissioner decided in relation to the knowledge of Constable Clapp of the reputation of Mr. Byrnes, he having stated that he had not heard his truth and veracity spoken of for two years, that he must first be inquired of generally as to Mr. Byrnes's reputation. Mr. Clapp answered as he did yesterday, and then Mr. Dana was allowed to ask him if he knew anything of his reputation for truth prior to that period. He replied that for about five years previous to the past two he had heard his reputation for truth and veracity spoken of. It was bad. _Cross Examined._--When he was so spoken of, reference was had to some business matters; to a civil case at New Bedford, and a criminal case in Boston. It was his character for truth and veracity that was spoken of, and had no relation to his honesty in not paying what he owed. _John G. King. Esq._, Counsellor at Law.--I was in this court room on Saturday forenoon. Mr. Davis was in when I came in. I ascertained that he was acting as counsel for the prisoner. After the adjournment I left Mr. Davis in consultation with the other counsel. Before leaving I drew up a power of attorney, which the man Shadrach signed. It was made to Robert Morris, and was intended to give him authority to act in reference to an application for a habeas corpus. When Mr. Riley was clearing the room, Shadrach pointed out Mr. Davis as one of his counsel, and as such Mr. Riley allowed him to stay. _Marcus Morton, Jr., Esq._, Counsellor at Law.--I was sent for on Saturday morning by Shadrach. I had known him from six to nine months. There were but few persons in the court room when I came in. It was proposed to raise money for his value, if it should be decided to send him back. I went to the office of Colonel Thomas, the claimant's counsel, in relation to procuring the man's liberation in that way. Nothing resulted from the conversation with Colonel Thomas. I don't know that Mr. Davis knew of it. I know that Mr. Davis was twice recognized by Shadrach as his counsel. When I came in to the court room, Shadrach appeared excited, and was talking a good deal. I told him he had better keep his mouth shut, and not to speak to any person except his counsel. He asked who he should have, and I designated among others, Mr. Davis for counsel. _Cross Examined._--I communicated my intention to E. G. Loring. I was to have an answer from Colonel Thomas on Monday morning. I don't recollect mentioning this to any of the counsel. I did mention it to several people. The case had been postponed till Tuesday, before I called upon Colonel Thomas. _Charles List, Esq._, Counsellor at Law. I was in this room on Saturday. Mr. Davis was here in the capacity of counsel for Shadrach. I heard Shadrach ask him to serve as counsel. Mr. Davis joined Mr. Sewall and myself at the table in examining the papers sent on by the owner for establishing his claims to Shadrach. Mr. Davis examined them very thoroughly, and expressed a decided opinion that the papers were not sufficient under the statute. I asked Mr. Davis who the men guarding the prisoner were. He said one was Sawin, whom he knew well, and he would inquire of him the other's name. He did so, and told me his name was Clark. Did not state to Davis my object in asking. Was told here there were to be proceedings for habeas corpus. I asked Riley for copy of the warrant. He said he had one for Mr. Dana, which he was to have before 2 o'clock. I told him if he would let me have it, I would give it to Mr. Dana before 2. Sewall and Mr. Davis were then present. I went to Mr. Dana's office. I left eight or ten minutes before two, leaving Mr. Davis. I think Mr. Davis did not leave the court room any time while I was there. I was there from the commencement of the hearing, except for a short time that I stepped into the law library, to see if a particular gentleman was there. I think I went into the library before the Commissioner left. I spoke with Mr. Davis frequently in the court room, and I think I should have known it, if he had gone out. No attempt had been made to force the door when I left. I had no difficulty in getting through the people in descending the stairs, or going through the passage, getting out of the court house. _Mr. Dana_ here proposed to prove that Mr. Davis at various places and times had advised the colored people against acts of violence. [The Commissioner was inclined to allow the inquiry]. _Mr. Lunt_ objected to the inquiry, the charge against Mr. Davis being that he committed a specific act. _Mr. Dana_ waived the point for the present. _Mr. List_ resumed. It was agreed in the court room that the counsel should hold a meeting at Mr. Sewall's office at three o'clock, and another meeting was to be holden at half past nine the next morning. The meeting was not held that afternoon on account of the rescue. The meeting was held Sunday morning, and Mr. Davis was present. Mr. Davis called attention again to the insufficiency of the papers. Question then arose whether proceedings would go on, and what Commissioner might do. _Cross Examined._--I am not sure that Mr. Davis was one of those who agreed to hold the meeting in the afternoon. There were six who were considered as counsel. These were named E. G. Loring, Mr. Sewall, Mr. Davis, Mr. Morris, Mr. King, and myself. I cannot say that Mr. Davis was not out of my sight five minutes. When I went out, the officer opened the door sufficient to let me out, using no particular care with the door. There were in the entry about half as many people as it would contain; chiefly negroes; did not recognise any one, black or white, that I knew. I first went to Mr. Dana's office. I was in Court street going towards Washington street, when the rescue took place. I could not believe it when I first heard of the rescue, and went back to inquire. I had thought it possible a rescue would be attempted, for the colored people were very much against the law. I have spoken against the law, and probably shall again. [Manifestations of applause on the part of the spectators. Order commanded by the Commissioner]. _Mr. Lunt_ here put the question,--Do you approve of the rescue? Mr. Dana objected, and the Commissioner sustained the objection. Mr. List preferred to answer, and said that he was opposed to any violation of law, and had advised against violations of the law. _George W. Adams, Esq._, Counsellor at Law.--I was coming into the East door of the court house near 2 o'clock, on Saturday, met Davis going through the passage, near the marshal's office,--saw him pass between the pillars in front of the office. I talked with him two or three minutes. I heard noises and shouts above, while I was talking with Mr. Davis. Men were running in and out, when I left him, I ran out to Court street, and saw the crowd moving off. _Alonzo F. Neale_, Constable Neale--I was in the court room on Saturday--was called in by Mr. Noyes, the messenger of the U. S. Courts--I saw Mr. Davis in the court room. I saw him go out of the court room. Somebody asked me to let Mr. Davis out. I said I was not the door keeper. The person then spoke to Mr. Hutchins, who opened the door, and Mr. Davis passed out. I suppose now it was Mr. Wright who asked me to open the door for Mr. Davis. I think Mr. Davis, Mr. Wright, and a third person, a stranger, went out about together; and my attention was called off for a moment, by noticing the colored man get up, put his coat on, and walk about. Then came the yell, and the forcing of the door. Doubting whether as a constable, I had any right to interfere, I concluded not to do anything until some emergency occurred. I saw Mr. Hutchins driven away from the door. It is my opinion that Mr. Byrnes was behind the door. If so, he could not see outside the doorway. At the time of the first rush, there was one or two near Mr. Hutchins, and Mr. Byrnes might have been one of them. I should think the prisoner got up and put on his coat just about the time Mr. Wright and Mr. Davis passed out. When the yell came the prisoner ran towards the door on the East side, and then back on the other side of the rail to the front door. I was somewhat excited, but I helped in holding on to the door. John H. Riley was on the other side, and Patrick Riley was walking back and forth. I felt rather vexed that they did not come to the door attacked, to assist in closing it, and I withdrew from the door. John Riley was calling for assistance. There had been pounding at the doors before the prisoner put his coat on, and shew signs of excitement; and there had been a good deal of loud talking outside. I was in the court room about an hour. I should not think Mr. Davis went out after I came in, until he went out at the time I have spoken of. _George W. Minns, Esq._, Counsellor at Law.--I was in this court room between one and two on Saturday,--saw Mr. Davis was here. Including the officers and counsel, there appeared to be about a dozen persons in the court room, when I was admitted. Heard Mr. Riley say the prisoner would be allowed to see his friends from time to time, and every thing reasonable done to make his situation comfortable. Saw Mr. Davis--his manner was calm. He remained so till an incident occurred. Some person behind where I was sitting said something, concluding with the remark, "Kill the negroes!" I thought the remark came from Mr. Byrnes, but I don't know. Mr. Davis, at the time, was walking from the table to me, and heard it. He was irritated by the remark, and said--"Then, on that principle, you ought to have your throats cut." Mr. Byrnes and another officer were behind me. I was sitting within the bar, next to the railing, which was between me and Byrnes and the other officer. I know Mr. Byrnes' voice, and am able to recognize it, and I thought at the time that it was he who made the remark, but I cannot swear. It was not very loud, and I did not turn round to look at Mr. Byrnes. I didn't think from the tone, that the remark was made by one who intended to kill the negro, but I thought it was made for the purpose of irritating or insulting Mr. Davis. My attention was chiefly occupied in looking at the prisoner. _Frederick Warren_, deputy marshal. I left the court room about five minutes before two o'clock--went down stairs--came back by the passage up to the supreme court--went to the closet, and there heard the shout; came out of the closet; found the crowd more dense than five minutes before, and the door being pulled and vibrating; proceeded to the city marshal's office, to notify the marshal, who said he could do nothing. I told him the crowd was forcing the door. I think I saw a white person near the corner of the recess, when I entered the closet. When I got back from the city hall, the rescue had been made. [The object of Mr. Warren's testimony was to show that it was he, and not Mr. Davis, who was seen in the passage, and to go into the court room a few minutes before the rescue]. _Elizur Wright,_ one of the editors of the Commonwealth,--I was in the court room on Saturday,--I came about half past one,--I had previously been at the Adams House, attending a meeting of the proprietors of the Commonwealth. I met some reporters coming out of the court room, when I got to the door. The officers refused to admit me. I said I was connected with the press, and was soon admitted. I saw Mr. Davis, but was not acquainted with him. Did not know his name. Understood they had been examining papers. Had no conversation with Davis, except what I now state. I got into a little difficulty with Mr. Riley, by supposing him to be the counsel for the claimant. Mr. Davis then told me that Mr. Riley was the deputy marshal. I said to some of the people, that there were not many persons outside, and I may have said so to Mr. Davis. When Mr. Davis went out, I was just about where Mr. List is now sitting, in front of the clerk's desk. At this stage, the court adjourned till Monday. * * * * * _Monday, February_ 24.--Mr. Commissioner Hallett resumed the examination at 10 o'clock. _Elizur Wright_ recalled. I was in the court room fifteen or twenty minutes. It was perfectly impossible that Mr. Davis could have gone out and come in again without my knowing it. _Cross Examined._ Mr. Sewall stated to me the _quo modo_ of the arrest. About half the time I was in there I was occupied in explanations with Mr. Riley, after the altercation which arose from my mistaking him for the counsel for the claimant. The explanations resulted in his giving me permission to speak to Shadrach. I then shook Shadrach by the hand, and spoke a few words to him. While Mr. Sewall was telling me that he thought a good defence could be made for Shadrach, that there would be a probability of his getting off upon the proof, there were two or three persons standing about, and some one of them said there might be an interference on the part of the colored people. Mr. Sewall said that would be perfectly ridiculous, and I said so too. It was in that connection, I think, that I said there were but few persons outside. I had come from a meeting of the persons interested in the Commonwealth. _Mr. Lunt_--Are you one of the editors of the Commonwealth? [Witness did not answer, but smiled]. _Mr. Dana_--I object to the question, and ask the purpose of the district attorney in proposing to put in anything in relation to the connection of the witness with that newspaper. _The Commissioner_ remarked that the inquiry was irrelevant, unless the district attorney expected to show from it a bias on the part of the witness. _Mr. Wright_ now, without any further questioning, stated that he was one of the editors of the "Commonwealth." The conversation was about the possibility of the colored people taking it quietly. Mr. Sewall said, I hope there will be no violence. _Richard H. Dana, Jr._ was called to the stand by Mr. Davis. [Mr. Dana said that when he entered upon the case, he did not suppose he should be a witness, or he would have declined acting as counsel. _The Commissioner._ There is no impropriety in it in a preliminary inquiry; and in your case, never.] On Saturday morning, Mr. Davis called at my office and told me that a man had just been arrested as a fugitive slave, and was before the Court, and proposed that we should offer our services as counsel. I asked if he had counsel. Mr. Davis said it was a sudden arrest, and a case for volunteers. We went over to the Court Room. The Court was in session. There was a division of labor. It was agreed that I should take charge of the Habeas Corpus and of a writ _de homine replegiando_, and Mr. Davis was to remain and assist at the hearing. I went to the Marshal's office, and there drew up a petition for a habeas corpus, and filled out a writ _de homine replegiando_. Deputy Marshal Warren was present. I left word with the counsel to send me down some one to swear to the petition in the prisoner's behalf. Mr. Morris came with Mr. Loring and swore to the petition. I then went to Chief Justice Shaw, and asked for the writ. He refused it, for reasons which he gave. I returned to the Court Room, reported my proceedings to the counsel, and prepared to obviate the objections of Judge Shaw. Mr. Davis knew of all these proceedings. Just then Mr. Curtis adjourned the Court to Tuesday. Finding that there was to be no hurrying, I agreed with the counsel, (including Mr. Davis.) to meet them in consultation at 3-1/2 P.M., at Mr. Sewall's office. Bespoke a copy of the warrant from Mr. Riley, and returned to my office. A little after half past one, I received a message that, by the Marshal's permission, the counsel were to remain awhile in the Court Room for consultation, and wished me to join them there. I sent word that I would come immediately. I was accidentally detained, by a client, until nearly 2 o'clock, and, in the interval, the rescue had taken place. _To Mr. Lunt._ I heard some conversation from people of all opinions, in the way of conjecture or inquiry as to whether the blacks would resort to force, but nothing in the way of advising or planning such a course. _Mr. Lunt._ Can you say that none of those who acted as counsel here, spoke of it? _Mr. Dana._ I can say, most positively, that I never heard one of the gentlemen who acted as counsel here, say any thing in the way of advising or planning a resort to violence, or that indicated any knowledge or belief on their part that it would take place. _Mr. Lunt._ Did you attend the meetings at Faneuil Hall in October, relating to the Fugitive Slave Bill? _Mr. Dana._ One I did, the other I did not. I do not recollect the dates. When I attended, I read a letter from President Quincy, at the request of one of his family. That will fix the date. _Mr. Lunt._ Did you speak at that meeting? _Mr. Dana._ I object to these questions as matter of right. I am not obliged to answer them. But, personally, I have no objection to answering them. _Mr. Lunt._ I think it would be a satisfaction to the community to know from yourself how the matter stands as to these meetings. _Mr. Dana._ On that ground, I have no objections to answering. I did not speak at this meeting, for reasons of my own. For the same reasons I did not attend the second meeting. I wrote a set of resolutions, which I believe were adopted. These I am ready to stand or fall by. _The Commissioner._ I read them. They were unexceptionable. _Mr. Dana._ Unexceptionable in a legal view; but your Honor could not agree to the opinions expressed. After the meeting had adjourned, as I was informed, (and as it was stated in the papers,) a resolution was put, and declared by the crowd to be passed, but it was irregular and not noticed by the officers. That resolution was objectionable, in my opinion. But in none of the meetings or consultations I have attended, have any of the gentlemen recommended or suggested use of force against the law. The private meetings have related to the use of legal defences and modes of raising and presenting constitutional questions, and have been composed of lawyers, almost, if not quite, exclusively. The opinions of the defendant, so far as I know, are the same as mine. He believes the act unconstitutional and unjust, and will give it no voluntary aid, but will not recommend or join in forcible violations of it. I am willing to say this, since we have got upon the subject, although it is not testimony. _Charles H. Brainard._ I have heard Mr. Byrnes' reputation for truth and veracity spoken of, but not until these trials had commenced. _Charles C. Conley._ Had heard Mr. Byrnes' truth, &c., spoken against for some time back. _Charles Mead_ examined on same point, but did not testify definitely. _Mr. Dana to Mr. Lunt._ It was in the lobby that I saw Chief Justice Shaw in relation to the habeas corpus. I came into the court room and reported the result to the counsel. It was after the proceedings before the Commissioner were over. _To Mr. Davis._ My impression is that I saw some of the crowd enter the door on the west side of the building after I heard the yell in the Court-House. Mr. Dana here proposed to put in the testimony given by Mr. Davis on the examination of Mr. Wright, on the ground that the government had asked Mr. Clark whether he heard Mr. Davis's testimony in Mr. Wright's case, and he had stated a portion of it. Mr. Lunt objected. Mr. Dana said the government had put it in either as conversation or as confession. In either case the defendant was entitled to the whole of it, under the general principles of evidence. _The Commissioner._ You may put in all that part of Mr. Davis's testimony which concerns the statement of transactions which Mr. Clark testified that Mr. Davis said, but no more. Mr. Dana then read a small portion of Mr. Davis's testimony, and said he should rest his defence for the present. _J. S. Prescott_, recalled by the government.--I recollect seeing Mr. Warren in the passage-way after the man was carried down stairs; but he was not the person I saw before the rescue, and who went in by the door next to the Marshal's desk. That man spoke to one of the colored men. I also saw a man come out of that door, go into the closet, and return into the court room by the same door. _Cross-ex._ I saw Mr. Warren start on the run down stairs. Saw Mr. Neale too. I said to him--"What, have they rescued the man?" and he said they had. He appeared agitated. At the time I spoke to Mr. Neale I knew they had taken the negro out. I spoke to Mr. Neale because I took him for an officer. I was at the Court House to see a Mr. Pearson in the Supreme Court. After the rescue I had some conversation in Court Square on Saturday afternoon with Mr. Simon Hanscom, a reporter. I did not tell him I was in the Court Room; but told him I was present when the crowd rushed in. I knew that several people saw me there. I had been told I had been seen there. I felt it to be my duty to tell Mr. Riley what I knew about the proceedings, as I regarded it as outrageous. I may have said in one sense, I was glad the man had got away, so far as he was concerned. I gave notice first to Mr. Riley of what I knew. I expected to be called as a witness. Knew that it was known I was here. Think I should not have spoken to Mr. Riley if I had not known that I had spoken of having been here. I do not exactly approve of the law, for I think there might be a trial by jury; but so long as it was the law, I did not want to see it put down in the manner it was. Some one pointed me out to Mr. Hanscom, as a person who saw the whole of it. I was laughing about it. Mr. Hanscom called me aside. I could not help laughing. My conversation with Mr. Hanscom was a very short one. I think I said something about mob law. Mr. Hanscom tried to get me to talk more; but knowing him to be a reporter, and the paper he was reporter for, I did not say much to him. _To the Commissioner._ The person I took to be Mr. Davis, in the passage, had spectacles, I think, and had his hat in his hand. I did not think there was a rescue intended until they drew the man out. I supposed the negroes, in trying to get the door open, only wanted to get in and see the trial. A few minutes before, in the street, I had been told that there was a slave case on trial in the U. S. Court. _Mr. Sawin_, recalled. When Mr. Davis said we all ought to have our throats cut, he spoke to me. Mr. Byrnes had said nothing about killing the negro. I heard no such remark from any body. I saw Mr. Minns in the room. _The Commissioner._ Why didn't you report the remark of Mr. Davis to the Commissioner? _Mr. Sawin._ I did not think enough of the remark to report it to the Commissioner. I was friendly to Mr. Davis, and had known him a long time. _Cross-ex._ It was a private remark. James H. Blake, late city marshal, Geo. Woodman, Nathan Hyde, John S. Phillips, and F. L. Cushman, Custom House officers, were then called to testify concerning the character of Mr. Byrnes. They had known him casually, and had never heard any thing said about his character. Robert McGill, Brigham N. Bacon, Levi Whitney, Geo. W. Barker, and M. C. Woodman, of the Merchant's Hotel and Exchange Coffee House, testified that they had known him as frequenting their houses several years, and never heard his character called in question. R. M. Kibbe, keeper of a billiard-room and eating-house, Joseph Cochran, keeper of a restaurant, G. L. Gilbert, late of California, previously a dealer in spirituous liquors, J. G. Smith, wholesale wine and liquor dealer, Henry Gilbert, dealer in ale and liquors, and Daniel Leland, Jr., vinegar manufacturer, had known Mr. Byrnes as a customer several years, and have not heard his character for truth questioned. Sylvanus Mitchell, Richard Nutter, ---- Gilbert, and James H. Mitchell had known him in Bridgewater 15 or 20 years ago, but had never been intimate with them. Not known much of him of late years, and had not heard his character for truth questioned. George W. Phillips, attorney at law, had known Byrnes several years as an officer, and had never heard his character called in question until within a week. John L. Roberts, a mason, had known Byrnes by name for a year, but had never heard him spoken of. Richard Hosea, constable, testified that his character was good as far as he knew. John Roberts, book-binder, had known him several years, not as an acquaintance or neighbor, and had never heard his character doubted until last week. Samuel G. Andrews, a printer, living in Somerville the last year, had met him 4 or 5 years, occasionally, and had never heard his character questioned. Robert T. Alden, sail-maker, had known him 10 years, never heard his character for truth doubted. Cross examined. Had met him at balls and assemblies, had known him as a constable, plumber, and keeper of Cape Cottage. It appeared from cross examination of the other witnesses, that Mr. Byrnes had also been known as a farmer, iron founder, tack maker, sailor, keeper of a restaurant, keeper of a bowling alley, real estate broker, grocer, and deputy marshal. None of the witnesses had been his neighbors since he left Bridgewater. Elisha P. Glover, officer in the employ of the marshal. Had never heard Byrnes' character called in question until a year ago, don't recollect hearing it spoken of since then. Did hear one of the witnesses speak of it a few days after. Was a witness for Byrnes at that trial. _Simon P. Hanscom_ was now called for the defence, and stated that he was one of the reporters for the Commonwealth. He was called for the purpose of proving that Mr. Prescott, one of the government witnesses, had stated that he saw what was done in the court room at the time of the rescue. A short time after the rescue, he saw Mr. Prescott in the street, and, in his capacity of reporter, applied to Mr. Prescott for information, he having stated that he saw the rescue and knew all about it. He supposed at the time Mr. Prescott gave him the account, that he was relating what he had seen only. This was his conclusion at the time, and, the question having been raised, he was not now able to separate the hearsay statements made by Mr. Prescott, from the facts which he stated upon his personal knowledge. Those statements differed from the observations of Mr. Wright, who was in the court room, particularly in reference to the knocking down of officers, &c., which Mr. Wright said did not take place. Prescott said there were officers knocked down at the door, that one colored man knocked an officer under the rail of the bar, and another took the sword and brandished it in the room. Mr. Davis, who was inquired of on that point, said that there were no blows struck. Don't know what part of the transaction Davis spoke of. Therefore the information he received from Mr. Prescott was not used in making up the account of the rescue which was given in the Commonwealth "extra" published on Sunday morning. _Cross examination._ Mr. Prescott said it was well done, and he appeared very much pleased, as many others did. I was also very much pleased at the escape; and am always gratified at a person's gaining his liberty. He had no recollection of expressing any approbation of the manner of the rescue. I am not in favor of violating the laws. I should have been very glad if Shadrach had not been arrested. _Mr. Lunt._ Is Mr. Davis often at the office of the Commonwealth? _Mr. Hanscom._ I have seen him there once or twice before the rescue, and once since. The evidence was here announced to be closed on both sides, and the court was adjourned to Tuesday, 10 o'clock. * * * * * MR. DANA THEN ADDRESSED THE COURT, AS FOLLOWS: _May it please your Honor:_ Certainly, Mr. Commissioner, we are assembled here, this morning, under extraordinary circumstances. I am not aware that since the foundations of our institutions were laid, since we became an independent people, since the Commonwealth of Massachusetts had an independent existence,--I am not aware that a case similar to this has once arisen. I do not know that ever before in our history, a judicial tribunal has sat, even for a preliminary hearing, upon a gentleman of education, a counsellor of the law, sworn doubly, as a Justice of the Peace, and as a Counsellor in all the Courts, to sustain the Constitution of the United States and the laws made in pursuance thereof,--a gentleman of property, family, friends, reputation, who has more at stake in the preservation of these institutions than nine in ten of those who charge him with this crime;--who stands charged with an offence (in the construction now attempted to be put upon the statute) of a treasonable character, a treasonable misdemeanor, an attempt to rescue a person from the law by force, an attempt to set up violence against the law of the land. Therefore it is that this trial attracts this unusual interest. It is not that, so far as this defendant is concerned, the question whether he be bound over here, or whether the District Attorney takes his case directly to the Grand Jury, can make the slightest difference in the world; but because the decision of this tribunal, though only preliminary, will have great effect upon the community, and will be carried throughout the United States. It is because of the political weight attached to it, that such anxiety is felt for the result. For the simple rescue of a prisoner out of the hands of an officer, is a thing that occurs in our streets not very unfrequently, and often in other cities. It might have occurred up stairs, and not have attracted a moment's attention. Who, Mr. Commissioner, is the defendant, at the bar? I have said that he is a Justice of the Peace, sworn to sustain the laws, a counsellor of this court and of all the courts of the United States in this State, sworn doubly to sustain the laws. He is a gentleman of property and education, whose professional reputation and emolument depend upon sustaining law against force; a man whose ancestors, of the ancient Pilgrim stock of Plymouth, are among those who laid the foundations of the institutions that we enjoy. He has at this moment so much interest in the way of personal pride, historical recollections, property, in family, reputation, honor and emolument in these courts--so much at stake as to render it impossible to believe, except on the strongest confirmation, that he should be guilty of the offence charged against him at this moment. The charge against the defendant involves the meanness of instigating others to an act he dares not commit of himself, of putting forward obscure and oppressed men, to dare the dangers and bear the penalties from which he screens himself; meantime holding up his hand and swearing to obey the laws of his country which he is urging others forward to violate. Since, then, my friend has done me the honor to ask me to appear for him before this tribunal, from among others so much better qualified, I feel that I am placed in circumstances calling for some allowance, some liberty for feeling and expression. We think ourselves happy that in this State trial, this political State trial, we appear before one who has been known through his whole life as not only the advocate of the largest liberty, but the asserter and maintainer of the largest liberty of speech and action, at the bar, in the press, and in the forum, carrying those ideas to an extent to which, I confess, with my comparative conservatism, I have not always seen my way clear to follow. Therefore, I shall look for as large a liberty as the case will allow me in addressing myself to this court; in bringing forward all considerations, in suggesting all possible motives, in commenting upon all the circumstances that lie about this cause. At the same time I shall expect from the person who sits clothed with the authority of an Executive whose will is as powerful as that of any sovereign in Christendom, except the Czar of the Russias--I shall expect from him no unnecessary interruptions, no extraordinary appeals, no traveling out of the usual course of a simple judicial proceeding. Why is it that the defendant stands here at this bar a prisoner? How is this extraordinary spectacle to be accounted for? I beg leave to submit that the whole history is simply this. There has been a law passed in the year 1850, by the Congress of the United States, which subjects certain persons, if they be fugitive slaves, or whether they be or not, subjects them to be arrested and brought into Court, to have the question of their liberty and that of their seed forever, tried by a so called judicial tribunal. Those persons are mostly poor. They belong to an oppressed class. They are the poor plebeians, while we are the patricians of our community. They are of all the people in the world those who most need the protection of courts of justice. I think the court will agree with me that if there is a single duty within the range of the duties of a counsellor of this court which it is honorable for him to perform, and in the performance of which he ought to have the encouragement of the court, it is when he comes forward voluntarily to offer his services for a man arrested as a fugitive slave. Therefore it is that I think it somewhat unfortunate the District Attorney should have thought it necessary to arrest counsel. If there be a person against whom no intimidation should be used, it is the counsel for a poor, unprotected fugitive from captivity.--The question is, whether a man and his posterity forever, the fruit of his body, shall be slave or free. It is to be decided on legal principles. If there is a case in the world that calls for legal knowledge and ability--that calls for counsellors to come in and labor without money or price, it is a case like this. I think it a monstrous thing, unless it be a case beyond doubt, that counsel should have been selected to be proceeded against in this manner. I take the facts to be these:--Mr. Davis, being a counsellor of this Court, and possessed of no small sympathy for persons in peril of their freedom, when it was known that a person claimed as a fugitive slave was arrested, and in a few hours, perhaps, to be sent into eternal servitude, Mr. Davis steps over to my office and suggests to me that we offer our services as counsel. He leaves his business, which is large, while five courts are in session in this building. He sits here that whole Saturday forenoon by the prisoner, to whom he is recommended by Mr. Morton. He is twice spoken of to Mr. Riley by the prisoner, as one of his counsel. He sits from eleven to two o'clock, absorbed in this case, his feelings necessarily excited, (and I should be ashamed of him if they were not excited,) but his intellectual powers devoted to the points of law in this case, and your Honor knows that the points are various and new. By the courtesy of the Marshal, the counsel were permitted to remain here, because the Marshal had not yet determined where to keep his prisoner. They remained until the time for the prisoner's meal. When the business is over, they leave. Some one must go out first, and somebody must go out last. It is nothing more nor less than the old rule of "The Devil take the hindermost." Mr. List leaves the Court-room--Mr. Warren goes out. All the officers are to go to dinner, and the door is to be opened and closed each time. Dinner is to be brought in. Twenty times that door is to be opened. In the mean time about that door is collected a small number of persons of the same color with the person then at the bar, very likely, perhaps, to make a rescue, some advising against it, and some for it, with considerable excitement. Mr. Davis slides out of that passage-way and goes to his office. Mr. Wright is prevented from going by the crowd. Not a blow is struck. Not the hair of a man's head is injured. The prisoner walks off with his friends, straight out of this Court-House, and no more than twenty or thirty persons have done the deed. Three men outside of the door could have prevented the rescue. Mr. Riley did not suspect it. Mr. Warren did not suspect it. Mr. Homer did not suspect it. Mr. Wright did not suspect it. Nobody suspected it. The sudden action of a small body of men, unexpected, and only successful because unexpected, accomplished it. He is out of the reach of the officers in a moment, and there's the end of the whole business. No premeditation! No plan! Counsel knowing nothing about it! Nobody suspecting it, and the whole thing over in one minute! But, may it please the Commissioner, the law is violated--the outrage is done. This is a case of great political importance, and the deputy Marshal thinks it his duty, (I think in rather an extraordinary manner,) instantly, before any charge is made against him, before any official inquiry is started, to issue a long affidavit, sent post haste to every newspaper, and hurried on to Washington,--Congress in session,--a delicate question there,--Northern and Southern men arrayed against each other. Then comes an alarm. Then the Executive shrieks out a proclamation. A standing army is to be ordered to Boston. All good citizens are to be commanded to sustain the laws. The country thinks that mob law is rioting in Boston--that we all go armed to the teeth. The Chief Magistrate of fifteen millions of people must launch against us the thunders from his mighty hand. In the meantime, we poor, innocent citizens are just as quiet, just as peaceable, just as confident in our own laws, just as capable of taking care of ourselves on Saturday evening as on Friday morning. Only some frightened innocents, like the goose, the duck and the turkey in the fable, say the sky is falling, and they must go and tell the king! But we can all see now that there was too much alarm. We begin already to feel the reaction. A state of things has been created over this country entirely unwarranted by the circumstances. And I trust that the Commissioner will be able to say to the country, say to His Excellency the President of the United States, say to the world, that nothing of this sort has occurred; that there has been no preconcerted action; that the Marshal cleared his room, and every body went out peaceably; that nobody expected the rescue; that there was no crowd in the court-room; but the blacks, feeling themselves oppressed and periled by this law, standing at that door, behind which their friend and companion is held a prisoner, rush in, almost without resistance, carry off their prisoner, and not a blow is struck, not a weapon drawn, not a man injured. That is the end of it. There is no need of standing armies in Boston! And, above all, we trust that the Commissioner will be able to say to the world, to the President, and to Congress, that this effort was the unpremeditated, irresistible impulse of a small body of men, acting under the sense and sight of oppression and impending horrid calamities, against the advice of some of their own number; and that no gentleman of education, no counsellor of this court sworn to obey the law, has instigated these poor men to its overthrow. Massachusetts is not in a state of civil war, and her most valued citizens are not engaged in overturning the foundations of civil government. Why should the criminal proceedings of this day have taken place at all? What is the evidence? The learned District Attorney thought proper to suggest to the Court that there was further evidence which might be presented in another stage of this proceeding. That, I am sure, fell with as little weight upon the mind of the Commissioner as it would if we, on the other hand, had said, as is the fact, that we have a large amount of evidence that might yet be presented in behalf of Mr. Davis. This is not a game of brag! It is not upon evidence that is not here, but upon evidence that is here, that this case is to be decided. Here has been mortified pride, here has been fear, here has been the dread spectre of Executive power, stalking across the scene, appalling the hearts, and disabling the judgments of men. Excited men suspect everybody. Every person who ever attended a public meeting is suspected. A political party is to be put under the ban. There is nothing so rash as fear. There is nothing so indiscriminating as fear. There is nothing so cruel as fear, unless it be mortified pride--and here they both concurred. Instructions come from a distant Executive power that knows nothing of the facts. And the fear of that power and patronage is the reason, may it please the Commissioner, why suddenly, on Saturday or Sunday, before the subject can be examined and the truth ascertained, a warrant is got out against a person of the character and position of Mr. Davis. But when we look at things in their natural light, when there is a calm investigation of the facts, I think the Government will see and regret its rashness and delusion. I understand, may it please the Commissioner, that there is to be a great deal done on this case of an unusual character. We have been threatened with the reading of newspapers; and public meetings, and political principles are to be charged as treasonable. Yes! political considerations are brought to bear. We cannot tell what limit is to be put to this. Therefore, not knowing what is before me, having no ordinary rules of procedure to guide me, the Commissioner will allow me to try to anticipate the attacks as well as I can. For having had it intimated that the argument will not follow legal evidence, but extracts from newspapers-- _Mr. Lunt._ That is very strong. I have offered you everything of that kind that I have to say. _The Commissioner._ The gentleman proposes to read as part of his argument, an article from the newspapers. _Mr. Dana._ He proposes to read it as evidence, to affect the mind of the court on the facts. I cannot object to it now. When it is offered, I have no doubt it will be properly met by the Commissioner. I say, not knowing what is to come upon me, I must take a pretty wide margin. In that view of the case, it will not be improper if I state what I understand to be the true position of Mr. Davis, with reference to the principles involved in this case. May it please your Honor, we are not subjects of a monarchy, which has put laws upon us that we have no hand in making. I do not hesitate to say, here, that if the act of 1850 had been imposed upon us, a subject people, by a monarchy, we should have rebelled as one man. I do not hesitate to say that if this law had been imposed upon us as a province, by a mother country, without our participation in the act, we should have rebelled as one man. But we are a republic. We make our own laws. We choose our own lawgivers. We obey the laws we make, and we make the laws we obey. This law was constitutionally passed, though not constitutional, we think, in its provisions. It is the law until repealed or judicially abrogated. Who passed this law? It was passed by the vote of the representative of our own city, whom we sent there by our own votes. It was advocated by our own Senator. It was passed by the aid of northern votes. Where is the remedy? It strikes me that the statement of the case shows where the remedy is. It is in the hands of the people. It is not in standing behind and urging on poor men to put themselves in the cannon's mouth. It is political courage that is wanted. Courage shown in speech, through the pen, and through the ballot-box. But be it known that all I have said is on the idea that this is a repealable law. If we are to be told that this is a part of the organic law, sunk down deep into national compact, and never to be repealed,--then neither you nor I can answer for the consequences. But now we can say that it is nothing but an act, that may be repealed tomorrow. Take from us that great argument, and what can the defendant and myself do? What can the defendant say to discourage colored men from the use of force? You take from him his great means of influence. I never have been one of those, and I think the defendant has never been one of those, who would throw out all their strength in denunciations against Southern men born to their institution of slavery, and pass over those Northern men who volunteer to bring this state of things upon us. But as a citizen, within constitutional limits, addressing his fellow-citizens at Faneuil Hall, (where I think we have still a right to go,) discouraging his fellow-citizens from violence, writing in the newspapers and arguing in the courts of law to the same purpose, saying to the poor trembling negro, I will give you a habeas corpus! I will give you a writ of personal replevin! I will aid in your defence! There is no need of violence! That is the position of the defendant. If he held any other position, if the defendant had made up his mind that here was a case for revolution, that here was a case for civil war and bloodshed--if I know anything of the spirit of the defendant, he would have exhibited himself in a far different manner. He would have resigned his position as a counsellor of this court, with all its profits and honors; he would put himself at the head instead of urging on from behind a class of ignorant, excited men, against the execution of the laws. For he knows perfectly well--an educated man as he is, who has studied his logic and metaphysics, and who is not unfamiliar with the principles of the social system--that an intentional, forcible resistance to law is, in its nature, revolution. And I take it, no citizen has the right forcibly to violate the law, unless he is prepared for revolution. I know that these nice metaphysic rays, as Burke says, piercing into the dense medium of common life, are refracted and distorted from their course. But an educated man, with a disciplined mind, knows that he has no right to encourage others to forcible resistance, unless he is ready to take the risks of bringing upon the community all the consequences of civil war. We talk about a higher law on the subject of resistance to the law. And there is a higher law. But what is it? It is the right to passive submission to penalties, or, it is the active ultimate right of revolution. It is the right our fathers took to themselves, as an ultimate remedy for unsupportable evils. It means, war and bloodshed. It is a case altogether out of law. I do not know a man educated to the law that takes any other ground. I suppose your Honor did not misapprehend my last remark and that no one did. When I said resistance to the law, I did not mean to include resistance for the purpose of raising a constitutional issue. If an unconstitutional tax is levied, you refuse to pay it and raise the constitutional question. This right seems to be lost sight of. Persons seem to think we are to obey statutes and not the constitution. I understand that the duty to the constitution is above the duty to the statutes. And therefore I say, by resistance to the law, I mean combined, systematic, forcible resistance to the law for the purpose of overcoming all law, or a particular law in all cases; defying the government to arms, and not for the purpose of raising a constitutional issue. For this is within the power, nay, it is sometimes the duty of a citizen. I do not know a position in which a person does a greater good to his fellow citizens than when he does, as John Hampden did on the question of ship money, raise, by refusal to obey, the constitutional issue. And in doing this, he ought to have the approbation of the Courts and their ministers, and of every person true to the constitution and the laws. At the same time that it is important to maintain all these principles, which are the principles of the defendant, I also think this is a season when we must be very careful that certain opposite doctrines are not carried too far. I think it is a time, this day, when it becomes a judicial tribunal to see to it, that this extraordinary combination of Executive power and patronage; this alarm and this anxiety at head quarters, does not lead to a violation of private rights and personal liberty. I think there is a pressure brought to bear against the free expression of popular opinion, against the exercise of private judgment--a pressure felt even in the courts of law, intimidating counsel, overawing witnesses, and making the defence of liberty a peril. There is the pressure of fear of political disfranchisement, of social ostracism, which weighs upon this community like a night-mare. We feel it everywhere. We know that we make sacrifices when we act in this cause. We feel that we suffer under it. And if this course is persevered in, I believe that if a man stands at that bar charged with being a fugitive slave, he will find it difficult to obtain counsel in this city of Boston, except from a small body of men peculiarly situated. I think that two years ago no man could have stood before this bar, with perpetual servitude impending over him, but almost the entire bar would have come forward for his defence. No man would have dared to decline. But because of this pressure of political and mercantile interests, it is said that Henry Long found it difficult to obtain counsel in New York. His friends sent to Boston to obtain an eminent man here, willing to brave public feeling by acting as a counsellor in a case of slavery. I do believe that this danger is to be regarded. For there is, at times, as much servility in democracies as in monarchies. I was struck with the remark made by the Earl of Carlisle, in his late letter, that there is in the United States an absolute submission to the supposed popular opinion of the hour, greater than he ever knew in any other country in the world. This is something in which no American can take pride. The history of democratic governments shows that they may be as arbitrary as any absolute monarchy. Athens and Paris have, under democratic forms, been the standing illustrations of tyranny and arbitrary rule the world over. Those are free governments, in which there is a government of just laws, whether wrought out through a mixed government, as in England, or wrought out as here by the people themselves, and cast into representative forms. And now we see before us the anomaly, the mortifying contradiction, that it is in Great Britain, and not in the republic of the United States, with our venerated Declaration of Independence, that the great principles of Liberty and Fraternity are practically carried out. I do not mean to reflect upon any person or persons south or north of a certain geographical line. Our ancestors have eaten sour grapes, and their childrens' teeth are set on edge. We are all under the same condemnation. We are all responsible for these laws--for slavery, in some form or other. Our constitutional compact makes us responsible, and we cannot escape from our share of the evil and the wrong. But I must leave these generalities, and pass to the particular points of this case. This is the first case of its kind that has occurred. The decision in this case by the Commissioner, though not matter of precedent, yet goes to the profession, the press, and into the private records of the country. Therefore we may be excused if we pay some considerable attention to the points of law involved. In the first place, it should be borne in mind that a fugitive slave is not a criminal. A few years ago, it was thought in Massachusetts that the pursuing of slaves was criminal. I thank God, it is not yet decided that the escaping from slavery is criminal. It is a mere question of property under this act. This law has recognized certain property in slaves, claimed in a certain manner, in the free States. It is a mere question of property. The Southern man has certain property in his slave. That property we do not here recognise. But if the property escapes, and he pursues it, it is to be recognised in this court. Consequently, when a Southern man comes here and seizes a person as his property, he takes him at his own risk, a risk which every man takes in seizing any thing as his property. If he seizes the wrong property, any person who owns it, may resist him, or resist his officer armed with a warrant. This has been ruled in various cases. Your Honor recollects in the 8th Pickering, the case of the Commonwealth vs. Kennard. There the writ was placed in the hands of the officer, to go and attach some property of the defendant. He attached certain property which he thought belonged to the defendant. He showed his warrant, but the true owners put him, neck and heels, out of the house. They were indicted, but the Court sustained them in their act. In a civil action, if the wrong person, the wrong horse, or the wrong slave, is taken, then the owner of the property may defend it, or the man seized may defend himself if he chooses. There is a different statute on the subject of interfering with the process of the courts, interfering with judicial processes, under which this respondent is not held to answer. Whenever this respondent is held to answer for resisting judicial processes, then these other questions may be raised. He is now only charged with rescuing property from the owner, or the officer holding for the owner. The Constitution says that any person _charged_ with crime, and escaping, shall delivered up. But in the case of the Fugitive Slave, it carefully alters the phraseology. It does not say that any person _charged_ with being a Fugitive Slave shall be surrendered, but any person who _is_ a Fugitive Slave. In the one case, the _charge_ is the only material fact, and is proved by record. In the other case, which is a question of property, the fact of property is the foundation of the proceeding. So, in this act of 1850, the 6th Section does not provide that any person who _claims_ a Fugitive Slave, shall have the right to arrest him, but any person who _is the owner_ of a Fugitive Slave, may arrest him. So in the 7th Section, the penalty is not inflicted for rescuing a person who is _claimed_ as a Fugitive Slave, but for rescuing a person who _is_ a Fugitive Slave. These provisions are in analogy with the law of property, and of the arrest of persons and property, in all other cases. As bad as this statute is, it is not quite so bad as its friends in this case would make it. The next consideration is, that it is not necessary that the claim should be made by virtue of legal process. The owner or his agent may arrest the fugitive _with or without process._ The offence is equally committed, and the penalty is the same, whether the rescue is made from the owner without process, or from the officer having process. This fact, with the fact that there is a general statute relating to the offence of obstructing judicial processes, shows that this statute assumes the facts of property and escape to be true, and applies only to cases in which they shall prove to be true. If this is not so, what is the result? If a man claims another, without process, by putting his hand on his shoulder, though the man may be as free as you or I, if he resists, or his friends aid him in resisting, the offence is committed. A man claimed as a Fugitive Slave, has been rescued or aided in his escape. You cannot refuse to deliver up a colored boy or girl born in your house, of free parents, to any man who knocks at your door and claims the child, with or without a warrant, without incurring the penalties of this act. This monstrous construction can never be admitted. I beseech the Commissioner to reconsider his intimated opinion on this point, and to hold the Government to preliminary proof, in the outset, that the person rescued was a slave by the law of Virginia, was the slave of the man who claimed him, and was a fugitive from that state of Slavery. What evidence has there been of any of these facts? There has been no evidence offered that the prisoner was a slave by the law of Virginia!--There has been no evidence offered that he was the slave of Mr. Debree! There has been no evidence offered that he was a fugitive from a state of slavery! Mr. Riley's return upon the warrant, stating that he had arrested "the within named Shadrach," was admitted as evidence. I solemnly protested against the reception of the return as evidence in a criminal proceeding between other parties; but it was received, and for a while held to be conclusive. But, in answer to my question, Mr. Riley replied that he did not know the man he arrested to be the man named in the warrant. And how could he know it? This nullified the return, and the government had no evidence. The District Attorney saw this, and rising in his seat, in a threatening tone, said to Mr. Riley, "I warn you, sir, not to give that testimony!" The testimony was true, and it was admitted by the court. Why was Mr. Riley warned? He was warned for private reasons. It was an official warning, by the agent of the Executive to one of its servants. _Mr. Lunt_--I deny that it was a private warning. It was public, and for proper reasons. _Mr. Dana_--It was for private, or secret reasons, not given, not apparent,--some political or governmental terror, known only to the parties. There is no escape from this. The bar saw it. The audience saw it. It is graven with a pen of iron, and laid up in the rock forever! All evidence of identity having failed, the government is driven to its last shift. Col. Thomas is called in, and he testifies that the agent of Mr. Debree said to him, in the Court-room, when the prisoner was brought in, "That is my boy!" This is hearsay evidence upon hearsay evidence. It is monstrous! Yet on this slender thread of illegal testimony, hung all the evidence of the facts of identity, slavery and escape. If it is enough to prove that the man rescued was the man in custody, and upon whom the Court was sitting in fact, no one denies it. But if it be necessary to show that the man in custody was the man named in the warrant, or that he was a slave, and a fugitive slave, there has been no competent evidence of any of those facts, and no evidence at all but of one of them. This man was not rescued from the Court. The Court had adjourned. The Marshal had chosen to make the Court-room a slave jail. The offence would have been the same in the eye of the law, if he had been rescued from the hands of the agent having no warrant, in the streets, or in a railroad car. I have nothing more to submit to the Court on the subject of the law applicable to this case. I will now call your Honor's attention to the facts in proof. To avoid repetition and confusion, I will call your Honor's attention to single points. 1. Mr. Davis was counsel in the case, and acted as such. Mr. Morton, who knew Shadrach, and to whom Shadrach looked for advice, recommended Mr. Davis to him as counsel. Mr. Riley testifies that Shadrach twice pointed out Mr. Davis to him as one of his counsel, when officially inquired of by Mr. Riley. Mr. King and Mr. List, counsellors of this court, testify that Mr. Davis sat with, consulted with and conversed with the counsel who addressed the court, made a prolonged and careful examination of the papers, and was the first who raised the doubt of their sufficiency. Mr. Sawin, an officer, says he acted as counsel. It is proved that he went into the court room for the purpose of acting as counsel, and did not leave the room or the bar at all (the government will admit, not for more than a minute or two) until the last moment. What other evidence can there be of counsel's authority? It is seldom if ever in writing, but is proved by acts and recognitions. After such evidence of the acts and recognitions of a hasty and troubled forenoon, including the testimony of two of his own officers, I was amazed at the pertinacity of the prosecuting officer in calling Mr. Curtis to prove that Mr. Davis was not counsel. But Mr. Curtis admitted that he knew nothing of the relations between Shadrach and Mr. Davis, that there are often counsel who do not address the court, and that Mr. Davis might have been of such counsel, for aught he knew. And most of the work of counsel was done after Mr. Curtis left. I think your Honor will find no difficulty in believing that Mr. Davis acted as counsel for Shadrach, and was in attendance for that purpose. 2. To connect Mr. Davis with the rescue, the Government has found it necessary to contend that he left the court room and returned, shortly before the rescue took place. The only witness to this is Prescott; and how does he stand? Prescott was in the entry before the rescue took place, he heard it debated, he saw it through, he gave no notice to any one, but evidently, from the testimony of Hanscom, he sympathized with the rescuers, and expressed his sympathy in a very unguarded manner for a man who was present, in the midst. All that day and the next, with the vanity of a youth who has been the fortunate spectator of the great event of the day, a fire, a hanging, or a murder, he vaunts his connection and sympathy with the rescue. On the third day come the arrests. He finds the Government has learned that he was present. Six months in jail and a thousand dollars fine, is no trifle to a mechanic's apprentice. He becomes alarmed, and offers himself as State's evidence, and becomes a swift, a terrified, and a blinded witness for the Government. He says he was standing in the entry by the recess that leads to the east door and the water-closet. While there, he saw a gentleman come along the entry and go past him into the recess, and he thinks through the east door into the court room. If this was Mr. Davis, he must have gone through that door, for he was in the room and left it again a minute after. This gentleman he is sure was Mr. Davis, although he did not then know him by name and had only seen him once. Nor was there anything then to call his attention to a casual passer by. Now, may it please your Honor, how long and when was Prescott at that post? According to his own testimony, about two minutes before the rescue began, and as soon as he saw the attempt was serious, he left that place for the stairs. Mr. Davis, then, must have entered the east door one or two minutes before he went out of the west door. Now, Mr. Warren, the Deputy Marshal, testifies that he passed through the entry into this closet, just about two minutes before the rescue, and remembers seeing a young white man standing at the corner. To avoid the effect of this evidence, Prescott is recalled and says he remembers also to have seen a man come out at the east door and go into the closet, at this moment. But here the witness made a mistake. He thought that Mr. Warren went through the east door, but Mr. Warren says that he came along the entry, and had not been in or out of that door. What then is the predicament in which Prescott has involved himself? Three different men must have gone into that recess in the short space of two minutes; two of them at least, must have been in the closet at the same minute; and the east door must have been opened three times upon a knock from without. Against this evident mistake or wilful perversion, what is the evidence? Mr. Riley and Mr. Warren both say that the east door was fastened on the inside, with strict orders not to have it opened at all; and so strict were they, that they themselves went and came by the west door. No one can be found who opened that door or saw it opened, or saw Mr. Davis go in or out at it, and it is next the Marshal's desk, and in plain sight of every one. No one could come in at it, without knocking and having it opened from within. During the half hour before the rescue, there was no one in the room but the prisoner, the officers and the counsel. The doors were both in plain sight, the east door locked, and at the west door two officers, between whom every person must pass. Both these officers testify that Mr. Davis did not go out or in to their knowledge. Byrnes, Neale and Sawin, the other officers, did not see him go, and think he did not leave the room. Mr. Riley is confident he did not leave the room. Mr. Wright found Mr. Davis in the room, half an hour before the rescue, and is sure he did not leave. Not a man in the court room saw him go or come, or believes that he did so. If Prescott's conjecture is true, Mr. Davis must have gone out past the officers at the west door, returned to the east door, knocked and been admitted by another officer,--beside the inconsistencies about the men in the closet. We might well ask, what if this were Mr. Davis? What does it prove? He spoke to no one, except a "good day" to one man, and took no notice of the crowd at the door. But I will not argue this supposition, for it is not true. It was not Mr. Davis. He did not leave the room until he went out for the last time. Something has been attempted to be made out of Mr. Davis' conversation with the officers in the room. A man engaged in a plot for a rescue, would not be likely to expose himself to suspicion by violent remarks to officers. But take the evidence as it stands. At the request of Mr. List, he asked Sawin, whom he knew, if the man next Shadrach was a Southern man. This was proper. The counsel did not wish a man to sit next the prisoner, who might converse with him for the purpose of getting admissions from him. They feared he might be an agent of the claimant. He said privately to Mr. Sawin, whom he had known intimately for years, that this was a dirty business he was engaged in. He did not know Mr. Sawin to be an officer of the Court. He knew him as a city constable; and supposed he had let himself out by the day as a catcher of fugitive slaves. I know something of the feelings of Southern gentlemen as to this class of men. They are necessary evils. They use them as we use spies, informers and deserters in war; they use them, but they despise them. I remember being in one of the chief cities of Virginia, and passing a large, handsome house, when my friend said to me, "There lives perhaps the richest man in our town, but he visits nowhere, nobody notices him. He is looked upon with aversion. He is a dealer in slaves! He keeps a slave-market, and pursues fugitives!" They look upon this occupation with as much contempt, aye, with more contempt than we seem to now; for there is a higher spirit in their aristocracy, than in the ruling classes of our Northern cities at this moment. This was the feeling of Mr. Davis, when he spoke to Sawin. This is the feeling of every man of honor. He wished a man whom he knew, to be engaged in a more respectable business. I have said the same. I saw a man I knew in Court the other day, letting himself by the dollar a day, in slave catching. I begged him, if he could find any honest mode of getting a living, to abandon it. _The Commissioner._ Did you know him to be engaged in his legal duties? _Mr. Lunt._ A very improper remark! _Mr. Dana._ I venture to suggest not. The remark was with reference to the future, and not to the present. _The Commissioner._ I see no distinction between attempting to deter men from executing the law and assisting in violating it. _Mr. Dana._ I am sorry I cannot see the impropriety of it. Perhaps I have not made myself clearly understood. Mr. Davis expressed his opinion that the man had better be in better business. _The Commissioner._ It was equivalent to saying to the officer that the execution of the law was a mean business. _Mr. Dana._ That I propose to argue. _The Commissioner._ On that point, the defendant himself intimated in his cross-examination, that the expression was not used as an observation in general. On being asked whether the remark was not said with regard to his business, he replied, yes. _Mr. Dana._ I did not so understand it. He intended to say this--Mr. Sawin, you and I are old acquaintances. You are not obliged to do this business. It is mean business. Why do you volunteer in it? This is what I myself have said, and what every high-minded man must feel. _Mr. Lunt_ here intimated that Mr. Dana might find himself changing places at the bar, and be a defendant instead of counsel, if he advocated and expressed such sentiments. _Mr. Dana_ simply bowed to the Attorney, and proceeded. No citizen is bound to an active execution of this law, unless called upon as one of the _posse comitatus_. Did your Honor feel bound to join in the pursuit last Saturday, when the mob passed you at the corner of Court street? Do you feel bound, of a pleasant evening, to walk about in the neighborhood and see what fugitives you can find and dispose of? Would any compensation tempt you to do it? On the subject of the conversation with Byrnes, that was considered, of course, very truculent, on the government's evidence. But when explained by Mr. Minns, what is it? The defendant knows that the cause in which he is engaged, by a strange revulsion of public feeling, is unpopular. It is unprofitable, and whatever is unprofitable is unpopular. It is not genteel, and persons doubtful of their gentility ridicule it. Now Mr. Davis being engaged in this unpopular cause, Byrnes makes a remark which Mr. Minns thought was intended to irritate Mr. Davis. He did not hear the first part, but it ended with "killing the negroes." Mr. Davis felt that it was intended as a taunt to him. He answered him, "Then, on that principle, you ought to have your throats cut." I have no doubt it was a logical conclusion from Mr. Byrnes' premises, and nothing more. Up to this point, what is the evidence against Mr. Davis? Am I not right in saying, nothing whatever--nothing more than any man would be subject to, who acted as counsel? The only remaining point is his passing out of the door, and his conduct in the entry. On this point there is but one witness against him, and that is Mr. Byrnes, who, unfortunately, holds the office of Deputy Marshal. I shall not go into an examination of the evidence as to the reputation of this man. Twelve good men, known to us all, persons likely to know Byrnes's character, have testified it is and has for years been bad, decidedly bad; and it was not denied by his witness, that the verdict at East Cambridge was rendered on the assumption of his not being worthy of belief. His own witnesses were chiefly casual acquaintances, or the boon companions of his bowling-alley and billiard-room, the retailers of liquors, men who, like him, live by violating the laws by night, which he lives by enforcing in the day-time. It is clearly proved that there was no suspicion of a rescue, either in the court room or in the entry, until the instant it took place. Prescott did not suspect it. Mr. Homer, the highly respectable assistant clerk of the Municipal Court, who saw the whole occurrence from the stairway, did not think it would be any thing serious. Mr. Warren, the Deputy Marshal, passed through the group at the door twice, but two or three minutes before the rescue, and suspected nothing. Five Courts were in session, and persons were passing up the stairs and through the passage-way to the last moment, and suspected nothing. The officers inside suspected nothing. Their defence against negligence is the defence of Mr. Davis. Mr. Davis knew that Mr. Morton expected to purchase the freedom of Shadrach. He had confidence that the documentary evidence was fatally defective. He was engaged to attend the consultations on the defence, and on the Habeas Corpus, that afternoon. He saw that Mr. Curtis was not disposed to hurry matters, or to deny the prisoner full opportunities for defence. And I will do Mr. Curtis the justice to say that I have no doubt it was his object to exhibit this law to us in its most favorable light; to justify its makers as far as possible. Mr. Davis neither knew, nor suspected, nor thought of a rescue at that door. Every witness says he went out of the door in the usual manner, except Hutchins, and when Hutchins thought he should have gone out in full front, instead of side-wise, your Honor well asked how otherwise could he have gone out, with a crowd against the door, and in the passage? I see that your Honor thinks nothing of that; although in the more jealous eye of the District Attorney, it is matter of suspicion. To minds so disposed, there is nothing but is proof of guilt. If Mr. Davis had marched out in full front, it would have been in order to open the door wider, for the conspirators to rush in. Just so in the case of poor Shadrach's coat. Yesterday the District Attorney was certain that Mr. Davis, or some one apprised him of the intended rescue, because he pulled his coat off. Now, when it is proved, by the government's own witnesses, that Shadrach afterwards put his coat on again, I suppose his putting it on will be just as good proof of the same thing. Mr. Byrnes, thinks he recognized Mr. Davis' voice in the entry, calling out, "Take him out, boys!" But the same cry was uttered several times, and Mr. Homer and Mr. Hutchins, who saw Mr. Davis at the moment, and were outside, say it did not come from him, but from the negroes, and Prescott attributes it to the negroes. Four men were nearer to Mr. Davis than Byrnes was, and all of them exculpate Mr. Davis. And Byrnes is confessedly hard of hearing, and not particularly familiar with Mr. Davis' voice. Moreover his character for truth and veracity is impeached. Mr. Davis was on or near the platform when Mr. Homer saw him. Mr. Adams met him on the lower floor, by the Marshal's office, while the noise was going on up stairs; talked with him two or three minutes, and walked round the building, and saw the crowd go up the street. This proves that Mr. Davis did not linger near the rescuers; nor did he absolutely run away, or fly, as a man would who desired to avoid discovery. On the contrary, he did just as any other person would have done. He staid long enough to let himself be seen by several persons, but not long enough to be of any aid to the rescuers. Nothing can be clearer of cause for imputation, than the conduct of Mr. Davis in the entry and on the stairway. Such, please your Honor, is all the evidence against the defendant. It is reduced to an exclamation on the stair-case, sworn to, not very confidently, by a deaf man, who was too far off to hear well at any rate of hearing, denied by three officers, with good hearing, two of whom were outside, while a dozen voices were calling out the same thing at the same moment; the moment, too, one of alarm and excitement on the part of the officers. If such evidence is sufficient, who can be safe? Who would dare to act as counsel in any case of public excitement, with a suspicious and angry government watching every motion, served by officers of broken down reputations? Please your Honor, I have done with the testimony. On what principles of proof is the judgment to be made up? The Constitution requires that no person shall be arrested without a warrant supported by oath. The Act of 1789 requires these proceedings to be conformed to proceedings in the State Courts. In Massachusetts it has always been required that the complainant shall be first examined on his oath. In this case there has been no examination under oath. Mr. George Lunt, has sworn, "so help me God," that Charles Gideon Davis, a Counsellor of this Court, has aided in rescuing the prisoner. Yet, so help him God! he knew nothing about the facts. He has made oath to the form of the Statute, and no more. _Mr. Lunt_ here intervened and said it was the custom for the District Attorney to swear to complaints on hearsay evidence. _Mr. Dana_--But this is not stated as hearsay. It is sworn to as a fact. Charles G. Davis "_did_ rescue," and the above named George Lunt made oath to the _truth of the facts_. As a question of conscience, I leave it with that officer to settle with himself. As a matter of law, as a matter of vital importance to every citizen, as a great question of constitutional law, I earnestly protest against the issuing of warrants on the mere formal oaths of official persons, representing a party in the proceedings, and utterly ignorant of the facts they swear to. If it be a custom, it is more honored in the breach than in the observance. But I deny that it is the custom. Complaints are sworn to by persons knowing the facts always in the State Courts, and in my experience in the Federal Courts. If the prosecuting officer is obliged to swear to them, for want of other witnesses, he only swears to his information and belief. In closing my prolonged remarks, let me recapitulate our case. Mr. Davis is not the man to urge others to acts he dares not commit himself. He believes this dreadful statute unconstitutional, a violation of our moral sense, a great breach upon the safeguards of freedom every where. Yet he will oppose it legally, by speech, by the pen, and in Court. He will not yield to it any voluntary obedience, but he will not use force, or counsel citizens to use force to set aside the laws. He rejoices that Shadrach is free. Every right minded man rejoices that he is free. Sober second thought teaches him and all of us that violent counsels are weak counsels. Better had it been for the cause of freedom, if, when the Marshal called out to shoot the prisoner, some armed minister of the law had shot dead the unarmed, unoffending man! Better had it been for him, and the cause of those like him, if John H. Riley, instead of flying to the window, had plunged that sword to the hilt in the heart of the captive! Better if this temple of justice, which has already been turned into a slave jail, and a slave market, had also been made the shambles and the grave! While we uphold the public peace and the dignity of all laws, let us regard with tenderness and consideration that poor class of oppressed men, our negro population, on whom the statute falls with the terrors and blackness of night. When one of their number, by his industry and abilities has raised himself to the dignity of a place in this bar, it was with mortification I heard him insulted, yesterday, on the stand, by an officer of court, who pointed him out, in giving his evidence, as "the little darkey lawyer." While I rejoiced at the rebuke administered to that officer from the bench, it was with deep regret that I saw the representative of the government lead off the laugh of the audience against him. _Mr. Lunt_--This is false. _Mr. Dana_--Do you deny you did so? It was seen and noticed by us all. I spoke to you at the time. _Mr. Lunt_--I only smiled. I cannot always control my muscles. _Mr. Dana_--I am sorry you could not control them on this occasion. It led off and encouraged others, who take their cue from persons in high stations. The doings of these last few days are now part of history. If there has been a hasty and a needless arrest of a respectable gentleman; if counsel have been intimidated, or witnesses threatened; if liberty of speech and action have been periled; if the dignity and duty of office have been yielded to the unreasonable demands of political agents, and the commands of a misinformed Executive,--the Inquest of public opinion is to sit upon the whole transaction, and it will be held up to the world. _Proximus ardet Ucalegon!_ There are revolutions in the wheel of fortune. There are tides in the affairs of men. Let us hope that your Honor will be able to set this occurrence in its true light:--A sudden, unexpected, unpremeditated action of a group of excited men, and successful because unexpected. But a sworn counsellor of this Court, even in the excitement of the rescue of a slave to his freedom, by those of his own flesh and bone, did not forget the duty he owed personally to the Court and the law. * * * * * ARGUMENT OF GEORGE LUNT, ESQ., DISTRICT ATTORNEY. Mr. Lunt said that the counsel for the defence had commenced by saying, that he did not know how he was to be answered. He should not reply to the first two hours of the gentleman's speech. The gentleman has alluded to constitutional doctrines, and opinions, which a small class of the community entertain. I shall not spend my time for popular effect. Some of his remarks come with an ill grace from him, and those with whom he associates. The gentleman should take care how he is associated. I have nothing to say against the colored people--ignorant--degraded, no doubt, but peaceable, as a general thing; they would be glad to get away from people who meddle with them, and would prefer to be let alone. But I say it is dangerous and mischievous to recommend such doctrines as the gentleman avows. _Proximus ardet Ucalegon!_ The relation of counsel in which he appears here may be changed. The sentiments he has uttered here place _him_ in peril. He will find it _so_, _to his cost_, unless he changes the tone of his remarks, on this and future occasions. I will proceed at once to the evidence. The question here is, has a law of the United States been violated? I throw to the winds every question except whether this defendant is guilty; high or low, it matters not; the higher in station, the more amenable. I do not suppose for a moment that the Commissioner has any prejudice. We cannot, and we never will regard, the office, which the counsel seems to consider sacred. The sacredness of an office depends upon the sacredness of character. I am accused of having arrested an individual with unseemly haste, a person of character, of a family whose name is known in history; a member of the bar, bound to preserve the law, counsel at the time, and entitled to perfect freedom. I can state with confidence that the defendant was not arrested until after a full personal investigation of facts, and then on a keen sense of duty. Now what were the grounds in general, on which the warrant was issued? Mr. Davis meets Mr. Riley in the morning, upon which, after an inquiry whether he has seen Mr. Curtis, he asked if he has a slave case? a question he might well ask, considering the company with which he is associated. He asks him again in this Court room. _Mr. Dana_--There is no evidence of that,--the evidence is, that after the adjournment he asked an explanation from Mr. Riley of the interview in the morning. _The Commissioner_ referring to his notes--says, he believes Mr. Dana is right. _Mr. Lunt._ Now with whom is he associated? I hold in my hand an account of a meeting held in Faneuil Hall, on the 14th of October last. _Mr Dana._--For what purpose this narrative to be read here? It is an account from a hostile paper, of a political meeting, not made under oath; and it does not appear who wrote it, nor whether the person who wrote it was present at the meeting. _The Commissioner._--I shall not object to the gentleman's reading whatever he thinks proper. You have introduced in your argument a great many irrelevant matters, Mr. Dana, and Mr. Lunt may do the same. _Mr. Lunt._--This is the account,--Reads from the Boston Post of October 15, 1850. THE FUGITIVE SLAVE LAW MEETING. "The call for a meeting of the opponents of the fugitive slave law, at Faneuil Hall, last night, collected a large audience, comprising a considerable number of colored people. There were about three hundred colored females in the galleries. The meeting was called to order by Francis Jackson, and organized as follows:--Charles Francis Adams, President; Samuel E. Sewall, Gershom B. Weston, Francis Jackson, and Timothy Gilbert, Vice Presidents; J. W. Stone, and J. W. Thornton, Secretaries. "Upon taking the chair, Mr. Adams delivered a carefully prepared address, in which he maintained that the law was repugnant to the spirit of our institutions and the constitution, and fraught with as much danger to free colored people as to fugitives. "He was followed by Frederick Douglass, who described the consternation the law had created among the colored people, free and fugitive, and said that he knew of hundreds of both classes who were fleeing to Canada. The free colored people were in fear of seizure by conspiring complainants, aided by perjured affidavits. "Richard H. Dana, Jr., after expressing regret that the meeting was not made up of somewhat different material, of the leading men in all branches of business, and of men of property and reputed respectability, read a long letter from Josiah Quincy, senior, declaring against the law, but at the same time expressing his belief that there was no real ground for alarm, for, in his opinion, the enforcement of the law in Massachusetts would prove to be impracticable. "At the request of the President, Mr. Dana also read a series of resolutions, author unknown, declaring that the moral sense of the individuals composing the meeting, revolted against the law; denouncing it as contradictory to the declaration of independence, and inconsistent with the purposes of the constitution, and in direct violation of its habeas corpus provision, and the right of the people to be secure from unreasonable seizure, &c.; that the meeting could not believe that any citizen of Boston and its vicinity could be so destitute of love of his country and of his race, or devoid of a sense of justice, as to take part in returning a fugitive; and that all present pledge themselves to endeavor to aid and cooperate with all colored people endangered by the law. "Speeches were made by Wendell Phillips, James W. Briggs, of Ohio, Charles Remond, and the Rev. Mr. Colver. The resolutions were adopted, as a matter of course. The last one provided "for a committee of vigilance to secure the fugitives and colored inhabitants of Boston and vicinity from any invasion of their rights by persons acting under the law," and the committee was styled and made up as follows:--" The last resolution provides for a committee, of which Charles G. Davis was one. Now I admit that Mr. Davis was in Syracuse, at the time. But he admits that he volunteered upon his return. Why didn't he publicly disclaim any assent to these proceedings? And if he did not, is he not to be presumed to have assented? I want the public to know whether Mr. Davis and those associated with him, abide by the doctrines avowed in Faneuil Hall. The Statute provides that whoever has been engaged in aiding, abetting, or assisting, _directly or indirectly_, is criminal. I shall contend that the defendant is directly implicated. He is more or less implicated, in the opinions which have been promulgated, and from his conversations with Mr. Riley. What next? He comes and asks whether a certain man is a Southern man. Why? Is not a Southern man to go into a United States Court? Has it come to this? Mr. Davis then says to Sawin, "this is a d--d nasty piece of business," in the presence of the prisoner. He knew that such an expression was calculated to have two effects; first, to discourage the officer,--and secondly, to encourage and excite the prisoner. This was an indirect aiding,--connecting it with the subsequent escape. He uses language of a very unusual and violent character afterwards. For some unaccountable reason Mr. Davis remains here; for it is unaccounted for. Was he counsel? I maintain he was not counsel. Mr. Riley did not know he was counsel when he asked Shadrach in Wright's presence if Davis was counsel. Riley didn't know it then. Shadrach appeared to be in doubt about it. (It was suggested that there was no such evidence.) What was he waiting for? What single thing did he do as counsel? Mr. Lunt here reviewed the evidence of the transactions in the court room more minutely. Davis pushed the door and stuck his back against the post. One expression, "Take him out, boys," is the natural expression of a stranger. The other words testified to by others were, "take him out." He goes down, and does not interfere, according to his own statement. He shows no disposition to prevent a rescue. The Commissioner inquires whether not interfering may not be indirectly aiding and abetting. _Mr. Lunt._ I am not ready to take that ground at present. _The Commissioner._ He is undoubtedly liable, as a magistrate, and subject to a fine of $300. Mr. Lunt reviews the evidence of what took place in the entry, argues that Mr. Homer could not have seen the whole disturbance, says that as a professional man, he can't say it is proved beyond a reasonable doubt, that Mr. Davis uttered the words "take him out, boys," and does not think they would satisfy a jury, taken by themselves. But there was reasonable cause for binding him over. Mr. Prescott shakes my confidence in my preconceived opinions upon the subject, as to whether Davis went out or not. I did not think before that Davis went out. Mr. Prescott cannot be mistaken. Mr. Prescott's testimony is not met by the negative testimony of Mr. Riley, for it was impossible that Mr. Riley could have constantly watched the left hand or easterly door, while talking with others or disputing with Mr. Wright. If he did go out then, he had an opportunity to concert a signal with the colored men without. Mr. Lunt argued to show the intenseness of Mr. Davis's interest and zeal in opposition to the law, that it was avowed by him under oath upon the stand; that showed his predisposition and excited state of mind upon the subject, and the greater liability of his being betrayed into an act of overt resistance to the law, if an opportunity occurred. This excited state of mind continued in the court room, as was proved by his addressing the officers in the abusive and sanguinary terms used by him. Up to the moment of leaving the court room, and when expostulated with by the officer, for saying he and others ought to have their throats cut, he admitted that he had said so, and that he said so again. Clark and Hutchins heard the cry--"Take him out boys;" and Byrnes, whose eye was fixed on Mr. Davis, was certain that they came from him. The words were uttered. He was in that peculiar state of mind, which rendered such words the natural expression of his feelings, and they were in perfect accordance with the general purpose of resistance to the law publicly promulgated by his associates and co-laborers, who had been formed into an organized body in this city. He did not content himself with going out when Hutchins opened the door for him. He braced his back against the door-post, and pushed against the door to open it wider. Then came the cry--"Take him out, boys!" And Byrnes had sworn it came from Mr. Davis. Connected with Mr. Davis's leaving the room was another significant fact. Almost at the moment that he, quitting that part of the room where the fugitive was, started to go out, the fugitive rose, put on his coat, and appearing to be excited, walked forward, just as the first cry was raised. Mr. Davis lingers on the stair-case, and goes to his office, not knowing or caring, he would have us suppose, what had been the issue. Upon this evidence, it seems to me a clear case for holding the party over for further examination and trial. * * * * * _Wednesday, Feb. 26._ Upon the opening of the Court the Commissioner delivered his decision. He commenced by stating the offence under the statute with which the defendant is charged, and stated that he should confine himself principally to the question whether the defendant was aiding or abetting the person who had been arrested, and that the legal decisions upon the construction of the statute were merely for the purposes of this examination. The Commissioner then reviewed the evidence as to the expressions of the defendant in the court room, and stated that it had been proved that the defendant said the officers of the Court ought to have their throats cut. No notice was taken in the opinion of the evidence of Geo. W. Minns, Esq. The following extracts are made from the opinion of the Commissioner. "The defendant has also volunteered the statement in this court, when called as a witness in the preceding examination, that he was glad the prisoner was free, and when further questioned, he left it unexplained whether that opinion also embraced the unlawful means that had been used." "These facts have a legal bearing upon the _animus_, the wilful intent with which any act may have been done, by the defendant to aid in the rescue; and I should fail in the duty of a magistrate at this time, and under all the circumstances surrounding this examination, to permit to pass unrebuked any manifestation of a resistance to or contempt of legal process, especially when coming from intelligent citizens and men in official positions, whose countenance or encouragement may have involved, and may again involve, the excitable and less informed in an open violation of law. At the same time there is a plain distinction as to the penal consequences, between a moral and a legal aiding or abetting; and holding throughout these examinations, as I trust I may be enabled to do, an impartial as well as a firm hand, care shall be taken not to confound an indiscretion or a moral perversion, or any mere expression of opinion, however gross, with a wilful act constituting legal guilt. I fully recognise the doctrine suggested in the defence, of the largest liberty within law, and also the right of the people to make or amend constitutions and laws, by all constitutional means or reserved powers." * * * * * "But so far as the defendant is here proved to have done any act, there is no evidence which connects him criminally with a preconcerted plan of rescue; and I take pleasure in adding that the conduct of the defence by the learned counsel, and his testimony and disavowals, have greatly aided me in coming to that conclusion." * * * "Of this preliminary point of the evidence I do not find an aiding or abetting within the provisions of the statute. But, in connection with what immediately followed in the passing of the defendant out at the door, the exclamation supposed by one witness to have come from him, his position and his hand upon the door, immediately followed by the rush of the rioters who surrounded it, and the absence of all evidence of attempt on the part of the defendant to prevent the rescue, it presented, on the part of the evidence for the prosecution, a strong case of probable cause, that made it the duty of the district attorney to bring the party to an examination. But in the view I take of a preliminary inquiry in this form, and especially where not only the evidence that would come before a grand jury, but the defence is gone into, testimony stronger than probable cause should appear, in order to hold the party to a trial." * * * "Then is that proof found in the acts of the defendant as he passed out of the door, in themselves or in their connection with his preceding declarations and conduct?" The Commissioner then reviewed the evidence of Mr. Byrnes, and come to the conclusion that taking it as it stands it does not satisfactorily prove that the defendant uttered the words ascribed to him. * * * "The only other evidence refers to the manner the defendant went out of the door. Hutchins, who passed him out, says that the defendant turned his back to the wall, the outer corner of the casement, instead of going directly forward, and put his head on the outer door, and then it started and was forced open. This act, as it was exhibited to the Commissioner, by the witness, is not inconsistent with the explanation that it was the result of the rush and pressure without, and the force there applied to the door; and if the attack was unexpected by the defendant, his neglect to interpose resistance to the forcing of the door, or to aid the officers, which it was his duty to have done, and which, it has been urged by the district attorney for the prosecution, with much force in the argument, may have been caused from sudden surprise or agitation. And even if, as the previous and subsequent conduct of the defendant might lead to infer, was a wilful omission of duty, especially in a magistrate, yet, if unaccompanied by any act or expression, aiding in, or inciting to the rescue, and in the absence of a call from a proper officer for assistance, it is not the distinct offence charged in the complaint, or defined in the statute; and the party, if answerable, is so in another form and tribunal. It is further to be considered, as suggested by the counsel for the defence, that the decision in this hearing is not final, or in any legal form conclusive, and as the defendant has a permanent locality, leaves the inquiry open elsewhere, should this evidence or further proof require it. Upon the whole evidence, therefore, and applying the rule which should govern preliminary examinations, of not binding over a party accused, without testimony beyond that which might constitute legal probable cause for his arrest and examination, I shall order that the defendant be discharged." The commissioner now addressed the defendant personally, and said--"Charles G. Davis, the court order you to be discharged, and go without day." Act of Congress of 1850. AN ACT TO AMEND, AND SUPPLEMENTARY TO THE ACT, ENTITLED "AN ACT RESPECTING FUGITIVES FROM JUSTICE, AND PERSONS ESCAPING FROM THE SERVICE OF THEIR MASTERS," APPROVED FEBRUARY 12, 1793. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That the persons who have been, or may hereafter be, appointed commissioners, in virtue of any act of Congress, by the circuit courts of the United States and who, in consequence of such appointment, are authorized to exercise the powers that any justice of the peace or other magistrate of any of the United States may exercise in respect to offenders for any crime or offence against the United States by arresting, imprisoning, or bailing the same under and by virtue of the thirty-third section of the act of the twenty-fourth of September, seventeen hundred and eighty-nine, entitled, "An act to establish the judicial courts of the United States," shall be, and are hereby authorized and required to exercise and discharge all the powers and duties conferred by this act. SEC. 2. _And be it further enacted_, That the superior court of each organized territory of the United States shall have the same power to appoint commissioners to take acknowledgments of bail and affidavit, and to take depositions of witnesses in civil causes, which is now possessed by the circuit courts of the United States; and all commissioners who shall hereafter be appointed for such purposes by the superior court of any organized territory of the United States shall possess all the powers and exercise all the duties conferred by law upon the commissioners appointed by the circuit courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act. SEC. 3. _And be it further enacted_, That the circuit courts of the United States, and the superior courts of each organized territory of the United States, shall from time to time enlarge the number of commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act. SEC. 4. _And be it further enacted_, That the commissioners above named shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States, in their respective circuits and districts within the several States, and the judges of the superior courts of the Territories, severally and collectively, in term time and vacation; and shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled. SEC. 5. _And be it further enacted_, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process, when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars to the use of such claimant, on the motion of such claimant, by the circuit or district court for the district of such marshal; and after arrest of such fugitive by such marshal or his deputy, or whilst at any time in his custody, under the provisions of this act, should such fugitive escape, whether with or without the assent of such marshal or his deputy, such marshal shall be liable, on his official bond, to be prosecuted for the benefit of such claimant, for the full value of the service or labor of said fugitive in the State, Territory, or district whence he escaped; and the better to enable the said commissioners, when thus appointed, to execute their duties faithfully and efficiently, in conformity with the requirements of the constitution of the United States and of this act, they are hereby authorized and empowered, within their counties respectively, to appoint in writing under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; with an authority to such commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon and call to their aid the bystanders, or _posse comitatus_ of the proper county, when necessary to insure a faithful observance of the clause of the constitution referred to, in conformity with the provisions of this act; and all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required, as aforesaid, for that purpose; and said warrants shall run and be executed by said officers anywhere in the State within which they are issued. SEC. 6. _And be it further enacted_, That when _a person held to service or labor in any State or_ Territory of the United States has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized, by power of attorney, in writing, acknowledged and certified under the seal of some legal office or court of the State or Territory in which the same may be executed, _may pursue and reclaim such fugitive person_, either by procuring a warrant from some one of the courts, judges, or commissioners aforesaid, of the proper circuit, district or county, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive where the same can be done without process, and by taking and causing such person to be taken forthwith before such court, judge or commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner; and upon satisfactory proof being made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and take depositions under the laws of the State or Territory from which _such person owing service or labor_ may have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency of the proof, and with proof also by affidavit, of the identity of the person whose service or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her, in the State or Territory from which such fugitive may have escaped as aforesaid, and that said person escaped, to make out and deliver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory in which such service or labor was due to the State or Territory in which he or she was arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable force and restraint as may be necessary under the circumstances of the case, to take and remove such fugitive person back to the State or Territory from whence he or she may have escaped as aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first section mentioned shall be conclusive of the right of the person or persons in whose favor granted to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever. SEC. 7. _And be it further enacted_, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting _such fugitive from service or labor_, either with or without process as aforesaid; or shall rescue, or attempt to rescue, _such fugitive from service or labor_, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person, so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons, legally authorized as aforesaid; or shall harbor or conceal such _fugitive_, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars and imprisonment not exceeding six months, by indictment and conviction before the district court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for _each fugitive so lost_ as aforesaid, to be recovered by action of debt in any of the district or territorial courts aforesaid, within whose jurisdiction the said offence may have been committed. SEC. 8. _And be it further enacted_, That the marshals, their deputies, and the clerks of the said district and territorial courts, shall be paid for their services the like fees as may be allowed to them for similar services in other cases; and where such services are rendered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where such supposed fugitive may be discharged out of custody for the want of sufficient proof as aforesaid, then such fees are to be paid in the whole by such claimant, his agent or attorney; and in all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to the claimant, his or her agent or attorney; or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examination, to be paid in either case by the claimant, his or her agent or attorney. The person or persons authorized to execute the process to be issued by such commissioners for the arrest and detention of fugitives from service or labor as aforesaid, shall also be entitled to a fee of five dollars each for each person he or they may arrest and take before any such commissioner as aforesaid at the instance and request of such claimant, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them: such as attending to the examination, keeping the fugitive in custody, and providing him with food and lodging during his detention, and until the final determination of such commissioner: and in general for performing such other duties as may be required by such claimant, his or her attorney or agent, or commissioner in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid by such claimants, their agents or attorneys, whether such supposed fugitive from service or labor be ordered to be delivered to such claimants by the final determination of such commissioners or not. SEC. 9. _And be it further enacted_, That upon affidavit made by the claimant of such fugitive, his agent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will be rescued by force from his or their possession before he can be taken beyond the limits of the State in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugitive in his custody, and to remove him to the State whence he fled, and there to deliver him to said claimant, his agent or attorney. And to this end the officer aforesaid is hereby authorized and required to employ so many persons as he may deem necessary, to overcome such force, and to retain them in his service so long as circumstances may require; the said officer and his assistants, while so employed, to receive the same compensation, and to be allowed the same expenses as are now allowed by law for the transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treasury of the United States. SEC. 10. _And be it further enacted_, That when any person held to service or labor in any State or Territory, or in the District of Columbia, shall escape therefrom, the party to whom such service or labor shall be due, his, her, or their agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of the escape aforesaid, and that the person escaping owed service or labor to such party. Whereupon the court shall cause a record to be made of the matters so proved, and also a general description of the person so escaping, with such convenient certainty as may be; and a transcript of such record authenticated by the attestation of the clerk, and of the seal of the said court, being produced in any other State, Territory, or District in which the person so escaping may be found, and being exhibited to any judge, commissioner, or other officer authorized by the law of the United States to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned. And upon the production by the said party of other and further evidence, if necessary, either oral or by affidavit, in addition to what is contained in the said record, of the identity of the person escaping, he or she shall be delivered up to the claimant. And the said court, commissioner, judge, or other person authorized by this act to grant certificates to claimants of fugitives, shall, upon the production of the record and other evidences aforesaid, grant to such claimant a certificate of his right to take any such person identified and proved to be owing service or labor as aforesaid, which certificate shall authorize such claimant to seize or arrest and transport such person to the State or Territory from which he escaped: _Provided_. That nothing herein contained shall be construed as requiring the production of a transcript of such record as evidence as aforesaid; but in its absence, the claim shall be heard and determined upon other satisfactory proofs competent in law. HOWELL COBB, _Speaker of the House of Representatives._ WILLIAM R. KING. _President of the Senate, pro tempore._ Approved September 18th, 1850. MILLARD FILLMORE. 
31335	----	[Transcribers notes] This text is derived from a raw txt file in the Internet Archive. Obvious misspellings have been corrected but quotations and contemporary spellings are unchanged. The St. Peters river is mentioned as a proposed northern border for the new state of Iowa. It is now named the Minnesota river; it runs from western Minnesota (about 120 miles north of the final Iowa border at 43.5 degrees North) southeast to Mankato (about 45 miles north of the Iowa border), then to the Twin Cities (about 120 miles north of the Iowa border). Had the St. Peters been adopted about 15,000 square miles of what is now Minnesota would have been Iowa. Another proposal to extend the border to the 45th parallel would have put most of the Twin Cities in Iowa. [End Transcriber's note] HISTORY OF THE CONSTITUTIONS OF IOWA BY BENJAMIN F. SHAMBAUGH, PH. D. PROFESSOR OF POLITICAL SCIENCE IN THE UNIVERSITY OF IOWA PUBLISHED BY THE HISTORICAL DEPARTMENT OF IOWA DES MOINES, IOWA 1902 TO HIS FRIEND CHARLES ALDRICH FOUNDER AND CURATOR OF THE HISTORICAL DEPARTMENT OF IOWA THIS VOLUME IS GRATEFULLY DEDICATED BY THE AUTHOR PREFACE To recur occasionally to the history and ideals of our pioneer forefathers will give us a more generous appreciation of the worth of our Commonwealth and a firmer faith in our own provincial character. It is believed that a more intimate knowledge of the political history of our own Commonwealth will not only inspire local patriotism, but give us a better perspective of the political life of the Nation. This little volume was written for publication by the Historical Department of Iowa upon the request of Mr. Charles Aldrich. Since the work is intended as a narrative essay, it has been thought best to omit all foot-note citations to authorities. For the original sources upon which the essay is largely based the reader is referred to the author's collections of documentary materials which have been published by the Iowa State Historical Society. Quotations used in the body of the text have been reprinted _literatim_ without editing. The Convention of 1857 and the Constitution of 1857 have been little more than noticed in chapters XIX and XX. An adequate discussion of these subjects would have transcended the limits set for this volume by several hundred pages. The author wishes to express his obligations to his friend and colleague, Professor W. C. Wilcox, of the University of Iowa, who has carefully read the proof-sheets of the whole volume. BENJ. F. SHAMBAUGH. UNIVERSITY OF IOWA JULY, 1902 CONTENTS I. INTRODUCTION II. A DEFINITION III. THE CONSTITUTION MAKERS IV. SQUATTER CONSTITUTIONS V. THE TERRITORY OF WISCONSIN VI. THE TERRITORY OF IOWA VII. THE CONSTITUTION OF THE TERRITORY VIII. THE CONSTITUTION OF THE TERRITORY AMENDED XI. AGITATION FOR A STATE CONSTITUTION X. THE CONVENTION OF 1844 XI. THE CONSTITUTION OF 1844 XII. THE CONSTITUTION OF 1844 SUBMITTED TO CONGRESS XIII. THE CONSTITUTION OF 1844 DEBATED AND DEFEATED BY THE PEOPLE XIV. THE CONSTITUTION OF 1844 REJECTED A SECOND TIME XV. THE CONVENTION OF 1846 XVI. THE CONSTITUTION OF 1846 XVII. THE NEW BOUNDARIES XVIII. THE ADMISSION OF IOWA INTO THE UNION XIX. THE CONVENTION OF 1857 XX. THE CONSTITUTION OF 1857 _AN HISTORICAL ESSAY_ I INTRODUCTION Three score years and ten after the declaration went forth from Independence Hall that "all men are created equal," and fifteen years before the great struggle that was to test whether a nation dedicated to that proposition can long endure, Iowa, "the only free child of the Missouri Compromise," was admitted into the Union on an equal footing with the original States. Profoundly significant in our political evolution are events such as these. They are milestones in the progressive history of American Democracy. To search out the origin, to note the progress, to point to the causes, and to declare the results of this marvelous popular political development in the New World has been the ambition of our historians. Nay more, the "American experiment" has interested the talent of Europe; and our political literature is already enriched by De Tocqueville's "_Democracy in America_," by von Holst's "_Constitutional and Political History of the United States_," and by Bryce's "_American Commonwealth_." Ever since its adoption the Constitution of the "Fathers" has been the most popular text-book of constitution drafters the world over. At the same time it is strangely true that the real meaning, the philosophical import, of this interesting political drama has scarcely anywhere been more than suggested. A closer view reveals the fact that all of the documents themselves have not yet been edited, nor the narrative fully told. At present there is not a chapter of our history that is wholly written, though the manuscript is worn with erasures. To be sure, Bancroft has written exhaustively of the Colonies; Fiske has illuminated the Revolution and portrayed the "Critical Period;" Frothingham has narrated the "Rise of the Republic;" Parkman has vividly pictured events in the Northwest; McMaster has depicted the life of the people; von Holst has emphasized the importance of slavery; Rhodes has outlined more recent events; and a host of others have added paragraphs, chapters, monographs, and volumes to the fascinating story of the birth and development of a Democratic Nation. But where are the classics of our local history? Who are the historians of the Commonwealths? These questions reveal great gaps in our historical literature on the side of the Commonwealths. Nor have the omissions passed unnoticed. Bryce likens the history of the Commonwealths to "a primeval forest, where the vegetation is rank and through which scarcely a trail has been cut." And yet it is clearly evident that before the real import of American Democracy can be divined the forest must be explored and the underbrush cleared away. This is not a plea for localism or particularism. On the contrary, it suggests the possibility of a broader view of our National life. It points to the source of our political ideals. For nothing is more misleading than the inference that the life of our people is summed up in the Census Reports, the Journals of Congress, and the Archives of the Departments at Washington. The real life of the American Nation spreads throughout forty-five Commonwealths. It is lived in the commonplaces of the shop, the factory, the office, the mine, and the farm. Through the Commonwealths the spirit of the Nation is expressed. Every American community, however humble, participates in the formation and expression of that spirit. Thus the real significance of the Commonwealth in any philosophical consideration depends not so much upon its own peculiar local color as upon the place which it occupies in the life and development of the larger National whole. It is so with Iowa. Here within the memory of men still living a new Commonwealth has grown to maturity, has been admitted into the Union, and now by common consent occupies a commanding position in National Politics. It is, moreover, from the view-point of these larger relations that the political and constitutional history of Iowa will ultimately be interpreted. No amount of interest in merely local incident or narration of personal episode will suffice to indicate the import of Iowa's political existence. He who essays to write the history of this Commonwealth must ascend to loftier heights. To narrate briefly the history of the Constitutions of Iowa, and therein to suggest, perhaps, somewhat of the political ideals of the people and the place which this Commonwealth occupies politically in the progressive history of the larger Commonwealth of America, is the purpose of these pages. II A DEFINITION Definition is always difficult; it may be tiresome. But when a term has come to have many different meanings, then no one who seriously desires to be understood can use it in the title of a text without at least attempting a definition. This is true of the word "Constitution," which in the literature of Political Science alone has at least three distinct meanings corresponding to the three points of view, that is, the philosophical, the historical, and the legal. From the view-point of Political Philosophy the word "Constitution," stands for the fundamental principles of government. It is the sum (1) of the general and basic principles of all political organization by which the form, competence, and limitations of governmental authorities are fixed and determined, and (2) of the general and basic principles of liberty, in accordance with which the rights of men living in a social state are ascertained and guaranteed. In short, it is the sum of the ultimate principles of government. But from the view-point of Historical Politics this word has a different connotation. Consider, for example, the political literature that appears under such headlines as "Constitutional History" or the "History of Constitutional Government." Here Constitution means not abstract philosophic principles of Government, but concrete political phenomena, that is, political facts. Our constitutional historians do not as a rule deal directly with the ultimate principles of government; but they are concerned rather with their progressive phenomenal manifestations in the assembly, the court, the office, the caucus, the convention, the platform, the election, and the like. Thus Constitutional History is simply a record of concrete political facts. It is, however, in the literature of Jurisprudence that the term "Constitution" is used in accordance with an exact definition. Constitutional Law, or the Law of the Constitution, means a very definite thing to the Jurist. It stands (at least in America) for a written instrument which is looked upon "as the absolute rule of action and decision for all departments and officers of government . . . and in opposition to which any act or regulation of any such department or officer, or even of the people themselves, will be altogether void." In this sense a Constitution is a code of that which is fundamental in the Law. To be sure, this code or text, as everybody knows, does not provide for all that is fundamental in government. It usually contains much that is temporary and unimportant. But to the American Jurist all that finds expression in the written document labeled "Constitution" is Constitutional Law. Accordingly, he defines the Constitution as the written or codified body of fundamental law in accordance with which government is instituted and administered. It is as a code or text of fundamental law that the word "Constitution" is used in the title of these pages. This is not a philosophical discussion of the ultimate principles of our government, nor an outline of our constitutional history, but simply a narrative touching the written texts or codes that have served the people of Iowa as fundamental law during the past sixty years. III THE CONSTITUTION MAKERS Constitutions are not made; they grow. This thought has become a commonplace in current political literature. And yet the growth of which men speak with such assurance is directed, that is, determined by the ideals of the people. Members of constituent assemblies and constitutional conventions neither manufacture nor grow Constitutions--they simply formulate current political morality. It is in the social mind back of the convention, back of the government, and back of the Law that the ideals of human right and justice are conceived, born, and evolved. A Constitution is a social product. It is the embodiment of popular ideals. And so the real makers of the Constitutions of Iowa were not the men who first in 1844, then in 1846, and then again in 1857 assembled in the Old Stone Capitol on the banks of the Iowa River. The true "Fathers" were the people who, in those early times from 1830 to 1860, took possession of the fields and forests and founded a new Commonwealth. They were the pioneers, the frontiersmen, the squatters--the pathfinders in our political history. Aye, they were the real makers of our fundamental law. The first of the Iowa pioneers crossed the Mississippi in the early thirties. They were preceded by the bold explorer and the intrepid fur-trader, who in their day dared much, endured much, and through the wildernesses lighted the way for a westward-moving civilization. Scarcely had their camp-fires gone out when the pioneer appeared with ax and ox and plow. He came to cultivate the soil and establish a home--he came to stay. The rapidity with which the pioneer population of Iowa increased after the Black-Hawk war was phenomenal. It grew literally by leaps and bounds. Men came in from all parts of the Union--from the North-west, from the East, from the South, and from the South-east. They came from Maine and Massachusetts, from New York and Pennsylvania, from Virginia and the Carolinas, from Georgia, Kentucky and Tennessee, and from the newer States of Ohio and Indiana. It is said that whole neighborhoods came over from Illinois. In 1835 Lieutenant Albert Lea thought that the population had reached at least sixteen thousand souls. But the census reports give a more modest number--ten thousand five hundred. When the Territory of Iowa was established in 1838 there were within its limits twenty-two thousand eight hundred and fifty-nine people. Eight years later, when the Commonwealth was admitted into the Union, this number had increased to one hundred and two thousand three hundred and eighty-eight. Thus in less than a score of years the pioneers had founded a new Empire west of the Mississippi. And such an Empire! A land of inexhaustible fertility! A hundred thousand pioneers with energy, courage, and perseverance scarcely less exhaustible than the soil they cultivated! In the location of a home the pioneer was usually discriminating. His was not a chance "squatting" here or there on the prairie or among the trees. The necessities--water and fuel--led him as a rule to settle near a stream or river, and never far from timber. The pioneers settled in groups. One, two, three, or more families constituted the original nucleus of such groups. The groups were known as "communities" or "neighborhoods." They were the original social and political units out of the integration of which the Commonwealth was later formed. But the vital facts touching the pioneers of Iowa are not of migration and settlement. In political and constitutional evolution the emphasis rests rather upon the facts of character. What the pioneers were is vastly more important than where they came from, or when and where and how they settled; for all law and government rests upon the character of the people, Constitutions being simply the formulated expressions of political Ethics. It is in this broad catholic sense that the ideals of pioneer character became the determining factors in Iowa's political evolution and the pioneers themselves the real makers of our fundamental law. Two opinions have been expressed respecting the early settlers of Iowa. Calhoun stated on the floor of Congress that he had been informed that "the Iowa country had been seized upon by a lawless body of armed men." Clay had received information of the same nature. And about the same time Senator Ewing (from Ohio) declared that he would not object to giving each rascal who crossed the Mississippi one thousand dollars in order to get rid of him. Nor was the view expressed by these statesmen uncommon in that day. It was entertained by a very considerable number of men throughout the East and South, who looked upon the pioneers in general as renegades and vagabonds forming a "lawless rabble" on the outskirts of civilization. To them the first settlers were "lawless intruders" on the public domain, "land robbers," "fugitives from justice," and "idle and profligate characters." Squatters, they held, were those "who had gone beyond the settlement and were wholly reckless of the laws either of God or man." Nay more, they were "non-consumers of the country, performing no duties either civil or military." In short, gentlemen who had never even visited the Iowa frontier talked glibly about frontier lawlessness, anarchy, and crime. Such wholesale defamation when applied to the early settlers of Iowa ought not to be dismissed with a shrug. The men who made these harsh charges were doubtless honest and sincere. But were they mistaken? All testimony based upon direct personal observation is overwhelmingly against the opinions they expressed. Lieutenant Albert Lea who had spent several years in the Iowa District writes in 1836 that "the character of this population is such as is rarely to be found in our newly acquired territories. With very few exceptions there is not a more orderly, industrious, active, painstaking population, west of the Alleghanies, than is this of the Iowa District. Those who have used the name 'squatters' with the idea of idleness and recklessness, would be quite surprised to see the systematic manner in which everything is here conducted . . . . It is a matter of surprise that about the Mining Region there should be so little of the recklessness that is usual in that sort of life." In 1838 Peter H. Engle, writing from Dubuque, says: "The people are all squatters; but he who supposes that settlers . . . . who are now building upon, fencing and cultivating the lands of the government are lawless depredators, devoid of the sense of moral honesty, or that they are not in every sense as estimable citizens, with as much intelligence, regard for law and social order, for public justice and private rights . . . . as the farmers and yeomen of New York and Pennsylvania, . . . . has been led astray by vague and unfounded notions, or by positively false information." The statements of Lea and Engle fairly represent the views of those who from actual personal contact were familiar with the life and character of the pioneers. We may then rest assured that the squatters of Iowa were as a class neither idle, nor ignorant, nor vicious. They were representative pioneers of their day, than whom, Benton declared, "there was not a better population on the face of the earth." They were of the best blood and ranked as the best sons of the whole country. They were young, strong, and energetic men--hardy, courageous, and adventurous. Caring little for the dangers of the frontier, they extended civilization and reclaimed for the industry of the world vast prairies and forests and deserts. They made roads, built bridges and mills, cleared the forests, broke the prairies, erected houses and barns, and defended the settled country against hostile Indians. They were distinguished especially for their general intelligence, their hospitality, their independence and bold enterprise. They had schools and schoolhouses, erected churches, and observed the sabbath. A law abiding people, the pioneers made laws and obeyed them. They were loyal American citizens and strongly attached to the National government. The pioneers were religious, but not ecclesiastical. They lived in the open and looked upon the relations of man to nature with an open mind. To be sure their thoughts were more on "getting along" in this world than upon the "immortal crown" of the Puritan. And yet in the silent forest, in the broad prairie, in the deep blue sky, in the sentinels of the night, in the sunshine and in the storm, in the rosy dawn, in the golden sunset, and in the daily trials and battles of frontier life, they too must have seen and felt the Infinite. Nor is it a matter of surprise that the pioneers of Iowa possessed the elements of character above attributed to them. In the first place, only strong and independent souls ventured to the frontier. A weaker class could not have hoped to endure the toils, the labors, the pains, and withal the loneliness of pioneer life; for the hardest and at the same time the most significant battles of the 19th century were fought with axes and plows in the winning of the West. The frontier called for men with large capacity for adaptation--men with flexible and dynamic natures. Especially did it require men who could break with the past, forget traditions, and easily discard inherited political and social ideas. The key to the character of the pioneer is the law of the adaptation of life to environment. The pioneers of Iowa were what they were largely because the conditions of frontier life made them such. They were sincere because their environment called for an honest attitude. Having left the comforts of their old homes, traveled hundreds and thousands of miles, entered the wilderness, and endured the privations of the frontier, they were serious-minded. They came for a purpose and, therefore, were always _about_, doing something. Even to this day, their ideals of thrift and "push" and frugality pervade the Commonwealth. And so the strong external factors of the West brought into American civilization elements distinctively American--liberal ideas and democratic ideals. The broad rich prairies of Iowa and Illinois seem to have broadened men's views and fertilized their ideas. Said Stephen A. Douglas: "I found my mind liberalized and my opinions enlarged when I got out on these broad prairies, with only the heavens to bound my vision, instead of having them circumscribed by the narrow ridges that surrounded the valley [in Vermont] where I was born." Speaking to an Iowa audience, Governor Kirkwood once said: "We are rearing the typical Americans, the Western Yankee if you choose to call him so, the man of grit, the man of nerve, the man of broad and liberal views, the man of tolerance of opinion, the man of energy, the man who will some day dominate this empire of ours." How prophetic! Nowhere did the West exert a more marked influence than in the domain of Politics. It freed men from traditions. It gave them a new and a more progressive view of political life. Henceforth they turned with impatience from historical arguments and legal theories to a philosophy of expediency. Government, they concluded, was after all a relative affair. "Claim Rights" were more important to the pioneer of Iowa than "States Rights." The Nation was endeared to him; and he freely gave his first allegiance to the government that sold him land for $1.25 an acre. He was always _for the Union_, so that in after years men said of the Commonwealth he founded: "Her affections, like the rivers of her borders, flow to an inseparable Union." But above all the frontier was a great leveler. The conditions of life there were such as to make men plain, common, unpretentious--genuine. The frontier fostered the sympathetic attitude. It made men really democratic and in matters political led to the three-fold ideal of Equality which constitutes the essence of American Democracy in the 19th century, namely: Equality before the Law, Equality in the Law, Equality in making the Law. The pioneer of the West may not have originated these ideals. The first, Equality before the Law, is claimed emphatically as the contribution of the Puritan. But the vitalizing of these ideals--this came from the frontier, as the great contribution of the pioneer. IV SQUATTER CONSTITUTIONS It may seem strange to class the customs of the pioneers among the early laws of Iowa. But to refer to the "Resolutions" and "By-Laws" of the squatters as political Constitutions is more than strange; it is unorthodox. At the same time History teaches that in the evolution of political institutions, customs precede statutes; written laws follow unwritten conventions; the legal is the outgrowth of the extra-legal; and constitutional government is developed out of extra-constitutional government. One need not search the records of antiquity nor decipher the monuments for illustrations of these truths; for in the early political history of Iowa there is a recurrence of the process of institutional evolution including the stage of customary law. Here in our own annals one may read plainly writ the extra-legal origin of laws and constitutional government. Absence of legislative statutes and administrative ordinances on the frontier did not mean anarchy and disorder. The early settlers of Iowa were literally, and in that good old Anglo-Saxon sense, "lawful men of the neighborhood," who from the beginning observed the usages and customs of the community. Well and truly did they observe the customs relative to the making and holding of claims. And as occasion demanded they codified these customs and usages into "Constitutions," "Resolutions," and "By-Laws." Crude, fragmentary, and extra-legal as were their codes, they nevertheless stand as the first written Constitutions in the history of the Commonwealth. They were the fundamental laws of the pioneers, or, better still, they were Squatter Constitutions. The Squatter Constitutions of Iowa, since they were a distinctive product of frontier life, are understood and their significance appreciated only when interpreted through the conditions of Western life and character. It was through cession and purchase that the United States came into possession of the vast public domain of which the fertile farming fields of Iowa formed a part. Title to the land vested absolutely in the Government of the United States. But the right of the Indians to occupy the country was not disputed. Until such right had been extinguished by formal agreement, entered into between the United States and the Indians, no white citizen was competent to make legal settlement therein. As early as 1785 Congress provided that no settlement should be made on any part of the public domain until the Indian title thereto had been extinguished and the land surveyed. Again, in 1807, Congress provided: "That if any person or persons shall, after the passing of this act, take possession of, or make a settlement on any lands ceded or secured to the United States by any treaty made with a foreign nation, or by a cession of any State to the United States, which lands shall not have been previously sold, ceded, or leased by the United States, or the claim to which lands, by such person or persons, shall not have been previously recognized and confirmed by the United States; or if any person or persons shall cause such lands to be thus occupied, taken possession of, or settled; or shall survey, or attempt to survey, or cause to be surveyed, any such lands; or designate any boundaries thereon, by marking trees, or otherwise, until thereto duly authorized by law; such offender or offenders shall forfeit all his or their right, title, and claim, if any he hath, or they have, of whatsoever nature or kind the same shall or may be to the lands aforesaid, which he or they shall have taken possession of, or settled, or caused to be occupied, taken possession of, or settled, or which he or they shall have surveyed, or attempt to survey, or the boundaries thereof he or they shall have designated, or cause to be designated, by marking trees or otherwise. And it shall moreover be lawful for the President of the United States to direct the marshal, or the officer acting as marshal, in the manner hereinafter directed, and also to take such other measures, and to employ such military force as he may judge necessary and proper, to remove from land ceded, or secured to the United States, by treaty, or cession, as aforesaid, any person or persons who shall hereafter take possession of the same, or make, or attempt to make a settlement thereon, until thereunto authorized by law. And every right, title, or claim forfeited under this act shall be taken and deemed to be vested in the United States, without any other or further proceedings." In March, 1833, the act of 1807 was revived with special reference to the Iowa country to which the Indian title was, in accordance with the Black-Hawk treaty of 1832, to be extinguished in June. It was made "lawful for the President of the United States to direct the Indian agents at Prairie du Chien and Rock Island, or either of them, when offenses against the said act shall be committed on lands recently acquired by treaty from the Sac and Fox Indians, to execute and perform all the duties required by the said act to be performed by the marshals in such mode as to give full effect to the said act, in and over the lands acquired as aforesaid." Thus it is plain that the early settlers of Iowa had no legal right to advance beyond the surveyed country, mark off claims, and occupy and cultivate lands which had not been surveyed and to which the United States had not issued a warrant, patent, or certificate of purchase. But the pioneers on their way to the trans-Mississippi prairies did not pause to read the United States Statutes at Large. They outran the public surveyors. They ignored the act of 1807. And it is doubtful if they ever heard of the act of March 2, 1833. Some were bold enough to cross the Mississippi and put in crops even before the Indian title had expired; some squatted on unsurveyed lands; and others, late comers, settled on surveyed territory. The Government made some successful effort to keep them off Indian soil. But whenever and wherever the Indian title had been extinguished, there the hardy pioneers of Iowa pressed forward determining for themselves and in their own way the bounds and limits of the frontier. Hundreds and thousands of claims were thus located! Hundreds and thousands of farms were thus formed! Hundreds and thousands of homesteads were thus established! Hundreds and thousands of improvements were thus begun! Hundreds and thousands of settlers from all parts of the Union thus "squatted" on the National commons! All without the least vestige of legal right or title! In 1836, when the surveys were first begun, over 10,000 of these squatters had settled in the Iowa country. It was not until 1838 that the first of the public land sales were held at Dubuque and Burlington. These marginal or frontier settlers (squatters, as they were called) were beyond the pale of constitutional government. No statute of Congress protected them in their rights to the claims they had staked out and the improvements they had made. In _law_ they were trespassers; in _fact_ they were honest farmers. Now, it was to meet the peculiar conditions of frontier life, and especially to secure themselves in what they were pleased to call their rights in making and holding claims, that the pioneers of Iowa established land clubs or claim associations. Nearly every community in early Iowa had its local club or association. It is impossible to give definite figures, but it is safe to say that over one hundred of these extra-legal organizations existed in Territorial Iowa. Some, like the Claim Club of Fort Dodge, were organized and flourished after the Commonwealth had been admitted into the Union. In the "Recollections" and "Reminiscences" of pioneers many references are made to these early land clubs or claim associations, and Constitutions, By-laws, or Resolutions are sometimes reproduced therewith in whole or in part. But _complete and adequate manuscript records_ of but two Iowa organizations have thus far come to light. The "Constitution and Records of the Claim Association of Johnson County," preserved by the Iowa State Historical Society, were published in full in 1894. The materials of this now famous manuscript, which are clear and complete, were arranged as follows: I. Constitution and Laws; II. Minutes of Meetings; III. Recorded Claims; IV. Recorded Quit Claim Deeds. The Constitution of the Johnson County Association is perhaps the most elaborate Squatter Constitution in the annals of early Iowa. It was adopted March 9th, 1839, and consists of three articles, twenty-three sections, and over twenty-five hundred words. Article I. fixes the name of the Association, and declares that "the officers of this association shall be one President, one Vice President, One Clerk or Recorder of claims, deeds or transfers of Claims, seven Judges or adjusters of claims or boundary . . . and two Marshalls." All of the officers were elected annually. Article II. relates to "sallerys." It provides that "the Clerk or Recorder shall receive Twenty-five cents for recording each and everry claim, and fifty cents for everry deed or conveyance . . . . and Twelve & a half cents for the privalege of examining his Books." The Judges and Marshals were allowed one dollar and fifty cents each for every day spent in the discharge of the duties of their respective offices. Article III. contains ten sections bearing upon a variety of subjects. Section 1 indicates in detail how claims are to be made and recorded and the boundaries thereof designated. No person was allowed to hold more than four hundred and eighty acres. Section 2 provides that "any white male person over the age of eighteen can become a member of this association by signing the laws rules and regulations governing the association," that "actual citizens of the County over the age of seventeen who are acting for themselves and dependent on their own exertions, and labour, for a lively hood, and whose parents doe not reside within the limits of the Territory can become members of this association and entitled to all the privalages of members," but that "no member of the association shall have the privalege of voting on a question to change any article of the constitution or laws of the association unless he is a resident citizen of the county and a claimholder, nor shall any member be entitled to vote for officers of this association unless they are claim holders." The same section provides that "any law or article of the constitution of this association may be altered at the semianual meetings and at no other meetings provided, however, that three fifths of the members presant who are resident citizens of the county and actual claim holders shall be in favour of such change or amendment, _except that section fixing the quantity of land that everry member is entitled to hold by claim and that section shall remain unaltered_." By the same article semi-annual meetings of the Association are provided for in section 3. Section 5 declares that "all persons who have resided within the limits of the County for Two months, shall be recognized and considered as citizens of the County." Another section stipulates that "members of the association who are not citizens of the County shall be required in making claims to expend in improvements on each claim he or they may have made or may make the amount of fifty Dollars within six months of the date of making such claim or claims and fifty Dollars every six months there after until such person or persons becomes citizens of the county or forfeit the same." The 10th section relates to the procedure of the Claim Court. Finally, in section 11 the members pledge their "honours" for the "faithful observance and mantanance" of the Constitution by subscribing their names to the written document. In addition to the Constitution, Resolutions were, from time to time, adopted with the force of laws. It is here that the real spirit and purpose of the pioneer squatters is best expressed. With characteristic frankness they resolved to "discountenance any attempts on the part of any and every person to intrude in any way upon the rightful claims of another," since "the presumption is that a person thus attempting to take away a portion of the hard earnings of the enterprising and industrious setler is dishonest & no Gentlemen." That they insisted upon equity rather than upon refined technicalities in the administration of their law is seen in the following: "Resolved that to avoid difficulty growing out of the circumstance of persons extending their improvements accidentaly on the claims of others before the Lines were run thereby giving the first setlr an opportunity or advantage of Preemption over the rightful owner that any person who hold such advantages shall immediately relinquish all claim thereto to the proper owner and any one refusing so to do shall forfeit all claim to the right of protection of the association." For the speculator who sometimes attended the land sales the squatters had little respect; so they "Resolved that for the purpose of garding our rights against the speculator we hereby pledge ourselves to stand by each other and to remain on the ground until all sales are over if it becomes necessary in order that each and every setler may be secured in the claim or claims to which he is justly entitled by the Laws of this association." And remarkable as it may seem, the same protection which was pledged "before the sale" was guaranteed to "all such members as may be unable to enter their claims at the sale after such sale and until the same may be entered by them." The following are typical records of claims as recorded in the claim book of the Johnson County Association: "The following is a decription of my claim made about the 15 of January 1838, that I wish recorded. Situated on Rapid Creek About Two Miles above Felkners & Myers mill Johnson County Iowa Territory Commencing about 20 Rods South of Rapid Creek at a double white Oak Tree Blazed & 3 notches on one side and 4 on the other and then running West three fourths of a mile to a double white Oak on the east side of a small branch Blazed and marked as before described then running North about three fourths of a mile to a white Oak tree Blazed and marked as before then running East about three fourths of a mile to a small Bur Oak tree on the west side of Rapid Creek marked and blazed as before mentioned then running South crossing Rapid Creek to the place of beginning March 20th 1839. GRIFFITH SHRECK" "The following claim I purchased of John Kight in February 1839, & I wish it registered to me as a claim made as I have not got his deed with me the same being the S W qr of S 14, & that part of the S 1/2 of S 15, that Lyes East of the Iowa River--T 79 N. R. 6 W. July 3rd 1840 handed in July 3, 1840 ROBERT LUCAS" An illustrative quitclaim deed from the same records reads as follows: "This bargen made and entered into by the following parties Viz this day I James Williams has bargened and sold to Philo Costly a certain claim lying on the E side of Rapid Creek boundrys of said claim as follows commencing at a white Oak tree standing about 80 Rods below the upper forks of Rapid Creek thence running south 1/2 mile thence E 1 mile to a stake standing on the Prairie near 2 Trees. thence N 1/2 mile to a stake thence W. 1 mile to the starting place--I the said Williams agree and bind myself to defend all rights & claims excepting the claim of the general Government and also singular all rights claims & Interests to said claim for and in concideration of the sum of one hundred Dollars the receipt thereof I here in acknowledge said Williams agrees to put up a House and finish Except putting up the Chimney & dobing and also said Williams is to Haul out Eight or Ten hundred rails all included for the receipt above mentioned. Receipt. Johnson County. I. T. January 25, 1841 JAMES WILLIAMS [SEAL] Witness CORNELIUS HENYAN Handed in Februrary 3rd 1841" The manuscript records of the Claim Club of Fort Dodge, discovered several years ago among the papers of Governor Carpenter, are now carefully preserved by the Historical Department at Des Moines. From these records it appears that the first meeting of the Claim Club of Fort Dodge was held on the 22d day of July, 1854. At this meeting a committee was chosen to draft a "code of laws," and the following motions were passed: "First. That 320 Acres shall constitute a claim. 2d. A claim may be held one month by sticking stakes and after that 10 dollars monthly improvements is necessary in order to hold a claim. Also that a cabin 16 x 16 feet shingled and enclosed so as to live in is valued at $30.00." Of the same date are the following By-laws or Resolutions: "Whereas the land in this vicinity is not in market and may not be soon, We, the undersigned claimants deem it necessary in order to secure our lands to form ourselves into a Club for the purpose of assisting each other in holding claims, do, hereby form and adopt the following byelaws: _Resolved_ 1st. That every person that is an Actual claimant is entitled to hold 320 Acres of land until such time as it comes into market. _Resolved_ 2d. That any person who lives on their claim or is continually improving the same is an actual Claimant. _Resolved_ 3d. That stakeing out a claim and entering the same on our Claim Book shall hold for one month. _Resolved_ 4th. That $10, Monthly shall hold a claim thereafter. _Resolved_ 5th. That no mans claim is valid unless he is an actual settler here, or, has a family and has gone after them, in which case he can have one month to go and back. _Resolved_ 6th. That any person not living up to the requirements of these laws shall forfeit their claim, and, any Actual Settler who has no claim may settle on the same. _Resolved_ 7th. That any person going on anothers claim that is valid, shall be visited by a Com. of 3 from our club and informed of the facts & and if such person persist in their pursuits regardless of the Com or claimant they shall be put off the Claim by this Club. _Resolved_ 8th. That the boundaries of these laws shall be 12 miles each way from this place. _Resolved_ 9th. That this club shall hold its meetings at least once in each month. _Resolved_ 10th. That the officers of this club shall consist of a Chairman & Secty. _Resolved_ 11th. That the duty of the Chairman is to call to order, put all questions, give the casting vote when there is a tie, &c. &c. _Resolved_ 12th. That the duty of the sec. is to keep the minutes of the meetings and read the same at the opening of each meeting and have the book and papers in his charge. _Resolved_ 13th. That any or all of the bye laws may be altered or abolished by a majority vote at a regular meeting." On the offense of "claim-jumping" the records of the Fort Dodge Club contain this suggestive entry: "On Motion of Wm. R. Miller that if any member of this Club finds his or any of his friends Clames has been Jumpt that they inform this Club of the fact and that this Club forthwith put them off of said clame without trobling the Sivel Law." In the _Iowa News_ of March 28, 1838, was printed "The Constitution of the Citizens of the North Fork of the Maquoketa, made and adopted this 17th day of February, A. D. 1838." It is a typical Squatter Constitution of the Territorial period. "Whereas, conflicting claims have arisen between some of the settlers residing upon Government Lands, and whereas many individuals have much larger claims than are necessary for common farming purposes, Therefore, we, the subscribers, to preserve order, peace and harmony, deem it expedient to form an association, and adopt some certain rules, by which those difficulties may be settled, and others prevented. Therefore, we do covenant, and agree to adopt and support the following articles. Art. 1. This association shall be called the North Fork of Maquoketa Association, for the mutual protection of settlers' claims on Government Lands. Art. 2. That there shall be elected by the subscribers, a President, whose duty it shall be to call meetings to order, and preside as Chairman, and to receive complaint and to appoint a Committee of three from the Great Committee, to settle all difficulties that arise from conflicting claims, and also to fill vacancies. Art. 3. There shall be a Vice President elected, whose duty it shall be to fill the office of President in his absence. Art. 4. There shall be chosen a Secretary, whose duty it shall be to keep a correct Journal of the acts and proceedings of each and every meeting, and register all claims in a book kept by him for that purpose, who shall receive the sum of 25 cents for the registering of each and every claim. Art. 5. There shall be elected a committee of nine men, to be called the Grand Committee. Art. 6. No settler shall be entitled to hold more than three quarter sections of land. Each settler shall give in the numbers of the quarter sections that he may claim. Each and every settler shall make an improvement on his, her, or their claim, sufficient to show that the same is claimed, previous to having the same recorded. Art. 7. All minors under sixteen shall not be considered as holding claims, either by themselves, parents, or otherwise. Art. 8. The Secretary, at the request of eight subscribers, shall call a meeting of the settlers, by advertising the same in three different places, not less than ten days previous to the meeting. Art. 9. No person shall have any attention paid to his, her, or their complaint until they first subscribe to this Constitution. Art. 10. All committees that shall sit or act under this constitution, shall determine in their decision and declare which party shall pay the costs, and each declaration shall be binding and be collected according to the laws of this Territory. Art. 11. When complaints shall be made to the President, he shall immediately notify the sitting committee of three to meet at some convenient place. Then if said committee be satisfied that the opposing party has been timely notified, shall then proceed to investigate and try the case in dispute, receive evidence, and give their decision according to justice and equity, which decision shall be final: Provided, always, That either party considering injustice has been done, shall have a right to appeal to the Grand Committee, together with the President, who shall investigate the same, and shall give their decision in writing, from which there shall be no appeal. All appeals shall be made within ten days, or forever excluded. Art. 12. There shall be held an annual meeting on the 1st Monday of November for the election of officers and committees. Art. 13. The fees of each committee man with the President, shall not exceed one dollar per day. Art. 14. This constitution may be altered and amended by a vote of two thirds of the members. Art. 15. All committees made under this constitution shall be the judges of its meaning and spirit, and the resolutions of its meeting shall be governed according to their decisions. Art. 16. All persons not settlers, having claims not settled before the 1st of May, 1838, shall be forfeited." A hundred pages could easily be devoted to this interesting phase of our political history, but the details already given will suffice to indicate the nature, scope, and purpose of the Squatter Constitutions of Iowa. Their influence is clearly seen in a fourfold direction. First, they made it possible and practicable for the settlers to go upon the public domain (surveyed or unsurveyed) and establish homes without the immediate inconvenience of paying for the land. Secondly, they secured to the bona fide settlers the right to make improvements on the public lands and to dispose of the same for a reasonable consideration, or to purchase their improved land from the Government at the minimum price of $1.25 an acre. Thirdly, they afforded bona fide settlers adequate protection in the peaceable possession and enjoyment of their homes without fear of being molested or ousted, either by the Government, or the newcomer, or the land speculator, until the land was offered for sale, or opened for entry, or until they were able to enter or purchase the same for themselves and their families. Fourthly, they fostered natural Justice, Equality, and Democracy on the frontier (_a_) by establishing order under a Government founded upon the wishes of the people and in harmony with the peculiar conditions, social and economic, of the community, (_b_) by giving security alike to all bona fide settlers, (_c_) by limiting the amount of land any one settler could rightfully hold, (_d_) by requiring all disputes to be settled in regularly constituted courts, and (_e_) by conducting all public affairs in and through mass meetings, with the full knowledge and consent of all the people. In their Constitutions and Resolutions the squatters suggested, and in a measure definitely determined, the manner of disposing of the public lands. The principles of the most important legislation of Congress relative to the public domain came from the frontier. A comparison of the customs of the squatters with the provisions of the pre-emption and homestead acts reveals the truth that the latter are largely compilations of the former. These American principles of agrarian polity are products of frontier experience. One is even justified in suggesting that herein we have, perhaps, come across the origin of the American principle of homestead exemptions. Is it not reasonable to suggest that the emphasis which frontier life and customs placed upon the importance and value of the homestead gave birth to the laws that are "based upon the idea that as a matter of public policy for the promotion of the property of the State and to render independent and above want each citizen of the Government, it is proper he should have a home--a homestead--where his family may be sheltered and live beyond the reach of financial misfortune?" The Squatter Constitutions stand for the beginnings of local political institutions in Iowa. They were the fundamental law of the first governments of the pioneers. They were the fullest embodiment of the theory of "Squatter Sovereignty." They were, indeed, fountains of that spirit of Western Democracy which permeated the social and political life of America during the 19th century. But above all they expressed and, in places and under conditions where temptations to recklessness and lawlessness were greatest, they effectively upheld the foremost civilizing principle of Anglo-Saxon polity--the Rule of Law. V THE TERRITORY OF WISCONSIN The year one thousand eight hundred and thirty-six is memorable in the constitutional annals of Iowa, since it marks the beginning of the Territorial epoch and the advent of our first general code or text of fundamental law. To be sure, the Iowa country had had a certain constitutional status ever since the acquisition of the Province of Louisiana in 1803. In 1804, it formed a part of the District of Louisiana, which was placed. under the jurisdiction of the Governor and Judges of the Territory of Indiana; in 1805, it remained a part of that district known henceforth as the Territory of Louisiana; in 1812, it was included within the newly created Territory of Missouri; in 1821, it was reserved for freedom by the Missouri Compromise; and finally, after being without a local constitutional status for more than thirteen years, it was "attached to, and made a part of, the territory of Michigan" for "the purpose of temporary government." Nevertheless, it would be sheer antiquarianism to catalogue the treaty and conventions of 1803 and the several acts of Congress establishing the District of Louisiana, the Territory of Louisiana, the Territory of Missouri, and the Territory of Michigan as Constitutions of Iowa. Furthermore, a Constitution is the fundamental law of a _people_, not of a _geographical area_; and since the Iowa country was practically uninhabited prior to 1830, the earlier Territorial governments, which have been mentioned, had for Iowa only a nominal political significance. This is not to deny that Iowa has a history prior to 1830: it simply points out that this earlier history is largely a record of changes in subordinate jurisdiction over a geographical area, and in no sense the annals of a political society. Even after the permanent settlement of the Iowa country in the early thirties and its union with the Territory of Michigan in 1834, constitutional government west of the Mississippi continued to be more nominal than real. This is true notwithstanding the fact that the archives of the Territory of Michigan show that the Governor and the Legislative Council made a serious attempt to provide for and put into operation local constitutional government. In his message of September 1, 1834, addressed to the Legislative Council, Governor Mason referred to the inhabitants as "an intelligent, industrious and enterprising people," who, being "without the limits of any regularly organized government, depend alone upon their own virtue, intelligence and good sense as a guaranty of their mutual and individual rights and interests." He suggested and urged "the immediate organization for them of one or two counties with one or more townships in each county." The suggestions of the Governor were referred to the committee on the Judiciary, and incorporated into "An Act to lay off and organize counties west of the Mississippi River." This act, which was approved September 6th, to go into effect October 1st, organized the Iowa country to which the Indian title had been extinguished in June, 1833, into the counties of Dubuque and Demoine. It also provided that each county should constitute a township, and that the first election for township officers should take place on the first Monday of November, 1834. The laws operative in the county of Iowa, and not locally inapplicable, were to have full force in the country west of the Mississippi. Furthermore, the archives show that the offices of the newly created counties were duly filled by the Governor of the Territory of Michigan "by and with the consent of the Legislative Council." Letters and petitions addressed to the Governor are evidence that the people did not hesitate to recommend candidates or ask for removals. In Dubuque County they forced the resignation of the Chief Justice of the County Court and secured the appointment of a candidate of their own choice. And when a vacancy occurred in the office of Sheriff, the inhabitants of the same County, thinking that "the best method of recommending a suitable person for that office was to elect one at their annual township meeting," voted for Mr. David Gillilan as their choice. The Clerk of the County Court, who was authorized to notify the Governor of the results of the election, expressed the "hope that a commission will be prepared and sent as early as practicable." The records show that Mr. Gillilan was subsequently appointed by the Governor. So much for the public archives of the Territory of Michigan respecting the political status of the Iowa country. In a memorial to Congress drawn up and adopted by a delegate convention of of the people west of the Mississippi assembled at Burlington in November, 1837, this statement is made in reference to the two years from 1834 to 1836: "During the whole of this time the whole country, sufficient of itself for a respectable State, was included in the counties Dubuque and Demoine. In each of these two counties there were holden, during the said term of two years, two terms of a county court, as the only source of judicial relief up to the passage of the act of Congress creating the Territory of Wisconsin." The Legislative Council of the Michigan Territory, in a memorial which bears the date of March 1, 1836, went on record to this effect: "According to the decision of our Federal Court, the population west of the Mississippi are not within its jurisdiction, a decision which is presumed to be in accordance with the delegated power of the court and the acknowledged laws of the land; but that ten or twelve thousand free-men, citizens of the United States, living in its territory, should be unprotected in their lives and property, by its courts of civil and criminal jurisdiction, is an anomaly unparalleled in the annals of republican legislation. The immediate attention of Congress to this subject is of vital importance to the people west of the Mississippi." On the floor of Congress, Mr. Patton of Virginia "adverted to the peculiar situation of the inhabitants of that Territory [the Territory which was soon afterwards organized as Wisconsin] they being without government and without laws." This was in April, 1836. On the same day Mr. George W. Jones, the delegate from Michigan, declared that the people of western Wisconsin "are now, and have ever been, without the pale of judicial tribunals." He "stated that he did not know of a single set of the laws of the United States within the bounds of the contemplated Territory." The position of the Iowa country for several months immediately preceding the organization of the Territory of Wisconsin was indeed peculiar. In the eastern part of what had been the Territory of Michigan the people had framed and adopted a State Constitution. As early as October, 1835, they elected State officers. But on account of a dispute with Ohio over boundary lines, Congress was in no hurry to recognize the new State. Then for a time there were two governments--the Government of the State of Michigan and the Government of the Territory of Michigan--each claiming to be the only rightful and legitimate authority. It was not until January, 1837, that the existence of Michigan as a State was recognized at Washington. Lieutenant Albert M. Lea, a United States army officer, who had spent some time in the country west of the Mississippi did not fail to observe the anomalous condition of the people. Writing early in 1836, he said: "It is a matter of some doubt, in fact, whether there be any law at all among these people; but this question will soon be put to rest by the organization of the Territory of Wisconsin within which the Iowa District is by law included." But a general conclusion concerning the actual political status of the Iowa country prior to the organization of the Territory of Wisconsin is no longer doubtful when to these documentary evidences are added the sweeping testimony of the early squatters who declare that the only government and laws they knew or cared anything about in those days were the organization and rules of the claim club. It is substantially correct to say; (1) that the Territorial epoch in our history dates from the fourth day of July, 1836, when Wisconsin was constituted "a separate Territory," for the purposes of temporary government, and (2) that our first code or text of fundamental law, that is to say, the first Constitution of Iowa was "An Act establishing the Territorial Government of Wisconsin." As regards this conclusion two criticisms are anticipated. First, it will be said that since the Territory of Iowa was organized in 1838, the Territorial epoch in our history could not have begun in 1836. Secondly, it will be said that an act of Congress providing for and establishing a Territory is not a Constitution. The answer to the first criticism lies in the fact that the Iowa country was not an outlying district attached to the Territory of Wisconsin, but really formed a constituent part thereof. The area of Wisconsin Territory west of the Mississippi was far more extensive than the area of the same Territory east of the river. In population the two areas were nearly equal; but the west tended to increase more rapidly than the east. The importance of the west is further evidenced by the removal of the Capital after the first session of the Legislative Assembly from Belmont in eastern Wisconsin to Burlington in western Wisconsin. The constitutional history of Wisconsin up to the division of the Territory in 1838 is, therefore, clearly a part of the Territorial history of Iowa. The assignment of the old name "Wisconsin" to the country east of the Mississippi and of the new name "Iowa" to the country west of that river in 1838, when the Territory of Wisconsin was divided, did _not give rise_ to Territorial government among our people. The act of Congress of June 12, 1838, provided for the division of an existing Territory and the _continuation_ of Territorial government in the western part thereof under the name Iowa. When, however, all this is conceded, the propriety of referring to the Organic Act of a Territory as a Constitution is questioned. It is true that the act establishing the Territorial government of Wisconsin was not drawn up by the people of the Territory. It was not even submitted to them for ratification. Handed down to them by Congress, in the form of an ordinary statute, it was a pure product of legislation. It did not even have the label "Constitution," or "Fundamental Compact," or "Organic Law." Nevertheless, this instrument was a veritable Constitution, since it was a written body of fundamental law in accordance with which the government of the Territory was instituted and administered. It was supreme, serving as the absolute rule of action for all departments and officers of the Territorial government. The courts always took this view of the Organic Act, and refused to enforce acts which were clearly in opposition to its provisions. VI THE TERRITORY OF IOWA In the year 1836 there was printed and published at Philadelphia a small book bearing on its title-page these words: NOTES ON WISCONSIN TERRITORY, WITH A MAP. BY LIEUTENANT ALBERT M. LEA, UNITED STATES DRAGOONS. PHILADELPHIA. HENRY S. TANNER--SHAKESPEAR BUILDING. 1836. The significance of this little volume lies in the fact that through it the country destined to give birth to "the only free child of the Missouri Compromise" was christened IOWA. Lieutenant Lea was familiar with the country described in his "Notes." He had traveled through it, had seen its beautiful prairies, had met its inhabitants face to face, and had enjoyed their frontier hospitality. He must have been deeply impressed by the Iowa river and its name. Referring to the country west of the Mississippi river he says: "The District under review has been often called 'Scott's Purchase,' and it is sometimes called the 'Black-Hawk Purchase'; but from the extent and beauty of the Iowa river which runs centrally through the District, and gives character to most of it, the name of that stream, being both euphonous and appropriate, has been given to the District itself." The Iowa District was likely to become a separate Territory at an early day, since all indications pointed in the direction of a division of the Territory of Wisconsin. First, the geographical area of the Territory as designated in the Organic Act was sufficient for three or four ordinary Commonwealths. Secondly, this area did not possess geographical unity. Thirdly, historical traditions and considerations favored the establishment of a separate Territory east of the Mississippi, which at the proper time should be admitted as the fifth State born of the Ordinance of 1787 within the limits of the old Territory of the Northwest. Fourthly, the population of the Territory, which was increasing with unparalleled rapidity, was so widely scattered as to make it practically impossible to give equal force to the laws and equal efficiency to the administration of government in all of the frontier communities. That the "Father of Waters" should serve as the natural line of division was generally conceded. Scarcely had the act organizing the Territory of Wisconsin gone into effect, when the agitation for division was launched. By the fall of 1837 it had captured the public mind. The burden of the movement was taken up with enthusiasm by the inhabitants of the Iowa District. They realized that the proposition to remove the seat of the Territorial government from Burlington to some point east of the Mississippi was likely to rob them of much political influence and some distinction. They felt that a Territorial government located somewhere "in the vicinity of the Four Lakes" could not successfully administer constitutional government in the Iowa District. The people of Des Moines county were among the first to take formal action on what may well be called the first vital question in the history of the Constitutions of Iowa. At a meeting held in the town of Burlington on Saturday, September 16, 1837, they resolved "That while we have the utmost confidence in the ability, integrity and patriotism of those who control the destinies of our present Territorial Government, and of our delegate in the Congress of the U. States, we do, nevertheless, look to a division of the Territory, and the organization of a separate Territorial Government, by Congress, west of the Mississippi river, as the only means of immediately and fully securing to the citizens thereof, the benefits and immunities of a government of laws." In another resolution they "respectfully and earnestly recommend to the people of the Territory west of the Mississippi river, immediately to hold county meetings in their respective counties, and appoint three delegates from each county, to meet in Convention at this place, on the first Monday in November next." Pursuant to this call of the people of the county of Des Moines for an Iowa District convention, delegates from seven organized counties west of the Mississippi met at the Capitol in Burlington on Monday, November 6, 1837, and organized themselves into a "Territorial Convention." As such they continued in session for three successive days. On the second day a resolution was adopted inviting the Governor, members of the Legislative Council, Judges, and members of the bar of Burlington "to take seats within the bar." Committees were then appointed to prepare memorials on the several subjects before the delegates for consideration. On the third day three separate memorials to Congress were unanimously adopted. These related to (1) pre-emptions, (2) the northern boundary line of Missouri, and (3) the division of the Territory. In the memorial relative to the proposed division of the Territory, it was represented, "That the citizens of that part of the Territory west of the Mississippi River, taking into consideration their remote and isolated position, and the vast extent of country included within the limits of the present Territory, and the utter impracticability of the same being governed as an entire whole, by the wisest and best administration of our municipal affairs, in such manner as to fully secure individual right and the rights of property, as well as to maintain domestic tranquillity, and the good order of society, have by their respective Representatives, convened in general convention as aforesaid, for the purpose of availing themselves of their right of petition as free citizens, by representing their situation and wishes to your honorable body, and asking for the organization of a separate Territorial Government over that part of the Territory west of the Mississippi River. "Without, in the least, designing to question the official conduct of those in whose hands the fate of our infant Territory has been confided, and in whose patriotism and wisdom we have the utmost confidence, your memorialists cannot refrain from the frank expression of their belief that, taking into consideration the geographical extent of her country, in connection with the probable population of western Wisconsin, perhaps no Territory of the United States has been so much neglected by the parent Government, so illy protected in the political and individual rights of her citizens . . . . It will appear that we have existed as a portion of an organized Territory for sixteen months, with but one term of court. Your memorialists look upon those evils as growing exclusively out of the immense extent of country included within the present boundaries of the Territory, and express their conviction and belief, that nothing would so effectually remedy the evil as the organization of Western Wisconsin into a separate territorial Government. To this your memorialists conceive themselves entitled by principles of moral right, by the sacred obligation that rests upon the present government to protect them in the free enjoyment of their rights, until such time as they shall be permitted to provide protection for themselves; as well as from the uniform practice and policy of the Government in relation to her other Territories . . . . Your memorialists therefore pray for the organization of a separate territorial government over that part of the Territory of Wisconsin west of the Mississippi river." The time and place of the meeting of this remarkable "Territorial Convention" were certainly most opportune. Meeting in the halls of the Legislative Assembly at the Capital of the Territory and in the very presence of the members of the Assembly, the delegates declared it to be the wish and will of the people that the Territory be divided. The members of the Assembly were impressed with the fact that the people west of the Mississippi were in earnest, and, as representatives of the whole Territory, they too drew up a memorial which was approved by the Governor within three weeks after the Convention had adjourned. In this memorial the Legislative Assembly stated the case as follows: "That owing to the great extent of country embraced in the limits of Wisconsin Territory, and that vast extent of Territory being separated by a natural division, (the Mississippi river,) which renders the application of the same laws oppressive or unequal to one section or the other; the true policy of the two sections of the Territory being as widely different as their locations; and the impracticability of the officers of the General Government to administer the laws; render it highly important in the opinion of your memorialists that that portion of the Territory lying west of the Mississippi river be formed into a separate Territorial Government. "The Territory of Wisconsin now contains fifty thousand inhabitants; one-half of which, at least, reside on the west side of the Mississippi river. "Without any intention of censuring the official conduct of the officers in whose hands the administration of our infant Territory has been intrusted . . . . your memorialists would respectfully represent, that the western portion of Wisconsin, with a population of twenty-five thousand souls, reaps but a small portion of the benefits and advantages of the fostering care and protection of the mother Government. Your memorialists would further represent, that the population of Wisconsin is increasing with a rapidity unparalleled in the history of the settlement of our country; that, by a division of the Territory, and the formation of a separate Territorial Government west of the Mississippi river, your honorable body would greatly advance the political and individual interests of her citizens." By January 1, 1838, the people had expressed their views. They had formulated their convictions into a definite request which called for immediate division of the Territory. The scene of debate and discussion now shifts from the prairies to the halls of Congress. Here on February 6, 1838, the Committee on the Territories, to whom had been referred the memorials of the Territorial Convention and Legislative Assembly along with petitions from sundry citizens, and who by a resolution of December 14, 1837, had been instructed "to inquire into the expediency of establishing a separate Territorial Government for that section of the present Territory of Wisconsin which lies west of the Mississippi river and north of the State of Missouri," reported a bill to divide the Territory of Wisconsin, and establish the Territorial government of Iowa. In the report which accompanied this bill the Committee stated that they had become "satisfied that the present Territory of Wisconsin is altogether too large and unwieldy for the perfect and prompt administration of justice or for the convenient administration of the civil government thereof." They were more specific in saying that "the judges of the Territory, as it now is, and also the Governor, district attorney, and marshal, are entirely unable to perform their respective duties in all parts of the Territory." They also pointed out that of the fifty thousand inhabitants in the Territory more than half resided west of the Mississippi river, that the population was rapidly increasing, that the natural line of division was the Mississippi river, that the Capital would soon be removed to eastern Wisconsin, and that "so much of the Territory of Wisconsin as is east of the Mississippi river must necessarily form one State." It was not, however, until early in the month of June that "An act to divide the Territory of Wisconsin and to establish the Territorial Government of Iowa" passed both the Senate and the House of Representatives. On June 12, 1838, it received the approval of President Van Buren. As the Constitution of the Territory of Iowa it took effect on the sixty-second anniversary of the Independence of the American Nation. In the chronology of our Constitutions it stands as the second code or text of fundamental law. But the Territory of Iowa was not established without opposition in Congress. The discussion in the House of Representatives on the fifth and sixth days of June, and immediately preceding the passage of the act dividing the Territory of Wisconsin, brought out something of the broader significance of the proposition to create a new Territory in the country west of the Mississippi and north of the State of Missouri. From the records it appears that the sympathies of the Representatives were not all with the men on the frontier. Mr. Mason of Ohio, who moved to strike out the enacting clause, said that he desired to obtain information relative to the assertion "that the people had settled there in a manner contrary to law." "Mr. Waddy Thompson opposed the bill and the creation of a Territorial Government in the Northwest." He went at great length into "a consideration of the balance of power between the Northern and Western, and Southern States, as far as related to the questions of slavery, and the annexation of Texas." He declared that "he would never consent to the coming in of these Territories or States into the Union, when the fanatical spirit of the North was pouring into the House memorials against the annexation of Texas, simply because it was cursed with the peculiar institution of the South." To preserve the balance of power between the two sections of the Union, was the substance of Mr. Thompson's plea. If by the creation of the Territory of Iowa the North is promised a new State, the demand of the South for the annexation of Texas should, in accordance with the principle of the balance of power, be recognized. Thus it was proposed to meet the problem of admitting States at the time of the formation of new Territories. In the course of the debate it was suggested by Mr. Mercer "that Iowa be organized as a Territory when Wisconsin was admitted as a State." It remained for Mr. Shepard of North Carolina to make emphatic objections all along the line. He opened his speech by intimating that the bill had been introduced to the end that "a fresh rich field might be opened to those who speculate in public lands, and a batch of new offices created for such as seek Executive favor." He had no sympathy with the squatters. "Who are these that . . . . pray for the establishment of a new Territory? Individuals who have left their own homes and seized on the public land . . . . These men pounced on the choicest spots, cut down the timber, built houses, and cultivated the soil as if it were their own property . . . . Without the authority of law and in defiance of the Government, they have taken possession of what belongs to the whole nation, and appropriated to a private use that which was intended for the public welfare. These are they who require a governor and council, judges, and marshals, when every act of their lives is contrary to justice, and every petition which they make is an evidence of their guilt and violence. We, who are insulted, whose authority is trampled under foot, are asked for new favors and privileges; the guardians of the law are approached by its open contemners, and begged to erect these modest gentlemen into a dignified Government . . . . I cannot sanction their conduct; if they would not move peaceably, they should go at the point of the bayonet; if they forget what is due to their country and their distant fellow-citizens, they ought to be punished. The majesty of the laws should be vindicated." The Representative from North Carolina was jealous of the growth and development of the West, and he objected to the liberal land policy of the United States since it encouraged the young men to leave their southern homes. He declared that "if the Territory of Iowa be now established, it will soon become a State; and if we now cross the Mississippi, under the beautiful patronage of this Government, the cupidity and enterprise of our people will carry the system still further, and ere long the Rocky Mountains will be scaled, and the valley of the Columbia be embraced in our domain. This then is the time to pause . . . . "If happiness depended entirely on the number of hogs raised, or the quantity of corn gathered, then the citizens should be dispersed, so as to occupy the most fertile spots in our whole territory . . . . But whatever may be the effect of this land policy on the general welfare, it has been deeply injurious to the Southern portion of the Confederacy . . . . If all of the people born in North Carolina had remained in its limits, our swamps and low grounds would have rivalled the valley of the Nile in production, and our pine barrens would have been flourishing with the vine, the olive, and the mulberry. We have, therefore, reason to complain of the policy of this Government . . . . Others may act as pleases them, but I will never sustain a policy so detrimental to the people with whom I am connected . . . . If these remarks be unavailing, the patriot should fear for the permanence of the Republic." The spirited debate, which took place in the House of Representatives, on the question of the establishment of the Territorial government of Iowa disclosed the fact that the creation of a new Territory at this time west of the Mississippi and north of Missouri was of more than local interest; it was, indeed, an event in the larger history of America. Some few men were beginning to realize that the rapid settlement of the Iowa country was not an isolated provincial episode but the surface manifestation of a current that was of National depth. Far-sighted statesmen whose eyes were neither blinded by the lights of the moment nor yet always riveted upon that which for the time was most brilliant, saw that a plain, common-looking pioneer farmer from across the Mississippi had come upon the stage of National Politics and had already begun to play a role in the great drama of American Democracy. But even the prophets did not so much as dream that, within the memory of men then living, the awkward amateur would take the part of a leading actor in the play. VII THE CONSTITUTION OF THE TERRITORY The Territorial epoch in our history began in 1836, when the Territory of Wisconsin was established; it came to a close in 1846, when the State of Iowa was organized and admitted into the Union. Two Constitutions belong to this decade--the Organic Act of the Territory of Wisconsin, and the Organic Act of the Territory of Iowa. These Constitutions are very much alike both in form and content. Indeed, the latter was copied from or modeled upon the former. An outline of either would fairly indicate the content of the fundamental law for the whole Territorial epoch. But to avoid unnecessary repetition on the one hand and confusion on the other, the title of the present chapter will be taken to mean the Organic Act of 1838. The Constitution of the Territory of Iowa is clearly an outgrowth of American political development. In its provisions is summed up the final product of that most interesting series of evolutionistic transformations in Territorial government that took place throughout the North and West. The first in the long line of American Territorial Constitutions, and the starting point of subsequent development, was the ordinance of the Congress of the Confederation now familiarly known as "The Ordinance of 1787." Nor was this famous ordinance itself a code of _new_ political principles. Consciously or unconsciously its framers drew largely from the principles, forms, and practices of American government prior to the Revolution. The analogy between the Colonial and Territorial governments of America is too striking to be dismissed as accidental. The relation of the United States to the Territories has always been of a Colonial character. In the history of Territorial government the Ordinance of 1787 stands as the Magna Charta of the West. But the Great Ordinance like the Great Charter was in many respects crude, incomplete, and un-American. Place it by the side of the Constitution of the Territory of Iowa, and it is plain to see that in the course of fifty years marked changes had taken place--especially in the direction of democratization. The Constitution of the Territory is a written instrument of twenty sections or articles, containing in all about four thousand words. It has no preamble, but is simply introduced by the enacting clause. As a pure product of Congressional legislation it was promulgated upon the legislative authority of Congress with the approval of the President of the United States. In its origin, therefore, it resembles the Royal Charters of Europe more than the written Constitutions of America. The Constitution of the Territory was literally handed down to the people who were governed under its provisions _without their own consent_ directly given. The first section purports to create a new Territory, by fixing the boundaries thereof and declaring that from and "after the third day of July next, all power and authority of the Government of Wisconsin, in and over the Territory hereby constituted shall cease." On reading this section one is almost startled by the matter-of-fact way in which a body of legislators _seem_ to have made a Constitution and established a new political society. In providing for the executive department in the very next section the logical order of the Constitution of the United States was reversed by placing the executive "power and authority" before that of the legislative. This, however, was altogether natural, since the Governor had been the central figure in Territorial government ever since the days of the great St. Clair. He was no figure-head, but the real Government, influencing legislation as well as directing the administration. Robert Lucas, the first of the Territorial Governors of Iowa, seems to have fully apprehended this fact, for from the very outset he made himself the real power in public affairs. The influence of the Governor was dominant in Territorial government chiefly because, like his prototype in the Colonies, he represented the majesty and the supreme authority of the National government. "The executive power and authority in and over the said Territory of Iowa," runs the Organic Act, "shall be vested in a Governor, who shall hold his office for three years, unless sooner removed by the President of the United States." The Governor was appointed by the President, but must reside in the Territory and "shall take care that the laws be faithfully executed." He was commander-in-chief of the militia and commissioned all officers appointed under the laws of the Territory. It was his to grant pardons for offenses against the laws of the Territory and provisional reprieves for offenses against the laws of the United States. Besides all this, he was Superintendent of Indian affairs for the National government. In the government of the Territory of Iowa the Governor was something more than chief of the militia and author of commissions and pardons. Like the King of England, he was a constituent branch of the law-making body. Not only did the Organic Act declare "that the legislative power shall be vested in the Governor and a Legislative Assembly," but it gave to the Governor the power of an absolute veto over all acts of the Assembly. Indeed, it was this extraordinary power to participate in legislation along with the power to appoint all inferior judicial officers, justices of the peace, sheriffs, militia officers, and county surveyors that gave our first Governor a real power and prestige not since enjoyed by any executive--State or Territorial. A Secretary of the Territory was provided for in the third section. This officer stood next to the Governor in importance; and in case of the death, removal, resignation, or necessary absence from the Territory of the latter he was authorized and required to execute and perform the gubernatorial powers and duties. The Secretary was appointed by the President for a term of four years, but was subject to removal at any time. His chief duty was to record and preserve the laws, acts, and proceedings of both the Legislative Assembly and the Governor, and yearly transmit copies thereof to the President of the United States and to the Speaker of the House of Representatives. The legislative power was, by the fourth section of the Constitution, "vested in the Governor and a Legislative Assembly." The Assembly was a representative body organized on the bicameral plan into a "Council" and a "House of Representatives." The Council consisted of thirteen members, elected biennially; while the House of Representatives had just double that number, elected annually. The members of both houses were chosen directly by the qualified voters of the Territory. They were elected by districts, and apportioned on the basis of population. The Assembly was to meet annually; "but no session in any year shall exceed the term of seventy-five days." A lavish delegation of power was granted to the Legislative Assembly by the sixth section of the Constitution which provided "that the Legislative power of the Territory shall extend to all rightful subjects of legislation." Just what is meant by "rightful subjects of legislation" is nowhere stated. But from the pages of the Territorial statutes it is manifest that the important subjects of legislation were in general the establishment of local government, the creation of business and public corporations, the maintenance of the institution of private property, the fulfilment of contracts, and the guarantee of personal security. The sphere of legislation granted to the Territory was larger than that reserved to the Commonwealth of Iowa. It would, however, be a grave mistake to view the powers of the Legislative Assembly as unlimited, since the Constitution of the Territory contains (_a_) certain specific prohibitions, (_b_) a general limitation, and (_c_) a Bill of Rights. The specific prohibitions are: "no law shall be passed, interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents." These specific prohibitions are followed in the same section by the general limitation which reads: "All the laws of the Governor and Legislative Assembly shall be submitted to, and if disapproved by, the Congress of the United States, the same shall be null and of no effect." The Territorial Bill of Rights as set forth in the Constitution is exceedingly brief--perhaps the shortest Bill of Rights on record. It consists of a single sentence and reads as follows: "The inhabitants of the said Territory shall be entitled to all the rights, privileges and immunities heretofore granted and secured to the Territory of Wisconsin and to its inhabitants." On its face this guarantee of the fundamental rights of man and of the citizen seems vague and unsatisfactory. But it is, nevertheless, large in implication. If we turn to the Constitution of the Territory of Wisconsin to see what rights, privileges, and immunities were therein guaranteed, we find "that the inhabitants of the said Territory shall be entitled to, and enjoy, all and singular the rights, privileges, and advantages, granted and secured to the people of the Territory of the United States northwest of the river Ohio, by the articles of the compact contained in the ordinance for the Government of the said Territory, passed on the thirteenth day of July, one thousand seven hundred and eighty-seven; and shall be subject to all the conditions and restrictions and prohibitions in said articles of compact imposed upon the people of the said Territory." In other words, the provisions of the Ordinance of 1787 are by implication made a part of the Constitution of the Territory of Iowa. Thus the people of Iowa inherited through the Territorial Constitutions of 1836 and 1838 the political principles of the great Ordinance of 1787 as a Bill of Rights. Great was the legacy. Mark the classical expression of that instrument in enumerating the immemorial rights, privileges, and principles of Anglo-Saxon polity. "No person demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments . . . . The inhabitants of the said Territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with, or affect private contracts or engagements, _bona fide_, and without fraud previously formed." These words are more than formal expressions of great principles; they are ennobling. But to read farther, that religion, morality, and knowledge are necessary to good government and the happiness of mankind, and that there shall be neither slavery nor involuntary servitude in the said Territory, is to inspire reverence. Such, indeed, are the "liberties we prize" and the "rights we will maintain." The judicial power of the Territory was vested by the Constitution in "a Supreme Court, district courts, probate courts, and in justices of the peace." The Supreme Court consisted of a Chief Justice and two associate justices. They were appointed by the President for a period of four years, and were required to hold a term of court annually at the seat of government. The Constitution further directed (_a_) that the Territory be divided into three judicial districts, (_b_) that a district court or courts be held in each of the three districts by one of the judges of the Supreme Court, and (_c_) that the said judges reside in the districts respectively assigned to them. The courts of the Territory of Iowa were "legislative courts," that is, courts created by Congressional legislation. The extent of their jurisdiction was much greater than that of State courts, since by the Organic Act they were empowered to exercise the customary jurisdiction of both State and Federal courts. In addition to those already mentioned, the Constitution provided for two other prominent Territorial officers, namely, a Marshal and an Attorney. Both were appointed by the President of the United States for a term of four years. At the National Capital the Territory was represented by a Delegate who was elected by the people for a term of two years. The Delegate was entitled to a seat in the House of Representatives where he could participate in debate but was not allowed a vote. One of the most significant sections of the Constitution is the fifth. It provides "that every free white male citizen of the United States, above the age of twenty-one years, who shall have been an inhabitant of said Territory at the time of its organization, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory." Thereafter the suffrage qualifications were to be determined by the Legislative Assembly; "_Provided_, That the right of suffrage shall be exercised only by citizens of the United States." Although the Organic Act of 1838 was almost a literal copy of the Organic Act of 1836, the following differences are worthy of observation: First, the term of the members of the Council was changed from four years in 1836 to two years in 1838. Secondly, the term of Representatives was changed from two years in 1836 to one year in 1838. Thirdly, the term of the judges of the Supreme Court was changed from "good behavior" in 1836 to four years in 1838. Fourthly, by the Organic Act of 1838 the judges of the Supreme Court were required to reside in their respective districts. Fifthly, the salary of the judges of the Supreme Court was reduced from eighteen hundred dollars in 1836 to fifteen hundred dollars in 1838. Reflection upon the history and provisions of the Constitution of the Territory leads to a few general conclusions. First, this Constitution was written i. e. codified. In the second place, it was an act of Congress. Again, its provisions represent political evolution in Territorial government up to the year 1838. Furthermore, government in the Territory, though subordinate, had a wider sphere of activity under the Organic Act than has ever since been enjoyed by government under a State Constitution. This is true, since the Legislative Assembly and the Territorial courts exercised to a considerable extent the customary functions of both National and State governments. Still further, the President of the United States was in theory the head of Territorial administration, since he had the power to appoint and remove the chief administrative officers in the Territory. Finally, there existed in the machinery of Territorial government a nice balance between administration on the one hand and legislation on the other, that is, between the part which was responsible directly to the President of the United States and the part which was responsible directly to the people of the Territory. VIII THE CONSTITUTION OF THE TERRITORY AMENDED No provision for its amendment is contained in the Organic Act of 1838; but by inference and implication it is clear that the power to change, alter, or amend the Constitution of the Territory resided in Congress. The process of amendment, therefore, was that of ordinary legislation. Congress was not long in exercising this extraordinary power. On March 3, 1839, within eight months of the organization of the Territory, the President approved two acts amending the Constitution. These were: (1) "An act to alter and amend the organic law of the Territories of Wisconsin and Iowa;" and (2) "An Act to authorize the election or appointment of certain officers in the Territory of Iowa, and for other purposes." The first limited the veto power of the Governor by providing that bills not approved by him might, nevertheless, become laws if passed a second time by two-thirds of both houses of the Legislative Assembly. The second likewise aimed at curtailing the powers of the Governor by authorizing the Legislative Assembly to "provide by law for the election or appointment of sheriffs, judges of probate, justices of the peace, and county surveyors." The history of a quarrel between the Governor and the first Legislative Assembly, which in a great measure occasioned these amendments, is significant in throwing light upon the political ideas and the democratic frankness and determination of the people of the Territory. On July 7, 1838, President Van Buren issued a commission to Robert Lucas of Ohio, appointing him Governor of the new Territory of Iowa. The position was a difficult one to fill; but the President's selection promised to be the very best. Lucas was neither young, obscure, nor inexperienced. Born in Virginia, he had served with distinction in the War of 1812. He had served in the Legislature of Ohio, and had twice been elected to the office of Governor by the people of that State. In 1832 he acted as Chairman of the first National Convention of the Democratic Party. Upon receiving his commission as Governor of Iowa, Robert Lucas repaired with all possible haste to the West. Venerable with years and political experience, he arrived at Burlington in August, 1838. Here he found that Wm. B. Conway, the Secretary of the Territory, "had _assumed_ the Executive prerogative, had issued a proclamation dividing the Territory into Judicial Districts, and was about issuing a proclamation apportioning the Representatives and ordering an election." The conduct of the Secretary provoked the Governor; and Robert Lucas was not the man to conceal his feelings or hesitate to express his mind. From that time to the death of the Secretary in November, 1839, the two men were enemies. Lucas, in a letter to John Forsyth, Secretary of State, declared that Conway "has not only done nothing to render me assistance, but _is generally believed to be the prime mover of the opposition to my proceedings, and the author_ of the documents forwarded to Washington by the members of the Legislature." The first Legislative Assembly of the Territory of Iowa did not meet until November 12, 1838. On the first day of the session each house proceeded to organize _pro tempore_. Then they assembled jointly in the hall of the House of Representatives to be sworn in by the Governor, and to receive any communication which his "Excellency" might have to make to them. Governor Lucas delivered his first message in person. He took pains to emphasize the fact that the Organic Act had vested the legislative power in "the Governor and a Legislative Assembly," which meant that "the Executive is vested with advisory and restraining powers, and the Legislative Assembly with deliberative and enacting powers." "In no place," he declared later in a communication to the Secretary of the Territory, "is there any power vested in the Legislative Assembly independent of the Governor." Throughout the message, which when printed covered ten pages of the journal, the Governor freely advised and recommended such measures as he deemed most expedient. Then near the close he boldly added: "I shall at all times take pleasure in concurring with you in acts that tend to advance the general interests of the Territory, and the prosperity of the people;--but at the same time will be compelled to withhold my assent to such acts, or proceedings, as I may conscientiously for the time being believe to be prejudicial to the public good." Robert Lucas lived up to the spirit and the letter of his declaration. In the matter of appointments the Governor's policy was courageously set forth in these words: "I shall at all times pay a due respect to recommendations; but cannot conscientiously nominate to office any individual of _bad moral character_, or, that may be addicted to _intemperance or gambling_, if known to me. These vices are so contaminating in their character, that all public officers in my opinion should be clear of even a suspicion of being addicted to them." Lucas, writing some years later, was of the opinion that this declaration was one of the potent causes of opposition to his administration. After the election of permanent officers, which followed the Governor's speech, the Legislative Assembly proceeded with energy and enthusiasm to the business of legislation. But not a few of its measures met with the disapproval of the Governor. It soon became evident that the relations between the Executive and the Assembly were not altogether cordial. The situation was made still more embarrassing by the ill feeling which existed between the Governor and the Secretary of the Territory. Indeed it is clear that Mr. Conway was instrumental in stirring up much of the opposition to Governor Lucas by confiding his private grievances to members of the Assembly, by deferring to the Assembly to the point of servility, and by affecting to set up an administrative department distinct and separate from that of the Governor. On November 14, he submitted to the Council and House of Representatives the first of a series of communications bearing directly upon his own position and powers as Secretary and his relations to the Legislative Assembly, and indirectly upon his relations to the Governor and the relations of the latter to the Assembly. It was early in the session that the Council and House of Representatives resolved "That when an act is presented to the Governor for his approval, he shall, within a reasonable time thereafter, make known to the House in which said act may have originated of his approval thereof; or if not approved of, the act shall be returned, with his objections thereto." For some weeks after its passage, this resolution seems to have received no attention. Either there was delay in presenting it to the Governor, or the Governor did not give it his immediate attention. It was not until January 4, 1839, that the resolution was returned to the House of Representatives with this observation from the Governor: "I see no place in the organic law, that vests the Council and House of Representatives with the right to dictate to the Executive in the discharge of his official duties." In the meantime the Council had taken steps looking toward the regulation by statute of all official intercourse between the legislative and executive departments of the government. On December 4, 1838, a committee of two was appointed to confer with the Governor and report a bill. The committee held the conference and reported a bill on the day following. After some discussion the bill passed the Council on December 11, but not without important amendments. On the day following, the bill as amended passed the House of Representatives. It was presented to the Governor on the 18th. On December 19, Lucas returned the bill to the Council with his veto. He objected to the changes which had been made in the bill as originally reported by the committee. At the same time he took occasion to state, for the information of the Assembly, the course he intended to pursue in the future. He said: "All bills, resolutions, or memorials, submitted to me, will be carefully examined, and if approved, will be signed and deposited in the office of the Secretary of the Territory. If special objections are found, but not sufficient to induce me to withhold my assent from the bill, resolution, or memorial, a special note of explanation will be endorsed with my approval. Bills, resolutions, or memorials, that may be considered entirely objectionable, or of doubtful policy, will be _retained under advisement_ or returned to the Legislative Assembly, with my objections, at such time, and in such way and manner as I may, for the time being, deem to be most advisable." In reply to all this it was "Resolved, By the Council and House of Representatives of the Territory of Iowa, That his Excellency Gov. Lucas, is hereby respectfully requested to inform each House of the Legislative Assembly, of all acts by him approved during the present session; and that he is further requested hereafter to inform the House in which a bill originated of his approval thereof immediately after the same has been given." With a brief message, Lucas returned this resolution to the House of Representatives on January 5, 1839. He would at all times be pleased to comply with requests from the Assembly, provided it "could be done with some propriety and conscience; but having neither secretary, clerk, messenger, assistant or other attendant, in public employ, at the Executive office, . . . . I must respectfully decline a compliance with your respectful request, and most respectfully invite your attention to my communication of the 19th December last." Two days later a committee of the House of Representatives headed by James W. Grimes reported on the Governor's vetoes. They held that the "various Executive vetoes" were not only uncalled for, but were unwarranted by the Organic Act of the Territory. The phrase in the Constitution which reads, "shall approve of all laws," is mandatory and leaves the Executive without discretion. The committee took the whole matter very seriously, believing that great principles were at stake. "As representatives of the people," they declared, "we conceive that we should be recreant to their rights and true interests, if we should acquiesce in the 'veto power' as used by the Executive . . . . We believe the people should be heard through those who represent them and are responsible to them. That their wishes should be regarded, and not the wishes of the Federal Government or a federal officer. We believe the principle claimed by the Governor is a most dangerous and pernicious principle, and as the representatives of freemen we cannot acquiesce in it." A week later the House "Resolved, That Robert Lucas is unfit to be the ruler of a free people," and appointed a select committee to prepare a memorial to the President of the United States praying for his immediate removal. The Council committee on Territorial Affairs was no less emphatic in its condemnation of the "Executive Vetoes." They did not believe that Congress in framing the Organic Act intended to confer the power of an absolute veto upon the Governor. In their report of January 22, 1839, upon the bill regulating the intercourse between the executive and legislative departments, they exclaimed: "It is time to remonstrate. The liberty of the people should be dear to their representatives, and he who DARES not defend their sacred rights, who would not, in the hour of peril, stand as a sentinel to guard their privileges, is unworthy the name of a freeman." In the meantime the Legislative Assembly had prepared a memorial to Congress requesting an amendment to the Organic Act which would limit the Governor's veto power. The Governor remained firm and unmoved to the end of the session. Notwithstanding all the resolutions, reports, and memorials of the Assembly, he continued to approve some measures, veto others, and endorse still others with special notes of explanation. Nor did the indignation of the members of the Legislative Assembly subside as the session neared its close. They now hoped to get rid of the Governor. So they addressed a memorial to "His Excellency Martin Van Buren, President of the United States," in which they enumerated at length "the faults of Governor Lucas' administration," and asked for his immediate removal from the office of Chief Executive. In the House of Representatives the minority offered a preamble and resolution praying that they be allowed to forward a counter memorial to the President, but on the motion of James W. Grimes their preamble and resolution were rejected. This remarkable memorial concerning Robert Lucas reads much like the arraignment of King George III in the Declaration of Independence. In the political history of Iowa it stands as the declaration of the independence of the will of the representatives of the people as over against the will of the administration. It stands as the protest of Democracy against the exercise of arbitrary power. Its significance lies not in any statement or misstatement of historical facts, but in the spirit of independence, courage, and democracy which pervades its lines. When the Legislative Assembly met in November, 1839, the storm had passed. The Constitution of the Territory had been amended. Robert Lucas was still in office. But, reflecting upon the situation, he could truthfully say in his message: "It is with heartfelt gratitude to Almighty God . . . . that I am, through His _special Providence_, permitted again to address the Legislative Assembly." IX AGITATION FOR A STATE CONSTITUTION The early agitation for the establishment of a State government cannot justly be interpreted as opposition to the Constitution of the Territory, or as disaffection with the Territorial government. On the contrary, it was altogether natural for the people who settled in the new Territory west of the Mississippi to look forward to the early establishment of a State government. Never in the history of the United States had Territories been viewed as permanent. In fact it was everywhere understood that the Territorial organization was at most a temporary arrangement which in time would give way to the more perfect Constitution of the Commonwealth. Then, too, in the case of Iowa there was such a rapid growth of population that admission into the Union could not be long delayed under any circumstance. Mr. Shepard was right when in 1838 he said: "If the Territory of Iowa be now established, it will soon become a State." The movement for the establishment of a State government was inaugurated by Robert Lucas in his message to the second Legislative Assembly which met at Burlington on November 4, 1839. The Governor was of the opinion that in view of the "rapidly increasing population, and advancing prosperity of the Territory" the Assembly might "with propriety proceed to measures preparatory to the formation of a Constitution and State government." He knew that some would object to such measures as premature, "inasmuch as our expenses are defrayed by the United States," while the financial burdens of a State government would all have to be borne by the people. But, argued the Governor, did not prosperity and improvement within the States of Ohio, Indiana, Illinois, and Michigan languish during the Territorial period, and then advance "with rapid strides from the moment of their several admissions into the Union as independent States?" To his Excellency these historical "facts" were conclusive. The inference was clear in his mind. Prosperity and improvement result from the establishment of State government. So he earnestly recommended to the Legislative Assembly "the early passage of a memorial to Congress, respectfully asking of that body the passage of an Act, at their ensuing session, granting to the inhabitants of Iowa Territory the right to form a Constitution and State Government, and to provide for their admission into the Union upon an equal footing with the original States." Furthermore, he recommended "the passage of a law to provide for the calling of a convention to form a state constitution, so soon as Congress may grant by law the privilege to do so." The Governor was seriously in earnest. He even went so far as to recommend definite boundaries for the proposed Commonwealth. Lucas was not alone in these advanced views. The newly elected President of the Council, Stephen Hempstead, thought that, notwithstanding the fact that the "Territory is yet in the bloom of infancy," only a "short period will elapse before Iowa will become a State." "You, gentlemen," he said, addressing the members of the Council, "are placed here for the purpose of maintaining her rights as a territory, to enact salutary laws for her government and to prepare her for an admission into the Union, under the great principles of civil liberty." But the Legislative Assembly was more conservative. At the regular session of 1839-40 it neither memorialized Congress on admission into the Union nor passed a law providing for the calling of a Convention to form a Constitution. In opposition to the recommendations of the Governor and the views of a minority in the Assembly, it was argued (1) that the establishment of State Government would increase the burdens of taxation "which must render the new State government burdensome as well as odious to the people," (2) that "it could not add to the prosperity of the agriculturalist, the merchant, the miner, or the mechanic; nor could it render any more fruitful the sources of profit which are open to honest industry and application," and (3) that the people of the Territory enjoy under the acts of Congress ample liberty and freedom in self-government. The second Legislative Assembly of the Territory was not willing to assume the responsibility of measures looking toward so radical a change in the political status of the people of Iowa. On January 17, 1840, it adjourned only to meet again in extra session later in the year. In the meantime the Committee on Territories in the House of Representatives had reported a bill enabling the people of Iowa to form a Constitution and State government. This gave Lucas an opportunity of directing attention again to the matter in which he was so deeply interested. When the Assembly met in extra session July 13, 1840, he was prepared with a suggestion that was as reasonable as it was democratic. He would have the whole question referred to the people for decision. Presuming that the bill before Congress would pass, Lucas ventured to "suggest to the Legislative Assembly the expediency of providing by law for taking the sense of the people of this Territory on the subject of a convention at the next ensuing annual election." "It appears to me," he said, "that there can be no objection to submitting the subject to the people for their consideration, as an expression of public opinion through the ballot-box would enable the ensuing Legislative Assembly to act understandingly, and in accordance with the expressed will of the people on this important subject." Following the suggestion of the Chief Executive the Assembly provided by law for obtaining the wishes of the people at the annual August elections. All who favored the calling of a Convention were required to write "convention" on their ballots; while all who opposed the proposition were required to write "no convention." The law having been approved by the Governor on the last day of July, very little time was left for its consideration by the electorate before the elections. When the official returns were counted the Governor in a proclamation declared the result to be 937 votes for and 2,907 votes against a Convention. The defeat, which was decisive, indicated that the squatters had not yet paid for their claims. And so the Organic Act of 1838 continued to serve the people of Iowa as the code of fundamental law. Robert Lucas was disappointed, but he had to admit that the Territory went on increasing in population and wealth with phenomenal rapidity, notwithstanding the "facts" in the history of the Old Northwest. Not even the "imperfect conditions of Territorial government" seemed to affect in the slightest degree the economic prosperity and improvement of this frontier community. The overwhelming defeat of the Convention proposition at the polls checked for a time all agitation in favor of a State Constitution. Even the Governor, who up to this time had been its most sanguine advocate, declared in his message of November that since the people had expressed their preference for Territorial Government, "all further legislation on the subject at the present session" is precluded. The question now remained in _statu quo_ for over a year, that is, from August, 1840, to December, 1841. In the meantime Robert Lucas had served out his full term of three years. There was no chance for his reappointment since the Democrats had lost the Presidency in the elections of 1840. The new Whig President, William Henry Harrison, appointed John Chambers, of Kentucky, to succeed the Ohio statesman. Again Iowa was fortunate in securing as Governor a man of experience and of National reputation. When Governor Chambers sent his first message to the Legislative Assembly in December, 1841, he thought he had reason to believe that if the question of a Convention were again submitted to the people there would be evidenced by them a marked change in sentiment. Why? The answer was clearly set forth in the message. First, the population of the Territory had increased phenomenally since August, 1840. Secondly, Congress had passed the "Distribution Act" which provided (_a_) that Iowa should participate in the _pro rata_ distribution, along with the twenty-six States and three Territories, and the District of Columbia, of the net proceeds of the sales of public lands, and (_b_) that five hundred thousand acres of land for internal improvements should be granted to every new State that should be admitted into the Union. John Chambers thought the liberal provisions of the Distribution Act would remove the grounds of all objections based upon the argument that State organization would be followed by burdensome taxes. In the light of these considerations he recommended that the question of a Convention be again submitted to the people. Following this recommendation, the third Legislative Assembly passed "An Act to provide for the expression of the opinion of the people of the Territory of Iowa, upon the subject of the formation of a State Constitution and Government, and to enable them to form a Constitution for the State of Iowa," which act was approved February 16, 1842. Its provisions were as elaborate as its title. A poll was to be opened at each electoral precinct at the time of the general election in August. As the qualified electors approached the polls they were to be asked by the judges of election whether they were in favor of or against a Convention. Thereupon the electors were to answer simply, "Convention" or "No Convention." The clerks of election were charged with keeping a record of these _viva voce_ votes. The act provided further, that should a majority of the votes polled be found to favor a Convention, then eighty-two delegates to such a Constitutional Convention were to be elected on the second Tuesday in October next after the election aforesaid. On the first Monday of November next following their election, the delegates elected were to meet at Iowa City "and proceed to form a Constitution and State Government, for the Territory of Iowa." Finally it was provided "that when a Constitution and form of State Government" shall have been adopted by the Convention, the same shall be published in the newspapers of the Territory and voted upon by the people at the next general election, which would be held in August, 1843. The Governor's message and the measure inspired by it were clear, full, and to the point. They called up for public consideration the whole problem of State organization in its several phases of (_a_) the calling of a Constitutional Convention, (_b_) the formation of a State Constitution, and (_c_) the admission of the State into the Union. They opened up a lively political discussion which was to continue for full five years. As to the propriety and wisdom of calling a Constitutional Convention there was from the beginning a decided difference of opinion. The act of February 16, 1842, had met with strong opposition in both houses of the Legislative Assembly. In the press and among the people of the Territory the question became, naturally enough, the local issue in party politics. The Democrats who had fathered the measure in the Assembly were everywhere heartily in favor of State organization, but the Whigs, who, being in the minority, would neither control the Convention nor officer the new State government, were vigorous in their opposition. Three days after the approval of the act of the Assembly there appeared in the _Iowa City Standard_ a remarkable letter. Its author was Francis Springer, a member of the Council and a Whig of considerable influence. His letter was in substance "a speech prepared by him to be delivered in the Council on the bill relating to the Convention, but not delivered because shut down by the majority." From this speech it appears that the bill relative to State organization, as originally introduced, provided for a vote of the people on the question of a Constitutional Convention and the election of delegates at the same time. This was confusing, since the election of delegates assumed a favorable vote on the question of a Convention. But Mr. Springer was opposed to the bill in any form. He thought that since the people had not expressed a contrary opinion their adverse vote in 1840 "ought to settle the question." He intimated that the bill sought to create places for disappointed politicians. Certain prominent Democrats--notably Robert Lucas and Judge Williams--had recently lost their positions. "So offices must be created for them. Hence the proposition to create a State Government." Furthermore, Mr. Springer opposed the bill because State organization would greatly increase the burdens of local taxation. Nor was the recent legislation of Congress a satisfactory reply; for in his opinion the benefits to be derived from the Distribution Act would after all be inconsiderable. Satisfied with existing conditions, he asked: "Are we slaves? Is our liberty restricted? Are we deprived of the rights, immunities, and privileges of American citizens? Is the rod of oppression held over us by the General Government? Has that Government manifested its care towards us by sending persons to 'spy out our liberties, misrepresent our character, prey upon us, and eat out our substance?' It is not pretended that there is a murmur of the kind. We are in possession of the most enlarged liberty and the most liberal favors. Then why urge this measure, uncalled for by the people, unwarranted by the condition of the Territory?" The newspapers of the Territory were divided on party lines. The Democratic press favored the calling of a Convention and urged the immediate organization of a State government; while the Whig press just as vigorously opposed all such measures from the calling of a Convention to admission into the Union. In favor of a Constitutional Convention it was urged that the admission of Iowa into the Union would result in a more rapid increase in the population by immigration, since immigrants as a rule preferred States to Territories. Again, admission into the Union would give Iowa more influence at Washington, which would probably mean generous appropriations by Congress for the improvement of the rapids of the Mississippi. Politically the change would place the new Commonwealth on an equal footing with the other States, give the people a voice in the election of a President in 1844, and secure to them the long desired privilege of choosing their own Governor. It was even claimed that Statehood would promote character, foster independence, engender State pride, and inspire dignity, since "it would secure to us the noblest privilege of freemen! that of electing our own officers to govern over us, instead of being subjected to the additional humiliation of having them sent from abroad for that purpose." Finally, it was suggested that if Iowa did not hasten to make application for admission into the Union, Florida, the slave Territory which was then ready to be admitted, would be paired with Wisconsin. These arguments were frequently accompanied by declamation and exhortation. The Territorial state was declared to be a condition of "colonial dependence" or "colonial vassalage." And so the question before the people was set forth as one of "Dependence" or "Independence." Will they support the proposition to establish a State government and thus follow in the footsteps of the Fathers of the Revolution? Or will they oppose the proposition and thereby brand themselves as Tories? To the advocates of State government the way was clear. "The freemen of Iowa should rise and strike for independence." On the other hand, the opponents of State organization were quite willing "to let good enough alone." They were satisfied with Territorial government and saw no good reasons for a change. They were not unmindful of the fact that under the existing arrangement the expenses of the Territorial government were paid out of the Treasury of the United States. Then, too, the Whigs thought that the whole movement in favor of a State government savored of "jobs" and party aggrandizement. "It is evident," they said, "that a scheme is maturing with the Loco-focos of this Territory to involve the people in the support of a State government" for the "express purpose, as we believe, of benefitting such men as Ex-Governor Lucas (Lord Pomposity) and Judge Williams, and a few others of the same stamp." Furthermore, some declared that Iowa was too young for Statehood, her resources were too limited, and the people were hardly prepared for the adoption of State government. Mr. Lowe argued that the change would be undesirable because there really were no eminent men in the Territory fitted for the tasks of State government. This was intimating that the pioneers of Iowa were incapable of self-government. But the vital argument against this or any measure looking toward the establishment of a State government was the one which appealed directly to the people as taxpayers. Under the Organic Act of 1838 the United States generously assumed the burden of supporting the general government of the Territory, and so the salaries of Governor, Judges, Secretary, Attorney, and Marshals, the _per diem_ allowance of the members of the Legislative Assembly, the expense of printing the laws, the contingent expenses of the Territory, and other incidental expenses were all paid out of the Treasury of the United States. Public buildings were erected out of funds drawn from the same source. But a change from Territorial to State organization meant that in the future these public expenditures would have to be met by warrants drawn on the Treasury of the State, the coffers of which must be supplied through local taxation. The people protested. The men who were industriously breaking the prairies, clearing the forests, and raising corn preferred to invest their small earnings in lands and plows and live stock. An attempt was made to answer this argument. It was confidently asserted that the additional expense entailed by a State government would not exceed thirty thousand dollars annually. Nor would this amount have to be contributed by the people of Iowa, since it was estimated that the benefits to be derived from the Distribution Act would more than meet all additional obligations. Besides the State would receive five hundred thousand acres of land as a gift; while all the lands reserved for the support of schools could, under State organization, be used for such purposes. The answer was of little avail. No one could predict with certainty the operation of the Distribution Act. Under the circumstances a majority of the voters were not willing to abandon the Territorial organization for the "dignity" of a Commonwealth government. At the general elections in August, 1842, every County in the Territory returned a majority _against_ a Convention. Again the existence of the Organic Act of 1838 as a code of fundamental law was prolonged by a vote of the people. Again the agitation for a State Constitution remained in abeyance for over a year, that is, from August, 1842, to December, 1843. In the meantime there were at least some immigrants who did not "prefer States to Territories." By May, 1844, the population of the Territory numbered over seventy-five thousand souls. When the Legislative Assembly met in December, 1843, Governor Chambers was confident that the population of Iowa had "attained a numerical strength" which entitled the people to a participation in the government of the Union and to the full benefits of local legislation and local self-government. He therefore recommended in his message that provision be made for ascertaining the wishes of the people "in relation to this important matter." At the same time he advised the Assembly to "apply to Congress to fix and establish, during its present session, a boundary for the proposed State, and to sanction the calling of a Convention and to make provision for our reception into the Union as soon as we shall be prepared to demand it." The Governor's reference at this time to a possible boundary dispute is interesting in the light of subsequent events. He says: "The establishment of a boundary for us by Congress will prevent the intervention of any difficulty or delay in our admission into the Union, which might result from our assuming limits which that body might not be disposed to concede to us." The Legislative Assembly responded promptly to the suggestion that the people of the Territory be given another opportunity to express an opinion on what had come to be the most interesting question in local politics. As early as February 12, 1844, "An Act to provide for the expression of the opinion of the people of the Territory of Iowa upon the subject of the formation of a State Constitution for the State of Iowa" was approved by the Governor. In substance this act was practically a restatement of the provisions of the act of February 16, 1842. The _viva voce_ vote was to be taken at the Township elections in April, 1844. In many respects the campaign of the spring of 1844 was a repetition of the campaign of 1842. On the main issue the political parties were divided as before, that is, the Democrats favored and the Whigs opposed the calling of a Convention. In the public speeches and in the utterances of the press there was little that was new or refreshing. All the old arguments of 1840 and 1842 were dragged out and again paraded through the editorial columns of the newspapers. Again the opponents of State organization talked about the certain increase in the burdens of taxation and intimated that the whole movement was set on foot for no other purpose than to provide places for Democratic office-seekers. Again the ardent supporters of State government ignored the latter charge and replied to the taxation argument by quoting the provisions of the Distribution Act. Altogether the discussion lacked freshness, force, and vigor--it was stale and hackneyed. Two years of growth and reflection had wrought a change in sentiment. The public mind had evidently settled down in favor of State organization. At the elections in April the people returned a large majority in favor of calling a Constitutional Convention. This first move in the direction of Statehood having been made by the people, it now remained to take the several additional steps of (1) the election of delegates to a Constitutional Convention, (2) the drafting of a State Constitution, (3) the adoption of such a Constitution by the people, and (4) the admission of the new State into the Union. X THE CONVENTION OF 1844 In accordance with the provisions of the act of February 12, 1844, and the act of June 19 amendatory thereof, seventy-three delegates to a Constitutional Convention were elected at the general Territorial elections in August, 1844. These delegates were chosen on partisan grounds. With the electorate the primary question was not, "Is the candidate well grounded in the principles of government and administration?" but "What are his political affiliations?" When the votes were counted it was found that the Democrats had won a great victory. The Whigs had not succeeded in electing one third of the whole number of delegates. Events were making rapidly toward the realization of State government. On Monday, October 7, 1844, sixty-three of the delegates elected met in the Old Stone Capitol at Iowa City and organized themselves into a constituent assembly. The meeting was informally called to order by Francis Gehon of Dubuque County. Ralph P. Lowe was chosen to act as President _pro tem_. After a temporary organization had been fully effected the Convention of 1844 was formally opened with prayer. Upon the call of Counties by the Secretary the delegates presented their credentials and took their seats. One committee was appointed to examine credentials, and another to draw up rules of proceeding. The Convention then adjourned for the day. When the Convention met on Tuesday morning the Committee on Credentials presented the names of all the delegates who had produced certificates of election. A report from the Committee on Rules was laid on the table. Mr. Bailey's resolution that "the editors of this Territory be permitted to take seats within the bar of this House" was adopted. The Convention then proceeded _viva voce_ to the election of permanent officers, that is, a President, a Secretary, an Assistant Secretary, a Door-Keeper, and a Sergeant-at-Arms. The honor of the Presidency fell to Shepherd Leffler of Des Moines County. George S. Hampton and Alexander B. Anderson, who were elected Secretary and Assistant Secretary respectively, were not members of the Convention. Warren Dodd was elected Sergeant-at-Arms, and Ephraim McBride, Door-Keeper. Upon being conducted to the chair Mr. Leffler addressed the Convention in a most earnest manner. He tried to impress upon the members the serious importance of the work before them. "You meet gentlemen," he said, "on an occasion of the deepest interest. We are in the progress of an important change, in the midst of an important revolution, 'old things are to be done away and all things are to become new.' The structure and organization of our government are to be changed, territorial relations with the parent government are soon to cease, and Iowa must soon take upon herself the duties and the responsibilities of a sovereign State. But before this important change can be fully consummated, it is necessary for us to form a republican constitution, for our domestic government. Upon you, gentlemen, a confiding people have entrusted this high responsibility. To your wisdom, to your prudence, to your patriotism, they look for the formation of that instrument upon which they are to erect the infant republic--under your auspices the youngest and fairest daughter of the whole American family is to commence her separate political existence, to take her rank in the Union of the American States, and to add her star to the proud flag of our common country. Recollect, gentlemen, that the labor of your hands, whatever may be its fashion, will not be the fashion of a day, but permanent, elementary, organic. It is not yours to gild or to finish the superstructure, but to sound the bottom, to lay the foundation, to place the corner stone. Unlike the enactments of mere legislation, passed and sent forth to-day and recalled to-morrow, your enactments, when ratified by the people are to be permanent and lasting, sovereign and supreme, governing, controlling and directing the exercise of all political authority, executive, legislative and judicial, through all time to come." Mr. Leffler hoped that the Convention would frame a Constitution which would, "in all its essential provisions, be as wise and as good if not wiser and better than any other instrument which has ever yet been devised for the government of mankind," so that "Iowa, young, beautiful and blooming as she now is, endeared to us by every attachment which can bind us to our country, may at no distant day, for every thing that is great, noble or renowned, rival if not surpass the proudest State of the American confederacy." On the same day, and after the election of officers, the report of the Committee on Rules was taken up, slightly amended, and adopted. In the afternoon Mr. Hall, who came from a back county in which no newspapers were printed, moved "that each member of the Convention have the privilege of taking twenty copies weekly of the newspapers published in this city," and at the expense of the Convention. A lively discussion followed. Some favored the motion because its object was to provide the people with information concerning the Convention, others because they had already promised papers to their constituents. But Mr. Grant thought that it was both useless and corrupt. The delegates had come to the Convention with economy on their lips and therefore should resist such "useless expenditures." The motion was lost. On the third day standing committees were announced on the following subjects: (1) Bill of Rights; (2) Executive Department; (3) Legislative Department; (4) Judicial Department; (5) Suffrage and Citizenship; (6) Education and School Lands; (7) Incorporations; (8) State Boundaries; (9) County Organization; (10) Internal Improvements; and (11) State Debts. The Convention was now in condition to take up the great task of drafting a code of fundamental law. On Thursday--the fourth day--the real work of the Convention began with a report from the Committee on State Boundaries. Of the seventy-two members who labored in the Convention and signed the Constitution there were twenty-one Whigs and fifty-one Democrats. Twenty-six of the delegates were born in the South, twenty-three in the Middle States, ten in the New England States, ten in the States of the Old Northwest, one in Germany, one in Scotland, and one in Ireland. Of those born in the United States thirteen were from Pennsylvania, eleven from Virginia, nine from New York, eight from Kentucky, eight from Ohio, six from North Carolina, six from Vermont, and one each from Massachusetts, Connecticut, New Hampshire, Maine, New Jersey, Tennessee, Indiana, and Illinois. The oldest member was sixty-six, the youngest twenty-seven; while the average age of all was about forty years. As to occupation or profession, there were forty-six farmers, nine lawyers, five physicians, three merchants, two mechanics, two miners, two mill-wrights, one printer, one miller, and one civil engineer. The Convention lost no time in procrastinating delays. Committees were prompt in making reports. Parliamentary wranglings were infrequent. There was no filibustering. The discussions were, as a rule, neither long, wordy, nor tiresome. Indeed, the proceedings were throughout conducted in a business-like manner. The Democrats were determined to frame a Constitution in accordance with what they were pleased to call "the true principles of Jeffersonian Democracy and Economy." They had the votes to carry out this determination. And yet the proceedings of the Convention were by no means formal and without enlivening discussion. The fragments of the debates which have come down to us contain many remarks suggestive of the life, character, and political ideals of the people of early Iowa. For example, the discussion concerning newspapers, already referred to, brought out an expression of the popular ideal of economy and frugality. To be sure, newspapers containing information concerning the Convention and the fundamental instrument of government which was in the process of making would, if circulated widely throughout the Territory, educate and enlighten the people. But since the proposition involved the expenditure of several hundreds of dollars it was extravagant. The sacred principle of "Economy" could not be sacrificed to enlightenment. This pioneer ideal of thriftiness persisted among the Iowans for more than a generation. Strict even to parsimoniousness in the matter of public expenditures, the pioneers of Iowa were not always puritan in observing the forms of religion. Their liberal attitude and their fearless courage in expressing views on so delicate a subject were displayed in an interesting debate in the Convention on a resolution offered by Mr. Sells to the effect "that the Convention be opened every morning by prayer to Almighty God." Mr. Chapman favored the resolution, since "the ministers would gladly attend and render the services without compensation." Mr. Gehon objected on the ground that "it would not be economical, for the Convention sat at an expense of $200 to $300 per day, and time was money." Mr. Hall moved to amend the resolution so that the exercise of prayer might "commence at least one half hour before the assembling of the Convention." But Mr. Chapman thought that such a provision would be an insult to the Clergy and to "those who believed in the superintendence of Almighty God." Mr. Kirkpatrick said that he too believed in a "superintending Providence" that "guided and controlled our actions." He was a firm believer in Christianity, but he "did not wish to enforce prayer upon the Convention." Prayer, he argued, was a moral precept which could not be enforced without violating or infringing the "natural right" of the members to worship God each in his own way. If "we can enforce this moral obligation, then we have a right . . . . to make every member of this Convention go upon his knees fifty time a day." Mr. Kirkpatrick cared nothing for precedent. "This was a day of improvement. Let those who believed so much in prayer, pray at home." After all "public prayer was too ostentatious." Mr. Sells was shocked, and would "regret to have it said of Iowa that she had so far travelled out of Christendom as to deny the duty of prayer." Ex-Governor Lucas, who was a member of the Convention, was astonished at Mr. Hall's amendment. He said that "if ever an assemblage needed the aid of Almighty Power, it was one to organize a system of Government." Furthermore, he believed that "it was due to the religious community, and to our own character" to have prayer. To reject the resolution would, he thought, "give us a bad name abroad." Mr. Hooten reminded Lucas of the story told of Franklin, who, when a boy, asked his father why he did not say grace over the whole barrel of pork at once. Mr. Hall was "opposed to any attempt on the part of the Convention to palm themselves off to be better than they really were, and above all other things, to assume a garb of religion for the purpose of giving themselves character." He doubted the efficacy of prayers invoked at political meetings, and cited an instance where a "Reverend gentleman" fervently prayed for the release of Dorr, the election of Polk and Dallas, and the triumph of Democratic principles. To believe in the efficacy of such a prayer implied that "Deity was a Democrat." Now, "if the Almighty was a Democrat, he would perhaps grant the prayer; if not a Democrat he would not grant it." Mr. Hall desired to know what was to be prayed for in the Convention. As for himself, "he would pray as did the man in New Orleans, that God would 'lay low and keep dark,' and let us do the business of the Convention." Prayers in the Convention were, he thought, inappropriate. "There were places where the Almighty could not be approached in a proper spirit--and this was one." Mr. Bailey asked the members who voted against taking papers on the grounds of economy to be consistent and vote against this resolution to have prayers. It would save some two or three hundred dollars. Then, too, he thought that "people were becoming more liberal in [their religious] sentiment. No man could say that he ever opposed another on account of religion; he respected men who were sincerely religious; but he wanted to have his own opinions." Mr. Bailey feared that members might be compelled, under the resolution, "to hear what they were opposed to. This was contrary to the inalienable rights of man. If members did not feel disposed to come, it took away their happiness, contrary to the Declaration of Independence and the principle laid down by Thomas Jefferson, the Apostle of Liberty." Mr. Cutler said that "he had not lived a great while, but long enough not to be afraid of meeting such a question openly." He opposed the resolution and desired the yeas and nays recorded on the motion. Mr. Fletcher "regretted the opposition that he saw, and was unwilling that it should go forth to the world that Iowa refused to acknowledge a God." Mr. Evans did not believe in progression to the exclusion of prayer. He favored "providing a room for those who did not wish to hear prayers." Mr. Hepner opposed the resolution because he thought that it was inconsistent with the principle of religious freedom as set forth in the Bill of Rights. Mr. Shelleday wished to represent the moral and religious feelings of his constituents by supporting the resolution. Mr. Quinton thought that his constituents were as moral as those of Mr. Shelleday. But he "did not believe praying would change the purposes of Deity, nor the views of members of the Convention." "In the name of Heaven," he exclaimed, "don't force men to hear prayers." By a vote of forty-four to twenty-six the resolution was indefinitely postponed. The liberal religious spirit of the pioneers is further evidenced by the principle of toleration which was incorporated into section four of the Bill of Rights. As introduced by the Committee the section provided that "no religious test shall be required as qualification for any office or public trust, and no person shall be deprived of any of his rights, privileges, capacities, or disqualified for the performance of any of his duties, public or private, in consequence of his opinion on the subject of religion." Mr. Grant thought that the report "was meant to cover _everything_." But, to make sure that it did not exclude Atheists from giving testimony in the courts, Mr. Galbraith moved to insert the words "or be rendered incompetent to give testimony in any court of law or equity." Mr. Lowe, of Muscatine, favored leaving the law on this subject as it was; that is, he thought that "Atheists should not be admitted to give testimony" because "there was nothing that such a person could swear by. An oath called upon Deity to witness the truth of what was said, and to withdraw his favor from the person if it was untrue. Atheists consequently could not take an oath." It would be "unsafe" to permit them to testify. Mr. Hempstead wanted to "do away with this inquiring into a man's religious opinions. He desired to keep it out of the Constitution. It was the fear of the penalties of perjury that restrained men from stating what was not true--not future punishment." Mr. Kirkpatrick thought that to refuse to allow Atheists to testify would be an "infringement of the natural rights of man." Mr. Grant said that "he hoped this Convention would take high grounds upon this subject and silence . . . . these inquiries into men's belief, and exclusions for opinion's sake." When the test vote was taken it was found that only ten members of the Convention were willing to deny to Atheists the right to give testimony in the courts. An interesting debate on salaries led to the adoption of section thirty-five, Article IV., of the Constitution which fixed the compensation of the State officers "for the first ten years after the organization of the government." The discussion was provoked by a report from the Committee on State Revenue in which the following salaries were recommended: For Governor, $1000; for Secretary of State, $500; for Treasurer, $400; for Auditor, $700; for Superintendent of Public Instruction, $700; and for Judges of the Supreme Court, $800. Several motions were made which aimed to increase slightly the sums recommended by the Committee; but the bent of the Convention was manifestly in favor of a reduction of salaries all along the line. Sums ranging from $600 to $1200 were suggested for the Governor. Mr. Hooten "thought the salary was about right at $1000. The Governor was rather than else considered as public property, would have to entertain a good deal of company, &c., and should have a pretty liberal salary." Mr. Davidson said that "he came here for low salaries. He did not like $1000, but $1200 was worse." The Convention finally agreed upon $800 as a proper salary for the Governor of the State of Iowa. No cut was made in the sum ($500) reported for the Secretary of State; but the Treasurer's salary was reduced to $300. The Convention was willing that the Judges of the Supreme Court should receive the same pay as the Governor, that is, $800. The Auditor's salary received the most attention. The Committee on State Revenue had recommended $700. "Mr. Grant moved to strike out $700, which would leave the salary blank." Ex-Governor Lucas hoped that the salaries would not be reduced so low that competent men could not afford to accept them. Mr. Chapman "desired to pay a fair price for services rendered, but he was not willing to pay a single dollar for dignity. He did not want to have men paid to live as gentlemen, with no services to perform. . . . . What were the duties of Auditor, that they could not be performed for a salary of $500 or $600? A farmer toiled from the rising of the sun to its going down, and at the end of the year had not perhaps $100;--there were hundreds of men qualified for that office who labored the whole year for less than half of $700. In this country we are all poor, and have to do with but little." Mr. Strong came to the Convention with a "desire for economy, and felt disposed to go for as low salaries as any man; but he thought gentlemen were disposed to reduce them too low." Mr. Hempstead thought that the Convention was "running this thing of economy into the ground." He knew that there were men who would take the offices at almost any salary; but "they would plunder to make it up." Mr. Quinton declared that the services rendered by the Auditor were not worth more than $400. He would "continue to advocate economy in the State offices, whether it was displeasing to some gentlemen or not." Mr. Fletcher supported the recommendation of the Committee on State Revenue because the object was to secure as Auditor a man of "the best business talents." Mr. Hall observed that the proposition to pay "such large salaries to our officers was based upon a misunderstanding of the importance of our little State. We were just commencing to totter, and not to walk." Mr. Harrison said "we were in a youthful condition, and were poor, and we could not afford to pay such salaries as the great and wealthy State of Ohio." Furthermore, "he wanted the officers to share something of the hardships and privations of the citizens. He would not have them gentlemen of leisure, walking about the streets, talking with their friends, &c., with plenty of money in their pockets. An honest man would perform the duties of Auditor as well for $300 as $1000. If he was not honest we did not want him." Mr. Bissell favored a reduction. "He did not want to support government officers at high salaries, to ride about in their coaches and sport gold spectacles. He did not want them paid for giving wine parties, and electioneering the Legislature. They should walk from their residences to their offices, as other citizens." And so the salary of Auditor was fixed at $500. What wonder that Mr. Hempstead "felt disposed to make a motion that no gentleman or man of respectability should be appointed to any office under the Government of the State of Iowa." From the fragments of the debates which were chronicled in the newspapers of the Capital, it is clear that the Convention of 1844, in providing for the exercise of executive power in Iowa, aimed (1) to make the Chief Magistracy a representative institution and (2) to limit the influence of the Governor in legislation. The Committee on the Executive Department, of which the venerable Ex-Governor Lucas was the chairman, reported in favor of vesting the supreme executive power in "a Governor, who shall hold his office for four years." A Lieutenant Governor "was to be chosen at the same time and for the same term." Furthermore, section five of the report provided that "no person shall be eligible to the office of Governor or Lieutenant Governor more than eight years in any term of twelve." Mr. Chapman made a motion to strike out the provisions relative to a Lieutenant Governor, "which motion he enforced upon the principle of economy, and the non-necessity of the office." But the Convention refused to take a step so radical. Mr. Langworthy moved to strike out _four_ and insert _two_ "as the term for which the Governor should hold his office." This was "to test whether any officer in the State of Iowa was to hold his office more than two years." Mr. Langworthy "wanted the whole government to be changed once in two years." His motion prevailed. On the motion of Mr. Peck section five of the report, which aimed to prevent the Governor and Lieutenant Governor from succeeding themselves in office more than once in twelve years, was stricken out. The question of an executive veto on legislation naturally received considerable attention, since the administration of Lucas was still fresh in the minds of many members of the Convention. The Committee on the Legislative Department had reported a form of executive veto which was so limited that it could be passed over by an ordinary majority in the two branches of the General Assembly. Mr. Peck favored a two-thirds majority of the members present. But Mr. Hall moved to strike out the whole section and said that "in making this Constitution he wished to throw off the trammels of fashion and precedent. He had so pledged himself to his constituents. This veto power was a trammel, and an unnecessary restraint on the freedom of legislation. The law of progress required that it should be abolished." Mr. Bailey "thought the veto power was a valuable one; it was the people's power . . . . The Governor was more the representative of the people, than the Representatives themselves. The Representatives were chosen by sections, and represented local interests, and they might continue to pass bad laws. But the Governor had no local feelings." Mr. Peck said that "the veto power was a qualified negative to prevent hasty and ill-advised legislation." He declared that the executive veto was a wholesome remedy for over-legislation. "It was a Democratic feature of any Constitution." Ex-Governor Lucas took part in the discussion. "We were," he said, "engaged in making a Constitution to protect the rights of the people. The veto was one of the instruments that had been used to defend the people's rights . . . . It might have been exercised imprudently at times, but that was not a good argument against the power." Mr. Hall discussed the question at length. "Gentlemen," he said, "supposed that the Legislature might be corrupt--he would suppose on the other hand, that the Governor might he corrupt, and his supposition was as good as theirs. Some gentlemen were afraid of the tyranny of the representatives--he would suppose that the Governor would be the tyrant; or he would suppose that the Governor would combine with the Legislature, and they would all be corrupt and tyrannical together. A number of persons were not so liable to corruption and combination as a single individual;--just as numbers increased the probability of corruption decreased." He declared that "there was no need of the power in this Territory." The Convention finally agreed upon the form of the limited executive veto as provided for in the Federal Constitution. Not even the Judiciary was spared from the influence of Western Democracy as it rose up and asserted itself in the Convention of 1844. The day of executive appointment and life tenure of judges had passed or was passing. The Committee on the Judiciary recommended that "the Judges of the Supreme Court and District Court shall be elected by the joint vote of the Senate and House of Representatives and hold their offices for six years;" but a minority report, introduced by Mr. Fletcher, proposed that all of the judges be elected by the qualified voters of the State. In discussing this question the Convention desired to follow the wishes of the people; but it was not known that the people themselves really desired to elect the Judges. On the other hand there is no evidence that anyone favored executive appointment. So the question before the Convention was: Shall the Judges be elected by the people or shall they be chosen by the General Assembly? Mr. Hempstead favored direct election by the people on the assumption "that in a Republican or Democratic government the people were sovereign, and all power resided in them." He did not believe that the influence of politics would be worse in the election of Judges by the people than in the election of members of the General Assembly. "Joint ballot," he declared, "was one of the most corrupt methods of election ever devised." Mr. Bailey did not doubt "the capacity of the people to elect their Judges;" but he thought that "there was real danger in the Judges becoming corrupt through political influences. They were liable to form partialities and prejudices in the canvass, that would operate on the bench." He had "no objection to the people electing the Judges; but he did not think they desired the election--they had never asked to have it." Ex-Governor Lucas said "the question would seem to be, whether there was any officer in the government whose duties were so sacred that they could not be elected by the people. All officers were servants of the people, from the President down." He repudiated the idea that the people were not capable of electing their own servants. Mr. Quinton supported the proposition to elect the Judges, since "this was said to be an age of progress." In his opinion "the ends of Justice would be better served by elections by the people than by the Legislature." Mr. Kirkpatrick declared that the selection of Judges by the General Assembly was "wrong both in principle and in policy." He was opposed to "voting by proxy." He believed that "we should choose our Judges ourselves and bring them often to the ballot box." Mr. Fletcher "came pledged to go for the election of Judges by the people." He believed that "the surest guaranty, which could be had for the fidelity and good conduct of all public officers, was to make them directly responsible to the people." The outcome of the discussion was a compromise. The Judges of the Supreme Court were to be named by the General Assembly; but the Judges of the District Court were to be elected by the people. That the pioneers of Iowa, including the members of the Convention of 1844, were Democratic in their ideals is certain. They believed in Equality. They had faith in Jeffersonianism. They clung to the dogmas of the Declaration of Independence. They were sure that all men were born equal, and that government to be just must be instituted by and with the consent of the governed. Such was their professed philosophy. Was it universally applicable? Or did the system have limitations? Did the Declaration of Independence, for example, include negroes? The attitude of the Convention on this perplexing problem was perhaps fairly represented in the report of a Select Committee to whom had been referred "a petition of sundry citizens praying for the admission of people of color on the same footing as white citizens." This same Committee had also been instructed to inquire into the propriety of a Constitutional provision prohibiting persons of color from settling within the State. In the opening paragraph of their remarkable report the Committee freely admitted (1) "that all men are created equal, and are endowed by their Creator with inalienable rights," and (2) that these rights are "as sacred to the black man as the white man, and should be so regarded." At the same time they looked upon this declaration as "a mere abstract proposition" which, "although strictly true when applied to man in a state of nature, . . . . becomes very much modified when man is considered in the artificial state in which government and society place him." The Committee then argued that "government is an institution or an association entered into by man, the very constitution of which changes or modifies to a greater or less extent his natural rights. Some are surrendered others are modified . . . . In forming or maintaining a government it is the privilege and duty of those who are about to associate together for that purpose to modify and limit the rights or wholly exclude from the association any and every species of persons who would endanger, lessen or in the least impair the enjoyment of these rights. We have seen that the application of this principle limits the rights of our sons, modifies the privileges of our wives and daughters, and would not be unjust if it excluded the negro altogether.--'Tis the party to the compact that should complain, not the stranger. Even hospitality does not sanction complaint under such circumstances. True, these persons may be unfortunate, but the government is not unjust." Thus the problem of negro citizenship was not one of abstract right, but must be settled on grounds of expediency. "Would the admission of the negro as a citizen tend in the least to lessen, endanger or impair the enjoyment of our governmental institutions?" The answer of the Committee reads as follows: "However your committee may commiserate with the degraded condition of the negro, and feel for his fate, yet they can never consent to open the doors of our beautiful State and invite him to settle our lands. The policy of other States would drive the whole black population of the Union upon us. The ballot box would fall into their hands and a train of evils would follow that in the opinion of your committee would be incalculable. The rights of persons would be less secure, and private property materially impaired. The injustice to the white population would be beyond computation. There are strong reasons to induce the belief that the two races could not exist in the same government upon an equality without discord and violence, that might eventuate in insurrection, bloodshed and final extermination of one of the two races. No one can doubt that a degraded prostitution of moral feeling would ensue, a tendency to amalgamate the two races would be superinduced, a degraded and reckless population would follow; idleness, crime and misery would come in their train, and government itself fall into anarchy or despotism. Having these views of the subject your committee think it inexpedient to grant the prayer of the petition." Nor was it thought expedient by the Committee to introduce an article into the Constitution which would exclude altogether persons of color from the State, notwithstanding the fact that "the people of Iowa did not want negroes swarming among them." Even Mr. Langworthy, who had been instructed by his constituents "to get something put into the Constitution by which negroes might be excluded from the State," felt that the matter could safely be left with the General Assembly. Mr. Grant thought that an exclusion clause in the Constitution would "endanger our admission into the Union." Although the report was laid on the table, it nevertheless represented the dominant opinion then prevalent in Iowa. Our pioneer forefathers believed that the negroes were men entitled to freedom and civil liberty. But more than a score of years had yet to elapse before there was in their minds no longer "a doubt that all men [including the negroes] are created free and equal." When the delegates were elected to the Convention of 1844 the people of the Territory were still suffering from the effects of over-speculation, panic, and general economic depression. Many of them still felt the sting of recent bank failures and the evils of a depreciated currency. Hence it is not surprising to learn from the debates that not a few of the delegates came to the Convention instructed to oppose all propositions which in any way favored corporations, especially banking corporations. The opposition to banks and bank money was not local; it was National. The bank problem had become a leading party issue. Democrats opposed and Whigs generally favored the banks. It was so in Iowa, where the agitation was enlivened by the presence of the "Miners' Bank of Du Buque." This institution, which was established in 1836 by an act of Congress, had been the local storm center of the bank question. Prior to 1844 it had been investigated four times by the Legislative Assembly of the Territory. In the Convention a minority as well as a majority report was submitted from the Committee on Incorporations. The majority report provided: (1) that one bank may be established with branches, not to exceed one for every six counties; (2) that the bill establishing such bank and branches must be (a) passed by a majority of the members elected to both houses of the General Assembly, (b) approved by the Governor, and (c) submitted to the people for their approval or rejection; (3) that "such bank or branches shall not have power to issue any bank note or bill of a less denomination than ten dollars;" (4) that "the stockholders shall be liable respectively, for the debts of said bank, and branches;" and (5) that "the Legislative Assembly shall have power to alter, amend, or repeal such charter, whenever in their opinion the public good may require it." The same majority report provided further: (1) that "the assent of two-thirds of the members elected to each house of the Legislature shall be requisite to the passage of every law for granting, continuing, altering, amending or renewing any act of Incorporation;" (2) that no act of incorporation shall continue in force for more than twenty years; (3) that the personal and real property of the individual members of a corporation shall be liable for the debts of such corporation; and (4) that "the Legislative Assembly shall have power to repeal all acts of incorporation by them granted." The minority report, which was signed by two members of the Committee, provided that "no bank or banking corporation of discount, or circulation, shall ever be established in this State." In the discussion that followed the introduction of these reports the Whig members of the Convention were inclined to keep restrictions out of the Constitution and leave the whole question of establishing banks to the General Assembly. The Democrats were not united. The more radical supported the minority report; others favored the establishment of banks well guarded with restrictions. Mr. Hempstead said that he was opposed to all banks as a matter of principle. He pointed out that there were three kinds of banks--banks of deposit, banks of discount, and banks of circulation. "To this last kind he objected. They were founded in wrong, and founded in error." He declared that such corporations should be excluded altogether from the State. Indeed, he said that "if the whole concern--banks, officers and all--could be sent to the penitentiary he would be very glad of it." Mr. Quinton thought that "the whole concern of Banks, from big A down, were a set of swindling machines, and now was the time for the people of Iowa to give an eternal quietus to the whole concern." Mr. Ripley declared that "Banks had always been a curse to the country . . . . He believed Banks to be unconstitutional, and oppressive upon the laboring classes of the community." Mr. Bailey was an anti-Bank man; "but he knew many Democrats who were in favor of Banks under proper restrictions." Mr. Hall said that "Banking was a spoiled child; it had been nursed and petted till it had become corrupt." He objected to banking "because it conferred privileges upon one class that other classes did not enjoy." He believed that the people would find that "a bank of earth is the best bank, and the best share a plough-share." Mr. Gehon wanted to put his "feet upon the neck of this common enemy of mankind." Ex-Governor Lucas, who represented the conservative Democrats, said that this was not a party issue but rather a question of expediency. He was in favor of leaving it to the Legislature and the people. Mr. Lowe said that "the truth was, this matter, like all other questions of internal policy, should be left where all the other States of the Union have left it, to the sovereign will of a free and independent people." Mr. Hawkins said that "the Whigs were in favor of leaving this matter to the action of future Legislatures and to the people. When a proposition was made for a charter, let the details be decided by them with all the lights before them at that time." As finally agreed to in the Convention, article nine of the Constitution, which dealt with corporations, contained the following provisions. First, no act of incorporation shall continue in force for more than twenty years without being re-enacted by the General Assembly. Secondly, the personal and real property of the members of a corporation shall at all times be liable for the debts of such corporation. Thirdly, the General Assembly "shall create no bank or banking institution, or corporation with banking privileges" without submitting the charter to a vote of the people. Fourthly, the General Assembly shall have power to repeal all acts of incorporation by them granted. Fifthly, the property of the inhabitants of the State shall never be used by any incorporated company without the consent of the owner. Sixthly, the State shall not become a stockholder in any bank or other corporation. In this form the question of banks and corporations was submitted to the people. On Friday morning, November the first, the Constitutional Convention of 1844 adjourned _sine die_ after a session of just twenty-six days. XI THE CONSTITUTION OF 1844 The Constitution of 1844 as submitted by the Convention to Congress and to the people of the Territory of Iowa contained thirteen articles, one hundred and eight sections, and over six thousand words. Article I. on "Preamble and Boundaries" acknowledges dependence upon "the Supreme Ruler of the Universe" and purports to "establish a free and independent government" in order "to establish justice, ensure tranquility, provide for the common defense, promote the general welfare, secure to ourselves and our posterity, the rights of life, liberty, and the pursuit of happiness." Article II. as the "Bill of Rights" declares that "all men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness." All political power is "inherent in the people;" for their "protection, security, and benefit" government is instituted; and they, the people, have "the right at all times, to alter, or reform the same, whenever the public good may require it." Following these classic political dogmas of the American Revolution is a rather exhaustive enumeration of the fundamental rights of the individual, which at various times and in various ways had found expression in the state papers and Constitutions of England and America, and which together constitute the domain of Anglo-Saxon liberty and freedom. Article III. defines the "Right of Suffrage" by limiting the exercise thereof to white male citizens of the United States, of the age of twenty-one years, who shall have been residents of the State six months next preceding the election, and of the county in which they claim a vote thirty days. Article IV. proclaims the theory of the separation of powers in sweeping terms, and prescribes the constitution of the law-making department. Herein the legislative authority was vested in a General Assembly, which was organized on the bicameral plan. The members of the House of Representatives were to be chosen for two years, those of the Senate for four years. The regular sessions of the General Assembly were to be held biennially. Article V. on the "Executive Department" provides that the "Supreme Executive power shall be vested in a Governor, who shall hold his office for two years; and that a Lieutenant Governor shall be chosen at the same time and for the same term." The Governor must be a citizen of the United States and have attained the age of thirty years. Article VI. organizes the "Judicial Department." It provides for a Supreme Court consisting of "a Chief Justice and two Associates," to be chosen by the General Assembly for a term of four years. The District Court was to "consist of a Judge, who shall reside in the district assigned him by law," and be elected by the people for the same term as the Judges of the Supreme Court. Article VII. provides that the "Militia" shall be composed of "all able bodied white male persons between the ages of eighteen and forty-five years," except such persons as are or may be especially exempted by law. All details relative to organizing, equipping, and disciplining the militia were left to the General Assembly. Article VIII. on "Public Debts and Liabilities" prohibited the General Assembly from contracting debts and obligations which in the aggregate would exceed one hundred thousand dollars. Article IX. placed restrictions upon banking and other business corporations. Article X. deals with "Education and School Lands." It provides for a "Superintendent of Public Instruction" who shall be chosen by the General Assembly. It directs the General Assembly to provide for a system of common schools. It declares also that the General Assembly "shall encourage, by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement." Article XI. outlines a system of local government which includes both the county and the township organization. The details are left to the General Assembly. Article XII. provides for "Amendments to the Constitution." In the case of partial revision of the Constitution, the specific amendment must be passed by two successive General Assemblies and ratified by the people. When it is desired to have a total revision of the fundamental law, the General Assembly submits the question of a Constitutional Convention to a direct vote of the people. Article XIII. provides a "Schedule" for the transition from the Territorial to the State organization. From the view-point of subsequent events the most significant provision of the Constitution of 1844 was the one which defined the boundaries of the future State. There is, however, no evidence that the members of the Convention foresaw the probability of a dispute with Congress on this point, although Governor Chambers in his message of December, 1843, had pointed out its possibility should the people of Iowa assume to give boundaries to the State without first making application to Congress for definite limits. It was on the question of boundaries that the Constitution of 1844 was wrecked. In the Convention the regular standing Committee on State Boundaries reported in favor of certain lines which were in substance the boundaries recommended by Governor Lucas in his message of November, 1839. Indeed, it is altogether probable that the recommendations of Robert Lucas were made the basis of the Committee's report. This inference is strengthened by the fact that the illustrious Ex-Governor was a member of the Committee. It will be convenient to refer to the boundaries recommended by the Committee as the _Lucas boundaries_. The Lucas boundaries were based upon the topography of the country as determined by rivers. On the East was the great Mississippi, on the West the Missouri, and on the North the St. Peters. These natural boundaries were to be connected and made continuous by the artificial lines of the surveyor. As to the proposed Eastern boundary there could be no difference of opinion; and it was generally felt that the Missouri river should determine the Western limit. On the South the boundary must necessarily be the Northern line of the State of Missouri. But the exact location of this line had not been authoritatively determined. During the administration of Lucas it was the subject of a heated controversy between Missouri and Iowa which at one time bordered on armed hostility. The purpose of the Convention in 1844 was not to settle the dispute but to refer to the line in a way which would neither prejudice nor compromise the claims of Iowa. The discussion of the Northern boundary was, in the light of subsequent events, more significant. As proposed by the Committee the line was perhaps a little vague and indefinite since the exact location of certain rivers named was not positively known. Some thought that the boundary proposed would make the State too large. Others thought that it would make the State too small. Mr. Hall proposed the parallel of forty-two and one-half degrees of North latitude. Mr. Peck suggested the parallel of forty-four. Mr. Langworthy, of Dubuque, asked that forty-five degrees be made the Northern limit. Mr. Langworthy's proposition met with considerable favor among the people living in the Northern part of the Territory who desired to increase the size of the State by including a considerable tract North of the St. Peters. Mr. Chapman suggests the existence of sectional feeling in the matter of boundaries when he says, in reply to Mr. Langworthy's argument, that "it was a kind of creeping up on the North which was not good faith to the South." On October 14 the report of the regular Committee on State Boundaries was referred to a Select Committee consisting of representatives from the twelve electoral districts. But this Committee made no changes in the original report except to make the Northern boundary a little more definite. As finally adopted by the Convention and incorporated into the Constitution of 1844, the boundaries of the State were as follows: "Beginning in the middle of the main channel of the Mississippi river opposite the mouth of the Des Moines river; thence up the said river Des Moines, in the middle of the main channel thereof, to a point where it is intersected by the Old Indian Boundary line, or line run by John C. Sullivan in the year 1816; thence westwardly along said line to the 'Old Northwest corner of Missouri;' thence due west to the middle of the main channel of the Missouri river; thence up in the middle of the main channel of the river last mentioned to the mouth of the Sioux or Calumet river; thence in a direct line to the middle of the main channel of the St. Peters river, where the Watonwan river (according to Nicollet's map) enters the same; thence down the middle of the main channel of said river to the middle of the main channel of the Mississippi river; thence down the middle of the main channel of said river to the place of beginning." In accordance with the act of the Legislative Assembly of February 12, 1844, and section six of the "Schedule" it was provided that the new Constitution, "together with whatever conditions may be made to the same by Congress, shall be ratified or rejected by a vote of the qualified electors of this Territory at the Township elections in April next." And the General Assembly of the State was authorized to "ratify or reject any conditions Congress may make to this Constitution after the first Monday in April next." At the same time it was made the duty of the President of the Convention to transmit a copy of the Constitution, along with other documents thereto pertaining, to the Iowa Delegate at Washington, to be by him presented to Congress as a request for the admission of Iowa into the Union. For such admission at an early day the Convention, as memorialists for the people of the Territory, confidently relied upon "the guarantee in the third article of the treaty between the United States and France" of the year 1803. It now remained for Congress and the people of the Territory to pass judgment upon the Constitution of 1844. XII THE CONSTITUTION OF 1844 SUBMITTED TO CONGRESS The second session of the Twenty-Eighth Congress opened on Monday, December 2, 1844. On December 9, Senator Tappan presented to the Senate the Constitution which had been framed by the Iowa Convention of 1844. It was referred at once to the Committee on the Judiciary. Three days later Augustus C. Dodge, Delegate from the Territory of Iowa, laid before the House of Representatives a copy of the same instrument together with an ordinance and a memorial from the Iowa Convention. Here the documents were referred to the Committee on Territories. On January 7, 1845, through Mr. Aaron V. Brown, the Committee on Territories reported a bill for the admission of Iowa and Florida into the Union. This bill was read twice and referred to the Committee of the Whole House on the State of the Union, wherein it was considered on the three days of February 10, 11, and 13. It passed the House of Representatives on February 13, 1844, by a vote of one hundred and forty-four to forty-eight. The day after its passage in the House of Representatives the bill was reported to the Senate. Here it was referred to the Committee on the Judiciary, from which it was reported back to the Senate without amendment on February 24. The Senate considered the measure on March 1, and passed the same without alteration by a vote of thirty-six to nine. On March 3, 1845, the act received the signature of President Tyler. The debate on the bill for the admission of Iowa under the Constitution of 1844 is of more than local interest since it involved a consideration of the great question of National Politics in its relation to the growth of the West and the admission of new States. When Iowa applied for State organization in 1844, Florida had been waiting and pleading for admission ever since the year 1838. The reason for this delay was very generally understood and openly avowed. States should be admitted not singly but in pairs. Florida was waiting for a companion. And so in 1844 it fell to Iowa to be paired with the peninsula. The principle involved was not new; but never before had two States been coupled in the same act of admission. The object sought was plainly the maintenance of a _balance of power_ between the North and the South. But back of the principle of the balance of power, and for the preservation of which that principle was invoked, stood Slavery. The institution of free labor in the North must be balanced by the institution of slave labor in the South, since both must be preserved. And so the admission of Iowa and Florida had to be determined in reference to this all-devouring question of National Politics. Upon examination it was found that the proposed Constitution of Florida not only sanctioned the institution of Slavery, but it positively guaranteed its perpetuation by restraining the General Assembly from ever passing laws under which slaves might be emancipated. On the other hand the Constitution of Iowa, although it did not extend the privilege of suffrage to persons of color, provided that "neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State." Now it so happened that the opposing forces of slave labor and free labor, of "State Rights" and "Union," came to an issue over the boundaries of the proposed State of Iowa. In the bill for admission, as reported by the House Committee on Territories, the boundaries asked for by the Iowa Convention in the Constitution submitted by them were retained without alteration. But Mr. Duncan, of Ohio, had other limits to propose. He would have the new State of Iowa "bounded by the Mississippi on the East, by a parallel of latitude passing through the mouth of the Mankato, or Blue Earth river, on the North, by a meridian line running equidistant from the seventeenth and eighteenth degrees of longitude West from Washington on the West, and by the Northern boundary of the Missouri on the South." Mr. Duncan pointed out that these were the boundaries proposed by Nicollet in the report which accompanied the publication in January, 1845, of his map of the basin of the upper Mississippi. He preferred the _Nicollet boundaries_ because (1) they were "the boundaries of nature" and (2) at the same time they left sufficient territory for the formation of two other States in that Western country. On the other hand, Mr. Brown, Chairman of the Committee on Territories, said that the question of boundaries had been carefully investigated by his Committee, "and the conclusion to which they had come was to adhere to the boundary asked for by the people of Iowa, who were there, who had settled the country, and whose voice should be listened to in the matter." Mr. Belser, of Alabama, was opposed to the Duncan amendment since it "aimed to admit as a State only a portion of Iowa at this time. This he would have no objection to, provided Florida is treated in the same way. He was for receiving both into the Confederacy, with like terms and restrictions. If Iowa is to come in without dismemberment, then let Florida enter in like manner; but if Iowa is divided, then let Florida be divided also." Mr. Vinton, of Ohio, was the most vigorous champion of the Duncan amendment. He stood out firmly for a reduction of the boundaries proposed by the Iowa Convention because the country to the North and West of the new State, "from which two other States ought to be formed," would be left in a very inconvenient shape, and because the formation of such large States would deprive the West of "its due share of power in the Senate of the United States." Mr. Vinton was "particularly anxious that a State of unsuitable extent should not be made in that part of the Western country, in consequence of the unwise and mistaken policy towards that section of the Union which has hitherto prevailed in forming Western States, by which the great valley of the Mississippi has been deprived, and irrevocably so, of its due share in the legislation of the country." As an equitable compensation to the West for this injustice he would make "a series of small States" on the West bank of the Mississippi. Furthermore, Mr. Vinton did not think it politic to curtail the power of the West in the Senate of the United States by the establishment of large States, since in his opinion "the power of controlling this government in all its departments may be more safely intrusted to the West than in any other hands." The commercial interests of the people of the West were such as to make them desirous of protecting the capital and labor both of the North and the South. Again, he declared that if disunion should ever be attempted "the West must and will rally to a man under the flag of the Union." "To preserve this Union, to make its existence immortal, is the high destiny assigned by Providence itself to this great central power." The arguments for restriction prevailed, and the Duncan amendment, which proposed to substitute the _Nicollet boundaries_ for the _Lucas boundaries_, passed the House of Representatives by a vote of ninety-one to forty. In the Senate the bill as reported from the House was hurried through without much debate. Here the question of boundaries seems to have received no consideration whatever. There were, however, strong objections in some quarters to coupling Iowa with Florida in the matter of admission. Senator Choate, of Massachusetts, called attention to the fact that this was the first instance in the history of the admission of States where it was proposed to admit two States by the same act. Under the circumstances he could welcome Iowa into the Union, but he could not give his hand to Florida. It could not be argued that Florida must be admitted to balance Iowa, since the admission of Texas was already more than a balance for the northern State. However appropriate it might have been at an earlier day to pair Florida with Iowa, it ought not to be thought of at this time. For, since the introduction of the bill, "we have admitted a territory on the southwest much larger than Iowa and Florida together--a territory that may be cut up into forty States larger than our small States, or five or six States as large as our largest States. Where and how is the balance to be found by the North and East for Texas? Where is it to be found but in the steadfast part of America? If not there, it can be found nowhere else. God grant it may be there! Everything has been changed. An empire in one region of the country has been added to the Union. Look east, west, or north, and you can find no balance for that." Senator Evans touched upon the great issue when he proposed an amendment which provided that so far as Florida was concerned the bill should not take effect until the people had removed from their Constitution certain restrictions on the General Assembly relative to the emancipation of slaves and the emigration and immigration of free negroes or other persons of color. He was opposed to discriminations against free persons of color. Why, then, retorted a Senator from the South, do you not direct your artillery against the Constitution of Iowa which does not allow a colored person to vote? No good reason had been urged showing why Iowa should not be admitted into the Union. All of the essential qualifications for statehood were present--a large and homogeneous population, wealth, _morale_, and republican political institutions. Congress did not pass an adverse judgment on the Constitution of 1844, since that instrument provided for a government which was Republican in form and satisfactory in minor details. Only one change was demanded, and that was in relation to the proposed boundaries. Here Congress insisted upon the _Nicollet boundaries_ as incorporated in the act of admission of March 3rd, 1845, in opposition to the _Lucas boundaries_ as provided for in the Constitution of 1844. XIII THE CONSTITUTION OF 1844 DEBATED AND DEFEATED BY THE PEOPLE While Congress was discussing the boundaries of Iowa and carefully considering the effect which the admission of the new State might possibly have upon matters of National concern, the Constitution of 1844 was being subjected to analysis and criticism throughout the Territory. Moreover, it is interesting to note that the only provision of the Constitution which was held up and debated in Congress was the very one which was generally accepted by the people of the Territory without comment. Whigs and Democrats alike were satisfied with the _Lucas boundaries_. Nor did the people of Iowa at this time think or care anything about the preservation of the "balance of power." Their adoption of, and adherence to, the _Lucas boundaries_ was founded upon local pride and commercial considerations. Opposition to the Constitution of 1844 was at the outset largely a matter of partisan feeling. The Whigs very naturally opposed the ratification of a code of fundamental law which had been formulated by a Democratic majority. Then, too, they could not hope for many of the Federal and State offices which would be opened to Iowans after the establishment of Commonwealth organization. And so with genuine partisan zeal they attacked the instrument from Preamble to Schedule. Nothing escaped their ridicule and sarcasm. By the Democratic press they were charged with "an intent to keep Iowa out of the Union, so that her two Senators shall not ensure the vote of the United States Senate to Mr. Polk at the next session." But the Whigs were not altogether alone in their opposition to the proposed Constitution, not even during the early weeks of the campaign. There was some disaffection among the Democrats themselves, that is, among the radicals who thought that the new code was not sufficiently Jeffersonian. The editor of the _Dubuque Express_, for example, was severe in his criticisms, but he intimated that he would vote for the Constitution in the interests of party discipline. The _Bloomington Herald_, on the other hand, although a strong organ of the Democracy, emphatically declared through its editorial columns that "admission under the Constitution would be a curse to us as a people." As a party, however, the Democrats favored the Constitution of 1844, defended its provisions, and urged its adoption by the people. They held that as a code of fundamental law it was all that could be expected or desired, and with a zeal that equaled in every way the partisan efforts of the Whigs they labored for its ratification at the polls. An examination of the arguments as set forth in the Territorial press reveals two classes of citizens who opposed ratification. First, there were those who were hostile to the Constitution because they did not want State government. Secondly, there were others who could not subscribe to the provisions and principles of the instrument itself. The out-and-out opponents of State government continued to reiterate the old argument of "Economy." They would vote against the Constitution in order to prevent an increase in the burdens of taxation. This argument of itself could not possibly have defeated ratification, since there was at this time an overwhelming majority who desired admission into the Union. And yet the plea of economy (which always appealed strongly to the pioneers) undoubtedly contributed somewhat to the defeat and rejection of the Constitution of 1844. Prior to the first of March, 1845, opposition to ratification was expressed chiefly in objections to the proposed Constitution. As a whole that instrument was characterized as "deficient in style, manner, and matter, and far behind the spirit of this enlightened age." It could not even be called a code of fundamental law, since it contained legislative as well as Constitutional provisions. It confounded statute law with Constitutional law. In its detailed provisions and clauses the Constitution of 1844 was still less satisfactory to the opponents of ratification. They seemed to see everywhere running through the whole instrument erroneous principles, inexpedient provisions, and confused, inconsistent, and bungling language. They declared that the legislative, executive, and judicial departments of the government were not sufficiently separate and distinct. The principle of the separation of powers was clearly violated (1) by giving to the Executive the power of veto, and (2) by allowing the Lieutenant Governor to participate in the debates of the Senate. Nor were the popular powers--namely, the powers of sovereignty--always differentiated from the delegated powers--or, the powers of government. The Constitution was roundly abused because it provided for the election of the Judges of the inferior courts by the people. To the minds of the critics the office of Judge was too sacred to be dragged into partisan politics and through corrupting campaigns. Judges ought not to be responsible to the people, but solely to their own consciences and to God. Likewise, it was contrary to the principles of efficient and harmonious administration to provide for the popular election of the Secretary of State, Auditor of Public Accounts, and Treasurer. Such positions should be filled by executive appointment. Again, the Constitution was attacked because it provided for biennial instead of annual elections. The salaries fixed for State officers were "niggardly and insufficient." The method prescribed for amending the Constitution was altogether too tedious and too uncertain. The provisions relative to corporations were too narrow, since they restrained the General Assembly from providing for internal improvements. By requiring all charters of banks and banking institutions to be submitted to a direct vote of the people, the Constitution practically prevented the organization and establishment of such institutions. Finally, objections were made to that section of the Bill of Rights which provided that no evidence in any court of law or equity should be excluded in consequence of the religious opinions of the witness. To some it was horrifying to think of admitting the testimony of non-believers and Atheists. Such were the arguments against ratification which were advanced by the opponents of the Constitution of 1844. However, that instrument was not so defective as pictured, since back of all objections and all opposition was the mainspring of partisan politics. The Whigs were bent on frustrating the program of the Democrats. Were they able to defeat the Constitution on the issue of its imperfections? No, not even with the assistance of the radical Democrats! But fortunately for the cause of the opposition a new and powerful objection to ratification appeared in the closing weeks of the campaign. The news that Congress had, by the act of March 3, 1844, rejected the boundaries prescribed by the Iowa Convention reached the Territory just in time to determine the fate of the Constitution of 1844. A close examination of this act of Congress revealed the fact that the fourth section thereof conditioned the admission of Iowa upon the acceptance of the _Nicollet boundaries_ "by a majority of the qualified electors at their township elections, in the manner and at the time prescribed in the sixth section of the thirteenth article of the constitution adopted at Iowa City the first day of November, anno Domini eighteen hundred and forty-four, or by the Legislature of said State." Moreover, it was found that the provisions of the Constitution of 1844 just quoted read as follows: "This constitution, together with whatever conditions may be made to the same by Congress, shall be ratified or rejected by a vote of the qualified electors of this Territory at the township elections in April next, in the manner prescribed by the act of the Legislative Assembly providing for the holding of this Convention: _Provided, however_, that the General Assembly of this State may ratify or reject any conditions Congress may make to this Constitution after the first Monday of April next." In the light of these provisions it appeared to the people of Iowa that a vote cast for the Constitution would be a vote for the Constitution as modified by the act of Congress. This view was altogether plausible since no provision had been made for a separate ballot on the conditions imposed by Congress. And so it was thought that a ratification of the Constitution would carry with it an acceptance of the _Nicollet boundaries_, while a rejection of the Constitution would imply a decided stand in favor of the _Lucas boundaries_. Those who during the fall and winter had opposed ratification now renewed their opposition with augmented zeal. The Whigs turned from their petty attacks upon the provisions of the Constitution to denounce the conditions imposed by Congress. They declared that the Constitution must be defeated in order to reject the undesirable _Nicollet boundaries_. The boundary question now led a considerable number of the more moderate Democrats to oppose ratification. Prominent leaders of the party took the stump and declared that it would be better to reject the Constitution altogether than to accept the limited boundaries proposed by Congress. They declared that the "natural boundaries" as prescribed by the Constitution should not be curtailed, and called upon all good Democrats to vote down their own Constitution. Many, however, continued to support ratification, believing that the boundaries imposed by the act of Congress were the best that could be obtained under the existing conditions. Augustus Dodge, the Iowa Delegate in Congress, took this stand. When the Constitution of 1844 was before Congress Mr. Dodge had stood firmly for the boundaries as proposed in that instrument. But on the day after the act of March 3, 1845, had been signed by the President, he addressed a letter to his constituents in Iowa advising them to ratify the Constitution and accept the _Nicollet boundaries_ as prescribed by Congress. Mr. Dodge thought that the State would still be large enough. He knew that the country along the Missouri river was fertile, but "the dividing ridge of the waters running into the Mississippi and Missouri rivers, called the 'Hills of the Prairie,' and which has been excluded from our new State, is barren and sterile." He called attention to the fact that the boundaries prescribed by Congress were those suggested by Mr. Nicollet, a United States Geologist, "who had accurately and scientifically examined the whole country lying between the Mississippi and Missouri rivers." Then he pointed out the influences which operated in reducing the boundaries, and concluded by saying: "Forming my opinion from extensive inquiry and observation, I must in all candor inform you that, whatever your decision on the first Monday in April next may be, we will not be able hereafter under any circumstances to obtain _one square mile more_ for our new State than is contained within the boundaries adopted by the act of Congress admitting Iowa into the Union." From the returns of the election it was evident that Mr. Dodge's constituents either did not take him seriously or were sure that he was mistaken in his conclusions. The Constitution of 1844 was rejected by a majority of 996 votes. The result of the election was such as to "astound the friends of the Constitution and to surprise everybody, both friend and foe." Those who had labored for ratification throughout the campaign abused the Whigs for opposing so perfect an instrument, censured the Convention for submitting the Constitution to Congress before it had been ratified by the people, and preferred general charges of misrepresentation. The friends of the Constitution clamored loudly for a resubmission of the code of fundamental law as it had come from the Convention, so that the people might have an opportunity to pass upon it free from conditions and without misrepresentation. Within a few weeks the seventh Legislative Assembly of the Territory was to meet in regular session. The members would be asked to give the Constitution of 1844 another chance. XIV THE CONSTITUTION OF 1844 REJECTED A SECOND TIME On Monday the fifth day of May, 1845, the Legislative Assembly of the Territory met in regular session. Three days later a message from Governor Chambers was presented and read to the members, whereby they were informed that the vote in April had certainly resulted in the rejection of the Constitution. "And," continued the Governor, "there is reason to believe that the boundary offered us by Congress had much influence in producing that result." Believing that the rejection of the Constitution by the people called for some action on the part of the Assembly, Governor Chambers proposed and recommended "that the question be again submitted to the people, whether or not they will at this time have a Convention." But a majority of the Assembly were in favor of re-submitting the Constitution of 1844 as it had come from the hands of the Convention. A bill to re-submit was accordingly introduced and hurried through to its final passage. A formal and solemn protest from the minority, signed by nine members and entered on the journal of the House of Representatives, set forth the leading objections to re-submission. 1. The Assembly had no delegated power to pass such a measure. 2. The act was designed to control rather than ascertain public sentiment. 3. The Constitution of 1844 had been _deliberately_ rejected by the people. 4. No memorial indicating a change of opinion had been sent up by the people since the election. 5. In the April election the people had not been misled; they voted intelligently; and their ballots were cast against the Constitution itself. The conditions imposed by Congress "doubtless had influence in different sections of the Territory, both for and against it. What was lost on the North and South by the change, was practically made up by the vote of the center where the Congressional boundaries are more acceptable than those defined in the Constitution." 6. The question of territory being a "minor consideration," the Constitution was rejected principally on account of its inherent defects. 7. Under no consideration should the Constitution of 1844 be again submitted to the people since it embodied so many objectionable provisions. Although the bill for re-submission had passed both branches of the Assembly by a safe majority, Governor Chambers did not hesitate to withhold his assent. On June 6 he returned it to the Council. But it is difficult to ascertain the precise grounds upon which the Governor withheld his approval, since his message deals with conditions rather than objections. In the first place he reviewed the conditions under which the Constitution of 1844 had at the same time been submitted to Congress and to the people of the Territory. Then he pointed out that, whereas a poll was taken on the Constitution according to law, no provision had been made for a separate poll on the conditions imposed by Congress. This, he thought, produced such confusion in the public mind as to cause the defeat of the Constitution. To be sure, he had proposed and was still in favor of submitting the question of a Convention to the people. But he would not now insist on such a policy. He freely admitted that the Legislative Assembly had the power to pass the measure before him. At the same time it seemed to him that, should the Constitution of 1844 be re-submitted to the people, it would simply give rise to confusion in attempts to reconcile and harmonize the various provisions of the statutes of the Territory, the act of Congress, and the Constitution. In the face of the Governor's veto the bill to re-submit the Constitution passed both branches of the Assembly by the requisite two-thirds majority, and on June 10, 1845, was declared by the Secretary of the Territory to be a law. It provided "that the Constitution as it came from the hands of the late Convention" be once more submitted to the people for their ratification or rejection. It directed that a poll be opened for that purpose at the general election to be held on the first Monday of August, 1845. The votes of the electors were to be given _viva voce_. Furthermore, it was expressly provided that the ratification of the Constitution "shall not be construed as an acceptance of the boundaries fixed by Congress in the late act of admission, and the admission shall not be deemed complete until whatever condition may be imposed by Congress, shall be ratified by the people." Thus the people were again asked to pass upon the Constitution of 1844. The campaign of the summer of 1845 was very much like the campaign of the spring. All of the leading arguments both for and against the Constitution were repeated in the press and on the stump. The parties divided on the same lines as before, except that the Whigs in their opposition had the assistance of a much larger Democratic contingent. One is surprised to find, in connection with the boundary question, little or no mention of "slavery," the "balance of power," or the "small State policy." Indeed the people of Iowa seemed wholly indifferent to these larger problems of National Politics. It is perhaps the most remarkable fact in the fascinating history of the Constitution of 1844 that, in the dispute over boundaries, the parties did not join issue on common grounds. Congress, on the one hand, desired to curtail the boundaries of Iowa for the purpose of creating a greater number of Northern States to balance the slave States of the South; whereas the people of Iowa protested against such curtailment not because of any balance-of-power considerations, but simply because they wanted a large State which would embrace the fertile regions of the Missouri on the West and of the St. Peters on the North. Augustus C. Dodge naturally received a good deal of criticism and abuse about this time on account of his March letter advising the acceptance of the boundaries proposed by Congress. By the Whigs he was set down as "a deserter of the people's cause." Even the Legislative Assembly, which was Democratic, resolved "that the Delegate in Congress be instructed to insist unconditionally on the Convention boundaries, and in no case to accept anything short of the St. Peters on the North, and the Missouri on the West, as the Northern and Western limits of the future State of Iowa." Mr. Dodge was not the man to oppose the known wishes of his constituents; and so, after June 10, 1845, he was found earnestly advocating the larger boundaries. One of the most interesting phases of the campaign was a surprising revelation in regard to the attitude and ambitions of the people living in the Northern part of the Territory--particularly the inhabitants of the city and county of Dubuque. In 1844 the people of this region had been in favor of extending the boundary as far North as the St. Peters; and in the Constitutional Convention of that year Mr. Langworthy, of Dubuque, had gone so far as to advocate the forty-fifth parallel of latitude as a line of division. But on April 26, 1845, the _Bloomington Herald_ declared that a proposition had gone out from Dubuque to divide the Territory on the North by a line running due West from the Mississippi between the counties of Jackson and Clinton and townships eighty-three and eighty-four. Later it was said that the _Dubuque Transcript_ was altogether serious in reference to this proposed division. These charges were not without foundation; for the records of Congress show that in May, 1846, the Speaker of the House of Representatives "presented a memorial of the citizens of the Territory of Iowa north of the forty-second degree of north latitude, praying for the establishment of a new territorial government, extending from the Mississippi river between the parallel of forty-two degrees and the northern boundary line of the United States. Also a memorial of Thomas McKnight and others, citizens of Dubuque county, in said Territory of like import." The official returns of the August election showed that the Constitution of 1844 had been rejected a second time. But the majority against its ratification had been cut down by at least one half. Angry with disappointment the editor of the _Iowa Capital Reporter_ declared that its defeat was due to "the pertinacious and wilful misrepresentation of the Whig press relative to the boundaries." XV THE CONVENTION OF 1846 When the members of the eighth Legislative Assembly of the Territory of Iowa met in the Capitol on the first Monday of December, 1845, they found that, as a result of the rejection of the Constitution of 1844, they were face to face with the question which for six years had confronted the pioneer law-makers of Iowa as the greatest political issue of the Territorial period. They found that the whole problem of State organization was before them for reconsideration. It was found also that Politics had worked some changes in the government of the Territory. John Chambers, who upon the completion of his first term as Governor had been promptly reappointed in 1844 by President Tyler, was as cheerfully removed by President Polk in 1845. And the Democracy of Iowa rejoiced over this manifestation of Jacksonianism. They believed that they would now have a Governor after their own heart--a Democrat who would have confidence in the people and respect the acts of their representatives. To be sure, the first Governor of the Territory of Iowa was a Democrat; but Robert Lucas had been altogether too independent. He had presumed to point out and correct the errors and blunders of the Assembly; whereas a true Democratic Governor was one who did not lead, but always followed the wisdom of the masses. James Clarke, the new Governor, was a citizen of Burlington and editor of the _Territorial Gazette_. During his residence in the Territory he had always taken an active part in Politics. In 1844 he served as a Delegate in the Constitutional Convention. Before this he had acted as Territorial Librarian; and for a short time he filled the office of Secretary of the Territory. Governor Clarke regretted the fate of the Constitution which he had helped to frame. In his message of December 3, 1845, he said: "Since your adjournment in June last, a most important question has been decided by the people, the effect of which is to throw us back where we originally commenced in our efforts to effect a change in the form of government under which we at present live.--I allude to the rejection of the Constitution at the August election. This result, however brought about, in my judgment, is one greatly to be deplored.--That misrepresentation and mystification had much to do in effecting it, there can be no doubt; still it stands as the recorded judgment of the people; and to that judgment until the people themselves reverse the decree, it is our duty to submit." As to recommendations in reference to this problem the Governor was cautious. He favored State organization, because he thought that "the prosperity of Iowa would be greatly advanced by her speedy incorporation into the Union as a State." But he did not presume to recommend a particular course of action; he simply assured the Assembly of his hearty co-operation in any measure which might be enacted looking toward the accomplishment of the desired end, that is, the early admission of Iowa into the Union. Confident that the people of Iowa really desired State organization and were anxious for its immediate establishment, the Legislative Assembly passed a bill providing for the election of delegates to a Constitutional Convention. This act, which was approved January 17, 1846, called for the election by the people of thirty-two delegates at the township elections in April. The delegates were directed to meet at Iowa City on the first Monday of May, 1846, "and proceed to form a Constitution and State Government for the future State of Iowa." When completed the draft of the code of fundamental law was to be submitted to the people for ratification or rejection at the first general election thereafter. If ratified by the people it was then to be submitted to Congress with the request that Iowa be admitted into the Union "upon an equal footing with the original States." Thus the Legislative Assembly forestalled the possibility of a repetition of the blunder of submitting to Congress a Constitution before it had been passed upon by the people. There was no serious opposition to the course outlined by the Assembly, for a large majority of the people were now anxious to see the matter of State organization carried to a successful conclusion. Owing to the absence of vital issues, the canvass preceding the election of delegates was not what would be called an enthusiastic campaign. There was of course a party struggle between the Whigs and the Democrats for the seats in the Convention. But the Whigs, "aware of their hopeless minority," advocated a "non-partisan election." They clamored for a "no-party Constitution,"--one free from party principles--for they did not want to see the Constitution of the State of Iowa made the reservoir of party creeds. They contended, therefore, that the delegates to the Convention should be chosen without reference to party affiliations. The Democrats, however, were not misled by the seductive cry of the Whigs. They proceeded to capture as many seats as possible. Everywhere they instructed their candidates to vote against banks. When the returns were all in it was found that they had elected more than two-thirds of the whole number of delegates. Of the thirty-two delegates who were elected to seats in the Convention of 1846, ten were Whigs and twenty-two were Democrats. Fifteen of the members were born in the South, eight in the New England States, four in the Middle States, and five in Ohio. Of those born in the South six were from Kentucky, four from Virginia, three from North Carolina, one from Alabama, and one from Maryland. The eight members born in New England were four from Vermont and four from Connecticut. The oldest member of the Convention was sixty-seven, the youngest twenty three; while the average age of all was about thirty-seven years. As to occupation, there were thirteen farmers, seven lawyers, four merchants, four physicians, one mechanic, one plasterer, one smelter, and one trader. It was on the morning of May 4, 1846, that the second Constitutional Convention met in the rooms of the Old Stone Capitol at Iowa City. Thirty names were entered on the roll. James Grant, a delegate from Scott county who had served in the first Convention, called the members to order. William Thompson (not a member) was appointed Secretary _pro tem_. Such was the temporary organization. It lasted but a few minutes; for, immediately after the roll had been called, Enos Lowe, of Des Moines county, was chosen, _viva voce_, President of the Convention. Mr. Thompson was retained as permanent Secretary, Wm. A. Skinner was named as the Sergeant-at-Arms. At this point "the Rev. Mr. Smith invoked a blessing from the Deity upon the future labors of the Convention." This was the only prayer offered during the entire session. Some time was saved by the immediate adoption of the rules of the Convention of 1844. In the afternoon it was agreed to have six regular standing Committees. These were: (1) On Boundaries and Bill of Rights; (2) On Executive Department; (3) On Legislative Department, Suffrage, Citizenship, Education, and School Lands; (4) On Judicial Department; (5) On Incorporations, Internal Improvements, and State Debts; and (6) On Schedule. It is unfortunate that only the barest fragments have been preserved of what was said in the Convention of 1846. The official journal and a few speeches are all that have come down to us. The debates could not have been very long, however, since the entire session of the Convention did not cover more than fifteen days. The discussion for the most part was confined to those subjects upon which there had been a marked difference of opinion in the earlier Convention or which had received attention in the campaigns of 1845. Indeed, the fact that Boundaries, Incorporations, Banks, Salaries, Suffrage, Executive Veto, Elective Judiciary, and Individual Rights were among the important topics of debate is evidence of a desire on the part of the Convention to formulate a code of fundamental law that would not meet with the criticisms which were so lavishly heaped upon the Constitution of 1844. The Convention of 1846 was certainly in earnest in its desire to draft a Constitution which would be approved by the people. Enos Lowe, the President, had at the outset informed the members that they were elected "to form a _new_ Constitution." But the attitude of the Convention is nowhere better expressed than in the following action which was taken on the eleventh day of May: "Whereas, In the opinion of this Convention, it is all important that the Constitution formed here at this time, be so framed as to meet with the approbation of a majority of the electors of this Territory, therefore, "_Resolved_, That a committee of three be added to the Supervisory Committee, whose duty shall be to enquire into the sectional feelings on the different parts of a Constitution, and to report such alterations as to them appears most likely to obviate the various objections that may operate against the adoption of this Constitution." By the nineteenth of May the Convention of 1846 had completed its labors. In comparison with the Convention of 1844 its history may be summed up in the one word, "Economy." The Convention of 1846 contained thirty-two members; that of 1844, seventy-two. The former continued in session fifteen days; the latter twenty-six days. The expenditures of the second Convention did not exceed $2,844.07; while the total cost of the first Convention was $7,850.20. Here then was economy in men, economy in time, and economy in expenditures. The thrifty pioneers were proud of the record. XVI THE CONSTITUTION OF 1846 The Constitution of 1846 was modeled upon the Constitution of 1844, although it was by no means a servile copy of that twice rejected instrument. Both codes were drawn up according to the same general plan, and were composed of the same number of articles, dealing substantially with the same subjects. The Constitution of 1846, however, was not so long as the Constitution of 1844 and was throughout more carefully edited. Article I. on "Preamble and Boundaries" does not contain the quotation from the preamble of the Federal Constitution which was made a part of the corresponding article in the Constitution of 1844. As to boundary specifications, the only material difference is found in the shifting of the line on the North from the St. Peters to the parallel of forty-three and one half degrees of North latitude. This new boundary was a compromise between the boundaries suggested by Lucas and those proposed by Nicollet. The "Bill of Rights," which constitutes Article II., contained one additional section, which aimed to disqualify all citizens who should participate in dueling from holding any office under the Constitution and laws of the State. Article III. on the "Right of Suffrage" reads the same as in the Constitution of 1844, although in the Convention of 1846 a strong effort had been made to extend this political right to resident foreigners who had declared their intention of becoming citizens. Article IV. on the composition, organization, and powers of the General Assembly contained four items which differed materially from the provisions of the Constitution of 1844. First, it was provided that the sessions of the General Assembly should commence on the first Monday of January instead of on the first Monday of December. Secondly, the Senate was to choose its own presiding officer. Thirdly, all bills for revenue must originate in the House of Representatives. Fourthly, the salaries for ten years were fixed as follows: for Governor $1,000; for Secretary of State $500; for Treasurer $400; for Auditor $600; and for Judges of the Supreme Court and District Courts $1,000. Article V. on "Executive Department" differs from the corresponding article in the Constitution of 1844 in that the office of Lieutenant Governor is omitted, while the term of the Governor is made four years instead of two. Article VI., which provides for the Judiciary, limits the term of the Judges of the Supreme Court and District Courts to four years. Articles VII. and VIII. on "Militia" and "State Debts" respectively are the same as in the earlier Constitution. Article IX. on "Incorporations" is a radical departure from the provisions of the old Constitution. The General Assembly is empowered to provide general laws with reference to corporations, but is restrained from creating such institutions by special laws. At the same time the article provides that "no corporate body shall hereafter be created, renewed, or extended, with the privilege of making, issuing, or putting in circulation, any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money. The General Assembly of this State shall prohibit, by law, any person or persons, association, company or corporation, from exercising the privileges of banking, or creating paper to circulate as money." Article X. on "Education and School Lands" directs the General Assembly to "provide for the election, by the people, of a Superintendent of Public Instruction" and to "encourage by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement." Article XI. on "Amendments of the Constitution" provided but one method of effecting changes in the fundamental law. The General Assembly was empowered to provide at any time for a vote of the people on the question of a Convention to "revise or amend this Constitution." If a majority of the people favored a Convention, then the General Assembly was to provide for the election of delegates. Article XII. contains three "miscellaneous" items relative to (_a_) the jurisdiction of Justices of the Peace, (_b_) the size of new counties, and (_c_) the location of lands granted to the State. Article XIII. on "Schedule" provided, among other things, that the Governor should by proclamation appoint the time for holding the first general election under the Constitution; but such election must be held within three months of the adoption of the Constitution. Likewise, the Governor was empowered to fix the day of the first meeting of the General Assembly of the State, which day, however, must be within four months of the ratification of the Constitution by the people. It is, moreover, interesting to note that while the Constitution of 1844 prescribed in general outline a system of county and township government, the Constitution of 1846 left the whole matter of local government to future legislation. XVII THE NEW BOUNDARIES While the people of the Territory of Iowa were preparing for and holding a second Constitutional Convention, and while they were debating the provisions of the new Constitution of 1846, Congress was reconsidering the boundaries of the proposed State. The matter had been called up early in the session by the Iowa Delegate. Mr. Dodge, having been re-elected, returned to Washington with the determination of carrying out his instructions so far as the boundary question was concerned. And so, on December 19, 1845, he asked leave to introduce "A Bill to define the boundaries of the State of Iowa, and to repeal so much of the act of the 3rd of March, 1845, as relates to the boundaries of Iowa." The original copy of this bill, which has been preserved in the office of the Clerk of the House of Representatives, bears testimony to Mr. Dodge's fidelity to promises made to the people; for the description of boundaries therein is a clipping from the Preamble of the printed pamphlet edition of the Constitution of 1844. In discussing the question later in the session he referred to his pledges as follows: "I know, Mr. Chairman, what are the wishes and sentiments of the people of Iowa upon this subject. It is but lately, sir, that I have undergone the popular ordeal upon this question; and I tell you, in all candor and sincerity, that I would not be in this Hall to-day if I had not made them the most solemn assurances that all my energies and whatever influence I possessed would be exerted to procure for them the fifty-seven thousand square miles included within the limits designated in their original constitution. It was in conformity with pledges that I had given them personally, with instructions which I knew I had received from them at the ballot-box, that I introduced, at an early day of the present session, the bill imbodying the boundaries of their choice." It was not, however, until March 27, 1846, that Mr. Stephen A. Douglas, from the Committee on the Territories to whom Mr. Dodge's bill had been referred, reported an "amendatory bill." This bill, which was introduced to take the place of the original bill, rejected the boundaries of the Constitution of 1844 and proposed the parallel of forty-three degrees and thirty minutes as the Northern boundary line of the new State. It was committed to the Committee of the Whole House on the State of the Union, wherein it was discussed on the eighth of June and reported back to the House. On the ninth of June the amendatory bill was taken up by the House and passed. It was reported to the Senate without delay, but was not passed by that body until the first day of August. On the fourth day of August the act received the approval of President Polk. The most important discussion of the bill was in the House of Representatives on the eighth day of June. An attempt was made to reduce the State on the North. Mr. Rockwell, of Massachusetts, moved to amend by striking out the words "forty-three and thirty minutes" where they occur and inserting in lieu thereof "forty-two degrees." He understood from a memorial which had been presented to the House that the people in the Northern part of the Territory did not wish to be included within the proposed boundaries. Mr. Douglas said that he was now in favor of the new boundaries as proposed by the Committee on the Territories. He declared that the boundaries of the act of March 3, 1845, "would be the worst that could be agreed upon; the most unnatural; the most inconvenient for the State itself, and leaving the balance of the territory in the worst shape for the formation of other new States." As to the memorial from Dubuque recommending the parallel of forty-two degrees, Mr. Douglas said that he was aware of the influences which produced it. The people of Dubuque "wished either for such an arrangement as should cause Dubuque to be the largest town in a little State, or else to make it the central town of a large State." Mr. Rathburn, of New York, was opposed to the lines laid down in the bill. He favored less extensive boundaries because he desired to preserve "the balance of power" in the Union by the creation of small States in the West. He "was against making Empires; he preferred that we should have States in this Union." Mr. Vinton, of Ohio, said that in the last session of Congress "no question except that of Texas had excited more interest in the House." He did not think that the people of the Territory should decide the question of boundaries; and he asserted that "if Congress was willing to let the people of Iowa cut and carve for themselves, he did not doubt that they would have their State extend to the mouth of the Columbia." The strongest speech, perhaps, in the whole debate was that of the Iowa Delegate. Mr. Dodge reviewed the history of the boundary dispute and pointed out that both he and the people of Iowa had pursued a firm and honorable course. He showed that many of the States were as large as or even larger than the proposed State of Iowa. Referring to the boundary proposed in the act of March 3, 1845, he said: "It will never be accepted by the people of Iowa." But he produced letters to show that the Iowa Convention of 1846 were willing to accept the compromise boundary proposed in the bill under discussion. "Thus, sir, it is now apparent that, if the House will pass the bill reported by the Committee on Territories, it will put an end to this question. The convention of Iowa have met the advances of the Committee on Territories of this House." Mr. Vinton then "moved an amendment, fixing the 43d parallel as the northern boundary." This was a tempting proposition. But Mr. Dodge stood firmly for the parallel of forty-three degrees _and thirty minutes_, and closed his remarks with these words: "I admonish the majority of this House that if the amendment of the gentleman from Ohio is to prevail, they might as well pass an act for our perpetual exclusion from the Union. Sir, the people of Iowa will never acquiesce in it." From the Journal of the Iowa Convention of 1846, it appears that when the Committee on Preamble and Boundaries made their report on the morning of the second day of the Convention they recommended the compromise boundaries which had already been proposed by the Committee on the Territories in the National House of Representatives. But when the report was taken up for consideration several days later an amendment was offered which proposed to substitute the boundaries as described in the Constitution of 1844. On a test ballot the vote of the Convention stood twenty-two to eight in favor of the amendment. This was on the eighth of May. Six days later a resolution instructing the Committee on Revision to amend the article on boundaries so as to read as follows was adopted by a vote of eighteen to thirteen: "Beginning in the middle of the main channel of the Mississippi river, at a point due east of the middle of the mouth of the main channel of the Des Moines river; thence up the middle of the main channel of the said Des Moines river, to a point on said river where the northern boundary line of the State of Missouri, as established by the Constitution of that State, adopted June 12th, 1820, crosses the said middle of the main channel of the said Des Moines river; thence westwardly, along the said northern boundary line of the State of Missouri, as established at the time aforesaid, until, an extension of said line intersects the middle of the main channel of the Missouri river; thence, up the middle of the main channel of the said Missouri river, to a point opposite the middle of the main channel of the Big Sioux river, according to Nicollet's map; thence up the main channel of the said Big Sioux river, according to said map, until it is intersected by the parallel of forty-three degrees and thirty minutes north latitude; thence east, along said parallel of forty-three degrees and thirty minutes, until said parallel intersects the middle of the main channel of the Mississippi river; thence down the middle of the main channel of said Mississippi river to the place of beginning." These were in substance the compromise boundaries which were first proposed in Congress by the Committee on the Territories on March 27, 1846. Their precise description, however, was the work of the Iowa Convention. Congress promptly adopted this description in the Act of August 4, 1846, by striking out the words of the bill then pending and inserting the language of the Iowa Convention as used in the Preamble to their Constitution. XVIII THE ADMISSION OF IOWA INTO THE UNION When submitted to the people the Constitution of 1846 was vigorously opposed by the Whigs who insisted that it was a party instrument. Their attitude and arguments are nowhere better set forth than in the address of Wm. Penn Clarke to the electors of the counties of Muscatine, Johnson, and Iowa. Mr. Clarke had come to the conclusion, after reading the proposed code of fundamental law, that its ratification would "prove greatly detrimental, if not entirely ruinous to the nearest and dearest interests of the people, by retarding the growth of the proposed State, in population, commerce, wealth and prosperity." This conviction led him to oppose the adoption of the Constitution of 1846. First, he objected to the Constitution "because it entirely prohibits the establishing of banking institutions,"--institutions which are absolutely essential to the economic welfare and industrial development of the State. He contended that this "inhibition of banks is not an inhibition of bank paper as a circulating medium. . . . . The question is narrowed down to the single point, _whether we will have banks of our own, and a currency of our own creation, and under our own control_, or whether we will become dependent on other States for such a circulating medium . . . . By prohibiting the creation of banks, we but disable ourselves, and _substitute_ a foreign currency for a home currency. The effect of the article on Incorporations will be to make Iowa the _plunder ground_ of all banks in the Union." Secondly, Mr. Clarke opposed the adoption of the Constitution of 1846 because of the provisions in the eighth and ninth articles. He maintained that the article on State Debts was "tantamount to an inhibition" of the construction of Internal Improvements by the State government; while the article on Incorporations aimed to prohibit the people from making such improvements. Thirdly, he protested against the "experiment" of an elective judicial system, since the election of the judges "is calculated to disrobe our Courts of Justice of their sacred character." Mr. Clarke would not "deny the right or the competency of the people to elect their judicial officers;" but he pointed out that the effect would be "to place upon the bench _political partisans_," and "to elevate to the judiciary second or third rate men in point of talents and legal acquirements." Fourthly, the Constitution should be rejected because it contains no provision securing to the people the right to elect their township and county officers. Furthermore, it is "entirely silent with reference to county and township organization." Fifthly, Mr. Clarke argued against the adoption of the Constitution because "not a single letter can be stricken from it without calling a Convention." He declared that the Democrats, after incorporating into the Constitution "partizan dogmas," so formulated the article on Amendments as to make their creed permanent. In the closing paragraphs of this remarkable arraignment of the proposed Constitution, Mr. Clarke referred to local interests in connection with the location of the State Capital. Iowa City, he said, had been founded "with a view to its being the permanent Capital of the State." But the new boundaries, proposed by the Committee on the Territories, would, if adopted, threaten the permanency of the Iowa City location. Indeed, Mr. Clarke went so far as to intimate that the relocation of the Capital was a part of Mr. Dodge's program in connection with the solution of the boundary problem. Curtailing the State on the North and extending it at the same time to the Missouri on the West meant the ultimate shifting of the Capital to the Raccoon Forks. Mr. Clarke concluded the prophecy by saying that "to quiet the center, we shall probably be promised a State University, or something of that character, and then be cheated in the end." Such were the leading objections to the ratification of the Constitution of 1846 as urged by the Whigs in the press and on the stump. They were supported by the more conservative Democrats who protested against the article on Incorporations and the article on Amendments. A large majority of the people, however, were impatient for the establishment of State organization. For the time they were even willing to overlook the defects of the proposed Constitution. Many voted for the instrument with the hope of remedying its imperfections after admission into the Union had once been effected. The Constitution of 1846 narrowly escaped defeat. At the polls on August 3, 1846, its supporters, according to the Governor's proclamation, were able to command a majority of only four hundred and fifty-six out of a total of eighteen thousand five hundred and twenty-eight votes. On September 9, 1846, Governor Clarke, as directed by the Territorial statute of January 17, 1846, issued a formal proclamation declaring the ratification and adoption of the Constitution. In the same proclamation, and in accordance with the provisions of the new Constitution, the Governor designated "Monday, The 26th Day of October Next" as the time for holding the first general election for State officers. The returns of this election showed that the Democrats had succeeded in electing Ansel Briggs, their candidate for Governor, by a majority of one hundred and sixty-one votes. The same party also captured a majority of the seats in the first General Assembly. Following the directions of the Schedule in the new Constitution, Governor Clarke issued a proclamation on November fifth in which he named Monday, November 30, 1846, as the day for the first meeting of the General Assembly. On December second the Territorial Governor transmitted his last message to the Legislature. It was on Thursday morning, December 3, 1846, that the Senators and Representatives assembled together in the hall of the House of Representatives in the Old Stone Capitol to witness the inauguration of the new Governor. Here in the presence of the General Assembly Judge Charles Mason, Chief Justice of the Supreme Court of the Territory, administered the oath of office to the first Governor of the State of Iowa. Twelve days after the inauguration of the State Governor at Iowa City, Mr. Dodge presented to the House of Representatives at Washington a copy of the Constitution of Iowa. The document was at once referred to the Committee on the Territories, from which a bill for the admission of Iowa into the Union was reported through Mr. Stephen A. Douglas on December seventeenth. It was made a special order of the day for Monday, December twenty-first, when it was debated and passed. Reported to the Senate on the twenty-second, it was there referred to the Committee on the Judiciary. This Committee reported the bill back to the Senate without amendment. After some consideration it passed the Senate on December twenty-fourth. Four days later it received the approval of President Polk. The existence of Iowa as one of the Commonwealths of the United States of America dates, therefore, from the TWENTY-EIGHTH DAY OF DECEMBER, ONE THOUSAND EIGHT HUNDRED AND FORTY-SIX. The act of admission declares that Iowa is "admitted into the Union on an equal footing with the original States in all respects whatsoever," and provides that all the provisions of "An Act supplemental to the Act for the Admission of the States of Iowa and Florida into the Union" approved March 3, 1845, shall continue in full force "as applicable to the State of Iowa." The conditions contained in the provisions of this act, which had been substituted by Congress in lieu of the provisions of the Ordinance submitted by the Convention of 1844, were finally accepted by the General Assembly of the State in an act approved January 17, 1849. XIX THE CONVENTION OF 1857 Throughout Iowa there was a very general feeling of satisfaction with the new political status which came with the establishment of State government and admission into the Union. Having outlived the conditions of Territorial government the pioneers of Iowa now entered into the new political life without regret. They rejoiced over the fact that they were recognized as a part of a great Nation. They appreciated the significance of the change. Nor were the pioneers of Iowa strangers to National political life. As settlers on the Public Domain they were in a very special sense children of the Nation. They had always cherished the inheritances of the "Fathers." But now the days of dependence were over. Henceforth this people of the frontier would strengthen the whole country with their own political ideas and ideals. They would, indeed, help to vitalize the Politics of the Nation with the provincial spirit of Western Democracy. On the other hand, the people of Iowa did not accept their new State Constitution without reservations. Wm. Penn Clarke's address had been widely read and his arguments were accepted not alone by the Whigs. In fact the Constitution of 1846 had not been adopted altogether on its merits. The people were anxious to get into the Union, and they voted for the Constitution as the shortest road to admission. They meant to correct its errors afterwards. In 1848 the editor of the _Iowa City Standard_ asserted that the Constitution of 1846 had been "accepted purely from motives of expediency, and with a tacit understanding that it was to receive some slight amendments as soon as they could constitutionally and legally be made. And but for this it would have been rejected by a very handsome majority. No well informed citizen can deny this." And so the Constitution of 1846 had scarcely been ratified at the polls before an agitation looking toward its amendment or revision was begun. As early as August 19, 1846, the _Iowa City Standard_ declared that "three fourths of the people of Iowa have determined that, cost what it may, the Ninth Article shall not remain unaltered in the Constitution." During the first session of the General Assembly of the State a bill providing for an expression of the opinion of the people of Iowa upon the subject of amendment passed the House of Representatives, but was indefinitely postponed in the Senate by a vote of ten to eight. This was in February, 1847. In 1848 the question of Constitutional amendment was made an issue in the political campaign. The Whigs advocated amendment or revision; while the Democrats as a rule stood for the Constitution as ratified in 1846. A bill providing for an expression of opinion by the people was again introduced in the House of Representatives during the second session of the General Assembly, but was indefinitely postponed after the second reading. A similar bill was rejected by the House during the third session. During the fourth regular session petitions favorable to amendment were received from the people. In the meantime Stephen Hempstead was elected to the office of Governor. He had been opposed to the agitation for Constitutional revision, and in his first Message of December 7, 1852, he said: "I cannot avoid a feeling of deep concern at the opinion expressed by some portion of our fellow citizens in favor of amending the Constitution of our State in such a manner as to authorize the establishment of Banks--of special acts of incorporation for pecuniary profit, and of contracting State debts without limitations of the General Assembly." In the same document he urged "upon the General Assembly the propriety of passing a law to prohibit the circulation of all bank notes of a less denomination than ten dollars." When he retired from office in December, 1854, he still declared that he saw no "imperative reason why our Constitution should be amended." But his successor, Governor Grimes, favored submitting the question of revision and amendment to the people. The necessity for a Convention to revise the Constitution of 1846 had become imperative. Iowa was flooded with a depreciated paper currency from other States. Gold and silver money was scarce. The few pieces which found their way into the State were hoarded either to pay taxes or to pay for government land. Finally, "An Act providing for the revision or amendment of the Constitution of this State" was passed by the fifth General Assembly and approved by Governor Grimes, January 24, 1855. In accordance with its provisions a poll was opened at the general election in August, 1856, "for the purpose of taking a vote of the people for or against a convention to revise or amend the Constitution." On the tenth day of September the Governor declared in his official proclamation that a majority of eighteen thousand six hundred and twenty-eight votes had been cast in favor of a Convention. In November, 1856, thirty-six delegates were elected to the Convention which met in the Supreme Court room of the Old Stone Capitol at Iowa City on January 19, 1857. Mr. Gray, of Linn County, called the Convention to order and moved that John A. Parvin, of Muscatine, be chosen President _pro tem_. On the following day Francis Springer was elected President of the Convention. The other permanent officers were as follows: Thomas J. Saunders, Secretary; Ellsworth N. Bates, Assistant Secretary; S. C. Trowbridge, Sergeant-at-Arms; Francis Thompson, Door Keeper; James O. Hawkins, Messenger; and W. Blair Lord, Reporter. Of the thirty-six delegates, six were from the New England States, eleven from the Middle States, ten from the South, and nine from the Middle West. As to occupation there were fourteen lawyers, twelve farmers, two merchants, two dealers in real estate, two bankers, one book-seller, one mail contractor, one druggist, and one pork-packer. The youngest member was twenty-six, the oldest fifty-six; while the average age of all the members was forty years. Twenty-one of the thirty-six members were Republicans; the other fifteen were Democrats. Early in the session of the Convention of 1857 there appeared to be considerable dissatisfaction with the accommodations afforded at Iowa City. The General Assembly had not yet adjourned, and so the Convention was compelled to meet for a few days in the Supreme Court room. Some of the members complained of the hotel service, and declared that they had not been welcomed with proper courtesy and hospitality by the people of Iowa City. At the same time the Convention received alluring invitations from Davenport and Dubuque. A committee of five was appointed to whom these invitations were referred. The report of this committee provoked a lively debate which Wm. Penn Clarke desired to have suppressed in the published reports. The result of the discussion was that the Convention concluded to remain in Iowa City. On the second day the members took an oath to support the Constitution of the United States. Some desired to include in this oath the Constitution of the State of Iowa; but the majority did not think it proper to swear allegiance to a Constitution which the Convention was called upon to amend, revise, or perhaps reject altogether. The act of January 24, 1855, calling for the Convention, provided for "the revision or amendment of the Constitution." Many would have been satisfied with a few amendments. The Convention, however, proceeded to draft a completely revised code of fundamental law. The two large volumes of printed reports show that the principles of Constitutional Law were discussed from Preamble to Schedule. The most important question before the Convention of 1857 was that of Corporations in general and of banking Corporations in particular. The Republican majority was pledged to make provisions for a banking system of some sort. But the popular mind had not decided whether there should be a State bank with branches, or a free banking system under legislative restrictions, or both. Difficult and intricate as the problem was, the Iowa Convention handled it, nevertheless, with energy and rare ability. The debates show that the laws and experience of the other States were carefully studied. Nor were local conditions and local experience forgotten. The discussions were long, earnest, and often heated; but at no time did the Iowa Convention lose its political sanity. That political poise which, in the long run, has always characterized Iowa Politics was maintained throughout the session. As finally agreed upon in the Convention, the provisions of the new Constitution relative to banking Corporations were in substance as follows: (1) The power to make laws relative to Corporations was conceded to the General Assembly. (2) But acts of the General Assembly authorizing or creating Corporations with banking powers must be referred to the people for their approval at a general or special election. (3) The General Assembly was empowered to establish "a State Bank with branches." But such a bank, if established, "shall be founded on an actual specie basis, and the branches shall be mutually responsible for each others' liabilities upon all notes, bills, and other issues intended for circulation as money." (4) The General Assembly may provide by a general law for a free banking system under certain restrictions. (_a_) Provision shall be made "for the registry and countersigning, by an officer of State, of all bills, or paper credit designed to circulate as money," and the law shall "require security to the full amount thereof, to be deposited with the State Treasurer, in United States stocks, or in interest-paying stocks of States in good credit and standing." (_b_) Records shall be kept of the names of stockholders and of the stock held by each. (_c_) Every stockholder shall be individually liable for an amount equal to twice the amount of his stock. (_d_) In cases of insolvency bill-holders shall have a preference over other creditors. (_e_) The suspension of specie payments shall never be permitted or sanctioned. (5) By a vote of two thirds of each branch of the General Assembly all laws for the organization or creation of Corporations could be amended or repealed. (6) The State shall not become a stockholder in any Corporation. Next in importance to the question of Corporations was the Negro problem. Shall the public schools of the State be open to persons of color? Shall the Constitution guarantee to all persons, irrespective of color, the right to acquire, hold, and transmit property? Shall the testimony of Negroes be accepted in the courts? Was the militia to be composed exclusively of "able-bodied white male citizens?" Shall the right of suffrage be extended to Negroes? It was in respect to these vital questions of the hour that the Republican majority in the Convention was compelled to declare and defend its attitude. The fact that the Republican party of Iowa was thus being put on trial for the first time makes the debates of the Convention of 1857 memorable in the political annals of the State. But these Iowa Republicans were at the same time defining and defending the attitude of their party on National issues; and so the debates of the Iowa Convention are a source-book also in the broader history of America. No one can read the pages of these debates without feeling that Iowa was making a decided contribution to National Politics. Nearly four years before the "Divided House Speech" was delivered at Springfield, Illinois, Governor Grimes had said in his inaugural address: "It becomes the State of Iowa--the only free child of the Missouri Compromise--to let the world know that she values the blessings that Compromise has secured her, and that she will never consent to become a party to the nationalization of slavery." And full two years before Lincoln defined the attitude of his party in the Lincoln-Douglas debates, it had gone forth from the Iowa Convention, (1) that the Republican party was not a sectional party; (2) that Abolition was not a part of the Republican creed; and (3) that, while they would arrest the further extension of slavery, Republicans had no desire to interfere with the institution in places where it already existed. The question as to whether the Negro should be allowed to vote in Iowa was referred to the people to be decided by them when the Constitution itself was submitted for ratification. Another question of interest which provoked considerable discussion in the Convention was the location of the State University and the re-location of the Capital. This problem had already been solved by the General Assembly. But to prevent further agitation by making the compromise permanent the following section was added to the new Constitution: "The Seat of Government is hereby permanently established, as now fixed by law, at the city of Des Moines, in the county of Polk, and the State University at Iowa City, in the county of Johnson." After a session of thirty-nine days the third Constitutional Convention in the history of Iowa adjourned _sine die_ on Thursday, March 5, 1857. XX THE CONSTITUTION OF 1857 The code of fundamental law which was drafted by the Convention of 1857 was modeled upon the Constitution of 1846, as this instrument had previously been patterned after the Constitution of 1844. Perhaps it would be better to say that the Constitution of 1857 was simply a revision of the Constitution of 1846. The later document, however, is fuller and altogether more complete and more perfect than its precursors. The changes which had been effected in the fundamental law were summed up by the President of the Convention in his closing remarks as follows: "We have added some new and important guards for the security of popular rights, and for the promotion of the best interests of the social compact. Restrictions existed in the old constitution, which it is believed have operated to check and retard the energies and prosperity of the State. These we have removed. We have stricken the fetters from the limbs of the infant giant, and given free scope to resources, capable as we believe, of working out the highest results." Some important additions were made to the Bill of Rights. Section four declares that the testimony of any person (including Negroes), not disqualified on account of interest, may be taken and used in any judicial proceeding. Section six provides that the "General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." To section nine is added the classical declaration that "no person shall be deprived of life, liberty, or property, without due process of law." Section twenty-four, which is altogether new, provides that "no lease or grant of agricultural lands, reserving any rent, or service of any kind, shall be valid for a longer period than twenty years." In Article III. the date of the regular biennial session of the General Assembly is changed from the first Monday in December to "the second Monday in January next ensuing the election of its members." Section fifteen provides that bills (including those for revenue) may originate in either House of the General Assembly. But, according to Section seventeen, "no bill shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly." Furthermore, the cases in which the General Assembly is prohibited from passing local or special laws are specifically enumerated in section thirty. The most significant change or addition in the article on the "Executive Department" is the provision for a Lieutenant Governor. The article on the Judicial Department provides for the election of the Judges of the Supreme Court by the people instead of by the General Assembly. By the same article provision is made for "the election of an Attorney General by the people." The article on "State Debts" is more explicit and more guarded, but permits the State to contract debts which, however, "shall never exceed the sum of two hundred and fifty thousand dollars." Article VIII. removes the illiberal restrictions which had been placed by the Constitution upon Corporations--especially banking Corporations. And Article X. makes the process of amending the fundamental law altogether more flexible. The Board of Education, provided for in Article IX., was an innovation. As a system of educational control it proved unsatisfactory and was soon abolished by the General Assembly. The new Constitution was submitted to the people for ratification at the regular annual election which was held on Monday, August 3, 1857. Naturally enough the Democrats, who had been in the minority in the Convention of 1857, opposed the adoption of this "Republican code." The Republican party, however, now had the confidence of the people and were able to secure its ratification by a majority of sixteen hundred and thirty votes. At the same time the special amendment which proposed to extend the right of suffrage to Negroes failed of adoption. On September 3, 1857, Governor James W. Grimes declared the "New Constitution" to be "the supreme law of the State of Iowa." 
36145	----	NO TREASON. No. VI. The Constitution of no Authority. BY LYSANDER SPOONER. BOSTON: PUBLISHED BY THE AUTHOR. 1870. No Treason The Constitution of No Authority I. The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. _And the Constitution, so far as it was their contract, died with them._ They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they _could_ bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but "the people" _then_ existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is: We, the people of the United States (that is, the people _then existing_ in the United States), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves _and our posterity_, do ordain and establish this Constitution for the United States of America. It is plain, in the first place, that this language, _as an agreement_, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any intention or desire, nor that they imagined they had any right or power, to bind their "posterity" to live under it. It does not say that their "posterity" will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc. Suppose an agreement were entered into, in this form: We, the people of Boston, agree to maintain a fort on Governor's Island, to protect ourselves and our posterity against invasion. This agreement, as an agreement, would clearly bind nobody but the people then existing. Secondly, it would assert no right, power, or disposition, on their part, to compel their "posterity" to maintain such a fort. It would only indicate that the supposed welfare of their posterity was one of the motives that induced the original parties to enter into the agreement. When a man says he is building a house for himself and his posterity, he does not mean to be understood as saying that he has any thought of binding them, nor is it to be inferred that he is so foolish as to imagine that he has any right or power to bind them, to live in it. So far as they are concerned, he only means to be understood as saying that his hopes and motives, in building it, are that they, or at least some of them, may find it for their happiness to live in it. So when a man says he is planting a tree for himself and his posterity, he does not mean to be understood as saying that he has any thought of compelling them, nor is it to be inferred that he is such a simpleton as to imagine that he has any right or power to compel them, to eat the fruit. So far as they are concerned, he only means to say that his hopes and motives, in planting the tree, are that its fruit may be agreeable to them. So it was with those who originally adopted the Constitution. Whatever may have been their personal intentions, the legal meaning of their language, so far as their "posterity" was concerned, simply was, that their hopes and motives, in entering into the agreement, were that it might prove useful and acceptable to their posterity; that it might promote their union, safety, tranquility, and welfare; and that it might tend "to secure to them the blessings of liberty." The language does not assert nor at all imply, any right, power, or disposition, on the part of the original parties to the agreement, to compel their "posterity" to live under it. If they had intended to bind their posterity to live under it, they should have said that their object was, not "to secure to them the blessings of liberty," but to make slaves of them; for if their "posterity" are bound to live under it, they are nothing less than the slaves of their foolish, tyrannical, and dead grandfathers. It cannot be said that the Constitution formed "the people of the United States," for all time, into a corporation. It does not speak of "the people" as a corporation, but as individuals. A corporation does not describe itself as "we," nor as "people," nor as "ourselves." Nor does a corporation, in legal language, have any "posterity." It supposes itself to have, and speaks of itself as having, perpetual existence, as a single individuality. Moreover, no body of men, existing at any one time, have the power to create a perpetual corporation. A corporation can become practically perpetual only by the voluntary accession of new members, as the old ones die off. But for this voluntary accession of new members, the corporation necessarily dies with the death of those who originally composed it. Legally speaking, therefore, there is, in the Constitution, nothing that professes or attempts to bind the "posterity" of those who established it. If, then, those who established the Constitution, had no power to bind, and did not attempt to bind, their posterity, the question arises, whether their posterity have bound themselves. If they have done so, they can have done so in only one or both of these two ways, viz., by voting, and paying taxes. II. Let us consider these two matters, voting and tax paying, separately. And first of voting. All the voting that has ever taken place under the Constitution, has been of such a kind that it not only did not pledge the whole people to support the Constitution, but it did not even pledge any one of them to do so, as the following considerations show. 1. In the very nature of things, the act of voting could bind nobody but the actual voters. But owing to the property qualifications required, it is probable that, during the first twenty or thirty years under the Constitution, not more than one-tenth, fifteenth, or perhaps twentieth of the whole population (black and white, men, women, and minors) were permitted to vote. Consequently, so far as voting was concerned, not more than one-tenth, fifteenth, or twentieth of those then existing, could have incurred any obligation to support the Constitution. At the present time, it is probable that not more than one-sixth of the whole population are permitted to vote. Consequently, so far as voting is concerned, the other five-sixths can have given no pledge that they will support the Constitution. 2. Of the one-sixth that are permitted to vote, probably not more than two-thirds (about one-ninth of the whole population) have usually voted. Many never vote at all. Many vote only once in two, three, five, or ten years, in periods of great excitement. No one, by voting, can be said to pledge himself for any longer period than that for which he votes. If, for example, I vote for an officer who is to hold his office for only a year, I cannot be said to have thereby pledged myself to support the government beyond that term. Therefore, on the ground of actual voting, it probably cannot be said that more than one-ninth or one-eighth, of the whole population are usually under any pledge to support the Constitution. 3. It cannot be said that, by voting, a man pledges himself to support the Constitution, unless the act of voting be a perfectly voluntary one on his part. Yet the act of voting cannot properly be called a voluntary one on the part of any very large number of those who do vote. It is rather a measure of necessity imposed upon them by others, than one of their own choice. On this point I repeat what was said in a former number,[a] viz.: "In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, _even for the time being_. On the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practice this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot--which is a mere substitute for a bullet--because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him. "Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby meliorating their condition. But it would not, therefore, be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or even consented to. "Therefore, a man's voting under the Constitution of the United States, is not to be taken as evidence that he ever freely assented to the Constitution, _even for the time being_. Consequently we have no proof that any very large portion, even of the actual voters of the United States, ever really and voluntarily consented to the Constitution, _even for the time being_. Nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to be disturbed or injured by others." As we can have no legal knowledge as to who votes from choice, and who from the necessity thus forced upon him, we can have no legal knowledge, as to any particular individual, that he voted from choice; or, consequently, that by voting, he consented, or pledged himself, to support the government. Legally speaking, therefore, the act of voting utterly fails to pledge _any one_ to support the government. It utterly fails to prove that the government rests upon the voluntary support of anybody. On general principles of law and reason, it cannot be said that the government has any voluntary supporters at all, until it can be distinctly shown who its voluntary supporters are. 4. As taxation is made compulsory on all, whether they vote or not, a large proportion of those who vote, no doubt do so to prevent their own money being used against themselves; when, in fact, they would have gladly abstained from voting, if they could thereby have saved themselves from taxation alone, to say nothing of being saved from all the other usurpations and tyrannies of the government. To take a man's property without his consent, and then to infer his consent because he attempts, by voting, to prevent that property from being used to his injury, is a very insufficient proof of his consent to support the Constitution. It is, in fact, no proof at all. And as we can have no legal knowledge as to who the particular individuals are, if there are any, who are willing to be taxed for the sake of voting, we can have no legal knowledge that any particular individual consents to be taxed for the sake of voting; or, consequently, consents to support the Constitution. 5. At nearly all elections, votes are given for various candidates for the same office. Those who vote for the unsuccessful candidates cannot properly be said to have voted to sustain the Constitution. They may, with more reason, be supposed to have voted, not to support the Constitution, but specially to prevent the tyranny which they anticipate the successful candidate intends to practice upon them under color of the Constitution; and therefore may reasonably be supposed to have voted against the Constitution itself. This supposition is the more reasonable, inasmuch as such voting is the only mode allowed to them of expressing their dissent to the Constitution. 6. Many votes are usually given for candidates who have no prospect of success. Those who give such votes may reasonably be supposed to have voted as they did, with a special intention, not to support, but to obstruct the execution of, the Constitution; and, therefore, against the Constitution itself. 7. As all the different votes are given secretly (by secret ballot), there is no legal means of knowing, from the votes themselves, who votes for, and who against, the Constitution. Therefore, voting affords no legal evidence that any particular individual supports the Constitution. And where there can be no legal evidence that any particular individual supports the Constitution, it cannot legally be said that anybody supports it. It is clearly impossible to have any legal proof of the intentions of large numbers of men, where there can be no legal proof of the intentions of any particular one of them. 8. There being no legal proof of any man's intentions, in voting, we can only conjecture them. As a conjecture, it is probable, that a very large proportion of those who vote, do so on this principle, viz., that if, by voting, they could but get the government into their own hands (or that of their friends), and use its powers against their opponents, they would then willingly support the Constitution; but if their opponents are to have the power, and use it against them, then they would _not_ willingly support the Constitution. In short, men's voluntary support of the Constitution is doubtless, in most cases, wholly contingent upon the question whether, by means of the Constitution, they can make themselves masters, or are to be made slaves. Such contingent consent as that is, in law and reason, no consent at all. 9. As everybody who supports the Constitution by voting (if there are any such) does so secretly (by secret ballot), and in a way to avoid all personal responsibility for the act of his agents or representatives, it cannot legally or reasonably be said that anybody at all supports the Constitution by voting. No man can reasonably or legally be said to do such a thing as to assent to, or support, the Constitution, _unless he does it openly, and in a way to make himself personally responsible for the acts of his agents, so long as they act within the limits of the power he delegates to them_. 10. As all voting is secret (by secret ballot), and as all secret governments are necessarily only secret bands of robbers, tyrants, and murderers, the general fact that our government is practically carried on by means of such voting, only proves that there is among us a secret band of robbers, tyrants and murderers, whose purpose is to rob, enslave, and, so far as necessary to accomplish their purposes, murder, the rest of the people. The simple fact of the existence of such a band does nothing towards proving that "the people of the United States," or any one of them, voluntarily supports the Constitution. For all the reasons that have now been given, voting furnishes no legal evidence as to who the particular individuals are (if there are any), who voluntarily support the Constitution. It therefore furnishes no legal evidence that anybody supports it voluntarily. So far, therefore, as voting is concerned, the Constitution, legally speaking, has no supporters at all. And, as matter of fact, there is not the slightest probability that the Constitution has a single bona fide supporter in the country. That is to say, there is not the slightest probability that there is a single man in the country, who both understands what the Constitution really is, _and sincerely supports it for what it really is_. The ostensible supporters of the Constitution, like the ostensible supporters of most other governments, are made up of three classes, viz.: 1. Knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. 2. Dupes--a large class, no doubt--each of whom, because he is allowed one voice out of millions in deciding what he may do with his own person and his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a "free man," a "sovereign"; that this is "a free government"; "a government of equal rights," "the best government on earth,"[b] and such like absurdities. 3. A class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so far sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change. III. The payment of taxes, being compulsory, of course furnishes no evidence that any one voluntarily supports the Constitution. 1. It is true that the _theory_ of our Constitution is, that all taxes are paid voluntarily; that our government is a mutual insurance company, voluntarily entered into by the people with each other; that each man makes a free and purely voluntary contract with all others who are parties to the Constitution, to pay so much money for so much protection, the same as he does with any other insurance company; and that he is just as free not to be protected, and not to pay tax, as he is to pay a tax, and be protected. But this theory of our government is wholly different from the practical fact. The fact is that the government, like a highwayman, says to a man: "Your money, or your life." And many, if not most, taxes are paid under the compulsion of that threat. The government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful. The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a "protector," and that he takes men's money against their will, merely to enable him to "protect" those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful "sovereign," on account of the "protection" he affords you. He does not keep "protecting" you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villainies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave. The proceedings of those robbers and murderers, who call themselves "the government," are directly the opposite of these of the single highwayman. In the first place, they do not, like him, make themselves individually known; or, consequently, take upon themselves personally the responsibility of their acts. On the contrary, they secretly (by secret ballot) designate some one of their number to commit the robbery in their behalf, while they keep themselves practically concealed. They say to the person thus designated: Go to A---- B----, and say to him that "the government" has need of money to meet the expenses of protecting him and his property. If he presumes to say that he has never contracted with us to protect him, and that he wants none of our protection, say to him that that is our business, and not his; that we _choose_ to protect him, whether he desires us to do so or not; and that we demand pay, too, for protecting him. If he dares to inquire who the individuals are, who have thus taken upon themselves the title of "the government," and who assume to protect him, and demand payment of him, without his having ever made any contract with them, say to him that that, too, is our business, and not his; that we do not _choose_ to make ourselves _individually_ known to him; that we have secretly (by secret ballot) appointed you our agent to give him notice of our demands, and, if he complies with them, to give him, in our name, a receipt that will protect him against any similar demand for the present year. If he refuses to comply, seize and sell enough of his property to pay not only our demands, but all your own expenses and trouble beside. If he resists the seizure of his property, call upon the bystanders to help you (doubtless some of them will prove to be members of our band). If, in defending his property, he should kill any of our band who are assisting you, capture him at all hazards; charge him (in one of our courts) with murder; convict him, and hang him. If he should call upon his neighbors, or any others who, like him, may be disposed to resist our demands, and they should come in large numbers to his assistance, cry out that they are all rebels and traitors; that "our country" is in danger; call upon the commander of our hired murderers; tell him to quell the rebellion and "save the country," cost what it may. Tell him to kill all who resist, though they should be hundreds of thousands; and thus strike terror into all others similarly disposed. See that the work of murder is thoroughly done; that we may have no further trouble of this kind hereafter. When these traitors shall have thus been taught our strength and our determination, they will be good loyal citizens for many years, and pay their taxes without a why or a wherefore. It is under such compulsion as this that taxes, so called, are paid. And how much proof the payment of taxes affords, that the people consent to support "the government," it needs no further argument to show. 2. Still another reason why the payment of taxes implies no consent, or pledge, to support the government, is that the taxpayer does not know, and has no means of knowing, who the particular individuals are who compose "the government." To him "the government" is a myth, an abstraction, an incorporeality, with which he can make no contract, and to which he can give no consent, and make no pledge. He knows it only through its pretended agents. "The government" itself he never sees. He knows indeed, by common report, that certain persons, of a certain age, are permitted to vote; and thus to make themselves parts of, or (if they choose) opponents of, the government, for the time being. But who of them do thus vote, and especially how each one votes (whether so as to aid or oppose the government), he does not know; the voting being all done secretly (by secret ballot). Who, therefore, practically compose "the government," for the time being, he has no means of knowing. Of course he can make no contract with them, give them no consent, and make them no pledge. Of necessity, therefore, his paying taxes to them implies, on his part, no contract, consent, or pledge to support them--that is, to support "the government," or the Constitution. 3. Not knowing who the particular individuals are, who call themselves "the government," the taxpayer does not know whom he pays his taxes to. All he knows is that a man comes to him, representing himself to be the agent of "the government"--that is, the agent of a secret band of robbers and murderers, who have taken to themselves the title of "the government," and have determined to kill everybody who refuses to give them whatever money they demand. To save his life, he gives up his money to this agent. But as this agent does not make his principals individually known to the taxpayer, the latter, after he has given up his money, knows no more who are "the government"--that is, who were the robbers--than he did before. To say, therefore, that by giving up his money to their agent, he entered into a voluntary contract with them, that he pledges himself to obey them, to support them, and to give them whatever money they should demand of him in the future, is simply ridiculous. 4. All political power, as it is called, rests practically upon this matter of money. Any number of scoundrels, having money enough to start with, can establish themselves as a "government"; because, with money, they can hire soldiers, and with soldiers extort more money; and also compel general obedience to their will. It is with government, as Caesar said it was in war, that money and soldiers mutually supported each other; that with money he could hire soldiers, and with soldiers extort money. So these villains, who call themselves governments, well understand that their power rests primarily upon money. With money they can hire soldiers, and with soldiers extort money. And, when their authority is denied, the first use they always make of money, is to hire soldiers to kill or subdue all who refuse them more money. For this reason, whoever desires liberty, should understand these vital facts, viz.: 1. That every man who puts money into the hands of a "government" (so called), puts into its hands a sword which will be used against himself, to extort more money from him, and also to keep him in subjection to its arbitrary will. 2. That those who will take his money, without his consent, in the first place, will use it for his further robbery and enslavement, if he presumes to resist their demands in the future. 3. That it is a perfect absurdity to suppose that any body of men would ever take a man's money without his consent, for any such object as they profess to take it for, viz., that of protecting him; for why should they wish to protect him, if he does not wish them to do so? To suppose that they would do so, is just as absurd as it would be to suppose that they would take his money without his consent, for the purpose of buying food or clothing for him, when he did not want it. 4. If a man wants "protection," he is competent to make his own bargains for it; and nobody has any occasion to rob him, in order to "protect" him against his will. 5. That the only security men can have for their political liberty, consists in their keeping their money in their own pockets, until they have assurances, perfectly satisfactory to themselves, that it will be used as they wish it to be used, for their benefit, and not for their injury. 6. That no government, so called, can reasonably be trusted for a moment, or reasonably be supposed to have honest purposes in view, any longer than it depends wholly upon voluntary support. These facts are all so vital and so self-evident, that it cannot reasonably be supposed that any one will voluntarily pay money to a "government," for the purpose of securing its protection, unless he first makes an explicit and purely voluntary contract with it for that purpose. It is perfectly evident, therefore, that neither such voting, nor such payment of taxes, as actually takes place, proves anybody's consent, or obligation, to support the Constitution. Consequently we have no evidence at all that the Constitution is binding upon anybody, or that anybody is under any contract or obligation whatever to support it. And nobody is under any obligation to support it. IV. _The Constitution not only binds nobody now, but it never did bind anybody._ It never bound anybody, because it was never agreed to by anybody in such a manner as to make it, on general principles of law and reason, binding upon him. It is a general principle of law and reason, that a _written_ instrument binds no one until he has signed it. This principle is so inflexible a one, that even though a man is unable to write his name, he must still "make his mark," before he is bound by a written contract. This custom was established ages ago, when few men could write their names; when a clerk--that is, a man who could write--was so rare and valuable a person, that even if he were guilty of high crimes, he was entitled to pardon, on the ground that the public could not afford to lose his services. Even at that time, a written contract must be signed; and men who could not write, either "made their mark," or signed their contracts by stamping their seals upon wax affixed to the parchment on which their contracts were written. Hence the custom of affixing seals, that has continued to this time. The law holds, and reason declares, that if a written instrument is not signed, the presumption must be that the party to be bound by it, did not choose to sign it, or to bind himself by it. And law and reason both give him until the last moment, in which to decide whether he will sign it, or not. Neither law nor reason requires or expects a man to agree to an instrument, _until it is written_; for until it is written, he cannot know its precise legal meaning. And when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not. And if he does not _then_ sign it, his reason is supposed to be, that he does not choose to enter into such a contract. The fact that the instrument was written for him to sign, or with the hope that he would sign it, goes for nothing. Where would be the end of fraud and litigation, if one party could bring into court a written instrument, without any signature, and claim to have it enforced, upon the ground that it was written for another man to sign? that this other man had promised to sign it? that he ought to have signed it? that he had had the opportunity to sign it, if he would? but that he had refused or neglected to do so? Yet that is the most that could ever be said of the Constitution.[c] The very judges, who profess to derive all their authority from the Constitution--from an instrument that nobody ever signed--would spurn any other instrument, not signed, that should be brought before them for adjudication. Moreover, a written instrument must, in law and reason, not only be signed, but must also be delivered to the party (or to some one for him), in whose favor it is made, before it can bind the party making it. The signing is of no effect, unless the instrument be also delivered. And a party is at perfect liberty to refuse to deliver a written instrument, after he has signed it. He is as free to refuse to deliver it, as he is to refuse to sign it. The Constitution was not only never signed by anybody, but it was never delivered by anybody, or to anybody's agent or attorney. It can therefore be of no more validity as a contract, than can any other instrument, that was never signed or delivered. V. As further evidence of the general sense of mankind, as to the practical necessity there is that all men's _important_ contracts, especially those of a permanent nature, should be both written and signed, the following facts are pertinent. For nearly two hundred years--that is, since 1677--there has been on the statute book of England, and the same, in substance, if not precisely in letter, has been re-enacted, and is now in force, in nearly or quite all the States of this Union, a statute, the general object of which is to declare that no action shall be brought to enforce contracts of the more important class, _unless they are put in writing, and signed by the parties to be held chargeable upon them_.[d] The principle of the statute, be it observed, is, not merely that written contracts shall be signed, but also that all contracts, except those specially exempted--generally those that are for small amounts, and are to remain in force but for a short time--_shall be both written and signed_. The reason of the statute, on this point, is, that it is now so easy a thing for men to put their contracts in writing, and sign them, and their failure to do so opens the door to so much doubt, fraud, and litigation, that men who neglect to have their contracts--of any considerable importance--written and signed, ought not to have the benefit of courts of justice to enforce them. And this reason is a wise one; and that experience has confirmed its wisdom and necessity, is demonstrated by the fact that it has been acted upon in England for nearly two hundred years, and has been so nearly universally adopted in this country, and that nobody thinks of repealing it. We all know, too, how careful most men are to have their contracts written and signed, even when this statute does not require it. For example, most men, if they have money due them, of no larger amount than five or ten dollars, are careful to take a note for it. If they buy even a small bill of goods, paying for it at the time of delivery, they take a receipted bill for it. If they pay a small balance of a book account, or any other small debt previously contracted, they take a written receipt for it. Furthermore, the law everywhere (probably) in our country, as well as in England, requires that a large class of contracts, such as wills, deeds, etc., shall not only be written and signed, but also sealed, witnessed, and acknowledged. And in the case of married women conveying their rights in real estate, the law, in many States, requires that the women shall be examined separate and apart from their husbands, and declare that they sign their contracts free of any fear or compulsion of their husbands. Such are some of the precautions which the laws require, and which individuals--from motives of common prudence, even in cases not required by law--take, to put their contracts in writing, and have them signed, and, to guard against all uncertainties and controversies in regard to their meaning and validity. And yet we have what purports, or professes, or is claimed, to be a contract--the Constitution--made eighty years ago, by men who are now all dead, and who never had any power to bind _us_, but which (it is claimed) has nevertheless bound three generations of men, consisting of many millions, and which (it is claimed) will be binding upon all the millions that are to come; but which nobody ever signed, sealed, delivered, witnessed, or acknowledged; and which few persons, compared with the whole number that are claimed to be bound by it, have ever read, or even seen, or ever will read, or see. And of those who ever have read it, or ever will read it, scarcely any two, perhaps no two, have ever agreed, or ever will agree, as to what it means. Moreover, this supposed contract, which would not be received in any court of justice sitting under its authority, if offered to prove a debt of five dollars, owing by one man to another, is one by which--_as it is generally interpreted by those who pretend to administer it_--all men, women and children throughout the country, and through all time, surrender not only all their property, but also their liberties, and even lives, into the hands of men who by this supposed contract, are expressly made wholly irresponsible for their disposal of them. And we are so insane, or so wicked, as to destroy property and lives without limit, in fighting to compel men to fulfill a supposed contract, which, inasmuch as it has never been signed by anybody, is, on general principles of law and reason--such principles as we are all governed by in regard to other contracts--the merest waste paper, binding upon nobody, fit only to be thrown into the fire; or, if preserved, preserved only to serve as a witness and a warning of the folly and wickedness of mankind. VI. It is no exaggeration, but a literal truth, to say that, by the Constitution--_not as I interpret it, but as it is interpreted by those who pretend to administer it_--the properties, liberties, and lives of the entire people of the United States are surrendered unreservedly into the hands of men who, it is provided by the Constitution itself, shall never be "questioned" as to any disposal they make of them. Thus the Constitution (Art. I, Sec. 6) provides that, "for any speech or debate (or vote), in either house, they (the senators and representatives) shall not be questioned in any other place." The whole law-making power is given to these senators and representatives (when acting by a two-thirds vote)[e]; and this provision protects them from all responsibility for the laws they make. The Constitution also enables them to secure the execution of all their laws, by giving them power to withhold the salaries of, and to impeach and remove, all judicial and executive officers, who refuse to execute them. Thus the whole power of the government is in their hands, and they are made utterly irresponsible for the use they make of it. What is this but absolute, irresponsible power? It is no answer to this view of the case to say that these men are under oath to use their power only within certain limits; for what care they, or what should they care, for oaths or limits, when it is expressly provided, by the Constitution itself, that they shall never be "questioned," or held to any responsibility whatever, for violating their oaths, or transgressing those limits? Neither is it any answer to this view of the case to say that the particular individuals holding this power can be changed once in two or six years; for the power of each set of men is absolute during the term for which they hold it; and when they can hold it no longer, they are succeeded only by men whose power will be equally absolute and irresponsible. Neither is it any answer to this view of the case to say that the men holding this absolute, irresponsible power, must be men chosen by the people (or portions of them) to hold it. A man is none the less a slave because he is allowed to choose a new master once in a term of years. Neither are a people any the less slaves because permitted periodically to choose new masters. What makes them slaves is the fact that they now are, and are always hereafter to be, in the hands of men whose power over them is, and always is to be, absolute and irresponsible.[f] The right of absolute and irresponsible dominion is the right of property, and the right of property is the right of absolute, irresponsible dominion. The two are identical; the one necessarily implying the other. Neither can exist without the other. If, therefore, Congress have that absolute and irresponsible law-making power, which the Constitution--according to their interpretation of it--gives them, it can only be because they own us as property. If they own us as property, they are our masters, and their will is our law. If they do not own us as property, they are not our masters, and their will, as such, is of no authority over us. But these men who claim and exercise this absolute and irresponsible dominion over us, dare not be consistent, and claim either to be our masters, or to own us as property. They say they are only our servants, agents, attorneys, and representatives. But this declaration involves an absurdity, a contradiction. No man can be my servant, agent, attorney, or representative, and be, at the same time, uncontrollable by me, and irresponsible to me for his acts. It is of no importance that I appointed him, and put all power in his hands. If I made him uncontrollable by me, and irresponsible to me, he is no longer my servant, agent, attorney, or representative. If I gave him absolute, irresponsible power over my property, I gave him the property. If I gave him absolute, irresponsible power over myself, I made him my master, and gave myself to him as a slave. And it is of no importance whether I called him master or servant, agent or owner. The only question is, what power did I put into his hands? Was it an absolute and irresponsible one? or a limited and responsible one? For still another reason they are neither our servants, agents, attorneys, nor representatives. And that reason is, that we do not make ourselves responsible for their acts. If a man is my servant, agent, or attorney, I necessarily make myself responsible for all his acts done within the limits of the power I have intrusted to him. If I have intrusted him, as my agent, with either absolute power, or any power at all, over the persons or properties of other men than myself, I thereby necessarily make myself responsible to those other persons for any injuries he may do them, so long as he acts within the limits of the power I have granted him. But no individual who may be injured in his person or property, by acts of Congress, can come to the individual electors, and hold them responsible for these acts of their so-called agents or representatives. This fact proves that these pretended agents of the people, of everybody, are really the agents of nobody. If, then, nobody is individually responsible for the acts of Congress, the members of Congress are nobody's agents. And if they are nobody's agents, they are themselves individually responsible for their own acts, and for the acts of all whom they employ. And the authority they are exercising is simply their own individual authority; and, by the law of nature--the highest of all laws--anybody injured by their acts, anybody who is deprived by them of his property or his liberty, has the same right to hold them individually responsible, that he has to hold any other trespasser individually responsible. He has the same right to resist them, and their agents, that he has to resist any other trespassers. VII. It is plain, then, that on general principles of law and reason--such principles as we all act upon in courts of justice and in common life--the Constitution is no contract; that it binds nobody, and never did bind anybody; and that all those who pretend to act by its authority, are really acting without any legitimate authority at all; that, on general principles of law and reason, they are mere usurpers, and that everybody not only has the right, but is morally bound, to treat them as such. If the people of this country wish to maintain such a government as the Constitution describes, there is no reason in the world why they should not sign the instrument itself, and thus make known their wishes in an open, authentic manner; in such manner as the common sense and experience of mankind have shown to be reasonable and necessary in such cases; _and in such manner as to make themselves (as they ought to do) individually responsible for the acts of the government_. But the people have never been asked to sign it. And the only reason why they have never been asked to sign it, has been that it has been known that they never would sign it; that they were neither such fools nor knaves as they must needs have been to be willing to sign it; that (at least as it has been practically interpreted) it is not what any sensible and honest man wants for himself; nor such as he has any right to impose upon others. It is, to all moral intents and purposes, as destitute of obligation as the compacts which robbers and thieves and pirates enter into with each other, but never sign. If any considerable number of the people believe the Constitution to be good, why do they not sign it themselves, and make laws for, and administer them upon, each other; leaving all other persons (who do not interfere with them) in peace? Until they have tried the experiment for themselves, how can they have the face to impose the Constitution upon, or even to recommend it to, others? Plainly the reason for such absurd and inconsistent conduct is that they want the Constitution, not solely for any honest or legitimate use it can be of to themselves or others, but for the dishonest and illegitimate power it gives them over the persons and properties of others. But for this latter reason, all their eulogiums on the Constitution, all their exhortations, and all their expenditures of money and blood to sustain it, would be wanting. VIII. The Constitution itself, then, being of no authority, on what authority does our government practically rest? On what ground can those who pretend to administer it, claim the right to seize men's property, to restrain them of their natural liberty of action, industry, and trade, and to kill all who deny their authority to dispose of men's properties, liberties, and lives at their pleasure or discretion? The most they can say, in answer to this question, is, that some half, two-thirds, or three-fourths, of the male adults of the country have a _tacit understanding_ that they will maintain a government under the Constitution; that they will select, by ballot, the persons to administer it; and that those persons who may receive a majority, or a plurality, of their ballots, shall act as their representatives, and administer the Constitution in their name, and by their authority. But this tacit understanding (admitting it to exist) cannot at all justify the conclusion drawn from it. A tacit understanding between A, B, and C, that they will, by ballot, depute D as their agent, to deprive me of my property, liberty, or life, cannot at all authorize D to do so. He is none the less a robber, tyrant, and murderer, because he claims to act as their agent, than he would be if he avowedly acted on his own responsibility alone. Neither am I bound to recognize him as their agent, nor can he legitimately claim to be their agent, when he brings no _written_ authority from them accrediting him as such. I am under no obligation to take his word as to who his principals may be, or whether he has any. Bringing no credentials, I have a right to say he has no such authority even as he claims to have: and that he is therefore intending to rob, enslave, or murder me on his own account. This tacit understanding, therefore, among the voters of the country, amounts to nothing as an authority to their agents. Neither do the ballots by which they select their agents, avail any more than does their tacit understanding; for their ballots are given in secret, and therefore in a way to avoid any personal responsibility for the acts of their agents. No body of men can be said to authorize a man to act as their agent, to the injury of a third person, unless they do it in so open and authentic a manner as to make themselves personally responsible for his acts. None of the voters in this country appoint their political agents in any open, authentic manner, or in any manner to make themselves responsible for their acts. Therefore these pretended agents cannot legitimately claim to be really agents. Somebody must be responsible for the acts of these pretended agents; and if they cannot show any open and authentic credentials from their principals, they cannot, in law or reason, be said to have any principals. The maxim applies here, that what does not appear, does not exist. If they can show no principals, they have none. But even these pretended agents do not themselves know who their pretended principals are. These latter act in secret; for acting by secret ballot is acting in secret as much as if they were to meet in secret conclave in the darkness of the night. And they are personally as much unknown to the agents they select, as they are to others. No pretended agent therefore can ever know by whose ballots he is selected, or consequently who his real principals are. Not knowing who his principals are, he has no right to say that he has any. He can, at most, say only that he is the agent of a secret band of robbers and murderers, who are bound by that faith which prevails among confederates in crime, to stand by him, if his acts, done in their name, shall be resisted. Men honestly engaged in attempting to establish justice in the world, have no occasion thus to act in secret; or to appoint agents to do acts for which they (the principals) are not willing to be responsible. The secret ballot makes a secret government; and a secret government is a secret band of robbers and murderers. Open despotism is better than this. The single despot stands out in the face of all men, and says: I am the State: My will is law: I am your master: I take the responsibility of my acts: The only arbiter I acknowledge is the sword: If any one denies my right, let him try conclusions with me. But a secret government is little less than a government of assassins. Under it, a man knows not who his tyrants are, until they have struck, and perhaps not then. He may _guess_, beforehand, as to some of his immediate neighbors. But he really knows nothing. The man to whom he would most naturally fly for protection, may prove an enemy, when the time of trial comes. This is the kind of government we have; and it is the only one we are likely to have, until men are ready to say: We will consent to no Constitution, except such an one as we are neither ashamed nor afraid to sign; and we will authorize no government to do anything in our name which we are not willing to be personally responsible for. IX. What is the motive to the secret ballot? This, and only this: Like other confederates in crime, those who use it are not friends, but enemies; and they are afraid to be known, and to have their individual doings known, even to each other. They can contrive to bring about a sufficient understanding to enable them to act in concert against other persons; but beyond this they have no confidence, and no friendship, among themselves. In fact, they are engaged quite as much in schemes for plundering each other, as in plundering those who are not of them. And it is perfectly well understood among them that the strongest party among them will, in certain contingencies, murder each other by the hundreds of thousands (as they lately did do) to accomplish their purposes against each other. Hence they dare not be known, and have their individual doings known, even to each other. And this is avowedly the only reason for the ballot: for a secret government; a government by secret bands of robbers and murderers. And we are insane enough to call this liberty! To be a member of this secret band of robbers and murderers is esteemed a privilege and an honor! Without this privilege, a man is considered a slave; but with it a free man! With it he is considered a free man, because he has the same power to secretly (by secret ballot) procure the robbery, enslavement, and murder of another man, and that other man has to procure his robbery, enslavement, and murder. And this they call equal rights! If any number of men, many or few, claim the right to govern the people of this country, let them make and sign an open compact with each other to do so. Let them thus make themselves individually known to those whom they propose to govern. And let them thus openly take the legitimate responsibility of their acts. How many of those who now support the Constitution, will ever do this? How many will ever dare openly proclaim their right to govern? or take the legitimate responsibility of their acts? Not one! X. It is obvious that, on general principles of law and reason, there exists no such thing as a government created by, or resting upon, any consent, compact, or agreement of "the people of the United States" with each other; that the only visible, tangible, responsible government that exists, is that of a few individuals only, who act in concert, and call themselves by the several names of senators, representatives, presidents, judges, marshals, treasurers, collectors, generals, colonels, captains, etc., etc. On general principles of law and reason, it is of no importance whatever that those few individuals profess to be the agents and representatives of "the people of the United States"; since they can show no credentials from the people themselves; they were never appointed as agents or representatives in any open, authentic manner; they do not themselves know, and have no means of knowing, and cannot prove, who their principals (as they call them) are individually; and consequently cannot, in law or reason, be said to have any principals at all. It is obvious, too, that if these alleged principals ever did appoint these pretended agents, or representatives, they appointed them secretly (by secret ballot), and in a way to avoid all personal responsibility for their acts; that, at most, these alleged principals put these pretended agents forward for the most criminal purposes, viz: to plunder the people of their property, and restrain them of their liberty; and that the only authority that these alleged principals have for so doing, is simply a _tacit understanding_ among themselves that they will imprison, shoot, or hang every man who resists the exactions and restraints which their agents or representatives may impose upon them. Thus it is obvious that the only visible, tangible government we have is made up of these professed agents or representatives of a secret band of robbers and murderers, who, to cover up, or gloss over, their robberies and murders, have taken to themselves the title of "the people of the United States"; and who, on the pretense of being "the people of the United States," assert their right to subject to their dominion, and to control and dispose of at their pleasure, all property and persons found in the United States. XI. On general principles of law and reason, the oaths which these pretended agents of the people take "to support the Constitution," are of no validity or obligation. And why? For this, if for no other reason, viz., _that they are given to nobody_. There is no privity (as the lawyers say)--that is, no mutual recognition, consent, and agreement--between those who take these oaths, and any other persons. If I go upon Boston Common, and in the presence of a hundred thousand people, men, women and children, with whom I have no contract on the subject, take an oath that I will enforce upon them the laws of Moses, of Lycurgus, of Solon, of Justinian, or of Alfred, that oath is, on general principles of law and reason, of no obligation. It is of no obligation, not merely because it is intrinsically a criminal one, _but also because it is given to nobody_, and consequently pledges my faith to nobody. It is merely given to the winds. It would not alter the case at all to say that, among these hundred thousand persons, in whose presence the oath was taken, there were two, three, or five thousand male adults, who had _secretly_--by secret ballot, and in a way to avoid making themselves _individually_ known to me, or to the remainder of the hundred thousand--designated me as their agent to rule, control, plunder, and, if need be, murder, these hundred thousand people. The fact that they had designated me secretly, and in a manner to prevent my knowing them individually, prevents all privity between them and me; and consequently makes it impossible that there can be any contract, or pledge of faith, on my part towards them; for it is impossible that I can pledge my faith, in any legal sense, to a man whom I neither know, nor have any means of knowing, individually. So far as I am concerned, then, these two, three, or five thousand persons are a secret band of robbers and murderers, who have secretly, and in a way to save themselves from all responsibility for my acts, designated me as their agent; and have, through some other agent, or pretended agent, made their wishes known to me. But being, nevertheless, individually unknown to me, and having no open, authentic contract with me, my oath is, on general principles of law and reason, of no validity as a pledge of faith to them. And being no pledge of faith to them, it is no pledge of faith to anybody. It is mere idle wind. At most, it is only a pledge of faith to an unknown band of robbers and murderers, whose instrument for plundering and murdering other people, I thus publicly confess myself to be. And it has no other obligation than a similar oath given to any other unknown body of pirates, robbers, and murderers. For these reasons the oaths taken by members of Congress, "to support the Constitution," are, on general principles of law and reason, of no validity. They are not only criminal in themselves, and therefore void; but they are also void for the further reason _that they are given to nobody_. It cannot be said that, in any legitimate or legal sense, they are given to "the people of the United States"; because neither the whole, nor any large proportion of the whole, people of the United States ever, either openly or secretly, appointed or designated these men as their agents to carry the Constitution into effect. The great body of the people--that is, men, women and children--were never asked, or even permitted, to signify, in any _formal_ manner, either openly or secretly, their choice or wish on the subject. The most that these members of Congress can say, in favor of their appointment, is simply this: Each one can say for himself: I have evidence satisfactory to myself, that there exists, scattered throughout the country, a band of men, having a tacit understanding with each other, and calling themselves "the people of the United States," whose general purposes are to control and plunder each other, and all other persons in the country, and, so far as they can, even in neighboring countries; and to kill every man who shall attempt to defend his person and property against their schemes of plunder and dominion. Who these men are, _individually_, I have no certain means of knowing, for they sign no papers, and give no open, authentic evidence of their individual membership. They are not known individually even to each other. They are apparently as much afraid of being individually known to each other, as of being known to other persons. Hence they ordinarily have no mode either of exercising, or of making known, their individual membership, otherwise than by giving their votes secretly for certain agents to do their will. But although these men are individually unknown, both to each other and to other persons, it is generally understood in the country that none but male persons, of the age of twenty-one years and upwards, can be members. It is also generally understood that _all_ male persons, born in the country, having certain complexions, and (in some localities) certain amounts of property, and (in certain cases) even persons of foreign birth, are _permitted_ to be members. But it appears that usually not more than one half, two-thirds, or, in some cases, three-fourths, of all who are thus permitted to become members of the band, ever exercise, or consequently prove, their actual membership, in the only mode in which they ordinarily can exercise or prove it, viz., by giving their votes secretly for the officers or agents of the band. The number of these secret votes, so far as we have any account of them, varies greatly from year to year, thus tending to prove that the band, instead of being a permanent organization, is a merely _pro tempore_ affair with those who choose to act with it for the time being. The gross number of these secret votes, or what purports to be their gross number, in different localities, is occasionally published. Whether these reports are accurate or not, we have no means of knowing. It is generally supposed that great frauds are often committed in depositing them. They are understood to be received and counted by certain men, who are themselves appointed for that purpose by the same secret process by which all other officers and agents of the band are selected. According to the reports of these receivers of votes (for whose accuracy or honesty, however, I cannot vouch), and according to my best knowledge of the whole number of male persons "in my district," who (it is supposed) were permitted to vote, it would appear that one-half, two-thirds or three-fourths actually did vote. Who the men were, individually, who cast these votes, I have no knowledge, for the whole thing was done secretly. But of the secret votes thus given for what they call a "member of Congress," the receivers reported that I had a majority, or at least a larger number than any other one person. And it is only by virtue of such a designation that I am now here to act in concert with other persons similarly selected in other parts of the country. It is understood among those who sent me here, that all the persons so selected, will, on coming together at the City of Washington, take an oath in each other's presence "to support the Constitution of the United States." By this is meant a certain paper that was drawn up eighty years ago. It was never signed by anybody, and apparently has no obligation, and never had any obligation, as a contract. In fact, few persons ever read it, and doubtless much the largest number of those who voted for me and the others, never even saw it, or now pretend to know what it means. Nevertheless, it is often spoken of in the country as "the Constitution of the United States"; and for some reason or another, the men who sent me here, seem to expect that I, and all with whom I act, will swear to carry this Constitution into effect. I am therefore ready to take this oath, and to co-operate with all others, similarly selected, who are ready to take the same oath. This is the most that any member of Congress can say in proof that he has any constituency; that he represents anybody; that his oath "to support the Constitution," _is given to anybody_, or pledges his faith to _anybody_. He has no open, written, or other authentic evidence, such as is required in all other cases, that he was ever appointed the agent or representative of anybody. He has no written power of attorney from any single individual. He has no such legal knowledge as is required in all other cases, by which he can identify a single one of those who pretend to have appointed him to represent them. Of course his oath, professedly given to them, "to support the Constitution," is, on general principles of law and reason, an oath given to nobody. It pledges his faith to nobody. If he fails to fulfil his oath, not a single person can come forward, and say to him, you have betrayed me, or broken faith with me. No one can come forward and say to him: I appointed you my attorney to act for me. I required you to swear that, as my attorney, you would support the Constitution. You promised me that you would do so; and now you have forfeited the oath you gave to me. No single individual can say this. No open, avowed, or responsible association, or body of men, can come forward and say to him: We appointed you our attorney, to act for us. We required you to swear that, as our attorney, you would support the Constitution. You promised us that you would do so; and now you have forfeited the oath you gave to us. No open, avowed, or responsible association, or body of men, can say this to him; because there is no such association or body of men in existence. If any one should assert that there is such an association, let him prove, if he can, who compose it. Let him produce, if he can, any open, written, or other authentic contract, signed or agreed to by these men; forming themselves into an association; making themselves known as such to the world; appointing him as their agent; and making themselves individually, or as an association, responsible for his acts, done by their authority. Until all this can be shown, no one can say that, in any legitimate sense, there is any such association; or that he is their agent; or that he ever gave his oath to them; or ever pledged his faith to them. On general principles of law and reason, it would be a sufficient answer for him to say, to all individuals, and all pretended associations of individuals, who should accuse him of a breach of faith to them: I never knew you. Where is your evidence that you, either individually or collectively, ever appointed me your attorney? that you ever required me to swear to you, that, as your attorney, I would support the Constitution? or that I have now broken any faith I ever pledged to you? You may, or you may not, be members of that secret band of robbers and murderers, who act in secret; appoint their agents by a secret ballot; who keep themselves individually unknown even to the agents they thus appoint; and who, therefore, cannot claim that they have any agents; or that any of their pretended agents ever gave his oath, or pledged his faith, to them. I repudiate you altogether. My oath was given to others, with whom you have nothing to do; or it was idle wind, given only to the idle winds. Begone! XII. For the same reasons, the oaths of all the other pretended agents of this secret band of robbers and murderers are, on general principles of law and reason, equally destitute of obligation. They are given to nobody; but only to the winds. The oaths of the tax-gatherers and treasurers of the band, are, on general principles of law and reason, of no validity. If any tax gatherer, for example, should put the money he receives into his own pocket, and refuse to part with it, the members of this band could not say to him: You collected that money as our agent, and for our uses; and you swore to pay it over to us, or to those we should appoint to receive it. You have betrayed us, and broken faith with us. It would be a sufficient answer for him to say to them: I never knew you. You never made yourselves individually known to me. I never gave my oath to you, as individuals. You may, or you may not, be members of that secret band, who appoint agents to rob and murder other people; but who are cautious not to make themselves individually known, either to such agents, or to those whom their agents are commissioned to rob. If you are members of that band, you have given me no proof that you ever commissioned me to rob others for your benefit. I never knew you, as individuals, and of course never promised you that I would pay over to you the proceeds of my robberies. I committed my robberies on my own account, and for my own profit. If you thought I was fool enough to allow you to keep yourselves concealed, and use me as your tool for robbing other persons; or that I would take all the personal risk of the robberies, and pay over the proceeds to you, you were particularly simple. As I took all the risk of my robberies, I propose to take all the profits. Begone! You are fools, as well as villains. If I gave my oath to anybody, I gave it to other persons than you. But I really gave it to nobody. I only gave it to the winds. It answered my purposes at the time. It enabled me to get the money I was after, and now I propose to keep it. If you expected me to pay it over to you, you relied only upon that honor that is said to prevail among thieves. You now understand that that is a very poor reliance. I trust you may become wise enough to never rely upon it again. If I have any duty in the matter, it is to give back the money to those from whom I took it; not to pay it over to such villains as you. XIII. On general principles of law and reason, the oaths which foreigners take, on coming here, and being "naturalized" (as it is called), are of no validity. They are necessarily given to nobody; because there is no open, authentic association, to which they can join themselves; or to whom, as individuals, they can pledge their faith. No such association, or organization, as "the people of the United States," having ever been formed by any open, written, authentic, or voluntary contract, there is, on general principles of law and reason, no such association, or organization, in existence. And all oaths that purport to be given to such an association are necessarily given only to the winds. They cannot be said to be given to any man, or body of men, as individuals, because no man, or body of men, can come forward _with any proof_ that the oaths were given to them, as individuals, or to any association of which they are members. To say that there is a tacit understanding among a portion of the male adults of the country, that they will call themselves "the people of the United States," and that they will act in concert in subjecting the remainder of the people of the United States to their dominion; but that they will keep themselves personally concealed by doing all their acts secretly, is wholly insufficient, on general principles of law and reason, to prove the existence of any such association, or organization, as "the people of the United States"; or consequently to prove that the oaths of foreigners were given to any such association. XIV. On general principles of law and reason, all the oaths which, since the war, have been given by Southern men, that they will obey the laws of Congress, support the Union, and the like, are of no validity. Such oaths are invalid, not only because they were extorted by military power, and threats of confiscation, and because they are in contravention of men's natural right to do as they please about supporting the government, _but also because they were given to nobody_. They were nominally given to "the United States." But being nominally given to "the United States," they were necessarily given to nobody, because, on general principles of law and reason, there were no "United States," to whom the oaths could be given. That is to say, there was no open, authentic, avowed, legitimate association, corporation, or body of men, known as "the United States," or as "the people of the United States," to whom the oaths could have been given. If anybody says there was such a corporation, let him state who were the individuals that composed it, and how and when they became a corporation. Were Mr. A, Mr. B, and Mr. C members of it? If so, where are their signatures? Where the evidence of their membership? Where the record? Where the open, authentic proof? There is none. Therefore, in law and reason, there was no such corporation. On general principles of law and reason, every corporation, association, or organized body of men, having a legitimate corporate existence, and legitimate corporate rights, must consist of certain known individuals, who can prove, by legitimate and reasonable evidence, their membership. But nothing of this kind can be proved in regard to the corporation, or body of men, who call themselves "the United States." Not a man of them, in all the Northern States, can prove by any legitimate evidence, such as is required to prove membership in other legal corporations, that he himself, or any other man whom he can name, is a member of any corporation or association called "the United States," or "the people of the United States," or, consequently, that there is any such corporation. And since no such corporation can be proved to exist, it cannot of course be proved that the oaths of Southern men were given to any such corporation. The most that can be claimed is that the oaths were given to a secret band of robbers and murderers, who called themselves "the United States," and extorted those oaths. But that certainly is not enough to prove that the oaths are of any obligation. XV. On general principles of law and reason, the oaths of soldiers, that they will serve a given number of years, that they will obey the orders of their superior officers, that they will bear true allegiance to the government, and so forth, are of no obligation. Independently of the criminality of an oath, that, for a given number of years, he will kill all whom he may be commanded to kill, without exercising his own judgment or conscience as to the justice or necessity of such killing, there is this further reason why a soldier's oath is of no obligation, viz., that, like all the other oaths that have now been mentioned, _it is given to nobody_. There being, in no legitimate sense, any such corporation, or nation, as "the United States," nor, consequently, in any legitimate sense, any such government as "the government of the United States," a soldier's oath given to, or contract made with, such nation or government, is necessarily an oath given to, or a contract made with, nobody. Consequently such oath or contract can be of no obligation. XVI. On general principles of law and reason, the treaties, so called, which purport to be entered into with other nations, by persons calling themselves ambassadors, secretaries, presidents, and senators of the United States, in the name, and in behalf, of "the people of the United States," are of no validity. These so-called ambassadors, secretaries, presidents, and senators, who claim to be the agents of "the people of the United States," for making these treaties, can show no open, written, or other authentic evidence that either the whole "people of the United States," or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors and others to make treaties in the name of, or binding upon any one of, "the people of the United States," or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors, secretaries, and others, in their name and behalf, to recognize certain other persons, calling themselves emperors, kings, queens, and the like, as the rightful rulers, sovereigns, masters, or representatives of the different peoples whom they assume to govern, to represent, and to bind. The "nations," as they are called, with whom our pretended ambassadors, secretaries, presidents, and senators profess to make treaties, are as much myths as our own. On general principles of law and reason, there are no such "nations." That is to say, neither the whole people of England, for example, nor any open, avowed, responsible body of men, calling themselves by that name, ever, by any open, written, or other authentic contract with each other, formed themselves into any bona fide, legitimate association or organization, or authorized any king, queen, or other representative to make treaties in their name, or to bind them, either individually, or as an association, by such treaties. Our pretended treaties, then, being made with no legitimate or bona fide nations, or representatives of nations, and being made, on our part, by persons who have no legitimate authority to act for us, have intrinsically no more validity than a pretended treaty made by the Man in the Moon with the king of the Pleiades. XVII. On general principles of law and reason, debts contracted in the name of "the United States," or of "the people of the United States," are of no validity. It is utterly absurd to pretend that debts to the amount of twenty-five hundred millions of dollars are binding upon thirty-five or forty millions of people, when there is not a particle of legitimate evidence--such as would be required to prove a private debt--that can be produced against any one of them, that either he, or his properly authorized attorney, ever contracted to pay one cent. Certainly, neither the whole people of the United States, nor any number of them, ever separately or individually contracted to pay a cent of these debts. Certainly, also, neither the whole people of the United States, nor any number of them, ever, by any open, written, or other authentic and voluntary contract, united themselves as a firm, corporation, or association, by the name of "the United States," or "the people of the United States," and authorized their agents to contract debts in their name. Certainly, too, there is in existence no such firm, corporation, or association as "the United States," or "the people of the United States," formed by any open, written, or other authentic and voluntary contract, and having corporate property with which to pay these debts. How, then, is it possible, on any general principle of law or reason, that debts that are binding upon nobody individually, can be binding upon forty millions of people collectively, when, on general and legitimate principles of law and reason, these forty millions of people neither have, nor ever had, any corporate property? never made any corporate or individual contract? and neither have, nor ever had, any corporate existence? Who, then, created these debts, in the name of "the United States"? Why, at most, only a few persons, calling themselves "members of Congress," etc., who pretended to represent "the people of the United States," but who really represented only a secret band of robbers and murderers, who wanted money to carry on the robberies and murders in which they were then engaged; and who intended to extort from the future people of the United States, by robbery and threats of murder (and real murder, if that should prove necessary), the means to pay these debts. This band of robbers and murderers, who were the real principals in contracting these debts, is a secret one, because its members have never entered into any open, written, avowed, or authentic contract, by which they may be individually known to the world, or even to each other. Their real or pretended representatives, who contracted these debts in their name, were selected (if selected at all) for that purpose secretly (by secret ballot), and in a way to furnish evidence against none of the principals _individually_; and these principals were really known _individually_ neither to their pretended representatives who contracted these debts in their behalf, nor to those who lent the money. The money, therefore, was all borrowed and lent in the dark; that is, by men who did not see each other's faces, or know each other's names; who could not then, and cannot now, identify each other as principals in the transactions; and who consequently can prove no contract with each other. Furthermore, the money was all lent and borrowed for criminal purposes; that is, for purposes of robbery and murder; and for this reason the contracts were all intrinsically void; and would have been so, even though the real parties, borrowers and lenders, had come face to face, and made their contracts openly, in their own proper names. Furthermore, this secret band of robbers and murderers, who were the real borrowers of this money, having no legitimate corporate existence, have no corporate property with which to pay these debts. They do indeed pretend to own large tracts of wild lands, lying between the Atlantic and Pacific Oceans, and between the Gulf of Mexico and the North Pole. But, on general principles of law and reason, they might as well pretend to own the Atlantic and Pacific Oceans themselves; or the atmosphere and the sunlight; and to hold them, and dispose of them, for the payment of these debts. Having no corporate property with which to pay what purports to be their corporate debts, this secret band of robbers and murderers are really bankrupt. They have nothing to pay with. In fact, they do not propose to pay their debts otherwise than from the proceeds of their future robberies and murders. These are confessedly their sole reliance; and were known to be such by the lenders of the money, at the time the money was lent. And it was, therefore, virtually a part of the contract, that the money should be repaid only from the proceeds of these future robberies and murders. For this reason, if for no other, the contracts were void from the beginning. In fact, these apparently two classes, borrowers and lenders, were really one and the same class. They borrowed and lent money from and to themselves. They themselves were not only part and parcel, but the very life and soul, of this secret band of robbers and murderers, who borrowed and spent the money. Individually they furnished money for a common enterprise; taking, in return, what purported to be corporate promises for individual loans. The only excuse they had for taking these so-called corporate promises of, for individual loans by, the same parties, was that they might have some apparent excuse for the future robberies of the band (that is, to pay the debts of the corporation), and that they might also know what shares they were to be respectively entitled to out of the proceeds of their future robberies. Finally, if these debts had been created for the most innocent and honest purposes, and in the most open and honest manner, by the real parties to the contracts, these parties could thereby have bound nobody but themselves, and no property but their own. They could have bound nobody that should have come after them, and no property subsequently created by, or belonging to, other persons. XVIII. The Constitution having never been signed by anybody; and there being no other open, written, or authentic contract between any parties whatever, by virtue of which the United States government, so called, is maintained; and it being well known that none but male persons, of twenty-one years of age and upwards, are allowed any voice in the government; and it being also well known that a large number of these adult persons seldom or never vote at all; and that all those who do vote, do so secretly (by secret ballot), and in a way to prevent their individual votes being known, either to the world, or even to each other; and consequently in a way to make no one openly responsible for the acts of their agents, or representatives,--all these things being known, the questions arise: _Who_ compose the real governing power in the country? Who are the men, _the responsible men_, who rob us of our property? Restrain us of our liberty? Subject us to their arbitrary dominion? And devastate our homes, and shoot us down by the hundreds of thousands, if we resist? How shall we find these men? How shall we know them from others? How shall we defend ourselves and our property against them? Who, of our neighbors, are members of this secret band of robbers and murderers? How can we know which are _their_ houses, that we may burn or demolish them? Which _their_ property, that we may destroy it? Which their persons, that we may kill them, and rid the world and ourselves of such tyrants and monsters? These are questions that must be answered, before men can be free; before they can protect themselves against this secret band of robbers and murderers, who now plunder, enslave, and destroy them. The answer to these questions is, that only those who have the will and the power to shoot down their fellow men, are the real rulers in this, as in all other (so-called) civilized countries; for by no others will civilized men be robbed, or enslaved. Among savages, mere physical strength, on the part of one man, may enable him to rob, enslave, or kill another man. Among barbarians, mere physical strength, on the part of a body of men, disciplined, and acting in concert, though with very little money or other wealth, may, under some circumstances, enable them to rob, enslave, or kill another body of men, as numerous, or perhaps even more numerous, than themselves. And among both savages and barbarians, mere want may sometimes compel one man to sell himself as a slave to another. But with (so-called) civilized peoples, among whom knowledge, wealth, and the means of acting in concert, have become diffused; and who have invented such weapons and other means of defense as to render mere physical strength of less importance; and by whom soldiers in any requisite number, and other instrumentalities of war in any requisite amount, can always be had for money, the question of war, and consequently the question of power, is little else than a mere question of money. As a necessary consequence, those who stand ready to furnish this money, are the real rulers. It is so in Europe, and it is so in this country. In Europe, the nominal rulers, the emperors and kings and parliaments, are anything but the real rulers of their respective countries. They are little or nothing else than mere tools, employed by the wealthy to rob, enslave, and (if need be) murder those who have less wealth, or none at all. The Rothschilds, and that class of money-lenders of whom they are the representatives and agents--men who never think of lending a shilling to their next-door neighbors, for purposes of honest industry, unless upon the most ample security, and at the highest rate of interest--stand ready, at all times, to lend money in unlimited amounts to those robbers and murderers, who call themselves governments, to be expended in shooting down those who do not submit quietly to being robbed and enslaved. They lend their money in this manner, knowing that it is to be expended in murdering their fellow men, for simply seeking their liberty and their rights; knowing also that neither the interest nor the principal will ever be paid, except as it will be extorted under terror of the repetition of such murders as those for which the money lent is to be expended. These money-lenders, the Rothschilds, for example, say to themselves: If we lend a hundred millions sterling to the queen and parliament of England, it will enable them to murder twenty, fifty, or a hundred thousand people in England, Ireland, or India; and the terror inspired by such wholesale murder, will enable them to keep the whole people of those countries in subjection for twenty, or perhaps fifty, years to come; to control all their trade and industry; and to extort from them large amounts of money, under the name of taxes; and from the wealth thus extorted from them, they (the queen and parliament) can afford to pay us a higher rate of interest for our money than we can get in any other way. Or, if we lend this sum to the emperor of Austria, it will enable him to murder so many of his people as to strike terror into the rest, and thus enable him to keep them in subjection, and extort money from them, for twenty or fifty years to come. And they say the same in regard to the emperor of Russia, the king of Prussia, the emperor of France, or any other ruler, so called, who, in their judgment, will be able, by murdering a reasonable portion of his people, to keep the rest in subjection, and extort money from them, for a long time to come, to pay the interest and principal of the money lent him. And why are these men so ready to lend money for murdering their fellow men? Solely for this reason, viz., that such loans are considered better investments than loans for purposes of honest industry. They pay higher rates of interest; and it is less trouble to look after them. This is the whole matter. The question of making these loans is, with these lenders, a mere question of pecuniary profit. They lend money to be expended in robbing, enslaving, and murdering their fellow men, solely because, on the whole, such loans pay better than any others. They are no respecters of persons, no superstitious fools, that reverence monarchs. They care no more for a king, or an emperor, than they do for a beggar, except as he is a better customer, and can pay them better interest for their money. If they doubt his ability to make his murders successful for maintaining his power, and thus extorting money from his people in future, they dismiss him as unceremoniously as they would dismiss any other hopeless bankrupt, who should want to borrow money to save himself from open insolvency. When these great lenders of blood-money, like the Rothschilds, have loaned vast sums in this way, for purposes of murder, to an emperor or a king, they sell out the bonds taken by them, in small amounts, to anybody, and everybody, who are disposed to buy them at satisfactory prices, to hold as investments. They (the Rothschilds) thus soon get back their money, with great profits; and are now ready to lend money in the same way again to any other robber and murderer, called an emperor or a king, who, they think, is likely to be successful in his robberies and murders, and able to pay a good price for the money necessary to carry them on. This business of lending blood-money is one of the most thoroughly sordid, cold-blooded, and criminal that was ever carried on, to any considerable extent, amongst human beings. It is like lending money to slave traders, or to common robbers and pirates, to be repaid out of their plunder. And the men who loan money to governments, so called, for the purpose of enabling the latter to rob, enslave, and murder their people, are among the greatest villains that the world has ever seen. And they as much deserve to be hunted and killed (if they cannot otherwise be got rid of) as any slave traders, robbers, or pirates that ever lived. When these emperors and kings, so-called, have obtained their loans, they proceed to hire and train immense numbers of professional murderers, called soldiers, and employ them in shooting down all who resist their demands for money. In fact, most of them keep large bodies of these murderers constantly in their service, as their only means of enforcing their extortions. There are now, I think, four or five millions of these professional murderers constantly employed by the so-called sovereigns of Europe. The enslaved people are, of course, forced to support and pay all these murderers, as well as to submit to all the other extortions which these murderers are employed to enforce. It is only in this way that most of the so-called governments of Europe are maintained. These so-called governments are in reality only great bands of robbers and murderers, organized, disciplined, and constantly on the alert. And the so-called sovereigns, in these different governments, are simply the heads, or chiefs, of different bands of robbers and murderers. And these heads or chiefs are dependent upon the lenders of blood-money for the means to carry on their robberies and murders. They could not sustain themselves a moment but for the loans made to them by these blood-money loan-mongers. And their first care is to maintain their credit with them; for they know their end is come, the instant their credit with them fails. Consequently the first proceeds of their extortions are scrupulously applied to the payment of the interest on their loans. In addition to paying the interest on their bonds, they perhaps grant to the holders of them great monopolies in banking, like the Banks of England, of France, and of Vienna; with the agreement that these banks shall furnish money whenever, in sudden emergencies, it may be necessary to shoot down more of their people. Perhaps also, by means of tariffs on competing imports, they give great monopolies to certain branches of industry, in which these lenders of blood-money are engaged. They also, by unequal taxation, exempt wholly or partially the property of these loan-mongers, and throw corresponding burdens upon those who are too poor and weak to resist. Thus it is evident that all these men, who call themselves by the high-sounding names of Emperors, Kings, Sovereigns, Monarchs, Most Christian Majesties, Most Catholic Majesties, High Mightinesses, Most Serene and Potent Princes, and the like, and who claim to rule "by the grace of God," by "Divine Right"--that is, by special authority from Heaven--are intrinsically not only the merest miscreants and wretches, engaged solely in plundering, enslaving, and murdering their fellow men, but that they are also the merest hangers on, the servile, obsequious, fawning dependents and tools of these blood-money loan-mongers, on whom they rely for the means to carry on their crimes. These loan-mongers, like the Rothschilds, laugh in their sleeves, and say to themselves: These despicable creatures, who call themselves emperors, and kings, and majesties, and most serene and potent princes; who profess to wear crowns, and sit on thrones; who deck themselves with ribbons, and feathers, and jewels; and surround themselves with hired flatterers and lickspittles; and whom we suffer to strut around, and palm themselves off, upon fools and slaves, as sovereigns and lawgivers specially appointed by Almighty God; and to hold themselves out as the sole fountains of honors, and dignities, and wealth, and power--all these miscreants and imposters know that we make them, and use them; that in us they live, move, and have their being; that we require them (as the price of their positions) to take upon themselves all the labor, all the danger, and all the odium of all the crimes they commit for our profit; and that we will unmake them, strip them of their gewgaws, and send them out into the world as beggars, or give them over to the vengeance of the people they have enslaved, the moment they refuse to commit any crime we require of them, or to pay over to us such share of the proceeds of their robberies as we see fit to demand. XIX. Now, what is true in Europe, is substantially true in this country. The difference is the immaterial one, that, in this country, there is no visible, permanent head, or chief, of these robbers and murderers, who call themselves "the government." That is to say, there is no _one man_, who calls himself the state, or even emperor, king, or sovereign; no one who claims that he and his children rule "by the Grace of God," by "Divine Right," or by special appointment from Heaven. There are only certain men, who call themselves presidents, senators, and representatives, and claim to be the authorized agents, _for the time being, or for certain short periods, of all_ "the people of the United States"; but who can show no credentials, or powers of attorney, or any other open, authentic evidence that they are so; and who notoriously are not so; but are really only the agents of a secret band of robbers and murderers, whom they themselves do not know, and have no means of knowing, individually; but who, they trust, will openly or secretly, when the crisis comes, sustain them in all their usurpations and crimes. What is important to be noticed is, that these so-called presidents, senators, and representatives, these pretended agents of all "the people of the United States," the moment their exactions meet with any formidable resistance from any portion of "the people" themselves, are obliged, like their co-robbers and murderers in Europe, to fly at once to the lenders of blood money, for the means to sustain their power. And they borrow their money on the same principle, and for the same purpose, viz., to be expended in shooting down all those "people of the United States"--their own constituents and principals, as they profess to call them--who resist the robberies and enslavement which these borrowers of the money are practising upon them. And they expect to repay the loans, if at all, only from the proceeds of the future robberies, which they anticipate it will be easy for them and their successors to perpetrate through a long series of years, upon their pretended principals, if they can but shoot down now some hundreds of thousands of them, and thus strike terror into the rest. Perhaps the facts were never made more evident, in any country on the globe, than in our own, that these soulless blood-money loan-mongers are the real rulers; that they rule from the most sordid and mercenary motives; that the ostensible government, the presidents, senators, and representatives, so called, are merely their tools; and that no ideas of, or regard for, justice or liberty had anything to do in inducing them to lend their money for the war. In proof of all this, look at the following facts. Nearly a hundred years ago we professed to have got rid of all that religious superstition, inculcated by a servile and corrupt priesthood in Europe, that rulers, so called, derived their authority directly from Heaven; and that it was consequently a religious duty on the part of the people to obey them. We professed long ago to have learned that governments could rightfully exist only by the free will, and on the voluntary support, of those who might choose to sustain them. We all professed to have known long ago, that the only legitimate objects of government were the maintenance of liberty and justice equally for all. All this we had professed for nearly a hundred years. And we professed to look with pity and contempt upon those ignorant, superstitious, and enslaved peoples of Europe, who were so easily kept in subjection by the frauds and force of priests and kings. Notwithstanding all this, that we had learned, and known, and professed, for nearly a century, these lenders of blood money had, for a long series of years previous to the war, been the willing accomplices of the slave-holders in perverting the government from the purposes of liberty and justice, to the greatest of crimes. They had been such accomplices _for a purely pecuniary consideration_, to wit, a control of the markets in the South; in other words, the privilege of holding the slave-holders themselves in industrial and commercial subjection to the manufacturers and merchants of the North (who afterwards furnished the money for the war). And these Northern merchants and manufacturers, these lenders of blood-money, were willing to continue to be the accomplices of the slave-holders in the future, for the same pecuniary consideration. But the slave-holders, either doubting the fidelity of their Northern allies, or feeling themselves strong enough to keep their slaves in subjection without Northern assistance, would no longer pay the price which these Northern men demanded. And it was to enforce this price in the future--that is, to monopolize the Southern markets, to maintain their industrial and commercial control over the South--that these Northern manufacturers and merchants lent some of the profits of their former monopolies for the war, in order to secure to themselves the same, or greater, monopolies in the future. These--and not any love of liberty or justice--were the motives on which the money for the war was lent by the North. In short, the North said to the slave-holders: If you will not pay us our price (give us control of your markets) for our assistance against your slaves, we will secure the same price (keep control of your markets) by helping your slaves against you, and using them as our tools for maintaining dominion over you; for the control of your markets we will have, whether the tools we use for that purpose be black or white, and be the cost, in blood and money, what it may. On this principle, and from this motive, and not from any love of liberty, or justice, the money was lent in enormous amounts, and at enormous rates of interest. And it was only by means of these loans that the objects of the war were accomplished. And now these lenders of blood-money demand their pay; and the government, so called, becomes their tool, their servile, slavish, villainous tool, to extort it from the labor of the enslaved people both of the North and the South. It is to be extorted by every form of direct, and indirect, and unequal taxation. Not only the nominal debt and interest--enormous as the latter was--are to be paid in full; but these holders of the debt are to be paid still further--and perhaps doubly, triply, or quadruply paid--by such tariffs on imports as will enable our home manufacturers to realize enormous prices for their commodities; also by such monopolies in banking as will enable them to keep control of, and thus enslave and plunder, the industry and trade of the great body of the Northern people themselves. In short, the industrial and commercial slavery of the great body of the people, North and South, black and white, is the price which these lenders of blood money demand, and insist upon, and are determined to secure, in return for the money lent for the war. This programme having been fully arranged and systematized, they put their sword into the hands of the chief murderer of the war, and charge him to carry their scheme into effect. And now he, speaking as their organ, says: "_Let us have peace_." The meaning of this is: Submit quietly to all the robbery and slavery we have arranged for you, and you can have "peace." But in case you resist, the same lenders of blood-money, who furnished the means to subdue the South, will furnish the means again to subdue you. These are the terms on which alone this government, or, with few exceptions, any other, ever gives "peace" to its people. The whole affair, on the part of those who furnished the money, has been, and now is, a deliberate scheme of robbery and murder; not merely to monopolize the markets of the South, but also to monopolize the currency, and thus control the industry and trade, and thus plunder and enslave the laborers, of both North and South. And Congress and the president are today the merest tools for these purposes. They are obliged to be, for they know that their own power, as rulers, so-called, is at an end, the moment their credit with the blood-money loan-mongers fails. They are like a bankrupt in the hands of an extortioner. They dare not say nay to any demand made upon them. And to hide at once, if possible, both their servility and their crimes, they attempt to divert public attention, by crying out that they have "Abolished Slavery!" That they have "Saved the Country!" That they have "Preserved our Glorious Union!" and that, in now paying the "National Debt," as they call it (as if the people themselves, _all of them who are to be taxed for its payment_, had really and voluntarily joined in contracting it), they are simply "Maintaining the National Honor!" By "maintaining the national honor," they mean simply that they themselves, open robbers and murderers, assume to be the nation, and will keep faith with those who lend them the money necessary to enable them to crush the great body of the people under their feet; and will faithfully appropriate, from the proceeds of their future robberies and murders, enough to pay all their loans, principal and interest. The pretense that the "abolition of slavery" was either a motive or justification for the war, is a fraud of the same character with that of "maintaining the national honor." Who, but such usurpers, robbers, and murderers as they, ever established slavery? Or what government, except one resting upon the sword, like the one we now have, was ever capable of maintaining slavery? And why did these men abolish slavery? Not from any love of liberty in general--not as an act of justice to the black man himself, but only "as a war measure," and because they wanted his assistance, and that of his friends, in carrying on the war they had undertaken for maintaining and intensifying that political, commercial, and industrial slavery, to which they have subjected the great body of the people, both white and black. And yet these imposters now cry out that they have abolished the chattel slavery of the black man--although that was not the motive of the war--as if they thought they could thereby conceal, atone for, or justify that other slavery which they were fighting to perpetuate, and to render more rigorous and inexorable than it ever was before. There was no difference of principle--but only of degree--between the slavery they boast they have abolished, and the slavery they were fighting to preserve; for all restraints upon men's natural liberty, not necessary for the simple maintenance of justice, are of the nature of slavery, and differ from each other only in degree. If their object had really been to abolish slavery, or maintain liberty or justice generally, they had only to say: All, whether white or black, who want the protection of this government, shall have it; and all who do not want it, will be left in peace, so long as they leave us in peace. Had they said this, slavery would necessarily have been abolished at once; the war would have been saved; and a thousand times nobler union than we have ever had would have been the result. It would have been a voluntary union of free men; such a union as will one day exist among all men, the world over, if the several nations, so called, shall ever get rid of the usurpers, robbers, and murderers, called governments, that now plunder, enslave, and destroy them. Still another of the frauds of these men is, that they are now establishing, and that the war was designed to establish, "a government of consent." The only idea they have ever manifested as to what is a government of consent, is this--that it is one to which everybody must consent, or be shot. This idea was the dominant one on which the war was carried on; and it is the dominant one, now that we have got what is called "peace." Their pretenses that they have "Saved the Country," and "Preserved our Glorious Union," are frauds like all the rest of their pretenses. By them they mean simply that they have subjugated, and maintained their power over, an unwilling people. This they call "Saving the Country"; as if an enslaved and subjugated people--or as if any people kept in subjection by the sword (as it is intended that all of us shall be hereafter)--could be said to have any country. This, too, they call "Preserving our Glorious Union"; as if there could be said to be any Union, glorious or inglorious, that was not voluntary. Or as if there could be said to be any union between masters and slaves; between those who conquer, and those who are subjugated. All these cries of having "abolished slavery," of having "saved the country," of having "preserved the union," of establishing "a government of consent," and of "maintaining the national honor," are all gross, shameless, transparent cheats--so transparent that they ought to deceive no one--when uttered as justifications for the war, or for the government that has succeeded the war, or for now compelling the people to pay the cost of the war, or for compelling anybody to support a government that he does not want. The lesson taught by all these facts is this: As long as mankind continue to pay "national debts," so-called--that is, so long as they are such dupes and cowards as to pay for being cheated, plundered, enslaved, and murdered--so long there will be enough to lend the money for those purposes; and with that money a plenty of tools, called soldiers, can be hired to keep them in subjection. But when they refuse any longer to pay for being thus cheated, plundered, enslaved, and murdered, they will cease to have cheats, and usurpers, and robbers, and murderers and blood-money loan-mongers for masters. APPENDIX. Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain--that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist. FOOTNOTES: [a] See _No Treason_, No. 2, pages 5 and 6. [b] Suppose it be "the best government on earth," does that prove its own goodness, or only the badness of all other governments? [c] The very men who drafted it, never signed it in any way to bind themselves by it, _as a contract_. And not one of them probably ever would have signed it in any way to bind himself by it, _as a contract_. [d] I have personally examined the statute books of the following States, viz.: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee, Kentucky, Ohio, Michigan, Indiana, Illinois, Wisconsin, Texas, Arkansas, Missouri, Iowa, Minnesota, Nebraska, Kansas, Nevada, California, and Oregon, and find that in all these States the English statute has been re-enacted, sometimes with modifications, but generally enlarging its operations, and is now in force. The following are some of the provisions of the Massachusetts statute: "No action shall be brought in any of the following cases, that is to say: ... "To charge a person upon a special promise to answer for the debt, default, or misdoings of another: ... "Upon a contract for the sale of lands, tenements, hereditaments, or of any interest in, or concerning them; or "Upon an agreement that is not to be performed within one year from the writing thereof: "Unless the promise, contract, or agreement, upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized." "No contract for the sale of goods, wares, or merchandise, for the price of fifty dollars or more, shall be good or valid, unless the purchaser accepts and receives part of the goods so sold, or gives something in earnest to bind the bargain, or in part payment; or unless some note or memorandum in writing of the bargain is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." [e] And this two-thirds vote may be but two-thirds of a quorum--that is two-thirds of a majority--instead of two-thirds of the whole. [f] Of what appreciable value is it to any man, as an individual, that he is allowed a voice in choosing these public masters? His voice is only one of several millions. Transcriber's Notes: Passages in italics are indicated by _italics_. Inconsistencies in spelling and hyphenation have been retained from the original. Obvious typographical errors have been corrected as follows: Page 22: "do" changed to "does" Punctuation has been corrected without note. 
15752	----	PERSONAL REMINISCENCES OF EARLY DAYS IN CALIFORNIA, WITH OTHER SKETCHES. BY STEPHEN J. FIELD. TO WHICH IS ADDED THE STORY OF HIS ATTEMPTED ASSASSINATION BY A FORMER ASSOCIATE ON THE SUPREME BENCH OF THE STATE. BY HON. GEORGE C. GORHAM. PRINTED FOR A FEW FRIENDS. NOT PUBLISHED. Copyright, 1893, by STEPHEN J. FIELD. * * * * * The following sketches were taken down by a stenographer in the summer of 1877, at San Francisco, from the narrative of Judge Field. They are printed at the request of a few friends, to whom they have an interest which they could not excite in others. * * * * * PERSONAL REMINISCENCES OF EARLY DAYS IN CALIFORNIA, WITH OTHER SKETCHES. INDEX. Why and how I came to California. First experiences in San Francisco.--Visit to Marysville, and elected First Alcalde of that District. Experiences as Alcalde. The Turner Controversy. Running for the Legislature. The Turner Controversy continued. Life in the Legislature. Friendship for David C. Broderick. Legislation secured and beginning a new life. The Barbour Difficulty. Removal from Marysville.--Life on the Supreme Bench.--End of Judge Turner. Career on the Supreme Bench of California, as described by Judge Baldwin. THE ANNOYANCES OF MY JUDICIAL LIFE. Rosy views of judicial life gradually vanishing.--Unsettled land titles of the State.--Asserted ownership by the State of gold and silver found in the soil.--Present of a Torpedo. Hostility to the Supreme Court after the Civil War.--The Scofield Resolution. The Moulin Vexation. The Hastings Malignity. APPENDIX. Ex. A.--Notice of departure from New York for California, November 13, 1849. Ex. B.--Aid at election of Alcalde by Wm. H. Parks.--A sketch of my opponent. Ex. C.--Oath of office as Alcalde. Ex. D.--Order of District Court imprisoning and fining me for alleged contempt of court; also Order expelling Messrs. Goodwin and Mulford and myself from the Bar; and Order imprisoning and fining Judge Haun for releasing me from imprisonment upon a writ of habeas corpus, and directing that the order to imprison me be enforced. Ex. E.--Record of Proceedings in the Court of Sessions, when attempt was made to arrest its presiding Judge; and the testimony of the Clerk of the District Court in reference to its proceedings relating to myself and Judge Haun. Ex. F.--Petition of Citizens of Marysville to the Governor to suspend Judge Turner from office 249. Ex. G.--Letters of Ira A. Eaton and A.M. Winn. Ex. H, No. I.--Letters from Surviving Members of the Legislature of 1851, who voted to indefinitely postpone the proceedings for the impeachment of Judge Turner. Ex. H, No. II.--Letter of Judge Mott on the difficulty with Judge Barbour. Ex. I.--Letter of L. Martin, the friend of Judge Barbour in his street attack. Ex. J.--Sections 4, 5, and 7 of the act of July 1, 1864, to expedite the settlement of titles to lands in California; and the act of March 8, 1866, to quiet the title to certain lands in San Francisco. Ex. K.--Letter of Judge Lake giving an account of the Torpedo. Ex. L.--Extract from the Report of the Register and Receiver of the Land-Office in the matter of the contests for lands on the Soscol Ranch * * * * * THE ATTEMPTED ASSASSINATION OF MR. JUSTICE FIELD INDEX. ATTEMPTED ASSASSINATION OF JUSTICE FIELD BY A FORMER ASSOCIATE ON THE STATE SUPREME BENCH CHAPTER I The Sharon-Hill-Terry Litigation. CHAPTER II Proceedings in the Superior Court of the State. CHAPTER III Proceedings in the United States Circuit Court. [Transcriber's note: there is no Chapter IV] CHAPTER V Decision of the Case in the Federal Court. CHAPTER VI The Marriage of Terry and Miss Hill. CHAPTER VII The Bill of Revivor. CHAPTER VIII The Terrys Imprisoned for Contempt. CHAPTER IX Terry's Petition to the Circuit Court for a Release--Its Refusal--He Appeals to the Supreme Court--Unanimous Decision against Him there. CHAPTER X President Cleveland refuses to Pardon Terry--False Statements of Terry Refuted. CHAPTER XI Terry's continued Threats to Kill Justice Field--Return of the Latter to California in 1889. CHAPTER XII Further Proceedings in the State Court.--Judge Sullivan's Decision Reversed. CHAPTER XIII Attempted Assassination of Justice Field, Resulting in Terry's own Death at the Hands of a Deputy United States Marshal. CHAPTER XIV Sarah Althea Terry Charges Justice Field and Deputy Marshal Neagle with Murder. CHAPTER XV Justice Field's Arrest and Petition for Release on Habeas Corpus. CHAPTER XVI Judge Terry's Funeral--Refusal of the Supreme Court of California to Adjourn on the Occasion. CHAPTER XVII Habeas Corpus Proceedings in Justice Field's Case. CHAPTER XVIII Habeas Corpus Proceedings in Neagle's Case. CHAPTER XIX Expressions of Public Opinion. CHAPTER XX The Appeal to the Supreme Court of the United States, and the Second Trial of Sarah Althea's Divorce Case. CHAPTER XXI Concluding Observations. * * * * * WHY AND HOW I CAME TO CALIFORNIA. Some months previous to the Mexican War, my brother David Dudley Field, of New York City, wrote two articles for the Democratic Review upon the subject of the Northwestern Boundary between the territory of the United States and the British Possessions. One of these appeared in the June, and the other in the November number of the Review for 1845.[1] While writing these articles he had occasion to examine several works on Oregon and California, and, among others, that of Greenhow, then recently published, and thus became familiar with the geography and political history of the Pacific Coast. The next Spring, and soon after the war broke out, in the course of a conversation upon its probable results, he remarked, that if he were a young man, he would go to San Francisco; that he was satisfied peace would never be concluded without our acquiring the harbor upon which it was situated; that there was no other good harbor on the coast, and that, in his opinion, that town would, at no distant day, become a great city. He also remarked that if I would go he would furnish the means, not only for the journey, but also for the purchase of land at San Francisco and in its vicinity. This conversation was the first germ of my project of coming to California. Some months afterwards, and while Col. Stevenson's regiment was preparing to start from New York for California, my brother again referred to the same subject and suggested the idea of my going out with the regiment. We had at that time a clerk in the office by the name of Sluyter, for whom I had great regard. With him I talked the matter over, it being my intention, if I should go at all, to induce him if possible to accompany me. But he wished to get married, and I wished to go to Europe. The result of our conference was, that the California project was deferred, with the understanding, however, that after my return from Europe we should give it further consideration. But the idea of going to California thus suggested, made a powerful impression upon my mind. It pleased me. There was a smack of adventure in it. The going to a country comparatively unknown and taking a part in fashioning its institutions, was an attractive subject of contemplation. I had always thought that the most desirable fame a man could acquire was that of being the founder of a State, or of exerting a powerful influence for good upon its destinies; and the more I thought of the new territory about to fall into our hands beyond the Sierra Nevada, the more I was fascinated with the idea of settling there and growing up with it. But I was anxious first to visit, or rather to revisit, Europe. I was not able, however, to make the necessary arrangements to do so until the Summer of 1848. On the first of May of that year, I dissolved partnership with my brother, and in June started for Europe. In the following December, while at Galignani's News Room in Paris, I read in the New York Herald the message of President Polk, which confirmed previous reports, that gold had been discovered in California, then recently acquired. It is difficult to describe the effect which that message produced upon my mind. I read and re-read it, and the suggestion of my brother to go to that country recurred to me, and I felt some regret that I had not followed it. I remained in Europe, however, and carried out my original plan of seeing its most interesting cities, and returned to the United States in 1849, arriving at New York on the 1st of October of that year. There was already at that early period a steamer leaving that city once or twice every month for Chagres. It went crowded every trip. The impulse which had been started in me by my brother in 1846, strengthened by the message of President Polk, had now become irresistible. I joined the throng, and on November 13th, 1849, took passage on the "Crescent City;" and in about a week's time, in company with many others, I found myself at the little old Spanish-American town of Chagres, on the Isthmus of Panama. There we took small boats and were poled up the river by Indians to Cruces, at which place we mounted mules and rode over the mountain to Panama. There I found a crowd of persons in every degree of excitement, waiting for passage to California. There were thousands of them. Those who came on the "Crescent City" had engaged passage on the Pacific side also; but such was the demand among the multitude at Panama for the means of transportation, that some of the steerage passengers sold their tickets from that place to San Francisco for $750 apiece and took their chances of getting on cheaper. These sales, notwithstanding they appeared at the time to be great bargains, proved, in most cases, to be very unfortunate transactions; for the poor fellows who thus sold their tickets, besides losing their time, exposed themselves to the malaria of an unhealthy coast. There was in fact a good deal of sickness already among those on the Isthmus, and many deaths afterwards occurred; and among those who survived there was much suffering before they could get away. The vessel that conveyed us, and by "us" I mean the passengers of the "Crescent City," and as many others as could by any possibility procure passage from Panama to San Francisco was the old steamer "California." She was about one thousand tons burden; but probably no ship of two thousand ever carried a greater number of passengers on a long voyage. When we came to get under way, there did not seem to be any spare space from stem to stern. There were over twelve hundred persons on board, as I was informed.[2] Unfortunately many of them carried with them the seeds of disease. The infection contracted under a tropical sun, being aggravated by hardships, insufficient food, and the crowded condition of the steamer, developed as the voyage proceeded. Panama fever in its worst form broke out; and it was not long before the main deck was literally covered with the sick. There was a physician attached to the ship; but unfortunately he was also prostrated. The condition of things was very sad and painful. Among the passengers taken sick were two by the name of Gregory Yale and Stephen Smith; and I turned myself into a nurse and took care of them. Mr. Yale, a gentleman of high attainments, and who afterwards occupied a prominent place at the bar of the State, was for a portion of the time dangerously ill, and I believe that but for my attentions he would have died. He himself was of this opinion, and afterwards expressed his appreciation of my attention in every way he could. In the many years I knew him he never failed to do me a kindness whenever an opportunity presented. Finally, on the evening of December 28, 1849, after a passage of twenty-two days from Panama, we reached San Francisco, and landed between eight and nine o'clock that night. [1] The first article was entitled "The Oregon Question," and the second "The Edinburgh and Foreign Quarterly on the Oregon Question." [2] NOTE.--The number of passengers reported to the journals of San Francisco on the arrival of the steamer was much less than this, probably to avoid drawing attention to the violation of the statute which restricted the number. FIRST EXPERIENCES IN SAN FRANCISCO. Upon landing from the steamer, my baggage consisted of two trunks, and I had only the sum of ten dollars in my pocket. I might, perhaps, have carried one trunk, but I could not manage two; so I was compelled to pay out seven of my ten dollars to have them taken to a room in an old adobe building on the west side of what is now known as Portsmouth Square. This room was about ten feet long by eight feet wide, and had a bed in it. For its occupation the sum of $35 a week was charged. Two of my fellow-passengers and myself engaged it. They took the bed, and I took the floor. I do not think they had much the advantage on the score of comfort. The next morning I started out early with three dollars in my pocket. I hunted, up a restaurant and ordered the cheapest breakfast I could get. It cost me two dollars. A solitary dollar was, therefore, all the money in the world I had left, but I was in no respect despondent over my financial condition. It was a beautiful day, much like an Indian Summer day in the East, but finer. There was something exhilarating and exciting in the atmosphere which made everybody cheerful and buoyant. As I walked along the streets, I met a great many persons I had known in New York, and they all seemed to be in the highest spirits. Every one in greeting me, said "It is a glorious country," or "Isn't it a glorious country?" or "Did you ever see a more glorious country?" or something to that effect. In every case the word "glorious" was sure to come out. There was something infectious in the use of the word, or rather in the feeling, which made its use natural. I had not been out many hours that morning before I caught the infection; and though I had but a single dollar in my pocket and no business whatever, and did not know where I was to get the next meal, I found myself saying to everybody I met, "It is a glorious country." The city presented an appearance which, to me, who had witnessed some curious scenes in the course of my travels, was singularly strange and wild. The Bay then washed what is now the east side of Montgomery street, between Jackson and Sacramento streets; and the sides of the hills sloping back from the water were covered with buildings of various kinds, some just begun, a few completed,--all, however, of the rudest sort, the greater number being merely canvas sheds. The locality then called Happy Valley, where Mission and Howard streets now are, between Market and Folsom streets, was occupied in a similar way. The streets were filled with people, it seemed to me, from every nation under Heaven, all wearing their peculiar costumes. The majority of them were from the States; and each State had furnished specimens of every type within its borders. Every country of Europe had its representatives; and wanderers without a country were there in great numbers. There were also Chilians, Sonorians, Kanakas from the Sandwich Islands, and Chinese from Canton and Hong Kong. All seemed, in hurrying to and fro, to be busily occupied and in a state of pleasurable excitement. Everything needed for their wants; food, clothing, and lodging-quarters, and everything required for transportation and mining, were in urgent demand and obtained extravagant prices. Yet no one seemed to complain of the charges made. There was an apparent disdain of all attempts to cheapen articles and reduce prices. News from the East was eagerly sought from all new comers. Newspapers from New York were sold at a dollar apiece. I had a bundle of them, and seeing the price paid for such papers, I gave them to a fellow-passenger, telling him he might have half he could get for them. There were sixty-four numbers, if I recollect aright, and the third day after our arrival, to my astonishment he handed me thirty-two dollars, stating that he had sold them all at a dollar apiece. Nearly everything else brought a similarly extravagant price. And this reminds me of an experience of my own with some chamois skins. Before I left New York, I purchased a lot of stationery and the usual accompaniments of a writing-table, as I intended to practise my profession in California. The stationer, learning from some remark made by my brother Cyrus, who was with me at the time, that I intended to go to California, said that I ought to buy some chamois skins in which to wrap the stationery, as they would be needed there to make bags for carrying gold-dust. Upon this suggestion, I bought a dozen skins for ten dollars. On unpacking my trunk, in Marysville, these chamois skins were of course exposed, and a gentleman calling at the tent, which I then occupied, asked me what I would take for them. I answered by inquiring what he would give for them. He replied at once, an ounce apiece. My astonishment nearly choked me, for an ounce was taken for sixteen dollars; at the mint, it often yielded eighteen or nineteen dollars in coin. I, of course, let the skins go, and blessed the hunter who brought the chamois down. The purchaser made bags of the skins, and the profit to him from their sale amounted to two ounces on each skin. From this transaction, the story arose that I had sold porte-monnaies in Marysville before practising law, which is reported in the interesting book of Messrs. Barry and Patten, entitled "Men and Memories of San Francisco in the Spring of 1850." The story has no other foundation. But I am digressing from the narrative of my first experience in San Francisco. After taking my breakfast, as already stated, the first thing I noticed was a small building in the Plaza, near which a crowd was gathered. Upon inquiry, I was told it was the court-house. I at once started for the building, and on entering it, found that Judge Almond, of the San Francisco District, was holding what was known as the Court of First Instance, and that a case was on trial. To my astonishment I saw two of my fellow-passengers, who had landed the night before, sitting on the jury. This seemed so strange that I waited till the case was over, and then inquired how it happened they were there. They said that they had been attracted to the building by the crowd, just as I had been, and that while looking on the proceedings of the court the sheriff had summoned them. They replied to the summons, that they had only just arrived in the country. But he said that fact made no difference; nobody had been in the country three months. They added that they had received eight dollars each for their services. At this piece of news I thought of my solitary dollar, and wondered if similar good fortune might not happen to me. So I lingered in the court-room, placing myself near the sheriff in the hope that on another jury he might summon me. But it was not my good luck. So I left the temple of justice and strolled around the busy city, enjoying myself with the novelty of everything. Passing down Clay street, and near Kearney street, my attention was attracted by a sign in large letters, "Jonathan D. Stevenson, Gold Dust Bought and Sold Here." As I saw this inscription I exclaimed, "Hallo, here is good luck," for I suddenly recollected that when I left New York my brother Dudley had handed me a note against Stevenson for $350 or $400; stating that he understood the Colonel had become rich in California, and telling me, that if such were the case, to ask him to pay the note. I had put the paper in my pocket-book and thought no more of it until the sight of the sign brought it to my recollection, and also reminded me of my solitary dollar. Of course I immediately entered the office to see the Colonel. He had known me very well in New York, and was apparently delighted to see me, for he gave me a most cordial greeting. After some inquiries about friends in New York, he commenced talking about the country. "Ah," he continued, "it is a glorious country. I have made two hundred thousand dollars." This was more than I could stand. I had already given him a long shake of the hand but I could not resist the impulse to shake his hand again, thinking all the time of my financial condition. So I seized his hand again and shook it vigorously, assuring him that I was delighted to hear of his good luck. We talked over the matter, and in my enthusiasm I shook his hand a third time, expressing my satisfaction at his good fortune. We passed a long time together, he dilating all the while upon the fine country it was in which to make money. At length I pulled out the note and presented it to him. I shall never forget the sudden change, from wreaths of smiles to an elongation of physiognomy, expressive of mingled surprise and disgust, which came over his features on seeing that note. He took it in his hands and examined it carefully; he turned it over and looked at its back, and then at its face again, and then, as it were, at both sides at once. At last he said in a sharp tone, "That's my signature," and began to calculate the interest; that ascertained, he paid me the full amount due. If I remember rightly he paid me $440 in Spanish doubloons, but some of it may have been in gold dust. If it had not been for this lucky incident, I should have been penniless before night. The good fortune which the Colonel then enjoyed has not always attended him since. The greater part of his property he lost some years afterwards, but he has always retained, and now in his seventy-eighth year[1] still retains, great energy and vigor of mind, and a manly independence of character, which have made him warm friends. In all the changes of my life his name is pleasantly associated with the payment of the note, and the timely assistance which he thus gave me. His career as commander of the well-known regiment of New York volunteers which arrived in California in March, 1847, and subsequently in the State, are matters of public history. As soon as I found myself in funds I hired a room as an office at the corner of Montgomery and Clay streets for one month for $300, payable in advance. It was a small room, about fifteen feet by twenty. I then put out my shingle as attorney and counsellor-at-law, and waited for clients; but none came. One day a fellow-passenger requested me to draw a deed, for which I charged him an ounce. He thought that too much, so I compromised and took half an ounce. For two weeks this was the only call I had upon my professional abilities. But I was in no way discouraged. To tell the truth I was hardly fit for business. I was too much excited by the stirring life around me. There was so much to hear and see that I spent half my time in the streets and saloons talking with people from the mines, in which I was greatly interested. I felt sure that there would soon be occasion in that quarter for my services. Whilst I was excited over the news which was daily brought from the mines in the interior of the State, and particularly from the northern part, an incident occurred which determined my future career in California. I had brought from New York several letters of introduction to persons who had preceded me to the new country, and among them one to the mercantile firm of Simmons, Hutchinson & Co., of San Francisco, upon whom I called. They received me cordially, and inquired particularly of my intentions as to residence and business. They stated that there was a town at the head of river navigation, at the junction of Sacramento and Feather Rivers, which offered inducements to a young lawyer. They called it Vernon, and said they owned some lots in it which they would sell to me. I replied that I had no money. That made no difference, they said; they would let me have them on credit; they desired to build up the town and would let the lots go cheap to encourage its settlement. They added that they owned the steamer "McKim," going the next day to Sacramento, and they offered me a ticket in her for that place, which they represented to be not far from Vernon. Accordingly I took the ticket, and on January 12th, 1850, left for Sacramento, where I arrived the next morning. It was the time of the great flood of that year, and the entire upper country seemed to be under water. Upon reaching the landing place at Sacramento, we took a small boat and rowed to the hotel. There I found a great crowd of earnest and enthusiastic people, all talking about California, and in the highest spirits. In fact I did not meet with any one who did not speak in glowing terms of the country and anticipate a sudden acquisition of fortune. I had already caught the infection myself, and these new crowds and their enthusiasm increased my excitement. The exuberance of my spirits was marvelous. The next day I took the little steamer "Lawrence," for Vernon, which was so heavily laden as to be only eighteen inches out of water; and the passengers, who amounted to a large number, were requested not to move about the deck, but to keep as quiet as possible. In three or four hours after leaving Sacramento, the Captain suddenly cried out with great energy, "Stop her! stop her!"; and with some difficulty the boat escaped running into what seemed to be a solitary house standing in a vast lake of water. I asked what place that was, and was answered, "Vernon,"--the town where I had been advised to settle as affording a good opening for a young lawyer. I turned to the Captain and said, I believed I would not put out my shingle at Vernon just yet, but would go further on. The next place we stopped at was Nicolaus, and the following day we arrived at a place called Nye's Ranch, near the junction of Feather and Yuba Rivers. No sooner had the vessel struck the landing at Nye's Ranch than all the passengers, some forty or fifty in number, as if moved by a common impulse, started for an old adobe building, which stood upon the bank of the river, and near which were numerous tents. Judging by the number of the tents, there must have been from five hundred to a thousand people there. When we reached the adobe and entered the principal room, we saw a map spread out upon the counter, containing the plan of a town, which was called "Yubaville," and a man standing behind it, crying out, "Gentlemen, put your names down; put your names down, all you that want lots." He seemed to address himself to me, and I asked the price of the lots. He answered, "Two hundred and fifty dollars each for lots 80 by 160 feet." I replied, "But, suppose a man puts his name down and afterwards don't want the lots?" He rejoined, "Oh, you need not take them if you don't want them: put your names down, gentlemen, you that want lots." I took him at his word and wrote my name down for sixty-five lots, aggregating in all $16,250. This produced a great sensation. To the best of my recollection I had only about twenty dollars left of what Col. Stevenson had paid me; but it was immediately noised about that a great capitalist had come up from San Francisco to invest in lots in the rising town. The consequence was that the proprietors of the place waited upon me and showed me great attention. Two of the proprietors were French gentlemen, named Covillaud and Sicard. They were delighted when they found I could speak French and insisted on showing me the town site. It was a beautiful spot, covered with live-oak trees that reminded me of the oak parks in England, and the neighborhood was lovely. I saw at once that the place, from its position at the head of practical river navigation, was destined to become an important depot for the neighboring mines, and that its beauty and salubrity would render it a pleasant place for residence. In return for the civilities shown me by Mr. Covillaud, and learning that he read English, I handed him some New York papers I had with me, and among them a copy of the New York "Evening Post" of November 13th, 1849, which happened to contain a notice of my departure for California with an expression of good wishes for my success.[2] The next day Mr. Covillaud came to me and in an excited manner said: "Ah, Monsieur, are you the Monsieur Field, the lawyer from New York, mentioned in this paper?" I took the paper and looked at the notice with apparent surprise that it was marked, though I had myself drawn a pencil line around it, and replied, meekly and modestly, that I believed I was. "Well, then," he said, "we must have a deed drawn for our land." Upon making inquiries I found that the proprietors had purchased the tract upon which the town was laid out, and several leagues of land adjoining, of General--then Captain--John A. Sutter, but had not yet received a conveyance of the property. I answered that I would draw the necessary deed; and they immediately dispatched a couple of vaqueros for Captain Sutter, who lived at Hock Farm, six miles below, on Feather River. When he arrived the deed was ready for signature. It was for some leagues of land; a considerably larger tract than I had ever before put into a conveyance. But when it was signed there was no officer to take the acknowledgment of the grantor, nor an office in which it could be recorded, nearer than Sacramento. I suggested to those present on the occasion, that in a place of such fine prospects, and where there was likely in a short time to be much business and many transactions in real property, there ought to be an officer to take acknowledgments and record deeds, and a magistrate for the preservation of order and the settlement of disputes. It happened that a new house, the frame of which was brought in the steamer, was put up that day; and it was suggested by Mr. Covillaud that we should meet there that evening and celebrate the execution of the deed, and take into consideration the subject of organizing a town by the election of magistrates. When evening came the house was filled. It is true it had no floor, but the sides were boarded up and a roof was overhead, and we improvised seats out of spare planks. The proprietors sent around to the tents for something to give cheer to the meeting, and, strange as it may seem, they found two baskets of champagne. These they secured, and their contents were joyously disposed of. When the wine passed around, I was called upon and made a speech. I started out by predicting in glowing colors the prosperity of the new town, and spoke of its advantageous situation on the Feather and Yuba Rivers; how it was the most accessible point for vessels coming up from the cities of San Francisco and Sacramento, and must in time become the depot for all the trade with the northern mines. I pronounced the auriferous region lying east of the Feather River and north of the Yuba the finest and richest in the country; and I felt certain that its commerce must concentrate at the junction of those rivers. But, said I, to avail ourselves of all these advantages we must organize and establish a government, and the first thing to be done is to call an election and choose magistrates and a town council. These remarks met with general favor, and it was resolved that a public meeting should be held in front of the Adobe house the next morning, and if it approved of the project, that an election should be held at once. Accordingly, on the following morning, which was the 18th of January, 1850, a public meeting of citizens was there held, and it was resolved that a town government should be established and that there should be elected an Ayuntamiento or town council, a first and second Alcalde, (the latter to act in the absence or sickness of the former,) and a Marshal. The Alcalde was a judicial officer under the Spanish and Mexican laws, having a jurisdiction something like that of a Justice of the Peace; but in the anomalous condition of affairs in California at that time, he, as a matter of necessity, assumed and exercised very great powers. The election ordered took place in the afternoon of the same day. I had modestly whispered to different persons at the meeting in the new house the night before, that my name was mentioned by my friends for the office of Alcalde; and my nomination followed. But I was not to have the office without a struggle; an opposition candidate appeared, and an exciting election ensued. The main objection urged against me was that I was a new comer. I had been there only three days; my opponent had been there six. I beat him, however, by nine votes.[3] On the evening of the election, there was a general gathering of people at the Adobe house, the principal building of the place, to hear the official announcement of the result of the election. When this was made, some one proposed that a name should be adopted for the new town. One man suggested "Yubafield," because of its situation on the Yuba River; and another, "Yubaville," for the same reason. A third, urged the name "Circumdoro," (surrounded with gold, as he translated the word,) because there were mines in every direction round about. But there was a fourth, a solid and substantial old man, evidently of kindly domestic affections, who had come out to California to better his fortunes. He now rose and remarked that there was an American lady in the place, the wife of one of the proprietors; that her name was Mary; and that, in his opinion, her name ought to be given to the town, and it should be called, in her honor, "Marysville." No sooner had he made the suggestion, than the meeting broke out into loud hurrahs; every hat made a circle around its owner's head, and we christened the new town "Marysville," without a dissenting voice. For a few days afterwards, the town was called both Yubaville and Marysville, but the latter name was soon generally adopted, and the place is so called to this day. The lady, in whose honor it was named was Mrs. Covillaud. She was one of the survivors of the Donner party, which suffered so frightfully while crossing the Sierra Nevadas in the winter of 1846-7, and had been living in the country ever since that terrible time. With my notions of law, I did not attach much importance to the election, but I had a certificate of election made out and signed by the Inspectors, stating that at a meeting of the residents of the District of Yubaville, on the day named, an election for officers had been held, and designating the Inspectors who were appointed, the number of votes that had been cast for the office of Alcalde, and the number received by myself, and the number received by my opponent, and that as I had received a majority of all the votes cast, I was elected to that office. It was made out with all possible formality, and when completed, was sent to the Prefect of the District. This officer, a Mr. E.O. Crosby, afterwards Minister to one of the South American Republics, wrote back approving my election, and advising me to act. His advice, under the circumstances, was a matter of some moment. The new Constitution of the State had gone into effect, though it was still uncertain whether it would be recognized by Congress. Mr. Crosby, therefore, thought it best for me to procure, in addition to my commission as Alcalde, an appointment as Justice of the Peace; and through his kind offices, I obtained from Governor Burnett the proper document bearing his official seal. After my election, I went to Sacramento, and on the 22d of January, 1850, was sworn into office as first Alcalde of Yubaville, by the Judge of the Court of First Instance, as that was the name of the district in the certificate of election; but I was always designated, after the name of the town had been adopted, as First Alcalde of Marysville.[4] Captain Sutter, whose deed I had drawn, was a remarkable character. He was about five feet nine inches in height, and was thick-set. He had a large head and an open, manly face, somewhat hardened and bronzed by his life in the open air. His hair was thin and light, and he wore a mustache. He had the appearance of an old officer of the French army, with a dignified and military bearing. I subsequently became well acquainted with him, and learned both to respect and to pity him. I respected him for his intrepid courage, his gentle manners, his large heart, and his unbounded benevolence. I pitied him for his simplicity, which, while suspecting nothing wrong in others, led him to trust all who had a kind word on their lips, and made him the victim of every sharper in the country. He was a native of Switzerland and was an officer in the Swiss Guards, in the service of the King of France, in 1823, and for some years afterwards. In 1834, he emigrated to America, and had varied and strange adventures among the Indians at the West; in the Sandwich Islands, at Fort Vancouver, in Alaska, and along the Pacific Coast. In July, 1839, the vessel which he was aboard of, was stranded in the harbor of San Francisco. He then penetrated into the interior of California and founded the first white settlement in the valley of the Sacramento, on the river of that name, at the mouth of the American River, which settlement he named Helvetia. He built a fort there and gathered around it a large number of native Indians and some white settlers. In 1841, the Mexican government granted to him a tract of land eleven square leagues in extent; and, subsequently, a still larger concession was made to him by the Governor of the Department. But the Governor being afterwards expelled from the country, the concession was held to be invalid. The emigrants arriving in the country after the discovery of gold proved the ruin of his fortunes. They squatted upon his land, denied the validity of his title, cut down his timber, and drove away his cattle. Sharpers robbed him of what the squatters did not take, until at last he was stripped of everything; and, finally, he left the State, and for some years has been living with relatives in Pennsylvania. Even the stipend of $2,500, which the State of California for some years allowed him, has been withdrawn, and now in his advanced years, he is almost destitute. Yet, in his days of prosperity, he was always ready to assist others. His fort was always open to the stranger, and food, to the value of many thousand dollars, was, every year, so long as he had the means, sent out by him for the relief of emigrants crossing the plains. It is a reproach to California that she leaves the pioneer and hero destitute in his old age. [1] Col. Stevenson was born at the commencement of the century, and is therefore now, 1893, in his ninety-fourth year. [2] See Exhibit A, in Appendix. [3] See Exhibit B, in Appendix. [4] See Exhibit C, in Appendix. EXPERIENCES AS ALCALDE. Under the Mexican law, Alcaldes had, as already stated, a very limited jurisdiction. But in the anomalous condition of affairs under the American occupation, they exercised almost unlimited powers. They were, in fact, regarded as magistrates elected by the people for the sake of preserving public order and settling disputes of all kinds. In my own case, and with the approval of the community, I took jurisdiction of every case brought before me. I knew nothing of Mexican laws; did not pretend to know anything of them; but I knew that the people had elected me to act as a magistrate and looked to me for the preservation of order and the settlement of disputes; and I did my best that they should not be disappointed. I let it be known that my election had been approved by the highest authority. The first case I tried was in the street. Two men came up to me, one of them leading a horse. He said, "Mr. Alcalde, we both claim this horse, and we want you to decide which of us is entitled to it." I turned to the man who had the horse, administered an oath to him, and then examined him as to where he got the horse, of whom and when, whether he had a bill of sale, whether there was any mark or brand on the animal, and, in short, put all those questions which would naturally be asked in such a case to elicit the truth. I then administered an oath to the other man and put him through a similar examination, paying careful attention to what each said. When the examination was completed I at once decided the case. "It is very plain, gentlemen," I said, "that the horse belongs to this man (pointing to one of them) and the other must give him up." "But," said the man who had lost and who held the horse, "the bridle certainly belongs to me, he does not take the bridle, does he?" I said, "Oh no, the bridle is another matter." As soon as I said this the owner of the bridle turned to his adversary and said, "What will you take for the horse?" "Two hundred and fifty dollars," was the instant reply. "Agreed," retorted the first, and then turning to me, he continued: "And now, Mr. Alcalde, I want you to draw me up a bill of sale for this horse which will stick." I, of course, did as he desired. I charged an ounce for trying the case and an ounce for the bill of sale; charges which were promptly paid. Both parties went off perfectly satisfied. I was also well pleased with my first judicial experience. Soon after my election I went to San Francisco to get my effects; and while there I purchased, on credit, a frame house and several zinc houses, which were at once shipped to Marysville. As soon as the frame house was put up I opened my office in it, and exercised not only the functions of a magistrate and justice, but also of a supervisor of the town. I opened books for the record of deeds and kept a registry of conveyances in the district. I had the banks of the river graded so as to facilitate the landing from vessels. The marshal of my court, elected at the same time with myself, having refused to act, I appointed an active and courageous person in his place, R.B. Buchanan by name, and directed him to see that peace was preserved, and for that purpose to appoint as many deputies as might be necessary. He did so, and order and peace were preserved throughout the district, not only in Marysville, but for miles around. As a judicial officer, I tried many cases, both civil and criminal, and I dictated the form of process suited to the exigency. Thus, when a complaint was made to me by the owner of a river boat, that the steamer, which plied between Marysville and Sacramento, had run down his boat, by which a part of its cargo was lost, I at once dictated process to the marshal, in which the alleged injury was recited, and he was directed to seize the steamer, and hold it until further orders, unless the captain or owner gave security to appear in the action commenced by the owner of the boat, and pay any judgment that might be recovered therein. Upon service of the process the captain appeared, gave the required security, and the case was immediately tried. Judgment was rendered and paid within five hours after the commission of the injury. In civil cases, I always called a jury, if the parties desired one; and in criminal cases, when the offence was of a high grade, I went through the form of calling a grand jury, and having an indictment found; and in all cases I appointed an attorney to represent the people, and also the accused, when necessary. The Americans in the country had a general notion of what was required for the preservation of order and the due administration of justice; and as I endeavored to administer justice promptly, but upon a due consideration of the rights of every one, and not rashly, I was sustained with great unanimity by the community. I have reported a civil case tried before me as Alcalde. I will now give a few criminal prosecutions and their circumstances. One morning, about five o'clock, a man tapped at my window, and cried, "Alcalde, Alcalde, there has been a robbery, and you are wanted." I got up at once, and while I was dressing he told his story. Nearly every one in those days lived in a tent and had his gold dust with him. The man, who proved to be Gildersleeve, the famous runner, upon going to bed the previous evening had placed several pounds of gold dust in his trunk, which was not locked. In the night some one had cut through his tent and taken the gold dust. I asked him if he suspected anybody; and he named two men, and gave such reasons for his suspicion that I immediately dictated a warrant for their arrest; and in a short time the two men were arrested and brought before me. The gold dust was found on one of them. I immediately called a grand jury, by whom he was indicted. I then called a petit jury, and assigned counsel for the prisoner. He was immediately placed upon his trial, and was convicted. The whole proceeding occupied only a part of the day. There was a great crowd and much excitement, and some talk of lynching. Curiously enough, my real trouble did not commence until after the conviction. What was to be done with the prisoner? How was he to be punished? Imposing a fine would not answer; and, if he had been discharged, the crowd would have immediately hung him. When at San Francisco, Mayor Geary, of that place, told me if I would send my convicts to him, with money enough to pay for a ball and chain for each one, he would put them in the chain-gang. But at that time the price of passage by steamer from Marysville to San Francisco was fifty dollars, which, with the expense of an officer to accompany the prisoner, and the price of a ball and chain, would have amounted to a much larger sum than the prosecution could afford; so it was clearly impracticable to think of sending him to San Francisco. Nor is it at all likely that the people would have consented to his removal. Under these circumstances there was but one course to pursue, and, however repugnant it was to my feelings to adopt it, I believe it was the only thing that saved the man's life. I ordered him to be publicly whipped with fifty lashes, and added that if he were found, within the next two years, in the vicinity of Marysville, he should be again whipped. I, however, privately ordered a physician to be present so as to see that no unnecessary severity was practiced. In accordance with this sentence, the fellow was immediately taken out and flogged; and that was the last seen of him in that region. He went off and never came back. The latter part of the sentence, however, was supererogatory; for there was something so degrading in a public whipping, that I have never known a man thus whipped who would stay longer than he could help, or ever desire to return. However this may have been, the sense of justice of the community was satisfied. No blood had been shed; there had been no hanging; yet a severe public example had been given. On another occasion a complaint was made that a man had stolen fifteen hundred dollars from a woman. He was arrested, brought before me, indicted, tried, and convicted. I had the same compunctions about punishment as before, but, as there was no other course, I ordered him to receive fifty lashes on his back on two successive days, unless he gave up the money, in which case he was to receive only fifty lashes. As soon as the sentence was written down the marshal marched the prisoner out to a tree, made him hug the tree, and in the presence of the crowd that followed, began inflicting the lashes. The man stood it for awhile without flinching, but when he had received the twenty-second lash he cried out, "Stop, for God's sake, and I will tell you where the money is." The marshal stopped and, accompanied by the crowd, took the man to the place indicated, where the money was recovered; and the thief was then made to carry it back to the woman and apologize for stealing it. The marshal then consulted the sentence, and, finding that it prescribed fifty lashes at any rate, he marched the wretch back to the tree and gave him the balance, which was his due. But the case which made the greatest impression upon the people, and did more to confirm my authority than anything else, was the following: There was a military encampment of United States soldiers on Bear River, about fifteen miles from Marysville, known as "Camp Far West." One day an application was made to me to issue a warrant for the arrest of one of the soldiers for a larceny he had committed. It was stated that a complaint had been laid before the local Alcalde near the camp; but that the officer in charge had refused to give up the soldier unless a warrant for that purpose were issued by me, it being the general impression that I was the only duly commissioned Alcalde in the district above Sacramento. On this showing I issued my warrant, and a lieutenant of the army brought the soldier over. The soldier was indicted, tried, convicted, and sentenced to be publicly whipped with the usual number of lashes, and the officer stood by and saw the punishment inflicted. He then took the soldier back to camp, where it was afterwards reported that he received an additional punishment. But before the lieutenant left me that day, and while we were dining together, he took occasion to say that, if at any time I had any trouble in enforcing the law, I had but to send him word and he would order out a company of troops to support me. This offer I permitted to become known through the town; and people said--and with what effect may be imagined--"Why here is an Alcalde that has the troops of the United States at his back." I have already stated that I had the banks of the Yuba River graded so as to facilitate the landing from vessels. I will now mention another instance of my administration as general supervisor of the town. There were several squatters on the landing at the river, which, according to the plan of the town, was several hundred feet wide. The lots fronting on this landing being the best for business, commanded the highest prices. But on account of the squatters the owners were deprived of the benefit of the open ground of the landing in front of their property, and they complained to me. I called upon the squatters and told them that they must leave, and that if they were not gone by a certain time, I should be compelled to remove them by force, and, if necessary, to call to my aid the troops of the United States. This was enough; the squatters left, the landing was cleared, and business went on smoothly. In addition to my ordinary duties as a judicial officer and as general supervisor of the town, I acted as arbitrator in a great number of controversies which arose between the citizens. In such cases the parties generally came to my office together and stated that they had agreed to leave the matter in dispute between them to my decision. I immediately heard their respective statements--sometimes under oath, and sometimes without oath--and decided the matter at once. The whole matter was disposed of without any written proceedings, except in some instances I gave to parties a memorandum of my decision. Thus on one occasion a dispute arose as to the rate of wages, between several workmen and their employer; the workmen insisting upon twelve dollars a day and the employer refusing to give more than ten. To settle the dispute they agreed to leave the matter to me. I heard their respective statements, and after stating that both of them ought to suffer a little for not having made a specific contract at the outset, decided that the workingmen should receive eleven dollars a day, with which both appeared to be well satisfied. On another occasion parties disputed as to whether freight on a box of crockery should be charged by measurement or by weight, a specific contract having been made that all articles shipped by the owner should be carried at a fixed price per hundred pounds. They agreed to leave the matter to my determination, and I settled it in five minutes. Again, on one occasion a woman, apparently about fifty-six, rushed into my office under great excitement, exclaiming that she wanted a divorce from her husband, who had treated her shamefully. A few moments afterwards the husband followed, and he also wanted relief from the bonds of matrimony. I heard their respective complaints, and finding that they had children, I persuaded them to make peace, kiss, and forgive; and so they left my office arm-in-arm, each having promised the other never to do so again, amid the applause of the spectators. In this way I carried out my conception of the good Cadi of the village, from which term (Al Cadi) my own official designation, Alcalde, was derived. To make a long story short, until I was superseded by officers under the State government, I superintended municipal affairs and administered justice in Marysville with success. Whilst there was a large number of residents there of high character and culture, who would have done honor to any city, there were also unfortunately many desperate persons, gamblers, black-legs, thieves, and cut-throats; yet the place was as orderly as a New England village. There were no disturbances at night, no riots, and no lynching. It was the model town of the whole country for peacefulness and respect for law. And now a word about my speculations. In a short time after going to Marysville and writing my name down for sixty-five town lots, property increased ten-fold in value. Within ninety days I sold over $25,000 worth, and still had most of my lots left. My frame and zinc houses brought me a rental of over $1,000 a month. The emoluments of my office of Alcalde were also large. In criminal cases I received nothing for my services as judge, and in civil cases the fees were small; but as an officer to take acknowledgments and affidavits and record deeds, the fees I received amounted to a large sum. At one time I had $14,000 in gold dust in my safe, besides the rentals and other property. One day whilst I was Alcalde, a bright-looking lad, with red cheeks and apparently about seventeen years of age, came into the office and asked if I did not want a clerk. I said I did, and would willingly give $200 a month for a good one; but that I had written to Sacramento and was expecting one from there. The young man suggested that perhaps the one from Sacramento would not come or might be delayed, and he would like to take the place in the meanwhile. I replied, very well, if he was willing to act until the other arrived, he might do so. And thereupon he took hold and commenced work. Three days afterwards the man from Sacramento arrived; but in the meanwhile I had become so much pleased with the brightness and quickness of my young clerk that I would not part with him. That young clerk was George C. Gorham, the present Secretary of the United States Senate. I remember him distinctly as he first appeared to me, with red and rosy cheeks. His quickness of comprehension was really wonderful. Give him half an idea of what was wanted, and he would complete it as it were by intuition. I remember on one occasion he wanted to know what was necessary for a marriage settlement. I asked him why. He replied that he had been employed by a French lady to prepare such a settlement, and was to receive twenty-five dollars for the instrument. I gave him some suggestions, but added that he had better let me see the document after he had written it. In a short time afterwards he brought it to me, and I was astonished to find it so nearly perfect. There was only one correction to make. And thus ready I always found him. With the most general directions he would execute everything committed to his charge, and usually with perfect correctness. He remained with me several months, and acted as clerk of my Alcalde court, and years afterwards, at different times was a clerk in my office. When I went upon the bench of the Supreme Court, I appointed him clerk of the Circuit Court of the United States for the District of California, and, with the exception of the period during which he acted as secretary of Gov. Low, he remained as such clerk until he was nominated for the office of governor of the State, when he resigned. Through the twenty-seven years of our acquaintance, from 1850 to the present time, July, 1877, his friendship and esteem have been sincere and cordial, which no personal abuse of me could change and no political differences between us could alienate. His worldly possessions would have been more abundant had he pursued the profession of the law, which I urged him to do; and his success as a public man would have been greater, had he been more conciliatory to those who differed from him in opinion. THE TURNER CONTROVERSY. Towards the end of May, 1850, William E. Turner, who had been appointed Judge of the Eighth Judicial District of the State by the first Legislature which convened under the Constitution, made his appearance and announced that he intended to open the District Court at Marysville on the first Monday of the next month. We were all pleased with the prospect of having a regular court and endeavored, as far as lay in our power, to make the stay of the Judge with us agreeable. I had been in the habit of receiving a package of New York newspapers by every steamer, and among them came copies of the New York "Evening Post," which was at that time the organ of the so-called Free-soil party. When Judge Turner arrived, I waited on him to pay my respects, and sent him the various newspapers I had received. He had lived for years in Texas, and, as it proved, was a man of narrow mind and bitter prejudices. He seems to have had a special prejudice against New Yorkers and regarded a Free-soiler as an abomination. I have been told, and I believe such to be the fact, that my sending him these newspapers, and particularly the "Evening Post," led him to believe that I was an "Abolitionist"--a person held in special abhorrence in those days by gentlemen from the South. At any rate he conceived a violent dislike of me, which was destined in a short time to show itself and cause me great annoyance. What was intended on my part as an act of courtesy, turned out to be the beginning of a long, bitter, and on his part, ferocious quarrel. At that time my affairs were in a very prosperous condition, as I have already stated. I had $14,000 in gold dust, a rental of over a thousand dollars a month, and a large amount of city property constantly increasing in value. Such being the case, I thought I would go East on a visit, and accordingly began making arrangements to leave. But shortly before the opening of the June term of the District Court, Captain Sutter came to me and told me he had been sued by a man named Cameron, and wished me to appear as his counsel. I answered that I was making arrangements to go East and he had better retain some one else. He replied that I ought to remain long enough to appear for him and assist his attorney, and begged of me as an act of friendship to do so. I finally consented, and deferred my departure. Soon after the opening of the court, some time during the first week, the case of Captain Sutter was called. A preliminary motion, made by his attorney, was decided against him. Mr. Jesse O. Goodwin, a member of the bar, sitting near, said to me that the practice act, passed at the recent session of the Legislature, contained a section bearing upon the question; and at the same time handed me the act. I immediately rose, and addressing the court, remarked that I was informed there was a statutory provision applicable to the point, and begged permission to read it; and commenced turning over the pages of the act in search of it, when Judge Turner, addressing me and apparently irritated, said in a petulant manner;--"The court knows the law--the mind of the court is made up--take your seat, sir." I was amazed at hearing such language; but in a respectful and quiet manner stated that I excepted to the decision, and appealed, or would appeal from the order. The Judge instantly replied, in a loud and boisterous manner, "Fine that gentleman two hundred dollars." I replied quietly, "Very well," or "Well, sir." He immediately added, in an angry tone, "I fine him three hundred dollars, and commit him to the custody of the sheriff eight hours." I again replied, "Very well." He instantly exclaimed, in the same violent manner, "I fine him four hundred dollars and commit him twelve hours." I then said that it was my right by statute to appeal from any order of his honor, and that it was no contempt of court to give notice of an exception or an appeal, and asked the members of the bar present if it could be so regarded. But the Judge, being very ignorant of the practice of the law, regarded an exception to his decision as an impeachment of his judgment, and, therefore, something like a personal affront. And so, upon my statement, he flew into a perfect rage, and in a loud and boisterous tone cried out, "I fine him five hundred dollars and commit him twenty-four hours--forty-eight hours--turn him out of court--subpoena a posse--subpoena me." I then left the court-room. The attorney in the case accompanied me, and we were followed by the deputy sheriff. After going a few steps we met the coroner, to whom the deputy sheriff transferred me; and the coroner accompanied me to my office, and after remaining there a few moments left me to myself. On the way an incident occurred, which probably inflamed Judge Turner against me more than anything else that could have happened. The attorney, who was much exasperated at the conduct of the Judge, said to me as we met the coroner, "Never mind what the Judge does; he is an old fool." I replied, "Yes, he is an old jackass." This was said in an ordinary conversational tone; but a man by the name of Captain Powers, with whom Turner boarded, happened to overhear it, and running to the court-house, and opening the door, he hallooed out, "Judge Turner! oh, Judge Turner! Judge Field says you are an old jackass." A shout followed, and the Judge seemed puzzled whether or not he should send an officer after me, or punish his excitable friend for repeating my language. I remained in my office the remainder of the day, and many people who were present in court, or heard of what had occurred, called to see me. I immediately wrote out a full statement of everything that happened in the court-room, and had it verified by a number of persons who were eye and ear witnesses of the affair. Towards evening the deputy sheriff met the Judge, who asked him what he had done with me. The deputy answered that I had gone to my office and was still there. The Judge said, "Go and put him under lock and key, and, if necessary, put him in irons." The deputy came to me and said, "The Judge has sent me to put you under lock and key; let me turn the key upon you in your own office." At this I became indignant, and asked for his warrant or commitment to hold me. He replied that he had none, that only a verbal order was given to him by the Judge in the street. I then told him he must go away from me and leave me alone. He replied that, "as he was acting by the orders of the sheriff, whose deputy he was, in obeying the Judge, he must do as he had been directed." He added, "I will lock the door anyway," and doing so he went off. I immediately sued out a writ of habeas corpus returnable before Henry P. Haun, the County Judge. The writ was executed forthwith, and the same evening I was taken before the Judge. There was a great crowd present. I called the sheriff to the stand and asked him if he had any writ, process, commitment, or order by which he held me in custody. He replied that he had none. I then put on the stand Samuel B. Mulford and Jesse O. Goodwin and several others, who were present in the District Court where the scenes narrated had occurred, and they testified that there was nothing disrespectful in my language or manner; that I had not used an expression at which anybody could justly take offence; and that they had been utterly surprised at the conduct of the Judge, which was violent and tyrannical; and that they saw no possible excuse for it. This testimony was of course of no consequence on the question presented by the habeas corpus; because, as there was no order or warrant for my arrest in the possession of the officer, I could not, under any circumstances, be held; but I wished to show my friends, who had not been present in the court-room, the facts of the case. I was of course at once discharged. But the matter did not end there. An excited crowd was present, and as I left the court-room they cheered enthusiastically. I thereupon invited them to the Covillaud House, a public house in the town, and directed the keeper to dispense to them the good things of his bar. The champagne was accordingly uncorked without stint, and the best Havana boxes were soon emptied of their most fragrant cigars. A bill of $290 paid the next day settled the account. Whilst the boys were thus enjoying themselves, Judge Turner, who was not far off, entered the Covillaud House, perfectly furious, and applied obscene and vile epithets to the County Judge, declaring with an oath that he would teach "that fellow" that he was an inferior judge, and that the witnesses before him were a set of "perjured scoundrels" who should be expelled from the bar. Similar threats were made by him in different saloons in the town, to the disgust of every one. That evening he was burned in effigy in the public plaza. I had nothing to do with that act, and did not approve of it. I did not know then, and do not know to this day who were engaged in it. He attributed it to me, however, and his exasperation towards me in consequence became a malignant fury. On the Monday following, June 10th, which was the first day on which the court was held after the scenes narrated, Judge Turner, on the opening of the court, before the minutes of the previous session were read, and without notice to the parties, or any hearing of them, although they were present at the time, ordered that Judge Haun be fined fifty dollars and be imprisoned forty-eight hours for his judicial act in discharging me from arrest, under some pretence that the order of the court had been thus obstructed by him. At the same time he ordered that I should be re-imprisoned, and that Mr. Mulford, Mr. Goodwin, and myself should be expelled from the bar; myself for suing out the writ, and those two gentlemen for being witnesses on its return, under the pretence that we had "vilified the court and denounced its proceedings." Judge Haun paid his fine and left the court-room, and I was again taken into custody by the sheriff.[1] It happened to be the day appointed by law for the opening of the Court of Sessions of the county, over which the County Judge presided. Judge Haun proceeded from the District Court to the room engaged for the Court of Sessions, and there, in connection with an associate justice, opened that court. Immediately afterwards I sued out another writ of _habeas corpus_, returnable forthwith, and whilst before the court arguing for my discharge under the writ, the sheriff entered and declared his intention of taking me out of the room, and of taking Judge Haun from the bench and putting us in confinement, pursuant to the order of Judge Turner. Judge Haun told the sheriff that the Court of Sessions was holding its regular term; that he was violating the law, and that the court must not be disturbed in its proceedings. Judge Turner was then informed that the Court of Sessions was sitting; that Judge Haun was on the bench, and that I was arguing before the court on a writ of habeas corpus. Judge Turner immediately ordered a posse to be summoned and appealed to gentlemen in the court-room to serve on it, and directed the sheriff to take Judge Haun and myself into custody by force, notwithstanding Judge Haun was on the bench, and I was arguing my case; and if necessary to put Judge Haun in irons--to handcuff him. Soon afterwards the sheriff, with a posse, entered the room of the Court of Sessions, and forced me out of it, and was proceeding to seize Judge Haun on the bench, when the Judge stepped to a closet and drew from it a navy revolver, cocked it, and, pointing it towards the sheriff, informed him in a stern manner that he was violating the law; that whilst on the bench he, the Judge, could not be arrested, and that if the sheriff attempted to do so he would kill him. At the same time he fined the sheriff for contempt of court $200, and appointed a temporary bailiff to act, and directed him to clear the court-room of the disturbers. The new bailiff summoned all the bystanders, who instantly responded, and the court-room was immediately cleared. Judge Haun then laid his revolver on a drawer before him, and inquired if there was any business ready; for if so the court would hear it. There being none, the court adjourned. I regret to be compelled to add, that notwithstanding the manly and courageous conduct which Judge Haun had thus shown, no sooner was the court adjourned than he was persuaded to make a qualified apology to the District Court for discharging me, by sending a communication to it, stating "that if he was guilty of obstructing the order of the court in releasing Field, he did it ignorantly, not intending any contempt by so doing;" and thereupon the District Court ordered that he be released from confinement, and that his fine be remitted.[2] Of course there was great excitement through the town as soon as these proceedings became known. That night nearly all Marysville came to my office. I made a speech to the people. Afterwards some of them passed in front of Turner's house, and gave him three groans. They then dispersed, and in returning home some of them fired off their pistols as a sort of finale to the proceedings of the evening. The firing was not within three hundred yards of Turner's house; but he seized hold of the fact of firing, and stated that he had been attacked in his house by an armed mob. He also charged that I had instigated the crowd to attack him, but the facts are as I have stated them. There was a great deal of feeling on the part of the people, who generally sided with me; but I did nothing to induce them to violate the law or disturb the peace. Even if I wished to do so, prudence and policy counselled otherwise. When Turner caused the names of Mulford, Goodwin, and myself, to be stricken from the roll of attorneys, we, of course, could no longer appear as counsel in his court. I at once prepared the necessary papers, and applied to the Supreme Court of the State for a mandamus to compel him to vacate the order and reinstate us. I took the ground that an attorney and counsellor, by his admission to the bar, acquired rights of which he could not be arbitrarily deprived; that he could not, under any circumstances, be expelled from the bar without charges being preferred against him and an opportunity afforded to be heard in his defence; that the proceedings of Judge Turner being ex-parte, without charges preferred, and without notice, were void; and that a mandate, directing him to vacate the order of expulsion and restore us to the bar, ought to be issued immediately. In addition, to this application, I also moved for a mandamus to him to vacate the order imposing a fine and imprisonment upon me for the alleged contempt of his court, or for such other order in the premises as might be just. I took the ground, that as the order did not show any act committed which could constitute a contempt of court, it was void on its face, and should be so declared. My old friend, Gregory Yale, assisted me in the presentation of these motions. In deciding them, the court delivered two opinions, in which these positions were sustained. They are reported under the titles of People, ex rel. Mulford et al., vs. Turner, 1 Cal., 143; and People, ex rel. Field vs. Turner, 1 Cal., 152. In the first case, a peremptory writ of mandamus was issued, directed to Judge Turner, ordering him to reinstate us as attorneys; in the second, a writ of certiorari was issued to bring up the order imposing a fine, which was subsequently reversed and vacated, as shown in Ex-parte Field, 1 Cal., 187. The opinions referred to were delivered by Judge Bennett, and are models of their kind. Many years afterwards, when a somewhat similar question came before the Supreme Court of the United States, I was called upon to announce its judgment; and in doing so, I followed these opinions, as may be seen by reference to the case of Ex-parte Robinson, 19 Wallace, 510. I there repeated substantially the doctrine of Judge Bennett, which is the only doctrine that will protect an attorney and counsellor from the tyranny of an arbitrary and capricious officer, and preserve to him his self-respect and independence. When the order for our restoration came down from the Supreme Court, Turner refused to obey it; and wrote a scurrilous "Address to the Public" about us, which he published in one of the newspapers. We replied in a sharp and bitter article, signed by ourselves and five other gentlemen; and at the same time we published a petition to the Governor, signed by all the prominent citizens of Marysville, asking for Judge Turner's removal. There was a general impression in those days that Judges appointed before the admission of the State into the Union held their offices subject to removal by the Governor. I hardly know how this impression originated, but probably in some vague notions about the powers of Mexican Governors. However this may be, such was the general notion, and in accordance with it, a petition for Turner's removal was started, and, as I have said, was very generally signed.[3] The matter had by this time assumed such a serious character, and the Judge's conduct was so atrocious, that the people became alarmed and with great unanimity demanded his deposition from office. In the article referred to as published by us, we said, after setting forth the facts, that "Judge Turner is a man of depraved tastes, of vulgar habits, of an ungovernable temper, reckless of truth when his passions are excited, and grossly incompetent to discharge the duties of his office." Unfortunately the statement was perfectly true. He refused to obey the mandate of the Supreme Court, even talked of setting that court at defiance, and went around saying that every one who had signed an affidavit against him was a "perjured villain," and that as to Goodwin, Mulford, and Field, he would "cut their ears off." He frequented the gambling saloons, associated with disreputable characters, and was addicted to habits of the most disgusting intoxication. Besides being abusive in his language, he threatened violence, and gave out that he intended to insult me publicly the first time we met, and that, if I resented his conduct, he would shoot me down on the spot. This being reported to me by various persons, I went to San Francisco and consulted Judge Bennett as to what course I ought to pursue. Judge Bennett asked if I were certain that he had made such a threat. I replied I was. "Well," said the Judge, "I will not give you any advice; but if it were my case, I think I should get a shot-gun and stand on the street, and see that I had the first shot." I replied that "I could not do that; that I would act only in self-defence." He replied, "That would be acting in self-defence." When I came to California, I came with all those notions, in respect to acts of violence, which are instilled into New England youth; if a man were rude, I would turn away from him. But I soon found that men in California were likely to take very great liberties with a person who acted in such a manner, and that the only way to get along was to hold every man responsible, and resent every trespass upon one's rights. Though I was not prepared to follow Judge Bennett's suggestion, I did purchase a pair of revolvers and had a sack-coat made with pockets in which the barrels could lie, and be discharged; and I began to practice firing the pistols from the pockets. In time I acquired considerable skill, and was able to hit a small object across the street. An object so large as a man I could have hit without difficulty. I had come to the conclusion that if I had to give up my independence; if I had to avoid a man because I was afraid he would attack me; if I had to cross the street every time I saw him coming, life itself was not worth having. Having determined neither to seek him nor to shun him, I asked a friend to carry a message to him, and to make sure that it would reach him, I told different parties what I had sent, and I was confident that they would repeat it to him. "Tell him from me," I said, "that I do not want any collision with him; that I desire to avoid all personal difficulties; but that I shall not attempt to avoid him; that I shall not cross the street on his account, nor go a step out of my way for him; that I have heard of his threats, and that if he attacks me or comes at me in a threatening manner I will kill him."[4] I acted on my plan. I often met him in the streets and in saloons, and whenever I drew near him I dropped my hand into my pocket and cocked my pistols to be ready for any emergency. People warned me to look out for him; to beware of being taken at a disadvantage; and I was constantly on my guard. I felt that I was in great danger; but after awhile this sense of danger had a sort of fascination, and I often went to places where he was, to which I would not otherwise have gone. Whenever I met him I kept my eye on him, and whenever I passed him on the street I turned around and narrowly watched him until he had gone some distance. I am persuaded if I had taken any other course, I should have been killed. I do not say Turner would have deliberately shot me down, or that he would have attempted anything against me in his sober moments; but when excited with drink, and particularly when in the presence of the lawless crowds who heard his threats, it would have taken but little to urge him on. As it turned out, however, he never interfered with me, perhaps because he knew I was armed and believed that, if I were attacked, somebody, and perhaps more than one, would be badly hurt. I have been often assured by citizens of Marysville that it was only the seeming recklessness of my conduct, and the determination I showed not to avoid him or go out of his way, that saved me. But at the same time my business was ruined. Not only was I prevented, by his refusal to obey the mandate of the Supreme Court, from appearing as an advocate, but I could not, on account of the relation I occupied towards him, practice at all; nor could I, under the circumstances, leave Marysville and make my intended visit East. Having nothing else to do, I went into speculations which failed, and in a short time--a much shorter time than it took to make my money--I lost nearly all I had acquired and became involved in debt. [1] See Exhibit D, in Appendix. [2] See Exhibit E, in Appendix. [3] See Exhibit F, in Appendix. [4] See Exhibit G, in Appendix. RUNNING FOR THE LEGISLATURE. One morning about this time I unexpectedly found myself in the newspapers, nominated by my friends as a candidate for the lower house of the Legislature. Who the friends were that named me I did not know; but the nomination opened a new field and suggested new ideas. I immediately accepted the candidacy. Judge Turner had threatened, among other things, to drive me into the Yuba River. I now turned upon him, and gave out that my object in wishing to go to the Legislature was to reform the judiciary, and, among other things, to remove him from the district. I canvassed the county thoroughly and was not backward in portraying him in his true colors. He and his associates spared no efforts to defeat me. Their great reliance consisted in creating the belief that I was an abolitionist. If that character could have been fastened upon me it would have been fatal to my hopes, for it was a term of great reproach. Yuba County then comprised the present county of that name, and also what are now Nevada and Sierra Counties. It was over a hundred miles in length and about fifty in width, and had a population of twenty-five thousand people, being the most populous mining region in the State. I visited nearly every precinct and spoke whenever I could get an audience. An incident of the canvass may not be uninteresting. I went to the town of Nevada a little more than a week before the election. As I was riding through its main street a gentleman whom I had long known, General John Anderson, hailed me, and, after passing a few words, said, "Field, you won't get fifty votes here." I asked, "Why not?" He replied, "Because everybody is for McCarty, your opponent." I said, somewhat sharply, "Anderson, I have come here to fight my own battle and I intend to carry Nevada." He laughed and I rode on. The first man I met after reaching the hotel was Captain Morgan, who afterwards commanded a steamer on the Bay of San Francisco. After talking for some time on general topics, he asked me about a story in circulation that I was an abolitionist. I saw at once the work of enemies, and I now understood the meaning of General Anderson's remark. I assured Morgan that the story was entirely false, and added; "To-morrow will be Sunday; everybody will be in town; I will then make a speech and show the people what kind of a man I am, and what my sentiments are on this and other subjects." Accordingly, the next day, in the afternoon, when the miners from the country were in town and had nothing else to do than to be amused, I mounted a platform erected for the purpose in the main street, and commenced speaking. I soon had a crowd of listeners. I began about my candidacy, and stated what I expected to do if elected. I referred to the necessity of giving greater jurisdiction to the local magistrates, in order that contests of miners respecting their claims might be tried in their vicinity. As things then existed the right to a mule could not be litigated without going to the county seat, at a cost greater than the value of the animal. I was in favor of legislation which would protect miners in their claims, and exempt their tents, rockers, and utensils used in mining from forced sale. I was in favor of dividing the county, and making Nevada the seat of the new county. I had heard of numerous measures they wanted, and I told them how many of these measures I advocated. Having got their attention and excited their interest, I referred to the charge made against me of being an abolitionist, and denounced it as a base calumny. In proof of the charge I was told that I had a brother in New York who was a free-soiler. So I had, I replied, and a noble fellow he is--God bless him wherever he may be. But I added, I have another brother who is a slaveholder in Tennessee, and with which one, I asked, in the name of all that is good, were they going to place me. I wondered if these "honorable" men, who sought by such littleness to defeat me, did not find out whether I did not have some other relatives,--women, perhaps, who believed in things unearthly and spiritual,--whose opinions they could quote to defeat me. Shame on such tactics, I said, and the crowd answered by loud cheering. I then went on to give my views of our government, of the relation between the general government of the Union and the government of the States, to show that the former was created for national purposes which the States could not well accomplish--that we might have uniformity of commercial regulations, one army and one navy, a common currency, and the same postal system, and present ourselves as one nation to foreign countries--but that all matters of domestic concern were under the control and management of the States, with which outsiders could not interfere; that slavery was a domestic institution which each State must regulate for itself, without question or interference from others. In other words, I made a speech in favor of State Rights, which went home to my hearers, who were in great numbers from the South. I closed with a picture of the future of California, and of the glories of a country bounded by two oceans. When I left the platform the cheers which followed showed that I had carried the people with me. McCarty, my opponent, followed, but his speech fell flat. Half his audience left before he had concluded. The election took place a week from the following Monday. I remained in Nevada until it was over. At the precinct in town where I had spoken, I had between three and four hundred majority, and in another precinct in the outskirts I had a majority of two to one. In the county generally I ran well, and was elected, notwithstanding the fact that I was not the nominee of any convention or the candidate of any party. The morning following the election, as I was leaving Nevada, I rode by the store of General Anderson, and hailing him, inquired what he thought now of my getting fifty votes in the town. "Well," he replied, "it was that Sunday speech of yours which did the business. McCarty could not answer it." There was one thing in the election which I regretted, and that was that I did not carry Marysville; a majority of the votes of its citizens was cast for my opponent. It is true that there the greater number of gamblers and low characters of the county were gathered, but the better class predominated in numbers, and I looked with confidence to its support. My regret, however, was sensibly diminished when I learned the cause of the failure of a portion of the people to give me their votes. Some few weeks previous to the day of election a man was killed in the street by a person by the name of Keiger, who was immediately arrested. The person killed was about leaving the State, and owed a small debt to Keiger, which he refused either to pay or to give security for its payment. Exasperated by his refusal, Keiger drew a pistol and shot him. I was sent for by an acquaintance of Keiger to attend his examination before the local magistrate, by whom he was held for the action of the grand jury. In the afternoon of the same day a large crowd assembled in the streets, with the purpose of proceeding to the summary execution of Keiger. Whilst the people were in a great state of excitement I made a speech to them, begging them not to resort to violence and thus cast reproach upon the good name of Marysville, but to let the law take its course, assuring them that justice would certainly be administered by the courts. My remarks were received with evident displeasure, and I am inclined to think that violence would have been resorted to had not the prisoner been secretly removed from the city and taken to Sacramento. The exasperation of a large number, at this escape of their intended victim, vented itself on me, and cost me at least a hundred votes in the city. I would not have acted otherwise had I known beforehand that such would be the result of my conduct. When the civil tribunals are open and in the undisturbed exercise of their jurisdiction, a resort to violence can never be approved or excused. I witnessed some strange scenes during the campaign, which well illustrated the anomalous condition of society in the county. I will mention one of them. As I approached Grass Valley, then a beautiful spot among the hills, occupied principally by Mr. Walsh, a name since become familiar to Californians, I came to a building by the wayside, a small lodging-house and drinking-saloon, opposite to which a Lynch jury were sitting, trying a man upon a charge of stealing gold dust. I stopped and watched for awhile the progress of the trial. On an occasion of some little delay in the proceedings, I mentioned to those present, the jury included, that I was a candidate for the Legislature, and that I would be glad if they would join me in a glass in the saloon, an invitation which was seldom declined in those days. It was at once accepted, and leaving the accused in the hands of an improvised constable, the jury entered the house and partook of the drinks which its bar afforded. I had discovered, or imagined from the appearance of the prisoner, that he had been familiar in other days with a very different life from that of California, and my sympathies were moved towards him. So, after the jurors had taken their drinks and were talking pleasantly together, I slipped out of the building and approaching the man, said to him, "What is the case against you? Can I help you?" The poor fellow looked up to me and his eyes filled with great globules of tears as he replied. "I am innocent of all I am charged with. I have never stolen anything nor cheated any one; but I have no one here to befriend me." That was enough for me. Those eyes, filled as they were, touched my heart. I hurried back to the saloon; and as the jurors were standing about chatting with each other I exclaimed, "How is this? you have not had your cigars? Mr. bar-keeper, please give the gentlemen the best you have; and, besides, I added, let us have another 'smile'--it is not often you have a candidate for the Legislature among you." A laugh followed, and a ready acceptance was given to the invitation. In the meantime my eyes rested upon a benevolent-looking man among the jury, and I singled him out for conversation. I managed to draw him aside and inquired what State he came from. He replied, from Connecticut. I then asked if his parents lived there. He answered, with a faltering voice, "My father is dead; my mother and sister are there." I then said, "Your thoughts, I dare say, go out constantly to them; and you often write to them, of course." His eyes glistened, and I saw pearl-like dew-drops gathering in them; his thoughts were carried over the mountains to his old home. "Ah, my good friend," I added "how their hearts must rejoice to hear from you." Then, after a short pause, I remarked, "What is the case against your prisoner? He, too, perhaps, may have a mother and sister in the East, thinking of him as your mother and sister do of you, and wondering when he will come back. For God's sake remember this." The heart of the good man responded in a voice which, even to this day--now nearly twenty-seven years past--sounds like a delicious melody in my ears: "I will do so." Passing from him I went to the other jurors, and, finding they were about to go back to the trial, I exclaimed, "Don't be in a hurry, gentlemen, let us take another glass." They again acceded to my request, and seeing that they were a little mellowed by their indulgence, I ventured to speak about the trial. I told them that the courts of the state were organized, and there was no necessity or justification now for Lynch juries; that the prisoner appeared to be without friends, and I appealed to them, as men of large hearts, to think how they would feel if they were accused of crime where they had no counsel and no friends. "Better send him, gentlemen, to Marysville for trial, and keep your own hands free from stain." A pause ensued; their hearts were softened; and, fortunately, a man going to Marysville with a wagon coming up at this moment, I prevailed upon them to put the prisoner in his charge to be taken there. The owner of the wagon consenting, they swore him to take the prisoner to that place and deliver him over to the sheriff; and to make sure that he would keep the oath, I handed him a "slug," a local coin of octagonal form of the value of fifty dollars, issued at that time by assayers in San Francisco. We soon afterwards separated. As I moved away on my horse my head swam a little, but my heart was joyous. Of all things which I can recall of the past, this is one of the most pleasant. I believe I saved the prisoner's life; for in those days there was seldom any escape for a person tried by a Lynch jury. The expenses of the election were very great. It was difficult to interest the miners in it; most of them had come to the country in the hope of improving their fortunes in one or two years, and then returning to "the States." It was, therefore, a matter of little moment to them who were chosen members of the coming Legislature. Party lines were not regarded among them, and party questions could not draw many of them from their labors. As I was an independent candidate, not supported by any party, I had to bear the whole expenses of the campaign. How great those expenses were may be imagined from the following bill, one of a large number sent to me after the election. I had told the saloon-keepers in the vicinity of the polling places in the different precincts to be liberally disposed towards my friends on the day of election. They took me literally at my word, as this bill from the keeper of a saloon where the polls were opened in Downieville precinct will show: Mr. S.J. FIELD, TO ORLEANS HOUSE. To 460 drinks................................ $230 00 275 cigars................................ 68 75 ------ Downieville, _October 9th, 1850_. $298 75 [Endorsed:] "We hereby certify that the within account is correct. "P.L. Moore. "Wm. S. Spear." "Received payment of the within bill in full from Stephen J. Field. "J. Stratman. "_October 14th, 1850_." THE TURNER CONTROVERSY CONTINUED It was not until after my election that Judge Turner paid any attention to the mandate of the Supreme Court commanding him to vacate his order of expulsion against myself and Messrs. Goodwin and Mulford, and to restore us to the bar. The mandate was issued on the fourth of July, and was served on the Judge on the sixteenth. He immediately and publicly declared that he would not obey it, but would stand an impeachment first. Whilst attending the Supreme Court on the application for the writ, Mr. Goodwin, Mr. Mulford, and myself, were admitted as attorneys and counsellors of that court, and that admission under its rules entitled us to practice in all the courts of the State. The effect of this, which re-instated us in the District Court, he determined to defeat. He accordingly directed the sheriff of the county to notify us to show cause, before the court in Sutter County, why we should not be again expelled from the bar for the publication of the article in the Placer Times, to which I have referred, written in reply to his attack on us in his "Address to the Public." The order was dated on the fourth of October, and was served on the eighth, and required us to appear on the first Thursday of the month, which was the third. As the time for appearance was previous to the day of service and to the date of the order, no attention was paid to it. The Judge, however, proceeded, and on the eleventh of the month made another order of expulsion. After the adjournment of the court, he discovered his blunder, and at once issued another direction to the sheriff to notify us that the last order of expulsion was suspended until the twenty-eighth of October, and to show cause on that day why we should not be again expelled. In the meantime, the Judge made no concealment of his purposes, but publicly declared in the saloons of the town that if we did not appear upon this second notice, he would make an order for our expulsion, and if we did appear, he would expel us for contempt in publishing the reply to his article, which he termed a false and slanderous communication. We knew, of course, that it would be useless to appear and attempt to resist his threatened action; still we concluded to appear and put in an answer. Accordingly, on the day designated, we presented ourselves before the court in Sutter County. I was the first one called upon to show cause why I should not be again expelled. I stated that I was ready, and first read an affidavit of one of the Associate Justices of the Court of Sessions, to show that the Judge had declared his purpose to expel myself and the other gentlemen in any event, and that it was an idle ceremony to call upon us to show cause against such threatened action. As soon as it was read, the Judge declared that it was not respectful and could not be received. I then began to read my answer to the order to show cause, but was stopped when I had read about one half of it, and was told that it was not respectful and could not be received. I then requested permission to file it, but my request was refused. Mr. Mulford being called upon to show cause why he should not be expelled, began to read an answer, but was stopped after reading a few lines. His answer was respectful, and was substantially to the effect that he had been admitted as attorney and counsellor in the Supreme Court on the previous July, and was thus entitled to practice in all the courts of the State; that the communication in the Placer Times was written in reply to an article of the Judge, and that he was ready at the proper time and place to substantiate its truth; and he protested against the Judge's interfering in the matter in the manner indicated in the notice. Mr. Goodwin being called upon, took in his answer substantially the same grounds as Mr. Mulford. Immediately after Mr. Goodwin took his seat, without a moment's hesitation, the Judge made an order that his previous order of the eleventh of October, expelling us, should be confirmed, and that the order should be published in the Sacramento Times and the San Francisco Herald. I immediately took the proper steps to obtain another mandate from the Supreme Court to vacate this second expulsion; and also to attach the Judge for non-compliance with the original mandate, the first order of expulsion still being unvacated on the records of the court. At the January term, 1851, the applications to the court in both cases were decided, and they are reported in the 1st California Reports, at pages 189 and 190. In the attachment case, the court denied the application on the ground that no motion had been made by us or any one on our behalf to cause the original order of expulsion to be vacated, and that the Judge had, in the proceedings to expel us, substantially recognized us as re-instated. In the other case, the court decided that the proceedings to re-expel us were irregular, and directed an alternative writ to issue, commanding the Judge to vacate the order and to permit us to practice in all the courts of the district, or to show cause to the contrary, at the next term. No cause was ever shown; and thus ended the attempts of an ignorant, malicious, and brutal judge to keep us out of the profession of our choice. Mr. Goodwin has since held many positions of honor and trust in the State. He was elected District Attorney at the same time that I was elected to the Legislature, and afterwards was Judge of Yuba County, and is now (1877) a member of the State Senate. Mr. Mulford was afterwards and until his death a successful practitioner at the bar of Marysville, and was in all the affairs of life respected as a high-spirited and honorable man. But with Judge Turner I have not yet done. I have a long story still to relate with respect to him. After my election to the Legislature was ascertained, he became exceedingly solicitous to prevent in advance my exerting any influence in it. He expected that I would attack him, and endeavor to secure his impeachment, and he wanted to break me down if possible. He accordingly published a pamphlet purporting to be a statement of the charges that I preferred against him, which was, however, little else than a tirade of low abuse of myself and the editor of the Marysville Herald, in the columns of which the conduct of the Judge had been the subject of just criticism and censure. There was nothing in the miserable swaggering billingsgate of the publication which merited a moment's notice, but as in one passage he stated that he had attempted to chastise me with a whip, and that I had fled to avoid him, I published in the Marysville Herald the following card: A CARD. Judge William E. Turner, in a "statement" published over his signature on the 12th instant, asserts that he attempted to chastise me with a switch, and that I fled to avoid him. This assertion is a _shameless lie_. I never, to my recollection, saw Judge Turner with a switch or a whip in his hand. He has made, as I am informed, many threats of taking personal vengeance on myself, but he has never attempted to put any of them into execution. I have never avoided him, but on the contrary have passed him in the street almost every day for the last four months. When he attempts to carry any of his threats into execution, I trust that I shall not forget, at the time, what is due to myself. Judge Turner says he holds himself personally responsible in and under all circumstances. This he says _in print_; but it is well understood in this place that he has stated he should feel bound by his oath of office to endeavor to obtain an indictment against any gentleman who should attempt to call him to account. Shielded behind his oath of office he has displayed his character by childish boasts of personal courage and idle threats of vengeance. STEPHEN J. FIELD. MARYSVILLE, _Dec. 21st, 1850_. There were also annexed to the publication of Turner, letters from different persons expressive of their opinion of his general bearing on the bench and courtesy to them. Among these was one from John T. McCarty, the candidate against me at the recent election, in which he spoke in high terms of the Judge's conduct on the bench, and assailed me as his calumniator, applying to me sundry coarse epithets. In answer to this letter I published in the Herald the following card: JOHN T. MCCARTY. John T. McCarty, in a letter to Judge William E. Turner, dated the 22d of November, takes occasion to apply several vile epithets to myself, and uses the following language to Judge Turner: "Having been present at the first term of your court ever held in this district, and most of your courts since that time, and being familiar with almost every decision and your entire conduct upon the bench, I take pleasure in saying that I never have practiced before any court where there was so great a dispatch of business, so much order and general satisfaction rendered by the rules and decisions of the court, and that, notwithstanding the base denunciations of your enemies, a large majority of the people who have attended your courts approve and sustain your positions and decisions." During the session of the District Court, at its first term, this same John T. McCarty was called before the County Judge to give his testimony on the return of a writ of _habeas corpus_, and then he testified "_that the conduct of Judge Turner on the bench was the most outrageous he had ever witnessed in any court in which he had practiced;" and the tenor and effect of his whole testimony was in the highest degree condemnatory of the conduct of Judge Turner_. One of two things follows: If the statement in the letter be true, then John T. McCarty was guilty of perjury before the County Judge; but if he testified to the truth, then his statement in the letter is false. In the one case he is a liar and in the other a perjured scoundrel. Thus convicted out of his own mouth, his vile epithets respecting myself are not worth a moment's consideration. STEPHEN J. FIELD. MARYSVILLE, _Dec. 21st, 1850_. On my return from the Legislature, and afterwards, this same McCarty was in my presence the most abject and humble wretch I knew in Marysville. He almost piteously begged recognition by me, and was ready to go down on his knees for it. He was a blustering miscreant, full of courage where no force was required, and ready to run at the first appearance of a fight. He was one of a class, all of whom are alike, in whom bluster, toadyism, and pusillanimity go in concert, and are about equally developed in degree. LIFE IN THE LEGISLATURE Immediately after the election I commenced the preparation of a bill relating to the courts and judicial officers of the State, intending to present it early in the session. The Legislature met at San Jose on the first Monday of January, 1851, and I was placed on the Judiciary Committee of the House. My first business was to call the attention of the Committee to the bill I had drawn. It met their approval, was reported with a favorable recommendation, and after a full discussion was passed. Its principal provisions remained in force for many years, and most of them are retained in the Code, which went into effect in January, 1873. It created eleven judicial districts and defined the jurisdiction and powers of every judicial officer in the State, from a Supreme Judge to a Justice of the Peace. It provided that the then incumbent District Judges should continue to be the Judges of the new Districts according to their respective numbers. At the same time I introduced a bill dividing the county of Trinity, and creating that of Klamath; and also a bill dividing the county of Yuba, and creating that of Nevada; and I so arranged it that out of Trinity and Klamath a new Eighth Judicial District was created, and out of Yuba, Nevada, and Sutter a Tenth Judicial District. Thus Turner, being Judge of the Eighth District, was sent to the then comparative wilderness of Trinity and Klamath; and the Tenth District was to have a new judge. After this bill was passed I presented petitions from the citizens of Yuba County, and of that part which now constitutes Nevada County, praying for the impeachment of Turner, and his removal from office, charging as grounds for it his incompetency from ignorance to discharge its duties, his arbitrary and tyrannical conduct towards the County Judge and members of the Marysville bar, the particulars of which I have related, his contemptuous treatment of the writ of _habeas corpus_, and his general immoral conduct. A committee was thereupon appointed to which the petitions were referred, with power to send for persons and papers. The testimony taken by them fully established the charges preferred. Indeed, there was no serious attempt made to refute them. The only evidence offered in behalf of the Judge was that of a few persons who testified that they had been treated by him with courtesy in some instances and that good order had been maintained in court when they were present. There is no doubt that the impeachment would have been ordered but for a strong desire of the members to bring the session to a close, and a report which had obtained credence, that after the passage of the court bill, by which Turner was sent out of the eighth district, I was content to let the question of impeachment be indefinitely postponed. The testimony taken was reported by the Committee on the 15th of April. His impeachment would have required a trial by the Senate, which would have prolonged the session at least a month, and to this members were much averse. Parties came to me and said, "Judge, what's the use of pressing this matter. You have sent Turner where there are only grizzly bears and Indians; why not let him remain there? He can do no harm there." I replied that he was not fit to be a judge anywhere, and I refused assent to a postponement of the matter. Afterwards, when the vote was about to be taken, a Senator and a personal friend of Turner, misinterpreting some expressions of mine that I desired to bring the matter to a speedy close, privately stated to members of the House that I had declared myself satisfied by the passage of the court bill and was willing to let the impeachment be dropped, it being understood that this course would not be taken as a sanction of the Judge's conduct. To my astonishment, members who had said only half an hour before that they should vote for the impeachment now voted for an indefinite postponement, which was carried by three votes--fifteen to twelve. I did not vote, and three members who strongly favored the impeachment were absent at the time. Seven of the members who voted for the indefinite postponement afterwards informed me that they had done so under the impression that such a disposition of the matter would be satisfactory to me, and that if a direct vote had been taken on the charges they should have voted for the impeachment. Here the matter ended; I did not pursue it. Turner did not go back to Marysville and I had no further trouble with him.[1] To understand fully the legislation with which I was connected, and its effect upon the State, one must be familiar with the history of the country and the condition of its people. In addition to the act concerning the courts and judicial officers referred to, I took up the Code of Civil Procedure, as reported by the Commissioners in New York, remodelled it so as to adapt it to the different condition of things and the different organization of the courts in California, and secured its passage. It became what was known as the California Civil Practice Act, and was afterwards adopted in Nevada and in the Territories west of the Rocky Mountains. I also took up the Code of Criminal Procedure, as reported by the same Commissioners, and remodelled that in the same way and secured its passage. It constituted what was afterwards known as the California Criminal Practice Act, and was also adopted in the State and Territories mentioned. The amount of labor bestowed upon these acts will be appreciated when I state that I recast, in the two, over three hundred sections, and added over one hundred new ones. I devoted so much attention and earnestness to the work, that in a short time the Legislature placed implicit confidence in everything relating to the judiciary which I recommended. The Criminal Practice Act, for instance, remodelled as stated, consisting of over six hundred sections, was never read before the Legislature at all. The rules were suspended and the bill read by its title and passed. When it came before the Governor, on the last day of the session, he said he could not sign it without reading it, and it was too late for him to do that. I represented to him that its passage was essential to secure the harmonious working of laws already passed. Turning to me he said, "You say it is all right?" I replied, "Yes;" and thereupon he signed it. I have already stated that I moved Turner's impeachment. After the testimony was taken I addressed the House upon the subject. In reply to my remarks a member, by the name of B.F. Moore, from Tuolumne County, took occasion to make an abusive attack on me. It was the common practice in those days to go armed. Of the thirty-six members of which the Assembly then consisted, over two-thirds never made their appearance without having knives or pistols upon their persons, and frequently both. It was a thing of every-day occurrence for a member, when he entered the House, before taking his seat, to take off his pistols and lay them in the drawer of his desk. He did it with as little concern and as much a matter of course, as he took off his hat and hung it up. Nor did such a thing excite surprise or comment. But when Mr. Moore rose to reply to me, he first ostentatiously opened his drawer, took out his revolvers, cocked them, and laid them in the open drawer before him. He then launched out into a speech of the most opprobrious language, applying to me offensive epithets, and frequently interspersing his remarks with the declaration that he was responsible for what he said, both there and elsewhere. It is difficult for me to describe the indignation I felt at this outrageous assault and the manner in which it was made. Its very fierceness made me calm, as it is said that a tempest at sea is sometimes so violent as to still the waves. So when I came to make my rejoinder, I answered only such portions of his speech as attempted argument, and made no allusion to the personal language he had used towards me. But as soon as the vote was had on the question of postponing the impeachment, I took measures to call him to account. For this purpose I applied to Mr. Samuel A. Merritt, a member from Mariposa County, to carry a note from me to him, calling upon him to apologize for his offensive conduct or give me the satisfaction which it was understood one gentleman had the right to demand from another. At that time it was generally supposed that the constitutional provision in regard to duelling was self-operative, and that any person who either sent or accepted a challenge, or acted as a second to one who thus offended, would _ipso facto_ be disqualified from afterwards holding any public office. Upon this understanding of the law, Mr. Merritt, with many expressions of regard for me and regret at the law, declined to carry the note. I then applied to Mr. Richardson, also a member, but he declined for the same reason. I was afraid, as matters stood, that I could not get anybody to act for me, and I did not know to whom to apply or what to do. Whilst thinking the matter over, I happened, about nine o'clock in the evening, to walk into the Senate Chamber, and there found Mr. David C. Broderick, afterwards United States Senator, sitting at his desk writing. He was at that time President _pro tem._ of the Senate. I had known him for some time, but not intimately; we were merely bowing acquaintances. As I entered he looked up and said, "Why, Judge, you don't look well, what is the matter?" I answered that I did not feel well, for I had not a friend in the world. He replied, "What is it that worries you?" I then related to him everything that had happened, giving the particulars of the gross and violent assault upon my character, and stated that I was determined, at all hazards, to call Moore to account. Mr. Broderick, without hesitation, said, "My dear Field, I will be your friend in this matter; go and write at once a note to Moore, and I will deliver it myself." I accordingly sat down at an adjoining desk and wrote him a note, the purport of which was that I required him either to make a public retraction of his insulting language in the Legislature, or to give me the satisfaction I had a right to demand. Broderick approved of its terms and at once proceeded to deliver it. When he called on Moore and presented it, the latter said he expected to be a candidate for Congress before the coming convention, and he could not accept a challenge because it would disqualify him under the constitution from holding the office. But at the same time he observed that he was willing to meet me at any time and place; in other words, that he had no objection to a street fight. Broderick replied that a street fight was not exactly the thing among gentlemen; but that if Moore would do no better, a street fight there should be; and thereupon named a time and place when and where I would be found the next morning. Within an hour afterwards Moore changed his mind, and informed Mr. Broderick that Drury Baldwin, another member of the House, would act as his friend, and give a reply to my note the next morning. In anticipation of a possible collision, Mr. Broderick took me out early the following morning to try my skill in the use of a pistol. I tried a navy revolver and succeeded in hitting a knot on a tree, at a distance of thirty yards, three times out of five. Broderick declared himself satisfied, and I then urged upon him the necessity of bringing the matter to a speedy issue. In all this he concurred, and before the meeting of the House, called upon Baldwin for an answer to my note. Baldwin replied that his principal had made up his mind to do nothing further in the matter. "Then," said Broderick, "as soon as the House meets, Judge Field will arise in his seat and refer to the attack on him and to the language of Moore, that he held himself responsible for what he said, and state that respect for the dignity of the House had prevented him from replying to the attack at the time in the terms it deserved; that he had since demanded satisfaction of Moore for his language, and that Moore had refused to respond, and will thereupon pronounce him a liar and a coward." "Then," said Baldwin, "Judge Field will get shot in his seat." "In that case," rejoined Broderick, "there will be others shot too." Mr. Broderick soon afterwards informed me of his conversation with Baldwin, and asked me if I would act as he had stated I would. "Most certainly," I replied; "never fear for me; I will meet the case as it should be met." Accordingly, when the House opened, I took my seat at my desk as usual. Looking around I saw that Broderick was seated near me, and behind him were eight or nine of his personal friends, all armed to the teeth and ready for any emergency. In the meantime, and just before the House met, General John E. Addison, who had found out what was going on and knew the seriousness of the affair, called on Moore, who was his friend, and urged him to retract what he had said and make a suitable apology, and for that purpose drew up a document for him to read to the House, but of this I was not at the time informed. As soon as the journal was read I rose in my seat and said, "Mr. Speaker." At the same moment Moore rose in his seat and said, "Mr. Speaker." The Speaker recognized Moore first; and Moore thereupon proceeded to read the written apology prepared by Addison for his conduct and language to me. It was full, ample, and satisfactory; and of course with that the matter ended. From that time forward to the end of the session I had no further trouble with any one. [1] See Exhibit H, in Appendix. FRIENDSHIP FOR DAVID C. BRODERICK. The narrative which I have given of my difficulty with Moore explains how Broderick befriended me at a very trying time. But that was not the only occasion on which he befriended me. When I came to San Francisco after the adjournment of the Legislature, in May, 1851, I went several times to see him at the hotel where he stopped. On one occasion in the evening, while we were in the saloon of the hotel, he asked me to take a glass of wine with him. We stepped up to the bar and were about drinking, when he suddenly threw himself before me and with great violence pushed me out of the room. The proceeding was so sudden and unexpected that I was astonished and for a moment indignant. I demanded an explanation, saying "What does this mean, Mr. Broderick?" He then told me that while we were standing at the bar he had noticed Vi.--or to give his full name, Vicesimus--Turner, a brother of the Judge, a man of desperate character, come into the bar-room, throw back his Spanish cloak, draw forth a navy revolver, and level it at me. Seeing the movement, he had thrown himself between me and the desperado and carried me off. These good offices on the part of Mr. Broderick filled me with a profound sense of gratitude. For years afterwards I thought and felt as if there was nothing I could do that would be a sufficient return for his kindness. On his account I took much greater interest in political matters than I otherwise should. In order to aid him in his aspirations for election to the United States Senate, upon which he had set his heart, I attended conventions and gave liberally, often to my great inconvenience, to assist the side to which he belonged. To many persons it was a matter of surprise that I should take such an interest in his success and through good and evil report remain so constant and determined in my support of him; but the explanation lies in the circumstances I have narrated and the brave manner in which he had stood by me in a most critical moment of my life. I regret to state that this friendship was ever broken. It was not by me; but broken it was. Shortly after Mr. Broderick was elected to the Senate, he quarrelled with Mr. Buchanan over appointments to office in California; and when he returned to the State, he expressed a good deal of hostility to the Administration. In that hostility I did not participate, and he complained of me for that reason. I was then spoken of throughout the State as a probable candidate for the bench, and he announced his opposition to my nomination. I made no complaints of his conduct, but was much hurt by it. My nomination and election soon afterwards removed me from the sphere of politics. I seldom met him after my election, and never had any conversation with him. Though he was offended at my failure to take sides with him in his controversy with the President, and our intimacy ceased, I could never forget his generous conduct to me; and for his sad death there was no more sincere mourner in the State. LEGISLATION SECURED AND BEGINNING A NEW LIFE. My legislative career was not without good results. I drew, as already stated, and carried through the Legislature a bill defining the powers and jurisdiction of the courts and judicial officers of the State; and whilst thus doing good, I also got rid of the ignorant and brutal judge of our district who had outraged my rights, assaulted my character, and threatened my life. I also, as I have mentioned, introduced bills regulating the procedure in civil and criminal cases, remodelled with many changes from the Codes of Civil and Criminal Procedure reported by the Commissioners of New York; and secured their passage. In the Civil Practice Act I incorporated provisions making the most liberal exemptions from forced sale of the personal property of a debtor, including not merely a limited amount of household furniture, and provisions sufficient for individual or family use for one month, but also the instruments or tools by which he earned his livelihood. The exemptions embraced necessary household and kitchen furniture, wearing apparel, beds and bedding of the debtor, whatever his calling; and also the farming utensils and implements of husbandry of the farmer, two beasts of burden employed by him, and one cart or wagon; the tools and implements of a mechanic or artisan necessary to carry on his trade; the instruments and chests of a surgeon, physician, surveyor, and dentist; the law libraries of an attorney and counsellor; the cabin or dwelling of a miner, and his pick, rocker, wheelbarrow, and other implements necessary to carry on mining operations; two oxen, two horses or two mules and their harness, and one cart or wagon of the cartman, hackman, or teamster; and one horse with vehicle and harness and other equipments used by a physician, surgeon, or minister of the gospel in making his professional visits; and all arms and accoutrements required by law to be kept by any person. I never could appreciate the wisdom of that legislation which would allow a poor debtor to be stripped of all needed articles of his household and of the implements by which alone he could earn the means of supporting himself and family and of ultimately discharging his obligations. It has always seemed to me that an exemption from forced sale of a limited amount of household and kitchen furniture of the debtor, and of the implements used in his trade or profession, was not only the dictate of humanity, but of sound policy. I also incorporated a provision into the Civil Practice Act respecting suits for mining claims, which was the foundation of the jurisprudence respecting mines in the country. The provision was that in actions before magistrates for such claims, evidence should be admitted of the usages, regulations, and customs prevailing in the vicinity, and that such usages, regulations, and customs, when not in conflict with the constitution and laws of the State, or of the United States, should govern the decision of the action. At this time suits for mining claims, the mines being confessedly on the property of the United States, were brought upon an alleged forcible or unlawful detainer. This rule, thus for the first time adopted by legislative enactment, was soon extended to actions for such claims in all courts, and has since been adopted in all the States and Territories west of the Rocky Mountains and substantially by the legislation of Congress. Simple as the provision is, it solved a difficult problem. I also advocated and aided the passage of the Homestead Exemption Bill. That bill was introduced by Mr. G.D. Hall, a member from El Dorado, and now a resident of San Francisco. It provided for an exemption of the homestead to the value of $5,000. An effort was made to reduce the amount to $3,000, and I think I rendered some aid in defeating this reduction, which has always been to me a source of great gratification. I also secured the passage of an act concerning attorneys and counsellors-at-law, in which I incorporated provisions that rendered it impossible for any judge to disbar an attorney in the arbitrary manner in which Judge Turner had acted towards me, without notice of the charges against him and affording him an opportunity to be heard upon them. I also introduced a bill creating the counties of Nevada and Klamath, the provisions of which were afterwards incorporated into a general bill which was passed, dividing the State into counties and establishing the seats of justice therein, and by which also the county of Placer was created. I drafted and secured the passage of an act concerning county sheriffs, in which the duties and responsibilities of those officers, not only in the execution of process and the detention of prisoners, but as keepers of the county jail, were declared and defined; also an act concerning county recorders, in which the present system of keeping records was adopted. This latter act, though drawn by me, was introduced by Mr. Merritt, of Mariposa, but he does not hesitate to speak publicly of my authorship of it. I also prepared a bill concerning divorces, which was reported from the Judiciary Committee as a substitute for the one presented by Mr. Carr, of San Francisco, and was passed. In this act, aside from the ordinary causes of adultery, and consent obtained by force or fraud, for which divorces are granted, I made extreme cruelty and habitual intemperance, wilful desertion of either husband or wife for a period of two years, and wilful neglect of the husband to provide for the wife the common necessaries of life, having the ability to provide the same, for a period of three years, also causes of divorce. I also drew the charters of the cities of Marysville, Nevada, and Monterey, which were adopted--that of Monterey being reported by the Judiciary Committee as a substitute for one introduced by a member from that district. Other bills drawn or supported by me were passed, the provisions of which are still retained in the laws of the State. But notwithstanding all this, when I turned my face towards Marysville I was, in a pecuniary sense, ruined. I had barely the means to pay my passage home. My ventures, after my expulsion from the bar, in June, 1850, had proved so many maelstroms into which the investments were not only drawn but swallowed up. My affairs had got to such a pass that before I left Marysville for the Legislature I felt it to be my duty to transfer all my real property to trustees to pay my debts, and I did so. And now when I stepped upon the landing in Marysville my whole available means consisted of eighteen and three-quarter cents, and I owed about eighteen thousand dollars, the whole of which bore interest at the rate of ten per cent. a month. I proceeded at once to the United States Hotel, kept by a Mr. Peck, who had known me in the days of my good fortune. "My dear Mr. Peck," I said, "will you trust me for two weeks' board?" "Yes," was the reply, "and for as long as you want." "Will you also send for my trunks on the steamer, for I have not the money to pay the carman." "Certainly," the good man added, and so the trunks were brought up. On the next day I looked around for quarters. I found a small house, thirty feet by sixteen, for an office, at eighty dollars a month, and took it. It had a small loft or garret, in which I placed a cot that I had purchased upon credit. Upon this cot I spread a pair of blankets, and used my valise for a pillow. I secured a chair without a back for a wash-stand, and with a tin basin, a pail, a piece of soap, a toothbrush, a comb, and a few towels, I was rigged out. I brought myself each day the water I needed from a well near by. I had an old pine table and a cane-bottomed sofa, and with these and the bills which had passed the Legislature, corrected as they became laws, and the statutes of the previous session, I put out my sign as an attorney and counsellor-at-law, and began the practice of my profession. Soon afterwards I found my name mentioned as a candidate for the State Senate. The idea of returning to the Legislature as a Senator pleased me. The people of the county seemed to favor the suggestion. Accordingly I made a short visit to neighboring precincts, and finding my candidacy generally approved I went to work to make it successful. At the election of delegates to the county convention, which was to nominate candidates, a majority was returned in my favor. Several of them being unable to attend the convention, which was to be held at Downieville, a distance of about seventy miles from Marysville, sent me their proxies made out in blank to be filled with the name of any one whom I might designate. To one supposed friend I gave ten proxies, to another five, and to a third two. When the members met, just previous to the assembling of the convention, it was generally conceded that I had a majority of the delegates. But I had a new lesson in manipulation to learn. Just before the opening of the convention my supposed friend, who had the ten proxies, was approached by the other side, and by promises to give the office of sheriff to his partner--an office supposed to be worth thirty thousand a year--his ten votes were secured for my opponent. The one to whom I had given five proxies was promised for those votes the county judgeship. So when the convention voted, to my astonishment and that of my friends, fifteen of my proxies were cast for my opponent, Joseph C. McKibbin, afterwards a member of Congress, who acted so fearlessly when the Kansas question came up. I was accordingly beaten by two votes. For the moment I was furious, and hunted up the man who had held my ten proxies, and had been seduced from my support. When I found him in the room of the convention, I seized him and attempted to throw him out of the window. I succeeded in getting half his body out, when bystanders pulled me back and separated us. This was fortunate for both of us; for just underneath the window there was a well or shaft sunk fifty feet deep. The following morning I left Downieville, returned to my office and loft at Marysville, and gave my attention to the practice of the law. My business soon became very large; and, as my expenses were moderate, within two years and a half I paid off all my indebtedness, amounting with the accumulations of interest to over thirty-eight thousand dollars. Part of this amount was paid by a surrender of the property mortgaged, or a sale of that previously assigned, but the greater part came from my earnings. I paid every creditor but one in full; to each I gave his pound of flesh, I mean his interest, at ten per cent. a month. I never asked one of them to take less than the stipulated rate. The exceptional creditor was Mr. Berry, a brother lawyer, who refused to receive more than five per cent. a month on a note he held for $450. By this time I had become so much interested in my profession as to have no inclination for office of any kind. On several occasions I was requested by influential party leaders to accept a nomination for the State Senate, but I refused. I am inclined to think that I had for some time a more lucrative practice than any lawyer in the State, outside of San Francisco. No such fees, however, were paid in those days as have been common in mining cases since the discovery of the silver mines of Nevada and the organization of great corporations to develop them. The Bar of Marysville during this period, and afterwards while I remained in that city--which was until October, 1857--was a small, but a very able body of men. Many of its members have since attained distinction and held offices of honor and trust. Richard S. Mesick, who settled there in 1851, became a State Senator, and after his removal to Nevada, a District Judge of that State. He ranks now among the ablest lawyers of the Coast. Charles H. Bryan, who settled there the same year, was an eloquent speaker, and in his forensic contests gave great trouble to his opponent whenever he got at the jury. He was on the Supreme Court of the State for a short period, under the appointment of Governor Bigler. Jesse O. Goodwin, of whom I have already spoken, settled in Marysville in 1850. He was a ready speaker, and sometimes rose to genuine eloquence. He was distinguished in criminal cases. As already stated, he was elected District Attorney in 1850, and afterwards became County Judge, and is now State Senator. Gabriel N. Swezy, who settled there in 1850, was learned in his profession, and quick of apprehension. Few lawyers could equal him in the preparation of a brief. He afterwards at different times represented the county in the Assembly and the Senate of the State. William Walker, who afterwards figured so conspicuously in the filibustering expeditions to Nicaragua, and was called by his followers "the grey-eyed man of destiny," had an office in Marysville in 1851 and '52. He was a brilliant speaker, and possessed a sharp but not a very profound intellect. He often perplexed both court and jury with his subtleties, but seldom convinced either. John V. Berry, who came to Marysville from the mines in 1851, was a fine lawyer, deeply read in the law of adjudged cases. He died in 1853 from poison given to him in mistake by a druggist. Edward D. Wheeler, who came there in 1850, and Thomas B. Reardon, who came in 1853, were both men of strong minds. Mr. Wheeler represented Yuba County at one time in the Senate, and is now the District Judge of the Nineteenth District, at San Francisco. He is regarded as among the ablest and best of the State Judges. Mr. Reardon has been a District Judge for some years in the Fourteenth District, greatly respected by the profession for his ability and learning. Isaac S. Belcher, who came to Marysville at a later period--in 1855, I believe--was noted for his quiet manners and studious habits. He has since been District Judge, and has worthily filled a seat on the bench of the Supreme Court of the State, where he was greatly respected by his associates and members of the bar. Edward C. Marshall, the brilliant orator, who at one time represented the State in Congress, had his office in Marysville in 1855 and '56. He occasionally appeared in court, though he was generally occupied in politics, and in his case, as in nearly all others, the practice of the law and the occupation of politics did not always move harmoniously together. Charles E. Filkins, afterwards County Judge; Charles Lindley, afterwards also County Judge and one of the Code Commissioners; Henry P. Haun, the first County Judge, and afterwards appointed to the United States Senate by Governor Weller; N.E. Whitesides, afterwards a member of the Legislature from Yuba, and Speaker of the House; F.L. Hatch, now County Judge of Colusa; George Howe, afterwards Treasurer of the County; and Wm. S. Belcher, who afterwards rendered good service to the public as a School Commissioner, also practiced at the Marysville bar with success. Charles E. DeLong, afterwards a member of the State Senate, and our Minister to Japan, and Henry K. Mitchell, afterwards a nominee of the Democrats for the U.S. Senate in Nevada, were just getting a good position at the bar when I left, and gave evidence of the ability which they afterwards exhibited. Others might be named who held fine positions in the profession. These mentioned show a bar of great respectability, and I may add that its members were, with few exceptions, gentlemen of general information and courteous manners. The litigation which chiefly occupied them and gave the largest remuneration related to mines and mining claims. The enforcement of mortgages and collection of debts was generally--by me, at least--entrusted to clerks, unless a contest was made upon them. There was one case which I recall with pleasure, because of the result obtained in face of unconcealed bribery on the other side. The subject of the suit was the right to a "placer" mine in Yuba River, at Park's Bar. Its value may be estimated from the fact that within two or three weeks after the decision of the case, the owners took from the mine over ninety thousand dollars in gold dust. The suit was brought before a justice of the peace, and was for an alleged forcible entry and detainer, a form of action generally adopted at the time for the recovery of mining claims, because the title to the lands in which the mines were found was in the United States. It was prosecuted as a purely possessory action. The constable whose duty it was to summon the jurors had received the sum of two hundred dollars to summon certain parties, named by the other side. This fact was established beyond controversy by evidence placed in my hands. And whilst I was in bed in one of the tents or canvas sheds at the Bar, which the people occupied in the absence of more substantial buildings, I heard a conversation in the adjoining room--I could not help hearing it, as it was carried on without any attempt at concealment, and the room was only separated from me by the canvas--between one of the jurors and one of the opposite party, in which the juror assured the party that it was "all right," and he need not worry as to the result of the suit; his side would have the verdict; the jury were all that way. On the next day, when the case was summed up, the saloon in which the trial was had was crowded with spectators, most of whom were partisans of the other side. I addressed the jury for over three hours, and after having commented upon the evidence at length and shown conclusively, as I thought, that my client was entitled to a verdict, I said substantially as follows: "Gentlemen, we have not endeavored to influence your judgment except by the evidence; we have not approached you secretly and tried to control your verdict; we have relied solely upon the law and the evidence to maintain our rights to this property. But the other side have not thus acted; they have not been content that you should weigh only the evidence; they have endeavored to corrupt your minds and pervert your judgments; they have said that you were so low and debased that although you had with uplifted hands declared that so might the ever-living God help you, as you rendered a verdict according to the evidence, you were willing, to please them, to decide against the evidence, and let perjury rest on your souls. I know that you [pointing to one of the jurors] have been approached. Did you spurn the wretch away who made a corrupt proposal to you, or did you hold counsel, sweet counsel with him? I know that you [pointing to another juror] talked over this case with one of the other side at the house on the hill last night, for I overheard the conversation--the promise made to you and your pledge to him. In the canvas houses here all rooms are as one; the words uttered in one are voices in all. You did not dream that any but you two were in the tent; but I was there and overheard the foul bargain." At this thrust there was great excitement, and click, click, was heard all through the room, which showed a general cocking of pistols; for every one in those days went armed. I continued: "There is no terror in your pistols, gentlemen; you will not win your case by shooting me; you can win it only in one way--by evidence showing title to the property; you will never win it by bribery or threats of violence. I charge openly attempted bribery, and if what I say be not true, let the jurors speak out now from their seats. Attempted bribery, I say--whether it will be successful bribery, will depend upon what may occur hereafter. If, after invoking the vengeance of Heaven upon their souls should they not render a verdict according to the evidence, the jurors are willing to sell their souls, let them decide against us." This home-thrust produced a great sensation. It was evident that the jury were disturbed. When the case was submitted to them, they were absent only a few minutes. They returned a verdict in our favor. Some of them afterwards came to me and admitted that they had been corruptly approached, but added that they were not low enough to be influenced in their verdict in that way. "Of course not," I replied; though I had little doubt that it was only the fear of exposure which forced them to do right. I have said that in those days everyone went armed; it would be more correct to say that this was true in the mining regions of the State and when travelling. I, myself, carried a Derringer pistol and a Bowie-knife until the Summer of 1854, though of course out of sight. I did so by the advice of Judge Mott, of the District Court, who remarked that, though I never abused a witness or a juror, or was discourteous to any one in court, there were desperate men in the country, and no one could know to what extremity they might go, as I would not be deterred by any considerations from the discharge of my whole duty to my clients. So, until the Summer of 1854, I carried weapons. And yet they were not such provocatives of difficulty as some of our Eastern friends are accustomed to think. On the contrary, I found that a knowledge that they were worn generally created a wholesome courtesy of manner and language. I continued to occupy my small office and slept in its loft through the Summer and Fall of 1851, and felt quite contented with them. Twice I was summarily dislodged, being threatened by a fire on the other side of the street. On one occasion a most ludicrous incident occurred, which I cannot recall without a smile. A little after midnight we were aroused, on the occasion referred to, by a loud thumping at our door, accompanied by a cry of "fire." My loft was shared with three others, and at the cry we all leaped from our cots and two of our number seizing whatever was convenient and portable carried it out of the house to a distance of about one hundred yards, where gathered a multitude of people, fleeing before the flames with all sorts of baggage, trunks, chairs, beds, and utensils of every kind which they had brought from their houses. I hastily threw the papers of sundry suits and a dozen law books, recently purchased, into a box, and with the assistance of the other occupant of my loft, carried it off. Just as we reached the crowd, a pair of young grizzly bears which the owner had kept in a cage near by were let loose, and they came towards us growling in their peculiar way. At their sight, there was a general _stampede_ of men, women, and children, in all directions. Boxes and everything else portable were instantly dropped, and such an indiscriminate flight was never before seen except from a panic in battle. THE BARBOUR DIFFICULTY. When the bill of 1851, dividing the State into new judicial districts, became a law, there were several candidates for the office of Judge of the Tenth Judicial District, which comprised the counties of Yuba, Nevada, and Sutter. Henry P. Haun, the County Judge of Yuba, was one candidate; John V. Berry, a lawyer of the same county was another; and Gordon N. Mott, a lawyer of Sutter County, was a third. My first choice was Berry; but, finding that he had very little chance, I gave what influence I had in favor of Mr. Mott, and he received from the Governor the appointment of Judge of the new district. In the Summer of 1851, the Governor issued his proclamation for the Fall elections, and, among others, for an election to fill the office of Judge of the Tenth District. I had supposed--and there were many others who agreed with me--that Judge Mott's term under his appointment would continue until the election of 1852. But there being some doubts about the matter and the Governor having issued his proclamation for an election, candidates were nominated by the conventions; and at the ensuing election one of them, William T. Barbour, a lawyer of Nevada County, received a majority of the votes cast and was declared elected. When he came, however, to demand the office, Judge Mott expressed his opinion that there had been no vacancy to be filled and declined to surrender. This led to a suit between them. The question involved being exclusively one of law, an agreed case was made up and presented to the Supreme Court, and that tribunal decided in favor of Barbour. A report of the case is given in the 3d California Reports, under the title of People, ex rel. Barbour, vs. Mott. In the case I appeared as counsel for Judge Mott and argued his cause. This offended Judge Barbour, and he gave free expression to his displeasure. Afterwards, when his term for the vacancy was about to expire and a new election was to be held, he presented himself as a candidate for a second term. It was my opinion that he was not qualified for the position, and I therefore recommended my friends to vote for his opponent. For some weeks previous to the election I was absent from the district; but I returned two days before it was to take place and at once took a decided part against Barbour and did all I could to defeat him. This action on my part, in connection with my previous zeal in behalf of Judge Mott, led Barbour to make some very bitterly vituperative remarks about me, which being reported to me, I called on him for an explanation. Some harsh words passed between us at the interview. The result was that Barbour refused to make any explanation, but gave me a verbal challenge to settle our difficulties in the usual way among gentlemen. I instantly accepted it and designated Judge Mott as my friend. In half an hour afterwards Judge Mott was called upon by Mr. Charles S. Fairfax as the friend of Barbour, who stated that Barbour had been challenged by me, and that his object in calling upon Mott was to arrange the terms of a hostile meeting. Mott answered that he understood the matter somewhat differently; that the challenge, as he had been informed, came from Barbour, and that I, instead of being the challenging, was the accepting party. Fairfax, however, insisted upon his version of the affair; and upon consulting with Mott, I waived the point and accepted the position assigned me. Fairfax then stated that Barbour, being the challenged party, had the right to choose the weapons and the time and place of meeting; to all of which Mott assented. Fairfax then said that, upon consultation with his principal, he had fixed the time for that evening; the place, a room twenty feet square, describing it; the weapons, Colt's revolvers and Bowie-knives; that the two principals so armed were to be placed at opposite sides of the room with their faces to the wall; that they were to turn and fire at the word, then advance and finish the conflict with their knives. Mott answered that the terms were unusual, unprecedented, and barbarous, and that he could not consent to them. Fairfax admitted that they were so; but replied that they were those Barbour had prescribed. He would, however, see Barbour and endeavor to obtain a modification of them. Soon afterwards he reported that Barbour still insisted upon the terms first named and would not agree to any other. When Mott reported the result of his conference with Fairfax, I at once said that Barbour was a coward and would not fight at all. I knew perfectly well that such terms could come only from a bully. I saw that it was a game of bluff he was playing. So I told Mott to accept them by all means. Mott accordingly called on Fairfax and accepted the terms as proposed, and gave notice that I would be on hand and ready at the time and place designated. This being reported to Barbour, Fairfax soon afterwards made his appearance with a message that his principal would waive the Bowie-knives; and not long afterwards he came a second time with another message that it would not do to have the fight in the room designated, because the firing would be heard outside and attract a crowd. In accordance with my instructions, Mott assented to all the modifications proposed, and it was finally agreed that the meeting should take place the next morning in Sutter County. I was to take a private conveyance, and Barbour was to take one of the two daily stages that ran to Sacramento. At a specified place we were to leave our conveyances and walk to a retired spot, which was designated, where the hostile meeting was to take place. The next morning, accordingly, I took a carriage, and with my friend Judge Mott drove down to the appointed place. After we had been there some time the first stage appeared and stopped. Soon after the second stage appeared and stopped, and Judge Barbour and Mr. Fairfax got out. But instead of proceeding to the designated place, Barbour declared that he was a judicial officer, and as such could not engage in a duel. At the same time he would take occasion to say that he would protect himself, and, if assaulted, would kill the assailant. With these words, leaving Fairfax standing where he was, he walked over to the first stage, and mounting rode on to Sacramento. Seeing Fairfax standing alone on the ground I sent word to him that I would be happy to give him a place in my carriage--an invitation which he accepted, and we then drove to Nicolaus, where we breakfasted, and thence returned to Marysville.[1] The conduct of Barbour on the ground, after his fierce and savage terms at the outset, produced a great deal of merriment and derision; and some very sharp squibs appeared in the newspapers. One of them gave him great annoyance, and he inquired for its author. I told the editor of the paper in which it appeared that if it was necessary to protect the writer, to give my name, although I did not write it, or know beforehand that it was to be written. On the following morning, whilst in front of my office gathering up kindling-wood for a fire, and having my arms full--for each man was his own servant in those days--Barbour came up and, placing a cocked navy revolver near my head, cried out, "Draw and defend yourself." As I had not observed his approach I was taken by surprise, but turning on him I said, "You infernal scoundrel, you cowardly assassin--you come behind my back and put your revolver to my head and tell me to draw; you haven't the courage to shoot; shoot and be damned." There were at least ten witnesses of this scene; and it was naturally supposed that having advanced so far he would go farther; but as soon as he found I was not frightened, he turned away and left me. It is impossible to express the contempt I felt for him at that moment for his dastardly conduct, a feeling which the spectators shared with me, as they have since often stated.[2] I do not give these details as having any importance in themselves; but they illustrate the semi-barbarous condition of things in those early days, and by comparison show out of what our existing condition has been evolved, and how far we have advanced. I give them also for the reason that Barbour afterwards wrote a letter to Turner, which the latter published, referring to the affair, in which he boasted of having given me a "whipping." How far his boast was warranted the above facts show. For a long time afterwards he expressed his bitterness towards me in every possible way. He did not take Turner's plan of expelling me from the bar; but he manifested his feelings by adverse rulings. In such cases, however, I generally took an appeal to the Supreme Court, and in nearly all of them procured a reversal. The result was that he suddenly changed his conduct and commenced ruling the other way. While this was his policy, there was hardly any position I could take in which he did not rule in my favor. At last I became alarmed lest I should lose my cases in the appellate court by winning them before him. About a year afterwards he sent one of his friends to ask me if I was willing to meet him half-way--stating that my conduct in court had always been courteous, and he was satisfied that he had done me injustice. I answered that I was always willing to meet any one half-way, but in this case it must be without explanations for the past. This condition was accepted; accordingly we met, and taking a glass of wine, I said, "Here is to an act of oblivion, but no explanations." For a long time no allusion was made by either to the old difficulties. But at last he insisted upon telling me how tales had been brought to him, and how they exasperated him; and he expressed great regret for what had taken place; and to make amends, as far as he was able, for what he had written about me, he sent me the following letter: "MARYSVILLE, _Dec. 22, 1856_. "Hon. S.J. FIELD. "DEAR SIR: On yesterday I learned through our mutual friend Charles S. Fairfax, Esq., that Judge W.R. Turner has recently issued a publication which contains a letter of mine, written him some four years ago. I have not been able to procure a copy of this publication, and I have entirely forgotten the language used; in truth I do not remember to have written him on the subject of yourself or otherwise; but I suppose I must have done so, and have given expressions of opinion that I have long since ceased to entertain, and to invectives that I have no disposition to justify. You will recall that, at the time referred to, there unfortunately existed between us feelings of deep hostility; and I may at the time have used harsh terms indicative of my then feelings, which I regret and do not now approve, if they are as represented by others." "Judge Turner has taken an unwarranted liberty in publishing the letter, be it of what character it may. He never requested my permission for this purpose, nor did I know that it was his intention." "Trusting that this explanation may be satisfactory, I remain," "Very respectfully yr. obt. servant," "WM. T. BARBOUR." He ever afterwards, as occasion offered, spoke of me in the highest terms as a gentleman and lawyer. My resentment accordingly died out, but I never could feel any great regard for him. He possessed a fair mind and a kindly disposition, but he was vacillating and indolent. Moreover, he loved drink and low company. He served out his second term and afterwards went to Nevada, where his habits became worse, and he sunk so low as to borrow of his acquaintances from day to day small sums--one or two dollars at a time--to get his food and lodging. He died from the effects of his habits of intemperance. In stating the result of the intended hostile meeting with him, I mentioned that when he proceeded on his way to Sacramento, he left his second, Mr. Fairfax, standing alone on the ground, and that I invited the latter to take a seat in my carriage. From this time the intercourse between Mr. Fairfax and myself became more frequent than it had been previously, and a friendship followed which continued as long as he lived. He was not sparing in his censure of the conduct of his principal, whilst his language was complimentary of mine. In a few months I became quite intimate with him, and I found him possessed of a noble and chivalric spirit. With great gentleness of manner, he had the most intrepid courage. His fidelity to his friends and devotion to their interests attached them strongly to him. He was beloved by all who knew him. No man in the State was more popular. He represented the county of Yuba in the Legislature two or three times, and at one session was Speaker of the Assembly. When the land office at Marysville was established in 1855, he was appointed Register; and in 1856, he was elected Clerk of the Supreme Court of the State. It was my good fortune to aid him in securing both of these positions. At my suggestion, Mr. McDougal, a Member of Congress from California, urged the establishment of the land office, and obtained for him the appointment of Register. In 1856, when he sought the clerkship of the Supreme Court of the State, I became a delegate from Yuba County to the State Convention, and made his nomination for that office my special object, and with the aid of the rest of the delegation, succeeded in obtaining it. Two or three incidents which I will relate will illustrate the character of the man. It was either in the session of 1854 or 1855, I forget which, that a petition was presented to the Assembly of California on the part of some of the colored people of the State, requesting that the laws then in force, which excluded them from being witnesses in cases where a white person was a party, might be repealed so as to allow them to testify in such cases. At that time there was a great deal of feeling throughout the country on the subject of slavery, and any attempt to legislate in behalf of the colored people was sure to excite opposition, and give rise to suggestions that its promoter was not sound on the slavery question. The presentation of the petition accordingly stirred up angry feelings. It created a perfect outburst of indignation, and some one moved that the petition should be thrown out of the window; and the motion was passed almost unanimously. If I recollect aright, there was but a single vote in the negative. I was standing by Mr. Fairfax when he was informed of the proceeding. He at once denounced it, and said, in energetic terms--"This is all wrong--the petition should have been received. If my horse or my dog could in any way express its wishes to me I would listen to it. It is a shame that a petition from any one, black or white, should not be received by the Legislature of the State, whether it be granted or not." I was greatly impressed at that time with the manliness of this expression in a community which looked with suspicion on any movement in favor of extending any rights to the colored race. On another occasion, some years afterwards, when I was Judge of the Supreme Court of the State and he was the clerk of the court, there was a good deal of complaint against Harvey Lee, the reporter of the court, who was appointed to the office by Governor Weller. I believe that Lee was instrumental, but of this I am not certain, in getting a law passed which took the appointment of the reporter from the court and gave it to the Governor. He was an inferior lawyer, and, of course, had very little practice. The appointment, therefore, to which a fair salary was attached, was eagerly sought by him. His reports, however, were so defective that an effort was made by the judges to get the law repealed and have the appointment restored to the court. This led to a bitter feeling on his part towards the judges, and in a conversation with Mr. Fairfax he gave vent to it in violent language. Mr. Fairfax resented the attack and an altercation ensued, when Lee, who carried a sword-cane, drew the sword and ran it into Fairfax's body. Fortunately it entered the chest above the heart. Withdrawing the sword Lee made a second lunge at Fairfax, which the latter partially avoided so as to receive only a flesh wound in the side. By this time Fairfax had drawn his pistol and covered the body of Lee, as he was raising his sword for a third thrust. Lee, seeing the pistol, stepped back and threw up his arms exclaiming, "I am unarmed"--though he had only that moment withdrawn his sword from the body of Fairfax, and it was then dripping with blood. "Shoot the damned scoundrel," cried the latter's friend, Samuel B. Smith, then standing by his side. But Fairfax did not shoot. Looking at Lee, whose body was covered with his pistol, while the blood was trickling from his own person, he said, "You are an assassin! you have murdered me! I have you in my power! your life is in my hands!" And gazing on him, he added, "But for the sake of your poor sick wife and children I will spare you." He thereupon uncocked his pistol and handed it to his friend, into whose arms he fell fainting. He had known the wife of Lee when a young girl; and, afterwards, in speaking of the affair to a friend, he said, "I thought my wife would be a widow before sundown, and I did not wish to leave the world making another." All California rang with the story of this heroic act. It has its parallel only in the self-abnegation of the dying hero on the battle-field, who put away from his parched lips the cup of water tendered to him, and directed that it be given to a wounded soldier suffering in agony by his side, saying, "His need is greater than mine." During the war his sympathies, as was the case with most Southerners in California, were with his people in Virginia. He told me on one occasion that he could not but wish they would succeed; but, he said; "Though I am a Virginian by birth, I have adopted California, and whilst I live in a State which has taken her stand with the Northern people, I cannot in honor do anything, and I will not, to weaken her attachment to the Union. If my health were good I should leave the State and return to Virginia and give my services to her; but, as that is impossible, I shall remain in California, and, whilst here, will not be false to her by anything I do or say." These incidents, better than any elaborate description, illustrate the character of the man. He was a lineal descendant of the great Fairfax family which has figured so conspicuously in the history of England and of Virginia. He was its tenth Baron in a direct line. But notwithstanding the rank of his family he was a republican in his convictions. He loved his country and its institutions. He was himself more noble than his title. He came East to attend the National Democratic Convention in 1868 at the head of the delegates from California. After the Convention, he spent some months among his friends and relatives at the old family residence in Maryland. At this time the seeds of consumption, which had long been lurking in his system, began to be developed, and he was taken down with a severe illness which proved fatal. He became so ill as to be unable to walk, and was conveyed to Baltimore to procure the best medical attendance; and there he died on the 4th of April, 1869, in the arms of his devoted wife, who had come from California to be with him in his last hours. His body was brought to Washington and interred within sight of the Capitol, near Hock Creek Church, in which his ancestors had worshipped. I have mentioned that when Fairfax was stabbed by Lee he fell into the arms of Mr. Samuel B. Smith. This gentleman I had known slightly before my difficulty with Judge Barbour; but the intimacy which sprung up between Fairfax and myself, after that affair, brought me more in contact with Mr. Smith, who was his constant companion. Mr. Smith came to California from New Jersey in 1849, and passed through some stirring scenes during that and the following year. He came with Mr. John S. Hagar, who was afterwards State Senator, District Judge, and United States Senator, and was engaged with him in the mines in the winter of 1849-'50. In 1850 he settled in Sutter County; and in the fall of 1852 was elected State Senator from that county. Having become more intimately acquainted with him after he was elected Senator, I requested him to introduce a bill into the Legislature, revising and amending the one which I had originally drawn concerning the courts and judicial officers of the State; and he cheerfully consented to do so, and took great interest in securing its passage. Indeed, it was through his influence that the bill became a law. Many circumstances threw us together after that, and I learned to appreciate his manly character, his generous disposition, and his great devotion to his friends. Finally, in the fall of 1854, we agreed to form a partnership after my return from the Eastern States, which I then proposed to visit. After the Barbour affair the course of my professional life was much the same as that of any other lawyer. My business was large and I gave to it my unremitting attention. In 1854 I determined to go East to see my parents and brothers and sisters, who had never been out of my mind a single day since I left them in 1849. Accordingly, I went East, and after passing a few months with them I returned to California in January, 1855. After that I continued to practice my profession, with Mr. Smith as my partner, until the spring of 1857, though during this period he went to Washington as Commissioner of the State to obtain from Congress the payment of moneys expended by her in suppressing the hostilities of Indians within her borders, and was absent several months. In April of that year we dissolved our partnership. A few months afterwards I was nominated for the bench of the Supreme Court of the State, and was elected by a large majority. There were two candidates besides myself for the position, and 93,000 votes were polled. Of these I received a majority of 36,000 over each of my opponents, and 17,000 over them both together.[3] The term to which I was elected was for six years, commencing January 1st, 1858. In September, 1857, Hugh C. Murray, then Chief Justice, died, and Associate Justice Peter H. Burnett was appointed to fill the vacancy. This left the balance of Judge Burnett's term of service to be filled, and I was urged by the Governor of the State to accept his appointment to it, as it was for less than three months, and immediately preceded my own term. At first I refused, as I desired to revisit the East; but being assured by the judges that taking the place need not prevent my intended visit, I accepted the appointment, and on the 13th of October, 1857, took my seat on the bench. [1] See Letter of Judge Mott detailing the particulars of the affair; Exhibit H, in Appendix. [2] See Exhibit I, in Appendix. [3] The exact vote was as follows: For myself 55,216 For Nathaniel Bennett 18,944 For J.P. Ralston 19,068 ------ Total vote 93,228 Majority over Bennett 36,272 Majority over Balston 36,148 Majority over both 17,204 REMOVAL FROM MARYSVILLE--LIFE ON THE SUPREME BENCH.--END OF JUDGE TURNER. The day following my acceptance of the Governor's appointment to the Supreme Court of the State, I returned to Marysville to close my business before taking up my residence in Sacramento, where the court held its sessions. I had gone to Sacramento to argue some cases before the court when the appointment was tendered to me; and, of course, did not expect to remain there very long. In a few days I arranged my affairs at Marysville and then removed permanently to Sacramento. I left Marysville with many regrets. I had seen it grow from a collection of tents with a few hundred occupants to a town of substantial buildings with a population of from eight to ten thousand inhabitants. From a mere landing for steamers it had become one of the most important places for business in the interior of the State. When I left, it was a depot of merchandise for the country lying north and east of it; and its streets presented a scene of bustle and activity. Trains of wagons and animals were constantly leaving it with goods for the mines. Its merchants were generally prosperous; some of them were wealthy. Its bankers were men of credit throughout the State. Steamers plied daily between it and Sacramento, and stages ran to all parts of the country and arrived every hour. Two daily newspapers were published in it. Schools were opened and fully attended. Churches of different denominations were erected and filled with worshippers. Institutions of benevolence were founded and supported. A provident city government and a vigorous police preserved order and peace. Gambling was suppressed or carried on only in secret. A theatre was built and sustained. A lecture-room was opened and was always crowded when the topics presented were of public interest. Substantial stores of brick were put up in the business part of the city; and convenient frame dwellings were constructed for residences in the outskirts, surrounded with plats filled with trees and flowers. On all sides were seen evidences of an industrious, prosperous, moral, and happy people, possessing and enjoying the comforts, pleasures, and luxuries of life. And they were as generous as they were prosperous. Their hearts and their purses were open to all calls of charity. No one suffering appealed to them in vain. No one in need was turned away from their doors without having his necessities relieved. It is many years since I was there, but I have never forgotten and I shall never forget the noble and generous people that I found there in all the walks of life. The Supreme Court of the State then consisted of three members, the senior in commission being the Chief Justice. David S. Terry was the Chief Justice and Peter H. Burnett was the Associate Justice. Both of these gentlemen have had a conspicuous career in California, and of both I have many interesting anecdotes which would well illustrate their characters and which at some future day I may put upon paper. They were both men of vigorous minds, of generous natures and of positive wills; but in all other respects they differed as widely as it was possible for two extremes. Mr. Terry had the virtues and prejudices of men of the extreme South in those days. His contact and larger experience since with men of the North have no doubt modified many of those prejudices, and his own good sense must have led him to alter some of his previous judgments. Probably his greatest regret is his duel with Mr. Broderick, as such encounters, when they terminate fatally to one of the parties, never fail to bring life-long bitterness to the survivor. A wiser mode of settling difficulties between gentlemen has since been adopted in the State; but those who have not lived in a community where the duel is practiced cannot well appreciate the force of the public sentiment which at one time existed, compelling a resort to it when character was assailed. Mr. Burnett was one of the early settlers in Oregon, and had held positions of honor and trust there before settling in California. He came here soon after the discovery of gold, took an interest in public affairs, and was elected the first Governor of the State, when the constitution was adopted. Judge Terry resigned his office in September, 1859, when he determined to send a challenge to Mr. Broderick, and I succeeded him as Chief Justice; and W.W. Cope, of Amador, was elected to fill the vacant place on the bench. I was absent from the State at the time, or I should have exerted all the power I possessed by virtue of my office to put a stop to the duel. I would have held both of the combatants to keep the peace under bonds of so large an amount as to have made them hesitate about taking further steps; and in the meantime I should have set all my energies to work, and called others to my aid, to bring about a reconciliation. I believe I should have adjusted the difficulty. Mr. Cope, who filled the vacant place on the bench, possessed a superior mind and a genial nature. He made an excellent Judge. He studiously examined every case and carefully prepared his opinions. He remained on the bench until January, 1864, when the new constitutional amendments, reorganizing the court, went into effect. He is now in practice in San Francisco, and has a large clientage. Judge Burnett continued in office until the election of his successor in the fall of 1858. His successor was Joseph G. Baldwin, a lawyer of distinction and a gentleman of literary reputation. He was the author of "The Flush Times of Alabama and Mississippi," and of "Party Leaders." The first is a work full of humor and a great favorite in the section of the country whose "times" it portrays with such spirit and glee as to excite roars of laughter in the reader. The latter is a thoughtful history of the character and influence upon the country of Jefferson, Hamilton, Jackson, Clay, and Randolph. His portraitures present these men in the fullness and freshness of living beings, whom we see and hear, and whose power we feel. My friendship for Mr. Baldwin commenced long before he came to the bench, and it afterwards warmed into the attachment of a brother. He had a great and generous heart; there was no virtue of humanity of which he did not possess a goodly portion. He was always brimful of humor, throwing off his jokes, which sparkled without burning, like the flashes of a rocket. There was no sting in his wit. You felt as full of merriment at one of his witticisms, made at your expense, as when it was played upon another. Yet he was a profound lawyer, and some of his opinions are models of style and reasoning. He remained on the bench until January, 1862, when he was succeeded by Edward Norton, of San Francisco. This gentleman was the exemplar of a judge of a subordinate court. He was learned, patient, industrious, and conscientious; but he was not adapted for an appellate tribunal. He had no confidence in his own unaided judgment. He wanted some one upon whom to lean. Oftentimes he would show me the decision of a tribunal of no reputation with apparent delight, if it corresponded with his own views, or with a shrug of painful doubt, if it conflicted with them. He would look at me in amazement if I told him that the decision was not worth a fig; and would appear utterly bewildered at my waywardness when, as was sometimes the case, I refused to look at it after hearing by what court it was pronounced. It is not my purpose to speak of my own career on the Bench of the Supreme Court of California. It is only for reminiscences of my previous life that you, Mr. Hittell, have asked.[1] I am tempted, however, to hand to you a letter of Judge Baldwin, my associate for over three years, in which he presents, in terms exaggerated by his friendship, the result of my labors there.[2] There is only one scene to which I wish to refer. About a year and a half after I went upon the bench, a contested election case came up from Trinity County. It appeared that Judge Turner, who had been sent to the district composed of the counties of Trinity and Klamath, by the act concerning the courts and judicial officers of the State, at the end of his term offered himself for re-election as Judge of that district. When the vote was counted there appeared to be a majority of one against him, and his opponent was declared elected. He instituted a contest for the office, and, being defeated in the court below, appealed to the Supreme Court. He then became very much exercised over his appeal, because I was one of the Justices. There were not wanting persons who, out of sheer malice, or not comprehending any higher motives of conduct than such as governed themselves, represented that I would improve the opportunity to strike him a blow. When his case came on for hearing, I left the bench to my associates, Judges Terry and Baldwin, and they decided in his favor. At this action of mine Turner was amazed. It was something wholly unexpected and surprising to him. Soon after the decision he sent one of his friends, named Snowden, to know if I would speak to him if he should make the first advance. I answered that under no circumstances would I ever consent to speak to him; that he had done me injuries which rendered any intercourse with him impossible; that the world was wide enough for us both, and he must go his own way. This answer Snowden communicated to him. The next morning he stationed himself at the foot of the stairway leading up to the Supreme Court rooms, which was on the outside of the building, and, as I passed up, he cried out; "I am now at peace with all the world; if there is any man who feels that I have done him an injury, I am ready to make him amends." I turned and looked at him for a moment, and then passed on without saying a word. On the following morning he took the same position and repeated substantially the same language. I stopped and gazed at him for a moment, and then passed on in silence. This was the last time I saw him. He returned to Trinity, and held his office for the balance of his term, six years, under the decision of the Supreme Court, and was re-elected in 1863. But his character and habits unfitted him for a judicial position. He was addicted to gambling and drinking, and he consorted with the lowest characters; and the same tyrannical temper and conduct which he had exhibited towards me in Marysville, were displayed in his new district. Accordingly measures were taken by citizens of Trinity to secure his impeachment by the Legislature. Mr. Westmoreland, a member of the Assembly from that county in 1867 offered a resolution for the appointment of a committee to inquire whether articles of impeachment should be presented against him for high crimes and misdemeanors, with power to send for persons and papers and report articles if warranted by the evidence. In offering the resolution Mr. Westmoreland charged, that during the time Turner had held the office of District Judge he had been grossly tyrannical; that he had imprisoned citizens, depriving them of their liberty without process of law; that he had neglected and refused to perform the duties incumbent upon him by statute; that by a standing rule he allowed no witness to be called in a case unless he was subpoenaed and in attendance on the first day of the term; that he had used the power of his position for the furtherance of his own ends of private hate; that he was an habitual drunkard, with rare intervals of sobriety, and had upon occasions come into the court-room to sit upon the trial of causes so intoxicated as to be unable to stand, and had fallen helplessly upon the floor, whence he had been removed by officers of the court; that upon one occasion, when engaged in a trial, he had in the presence of jurors, witnesses, and other persons attending the court, deliberately gone out of the court-room and openly entered a house of ill-fame near by; and that by his disgraceful conduct he had become a burden upon the people of that district too grievous to be borne. These things Mr. Westmoreland stated he stood prepared to prove, and he invoked the interposition of the Legislature to protect the people of the Eighth Judicial District who were suffering from the deportment and conduct of this officer. The resolution was passed. Finding that articles of impeachment would be presented against him, Turner resigned his office. After this his habits of drinking became worse, and he was sent to the Asylum for Inebriates, where he died. In thinking over my difficulties with Turner at this distant day, there is nothing in my conduct which I in the least regret. Had I acted differently; had I yielded one inch, I should have lost my self-respect and been for life an abject slave. There was undoubtedly an unnecessary severity of language in two or three passages of my answers to his attacks; and some portion of my answer in court to his order to show cause why I should not be re-expelled from the bar might better have been omitted. I have since learned that one is never so strong as when he is calm, and never writes so forcibly as when he uses the simplest language. My justification in these particulars, if they require any, must be found in the savage ferocity with which I was assailed, the brutal language applied to my character and conduct, and the constant threats made of personal violence. Malignity and hate, with threats of assassination, followed me like a shadow for months. I went always armed for protection against assault. I should have been less or more than man had I preserved at all times perfect calmness either in my language or conduct. In the contest with this man I was cheered by the support of the best men of the State. But of all of them no one aided me so much, and so freely, as the editor of the Marysville Herald, Mr. Robert H. Taylor, a gentleman still living, in the full strength of his intellect, and honored and trusted as a learned member of the legal profession in Nevada. May length of years and blessings without number attend him. * * * * * Here my narrative of "Personal Experiences" must for the present end. I could have given you, Mr. Hittell, more interesting matter. I could have given you sketches of Fremont, Halleck, Gwin, Broderick, Weller, Geary, Sherman, Bigler, McDougal, Bennett, Heydenfeldt, Murray, and others, with many striking anecdotes illustrative of their characters. They were all remarkable men, and the history of their lives would be full of interest and instruction. I could have related the story of the Vigilance Committees of 1851 and 1856, and shown how the men of order and virtue acquired and maintained ascendency over the irregular and disorderly elements of society. I could have told you of the gradual development of the industries of the State until her yearly products have become one of the marvels of the world. I could have described the wild excitement produced by the supposed discoveries of gold in boundless quantities on Fraser River; and the later but more substantial movement upon the development of the silver mines of Nevada. I could have recounted the efforts made in 1860 and 1861 to keep the State in the Union against the movements of the Secessionists, and the communications had with President Lincoln by relays of riders over the Plains. I could have described the commencement, progress, and completion of the Pacific railroad, and the wonderful energy and unfailing resolution of its constructors. I could have told you stories without number, full of interest, of the Judges of California, State and Federal, who preceded me on the bench, and of members of the profession; of Hastings, Bennett, Lyons, Wells, Anderson, Heydenfeldt, and Murray, of the State Supreme Court; of Hoffman and McAllister of the Federal bench; of Robinson, Crittenden, Randolph, Williams, Yale, McConnell, Felton, and others of the Bar, now dead, and of some who are at its head, now living; composing as a whole a bar not exceeded in ability, learning, eloquence, and literary culture by that of any other State of the Union. But you asked me merely for personal reminiscences, of occurrences at Marysville and during the days preceding my going there. I will, therefore, postpone until another occasion a narrative which I think will be more interesting than anything I have here related. [1] These sketches were in the main dictated to a short-hand writer at the request of Mr. Theodore H. Hittell, of San Francisco. [2] The letter is printed at the end of this narrative at page 135. THE CAREER OF JUDGE FIELD ON THE SUPREME BENCH OF CALIFORNIA, BY JUDGE JOSEPH G. BALDWIN, HIS ASSOCIATE FOR THREE YEARS. [_From the Sacramento Union, of May 6, 1863._] "The resignation by Judge Field of the office of Chief Justice of the Supreme Court of California, to take effect on the 20th instant, has been announced. By this event the State has been deprived of the ablest jurist who ever presided over her courts. Judge Field came to California from New York in 1849, and settled in Marysville. He immediately commenced the practice of law and rose at once to a high position at the local bar, and upon the organization of the Supreme Court soon commanded a place in the first class of the counsel practicing in that forum. For many years, and until his promotion to the bench, his practice was as extensive, and probably as remunerative, as that of any lawyer in the State. He served one or two sessions in the Legislature, and the State is indebted to him for very many of the laws which constitute the body of her legislation.[1] In 1857 he was nominated for Judge of the Supreme Court for a full term, and in October of the same year was appointed by Governor Johnson to fill the unexpired term of Justice Heydenfeldt, resigned. He immediately entered upon the office, and has continued ever since to discharge its duties. Recently, as the reader knows, he was appointed, by the unanimous request of our delegation in Congress, to a seat upon the Bench of the Supreme Court of the United States, and was confirmed, without opposition, by the Senate. "Like most men who have risen to distinction in the United States, Judge Field commenced his career without the advantages of wealth, and he prosecuted it without the factitious aids of family influence or patronage. He had the advantage, however--which served him better than wealth or family influence--of an accomplished education, and careful study and mental discipline. He brought to the practice of his profession a mind stored with professional learning, and embellished with rare scholarly attainments. He was distinguished at the bar for his fidelity to his clients, for untiring industry, great care and accuracy in the preparation of his cases, uncommon legal acumen, and extraordinary solidity of judgment. As an adviser, no man had more the confidence of his clients, for he trusted nothing to chance or accident when certainty could be attained, and felt his way cautiously to his conclusions, which, once reached, rested upon sure foundations, and to which he clung with remarkable pertinacity. Judges soon learned to repose confidence in his opinions, and he always gave them the strongest proofs of the weight justly due to his conclusions. "When he came to the bench, from various unavoidable causes the calendar was crowded with cases involving immense interests, the most important questions, and various and peculiar litigation. California was then, as now, in the development of her multiform physical resources. The judges were as much pioneers of law as the people of settlement. To be sure something had been done, but much had yet to be accomplished; and something, too, had to be undone of that which had been done in the feverish and anomalous period that had preceded. It is safe to say that, even in the experience of new countries hastily settled by heterogeneous crowds of strangers from all countries, no such example of legal or judicial difficulties was ever before presented as has been illustrated in the history of California. There was no general or common source of jurisprudence. Law was to be administered almost without a standard. There was the civil law, as adulterated or modified by Mexican provincialism, usages, and habitudes, for a great part of the litigation; and there was the common law for another part, but _what that was_ was to be decided from the conflicting decisions of any number of courts in America and England, and the various and diverse considerations of policy arising from local and other facts. And then, contracts made elsewhere, and some of them in semi-civilized countries, had to be interpreted here. Besides all which may be added that large and important interests peculiar to the State existed--mines, ditches, etc.--for which the courts were compelled to frame the law, and make a system out of what was little better than chaos. "When, in addition, it is considered that an unprecedented number of contracts, and an amount of business without parallel, had been made and done in hot haste, with the utmost carelessness; that legislation was accomplished in the same way, and presented the crudest and most incongruous materials for construction; that the whole scheme and organization of the government, and the relation of the departments to each other, had to be adjusted by judicial construction--it may well be conceived what task even the ablest jurist would take upon himself when he assumed this office. It is no small compliment to say that Judge Field entered upon the duties of this great trust with his usual zeal and energy, and that he leaves the office not only with greatly increased reputation, but that he has raised the character of the jurisprudence of the State. He has more than any other man given tone, consistency, and system to our judicature, and laid broad and deep the foundation of our civil and criminal law. The land titles of the State--the most important and permanent of the interests of a great commonwealth--have received from his hand their permanent protection, and this alone should entitle him to the lasting gratitude of the bar and the people. "His opinions, whether for their learning, logic, or diction, will compare favorably, in the judgment of some of our best lawyers, with those of any judge upon the Supreme Bench of the Union. It is true what he has accomplished has been done with labor; but this is so much more to his praise, for such work was not to be hastily done, and it was proper that the time spent in perfecting the work should bear some little proportion to the time it should last. We know it has been said of Judge Field that he is too much of a 'case lawyer,' and not sufficiently broad and comprehensive in his views. This criticism is not just. It is true he is reverent of authority, and likes to be sustained by precedent; but an examination of his opinions will show that, so far from being a timid copyist, or the passive slave of authority, his rulings rest upon clearly defined principles and strong common sense. "He retires from office without a stain upon his ermine. Millions might have been amassed by venality. He retires as poor as when he entered, owing nothing and owning little, except the title to the respect of good men, which malignant mendacity cannot wrest from a public officer who has deserved, by a long and useful career, the grateful appreciation of his fellow-citizens. We think that we may safely predict that, in his new place, Justice Field will fulfill the sanguine expectations of his friends." J.G.B. SAN FRANCISCO, _May 1, 1863_. [1] He was in the Legislature only one session. * * * * * In 1855 a circuit court for California was created by Congress, and clothed with the ordinary jurisdiction of the several circuit courts of the United States. Hon. M. Hall McAllister was appointed its judge. In January, 1863, he resigned and my appointment as his successor was recommended by our Senators. They telegraphed me what they had done, and I replied that I could not accept the place, that I preferred to remain Chief Justice of the Supreme Court of the State than to be a judge of an inferior federal court, but that if a new justice were added to the Supreme Court of the United States, I would accept the office if tendered to me. Notwithstanding this reply my appointment was urged, and I was nominated by the President. The Senators have since told me that they pressed my nomination from a belief that another justice would soon be added to the Supreme Court, and that the appointment would be made from the Pacific States, and that if I were circuit judge it would more likely be tendered to me than to any one else. The interests of those States were so great, and from the character of their land titles, and their mines of gold and silver, were in some respects so different from those of the Eastern States, that it was deemed important to have some one familiar with them on the Supreme Bench of the United States. Accordingly, while my nomination for circuit judge was pending before the Senate, a bill providing for an additional justice of the Supreme Court, and making the Pacific States a new circuit, was introduced into both Houses of Congress, and on the last day of the session, March 3d, 1863, it became a law. Soon after the adjournment of Congress, the entire delegation from the Pacific States united in recommending my appointment to the new office. The delegation then consisted of four Senators and four Members of the House, of whom five were Democrats and three Republicans; all of them were Union men. I was accordingly nominated by the President, and the nomination was unanimously confirmed by the Senate. My commission was signed on the 10th of March, 1863, and forwarded to me. I did not, however, take the oath of office and enter upon its duties until the 20th of May following. At the time I received the commission there were many important cases pending in the Supreme Court of California, which had been argued when only myself and one of the associate justices were present. I thought that these cases should be disposed of before I resigned, as otherwise a re-argument of them would be required, imposing increased expense and delay upon the parties. I therefore sent my resignation as Chief Justice to the Governor, to take effect on the 20th of May. I selected that day, as I believed the cases argued could be decided by that time, and because it was the birthday of my father. I thought it would be gratifying to him to know that on the eighty-second anniversary of his birth his son had become a Justice of the Supreme Court of the United States. Accordingly on that day I took the oath of office.[1] [1] Although I had informed the Attorney-General of my action and delay in taking the oath of office, the salary of the office was sent to me from the date of my commission, March 10th, 1863. I immediately deposited with the sub-treasurer at San Francisco, to the credit of the United States, the proportion for the time between that date and the 20th of May, and informed the Secretary of the Treasury of the deposit, enclosing to him the sub-treasurer's receipt. * * * * * THE ANNOYANCES OF MY JUDICIAL LIFE. After the narrative of my Personal Reminiscences was completed, I concluded to dictate an account of some strange annoyances to which I had been subjected in the course of my judicial life. The account will have an interest to those of my friends for whom the Reminiscences were printed, and it is intended for their perusal alone. ROSY VIEWS OF JUDICIAL LIFE GRADUALLY VANISHING.--UNSETTLED LAND TITLES OF THE STATE.--ASSERTED OWNERSHIP BY THE STATE OF GOLD AND SILVER FOUND IN THE SOIL.--PRESENT OF A TORPEDO. When I went on the bench, I not only entertained elevated notions of the dignity and importance of the judicial office, but looked forward confidently to the respect and honor of the community from a faithful discharge of its duties. I soon discovered, however, that there would be but little appreciation for conscientious labor on the bench, except from a small number of the legal profession, until after the lapse of years. For the heavy hours of toil which the judges endured, for the long examination which they gave to voluminous records, for their nights of sleeplessness passed in anxious thought to ascertain what was true and right amidst a mass of conflicting evidence and doubtful principles, the public at large appeared to have little thought and less consideration. The cry of disappointment over frustrated schemes of cupidity and fraud was sufficient for the time to drown all other expressions of judgment upon the action of the court. The unsettled condition of the land titles of the State gave occasion to a great deal of litigation and was for a long time the cause of much bad feeling towards the judges who essayed to administer impartial justice. When California was acquired, the population was small and widely scattered. To encourage colonization, grants of land in large quantities, varying from one to eleven leagues, had been made to settlers by the Mexican government. Only small tracts were subjected to cultivation. The greater part of the land was used for grazing cattle, which were kept in immense herds. The grants were sometimes of tracts with defined boundaries, and sometimes of places by name, but more frequently of specified quantities within boundaries embracing a greater amount. By the Mexican law, it was incumbent upon the magistrates of the vicinage to put the grantees in possession of the land granted to them; and for that purpose to measure off and segregate the quantity designated. Owing to the sparseness of the population there was little danger of dispute as to boundaries, and this segregation in the majority of cases had been neglected before our acquisition of the country. From the size of the grants and the want of definite boundaries, arose nearly all the difficulties and complaints of the early settlers. Upon the discovery of gold, immigrants from all parts of the world rushed into the country, increasing the population in one or two years from a few thousand to several hundred thousand. A large number crossed the plains from the Western States, and many of them sought for farming lands upon which to settle. To them a grant of land, leagues in extent, seemed a monstrous wrong to which they could not be reconciled. The vagueness, also, in many instances, of the boundaries of the land claimed gave force and apparent reason to their objections. They accordingly settled upon what they found unenclosed or uncultivated, without much regard to the claims of the Mexican grantees. If the land upon which they thus settled was within the tracts formerly occupied by the grantees with their herds, they denied the validity of grants so large in extent. If the boundaries designated enclosed a greater amount than that specified in the grants, they undertook to locate the supposed surplus. Thus, if a grant were of three leagues within boundaries embracing four, the immigrant would undertake to appropriate to himself a portion of what he deemed the surplus; forgetting that other immigrants might do the same thing, each claiming that what he had taken was a portion of such surplus, until the grantee was deprived of his entire property. When I was brought to consider the questions to which this condition of things gave rise, I assumed at the outset that the obligations of the treaty with Mexico were to be respected and enforced. This treaty had stipulated for the protection of all rights of property of the citizens of the ceded country; and that stipulation embraced inchoate and equitable rights, as well as those which were perfect. It was not for the Supreme Court of California to question the wisdom or policy of Mexico in making grants of such large portions of her domain, or of the United States in stipulating for their protection. I felt the force of what Judge Grier had expressed in his opinion in the case of The United States vs. Sutherland, in the 19th of Howard, that the rhetoric which denounced the grants as enormous monopolies and princedoms might have a just influence when urged to those who had a right to give or refuse; but as the United States had bound themselves by a treaty to acknowledge and protect all _bona fide_ titles granted by the previous government, the court had no discretion to enlarge or contract such grants to suit its own sense of propriety or to defeat just claims, however extensive, by stringent technical rules of construction to which they were not originally subjected. Since then, while sitting on the Bench of the Supreme Court of the United States, I have heard this obligation of our government to protect the rights of Mexican grantees stated in the brilliant and powerful language of Judge Black. In the Fossat case, referring to the land claimed by one Justo Larios, a Mexican grantee, he said: "The land we are claiming never belonged to this government. It was private property under a grant made long before our war with Mexico. When the treaty of Guadalupe Hidalgo came to be ratified--at the very moment when Mexico was feeling the sorest pressure that could be applied to her by the force of our armies, and the diplomacy of our statesmen--she utterly refused to cede her public property in California unless upon the express condition that all private titles should be faithfully protected. We made the promise. The gentleman sits on this bench who was then our Minister there.[1] With his own right hand he pledged the sacred honor of this nation that the United States would stand over the grantees of Mexico and keep them safe in the enjoyment of their property. The pledge was not only that the government itself would abstain from all disturbance of them, but that every blow aimed at their rights, come from what quarter it might, should be caught upon the broad shield of our blessed Constitution and our equal laws." "It was by this assurance thus solemnly given that we won the reluctant consent of Mexico to part with California. It gave us a domain of more than imperial grandeur. Besides the vast extent of that country, it has natural advantages such as no other can boast. Its valleys teem with unbounded fertility, and its mountains are filled with inexhaustible treasures of mineral wealth. The navigable rivers run hundreds of miles into the interior, and the coast is indented with the most capacious harbors in the world. The climate is more healthful than any other on the globe: men can labor longer with less fatigue. The vegetation is more vigorous and the products more abundant; the face of the earth is more varied, and the sky bends over it with a lovelier blue.--That was what we gained by the promise to protect men in the situation of Justo Larios, their children, their alienees, and others claiming through them. It is impossible that in this nation they will ever be plundered in the face of such a pledge."--(2 Wallace, 703.) Actuated by this principle--that fidelity to a nation's pledge is a sacred duty, and that justice is the highest interest of the country, I endeavored, whenever the occasion presented itself, and my associates heartily co-operated with me, to protect the Mexican grantees. Their grants contained a stipulation for the possession of the lands granted, inasmuch as they were subject to the conditions of cultivation and occupancy, and a failure to comply with the conditions was considered by the tribunals of the United States as a most material circumstance in the determination of the right of the grantees to a confirmation of their claims. I held, therefore, with the concurrence of my associates, that the grantees, whether they were to be considered as having a legal or an equitable right to the lands, were entitled to their possession until the action of the government upon their claims, and, therefore, that they could recover in ejectment. And when the grant was not a mere float, but was of land within defined boundaries, which embraced a greater quantity than that specified in it, with a provision that the surplus should be measured off by the government, I held that until such measurement the grantee could hold the whole as against intruders, and until then he was a tenant in common with the government. As I said in one of my opinions, speaking for the court, until such measurement no individual could complain, much less could he be permitted to determine in advance, that any particular locality would fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself. "If one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is the donee of the government, would be stripped of its bounty for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors."[2] These views have since met with general assent in California and have been approved by the Supreme Court of the United States.[3] But at that time they gave great offence to a large class, and the judges were denounced in unmeasured terms as acting in the interests of monopolists and land-grabbers. Even now, when the wisdom and justice of their action are seen and generally recognized, words of censure for it are occasionally whispered through the Press. Persons sometimes seem to forget that to keep the plighted faith of the nation, to preserve from reproach its fair fame, where its honor is engaged, is one of the highest duties of all men in public life. The action of the court as to the possession of the public lands of the United States met with more favor. The position of the people of California with respect to the public lands was unprecedented. The discovery of gold brought, as already stated, an immense immigration to the country. The slopes of the Sierra Nevada were traversed by many of the immigrants in search of the precious metals, and by others the tillable land was occupied for agricultural purposes. The title was in the United States, and there had been no legislation by which it could be acquired. Conflicting possessory claims naturally arose, and the question was presented as to the law applicable to them. As I have mentioned in my Narrative of Reminiscences, the Legislature in 1851 had provided that in suits before magistrates for mining claims, evidence of the customs, usages, and regulations of miners in their vicinage should be admissible, and, when not in conflict with the Constitution and laws of the United States, should govern their decision, and that the principle thus approved was soon applied in actions for mining claims in all courts. In those cases it was considered that the first possessor or appropriator of the claim had the better right as against all parties except the government, and that he, and persons claiming under him, were entitled to protection. This principle received the entire concurrence of my associates, and was applied by us, in its fullest extent, for the protection of all possessory rights on the public lands. Thus, in Coryell vs. Cain, I said, speaking for the court: "It is undoubtedly true, as a general rule, that the claimant in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's, and that it is a sufficient answer to his action to show title out of him and in a third party. But this general rule has, in this State, from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country, been, to a certain extent, qualified and limited. The larger portion of the mining lands within the State belong to the United States, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. Actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount title of the government would operate to defeat them, confusion and ruin would be the result. In determining controversies between parties thus situated, this court proceeds upon the presumption of a grant from the government to the first appropriator of mines, water privileges, and the like. This presumption, which would have no place for consideration as against the assertion of the rights of the superior proprietor, is held absolute in all those controversies. And with the public lands which are not mineral lands, the title, as between citizens of the State, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him."--(16 Cal., p. 572.) The difficulties attendant upon any attempt to give security to landed possessions in the State, arising from the circumstances I have narrated, were increased by an opinion, which for some time prevailed, that the precious metals, gold and silver, found in various parts of the country, whether in public or private lands, belonged to the State by virtue of her sovereignty. To this opinion a decision of the Supreme Court of the State, made in 1853, gave great potency. In Hicks vs. Bell, decided that year, the court came to that conclusion, relying upon certain decisions of the courts of England recognizing the right of the Crown to those metals. The principal case on the subject was that of The Queen vs. The Earl of Northumberland, reported in Plowden. The counsel of the Queen in that case gave, according to our present notions, some very fanciful reasons for the conclusion reached, though none were stated in the judgment of the court. There were three reasons, said the counsel, why the King should have the mines and ores of gold and silver within the realm, in whatsoever land they were found: "The first was, in respect to the excellency of the thing, for of all things which the soil within this realm produces or yields, gold and silver are the most excellent, and of all persons in the realm, the King is, in the eye of the law, most excellent. And the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all others; and because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the King.--The second reason was, in respect of the necessity of the thing. For the King is the head of the Weal-public and the subjects are his members; and the office of the King, to which the law has appointed him, is to preserve his subjects; and their preservation consisted in two things, viz., in an army to defend them against hostilities, and in good laws. And an army cannot be had and maintained without treasure, for which reason some authors, in their books, call treasure the sinews of war; and, therefore, inasmuch as God has created mines within this realm, as a natural provision of treasure for the defence of the realm, it is reasonable that he who has the government and care of the people, whom he cannot defend without treasure, should have the treasure wherewith to defend them.--The third reason was, in respect of its convenience to the subjects in the way of mutual commerce and traffic. For the subjects of the realm must, of necessity, have intercourse or dealing with one another, for no individual is furnished with all necessary commodities, but one has need of the things which another has, and they cannot sell or buy together without coin.--And if the subject should have it (the ore of gold or silver) the law would not permit him to coin it, nor put a print or value upon it, for it belongs to the King only to fix the value of coin, and to ascertain the price of the quantity, and to put the print upon it, which being done, the coin becomes current for so much as the King has limited.--So that the body of the realm would receive no benefit or advantage if the subject should have the gold and silver found in mines in his land; but on the other hand, by appropriating it to the King, it tends to the universal benefit of all the subjects in making their King able to defend them with an army against all hostilities, and when he has put the print and value upon it, and has dispersed it among his subjects, they are thereby enabled to carry on mutual commerce with one another, and to buy and sell as they have occasion, and to traffic at their pleasure. Therefore, for these reasons, viz., for the excellency of the thing, and for the necessity of it, and the convenience that will accrue to the subjects, the common law, which is no other than pure and tried reason, has appropriated the ore of gold and silver to the King, in whatever land it be found." The Supreme Court of the State, without considering the reasons thus assigned in the case in Plowden, adopted its conclusion; and as the gold and silver in the British realm are there held to belong to the Crown, it was concluded, on the hypothesis that the United States have no municipal sovereignty within the limits of the State, that they must belong in this country to the State. The State, therefore, said the court, "has solely the right to authorize them" (the mines of gold and silver) "to be worked; to pass laws for their regulation; to license miners; and to affix such terms and conditions as she may deem proper to the freedom of their use. In the legislation upon this subject she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions, and she has wisely provided that their conflicting claims shall be adjudicated by the rules and customs which may be established by bodies of them working in the same vicinity."--(3 Cal., 220.) The miners soon grasped the full scope of this decision, and the lands of private proprietors were accordingly invaded for the purpose of mining as freely as the public lands. It was the policy of the State to encourage the development of the mines, and no greater latitude in exploration could be desired than was thus sanctioned by the highest tribunal of the State. It was not long, however, before a cry came up from private proprietors against the invasion of their possessions which the decision had permitted; and the court was compelled to put some limitation upon the enjoyment by the citizen of this right of the State. Accordingly, within two years afterwards, in Stoakes vs. Barrett, (5 Cal., 37,) it held that although the State was the owner of the gold and silver found in the lands of private individuals as well as in the public lands, "yet to authorize an invasion of private property in order to enjoy a public franchise would require more specific legislation than any yet resorted to." The spirit to invade other people's lands, to which the original decision gave increased force against the intention of its authors, could not be as easily repressed as it was raised in the crowd of adventurers, who filled the mining regions. Accordingly, long before I went on the bench, the right to dig for the precious metals on the lands of private individuals was stoutly asserted under an assumed license of the State. And afterwards, in the case of Biddle Boggs vs. The Merced Mining Co., which came before the court in 1859, where the plaintiff claimed under a patent of the United States, issued upon the confirmation of a Mexican grant, the existence of this license was earnestly maintained by parties having no connection with the government, nor any claim of title to the land. Its existence was, however, repudiated by the court, and speaking for it in that case I said: "There is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship, and under this pretended license the whole might be invaded, and, for all useful purposes, destroyed, no matter how little remunerative the product of the mining. The entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gardens, or otherwise. Under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting. What value would there be to a title in one man, with a right of invasion in the whole world? And what property would the owner possess in mineral land--the same being in fact to him poor and valueless just in proportion to the actual richness and abundance of its products? There is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber, and occupy his land, under the pretence that he has reason to believe there is gold under the surface, or if existing, that he wishes to extract and remove it." At a later day the court took up the doctrine, that the precious metals belonged to the State by virtue of her sovereignty, and exploded it. The question arose in Moore vs. Smaw, reported in 17th California, and in disposing of it, speaking for the court, I said: "It is undoubtedly true that the United States held certain rights of sovereignty over the territory which is now embraced within the limits of California, only in trust for the future State, and that such rights at once vested in the new State upon her admission into the Union. But the ownership of the precious metals found in public or private lands was not one of those rights. Such ownership stands in no different relation to the sovereignty of a State than that of any other property which is the subject of barter and sale. Sovereignty is a term used to express the supreme political authority of an independent State or Nation. Whatever rights are essential to the existence of this authority are rights of sovereignty. Thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses, termed the right of eminent domain, are all rights of sovereignty, for they are rights essential to the existence of supreme political authority. In this country, this authority is vested in the people, and is exercised through the joint action of their federal and State governments. To the federal government is delegated the exercise of certain rights or powers of sovereignty; and with respect to sovereignty, rights and powers are synonymous terms; and the exercise of all other rights of sovereignty, except as expressly prohibited, is reserved to the people of the respective States, or vested by them in their local governments. When we say, therefore, that a State of the Union is sovereign, we only mean that she possesses supreme political authority, except as to those matters over which such authority is delegated to the federal government, or prohibited to the States; in other words, that she possesses all the rights and powers essential to the existence of an independent political organization, except as they are withdrawn by the provisions of the Constitution of the United States. To the existence of this political authority of the State--this qualified sovereignty, or to any part of it--the ownership of the minerals of gold and silver found within her limits is in no way essential. The minerals do not differ from the great mass of property, the ownership of which may be in the United States, or in individuals, without affecting in any respect the political jurisdiction of the State. They may be acquired by the State, as any other property may be, but when thus acquired she will hold them in the same manner that individual proprietors hold their property, and by the same right; by the right of ownership, and not by any right of sovereignty." And referring to the argument of counsel in the case in Plowden, I said that it would be a waste of time to show that the reasons there advanced in support of the right of the Crown to the mines could not avail to sustain any ownership of the State in them. The State takes no property by reason of "the excellency of the thing," and taxation furnishes all requisite means for the expenses of government. The convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coinage appertains to sovereignty. But the exercise of this right does not require the ownership of the precious metals by the State, nor by the federal government, where this right is lodged under our system, as the experience of every day demonstrates. I also held that, although under the Mexican law the gold and silver found in land did not pass with a grant of the land, a different result followed, under the common law, when a conveyance of land was made by an individual or by the government. By such conveyance everything passed in any way connected with the land, forming a portion of its soil or fixed to its surface. The doctrine of the right of the State by virtue of her sovereignty to the mines of gold and silver perished with this decision. It was never afterwards seriously asserted. But for holding what now seems so obvious, the judges were then grossly maligned as acting in the interest of monopolists and land owners, to the injury of the laboring class. The decisions, however, which caused for the time the greatest irritation, and excited the bitterest denunciation of the judges, related to the titles to land in the city of San Francisco, though in the end they proved to be of incalculable benefit. Upon the acquisition of California, there was a Mexican Pueblo upon the site of the city. The term _pueblo_ is aptly translated by the English word _town_. It has all the vagueness of that term, and is equally applicable to a settlement of a few individuals at a particular place, or to a regularly organized municipality. The _Pueblo_ of San Francisco was composed of a small population; but, as early as 1835, it was of sufficient importance to have an _Ayuntamiento_ or Town Council, composed of alcaldes and other officers, for its government. At the time of our acquisition of the country it was under the government of alcaldes or justices of the peace. By the laws of Mexico, then in force, _pueblos_ or towns, when once officially recognized as such by the appointment of municipal magistrates, became entitled to four square leagues of land, to be measured off and assigned to them by the officers of the government. Under these laws the city of San Francisco, as successor of the Mexican Pueblo, asserted a claim to such lands, to be measured off from the northern portion of the peninsula upon which the city is situated. And the alcaldes, assuming an authority similar to that possessed by _alcaldes_ in other _pueblos_, exercised the power of distributing these municipal lands in small parcels to settlers for building, cultivation, and other uses. When the forces of the United States took possession of the city, the alcaldes, holding under the Mexican government, were superseded by persons appointed by our military or naval officers having command of the place. With the increase of population which followed the discovery of gold, these magistrates were besieged by applicants for grants of land; and it was refreshing to see with what generous liberality they disposed of lots in the city--a liberality not infrequent when exercised with reference to other people's property. Lots, varying in size from fifty to one hundred varas square, (a measure nearly equal to our yard,) were given away as freely as they were asked, only a small fee to meet necessary charges for preparing and recording the transfers being demanded. Thus, for the lot occupied by the Lick House, and worth now nearly a million, only a few dollars, less I believe than twenty, were paid. And for the lot covered by the Grand Hotel, admitted to be now worth half a million, less than thirty-five dollars were paid. The authority of the alcaldes to dispose of the lands was questioned by many of the new immigrants, and the validity of their grants denied. They asserted that the land was part of the public property of the United States. Many holding these views gave evidence of the earnestness of their convictions by immediately appropriating to themselves as much vacant land in the city as they could conveniently occupy. Disputes followed, as a matter of course, between claimants under the alcalde grants and those holding as settlers, which often gave rise to long and bitter litigation. The whole community was in fact divided between those who asserted the existence of a _pueblo_ having a right to the lands mentioned, and the power of the alcaldes to make grants of them; and those who insisted that the land belonged to the United States. Early in 1850, after the State government was organized, the Legislature incorporated the City of San Francisco; and, as is usual with municipal bodies not restrained by the most stringent provisions, it contracted more debts than its means warranted, and did not always make provision for their payment at maturity. Numerous suits, therefore, were instituted and judgments were recovered against the city. Executions followed, which were levied upon the lands claimed by her as successor of the _pueblo_. Where the occupants denied the title of the city, they were generally indifferent to the sales by the sheriff. Property of immense value, in some cases many acres in extent, was, in consequence, often struck off to bidders at a merely nominal price. Upon the deeds of the officer, suits in ejectment were instituted in great numbers; and thus questions as to the existence of the alleged _pueblo_, and whether, if existing, it had any right to land, and the nature of such right, if any, were brought before the lower courts; and, finally, in a test case--Hart vs. Burnett--they found their way to the Supreme Court of the State. In the meantime a large number of persons had become interested in these sales, aside from the occupants of the land, and the greatest anxiety was manifested as to the decision of the Court. Previous decisions on the questions involved were not consistent; nor had they met the entire approval of the profession, although, the opinion prevailed generally that a Mexican pueblo of some kind, owning or having an interest in lands, had existed on the site of the city upon the acquisition of the country, and that such lands, like other property of the city not used for public purposes, were vendible on execution. In 1855, after the sale in respect to which the test case was made, the Council of the city passed "the Van Ness Ordinance," so called from the name of its author, the object of which was to settle and quiet, as far as practicable, the title of persons occupying land in the city. It relinquished and granted the right and interest of the city to lands within its corporate limits, as defined by the charter of 1851, with certain exceptions, to parties in the actual possession thereof, by themselves or tenants, on or before the first of January, 1855, if the possession were continued to the time of the introduction of the ordinance into the Common Council in June of that year; or, if interrupted by an intruder or trespasser, it had been or might be recovered by legal process. And it declared that, for the purposes of the act, all persons should be deemed in possession who held titles to land within the limits mentioned, by virtue of a grant made by the authorities of the pueblo, including alcaldes among them, before the 7th of July, 1846,--the day when the jurisdiction over the country is deemed to have passed from Mexico to the United States,--or by virtue of a grant subsequently made by those authorities, if the grant, or a material portion of it, had been entered in a proper book of record deposited in the office or custody of the recorder of the county of San Francisco on or before April 3d, 1850. This ordinance was approved by an act of the Legislature of the State in March, 1858, and the benefit of it and of the confirmatory act was claimed by the defendant in the test case. That case was most elaborately argued by able and learned counsel. The whole law of Mexico respecting _pueblos_, their powers, rights, and property, and whether, if possessing property, it was subject to forced sale, the effect upon such land of the change of sovereignty to the United States, the powers of alcaldes in disposing of the property of these municipalities, the effect of the Van Ness Ordinance, and the confirmatory act of the Legislature, were all discussed with a fullness and learning which left nothing unexplained or to be added. For weeks afterwards the judges gave the most laborious attention to the questions presented, and considered every point and the argument on both sides of it with anxious and painful solicitude to reach a just conclusion. The opinion of the court, prepared by Mr. Justice Baldwin, is without precedent for the exhaustive learning and research it exhibits upon the points discussed. The Court held, among other things, that, at the date of the conquest and cession of the country, San Francisco was a pueblo, having the rights which the law of Mexico conferred upon such municipal organizations; that as such pueblo it had proprietary rights to certain lands, which were held in trust for the public use of the city, and were not subject to seizure and sale under execution; that such portions as were not set apart for common use or special purposes could be granted in lots to private persons by its ayuntamiento or by alcaldes or other officers who represented or had succeeded to its powers; that the lands, and the trusts upon which they were held, were public and municipal in their nature, and since the organization of the State were under its control and supervision; that the act of the Legislature confirming the Van Ness Ordinance was a proper exercise of the power of the State, and vested in the possessors therein described, as against the city and State, a title to the lands mentioned; and that the city held the lands of the pueblo, not legally disposed of by its officers, unaffected by sheriff's sales under executions against her. This decision was of the greatest importance both to the city and the occupants of land within its limits. The Van Ness Ordinance had reserved from grant for the uses of the city all the lots which it then occupied or had set apart for public squares, streets, sites for school-houses, city hall and other buildings belonging to the corporation, and also such other lots as it might subsequently select for public purposes within certain designated limits. All these were by the decision at once released from any possible claim by virtue of sales on executions. All persons occupying lands not thus reserved were by the decision quieted in their possession, so far as any claim of the city or State could be urged against them. Property to the value of many millions was thereby rescued from the spoiler and speculator, and secured to the city or settler. Peace was given to thousands of homes. Yet for this just and most beneficent judgment there went up from a multitude, who had become interested in the sales, a fierce howl of rage and hate. Attacks full of venom were made upon Judge Baldwin and myself, who had agreed to the decision. No epithets were too vile to be applied to us; no imputations were too gross to be cast at us. The Press poured out curses upon our heads. Anonymous circulars filled with falsehoods, which malignity alone could invent, were spread broadcast throughout the city, and letters threatening assassination in the streets or by-ways were sent to us through the mail. The violence of the storm, however, was too great to last. Gradually it subsided and reason began to assert its sway. Other words than those of reproach were uttered; and it was not many months before the general sentiment of the people of the city was with the decision. A year did not elapse before the great good it had conferred upon the city and settler was seen and appreciated. Since then its doctrines have been repeatedly re-affirmed. They have been approved by the Supreme Court of the United States; and now no one doubts their soundness. After that decision there was still wanting for the complete settlement of titles in the city the confirmation by the tribunals of the United States of her claim to the lands. The act of Congress of March 3d, 1851, creating the Board of Land Commissioners, provided that all claims to land in California, by virtue of any right or title derived from the Spanish or Mexican government, should be presented to the board for examination and adjudication. Accordingly, the city of San Francisco, soon after the organization of the board, in 1852, presented her claim for four square leagues as successor of the _pueblo_, and asked for its confirmation. In December, 1854, the board confirmed the claim for a portion of the four square leagues, but not for the whole; the portion confirmed being embraced within the charter limits of 1851. The city was dissatisfied with this limitation, and appealed from the decision of the Commissioners to the District Court of the United States. An appeal was also taken by the United States, but was subsequently withdrawn. The case remained in the District Court without being disposed of until September, 1864, nearly ten years, when, under the authority of an act of Congress of July 1st of that year, it was transferred to the Circuit Court of the United States. Whilst the case was pending in the District Court, the population of the city had increased more than four-fold; and improvements of a costly character had been made in all parts of it. The magnitude of the interests which had thus grown up demanded that the title to the land upon which the city rested should be in some way definitely settled. To expedite this settlement, as well as the settlement of titles generally in the State, was the object of the act of July 1st, 1864. Its object is so stated in its title. It was introduced by Senator Conness, of California, who was alive to everything that could tend to advance the interests of the State. He felt that nothing would promote its peace and prosperity more than giving security to its land titles, and he labored earnestly to bring about that result. In framing the act, he consulted me, and at my suggestion introduced sections four, five, and seven, which I drafted and gave to him, but without the exception and proviso to the fifth section, which were added at the request of the Commissioner of the Land Office.[4] The fourth section authorized the District Court to transfer to the Circuit Court cases pending before it arising under the act of March 3d, 1851, affecting the title to lands within the corporate limits of a city or town, and provided that in such cases both the District and Circuit Judges might sit. By the fifth section, all the right and title of the United States to the land within the corporate limits of the city, as defined by its charter of 1851, were relinquished and granted to the city and its successors for the uses and purposes specified in the Van Ness Ordinance. The exceptions incorporated at the suggestion of the Commissioner of the Land Office related to parcels of land previously or then occupied by the United States for military, naval, or other public purposes, and such other parcels as might be subsequently designated for such purposes by the President within one year after the return to the land office of an approved plat of the exterior limits of the city. The holders of grants from the authorities of the _pueblo_ and the occupants of land within the limits of the charter of 1851 were thus quieted in their possessions. But as the claim of the city was for a much greater quantity, the case for its confirmation was still prosecuted. Under the fourth section it was transferred to the Circuit Court, as already stated; and it was soon afterwards brought to a hearing. On the 30th of October, 1864, it was decided. For some reason I do not now recall, the District Judge was unable to sit with me, and the case was, therefore, heard before me alone. I held that a pueblo of some kind existed at the site of the present city of San Francisco upon the cession of the country; that as such it was entitled to the possession of certain lands to the extent of four square leagues; and that the present city had succeeded to such rights, following, in these particulars, the decision which had previously been made in the case of Hart vs. Burnett, by the Supreme Court of the State, in which I had participated. I accordingly decided that the city was entitled to have her claim confirmed to four square leagues of land, subject to certain reservations. But I also added that the lands to which she was entitled had not been given to her by the laws of the former government in absolute property with full right of disposition and alienation, but to be held in trust for the benefit of the whole community, with such powers of use, disposition, and alienation as had been or might thenceforth be conferred upon her or her officers for the execution of the trust. The trust character of the city's title was expressed in the decree of confirmation. The decision was rendered on the 30th of October, 1864, as stated, and a decree was soon afterwards entered; but as a motion was made for a re-hearing, the control over it was retained by the Circuit Court until May of the following year. Upon the suggestion of counsel, it was then modified in some slight particulars so as to limit the confirmation to land above ordinary high water mark, as it existed at the date of the acquisition of the country, namely, the 7th of July, 1846. On the 18th of May, 1865, the decree was finally settled and entered. Appeals from it were prosecuted to the Supreme Court both by the United States and by the city; by the United States from the whole decree, and by the city from so much of it as included certain reservations in the estimate of the quantity of land confirmed. In October following I proceeded as usual to Washington to attend the then approaching term of the Supreme Court, and thought no more of the case until my attention was called to it by a most extraordinary circumstance. Just before leaving San Francisco Mr. Rulofson, a photographer of note, requested me to sit for a photograph, expressing a desire to add it to his gallery. I consented, and a photograph of a large size was taken. As I was leaving his rooms he observed that he intended to make some pictures of a small size from it, and would send me a few copies. On the morning of the 13th of January following (1866), at Washington, Mr. Delos Lake, a lawyer of distinction in California, at one time a District Judge of the State, and then District Attorney of the United States, joined me, remarking, as he did so, that the arrival of the California steamer at New York had been telegraphed, and he hoped that I had received some letters for him, as he had directed his letters to be forwarded to my care. I replied that when I left my room my messenger had not brought my mail; but if he would accompany me there we would probably find it. Accordingly, we proceeded to my room, where on the centre-table lay my mail from California, consisting of a large number of letters and papers. Among them I noticed a small package about an inch and a half thick, three inches in breadth, and three and a half in length. It was addressed as follows, the words being printed: [Illustration: Per steamer. [Three postage stamps.] Hon. STEPHEN J. FIELD, Washington, D.C.] It bore the stamp of the San Francisco post-office upon the address. My name had evidently been cut from the California Reports, but the words "Washington, D.C.," and "Per steamer," had been taken from a newspaper. The slips were pasted on the package. On the opposite side were the words in print: [Illustration: From GEO. H. JOHNSON'S Pioneer Gallery, 645 and 649 Clay street, SAN FRANCISCO.] As I took up the package I remarked that this must come from Rulofson;--no, I immediately added, Rulofson has nothing to do with the Pioneer Gallery. It then occurred to me that it might be a present for my wife, recollecting at the moment that the mail came by the steamer which sailed from San Francisco about Christmas time. It may be, I said to myself, a Christmas present for my wife. I will open it just far enough to see, and, if it be intended for her, I will close it and forward it to New York, where she was at the time. I accordingly tore off the covering and raised the lid just far enough to enable me to look inside. I was at once struck with the black appearance of the inside. "What is this, Lake?" I said, addressing myself to my friend. Judge Lake looked over my shoulder into the box, as I held it in my hand, and at once exclaimed, "It is a torpedo. Don't open it." I was startled by the suggestion, for the idea of a torpedo was the last thing in the world to occur to me. I immediately laid the package on the sill of the window, where it was subjected to a careful inspection by us both, so far as it could be made with the lid only an eighth of an inch open. Soon afterwards Judge Lake took the package to the Capitol, which was directly opposite to my rooms, and to the office of the Clerk of the Supreme Court, and showed it to Mr. Broom, one of the deputies. They dipped the package into water and left it to soak for some minutes. They then took it into the carriage way under the steps leading to the Senate Chamber, and shielding themselves behind one of the columns threw the box against the wall. The blow broke the hinge of the lid and exposed the contents. A murderous contrivance it was;--a veritable infernal machine! Twelve cartridges such as are used in a common pistol, about an inch in length, lay imbedded in a paste of some kind, covered with fulminating powder, and so connected with a bunch of friction matches, a strip of sand-paper, and a piece of linen attached to the lid, that on opening the box the matches would be ignited and the whole exploded. The package was sent to the War Department, and the following report was returned, giving a detailed description of the machine: WASHINGTON ARSENAL, _Jan. 16, 1866_. _Gen. A.B. Dyer, Chief of Ordnance, Washington, D.C._ SIR: Agreeably to your instructions, I have examined the explosive machine sent to this arsenal yesterday. It is a small miniature case containing twelve copper cartridges, such as are used in a Smith & Wesson pocket pistol, a bundle of sensitive friction matches, a strip of sand-paper, and some fulminating powder. The cartridges and matches are imbedded in common glue to keep them in place. The strip of sand-paper lies upon the heads of the matches. One end has been thrown back, forming a loop, through which a bit of thread evidently passed to attach it to the lid of the case. This thread may be seen near the clasp of the lid, broken in two. There are two wire staples, under which the strip of sand-paper was intended to pass to produce the necessary pressure on the matches. The thread is so fixed that the strip of sand-paper could be secured to the lid after it was closed. The whole affair is so arranged that the opening of the lid would necessarily ignite the matches, were it not that the lower end of the strip has become imbedded in the glue, which prevents it from moving. That the burning of the matches may explode the cartridges, there is a hole in each case, and all are covered with mealed powder. One of the cartridges has been examined and found to contain ordinary grain powder. Two of the cartridges were exploded in a closed box sent herewith. The effect of the explosion was an indentation on one side of the box. Very respectfully, your obedient servant, J.G. BENTON, _Major of Ord. and Bvt. Col. Comdg._ Between the outside covering and the box there were two or three folds of tissue-paper--placed there, no doubt, to prevent the possibility of an explosion from the stamping at the post office, or the striking against other packages during the voyage from San Francisco to New York. On the inside of the lid was pasted a slip cut from a San Francisco paper, dated October 31st, 1864, stating that on the day previous I had decided the case of the City against the United States, involving its claim to four square leagues of land, and giving the opening lines of my opinion. The Secretary of War, Mr. Stanton, immediately telegraphed in cypher to General Halleck, then in command in San Francisco, to take active measures to find out, if possible, the person who made and sent the infernal machine. General Halleck put the detectives of his department on the search. Others employed detectives of the San Francisco police--but all in vain. Suspicions were excited as to the complicity of different parties, but they were never sustained by sufficient evidence to justify the arrest of any one. The instrument, after remaining in the hands of the detectives in San Francisco for nearly two years, was returned to me and it is now in my possession.[5] It has often been a matter of wonder to me how it was that some good angel whispered to me not to open the box. My impetuous temperament would naturally have led me to tear it open without delay. Probably such hesitation in opening a package directed to me never before occurred, and probably never will again. Who knows but that a mother's prayer for the protection of her son, breathed years before, was answered then? Who can say that her spirit was not then hovering over him and whispering caution in his ear? That I should on that occasion have departed from my usual mode of action is strange--passing strange. * * * * * As already stated, the fifth section of the act of Congress of July 1st, 1864, which granted the interest of the United States to the lands within the charter limits of 1851 to the city and its successors, in trust for the benefit of possessors under the Van Ness Ordinance, among other things provided for certain reservations to be subsequently made by the President, within one year after an approved plat showing the exterior limits of the city had been filed in the land office. No such map was filed nor were any reservations made. The case on appeal in the meantime was not reached in the Supreme Court, and was not likely to be for a long period. Ascertaining from General Halleck that the Secretary of War would not recommend any further reservations to be made from the municipal lands, and that probably none would be made, I drew a bill to quiet the title of the city to all the lands embraced within the decree of confirmation, and gave it to Senator Conness, who being ready, as usual, to act for the interests of the city, immediately took charge of it and secured its passage in the Senate. In the House Mr. McRuer, Member of Congress from California, took charge of it, and with the assistance of the rest of the delegation from the State, procured its passage there. It was signed by the President and became a law on the 8th of March, 1866. By it all the right and title of the United States to the land covered by the decree of the Circuit Court were relinquished and granted to the city, and the claim to the land was confirmed, subject, however, to certain reservations and exceptions; and upon trust that all the land not previously granted to the city, should be disposed of and conveyed by the city to the parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of the act, in such quantities, and upon such terms and conditions, as the Legislature of the State of California might prescribe, except such parcels thereof as might be reserved and set apart by ordinance of the city for public uses. Not long afterwards both the appeals to the Supreme Court were dismissed by stipulation of parties. The litigation over the source of title to lands within the limits of the city, not disposed of by independent grants of the government previous to the acquisition of the country, was thus settled and closed. The title of the city rests, therefore, upon the decree of the Circuit Court entered on the 18th day of May, 1865, and this confirmatory act of Congress. It has been so adjudged by the Supreme Court of the United States.--(See Townsend vs. Greely, 5 Wall., 337; Grisar vs. McDowell, 6 Wall., 379.) The title of the city being settled, the municipal authorities took measures, under the provisions of the confirmatory act, to set apart lands for school-houses, hospitals, court-house buildings, and other public purposes, and through their exertions, instigated and encouraged by Mr. McCoppin, the accomplished and efficient Mayor of the city at that time, the Ocean Park, which looks out upon the Pacific Ocean and the Golden Gate, and is destined to be one of the finest parks in the world, was set apart and secured to the city for all time. As the grounds thus taken were, in many instances, occupied by settlers, or had been purchased from them, an assessment was levied by the city and sanctioned by the Legislature upon other lands conveyed to the occupants, as a condition of their receiving deeds from the city; and the money raised was applied to compensate those whose lands had been appropriated. [1] Mr. Justice Clifford. [2] Cornwall vs. Culver, 16 Cal., 429. [3] Van Reynegan vs. Bolton, 95 U.S., 33. [4] See Exhibit J, in Appendix. [5] See Exhibit K, in Appendix. HOSTILITY TO THE SUPREME COURT AFTER THE CIVIL WAR.--THE SCOFIELD RESOLUTION. The irritations and enmities created by the civil war did not end with the cessation of active hostilities. They were expressed whenever any acts of the military officers of the United States were called in question; or any legislation of the States or of Congress in hostility to the insurgents was assailed; or the validity of the "Reconstruction Acts" was doubted. And they postponed that cordial reconciliation which all patriotic men earnestly desired. The insurrection was overthrown after a contest which, for its magnitude and the number and courage of the belligerents, was without a parallel in history. The immense loss of life and destruction of property caused by the contest, and the burden of the enormous debt created in its prosecution, left a bitterness in the hearts of the victors which it was difficult to remove. The assassination of Mr. Lincoln added intensity to the feeling. That act of a madman, who had conceived the idea that he might become in our history what Brutus was in the history of Rome, the destroyer of the enemy of his country, was ascribed to a conspiracy of leading Confederates. The proclamation of the Secretary of War, offering a reward for the arrest of parties charged with complicity in the act, gave support to this notion. The wildest stories, now known to have had no foundation, were circulated and obtained ready credence among the people of the North, already wrought up to the highest pitch of excitement. They manifested, therefore, great impatience when a doubt was cast upon the propriety or validity of the acts of the government, or of its officers, which were taken for the suppression of the rebellion or "the reconstruction" of the States; and to question their validity was almost considered proof of hostility to the Union. By those who considered the union indissoluble, except by the common consent of the people of the several States, the organization known as the Confederate States could only be regarded as unlawful and rebellious, to be suppressed, if necessary, by force of arms. The Constitution prohibits any treaty, alliance, or confederation by one State with another, and it declares on its face that it is the supreme law of the land. The Confederate government, therefore, could only be treated by the United States as the military representative of the insurrection against their authority. Belligerent rights were accorded to its armed forces in the conduct of the war, and they thus had the standing and rights of parties engaged in lawful warfare. But no further recognition was ever given to it, and when those forces were overthrown its whole fabric disappeared. But not so with the insurgent States which had composed the Confederacy. They retained the same form of government and the same general system of laws, during and subsequent to the war, which they had possessed previously. Their organizations as distinct political communities were not destroyed by the war, although their relations to the central authority were changed. And their acts, so far as they did not impair or tend to impair the supremacy of the general government, or the rights of citizens of the loyal States, were valid and binding. All the ordinary authority of government for the protection of rights of persons and property, the enforcement of contracts, the punishment of crime, and the due order of society, continued to be exercised by them as though no civil war had existed. There was, therefore, a general expectation throughout the country, upon the cessation of actual hostilities, that these States would be restored to their former relations in the Union as soon as satisfactory evidence was furnished to the general government that resistance to its authority was overthrown and abandoned, and its laws were enforced and obeyed. Some little time might elapse before this result would clearly appear. It was not expected that they would be immediately restored upon the defeat of the armies of the Confederacy, nor that their public men, with the animosities of the struggle still alive, would at once be admitted into the councils of the nation, and allowed to participate in its government. But whenever it was satisfactorily established that there would be no renewal of the struggle and that the laws of the United States would be obeyed, it was generally believed that the restoration of the States would be an accomplished fact. President Johnson saw in the institution of slavery the principal source of the irritation and ill-feeling between the North and the South, which had led to the war. He believed, therefore, that its abolition should be exacted, and that this would constitute a complete guaranty for the future. At that time the amendment for its abolition, which had passed the two Houses of Congress, was pending before the States for their action. He was of opinion, and so expressed himself in his first message to Congress, that its ratification should be required of the insurgent States on resuming their places in the family of the Union; that it was not too much, he said, to ask of them "to give this pledge of perpetual loyalty and peace." "Until it is done," he added, "the past, however much we may desire it, will not be forgotten. The adoption of the amendment re-unites us beyond all power of disruption. It heals the wound that is still imperfectly closed; it removes slavery, the element which has so long perplexed and divided the country; it makes of us once more a united people, renewed and strengthened, bound more than ever to mutual affection and support." It would have been most fortunate for the country had this condition been deemed sufficient and been accepted as such. But the North was in no mood for a course so simple and just. Its leaders clamored for more stringent measures, on the ground that they were needed for the protection of the freedmen, and the defeat of possible schemes for a new insurrection. It was not long, therefore, before a system of measures was adopted, which resulted in the establishment at the South of temporary governments, subject to military control, the offices of which were filled chiefly by men alien to the States and indifferent to their interests. The misrule and corruption which followed are matters of public history. It is no part of my purpose to speak of them. I wish merely to refer to the state of feeling existing upon the close of the civil war as introductory to what I have to say of the unfriendly disposition manifested at the North towards the Supreme Court and some of its members, myself in particular. Acts of the military officers, and legislation of some of the States and of Congress, during and immediately succeeding the war, were soon brought to the consideration of the Court. Its action thereon was watched by members of the Republican party with manifest uneasiness and distrust. Its decision in the Dred Scott case had greatly impaired their confidence in its wisdom and freedom from political influences. Many of them looked upon that decision as precipitating the war upon the country, by the sanction it gave to efforts made to introduce slavery into the Territories; and they did not hesitate to express their belief that the sympathies of a majority of the Court were with the Confederates. Intimations to that effect were thrown out in some of the journals of the day, at first in guarded language, and afterwards more directly, until finally it came to be generally believed that it was the purpose of the Court, if an opportunity offered, to declare invalid most of the legislation relating to the Southern States which had been enacted during the war and immediately afterwards. Nothing could have been more unjust and unfounded. Many things, indeed, were done during the war, and more after its close, which could not be sustained by any just construction of the limitations of the Constitution. It was to be expected that many things would be done in the heat of the contest which could not bear the examination of calmer times. Mr. Chief Justice Chase expressed this fact in felicitous language when speaking of his own change of views as to the validity of the provision of law making government notes a legal tender, he said: "It is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the Republic almost universal, different views, never before entertained by American statesmen or jurists, were adopted by many. The time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. If power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. Many who doubted yielded their doubts; many who did not doubt were silent. Those who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure. Not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace, and under the influence of the calmer time, reconsidered this conclusion, and now concur in those which we have just announced." Similar language might be used with reference to other things done during the war and afterwards, besides making government notes a legal tender. The Court and all its members appreciated the great difficulties and responsibilities of the government, both in the conduct of the war, and in effecting an early restoration of the States afterwards, and no disposition was manifested at any time to place unnecessary obstacles in its way. But when its measures and legislation were brought to the test of judicial judgment there was but one course to pursue, and that was to apply the law and the Constitution as strictly as though no war had ever existed. The Constitution was not one thing in war, and another in peace. It always spoke the same language, and was intended as a rule for all times and occasions. It recognized, indeed, the possibility of war, and, of course, that the rules of war had to be applied in its conduct in the field of military operations. The Court never presumed to interfere there, but outside of that field, and with respect to persons not in the military service within States which adhered to the Union, and after the war in all the States, the Court could not hesitate to say that the Constitution, with all its limitations upon the exercise of executive and legislative authority, was, what it declares on its face to be, the supreme law of the land, by which all legislation, State and federal, must be measured. The first case growing out of the acts of military officers during the war, which attracted general attention and created throughout the North an uneasy feeling, was the Milligan case, which was before the Court on habeas corpus. In October, 1864, Milligan, a citizen of the United States and a resident of Indiana, had been arrested by order of the military commander of the district and confined in a military prison near the capital of the State. He was subsequently, on the 21st of the same month, put on trial before a military commission convened at Indianapolis, in that State, upon charges of: 1st. Conspiring against the government of the United States; 2d. Affording aid and comfort to the rebels against the authority of the United States; 3d. Inciting insurrection; 4th. Disloyal practices; and 5th. Violations of the laws of war; and was found guilty and sentenced to death by hanging. He had never been in the military service; there was no rebellion in Indiana; and the civil courts were open in that State and in the undisturbed exercise of their jurisdiction. The sentence of the military commission was affirmed by the President, who directed that it should be carried into immediate execution. The condemned thereupon presented a petition to the Circuit Court of the United States in Indiana for a writ of habeas corpus, praying to be discharged from custody, alleging the illegality of his arrest and of the proceedings of the military commission. The judges of the Circuit Court were divided in opinion upon the question whether the writ should be issued and the prisoner be discharged, which, of course, involved the jurisdiction of the military commission to try the petitioner. Upon a certificate of the division the case was brought to the Supreme Court at the December term of 1865. The case has become historical in the jurisprudence of the country, and it is unnecessary to state the proceedings at length. Suffice it to say that it was argued with great ability by eminent counsel--consisting of Mr. Joseph E. McDonald, now U.S. Senator from Indiana, Mr. James A. Garfield, a distinguished member of Congress, Mr. Jeremiah S. Black, the eminent jurist of Pennsylvania, and Mr. David Dudley Field, of New York, for the petitioner; and by Mr. Henry Stanbery, the Attorney-General, and Gen. B.F. Butler, for the government. Their arguments were remarkable for learning, research, ability, and eloquence, and will repay the careful perusal not only of the student of law, but of all lovers of constitutional liberty. Only a brief synopsis of them is given in the report of the case in 4th Wallace. The decision of the Court was in favor of the liberty of the citizen. Its opinion was announced by Mr. Justice Davis, and it will stand as a perpetual monument to his honor. It laid down in clear and unmistakable terms the doctrine that military commissions organized during the war, in a State not invaded nor engaged in rebellion, in which the federal courts were open and in the undisturbed exercise of their judicial functions, had no jurisdiction to try a citizen who was not a resident of a State in rebellion, nor a prisoner of war, nor a person in the military or naval service; and that Congress could not invest them with any such power; and that in States where the courts were thus open and undisturbed the guaranty of trial by jury contained in the Constitution was intended for a state of war as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances. This decision was concurred in by Justices Nelson, Grier, Clifford, and myself, then constituting, with Justice Davis, a majority of the Court. At this day it seems strange that its soundness should have been doubted by any one, yet it was received by a large class--perhaps a majority of the Northern people--with disfavor, and was denounced in unmeasured terms by many influential journals. It was cited as conclusive evidence of the hostility of the Court to the acts of the government for the suppression of the rebellion. The following, taken from the _Daily Chronicle_ of January 14th, 1867, a journal of Washington, edited by Mr. Forney, then Secretary of the Senate, is a fair sample of the language applied to the decision: "The opinion of the Supreme Court on one of the most momentous questions ever submitted to a judicial tribunal, has not startled the country more by its far-reaching and calamitous results, than it has amazed jurists and statesmen by the poverty of its learning and the feebleness of its logic. It has surprised all, too, by its total want of sympathy with the spirit in which the war for the Union was prosecuted, and, necessarily, with those great issues growing out of it, which concern not only the life of the Republic, but the very progress of the race, and which, having been decided on the battle-field, are now sought to be reversed by the very theory of construction which led to rebellion." At the same term with the Milligan case the test-oath case from Missouri was brought before the Court and argued. In January, 1865, a convention had assembled in that State to amend its constitution. Its members had been elected in November previous. In April, 1865, the constitution, as revised and amended, was adopted by the convention, and in June following by the people. Elected, as the members were, in the midst of the war, it exhibited throughout traces of the animosities which the war had engendered. By its provisions the most stringent and searching oath as to past conduct known in history was required, not only of officers under it, but of parties holding trusts and pursuing avocations in no way connected with the administration of the government. The oath, divided into its separates parts, contained more than thirty distinct affirmations touching past conduct, and even embraced the expression of sympathies and desires. Every person unable to take the oath was declared incapable of holding, in the State, "any office of honor, trust, or profit under its authority, or of being an officer, councilman, director, or trustee, or other manager of any corporation, public or private, now existing or hereafter established by its authority, or of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real estate or other property in trust for the use of any church, religious society, or congregation." And every person holding, at the time the amended constitution took effect, any of the offices, trusts, or positions mentioned, was required, within sixty days thereafter, to take the oath; and, if he failed to comply with this requirement, it was declared that his office, trust, or position should _ipso facto_ become vacant. No person, after the expiration of the sixty days, was permitted, without taking the oath, "to practice as an attorney or counsellor-at-law," nor, after that period could "any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman, of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages." Fine and imprisonment were prescribed as a punishment for holding or exercising any of "the offices, positions, trusts, professions, or functions" specified, without having taken the oath; and false swearing or affirmation in taking it was declared to be perjury, punishable by imprisonment in the penitentiary. Mr. Cummings of Missouri, a priest of the Roman Catholic Church, was indicted and convicted in one of the Circuit Courts of that State, of the crime of teaching and preaching as a priest and minister of that religious denomination without having first taken the oath thus prescribed, and was sentenced to pay a fine of five hundred dollars and to be committed to jail until the same was paid. On appeal to the Supreme Court of the State the judgment was affirmed, and the case was brought on a writ of error to our court. It was there argued with great learning and ability by Mr. Montgomery Blair, of Washington, Mr. David Dudley Field, of New York, and Mr. Reverdy Johnson, of Maryland, for Mr. Cummings; and by Mr. G.P. Strong and Mr. John B. Henderson, of Missouri, the latter then United States Senator for the State. It was evident, after a brief consideration of the case, that the power asserted by the State of Missouri to exact this oath for past conduct from parties, as a condition of their continuing to pursue certain professions, or to hold certain trusts, might, if sustained, be often exercised in times of excitement to the oppression, if not ruin, of the citizen. For, if the State could require the oath for the acts mentioned, it might require it for any other acts of one's past life, the number and character of which would depend upon the mere will of its legislature. It might compel one to affirm, under oath, that he had never violated the ten commandments, nor exercised his political rights except in conformity with the views of the existing majority. Indeed, under this kind of legislation, the most flagrant wrongs might be committed and whole classes of people deprived, not only of their political, but of their civil rights. It is difficult to speak of the whole system of expurgatory oaths for past conduct without a shudder at the suffering and oppression they were not only capable of effecting but often did effect. Such oaths have never been exacted in England, nor on the Continent of Europe; at least I can recall no instance of the kind. Test-oaths there have always been limited to an affirmation on matters of present belief, or as to present disposition towards those in power. It was reserved for the ingenuity of legislators in our country during the civil war to make test-oaths reach to past conduct. The Court held that enactments of this character, operating, as they did, to deprive parties by legislative decree of existing rights for past conduct, without the formality and the safeguard of a judicial trial, fell within the inhibition of the Constitution against the passage of bills of attainder. In depriving parties of existing rights for past conduct, the provisions of the constitution of Missouri imposed, in effect, a punishment for such conduct. Some of the acts for which such deprivation was imposed were not punishable at the time; and for some this deprivation was added to the punishments previously prescribed, and thus they fell under the further prohibition of the Constitution against the passage of an _ex post facto_ law. The decision of the Court, therefore, was for the discharge of the Catholic priest. The judgment against him was reversed, and the Supreme Court of Missouri was directed to order the inferior court by which he was tried to set him at liberty. Immediately following the case of Cummings that of _Ex-parte_ Garland was argued, involving the validity of the iron-clad oath, as it was termed, prescribed for attorneys and counsellors-at-law by the act of Congress of January 24th, 1865. Mr. A.H. Garland, now United States Senator from Arkansas, had been a member of the Bar of the Supreme Court of the United States before the civil war. When Arkansas passed her ordinance of secession and joined the Confederate States, he went with her, and was one of her representatives in the Congress of the Confederacy. In July, 1865, he received from the President a full pardon for all offences committed by his participation, direct or implied, in the rebellion. At the following term of the Court he produced his pardon and asked permission to continue to practice as an attorney and counsellor without taking the oath required by the act of Congress, and the rule of the Court made in conformity with it, which he was unable to take by reason of the offices he had held under the Confederate government. The application was argued by Mr. Matthew H. Carpenter, of Wisconsin, and Mr. Reverdy Johnson, of Maryland, for the petitioner--Mr. Garland and Mr. Marr, another applicant for admission, who had participated in the rebellion, filing printed arguments--and by Mr. Speed, of Kentucky, and Mr. Henry Stanbery, the Attorney-General, on the other side. The whole subject of expurgatory oaths was discussed, and all that could be said on either side was fully and elaborately presented. The Court in its decision followed the reasoning of the Cummings case and held the law invalid, as applied to the exercise of the petitioner's right to practice his profession; that such right was not a mere indulgence, a matter of grace and favor, revocable at the pleasure of the Court, or at the command of the legislature; but was a right of which the petitioner could be deprived only by the judgment of the Court for moral or professional delinquency. The Court also held that the pardon of the petitioner released him from all penalties and disabilities attached to the offence of treason committed by his participation in the rebellion, and that, so far as that offence was concerned, he was placed beyond the reach of punishment of any kind. But to exclude him by reason of that offence--that is, by requiring him to take an oath that he had never committed it--was to enforce a punishment for it notwithstanding the pardon; and that it was not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency. I had the honor to deliver the opinion of the Court in these cases--the Cummings case and the Garland case. At the present day both opinions are generally admitted to be sound, but when announced they were received by a portion of the Northern Press with apparent astonishment and undisguised condemnation. It is difficult to appreciate at this day the fierceness with which the majority of the Court was assailed. That majority consisted of Justices Wayne, Nelson, Grier, Clifford, and myself. I was particularly taken to task, however, as it was supposed--at least I can only so infer from the tone of the Press--that because I had been appointed by Mr. Lincoln, I was under some sort of moral obligation to support all the measures taken by the States or by Congress during the war. The following, respecting the opinion in the Garland case, from the editor of the _Daily Chronicle_, of Washington, to the _Press_, of Philadelphia, under date of January 16, 1867, is moderate in its language compared with what appeared in many other journals: "Dred Scott Number Three has just been enacted in the Supreme Court of the United States, Justice Field, of California, taking the leading part as the representative of the majority decision against the constitutionality of the iron-clad test-oath, to prevent traitors from practicing before that high tribunal. I understand it takes the ground that, as the law is a living or profession, the oath cannot be insisted upon to take that living away, and that the President's pardon restores all such rights. The country has been repeatedly admonished that such a decision would be made about this time; nevertheless, a very considerable sensation was created when it was officially enunciated. All these movements are but preparations for a counter-revolution in the interest of slavery and treason." ---- "I learn that the opinion of Justice Field against the test-oath, like that against military trials in time of war, goes outside of the immediate case in issue, and indulges in a fierce onslaught upon test-oaths in general. If so, it will only add another reason for such a re-organization as will prevent the judges in the last resort from becoming the mere agents of party, or the mere defenders of rebellion. The adage constantly quoted, yet never out of fashion, that 'Whom the Gods wish to destroy they first make mad,' is having a pointed illustration in these successive judicial assaults upon the rights of the people. Although the Supreme Judges hold for life, there is at once precedent, necessity, and law for such a change in the present system as will in a short time make it a fearless interpreter of republican institutions, instead of the defender and apologist of treason." The decisions were announced on the 14th of January, 1867. On the 22d of the month, Mr. Boutwell, from Massachusetts, introduced a bill into the House far more stringent in its provisions than the act of Congress just declared invalid. It was a pitiable exhibition of hate and vengeance against all persons who had been engaged, directly or indirectly, in the rebellion. It declared that no person who had been thus engaged should be permitted to act as an attorney and counsellor in any courts of the United States; and made it the duty of the judges, when it was suggested in open court, or when they had reason to believe that any person was thus debarred, to enquire and ascertain whether he had been so engaged, and if the court was of opinion that such was the fact, he was to be excluded. The court was thus, upon the suggestion of any one, to be turned into a tribunal for the summary trial of the accused without the ordinary safeguards for the protection of his rights. In introducing it Mr. Boutwell, referring to the decision of the Court, said that-- "If there be five judges upon the bench of the highest tribunal who have not that respect for themselves to enact rules, and to enforce proper regulations, by which they will protect themselves from the contamination of conspirators and traitors against the government of the country, then the time has already arrived when the legislative department of the government should exercise its power to declare who shall be officers of the government in the administration of the law in the courts of the Union; and this bill is for that purpose." And he called for the previous question upon it. In subsequently advocating its passage, he said: "I say here upon my responsibility, with reference to the recent decision of the Supreme Court, that it is an offence to the dignity and respectability of the nation that this tribunal, under the general authority vested in it under the Constitution and laws, does not protect itself from the contamination of rebels and traitors, until the rebellion itself shall be suppressed and those men shall be restored to their former rights as citizens of the country." This language was used in 1867, and the last gun of the war had been fired in May, 1865. It showed the irritation of violent partisans of the North against the Court because it gave no sanction to their vindictive and proscriptive measures. The bill was passed, under a suspension of the rules, by a vote of 111 to 40.[1] The Reconstruction Acts, so-called--that is, "An act to provide for the more efficient government of the rebel States," of March 2d, 1867, and an act of the 23d of the same month, supplementary to the former--were at once attacked, as may well be supposed, as invalid, unconstitutional, and arbitrary measures of the government; and various steps were taken at an early day to bring them to the test of judicial examination and arrest their enforcement. Those acts divided the late insurgent States, except Tennessee, into five military districts, and placed them under military control to be exercised until constitutions, containing various provisions stated, were adopted and approved by Congress, and the States declared to be entitled to representation in that body. In the month of April following the State of Georgia filed a bill in the Supreme Court, invoking the exercise of its original jurisdiction, against Stanton, Secretary of War, Grant, General of the Army, and Pope, Major-General, assigned to the command of the Third Military District, consisting of the States of Georgia, Florida, and Alabama; to restrain those officers from carrying into effect the provisions of those acts. The bill set forth the existence of the State of Georgia as one of the States of the Union; the civil war in which she, with other States forming the Confederate States, had been engaged with the government of the United States; the surrender of the Confederate armies in 1865, and her submission afterwards to the Constitution and laws of the Union; the withdrawal of the military government from Georgia by the President as Commander-in-Chief of the Army of the United States; the re-organization of the civil government of the State under his direction and with his sanction; and that the government thus re-organized was in the full possession and enjoyment of all the rights and privileges, executive, legislative, and judicial, belonging to a State in the Union under the Constitution, with the exception of a representation in the Senate and House of Representatives. The bill alleged that the acts were designed to overthrow and annul the existing government of the State, and to erect another and a different government in its place, unauthorized by the Constitution and in defiance of its guarantees; that the defendants, acting under orders of the President, were about to set in motion a portion of the army to take military possession of the State, subvert her government, and subject her people to military rule. The presentation of this bill and the argument on the motion of the Attorney-General to dismiss it produced a good deal of hostile comment against the Judges, which did not end when the motion was granted. It was held that the bill called for judgment upon a political question, which the Court had no jurisdiction to entertain.[2] Soon afterwards the validity of the Reconstruction Acts was again presented in the celebrated McArdle case, and in such a form that the decision of the question could not well be avoided. In November, 1867, McArdle had been arrested and held in custody by a military commission organized in Mississippi under the Reconstruction Acts, for trial upon charges of (1) disturbance of the public peace; (2) inciting to insurrection, disorder, and violence; (3) libel; and (4) impeding reconstruction. He thereupon applied to the Circuit Court of the United States for the District of Mississippi for a writ of habeas corpus, in order that he might be discharged from his alleged illegal imprisonment. The writ was accordingly issued, but on the return of the officer showing the authority under which the petitioner was held, he was ordered to be remanded. From that judgment he appealed to the Supreme Court. Of course, if the Reconstruction Acts were invalid, the petitioner could not be held, and he was entitled to his discharge. The case excited great interest throughout the country. Judge Sharkey and Robert J. Walker, of Mississippi, David Dudley Field and Charles O'Connor, of New York, and Jeremiah S. Black, of Pennsylvania, appeared for the appellant; and Matthew H. Carpenter, of Wisconsin, Lyman Trumbull, of Illinois, and Henry Stanbery, the Attorney-General, appeared for the other side. The hearing of it occupied four days, and seldom has it been my fortune during my judicial life, now (1877) of nearly twenty years, to listen to arguments equal in learning, ability, and eloquence. The whole subject was exhausted. As the arguments were widely published in the public journals, and read throughout the country, they produced a profound effect. The impression was general that the Reconstruction Acts could not be sustained; that they were revolutionary and destructive of a republican form of government in the States, which the Constitution required the Federal government to guarantee. I speak now merely of the general impression. I say nothing of the fact, as the Court never expressed its opinion in judgment. The argument was had on the 2d, 3d, 4th, and 9th of March, 1868, and it ought to have been decided in regular course of proceedings when it was reached on the second subsequent consultation day, the 21st. The Judges had all formed their conclusions, and no excuse was urged that more time was wanted for examination. In the meantime an act was quietly introduced into the House, and passed, repealing so much of the law of February 5th, 1867, as authorized an appeal to the Supreme Court from the judgment of the Circuit Court on writs of _habeas corpus_, or the exercise of jurisdiction on appeals already taken. The President vetoed the bill, but Congress passed it over his veto, and it became a law on the 27th of the month.[3] Whilst it was pending in Congress the attention of the Judges was called to it, and in consultation on the 21st they postponed the decision of the case until it should be disposed of. It was then that Mr. Justice Grier wrote the following protest, which he afterwards read in Court: IN RE } MCARDLE.} PROTEST OF MR. JUSTICE GEIER. This case was fully argued in the beginning of this month. It is a case that involves the liberty and rights not only of the appellant, but of millions of our fellow-citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of this Court. By the postponement of the case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for legislation to interpose to supersede our action and relieve us from our responsibility. I am not willing to be a partaker either of the eulogy or opprobrium that may follow; and can only say: "Pudet haec opprobria nobis, Et dici potuisse; et non potuisse repelli."[4] R.C. GRIER. I am of the same opinion with my brother Grier, and unite in his protest. FIELD, J. After the passage of the repealing act, the case was continued; and at the ensuing term the appeal was dismissed for want of jurisdiction.--(7 Wall., 506.) The record had been filed early in the term, and, as the case involved the liberty of the citizen, it was advanced on the calendar on motion of the appellant. From that time until its final disposition the Judges were subjected to close observation, and most of them to unfriendly comment. Their every action and word were watched and canvassed as though national interests depended upon them. I was myself the subject of a most extraordinary exhibition of feeling on the part of members of the lower house of Congress, the immediate cause of which was a circumstance calculated to provoke merriment. Towards the close of January, 1868, I was invited to a dinner given by Mr. Samuel Ward to the Secretary of the Treasury, Mr. McCullough. It was understood that the dinner was to be one of unusual excellence, and that gentlemen of distinction in Congress would be present. As some of the invited guests desired to go to New York on the same evening, the hour was fixed at five. A distinguished party assembled at that time at the rooms of Welcker, a noted restaurateur in Washington. Our host, Mr. Ward, was a character deserving of special notice. He had been a member of the noted firm of bankers, Prime, Ward & King, of New York; and afterwards represented our government in Brazil. He was an accomplished linguist, familiar with several languages, ancient and modern. He was a profound mathematician, and had read, without the assistance of Bowditch's translation, Laplace's celebrated work, the "Mécanique Céleste." He passed most of his time during the sessions of Congress in Washington, looking after the interests of bankers and others in New York, as they might be affected by pending legislation. Though called "King of the Lobby," he had little of the character of the lobbyist. He was a gentleman in manners and education, and as such he always drew the company of gentlemen to his entertainments. On the occasion mentioned, some of the brightest spirits of Congress were present. As we took our seats at the table I noticed on the menu a choice collection of wines, Johannisberg among others. The dinner was sumptuous and admirably served. Our host saw that the appropriate wine accompanied the successive courses. As the dinner progressed, and the wine circulated, the wit of the guests sparkled. Story and anecdote, laughter and mirth abounded, and each guest seemed joyous and happy. At about eight song had been added to other manifestations of pleasure. I then concluded that I had better retire. So I said to my host, that if he would excuse me, I would seek the open air; and I left. Just at this moment Mr. Rodman M. Price, formerly Governor of New Jersey, made his appearance and exclaimed, "How is this? I was invited to dinner at eight"--producing his card of invitation. "Look again," said Ward, "and you will see that your eight is a five," And so it was, "But never mind," said Ward; "the dinner is not over. Judge Field has just left. Take his seat." And so Price took my place. He had been travelling in the Southern States, and had been an observer of the proceedings of various State conventions then in session to frame constitutions under the Reconstruction Acts, which he termed "Congo Conventions." To the amusement of the party he gave an account of some curious scenes he had witnessed in these conventions; and wound up one or two of his stories by expressing his opinion that the whole reconstruction measures would soon be "smashed up" and sent to "kingdom come" by the Supreme Court. The loud mirth and the singing attracted the attention of news-hunters for the Press--item gatherers in the rooms below. Unfortunately one of these gentlemen looked into the banquet-hall just as Price had predicted the fate of the reconstruction measures at the hands of the Supreme Court. He instantly smelt news, and enquired of one of the waiters the name of the gentleman who had thus proclaimed the action of the Court. The waiter quietly approached the seat of the Governor, and, whilst he was looking in another direction, abstracted the card near his plate which bore my name. Here was, indeed, a grand item for a sensational paragraph. Straight way the newsgatherer communicated it to a newspaper in Washington, and it appeared under an editorial notice. It was also telegraphed to a paper in Baltimore. But it was too good to be lost in the columns of a newspaper. Mr. Scofield, a member of Congress from Pennsylvania, on the 30th of January, 1868, asked and obtained unanimous consent of the House to present the following preamble and resolution: "Whereas it is editorially stated in the _Evening Express_, a newspaper published in this city, on the afternoon of Wednesday, January 29, as follows: 'At a private gathering of gentlemen of both political parties, one of the Justices of the Supreme Court spoke very freely concerning the reconstruction measures of Congress, and declared in the most positive terms that all those laws were unconstitutional, and that the Court would be sure to pronounce them so. Some of his friends near him suggested that it was quite indiscreet to speak so positively; when he at once repeated his views in a more emphatic manner; 'and whereas several cases under said reconstruction measures are now pending in the Supreme Court: Therefore, be it-- "_Resolved_, That the Committee on the Judiciary be directed to enquire into the truth of the declarations therein contained, and report whether the facts as ascertained constitute such a misdemeanor in office as to require this House to present to the Senate articles of impeachment against said Justice of the Supreme Court; and that the committee have power to send for persons and papers, and have leave to report at any time." An excited debate at once sprung up in the House, and in the course of it I was stated to be the offending Justice referred to. Thereupon the members for California vouched for my loyalty during the war. Other members wished to know whether an anonymous article in a newspaper was to be considered sufficient evidence to authorize a committee of the House to enquire into the private conversation of members of the Supreme Court. The mover of the resolution, Mr. Scofield, declared that he knew nothing of the truth of the statement in the paper, but deemed it sufficient authority for his action, and moved the previous question on the resolution. Several of the members protested against the resolution, declaring that it was unworthy of the House to direct an investigation into the conduct of a judicial officer upon a mere newspaper statement. But it was of no use. The resolution was adopted by a vote of 97 to 57--34 not voting. Some members, indeed, voted for its passage, stating that it was due to myself that I should be vindicated from the charge implied in the debate; the force of which reason I have never been able to appreciate. The resolution was evidently intended to intimidate me, and to act as a warning to all the Judges as to what they might expect if they presumed to question the wisdom or validity of the reconstruction measures of Congress. What little effect it had on me my subsequent course in the McArdle case probably showed to the House. I had only one feeling for the movement--that of profound contempt; and I believe that a similar feeling was entertained by every right-thinking person having any knowledge of the proceeding. The facts of the case soon became generally known, and created a good deal of merriment in Washington. But all through the country the wildest stories were circulated. Communications of a sensational character relating to the matter were published in the leading journals. Here is one which appeared in the New York _Evening Post_ from its correspondent: "It is the intention of the committee to examine the matter thoroughly, and in view of this a large number of witnesses have been summoned to appear on Friday. "The friends of Justice Field are endeavoring to hush the matter up, and, if possible, to avert an investigation; but in this they will be disappointed, for the members of the Judiciary Committee express themselves firmly determined to sift the case, and will not hesitate to report articles of impeachment against Justice Field if the statements are proved." Other papers called for the strictest scrutiny and the presentation of articles of impeachment, representing that I was terribly frightened by the threatened exposure. So for some months I was amused reading about my supposed terrible excitement in anticipation of a threatened removal from office. But, as soon as the author of the objectionable observations was ascertained, the ridiculous nature of the subsequent proceedings became manifest. The Chairman of the Judiciary Committee, Mr. Wilson, of Iowa, occupied a seat next to me at Mr. Ward's dinner, and knew, of course, that, so far as I was concerned, the whole story was without foundation. And so he said to his associates on the Judiciary Comnfittee. Near the close of the session--on June 18th, 1868--the committee were discharged from the further consideration of the resolution, and it was laid on the table--a proceeding which was equivalent to its indefinite postponement. The amusing mistake which gave rise to this episode in the lower house of Congress would be unworthy of the notice I have taken of it, except that it illustrates the virulent and vindictive spirit which occasionally burst forth for some time after the close of the war, and which, it is to be greatly regretted, is not yet wholly extinguished. [1] Congressional Globe, 39th Congress, 2d Session, Part I., pp. 646-649. When the bill reached the Senate it was referred to the Judiciary Committee, and by them to a sub-committee of which Mr. Stewart, Senator from Nevada, was chairman. He retained it until late in the session, and upon his advice, the committee then recommended its indefinite postponement. The bill was thus disposed of. [2] 6th Wallace, 50. [3] 15 Stats. at Large, 44. [4] "It fills us with shame that these reproaches can be uttered, and cannot be repelled." The words are found in Ovid's Metamorphoses, Book I., lines 758-9. In some editions the last word is printed _refelli_. THE MOULIN VEXATION. Soon after my appointment to the Bench of the U.S. Supreme Court, I had a somewhat remarkable experience with a Frenchman by the name of Alfred Moulin. It seems that this man, sometime in the year 1854 had shipped several sacks of onions and potatoes on one of the mail steamers, from San Francisco to Panama. During the voyage the ship's store of fresh provisions ran out, and the captain appropriated the vegetables, and out of this appropriation originated a long and bitter prosecution, or rather persecution, on the part of Moulin, who proved to be not only one of the most malignant, but one of the most persevering and energetic men I have ever known. Upon the return of the steamer from Panama to San Francisco, Moulin presented himself at the steamship company's office, and complained, as he properly might, of the appropriation of his property, and demanded compensation. The company admitted his claim and expressed a willingness to make him full compensation; but when it came to an adjustment of it, Moulin preferred one so extravagant that it could not be listened to. The property at the very most was not worth more than one or two hundred dollars, but Moulin demanded thousands; and when this was refused, he threatened Messrs. Forbes and Babcock, the agents of the company, with personal violence. These threats he repeated from time to time for two or three years, until at length becoming annoyed and alarmed by his fierce manner, they applied to the police court and had him bound over to keep the peace. Notwithstanding he was thus put upon his good behavior, Moulin kept continually making his appearance and reiterating his demands at the steamship company's office. Forbes and Babcock repeatedly told him to go to a lawyer and commence suit for his claim; but Moulin refused to do so, saying that he could attend to his own business as well as, and he thought better than, any lawyer. At length, to get rid of further annoyance, they told him he had better go to New York and see Mr. Aspinwall, the owner of the vessel, about the matter; and, to enable him to do so, gave him a free ticket over the entire route from San Francisco to that city. Upon arriving in New York, Moulin presented himself to Mr. Aspinwall and asked that his claim should be allowed. Mr. Aspinwall said that he knew nothing about his claim and that he did not want to be bothered with it. Moulin still insisted, and Mr. Aspinwall told him to go away. Moulin thereupon became excited, said he was determined to be paid, and that he would not be put off. He thereupon commenced a regular system of annoyance. When Mr. Aspinwall started to go home from his office, Moulin walked by his side along the street. When Aspinwall got into an omnibus, Moulin got in also; when Aspinwall got out, Moulin got out too. On the following morning, when Aspinwall left his residence to go to his office, Moulin was on hand, and taking his place, marched along by his side as before. If Aspinwall hailed an omnibus and got in, Moulin got in at the same time. If Aspinwall got out and hailed a private carriage, Moulin got out and hailed another carriage, and ordered the driver to keep close to Mr. Aspinwall's carriage. In fact, wherever Aspinwall went Moulin went also, and it seemed as if nothing could tire him out or deter him from his purpose. At length Mr. Aspinwall, who had become nervous from the man's actions, exclaimed, "My God, this man is crazy; he will kill me;" and calling him into the office, asked him what he wanted in thus following and persecuting him. Moulin answered that he wanted pay for his onions and potatoes. Aspinwall replied, "But I don't know anything about your onions and potatoes; how should I? Go back to my agents in California, and they will do what is right. I will direct them to do so." "But," said Moulin, "I have no ticket to go to California;" and thereupon Aspinwall gave him a free ticket back to San Francisco. Moulin departed, and in due course of time again presented himself to Forbes and Babcock, in San Francisco. At the re-appearance of the man, they were more annoyed than ever; but finally managed to induce him to commence a suit in the United States District Court. When the case was called, by an understanding between his lawyer and the lawyer of the steamship company, judgment was allowed to be entered in Moulin's favor for four hundred and three dollars and a half, besides costs. The amount thus awarded greatly exceeded the actual value of the onions and potatoes appropriated. It was thought by the defendant that on the payment of so large a sum, the whole matter would be ended. But Moulin was very far from being satisfied. He insisted that the judgment ought to have been for three thousand and nine hundred dollars, besides interest, swelling the amount to over six thousand dollars, and applied to Judge Hoffman of the District Court to set it aside. But as the judgment had been rendered for the full value of the property taken, as admitted by his lawyer, the Judge declined to interfere. This was in 1861. In 1863 I received my appointment as Judge of the Supreme Court of the United States, and was assigned to the circuit embracing the district of California. Moulin then appealed to the Circuit Court from the judgment in his favor, and at the first term I held, a motion was made to dismiss the appeal. I decided that the appeal was taken too late, and dismissed it. Moulin immediately went to Mr. Gorham, the clerk of the court, for a copy of the papers, insisting that there was something wrong in the decision. Gorham asked him what he meant, and he replied that I had no right to send him out of court, and that there was something wrong in the matter, but he could not tell exactly what it was. At this insinuation, Gorham told him to leave the office, and in such a tone, that he thought proper to go at once and not stand upon the order of his going. The following year, after Mr. Delos Lake had been appointed United States District Attorney, Moulin went to his office to complain of Gorham and myself; but Lake, after listening to his story, told him to go away. Two or three years afterwards he again presented himself to Lake and demanded that Judge Hoffman, Gorham, and myself should be prosecuted. Lake drove him a second time from his office; and thereupon he went before the United States Grand Jury and complained of all four of us. As the grand jury, after listening to his story for a while, dismissed him in disgust, be presented himself before their successors at a subsequent term and complained of them. From the Federal Court he proceeded to the State tribunals; and first of all he went to the County Court of San Francisco with a large bundle of papers and detailed his grievances against the United States judges, clerks, district attorney and grand jury. Judge Stanley, who was then county judge, after listening to Moulin's story, told the bailiff to take possession of the papers, and when he had done so, directed him to put them into the stove, where they were soon burned to ashes. Moulin then complained of Stanley. At the same time, one of the city newspapers, the "Evening Bulletin," made some comments upon his ridiculous and absurd proceedings, and Moulin at once sued the editors. He also brought suit against the District Judge, District Attorney and his assistant, myself, the clerk of the court, the counsel against him in the suit with the steamship company and its agents, and numerous other parties who had been connected with his various legal movements. And whenever the United States Grand Jury met, he besieged it with narratives of his imaginary grievances; and, when they declined to listen to him, he complained of them. The courts soon became flooded with his voluminous and accumulated complaints against judges, clerks, attorneys, jurors, editors, and, in fact, everybody who had any connection with him, however remote, who refused to listen to them and accede to his demands. By this course Moulin attracted a good deal of attention, and an inquiry was suggested and made as to whether he was _compos mentis_. The parties who made the inquiry reported that he was not insane, but was actuated by a fiendish malignity, a love of notoriety and the expectation of extorting money by blackmail. For years--indeed until September, 1871--he continued to besiege and annoy the grand juries of the United States courts with his imaginary grievances, until he became an intolerable nuisance. His exemption from punishment had emboldened him to apply to the officers of the court--the judges, clerks, and jurors--the most offensive and insulting language. Papers filled with his billingsgate were scattered all through the rooms of the court, on the desks of the judges, and on the seats of jurors and spectators. It seemed impossible, under existing law, to punish him, for his case did not seem to fall within the class of contempts for which it provided. But in September of 1871 his insolence carried him beyond the limits of impunity. In that month he came to the United States Circuit Court, where Judge Sawyer (then United States Circuit Judge) and myself were sitting, and asked that the grand jury which was about to be discharged might be detained; as he proposed to have us indicted for corruption, and commenced reading a long string of vituperative and incoherent charges of criminal conduct. The proceeding was so outrageous that we could not overlook it. We accordingly adjudged him guilty of contempt, fined him five hundred dollars, and ordered him to be committed to prison until the fine should be paid. Whilst in prison, and not long after his commitment, he was informed that upon making a proper apology for his conduct, he would he discharged. Instead, however, of submitting to this course, he commenced writing abusive articles to the newspapers, and sending petitions to the Legislature charging us with arbitrary and criminal conduct. His articles were of such a character as to create quite erroneous impressions of our action. The newspapers, not waiting to ascertain the facts, at first took sides with him and assailed us. These attacks, of course, had no effect upon the man's case; but, after he had remained in prison for several weeks, on understanding that his health was infirm, and being satisfied that he had been sufficiently punished, we ordered his discharge. THE HASTINGS MALIGNITY. Whilst the Moulin matter was in progress, an individual by the name of William Hastings was practising before the United States Courts. He had been, as I am told, a sailor, and was then what is known as a "sailor's lawyer." He was a typical specimen of that species of the profession called, in police court parlance, "shysters." He was always commencing suits for sailors who had wrongs to redress, and particularly for steerage passengers who complained that they had not had sufficient accommodations and proper fare. He generally took their cases on speculation, and succeeded very often in forcing large sums from vessels libelled, as he was generally careful to bring his actions so as to arrest the vessels on the eve of their departure, when the payment of a few hundred dollars was a much cheaper mode of proceeding for the captains than detention even for a few days. But in one of his suits in the United States District Court, in the year 1869, brought for a steerage passenger against a vessel from Australia, the captain declined to be blackmailed and defended himself. When the matter came on for hearing, Hastings was found to have no cause of action, and the case was thereupon dismissed by Judge Hoffman. Hastings then appealed to the United States Circuit Court, and that court affirmed the judgment of the District Court. This happened as I was about leaving for Europe; and I left supposing that I had heard the last of the case. During my absence, Hastings moved Judge Hoffman, of the United States District Court, from whose decision the appeal had been taken, to vacate the decision of the United States Circuit Court. This, of course, Judge Hoffman refused. Hastings thereupon made a motion that my decision should be set aside, on the ground that it was rendered by fraud and corruption. When Judge Hoffman became aware of the charges thus made, he was indignant and immediately cited Hastings before him to show cause why he should not be disbarred and punished for contempt. Hastings refused to make any explanation or withdraw his offensive language; and thereupon Judge Hoffman expelled him from the bar and ordered his name to be stricken from the roll of attorneys. I was then absent in Europe, and knew nothing whatever of the proceedings. About this time Mr. George W. Julian, a member of Congress from Indiana, came to California and pretended to be a great friend of the settlers. He obtained the confidence of that large class of the community, and especially of those who were known as the Suscol claimants. These were the men who, upon the rejection by the United States Supreme Court of the so-called Suscol grant, in Napa and Solano Counties, rushed in and squatted upon the most valuable land in the State. The title to this land had previously been considered as good as any in California; it had been held valid by the local tribunals, and also by the Board of Land Commissioners and by the District Court of the United States. On the strength of these confirmations the land had been divided into farms, upon which, besides cultivated fields, there were numerous orchards, vineyards, gardens, and two cities, each of which had been the capital of the State. The farms and city lots had been sold, in good faith, to purchasers at full value. But when the question came before the United States Supreme Court, and it appeared that the grant had been made to General Vallejo, in consideration of military services, and for moneys advanced to the Mexican government, and not for colonization purposes, it was held that there was no authority under the Mexican laws for such a disposition of the public domain, and that the grant was, therefore, invalid. At the same time Judge Grier filed a dissenting opinion, in which he expressed a hope that Congress would not allow those who had purchased in good faith from Vallejo, and expended their money in improving the land, to be deprived of it. Congress at once acted upon the suggestion thus made and passed an act allowing the grantees of Vallejo to purchase the lands occupied by them at a specified sum per acre. Mr. John B. Frisbie, Vallejo's son-in-law, who had bought and sold large quantities, took immediate steps to secure himself and his grantees by purchasing the lands and obtaining patents for them. In the meanwhile the squatters had located themselves all over the property; most of them placing small shanties on the land in the night-time, near the houses, gardens, and vineyards, and on cultivated fields of the Vallejo grantees. They then filed claims in the Land Office as pre-emptioners, under the general land laws of the United States, and insisted that, as their settlements were previous to the act of Congress, their rights to the land were secure. In this view Julian, when he came to California, encouraged them, and, as was generally reported and believed, in consideration of a portion of the land to be given to him in case of success, undertook to defend their possessions.[1] When Frisbie applied, under the provisions of the act of Congress, for a patent to the land, a man named Whitney, one of the squatters, protested against its issue, on the ground that under the pre-emption laws he, Whitney, having settled upon the land, had acquired a vested right, of which Congress could not deprive him. But the Land Department took a different view of the matter and issued the patent to Frisbie. Whitney thereupon commenced a suit against Frisbie in the Supreme Court of the District of Columbia to have him declared a trustee of the land thus patented, and to compel him, as such trustee, to execute a conveyance to the complainant. The Supreme Court of the District of Columbia decided the case in favor of Whitney, and ordered Frisbie to execute a conveyance; but on appeal to the Supreme Court the decision was reversed; and it was held that a pre-emptioner did not acquire any vested right as against the United States by making his settlement, nor until he had complied with all the requirements of the law, including the payment of the purchase-money; and that until then Congress could reserve the land from settlement, appropriate it to the uses of the government, or make any other disposition thereof which it pleased. The court, therefore, adjudged that the Suscol act was valid, that the purchasers from Vallejo had the first right of entry, and that Frisbie was accordingly the owner of the land purchased by him. Soon after the decision was rendered Julian rose in his seat in the House of Representatives and denounced it as a second Dred Scott decision, and applied to the members of the court remarks that were anything but complimentary. It so happened that previous to this decision a similar suit had been decided in favor of Frisbie by the Supreme Court of California, in which a very able and elaborate opinion was rendered by the Chief Justice. I did not see the opinion until long after it was delivered, and had nothing whatever to do with it; but in some way or other, utterly inexplicable to me, it was rumored that I had been consulted by the Chief Justice with respect to that case, and that the decision had been made through my instrumentality. With this absurd rumor Hastings, after he had been disbarred by Judge Hoffman, went on to Washington. There he joined Julian; and after concocting a long series of charges against Judge Hoffman and myself, he placed them in Julian's hands, who took charge of them with alacrity. The two worthies were now to have their vengeance--Hastings for his supposed personal grievances and Julian for the Suscol decision which injured his pocket. These charges on being signed by Hastings were presented to Congress by Julian; and at his request they were referred to the Judiciary Committee. That committee investigated them, considered the whole affair a farce, and paid no further attention to it. But the next year Mr. Holman, of Indiana, who succeeded Julian, the latter having failed of a re-election, re-introduced Hastings' memorial at Julian's request and had it referred to the Judiciary Committee, with express instructions to report upon it. Hastings appeared for the second time before that committee and presented a long array of denunciatory statements, in which Judge Hoffman, myself, and others were charged with all sorts of misdemeanors. The committee permitted him to go to any length he pleased, untrammelled by any rules of evidence; and he availed himself of the license to the fullest extent. There was hardly an angry word that had been spoken by a disappointed or malicious litigant against whom we had ever decided, that Hastings did not rake up and reproduce; and there was hardly an epithet or a term of villification which he did not in some manner or other manage to lug into his wholesale charges. As a specimen of his incoherent and wild ravings, he charged that "the affairs of the federal courts for the District of California were managed principally in the interests of foreign capitalists and their co-conspirators, and that the judges thereof appeared to be under the control of said foreign capitalists, and that the said courts and the process thereof were being used or abused to deprive the government of the United States and the citizens thereof of the property that legally and equitably belonged to them respectively, and to transfer the same, in violation of law and through a perversion of public justice, to said foreign capitalists and their confederates and co-conspirators, and that nearly the whole of the sovereign powers of the State were under the control and management of said foreign capitalists and their confederates and co-conspirators;" and he alleged that he "was aware of the existence in the United States of a well-organized, oath-bound band of confederated public officials who are in league with the subjects of foreign powers, and who conspire against the peace, prosperity, and best interests of the United States, and who prey upon and plunder the government of the United States and the city and county governments thereof, and also upon private citizens, and who now are carrying into practice gigantic schemes of plunder through fraud, usurpation, and other villainy, in order to enrich themselves, bankrupt the nation, and destroy our government, and that their power is so great that they can and do obstruct the administration of public justice, corrupt its fountains, and paralyze to some extent the sovereign powers of the government of the United States and the people thereof." The Judiciary Committee after having patiently listened to this rigmarole, absurd and ludicrous as it was, unanimously reported that Hastings' memorial should be laid upon the table and the committee discharged from any further consideration of the subject. The House adopted the report, and, so far as Congress was concerned, there the matter dropped. But in the meanwhile it had been telegraphed all over the country that articles of impeachment were pending against the judges, and sensational newspaper articles appeared in different parts of the country. Some expressed regret that the conduct of the judges had been of a character to necessitate such proceedings. Others said it was not to be wondered at that the judicial ermine should be soiled in a country of such loose morals as California. Still others thought it no more than proper to impeach a few of the judges, in order to teach the remainder of them a salutary lesson. These articles were paraded in large type and with the most sensational headings. When the action of the House on the memorial was announced, Hastings and Julian became furious. It then appeared that the only charge which had made any impression upon the minds of the committee was that relating to Moulin, the Frenchman. Three, indeed, of the members, (Messrs. Voorhees, of Indiana, Potter, of New York, and Peters, of Maine,) said it was a shame and disgrace that such ridiculous and monstrous twaddle should be listened to for a moment; but a majority considered it their duty, under the order of reference, to hear the matter patiently. They had, therefore, allowed Hastings the widest latitude and listened to everything that his malice could invent. As a comical conclusion to these extraordinary proceedings, Hastings commenced a suit in the U.S. Circuit Court for the State of New York against the Judiciary Committee for dismissing his memorial. Being a non-resident he was required by that court to give security for costs, and as that was not given the action was dismissed. This result was so distasteful to him that he presented a petition to the Chief Justice of the U.S. Supreme Court, stating that Judge Hunt had too much to do with churches, banks, and rings, and asking that some other judge might be appointed to hold the court. The petition was regarded as unique in its character, and caused a great deal of merriment. But the Chief Justice sent it back, with an answer that he had no jurisdiction of the matter. After this Hastings took up his residence in New York, and at different times worried the judges there by suits against them--Judge Blatchford, among others--generally charging in his peculiar way a conspiracy between them and others to injure him and the rest of mankind. * * * * * The above was written upon my dictation in the summer of 1877. In November of that year Hastings again appeared at Washington and applied to a Senator to move his admission to the Supreme Court. The Senator inquired if he was acquainted with any of the Judges, and was informed in reply of that gentleman's proceedings against myself; whereupon the Senator declined to make the motion. Hastings then presented to the House of Representatives a petition to be relieved from his allegiance as a citizen of the United States. As illustrative of the demented character of the man's brain, some portions of the petition are given. After setting forth his admission to the Supreme Court of California as an attorney and counsellor-at-law, and his taking the oath then required, he proceeded to state that on the 6th of November, 1877, he entered the chamber of the Supreme Court of the United States to apply for admission as an attorney and counsellor of that court; that he was introduced by a friend to a Senator, with a request that the Senator would move his admission; that the Senator asked him if he knew a certain Justice of the Supreme Court, and upon being informed that he did, and that his relations with said Justice were not friendly, as he had endeavored to get him impeached, and that the damaging evidence he produced against such Justice had been secreted and covered up by the Judiciary Committee of the House, whom he had accordingly sued, the petition continued as follows: "Whereupon said Senator replied, I have a cause to argue as counsel before this court this morning, and I would, therefore, prefer not to move your admission. Said Senator then and there arose and took his seat in front of the bench of said court; and your petitioner remained in said U.S. Supreme Court until one application for admission was made and granted on motion of one S.P. Nash, of Tweed-Sweeney Ring settlement fame [thereby demonstrating poetic injustice], and until the Chief Justice of the United States--shadow not shade of Selden--called the first case on the docket for that day, and a moment or two after the argument of said cause commenced, your petitioner arose and left the court-room of said United States Supreme Court, (to which the genius of a Marshall and a Story has bid a long farewell,) and as your petitioner journeyed towards his hotel, your petitioner soliloquized thus: 'Senator W---- is evidently afraid of Justice ----, with whom I have had a difficulty, and he possesses neither the manly independence of a freeman, nor moral nor physical courage, and he is, therefore, an improper person (possibly infamous) for such a high and responsible position, and my rights as a citizen are not safe in the keeping of such a poltroon and conniving attorney, and he is probably disqualified to hold the high and responsible office of Senator of the United States--that he improperly accepts fees from clients, possibly in part for the influence which his exalted position as Senator gives him as counsel for parties having cases before the U.S. Supreme Court, and which practice is wholly inconsistent with the faithful, impartial performance of his sworn duty as such Senator; and by thus accepting fees he has placed himself in a position where his personal interests conflict with the obligations of his oath of office; while the Justices of the Supreme Court are, I conceive, derelict in the performance of their sworn duty, for permitting such practices to be inaugurated and continued.' "Cowardice taints the character with moral turpitude; and I believe the facts related above show that said Senator is a coward; at all events he lacks moral courage, and is afraid of the Justices of the United States Supreme Court, whose judge the Senator-attorney of the court becomes in case of trial of any of said Justices by impeachment; surely this is one unclean body incestuously holding illicit commerce with another unclean body, and both become interchangeably soiled, and too impure to touch the spotless robes of the judicial ermine; still, as this government has ceased to be a government of law and justice, and has become a foul and unclean machine of corrupt compromises, carried on by colluding and conniving shyster bartering attorneys, the practice of said Supreme Court of the United States, above referred to, is strictly in accord therewith." The petition continued in a similar strain, and wound up by asking the passage of a concurrent resolution of the Houses releasing him from his allegiance to the United States! [1] See Exhibit L, in Appendix. APPENDIX. EXHIBIT A. [From the New York _Evening Post_ of November 13th, 1849.] Among the passengers leaving in the Crescent City to-day is Stephen J. Field, Esq., of this city, brother and late law-partner of D.D. Field, Esq., one of the Commissioners of the Code of Practice. Mr. Field is on his way to San Francisco, where he proposes to practise his profession, and take up his future residence. If he should realize either the hopes or the expectations of the numerous friends he leaves behind, he will achieve an early and desirable distinction in the promising land of his adoption. * * * * * EXHIBIT B. Mr. William H. Parks, of Marysville, has always asserted that my election as Alcalde was owing to a wager for a dinner made by him with a friend. He was at the time engaged in transporting goods to the mines from the landing at Nye's Ranch on the Yuba River, called Yubaville, and arriving at the latter place whilst the election was going on he made the wager that I would be elected, and voted all his teamsters, numbering eleven, for me. As I had a majority of only nine, he claims that he had the honor of giving me my first office. The claim must be allowed, unless the person with whom he wagered offset this number, or at least some of the teamsters, by votes for my opponent. After the election Mr. Parks introduced himself to me, and from that time to this he has been a warm and steadfast friend. He afterwards settled in Sutter County, but now resides in Marysville. He has amassed a handsome fortune, and takes an interest in all public affairs. He has represented his county as a Senator in the Legislature of the State. He is a gentleman of high character and has the confidence and respect of the community. My opponent for the office of Alcalde was Mr. C.B. Dodson, from Illinois. I afterwards met him only once or twice in California, and knew little of his history. But when I was a member of the Electoral Commission, in February of this year (1877), a copy of a paper published in Geneva, Illinois--the _Republican_, of the 10th of that month--was sent to me, containing the following account of him, from which it appears that he, too, has lived a life of strange vicissitudes and stirring adventure: REMINISCENCES. An account of the various positions of the selected arbitrators says that in 1850 Judge Field was elected Alcalde and Recorder of Marysville, California. Judge Field's competitor for the position was our townsman, Capt. C.B. Dodson, who was defeated by nine votes. As there is no doubt that had the Captain gained the position of Alcalde he would have risen as his competitor did, to various judicial positions, and finally to the arbitrator's seat, these nine votes must be considered as the only reasons why Geneva does not number one of her citizens among the arbitrators for the highest of the world's official positions. Among the votes polled for our friend Dodson on that occasion was that of Macaulay, one of the family of the famous historian of England's greatest days and proudest times. The Captain has been a natural and inveterate pioneer, and few citizens of the State have figured more prominently or proudly in its early annals. In 1834, forty-three years ago, Mr. Dodson came to dispute with the aboriginal Pottawatomies the possession of the Fox River valley. White faces were rare in those days, and scarcely a squatter's cabin rose among the Indian lodges. The Captain built the first saw-mill on the river, and he and Col. Lyon were the hardy spirits about whom the early settlers clustered for encouragement and advice. In 1837 he was employed by the government to superintend the removal of the Indians to Council Bluffs and Kansas, and their successful emigration, as well as their uniform good will toward the whites prior to their removal, were largely due to his sagacity and influence among them. When Capt. Sutter first found the yellow gold gleaming in the dirt of his mill-race, and all the world joined in a mad rush to the mines, the venturesome spirit of Capt. Dodson led him to press forward with the first, and he was a "forty-niner," that pride of the old Californians. In that surging crowd of wild adventurers from the ends of the earth, the Captain was, as he has been among the early pioneers of Illinois, a directing and controlling spirit. Though he failed in his judicial aspirations for Alcalde, and Judge Field succeeded, yet his continued exertions and marked influence caused him to leave a name richly associated with all the early history of Marysville and vicinity. When the war broke out, Mr. Dodson was among the very first to proffer his services, and he raised the first company of cavalry which went to the front from Kane County. The Captain is not an old man yet in health and vigor, although an "old settler" in varied and numerous experiences. His name is marked in unmistakable characters on every prominent event of the early settlement of Northern Illinois, and blended and associated with all the pioneer way-marks of California. A friend and companion of all the great Illinoians of the generation which is now passing into old age, he has not yet ceased to be a spirit actively mingling in all the affairs of the present times. But we only started to tell of his contest with Field, not to write an eulogium on the Captain, for here where he is known it is better pronounced in his record, which lies in the memories of his friends. * * * * * EXHIBIT C. _Oath of Office as Alcalde._ STATE OF CALIFORNIA, } SACRAMENTO DISTRICT. } _ss._ SACRAMENTO CITY, _January 22d, 1850_. Personally appeared before me Stephen J. Field, First Alcalde of Yubaville, in the District of Sacramento, and made oath that he would discharge the duties of the office of First Alcalde as aforesaid with faithfulness and fidelity to the best of his ability, and that he would support the Constitution of the United States and the constitution of the State of California. R.A. WILSON, _Judge of 1st Instance, Sacramento District._ * * * * * EXHIBIT D. The following are the orders of the District Court mentioned in the Narrative. _Order imprisoning and fining Mr. Field for alleged contempt of court._ DISTRICT COURT, } EIGHTH JUDICIAL DISTRICT, } COUNTY OF YUBA. } At a term of said District Court held at Marysville, county of Yuba, on the 7th of June, 1850, present, Hon. Wm. B. Turner, Judge, the following proceeding was had: _Ordered_. That Stephen J. Field be imprisoned forty-eight hours and fined five hundred dollars for contempt of court. * * * * * _Order expelling Messrs. Field, Goodwin, and Mulford from the bar._ DISTRICT COURT, } EIGHTH JUDICIAL DISTRICT, } COUNTY OF YUBA. } At a term of said court held at Marysville, on the 10th of June, 1850, present, Hon. William R. Turner, Judge, the following proceeding was had: Whereas, Messrs. Field, Goodwin, and Mulford, having set at defiance the authority of this court, and having vilified the court and denounced its proceedings, the said Field, Goodwin, and Mulford are hereby, by order of the court, expelled from the bar of the same. * * * * * _Order imprisoning and fining Judge Haun for releasing Mr. Field from imprisonment upon a writ of habeas corpus, and directing that the order to imprison Mr. Field be enforced._ DISTRICT COURT, } EIGHTH JUDICIAL DISTRICT, } COUNTY OF YUBA. } At a term of said District Court held at Marysville, county of Yuba, on the 10th of June, 1850, present, Hon. Wm. B. Turner, Judge, the following proceeding was had: Whereas, Judge Haun having, in defiance of the authority of this court, and in violation of the law, obstructed and prevented the execution of an order of this court to imprison Mr. Field for a contempt offered to the court while in session, by releasing the said Field from the custody of the sheriff; the said Haun is hereby sentenced to forty-eight hours' imprisonment and to pay a fine of fifty dollars. The sheriff will enforce the order of the court to imprison Mr. Field for forty-eight hours. * * * * * EXHIBIT E. _Record of Proceedings in the Court of Sessions, mentioned in the Narrative._ Court of Sessions of Yuba County. Met at Marysville, June 10th, A.D. 1850, at 10 o'clock A.M., and was duly opened by R.B. Buchanan, sheriff of the county. Present, Hon. H.P. Haun, County Judge, F.W. Barnard, Associate Justice. IN THE MATTER OF } STEPHEN J. FIELD } Application for Habeas Corpus. On the reading of the petition of the applicant, duly authenticated by his oath, it is ordered that the prayer of the petitioner be granted, and that R.B. Buchanan, sheriff of Yuba County, or any person acting under him and having said Field in custody, bring the said Field into court forthwith, to be dealt with according to law. In pursuance of the above order, the said Field came into court, and proceeded to address the court on the matter touching the cause of his confinement, and while making his remarks, and previous to the close thereof, and while the court was in session, R.B. Buchanan, sheriff of Yuba County, at the head of fifty men, entered the court, and stated that he came there for the purpose and with the intent to seize H.P. Haun, County Judge as aforesaid, and place him in close confinement, under and by virtue of a certain order or decree made by one William R. Turner, Judge of the Eighth Judicial District of the State of California. The court informed the said Sheriff Buchanan that it was holding its regular term, and that order must be preserved while it was in session. The said Sheriff Buchanan then left the court, whereupon the business before the court was again resumed. At the expiration of some five minutes, the said R.B. Buchanan, as aforesaid, re-entered the court, and stated that the said H.P. Haun, County Judge as aforesaid, must leave the court and go with him, as he was peremptorily ordered by William R. Turner, the Judge as aforesaid, to arrest the said H.P. Haun and keep him in close confinement for the space of forty-eight hours. R.B. Buchanan was here notified that he was violating the laws of the land, and that he would be fined if he persisted in disturbing the session of the court. The reply of said Buchanan was "that he could not be trifled with," and immediately seized the said H.P. Haun, County Judge as aforesaid, by the arm, and attempted to drag him from the room where the court was in session. Whereupon a fine of two hundred dollars was then and there imposed upon the said R.B. Buchanan for a contempt of court. The said R.B. Buchanan then and there called upon the fifty persons ordered out by him as his posse to take hold of the said H.P. Haun, and take him from the court. But the persons in attendance, conceiving the order to arrest the Hon. H.P. Haun to be illegal and unjustifiable, refused to assist the sheriff in the execution of his illegal order. The sheriff then retired, and the court was then adjourned to 3 o'clock P.M. Court met pursuant to adjournment. Court adjourned to to-morrow morning at 9 o'clock. I hereby certify the above to be a true transcript of the record of the proceedings of the Court of Sessions on the 10th day of June, A.D. 1850. Witness E.D. Wheeler, clerk of the Court of Sessions of Yuba County, California, with the seal of the court affixed, this 26th day of December, A.D. 1850. [L.S.] E.D. WHEELER, _Clerk_. * * * * * The records of the District Court show the following entry made the same day, June 10, 1850: "A communication was received from H.P. Haun, stating 'that if he was guilty of obstructing the order of the court in releasing Field, he did it ignorantly, not intending any contempt by so doing.' Whereupon the court ordered that H.P. Haun be released from confinement, and his fine be remitted." The following is taken from the deposition of Mr. Wheeler, the clerk of the court, before the committee of the Assembly to whom was referred the petition of citizens of Yuba County for the impeachment of Judge Turner: MARCH 26th, 1851. E.D. Wheeler,[1] being duly sworn, says: I reside in Marysville, Yuba County; I am the county clerk of that county; I know Wm. R. Turner, judge of the Eighth Judicial District; I am clerk of his court in and for Yuba County. Question. Were you in court on the 7th day of June last, when Stephen J. Field was fined by Judge Turner and ordered to be imprisoned? If so, please to state what took place at that time in court. Ans. I was in court on the 7th day of June last. A motion was made in a suit (Cameron against Sutter) in which Stephen J. Field was counsel for the defendant, upon which motion a discussion arose among the members of the bar employed in the case. During the remarks of Mr. Field, Judge Turner said that it was useless to say more, as the mind of the court was made up. I think Mr. Field then offered to read from the Statutes, whereupon Judge Turner ordered him to take his seat, and that a fine of two hundred dollars be entered up against him, and that he be imprisoned eight hours or thereabout. Mr. Field replied, "Very well." Then Judge Turner said, fine him three hundred dollars and imprison him--I do not remember the precise time--but think it was twenty-four hours. Mr. Field made some quiet reply--I think it was "Very well;" whereupon the fine was increased to four hundred dollars and the imprisonment made something longer. I think Mr. Field said something about his rights at the bar, and I think he appealed to the members of the bar. Then Judge Turner became quite furious, and in loud and boisterous language ordered the fine to be five hundred dollars and the imprisonment to be forty-eight hours, and ordered the sheriff to take him out of court. He was boisterous, and several times ordered the sheriff to take him out; to summon a posse; to summon the court, and he would turn him out. Q. Did you see anything disrespectful in the manner, or hear anything disrespectful in the language of Mr. Field which occasioned the fine and imprisonment? Ans. I did not. Q. Did Mr. Field, in consequence of the order of Judge Turner, leave the court-room in company with the deputy sheriff? Ans. He left in company with the deputy sheriff, and I suppose it was in consequence of the order of Judge Turner. Q. Was the trial of Cameron against Sutter proceeded with after Mr. Field left? Ans. It was. Q. Who took the place of Mr. Field after he left? Ans. John V. Berry, Esq. Q. Were you in court on the 10th day of June? Ans. I was. Q. Were any members of the bar expelled by Judge Turner on that day? And if so, please state who they were and whether they were in court at the time, and whether or not the order was made upon a hearing of the parties. Ans. There were three persons expelled, to wit: S.J. Field, S.B. Mulford, and J.O. Goodwin. I do not recollect whether the parties were all in court at the time. I am sure that Mr. Goodwin was in court. There was no hearing had to my knowledge. Q. After the order imprisoning Mr. Field, on the 7th of June and before the 10th, were any steps taken by Mr. Field to be discharged on a writ of habeas corpus? Ans. There were, and Mr. Field was discharged by the Judge of the County of Yuba. Q. What was done by Judge Turner with Judge Haun, the County Judge, in consequence of his discharging Mr. Field from imprisonment on the writ of habeas corpus? Ans. Judge Haun was fined fifty dollars by Judge Turner and ordered to be imprisoned forty-eight hours. This was on the 10th of June, at the same time that the other gentlemen were expelled from the bar. Q. Did the Court of Sessions of Yuba County hold a session on that day? Ans. Yes. Q. Did you continue in the District Court or did you go to the Court of Sessions? Ans. I continued in the District Court. Q. Who made up the records of the Court of Sessions on that day? Ans. F.W. Barnard, one of the associate justices of the court. Q. Look at this paper and state whether it is a copy of the proceedings of that court on the 10th of June, certified by you as the clerk. Ans. It is.[2] Q. Whilst you were in the District Court on that day did the sheriff of Yuba County give any information to the District Court about the Court of Sessions being in session? Ans. He did. Q. Did Judge Turner give any directions to the sheriff to arrest Judge Haun, notwithstanding he was holding his court? Ans. He did, and told the sheriff to put him in irons, if necessary to handcuff him. Q. Were any directions given about a posse? Ans. There were. He told the sheriff to summon a posse forthwith and enforce the orders of the court. He addressed two or three professional gamblers present and asked them if they would not join the posse to arrest Judge Haun. Then the excitement became so great that several of the members of the bar requested him to adjourn the court; but before the court adjourned the Judge asked several of the members of the bar to join the posse; but they made excuses, whereupon the court adjourned. Q. Was the order entered on the records of the District Court, expelling Messrs. Field, Goodwin, and Mulford? Ans. It was. Q. What day was that order entered? Ans. On the 10th day of June. Q. Has that order ever been vacated on the records of the District Court? Ans. So far as it relates to Mr. Goodwin it has been vacated, but no further. Q. Has Mr. Field or Mr. Mulford ever been restored to the bar by the District Court since the order of expulsion on the 10th of June? Ans. No. [1] Mr. Wheeler is at present (1877) District Judge of the Nineteenth District of the State. [2] The record of the proceedings is printed above. * * * * * EXHIBIT F. The following is the petition to the Governor mentioned in the Narrative. Of course the Governor possessed no power to suspend a judicial officer from office. But at the time the petition was signed and sent to him the State had not been admitted into the Union, and Congress had not approved of the action of the people in calling a convention and framing a constitution; and it appeared very doubtful whether such approval would be given. There was a general impression that in the meantime the Governor could exercise the power to remove and suspend officers of the State which the former governors under Mexico possessed, or were supposed to possess. The petition, however, is none the less significant, as the expression of the opinions of the people of Marysville upon the conduct of Judge Turner. _To His Excellency Peter H. Burnett, Governor of California._ The undersigned citizens of Marysville, Yuba County, in this State, respectfully request that Your Excellency would suspend William R. Turner, District Judge of the Eighth Judicial District of this State, from his judicial office. 1st. Because the said William R. Turner is grossly incompetent to discharge the duties of a judge, he having exhibited during his judicial career, and particularly during the session of the District Court held at Marysville, in Yuba County, during the present month, ignorance of the most elementary principles of law,--such as to excite the derision of counsel, jurors, witnesses, and persons in attendance upon the court. 2d. Because the said William R. Turner has, during the session of the District Court held at Marysville, exercised the power vested in him as judge, in an arbitrary and tyrannical manner, outraging the rights of counsel, clients, and witnesses. 3d. Because the said William R. Turner has refused to hear counsel on questions of vital importance to the suits of their clients, and in one instance fined and imprisoned counsel for stating in the most respectful manner and in the most respectful language, that he appealed from an order made by him, though such is an acknowledged right of all counsel, and a right given by statute--under pretence that counsel by so doing was guilty of a contempt. 4th. Because the said Wm. R. Turner has trampled upon and spurned with contempt the privilege of the writ of habeas corpus which is guaranteed to all citizens by the Constitution of the United States and by the constitution of the State of California, and fined and imprisoned the Hon. Henry P. Haun, Judge of Yuba County, for the exercise by him of a judicial act in discharging a gentleman from arrest under a writ of habeas corpus. 5th. Because the said William R. Turner, to carry out his arbitrary order to fine and imprison the Hon. Henry P. Haun, Judge of Yuba County, for the exercise of a judicial act, ordered the sheriff of said county with a posse to invade the Court of Sessions of Yuba County while the said court was sitting, and over which the said Haun presided, and to carry off by force the said county judge and put him in close custody. 6th. Because the said William R. Turner ordered the sheriff of Yuba County, with a posse, to force Mr. S.J. Field from the Court of Sessions of said county whilst said Field was before said court on a writ of habeas corpus arguing for his discharge, and the said William R. Turner was informed that the Court of Sessions forbid the sheriff from disturbing the proceedings of the court on the hearing of said writ. 7th. Because the said William R. Turner has, in the exercise of arbitrary power, expelled counsel from the bar for giving their testimony as witnesses on the return of a writ of habeas corpus before the Hon. Henry P. Haun, Judge of the County Court, under pretence that by so doing they were vilifying the court and denouncing its proceedings. 8th. Because the said William R. Turner, during the session of the District Court at Marysville, Yuba County, in the present month, frequently went into Court with revolving pistols upon his person, to the great scandal of the court and of the county. For the above, and other reasons, your petitioners respectfully request that the said William R. Turner may be suspended from his office, as the further exercise by him of judicial power will destroy all confidence of the community in the administration of justice, and all respect for the tribunals of the country; and your petitioners will ever pray. Marysville, June 19th, 1850. Stephen J. Field, Ira A. Eaton, James S. Green, T.B. Parker, E.W. Judkins, Harrington Osgood, Chas. W. Gleason, Geo. W. Hastat, S. Sartwell, jr., M.S. Ebright, S.C. Stambaugh, P. Steinman, Henry Cuttcher, M. Cunningham, Ed. B. Jefferds, Wm. H. Mitchell, Benj. Barker, H. Cecil & Co., Osbourn & Co., Asa Stearns, John Bennett, jr., J.P.F. Haskell, W.A. Crampton, J.C. Jewett, H. Stenhome, John Parks, Absalom Parks, David Parks, James Imbrie, Alfred Parry, H.C. Ward, Richard McRae, Wm. Johnson, F. Prunean, H.W. Taylor, R.A. Eddy, S.T. Brewster, C. Sala, Dericerpre, M. Donaldson Kinney, R.M. Foltz., Jas. F. Hibbard, Thomas Gaffney, Allen Gries, W.H. Swain, Oben Lacey, E.S. Peck, B. Smith, John Graham, Wm. Kyle, S.C. Tompkins, A.C. Ladd, C.B. Kinnard, Cyrus Crouch, H.H. Welch, Jas. Stuart, Jas. DeBell, Uriah Davis, L.H. Babb & Co., I.B. Purdy, G. Dimon, Henry J. Williams, D.W.C. Rice, N. Purdy, William K. Coit, James B. Cushing, Thomas West, S.B. Mulford, J. Ford, Wm. Ford, Charles A. Van Dorn, Gustavus B. Wright, J. Burlingame, G. Beaulamy, A. Mace, F. Frossard, C.W. Durkee, John S. Ryder, Geo. H. Childs, Ezra F. Nye, S.T. Nye, Geo. W. Durkee, John C. Marks, John L. Carpenter, Leonard Crofford, Robert Lacy, French Paige, L.A. Allen, James Hughes, J.C. Sargent, Wm. P. Hoyt, F.L. Reed, J.S. Bell, Henry B. Compton, G.F. Kussel, Reuben Scott, Warren Drury, Joel F. Whitney, O.C. Gardner, B.F. Taber, Johnson Thompson, jr., Ganahl & Co., T.W. Hall, J. Donnel, Wm. Irwin, Wm. W. Nelson, R.H. McCall, B.G. Bixby, Geo. L. Boswell, Wm. W. Tinker, Robert S. Baker, N.F. Cooke, Edwards Woodruff, J.N. Briceland, Joseph F. Emeric, John F. Delong, James Q. Packard, Sibley & Co., Boone, Larrow & Co., P.W. Hayes & Co., Geo. C. Gorham, R. Dunlap, M. Cameron, R. Brown, A.W. Loynes, F. Owradon, J.W. Turner, P.D. Bailey, James L. Springer, Matthew S. Smith, Wm. Fulton, John George Smith, Isaiah Porter, Wm. R. Taylor, John McClellan, R.H. Macy, Charles B. Mitchell, Thomas R. Anthony, Geo. W. Webster, Daniel M. Shepherd, M.J. Eavyerberth, Lewis A. Gosey, John Rueyer, Tehan Van De Wett, Wm. Cassede, G.P. Russell, S.G. Haywood, G.W. Hopkins, Wm. E. Wightman, E. Ferris, Samuel R. St. John, A.O. Garrett, D.C. Benham. * * * * * EXHIBIT G. _Letter of Mr. Eaton, by whom the message mentioned in the Narrative was sent to Judge Turner._ WEDNESDAY AFTERNOON, _Aug. 7, '50_. DEAR JUDGE: I have given your message to Turner. He does not like it much and flared up considerably when I told him. But it was no use. I have made him understand that you do not want any personal difficulty with him, but that you are ready for him, and if he attacks you he will get badly hurt. I will see you soon and explain. Give him ----. You can always count on me. Yours truly, IRA A. EATON. The Narrative of Reminiscences was sent to a friend in San Francisco, soon after it was printed, and was shown to Gen. A.M. Winn of that city. He was in Marysville in 1850 and also gave Judge Turner to understand the line of conduct I intended to pursue. The following letter has since been received from him. SAN FRANCISCO, _May 10th '80_. FRIEND FIELD: In looking over the Early Reminiscences of California I was pleased with the faithful recital of your trouble with Judge Turner at Marysville in 1850. Being there about that time I recollect to have met with Judge Turner and found him in a fighting rage, making threats of what he would do on meeting you. Although I have not an exalted opinion of men's courage, when they talk so much about it, I thought he might put his threats into execution and warned you of approaching danger. The course you pursued was generally approved, and public opinion culminated in your favor. You made many warm friends, though Turner and his friends were the more enraged in consequence of that fact. With great respect, I am, as ever, your friend, A.M. WINN. Hon. STEPHEN J. FIELD, _Washington, D.C._ * * * * * EXHIBIT H, No. I.[1] After the Narrative of Reminiscences was written, the Proceedings of the Assembly of California of 1851, on the petition of citizens of Yuba and Nevada Counties for the impeachment of Judge Turner, were published. Annexed to them was a statement by the editor of the causes of the indefinite postponement of the matter. They are there stated to be: 1st, That it was supposed that I had acquiesced in such a disposition of the case, because by the act concerning the courts of justice and judicial officers, Turner had been sent to the northern portion of the State, where he could do no harm; 2d, That the legislature did not wish to extend the session for the period which the trial of an impeachment would require; and, 3d, That the whole matter had become extremely distasteful to me. A copy of this statement with the record of the proceedings was sent to the surviving members of the seven, mentioned in the Narrative, who voted for the indefinite postponement of the matter; and they wrote the replies which are given below as part of this exhibit. They are preceded by a letter from a member, written soon after the vote was taken. * * * * * _Letter of Mr. Bennett._ HOUSE OF ASSEMBLY, SAN JOSE, _April 23d, 1851_. HON. STEPHEN J. FIELD. DR. SIR: I take pleasure in adopting this form to explain to you my vote upon the question put to the House in the final disposition of the case for the impeachment of Judge Turner. Had the House been called for a direct vote upon the question of impeachment, I should certainly have voted for the impeachment; but finding that some of the members thought the wishes of the citizens of Yuba County had been accomplished by the removal of Judge Turner from your district, and on that account would vote against the impeachment, I thought there was less injustice in postponing the whole matter indefinitely, than in coming to a direct vote. I will also say that it was understood by many members that you would be satisfied with such a disposition. I am very truly your friend, F.C. BENNETT. TO THE HON. STEPHEN J. FIELD, _SAN JOSE_. * * * * * _Letter of Mr. Merritt._ SALT LAKE CITY, UTAH, _May 4th, 1879_. MY DEAR JUDGE: Your letter of the 27th of April reached me day before yesterday, and the copy of the proceedings in the matter of the impeachment of W.R. Turner, on yesterday. The editorial comments on the case, so far as I am concerned, are exactly correct. I remember distinctly having voted for the indefinite postponement of the charges against Turner on the distinct understanding that you consented to it, or at least acquiesced, for the reasons: 1st, That Turner, by the passage of the bill concerning courts of justice, etc., had been sent to a district where he could do no harm and was out of the way; 2d, That you did not desire to extend the session of the Legislature; and, 3d, That the whole matter was extremely distasteful and disagreeable to you. I remember further very distinctly, even after this great lapse of time, that I was very much astonished when you told me that I had voted under a misapprehension as to your views and wishes. It is very certain that Turner would have been impeached had not a false report, as to your views and wishes on the subject, been industriously circulated among the members of the Assembly a short time before the vote was taken. That report alone saved Turner from impeachment. Very truly your friend, SAML. A. MERRITT. HON. S.J. FIELD, _Sup. Ct. U.S._ * * * * * _Letter of Mr. McCorkle._ WASHINGTON, CITY, D.C., _May 8th, 1879_. HON. S.J. FIELD. MY DEAR SIR: I have received your note and the printed record of the "Proceedings of the Assembly of the State of California of 1851, on the petition of the citizens of Yuba and Nevada Counties for the impeachment of Wm. R. Turner, Judge of the Eighth Judicial District of California." The simple reading of the record recalls vividly to my mind all of the circumstances of the case and enables me to answer your inquiry in regard to the indefinite postponement of the motion to impeach Judge Turner. A bill introduced by yourself, increasing and changing the numbers of the judicial districts of the State, had passed the Legislature, and became a law some weeks before the motion to impeach Judge Turner was called up. By this law Judge Turner was banished to the Klamath--a region inhabited almost exclusively by savage red-skins, the elk, and grizzly bear, and as Turner was supposed by anthropologists to be a resultant of that mysterious law of generation denominated atavism or reversionary heredity, and bore the impression, in not only the bodily form, but the instincts, passions, manners, and habits of the "cave-dwellers" of the rough-stone age, there appeared to be a fitness and adaptation in the new locality and its surroundings to the man, which was at once appreciated and approved by all persons familiar with him, and his conduct and behavior, both on and off the bench. Under these circumstances the report obtained general credence, that you and your constituents were satisfied with the removal of Judge Turner from the bench of the Eighth Judicial District; and I have no doubt influenced all or nearly all who voted to indefinitely postpone his impeachment. As for myself, having a personal knowledge of the truth of the charges made against Judge Turner by the citizens of Yuba and Nevada Counties, I am free to say that no consideration other than that you and your constituents were satisfied with Judge Turner's removal from the Eighth Judicial District, could have induced me to cast my vote for the indefinite postponement of Judge Turner's impeachment. Do you realize the fact, my dear Judge, that more than a quarter of a century has elapsed since these events transpired? Though my respect for you as a man, and my admiration for you as a jurist, have increased since we were actors in these scenes; yet I am frank enough to say to you, that if I had to play my part again, with my increased experience, I would not vote to indefinitely postpone the impeachment of a judge whom I knew to be guilty of the charges made against Judge Turner by yourself and others, _even though the report were true_ that you and your constituents were satisfied with his simple removal from your judicial district. Respectfully and truly yours, &c., JOS. W. MCCORKLE. * * * * * _Letter of Mr. Bradford._ SPRINGFIELD, ILL, _May 8th, 1879_. JUDGE FIELD. MY DEAR FRIEND: Yours of the 27th April should have been answered ere this, but before doing so I desired to get all the reminders that I could. I looked carefully over the journal. All that I had recollected in the whole matter was that I had an intense feeling in favor of sustaining your position, and when you informed me that I had voted to dismiss the proceedings I was profoundly astonished. I thought you must be mistaken until I saw the journal.... Some very satisfactory assurance must have been given me that such vote would be satisfactory to you, and I only wonder that I did not have the assurance verified.... I assume that the Editor is correct in the explanation as given. Very truly, J.S. BRAFORD. * * * * * _Letter of Mr. Carr._ SAN FRANCISCO, _May 15th, 1879_. MY DEAR JUDGE: I have received your letter and a printed copy of the record of the proceedings of the Assembly of California of 1851, in the matter of the impeachment of William R. Turner, Judge of the then Eighth Judicial District of the State. In reply, I have to say, that the statement of the Editor as to the vote on the motion to indefinitely postpone the proceedings is correct, so far as I am concerned. It was distinctly understood by me, and to my knowledge by other members of the Assembly, that you had consented to such postponement, it being explained that the postponement was not to be taken as an approval of the Judge's conduct. On no other ground could the motion have been carried. If the vote had been taken on the charges made, articles of impeachment against the Judge would undoubtedly have been ordered. Your consent to the postponement was understood to have been given, because of the change in the judicial districts by an act introduced into the Assembly by yourself, under which Judge Turner was sent to a district in the northern part of the State, where there was at the time scarcely any legal business, and which was removed to a great distance from the district in which you resided, and because of the general desire manifested by others to bring the session of the Legislature to a speedy close. The impeachment of the Judge would have necessitated a great prolongation of the session. No member of the Assembly justified or excused the atrocious and tyrannical conduct of the Judge towards yourself and others. I am, very truly, yours, JESSE D. CARR. HON. STEPHEN J. FIELD. [1] By mistake, there are two Exhibits H; they are, therefore, marked No. I. and No. II. * * * * * EXHIBIT H, No. II. _Letter of Judge Gordon N. Mott giving the particulars of the difficulty with Judge Barbour._ SAN FRANCISCO, _Apr. 28th, 1876_. HON. STEPHEN J. FIELD. DEAR SIR: Your letter of the eleventh instant, in which you requested me to give you, in writing, an account of the affair between yourself and Judge W.T. Barbour, at Marysville in 1853, was duly received. The facts in relation to that unpleasant affair are as fresh in my memory as if they had happened yesterday; and I give them to you the more willingly for the reason that you incurred the spite and malice of Judge Barbour, by acts of personal and professional kindness to me, which gave him no just or reasonable cause of offence; and though the following statement of facts will place the character of Judge Barbour, now deceased, in a very bad and even ludicrous light, the events in mind are nevertheless a part of the history of our early days in California, and I see no impropriety in complying with your request. The facts are as follows: You and I were walking together along D street in the city of Marysville, when we met Judge Barbour, who, after using some offensive and insolent remarks, gave you a verbal challenge to meet him in the way resorted to by gentlemen for the settlement of their personal difficulties. You accepted the challenge instantly, and referred him to me, as your friend, who would act for you in settling the preliminaries of a hostile meeting. In half an hour I was called upon by Hon. Chas. S. Fairfax as the friend of Judge Barbour. He said Judge Barbour had told him that Judge Field had challenged him to mortal combat, and requested him to meet me for the purpose of arranging the terms of the meeting between them. I told Mr. Fairfax at once that such was not my understanding of the matter; that I was present when the challenge was given by Judge Barbour and accepted by Judge Field. After further consultation with you we agreed that it was better for you to accept the false position in which Judge Barbour seemed determined to place you, and "to fight it out on that line," than longer submit to the insolence and persecution of a bitter and unscrupulous adversary. Mr. Fairfax then claimed, in behalf of Judge Barbour, that, as he was the party challenged, he had the right to the choice of weapons, and the time, place, and manner of the combat; to which I assented. He then stated that Judge Barbour proposed that the meeting should take place that evening in a room twenty feet square; that each party was to be armed with a Colt's navy revolver and a _Bowie-knife_; that they should be stationed at opposite sides of the room, and should fire at the word, and advance at pleasure, and finish the conflict with the knives. I told Mr. Fairfax that the terms proposed by his principal were unusual and inconsistent with the "code," and that I could not consent to them or countenance a conflict so unprecedented and barbarous. Mr. Fairfax agreed with me that Judge Barbour had no right to insist upon the terms proposed, and said that he would consult with him and get him to modify his proposition. Upon doing so he soon returned, and stated that Judge Barbour insisted upon the terms he had proposed as his ultimatum, and requested me to go with him and call on Judge Barbour, which I did. I had now come to the conclusion that Barbour was playing the role of the bravo and bully, and that he did not intend to fight, and resolved on the course that I would pursue with him. Mr. Fairfax and myself then called on Judge Barbour, and I repeated what I had said to Mr. Fairfax, adding that it would be shameful for two gentlemen, occupying such positions as they in society, to fall upon each other with knives like butchers or savages, and requesting him to dispense with the knives, which he still refused to do. I then looked him straight in the eye and said, well, sir, if you insist upon those terms, we shall accept. I saw his countenance change instantly. "His coward lips did from their color fly;" and he finally stammered out that he would "waive the knife." Without consulting you, I had determined that if Barbour still insisted upon a conflict with Bowie-knives I would take your place, believing that he would not have any advantage over me in any fight he could make; and knowing, moreover, that you had involved yourself in the difficulty on my account, I thought it only just for me to do so. But it was demonstrated in the sequel that Barbour was playing the game of bluff, and that he did not intend to fight from the start. It was finally settled, however, that the combat should take place as first proposed, except that pistols only were to be used. Mr. Fairfax and myself then commenced looking about for a room; but in the meantime the affair had been noised about town and we found it impossible to get one. Mr. Fairfax then, after consulting Judge Barbour, proposed that the meeting should take place the next morning in Sutter County; to which I assented; and all the terms and preliminaries were arranged and agreed upon. At that time there were two daily lines of stages leaving Marysville for Sacramento, and you and your friends were to go down the Sacramento road to a point below Bear River in advance of the stages, and I was to select a suitable place for the meeting. Judge Barbour and his friends were to follow us in one of the coaches and I was to hail the driver as he approached the place of meeting. You and your adversary were to be stationed one hundred yards apart, each armed with as many Colt's revolvers as he chose to carry; to fire upon each other at the word, and to advance at pleasure and finish the conflict. Our party was promptly on the ground according to agreement; and when the first coach came in sight I hailed the driver and found that Judge Barbour and his friends were not aboard, and the coach passed on a little below us and turned out of the road and stopped. Soon after the other coach came in sight, and I again hailed the driver, who stopped the coach, and Judge Barbour instantly jumped out, and in a very excited manner said that he was going forward to the other coach, and called on the passengers "to take notice, that if that d----d rascal" (pointing to you) "attacked him he would kill him." I stepped in front of Judge Barbour and said: Hold! Judge Field will not attack you, sir; remarking at the same time to Mr. Fairfax that this was strange conduct on the part of his friend, and not in accordance with our understanding and agreement; that each party was to bear his portion of the responsibility of the meeting which was to take place between them. Mr. Fairfax appeared both astonished and mortified at the pusillanimous conduct of his principal, who seemed determined to rush forward to the other coach; and I requested him to wait until I could go back and consult you in the matter, for I was afraid that you might possibly be provoked to make the attack. When I returned to you and explained what had been said at the coach, you asked if it would be proper for you to make the attack. I told you most decidedly not; to let the coward go, and he would never annoy or trouble you again. Mr. Fairfax, who possessed a nice sense of honor, and was a gallant and accomplished gentleman, was so disgusted and mortified at the conduct of his principal that he left him and came over and joined our party, and after taking breakfast with us at Nicolaus, returned with us to Marysville, while Judge Barbour went on his way to Sacramento. Thus, what threatened in its inception to be a sanguinary tragedy, ended in a ridiculous farce. The determined and resolute stand which you assumed in this affair with Judge Barbour, saved you from any farther insolence or persecution from men of his class. This letter has been drawn out to a most tedious length, and yet there are many circumstances connected with our early life and times in Marysville that I would add but for fear of trying your patience. Please write to me on receipt of this, and tell me how my memory of the facts contained in this letter agrees with yours. Very respectfully and truly your friend, GORDON N. MOTT. * * * * * EXHIBIT I. _Letter of L. Martin, Esq., the friend of Judge Barbour in his street attack._ MARYSVILLE, _Tuesday, March 21, '54_. DEAR JUDGE: I was glad to hear a few days ago from our friend Filkins that the trouble between you and Judge Barbour had been settled, and that the hatchet was buried. I wish now to explain my connection with the assault made upon you about a year ago by Barbour.[1] You have always appeared to think me in some way implicated in that affair, because I was seen by you at that time not far off from him. The facts are these: Judge Barbour told me the night before that he expected to have a street fight with you, and wanted me to accompany him. I had heard of his conduct in the affair of the intended duel in Sutter County, and knew there was bad blood between you, but I was astonished at his saying there was going to be a difficulty between you in the street. I consented to accompany him, but I supposed of course that you had received notice of his purpose, and that there would be no unfair advantage taken by him. I was, therefore, surprised when I saw you in front of your office with your arms partly filled with small pieces of board, apparently to kindle a fire. Barbour's drawing a pistol upon you under these circumstances, and calling upon you to draw and defend yourself, was not what we call at the South very chivalric. It was not justified by me then, and never has been in any way or manner, and I told him he had acted badly. I was glad to hear you defy him as you did, and dare him to shoot. I reckon he is not very proud of his conduct. I have never approved of his action, and should never have accompanied him had I believed or suspected he had not given you notice of his purpose. With great respect I am very truly yours, L. MARTIN. HON. JUDGE FIELD. [1] It was February 21, 1863. * * * * * EXHIBIT J. _Sections four, five, and seven of the act entitled "An act to expedite the settlement of titles to lands in the State of California," approved July 1st, 1864._ SEC. 4. _And be it further enacted_, That whenever the district judge of any one of the district courts of the United States for California is interested in any land, the claim to which, under the said act of March third, eighteen hundred and fifty-one, is pending before him on appeal from the board of commissioners created by said act, the said district court shall order the case to be transferred to the Circuit Court of the United States for California, which court shall thereupon take jurisdiction and determine the same. The said district courts may also order a transfer to the said circuit court of any other cases arising under said act, pending before them, affecting the title to lands within the corporate limits of any city or town, and in such cases both the district and circuit judges may sit. SEC. 5. _And be it further enacted_, That all the right and title of the United States to the lands within the corporate limits of the city of San Francisco, as defined in the act incorporating said city, passed by the Legislature of the State of California, on the fifteenth of April, one thousand eight hundred and fifty-one, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinance of said city, ratified by an act of the Legislature of the said State, approved on the eleventh of March, eighteen hundred and fifty-eight, entitled "An act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city," there being excepted from this relinquishment and grant all sites or other parcels of lands which have been, or now are, occupied by the United States for military, naval, or other public uses, [or such other sites or parcels as may hereafter be designated by the President of the United States, within one year after the rendition to the General Land-Office, by the surveyor-general, of an approved plat of the exterior limits of San Francisco, as recognized in this section, in connection with the lines of the public surveys: _And provided_, That the relinquishment and grant by this act shall in no manner interfere with or prejudice any bona fide claims of others, whether asserted adversely under rights derived from Spain, Mexico, or the laws of the United States, nor preclude a judicial examination and adjustment thereof.] SEC. 7. _And be it further enacted_, That it shall be the duty of the Surveyor-General of California, in making surveys of the private land claims finally confirmed, to follow the decree of confirmation as closely as practicable whenever such decree designates the specific boundaries of the claim. But when such decree designates only the out-boundaries within which the quantity confirmed is to be taken, the location of such quantity shall be made, as near as practicable, in one tract and in a compact form. And if the character of the land, or intervening grants, be such as to render the location impracticable in one tract, then each separate location shall be made, as near as practicable, in a compact form. And it shall be the duty of the Commissioner of the General Land-Office to require a substantial compliance with the directions of this section before approving any survey and plat forwarded to him.--[13 Stats. at Large, pp. 333-4.] That part of the fifth section, which is included within brackets, was inserted at the suggestion of the Commissioner of the General Land-Office. * * * * * _The act entitled "An act to quiet the title to certain lands within the corporate limits of the city of San Francisco," approved March 8th, 1866._ _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That all the right and title of the United States to the land situated within the corporate limits of the city of San Francisco, in the State of California, confirmed to the city of San Francisco by the decree of the Circuit Court of the United States for the Northern District of California, entered on the eighteenth day of May, one thousand eight hundred and sixty-five, be, and the same are hereby, relinquished and granted to the said city of San Francisco and its successors, and the claim of the said city to said land is hereby confirmed, subject, however, to the reservations and exceptions designated in said decree, and upon the following trusts, namely, that all the said land, not heretofore granted to said city, shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon such terms and conditions as the legislature of the State of California may prescribe, except such parcels thereof as may be reserved and set apart by ordinance of said city for public uses: _Provided, however_, That the relinquishment and grant by this act shall not interfere with or prejudice any valid adverse right or claim, if such exist, to said land or any part thereof, whether derived from Spain, Mexico, or the United States, or preclude a judicial examination and adjustment thereof.--[14 Stat. at Large, p. 4.] * * * * * EXHIBIT K. _Letter of Judge Lake giving an account of the torpedo._ SAN FRANCISCO, _April 29, '80_. Honorable STEPHEN J. FIELD. MY DEAR SIR: In the winter of 1866 I was in Washington attending the United States Supreme Court, and was frequently a visitor at your room. One morning in January of that year I accompanied you to your room, expecting to find letters from San Francisco, as I had directed that my letters should be forwarded to your care. I found your mail lying on the table. Among other matter addressed to you was a small package, about four inches square, wrapped in white paper, and bearing the stamp of the Pioneer Photographic Gallery of San Francisco. Two printed slips were pasted upon the face of the package and formed the address: Your name, evidently cut from the title-page of the "California Law Reports;" and "Washington, D.C.," taken from a newspaper. You supposed it to be a photograph, and said as much to me, though from the first you professed surprise at the receipt of it. You were standing at the window, when you began to open it, and had some difficulty in making the cover yield. When you had removed the cover you raised the lid slightly, but in a moment said to me, "What is this, Lake? It can hardly be a photograph." A sudden suspicion flashed upon me, and stepping to your side, I exclaimed, "Don't open it; it means mischief!" When I had looked at it more nearly, I said, "It's an infernal machine" or "a torpedo." I carried it over to the Capitol, opposite to your rooms, where Mr. Broom, one of the clerks of the Supreme Court, joined me in the examination of your mysterious looking present. It was put in water, and afterwards we dashed off the lid of the box by throwing it against the wall in the carriage way under the Senate steps. About a dozen copper cartridges were disclosed--those used in a Smith & Wesson pocket pistol, it appeared afterward--six of them lying on each side of a bunch of friction matches in the centre. The sides of the cartridges had been filed through, so that the burning of the matches might explode the cartridges. The whole was kept in place in a bed of common glue, and a strip of sand-paper lying upon the heads of the matches was bent into a loop to receive the bit of thread, whose other end, secured to the clasp of the box, produced that tension and consequent pressure requisite to ignite the matches upon the forcible opening of the lid. To make assurance doubly sure, a paste of fulminating powder and alcohol had been spread around the matches and cartridges. There was a newspaper slip also glued to the inside of the lid, with words as follows: "Monday, Oct. 31, 1864. The City of San Francisco vs. United States. Judge Field yesterday delivered the following opinion in the above case. It will be read with great interest by the people of this city." Then followed several lines of the opinion. Even that gave no clue to the source of the infernal machine, but from the fact that it was evidently made by a scientific man, and that from its size it must have been passed through the window at the post office, instead of into the letter-box, it was thought [that there was] a sufficiently conspicuous mode of action to expose the sender of the torpedo to detection. Whoever it may have been took a late vengeance for the decision of the Pueblo case--if such was the veritable motive of the frustrated assassination--as the decision referred to was rendered in 1864. On that account it was conjectured that the contriver of the machine might be some guilty person, who had received sentence from you, and who used the reference to the Pueblo case to divert suspicion from himself. So far as I know, all efforts to discover the author of the intended mischief have been fruitless. The box with its contents, was sent to the Secretary of War, who directed an examination by the Ordnance Department. General Dyer, then Chief of Ordnance, pronounced it a most cleverly combined torpedo, and exploded one of the cartridges in a closed box, producing a deep indentation upon its sides. General Dyer added, among other analytical details, that the ball weighed 52 grains. All the circumstances connected with the reception of the infernal machine were too singular and, at that time, ominous, not to remain vividly impressed upon my memory. Very truly, your friend, DELOS LAKE. * * * * * EXHIBIT L. _The following is an extract from the Report to the Commissioner of the General Land-Office by the Register and Receiver of the Land-Office in California, to whom the matter of the contests for lands on the Soscol Ranch was submitted for investigation, showing the condition and occupation of the lands previous to the rejection of the grant by the Supreme Court of the United States, and the character of the alleged pre-emption settlements which Julian undertook to defend._ A general report of the facts established by said evidence is briefly as follows:[1] When the United States government took possession of California, Don Mariana Guadaloupe Vallejo was in the occupancy of the rancho of Soscol, claiming to own it by virtue of the grant from the Mexican nation, which has recently (December term, 1861) been declared invalid by the Supreme Court of the United States. His occupancy was the usual one of the country and in accordance with the primitive habits of the people. He possessed the land by herding stock upon it. General Vallejo, as military commandante of his district, consisting of all Alta California lying north of the bay of San Francisco, was necessarily the leading personage of the country. His influence among the rude inhabitants of the Territory was almost monarchical, and his establishment was in accordance with his influence. His residence at Sonoma was the capital of his commandancy, and the people of the country for hundreds of miles around looked to General Vallejo for advice and assistance in business and for protection and defence in time of trouble. These things are part of the history of California. He had other ranches besides that of Soscol, as that at Sonoma, which was devoted to agriculture and residences. The Soscol he especially devoted to the herding and grazing of stock, for which purpose it was most admirably adapted. Wild oats grew in great luxuriance all over this tract, from the water's edge to the tops of the highest hills, and being surrounded on three sides by the waters of the bays and rivers, required little attention in the way of herdsmen. On this rancho General Vallejo kept as many as fifteen thousand head of horses and horned cattle running at will, attended only by the necessary vaqueros employed to watch and attend them. There was no other use to which the land could at that time be devoted. The want of reliable labor and lack of a market both forbade agricultural operations beyond personal or family necessities. It was not practicable then, nor for years after, to put the land to any use other than stock pasturing. We have, therefore, to report that the possession that General Vallejo had of "Soscol" in 1846 was the usual use and possession of the time and the country, and that it was the best and most perfect use and occupation of which the land was capable. The rancho was, therefore, reduced to possession by General Vallejo before the Americans took possession of the country. Soon after the American occupation or conquest, General Vallejo began to sell off portions of the "Soscol," and continued this practice until about the year 1855, at which time he sold the last of it, and does not appear to have had or claimed any interest since. This sale and consequent dividing the land into small parcels produced its usual effect in the way of improvements. From 1855 to 1860 the "rancho of Soscol" was almost entirely reduced to absolute and actual possession and control by his vendees, being by them fenced up into fields, surrounded by substantial enclosures, and improved with expensive farm-houses, out-buildings, orchards, and the like, and was cultivated to grain wherever suitable for that purpose. It had upon it two cities of considerable importance, viz: Benicia and Vallejo, each of which had been at one time the capital of the State of California. No rural district of California was more highly improved than this, and but a very small portion equal to it. The title to "Soscol," before its rejection by the United States Supreme Court, was considered the very best in all California. All the really valuable agricultural land in California was held under Mexican grants, and, as a consequence, all had to pass the ordeal of the Land Commission. From 1853 to about 1860 very few had been finally passed upon by the courts, so that during that time the question for the farmer to decide was not what title is perfect, but what title is most likely to prove so by the final judgment of the Supreme Court. Amongst the very best, in the opinion of the public, stood "Soscol." One conclusive, unanswerable proof of that fact is this, that there was not a single settler on the grant at the time it was rejected. Not one person on it, except in subordination to the Vallejo title. Every resident on the whole tract held his land by purchase from Vallejo, or his assigns, and held just precisely the land so purchased, and not one acre more or less. This fact was not even disputed during the whole eight months of investigation through which we have just passed. It is a notorious fact that of the grants in California which have stood the test of the Supreme Court, very many have been entirely in the possession of squatters, and all with more or less of such possessions, and the final patent has alone succeeded in recovering the long-lost possession to the grantholder. There were no settlers on the "Soscol." The people had the most perfect confidence in the title. It had been twice confirmed by tribunals of high authority and great learning--first by the United States Land Commission, and then by the District Court of the United States. It only wanted the final confirmation by the Supreme Court, and none doubted that it would follow of course. Business could not, and would not, await the nine years consumed in adjudicating this title. Farmers were obliged to have lands, and they bought them. Capital must and would seek investment, and it was lent on mortgage. When all titles required the same confirmatory decree, the citizen could not discriminate, but exercised his best judgment. The sales of lands upon the "Soscol" were made at prices which called for perfect title; they brought the full improved value of the land. Money was lent on mortgage in the same way. The deeds and mortgages, which accompany the respective cases, are the very best evidence of the opinion the public entertained of the character of the Soscol grant title. The people were amazed when it was announced that the Soscol grant had been rejected. No fact developed by this examination has appeared so surprising to the mind of the register and receiver as that there were no pre-emption settlers on the "Soscol." This is so unusual in California that we expected to find the contrary. There was no possession on the tract adverse to the grant title. Thus stood matters until early in the year 1862, when the intelligence reached California that the grant had been rejected by the Supreme Court. The struggle soon began. There was at that time employed upon the United States navy-yard at Mare Island, and also upon the Pacific Mail Company's works at Benicia, a large number of mechanics and laborers. There was also in the towns of Benicia and Vallejo a large floating population. Tempted by the great value of these lands in their highly improved state, many of these persons squatted upon the rancho. The landholders in possession resisted. The houses of the great majority of the settlers were erected in the night time, as it was necessary to enter the enclosed fields by stealth. These houses were built of rough redwood boards set up edgewise, with shed roof, and without window, fire place, or floor. They were about eight feet square, sometimes eight by ten feet, and never over six feet high. We have no hesitation in saying that they were utterly unfit for the habitation of human beings, and further that they were never designed for permanent residences. The mode of erecting these shanties was as follows: The planks were sawed the right length in the town of Vallejo or Benicia, in the afternoon of the day, and at nightfall were loaded upon a cart. About eleven o'clock at night the team would start for the intended settlement, reaching there about one or two o'clock in the morning. Between that hour and daylight the house would be erected and finished. Sometimes the house would be put together with nails, but when too near the residence of the landholder in possession, screws would be used to prevent the sound of the hammer attracting attention. Very few of this class of settlers remained upon their claims above a few days, but soon returned to their ordinary occupations in the towns. Generally after they would leave the landholders would remove the shanties from the ground. In some cases they would pull them down with force immediately upon discovering them, and in the presence of the settlers. A few of them got settlements near enough to their places of employment to enable them to work in town, or at the navy-yard, and to sleep in their shanties; some regularly, others only occasionally. These generally remained longer than the others, but none of this class remained up to the time of trial. None of the settlers, who went on since the grant was rejected, have attempted regular improvements or cultivation. A few have harvested the grain planted by the landholders, as it grew on their 1/4 [quarter-section]; they would harvest it, and offer this as evidence of good faith and cultivation. We have no hesitation in pronouncing, from the evidence, that these are not settlers within the spirit of the pre-emption laws, but are mere speculators, desirous of getting the improvements of another to sell and to make money. [1] The evidence taken before those officers. * * * * * The preceding Personal Reminiscences of Early Days in California by Judge Field, with other sketches, were dictated by him to a stenographer in the summer of 1877, at San Francisco. They were afterwards printed for a few friends, but not published. The edition was small and soon exhausted, and each year since the Judge has been asked for copies. The reprint is therefore made. The history of the attempt at his assassination by a former associate on the supreme bench of California is added. It is written by Hon. George C. Gorham, a warm personal friend of the Judge for many years, who is thoroughly informed of the events described. * * * * * THE STORY OF THE ATTEMPTED ASSASSINATION OF JUSTICE FIELD BY A FORMER ASSOCIATE ON THE SUPREME BENCH OF CALIFORNIA. BY HON. GEORGE C. GORHAM. NOTE BY THE PUBLISHERS. Mr. Gorham is a life-long friend of Justice Field. He was his clerk when the latter held the Alcalde's Court in Marysville, in 1850; and was Clerk of the U. . Circuit Court of the District of California when it was organized, after Judge Field's appointment to the U.S. Supreme Bench. Subsequently, and for several years, he was Secretary of the U.S. Senate. Since his retirement from office he has resided in Washington. For a part of the time he edited a Republican paper in that city, but of late years he has been chiefly engaged in literary works, of which the principal one is the life and history of the late Secretary of War, Edwin M. Stanton. * * * * * INDEX. ATTEMPTED ASSASSINATION OF JUSTICE FIELD BY A FORMER ASSOCIATE ON THE STATE SUPREME BENCH CHAPTER I The Sharon-Hill-Terry Litigation. CHAPTER II Proceedings in the Superior Court of the State. CHAPTER III Proceedings in the United States Circuit Court. [Transriber's note: there is no Chapter IV] CHAPTER V Decision of the Case in the Federal Court. CHAPTER VI The Marriage of Terry and Miss Hill. CHAPTER VII The Bill of Revivor. CHAPTER VIII The Terrys Imprisoned for Contempt. CHAPTER IX Terry's Petition to the Circuit Court for a Release--Its Refusal--He Appeals to the Supreme Court--Unanimous Decision against Him there. CHAPTER X President Cleveland refuses to Pardon Terry--False Statements of Terry Refuted. CHAPTER XI Terry's continued Threats to Kill Justice Field--Return of the Latter to California in 1889. CHAPTER XII Further Proceedings in the State Court.--Judge Sullivan's Decision Reversed. CHAPTER XIII Attempted Assassination of Justice Field, Resulting in Terry's own Death at the Hands of a Deputy United States Marshal. CHAPTER XIV Sarah Althea Terry Charges Justice Field and Deputy Marshal Neagle with Murder. CHAPTER XV Justice Field's Arrest and Petition for Release on Habeas Corpus. CHAPTER XVI Judge Terry's Funeral--Refusal of the Supreme Court of California to Adjourn on the Occasion. CHAPTER XVII Habeas Corpus Proceedings in Justice Field's Case. CHAPTER XVIII Habeas Corpus Proceedings in Neagle's Case. CHAPTER XIX Expressions of Public Opinion. CHAPTER XX The Appeal to the Supreme Court of the United States, and the Second Trial of Sarah Althea's Divorce Case. CHAPTER XXI Concluding Observations. * * * * * ATTEMPTED ASSASSINATION OF JUSTICE FIELD BY A FORMER ASSOCIATE ON THE STATE SUPREME BENCH. The most thrilling episode in the eventful life of Justice Field was his attempted assassination at Lathrop, California, on the 14th day of August, 1889, by David S. Terry, who had been Chief Justice of the State during a portion of Justice Field's service on that bench. Terry lost his own life in his desperate attempt, by the alertness and courage of David S. Neagle, a Deputy United States Marshal, who had been deputed by his principal, under an order from the Attorney-General of the United States, to protect Justice Field from the assassin, who had, for nearly a year, boldly and without concealment, proclaimed his murderous purpose. The motive of Terry was not in any manner connected with their association on the State supreme bench, for there had never been any but pleasant relations between them. Terry resigned from the bench in 1859 to challenge Senator Broderick of California to the duel in which the latter was killed. He entered the Confederate service during the war, and some time after its close he returned to California, and entered upon the practice of the law. In 1880 he was a candidate for Presidential elector on the Democratic ticket. His associates on that ticket were all elected, while he was defeated by the refusal of a number of the old friends of Broderick to give him their votes. It is probable that his life was much embittered by the intense hatred he had engendered among the friends of Broderick, and the severe censure of a large body of the people of the State, not especially attached to the political fortunes of the dead Senator. These facts are mentioned as furnishing a possible explanation of Judge Terry's marked descent in character and standing from the Chief-Justiceship of the State to being the counsel, partner, and finally the husband of the discarded companion of a millionaire in a raid upon the latter's property in the courts. It was during the latter stages of this litigation that Judge Terry became enraged against Justice Field, because the latter, in the discharge of his judicial duties, had been compelled to order the revival of a decree of the United States Circuit Court, in the rendering of which he had taken no part. A proper understanding of this exciting chapter in the life of Justice Field renders necessary a narrative of the litigation referred to. It is doubtful if the annals of the courts or the pages of romance can parallel this conspiracy to compel a man of wealth to divide his estate with adventurers. Whether it is measured by the value of the prize reached for, by the character of the conspirators, or by the desperate means to which they resorted to accomplish their object, it stands in the forefront of the list of such operations. CHAPTER I. THE SHARON-HILL-TERRY LITIGATION. The victim, upon a share of whose enormous estate, commonly estimated at $15,000,000, these conspirators had set their covetous eyes, was William Sharon, then a Senator from the State of Nevada. The woman with whom he had terminated his relations, because he believed her to be dangerous to his business interests, was Sarah Althea Hill. Desirous of turning to the best advantage her previous connection with him, she sought advice from an old negress of bad repute, and the result was a determination to claim that she had a secret contract of marriage with him. This negress, who during the trial gave unwilling testimony to having furnished the sinews of war in the litigation to the extent of at least five thousand dollars, then consulted G.W. Tyler, a lawyer noted for his violent manner and reckless practices, who explained to her what kind of a paper would constitute a legal marriage contract under the laws of California. No existing contract was submitted to him, but he gave his written opinion as to what kind of a contract it would be good to have for the purpose. The pretended contract was then manufactured by Sarah Althea in accordance with this opinion, and Tyler subsequently made a written agreement with her by which he was to act as her attorney, employ all necessary assistance, and pay all expenses, and was to have one-half of all they could get out of Sharon by their joint efforts as counsel and client. This contract was negotiated by an Australian named Neilson, who was to have one-half of the lawyer's share. On the 7th of September, 1883, a demand was made upon Mr. Sharon for money for Miss Hill. He drove her emissary, Neilson, out of the hotel where he had called upon him, and the latter appeared the next day in the police court of San Francisco and made an affidavit charging Mr. Sharon with the crime of adultery. A warrant was issued for the latter's arrest, and he was held to bail in the sum of $5,000. This charge was made for the avowed purpose of establishing the manufactured contract of marriage already referred to, which bore date three years before. A copy of this alleged contract was furnished to the newspapers together with a letter having Sharon's name appended to it, addressed at the top to "My Dear Wife," and at the bottom to "Miss Hill." This pretended contract and letter Mr. Sharon denounced as forgeries. On the 3d of October, 1883, Mr. Sharon commenced suit in the United States Circuit Court at San Francisco against Sarah Althea Hill, setting forth in his complaint that he was a citizen of the State of Nevada, and she a citizen of California; "that he was, and had been for years, an unmarried man; that formerly he was the husband of Maria Ann Sharon, who died in May, 1875, and that he had never been the husband of any other person; that there were two children living, the issue of that marriage, and also grandchildren, the children of a deceased daughter of the marriage; that he was possessed of a large fortune in real and personal property; was extensively engaged in business enterprises and ventures, and had a wide business and social connection; that, as he was informed, the defendant was an unmarried woman of about thirty years of age, for some time a resident of San Francisco; that within two months then past she had repeatedly and publicly claimed and represented that she was his lawful wife; that she falsely and fraudulently pretended that she was duly married to him on the twenty-fifth day of August, 1880, at the city and county of San Francisco; that on that day they had jointly made a declaration of marriage showing the names, ages, and residences of the parties, jointly doing the acts required by the Civil Code of California to constitute a marriage between them, and that thereby they became and were husband and wife according to the law of that State. "The complainant further alleged that these several claims, representations, and pretensions were wholly and maliciously false, and were made by her for the purpose of injuring him in his property, business, and social relations; for the purpose of obtaining credit by the use of his name with merchants and others, and thereby compelling him to maintain her; and for the purpose of harassing him, and in case of his death, his heirs and next of kin and legatees, into payment of large sums of money to quiet her false and fraudulent claims and pretensions. He also set forth what he was informed was a copy of the declaration of marriage, and alleged that if she had any such instrument, it was 'false, forged, and counterfeited;' that he never, on the day of its date, or at any other time, made or executed any such document or declaration, and never knew or heard of the same until within a month previous to that time, and that the same was null and void as against him, and ought, in equity and good conscience, to be so declared, and ordered to be delivered up, to be annulled and cancelled." The complaint concluded with a prayer that it be adjudged and decreed that the said Sarah Althea Hill was not and never had been his wife; that he did not make the said joint declaration of marriage with her, or any marriage between them; that said contract or joint declaration of marriage be decreed and adjudged false, fraudulent, forged, and counterfeited, and ordered to be delivered up and cancelled and annulled, and that she be enjoined from setting up any claims or pretensions of marriage thereby. Sharon was a citizen of Nevada, while Miss Hill was a citizen of California.[1] Before the time expired in which Miss Hill was required to answer the complaint of Mr. Sharon in the United States Circuit Court, but not until after the federal jurisdiction had attached in that court, she brought suit against him, November 1st, in a state Superior Court, in the city and county of San Francisco, to establish their alleged marriage and then obtain a decree, and a division of the property stated to have been acquired since such marriage. In her complaint she alleged that on the 25th day of August, 1880, they became, by mutual agreement, husband and wife, and thereafter commenced living together as husband and wife; that on that day they had jointly made a declaration of marriage in writing, signed by each, substantially in form as required by the Civil Code of California, and until the month of November, 1881, had lived together as husband and wife; that since then the defendant had been guilty of sundry violations of the marriage contract. The complaint also alleged that when the parties intermarried the defendant did not have in money or property more than five millions of dollars, with an income not exceeding thirty thousand dollars a month, but that since their intermarriage they had by their prudent management of mines, fortunate speculations, manipulations of the stock market, and other business enterprises, accumulated in money and property more than ten millions of dollars, and that now he had in his possession money and property of the value at least of fifteen millions of dollars, from which he received an income of over one hundred thousand dollars a month. The complaint concluded with a prayer that the alleged marriage with the defendant might be declared legal and valid, and that she might be divorced from him, and that an account be taken of the common property, and that the same be equally divided between them. The campaign was thus fully inaugurated, which for more than six years disgraced the State with its violence and uncleanness, and finally ended in bloodshed. The leading combatants were equally resolute and determined. Mr. Sharon, who was a man of remarkable will and energy, would have expended his entire fortune in litigation before he would have paid tribute to those who thus attempted to plunder him. Sarah Althea Hill was respectably connected, but had drifted away from her relations, and pursued, without restraint, her disreputable course. She affected a reckless and daredevil character, carrying a pistol, and exhibiting it on occasions in cow-boy fashion, to convey the impression that those who antagonized her had a dangerous character with whom to deal. She was ignorant, illiterate, and superstitious. The forged document which she thought to make a passport to the enjoyment of a share of Sharon's millions was a clumsy piece of work. It was dated August 25, 1880, and contained a clause pledging secrecy for two years thereafter. But she never made it public until September, 1883, although she had, nearly two years before that, been turned out of her hotel by Sharon's orders. At this treatment she only whimpered and wrote begging letters to him, not once claiming, even in these private letters to him, to be his wife. She could then have published the alleged contract without any violation of its terms, and claimed any rights it conferred, and it is obvious to any sane man that she would have done so had any such document then been in existence. Although Sharon's case against Sarah Althea Hill was commenced in the federal court before the commencement of Miss Hill's case against Sharon in the state court, the latter case was first brought to trial, on the 10th of March, 1884. [1] NOTE.--A court of equity having jurisdiction to lay its hands upon and control forged and fraudulent instruments, it matters not with what pretensions and claims their validity may be asserted by their possessor; whether they establish a marriage relation with another, or render him an heir to an estate, or confer a title to designated pieces of property, or create a pecuniary obligation. It is enough that, unless set aside or their use restrained, they may impose burdens upon the complaining party, or create claims upon his property by which its possession and enjoyment may be destroyed or impaired. (Sharon vs. Terry, 13 Sawyer's Rep., 406.) The Civil Code of California also declares that "a written instrument in respect to which there is a reasonable apprehension that, if left outstanding, it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or cancelled" (Sec. 3412). CHAPTER II. PROCEEDINGS IN THE SUPERIOR COURT OF THE STATE. Mr. Sharon defended in the state court, and prosecuted in the federal court with equal energy. In the former he made an affidavit that the pretended marriage contract was a forgery and applied to the court for the right to inspect it, and to have photographic copies of it made. Sarah Althea resisted the judge's order to produce the document in question, until he informed her that, if she did not obey, the paper would not be admitted as evidence on the trial of the action. On the second day of the trial in the state court Miss Hill reinforced her cause by the employment of Judge David S. Terry as associate counsel. He brought to the case a large experience in the use of deadly weapons, and gave the proceedings something of the character of the ancient "wager of battle." Numerous auxiliaries and supernumeraries in the shape of lesser lawyers, fighters, and suborned witnesses were employed in the proceedings, as from time to time occasion required. The woman testified in her own behalf that upon a visit to Mr. Sharon's office he had offered to pay her $1,000 per month if she would become his mistress; that she declined his offer in a business-like manner, without anger, and entered upon a conversation about getting married; she swore at a subsequent interview she drafted a marriage contract at Sharon's dictation. This document, to which she testified as having been thus drawn up, is as follows: "In the city and county of San Francisco, State of California, on the 25th day of August, A.D., 1880, I, Sarah Althea Hill, of the city and county of San Francisco, State of California, aged twenty-seven years, do here, in the presence of almighty God, take Senator William Sharon, of the State of Nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of Senator William Sharon, of the State of Nevada. SARAH ALTHEA HILL. AUGUST 25, 1880, SAN FRANCISCO, CAL." * * * * * "I agree not to make known the contents of this paper or its existence for two years unless Mr. Sharon, himself, sees fit to make it known. SARAH ALTHEA HILL." * * * * * "In the city and county of San Francisco, State of California, on the 25th day of August, A.D. 1880, I, Senator William Sharon, of the State of Nevada, aged sixty years, do here, in the presence of Almighty God, take Sarah Althea Hill, of the city and county of San Francisco, California, to be my lawful and wedded wife, and do here acknowledge myself to be the husband of Sarah Althea Hill. WILLIAM SHARON, Nevada. AUGUST 25, 1880." In his testimony Mr. Sharon contradicted every material statement made by Sarah Althea Hill. He denied every circumstance connected with the alleged drawing up of the marriage contract. He testified that on the 7th day of November, 1881, he terminated his relations with and dismissed her, and made a full settlement with her by the payment of $3,000 in cash, and notes amounting to $4,500. For these she gave him a receipt in full. He charged her with subsequently stealing that receipt at one of two or three visits made by her after her discharge. It is unnecessary to review the voluminous testimony introduced by the parties in support of their respective contentions. The alleged contract was clearly proven to be a forgery. A number of witnesses testified to conversations had with Miss Hill long after the date of the pretended marriage contract, in which she made statements entirely inconsistent with the existence of such a document. She employed fortune-tellers to give her charms with which she could compel Mr. Sharon to marry her, and this, too, when she pretended to have in her possession the evidence that she was already his wife. Not an appearance of probability attended the claim of this bold adventuress. Every statement she made concerning the marriage contract, and every step she took in her endeavor to enforce it, betrayed its false origin. The trial of the case in the state court continued from March 10th until May 28th, when the summer recess intervened. It was resumed July 15th, and occupied the court until September 17th, on which day the argument of counsel was concluded and the case submitted. No decision was rendered until more than three months afterwards, namely, December 24th. Nearly two months were then allowed to pass before the decree was entered, February 19, 1885. The case was tried before Judge Sullivan without a jury, by consent of the parties. He decided for the plaintiff, holding the marriage contract to be genuine, and to constitute a valid marriage. It was manifest that he made his decision solely upon the evidence given by Sarah Althea herself, whom he nevertheless branded in his opinion as a perjurer, suborner of perjury, and forger. Lest this should seem an exaggeration his own words are here quoted. She stated that she was introduced by Sharon to certain parties as his wife. Of her statements to this effect the Judge said: "Plaintiff's testimony as to these occasions is directly contradicted, and in my judgment her testimony as to these matters is wilfully false." Concerning $7,500 paid her by Sharon, which she alleged she had placed in his hands in the early part of her acquaintance with him, the Judge said: "This claim, in my judgment, is utterly unfounded. No such advance was ever made." At another place in his opinion the Judge said: "Plaintiff claims that defendant wrote her notes at different times after her expulsion from the Grand Hotel. If such notes were written, it seems strange that they have not been preserved and produced in evidence. I do not believe she received any such notes." With respect to another document which purported to have been signed by Mr. Sharon, and which Sarah Althea produced under compulsion, then withdrew it, and failed to produce it afterwards, when called for, saying she had lost it, Judge Sullivan said: "Among the objections suggested to this paper as appearing on its face, was one made by counsel that the signature was evidently a forgery. The matters recited in the paper are, in my judgment, at variance with the facts it purports to recite. Considering the stubborn manner in which the production of this paper was at first resisted and the mysterious manner of its disappearance, I am inclined to regard it in the light of one of the fabrications for the purpose of bolstering up plaintiff's case. I can view the paper in no other light than as a fabrication." In another part of his opinion Judge Sullivan made a sort of a general charge of perjury against her in the following language: "I am of the opinion that to some extent plaintiff has availed herself of the aid of false testimony for the purpose of giving her case a better appearance in the eyes of the court, but sometimes parties have been known to resort to false testimony, where in their judgment it would assist them in prosecuting a lawful claim. As I understand the facts of this case, that was done in this instance." In another place Judge Sullivan said: "I have discussed fully, in plain language, the numerous false devices resorted to by the plaintiff for the purpose of strengthening her case." Miss Sarah and her attorneys had now come in sight of the promised land of Sharon's ample estate. Regular proceedings, however, under the law, seemed to them too slow; and besides there was the peril of an adverse decision of the Supreme Court on appeal. They then decided upon a novel course. Section 137 of the Civil Code of California provides that while an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and to prosecute or defeat the action. The enterprising attorneys, sharing the bold spirit of their client, and presuming upon the compliance of a judge who had already done so well by them, went into the court, on the 8th of January, 1885, and modestly demanded for Sarah Althea, upon the sole authority of the provision of law above quoted, $10,000 per month, as the money necessary to enable her to support herself, and $150,000 for attorneys' fees to prosecute the action. This was to include back pay for thirty-eight months, making a sum of $380,000, which added to the $150,000, attorneys' fees, would have made a grand total of $530,000. This was an attempt, under the color of a beneficent law, applicable only to actions for divorce, in which the marriage was not denied, to extort from a man more than one-half million dollars, for the benefit of a woman, seeking first to establish a marriage, and then to secure a divorce, in a case in which no decree had as yet been entered, declaring her to be a wife. It was not merely seeking the money necessary to support the plaintiff and prosecute the case; it was a request that the inferior court should confiscate more than half a million dollars, in anticipation of a decision of the Supreme Court on appeal. It was as bold an attempt at spoliation as the commencement of the suit itself. The Supreme Court of the State had decided that the order of a Superior Court allowing alimony during the pendency of any action for divorce is not appealable, but it had not decided that, under the pretence of granting alimony, an inferior judge could apportion a rich man's estate among champerty lawyers, and their adventurous client, by an order from which there could be no appeal, made prior to any decree that there had ever been a marriage between the parties, when the fact of the marriage was the main issue in the case. The counsel for Sharon insisted upon his right to have a decree entered from which he could appeal, before being thus made to stand and deliver, and the court entertained the motion. Upon this motion, among other affidavits read in opposition, was one by Mr. Sharon himself, in which he recited the agreement between Miss Hill and her principal attorney, George W. Tyler, in which she was to pay him for his services, one-half of all she might receive in any judgment obtained against Sharon, he, Tyler, advancing all the costs of the litigation. The original of this agreement had been filed by Tyler with the county clerk immediately after the announcement of the opinion in the case as an evidence of his right to half of the proceeds of the judgment. It was conclusive evidence that Sarah Althea required no money for the payment of counsel fees. After the filing of a mass of affidavits, and an exhaustive argument of the motion, Judge Sullivan rendered his decision, February 16, 1885, granting to Sarah Althea Hill an allowance of $2,500 per month, to take effect as of the date of the motion, January 8, 1885, and further sums of $2,500 each to be paid on the 8th day of April, and of each succeeding month until further order of the court. This the Judge thought reasonable allowance "in view of the plaintiff's present circumstances and difficulties." For counsel fees he allowed the sum of $60,000, and at the request of the victors, made in advance, he divided the spoils among them as follows: To Tyler and Tyler $25,000 To David S. Terry 10,000 To Moon and Flournoy 10,000 To W.H. Levy 10,000 To Clement, Osmond and Clement 5,000 By what rule $2,500 was awarded as a proper monthly allowance to the woman whose services to Mr. Sharon had commanded but $500 per month it is difficult to conjecture. It was benevolence itself to give $60,000 to a troop of lawyers enlisted under the command of Tyler, who had agreed to conduct the proceedings wholly at his own cost, for one-half of what could be made by the buccaneering enterprise. It seemed to be the purpose of these attorneys to see how much of Mr. Sharon's money they could, with Judge Sullivan's assistance, lay their hands upon before the entry of the judgment in the case. From the judgment an appeal could be taken. By anticipating its entry they thought that they had obtained an order from which no appeal would lie. It was not until three days after this remarkable order was made that the decree was entered by Judge Sullivan declaring plaintiff and defendant to be husband and wife; that he had deserted her, and that she was entitled to a decree of divorce, with one-half of the common property accumulated by the parties since the date of what he decided to be a valid marriage contract. Sharon appealed from the final judgment, and also from the order for alimony. Notwithstanding this appeal, and the giving of a bond on appeal in the sum of $300,000 to secure the payment of all alimony and counsel fees, Judge Sullivan granted an order directing Mr. Sharon to show cause why he should not be punished for contempt in failing to pay alimony and counsel fees, as directed by the order. The Supreme Court, upon application, granted an order temporarily staying proceedings in the case. This stay of proceedings was subsequently made permanent, during the pendency of the appeal. Mr. Sharon died November 15, 1885. That very day had been set for a hearing of Sharon's motion for a new trial. The argument was actually commenced on that day and continued until the next, at which time the motion was ordered off the calendar because meantime Mr. Sharon had deceased. CHAPTER III. PROCEEDINGS IN THE UNITED STATES CIRCUIT COURT. While these proceedings were being had in the state courts the case of Sharon vs. Hill in the federal court was making slow progress. Miss Hill's attorneys seemed to think that her salvation depended upon reaching a decision in her case before the determination of Sharon's suit in the United States Circuit Court. They were yet to learn, as they afterwards did, that after a United States court takes jurisdiction in a case, it cannot be ousted of that jurisdiction by the decision of a state court, in a proceeding subsequently commenced in the latter. Seldom has "the law's delay" been exemplified more thoroughly than it was by the obstacles which her attorneys were able to interpose at every step of the proceedings in the federal court. Sharon commenced his suit in the United States Circuit Court October 3, 1883, twenty-eight days before his enemy commenced hers in the State Superior Court. By dilatory pleas her counsel succeeded in delaying her answer to Sharon's suit until after the decision in her favor in the state court. She did not enter an appearance in the federal court until the very last day allowed by the rule. A month later she filed a demurrer. Her counsel contrived to delay the argument of this demurrer for seven weeks after it was filed. It was finally argued and submitted on the 21st of January, 1884. On the 3d of March it was overruled and the defendant was ordered to answer in ten days, to wit, March 13th. Then the time for answering was extended to April 24th. When that day arrived her counsel, instead of filing an answer, filed a plea in abatement, denying the non-residence of Mr. Sharon in the State of California, on which depended his right to sue in the federal court. To this Mr. Sharon's counsel filed a replication on the 5th of May. It then devolved upon Miss Hill's counsel to produce evidence of the fact alleged in the plea, but, after a delay of five months and ten days, no evidence whatever was offered, and the court ordered the plea to be argued on the following day. It was overruled, and thirty days were given to file an answer to Sharon's suit. The case in the state court had then been tried, argued, and submitted thirty days before, but Miss Hill's counsel were not yet ready to file their answer within the thirty days given them, and the court extended the time for answer until December 30th. Six days before that day arrived Judge Sullivan rendered his decision. At last, on the 30th of December, 1884, fourteen months after the filing of Sharon's complaint, Sarah Althea's answer was filed in the federal court, in which, among other things, she set up the proceedings and decree of the state court, adjudging the alleged marriage contract to be genuine and legal, and the parties to be husband and wife, and three days later Sharon filed his replication. There was at no time any delay or want of diligence on the part of the plaintiff in prosecuting this suit to final judgment. On the contrary, as is plainly shown in the record above stated, the delays were all on the part of the defendant. The taking of the testimony in the United States Circuit Court commenced on the 12th of February, 1885, and closed on the 12th of August following. The struggle in the state court was going on during all the time of the taking of the testimony in the federal court, and intensified the excitement attendant thereon. Miss Hill was in constant attendance before the examiner who took the testimony, often interrupting the proceedings with her turbulent and violent conduct and language, and threatening the lives of Mr. Sharon's counsel. She constantly carried a pistol, and on occasions exhibited it during the examination of witnesses, and, pointing it at first one and then another, expressed her intention of killing them at some stage of the proceedings. She was constantly in contempt of the court, and a terror to those around her. Her conduct on one occasion, in August, 1885, became so violent that the taking of the testimony could not proceed, and Justice Field, the presiding judge of the circuit, made an order that she should be disarmed, and that a bailiff of the court should sit constantly at her side to restrain her from any murderous outbreak, such as she was constantly threatening. Her principal attorney, Tyler, was also most violent and disorderly. Judge Terry, while less explosive, was always ready to excuse and defend his client. (See Report of Proceedings in Sharon vs. Hill, 11 Sawyer's Circuit Court Reps., 122.) Upon the request of counsel for the complainant, the examiner in one case reported to the court the language and the conduct of Miss Hill. Among other things, he reported her as saying: "When I see this testimony [from which certain scandalous remarks of hers were omitted] I feel like taking that man Stewart[1] out and cowhiding him. I will shoot him yet; that very man sitting there. To think that he would put up a woman to come here and deliberately lie about me like that. I will shoot him. They know when I say I will do it that I will do it. I shall shoot him as sure as you live; that man that is sitting right there. And I shall have that woman Mrs. Smith arrested for this, and make her prove it." And again: "I can hit a four-bit piece nine times out of ten." The examiner said that pending the examination of one of the witnesses, on the occasion mentioned, the respondent drew a pistol from her satchel, and held it in her right hand; the hand resting for a moment upon the table, with the weapon pointed in the direction of Judge Evans. He also stated that on previous occasions she had brought to the examiner's room during examinations a pistol, and had sat for some length of time holding it in her hand, to the knowledge of all persons present at the time. After the reading of the examiner's report in open court, Justice Field said: "In the case of William Sharon versus Sarah Althea Hill, the Examiner in Chancery appointed by the court to take the testimony has reported to the court that very disorderly proceedings took place before him on the 3d instant; that at that day, in his room, when counsel of the parties and the defendant were present, and during the examination of a witness by the name of Piper, the defendant became very much excited, and threatened to take the life of one of the counsel, and that subsequently she drew a pistol and declared her intention to carry her threat into effect. It appears also from the report of the examiner that on repeated occasions the defendant has attended before him, during the examination of witnesses, armed with a pistol. Such conduct is an offense against the laws of the United States punishable by fine and imprisonment. It interferes with the due order of proceedings in the administration of justice, and is well calculated to bring them into contempt. I, myself, have not heretofore sat in this case and do not expect to participate in its decision; I intend in a few days to leave for the East, but I have been consulted by my associate, and have been requested to take part in this side proceeding, for it is of the utmost importance for the due administration of justice that such misbehavior as the examiner reports should be stopped, and measures be taken which will prevent its recurrence. My associate will comment on the laws of Congress which make the offense a misdemeanor, punishable by fine and imprisonment. "The marshal of the court will be directed to disarm the defendant whenever she goes before the examiner or into court in any future proceeding, and to appoint an officer to keep strict surveillance over her, in order that she may not carry out her threatened purpose. This order will be entered. The Justice then said that it is to be observed that this block, embracing this building--the court-house--is under the exclusive jurisdiction of the United States. Every offense committed within it is an offense against the United States, and the State has no jurisdiction whatever. This fact seems to have been forgotten by the parties." The following is the order then entered as directed by Justice Field: "Whereas it appears from the report to this court of the Examiner in Chancery in this case appointed to take the depositions of witnesses, that on the 3d day of August, instant, at his office, counsel of the parties appeared, namely, William M. Stewart, Esquire, and Oliver P. Evans, Esquire, for the complainant, and W.B. Tyler, Esquire, for the defendant, and the defendant in person, and that during the examination before said examiner of a witness named Piper, the defendant became excited and threatened the life of the counsel of the complainant present, and exhibited a pistol with a declared intention to carry such threat into effect, thereby obstructing the order of the proceedings, and endeavoring to bring the same into contempt; and "Whereas it further appears that said defendant habitually attends before said examiner carrying a pistol, "_It is ordered_, That the marshal of this court take such measures as may be necessary to disarm the said defendant, and keep her disarmed, and under strict surveillance, while she is attending the examination of witnesses before said examiner, and whenever attending in court, and that a deputy be detailed for that purpose." [1] Senator Stewart, who was one of the counsel against her in the suit. CHAPTER V. DECISION OF THE CASE IN THE FEDERAL COURT. The taking of the testimony being completed, the cause was set for a hearing on September 9th. After an argument of thirteen days the cause was submitted on the 29th of September, 1885. On the 26th of December, 1885, the court rendered its decision, that the alleged declaration of marriage and the letters purporting to have been addressed "My Dear Wife" were false and forged, and that the contemporaneous conduct of the parties, and particularly of the defendant, was altogether incompatible with the claim of marriage or the existence of any such declaration or letters. A decree was ordered accordingly, and the court made the following further order: "As the case was argued and submitted during the lifetime of the complainant, who has since deceased, the decree will be entered nunc pro tunc, as of September 29, 1885, the date of its submission and a day prior to the decease of the complainant." The opinion of the court was delivered by Judge Deady, of the United States District Court of Oregon, who sat in the case with Judge Sawyer, the circuit judge. Of the old negress under whose direction the fraudulent marriage contract had been manufactured, and under whose advice and direction the suit in the state court had been brought, the Judge said: "Mary E. Pleasant, better known as Mammie Pleasant, is a conspicuous and important figure in this affair; without her it would probably never have been brought before the public. She appears to be a shrewd old negress of some means. "In my judgment this case and the forgeries and perjuries committed in its support had their origin largely in the brain of this scheming, trafficking, crafty old woman." He found that the declaration of marriage was forged by the defendant by writing the declaration over a simulated signature, and that her claim to be the wife of the plaintiff was wholly false, and had been put forth by her and her co-conspirators for no other purpose than to despoil the plaintiff of his property. Judge Sawyer also filed an opinion in the case, in which he declared that the weight of the evidence satisfactorily established the forgery and the fraudulent character of the instrument in question. CHAPTER VI. THE MARRIAGE OF TERRY AND MISS HILL. Sarah Althea now received a powerful recruit, who enlisted for the war. This was one of her lawyers, David S. Terry, whom she married on the 7th day of January, 1886, twelve days after the decision of the Circuit Court against her, and which he had heard announced, but before a decree had been entered in conformity with the decision. Terry seemed willing to take the chances that the decree of the Superior Court would not be reversed in the Supreme Court of the State. The decision of the federal court he affected to utterly disregard. It was estimated that not less than $5,000,000 would be Sarah Althea's share of Sharon's estate, in the event of success in her suit. She would be a rich widow if it could be established that she had ever been a wife. She had quarreled with Tyler, her principal attorney, long before, and accused him of failing in his professional duty. If she could escape from the obligations of her contract with him, she would not be compelled to divide with him the hoped-for $5,000,000. Although Judge Terry had been Chief Justice of the Supreme Court of California, the crimes of perjury and forgery and subornation of perjury which had been loudly charged in Judge Sullivan's opinion against the woman, in whose favor he gave judgment, seemed to him but trifles. Strangely enough, neither he nor Sarah Althea ever uttered a word of resentment against him on account of these charges. The marriage of Terry with this desperate woman in the face of an adverse decision of the Circuit Court, by which jurisdiction was first exercised upon the subject-matter, was notice to all concerned that, by all the methods known to him, he would endeavor to win her cause, which he thus made his own. He took the position that any denial of Sarah Althea's pretense to have been the wife of Sharon was an insult to her, which could only be atoned by the blood of the person who made it. This was the proclamation of a vendetta against all who should attempt to defend the heirs of Mr. Sharon in the possession of that half of their inheritance which he and Sarah Althea had marked for their own. His subsequent course showed that he relied upon the power of intimidation to secure success. He was a man of powerful frame, accustomed all his life to the use of weapons, and known to be always armed with a knife. He had the reputation of being a fighting man. He had decided that Sarah Althea had been the lawful wife of Sharon, and that therefore he had married a virtuous widow. He had not often been crossed in his purpose or been resisted when he had once taken a position. By his marriage he virtually served notice on the judges of the Supreme Court of the State, before whom the appeal was then pending, that he would not tamely submit to be by them proclaimed to be the dupe of the discarded woman of another. It was well understood that he intended to hold them personally responsible to him for any decision that would have that effect. These intentions were said to have been made known to them. His rule in life, as once stated by himself, was to compel acquiescence in his will by threats of violence, and known readiness to carry his threats into effect. This, he said, would in most cases insure the desired result. He counted on men's reluctance to engage in personal difficulties with him. He believed in the persuasiveness of ruffianism. Whether he thought his marriage would frighten Judges Sawyer and Deady, who had just rendered their decision in the United States Circuit Court, and cause them either to modify the terms of the decree not yet entered, or deter them from its enforcement, is a matter of uncertainty. He was of the ultra State's-rights school and had great faith in the power of the courts of a State when arrayed against those of the United States. He had always denied the jurisdiction of the latter in the case of Sarah Althea, both as to the subject-matter and as to the parties. He refused to see any difference between a suit for a divorce and a suit to cancel a forged paper, which, if allowed to pass as genuine, would entitle its holder to another's property. He persisted in denying that Sharon had been a citizen of Nevada during his lifetime, and ignored the determination of this question by the Circuit Court. But if Judge Terry had counted on the fears of the United States judges of California he had reckoned too boldly, for on the 15th of January, 1886, eight days after his marriage, the decree of the Circuit Court was formally entered. This decree adjudged the alleged marriage contract of August 25, 1880, false, counterfeited, fabricated, and fraudulent, and ordered that it be surrendered to be cancelled and annulled, and be kept in the custody of the clerk, subject to the further order of the court; and Sarah Althea Hill and her representatives were perpetually enjoined from alleging the genuineness or the validity of the instrument, or making use of it in any way to support her claims as wife of the complainant. The execution of this decree would, of course, put an end to Sarah Althea's claim, the hope of maintaining which was supposed to have been the motive of the marriage. To defeat its execution then became the sole object of Terry's life. This he hoped to do by antagonizing it with a favorable decision of the Supreme Court of the State, on the appeals pending therein. It has heretofore been stated that the case against Sharon in the Superior Court was removed from the calendar on the 14th day of November, 1885, because of the defendant's death on the previous day. The 11th of February following, upon proper application, the court ordered the substitution of Frederick W. Sharon as executor and sole defendant in the suit in the place of William Sharon, deceased. The motion for a new trial was argued on the 28th of the following May, and held under advisement until the 4th of the following October, when it was denied. From this order of denial an appeal was taken by the defendant. It must be borne in mind that there were now two appeals in this case to the Supreme Court of the State from the Superior Court. One taken on the 25th of February, 1885, from the judgment of Judge Sullivan, and from his order for alimony and fees, and the other an appeal taken October 4, 1886, from the order denying the new trial in the cause. On the 31st of January, 1888, the Supreme Court rendered its decision, affirming the judgment of the Superior Court in favor of Sarah Althea, but reversing the order made by Judge Sullivan granting counsel fees, and reducing the allowance for alimony from $2,500 per month to $500. Four judges concurred in this decision, namely, McKinstry, Searles, Patterson, and Temple. Three judges dissented, to wit, Thornton, Sharpstein, and McFarland. There then remained pending in the same court the appeal from the order granting a new trial. It was reasonable that Terry should expect a favorable decision on this appeal, as soon as it could be reached. This accomplished, he and Sarah Althea thought to enter upon the enjoyment of the great prize for which they had contended with such desperate energy. Terry had always regarded the decree of the Circuit Court as a mere harmless expression of opinion, which there would be no attempt to enforce, and which the state courts would wholly ignore. Whatever force it might finally be given by the Supreme Court of the United States appeared to him a question far in the future, for he supposed he had taken an appeal from the decree. This attempted appeal was found to be without effect, because when ordered the suit had abated by the death of the plaintiff, and no appeal could be taken until the case was revived by order of the court. This order was never applied for. The two years within which an appeal could have been taken expired January 15, 1888. The decree of the Circuit Court had therefore become final at that time. CHAPTER VII. THE BILL OF REVIVOR. It was at this stage of the prolonged legal controversy that Justice Field first sat in the case. The executor of the Sharon estate, on the 12th of March, 1888, filed a bill of revivor in the United States Circuit Court. This was a suit to revive the case of Sharon vs. Hill, that its decree might stand in the same condition and plight in which it was at the time of its entry, which, being _nunc pro tunc_, was of the same effect as if the entry had preceded the death of Mr. Sharon, the case having been argued and submitted during his lifetime. The decree directed the surrender and cancellation of the forged marriage certificate, and perpetually enjoined Sarah Althea Hill, and her representatives, from alleging the genuineness or validity of that instrument, or making any use of the same in evidence, or otherwise to support any rights claimed under it. The necessity for this suit was the fact that the forged paper had not been surrendered for cancellation, as ordered by the decree, and the plaintiff feared that the defendant would claim and seek to enforce property rights as wife of the plaintiff, by authority of the alleged written declaration of marriage, under the decree of another court, essentially founded thereupon, contrary to the perpetual injunction ordered by the Circuit Court. To this suit, David S. Terry, as husband of the defendant, was made a party. It merely asked the Circuit Court to place its own decree in a position to be executed, and thereby prevent the spoliation of the Sharon estate, under the authority of the decree of Judge Sullivan in the suit in the state court subsequently commenced. A demurrer was filed by the defendant. It was argued in July before Justice Field, Judge Sawyer, and District Judge Sabin. It was overruled on the 3d of September, when the court ordered that the original suit of Sharon against Hill, and the final decree therein, stand revived in the name of Frederick W. Sharon as executor, and that the said suit and the proceedings therein be in the same plight and condition they were in at the death of William Sharon, so as to give the executor, complainant as aforesaid, the full benefit, rights, and protection of the decree, and full power to enforce the same against the defendants, and each of them, at all times and in all places, and in all particulars. The opinion in the case was delivered by Justice Field. During its delivery he was interrupted by Mrs. Terry with violent and abusive language, and an attempt by her to take a pistol from a satchel which she held in her hand. Her removal from the court-room by order of Justice Field; her husband's assault upon the marshal with a deadly weapon for executing the order, and the imprisonment of both the Terrys for contempt of court, will be more particularly narrated hereafter. The commencement of the proceedings for the revival of the suit was well calculated to alarm the Terrys. They saw that the decree in the Circuit Court was to be relied upon for something more than its mere moral effect. Their feeling towards Judges Sawyer and Deady was one of most intense hatred. Judge Deady was at his home in Oregon, beyond the reach of physical violence at their hands, but Judge Sawyer was in San Francisco attending to his official duties. Upon him they took an occasion to vent their wrath. It was on the 14th of August, 1888, after the commencement of the revivor proceedings, but before the decision. Judge Sawyer was returning in the railway train to San Francisco from Los Angeles, where he had been to hold court. Judge Terry and his wife took the same train at Fresno. Judge Sawyer occupied a seat near the center of the sleeping-car, and Judge and Mrs. Terry took the last section of the car, behind him, and on the same side. A few minutes after leaving Fresno, Mrs. Terry walked down the aisle to a point just beyond Judge Sawyer, and turning around with an ugly glare at him, hissed out, in a spiteful and contemptuous tone: "Are you here?" to which the Judge quietly replied: "Yes, Madam," and bowed. She then resumed her seat. A few minutes after, Judge Terry walked down the aisle about the same distance, looked over into the end section at the front of the car, and finding it vacant, went back, got a small hand-bag, and returned and seated himself in the front section, with his back to the engine and facing Judge Sawyer. Mrs. Terry did not (at the moment) accompany him. A few minutes later she walked rapidly down the passage, and as she passed Judge Sawyer, seized hold of his hair at the back of his head, gave it a spiteful twitch and passed quickly on, before he could fully realize what had occurred. After passing she turned a vicious glance upon him, which was continued for some time after taking her seat by the side of her husband. A passenger heard Mrs. Terry say to her husband: "I will give him a taste of what he will get bye and bye." Judge Terry was heard to remark: "The best thing to do with him would be to take him down the bay and drown him." Upon the arrival of Judge Sawyer at San Francisco, he entered a street car, and was followed by the Terrys. Mrs. Terry took a third seat from him, and seeing him, said: "What, are you in this car too?" When the Terrys left the car Mrs. Terry addressed some remark to Judge Sawyer in a spiteful tone, and repeated it. He said he did not quite catch it, but it was something like this: "We will meet again. This is not the end of it." Persons at all familiar with the tricks of those who seek human life, and still contrive to keep out of the clutches of the law, will see in the scene above recited an attempt to provoke an altercation which would have been fatal to Judge Sawyer, if he had resented the indignity put upon him by Mrs. Terry, by even so much as a word. This could easily have been made the pretext for an altercation between the two men, in which the result would not have been doubtful. There could have been no proof that Judge Terry knew of his wife's intention to insult and assault Judge Sawyer as she passed him, nor could it have been proven that he knew she had done so. A remonstrance from Sawyer could easily have been construed by Terry, upon the statement of his wife, into an original, unprovoked, and aggressive affront. It is now, however, certain that the killing of Judge Sawyer was not at that time intended. It may have been, to use Mrs. Terry's words, "to give him a taste of what he would get bye and bye," if he should dare to render the decision in the revivor case adversely to them. This incident has been here introduced and dwelt upon for the purpose of showing the tactics resorted to by the Terrys during this litigation, and the methods by which they sought to control decisions. It is entirely probable that they had hopes of intimidating the federal judges, as many believed some state judges had been, and that thus they might "from the nettle danger, pluck the flower safety." We have seen that they reckoned without their host. We shall now see to what extent their rage carried them on the day that the decision was rendered reviving the decree. CHAPTER VIII. THE TERRYS IMPRISONED FOR CONTEMPT. On the day after Judge Sawyer's return from Los Angeles he called the marshal to his chambers, and notified him of Mrs. Terry's violent conduct towards him on the train in the presence of her husband, so that he might take such steps as he thought proper to keep order when they came into the court-building, and see that there was no disturbance in the court-room. On the morning of September 3d, the marshal was again summoned to Judge Sawyer's room, where Judge Field was also present. They informed him that the decision in the revival suit would be rendered that day, and they desired him to be present, with a sufficient number of bailiffs to keep order in court. They told him that judging from the action of the Terrys on the train, and the threats they were making so publicly, and which were being constantly published in the newspapers, it was not impossible that they might create a disturbance in the court-room. When the court opened that day, it found Terry and his wife already seated within the bar, and immediately in front of the judges. As it afterward appeared, they were both on a war-footing, he being armed with a concealed bowie-knife, and she with a 41-calibre revolver, which she carried in a small hand-bag, five of its chambers being loaded. The judges took their seats on the bench, and very shortly afterward Justice Field, who presided, began reading the opinion of the court in which both of his associates concurred. A printed pamphlet copy of this opinion contains 61 pages, of which 18 are taken up with a statement of the case. The opinion commences at page 19 and covers the remaining 42 pages of the pamphlet. From time to time, as the reading of the opinion progressed, Mrs. Terry, who was greatly excited, was observed to unclasp and clasp again the fastening of her satchel which contained her pistol, as if to be sure she could do so at any desired moment. At the 11th page of the opinion the following passage occurs: "The original decree is not self-executing in all its parts; it may be questioned whether any steps could be taken for its enforcement, until it was revived, but if this were otherwise, the surrender of the alleged marriage contract for cancellation, as ordered, requires affirmative action on the part of the defendant. The relief granted is not complete until such surrender is made. When the decree pronounced the instrument a forgery, not only had the plaintiff the right that it should thus be put out of the way of being used in the future to his embarrassment and the embarrassment of his estate, but public justice required that it should be formally cancelled, that it might constantly bear on its face the evidence of its bad character, whenever or wherever presented or appealed to." When Mrs. Terry heard the above words concerning the surrender of the alleged marriage contract for cancellation, she first endeavored for a few seconds, but unsuccessfully, to open the satchel containing her pistol. For some reason the catch refused to yield. Then, rising to her feet, and placing the satchel before her on the table, she addressed the presiding justice, saying: "Are you going to make me give up my marriage contract?" Justice Field said, "Be seated, madam." She repeated her question: "Are you going to take the responsibility of ordering me to deliver up that contract?" She was again ordered to resume her seat. At this she commenced raving loudly and violently at the justice in coarse terms, using such phrases as these: "Mr. Justice Field, how much have you been bought for? Everybody knows that you have been bought; that this is a paid decision." "How big was the sack?" "How much have you been paid for the decision?" "You have been bought by Newland's coin; everybody knows you were sent out here by the Newlands to make this decision." "Every one of you there have been paid for this decision." At the commencement of this tirade, and after her refusal to desist when twice ordered to do so, the presiding justice directed the marshal to remove her from the court-room. She said defiantly: "I will not be removed from the court-room; you dare not remove me from the court-room." Judge Terry made no sign of remonstrance with her, had not endeavored to restrain her, but had, on the contrary, been seen to nod approvingly to her, as if assenting to something she had said to him just before she sprang to her feet. The instant, however, the court directed her removal from the room, of which she had thus taken temporary possession, to the total suspension of the court proceedings, his soul was "in arms and eager for the fray." As the marshal moved toward the offending woman, he rose from his seat, under great excitement, exclaiming, among other things, "No living man shall touch my wife!" or words of that import, and dealt the marshal a violent blow in the face,[1] breaking one of his front teeth. He then unbuttoned his coat and thrust his hand under his vest, where his bowie-knife was kept, apparently for the purpose of drawing it, when he was seized by persons present, his hands held from drawing his weapon, and he himself forced down on his back. The marshal, with the assistance of a deputy, then removed Mrs. Terry from the court-room, she struggling, screaming, kicking, striking, and scratching them as she went, and pouring out imprecations upon Judges Field and Sawyer, denouncing them as "corrupt scoundrels," and declaring she would kill them both. She was taken from the room into the main corridor, thence into the marshal's business office, and then into an inner room of his office. She did not cease struggling when she reached that room, but continued her frantic abuse. While Mrs. Terry was being removed from the court-room Terry was held down by several strong men. He was thus, by force alone, prevented from drawing his knife on the marshal. While thus held he gave vent to coarse and denunciatory language against the officers. When Mrs. Terry was removed from the court-room he was allowed to rise. He at once made a swift rush for the door leading to the corridor on which was the marshal's office. As he was about leaving the room or immediately after stepping out of it, he succeeded in drawing his knife. As he crossed the threshold he brandished the knife above his head, saying, "I am going to my wife." There was a terrified cry from the bystanders: "He has got a knife." His arms were then seized by a deputy marshal and others present, to prevent him from using it, and a desperate struggle ensued. Four persons held on to the arms and body of Terry, and one presented a pistol to his head, threatening at the same time to shoot him if he did not give up the knife. To these threats Terry paid no attention, but held on to the knife, actually passing it during the struggle from one hand to the other. David Neagle then seized the handle of the knife and commenced drawing it through Terry's hand, when Terry relinquished it. The whole scene was one of the wildest alarm and confusion. To use the language of one of the witnesses, "Terry's conduct throughout this affair was most violent. He acted like a demon, and all the time while in the corridor he used loud and violent language, which could be plainly heard in the court-room, and, in fact, throughout the building," applying to the officers vile epithets, and threatening to cut their hearts out if they did not let him go to his wife. The knife which Terry drew, and which he afterwards designated as "a small sheath knife," was, including the handle, nine and a quarter inches long, the blade being five inches, having a sharp point, and is commonly called a bowie-knife. He himself afterwards represented that he drew this knife, not "because he wanted to hurt anybody, but because he wanted to force his way into the marshal's office." The presiding justice had read only a small portion of the opinion of the court when he was interrupted by the boisterous and violent proceedings described. On their conclusion, by the arrest of the Terrys, he proceeded with the reading of the opinion, which occupied nearly a whole hour. The justices, without adjourning the court, then retired to the adjoining chambers of the presiding justice for deliberation. They there considered of the action which should be taken against the Terrys for their disorderly and contemptuous conduct. After determining what that should be they returned to the court-room and announced it. For their conduct and resistance to the execution of the order of the court both were adjudged guilty of contempt and ordered, as a punishment, to be imprisoned in the county jail, Terry for six months and his wife for thirty days. When Terry heard of the order, and the commitment was read to him, he said, "Judge Field" (applying to him a coarse and vituperative epithet) "thinks when I get out, when I get released from jail, that he will be in Washington, but I will meet him when he comes back next year, and it will not be a very pleasant meeting for him." Mrs. Terry said that she would kill both Judges Field and Sawyer, and repeated the threat several times. While the prisoners were being taken to jail, Mrs. Terry said to her husband, referring to Judge Sawyer: "I wooled him good on the train coming from Los Angeles. He has never told that." To which he replied: "He will not tell that; that was too good." She said she could have shot Judge Field and killed him from where she stood in the court-room, but that she was not ready then to kill the old villain; she wanted him to live longer. While crossing the ferry to Oakland she said, "I could have killed Judges Field and Sawyer; I could shoot either one of them, and you would not find a judge or a jury in the State would convict me." She repeated this, and Terry answered, saying: "No, you could not find a jury that would convict any one for killing the old villain," referring to Judge Field. The jailer at Alameda testified that one day Mrs. Terry showed him the sheath of her husband's knife, saying: "That is the sheath of that big bowie-knife that the Judge drew. Don't you think it is a large knife?" Judge Terry was present, and laughed and said: "Yes; I always carry that," meaning the knife. To J.H. O'Brien, a well-known citizen, Judge Terry said that "after he got out of jail he would horsewhip Judge Field. He said he did not think he would ever return to California, but this earth was not large enough to keep him from finding Judge Field, and horsewhipping him," and said, "if he resents it I will kill him." To a newspaper writer, Thomas T. Williams, he said: "Judge Field would not dare to come out to the Pacific Coast, and he would have a settlement with him if he did come." J.M. Shannon, a friend of Terry's for thirty years, testified that while the Terrys were in jail he called there with Mr. Wigginton, formerly a member of Congress from California; that during the call Mrs. Terry said something to her husband to the effect that they could not do anything at all in regard to it. He said: "Yes, we can." She asked what they could do. He said: "I can kill old Sawyer, damn him. I will kill old Sawyer, and then the President will have to appoint some one in his place." In saying this "he brought his fist down hard and seemed to be mad." Ex-Congressman Wigginton also testified concerning this visit to Terry. It occurred soon after the commitment. He went to arrange about some case in which he and Terry were counsel on opposite sides. He told Terry of a rumor that there was some old grudge or difference between him and Judge Field. Terry said there was none he knew of. He said: "'When Judge Field's name was mentioned as candidate for President of the United States,'--I think he said,--'when I was a delegate to the convention, it being supposed that I had certain influence with a certain political element, that also had delegates in the convention, some friend or friends'--I will not be sure whether it was friend or friends--'of Judge Field came to me and asked for my influence with these delegates to secure the nomination for Judge Field. My answer'--I am now stating the language as near as I can of Judge Terry's--'my answer was, 'no, I have no influence with that element.' I understood it to be the workingmen's delegates. I could not control these delegates, and if I could would not control them for Field.' He said: 'That may have caused some alienation, but I do not know that Field knew that.'" Mr. Wigginton said that Mrs. Terry asked her husband what he could do, and he replied, showing more feeling than he had before: "Do? I can kill old Sawyer, and by God, if necessary, I will, and the President will then have to appoint some one else in his place." [1] One of the witnesses stated that Terry also said, "Get a written order from the court." CHAPTER IX. TERRY'S PETITION TO THE CIRCUIT COURT FOR A RELEASE--ITS REFUSAL--HE APPEALS TO THE SUPREME COURT--UNANIMOUS DECISION AGAINST HIM THERE--PRESIDENT CLEVELAND REFUSES TO PARDON HIM--FALSEHOODS REFUTED. On the 12th of September Terry petitioned the Circuit Court for a revocation of the order of imprisonment in his case, and in support thereof made the following statement under oath: "That when petitioner's wife, the said Sarah A. Terry, first arose from her seat, and before she uttered a word, your petitioner used every effort in his power to cause her to resume her seat and remain quiet, and he did nothing to encourage her in her acts of indiscretion; when this court made the order that petitioner's wife be removed from the court-room your petitioner arose from his seat with the intention and purpose of himself removing her from the court-room quietly and peaceably, and that he had no intention or design of obstructing or preventing the execution of said order of the court; that he never struck or offered to strike the United States marshal until the said marshal had assaulted himself, and had in his presence violently, and as he believed unnecessarily, assaulted the petitioner's wife. "Your petitioner most solemnly swears that he neither drew nor attempted to draw any deadly weapon of any kind whatever in said court-room, and that he did not assault or attempt to assault the U.S. marshal with any deadly weapon in said court-room or elsewhere. And in this connection he respectfully represents that after he left said court-room he heard loud talking in one of the rooms of the U.S. marshal, and among the voices proceeding therefrom he recognized that of his wife, and he thereupon attempted to force his way into said room through the main office of the United States marshal; the door of the room was blocked by such a crowd of men that the door could not be closed; that your petitioner then, for the first time, drew from inside his vest a small sheath-knife, at the same time saying to those standing in his way in said door, that he did not want to hurt any one; that all he wanted was to get into the room where his wife was. The crowd then parted and your petitioner entered the doorway, and there saw a United States deputy marshal with a revolver in his hand pointed to the ceiling of the room. Some one then said: 'Let him in if he will give up his knife,' and your petitioner immediately released hold of the knife to some one standing by. "In none of these transactions did your petitioner have the slightest idea of showing any disrespect to this honorable court or any of the judges thereof. "That he lost his temper, he respectfully submits was a natural consequence of himself being assaulted when he was making an honest effort to peaceably and quietly enforce the order of the court, so as avoid a scandalous scene, and of his seeing his wife so unnecessarily assaulted in his presence." It will be observed that Terry, in his petition, contradicts the facts recited in the orders for the commitment of himself and his wife. These orders were made by Justice Field. Circuit Judge Sawyer, and District Judge Sabin from the district of Nevada, who did not depend upon the testimony of others for information as to the facts in the case, but were, themselves, eye-witnesses and spoke from personal observation and absolute knowledge. In passing upon Terry's petition, these judges, speaking through Justice Field, who delivered the opinion of the court, bore testimony to a more particular account of the conduct of Terry and his wife than had been given in the order for the commitment. As the scene has already been described at length, this portion of the opinion of the court would be a mere repetition, and is therefore omitted. After reciting the facts, Justice Field referred to the gravity of Terry's offense in the following terms: "The misbehavior of the defendant, David S. Terry, in the presence of the court, in the court-room, and in the corridor, which was near thereto, and in one of which (and it matters not which) he drew his bowie-knife, and brandished it with threats against the deputy of the marshal and others aiding him, is sufficient of itself to justify the punishment imposed. But, great as this offense was, the forcible resistance offered to the marshal in his attempt to execute the order of the court, and beating him, was a far greater and more serious affair. The resistance and beating was the highest possible indignity to the Government. When the flag of the country is fired upon and insulted, it is not the injury to the bunting, the linen, or silk on which the stars and stripes are stamped which startles and arouses the country. It is the indignity and insult to the emblem of the nation's majesty which stirs every heart, and makes every patriot eager to resent them. So, the forcible resistance to an officer of the United States in the execution of the process, orders, and judgments of their courts is in like manner an indignity and insult to the power and authority of the Government which can neither be overlooked nor extenuated." After reviewing Terry's statement, Justice Field said: "We have read this petition with great surprise at its omissions and misstatements. As to what occurred under our immediate observation, its statements do not accord with the facts as we saw them; as to what occurred at the further end of the room and in the corridor, its statements are directly opposed to the concurring accounts of the officers of the court and parties present, whose position was such as to preclude error in their observations. According to the sworn statement of the marshal, which accords with our own observations, so far from having struck or assaulted Terry, he had not even laid his hands upon him when the violent blow in the face was received. And it is clearly beyond controversy that Terry never voluntarily surrendered his bowie-knife, and that it was wrenched from him only after a violent struggle. "We can only account for his misstatement of facts as they were seen by several witnesses, by supposing that he was in such a rage at the time that he lost command of himself, and does not well remember what he then did, or what he then said. Some judgment as to the weight this statement should receive, independently of the incontrovertible facts at variance with it, may be formed from his speaking of the deadly bowie-knife he drew as 'a small sheath-knife,' and of the shameless language and conduct of his wife as 'her acts of indiscretion.' "No one can believe that he thrust his hand under his vest where his bowie-knife was carried without intending to draw it. To believe that he placed his right hand there for any other purpose--such as to rest it after the violent fatigue of the blow in the marshal's face or to smooth down his ruffled linen--would be childish credulity. "But even his own statement admits the assaulting of the marshal, who was endeavoring to enforce the order of the court, and his subsequently drawing a knife to force his way into the room where the marshal had removed his wife. Yet he offers no apology for his conduct; expresses no regret for what he did, and makes no reference to his violent and vituperative language against the judges and officers of the court, while under arrest, which is detailed in the affidavits filed." In refusing to grant the petition the court said: "There is nothing in his petition which would justify any remission of the imprisonment. The law imputes an attempt to accomplish the natural result of one's acts, and when these acts are of a criminal nature it will not accept, against such implication, the denial of the transgressor. No one would be safe if the denial of a wrongful or criminal act would suffice to release the violator of the law from the punishment due his offenses." On September 17, 1888, after the announcement of the opinion of the court by Mr. Justice Field denying the petition of D.S. Terry for a revocation of the order committing him for contempt, Mr. Terry made public a correspondence between himself and Judge Solomon Heydenfeldt, which explains itself, and is as follows: "MY DEAR TERRY: "The papers which our friend Stanley sends you will explain what we are trying to do. I wish to see Field to-morrow and sound his disposition, and if it seems advisable I will present our petition. But in order to be effective, and perhaps successful, I wish to feel assured and be able to give the assurance that failure to agree will not be followed by any attempt on your part to break the peace either by action or demonstration. I know that you would never compromise me in any such manner, but it will give me the power to make an emphatic assertion to that effect and that ought to help. "Please answer promptly. "S. HEYDENFELDT." The reply of Judge Terry is as follows: "DEAR HEYDENFELDT: "Your letter was handed me last evening. I do not expect a favorable result from any application to the Circuit Court, and I have very reluctantly consented that an application be made to Judge Field, who will probably wish to pay me for my refusal to aid his presidential aspirations four years ago. I had a conversation with Garber on Saturday last in which I told him if I was released I would seek no personal satisfaction for what had passed. You may say as emphatically as you wish that I do not contemplate breaking the peace, and that, so far from seeking, I will avoid meeting any of the parties concerned. I will not promise that I will refrain from denouncing the decision or its authors. I believe that the decision was purchased and paid for with coin from the Sharon estate, and I would stay here for ten years before I would say that I did not so believe. If the judges of the Circuit Court would do what is right they would revoke the order imprisoning my wife. She certainly was in contempt of court, but that great provocation was given by going outside the record to smirch her character ought to be taken into consideration in mitigation of the sentence. Field, when a legislator, thought that no court should be allowed to punish for contempt by imprisonment for a longer period than five days. My wife has already been in prison double that time for words spoken under very great provocation. No matter what the result, I propose to stay here until my wife is dismissed. "Yours truly, "D.S. TERRY." In the opinion of the court, referred to in the foregoing letter as "smirching the character" of Mrs. Terry, there was nothing said reflecting upon her, except what was contained in quotations from the opinion of Judge Sullivan of the State court in the divorce case of Sharon vs. Hill in her favor. These quotations commenced at page 58 of the pamphlet copy of Justice Field's opinion, when less than three pages remained to be read. It was at page 29 of the pamphlet that Justice Field was reading when Mrs. Terry interrupted him and was removed from the court-room. After her removal he resumed the reading of the opinion, and only after reading 29 pages, occupying nearly an hour, did he reach the quotations in which Judge Sullivan expressed his own opinion that Mrs. Terry had committed perjury several times in his court. The reading of them could not possibly have furnished her any provocation for her conduct. She had then been removed from the court-room more than an hour. Besides, if they "smirched" her character, why did she submit to them complacently when they were originally uttered from the bench by Judge Sullivan in his opinion rendered in her favor? Justice Field, in what he was reading that so incensed Mrs. Terry, was simply stating the effect of a decree previously rendered in a case, in the trial of which he had taken no part. He was stating the law as to the rights established by that decree. The efforts then made by Terry, and subsequently by his friends and counsel, to make it appear that his assault upon the marshal and defiance of the court were caused by his righteous indignation at assaults made by Judge Field upon his wife's character were puerile, because based on a falsehood. The best proof of this is the opinion itself. Judge Terry next applied to the Supreme Court of the United States for a writ of habeas corpus. In that application he declared that on the 12th day of September, 1888, he addressed to the Circuit Court a petition duly verified by his oath, and then stated the petition for release above quoted. Yet in a communication published in the _San Francisco Examiner_ of October 22d he solemnly declared that this very petition was not filed by any one on his behalf. After full argument by the Supreme Court the writ was denied, November 12, 1888, by an unanimous court, Justice Field, of course, not sitting in the case. Justice Harlan delivered the opinion of the Court. CHAPTER X. PRESIDENT CLEVELAND REFUSES TO PARDON TERRY--FALSE STATEMENTS OF TERRY REFUTED. Before the petition for habeas corpus was presented to the Supreme Court of the United States, Judge Terry's friends made a strenuous effort to secure his pardon from President Cleveland. The President declined to interfere. In his efforts in that direction Judge Terry made gross misrepresentations as to Judge Field's relations with himself, which were fully refuted by Judge Heydenfeldt, the very witness he had invoked. Judge Heydenfeldt had been an associate of Judge Terry on the State supreme bench. These representations and their refutation are here given as a necessary element in this narrative. Five days after he had been imprisoned, to wit, September 8, Terry wrote a letter to his friend Zachariah Montgomery at Washington, then Assistant Attorney-General for the Interior Department under the Cleveland Administration, in which he asked his aid to obtain a pardon from the President. Knowing that it would be useless to ask this upon the record of his conduct as shown by the order for his commitment, he resorted to the desperate expedient of endeavoring to overcome that record by putting his own oath to a false statement of the facts, against the statement of the three judges, made on their own knowledge, as eye-witnesses, and supported by the affidavits of court officers, lawyers, and spectators. To Montgomery he wrote: "I have made a plain statement of the facts which occurred in the court, and upon that propose to ask the intervention of the President, and I request you to see the President; tell him all you know of me, and what degree of credit should be given to a statement by me upon my own knowledge of the facts. When you read the statement I have made you will be satisfied that the statement in the order of the court is false." He then proceeded to tell his story as he told it in his petition to the Circuit Court. His false representations as to the assault he made upon the marshal, and as to his alleged provocation therefor, were puerile in the extreme. He stood alone in his declaration that the marshal first assaulted him, while the three judges and a dozen witnesses declared the very opposite. His denial that he had assaulted the marshal with a deadly weapon was contradicted by the judges and others, who said that they saw him attempt to draw a knife in the court-room, which attempt, followed up as it was continually until successful, constituted an assault with that weapon. To call his bowie-knife "a small sheath-knife," and the outrageous conduct of his wife "acts of indiscretion;" to pretend that he lost his temper because he was assaulted "while making an honest effort to peaceably and quietly enforce the order of the court," and finally to pretend that his wife had been "unnecessarily assaulted" in his presence, was all not only false, but simply absurd and ridiculous. He said: "I don't want to stay in prison six months for an offense of which I am not guilty. There is no way left except to appeal to the President. The record of a court imports absolute verity, so I am not allowed to show that the record of the Circuit Court is absolutely false. If you can help me in this matter you will confer on me the greatest possible favor." He told Montgomery that it had been suggested to him that one reason for Field's conduct was his refusal to support the latter's aspirations for the Presidency. In this connection he made the following statement: "In March, 1884, I received a note from my friend Judge Heydenfeldt, saying that he wished to see me on important business, and asking me to call at his office. I did so, and he informed me that he had received a letter from Judge Field, who was confident that if he could get the vote of California in the Democratic National Convention, which would assemble that year, he would be nominated for President and would be elected as, with the influence of his family and their connection, that he would certainly carry New York; that Judge Field further said that a Congressman from California and other of his friends had said that if I would aid him, I could give him the California delegation; that he understood I wanted official recognition as, because of my duel years ago, I was under a cloud; that if I would aid him, I should have anything I desired." It will be observed that he here positively states that Judge Heydenfeldt told him he had received a letter from Judge Field, asking Terry's aid and promising, for it, a reward. Judge Heydenfeldt, in a letter dated August 21, 1889, to the _San Francisco Examiner_, branded Terry's assertion as false. The letter to the _Examiner_ is as follows: "The statement made in to-day's _Examiner_ in reference to the alleged letter from Justice Field to me, derived, as is stated by Mr. Ashe, from a conversation with Judge Terry, is utterly devoid of truth. "I had at one time, many years ago, a letter from Justice Field, in which he stated that he was going to devote his leisure to preparing for circulation among his friends his reminiscences, and, referring to those of early California times, he requested me to obtain from Judge Terry his, Terry's, version of the Terry-Broderick duel, in order that his account of it might be accurate. As soon as I received this letter, I wrote to Judge Terry, informing him of Judge Field's wishes, and recommending him to comply, as coming, as the account would, from friendly hands, it would put him correct upon the record, and would be in a form which would endure as long as necessary for his reputation on that subject. "I received no answer from Judge Terry, but meeting him, some weeks after, on the street in this city, he excused himself, saying that he had been very busy, and adding that it was unnecessary for him to furnish a version of the duel, as the published and accepted version was correct. "The letter to me from Justice Field above referred to is the only letter from Justice Field to me in which Judge Terry's name was ever mentioned, and, with the exception of the above-mentioned street conversation, Judge Field was never the subject of conversation between Judge Terry and myself, from the time I left the bench, on the 1st of January, 1857, up to the time of Terry's death. "As to the statement that during Terry's trouble with the Sharon case, I offered Terry the use of Field's letter, it results from what I have above stated--that it is a vile falsehood, whoever may be responsible for it. "I had no such letter, and consequently could have made no such offer. "San Francisco, August 21, 1889. "S. HEYDENFELDT." Judge Heydenfeldt subsequently addressed the following letter to Judge Field: "SAN FRANCISCO, _August 31, 1889_. "MY DEAR JUDGE: I received yours of yesterday with the extract from the Washington _Post_ of the 22d inst., containing a copy of a letter from the late Judge Terry to the Hon. Zack Montgomery. "The statement in that letter of a conversation between Terry and myself in reference to you is untrue. The only conversation Terry and I ever had in relation to you was, as heretofore stated, in regard to a request from you to me to get from Terry his version of the Terry-Broderick duel, to be used in your intended reminiscences. "I do not see how Terry could have made such an erroneous statement, unless, possibly, he deemed that application as an advance made by you towards obtaining his political friendship, and upon that built up a theory, which he moulded into the fancy written by him in the Montgomery letter. "In all of our correspondence, kept up from time to time since your first removal to Washington down to the present, no letter of yours contained a request to obtain the political support of any one. "I remain, dear Judge, very truly yours, "S. HEYDENFELDT. "Hon. STEPHEN J. FIELD, "Palace Hotel, San Francisco." At the hearing of the Neagle case, Justice Field was asked if he had been informed of any statements made by Judge Terry of ill feeling existing between them before the latter's imprisonment for contempt. He replied: "Yes, sir. Since that time I have seen a letter purporting to come from Terry to Zack Montgomery, published in Washington, in which he ascribed my action to personal hostility, because he had not supported me in some political aspiration. There is not one particle of truth in that statement. It is a pure invention. In support of his statement he referred to a letter received or an interview had with Judge Heydenfeldt. There is not the slightest foundation for it, and I cannot understand it, except that the man seems to me to have been all changed in the last few years, and he did not hesitate to assert that the official actions of others were governed by improper considerations. I saw charges made by him against judges of the State courts; that they had been corrupt in their decisions against him; that they had been bought. That was the common assertion made by him when decisions were rendered against him." He then referred to the above letters of Judge Heydenfeldt, declaring Terry's assertion to be false. It should be borne in mind that Terry's letter to Montgomery was written September 8th. It directly contradicts what he had said to ex-Congressman Wigginton on the 5th or 6th of the same month. To that gentleman he declared that he knew of no "old grudge or little difference" between himself and Judge Field. He said he had declined to support the latter for the Presidency, and added: "That may have caused some alienation, but I do not know that Judge Field knew that." In his insane rage Terry did not realize how absurd it was to expect people to believe that Judge Sawyer and Judge Sabin, both Republicans, had participated in putting him in jail, to punish him for not having supported Justice Field for the Presidency in a National Democratic Convention years before. Perhaps Terry thought his reference to the fact that Judge Field's name had been previously used in Democratic Conventions, in connection with the Presidency, might have some effect upon President Cleveland's mind. This letter was not forwarded to Zachariah Montgomery until a week after it was written. He then stated in a postscript that he had delayed sending it upon the advice of his attorneys pending the application to the Circuit Court for his release. Again he charged that the judges had made a false record against him, and that evidence would be presented to the President to show it. Terry and his friends brought all the pressure to bear that they could command, but the President refused his petition for a pardon, and, as already shown, the Supreme Court unanimously decided that his imprisonment for contempt had been lawfully ordered. He was therefore obliged to serve out his time. Mrs. Terry served her thirty days in jail, and was released on the 3d of October. There is a federal statute that provides for the reduction of a term of imprisonment of criminals for good behavior. Judge Terry sought to have this statute applied in his case, but without success. The Circuit Court held that the law relates to state penitentiaries, and not to jails, and that the system of credits could not be applied to prisoners in jail. Besides this, the credits in any case are counted by the year, and not by days or months. The law specifies that prisoners in state prisons are entitled to so many months' time for the first year, and so many for each subsequent year. As Terry's sentence ran for six months, the court said the law could not apply. He consequently remained in jail until the 3d of March, 1889. CHAPTER XI. TERRY'S CONTINUED THREATS TO KILL JUSTICE FIELD--RETURN OF THE LATTER TO CALIFORNIA IN 1889. Justice Field left California for Washington in September, 1888, a few days after the denial of Terry's petition to the Circuit Court for a release. The threats against his life and that of Judge Sawyer so boldly made by the Terrys were as well known as the newspaper press could make them. In addition to this source of information, reports came from many other directions, telling of the rage of the Terrys and their murderous intentions. From October, 1888, till his departure for California, in June following, 1889, his mail almost every day contained reports of what they were saying, and the warnings and entreaties of his friends against his return to that State. These threats came to the knowledge of the Attorney-General of the United States, who gave directions to the marshal of the northern district of California to see to it that Justice Field and Judge Sawyer should be protected from personal violence at the hands of these parties. Justice Field made but one answer to all who advised against his going to hold court in California in 1889, and that was, "I cannot and will not allow threats of personal violence to deter me from the regular performance of my judicial duties at the times and places fixed by law. As a judge of the highest court of the country, I should be ashamed to look any man in the face if I allowed a ruffian, by threats against my person, to keep me from holding the regular courts in my circuit." Terry's murderous intentions became a matter of public notoriety, and members of Congress and Senators from the Pacific Coast, in interviews with the Attorney-General, confirmed the information derived by him from other sources of the peril to which the United States judges in California were subjected. He, in consequence, addressed the following letter on the subject to Marshal Franks: "DEPARTMENT OF JUSTICE, "WASHINGTON, _April 27, 1889_. "JOHN C. FRANKS, "_United States Marshal, San Francisco, Cal._ "SIR: The proceedings which have heretofore been had in the case of Mr. and Mrs. Terry in your United States Circuit Court have become matter of public notoriety, and I deem it my duty to call your attention to the propriety of exercising unusual precaution, in case further proceedings shall be had in that case, for the protection of His Honor Justice Field, or whoever may be called upon to hear and determine the matter. Of course, I do not know what may be the feelings or purpose of Mr. and Mrs. Terry in the premises, but many things which have happened indicate that violence on their part is not impossible. It is due to the dignity and independence of the court and the character of its judges that no effort on the part of the Government shall be spared to make them feel entirely safe and free from anxiety in the discharge of their high duties. "You will understand, of course, that this letter is not for the public, but to put you upon your guard. It will be proper for you to show it to the District Attorney if deemed best. "Yours truly, "W.H.H. MILLER, "_Attorney-General_." A month later the Attorney-General authorized the employment of special deputies for the purpose named in the foregoing letter. CHAPTER XII. FURTHER PROCEEDINGS IN THE STATE COURT.--JUDGE SULLIVAN'S DECISION REVERSED. Mrs. Terry did not wait for the release of her husband from jail before renewing the battle. On the 22d of January, 1889, she gave notice of a motion in the Superior Court for the appointment of a receiver who should take charge of the Sharon estate, which she alleged was being squandered to the injury of her interest therein acquired under the judgment of Judge Sullivan. On the 29th of January an injunction was issued by the United States Circuit Court commanding her and all others to desist from this proceeding. The Terrys seemed to feel confident that this would bring on a final trial of strength between the federal and state courts, and that the state court would prevail in enforcing its judgment and orders. The motion for a receiver was submitted after full argument, and on the 3d of June following Judge Sullivan rendered a decision asserting the jurisdiction of his court to entertain the motion for a receiver, and declaring the decree of the United States Circuit Court inoperative. In his opinion Judge Sullivan reviewed the opinion of Justice Field in the revivor suit, taking issue therewith. As that decision had been affirmed by the Supreme Court of the United States nearly a month before, to wit, on the 13th of May, 1889, it was rather late for such a discussion. Having thus decided, however, that the motion for a receiver could be made, he set the hearing of the same for July 15, 1889. On the 27th of May, one week before the rendering of this decision by Judge Sullivan, the mandate of the United States Supreme Court had been filed in the Circuit Court at San Francisco, by which the decree of that court was affirmed. Whether a receiver would be appointed by Judge Sullivan, in the face of the decision of the Supreme Court of the United States, became now an interesting question. Terry and his lawyers affected to hold in contempt the Supreme Court decree, and seemed to think no serious attempt would be made to enforce it. Meantime, both of the Terrys had been indicted in the United States Circuit Court for the several offenses committed by them in assaulting the marshal in the court-room as hereinbefore described. These indictments were filed on the 20th of September. Dilatory motions were granted from time to time, and it was not until the 4th of June that demurrers to the indictments were filed. The summer vacation followed without any argument of these demurrers. It was during this vacation that Justice Field arrived in California, on the 20th of June. The situation then existing was as follows: The criminal proceedings against the Terrys were at a standstill, having been allowed to drag along for nine months, with no further progress than the filing of demurrers to the indictments. The appeal to the Supreme Court of the State from Judge Sullivan's order denying a new trial had been argued and submitted on the 4th of May, but no decision had been rendered. Despite the pendency of that appeal, by reason of which the judgment of the Supreme Court of the State had not yet become final, and despite the mandate of the United States Supreme Court affirming the decree in the revivor case, Judge Sullivan had, as we have already seen, set the 15th of July for the hearing of the motion of the Terrys for the appointment of a receiver to take charge of the Sharon estate. For them to proceed with this motion would be a contempt of the United States Circuit Court. The arrival of Justice Field should have instructed Judge Terry that the decree of that court could not be defied with impunity, and that the injunction issued in it against further proceedings upon the judgment in the state court would be enforced with all the power authorized by the Constitution and laws of the United States for the enforcement of judicial process. As the 15th of July approached, the lawyers who had been associated with Terry commenced discussing among themselves what would be the probable consequence to them of disobeying an injunction of the United States Circuit Court. The attorneys for the Sharon estate made known their determination to apply to that Court for the enforcement of its writ in their behalf. The Terrys' experience in resisting the authority of that court served as a warning for their attorneys. On the morning of the 15th of July Judge Terry and his wife appeared, as usual, in the Superior Court room. Two of their lawyers came in, remained a few minutes and retired. Judge Terry himself remained silent. His wife arose and addressed the court, saying that her lawyers were afraid to appear for her. She said they feared if they should make a motion in her behalf, for the appointment of a receiver, Judge Field would put them in jail; therefore, she said, she appeared for herself. She said if she got in jail she would rather have her husband outside, and this was why she made the motion herself, while he remained a spectator. The hearing was postponed for several days. Before the appointed day therefor, the Supreme Court of the State, on the 17th of July, rendered its decision, reversing the order of Judge Sullivan refusing a new trial, thereby obliterating the judgment in favor of Sarah Althea, and the previous decision of the appellate court affirming it. The court held that this previous judgment had not become the law of the case pending the appeal from the order denying a new trial. It held that where two appeals are taken in the same case, one from the judgment and the other from the order denying a new trial, the whole case must be held to be under the control of the Supreme Court until the whole is disposed of, and the case remanded for further proceedings in the court below. The court reversed its previous decision, and declared that if the statements made by Sarah Althea and by her witnesses had been true, she never had been the wife of William Sharon, for the reason that, after the date of the alleged contract of marriage, the parties held themselves out to the public as single and unmarried people, and that even according to the findings of fact by Judge Sullivan the parties had not assumed marital rights, duties, and obligations. The case was therefore remanded to the Superior Court for a new trial. On the 2d of August the demurrers to the several indictments against the Terrys came up to be heard in the United States District Court. The argument upon them concluded on the 5th. On the 7th the demurrer to one of the indictments against Sarah Althea was overruled and she entered a plea of not guilty. No decision was rendered at that time upon either of the five other indictments. On the following day, August 8th, Justice Field left San Francisco and went to Los Angeles for the purpose of holding court. CHAPTER XIII. ATTEMPTED ASSASSINATION OF JUSTICE FIELD, RESULTING IN TERRY'S OWN DEATH AT THE HANDS OF A DEPUTY UNITED STATES MARSHAL. In view of what was so soon to occur, it is important to understand the condition of mind into which Judge Terry and his wife had now wrought themselves. They had been married about two years and a half. In their desperate struggle for a share of a rich man's estate they had made themselves the terror of the community. Armed at all times and ready for mortal combat with whoever opposed their claims, they seemed, up to the 17th of July, to have won their way in the State courts by intimidation. The decision of the United States Circuit Court was rendered before they were married. It proclaimed the pretended marriage agreement a forgery, and ordered it to be delivered to the clerk of the court for cancellation. Terry's marriage with Sarah Althea, twelve days after this, was a declaration of intention to resist its authority. The conduct of the pair in the Circuit Court on the 3d of September must have had some object. They may have thought to break up the session of the court for that day, and to so intimidate the judges that they would not carry out their purpose of rendering the decision; or they may have hoped that, if rendered, it would be allowed to slumber without any attempt to enforce it; or even that a rehearing might be granted, and a favorable decision forced from the court. It takes a brave man on the bench to stand firmly for his convictions in the face of such tactics as were adopted by the Terrys. The scene was expected also to have its effect upon the minds of the judges of the Supreme Court of the State, who then were yet to pass finally upon Sullivan's judgment on the appeal from the order denying a new trial. But the Terrys had not looked sufficiently at the possible consequence of their actions. They had thus far gone unresisted. As District Attorney Carey wrote to the Attorney-General: "They were unable to appreciate that an officer should perform his official duty when that duty in any way requires that his efforts be directed against them." When, therefore, Justice Field directed the removal of Mrs. Terry from the court, and when her doughty defendant and champion, confident of being able to defeat the order, found himself vanquished in the encounter, disarmed, arrested, and finally imprisoned, his rage was boundless. He had found a tribunal which cared nothing for his threats, and was able to overcome his violence. A court that would put him in the Alameda jail for six months for resisting its order would enforce all its decrees with equal certainty. From the time of the Terrys' incarceration in the Alameda county jail their threats against Justice Field became a matter of such notoriety that the drift of discussion was not so much whether they would murder the Justice, as to when and under what circumstances they would be likely to do so. There is little doubt that Terry made many threats for the express purpose of having them reach the knowledge of Judge Field at Washington, in the hope and belief that they would deter him from going to California. He probably thought that the Judge would prefer to avoid a violent conflict, and that if his absence could be assured it might result in allowing the decree of the United States Circuit Court to remain a dead letter. He told many people that Justice Field would not dare come out to the Pacific Coast. He got the idea into his mind, or pretended to, that Justice Field had put him in jail in order to be able to leave for Washington before a meeting could be had with him. Terry would of course have preferred Field's absence and a successful execution of Sullivan's judgment to his presence in the State and the enforcement of the federal decree. When the announcement was made that Justice Field had left Washington for San Francisco, public and private discussions were actively engaged in, as to where he would be likely to encounter danger. A special deputy was sent by the marshal to meet the overland train on which he was travelling, at Reno, in Nevada. The methods of Mrs. Terry defied all calculations. She was as likely to make her appearance, with her burly husband as an escort, at the State line, as she finally did at the breakfast table at Lathrop. Justice Field reached his quarters in San Francisco on the 20th of June. From that day until the 14th of August public discussion of what the Terrys would do continued. Some of the newspapers seemed bent upon provoking a conflict, and inquired with devilish mischief when Terry was going to carry out his threatened purpose. The threats of the Terrys and the rumors of their intended assault upon Justice Field were reported to him and he was advised to go armed against such assault, which would be aimed against his life. He answered: "No, sir! I will not carry arms, for when it is known that the judges of our courts are compelled to arm themselves against assaults in consequence of their judicial action it will be time to dissolve the courts, consider government a failure, and let society lapse into barbarism." As the time approached for the hearing of the motion for a receiver before Judge Sullivan, July 15th, grave apprehensions were entertained of serious trouble. Great impatience was expressed with the Supreme Court of the State for not rendering its decision upon the appeal from the order denying a new trial. It was hoped that the previous decision might be reversed, and a conflict between the two jurisdictions thus avoided. When the decision came, on the 17th of July, there seemed to be some relaxation of the great tension in the public mind. With the Supreme Court of the State, as well as the Supreme Court of the United States, squarely on the record against Mrs. Terry's pretensions to have been the wife of William Sharon, it was hoped that the long war had ended. When Justice Field left San Francisco for Los Angeles he had no apprehensions of danger, and strenuously objected to being accompanied by the deputy marshal. Some of his friends were less confident. They realized better than he did the bitterness that dwelt in the hearts of Terry and his wife, intensified as it was by the realization of the dismal fact that their last hope had expired with the decision of the Supreme Court of the State. The marshal was impressed with the danger that would attend Justice Field's journey to and from the court at Los Angeles. He went from San Francisco on the 8th of August. After holding court in Los Angeles he took the train for San Francisco August 13th, the deputy marshal occupying a section in the sleeping car directly opposite to his. Judge Terry and his wife left San Francisco for their home in Fresno the day following Justice Field's departure for Los Angeles. Fresno is a station on the Southern Pacific between Los Angeles and San Francisco. His train left Los Angeles for San Francisco at 1:30 Tuesday afternoon, August 13th. The deputy marshal got out at all the stations at which any stop was made for any length of time, to observe who got on board. Before retiring he asked the porter of the car to be sure and wake him in time for him to get dressed before they reached Fresno. At Fresno, where they arrived during the night, he got off the train and went out on the platform. Among the passengers who took the train at that station were Judge Terry and wife. He immediately returned to the sleeper and informed Justice Field, who had been awakened by the stopping of the train, that Terry and his wife had got on the train. He replied: "Very well. I hope that they will have a good sleep." Neagle slept no more that night. The train reached Merced, an intervening station between Fresno and Lathrop, at 5:30 that morning. Neagle there conferred with the conductor, on the platform, and referred to the threats so often made by the Terrys. He told him that Justice Field was on the train, and that he was accompanying him. He requested him to telegraph to Lathrop, to the constable usually in attendance there, to be at hand, and that if any trouble occurred he would assist in preventing violence. Justice Field got up before the train reached Lathrop, and told the deputy marshal that he was going to take his breakfast in the dining-room at that place. The following is his statement of what took place: "He said to me, 'Judge, you can get a good breakfast at the buffet on board.' I did not think at the time what he was driving at, though I am now satisfied that he wanted me to take breakfast on the car and not get off. I said I prefer to have my breakfast at this station. I think I said I had come down from the Yosemite Valley a few days before, and got a good breakfast there, and was going there for that purpose. "He replied: 'I will go with you.' We were among the first to get off from the train." As soon as the train arrived, Justice Field, leaning on the arm of Neagle, because of his lameness, proceeded to the dining-room, where they took seats for breakfast. There were in this dining-room fifteen tables, each one of which was ten feet long and four feet wide. They were arranged in three rows of five each, the tables running lengthwise with each other, with spaces between them of four feet. The aisles between the two rows were about seven feet apart, the rows running north and south. Justice Field and Neagle were seated on the west side of the middle table in the middle row, the Justice being nearer the lower corner of the table, and Neagle at his left. Very soon after--Justice Field says "a few minutes," while Neagle says "it may be a minute or so"--Judge Terry and his wife entered the dining-room from the east. They walked up the aisle, between the east and middle rows of tables, so that Justice Field and Neagle were faced towards them. Judge Terry preceded his wife. Justice Field saw them and called Neagle's attention to them. He had already seen them. As soon as Mrs. Terry had reached a point nearly in front of Justice Field, she turned suddenly around, and scowling viciously, went in great haste out of the door at which she had come in. This was for the purpose, as it afterwards appeared, of getting her satchel with the pistol in it, which she had left in the car. Judge Terry apparently paid no attention to this movement, but proceeded to the next table above and seated himself at the upper end of it, facing the table at which Justice Field was seated. Thus there were between the two men as they sat at the tables a distance equal to two table-lengths and one space of four feet, making about twenty-four feet. Terry had been seated but a very short time--Justice Field thought it a moment or two, Neagle thought it three or four minutes--when he arose and moved down towards the door, this time walking through the aisle _behind_ Justice Field, instead of the one in front of him as before. Justice Field supposed, when he arose, that he was going out to meet his wife, as she had not returned, and went on with his breakfast; but when Terry had reached a point behind him, and a little to the right, within two or three feet of him, he halted. Justice Field was not aware of this, nor did he know that Terry had stopped, until he was struck by him a violent blow in the face from behind, followed instantaneously by another blow at the back of his head. Neagle had seen Terry stop and turn. Between this and Terry's assault there was a pause of four or five seconds. Instantaneously upon Terry's dealing a blow, Neagle leaped from his chair and interposed his diminutive form between Justice Field and the enraged and powerful man, who now sought to execute his long-announced and murderous purpose. Terry gave Justice Field no warning of his presence except a blow from behind with his right hand. As Neagle rose, he shouted: "Stop, stop, I am an officer." Judge Terry had drawn back his right arm for a third blow at Justice Field, and with clinched fist was about to strike, when his attention was thus arrested by Neagle, and looking at him he evidently recognized in him the man who had drawn the knife from his hand in the corridor before the marshal's office on the third of September of the preceding year, while he was attempting to cut his way into the marshal's office. Neagle put his right hand up as he ordered Terry to stop, when Terry carried his right hand at once to his breast, evidently to seize the knife which he had told the Alameda county jailer he "always carried." Says Neagle: "This hand came right to his breast. It went a good deal quicker than I can explain it. He continued looking at me in a desperate manner and his hand got there." The expression of Terry's face at that time was described by Neagle in these words: "The most desperate expression that I ever saw on a man's face, and I have seen a good many in my time. It meant life or death to me or him." Having thus for a moment diverted the blow aimed at Justice Field and engaged Terry himself, Neagle did not wait to be butchered with the latter's ready knife, which he was now attempting to draw, but raised his six-shooter with his left hand (he is left-handed) and holding the barrel of it with his right hand, to prevent the pistol from being knocked out of his hands, he shot twice; the first shot into Terry's body and the second at his head. Terry immediately commenced sinking very slowly. Knowing by experience that men mortally wounded have been often known to kill those with whom they were engaged in such an encounter, Neagle fired the second shot to defend himself and Justice Field against such a possibility. The following is an extract from Justice Field's testimony, commencing at the point where Judge Terry rose from his seat at the breakfast table: "I supposed, at the time, he was going out to meet his wife, as she had not returned, so I went on with my breakfast. It seems, however, that he came around back of me. I did not see him, and he struck me a violent blow in the face, followed instantaneously by another blow. Coming so immediately together, the two blows seemed like one assault. I heard 'Stop, stop,' cried by Neagle. Of course I was for a moment dazed by the blows. I turned my head around and saw that great form of Terry's with his arm raised and fist clinched to strike me. I felt that a terrific blow was coming, and his arm was descending in a curved way as though to strike the side of my temple, when I heard Neagle cry out: 'Stop, stop, I am an officer.' Instantly two shots followed. I can only explain the second shot from the fact that he did not fall instantly. I did not get up from my seat, although it is proper for me to say that a friend of mine thinks I did, but I did not. I looked around and saw Terry on the floor. I looked at him and saw that particular movement of the eyes that indicates the presence of death. Of course it was a great shock to me. It is impossible for any one to see a man in the full vigor of life, with all those faculties that constitute life instantly extinguished without being affected, and I was. I looked at him for a moment, then went around and looked at him again, and passed on. Great excitement followed. A gentleman came to me, whom I did not know, but I think it was Mr. Lidgerwood, who has been examined as a witness in this case, and said: 'What is this?' I said: 'I am a Justice of the Supreme Court of the United States. My name is Judge Field. Judge Terry threatened my life and attacked me, and the deputy marshal has shot him.' The deputy marshal was perfectly cool and collected, and stated: 'I am a deputy marshal, and I have shot him to protect the life of Judge Field.' I cannot give you the exact words, but I give them to you as near as I can remember them. A few moments afterwards the deputy marshal said to me: 'Judge, I think you had better go to the car.' I said, 'Very well.' Then this gentleman, Mr. Lidgerwood, said: 'I think you had better.' And with the two I went to the car. I asked Mr. Lidgerwood to go back and get my hat and cane, which he did. The marshal went with me, remained some time, and then left his seat in the car, and, as I thought, went back to the dining-room. (This is, however, I am told, a mistake, and that he only went to the end of the car.) He returned, and either he or some one else stated that there was great excitement; that Mrs. Terry was calling for some violent proceedings. I must say here that, dreadful as it is to take life, it was only a question of seconds whether my life or Judge Terry's life should be taken. I am firmly convinced that had the marshal delayed two seconds both he and myself would have been the victims of Terry. "In answer to a question whether he had a pistol or other weapon on the occasion of the homicide, Justice Field replied: 'No, sir. I have never had on my person or used a weapon since I went on the bench of the Supreme Court of this State, on the 13th of October, 1857, except once, when, years ago, I rode over the Sierra Nevada mountains in a buggy with General Hutchinson, and at that time I took a pistol with me for protection in the mountains. With that exception, I have not had on my person, or used, any pistol or other deadly weapon.'" Judge Terry had fallen very near the place where he first stopped, near the seat occupied by Justice Field at the table. Neagle testified that if Justice Field had had a weapon, and been active in using it, he was at such a disadvantage, seated as he was, with Terry standing over him, that he would have been unable to raise his hand in his own defense. A large number of witnesses were examined, all of whom agreed upon the main facts as above stated. Some of them distinctly heard the blows administered by Terry upon Justice Field's face and head. All testified to the loud warning given Terry by Neagle that he was an officer of the law, accompanied by his command that Terry should desist. It was all the work of a few seconds. Terry's sudden attack, the quick progress of which, from the first blow, was neither arrested nor slackened until he was disabled by the bullet from Neagle's pistol, could have been dealt with in no other way. It was evidently a question of the instant whether Terry's knife or Neagle's pistol should prevail. Says Neagle: "He never took his eyes off me after he looked at me, or I mine off him. I did not hear him say anything. The only thing was he looked like an infuriated giant to me. I believed if I waited two seconds I should have been cut to pieces. I was within four feet of him." Q. "What did the motion that Judge Terry made with his right hand indicate to you?" A. "That he would have had that knife out there within another second and a half, and trying to cut my head off." Terry, in action at such a time, from all accounts, was more like an enraged wild animal than a human being. The supreme moment had arrived to which he had been looking forward for nearly a year, when the life of the man he hated was in his hands. He had repeatedly sworn to take it. Not privately had he made these threats. With an insolence and an audacity born of lawlessness and of a belief that he could hew his way with a bowie-knife in courts as well as on the streets, he had publicly sentenced Judge Field to death as a penalty for vindicating the majesty of the law in his imprisonment for contempt. It would have been the wildest folly that can be conceived of for the murderous assault of such a man to have been met with mild persuasion, or an attempt to arrest him. As well order a hungry tiger to desist from springing at his prey, to sheathe his outstretched claws and suffer himself to be bound, as to have met Terry with anything less than the force to which he was himself appealing. Every man who knows anything of the mode of life and of quarrelling and fighting among the men of Terry's class knows full well that when they strike a blow they mean to follow it up to the death, and they mean to take no chances. The only way to prevent the execution of Terry's revengeful and openly avowed purpose was by killing him on the spot. Only a lunatic or an imbecile or an accomplice would have pursued any other course in Neagle's place than the one he pursued, always supposing he had Neagle's nerve and cool self-possession to guide him in such a crisis. While this tragedy was being enacted Mrs. Terry was absent, having returned to the car for the satchel containing her pistol. Before she returned, the shot had been fired that defeated the conspiracy between her and her husband against the life of a judge for the performance of his official duties. She returned to the hotel with her satchel in her hand just as her husband met his death. The manager of the hotel stopped her at the door she was entering, and seized her satchel. She did not relinquish it, but both struggled for its possession. A witness testified that she screamed out while so struggling: "Let me get at it; I will fix him." Many witnesses testified to her frantic endeavor to get the pistol. She called upon the crowd to hang the man that killed Judge Terry, and cried out, "Lynch Judge Field." Again and again she made frantic appeals to those present to lynch Judge Field. She tried to enter the car where he was, but was not permitted to do so. She cried out, "If I had my pistol I would fix him." The testimony subsequently taken left no room to doubt that Terry had his deadly knife in its place in his breast at the time he made the attack on Justice Field. As the crowd were all engaged in breakfasting, his movements attracted little attention, and his motion toward his breast for the knife escaped the notice of all but Neagle and one other witness. Neagle rushed between Terry and Justice Field, and the latter had not a complete view of his assailant at the moment when the blow intended for him was changed into a movement for the knife with which Judge Terry intended to dispose of the alert little man, with whom he had had a former experience, and who now stood between him and the object of his greater wrath. But the conduct of Mrs. Terry immediately after the homicide was proof enough that her husband's knife had been in readiness. The conductor of the train swore that he saw her lying over the body of her husband about a minute, and when she rose up she unbuttoned his vest and said: "You may search him; he has got no weapon on him." Not a word had been said about his having had a weapon. No one had made a movement towards searching him, as ought to have been done; but this woman, who had been to the car for her pistol and returned with it to join, if necessary, in the murderous work, had all the time and opportunity necessary for taking the knife from its resting-place under his vest, smearing one of her hands with his blood, which plainly showed where it had been and what she had been doing. Neagle could not search the body, for his whole attention was directed to the protection of Justice Field. Mrs. Terry repeated the challenge to search the body for the knife after it had been removed. This showed clearly that the idea uppermost in her mind was to then and there manufacture testimony that he had not been armed at all. Her eagerness on this subject betrayed her. Had she herself then been searched, after rising from Terry's body, the knife would doubtless have been found concealed upon her person. A number of witnesses testified to her conduct as above described. She said also: "You will find that he has no arms, for I took them from him in the car, and I said to him that I did not want him to shoot Justice Field, but I did not object to a fist bout." This reference to a fist bout was, of course, an admission that they had premeditated the assault. It was Judge Terry's knife and not a pistol that Judge Field had to fear. Terry's threats had always pointed to some gross indignity that he would put upon Justice Field, and then kill him if he resented or resisted it. One of his threats was that he would horsewhip Judge Field, and that if he resented it he would kill him. In short, his intentions seem to have been to commit an assassination in alleged self-defense. The train soon left the station for San Francisco. A constable of Lathrop had taken the train, and addressing Neagle told him that he would have to arrest him. This officer had no warrant and did not himself witness the homicide. Justice Field told him that he ought to have a warrant before making the arrest, remarking, if a man should shoot another when he was about to commit a felony, such as setting fire to your house, you would not arrest him for a murder; or if a highwayman got on the train to plunder. The officer replied very courteously by the suggestion that there would have to be an inquest. Neagle at once said, "I am ready to go," thinking it better to avoid all controversy, and being perfectly willing to answer anywhere for what he had done. Arriving at the next station (Tracy), Neagle and the officer took a buggy and went to the county jail at Stockton. Thus was a deputy marshal of the United States withdrawn from the service of his Government while engaged in a most important and as yet unfinished duty because he had with rigid faithfulness performed that duty. He was arrested by an officer who had no warrant and had not witnessed the homicide, and lodged in jail. Meanwhile a detective in San Francisco received a telegram from the sheriff of San Joaquin county to arrest Judge Field. Supposing it to be his duty to comply with this command, the detective crossed the bay to meet the train for that purpose. Marshal Franks said to him: "You shall not arrest him. You have no right to do so. It would be an outrage, and if you attempt it I will arrest you." The news of these exciting events produced an intense excitement in San Francisco. Upon his arrival at this place, under the escort of the marshal and many friends, Justice Field repaired to his quarters in the Palace Hotel. CHAPTER XIV. SARAH ALTHEA TERRY CHARGES JUSTICE FIELD AND DEPUTY MARSHAL NEAGLE WITH MURDER. The body of Judge Terry was taken from Lathrop to Stockton, accompanied by his wife, soon after his death. On that very evening Sarah Althea Terry swore to a complaint before a justice of the peace named Swain, charging Justice Field and Deputy Marshal Neagle with murder. After the investigation before the coroner Assistant District Attorney Gibson stated that the charge against Justice Field would be dismissed, as there was no evidence whatever to connect him with the killing. Mrs. Terry did not see the shooting and was not in the hotel at the time of the homicide. Having, therefore, no knowledge upon which to base her statement, her affidavit was entitled to no greater consideration than if it had stated that it was made solely upon her belief without any positive information on the subject. Only the most violent of Terry's friends favored the wanton indignity upon Justice Field, and his arrest, but they had sufficient influence with the district attorney, Mr. White, a young and inexperienced lawyer, to carry him along with them. The justice of the peace before whom Sarah Althea had laid the information issued a warrant on the following day for the arrest both of Justice Field and Neagle. From this time this magistrate and the district attorney appeared to act under orders from Mrs. Terry. The preliminary examination was set for Wednesday of the following week, during which time the district attorney stated for publication that Justice Field would have to go to jail and stay there during the six intervening days. It was obvious to all rational minds that Mrs. Terry's purpose was to use the machinery of the magistrate's court for the purpose of taking Judge Field to Stockton, where she could execute her threats of killing him or having him killed; and if she should fail to do so, or postpone it, then to have the satisfaction of placing a justice of the Supreme Court of the United States in a prisoner's cell, and hold him there for six days awaiting an examination, that being the extreme length of time that he could be so held under the statute. The district attorney was asked if he had realized the danger of bringing Justice Field to Stockton, where he might come in contact with Mrs. Terry. The officer replied: "We had intended that if Justice Field were brought here, Mrs. Terry would be placed under the care of _her friends_, and that all precautions to prevent any difficulty that was in the power of the district attorney would be taken." That was to say, Mrs. Terry would do no violence to Justice Field unless "her friends" permitted her to do so. As some of them were possessed of the same murderous feelings towards Justice Field as those named here, the whole transaction had the appearance of a conspiracy to murder him. No magistrate can lawfully issue a warrant without sufficient evidence before him to show probable cause. It was a gross abuse of power and an arbitrary and lawless act to heed the oath of this frenzied woman, who notoriously had not witnessed the shooting, and had, but a few hours before, angrily insisted upon having her own pistol returned to her that she, herself, might kill Justice Field. It was beyond belief that the magistrate believed that there was probable cause, or the slightest appearance of a cause, upon which to base the issue of the warrant. Neagle was brought into court at Stockton at 10 o'clock on the morning after the shooting, to wit, on Thursday, the 15th, and his preliminary examination set for Wednesday, the 21st. Bail could not be given prior to that examination. This examination could have proceeded at once, and a delay of six days can only be accounted for by attributing it to the malice and vindictiveness of the woman who seemed to be in charge of the proceedings. The keen disappointment of Mrs. Terry, and those who were under her influence, at Judge Terry's failure to murder Justice Field, must have been greatly soothed by the prospect of having yet another chance at the latter's life, and, in any event, of seeing him in a cell in the jail during the six days for which the examination could be delayed for that express purpose. The sheriff of San Joaquin county proceeded to San Francisco with the warrant for his arrest on Thursday evening. In company with the chief of police and Marshal Franks, he called upon Justice Field, and after a few moments' conversation it was arranged that he should present the warrant at one o'clock on the following day, at the building in which the federal courts are held. CHAPTER XV. JUSTICE FIELD'S ARREST AND PETITION FOB RELEASE ON HABEAS CORPUS. At the appointed hour Justice Field awaited the sheriff in his chambers, surrounded by friends, including judges, ex-judges, and members of the bar. As the sheriff entered Justice Field arose and pleasantly greeted him. The sheriff bore himself with dignity, and with a due sense of the extraordinary proceeding in which his duty as an officer required him to be a participant. With some agitation he said: "Justice Field, I presume you are aware of the nature of my errand." "Yes," replied the Justice, "proceed with your duty; I am ready. An officer should always do his duty." The sheriff stated to him that he had a warrant, duly executed and authenticated, and asked him if he should read it. "I will waive that, Mr. Sheriff," replied the Justice. The sheriff then handed him the warrant, which he read, folded it up and handed it back, saying pleasantly: "I recognize your authority, sir, and submit to the arrest; I am, sir, in your custody." Meanwhile a petition had been prepared to be presented to Judge Sawyer for a writ of _habeas corpus_, returnable at once before the United States court. As soon as the arrest was made the petition was signed and presented to Judge Sawyer, who ordered the writ to issue returnable forthwith. In a very few minutes U.S. Marshal Franks served the writ on the sheriff. While the proceedings looking to the issue of the writ were going on, Justice Field had seated himself, and invited the sheriff to be seated. The latter complied with the invitation, and began to say something in regard to the unpleasant duty which had devolved upon him, but Justice Field promptly replied: "Not so, not so; you are but doing your plain duty, and I mine in submitting to arrest. It is the first duty of judges to obey the law." As soon as the _habeas corpus_ writ had been served, the sheriff said he was ready to go into the court. "Let me walk with you," said Justice Field, as they arose, and took the sheriff's arm. In that way they entered the court-room. Justice Field seated himself in one of the chairs usually occupied by jurors. Time was given to the sheriff to make a formal return to the writ; and in a few minutes he formally presented it. The petition of Judge Field for the writ set forth his official character, and the duties imposed upon him by law, and alleged that he had been illegally arrested, while he was in the discharge of those duties, and that his illegal detention interfered with and prevented him from discharging them. Then followed a statement of the facts, showing the arrest and detention to be illegal. This statement embraced the principal facts connected with the contempt proceedings in 1888, and the threats then and thereafter made by the Terrys of violence upon Justice Field; the precautions taken in consequence thereof by the Department of Justice for his protection from violence at their hands, and the murderous assault made upon him, and his defense by Deputy Marshal Neagle, resulting in the death of Terry, and that he, the petitioner, in no manner defended or protected himself, and gave no directions to the deputy marshal, and that he was not armed with any weapon. The petition then states: "That under the circumstances detailed, the said Sarah Althea Terry, as your petitioner is informed and believes, and upon such information and belief alleges, falsely and maliciously swore out the warrant of arrest hereinbefore set out against your petitioner, without any further basis for the charge of murder than the facts hereinbefore detailed, and that the warrant aforesaid was issued by such justice of the peace, without any just or probable cause therefor. * * * And your petitioner further represents that the charge against him, and the warrant of arrest in the hands of said sheriff, are founded upon the sole affidavit of Mrs. Sarah Althea Terry, who was not present and did not see the shooting which caused the death of said David S. Terry." In order to show the little reliance to be placed in the oath of Mrs. Terry, the petition stated: "That in a suit brought by William Sharon, now deceased, against her before her marriage to the said Terry, it was proved and held by the Circuit Court of the United States that she had committed the forgery of the document produced in that case, and had attempted to support it by perjury and subornation of perjury, and had also been guilty of acts and conduct showing herself to be an abandoned woman, without veracity. * * * "Your petitioner further represents that the abandoned character of the said Sarah Althea Terry, and the fact that she was found guilty of perjury and forgery in the case above mentioned by the said Circuit Court, and the fact of the revengeful malice entertained toward your petitioner by said Sarah Althea Terry, are notorious in the State of California, and are notorious in the city of Stockton, and as your petitioner believes are well known to the district attorney of the said county of San Joaquin, and also to the said justice of the peace who issued the said warrant; and your petitioner further alleges that had either of the said officers taken any pains whatever to ascertain the truth in the case, he would have ascertained and known that there was not the slightest pretext or foundation for any such charge as was made, and also that the affidavit of the said Sarah Althea Terry was not entitled to the slightest consideration whatever. "Your petitioner further states that it is to him incomprehensible how any man, acting in a consideration of duty, could have listened one moment to charges from such a source, and without having sought some confirmation from disinterested witnesses; and your petitioner believes and charges that the whole object of the proceeding is to subject your petitioner to the humiliation of arrest and confinement at Stockton, where the said Sarah Althea Terry may be able, by the aid of partisans of hers, to carry out her long-continued and repeated threats of personal violence upon your petitioner, and to prevent your petitioner from discharging the duties of his office in cases pending against her in the federal court at San Francisco." The sheriff's return was as follows: "Return of sheriff of San Joaquin county, Cala., County of San Joaquin, State of California: "SHERIFF'S OFFICE. "_To the Honorable Circuit Court of the United States for the Northern District of California:_ "I hereby certify and return that before the coming to me of the hereto-annexed writ of _habeas corpus_, the said Stephen J. Field was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of Stockton township, State of California, county of San Joaquin, and by the endorsement made upon said warrant. Copy of said warrant and endorsement is annexed hereto, and made a part of this return. Nevertheless, I have the body of the said Stephen J. Field before the honorable court, as I am in the said writ commanded. "August 16, 1889. "THOMAS CUNNINGHAM, "_Sheriff, San Joaquin Co., California_." In order to give the petitioner time to traverse the return if he thought it expedient to do so, and to give him and the State time to produce witnesses, the further hearing upon the return was adjourned until the following Thursday morning, the 22d, and the petitioner was released on his recognizance with a bond fixed at $5,000. On the same day a petition on the part of Neagle was presented to Judge Sawyer asking that a writ of _habeas corpus_ issue in his behalf to Sheriff Cunningham. The petition was granted at once, and served upon the sheriff immediately after the service of the writ issued on behalf of Justice Field. Early on the morning of Saturday, August 17, Neagle was brought from Stockton by the sheriff at 4:30 A.M. District Attorney White and Mrs. Terry's lawyer, Maguire, were duly notified of this movement and were passengers on the same train. At 10:30 Sheriff Cunningham appeared in the Circuit Court with Neagle to respond to the writ. He returned that he held Neagle in custody, under a warrant issued by a justice of the peace of that county, a copy of which he produced; and also a copy of the affidavit of Sarah Althea Terry upon which the warrant was issued. A traverse to that return was then filed, presenting various grounds why the petitioner should not be held, the most important of which were that an officer of the United States, specially charged with a particular duty, that of protecting one of the justices of the Supreme Court of the United States whilst engaged in the performance of his duty, could not, for an act constituting the very performance of that duty, be taken from the further discharge of his duty and imprisoned by the State authorities, and that when an officer of the United States in the discharge of his duties is charged with an offense consisting in the performance of those duties, and is sought to be arrested, and taken from the further performance of them, he can be brought before the tribunals of the nation of which he is an officer, and the fact then inquired into. The attorney-general of the State appeared with the district attorney of San Joaquin county, and contended that the offense of which the petitioner was charged could only be inquired into before the tribunals of the State. CHAPTER XVI. JUDGE TERRY'S FUNERAL--REFUSAL OF THE SUPREME COURT OF CALIFORNIA TO ADJOURN ON THE OCCASION. The funeral of Judge Terry occurred on Friday, the 16th. An unsuccessful attempt was made for a public demonstration. The fear entertained by some that eulogies of an incendiary character would be delivered was not realized. The funeral passed off without excitement. The rector being absent, the funeral service was read by a vestryman of the church. On the day after Judge Terry's death the following proceedings occurred in the Supreme Court of the State: Late in the afternoon, just after the counsel in a certain action had concluded their argument, and before the next cause on the calendar was called, James L. Crittenden, Esq., who was accompanied by W.T. Baggett, Esq., arose to address the court. He said: "Your honors, it has become my painful and sad duty to formally announce to the court the death of a former chief justice"-- Chief Justice Beatty: "Mr. Crittenden, I think that is a matter which should be postponed until the court has had a consultation about it." The court then, without leaving the bench, held a whispered consultation. Mr. Crittenden then went on to say: "I was doing this at the request of several friends of the deceased. It has been customary for the court to take formal action prior to the funeral. In this instance, I understand the funeral is to take place to-morrow." Chief Justice Beatty: "Mr. Crittenden, the members of the court wish to consult with each other on this matter, and you had better postpone your motion of formal announcement until to-morrow morning." Mr. Crittenden and Mr. Baggett then withdrew from the court-room. On the following day, in the presence of a large assembly, including an unusually large attendance of attorneys, Mr. Crittenden renewed his motion. He said: "If the court please, I desire to renew the matter which I began to present last evening. As a friend--a personal friend--of the late Judge Terry, I should deem myself very cold, indeed, and very far from discharging the duty which is imposed upon that relation, if I did not present the matter which I propose to present to this bench this morning. I have known the gentleman to whom I have reference for over thirty years, and I desire simply now, in stating that I make this motion, to say that the friendship of so many years, and the acquaintance and intimacy existing between that gentleman and his family and myself for so long a period, require that I should at this time move this court, as a court, out of recollection for the memory of the man who presided in the Supreme Court of this State for so many years with honor, ability, character, and integrity, and, therefore, I ask this court, out of respect for his memory, to adjourn during the day on which he is to be buried, which is to-day." Chief Justice Beatty said: "I regret very much that counsel should have persisted in making this formal announcement, after the intimation from the court. Upon full consultation we thought it would be better that it should not be done. The circumstances of Judge Terry's death are notorious, and under these circumstances this court had determined that it would be better to pass this matter in silence, and not to take any action upon it; and that is the order of the court." The deceased had been a chief justice of the tribunal which, by its silence, thus emphasized its condemnation of the conduct by which he had placed himself without the pale of its respect. CHAPTER XVII. HABEAS CORPUS PROCEEDINGS IN JUSTICE FIELD'S CASE. On Thursday, August 22d, the hearing of the _habeas corpus_ case of Justice Field commenced in the United States Circuit Court, under orders from the Attorney-General, to whom a report of the whole matter had been telegraphed. The United States district attorney appeared on behalf of Justice Field. In addition to him there also appeared as counsel for Justice Field, Hon. Richard T. Mesick, Saml. M. Wilson, Esq., and W.F. Herrin, Esq. The formal return of the writ of _habeas corpus_ had been made by the sheriff of San Joaquin county on the 16th. To that return Justice Field presented a traverse, which was in the following language, and was signed and sworn to by him: "The petitioner, Stephen J. Field, traverses the return of the sheriff of San Joaquin county, State of California, made by him to the writ of _habeas corpus_ by the circuit judge on the ninth circuit, and made returnable before the Circuit Court of said circuit, and avers: "That he is a justice of the Supreme Court of the United States, allotted to the ninth judicial circuit, and is now and has been for several weeks in California, in attendance upon the Circuit Court of said circuit in the discharge of his judicial duties; and, further, that the said warrant of the justice of the peace, H.V.J. Swain, in Stockton, California, issued on the 14th day of August, 1889, under which the petitioner is held, was issued by said justice of the peace without reasonable or probable cause, upon the sole affidavit of one Sarah Althea Terry, who did not see the commission of the act which she charges to have been a murder, and who is herself a woman of abandoned character, and utterly unworthy of belief respecting any matter whatever; and, further, that the said warrant was issued in the execution of a conspiracy, as your petitioner is informed, believes, and charges, between the said Sarah Althea Terry and the district attorney, White, and the said justice of the peace, H.V.J. Swain, and one E.L. Colnon, of said Stockton, to prevent by force and intimidation your petitioner from discharging the duties of his office hereafter, and to injure him in his person on account of the lawful discharge of the duties of his office heretofore, by taking him to Stockton, where he could be subjected to indignities and humiliation, and where they might compass his death. "That the said conspiracy is a crime against the United States, under the laws thereof, and was to be executed by an abuse of the process of the State court, two of said conspirators being officers of the said county of San Joaquin, one the district attorney and the other a justice of the peace, the one to direct and the other to issue the warrant upon which your petitioner could be arrested. "And the petitioner further avers that the issue of said writ of _habeas corpus_ and the discharge of your petitioner thereunder were and are essential to defeat the execution of the said conspiracy. "And your petitioner further avers that the accusation of crime against him, upon which said warrant was issued, is a malicious and malignant falsehood, for which there is not even a pretext; that he neither advised nor had any knowledge of the intention of any one to commit the act which resulted in the death of David S. Terry, and that he has not carried or used any arm or weapon of any kind for nearly thirty years. "All of which your petitioner is ready to establish by full and competent proof. "Wherefore your petitioner prays that he may be discharged from said arrest and set at liberty. "STEPHEN J. FIELD." The facts alleged in this document were beyond dispute, and constituted an outrageous crime, and one for which the conspirators were liable to imprisonment for a term of six years, under section 5518 of the Revised Statutes of the United States. To this traverse the counsel for the sheriff filed a demurrer, on the ground that it did not appear by it that Justice Field was in custody for an act done or omitted in pursuance of any law of the United States, or of any order or process or decree of any court or judge thereof, and it did not appear that he was in custody in violation of the Constitution or any law or treaty of the United States. The case was thereupon submitted with leave to counsel to file briefs at any time before the 27th of August, to which time the further hearing was adjourned. Before that hearing the Governor of the State addressed the following communication to the attorney-general: "EXECUTIVE DEPARTMENT, "STATE OF CALIFORNIA, "SACRAMENTO, _August 21, 1889_. "Hon. A.G. JOHNSTON, "_Attorney-General, Sacramento_. "DEAR SIR: The arrest of Hon. Stephen J. Field, a justice of the Supreme Court of the United States, on the unsupported oath of a woman who, on the very day the oath was taken, and often before, threatened his life, will be a burning disgrace to the State unless disavowed. I therefore urge upon you the propriety of at once instructing the district attorney of San Joaquin county to dismiss the unwarranted proceedings against him. "The question of the jurisdiction of the state courts in the case of the deputy United States marshal, Neagle, is one for argument. The unprecedented indignity on Justice Field does not admit of argument. "Yours truly, "R.W. WATERMAN, "_Governor_." This letter of Governor Waterman rang out like an alarm bell, warning the chief law officer of the State that a subordinate of his was prostituting its judicial machinery to enable a base woman to put a gross indignity upon a justice of the Supreme Court of the United States, whom she had just publicly threatened to kill, and also to aid her in accomplishing that purpose. The wretched proceeding had already brought upon its authors indignant denunciation and merciless ridicule from every part of the Union. The attorney-general responded to the call thus made upon him by instructing the district attorney to dismiss the charge against Justice Field, because no evidence existed to sustain it. The rash young district attorney lost no time in extricating himself from the position in which the arrest of Justice Field had placed him. On the 26th of August, upon his motion, and the filing of the attorney-general's letter, the charge against Justice Field was dismissed by the justice of the peace who had issued the warrant against him. The dismissal of this charge released him from the sheriff's claim to his custody, and the _habeas corpus_ proceedings in his behalf fell to the ground. On the 27th, the day appointed for the further hearing, the sheriff announced that in compliance with the order of the magistrate he released Justice Field from custody, whereupon the case of _habeas corpus_ was dismissed. In making the order, Circuit Judge Sawyer severely animadverted on what he deemed the shameless proceeding at Stockton. He said: "We are glad that the prosecution of Mr. Justice Field has been dismissed, founded, as it was, upon the sole, reckless, and as to him manifestly false affidavit of one whose relation to the matters leading to the tragedy, and whose animosity towards the courts and judges who have found it their duty to decide against her, and especially towards Mr. Justice Field, is a part of the judicial and notorious public history of the country. "It was, under the circumstances, and upon the sole affidavit produced, especially after the coroner's inquest, so far as Mr. Justice Field is concerned, a shameless proceeding, and, as intimated by the Governor of the Commonwealth, if it had been further persevered in, would have been a lasting disgrace to the State. "While a justice of the Supreme Court of the United States, like every other citizen, is amenable to the laws, he is not likely to commit so grave an offense as murder, and should he be so unfortunate as to be unavoidably involved in any way in a homicide, he could not afford to escape, if it were in his power to do so; and when the act is so publicly performed by another, as in this instance, and is observed by so many witnesses, the officers of the law should certainly have taken some little pains to ascertain the facts before proceeding to arrest so distinguished a dignitary, and to attempt to incarcerate him in prisons with felons, or to put him in a position to be further disgraced, and perhaps assaulted by one so violent as to be publicly reported, not only then but on numerous previous occasions, to have threatened his life. "We are extremely gratified to find that, through the action of the chief magistrate, and the attorney-general, a higher officer of the law, we shall be spared the necessity of further inquiring as to the extent of the remedy afforded the distinguished petitioner, by the Constitution and laws of the United States, or of enforcing such remedies as exist, and that the stigma cast upon the State of California by this hasty and, to call it by no harsher term, ill-advised arrest will not be intensified by further prosecution." Thus ended this most remarkable attempt upon the liberty of a United States Supreme Court Justice, under color of State authority, the execution of which would again have placed his life in great peril. The grotesque feature of the performance was aptly presented by the following imaginary dialogue which appeared in an Eastern paper: Newsboy: "Man tried to kill a judge in California!" Customer: "What was done about it?" Newsboy: "Oh! They arrested the judge." The illegality of Justice Field's arrest will be perfectly evident to whoever will read sections 811, 812, and 813 of the Penal Code of California. These sections provide that no warrant can be issued by a magistrate until he has examined, on oath, the informant, taken depositions setting forth the facts tending to establish the commission of the offense and the guilt of the accused, and himself been satisfied by these depositions that there is reasonable ground that the person accused has committed the offense. None of these requirements had been met in Justice Field's case. It needs no lawyer to understand that a magistrate violates the plain letter as well as the spirit of these provisions of law when he issues a warrant without first having before him some evidence of the probable, or at least the possible, guilt of the accused. If this were otherwise, private malice could temporarily sit in judgment upon the object of its hatred, however blameless, and be rewarded for perjury by being allowed the use of our jails as places in which to satisfy its vengeance. Such a view of the law made Sarah Althea the magistrate at Stockton on the 14th of August, and Justice Swain her obsequious amanuensis. Such a view of the law would enable any convict who had just served a term in the penitentiary to treat himself to the luxury of dragging to jail the judge who sentenced him, and keeping him there without bail as long as the magistrate acting for him could be induced to delay the examination. The arrest of Justice Field was an attempt to kidnap him for a foul purpose, and if the United States circuit judge had not released him he would have been the victim of as arbitrary and tyrannical treatment as is ever meted out in Russia to the most dangerous of nihilists, to punish him for having narrowly escaped assassination by no act or effort of his own. CHAPTER XVIII. HABEAS CORPUS PROCEEDINGS IN NEAGLE'S CASE. This narrative would not be complete without a statement of the proceedings in the United States Circuit Court, and in the United States Supreme Court on appeal, in the _habeas corpus_ proceedings in the case of Neagle, the deputy marshal, whose courageous devotion to his official duties had saved the life of Justice Field at the expense of that of his would-be assassin. We have already seen that Neagle, being in the custody of the sheriff of San Joaquin county, upon a charge of murder in the shooting of Judge Terry, had presented a petition to the United States Circuit Court for a writ of _habeas corpus_ to the end that he might thereby be restored to his liberty. A writ was issued, and upon its return, August 17th, the sheriff of San Joaquin county produced Neagle and a copy of the warrant under which he held him in custody, issued by the justice of the peace of that county, and also of the affidavit of Sarah Althea Terry, upon which the warrant was granted. Neagle being desirous of traversing the return of the sheriff, further proceedings were adjourned until the 22d of the month, and in the meantime he was placed in the custody of the United States marshal for the district. On the 22d a traverse of the return was filed by him stating the particulars of the homicide with which he was charged as narrated above, and averring that he was at the time of its commission a deputy marshal of the United States for the district, acting under the orders of his superior, and under the directions of the Attorney-General of the United States in protecting the Associate Justice, whilst in the discharge of his duties, from the threatened assault and violence of Terry, who had declared that on meeting the Justice he would insult, assault, and kill him, and that the homicide with which the petitioner is charged was committed in resisting the attempted execution of these threats in the belief that Terry intended at the time to kill the Justice, and that but for such homicide he would have succeeded in his attempt. These particulars are stated with great fullness of detail. To this traverse, which was afterwards amended, but not in any material respect, a demurrer was interposed for the sheriff by the district attorney of San Joaquin county. Its material point was that it did not appear from the traverse that Neagle was in the custody of the sheriff for an act done or omitted in pursuance of any law of the United States, or any order, process, or decree of any court or judge thereof, or in violation of the Constitution or a treaty of the United States. The court then considered whether it should hear testimony as to the facts of the case, or proceed with the argument of the demurrer to the traverse. It decided to take the testimony, and to hear counsel when the whole case was before it, on the merits as well as on the question of jurisdiction. The testimony was then taken. It occupied several days, and brought out strongly the facts which have been already narrated, and need not here be repeated. When completed, the question of the jurisdiction of the Circuit Court of the United States to interfere in the matter was elaborately argued by the attorney-general of the State, and special counsel who appeared with the district attorney of San Joaquin county on behalf of the State, they contending that the offense, with which the petitioner was charged, could only be inquired into before a tribunal of the State. Mr. Carey, United States district attorney, and Messrs. Herrin, Mesick, and Wilson, special counsel, appeared on behalf of the petitioner, and contended for the jurisdiction, and for the discharge of the petitioner upon the facts of the case. They did not pretend that any person in the State, be he high or low, might not be tried by the local authorities for a crime committed against the State, but they did contend that when the alleged crime consisted in an act which was claimed to have been done in the performance of a duty devolving upon him by a law of the United States, it was within the competency of their courts to inquire, in the first instance, whether that act thus done was in the performance of a duty devolving upon him; and if it was, that the alleged offender had not committed a crime against the State, and was entitled to be discharged. Their arguments were marked by great ability and learning, and their perusal would be interesting and instructive, but space will not allow me to give even a synopsis of them. The court, in deciding the case, went into a full and elaborate consideration, not only of its jurisdiction, but of every objection on the merits presented by counsel on behalf of the State. Only a brief outline can be given. The court held that it was within the competency of the President, and of the Attorney-General as the head of the Department of Justice, representing him, to direct that measures be taken for the protection of officers of the Government whilst in the discharge of their duties, and that it was specially appropriate that such protection should be given to the justices of the Supreme Court of the United States, whilst thus engaged in their respective circuits, and in passing to and from them; that the Attorney-General, representing the President, was fully justified in giving orders to the marshal of the California district to appoint a deputy to look specially to the protection of Justices Field and Sawyer from assault and violence threatened by Terry and his wife; and that the deputy marshal, acting under instructions for their protection, was justified in any measures that were necessary for that purpose, even to taking the life of the assailant. The court recognized that the Government of the United States exercised full jurisdiction, within the sphere of its powers, over the whole territory of the country, and that when any conflict arose between the State and the General Government in the administration of their respective powers, the authority of the United States must prevail, for the Constitution declares that it and the laws of the United States in pursuance thereof "shall be the supreme law of the land, and that the judges in every State shall be bound thereby, anything in the Constitution and laws of any State to the contrary notwithstanding." The court quoted the language of the Supreme Court in Tennessee v. Davis (100 U.S. 257, 263), that "It [the General Government] can act only through its officers and agents, and they must act within the States. If, when thus acting and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the General Government is powerless to interfere at once for their protection--if their protection must be left to the action of the State court--the operations of the General Government may, at any time, be arrested at the will of one of its members. The legislation of a State may be unfriendly. It may affix penalties to acts done under the immediate direction of the National Government and in obedience to its laws. It may deny the authority conferred by those laws. The State court may administer not only the laws of the State, but equally Federal law, in such a manner as to paralyze the operations of the Government. And even if, after trial and final judgment in the State court, a case can be brought into the United States court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged Federal power arrested. We do not think such an element of weakness is to be found in the Constitution. The United States is a government with authority extending over the whole territory of the Union, acting upon the States and upon the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends, it is supreme. No State government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it." To this strong language the Circuit Court added: "The very idea of a government composed of executive, legislative, and judicial departments necessarily comprehends the power to do all things, through its appropriate officers and agents, within the scope of its general governmental purposes and powers, requisite to preserve its existence, protect it and its ministers, and give it complete efficiency in all its parts. It necessarily and inherently includes power in its executive department to enforce the laws, keep the national peace with regard to its officers while in the line of their duty, and protect by its all-powerful arm all the other departments and the officers and instrumentalities necessary to their efficiency while engaged in the discharge of their duties." In language attributed to Mr. ex-Secretary Bayard, used with reference to this very case, which we quote, not as a controlling judicial authority, but for its intrinsic, sound, common sense, "The robust and essential principle must be recognized and proclaimed, that the inherent powers of every government which is sufficient to authorize and enforce the judgment of its courts are, equally, and at all times, and in all places, sufficient to protect the individual judge who, fearlessly and conscientiously in the discharge of his duty, pronounces those judgments." In reference to the duties of the President and the powers of the Attorney-General under him, and of the latter's control of the marshals of the United States, the court observed that the duties of the President are prescribed in terse and comprehensive language in section 3 of article II of the Constitution, which declares that "he shall take care that the laws be faithfully executed;" that this gives him all the authority necessary to accomplish the purposes intended--all the authority necessarily inherent in the office, not otherwise limited, and that Congress, added the court, in pursuance of powers vested in it, has provided for seven departments, as subordinate to the President, to aid him in performing his executive functions. Section 346, R.S., provides that "there shall be at the seat of government an executive department to be known as the Department of Justice, and an Attorney-General, who shall be the head thereof." He thus has the general supervision of the executive branch of the national judiciary, and section 362 provides, as a portion of his powers and duties, that he "shall exercise general superintendence and direction over the attorneys and marshals of all the districts in the United States and the Territories as to the manner of discharging their respective duties; and the several district attorneys and marshals are required to report to the Attorney-General an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as the Attorney-General may direct." Section 788, R.S., provides that "the marshals and their deputies shall have, in each State, the same powers in executing the laws of the United States as the sheriffs and their deputies in such State may have, by law, in executing the laws thereof." By section 817 of the penal code of California the sheriff is a "peace officer," and by section 4176 of the political code he is "to preserve the peace" and "prevent and suppress breaches of the peace." The marshal is, therefore, under the provisions of the statute cited, "a peace officer," so far as keeping the peace in any matter wherein the powers of the United States are concerned, and as to such matters he has all the powers of the sheriff, as peace officer under the laws of the State. He is, in such matters, "to preserve the peace" and "prevent and suppress breaches of the peace." An assault upon or an assassination of a judge of a United States court while engaged in any matter pertaining to his official duties, on account or by reason of his judicial decisions, or action in performing his official duties, is a breach of the peace, affecting the authority and interests of the United States, and within the jurisdiction and power of the marshal or his deputies to prevent as a peace officer of the National Government. Such an assault is not merely an assault upon the person of the judge as a man; it is an assault upon the national judiciary, which he represents, and through it an assault upon the authority of the nation itself. It is, necessarily, a breach of the national peace. As a national peace officer, under the conditions indicated, it is the duty of the marshal and his deputies to prevent a breach of the national peace by an assault upon the authority of the United States, in the person of a judge of its highest court, while in the discharge of his duty. If this be not so, in the language of the Supreme Court, "Why do we have marshals at all?" What useful functions can they perform in the economy of the National Government? Section 787 of the Revised Statutes also declares that "It shall be the duty of the marshal of each district to attend the District and Circuit Courts when sitting therein, and to execute throughout the district all lawful precepts directed to him and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty." There is no more authority specifically conferred upon the marshal by this section to protect the judge from assassination in open court, without a specific order or command, than there is to protect him out of court, when on the way from one court to another in the discharge of his official duties. The marshals are in daily attendance upon the judges, and performing official duties in their chambers. Yet no statute specifically points out those duties or requires their performance. Indeed, no such places as chambers for the circuit judges or circuit justices are mentioned at all in the statutes. Yet the marshal is as clearly authorized to protect the judges there as in the court-room. All business done out of court by the judge is called chamber business. But it is not necessary to be done in what is usually called chambers. Chamber business may be done, and often is done, on the street, in the judge's own house, at the hotel where he stops, when absent from home, or it may be done in transitu, on the cars in going from one place to another within the proper jurisdiction to hold court. Mr. Justice Field could, as well, and as authoritatively, issue a temporary injunction, grant a writ of _habeas corpus_, an order to show cause, or do any other chamber business for the district in the dining-room at Lathrop, as at his chambers in San Francisco, or in the court-room. The chambers of the judge, where chambers are provided, are not an element of jurisdiction, but are a convenience to the judge, and to suitors--places where the judge at proper times can be readily found, and the business conveniently transacted. But inasmuch as the Revised Statutes of the United States (sec. 753) declare that the writ of _habeas corpus_ shall not extend to "a prisoner in jail unless where he is in custody--for an act done or omitted in pursuance of a _law_ of the United States, or of an order, process, or decree of a court or judge thereof, or in custody in violation of the Constitution or of a law or treaty of the United States," it was urged in the argument by counsel for the State that there is no statute which specifically makes it the duty of a marshal or deputy marshal to protect the judges of the United States whilst out of the court-room, travelling from one point to another in their circuits, on official business, from the violence of litigants who have become offended at the adverse decisions made by them in the performance of their judicial duties, and that such officers are not within the provisions of that section. To this the court replied that the language of the section is, "an act done in pursuance of a _law_ of the United States"--not in pursuance of a statute of the United States; and that the statutes do not present in express terms all the law of the United States; that their incidents and implications are as much a part of the law as their express provisions; and that when they prescribe duties providing for the accomplishment of certain designated objects, or confer authority in general terms, they carry with them all the powers essential to effect the ends designed. As said by Chief Justice Marshall in Osborn v. Bank of the United States (9 Wheaton, 865-866), "It is not unusual for a legislative act to involve consequences which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from State control, which is said to be so objectionable in this instance. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of duty; and yet this protection is not expressed in any act of Congress. It is incidental to, and is implied in, the several acts by which these institutions are created; and is secured to the individuals employed in them by the judicial power alone--that is, the judicial power is the instrument employed by the Government in administering this security." Upon this the Circuit Court observed: "If the officers referred to in the preceding passage are to be protected while in the line of their duty, without any special law or statute requiring such protection, the judges of the courts, the principal officers in a department of the Government second to no other, are also to be protected, and their executive subordinates--the marshals and their deputies--shielded from harm by the national laws while honestly engaged in protecting the heads of the courts from assassination."[1] To the position that the preservation of the peace of the State is devolved solely upon the officers of the State, and not in any respect upon the marshals of the United States, the court replied: This position is already answered by what has been said. But it is undoubtedly true that it was the imperative duty of the State to preserve the public peace and amply protect the life of Justice Field, _but it did not do it_, and had the United States relied upon the State to keep the peace as to him--one of the justices of the highest court--in relation to matters concerning the performance of his official duties, they would have leaned upon a broken reed. The result of the efforts to obtain an officer from the State to assist in preserving the peace and protecting him at Lathrop was anything but successful. The officer of the State at Lathrop, instead of arresting the conspirator of the contemplated murderer, the wife of the deceased, arrested the officer of the United States, assigned by the Government to the special duty of protecting the justice against the very parties, while in the actual prosecution of duties assigned to him, without warrant, thereby leaving his charge without the protection provided by the Government he was serving, at a time when such protection seemed most needed. And, besides, the use of the State police force beyond the limits of a county for the protection of Justice Field would have been impracticable, as the powers of the sheriff would have ended at its borders, and of other township and city peace officers at the boundaries of their respective townships and cities. Only a United States marshal or his deputy could have exercised these official functions throughout the judicial district, which embraces many counties. The only remedy suggested on the part of the State was to arrest the deceased and hold him to bail to keep the peace under section 706 of the Penal Code, the highest limit of the amount of bail being $5,000. But although the threats are conceded to have been publicly known in the State, no State officer took any means to provide this flimsy safeguard. And the execution of a bond in this amount to keep the peace would have had no effect in deterring the intended assailants from the, commission of the offense contemplated, when the penalties of the law would not deter them. As to the deliberation and wisdom of Neagle's conduct under the circumstances, the court, after stating the established facts, concludes as follows: "When the deceased left his seat, some thirty feet distant, walked stealthily down the passage in the rear of Justice Field and dealt the unsuspecting jurist two preliminary blows, doubtless by way of reminding him that the time for vengeance had at last come, Justice Field was already at the traditional 'wall' of the law. He was sitting quietly at a table, back to the assailant, eating his breakfast, the side opposite being occupied by other passengers, some of whom were women, similarly engaged. When, in a dazed condition, he awoke to the reality of the situation and saw the stalwart form of the deceased with arm drawn back for a final mortal blow, there was no time to get under or over the table, had the law, under any circumstances, required such an act for his justification. Neagle could not seek a 'wall' to justify his acts without abandoning his charge to certain death. When, therefore, he sprang to his feet and cried, 'Stop! I am an officer,' and saw the powerful arm of the deceased drawn back for the final deadly stroke instantly change its direction to his left breast, apparently seeking his favorite weapon, the knife, and at the same time heard the half-suppressed, disappointed growl of recognition of the man who, with the aid of half a dozen others, had finally succeeded in disarming him of his knife at the court-room a year before, the supreme moment had come, or, at least, with abundant reason he thought so, and fired the fatal shot. The testimony all concurs in showing this to be the state of facts, and the almost universal consensus of public opinion of the United States seems to justify the act. On that occasion a second, or two seconds, signified, at least, two valuable lives, and a reasonable degree of prudence would justify a shot one or two seconds too soon rather than a fraction of a second too late. Upon our minds the evidence leaves no doubt whatever that the homicide was fully justified by the circumstances. Neagle on the scene of action, facing the party making a murderous assault, knowing by personal experience his physical powers and his desperate character, and by general reputation his life-long habit of carrying arms, his readiness to use them, and his angry, murderous threats, and seeing his demoniac looks, his stealthy assault upon Justice Field from behind, and, remembering the sacred trust committed to his charge--Neagle, in these trying circumstances, was the party to determine when the supreme moment for action had come, and if he, honestly, acted with reasonable judgment and discretion, the law justifies him, even if he erred. But who will have the courage to stand up in the presence of the facts developed by the testimony in this case, and say that he fired the smallest fraction of a second too soon? "In our judgment he acted, under the trying circumstances surrounding him, in good faith and with consummate courage, judgment, and discretion. The homicide was, in our opinion, clearly justifiable in law, and in the forum of sound, practical common sense commendable. This being so, and the act having been 'done * * * in pursuance of a law of the United States,' as we have already seen, it cannot be an offense against, and he is not amenable to, the laws of the State." The petitioner was accordingly discharged from arrest. [1] NOTE.--I find the following apt illustrations of this doctrine in a journal of the day: If a military or naval officer of the United States, in the necessary suppression of a mutiny or enforcement of obedience, should wound or take the life of a subordinate, would it be contended that, if arrested for that act by the State authority, he could not be released on _habeas corpus_, because no statute expressly authorized the performance of the act? If the commander of a revenue cutter should be directed to pursue and retake a vessel which, after seizure, had escaped from the custody of the law, and the officer in the performance of that duty, and when necessary to overcome resistance, should injure or kill a member of the crew of the vessel he was ordered to recapture, and if for that act he should be arrested and accused of crime under the State authority, will any sensible person maintain that the provisions of the _habeas corpus_ act could not be invoked for his release, notwithstanding that no statute could be shown which directly authorized the act for which he was arrested? If by command of the President a company of troops were marched into this city to protect the subtreasury from threatened pillage, and in so doing life were taken, would not the act of the officer who commanded the troops be an act done in pursuance of the laws of the United States, and in the lawful exercise of its authority? Could he be imprisoned and tried before a State jury on the charge of murder, and the courts of the United States be powerless to inquire into the facts on _habeas corpus_, and to discharge him if found to have acted in the performance of his duty? Can the authority of the United States for the protection of their officers be less than their authority to protect their property? There appears to be but one rational answer to these questions. In all these cases the authority vested in the officer to suppress a mutiny, or to overtake and capture an escaped vessel, or to protect the subtreasury from threatened pillage, carries with it power to do all things necessary to accomplish the object desired, even the killing of the offending party. The law conferring the authority thus extended to the officer in these cases, is in the sense of the _habeas corpus_ act, a law of the United States to do all things necessary for the execution of that authority. CHAPTER XIX. EXPRESSIONS OF PUBLIC OPINION. This case and all the attendant circumstances--the attempted assassination of Justice Field by his former associate, Terry; the defeat of this murderous attempt by Deputy Marshal Neagle; the arrest of Justice Field and the deputy marshal upon the charge of murder, and their discharge--created very great interest throughout the United States. They were the subject of articles in all the leading journals of the country; and numerous telegrams and letters of congratulation were sent to the Justice on his escape from the murderous attempt. Satisfaction was very generally expressed at the fate which Terry met, and much praise was given to the courageous conduct of Neagle and at the bearing of Justice Field under the trying circumstances. A few of the letters received by him are here given, and citations are made from some of the periodicals, which indicated the general sentiment of the country. Letter from Hon. T.F. Bayard, ex-Secretary of State: WILMINGTON, DELAWARE, _August 18, 1889_. MY DEAR BROTHER FIELD: I was absent from home when I first saw in the newspapers an account of the infamous assault of the Terrys--husband and wife--upon you, and the prompt and courageous action of Deputy Marshal Neagle that happily frustrated the iniquitous plot against your life. Accept, my dear friend, my fervent congratulations on your escape from the designs of this madman and of the shameless creature who was his wife and accomplice. For the sake of our country and its reputation in the eyes of Christendom, I am indeed grateful that this vile stab at its judicial power, as vested in your personality, miscarried, and that by good fortune the insane malice of a disappointed suitor should have been thwarted. Your dignified courage in this tragical episode is most impressive, and, while it endears you the more to those who love you, will wring even from your foes a tribute of respect and admiration. Passing over the arguments that may be wrought out of the verbiage of our dual constitution of government, the robust and essential principle _must_ be recognized and proclaimed--that the _inherent powers_ of every government which are sufficient to authorize and enforce the judgments of its courts are equally and at all times and in all places sufficient to protect the individual judge who fearlessly and conscientiously, in the discharge of his duty, pronounces those judgments. The case, my dear friend, is not yours alone; it is equally mine and that of every other American. A principle so vital to society, to the body politic, was never more dangerously and wickedly assailed than by the assault of Terry and his wife upon you for your just and honorable performance of your duty as a magistrate. I can well comprehend the shock to which this occurrence has subjected you, and I wish I could be by your side to give you assurance orally (if any were needed) of that absolute sympathy and support to which you are so fully entitled. But these lines will perhaps suffice to make you feel the affectionate and steadfast regard I entertain for you, and which this terrible event has but increased. I cannot forbear an expression of the hope that the arguments of jurisdictional and other points which must attend the litigation and settlement of this tragedy may not be abated or warped to meet any temporary local or partisan demand. The voice of Justice can never speak in clearer or more divine accents than when heard in vindication and honor of her own faithful ministers. Ever, my dear Judge Field, Sincerely yours, T.F. BAYARD. The Hon. STEPHEN J. FIELD, _San Francisco, Cal_. Letter from Hon. E.J. Phelps, former Minister to England: BURLINGTON, VERMONT, _August 17, 1889_. MY DEAR JUDGE FIELD: Pray let me congratulate you most heartily on the Terry transaction. Nothing that has ever occurred in the administration of justice has given me more satisfaction than this prompt, righteous, and effectual vindication through an officer of the court of the sanctity of the judiciary when in the discharge of its duty. What your marshal did was exactly the right thing, at the right time, and in the right way. I shall be most happy to join in a suitable testimonial to him, if our profession will, as they ought, concur in presenting it. * * * Your own coolness and carriage in confronting this danger in the discharge of your duty must be universally admired, and will shed an additional lustre on a judicial career which was distinguished enough without it. You have escaped a great peril--acquired a fresh distinction--and vindicated most properly the dignity of your high station. I am glad to perceive that this is the general opinion. Anticipating the pleasure of seeing you in Washington next term, I am always, dear sir, Most sincerely yours, E.J. PHELPS. Letter from Hon. George F. Hoar, Senator from Massachusetts: WORCESTER, _August 16, 1889_. MY DEAR JUDGE FIELD: I think I ought to tell you, at this time, how high you stand in the confidence and reverence of all good men here, how deeply they were shocked by this outrage attempted not so much on you as on the judicial office itself, and how entirely the prompt action of the officer is approved. I hope you may long be spared to the public service. I am faithfully yours, GEO. F. HOAR. Letter from Hon. J. Proctor Knott, for many years a Member of Congress from Kentucky and Chairman of the Judiciary Committee of the House of Representatives, and afterwards Governor of Kentucky: LEBANON, KENTUCKY, _September 5, 1889_. MY DEAR JUDGE: * * * I have had it in mind to write you from the moment I first heard of your fortunate escape from the fiendish assassination with which you were so imminently threatened, but I have, since the latter part of May, been suffering from a most distressing affection of the eyes which has rendered it extremely difficult, and frequently, for days together, quite impossible to do so. Even now, though much improved, I write in great pain, but I cannot get my consent to delay it longer on any account. You are to be congratulated, my dear friend, and you know that no one could possibly do so with more genuine, heartfelt sincerity than I do myself. * * * I had been troubled, ever since I saw you had gone to your circuit, with apprehensions that you would be assassinated, or at least subjected to some gross outrage, and cannot express my admiration of the serene heroism with which you went to your post of duty, determined not to debase the dignity of your exalted position by wearing arms for your defense, notwithstanding you were fully conscious of the danger which menaced you. It didn't surprise me, however; for I knew the stuff you were made of had been tested before. But I _was_ surprised and disgusted, too, that _you_ should have been charged or even suspected of anything wrong in the matter. The magistrate who issued the warrant for your arrest may possibly have thought it his duty to do so, without looking beyond the "railing accusation" of a baffled and infuriated murderess, which all the world instinctively knew to be false, yet I suppose there is not an intelligent man, woman, or child on the continent who does not consider it an infamous and unmitigated outrage, or who is not thoroughly satisfied that the brave fellow who defended you so opportunely was legally and morally justifiable in what he did. I have not been in a condition to _think_ very coherently, much less to read anything in relation to the question of jurisdiction raised by the State authorities in the _habeas corpus_ issued in your behalf by the U.S. Circuit Court, and it may be that, from the mere newspaper's reports that have reached me, I have been unable to fully apprehend the objections which are made to the courts hearing all the facts on the trial of the writ; but it occurs to me as a plain principle of common sense that the federal government should not only have the power, but that it is necessary to its own preservation, to protect its officers from being wantonly or maliciously interfered with, hindered or obstructed in the lawful exercises of their official duties, not arbitrarily of course, but through its regularly constituted agencies, and according to the established principles of law; and where such obstruction consists in the forcible restraint of the officer's liberty, I see no reason why the federal judiciary should not inquire into it on _habeas corpus_, when it is alleged to be not only illegal but contrived for the very purpose of hindering the officer in the discharge of his official duties, and impairing the efficiency of the public service. It is true that in such an investigation a real or apparent conflict between State and federal authority may be presented, which a due regard to the respective rights of the two governments would require to be considered with the utmost caution, such caution, at least, as it is fair to presume an intelligent court would always be careful to exercise, in view of the absolute importance of maintaining as far as possible the strictest harmony between the two jurisdictions. Yet those rights are determined and by fixed legal principles, which it would be impossible for a court to apply in any case without a competent knowledge of the _facts_ upon which their application in the particular case might depend. For instance, if your court should issue a writ of _habeas corpus_ for the relief of a federal officer upon the averments in his petition that he was forcibly and illegally restrained of his liberty for the purpose of preventing him from performing his official duties, and it should appear in the return to the writ that the person detaining the prisoner was a ministerial officer of the State government authorized by its laws to execute its process, and that he held the petitioner in custody by virtue of a warrant of arrest in due form, issued by a competent magistrate, to answer for an offense against the State laws, I presume the court, in the absence of any further showing, would instantly remand the petitioner to the custody of the State authorities without regard to his official position or the nature of his public duties. But, on the other hand, suppose there should be a traverse of the return, averring that the warrant of the arrest, though apparently regular in all respects, was in truth but a fraudulent contrivance designed and employed for the sole purpose of hindering and obstructing the petitioner in the performance of his duties as an officer of the government of the United States; that the magistrate who issued it, knowingly and maliciously abused his authority for that purpose in pursuance of a conspiracy between himself and others, and not in good faith, and upon probable cause to bring the prisoner to justice for a crime against the State. How then? Here is an apparent conflict--not a _real_ one--between the rights of the government of the United States and the government of the State. The one has a right to the service of its officer, and the right to prevent his being unlawfully interfered with or obstructed in the performance of his official duties; the other has the right to administer its laws for the punishment of crime through its own tribunals; but it must be observed that the former has no right to shield one of its officers from a valid prosecution for a violation of the laws of the latter not in conflict with the Constitution and laws of the United States, nor can it be claimed that the latter has any right to suffer its laws to be prostituted, and its authority fraudulently abused, in aid of a conspiracy to defeat or obstruct the functions of the former. Such an abuse of authority is not, and cannot be in any sense, a _bona fide_ administration of State laws, but is itself a crime against them. What, then, would your court do? You would probably say: If it is true that this man is held without probable cause under a fraudulent warrant, issued in pursuance of a conspiracy to which the magistrate who issued it was a party, to give legal color to a malicious interference with his functions as a federal official, he is the victim of a double crime--a crime against the United States and a crime against the State--and it is not only our duty to vindicate his right to the free exercise of his official duties, but the right of the federal government to his services, and its right to protect him in the legal performance of the same. But if, on the other hand, he has raised a mere "false clamor"--if he is held in good faith upon a valid warrant to answer for a crime committed against the State, it is equally as obligatory upon us to uphold its authority, and maintain its right to vindicate its own laws through its own machinery. To determine between these two hypotheses we must know the _facts_. * * * The same simple reasoning, it occurs to me, applies to Mr. Neagle's case. Whether he acted in the line of his duty under the laws of the United States, as an officer of that government, is clearly a question within the jurisdiction of the federal judiciary. If he _did_, he cannot be held responsible to the State authority; if he did _not_, he should answer, if required, before its tribunals of justice. I presume no court of ordinary intelligence, State or federal, would question these obvious principles; but how _any_ court could determine whether he did or did not act in the line of his official duty under the laws of his government without a judicial inquiry into the _facts_ connected with the transaction I am unable to imagine. * * * I am, as always, Your faithful friend, J. PROCTOR KNOTT. Hon. S.J. FIELD, _Associate Justice Supreme Court U.S._ Letter from Hon. William D. Shipman, formerly U.S. District Judge for the district of Connecticut: NEW YORK, _October 20, 1889_. DEAR JUDGE: * * * * * I have attentively read Judge Sawyer's opinion in the Neagle _habeas corpus_ case, and I agree with his main conclusions. It seems to me that the whole question of jurisdiction turns on the fact whether you were, at the time the assault was made on you, engaged in the performance of your official duty. You had been to Los Angeles to hold court there and had finished that business. In going there you were performing an official duty as much as you were when you had held court there. It was then your official duty to go from Los Angeles to San Francisco and hold court there. You could not hold court at the latter place without going, and you were engaged in the line of your official duty in performing that journey for that purpose, as you were in holding the court after you got there. The idea that a judge is not performing official duty when he goes from court-house to court-house or from court-room to court-room in his own circuit seems to me to be absurd. The distance from one court-house or court-room to another is not material, and does not change or modify the act or duty of the judge. Now, Neagle was an officer of your court, charged with the duty of protecting your person while you were engaged in the performance of your official duty. _His_ duty was to see to it that you were not unlawfully prevented from performing _your_ official duty--not hindered or obstructed therein. For the State authorities to indict him for repelling the assault on you in the only way which he could do so effectually seems to me to be as unwarranted by law as it would be for them to indict him for an assault on Terry when he assisted in disarming the latter in the court-room last year. When, therefore, it was conceded on the argument that if the affair at Lathrop had taken place in the court-room during the sitting of the court, the jurisdiction of the Circuit Court would be unquestionable, it is difficult for me to see why the whole question of federal jurisdiction was not embraced in that concession. Assassinating a judge _on_ the bench would no more obstruct and defeat public justice than assassinating him on his way to the bench. In each case he is _proceeding in the line of official duty imposed on him by law and_ his official oath. The law requires him to go to court wherever the latter is held, and he is as much engaged in performing the duty thus imposed on him while he is proceeding to the place of his judicial labors as he is in performing the latter after he gets there. It would, therefore, seem to go without saying that any acts done in defense and protection of the judge in the performance of the duties of his office must pertain to the exclusive jurisdiction of the court of which he forms a part. The fact that the assault on you was avowedly made in revenge for your judicial action in a case heard by you gives a darker tinge to the deed, but, perhaps, does not change the legal character of the assault itself. That Neagle did his whole duty, and in no way exceeded it, is too plain for argument. Yours faithfully, W.D. SHIPMAN Mr. Justice FIELD. Letter from James C. Welling, president of Columbian University, Washington: HARTFORD, _August 15, 1889._ MY DEAR JUDGE: It is a relief to know that Justice, as well as the honored justice of our Supreme Judiciary, has been avenged by the pistol-shot of Neagle. The life of Terry has long since been forfeited to law, to decency, and to morals. He has already exceeded the limit assigned by holy scripture to men of his ilk. "The bloody-minded man shall not live out half his days." The mode of his death was in keeping with his life. Men who break all the laws of nature should not expect to die by the laws of nature. In all this episode you have simply worn the judicial ermine without spot or stain. You defeated a bold, bad man in his machinations, and the enmity you thereby incurred was a crown of honor. I am glad that you are to be no longer harassed by the menace of this man's violence, for such a menace is specially trying to a minister of the law. We all know that Judge Field the _man_ would not flinch from a thousand Terrys, but Judge Field the _Justice_ could hardly take in his own hands the protection of his person, where the threatened outrage sprang _entirely_ from his official acts. I wish, therefore, to congratulate you on your escape alike from the violence of Terry and from the necessity of killing him with your own hands. It was meet that you should have been defended by an executive officer of the court assailed in your person. For doubtless Terry, and the hag who was on the hunt with him, were minded to murder you. Convey my cordial felicitations to Mrs. Field, and believe me ever, my dear Mr. Justice, Your faithful friend, JAMES C. WELLING. Mr. Justice FIELD. Letter from Right Rev. B. Wistar Morris, Episcopal Bishop of Oregon: BISHOPCROFT, PORTLAND, OREGON, _August 22, 1889_. MY DEAR JUDGE FIELD: I hope a word of congratulation from your Oregon friends for your escape in the recent tragedy will not be considered an intrusion. Of course we have all been deeply interested in its history, and proud that you were found as you were, without the defenses of a bully. I will not trespass further on your time than to subscribe myself, Very truly your friend, B. WISTAR MORRIS. Mr. Justice FIELD. A copy of the following card was enclosed in this letter: AN UNARMED JUSTICE. PORTLAND OREGON, _August 19_. _To the Editor of the Oregonian_: There is one circumstance in the history of the Field and Terry tragedy that seems to me is worthy of more emphatic comment than it has yet received. I mean the fact that Judge Field had about his person no weapon of defense whatever, though he knew that this miserable villain was dogging his steps for the purpose of assaulting him, perhaps of taking his life. His brother, Mr. Cyrus W. Field, says: "It was common talk in the East here, among my brother's friends, that Terry's threats to do him bodily harm were made with the full intent to follow them up. Terry threatened openly to shoot the Justice, and we, who knew him, were convinced he would certainly do it if he ever got a chance. "I endeavored to dissuade my brother from making the trip West this year, but to no purpose, and he said, 'I have a duty to perform there, and this sort of thing can't frighten me away. I know Terry will do me harm if he gets a chance, and as I shall be in California some time, he will have chances enough. Let him take them.' "When urged to arm himself he made the same reply. He said that when it came to such a pass in this country that judges find it necessary to go armed, it will be time to close the courts themselves." This was a manly and noble reply and must recall to many minds that familiar sentiment: "He is thrice armed who has his quarrel just." With the daily and hourly knowledge that this assassin was ever upon his track, this brave judge goes about his duty and scorns to take to himself the defenses of a bully or a brigand; and in doing so, how immeasurably has he placed himself above the vile creature that sought his life, and all others who resort to deeds of violence. "They that take the sword shall perish with the sword," is a saying of wide application, and had it been so in this case; had this brave and self-possessed man been moved from his high purpose by the importunity of friends, and when slain by his enemy, had been found armed in like manner with the murderer himself, what a stain would it have been upon his name and honor? And how would our whole country have been disgraced in the eyes of the civilized world, that her highest ministers of justice must be armed as highwaymen as they go about their daily duties! Well said this undaunted servant of the state: "Then will it be time to close the courts themselves." May we not hope, Mr. Editor, that this example of one occupying this high place in our country may have some influence in staying the spirit and deeds of violence now so rife, and that they who are so ready to resort to the rifle and revolver may learn to regard them only as the instruments of the coward or the scoundrel? B. WISTAK MORRIS. The citations given below from different journals, published at the time, indicated the general opinion of the country. With rare exceptions it approved of the action of the Government, the conduct of Neagle, and the bearing of Justice Field. The _Alta California_, a leading paper in California, had, on August 15, 1889, the day following the tragedy, the following article: THE TERRY TRAGEDY. The killing of David S. Terry by the United States Marshal David Neagle yesterday was an unfortunate affair, regretted, we believe, by no one more than by Justice Field, in whose defense the fatal shot was fired. There seems, however, to be an almost undivided sentiment that the killing was justifiable. Every circumstance attending the tragedy points to the irresistible conclusion that there was a premeditated determination on the part of Terry and his wife to provoke Justice Field to an encounter, in which Terry might either find an excuse for killing the man against whom he had threatened vengeance, or in which his wife might use the pistol which she always carries, in the pretended defense of her husband. For some time past it has been feared that a meeting between Terry and Justice Field would result in bloodshed. There is now indisputable proof that Terry had made repeated threats that he would assault Justice Field the first time he met him off the bench, and that if the Judge resisted he would kill him. Viewed in the light of these threats, Terry's presence on the same train with Justice Field will hardly be regarded as accidental, and his actions in the breakfast-room at Lathrop were directly in line with the intentions he had previously expressed. Neagle's prompt and deadly use of his revolver is to be judged with due reference to the character and known disposition of the man with whom he had to deal and to his previous actions and threats. He was attending Justice Field, against the will of the latter and in spite of his protest, in obedience to an order from the Attorney-General of the United States to Marshal Franks to detail a deputy to protect the person of Justice Field from Terry's threatened violence. A slap in the face may not, under ordinary circumstances, be sufficient provocation to justify the taking of human life; but it must be remembered that there were no ordinary circumstances and that Terry was no ordinary man. Terry was a noted pistol-shot; it was known that he invariably carried arms and that he boasted of his ability to use them. If on this occasion he was unarmed, as Mrs. Terry asserts,[1] Neagle had no means of knowing that fact; on the contrary, to his mind every presumption was in favor of the belief that he carried both pistol and knife, in accordance with his usual habit. As a peace officer, even apart from the special duty which had been assigned to him, he was justified in taking the means necessary to prevent Terry from continuing his assault; but the means necessary in the case of one man may be wholly inadequate with a man bearing the reputation of David S. Terry, a man who only a few months previously had drawn a knife while resisting the lawful authority of another United States officer. It is true that if Terry was unarmed, the deputy marshal might have arrested him without taking his life or seriously endangering his own; but Terry was a man of gigantic stature, and though aged, in possession of a giant's strength; and there is no one who was acquainted with him, or has had opportunity to learn his past history, who does not know that he was a desperate man, willing to take desperate chances and to resort to desperate means when giving way to his impulses of passion, and that any person who should at such a moment attempt to stay his hand would do so at the risk of his life. Whether he had a pistol with him at that moment or not, there was every reason to believe that he was armed, and that the blow with his hand was intended only as the precursor to a more deadly blow with a weapon. At such moments little time is allowed for reflection. The officer of the law was called upon to act and to act promptly. He did so, and the life of David S. Terry was the forfeit. He fell, a victim to his own ungovernable passions, urged on to his fate by the woman who was at once his wife and his client, and perhaps further incited by sensational newspaper articles which stirred up the memory of his resentment for fancied wrongs, and taunted him with the humiliation of threats unfulfilled. The close of Judge Terry's life ends a career and an era. He had the misfortune to carry into a ripened state of society the conditions which are tolerable only where social order is not fully established. Restless under authority, and putting violence above law, he lived by the sword and has perished by it. That example which refused submission to judicial finalities was becoming offensive to California, but the incubus of physical fear was upon many who realized that the survival of frontier ways into non-frontier period was a damage to the State. But, be this as it may, the stubborn spirit that defied the law has fallen by the law. When Justice Field showed the highest judicial courage in the opening incidents of the tragedy that has now closed, the manhood of California received a distinct impetus. When the Justice, with threats made against his life, returned to the State unarmed, and resentful of protection against assault, declaring that when judges must arm to defend themselves from assault offered in reprisal of their judicial actions society must be considered dissolved, he was rendering to our institutions the final and highest possible service. The event that followed, the killing of Terry in the act of striking him the second time from behind, while he sat at table in a crowded public dining-room, was the act of the law. The Federal Department of Justice, by its chief, the Attorney-General of the United States, had ordered its officer, the United States marshal for the northern district of California, to take such means and such measures as might be necessary to protect the persons of the judges against assault by Judge Terry, in carrying out the threats that he had made. This order was from the executive arm of the Government, and it was carried out to the letter. Judge Terry took the law into his own hands and fell. Nothing can add to the lesson his fate teaches. It is established now that in California no man is above the law; that no man can affect the even poise of justice by fear. Confiding in his own strength as superior to the law, David S. Terry fell wretchedly. No more need be said. New California inscribes upon her shield, "Obedience to the law the first condition of good citizenship," and the past is closed. _The Record-Union_ of Sacramento, one of the leading papers of California, on August 15, 1889, the day following the tragedy, had the following article under the head-- KILLING OF JUDGE TERRY. In the news columns of the _Record-Union_ will be found all the essential details of the circumstances of the killing of D.S. Terry. It will be evident to the reader that they readily sap the whole case, and that there is no substantial dispute possible concerning the facts. These truths we assert, without fear of successful contradiction, establish the justifiableness of the act of the United States marshal who fired upon and killed Terry. We think there will be no dispute among sensible men that a federal circuit judge or a justice of the supreme bench, passing from one portion of the circuit to another in which either is required to open a court and hear causes, and for the purpose of fully discharging his official duties, is while en route in the discharge of an official function, and constructively his court is open to the extent that an assault upon him, because of matters pending in his court, or because of judgments he has rendered or is to render, is an assault upon the court, and his bailiff or marshal detailed to attend the court or to aid in preserving the order and dignity of the court has the same right to protect him from assault then that he would have, had the judge actually reached his court-room. But further than this, we hold that in view of the undeniable fact that the Justice had knowledge of the fact that the Terrys, man and wife, had sworn to punish him; that they had indulged in threats against him of the most pronounced character; that they had boarded a train on which it is probable they knew he had taken passage from one part of his circuit to another in his capacity as a magistrate; in view of the fact that Terry sought the first opportunity to approach and strike him, and that, too, when seated; and in view of the notorious fact that Terry always went armed--the man who shot Terry would have been justified in doing so had he not even been commissioned as an officer of the court. He warned the assailant to desist, and knowing his custom to go armed, and that he had threatened the Justice, and Terry refusing to restrain his blows, it was Neagle's duty to save life, to strike down the assailant in the most effectual manner. Men who, having the ability to prevent murder, stand by and see it committed, may well be held to accountability for criminal negligence. But in this case it is clear that murder was intended on the part of the Terrys. One of them ran for her pistol and brought it, and would have reached the other's side with it in time, had she not been detained by strong men at the door. Neagle saw this woman depart, and coupling it with the advance of Terry, knew, as a matter of course, what it meant. He had been deputed by the chief law officer of the Government--in view of previous assaults by the Terrys and their threats and display of weapons in court--to stand guard over the judges and protect them. He acted, therefore, precisely as it was proper he should do. Had he been less prompt and vigorous, all the world knows that not he but Terry would to-day be in custody, and not Terry but the venerable justice of the Supreme Court of the United States would to-day be in the coffin. These remarks have grown too extended for any elaboration of the moral of the tragedy that culminated in the killing of David S. Terry yesterday. But we cannot allow the subject to be even temporarily dismissed without calling the thought of the reader to contemplation of the essential truth that society is bound to protect the judges of the courts of the land from violence and the threats of violence; otherwise the decisions of our courts must conform to the violence threatened, and there will be an end of our judicial system, the third and most valuable factor in the scheme of representative government. Society cannot, therefore, punish, but must applaud the man who defends the courts of the people and the judges of those courts from such violence and threats of violence. For it must be apparent to even the dullest intellect that all such violence is an outrage upon the judicial conscience, and therefore involves and puts in peril the liberties of the people. The New Orleans _Times-Democrat,_ in one of its issues at this period, used the following language: The judge in America who keeps his official ermine spotless, who faithfully attends to the heavy and responsible duties of his station, deserves that the people should guard the sanctity of his person with a strength stronger than armor of steel and readier than the stroke of lance or sword. Though the judges be called to pass on tens of thousands of cases, to sentence to imprisonment or to death thousands of criminals, they should be held by the people safe from the hate and vengeance of those criminals as if they were guarded by an invulnerable shield. If Judge Field, of the Supreme Court, one of the nine highest judges under our republican government, in travelling recently over his circuit in California, had been left to the mercy of the violent man who had repeatedly threatened his life, who had proved himself ready with the deadly knife or revolver, it would have been a disgrace to American civilization; it would have been a stigma and stain upon American manhood; it would have shown that the spirit of American liberty, which exalts and pays reverence to our judiciary, had been replaced by a public apathy that marked the beginning of the decline of patriotism. Judge Field recognized this when, in being advised to arm himself in case his life was endangered, he uttered the noble words: "No, sir; I do not and will not carry arms, for when it is known that the judges of the court are compelled to arm themselves against assaults offered in consequence of their judicial action it will be time to dissolve the courts, consider the government a failure, and let society lapse into barbarism." That ringing sentence has gone to the remotest corner of the land, and everywhere it has gone it should fire the American heart with a proud resolve to protect forever the sanctity of our judiciary. Had not Neagle protected the person of Judge Field from the assault of a dangerous and violent ruffian, apparently intent on murder, by his prompt and decisive action, shooting the assailant down to his death, it is certain that other brave men would have rushed quickly to his rescue; but Neagle's marvelous quickness forestalled the need of any other's action. The person of one of the very highest American judges was preserved unharmed, while death palsied the murderous hand that had sworn to take his life. That act of Neagle's was no crime. It was a deed that any and every American should feel proud of having done. It was an act that should be applauded over the length and breadth of this great land. It should not have consigned him for one minute to prison walls. It should have lifted him high in the esteem of all the American people. When criminals turn executioners, and judges are the victims, we might as well close our courts and hoist the red flag of anarchy over their silent halls and darkened chambers. The New York _Herald_, in its issue of August 19, 1889, said: The sensation of the past week is a lesson in republicanism and a eulogium on the majesty of the law. It was not a personal controversy between Stephen J. Field and David S. Terry. It was a conflict between law and lawlessness--between a judicial officer who represented the law and a man who sought to take it into his own hands. One embodied the peaceful power of the nation, the will of the people; the other defied that power and appealed to the dagger. Justice Field's whole course shows a conception of judicial duty that lends grandeur to a republican judiciary. It is an inspiring example to the citizens and especially to the judges of the country. He was reminded of the danger of returning to California while Judge Terry and his wife were at large. His firm answer was that it was his duty to go and his would go. He was then advised to arm himself for self-defense. His reply embodies a nobility that should make it historic: "When it comes to such a pass in this country that judges of the courts find it necessary to go armed it will be time to close the courts themselves." This sentiment was not born of any insensibility to danger; Justice Field fully realized the peril himself. But above all feeling of personal concern arose a lofty sense of the duty imposed upon a justice of the nation's highest court. The officer is a representative of the law--a minister of peace. He should show by his example that the law is supreme; that all must bow to its authority; that all lawlessness must yield to it. When judges who represent the law resort to violence even in self-defense, the pistol instead of the court becomes the arbiter of controversies, and the authority of the government gives way to the power of the mob. Rather than set a precedent that might tend to such a result, that would shake popular confidence in the judiciary, that would lend any encouragement to violence, a judge, as Justice Field evidently felt, may well risk his own life for the welfare of the commonwealth. He did not even favor the proposition that a marshal be detailed to guard him. The course of the venerable Justice is an example to all who would have the law respected. It is also a lesson to all who would take the law into their own hands. Not less exemplary was his recognition of the supremacy of the law when the sheriff of San Joaquin appeared before him with a warrant of arrest on the grave charge of murder. The warrant was an outrage, but it was the duty of the officer to serve it, even on a justice of the United States Supreme Court. When the sheriff hesitated and began to apologize before discharging his painful duty, Justice Field promptly spoke out: "Officer, proceed with your duty. I am ready, and an officer should always do his duty." These are traits of judicial heroism worthy the admiration of the world. The _Albany Evening Union_, in one of its issues at this time, has the following: JUSTICE FIELD RELIES UPON THE LAW FOR HIS DEFENSE. The courage of Justice Stephen J. Field in declining to carry weapons and declaring that it is time to close the courts when judges have to arm themselves, and at the same time proceeding to do his duty on the bench when his life was threatened by a desperate man, is without parallel in the history of our judiciary. We do not mean by this that he is the only judge on the bench that would be as brave as he was under the circumstances, but every phase of the affair points to the heroism of the man. He upheld the majesty of the law in a fearless manner and at the peril of his life. He would not permit the judiciary to be lowered by any fear of the personal harm that might follow a straightforward performance of his duty. His arrest for complicity in a murder was borne by the same tranquil bravery--a supreme reliance upon a due process of law. He did not want the officer to apologize to him for doing his duty. He had imprisoned Judge Terry and his wife Sarah Althea for contempt of court. * * * The threats by Judge Terry did not even frighten him to carry weapons of self-defense. This illustration of upholding the majesty of the law is without precedent, and is worth more to the cause of justice than the entire United States army could be if called out to suppress a riotous band of law-breakers. Justice Field did what any justice should do under the circumstances, but how many judges would have displayed a like courage had they been in his place? The _New York World_, in its issue of Monday evening, August 26th, has the following article: A NEW LEAF TURNED. When Judge Field, knowing that his life was threatened, went back unarmed into the State of California and about his business there, he gave wholesome rebuke to the cowardice that prompts men to carry a pistol--a cowardice that has been too long popular on the coast. He did a priceless service to the cause of progress in his State, and added grace to his ermine when he disdained to take arms in answer to the threats of assassins. The men who have conspired to take Judge Field's life ought to need only one warning that a new day has dawned in California, and to find that warning in the doom of the bully Terry. The law will protect the ermine of its judges. The New York _World_ of August 18th treats of the arrest of Justice Field as an outrage, and speaks of it as follows: THE ARREST OF FIELD AN OUTRAGE AND AN ABSURDITY. The California magistrate who issued a warrant for Justice Field's arrest is obviously a donkey of the most precious quality. The Justice had been brutally assailed by a notorious ruffian who had publicly declared his intention to kill his enemy. Before Justice Field could even rise from his chair a neat-handed deputy United States marshal shot the ruffian. Justice Field had no more to do with the shooting than any other bystander, and even if there had been doubt on that point it was certain that a justice of the United States Supreme Court was not going to run away beyond the jurisdiction. His arrest was, therefore, as absurd as it was outrageous. It was asked for by the demented widow of the dead desperado simply as a means of subjecting the Justice to an indignity, and no magistrate possessed of even a protoplasmic possibility of common sense and character would have lent himself in that way to such a service. The Kansas City _Times_, in its issue at this period, uses the following language: NO ONE WILL CENSURE. _Gratitude for Judge field's Escape the Chief Sentiment._ Deputy Marshal Neagle acted with terrible promptitude in protecting the venerable member of the Supreme Court with whose safety he was specially charged, but few will be inclined to censure him. He had to deal with a man of fierce temper, whose readiness to use firearms was part of the best known history of California. It is a subject for general congratulation that Justice Field escaped the violence of his assailant. The American nation would be shocked to learn that a judge of its highest tribunal could not travel without danger of assault from those whom he had been compelled to offend by administering the laws. Justice Field has the respect due his office and that deeper and more significant reverence produced by his character and abilities. Since most of the present generation were old enough to observe public affairs he has been a jurist of national reputation and a sitting member of the Supreme Court. In that capacity he has earned the gratitude of his countrymen by bold and unanswerable defense of sound constitutional interpretation on more than one occasion. In all the sad affair the most prominent feeling will be that of gratitude at his escape. _The Army and Navy Journal_, in its issue of August 24, 1889, had the following article under the head of-- MARSHAL NEAGLE'S CRIME. The public mind appears to be somewhat unsettled upon the question of the right of Neagle to kill Terry while assaulting Judge Field. His justification is as clear as is the benefit of his act to a long-suffering community. Judge Field was assaulted unexpectedly from behind, while seated at a dining-table, by a notorious assassin and ruffian, who had sworn to kill him, and who, according to the testimony of at least one witness, was armed with a long knife, had sent his wife for a pistol, and was intending to use it as soon as obtained. * * * The rule is that the danger which justifies homicide in self-defense must be actual and urgent. And was it not so in this case? No one who reflects upon the features of the case--an old man without means of defense, fastened in a sitting posture by the table at which he sat and the chair he occupied, already smitten with one severe blow and about to receive another more severe from a notorious ruffian who had publicly avowed his intention to slay him--no one surely can deny that the peril threatening Judge Field was both actual and urgent in the very highest degree. "A man may repel force by force in the defense of his person, habitation, or property, against one or many who manifestly intend and endeavor by violence or surprise to commit a known felony on either." "In such a case he is not obliged to retreat, but may pursue his adversary till he find himself out of danger; and if in a conflict between them he happens to kill, such killing is justifiable. The right of self-defense in case of this kind is founded on the law of nature, and is not, nor can be, superseded by any law of society. Where a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force by force; and even his servant attendant on him, or any person present, may interpose for preventing mischief, and, if death ensue, the party interposing will be justified." (Wharton Amer. Crim. Law, Vol. 2, Sec. 1019.) This is the law, as recognized at the present day and established by centuries of precedent, and it completely exonerates Neagle--of course Judge Field needs no exoneration--from any, the least, criminality in what he did. He is acquitted of wrong-doing, not only in his character of attendant servant, but in that of bystander simply. He was as much bound to kill Terry under the circumstances as every bystander in the room was bound to kill him; and in his capacity of guard, especially appointed to defend an invaluable life against a known and imminent felony, he was so bound in a much greater degree. "A sincere and apparently well-grounded belief that a felony is about to be perpetrated will extenuate a homicide committed in prevention of it, though the defendant be but a private citizen" (25 Ala., 15.) See Wharton, above quoted, who embodies the doctrine in his text (Vol. 2, Sec. 1039). * * * * * Let us be grateful from our hearts that the old Mosaic law, "Whoso sheddeth man's blood by man shall his blood be shed," is shown by this memorable event to have not yet fallen altogether into innocuous desuetude; and let us give thanks to God that he has seen fit on this occasion to preserve from death at the hands of an intolerable ruffian the life of that high-minded, pure-handed, and excellent jurist and magistrate, Stephen J. Field. The Philadelphia _Times_ of August 15th has the following: ONLY ONE OPINION. _Marshal Neagle Could Not Stand Idly By._ The killing of Judge Terry of California is a homicide that will occasion no regret wherever the story of his stormy and wicked life is known. At the same time, the circumstances that surrounded it will be deeply lamented. This violent man, more than once a murderer, met his death while in the act of assaulting Justice Field of the Supreme Court of the United States. Had he not been killed when he was, Judge Field would probably have been another of his victims. Terry had declared his purpose of killing the Justice, and this was their first meeting since his release from deserved imprisonment. In regard to the act of United States Marshal Neagle, there can be only one opinion. He could not stand idly by and see a judge of the Suprene Court murdered before his eyes. The contumely that Terry sought to put upon the Judge was only the insult that was to go before premeditated murder. The case has no moral except the certainty that a violent life will end in a violent death. The _Philadelphia Inquirer_ of the same date says as follows: A PREMEDITATED INSULT. _Followed Quickly by a Deserved Retribution._ Ex-Judge Terry's violent death was a fitting termination to a stormy life, and the incidents of his last encounter were characteristic of the man and his methods. He was one of the few lingering representatives of the old-time population of California. He was prominent there when society was organizing itself, and succeeded in holding on to life and position when many a better man succumbed to the rude justice of the period. Most of his early associates died with their boots on, a generation ago. Terry lived, assailed on all sides, despised by the better element and opposed by the law, in trouble often, but never punished as he deserved. His last act was to offer a gross, premeditated insult to the venerable Justice Field, and the retribution he had long defied followed it quickly. California will have little reason to mourn his loss. The _Cleveland Leader_, in its issue of August 18th, speaks of the conduct of Neagle as follows: THE KILLING OF TERRY. We have already expressed the opinion in these columns that the killing of David S. Terry by Deputy Marshal Neagle at Lathrop, California, Wednesday, was entirely justifiable. In that opinion it is a pleasure to note that the press of the country concur almost unanimously. The judgment of eminent members of the legal profession, as published in our telegraph columns and elsewhere, support and bear out that view of the case. The full account of the trouble makes the necessity of some such action on the part of the deputy marshal clear. The judgment of the country is that Neagle only did his duty in defending the person of Justice Field, and in that judgment the California jury will doubtless concur when the case is brought before it. The _Argonaut_, a leading paper of San Francisco, not a political, but a literary paper, and edited with great ability, in its issue of August 26, 1889, used the following language: The course of Judge Field throughout this troublesome business has been in the highest degree creditable to him. He has acted with dignity and courage, and his conduct has been characterized by most excellent taste. His answer, when requested to go armed against the assault of Terry, is worthy of preservation. And now that his assailant has been arrested in his career by death, all honest men who respect the law will breathe more freely. Judge Terry had gained a most questionable reputation, not for courage in the right direction; not for generosity which overlooked or forgave, or forgot offenses against himself or his interests. He never conceded the right to any man to hold an opinion in opposition to his prejudices, or cross the path of his passion with impunity. He could with vulgar whisper insult the judge who rendered an opinion adverse to his client, and with profane language insult the attorney who had the misfortune to be retained by a man whose cause he did not champion. He had become a terror to society and a walking menace to the social circle in which he revolved. His death was a necessity, and, except here and there a friend of blunted moral instincts, there will be found but few to mourn his death or criticise the manner of his taking off. To say that Marshal Neagle should have acted in any other manner than he did means that he was to have left Justice Field in the claws of a tiger, and at the mercy of an infuriated, angry monster, who had never shown mercy or generosity to an enemy in his power. * * * Judge Field has survived the unhappy conflict which carried Judge Terry to his grave. He is more highly honored now than when this quarrel was thrust upon him; he has lost no friends; he has made thousands of new ones who honor him for protecting with his life the honor of the American bench, the dignity of the American law, and the credit of the American name. In the home where Judge Terry lived he went to the grave almost unattended by the friends of his social surroundings, no clergyman consenting to read the service at his burial. The Supreme Court over which he had presided as chief justice refused to adjourn in honor of his death, the press and public opinion, for a wonder, in accord over the manner of his taking off. Indeed, the public opinion of the country, as shown by the press and declarations of prominent individuals, was substantially one in its approval of the action of the Government, the conduct of Neagle, and the bearing of Justice Field.[2] The _Daily Report_, a paper of influence in San Francisco at the time, published the following article on "The Lesson of the Hour," from the pen of an eminent lawyer of California, who was in no way connected with the controversy which resulted in Judge Terry's death: The universal acquiescence of public opinion in the justifiable character of the act which terminated the life of the late David S. Terry is to be accounted for by the peculiar nature of the offense which he had committed. It was not for a mere assault, though perpetrated under circumstances which rendered it peculiarly reprehensible, that he met his death without eliciting from the community one word of condemnation for the slayer or of sympathy with the slain. Mr. Justice Field is an officer of high rank in the most important department of the Government of the United States, namely, that which is charged with the administration of legal justice. When David S. Terry publicly and ostentatiously slapped the face of this high official--this representative of public justice--the blow being in all probability the intended prelude to a still more atrocious offense, he committed a gross violation of the peace and dignity of the United States. The echo of the blow made the blood tingle in the veins of every true American, and from every quarter, far and near, thick and fast, came denunciations of the outrage. That any man under a government created "by the people, for the people" shall assume to be a law unto himself, the sole despot in a community based on the idea of the equality of all before the law, and the willing submission and obedience of all to established rule, is simply intolerable. In his audacious assault on "the powers that be" Terry took his life in his hand, and no lover of peace and good order can regret that, of the two lives in peril, his was extinguished. He threw down the gage of battle to the whole community, and it is well that he was vanquished in the strife. In the early part of the war of the rebellion General Dix, of New York, was placed in charge of one of the disaffected districts. We had then hardly begun to see that war was a very stern condition of things, and that it actually involved the necessity of killing. Those familiar with the incidents of that time will remember how the General's celebrated order, "If any one attempts to haul down the American flag, shoot him on the spot," thrilled the slow pulses of the Northern heart like the blast of a bugle. Yet some adverse obstructionist might object that the punishment pronounced far exceeded the offense, which was merely the effort to detach from its position a piece of colored bunting. But it is the _animus_ that characterizes the act. An insult offered to a mere symbol of authority becomes, under critical circumstances, an unpardonable crime. If the symbol, instead of being an inanimate object, be a human being--a high officer of the Government--does not such an outrage as that committed by Terry exceed in enormity the offense denounced by General Dix? And if so, why should the punishment be less? In every civilized community, society, acting with a keen instinct of self-preservation, has always punished with just severity those capital offenders against peace and good order who strike at the very foundation on which all government must rest. [1] It has been conclusively established since that he was armed with his usual bowie-knife at the time. [2] NOTE.--Whilst there was a general concurrence of opinion as to the threats of Terry and of the fate he met at the hands of Neagle and of the bearing of Justice Field through all the proceedings, there were exceptions to this judgment. There were persons who sympathized with Terry and his associates and grieved at his fate, although he had openly avowed his intention not merely to insult judicial officers for their judicial conduct, but to kill them in case they resented the insult offered. He married Sarah Althea Hill after the United States Circuit Court had delivered its opinion, in open court, announcing its decision that she had committed forgery, perjury, and subornation of perjury, and was a woman of abandoned character. And yet a writer in the _Overland Monthly_ in October, 1889, attributes his assault upon the marshal--striking him violently in the face for the execution of the order of the court to remove her from the court-room because of her gross imputation upon the judges--chiefly to his chivalric spirit to protect his wife, and declares that "the universal verdict" upon him "will be that he was possessed of _sterling integrity of purpose_, and stood out from the rest of his race as a strongly individualized character, which has been well called an anachronism in our civilization." And Governor Pennoyer, of Oregon, in his message to the legislature of that State, pronounced the officer appointed by the marshal under the direction of the Attorney-General to protect Justices Field and Sawyer from threatened violence and murder as a "_secret armed assassin_," who accompanied a Federal judge in California, and who shot down in cold blood an unarmed citizen of that State. CHAPTER XX. THE APPEAL TO THE SUPREME COURT OF THE UNITED STATES, AND THE SECOND TRIAL OF SARAH ALTHEA'S DIVORCE CASE. With the discharge from arrest of the brave deputy marshal, Neagle, who had stood between Justice Field and the would-be assassin's assault, and the vindication by the Circuit Court of the right of the general government to protect its officers from personal violence, for the discharge of their duties, at the hands of disappointed litigants, the public mind, which had been greatly excited by the proceedings narrated, became quieted. No apprehension was felt that there would be any reversal of the decision of the Circuit Court on the appeal which was taken to the Supreme Court. General and absolute confidence was expressed in the determination of the highest tribunal of the nation. The appeal was argued on the part of Neagle by the Attorney-General of the United States and Joseph H. Choate, Esq., of the New York bar; and the briefs of counsel in the Circuit Court were also filed. The attorney-general of California and Mr. Zachariah Montgomery appeared upon behalf of the State, and briefs of Messrs. Shellabarger and Wilson were also filed in its behalf. The argument of the Attorney-General of the United States was exceedingly able. He had watched all the proceedings of the case from the outset. He had directed that protection should be extended by the marshal to Justice Field and Judge Sawyer against any threatened violence, and he believed strongly in the doctrine that the officers of the general government were entitled to receive everywhere throughout the country full protection against all violence whilst in the discharge of their duties. He believed that such protection was necessary to the efficiency and permanency of the government; and its necessity in both respects was never more ably presented. The argument of Mr. Choate covered all the questions of law and fact in the case and was marked by that great ability and invincible logic and by that clearness and precision of statement which have rendered him one of the ablest of advocates and jurists in the country, one who all acknowledge has few peers and no superiors at the bar of the nation.[1] The argument of the attorney-general of the State consisted chiefly of a repetition of the doctrine that, for offenses committed within its limits, the State alone has jurisdiction to try the offenders--a position which within its proper limits, and when not carried to the protection of resistance to the authority of the United States, has never been questioned. The most striking feature of the argument on behalf of the State was presented by Zachariah Montgomery. It may interest the reader to observe the true Terry flavor introduced into his argument, and the manifest perversion of the facts into which it led him. He deeply sympathized with Terry in the grief and mortification which he suffered in being charged with having assaulted the marshal with a deadly weapon in the presence of the Circuit Court in September, 1888. He attempted to convince the Supreme Court that one of its members had deliberately made a misrecital, in the order committing Terry for contempt, and treated this as a mitigation of that individual's subsequent attack on Justice Field. He did not, however, attempt to gainsay the testimony of the numerous witnesses who swore that Terry did try to draw his knife while yet in the court-room on that occasion, and that, being temporarily prevented from doing so by force, he completed the act as soon as this force was withdrawn, and pursued the marshal with knife in hand, loudly declaring in the hearing of the court, in language too coarse and vulgar to be repeated, that he would do sundry terrible things to those who should obstruct him on his way to his wife. As she was then in the custody of the marshal and in his office, under an order of the court; and as Terry had resisted her arrest and removal from the court-room until overpowered by several strong men, and as he had instantly on being released rushed madly from the court-room, drawing and brandishing his knife as he went, the conclusion is irresistible that he was determined upon her rescue from the marshal, if, with the aid of his knife, he could accomplish it. That Mr. Montgomery allowed these facts, which constitute the offense of an assault with a deadly weapon, to go unchallenged, compels us to the charitable presumption that he did not know the law. A reading of the decisions on this subject would have taught him that in order to constitute that offense it is not necessary that the assailant should actually stab with his knife or shoot with his pistol. The assault by Terry was commenced in the court-room, under the eyes of the judges, and was a continuing act, ending only-with the wrenching of the knife from his hands. It was all committed "in the presence of the court," for the Supreme Court has decided in the Savin case that "the jury-room and hallway were parts of the place in which the court was required by law to hold its sessions, and that the court, at least when in session, is present in every part of the place set apart for its own use and for the use of its officers, jurors, and witnesses, and that misbehavior in such a place is misbehavior in the presence of the court. (See vol. 131, U.S. Reports, page 277, where the case is reported.) Mr. Montgomery was feckless enough to contradict the record when he stated that Justice Field in his opinion in the revivor case "took occasion to discuss at considerable length the question of the genuineness of the aforesaid marriage document, maintaining very strenuously that it was a forgery, and that this it was that so aroused the indignation of Mrs. Terry that she sprang to her feet and charged Justice Field with having been bought." There is not a word of truth in this statement. Justice Field, in overruling the demurrer, never discussed at all the genuineness of the marriage agreement. How, then, could it be true that words, nowhere to be found in Judge Field's opinion, "so aroused the indignation of Mrs. Terry that she sprang to her feet and charged Justice Field with having been bought"? Justice Field discussed only the legal effect of the decree already rendered by the United States Circuit Court. He said nothing to excite the woman's ire, except to state the necessary steps to be taken to enforce the decree. He had not participated in the trial of the original case, and had never been called upon to express any opinion concerning the agreement. Mr. Montgomery said in his brief that the opinion read by Justice Field, "while overruling a demurrer, assails this contract, in effect pronouncing it a forgery." This statement is totally unfounded. From it the casual reader would suppose that the demurrer was to the complaint in the original case, and that the court was forestalling evidence, whereas it was a demurrer in a proceeding to revive the suit, which had abated by the death of the party, and to give effect to the decree already rendered therein, after a full hearing of the testimony. Mr. Montgomery said: "The opinion also charges Mrs. Terry with perjury, after she has sworn that it was genuine." The judgment of a court may be referred to by one of its judges, even though the rendering of the judgment convicted a party or a witness, of perjury, without furnishing the perjurer with a justification for denouncing the judge. Mr. Montgomery furthermore said that the "opinion charged her not only with forgery and perjury, but with unchastity as well; for if she had not been Sharon's wife, she had unquestionably been his kept mistress." He says: "At the announcement of this decision from the bench in the presence of a crowded court-room; a decision which she well knew, before the going down of another sun, would be telegraphed to the remotest corners of the civilized world, to be printed and reprinted with sensational head-lines in every newspaper, and talked over by every scandal-monger on the face of the earth; was it any wonder--not that it was right--but was it any wonder that this high-spirited, educated woman, sprung from as respectable a family as any in the great State of Missouri, proud of her ancestry, and prizing her good name above everything on this earth, when she heard herself thus adjudged in one breath to be guilty of forgery, perjury, and unchastity, and thus degraded from the exalted position of wife--to which the Supreme Court of her State had said she was entitled--down to that of a paid harlot; was it any wonder, I say, that like an enraged tigress she sprang to her feet, and in words of indignation sought to defend her wounded honor?" Mr. Montgomery did not speak truly when he said that on this occasion such a decision was announced from the bench. The decision was announced on the 24th of December, 1885, nearly three years before. The only decision announced on this occasion was that the case did not die with the plaintiff therein--William Sharon--but that the executor of his estate had the right to act--had a right to be substituted for the deceased, and to have the decree executed just as it would have been if Mr. Sharon had lived. It was amazing effrontery and disregard of the truth on the part of Mr. Montgomery to make such a statement as he did to the Supreme Court, when the record, lying open before them, virtually contradicted what he was saying. Towards the close of the decision Justice Field did make reference to Mrs. Terry's testimony in the Superior Court. He said that in the argument some stress had been laid upon the fact that in a State court, where the judge had decided in Mrs. Terry's favor, the witnesses had been examined in open court, where their bearing could be observed by the judge; while in the federal court the testimony had been taken before an examiner, and the court had not the advantage of hearing and seeing the witnesses. In reply to this Justice Field called attention to the fact that Judge Sullivan, while rendering his decision in favor of Mrs. Terry, had accused her of having wilfully perjured herself in several instances while testifying in her own case, and of having suborned perjury, and of having knowingly offered in evidence a forged document. But this reference to Judge Sullivan's accusations against Mrs. Terry was not reached in the reading of Justice Field's opinion until nearly an hour after Mrs. Terry had been forcibly removed from the court-room for contempt, and therefore she did not hear it. This fact appears on record in the contempt proceedings. But the most extraordinary feature of Mr. Montgomery's brief is yet to be noticed. He says that "If the assault so made by Judge Terry was not for the purpose of then and there killing or seriously injuring the party assaulted, but for the purpose of provoking him into a duel, then the killing of the assailant for such an assault was a crime." And again he says: "I have said that if the purpose of Judge Terry's assault upon Field was for the purpose of killing him then and there, Neagle, and not Neagle only, but anybody else, would have been justifiable in killing Terry to save the life of Field; but that if Terry's object in assaulting Field was not then and there to kill or otherwise greatly injure him, but to draw him into a duel, then such an assault was not sufficient to justify the killing." He then proceeds to speak of Judge Terry's duel with Senator Broderick, in which the latter was killed. He refers to many eminent citizens who have fought duels, although he admits that dueling is a sin. He then explains that "as a rule the duelist who considers himself wronged by another, having the position and standing of a gentleman, tenders him an insult, either by a slap in the face or otherwise, in order to attract a challenge. Such undoubtedly was Terry's purpose in this case. All of Terry's threats point precisely to that." Here Mr. Montgomery seems to be in accord with Sarah Althea Terry, who, as we have seen, stated that "Judge Terry intended to take out his satisfaction in slaps." In the same direction is the declaration of Porter Ashe, when he said: "Instant death is a severe punishment for slapping a man on the face. I have no suspicion that Terry meant to kill Field or to do him further harm than to humiliate him." And also that of Mr. Baggett, one of Terry's counsel, who said: "I have had frequent conversations with Terry about Field, and he has often told me that Field has used his court and his power as a judge to humiliate him, and that he intended to humiliate him in return to the extent of his power. 'I will slap his face,' said Terry to me, 'if I run across him, but I shall not put myself out of the way to meet him. I do not intend to kill him, but I will insult him by slapping his face, knowing that he will not resent it.'" What knightly courage was here. If ever a new edition of the dueling code is printed, it should have for a frontispiece a cut representing the stalwart Terry dealing stealthy blows from behind upon a justice of the United States Supreme Court, 72 years of age, after having previously informed a trusted friend that he believed himself safe from any resistance by the object of his attack. It may be here also said that Justice Field, as was well known to every one, had for many years suffered from great lameness in consequence of an injury received by him in early life, and with difficulty could walk without assistance. Mr. Montgomery, with freezing candor, informs the Supreme Court that, in strict accordance with the chivalrous code of honor, Judge Terry administered blows upon a member of that court, to force him into a duel, because of a judicial act with which he was displeased. He says: "The most conclusive proof that Terry had no intention, for the time being, of seriously hurting Field, but that his sole purpose was to tender him an insult, is found in the fact that he only used his open hand, and that, too, in a mild manner." We often hear of the "mild-mannered men" who "scuttle ships" and "cut throats," but this is the very first one whose "very mild manner" of beating a justice of the Supreme Court of the United States with his hand was ever certified to by an attorney and counsellor of that court in the argument of a case before it. It would be difficult to conceive of anything more puerile or absurd than this pretense that Terry had the slightest expectation of provoking a man of Justice Field's age, official position, and physical condition, to fight a duel with him in vindication of the right of the court over which he presided to imprison a man for contempt for beating the marshal in the face with his fist, and afterwards pursuing him with a knife, in the presence of the court, for obeying an order of the court. Mr. Montgomery appears to have been imported into the case mainly for the purpose of reviewing the facts and giving them the Terry stamp. His ambition seems to have been to insult Justice Field and his associates in the Circuit Court by charging them with misrepresenting the facts of the occurrence, thus repeating Terry's reckless accusations to that effect. For Terry he had only words of eulogy and admiration, and said he was "straightforward, candid, and incapable of concealment or treachery himself, and therefore never suspected treachery, even in an enemy." These noble qualities Terry had illustrated by assaulting Justice Field from behind while the latter was in a position which placed him entirely at the mercy of his assailant. Montgomery thought that not only Neagle, but the President, Attorney-General, district attorney, and Marshal Franks should be arraigned for Terry's murder. Although Justice Field had expressly advised the marshal that it was unnecessary for anybody to accompany him to Los Angeles, and although Neagle went contrary to his wish, and only because the marshal considered himself instructed by the Attorney-General to send him, yet Mr. Montgomery especially demanded that he (Justice Field) should be tried for Terry's homicide. This, too, in the face of the fact that under instructions from the attorney-general of the State of California, aroused to his duty by the Governor, the false, malicious, and infamous charge made against Justice Field by Sarah Althea Terry was dismissed by the magistrate who had entertained it, on the ground that it was manifestly destitute of the shadow of a foundation, and that any further proceedings against him would be "a burning disgrace to the State." The decision of the Circuit Court discharging Neagle from the custody of the sheriff of San Joaquin county was affirmed by the Supreme court of the United States on the 14th of April, 1890. Justice Field did not sit at the hearing of the case, and took no part in its decision, nor did he remain in the conference room with his associate justices at any time while it was being considered or on the bench when it was delivered. The opinion of the Court was delivered by Justice Miller. Dissenting opinions were filed by Chief Justice Fuller and Justice Lamar. Justice Miller's opinion concludes as follows: "We have thus given, in this case, a most attentive consideration to all the questions of law and fact which we have thought to be properly involved in it. We have felt it to be our duty to examine into the facts with a completeness justified by the importance of the case, as well as from the duty imposed upon us by the statute, which we think requires of us to place ourselves, as far as possible, in the place of the Circuit Court and to examine the testimony and the arguments in it, and to dispose of the party as law and justice require. "The result at which we have arrived upon this examination is, that in the protection of the person and the life of Mr. Justice Field, while in the discharge of his official duties, Neagle was authorized to resist the attack of Terry upon him; that Neagle was correct in the belief that without prompt action on his part the assault of Terry upon the Judge would have ended in the death of the latter; that such being his well-founded belief, he was justified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in doing so; and that he is not liable to answer in the courts of California on account of his part in that transaction. "We therefore affirm the judgment of the Circuit Court authorizing his discharge from the custody of the sheriff of San Joaquin county." [1] NOTE.--Mr. Choate took great interest in the question involved--the right of the Government of the United States to protect its officers from violence whilst engaged in the discharge of their duties,--deeming its maintenance essential to the efficiency of the Government itself; and he declined to make any charge or take any fee for his professional services in the case. The privilege of supporting this great principle before the highest tribunal of the country, where his powers would be most effectively engaged in securing its recognition, was considered by him as sufficient reward. Certainly he has that reward in the full establishment of that principle--for which, also, both he and Attorney-General Miller will receive the thanks of all who love and revere our national government and trust that its existence may be perpetuated. Mr. James C. Carter, the distinguished advocate of New York, also took a deep interest in the questions involved, and had several consultations with Mr. Choate upon them; and his professional services were given with the same generous and noble spirit that characterized the course of Mr. Choate. CHAPTER XXI. CONCLUDING OBSERVATIONS. Thus ends the history of a struggle between brutal violence and the judicial authority of the United States. Commencing in a mercenary raid upon a rich man's estate, relying wholly for success on forgery, perjury, and the personal fear of judges, and progressing through more than six years of litigation in both the Federal and the State courts, it eventuated in a vindication by the Supreme Court of the United States of the constitutional power of the Federal Government, through its Executive Department, to protect the judges of the United States courts from the revengeful and murderous assaults of defeated litigants, without subjecting its appointed agents to malicious prosecutions for their fidelity to duty, by petty State officials, in league with the assailants. The dignity and the courage of Justice Field, who made the stand against brute force, and who, refusing either to avoid a great personal danger or to carry a weapon for his defense, trusted his life to that great power which the Constitution has placed behind the judicial department for its support, was above all praise. The admirable conduct of the faithful deputy marshal, Neagle, in whose small frame the power of a nation dwelt at the moment when, like a modern David, he slew a new Goliath, illustrated what one frail mortal can do, who scorns danger when it crosses the path of duty. The prompt action of the Executive Department, through its Attorney-General, in directing the marshal to afford all necessary protection against threatened danger, undoubtedly saved a justice of the Supreme Court from assassination, and the Government from the disgrace of having pusillanimously looked on while the deed was done. The skill and learning of the lawyers who presented the case of Neagle in the lower and in the appellate courts reflected honor on the legal profession. The exhaustive and convincing opinion of Circuit Judge Sawyer, when ordering the release of Neagle, seemed to have made further argument unnecessary. The grand opinion of Justice Miller, in announcing the decision of the Supreme Court affirming the order of the Circuit Court, was the fitting climax of all. Its statement of the facts is the most graphic and vivid of the many that have been written. Its vindication of the constitutional right of the Federal Government to exist, and to preserve itself alive in all its powers, and on every foot of its territory, without leave of, or hindrance by, any other authority, makes it one of the most important of all the utterances of that great tribunal. Its power is made the more apparent by the dissent, which rests rather upon the assertion that Congress had not legislated in exact terms for the case under consideration, than upon any denial of the power of the Federal Government to protect its courts from violence. The plausibility of this ground is dissipated by the citations in the majority opinion of the California statute concerning sheriffs, and of the federal statute concerning marshals, by which the latter are invested with all the powers of the sheriffs in the States wherein they reside, thus showing clearly that marshals possess the authority to protect officers of the United States which sheriffs possess to protect officers of the State against criminal assaults of every kind and degree. During the argument in the Neagle case, as well as in the public discussions of the subject, much stress was laid by the friends of Terry upon the power and duty of the State to afford full protection to all persons within its borders, including the judges of the courts of the United States. They could not see why it was necessary for the Attorney-General of the United States to extend the arm of the Federal Government. They held that the police powers of the State were sufficient for all purposes, and that they were the sole lawful refuge for all whose lives were in danger. But they did not explain why it was that the State never did afford protection to Judges Field and Sawyer, threatened as they notoriously were by two desperate persons. The laws of the State made it the duty of every sheriff to preserve the peace of the State, but the Terrys were permitted, undisturbed and unchecked, to proclaim their intention to break the peace. If they had announced their intention, for nearly a year, to assassinate the judges of the Supreme Court of the State, would they have been permitted to take their lives, before being made to feel the power of the State? Would an organized banditti be permitted to unseat State judges by violence, and only feel the strong halter of the law after they had accomplished their purpose? Can no preventive measures be taken under the police powers of the State, when ruffians give notice that they are about to obstruct the administration of justice by the murder of high judicial officers? It was not so much to insure the punishment of Terry and his wife if they should murder Justice Field, as to prevent the murder, that the executive branch of the United States Government surrounded him with the necessary safeguards. How can justice be administered under the federal statutes if the federal judges must fight their way, while going from district to district, to overcome armed and vindictive litigants who differ with them concerning the judgments they have rendered? But it was said Judge Terry could have been held to bail to keep the peace. The highest bail that can be required in such cases under the law of the State is five thousand dollars. What restraint would that have been upon Terry, who was so filled with malice and so reckless of consequences that he finally braved the gallows by attempting the murder of the object of his hate? But even this weak protection never was afforded. Shall it be said that Justice Field ought to have gone to the nearest justice of the peace and obsequiously begged to have Terry placed under bonds? But this he could not have done until he reached the State, and he was in peril from the moment that he reached the State line. The dust had not been brushed from his clothing before some of the papers which announced his arrival eagerly inquired what Terry would do and when he would do it. Some of them seemed most anxious for the sensation that a murder would produce. The State was active enough when Terry had been prevented from doing his bloody work upon Justice Field. The constable who had been telegraphed for before the train reached Lathrop on the fatal day, but who could not be found, and was not at the station to aid in preserving the peace, was quick enough to _arrest Neagle without a warrant, for an act not committed in his presence_, and therefore known only to him by hearsay. Against the remonstrances of a supreme justice of the United States, who had also been chief justice of California, and who might have been supposed to know the laws as well at least as a constable, the protection placed over him by the Executive branch of the Federal Government was unlawfully taken from him and the protector incarcerated in jail. The constable doubtless did only what he was told and what he believed to be his duty. Neagle declined to make any issue with him of a technical character and went with him uncomplainingly. If Neagle's pistol had missed fire, or his aim had been false, he might have been arrested on the spot for his attempt to protect Justice Field, while Terry would have been left free at the same time to finish his murderous work then, or to have pursued Justice Field into the car and, free from all interference by Neagle, have despatched him there. The State officials were all activity to protect the would-be murderer, but seemed never to have been ruffled in the least degree over the probable assassination of a justice of the Supreme Court of the United States. The Terrys were never thought to be in any danger. The general belief was that Judges Field and Sawyer were in great danger from them. The death of Terry displeased three classes: first, all who were willing to see Justice Field murdered; second, all who naturally sympathize with the tiger in his hunt for prey, and who thought it a pity that so good a fighter as Terry should lose his life in seeking that of another; and, third, all who preferred to see Sarah Althea enjoy the property of the Sharon estate in place of its lawful heirs. It is plain from the foregoing review that the State authorities of California presented no obstruction to Terry and his wife as they moved towards the accomplishment of their deadly purpose against Justice Field. It was the Executive arm of the nation operating through the deputy United States marshal, under orders from the Department of Justice, that prevented the assassination of Justice Field by David S. Terry. * * * * * It only remains to state the result of the second trial of the case between Sarah Althea Hill, now Mrs. Terry, and the executor of William Sharon before the Superior Court of the city of San Francisco. It will be remembered that on the first trial in that court, presided over by Judge Sullivan, a judgment was entered declaring that Miss Hill and William Sharon had intermarried on the 25th of August, 1880, and had at the time executed a written contract of marriage under the laws of California, and had assumed marital relations and subsequently lived together as husband and wife. From the judgment rendered an appeal was taken to the Supreme Court of the State. A motion was also made for a new trial in that case, and from the order denying the new trial an appeal was also taken to the Supreme Court. The decision on the appeal from the judgment resulted in its affirmance. The result of the appeal from the order denying a new trial was its reversal, with a direction for a new trial. The effect of that reversal was to open the whole case. In the meantime William Sharon had died and Miss Hill had married David S. Terry. The executor of William Sharon, Frederick W. Sharon, appeared as his representative in the suit, and filed a supplemental answer. The case was tried in the Superior Court, before Judge Shafter, in July, 1890, and on the 4th of August following the Judge filed his findings and conclusions of law, which were, briefly, as follows: That the plaintiff and William Sharon, deceased, did not, on the 25th of August, 1880, or at any other time, consent to intermarry or become, by mutual agreement or otherwise, husband and wife; nor did they, thereafter, or at any time, live or cohabit together as husband and wife, or mutually or otherwise assume marital duties, rights, or obligations; that they did not, on that day or at any other time, in the city and county of San Francisco, or elsewhere, jointly or otherwise, make or sign a declaration of marriage in writing or otherwise; and that the declaration of marriage mentioned in the complaint was false, counterfeited, fabricated, forged, and fraudulent, and, therefore, null and void. The conclusion of the court was that the plaintiff and William Sharon were not, on August 25, 1880, and never had been husband and wife, and that the plaintiff had no right or claim, legal or equitable, to any property or share in any property, real or personal, of which William Sharon was the owner or in possession, or which was then or might thereafter be held by the executor of his last will and testament the defendant, Frederick W. Sharon. Accordingly, judgment was entered for the defendant. An appeal was taken from that judgment to the Supreme Court of California, and on the 5th of August, 1892, Sarah Althea Terry having become insane pending the appeal, and P.P. Ashe, Esq., having been appointed and qualified as the general guardian of her person and estate, it was ordered that he be substituted in the case, and that she subsequently appear by him as her guardian. In October following, the appeal was dismissed. Thus ended the legal controversy initiated by this adventuress to obtain a part of the estate of the deceased millionaire. 
38231	----	produced from scanned images of public domain material from the Google Print project.) ARGUMENTS BEFORE THE COMMITTEE ON PATENTS OF THE HOUSE OF REPRESENTATIVES ON H. R. 11943, TO AMEND TITLE 60, CHAPTER 3, OF THE REVISED STATUTES OF THE UNITED STATES RELATING TO COPYRIGHTS. MAY 2, 1906. COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, FIFTY-NINTH CONGRESS. FRANK D. CURRIER, NEW HAMPSHIRE, _Chairman_. SOLOMON R. DRESSER, PENNSYLVANIA. JOSEPH M. DIXON, MONTANA. EDWARD H. HINSHAW, NEBRASKA. ROBERT W. BONYNGE, COLORADO. WILLIAM W. CAMPBELL, OHIO. ANDREW J. BARCHFELD, PENNSYLVANIA. JOHN C. CHANEY, INDIANA. CHARLES McGAVIN, ILLINOIS. WILLIAM SULZER, NEW YORK. GEORGE S. LEGARE, SOUTH CAROLINA. EDWIN Y. WEBB, NORTH CAROLINA. ROBERT G. SOUTHALL, VIRGINIA. JOHN GILL, JR., MARYLAND. EDWARD A. BARNEY, _Clerk_. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1906. ARGUMENT (CONTINUED) ON H. R. 11943, TO AMEND TITLE 60, CHAPTER 3, OF REVISED STATUTES OF THE UNITED STATES, RELATING TO COPYRIGHTS. COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, _Washington, D.C., May 3, 1906_. The committee met at 11 o'clock a.m., Hon. Frank D. Currier (chairman) in the chair. The CHAIRMAN. I have received a telegram regarding the bill now before the committee from John Philip Sousa, which reads as follows: NORTHAMPTON, MASS., _May 3, 1906_. _The Chairman and Members of Congress_, _Committee on Patents, Washington, D.C._: Earnestly request that the American composer receives full and adequate protection for the product of his brain; any legislation that does not give him absolute control of that he creates is a return to the usurpation of might and a check on the intellectual development of our country. JOHN PHILIP SOUSA. STATEMENT OF MR. A. R. SERVEN, ATTORNEY FOR THE MUSIC PUBLISHERS' ASSOCIATION--Continued. Mr. SERVEN. Mr. Chairman and gentlemen of the committee, during the last hundred years and more the inventors of the country have been liberally dealt with by the lawmakers, and the result is to-day no country in the world stands higher in everything in the line of mechanical and industrial development than the United States does, and I think you gentlemen who have this matter of patents in charge may justly take pride in yourselves that your committee in the past has done such magnificent work for the wealth, the prosperity, and the reputation, and the ability of the United States at home and abroad. It is conceded, I think, to-day all over the world that the American inventor is the most industrious, the most ingenious, and is the most valuable part of the real wealth of the United States, and that is so because from the very start the laws have been most liberal to protect the American inventor for every bit of the right of property which he could possibly have in anything that is the creation of his brain and his genius. Now, unfortunately, as I remarked yesterday, the record is not just that way in regard to the musical inventors--if I may use that term--of the United States, and that, and that alone, is the reason why we have to-day almost no names of composers that have a world-wide reputation. Perhaps the sender of the telegram we have just heard read is as well known in other countries as any composer we have; possibly his music has been heard by more people than the music of any other composer of the United States; and yet the musical critics all over the world say America has no national music because she has no national composers. It is true that there is not in existence to-day, perhaps, a single ambitious musical drama that can claim popularity and reputation that may be expected to be handed down as one of the musical classics that had as its composer a citizen of the United States. I am informed by these musical gentlemen that probably the greatest composer we ever had was compelled, in order to surround himself with the necessities which he required to prosecute his musical work, to leave the United States and take up his residence in Europe, where he continued to live, I believe, to his death. I think that Mr. Furness, who is much better informed than I--and possibly in the opinion of the Musical Publishers' Association, anyway, he is the one man of all those in the United States who knows most about these things--would like to tell you something about this composer this morning, because it is a unique part of the national history, and not by any means a creditable one. Mr. WEBB. Who was it? Mr. FURNESS. McDowell. Mr. SERVEN. The reason that the composer has not gone hand in hand with the literary man and with the inventor, who produce their works from the brain, is because thus far our country has not been so ready to concede to them the right of absolute use and control of their works. The inventor has the right to say just who shall produce his invention, just what it shall be sold for, if he wants to limit it as to that, and just who shall buy it, even, if he wants to go as far as that. Mr. DRESSER. I doubt that. The CHAIRMAN. An idea has just occurred to me. I understood you to say yesterday that this movement to enforce the law arose from the fact that men like Mr. Tams had gone into the renting or lending of musical works as a business. Mr. FURNESS. I would like to treat of that later. The CHAIRMAN. And that that was the feature which you wished to reach. Suppose this committee should amend this law so as to provide that the renting or lending of these books should be confined to the societies, as we indicated yesterday, that give charitable performances without profit, so that they could only borrow from other similar societies. Mr. FURNESS. Mr. Chairman, if you will allow me, I would like to speak of that a little later. The CHAIRMAN. That would entirely wipe out the evil which you suggested to the committee yesterday. Mr. FURNESS. I doubt whether there is any great number of those people in the United States. You take choirs and churches. Of course churches are not in commercial line of business; they have no means of earning money except by general subscription by members or sale of the seats, and there are a very few cases where the Sunday school wishes to give an entertainment for charity. Those compositions are very inexpensive. Mr. Tams yesterday tried to make you believe that some of them cost $2 apiece. That is not true. The short cantatas and little operettas run from $4 a hundred to 35 cents apiece, and in very few cases higher than 40 cents. In regard to the renting, we have made provision for that in the new copyright draft that is being framed, the publisher or author or owner of the copyright, whoever he is, should have the right to make such loan, but that it should not be done through what we term the scalper. The CHAIRMAN. Do you think the publishers would greatly object if the lending of these books was confined to a religious or school society, and the loan was made to a similar society for charitable performances? Mr. FURNESS. We have in Massachusetts, in Worcester, a musical society that gives an entertainment each spring, called the May Festival. Mr. SERVEN. Do they charge an admission? Mr. FURNESS. They charge an admission, and they get the best talent they can procure. They have a few hundred books, and many times they loan them out to other societies for similar entertainments, to societies that are not so poor but what they could afford to buy them. That is one of the great evils that is interfering with the business of the music publishers. Mr. GILL. Do the singers and musicians give their services free? Mr. FURNESS. No; they do not. They are well paid. They have Caruso and Sembrich and others of that class. Mr. SERVEN. There may be a single song or instrumental piece which, of course, can be produced on three or four pages and sold separately; but anything other than something like that in the line of a musical composition is simply valuable to the producer of it because of the fact that it is going to be performed, and it is written especially for that purpose, just as the dramatic compositions are written solely for the purpose of performance, and not for the purpose of their literary merit or as a matter of reading. And for that reason the performance of the extended musical composition is exactly the same as the performance of the dramatic composition. And, to follow the comparison with the patent, in the same way that the manufacture of the patent is to the right that is granted under the patent so is this performance to the right that is granted under the copyright, and the proceeds of the production are directly proportional to the performance of the production. There is, to be sure, a limited amount of private sales to persons who, for instance, find some one little theme in a composition and like to have it in their homes and occasionally sing it in their homes and possibly somewhere else, but I should think it would be safe to say that not less than 90 per cent of all the sales of oratorios or operettas or cantatas--I am speaking both of religious and secular musical works--are either directly or indirectly solely for the purpose of public performance and connected with public performance. The CHAIRMAN. But one of these societies that bought the books for the purpose of giving a performance would only loan it to some society near by. Mr. SERVEN. Unless, as they sometimes do, they would send from Worcester to California for something. It is easy to do those things, and they do it, or have done it. The CHAIRMAN. There might be persons in a society in California that had friends belonging to a similar society in Massachusetts, and in such cases there might be some correspondence and exchange, but that would rarely happen, I should say. Mr. SERVEN. They are in correspondence all over the country--the different societies. For instance, there is a Cincinnati society that has an annual festival there, and it carries on a correspondence with similar societies throughout the country. Mr. WEBB. Your idea is that nobody but a person who buys a piece of copyright music should have a right to perform it publicly? Mr. SERVEN. That is what is doing to-day. The person that buys it has the right of public performance. Mr. CHANEY. Carrying out the analogy with patents, what would you say about the right of a man who buys a patent to dispose of it in any way he pleases? Mr. SERVEN. He buys the patent right. Mr. CHANEY. He buys a machine, for instance. Mr. SERVEN. The object that is patented under the patent? Mr. CHANEY. Yes; take a reaper or a mower or a trashing machine. Mr. SERVEN. In a case of that kind it seems to me that the owner of the patent, if he likes, can do just as he pleases, and as a matter of fact in very many instances they sell the right to manufacture for certain districts---- Mr. CHANEY. Exclusive of manufacturing, I mean. Mr. SERVEN. I will follow it from the manufacturer. I remember in my own county--my native county--that a certain variety of fence that was patented, in which case rights were sold in every township, not only to manufacture, but also to sell to other residents of that town the use of that particular kind of fence, whether it was manufactured by the fellow who bought the use, or whether it was manufactured by the fellow who had a license for that town, and nobody else who did not get that from the original patent-right owner, or the licensee under him, could build that fence, and I remember that there were several farmers who liked the fence but who didn't like to pay the price, and they attempted to build it, and they were hauled up in the courts, and my remembrance is that it cost them $1,500 or $1,800 altogether to settle for a little strip of fence that was not worth more than $50. Mr. DRESSER. I don't believe a court would ordinarily give such a judgment as that in such a case. Mr. CHANEY. Suppose you limit it as to a machine, without any statement as to his rights further than there is a machine for his use. Now, has he not the right that he can dispose of that machine to anybody he chooses? Mr. SERVEN. Undoubtedly, because the law provides expressly that thing now. Mr. CHANEY. Now, then, what difference would there be---- Mr. SERVEN. The law provides expressly the opposite in regard to the public performance of the musical composition, and under that old principle let the buyer look out! He is supposed to know what the law is. Mr. CHANEY. That being so, ought not a man who buys a musical composition to have the right to do just as he pleases with it, the same as a man who purchases a mowing machine? For instance, I sing some myself. If I buy a piece of music ought I not to have a right to do what I please with it? Mr. SERVEN. Certainly, if your contract covers that. Mr. CHANEY. But suppose it does not. Mr. SERVEN. There must be an express or implied contract as to what he is buying. Mr. CHANEY. He buys the machine. Mr. BONYNGE. I do not understand that he has not the same right if he buys a piece of music he can do what he wants to with it; but the other question is in regard to the public performance. Mr. SERVEN. For profit; yes. Mr. CHANEY. In the case of a musical composition, he buys it for the purpose of public performance. Mr. SERVEN. Not necessarily. Mr. CHANEY. For instance, take a Sunday-school book---- Mr. FURNESS. It does not cover that at all. The CHAIRMAN. You state that this law refers to the use of these books for a public performance for profit. I do not understand the law that way. Mr. CHANEY. I do not, either. The CHAIRMAN. The committee has suggested yesterday and to-day an amendment which would put the law as you state it, and you object to that. Mr. SERVEN. For this reason: It is proposed to make certain exceptions, to allow privileges to certain beneficiaries under this law, which would really defeat the law, because that sort of a proposition is solely for financial profit, the sort of entertainment that is referred to. Upon investigation it will be found that nearly every entertainment of the kind referred to is really for profit; that instead of lending or renting for a charitable enterprise pure and simple, it will be found that it is a money-making enterprise; there is hardly an exception. You will find that such an entertainment is not a social affair. It is not that sort of a thing. It is an institution solely devised as an expedient to raise money for certain specific purposes, whatever they may be. Now, if we simply give, as, for instance, for the benefit of the occupants of a hospital, or something of that kind, where there is no charge or anything of that sort, we give simply for the entertainment of a company of gentlemen and ladies, where the public is not shut out unless they had the price, then I am sure these gentlemen would not have the slightest objection to it whatever; in fact, they like to encourage that sort of thing, and they even lend their music for such purposes. Mr. CHANEY. But you want the power of doing that lending yourselves? Mr. SERVEN. Yes; if our music is gone, we like to do the lending. Mr. CHANEY. Suppose I buy this composition [holding up musical composition]: haven't I a right to sing it, and have not my friends a right to sing it at my expense? Mr. SERVEN. You have, so far as any private performance is concerned. Mr. CHANEY. Well, in public? Mr. SERVEN. I don't think so. Mr. CHANEY. Ought I not to have that right? Mr. SERVEN. That depends on what the contract is when you buy it. Mr. FURNESS. You could not sing that yourself [referring to musical composition]; that requires more than one voice. Mr. GILL. How was the use of that restricted when it was purchased? Mr. FURNESS. The law says that if he does that willfully, or for profit--I think the words "for profit" are in the statute--that he is guilty of a misdemeanor, and, upon conviction, is subject to imprisonment not less than a year, I think, the same as for the dramatic public performance; it is the same remedy for both. Mr. GILL. You sell that without any restriction? Mr. SERVEN. Without any notice of restriction. Mr. GILL. Without any restriction? Mr. SERVEN. No. Mr. GILL. Is it not a matter of fact that you make the sale without any contract? I concede that if you make a contract of course you can restrict its use, the same as you can make a contract for the use of a patent; you can give the whole use of a patent or limit it to a town or a county, or you may restrict the patent as to whom it shall be sold, or in any way you please, and I admit that you could restrict this; but I ask, as a matter of fact, what are the contracts? It is a matter of contract? Mr. SERVEN. It is solely a matter of contract. Mr. GILL. You sell it without any contract. Mr. SERVEN. No---- Mr. GILL. Does not that, then, give the man a property right which he can use as he pleases--where you have made no restrictions whatever? Mr. SERVEN. We have done everything the law says we shall do in order to put this matter under the protection of 4966. Mr. GILL. Have the courts interpreted this in any way? Mr. SERVEN. This penalty clause of it? Mr. GILL. Has this been brought up? Mr. SERVEN. This penalty clause has not been interpreted, for this reason: That so far as the music publishers are concerned, probably the same as the dramatic producers, they have not endeavored to press the penal provisions; they have felt that if the provision was in the law it was a warning to the man who was attempting to violate that provision, and that the moral effect, possibly, of such a paragraph ought to pretty largely protect their interests; yet they have a number of times considered that question, and I am not at all sure but what some day they may reach the conclusion that they would like to have the court pass upon the question whether Mr. Tams is violating the law. Mr. GILL. But there is no practical notice or warning to a person who goes into a music store and buys that, because there is nothing on the book you sell that indicates that there is any limitation or restriction in regard to its use by the purchaser? Mr. FURNESS. The only way that has been brought before us publishers is this: That when they have asked for a public performance, or probably to rent the orchestral part, then we have asked them, "Have you got the score yet?" They may reply, "Yes; we have rented the score," from such and such a man. Then we refuse to give them permission to render the public performance; we say to them, "You must buy the books from the publishers--the owner of the copyright or his authorized agent, the music dealer." So far as an individual goes, and so far as a society goes, we have never brought any suit at all, and the only suit that has been brought on a question of this kind emanates from Mr. Tams, who brings a suit for $200,000 against the music publishers for trying to restrain him from renting these books for public performances. The CHAIRMAN. The committee does not get a clear idea of what the law is from your statement of it. My understanding of that law is this: That so far as the civil remedy is concerned it makes no difference at all whether the performance is given for profit or not. You can sue them and recover damages, no matter whether it is given for profit or not; but it must be given for profit in order to subject them to the criminal remedies. Mr. SERVEN. Yes; that is it, willfully and for profit. The CHAIRMAN. So far as the civil remedy is concerned, it makes no difference. Mr. BONYNGE. As far as I understand, there has been no prosecution under the penal clause. Mr. SERVEN. So far there has not; no. Mr. BONYNGE. And the only use of the penal clause so far has been that it has been a sort of a club to enforce damages. Mr. SERVEN. No; no action has been taken under that; it has simply been held there, and we have sent broadcast such notices as this which you have in your record, notice to people who were in the habit of violating that section, telling them that we might at some time be compelled to proceed under that section. Mr. CHANEY. That is, you have threatened them with that penalty. Mr. SERVEN. If that is the proper word; we have given them specific notice that there is a law and that they have been violating it, and that we do not want them to violate it. Mr. BONYNGE. As a matter of good legislation, do you think we ought to have a criminal procedure of that kind where the ordinary person would not conceive that he was guilty of a crime? Mr. SERVEN. The ordinary person, who is not a musician, who does not play in any musical society, would not pick that up; but not one person in a million is attempting to perform such a production without associating with himself many persons who are familiar with the law. Mr. BONYNGE. My friend Mr. Chaney says he is a singer. Until this matter was called to his attention it is not at all unlikely that he would rent such a book and sing it, together with other singers, at an entertainment given for charity, and according to this he would be guilty of a crime. Mr. SERVEN. I doubt it, unless he had attempted to form a company for the purpose of performing it. Mr. CHANEY. Of course you would have to get the singers together. Mr. SERVEN. You would have to do more than that; you would have to do the same thing that is done with a dramatic composition, and the remedy is the same in this case for a musical drama that it is for a tragedy or any other drama; the condition is the same, the remedy is the same, and if it is a wrong to the dramatist in one case it is a wrong to the music publisher in the other. Mr. CHANEY. You take a church organization that seeks to raise money, for instance, to buy a pipe organ; they send to Mr. Tams or somebody who has these books, and they tell him how many they would like to get, and ask him how much he will charge for them, and it may be that sometimes they could get them for just the expense of the express charges and the payment for any damage or for any books destroyed. They go ahead and produce that musical operetta. Now, they have committed a crime? Mr. SERVEN. No; because before that they have to have somebody who is a musical director, who knows about it. Mr. CHANEY. That goes with the performance---- Mr. SERVEN. There is not such a person as that in the United States, I assume, that does not know just exactly what the provisions of law are. Mr. BONYNGE. But he is not the only person who would be guilty of the crime. Those in the chorus would be guilty of the crime. Mr. SERVEN. But here is the point---- Mr. CHANEY. The person who proposes to organize such an oratorio usually proposes it to the church. Mr. SERVEN. As a matter of fact, I have been informed that Mr. Tams is the principal gentleman in the United States who is doing that sort of thing, to persuade people to violate this statute. Why? Because it is to his profit. At least we assume it is, because, according to his ratings, and so forth, we understand he has made a large amount of money in this particular business. In fact, it has been suggested that Mr. Tams's financial standing compares very favorably with some of these musical composers we have heard about. The CHAIRMAN. I want to put into the record at this point this notice. Mr. TINDALE. May I correct a typographical error? The CHAIRMAN. No; read it just as it is. Mr. TINDALE. (reading from the first page of a musical composition): The copying of either the separate parts or the entire composition by any process whatsoever is forbidden and subject to the penalties provided under section 4965 of the copyright laws, right to performance can only be secured by the purchase of a copy of this score for each and every singer taking part. You do not allow any comments? The CHAIRMAN. We will ask for comments. How lately have you been putting that notice in your copyright books? Mr. TINDALE. For about four years. The CHAIRMAN. Does that give any notice to the purchaser of this book that he can not rent or loan it? Mr. TINDALE. It states it in a positive manner instead of a negative manner. The CHAIRMAN. Let me ask you how it gives any notice whatever that the purchaser can not rent or lend the book? Mr. TINDALE. It says that the performing rights are given only by purchase of this copy. The CHAIRMAN. But the original purchaser purchases a copy for every single member of the chorus. Mr. TINDALE. Then we have no objection. The CHAIRMAN. No objection to their loaning them? Then we can fix this in a moment. I want to ask where there is anything in that notice that would give notice to the purchaser that he could not rent or loan those books? Mr. SERVEN. He may loan or rent or do what he pleases, but the fellow that borrows is the fellow that that notice affects. The CHAIRMAN. Not at all. Mr. SERVEN. It is the fellow that wants to give the public performance. The CHAIRMAN. You call attention to a certain section of the Revised Statutes, and that has nothing to do with this matter at all--the very section you call attention to. Mr. SERVEN. Even with such a notice, it strikes me that that does not affect what the law does require. The CHAIRMAN. That is not the question. What the committee is getting at is whether you give the people you sell these books to any notice at all that they can not rent them? Mr. CHANEY. What information would that notice give them? Mr. TINDALE. I take it that they would have notice that they had to do something, Mr. Tams having bought the copy. The CHAIRMAN. I am not talking about Mr. Tams at all; I am trying to find out whether there is any notice to any musical society--whether there is any warning that they must not lend these books? Mr. TINDALE. The warning consists in the word "only"--can only be secured; and more recent copies---- The CHAIRMAN. I am not talking about the people that borrow; I am talking about the people that lend--the church society that buys the copies. Is there anything in that notice that would caution them that they must not lend these books? Mr. TINDALE. The notice has to speak for itself. We think that is a warning. Mr. SERVEN. We have no objection to the lending; that is not our point; it is the public performance from the copy that is loaned. Mr. WEBB. For charity or profit or any reason? Mr. SERVEN. For any purpose. It is the public performance that is the thing we object to. The CHAIRMAN. What do you think the public would borrow these for if not for public performance? Mr. SERVEN. They might want to look at them; somebody might borrow it to look it over. The CHAIRMAN. I don't think they would borrow many copies for that. Mr. SERVEN. That is what I say, that we sell almost no copies except for public performances. There are very few people who ever buy these for private inspection. Almost every single copy of this sort is sold for the purpose of public performance, and that is why this very thing has damaged us so much and estimated to have cut down our sales on those particular productions from 75 to 80 per cent. The CHAIRMAN. Who makes that estimate? Mr. SERVEN. Primarily I make that estimate from the best information I can get from gentlemen in the publishing business, and secondly, it is made from those who make the sales, whose sales are reduced. The CHAIRMAN. It ought to be very easy for the musical people to furnish their books and give us a verification of that statement. If before Mr. Tams and the gentlemen engaged in that business entered the field they were making, for instance, $10,000 a year, and that business has shrunk, according to your statement yesterday, 85 per cent, it ought to be very easy for them to give the committee that information. Mr. SERVEN. It so happens, Mr. Chairman, that our music publishers have other things to depend on. If they had only this I venture to say that the probability is that there would not be a single extended music work published in the United States to-day unless it was done solely through philanthropy. As to this question of notice, while I consider that aside from the point, because the law does not say that there shall be notice, but it says that we have complied with certain other things in the law, and we have to subscribe to that before we can get our copyright from the Librarian of Congress, yet this is a copy of the circular which last January, I understand, was sent to every musical society that the publishers knew of in the United States, specifically calling attention to the fact that there was such a law. So, in addition to whatever the law might have required in the question of notice, it would not be our fault that they did not have such notice, and in addition to that we have unanimously recommended that in case of every right of that sort where the right was reserved it should carry notice of it somewhere in a conspicuous place on the front of the work itself, so that there can not be in the future any question as to whether the fellow that uses it knows he is violating the law. But to come to what I think is the real meat of this question. This is purely a business question and nothing else, a question of contract---- The CHAIRMAN. I beg your pardon, you are not relying on your contract at all; you are relying on your statutory rights. Mr. SERVEN. Which have to be read into our contract, of course. The only way we could make a contract which would give public-performance rights would be by furnishing the purchaser a contract or with an agreement from us that they should have the performing right, and it seems to us that the sole matter that is at stake in this controversy between these gentlemen and ourselves is simply this: Not whether or not we have sold them performing rights in the past, but whether or not we shall sell them performing rights in the future, and should you pass this act I think if the publishers should decline under that to sell performing rights, I think I see very clearly that they would have the right to go into the courts and compel it. Mr. CHANEY. You would not make any sales. Mr. SERVEN. We would sell to the people who came to us, if they wanted us to. We might sell them the right to perform it anywhere in the United States, or we might say that we would sell them the right to perform it once or ten times or whatever way we might want to limit it, in a certain place, or at certain places, for instance. Mr. BONYNGE. Would not that be a good deal better than the way it is? Mr. SERVEN. Possibly it would; I am not sure. But from the point of view of the fellow who proceeds in an enterprise without investigating the law, that would certainly take care of him, and while it would mean a little more trouble and expense on our part, it would tell him, "If you steal our performing rights you will be subject to punishment, and therefore if you do not buy it, we will send you up for a term;" and if we do it for other things, I do not know why we should not do it for music. The CHAIRMAN. I must tell you that you only have two or three minutes left. Mr. SERVEN. I will just take one minute more. We have not made exorbitant profits, as may perhaps be suggested by a copy of the letter which the chairman showed yesterday--a good many of them. That seems to be a stock letter, prepared by somebody who is directly interested in the enactment of this legislation---- The CHAIRMAN. We will not be able to hear any other gentlemen on your side this morning. (Informal discussion followed about the method of procedure.) Mr. WEBB. Would you be satisfied if we were to restrict the performance of your music to charitable performances or where no charge was made? Mr. SERVEN. If you will hand in hand with that restrict the persons who perform our music to doing so without compensation, I think I may say, can I not [addressing some of the music publishers present], that we would be willing to do that. But we do not understand--we do not believe that you ought to say to us that we must furnish our property without compensation, while all the rest get compensation. Mr. FURNESS. Providing those people would write to the author--the composer. Let us be the controller of the property belonging to us. Mr. TINDALE. They pay for everything else; they pay for the carpet on the floor and the lights and carriages that come to the church entertainments. Mr. FURNESS. I am sure in the case of the firm I am connected with--Oliver Ditson Company, of New York, Philadelphia, and Boston--that we would not object to helping charitable performances at any time; that where the people were not able to buy books we would be glad to lend them. The CHAIRMAN. Would you object, then, to an amendment that they might be loaned for charitable purposes, the only prerequisites being that they should notify the publisher that they would desire the loan of the books, or do you desire to pass on each application? Mr. FURNESS. Yes; we would prefer to pass on each application. I think we would hesitate to agree to anything else. Mr. FROEMNE. As a matter of fact, don't you buy most of your publications? Aren't they your own property? Mr. TINDALE. Absolutely not. Nine-tenths of them are published on a royalty. Mr. FROEMNE. Then you don't buy them outright? Mr. TINDALE. Very seldom. Mr. FROEMNE. How many publications have you in your establishment that are bought outright? Mr. TINDALE. One out of ten. Mr. FROEMNE. How many? Mr. TINDALE. That would take a calculation. Mr. FROEMNE. I would like to know for the information of the committee how many they have. As a matter of fact, most of them are bought outright. They give them a trifling sum of $50 or $25--even $10. Mr. FURNESS. That is not true, Mr. Chairman, and I want to be put down on the record as saying it is not true. We have publications to-day, and we are paying large royalties on the full retail price of the article, which never retails for that price, and in most cases at one-half that price. The CHAIRMAN. Just a minute. The members of the Publishers' Association may have until next Wednesday to file any statement they please, which will be made a part of the record. Mr. SERVEN. I would like five minutes more. The CHAIRMAN. I can not give you the time. Mr. BONYNGE. That is all the time we have. The CHAIRMAN. We will hear you for five minutes [addressing Mr. Froemne]. STATEMENT OF MR. HERMAN FROEMNE. Mr. FROEMNE. Mr. Chairman and gentlemen of the committee, first I would wish to try to straighten out a few false statements that were made yesterday, and I want to say that they were made not by mistake, but absolutely---- The CHAIRMAN. I don't think we want anything of that kind to go in the record. Mr. FROEMNE. I wish to say that according to these very interests and the statements made in evidence the rights of performance can only be secured by the purchase of a copy of the score for each and every singer taking part. A copy of each score was bought for the past fifteen years by Mr. Tams. The publishers knew he was renting it out. It has only been a few months ago they wanted to make a stop of it, and I will now say that for the future--from now on--he should not have the right, or any other library have the right, to rent them out; but he certainly has a right to the use of the stock he has, which he bought and paid for. He does not reprint them, you understand. My friend refers you to a patent. Look at a patent. A patent has two sides to it. You have a right to buy a patented machine, but you have no right to manufacture it. Now, we are not making plates to print these books. We don't buy one book and print a thousand of them and rent them out. That would be an infringement; but we are paying whatever the price of it is, 20 cents or 30 cents or a dollar for each book, and we have bought thousands of books, and these music publishers have received from Mr. Tams from $3,000 to $4,000 a year for the past fifteen years. Where is the justice now, when he has his place stocked up, in preventing him from making any profit on it? He has his musical library in connection with his other library; he rents out dramatic compositions and other things on which royalties are being paid. Mr. GILL. May I make a suggestion? As to what he has already purchased, his rights in that connection and the conditions under which he purchased would be for the courts to determine, would it not? Mr. FROEMNE. Yes. Mr. GILL. We can not affect that in any way? Mr. FROEMNE. True. But I am saying now where one of these church choirs can rent the music it is a great blessing. I have some letters here to that effect, saying it is a great advantage to them to have a place where they can rent a book which is sold for from 50 cents to a dollar, the rent being, probably, only 10 cents apiece, or, say, one-sixth the cost. As I explained yesterday--some of you gentlemen were not here--these societies can only use a book once a year. They can not give the same performance two years in succession, and it is to their advantage either to change it, or, if they bought the books, to turn them over to another society, which it seems they should have the right to do, as they have once paid for the book. If you buy a sewing machine or any other patented article you have a right to sell it or rent it or give it away, although you have no right to manufacture it--that would be an infringement of the patent. Mr. CHANEY. What is that suit you were going to explain? Mr. FROEMNE. I will explain it. There are in this association of publishers about 25 members, and of those 25 members, I believe I told you yesterday, a number of them are absolutely fair and just; and like any other organization, you will find a few that are not; and this circular, in which there was an attempt made to have every member sign them, only secured seven signatures, or eight, of which Mr. Ditson represented three. He is from Boston, New York, and Philadelphia, as he told you himself. This circular was sent out last January, and has injured Mr. Tams, not in the renting of these particular cantatas, masses, and so forth, but other works which he has, and publications of his own. Now, I will show you where Mr. Tams's profits come in on publications which he owns. He can print thousands of them, costing him only 1 or 2 cents apiece, which he rents out at the same price as the publications which he has to buy at 50 cents or a dollar apiece. This circular has stopped him. We have letters in our possession from parties writing to him. I saw one to-day. [Addressing a gentleman.] About what is that last one? I mean before we left New York? [After receiving a suggestion from the gentleman.] "The Crucifixion," a publication by Mr. Tams. Therefore that interferes with the other business, or his library business, for it is conceded, and my friends will not deny, that Mr. Tams has the largest library in the world. Before coming before your committee to show you we were absolutely fair and just and didn't want anyone to take advantage of this amendment, that the phraseology was absolutely correct, we met their attorney, Mr. Serven, a few days ago, and I explained to him my purpose. He himself saw the justice of it. Mr. Bayly, who represents a reputable house here in Washington (Ellis & Co.)--they didn't sign the circular, by the way--didn't see any impropriety in it, but they said they expected two men from New York, and if they could arrange with them, no doubt the matter would be adjusted. I said: "Change the phraseology; do whatever you like; do not interfere with that property which we have bought and which we claim we have a right to rent in order to at least get our money back, many thousands of dollars, which they cost us." It can not be denied, we can prove it by the bills, that Mr. Tams has paid for the past fifteen years from three to four thousand dollars for books which he bought of them. They knew he had a library; they permitted him to rent it; they knew he had rented it, and it is only recently that they are trying to stop it. Mr. SULZER. Do you mean $3,000 or $4,000 a year? Mr. FROEMNE. Yes. So making it altogether from $45,000 to $60,000. As he explained to you yesterday, a work can not be loaned out more than five years once a year. It is then worn out, the pages break, and you can not use them any longer. He can not reprint them; if he did, of course he would make himself liable to the provisions of the law. So he doesn't get more than what it costs him for renting it, and it is a blessing to those who rent from him--that is what those societies say. They can go to Mr. Tams or to anyone else, or to another society, and rent these books for 10 cents apiece, or whatever the price. Now, I want to say that these gentlemen are very unjust, as has been brought out by some of the questions asked by the committee. "What do you object to if this is done without profit?" Well, they don't know exactly, except that they object. That is about the only conclusion I could reach as to what their answers mean. Now, they show great feeling toward charitable organizations--they show what great philanthropists they are---- The CHAIRMAN. The time has expired. Anything further you desire to submit can be submitted in writing before next Wednesday, and will go in as part of the hearing. The same privilege will be extended to the music publishers. I want to ask the representatives of the latter gentlemen present what their objection is to a bill if we amend the law in this way: Nothing in this act shall be construed so as to prevent the performance for charitable purposes, and not for profit, of religious and secular works, and so forth, rented or borrowed by a public school, church choir, or vocal society, when rented or borrowed from a public school, church choir, or vocal society. Mr. FROEMNE. Or from the libraries up to the present time. The CHAIRMAN. In the amendment I suggest now I will strike out "from any person or musical library." Mr. TINDALE. That would be very easily evaded. The CHAIRMAN. You can state your objection in the supplementary statement you file. I wish to say for myself--and I think I speak for the committee--that as the thing now rests in the minds of many members of the committee we had better endeavor to reach some kind of a compromise proposition. I think you had better direct your attention to some modification of the law. Mr. TINDALE. We are speaking for the American composer who furnishes this entertainment. The CHAIRMAN. You have run for more than a hundred years with no serious trouble, as you stated to us yesterday. Then came the musical libraries, men conducting an establishment like that of Mr. Tams, and the objection urged yesterday by you gentlemen to any modification of the law was on account of that. Now, suppose we cut that all out? Mr. FURNESS. In going back for a hundred years this international copyright law has changed very materially the native publications in this country. Previous to that time we had hardly anything but foreign publications worthy of any great value, nothing but a few light cantatas and light operas; but now the protection of the international copyright causes a foreigner to spend money in this country to make his publications known and give a better showing to the American author and publisher. The CHAIRMAN. The committee must adjourn. (Thereupon, at 12.05 o'clock, the committee adjourned.) _Memorandum in support of H. R. 11943._ It is unfortunate that sufficient time could not be granted to me on the hearing in favor of the amendment proposed by Congressman Bennet to section 4966 of the copyright law, especially as those opposing it consumed more than three times the time on the first day of the hearing than was consumed by our side, and that in addition thereto three-quarters of an hour was consumed by counsel for the opponents to the bill on the hearing held on the 3d instant. In addition to what has been said in favor of the bill and by way of reply to opponent's argument, we beg to submit that it must have been apparent that the music publishers will consent to none of the suggestions made by the chairman of the Committee on Patents. It will be remembered that the opponents to the amendment have made the ridiculous and false statement that their sales have decreased from 80 to 85 per cent by the renting of its copyrighted publications, and they should be required, as suggested by the chairman of the Committee on Patents, to submit statements from their books showing the amount of sales prior to the passage of the act--section 4966 of the copyright law--and since the act has been in existence. It is safe to say that by this method it would be shown, if true statements are presented, that the decrease of sales would not amount to over 5 per cent, and this 5 per cent is more than offset by the benefit derived by the publishers from the fact that in nearly all cases where a choir, vocal society, or school rents copyright music certain members thereof, and also individuals in the audience witnessing such performances also purchase a copy so used to be kept for their personal use. Thus the publishers reap the benefit of the copies sold after a performance given from rented copies. In answer to a question put by me to Mr. Tindale as to whether or not it was not a fact that his firm owned outright most of its publications, he made a statement to the effect that they did not own more than one-ninth or one-tenth per cent of all their publications, but could not say how many publications it amounted to. As a matter of fact, as far as my knowledge goes, I understand that Schirmer & Co., who was represented at the hearing by Mr. Tindale, own outright most of their publications. I am attorney for many authors and composers, and I know that when they need money they take their composition to a publisher and he will pay them a small amount--$25 to $100--for a musical composition, and no matter what the income may be, whether it is $25,000 or $100,000, these music publishers are not philanthropists enough to hand any additional sum to such author or composer. The statement has not been denied that Mr. Arthur W. Tams has purchased of the various music publishers publications of secular works, such as oratorios, cantatas, masses, and octavo choruses amounting to three to four thousand dollars per annum, and he has since ascertained that it was nearer $5,000 per annum, and that this has been going on for the past fifteen years. These publishers knew the nature of his business and have never interfered with the renting thereof. I believe it has already been stated that these publications were bought by Tams as a convenience to the various church choirs, schools, and vocal societies who rent and perform the same without profit, and that it takes five years or more for Mr. Tams to get back the amount which it cost him for the publication. It is conceded that Mr. Tams is the proprietor of the largest music library in the world, and that his profit is derived from publications of his own of which he can print any number of thousands of copies at a cost to him of from 1 to 2 cents apiece, and that in addition thereto that he rents operas and other plays belonging to him which are being produced for profit and on which royalty is paid by him, and it was on account of the pressure of his various customers throughout the United States that he did bother with buying the publications of religious or secular works, such as oratorios, cantatas, masses, and octavo choruses for the purpose of renting the same to church choirs, schools, and vocal societies that performed the same without profit. Mr. Tams is willing that libraries should not be permitted to rent the same, provided that it shall refer to future and new works, in which case he would not need to buy the publications and have them on hand for that purpose. It is an extraordinary claim on the part of the music publishers to say that, while they admit that when they sell copies of their publications it carries the performing rights with the copies sold, yet the music publishers claim it only carries these performing rights to such persons who purchased the same from them, and that these books which have been purchased from them can not be used for performance by any other society to whom they may be loaned or rented by the society or person purchasing the same originally. Take any patented article, like a sewing machine; one who has bought it clearly has a right to lend it to another, to sell it, or to rent it without any infringement on the rights of the patentee, but when he attempts to manufacture the same that is another question, just the same as if Mr. Tams or any other purchaser of books from the music publishers would attempt to reprint them. This would be clearly wrong; but as long as this is not done and the books have once been paid for, how can the music publishers, composer, or author be wronged if it was performed by A., B., and C., so long as these very books have been purchased and paid for originally? It seems to me that section 4966 of the copyright law should not be permitted to be used as a club by some of the unscrupulous music publishers in any case where they hear that one of their publications is to be performed by one of our schools or a church or a vocal society for the purpose of charity and without profit, and threaten them by imprisonment and damages. The imprisonment clause seems to be a most obnoxious and unjust clause, and not inserted for any good to society. It seems that the music publishers, authors, and composers got along swimmingly prior to the adoption of the statute, section 4966 of the copyright law, and it is admitted that either the whole act should be eliminated or an amendment made by which these poor societies should not be held up in the case where the books have been paid for. They should be permitted to rent to each other or borrow from each other or buy from each other the books which have originally been bought of the music publishers, and the music libraries that have purchased the books from the various music publishers should be protected to date on such publications, if it should seem, in the wisdom of the Committee on Patents, that they should not be permitted hereafter to rent them. The music libraries of the country to these poor societies are a blessing and are actually necessary, as they act as a clearing house, as, for instance, one society in St. Louis might wish to use a copyrighted work, such as Hiawatha's Wedding Feast, and if the various other societies in the neighborhood do not own copies of this particular work, it is necessary for a music library to be in existence that can furnish the work desired, and which at the time might be unobtainable from a sister society, or any society owning the work desired, as they might be using it at the time themselves, and there is absolutely no wrong in the renting of publications by these libraries of books which they have purchased, and they should not be prevented from renting them to the various societies for the reason that they have once been bought and paid for, and there can not be any profit derived therefrom by their renting it, as it has already been argued that it takes about five or six years to obtain the return of the cost of the publication, and that at the end of such time the books become useless from the handling they have received and have to be thrown away, as each society performs only one publication each year. The publishers themselves are among the largest customers of the music libraries, and have at various times arranged with the Tams Library to make at his own expense orchestrations to their various works, and hold them in stock, so as to have them available for the use of the publishers, so that if a customer of a publisher desired to purchase a large number of copies of any particular work that purchase would be contingent on the ability of the purchaser or publisher to obtain the orchestra parts (which are in manuscript), and publishers have been writing to their customers, after selling a lot of vocal scores, that they, the customers of the publishers, could obtain the orchestra parts to the various works desired at Tams's library, and we have letters from various publishers, Ditson, Schirmer, and others, to prove this, and the publishers themselves, in many instances, before selling one of their customers a particular work, would send to Tams's library and obtain from him the orchestra parts to send to accompany the goods sold, and in many instances had notified Tams that they proposed to sell a particular work and desired to know if he wished to furnish the orchestra parts to the same. In conclusion it is urged that the Committee on Patents should render immediate relief by recommending the amendment, or some amendment, favorably on which immediate action by the House may be taken in the passage of the same. We submit that the matter of the passage of the amendment should not be delayed on the pretense that the same can be inserted and taken care of in the general codification of the copyright law, for it seems on a casual perusal thereof that there are many imperfections and unfair and unjust discriminations therein and that it is safe to say that it will take some time to come before it can be reported if it will be reported at any time. Although the Bennet bill has been introduced in January, we have received no invitation to attend any of the conferences in the preparation of the codification of the copyright law, and knew nothing of the kind being contemplated until we arrived at Washington for this hearing, and it is safe to say that there are a great number of others interested in the copyright law who have been ignored. It is therefore respectfully submitted that action on the Bennet amendment should not be delayed, but that relief should be granted at this session. Respectfully submitted. HERMAN FROMME. _287 Broadway, New York City. Counsel for F. N. Innes, of Chicago, Ill.; The A. W. Tams Music Library, of New York, and George Lowell Tracy Music Library, of Boston, Mass._ _Brief in opposition to H. R. 11943 to amend the copyright law respecting public performance of musical works._ On behalf of the Music Publishers' Association of the United States, the following is submitted supplementing the hearings already had on H. R. 11943, "A bill to amend title 60, chapter 3, of the Revised Statutes of the United States, relating to copyrights." The music publishers and the composers of music whom we represent are opposed to the bill, which in effect provides for the public performance of religious and secular works of a musical character without first obtaining consent therefor from the copyright proprietor. PROPERTY RIGHTS OF COMPOSERS. The laws of the United States have recognized two distinct property rights in a musical composition that has been copyrighted. 1. The copyright proprietor has the exclusive right to reproduce copies of the original work. This he may assign in toto or with any limitations he may choose to impose on such assignment. 2. The copyright proprietor has the exclusive right of public performance of the copyrighted work. This right also may be assigned in part or in toto. The United States has adopted these provisions from the English copyright laws, as have most of the other Christian nations. Under English statutes-- "The right to present and perform a dramatic piece or musical composition is a right distinct from the copyright in a book containing or consisting of such dramatic piece or musical composition, and no assignment of the copyright of any such book conveys any right of representation or performance unless so specified; and by the twenty-second section of 5 and 6 Vict., chap. 45, an entry of every such assignment should be made in the registry book." (Copyright Office Bulletin No. 5.) This is in accordance with the modern idea of copyright protection and seems to be fully justified. For why should the exclusive right of performance be denied to the creator of the work if he is to enjoy any exclusive rights because of his contribution to the knowledge and usefulness of mankind? Under the common law this right certainly belongs to him, and he can be deprived of it only by voluntary or involuntary assignment. A QUESTION OF CONTRACT. The whole question presented by the proposed amendment to section 4966 of the Revised Statutes seems to be one rather for the court than for Congress to determine. Either the copyright proprietor has or he has not the exclusive right of public performance. If he has it the next question is, Has he assigned any part of it by the sale of a book or any number of books containing his copyrighted musical conception, unless somewhere he has "so nominated in the bond?" The English law requires that the right of performance must be expressly specified in the contract. This is clearly in exact harmony with the principle of "caveat emptor," under which all other purchases are made in our country and in England. The proprietor of the musical library, if he desires, may purchase the right of general public performance when be buys his books. If he simply buys the books without specifying that general right, he is getting all his contract calls for and all he has paid for. Our laws do not require that there shall be a notice of express reservation of this right in order to reserve control of it to the copyright proprietor, but some of our publishers have put such notices in their publications, and this association of publishers has recommended that a requirement of such notice be made a part of our copyright law. NO LEGISLATION NEEDED. No legislation is needed in this matter unless you intend to deprive the composer or his assignee of the right to control the public performance of his work. Should this be done it will lessen the value of the composer's efforts and of necessity restrict the production of important musical works because of less encouragement to the composer, and consequently restrict the business of all the trades now employed in supplying it to the public. The 6,000 retailers of music, as well as the composers and the 500 publishers of musical works in our land, are vitally interested in whatever tends to deprive them of their occupation and its compensation. In the face of what all other enlightened nations are doing to protect, encourage, and reward the genius of their countrymen, will the United States take this backward step and thereby begin to discourage the tardy development of its citizens in musical learning and progress? INTERNATIONAL COPYRIGHT TREATY. Previous to the international copyright treaty of 1891 few works of American composers were on the market, because the foreign works monopolized the trade. Since then our composers have been on an equality at home with the foreign works, and the rewards have been more equitably distributed to American composers, as our people have spent more of their money at home for music. The result is seen in the schools and colleges of music in America, more eminent teachers, and much better training for our students, who can now obtain at home the same grade of instruction they formerly received in European conservatories. VALUE TO THE UNITED STATES. All of this has been of great value to us as a nation, not only in the highest sense, but from the purely selfish view of financial profit. Therefore our composers should be considered and protected in their compensation, which comes solely from the sale of their works under the prevailing methods of trade. When a work is rendered many times from one purchase of books there is but small return to the creator of it; consequently for this privilege a higher price should be demanded than if the book is purchased for home use or for a few performances. DAMAGES THREATENED BY BILL. While each work costs the same labor and expense to prepare for publishing, yet it is admitted that not more than from two to three out of each one hundred are successful, and not more than one in twenty of them ever pay for the cost of printing. When limited first editions cost from $5,000 to $15,000 to bring out, it can readily be seen why the publishers are so active in trying to protect their clients, the composers, and their own interests, so covertly threatened by this bill. If this bill becomes a law they will be obliged to adjust their business to the change, and no doubt the better composers will be driven to adopt the methods of the dramatists and deny all use of their works to the public at large. Shakespeare says, "The man that hath no music in himself is fit for treason, stratagems, and spoils." The love of music has from the dark ages been the inspiration for all progressive peoples. It is earnestly hoped that your committee will not lend itself for the advancement of any measure which is not primarily designed to encourage and foster the best ability of the American composer. Respectfully submitted, A. R. SERVEN, _Attorney for the Music Publishers' Association of the United States_. May 8, 1906. MCGOWAN, SERVEN & MOHUN. _1419 F Street NW., Washington, D.C._ NEW YORK, _May 8, 1906_. THE CHAIRMAN AND COMMITTEE ON PATENTS, _Washington, D.C._ GENTLEMEN: At the recent hearings on the Bennet bill, the music publishers were represented, and the committee, of course, represented the interests of the people. There was, however, one party at interest in the matter who was not represented. That party is the American composer, and it is in his behalf that we ask you to please consider a few words. The effect of this amendment would be to put the American composer out of business, so far as the writing of serious or important works is concerned. It would be our saying to him: "You are good enough for writing coon songs and a few rag-time pieces, but we don't want you to attempt anything better. We don't want American composers; we prefer to use what is written in Germany, France, Italy, Russia." The amendment under consideration seeks to remove the present copyright protection from religious works; and in the hearing which your committee was kind enough to give last week, frequent mention was made of charitable work and entertainments given by churches, poor singing societies, and our poverty-stricken public schools. From certain questions asked by members of the committee it was indicated that they might favor a compromise measure in which, by exception, the renting of copyrighted musical works would be legalized in the case of entertainments given by religious bodies or not given for profit. We yield to no one in reverence toward religious matters, and trust that what we shall say will not be misconstrued, but religious bodies first of all should be and are noted for dealing justly with all men. They have taught us that "the laborer is worthy of his hire;" and next to observance of divine laws they advocate obedience and respect to human laws. It would seem, therefore, that churches do not need nor do they ask for anyone to exploit his own business under the guise of obtaining for the church the right to do what it is unlawful for others to do. In seeking to give this exemption to churches, societies, etc., a serious matter is that we entirely forget and lose sight of the musical composer or author, who, in most cases, is not a rich man. It is about the composer that we wish to say a few words. To illustrate what we should like to say, we ask you, Mr. Chairman and the committee, to picture the fact that a certain church or society has prepared to publicly perform on a certain date a work of average size, costing, say, 40 cents each copy. The average number of copies required for such performance is about 30 copies, making a total outlay of $12, of which $1.80 accrues to the composer as royalty for the performing rights. Instead of buying the music, we find that for economy the church has been persuaded to hire or to borrow copies that have been used elsewhere. Imagine the large and well-dressed audience assembled on the night of the performance. Listen to the delicate arias, the grand choruses, the pealing organ, and notice the swelling enthusiasm of the people during some of the climaxes. Picture this brilliant and enjoyable scene, but let us also not forget the one man whose brain and heart created this music and made the entertainment possible. The pittance of $1.80 which he would receive is all too small; but such as it is, it should not be taken from him. When copies of the music are rented or borrowed and not bought, all the composer gets is glory and applause. Now, glory is all well enough, and applause to most men is sweet. But we wish to say to you, gentlemen, that glory alone will not put a coat on that man's back; it will not help him to protect his wife; nor will glory alone clothe and feed his children. Furthermore, and in closing, in giving the above supposed entertainment a fair admission price has been charged, or in lieu of a fixed admission the plate has been passed; and few of us would care to listen to the music and neglect the opportunity to contribute. So that we may say that there is practically no such thing as performances of this kind without a revenue. In giving such an entertainment everything else is paid for. The light and heat are paid for, programmes are paid for, parties from whom the books are rented are paid, the organist--even the sexton is paid--but not the composer. We, the signers of this paper, do not believe that American churches are so poor, or American societies ever so needy as to make this injustice necessary; and it is hoped that your committee in protecting the American people will also at the same time not forget fair play toward the American composer. VICTOR HERBERT, _Composer_. REGINALD DEKOVEN, _Composer_. BRONSON HOWARD, _Author and Playwright_. HARRY ROWE SHELLEY, _Composer and Organist_. _Constitution and by-laws of the Music Publishers' Association of the United States._ CONSTITUTION. ARTICLE I. This organization shall be known as the Music Publishers' Association of the United States, and shall have for its object the uniting of the music publishers of the United States for their own interest and the general welfare of the music trade. ART. II. The officers of this association shall consist of a president, vice-president, secretary, and treasurer, and an executive committee consisting of five members, who shall be elected at each annual meeting, to serve one year from the date of their election, or until their successors are elected; and the president and secretary shall be members of the executive committee ex officio. ART. III. There shall be an annual meeting of the association, for the election of officers and the executive committee and the transaction of business, on the second Tuesday of each month of June, at such place as may be determined upon. All elections shall be by ballot, and the votes of a majority of the members present shall constitute a choice. ART. IV. Each member, whether an individual or firm, shall be entitled to one vote, and ten members shall constitute a quorum for the transaction of business. ART. V. This constitution may be altered or amended by a two-thirds vote of the members present. BY-LAWS. ARTICLE I. The president, and in his absence the vice-president, or in the absence of both a chairman selected by a majority of those present, shall preside at all meetings of the association. ART. II. The secretary shall keep a record of the proceedings of every meeting, give necessary notices of meetings, receive all moneys and pay the same over to the treasurer and take his receipt therefor, and perform such other duties as pertain to his office. ART. III. The treasurer shall take charge of the funds of the association and disburse the same by order of the association signed by the president, and shall make a report of his receipts and disbursements at the annual meeting subsequent to his election. ART. IV. The executive committee shall transact all necessary business in the interval between the annual meetings of the association. ART. V. Any music publisher or firm of music publishers in good standing in the United States is eligible to membership, and may become a member by making application through the secretary, upon payment of $10 and receiving a majority of votes of those present at the annual meeting. The executive committee shall have the power to admit members during the period intervening between the annual meetings, subject to the approval of the association at its next annual meeting. ART. VI. The regular dues of this association shall be $10 annually, payable on or before November 1 of each year, and no member in arrears shall be entitled to vote or participate in the meetings. _Members Music Publishers' Association, June, 1905 to 1906._ Albright Music Company, Chicago, Ill. Anthony Brothers, Fall River, Mass. Ascher, Emil. 24 East Twenty-first street, New York. Biglow & Main Company. 135 Fifth avenue, New York. Bloom, Sol., Forty-second street and Broadway, New York. Boosey & Co., 9 East Seventeenth street, New York. Bouvier, A. J., Fall River, Mass. Chandler-Held Company, 439 Fulton street, Brooklyn, N.Y. Ditson, Chas. H., & Co., 867 Broadway, New York. Ditson, J. E., & Co., Philadelphia, Pa. Ditson, Oliver, Company, Boston, Mass. Ellis, Jno. F., & Co., Washington, D.C. Feist, Leo, 134 West Thirty-seventh street, New York. Fischer, Carl, 6 Fourth avenue, New York. Fischer. J., & Bro., 7 Bible House, New York. Frain Publishing Company, 20 West Fifteenth street, New York. Francis, Day & Hunter, New York. Goggan, Thos., & Bro., Galveston, Tex. Gordon, H. S., 1241 Broadway, New York. Groene, J. C., & Co., Cincinnati, Ohio. Hald, J. R., Company, 337 Wabash avenue, Chicago, Ill. Harms, T. B., Company, 126 West Forty-fourth street, New York. Harris, Chas. K., 31 West Thirty-first street, New York. Haviland, F. B., Publishing Company, 125 West Thirty-seventh street, New York. Jacobs, Walter, 165 Tremont street, Boston, Mass. Lyon & Healey, 199 Wabash avenue, Chicago, Ill. Mills, F. A., 48 West Twenty-ninth street, New York. Molineux, Geo., 150 Fifth avenue, New York. Movello, Ewer, & Co., 21 East Seventeenth street, New York. Parks, J. A., Company, York, Nebr. Paull, E. T., Music Company, 46 West Twenty-eighth street, New York. Remick, J. H., & Co., 45 West Twenty-eighth street, New York. Rohlfing Sons Music Company, Milwaukee, Wis. Schmidt, Arthur P., 146 Boylston street, Boston, Mass. Schuberth, E., & Co., 11 East Twenty-second street, New York. Sherman, Clay & Co., San Francisco, Cal. Stern, J. W., & Co., 34 East Twenty-first street, New York. Summy Company, Clayton F., Chicago, Ill. Swisher, M. D., 115 South Tenth street, Philadelphia, Pa. Thiebes-Stierlin Music Company, St. Louis, Mo. Thompson, C. W., & Co., 13 West street, Boston, Mass. Thompson Music Company, 269 Wabash avenue, Chicago, Ill. Vandersloot Music Company, Williamsport, Pa. Victor-Kremer Company, Chicago, Ill. White-Smith Music Publishing Company, Boston, Mass. White-Smith Music Publishing Company, Chicago, Ill. White-Smith Music Publishing Company, 13 East Seventeenth street, New York. Witmark, M., & Sons, 144 West Thirty-seventh street, New York. Witzmann, E., & Co., Memphis, Tenn. Wood Music Company, The B. F., Boston, Mass. York Music Company (A. Von Tilzer, manager), New York. 
12235	----	provided by the Million Book Project. POPULAR LAW-MAKING A STUDY OF THE ORIGIN, HISTORY, AND PRESENT TENDENCIES OF LAW-MAKING BY STATUTE BY FREDERIC JESUP STIMSON PROFESSOR OF COMPARATIVE LEGISLATION IN HARVARD UNIVERSITY "NOW, MY LORD, I DO THINK, THAT PRACTICE AND USAGE IS A GREAT EVIDENCE OF THE LAW."--CHIEF JUSTICE HOLT, IN "THE GREAT CASE OF MONOPOLIES."--7 STATE TRIALS, 497 1911 TABLE OF CONTENTS I. THE ENGLISH IDEA OF LAW Proper Field of Legislation; Meaning of the Word "Law,"; Modern Importance of Statute Law; Representative Government and the Right to Law; Enforcement of the Common Law; Origin of Representative Legislatures; Customary or Natural Law; No Sanction Necessary; The Unwritten Law and Outlawry; Early Parliament Merely Judicial; Contrast of Common Law with Roman Law; Theory that the King Makes Law; Parliament Retains the Right to Tax; Parliament Recovers Legislative Powers. II. EARLY ENGLISH LEGISLATION AND MAGNA CHARTA Constructive Legislation a New Idea; Statutes Increase of Late Years; Sociological Legislation only Considered; Early Legislation Political; English Law not Codified; Early Anglo-Saxon Laws; Freedom Gained in Guilds; Threefold Division of Government; No Constitution Controls Parliament; Restoration of English Law After the Conquest; Taxation by Common Consent; Earliest Social Statute; Recognition of Personal Property; Law of Land Tenure; The Charter of Liberties; Early Methods of Trial; Distinction Between Sin and Crime; Church Law Governs Sin; Important Clauses of Magna Charta; Freedom of Trade; Taxation for the Common Benefit; The Great "Liberty" Clause; "Administrative" Law not English; No Government Above Law. III. RE-ESTABLISHMENT OF ANGLO-SAXON LAW. Common Law Against Civil Law; "We Are Unwilling to Change the Laws of England;" Usury and the Jews; Towns Represented in Parliament; The Fixing of Prices; Sumptuary Laws; The Benefit of Clergy; Partial Codification; The Statute of Westminster I; Law Extended to All People; Labor Makes Men Free; The Freedom of Elections; "Cruel and Unusual Punishment"; Sexual Offences Made Secular Crimes; Earliest Duties on Imports; Early Duties on Wool; The Law of Wrecks. IV. EARLY LABOR LEGISLATION, AND LAWS AGAINST RESTRAINT OF TRADE AND "TRUSTS" Extortion and Discrimination; Forestalling, Regrating, Engrossing; The Statute of Bakers; Origin of Law of Conspiracy; The Law of Combination; The Modern Definition; Combinations Against Individuals; Intent Makes the Guilt; Conspiracy More Heinous than the Act Committed; Combinations to Injure Trade; Individual Injuries to Business; Definition of Forestalling; "The Iowa Idea"; The Statutes of Labor; First Statute of Laborers; A Fixed Wage; Early Law of Strikes; Early Law of Trades-Unions; Labor Conditions in Early Times; Combinations to Fix Prices; Unlawful By-Laws of Unions; Restraint of Trade; The Eight to Labor; The Earliest Boycott; Origin of the Injunction in Labor Cases; The Common Law Vindicated; Compulsory Labor in England; Free Trade to Merchants; Jealousy of Chancery Power; Guilds and Corporations; Chancery and the Star Chamber; By-Laws Tending to Monopoly; Hours of Labor Laws; Idlers and Vagabonds; Trusts and Labor Combinations; Riots and Assemblies; The Statute of Elizabeth; Early Labor Regulations; The First Poor Law; The First Complaint of Monopolies; Growth of Monopolies; The Statute of Monopolies; The Impeachment of Monopolists. V. OTHER LEGISLATION IN MEDIAEVAL ENGLAND The Statute of Mortmain; The Law Merchant; Origin of Habeas Corpus; Early Police Regulation; Opposition to Customs Duties; Interpretation of the Great Charter; Statute Against Chancery Jurisdiction; Early Tariffs on Wool; The English Language Replaces French; Freedom of Trade at Sea; Laws of the Staple; Early Food Laws Forbidding Trusts, etc.; The Statutes of Dogger; Department Stores and Double Trading; Freedom of Trade Restored; Jealousy of the Roman Law; Laws Against Scotch, Welsh, and Irish; Injunctions Issued Against Seduction; The First Statute of Limitations; Personal Government Under Henry VIII; Laws Against Middlemen; Final Definitions of Forestalling, Regrating, Engrossing; The First Poor Law and Forestry Law; The First Trading Corporations; The Heresy Statutes; James I, Legislation Against Sins; Cromwell's Legislation; The First Business Corporation; Corporations Invented to Gain Monopoly; Growth of the Trade Guilds; Veterans' Preference Legislation. VI. AMERICAN LEGISLATION IN GENERAL. Early Increase of State Legislation; The State Constitutions; When Statutes Should Be Unconstitutional; Effect of the Initiative and Referendum; The True Value of Precedent. VII. AMERICAN LEGISLATION ON PROPERTY RIGHTS Proper Classification of Statutes; Anarchism, Individualism, Socialism; Definition of Communism; Definition of Nationalism; Property a Constitutional Right; Not a Natural Right; Socialism Unconstitutional; Eminent Domain; What Are Public Uses; Irrigation, Drainage, etc.; Internal Improvements; Bounties; Exemptions from Taxation; Limits Upon Tax Rate; Income Taxes; Inheritance Taxes; License Taxes; Betterment Taxes; Double Taxation; The Police Power; Government by Commission; Noxious Trades, Signs, etc.; Modern Extensions of Police Power; Pure Food and Drug Laws; Prohibition Laws; Oleomargarine Laws; Examinations for Professions; Christian Science and Osteopathy; Trading Stamps and Department Stores; Usury Laws; Negotiable Instrument Laws; Bills of Lading and Warehouse Receipts; Sales in Bulk; Intestate Succession; Laws for Protection of Debtors; Mechanics' Lien Laws; Mortgage Foreclosures; Nuisances; The Buying of Futures; Tips and Commissions; Weights and Measures; Laws Against Middlemen. VIII. REGULATION OF RATES AND PRICES Laws Fixing the Rate of Wages; Wages in Public Work; Logic of Rate Regulation; The Granger Cases; Theory of Rate Regulation; Regulation by the States; Constitutional Difficulties of Rate Regulation; The Railway Rate Act of 1910; The Long and Short Haul Clause. IX. TRUSTS AND MONOPOLIES The Trusts at Common Law; The Sherman Act; State Laws Against Trusts; Federal Incorporation; Other Remedies of the States; Class Legislation and Organized Labor; Recent Decisions and Laws Against Trusts; Constitutional Provisions Against Trusts; Growth and Decline of Anti-Trust Legislation; Best Remedy for Trusts; Only Three Courses Possible; Centralization and Federal Control. X. CORPORATIONS History of Trading Corporations; Two Theories of Corporation Law; The Massachusetts Commissioners' Report; The Payment Up of Stock; The Massachusetts Law; The "Business Corporation" Act; Corporation Laws of All the States; Publicity and Other Remedies; Laws Regulating "Holding" Companies and Stock Ownership by Corporations; Corporations of Other States; States May Exclude; Summary of the Trust Question; Public Service Companies. XI. LABOR LAWS English Law Does not Enforce the Labor Contract; Freedom to Trade and Labor; Sources of Reform Legislation; Constitutional Difficulties; Minimum Wage Laws; The Rate of Wages in Public Work; Equal Wages for Women; The New York Constitutional Amendment; Hours of Labor Laws for Men; Hours of Labor Laws for Women; Prohibited Employments to Women; Hours of Labor of Children; Laws of All the States To-day; Hours of Labor in Factories, etc.; Child Labor Prohibited; Hours of Labor in Mines; Age Limit for Child Labor, Dangerous and Immoral Trades, Protection of Young Girls, Labor in Mines, Hours of Labor in Peculiar Trades, The Constitutional Difficulty, Farms and Domestic Labor, Continental Legislation, Sanitary Restrictions on Female Labor, Sweatshop Laws, The Factory Acts, Employers' Liability, Anti-Truck Legislation, Factory Stores and Dwellings, Benefit Funds and Compulsory Insurance, The Régime of Contract, Compulsory Labor and Peonage, Statutes Against Intimidation, Blacklists, Picketing, Armed Guards, Political and Militia Duties, Miscellaneous Matters, Profit-Sharing, etc., Discrimination Against Union Labor, Twenty Years of Labor Legislation, Foreign Labor Legislation, Employers' Liability, Old Age Pensions, Minimum Wage Laws, Co-operation and Profit-Sharing, Arbitration Laws, Labor Legislation in Europe. XII. COMBINATIONS IN LABOR MATTERS The Law of Combination and Conspiracy, Intent the Test, The English Conspiracy Act, Modern Reforms Desired by Organized Labor, Boycotts and Blacklists, Intimidation, Interference with Political Rights, The Oklahoma Labor Code, European Law of Combination. XIII. MILITARY AND MOB LAW, AND THE RIGHT TO ARMS The Right to Civil Law, Martial Law, Military Law, The Right to Arms, Military Service, The Struggle Against Martial Rule in England, Standing Armies, Mobs, Riots, Lynching, The Use of the Army in Labor Troubles, XIV. OF POLITICAL RIGHTS The Right to Assembly and Free Elections; The Suffrage, 28; The Force Bills; Interference with Voting; Bribery and Corrupt Practices; Lobbying Acts; The Form of the Ballot; Direct Primaries and Nominations; The Distrust of Representative Government; Corrupt Elections Laws; Direct Election of U.S. Senators; Women's Suffrage; Municipal Elections, The Initiative, Referendum, and Recall; The Judicial System. XV. OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS Freedom of Speech and of the Press; The "Unfair" List; Prohibition of Anarchistic Propaganda; The Right to Privacy; Search Warrants and Self-Incrimination; Religious Rights. XVI. LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS The Race Question; Races Capable of Citizenship; The War Amendments and Their Effect; The Negro's Social and Property Rights; The Privileged Classes. XVII. SEX LEGISLATION, MARRIAGE AND DIVORCE A Woman Is a Citizen; Her Right to Labor and Property; Marriage, Divorce, and Children; Women in Politics and Education; Reform of Divorce Procedure; Uniformity of Law in Divorce; The Secular Law in Sexual Matters; Marriage a Contract; The "Single Standard" and Free Divorce; Control of Marriage by the State; Recent Legislation; Radical Statutes in Sexual Matters; Legal Separation; The Married Woman's Privileges; The "Age of Consent"; Female Suffrage by Property-Owners; Kidnapping, Curfew, Rape; Statistics of Divorce; Industrial Liberty of Women; Female Labor in England and U.S.A. XVIII. CRIMINAL LAW AND POLICE Common Law Prevails; New Crimes and Penalties; Self-Regardant Actions; Reform in Punishment; Procedure in the Courts; Lynching and Mob Law; Interstate Commerce in Liquor, etc.; Physicians' Privilege; Prohibition Laws; City Ordinances; Juvenile Courts and Laws; Present Needs. XIX. OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE PUBLIC DOMAIN Government by Commission; Taxes, Debt, and Franchises; Municipal Socialism; Internal Improvements; State Farms and Forests; Education; Taxation and State Aid; Present Questions. XX. FINAL The Form of Our Statutes; Need of Authorized Revisions; Reforms Recommended; Indexing and Arrangement; Need of a Parliamentary Draughtsman; Recommendations of the State Librarians; Purpose of this Book. INDEX POPULAR LAW-MAKING I THE ENGLISH IDEA OF LAW My object in the lectures upon which this work is based was to give some notion of the problems of the time (in this country, of course, particularly) which are confronting legislators primarily, political parties in the second place, but finally all good citizens. The treatment was as untechnical as possible. The lectures themselves were for men who meant to go into business, for journalists, or political students; a general view--an elemental, broad general view--of the problems that confront legislation to-day. So is the book not one for lawyers alone; it seeks to cover both what has been accomplished by law-making in the past, and what is now being adopted or even proposed; the history of statutes of legislation by the people as distinct from "judge-made" law; how far legislatures can cure the evils that confront the state or the individual, and what the future of American legislation is likely to be. Constitutional difficulties I had merely mentioned, as there was another course of lectures on American constitutional principles, which supplemented it.[1] In those I tried to show what we _cannot_ do by legislation; in these I merely discussed what had been done, and tried to show what we are now doing. What we may _not_ do may sound, perhaps, like a narrow field; but the growth of constitutional law in this country is so wide--in the first place including all the English Constitution, and more than that, so many principles of human liberty that have been adopted into our Constitution, either at the time it was adopted, or which have crept into it through the Fourteenth Amendment, with all the innovations of State constitutions as well--that really the discussion of what _cannot_ be done by statute takes one almost over the entire range of constitutional law and even into the discussion of what cannot be done in a free country or under ordinary principles of human liberty. [Footnote 1: "The Law of the Federal and State Constitutions of the United States," Boston Book Company, 1908. "The American Constitution," Scribners, New York, 1907.] How many of us have ever formulated in our minds what _law_ means? I am inclined to think that the most would give a meaning that was never the meaning of the word _law_, at least until a very few years ago; that is, the meaning which alone is the subject of this book, _statute_ law. The notion of law as a _statute_, a thing passed by a legislature, a thing enacted, made new by representative assembly, is perfectly modern, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have assumed in our minds the main bulk of the concept of law as we formulate it to ourselves. I guess that the ordinary newspaper reader, when he talks about "laws" or reads about "law," thinks of statutes; but that is a perfectly modern concept; and the thing itself, even as we now understand it, is perfectly modern. There were no statutes within the present meaning of the word more than a very few centuries ago. But statutes are precisely the subject of this book; legislation, the tendency of statute-making, the spirit of statutes that we have made, that we are making, and that we are likely to make, or that are now being proposed; so it is concerned, in a sense, with the last and most recent and most ready-made of all legal or political matters. The subject of statute-making is not thought difficult; it is supposed to be perfectly capable of discussion by any one of our State legislators, with or without legal training; and sometimes with lamentable consequences. For the subject is of the most immense importance, now that the bulk of all our law is, or is supposed to be, statutes. In order to understand, therefore, what a statute is, and why it has grown important to consider statute-making, it is necessary to have some knowledge of the meaning of the word _law_, and of the origin both of representative government and of legislatures, before we come to statutes, as we understand them; for parliaments existed centuries before they made statutes as we now use this word. _Statutes_ with us are recent; _legislatures_ making statutes are recent everywhere; legislatures themselves are fairly recent; that is, they date only from the end of the Dark Ages, at least in Anglo-Saxon countries. Representative government itself is supposed, by most scholars, to be the one invention that is peculiar to the Anglo-Saxon people. And there is another invention--if we can call it one--to my mind of far greater importance, which I should urge was also peculiar to the Anglo-Saxon people; that is, the invention or the idea of personal liberty; which is understood, and always has been understood, by Anglo-Saxons in a sense in which it never existed before, so far as I know, in any people in the history of the world. It is that notion of personal liberty which was the cause of representative government, not representative government that was the cause of personal liberty. In other words, the people did not get up a parliament for the sake of having that parliament enact laws securing personal liberty. It was the result of a condition of personal liberty which prevailed among them and in their laws that resulted in representative government, and in the institution of a legislature, making, as we now would say, the laws; though a thousand years ago they never said that a legislature _made_ laws, they only said that it _told what the laws were_. This is another very important distinction. The "law" of the free Anglo-Saxon people was regarded as a thing existing by itself, like the sunlight, or at least as existing like a universally accepted custom observed by every one. It was five hundred years before the notion crept into the minds, even of the members of the British Parliaments, that they could make a _new_ law. What they supposed they did, and what they were understood by the people to do, was merely to _declare_ the law, as it was then and as it had been from time immemorial; the notion always being--and the farther back you go and the more simple the people are, the more they have that notion--that their free laws and customs were something which came from the beginning of the world, which they always held, which were immutable, no more to be changed than the forces of nature; and that no parliament, under the free Anglo-Saxon government, or later under the Norman kings, who tried to make them unfree, no king, could ever _make_ a law, but could only declare what the law was. The Latin phrase for that distinction is _jus dare_, and _jus dicere_. In early England, in Anglo-Saxon times, the Parliament never did anything but tell what the law was; and, as I said, not only what it was then, but what it had been, as they supposed, for thousands of years before. The notion of a legislature to make _new_ laws is an entirely modern conception of Parliament. How did it arise? The English Parliament,[1] as you doubtless know, was the successor, or grew out of the old Witenagemot, the old Saxon Great Council, and that Great Council originally--and I am now talking of centuries before the Conquest--the Witenagemot, included in theory all the free inhabitants of the realm, just as a modern town meeting does. Mind you, they were then tribes, living in "Hundreds." They were not nations, not even states and counties, and in early times it probably was possible to have a popular assembly which should include at least all the warriors, all the fighting men, and consequently all the men whose votes counted. No man who could not fight could share in the government--an historical fact which our suffragists tend to ignore when they talk of "rights." The Witenagemot, undoubtedly, was originally a universal assembly of the tribe in question. But as the tribes got amalgamated, were associated together, or at least localized instead of wandering about, and particularly when they got localized in England--where before they had been but a roaming people on account of their struggles with the Britons--the necessity of greater organization probably became obvious to them at once, and the Witenagemot readily assumed a somewhat more formal form; and that resulted in representation. For we are talking of early England; that is, of the eastern half of what is now England, the Saxon part; obviously you couldn't put all the members even of East Anglia in one hall or in one field to discuss laws, so they invented representation. All the authorities appear to be agreed that there is no prototype for what seems to us such a very simple thing as representation, representative government, among the Greeks or the Romans, or any of the older civilizations of which we have knowledge. It is very surprising that it is so, and I am always expecting that some one will discover, either in the Achaian League or somewhere, that it is not so, that there is a prototype; but there doesn't seem to be any regular system of representative government until you get to Anglo-Saxon peoples. So that was the second stage of the Witenagemot, and then it properly begins to be called the Great Assembly or Council of the people. This representative assembly was then not only legislative, it was also executive, to some extent, and entirely judicial; for we are a thousand years before the notion of the threefold division of government has occurred to any one. The early Saxon Witenagemot, as later the Norman kings tried to, did unite all three functions in themselves. Their main function was judicial; for the reason that there was very little notion as yet of _legislation_, in a people or tribe whose simple customs and simple property demanded very few laws, where the first remedy for any man for any attack on his family or property was the remedy of his own good, right hand. When you really only got into a lawsuit, at least as concerning property, as a result of a killing of somebody or other, albeit in defence of one's own chattels, it is obvious that there need not be much legislation; the laws were too well known, the unwritten law too well enforced. It probably would have surprised the early Englishman if he had been told that either he or anybody else didn't _know_ the law--still more that there was ever any need for any parliament or assembly to tell him what it was. They all knew the law, and they all knew that they knew the law, and the law was a thing that they knew as naturally as they knew fishing and hunting. They had grown up into it. It never occurred to them as an outside thing. [Footnote 1: Gneist, "The English Parliament," and Skottowe, "History of Parliament," perhaps best summarize this view.] So it has been found that where you take children, modern children, at least boys who are sons of educated parents, and put them in large masses by themselves, they will, without apparently any reading, rapidly invent a notion of law; that is, they will invent a certain set of customs which are the same thing to them as law, and which indeed are the same as law. They have tried in Johns Hopkins University experiments among children, to leave them entirely alone, without any instruction, and it is quite singular how soon customs will grow up, and it is also quite singular and a thing that always surprises the socialist and communist, that about the earliest concept at which they _will_ arrive is that of private property! They will soon get a notion that one child owns a stick, or toy, or seat, and the others must respect that property. This I merely use as an illustration to show how simple the notion of law was among our ancestors in England fifteen hundred years ago, and how it had grown up with them, of course, from many centuries, but in much the same way that the notion of custom or law grows up among children. The English had acquired naturally, but with the tradition of centuries, the notion of law a _sexisting_; and that brings us to the next point. Here again we are so confused with our modern notions of law that it is very important not to be misled by them at the beginning. I am quite sure that all the American people when they think of law in the sense I am now speaking of, even when they are not thinking necessarily of statute law, do mean, nevertheless, a law which is enforced by somebody with power, somebody with a big stick. They mean a law, an ordinance, an order or dictate addressed to them by a sovereign, or by at least a power of some sort; and they mean an ordinance which if they break they are going to suffer for, either in person or in property. In other words, they have a notion of law as a written command addressed by the sovereign to the subject, or at least by one of the departments of government to the citizen. Now, that, I must caution you, is in the first place rather a modern notion of law, quite modern in England; it is really Roman, and wasn't law as it was understood by our Anglo-Saxon ancestors. He didn't think of law as a thing written, addressed to him by the king. Neither did he necessarily think of it as a thing which had any definite punishment attached or any code attached, any _sanction_, as we call it, or thing which enforces the law; a penalty, or fine, or imprisonment. There are just as good "sanctions" for law outside of the sanctions that our people usually think of as there are inside of them; and often very much better. For instance, the sanction of a strong custom. Take any example you like; there are many States where marriage between blacks and whites is not made unlawful, but where practically it is made tremendously unlawful by the force of public opinion. Take the case of debts of honor, so-called, debts of gambling; they are paid far more universally than ordinary commercial debts, even by the same people; but there is no _law_ enforcing them--there is no _sanction_ for the collection of gambling debts. And take any custom that grows up. We know how strong our customs in college are. Take the mere custom of a club table; no one dares or ventures to supplant the members at that table. That kind of sanction is just as good a law as a law made by statute and imposing five or ten dollars penalty or a week's imprisonment. And judges or juries recognize those things as laws, just as much as they do statute laws; when all other laws are lacking, our courts will ask what is the "custom of the trade." These be laws; and are often better enforced than the statute law; the rules of the New York Stock Exchange are better enforced than the laws of the State legislature. Now all our early Anglo-Saxon law was law of that kind. And it was not written down for a great many centuries, and even after being first written it wasn't usual to affix any _penalty_; they were mere customs, but of an iron-bound nature--customs that were followed far more devoutly than the masses of our people follow any of our written laws to-day. And their "sanction" was twofold: In the first place, the sanction I have mentioned, universal custom, social ostracism for breach. A second and very obvious sanction, that if you do a thing that I don't like and think is against the law, I am going to knock you down or kill you if I can! That was a sanction, and a perfectly good one; and the question that arose, therefore, was not at all as to penalty for the law-breaker; it was whether there should be a penalty for the law-breaker's being killed. That is the reason they didn't have to have any penalty! In those days if there was a custom that a certain tribe had a certain pasture, and a man of another tribe pastured his cattle in that pasture, the first man would go to him and they would have a fight, and if he killed him he would be, as we say, arrested; then the matter would be inquired into by the kin of the murdered man or neighbors, and if the killer could prove that the murdered man had committed a breach of the law, he went off scot free--so, as a matter of fact he would to-day, if it were justifiable homicide. In other words, it was a question of whether it was justifiable homicide; and that brought in the question what the law was, and it was usually only in that way. For the law was but universal custom, and that custom had no _sanction_; but for breach of the custom anybody could make personal attack, or combine with his friends to make attack, on the person that committed the breach, and then, when the matter was taken up by the members of both tribes, and finally by the Witenagemot as a judicial court, the question was, what the law was; and if it was proved, for instance, that the law was that there _was_ private property in that pasture belonging to the man who committed the murder he went off scot free. That was the working of the old Anglo-Saxon law, and it was a great many centuries before the notion of law changed in their minds from that. And this "unwritten law" perdures in the minds of many of the people to-day. So it was that the Witenagemot--this Great Council of the realm--was primarily judicial, in the first instance always judicial; that is, it never made new laws. It got together to try people for the breach of law; and that incidentally brought up the validity of the old law, and then decided whether old law was valid or not. In a sense, therefore, you see they told what the law was, they announced it; but they never supposed they were making new laws. That was the last thing they intended to do, and the last thing the people would have stood, had they tried it. So much for the growth of law, the origin of Anglo-Saxon law, as we understand it, and for representative government, and for the origin of Parliament. I doubt if there was any giving of new law, anything that we should call _legislation_, made by the English Parliament, then called the Witenagemot, before the Norman Conquest. I have never been able to find any. You find occasional announcements that the men of Kent "shall have their liberties as they used to," and perhaps there will be a statement of what those liberties were, in brief; but it is always clearly meant that they are stating the law as already existing. How, then, did they invent a legislature? The Roman law, the whole Roman system, as you know, was absolutely distinct, and distinct in two great principles which have lasted down really into modern times, and still divide Continental countries from Anglo-Saxon countries. What I call the first great principle is universal law--the principle that no officer of government, no high official, no general, no magistrate, no anybody, can do anything against the law without being just as liable, if he infringed upon a subject's liberty, as the most humble citizen. That is a notion which does not yet exist on the Continent or any part of the world except England and the United States, and the countries or colonies copying after them. In Germany, for instance, Dr. Gierke tells me it exists only partially and by a modern constitution. This is the first great difference; and the second one is the notion that laws are made by the people only, with or without representative government. The notion of law as a custom is Teutonic; but on the Continent the Germans abandoned it. The Roman law was always law more as we moderns think of it; it was an _order_, addressed by the sovereign, or at least by a political superior, to a subject or to a political inferior; addressed in the form of definite writing, that is to say, a statute, and with a sanction, that is to say, a penalty, a threat as to what the sovereign will do if the subject does not obey. That is the universal notion of Roman law, and it has so far affected certain English writers on jurisprudence that I feel almost one should be warned against them. Not that their side isn't arguable, but the weight of English history seems the other way. Austin, for instance, was so much impressed with the notion of law as an order from the sovereign to an inferior that he practically, even when considering the English Constitution, adopts that notion of law, and therefore arrives to some conclusions, as it seems to me, unwarranted, and certainly omits to note a great many things that would be noted had he kept clearly the Anglo-Saxon theory of law in mind. Now the Normans, mind you, had purely Roman law. While they were in Normandy, being in France, they had imbibed or adopted Roman notions of law, perhaps because they were then first civilized. They had lost their old Saxon notions, if they had any, for they were, after all, of the same _race_ as the Saxons. Nevertheless, when they conquered England they brought just as much the notion of the Roman law into England as if they had been Caesar's legions. And that fact must always be borne in mind, and that led to centuries of conflict in the making of English constitutional law. The first thing, of course, that they tried to do, that the Norman kings tried to do, was to use law in the Roman way; that is, to make the law themselves, from the king. For that was another consequence of the Roman law, that not only was it an order by the sovereign power, but that this sovereign power was not in theory a legislature, as it is with us to-day, but the sovereign; in France and the Continental countries laws were made in theory and in practice by the king. So the Normans came over with the Roman notion, in the first place, as to what law was, that it was a written, newly made order of a sovereign, not a thing that had grown up and was part of the lives and customs of the people, but a thing made out of hand by the king; and, secondly, that it was made by the king and not by any legislature. And the first two or three centuries of English parliamentary history were mainly taken up, in the English Parliament, so far as it concerns the subject of our course here, in the contest between Parliament and the king as to who should make law and what law was. It took more than one century for the Parliament, after the Norman Conquest, to revive as a Parliament at all; then when it did finally get together it took two or three centuries before it established the principle that it had anything to do with the making of law. The Norman kings regarded the Parliament as a mere method of getting money from the people, hardly even as a Council when they sought for popular support; and yet it was through the fact that they so regarded Parliament that Parliament was enabled ultimately to acquire the law-making or the legislative power which exists in all our legislatures to-day. The king, in those days, derived his revenue mainly from his own land. It was not necessary for the government to have any revenue except for what we should call the king's private purse. What was wanted for public expense was for two or three well-recognized purposes, all purposes of defence. The old English taxation system was in a sense no system. There wasn't any such thing as taxation. There was the "threefold necessity" as it was called. It was necessary for the king to have money, horses, grain, supplies, etc., to defend the kingdom, and to build forts, and to maintain bridges or defensive works; and that was the only object of taxation in those times. Those were the only "aids"--they were called "aids"--those were the only aids recognized. The first word for tax is an "_aid_", granted voluntarily, in theory at least, by the barons to the king, and for these three purposes only. The king's private purse was easily made up by the enormous land he held himself. Even to-day the crown is probably the largest land-owner in the kingdom, but at the time of the Conquest, and for many years afterward, he certainly owned an hundredfold as much, and that gave him enough revenue for his purse; of course, in those days, money for such things as education, highways, police, etc., was entirely out of their mind. They were not as yet in that state of civilization. So the king got along well enough for his own income with the land he owned himself as proprietor. But very soon after the Norman Conquest the Norman kings began to want more money. Nominally, of course, they always said they wanted it for the defence of the realm. Then they wanted it, very soon, for crusades; lastly, for their own favorites. They spent an enormous amount of money on crusades and in the French wars; later they began to maintain--always abroad--what we should call standing armies, and they needed money for all those purposes. And money could yet be only got from the barons, the nobility, or at least the landed gentry, because the people, the agricultural laborers or serfs, villeins, owned no land. Knights and barons paid part of the tax by furnishing armed men, but still, as civilization increased, there was a growing demand on the part of the Norman kings for money. Now this money could be got only from the barons, and under the Constitution--and here we first have to use that phrase--it could only be got from the barons by their consent. That is, the great barons of the realm had always given these aids in theory voluntarily. The king got them together, told them what he wanted, and they granted it; but still it had to come from them, and in the desire to get money the Norman kings first called together the Great Council, first consulted the parliament which afterward became their master. They made a legislature by calling them together, although only for this purpose, to give them the power of getting more money; but when the Great Council was once together and the kings began to be more and more grasping in their demands for money, the barons naturally wanted something on their side, and they would say to them: "Well, yes--you shall have this aid--we will vote you this tax--but the men of England must have such and such a law as they used to under Anglo-Saxon times." And they pretty soon got to using the word "people"; the "people" must have "the liberties they had under Edward the Confessor"; and time after time they would wring from a Norman king a charter, or a concession, to either the whole realm or a certain part of the realm, of all the liberties and laws and customs that they had under the old Saxon domination--and that ultimately resulted in bringing the whole free English law back. Thus, early law was custom; Anglo-Saxon law was _free_ custom; the English lost it under the Conquest; and they got it back because the first Norman kings had to call the council together, which grew into Parliament, which then, in voting their aids or taxes, demanded their "old liberties"; and finally, after getting Magna Charta, after getting all their old Saxon liberties back, by easy transition, they began to say: "We would make certain regulations, ordinances, laws of our own"; though we have not yet got to the time where the notion of making _new_ law, as a statute is now understood, existed. II EARLY ENGLISH LEGISLATION AND MAGNA CHARTA Parliament began avowedly to make new laws in the thirteenth century; but the number of such laws concerning private relations--private civil law--remained, for centuries, small. You could digest them all into a book of thirty or forty pages. And even to Charles the First all the statutes of the realm fill but five volumes. The legislation under Cromwell was all repealed; but the bulk, both under him and after, was far greater. For legislation seems to be considered a democratic idea; "judge-made law" to be thought aristocratic. And so in our republic; especially as, during the Revolution, the sole power was vested in our legislative bodies, and we tried to cover a still wider field, with democratic legislatures dominated by radicals. Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of "isms" and reforms--full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States--the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow. They have gotten over the notion that any parliament, or legislature, or sovereign, should only _sign_ the law--and I say sign advisedly because he doesn't enact it, doesn't create it, but signs a written statement of law already existing; all idea that it should be justified by custom, experiment, has been forgotten. And here is the need and the value of this our study; for the changes that are being made by new legislation in this country are probably more important to-day than anything that is being done by the executive or the judiciary--the other two departments of the government. But before coming down to our great mass of legislation here it will be wise to consider the early English legislation, especially that part which is alive to-day, or which might be alive to-day. I mentioned one moment ago thirty pages as possibly containing the bulk of it. I once attempted to make an abstract of such legislation in early England as is significant to us to-day in this country;[1] not the merely political legislation, for ours is a sociological study. We are concerned with those statutes which affect private citizens, individual rights, men and women in their lives and businesses; not matters of state, of the king and the commons, or the constitution of government. Except incidentally, we shall not go into executive or political questions, but the sociological--I wish there were some simpler word for it--let us say, the _human_ legislation; legislation that concerns not the government, the king, or the state, but each man in his relations to every other; that deals with property, marriage, divorce, private rights, labor, the corporations, combinations, trusts, taxation, rates, police power, and the other great questions of the day, and indeed of all time. [Footnote 1: See "Federal and State Constitutions," book II, chap. 2.] Had it not been for the Conquest, it would hardly have been necessary to have enacted the legislation of the first two or three centuries at all. Its object mainly was political, that is, to enforce Saxon law from Norman kings. No change was made, nothing new was added. There was, however, a little early Saxon legislation before the Conquest. The best compilation is contained in Stubbs's "Selected Charters." He says that the earliest English written laws contained amendments of older unwritten customs, or qualifications of those customs, when they were gradually wearing out of popular recollection. Such documents are generally obscure. They require for their elucidation a knowledge of the customs they were intended to amend. That is as I told you: everybody was supposed to know the law, and early written statutes were either mere compilations of already existing law, slight modifications of them, or else in the nature of imposing various penalties--all of which assume that you know the law already. When they attempted codification, which they did about twice before the Conquest (especially under Edward the Confessor, for that reason he is called the Father of English law, the English Justinian, because he was enough of a civilian to understand what a code was), King Edward made the attempt to get a certain amount of law written out; but even that would be very unintelligible if you tried to read it, for he assumed that one knew it all already, and it also is mainly in the nature of imposing penalties, not stating the law as it was. However, that is called the first English code. All the Saxon laws Dr. Stubbs could find fill only twenty-two pages of his small book; and he says that English law, from its first to its latest phase, has never possessed an authoritative, constructive, systematic, or approximately exhaustive statement, such as was attempted by the great founders of the civil or Continental law, by Justinian or by Napoleon Bonaparte. Now this is true, even to-day, of our English and our American law. That is, the great bulk of the law that is administered in our courts is not "written," it is not in any code. There are, of course, text-books on the subject, but they are of no binding authority. It resides in the learning of the judges. It is what is called court-made law--"_jus dicere_," not "_jus dare_." Our judges are still supposed to tell what the law is, and they sometimes, as the common law is a very elastic thing, have to make new law. That is, if the precise case isn't covered by any previous decision or by any statute, the judge or the court will say what the common law ought to be when applied to that state of facts. So our law is a continually growing law, and largely made still in the old Saxon way, by custom and the judges, and still under the theory that the common law is an existing thing; that the law exists and the judge only expounds. We have never lost sight of that theory. These early Anglo-Saxon laws mostly concern only matters of procedure for the courts, or the scale of punishment. As they assume a knowledge of existing law, they are often hard to understand. Here are some of the laws of Wessex: A.D. 690. WESSEX KING INI. CAP. 11. "If any one sell his own countryman, bond or free, though he be guilty, over sea, let him pay for him according to his 'wer.'" As to "wer." Now there were slaves in England in those days; at the time of the Conquest the Domesday Book reports twenty-five thousand. _Slaves_, I mean; not the unfree agricultural laborers, they were in a higher class, but the regularly bound _slaves_, who were descendants, either of the early British inhabitants or of the Saxons themselves, who had been punished in the courts and had been sentenced into slavery, or men who had voluntarily sold themselves into slavery. For under early Saxon law a man could sell his child into slavery if the child were under seven years old, and above fourteen the child could sell himself. This refers, of course, to that; it is really a kind of predecessor of our Thirteenth Amendment; that is, it forbids slavery; it forbids making new slaves. The word "wer" is the word we have in "wer-wolf," meaning blood; for instance, "weregild" is a man's blood money. Every man had a price from the king down; if a man killed the king he had to pay, we will say, fifty thousand pounds; if a thane, it might be one or two thousand; if an ordinary freeman, one hundred pounds, and so on. CAP. 36. "Let him who takes a thief, or to whom one taken is given, and he then lets him go, or conceals the theft, pay for the thief according to his 'wer.' If he be an ealdorman, let him forfeit his shire, unless the king is willing to be merciful to him." Now the earliest direct legislation about personal property in a statute is as late as 1100; but this early Saxon law was a recognition of personal property, because a man cannot steal a thing unless there is property. This section, therefore, implies property in personalty; because a man cannot steal land; but it never occurred to them to pass a law saying that there _shall be_ private property, because that was the unwritten law that they were all supposed to know. A.D. 890. WESSEX. ALFRED. CAP. 27. "If a man, kinless of paternal relatives, fight and slay a man, and then if he have maternal relatives, let them pay a third of the 'wer'; his guild-brethren a third part; for a third let him flee. If he have no maternal relatives, let his guild-brethren pay half, for half let him flee." CAP. 28. "If a man kill a man thus circumstanced, if he have no relatives, let half be paid to the king, half to his guild-brethren." It is very hard for us to understand what that means. One would infer that the weregild was only paid by a man with relatives on his father's side. It doesn't say that, but that is the inference. We shall have plenty to say about the guilds later--the historical predecessors of the modern trades-unions. We here find the word _guild_ recognized and spoken of in the law as early as 890. A.D. 920. WESSEX. EDWARD. "2. And if a ceorl throve, so that had fully five hides of his own land, church and kitchen, bell-house and burh-gate-seat, and special duty in the king's hall, then was he thenceforth of thegn-right worthy. "6. And if a merchant throve, so that he fared thrice over the wide sea by his own means, then was he thenceforth of thegn-right worthy." Worldly success has thus always been the foundation of English nobility. Then there is a good deal about how much you have to pay for a churl, and how much for an earl, and so on, leaving out only the slaves; for all the free people of England in Saxon times were divided into earls and churls; that is, noblemen and agricultural laborers or yeomanry; these were the two estates besides the church, always a class by itself. Later there grew up the thanes, who were merely large landlords; the law became that a man that had five hides of land, five or six hundred acres, with a farm, should by the mere fact of having that land become a thane, an earl. That method of ennobling a man by land got to be a way, at that time the only way, by which a churl or a villein could become a nobleman or even be emancipated. Exactly as now with our American Indians; when an Indian gets one hundred and sixty acres given to him in severalty he becomes, under the Dawes Act, a citizen of the United States. Later there grew up emancipation by the guilds. The word _guild_ meant the members of a certain handicraft, but that was rather the secondary meaning; it originally meant the freemen of the town. But the freemen of the towns were made up of the freemen of the guilds. No one could become a member of the guild without going through certain ceremonies, much as he would now to join a trades-union; and no one could become a freeman of the town unless he was a freeman of the guild. The law grew to be, however, that if a man succeeded in staying in a town for a year and a day, without being turned out, plying his handicraft, he became by that mere fact a freeman of the town; for the citizens of towns established their liberty, both personal and political, far earlier than the dwellers on agricultural land. 959-975-EDGAR. CAP. 1. "_Secular Ordinance_. Now this is the secular ordinance which I will that it be held. This, then, is first what I will: that every man be worthy of folk-right, as well poor as rich; and that righteous dooms be judged to him; and let there be such remission in the 'bot' as may be becoming before God and tolerable before the world." 1016. CANUTE. CAP. 71. "And if any one depart this life intestate, be it through his neglect, be it through sudden death; then let not the lord draw more from his property than his lawful heriot. And according to his direction, let the property be distributed very justly to the wife and children and relations, to every one according to the degree that belongs to him." CAP. 81. "And I will that every man be entitled to his hunting in wood and in field, on his own possession. And let every one forego my hunting: take notice where I will have it untrespaesed on under penalty of the full 'wite.'" But even the great code of Edward the Confessor has, for the most part, to do only with political divisions, what shall be a shire, what a parish, etc., and certain technical matters that have now grown obsolete. So we may conclude with the statement, substantially accurate, that there was practically no _new_ legislation, no constructive legislation under the Saxons; their social law was all unwritten. And Parliament did not begin by being a law-making body. Its legislative functions were not very active, as they were confined to declaring what the law was; more important were its executive and judicial functions. In modern English government, particularly in our own, one of the basic principles is that of the three departments, executive, legislative, and judicial; the Norman or Roman theory rather reposed all power in one; that is, in the sovereign, commonly, of course, the king, the others being theoretically his advisers or servants. In England, to-day, the real sovereign is the Parliament; the merest shadow of sovereignty is left to the executive, the king, and none whatever given the judicial branch. In this country we preserve the three branches distinct, though none, not all three together, are sovereign; it is the people who are that. And each department is of equal dignity; although at one period there was a certain amount of public complaint that Congress was usurping more power than belongs to it, and recently that power was being usurped by the president, there has hardly been (except from Mr. Gompers and Mr. Hearst) any complaint that power is usurped by the _judicial_ branch, however unpopular its decisions. But in England there is no pretence of maintaining the three branches uniform either in importance or in power. Starting with the Great Council, which had originally only a certain amount of executive power and a great deal of judicial power, they have retained and added to the former, while practically giving up the latter; and, moreover, they have divided into the two houses, the House of Lords and the House of Commons, with a division of sovereignty between them, the Commons, of course, getting the lion's share. The only judicial power substantially now remaining in the English Parliament is the power of impeachment, which is rarely exercised in England, and the appellate jurisdiction of the House of Lords, of the "law" lords, that is, those peers who held legal offices. On the other hand the legislative function of Parliament, which began merely in the way of saying what the law was, has enormously developed, and still more so the executive. Thus the legislative branch of the three divisions in the English government has increased out of all proportion to both the others, having now all the legislative power and most of the executive. And legislatively it is omnipotent; it is confined by no constitution; even the king cannot withhold his consent. Parliament can make any law, although against what _was_ the Constitution; the Constitution may be modified by a simple statute. So their legislative function is infinite; and their executive function has, in substance, grown very large, because the British government is carried on by the cabinet, which is practically a committee of the House of Commons. But of the judicial function, which was the principal function of the Great Council at the time of the Conquest, hardly a shred remains. It is the history of all countries that people are not jealous of the judicial power, while they are extremely anxious to seize the legislative and executive. With us, however, we are supposed to have all three functions co-ordinate and in good working activity. But in both countries, money bills, bills imposing taxes, are the function of the lower house. That principle grew historically from the principle that all taxation must be voted by the people, directly or indirectly; must be with the common consent and for the common benefit. That principle was established by the House of Commons, and consequently they arrogated to themselves that part of the legislative power. That principle we have retained in our Federal Constitution, and in most of our State constitutions; all of which have the double house. The first functions of Parliament were restricted to voting taxes. The king called the barons together merely to get "aids," and they wouldn't give them until he recognized what they chose to call the old law of England, always a pre-existing law. It was still a long time before there was constructive legislation. Just as, before the Conquest, in the seventh century, we find it said of the law of Wihtred: "Then the great lords with the consent of all came to a resolution upon these ordinances and added them to the customary laws of the men of Kent"; and, in the time of King Alfred: "I, then, Alfred, king, gathered these [laws] together, and commanded many of those to be written which our forefathers held, those which to me seemed good; and many of those which seemed to me not good I rejected them, by the counsel of my 'witan,' and they then said that it seemed good to them all to be holden";[1] so, after the Conquest, every Norman king was made on his coronation oath to promise this, the law of Edward the Confessor, until Magna Charta; after that they promised to respect Magna Charta instead, which was thus reissued or confirmed thirty-two times in the eighty-two years which intervened between Runnymede and the final Confirmation of Charters under Edward I. Thus, William the Conqueror himself, in his charter to the city of London, says, in Anglo-Saxon: "_And I do you to wit that I will that ye two be worthy of all the laws that ye were worthy of in King Edward's day_." So the Domesday Book records "_the customs_," that is to say, the laws, of various towns and counties; these bodies of customs invariably containing a mere list of penalties for the breach of the established law; while later charters usually give the inhabitants of a town all the customs and free privileges enjoyed by the citizens of London. [Footnote 1: Stubbs's "Charters," p. 62.] But after the Conquest laws could only be enacted with the concurrence of the king; and the phrase was, and is still, in form, that "the king wills it"--_Le Roy le veult_. Nevertheless, Parliament usually originated laws. The early Norman kings cared nothing about legislation; their sole desire was to get money from the people. For two centuries, therefore, Parliament was occupied only with laws recognizing the old Anglo-Saxon laws previously existing, or laws removing abuses of the royal power; and the desire of the king to tax the people was used as the lever to get him to assent to these laws. With the usual sensible indifference of the English race to mere matters of form, they allowed the Norman kings to go on declaring the laws and signing them as if they were made only by the crown, which was the Norman theory--not caring for the shadow, if they could get the substance. Thus they established, in the first two or three centuries, the right to force legislation on the king, and they did it by the instrument of the taxation power. For taxation must be "by the common consent of the realm"; no taxation without representation, as the Declaration of Independence puts it, is probably the earliest principle of the English Constitution; and it is most significant to the student of the constitutional law, a most necessary reminder to those who do not value our Constitution, that it was the departure by George III from this very earliest of English constitutional principles that caused the loss of his American empire. This was six hundred years old, therefore, at the time of our Revolution. Except those two principles, taxation by common consent and taxation for the common benefit--which latter was not finally established until two hundred years later (that is, it was put in the first Magna Charta, John's, and then quietly dropped out by Henry II, and kept out of the charter for nearly one hundred years),--we have to come down to the year 1100 before we find the first _sociological_ statute. "Henry I called another convention of all the estates of the realm to sit in his royal palace at London ... the prohibiting the priests the use of their wives and concubines was considered, and the bishops and clergy granted to the king the correction of them for that offence; by which means he raised vast sums of money compounding with the priests...."[1] [Footnote 1: Cobbett's "Parliamentary History of England," I, 4.] In 1 Henry, cap. VII, is another recognition of personal property--it says that at a man's death it is to be divided between his widow and his heirs. Now that may seem commonplace enough; but it is interesting to note, as in the law, personal property did not come first; property in land was many centuries earlier. And this suggests the legal basis and present tendency of the law of property. "Property exists only by the law"; and extreme socialists say that all private property is robbery. No law, no property; this is true. Property is an artificial thing. It is a creation of law. In other words, where there is now no law except statute, it is the creation of statute. That may sound a commonplace, but is not, when you remember that socialists, who are attacking property, do so on precisely that ground. They say it is a fictitious thing, it is a matter of expediency, it is a matter which we can recognize or not, as we like; "no law, no property," and they ask us to consider whether, on the whole, it is a good thing to have any property at all, or whether the state had not better own all the property. But our Federal and State constitutions guard it expressly. Thus, property is the very earliest legal concept expressed in statutes, just as it is perhaps the earliest notion that gets into a child's mind. And ownership of land preceded _personal_ property--for the perfectly simple reason that there was very little personal property until comparatively late in civilization, and for the other more significant reason that an Anglo-Saxon freeman didn't bother with law when he had his good right hand. In the fifth, sixth, and seventh centuries, when we were barbarous tribes, a man's personal property consisted chiefly in his spear, his weapons, or his clothes; enemies were not very apt to take them, and if they did, he was prepared to defend them. Then, cattle, in those days, belonged to the tribe and not to the individual. So, I should fancy, of ships--that is, galleys, not private "coracles," the earliest British boats. Consequently there wasn't any need for a law as to personal property. What little there was could be easily defended. But with land it was different. Property in land was recognized both among the English and, of course, with the Normans; and in ways so similar that it was very easy for the Normans to impose the feudal system upon England. There had been no feudal system before the Norman Conquest; there were then three kinds of land: the rare and exceptional _individual_ land, owned by one man--always a freeman, not a villein or slave--and this was very small in extent, limited to a very few acres around a man's home. Most of the land was held in common; the folgland, so-called, which belonged to the tribe; the land on which the cows of the village were pastured. And finally there was the public, or unappropriated, or waste land. Most of this last was seized, after the Conquest, by the big feudal lords. For they came in with their feudal system; and the feudal system recognized no absolute ownership in individuals. Under it there were also three kinds of land, and much the same as the Saxon, only the names were different: there was the crown land--now I am speaking English and not Norman-French--which belonged to the king and which he probably let out most profitably; there was the manor, or the feudal land, which was owned by the great lords, and was not let by the king directly; and then there was the vacant land, the waste land, which was in a sense unappropriated. Now all the Norman kings had to do was to bring the feudal system over the Saxon law of land, so that the tribal land remained the only private land--that which is called "boke land." This is land such as all our land is to-day, except land like our Cambridge Common. With a very few exceptions, all our land is "boke" land--freehold land. Then there was the public land; but that very soon was taken by the lords and let out to their inferiors; this was the great bulk of land in England after the Norman Conquest. Lastly again there was the crown land, out of which the king got his revenue. As something like this threefold system of land existed before the Conquest, a subtle change to the feudal system was comparatively easy by a mere change of name. In the same year--1100--is the Charter of "Liberties" of Henry I. It restores the laws of Edward the Confessor "with the amendments made by my father with the counsel of his barons." It promises in the first section relief to the kingdom of England from all the evil customs whereby it had lately been oppressed, and finally returns to the people the laws of Edward the Confessor, "with such emendations as my father made with the consent of his barons."[1] In his charter to the citizens of London[2] he promises general freedom from feudal taxes and impositions, from dane-geld and from the fine for the murder of a Norman; and the Charter of Liberties issued by Henry II in 1154 confirms their "liberties and free customs to all men in the kingdom."[3] From this dates the equality of Englishmen before the law, commons as well as barons. Henry II was the first Norman king who had the old Saxon blood, and therefore he was looked forward to with a great deal of enthusiasm by the people of England. For although it is only one hundred years after the Conquest, the Normans and the Saxons had pretty well fused, and the Normans, who were inferior in number, had got thoroughly imbued with the free notion of Anglo-Saxon law. So they got this charter from him; but there is no legislation to concern us in it, it is only political. It has a great deal to do with the church, and with what the king will not do; it binds him, but it does not state any law directly. [Footnote 1: Stubbs's "Charters," p. 101 (clause 13).] [Footnote 2: _Ibid_., p. 108.] [Footnote 3: _Ibid_., p. 135.] There is further a continued evidence of the efforts of the people to restore the common law of England as against the king's law or Roman law, or later against the law of the church, also a kind of Roman law known as canon law; and later still against the law of the king's chancellor, what we should now call chancery jurisdiction; for the jealousy of chancery procedure was quite as great in the twelfth century as it is with the most radical labor leaders to-day; but of this later on. In 1159 they succeeded in doing away with the Norman method of trying cases by battle and the Saxon method of trying by oath, and by the machinery of the Norman Great Assize introduced again trial by jury. For this in itself is probably an old Saxon institution. And in 1164 came the great Constitutions of Clarendon, the principal object of which was to free the people from the church law and subject the priests to the ordinary common law as in times before the Conquest--for now, "as the influence of the Italian lawyers increased,"[1] all the priests and clergy were above it. It was the first great statute which clearly subjected the church--which, of course, was the Church of Rome--to the common secular law. There was a vast jurisdiction of church law ("Doctors commons" courts lasted until a generation ago in England); some of it still remains. But in these early days all matters concerning marriage, divorce, guardianship of children, ownership of property after death, belonged to church law. It is hard to see why, except that the mediaeval church arrogated to itself anything that concerned _sin_ in any way--anything that concerned the relation of the sexes, that concerned the Holy Sacraments, and marriage is a sacrament. Consequently the mediaeval church claimed that it had jurisdiction over all marriage, and over all divorce; and also took jurisdiction over a man's children at his death, and over his property, now exercised by our courts of probate. This they got out of the notion that when a man was dead, there was something, in a sense, that went beyond this life in looking after his property and children. And down until twenty or thirty years ago all jurisdiction in England in matters which concerned a man's property, after death, belonged to the church courts and their successors. The church law was based on the Roman law, but was called _canon_ law, the technical word, because it is the "canons" of the church. It is a convenient term to distinguish it from the ordinary civil law of the Continent. So that the Constitutions of Clarendon began what was completed only under Henry VIII; they very clearly asserted the claim of the king to be supreme over the Church of England. The Bishop of Rome, as Henry VIII called the pope, had no more power than any other foreign bishop.[2] There still remained the institution known as benefit of clergy, by which any priest, or later any clerk or cleric (which word came to mean any one who could read and write) could get off of any criminal accusation, at first even murder, by simply pleading his clergy; in which case the worst that could happen to him was that he was branded in the right hand. But the Constitutions of Clarendon were a great step toward civil liberty. Taken by us in 1164, it was followed in so neighboring a country as France only so late as a few years ago. The priests, however, still managed to retain their jurisdiction over offences among themselves, as well as over marriage, the relation between the sexes, slander, usury, and wills--of matters relating to the sacraments, and of sins. [Footnote 1: Stubbs, p. 136.] [Footnote 2: Yet "Peter's Pence" were initiated by Ini, King of the West Saxons, about 690!] Now this is a very interesting matter, and were it borne in mind by our modern legislators they would escape a good deal of unintelligent legislation; that is, the distinction between a sin and a crime. A sin is against the church, or against one's conscience; matter, therefore, for the priest, or one's spiritual adviser. A crime is an offence against other men; that is, against the state, in which all are concerned. Under the intelligent legislation of the twelfth century all matters which were _sins_, which concerned the conscience, were left to the church to prevent or punish. For the same reason usury was matter for the priest--because it was regarded under the doctrines of the Bible as a sin. This notion prevailed down to the early legislation of the colony of Massachusetts, though doubtless many things which were then considered sins would now be regarded as crimes, such as bigamy, for instance. The distinction is, nevertheless, a valid one, and we shall have occasion frequently to refer to it. We shall find that the defect of much of our modern legislation--prohibition laws, for instance--is that they attempt to treat as crimes, as offences against the state, matters which are merely sins, offences against the conscience or the individual who commits them. To-day, the American constitutions all say that a militia is the natural defence of a state of free men. It is interesting; therefore, to find, hardly a century after the Norman Conquest. In 1181, the Assize of Arms, which revived the ancient Saxon "Fyrd," the word for what we now call militia; and, twenty years before that, "scutage" replaced military service. To the burdens of the feudal system, compulsory military service and standing armies, our ancestors objected from the very beginning. In a sense, scutage was the beginning of taxation; but it was only a commutation for military service, much as a man to-day might pay a substitute to go to war in times of draft. General taxation first appears in 1188 in the famous Saladin tithe, the first historical instance of the taxation of personal property as distinct from a feudal burden laid upon land. The object of this tax was to raise money for the crusade against the Sultan Saladin. It was followed, five years later, by a tax of one-fourth of every person's revenue or goods to ransom the king, Richard I having gone to this crusade against Saladin, and been captured on his return by his good friend and Christian ally, the Emperor of the Holy Roman Empire. It is interesting to note that the worth of the king in those days was considered exactly one-fourth of the common wealth of England. John was less expensive; but he was not captured. He levied a tax ten years later of one-seventh part on the barons, and one-thirteenth on every man. In 1213 two important things happened. The high-water mark of domination by the Roman Church is reached when King John surrendered England to the pope, and took it back as a fief of the pope for a tribute of one thousand marks. The same year the other early method of trial of lawsuits was abolished by the Lateran Council--trial by ordeal. This was the only remaining Saxon method. The Norman trial by battle had already been superseded by trial by jury; and from this time on, in practice, no other method than a jury remains, though trial by battle was not abolished by statute until the nineteenth century. And then we come to Magna Charta. The first time it was granted was in 1215 by John, but the charter always quoted is that promulgated ten years later under Henry III. They were very nearly identical, but the important omission in the charter of Henry was in regard to "scutage" ("no aid other than the three customary feudal aids shall be imposed without the common counsel of the kingdom"); that, of course, is the principle we have discussed above, first put in writing in the charter of John. The barons claimed it as part of the unwritten law. But Henry III in his charter cannily dropped it out--which is a trick still played by legislatures to-day. This Magna Charta was confirmed and ratified something like thirty times between the time of its adoption under John and the time it got established so completely that it wasn't necessary to ratify it any more. There are four sections of Magna Charta that are most important. Chapter 7, the establishment of the widow's dower; of no great importance to us except as showing how early the English law protected married women in their property rights. Chapter 13 confirmed the liberties and customs of London and other cities and seaports--which is interesting as showing how early the notion of free trade prevailed among our ancestors. It gave rise to an immense deal of commercial law, which has always existed independent of any act of Parliament. Chapter 17 provided that the common pleas court--that is, the ordinary trial court--should not follow the king about, but be held at a place and time certain. That was the beginning of our legal liberty; because before that the king used to travel about his realm with his justiciar, as they called his chief legal officer, and anybody who wanted to have a lawsuit had to travel around England and get the king to hear his case. But the uncertainty of such a thing made justice very difficult, so it was a great step when the leading court of the kingdom was to be held in a place certain, which was at once established in Westminster. Minor courts were, of course, later established in various counties, though usually the old Saxon county or hundred-motes continued to exist. Chapter 12 is the one relating to scutage, from the word _scutum_, shield--meaning the service of armed men. Just as, to-day, a man who does not pay his taxes can in some States work them out on the road, so conversely in England they very early commuted the necessity of a knight or land-owner furnishing so many armed men into a money payment. "The three customary feudal aids" were for the defence of the kingdom, the building of forts, and the building of bridges--all the taxes usually imposed upon English citizens in these earliest times--all other taxation to be only by the Common Council of the kingdom. This is the first word, council; later, it became "consent"; the word _conseil_ meaning both consent and council. "Council of England" means, of course, the Great Council. We are still before the time when the word Parliament was used. Thus Magna Charta expresses it that there should be no taxation without "the advice" of Parliament, without legislation; and as Parliament was a representative body, it is the equivalent of "taxation without representation." This also was omitted in Henry III's charter, 1217, and only restored under Edward I in 1297, a most significant omission. And it is also expressed in early republications of the Great Charter that taxation must be for the benefit of _all_, "for public purposes only," for the people and not for a class. On this latter principle of Anglo-American constitutional law one of our great political parties bases its objection to the protective tariff, or to bounties; as, for instance, to the sugar manufacturers; or other modern devices for extorting wealth from all the people and giving it to the few. All taxation shall be for the _common_ benefit. Any taxation imposed for the sole benefit of the land-owning class, for instance, or even for the manufacturing class, is against the original principles of constitutional liberty. Then we come to chapter 39, the great "Liberty" statute. "No freeman shall be taken or imprisoned or be disseised of his freehold or _his liberties or his free customs_ [these important words added in 1217] or be outlawed or exiled or otherwise destroyed but by lawful judgment of his peers, or by the law of the land." This, the right to law, is the cornerstone of personal liberty. Any government in any country on the Continent can seize a man and keep him as long as it likes; it is only Anglo-Saxons that have an absolute right not to have that happen to them, and not only are they entitled not to be imprisoned, but their liberty of free locomotion may not be impeded. An American citizen has a constitutional right to travel freely through the whole republic and also not to be excluded therefrom. Punishment by banishment beyond the four seas was forbidden in very early times in England. "Disseised of his freehold, of his liberties or his free customs"--that is the basis of all our modern law of freedom of trade, against restraint of trade, and the basis on which our actions against the modern trusts rest; the right to freely engage in any business, to be protected against monopoly either of the state or brought about by competitors, to freely make one's own contracts, for labor or property, to work as long as one chooses, for what wages one wills, and all the other liberties of labor and trade. "Or be outlawed or exiled or otherwise destroyed"--that is a broad general phrase for any interference with a man's property, life, or liberty. "Nor will we go upon him"--that has been translated in various ways, but it means what it says; it means that the king won't descend upon a man personally or with his army; nor will we "send upon him"--a law officer after him; "but by the lawful judgment of his peers, or by the law of the land"--that means jury trial, or at least the law of the land, as it then was; and that phrase, or its later equivalent--due process of law--is discussed to-day probably in one case out of every ten that arise in our highest courts. Many books have been written upon it. To start with, it means that none of these things can be done except _under law_; that is, except under a lawsuit; except under a process in a court, having jury trial if it be a civil case, and also an indictment if it be a criminal case, with all the rights and consequences that attend a regularly conducted lawsuit. It must be done by the courts, and not by the executive, not by the mere will of the king; and, still more important to us to-day, not by legislatures, not even by Parliament. "We will sell to no man, we will deny or delay to no man, either right or justice," needs no explanation; it is equality before the law, repeated in our own Fourteenth Amendment. Lastly, we have in cap. 41: "Merchants shall have safe conduct in England, subject only to the ancient and allowed customs, not to evil tolls"--a forecast of the allowable tariff as well as of the spirit of modern international law. Finally, there is a chapter on mortmain, recognizing that land might not be given to monasteries or religious houses, and particularly under a secret trust; the object being to keep the land, which made the power of the realm, out of the hands of the church. As far as that part of it goes, it is merely historical to us, but it developed into the principle that corporations "which have no souls," and do not die, should not own too much land, or have too much power--and that is a very live question in the United States to-day. One must not be misled by the generality of the phrase used in chapter 39, and think it unimportant because it looks simple. It is hard for an American or Englishman to get a fresh mind on these matters. We all grow up with the notion that nobody has the right to arrest us, nobody has the right to deprive us of our liberty, even for an hour. If anybody, be he President of the United States or be he a police officer, chooses to lay his hand on our shoulder or attempts to confine us, we have the same right to try him, if he makes a mistake, as if he were a mere trespasser; and that applies just as much to the highest authority, to the president, to the general of the army, to the governor, as it does to a tramp. But one cannot be too often reminded that this principle is peculiar to English and American civilization. Throughout the Continent any official, any judge, anybody "who has a red band around his cap," who, in any indirect way, represents the state--a railway conductor, a spy, a station agent--not only has the right to deprive you of your freedom, but you have no right to question him; the "red band around the cap" is a final answer. Hence that extraordinary incident, at which all England laughed, the Kupenick robbery. A certain crook who had been a soldier and was familiar with the drill and the passwords, obtained possession of an old captain's uniform, walked into a provincial town of some importance, ordered the first company of soldiers he met to follow him, and then with that retinue, appeared before the town hall and demanded of the mayor the keys of the treasury. These were surrendered without question and he escaped with the money, representing, of course, that he had orders from the Imperial government. It never occurred to any one to question a soldier in full uniform, and it was only some days later, when the town accounts were sent to Berlin to be approved, that the robbery was discovered. Such a thing could by no possibility have happened in England or with us; the town treasurer would at once have demanded his authority, his order from the civil authorities; the uniform would have failed to impress him. Moreover, under our local self-government, under our decentralized system, nobody is _above_ even a town officer, or a State or city official at the head of his department, however small it be, except the courts. State officers may not command town officers, nor Federal officers State officers; nor soldiers give orders to policemen. The president, the governor, may perhaps remove them; but that is all. And even the policeman acts at his peril, and may be sued in the ordinary courts, if he oversteps his authority. The notion that a free citizen has a right absolutely to question his constraint by any State officer is peculiar to the English and American people, and this cannot be too often repeated; for it is what foreigners simply fail to understand. And it rests on this chapter in the Great Charter, originally, as amplified and explained by the courts and later acts of Parliament, such, as the Habeas Corpus Act. If a man is arrested by any official, that person, however great, has to justify the arrest. In theory, a man arrested has a right to sue him for damages, and to sue him criminally for trespass; and if that man, be he private individual or be he an official or president, cannot show by a "due course of law"--that is, by a due lawsuit, tried with a jury--that he did it under a duly enacted law, and that the facts of the case were such as to place the man under that law--then that official, however high, is just as much liable in the ordinary courts, as if he were the merest footpad trying to stop a man on the highway--a doctrine almost unknown to any country in the world outside of England, the United States, and English colonies. III RE-ESTABLISHMENT OF ANGLO-SAXON LAW Going on with the statutes, the next thing we will note is a matter that concerns the personal relations. It shows again how eagerly our English common law overruled the church law, the canon law. Although the church under the pope always pretended that it alone had authority to regulate relations between the sexes, marriage and divorce, we found Henry I interfering with the priests themselves, and we now find as early as 1235, a secular statute which extends the interference of the secular law over the relations between parent and child; that is, as to when a child should be legitimate and when not. We shall have a great deal to say later about marriage and divorce laws, particularly divorce laws as they exist in this country and as they apparently are going to be. As early as 1235 the secular courts interfered with the marriage relation; and the importance of that is here: there is one great school to-day, including largely clergymen and the divorce reformers, so-called, who hold substantially that marriage is a sacrament, or at least a status; that the secular law has nothing to do with it and should not be allowed to grant a divorce except for canonical causes, _i.e._, causes recognized by the church; that it is not like any other contract, which can be set aside with mutual consent; when a marriage takes place, they say, it is a sacrament, or, at least, a status ensues which cannot in future be altered. Consequently, it is not like a contract; for all contracts can be abrogated by mutual consent. On the other hand, the most radical people go to the other extreme, and say that marriage _is_ like any other contract; it is purely a civil contract, not a sacrament, not a status; just like any other, and some of them go to what is the logical conclusion of that position and say that therefore marriage, like any other contract, ought to be ended at any time by the consent of both parties. The extreme radical view leads to the conclusion that a man and woman ought to be divorced any time by merely saying that they want to be; and some States have almost got to this position in their statutes. This may seem a very far cry from this early statute, which does not directly concern marriage but the status of children; nevertheless it has this bearing--it is an interference by Parliament, by the secular, legislative branch of government, with a relation which the church believed to belong only to the church. It so happens that in this instance the secular law instead of being liberal and kindly was extremely cruel and the reverse of liberal. Under the church law, when a man married a woman by whom he already had children, all those children were thereby made legitimate, and that certainly seems the kindly and the Christian law. But the secular barons who constituted the Parliament, in their jealousy for the common law, took the harsher view, that any children born of parents who are not married at the time they are born shall be illegitimate, although their parents may marry afterward. Beaumont and Fletcher, in one of their plays, make a punning reference to that. It seems to have struck Beaumont and Fletcher as it does us, that it was a cruel law for the Parliament to make; when the church for once was liberal, it was queer that the Parliament should be illiberal; so Beaumont and Fletcher, in one of their plays, say: "The children thou shalt get _by this civilian_ cannot inherit by the _law_." This is interesting, because they use all the words I have been trying to define; when they say "the children thou shalt get by this _civilian_," they mean by this civilian a person who is under the civil, or Roman, or church law; that is, they mean to say, although you marry a woman who is a church member and under the jurisdiction of the bishop, etc., nevertheless the church law won't help you; your children by her cannot inherit by the _law_, and the law as used by Beaumont and Fletcher and as used by me and as used in English books means the _common_ law, the common _secular_ law, the law of _England_, not the civil or canon law.[1] Beaumont and Fletcher evidently thought it was a very illiberal statute; and our modern American States have all come to Beaumont and Fletcher's conclusion; they have universally reversed the old English statute and gone back to the church law, so that throughout the United States to-day a child born before the marriage of its parents is legitimate if its parents afterward marry. That is true, no matter how late it is; if the man marries her even on his death-bed, all his children are legitimized. [Footnote 1: "And so all the earls and barons answered with one voice, that they would not change the laws of England."] In the same Statute of Merton there is a sentence against usury, "no usury permitted against minors"; and there are two things to note here. One is, that the secular legislature is also taking jurisdiction of minors, who were claimed at that time to be solely under the jurisdiction of the church; and the other is the reference to usury. Mind you, usury is interest. It didn't mean excessive interest, as it does now. As you probably know, the notion prevailed in the early Middle Ages that all usury--interest--was a sin and wrong; and even Ruskin has chapter after chapter arguing that principle, that it is wrong to take interest for money. I should perhaps add another reason why interest was so disliked in early England: There was very little money in early England; and it mostly belonged to the Jews. It was a good deal as it is in Russia to-day; the Jews were persecuted in Russia as in early England, because, in the country districts of Russia, the Jews have all the money, and money-lenders are always unpopular. So in early England. The great barons had their land and their cattle and crops, but they had little money. When they wanted money they got the value of it out of their tenants. Nobody carried large sums of money around with him then, any more than a woman does to-day--she relies on her husband or father; they went to the nearest Jew. When the king wanted cash, he also extorted it from the Jews. One of the early Henrys said seriously, that he regarded the Jews as a very convenient sponge! That is, they sucked all the money in the kingdom and got it into a place whence he could easily get it out. But it made the Jews very unpopular with the masses of the people and with the Parliament; hence, their great dislike of usury. I doubt very much if they would have cared much about usury if one gentleman had been in the habit of loaning money to another; but all the money came from the Jews, who were very unpopular; and the statutes against usury were really made against them, and that is why it was so easy to pass them--they based it, doubtless, on the references to usury in the Bible. Thus they got the notion that it was wrong to charge interest, or at least extortionate interest; more than a certain definite per cent.; and this is the origin of all our interest and usury statutes to-day. Although most economists will tell you that it is ridiculous to have any limit on the rate of interest, that the loan of money may well be worth only four per cent. to one man and twenty-five to another, and that the best way for everybody would be to leave it alone; nevertheless, nearly all our States have usury laws. We shall discuss that later; but here is the first statute on the subject, and it really arose because of the feeling against the Jews. To show how strong that prejudice was, there was another statute passed in the interest of liberality to protect the Jews--a statute which provided liberally that you must not take from a Jew "more than one-half his substance." And a very early commentator tells us of a Jew who fell into a privy on a Friday, but refused to be helped out on Saturday because it was his Sunday; and on Sunday he besought the Earl of Gloucester to pull him out, but the Earl of Gloucester refused because it was his Sunday; so the Jew remained there until Monday morning, when he was found dead. There is no prejudice against Hebrews to-day anywhere in Europe stronger than existed even in England for the first three or four centuries after the Norman Conquest; and had it not been for the protection given them by the crown, probably they would have been exterminated or starved out, and in 1289 they were all banished to the number of 16,160, and their movables seized. In 1264 citizens of towns were first represented in the Parliament (in the Great Council, that is, for the word parliament is not yet used), originally only composed of the great barons, who were the only land-owners. The notion of there being freemen in towns was slowly established, but it was fully recognized by 1264, and in that year citizens of towns first appeared in the Council. To-day, under the various Reform Acts, tenants or even lodgers in towns are just as much represented as the land-owners; but the reform which began in 1264 took six hundred years to be thoroughly established. And now we find the first statutory origin of that utterly fallacious principle--although alive to-day--that the state, in a free country, a legislature-governed country, has the right, when expedient, to fix the _price_ of anything, wages or other commodities; fallacious, I say, except possibly as to the charges of corporations, which are given special privileges by the government; the principle, which prevailed throughout the Middle Ages, of fixing the prices of all things. In this case the price was on bread; but you find now for many centuries an attempt to fix the price of almost everything; and of labor, too, what wages a man should be paid. It lasted persistently for centuries and centuries, and it was only under the influence of modern political economy, Adam Smith and other quite modern writers, that the principle that it was possible to fix prices of commodities was utterly eradicated from the English mind. And you hardly got it out of England before it reappeared in the United States. It is not a new-fangled principle. You find the newspapers commonly talk about fixing prices by law as if it were something utterly unheard of and utterly new. It is not so. It Is on the contrary as old as almost any legislation we have, and you can make no argument against it on that ground. It has always been the custom of our ancestors to regulate the prices of wages by law, and the notion that it was either unconstitutional or inexpedient dates from a very few years back; yet all such attempts at legislation have utterly disappeared from any modern statute-book. In no State of our forty-six States is any one so unintelligent, even in introducing bills in the legislature, as to-day to propose that the price of a ton of coal or a loaf of bread shall be so much. Nor is any modern legislature so unintelligent or so oppressive as to propose sumptuary laws; that is, to prescribe how expensively a man or woman must dress; but in the mediaeval times those were thought very important. Every class in England was then required by law to have exactly so many coats, to spend so much money on their dress, so much on their wives' dress, and certain men could have fine cloth and others coarse cloth; everything was graded, even to the number of buttons on clothes, and they went so far even as to try in some early legislation to say what men should have to eat; the number of courses a man should have for his dinner were prescribed by law at one time in England, varying according to the man's rank. All such legislation has absolutely vanished and probably no one need know that it existed--but that when efforts are made, as they sometimes are, by our more or less uneducated members of legislatures to introduce bills of such a kind, it is very important for us to know that those experiments have been tried and have failed, having proved to be either impracticable or oppressive or not for the general benefit. This is the importance of these early laws, even when obsolete; because we never know when some agitator may not pop up with some new proposal--something he thinks new--which he thinks, if adopted, will revolutionize society. If you can show him that his new discovery is not only not new, but was tried, and tried in vain, during two or three centuries in the life of our own ancestors, until an enraged public abolished it, it will destroy any effect that he is likely to make upon the average legislature. The first general example of an English law fixing the price of a commodity is in 1266, the Assize of Bread and Beer. That fixed the price of bread according to the cost of wheat, a sliding scale, in other words; when a bushel of wheat cost so much, a loaf weighing a certain amount must cost so much, etc. But you must not confound that with the modern law that still exists in England, and in some States and cities here, merely regulating the _size_ of a loaf. That is perfectly proper, reasonable legislation, done merely for the purpose of protecting the public and preventing fraud. In England, for instance, there is a certain standard loaf known as a quartern loaf, and in order to prevent poor people being cheated it is prescribed by city ordinance that the quartern loaf shall weigh so much, shall contain so many ounces of flour. We do have similar laws saying how much a bushel of potatoes shall weigh, how much a barrel of flour shall weigh. That isn't fixing the price; it is only fixing a uniform size so that the public may not be cheated in its dealings, and one must not take such a law as justifying the fixing of prices. In the year 1266 I find the first statute in the French language, Norman French; before that they were all in Latin; and they lasted in French for some four or five hundred years, and then they were put in English. The Statute of Marlborough, 1267, is a very important one historically, but it does not concern us, because it mainly had to do with the ownership of land, the tenure of land in England, an extremely important subject, but one that is obsolete here. Then we have something about the trial of clerks for murder. Of course the word clerk there means not what we mean by a clerk, but a person who could read and write; and nothing more than that. It originally meant persons in holy orders, who were called clerks (clerics), but there got to be clerks who were not in holy orders. Originally only priests could read and write. No one else knew how, except possibly great personages like kings, and consequently it was the same thing whether, when you said a clerk, you meant a person who could read and write or a priest. But when there got to be people who could read and write and who were not priests, it became an important distinction. There was a privilege in England known as the "benefit of the clergy"; if any clerk was tried for a criminal offence, no matter what, all he had to do was to state that he was a priest and he was at once set free. In other words, he could not be punished. That doesn't concern us; but, I suppose, it resulted from the old notion that all priests were subject only to Rome, and to the church courts, and not to the civil law courts; and consequently when a priest was attempted to be tried in a civil law court, it was a way of doing what we should call "pleading to the jurisdiction" of the court. Later, as time went on, in England it was greatly abused, especially when there got to be clerks who were not priests. When it meant anybody who could read and write, and anybody who had committed a murder had only to say, "I can read and write," and be set free, it led to an extraordinary state of things. So, from time to time, they modified the benefit of the clergy, until ultimately it was abolished entirely; first by not allowing it in high offences like murder; then by imposing certain slight punishment--they were "burned in the hand"; then by applying it only to the first offence, and so on, until they got rid of it entirely; and this Statute of Marlborough is simply one of the first of that long chain of statutes which finally did away with it and prevented people from getting rid of a criminal prosecution merely because they knew how to read and write or were priests. In 1275 I note the first use of the word parliament. I have used it from the beginning, but it is important to remember that the thing was not _called_ parliament until 1275. Before that it was called the Great Council or the King's Council, and in Saxon times the Witenagemot. Then we come down to the Statute of Westminster I. That is considered a great landmark in statutory legislation mainly because it is the first attempt to establish a code, or, at least, a large collection of the laws of England. It is an attempt to put what they supposed to be a good part of them into writing. We have no codes in this country, as a rule; nor to-day in England; the ordinary Anglo-Saxon does not believe in codes. It is the French and Germans who have codes. Nevertheless, you often find collections of statutes. It is important not to confound these things with codes, because they never pretend to be complete. Many States in this country never make revision of the statutes. Nevertheless, every ten or twenty years they will print a collection of the statutes arranged alphabetically. In some States, as in Massachusetts, those collections are official; but in other States they are simply matters of private enterprise. They are of no authority, and if they are wrong it is no protection to you. You are bound to know the laws. These early so-called codes, especially this code of Edward I, although it caused him to be called the English Justinian, because it was the first attempt of putting any large body of the Anglo-Saxon laws in writing at all, are still not at all _codes_ in the technical sense. This one was merely a collection of a certain number of laws reduced to writing and re-enacted by Edward I. We note here the phrase "common right shall be done to rich and poor," rather an interesting landmark; it shows what progress was being made by the people in establishing their rights as freemen and to equal laws. For the laws of Norman England mainly applied to land-owners, and were made by the barons, the only people that had property; there was but a small class in those early days between the land-owners and actual serfs, villeins, who were practically attached to the soil, in a condition almost of servitude; they did service, were not paid wages, and couldn't leave the place where they were born--and both these are tests of slavery. But in the first two centuries after the Conquest the number of freemen very rapidly increased; men who were not property owners, not land-owners, but still freemen. Especially it increased in the towns, for the towns very early established their right to be free, far earlier than the country. It was very early established that the citizens of any town, that is, the members of the guild of the town, duly admitted to the guild, were freemen, and probably before this statute. But this is interesting as a recognition of the fact that there were free poor people--people without property, who nevertheless were neither villeins nor serfs--and that they were entitled to equality before the law, just as we are to-day, as early as 1275. Otherwise, the Statute of Westminster concerns mainly the criminal law. There is one very important provision--because it has been historically followed from then down to now--that there shall be no disturbance of the elections. Elections shall be free and unimpeded, uncontrolled by any power, either by the crown, or Parliament, or any trespasser. That has been a great principle of English freedom ever since, and passed into our unwritten constitution over here, and of course has been re-enacted in many of our laws. That is the feeling which lay behind those statutes which we enacted after our slaves were freed, for the making of elections free in the South; for protecting negroes in the act of voting and preventing interference with them by the Ku Klux Klan. The Democratic party strongly objected and objects still to such legislation on the part of the government, on the ground that the right of regulating elections belongs to the States and not to the Federal government; which, constitutionally speaking, before the Fifteenth Amendment at least, was true. They do not, of course, deny this great old English principle that elections must be free and must not be intimidated or controlled by anybody; but, they say, we left the machinery of the elections in the hands of the States when we adopted the Federal Constitution; and although at our State elections some of the officers elected are Federal officers--as, for instance, the President of the United States, or rather the presidential electors, and members of Congress--nevertheless, when we adopted the Federal Constitution, the founders chose to rely for the machinery of a fair and free election upon the officers of States; so that the Federal government has nothing to do with it, and has no business to send Federal troops to the South; and they called such bills the "force" bill. In theory, of course, those elections were controlled in these bills just as much in the North as in the South; but there being practically no complaint in the North that the negroes were not allowed to vote, as a matter of fact the strength of the Federal government was only invoked in the Southern States. "Fines are to be reasonable." You find that principle in all our constitutions to-day in the clause that there shall be no cruel or unusual punishments, and that fines shall be proportionate to the offence; this principle is expressed also in Magna Charta. Then slander and rape were made criminal at common law; before this only the church took jurisdiction. Slander Is the imputing of crime to a person by speech, by word of mouth. If it be a written imputation, it is libel and not slander. Then in this statute also we find the first import tax upon wool. The constitutionality of revenue taxes, duties, or taxes on imports, was once disputed by our parties; one party denying the constitutional right to impose any tax upon imports except for the strict purpose of raising necessary revenue; the argument being perfectly logical and based upon the constitutional principle we already have had that all taxation must be for the common benefit. Democrats argued that if a tax upon imports was imposed to raise the necessary revenue, that is for the common benefit; but if it was imposed, as it avowedly is imposed in Republican legislation, for the purpose of benefiting certain industries or classes, why that, of course, is not for the common or general benefit and therefore unconstitutional. The trouble with this position is that early English laws were prohibitive of imports--that is, they were imposed for prohibition _before_ they allowed importation on payment of duties. This Statute of Westminster is a landmark, as showing how slow the Commons were in even allowing taxation upon imports at all. They earlier allowed the ordinary direct taxes. All that the Norman kings got they got with the consent of Parliament, direct taxes, for the common benefit; but they struggled for two centuries before they got the permission of Parliament to impose duties, taxes upon imports; here first they finally got it on wool, the thing produced of most value of anything in England; and consequently an important protective duty. It is a curious historical fact that this article, wool, seems to be the chief bone of contention ever since; in our tariffs nothing has been more bitter than the dispute on wool; the duty on wool is the shibboleth of the extreme protectionist.[1] Ohio, which is the home of the strong protection feeling, regards the duty on wool as the corner-stone to the whole fabric. It is argued that "a cheap coat makes a cheap man." In the East the feeling is that the duty on wool makes clothing poor and shoddy, and the prices excessively high for the poor. It is odd to find that the very first thing that did make trouble was the duty on wool, and it is still making the same trouble to-day. [Footnote 1: The "ancient" customs were on wool, woolfels and leather; all other were "evil" customs. Holt, afterward C.J., in "The Great Case of Monopolies."] There is another interesting clause in this statute; I don't know whether in this country so much as there, but it is in England the almost universal custom of ships to have a dog or cat on board. You never will find a coasting vessel without a dog or cat, usually both; and I believe it is for this strange historical reason, as shown in this Statute of Westminster I: In those days all wrecks belonged to the king. (Pretty much everything, in fact, did belong to the king, except the land that was held by book or charter, or such personal property as a man had in his own house--all mines, all franchises, all monopolies, even all whales and sturgeons that were thrown up on the beach--the head to the king and the tail to the queen.) So all wrecks belonged to the king. The result was, that whenever any vessel went ashore the king's officers seized it; and naturally the owner of the vessel didn't like that, because it very often happened that the vessel was perfectly good and could be easily repaired and the cargo saved. It is still a great principle in marine law that if one-half of the cargo is good, the man who owns the vessel cannot surrender and claim from the insurance company as a total loss; it is important still how much of a wreck a wreck is. But in those days the king, even if the vessel was stranded and could be raised, would seize it on the plea it was a wreck. The man who owned the ship would say she is perfectly seaworthy; and then would come the dispute as to what a wreck was. Or even when the vessel was destroyed, a great part of the cargo might be saved, and the owner of the vessel thought it very unjust that the king should claim it all. So the Parliament of England established as part of the liberties of the English merchant or trader that he should still have a property in his wreck; and then the question came up as to what was a wreck. It was generally admitted that when all hands were lost, that was a wreck; but they wanted to get as narrow a definition as they could, so they got Parliament to establish this law, that in future nothing shall be considered a wreck out of which a cat or a dog escapes alive; and from that time until the present day no vessel coasts about England without carrying a cat or dog. But the great achievements of legislation up to 1300 remain the re-establishment of English law, as shown in the great charters of John, Henry III, and the confirmation of Edward I. And Magna Charta had to be read once a year (like our Declaration of Independence), and for breach of it a king might be excommunicated; and Henry III himself, according to Cobbet, feared that the Archbishop of Canterbury was about to do so. IV EARLY LABOR LEGISLATION, AND LAWS AGAINST TRUSTS (1275) Far the most important phrase to us found in the Statute of Westminster I, save perhaps that common right should be done to rich and poor, is to be found in this sentence: "Excessive toll, contrary to the common custom of the realm," is forbidden. The statute applies only to market towns, but the principle established there would naturally go elsewhere, and indeed most towns where there was any trade were, in those days, market towns. Every word is noticeable: "Excessive toll"--extortion in rates. As this statute passed into the common law of England and hence our own, it has probably always been law in America except, possibly, in those few States which expressly repealed the whole common law[1] and those where civil law prevailed.[2] It was therefore equally unnecessary to adopt new statutes providing against extortion or discrimination, for the last part of the phrase "contrary to the common custom of the realm" means discrimination. But this is one of the numerous cases where our legislatures, if not our bar and bench, erred through simple historical ignorance. They had forgotten this law, or, more charitably, they may have thought it necessary to remind the people of it. There has been a recent agitation in this country with the object of compelling great public-service companies, such as electric lighting or gas companies, to make the same rates to consumers, large or small. This also was very possibly the common law, and required no new statutes; there are cases reported as far back as the fourteenth and fifteenth centuries where, for instance, a ferryman was punished for charging less for the ferriage of a large drove of sheep or cattle than for a smaller number, "contrary to the common custom of the realm." Nine years before this statute is the Assize of Bread and Beer, attempting to fix the price of bread according to the cost of wheat, but notable to us as containing both the first pure-food statute and the first statute against "forestalling." [Footnote 1: Florida, Texas, and the old Territory of Dakota.] [Footnote 2: Louisiana, New Mexico, and Arizona.] Now forestalling, regrating, and engrossing are the early English phrases for most of the unlawful or unmoral actions which we ascribe to the modern trust. In fact, there is hardly one legal injury which a trust is said to commit in these days which cannot be ranked under those three heads, or that of monopoly or that of restraint of trade. "Forestalling" is the buying up provisions on the way to a market with intent to sell at a higher price; and the doctrine applied primarily to provisions, that is to say, necessaries of life. Precisely the same thing exists to-day, only we term it the buying of futures, or the attempt to create a corner. We shall find that the buying of futures, that is to say, of crops not yet grown or outputs not yet created, is still obnoxious to many of our legislatures to-day, and has been forbidden, or made criminal, in many States. "Regrating" is defined in some of the early dictionaries as speculating in provisions; the offence of buying provisions at a market for the purpose of reselling them within four miles of the place. The careful regulation of markets and market towns that existed in early times in England would not suffer some rich capitalist to go in and buy all that was offered for sale with intent of selling it to the same neighborhood at a higher price. Bishop Hatto of the Rhine, you may remember, paid with his life for this offence. The prejudice against this sort of thing has by no means ended to-day. We have legislation against speculation in theatre tickets, as well as in cotton or grain. "Engrossing" is really the result of a successful forestalling, with or without regrating; that is to say, it is a complete "corner of the market"; from it our word "grocer" is derived. Such corners, if completely successful, would have the public at their mercy; luckily they rarely are; the difficulty, in fact, begins when you begin to regrate. But in artificial commodities it is easier; so in the Northern Pacific corner, a nearly perfect engrossing; the shares of stock went to a thousand dollars, and might have gone higher but for the voluntary interference of great financiers. Leiter's Chicago corner in wheat, Sully's corner in cotton, were almost perfect examples of engrossing, but failed when the regrating began. All these tend to monopoly, and act, of course, in restraint of trade; the broader meanings of these two latter more important principles we leave for later discussion. (1285) The Statute of Bakers, or Assize of Bread and Ale, is by some assigned to the 13th of Edward I. If so, we find all these great modern questions treated by statute in the reign of the same great law-making king, Edward I, who well was called the "English Justinian"; for, in 1305, twenty years later, we have the first Statute of Conspiracy. This statute only applies to the maintaining of lawsuits; but the Statute of Laborers of 1360 declares void _all_ alliances and covins between masons, carpenters, and guilds, chapters and ordinances; and from this time on the statutes recognize the English common law of conspiracy in general words. As this is one of the most important doctrines of the English law, and moreover one which is most criticised to-day by large interests, both of capital and labor, it will be wise to dwell upon its historical and logical origin in this place, though we shall consider it at length later as it touches various fields of legislation. It is notable for two most important principles: first, that it recognizes the great menace of combined action, and both forbids and punishes combinations to do an act which might be lawful for the individual; second, of all branches of civil, as distinct from criminal, law, it is the one which most largely recognizes intent; that is to say, the ethical purposes of the combination. It has been urged in some judicial opinions that in matters of boycotts, strikes, etc., the law cannot go into the motive; this argument obviously proves too much, for it is no more easy to examine motives in the criminal law, and this is done all the time. A homicide, for instance, will vary in all degrees between justifiable guilt or manslaughter up to murder in the first degree, according to the motive which prompted the act. It is really no more difficult, and the reported cases do not show it to be any more difficult, to consider the motive behind a combination of men or the motive inspiring a series of related acts. The real trouble comes only in the Federal anti-trust act, because the machinery of this clumsy statute, a bill in equity, imposes upon judges the duty of finding the facts. This doctrine of conspiracy is so old in England that I am unable to trace it to its source. From the wording of repeated early statutes it would seem that they recognized this law of conspiracy as already existing and merely applied it to new forms, such as, for instance, the combination of masons, carpenters, and guilds, just mentioned. It is, perhaps, not to us important whether it is originally based on common law or these early statutes, for these statutes are quite early enough to have passed into the common law of England, and consequently into the common law in this country. Moreover, early statutes merely express the common law; therein lies their significance. Now, many State laws and constitutions, as well as most State courts, recognize that the common-law statutes of England existing at least before 1775, if not 1620,[1] are common law in the States of this Union. In a general way, any statute that antedates the time of our settlement we took over as part of our common law. [Footnote 1: 1607 (Virginia, West Virginia, Illinois, Indiana, Missouri, Arkansas, Colorado, Wyoming); 1776 (Florida, Maryland, Rhode Island, Pennsylvania). None, however, are law in New York.] We are now coming also to that great range of statutes, which, on the one hand, control labor and regulate the rights of the laborer, both in his prices and in his hours; and, on the other, those statutes relating to what we call "trusts," conspiracy, and trades-unions, which have made common-law principles which are to-day, all of them, invoked by our courts; and form the precedents of practically all our modern legislation on matters affecting labor, labor disputes, injunctions, strikes, boycotts, blacklists, restraint of trade, and trusts--in fact, the largest field of discussion now before the mind of the American people. The subjects are more or less connected. That is, you have the growth of legislation as to laborers on the one hand, and on the other you have the growth of this legislation as to combinations or conspiracies, trades-unions, guilds, etc. (1304) Now let us begin at that first statute of conspiracy, and find what the definition of a conspiracy is; because it is a very important question to-day, whether we are going to stick to the old common-law idea or not. The very title of this statute is "A definition of conspirators," and it begins: "Conspirators be they that do confeder or bind themselves together by oath, covenant or other alliance" either to indict or maintain lawsuits; "and such as retain men in the Countrie with Liveries or Fees for to maintain their malicious Enterprises, and this extends as well to the Takers as to the Givers." And as it gradually assumed shape and got definite and broad, the idea, we will say, by 1765, when Blackstone wrote, was this: _A conspiracy is a combination by two or more men, persons or companies, to bring about, either an unlawful result by means lawful or unlawful, or a lawful result by unlawful means._ Now so far the definition is admitted. Everybody agrees, both the labor leaders and the courts, on that definition--that when two or more people combine together to effect an _unlawful_ object, it is a conspiracy; which is both a criminal offence under the laws of the land everywhere, and also gives the party injured a right to damages, that is, what we call a civil suit; and furthermore no _act_ is necessary. There is no doubt about that part of the definition. Or where they combine to get a lawful end by unlawful means, as, for instance, when laborers combine to get their employer to raise their wages by the process of knocking on the head all men that come to take their places, that is gaining a lawful end by unlawful means, by intimidation--and is a conspiracy. But now the whole doctrine in discussion comes in: If you have a combination to bring about by _lawful_ means the _injury_ of a third person in his lawful rights--not amounting to crime--is that an unlawful conspiracy? Yes--for it is a "malicious enterprise." So is our law, and the common law of England, yes. And you can easily see the common-sense of it. The danger to any individual is so tremendous if he is to be conspired against by thousands, hundreds of thousands, not by one neighbor, but by all the people of the town, that it early got established as a principle of the common law, and of these early English statutes, that, although one man alone might do an act which, otherwise lawful, was to the injury of a third person, and be neither restrained nor punished for it, he could not _combine with others_ for that purpose by the very same acts. For instance, I don't like the butcher with whom I have been doing business; I take away my trade. That, of course, I have a perfect right to do. But going a step farther, I tell my friends I don't like Smith and don't want to trade with him--probably I have a right to do that; but when I get every citizen of that town together at a meeting and say: "Let us all agree to ruin Smith, we will none of us trade with him"--Smith is bound to be ruined. The common law early recognized this importance of the principle of combination, and therefore it was part of the English common law and is still, barring one recent statute, that a combination to injure a person, although by an act which if done by one individual would be lawful, is nevertheless an unlawful combination; that is, a _conspiracy_ under the law; for all "conspiracies" are unlawful, under the law; the meaning of the word _conspiracy_ in the law is, not an innocent combination, but a guilty one, and anything which is a _conspiracy_ at law can be punished criminally, or will give rise to civil suits for damages by the parties injured, or usually entitle one to the protection of an injunction. A conspiracy, therefore, is not only a guilty combination, of two or more persons, for an unlawful end by any means, or for a lawful end by unlawful means, but also one for an immoral end, a malicious end, as, let us say, the ruin of a third person, or the injury of the public. All the dispute about the law of conspiracy and the statutes and what laborers can do and what employers can do to-day really hinges about that last clause. The labor leaders, the radicals, want to say that nothing shall be a conspiracy where the end is not unlawful and where the acts done are such as, if done by an individual, would not be wrong. In other words, they want statutes to provide that nothing is a conspiracy where the acts done are in themselves lawful if done by one individual. But this English conspiracy law was of the most immense sociological value, in that it did recognize the tremendous power of _combination_. It said, although you don't have to trade with Smith alone, yet a combination of a great many individuals for the purpose of ruining Smith, by all simultaneously refusing to trade with him, is such a tremendous injury to Smith that the law will take cognizance of it and hold that kind of a combination to be unlawful. This definition should be further extended, perhaps, to remind you that the courts hold that there are certain kinds of combinations, contemplating ends which will necessarily result in the use of unlawful means; the most familiar example is picketing. The courts mostly hold that although in theory a labor union can march up and down the highway and peacefully advise non-union men or other laborers not to take their jobs, in practice such action usually, if not necessarily, goes to the point of intimidation; and intimidation is nearly always made unlawful by statute. Now I should only add that it is very important to remember--and even the courts do not always remember it--that the thing being punished as a conspiracy is not the end, but the combining; the conspiracy itself is the criminal act. Suppose in Pennsylvania one thousand men meet and say: "John Smith has taken a job and is a scab, and we will go around and maul him to-night," and they do, or they don't; if they are tried, the fact whether they did maul him or not has nothing to do with the matter of the conspiracy. They might, of course, be tried for assault and battery, or for an attempt to commit murder; but if they are being tried for the _conspiracy_ the criminal act is the combining and meeting, not what they do afterward. Therefore it is of no importance whatever what the result of the matter is. The thing that is criminal is the combining; and this leads to a very curious consequence: All conspiracies are criminal; but the object aimed at may be very slightly so. So that it is perfectly possible to have a conspiracy which shall result to its members in five or ten years in the state-prison, whereas the object itself, the act aimed at, may have been comparatively slight, a mere misdemeanor. Take the case of mere intimidation without assault or battery; one man goes to another and says: "If you take that work I shall smash your head," that is intimidation. Thirty of our States have made that unlawful, but it is only a misdemeanor. But if one thousand men get together and say: "We will go around to tell him we will smash his head," that is conspiracy; and conspiracy may subject them to penalty of years in prison. It has been found in the experience of the English people to be such a dangerous power, this power of combination, that to use it for an unlawful or wrongful end may be more of an offence than the end itself. A combination to injure a man's trade is, therefore, an unlawful conspiracy; well shown in a recent Ohio case where a combination of several persons to draw their money out of a bank simultaneously for the purpose of making it fail, was held criminal. It gives a claim for damages in a civil suit and may be enjoined against. But is it necessarily criminal? It is possible that the offence to the public is so slight that the criminal courts would hardly take cognizance of it in minor cases where there is not some statute expressly providing for a criminal remedy. The Sherman Act, our Anti-trust Act, does so where even two persons conspire together to restrain interstate commerce. It is a crime at common law, however slight, for even two to combine to injure any person's trade. But, independent of statutes, suppose only two persons agree not to buy of a certain butcher in Cambridge: in theory, he might have a civil remedy; but it may be doubted that it would amount to a criminal offence. _Lex non curat de minimis_. So, it is an offence under most State anti-trust laws, as it was at the common law, to fix the price of an article--that is restraint of trade--or to limit the output. Two grocers going to the city in the morning train agree that they will charge seven dollars a barrel for flour during the ensuing week; two icemen, to harvest only a thousand tons of ice. The contract between them could not be enforced; it is undoubtedly unlawful; but it would hardly be a criminal offence at the common law. There is, at least at the common law, some middle ground between those contracts which are merely unenforceable, and those which subject the co-makers to a criminal liability; although under the cast-iron wording of a statute it may be that no such distinction can be made. Independent of combination, there is probably no legal wrong in merely wishing ill to a man, withdrawing one's custom from him, competing with him, or even, possibly, in injuring his trade. There is an ancient case where the captain of an English ship engaged in a certain trade, to wit, the slave trade, arrived off a beach on the coast of Africa and was collecting his living cargo, when a second ship, arriving too late to get a load itself, fired a cannon over the heads of the negroes, and they, with the chief who was selling them, fled in terror to the forest. The captain of the first ship went back to London and brought suit against the captain of the second ship for injuring his trade and was allowed to recover damages; but it may be doubted if that is good law; although in 1909 a Minnesota court decided that a barber could sue an enemy if he maintained an opposition barbershop solely for the purpose of injuring his business; and a few years ago in Louisiana a street railway foreman was held liable in damages for instructing his men not to frequent the plaintiff's store.[1] I say to you: "Do not trade with Smith, he is not a good person to deal with," or, "Do not take employment with him, he will treat you cruelly"; and in either case, unless I can be convicted of slander, he has no remedy against me if I am acting alone. [Footnote 1: Tarleton _v_. McGawley, Peak, N.P.C. 270; Tuttle _v_. Buck, 110 N.W. 946; Graham _v_. St. Charles St. Ry. Co., 47 La. Ann. 214.] Now, this great law of conspiracy applies equally and always to combinations of capital or of employers, to trusts, contracts in restraint of trade and blacklists, as well as to unlawful labor combinations, unlawful union rules, and boycotts. The statutes directed against both originated about the same time and have run historically on all-fours together. The old offences of forestalling and regrating may have been lost sight of, and possibly the statutes against them fallen into disuse, although they were expressly made perpetual by the 13th Elizabeth in 1570 and not repealed until the 12th George III in 1772; but the principle invalidating restraint of trade and contracts in restraint of trade remained as alive as that prohibiting unlawful combinations of labor. The latter, indeed, has largely disappeared. Both strikes and trades-unions, once thought unlawful in England, are made lawful now by statute, but a contract in restraint of trade or a monopolistic combination of capital is as unlawful as it ever was both in England and in this country; and the common law is only re-enforced by our State statutes and applied to matters of interstate commerce as well, by the Sherman Act. Closely connected with both is the principle of reasonable rates in the exercise of franchises; excessive toll contrary to common custom, as we found forbidden in 1275. The first statute against forestalling merely inflicts a punishment on forestallers and dates ten years later, 1285, though the time of this, the Statute concerning Bakers, is put by some still earlier, with the Assize of Bread and Beer, in 1266. It provides the standard weight and price of bread, ale, and wine, the toll of a mill. It anticipates our pure-food laws and punishes butchers for selling unwholesome flesh or adulterating oatmeal, and says "that no Forestaller be suffered to dwell in any Town, which is an open Oppressor of Poor People ... which for Greediness of his private Gain doth prevent others in buying Grain, Fish, Herring, or any other Thing to be sold coming by land or Water, oppressing the Poor, and deceiving the Rich, which carrieth away such Things, intending to sell them more dear,... and an whole Town or a Country is deceived by such Craft and Subtilty," and the punishment is put at a fine at the first offence with the loss of the thing bought, the pillory for the second offence, fine and imprisonment for the third, and the fourth time banishment from the town. The first definition of forestalling is here given. Our modern equivalent is the buying of futures or dealing in stocks without intent to deliver, both of which have been forbidden or made criminal in many of our States. And forestalling, regrating, and engrossing were things early recognized as criminal in England, and these statutes embody much of what is sound in the present legislation against trusts. Forestalling was very apt to be done in a _staple_, that is, in the town which was specially devoted to that article of trade; so that the laws of forestalling got very much mixed up with the laws of the staple; but forestalling would equally mean going into any market and buying up all the production. If the article was produced abroad, the forestaller would try to buy up the entire importation. (1352) We now find another statute; it applies to wines and liquors "and all other wares that come to the good towns of England," and the penalty imposed by that law was that the forestaller must forfeit the surplus over cost to the crown and be imprisoned two years. We are still enforcing remedies of that kind in our anti-trust laws, only instead of having him forfeit the surplus to the crown we usually have him pay damages, sometimes treble damages to the persons injured. In the Beef Trust case, the parties were duly convicted, and instead of being imprisoned, they were fined $25,000. In other words, we still have not the courage to go to the length that our ancestors did in enforcing the penalties of these unlawful combinations. Of course it is a much more difficult thing to have forestalling and engrossing laws against foreign importations than against home productions; and so to-day we have not tried, except by a tariff, forestalling laws against foreign importations, but we have attempted to apply them very much as to home productions. In England, however, the statute at that time said that a person who bought up all the foreign product must forfeit all the profits to the state. Now this is nothing but the "Iowa idea" of two years ago. It was suggested very urgently by Governor Cummins that there should be a law providing that where a trust got complete control of a certain industry in this country its surplus profit should be forfeited either indirectly by the taking off of the tariff, or by way of a franchise tax, that is, of a United States tax upon its franchises, which could be increased in such a way as to tax it out of existence if it persisted. The latter remedy is at the root of President Taft's new corporation tax, but Congress has not yet applied the former, although it was very seriously advocated that there should be statutes which should indirectly forfeit the profits of the trust that had secured a monopoly; that is an engrossing trust--covin or alliance, as our ancestors would have called it--"a gentleman's agreement"--and that it should be done by a reduction of the tariff on the articles in which that trust dealt; this reduction to be ordered by the president. When he determined that a trust had completely engrossed an industry, he might say so by proclamation; and then the act of Congress should go into effect and the duties upon that product be abolished, all the protection of the trust taken away. There is a trouble with such legislation, in that it may be said to allow the president to make the law; and under our Constitution the president cannot make laws. The legislative branch and the executive branch of the government must be kept distinct; and it probably would be argued by constitutional lawyers, and in this instance by either party that was not in favor of such legislation, that to reduce the duties of such a class of goods was a legislative act, and therefore any such law would be unconstitutional because the president cannot legislate. But the point I wish to make now in both these cases is the exact correspondence of the problem; what are remedies to-day were remedies five hundred years ago. So far we have found nothing new, either in remedy or offence. (1349) Now there is a third great line of legislation that we must consider in connection with these other two, and that is the Statutes of Labor. It was the custom in early times to attempt to regulate prices; both of wages and commodities. The first Statute of Laborers dates from 1349. Its history was economic. They had had a great plague in England known as the Black Death; and it had carried off a vast number of people, especially the laboring people. There was naturally great demand for workers. Laborers were very scarce. It is estimated that one-third of the entire population had died; and there has never been a time when wages were so high relatively, that is, when wages would buy so much for the workingman, as about the middle of the fourteenth century. But the employers were no fonder of high wages than they are to-day. All England was used to sumptuary laws, laws regulating the price of commodities, and villeins still existed. They were only just beginning to consider agricultural laborers as freemen; they were used to the notion of exerting a control over laboring men, who were still often appendant to the land on which they worked, for it was unlawful for an agricultural laborer to change his abode; and in many other ways they were under strict laws. So that it didn't seem much of a step to say also, we will regulate the rate of wages--particularly as the payment of wages in money was rather a new thing. Probably two or three centuries before most wages were paid in articles of food or in the use of the land. So they got this first Statute of Laborers through; it required all persons able in body under sixty to do labor to such persons as require labor or else be committed to gaol. That, of course, is compulsory labor; the law would therefore be unconstitutional with us to-day except in so far as it applied, under a criminal statute, in regard to tramps or vagrants. In some States we commit tramps and vagrants to gaol if they won't do a certain amount of work for their lodging, under the theory that they have committed a criminal act in being vagrants. Otherwise this principle, a law requiring all persons to work, is now obsolete. Then it went on to say, no workman or servant can depart from service before the time agreed upon; lawful enough, to-day, although laborers do not like to make a definite contract. The South, however, has adopted this principle as to agricultural labor, just as in the England of the fourteenth century. Southern States have an elaborate system of legislation for the purpose of enforcing labor upon idle negroes, which, when it creates a system of "peonage," is forbidden by the Federal laws and Constitution. They are compelled, as in the old English statute, to serve under contract or for a period of time, and if they break it, are made liable by this statute to some fine or penalty imposed by the nearest justice of the peace; and when they cannot pay this, they may be Imprisoned. Finally, this Statute of Laborers first states the principle that the old "wage and no more" shall be given, thus establishing the notion that there was a legal wage, which lasted in England for centuries and gave rise to the later law under which strikes were held unlawful. Here, they meant such wages as prevailed before the Black Death. (1350) The next year the statute is made more elaborate, and specifies, for common laborers, one penny a day; for mowers, carpenters, masons, tilers, and thatchers, three pence, and so on. It is curious that the relative scale is much the same as to-day: masons a little more than tilers, tilers a little more than carpenters; though unskilled labor was paid less in proportion. The same statute attempts to protect the laborer by providing that victuals shall be sold only at reasonable prices, which were apparently fixed by the mayor. Here, therefore, we have the much-discussed Standard Wage fixed by law, but in the interest of the employer; not a "living wage" fixed in the interest of the employee, as modern thought requires. The same statute makes it unlawful to give to able-bodied beggars, which is of a piece with the compulsory labor of the able-bodied. Now this first Statute of Laborers, which led to centuries of English law unjust to the laborers, it is interesting to note, was possibly never a valid law, for it was never agreed to by the House of Commons. However that may be, the confirming statute of 1364 was duly enacted by Parliament, and this was not in terms repealed until the year 1869, although labor leaders claim it to have been repealed by general words in the 5th Elizabeth. Thorold Rogers tells us that those, after all, were the happy days of the laborer--when masons got four pence a day, and the Black Prince, the head of the army, only got twenty shillings--sixty times as much. This is a fair modern proportion, however, for military and other state service; though we pay the president a salary of nearly double that proportion to the yearly pay of a carpenter. But then, these English statutes applied mainly to agricultural labor; and domestic labor was paid considerably less. This Statute of Laborers was again re-enacted in 1360, with a clause allowing work in gross, and forbidding "alliances and covins between masons, carpenters, and guilds." Work "in gross" means work by contract, piece-work, thus made expressly lawful by statute in England in 1360, but still objected to by many of our labor unions to-day. The provision against alliances and covins was extended to cover trades-unions, their rules and by-laws, as well as strikes, which were also considered combinations in restraint of trade. Now this was never law in this country. There was a very early case in Pennsylvania, while it was still a colony, and there were others in the States soon after, which held that the Statutes of Laborers were never law in America. Our statutes early authorized trades-unions, but without this there is, I think, no American case where either a trades-union or a simple strike was held to be an unlawful combination. It was these early statutes which gave rise to the law that existed until the nineteenth century in England, that both strikes and unions were unlawful; a strike because it was usually a combination to raise the rate of wages, which was in theory fixed by law. Therefore, a strike was a combination with an unlawful aim, consequently a conspiracy. The logic is simple; and in the same way a trades-union was certainly an alliance between skilled workmen, and as such forbidden under the Statute of Laborers, besides being a combination in restraint of trade. Now the guild, in so far as it was a combination of a trade in a town, was a perfectly lawful thing; in so far as it bore upon the right of a man to be a freeman, it was a perfectly lawful thing; it was only from the other end, from this statute I read as to combinations, that two or three centuries later they got the notion that a trades-union was an unlawful thing; so you may say that a trades-union in England has a lawful root and an unlawful root, and it is rather important to see from which each class springs. The first case in which the modern strike was considered was a case known as the Journeymen Tailors' case, which happened more than two hundred years ago; and in that case it was definitely held to be an unlawful combination, while the first case on the modern boycott, where an injunction was awarded, is as late as 1868, this being the origin of that process which has evoked so much criticism here, the use of the injunction in labor disputes. The unskilled laborers in England have never combined; the only people who combined were the guilds, the skilled men, and in so far as they combined they did it rather as capitalists, employees, or as freemen, to govern the town; this was a lawful object; and the guilds rapidly grew into little aristocracies. They very soon ceased to be journeyman laborers, and became combinations of employers. Thus, the guild movement didn't amount to much in bringing about the modern trades-union or combinations of laboring men; it began before it occurred to these latter that they also could combine; just as, even now, it is more difficult among _women_ to get them to join trades-unions, or for working women to combine; they have not apparently got into that stage of evolution; and so with the negroes in the South. But about the end of the eighteenth century you begin to find the first strikes and combinations of workingmen; and then what the courts promptly applied to them was not the old line of statutes, the historical common-law growth, deriving from a guild which in its origin was a lawful body and so making the union free and lawful, but naturally--for the magistrates were capitalists and land-owners, and all the courts were in sympathy with that class--they went back to the long series of Statutes of Laborers, and said "this is a combination of workingmen to break the law by getting more than lawful wages," and consequently found both combinations unlawful, trades-unions and strikes, as well as when they were combinations to injure somebody, what we should now call a boycott. The great Statute of Laborers which was for centuries supposed to settle the law of England is that of Elizabeth in 1562. Meantime, agricultural labor as well as industrial was getting to be free. A statute of 1377, which requires villeins refusing to labor to be committed to prison on complaint of the landlord, without bail, itself recognizes that villeins fleeing to a town are made free after a year and day's habitation therein. In 1383 came Wat Tyler's rising; the villeins demanded a commutation of agricultural labor to a money rent (four pence) and full freedom of trade and labor in all the market towns; and about this time was great growth of small freeholders. (1388) The Statute of Richard II restricts laborers to their hundred and makes it compulsory for them to follow the same trade as their father after the age of twelve. The wages of both industrial and agricultural laborers are again fixed-shepherds, ten shillings a year; ploughmen, seven; women laborers, six shillings, and so on. Servants are permitted to carry bows and arrows, but not swords, and they may not play tennis or foot-ball. And here is the historical origin of the important custom of exacting recommendations: servants leaving employment are required to carry a testimonial, and none are to receive servants without such letter--the original of the blacklist. Here, also, we find the beginning of poor-law legislation, those unable to work are to be supported in the town where born. Villeinage, which began at the Norman Conquest, according to Fitz-Herbert, "because the Conqueror gave lordships with all the inhabitants to do with them at their pleasure to his principal followers, and they, needing servants, pardoned the inhabitants of their lives, and caused them to do all manner of service"--was now abolished by compensation in a money wage payment. The institution of villeinage is last mentioned in a commission of Queen Elizabeth, 1574, directing Lord Burleigh and others in certain counties to compound with all such bondmen or bondwomen for their manumission and freedom. (1389) The next year the practice of fixing wages at a permanent sum is abandoned and they are to be fixed semi-annually at Easter and Michaelmas by a justice of the peace. In 1402 we find the remarkable provision that laborers are not to work on feast days nor for more than half a day before a holiday. Such legislation would hardly be necessary in modern England, where, in many trades, no one works for a whole day after the holiday as well. In 1425 is another statute forbidding masons to confederate themselves in chapters; and in 1427 the attempt to fix wages by law is again abandoned and they are to be fixed by the justices as in 1389, "because Masters could not get Servants without giving higher Wages than allowed by the Statute." (1436) Now, perhaps, we find the first use of the expression "restraint of trade," that most important phrase, in a statute forbidding by-laws of guilds or corporate companies "in restraint of trade," also forbidding unlawful ordinances by them as to the price of their wares "_for their own profit and to the common, hurt of the people_," and such by-laws are made penal and invalid except when approved by the chancellor; and this statute of Henry VI is re-enacted again in 1503 under Henry VII, where by-laws of guilds, etc., restraining suits at law are made unlawful, and so "_ordinances against the common weal of the people_." The meaning and importance of such legislation as this has been, I hope, made clear above. Note the words "_to the common hurt of the people_" and "_against the common weal of the people_." From this century, at least, therefore, dates that doctrine of the common law which makes unlawful any contract or combination in restraint of trade, and it was left for the succeeding century to develop the last great principle, that against monopoly, caused either by unlawful combination of individuals or grant by the crown itself. The right to labor or to trade was thus fully established in England, and from the very earliest times we find statutes that merchants may freely buy and sell. The Statute of York, to this effect (1335), is re-enacted sixteen years later, and again under Richard II in 1391; and their right to carry away one-half the value of their imports in money, spending the other half in English commodities, in 1401. This general right of trade may be defined as the right of any man to work at what trade he chose, and to buy or sell what and where he will, in the cheapest market. This right was indeed fundamental and needed no express statute. But all these laws concerning by-laws or combinations to prevent people from exercising their trade, or showing what were the liberties of trade in London and other towns (of which there are many) are exemplifications of it. That this law is far older than the statutes is well shown by an actual law report of a case decided in 1221 and first published by the Selden Society in 1877: "The Abbot of Lilleshall complains that the bailiffs of Shrewsbury do him many injuries against his liberty, and that they have caused proclamation to be made in the town that none be so bold as to sell any merchandise to the Abbot or his men upon pain of forfeiting ten shillings, and that Richard Peche, the bedell of the said town, made this proclamation by their orders. And the bailiffs defend all of it, and Richard likewise defends all of it and that he never heard any such proclamation made by anyone. It is considered that he do defend himself twelve-handed (with eleven compurgators), and do come on Saturday with his law." This is a remarkable report, for in twelve lines (ten lines of the law Latin) we have here set forth all the important principles of the law of boycott. The abbot complains that the Shrewsbury people do him many injuries "against his liberty," _i.e._, the abbot claims a constitutional right to freely conduct his own business; then we have the recognition of the threat of a boycott as a particularly illegal act: "They have caused _proclamation_ to be made that none sell merchandise to the abbot." This is nothing but our modern "unfair list." The defendants admit the illegality of their conspiracy, because they deny it as a fact; and the bedell likewise denies that he ever made such proclamation or threat, whereupon (the plaintiff being a man of the church) they are set to trial by wager of law instead of by actual battle, neither party nor the court making any question of the illegality both of the conspiracy and of the act complained of. There is no question then that all contracts in unreasonable restraint of trade were always unlawful in England and are so therefore by our common law. There was probably no real necessity for any of our anti-trust acts, except to impose penalties, or, as to the Federal or Sherman Act so-called, to extend the principles of the common law to interstate commerce, which is under the exclusive jurisdiction of the Federal government. The common law, however, made the exception of _reasonable_ restraint of trade, which the Sherman Act does not; that is to say, a contract between two persons, one of whom sells his business and good-will to the other and agrees not to embark in the same trade for a certain number of years or in a certain prescribed locality, was a reasonable restriction at the common law. So, if two merchants going down town to their business agree in the street car that they will charge a certain amount for a barrel of flour or a ton of coal that week, this would probably be regarded as reasonable at the common law; but the common law, like these early statutes of England, looked primarily, if not exclusively, to the welfare of the consumer; they always speak of the common weal of the people, or of combinations to the general hurt of the people, and general combinations to fix prices or to limit output are therefore always unlawful; so a combination that only one of them should exercise a certain business at a certain place--like that of our four great meatpacking firms, who are said to have arranged to have the buyer for each one in turn appear in the cattle market, thus being the only buyer that day--would be unlawful, when the restraint of trade resulting from an ordinary purchase would not be. The fixing of ordinary prices, not tolls, was thoroughly tried in the Middle Ages and failed. Nor has it been attempted since as to wages, except in New Zealand by arbitration, and in England and (as to public labor) in the State of New York and a few other States where we have a recent statute that all employment in public work (that is, work for any city, county, or town, or the State, or for any contractor therefor) must be paid for "at the usual rate of wages prevailing in the trade"; this principle, taken from the last form of the English Statute of Laborers, being passed in the interest of the laborers themselves and not of the employers, as it was in early England. The result of this first piece of legislation was to impose some twenty thousand lawsuits upon the city of New York alone; the laborers working for a year or two at the rates paid by the city and then, after discharge, bringing suit and claiming that they had not been paid the "usual rate" of the trade; and as there were very heavy penalties, it is said to have cost the city of New York many millions of dollars. In the same way the union idea of having all trades under the control of an organization was carried to its extreme result in the Middle Ages also, so that the guilds became all-powerful; they imposed their rules and regulations to such an extent that it was almost impossible for any man to get employment except by their permission and under their regulation, or without membership. They naturally developed into wealthy combinations, more of employers than of journeymen, until they ended as the richly endowed dinner-giving corporations that we see in the city of London to-day. In France, at least, they were considered the greatest menace to labor, and were all swept away at the time of the French Revolution amid the joy of the masses and the pealing of bells. Unfortunately, our labor leaders are sometimes scornful of history and unmindful of past example; the fact that a thing has been tried and failed or has, in past history, developed in a certain manner, carries no conviction to their minds. (1444) A servant in husbandry had to give six months' notice before leaving and wages were again fixed; and in 1452, the time of Jack Cade's Rebellion, one finds the first prototype of "government by injunction," that is to say, of the interference by the lord chancellor or courts of equity with labor and the labor contract, particularly in times of riot or disorder. But the first trace of this practice, now obnoxious to many under the phrase quoted, dates back to 1327, when King Edward III found it necessary to adopt some more effectual measures of police than those which already existed. For this purpose justices of the peace were first instituted throughout the country with power to take security for the peace and bind over parties who threatened offence.[1] Fifty years later, in the reign of Richard II, it was found necessary to provide further measures for repressing forcible entries on lands. The course of justice was interrupted and all these provisions were rendered in a great degree ineffectual by the lawless spirit of the times. The Statute of 1379 recites that "our Sovereign Lord the King hath perceived ... that divers of his Liege People claiming to have Right to divers Lands, Tenements, and other Possessions, and some espying Women and Damsels unmarried ... do gather them together to a great Number of Men of Arms and Archers ... not having Consideration to God, but refusing and setting apart all Process of the Law, do ride in great Routs ... and take Possession of Lands and in some Places do ravish Women and Damsels, and bring them into strange Countries." Therefore the Statute of Northampton, the 2d of Edward III, is recited and confirmed and the justices of the king's commission ordered to arrest such persons incontinent without tarrying for indictment or other process of law. But that this summary process was already obnoxious to the people was shown by the fact that it was repealed the very following year because the articles "seemeth to the said Commons very grievous." Only the Statute of Northampton is preserved, and those who had been so taken and imprisoned by virtue of said article without other indictment "shall be utterly delivered." [Footnote 1: See "Injunctions in Conspiracy Cases," Senate Document No. 190, 57th Congress, 1st Session, p. 117.] (1384) It is noteworthy that at the same time that this extra-common-law process begins in the statutes, we have other statutes vindicating the power of the common-law courts. For instance, six years later, in the 8th of Richard II is a clause complaining that "divers Pleas concerning the Common Law, and which by the Common Law ought to be examined and discussed, are of late drawn before the Constable and Marshal of England, to the great Damage and Disquietness of the People." Such jurisdiction is forbidden and the common law "shall be executed and used, and have that which to it belongeth ... as it was accustomed to be in the time of King Edward." Again, four years later, it is ordained "that neither Letters of the Signet, nor of the King's Privy Seal, shall be from henceforth sent in Damage or Prejudice of the Realm, nor in Disturbance of the Law." (1388) The next year we find a new Statute of Laborers confirming all previous statutes and forbidding any servant or laborer to depart from service without letters testimonial, and if found wandering without such letters shall be put in the stocks. Short of the penalty of the stocks, a condition of things not very dissimilar is said to exist to-day in the non-union mining towns of the West. In Cripple Creek, for instance, no one is allowed without a card from his previous employer which, among other things, sets forth that he is not associated with any labor union. This Statute of Richard II also provides that artificers and people of Mystery, that is to say, handicraftsmen, shall be compelled to do agricultural labor in harvest time. (The high prices of to-day, some one has said, are really caused not so much by the trusts or even by the tariff, as by voluntary idleness; if a man will not work, neither shall he eat, but the lesson has been forgotten! In the more prosperous parts of the country, in Massachusetts, for instance, it is sometimes impossible to give away a standing crop of grain for the labor of cutting it, nor can able-bodied labor be secured even at two dollars per day. The Constitution of Oklahoma, which goes to the length of providing that there shall be no property except in the fruits of labor, might logically have embodied the principle of this Statute of Richard II; and we know that in Kansas they invite vacation students to harvest their crop. So in France, practically every one turns out for the vendange, and in Kent for the hops; a merriment is made of it, but at least the crop is garnered.) The Statute of Richard goes on to complain of the outrageous and excessive hire of labor, and attempts once more to limit the prices, but already at more than double those named in the earlier statute: ploughmen seven pence, herdsmen six pence, and even women six pence a day, and persons who have served in husbandry until the age of twelve must forever continue to do so. They may not learn a trade or be bound as apprentices. Servants and laborers may not carry arms nor play at foot-ball or tennis; they are encouraged, however, to have bows and arrows and use the same on Sundays and holidays. Impotent beggars are to be supported by the town where they were born. (1387) The barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common-law tribunals;[1] and in 1389 we find another statute complaining of the courts of the constable and marshal having cognizance of matters which can be determined by the common law, and forbidding the same; and the statute of the previous year concerning laborers is confirmed, except that wages are to be fixed by a justice of the peace, "Forasmuch as a Man cannot put the Price of Corn and other Victuals in certain." Shoemakers are forbidden to be tanners, and tanners to be shoemakers; a statute which seems to have been much debated, for it is continually being repealed and re-enacted for a hundred years to follow. [Footnote 1: Spence, I Eq. Jur., 346.] (1392) The Statute of York, giving free trade to merchants, is re-enacted, and it is specified that they may sell in gross or by retail "notwithstanding any Franchise, Grant or Custom," but they are forbidden to sell to each other for purposes of regrating and they must sell wines in the original package and "Spicery by whole Vessels and Bales." "All the weights and measures throughout the Realm shall be according to the Standard of the Exchequer"--save only in Lancashire, where they are used to giving better measure. (1402) Laborers are forbidden to be hired by the week or to be paid for holidays or half days. In 1405 the old Statute of Laborers is re-enacted, particularly the cruel law forbidding any one to take up any other trade than husbandry after the age of twelve, nor can any one bind his child as apprentice to learn a trade unless he has twenty shillings per annum in landed property. (1414) The 2d of Henry V recites the Statute of the 13th of Henry IV against rioters, but power to suppress them is intrusted to the justices of the peace and the common-law courts "according to the law of the land." Only if default is made in suppressing them the king's commission goes out under the great seal, showing the beginning of the use of the executive arm in suppressing riots, of which our most famous instance was the action of President Cleveland in the Pullman-car strike in Chicago in 1893. And in the same statute the chancery arm is invoked, that is to say, if any person complain that a rioter or offender flee or withdraw himself, a bill issues from the chancery, and if the person do not appear and yield, a writ of proclamation issues that he be attainted, a more severe punishment than the six months' imprisonment usually meted out to our contemners. It is interesting to notice that the bills (petitions for legislation) are now in English; though the statutes enacted are still in French or Latin. (1425) A statute recites that "by the yearly Congregations and Confederacies made by the Masons in their general Chapiters and Assemblies, the good Course and Effect of the Statute of Labourers be openly violated ... and such Chapiters and Congregations are forbidden and all Masons that come to them are to be punished by imprisonment and fine"--an excellent example of the kind of statute which led to the doctrine that trades-unions were forbidden by the common law of England. (1427) The next year the attempt to fix wages by law is again abandoned, and they are to be fixed by the justices, "because Masters cannot get Servants without giving higher Wages than allowed by the Statute." The exact time of the appearance of the modern corporation has been a matter of some doubt. Its invention was probably suggested by the monastic corporation, or the city guild. This whole matter must be left for a later chapter, but we must note the phraseology of a statute of Henry VI in 1426, which speaks of "Guilds, Fraternities, and other Companies corporate," and requiring them to record before justices of the peace all their charters, letters-patent, and ordinances or by-laws, _which latter must not be against the common profit of the people_, and the justices of the peace or chief marshal are given authority to annul such of their by-laws as are not reasonable and for the common profit--the fountain and origin of a most important doctrine of the modern law of restraint of trade and conspiracy. (1444) Servants in husbandry purposing to leave their masters were required to give warning by the middle of the term of service so that the "Master may provide another Servant against the End of his Term." Again a maximum price is fixed for the wages of servants, laborers, and artificers: the common servant of husbandry, fifteen shillings a year, with money for clothing, eleven shillings; and women servants ten shillings, with clothing price of four shillings, and meat and drink. But winter wages are less and harvest wages more than in summer; and men who refuse to serve by the year are declared vagabonds. (1450) John Cade was attainted of treason, and in 1452 comes the famous statute giving the chancellor power to issue writs of proclamation against rioters or persons guilty of other offences against the peace, with power to outlaw upon default, quoted by Spence[1] as the foundation of the practice of issuing injunctions to preserve the peace, now bitterly complained of by Mr. Gompers and others; and it is most noteworthy as sustaining this adverse view that the Statute of Henry VI itself makes special exception, "That no Matter determinable by the Law of this Realm shall be by the same Act determined in other Form than after the Course of the same Law in the King's Courts having Determination of the same Law," and the act itself is only to endure for seven years. [Footnote 1: "1 Eq. Jur.," 353.] (1487) This year a Statute of Henry VII originates the criminal jurisdiction of the Court of Star Chamber,[1] an interesting statute reciting that the Mayor and Aldermen of London have forbidden citizens to go to fairs or markets, or trade outside the city, which is declared "contrary to the common weal of England" and the ordinance made void. In 1495 the laws against riots and unlawful assemblies are recited and confirmed, and authority to punish and prevent them given to the justices and the common-law courts, except that the justices themselves in a case of such disorder by more than forty persons are to certify the names of the offenders to the king and his council (that is to say, the Star Chamber) for punishment. In 1495 the wages of servants in husbandry and of artificers and shipwrights, master-masons and carpenters are again fixed, with the hours of work and meal time provided; in March, from 5 a.m. till 7 or 8 p.m., but with half an hour for breakfast, an hour and a half for dinner, and half an hour for supper, and in winter time from dawn till sunset, and "said Artificers and Laborers shall slepe not by day" except between May and August; but this whole act "for the common wealth of the poor artificers" is repealed the following year. [Footnote 1: This court, says Lord Coke, was originally established to protect subjects against the offences and oppressions of great men by extortion, frauds, riots, unlawful assemblies, etc., leaving ordinary offences to the courts of common law, and Clarendon adds that "whilst it was gravely and moderately governed, it was an excellent expedient to preserve the peace and security of the kingdom." Nevertheless, "having become odious by a tyrannical exercise of its powers, it was abolished by a Statute of 16 Charles I."] (1503) This year there is another important statute against private and illegal by-laws, reciting that "companies corporate by color of rule and governance to them granted and confirmed by charters and letters patent of divers Kings made among themselves many unlawful and unreasonable ordinances as well in price of wares as other things for their own singular profit and to the common hurt and damage of the people," and such by-laws are forbidden unless specially authorized by some official such as the chief governor of the city. The law so far dates from the 15th of Henry VI; but the present act goes on to provide that "no masters, fellowships of crafts or rulers of guilds or fraternities make any acts or ordinances against the common profit of the people but with the examination and approval of the Chancellor and Chief Justice of England, and that there shall never be any by-law to restrain any person from suits in the common-law courts." A Federal statute similar to this was proposed by a late president to apply to all corporations, or at least to all corporations conducting interstate commerce; the approval of their by-laws or other contracts to be by the Federal commissioner of corporations; while the last section forbidding trades-unions to deny to their members the right of suing them or other persons in the ordinary courts is part of our constitutional law to-day and much objected to by the unions themselves, as it was in the time of Henry VII The tendency to create special courts (commerce, patents, etc.) seems to be beginning anew, despite the malign history of the ancient courts of the Constable and Marshal, Star Chamber, Requests, Royal Commissions, etc. (1512) Under Henry VIII the penalty for paying higher wages than the law allowed was removed from the employer and applied only to the employee taking the wage; and in 1514 comes perhaps the most elaborate of all the earlier acts fixing the wages and hours of labor. Their meal times and sleep times are carefully regulated, they are forbidden to take full wages for half-day's work and forbidden to leave a job until it is finished, and the rates of pay of bailiffs, servants, free masons, master carpenters, rough masons, bricklayers, tilers, plumbers, glaziers, carvers, joiners, shipwrights, ship carpenters, calkers, clinchers, agricultural laborers, both men and women, mowers, reapers, carters, shepherds, herdsmen, and possibly others, are again prescribed; this list of trades in the England of the early sixteenth century is interesting. Bailiffs who assault their overseers may be imprisoned for a year, and an exception is made from the act of all miners of lead, iron, silver, tin, or coal, "called See Cole, otherwise called Smythes Coole," or for making of glass, but that part of the act fixing wages was repealed the very next year as to the city of London. (1514) The abuse of monopolies begins to be shown this year (but see also 1503, above) in a statute complaining of the grant of second patents of a matter already granted; and avoiding in such cases the later patent unless the king express that "he hath determined his pleasure against the first." The appearance of the gypsies in England is marked by a statute of 1530, describing them as "outlandish people called Egyptians," complaining of their robberies, and requiring them to depart the realm. In the same year first appeared the celebrated Act for the punishment of beggars and vagabonds and forbidding beggary, and requiring them to labor or be whipped. Herbert Spencer states in his "Descriptive Sociology" that it punishes with loss of an ear the third conviction for joining a trades-union, which, if true, would justify much of the bitterness of modern labor unions against the common law. The provision evidently referred to (22 Henry VIII, chapter 12, section 4) applies, however, not to guilds, but to "Scolers of the Universities of Oxford and Cambridge that go about begging not being authorized under the seal of the said Universities" as well as to other beggars or vagabonds playing "subtile, crafty and unlawful games such as physnomye or palmestrye." The same year is an Interesting statute against foreign artificers exercising handicrafts in England, not without example in the labor legislation of our modern States; but exempting beggars, brewers, surgeons, and scriveners as not handicraftsmen, possibly the origin of the vulgar notion that those trades are more genteel than skilled labor. (1535) Another statute against sturdy vagabonds and "rufflers found idling after being assigned to labor," and already having their ears so slit, are punishable with death. This year Wales was joined to England; and we see the first act for the suppression of monasteries; the next year came the statute extinguishing the authority of the Bishop of Rome. With the struggle against the Roman Church went the contest for freedom; _inter arma silent leges_; sociological legislation came to an end for the rest of the reign and arbitrary laws passed at the king's desire; in 1536, the act authorizing kings of England, on arriving at the age of twenty-four, to repeal any act of Parliament made during their minority, and in 1539 the "Act that Proclamations made by the King shall be obeyed"--the high-water mark of executive usurpation in modern times. Proclamations made by the king and council were to have the force of acts of Parliament, yet not to prejudice estates, offices, liberties, goods or lives, or repeal existing laws; the cardinal constitutional rights were thus preserved, even as against this royal aggression. (1548) Under Edward VI and Elisabeth we may expect more enlightened legislation, and are not disappointed. Indeed, no one can read the statutes of the great queen without seeing that modern times here begin. Nevertheless, while trade is becoming free, labor is no less severely, if more intelligently, regulated. We first note a short but important statute touching victuallers and handicraftsmen, worth quoting in part: "Forasmuche as of late dayes divers sellers of vittayles, not contented withe moderate and reasonable gayne ... have conspyred and covenanted together to sell their vittels at unreasonable price; and lykewise Artyficers handycrafte men and laborers have made confederacyes and promyses and have sworne mutuall othes, not onlye that they shoulde not meddle one withe an others worke, and performe and fynishe that an other hathe begone, but also to constitute and appoynt howe muche worke they shoulde doe in a daye and what bowers and tymes they shall work, _contrarie to the Lawes and Statutes of this Realme_" (It is extraordinary how closely this old statute sets forth some practices of the modern trades-union.) "Everie person so conspiring covenantinge swearing or offendinge ... shall forfeyt for the firste offence tenne pounds ... or twentie dayes ymprisonment" with bread and water; for the second offence, twenty pounds or the pillory, and for the third offence forty pounds, or the pillory and lose one of his ears. After that he is to be taken as a man infamous and his oath not to be credited at any time, and if there be a corporation of dealers in victuals or of handicraftsmen so conspiring, it shall be dissolved--the origin and precedent of the Sherman Act! This, of course, is the statute which Herbert Spencer cites as making a "third conviction for joining a trades-union punished with loss of an ear"; but he places the date at 1535 instead of 1548. The statute, however, goes on to provide absolute freedom of employment or trade for all skilled mechanics in any town, although not freemen thereof, whether they dwell there or not, any town or guild by-law to the contrary notwithstanding; so that this important statute may be said to establish the most enlightened view that there must be absolute liberty of employment granted any one, only that they must not conspire to the injury of others. Unfortunately, in the very next year this last part is repealed as to the city of London, "Artificers and Craftmen of that ancient City complaining that it was contrary to their ancient privilege," a view as modern as is the law itself. Immediately after this law is one providing that journeymen, clothiers, weavers, tailors, and shoemakers shall not be hired for less than a quarter of a year on penalty of Imprisonment to them and the employer, the statute reciting that, once out of their apprenticehood, they "will not commonly be retained in service by the year, but at their liberty by the day, week or otherwise, to the intent that they will live idly, and at their pleasure flee and resort from place to place, whereof ensuith more incovenyencies then can be at this present expressed and declared"--an inconvenience not unknown in modern intelligence offices. All employers having more than three apprentices shall keep at least one journeyman, and unmarried servants in husbandry must serve by the year. (1550) In the 3d of Edward VI we find the first Riot Act, aimed at persons to the number of twelve or above assembling together and proposing to alter the laws and not dispersing when so required by the sheriff, and even persons more than two and less than twelve assembling for such purpose are subject to fine and imprisonment with treble damages to parties injured, and if forty persons so assemble and do not disperse in three hours, they are declared felons. This statute was re-enacted and made more severe in the reign of Queen Mary. (1562) In the 5th of Elizabeth comes the last and greatest Statute of Laborers. This statute is a consolidation of all previous laws, and it begins by recognizing the principle that the fixing of wages is a mistake and all such laws are repealed so far as they relate to terms of hiring and wages. Servants in certain employments, generally speaking the tailoring and shoemaking trades, may still be hired by the year, and persons unmarried, not having an income of forty shillings a year, may be compelled to serve in their own handicraft. Such yearly servants may not be dismissed or depart during the year except by cause allowed by two justices, nor at the end of a year, without a quarter's warning. Unmarried persons under thirty, not having any trade and not belonging to a nobleman's household, may be compelled to labor at the request of any person using an art or mystery, and all persons between twelve and sixty not otherwise employed may be compelled to serve by the year in husbandry. The masters may not dismiss, nor the servants unduly depart; nor leave the city or parish of their service without a testimonial; that is to say, a certificate of due cause under the seal of the town or constable and two honest householders. The hours of labor are still fixed from 5 A.M. to 7 P.M., between March and September, with two and one-half hours for meal times, drink times, and sleep. From September to May, from dawn to sunset, and sleep times only allowed from May to August. A penalty of one month's imprisonment and fine is imposed on artificers and laborers leaving their work unfinished. Wages are still to be fixed by the justices of the peace, and it is made a penal offence to give or receive higher wages than the lawful rate, and all contracts for higher wages are void. Unmarried women between twelve and forty may be compelled to serve in like manner, and everybody has to work at harvest time, that is to say, artificers as well as laborers. The elaborate law of apprenticeship dates also from this great statute, and no one can use a manual art who has not been apprenticed to the same for seven years. One journeyman shall be kept for each three apprentices; disputes are to be settled by the justices of the peace, and indeed the whole labor contract is regulated as carefully as the most statute-mad of modern labor leaders could desire, though hardly, perhaps, then, in the sole interest of the workingman. If this statute was ever repealed, it was in very recent times. (1571) The year of the statute against fraudulent conveyances, and of another poor law, with provisions for the punishment of "rogues, vagabonds and sturdy beggars," who are defined to include those going about the country "using sybtyll craftye and unlawfull Games or Playes ... Palmestrye ... or fantasticall Imaginacons.... Fencers Bearewardes and Common Players," and the penalty for harboring such vagabonds was twenty shillings. We are a long time from the knighting of Sir Henry Irving. In 1575 comes another act for setting the poor to work, and the punishing of tramps and beggars. In 1571 also is the first formal complaint of monopolies by the Commons. Coal, oil, salt, vinegar, starch, iron, glass, and many other commodities were all farmed out to individuals and monopolies; coal, mentioned first, is still, to-day, the subject of our greatest monopoly; while oil, mentioned fourth, is probably the subject of our second greatest monopoly; and iron, mentioned seventh, is probably the third. Conditions have not changed. The only reason we don't have salt still a monopoly is on account of the numerous sources and processes for obtaining it from mines and from the sea; Fugger, the John D. Rockefeller of the sixteenth century (whose portrait in Munich strongly resembles him), had a monopoly of the salt mines of all Germany. The conditions have maintained themselves, even as to the very articles. This grievance was first mooted in Parliament in 1571 by a Mr. Bell, "who was at once summoned before the Council." This council was the King's Council, or Privy Council--a body roughly corresponding to our United States Senate. He was summoned before the council for objecting because coal, oil, salt, vinegar, starch, iron, glass, were the subjects of monopoly; and he "returned to the House with such an amazed countenance that it daunted all the rest." That is very much the fate of the tariff reformer to-day, if we may credit the tales of those returning from Washington. After a lapse of twenty-six years the Commons ventured again. This time the queen replied that she hoped her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, but promised to examine all patents and abide the touchstone of the law. Nevertheless, four years later the list of articles subject to monopoly was so numerous that when it was read over to the House in 1601 an indignant member exclaimed: "Is not bread amongst them? Nay, if no remedy is found for these, bread will be there before the next Parliament." The Populists openly cursed the monopolies and declared that the prerogatives should not be suffered to touch the old liberties of England. Seeing that resistance was no longer politic, Elizabeth sent a message to the House saying that some of these monopolies should be presently repealed, some superseded, and none put in execution but such as should first have a trial according to law for the good of the people; and Robert Cecil, the secretary, added an assurance that all existing patents should be revoked and no others granted for the future. The Commons waited upon the queen with an address of thanks, to which she replied almost affectionately that never since she had been queen "did I put my pen to any grant but upon pretence made to me that it was good and beneficial to the subjects in general, though a private profit to some of my ancient servants who had deserved well. Never thought was cherished in my heart which tended not to my people's good." Notwithstanding these fair words, the House of Commons found it necessary to enact the Great Statute against Monopolies. (1623) In the beginning, the statute recites that "Your most excellent Majestie in your Royall Judgment ... did In the yeare ... 1610 ... publish in Print to the whole Realme and to all Posteritie, that all Graunt of Monapolyes and of the benefitt of any penall Lawes, or of power to dispence with the Lawe ... are contrary to your Majesties Lawes, which your Majesties Declaracon is truly consonant and agreeable to the auncient and fundamentall Lawes of this your Realme.... Nevertheles ... many such Graunts have bene undulie obteyned ... For avoyding whereof and preventinge of the like in tyme to come, May it please your most excellent Majestic ... that it may be declared and enacted, and be it declared and enacted by the authoritie of this present Parliament That all Monapolies and all Commissions Graunts Licenses Charters and lettres patents heretofore made or graunted, or hereafter to be made or graunted to any person or persons Bodies Politique or Corporate whatsoever of or for the sole buyinge sellinge makinge workinge or usinge of any things within this Realme or the Dominion of Wales, or of any other Monopolies, or of Power Libertie or Facultie to dispence with any others, or to give Licence or Toleracon to doe use or exercise any thinge against the tenor or purport of any Lawe or Statute ... are altogether contrary to the laws of this realm and so are or shall be utterly void and in no wise to be put in use or execution." Section 2 provides that all such monopolies and the force and validity of them ought to be and should forever hereafter be examined, tried, and determined by and according to the common law; section 4, that a party aggrieved might have treble damages, as in our modern Sherman Act. There followed provisos for exempting existing patents for twenty-one years or less for new inventions or like future patents for fourteen years or less, the charters of the city of London, or any custom or customs of London, or any other city or town, for corporations, companies, or fellowships of any art, trade, occupation, or mystery; that is to say, exempting the guilds, but these guilds by this time had long ceased to be societies of actual journeymen or handicraftsmen. This great statute may fairly be classed among the constitutional documents of England, and it left the great fabric of the English common law guaranteeing freedom of labor and liberty of trade, Magna Charta itself recognizing this principle, and the Statute of Westminster I forbidding forestalling and excessive toll contrary to the laws of England, as it has remained until the present day--only rediscovered in the statutes of our Southern and Western States aimed against trusts, and reapplied by Congress, in the Sherman Act, to interstate commerce; but in neither case added to, nor, possibly, improved. Two years before this great statute, the process of impeachment, not employed for nearly two hundred years, had been revived against Sir Giles Mompesson and Sir Francis Mitchell, who in the Parliament of 1621 were impeached "for fraud and oppression committed as patentees for the exclusive manufacture of gold and silver thread, for the inspection of inns and hostelries, and for the licensing of ale-houses. While no definite articles were presented according to modern forms, an accusation was made by the Commons and a judgment rendered by the Lords, condemning both to fine, imprisonment, and degradation from the honor of knighthood." Nevertheless, Charles I revived the system of monopolies and raised revenue by their application to almost every article of ordinary consumption as well as by enormous fines inflicted through the Star Chamber, both important matters leading to his dethronement.[1] Elizabeth granted monopolies on the perfectly madern pretence that a monopoly, be it made by law or by tariff, is for the benefit of the public good, though at the same time possibly a private profit to certain individuals, friends of the sovereign. [Footnote 1: See Dowell, "History of Taxation," vol. I, pp. 204-209.] But all this early legislation of England was far better and more advanced than our own; for in all these questions of duties on exports and duties on imports and monopolies, they never consider the man who has the monopoly, the producer; but always they are avowed to be, petitioned for, declared to be, only in the interests of the _consumer_; which cannot be said to be the case with ourselves. V OTHER LEGISLATION IN MEDIAEVAL ENGLAND (1275) The Statute of Westminster I has sometimes been termed a great English code; it is certainly a comprehensive statement by statute of a considerable portion of existing law. In our consideration of labor and conspiracy laws we have had to include statutes of later centuries. Now, returning to the year of the Statute of Westminster, we found, in 1275, also the Statute of Bigamy, aimed against priests with more than one wife. It is to be noted that this was centuries before the celibacy of priests became one of the doctrines of the Roman Catholic Church. It is also interesting that this early statute refers to the pope as "the Bishop of Rome"--but only as printed since 1543. (1279) The Statute of Mortmain, aimed at the holding of land in large quantities by religious corporations, was a true constructive statute, and the principle it establishes has grown ever since. The law regards with jealousy the ownership of land by any corporation; the presumption is against the power, and it extends to-day to all corporations, and particularly to alien corporations (see chapter 7); and in 1283 came the Statute of Acton Burnel, re-enacted in 1285 and called the "Statute Merchant," equally important. It provides for the speedy recovery of debts due merchants, and is the foundation of all our modern law of pledge, sales of collateral, etc. It is distinctly an innovation on the common law; for in those days there was no method of collecting ordinary money debts. You could levy on a man's land, but there really seems to have been no method of recovering a debt contracted in trade; and this is the first of many statutes adopting foreign ideas as to matters of trade, and the customs of merchants, drawn frequently from the Lombard or Jew traders of the Continent, which, by statute law, custom, or court decision, has since become such a considerable body of the English law as to have a name to itself--the "Law Merchant." This first statute provides for imprisonment for debt; "if he have no goods to be seized the debtor is to be imprisoned, but the creditor shall find him bread and water." A foreigner coming to England to recover a debt may also recover the expenses of his trip; and the statute is further liberal in that it does away with the _Droit d'Aubaine_, that narrow-minded custom by which the goods or personal property of any person who died passing through the kingdom were seized by the authorities and could not be recovered by his heirs. This mediaeval injustice continued for some centuries in Germany and France, and we can hardly say that the notion is extinct in this country when a State like California, by her system of public administrators, practically impounds a large proportion of all personal property owned by non-residents at their death. Cases have been known where it cost the executor more than one-third of the money to collect a mortgage, owned by a deceased citizen of Massachusetts, in California; and for that reason, among others, Eastern lawyers have advised against investments in that State; for the public administrators are usually petty politicians in search of a job. The increasing burden of our State inheritance tax laws, whereby every State wherein a corporation exists besides the State of the deceased seizes its percentage of the stock of such corporation in the hands of the executors, is another step in this direction. This early Statute Merchant, liberal in other respects, still excludes Jews from its benefits. (1284) Jury trial was well established by this time, for the Statute of Wales includes it in its code of procedure for that principality. The great Statute _De Donis_, or Westminster II, came the following year; most interesting to lawyers as the foundation of estates tail; but it also regulates "assizes or juries" that "rich men do not abide at home by reason of their bribes." It also specifically requires indictment "of twelve lawful men at least," and gives an action against sheriffs imprisoning without such warrant "as they should have against any other person." Rape, ten years before made punishable only by two years' imprisonment, is now made an offence punishable by loss of life or member; showing how our ancestors treated a burning question, at least in our Southern States, of to-day. Finally, it confirms and explains the writ _de odio et atia_, the predecessor of the modern _habeas corpus_. Some writers have doubted whether this writ existed as a practical remedy much before the Statute of Charles II; but here it says that parties indicted, etc., are to have the writ _de odio et atia_ "lest they be kept long in prison, like as it is declared in Magna Charta." This can only refer to C. 36 of John's Charter, "the writ of inquest of life or limb to be given gratis and not denied"; and taken in connection with the action for damages just given affords a fairly complete safeguard to personal liberty. It also contains the first game law, protecting "salmons." "There are salmons in Wye," says Shakespeare, and we are reminded of it because the Statute of Winchester in the same year contains a provision that is almost literally quoted by Dogberry in "Twelfth Night." It provides for the gates of great towns to be shut at sunset, and that no citizen should bear arms, and no tavern sell drink after 9 P.M., and then it comes to the duties of the watch, which are described in such like manner that Dogberry's language seems a mere paraphrase. Whoever wrote the play certainly had read the Statutes of the Realm for the year 1285, but so far as I am aware, the Baconians have not yet called attention to this. And the same statute shows us how much better police protection the England of 1285 gave than the New York or Chicago of 1909; for all the people dwelling in the hundred or country (county) if they do not deliver the body of the offender, "shall be answerable for the robberies done and also the damages." The same year was a statute of "The common customs of the City of London," among which was one that "taverns should not be open after 9 P.M. for the selling of wine or ale," a regulation for their "tenderloin," which itself is described in quite modern terms; "none shall walk the streets after curfew." Possibly the same year is the Statute of Bakers, with careful provisions against putrid meat, worthy of consideration by our cold-storage plants. Butchers selling unwholesome flesh, or buying it of the Jews, were severely punished. (1289) The Statute of Quo Warranto is another historical landmark, showing the jealousy our ancestors felt of officials, bureaucracy; a writ specially devised to enable them to challenge the right of any magnate who pretended to power by virtue of holding office, and the predecessor of our modern _quo warranto_, which we still use at all times for that purpose, not only as against officers but to test any special privileges or charters claimed, such as the right to a monopoly, a franchise, a ferry, etc. These may be still tried by _quo warranto_; meaning, by what warrant do you claim to exercise this office, this monopoly, this privilege? About this time is another statute forbidding usury, and permitting Christian debtors to retain half of all debts they may owe to the Jews, who are required to wear the mark of two cables joined on their coats; and there is the great Statute of Westminster III, _Quia Emptores_, affecting land tenures, still of importance to the conveyancers. In 1295 we have the famous Model Parliament; that is to say, the first one where kings, lords, and commons were joined, the legislative branches sitting separately and the Commons represented. Two years later Edward I, carrying on the war in Flanders, was compelled to grant that great confirmation of the charters already referred to, that no aid or tax should be taken but by the common consent of the realm and for the common profit; restoring thus into the recognized charter that important provision of the original Charter of John; and it provides that the great charter shall be read twice a year in every cathedral in England. In our country I am aware of no provision for reading the Constitution, though the Declaration of Independence, an obsolete document, is occasionally read upon the Fourth of July. In 1305 the Anglo-Norman law reports begin, the Year Books. From then to now, at least, we have continuous written reports of all important cases decided in England. This is not to say that we do not have them before (our people, first in the world's history, has the records of all its cases in high courts for nigh a thousand years), but they are now for the first time systematic. (1309) On the accession of Edward II came the Summary of Grievances, recited in the Statute of Stamford as recognized by Edward I at the close of his reign. The seizure of supplies by the king without due payment; the maintenance of courts at the gates of the king's castles in derogation of the common-law courts; the taking of "new customs," two shillings per tun of wine, two shillings for cloth and other imports, "_whereby the price to the people is enhanced"_; the debasement of current coin; that petitions of the Commons to Parliament were not received, etc., etc. All duties were then suspended, in order to know and be advised "what Profit and Advantage will accrue to him and his People by ceasing the taking of those Customs"--a precedent it were to be wished we might have the intelligence to follow to-day--surely better than a tariff commission! Two years later came the New Ordinances, which contain a most interesting precedent, hitherto almost unnoted, of the American principle of having the courts construe the Constitution. Section VI: "It is Ordained, That the Great Charter be kept in all its points in such manner, that if there be in the said Charter any point obscure or doubtful, it shall be declared by the said Ordainours, and others whom they will, for that purpose, call to them, when they shall see occasion and season during their power." Section XXXVIII: "That the Great Charter ... and the Points which are doubtful in it be explained by the advice of the Baronage and of the Justices, and of other sage Persons of the Law." It was ordained that the king should not go out of the realm, a precedent never violated until modern times, and even followed by our own presidents, except for Roosevelt's trip to Panama and Taft's to the borders of Mexico. Again we find "new customs" abolished, "as upon Wools, Cloths, Wines, Avoir de pois, and other Things, whereby the Merchants come more seldom, and bring fewer Goods into the Land, and the Foreign Merchants abide longer than they were wont to do, by which abiding things become more dear," saving only to the king his duty on wool and leather, half a mark for a sack of wool and one mark for a last of leather. "The king shall hold a Parliament once in the year or twice if need be, and that in a convenient place." This principle has maintained itself in the English mind, still more in the American mind, ever since. To this day, in Massachusetts, for instance, we cannot get a constitutional amendment to have the legislature sit only once in two years, though it would probably be a very wise reform, on account of this old inherited feeling that there is something peculiarly free about an annual parliament, as indeed there is. The Anglo-Norman kings called parliaments once a year or oftener. Most of the States in this country now have their legislatures sit every two years. Alabama and some other States have recently changed, that they only sit once in four years. But the conservative old States, like Massachusetts and New Jersey, have still the rule that the legislature sits every year; and the prejudice in favor of the annual legislature goes back at least as far as this law of 1330, where the Commons succeeded in getting a law that Parliament should sit as often as once in a year, and is incorporated in England's and Massachusetts' Bill of Rights. And then we find the first statute restraining what we should now call chancery jurisdiction, complaining that the law of the land and common right was delayed by letters issued under the king's will, and ordaining that henceforth they shall not be disturbed by said letters and nothing done in any of the places of the court of the king or elsewhere by such letters against right or the law of the land shall avail. In 1313 the coming armed to Parliament is forbidden. These were troublous times and there was little legislation in consequence, and in 1322 Edward II secured the revocation of the New Ordinances themselves, but as in all such cases of royal grant and withdrawal the principles shown are even the more important historically. Of uncertain period is the Statute of Jewrie forbidding usury to the Jews, and Christians from living among them, but permitting them freedom of trade and exempting them from taxation except to the king; and a statute of the usages and customs of the men of Kent beginning with the statement that "all the Bodies of Kentishmen be free, as well as the other free Bodies of England," which dates at least as late as the early part of the fourteenth century, but still exemplifying the notion that a statute should only express law or custom previously existing. (1327) The Statute of Northampton, at the beginning of the reign of Edward III, confirms many of the earlier statutes, but abolishes all staples beyond the sea and on this side, on the ground that they tended to monopoly, and provided that all merchants, strangers, and citizens may go and come with their merchandises into England after the tenor of the great charter (cap. IX). In the next year is another provision for annual parliaments, and in 1335 the Statute of York again allows merchants to buy and sell freely except only enemies, and giving double damages for the disturbance by any one of such freedom of trade, and the Statute _de Moneta_, forbidding carrying money abroad; which is notable to the student of economics as showing how early what we now call the fallacy of the mercantile system appeared. Our ancestors thought that there was something peculiarly advantageous in a tariff or system of duties which put all the money into a country and allowed only goods to go out; and that opinion is perhaps not yet extinct. There always seems to have been a notion that there is something peculiarly sacred about wool. So we find that in 1337 they made it a felony to carry wool out of England, or to wear cloth made out of England; and no clothes made beyond the seas were to be brought into England. That notion that a man ought to dress on home products lies behind our present McKinley tariff. Then, in 1340, you will find another statute for the liberties of merchants, that they should be allowed the freedom of the kingdom; and a new duty is imposed on wool. Then we find the abolition of the laws of "the staple"; foreign staple towns had been abolished just before. The "staple" was the _town_ in which one commodity was mainly dealt in. Every commodity in England had some particular town, where the principal market was for it; just as, with us, the boot and shoe market of the United States is supposed to be in Boston, the money market in New York, beef and hogs in Chicago. In England, in the Middle Ages, they really provided that a certain trade should have its home in a certain town; not necessarily the only one, but very often in that one only. Thus there were certain towns for the carrying on of the wool industry; you could only trade in wool in those towns. The word "staple," from meaning the town or market, got applied by an easy process to the commodity dealt in; so that when we now say that the Vermont staple is hay, we mean that this is the main crop raised in Vermont. But the staple--like the modern stockyard or exchange--tended to monopoly and was abolished for this reason. In 1340 and 1344 we find two picturesque statutes showing how the English were getting jealous of the Norman kings: "The realm and people of England shall not be subject to the King or people of France"--that is, that the customs and law of France, although their kings were French, were not to be applied to England. Then in the royal edict that year when King Edward assumed the title, King of France, they caused him to put in a statement that no inference was to be drawn from his assuming the flower de luces in the first quarter of his arms. The present English coat of arms is modern; instead of having the Norman leopards in the upper right hand and lower left hand, they then had the blue field and the fleurs de lys of France in the upper, and the Norman leopards only in the lower corner; and this lasted until the time of Charles I. In that part of Normandy which now still remains to the English crown, that is, in Guernsey and Jersey, you find to-day that only the leopards, not the arms of Great Britain, are in use. But then again, in 1344, we have a statute (which, by the way, itself is written in French) complaining that the French king is trying to destroy the English language. They were getting very jealous of anything French; the Normans had already been absorbed; modern England was beginning to appear. (1344) And now comes a liberal statute, repealing those restrictions on wool, and allowing it to be exported; and another statute that "the Sea be open to all manner of merchants." Now this is the origin of the great English notion of freedom to trade with foreign parts; and was principally relied upon three centuries later in the great case of monopoly (7 State Trials) brought against the East India Company. And England has assumed dominion of the sea ever since; "the boundaries of Great Britain are the high-water mark upon every other country." (1348) This year was the plague of the Black Death, and the following year is the first Statute of Laborers discussed in an earlier chapter and elaborately amended in the following year. In 1350 also we find the Statute of Cloths, providing again for free trade in victuals, cloths, and any other manner of merchandise in all the towns and ports of England, and punishing forestalling of any merchandise with two years' imprisonment and forfeiture of the goods, one-half to go to the informer. Two years later the forestalling and engrossing of Gascony wines is forbidden and even the selling of them at an advanced price, and this offence is made capital!--and the next year we have the most elaborate of the Statutes of the Staple re-established. This ordinance (1353) provides for a staple of wools, leather, wool fells, and lead in various towns in England, Wales, and Ireland. The safety of merchant strangers is provided for, and it is again made a felony for the king's subjects to export wool; and more important still, all merchants coming to the staple and matters therein "shall be ruled by the Law-Merchant and not by the common Law of the Land nor by Usage of Cities, Boroughs or other Towns," and any plaintiff is given the option whether he will sue his action or quarrel before the justices of the staple by the law thereof, or in the common-law court. Merchandise may be sold in gross or by parcels, but may not be forestalled; and the goods of strangers suffering shipwreck shall be restored to their owners on payment of salvage. Houses in staple towns must be let at a reasonable rate, and conspiracies or combinations against the law of the staple made criminal. Again our ancestors showed themselves more civilized than we, this time in their Custom-house proceedings; for Article 26 of this statute provides that "whereas a Duty is payable of three pence in the pound by all merchant strangers coming into the kingdom, they may show their letters or invoices to prove the value of their goods, and if they have no letters, they shall be believed by their oath ... and now of late we understand by the Complaint of the said Merchants that although they have Letters or have made oath, nevertheless after the Oath made the bailiffs of the customs do unseal their Barrels, Fardels, and Bales for which they have taken their oath. We, not willing that Strangers that come into our Realm be in such Manner grieved, establish that when the Letters or the oath be taken their Goods shall be delivered to them without delay and the bailiffs meddle no more of the same Goods upon Pain of Imprisonment and pay the Party grieved quatreple Damages." As is well known, it is the United States custom to insist upon the oath of the importer, and notwithstanding that, rummage open his trunks. Or are we to infer that people were more truthful in those days? (1354) The export of iron is forbidden, and the justices given power to punish them that sell iron at too dear a price, but it does not appear how the prices are to be determined; and the Statute of the Staple is again re-enacted and the provision made that duty shall be paid only upon those goods which are actually sold in England and the merchant may re-export the balance--the first precedent of our laws of importing under bond. It is notable that this year the Statute of Laborers is extended to the city of London. (1357) The Ordinance of Herrings is a most interesting example of early intelligence in dealing with a modern abuse. It provides "that no herring shall be bought or sold in the Sea, till the Fishers be come into the Haven with their Herring, and that the Cable of the Ship be drawn to the Land." That thereupon they may sell freely, but only between sunrise and sunset. "The Hundred of Herring shall be ... six score, and the Last by ten Thousand and all Merchants must sell the Thousand of Herring after the Rate of the Price of the Last, and the people of Yarmouth shall sell the last [that is, the ten thousand red herring], bought for forty shillings for half a mark of gain and not above; and so the people of London for one mark of gain"; and the destruction of fish is prevented, but all caught must be sold. It is well known that the custom was to destroy all the fish brought into Billingsgate market above a certain quantity, which led Ruskin to cry out furiously that the real prices of the world were regulated by Rascals, while the fools are bleating their folly of Supply and Demand. One may guess to-day that most of the proceedings in the ports of Boston, New York, or Gloucester would be highly criminal under this ancient law. So, in the Statute of Dogger (this ancient word meaning the ships that carry fish for salting to Blakeney, Cromer, and other ports in the east of England), the price of dogger fish is settled at the beginning of the day and must be sold at such price "openly, and not by covin, or privily," nor can fish be bought for resale, but must be sold within the bounds of the market. To-day there is not a quart of milk that goes into Boston that is not forestalled, nor possibly a fish that is not sold at sea or even before its capture; and the number of middlemen is many--when, indeed, they all are not consolidated into a trust. The destruction, directly or by cold storage, of milk, fish, eggs, or other food in order solely to maintain the price should to-day be a misdemeanor; and these early doctrines of forestalling and restraining trade should be to-day more intelligently applied by our judges--or by the legislatures, if our lawyers have forgotten them--for they all are "highly criminal at the common law." In the reign of Edward III appears one of many cruel ordinances for Ireland. Although the Roman Church was then, of course, universal, the statute is addressed to "the Archbishops, Bishops, Abbots, Priors and our Officers both great and small of our land of Ireland," and recites that "through default of good government and the neglect and carelessness of the royal officers there [this is probably true enough] our land of Ireland and the Clergy and People thereof have been manifoldly disturbed and grieved; and the Marches of said Land situate near the Enemy, laid waste by Hostile Invasions, the Marches being slain and plundered and their Dwellings horribly burnt." The Marchers were, of course, mainly of English descent; and one notes that the Irish are frankly termed the Enemy. As a method of meeting this evil, the Saxon intelligence of the day could find no better remedy than to lay it to "marriages and divers other Ties and the nursing of Infant Children among the English and the Irish, and Forewarnings and Espyals made on both Sides by the Occasions aforesaid," and it therefore forbids such marriages to be contracted between English and Irish, "and other private Ties and nursing of Infant Children." The statute notes that these dissensions do not occur only between the English and those of Irish blood, but as well between the English of birth and the English of descent living in Ireland; a condition which has, indeed, continued till to-day, Parneil and a host of famous Irishmen being of pure English descent. In 1360 the exportation of corn is forbidden. We now, therefore, have that principle applied to wool, iron, and bread-stuffs--corn, of course, meaning all kinds of grain. There is another statute requiring Parliament to be held once a year; and, more interesting, that pleas should be made in the English language, for "the French tongue is much unknown in said Realm of England," but the judgments are to be enrolled in Latin. In 1363 another statute concerning diet and apparel fixes the price of poultry, a young capon three pence, an old one four pence, a hen two pence, and a pullet one penny "for the great Dearth that is in many Places." Department stores are anticipated by a clause complaining that the merchants called grocers do engross all manner of merchandise "by Covin and Ordinance made betwixt them, called the Fraternity and Gild of Merchants," and anticipates the prejudice against the modern department store by ordaining that merchants shall deal in only one sort of merchandise; and furthermore handicraftsmen are allowed to "use only one Mystery," that is, trade--which also anticipates a principle dear to modern trades-unions. The statute then regulates the diet and apparel of servants. They may eat once a day of flesh or fish, but the rest of their diet must be milk or vegetarian. Their clothing may not exceed two marks in value. People of handicraft and yeomen, however, are allowed to wear clothing worth forty shillings, but not silk, silver, nor precious stones. Squires and gentlemen of a landed estate less than one hundred pounds a year may wear clothing to the value of four marks and a half, but not gold nor silver, precious stones nor fur. Merchants having goods to the value of five hundred pounds may dress like esquires and gentlemen to a value of six marks. Clerks, that is to say, persons having degrees from colleges, may dress like knights of the same income and may wear fur in winter and lawn in summer, and clothiers make clothes accordingly and drapers and tailors charge proportionately. This most interesting effort to interfere with private life stops short of regulating the use of wine or beer; and tobacco had not yet been discovered. It is all the more interesting to note that it was found so intolerable that it was repealed the following year; and little effort since then has been made to regulate the diet or dress or expenditure of Englishmen; it was declared in memorable language that "which was ordained at the last Parliament, of Living and of Apparel, and that no English Merchant should use but one Merchandise" be repealed, and "It is ordained, That all People shall be as free as they were before the said Ordinance," and "all Merchants, as well Aliens as Denizens, may sell and buy all Manner of Merchandises, and freely carry them out of the Realm ... saving the Victuallers of Fish that fish for Herring and other Fish, and they that bring Fish within the Realm." Thus, after trying the opposite, we find triumphantly established in the middle of the fourteenth century the great English principle of freedom of life and trade. The legislation of this great reign ends with the prohibition of practising lawyers from sitting in Parliament and an ordinance that women might not practise law or "sue in court by way of Maintenance or Reward, especially Alice Perrens," Alice Perrers or Pierce having become unpopular as the mistress of the elderly king. Our courts have usually held that there is no common-law principle forbidding women to practise law, but from this ancient statute it would appear that such decisions are erroneous. (1381) In 5 Richard II is a law absolutely forbidding the sale of sweet wines at retail. This law, with the testimony of Shakespeare, goes to show that England liked their wines dry (sack), but the act is repealed the following year, only that sweet wines must be sold at the same price as the wines of the Rhine and Gascony; and in the same year, more intelligent than we, is a statute permitting merchants to ship goods in foreign ships when no English ships are to be had. In 1383, according to Spence, the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common-law tribunals. The rest of the statutes of Richard II are taken up with the important statutes concerning riots and forcible entries, and regulating labor, as set forth in the last chapter. The troublesome reign of Richard II closes with an interesting attempt to make its legislation permanent, as has sometimes been attempted in our State constitutions. The last section of the last law of King Richard declares "That the King by the Assent of the said Lords and Knights [note it does not say by consent of the Commons], so assigned by the said Authority of Parliament, will and hath ordained that ... to repeal or to attempt the repeal of any of the said Statutes is declared to be high treason," and the man so doing shall have execution as a traitor. Notwithstanding, in the following year the first act of Henry IV repeals the whole Parliament of the 21st of Richard II and all their statutes; that it be "wholly reversed, revoked, voided, undone, repealed, and adnulled for ever"--so we with the States in rebellion, and so Charles II with the acts of Cromwell. (1400) Under Henry IV is the first secular law against heresy, making it a capital offence. Upon conviction by the ordinary the heretic is to be delivered to the secular arm, _i.e._, burnt. Note that the trial, however, still remains with the ordinary, _i.e._, the clerical court. Under Henry IV also we find a statute banishing all Welshmen and forbidding them to buy land or become freemen in England; and under Henry VI the same law is applied to Irishmen, and in the next reign to Scotchmen as well. The Irishmen complained of, however, were only those attending the University of Oxford. In 1402 we find Parliament asserting its right to ratify treaties and to be consulted on wars; matters not without interest to President Roosevelt's Congress, and in 1407 we find definite recognition of the principle that money bills must originate in the lower house. For the purpose of his Chicago speech, it is a pity that Mr. Bryan's attention was never called to the Statute of the 8th of Henry VI, which forbids merchants from compelling payment in gold and from refusing silver, "which Gold they do carry out of the Realm into other strange Countries." An enlightened civic spirit is shown in the Statute of 1433, which prohibits any person dwelling at the Stews in Southwark from serving on juries in Surrey, whereby "many Murderers and notorious Thieves have been saved, great Murders and Robberies concealed and not punished." And the statute sweepingly declares everybody inhabiting that part of Southwark to be thieves, common women, and other misdoers. Fortunately, this was before the time that John Harvard took up his residence there. In 1430 was the first statute imposing a property qualification upon voters. In 1452 is a curious statute reciting that "Whereas in all Parts of this Realm divers People of great Power, moved with unsatiable Covetousness ... have sought and found new Inventions, and them continually do execute, to the Danger, Trouble and great abusing of all Ladies, Gentlewomen, and having any Substance ... perceiving their great Weakness and Simplicity, will take them by Force, or otherwise come to them seeming to be their great Friends ... and so by great Dissimulation ... get them into their Possession; also they will many Times compell them to be married by them, contrary to their own liking." A writ of chancery is given to persons so constrained of their liberty to summon the person complained of, and if he make default be outlawed--an early example of "government by injunction" applied to other than labor disputes! I know no example of an American statute to this effect; presumably our women are lacking in "weakness and simplicity." In 1463 is another curious sumptuary law prescribing with great care the apparel of knights, bachelors, gentlemen and their wives, making it criminal for tailors to make cloths not according to this fashion, and for shoemakers to make boots or shoes having pikes more than two inches long. No draper shall sell or women wear hose to the value of more than fourteen pence, nor kerchiefs worth more than ten shillings, but scholars of the universities "may wear such Array as they may," nor does the ordinance extend to judges or soldiers. The provision against long pikes to shoes appears to be considered of importance, for it was re-enacted in 1464. I have searched in vain for a statute relating to hatpins. Again in 1482 there is another long statute concerning apparel which seems to have been considered under the reign of Edward IV quite the most important thing in life. A more manly clause of the statute is concerned with the benefits of archery to England, reciting that "In the Time of the victorious Reign ... the King's Subjects have virtuously occupied and used shooting with their Bows, whereby and under the Protection of Almighty God, victorious acts have been done in Defence of this Realm," and the price of long bows of yew is limited to three and four pence. The statutes now begin to be in English. In 1488 the Isle of Wight is to be repeopled with English people for "defence of the King's auncien ennemyes of the realme of Fraunce." In 1491 all Scots are to depart the realm within forty days upon pain of forfeiture of all their goods; it is not recorded that any remained in England. In 1491 Henry VII levied an amazingly heavy tax upon personal property, that is to say, two fifteenths and tenths upon all "movable goodes cattales and othre thinges usuelly to suche xvmes and xmes contributory," with the exception of Cambridge and a few other favored towns. In 1495 the famous Oklahoma statute is anticipated by a law regulating abuses in the stuffing of feather beds. In 1503 a statute recites that the "Longe Bowes hathe ben moche used in this his Realme, wherby Honour & Victorie hathe ben goten ... and moche more drede amonge all Cristen Princes by reasone of the same, whiche shotyng is now greatly dekayed." So this mediaeval Kipling laments that they now delight in cross-bows to the great hurt and enfeebling of the Realm and to the comfort of outward enemies, wherefore cross-bows are forbidden except to the lords, on penalty of forfeiture of the bow. (1509) The reign of Henry VIII was one of personal government; and in those days personal government resulted in a small output of law-making by Parliament. Indeed, after 1523, under Cardinal Wolsey, Parliament was not summoned for seven years. In 1539 the attempt to do without popular legislation is shown in the act already referred to, giving royal proclamations of the king and council the force of law, a definite attempt at personal government which might have resulted in the establishment of an administrative law fashioned by the executive, had it not been for the sturdy opposition of the people under weaker reigns. But under the reign of Henry VIII also the great right of free speech in Parliament was established; and in 1514 the king manumitted two villeins with the significant words "Whereas God created all men free," vulgarly supposed to be original with our Declaration of Independence. The important principle of a limitation for prosecutions by the government for penal offences dates from the first year of Henry VIII, the period being put, as it still is, at three years; and it is expressed to be for better peace and justice and to avoid the taking up of old charges after the evidence has disappeared. In 1515 is another act of apparel providing, among other things, that the king only shall wear cloth-of-gold or purple color, or black fur, and that no man under the degree of a knight may wear "pinched Shirts." In this reign also comes the famous Statute of Wills, permitting the disposal of land by devise, the Statute of Uses and other matters primarily of interest to the lawyer; the first Bankruptcy Act and the first legislation recognizing the duty of the secular law to support the poor, perfected only under Queen Elizabeth; but in the latter part of his reign there is little law-making that need concern us. The Statutes of Apparel continue, and the statutes fixing the price of wine, which, indeed, seems to have been the last subject so regulated. There is the "Bloody Statute" against heresy, and the first act against witchcraft, Tindale's translation of the Bible is prohibited, and women and laborers forbidden to read the New Testament. There is the first act for the preservation of the river Thames, and also for the cleaning of the river at Canterbury; and the first game law protecting wild-fowl, and a law "for the breeding of horses" to be over fifteen hands. The king is allowed to make bishops and dissolve monasteries; physicians are required to be licensed. The regrating of wools and fish is again forbidden, and finally there is an act for the true making of Pynnes; that is to say, they are to be double headed and the heads "soudered fast to the Shanke." We are now approaching the end of our task, for the legislation after James I, with the exception of a few great acts, such as the Statute of Frauds and the Habeas Corpus Act, hardly concerns us as not being part of our inherited common law. The reigns of Elizabeth and James are to us principally notable for the increase of the feeling against monopolies, ending in the great Statute of James I. While we still find restrictions upon trade in market towns or in the city of London, they always appear as local restrictions and are usually soon repealed. The prejudice against regrating, that is to say, middlemen, continues, as is shown in a Statute of Edward VI, providing that no one shall buy butter or cheese unless to sell the same only by retail in open shop. That is to say, there must be no middleman between the producer and the retailer, and a definition of the word "retail" is given. In 1552, the 7th of Edward VI is a celebrated statute called the Assize of Fuel, applied to the city of London, notable because it forbids middlemen and provides that no one shall buy wood or coal except such as will burn or consume the same, "Forasmuche as by the gredye appetite and coveteousnes of divers persons, Fuell Coles and Woodd runethe many times throughe foure or fyve severall handes or moe before it comethe to thandes of them that for their necessite doo burne ... the same"--under penalty of treble value. In 1551 is the last elaborate act against regrators, forestallers, and engrossers, made perpetual by 13 Elizabeth, and only repealed in 1772. It recognizes all previous laws against them, but recites that they have not had good effect, and therefore in the first section gives a precise definition. _Forestalling_--the buying of victuals or other merchandise on their way to a market or port, or contracting to buy the same before they arrive at such market or city, or making any motion for the enhancing of the price thereof, or to prevent the supply, that is, to induce any person coming to the market, etc., to stay away. _Regrating_ is narrowed to victuals, alive or dead, and to the reselling them at the fair or market where they were bought or within four miles thereof; and _engrossing_ is given a definition very similar to our "buying of futures." That is to say, it is the buying or contracting to buy any corn growing in the fields or any other victuals within the Realm of England with intent to sell the same again. The penalty for all such offences is two months' imprisonment and forfeiture of the value of the goods, but for a third offence the person suffers forfeiture and may be imprisoned. There is an important recognition of modern political economy made in the proviso that persons may engross corn, etc., when it sells at or below a certain price, not, however, forestalling it. In 1554 is a statute for the relief of weavers, prohibiting "the engrossing of looms," thus anticipating one of the principal doctrines of Lassalle. In the same year, 1st of Philip and Mary, is a statute prohibiting countrymen from retailing goods in cities, boroughs, or market towns, but selling by wholesale is allowed, and they may sell if free of a corporation; and so cloth may be retailed by the maker, and the statute only applies to cloth and grocery wares, not apparently to food. (1562) From the reign of Elizabeth dates the great Poor Law, enacted and re-enacted in 1562, 1572, and finally in 1601, recognizing fully the duty of the parishes to support their poor, but providing a system of organized charity and even licensing beggars in towns too poor to support all their paupers. Side by side with this, however, went the severe statutes against idlers and vagabonds recited in the last chapter. The first game laws date from about this period, prohibiting the snaring of birds and establishing close seasons, and also in 1584 we find the first forestry law for the preservation of timber in the southern counties. There is no provision for seeding, but the use in the iron works of wood for fuel is carefully regulated, and in order to preserve the forests in Sussex, Surrey, and Kent, it is provided that no new iron mills, furnaces, etc., shall be erected in those counties, showing the relative value that our forefathers placed upon these matters. The first incorporation of a trading company seems also to date from the time of Elizabeth. That is to say, the Muscovy Company was chartered in 1564, and the Merchant Adventurers for the discovery of new trades in 1566. In this same year is the celebrated act of Speaker Onslow, in telling Elizabeth that she is subject to the common law; from henceforward we are in modern times. In 1534 Henry VIII declared himself supreme head of the Church of England; five years later with the dissolution of monasteries came the "Bloody Statute," whereby he attempted to vindicate his orthodoxy. The act was entitled "An Act abolishing diversity of opinion on certain articles concerning the Christian Religion," and insisted upon the sacraments, celibacy, masses, and confessions, but in 1548 the marriage of priests was made lawful, and in 1566 the pope forbade attendance at the English Church. Thus, Roman law was expelled in the first two or three centuries after the Conquest, the Roman Church in the sixteenth century, and it remained for the seventeenth to struggle with the last serious attempt at the Roman or Continental theory of personal government. (1602) King James at his accession asserted the divine right, and his legislation, other than special bills for the restoration of attainted persons, or the confirmation of titles, is scanty, his reign being principally occupied with the conflict with Parliament, which he forbade from meddling with affairs of state. In the first year of his reign, the Statute of Laborers of Elizabeth was confirmed, as well as that against rogues and vagabonds; the ninth act of his first Parliament was "To restraine the inordinate hauntinge and tiplinge in Innes and Alehouses," and, indeed, much of his legislation is aimed at what should properly be called "sins" rather than "crimes"; the next act after this was one to restrain "all persons from Marriage until their former Wyves and former Husbandes be deade." And next came a statute against witchcraft. In 1603 is an act to prohibit people from eating anything but fish in Lent, entitled "An Acte to encourage the Seamen of England to take Fishe, wherebie they may encrease to furnishe the Navie of England." There was an act for the relief of skinners, and a charter given by Queen Elizabeth in the twenty-first year of her reign to the Eastland merchants for a monopoly of trade in those countries; it would be interesting could these early corporation charters and monopoly grants be printed, for they are not usually found in the statutes of the realm. In 1605 stage players are forbidden from swearing on the stage. In 1606 is an elaborate act for the regulation of the spinning, weaving, dyeing, and width of woollen cloth, and the same year is an act for "repressinge the odious and loathsome synne of Drunckennes," imposing a penalty or fine and the stocks. In 1609 an act of Edward IV is revived, forbidding the sale of English horns unwrought, that people of strange lands do come in and carry the same over the sea and there work them, one of the latest statutes against the export of raw material. In the last year of his reign comes the great Statute of Monopolies noted in the last chapter, and an act extending the benefit of clergy to women convicted of small felonies, for which they had previously suffered death, and another act for the repression of drunkenness. And the last statute we shall note, like the first, is concerned with regrating and engrossing; that is to say, it re-enacts the Statute of Edward VI prohibiting the engrossing of butter and cheese, and prohibiting middlemen. Thus restraint of trade and freedom of labor begin and end as the most usual subjects of English popular law-making. * * * * * A few words upon Cromwell's legislation may be of interest; for though it was all repealed and left no vestige in the laws of England, it had some effect upon the legislation of Massachusetts, Rhode Island, and Connecticut. Under the Commonwealth there was but one legislative chamber, and over that the protector exercised far more control than had been ventured by the maddest Stuart or Tudor. One would suppose that a period which represented the supremacy of the common people would be marked by a mass of popular legislation. Quite the contrary is the fact. In the first place, the Instrument of Government, prepared by the so-called Barebones Parliament, was supposed to be a sort of constitution; as a symbol of the change from absolute personal government to constitutional government under this Instrument, Cromwell exchanged his military sword for the civil common sword carried by General Lambert, who was at the head of the deputation praying the Lord General to accept the office of protector. It vested the supreme power in him, acting with the advice of the Council, with whose consent alone he could make war, and that Council was to choose future protectors. The legislative power resided in a single chamber, upon which he had a veto. There was an ordinary property qualification for voting, and religious liberty was guaranteed, except as to the papists. Only one Parliament, as a matter of fact, assembled under this Instrument of Government, and the very first legislative function it endeavored to exercise seemed to offend Cromwell, who promptly dissolved it with a file of soldiers. That was the end of constitutional government under the protector. The laws of the Rump Parliament, and the Barebones Parliament, are entirely omitted from the official Statutes of England, and only to be found in a rather rare volume. They mostly concern military affairs. The real reforms of government, like the abolition of the Star Chamber and feudal tenures, had in fact been carried out under Charles I. A further word should be given to the origin of the business corporation, an almost accidental event, which has affected the world of trade and affairs more than the invention of printing, of the bill of exchange, and the Law Merchant combined. It would have been perfectly possible for the world to get on and do business without the modern corporation--without the invention of a fictitious person clothed with the enormously powerful attributes of immortality and irresponsibility. That is to say, men can act together or in partnership, but they are mortal, and at their death their personal powers end. The corporation may be immortal, and its powers, as well as its acquisitions, increase forever. Men are liable with all their estates for their contracts and obligations. Men in corporations are only liable to the amount of their aliquot share of stock, or often not at all. Corporations may dissolve, and be reborn, divide, and reunite, swallow up other corporations or often other persons. Individuals cannot do so except by the easily broken bond of co-partnership. Trading corporations for profit were _practically_ unknown to the Romans, or even to Continental countries--scholastic precedents and the Venetian _commendam_ to the contrary notwithstanding. They developed in England first out of the guild or out of the monastery; but the religious corporation, although regarded with great jealousy in the Statutes against Mortmain, which show that from the earliest times our ancestors feared the attribute of immortality that characterizes the corporation, have never had the principle of limited, or no, personal liability. That, indeed, is said to have been invented by the State of Connecticut (see below, chapter 10). They were, however, often clothed with monopoly. In 1643 we find the Fellowship of Merchant Adventurers of England, a business corporation, with power to levy money on the members, and exclusive powers to trade in its own products, which seem to have been clothing and woollen manufactures. We have already mentioned the earlier charter to the Eastland merchants. Mr. James Bryce has pointed out to me that the objection of monopoly would not have been felt so much to apply to a corporation chartered only for purposes of trade out of England. It would seem, therefore, that the invention and growth of the secular corporation was an accident of the legislation of Queen Elizabeth's time; and arose rather from this desire to get a monopoly, than from any conscious copying of the trade guilds, still less the religious corporations of earlier dates; for the trade guilds were nothing but a more or less voluntary association of men bound together in a very indefinite bond, hardly more of a permanent effective body than any changing group of men, such as a political party is, from year to year; the only bond between them being that they happen at some particular time to exercise a certain claim at a certain place; and even the trade guilds, as we know, had somewhat the course of a modern corporation. They became overgrown, aristocratic, swollen in fortune, and monopolistic in tendency. To some extent in the English cities and towns, and still more in France, they became tyrannous. And in the previous reign of Henry VIII all religious corporations had been dissolved. Not much, perhaps, remained for Cromwell's Parliament to do. The abuses of law-making, of the Star Chamber, and other non-common-law courts, of personal government, had been swept away under Charles I. In 1644 the Book of Common Prayer was abolished. In 1646 the bishops were abolished, in 1648 the king and the House of Peers, and in 1649 the king was beheaded. Cromwell's Parliament was more interested in the raising of money and the dividing up royal lands than in constructive legislation. They did find time to forbid the planting of tobacco in England, and to pass an act furthering the religion of Jesus Christ in New England; also a society for the foundation of the gospel in New England, with power to raise money or make collections for that purpose, provided always, they did not carry any gold, silver, plate, or money outside of England. An act claiming that "the Indians are renouncing their heathen sorceries and betaking themselves to English schools and universities," possibly refers to one Indian graduate of Harvard, Caleb Cheeshahteaumuck, of the class of 1665. There are statutes concerning the impressing of seamen; a bankruptcy act, a statute authorizing secular marriage without a priest or church ceremony, and the act for preferring veterans in the Spanish War in civil service, a statute which gives a respectable antiquity to our laws making a privileged class of veterans or the descendants of veterans of the Civil and Spanish Wars. Under Cromwell they could exercise any trade without apprenticeship; a recent South Carolinian statute providing that Confederate veterans could exercise any trade without paying the usual license tax was held unconstitutional by the Supreme Court of South Carolina itself. VI AMERICAN LEGISLATION IN GENERAL Before approaching the actual field of American legislation, it may be wise to make a few general statements concerning it. It was some fifty years after the adoption of the Federal Constitution before it began in great bulk, but to-day we find in the States alone forty-six legislative bodies, and two of Territories, besides the Federal Congress and the limited legislatures of our insular possessions. Nearly all of these turn out laws every year; even when the legislatures meet biennially, they frequently have an annual session. Only in one or two Southern States have recent constitutions restricted them to once in four years. It would be a fair estimate that they average five hundred statutes a year, which would make, roughly speaking, twenty-five thousand annual laws. It has been well doubted by students of modern democracy, by Lecky and Carlyle, if this immense mass of legislation is a benefit at all. Carlyle, indeed, is recorded to have taken Emerson down to the House of Commons and showed him that legislative body in full function, only taking him away when he was sufficiently exhausted, with the query whether Emerson, though a Unitarian, did not now believe in a personal devil. Administrative law-making for the machinery of government there must always be, but for the rest, if we rely on the common law and its natural development alone, our condition will be far less hopeless than most of us might imagine. Indeed, as we shall so often find, it is the very ease and frequency of legislation that has caused our courts and law-makers to forego the well-tried doctrines of the common law. Many of our statutes but re-enact it; when they go beyond it, it is frequently to blunder. Moreover, it is a commonplace that no law is successful that does not fairly express the thought and customs, the conditions, of the mass of the people. Professor Jenks of Oxford applies to all other legislation the term "fancy legislation," or, as we might say, freak legislation--the caprices and desires of the present legislature or their constituents, carried immediately into law; and we may say at the outset that such legislation has rarely proved wise, and hardly ever effective. It is needless to state that many modern statutes--like prohibition laws, for instance--are passed for that very reason. Yet whatever the fact may have been in the past, there is no doubt that for the future, legislation by the people, constructive law-making at the popular behest, is the great new fact of Anglo-American civilization. There has just been brought out an immense index, under the auspices of the British Government, called "The Legislation of the Empire, being a Survey of the Legislative Enactments of the British Dominions, from 1897 to 1907." This work fills four huge volumes, and gives but the briefest possible index-headings of the statutes of the British Empire for that period. Our excellent "Index of Legislation," published by the New York State Library, contains about six hundred pages, and even this is hardly more than an index, as the title suggests. Now, this tremendous increase in legislative output, most notable in the States of the United States, did not begin with us at once. For some forty or fifty years after the Revolution our State legislatures made as little constructive legislation as did the Parliament of George III. It was with the end of the first quarter of the nineteenth century that the great increase began. It seems to have taken democratic legislatures some fifty years to become conscious that they had this new unlimited power, and not only that they possessed it but were expected to exercise it; the power of making absolutely new laws, statutes which did not exist before as law, either by the common law or by the custom of the people. It is true, our ancestors had some taste of radical legislation during the Revolution, and the checks of the State constitutions were adopted for that reason; but subject only to this limitation, it was the first modern experiment in popular legislation. The great wave of radical law-making that began with the moral movements--the prohibition movement, the anti-slavery movement, and the women's rights movement--of the second quarter of the nineteenth century, lasted down until the Civil War. After that there was a conservative reaction, followed by a new radical wave in reconstruction times, which ended with another conservative reaction at the time of the first election of President Cleveland. Since then, new moral or social movements, mainly those concerned with the desire to benefit labor and repress the trusts, with the desire to protect women and children, seem to have brought up a new radical wave, the progress of which has hardly ended yet. Before the Civil War, the women's rights movement and the anti-slavery movement always worked together. They were in great part composed of the same persons. In fact, the historical origin of the women's suffrage movement was a large abolition meeting held in England, but attended by many women delegates from America, where they excluded a leading American woman abolitionist and would only allow her husband to take her seat in her place. We shall, of course, consider this precise question later, and pause now merely to note the fact that with the anti-slavery movement, ending with the adoption of the war amendments and the women's suffrage movement, ceasing to progress soon after, there came the period of conservative reaction, or, at least, of quiescence, which lasted down to the recent labor and social movements that have caused our increasing mass of constructive legislation in the last few years. It is true that some of the far Western Territories adopted women's suffrage soon after being made States, or at the time they were admitted; but no other State, even of those surrounding them, has followed their example, though the people have repeatedly voted on the point. Whatever progress the cause may have made in England, or in the larger cities of the East, I think that no unprejudiced observer would say that it looks so near to accomplishment as it did in the twenty years preceding the Civil War. Then, also, there was during the same decades a great increase in personal property; that is to say, in corporate stocks and bonds, the kind of property most easily attacked by legislation; but the very possession of such securities by large numbers of the people tended to make them more conservative in ordinary property matters. It is in the times when you have but farmers on the one side, as in the Shay Rebellion in Massachusetts after the Revolution, or when the proletariat on the one side is opposed to the bourgeoisie on the other, as in certain Continental countries, that you find radical legislation. We were fortunate in that a large number of our citizens were thus arrayed on both sides of the question. Property rights, of course, have been granted to women most completely throughout the Union, but in twenty years they have made little progress toward the vote. Blackstone says that democracy is peculiarly fitted to the making of laws, and calls attention to the importance of legislation, with the regret that there should be no other state of life, arts, or science, in which no preliminary instruction is looked upon as requisite; but by "democracy" Blackstone really meant representative government, which still acts quite differently from the referendum and the initiative. Democracies, he says, are usually the best calculated to direct the end of a law. But in no sense, says Professor Jenks, was the British Parliament the result of a democracy; while our State legislatures during the Revolution were, indeed, democratic, and practically omnipotent, and for that very reason were promptly curbed by the State constitutions, which were adopted even before the Federal. And of late the distrust of our legislatures is shown by the most exaggerated list of restrictions we find placed upon them in the newer constitutions of the Southern and Western States. Another thing Blackstone oddly says, is that in legislation by the people they will show great caution in making new laws that may interfere with their rights and liberties. Precisely the contrary is experienced. Nobody is so willing to interfere with the rights or liberties of the people as the people themselves, or their supposed representatives in the legislature; and a body or faction of the people is far more ready and reckless to impose its will upon the others than have been the most masterful English monarchs. The recklessness of legislatures has two or three most evil consequences. They pass foolish or unconstitutional laws, relying on the governor to veto them, or the courts to declare them void--which has the effect of shirking their responsibility and imposing unjust and obnoxious duties on the other branches of government, to which they do not fairly belong; increases the growing disrespect for all law, and deteriorates the moral and intellectual fibre of the legislature itself. Finally, also, it provokes that hypertrophic modern State constitution of the South and West, which tries to bind down future legislatures in infinite particulars, thereby again diminishing their importance and responsibility, making it more difficult to get able men to serve in them, and, by the frequent necessary amendment of State constitutions, resulting in a continual referendum, which nearly does away with representative government itself. Moreover, when a law is unconstitutional it should ever be only because it violates some great natural right of humanity, personal liberty, property, or the right to common law. When constitutions go into details which are not substantially connected with these cardinal rights, they bring themselves into contempt, and justify the growing prejudice of our labor leaders against them. The people should believe, as I think they do believe under the Federal Constitution and under the older ones of the States, that when a law is declared _no_ law by a high court for being counter to the higher will of the people as expressed in their permanent constitution, it is not on a technicality, but because some great liberty right is infringed by it. Yet it is a curious thing that whereas our people only got the power to legislate by democratic assemblies freely and completely from the year 1776, in hardly more than a hundred years after their conscious possession of that power we find a respectably strong popular movement attempting to reverse it, or, at least, to limit its field. Most of our advocates of direct legislation by the people assume that a great mass of law-making would result in practice; probably the contrary is true; the referendum would destroy more than the initiative would create. They would go back to a condition of things which, in theory at least, existed in the England of the early Saxon times; although, of course, in those days only the freemen, and no women, had the law-making vote. Anyhow, it is curious that that representative government upon which we have been priding ourselves as the one great Anglo-Saxon political invention should be precisely the thing that we are now urged to give up. In the _Federalist_ there is much discussion as to whether it is possible to have so big a democracy as the United States, and the answer made by Hamilton was; "Yes, because we shall have representative government." But detailed discussion of the initiative we must leave for a later chapter. Perhaps we begin to detect the prejudice in the general mind, which is notable in the works of a few earlier theorists, to prefer statute law to what is known as judge-made law, on that ground alone. The writer is not of the school that admits there is such a thing as judge-made law, but believes the phrase to be a misnomer, at least in ninety-nine cases out of a hundred. The whole theory of the English law is that it exists in and by the people and is known of them before it is announced by a judge, and although the extreme of this theory be somewhat metaphysical, it is certainly true that a judge is a very bad judge who does not decide a point of law apparently new or doubtful according to the entire body of English-American precedent, experience, rather than by his own way of looking at things. If judges really made new law, particularly if they made it consciously, it would be more than "aristocratic"--it would be simply tyrannical, and, of course, be unconstitutional as well as being an interference with the legislative branch of government. But it is doubtless this theory, that it is the statute law that is the democratic kind, which has given form and body to the vast mass of statutes we are here to consider. Certain of our legislators seem to be horrified when a court applies a precedent a hundred years old, still more when it is a thousand years old, although to the jurist, in most cases at least, if never since questioned and never grown obsolete, it is entitled to all the more respect for that reason. Both the labor interests and the "special interests" resent excessively the recent tendency of intelligent judges to look at precedent and history. Mr. Debs will tell you that such matters are aristocratic and reactionary; Mr. Rockefeller, or his lawyer, that they are both visionary and obsolete. Yet a statute may only represent the sudden will of a small body of mediocre intelligence on a new subject (or an old one) which they have never studied. It is true that if they make a mistake they can amend it to-morrow; but so, also, may be amended the decisions of the court. VII AMERICAN LEGISLATION ON PROPERTY RIGHTS When we come to the vast field of legislation in the United States, comprising the law-making of forty-six States, two Territories, the National Congress, and the Federal District, it is difficult to decide how to divide the subject so as to make it manageable. The division made by State codes and revisions, and the United States Revised Statutes, hardly suits our purpose, for it is made rather for lawyers than sociologists or students in comparative legislation. The division made by the valuable "Year Book of Legislation," published by the New York State Library, comprises some twenty subjects: Constitutional Law; Organic Law; Citizenship and Civil Rights; Elections; Criminal Law; Civil Law; Property and Contracts; Torts; Family; Corporations; Combinations and Monopolies; Procedure; Finance; Public Order; Health and Safety; Land and Waters; Transportation; Commerce and Industry; Banking; Insurance; Navigation and Waterways; Agriculture; Game and Fish; Mines and Mining; Labor; Charities; Education; Military Matters; and Local Government. This division, however convenient in practice, crosscuts the various fields of legislation as divided in any logical manner. The same criticism may be applied to a somewhat simpler division I have used in tabulating State legislation for the last twenty years into thirteen columns, the titles of these being, roughly speaking, Property and Taxation; Regulation of Trades and Commercial Law; Personal Liberty and Civil Rights; Labor; Criminal Law, Health and Morality; Government; Elections and Voting; Courts and Procedure; Militia and Military Law; Women, Children, Marriage and Divorce; Charities, Education, Religion and Jails; Agriculture, Mining and Forestry; Corporations, Trusts and Interstate Commerce. Is it not possible to begin with a broader and more simple division? Now, all statutes are limitations on a state of pure individualism, defining this latter word to mean a state of society recognizing personal liberty and private property, and allowing all possible freedom of action and contract relating thereto; with a court administration for the purpose of protecting such liberty and enforcing such contracts in the courts. The usual rough division of our constitutional rights, following the phraseology of the Fourteenth Amendment, is that of life, liberty, and property; but the rights to life and liberty obviously belong to the same broad field. Our first division, therefore, may well be that which divides life and liberty rights from property rights; although in some cases, notably in the earnings of labor, they would be found to run together. Liberty rights are multifarious and indefinite; we may, therefore, first take the field of property as presenting, after all, a more simple subject. Considering all possible organizations of human society from this point of view, we shall find that all may be expressed, all at least that have hitherto been conceived, under the systems of anarchism, individualism, and socialism, these words expressing all possible states of human society when expressed in terms of individual liberty, that is to say, the free exercise of the individual will. Either one of these may exist either with or without the notion of private property; though, of course, one's action as to property would be controlled under a system of socialism, and property itself would have no legal protection under a system of anarchism. Nevertheless, the notion of property might still exist and be recognized by the custom of mankind without any sanction or enforcement from the entire community, _i.e._, what people call the state. When we are speaking in terms of property, we use the word _communism_--meaning that state of society where the conception of property exists, but the law or custom will not recognize individualism. Communism, therefore, usually implies ownership by the entire community, while in anarchism there is no property at all. There has been much confusion in the use of these terms in the popular mind, and even in ordinary writing. Many people have confounded, for instance, socialism with anarchism or nihilism, when the two things are whole poles apart. In the same manner, communism has been confounded with socialism, although the term should be used in entirely different connections--communism when we are speaking in terms of property, socialism when we are speaking in terms of individual liberty. The word _individualism_ was used by the present writer in a series of articles entitled "The Ethics of Democracy," beginning in 1887, as the most convenient term for describing that state of society where the greatest possible individual liberty is conjoined with a strong recognition of the right of private property, substantially the _laissez faire_ school as it existed in England in the first half of the last century; "the distinction between communistic and socialistic laws being, that the former are concerned solely with the taking or redistribution of money or property; the latter regulate or prohibit men's mode of life, acts, or contracts, either among themselves or as concerning the state." [1] [Footnote 1: _Scribner's Magazine_, vol. XV, p. 653.] Now, property is but the creature of law; and that is to say, in those of our States which have no common law, of statute. Jurists and communists are alike agreed on this. "Property is robbery," said Proudhon; property is but the creature of law, all English jurists admit. It is, of course, possible to conceive of a social system which recognizes no right of property, or one which makes all property belong to the community, or a middle ground which admits the institution, but holds that every individual holds property subject to the state's, that is, the organized community's, regulation and control. A convenient term for this state of affairs to which, perhaps, in our statutes, we are approaching, is "allowable _socialism_"; private property is recognized, but its use is regulated. In England they call it "gas-and-water socialism"; but this term, though picturesque, is not sufficiently comprehensive, relating, as it does, only to municipal activities. There is a third variety, the latest and perhaps the most intelligent of all, that believed in by leading modern German and American socialists, which we will call nationalism--the nationalization or municipalization of productive industry--the science of this doctrine being that private property may exist in all personal belongings, articles of pleasure, or domestic necessity, but not in lands, mines, works, or other instrumentalities used for the further production of wealth. Whatever the future may bring, we must start with the institution of private property recognized to its fullest extent. It is expressly guaranteed in our Federal Constitution, as for the matter of that it was also in Magna Charta, as clearly as the right to liberty, and usually in the very same clause. Not only that, but when we adopted our first State constitutions, from 1776 to 1788, and the Federal Constitution in 1789, every one of them made express guarantee of this right. One or two, following the lead of Massachusetts and Virginia, recognized equality also, or, at least, equality by birth and before the law; but without exception property was expressly recognized as one of two leading constitutional rights, and even in some States, like Virginia, it was termed a natural right. The same thing is true of the Massachusetts Bill of Rights and in the Federal Fifth Amendment, though it is significant that the Declaration of Independence omits the word _property_, and only mentions among unalienable rights, life, liberty, and the pursuit of happiness--which some courts have held to include private property.[1] Nevertheless, under our constitutions to-day, the right is not only doubly, but even triply, guaranteed; that is to say, by all State constitutions against State action; by the Federal Constitution against national action; and finally, by the Federal government in the Fourteenth Amendment as against State action also. This is the reason why, in any case affecting a cardinal liberty or property right, a litigant may carry his case not only through the State courts, which have sole jurisdiction of ordinary business and domestic matters, but to the courts of the United States as well. [Footnote 1: Justice Brewer, in the _Yale Law Review_, for June, 1891. He holds that under "the pursuit of happiness" comes the acquisition, possession, and enjoyment of property, and that they are matters which even government cannot forbid nor destroy. That, except in punishment for crime, no man's property can be taken without just compensation, and he closes: "Instead of saying that all private property is held at the mercy of the public, it is a higher truth that all rights of the state in the property of the individual are at the expense of the people."] When we come to legislation on the subject, or to modern State constitutions, there is hardly a change in this particular. Naturally, we find no new legislation confirming the right of property abstractly, or restating that that institution is part of our civilization. There is but one significant exception to this statement. While most of the States in their constitutions declare that men have a natural right to acquire, possess, and protect property, and Kentucky and Arkansas go to the length of saying that the right of property is "before and higher than any constitutional sanction"--which latter statement is a legal hyperbole--Oklahoma in its recent constitution, North Carolina, and Missouri state only that men have a natural right to the enjoyment of the fruits of their own labor; on the other hand there are recent intimations coming from Federal sources that individualism or private property rights, at least, and not anarchism or socialism, are part of our constitutional system. Before 1907 a Texas district judge refused to naturalize an immigrant on the ground that he was a socialist and that socialism was inconsistent with the Federal Constitution; and in that year Congress passed an act to regulate all immigration of aliens, which excludes, among other classes, persons who believe in or advocate the overthrow by force or violence of the government of the United States or of all government, or of all forms of law--a definition which would exclude anarchists, but not socialists; and in the case of South Carolina _v_. United States (199 U.S. 437), the Supreme Court of the United States gave serious consideration to the question whether State socialism was compatible with a republican form of government. This is all, so far as I am aware, that a century and a half of legislation has given us affirming the abstract right of property, though there are several constructive statutes and constitutional provisions applied to the general right to trade or labor, which we shall consider when we come to that subject. When a right is expressly guaranteed by the Constitution, we need ordinarily have no affirmative legislation about it. Liberty and property being always guaranteed by the State constitutions, it has not been necessary for the States to legislate to protect them. Our study of this subject, therefore, will be confined to the restrictive or limiting legislation affecting private property or property rights, and of this we shall find plenty. Now there are four, and only four, methods by which the state, that is to say, American society as organized into governments, interferes with the right to property or the enjoyment and use thereof; that is to say, taxation, which is, of course, general; eminent domain, a peculiarly American doctrine; the police power; and the regulation of rates and charges. Some authorities place the last under the police power; but It does not seem to me that it historically, if logically, belongs there. Starting with the simplest first--eminent domain, an American doctrine which, in its simplest form, subjects the land of any one to the need of the state or, in cases authorized by the Federal Constitution, of the nation. It is questionable whether it applies to personal property. It is an American doctrine, for in England where the king remained in theory the feudal over-lord, it was not necessary for him or the sovereign Parliament, wishing to take or control land, and having no constitution protecting property rights against such action, to invent any new doctrine; but with us all land is allodial. The old charters of the original States creating tenures in free and common socage are, of course, obsolete. Everybody is a freeholder, and the States are not, still less the Federal government, a feudal over-lord. Nevertheless, the property of every one must be subject to the supreme common necessity; and the right is absolute in the States, although limited in the national government by the Federal Constitution. It is an American constitutional principle; and this principle also provides, as does Magna Charta and the early charters of England as to _personal_ property seized by royal purveyors, that full damages must be paid; and to this general principle our constitutions have added that the damages must be paid at the time of the taking and the amount be determined by due process of law; that is to say, in most cases by a jury. Blackstone says: "So great is the regard of the law for private property that it will not authorize the least violation of it; no, not even for the general good of the whole community";[1] a new road, for instance, cannot be made without consent of the owner of the land, and the words "eminent domain" do not appear in the text of his book. But though we hold the contrary doctrine, the rights of the property owner are sufficiently protected when the taking is directed by the State, or even by a city or town. The menace to property here, with the increasing bulk of legislation, comes in the number of _new_ uses, not only directly for the State or for cities and towns, but for public-service corporations, or often other private corporations, and associations of persons, who are permitted by legislation to take land under eminent domain, or, what is often worse, to acquire easements over it. Most of the States give damages for land not actually taken, but damaged, though our Federal courts have not held this to be necessary under the Fourteenth Amendment; but although land can still, in theory, only be taken for a public use, the number of uses which our legislation makes public Is being enormously increased. The usual national purposes are forts, magazines, arsenals, dockyards, and other needful buildings. Independent of some express permission in the Constitution, the Federal government has no power to take, or even to own, land at all within the State limits. Therefore, it is questioned whether land may be taken for national parks or forest reservations except in the Territories, where title still remains with the Federal government. But the State's power of eminent domain is unlimited, although it began only with the towns or counties taking roads for highways, and cities and towns appropriating lands for schools and other public buildings. Probably the only serious addition of a wholly public use is covered by the general expression, parks and playgrounds; but the analogy of the highway led to the taking of land under eminent domain for railroads, when they were first invented, then for street railways, then for telegraph, telephone, and electric-light lines, underground pipe-lines or conduits of all sorts, and finally, for drains, sewerage districts, public, and often private irrigation purposes. Most of the more complex State constitutions define at great length to the extent of some twenty or thirty paragraphs just what purposes shall be considered a public use under eminent domain. In the absence of such definition, or without such definition, the number of such uses is being enormously increased by statute. Thus, reservoirs, storage basins, irrigation canals, ditches, flumes, and pipes for water drainage, or mining purposes, working mines, as dumps, hoists, shafts, tunnels, are made a public use by the constitutions of the arid States, Idaho and Wyoming. So as to water only in Montana, but in Idaho also to any other use "necessary for the complete development of the material resources of the State or the preservation of the health of its inhabitants."[2] And even by private parties, land may be taken for ways of necessity in many States, and for drains, flumes, and aqueducts by the constitutions of the arid States. [Footnote 1: Book I, p. 139.] [Footnote 2: These provisions are collated in "Federal and State Constitutions," p. 159.] At common law, of course, a man or a set of men, who happen to be neighbors, would have had no right to take my land for a private way, or for drainage or irrigation purposes, however beneficial to their land; still less to take water from my stream across my land to their fields. But this precise thing can be done in an increasing number of States, although it has been held unconstitutional in the courts of one or two of the far Western States, and has even yet not been decided by the Supreme Court of the United States as to the powers of the Federal government. Under the broad definition given in Idaho and Wyoming, you can probably take land to establish a municipal coal-yard, or dispensary, or anything else that the legislature might suppose to be for the general health or benefit of the people. Yet a hotel company would not, as yet, be considered a public use, nor, probably, a private recreation park. And land taken for one use may be subjected to other and totally distinct uses without giving any new right of damages, as was decided in Massachusetts, at least, when land given or taken for an ordinary city street was afterward occupied by a steam railroad. A notable limitation on the use of streets, however, we find imposed by the statutes of New York and many other States, which provide that no railway shall be placed therein without the consent of a majority of the property owners or abutters. There is frequent legislation providing that the betterment taxes collected in case of public improvement shall not exceed the damages given for the property actually taken. In the last two or three years there has been an extension of the doctrine, authorizing cities and towns to take more land than is actually needed, for the purpose of convenience, or in order to get a better bargain, and then sell the surplus; but such laws may be unconstitutional. Land may, of course, be taken for all municipal purposes, including public squares or parks, playgrounds, reformatories and penal institutions, levees, ditches, drains, and for cemeteries; and the right is being granted to private companies other than those above mentioned, in Colorado, to tunnel, transportation, electric power, and aërial tramway companies; in North Carolina to flume companies; in many States for private irrigation districts; in the West generally to mining or quarrying companies; in West Virginia and other States to electric power, light, or gas companies; while in North Carolina, Washington, and Wisconsin, we find the dangerous grant of this great power to electric-power companies, which are, in Wisconsin at least, expressly permitted to flood lands by right of eminent domain in order to form ponds for power purposes. It is easy to see that under such legislation everybody holds his land not only subject to public need, but to the greed of any designing neighbor. Perhaps the most important question of eminent domain is or was whether it authorized general schemes of internal improvement made by the State or by a municipality, or, worse still, by a private corporation chartered for the purpose. The Constitution of Michigan, with those of the Dakotas and Wyoming, provides that the State cannot be interested in works of internal improvement, nor, in North Dakota and Wyoming, engage in them except on two-thirds vote of the people; nor, in Alabama, may it loan its credit in support of such works; nor, also, in Maryland, Minnesota, Ohio, and Wisconsin, create or contract debts for them; nor, in Kansas and Michigan again, be a party to carrying on such works. But the Tennessee Constitution declares that a well-regulated system of internal improvement should be encouraged by the legislature. So, in Virginia, no town or county may become a party to any work of internal improvement except roads, and they are frequently forbidden from borrowing money for such purposes. There is, therefore, considerable constitutional check to legislation in this direction.[1] [Footnote 1: See "Federal and State Constitutions," book III, secs. 92, 324, 345 370, 391, and 395.] Taxation, of course, has from all time been the universal limitation upon property rights, though it is important to remember that until the present budget there has not in modern times been an attempt at direct taxation of the capital value of land in England; Cobbett records many "aids" of a few shillings per hide of land in Anglo-Norman times. The earliest taxation was the feudal aids imposed purely for defensive purposes, for building forts and bridges; later for foreign wars or crusades. We have traced the origin of the scutage tax as a substitute for military service and the two great constitutional principles that all taxation must be with the common consent of the realm; that is to say, of Parliament, later of the House of Commons; and must also and equally be for the common benefit. Theorists have argued, particularly with us, that under the latter principle protective tariffs are unconstitutional; but even if it be admitted that they are not for the benefit of the whole people, the exception is as old as the rule; protective tariff laws, and, earlier still, laws absolutely prohibitive of importation, being plentiful on the English statute-books before and at the time this earliest of constitutional principles appeared. There is a step beyond the protective tariffs, however, which is naturally mentioned in this connection, and that is the bounty--sums of money paid to certain interests and derived from the general taxes fund. Under the Acts of Congress there has been, I think, only one instance of a bounty; that is in the case of the Louisiana sugar-growers. In State legislation it has been a little more usual. Foreign countries, notably Germany and France, as to beet sugar, etc., have been in the habit of giving bounties. This precedent undoubtedly suggested it; but these countries do not enjoy our constitutional principles. There has hardly been a direct decision on the constitutionality of the Federal bounty, but as to State bounties we find several, with an increasing tendency to hold void such laws. There can be no question that they are utterly against our whole constitutional system. The Supreme Court, when considering sugar-bounty laws, seems to have thought that it might be sustained as a compensation made for a moral obligation, the Louisiana planters having been led into industries from which the protection was suddenly removed; of such nature must be the justification, if any, for bounties given in times of flood, fire, or public disaster, which, however, are really sustained only in the absence of objection and on the principle _lex non curat de minimis._ The most insidious form of the bounty, however, is that of exemption from taxation, or, still worse, granting subsidies or subscribing to the stock and bonds of public-service, or even ordinary private, corporations. Undoubtedly the exception has been established in the case of railroads. The granting of State, city, or county aid to railroads has existed almost from their invention, probably on the analogy of highways; at all events, it is too late to be constitutionally questioned now. The exemption from taxation of private profitable enterprises, such as mills or factories, is less defensible. Frequently, however, they go without question, it being to no one's particular interest to do so. The usual subjects of State bounties were, in 1890, beet-root sugar, binding twine, iron and iron pipe, potato starch, and rope, with tax exemptions to Portland-cement works. Ramie fibre continued a favorite subject of bounty for some years, with seed distributions to farmers, which were in some States held unconstitutional. In 1896 Utah gave a bounty on canaigre leather and silk culture. There was an exemption on salt plants in Michigan, but beet sugar continued the favorite beneficiary. There has been a reaction against bounty legislation of recent years. In 1908, for instance, New York repealed its bounty on beet sugar, and it may be hoped, with greater intelligence of constitutional principles, that all such legislation will be abandoned. Coming to matters of ordinary taxation, of course the first thing to note is its extraordinary extent. In direct taxation it is not an unfair estimate to say that the States and their municipal organizations undertake to impose an annual assessment on real and personal property which would average at least two per cent. throughout the country; amounting to from one-third to one-half of the income derived therefrom. In indirect taxation, duties, and revenue taxes, a sum far greater is taken from the average household. One might very much wish that the individual householder might at least know how large a sum is thus taken from his earnings annually, for it is safe to say that in no civilized country, not even in the France before the Revolution, was individual taxation anything like so heavy. Therefore, we are beginning to find legislation, even constitutional provisions, carefully limiting the tax rate. The amount of the State tax is thus limited in probably half the States, mostly Southern or Western, and nearly all of them limit also the amount of taxation to be imposed by the counties, cities, towns, school districts, or for other special purposes. In the North-eastern States such limitation is not usual, though in Massachusetts and New York it exists as to certain cities. It may properly be said of such legislation that it does not appear to be so futile as one might have expected. There is, of course, a tendency to raise the limit, involving frequent constitutional amendment, or, in Massachusetts, for instance, where the limitation is put on only by statutes, by later statutes authorizing the borrowing outside of the debt limit; for it should be said that such limitations do usually apply both to the appropriations and to the funded indebtedness incurred. Still I have not observed in the last twenty years any repeal of such laws or constitutional provisions, but rather an increasing number of States adopting them, from which it may be inferred that they work satisfactorily. Nearly all the States purport to tax the capital value of both real and personal property, not, as in England, rents or incomes; and they tax "tangibles" and also "intangibles." That is to say, they undertake to tax stocks or bonds or mortgage debts; the evidence of property, as well as the property itself; and the debt as well as the property securing It. Some States, such as Pennsylvania, impose a smaller, more nominal, tax upon stocks and bonds in the hands of the owner, for the sake of getting a larger return, but in many States, such as Massachusetts, this legislation would be unconstitutional, as not proportional taxation. There is a mass of legislation every year directed to the assessing and collecting of taxes, tending more and more to become inquisitorial, requiring the tax payer under oath to furnish full schedules of his property, with provision for an arbitrary assessment if he fails to do so. One effect of this has been to drive very wealthy men from Ohio or other Western States to a legal residence in the East, where the laws are more lenient, or their enforcement more lax. The problem is a most important one and I see no signs yet of any solution in the increasing mass of legislation one finds upon this subject every year. It is to be noted--what our socialist friends have never seemed to observe--that just in so far as a man's earnings or income are taken from him in the form of taxation, you are already in a state of socialism. That is to say, to that extent is his income taken from him and administered by the state. This is an observation most unwelcome to the opponents of capitalism, so-called, who resent the conclusion that if the State and Federal governments are already taking forty per cent. of his income from him, a state of perfect socialism could do no more than take the other sixty per cent. This whole problem of taxation, indeed, is evaded at present only by the miserable solution of fraud; hardly any one, except the non-propertied classes, paying what the law purports to take from them; and the non-propertied classes only pay it because their taxation, being indirect, is paid for them by others. Coming to other forms of taxation, we may distinguish three: Income, succession, and license. Income taxation in England dates, it is said, from 1435; but (in the shape of tithes) it is far older. The power of income taxation (except upon earnings and profits) belongs here only to the States; just as the sole power of imposing duties on imports is given to the Federal government. Many of the States impose an income tax, but I observe no particular increase in that kind of taxation in the legislation of the last twenty years. A man's income is commonly taxed with his other property. It is a form of tax far more evaded here than in England, probably because the English law provides a machinery for collecting a large part of income taxation from the persons from whom the income is derived, as, for instance, from the tenant who pays rent to a landlord; just as with us a corporation is made to pay the tax on its capital stock nominally due from the individual owner. The only notable extension of income tax legislation is in the establishment of the principle of the _graded_ income tax, which is beginning to be adopted in a few States, as in North and South Carolina in 1897. This principle of graduated taxation has, however, been nearly universal in our next and more modern variety--the succession tax. The old English precedents are the "aids" and fines for alienation. But beginning here about 1893, this form of taxation has now been adopted by nearly all the States, the amount of the tax being graded both according to the relation of the inheritors to the person from whom the succession is derived, and according to the amount of the inheritance itself; the rate of the tax thus varying all the way from an absolute exemption, as to the wife or children, to a tax as high as twenty-five per cent. (in New York) in the case of large estates going to remote relatives. The Federal inheritance tax imposed at the time of the Spanish war was soon repealed, and this domain of taxation, with the income tax, is now almost universally employed by the States. The principle itself can hardly be carried much farther, but it will be necessary to have some understanding or arrangement between the States, whereby double or treble succession taxes are not imposed on the same estate, as notably in the case of the stock or bonds of railroads chartered in several States, all of which may undertake to impose full succession taxes upon such stock. It has been held that succession taxes may be graded even in cases where a State constitution provides for proportionate taxation, the tax being an excise tax and not a direct property tax; but this is not so in respect to income taxes. We may assume therefore that income taxes must be equal in States which have this constitutional provision, although in one or two of them recent statutes have exempted a portion of the income of veterans of the Civil War. This might be sustained as a pension, pensions being for actual military service constitutional, and are in the Southern States expressly permitted to Confederate soldiers and their families--despite the implied prohibition of the Fourteenth Amendment. The last form of taxation, that of an excise upon licenses or trades, is most usual in the South. An increasing number of trades are thus being taxed or regulated. Sometimes the taxation is put under the guise of a fee for examination and licensing, sometimes plainly as an excise tax. Undoubtedly such taxation is against all the history of our legislation demanding complete freedom of labor and trade. Nevertheless, it has not been held unconstitutional by the States except, of course, when touching a trade which is interstate commerce, though the _examination_ occasionally has been. Such taxation has not yet become popular in the North, except definitely for the purpose of examination and license; but it is almost universal in the South, many States indeed providing by their constitution or laws that all trades and callings may be thus taxed. These taxes may be arbitrary in amount, but are sometimes graded according to the amount of business done. Such legislation has been sustained in so far as it is a tax or a license imposed for protecting the public health in a reasonable manner; thus, doctors, plumbers, nurses, dentists, etc., have been submitted to such regulation, but in the case of blacksmiths its constitutionality was in one State denied, and the law as to barbers in several States annulled. Nevertheless, it will always be a popular method of raising money in the poorer States, where land already bears its full burden and little personal property can be found. Commissions of inquiry on this whole subject of taxation are continually being appointed--we have had two in Massachusetts in the past ten years--and their recommendations nearly always prove unacceptable. The probable scientific answer, that you must only tax property and not money or the evidence of property, and that if direct taxation thereby becomes too burdensome we must reduce our rate of expenditure, is a conclusion our legislators are yet unwilling to accept. The taxation of corporations presents a different problem and we shall therefore leave it for special consideration with that subject. The matter of betterment taxes may be dismissed with a word, as it is hardly, in theory, taxation at all, but rather using municipal agencies to collect the cost, or part of the cost, of a local work or benefit. It is, of course, closely connected with the subject of eminent domain. That is to say, only a public use, or at least a general local benefit, can justify a betterment tax. There is still considerable legislation on this matter, confined generally to the objects of securing a jury trial, or at least a public hearing, on the amount of the assessment, defining the purposes for which it may be imposed, as, for instance, paving, sewers, water-works where public, and--perhaps the most contested case of all--that of parks or pleasure-grounds; and providing that the amount of betterment taxes imposed shall not exceed one-half the value of the improvement of the property, and shall never exceed the amount paid as damages when part of the owner's land is taken. By far the greatest mass of legislation relating to property is concerned with the police power and modern extensions thereof. It is also by far the most dangerous to property rights, and this for several reasons: firstly, it involves the destruction of property without any compensation whatever, not upon payment of damages, as in the ease of eminent domain; secondly, on account of the extraordinary extension by our modern legislation of this power to matters not hitherto deemed necessary for the safety, health, or even the well-being of the public, vague as the legal application of the last word is; thirdly, and perhaps most important, because the police power is usually exercised without any common-law guarantees, without process of law or jury trial, but by the arbitrary ruling of some board, or even single commissioner, and often, so far as the statute is concerned, without a jury or even an appeal from the commissioner's ruling to any court of law. I believe this to be the most dangerous tendency that now confronts the American people--government by commission, tenfold more dangerous than "government by injunction." Not only is there no liberty, no appeal to common right and the courts, but all permanent "boards" tend to become narrow and pedantic or, worse, to be controlled by the works they are created to control.[1] The constitutionality of such boards is, of course, always questionable, but the tendency to create them is perhaps the most striking thing in modern American legislation. Not only do we find them in enormously increased numbers in all the States, but even a late President of the United States seriously recommended that the contracts and affairs of all corporations at least (and the bulk of modern business is done in corporate form) should be so submitted to the control or dictation, or even the nullification, of such an administrative board or commission, and this again with no appeal to the courts. So audacious an upsetting of all Anglo-Saxon ideas of the right to law, it may be said without exaggeration, has never been attempted in the history of the English people, not even by the Stuart kings, who were most of all disposed to interfere in such particulars. Wiser counsels deterred the administration from insisting on this measure, but the fact that it could be brought up, and that with the approval of a large portion of the public, indicates how radical our legislation is getting to be in this particular. [Footnote 1: Two singular instances happened only the past year: at common law any one may build railroads, and they are certainly for the general advantage whether profitable to the owners or not. Yet the railroad commissions of New York and Massachusetts have recently in each State prevented the building of most important lines, by responsible applicants--under the opposition of other railroads.] It is a commonplace in the law that no court has defined, or ever will consent to define, the exact limits of this police power; suffice it to say that in the classic words of Chief Justice Shaw of Massachusetts, "it is all that makes for the health, safety, or comfort of the people." As to the health and safety, there can be little question; but when it comes to indefinite words like "comfort" or "well-being," too wide a field is left for the imagination. It has recently been decided that the aesthetic part of life does not necessarily concern the comfort or well-being of the people. That is to say, laws forbidding the use of land for the erection of hideous signs, or forbidding the height of buildings at an inartistic excess have been declared not to fall within the police power, but under eminent domain. So of statutes forbidding the taking of a man's picture, or a woman's portrait for advertising purposes, when not properly obtained; yet it may be questioned if any law is more certainly for the comfort of the persons concerned than such a statute. On the other hand, noisy or noxious trades, mosquito ponds, trees infected with moths, etc., sawdust in water, offensive smoke, and, in Vermont, signs, were all made nuisances by statute of one State or other in 1905 alone. The first historical instance, perhaps, of destruction of property under the police power was the blowing up of buildings to check a conflagration, a practice still common, although its utility was much questioned after the Boston fire, and which, at common law at least, gave the owner no right to compensation; but the more usual use of the police power until very recent years has been limited to the prohibition of offensive trades in certain localities, and the suppression of public nuisances. Later, the prohibition of the manufacture of intoxicating or malt liquors, and the regulation of tenement houses at the orders of the Board of Health. This led to the regulation or prohibition of certain trades conducted in tenement houses or in sweat shops, and to other matters which we shall find it more convenient to consider under the head of labor legislation. Whether there are any limits to this power is much discussed. There is no question that the power must not be arbitrary or utterly without reason, and of that reason the courts must and do in fact judge. Taking property for a purpose unjustified by the police power is, of course, taking property without due process of law. An arbitrary statute taking the property of _A_ and giving it to _B_, or even to the public, without compensation has, from the time of Lord Coke himself, been the classic definition of an unjustifiable law and one which with us at least is unconstitutional; but our courts wisely refuse to judge if, when a proper police motive is disclosed in the statute, it is the _best_ method of effecting the result. This, I think, is a clear statement of the principle of our court decisions. If, upon the face of the statute, the court can see no possible relation to the public health or safety, or, possibly, general welfare, it will hold the law null in so far as it invades either property or liberty rights because not under the police power. If, on the other hand, they can see _some_ relation to the public health, safety, or general welfare, even though they do not think it the best method of bringing about the desired result, they will not presume to run counter to legislative opinion. Of the expediency of the statute, the legislature must be and is the final judge. With us the police power is exercised largely for moral reasons. That is to say, the great instances of its extension have been connected with moral or sanitary reform. No doubt the police power may broaden with advancing civilization and more complex appliances and possibly greater medical knowledge and social solidarity. No doubt purposes which were once lawful may be unlawful, and property devoted to them thus be destroyed by a change in the law. Mr. Justice Brewer, of our Supreme Court, holding the contrary view, was overruled by the majority, and that decision is final.[1] Not only we, but a State, may not even make a contract which shall be immune from future extension of the police power, the Dartmouth College case notwithstanding. For instance, the State of Massachusetts in 1827 granted a perpetual franchise to a corporation to make beer. It was allowed, forty years later, to pass a law that no corporation should make beer, and the brewery became valueless. The State of Minnesota granted a perpetual franchise to a railroad to fix its own fares. Twenty years later it took away that right, thereby, as claimed, making the railroad property valueless; the railroad had no remedy. A man in Connecticut had barrels of whiskey in a cellar for many years, but the State was allowed to pass a law prohibiting its sale; which, of course, had he been a teetotaler, would have deprived that property of all value, and in any case, of all exchange value. A man in Iowa owns one glass of whiskey for several years, and then a law is passed forbidding him to sell it; the law is valid. A youth in Nebraska buys tobacco and paper and rolls a cigarette. The State afterward passes a law forbidding smoking by minors. It is a crime if he light it. Sufficient has, perhaps, been said to show the extraordinary scope and elasticity of this, the widest, vaguest, and most dangerous domain of our modern legislation, though perhaps we should add one or two striking cases affecting personal liberty, as, for instance, a citizen of Pennsylvania marries his first cousin in Delaware and returns to Pennsylvania, where the marriage is void and he becomes guilty of a criminal offence; a white man in Massachusetts who marries a negress or mulatto may be guilty of the crime of miscegenation in other States; a woman might work fifty-eight hours a week in Rhode Island, but if she work over fifty-six in Massachusetts may involve her employer, as well as herself, in a penal offence. [Footnote 1: Mugler _v_. Kansas, 123 U. S, 623.] The most valuable of all police legislation is, of course, that to protect public health and safety; and prominent in the legislation of the last twenty years are the laws to secure pure and wholesome food and drugs. Possibly "wholesome" is saying too much, for our legislative intelligence has not yet arrived at an understanding of the danger from cold storage or imperfectly canned food, though Canada and other English colonies have already legislated on the subject, to say nothing of our tariff war with Germany on the point. One may guess that ninety-nine per cent. of the present food of the American people, leaving out the farmers themselves, is of meat of animals which have been dead many months, If not years, and from vegetables which date at least many months back. It is nonsense to suppose that such food is equally wholesome with fresh food, or that there is not considerable risk of acute poisoning or a permanent impairment of the digestive system. Senator Stewart, of Nevada, has shown that nearly fifty per cent. of the soldiers of the Spanish War had permanent digestive trouble, as against less than three per cent. in the Civil War, which took place before cold-storage food was known, or canned food largely in use. It was hopeless for the States to act until there was Federal legislation on the subject, as the health authorities had no constitutional power over goods imported from other States; but the passage, under Roosevelt, of a national food and drugs act has given a great impetus to the reform, and by this writing more than half the States have passed pure-food laws, being usually, as they obviously should be, an exact copy of the Federal Act. Among the articles specially mentioned in such legislation we find candy, vinegar, meat, fertilizers, milk, butter, spices, sugar, cotton seed, formaldehyde, insecticide, and general provisions against adulteration, false coloring, the use of colors and preservatives, etc. Going from matters merely unwholesome to actual poisons, the course of legislation on intoxicating liquors is too familiar to the reader to make it necessary to more than refer to it, with the general observation that in the North and East the tendency has been toward high licensing or careful regulation, always with local option; while in the West originally, and now in the South, the tendency is to absolute "State-wide" prohibition and even to express this principle in the constitution. How much this extreme measure is based on the racial question, in the South at least, is a matter of some debate; and the working of such laws everywhere from Maine to Georgia, of considerably more. One may hazard the guess that the wealthier classes have no difficulty in getting their liquor through interstate commerce, while the more disreputable classes succeed in getting it surreptitiously. Prohibition, therefore, if effective at all, is probably only effective among the respectable middle class where, perhaps, of all it is least needed. In the older States, at least in Massachusetts, there has been a decided tendency away from prohibition in the last twenty years, and even from local prohibition in the larger cities. Worcester, for instance, after being the largest prohibition city in the world, ceased to be so this year by the largest vote ever cast upon the question. Whatever may be said of the strict prohibition of liquor dealing, no one can have any objection to such laws as applied to cocaine, opium, or other poisonous drugs, and we find statutes of this sort in increasing number; while the manufacture and sale of cigarettes to minors or even in some States, their consumption, is strictly prohibited, under criminal penalty. Laws of a similar sort were aimed at oleomargarine when invented, but this probably not so much to protect the health of the people as the prosperity of the dairymen. The mass of such legislation has emerged from the scrutiny of the courts, State and Federal, with the general result that only such laws will be sustained as are aimed to prevent fraud; but the manufacture and sale of oleomargarine under that name cannot be prohibited. Artificial coloring matter may be forbidden, but a New Hampshire law was not sustained which required all oleomargarine to be colored pink; so it may be guessed that the laws of those States which make criminal the sale or use of cigarettes to or by children "_apparently_" less than sixteen or eighteen, will hardly be sustained as a constitutional police measure; yet such laws existed in 1890, while the State of Washington in 1893 made the sale even of cigarette paper criminal. Another important line of modern legislation consists in the subjecting of trades to a license for the purpose of _examination_ (the tax feature has been discussed above). Such laws are constitutional when applied to a trade really relating to the public health, but as we have found above, black-smithing is not such an one; when imposed merely for the purpose of raising revenue, such legislation is undoubtedly constitutional under our written constitutions, but opposed to historic English principles, which insisted for seven centuries of statute-making on the utmost liberty of trade. In a South American republic you have to get a concession before going into almost any business, even maintaining a shoe-shop, or a milk farm, which concession is, of course, often obtained by bribery or withheld for corrupt reasons. It is to be hoped that the citizens of our States will never find themselves in that predicament. Still, certain State constitutions, as that of South Carolina, provide absolutely that all trades may be made subject to a tax, and the tendency--particularly in the South--to raise revenue in this way is increasing by leaps and bounds. Among the trades already subjected to such licensing or taxing, we find doctors, of course, and properly, pharmacists, plumbers, pedlars, horse-shoers, osteopaths, dentists, veterinary surgeons, accountants, bakers, junk dealers, coal dealers, optometrists, architects, barbers, commission merchants, embalmers, and nurses. Of course it is a motive to novel or irregular trades to secure a licensing law from the State, for the slight tax insures them protection. This is the reason that we find common statutes allowing osteopaths, etc., to be licensed. So far as I have observed, there is no such statute as yet in any State applying to Christian Scientists. Police regulation for the _safety_ of the public is found nearly entirely in the laws regulating labor, factories, mines, or machinery, and will be accordingly treated in that connection. Laws protecting the public against fraud, which from earliest times has been a branch of police legislation, have been of late years numerous, principally in connection with the prohibition of dealing in futures or sales on margin, of sales of goods in bulk without due precautions and notice to creditors, of the issue of trading stamps or other device tending to mislead the public. Some States have prohibited department stores, but this legislation has been held unconstitutional, though the early English labor statutes forbidding to any person more than one trade or mystery will by the historical student be borne in mind. Usury laws, of course, are still frequent, but decreasing in number with the increasing modern tendency to allow freedom of contract in this as in other matters, except only to such persons as, for instance, pawn-brokers, who peculiarly require police regulation. Coming to statutes which merely facilitate business as it now exists, by far the most important movement has been the successful work of the State Commissioners on Uniformity of Law in getting their negotiable instrument act passed in nearly all the States, and in several already their uniform law statute on sales, only recommended in 1907. Some progress has been made in getting a uniform standard of weights and measures, and there is an increasing tendency to prescribe specific weights and markings for packages--possibly unconstitutional legislation. Still more important as a change in previously existing law has been the increasing tendency to make documents other than bills and notes negotiable. Perhaps this is a matter which requires explanation to the lay reader. The early Anglo-Saxon law could not conceive of ownership of property as distinct from possession, and to their simple minds, when ownership was once acquired it was impossible to divest the owner of his property by any symbolical delivery. Hence the very early statutes making fraudulent sales or conveyances of property without actual and visible change of possession. The notion of a symbol, a paper or writing, which should represent that property would probably have impressed them like a spell or charm in a child's fairy tale. Even theft with asportation could not alter property rights, even in favor of innocent purchasers, when the owner did not intend to part therewith. A moment's recollection of what is now perhaps the most familiar of Teutonic saga to the ordinary reader, the text of Wagner's "Ring of the Nibelung," will give ample evidence of that mental attitude. But the Oriental mind was far more subtile. To the Jews or Lombards we owe the discovery of that _bill of exchange_--the first of negotiable instruments, and the first historically to bring into our law the legal concept of a symbol of ownership which might be instantly transferred with an absolute change of title in the property thereby represented, and this either to a present transferee or to one far away. Thus, a simple bill of exchange might transfer the ownership in a pile of gold in a moment from a man in Venice to a man in London, thereby (if the law-merchant was respected) freeing the treasure itself from attack at the hands of the Venetian authorities. And not only was this change of ownership instantaneously effected by the transfer of some symbol or document representing it, but there also, and as a necessary part of the invention, grew up the doctrine that the transferee was relieved of any claims against the property at the hands of the previous owner. This is what we mean by negotiable; and it is essential that the precise meaning of the word should be understood if we are to understand the importance of this legislation. Even most business men have a very vague understanding of the difference between _negotiable_ and _assignable_. Substantially all property and choses in action are assignable, except personal contracts; and in ordinary business many of them are assumed to be negotiable, such as bills of lading, warehouse receipts, trust receipts, or certificates of stock. Most brokers, or even bankers, assume that when they have a stock certificate duly endorsed to them by the owner mentioned on its face they have an absolute and unimpeachable title to the stock therein represented. Such, of course, is not the case except for recent statutes in a few States. To take a familiar example, and I can think of none better to show exactly the difference between a personal contract non-assignable, a document which is assignable, and one which is negotiable--a Harvard-Yale foot-ball ticket. If the ticket is issued by the management to a person under his name, with a condition that it shall be used by no one else, it is a contract non-assignable. If it is issued to him in the same manner, but with no provision against assignment or the use by another person, it would entitle such other person to whom the ticket was given to use the seat, but only under the title of the original holder; and if the assignment was later forbidden, or for other reasons the right recalled by the management, the holder would have no greater title to the seat; the contract is _assignable_, but not negotiable. The assignee takes it merely as standing in the place of the original holder and subject to all the equities between him and the management. If, for instance, the ticket were given him by fraud, the right to use it might be revoked and the transferee would have no greater right than the original holder. But if the ticket were _negotiable_, like a bank-note payable to bearer, the holder, not actually himself the thief, would have an absolute title to the seat without regard to anything that happened prior to his getting possession of the ticket. Now it is obvious that it is for the enormous convenience of business to have business documents made negotiable. If a banker can loan on a bill of lading or a warehouse receipt, or a trader can buy the same, or if a man can give a trust receipt to his banker agreeing that all his general shipments or stock in trade shall be the property of that banker until his debt is paid, it makes enormously for the rapid turning over of capital, and the extension of credit. Of course, an enormous proportion of business in the United States is conducted upon credit, and without the invention of the negotiable instrument those credits could not be secured without an actual delivery of the commodities intended to secure them. And the custom of business is to consider most such documents negotiable even when in fact they are not so. It is more than usual to loan money upon warehouse receipts, bills of lading, stock certificates or trust receipts of all descriptions, regardless of the question whether the law of the State makes them negotiable. Hence the very great tendency to make such instruments negotiable by statute; and I find many such laws, beginning in 1893 in North Carolina, as to warehouse receipts, while the Massachusetts statute concerning stock dates from 1884. A reaction to the English common law is the statute, common in recent years, prohibiting sales in bulk. It appears to have been a growing custom for merchants, particularly retail merchants, when in financial difficulties to sell their entire stock in trade to some professional purchaser by a simple bill of sale without physical delivery. Nearly all States have adopted statutes against this practice, although in several they have been held unconstitutional. The feeling that they are dishonest is doubtless justified by the facts; but it may also be truly described as a reaction to the simpler English law as against Oriental innovations. The descent of property throughout the United States is regulated by English common-law ideas. That is to say, there is no primogeniture, although in early colonial times the older son took a double portion; and there is, except in Louisiana, complete liberty of testamentary disposition, although in one or two other States there have been statutes forbidding a man to dispose of all his estate to a charity within a short time previous to his death, to the prejudice at least of his direct heirs. The Code Napoleon, of course, limits testamentary disposition in favor of these latter, so in Louisiana, only half of a man's estate can be given away from his children or widow, and not more than three-fourths of his estate can be bequeathed to strangers or to charity, to the prejudice even of collateral heirs. In matters of general business the usual lines of legislation have been the ordinary ones found in English history. That is to say, statutes of frauds, usury or interest laws, and other familiar matters. The only tendency one can note is a broad range of legislation devised in the interest of the debtor--not only liberal insolvency laws now superseded by the national bankruptcy act, which is still more liberal than the laws of the States preceding it, but statutes restricting or delaying foreclosure of mortgages, statutes exempting a substantial amount of property, implements of trade, agricultural articles, goods, land, or even money, from the claims of his creditors. The exemption of tools or implements of trade goes back to Magna Charta, it will be remembered, but the exemption of other articles is modern and American. There is probably, however, no subject which is so apt to be let alone by our legislatures as that of business law. Upon that subject, at least, they are fairly modest and inclined to think that the laws of business are known better by business men. Imprisonment for debt is, of course, absolutely abolished everywhere, and in most States a woman is not subject to personal arrest in civil process. The statutes prevailing throughout the country, which give special preference to claims for wages or even for material furnished by "material men," have already been noted. It may be broadly stated that the presumption is that such claims are everywhere a preferred debt to be paid out of the estate of the insolvent, living or dead, in preference to all claims except taxes. The security of mortgages is very generally impaired by legislation confining the creditor to only one remedy and delaying his possession under foreclosure. That is to say, in far Western States generally, he cannot take the land or other security, and at the same time sue the debtor in an action for debt for the amount due, or the deficiency. This, of course, makes of a mortgage a simple pledge. Moreover, with the practice of delaying possession under foreclosure, appointing receivers in the interest of the debtor, etc., he is in many States so delayed in getting possession of his security that by the time he acquires it he will find it burdened with overdue taxes and in a state of general dilapidation. We have already alluded to the practice in California of compelling the executor of a mortgage to submit himself to the jurisdiction of the local public administrator, which practically results in a sequestration of a considerable portion of the property. For all these reasons, many conservative lawyers in the East, at least, would not permit their clients to invest their money in mortgages in California, Minnesota, Washington, or the other States indulging in such legislation, and partly for this reason the rate of interest prevailing in mortgages is very much higher in the far West than it is in States east of the Missouri River. The greatest mass of legislation is, of course, that upon mechanic's liens, which are burdensome to a degree that is vexatious, besides being subject to amendment almost every year. In a general way, no land-owner is free from liability for the debt of any person who has performed labor or furnished materials on the buildings placed upon the land, even without the knowledge or consent of the land-owner in some States, though in one or two instances, notably in California, such legislation has been carried to such an extreme as to make it unconstitutional. The matter of nuisances has been already somewhat covered. Legislation extending the police power and declaring new forms or uses of property to be a nuisance is, of course, rapidly increasing in all States. The common-law nuisance was usually a nuisance to the sense of smell or a danger to life, as, for instance, an unsanitary building or drain. Noise, that is to say, extreme noise, might also be a nuisance, and in England the interference with a man's right to light and air. Legislation is now eagerly desired in many States of this country to make in certain cases that which is a nuisance to the sense of sight also a legal nuisance, as, for instance, the posting of offensive bills on the fences, or the erection of huge advertising signs in parks or public highways. Such a law was, however, held unconstitutional in Massachusetts. There is some legislation against the blowing of steam whistles by locomotives, although I believe none against the morning whistle of factories, and some against the emission of black smoke in specified durations or quantities. But perhaps the most important legislation affecting simple matters of business other than the line of statutes already mentioned, making new negotiable instruments and controlling the title of property by the possession of a bill of exchange, bill of lading, warehouse or trust receipt, are those statutes prohibiting the buying of "futures," or the enforcement of gambling contracts to buy or sell stocks or shares or other commodities without actual or intended change of possession, which we have necessarily referred to in our discussion of restraint of trade (chapter 4). There is a very decided tendency throughout the country, particularly in the South, to prohibit all buying or selling of futures, that is to say, of a crop not actually sold, or of any article where physical delivery is never intended, and it will be remembered we found plenty of precedent for such legislation in early English statutes. Gambling contracts may be forbidden only in specified places, such as stock exchanges; and the buying of futures may be specially permitted to favored persons, such as actual manufacturers intending to use the goods; and both such statutes will be held constitutional and not an undue interference with the liberty of contract. These matters were largely covered by the statutes of forestalling in early times. Legislation more distinctly modern is that against sales in bulk, and against department stores; more striking still is the statute, already passed in Wisconsin and Virginia, forbidding all tips, commissions, or private advantages secured by any servant or agent in carrying on the business of his principal, his master, or the person with whom he deals; the statute even forbids a gratuity intentionally given directly from the one to the other. It is hard to see how the last clause of the law can be held constitutional, any more than the laws forbidding department stores, although such commissions may be forbidden to be given "unbeknownst." Weights and measures are standardized by the Federal government, and to these standards the States in practice all conform, but the legal weight of a bushel or other measure of articles varies widely in the different States, and the State Commissioners on Uniformity of Law have tried in vain to get the matter generally regulated. At one time the weight of a barrel of potatoes in New York City was fourteen pounds more than it was in Hoboken, across the river. In Massachusetts the weight of a barrel of onions was increased two pounds to conform with the uniform law recommended to all the States by the commissioners; but a representative in the State Legislature coming from a locality of onion farms lost his seat in consequence, which inspired such terror in other members of the State Legislature that the uniform law was promptly repealed, the weight of the barrel of onions put back at the former figure, and this over the veto of the governor. It is needless to say that the whole value and object of the whole movement for uniformity is to have actual uniformity. That is to say, unless the lawyer or citizen reading the statute can be sure that it is uniform with the laws of all other States without taking the trouble to consult them, the reform has no value. But it has proved almost hopeless to get this through the brain of the average legislator. The uniform law upon bills and notes, indeed, already mentioned, is treated with more respect; because, as has been said above, they regard that as a matter of business, and they have some respect for the expert knowledge of business affairs possessed by business men. The licensing of trades might be made a very valuable line of legislation to prevent the fleecing of the ultimate consumer by the middleman. Our ancestors were of the opinion that the middleman, the regrator, was the source of all evils, and they were also of the opinion that any combination whatever to control the price of an article of food, or other human necessity, or to resell it elsewhere than at its actual market and at the proper time, was a conspiracy highly criminal and prejudicial to the English people; in both of which matters they were, in the writer's opinion, perfectly right, and far more wise than our modern delusion that "business"--that is to say, the making of a little more profit from the larger number of people--justifies everything. Now, at the time of the coal famine of 1903, Massachusetts passed a statute licensing dealers in coal; the law for the municipal coal-yard having been declared unconstitutional. The object of this statute was not to derive revenue or to restrict trade, but to regulate profits; and in particular to prevent the retail coal-dealers from combining to fix the price of coal themselves. Yet in spite of this legislation, the ice-dealers of Massachusetts only this year (1910) assembled in convention in Boston upon a call, widely advertised in the newspapers, that they were holding the assembly for that precise purpose, that is to say, to fix and control the price and the output of ice. They were, indeed, "malefactors of great wealth"; at least we may guess the latter, and the animus of a more intelligent precedent may some day hopefully be directed to such definite evils, of which our ancestors were well aware, rather than blindly running amuck at all. The coal-dealers in Boston, by the way, made the same argument that is always made, and was made at Athens in the grain combination of the third century B.C.--to wit, that they put up the prices in order to prevent other people buying all the coal and speculating in it; but notwithstanding that showing of their altruistic motives, the secretary of state revoked the license of the coal company in question. The statute also forbade the charging extortionate prices, which, again, was a perfectly proper subject of legislation under the common law; but, unfortunately, was carelessly drawn, so that it resulted in a somewhat cloudy court opinion. For the matter of uniform legislation the reader must be referred in general to reports of the National Commission. Their greatest achievement has been the code of the law of bills and notes just mentioned. Besides this they have just adopted a code on the law of sales, and they have recommended brief and uniform formalities as well as forms for the execution and acknowledgment of deeds and wills, and have very considerably improved the procedure in matters of divorce. The best modern legislation concerning trade and business is, of course, that of the pure-food laws. The Federal law has certainly proved effective, although it is in danger of being repealed or emasculated in the interest of the "special interests"; most of the State laws simply copy it. Undoubtedly the laws should be identical in interstate commerce and in all the States; and this can only be done by voluntary uniform action. VIII REGULATION OF RATES AND PRICES This, the last method of infringing upon absolute rights of property, has assumed such importance of recent years as to deserve and require a chapter by itself. The reader will remember what precedents we found for the fixing of prices, wages, and rates or tolls in England. It may be convenient for our purposes to use these three definite words to mean the three definite things--prices in the sense of prices of goods or commodities; wages the reward of labor or personal services; and rates (the English word is tolls) for the charges of what we should now term public-service corporations, or in old English law, franchises, or what our Supreme Court has termed "avocations affected with a public interest." The reader will remember that the attempted regulation of prices began early and was short-lived, dating from the Assize of Bread and Beer in 1266, to the Statute of Victuals of 1362, hardly a century, and even these two precedents are not really such, for the first only fixed the price of bread and beer according to the cost of wheat or barley, just as to-day we might conceivably fix the price of bread at some reasonable relation to the price of flour in Minneapolis, and as it was fixed in ancient Greece by the wholesale price of wheat at Athens[1]--not as it now is, from three to four times the cost of bread in London, although made out of the same flour shipped there from Minneapolis; and the two latest statutes expressly say that they fix the price by reason of the great dearness of such articles on account of the Black Death or plague, and the consequent scarcity of labor. Then the Statute of Laborers of 1349 provided that victuals should be sold only at reasonable prices, which apparently were to be fixed by the mayor. With these statutes the effort to fix prices by general statute disappeared from English civilization save, of course, as prices may be indirectly affected by laws against monopoly, engrossing, and restraint of trade; and local ordinances in towns continued probably for some time longer. [Footnote 1: For an actual report of an indictment and jury trial for forestalling and regrating wheat in the third century B.C., see Lysias's oration, translated by Dr. Frederic Earle Whitaker, in _Popular Science Monthly_, April, 1910.] Legal regulation of _wages_ lasted much longer in England; and has reappeared in very recent years, at least in the Australasian colonies, with a beginning of such legislation in Great Britain and Ireland and the State of New York. The first Statute of Laborers merely provides that the old wages and no more shall be given. The next year, however, in 1350, the exact rate of wages was fixed; and this lasted for more than two centuries, to the reign of Elizabeth, the so-called "great" Statute of Laborers consolidating all the previous ones. It is apt to be the case that when a statutory system has reached its full development it falls into disuse; and that is certainly the case here. There is no later statute in England until 1909 fixing directly or indirectly the rate of wages; and it may be doubted whether the justices of the peace continued to fix them for many years under the Statute of Elizabeth. More than three centuries were to go by before this principle reappeared in legislation or attempted legislation; but in Australia,[1] New Zealand,[2] and England[3] there has been recent legislation for a legally fixed rate of wages to be determined for practically all trades by a board of referees, consisting, as such boards usually do consist, of one member to represent capital, one to represent labor, and the third to represent the public or the state. As such third representative almost invariably votes on the side of the greatest number of voters, this practically makes a commission hardly impartial. The working of the system in New Zealand will be found discussed in the _Westminster Review_ for January, 1910. There is an appeal to the courts from the rate of wages fixed by such commission; and it appears that out of four such appeals, in three the decision of the commission was confirmed, and in the fourth set aside; but the workingmen disregarded the judgment of the court and struck for a higher wage--contrary to the whole theory of such legislation, which is to _prevent_ strikes. This strike succeeding, there has, therefore, been no case so far where the increasing rate of wages was checked by any appeal to the courts. [Footnote 1: So. Australia, 1906, no. 915; 1900, no. 752; Victoria, 1903, no. 1,857; 1905, no. 2,008.] [Footnote 2: See New Zealand Law of 1900, no. 51; frequently amended since.] [Footnote 3: 60 and 61 Victoria, c. 37, 9 Edward VII.] In the British Parliament last year (and the identical bill has been introduced in the State of New York under championship of the Consumers League, as applied to women and children), a bill was introduced,[1] not backed, however, by the government as such, although bearing the name of Lloyd-George, providing in effect that wages might be fixed in this manner in certain definite named trades, and also in such other trades as might be designated from time to time by the home secretary. The economic effect of such measures we are not to discuss. In the United States, except as to public work, they would be probably unconstitutional. [Footnote 1: Since enacted, see below in chap. XI.] Coming, therefore, to public work, we use this phrase for all labor contributed directly to the State, to any county, city, town, village, or municipality thereof, to any municipal-owned public-service corporation, gas, water, etc., company, or, finally, and most important, to or under any contractor for the same, or any of them. Some years ago the State of New York adopted legislation to the effect that in all such public employment the wages paid should be the usual rate paid for similar work in the same locality at the same time. As a result of this legislation, many thousands of lawsuits were brought against the City of New York by persons who had done labor for that municipality in the past, complaining that they had not in fact been paid "the prevailing rate," although in fact the work had long since terminated, and they had been discharged, paid in full, and apparently satisfied. Shortly after, the law itself was declared unconstitutional by New York courts. Thereupon the labor interests proposed a constitutional amendment in 1905, to the effect that "the legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, safety, and welfare of persons employed by the State or by any county, city, town, village, or other civil subdivision of the State, or by any contractor or subcontractor performing work, labor, or services for the State or for any city, county, town, village, or other civil division thereof." A very small proportion of the voters of New York took the trouble to vote upon this amendment, although it revolutionized the economic, if not the constitutional, system of the State, so far as property and contract rights are concerned; and it was adopted by a substantial majority. In Indiana there was a statute at one time fixing the rate of wages in public employment at a minimum of not less than fifteen cents per hour, but it was held unconstitutional. It is customary in New England villages to vote annually that the town shall pay its unskilled labor a prescribed rate for the following year, usually two dollars per day. The effect of this has been sometimes to cause the discharge of all but the very most skilful and able-bodied; of those who had, by working at less than full pay, been kept out of the poorhouse; and the selectmen of some towns, notably Plymouth, have refused to obey such a vote. The California Code of 1906 provides a minimum compensation of two dollars per day for public labor, except as to persons regularly employed in public institutions. Delaware has copied the New York statute as to the prevailing rate. Hawaii, in public labor, provides a minimum wage of one dollar and twenty-five cents per day. Nebraska goes further, and provides not only for two dollars per day for public work, but that it must be done by union labor in cities of the first class, while Nevada has a minimum wage of three dollars and an eight-hour day for unskilled labor in public work. On the other hand, the Constitution of Louisiana prescribes that no law shall ever be passed fixing the price of manual labor.[1] [Footnote 1: This matter will be found further discussed in chap. XI.] Coming lastly to _tolls_, or rates of persons or corporations enjoying a franchise, that is to say, a legalized monopoly, or exclusive legislation, or special privilege, such as eminent domain, or the right to occupy the streets; such are, in fact, identical with what we term public-service corporations, the older, the most universal, and certainly the most, if not the only, justifiable example of legal regulation of the returns for the use of property or personal services. Whatever may be thought of the economic wisdom of attempting to regulate any rate or prices by law (and for a discussion of this subject as to railways, at least, the reader may well be referred to the valuable treatise of Mr. Hugo R. Meyer, "State Regulation of Railways"), such legislation was at least in England constitutional; but in this country, owing to our specific adoption of the principle of property rights and freedom of labor and hence of freedom of contract in our Federal and State constitutions, and as it has been repeatedly decided that to take away the income from property or a reasonable return for labor by legislation is to infringe on the property or liberty right itself, we have a universally recognized constitutional objection which has, in fact, made impossible all regulation of prices and wages, except as above mentioned, and as we are now about to discuss. The first attempt to regulate rates (with the possible exception of some early colonial laws) was the so-called Granger legislation, as shown in the Illinois Constitution of 1870, authorizing a warehouse commission to fix charges for elevating grain, the Act of Iowa of 1874 establishing reasonable maximum rates for railways, a similar act in Wisconsin of the same year relating to railroad, express, and telegraph companies, and in Minnesota; which legislation was all sustained by a divided opinion in the so-called Granger cases headed by Munn _v._ Illinois, 94 U.S. 113. In the many years which have elapsed since this famous decision, the clouds have rolled away and the shape and basis of that apex of our jurisprudence been fairly surveyed. It will appear, I think, to any dispassionate jurist to have been rightly decided, at least as to the railroads, though the reasons given by Chief Justice Waite are unsatisfactory and have little logical basis. The true basis of regulation of rates at the common law and in English history was _monopoly_; either a franchise directly granted by the crown, such as a bridge, ferry, or dock, or one which was geographically, at least, exclusive, like a dock without a franchise. As Lord Ellenborough said in the decision quoted by the Chief Justice himself: "Every man may fix what price he pleases upon his own property, or the use of it; but if for a particular purpose the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly, he must, as an equivalent, perform the duty attached to it on reasonable terms." "_If for a particular purpose the public have a right to resort to his premises_"--this important qualification from now on seems to have been lost sight of in the majority opinion. Quoting the early precedents such as that statute of William and Mary regulating the charges of common carriers--and our readers will remember many more--and the case of cabmen whose charges are regulated by city ordinances--but they are given stands or exclusive privileges in the streets--the chief justice concluded with the startling proposition that "if they do not wish to submit themselves to such interference, they should not have clothed the public with an interest in their concerns." But the public has an interest, as was afterward pointed out in dissenting opinions, in the price of shoes; yet it has never been supposed that that gave any power of legal regulation of factory prices. A still stronger case is that of inns or hotels, which have always been "a public avocation." They have had to take in all travellers without discrimination; yet there is not a vestige of legislation in the English statute-book regulating the prices to be charged by hotels. Indeed in early times most employments--millers, barbers, bakers--were public in the sense that the man could not refuse a job; yet their prices were never regulated. Yet it was upon this phrase, "_public employment_" or "_private property affected with a public interest_," taken from the opinion of Justice LeBlanc in the London Dock Company case, decided in 1810, without its context, that the chief justice built up the whole reason of his decision. The _decision_ in Munn _v._ Illinois, subject to court review as to whether the rate be confiscatory, remains good law, but the _opinion_ is still open to question; and indeed the most recent decisions of the Supreme Court show a desire to get away from it. Some writers endeavor to justify, under our constitutions, the regulation of rates by the principle of eminent domain; but this source seems far-fetched and unnecessary. It is, of course, done under the police power; but the precedent for that use of the police power is to be found in the history of English law and statutes. Thus we have noted in the Statute of Westminster I, A.D. 1275, that excessive toll contrary to the common custom of the realm was forbidden in market towns. The very phraseology of this statute indicates the antiquity of the doctrine that tolls must be reasonable; but "toll" was always a technical term, not for ordinary prices of commodities, but for a use or service which was in some way dependent upon law or ordinance. In the very opinion of Chief Justice Waite, he quotes Lord Hale, saying that the king "has a right of franchise or privilege, that no man may set up a common ferry without a prescription time out of mind, or a charter from the king," and so later he quotes Lord Hale as saying that the same principle applies to a public wharf "because they are the wharves only licensed by the king." We also found legislation fixing rents and so on in staple towns, and consequently of the charges of property owners therein, such towns having grant of a special privilege. The early law books are full of cases showing that discrimination and extortion were unlawful, even criminal, offences. And finally, as Chief Justice Waite points out, we find the rates of carriers fixed by law in 1691. Ordinary carriers, not having the right of eminent domain such as express companies, might to-day be considered to have no legal monopoly, and indeed, possibly for that reason, the regulation of charges of express companies has not yet been attempted; but in King William's time it was doubtless considered that the carriers had special privileges on the highways, as indeed they did. It seems to me, therefore, that the real reason, both logical and historical, for regulation of rates rests on the fact that the person or corporation so regulated is given a monopoly or franchise by some law or ordinance, or at least a special privilege from the State; or at least that he maintains a wharf, a bridge, or a ferry, or other avocation which (really for the same reason) has, from time immemorial, been subject to such regulation. This, indeed, has been the doctrine officially adopted by the Commonwealth of Massachusetts in its legislation--"Where monopoly is permitted, State regulation is necessary." The new "Business" Corporation Act of 1903 makes the express distinction between public-service corporations and all other private corporations for gain: it applies to "all corporations ... established for the purpose of carrying on business for profit ... but not to ... railroad or street railway company, telegraph or telephone company, gas or electric light, heat or power company, canal, aqueduct or water company, cemetery or crematory company, or to any other corporations which now have or may hereafter have the right to take or condemn land or to exercise franchises in public ways granted by the commonwealth or by any county, city, or town." The implication is that such other corporations are not given the entire freedom of action and contract conferred by this Business Corporation Act. Where the State creates a monopoly, it puts the public at the mercy of the grantee of that franchise. Therefore, it is logical and just that it should regulate the rates. The test, however, is not and cannot be, that the man is ready to serve all comers, or even that he is compelled so to do; hotel-keepers, barbers, restaurants, doctors, etc., have never had their charges regulated by law. In early days most tradesmen were compelled to serve any and all, at an equal price, under liability for damages.[1] Mills, indeed, have always been subject to have their tolls regulated; at least, a certain proportion of the grist had to go to the miller; but even if it be held they had no peculiar franchise, the exception is as old as the rule. [Footnote 1: Holmes J., _ex banco_, in United States _v_. Standard Oil Co., March 14, 1910.] It is further noteworthy that since the Granger cases themselves, there has been no extension of the doctrine of Chief Justice Waite to other trades or industries, while the extent of the doctrine, that is, the amount of regulation permissible under the Constitution, has been very much limited. Waite's opinion gives no intimation of any constitutional limit whatever, but dozens of the decisions of the Supreme Court since draw the limit this side of the point of confiscation; that is to say, at a "reasonable return," whatever that phrase may mean. It was, indeed, at first extended to semi-private grain elevators on the prairies, to elevators monopolizing the water front of Buffalo, New York, and to floating elevators in New York Harbor, the first and last of which show certainly no element of legal monopoly, while the Buffalo case at most only a geographical one. Still, elevators were the subject of Munn _v_. Illinois itself.[1] And it has never been extended to a mere _de facto_ or "virtual" monopoly arising only from the accident of trade. Moreover, in matters of interstate commerce, although it might have been argued that such affairs were left absolutely to the plenary power of Congress, which might well, if it chose, pass laws preventing any railroad from engaging in interstate business, except at a certain rate per mile for passengers or freight--or that no vessel should be allowed to carry passengers or freight from foreign countries except at a certain price per head or per ton--yet the Supreme Court seems to have held that even this plenary power over commerce expressly given to Congress in the Constitution, is limited by the ordinary property guarantees of that instrument; possibly because the Fifth Amendment is of later date than the body of the Constitution. [Footnote 1: We may divide monopolies into legal, geographical, and _de facto_, or "virtual" monopolies--phrases which sufficiently describe themselves.] We thus find that the earliest legislation regulating rates was that of the States. It was thirteen years after the Iowa statute above referred to that the Interstate Commerce Act was passed, which was supposed to give a power--afterward denied by our Supreme Court--to the Interstate Commerce Commission to fix rates. It certainly did give them power to find, upon complaint, what was a reasonable rate, which was _prima facie_ evidence in case of appeal. In hundreds of cases actual rates were complained of, in probably many more discrimination was complained of, and, according to Mr. Meyer, the commission was found by the Supreme Court to have decided rightly about half the time. In 1903 came the intelligent Elkins Bill against discrimination, which merely re-enacts the common law, and up to within two or three years has proved the only really effective measure of controlling the rates themselves. In 1906 came the Hepburn Act under Roosevelt, giving general power to the commission to fix rates upon complaint, to make joint rates, extending the statute to the oil pipe-lines, express companies, and sleeping-car companies, and going to the verge of the Constitution in an effort to provide that rates fixed by the commission should take immediate effect. So far as most recent decisions go, however, this great statute has not altered the position of the Supreme Court of the United States as to the constitutional necessity of a reasonable return to the carrier, and perhaps the cardinal question remains to be decided, whether such rate-making power is legislative, and, if so, may under the Federal Constitution be delegated by Congress to any board. Congress merely proclaims that the rates shall be reasonable and without discrimination--both mere expressions of the common law--and leaves the determination of what is reasonable between the Interstate Commerce Commission and the Supreme Court, neither of them legislative bodies. The common law may, indeed, be decided by a judicial body; but it is difficult to see why the alteration of the common law is not legislation. And this criticism applies _a fortiori_ to the Taft Bill just enacted (June, 1910), which gives the Interstate Commerce Commission power to fix rates of their own motion. When, therefore--if the author may venture to repeat his words--the commission fix a "just and reasonable" rate,[1] if they are applying the common law, their act is judicial; if they are fixing other standards, it is legislative.[2] [Footnote 1: United States Act of February 4, 1887, as amended June 29, 1906, sec. 15.] [Footnote 2: Stimson's "Federal and State Constitutions of the United States," p. 53.] Coming to the States again, this constitutional difficulty does not concern us, for it has been decided that the division of powers into legislative, executive, and judicial must, as to the States, be expressly provided in the State constitutions and is not guaranteed under the Fourteenth Amendment. Broadly speaking, the history of legislation has been as follows: The States have usually exercised their rate-making power through a railroad or corporation commission. New York and Virginia now employ the more comprehensive phrase "public service" or "corporation" commission. The Massachusetts statute, like the Granger statutes, dates from 1874. Just as we found in the Middle Ages in the case of the Black Death in times of famine, so times of panic with us have always produced radical legislation: this, it will be noted, is the year after the great panic of 1873. But the Massachusetts law, the earliest of all, did not and does not authorize any fixing of rates, or even any finding as to what was reasonable upon rates. It extends only to the other conditions of service. The statute is, perhaps, broad enough to permit such a finding as matter of opinion; but it would have no legal effect. The commission, section 15, were authorized to find that a change in rates of fares for transporting freight or passengers was reasonable and expedient, and so inform the corporation and the public, through their annual report. All the Western States, however, did give such power. As has been said, no constitutional objection has been sustained by the United States Court as to this delegation of power, if it be one; but in later years, possibly dissatisfied with the conservatism of such boards, we find drastic legislation, particularly in the West and South, fixing maximum rates, at least as to passengers (it is obviously difficult, if not impossible, to enact express legislation as to freight rates). Such legislation stands in as strong (or stronger) constitutional position, as rates made by the commission; and only fails when "confiscatory" or when in conflict with Federal legislation. Perhaps the most notable clash between the States and the Federal power has been on this subject in this very last year, where State laws have been annulled and even high State officers enforcing them restrained by injunction of Federal courts. Still, in the legislation of all States, I find as yet none overstepping the limits we have above defined as proper. The question of the _amount_ of return required by the court is, of course, a most important one. It is a difficult subject, because no fixed rule takes any account of risk to the original investment. It is all very well to say that six or eight per cent, is a fair return on invested capital, or even on "cost of reproduction"; but when, as to original promoters, the chance of even any return was as one against ten of a total loss, _fifty_ per cent. of annual profit would not be more than a "fair return"! The original Massachusetts railway legislation seems to contemplate that ten per cent. should be the normal return on railway stock, for it provides that at any time the commonwealth may purchase any or all its railroads upon the payment of the cost, plus ten per cent. a year profit. Other than in railroads, the main fixing of rates has been in illuminating gas. Many cities are permitted to legislate on this point. In New York it was decided that they might so do, provided the gas company got a fair return on its capital, not including the value of its franchise; and certainly it would seem to be the height of audacity to claim more. Much as if a boy, presented by his father with hens and the feed to support them, were to demand the capitalization of the value of all future eggs upon going out of business! In Boston, intelligent legislation was adopted--based on good mediaeval principles--which allows dividends at a sliding scale according to the price of gas to the consumer.[1] The great reason, of course, of the cessation of legislative activity on the part of the States, as to railway rates, has been that the great bulk of rates appertained to interstate commerce, or at least must be controlled by the rates of interstate commerce; so only legislation as to strictly local rates remains. [Footnote 1: It will be remembered that the very earliest Statute of Bread and Ale (1266) established such a sliding scale.] The two most important questions, aside from that of an actual extortionate rate (which has hardly ever been claimed) are that of discrimination, and of the long-and-short-haul clause, which is really a derivative of the former. We have found the principle against discrimination time-honored in the common law; but modern statutes wisely recognize that discrimination only exists when two persons or two localities are given different rates _under equivalent circumstances._ There has, therefore, been great dispute what these words, "similar circumstances and conditions," in the Federal law may mean. There is no doubt that actual differences in cost of service make dissimilar conditions; but does geographical situation, such as is recognized in the long-and-short-haul clause? or still more, the amount of business offering, or the amount of possible competition? Very early the Interstate Commerce Commission and our legislation got to the point of recognizing competition by water; but the competition of other railroads was a thing harder to recognize. Many people think they have a right to a fairly equivalent service at a fairly equivalent cost throughout the United States, and that they have a right to all the advantages of their geographical position. The farmers in Westchester County, about New York, thought they had undoubted reason to complain when the rates on milk were made the same from their farms to the city as from farms in Ohio; pointing out, indeed, that they had bought their farms originally, and paid high prices for the land, for the very reason of its geographical situation close to a great market. Yet in our courts the economic rule has usually prevailed; although no legislation, so far as I have found, recognizes such differences, except under some vague expression such as service or discrimination "under like or similar conditions." Whether legislation will ever come to the point of recognizing the railroad man's shibboleth, "charge what the traffic will bear," is perhaps dubious. And the new Taft Act, in its long-and-short-haul provision, takes a long step in the direction of geographical uniformity and rigidity of rates. A few examples of modern rate regulation may be given. In 1896 South Carolina fixed a flat passenger rate of three and one-quarter cents per mile. Both South Carolina and Virginia have empowered the railway or public service commission to fix all rates, including telephone and telegraph. Passenger rates are now usually fixed at two cents per mile in the East, or at two and one-half cents in the South or West. In 1907 Kansas and Nebraska arbitrarily reduced all freight rates fifteen per cent. on the price then charged. In 1907 there was some evidence of reaction; Alabama, in an extra session, repealed her law enacted the same year prescribing maximum freight rates, substituting more moderate rates in seven "groups" (which, however, may be changed by the railway commission!), and also enacted a statute directing the commission and the attorney-general not to enforce the earlier law; while the heavily penal Minnesota law was declared unconstitutional by the United States Supreme Court. In the British empire the power to fix rates is, of course, unquestioned; and they are, as to railways at least, generally regulated by law. Canada in 1903 established a railroad commission, and Nova Scotia in 1908 imposed various restrictions as to tolls, still the English word for rates. So in Ontario and Quebec in 1906, and in Tasmania in 1901. In many States, such as Victoria, the railways are owned by the state, in which case, of course, no question as to the right to fix rates can arise. IX TRUSTS AND MONOPOLIES Legislation against combinations of properties to bring about monopoly, or contracts in restraint of trade, is the last field of legislation we have to consider in connection with property, and possibly in the public mind the most important. Although the law against combinations of laborers rests upon much the same principles, it is perhaps best to give a special chapter to combinations of property, leaving labor combinations to be treated in that special connection. The matter has been written up so voluminously that it might be difficult to say anything new upon the subject, yet for that very reason it may be as well to analyze it into its simplest elements at the common law, and then trace its recent development in our somewhat unintelligent statute-making. At common law, then, these obnoxious acts may be analyzed into five definite heads: forestalling, regrating, and engrossing--which have been thoroughly defined in an earlier chapter and the modern form of which in modern language might be called restraining production or fixing prices, the buying and selling of futures or gambling contracts, and cornering the market--restraint of trade, and monopoly. The broad principles, however, upon which the gravamen of even these first three rests, is restraint of trade, which was always obnoxious at the common law. Contracts in restraint of trade, except such reasonable contracts as partnership, or the sale of a business with condition not to engage in the same trade in a certain limited locality or for a certain, limited time, have always been void at the common law. They are not, however, criminal except by statute, though a combination in restraint of trade, etc., was always so. We found many such statutes as we also found laws which gave a penalty in double or treble damages to the person injured by such combination or contract. The great case of monopolies, reported in full in the seventh volume of the State Trials, is a perfect mine of information on this subject, having been argued many months at great length by the greatest lawyers, three of whom later were chief-justices of England. This is not the case of the playing cards, Darcy's case, commonly called the "Monopoly Case," which is briefly reported in Coke and covers a far narrower subject, the royal grant for a monopoly in the importation (not manufacture or sale) of playing cards, presumably because Coke's reports are far more accessible than the somewhat rare editions of the State Trials; but the great case brought by the British East India Company against one Sandys, the loss of which would have forfeited its charter and its business, and possibly put an end to British dominion in the East. Its charter dated from the early years of Charles II and the 43d Elizabeth. It brought suit against the defendant, who freighted a vessel to East Indian ports. Mention in it is made of a charter to the Muscovy Company as early as Philip and Mary, a much earlier date than is elsewhere assigned to trading corporations. Hundreds of cases of unlawful monopolies are cited, among them the case of the tailors of Norwich, where a combination to work only for certain wages and to advise others not to work for less and to prevent such others from getting employment with their own employer, was held a conspiracy and an attempt to gain a monopoly at the common law. Another case, of one Peachy, who had by royal grant an exclusive right to sell sweet wine in London, was held to disclose an odious monopoly at common law and the king's franchise void. In the opinion of the writer, had this common law been thoroughly remembered and understood by our bench and bar, to say nothing of our legislatures, very little anti-trust legislation by the States would have been necessary except, again, of course, to affix modern penalties to such offences. There has, however, been a vast amount of such legislation. In so far as such legislation has embodied the common law, it has stood the test of the courts and been of some value in repressing objectionable trusts or contracts. In so far as it has gone beyond the common law, it has often proved futile and still more often been declared unconstitutional by the courts. To the five principles of the common law set forth above we have, perhaps, added two new ones. Besides fixing prices, limiting outputs, cornering the market, contracting in restraint of trade, and acting or contracting with the purpose of gaining a monopoly--all of which were objectionable at common law--we have legislated in some States against the securing of discriminatory railway rates for the purpose of establishing a monopoly, and against what we have termed "unfair competition"--that being generally defined to be the making of an artificially low price in a certain locality for the purpose of destroying a competitor, or the making of exclusive contracts; that is to say, refusing to deal with a person unless he binds himself not to deal with anybody else. This last thing can hardly, however, be said to add to common-law principles. Nevertheless, some of the newer State anti-trust statutes prescribe it so definitely that it may be treated as a modern invention. All this legislation is extremely recent. In the writer's digest of "American Statute Law," published in 1886, I find no mention of trusts in this modern sense, though a special chapter is given to them in volume II, published in 1892. The first legal writing in which the word was used and the rise of the thing itself adverted to is, so far as I know, a contribution to the _Harvard Law Review_, entitled Trusts, vol. I, page 132; but the trust then had in mind was the simple early form of the railway equipment trust said to have been invented in Pennsylvania, which was indeed copied in the first agreement, so long kept secret, of the Standard Oil Trust; and also the corporate stock trust, that is to say, the practice then beginning of persuading stockholders to intrust a majority of the capital stock of the corporation into the hands of trustees, receiving in return therefor trust certificates, with a claim to the net earnings of the corporation, but without real voting power; and there are cases in which such trusts were sought to be held invalid and enjoined in equity, sometimes with and sometimes without success. Before going into the details of anti-trust legislation, it would be well to sketch its history on the broadest possible lines. Legislation began first in the States some years before the Federal Anti-trust Law, or Sherman Act, first enacted in 1890. These earlier statutes, including the Sherman Act itself, made illegal all contracts or combinations between persons or corporations in restraint of trade; and their direct result was to compel the formation of the gigantic modern trust as we now understand it. Had the Sherman Act, instead of being called "An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies," been entitled "An Act to Compel the Formation of Large Trusts by all Persons Engaged in Similar Lines of Business," it would have been far more correctly described in its title. For whereas, before this act persons or corporations could make contracts or arrangements among themselves which were good and valid working agreements unless so clearly monopolistic as to be held unreasonable restraint of trade at the common law (which, indeed, so far as I know, was never done in any American court), after the Sherman Act was passed all such contracts, combinations, or arrangements, even when reasonable and proper, were made illegal and criminal. The only escape, therefore, was to bring all such persons and corporations in the same trade together in one corporation, and this is precisely what we now term a trust. Before 1890, in other words, a trust was really an agreement, a combination of individuals or corporations usually resting upon an actual deed of trust under which the constituent parties surrendered their property or the control of their property to a central board of trustees; since 1890 this kind of trust has practically disappeared and been replaced by the single large corporation, either a holding company which holds the stock of all constituent companies, or under still more modern practice, because more likely to stand the scrutiny of the courts, a huge corporation, with a charter given by the liberal laws of New Jersey, West Virginia, or other State, which actually holds, directly, all the properties and business of the constituent corporations or persons. The modern question, therefore, has become really the question of the large corporation, its regulation and its control; further complicated, of course, by the fact that hitherto there has been no power to control such large corporations except the very State which creates them, which is usually quite indifferent to their acts so long as they pay the corporation tax. It is therefore a question not only of the large corporation, but of the powers of the States over each other's corporations and of the Federal government over all. Until the Northern Securities case, it was probably supposed that a corporation, being an individual, could not be guilty of a criminal conspiracy, and consequently could not in itself offend against the anti-trust acts. That case, and more recent decisions still, show a disposition of the courts to look behind the screen of the fictitious entity of the corporation to the merits and demerits of the persons making it up, and the objects with which they came together and the methods they continued to use. The Federal statute was indeed necessary to this extent, that, although the common law was unquestioned, as there is no Federal common law in the absence of statute, and as interstate commerce cannot be controlled by State law, either common or statute, it was necessary for Congress to declare that the principles of the common law should apply to interstate commerce. It was also doubtless wise to remind the public of the existence of this body of law and to affix definite prohibitions and penalties. To this extent the anti-trust legislation, both State and Federal, is fully justified. Nevertheless, it is noteworthy that the older States, where both the legislatures and the bar had presumably a higher degree of legal education, rarely found it necessary to enact statutes against trusts. There has never been, for instance, any anti-trust law in Massachusetts or in Pennsylvania, or for a long time in New York, for the first statute of that State against trusts was made intentionally futile by being applied only to a trust which secured a complete--_i.e._, one hundred per cent.--monopoly of its trade. The economic consideration of all such legislation we do not propose to consider; whether it was wise to forbid all forestalling, for instance--which at the common law meant buying at a definite distance as well as at a distant time; that is to say, a person who bought all the leather in Cordova was guilty of forestalling as well as the person who bought all the sherry that was to be made in Spain in the ensuing year--what we call the buying of futures. This is certainly very unpopular, and we find most of our States legislating against it; yet, of course, many economists argue that it is only by allowing such contracts that the price of any article can be made stable and a supply stored in years of plenty against years of famine. The first historical example of forestalling and engrossing is to be found in the book of Genesis. Joseph was not, I believe, a regrator, but he was one of the most successful forestallers and engrossers that ever existed, and made a most successful corner in corn in Egypt; and his case is cited as a precedent in the Great Case of Monopolies above mentioned. James C. Carter tells us[1] that all these laws are contrary to modern principles and were repealed a century ago. I cannot find that such is the case. On the contrary, they were made perpetual in the thirteenth year of Elizabeth, and we find perfectly _modern_ trust legislation as early as Edward I, in 1285. In 1892 I find legislation already in nineteen States and Territories; North Dakota, indeed, having already a constitutional provision. Three States at least, Kansas, Michigan, and Nebraska, seem to have been before the Federal Act, their laws dating from 1889; while several States have statutes in 1890, the year in which the Sherman Act was enacted. There has hardly a year passed since without a good many statutes aimed against trusts, though they have shown a tendency to decrease of late years, and it is especially noticeable that anti-trust legislation is apt to cease entirely in the years following a panic, as if legislatures had learned the lesson that too much interference is destructive of business prosperity; I find that by 1908 just about half the States had embodied a prohibition of trusts in their organic law.[2] [Footnote 1: "Law, Its Origin, History, and Function," N.Y., 1907.] [Footnote 2: These provisions will be found digested in the writer's "Federal and State Constitutions," pp. 339-341.] One of the principal earlier objects of the trust was to evade the corporation law. To-day they specially aim at becoming a legal corporation. In like manner their earliest object and desire was to escape all Federal supervision and interference by legislation or otherwise; to-day they are desirous of such regulation under Federal charters, for the purpose of escaping the more multifarious and radical law-making of the forty-six different States. Before the Industrial Commission in 1897-1900, all the heads of the great "trusts"--Rockefeller, Archbold, Havemeyer--testified in favor of Federal incorporation; almost all other witnesses, except one or two New York or New Jersey corporation lawyers, against it. In the article in the _Harvard Law Review_, above referred to, the writer suggested that the evil might be cured by compelling trusts to organize as corporations, thereby bringing them under the regulation and control that the State exercises over corporations. That has come to pass, but the remedy has not seemed adequate. In the early Sugar Trust case, the New York Supreme Court decided that combinations to sell through a common agent, thereby, of course, fixing the price, with other common devices for controlling the market and preventing competition, were illegal at the common law; and also that a corporation which, in order to bring about such a combination, put all its stock in the hands of trustees or a holding company, thereby forfeited its charter, the only result of which decision was to drive the Sugar Trust from its New York charters to a legal organization in the State of New Jersey. It is noteworthy that one or two of the most obvious remedies for this condition of things have never been employed, possibly because they would be too effective. That is to say, there might be legislation that a corporation should not act out of the State chartering it--that a New Jersey corporation, holding no property and doing no business in New Jersey, should not be used to carry on business in New York. We also might have legislated, going back to the strict principles of the common law, to forbid any corporation, any artificial body, from holding shares in another corporation. It is doubtful, to-day, whether this can be done under the common law, and the authors of the Massachusetts corporation law refused expressly to provide for it; on the other hand the proposed Federal Incorporation Act expressly validates it. We do, however, begin to see some legislation on this line of approach, notably in the case of competing companies, several Western States at least having statutes forbidding a corporation from holding stock in such companies; and it was one of the recommendations of President Taft's recent message, at least as to railroad companies not holding half of such stock. It will well repay us now to make a careful study of all these anti-trust statutes, for the purpose of seeing whether they have introduced any new principles into the law, and also in what manner they express the old. Up to two or three years ago one might have said that not a single case had been decided in the courts of any State or of the Federal government against trusts or combinations, which might not have been decided the same way under common-law principles had there been no anti-trust legislation whatever. As is well known, the great exception to this statement is the interpretation of the Federal Act by the Supreme Court of the United States, declaring that any contract in restraint of trade was unlawful under it, although it would have been reasonable and proper at the common law. Later indications are, as President Taft has said, that the courts will see a way to modify this somewhat extravagant position by reintroducing the common-law test, viz.: Whether the contract is done with the _purport_ (or effect) of making a monopoly for destroying competition, or whether such result is trivial and incidental to a reasonable and lawful business arrangement. The earliest statutes, those of Michigan, Kansas, and Nebraska, in 1889, denounce the following principles: "All contracts, agreements, understandings, and combinations ... the _purpose_ or object of which shall be to limit or control the output, to enhance or regulate the price, to prevent or restrict free competition in production or sale." This, the Michigan statute, merely states the common law, but goes on to declare such contract, etc., a criminal conspiracy, and any act done as part thereof, a misdemeanor, and, in the case of a corporation, subjects it to forfeiture of its charter. The law makes the exception, nearly universal in the Southern and Western States, that this anti-trust legislation shall not apply to agricultural products, live stock in the hands of the producer, nor to the services of laborers or artisans who are formed into societies or trades-unions--an exception which, of course, makes it class legislation, and has caused the whole law to be declared unconstitutional, so far as I know, by the highest court of every State where it has been drawn in question, and under the Fourteenth Amendment also by the Supreme Court of the United States; and in this spirit President Taft has just acted in preventing a joint resolution of Congress appropriating money to prosecute trusts from exempting labor unions. The Kansas statute is substantially like the Michigan, but more vague in wording (Kansas, 1889, 257). It denounces arrangements, contracts, agreements, etc., which (also) _tend_ to advance, reduce, or control the price or the cost to the producer or consumer of any productions or articles, or the rate of insurance or interest on money or any other service. The Maine law (Maine, 1889, 266, 1) is aimed only against the old-fashioned trust; that is to say, the entering of firms or incorporated companies into an agreement or combination, or the assignment of powers or stock to a central board, and such trust certificates or other evidences of interest are declared void. The Alabama statute of 1891 is to similar effect. The Tennessee statute of 1891 is about the same as the Kansas statute of 1889, above referred to, except that it adds the words "which tend in any way to create a monopoly," and the Kansas statute makes trust certificates unlawful, that being still the usual way of organizing a trust at that time. The Nebraska law (Nebraska, 1889, 69) is much the same, except that it also denounces combinations, etc., whereby a common price shall be fixed and whereby any one or more of the combining parties shall cease the sale or manufacture of such products, or where the products or profits of such manufacture or sale shall be made a common fund to be divided among parties to the combination, and goes on to add that "pooling between persons, partnerships, corporations ... engaged in the same or like business for any purpose whatever, and the formation of combinations or common understanding" between them is declared unlawful, and the persons are made liable for the full damage suffered by persons injured thereby, and each day of the continuance of any such pool or trust shall constitute a separate offence; this, the doctrine of a continuing conspiracy, being for the first time before the Supreme Court of the United States at the time of writing. North Carolina the same year (N.C., 1889, 374) defines a trust to be an arrangement, understanding, etc. for the purpose of increasing or reducing the price beyond what would be fixed by natural demand, and makes it a felony with punishment up to ten years' imprisonment. Here for the first time appears a statute against unfair competition. "Any merchant, manufacturer ... who shall sell any ... goods ... for less than actual cost for the purpose of breaking down competitors shall be guilty of a misdemeanor." Tennessee the same year (Tennessee, 1899, 250) in its elaborate statute, which is a fairly good definition of the law, also denounces throwing goods on the market for the purpose of creating an undue depression, whatever that may mean. In the next year, 1890, there were many more State statutes, but we should first notice a simple law of New York forbidding any stock corporation from combining with any other corporation for the prevention of competition (N.Y., 1890, 564, 7). The usual statute in other States of that year is addressed against combinations to regulate or fix prices or limit the output, but Texas (4847a, 1) and Mississippi (1890, 36, 1) have elaborate laws, which, however, add hardly any new principles to the common law. They define a trust to be a combination of capital, skill, or acts, by two or more persons or corporations, (1) to create or carry out restrictions in trade; (2) to limit or reduce the output, or increase or reduce the price; (3) to prevent competition; (4) to fix at any standard or figure whereby its price to the public shall be in any manner controlled, any article intended for sale, etc.; (5) to make or carry out any contract or agreement by which they are bound not to sell or trade, etc., below a common standard figure, or to keep the price at a fixed or graduated figure, or to preclude free or unrestricted competition among themselves or others, or to pool or unite any interest. To much the same effect is the statute of South Dakota (1890, 154, 1), but it also denounces any combination which tends to advance the price to the consumer of any article beyond the reasonable cost of production or manufacture. The Louisiana (1890, 36) and New Mexico laws (1891, 10) are aimed particularly at attempts to monopolize, while the Oklahoma statute (6620) was aimed only at corporations, and the broad wording of the Federal act passed this year should be noted: "Every contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States or with foreign nations, is hereby declared to be illegal" (U.S., 1890, 647, 1); and in the second section: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty under this act." And in the third section: "Every person who shall make any such contract, or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor." The rest of the legislation provides penalties, manner, and machinery for the enforcement of these laws by prosecuting attorneys, etc., with a usual allowance to informants; and it may be here noted that one great trouble has resulted from this machinery, for it provided injunction remedies and dissolution, which may well be too severe a penalty, and, furthermore, dispenses with a jury and throws unnecessarily upon the court--even now, as in the Standard Oil case, a distant high court of appeal--the burden of determining a complicated and voluminous mass of fact. Our ancestors never would have suffered such matters to be adjudged by the Chancellor! South Dakota has an extraordinary statute making the agents for agricultural implements, etc., guilty of a criminal offence when their principals refuse to sell at wholesale prices to dealers in the State (S.D., 1890, 154, 2). But beside these remedies, there is a frequent statute dating from the earliest Kansas act of 1889, that debts for goods sold by a so-called trust, contracts made in violation of the law, will not be enforced in favor of the offending person or corporation. That is to say, the person buying the goods of a trust may simply refuse to pay for them; and the constitutionality of this legislation has recently been sustained by a divided opinion in the Supreme Court of the United States.[1] The possession or ownership of trust certificates is in some States made criminal. Corporations offending against the statute are to have their charters taken away, or, if chartered in other States, to be expelled from the State. All contracts or agreements in violation of any of these statutes are, of course, made void. [Footnote 1: Continental Wall Paper Co. _v_. Voight, 212 U.S. 227.] There are special statutes in Kansas, Nebraska, and North Dakota against trusts in certain lines of business, as, for instance, the buying or selling of live-stock or grain of any kind. In the twenty years that have elapsed since this early legislation there has been considerable clarifying in the legislative mind; modern statutes, and especially constitutional provisions, stating the offence much more concisely, with a simple reliance upon the common law, leaving it, in other words, for the courts to define. The Southern State constitutions generally enact that the legislatures shall enact laws to prevent trusts. New Hampshire says: "Full and fair competition in the trades and industries is an inherent and essential right of the people, and should be protected against all monopolies and conspiracies which tend to hinder or destroy." Oklahoma provides that "the legislature shall define what is an unlawful combination, monopoly, trust, act, or agreement, in restraint of trade, and enact laws to punish persons engaged in any unlawful combination, monopoly, trust, act, or agreement, in restraint of trade, or composing any such monopoly, trust, or combination." In Wyoming, monopolies and perpetuities, in South Dakota and Washington, monopolies and trusts, are "contrary to the genius of a free State and should not be allowed." The constitutional provisions of North Dakota, Minnesota, and Utah are again a mere repetition of the common law. The New Hampshire statute grants "all just power ... to the general court to enact laws to prevent operations within the State of ... trusts ...," or the operations of persons and corporations who "endeavor to raise the price of any article of commerce or to destroy free and fair competition ... through conspiracy, monopoly or any other unfair means to control and regulate the acts of all such persons." This last clause, though a clear statement of the common law, would, of course, render hopeless Mr. Gompers's crusade in favor of the boycott, the object of a boycott invariably being to control the acts of somebody else. Alabama directs the legislature to provide for the prohibition of trusts, etc., so as to prevent them from making scarce articles of necessity, trade, or commerce, increasing unreasonably the cost thereof, or preventing reasonable competition; and to much the same effect in Louisiana. We may well close this brief survey by a study of the volume of such legislation. We have, for instance, in 1890, seven anti-trust laws; in 1891, six; in 1892, one; in 1893, eight. In 1894, doubtless as a consequence of the panic, anti-trust legislation absolutely ceased, and in 1895 there is only one law, passed by the State of Texas, its old law having been declared unconstitutional. In 1896, under the influence of President Cleveland's administration, we find four such statutes, and in 1897, with reviving prosperity, thirteen. Still, we find no new principle, except, indeed, the somewhat startling statement in Kansas that it is unlawful to handle goods made or controlled by monopolies. The Illinois statute of that year permitted combinations as to articles whose chief cost is wages when the object or effect is to maintain or increase wages, a qualification which led to the whole law's being declared unconstitutional. In Tennessee there is a special statute penalizing combinations to raise the price of coal, a statute with good old precedents in early English legislation. By this time most of the States had adopted anti-trust statutes. In 1898 we find only one law, that of Ohio, giving the same five-fold definition of the trust that we found above in Alabama, but it adds the somewhat startling statement that "the character of the combination may be established by proof of its general reputation as such," and again it is made criminal to own trust certificates, with double damages in all cases to persons injured. A constitutional lawyer might well doubt whether a conviction under the last half of this statute would be sustained. In 1899 eleven of the remaining States adopted anti-trust laws. In 1900 there is a new statute in Mississippi prohibiting, among other things, the pooling of bids for public work, this again being a mere statement of the common law, although a law which has possibly grown uncommon by being generally forgotten. In 1901 there are four statutes, that of Minnesota also including a prohibition of boycotts, and the first piece of legislation upon the subject in the old Commonwealth of Massachusetts--an ordinary statute against exclusive dealing; that is to say, the making it a condition of the sale of goods that the purchaser shall not sell or deal in the goods of any other person. In 1902 both the Georgia and Texas laws were declared unconstitutional because they exempted agricultural pursuits. South Carolina has a statute actually prohibiting any sale at less than the cost of manufacture, doubtless also unconstitutional. In Ohio corporations are forbidden to own stock in competing companies. The Illinois anti-trust act was declared unconstitutional in 1903, while Texas amended its statute to meet the constitutional objection, and followed South Carolina in prohibiting the sale of goods at less than cost. In 1904 there is no anti-trust legislation. In 1905 the South Carolina law is held unconstitutional, and in 1906, that of Montana. In 1907, however, under the Roosevelt administration, there was a decided revival of interest, seventeen States adopting new statutes or amendments, but still I can find no new principles. Kansas copies the Massachusetts statute, and Massachusetts extends it to the sale or lease of machinery or tools. Minnesota and North Carolina have interesting statutes prohibiting discrimination between localities in the sale of any commodity. Most of the States by this time have statutes compelling persons to give testimony in litigation about trusts and exempting them from prosecution therefor. North Dakota has also a statute prohibiting unfair competition and discrimination as against localities, while Tennessee makes it a misdemeanor to sell any article below cost or to give it away for the purpose of destroying competition. In 1908 Louisiana and Mississippi adopted the principle forbidding discrimination against localities, and the new State of Oklahoma comes into line with the usual drastic anti-trust statute, and we may, perhaps, conclude this review of a somewhat unintelligent legislative history by perhaps the most amusing example of all. The Commonwealth of Massachusetts, which had so far refrained from unnecessary legislation on this great question, thought it necessary to adopt a statute making void contracts to create monopolies in restraint of trade, which well shows the necessity of a legislative reference bureau or professional draftsman, as discussed in a later chapter. That is to say, it says literally: "Every contract, etc., in violation of the common law ... is hereby declared to be against public policy, illegal, and void." As the law of Massachusetts is the common law, and always has been the common law, this amounts to saying that a contract which has always been void in Massachusetts is now declared to be void. But, moreover, on a familiar principle of hermeneutics, it might be argued to repeal the whole _criminal_ common law of restraint of trade--doubtless the last thing they intended to do! As this is a book upon actual legislation, it would be out of place to attempt a serious discussion of the problem that lies before us. Suffice it to say that there are three possible methods of approaching the question, as it is complicated with the interstate commerce power of the Federal government. That is to say, either to surrender this power to the States, at least so far as it may be necessary to enable them to regulate or prohibit the actions of combinations in the States, even when engaged In interstate commerce; or, second, by perfecting the present dual system and establishing Federal supervision over State corporations engaged in interstate commerce by way of license and control; or, third, the most radical remedy of all, apparently adopted by the present administration, of surrendering entirely the State power over corporations to the Federal government, at least as to such corporations as might choose to take advantage of such legislation. This would result in a centralization of nearly all business under the control of the Federal government, as well as the removal of the great bulk of litigation from State to Federal courts. If not carefully guarded it would deprive the States not only of their power to tax corporations, but of their ordinary police powers over their administration. Such a radical step was unanimously opposed by the United States Industrial Commission in 1900, and by nearly all their expert witnesses, and was then, at least, only favored by the heads of the great trusts, Mr. Archbold, Mr. Rockefeller, and Mr. Havemeyer.[1] But whichever way we look at it, there is no question that the problem of the modern trust is that of the corporation, both as to what laws shall regulate such a corporation, and whether they shall be acts of Congress, or State statutes, or both. [Footnote 1: For the full arguments on this most important question, the reader may be referred to the article by Horace L. Wilgus in the _Michigan Law Review_, February and April, 1904, and to the writer's debate with Judge Grosscup, printed in the _Inter-Nation Magazine_ for March, 1907.] X CORPORATIONS The earliest trading or business corporation in the modern sense now extant seems to have been chartered in England about the year 1600, though Holt in the monopoly case dates the Muscovy Company from 1401, and, despite the Roman civic corporations, has really no actual precedent in economic history; that is to say, as a phenomenon under which the greater part of business affairs was in fact conducted. Whether derived historically from the guild or the monastic corporation of the Middle Ages is a question merely of academic importance, for the business corporation rapidly became a very different thing from either; and, indeed, its most important characteristic, that of relieving the members of responsibility for the debts of the corporation, is an invention of very modern times indeed, the first statute of that sort having been invented in the State of Connecticut, enacted in May, 1818. These early English corporations, such as the Turkey Company, the Fellowship of Merchant Adventurers, chartered in 1643, or the Hudson Bay Company, usually gave a monopoly of trade with the respective countries indicated, such monopolies in foreign countries not being considered obnoxious.[1] The wording of such early charters follows substantially the language of a town or guild charter, and was doubtless suggested by them. Unfortunately, it has never been the custom to print corporation charters in the Statutes of the Realm, and it is practically impossible to get a sight of the original documents if, indeed, in many cases, they now exist. So far as I have been able to study them, they always give the right to transfer shares freely, with the other great right, perpetual succession; but no notion appears, for at least two centuries, that the shareholders are relieved from any of the legal obligations of the corporation. [Footnote 1: The charter of the East India Company was attacked on this ground and successfully defended by Holt on the ground that the common law did not mind monopolies in trade with heathens!] In order to understand this whole problem it is necessary to bear in mind certain cardinal principles of our constitutional law. All corporations, with the exception of national banks, two or three railroad companies, and the Panama Canal, have been and are creatures of the State, not, as yet, of the Federal government, which can only create them for purposes specifically delegated to it and not merely for private profit. The power to create corporations is essential to sovereignty, and the sovereign may decline to recognize all but its own corporations. Under the doctrine of comity, such corporations can act in any other State with all the powers given them in the State where they are created, except only they be expressly limited by a statute of such other State. They may, however, be entirely excluded; only not to the destruction of property rights once acquired. On the other hand, corporations conducting interstate commerce may not be excluded or such business interfered with by State legislation. The writer was for four years counsel to the Industrial Commission at Washington and one of the commissioners appointed to draw the present business corporation law of Massachusetts. In both such capacities he had the advantage of hearing the expert opinions of many witnesses. There were two, and only two, broad theories of legislation about private business corporations: One view, the older view, that they should be carefully limited and regulated by the State at every point, and that their solvency, or at least the intrinsic value of their capital stock, should, as far as possible, be guaranteed by legislation, to the public as well as to their creditors and stockholders; and that for any fraud, or even defect of organization, the stockholders, or at least the directors, should be liable. On the other hand, the modern view, that it was no business of the public to protect investors, or even creditors, and that the corporations should be given as free a hand as possible, with no limitation as to their size, the nature of business they are to transact, or the payment in of their capital stock. This is the corporation problem. The State-and-Federal problem may be called that other difficulty which arises from the clashing jurisdictions of the States among themselves and with the Federal government, their laws and their courts, as to the corporations now created, particularly railroads and corporations "engaged in interstate commerce" which may include all the "trusts," if the mere fact that they do business in many States makes them so. Suppose you had a world where one man in every ten was gifted with immortality and with the right not to be answerable for anything that he did. You can easily see that the structure of society, at least as to property, labor, and business affairs, would be very decidedly altered. Yet this is what really happened with the invention of the modern corporation; only we have got completely used to it. It would be possible to have got on without any business corporations at all. Striking as this may seem at first thought, one must remember that the world got on very well without corporations for thousands of years, and that it was by a mere historical accident and a modern invention that the two great attributes of the corporation, immortality and personal irresponsibility, were brought about. All business might still be conducted, as it was in the Middle Ages, by individual men or by partnerships, and still we should have had very great single fortunes like that of Jacques Coeur in France, an early prototype of Mr. J. Pierpont Morgan, or even vast hereditary fortunes kept in one family, like the Fuggers of Augsburg, and based on a natural monopoly--mineral salt--as is Mr. Rockefeller's upon mineral oil. Yet as lives are short and abilities not usually hereditary, the great corporation question of to-day would hardly have arisen. Nevertheless, it is presumed that no one, not even the greatest radical, would now propose to dispense with the invention of the business corporation with limited liability. A careful discussion of the two theories above referred to will be found in pages 1 to 28 of the report of the Committee on Corporation Laws to the legislature of Massachusetts, of January, 1903. The bill for a business corporation law recommended by this committee was enacted into law without substantial change, and has apparently been satisfactory in the six years it has been in force, as the amendments to it, except only as to the system of taxation of corporations, have been few and trifling. I venture to quote from the report referred to a few of the remarks of the commissioners upon the general question, as it is now out of print: The investigations of the committee, the results of which have been briefly summarized, have led to the following conclusions: _First_.--That the more important provisions of the present law regulating the organization and conduct of business corporations and the liability of its stockholders and officers are unsuited to modern business conditions. _Second_.--That the restrictions governing capitalization and the payment of stock as shown in the piecemeal legislation enlarging the classes of corporations which may organize under general laws are arbitrary or impossible of execution. _Third_.--That it is a general practice to organize under the laws of other States corporations to carry on enterprises which are owned and managed by citizens of Massachusetts, particularly where a part or all the property is situated outside the State. THEORY OF LEGISLATION RECOMMENDED The history of corporations, as well as the logic of the case, shows that there are possible two general theories as to the State's duty in creating corporations: first, the old theory that, being creatures of the State, they should be guaranteed by it to the public in all particulars of responsibility and management; and the modern quite opposite theory that, in the absence of fraud in its organization or government, an ordinary business corporation should be allowed to do anything that an individual may do. Under the old theory the capital stock of a corporation was, in the law, considered to be a guarantee fund for the payment of creditors, as well as affording a method of conveniently measuring the interests of the individual owners of a corporate enterprise. There resulted from this principle not only the fundamental proposition that the capital stock, being in the nature of a guarantee fund, should be paid up at its full par in actual cash, but all the other provisions to protect creditors or other persons having dealings with the corporation; such as, that the debts of a corporation should not exceed its capital stock--designed primarily in the interest of creditors and secondarily in that of the stockholders, who were looked after as carefully as if they were the wards of the State when dealing in corporation matters. Under the modern theory, the State owes no duty, to persons who may choose to deal with corporations, to look after the solvency of such artificial bodies; nor to stockholders, to protect them from the consequences of going into such concerns, the idea being that, in the case of ordinary business corporations, the State's duty ends in providing clearly that creditors and stockholders shall at all times be precisely informed of all the facts attending both the organization and the management of such corporations, and particularly that there should be full publicity given to all details of the original organization thereof. The committee has had little hesitation in determining which of these theories it should adopt. The limit of capitalization both in amount and in valuation to the net tangible assets of the corporation has unquestionably had much to do with the arrest of corporate growth in this commonwealth. Good-will, trade-marks, patents may unquestionably be valuable assets, which, under our present method, may not be capitalized. Admirable as this theory may have been, of payment of capital stock in full in cash, the condition is so easily avoided in practice that the result is that our existing law promises a protection which, in reality, it does not afford, and is merely an embarrassment to those who feel obliged to comply not only with the letter but with the spirit of the law. It is no longer true that persons dealing with corporations rely upon the State laws to guarantee their solvency or their proper management. The attempts of the commonwealth to do so by laws still remaining on its statute books result, as we apprehend, only in a false sense of security; and we believe that the act proposed, while giving up the attempt to do the impossible thing, will really, by its greater attention to the details of organization required to be made public by all corporations, result in an advantage to stockholders and creditors more substantial than the present partial attempt to enforce a principle impossible of complete realization and which is, under existing laws, easily evaded. It is impossible to reconcile or combine the two systems. Either the old theory must be maintained, under which the State attempts though vainly to guarantee both to stockholders and creditors that there is one hundred dollars of actual value behind each one hundred dollars of par value of capital stock, or some other system must be adopted which, while not being chargeable with the vagueness and laxity of the newer legislation of other States, will permit a share of capital stock, although nominally one hundred dollars in value, to represent, as the word implies, only a certain share or proportion, which may be more or less than par, of whatever net assets the corporation may prove to have. Under a system of this sort the State machinery will only provide that the stockholders and, perhaps, the creditors, may at all times have access to the corporation records or returns in such manner as clearly to show, both at organization and thereafter, all of the property or assets of which such share of capital stock actually represents its proportion of ownership. The question of monopoly the committee does not conceive to have been left to its consideration. The limitations now existing on the capitalization of business corporations are, no doubt, attributable to the sentiment which has always existed against monopoly, but it is clearly the policy of the commonwealth, as shown in its recent legislation, to do away with the attempt to prevent large corporations, simply because they are large. Moreover, it is apprehended that the question of monopoly, or rather of the abuse of the power of large corporations, does not result necessarily from the size of corporations engaged in business throughout the United States. In the opinion of the committee, some confusion has been created, in the discussion of the form of so-called trust legislation, by a failure to appreciate that its real object is not to protect the investor, who can or should learn to take care of himself, or the creditor who has already learned to do so. The real purpose of such legislation is the protection of the consumer. In other words, there is no reason for an arbitrary limitation of capitalization unless it can be used as a means of creating a monopoly which will influence the price of commodities. In the opinion of the committee, the question of capitalization is not a contributing factor in the fight for a monopoly. The United States Steel Company would have no greater and no less a monopoly of the steel business if it were organized with one-half of its present capitalization. The Standard Oil Company has a very conservative capitalization, and yet it is the most complete monopoly of any industrial corporation in this country. It has not been the intention of the committee to draft a law which will be favorable to the organization of large corporations popularly known as "trusts." Inasmuch as the recommended law requires taxes to be paid upon the full value of the corporate franchise, which is, at least to some extent, measured by the amount of capitalization, there will always be this very potent reason for keeping capitalization at the lowest possible point. Indeed, it is apprehended that the organization of a corporation large enough to control a monopoly of any staple article is practically prohibited by the provisions of the recommended law as to taxation, which will be referred to in greater detail in part II of this report. At all events, it is no better for the State to leave its citizens at the mercy of the large corporations created by other less careful sovereignties, than to permit the organization of corporations adequate to the demands of modern business under its own laws, subject to its own more careful regulation and control. Under our State and Federal system it is practically impossible for any one State, by its own laws, to control foreign corporations, but so far as possible at present the committee has sought to subject them to the same safeguards of reasonable publicity and accurate returns, both as to organization and annual condition, as the State requires of its own corporations. The simple requirement of an annual excise tax, based on the capitalization of such foreign corporations, will serve to bring them under the control of this State and the way will be open for their further regulation if desirable. This annual tax has been levied upon the same principle as the corresponding tax paid by home corporations. The State should impose no greater burden on foreign corporations than on its own, but should, so far as possible, subject them to its own laws. The recommendations of the committee have, therefore, been controlled by three principles, which may be summarized as follows: _First_.--The relation of the State to the corporation. The committee would repeat its opinion that, so far as purely business corporations are concerned, and excluding insurance, financial and public service corporations, the State cannot assume to act, directly or indirectly, as guarantor or sponsor for any organization under corporate form. It can and should require for itself and for the use of all persons interested in the corporation, the fullest and most detailed information, consistent with practical business methods, as to the details of its organization, the powers and restrictions imposed upon its stockholders and as to the property against which stock is to be or has been issued. Provision is, therefore, made in the law drafted by the committee for the organization of such corporations for any lawful purpose other than for such purposes as the manufacture and distilling of intoxicating liquors or the buying and selling of real estate which it has been the consistent policy of the commonwealth to except from incorporation under the general law. Any desired capitalization above a minimum of one thousand dollars may be fixed. Capital stock may be paid for in cash or by property. If it is paid for in cash, it may be paid for in full or by instalments, and a machinery has been created for protecting the corporation against the failure of the subscribers to stock to pay the balance of their subscriptions. If stock is paid for by property, the incorporators and not the State are to pass upon its value. Before any stock, however, can be issued for property, a description of the property sufficient for purposes of identification, to the satisfaction of the Commissioner of Corporations, must be filed in the office of the Secretary of the Commonwealth. This document becomes a public record and may be consulted by any one interested in the corporation. If the officers of a corporation make a return which is false and which is known to be false, they are liable to any one injured for actual damages. If a full and honest description is made of property against which stock is issued, a stockholder cannot complain because of his failure to inform himself by personal examination or investigation of the value of the property in which he is, or contemplates becoming, an investor. _Second_.--Duties of the State in regulating the relations between the corporation and its officers and stockholders. The second principle upon which the committee has acted in its specific recommendations is this: that the State should permit the utmost freedom of self-regulation if it provides quick and effective machinery for the punishment of fraud, and gives to each stockholder the right to obtain the fullest information in regard to his own rights and privileges before and after he becomes the owner of stock. Upon this theory the committee has recommended a law which permits the corporation to determine the classes of its stock and the rights and liabilities of its stockholders. The recommended law provides for increasing or decreasing the amount of capital stock upon the affirmative vote of a majority of its stockholders. For the protection of a minority interest of stockholders it requires a two-thirds vote to change the classes of capital stock or their voting power, to change the corporate name or the nature of the business of the corporation, or to authorize a sale, lease, or exchange of its property or assets. Directors are made liable, jointly and severally, for actual damages caused by their fraudulent acts, but no director is made so liable unless he concurs in the act and has knowledge of the fraud. The liability of stockholders is limited to the payment of stock for which they have subscribed, to debts to employees, and in cases of a reduction of capital when they concur in the vote authorizing a distribution of assets which results in the insolvency of the corporation. An attempt has been made to give to the stockholder an opportunity of securing for himself the fullest information on all points touching his interest. _Third_.--The relation of the State to foreign corporations. The committee has been guided upon this subject by the theory that the treatment of foreign corporations by the Commonwealth should, so far as practicable, be the same as of its own, particularly so far as concerns the liabilities of officers and stockholders, the statements filed with the State authorities for the information of stockholders or others as to their capitalization and the methods adopted of paying in their stock, and the annual reports of condition required for taxation purposes or otherwise. On the same principle a nominal franchise tax is annually imposed corresponding to the tax imposed by the State on its own corporations and made approximately proportional in amount. A few broad general principles are almost universal in American legislation on the subject. Ordinary business corporations are now almost universally created under general law, and indeed by the constitutions of many States are forbidden to be created by special charter.[1] There is generally, however, no limitation by constitution on the size or capitalization, though the duration of corporations is frequently limited to twenty, thirty, or fifty years; and there is generally no limitation on the nature of the business that may be done, except, in a large number of States, banking and insurance, and except that there is in many States, as, notably, Massachusetts, a prejudice against land companies, so that they may not be created without a special charter. [Footnote 1: See Stimson's "Federal and State Constitutions," pp. 295, 315, 316.] The liability of stockholders is commonly limited to the shares of stock actually held or such portion of them as may not have been paid up by the stockholder in cash or property value. Massachusetts and the more conservative States attempt to provide that the stock shall be actually paid up in money or in property of the real value of money, at par. New Jersey, New York, Maine, West Virginia, and the laxer States, practically allow their directors to issue stock for anything they choose--labor, contracts, property, or a patent right--and their judgment on the value of such property is held to be final in the absence of fraud. Corporations are usually taxed, like individuals, on their tangible, visible property, real and personal, and in many States there is also a franchise tax on their shares.[1] There is a frequent limitation that the corporate indebtedness shall not exceed the amount of the capital stock.[2] No States, except Vermont and New Hampshire, seem now to have any limitation on the amount of the capital stock, or if there be a limitation, as of one million dollars at the time of formation, the corporation may subsequently increase its stock to any amount.[3] Michigan, however, had a limitation of five million dollars as to manufacturing or mercantile corporations, and two million five hundred thousand dollars as to mines; while Alabama and Missouri had a general limit of ten million dollars. The general tendency is clearly to have no limitation whatever. Commonly only a nominal proportion of the capital stock is to be paid in before the company begins business, but the stockholders are always liable to creditors for the amount unpaid. As already remarked, stock may usually be paid up in property, labor, or services, or, indeed, any legal consideration; and though most States provide that such property, etc., shall be taken at its actual cash value, such laws, except in Massachusetts, are not believed to be effectual. [Footnote 1: A valuable report on this subject, brought down to 1903, prepared by F.J. MacLeod, of Massachusetts, will be found in the "Report of the Committee on Corporation Laws," above referred to, at pp. 207-295.] [Footnote 2: MacLeod, pp. 165-166.] [Footnote 3: MacLeod, p. 169.] That stockholders are individually liable to the extent of the unpaid balance on their stock is merely a statutory statement of the ordinary rule in equity. It is, therefore, law without statute. Apparently only Indiana and Kansas now impose a double liability, the law in Ohio having been recently altered by constitutional amendment. In several States, however, they are liable for debts due for labor; in California they are absolutely liable for such proportion of all liabilities of the corporation as their stock bears to the total capital stock, while in Nevada they are expressly exempted from any liability whatever. We can trace two other decided tendencies in recent legislation about corporations. First, the increasing effort to bring about publicity of all such matters as well as of the annual books and accounts, well exemplified in the Massachusetts statute; second, the usual strong prohibitions against consolidations to permit trusts or contracts to further monopoly. There has also been a still more recent line of legislation to prevent corporations from holding stock in other corporations, or, at least, in competing companies; and to prevent alien corporations from holding land.[1] Under the strict common law no corporation could own or hold stock in another corporation or in itself. This has been completely departed from in practice in this country, and though not affirmatively recognized in most statutes--the Massachusetts statute, for instance, carefully avoids providing that the corporation may own stock in other companies--yet the practice has been universally ratified by the courts, if not by the implications of legislation. This new tendency to forbid it therefore is merely a return to common-law doctrine. Thus,[2] in 1903 only five States--Connecticut, Delaware, Maine, New Jersey, and Pennsylvania--provided generally that a corporation might own stock in another corporation; two States--Indiana and Minnesota--so provided as to manufacturing or mining companies. In New York, Ohio, and other States, a corporation could only own stock in another corporation engaged in a similar business, or a business useful or subsidiary, or in a corporation (New York) with which it was legally entitled to consolidate; but the tendency of recent legislation is precisely opposite on this point, forbidding stockholding by all corporations in similar or competing companies, or more specifically forbidding stockholding in similar or competing companies, as well as stockholding by railroads in railroad companies. [Footnote 1: See below, chap. 16.] [Footnote 2: MacLeod, p. 203.] The practice of permitting the free holding of stock by corporations, and especially by holding corporations, has been undoubtedly harmful to the public, and to the public morals, and has been the main cause making possible the speedy acquisition of immense private fortunes. The stockholding trust or the device by which (as in the Rock Island Railway system) a corporation is created for the purpose of holding half the stock of the real corporation and then possibly a third corporation, still to hold half the stock in the second, each of them parting with the other half, obviously makes possible the control of immense properties by persons having a comparatively small real interest. It is a mere arithmetical proposition, for instance, in the case mentioned, that whereas in one corporation it takes one-half of the stock to control it, the first holding company will enable it to be controlled by one-fourth and the second by one-eighth of the original stock. Legislation should properly be much more drastic on this point; but indeed our whole corporation legislation seems rather to have been drawn by able lawyers with a view of protecting the corporation or the person who profits by the abuse thereof, than with a real desire to apply intelligent and practicable remedies to the situation. Thus, until very recently, if now, there has been no legislation along this great line of preventing the holding and governing of corporations by such a system of Chinese boxes; nor has there been up to date any legislation whatever along the other great line of excluding objectionable corporations from doing business in the State, which any State has, except as to interstate commerce corporations, the unquestioned right to do. This right will, of course, disappear entirely if the recommendation of the present administration for a general Federal corporation law be adopted. The invention of the corporate share enables a clever few to control the many; a small minority to control the vast bulk of the real interest of all property in the country; the problem has obviously proved too great for popular intelligence, for so far little real legislation in the people's interest has been effected. Like most ancient popular prejudices, however, the blind instinct against corporations, common among our Populists, has a strong historical basis; it comes directly down from the prejudice against Mortmain, the dead hand, and from that against the Roman law; for corporations were unknown to the common law, and legislation against Mortmain dates from Magna Charta itself.[1] [Footnote 1: The legislation against trusts, as it existed up to 1900, will be found at the back of vol. II of the "Reports of the United States Industrial Commission."] It would perhaps be possible for Congress to pass an act forbidding any corporation to carry on its business outside of the State where it is chartered, unless, of course, it got charters from other States; certainly the States themselves might do so. This remedy also has never been tried, and hardly, in Congress, at least, been suggested. Yet it were a more constitutional and far safer thing to do than to cut the Gordian knot by a Federal incorporation act, which will forever securely intrench the trusts against State power. Even if New Jersey or the Island of Guam goes on with its lax corporation laws, permitting its creatures to do business all over the land without proper regulation, this power could thus be instantly taken away from it by such an act of Congress, even if the States themselves remained unready or unwilling to act. Then no corporation could be "chartered in New Jersey to break the laws of Minnesota," even if Minnesota permitted it. Trusts started as combinations and ended as corporations. They began as State corporations, subject both to State and Federal control and regulation; they may end as Federal corporations subject to no control except by Congress. It is too early yet to predict the result, but one assertion may be hazarded, that just as the original Sherman Act against trusts compelled the formation of trusts, so this proposed Federal legislation will compel the formation of Federal trusts, by all but the most local of business corporations. As to public-service corporations, both the legislation and the principle on which it rests are, of course, quite different. There is no serious difference of opinion that the stock should be paid up in actual money at par nor that dividends at the expense of the public should not be paid on watered stock. More and more the States are putting this sort of legislation into effect. There is also the general provision discussed in a former chapter that the rates or charges of all such corporations may be regulated by law or ordinance; and by far the most notable trend of legislation in this particular has been that franchises of corporations should be limited in time and should be sold at auction to the highest bidder. Thus, by a California law of 1897, all municipal franchises must be sold for not less than three per cent. of the gross receipts and after a popular vote or referendum on the question. It has been matter of party platform for some years that all franchises should thus be submitted to the local referendum. That is, all exclusive franchises whereby rights in the streets, or other rights of the public, are given away to a corporation organized for purposes of gain. In Louisiana, street railway franchises may only be granted on petition of a majority of the abutters, and must be sold at auction for the highest percentage of gross receipts, and so substantially in South Carolina. In Washington, an elaborate statute against discrimination by public-service corporations was passed by the initiative; but as the statute itself omitted the enacting clause the law has been held to be of no effect. Lastly, we will note as the most recent tendency, a more intelligent limitation by the States themselves of corporations organized in and by other States, frequently denying to such the right of eminent domain or, as in Massachusetts, to do business or make contracts without making full annual returns and submitting in all respects to the State jurisdiction. Under recent decisions of the Supreme Court, however, this power does not extend to any corporation doing an interstate commerce business; and, of course, under the Federal Incorporation Act, proposed by the present administration, the States would be completely deprived of such power, except, possibly, in so far as Congress may choose to relinquish it to them. How far, independent of such permission by Congress, the ordinary police power would extend, it will be almost impossible to define. XI LABOR LAWS Much of the law affecting employers or combinations of capital has its correlative, or rather equivalent, in combinations of labor; but leaving the matter of combinations for the next chapter, and reserving for this only statutes affecting the individual, we must again insist upon that great cardinal liberty of labor under the English common law, which already gives it a certain privilege and dispenses it from the laws affecting ordinary contracts, that is to say: _the contract of labor, alone of contracts under the English law, may not be enforced_. When we say "enforced" we of course mean that the laborer may not be compelled to carry it out; what, in the law, we call specific performance. This is a matter of such essential importance that it cannot be too strongly accentuated, as it is surprising how ignorant still the popular mind is upon this subject, how little it realizes labor's peculiar advantage in this particular. But it has always been true of the English and American law, at least since that early labor legislation sketched above in chapter 4 which came to a final end at least as early as Elizabeth, that no man could be compelled to work--except, of course, by way of punishment for crime--and more than that, he could not even be compelled to work or carry out a specific contract of labor to which he had bound himself by all possible formality. "Specific performance" is the peculiar process of a court of chancery, and at this point the resistance of the freemen of England we have traced in earlier chapters became absolutely effectual; that is to say, the court of chancery was never allowed to extend its strong arm over the labor contract. Even that famous first precedent of "government by injunction" discussed by us above (page 74) was resisted in early times, the precedent was not followed, it fell into complete desuetude, and it remained for the case of Springhead Spinning Company _v_. Riley,[1] decided as late as 1868, to extend the injunction process to the prohibition of a strike. And in more recent labor cases it has been found that the line between prohibiting a man from leaving his employment, even under peculiar circumstances, and ordering him to proceed with his contract of employment and to carry it out, is extremely fine, if not indistinguishable.[2] [Footnote 1: L.R. 6 Eq. 551.] [Footnote 2: For instance, the injunction against the employees of the Southern California Railroad requiring defendants to perform all their regular and accustomed duties "so long as they remain in the employment of the company" (62 Fed. 796), has always been severely criticised.] Now, the reason of this great principle (peculiar, I think, to Anglo-Saxon law) lies at its very root. It is the principle of personal liberty again. To English notions, and to English courts, indefinite labor continued for an indefinite time, or applied to an indefinite number of services, is indistinguishable from slavery; and compulsory labor even under a definite labor contract, such as to work for a week or a month or a year, or in limited directions, as, for instance, to work at making shoes or weaving cloth, when enforced by the strong arm of the law, smacked too much of slavery to be tolerable by our ancestors. Thus it is that, alone of all contracts, if a man sign an agreement to work for us to-day, he may break it to-morrow and will not be compelled to perform it; our only redress is to sue him for damages, and this again because we can only act under the common law. Chancery at this point at least is forbidden to take cognizance of matters affecting personal liberty and labor; and the common law, as has been said, "sounds only in damages." It is only chancery that can compel a man to do or not to do some thing or to carry out a contract. The other basic principle affecting all questions of labor law is that of freedom of trade or labor, correlative to the principle of freedom of contract as to property right, and, indeed, embodying that notion also. That is to say (perhaps I should say, to repeat) that an Englishman, an American, has a right to labor where and for whom and at what he will, and freely to make contract for such labor, and freely to exercise all trades, and not to be combined against by others, or competed with by a monopoly favored by the state. These last two clauses, of course, belong to our next chapter. This right of contract is not peculiar to the English law, as is the right not to be compelled to personal service, and is much better understood; though it is still earnestly argued by many advocates of union labor that there is no real freedom of contract, or, at least, equality of contract, between the employer and the employee; that therefore "collective bargaining" should be allowed, and that therefore, and furthermore, the wiser or the better organized should be permitted to combine to control the contract or the labor of the individual. But if we hold thoroughly these two principles before our mind we shall have the key to the understanding of our labor legislation; and if we add to that the third principle against conspiracy, we shall have the key to our more complicated legislation against trusts and blacklists and boycotts, and to an understanding of the more difficult questions, affecting labor in combination and the regulation of labor unions. That there has been a vast deal of interference, or attempted interference, with these principles in modern American legislation goes without saying. The motive or force behind such legislation has pretty clearly two sources: First, the behest or desire of the "Labor interest" or organized labor, the trades-unions themselves; and when we analyze these and their constituents we shall find that it really means only mechanical or industrial labor, not farm or agricultural labor (which is still in numbers the greatest body of labor in the United States), nor, as yet, domestic service labor, nor what the census calls "personal service," which is probably next in numerical importance, nor clerks; it is a comparatively small class in numbers, this class of skilled mechanical or manufacturing labor, that has brought about this immense mass of legislation of our modern States aimed at improving their own labor conditions; and which therefore, necessarily perhaps, interferes with personal liberty as to the labor contract, or, at least, seeks to regulate it. The other great influence is rather a motive than a source; we may call it, for want of a better word, the sentimental or the altruistic motive--the moral motive; the forces behind it being mainly of a religious or moral origin, philanthropists, students of ethics, and recently, to a great extent, the women and the women's clubs. The activity of these great forces may be clearly traced through the nineteenth century. It first belonged to the antislavery movement, which directly and historically led to the women's suffrage movement, owing to the fact that at a great antislavery convention in England a woman delegate was refused a seat upon the platform, while her husband, a comparatively obscure person, was recognized as the leading representative from America; and ending of late years in the prohibition movement, to regulate or prohibit the trade in intoxicating liquors, and to exclude the canteen from the army. But in the latest years, in these last very few years indeed, the forces of this category have devoted a large proportion of their "categorical imperative" to labor conditions and the labor contract. These great forces are entirely impatient of constitutional principles and somewhat indifferent as to the law, while always very desirous of making new statutes themselves. But their combined influence is enormous, so much so that almost any cause to which they devote themselves will in the long run succeed; unless, indeed, their attention is diverted to some other need, for it may be suggested that they are somewhat fickle of purpose. For example, their success in the antislavery movement makes the American history of the nineteenth century; in the prohibition movement they were, in the middle decades of that century, almost entirely successful, and while apparently there was a set-back in the twenty years of individualistic feeling which marked the growth of the Democratic party to an equality with its great rival, the movement of late years seems to have taken on renewed strength, probably on account of the so-called negro question in the South. And while, as to votes for women, they seem to have made no progress beyond the adoption twenty years ago of women's suffrage in four new Western States and Territories, this last year, it must be admitted, the movement has taken on a new strength in sympathy with the agitation in England. There are now already symptoms of a fourth cause--the reform of marriage, divorce and the laws regulating domestic relations, and the control of children. It is possible that these matters will be taken up actively in coming decades, and we, therefore, reserve them for a future chapter; this new effort is itself partly bound up with the women's suffrage movement, and in its latest manifestation--that of proposing legislation preventing men from marrying without permission from the state--it is a most picturesque example of that absence of constitutional feeling we have just adverted to. Now this freedom-of-contract principle is one which, of course, legislation attempting to regulate the labor contract is peculiarly liable to "run up against"; and it is, for this reason, not only or chiefly because "labor" is opposed to the Constitution or because the courts are opposed to "labor," that so many statutes, passed at least nominally in the interest of labor, have been by them declared unconstitutional. For instance, it is a primary principle that an English free man of full age, under no disability, may control his person and his personal activities. He can work six, or four, or eight, or ten, or twelve, or twenty-four, or no hours a day if he choose, and any attempt to control him is impossible under the simplest principle of Anglo-Saxon liberty. Yet there is possibly a majority of the members of the labor unions who would wish to control him in this particular to-day; and will take for an example that under the police power the state has been permitted to control him in matters affecting the public health or safety, as, for instance, in the running of railway trains, or, in Utah, in labor in the mines. But freedom of contract in this connection results generally from personal liberty itself; although it results also from the right to property; that is to say, a man's wages (or his trade, for matter of that) is his property, and the right of property is of no practical use if you cannot have the right to make contracts concerning it. The only matter more important doubtless in the laborer's eye than the length of time he shall work is the amount of wages he shall receive. Now we may say at the start that in the English-speaking world there has been practically no attempt to regulate the _amount_ of wages. We found such legislation in mediaeval England, and we also found that it was abandoned with general consent. But of late years in these socialistic days (using again socialistic in its proper sense of that which controls personal liberty for the interest of the community or state) it is surprisingly showing its head once more. In Australasia and more recently in England we see the beginning of a minimum wage system which we must most carefully describe before we leave the subject. There was in the State of Indiana a law that in ordinary unskilled labor in public employment there should be a minimum wage of fifteen cents per hour or twenty-five cents for a man and horse--since declared unconstitutional by Indiana courts: while to-day such labor receives a minimum of two dollars per day in California and Nebraska, one dollar and a quarter in Hawaii, three dollars in Nevada, and "the usual rate" in Delaware and New York,[1] and we are many of us familiar with the practice of towns and villages in New England or New York in passing a vote or town ordinance fixing the price of wages at two dollars per day, or a like sum; but this practice, it must be remarked, is in no sense a _law_ regulating wages; it is merely the resolution or resolve of an employer himself, as a private citizen might say that he would give his gardener fifty dollars a month instead of forty. And, on the other hand, the Constitution of Louisiana provides that the price of wages shall never be fixed by law. Now it will be remembered that the Statutes of Laborers of the Middle Ages, when they regulated the price of wages, led directly to the result that they made all strikes, all concerted efforts to get an increase of wages, unlawful and even criminal; in fact, it may be said that this attempt to bind the workmen to a wage fixed by law was the very cause of the notion that strikes were illegal, which, indeed, was the English common law down to early in the last century. Moreover, when an English mediaeval peasant refused to labor for his three pence a day he might be sent to gaol by the nearest justice of the peace, as, perhaps, some employers would like to do to-day in our South, and which resulted--if not in slavery--in precisely that condition which we call "peonage." Economically speaking, the attempt to regulate wages was, of course, a mistake; politically speaking, it was universally unpopular, and no class was more desirous than the working class themselves of getting rid of all such legislation, which they did in France at the French Revolution, and in England nearly two centuries earlier. Only socialists should logically desire to go back to the system, and in the one modern English-speaking State which is largely socialistic--New Zealand--it is said that the minimum wage law has had the effect that a similar resolve has had in Massachusetts towns: to drive all the old men and all the weaker or less skilled out of employment entirely, and into the poorhouse;[2] for, at a fixed price, it is obvious that the employer will employ only the most efficient labor, and the same argument causes some of their more thoughtful friends to dissuade the women school-teachers in New York from their present effort to get their wages or salaries fixed by law at a price equal to that paid a man.[3] [Footnote 1: See above, p. 161; below, p. 213.] [Footnote 2: In the old town of Plymouth the chairman of the selectmen asked what, he should do under vote of town meeting requiring him to pay two dollars a day for all unskilled labor employed by the town. "We have," he said, "about one hundred and twenty old men in Plymouth, largely veterans of the Civil War. We have been in the habit of giving them one dollar and a quarter per day. Under this two-dollar vote we cannot do it without bankrupting the town." He was advised to go ahead and still pay them the dollar and a quarter per day and take the chance of a lawsuit, which he did, and so far as the writer knows no lawsuit has ever been brought; but in all cases that would not be the result.] [Footnote 3: This is law in Utah; but nevertheless a letter from a State government official informs me that women are willing to [and do?] work for a smaller salary.] A principle somewhat akin to that of a vote of a town fixing the rate of wages is the recent constitutional amendment in the State of New York (see above, p. 161) which validated the statute requiring that in public work (that is to say, labor for the State, for cities, towns, counties, villages, school districts, or any municipality of the State), or _for contractors employed directly or indirectly by the State or such municipality_, that rate shall be paid which is usual at the time in the same trade in the same neighborhood. This was the earliest statute, which was declared unconstitutional (see above, p. 161). The lack of interest in this tremendously important matter is shown in the fact that not one-third of the voters took the trouble to vote on the amendment at all, and that for three days after the election no New York newspaper took notice of the fact that the amendment had passed. Up to this constitutional amendment the courts of New York, as well as those of California and even of the United States, had resented with great vigor the attempt of statutes to make a crime the permitting of a free American citizen to work over eight hours if he liked so to do. But in New York at least (now followed in Delaware, Maryland, and Oklahoma) it is now settled that so much interference even with the rate of wages may be allowed, and as the percentage of public employment is, of course, very large--covering as it does not only all public contractors, but all labor in or for gaols or public institutions--it will necessarily, it would seem, drag with it a certain practical regulation of private industry corresponding to the public rules. In England, the New Zealand experiment has been tentatively begun; that is to say, in the last radical Parliament, in the autumn of 1909, the law was enacted, already referred to, for fixing wages by mixed commission (see above, p. 159); but otherwise than as above there is in the States and Territories of the United States, and in the United States itself, no regulation of wages, even of women or children, and no attempt, as yet, at a minimum wage law. When we come to hours, the matter is very different. In the first place, we must be reminded that without a constitutional amendment you cannot have any direct or indirect legislation, as to general occupations, on the hours of labor of a man of full age.[1] You can have regulation of the hours of labor of a woman of full age in general employments, by court decision, in three States (Massachusetts, Oregon, and Illinois), the Massachusetts decision, carelessly rendered in 1876, without citing any authority whatever,[2] being based apparently on a vague notion of general sanitary reasons, without argument or apparently due consideration of the historical and constitutional law; but the Oregon case,[3] decided both by the State Supreme Court and by the Federal Court in so far as the Fourteenth Amendment was concerned, after most careful and thorough discussion and reasoning, reasserted the principle that a woman is the ward of the state, and therefore does not have the full liberty of contract allowed to a man. Whether this decision will or will not be pleasing to the leaders of feminist thought is a matter of considerable interest. A similar statute in Illinois had been declared unconstitutional twenty years before, largely on the ground that to limit or prohibit the labor of woman would handicap her in her industrial competition with man, pointing out also that the Illinois Constitution itself prescribes and requires that the rights of the sexes should in all respects be identical, save only in so far as jury and militia service and political rights were concerned. A new statute since the Oregon decision has been passed in Illinois and the law was sustained, reversing the older case. On the other hand New York courts take a position squarely contrary,[4] and so in Colorado.[5] The constitutional justification of these decisions must probably be that the health not only of the women themselves, but of the general public, or at least of posterity, is concerned, for, as we shall find more particularly when we discuss general legislation on the police power, to justify an interference with personal liberty of freemen there must, under English ideas, be a motive based upon the health, safety, and well-being of all of the whole community, not merely of the particular citizen concerned. He has the right to work in unhealthy trades at unhealthy times, or under unhealthy conditions, just as he has the right to consume unhealthy food and drink. If it be prohibited, it must be prohibited when it has a direct relation to the general welfare. For example, a railway engineer may be prohibited from working continuously for more than sixteen hours, for that is a direct danger to the safety of the public; but a man may not be prohibited from taking service for long hours as stoker on a steamship, although the life of a stoker be a short one and not over merry. Apparently, however, a woman can be; and indeed there have for a long time been laws prohibiting the labor of women in England and regulating their hours. But then there are laws prohibiting women from serving in immoral occupations, or occupations which are supposed to be dangerous to their morals, as, for instance, many States have laws against the serving of liquor, or even of food, by women or girls in places or restaurants where liquor is served, or for certain hours, or in certain places. Very conceivably a law might be passed prohibiting women and girls from the selling of programmes, or attending upon dime museums, or even selling newspapers, or being district messengers; but, as we all know, there are women cabmen in Paris. Would legislation prohibiting such employment to women be unconstitutional? There is already a considerable amount of it. The cases are conflicting, the earlier view, and the view taken in the South and in at least one Federal court, being that such laws are unconstitutional. The modern doctrine, backed up by that public opinion which we have above described as the ethical force, would seem to sustain them. The truth is probably that the legislature must be the sole judge of the expediency of such legislation; where the court can see that it does bear a direct relation to the morals of the young women concerned, or the morals of the general community, it will be sustained as constitutional under the police power, although to that extent interfering with the personal liberty of women and with their means of getting a livelihood. [Footnote 1: Georgia and South Carolina have such law requiring sixty-six and sixty hours a week respectively in cotton and woollen manufacturing; but their constitutionality has never been tested. For _public_ work, see below.] [Footnote 2: Commonwealth _v._ Hamilton Manufacturing Co. 120 Mass. 383.] [Footnote 3: Muller _v._ Oregon, 208 U.S. 412. So in Pennsylvania: Commonwealth _v._ Beatty, 23 Penn. C.C. 300.] [Footnote 4: People _v._ Williams, 81 N.E. 778.] [Footnote 5: Bucher _v._ People, 93 Pac. 14.] As to children there is, of course, no question. Laws limiting their labor are perfectly constitutional, and some child-labor laws exist already in all States and Territories except Nevada. The only dispute on the child-labor question is whether such legislation should be Federal, or rather whether the Constitution should be so amended as to make Federal legislation possible. Practically this would meet with a very much wider opposition than is commonly supposed. The writer, acting as chairman of the National Conference of Commissioners on Uniformity of Legislation appointed under laws of more than thirty States of the Union and meeting in Detroit, Michigan, in 1895, brought this matter up under a resolution of the Legislature of the State of Massachusetts requesting him to do so. Nearly every Southern delegate and most of those from the West and from the Middle States were on their feet at once objecting, and the best he could do was to get it referred to a committee rather than have the Commonwealth of Massachusetts summarily snubbed. This committee, of course, never reported. Undoubtedly climatic effects, social conditions, and dozens of other reasons make it difficult, if not unwise, to attempt to have the same rules as to hours of labor in all the States of our wide country. Boys and notably girls mature much earlier in the South than they do in the North; schooling conditions are not the same, homes are not so comfortable, the money may be more needed, the general level of education is less. Doubtless there are still areas in the South where on the whole it is better for a child of fourteen to be in a cotton mill than anywhere else he is likely to go, schools not existing. The Southern delegates resented interference with their State police power for these reasons. The Massachusetts Legislature, on the other hand, had in mind the competition of Southern mills, with cheap child labor, quite as much as any desire to benefit the white or negro children of the South; but the writer's experience convinced him that a constitutional amendment on this point is impossible, although one has been repeatedly proposed, notably by the late Congressman Lovering of Massachusetts, and such an amendment is still pending somewhere in that limbo of unadopted constitutional amendments for which no formal cemetery seems to have been prepared. Even as to men, the labor of the Southern States is notably different from the labor of Lowell or Lawrence, Massachusetts, or even Cambridge; while on the Panama Canal or in most tropical countries the ordinary laborer likes to pretend that he is working eighteen hours a day, although most of the time is spent in eating or sleeping. Nevertheless, under the Federal law, all employees at Panama have to be given the eight-hour day required by the Federal statute, the Supreme Court having upheld that act as constitutional. It is curious to note, in passing, the alignment of our courts upon this subject of hours of labor and general interference with the freedom of contract of employment. The Western and Southern States are most conservative; that is to say, most severe in enforcing the constitutional principles of liberty of contract as against any statute. The courts of the North and East are more radical, and the courts of Massachusetts and the United States most radical of all. I account for this fact on the ground that where the legislatures are over-radical, the courts tend to react into conservatism, and as the Western legislatures try many more startling experiments than are usually attempted in Massachusetts or New Jersey, the more intelligent public opinion has to depend on the courts to apply the curb. All this, of course, is a great mistake; for it forces undue responsibility on the courts, at least tends to control in an improper way the appointment of judges, and at best forces the most upright judge into a position where he should not be put--that of being a kind of king or lord chamberlain, with power to set aside improper or wrong legislation. With these preliminary remarks we are now prepared to examine the legislation as it exists to-day (1910); cautioning our readers that this subject, as indeed all others concerning labor legislation, is so often tinkered in all our States as to make our statements of little permanent value, except that restrictions once imposed are rarely repealed. We may assume, therefore, that the law is at least as radical as it is herein presented. The hours of labor of _adults_, males, in ordinary industries remain as yet unrestricted by law in any State of the Union; but several States have laws making a certain number of hours a day's work in the absence of contract;[1] and New York and a few other States have an eight-hour day in "public" work--that is to say, work directly for the State or any municipality or for a contractor undertaking such work.[2] [Footnote 1: Thus eight hours (California, Connecticut, Illinois, Indiana, Missouri, New York, Ohio, Pennsylvania, Wisconsin); ten hours (Florida, Maine, Michigan--with pay for overtime--Minnesota, Montana, Maryland--for manufacturing corporations--Nebraska, New Hampshire, Rhode Island, South Carolina--in cotton and woollen mills--in New Jersey), fifty-five hours a week in factories; in Georgia eleven hours in manufacturing establishments, or from sunrise to sunset by all persons under twenty-one, mealtimes excluded (see below). But these laws do not usually apply to agricultural or domestic employment or to persons hired by the month.] [Footnote 2: In public work, that is, work done for the State, or any county or municipality or for contractors therefor, the eight-hour day is prescribed (California, Colorado, Delaware, District of Columbia, Hawaii, Idaho, Indiana, Kansas, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New York, Oklahoma, Oregon, Pennsylvania, Porto Rico, Utah, Washington, West Virginia, Wisconsin, Wyoming, and the United States). But the provisions for overtime and compensation for overtime differ considerably.] The labor of women (in mechanical trades, factories and laundries in Illinois, or in mercantile, hotel, telegraph, telephone, etc., as well, in Oregon) for more than a limit of ten hours per day in Illinois, or nine in Oregon, is prohibited and made a misdemeanor; and both these statutes have been held constitutional. But in many other States the hours of labor in factories or manufacturing establishments, even of adult women, are now regulated; while the labor of children, as we shall find, is regulated in nearly all. Thus, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Virginia, and Washington have a ten-hour day in all manufacturing or mechanical employments for women of any age, which in Connecticut, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, and Washington extends to mercantile avocations also, in Louisiana only to specified dangerous trades; in Wisconsin, eight hours; and in Connecticut, Maine, Minnesota, New Hampshire there may not be more than fifty-eight hours a week, or in Massachusetts and Rhode Island, fifty-six, and in Michigan and Missouri, fifty-four. Arizona has an eight-hour day in laundries. And these laws are extended to specified occupations, viz., in Connecticut to manufacturing, mechanical, and mercantile; in Illinois, mechanical, factory, or laundry; in Louisiana, unhealthful or dangerous occupations except agricultural or domestic; in Maine, mechanical and manufacturing except of perishable products; in Maryland, special kinds of manufactories; in Massachusetts, manufacturing, mechanical, mercantile, and restaurants; in Michigan, Minnesota, and Missouri, manufacturing, mechanical, and mercantile or laundries; in Nebraska, manufacturing, mercantile, hotel, or restaurant; in New Hampshire, New York,[1] North Dakota, Oklahoma, Rhode Island, manufacturing and mechanical; in Tennessee and Virginia, manufacturing only; in Washington and Oregon manufacturing, mechanical, mercantile, laundry, hotel, or restaurant, and in Wisconsin, mechanical or manufacturing. Georgia and South Carolina regulate the labor of women as they do of adult men[2] in factories. Such laws of course would not be unconstitutional or, if so, not for the reason of sex discrimination. [Footnote 1: Possibly unconstitutional. See above.] [Footnote 2: See above.] Now all these laws arbitrarily regulate the hours of labor of women at any season without regard to their condition of health, and are therefore far behind the more intelligent legislation of Belgium, France, and Germany, which considers at all times their sanitary condition, and requires a period of rest for some weeks before and after childbirth. The best that can be said of them, therefore, is that they are a beginning. No law has attempted to prescribe the social condition of female industrial laborers, the bill introduced in Connecticut that no married woman should ever be allowed to work in factories having failed in its passage. The hours of labor of minors, male and female, are limited in all States, except Florida, Missouri, Montana, Nebraska, Nevada, New Mexico, South Carolina, Texas, Vermont, Utah, Washington, West Virginia, and Wyoming, particularly in factories and stores, usually under an age limit of sixteen, to ten hours per day or fifty-eight hours a week.[1] But in Alabama, Arkansas, and Virginia, the age is as low as fourteen, and in California, Indiana,[2] Louisiana, Maine,[2] Massachusetts, Michigan, North Carolina, Ohio,[2] Pennsylvania,[2] and South Dakota,[2] it is eighteen. In California, Delaware, Idaho, and New York, it is nine hours, and in Colorado, District of Columbia, Illinois, Indiana, Kansas, New York,[3] North Dakota, Ohio, and Oklahoma, it is as low as eight hours a day, though the laws in several States, as in New York, are contrary and overlie each other. A corresponding limit, but sometimes less, is fixed for the week; that is, in the nine-hour States and some others, weekly labor may not exceed fifty-four hours or less.[4] [Footnote 1: Connecticut, Maine, Massachusetts (in manufacturing, fifty-six), Mississippi, New Hampshire (nine hours, forty minutes), Pennsylvania. In others, sixty hours a week (Alabama, Arkansas, Indiana, Iowa, Kentucky, Maryland (in Baltimore only), Minnesota, New York, Oregon, South Dakota, Tennessee, Wisconsin).] [Footnote 2: As to females only (Indiana, Maine, Ohio, Pennsylvania, South Dakota).] [Footnote 3: In factories (New York).] [Footnote 4: Fifty-four hours (Delaware, Idaho, Michigan, New York), fifty-five hours (New Jersey), fifty-six hours (Massachusetts, Rhode Island), forty-eight hours (District of Columbia, Illinois, Kansas, Ohio, Oklahoma), sixty-six hours (North Carolina).] Night work in factories, etc., is prohibited in nearly all the States mentioned and in others.[1] Many States require working papers or certificates of age of the person employed, and there are often also certificates as to the required amount of schooling when necessary. Indeed it may be said that we are on the way to the German system of having time cards or certificates furnished by State machinery for all industrial workers, and such a system will, of course, be absolutely necessary should the State ever engage in old-age insurance, as has been done in Germany and England; though the practical difficulty of such a scheme would have been thought by our fathers insuperable on account of our Federal and State system of government, and the necessary free immigration of American workmen from one State into another. [Footnote 1: Thus, night labor in factories to minors under fourteen (Arkansas, Georgia, Massachusetts, North Carolina, Texas, Virginia), twelve (South Carolina), eighteen (New Jersey), or sixteen (Alabama, California, Connecticut, Delaware, District of Columbia, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont, Wisconsin) is prohibited in factories or mercantile establishments (Connecticut, Iowa, Kansas, Michigan, New York), or any gainful occupation (Delaware, District of Columbia, Idaho, Illinois, Kentucky, Louisiana, Minnesota, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Wisconsin). In South Carolina the law only protects children under twelve from night labor in mines and factories. So in some as to all females only (Indiana), females under eighteen (Louisiana, Michigan, Ohio, Oklahoma, Pennsylvania), twenty-one (New York), and to any minor between 10 P.M. and 6 A.M. (Massachusetts).] These laws will be found summarized in full in _Legislative Review_, No. 5, of the American Association for Labor Legislation, by Laura Scott ("Child Labor"), and in No. 4, by Maud Swett ("Woman's Work"). It will be seen that in all respects practicable with our necessary system of individual liberty, doubly guaranteed by the constitutions, State and Federal, we are quite abreast of the more intelligent legislation of European countries as to hours of labor, women's and children's, except in a few States. But it should be remembered that these are largely agricultural or mining States, and doubtless when the abuse of child and woman labor presents itself it will be met as frankly and fairly there as in others. On the constitutionality, if not the economic wisdom of laws regulating the hours of labor of women, at least of adult years, there still is decided difference of opinion. Logically it would perhaps seem as if those who believe in the "Woman's Rights" movement of uniform function for women and men, should be opposed to all such legislation; both on theoretical grounds as being a restraint of personal liberty, and as unequal legislation handicapping woman in her industrial competition with man. This was certainly the earlier view; but under the influence of certain voluntary philanthropic associations the tendency at present seems to be the other way. The States which have laws prohibiting any labor of children whatever, even, apparently, agricultural or domestic,[1] are: Arizona, Arkansas, Connecticut, Colorado, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Maryland, Missouri, Massachusetts, Minnesota, Montana, Nebraska, New York, North Dakota, Oregon, Washington, and Wisconsin. [Footnote 1: The New York law applies to "any business or service," but I assume this cannot mean service rendered to the parents in the house or on the farm; in fact it may be generally assumed that all these laws, even when they do not say so, mean only employment for hire; the Oregon and Wisconsin laws, to "any work for compensation"; the Washington law to "any inside employment, factory, mine, shop, store, except farm or household work." Arkansas, Delaware, Idaho, and Wisconsin, to "any gainful occupation"; Maryland, to "any business," etc., except farm labor in summer; Colorado, to labor for corporations, firms, or persons; the other State laws to any work.] And the age limit fixed for such general employment is (without regard to schooling) under twelve, in Idaho and Maryland; under fourteen in Delaware, Illinois, and Wisconsin; and under fourteen for boys and sixteen for girls in Washington, if without permit, and under fifteen, for more than sixty days without the consent of the parent or guardian in Florida; in other States the prohibition rests on educational reasons, and covers only the time of year during which schools are in session; thus, under eight during school hours, or fourteen without certificate (Missouri); under fourteen during the time or term of school sessions (Connecticut, Colorado,[1] Massachusetts, Idaho, Kansas, Kentucky, Minnesota, New York, North Dakota); or under fourteen during actual school hours (Arizona,[2] Kentucky, Nebraska, Oregon); or under fifteen in Washington,[1] and under sixteen as to those who cannot read and write (Colorado, Connecticut,[3] Illinois,[3],[4]) or have not the required school instruction (Idaho, New York[1],[4]), or during school hours (Arkansas, Montana[1]), or who have not a labor permit (Maryland, Minnesota, Wisconsin). This résumé shows a pretty general agreement on the absolute prohibition of child labor under fourteen, or under sixteen as to the uneducated; and the penalty is in most States only a fine inflicted on the employer, or, in some cases, the parent; but in Florida and Wisconsin it may be imprisonment; as it is in Alabama for a second offence. [Footnote 1: Without schooling certificate.] [Footnote 2: Without certificate of excuse.] [Footnote 3: Unless the child attends a night school.] [Footnote 4: Without age certificate.] But more States fix a limit of age in the employment of children in factories or workshops, and particularly in mines; not so usually, however, in stores.[1] The age of absolute prohibition is usually fixed at fourteen or at sixteen in the absence of a certain amount of common-school education. These States are: Alabama,[2] Arkansas,[3,9] California,[4,9] Colorado,[5] Connecticut,[5] Delaware,[5,6] District of Columbia,[7,9] Florida,[3,9] Georgia,[8] Illinois,[5,9] Indiana,[9,10] Iowa.[11,9] Kansas and Kentucky[8] forbid factory labor for children under fourteen or between fourteen and sixteen without an age certificate or an employment certificate; Louisiana[9] has the usual statute, that is, absolute prohibition under fourteen and age certificate required for those between fourteen and sixteen, or, in the case of girls, between fourteen and eighteen, and the law applies to mercantile occupations where more than five persons are employed; the Maine statute is similar, but children above fifteen may work in mercantile establishments without age or schooling certificate, which is required of all those under sixteen in manufacturing or mechanical employment; in Maryland,[12] the prohibition age is still twelve, and the law applies to any business except farm labor in the summer; in Massachusetts,[12] absolute prohibition below fourteen, fourteen to sixteen without age or schooling certificate, and fourteen to eighteen, who cannot read and write; in Michigan,[12] absolute prohibition under fourteen, or sixteen without written permit; in Minnesota, the same ages, but the law applies to any employment; in Mississippi the ages are twelve and sixteen; in Missouri, absolute prohibition under eight, or fourteen without school certificate. New Hampshire[12] lags behind and has only an absolute prohibition to children under twelve, or during school under fourteen, or under sixteen without schooling certificate. In New Jersey, under fourteen, or sixteen with medical certificate; Nebraska[l2] and New York,[12] the usual absolute prohibition under fourteen, or under sixteen without employment certificate; North Carolina, under twelve, with an exception of oyster industries; North Dakota,[12] fourteen, or from fourteen to sixteen without employment certificate. In Ohio,[12] Oklahoma, Oregon,[12] Pennsylvania,[12] and Rhode Island,[12] the laws are practically identical, fourteen, or sixteen with certificate of schooling. South Carolina, absolute prohibition only under twelve, and not even then in textile establishments if the child has a dependency certificate. South Dakota,[12] under fifteen when school is in session; Tennessee, absolute under fourteen; Texas, under twelve, or under fourteen to those who cannot read and write unless the child has a parent to support. Vermont's limitation is purely educational; no child under sixteen can be employed in factories or mines who has not completed nine years of study. In Virginia[12] from March 1, 1910, there is absolute prohibition under fourteen except as to children between twelve and fourteen with a dependency certificate; Washington, under fifteen without schooling certificate, or in stores, etc., twelve. West Virginia, twelve, or fourteen when school is in session. Utah and Wyoming have no legislation except as to mines, nor do Colorado and Idaho protect women in them. Yet these are the four woman-suffrage States. [Footnote 1: The law does apply to "mercantile establishments" (Alabama, Arkansas, California, District of Columbia, Florida, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Virginia, West Virginia).] [Footnote 2: Absolute prohibition only under twelve. School and age certificate from twelve to sixteen; age certificate from sixteen to eighteen.] [Footnote 3: The ages are fourteen and eighteen respectively, or sixteen in stores during school hours; in Florida, twelve, or when school is not in session, without an age, schooling, and medical certificate.] [Footnote 4: Absolute prohibition under twelve or from twelve to fourteen during the school term or under sixteen to those who cannot read and write, and the law applies to mercantile establishments, hotel and messenger work, etc., making expressly the usual exemption of agricultural or domestic labor.] [Footnote 5: Absolute prohibition under fourteen; from fourteen to sixteen without certificate (Connecticut, Illinois, Kansas, Kentucky), and medical certificate if demanded (Delaware).] [Footnote 6: Any gainful occupation under fourteen. Except canning fruit, etc. (Delaware).] [Footnote 7: Any business or occupation during school hours, except in the United States Senate, and the age is absolute prohibition under twelve; twelve to fourteen without a dependency permit, and fourteen to sixteen without schooling certificate.] [Footnote 8: Absolute under twelve; twelve to fourteen without schooling certificate; fourteen to eighteen without age and schooling certificate except as to those who have already entered into employment. Does not apply to mines.] [Footnote 9: This law applies to mercantile establishments, etc., as well.] [Footnote 10: Absolute under fourteen, or under sixteen to those who cannot read and write.] [Footnote 11: Prohibition is absolute under the age of fourteen, and applies to employment in mercantile establishments as well, or stores where more than eight people are employed.] [Footnote 12: This law applies to mercantile establishments, etc., as well.] The laws as to labor in mines are naturally more severe; although in some they are covered by the ordinary factory laws (Colorado, Florida, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Wisconsin). Female labor is absolutely forbidden in mines or works underground in Alabama, Arkansas, Illinois, Indiana, Missouri, New York, North Carolina, Oklahoma, Pennsylvania, Utah, Washington, Wyoming, and West Virginia,--in short, in most of the States except Idaho, Kansas, Iowa, Kentucky, Virginia, Wyoming, where mines exist; and the limit of male labor is usually put at from fourteen. (Alabama, Arkansas, Idaho, Indiana, Missouri, Ohio,[1] South Dakota, Tennessee, Utah, Wyoming) to sixteen (Illinois, Missouri,[2] Montana, New York, Oklahoma, Pennsylvania, Washington); or twelve (North Carolina, South Carolina, West Virginia), even in States which have no such legislation as to factories. [Footnote 1: Fifteen during school year.] [Footnote 2: Of those who can read and write.] The laws as to elevators,[1] dangerous machinery,[2] or dangerous employment generally,[3] are even stricter, and as a rule apply to children of both sexes; the Massachusetts standard being, in the management of rapid elevators, the age of eighteen, in cleaning machinery in motion, fourteen, etc.; in other States, sixteen to eighteen.[4] The labor of all women in some States, and of girls or women under sixteen or eighteen in other States, is forbidden in occupations which require continual standing.[5] Females,[6] or minors,[7] or young children[8] are very generally forbidden from working or waiting in bar-rooms or restaurants where liquor is sold, and in a few States girls are prohibited from selling newspapers or acting as messengers.[9] The Northern States have a usual age limit for the employment of children in ordinary theatrical performances, and an absolute prohibition of such employment or of acrobatic, immoral, or mendicant employment. But in some States it appears there is only an age limit as to these.[10] [Footnote 1: Indiana, Massachusetts, New York, Rhode Island, Kansas, Oregon.] [Footnote 2: Connecticut, Iowa, Missouri, Oregon, Louisiana, New York.] [Footnote 3: Illinois, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Wisconsin.] [Footnote 4: Indiana, Iowa, Louisiana, New Jersey, New York, South Carolina.] [Footnote 5: Illinois (under sixteen), Michigan (all), Minnesota (sixteen), Missouri (all), New York (sixteen), Ohio (all), Oklahoma (sixteen), Wisconsin (sixteen), Colorado (all over sixteen).] [Footnote 6: Iowa, Louisiana, Michigan, Missouri, New Hampshire, New York, Vermont, Washington (except the wife of the proprietor or a member of the family).] [Footnote 7: Arizona, Connecticut, Georgia, Pennsylvania, Idaho, Maryland, Michigan, Missouri, New Hampshire, South Dakota, Vermont.] [Footnote 8: Florida, Illinois, Massachusetts, Missouri, Nebraska.] [Footnote 9: New York, Oklahoma, Wisconsin.] [Footnote 10: California, Kentucky, Maine, Maryland, Michigan, Missouri, Montana, New York, Oregon, Rhode Island, (sixteen years); Colorado, District of Columbia, Florida, Illinois, Kansas, New Hampshire, Virginia, Wisconsin, Wyoming (fourteen); Connecticut, Georgia, (twelve); Delaware, Indiana, Louisiana, Massachusetts, West Virginia (fifteen); Minnesota, New Jersey, Pennsylvania, Washington (eighteen).] The hours for railroad and telegraph operators are limited in several States, but rather for the purpose of protecting the public safety than the employees themselves.[1] The following other trades are prohibited to women or girls: Boot-blacking,[2] or street trades generally;[3] work upon emery wheels, or wheels of any description in factories (Michigan), and in New York no female is allowed to operate or use abrasives, buffing wheels, or many other processes of polishing the baser metals, or iridium; selling magazines or newspapers in any public place, as to girls under sixteen,[4] public messenger service for telegraph and telephone companies as to girls under nineteen.[5] [Footnote 1: Colorado, New York.] [Footnote 2: District of Columbia, Wisconsin.] [Footnote 3: District of Columbia, Wisconsin.] [Footnote 4: New York, Oklahoma, Wisconsin.] [Footnote 5: Washington.] Leaving now the question of general employment, where no general laws limiting time or price would seem to be constitutional, except in certain cases as to the employment of women and in all cases that of children, and going to special occupations, we shall find quite a different principle; for in a special occupation known to be dangerous or unhealthy, certainly if dangerous or unhealthy to the general public, it has always been the custom and has always been constitutional with us to control conditions by statute. The question of what is a dangerous or unhealthy occupation to the public rather than merely to the persons employed is, of course, a difficult one; and the Supreme Court of the United States have split so closely on this point that they have in Utah decided that mining was an occupation dangerous to the public health, and in New York that the baking of bread was not. That is to say, that the condition of bakeshops bore no relation to the general health of the community. One might, perhaps, have expected that they would have decided each case the other way; but we must take our decisions as we get them from the Supreme Court, reserving our dissent for the text-books. In any event, it can be seen that the line is very close, certainly in the case of adult male labor. The same statute as to mines existed in Colorado that the United States Supreme Court sustained in Utah. The Colorado Supreme Court had declared it unconstitutional, and after the decision of the United States Supreme Court they continued to declare it unconstitutional, simply saying that the United States Supreme Court was wrong. Anyhow, it is obvious that in trades which involve a great mass of the people, or affect the whole community, or particularly where there are definite dangers, such as noxious vapors or tuberculosis-breeding dust, it will be constitutional, as it is common sense, to limit the conditions and even the hours of labor of women or men, as well as children. Students interested in such matters will find the universal legislation of the civilized world set forth in the invaluable labor-laws collection of the government of Belgium; and he will find that all countries of the world do regulate the hours of labor as well as the conditions, in all such trades, and we should not remain alone in refusing to do so. The difficulty of regulating the hours of farm labor is, of course, obvious, and so far as I know, no attempt has yet been made. The same thing remains still true of domestic labor, though it has been more questioned. It should be noted that both domestic labor and farm labor belong to the class of what we call indefinite service. Now, indefinite service must always be regulated very carefully as to the length of the contract, which is never to be indefinite; that is to say, if it be both indefinite in the services rendered and in the time during which they are to last, it is in no way distinguishable from slavery. For instance, in Indiana, many years before the Civil War, there was an old negro woman who was induced to sign a contract to serve in a general way for life; that, of course, was held to be slavery. More recently the United States Supreme Court has held that a contract imposed upon a sailor whereby he agreed to ship as a mariner on the Pacific coast for a voyage to various other parts of the world and thence back was a contract so indefinite in length of time as to be unenforceable under free principles, although a sailor's contract is one which in a peculiar way carries with it indefinite service. And a contract "_à tout faire_" even for a week might be held void. In all these matters the labor of women, and even that of children, will very often control the hours of labor of men; for instance, in the mills of New England, more than half the labor is not adult male; yet when any large class of the mill's operatives stop, the whole mill must stop; consequently, a law limiting the labor of women and children to fifty-six hours a week will be in practice enforced upon the adult males employed in the same mill. Continental legislation has gone far beyond us in all these important particulars. In most countries the conditions surrounding the labor of women, particularly married women, are carefully regulated by law. She is not allowed to go back to the mill for a certain period after childbirth, and in many more particular respects her health is carefully looked after. Such legislation would possibly be impossible to enforce with our notions in America. The most interesting of all is perhaps the attempt made in the State of Connecticut within a few years to improve social conditions by providing that no married woman should be employed in factories at all. The bill was not, of course, carried, but it raises a most interesting sociological question. Ruskin probably would have been in favor of it. He described as the very last act of modern barbarism for the woman to be made "to shriek for a hold of the mattock herself." It was argued in Connecticut that the employment of married women injured the health of the children, which is perfectly true. Indeed, the death-rate in England is very largely determined by the fact whether their mothers are employed in mills or not. It was also argued that her competition with man merely halved his wages; that if no women were employed, the men would get much higher wages. On the other side it was argued that the effect of the law would be largely immoral because it would simply prevent women from getting married. Knowing that after marriage they would get no employment, they would simply dispense with the marriage ceremony; for it is obvious that under such legislation a man living with a woman unmarried could get double wages, which would be halved the moment he made her his wife. This last was evidently the view which prevailed; and so far as I know, no such law has in the civilized world yet been enacted, though there is doubtless a much stronger social prejudice against women entering ordinary employments in some countries than in others. The constitutional question underlying all this discussion was perhaps best set forth by an experiment of the late Mr. Edward Atkinson, which he always threatened to bring into the courts, but I believe did not do so. "An Englishman's house is his castle"; an English woman's house is her castle. Atkinson proposed that a woman of full age, living in her own house, should connect her loom or spindles by electric wire to the nearest mill or factory, and then proceed to weave or spin _more_ than the legal limit of nine hours per day. Would the state, under the broadest principles of English constitutional liberty, have the right to come in and tell her not to do so; particularly when the man in the next house remained free? Up to this time there is no doubt that a factory, a large congregation of labor, under peculiar conditions, presents a different question and a different constitutional aspect from that of the individual. This, indeed, is the principle which must justify the constitutional regulation of sweat-shops, as to which we will speak next. The sweat-shop is the modern phrase for a house, frequently a dwelling, tenement, or home, not a factory, and not under the ownership or control of the person giving out the employment. Now a factory may obviously be regulated under ordinary police principles; but when the first great case came up as to regulating labor in a man's own home, even though it was but one floor of a tenement, it was decided by the highest court of New York to be unconstitutional. The case was one concerning the manufacture of cigars, which by the statute was prohibited in tenement houses on any floor partly occupied for residence purposes.[1] Nevertheless it may be questioned whether, with the advancing social feeling in such matters, legislation would not be now sustained when clearly aimed at sanitary purposes, even though it interfered with trades conducted in a man's dwelling house. I hold that it is quite as possible for the arm of the state to interfere to prevent the baking of bread in bedrooms, for instance, as it is to seize upon clothing which has been exposed to scarlet fever. A man's home, under modern theories, is no more sacred against this police power than is his body against vaccination; and the last has been decided by the Supreme Court of the United States.[2] [Footnote 1: In re Jacobs, 98 N.Y. 98. See the author's "Handbook to the Labor Law of the U.S.," p. 151.] [Footnote 2: Massachusetts _v._ Jacobson, 197 U.S. 11.] At all events, legislation may be aimed against sweat-shops which in any sense resemble factories--that is, where numbers of persons not the family of the occupier are engaged in industrial labor; so in Pennsylvania it has been extended to jurisdiction over shops maintained in the back yards of tenements; while in most States the statute applies to any dwelling where any person not a member of the family is employed, and general legislation against sweat-shops already exists in the twelve north-eastern industrial States from Massachusetts to Missouri and Wisconsin, leaving out only Rhode Island. The Massachusetts law as at present forbids work upon clothing except by members of the family in any tenement without license, and thereupon subjects the premises to the inspection of the police, and registers of all help must be kept. Whoever offers for sale clothing made in a tenement not licensed must affix a tag or label two inches long bearing the words "Tenement Made," with the name of the State and city or town in which the garment was made. Moreover, any inspector may report to the State board of health that ready-made clothing manufactured under unhealthy conditions is being shipped into the State, which "shall thereupon make such orders as the public safety may require."[1] In New York the law applies to the manufacture of many articles besides clothing, such as artificial flowers, cigarettes, cigars, rubber, paper, confectionery, preserves, etc. A license may be denied to any tenement house if the records show that it is liable to any infectious or communicable disease or other unsanitary conditions. Articles not manufactured in tenements so licensed may not be sold or exposed for sale, and there is the same law as in Massachusetts as to goods coming in from outside the State, and there is the same exemption of apartments occupied by members of the family, and even then it appears that they are subject to the visitation of the board of health and must have a permit. The Pennsylvania law is similar to the New York law, and in addition, all persons are forbidden to bargain for sweat-shop labor, that is, labor in any kitchen, living-room, or bedroom in any tenement house except by the family actually resident therein, who must have a certificate from the board of health. The Wisconsin law apparently applies to persons doing the work in their own homes, who must have a license like anybody else, and the owner of the building is liable for its unlawful use. The Illinois and Maryland laws are similar to the New York law, while the Michigan statute resembles that of Wisconsin, apparently applying to members of the family as well. The Missouri law forbids the manufacture of clothing, etc., in tenements by more than three persons not immediate members of the family, while the New Jersey and Connecticut statutes content themselves with making such manufacture by persons not members of the family subject to inspection. [Footnote 1: Massachusetts R.L., 106, secs. 56 to 60 inclusive.] It is a curious commentary that the very dream of the social reformers of only twenty years ago is so rudely dispelled by the march of events; for in the late nineties it was the hope of the enthusiast, particularly the student in electrical science, that the factory system might in time be done away with, and by the use of power served from long or short distance over wires to a man's own habitation, all the industries of manufacture might be carried on in a man's own home--just as used to be the case with the spinners and weavers of olden time. Far from being a hope, it turns out that this breeds the very worst conditions of all, and the most difficult to regulate by law. For modern homes for the most part are not sanitary dwellings in the country, but single floors or parts of floors in huge tenement houses in great cities. It is probable to-day, therefore, that there is a perfect reversal of opinion, and that the social reformer now dreams of a world where no work is permitted in the home, other than ordinary domestic avocations, but all is compelled to be done in factories under the supervision of public authorities--a splendid example of the dangers of hasty legislation; for had we carried into law the eager desire of the reformers of only twenty years since, we should, it appears, have been on a hopelessly wrong track. It should be noted, however, that the reform of conditions is very largely arrived at by a different path--that of the _building_ laws in our cities. No more arbitrary rule exists to-day or was ever in history than the despotic sway of a board or commission created under modern police-power ideas. In everything else you have a right to a hearing, if not an appeal to the common-law courts and a jury; but the power of a building inspector is that of an Oriental despot. He can order you summarily to do a thing, or do it himself; or destroy or condemn your property; and you have no redress, nor compensation, nor even a lawsuit to recover compensation. Therefore, if the sweat-shop reformers may not constitutionally regulate the conditions and business of sweating so far as they would like to go, they can turn about and directly regulate the actual building of residences where the trade is carried on. They can require not only so many cubic feet of air per person in the sweat-shop, but so many cubic feet of air per person in every bedroom; as Ruskin said, not only, of grouse, so many brace to the acre, but of men and women--so many brace to the garret. A California law[1] once made it a criminal offence for any person to sleep with less than one thousand feet of air in his room for his own exclusive use! It is indeed a crime to be poor. [Footnote 1: See Ah Kow, Nunan, 5 Sawyer, 552.] This legislation to reform sweat-shops is a field which has been almost entirely cultivated by what I have termed the moral reformers, with little or no help from organized labor. One's observation is that organized labor has been mainly concerned with the price of wages, the length of hours, and with the closed shop; it has devoted very little of its energies to factory or trade _conditions_, except, indeed, that it has been very desirous of enforcing the union label, on which it asserts that union-made goods are always made under sanitary and moral conditions, and implies that the goods of "scab" manufacturers are not so. The usual sweated trades in this country are the manufacture of clothing, underwear, tobacco, and artificial flowers. There has also been considerable regulation of laundries and bakeries, but not because they are what is commonly called sweated trades. The bulk of factory legislation is too vast for more than mention in a general way. It fills probably one-fourth in mass of the labor laws of the whole country, and applies in great and varying detail to the general condition of factories, workshops, and in most States to large stores--department stores--using the word in the American sense. It may be broadly analyzed as legislation for the construction of factories, for fresh air in factories, for general sanitary conditions, such as the removal of dust and noxious gases, white-washing, sanitary appliances, over-crowding, stair-cases, fire-escapes, and the prohibition of dangerous machinery. As has been said, it was begun in Massachusetts in the fifth decade of the last century, based originally almost entirely on the English factory acts, which were bitterly attacked by the _laissez-faire_ school of the early nineteenth century, but soon vindicated themselves as legitimate legislation in England, although not even there--still less in our States--have we gone so far as the Continental countries. Closely connected with this may be mentioned that vast domain of law which is known as employers' liability. Under the old strict common-law rule, a servant or employee could never recover damages for any injury caused in whole or in part by his own negligence, by the negligence of a fellow servant or even by defective machinery, unless he was able to prove beyond peradventure that this existed known to the employer and was the sole and direct cause of the accident. As is matter of common knowledge, the tendency of all modern legislation, particularly the English and our own, has been to chip one corner after another off these principles. The fellow-servant rule has been very generally abolished by statute, or in many States fellow servants have been defined and divided into classes so that the master is not relieved of liability when the injury to the servant is caused by the negligence of a servant not in actual fact his fellow, _i.e._, employed with him in his own particular work. In like manner the exemption for contributory negligence has been pared down and the liability for dangerous or defective appliances increased, practically to the point that the master becomes the insurer of his machinery in this particular. The recent English statute goes to the length of putting the liability on the employer or on an employment fund in all cases. The writer is strongly of opinion that this radical reform is, so far as constitutional, the end to be aimed at. The immense expense and waste caused by present litigation, the complete uncertainty both as to liability and as to the amount of damages, the general fraud, oppression, and deceit that the present system leads to, and finally its hideous waste and extravagance, are all reasons for doing away with it entirely. He believes that for the employer's own benefit if there were a statute with a definite scale of damages, providing definitely, and as part of the employment contract if necessary, with a certain small deduction from the wages, that there should be insurance, that the master should be actually liable on a fixed scale for all injuries suffered while in his employment not in disobedience to his orders or solely and grossly negligent, it would be far better both for employer and employee. To-day it is possible that in many cases the employee gets no damages or is cheated out of them, or they are wasted in litigation expense (the Indiana Bar Association reported this year that only about thirty per cent. of the damages actually recovered of the employer reaches the party injured); while on the other hand the master can never know for how much he is going to be liable, and in the rare cases which get to a jury they are apt to find an excessive verdict. It is the custom with most gentlemen to pay a reasonable allowance to any servant injured while in their employ, unless directly disobedient of orders. There is no practical reason why this moral obligation should not be embodied in a statute and extended to everybody. The scale of damages should of course be put so low as not to encourage persons to expose themselves, still less their own children, to injury in the hope of getting monetary compensation. But although in India we are told the natives throw themselves under the wheels of automobiles, it is not probable that in American civilization there would be serious abuse of the law in this particular. Five thousand dollars, for instance, for loss of life or limb or eye, with a scale going down, as does the German law, to a mere compensation for time lost and medical attendance in ordinary injuries, would be sufficient in equity and would surely not encourage persons voluntarily to maim themselves. The next great line of legislation concerns the mode of payment of wages. The _amount_, as has been said, is never regulated; but it has been customary for nearly a century for the law to require payment in cash, or at least that it be not compulsorily made in goods or supplies, or still worse in store orders. This line of legislation is commonly known as the anti-truck laws and exists in most States, but has been strenuously opposed in the South and Southwest as interfering with the liberty of contract, so that in those more conservative States the courts have very often nullified such legislation. It may be summarized as follows: (1) Weekly or time payment laws. These exist in more than half the States, and are always constitutional as to corporations, but are possibly unconstitutional in all States except Massachusetts when applied to private employers. (2) Cash-payment laws, requiring payments to be made in actual money. These statutes are commonly combined with those last mentioned and are subject to the same constitutional objections. As a part of them, or in connection with them, we will put the ordinary anti-truck laws--that is, legislation forbidding payment in produce or supplies or commodities of any kind. Finally, the store-order laws forbidding payment to be made in orders for indefinite supplies on any particular store, still less on a store owned or operated by the company or employer. Such laws have sometimes been held unconstitutional in all particulars, sometimes when they apply only to certain industries, as, for instance, mines. In the writer's opinion they are never constitutional when applied to corporations, nor are they class legislation when applied to mines, for the reason that it is well known that mines are situated in remote districts where there are few stores, and that the maintenance of a company store has not only led to much cheating but to an actual condition of peonage. That is to say, the miners would be held in debt and led to believe that they could not leave the mine or employment until the debt was liquidated. Belonging usually to the most ignorant class, it is matter of common knowledge that this has been done, and that Poles, negroes, or others of the more recent immigrants have been permanently kept in debt to the company store or by advances or in other ways, as for rent or board. (3) Closely allied to such legislation, of course, is the legislation against factory tenements or dwellings, but there is probably less real abuse here, and therefore a greater constitutional objection against laws forbidding houses, especially model houses, to be built and rented by the employer. Such efforts, unfortunately, have not usually been popular. Far from helping labor conditions, they seem to have caused great resentment, as was notably the case in Pullman, Illinois, and very recently in Ludlow, Massachusetts. It may be that the American temperament prefers its own house, and resents being compelled to live in a house, however superior, designed for him and assigned to him by his employer. (4) The next matter which has evoked the attention of philanthropists and the angry resentment of the persons they supposed they were trying to benefit, is that of the benefit or company insurance or pension funds. The principle of withholding, or contracting with the employees to withhold, a small proportion of their wages weekly or monthly to go into an endowment or benefit fund, even when the company itself contributes as much or more, was instituted with sanguine hopes some forty years ago, first in the great Calumet & Hecla Copper Company, and then in some of the larger railroads; and was on the point of meeting general acceptance when it evoked the hostility of organized labor, which secured legislation in Ohio and other States making it a crime, or at least unlawful, for either side to make a contract whereby any part of the wages was taken or withheld for such purposes. The German theory of old-age pensions is based upon this principle; but it is so unpopular in America that frequently in the South, when things are done for the workmen, they are hardly permitted to know it; a pretence, at least, is made that their own contributions are the entire support of the hospital, library, reading-room, or whatever it may be, when, in fact, the lion's share is borne by the company. There is no doubt that the American laborer resents being done good to, except by himself; and is organized to resent any system of beneficence to the point of making it actually prohibited by the law. Much of the legislation described in this chapter is wise, and probably all of it is wise in intention. Yet, in closing, one cannot resist calling attention to the unforeseen dangers that always attend legislation running counter to the broad general basis of Anglo-Saxon civilization. One need make no fetich of freedom of contract to believe that laws aimed against it may hit us in unexpected ways. For one famous example, the cash weekly-payment law in Illinois existed in 1893. In that year there was a great panic. Nobody could obtain any money; mills and shops were closing down, particularly in Chicago. Everybody was being thrown out of employment, and distress to the point of starvation ensued. In the very worst days of that panic some of the largest and most charitable employers of labor met their employees in a monster mass meeting, and reported that while they could not pay in full and nothing apparently was in prospect but an actual shutdown, they had succeeded in getting enough cash to keep all their employees, provided they would take weekly half what was owing to them in money, and the short-time notes or obligations of the firms, or even of banks, for the remainder. The offer evoked the greatest enthusiasm, was unanimously accepted by the thousands of employees, and amid great rejoicing the meeting adjourned;--only to find by the advice of their counsel next morning that under the laws of the State of Illinois such a settlement was made a crime, and that for every workman who received his wages each week only half in cash, the employer would be liable to a one-hundred-dollar fine, and thirty days' imprisonment. The great reform, not of legislation but of condition, in the labor question, is unquestionably to arrive at a status of _contract_. Hitherto the principle that seems to have been accepted by organized labor, at least in America, is that of being organized for purposes of offence, not for defence; like a mob or rabble which can attack united, but retreats each for himself; which demands, but cannot give; which, like a naughty child or person _non compos_, is not responsible for its own actions. Still there is, as yet, no legislation aimed at or permitting a definite contract in ordinary industrial employment; although there are a few laws which provide that when the employee may not leave without notice, the employer may not discharge him without a corresponding notice except for cause. As relating mainly to strikes or concerted action, the question of arbitration and conciliation laws will be left for the next chapter; but we may close our discussion of individual legislation by calling attention to the striking attempt to revive mediaeval principles of compulsory labor in certain avocations and in certain portions of this country. The cardinal rule that the contract of labor may not be compelled to be carried out, that an injunction will not issue to perform a labor contract, or even in ordinary cases against breaking it, is, of course, violated by any such legislation; but ingenious attempts have been made to get around it in the Southern States. This world-wide problem is really rather a racial problem than an economic one amongst Anglo-Saxons. The inability of the African and the Caucasian to live side by side on an equality largely results from this economic 'question' which, broadly stated, is that the Caucasian is willing to work beyond his immediate need voluntarily and without physical compulsion; the African in his natural state is not. The American Indian had the same prejudice against manual labor; but rather that, as a gentleman, he thought himself above it; and his character was such that he always successfully resisted any attempts at enslavement or even compulsory service. The negro, on the other hand, is not above such work, but merely is lazy and needs the impulse of actual hunger or the orders of an overseer. We are, of course, speaking of the mass of the people, in their natural state, before any enlightenment gained by contact with more civilized races. The whole question is discussed on its broadest lines by Mr. Meredith Townsend in his luminous work, "Asia and Europe." He seems hopelessly to conclude that there is no possibility of white and black permanently living together as part of one industrial civilization unless the latter race is definitely under the orders of the former. Without assenting to this view it may be admitted that it is one which has very largely prevailed in the Southern States, and the difficulty there is, of course, with agricultural labor. So fast as the negro can be made a peasant proprietor, the question seems to be in a measure solved; but it is alleged to be almost impossible to get the necessary labor from negroes when done for others, under contract or otherwise. There is, therefore, a mass of recent legislation in the Southern States which we may entitle the _peonage_ laws, which range from the highly objectionable and unconstitutional statute compelling a person to carry out his contract of labor under penalty as for a misdemeanor, to the more ingenious statutes which get at the same result by the indirect means of declaring a person guilty of breaking a contract under which he has acquired money or supplies punishable as for fraud. There are also statutes applying and very greatly extending the old common-law doctrine of loss of service; making it highly criminal for a neighbor to incite a servant or employee to break his contract or even to accept the work of a laborer without ascertaining that he has not broken such contract, as, for instance, by a certificate of discharge from his last master. These laws, it will be seen, differ in no particular from the early labor laws in England, which we carefully summarized for this purpose; except, indeed, that they do stop short of the old English legislation which provided that when a laborer broke his contract or refused to work he could be committed before the nearest magistrate and summarily punished. Even this result, however, has been arrived at by the more circuitous and ingenious legislation of Southern States such as in Georgia, cited in the charge to the Grand Jury.[1] The principle of this elaborate machinery is always that money advances, or supplies, or a lease of a farm for a season or more, or the loan of a mule, having first been made under written contract to the negro, the breaking of such contract or the omission to repay such advances, is declared to be in the nature of fraud; the entering into such contract with intention to break it is declared to be a misdemeanor, etc., etc. The negro refusing to carry out his labor contract is then cited before the nearest magistrate, who imposes under the statute a nominal fine. The negro, being of course unable to pay this fine, is remanded to the custody of his bondsmen, who pay it for him, one of them of course being the master. The negro leaves the court in custody of his employer and carries away the impression with him that he has escaped jail only by being committed by the court to his employer to do his employer's work, an impression possibly not too remote from the fact. It is easy to see how to the African mind the magistrate may appear like an Oriental cadi, and how he may be led to carry out his work as submissively as would the Oriental under similar circumstances. [Footnote 1: Jaremillo _v._ Parsons, 1 N.M. 190; _in re_ Lewis, 114 Fed. 963; Peonage cases, 123 Fed. 671; United States _v._ McClellan, 127 Fed. 971; United States _v._ Eberhard, 127 Fed. 971; Peonage cases, 136 Fed. 707; charge to jury, 138 Fed. 686; Robertson _v._ Baldwin, 165 U.S. 275; Clyatt _v._ United States, 197 U.S. 207; Vance _v._ State, 57 S.E. 889, Bailey _v._ Alabama, 211 U.S. 452; Torrey _v._ Alabama, 37 So. 332.] There can be no question, except in the minds of those utterly unfamiliar with the tropics and Southern conditions generally, of the difficulty of this labor problem throughout the world. It has appeared not only in our Southern States but in the West Indies and South Africa--in any country where colored labor is employed. The writer knows of at least one large plantation in the South where many hundred negroes were employed to get in the cotton crops, and the employer was careful never to deliver their letters until the season had terminated; for on the merest invitation to attend a ball or a wedding in some neighboring county, the bulk of the help would leave for that purpose and might or might not return. Railway labor is not so difficult, because the workmen commonly work in gangs under an overseer who usually assumes, if he is not vested with, some physical authority; but the case of the individual farmer who is trusted upon his own exertions to till a field or get in the crop seems to be almost impossible of regulation under a strict English common-law system. Farming on shares appears to be almost equally unsatisfactory. The farmer gets his subsistence, but the share of the proprietor in the crop produced is almost inappreciable. In closing this chapter reference should be made to a large amount of American legislation, most of which was absolutely unnecessary as merely embodying the common law. Still it has its use in extending the definition of the "unlawful act." It will be remembered that one of the three branches of conspiracy was the combination to effect a lawful end by unlawful acts. Now many of the States have statutes declaring even threats, or intimidation without physical violence, to be such unlawful act. It may possibly be doubted whether it might not have been so held at the common law; but such legislation has always the advantage of getting a uniform line of decisions from all the judges. The New York statute passed many years ago may serve as a sample: It provides in substance that any threat or intimidation or abusive epithets or the hiding of tools or clothes, when done even by one individual, is an unlawful act; therefore when strikers, although engaged in a lawful strike, as to raise their own wages, or any one of them, intend or do any such act, they become guilty of unlawful conspiracy. This is probably the only legislation on such matters which adds anything to the common law. Many of the States, usually Western States--apt to be more forgetful of the common law than the older Commonwealths--have been at pains to pass statutes against blacklists. Such statutes are entirely unnecessary, but as they relate to combinations they will be considered in the next chapter. From the official report of the U.S. government, prepared by the Commission of Labor in 1907, it appears that twenty States and Territories, including Porto Rico, have provisions against intimidation, of which the best example is the New York statute quoted above. Alabama and Colorado have express statutes against picketing, other than the general statutes against interference with employment. Nineteen other States, of which, however, only a few--Massachusetts, Michigan, Oregon, Texas, and Utah--are the same, have provisions against the coercion of employees in trading or industry, usually to prevent them from joining unions, but such statutes are also levelled against the compelling them to buy or trade in any shop, or to rent or board at any house. Five States have statutes prohibiting the hiring of armed guards other than the regular police, and especially the importing such from other States, Massachusetts and Illinois among the number, though none of the five are so radical as the later statute of Oklahoma quoted below. Statutes for the enforcement of the labor contract exist usually only in the South, but we find a beginning of similar legislation in the North, both Michigan and Minnesota having statutes making it a misdemeanor to enter into a labor contract without intent to perform it in cases where advances are made by way of transportation, supplies, or other benefits. The new anti-tip statute or law forbidding commissions to any servant or employee is to be found in Michigan, Wisconsin, and other States (see page 155 above). A few States require any employer to give a discharged employee a written statement of the reason for his discharge, but such statutes are probably unconstitutional. Colorado has the extraordinary statute forbidding employees to be discharged by reason of age. The common law of loss of service is strengthened generally in the Southern States by statutes against the enticing of employees. Public employment offices, as well as State labor bureaus, are now maintained in nearly all the States. Examinations and licenses are now required in the several States of electricians, engineers, horse-shoers, mining foremen, elevator operators, plumbers, railroad employees, stationary firemen and engineers, and street railway employees, in addition to the trades enumerated on page 147. All the Northeastern States except Maine and Vermont, and Maryland, Delaware, West Virginia, Alabama, Missouri, Tennessee, Wisconsin, Michigan, Illinois, Indiana, South Dakota, and Washington have general factory acts, and all the mining States have elaborate statutes for the safety of mines. New York and Wisconsin have statutes forbidding or making illegal labor unions which exclude their members from serving in the militia. Connecticut and Massachusetts have laws to facilitate profit-sharing by corporations. Such statutes would seem hardly necessary, as profits may be shared or stock distributed or sold without a law to that effect; if it be regarded as part of the reward of wages, no injunction would be granted to protesting stockholders. Fifteen States and Territories, including Porto Rico, have laws for the protection of employees as members of labor unions, and five as members of the national guard or militia, similar to the New York statute just mentioned. Nearly all the States have laws for the protection of employees as voters, as by requiring half holidays or reasonable time to vote, or that their pay should not be given them in envelopes upon which is printed any request to vote or other political material. Nearly all the States require seats for female employees, and New Jersey requires seats for horse-car drivers. Five States have general provisions regulating the employment of women; ten forbid their employment in bar-rooms (see page 226 above); three regulate their hours of labor to an inequality with men; and most of the States forbid females to be employed in mines or underground generally, or, as we have noted above, in night labor. California, Illinois, and Washington provide that sex shall be no disqualification for employment. Four States, among them Illinois, require employers seeking labor by advertisement to mention (if such be the case) that there is a strike in their establishment; twelve States (see above, page 231) have so far tackled the sweat-shop problem, while practically every State in the Union makes wages a preferred claim in cases of death or insolvency of the employer. There is, however, one matter we have reserved for the last, because it is one of the two or three points about which the immediate contest before us is to rage. That is the case of individual discharge. It is elementary that just as an employee may leave with cause or without cause, so an employer may discharge without cause or with cause, nor is he bound to state his reasons, and certain statutes requiring him to do so with the object of avoiding a blacklist have been declared unconstitutional in Southern States. But organized labor is naturally very desirous of resenting the discharge of anybody for no other reason than that of being a union man. In fact it is not too much to say that this, with the legalization of the boycott, are the two great demands the unions are now making upon society. Therefore, statutes have been passed in many States making it unlawful for the employer to make it a condition of employment that the employee should not be a member of a union; or to discharge a person for the reason that he is a member of a union. And closely connected with this is the combination of union employees to force an employer to discharge a man because he is not a member of a union. This last will come logically under the next chapter covering combinations and is not yet the subject of any statute. Now the difficulty of these statutes, about the discharge of union labor, is that it is almost impossible to go into the motive; a man is discharged "for the good of the service." It is easy, of course, to provide that there should be no written or definite contract on the matter; but it is not easy to punish or prohibit the discharge itself without such contract. Such legislation has, however, been universally held unconstitutional, so that at present this must be the final word on the subject. The right of the employer to employ whom he likes and to discharge whom he likes and make a preference, if he choose, either for union or non-union labor, is one which cannot be taken away from him by legislation, according to decisions of the Supreme Courts of Missouri, New York, and the United States. Therefore, as the matter at present stands, the constitutions, State and Federal, must be amended if that cardinal right of trade and labor is to be interfered with. In closing it may be wise to run over the actual labor laws passed in the States during the last twenty years, mentioning the more important lines of legislation so as to show the general tendency. Beginning in 1890 we find most of the statutes concern the counterfeiting of union labels, arbitration laws, hours of labor in State employments, weekly payment laws, the preference of debts for labor in cases of insolvency, the prohibition of railroad relief funds, the hours of women and children in factories, seats for women in shops, the restriction of prison labor, dangerous machinery in factories, protection in mines, and the incorporation of trades-unions. Mechanics' lien laws are passed in large quantities every year and are the subject of endless amendment. We will, therefore, leave this out for the rest of our discussion as after all affecting only the owners of real estate. In 1891 we find more laws regulating or limiting the hours of labor of women and children, prohibiting it entirely in mines; several anti-truck laws; two laws against the screening of coal before the miner is paid, and in Massachusetts, laws against imposing fines for imperfect weaving and deducting the fine from the wages paid. Pennsylvania thinks it necessary to enact by statute that a strike is lawful when the wages are insufficient or it is contrary to union rules to work, which latter part is clearly unconstitutional. There is one statute against boycotting and three against blacklisting. In 1892 there are more laws limiting the hours of labor of women and children to fifty-eight, or in New Jersey, fifty-five, hours a week; laws against weavers' fines, and restricting the continuous hours of railway men. The sweat-shop acts first appear in this year, and the statutes forbidding the discharge of men for belonging to a union or making a condition of their employment that they do not belong to one. In 1893 the laws establishing State bureaus of labor become numerous. Four more States adopt sweat-shop laws, and there is further regulation of child labor. Six States adopt statutes against blacklisting. In 1894, being the year after the panic, labor legislation is largely arrested. New York adopts the statute, afterward held constitutional, requiring that only citizens of the United States should be employed on public works, and statutes begin to appear to provide for the unemployed. There is legislation also against intimidation by unions, against blacklisting, and against convict-made goods. In 1895 there is still less legislation; only a statute for State arbitration, against payment of wages in store orders, against discrimination against unions, and for factory legislation may be noted. In 1896 there are a few statutes for State arbitration and weekly payment, for regulating the doctrine of fellow servants, and some legislation concerning factories and sweat-shops. In 1897 California provides a minimum wage of two dollars on public contracts, and Kansas adopts the first statute against what are termed indirect contempts; that is, requiring trial by jury for contempts not committed in the presence of the court. There is a little legislation against blacklisting, and Southern States forbid the farming out of convict labor. In 1898 Virginia copies the Kansas statute against indirect contempts, and one or two States require convict-made goods manufactured outside the State to be so labelled, which statutes have since been held unconstitutional as an interference with interstate commerce. In 1899 the question of discrimination against union labor becomes still more prominent and it is in some States made a misdemeanor to make the belonging or not belonging to a union a condition of employment. All these statutes have since been held unconstitutional. In 1900, a year of great prosperity, there is almost no labor legislation. In 1901 we only find laws establishing free employment bureaus, except that California provides a maximum time for women and children of nine hours a day in both manufacturing and mercantile occupations, and a minimum wage upon all public work of twenty cents an hour. In 1902 Colorado overrules her Supreme Court by getting by constitutional amendment an eight-hour day in mines. Massachusetts passes a joint resolution of the Legislature asking for a Federal constitutional amendment which shall permit Congress to fix uniform hours of labor throughout the United States, and Kentucky and other Southern States begin to legislate to control the hours of labor of women and children. In 1903 this movement continues and in the Northwestern States, Oregon and Colorado, the length of hours of labor of women of all ages is generally limited. Weekly payments and anti-truck laws are adopted. Montana forbids company boarding-houses and Colorado makes the striking attempt to do away with the so-called dead line; that is to say, a statute forbidding any person to be discharged by reason of age, between the years of eighteen and sixty. California follows Maryland in abolishing the conspiracy law, both as applied to employers and employees.[1] It does not seem that in either State this statute has yet been tested as class legislation. Legislation against the open shop continues in far Western States, while Minnesota makes it a misdemeanor for an employer to exact as a condition of employment that the employee shall not take part in a strike. [Footnote 1: See the next chapter.] In 1904 there is little legislation. Far Western States go on with the protection of child labor, particularly in mines, and Alabama adopts a general statute against picketing, boycotting, and blacklisting. In 1905 we first find legislation against peonage or compulsory labor in the Southern States, North Carolina and Alabama. The celebrated constitutional amendment of New York is enacted, which gives the Legislature full power to regulate wages, hours, and conditions in public labor. (See above, p. 161.) Further regulation of factories and mines goes on, with State employment agencies and reform of the employers' liability laws. Colorado and Utah prohibit boycotts and blacklisting, and in one or two States corporations are required to give every person discharged a letter stating the reason of his discharge, which statute was since held unconstitutional in Georgia. In 1906 the usual sanitary legislation goes on. Massachusetts adopts an eight-hour law for public work. Arkansas and Louisiana attempt legislation preventing the violation of contract by persons farming on shares, or the hiring of farm laborers by others, and Massachusetts establishes free employment bureaus. In 1907 four more Southern States attempt laws to control agricultural labor; the factory acts and child-labor laws continue to spread through the South; New York largely develops its line of sweat-shop legislation, and more child-labor laws and laws prohibiting the work of women in mines are introduced in the South. In 1908 Oklahoma adopts the Kansas contempt statute, and Virginia provides for appeals to the Supreme Court in contempt cases. South Carolina makes it a misdemeanor to fail to work after being employed on a contract for personal services, or for the employer on his side to fail to carry it out. Oklahoma adopts a curious strike statute which, besides the usual provision for the closed shop, makes it a felony to bring workmen, _i.e._, strike-breakers, from other places in the State or from other States under false pretences, including, in the latter, concealment of the existence of the strike; and makes it a felony to hire armed men to guard such persons. With this climax of labor legislation our review may properly end, but the reader will not fail to note the advantage that may be derived from experience of these extraordinary statutes as they are tried out in the different States and Territories. It could be wished that some machinery could be provided for obtaining information as to their practical working. The legislation of 1909 was principally concerned with the matter of employers' liability for accidents, a conference upon this subject having been held by three State commissions, New York, Minnesota, and Wisconsin. Massachusetts extended the act of 1908 permitting employers and employees to contract for the compensation of accidents; and Montana established a State accident insurance for coal-miners. California and Montana exempted labor in a large degree from the operation of the State anti-trust laws; but Washington adopted a new statute defining a conspiracy to exist when two or more persons interfere or threaten to interfere with the trade, tools, or property of another, and proof of an overt act is not necessary. North and South Carolina, Texas, and Connecticut passed the usual statute protecting employees from being discharged because of membership in a trades-union, which, as we have said, has been held unconstitutional wherever contested. Arizona, California, Idaho, Washington, Wyoming and Nevada enacted or amended eight-hour measures for employees in mines, but little was accomplished for children in the Southern States.[1] [Footnote 1: See "Progressive Tendencies in the Labor Legislation of 1909," by Irene Osgood, in the _American Political Science Review_ for May, 1910.] The labor-injunction question has been recently covered by an admirable study prepared by the Massachusetts Bureau of Statistics and published in December, 1909. The investigation covers eleven years, from 1898 to 1908, in which there occurred two thousand and two strikes. In sixty-six of these strikes the employers sought injunctions and in forty-six cases injunctions were actually issued. In only nine cases were there proceedings for contempt of these injunctions, while only in two cases out of the two thousand were there any convictions for contempt of court. In eighteen cases injunctions were sought to prevent employees from striking, but only in four of these were they granted, and one of these was later dissolved. Seven bills were brought by employees against unions for interference with their employment, etc., and in three cases unions sought injunctions against other unions. In one case a union brought a bill against an employer and in one case an employer sought an injunction against an employers' association. Under a decision of the Massachusetts Supreme Court it was declared unlawful for a trade-union to impose fines upon those of its members who refused to obey its orders to strike or engage in a boycott. In 1909 a bill was introduced in the Legislature with the special object of permitting this, but it failed of passage. The _Bulletin_ contains a brief history of equity jurisdiction in labor cases and reprints all the decisions of the Supreme Court of Massachusetts down to the year 1909, and the actual injunctions issued by Superior Courts in five late cases, with a chronological summary of proceedings in cases concerning industrial disputes in all Massachusetts courts for the eleven years covered by the report. The matter of labor legislation is of such world-wide importance that a word or two may not be out of place concerning recent legislation in other countries. Other than factory and sweat-shop acts and hours of labor laws, there are three great lines of modern legislation in Europe, North America, and Australasia: employers' liability, old-age pensions, minimum wage. On the first point, the tendency of modern legislation, as has been intimated, is to make the employer liable in all cases for personal injuries suffered in his employ without regard to contributory negligence or the cause of the accident. That is, it is in the nature of an insurance which the employer is made to carry as part of his business expenses. It has the great advantage of doing away with litigation and confining his liability to reasonable amounts, and in the writer's opinion is in the long run for the benefit of the employer himself. There is one exception. The employer is not liable when the injury was caused by the wilful misconduct of the workman injured. Old-age pensions, or State insurance against old age as well as disability, now exist in several countries, notably Germany, New Zealand, and England. The German law[1] is much the most intelligent and the least communistic in that it provides that half the fund is raised by deductions made from the wages of the workmen themselves. It applies to all persons, male and female, employed under salary or wages as workmen, journeymen, apprentices, or servants; also to all industrial workmen, skilled laborers, clerks, porters, and assistants; also to all other persons whose occupation consists principally in the service of others, such as teachers who do not receive an annual salary of more than five hundred dollars; also to sailors and railway employees; also to domestic servants. No one is obliged to insure himself who is over the age of seventy, and no one is bound to insure who does not work in a required insurance class for more than twelve weeks or fifty days in each year. When women get married, they insist on reimbursement of one half of all the insurance assessments they have paid up to that time, provided such assessments amount to two hundred weeks, or four years--a provision which must very much help out marriages, and from which the amusing deduction may be drawn that the average value of a husband in Germany is considered to be about one-half the expense of supporting his wife for a period of two hundred weeks, or four years. On the other hand, the law has the effect of postponing marriage for the first four years of a woman's employment, as it practically imposes a penalty upon a woman marrying before four years from the time when she begins to pay to the State insurance money. [Footnote 1: U.S. Industrial Commission Reports, vol. V, pp. 228-241.] The English old-age pension law is a mere gratuity in the nature of outdoor relief, giving to everybody who has reached a certain age, without reference to any previous service, tramps or drones as well as workmen. It is a law indefensible in principle and merely the accident of a radical government. It provides that every person over seventy whose yearly means do not exceed thirty-one pounds ten shillings (_i.e._ income from property or privilege) and is not in "regular receipt of poor relief" and has not "habitually failed to work according to his ability, opportunity and need" nor been sentenced to any imprisonment for a criminal offence--all to be determined by a local pension committee with appeal to the central pension authority--shall receive a pension of five shillings a week when his annual means do not exceed twenty-one pounds, that is, thirteen pounds a year, down to one shilling a week when they exceed twenty-eight pounds seventeen shillings six pence. The New Zealand law is more intelligent. It extends old-age pensions to every person over the age of sixty-five who has resided thirty-five years in the colony and not been imprisoned for a criminal offence, nor has abandoned his wife, nor neglected to provide for his or her children. It does not, however, appear that any previous employment is necessary. The pension amounts to eighteen pounds, say ninety dollars, a year and is not given to any one who has an income of fifty-two pounds a year. The machinery of the law is largely conducted through the post-office and the entire expense is met by the state. That is to say, there is no contribution from the laborers themselves. Austria, Italy, Norway, and Denmark in 1901 had also state insurance systems. The minimum-wage idea has so far been attempted only In New Zealand and in Great Britain.[1] (See above, p. 160.) The New Zealand law of 1899 provided a minimum wage of four shillings per week for boys and girls, and five shillings for boys under eighteen, but the principle has been much extended by a more recent statute. The English law is not yet in active operation, and may or may not receive great extension. It provides in substance for the fixing of a minimum wage in the clothing trade or _any other_ trade specified by the Home Secretary. The obvious probability is that it will, as in New Zealand, soon be extended to all trades. This wage is to be fixed by a board of arbitrators with the usual representation given to each side, and it will doubtless work, as it does in New Zealand, for the elevation of wages, as such commissions rarely reduce them. [Footnote 1: This, the Trade Boards Act, the 22d chapter of the ninth of Edward VII., enacted October 20, 1909, took effect January 1, 1910. The act applies without specification to ready-made and wholesale tailoring, the making of boxes, machine-made lace and chain-making, and may be applied to other trades by provisional order of the Board of Trade, when confirmed by Parliament. The Board of Trade may make such provisional order applying the act to any specified trade if they are satisfied that the rate of wages prevailing in that trade is exceptionally low as compared with that in other employments, and that the other circumstances of the trade are such as to render the application of the act expedient; and in like manner they may make a provisional order providing that the act shall cease to apply to any trade to which it already was applied. Section 2 provides that the Board of Trade shall establish one or more trade boards for any trade to which the act is to be applied, with separate trade boards for Ireland. These trade boards (section 11) consist of members representing employers and members representing workers in equal proportions, and of certain appointed members. Women are eligible, and the representative members may be elected or nominated as the regulations determine. The chairman and secretary are appointed by the Board of Trade. Such boards are given power to fix minimum rates of wages both for time and piece work, which thereafter must be observed under penalty. There is further a machinery for the establishment of district trade committees. All regulations made by such Boards of Trade shall be laid as soon as possible before both houses of Parliament; but there does not appear to be any other appeal.] Co-operation and profit-sharing, the great hope of the middle years of the nineteenth century, has made little progress in England or the United States since. Such successful experiments as now exist consist principally in offering to the employees the opportunity to buy the stock of the company at a reasonable rate, as in the case of the Illinois Central Railroad and the United States Steel Company. Many mills, however, give a certain increase in wages at the end of regular periods proportionate to the profits. This technically is what we call profit-sharing. The word "co-operation" should be reserved for institutions actually co-operative; that is to say, where the employees are partners in business with the employers. Of such there are very few in the United States, although there are quite a number in England. In 1901 there were only nineteen co-operative establishments in the United States, most prominent among which are the Peacedale Woolen Mills in Rhode Island; the Riverside Press in Cambridge; Rand, McNally & Co., Chicago; the Century Company, of New York; the Proctor & Gamble Soap Co., of Cincinnati; the Bourne Mills, of Fall River, and the Pillsbury Flour Mills, of Minneapolis. Yet these institutions are really profit-sharing rather than co-operative, for the return is merely an extra cash dividend to employees who have no voice in the management. Mr. Oilman in his book, "A Dividend to Labor," tells us that there are thirty-nine other cases at least where profit-sharing once adopted has been abandoned. On the other hand, in Great Britain there were in 1899 one hundred and ten important co-operative productive establishments. There are many more on the Continent. Arbitration laws are also far more developed and successful in European and Australasian countries than in Great Britain or the United States, although the first English act concerning arbitration was passed as early as 1603. In the first year of Queen Anne, 1701, was the first act referring specially to arbitration of labor, and the next, Lord St. Leonard's act, in 1867, which attempted to establish councils of conciliation, something after the pattern of the French _conseils de prudhommes_; but in 1896 these acts were repealed and the Conciliation Act of the 59th Victoria, chapter 30, substituted. It provides that the boards of arbitration may act of their own motion in so far as to make inquiry and take such steps as they deem expedient to bring the parties together, and upon application of either side may appoint a conciliator, and on the application of both sides, appoint an arbitrator. Their award is filed of record and made public, but no provision is made for its compulsory enforcement. In France, the legislation is much more intelligent. There the distinction between individual and collective labor is clearly made and within recent years there is elaborate legislation for the settlement of strikes, disputes of the collective class, which we will later describe. For the adjustment of individual disputes, France has long had in her _conseils de prudhommes_ a special system of labor courts that constitutes one of her most distinctive social institutions.[1] These are special tribunals composed of employers and workingmen, created for the purpose of adjusting disputes by conciliation if possible, or judicially if conciliation fails. Appeal from their decisions is made to the tribunals of commerce. The first such council was created in Lyons in 1806, but since they have spread through all France. When the amount involved does not exceed two hundred francs, the judgment of the council is final; above that sum an appeal may be made to the tribunal of commerce. The most important element of all, perhaps, is that these councils have to some extent criminal powers, or powers of punishment. They can examine the acts of workingmen in the industries under their jurisdiction tending to disturb order or discipline, and impose penalties of imprisonment not exceeding three days, having for this concurrent jurisdiction with the justices of the peace. Elaborate arbitration laws also exist in France, and whenever any strike occurs, if the parties do not invoke arbitration the justices of the peace must intervene to conciliate. Still there is no compulsory arbitration except by agreement of both sides. [Footnote 1: See the author's Report to the U.S. Industrial Commission, vol. XVI, page 173.] Similar laws exist in Belgium, Switzerland, Germany, Austria, Holland, New Zealand, Australia, and Canada. The apprentice system still exists in perfection in all European states, including Great Britain, although there most of the unions restrict the number that may be employed. In the United States it has, unfortunately, fallen entirely into disuse. It has already been mentioned that the factory laws, laws regulating the sanitary conditions, etc., of factories and sweat-shops, are far more complicated and intelligent upon the Continent, and even in England, than in the United States of America. Coming finally to what most persons consider the most important line, that of strikes, boycotts, and intimidation, the legislation of the Continent of Europe where common-law principles of individual liberty do not interfere, is, of course, far more complex and far more effective than that of either England or the United States. The principle of combination we leave for the next chapter. In European legislation, where we are met with no constitutional difficulties, we shall expect to find a more paternalistic control by the state, although in France the decree of March 2, 1791, provided that every person "shall be free to engage in such an enterprise or exercise, such profession, art or trade, as he may desire." In Germany an elaborate attempt has been recently made to re-introduce the old guild system made over from its mediaeval form to suit modern conditions, and in other countries where the government does not interfere, the trade guilds, or unions, present insuperable obstacles to any one engaging in their industry who is not a member of the guild or has not gone through the required apprenticeship.[1] [Footnote 1: U.S. Industrial Commission Reports, vol. XVI, p. 9.] The French decree of 1791 freeing labor took effect also in French Switzerland. A most interesting account of the experiment of the Swiss Cantons on freedom of labor and the guild system will be found in the U.S. Industrial Commission Report above referred to.[1] Germany differs from England and France in that the old guild system was never absolutely done away with; in 1807 serfdom was abolished in Prussia, and a decree of December, 1808, apparently under the influence of Napoleon, proclaimed the right of citizens freely to engage in such occupations as they desired. Exclusive privileges and industrial monopolies were abolished by subsequent decrees, and the general movement for the freeing of industry was consummated in 1845 by the labor code of that year, which, by the labor code of 1883, extends over all Germany: "The practice of any trade is made free to all.... The distinctions between town and country in relation to the practice of any handicraft trade is abolished.... Trade and merchant guilds have no right to exclude others from the practice of any trade.... The right to the independent exercise of a trade shall in no way depend upon the sex...."[2] [Footnote 1:_Ibid_., p. 10.] [Footnote 2: _Ibid_., pp. 11 and 12.] It will be seen that the more enlightened European countries arrived, under the influence of Napoleon probably, or the French Revolution, in the early part of the last century, to the point of specifically adopting the English common law of liberty of labor and trade which "organized labor" seems already desirous of departing from; but the German Civil Code goes on to say (Section 611): "By the contract of hiring of services the person who promises service is obliged to render the promised service, and the other party is obliged to the payment of the salary or wage agreed upon. All nature of services may be the subject of the service contract." It would seem, therefore, that the contract may be specifically enforced. So, in France, by the law of 1890, "A person can only bind himself to give his services for a certain time or a special enterprise. The hiring of services made without a fixed duration can always cease at the wish of one of the contracting parties. Nevertheless, the cancellation of the contract at the wish of one only of the contracting parties may give rise to damages." It would appear, therefore, that definite contracts may be specifically enforced, Austria has somewhat similar laws, although a larger proportion of industrial employment is subject to state regulation, and here no employer can employ any workingman without a book or passbook, which serves both as identification and record. Generally in Europe the use of a written contract in labor engagements is far more usual than with us. This, perhaps, makes it easier to enforce such contracts specifically. Nevertheless, I find no specific statute on the subject. Indeed, the Code Napoleon adopts the English law and provides[1] that "every obligation to do or not to do resolves itself into damages in the case of non-performance," while the modern English law act of 1875 provides a special and summary remedy in the county courts for labor disputes whereby when the contract is not rescinded the court may award damages or take security for the performance of the labor contract itself. This, however, does not include domestic servants. Both France and Belgium copy the common law as to slavery, requiring contracts to be for a certain time or a determined work. In Russia, however, contracts may be made for five years. [Footnote 1: _Ibid_., p. 64.] It is still true that no European country outside of Turkey has yet fixed by law the amount of wages in private employments or the minimum amount, though that result is effected by the machinery of arbitration in Great Britain and New Zealand. Continental countries, however, universally legislate as to hours of labor even of adult women, there being no constitutional principle protecting their personal liberty in that particular, although in Belgium and Great Britain the laws do not, as a rule, apply to adult male labor. The hours are generally eleven or twelve, instead of eight or nine as in England or the United States. There is elaborate special regulation of times and conditions in labor in railways, laundries, bakeries, etc. The English law generally divides persons, according to their age, into three classes, adults, young persons (from fourteen to eighteen), or children, and the system is most elaborate. Generally no children under the age of eleven may be employed at all. Sanitary and social regulations are far more intelligent than ours. Generally, the employment of women in factories within four weeks after childbirth is forbidden; and in Switzerland it is forbidden to employ pregnant women in certain occupations dangerous to the health of posterity. The German Civil Code declares that "A married woman has both the right and the obligation of keeping house. She is obliged to attend to all domestic labor and the affairs of her husband in so far as such labor or occupation is usual according to her social condition. She is supreme within her sphere, or at least has power to act or bind her husband in domestic matters, and he cannot limit her powers without a divorce. He may, however, annul any contract made by her for her personal labor with a third party."[1] [Footnote 1: _Ibid_., p. 53.] [Footnote 2: _Ibid_., p. 77.] The anti-truck and weekly-payment laws exist in all countries. Europe generally, particularly Great Britain and the Roman Catholic countries, are handicapped by an infinity of holidays. In Roman Catholic countries they are generally single days, saints' days, etc., scattered throughout the year, but in Great Britain no skilled laborer will work at all for some weeks at a time. The English law against intimidation is the model of the New York statute and most others. It defines in great detail what intimidation is--substantially, that it is violence or threats, the persistently following, the hiding of tools, etc. or the watching or besetting the house or place of business--and menaces, as well as actual violence, are recognized as unlawful and punishable by imprisonment, in Germany, Italy, Sweden, and other countries. Germany and Austria copy the English common law as to enticing from service. There is as yet, however, no evidence in Europe outside of Great Britain of the American tendency to make a special privileged class of skilled or industrial labor. So far as appears, there is no special legislation in any European country which is concerned particularly with the legal or political rights of industrial laborers.[2] There is much more co-operation and sympathy between employers and employees, at least in Continental countries, and possibly for this reason co-operation has proved far more successful.[1] State labor bureaus, state insurance, saving banks, and employment agencies are almost universal throughout the Continent. [Footnote 1: See Oilman's "A Dividend to Labor," Boston, 1899. Jones's "Cooperative Production," Oxford, 1894.] CHAPTER XII COMBINATIONS IN LABOR MATTERS We have now gone over the history of modern legislation in the two great fields of property and personal liberty, and we have generally found that the same principles of jurisprudence govern both. So shall we now find when we come to combinations that there is no difference or distinction in the law between combinations of capital and combinations of individual faculties. In both fields a "combine" is obnoxious, as the untutored mind instinctively feels. Combinations may, of course, be lawful; but the fact that no actually criminal purpose or act can be found against them is not conclusive of their legality. At the risk of wearying the reader I would reiterate my belief that this was one of the greatest juristic achievements of the English common law; and that the question whether it shall be all done away with or retained is the most momentous public question now before us in industrial and social matters.[1] Whether, on the one hand, Standard Oil combinations shall be permitted to the point of universal monopoly of trade and opportunity; or, on the other, close unions built up, even by legislation itself, to an equally impregnable position of monopoly of opportunity, or so as to become a universal privileged guild--are questions to be determined by the same principles; and equally momentous to the future of our republic and of human society as now constituted. And before passing to a review of the legislation itself, I would lay down the principle which I believe to be the one which will ultimately be found to be the controlling test: that of _intent_. The _effect_ (often proposed as the test) is really immaterial as determining the illegality of the combination, except so far as it may be evidence of the probable intention of the participators at its inception. [Footnote 1: Professor Dicey, I find, in his recent book, "Law and Opinion in England," opens this subject with a statement equally strong (Appendix, note 1, pp. 465-6).] For the early English conspiracies were by no means necessarily or usually aimed at the commission of some definite crime; they were rather described to be the conspiracies of great lords for the general "oppression" of a weaker neighbor, for which he sought refuge or protection in the court of chancery. Now, general oppression or wrongdoing, the exclusion from land or labor or property or trade, by a powerful combination, is precisely the moral injury suffered in modern boycotts when there is no actual crime committed. Indeed, one of the earliest kinds of conspiracy expressly mentioned and described in the English statutes is a conspiracy for the maintenance of lawsuits, which by the very definition of the thing must be a combination for an end not in itself unlawful. The American courts have been curiously obscure or vacillating on this point. With their too general forgetfulness of historical legislation and the early common law, they have gone from one extreme to the other, often with a trivial consideration of the importance of the points involved, and always with an entire absence of a universal point of view, of that genius which grasps a question in its entirety and is not confused by irrelevant details. It is only of late when the matter has come before the Federal Supreme Court and the courts of a few States which have been educated by a frequent recurrence of disputes of this sort that we begin again to see the principle clearly, as I shall venture to lay it down here: that the acts of a number of persons combined are to be judged by their _intent_. In individual acts the intent is of no importance except as it turns an accident into a crime; chance-medley for instance into murder, or mere asportation into larceny, or ordinary conversation into slander; yet these few instances serve to show how universal is the recognition of intent in the law and how little difficulty it presents. Juries have very rarely any difficulty in determining this question of intent in individual acts; and in like manner they will have no difficulty when it is recognized as the fundamental test in cases of combination, _i.e._, conspiracy. And for the antiquity of this our law we need but mention a few cases: Rex _v. _ Crispe, cited in the Great Case of Monopolies (7 State Trials 513):" Here was lately an agreement between copperas makers and copperas merchants for the buying of _all_ copperas, and that these copperas makers shall for three years make at so much a ton and restraining them from selling to others"--_held_ a criminal conspiracy; of the tailors of Ipswich (6 Coke 103) where a company of tailors made a by-law to exclude non-members from exercising their trade; and the Lilleshall case (see p. 71 above). Thus in matters of _capital_: is the _first_ intent, the _immediate_ object, to increase profits, to acquire or enjoy property, to enlarge one's business,[1] or is the _first_ intention to destroy a competitor or create a monopoly? So in _labor_ combinations: is the _first_ object to get better terms for the persons combining, an increase of wages or a reduction of hours, improved conditions in factories and shops, etc., etc., or is the _first_ thing they are seeking to do to injure a third person, not concerned in the dispute, or to control the liberty and constitutional right of the employer himself? If the latter, it is "oppression" within the meaning of the early common law, and should be so held to-day. [Footnote 1: What Mr. Cooke calls, in his preface, "the natural incident or outgrowth of some lawful relation." _Combination, Monopolies and Labor Unions_, p. iv.] And not only is this great domain of English law noteworthy because it is so subtle as to grasp the effect of a combination other than that of the individual acts, and the intent of that combination other than its effect, but it is perhaps the only great realm of law which really attempts to carry out the principle of the Golden Rule. In all other matters, if an act be lawful, it remains lawful, although done with the intent of injuring another; it does not usually even give rise to an action for damages; but the great principle of the English law of conspiracy was crystallized two hundred years ago in the classic phrase of Hawkins, in his "Pleas of the Crown," vol. II, p. 121: "There is no doubt that a combination made to the prejudice of a third person is highly criminal at the common law."[1] The usual definition of conspiracy, that is, of unlawful combination, is a combination made for an unlawful purpose or for a lawful purpose using unlawful means; this is to be found in all the text-books; but it should be amplified in accordance with our earliest and deepest law so as to include a combination for the mere purpose of injuring another, or molesting him or controlling him in the exercise of his ordinary lawful rights; and _a fortiori_--as of combinations to enhance the price of food--to injure the public. It is for this reason that the combination of many to diminish the trade of one is an unlawful combination; the combination may be punished although all the acts done are within the letter of the law; and when the conspiracy is evidenced by unlawful acts, the conspiracy may be punished far more severely than the acts could have been punished themselves. We have noted that one of the great attempts of organized labor to-day is to do away with this principle, to provide that no combination should be punished when the acts committed are not punishable in themselves, and that in fact it should be the acts and not the combination which is punishable at all. This, it is true, was enacted by the English Conspiracy and Protection of Property Act of 1875, as to industrial disputes only, in England; and it is just as true that it would be unconstitutional in this country, both under the Federal and State constitutions. Yet the agitation for this revolution in the common law has been successful in Maryland, California, and Oklahoma, though, as has been said, it does not appear that any cases have yet been tried where the exception was pleaded in defence, still less where the statute has been sustained as constitutional. [Footnote 1: "The position cited by Chitty from Hawkins, by way of summing up the result of the cases, is this: 'In a word, all confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person, or his character.' And Chitty adds that 'the object of conspiracy is not confined to an immediate wrong to individuals; it may be to injure public trade, to affect public health, to violate public police, to insult public justice, or to do any act in itself illegal (3 Chit. Crim. Law, 1139)." Quoted by Shaw, Chief Justice of Massachusetts, in Commonwealth _v_. Hunt (4 Mete. Illinois), printed as a Senate Document in the 57th Congress, 1st session (Mass.) III.] It is to be noted that the original English Act of 1875 only did away with the criminal liability and left the victims of the boycott or blacklist free to sue the combination for damages; but by the "Trade Disputes Act," 6 Edward 7, chapter 47 (December 21, 1906) the following paragraph was added: "An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable." And also a clause as to picketing: "It shall be lawful for one _or more[1]_ persons, acting on their own behalf or on behalf of a trade-union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working." [Footnote 1: The italics are our own.] And another upon inducing the breaking of contracts, loss of service: "An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills." Furthermore, after the Taff Vale case, trades-unions were exempted from all liability: "(1) An action against a trade-union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade-union in respect of any tortious act alleged to have been committed by or on behalf of the trade-union, shall not be entertained by any court. "(2) Nothing in this section shall affect the liability of the trustees of a trade-union to be sued in the events provided for by the Trades-Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute. "(3) In this act and in the Conspiracy and Protection of Property Act, 1875, the expression 'trade dispute' means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labor, of any person, and the expression 'workmen' means all persons employed in trade and industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the last-mentioned act, the words 'between employers and workmen' shall be repealed." It is hard to say whether any part of this surprising statute would be constitutional in this country, except the second paragraph (p. 267, above); leaving out even there the words "or more." Certain it is that by it industrial conditions are placed under the sway of the labor unions, and the commerce and prosperity of England now lie in the "hollow of the hand" of those who work with it. This effort to do away with the law of combinations in labor matters with that aimed at forbidding or controlling the injunction in labor disputes, and with also the statutes which give a special privilege to union labor, we have found to be among the most important pieces of modern legislation. Alabama and Colorado have statutes legalizing "picketing," but a similar bill in Massachusetts failed repeatedly of enactment. But when we come to the statutes applying to _combinations_ solely, and defining them, there have been many statutes declaring blacklisting and boycotts to be unlawful--which is merely the common law--and a few statutes especially forbidding them. Thus, by the year 1907, twenty-two States and the United States had statutes against blacklisting, five had statutes against boycotting, ten had adopted laws regulating strikes in cases of railway employment, Minnesota a law forbidding any employer to require as a condition of employment any statement as to the participation of the applicant in a strike for more than one year immediately preceding, Oklahoma a law requiring him to advise new applicants for employment of any labor dispute then pending with him, and to give such notice in his advertisements; which statute barely failed of enactment in Massachusetts. The best definition of the boycott is, perhaps, to be found in the law of Alabama: "Any two or more persons who conspire together for the purpose of preventing any person, persons, firm, or corporation from carrying on any lawful business, or for the purpose of interfering with the same, shall be guilty of a misdemeanor." The most cumbrous is that of Indiana, which, attempting to express the matter in more detail, is far too long to quote.[1] Many acts which are really part of a boycott, or unlawful, _i.e._, sympathetic strikes, will be found under the heading "Intimidation" or "Interference with Employment" in other States; such is the recent statute of Washington (see above, p. 251). Unless the function of a statute be to instruct the ignorant, it would probably be better to forego all such definitions and rely upon the elasticity of the common law. [Footnote: Indiana Revision of 1901, Sec. 3312 M. There is also an elaborate definition of "trusts," "conspiracies," and "boycotts" in chapter 94 of the Laws of Texas, 1903.] As an example of the most advanced labor legislation we may briefly digest the Oklahoma laws of 1907-8: By the Act of May 29, 1908, two hours must be allowed by every corporation or individual employer to his employees to vote, and it is made a misdemeanor to in any way influence his vote; and there is a general labor code enacted May 22, 1908, which, with its supplements, is perhaps the most radical labor legislation to be found in the United States. After establishing a State commissioner of labor, a board of conciliation and arbitration, and free employment offices, all of which are usual in other States, there is an elaborate chapter on factory regulation and one upon mine regulations, and to protect persons working on buildings, railroads, steam boilers, etc., and a carefully drawn statute regulating the labor of children. Then there are other provisions which are more unusual. The Canadian statute substantially is enacted as to strikes: "whenever there shall exist a strike or lockout where (in the judgment of the State Board of Conciliation) the general public shall appear likely to suffer injury or inconvenience, and neither party consents to an arbitration," then the board, having failed to effect a conciliation, may proceed on its own motion to make investigation and propose a settlement, with recommendations to both parties, and presumably publish the same. It has, of course, no power to enforce a settlement, but may compel testimony, etc. (Article II, section 4.) Private employment offices are carefully regulated, the fees limited to two dollars, and the money must be returned if no place is found, with careful provisions against sending help to immoral resorts. The compelling of an agreement, either written or "verbal,"[1] not to join, a labor union as a condition of obtaining or continuing in employment is made a misdemeanor, punishable with one thousand dollars fine and twelve months imprisonment. [Footnote 1: A common vulgarism; the law probably means "oral."] Section 2 of this act (June 6, 1908) copies the _older_ English statute of 1875; that is to say, it does away with all _criminal_ liability for conspiracies in labor matters, and it further provides that no "such agreement, combination, or contract be construed as in restraint of trade or commerce; nor shall any restraining order or injunction be issued with relation thereto, provided only that nothing in this act shall be construed to authorize force or violence." We have already commented on the possible unconstitutionality of this act. Section 3 makes it unlawful for anybody to induce or persuade workmen to change from one place to another (except presumably the labor unions themselves), or to bring workmen into the State by means of any false or deceptive representations, false advertising or false pretences, or by reason of the existence of a strike or other "trouble." Failure to state in an advertisement, proposal or contracts for the employment of workmen that there is a strike or other "trouble" is made a criminal offence, punishable with a year's imprisonment or two thousand dollars fine (this is the law which failed of passage in the Massachusetts Legislature of 1910). The hiring of armed guards, as is usual in the West, is made heavily criminal. Finally, to workmen who have been influenced or persuaded to do anything by anybody except another workman, is given a suit for damages against the person so persuading them. The lot of the employer in Oklahoma is indeed a parlous one! By the law of April 24, whenever a workman is discharged, his employer must give him a letter stating the reason truly, under penalty of five hundred dollars fine and one year's imprisonment, and such letter must be written, not printed, and the form and appearance of the stationery is carefully provided for and all secret marks forbidden. Oklahoma is one of the eight-hour States, with the minimum average wage in public work, referred to above; and all contracts must be made on that basis. Wages must be paid fortnightly in cash, by all persons or corporations engaged in mining or manufacturing. Oklahoma is the test-tube of American legislative reactions. We shall await with interest the legislation of 1911, as well as the effect of the laws we have summarized above. In the meantime Oklahoma has presented to the constitutional lawyer the long-sought problem of whether a sovereign State once admitted to the Union is bound by the Act of Congress authorizing such admission. The enabling act of Oklahoma required that its capital should be fixed at Guthrie and not moved for a period of years. In May, 1910, within such period of limitation, by act of legislature, supplemented by a plebiscitum of the people and the executive action of Governor Haskell, the capital was removed to Oklahoma City, and the State seal conveyed there surreptitiously, in spite of the injunction of a Federal district court. A more beautiful American constitutional question could hardly be presented. It may not at first seem to the reader so important, but when he considers that, for instance, Utah and other Western States have abolished Mormonism in the same manner, or have agreed to give equal treatment to the Japanese and Chinese in the same manner--by an enabling act of Congress, ratified and perpetuated in the State Constitution--he will see the importance of the question. It was anticipated in the writer's work on constitutional law ("Federal and State Constitutions," p. 186, note 8): "The enabling acts admitting the eight new Western States usually provided against polygamy on account of the Mormon influence, and this, with other provisions concerning schools, etc., was made forever irrepealable without the consent of the United States; see Utah 3, 1. This is probably only a moral obligation; a State when once admitted comes in with all the rights of the older States. So far as this section is concerned, Utah could probably amend her Constitution and re-establish Mormonism to-morrow." European legislation is necessarily more elaborate because there is usually no body of existing common law. Trades-unions are universally made lawful, as they are with us. But in France in certain cases the consent of the government to the formation of such organizations is necessary; and the Code Napoleon made unlawful all combinations of persons with an "evil end."[1] So, "full freedom of association" is now guaranteed in Switzerland; and in Germany the trade guilds are largely recognized, but membership must not be compulsory. In Austria a strict governmental control is exercised, and the principle of obligatory guilds is unreservedly accepted. There does not appear to be any legislation upon strikes except in Great Britain, France, and Italy, such matters being left largely to the political or police authorities. Strikes were unlawful in England until comparatively recent times, but were always lawful in this country, and are so by the modern French law, which is much similar to ours, as is the case in Italy; but in Russia the leaders of a strike may be imprisoned. [1] Quoted in Dane's Abridgment, published in 1800. In no country do I find any specific legislation as to boycotts, except the English statute already referred to, repealing the common law of conspiracy, both civil and criminal, in industrial disputes. Germany and Austria have blacklisting laws. The matter of riots, etc., is generally left to the criminal law to control. In no country other than the United States do I find any prohibition against a man's protecting his own property with private guards, armed or otherwise. Arbitration laws in the British colonies are very generally aimed at the prevention of strikes. Otherwise there seems to be less legislation on the subject during the last ten years than might have been expected. The Orange River Colony has severe laws concerning the labor of the blacks, of a nature resembling our peonage laws in the Southern States. Similar conditions seem to lead to similar legislation throughout the modern world. Legislation is now much desired here also to obviate the effect of the Taff Vale case and that of the Danbury hatters which applies its principals to interstate commerce; that is to say, which shall secure the funds of a trades-union to its benevolent purposes, or even to its use in industrial disputes, strikes, boycotts, etc., without making it liable for the results of litigation. In these cases the moneys in the treasury of a trades-union, although unincorporated, have been held responsible for damages awarded in a suit brought against the union or its members for conspiracy under the Sherman Act, or otherwise. It is, however, difficult to see how such legislation with us could be devised so as to be constitutional, for it would necessarily extend only to a certain class of persons, and be framed to exempt them alone from a certain definite legal liability. Nevertheless it has in England been enacted.[1] [Footnote 1: See above, p. 268: The Trade Disputes Act, 1906, sec. 4.] CHAPTER XIII MILITARY AND MOB LAW, AND THE RIGHT TO ARMS We now come to a field of legislation related to the early English constitutional right to be protected from military law or molestation by the army, and the corresponding right of protection of one's person, or one's house, by force, if necessary. The right of law, even as against the military, has been anticipated in an early chapter; the right to try an officer, or even a soldier obeying orders, in the ordinary tribunals, for homicide, or for ordinary trespass, as when, in the Dorr rebellion in Rhode Island, a company of militia invaded a woman's house.[1] The constitutional principle against the quartering of soldiers upon private dwellings, and the limitations to the military power caused by the strict confinement of the use of the army to cases of invasion or insurrection, have been added by American constitutions. But most important of all is the supremacy of the common law; the grudging permission of military law even to the army themselves only by a temporary vote; for in England, the Mutiny Act must be passed annually, and in the United States, appropriations for the army and navy may not last over two years. It is these statutes alone that make possible the very government of the army, the enforcement of the contract of enlistment, and the condign punishment of deserters. [Footnote 1: Martin _v_. Mott, 12 Wheaton, 19.] For example, let us remember the Boston Massacre. Ten years before the Revolution, some turbulent men, mostly negroes, started a riot against British soldiers on what is now State Street (then King Street), and under the orders of the commanding officer the soldiers fired, and two or three men were killed. Yet although the colonies were already under military occupation, and their courts and legislatures more than unpopular with the home government, these British soldiers were tried for manslaughter and murder, not in England, but in the ordinary common-law courts of the Colony of Massachusetts. James Otis defended them and they were acquitted. The fact that a monument to Crispus Attocks, the negro, now stands on Boston Common, and that ten or twelve years later the British flag was expelled from Boston to seek refuge in New York, does not modify the significance of the incident. Some years since in a Pennsylvania strike a small company of militia, being attacked by a mob, were ordered to fire. They did so, and killed one of the striking rioters. It was found out which private had fired the fatal shot; he was indicted and tried for murder; and it was ruled that the order of the commanding officer was no defence. These principles, we should be reminded, are fundamental; in our own country in time of peace, or even in time of war, except in hostile territory, there is no such thing as martial law; and no such thing as military law, except for the army itself, and then only by the sufferance of a biennial vote, which vote also limits the duration of existence of the regular army; besides which, all our State constitutions and the Declaration of Independence have a general provision against standing armies. The proclamations of military officers, of mayors of cities, or even State governors, declaring martial law, or suspending the writ of habeas corpus, are of no legal validity; this is true of a similar proclamation by the President of the United States, though it was frequently done by Abraham Lincoln. The act of Mayor Ruef of San Francisco, even at the time of the earthquake, declaring martial law, or giving troops or vigilance committees summary powers of punishment, was a mere "bluff." Such an order, though in practice obeyed by all good citizens, would in no way protect those acting under it from prosecution in the criminal or civil courts. On the other hand, the right to bear arms is inherent under English ideas, and this alone, with the corresponding right of political assembly, has served largely to maintain English liberty; while the absence of these two important rights has relieved countries like Russia from all fear of revolution. One has only to read Mr. George Trevelyan's vivid account of the difficulties of the Garibaldi movement to free Italy in 1860, to realize the enormous difficulties under which the great patriot labored from the absence of these underlying principles. Indeed, but for the connivance of the Piedmontese government in allowing somebody to sell a thousand condemned rifles, it is probable that there would have been no revolution in Sicily. Now this Anglo-Saxon right to arms goes back to times before the very dawn of the English Constitution, and the fyrd or local militia was in Saxon times, as it was declared to be by our American State constitutions of the eighteenth century, "the natural and only defence of a free country." This principle was very soon re-established after the Conquest. We find, as early as 1181, the Assize of Arms, which revives the ancient fyrd or militia. Twenty-two years before scutage had been substituted for military service; but this was merely a matter of feudal tenure. Yet so early was a direct call for troops forbidden to the crown. The contest of English ideals against Norman ideas was one of the principal causes of Magna Charta itself (it is significant that the Great Charter was never published in French); the barons were required to support the king in war, but complained against being led out of the kingdom; and King John's insistence upon this led to the assembly at Runnymede. Thus the militia and the maintenance of arms other than of feudal retainers--and this exception led to the statutes against maintainors--passed out of the executive power and became the province of the legislative branch; a principle carried out in all our constitutions; they make the executive the commander-in-chief of the army, navy, or militia, but the governor may usually not command in the field, nor order troops out of a State; and the president cannot employ Federal troops _in_ a State, except when requested by its legislature; save only where necessary to maintain the functions of the Federal government itself, or when a State government ceases to be republican in form--but of that last who is to be the judge? With the doing away of direct military service, never yet to be re-established in England, though the threat of conscription is now made, disappeared the power of the king to control his people; and this prevented the establishment of a royal autocracy and the extinction of representative government which took place in every Continental State. It is a picturesque fact that mercenary soldiers were first employed in England in small numbers to suppress Jack Cade in 1449, who was leading a labor insurrection; just as the first instance where Federal troops were employed in intra-State matters in America was when President Cleveland sent them to suppress rioters interfering with the movement of mails in the Pullman strike in Chicago. With standing armies abolished, and the fear of invasion removed, the practice of keeping arms fell into disuse, so that curiously enough we find under the Stuarts statutes compelling citizens to keep and bear arms, just as we find statutes compelling them to take their seats in Parliament. For quite three centuries we find no legislation concerning arms, and Hallam mentions that by 1485 six liberty rights were established, among them that "officers, administrators or soldiers are liable for their acts at the common law." It is not until 1679 under Charles II, the very year of the Habeas Corpus Act, that standing armies are definitely established in England, and the Mutiny Act concerning the government of the army was first passed. The struggle of the people with the army under Charles I may be well shown by these quotations from the Petition of Right in 1628: " ... of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn, against the laws and customs of this realm ..." " ... certain persons have been appointed commissioners, with power and authority to proceed ... according to ... martial law ... and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial. By pretext whereof some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might and by no other ought, to have been judged and executed." And by the Bill of Rights of 1689: "That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law." "That the raising or keeping a standing army, within the kingdom in time of peace, unless it be with consent of Parliament, is against law." Now it often happens that a great constitutional principle established with some difficulty in England is amplified and perfected by the bolder statement in American constitutions. Thus, the Virginia Bill of Rights, 1776, has the perfect definition: "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies in time of peace should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." Similar declarations are found in the Declaration of Independence the same year, and the Massachusetts Bill of Rights four years later; but the Virginia definition, being the work of Thomas Jefferson, is both the most compendious and the most concise, and is substantially copied in the Second and Third Amendments of the Federal Constitution. Modern legislation on the subject has found little to improve, although, with the ignorance of constitutional history too often found in modern statutes, we do find State laws which recognize martial law as a really existent domain of English and American jurisprudence. As our greatest jurists have often enough declared: "martial law" is nothing but the will of the commanding officer, the negation of all law, which exists when the courts do not sit and the writ of habeas corpus does not run. Even in these imperial days, I detect no tendency in the legislation of the States, or even of the Federal government in North America, to infringe upon these great principles of freedom. On the contrary, many State constitutions, as well as an act of Congress, declare that the writ of habeas corpus can never be suspended by the executive, but only by the people's representatives in the legislature. The prejudice against standing armies does not seem to be as strong, in that ours has recently been quadrupled in size; but this is probably no more than proportionate to our national expansion. Many of the States in this time of increasing civic disorder have had to give their attention to the suppression of mobs, and correspondingly we very generally find new complete codes governing the militia. Thus statutes are frequent exempting a private soldier from prosecution for murder when he fires under the orders of his commanding officer; and the honest judgment of the commanding officer is made a defence for all acts of his troops in attacking mobs, even to the point of fatalities resulting. Counties or cities are very generally made liable for damage to property done by mobs, and in some States for damage to life done by lynchers; the widow and children of the person lynched may recover damages. In Kansas, by a statute of 1900, it is made a misdemeanor for a bystander to refuse to assist a sheriff in quelling a riotous disorder. Most significant, perhaps, of this militia legislation is that concerning its relation to the labor unions, and more significant still, the too apparent desire of labor unions to prevent their members from serving in the militia. Thus, New York and other States have already found it necessary to enact statutes prohibiting any discrimination against persons because they serve in the militia; prohibiting their employers from discharging them by reason of their necessary absence on such service, and forbidding the labor unions from in any way preventing them, or passing by-laws against their serving in the militia. Such by-laws are, however, unlawful under the common law. The law-making most in the popular mind on this whole question is that concerning pensions. As is well known, the Federal pension list has swollen to a sum far in excess of the total expense of the standing army of Germany. An enormous number of Spanish War veterans who never even left the country are being added to the list, and their widows will be after them; the last survivor of such may not die before A.D. 2140, and the States themselves have not lagged far behind, all to the enormous corruption of our citizenship; indeed, one or two more wars (which the very motive of such wholesale pensioning is the more likely to bring on) would bankrupt the nation more rapidly than even our battleships. Not only that, but there is a distinct tendency to make a privileged class of veterans, and the sons of veterans--and perhaps we shall find of the sons of sons of veterans--by giving them preference in civic employment and special education, support, or privileges at the State's expense. Sometimes they get pedlar's licenses for nothing; sometimes they are to be preferred in all civic employment; sometimes they have special schools or asylums as well as soldiers' homes; sometimes they are given free text-books in the public schools. The Confederate States have not been behindhand in enacting similar laws for their own soldiers, despite the implied prohibition of the Fourteenth Amendment; but Southern courts have held them void. The general right to bear arms is frequently restricted by the prohibition of concealed weapons, or of the organization, drilling, and training of armed companies not under State or Federal control, both of which limitations have been held constitutional; and the legislation prohibiting the employment or importation of private armed guards, such as the Pinkerton men, has been already alluded to in our chapter on labor legislation. The precedent for the latter is to be found in the early English legislation against retainers; that is to say, the armed private guard, or "livery," of the great noblemen; whence is derived the custom of putting servants in livery. The legislation against private drill companies is closely allied, and had a somewhat amusing test in Chicago where, during a labor strike, a number of the strike sympathizers organized a so-called drill company and furnished themselves with guns, for the purpose really of intimidating the public and helping the law-breakers. Unfortunately it so happened, for this purpose, that the first time they sallied forth with sword and musket on warfare bent, they were stopped by one or two policemen on the nearest street corner, taken to the station-house, deprived of their arms, and locked up for the night. The next morning a fine was imposed upon their captain, who appealed to the United States Supreme Court without success.[1] [Footnote 1: Presser _v_. Illinois, 116 U.S. 252.] The legislation for giving damages for injuries to property done by mobs was tested after the Pittsburg riots of 1873, and that yellow metropolis was mulcted in heavy damages, which it took twenty-three years to pay off. But no damages in this country were ever given for criminal homicide directly, although there is an interesting case in the Federal Circuit Court of a gentleman in Georgia who was awaited by a party of neighboring gentlemen with the intention of shooting him up when he arrived. One of his friends secretly got to the railway station and sent a telegram to his wife, shortly to become his widow, not to come. The Western Union Telegraph Company delayed the message, its operator being in sympathy with the gentlemen of the neighboring town, and the widow failed to recover damages from the telegraph company. But these modern statutes in Ohio and the Southern States, making towns responsible in a definite sum to the kin of a murdered man, are the exact re-enactment of the early Anglo-Saxon law; except that the blood damages--the were gild--were in those days put upon the neighbors or the kin of the enemy. "Organized labor" is hostile to the use of the militia, still more of the regular army, in any labor dispute or riot resulting therefrom. It is never justifiably hostile where actual offences are committed, but there is something to be said, at least there is some precedent for their hostility, in cases where by the accident of Federal jurisdiction the whole power of the United States army is called in to back up the injunction of a judge, perhaps improperly issued. That is to say, if the parties to the dispute are citizens of the same State the National government may not interfere except, of course, where the mails or inter-State commerce are obstructed; but, by the mere accident that plaintiff and defendant come from different States--and this may nearly always be made the case by the plaintiff corporation, if it be a citizen of another State than where it owns its mine or operates its mill--it may always pick out strike leaders, walking delegates, who are citizens of another State, so that the litigation may be brought in a United States court. If, then, the orders or processes of that Federal court be interfered with, under the law of our Constitution the entire Federal government, first the Federal marshals and then the Federal army, may be called into the fight. CHAPTER XIV OF POLITICAL RIGHTS Most important of these are the right to assemble, and the right of free election. The right of political assembly and petition is another principle which has been much broadened by American constitutions. In England the right of public meeting undoubtedly existed from early times, but it was tied to the right of petitioning Parliament, which obviously limited its scope; and always strongly contested by the kings. Many riot acts were passed, both by the Tudors and by the Stuarts, which sought to limit and restrict it, and even to make any meeting of more than twelve men a riotous and criminal assembly. Indeed, the history of the attempt of the authorities to prevent riotous assemblies quasi-political runs all the way from Jack Cade's Rebellion in 1452 to the Philadelphia street railway strike in 1910. By an Act of 1549 unlawful assemblies of twelve "to alter laws or abate prices" were made unlawful--one of the reasons that gave rise to the English notion that a simple strike was criminal. This, however, has nothing to do with the political right of assembly which, fully recognized by the Massachusetts Body of Liberties in 1641, was not definitely established in England until the Bill of Rights of 1689. Now this principle is cardinal, and so far as I know none of the States have legislated upon the subject, unless the limitation of the injunction writ be such legislation. A statute of Henry VII gave special authority to the Court of Star Chamber over riots; which is precisely the power now objected to by labor leaders when exercised by courts of chancery. But it must be noted that this right of assembly only extends to matters political, and does not cover a meeting held for an end ordinarily unlawful, such as to bring about a riot or to work oppression to others or an injury to the public. The right of election, however, is much older in England. We find statutes concerning the right of free election, that is, of allowing electors to vote without interference or control, as early as 1275. It is for this reason that almost from the origin of the House of Commons it has been unlawful, or at least uncustomary, for peers of the realm to even speak pending elections to the House of Commons. That House also vindicated its right to judge of elections against Elizabeth, and the principle that it alone shall be the judge remains in full force in the United States, though in modern times in England given to the courts. There is no constitutional principle in England as to the right of suffrage, which in early times was shared in by all free men, or at least landholders. It was in 1429 limited to the forty shillings freeholders, which law has been relaxed by degrees ever since. Our early constitutions recognized both property and educational limitations; these were all done away with at one time, except in Massachusetts and Rhode Island, the former retaining an educational, the latter a property, qualification. They have now been abolished in those States, but taken up in the South, for the purpose, of course, of disfranchising the negro vote. The serious modern instance of interference with free election is that of the Federal government with State elections in the South during the thirty years following the war. While such interference was never quite held unconstitutional, it was strongly felt to be so; and has therefore disappeared from practical politics. The principle of free election, therefore, remains again unquestioned, and is, indeed, strengthened by considerable legislation aimed at the influencing of votes by employers, etc. Many States, for instance, require that Election Day shall be a holiday, or, at least, that all employers of labor shall give part of the day, one or two hours at least, for the employees to vote; and a number of States have statutes aimed at the coercion of their vote by any promise of giving or withholding employment, or otherwise, and the giving their pay to them in envelopes upon which any political matter is printed. Bribery is nearly always made criminal and cause of permanent disfranchisement and disability to hold office, both to the person giving or receiving the bribe, but there is more interesting legislation still aimed at any form of political corruption. Massachusetts led the way with a statute which endeavors to make criminal any promise of employment or advantage, or even for a corporation, at least, to employ any person at the recommendation of any member of the legislature. It is very difficult to draw such laws to make them apply fairly, but they have been copied with even greater elaboration in many Southern States. The statute of Alabama, for instance, covers nearly a page in describing the various acts or promises which are thus forbidden to officers or candidates for office. Then there is the long range of lobby acts aimed at the very serious abuse of lobbying. Massachusetts divides the offence, or rather the business, into two general classes: First, the legislative counsel who appears before legislative committees in support or in opposition of measures. This practice, of course, is perfectly legitimate in many cases, but the law provides that his advocacy must be open, he must disclose the client for whom he appears, if there be one, and at the end of his services file a statement of the counsel fees actually received. Such legislation, however, is easily evaded by the payment of an annual salary. Then there is the legislative agent or lobbyist, properly so called, who does not openly appear before legislative committees, but waylays members of the legislature at their dwelling or meeting places, or elsewhere. He must also register as legislative agent by the Massachusetts law, and file an actual account of his receipts and expenses. Such legislation properly observed would, of course, have made impossible the celebrated "House of Mirth" at Albany. Then there are many statutes against intimidation in elections, particularly in the South; and there were many acts of Congress passed under the Fourteenth Amendment, but these have practically all been held unconstitutional. The form of the ballot is another matter that has been the subject of much legislation. Our States vary, as does still public opinion in England, between the extreme of providing by the Constitution itself for the secrecy of the ballot, and the other extreme of requiring that all voting should be _viva voce_, as was formerly the case at least in Kentucky. Public opinion has universally settled in favor of the former; and to protect the voter's freedom, the so-called Australian ballot has very generally been adopted, the principle, of course, being a ballot on which all candidates' names are printed, with or without party designations, and against which the voter makes his mark. In their practical working, however, these laws depend on the simplicity of the form; thus, it works very well in Massachusetts, where the form is simple and the ballot short, and very badly in New York, where the contrary is the case. Opinion is pretty well united on the advisability of the Australian ballot, the only remaining difference being as to whether any party designations should be printed. Most practical politicians desire that the name "Republican" or "Democrat," or even that some party symbol like a star or flag, should be affixed, which can be understood by the most illiterate voter; also, that the voter should be allowed to make one cross opposite the word "Republican" or "Democrat" when he means to vote the whole of the ticket, "in order to give each candidate the benefit of the full party strength." On the other side it is argued that all voting should be intelligent and never blind, and that if the voter does not take the trouble to mark all the names on the ballot it sufficiently indicates that he is indifferent as to some of the candidates even of his own party, and that his votes for them should, therefore, not be counted. The most significant of modern developments in legislation concerning voting is the new practice of recognizing by law political parties, and of regulating by law the mode of their nominations. The old idea was that the law took no notice of anything that happened until election day, when it did regulate the mode of voting and counting the votes; the law was supposed to be blind to political parties; the persons elected were merely the successful candidates. But first began the tendency to recognize parties in "bi-partisan" boards and commissions; it became very usual to provide that State officials should, when the office was held, or the function performed, by more than one person, be elected or appointed from different parties. This, of course, works very well when there are but two parties, as indeed is usually the case. And now of late years the practice has grown up of regulating political matters _before_ the election day. Direct primaries, caucuses regulated by law, the mode of nomination, nomination papers to be filed in a certain manner, the compulsory service of men as candidates unless they comply with precise formalities of resignation, the joint caucus and the separate caucus, the public nomination paper, the one-per-cent., three-per-cent. or five-per-cent. rule whereby a party gains such official recognition only by throwing such a percentage of votes at some previous election--in short, all the mass of legislation of this kind is the matter of the last few years. In the writer's opinion, with the possible exception of the public nomination paper, it is all mistaken. Aimed at destroying the machine, it really intrenches the machine--the professional politician--in power. The general public will not, and should not be compelled to do more work than is necessary. If they actually vote at election it is all that can fairly be asked of them and more than one-third of them do. They will not, and cannot, devote their time to politics all through the year. The result is that all such elaborate schemes simply throw the game into the hands of the "town committee" or other permanent professional body. If you have to hold a meeting in June, and give notice of a caucus in July, with as much formality as used to be required in publishing the bans of marriage, and then on a certain day in August do something else, and in September something still more, and file with the Secretary of State nomination papers in October, and have everything complete ten days before election day,--the ordinary citizens who usually awake to the fact that there is an election about that time find it too late to have any voice in the nomination. They go to the election itself to find an official ballot with two machine candidates for each office, and no hope of electing, even were it possible to nominate, a third. In the old days, when they discovered that an improper candidate had been nominated, on the very eve of election they could arouse themselves and defeat him; under all these complicated systems it is too late. One necessity for such legislation, however, arises from the Australian ballot itself; when that ballot carries party designations, who is to determine who is the official party candidate? This problem is not, however, insoluble. Indeed, it might be argued that it would be an excellent test to require the various so-called party nominees to run together, leaving to the voter to determine who was the regular one. Certainly the legalizing of conventions, caucuses, and other nominating machinery, has led to great scandals. Under such laws, whoever first gets possession of the hall at the time named would seem to be the regular candidate. We have, therefore, in Massachusetts, seen the scandal of two groups of men making different nominations in a loud voice at the same time, one at the front of the hall, and the other at the back, and the courts had to decide who was the regular nominee. In the opinion of most lawyers, they decided in favor of those who ought to have been the nominees rather than of those who in fact were. In the opinion of many "practical politicians," as well as others, the whole mass of legislation that recognizes political parties and applies to anything happening up to the date of election, should be expunged from the statutes. I would hardly make an exception even of the "bi-partisan" board. A board should be composed of the best persons, not necessarily party-colored; if there be any force in the argument for bi-partisan commissions, it should apply ten times as much to the judges, but there is no provision in any State of the Union or in the National government for bi-partisan courts of law. Massachusetts, alone, so far as the writer is informed, of all the States, by a certain tradition respects this principle. Very few Massachusetts governors replace a Democratic judge by a Republican, or _vice versa_. But most significant of all political matters is the growing distrust of legislatures. Curiously enough, although there was a great distrust of the executive of the nation until within a very few years, that seems to have entirely passed away. Governors of States have too little power to inspire distrust in anybody. But that legislatures or representatives of the people should fail to inspire their confidence is one of the most curious developments of modern politics. The matter has been fully discussed elsewhere in this book. It is greatly to be lamented, for it tends to lower the character of the legislatures themselves. The days are indeed far off when a man would prefer being governor of a State to president, ambassador, or judge of the Supreme Court; or the State Senate to the national Congress. Part of this indifference is, of course, explicable; for with the perfection of our civilization and the growing intelligence that most statutes have been enacted that are really needful, there is really less for the legislatures to do. Then, also, the growing practice of giving a large share of governmental, or even legislative, powers to boards and commissions has narrowed the scope of legislation. Whatever be the reason the fact is certain. Very few States now allow their legislatures to sit _ad libitum_, and only six or seven States permit annual sessions. In nearly all States sessions are biennial, if not, as in some Southern States, quadrennial. That is to say, the legislature is only allowed to meet once in four years; and in more than half the States the time of the session is limited to ninety, sixty, or even thirty days, or the pay of the legislators cut off at the end of such period. A few States have laws aimed at corrupt elections, that is to say, limiting the expenditure of candidates and requiring publicity. Most States now forbid contributions by corporations, as does the Federal government.[1] Thus, by the California law of 1893, expenditures are limited to one hundred dollars for each candidate, or one thousand dollars by a committee, and in no case exceeding five per cent. of the salary of the office for which the person is a candidate for one year, and the legitimate expenses are specified; that is to say, public meetings, printing, postage, and head-quarters expenses. Probably no one regrets the prevalence of extravagant expenditures more than persons who are themselves in public life. If the bosses of many State machines were consulted in private, they would agree that the only really legitimate expenditures are the hiring of halls, and the mailing of at most one printed circular to every voter in the district. The Missouri law of the same year fixes a limit of expenditure of one dollar per hundred of votes thrown at the last election for the office for which the person is a candidate, which, in an ordinary congressional district of say fifteen thousand voters, would be one hundred and fifty dollars--certainly little enough. Voters very generally have to be registered. [Footnote 1: Bill signed by President Taft, June, 1910.] As is familiar to the reader, there has been a decided movement for the direct election by the people of United States senators, a large majority of the States, and the Democratic party in all States, having in the last few years expressed themselves in favor of a change in that particular. Until within a few years it was thought only possible by Constitutional amendment, but the example of Oregon and other States has shown that it may be done by means of a law providing for the expression of the preference of the voters, and this may even be made a party ballot. That is to say, voters at party caucuses, or even at elections where the ballots are so marked, may express their preference for this or that candidate for the United States Senate, and the moral obligation will then be on the State legislature, or at least on its members of the corresponding party, to vote for the candidate so nominated. This has been universally done in the case of election of the United States President by the force of public opinion; no instance is on record of an elector having voted differently, or of a bribe or even of an attempt to bribe. But with legislation--statute law not being so strong as the unwritten law, contrary to the popular opinion--it is by no means certain that this result will happen. The law has worked in Oregon, where first adopted, with the striking result that a Republican legislature elected a Democratic United States senator; but if the writer is correctly informed, the contrary has been the case in Illinois. The movement for the direct nomination of members of the lower house of Congress also exists in many States. "Direct nomination" of course means a nomination by the mass of voters, either in assembly or by a written list. The value of this reform is probably exaggerated. Direct nominations in the city of Boston recently had the somewhat amusing result that there were two or three times as many names on the nominating petitions as voted in the election, and that one gentleman, indeed, fell short of his nominating petition by nearly ninety per cent. The mode of legislation is not much changed from the early days. Usually bills have in theory to be read three times and must be voted for by a majority of a quorum. Many States forbid new legislation to be attempted after the first few days of the session. There has in the last few years been an effort at the proper drafting of bills, but it has hardly made much progress as yet, and will be discussed in our final chapter. The two most radical changes of all are, of course, the initiative and referendum, and women's suffrage. The latter has, on the whole, made no progress since it was adopted in Colorado and three other States, about the year 1890. The people of the States where it exists appear satisfied and it is probable that they will never make the change back; on the other hand, the better opinion seems to be that the existence of women's suffrage has not materially altered conditions or results in any particular, except, possibly, that there is a little less disorder around the polling booths on election day. The largest city in the world where women vote is Denver; and in hardly any American town has the "social evil" been more openly prevalent or politics more corrupt; while it has just voted _against_ prohibition. As in the case of school suffrage, it is probable that a smaller proportion of women are now exercising the right of suffrage than when the thing was a novelty. In all the neighboring States to the four women's suffrage States (Colorado, Wyoming, Idaho, and Utah) a women's suffrage amendment has been proposed to the Constitution, all the male voters have been given a chance to vote on the question, and in every instance it has been defeated by very large majorities. As has been intimated, the movement to extend the right of suffrage to women for all matters connected with schools and education has also been arrested. Many States had adopted this principle before the year 1895, but few, if any, during the past fifteen years. The experience of Massachusetts, where sentiment was strongly for it, shows that the women take very little interest in the matter; an infinitesimal percentage of the total female population voting upon election day, even when a prominent woman was the leading candidate for the school committee. Women's suffrage was adopted in Colorado in 1805, and rejected in Kansas the same year; adopted in Idaho in 1890, and rejected in California; rejected in Washington and South Dakota in 1898; rejected in Oregon in 1900, in both Washington and Oregon, once at least since, and has been rejected by popular referendum in several other States. There is, however, an intelligent tendency, notably in the South, to recognize the right of women to vote as property owners upon matters involving the levying of taxes, or the "bonding" of cities, towns, or counties, for public improvements or other purposes. Such laws exist in Texas, Louisiana, Michigan, and possibly other States, and in Louisiana the statute provides machinery by which women may on such matters vote by mail. It is much to be wished that municipal affairs and municipal elections could be separated entirely from political ones. That is to say, that a city or town might be run as a business corporation on its business side, and in such elections have the property owners, both men and women, only vote. The trouble, of course, is that there are certain matters, notably the expenditure for schools, which is the largest, at least in Massachusetts cities and towns, which are in a sense both municipal and political, both economic and affecting individual rights of persons not property owners. In any case, the matter must be considered outside of the sphere of "practical politics." It is hardly likely that, except for some special matter like the race question in the South, a State constitution will ever be amended in a conservative direction. Allied with this would be a proposition to deprive persons in receipt of wages or salary from a city of the vote at municipal elections. Laborers and employees in the employ of a large city like Boston already form a very considerable percentage of the voters, and if you add to them the employees on the public-service corporations, partly under municipal control, you have probably got nearly one-third of the total vote. Yet the vote could not be taken from them without an amendment to the State constitution. Of the initiative and referendum much has been written. It exists in full force, that is to say, as applying both to State elections and to county, city, or town elections, in several States, mostly in the far West; and for partial purposes it exists in several more. "Direct legislation" has been very popular as a political slogan during the past few years, but it has not been adopted as yet in any of the thirteen original States. The objections to it are fundamentally that it destroys the principle of representative government; that it takes responsibility from the legislature with the result, probably, of getting a more and more inferior type of man as State representative; that it is unnecessary, inasmuch as any one may have any bill introduced in the legislature to-day, and public sentiment be effectual to prevent the bill from being defeated; and finally, the objection of inconvenience, that it is cumbrous and unmanageable to work. Already the Secretary of State of Oregon complains that the laws passed by initiative are so badly written as to be unintelligible and conflicting, to say nothing of bad spelling and grammar. In one instance, at least, an important statute, that for the initiative and referendum itself, adopted by initiative, failed of effect because it contained no clause beginning "Be it enacted," etc. Possibly with practice these objections might disappear. The more valuable part of the reform is undoubtedly the referendum. The initiative is hardly necessary, except by way of giving a referendum on measures which otherwise would not emerge from the legislature; and there is a growing inclination to give a referendum on all laws or measures involving a grant of a franchise or of a right or privilege at the expense of the general public, or the town or city concerned. This is a very distinct tendency, and throughout the Union the States are rapidly passing laws that where a State-wide franchise is given, an exemption from taxes, a rate-making power, or other privilege, it shall be submitted to all the voters, and corresponding measures, street-railway franchises, gas, light, water, or other public-service corporations, acting only in definite localities, cities or towns, shall be referred in the appropriate locality. The method of the State-wide initiative or referendum varies little in the different States; usually, upon petition of from five to eight per cent. of the voters, or in cities and towns usually fifteen per cent., legislation may be initiated. It may then be either passed by the State legislature like an ordinary law, or be given to the referendum of the people, or both, and takes effect when adopted by a majority of the voters at a general or special election. Constitutional amendments may in some States be originated and adopted in the same manner. So far as one can judge, the referendum in this country shows the same tendency that it has shown in Switzerland. Although a larger number of measures are doubtless submitted to the people, and especially measures of a class not to go through the ordinary legislature, when controlled by important interests, yet the vote itself at the final election is apt to be somewhat conservative. The referendums upon women's suffrage, for instance, while the initiative was adopted by a large majority, were very decisively defeated at the polls, and it is said that last year's election in Oregon and Washington, with very numerous and complex referendum measures, showed a surprising degree of intelligence on the part of the ordinary voter. Nevertheless, while it may be possible to submit to him one or two measures a year, if it were to come to the submission of all legislation (and the States will average from five hundred to one thousand statutes per year, at their present output) it seems incredible that the voter should have time and intelligence, or even take the trouble, to mark his ballot accordingly; while it is obvious that the ballot itself, setting forth the full law, would be considerably larger than the annual volumes of statutes now are. This matter of practical convenience, however, may perhaps be expected to cure itself. I should conclude, therefore, that while the whole matter is an interesting experiment, the initiative is hardly necessary, and the referendum should be limited to constitutional amendments (where it was always allowed) and to matters of definite local or public interest, like the granting of a franchise or an irrepealable contract of privilege. The modern practice of putting everything into the State constitution which we have called attention to in other places, has led, of course, to a practical referendum on all most important matters, for no constitution, with the exception of that of Virginia, has ever been adopted in any of our States except by the people at an election; and with the tendency to require the submission of a new constitution every twenty years, and to make the constitution itself so compendious as to cover a vast amount of matter, usually subjects of legislation, with the consequent necessity of frequent amendment, we have now in our Southern States and some of the Western States a practical referendum to the people of most important legislative matters every few years. The initiative and referendum was adopted in Iowa in 1891. As to bonds and debts of cities, etc., in Ohio in 1902. In Oregon, the general initiative and referendum by constitutional amendment in 1903. As to franchises for public utilities only, in Wisconsin, Montana, and Arizona the same year. As to Chicago, Illinois, in 1904, and in several States, what we will term the local or limited referendum, in the last four or five years. It was, however, defeated in Massachusetts, although adopted in Maine; and in Delaware the whole question was submitted to a commission to investigate. The recall, a still more recent device than the initiative and referendum, has, indeed, no precedent in the past, or in other countries. In substance, it makes the tenure of office of an elective official dependent on the continuous good-will of the voters, or of a certain proportion of the voters. Under the present charter of the city of Boston, the mayor may be "recalled" upon petition of fifty per cent. of the registered voters--a proportion which practically makes the recall impossible. Where, however, the initiative of the recall depends on a small proportion and the result is determined by a simple majority vote at the polls, it is easy to see that the mayor or other official would be in continuous apprehension, if he cared for his office, and in any event would not be able to adopt and follow out any continuous policy. The terms of most of our officials are brief. A proposal to apply the "recall" to judges would, in the opinion of the writer, be wicked, if not unconstitutional; as to all other officials, it would tend to destroy their efficiency, and in most cases be in itself ridiculous, at least as to short-term officers holding for only one or two years. One of the most noteworthy of political changes that have occurred in the republic since the adoption of the Constitution in 1789, is that affecting the election and tenure of office of judges. Smith, in his book on American State Constitutions, published shortly after the Revolution, tells us that at that time every State in the Union had its judges appointed by the executive for a life term. To-day, this principle survives only in the Federal courts and four States, New Hampshire, Massachusetts, Maine, and Delaware, although in Connecticut, New Jersey, and Mississippi, the judges of the highest, or Supreme Court, are still appointed in this manner and for life. In Vermont, Rhode Island, Virginia, and South Carolina, Supreme Court judges are elected by the two houses of the legislature in joint convention, but in all other States, that is, universally in the West and Southwest, the judges are elected by the people of the States or of their respective districts. New York and Pennsylvania, however, have very long terms, which by some is said to combine the advantages of both systems; in other States the term is from four to six years. In matters judicial the field is far too vast to permit more than briefest mention of the most important lines of popular legislation. In the first place, common law and chancery jurisdiction are very generally fused and confounded. A few States still have chancellors entirely distinct from the common-law judges, and Massachusetts and a few other States still keep chancery terms and chancery procedure distinct from the common law. It is certainly a curious result that the historic jealousy of chancery and all its works should have ended, in the most radical States of the Union, in their complete adoption of the whole system of chancery with all its concomitants. As a result, the injunction writ, originally the high prerogative of the crown and its highest officers, has now become the weapon of all judges, even in some States of inferior magistrates, and has been used with a confusion and recklessness that have gone far to justify the complaint of labor interests. On the other hand, we have grown less jealous of preserving our common-law jury rights. Not only is much more provision made for the waiver of jury trial in all States, at least in criminal cases, and for a trial by the court without a jury unless it be specially claimed, but there is a distinct tendency to have juries less than twelve in number, and verdicts not unanimous, but made up of three-fourths, two-thirds, or even a simple majority; while our indifference to common-law rights shown in our multiplication of boards and commissioners has already been commented on. Legislation on the law of evidence has been on two main lines, originally, of course, under the Federal Constitution, to destroy all religious tests, and permit an atheist or person of heathen religion to testify upon simple affirmation, or according to his religious tenets. Universally, persons charged with crime have been permitted to testify in their own defence, with the common provision that no inference shall be drawn from their not doing so. Of course, by our Constitution itself, they were given the right to counsel and compulsory process for obtaining evidence on their own behalf, neither of which rights existed under the old common law; and then almost universally the wife is permitted to testify against the husband or in his behalf, especially in cases involving controversy between them; while, as she is very generally given the right to make contracts even with the husband, she is naturally given the right to enforce the same in civil courts as well. It is in procedure that our legislation is least efficient. Having little knowledge of the subject, legislatures have been shy of meddling with court rules and processes; while the very fact that the legislatures have taken unto themselves the right so to interfere, has seemed to impress both bench and bar with a certain sense of irresponsibility. I fear we must admit that the judges of England, aided by its bar, have been far more solicitous of speedy and simple procedure and trial than have the courts of this country. Some Western States have crudely tried to meet the difficulty, as by providing that all judges must render an opinion within sixty days, or other brief period, after a case is argued before them, or even by limiting the number of witnesses to be called! But it may be feared that so long as public sentiment rather demands every possibility of evasion of execution than that a guilty person should be promptly and summarily punished, little can be hoped for from the legislatures. Such progress as has been made in this direction has universally been under the urgent instance of the lawyers themselves, acting through the State or Federal bar associations. But the judges themselves must venture a stricter control of irrelevant testimony. XV OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS Legislation concerning freedom of speech and its limitations, the law of slander and libel, hardly exists in America, except only the efforts of newspapers to be free of the consequences of libels published by them, provided they publish a retractation; and the efforts of the people to protect their reputation and right to privacy, as by laws like that of the State of Pennsylvania prohibiting ridiculous or defamatory cartoons, even of persons in public life; and the legislation already attempted in some States to prohibit the use of a person's likeness for advertising purposes, or to protect them from the kodak fiend, or even to establish a general right to privacy as to their doings, engagements, social entertainments, etc., when they are of no legitimate interest to the public. Legislation in these directions has, however, only made a beginning. The newspaper-libel laws usually provide that the retractation shall be a defence to a libel suit, at least if published in as large a type and in as conspicuous a manner as the original article complained of; sometimes they only provide that in such cases the newspaper shall be relieved of all but actual damages. The wisdom of such legislation is questionable, as the old adage runs: "A lie will travel around the world while the truth is putting on its boots"; moreover, it is questionable whether they are not class legislation in extending to a certain form of business or a certain trade a protection which is not extended to others. There has been much legislation preventing the advertising of patent medicines, immoral remedies, divorce advertisement, and such matters. Some newspapers have objected to it, but the right of freedom of the press does not include the right to the use of the mails, and the papers containing the objectionable advertisements may constitutionally be seized or denied delivery, just as convict-made goods may be denied circulation in interstate commerce, by act of Congress, not, of course, of the States. Mr. Gompers, of the American Federation of Labor, has complained that the injunction of their so-called "unfair list" is an interference with the freedom of the press, and I presume would claim that an injunction against urging, or combining to urge, by oral argument, the members of the various unions throughout the country to boycott a certain person, would be an interference with the right of freedom of speech, and that therefore if the courts did not so decide, the laws should be changed by statute. This, also, would seem open to the objection of class legislation if extended only to speech or publication in industrial disputes. It should be noted, however, that the broad principle of freedom of speech by all persons and at all places is first adopted in the American constitutions, freedom of speech in England in its historical principles extending only to freedom of speech in the House of Parliament, and the right of assembly and petition at a public meeting; freedom of the press, however, is the same constitutional principle in both countries, but only extends to the right to publish without previously obtaining the consent of any censor or other authority, and the person publishing still remains responsible for all damages caused by such act. It is this part of the law which Mr. Gompers would alter, or rather make absolute; so that any notice or threat could be printed and circulated even when a component act of a conspiracy. By a recent act of Congress the right of freedom of speech does not extend to anarchistic utterances, or speeches or writings aimed against order, the established government, and inciting to assassination or crime. Such laws are barely constitutional as applied to United States citizens. The unpopularity of the alien and sedition laws under the administration of John Adams will be remembered. Since their repeal, no attempt at a law of government libel has been made; very recently, however, where certain gentlemen, mostly holding important government offices, were charged with having made money out of the Panama Canal purchase, the weight and influence of the administration was given to the attempt to indict them and bring them to the courts of the central government at Washington for trial. This attempt, however, failed in the courts, as, in the Wilkes case, it had failed more than a century before at the bar of public opinion. But the law is, of course, much stronger as to persons not citizens. That is to say, no one has any right to immigrate into this country, and therefore intending immigrants may be kept out by legislation if they are anarchists, socialists, or, indeed, hold any opinion for the moment unpopular with Congress. The attempt has so far, however, not been made to keep out any but violent anarchists, and, of course, persons who are diseased, of immoral life, or likely to become a public charge. And the attempt to keep them under the hand of the central government for years after they have taken their place for good or ill in the State body politic has recently failed in a monumental case vindicating anew the Tenth Amendment. Connected in most people's mind with the right of privacy is the right of a person to keep his house and his private papers to himself; but it bears no relation whatever to the very new-fangled notion of a general right to privacy. The two principles are that an Englishman's house is his castle. His home, even though it be but one room in a tenement, may not be invaded by anybody, even by any government official or authority (except, of course, under modern sanitary police regulation), without a written warrant specifying the reason for such invasion, some offence with which the man is charged, and some particular document or paper, or other evidence of which they are in search. The principle against general warrants--that is, warrants specifying no definite offence or naming no particular person--was established in Massachusetts in Colony times, and the principle taken over to England and affirmed by Lord Camden--one of the two or three celebrated examples where we have given a new constitutional principle back to the mother country. Now, closely connected with this is another principle that a man shall not be compelled to testify in a criminal matter against himself, or that, if so compelled by statute or official, he shall then forever be immune from prosecution for any crime revealed by such testimony; the wording of the earlier constitutional provisions was "in a criminal offence," but by modern, more liberal interpretation, it has been extended to any compulsory testimony, whether given in a criminal proceeding or not. This, with the principle protecting a man's private affairs from inquisition, is expressed in our Fourth and Fifth Amendments, the former prohibiting unreasonable searches and general warrants, and the latter providing that no one shall be compelled in any criminal case to be a witness against himself, nor deprived of property without due process of law, and it has reasonably been argued that an inquisition into a person's business or book of accounts is such deprivation of his property without due process of law, at least when applied to a natural person. I find no legislation limiting these important principles, but on the contrary the tendency in modern statutes and modern State constitutions is to extend and generalize them. Of such is the famous clause of the recent constitutions of Kentucky and Wyoming that "absolute arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority." In view of the frequently successful efforts of trust magnates and others to escape indictment or punishment by some enforced revelation of their affairs given after a criminal proceeding has has been commenced or before a grand jury, legislation is now strongly urged to withhold them immunity in such cases. This would relegate us to the early state of things where they would simply refuse to answer, so that it may be doubted if, on the whole, we should gain much. The right of an Englishman not to criminate himself is too cardinal in our constitutional fabric to be questioned or to be altered without subverting the whole structure. Practically it would seem as if a little more intelligence on the part of our prosecutors would meet the evil. Corporations themselves are never immune; and unless the wicked official actually slept with all the books of the corporation under his pillow, it would be hard to imagine a case where some corporate clerk or subordinate officer could not be subpoenaed to produce the necessary evidence. Indeed, as has been well argued by leading American publicists, the sooner the public learns to go behind the figment of the corporation, the screen of the artificial person, into the human beings really composing it, the quicker we shall arrive at a cure for such evils as may exist. Legislation punishing or even fining an offending corporation is in the last sense ridiculous. It is necessarily paid by the innocent stockholders or the public. There is always some one person or a number of persons who have _done_ or suffered the things complained of; after all, every act of the corporation is necessarily done by some one or more individuals. We must get over our metaphysical habit of treating corporations as abstract entities, and again recognize that they are but a definite number of natural persons bound together only for a few definite interests and with real men as officers who should be fully responsible for their actions. Indeed, it ought to be simpler to detect and punish offenders than in the case of mere individuals unincorporated, for the very fact that a corporation keeps books and acts under an elaborate set of by-laws and regulations gives a clew to its proceedings, and indicates a source of information as to all its acts. One clerk may therefore reveal, and properly reveal, books and letters which shall incriminate "those above"; one employee may show ten thousand persons guilty of an unlawful combination, and properly so. There is no reason why he should not, and the nine thousand nine hundred and ninety-nine others deserve, and are entitled to, no immunity whatever from his revelation. The religious rights, although for the most part peculiar to the American Constitution, adopted by us, indeed, as a result of the history of the two or three centuries preceding in England, but hardly in any particular a part of the British Constitution, were by the reason of our very origin so strongly asserted and so highly valued with us that no legislation has been found necessary on the subject. Perhaps the sole important instance in which the question has come up has been that of instruction in the public schools and the use of the money raised by common taxation for special religious purposes. Very generally the latter is forbidden in our State constitutions, the Federal Constitution by the First Amendment merely protecting the right from the action of Congress. Owing to decisions of the Supreme Court, in the South it has become possible to divide school appropriations between schools for whites and blacks, and it is presumable that the same thing might be done as, for instance, between Roman Catholics and others, and something of the sort has, I believe, been done with the appropriations for the education of Indians. The few statutes we find upon this matter tend to still further extend and liberalize religious rights. Almost universally now a man is not forbidden from testifying or being a witness by reason of his belief or disbelief, even when he is an atheist. The latter law is not, however, quite universal. He must, in some States, believe at least in the existence of God, or of a future state of reward or punishment. Mormons, at one time, claimed the right to practise polygamy as a part of their religion guaranteed to them by the Constitution; the contention did not prevail; on the contrary the Mormon States were made to submit to an enabling act under which they bound themselves to adopt State constitutions providing for all time against polygamous practices. Such a treaty is not, of course, binding upon a sovereign State unless Mormonism be deemed inconsistent with a republican form of government; so that Utah, for instance, has probably the right to re-establish Mormonism to-morrow so far as the Federal Constitution is concerned. Whether it would be permitted by a strenuous president having public sentiment at his back may indeed be questioned. In like manner, Christian Science practitioners have invoked the constitutional right of religious belief against the common law requiring that those offering themselves to practise medicine should be reasonably skilled in their trade. Legislation permitting Christian Scientists to practise freely has been attempted in nearly all the States, but has not, so far as I am informed, succeeded in any, although a good many States have adopted statutes extending the right to osteopaths. Under the common law of England, re-established in Massachusetts by a famous decision[1] twenty years ago, a person holding himself out as a surgeon or medical practitioner, who is absolutely uninstructed and ignorant, is guilty even of criminal negligence, and responsible for the death of his patient, even to the point of manslaughter. [Footnote 1: Commonwealth _v_. Pierce, 138 Mass. 165.] XVI LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS This is, of course, a matter of which books might be, and indeed have been, written; our general essay on popular legislation can do no more than summarize past law-making and the present trend of legislatures, much as some history of the people of England might broadly state the economic facts and laws of the Corn-law period in England. Racial legislation may, of course, be considered from the point of view of the negro, the Indian, and the alien, and indeed it differs much in all three. Other personal legislation is largely concerned with the right to exercise trade, already discussed, and the questions of marriage and divorce we reserve for the next chapter. In the past we have been very unjust, not to say cruel, to the Indian, and though naturally in some respects a high-natured race, have constantly denied him any political share in the government, and only in the very last few years grudgingly extended it to such Indians as renounce their tribe and adopt the habits and mode of life of the white man, or, as in early England, to such freeholders as acquire a quarter section of land. In the negro's case, however, we atoned for the early crime of enslavement by the sentimental hurry with which we endeavored in the '60's and '70's of the last century to take him up by law and force him into exact equality, social as well as political, with the white man. To aliens, in the third hand, we have been consistently generous, having shown only in the very last few years any attempt whatever to exclude the most worthless or undesirable; except that the prejudice against the Mongolian in the far West is quite as bitter as it ever was against the negro in the South, and he is still sternly refused citizenship, even national citizenship, which we freely extend to the African. We are thus left in the ridiculous situation of providing that nobody may be a citizen of our great Republic except a white Caucasian and a black African, with considerable ambiguity still as to what the word "white" means. The American Indians are, indeed, admitted under the conditions before mentioned, so that as a catch-word the reader may remember that we are a red, white, and black country, but not a brown or yellow one. All this is, of course, the accident of history; but the accidents of history are its most important incidents. Taking Asiatic races first, the far Western States vie with each other in passing legislation which shall deny them the right to life, or at least to live upon any equality of competition with the white. Most of such laws are, of course, unconstitutional, but they were at one time enacted with more rapidity than the Supreme Court of the United States could declare them so. Congress tries to be more reasonable and, indeed, has to be so, in view of the fact that it is a national Congress living, with the executive, in direct touch with the foreign nations themselves. Broadly speaking, our national legislation is to exclude immigration, but guarantee equality of property right, at least, to such Mongolian aliens as are actually in the country; and to extend or guarantee such right of treatment by treaties, which treaties are, of course, acts of Congress, like any other act of Congress, entirely valid in favor of the foreign power and enforceable by it even to the issue of war, but possibly, as a constitutional question, not enforceable by the Federal government against the States. An endless mass of legislation in California and other Western States has been devised, either openly against the Chinese or so couched as to really exclude them from the ordinary civic liberties, and most of our State laws or courts declare that the Japanese are Mongolian although that people deny it. Many statutes, moreover, are aimed at Asiatics in general; which would possibly include the Hindoos, who are of exactly the same race as ourselves. Indeed, some judges have excluded Hindoos from naturalization, or persons of Spanish descent, while admitting negroes, which is like excluding your immediate ancestors in favor of your more remote Darwinian ones. Even in New York and other Eastern States, the employment of aliens, particularly Asiatics, is forbidden in all public work--which laws may be invalid as against a Federal treaty. Yet statutes against the employment of any but citizens of the United States in public works are growing more frequent than ever, and seem to me quite within the rights of the State itself to determine. But Pennsylvania could not impose a tax of three cents per day upon all alien laborers, to be paid by the employer. Many States are beginning to provide against the ownership of land by aliens. This, of course, is perfectly constitutional and has full justification in the history and precedent of most other countries, and as applied to foreign corporations it is still more justifiable; and the Western States very generally provide against the ownership of land, other than such as may be taken on mortgage, by foreign corporations, or corporations even of which a large proportion of the stock is held by foreigners. Racial legislation as to negroes may be divided into laws bearing on their legal, political, and social rights, including, in the latter, contracts of labor and of marriage. By the Thirteenth, Fourteenth, and Fifteenth Amendments, all adopted within ten years after the war, we endeavored to put the negro in a legal, a political, and a social equality with whites in every particular. A broad statement, sufficiently correct for the general reader, may be made that only the legal part has succeeded or has lasted. That legislation which is aimed at social equality, all of it Federal legislation, has generally proved unconstitutional, and that part which has been aimed at political equality has, for one reason or another, been inefficient. Moreover, the great attempt in the Fourteenth Amendment to place the ordinary social, civil, and political rights of the negro, and necessarily, therefore, of every one else, under the _aegis_ of the Federal government, Federal courts, and Federal legislation, has been nullified; first, by court decision, and later, if we may trust the signs of the times, by contemporary public opinion. The only thing that remains is that the States cannot make laws which, on their face, are discriminations against the negro, or in social matters against any other race; and in political matters, the Fifteenth Amendment has proved effective to render null State laws which on their face are designed to restrict or deny their equal right of suffrage. Legislation concerning labor, the industrial condition, and contract rights of the negro, such as the peonage laws, we have considered in an earlier chapter; both State and national laws exist, and the Thirteenth Amendment, being self-executing, has proved effective. Under the Fifteenth Amendment there is little political legislation, except the effort in Southern States by educational or property qualifications, and most questionably by the so-called "grandfather clause," to exclude most negroes from the right of suffrage. Laws imposing property and educational qualifications are, of course, valid, although designed to have the effect of excluding a large proportion of the negroes from voting; laws, on the other hand, which give a permanent right of suffrage to the descendants of a certain class, as of those voters, all white, who were entitled to vote in Southern States in the year 1861, are probably unconstitutional as establishing an hereditary privileged class, though there has as yet been no square decision on this point by the Supreme Court of the United States. But as there is no further legislation on these subjects, to pursue the matter further would carry us into constitutional law. In the third field, that of social legislation, there has been a vast number of laws, first by Congress with the intention, under the Fourteenth Amendment, of enforcing social and industrial equality and providing Federal machinery for securing it (the great substance of this has been held unconstitutional and has passed away); later by the States, usually the Southern States, with the exactly opposite purpose of separating the races, at least in social matters, and of subjecting them to a stricter law of labor contract than has, in our country at least, been imposed upon other citizens. Even this matter of social legislation, which alone remains to be discussed in this book, is quite too vast for more than a brief sketch. Among the many monographs on the subject may be mentioned the article of G.T. Stevenson on the "Separation of the Races in Public Conveyances."[1] Even this comparatively narrow matter is by no means exhausted in an article covering twenty pages. Much of the social separation of the races is, of course, brought about without statute law, but by custom, or even we may say customary law, which is always apt to be the better enforced; and under the civil rights decisions of the United States Supreme Court in 1883, such customary law has been rendered immune from Federal control. Legislation now exists in all Southern States as to separate, though equal, accommodations in public conveyances; at one time such statutes were restricted to interstate commerce, but the present tendency of court decision appears to be to recognize even their interference with interstate commerce as part of the reasonable State police jurisdiction. Such statutes apply generally to railroads, steamboats, and street cars, or other conveyances of transportation. They are not so usual as to hotels, eating-houses, theatres, or other public places, probably because in such it is more easy to secure the desired segregation without legislation. We may, therefore, conclude that legislation on this point will be universal in the South and in Oklahoma or other border States with Southern sympathies, and will not be declared unconstitutional by the courts. [Footnote 1: _American Political Science Review_, vol. III, No. 2, 1909.] The labor unions very generally exclude negroes, both in the South and North, and in many Southern States the whites refuse to work with negroes in mills. Until and unless labor unions are chartered or incorporated under legislation forbidding such action, it is probable that their by-laws excluding negroes, though possibly unreasonable at the common law, could not be reached by the Fourteenth Amendment; and public sentiment in the States where such by-laws are common would probably prevent any permanent vindication of the right of the negro to join labor unions by State courts. That is to say, countervailing legislation would promptly be adopted. Coming to education, the same principle seems to be established, that if the facilities are equal the education may be separate for the different races, just as it may be for the different sexes; and it would even appear that when the appropriation is not adequate for giving higher or special education to both races, particularly when there are few negroes applying for it, high-schools or special schools may be established for whites alone. Coming to the matter of sexual relation, a different principle applies. Under their unquestioned power of defining crimes, their police power in criminal and sanitary matters, the States may forbid or make criminal miscegenation. Cohabitation without marriage may, of course, be forbidden to all classes, and in the case of cohabitation between white and black the penalty may be made more severe, for it has been held that as both parties to the offence are punished equally, there is, under such statutes, no denial of the equal protection of the law. _A fortiori_, marriage may be forbidden or declared null between persons of different race, and the tendency so to do is increasing very decidedly in the South, and is certainly not decreasing in the North. Indeed, constitutional amendments are being adopted and proposed having this in view, "the purity of the race." Recent plays and magazine articles, with which most of our readers will be familiar, sufficiently bear out this point. In property rights, however, I can find no legislation which discriminates against the negro, and there is some in his favor. With the exception of the labor or peonage laws, discussed separately, I have found no legislation which limits his property or contract rights. On the other hand, there is, in the several States, legislation requiring that he shall be given life or health insurance policies on the same terms and conditions as are applied to whites, despite the alleged fact that his expectation of life is less and not so easy to determine, owing to the lack of information as to the health and longevity of his forebears. Sketching first thus our general conclusions it remains for us only to give a few concrete examples drawn from the legislation of the last twenty years: In 1890, soon after the civil-rights cases were decided, we find some State legislation to protect the negro in his civil rights; but the first "Jim Crow" laws, providing for separation in public conveyances, etc., began in 1865 and 1866 in Florida, Mississippi, and Texas, and are continued in other States in this year. In 1892 there are laws for separate refreshment rooms and bath-houses, and providing that negroes and whites shall not be chained together in jails. In 1893 there is legislation for separate barber shops, and the first law requiring equal treatment by life-insurance companies is passed in Massachusetts. In 1895 there is legislation against the mixture of races in schools. In 1898 the laws and constitutional provisions for practical negro disfranchisement begin in South Carolina, Mississippi, and Louisiana. On the other hand, in 1900, New York passes a statute that there shall be no separate negro schools, and in 1901 Illinois adopts civil-rights laws, followed in 1905 by five other States. In 1907 South Carolina makes it a misdemeanor to serve meals at station eating-houses to whites and blacks in the same room. In 1908 Maryland and Oklahoma provide for separate cars and separate rooms. In 1894 we find nine States prohibiting miscegenation. In 1902 Florida makes miscegenation a felony, and in 1908 Louisiana declares concubinage between a Caucasian and a negro to be also a felony, while Oklahoma adopts the miscegenation law. These examples of legislation are not intended to be exhaustive, but will serve to give the reader a general Idea of the trend of popular law-making in this important matter. Personal privilege, depending not upon race, but upon legislation, or inheritance, is, of course, strictly forbidden in each State by both constitutions, State and Federal. The growth of a contrary principle is only noteworthy on the two lines touching respectively the whites in the South and veterans of wars in the North. It must be said that legislation in the interest of the Grand Army of the Republic, and even of the veterans of the Spanish War, and even in some States of the sons or descendants of such veterans respectively, has come very near the point of hereditary or social privilege. The struggles of so-called "Organized Labor" to establish a privileged caste have so far been generally unsuccessful, always so in the courts, and usually so in the legislatures; but in many States those who have enlisted in either wars, Civil or Spanish, wholly irrespective of actual service or injury, are entitled not only to pensions, Federal and State, but to a diversity of forms of State aid, to general preference in public employment, and even to special privilege or exemption from license taxes, etc., in private trades, and their children or descendants are, in many States, entitled to special educational privilege, to support in State schools or industrial colleges, to free text-books, and other advantages. Presumably some of these matters might be successfully contested in the courts, but they never have been. As to pensions, nothing here need be said. The reader will remember the familiar fact that our pensions in time of peace now cost more than the maintenance of the entire German army on a war footing or than the maintenance of our own army. The last pensioner of the Revolutionary War, which ended in 1781--that is to say, the last widow of a Revolutionary soldier--only died a few years ago, early in the twentieth century. The Order of the Cincinnati, founded by Washington and Lafayette, was nevertheless a subject of jealous anxiety to our forefathers; but apparently the successful attempt of volunteers disbanded after the Civil and the Spanish Wars, although far more menacing because embodying social and political privilege, not a mere badge of honor, seems to call forth but little criticism. XVII SEX LEGISLATION, MARRIAGE AND DIVORCE The notion that a woman is in all respects a citizen, entitled to all rights, political as well as property and social, was definitely tested before our Supreme Court soon after the adoption of the Fourteenth Amendment, on the plea that the wording of that amendment gave a renewed recognition to the doctrine that a woman was a person born or naturalized in the United States and therefore a citizen and entitled to the equal protection of the laws. The court substantially decided [1] that she was a citizen, was entitled to the equal protection of the laws, but not to political privileges or burdens any more than she was liable to military service. The State constitutions of many States, among them Illinois, have provided that a woman is entitled to all ordinary rights of property and contract "the same as" a man. Under this provision, when laws were passed for the protection of women, forbidding them to work more than a certain number of hours per day, they were originally held unconstitutional. The so-called women's-rights people (one could wish that there were a better or more respectful word) seem themselves to be divided on this point. The more radical resent any enforced inequality, industrial or social, between the sexes. For instance, many States have statutes forbidding women or girls to serve liquor in saloons or to wait upon table in restaurants where liquor is served. Such statutes, obviously moral, are nevertheless resented. On the other hand, the Supreme Court of the United States has taken the conservative view, that there is a difference both in physique and character between the sexes, as well as different responsibilities and a different social interest, so that it is still possible, as It has been possible in the past, to impose by law special restrictions on the contracts of women. The law of Oregon, therefore, not permitting them to make personal contract for more than eight hours per day was sustained both in the State and the Federal Supreme Courts; and a similar law by the highest court of Illinois, reversing its own prior decision.[2] This matter is of such interest and of such importance that it is frequently placed in State constitutions, and it seems worth while to summarize their provisions. The advanced position is now squarely put only in the constitution of California, which provides that no person shall on account of sex be disqualified from entering upon or pursuing any lawful business, vocation, or profession. Such a constitution as this would, of course, make it impossible even to pass such laws as the ones just mentioned forbidding them to serve in restaurants, such employment being lawful as to men. But no other State follows that extreme provision, and, indeed, the clause in the constitution of Illinois seems now to have been repealed. [Footnote 1: Minor _v_. Happersett, 21 Wallace 166.] [Footnote 2: See above, p. 227.] As to property matters it may be broadly stated that they have in general precisely the same rights that men have, and in several States more; that is to say, a woman frequently has a larger interest in the property of a man at his death, than the man has in hers, should she predecease him; and universally she is given a share of the husband's property in case of divorce, either outright or by way of alimony, which, so far as I know, is never awarded to the man even if he be the innocent party. In New Jersey and some other States, a married woman is not permitted to guarantee or endorse the notes or debts of her husband. Many of the Southwestern States, from Louisiana to California, recognize or adopt the French idea of community property. By the Mississippi constitution "the legislature shall never create by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or other power of contract in reference thereto." But this does not prevent laws regulating contracts between husband and wife. In matters of divorce and personal relation, such as the guardianship of children, the tendency has also been to put women on an equality with men and more so. That is to say, divorces are awarded women which for similar reasons would not be awarded men, both by statute and by usual court decision, and although a very few States, such as recently developed in the conservative State of South Carolina, retain the common-law idea that the father must be the head of the family, many States provide that the rights of the parents to the custody and education of their children shall be equal. In other words they are to be brought up by a committee of two. Nevertheless, in California and other code States of the West it is still declared that the husband is the head of the family and may fix the place of abode, and the wife must follow him under penalty of desertion. Such matters are more often determined by custom or by court decision on the common law than by written statute; and it is apprehended that the judges will usually follow the more conservative rule of giving the custody of infant children to the mother, and of more mature children, particularly the boys, to the father. Divorce statistics on the subject are extremely misleading for two great reasons: First, because in the nature of the case, and perhaps of the American character, in two cases out of three a divorce is granted for fault of the husband.[1] And in the second place, because a false cause is given in a great majority of cases. In England until recently the rule was absolute that a woman could not get a divorce for adultery alone, but there had to be cruelty besides; while the man could be divorced for the first-named cause. No such rule has ever prevailed in any State of this country. Desertion and failure to support, on the other hand, are much more easily proved by the wife. In short, it is not too much to say that in all matters of divorce she stands in a position of advantage. [Footnote 1: _U.S. Labor Bulletin_, Special Reports on Divorce, 1860, 1908.] The same thing is in practice true as to marriage. Under liberal notions, prevailing until recently in all our States, certainly in all where the so-called common-law marriage prevails, it is extremely easy for a woman to prove herself the lawful wife of any man she could prove herself to have known, and sometimes even without proving the acquaintance. The "common-law" marriage, by the way, is not, so far as I can determine, the English common law, nor ever was. If any common law at all, it is the Scotch common law, the English law always having required a ceremony by some priest or at least some magistrate, as does still the law of New England. Under the influence of the State Commissioners for Uniformity of Law this matter has been amended in the State of New York, so that if there be no ceremony there must at least be some written evidence of contract, as in the case of a sale of goods and chattels under the statute of frauds; the contract of marriage being thus, for the first time in New York, made of equal importance with that of the sale of goods to the value of one hundred dollars. Much difference of opinion exists between the South and the North upon this point, the Southern view being more remarkable for chivalry, and the Northern for good sense. Southern members of the National Conference of Commissioners claimed that any such law would result in disaster to many young girls; that if they had to travel ten, twenty, or thirty miles to find a minister or justice of the peace they would in many cases dispense with the formality or be impatient of the delay; and that anyhow on general principles any unmarried man who had seen an unmarried young woman two or three times ought to be engaged to her if he was not. The Northern Commissioners, on the other hand, were desirous of protecting the man, and especially his legitimate widow and children, from the female adventuress, which view the South again characterized as cynical. There is probably something to be said for both sides. Coming finally to political rights, the subject of women's suffrage alone might well be reserved for a separate chapter, if, indeed, it is to be disposed of by any one mind; but at least the actual occurrences may be stated. As mentioned above in our chapter on political rights, it now exists, by the constitutions of four States; and has been submitted by constitutional amendment in several others and refused. No actual progress, therefore, has been made in fifteen years. As to office-holding, the constitutions of Missouri and Oklahoma--one most conservative, the other most radical--both specify that the governor and members of the legislature must be male. In South Dakota women may hold any office except as otherwise provided by the constitution. In Virginia, by the constitution, they may be notaries public. In all other States, save the four women's-suffrage States, the common law prevails, and they may not hold political office. The first entirely female jury was empanelled in Colorado this year (1910). In some States, however, statutes have been passed opening certain offices, such as notaries public, and, of course, the school commission. Such statutes are, in the writer's opinion, illogical; if women, under a silent constitution, can hold office by statute, they can do it without. It is or is not a constitutional right which the legislature, at least, has no power to give or withhold. Generally in matters of education they have the same rights both to teach and be taught as males. Indeed, Idaho, Washington, and Wyoming declare that the people have a right to education "without distinction of race, color, caste, or sex," and that is practically the case by the common law of all States, though there is nothing to prevent either coeducation or segregation in schools. The recent tendency of custom is certainly in the latter direction, Tufts, Wesleyan, and other Eastern colleges having given up coeducation after trial, and the principle having been attacked in Chicago, Michigan, and other universities, and by many writers both of fact and fiction. These are the abstract statements, but one or two matters deserve more particular treatment. First of all, divorce legislation. Many years ago the State Commissioners for Uniformity of Law voted to adhere to the policy of reforming divorce procedure while not attacking the causes. This, again, is too vast a subject to more than summarize here. The causes of divorce vary and have varied all the way from no divorce for any cause in South Carolina, for only one cause in New York and other States, up to twenty or thirty causes, with that indefinite or "omnibus" clause of "mutual incompatibility," or allowing the courts to grant divorces in the interest of the general peace. Since the efforts of reformers have wiped out the express-omnibus clause from the legislation of all States, the same abuse has crept in under the guise of "cruelty"; the national divorce report before referred to showing that the courts of this broad land have held sufficient cruelty to justify divorce (to the wife at least) to exist in tens of thousands of different incidents or causes, ranging all the way from attempts to murder ("breaking plaintiff's nose, fingers, two of her ribs, cut her face and lip, chewed and bitten her ears and face, and wounded her generally from head to foot") to not cutting his toenails [1] or refusing to take the wife to drive in a buggy; indeed, one young North Carolina woman got a divorce from a man she had recently married, on the ground that he was possessed of great wealth, but she had been assured that he was an invalid, and had married him in the hope and belief of his speedy decease, instead of which he proceeded to get cured, which caused her great mental anguish; while one husband at least got a divorce for a missing vest button.[2] But, independent of the vagaries of courts and judges, and perhaps, most of all, of juries in such matters, it has been found that the numbers of divorces bear no particular relation to the number of causes. In fact, many clergymen argue that to have only one cause, adultery, is the worst law of all, as it drives the parties to commit this sin when otherwise they might attain the desired divorce by simple desertion. Moreover, the difference in condition, education, religion, race, and climate is so great throughout the Union that it is unwise, as well as impossible, to get all of our forty-eight States to take the same view on this subject, the Spanish Catholic as the Maine free-thinker, the settler in wild and lonely regions as the inhabitant of the old New England town over-populated by spinsters. It was, therefore, the opinion of the State Commissioners that the matter of causes was best determined by States, according to their local conditions, and that it would be unwise to attempt, even by amendment to the Constitution, to enforce a national uniformity. All the abuses, substantially, in divorce matters come from procedure, from the carelessness of judges and juries, or, most of all, by laws permitting divorce without proper term of residence, without proper notice to the other side, or by collusion, without proper defence, or for no reason but the obvious intention of contracting other marriages. The recommendations of the Commissioners on Uniformity will, therefore, be found summarized below,[3] and there is beginning to be legislation in the direction of adopting these, or similar statutes. The Supreme Court has vindicated, however, the right of the State not to be compelled under the full faith and credit clause to give effect to divorces improperly obtained in other States by its own citizens or against a defendant who is a citizen. In other words, a marriage, lawful where made, is good everywhere; not so of a divorce. The fact that this ruling, wise and proper, necessarily results in the possibility that a person may be married in one State, divorced in another, and a bachelor in a third, and bigamous in a fourth, lends but an added variety to American life. If the people wish to give the Federal government power to make nationwide marriage and divorce laws, they must do so by constitutional amendment. [Footnote 1: _Sic_: "U.S. Labor Commissioners' Report on Marriage and Divorce," Revised Edition, 1889, pp. 174, 175, 176.] [Footnote 2: _Ibid_., p. 177.] [Footnote 3: AN ACT TO ESTABLISH A LAW UNIFORM WITH THE LAW OF OTHER STATES RELATIVE TO MIGRATORY DIVORCE Section 1. No divorce shall be granted for any cause arising prior to the residence of the complainant or defendant in this State, which was not ground for divorce in the State where the cause arose. Sec. 2. The word "divorce" in this act shall be deemed to mean divorce from the bond of marriage. Sec. 3. All acts and parts of acts inconsistent herewith are hereby repealed. AN ACT TO ESTABLISH A LAW UNIFORM WITH THE LAWS OF OTHER STATES RELATIVE TO DIVORCE PROCEDURE AND DIVORCE FROM THE BONDS OF MARRIAGE Section 1. No person shall be entitled to a divorce for any cause arising in this State who has not had actual residence in this State for at least one year next before bringing suit for divorce, with a _bona-fide_ intention of making this State his or her permanent home. Sec. 2. No person shall be entitled to a divorce for any cause arising out of this State unless the complainant or defendant shall have resided within this State for at least two years next before bringing suit for divorce, with a _bona-fide_ intention of making this State his or her permanent home. Sec. 3. No person shall be entitled to a divorce unless the defendant shall have been personally served with process if within the State, or if without the State, shall have had personal notice, duly proved and appearing of record, or shall have entered an appearance in the case; but if it shall appear to the satisfaction of the court that the complainant does not know the address nor the residence of the defendant and has not been able to ascertain either, after reasonable and due inquiry and search, continued for six months after suit brought, the court or judge in vacation may authorize notice by publication of the pendency of the suit for divorce, to be given in manner provided by law. Sec. 4. No divorce shall be granted solely upon default nor solely upon admissions by the pleadings, nor except upon hearing before the court in open session. Sec. 5. After divorce either party may marry again, but in cases where notice has been given by publication only, and the defendant has not appeared, no decree or judgment for divorce shall become final or operative until six months after hearing and decision. Sec. 6. Wherever the word "divorce" occurs in this act, it shall be deemed to mean divorce from the bond of marriage. Sec, 7. All acts and parts of acts inconsistent herewith are hereby repealed.] It is always to be remembered that the law of marriage, and divorce as well, was originally administered by the church. Marriage was a _sacrament_; it brought about a _status_; it was not a mere secular contract, as is growing to be more and more the modern view. Indeed, the whole matter of sexual relations was left to the church, and was consequently matter of sin and virtue, not of crime and innocence. Modern legislation has, perhaps, too far departed from this distinction. Unquestionably, many matters of which the State now takes jurisdiction were better left to the conscience and to the church, so long as they offend no third party nor the public. Very few lawyers doubt that most of the causes of action based on them, such as the familiar one for alienation of the affections, are only of use to the blackmailer and the adventurer. They are very seldom availed of by honest women. Nevertheless, it is not questionable that modern American legislation, particularly in the code States, in California, New York, and the West generally, is based upon the view that marriage is a simple contract, whence results the obvious corollary that it may be dissolved at any time by mutual consent. No State has thus far followed the decision to this logical end, on the pretended assumption that the rights of children are concerned; but the rights of children might as well be conserved upon a voluntary divorce as after a scandalous court proceeding. One possible view is that the church should set its own standard, and the state its own standard, even to the extreme of not regulating the matter at all except by ordinary laws of contract and laws for the record of marriages and divorces and for the custody, guardianship, support, and education of children, which would include the presumption of paternity pending an undissolved marriage, but all divorces to be by mutual consent. It is evident to any careful student of our legislation that we would be rapidly approaching this view but for the conservative influence of Massachusetts, Connecticut, Pennsylvania, New Jersey, and the South, and but for the efforts of most of the churches and the divorce reform societies. Which influence will prove more powerful in the end it is not possible to predict. Socialists urge that the institution of marriage is bound up with that of private property. There is little doubt that the women's suffrage movement tends to socialism, and, also, paradoxical as it may at first seem, to lax marriage laws and easy divorces. "The single standard of morality" offered by all advanced women's-rights advocates will necessarily be a levelling down, not a levelling up; and in a society where the life of the ordinary young woman _is_ that which at least _was_ that of the ordinary young man about town, it is hardly likely that there will be any stricter legislation. Where a majority of young women live alone and earn their living, the old order must change. Divorce, it should be known, is a modern institution; that is, divorce by the secular courts. Such divorce as the Roman Church recognized, or was granted by act of Parliament, was the only divorce existing down to the year 1642, when one Hannah Huish was divorced in Connecticut by the General Court, "with liberty to marry again as God may grant her opportunity," and about that time the Colony of Massachusetts Bay enacted the first law (with the possible exception of one in Geneva) permitting divorces by ordinary courts of law. The age of consent means two things, or even three, which leads to much confusion. It has a definite meaning in the criminal law, to be discussed later; and then it has a double meaning in the marriage law. First, the age under which the marriage of a girl or boy is absolutely void; second, the age at which it is lawful without the consent of the parents. The tendency of our legislation is to raise the latter age and possibly the former. At least, marriages of very young persons may be absolutely cancelled as if they had never taken place. According to all precedents, human and divine, from the Garden of Eden to Romeo and Juliet, "the age of consent" would by common sense appear to be the age at which the woman did in fact consent; such is the common law, but such is not usually law by our statutes. But perhaps the legislation of the future is best represented by the extraordinary effort, whose beginning we now see, to prevent freedom of marriage Itself. There is probably no human liberty, no constitutional right to property, or hardly, even, to one's personal freedom, which has been more ardently asserted by all persons not actually slaves (and even, indeed, by them) than the right to love and marry. In the rare instances where even priests have interfered, it has usually led to resentment or resistance. The common law has never dared to.[1] Marriages between near relations, prohibited by the Mosaic law, were invalid by the church law, and became invalid by the secular law at the very late period when it began to have any jurisdiction over the matter, hardly in England half a century ago; in the United States, where we have never had canon law or church courts, the secular law took the Mosaic law from the time of the Massachusetts Body of Liberties (1641). The first interference of statute was the prohibition of the marriage of first cousins. This seems to be increasing. The prohibition of marriage between different races we have mentioned in another chapter. To-day we witness the startling tendency for the States to prescribe whom a person shall _not_ marry, even if it do not prescribe whom they shall. The science of eugenics, new-fangled as the word itself, will place upon the statute-book matters and considerations which our forefathers left to the Lord. Considerable progress has already been made in this country. The marriage of insane persons, persons absolutely _non compos_, was, of course, always void at the common law, and the church law as well. They are incapable of contract. The marriage of impotent persons was void also, but by recent laws the marriage of epileptics is forbidden and made void, the marriage of persons addicted to intoxicating liquors or drugs, the marriage of persons who have been infected by certain diseases; and finally, most startling of all, the proposal looms in the future to make every man contemplating a marriage submit himself to an examination, both moral and physical, by the State or city officials as to his health and habits, and even that of his ancestry, as bearing upon his posterity. Novels have been written about men who avoided marriage by reason of a taint of insanity in the family; this modern science of eugenics would propose to make such conduct compulsory by law. [Footnote 1: Mr. Flinders Petrie, in his late book, "Janus in Modern Life," tells us that at least ten varieties of marriage and marriage law have prevailed in history, and that all save marriage by capture perdure in the civilized world to-day, most of them, in actuality, even in England.] We have now said enough on the abstract questions to close with some of the concrete examples. Some States forbid the marriage of a person who has tuberculosis; some require him to submit to an examination. In 1907 a bill was introduced in Michigan, which provided that no person should be permitted to marry who had ever led an unchaste life. This bill did not, however, become a law. In divorce matters New York, in 1890, adopted the very intelligent statute requiring courts to allow a person charged as corespondent in a divorce case to make defence. Six States raised the age of consent in criminal matters, and four in marriage; one required a marriage ceremony. In 1891 one State added crime, or conviction for crime, as a cause of divorce, one insanity. Two regulated the procedure in the direction recommended by the Uniformity Commissioners. One made it criminal to advertise the securing of divorces in the newspapers. Two States made simple sexual connection a crime (which was not a crime at the common law). One Southern State enacted a special law against slander of women,--another instance of the tendency to their special protection. Several States adopted newer laws giving complete control of their separate property to women, and allowing them to do business as sole traders, without responsibility for the husband's debts. Two more States passed statutes allowing women to practise law. In 1890 one other State forbids drinks to be served by either women or children under eighteen. In 1893 there was much legislation concerning the powers of the mother over the children, and the liability of the husband to support both wife and children under penalty as for the crime of desertion. This legislation has now become pretty general throughout the country; that is, it is made a criminal offence for a man to desert his wife or children, or, being able, to fail to support them. One State declared the husband and wife joint guardians of the children. In 1894 one State prohibited marriage between first cousins, and one between uncle and niece. One declared that marriage removed nonage. One made it a misdemeanor for a married man to make an offer of marriage. The laws for support of wife and children continue, and there were laws passed giving alimony to the wife, even in case the divorce were for her fault. One State made both husband and wife competent witnesses against each other in either civil or criminal cases. One found it necessary to declare that a woman might practise medicine, and another that she might be a guardian; the statute in both cases would seem to have been unnecessary. Two States provided that she might not serve liquor in saloons or restaurants, the statute already referred to. Louisiana adopted the intelligent statute, already mentioned, permitting the right of suffrage to women in cases of votes on loans or taxes by cities, counties, or towns; and Utah first enacted the much-mooted statute that female school-teachers should be paid like wages as males for the same services. It would be most interesting to hear how this statute, which was passed in 1896, turned out to work.[1] One State provided that women might be masters in chancery, and another carried out the idea of equality by enacting that women should no longer be excepted in the laws against tramps and vagrants. Constitutional amendments proposing women's suffrage were defeated this year (1895) in no less than nine States. Connecticut passed a law that no man or woman should marry who was epileptic or imbecile, if the wife be under forty-five, and another State for the first time awards divorce to the husband for cruelty or indignities suffered at the hands of the wife, while another State still repeals altogether its law permitting divorces for cruelty or intoxication. One other makes insanity a cause of divorce. One other, non-support. Two or three adopt the notion of joint guardianship of children. [Footnote 1: A State official informs me that the law is evaded, see above, p. 212.] In 1897 one State prohibits the remarriage of divorced parties during the life of the innocent plaintiff; the Uniformity of Law Commissioners came to the conclusion that any limitation upon remarriage was unwise and led both to immorality and to wrong against innocent third persons. Divorces should either not be granted at all, or be granted absolutely. This is the better opinion; though, of course, it does not apply to mere orders of separation. Much confusion of thought has arisen upon this subject, the upholders of lax divorces always assuming that the opponents mean to compel persons to live together in misery or incompatibility, which, of course, is far from the case. A legal separation has always been permitted, except, indeed, where that doctrine is interfered with by modern statute; any wife can be freed of a vicious or cruel husband and even compel him to support her while living away from him, but "platform women" are apt to forget this fact. In the same year one Southern State has the chivalry to provide that no women should be worked as convicts on the road; one is not aware but for this that it ever happened. We see more humane legislation about this time for the protection and proper treatment of women in jails or houses of detention, for the services of matrons and the careful separation of the sexes, and by now seats for women in stores or factories are almost universally required. The sale of liquor to women is in one State specially forbidden, Louisiana follows the Texas law giving women tax-payers a vote on appropriations for permanent improvements. In 1899 comes the law of Michigan, already referred to, forbidding persons with contagious diseases to marry, and compelling physicians to testify. The Massachusetts Medical Association has gone on record as urging that there should be a privilege to physicians in all cases, as there is to lawyers. Many people believe that to be the common law; such is not the case, even as to priests. One more State this year awards divorce for insanity, and one more for intoxication. Several States permit women to get damages from liquor-sellers selling intoxicating drink to their husbands; I know of no corresponding statute permitting the husband to get damages for drinks sold the wife. A wife may testify against the husband in certain cases, as actions for alienating of affection, or criminal conversation; not so the husband. Texas and other Southwestern States adopt the statute that an action for seduction shall be suspended on the defendant's marriage with the plaintiff, otherwise it is a felony, and it is again a felony should he after such marriage desert her--the Fourteenth Amendment to the contrary notwithstanding (which reminds one of the colonial Massachusetts statute, that the punishment for that offence may either be imprisonment in the state-prison, or marriage!). The laws aimed at mere sin increase in number. One State makes improper relations, even by mutual consent, punishable with four years in the state-prison, if the girl be under eighteen. North Dakota introduces a bill to require medical examination in all cases as a prerequisite to marriage; it failed in North Dakota that year, but was promptly introduced in other States. In Oregon all widows and fathers may vote, without regard to property qualification, in school district elections; and this State joins the number of those which forbid the marriage of first cousins. In 1901 came the great New York statute abolishing the common-law marriage, which we have discussed above. Some States pass laws punishing wife-beating by either imprisonment or a whipping. In 1902 perhaps the most interesting thing is that there is no legislation whatever of any kind on the subject of women's suffrage--showing distinctly the refluent wave. In 1903 New Hampshire rejects a constitutional amendment for women's suffrage. Kansas restricts the marriage of epileptic and weak-minded persons. Several States reform their divorce laws, and Pennsylvania adopts Southern ideas giving divorce for a previous unchastity discovered after marriage. This matter has so far been covered by no Northern State, though it had been law from all time in Virginia. In 1904 women's suffrage was proposed in Oregon, and in 1905 rejected. Illinois follows New York in abolishing the common-law marriage, and raises the age to eighteen in a woman and twenty-one in a man. As is often the case, it does not appear from the ambiguous wording of the statute whether this invalidates the marriage or merely subjects the offenders, or the minister or the magistrate, to a penalty; probably the latter. Minnesota forbids the marriage of imbecile or epileptic persons; Nebraska that of first cousins, and Pennsylvania adopts the uniform divorce law recommended by the commissioners. Five other States reform their divorce laws, and four their laws concerning married women's property, and seventeen adopt new laws for compulsory support of the woman and children by the husband. In 1906 one more State adopts the idea of giving a vote to female property-owners in money elections. One puts the age of consent up to sixteen. In a good many States it is already eighteen. Women's suffrage is again rejected in Oregon; and finally even South Dakota reforms her divorce laws. Perhaps a word should be given to other laws relating to minors as well as to young women. There is very general legislation throughout the country forbidding the sale of intoxicating liquor to persons under twenty-one, and in the great majority of the States the sale of cigarettes, narcotics or other drugs, or even tobacco, to persons under twenty-one, eighteen, or fifteen, respectively. In some States it is forbidden, or made a misdemeanor, to insure the lives of children--very important legislation, if necessary. In 1904 Virginia passed a statute punishing kidnapping with death, which is followed in 1905 by heavy penalties for abduction in three other States; fourteen States establish juvenile courts. Seven States make voluntary cohabitation a crime, and six pass what are known as curfew laws. Indeed, it may be generally said that the tendency is, either by State statute or municipal ordinance, to forbid children, or at least girls under sixteen, from being unattended on the streets of a city after a certain hour in the evening. In 1907 Mississippi makes the age of consent twelve, and the penalty for rape death, which, indeed, is the common law, but which law has extraordinary consequences when the age is raised, as it is in many States, to eighteen. Two more States adopt the laws against abduction and one a statute against blackmail. Sufficient has, perhaps, been said to give the reader a general view of contemporary law-making on this most important matter of personal relations. Most of the matters mentioned in this chapter are cohered by various learned societies in annual reports, or even by the government, in cases of marriage and divorce, and to such special treatises the reader may be referred for more precise information. The Special Report of the United States Census Office, 1909, published early in 1910, makes a careful and elaborate study of the whole question from the years 1867 to 1906. Such statistics are necessarily uncertain for reasons already indicated. Court judgments do not indicate the true cause of divorce, nor is the complainant necessarily the innocent party, nor are the numbers of divorces granted, as for instance in Nevada, any fair indication of the normal divorce rate of the people really living in that State. With this caution we will note that the number of divorces varied from about five hundred in each hundred thousand of married population every year in Washington, Montana, Colorado, Arkansas, Texas, Oregon, Wyoming, Indiana, Idaho, and Oklahoma, down to less than fifty, or about one-tenth as many, in New Jersey, New York, and Delaware. Certain significant observations may certainly be made upon this table. In the first place, the older States, the old thirteen, have, from the point of view of the conservative or divorce reformer, the best record. At the head stand the three States just named, then North Carolina, Georgia, Pennsylvania, Maryland, Virginia, Massachusetts, Louisiana (largely French and Roman Catholic), and Connecticut--ten of the original thirteen States. Only New Hampshire and Rhode Island, the latter for obvious reasons, stand low down in the column; the last State having about three hundred divorces as against Montana's five hundred. South Carolina, having no divorces at all, does not appear. The next observation one is compelled to make is that divorces are most numerous in the women's suffrage States, or in the States neighboring, where "women's rights" notions are most prevalent. Montana, Colorado, Wyoming, and Idaho stand second, third, sixth, and eighth, respectively, among the fifty States and Territories comprised in the table.[1] On succeeding pages are graphic maps showing the conditions which in this particular prevail for a number of years. There is little change of these in the thirty years from 1870 to 1900. The Atlantic seaboard and Southern States in 1870 are left white, with the exception of New England, which is slightly shaded; that is, they have less than twenty-five divorces per hundred thousand of inhabitants. In 1880 the black belt States and Territories--having one hundred and over--extends from Wyoming over Montana, Colorado, Utah, and Nevada. In 1900 it covers the entire far West and Southwest, with the exception of New Mexico (Roman Catholic) and Utah (Mormon). The chart showing the relation of divorces to number of married population does not materially differ. Now these figures, ranging from five hundred divorces per hundred thousand married population per year, or three hundred in the more lax States, down to less than fifty in the stricter States, compare with other countries as follows: [Footnote 1: Census Reports, 1909, "Marriage and Divorce," part I, p. 15.] Only Japan shows a number of divorces approaching these figures. She has two hundred and fifteen per one hundred thousand of general population,--about the same as Indiana, which stands eighth in the order of States. But with the exception of Japan no civilized country shows anything like the proportion of divorces that the American States do. Thus, in Great Britain and Ireland there are but two per hundred thousand of population; in Scotland, four; in the German Empire, fifteen; in France, twenty-three, and in the highest country of all, Switzerland, thirty-two, while the average of the entire United States is seventy-three. The census figures as to the trades or professions in which divorce is most prevalent are amusing, but probably not very significant. It appears, as might be expected, that actors and actresses stand at the head, and next musicians or teachers of music; while clergymen stand very near the bottom of the list, only excelled in this good record by bar-tenders (in Rhode Island) and, throughout the country, by agricultural laborers. But after all, more important, perhaps, than even marriage and divorce, are the great social changes which arise from the general engaging of women in industrial occupation. In matters of property right we have found they are substantially already on an equality with men, if not in a position of special privilege. Yet, as Herbert Spencer remarked, "When an abuse which has existed for many centuries is at last on the point of disappearing, the most violent outcry is made against it." During the century when women were really oppressed,[1] under the power of the husband, given no rights as to their property, their children, or hardly even as to their person, no complaint was heard. Whereas to-day the cry of unjust legislation almost rises to a shriek. The movement for the emancipation of women originated, of course, with Mary Wolstonecraft, about 1812. Her book, which was the first, is certainly one of the longest that have yet been written on the subject. It remained at the time unanswered, and when its author married Godwin she herself seems to have lost interest in the controversy. Nevertheless, little has been added since to the ideas there put forward, save, indeed, for the vote. It is a somewhat curious fact that in all Miss Wolstonecraft's great magazine of grievances and demands for remedying legislation, there is not a single word said about votes by women, or there being such a thing as the right to the ballot. [Footnote 1: In the trial of Mary Heelers for bigamy (2 State Trials, 498) as late as 1663 the chief justice said, 'If guilty, she must die; a woman hath no clergy.' Yet Mary wrote to her husband, in court, "Nay, my lord, 'tis not amiss, before we part, to have a kiss!" She was acquitted.] The industrial condition of the sex in American cities may be summed up with the general phrase "absolute equality of opportunity," with a certain amount of special protection. Women are nearly universally required to be given seats in factories and stores, and the laws specially protecting their periods of employment have just been sustained as constitutional in the States of Illinois and Oregon and the Supreme Court of the United States. On the other hand, we are far behind European countries in legislation to protect their health or sanitary conditions. The most radical effort at legislation ever made was undoubtedly that Connecticut bill forbidding employment of married women in factories, which, however, did not become a law. The recent reports of Laura Scott to the American Association for Labor Legislation, on Child Labor, 1910, and the Employment of Women, 1909, have already been referred to. From the former, which appeared as we are going to press, we learn that there are prohibited occupations to children in all the States without exception--a statement which certainly would not have been true some years since. These prohibited groups of employment are generally, to male and female, dangerous machinery and mines, and to females also saloons; and there is nearly universally a limitation of all labor to above the age of twelve or fourteen for all purposes, and to above fourteen or sixteen for educational purposes, besides which there is a very general prohibition of acrobatic or theatrical performances. Girls are sometimes forbidden to sell newspapers or deliver messages for telegraph companies or others. Compulsory education is, of course, universal, and the machinery to bring it about is generally based upon a system of certificates or cards, with truant officers and factory inspectors. According to the encyclopaedias, some five hundred thousand women were employed in England about twenty years ago, of whom about three hundred thousand were in the textile mills. In Massachusetts alone there were two hundred and eight thousand women employed, according to the last State census. Neither of these figures include the vast class of domestic service and farm labor. The inclusion of this would swell the proportion of adult women employed in gainful occupations to at least one in four, if not one in three. Congress itself has recently been investigating the question whether "home life has been threatened, marriage decreased, divorce increased out of all proportion, and the birth rate now barely exceeds the death rate, so that the economic and social welfare of the country is menaced by this army of female wage earners" (see _Boston Herald_, April 2, 1908). It appeared that in 1900 one million seven hundred and fifty thousand children were at work between the ages of ten and fifteen, of whom five hundred thousand were girls. This and other considerations have led to the movement for national child-labor laws already discussed. Perhaps the most dangerous tendency, at least to conservative ideas, is the increasing one to take the children away from the custody of the parents, or even of the mother, and place them in State institutions. Indeed, in some Western States it would appear that the general disapproval of the neighbors of the method employed by parents in bringing up, nurturing, educating, or controlling their children, is sufficient cause for the State authorities to step in and disrupt the family by removing the children, even when themselves unwilling, from the home to some State or county institution. Any one who has worked much in public charities and had experience with that woeful creature, the institutionalized child, will realize the menace contained in such legislation. Finally, it should be remembered that throughout the United States men are universally liable for their wives' debts, short of some quasi-legal separation; on the other hand, wives are never liable for the debts of their husbands. XVIII CRIMINAL LAW AND POLICE There is no very general tendency toward new legislation in matters of felony, and many States are still content to remain with the common law. Such legislation as there is is mainly concerned with the protection of women and children, alluded to in the last chapter. In matters of less serious offences, of legislation creating misdemeanors or merely declaring certain acts unlawful, there are three main lines: First, legislation usually expressive of the common law against conspiracies of all sorts, combinations both of individuals and of capital, already fully discussed. Next, the general line of legislation in the interest of the health of the public, such as pure food and drug laws, and examination for trade or professional licenses; and finally laws protecting the individual against himself, such as liquor and anti-cigarette or anti-cocaine laws. It is hardly necessary to more than illustrate some of these matters. Then there are the laws regulating punishment for crime, laws for probation or parole, indeterminate sentences, etc., all based on the modern theory that reform, not retribution or even prevention, is the basis of penology. Such laws have been held constitutional, even when their result is to arbitrarily increase a man's sentence for crime on account of his past or subsequent conduct. Finally, and most important, there is the legislation regulating the actual trial of cases, indictments, juries, appeals,--the law of court procedure, civil as well as criminal, which for convenience we may consider in this chapter. Of the first sort of legislation, we have noted that in many States adultery, in many States simple drunkenness, in other States mere single acts of immorality, are made felonies. In 1892 the State laws against food adulteration begin, which, by 1910, have covered milk, butter, maple sugar, and many other subjects. By the Federal pure-food law of 1906, applying to Interstate commerce in such articles, it became advisable for the States to adopt the Federal Act as a State law; also for the sake of uniformity a few States have had the intelligence to do so. The trades of fat-rendering and bone-boiling are made nuisances by statute. In 1896 we note the first statutes against lynching. In 1897 local option prevails in Texas, and the blue laws of Connecticut are abolished to the extent that recreation on Sundays is no longer prohibited. Local option and anti-lynching laws continue during the next two or three years, and by 1900 twenty-four States have pure-food laws, which, however, are ineffective because they impose no sufficient penalty. In 1903, in consequence of the assassination of President McKinley, Washington and Wisconsin make the advocating anarchy a felony. Twenty-one more States pass pure-food laws, and nearly all the States have gone over to local option from State-wide prohibition, to which latter principle only three States now adhere. In 1904 Mississippi and Virginia adopt more stringent laws against vagrancy, and 1905 is the year of active legislation on the indeterminate sentence, juvenile courts, parole and probation, with two more statutes against mobs and lynching. In 1907 the States are busied with the attempt to enforce their prohibition regulations against the interstate commerce jurisdiction of the Federal government. Solicitation of interstate orders for liquor is forbidden in Mississippi, and it is provided that shipments sent C.O.D. are not to be moved one hundred feet or given away; also, that the mere possession of an internal revenue receipt from the United States government is _prima facie_ evidence of an offence against the State law. Statutes of this kind led to renewed conflict between State and Federal authority. Virginia adopts the statute against giving tips or any commissions; see p. 244 above. In 1908 we find more parole and probation laws, two prohibition and three local-option laws, and four new pure-food statutes. Coming to matters of court procedure, in 1890 one State provides that there should never be called more than six witnesses for each side in any criminal case, which oddly reminds one of early English trials by compurgation; but is, of course, quite unconstitutional in this country. In 1893 Connecticut adopts a statute that honorably discharged soldiers and sailors addicted to drink are to be "treated" free at the State hospital. The definition of the word "treated" seems ambiguous, but in any event it is a pleasing reminder of Bishop Berkeley's remark that he would "rather see England free than England sober." Some States provide for a jury of eight in criminal cases and for a verdict of three-quarters in civil cases--a statute of questionable constitutionality. Very generally throughout the twenty years studied by us, the States have adopted stricter rules for the admission of attorneys at law to practise at the bar. In 1895 Pennsylvania yields to the physicians and passes a statute forbidding them to disclose communications of patients, but the statute only applies to civil cases. More States provide for verdicts by a majority of the jury. Maryland goes Pennsylvania one better in extending the professional privilege to newspaper reporters; that is to say, we find a statute that they may not be compelled to disclose their sources of information, an excellent statute for the yellow journal. In 1897 California abolishes capital punishment; there has been a general tendency in this direction, of recent years, although some States, having tried the experiment, have returned to it again, as has the Republic of France. In 1899 the privilege from testifying is extended in one State also to trained nurses, and in others to physicians, even in criminal cases, although they may testify with the patient's consent. The same law was adopted in Iowa in 1900, Ohio does away with the common law of libel, except the plaintiff can prove actual malice. By this year, seventeen States expressly allow women to practise law, and twenty-eight do so by implication. The Colorado statute for a three-fourths verdict is held unconstitutional. The regulation of the liquor traffic is, perhaps, after the labor question, the most universal subject of legislation in occidental nations. Experts on the matter tell us (E.L. Fanshawe, "Liquor Legislation in the United States and Canada," Report to Parliament, 1892) that there have hitherto been but three, or possibly four, inventions--universal or State-wide prohibition, local option, license, high or low, and State administration. The last was recently tried in South Carolina with more or less success. Prohibition by a general law does not seem to be effective; local option, on the contrary, does seem to be so. But the general consensus of opinion, to which Mr. Fanshawe comes, and which seems still to be held by most intelligent American publicists, is that on the whole high license works best, and this the women themselves have just voted in Denver; not only because it actually prohibits to a certain extent, but it regulates and polices the traffic, prevents the sale of adulterated liquor, and to a considerable extent the grosser disorders and political dangers that attend the bar-room. On the other hand, the power of licensing should never be granted to any political body, but should be granted under fixed rules (determined by geographical position and the local opposition or desire) by the local government. These rules should not be arbitrary, and the person applying for license should have the right to appeal to some court. Matters of bribery and political corruption have been somewhat anticipated under Chapter 14. Suffice it here to say that the States very generally have been adopting statutes making bribery criminal and a cause of permanent disqualification from all political right, either voting or holding office, and this applies both to the person bribing and the person receiving the bribe. Bribery by offers or promise of employment is a far more difficult matter, but this matter also certain States have sought to regulate. There are, of course, thousands and thousands of city ordinances relating to the criminal law, but usually to minor offences or matters of police regulation. Undoubtedly the duplication of them tends to make us not a law-abiding community. It was the present Boston police commissioner who complained that there were more than eleven thousand ordinances in Boston, which everybody was supposed to know. We must let the whole matter go by saying that there is a general attempt at universal police regulation of all the actions of life, at least such as are conducted outside of a man's own house. Sunday laws, Sabbatarian legislation, have, of course, very largely been abandoned, except when restored in the interest, or supposed interest, of labor. In the State of New York, for instance, barbers could only shave on Sunday in the city of New York and the town of Saratoga; the reasons for the exception are obvious. Coming to general principles of penology, there is no doubt that of the three possible theories, revenge, prevention, and reform of the criminal, it is the latter that in the main prevails throughout the United States. An investigation was conducted some years since by correspondence with a vast number of judges throughout the world, and it proved that this was also their principle of imposing sentences, in the majority of cases. More radical change is found in that legislation freeing prisoners on parole, providing indeterminate sentences, and in the creation of special courts for boys and young women, with special gaols and reformatories. Jury trial, of course, remains substantially unchanged from the earlier times, only that the jurors are now in most States permitted to read or to have read the newspapers, and that the government has a right of appeal when the verdict has gone for the prisoner on a point of law. This matter, upon President Roosevelt's recommendation, was embodied in an act of Congress. The legislation making it criminal to advocate assassination or anarchism has been adverted to when we were considering the rights of aliens. In England, it is treason to imagine the death of the king. There is no constitutional reason why it should not be treason to imagine the death of the president, or perhaps even the subversion by force of organized society. Such laws have been passed in Washington, Wisconsin, and other States. It has, in some States, been made a capital offence to kidnap a child, and, as has been elsewhere said, the rigor of the common law is very generally preserved for the crime of rape. The most active effort to-day for legislation in matters quasi-criminal is that to extend jury trial over cases of contempt of court, particularly when in violation of a chancery injunction when the act itself is criminal. The greatest need of criminal legislation is in the writer's opinion in matters of business or corporate fraud, and in revival of our older English law against the extortion or regrating of middlemen, the engrossing of markets, the artificial enhancing of the prices of the necessaries of life, and the withholding, destruction, or improper preservation of food. But most of all, as President Taft has urged, greater speed and certainty and less technicality in court trials for crime--a reform of our legal procedure. XIX OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE PUBLIC DOMAIN The matter of most interest in modern American legislation for municipal government is probably the home-rule principle. That is, statutes permitting cities or towns, or even villages, to draw and adopt their own charters and govern themselves in their own way. The charter thus adopted may, of course, be the old-fashioned government of mayor, aldermen, common council, etc., or it may be the newly invented government by commission, based substantially on the theory of permanent officials chosen at infrequent intervals, and officers, in so far as possible, appointed, and not elected. The one makes for efficiency, the other for democracy. At present the American people seem to have a craze for efficiency, even at the expense of representative government, and of principles hitherto thought constitutional. It is impossible to tell how long it will last. It may carry us into the extreme of personal government, national, State, and local, or history may repeat itself and we may return to the principle of frequent elections and direct responsibility to the voters under the arbitrament of the courts of law. We may go on to special courts (declared odious in the Great Case of Monopolies) and administrative law, or be content with improved understanding of the law we already have. These matters are too large for us; coming down to more concrete facts, we find that the general tendencies of legislation upon State, and particularly municipal, government are to somewhat enlarge its functions, but considerably to limit its expenditure. Greater distrust is shown in legislatures, municipal as well as State, and a greater trust and power reposed in individual heads, and a much greater power intrusted to more or less permanent boards and commissions, usually not elective, and often clothed with vast powers not expressly submitted to the scrutiny of courts of law. The purposes of education are somewhat extended, generally in the direction of better education, more technical and practical and less "classical."[1] Charity includes a largely increased recreation for the people, State provision for many more classes of the invalid and incompetent, specialized homes for various sorts of infirm or inebriate, and some little charity in the guise of bounties of seed, etc., to needy farmers, which latter, however, have usually been held unconstitutional. [Footnote 1: Though a lady orator in Boston this year complains to an audience of labor unionists that trades schools and industrial education tend to "peasantize" the poor. Peasanthood was the condition of the agricultural laborer; it was skilled labor that made him free--neither peasant, peon, nor villein. See p. 20, above.] Thus, in 1890 North Dakota limits the debt of cities to five per cent.; but permits county loans to raise seed grain for needy farmers; other States extend the principle of socialism to electric lighting, gas, natural gas, water, sewers, agricultural drainage, irrigation, turnpikes, and cemeteries. That is to say, all may be built, maintained, or run at the municipal expense, or under municipal control. In 1895 Wisconsin, North Carolina, Texas, and other States carefully limit State, county, town, or city taxes to prescribed rates. Texas requires a two-thirds vote on the issue of municipal bonds, and fixes the debt limit at five per cent. In 1896 Missouri rejects a constitutional amendment permitting municipal gas and water socialism on majority vote of the voters. The same year the failure of such enterprises begins to show itself in a statute of Iowa authorizing municipal plants to be sold upon a popular vote. The socialist town of Hamilton, Ohio, actually went into the hands of a receiver; a similar result followed the English experiments in the towns of Poplar and West Ham. In 1897 many other States adopted a limit for State, city, county, or town taxes. Indeed, it may be stated generally, without going into further details, that such laws are practically universal throughout the South and West, and prevail to some extent as to cities only in New England, and the same may be said of laws fixing a debt limit which States, counties, cities, or towns may not exceed. Such laws are very generally evaded, as by leasing desired improvements of a private company, or (in Indiana at least) the overlapping of municipal districts; thus there may be (as formerly in England) city, town, school district or poor district, each separate and not conterminous. While it is obvious that municipal socialism has rather decreased in the last ten years, laws restricting the granting of franchises have become far more intelligent and are being generally adopted. The best example of such legislation is probably to be found in Kansas. The general principles are that no franchise can be given but for a limited time, that it must be bought at public auction, that the earnings beyond a certain percentage on investment must revert to the city, and that there must be a referendum to popular vote in the locality interested. In 1899 Michigan declares the municipal ownership of street railways unconstitutional, but Nevada passes a statute for municipal ownership of telephone lines. In 1903 the municipal ownership of gas and oil wells is permitted in Kansas, and of coal or fuel yards in Maine. A law similar to the latter was declared unconstitutional by the Massachusetts Supreme Court. Missouri adopts a sweeping statute for the municipal ownership of "any public utilities" in cities of less than thirty thousand population. In 1904 Louisiana permits small towns to own and operate street railways. Other States copy the Missouri statute as to municipal ownership of all or any public utilities, and generally the principle is extended, but only in a permissive way; that is to say, upon majority vote, and this seems to be the present tendency. The most striking present experiment is in Milwaukee; both Haverhill and Brockton tried socialistic city government in Massachusetts, but abandoned it. Civil-service reform has very generally made progress during the past twenty years in State and city governments, and probably the principle is now more or less recognized in a great majority of the States. Comparatively little is to be said as to internal improvements. The Michigan Constitution provides that the State shall go into no internal improvement whatever, and this, of course, was the older principle without any express constitutional provision. North Dakota and Wyoming provide that the State cannot be interested in works of internal improvement except upon two-thirds vote of the people. South Dakota also provides that the State may not engage in them in any case; Alabama, that it may not loan its credit in support of such works; and Maryland, Minnesota, and Wisconsin, that it may not contract debts for the same, or in Kansas be a party to carrying them on. In Virginia, no county, city, or town may engage in any work of internal improvement except roads. Many of the States, however, specify a considerable number of purposes for which State, cities, or counties may give or loan their credit; and the matter of municipal socialism has just been discussed. Very generally, the States have created agricultural experiment stations and model farms, drainage districts in the South, a levee system on the Mississippi River, and irrigation districts in the West; artesian wells in Texas, and in several States, State dairy bureaus. In specialized products, such as beet sugar, there is often provision for a State agricultural bureau, and nearly always for general agricultural as well as industrial instruction. The States are only beginning to adopt State forests, or forest reserves, Massachusetts and New York leading the way. Forestry commissions exist in a few States, but the very slightest beginning has been made at forestry laws. No control is as yet exercised over reforestation or replanting; a few of the Western States exempt growing trees, or the land covered by growing trees, from more than a nominal tax, notably Indiana and Nebraska. The forestry laws are, however, increasing. In 1903 we find one, in 1904 five, and in 1905 six, with the tree bounty law in North Dakota, and two States exempting forest lands from taxes. There are four statutes this year for fish or game preserves. In 1907 four States create forestry boards, and two exempt forests from taxation, and in 1908 growing trees are exempted in Massachusetts and Rhode Island. But under the unlimited power of Congress over Federal territory not yet incorporated into States, or not ceded to the State when incorporated, it is to the Federal government that we have looked for the creation and preservation of parks, forest reserves, and natural reserves generally. How far it may constitutionally create such within the lines of old States, or on land of which it is otherwise incapable of ownership, is a constitutional question still undecided. The educational functions of the State are, of course, a peculiar principle of American civilization. Nearly all State constitutions provide that education is a natural right, and the first common school supported by general taxation appears in the Colony of Massachusetts Bay before the year 1640. The principle of compulsory education exists throughout all the States, and in all education of the most diversified kind is given, from the primary school or kindergarten to the State university or technical school of applied science, trade, or business. Nearly all the States have established State universities which are free or open at a nominal charge. Massachusetts continues to rely upon a semi-private institution, Harvard University, which, indeed, is expressly mentioned in its constitution. Provision is universally made also for evening schools, for industrial schools, for public libraries, and for popular elections, and besides the ordinary educational laws and the truant laws, there is in the statutes concerning labor matters abundant machinery for requiring some education as a preliminary to any employment. The age of compulsory education may be said to average between the ages of eight and fifteen, though the limits are extended either way in the divers States. Farm schools and industrial reform schools generally exist, both as a part of the present system and of the educational department. Coeducation in State schools and colleges is almost universal. On the other hand, as we have shown, the segregation of the races is in some States insisted upon. Several States forbid the employment of teachers under the age of sixteen, or even eighteen. Free text-books are generally provided. The period of compulsory schooling varies from the classic twelve weeks in the winter, as in old New England, to substantially the full academic year. Textile and other manual training schools exist in some States, but have generally evoked the opposition of organized labor, and are more usually created by private endowment. The tendency of civil service reform legislation, furthermore, has been to require a certain minimum of education, though it may be feared that the forecast of De Tocqueville remains justified; our national educational weakness is our failure to provide for a "serious higher instruction." The great question of taxation we may only mention here by way of exclusion. It is naturally a matter for treatment by itself. The reader will remember (see chapter VII) that nearly all the States have now inheritance taxes besides direct property taxes, and many of them have income taxes and, in the South particularly, license taxes, or taxes upon trades or callings. They all tax corporations, nearly always by an excise tax on the franchise or stock, distinct from the property tax or the tax upon earnings. In both corporation taxes and inheritance taxes they are likely to find themselves in conflict with the Federal government, or at least to have duplicate systems taxing the same subjects, as, indeed, already considerable injustice is caused by inheritance taxes imposed in full in each State upon the stock of corporations lying in more than one State. In such cases the tax should, of course, be proportionate. The principle of graded taxation in the matter of incomes and succession taxes has been very generally adopted, not as yet in any direct property tax, except that a small amount of property, one hundred dollars or five hundred dollars, is usually exempt. The principle of imposing taxation not for revenue, but for some ulterior or ethical purpose, such as the destruction of swollen fortunes, is liable to constitutional objection in this country, though the courts may not look behind the tax to the motive, unless the latter is expressed upon the face. For this reason, the present corporation tax, on its surface, is imposed solely for the purpose of raising revenue, though in debate in Congress it was advocated mainly for the object of bringing large corporations under Federal examination and control. The last matter relating to taxation, that of bounties, we have discussed in chapter VII also. State aid bonds, or bonds of counties, cities, and towns, issued to encourage industries, raise a question far more complex than the simple bounty. Such legislation has, however, practically ceased throughout the country, except in the form of exemption from taxation. It has been recognized by a long line of decisions that it is constitutional to grant such aid to railroads, but it may be questioned in almost any other industry. A mere exemption from taxation, especially for a certain number of years, rests on a stronger constitutional basis. Many of the Southern States have recently passed laws exempting manufacturing corporations, etc., from taxation for a definite number of years, and such provisions are found in one or two State constitutions. When they only rest upon a statute, however, they are always at least litigable at the suit of any tax-payer. So, bonds issued by the city of Boston under a statute expressly authorizing them to enable land-owners to rebuild after the great fire, were held to be void. A Federal loan was proposed to raise money to lend to the inhabitants of San Francisco to rebuild after the earthquake, but failed of enactment. It will be remembered that the States have very generally no power to engage in internal improvements (see above). _A fortiori_, therefore, they can hardly loan money or credit to private interests be they never so much for the general benefit. The difficulty of testing all such laws has been adverted to, at least in the case of taxation. For that purpose Massachusetts has a wise law providing machinery by which such matters may be contested upon the action of any ten tax-payers. There are three great questions before us in the immediate future--the negro, local or self government, and taxation, which last is the chief problem of city and town government. The world has never before tried the experiment of municipal government, where those who have the local vote do not generally pay the local taxes. XX FINAL One would suppose that a democracy which believes in the absolute panacea of law-making would take particular pains with the forms of its legislation, to have its statutes clear, in good English, not contradictory, properly expressed and properly authenticated. You would certainly suppose that the people who believe that everything should be done under a written law would take the greatest pains to see that law was _official_; also, that it was clear, so as to be "understanded of the people"; also, that it did not contain a thousand contradictions and uncertainties. When our--I will not say wiser, but certainly better educated--forefathers met in national convention to adopt a constitution, one of the first things they did was to appoint a "Committee on Style." It is needless to say that no such committee exists in any American legislature. You would suppose they would take pains to see that all the laws were printed in one or more books where the people could find them. This is not the case in New York or in many of our greater States. You would also suppose that when they passed another law on the same subject they would say how much of the former law they meant to repeal, but in many States that also is not done. It would probably be too much to hope that they should not confuse the subject with a new law on a matter already completely covered; but the form of their legislation should be improved at least in the first three particulars I have mentioned. What is the fact? The secretary of one new State reports that the laws, as served up to him by the legislature, are "so full of contradictions, omissions, repetitions, bad grammar, and bad spelling" that it has been impossible for him to print them and make any sense; the bad grammar and the bad spelling, at least, he has, therefore, presumed to correct. But what should surprise us still more is, that in very few of our States is there any authentic edition of the laws whatever, and quite a number do not publish their constitutions! The worst condition of all is found in the national legislation of Congress, until very recently in the great State of New York, and in those States which have adopted the code system generally. I do not say this as an opponent of general codes, but I am constrained to note as a fact that those States are the ones which have their legislation in the worst shape of any. The charm of the statute theory is that the half-educated lawyer or layman supposes he can find all the laws written in one book. Abraham Lincoln even is said to have had the major part of his "shelf of best books" composed of an old copy of the statutes of Indiana, though I can find no traces of such reading in the style of his Gettysburg address. But how far is this democratic claim that the laws of a State are all contained in one book borne out by the facts? Of our fifty States and Territories only Alabama, Arizona, the District of Columbia, Connecticut, Delaware, Maine, Maryland, Massachusetts, Montana, New Hampshire, New York (partially), North Carolina, Rhode Island, South Carolina, Vermont, and Wisconsin (sixteen States) have any official revision or "General Laws"; that is to say, one or more volumes containing the complete mass of legislation, up to the time of their issue, formally enacted by the legislature. A number of other States have what are called "authorized revisions" or authorized editions of the law. This phrase I use to mean a codification by one or more men (usually a commission of three) who are duly appointed for the purpose, under a valid act of the State legislature, but whose compilation, when made, is never in form adopted by the legislature itself. Leaving out the constitutional question whether such a book is in any sense law at all--for in all probability no legislature can delegate to any three gentlemen the power to make laws, even one law, much more all the laws of the State--leaving out the constitutional question. It is very doubtful how far such compilations are reliable, although printed in a book said to be authorized and official, and held out to the public as such. That is to say, if the real law, as originally enacted, differs in any sense or meaning from the law as set forth in this so-called "authorized publication," the latter will have no validity. Indeed, some States say this expressly. They provide that these compilations, although authorized, are only admissible _in evidence_ of what the statutes of the State really are--that is to say, only valid if uncontradicted. It was impossible to correspond with all the States upon this point--if, indeed, I could have got opinions from their respective supreme courts, for no other opinion would be of any value. The compilation of the State of Arkansas says, somewhere near its title-page, that it is "approved by Sam W. Williams." It does not appear who Sam W. Williams is, what authority he had to approve it, or whether his approval gave to the laws contained in that bulky volume any increased validity. This is a typical example of the "authorized" revision, and this is the state of things that exists in such important States as Arkansas, California, Colorado, Florida, Hawaii, Idaho, Iowa, Kansas, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Oregon, South Dakota, Tennessee, Utah, Virginia, and Wyoming (twenty in all). Before leaving these States, which do have some form of "revised statutes" or complete code--and be it remembered that I am never here speaking of annual laws, for however bad their form and the form of their publication, they are usually, at least, _official_--it will be interesting, and, I think, throw further light on the subject, to cull some passages from the laws of States having such "authorized revisions," to show how far their real authority extends. The general statutes of 1897 of the State of Kentucky say on their title-page that they are an authorized compilation approved by the Supreme Court, but the form of approval of the Supreme Court of Kentucky runs as follows: "Although we consider this duty not lawfully imposed upon us," they say that, so far as they have observed, they "detect no errors in the compilation and it seems to have been properly done." Of how much value such approval would be in case there turned out to be a discrepancy between the compilation and the original statute, I leave to the lawyers to judge. The compiled laws of New Mexico of the same year, made by the solicitor-general, contain an amusing statement under his own signature, that he believes "a large part of the laws he there prints are either obsolete or have actually been repealed by certain later statutes," but he, as it were, shovels them in, in the hope that some of them may be good! The commissioners of the State of North Dakota go still farther. Their code of 1895 bears a statement that it is, by authority of law, "brought to date" by the commissioners, who go on to say that they have compared the codes of other States and have added and incorporated many other laws taken from such codes of other States, apparently because the commissioners thought them of value! One must really ask any first-year student of constitutional legislation what he thinks of that statement, not only of its constitutionality, but of its audacity. Finally, the State of South Dakota says, in its statutes of 1899, what I quoted at the beginning--that "all the laws contained in the book are to be considered as admissible in evidence," but not conclusive of their own authenticity or correct statement. We now come to the third, and, from the point of view of the believer in statutes, probably the worst class of all. That is to say, States which have no official or authorized compilation whatever and which rely entirely upon the enterprise of money-making publishers to make a book which correctly prints the laws, and all the laws, of the State in question. For one State, at least, such a compilation was made by a few industrious newspaper correspondents at Washington! The States and Territories that are in this cheerful condition are, as I have said: New York (in part) the Territory of Alaska, California, Colorado, Illinois, Indiana--that is to say, there has been no official revision since 1881 and everybody, in fact, uses a privately prepared digest--Louisiana, Michigan, Minnesota, Mississippi, Ohio, Pennsylvania, Washington, and West Virginia (fourteen in all). Besides this, there are other States such as Wisconsin and Indiana, already mentioned, where there is no official _recent_ revision, so that everybody depends upon a private compilation, which is the only one procurable. So much for the authenticity of the books themselves which contain the laws upon which we all have to depend. Now, coming to the form of the laws. As I have already remarked, there is no committee on style. There is no attempt whatever made at scientific drafting. To give an example of what difference this may make in mere convenience, it is only a few weeks since, in Massachusetts, a chapter of law to protect the public against personal injuries caused by insolvent railway and street railway companies was drawn up by a good lawyer, and contained between twenty and thirty sections, or about three pages of print. It was brought to another lawyer, certainly no better lawyer, but a legislative expert, who got all that was desired into one section of five lines. There is no committee on style, there is no expert drafting. The case of the recent Massachusetts statute declaring the common law to be the common law, and therefore jeopardizing the very object of the statute, will not be forgotten (see p. 188 above). There are certain definite recommendations I should like to make. First, adopt the provision that "no statute shall be regarded as repealed unless mentioned as repealed, and when a law is amended, the whole law shall be printed as amended in full." This would acquaint the legislature with the law already existing, before they proceed to change it. Next provide that all laws shall be printed and published by a _State_ publisher and the authenticity of all revisions be duly guaranteed by their being submitted to the legislature and re-enacted _en bloc_, as is our practice with revisions in Massachusetts and some as other States. Third, the local or private acts should be separated from the public laws, and they might advantageously even be printed in a separate volume, as is done in some States already. But who shall determine whether it is a private, local or special act, or a general law? I can only answer that that must be left to the legislature until we adopt the system strongly to be recommended of a permanent, preliminary, expert draftsman. Finally, no legislation must ever be _absolutely_ delegated. That is to say, even if a revision is drawn up by an authorized commission, their work should be afterward ratified by the legislature. It is said, I think, that the constitution of Virginia, drawn up by a constitutional convention, was never ratified by the people. If so, there is a grave constitutional doubt whether it or any part of it may not be repealed at any time by a simple statute. But can a constituent body of the mass of the people, the fundamental and original political entity of the Anglo-Saxon world, be forbidden from delegating its legislative power, as its representatives themselves are forbidden? The last matter, that of arrangement, order of printing, and form of title, is so directly connected with that of indexing that I shall treat the two things together. Now, there are three different methods of arrangement, or lack of arrangement, to be found in printing the laws of our forty-six States and four Territories, both in the revisions and in the annual laws. The revisions, however, are more apt to have a _topical_ arrangement, and to be divided into chapters, with titles, each containing a special subject and arranged, either topically, or, in some States, even so intelligent otherwise as are Pennsylvania and New Jersey, arranged with the elementary stupidity of the alphabetical system. I say, stupid; when, for instance, you have a chapter on "Corporations," no one can tell whether the legislature or compilers are going to put it under "C" for corporations, under "I" for incorporations, or under "J" for joint-stock companies. The alphabetical system of arrangement is the most contemptible of all, and should be relegated to a limbo at once. The annual laws, of course, are much less likely to have any arrangement whatever. Passed chronologically, they are more apt to follow in the order of their passage. Now these systems as we find them are as follows: in nearly all States public and private laws are lumped together, although in a few they are indexed separately. Most of the States to-day, including all the "code" States, adopt the topical system of arrangement, as, indeed, must be the case in anything that might, by any possibility, be called a code, and even a general "revision" of the statutes will naturally fall into chapters covering certain subjects. A few States, as I have said, cling to the crude alphabetical system, and quite a number have no discernible system whatever. In some States the annual laws are arranged by number, in some by date of passage, and in some apparently according to the sweet will of the printer. In those States which do not arrange them or entitle them by date of passage we have to depend on the crude and dangerous system of citation by page. Acts of Congress are sometimes cited by date of passage, sometimes more formally by volume and number of the Statutes at Large, and more often than either, probably, by the popular name of the statute, such as the "Sherman Act," the "Hepburn Act," or the "Interstate Commerce Law." It seems to me we should recommend one system. That for the codes or general revisions should certainly be topical. That of the annual laws may either be topical or chronological, but the statutes, in whatever order they are printed, should be _numbered_ and cited by number. No alphabetical arrangement ever should be permitted. As to indexing we should urge upon State legislatures, secretaries of State, and official draftsmen (when we get any) that the very excellent system contained in the New York Year Book of Legislation should be adopted for all volumes of State laws. It is as bad for the index to be too big as to be too little, and it does not follow that the good draftsman is a good indexer. The index to our Revised Laws of Massachusetts is contained in one large separate volume of 570 double-column pages. To look for a statute in the index is just about as bad as to look for it in the revision itself. The most important point of all is the proper choice of subject titles. Laws should be indexed under the general subject or branch of the science of jurisprudence, or the subject-matter to which they belong, not too technically and not too much according to mere logic. For example, any lawyer or any student of civics who wished to learn about the labor laws of a State, whether, for instance, it had a nine-hour law or not, would look in the index under the head of "Labor." _Labor_ has become, for all our minds, the general head under which that great and important mass of legislation concerning the relation of all employers and employees, and the condition and treatment of mechanical or other labor, naturally falls. But if you search in our elaborate index of Massachusetts for the head of "_Labor_" you will not find it. If you look under "_Employment of Labor_" you will find it, but you cannot be certain that you will find all of it, and you will find it under so many heads that it would take you quite ten or fifteen minutes to read through and find out whether there is an "hours-of-labor" law or not. On the other hand, purely technical matters, such as "_Abatement_" are usually well indexed, because their names are what we call "terms of art," under which any lawyer would look. But, after all, it does not so much matter what system we adopt as long as it is the same system. At present I know of nothing better than the forty heads contained in the "Principal Headings" of the New York State Library Index, though I should like to change the names of a few. For instance, "Combinations or Monopolies" is not the head to which the lawyer would naturally look for statutes against Trusts. The word "trust" has become a term of art. If not put under "Trusts" it should be under "Restraint of trade" or "Monopolies," but the word "combination" is neither old nor new, legal nor popular. A combination is lawful. If unlawful, it is _not_ a combination, but a conspiracy. The most important statute of the United States is perhaps the most horrible example of slovenliness, bad form, and contradiction of all. The "Hepburn Act" is the amended Interstate Commerce Act, and is printed by Congress in a pamphlet incorporating with it quite a different act known as the Elkins Act, besides the Safety Appliance Act, the Arbitration Act, and several others. We all remember under what political stress this legislation was passed, with Congress balking, the senators going one way, the attorney-general another, the radical congressmen in front, and the president pushing them all. It is easily intelligible that such a condition of things should not tend to lucid legislation, particularly when an opposing minority do not desire the legislation at all, and hope to leave it in such a shape as to be contradictory, or unconstitutional--or both. (This has been intentionally done more than once.) All of it a mass of contradictions or overlaying amendments, the first important part of it which came under the scrutiny of the Supreme Court only escaped being held unconstitutional by being emasculated. Its other clauses have yet to face that dreaded scrutiny. Its basic principle has yet to be declared constitutional, while the only principle which has proved of any value was law already. This wonderful product of compromise starts off by saying "Be it enacted, etc., Section I as amended June 29, 1906." It begins with an amendment to itself. It does not tell you how much of the prior law was repealed, except upon a careful scrutiny which only paid lawyers were willing to give. Upon the old Interstate Commerce Act of 1887, after quoting it substantially in full, it adds a mass of other provisions, some of which are _in pari materia_, some not; some contradictory and some mere repetitions. It amends acts by later acts and, before they have gone into effect, wipes them out by substitutions. It hitches on extraneous matters and it amends past legislation by mere inference. Like a hornet it stings in the end, where revolutionary changes are introduced by altering or adding a word or two in sections a page long, and it ends with the cheerful but too usual statement that "all laws and parts of laws in conflict with provisions of this act are hereby repealed." As a result no one can honestly say he is sure he understands it, any more than any serious lawyer can be certain that its important provisions are any one of them constitutional. And that huge statute with sections numbered 1, 2, 5, 16, 16_a_, etc., with amendments added and substituted, amended and unamended, is contained in twenty-seven closely printed pages. I venture to assert boldly that any competent lawyer who is also a good parliamentary draftsman could put those twenty-seven pages of obscurity into four pages, at most, of lucidity, with two days' honest work. By how little wisdom the world is governed! And how little the representatives of the people care for the litigation or trouble or expense that their own slovenliness causes the people! For the necessity of political compromise is no excuse for this. I therefore urged before the National Association of State Libraries, at their annual meeting of 1909, that they should use their influence with the various State governments at least--"1, that all revisions be authenticated, authorized, and published by the State; 2, that the annual laws be separated, public from private, and be printed by numbered chapters arranged either chronologically or topically; 3, that the indexes be arranged under the forty general heads used by the New York State Library in its annual digest, with such additional heads as may, perhaps, prove necessary in some States, such as, for instance, Louisiana, which has subjects and titles of jurisprudence not known to the ordinary common-law States; 4, that the constitutions be printed with the laws; 5, that every State, under a law, employ a permanent, paid parliamentary or legislative draftsman whose duty it shall be to recast, at least in matters of style and arrangement, all acts before they are passed to be engrossed." Any private member introducing a bill can, of course, avail himself of the draftsman's services before the bill is originally drawn. His advice may be required by the legislature or by legislative committees on the question whether the proposed legislation is necessary, that is to say, whether it is not covered by laws previously existing. It shall be his duty then to edit the laws, arrange them for publication, and to authenticate by his signature the volumes of the annual laws. One person is better than two or three for such work, but he should be paid a very large salary so that he can afford to make it his life work. He should be appointed for a very long term and should have ample clerical assistance. It should also be his duty to correspond and exchange information with similar officials in other States. In other words, he with his assistants should be the legislative reference department. These recommendations were duly referred to the Committee on Uniformity in preparation of session laws. * * * * * At some risk of wearying the reader I have attempted superficially to cover a very extensive field. I started with quoting Blackstone's remark that there is no other science in which so little education is supposed to be necessary as that of legislation. These words were penned by him more than one hundred and fifty years ago and there is still no book upon this subject; the books on Government, Parliamentary Law, and Hermeneutics concerning respectively the source, the procedure, and the interpretation of legislation, not the content thereof. I can but hope to have called attention to the immense importance of this subject, particularly in our representative democracy, and I will beg my readers who have been patient with me to the end to reflect for more than a moment on the extraordinarily novel state of things that this modern notion of the legislative function brings about. It is a commonplace of historical writers to open their first chapter by calling attention to the difference made by steel and electricity, to the fact that it took longer to get from Boston to Washington in 1776 than it does to-day from Maine to California and back; that it took longer even for the rural legislator in the Connecticut Valley to get to his State Capitol than it does to-day to go from there to Washington. But no one, I think, has ever called attention to the enormous differences in living, in business, in political temper between the days (which practically lasted until the last century) when a citizen, a merchant, an employer of labor, or a laboring man, still more a corporation or association, and lastly, a man even in his most intimate relations, the husband and the father, well knew the law as _familiar_ law, a law with which he had grown up, and to which he had adapted his life, his marriage, the education of his children, his business career and his entrance into public life--and these days of to-day, when all those doing business under a corporate firm primarily, but also those doing business at all; all owners of property, all employers of labor, all bankers or manufacturers or consumers; all citizens, in their gravest and their least actions, also must look into their newspapers every morning to make sure that the whole law of life has not been changed for them by a statute passed overnight; when not only no lawyer may maintain an office without the most recent day-by-day bulletins on legislation, but may not advise on the simplest proposition of marriage or divorce, of a wife's share in a husband's property, of her freedom of contract, without sending not only to his own State legislature, but for the most recent statute of any other State which may have a bearing on the situation. Moreover, these statutes, which at any moment may revolutionize a man's liberty or his property, are not as they were in old times--a mere codification, or attempt at the best expression of a law already existing and well "understanded of the people"; but may and probably will represent a complete reversal of experience, an absolute alteration of human relations, a paradox of all that has gone before; and even when they endeavor not to do so, as in the case of that Massachusetts statute above referred to, their authors' lack of education in the science of legislation may unintentionally cause a revolution in the law. And even when a statute does not do this, no lawyer can be certain what it means until, years or decades afterward, it has received recognition from an authoritative court. That is why much complaint has been made of lawyers; they are said not to know their business, not to be able to tell what the law is. The head of a great railroad has recently complained that he was only anxious to obey the law, but had great difficulty in finding out what the law was. Any good lawyer with common sense knows the common law and usage of the people; but no one could tell at the time of its passage what, for instance, the Sherman Act, enacted twenty-three years ago, meant; the twenty-three years have elapsed; the anti-trust law has been before the courts a thousand times, and the best lawyers in the country do not to-day know what it means; and the highest tribunal in the land is so uncertain on the subject that it has ordered the Standard Oil case reargued. This is not to say that one must not recognize the meaning and the need of law-making by statute; of law made by the people themselves to suit present conditions. "There should be a law about it," is the popular phrase--commonly there _is_ a law about it, and the best of all law, because tested by time and experience; only, the people do not realize this, and their power and practice of immediate legislation is not only the great event in our modern science of government, but it is also the greatest change in the rules and conditions of our _living_, and our _doing_, and our _having_. Not only our office-holders, but we ourselves, are born, labor, inherit, possess, marry, devise, and combine, under a perpetual plebiscitum, referendum, and recall. I can only hope that I have made some suggestions to my readers which will awaken their interest to the importance of the subject. INDEX Abbot of Lilleshall case, Abduction, statute against, A.D. 1452, (_see Kidnapping_). Acton Burnel (_see Statute Merchant_). Actors forbidden from swearing on the stage. Administration of estates, unfair laws in American States. Administrative law (_see Boards and Commissions_), still exists in Germany; forbidden by Magna Charta; did not exist in England. Adultery now made a crime. Advertising, signs forbidden; of patent medicines, divorce matters, etc., prohibited. "Affected with a public interest"; use of phrase to justify rate regulation. African labor, etc. (see _Negro_). Agricultural products, exempted from anti-trust laws; stations usually exist in State. Aids (_see Taxation, Taxes_); the three customary. Ale (_see also Sumptuary Legislation_), Assize of. Alfred, laws of (_see Wessex_) Alien, legislation against, in labor matters dates from 1530; rights of, in real estate; in personal property; immigration of, regulated; naturalization of; alien and sedition laws; libel against the government, suits for; general scheme of our legislation concerning; laborers may not be specially taxed; may be forbidden to hold lands. Alienation of affections, discussion of suit for. Allowable socialism (_see Socialism_). American legislation in general, chapter concerning, chapter VI. Anarchism (_see Socialism_), definition of; advocating of, made a felony Anarchists, legislation against; naturalization of; may be denied immigration. Anglo-Saxon law (_see Law_), re-establishment of, chapter concerning, chapter III; was customary law; method of enforcing; its nature, loss, and restoration. Anglo-Saxon legislation (_see also Legislation_). Anti-truck laws. Anti-trust laws (_see Trusts_). Apparel (_see Sumptuary Laws_), statute of 1482. Appeal, right to, in criminal cases given government. Apprentices, early laws of. Arbitration, of labor disputes, laws for; laws aimed against strikes; laws in the British colonies. Archery favored by legislation. Arms (_see Assize of Arms_), chapter relating to, chapter XIII. right to bear; does not extend to Parliament; history of; made compulsory; right to bear established in bill of rights; does not include concealed weapons. Army (_see Standing_), use of; its bearing upon liberty; complained of in petition of rights; used to control internal disputes; use of by President in civil matters objectionable. Arrest, freedom from, under Magna Charta. Artificers and craftsmen (_see Labor_). Asiatics (_see Mongolians_), may not be citizens; legislation against in the Far West; may be unconstitutional; may not be employed in public work. Assembly, right of, as bearing upon freedom of speech; the right to, and free elections. Assignable (_see Negotiable_). Assistance, writs of, in Massachusetts. Assize of Arms. Assize of Bread and Beer. Association, freedom of (see _Combination_), is guaranteed in Switzerland. Atheism does not disqualify a witness. Austin's views of law. "Avocation, affected with a public interest." Bakers, statute of (_see Assize of Bread and Ale_). Bakeshops, bakeries, legislation concerning (_see Sweatshops_). Balance of trade thought desirable as early as 1335. Ballot, form of, (_see Elections_); the Australian, New York, etc. Banishment not a constitutional punishment. Bankruptcy act, the first, A.D. 1515; under Cromwell; national. Battle, trial by. Beds, making of, regulated in Oklahoma and the England of 1495. Beer (_see Sumptuary Legislation, Assize of Beer_). Beggars (see _Vagabonds_). Benefit funds, legislation against. Benefit of clergy, origin of; in modern trials; reason of; modification of in murder, etc.; extended to women; withheld from all women earlier. Betterment taxes (_see Eminent Domain_), limitation of; reason for. Bigamy, a sin, not a crime in the earlier view; statute of; forbidden by statute of James I. Bill of rights (_see Petition of Right, Constitution_). Bills of exchange, invention of. Bills of lading. Bishops, may be appointed by the crown; abolished in 1646. Black death, gave rise to first statute of laborers; plague of, 1348; effect of on prices; Black labor (see _Negroes, Peonage, etc._), in the Orange River Colony. Blacklists (see _Boycotts)_, American statutes against; in modern American statutes; laws against in Germany and Austria. Blackmail statutes. Blackstone quoted as to legislation. "Bloody" statute against heretics, 1539. Boards and commissions, growth of; must be bi-partisan. Bounties, constitutional objection to; usually unconstitutional; in foreign countries; Federal bounties; public appropriations may be justified in times of emergency; State usual subjects of. Bows and arrows (_see Archery_) much used in England. Boycotts (see _Conspiracy_) first recorded precedent of in 1221; "against the common weal of the people" made unlawful in 1503; in modern times; intent the test; statutes; definitions of; unlawful under anti-trust laws; in modern American statutes; Alabama definition of; no European legislation on; right to prosecute as bearing upon right to freedom of speech. Brewer, Justice, Yale address quoted Bribery of votes by employment, etc. (_see Corruption_); recent statute against. Building, laws regulating; sanitary regulations under police power. Bulk, sales in. Business corporations, act of, Massachusetts. By-laws, of guilds must not be in restraint of trade; against the common weal of the people made unlawful in 1503; of corporations must be reasonable; illegal, forbidden, 1503; forbidding appeal to the law courts unlawful; the Norwich tailors' case. Cabinet, functions of in England. Cade, Jack, attainder of; rebellion of, its effect, etc. Canada, legislation on arbitration. Canon law (_see Church Law_), supplanted by common law; early jealousy of. Canons of the Church (_see Canon Law_). Canute, laws of. Capital, combinations of (_see Trusts_). Capital punishment, laws abolishing. Carlyle, his remark on legislation. Carriers, rates of fixed by law. Carter, James C., quoted. Cartoons, laws against. Cash payment of wages, danger of laws for. Caucuses (_see Primaries_), regulation of by law. Celibacy of priests a modern doctrine. Cemeteries, eminent domain for. Centralization, by Federal incorporation law; as caused by the fourteenth amendment. Certificates (_see Stock Certificates, Trust Certificates, etc._). Chancellor (see _Injunction_). Chancery (see _Equity Jurisdiction_), early jealousy of by the people; court of, origin; the star chamber; statute against jurisdiction; in labor disputes. Charity (_see Bounties_), modern legislation concerning. Charter of liberties, of Henry I; of Henry II. Charter (_see Magna Charta_), early royal charters a concession of Anglo-Saxon liberties; as previously existing. Child labor, laws concerning; hours; absolute prohibition of; age limit; dangerous and immoral trades; young girls; in mines. Children, guardianship of; in America, labor of, regulated; guardianship of may be given either parent; rights of in marriage and divorce; tendency to State control of, its effect. Chinese (_see Mongolian_), laws against. Chitty, cited as to conspiracy. Christian Science, laws regulating practice of; not protected by the Constitution. Church law (_see Canon Law_), freedom from; early jurisdiction of; governs sin; of Henry VIII and Mary; of Elizabeth III in U.S. tests. Church of Rome supreme over England. Cigarettes manufacture and sale of forbidden; laws against. Cigar making (_see Sweatshops_). Cincinnati, order of. Citizens (_see Aliens Suffrage, etc._). Citizenship, of American Indians; of other races, chapter XVI. City (see _Government_), debt limited by statute; ordinances in effect laws. Civil law, early jealousy of; supplanted as to legitimacy. Civil rights of negroes, etc. (_see Class Legislation, Liberty, Equality_). Civil service reform, tendency to extend. Clarendon, constitutions of. Class legislation, as to war veterans; as to boycotts; making hereditary privilege. Clergy (_see Benefit of Clergy_). Clerks (_see Benefit of Clergy_), meaning of word; may dress like knights. Closed shop, early case of, (_see Union Labor_). Cloth of gold worn only by the king. Clothing, regulation of by law; manufacture of, a "sweated" trade. Cloths, trade to be free in; act for spinning, weaving, and dyeing of. Coal (_see Fuel_), Massachusetts law regulating sale of. Codes, in the United States; in England. Codification, early, in England; partial. Co-education, present tendency against; universal in State colleges. Cohabitation (_see Fornication_), made a crime in many States. Coin (see _Money_) Coinage, debasement of, forbidden. Cold storage, need of legislation against. Collective bargaining, principle of. Color, persons of (see _Negro_). Combinations (see _Labor, Trusts, Conspiracy_), chapter concerning, chapter XII; the law of; the modern definition of; against individuals; intent makes the guilt; to injure trade; individual injuries to business; to fix prices; Professor Dicey quoted; law of, in European countries; with an evil end forbidden by Code Napoleon. Commerce, legislation concerning, (_see Interstate Commerce, Trade_). Commissions and tips forbidden; government by commission (_see Boards, Administrative Law_). Common law, enforcement of; contrast with Roman law; growth of by court decision; effort to restore soon after the conquest; as distinct from Roman law; as against civil law; how far enforced in United States; early jealousy of chancery power; does not apply in towns of the staple, but the law merchant; superiority over statutes; prevails in criminal matters; self-regardant actions; Massachusetts statute declaring. Common land. Common pleas, court not to follow king's person. Common right shall be done to rich and poor. Commons (_see House of Commons_). Commonwealth of England, constitution of. Commonwealth _vs._ Hunt, 4 Met. 111, case of cited. Communism, definition of (_see Socialism_). Company stores forbidden; so, tenements; company insurance. Compulsory labor (_see Peonage_). Compurgation, trial by. Concealed weapons (_see Arms_). Confirmation of charters. Congress, usurpation of powers by. Conscience, rights of (_see Religion_). Conscription (_see Military Service_), does not exist among English peoples. Consent, age of, in rape; in marriage; the age raised as high as twenty-one; in criminal matters. Conservation (_see Forest Reserves_); of rivers, dates from statute of Henry VIII. Conspiracy, first statute against in 1305; doctrine first applied to maintaining lawsuits; next to combination between mechanics or guilds; reason of common law doctrine of; definition of; determined by intent or ethical purpose; early statutes probably declared merely the common law; definition of in statute of 1304; definition of as evolved in history; finally includes intent to injure another person in his liberties as well as results actually criminal; reason of doctrine of; doctrine under common law; remedies for; combinations necessarily attended with the use of unlawful means; unlawful act is the combining, not any action done; actual result unimportant; intent the question; punishment far more severe than for offences done under it; always unlawful, may not amount to criminality; principle of extended to trades unions and their by-laws; of masons, etc., forbidden in 1425; against the law or customs of the staple town made criminal in 1333; general discussion of law of, chapter XII; continuing conspiracies, doctrine of; extension of, by new statutes; early English law of, discussed with the modern law of combinations; to maintain lawsuits; Conspiracy and the Trade Disputes acts (_English_); copied in Maryland; changing of law recommended in labor matters; English statute of, copied in Oklahoma; doctrine of, contended for by labor unions. Constitutional law (_see Unconstitutional_), growth of in America; applied by the courts in early England; Magna Charta to be interpreted by Ordainours; anticipates in earliest times U.S. Supreme Court. Constitution, State, modern form of; adoption of by referendum. Constructive total loss, origin of doctrine. Contempt of court, effort to obtain jury trial, (_see Chancery, Injunction_). Contract (_see Freedom of_), status of, desirable for labor. Convict-made goods, denial of to interstate commerce. Co-operation (_see Profit Sharing_). Corn, exportation of, forbidden in 1360. "Corners" (_see Engrossing, Forestalling_), unlawful to create at the common law; corners of wheat in Athens; by Joseph in Egypt. Coronation oaths, history of. Corporation, general discussion of, Chapter X; Federal incorporation; first appearance of secular trading corporations uncertain; companies corporate required to record their charters as early as 1426; by-laws of must be reasonable; first trading companies under Elizabeth; early charters of difficult to find; business, origin of; discussion of; peculiar powers of incorporated persons; unknown in Rome and early England; special municipal corporations and monasteries; limited liability of, invented in Connecticut; form of the modern; Federal supervision; powers of in other States; prohibition of; holding stock by; earliest business companies; history of; limited liability; monopoly given to Federal corporations; powers of in other States; the Massachusetts law; two theories of legislation concerning; clash of State and Federal law; the "Trust problem"; discussion of subject by Massachusetts commissioners; now created under general laws; modern legislation concerning; liability of stockholders; payment in of stock; income; "publicity"; monopoly, consolidation, etc.; the holding company; public service; duration of franchise; powers of in other States; have no immunity from giving testimony; are subject to the criminal law; primarily through individual officers. Corrupt practices (_see Bribery_) election laws. Corruption (_see Bribery_), modern statute against. Council, the great, was originally executive and judicial as well as legislative (_see Three Functions of Government_); primarily judicial; legislation incidental to judicial judgments; law declared, not made, by Great Council; development with legislative power into Parliament; the great judicial functions of; in Magna Charta; so-called until 1275. Counsel, right to, etc. Cousins, marriage of forbidden; County courts, early history of; counties may loan for seed. Courts, at first followed the king's person; special royal courts forbidden; our judicial system. Covins (_see Conspiracy_). Crime, distinction from sin; tendency of modern legislation. Criminating (_see Incriminating_). Criminal law and police, chapter concerning, chapter XVIII, modern basis of; procedure in; laws regulating procedure; right of appeal; President Taft's recommendation. Criminal procedure, reform of, necessary. Cromwell, legislation under; laws all repealed, but had some effect upon laws of New England colonies, and _vice versa_; assumed supreme power; he had absolute veto; no constitutional government under; unrestricted will of majority becomes will of one. Cross-bows forbidden except to lords. Crown land. Crown property, wrecks, fish, precious metals, etc. Crusades, expenses of, origin of taxation. Cummins, Governor, his ideas as to trust controlled articles. Curfew laws in early England; in U.S. Custom, of the trade; (_see also Law, Customary Law, etc_.), enforcement of Custom House, regulation of officers of; may not make unreasonable search; travellers to be believed upon their oath. Customs (_see Duties_), the law of England, recognized by early English charters, as well as laws, Customary law, or natural, enforced without sanction: sanction of often the best; sanction not a penalty; early legislation declaring. Dairies (_see Farms_). Danbury hatters' case, desired legislation against. Dane Geld, London free from. Dangerous trades, hours of labor in. Day's work (_see Hours of Labor_). Debtor and creditor, laws concerning. Debts (_see Imprisonment_) laws to enforce collection of not necessary; suits to recover comparatively modern; State, city, etc., for internal improvements; State, municipal or county may be limited by statute; Modern statutes concerning; Imprisonment for forbidden; Municipal limited by statute; limit generally evaded. Delegation of legislative power (_see Three Functions of Government_). Democracy, legislation of. _De odio et atia_, writ of, explained in statute of Westminster II. Department stores, legislation against anticipated in early England; forbidden (_see Trading Stamps_). Descent of property, legislation concerning. Desertion, a cause for divorce. Destruction of food stuffs highly criminal by early law. Diet and apparel (_see Sumptuary Laws_), laws concerning soon repealed, Direct legislation (_see Referendum_), nominations; primaries; elections; taxes (_see Taxation_). Discharge, reason of, must be stated by employer. Discrimination, unlawful under early common law; modern view of; by the "trusts"; the Elkins law against; in ordinary trade; against localities by trusts. Divine right, asserted by King James. Divorce, chapter concerning, chapter XVII; jurisdiction over first in church; reform movement discussed (_see Marriage and Divorce_); equal rights of husband and wife; causes for to both sexes alike; statistics discussed; in most cases given to the wife; whether innocent or not; in England not to the wife for adultery alone; for desertion and failure to support; reforms in legislation; reforms in procedure, preferable; causes now existing; meaning of cruelty, cause for divorce; uniformity of law in; statute for reform of divorce procedure; commissioners created by States; effect of in other States; law formerly appertained to the church; history of in the past; earliest in 1642; first general law that of Massachusetts Bay; corespondents may appear and made defence; crime made cause for; neglect cause for; advertising; remarriage after divorce usually permitted; should be absolute; unchastity the cause if before marriage; government reports upon; in European countries. Doctors' commons lasted until the nineteenth century. Dog, or cat, why usually kept on ships Dogberry, speech to the watch, based on the statute of Winchester. Dogger, statute of; dogger fish, trade in regulated; regrating of dogger fish forbidden; storage and preservation; must be sold before night. Domestic labor, no regulation of. Dorr, rebellion. Double standard in divorce matters; in matters of ordinary morality. Double taxation (_see Taxes_). Double trading, and department stores. Dower right, recognized in Magna Charta; in American legislation. Drainage (_see Irrigation_), laws for usual in the South and West. Drains and irrigation. Drill companies (_see Military Companies_). Droit d'aubaine. Drugs (_see Pure Food Laws_). Drunkenness, first punished by law in 1606; other laws against; in U.S. Due process of law, under Magna Charta; principle may include immunity from self-incrimination. Duties (_see Imports_), first upon wool in Westminster I; General nature of; early revenue laws prohibitive not protective, hence tariffs for protection, not for revenue alone, are constitutional; "new" customs forbidden in 1309; suspension of all duties in 1309 in order to see what the effect is upon the people's prosperity; "new" customs again abolished, saving only the duty on wool or leather; only to be paid upon goods actually sold in England, not upon goods exported; in the United States. Early methods of trial. East India Company, monopoly of, attacked. Edgar, laws of. Education, may be separate for different races; tendency of to be technical; usually includes agricultural instruction; state functions of declared a natural right; compulsory in all states; compulsory age of. Edward I, charter of, in 1297; Restores constitutional principle of taxation; legislation of; grants confirmation of charters. Edward the Confessor, codes of; laws of (_see Wessex_); laws of sworn to be observed by Norman kings; laws of restored by Charter of Liberties. Edward II, reign of. Edward III, legislation of. Edward VI, legislation of. Edward VII, minimum wage legislation. Egyptians (_see Gypsies_). Elections (_see Voters_), freedom of, principle dates from statute of Westminster I; local regulation of essential; free right to; house the judge of; right of voting; control of votes of employees; Federal and State authority; regulation of machinery of; of corruption in, 290, 291. Electric power companies, eminent domain for. Elevators, subject to rate regulation; hours of labor on. Elizabeth, legislation of. "Elkins" act, 176 (_see Discrimination, Trusts_); form of, 361. Eminent domain, a modern doctrine; applies to personal property; personal property seized by royal purveyors; damages in; does not exist in England; growth of in United States; public service corporations entitled to; extended to public service corporations; to private corporations; to the taking of easements; damages given for land damaged as well as taken; only for a public use; national uses; State uses; parks and playgrounds; railways, telegraphs, etc. what is a public use; under State constitutions; increased application of; water subject to, in the arid States; powers of Federal government; no more land to be taken than needed. Employers' liability. Employment offices (_see Intelligence Offices_), regulated in Oklahoma, etc. England, statutes of, enforced in United States, 55; New, forbidden to plant tobacco. Englishry, London free from. English language, replaces French; to be used in law courts. English law, restoration after the conquest. Engrossing (_see Forestalling, Restraint of Trade_), first statute against; definition of; of foreign trade; punishment of; forbidden to the merchants called grocers; forms forbidden; final definition of; of corn permitted in certain cases; of butter and cheese forbidden; by trusts. Entail created by statute of 1284. Equality, recognized in charter of Henry II; before the law in Magna Charta; guaranteed by statute of Westminster I. Equity (_see Chancery, Injunction_), separate from law in some States. Equity jurisdiction (_see also Chancery_), jealousy of; its interference with the common law forbidden by statute of, 1311; in abductions; separate still. Eugenics, modern statutes recognizing. Evidence, compulsory intrust cases; legislation upon (_see Incriminating Evidence_). Exclusive contracts forbidden (_see Trusts_). Executive (_see also King_), usurpation of, under Henry VIII. Exemption laws for debtors. Exile (_see Banishment_) forbidden in Magna Charta. Experiments on. Exportation of wool forbidden 1337; corn, 1360; iron. Extortion and discrimination; unlawful under early common laws; rare in railway rates (_see Elkins Act_). Factory legislation (_see Hours of Labor, Labor_), acts exist under police power; as to married women, etc.; the factory system, possible abolishment of; hours of labor limited; the factory acts; stores and dwellings. Fairs (_see Markets_). Farming on shares. Farms, labor on, no regulation of; State, frequently created. Federal and State jurisdiction, effects of; as to use of army; question as to prohibition laws. Federal government, powers of, in eminent domain. Federal incorporation (_see Corporation, Trusts_) effect of. Federal troops employed by President Cleveland. Federation of Labor (_see Gompers, Samuel_). Female labor, etc. (_see Women_). Ferries, charges of, regulated. Feudal system, imposition of, by Normans in England. Feudal tenures, abolished under Charles I; in United States. Fines must be reasonable principle dates from Westminster I. Fish and game laws, first precedent in 1285; law protecting wild fowl under Henry VIII; snaring of birds forbidden. Fish, destruction of to enhance price made criminal in 1357; universally regrated in American markets; may not be carried out of England. Flume companies, eminent domain for. Food and drugs act (_see Pure Food Laws, Trusts, etc._). Force bills (_see Elections_). Foreclosure of mortgages regulated by statute in United States. Forest reserves created in some States. Forestalling (_see Trusts, Monopoly_), first statute against; definition of; offence gradually lost sight of; laws against, made perpetual under Elizabeth; only repealed under George III; first statute merely inflicts punishment; full statutory definition of; in the staple; next statute that of 1352, applying to wine, etc. or imports; double forfeiture imposed; imprisonment for two years; in cloths abandoned, A.D. 1350; of Gascony wines forbidden in 1532; in fish, milk, etc., forbidden; last complete act A.D. 1551; made perpetual under Elizabeth and repealed in 1772; final definition of; an element of the "Trust,"; by Joseph; in modern statutes. Forestry laws, the first. Form of our statutes, the. Fornication, made a crime; with a woman under age a crime though with her consent. Fourteenth Amendment, securing private property. France, English people not subject to, by statute of 1340. Franchises (_see Corporations_), challenged by _quo warranto_; rates of may be regulated; to be limited in time; to pay taxes; regulation of, meaning of. Frauds, statute of; need of legislation against. Fraudulent conveyances, statute against 1571. Free speech in Parliament finally established under Henry VIII, Freedom in England, early method of attaining; of American Indians secured, (_see Citizenship_); before the law recognized in charter of Henry II, Freedom of contract (_see Labor, Trade_), principle of, value of, of elections, Freedom of speech, legislation relating to, does not extend to anarchistic statements, Freedom of the press, limitations of, meaning of, Freedom of trade, Freehold land, common in United States, Freemen (_see Liberty_), made up Witenagemot, rights of under Magna Charta, rapid increase of after the conquest, French, language, first law in A.D. 1266, customs and law of in force in England, language not to be used in England, coat of arms not to be used in England, language declared to be unknown in England in 1360, Fuel, Assize of, modern statutes, municipal distribution of, Fur, black only to be worn by the king, Futures (_see Forestalling_), buying of unlawful at common law, dealing in forbidden, buying and selling, Fyrd, the early Anglo-Saxon militia. Gambling, contracts forbidden (_see Futures_), Game (_see Fish and Game_). Gas (_see Municipal Socialism_). Girls (_see Women, Labor, Child Labor_), protection of, absolute prohibition of in some occupations, newspapers may not be sold by, may not be telegraph messengers, Gold (_see Silver_). Golden Rule, applied to the law of combination, Gompers, Samuel, quoted, Gospel, society for the foundation of, founded, "Government by injunction" (_see Injunction_), Government, threefold division of, none above law, powers of in militia, chapter concerning, chapter XIX; general principle that of home rule, by individual heads, by boards or commissions, system of taxation, Grand Army of the Republic given special privileges, "Granger" cases, laws, etc., Gratuities forbidden, Great Case of monopolies cited, Grievances, summary of, A.D. 1309, Grosscup, Judge, on Federal incorporation, Guards, private (_see Pinkerton Men_), Guilds (_see Trade Unions_), freedom gained in, meaning of word, all members freemen in towns, partly lawful, partly unlawful in English history, history of, became combinations of employers, their control of all trades, abolished by French Revolution, monopolies recognized under Elizabeth, getting charters take corporate form, may have suggested the corporation, growth of the trade guilds, Gypsies, early statutes against. Habeas Corpus act, foreshadowed in Magna Charta, its predecessor, writ _de odio et atia_ suspension of, by Lincoln, etc. Harvard, John, residence in Southwark, Harvard University, recognized in the Massachusetts Constitution, Hat-pins, legislation against, Hawkins's, definition of conspiracy in pleas of the crown, Health (_see Pure Food Laws, Police Power_). Henry II, laws of, Henry IV, legislation of, Henry VIII, legislation of, declares God created all men free, personal government under, declares himself head of the church, history of the Bloody Statute, Hepburn act (_see Rates_), (_see Interstate Commerce Act_). Hereditary privilege (_see Privilege_). Heresy, first secular law against, A.D. 1400; the bloody statute of Henry VIII against; the statutes. Heretics to be tried in clerical courts and burned if guilty. Hermeneutics, meaning of word. Herrings, ordinance of, to prevent waste and extortion. Highways, State, exist in some States. Hindoos may be naturalized. "Holding" companies (_see Corporations_). Holidays, laws concerning in early England. Holt cited as to conspiracy. Horses, breeding of encouraged by statute; to be over fifteen hands; sale of forbidden. Hotels not entitled to eminent domain. Hours of labor, first fixed in 1495; fixed again, 1514; repealed next year as to city of London; regulation of by combination forbidden; freedom in; modern statutes; of women; in special employments; of child labor; Federal laws concerning; in dangerous trades; in factories, effect of on male labor; attitude of the courts; laws regulating labor of adult males; of women; in special occupations; of children; night work; general discussion; child labor prohibited; age limit; school certificates, etc.; educational restrictions; mines; dangerous or immoral occupations; railroads and telegraph; unsanitary trades; foreign legislation. House of Commons, has sole power of taxation; growth of legislative power (_see Parliament_). House of Lords, abolished 1648. "House of Mirth" at Albany. Husband and wife, may testify against each other; contracts between may be regulated; in divorce matters; right to guardianship of children; husband is head of the family; may fix the abode; power of mother over children; duty of the husband to support the wife and children; they are joint guardians of children; may be witnesses against each other. Ice, Massachusetts convention to regulate price of. Immigration, restriction of by act of Congress. Immorality made a crime. Immunity, principle of discussed (_see Incriminating Evidence_). Impeachment, revival of, process for, in 1621. Imports (_see Duties_). Imprisonment for debt, in the law merchant; forbidden in United States. Improvements (_see Internal Improvements_.) Income tax, history of; in England; may be graded. Incriminating evidence, principle protecting a man from self incrimination; of corporations. Indeterminate sentences. Indexes (_see Statutes_), should be some system of. Indians, American, legislation referring to, under Cromwell; citizenship; history of legislation concerning. Individual rights, legislation relating to, chapter concerning, chapter XV. Individualism, definition of; in labor matters. Industrial Commission, United States, report of on trusts, etc.. Inheritance taxes, in United States; in England. Initiative (_see also Referendum_). Injunction (_see Riots_), origin of in Jack Cade's Rebellion; early use of principle, A.D. 1327; justices of the peace instituted for; under Richard II; repeal of these powers given justices of the peace the very next year; the common law vindicated; power given to chancellor in Jack Cade's case; jealousy of common law still preserved; given against the seduction of heiresses; in labor disputes; (_see also Chancery, Equity Jurisdiction_), government by, may bring on, military abuses; misuse of in America. Injury, to another when not criminal usually not a legal wrong; otherwise, if by two or more working together; to trade, examples of. Inns and ale houses, tippling at, forbidden under King James. Inquisition, constitutional principle against. Insane persons have no right to marriage. Insolvency laws, liberal in United States (_see Bankruptcy_). Instrument of government under Cromwell; only lasted one Parliament; dissolved by Cromwell's soldiers at its first sitting. Insurance funds, legislation against; compulsory and benefit funds (_see Life Insurance_). Intent, a cardinal question in conspiracy questions; a test of the legality of combined action. Internal improvements, States may not engage in, etc.; chapter concerning, chapter XIX; usually prohibited by State Constitution; taxation to aid. Interstate commerce, regulation of acts in; by the commission; the Sherman act; corporations uncontrollable by States; bearing of law on trusts; denied convict-made goods; does not control the treatment of races in public conveyances; in intoxicating liquors; act, discussion of its form. Interstate succession. Intimidation (_see Conspiracy, Boycotts_); in elections. Intoxicating liquor, may not be sold to minors, etc.; tendency to local option; interstate commerce act regarding; general discussion; high license; State-wide prohibition. Intoxication (_see Drunkenness_), formerly made a crime. "Iowa Idea," the. Ipswich (see _Norwich_) tailors of, case cited. Ireland, cruel laws of Edward III. Irish, termed the enemies of the English in 1309; laws against. Irishmen, banished from England; not to attend the University of Oxford. Iron, export of forbidden in 1354. Irrigation, eminent domain for; private, eminent domain for; districts created in the South. James I, legislation of; against sin. Japanese (_see Mongolian_), included in laws against. Jefferson, Thomas, his work on Virginia bill of rights. Jenks, Professor (Oxon), quoted. Jews, and usury; source of revenue in England; excluded from benefit of statute merchant; trade of, in early England; Christians forbidden to live among them; exempt from taxation except to the king. John, King, surrenders England to the Pope. Judge-made law, criticisms of. Judges, method of appointment, changes in. Judicial power, jealousy of; system; present needs. Juries, early regulation of by statute; by 1285 must be of twelve men; compulsory service of jurors dates from 1285; right to, how far preserved; may be less than twelve in criminal cases; three-fourths verdict unconstitutional. Jury trial in contempt of court matters. Juvenile courts statutes for; laws. Keller _vs._ U.S.; U.S.; case cited. Kent, laws and customs of. Kidnapping, made a crime; laws against. King, might not make law; Norman kings attempting to make the law; derived his revenue from his own land; early methods of securing money from Parliament; sovereignty of supreme over the church; power of to repeal laws of England asserted by Henry VIII; proclamation made by to be obeyed by act of 1539; may not leave the realm; proclamations of given the force of law in 1539; subject to common law. Kodaks, legislation against. Labor, general chapter concerning, chapter XI, law of; makes men free; statutes of; early problems in England; compulsory in early England; attempt to make it so in the South; right to early established in England; still regulated; freedom of by statute of 1548; handicraftsmen to use only one mystery in 1360; claims for preferred; combinations, chapter concerning, chapter XII; contracts of labor not enforceable; American statutes, chapter XI; New York legislation, amendment; length of service; freedom of trade and labor; hours of in peculiar trades; in Europe; foreign legislation; legality of combinations; (_see Public Work, Wages etc_). Labor hours of (_see Hours of Labor_). Labor laws (see _Hours of Labor, Factories)_, early English statutes relating to, chapter IV; closely connected with laws against trusts; twenty years of legislation. Labor Unions _(see Trades Unions)_; exemption from anti-trust laws; agreement not to join not to be required; lawful in Europe; funds of to be protected from attack; desire to be exempt from militia service; hostile to militia; may not establish a privileged caste; generally exclude negroes. Laborers, first statute of 1349; possibly never law; confirmed in 1364 and not repealed until 1869; re-enacted in 1360; never law in America; great statute of, 1562; statute of 1388; requiring testimonials; statute of 1402, forbids laborers to be hired by the week; statute of, re-enacted in 1405; statute of Elizabeth, 1562; statute of, extended to London city; confirmed under James I; fixed prices of victuals; laborers not to be imported into State of Oklahoma. Laissez faire school (_see Individualism_) Land system of tenure before the conquest; allodial in United States; subject to eminent domain. Lassalle, doctrine of, anticipated; ideas of, in modern socialism. Lateran council, abolishes trial by ordeal. Laundries, regulation of, etc. Law, English idea of, chapter concerning, chapter I; definition of; American notion of; Anglo-Saxon idea of; originally in England unwritten; law enforced each man for himself; supposed to be known by all; growth of among children; sanction of; notion of as an order of a sovereign to a subject; Roman notion of not understood; unwritten in early England; Austinian notion of quite modern in England; sanction of, not necessarily punishment; early English all customary; always made by the people under Teutonic ideas; English not codified; right to, recognized in Magna Charta; of the land, as expressed in Magna Charta; extended to all people; right to as against military law; form of American statutes. Law merchant, history of; governs all persons coming to the staple. Law reports continuous among the English people since 1305. Laws _(see Statutes_), not made by early Parliaments, but only declared; "We are unwilling to change the laws of England." Lawyers may not sit in Parliament. Legislation _(see also Statutes_); American in general, chapter concerning, chapter VI; proper field of; makes the bulk of modern law; not supposed to be difficult; none in modern sense before the Norman conquest; early growth of in England; beginning of new legislation; sociological only considered; State; our subject; early necessity of; Anglo-Saxon; early English laws recognized order law; form of in England; apt to cease under personal government; American in general; of the British Empire, index to; growth of constructive legislation in America; radical tendency of; to enact unconstitutional laws; division of into subjects; method of in United States; form of, discussed in chapter XX; should not be delegated to commissions; final discussion; no book upon the contents of. Legislatures (_see also Parliament_), history of; to make new laws a modern conception; origin of representative; early, included all fighting men; annual sessions, history of; biennial or quadrennial sessions of; moral cowardice of; modern distrust of; sessions of limited. Legitimacy, common law as to. Lent, observation of, required by statute of James I. Levees on the Mississippi. Liability (_see Corporation_). Libel, and slander, legislation relating to; against government; modern statute abolishing law. Liberties, charter of (_see Charter_), declared by early statutes; restoration of in England; personal, secured by writs _de odio et atia_ and habeas corpus. "Liberty Clause," the great. Liberty (_see also Personal Liberty, Life and Liberty, etc_.), right to, recognized in Magna Charta; special to Kentishmen; in labor matters; of trade. Licensing of trade, laws concerning. Life, liberty, and property (_see Constitutional Law_), makes a convenient division of legislation; identity of constitutional rights to. Life insurance, must be given the negro on the same terms as the white; of children forbidden. Lilleshall case cited. Limitations, statute of, for prosecutions for crime, dates from 1509. Limited liability (see _Corporation_). Liquor (_see Prohibition_), interstate commerce in; (see _Intoxicating Liquor_). Litigation, early, always by way of justification. Lobbying, laws against (_see Bribery_); acts. Local option (_see Intoxicating Liquor_). Local self-government preserved in municipal law. London dock case. London, liberties and customs of recognized in Magna Charta; laws of relating to labor; statute of, customs of, 1285. "Long and short haul clause" (_see Rates_). Looms, engrossing forbidden. Loss of service laws. Ludlow Company, strike at. Lynching, State or county liable for; civil damages for; law of. Machine politics, entrenched by regulation of. Magna Charta, chapter concerning, chapter II, marks the complete restoration of Anglo-Saxon liberties; sworn to in the coronation oath; taxation clause; history of the grants of by King John; of Henry III omits taxation clauses; confirmed more than thirty times by later kings; history of the grant of by Henry III; important clauses of; of John further discussed; to be read twice a year in every cathedral; to be interpreted in the courts as is the American Constitution, under the new ordinances of 1311; never published in French; causes of. Maintenance, statutes against. Majority, powers of, not unlimited. Malice in conspiracy (_see Conspiracy_). Manufacture of cloth regulated by statute. Margins, sales on forbidden. Marine law (_see Sea_). Market towns, regulation of tolls in. Markets, citizens of London forbidden to trade in. Marlborough, statute of. Marriage (_see also Miscegenation_), jurisdiction over first in church; is a sacrament by Roman view; creates a status; not a mere contract at common law; forbidden between English and Irish; religious ceremony first dispensed with under Cromwell; between first cousins invalid in Pennsylvania; modern legislation; may be forbidden to parties of different races; discussion of the common-law marriage; now abolished in New York; the ceremony; chapter concerning, chapter XVII, lawfulness of, determined by law of State; law of formerly appertained to the church; in some States a simple contract; when void because of age; when void because of failure of parents to consent, restriction of by modern statute; between near relations; of insane persons void; of impotent persons; of epileptics; of drunkards; State examination to permit; tuberculosis disqualification for; of consumptives forbidden; of unchaste persons forbidden; medical examinations may be required; common-law marriage abolished in Illinois. Marriage and divorce, chapter relating to, chapter XVII, as related to women's rights question. Married women, regulation of labor of; original laws; have same property rights as men; may be protected by the State; as by hours of labor law; have control of separate property; laws permitting them to act as sole traders; wife-beating made criminal; privileges of. Martial law; struggle against in England; recognition of, in modern State legislation; definition of; habeas corpus suspended under martial law; only by the executive. Martin _vs._ Mott Wheaton case of cited. Massachusetts, business corporations act; body of liberties. Material men (_see Labor_). Meats, servants to eat more than once a day. Mechanics' liens, legislation concerning. Mercantile system, recognized in the statutes of the early fourteenth century. Mercenary soldiers, first employed against Jack Cade. Merchant adventurers incorporated in 1565; charter of. Merchant tailors' case. Merchant (_see Statute_). Merchants (_see Trade_), rights of under Magma Charta; rights of in England early recognized; liberties of reaffirmed in statute of York; free to come and move in England; freedom of in England by statute of York; liberties of in statute of 1340; safety of in England guarded by legislation; having goods to the value of five hundred pounds may dress like gentlemen; may freely trade in England and carry goods out of the realm; may ship in foreign ships. Meyer, Dr. Hugo R., quoted. Middlemen (_see Regrating_), nearly all regraters; laws against; forbidden by law of King James; modern statutes aimed at; need of legislation against. Military law (chapter relating to, chapter XIII), does not exist under English ideas; complained of in petition of right. Military service, chapter concerning, chapter XIII; early objections to; law of; done away with in England; should be subordinated to civil power. Militia, the natural defence of a free State; power of, to enter houses, etc.; to suppress riot; a proper defence, etc.; companies not under government control unlawful (_see Political_). Militia law, new acts concerning; exemption of labor unions from. Milk universally forestalled and regrated in American markets. Mills, tolls of, always regulated. Mines, labor in, hours, etc.; company stores. Minimum wage laws (_see Wages_). Mining companies may have eminent domain. Minor _vs._ Happersett Wallace case cited. Miscegenation, made unlawful by custom; may be forbidden by statute. Mobs (_see Riots_), mob laws, chapter concerning, chapter XIII; prevention of by recent statute; counties or cities liable for damage; damages by, considered in Pittsburg riots; modern statute against. Monasteries, first suppressed 1535; dissolution by Henry VIII. Money, statute of; forbidden to be carried abroad in 1335. Money bills, the province of the lower house. Mongolians, legislation against. Monopolies, abuse of, first appears in statute of 1514; growth of; statute of; growth of feeling against under Elizabeth and James; great case of. Monopoly (_see Trusts_), doctrine foreshadowed in Magna Charta; principle of, makes combination unlawful; still our common law; first formal complaint by the commons, 1571; history of agitation against; statute of 1623; under Charles I; early legislation in the interest of the consumer; staples tending to abolished; of foreign trade frequently granted by Elizabeth; statute of; frequently if not usually given in franchises to corporations; no objection to in foreign trade; corporations invented to gain; general discussion of, chapter IX; rates of, may be regulated; test of unlawful monopoly; in trust cases; of corporations; how far to be permitted. Mormonism (_see Polygamy_), not permitted by the Constitution; agreement to abolish not binding on the State. Mortgages (_see Foreclosure_), foreclosure of, difficult in United States; modern legislation in United States impairs security of. Municipal government (_see Government_), tendency of. Municipal socialism, modern tendency; tendency to decrease; of street railways unconstitutional; of telephone lines permitted; of gas, water, oil, tramways, etc.; of coal yards, unconstitutional; of any public utility in Missouri. Municipal trading (_see Socialism_); elections. Munn _vs._. Illinois U.S. case cited. Murder, trial of clerks for; civil damages for. Mutiny Act in England. Nationalism (_see Socialism_). Natural rights (_see Liberty, Freedom, etc._). Naturalization of socialists, etc.; of aliens, Mongolians, negroes, etc. (_see titles_). Negotiable, meaning of word; what documents are; modern legislation increasing number of; uniform act. Negroes, our treatment of in the past; Africans may be citizens; general analysis of legislation; their political and social relations; in labor; sexual relation; in criminal law; their property rights; in life-insurance matters; their treatment in hotels, jails, etc.; their disfranchisement in the South; a misdemeanor in South Carolina to serve meals to blacks and whites in the same room. Negro labor (_see Peonage_); suffrage. New ordinance of Edward II enacted 1311, revoked 1322. Newspapers, legislation of, relief from libel law. New York, constitutional amendment concerning public work. Nomination, direct; papers. Norman law, substantially Roman; law brought to England by the Normans. Normans, their notion of law; of sovereignty; murder of (_see Englishry_). Northampton, statute of. Northern Securities case U.S. 177. Norwich tailors, case of, cited. Nuisances (_see Police Power_), modern legislation declaring; recent statutes against. Nurses, trained, may be privileged. Nursing of children by Irish nurses forbidden. Oath (_see Religious Tests_). Obstruction of mails and interstate commerce. Ocean (_see Sea_). Oklahoma, labor legislation of discussed; capital of must not be removed under enabling act. Old-age pensions, German. Oleomargarine, legislation concerning. Onslow, Speaker, tells Elizabeth that she is subject to the common law. Oppression (_see Conspiracy, Boycott_), antiquity of. Ordeal, trial by abolished by Lateran Council. Ordinance (_see New Ordinance_) of a city. Oregon, the effect of the initiative in. Organized labor (_see Labor Unions_). Osteopaths, laws concerning; statutes permitting practice of. Outlawry (_see Unwritten Law_), early method of enforcing law; result of personal enforcement of law when mistaken. Output, limitations of, unlawful (_see Restraint of Trade, Trusts_). Parent and child, early control of, by church. Parents (_see Husband and Wife_). Parks (_see Eminent Domain_). Parliament (_see also Legislature_), early function purely judicial; retains the right to tax; early history of, its attempt to recover legislative power; the source of supply; judicial power of; taxation powers of; origin of; word not used in Magna Charta; first represented in; word first used in 1275; first "model" sat in 1295; to be held once or twice in the year A.D. 1311; must be annual; claims the right to ratify treaties; to be consulted on war; rarely summoned under Henry VIII; the Barebones; single chamber under Cromwell; the rump; (_see House of Commons_). Parole (_see Crime_); new laws concerning. Patents (_see Monopolies_) regulated by statute of monopoly. Paupers (_see Poor Laws_). Peachy's monopoly case. Peers (_see House of Lords_) may not speak in elections. Penology, principles of. Pensions, by way of exemption from taxation; vast increase of in United States; to Confederate soldiers; discussion of. Peonage laws, etc.; cases. Perrers, Alice, legislated against; women may not be lawyers. Personal government under Henry VIII; struggle for. Personal liberty, Anglo-Saxon idea of; English idea of; recognized in Magna Charta; in labor contracts. Personal property (_see Property_). Personal rights, chapter relating to, chapter XVI. Petition of the Commons to Parliament not received. Petition of Right, its bearing upon standing armies, etc.; right to. Petrie, Flinders, quoted. Philadelphia railway strike. Philip and Mary, legislation of. Photographs, legislation to prevent. Physicians, may be compelled to testify; privilege of. Picketing, statute against; in modern English legislation; by modern American statutes. "Piece work," work by contract, first permitted by a statute of 1360. Pinkerton men, laws against; armed guards forbidden in Oklahoma; armed guards permitted in Europe; legislation against. Pins must be double headed and have the heads fast soldered. Pittsburg, riots in. Plague (_see Black Death_). Players (_see Actors_). Police power, as controlling property; legislation concerning; definition of; increased legislation in; growth of boards and commissions; definition of by Shaw, C.J.; history of; extends to offensive trades, smells, or sounds but not sights; as to sweat-shops, tenements; no limit to; legislation based on moral reasons; sanitary laws; for safety of public; as to nuisances; prohibition of self-regardant acts; pure food laws; factory acts, etc.; chapter concerning, chapter XVIII. Police protection, guaranteed by liability of the hundred or county; the power; modern extension of. Political rights, chapter concerning, chapter XIV, as to militia duties; interference with. Polygamy not guaranteed by the right to free religion. Pooling of bids in public work unlawful. Pools, unlawful (see _Trusts_). Poor laws, first origin in England, A.D. 1388; of Elizabeth. Poor, support of, in towns where born, 1388; support of, the duty of the State. Pope, powers of in England; authority of extinguished in England, 1535; referred to as Bishop of Rome; may no longer appoint bishops; Henry VIII becomes head of the church A.D. 1534; forbids attendance at English church A.D. 1566. Popular assemblies originally included all fighting men. Popular legislation under Cromwell. Precedent, the true value of. President, proclamations as to tariff, constitutionality of discussed; the commander-in-chief of the army. Press (see _Freedom of Press_). Presser _vs_. Illinois U.S. case cited. Price, prices (see _Tolls, Wages, etc._), the fixing of, early regulation of; fixing of by combination early unlawful except when approved by chancellor; fixing of tried and abandoned in the early Middle Ages; regulation of definitely abandoned, 1389; selling at unreasonable profit forbidden; iron regulated; of poultry fixed in 1363 by reason of the great dearth; regulation of generally, chapter IX, fixing of unlawful, modern statutes; older statutes. Price of bread. Primaries, direct, etc.. Primogeniture abolished in United States. Privacy, right to vindicated under police power; right to. Private armed guards (_see Pinkerton Men_), prohibited. Private property (_see Property_), socialists' attack on. Privilege (_see Class Legislation_), given by recent legislation to certain classes; of physicians, etc., in giving evidence. Probate (_see Administration_), jurisdiction of in courts. Probation (_see Crime_). Procedure, legislation concerning; in the courts. Professions, examinations for. Profit-sharing, miscellaneous matters, etc.. Prohibition laws, effects of; movement for discussed; laws made self-regardant actions a crime (_see Intoxicating Liquors_); tendency to State-wide. Property, private; growth of among children; descent of; personal recognition of in early English statutes; exists only by the law; real, preceded personal property; personal, early protection of; rights of as recognized in Magna Charta; qualifications A.D. 1430; American legislation concerning, chapter VII, rights of simple; rights to; a constitutional right; not a natural right; the creature of law; rights to recognized in Magna Charta; in American constitutions; word first used in Virginia Bill of Rights; natural right to; recognized in State constitutions; attacks upon by legislation; personal taxation of. Protection (_see Tariff_). Protector, power of, exceeded the king's. Protective tariff (_see Tariff_). Public administrators, abuse of. Public domain, chapter concerning, chapter XIX. "Public Interest" (_see Granger Cases, Rates_). Public service corporations, rates may be regulated; distinguished from other corporations in modern statutes. Public work (_see Wages_), definition of. Pullman Company, strike at. Punishment (_see Fines_), must not be cruel or unusual; reform in. Pure-food laws, first example of in Assize of Bread and Beer A.D. 1266; applying to grain, meat, fish; selling unwholesome meat severely punishable in early England; American laws; history of; in States; matters to which they apply; effect of; history of; the Federal act; Pure food and drug laws, their criminal side. Purple the color of royalty. Purveyors (_see Supplies_), royal, might seize property. _Quia emptores_, statute of. _Quo warranto_, statute of, 1289. Race legislation as to labor; question. Racial rights, chapter concerning, chapter XVI, question on labor matters. Railroads (_see Rates_), steam, bonds for voted by cities, counties, etc.; interstate commerce power over rates; hours of labor on. Railways, street, abutters' consent necessary for franchise. Rape, made criminal at common law by statute Westminster I; made a capital offence in 1285; penalty made death in the South as at common law; rigor of the common law preserved. Rates (_see Extortion, Discrimination_), must be reasonable at common law; of public service companies must be uniform; regulation of generally, chapter VIII, of railways; "granger" laws; by State commissions; clash between State and Federal governments; what are reasonable; of gas, water, light companies, etc.; need not be uniform; modern examples of; reason for regulation of; in foreign countries; railway rate act of 1910; the long and short haul clause. Raw material, laws against export of, common in England. Real property, real estate (_see Property_). Recall, the, a new reform. Recommendations, of servants, etc. (_see Black List_), have early origin in England. Referendum (_see Initiative_), modern movement for; in case of franchise. Reform, movements of, in nineteenth century. Regrating (_see Forestalling, Middle Men_), first statute against; definition of; of fish and wool forbidden under Henry VIII; of butter and cheese forbidden under Edward VI; of coal forbidden; final definition of; in early Greece by trusts; especially obnoxious in early England. Religion, religious liberty guaranteed first under Cromwell, except as to papists; of Jesus Christ furthered. Religious tests; rights under American Constitution; as to instruction in public schools; as to taxation. Rents in staple towns must be reasonable. Reporters, newspaper, privilege of. Representative government, and the right to law; origin of; peculiar to Anglo-Saxon people; origin of, in England; in America; distrust of. Republican form of government. Reputation, right to. Restraint of trade (_see Forestalling, Trusts, Monopoly_), general, discussion chapter IX, doctrine of foreshadowed in Magna Charta; origin of doctrine; instance of; still our common law; expression first used in 1436; double damages for, recognized in statute of York; an element of "Trusts"; under the Sherman act; the Massachusetts statute. Retail (_see Wholesale_). Retailing by countrymen forbidden in towns by statute of Philip. Retainers, feudal, laws against. Revenue bills (_see also Money Bills_); must originate in lower house, A.D. 1407. Revenue officers may not meddle with the goods of travellers under pain of quadruple damages and imprisonment. Revisions, need of authorized. Rex _vs._ Crispe, monopoly case. Richard I imposes taxes to pay for crusade. Richard II, legislation of; all his laws declared to be permanent; their repeal declared to be high treason; the following year they were all repealed under Henry IV. Right to privacy (_see Privacy_). Rights, indefinite. Riotous assemblies, laws against. Riots (_see Injunctions_), law against under Henry V; suppression of by common-law courts in chancery; use of executive power to suppress, dates from 1414; use of chancery power permitted; law of 1495; punishment of by Star Chamber; act of Edward VI; counties liable for damages in 1285; European law of; Star Chamber's authority over; duty of by-standers. Rivers, pollution of, regulated as early as Henry VIII. Roads (_see Internal Improvements_). Roman law, distinct in two great principles from English law; individual liberty and law-making by the sovereign; an order to the subject; protest of barons against, A.D. 1383; forbidden to be cited in the courts. Rome, Church of (_see Church, Canon Law, Pope_), high-water mark of domination over England in 1213. Sack (_see Wine_). Sacraments, jurisdiction over in church alone. Sales in bulk prohibited. Sales, uniform law of; sales at less than cost forbidden. San Francisco earthquake, martial law in. Saxon (_see Anglo-Saxon_). Schools, to be no religious instruction in; appropriations may be divided. Scotchmen banished from England. Scots to depart realm within forty days. Scott, Laura, her report upon child labor. Scutage, the beginning of taxation; tax or money paid in lieu furnishing men-at-arms; replaced military service. Sea, navigation of, free to all English (_see Monopoly_). Seamen, imprisonment of, statute against under Cromwell. Search, right of, denied. Seduction, injunction issued against; of service; action for. Segregation of races; of sects. Senators, United States, direct election of. Separation, legal (_see Divorce_); may exist without divorce; of the powers (_see Three Functions of Government_). Serfs (_see Villeins_). Servants, regulation of in early England; laws affecting in early England, had to give notice, etc.; regulation of food and clothing. Sewerage (_see Drains_). Sex legislation, chapter concerning, chapter XVII, limitations in industry; relations formerly the province of the church. Sexual questions (_see Woman's Rights, Married Women, etc._), offences made secular crimes. Sherman act (_see Trusts_), precedent in statute of monopoly; enacted 1890; meaning of; still uncertain. Ships, principle restricting merchants to domestic ships very old. Shirts may not be "pinched". Shoes, long pikes to, forbidden. Signs (_see Trades_), public, may not be regulated under police power. Silver, payment in, may not be refused. "Single standard" and free divorce. Sins, the province of the church courts; distinction of from crime; legislation against common under James I. Slander, made criminal act at common law by Westminster I; and libel, legislation relating to; of women made a crime. Slavery, in England; distinction between, and labor; thirteenth amendment is self-executing. Smoke, laws against. Socage, free and common, abolished in United States. Socialism (_see Anarchism, Individualism_), allowable, definition of; those professing may not be naturalized; is it compatible with a republican form of government; helped by women's suffrage movement; municipal. Socialists, may be denied immigration. Society, possible systems of, described. Soldiers and sailors (_see Pensions_), to be treated free. Southwark, inhabitants of, declared to be thieves, men and women. Sovereign, the king under Norman ideas. Sovereignty, in the legislature; in Parliament. Spain, war veterans of, pensions, etc. Spanish war (_see Veterans of_) Special courts declared odious. Specific performance of labor contracts. Speech (_see Free Speech_) Spence quoted. Stage players (_see Actors_) Stamford, statute of. Standard Oil Trust; legality of. Standard wage (_see Wages_), principle gives place to modern principle of living wage. Standing armies, origin of; early objections to; forbidden in Bill of Rights; first established in England under Charles II. Staple (_see Forestalling_), definition of; abolished beyond the seas; generally abolished in 1340; last statute of 1353; extends to wool, leather, hides, and lead; statute of re-enacted in 1354. Star Chamber (_see Chancery, Riots_) abolished under Charles I. State aid, to railroads; to industries; present questions. State and Federal questions (_see Centralization_). State legislation, early increase of; the Constitution. State regulation of rates (_see Rates_). State, general powers of; may not engage in any internal improvements or industry; rights and powers of as to corporations; State socialism, whether compatible with the Constitution. Statute (_see Statutes, Common Law_), modern notion of; earliest social; why more democratic than the common law, (For special statutes, see their titles) Statute, law, modern importance of. Statute merchant 1285. Statutes, the subject of this book; are comparatively recent; making law a new discovery; declare the law; importance of in modern times; our study sociological; early nature of; early English, what are in force in the United States; began to be in English A.D. 1463; when should be unconstitutional; limitations upon individualism; proper classification of; form of; no authenticated revision usually; present functions; method of enacting; many laws of doubtful authority; lack of official publication; need of scientific draftsmen; reforms recommended; indexing and arrangement; final discussion of the system of statute-making; difficulty of interpreting; their general uncertainty; Statutes of the realm, the earliest sociological statute about 1100; Stevenson, G.T., quoted; Stock certificates, not negotiable; Stock Exchange, rules of, customary law. Street Railways (_see Municipal Socialism_) Streets, use of, by railways subject to vote of abutters. Strikes (_see also Conspiracy_), early law of; once unlawful in England; never unlawful in America; modern statutes concerning; European law of; illegal under a lawful wage; participation of employees in; notice of by employers required in modern statutes; lawful in France; use of Federal courts in, Stubbs, on early English legislation. Succession taxes, history of; common, now in all States; Federal tax repealed; may be graded. Succession (_see Interstate_). Suffrage (_see Women's Suffrage, Elections_), qualifications for; reforms in; disqualification of public servants; "grandfather clause"; property and qualification legislation. Sugar Trust cases. Sumptuary laws, in early England; statute _de cibariis_; courses at dinner regulated by law; diet and apparel; statute of A.D. 1463, prescribing apparel; women not to wear hose to the value of more than fourteen pence. Sunday laws, tendency to abolish; barbers may not shave on Sunday. Supplies, seizure by the king forbidden. Sweatshop, definition of; laws regulating; bakeries, cigar, clothing, artificial flowers, etc., trades principally regulated; laws concerning. Taff Vale case, legislation against. Taft, railway rate bill; court of commerce criticised; Federal incorporation; judicial reforms. Tail (_see Entail_). Tariff, constitutional objection to; increased cost to the people recognized by statute of 1309. Tariff laws, effect upon engrossing and monopoly; early history of. Taxation (_see Taxes_), origin of in England; must be by common consent; general taxation first, in Saladin tithe; must be for common benefit; for public purposes; first taxation on personal property in 1188; by common consent omitted from later charters; principle of consent restored in confirmation of charters; a usual method of invading property rights; never direct in England; history of; exemption from as to certain industries; possibly unconstitutional; extent of in the United States; laws limiting tax rate; must be proportional under State constitutions; burden of in United States; double taxation; graduated taxation; commissions to study; as a function of government; final discussion of; graded taxation; income inheritance tax; principles of taxation; bounties. Taxation without representation; the earliest constitutional principle. Taxes (_see Betterment Taxes_), early, in England paid by furnishing men-at-arms; later transformed into scutage, a money taxation; first voted by Parliament; heavy taxes upon personal property under Henry VII; amount of frequently limited by modern statute; income taxes; assessment and collection of in America; legislation concerning; inheritance taxes; on trades and callings; license common in South; betterment, reason for; double taxation; rate of limited by statute; limited by law in South and West. Telegraph, hours of labor in. Tenures (_see Land_). Thames, preservation of. Theatrical employment of children, etc.. Threefold necessity, the. Three functions of government, origin of; American co-operation of powers; does not exist in England; in the States. Tips (_see Commissions_), forbidden; laws against. Tobacco (_see Sumptuary Legislation_), forbidden to plant in England under Cromwell. Tolls (_see Rates_), must be reasonable under Magna Charta; under statute Westminster I. Towns, citizens of, first represented in Parliament of 1264 (_see Government_). Townsend, Meredith, quoted. "Trade Boards Act" of Edward VII. Trades (_see Restraint of, Freedom of_), withdrawing one's self from (_see Boycott, Conspiracy_), lawful in individuals but not in combinations; right to early established in England; made generally free under Elizabeth; freedom of extends to the Jews; in more than one commodity forbidden A.D. 1360; law repealed the following year; freedom of triumphantly established in fourteenth century; restrictions begin to disappear under Elizabeth; license for necessary in many States; Trade Disputes Act, the English, 1906 (_see Conspiracy_); trade guilds (_see Guilds_) recognized in modern German legislation; licenses for may be required. Trades, men forbidden to use more than one (_see Signs_); license taxes for; examination for (_see Taxation_). Trades-unions, once unlawful in England; never unlawful in America; early law of; punishment for joining; early combinations of forbidden; convictions for joining; European law of; Norwich tailors' case; condition not to join made unlawful. Trading corporations, the first. Trading stamps, use of, forbidden. Transfers of stock, laws regulating. Travel, right to. Treason. Trial by jury, origin of; by battle; by compurgation. Truant laws. Trust certificate, unlawful. Trust receipts, laws of. Trusts (_see Conspiracy, Monopoly_), chapter concerning, chapter IX; origin of common law making them unlawful; at common law; early English statutes relating to; laws against always connected with laws directed against combinations of labor; punishment of by removal of tariff laws; taxation on franchise of; American statutes against unnecessary except to apply common-law principles to interstate commerce; and labor combinations; earliest use of word; invention of; earliest State legislation; the Sherman act; Federal supervision; State laws against; exemption of laborers and agricultural products; as affected by corporation laws; early combinations in Athens; coal, milk, etc.; question of intent; modern legislation largely unnecessary; voting trusts; legislation against in 1890; review of modern legislation; definitions of the trust; State statutes; may not enforce contracts or collect debts; recent laws more intelligent; constitutional provisions against; volume of legislation; the problem analyzed; history and summary. Tyler, Watt, rising of. Tyndale's translation of the Bible under Henry VIII. Unconstitutional laws (_see Constitution_), tendency to enact; true reason for. "Unfair competition," modern legislation against; definition of. Unfair list, the right to publish, discussed. Uniform law, commissioners on. Uniform laws, already recommended; as to bills and notes; weights and measures. Uniformity of law, work of commissioners. Union labor (_see Trades-Unions_); no condition to be made concerning; discrimination against; special privileges of in legislation. United States Industrial Commission, report on trusts. United States senators, direct election of. Universities, State, exist in nearly all States. Vagabonds, early statutes against; and Idlers; punishment of rogues and sturdy beggars; severe statutes against under Elizabeth. Vessels (_see Ships_). Veterans, of the Spanish war, to be preferred in civil service in England under Cromwell; in the United States; preference legislation. Victuals, statute of (_see Assize of Bread_). Villeinage, finally abolished for money compensation; laws mentioned under Elizabeth. Villeins, in early England had no property; early condition of; made free when they seek refuge in towns; manumitted by Henry VIII. Vote, right of employees to, in modern statutes. Voters, qualifications of; property qualifications under Cromwell (_see Suffrage_). Wages, early regulation of; highest in early England; fixed by the statute of laborers; must be at customary rate in early England; standard fixed; fixed semi-annually in England; repeated demands to fix by law and continued punishment of extortion; rates of fixed in New York; litigation caused by such legislation; rate of again fixed in 1388; attempt to regulate by law again abandoned, 1427; maximum price again fixed in 1444; again fixed, 1495; most elaborate fixing, 1514; in New Zealand and Austria; in England; in New York, Indiana, etc.; in public work; fixed by town vote; minimum wage in Hawaii; Nebraska and Nevada; forbidden by Louisiana Constitution; claims for preferred in insolvency, etc.; wage legislation in modern times; in towns by vote; of public labor; New York amendment; fixed by modern statutes in England, New Zealand, etc.; Plymouth case; effect of minimum wage laws; time and manner of payment, (_see Minimum Wage_). Wales, joined to England; statute of. War amendments and their effects. Warehouse receipts negotiable. Warrants, general, may not be employed (_see Search, Right of_). Watch, duties of. Water (_see Municipal Socialism_), public control of in arid States. Weavers, statute for relief of. Weights and measures, early laws regulating; standard required by statute of York A.D. 1392; American legislation. Welshmen banished from England. Were, meaning of. Were gild, prototype of modern lynching laws. Wessex, early laws of. Westminster I, first statute of. Westminster III, statute of _quia emptores_. Wharves, charges regulated in early times. Wheat, price of, regulated, Athens. Whistles, laws against. Whitaker, Dr. F.E., on Athenian corn laws. Wholesale and retail selling recognized as lawful, but not forestalling. Wight, Isle of, to be repeopled with English people. Wilgus, Horace L., on Federal incorporation. William the conqueror, charter to the City of London. Wills, statute of. Winchester, statute of. Wine, or beer, use of never regulated by sumptuary legislation; sweet white wine not to be sold at retail; sweet wine (Spanish?) must be sold at the same price as the wine of the Rhine and Gascony. Witchcraft, first act against under Henry VIII; forbidden by statute of James I. Witenagemot (_see also Council_), included originally all freemen in England; main function of judicial legislation; little known of in early times; functions of, as a court. Witnesses, number of, limited in criminal cases. Wolstonecraft, Mary, her book discussed. Women, may not practice law; forbidden to read New Testament; might be hanged in early England when men could plead benefit of clergy; suffrage movement, origin of; progress; laws limiting labor of; may not stand; not sell liquor; nor ply street trades; constitutional right to labor; sale of liquor to forbidden; industrial employment of; legislation to protect in industrial matters; their health may be protected by statute; may not work in factories shortly after childbirth; effort to forbid married women from working in factories at all; statutes on employment of in industry; teachers to be paid the same as men (_see Married Women_). Women's suffrage (_see Women_), recent progress in; by property owners, etc.; results of discussed; tendency of movement to socialism; votes on matters of finance permitted in some States; constitutional amendments continually defeated; subsidence of agitation over; the right of property owners to vote in money elections. Women's rights, discussed in chapter XVII; in all respects citizens except for voting, holding office, and compulsory service on jury or in the army; may not serve liquor or engage in immoral occupations; may be subject to protective legislation even when over twenty-one; hours of labor may be regulated by law; in property matters same as men; with certain special privileges; political rights; to hold office; female juries; in educational matters; may practice law; may practice medicine; in jails, etc.; are not liable for husband's debts; female labor in England and United States. Wool, early duties on; regulation of trade in; numerous statutes referring to; may not be carried out of England; no clothing made out of England to be worn; trade in made free again; again made a felony to export. Woolsey does not summon Parliament for seven years. Wrecks, definition of by statute of Westminster I; the law of; to be restored to their owners on payment of salvage. Year Books begin in 1305. York, statute of. 
38103	----	TRIAL OF C. B. REYNOLDS FOR BLASPHEMY, AT Morristown, N. J., May 1887. DEFENCE BY Robert G. Ingersoll. Stenographically Reported by I. N. Baker, and Revised by the Author. 1888. PUBLISHER'S PREFACE. MR. C. B. REYNOLDS, the accused, is an accredited missionary of freethought and speech who, under the guarantees of the Constitution, went from town to town in New Jersey, lecturing and preaching to those--had invited him and to all who chose to come. His methods of invitation were the ordinary ones of circulars, newspaper notices, bill posters, and personal address. His meetings were attended by the best people of the place, and were orderly and quiet except as disturbed by Christian mobs, unrestrained by local officials. At one of these meetings, in Boonton, he was attacked with missiles of every kind, while speaking--his tent destroyed, and he compelled to seek safety in flight. An action for damages against the town resulted in a counter action for disturbing the peace. Through the cowardice and inaction of the authorities the issue was never joined. Not daunted by persecution he continued his labors, making Morristown his next field of operations. Here he circulated a pamphlet giving his views of theology, and appended a satirical cartoon of his Boonton experience. This cartoon was the gravamen of his offence. For this he was indicted on a charge of "Blasphemy," and brought before a Morristown jury. The religious farce ended in a fine of $25.00. C. P. Farrell. MR. INGERSOLL'S ARGUMENT Gentlemen of the Jury: I regard this as one of the most important cases that can be submitted to a jury. It is not a case that involves a little property, neither is it one that involves simply the liberty of one man. It involves the freedom of speech, the intellectual liberty of every citizen of New Jersey. The question to be tried by you is whether a man has the right to express his honest thought; and for that reason there can be no case of greater importance submitted to a jury. And it may be well enough for me, at the outset, to admit that there could be no case in which I could take a greater--a deeper interest For my part, I would not wish to live in a world where I could not express my honest opinions. Men who deny to others the right of speech are not fit to live with honest men. I deny the right of any man, of any number of men, of any church, of any State, to put a padlock on the lips--to make the tongue a convict. I passionately deny the right of the Herod of authority to kill the children of the brain. A man has a right to work with his hands, to plow the earth, to sow the seed, and that man has a right to reap the harvest. If we have not that right, then all are slaves except those who take these rights from their fellow-men. If you have the right to work with your hands and to gather the harvest for yourself and your children, have you not a right to cultivate your brain? Have you not the right to read, to observe, to investigate--and when you have so read and so investigated, have you not the right to reap that field? And what is it to reap that field? It is simply to express what you have ascertained--simply to give your thoughts to your fellow-men. If there is one subject in this world worthy of being discussed, worthy of being understood, it is the question of intellectual liberty. Without that, we are simply painted clay; without that, we are poor miserable serfs and slaves. If you have not the right to express your opinions, if the defendant has not this right, then no man ever walked beneath the blue of heaven that had the right to express his thought. If others claim the right, where did they get it? How did they happen to have it, and how did you happen to be deprived of it? Where did a church or a nation get that right? Are we not all children of the same Mother? Are we not all compelled to think, whether we wish to or not? Can you help thinking as you do? When you look out upon the woods, the fields,--when you look at the solemn splendors of the night--these things produce certain thoughts in your mind, and they produce them necessarily. No man can think as he desires No man controls the action of his brain, any more than he controls the action of his heart. The blood pursues its old accustomed ways in spite of you. The eyes see, if you open them, in spite of you. The ears hear, if they are unstopped, without asking your permission. And the brain thinks, in spite of you. Should you express that thought? Certainly you should, if others express theirs. You have exactly the same right. He who takes it from you is a robber. For thousands of years people have been trying to force other people to think their way. Did they succeed? No. Will they succeed? No. Why? Because brute force is not an argument. You can stand with the lash over a man, or you can stand by the prison door, or beneath the gallows, or by the stake, and say to this man: "Recant, or the lash descends, the prison door is locked upon you, the rope is put about your neck, or the torch is given to the fagot." And so the man recants. Is he convinced? Not at all. Have you produced a new argument? Not the slightest. And yet the ignorant bigots of this world have been trying for thousands of years to rule the minds of men by brute force. They have endeavored to improve the mind by torturing the flesh--to spread religion with the sword and torch. They have tried to convince their brothers by putting their feet in iron boots, by putting fathers, mothers, patriots, philosophers and philanthropists in dungeons. And what has been the result? Are we any nearer thinking alike to-day than we were then? No orthodox church ever had power that it did not endeavor to make people think its way by force and flame. And yet every church that ever was established commenced in the minority, and while it was in the minority advocated free speech--every one. John Calvin, the founder of the Presbyterian Church, while he lived in France, wrote a book on religious toleration in order to show that all men had an equal right to think; and yet that man afterwards, clothed in a little authority, forgot all his sentiments about religious liberty, and had poor Servetus burned at the stake, for differing with him on a question that neither of them knew anything about. In the minority, Calvin advocated toleration--in the majority, he practised murder. I want you to understand what has been done in the world to force men to think alike. It seems to me that if there is some infinite being who wants us to think alike, he would have made us alike. Why did he not do so? Why did he make your brain so that you could not by any possibility be a Methodist? Why did he make yours so that you could not be a Catholic? And why did he make the brain of another so that he is an unbeliever--why the brain of another so that he became a Mohammedan--if he wanted us all to believe alike? After all, may be Nature is good enough, and grand enough, and broad enough to give us the diversity born of liberty. May be, after all, it would not be best for us all to be just the same. What a stupid world, if everybody said yes to everything that everybody else might say. The most important thing in this world is liberty. More important than food or clothes--more important than gold or houses or lands--more important than art or science--more important than all religions, is the liberty of man. If civilization tends to do away with liberty, then I agree with Mr. Buckle that civilization is a curse. Gladly would I give up the splendors of the nineteenth century--gladly would I forget every invention that has leaped from the brain of man--gladly would I see all books ashes, all works of art destroyed, all statues broken, and all the triumphs of the world lost--gladly, joyously would I go back to the abodes and dens of savagery, if that is necessary to preserve the inestimable gem of human liberty. So would every man who has a heart and brain. How has the church in every age, when in authority, defended itself? Always by a statute against blasphemy, against argument, against free speech. And there never was such a statute that did not stain the book that it was in, and that did not certify to the savagery of the men who passed it. Never. By making a statute and by defining blasphemy, the Church sought to prevent discussion--sought to prevent argument--sought to prevent a man giving his honest opinion. Certainly a tenet, a dogma, a doctrine is safe when hedged about by a statute that prevents your speaking against it. In the silence of slavery it exists. It lives because lips are locked. It lives because men are slaves. If I understand myself, I advocate only the doctrines that in my judgment will make this world happier and better. If I know myself, I advocate only those things that will make a man a better citizen, a better father, a kinder husband--that will make a woman a better wife, a better mother--doctrines that will fill every home with sunshine and with joy. And if I believed that anything I should say to-day would have any other possible tendency, I would stop. I am a believer in liberty. That is my religion--to give to every other human being every right that I claim for myself, and I grant to every other human being, not the right--because it is his right--but instead of granting I declare that it is his right, to attack every doctrine that I maintain, to answer every argument that I may urge--in other words, he must have absolute freedom of speech. I am a believer in what I call "intellectual hospitality." A man comes to your door. If you are a gentleman and he appears to be a good man, you receive him with a smile. You ask after his health. You say: "Take a chair; are you thirsty, are you hungry, will you not break bread with me?" That is what a hospitable, good man does--he does not set the dog on him. Now how should we treat a new thought? I say that the brain should be hospitable and say to the new thought: "Come in; sit down; I want to cross-examine you; I want to find whether you are good or bad; if good, stay; if bad, I don't want to hurt you--probably you think you are all right,--but your room is better than your company, and I will take another idea in your place." Why not? Can any man have the egotism to say that he has found it all out? No. Every man who has thought, knows not only how little he knows, but how little every other human being knows, and how ignorant after all the world must be. There was a time in Europe when the Catholic church had power. And I want it distinctly understood with this jury, that while I am opposed to Catholicism I am not opposed to Catholics--while I am opposed to Presbyterianism I am not opposed to Presbyterians. I do not fight people,--I fight ideas, I fight principles, and I never go into personalities. As I said, I do not hate Presbyterians, but Presbyterianism--that is I am opposed to their doctrine. I do not hate a man that has the rheumatism--I hate the rheumatism when it has a man. So I attack certain principles because I think they are wrong, but I always want it understood that I have nothing against persons--nothing against victims. There was a time when the Catholic church was in power in the Old World. All at once there arose a man called Martin Luther, and what did the dear old Catholics think? "Oh," they said, "that man and all his followers are going to Hell." But they did not go. They were very good people. They may have been mistaken--I do not know. I think they were right in their opposition to Catholicism--but I have just as much objection to the religion they founded as I have to the Church they left. But they thought they were right, and they made very good citizens, and it turned out that their differing from the Mother Church did not hurt them. And then after awhile they began to divide, and there arose Baptists, and the other gentlemen, who believed in this law that is now in New Jersey, began cutting off their ears so that they could hear better; they began putting them in prison so that they would have a chance to think. But the Baptists turned out to be good folks--first rate--good husbands, good fathers, good citizens. And in a little while, in England, the people turned to be Episcopalians, on account of a little war that Henry the Eighth had with the Pope,--and I always sided with the Pope in that war--but it made no difference; and in a little while the Episcopalians turned out to be just about like other folks--no worse--not as I know of, any better. After awhile arose the Puritan, and the Episcopalian said, "We don't want anything of him--he is a bad man;" and they finally drove some of them away and they settled in New England, and there were among them Quakers, than whom there never were better people on the earth--industrious, frugal, gentle, kind and loving--and yet these Puritans began hanging them. They said: "They are corrupting our children; if this thing goes on, everybody will believe in being kind and gentle and good, and what will become of us?" They were honest about it. So they went to cutting off ears. But the Quakers were good people and none of the prophecies were fulfilled. In a little while there came some Unitarians and they said, "The world is going to ruin, sure;"--but the world went on as usual, and the Unitarians produced men like Channing--one of the tenderest spirits that ever lived--they produced men like Theodore Parker--one of the greatest brained and greatest hearted men produced upon this continent--a good man--and yet they thought he was a blasphemer--they even prayed for his death--on their bended knees they asked their God to take time to kill him. Well, they were mistaken. Honest, probably. After awhile came the Universalists, who said: "God is good. He will not damn anybody always, just for a little mistake he made here. This is a very short life; the path we travel is very dim, and a great many shadows fall in the way, and if a man happens to stub his toe, God will not burn him forever." And then all the rest of the sects cried out, "Why, if you do away with hell, everybody will murder just for pastime--everybody will go to stealing just to enjoy themselves." But they did not. The Universalists were good people--just as good as any others. Most of them much better. None of the prophecies were fulfilled, and yet the differences existed. And so we go on until we find people who do not believe the bible at all, and when they say they do not, they come within this statute. Now gentlemen, I am going to try to show you, first, that this statute under which Mr. Reynolds is being tried is unconstitutional--that it is not in harmony with the Constitution of New Jersey; and I am going to try to show you in addition to that, that it was passed hundreds of years ago, by men who believed it was right to burn heretics and tie Quakers at the end of a cart, men and even modest women--stripped naked--and lash them from town to town. They were the men who originally passed that statute, and I want to show you that it has slept all this time, and I am informed--I do not know how it is--that there never has been a prosecution in this state for blasphemy. Now gentlemen, what is blasphemy? Of course nobody knows what it is, unless he takes into consideration where he is. What is blasphemy in one country would be a religious exhortation in another. It is owing to where you are and who is in authority. And let me call your attention to the impudence and bigotry of the American christians. We send missionaries to other countries. What for? To tell them that their religion is false, that their Gods are myths and monsters, that their Saviours and apostles were imposters, and that our religion is true. You send a man from Morris-town--a Presbyterian, over to Turkey. He goes there, and he tells the Mohammedans--and he has it in a pamphlet and he distributes it--that the Koran is a lie, that Mohammet was not a prophet of God, that the angel Gabriel is not so large that it is four hundred leagues between his eyes--that it is all a mistake--that there never was an angel as large as that. Then what would the Turks do? Suppose the Turks had a law like this statute in New Jersey. They would put the Morristown missionary in jail, and he would send home word, and then what would the people of Morris-town say? Honestly--what do you think they would say? They would say, "Why look at those poor, heathen wretches. We sent a man over there armed with the truth, and yet they were so blinded by their idolatrous religion, so steeped in superstition, that they actually put that man in prison." Gentlemen, does not that show the need of more missionaries? I would say, yes. Now let us turn the tables. A gentleman comes from Turkey to Morristown. He has got a pamphlet. He says, "The Koran is the inspired book, Mohammed is the real prophet, your bible is false and your Saviour simply a myth." Thereupon the Morristown people put him in jail. Then what would the Turks say? They would say, "Morristown needs more missionaries," and I would agree with them. In other words, what we want is intellectual hospitality. Let the world talk. And see how foolish this trial is: I have no doubt but the prosecuting attorney agrees with me to-day, that whether this law is good or bad, this trial should not have taken place. And let me tell you why. Here comes a man into your town and circulates a pamphlet. Now if they had just kept still, very few would ever have heard of it. That would have been the end. The diameter of the echo would have been a few thousand feet. But in order to stop the discussion of that question, they indicted this man, and that question has been more discussed in this country since this indictment than all the discussions put together since New Jersey was first granted to Charles the Second's dearest brother James, the Duke of York. And what else? A trial here that is to be reported and published all over the United States, a trial that will give Mr. Reynolds a congregation of fifty millions of people. And yet this was done for the purpose of stopping a discussion of this subject. I want to show you that the thing is in itself almost idiotic--that it defeats itself, and that you cannot crush out these things by force. Not only so, but Mr. Reynolds has the right to be defended, and his counsel has the right to give his opinions on this subject. Suppose that we put Mr. Reynolds in jail. The argument has not been sent to jail. That is still going the rounds, free as the winds. Suppose you keep him at hard labor a year--all the time he is there hundreds and thousands of people will be reading some account, or some fragment, of this trial. There is the trouble. If you could only imprison a thought, then intellectual tyranny might succeed. If you could only take an argument and put a striped suit of clothes on it--if you could only take a good, splendid, shining fact and lock it up in some dungeon of ignorance, so that its light would never again enter the mind of man, then you might succeed in stopping human progress. Otherwise, no. Let us see about this particular statute. In the first place, the State has a Constitution. That Constitution is a rule, a limitation to the power of the legislature, and a certain breast-work for the protection of private rights, and the Constitution says to this sea of passions and prejudices: "Thus far and no farther." The Constitution says to each individual: "This shall panoply you; this is your complete coat of mail; this shall defend your rights." And it is usual in this country to make as a part of each Constitution several general declarations--called the Bill of Rights. So I find that in the old Constitution of New Jersey, which was adopted in the year of grace 1776, although the people at that time were not educated as they are now--the spirit of the Revolution at that time not having permeated all classes of society--a declaration in favor of religious freedom. The people were on the eve of a Revolution. This Constitution was adopted on the third day of July, 1776, one day before the immortal Declaration of Independence. Now what do we find in this--and we have got to go by this light, by this torch, when we examine the statute. I find in that Constitution, in its Eighteenth Section, this: "No person shall ever in this State be deprived of the inestimable privilege of worshipping God in a manner agreeable to the dictates of his own conscience; nor under any pretence whatever be compelled to attend any place of worship contrary to his own faith and judgment; nor shall he be obliged to pay tithes, taxes, or any other rates for the purpose of building or repairing any church or churches, contrary to what he believes to be true." That was a very great and splendid step. It was the divorce of Church and State. It no longer allowed the State to levy taxes for the support of a particular religion, and it said to every citizen of New Jersey: All that you give for that purpose must be voluntarily given, and the State will not compel you to pay for the maintenance of a Church in which you do not believe. So far so good. The next paragraph was not so good. "There shall be no establishment of any one religious sect in this State in preference to another, and no Protestant inhabitants of this State shall be denied the enjoyment of any civil right merely on account of his religious principles; but all persons professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably, shall be capable of being elected to any office of profit or trust, and shall fully and freely enjoy every privilege and immunity enjoyed by other citizens." What became of the Catholics under that clause, I do not know--whether they had any right to be elected to office or not under this Act. But in 1844, the State having grown civilized in the meantime, another Constitution was adopted. The word Protestant was then left out. There was to be no establishment of one religion over another. But Protestantism did not render a man capable of being elected to office any more than Catholicism, and nothing is said about any religious belief whatever. So far, so good. "No religious test shall be required as a qualification for any office of public trust. No person shall be denied the enjoyment of any civil right on account of his religious principles." That is a very broad and splendid provision. "No person shall be denied any civil right on account of his religious principles." That was copied from the Virginia Constitution, and that clause in the Virginia Constitution was written by Thomas Jefferson, and under that clause men were entitled to give their testimony in the courts of Virginia whether they believed in any religion or not, in any bible or not, or in any God or not. That same clause was afterwards adopted by the State of Illinois, also by many other States, and wherever that clause is, no citizen can be denied any civil right on account of his religious principles. It is a broad and generous clause. This statute under which this indictment is drawn, is not in accordance with the spirit of that splendid sentiment. Under that clause, no man can be deprived of any civil right on account of his religious principles, or on account of his belief. And yet, on account of this miserable, this antiquated, this barbarous and savage statute, the same man who cannot be denied any political or civil right, can be sent to the penitentiary as a common felon for simply expressing his honest thought. And before I get through I hope to convince you that this statute is unconstitutional. But we will go another step: "Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right." That is in the Constitution of nearly every State in the Union, and the intention of that is to cover slanderous words--to cover a case where a man under pretence of enjoying the freedom of speech falsely assails or accuses his neighbor. Of course he should be held responsible for that abuse. Then follows the great clause in the Constitution of 1844--more important than any other clause in that instrument--a clause that shines in that Constitution like a star at night.-- "No law shall be passed to restrain or abridge the liberty of speech or of the press." Can anything be plainer--anything more forcibly stated? "No law shall be passed to abridge the liberty of speech." Now while you are considering this statute, I want you to keep in mind this other statement: "No law shall be passed to restrain or abridge the liberty of speech or of the press." And right here there is another thing I want to call your attention to. There is a Constitution higher than any statute. There is a law higher than any Constitution. It is the law of the human conscience, and no man who is a man will defile and pollute his conscience at the bidding of any legislature. Above all things one should maintain his self-respect, and there is but one way to do that, and that is to live in accordance with your highest ideal. There is a law higher than men can make. The facts as they exist in this poor world--the absolute consequences of certain acts--they are above all. And this higher law is the breath of progress, the very outstretched wings of civilization, under which we enjoy the freedom we have. Keep that in your minds. There never was a legislature great enough--there never was a Constitution sacred enough, to compel a civilized man to stand between a black man and his liberty. There never was a Constitution great enough to make me stand between any human being and his right to express his honest thoughts. Such a Constitution is an insult to the human soul, and I would care no more for it than I would for the growl of a wild beast. But we are not driven to that necessity here. This Constitution is in accord with the highest and noblest aspirations of the heart--"No law shall be passed to restrain or abridge the liberty of speech." Now let us come to this old law--this law that was asleep for a hundred years before this Constitution was adopted--this law coiled like a snake beneath the foundations of the government--this law, cowardly, dastardly--this law passed by wretches who were afraid to discuss--this law passed by men who could not, and who knew they could not, defend their creed--and so they said: "Give us the sword of the State and we will cleave the heretic down." And this law was made to control the minority. When the Catholics were in power they visited that law upon their opponents. When the Episcopalians were in power, they tortured and burned the poor Catholic who had scoffed and who had denied the truth of their religion. Whoever was in power used that, and whoever was out of power cursed that--and yet, the moment he got in power he used it. The people became civilized--but that law was on the statute book. It simply remained. There it was, sound asleep--its lips drawn over its long and cruel teeth. Nobody savage enough to waken it. And it slept on, and New Jersey has flourished. Men have done well. You have had average health in this country. Nobody roused the statute until the defendant in this case went to Boonton, and there made a speech in which he gave his honest thought, and the people not having an argument handy, threw stones. Thereupon Mr. Reynolds, the defendant, published a pamphlet on Blasphemy and in it gave a photograph of the Boonton christians. That is his offence. Now let us read this infamous statute: "_If any person shall wilfully blaspheme the holy name of God by denying, cursing, or contumeliously reproaching his being_."-- I want to say right here--many a man has cursed the God of another man. The Catholics have cursed the God of the Protestant. The Presbyterians have cursed the God of the Catholics--charged them with idolatry--cursed their images, laughed at their ceremonies. And these compliments have been interchanged between all the religions of the world. But I say here to-day that no man, unless a raving maniac, ever cursed the God in whom he believed. No man, no human being, has ever lived who cursed his own idea of God. He always curses the idea that somebody else entertains. No human being ever yet cursed what he believed to be infinite wisdom and infinite goodness--and you know it. Every man on this jury knows that. He feels that that must be an absolute certainty. Then what have they cursed? Some God they did not believe in--that is all. And has a man that right? I say yes. He has a right to give his opinion of Jupiter, and there is nobody in Morristown who will deny him that right. But several thousand years ago it would have been very dangerous for him to have cursed Jupiter, and yet Jupiter is just as powerful now as he was then, but the Roman people are not powerful, and that is all there was to Jupiter--the Roman people. So there was a time when you could have cursed Zeus, the god of the Greeks, and like Socrates, they would have compelled you to drink hemlock. Yet now everybody can curse this god. Why? Is the god dead? No. He is just as alive as he ever was. Then what has happened? The Greeks have passed away. That is all. So in all of our Churches here. Whenever a Church is in the minority it clamors for free speech. When it gets in the majority, no. I do not believe the history of the world will show that any orthodox Church when in the majority ever had the courage to face the free lips of the world. It sends for a constable. And is it not wonderful that they should do this when they preach the gospel of universal forgiveness--when they say, "if a man strike you on one cheek turn to him the other also"--but if he laughs at your religion, put him in the penitentiary? Is that the doctrine? Is that the law? Now read this law. Do you know as I read this law I can almost hear John Calvin laugh in his grave. That would have been a delight to him. It is written exactly as he would have written it. There never was an inquisitor who would not have read that law with a malicious smile. The Christians who brought the fagots and ran with all their might to be at the burning, would have enjoyed that law. You know that when they used to burn people for having said something against religion, they used to cut their tongues out before they burned them. Why? For fear that if they did not, the poor burning victims might say something that would scandalize the Christian gentlemen who were building the fire. All these persons would have been delighted with this law. Let us read a little further: "_Or by cursing or contumeliously reproaching Jesus Christ_." Why, whoever did, since the poor man, or the poor God, was crucified? How did they come to crucify him? Because they did not believe in free speech in Jerusalem. How else? Because there was a law against blasphemy in Jerusalem--a law exactly like this. Just think of it. O, I tell you we have passed too many milestones on the shining road of human progress to turn back and wallow in that blood, in that mire. No. Some men have said that he was simply a man. Some believed that he was actually a God. Others believed that he was not only a man, but that he stood as the representative of infinite love and wisdom. No man ever said one word against that being for saying "Do unto others as ye would that others should do unto you." No man ever raised his voice against him because he said "Blessed are the merciful, for they shall obtain mercy." And are they the "merciful" who when some man endeavors to answer their argument, put him in the penitentiary? No. The trouble is, the priests--the trouble is, the ministers--the trouble is, the people whose business it was to tell the meaning of these things, quarreled with each other and they put meanings upon human expressions by malice, meanings that the words will not bear. And let me be just to them. I believe that nearly all that has been done in this world has been honestly done. I believe that the poor savage who kneels down and prays to a stuffed snake--prays that his little children may recover from the fever--is honest, and it seems to me that a good God would answer his prayer if he could, if it was in accordance with wisdom, because the poor savage was doing the best he could, and no one can do any better than that. So I believe that the Presbyterians who used to think that nearly everybody was going to hell, said exactly what they believed. They were honest about it, and I would not send one of them to jail--would never think of such a thing--even if he called the unbelievers of the world "wretches," "dogs," and "devils." What would I do? I would simply answer him--that is all; answer him kindly. I might laugh at him a little, but I would answer him in kindness. So these divisions of the human mind are natural. They are a necessity. Do you know that all the mechanics that ever lived--take the best ones--cannot make two clocks that will run exactly alike one hour, one minute? They cannot make two pendulums that will beat in exactly the same time, one beat. If you cannot do that, how are you going to make hundreds, thousands, billions of people, each with a different quality and quantity of brain, each clad in a robe of living, quivering flesh, and each driven by passion's storm over the wild sea of life--how are you going to make them all think alike? This is the impossible thing that Christian ignorance and bigotry and malice have been trying to do. This was the object of the Inquisition and of the foolish legislature that passed this statute. Let me read you another line from this ignorant statute:-- "_Or the Christian religion_." Well, what is the Christian religion? "If you scoff at the Christian religion--if you curse the Christian religion." Well what is it? Gentlemen, you hear Presbyterians every day attack the Catholic Church. Is that the Christian religion? The Catholic believes it is the Christian religion, and you have to admit that it is the oldest one, and then the Catholics turn round and scoff at the Protestants. Is that the Christian religion? If so, every Christian religion has been cursed by every other Christian religion. Is not that an absurd and foolish statute? I say that the Catholic has the right to attack the Presbyterian and tell him, "Your doctrine is all wrong." I think he has the right to say to him, "You are leading thousands to hell." If he believes it, he not only has the right to say it, but it is his duty to say it; and if the Presbyterian really believes the Catholics are all going to the devil, it is his duty to say so. Why not? I will never have any religion that I cannot defend--that is, that I do not believe I can defend. I may be mistaken, because no man is absolutely certain that he knows. We all understand that. Every one is liable to be mistaken. The horizon of each individual is very narrow, and in his poor sky the stars are few and very small. "_Or the word of God,--_" What is that? "_The canonical Scriptures contained in the books of the Old and New Testaments_." Now what has a man the right to say about that? Has he the right to show that the book of Revelation got into the canon by one vote, and one only? Has he the right to show that they passed in convention upon what books they would put in and what they would not? Has he the right to show that there were twenty-eight books called "The Books of the Hebrews?" Has he the right to show that? Has he the right to show that Martin Luther said he did not believe there was one solitary word of gospel in the Epistle to the Romans? Has he the right to show that some of these books were not written till nearly two hundred years afterwards? Has he the right to say it, if he believes it? I do not say whether this is true or not, but has a man the right to say it if he believes it? Now suppose I should read the bible all through right here in Morristown, and after I got through I should make up my mind that it is not a true book--what ought I to say? Ought I to clap my hand over my mouth and start for another State, and the minute I got over the line say, "It is not true, It is not true?" Or, ought I to have the right and privilege of saying right here in New Jersey, "My fellow citizens, I have read the book--I do not believe that it is the word of God?" Suppose I read it and think it is true, then I am bound to say so. If I should go to Turkey and read the Koran and make up my mind that it is false, you would all say that I was a miserable poltroon if I did not say so. By force you can make hypocrites--men who will agree with you from the teeth out, and in their hearts hate you. We want no more hypocrites. We have enough in every community. And how are you going to keep from having more? By having the air free,--by wiping from your statute books such miserable and infamous laws as this. "_The Holy Scriptures_." Are they holy? Must a man be honest? Has he the right to be sincere? There are thousands of things in the Scriptures that everybody believes. Everybody believes the Scriptures are right when they say, "Thou shalt not steal"--everybody. And when they say "Give good measure, heaped up and running over," everybody says, "Good!" So when they say "Love your neighbor," everybody applauds that. Suppose a man believes that, and practices it, does it make any difference whether he believes in the flood or not? Is that of any importance? Whether a man built an ark or not--does that make the slightest difference? A man might deny it and yet be a very good man. Another might believe it and be a very mean man. Could it now, by any possibility, make a man a good father, a good husband, a good citizen? Does it make any difference whether you believe it or not? Does it make any difference whether or not you believe that a man was going through town and his hair was a little short, like mine, and some little children laughed at him, and thereupon two bears from the woods came down and tore to pieces about forty of these children? Is it necessary to believe that? Suppose a man should say, "I guess that is a mistake. They did not copy that right. I guess the man that reported that was a little dull of hearing and did not get the story exactly right." Any harm in saying that? Is a man to be sent to the penitentiary for that? Can you imagine an infinitely good God sending a man to hell because he did not believe the bear story? So I say if you believe the bible, say so; if you do not believe it, say so. And here is the vital mistake, I might almost say, in Protestantism itself. The Protestants when they fought the Catholics said: "Read the bible for yourselves--stop taking it from your priests--read the sacred volume with your own eyes. It is a revelation from God to his children, and you are the children." And then they said: "If after you read it you do not believe it, and you say anything against it, we will put you in jail, and God will put you in hell." That is a fine position to get a man in. It is like a man who invited his neighbor to come and look at his pictures, saying: "They are the finest in the place, and I want your candid opinion. A man who looked at them the other day said they were daubs, and I kicked him down stairs--now I want your candid judgment." So the Protestant Church says to a man, "This bible is a message from your Father,--your Father in heaven. Read it. Judge for yourself. But if after you have read it you say it is not true, I will put you in the penitentiary for one year." The Catholic Church has a little more sense about that--at least more logic. It says: "This bible is not given to everybody. It is given to the world, to be sure, but it must be interpreted by the Church. God would not give a bible to the world unless he also appointed some one, some organization, to tell the world what it means." They said: "We do not want the world filled with interpretations, and all the interpreters fighting each other." And the Protestant has gone to the infinite absurdity of saying: "Judge for yourself, but if you judge wrong you will go to the penitentiary here and to hell hereafter." Now let us see further: "_Or by profane scoffing expose them to ridicule_." Think of such a law as that, passed under a Constitution that says, "No law shall abridge the liberty of speech." But you must not ridicule the Scriptures. Did anybody ever dream of passing a law to protect Shakespeare from being laughed at? Did anybody ever think of such a thing? Did anybody ever want any legislative enactment to keep people from holding Robert Burns in contempt? The songs of Burns will be sung as long as there is love in the human heart Do we need to protect him from ridicule by a statute? Does he need assistance from New Jersey? Is any statute needed to keep Euclid from being laughed at in this neighborhood? And is it possible that a work written by an infinite being has to be protected by a legislature? Is it possible that a book cannot be written by a God so that it will not excite the laughter of the human race? Why gentlemen, humor is one of the most valuable things in the human brain. It is the torch of the mind--it sheds light. Humor is the readiest test of truth--of the natural, of the sensible--and when you take from a man all sense of humor, there will only be enough left to make a bigot. Teach this man who has no humor--no sense of the absurd--the Presbyterian creed, fill his darkened brain with superstition and his heart with hatred--then frighten him with the threat of hell, and he will be ready to vote for that statute. Such men made that law. Let us read another clause:-- "_And every person so offending shall, on conviction, be fined not exceeding two hundred dollars, or imprisoned at hard labor not exceeding twelve months, or both:_" I want you to remember that this statute was passed in England hundreds of years ago--just in that language. The punishment, however, has been somewhat changed. In the good old days when the king sat on the throne--in the good old days when the altar was the right-bower of the throne--then, instead of saying: "fined two hundred dollars and imprisoned one year," it was: "All his goods shall be confiscated; his tongue shall be bored with a hot iron, and upon his forehead he shall be branded with the letter B; and for the second offence he shall suffer death by burning." Those were the good old days when people maintained the orthodox religion in all its purity and in all its ferocity. The first question for you, gentlemen, to decide in this case is: Is this statute constitutional? Is this statute in harmony with that part of the Constitution of 1844 which says: "The liberty of speech shall not be abridged?" That is for you to say. Is this law constitutional, or is it simply an old statute that fell asleep, that was forgotten, that people simply failed to repeal? I believe I can convince you, if you will think a moment, that our fathers never intended to establish a government like that. When they fought for what they believed to be religious liberty--when they fought for what they believed to be liberty of speech, they believed that all such statutes would be wiped from the statute books of all the States. Let me tell you another reason why I believe this. We have in this country naturalization laws. Persons may come here irrespective of their religion. They must simply swear allegiance to this country--they must forswear allegiance to every other potentate, prince and power--but they do not have to change their religion. A Hindoo may become a citizen of the United States, and the Constitution of the United States, like the Constitution of New Jersey, guarantees religious liberty. That Hindoo believes in a God--in a God that no Christian does believe in. He believes in a sacred book that every Christian looks upon as a collection of falsehoods. He believes, too, in a Saviour--in Buddha. Now I ask you,--when that man comes here and becomes a citizen--when the Constitution is about him, above him--has he the right to give his ideas about his religion? Has he the right to say in New Jersey: "There is no God except the Supreme Brahm--there is no Saviour except Buddha the Illuminated, Buddha the Blest?" I say that he has that right--and you have no right, because in addition to that he says, "You are mistaken; your God is not God; your bible is not true, and your religion is a mistake," to abridge his liberty of speech. He has the right to say it, and if he has the right to say it, I insist before this Court and before this jury, that he has the right to give his reasons for saying it; and in giving those reasons, in maintaining his side, he has the right, not simply to appeal to history, not simply to the masonry of logic, but he has the right to shoot the arrows of wit, and to use the smile of ridicule. Anything that can be laughed out of this world ought not to stay in it. So the Persian--the believer in Zoroaster, in the spirits of Good and Evil, and that the spirit of Evil will finally triumph forever--if that is his religion--has the right to state it, and the right to give his reasons for his belief. How infinitely preposterous for you, one of the States of this Union, to invite a Persian or a Hindoo to come to your shores. You do not ask him to renounce his God. You ask him to renounce the Shah. Then when he becomes a citizen, having the rights of every other citizen, he has the right to defend his religion and to denounce yours. There is another thing. What was the spirit of our government at that time? You must look at the leading men. Who were they? What were their opinions? Were most of them as guilty of blasphemy as is the defendant in this case? Thomas Jefferson--and there is in my judgment only one name on the page of American history greater than his--only one name for which I have a greater and a tenderer reverence--and that is Abraham Lincoln, because of all men who ever lived and had power, he was the most merciful. And that is the way to test a man. How does he use power? Does he want to crush his fellow citizens? Does he like to lock somebody up in the penitentiary because he has the power of the moment? Does he wish to use it as a despot, or as a philanthropist--like a devil, or like a man? Thomas Jefferson entertained about the same views entertained by the defendant in this case, and he was made President of the United States. He was the author of the Declaration of Independence, founder of the University of Virginia, writer of that clause in the Constitution of that State that made all the citizens equal before the law. And when I come to the very sentences here charged as blasphemy, I will show you that these were the common sentiments of thousands of very great, of very intellectual and admirable men. I have no time, and it may be this is not the place and the occasion, to call your attention to the infinite harm that has been done in almost every religious nation by statutes such as this. Where that statute is, liberty can not be; and if this statute is enforced by this jury and by this Court, and if it is afterwards carried out, and if it could be carried out in the States of this Union, there would be an end of all intellectual progress. We would go back to the dark ages. Every man's mind, upon these subjects at least, would become a stagnant pool, covered with the scum of prejudice and meanness. And wherever such laws have been enforced, have the people been friends? Here we are to-day in this blessed air--here amid these happy fields. Can we imagine, with these surroundings, that a man for having been found with a crucifix in his poor little home had been taken from his wife and children and burned--burned by Protestants? You cannot conceive of such a thing now. Neither can you conceive that there was a time when Catholics found some poor Protestant contradicting one of the dogmas of the Church, and took that poor honest wretch--while his wife wept--while his children clung to his hands--to the public square, drove a stake in the ground, put a chain or two about him, lighted the fagots, and let the wife whom he loved and his little children see the flames climb around his limbs--you cannot imagine that any such infamy was ever practiced. And yet I tell you that the same spirit made this detestable, infamous, devilish statute. You can hardly imagine that there was a time when the same kind of men that made this law said to another man: "You say this world is round?" "Yes, sir; I think it is, because I have seen its shadow on the moon." "You have?"--Now can you imagine a society outside of hyenas and boa constrictors that would take that man, put him in the penitentiary, in a dungeon, turn the key upon him, and let his name be blotted from the book of human life? Years afterward some explorer amid ruins finds a few bones. The same spirit that did that, made this statute--the same spirit that did that, went before the grand jury in this case--exactly. Give the men that had this man indicted the power, and I would not want to live in that particular part of the country. I would not willingly live with such men. I would go somewhere else, where the air is free, where I could speak my sentiments to my wife, to my children, and to my neighbors. Now this persecution differs only in degree from the infamies of the olden time. What does it mean? It means that the State of New Jersey has all the light it wants. And what does that mean? It means that the State of New Jersey is absolutely infallible--that it has got its growth, and does not propose to grow any more. New Jersey knows enough, and it will send teachers to the penitentiary. It is hardly possible that this State has accomplished all that it is ever going to accomplish. Religions are for a day. They are the clouds. Humanity is the eternal blue. Religions are the waves of the sea. These waves depend upon the force and direction of the wind--that is to say, of passion; but Humanity is the great sea. And so our religions change from day to day, and it is a blessed thing that they do. Why? Because we grow, and we are getting a little more civilized every day,--and any man that is not willing to let another man express his opinion, is not a civilized man, and you know it. Any man that does not give to everybody else the rights he claims for himself, is not an honest man. Here is a man who says, "I am going to join the Methodist Church." What right has he? Just the same right to join it that I have not to join it--no more, no less. But if you are a Methodist and I am not, it simply proves that you do not agree with me, and that I do not agree with you--that is all. Another man is a Catholic. He was born a Catholic, or is convinced that Catholicism is right. That is his business, and any man that would persecute him on that account, is a poor barbarian--a savage; any man that would abuse him on that account, is a barbarian--a savage. Then I take the next step. A man does not wish to belong to any church. How are you going to judge him? Judge him by the way he treats his wife, his children, his neighbors. Does he pay his debts? Does he tell the truth? Does he help the poor? Has he got a heart that melts when he hears grief's story? That is the way to judge him. I do not care what he thinks about the bears, or the flood, about bibles or gods. When some poor mother is found wandering in the street with a babe at her breast, does he quote Scripture, or hunt for his pocket-book? That is the way to judge. And suppose he does not believe in any bible whatever? If Christianity is true, that is his misfortune, and everybody should pity the poor wretch that is going down the hill. Why kick him? You will get your revenge on him through all eternity--is not that enough? So I say, let us judge each other by our actions, not by theories, not by what we happen to believe--because that depends very much on where we were born. If you had been born in Turkey, you probably would have been a Mohammedan. If I had been born among the Hindoos, I might have been a Buddhist--I can't tell. If I had been raised in Scotland, on oat meal, I might have been a Covenanter--nobody knows. If I had lived in Ireland, and seen my poor wife and children driven into the street, I think I might have been a Home Ruler--no doubt of it. You see it depends on where you were born--much depends on our surroundings. Of course, there are men born in Turkey who are not Mohammedans, and there are men born in this country who are not Christians--Methodists, Unitarians, or Catholics, plenty of them, who are unbelievers--plenty of them who deny the truth of the Scriptures--plenty of them who say: "I know not whether there be a God or not." Well, it is a thousand times better to say that honestly than to say dishonestly that you believe in God. If you want to know the opinion of your neighbor, you want his honest opinion. You do not want to be deceived. You do not want to talk with a hypocrite. You want to get straight at his honest mind--and then you are going to judge him, not by what he says but by what he does. It is very easy to sail along with the majority--easy to sail the way the boats are going--easy to float with the stream; but when you come to swim against the tide, with the men on the shore throwing rocks at you, you will get a good deal of exercise in this world. And do you know that we ought to feel under the greatest obligation to men who have fought the prevailing notions of their day? There is not a Presbyterian in Morristown that does not hold up for admiration the man that carried the flag of the Presbyterians when they were in the minority--not one. There is not a Methodist in this state who does not admire John and Charles Wesley and Whitefield, who carried the banner of that new and despised sect when it was in the minority. They glory in them because they braved public opinion, because they dared to oppose idiotic, barbarous and savage statutes like this. And there is not a Universalist that does not worship dear old Hosea Ballon--I love him myself--because he said to the Presbyterian minister: "You are going around trying to keep people out of hell, and I am going around trying to keep hell out of the people." Every Universalist admires him and loves him because when despised and railed at and spit upon, he stood firm, a patient witness for the eternal mercy of God. And there is not a solitary Protestant who does not honor Martin Luther--who does not honor the Covenanters in poor Scotland, and that poor girl who was tied out on the sand of the sea by Episcopalians, and kept there till the rising tide drowned her, and all she had to do to save her life was to say, "God save the king;" but she would not say it without the addition of the words, "If it be God's will." No one, who is not a miserable, contemptible wretch, can fail to stand in admiration before such courage, such self-denial--such heroism. No matter what the attitude of your body may be, your soul falls on its knees before such men and such women. Let us take another step. Where would we have been if authority had always triumphed? Where would we have been if such statutes had always been carried out? We have now a science called Astronomy. That science has done more to enlarge the horizon of human thought than all things else. We now live in an infinite universe. We know that the sun is a million times larger than our earth, and we know that there are other great luminaries millions of times larger than our sun. We know that there are planets so far away that light, traveling at the rate of one hundred and eighty-five thousand miles a second, requires fifteen thousand years to reach this grain of sand, this tear, we call the earth--and we now know that all the fields of space are sown thick with constellations. If that statute had been enforced, that Science would not now be the property of the human mind. That Science is contrary to the bible, and for asserting the truth you become a criminal. For what sum of money, for what amount of wealth, would the world have the science of Astronomy expunged from the brain of man? We learned the story of the stars in spite of that statute. The first men who said the world was round were scourged for scoffing at the Scriptures. And even Martin Luther, speaking of one of the greatest men that ever lived, said: "Does he think with his little lever to overturn the Universe of God?" Martin Luther insisted that such men ought to be trampled under foot. If that statute had been carried into effect, Galileo would have been impossible. Kepler, the discoverer of the three laws, would have died with the great secret locked in his brain, and mankind would have been left ignorant, superstitious, and besotted. And what else? If that statute had been carried out, the world would have been deprived of the philosophy of Spinoza; of the philosophy, of the literature, of the wit and wisdom, the justice and mercy of Voltaire, the greatest Frenchman that ever drew the breath of life--the man who by his mighty pen abolished torture in a nation, and helped to civilize a world. If that statute had been enforced, nearly all the books that enrich the libraries of the world could not have been written. If that statute had been enforced, Humboldt could not have delivered the lectures now known as "The Cosmos." If that statute had been enforced, Charles Darwin would not have been allowed to give to the world his discoveries that have been of more benefit to mankind than all the sermons ever uttered. In England they have placed his sacred dust in the great Abbey. If he had lived in New Jersey, and this statute could have been enforced, he would have lived one year at least in your penitentiary. Why? That man went so far as not simply to deny the truth of your bible, but absolutely to deny the existence of your God. Was he a good man? Yes, one of the noblest and greatest of men. Humboldt, the greatest German who ever lived, was of the same opinion. And so I might go on with the great men of to-day. Who are the men who are leading the race upward and shedding light in the intellectual world? They are the men declared by that statute to be criminals. Mr. Spencer could not publish his books in the State of New Jersey. He would be arrested, tried, and imprisoned; and yet that man has added to the intellectual wealth of the world. So with Huxley, so with Tyndal, so with Helmholz--so with the greatest thinkers and greatest writers of modern times. You may not agree with these men--and what does that prove? It simply proves that they do not agree with you--that is all. Who is to blame? I do not know. They may be wrong, and you may be right; but if they had the power, and put you in the penitentiary simply because you differed with them, they would be savages; and if you have the power and imprison men because they differ from you, why then, of course, you are savages. No; I believe in intellectual hospitality. I love men that have a little horizon to their minds--a little sky, a little scope. I hate anything that is narrow and pinched and withered and mean and crawling, and that is willing to live on dust. I believe in creating such an atmosphere that things will burst into blossom. I believe in good will, good health, good fellowship, good feeling--and if there is any God on the earth, or in heaven, let us hope that he will be generous and grand. Do you not see what the effect will be? I am not cursing you because you are a Methodist, and not damning you because you are a Catholic, or because you are an Infidel--a good man is more; than all of these. The grandest of all things is to be in the highest and noblest sense a man. Now let us see the frightful things that this man, the defendant in this case, has done. Let me read the charges against him as set out in this indictment. I shall insist that this statute does not cover any publication--that it covers simply speech--not in writing, not in book or pamphlet. Let us see: "This bible describes God as so loving that he drowned the whole world in his mad fury." Well, the great question about that is, is it true? Does the bible describe God as having drowned the whole world with the exception of eight people? Does it, or does it not? I do not know whether there is anybody in this county who has really read the bible, but I believe the story of the flood is there. It does say that God destroyed all flesh, and that he did so because he was angry. He says so himself, if the bible be true. The defendant has simply repeated what is in the bible. The bible says that God is loving, and says that he drowned the world, and that he was angry. Is it blasphemy to quote from the "Sacred Scriptures?" "_Because it was so much worse than he, knowing all things, ever supposed it could be._"-- Well, the bible does say that he repented having made man. Now is there any blasphemy in saying that the bible is true? That is the only question. It is a fact that God, according to the bible, did drown nearly everybody. If God knows all things, he must have known at the time he made them that he was going to drown them. Is it likely that a being of infinite wisdom would deliberately do what he knew he must undo? Is it blasphemy to ask that question? Have you a right to think about it at all? If you have, you have the right to tell somebody what you think--if not, you have no right to discuss it, no right to think about it. All you have to do is to read it and believe it--to open your mouth like a young robin, and swallow--worms or shingle nails--no matter which. The defendant further blasphemed and said that:-- "_An all-wise, unchangeable God, who got out of patience with a world which was just what his own stupid blundering had made it, knew no better way out of the muddle than to destroy it by drowning!_" Is that true? Was not the world exactly as God made it? Certainly. Did he not, if the bible is true, drown the people? He did. Did he know he would drown them when he made them? He did. Did he know they ought to be drowned when they were made? He did. Where, then, is the blasphemy in saying so? There is not a minister in this world who could explain it--who would be permitted to explain it--under this statute. And yet you would arrest this man and put him in the penitentiary. But after you lock him in the cell, there remains the question still. Is it possible that a good and wise God, knowing that he was going to drown them, made millions of people? What did he make them for? I do not know. I do not pretend to be wise enough to answer that question. Of course, you cannot answer the question. Is there anything blasphemous in that? Would it be blasphemy in me to say I do not believe that any God ever made men, women and children--mothers, with babes clasped to their breasts, and then sent a flood to fill the world with death? A rain lasting for forty days--the water rising hour by hour, and the poor wretched children of God climbing to the tops of their houses--then to the tops of the hills. The water still rising--no mercy. The people climbing higher and higher, looking to the mountains for salvation--the merciless rain still falling, the inexorable flood still rising. Children falling from the arms of mothers--no pity. The highest hills covered--infancy and old age mingling in death--the cries of women, the sobs and sighs lost in the roar of waves--the heavens still relentless. The mountains are covered--a shoreless sea rolls round the world, and on its billows are billions of corpses. This is the greatest crime that man has imagined, and this crime is called a deed of infinite mercy. Do you believe that? I do not believe one word of it, and I have the right to say to all the world that this is false. If there be a good God, the story is not true. If there be a wise God, the story is not true. Ought an honest man to be sent to the penitentiary for simply telling the truth? Suppose we had a statute that whoever scoffed at Science--whoever by profane language should bring the Rule of Three into contempt, or whoever should attack the proposition that two parallel lines will never include a space, should be sent to the penitentiary--what would you think of it? It would be just as wise and just as idiotic as this. And what else says the defendant? "_The bible-God says that his people made him jealous" "Provoked him to anger._" Is that true? It is. If it is true, is it blasphemous? Let us read another line-- "_And now he will raise the mischief with them; that his anger burns like hell_." That is true. The bible says of God--"My anger burns to the lowest hell." And that is all that the defendant says. Every word of it is in the bible. He simply does not believe it--and for that reason is a "blasphemer." I say to you now, gentlemen,--and I shall argue to the Court,--that there is not in what I have read a solitary blasphemous word--not a word that has not been said in hundreds of pulpits in the Christian world. Theodore Parker, a Unitarian, speaking of this bible-God, said: "Vishnu with a necklace of skulls, Vishnu with bracelets of living, hissing serpents, is a figure of Love and Mercy compared to the God of the Old Testament." That, we might call "blasphemy," but not what I have read. Let us read on:-- "_He would destroy them all were it not that he feared the wrath of the enemy_." That is in the bible--word for word. Then the defendant in astonishment says: "_The Almighty God afraid of his enemies!_" That is what the bible says. What does it mean? If the bible is true, God was afraid. "_Can the mind conceive of more horrid blasphemy?_" Is not that true? If God be infinitely good and wise and powerful, is it possible he is afraid of anything? If the defendant had said that God was afraid of his enemies, that might have been blasphemy--but this man says the bible says that, and you are asked to say that it is blasphemy. Now, up to this point there is no blasphemy, even if you were to enforce this infamous statute--this savage law. "_The Old Testament records for our instruction in morals the most foul and bestial instances of fornication, incest, and polygamy, perpetrated by God's own saints, and the New Testament indorses these lecherous wretches as examples for all good Christians to follow_." Now is it not a fact that the Old Testament does uphold polygamy? Abraham would have gotten into trouble in New Jersey--no doubt of that. Sarah could have obtained a divorce in this state,--no doubt of that. What is the use of telling a falsehood about it? Let us tell the truth about the patriarchs. Everybody knows that the same is true of Moses. We have all heard of Solomon--a gentleman with five or six hundred wives, and three or four hundred other ladies with whom he was acquainted. This is simply what the defendant says. Is there any blasphemy about that? It is only the truth. If Solomon were living in the United States to-day, we would put him in the penitentiary. You know that under the Edmunds' Mormon law he would be locked up. If you should present a petition signed by his eleven hundred wives, you could not get him out. So it was with David. There are some splendid things about David, of course. I admit that, and pay my tribute of respect to his courage--but he happened to have ten or twelve wives too many, so he shut them up, put them in a kind of penitentiary and kept them there till they died. That would not be considered good conduct even in Morristown. You know that. Is it any harm to speak of it? There are plenty of ministers here to set it right--thousands of them all over the country, every one with his chance to talk all day Sunday and nobody to say a word back. The pew cannot reply to the pulpit, you know; it has just to sit there and take it. If there is any harm in this, if it is not true, they ought to answer it. But it is here, and the only answer is an indictment. I say that Lot was a bad man. So I say of Abraham, and of Jacob. Did you ever know of a more despicable fraud practiced by one brother on another than Jacob practiced on Esau? My sympathies have always been with Esau. He seemed to be a manly man. Is it blasphemy to say that you do not like a hypocrite, a murderer, or a thief, because his name is in the bible? How do you know what such men are mentioned for? May be they are mentioned as examples, and you certainly ought not to be led away and induced to imagine that a man with seven hundred wives is a pattern of domestic propriety, one to be followed by yourself and your sons. I might go on and mention the names of hundreds of others who committed every conceivable crime, in the name of religion--who declared war, and on the field of battle killed men, women and babes, even children yet unborn, in the name of the most merciful God. The Bible is filled with the names and crimes of these sacred savages, these inspired beasts. Any man who says that a God of love commanded the commission of these crimes is, to say the least of it, mistaken. If there be a God, then it is blasphemous to charge him with the commission of crime. But let us read further from this indictment: "The aforesaid printed document contains other scandalous, infamous and blasphemous matters and things to the tenor and effect following, that is to say,"--Then comes this particularly blasphemous line: "_Now, reader, take time and calmly think it over_." Gentlemen, there are many things I have read that I should not have expressed in exactly the same language used by the defendant, and many things that I am going to read I might not have said at all, but the defendant had the right to say every word with which he is charged in this indictment. He had the right to give his honest thought, no matter whether any human being agreed with what he said or not, and no matter whether any other man approved of the manner in which he said these things. I defend his right to speak, whether I believe in what he spoke or not, or in the propriety of saying what he did. I should defend a man just as cheerfully who had spoken against my doctrine, as one who had spoken against the popular superstitions of my time. It would make no difference to me how unjust the attack was upon my belief--how maliciously ingenious; and no matter how sacred the conviction that was attacked, I would defend the freedom of speech. And why? Because no attack can be answered by force, no argument can be refuted by a blow, or by imprisonment, or by fine. You may imprison the man, but the argument is free; you may fell the man to the earth, but the statement stands. The defendant in this case has attacked certain beliefs, thought by the Christian world to be sacred. Yet, after all, nothing is sacred but the truth, and by truth I mean what a man sincerely and honestly believes. The defendant says: "_Take time to calmly think it over: Was a Jewish girl the mother of God, the mother of your God?_" The defendant probably asked this question supposing that it must be answered by all sensible people in the negative. If the Christian religion is true, then a Jewish girl was the mother of Almighty God. Personally, if the doctrine is true, I have no fault to find with the statement that a Jewish maiden was the mother of God.--Millions believe that this is true--I do not believe,--but who knows? If a God came from the throne of the universe, came to this world and became the child of a pure and loving woman, it would not lessen, in my eyes, the dignity or the greatness of that God. There is no more perfect picture on the earth, or within the imagination of man, than a mother holding in her thrilled and happy arms a child, the fruit of love. No matter how the statement is made, the fact remains the same. A Jewish girl became the mother of God. If the bible is true, that is true, and to repeat it, even according to your law, is not blasphemous, and to doubt it, or to express the doubt, or to deny it, is not contrary to your Constitution. To this defendant it seemed improbable that God was ever born of woman, was ever held in the lap of a mother; and because he cannot believe this, he is charged with blasphemy. Could you pour contempt on Shakespeare by saying that his mother was a woman,--by saying that he was once a poor crying little helpless child? Of course he was; and he afterwards became the greatest human being that ever touched the earth,--the only man whose intellectual wings have reached from sky to sky; and he was once a crying babe. What of it? Does that cast any scorn or contempt upon him? Does this take any of the music from "Midsummer Night's Dream"?--any of the passionate wealth from "Antony and Cleopatra," any philosophy from "Macbeth," any intellectual grandeur from "King Lear"? On the contrary, these great productions of the brain show the growth of the dimpled babe, give every mother a splendid dream and hope for her child, and cover every cradle with a sublime possibility. The defendant is also charged with having said that "_God cried and screamed._" Why not? If he was absolutely a child, he was like other children,--like yours, like mine. I have seen the time, when absent from home, that I would have given more to have heard my children cry, than to have heard the finest orchestra that ever made the air burst into flower. What if God did cry? It simply shows that his humanity was real and not assumed, that it was a tragedy, real, and not a poor pretense. And the defendant also says that if the orthodox religion be true, that the "_God of the Universe kicked, and flung about his little arms, and made aimless dashes into space with his little fists_." Is there anything in this that is blasphemous? One of the best pictures I ever saw of the Virgin and Child was painted by the Spaniard, Murillo. Christ appears to be a truly natural, chubby, happy babe. Such a picture takes nothing from the majesty, the beauty, or the glory of the incarnation. I think it is the best thing about the Catholic Church that it lifts up for adoration and admiration, a mother,--that it pays what it calls "Divine honors" to a woman. There is certainly goodness in that, and where a Church has so few practices that are good, I am willing to point this one out. It is the one redeeming feature about Catholicism that it teaches the worship of a woman. The defendant says more about the childhood of Christ. He goes so far as to say, that "_He was found staring foolishly at his own little toes._" And why not? The bible says, that "he increased in wisdom and stature." The defendant might have referred to something far more improbable. In the same verse in which St. Luke says that Jesus increased in wisdom and stature, will be found the assertion that he increased in favor with God and man. The defendant might have asked how it was that the love of God for God increased. But the defendant has simply stated that the child Jesus grew, as other children grow; that he acted like other children, and if he did, it is more than probable that he did stare at his own toes. I have laughed many a time to see little children astonished with the sight of their feet. They seem to wonder what on earth puts the little toes in motion. Certainly there is nothing blasphemous in supposing that the feet of Christ amused him, precisely as the feet of other children have amused them. There is nothing blasphemous about this; on the contrary, it is beautiful. If I believed in the existence of God, the creator of this world, the being who, with the hand of infinity, sowed the fields of space with stars, as a farmer sows his grain, I should like to think of him as a little dimpled babe, overflowing with joy, sitting upon the knees of a loving mother. The ministers, themselves, might take a lesson even from the man who is charged with blasphemy, and make an effort to bring an infinite God a little nearer to the human heart. The defendant also says, speaking of the infant Christ, "He was nursed at Mary's breast." Yes, and if the story be true, that is the tenderest fact in it. Nursed at the breast of woman. No painting, no statue, no words can make a deeper and a tenderer impression upon the heart of man than this: The Infinite God, a babe, nursed at the holy breast of woman. You see these things do not strike all people the same. To a man that has been raised on the Orthodox desert, these things are incomprehensible. He has been robbed of his humanity. He has no humor, nothing but the stupid and the solemn. His fancy sits with folded wings. Imagination, like the atmosphere of Spring, woes every seed of earth to seek the blue of heaven, and whispers of bud and flower and fruit. Imagination gathers from every field of thought and pours the wealth of many lives into the lap of one. To the contracted, to the cast-iron people who believe in heartless and inhuman creeds, the words of the defendant seem blasphemous, and to them the thought that God was a little child is monstrous. They cannot bear to hear it said that he nursed at the breast of a maiden, that he was wrapped in swaddling clothes, that he had the joys and sorrows of other babes. I hope, gentlemen, that not only you, but the attorneys for the prosecution, have read what is known as the "Apocryphal New Testament," books that were once considered inspired, once admitted to be genuine, and that once formed a part of our New Testament. I hope you have read the books of Joseph and Mary, of the Shepherd of Hermes, of the Infancy and of Mary, in which many of the things done by the youthful Christ are described--books that were once the delight of the Christian world; books that gave joy to children, because in them they read that Christ made little birds of clay, that would at his command stretch out their wings and fly with joy above his head. If the defendant in this case had said anything like that, here in the State of New Jersey, he would have been indicted; the Orthodox Ministers would have shouted "blasphemy," and yet, these little stories made the name of Christ dearer to children. The Church of to-day lacks sympathy; the theologians are without affection. After all, sympathy is genius. A man who really sympathizes with another understands him. A man who sympathizes with a religion instantly sees the good that is in it, and the man who sympathizes with the right, sees the evil that a creed contains. But the defendant, still speaking of the infant Christ, is charged with having said, "_God smiled when he was comfortable. He lay in a cradle and was rocked to sleep_." Yes, and there is no more beautiful picture than that Let some great religious genius paint a picture of this kind--of a babe smiling with content, rocked in the cradle by the mother who bends tenderly and proudly above him. There could be no more beautiful, no more touching, picture than this. What would I not give for a picture of Shakespeare as a babe,--a picture that was a likeness,--rocked by his mother? I would give more for this than for any painting that now enriches the walls of the world. The defendant also says, that "_God was sick when cutting his teeth_." And what of that? We are told that he was tempted in all points, as we are. That is to say, he was afflicted, he was hungry, he was thirsty, he suffered the pains and miseries common to man. Otherwise, he was not flesh, he was not human. "_He caught the measles, the mumps, the scarlet fever and the whooping cough_." Certainly he was liable to have these diseases, for he was, in fact, a child. Other children have them. Other children, loved as dearly by their mothers as Christ could have been by his, and yet they are taken from the little family by fever; taken, it may be, and buried in the snow, while the poor mother goes sadly home, wishing that she was lying by its side. All that can be said of every word in this address, about Christ and about his childhood, amounts to this; that he lived the life of a child; that he acted like other children. I have read you substantially what he has said, and this is considered blasphemous. He has said, that-- "_According to the Old Testament, the God of the Christian world commanded people to destroy each other._" If the bible is true, then the statement of the defendant is true. Is it calculated to bring God into contempt to deny that he upheld polygamy, that he ever commanded one of his generals to rip open with the sword of war, the woman with child? Is it blasphemy to deny that a God of infinite love gave such commandments? Is such a denial calculated to pour contempt and scorn upon the God of the Orthodox? Is it blasphemous to deny that God commanded his children to murder each other? Is it blasphemous to say that he was benevolent, merciful and just? It is impossible to say that the bible is true and that God is good. I do not believe that a God made this world, filled it with people and then drowned them. I do not believe that infinite wisdom ever made a mistake. If there be any God he was too good to commit such an infinite crime, too wise to make such a mistake. Is this blasphemy? Is it blasphemy to say that Solomon was not a virtuous man, or that David was an adulterer? Must we say when this ancient king had one of his best generals placed in the front of the battle--deserted him and had him murdered for the purpose of stealing his wife, that he was "a man after God's own heart"? Suppose the defendant in this case were guilty of something like that? Uriah was fighting for his country, fighting the battles of David, the king. David wanted to take from him his wife. He sent for Joab, his commander in chief, and said to him: "Make a feint to attack a town. Put Uriah at the front of the attacking force and when the people sally forth from the town to defend its gate, fall back so that this gallant, noble, patriotic man may be slain." This was done and the widow was stolen by the king. Is it blasphemy to tell the truth and to say exactly what David was? Let us be honest with each other; let us be honest with this defendant. For thousands of years men have taught that the ancient patriarchs were sacred, that they were far better than the men of modern times that what was in them a virtue, is in us a crime. Children are taught in Sunday-schools to admire and respect these criminals of the ancient days. The time has come to tell the truth about these men, to call things by their proper names, and above all, to stand by the right, by the truth, by mercy and by justice. If what the defendant has said is blasphemy under this statute then the question arises, is the statute in accordance with the Constitution? If this statute is constitutional, why has it been allowed to sleep for all these years? I take this position: Any law made for the preservation of a human right, made to guard a human being, cannot sleep long enough to die; but any law that deprives a human being of a natural right--if that law goes to sleep, it never wakes, it sleeps the sleep of death. I call the attention of the Court to that remarkable case in England where, only a few years ago, a man appealed to trial by battle. The law allowing trial by battle had been asleep in the statute book of England for more than two hundred years, and yet the Court held that, in spite of the fact that the law had been asleep--it being a law in favor of a defendant--he was entitled to trial by battle. And why? Because it was a statute at the time made in defence of a human right, and that statute could not sleep long enough or soundly enough to die. In consequence of this decision, the Parliament of England passed a special act, doing away forever with the trial by battle. When a statute attacks an individual right the State must never let it sleep. When it attacks the right of the public at large and is allowed to pass into a state of slumber, it cannot be raised for the purpose of punishing an individual. Now gentlemen, a few words more. I take an almost infinite interest in this trial, and before you decide, I am exceedingly anxious that you should understand with clearness the thoughts I have expressed upon this subject. I want you to know how the civilized feel, and the position now taken by the leaders of the world. A few years ago almost everything spoken against the grossest possible superstition was considered blasphemous. The altar hedged itself about with the sword; the Priest went in partnership with the King. In those days statutes were leveled against all human speech. Men were convicted of blasphemy because they believed in an actual personal God; because they insisted that God had body and parts. Men were convicted of blasphemy because they denied that God had form. They have been imprisoned for denying the doctrine of tran-substantiation, and they have been torn in pieces for defending that doctrine. There are but few dogmas now believed by any Christian church that have not at some time been denounced as blasphemous. When Henry the VIII. put himself at the head of the Episcopal church a creed was made, and in that creed there were five dogmas that must, of necessity, be believed. Anybody who denied any one, was to be punished--for the first offence, with fine, with imprisonment, or branding, and for the second offence, with death. Not one of these five dogmas is now a part of the creed of the Church of England. So I could go on for days and weeks and months, showing that hundreds and hundreds of religious dogmas, to deny which was death, have been either changed or abandoned for others nearly as absurd as the old ones were. It may be, however, sufficient to say, that where-ever the Church has had power it has been a crime for any man to speak his honest thought. No Church has ever been willing that any opponent should give a transcript of his mind. Every Church in power has appealed to brute force, to the sword, for the purpose of sustaining its creed. Not one has had the courage to occupy the open field: The Church has not been satisfied with calling infidels and unbelievers blasphemers. Each Church has accused nearly every other Church of being a blasphemer. Every pioneer has been branded as a criminal. The Catholics called Martin Luther a blasphemer, and Martin Luther called Copernicus a blasphemer. Pious ignorance always regards intelligence as a kind of blasphemy. Some of the greatest men of the world, some of the best, have been put to death for the crime of blasphemy, that is to say, for the crime of endeavoring to benefit their fellow men. As long as the Church has the power to close the lips of men, so long and no longer will superstition rule this world. Blasphemy is the word that the majority hisses into the ear of the few. After every argument of the Church has been answered, has been refuted, then the Church cries, "blasphemy!" Blasphemy is what an old mistake says of a newly discovered truth. Blasphemy is what a withered last year's leaf says of this year's bud. Blasphemy is the bulwark of religious prejudice. Blasphemy is the breastplate of the heartless. And let me say now, that the crime of blasphemy set out in this statute, is impossible. No man can blaspheme a book. No man can commit blasphemy telling his honest thought. No man can blaspheme God, or a Holy Ghost, or a Son of God. The Infinite cannot be blasphemed. In the olden time, in the days of savagery and superstition, when some poor man was struck by lightning, when a blackened mark was left on the breast of and mother, the poor savage supposed that son angered by something he had done, had taken revenge. What else did the savage suppose? He believed that this God had the same feelings, with to the loyalty of his subjects, that an earthly chief or an earthly king with regard to the loyalty or tread of members of his tribe, or citizens of his kingdom the savage said, when his country was visited by a calamity, when the flood swept the people away, or the storm scattered their poor houses in fragments: "We have allowed some freethinker to live; some one is in our town or village who has not brought his gift to the priest, his incense to the altar; some man of our tribe or of our country does not respect our God." Then, for the purpose of appeasing the supposed God, for the purpose of winning a smile from Heaven, for the purpose of securing a little sunlight for their fields and homes, they drag the accused man from his home, from his wife and children, and with all the ceremonies of pious brutality, shed his blood. They did it in self-defense; they believed that they were saving their own lives and the lives of their children; they did it to appease their God. Most people are now beyond that point. Now, when disease visits a community, the intelligent do not say the disease came because the people were wicked; when the cholera comes, it is not because of the Methodists, of the Catholics, of the Presbyterians, or of the infidels. When the wind destroys a town in the far West, it is not because somebody there had spoken his honest thoughts. We are beginning to see that the wind blows and destroys without the slightest reference to man, without the slightest care whether it destroys the good or the bad, the irreligious or the religious. When the lightning leaps from the clouds it is just as likely to strike a good man as a bad man, and when the great serpents of flame climb around the houses of men, they burn just as gladly and just as joyously, the home of virtue, as they do the den and lair of vice. Then the reason for all these laws has failed. The laws were made on account of a superstition. That superstition has faded from the minds of intelligent men and, as a consequence, the laws based on the superstition ought to fail. There is one splendid thing in nature, and that is that men and nations must reap the consequences of their acts--reap them in this world, if they live, and in another, if there be one. That man who leaves this world a bad man, a malicious man, will probably be the same man when he reaches another realm, and the man who leaves this shore good, charitable and honest, will be good, charitable and honest, no matter on what star he lives again. The world is growing sensible upon these subjects, and as we grow sensible, we grow charitable. Another reason has been given for these laws against blasphemy, the most absurd reason that can by any possibility be given. It is this. There should be laws against blasphemy, because the man who utters blasphemy endangers the public peace. Is it possible that Christians will break the peace? Is it possible that they will violate the law? Is it probable that Christians will congregate together and make a mob, simply because a man has given an opinion against their religion? What is their religion? They say, "If a man smites you on one cheek, turn the other also." They say, "We must love our neighbors as we love ourselves." Is it possible then, that you can make a mob out of Christians,--that these men, who love even their enemies, will attack others, and will destroy life, in the name of universal love? And yet, Christians themselves say that there ought to be laws against blasphemy, for fear that Christians, who are controlled by universal love, will become so outraged, when they hear an honest man express an honest thought, that they will leap upon him and tear him in pieces. What is blasphemy? I will give you a definition; I will give you my thought upon this subject. What is real blasphemy? To live on the unpaid labor of other men--that is blasphemy. To enslave your fellow-man, to put chains upon his body--that is blasphemy. To enslave the minds of men, to put manacles upon the brain, padlocks upon the lips--that is blasphemy. To deny what you believe to be true, to admit to be true what you believe to be a lie--that is blasphemy. To strike the weak and unprotected, in order that you may gain the applause of the ignorant and superstitious mob--that is blasphemy. To persecute the intelligent few, at the command of the ignorant many--that is blasphemy. To forge chains, to build dungeons, for your honest fellow-men--that is blasphemy. To pollute the souls of children with the dogma of eternal pain--that is blasphemy. To violate your conscience--that is blasphemy. The jury that gives an unjust verdict, and the Judge who pronounces an unjust sentence, are blasphemers. The man who bows to public opinion against his better judgment and against his honest conviction, is a blasphemer. Why should we fear our fellow-men? Why should not each human being have the right, so far as thought and its expression are concerned, of all the world? What harm can come from an honest interchange of thought? I have been giving you my real ideas. I have spoken freely, and yet the sun rose this morning, just the same as it always has. There is no particular change visible in the world, and I do not see but that we are all as happy to-day as though we had spent yesterday in making somebody else miserable. I denounced on yesterday the superstitions of the Christian world, and yet, last night I slept the sleep of peace. You will pardon me for saying again that I feel the greatest possible interest in the result of this trial, in the principle at stake. This is my only apology, my only excuse for taking your time. For years I have felt that the great battle for human liberty, the battle that has covered thousands of fields with heroic dead, had finally-been won. When I read the history of this world, of what has been endured, of what has been suffered, of the heroism and infinite courage of the intellectual and honest few, battling with the countless serfs and slaves of kings and priests, of tyranny, of hypocrisy, of ignorance and prejudice, of faith and fear, there was in my heart the hope that the great battle had been fought, and that the human race, in its march towards the dawn, had passed midnight, and that the "great balance weighed up morning." This hope, this feeling, gave me the greatest possible joy. When I thought of the many who had been burnt, of how often the sons of liberty had perished in ashes, of how many of the noblest and greatest had stood upon scaffolds, and of the countless hearts, the grandest that ever throbbed in human breasts, that had been broken by the tyranny of Church and State, of how many of the noble and loving had sighed themselves away in dungeons, the only consolation was that the last Bastile had fallen, that the dungeons of the Inquisition had been torn down and that the scaffolds of the world could no longer be wet with heroic blood. You know that sometimes, after a great battle has been fought, and one of the armies has been broken, and its fortifications carried, there are occasional stragglers beyond the great field, stragglers who know nothing of the fate of their army, know nothing of the victory, and for that reason, fight on. There are a few such stragglers in the State of New Jersey. They have never heard of the great victory. They do not know that in all civilized countries the hosts of superstition have been put to flight. They do not know that freethinkers, infidels, are to-day the leaders of the intellectual armies of the world. One of the last trials of this character, tried in Great Britain,--and that is the country that our ancestors fought in the sacred name of liberty,--one of the last trials in that country, a country ruled by a State church, ruled by a woman who was born a queen, ruled by dukes and nobles and lords, children of ancient robbers--was in the year 1843. George Jacob Holyoake, one of the best of the human race, was imprisoned on a charge of Atheism, charged with having written a pamphlet and having made a speech in which he had denied the existence of the British God. The Judge who tried him, who passed sentence upon him, went down to his grave with a stain upon his intellect and upon his honor. All the real intelligence of Great Britain rebelled against the outrage. There was a trial after that to which I will call your attention. Judge Coleridge, father of the present Chief Justice of England, presided at this trial. A poor man by the name of Thomas Pooley, a man who dug wells for a living, wrote on the gate of a priest that, if people would burn their bibles and scatter the ashes on the lands, the crops would be better, and that they would also save a good deal of money in tithes. He wrote several sentences of a kindred character. He was a curious man. He had an idea that the world was a living, breathing animal. He would not dig a well beyond a certain depth for fear he might inflict pain upon this animal, the earth. He was tried before Judge Coleridge, on that charge. An infinite God was about to be dethroned, because an honest well-digger had written his sentiments on the fence of a parson. He was indicted, tried, convicted and sentenced to prison. Afterwards, many intelligent people asked for his pardon, on the ground that he was in danger of becoming insane. The Judge refused to sign the petition. The pardon was refused. Long before his sentence expired, he became a raving maniac. He was removed to an asylum and there died. Some of the greatest men in England attacked that Judge, among these, Mr. Buckle, author of "The History of Civilization in England," one of the greatest books in this world. Mr. Buckle denounced Judge Coleridge. He brought him before the bar of English opinion, and there was not a man in England, whose opinion was worth anything, who did not agree with Mr. Buckle, and did not with him, declare the conviction of Thomas Pooley to be an infamous outrage. What were the reasons given? This, among others. The law was dead; it had been asleep for many years; it was a law passed during the ignorance of the Middle Ages, and aw that came out of the dungeons of religious persecution; a law that was appealed to by bigots and by hypocrites, to punish, to imprison an honest man. In many parts of this country people have entertained the idea that New England was still filled with the spirit of Puritanism, filled with the descendants of those who killed Quakers in the name of universal benevolence, and traded Quaker children in the Barbadoes for rum, for the purpose of establishing the fact that God is an infinite father. Yet, the last trial in Massachusetts on a charge like this, was when Abner Kneeland was indicted on a charge of atheism. He was tried for having written this sentence: "The Universalists believe in a God which I do not." He was convicted and imprisoned. Chief Justice Shaw upheld the decision, and upheld it because he was afraid of public opinion; upheld it, although he must have known that the statute under which Kneeland was indicted, was clearly and plainly in violation of the Constitution. No man can read the decision of Justice Shaw without being convinced that he was absolutely dominated, either by bigotry, or hypocrisy. One of the Judges of that court, a noble man, wrote a dissenting opinion, and in that dissenting opinion is the argument of a civilized, of an enlightened jurist No man can answer the dissenting opinion of Justice Morton. The case against Kneeland was tried more than fifty years ago, and there has been none since in the New England States; and this case, that we are now trying, is the first ever tried in New Jersey. The fact that it is the first, certifies to my interpretation of this statute, and it also certifies to the toleration and to the civilization of the people of this State. The statute is upon your books. You inherited it from your ignorant ancestors, and they inherited it from their savage ancestors. The people of New Jersey were heirs of the mistakes and of the atrocities of ancient England. It is too late to enforce a law like this. Why has it been allowed to slumber? Who obtained this indictment? Were they actuated by good and noble motives? Had they the public weal at heart, or were they simply endeavoring to be revenged upon this defendant? Were they willing to disgrace the State, in order that they might punish him? I have given you my definition of blasphemy, and now the question arises, what is worship? Who is a worshipper? What is prayer? What is real religion? Let me answer these questions. Good, honest, faithful work, is worship. The man who ploughs the fields and fells the forests; the man who works in mines, the man who battles with the winds and waves out on the wide sea, controlling the commerce of the world; these men are worshippers. The man who goes into the forest, leading his wife by the hand, who builds him a cabin, who makes a home in the wilderness, who helps to people and civilize and cultivate a continent, is a worshipper. Labor is the only prayer that Nature answers; it is the only prayer that deserves an answer,--good, honest, noble work. A woman whose husband has gone down to the gutter, gone down to degradation and filth; the woman who follows him and lifts him out of the mire and presses him to her noble heart, until he becomes a man once more, this woman is a worshipper. Her act is worship. The poor man and the poor woman who work night and day, in order that they may give education to their children, so that they may have a better life than their father and mother had; the parents who deny themselves the comforts of life, that they may lay up something to help their children to a higher place--they are worshippers; and the children who, after they reap the benefit of this worship, become ashamed of their parents, are blasphemers. The man who sits by the bed of his invalid wife,--a wife prematurely old and gray,--the husband who sits by her bed and holds her thin, wan hand in his as lovingly, and kisses it as rapturously, as passionately, as when it was dimpled,--that is worship; that man is a worshipper; that is real religion. Whoever increases the sum of human joy, is a worshipper. He who adds to the sum of human misery, is a blasphemer. Gentlemen, you can never make me believe--no statute can ever convince me, that there is any infinite being in this universe who hates an honest man. It is impossible to satisfy me that there is any God, or can be any God, who holds in abhorrence a soul that has the courage to express its thought. Neither can the whole world convince me that any man should be punished, either in this world or the next, for being candid with his fellow-men. If you send men to the penitentiary for speaking their thoughts, for endeavoring to enlighten their fellows, then the penitentiary will become a place of honor, and the victim will step from it--not stained, not disgraced, but clad in robes of glory. Let us take one more step. What is holy? What is sacred? I reply that human happiness is holy, human rights are holy. The body and soul of man--these are sacred. The liberty of man is of far more importance than any book--the rights of man, more sacred than any religion--than any Scriptures, whether inspired or not. What we want is the truth, and does any one suppose that all of the truth is confined in one book--that the mysteries of the whole world are explained by one volume? All that is--all that conveys information to man--all that has been produced by the past--all that now exists--should be considered by an intelligent man. All the known truths of this world--all the philosophy, all the poems, all the pictures, all the statues, all the entrancing music--the prattle of babes, the lullaby of mothers, the words of honest men, the trumpet calls to duty--all these make up the bible of the world--everything that is noble and true and free, you will find in this great book. If we wish to be true to ourselves,--if we wish to benefit our fellow men--if we wish to live honorable lives--we will give to every other human being every right that we claim for ourselves. There is another thing that should be remembered by you. You are the judges of the law, as well as the judges of the facts. In a case like this, you are the final judges as to what the law is; and if you acquit, no Court can reverse your verdict. To prevent the least misconception, let me state to you again what I claim: First. I claim that the Constitution of New Jersey declares that: "_The liberty of speech shall not be abridged._" Second. That this statute, under which this indictment is found, is unconstitutional, because it does abridge the liberty of speech; it does exactly that which the Constitution emphatically says shall not be done. Third. I claim, also, that under this law--even if it be constitutional--the words charged in this indictment do not amount to blasphemy, read even in the light, or rather in the darkness, of this statute. Do not, I pray you, forget this point. Do not forget that, no matter what the Court may tell you about the law--how good it is, or how bad it is--no matter what the Court may instruct you on that subject--do not forget one thing, and that is: that the words charged in the indictment are the only words that you can take into consideration in this case. Remember that, no matter what else may be in the pamphlet--no matter what pictures or cartoons there may be of the gentlemen in Boonton who mobbed this man in the name of universal liberty and love--do not forget that you have no right to take one word into account except the exact words set out in this indictment--that is to say, the words that I have read to you. Upon this point the Court will instruct you that you have nothing to do with any other line in that pamphlet; and I now claim, that should the Court instruct you that the statute is constitutional, still I insist that the words set put in this indictment do not amount to blasphemy. There is still another point. This statute says: "whoever shall _wilfully_ speak against." Now, in this case, you must find that the defendant "wilfully" did so and so--that is to say, that he made the statements attributed to him knowing that they were not true. If you believe that he was honest in what he said, then this statute does not touch him. Even under this statute, a man may give his honest opinion. Certainly, there is no law that charges a man with "wilfully" being honest--"wilfully" telling his real opinion--"wilfully" giving to his fellow-men his thought. Where a man is charged with larceny, the indictment must set out that he took the goods or the property with the intention to steal--with what the law calls the _animus furandi_. If he took the goods with the intention to steal, then he is a thief; but if he took the goods believing them to be his own, then he is guilty of no offence. So in this case, whatever was said by the defendant must have been "wilfully" said. And I claim that if you believe that what the man said was honestly said, you cannot find him guilty under this statute. One more point: This statute has been allowed to slumber so long, that no man had the right to awaken it For more than one hundred years it has slept; and so far as New Jersey is concerned, it has been sound asleep since 1664. For the first time it is dug out of its grave. The breath of life is sought to be breathed into it, to the end that some people may wreak their vengeance on an honest man. Is there any evidence--has there been any--to show that the defendant was not absolutely candid in the expression of his opinions? Is there one particle of evidence tending to show that he is not a perfectly honest and sincere man? Did the prosecution have the courage to attack his reputation? No. The State has simply proved to you that he circulated that pamphlet--that is all. It was claimed, among other things, that the defendant circulated this pamphlet among children. There was no such evidence--not the slightest. The only evidence about schools, or school-children was, that when the defendant talked with the bill poster,--whose business the defendant was interfering with,--he asked him something about the population of the town, and about the schools. But according to the evidence, and as a matter of fact, not a solitary pamphlet was ever given to any child, or to any youth. According to the testimony, the defendant went into two or three stores,--laid the pamphlets on a show case, or threw them upon a desk--put them upon a stand where papers were sold, and in one instance handed a pamphlet to a man. That is all. In my judgment, however, there would have been no harm in giving this pamphlet to every citizen of your place. Again I say, that a law that has been allowed to sleep for all these years--allowed to sleep by reason of the good sense and by reason of the tolerant spirit of the State of New Jersey, should not be allowed to leap into life because a few are intolerant, or because a few lacked good sense and judgment. This snake should not be warmed into vicious life by the blood of anger. Probably not a man on this jury agrees with me about the subject of religion. Probably not a member of this jury thinks that I am right in the opinions that I have entertained and have so often expressed. Most of you belong to some Church, and I presume that those who do, have the good of what they call Christianity at heart. There may be among you some Methodists. If so, they have read the history of their Church, and they know that when it was in the minority, it was persecuted, and they know that they can not read the history of that persecution without becoming indignant. They know that the early Methodists were denounced as heretics, as ranters, as ignorant pretenders. There are also on this jury Catholics, and they know that there is a tendency in many parts of this country to persecute a man now because he is a Catholic. They also know that their Church has persecuted in times past, whenever and wherever it had the power; and they know that Protestants, when in power, have always persecuted Catholics; and they know, in their hearts, that all persecution, whether in the name of law, or religion, is monstrous, savage, and fiendish. I presume that each one of you has the good of what you call Christianity at heart. If you have, I beg of you to acquit this man. If you believe Christianity to be a good, it never can do any Church any good to put a man in jail for the expression of opinion. Any church that imprisons a man because he has used an argument against its creed, will simply convince the world that it cannot answer the argument. Christianity will never reap any honor, will never reap any profit, from persecution. It is a poor, cowardly, dastardly way of answering arguments. No gentleman will do it--no civilized man ever did do it--no decent human being ever did, or ever will. I take it for granted that you have a certain regard, a certain affection, for the State in which you live--that you take a pride in the Commonwealth of New Jersey. If you do, I beg of you to keep the record of your State clean. Allow no verdict to be recorded against the freedom of speech. At present there is not to be found on the records of any inferior Court, or on those of the Supreme tribunal--any case in which a man has been punished for speaking his sentiments. The records have not been stained--have not been polluted,--with such a verdict. Keep such a verdict from the Reports of your State--from the Records of your Courts. No jury has yet, in the State of New Jersey, decided that the lips of honest men are not free--that there is a manacle upon the brain. For the sake of your State--for the sake of her reputation through the world--for your own sakes--for the sake of your children, and their children yet to be--say to the world that New Jersey shares in the spirit of this age,--that New Jersey is not a survival of the Dark Ages,--that New Jersey does not still regard the thumb-screw as an instrument of progress,--that New Jersey needs no dungeon to answer the arguments of a free man, and does not send to the penitentiary men who think, and men who speak. Say to the world, that where arguments are without foundation, New Jersey has confidence enough in the brains of her people to feel that such arguments can be refuted by reason. For the sake of your State, acquit this man. For the sake of something of far more value to this world than New Jersey--for the sake of something of more importance to mankind than this continent--for the sake of Human Liberty, for the sake of Free Speech, acquit this man. What light is to the eyes, what love is to the heart, Liberty is to the soul of man. Without it, there come suffocation, degradation and death. In the name of Liberty, I implore--and not only so, but I insist--that you shall find a verdict in favor of this defendant. Do not do the slightest thing to stay the march of human progress. Do not carry us back, even for a moment, to the darkness of that cruel night that good men hoped had passed away forever. Liberty is the condition of progress. Without Liberty, there remains only barbarism. Without Liberty, there can be no civilization. If another man has not the right to think, you have not even the right to think that he thinks wrong. If every man has not the right to think, the people of New Jersey had no right to make a statute, or to adopt a Constitution--no jury has the right to render a verdict, and no Court to pass its sentence. In other words, without liberty of thought, no human being has the right to form a judgment. It is impossible that there should be such a thing as real religion, without liberty. Without liberty there can be no such thing as conscience, no such word as justice. All human actions--all good, all bad--have for a foundation the idea of human liberty, and without Liberty there can be no vice, and there can be no virtue. Without Liberty there can be no worship, no blasphemy--no love, no hatred, no justice, no progress. Take the word Liberty from human speech and all the other words become poor, withered, meaningless sounds--but with that word realized--with that word understood, the world becomes a paradise. Understand me. I am not blaming the people. I am not blaming the prosecution, nor the prosecuting attorney. The officers of the Court are simply doing what they feel to be their duty. They did not find the indictment That was found by the grand jury. The grand jury did not find the indictment of its own motion. Certain people came before the grand jury and made their complaint--gave their testimony, and upon that testimony, under this statute, the indictment was found. While I do not blame these people--they not being on trial--I do ask you to stand on the side of right. I cannot conceive of much greater happiness than to discharge a public duty, than to be absolutely true to conscience, true to judgment, no matter what authority may say, no matter what public opinion may demand. A man who stands by the right against the world cannot help applauding himself, and saying: "I am an honest man." I want your verdict--a verdict born of manhood, of courage; and I want to send a dispatch to-day to a woman who is lying sick. I wish you to furnish the words of this dispatch--only two words--and these two words will fill an anxious heart with joy. They will fill a soul with light. It is a very short message--only two words--and I ask you to furnish them: "Not guilty." You are expected to do this, because I believe you will be true to your consciences, true to your best judgment true to the bests interests of the people of New Jersey, true to the great cause of Liberty. I sincerely hope that it will never be necessary again, under the flag of the United States--that flag for which has been shed the bravest and best blood of the world--under that flag maintained by Washington, by Jefferson, by Franklin and by Lincoln--under that flag in defence of which New Jersey poured out her best and bravest blood--I hope it will never be necessary again for a man to stand before a jury and plead for the Liberty of Speech. 
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30632	----	<DOC> [110 House Committee Prints] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:45834.wais] 110th Congress Committee 2nd Session COMMITTEE PRINT Print 110-C _______________________________________________________________________ COMPILATION of the HOMELAND SECURITY ACT OF 2002 (updated with amendments made through p.l. 110-417 (october 14, 2008)) __________ prepared for the use of the COMMITTEE ON HOMELAND SECURITY of the HOUSE OF REPRESENTATIVES SECOND SESSION __________ [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] __________ U.S. GOVERNMENT PRINTING OFFICE 45-834 WASHINGTON : 2008 COMMITTEE ON HOMELAND SECURITY BENNIE G. THOMPSON, Mississippi, Chairman LORETTA SANCHEZ, California, PETER T. KING, New York EDWARD J. MARKEY, Massachusetts LAMAR SMITH, Texas NORMAN D. DICKS, Washington CHRISTOPHER SHAYS, Connecticut JANE HARMAN, California MARK E. SOUDER, Indiana PETER A. DeFAZIO, Oregon TOM DAVIS, Virginia NITA M. LOWEY, New York DANIEL E. LUNGREN, California ELEANOR HOLMES NORTON, District of MIKE ROGERS, Alabama Columbia DAVID G. REICHERT, Washington ZOE LOFGREN, California MICHAEL T. McCAUL, Texas SHEILA JACKSON-LEE, Texas CHARLES W. DENT, Pennsylvania DONNA M. CHRISTENSEN, U.S. Virgin GINNY BROWN-WAITE, Florida Islands GUS M. BILIRAKIS, Florida BOB ETHERIDGE, North Carolina DAVID DAVIS, Tennessee JAMES R. LANGEVIN, Rhode Island PAUL C. BROUN, Georgia HENRY CUELLAR, Texas CANDICE S. MILLER, Michigan CHRISTOPHER P. CARNEY, Pennsylvania YVETTE D. CLARKE, New York AL GREEN, Texas ED PERLMUTTER, Colorado BILL PASCRELL, Jr., Colorado I. Lanier Avant, Staff Director Rosaline Cohen, Chief Counsel Michael Twinchek, Chief Clerk Robert O'Connor, Minority Staff Director (II) P R E F A C E This book is designed as a ready reference of the Homeland Security Act of 2002 (Public Law 107-296), as amended through Public Law 110-417. The information contained herein is current as of December 2008. This document was prepared by the Office of the Legislative Counsel. The Committee is appreciative of their hard work and dedication. The Committee would like to acknowledge the work of the Staff of the Office of the Legislative Counsel including: Craig Sterkx, Pam Griffiths, and Tom Meryweather. C O N T E N T S Homeland Security Act of 2002 - Amended through P.L. 110-417 Title I-Department of Homeland Security...................... 10 Title II-Information Analysis and Infrastructure Protection.. 14 Subtitle A-Information Analysis and Infrastructure Protection; Access to Information...................... 14 Subtitle B-Critical Infrastructure Information........... 40 Title III-Science and Technology In Support of Homeland Security................................................... 53 Title IV-Directorate of Border and Transportation Security... 74 Subtitle A-Under Secretary for Border and Transportation Security............................................... 74 Subtitle B-United States Customs Service................. 75 Subtitle C-Miscellaneous Provisions...................... 78 Subtitle D-Immigration Enforcement Functions............. 87 Subtitle E-Citizenship and Immigration Services.......... 90 Subtitle F-General Immigration Provisions................ 101 Title V-National Emergency Management........................ 108 Title VI-Treatment of Charitable Trusts for members of the Armed Forces of the United States and Other Governmental Organizations.............................................. 134 Title VII-Management......................................... 137 Title VIII-Coordination with Non-Federal Entities; Inspector General; United States Secret Servicel Coast Guard; General Provisions................................................. 145 Subtitle A-Coordination with Non-Federal Entitites....... 145 Subtitle B-Inspector General............................. 149 Subtitle C-United States Secret Service.................. 146 Subtitle D-Acquisitions.................................. 147 Subtitle E-Human Resources Management.................... 152 Subtitle F-Federal Emergency Procurement Flexibility..... 158 Subtitle G-Support Anti-terrorism by Fostering Effective Technologies Act of 2002............................... 161 Subtitle H-Miscellaneous Provisions...................... 165 Subtitle I-Information Sharing........................... 176 Subtitle J-Secure Handling of Ammonium Nitrate........... 181 Title IX-National Homeland Security Council.................. 188 Title X-Information Security................................. 189 Title XI-Department of Justice Divisions..................... 189 Subtitle A-Executive Office for Immigration Review....... 1189 Subtitle B-Transfer of the Bureau of Alcohol, Tobacco and Firearms to the Department of Justice.................. 190 Subtitle C-Explosives.................................... 192 Title XII-Airline War Risk Insurance Legislation............. 192 Title XIII-Federal Workforce Improvement..................... 193 Subtitle A-Chief Human Cap[ital Officers................. 193 Subtitle B-Reforms Relating to Federal Human Capital Management............................................. 194 Subtitle C-Reforms Relating to the Senior Executive Service................................................ 195 Subtitle D-Academic Training............................. 195 Title XIV-Arming Pilots Against Terrorism.................... 196 Title XV-Transition.......................................... 197 Subtitle A-Reorganization Plan........................... 197 Subtitle B-Transitional Provisions....................... 198 Title XVII-Conformaing and Technical Amendments.............. 201 Title XVIII-Emergency Communications......................... 203 Title XIX-Domestic Nuclear Detection Office.................. 216 Title XX-Homeland Security Grants............................ 220 Subtitle A-Grants to States and High-Risk Urban Areas.... 223 Subtitle B-Grants Administration......................... 235 HOMELAND SECURITY ACT OF 2002 [As Amended Through P.L. 110-417, Enacted October 14, 2008] AN ACT To establish the Department of Homeland Security, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) [6 U.S.C. 101] Short Title.--This Act may be cited as the ``Homeland Security Act of 2002''. (b) Table of Contents.--The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Construction; severability. Sec. 4. Effective date. TITLE I--DEPARTMENT OF HOMELAND SECURITY Sec. 101. Executive department; mission. Sec. 102. Secretary; functions. Sec. 103. Other officers. TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION Subtitle A--Information and Analysis and Infrastructure Protection; Access to Information Sec. 201. Information and Analysis and Infrastructure Protection. Sec. 202. Access to information. Sec. 203. Homeland Security Advisory System. Sec. 204. Homeland security information sharing. Sec. 205. Comprehensive information technology network architecture. Sec. 206. Coordination with information sharing environment. Sec. 207. Intelligence components. Sec. 208. Training for employees of intelligence components. Sec. 209. Intelligence training development for State and local government officials. Sec. 210. Information sharing incentives. Sec. 210A. Department of Homeland Security State, Local, and Regional Information Fusion Center Initiative. Sec. 210B. Homeland Security Information Sharing Fellows Program. Sec. 210C. Rural Policing Institute. Sec. 210D. Interagency Threat Assessment and Coordination Group. Sec. 210E. National Asset Database. Subtitle B--Critical Infrastructure Information Sec. 211. Short title. Sec. 212. Definitions. Sec. 213. Designation of critical infrastructure protection program. Sec. 214. Protection of voluntarily shared critical infrastructure information. Sec. 215. No private right of action. Subtitle C--Information Security Sec. 221. Procedures for sharing information. Sec. 222. Privacy Officer. Sec. 223. Enhancement of non-Federal cybersecurity. Sec. 224. Net guard. Sec. 225. Cyber Security Enhancement Act of 2002. Subtitle D--Office of Science and Technology Sec. 231. Establishment of office; Director. Sec. 232. Mission of office; duties. Sec. 233. Definition of law enforcement technology. Sec. 234. Abolishment of Office of Science and Technology of National Institute of Justice; transfer of functions. Sec. 235. National Law Enforcement and Corrections Technology Centers. Sec. 236. Coordination with other entities within Department of Justice. Sec. 237. Amendments relating to National Institute of Justice. TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY Sec. 301. Under Secretary for Science and Technology. Sec. 302. Responsibilities and authorities of the Under Secretary for Science and Technology. Sec. 303. Functions transferred. Sec. 304. Conduct of certain public health-related activities. Sec. 305. Federally funded research and development centers. Sec. 306. Miscellaneous provisions. Sec. 307. Homeland Security Advanced Research Projects Agency. Sec. 308. Conduct of research, development, demonstration, testing and evaluation. Sec. 309. Utilization of Department of Energy national laboratories and sites in support of homeland security activities. Sec. 310. Transfer of Plum Island Animal Disease Center, Department of Agriculture. Sec. 311. Homeland Security Science and Technology Advisory Committee. Sec. 312. Homeland Security Institute. Sec. 313. Technology clearinghouse to encourage and support innovative solutions to enhance homeland security. Sec. 314. Office for Interoperability and Compatibility. Sec. 315. Emergency communications interoperability research and development. Sec. 316. National Biosurveillance Integration Center. Sec. 317. Promoting antiterrorism through international cooperation program. TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY Subtitle A--Under Secretary for Border and Transportation Security Sec. 401. Under Secretary for Border and Transportation Security. Sec. 402. Responsibilities. Sec. 403. Functions transferred. Subtitle B--United States Customs Service Sec. 411. Establishment; Commissioner of Customs. Sec. 412. Retention of customs revenue functions by Secretary of the Treasury. Sec. 413. Preservation of customs funds. Sec. 414. Separate budget request for customs. Sec. 415. Definition. Sec. 416. GAO report to Congress. Sec. 417. Allocation of resources by the Secretary. Sec. 418. Reports to Congress. Sec. 419. Customs user fees. Subtitle C--Miscellaneous Provisions Sec. 421. Transfer of certain agricultural inspection functions of the Department of Agriculture. Sec. 422. Functions of Administrator of General Services. Sec. 423. Functions of Transportation Security Administration. Sec. 424. Preservation of Transportation Security Administration as a distinct entity. Sec. 425. Explosive detection systems. Sec. 426. Transportation security. Sec. 427. Coordination of information and information technology. Sec. 428. Visa issuance. Sec. 429. Information on visa denials required to be entered into electronic data system. Sec. 430. Office for Domestic Preparedness. Sec. 431. Office of Cargo Security Policy. Subtitle D--Immigration Enforcement Functions Sec. 441. Transfer of functions to Under Secretary for Border and Transportation Security. Sec. 442. Establishment of Bureau of Border Security. Sec. 443. Professional responsibility and quality review. Sec. 444. Employee discipline. Sec. 445. Report on improving enforcement functions. Sec. 446. Sense of Congress regarding construction of fencing near San Diego, California. Subtitle E--Citizenship and Immigration Services Sec. 451. Establishment of Bureau of Citizenship and Immigration Services. Sec. 452. Citizenship and Immigration Services Ombudsman. Sec. 453. Professional responsibility and quality review. Sec. 454. Employee discipline. Sec. 455. Effective date. Sec. 456. Transition. Sec. 457. Funding for citizenship and immigration services. Sec. 458. Backlog elimination. Sec. 459. Report on improving immigration services. Sec. 460. Report on responding to fluctuating needs. Sec. 461. Application of Internet-based technologies. Sec. 462. Children's affairs. Subtitle F--General Immigration Provisions Sec. 471. Abolishment of INS. Sec. 472. Voluntary separation incentive payments. Sec. 473. Authority to conduct a demonstration project relating to disciplinary action. Sec. 474. Sense of Congress. Sec. 475. Director of Shared Services. Sec. 476. Separation of funding. Sec. 477. Reports and implementation plans. Sec. 478. Immigration functions. TITLE V--NATIONAL EMERGENCY MANAGEMENT Sec. 501. Definitions. Sec. 502. Definition. Sec. 503. Federal Emergency Management Agency. Sec. 504. Authorities and responsibilities. Sec. 505. Functions transferred. Sec. 506. Preserving the Federal Emergency Management Agency. Sec. 507. Regional Offices. Sec. 508. National Advisory Council. Sec. 509. National Integration Center. Sec. 510. Credentialing and typing. Sec. 511. The National Infrastructure Simulation and Analysis Center. Sec. 512. Evacuation plans and exercises. Sec. 513. Disability Coordinator. Sec. 514. Department and Agency officials. Sec. 515. National Operations Center. Sec. 516. Chief Medical Officer. Sec. 517. Nuclear incident response. Sec. 518. Conduct of certain public health-related activities. Sec. 519. Use of national private sector networks in emergency response. Sec. 520. Use of commercially available technology, goods, and services. Sec. 521. Procurement of security countermeasures for strategic national stockpile. Sec. 522. Model standards and guidelines for critical infrastructure workers. Sec. 523. Guidance and recommendations. \1\ Sec. 524. Voluntary private sector preparedness accreditation and certification program. \1\ --------------------------------------------------------------------------- \1\ The placement of items relating to sections 523 and 524 in the table of contents in section 1(b) were added at the end of the items in title V in order to reflect the probable intent of Congress. See amendment made by section 901(e) of Public Law 110-53. --------------------------------------------------------------------------- TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS Sec. 601. Treatment of charitable trusts for members of the Armed Forces of the United States and other governmental organizations. TITLE VII--MANAGEMENT Sec. 701. Under Secretary for Management. Sec. 702. Chief Financial Officer. Sec. 703. Chief Information Officer. Sec. 704. Chief Human Capital Officer. Sec. 705. Establishment of Officer for Civil Rights and Civil Liberties. Sec. 706. Consolidation and co-location of offices. Sec. 707. Quadrennial Homeland Security Review. TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS Subtitle A--Coordination with Non-Federal Entities Sec. 801. Office for State and Local Government Coordination. Subtitle B--Inspector General Sec. 811. Authority of the Secretary. Sec. 812. Law enforcement powers of Inspector General agents. Subtitle C--United States Secret Service Sec. 821. Functions transferred. Subtitle D--Acquisitions Sec. 831. Research and development projects. Sec. 832. Personal services. Sec. 833. Special streamlined acquisition authority. Sec. 834. Unsolicited proposals. Sec. 835. Prohibition on contracts with corporate expatriates. Subtitle E--Human Resources Management Sec. 841. Establishment of Human Resources Management System. Sec. 842. Labor-management relations. Sec. 843. Use of counternarcotics enforcement activities in certain employee performance appraisals. Sec. 844. Homeland Security Rotation Program. Sec. 845. Homeland Security Education Program. Subtitle F--Federal Emergency Procurement Flexibility Sec. 851. Definition. Sec. 852. Procurements for defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack. Sec. 853. Increased simplified acquisition threshold for procurements in support of humanitarian or peacekeeping operations or contingency operations. Sec. 854. Increased micro-purchase threshold for certain procurements. Sec. 855. Application of certain commercial items authorities to certain procurements. Sec. 856. Use of streamlined procedures. Sec. 857. Review and report by Comptroller General. Sec. 858. Identification of new entrants into the Federal marketplace. Subtitle G--Support Anti-terrorism by Fostering Effective Technologies Act of 2002 Sec. 861. Short title. Sec. 862. Administration. Sec. 863. Litigation management. Sec. 864. Risk management. Sec. 865. Definitions. Subtitle H--Miscellaneous Provisions Sec. 871. Advisory committees. Sec. 872. Reorganization. Sec. 873. Use of appropriated funds. Sec. 874. Future Year Homeland Security Program. Sec. 875. Miscellaneous authorities. Sec. 876. Military activities. Sec. 877. Regulatory authority and preemption. Sec. 878. Counternarcotics officer. Sec. 879. Office of International Affairs. Sec. 880. Prohibition of the Terrorism Information and Prevention System. Sec. 881. Review of pay and benefit plans. Sec. 882. Office for National Capital Region Coordination. Sec. 883. Requirement to comply with laws protecting equal employment opportunity and providing whistleblower protections. Sec. 884. Federal Law Enforcement Training Center. Sec. 885. Joint Interagency Task Force. Sec. 886. Sense of Congress reaffirming the continued importance and applicability of the Posse Comitatus Act. Sec. 887. Coordination with the Department of Health and Human Services under the Public Health Service Act. Sec. 888. Preserving Coast Guard mission performance. Sec. 889. Homeland security funding analysis in President's budget. Sec. 890. Air Transportation Safety and System Stabilization Act. Subtitle I--Information Sharing Sec. 891. Short title; findings; and sense of Congress. Sec. 892. Facilitating homeland security information sharing procedures. Sec. 893. Report. Sec. 894. Authorization of appropriations. Sec. 895. Authority to share grand jury information. Sec. 896. Authority to share electronic, wire, and oral interception information. Sec. 897. Foreign intelligence information. Sec. 898. Information acquired from an electronic surveillance. Sec. 899. Information acquired from a physical search. Subtitle J--Secure Handling of Ammonium Nitrate Sec. 899A. Definitions. Sec. 899B. Regulation of the sale and transfer of ammonium nitrate. Sec. 899C. Inspection and auditing of records. Sec. 899D. Administrative provisions. Sec. 899E. Theft reporting requirement. Sec. 899F. Prohibitions and penalty. Sec. 899G. Protection from civil liability. Sec. 899H. Preemption of other laws. Sec. 899I. Deadlines for regulations. Sec. 899J. Authorization of appropriations. TITLE IX--NATIONAL HOMELAND SECURITY COUNCIL Sec. 901. National Homeland Security Council. Sec. 902. Function. Sec. 903. Membership. Sec. 904. Other functions and activities. Sec. 905. Staff composition. Sec. 906. Relation to the National Security Council. TITLE X--INFORMATION SECURITY Sec. 1001. Information security. Sec. 1002. Management of information technology. Sec. 1003. National Institute of Standards and Technology. Sec. 1004. Information Security and Privacy Advisory Board. Sec. 1005. Technical and conforming amendments. Sec. 1006. Construction. TITLE XI--DEPARTMENT OF JUSTICE DIVISIONS Subtitle A--Executive Office for Immigration Review Sec. 1101. Legal status of EOIR. Sec. 1102. Authorities of the Attorney General. Sec. 1103. Statutory construction. Subtitle B--Transfer of the Bureau of Alcohol, Tobacco and Firearms to the Department of Justice Sec. 1111. Bureau of Alcohol, Tobacco, Firearms, and Explosives. Sec. 1112. Technical and conforming amendments. Sec. 1113. Powers of agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Sec. 1114. Explosives training and research facility. Sec. 1115. Personnel management demonstration project. Subtitle C--Explosives Sec. 1121. Short title. Sec. 1122. Permits for purchasers of explosives. Sec. 1123. Persons prohibited from receiving or possessing explosive materials. Sec. 1124. Requirement to provide samples of explosive materials and ammonium nitrate. Sec. 1125. Destruction of property of institutions receiving Federal financial assistance. Sec. 1126. Relief from disabilities. Sec. 1127. Theft reporting requirement. Sec. 1128. Authorization of appropriations. TITLE XII--AIRLINE WAR RISK INSURANCE LEGISLATION Sec. 1201. Air carrier liability for third party claims arising out of acts of terrorism. Sec. 1202. Extension of insurance policies. Sec. 1203. Correction of reference. Sec. 1204. Report. TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT Subtitle A--Chief Human Capital Officers Sec. 1301. Short title. Sec. 1302. Agency Chief Human Capital Officers. Sec. 1303. Chief Human Capital Officers Council. Sec. 1304. Strategic human capital management. Sec. 1305. Effective date. Subtitle B--Reforms Relating to Federal Human Capital Management Sec. 1311. Inclusion of agency human capital strategic planning in performance plans and programs performance reports. Sec. 1312. Reform of the competitive service hiring process. Sec. 1313. Permanent extension, revision, and expansion of authorities for use of voluntary separation incentive pay and voluntary early retirement. Sec. 1314. Student volunteer transit subsidy. Subtitle C--Reforms Relating to the Senior Executive Service Sec. 1321. Repeal of recertification requirements of senior executives. Sec. 1322. Adjustment of limitation on total annual compensation. Subtitle D--Academic Training Sec. 1331. Academic training. Sec. 1332. Modifications to National Security Education Program. TITLE XIV--ARMING PILOTS AGAINST TERRORISM Sec. 1401. Short title. Sec. 1402. Federal Flight Deck Officer Program. Sec. 1403. Crew training. Sec. 1404. Commercial airline security study. Sec. 1405. Authority to arm flight deck crew with less-than-lethal weapons. Sec. 1406. Technical amendments. TITLE XV--TRANSITION Subtitle A--Reorganization Plan Sec. 1501. Definitions. Sec. 1502. Reorganization plan. Sec. 1503. Review of congressional committee structures. Subtitle B--Transitional Provisions Sec. 1511. Transitional authorities. Sec. 1512. Savings provisions. Sec. 1513. Terminations. Sec. 1514. National identification system not authorized. Sec. 1515. Continuity of Inspector General oversight. Sec. 1516. Incidental transfers. Sec. 1517. Reference. TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE TRANSPORTATION SECURITY Sec. 1601. Retention of security sensitive information authority at Department of Transportation. Sec. 1602. Increase in civil penalties. Sec. 1603. Allowing United States citizens and United States nationals as screeners. TITLE XVII--CONFORMING AND TECHNICAL AMENDMENTS Sec. 1701. Inspector General Act of 1978. Sec. 1702. Executive Schedule. Sec. 1703. United States Secret Service. Sec. 1704. Coast Guard. Sec. 1705. Strategic national stockpile and smallpox vaccine development. Sec. 1706. Transfer of certain security and law enforcement functions and authorities. Sec. 1707. Transportation security regulations. Sec. 1708. National Bio-Weapons Defense Analysis Center. Sec. 1709. Collaboration with the Secretary of Homeland Security. Sec. 1710. Railroad safety to include railroad security. Sec. 1711. Hazmat safety to include hazmat security. Sec. 1712. Office of Science and Technology Policy. Sec. 1713. National Oceanographic Partnership Program. Sec. 1714. Clarification of definition of manufacturer. Sec. 1715. Clarification of definition of vaccine-related injury or death. Sec. 1716. Clarification of definition of vaccine. Sec. 1717. Effective date. TITLE XVIII--EMERGENCY COMMUNICATIONS Sec. 1801. Office for Emergency Communications. Sec. 1802. National Emergency Communications Plan. Sec. 1803. Assessments and reports. Sec. 1804. Coordination of Federal emergency communications grant programs. Sec. 1805. Regional emergency communications coordination. Sec. 1806. Emergency Communications Preparedness Center. Sec. 1807. Urban and other high risk area communications capabilities. Sec. 1808. Definition. Sec. 1809. Interoperable Emergency Communications Grant Program. Sec. 1810. Border interoperability demonstration project. TITLE XIX--DOMESTIC NUCLEAR DETECTION OFFICE Sec. 1901. Domestic Nuclear Detection Office. Sec. 1902. Mission of Office. Sec. 1903. Hiring authority. Sec. 1904. Testing authority. Sec. 1905. Relationship to other Department entities and Federal agencies. Sec. 1906. Contracting and grant making authorities. Sec. 1907. Joint annual interagency review of global nuclear detection architecture. TITLE XX--HOMELAND SECURITY GRANTS Sec. 2001. Definitions. Subtitle A--Grants to States and High-Risk Urban Areas Sec. 2002. Homeland Security Grant Programs. Sec. 2003. Urban Area Security Initiative. Sec. 2004. State Homeland Security Grant Program. Sec. 2005. Grants to directly eligible tribes. Sec. 2006. Terrorism prevention. Sec. 2007. Prioritization. Sec. 2008. Use of funds. Subtitle B--Grants Administration Sec. 2021. Administration and coordination. Sec. 2022. Accountability. SEC. 2. [6 U.S.C. 101] DEFINITIONS. In this Act, the following definitions apply: (1) Each of the terms ``American homeland'' and ``homeland'' means the United States. (2) The term ``appropriate congressional committee'' means any committee of the House of Representatives or the Senate having legislative or oversight jurisdiction under the Rules of the House of Representatives or the Senate, respectively, over the matter concerned. (3) The term ``assets'' includes contracts, facilities, property, records, unobligated or unexpended balances of appropriations, and other funds or resources (other than personnel). (4) The term ``critical infrastructure'' has the meaning given that term in section 1016(e) of Public Law 107-56 (42 U.S.C. 5195c(e)). (5) The term ``Department'' means the Department of Homeland Security. (6) The term ``emergency response providers'' includes Federal, State, and local governmental and nongovernmental emergency public safety, fire, law enforcement, emergency response, emergency medical (including hospital emergency facilities), and related personnel, agencies, and authorities. (7) The term ``executive agency'' means an executive agency and a military department, as defined, respectively, in sections 105 and 102 of title 5, United States Code. (8) The term ``functions'' includes authorities, powers, rights, privileges, immunities, programs, projects, activities, duties, and responsibilities. (9) The term ``intelligence component of the Department'' means any element or entity of the Department that collects, gathers, processes, analyzes, produces, or disseminates intelligence information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, or national intelligence, as defined under section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5)), except-- (A) the United States Secret Service; and (B) the Coast Guard, when operating under the direct authority of the Secretary of Defense or Secretary of the Navy pursuant to section 3 of title 14, United States Code, except that nothing in this paragraph shall affect or diminish the authority and responsibilities of the Commandant of the Coast Guard to command or control the Coast Guard as an armed force or the authority of the Director of National Intelligence with respect to the Coast Guard as an element of the intelligence community (as defined under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)). (10) The term ``key resources'' means publicly or privately controlled resources essential to the minimal operations of the economy and government. (11) The term ``local government'' means-- (A) a county, municipality, city, town, township, local public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit corporation under State law), regional or interstate government entity, or agency or instrumentality of a local government; (B) an Indian tribe or authorized tribal organization, or in Alaska a Native village or Alaska Regional Native Corporation; and (C) a rural community, unincorporated town or village, or other public entity. (12) The term ``major disaster'' has the meaning given in section 102(2) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122). (13) The term ``personnel'' means officers and employees. (14) The term ``Secretary'' means the Secretary of Homeland Security. (15) The term ``State'' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possession of the United States. (16) The term ``terrorism'' means any activity that-- (A) involves an act that-- (i) is dangerous to human life or potentially destructive of critical infrastructure or key resources; and (ii) is a violation of the criminal laws of the United States or of any State or other subdivision of the United States; and (B) appears to be intended-- (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping. (17)(A) The term ``United States'', when used in a geographic sense, means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, any possession of the United States, and any waters within the jurisdiction of the United States. (B) Nothing in this paragraph or any other provision of this Act shall be construed to modify the definition of ``United States'' for the purposes of the Immigration and Nationality Act or any other immigration or nationality law. (18) The term ``voluntary preparedness standards'' means a common set of criteria for preparedness, disaster management, emergency management, and business continuity programs, such as the American National Standards Institute's National Fire Protection Association Standard on Disaster/Emergency Management and Business Continuity Programs (ANSI/NFPA 1600). SEC. 3. [6 U.S.C. 102] CONSTRUCTION; SEVERABILITY. Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof, or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances. SEC. 4. [6 U.S.C. 101 NOTE] EFFECTIVE DATE. This Act shall take effect 60 days after the date of enactment. TITLE I--DEPARTMENT OF HOMELAND SECURITY SEC. 101. [6 U.S.C. 111] EXECUTIVE DEPARTMENT; MISSION. (a) Establishment.--There is established a Department of Homeland Security, as an executive department of the United States within the meaning of title 5, United States Code. (b) Mission.-- (1) In general.--The primary mission of the Department is to-- (A) prevent terrorist attacks within the United States; (B) reduce the vulnerability of the United States to terrorism; (C) minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States; (D) carry out all functions of entities transferred to the Department, including by acting as a focal point regarding natural and manmade crises and emergency planning; (E) ensure that the functions of the agencies and subdivisions within the Department that are not related directly to securing the homeland are not diminished or neglected except by a specific explicit Act of Congress; (F) ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland; (G) ensure that the civil rights and civil liberties of persons are not diminished by efforts, activities, and programs aimed at securing the homeland; and (H) monitor connections between illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking. (2) Responsibility for investigating and prosecuting terrorism.--Except as specifically provided by law with respect to entities transferred to the Department under this Act, primary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over the acts in question. SEC. 102. [6 U.S.C. 112] SECRETARY; FUNCTIONS. (a) Secretary.-- (1) In general.--There is a Secretary of Homeland Security, appointed by the President, by and with the advice and consent of the Senate. (2) Head of department.--The Secretary is the head of the Department and shall have direction, authority, and control over it. (3) Functions vested in secretary.--All functions of all officers, employees, and organizational units of the Department are vested in the Secretary. (b) Functions.--The Secretary-- (1) except as otherwise provided by this Act, may delegate any of the Secretary's functions to any officer, employee, or organizational unit of the Department; (2) shall have the authority to make contracts, grants, and cooperative agreements, and to enter into agreements with other executive agencies, as may be necessary and proper to carry out the Secretary's responsibilities under this Act or otherwise provided by law; and (3) shall take reasonable steps to ensure that information systems and databases of the Department are compatible with each other and with appropriate databases of other Departments. (c) Coordination With Non-Federal Entities.--With respect to homeland security, the Secretary shall coordinate through the Office of State and Local Coordination (established under section 801) (including the provision of training and equipment) with State and local government personnel, agencies, and authorities, with the private sector, and with other entities, including by-- (1) coordinating with State and local government personnel, agencies, and authorities, and with the private sector, to ensure adequate planning, equipment, training, and exercise activities; (2) coordinating and, as appropriate, consolidating, the Federal Government's communications and systems of communications relating to homeland security with State and local government personnel, agencies, and authorities, the private sector, other entities, and the public; and (3) distributing or, as appropriate, coordinating the distribution of, warnings and information to State and local government personnel, agencies, and authorities and to the public. (d) Meetings of National Security Council.--The Secretary may, subject to the direction of the President, attend and participate in meetings of the National Security Council. (e) Issuance of Regulations.--The issuance of regulations by the Secretary shall be governed by the provisions of chapter 5 of title 5, United States Code, except as specifically provided in this Act, in laws granting regulatory authorities that are transferred by this Act, and in laws enacted after the date of enactment of this Act. (f) Special Assistant to the Secretary.--The Secretary shall appoint a Special Assistant to the Secretary who shall be responsible for-- (1) creating and fostering strategic communications with the private sector to enhance the primary mission of the Department to protect the American homeland; (2) advising the Secretary on the impact of the Department's policies, regulations, processes, and actions on the private sector; (3) interfacing with other relevant Federal agencies with homeland security missions to assess the impact of these agencies' actions on the private sector; (4) creating and managing private sector advisory councils composed of representatives of industries and associations designated by the Secretary to-- (A) advise the Secretary on private sector products, applications, and solutions as they relate to homeland security challenges; (B) advise the Secretary on homeland security policies, regulations, processes, and actions that affect the participating industries and associations; and (C) advise the Secretary on private sector preparedness issues, including effective methods for-- (i) promoting voluntary preparedness standards to the private sector; and (ii) assisting the private sector in adopting voluntary preparedness standards; (5) working with Federal laboratories, federally funded research and development centers, other federally funded organizations, academia, and the private sector to develop innovative approaches to address homeland security challenges to produce and deploy the best available technologies for homeland security missions; (6) promoting existing public-private partnerships and developing new public-private partnerships to provide for collaboration and mutual support to address homeland security challenges; (7) assisting in the development and promotion of private sector best practices to secure critical infrastructure; (8) providing information to the private sector regarding voluntary preparedness standards and the business justification for preparedness and promoting to the private sector the adoption of voluntary preparedness standards; (9) coordinating industry efforts, with respect to functions of the Department of Homeland Security, to identify private sector resources and capabilities that could be effective in supplementing Federal, State, and local government agency efforts to prevent or respond to a terrorist attack; (10) coordinating with the Directorate of Border and Transportation Security and the Assistant Secretary for Trade Development of the Department of Commerce on issues related to the travel and tourism industries; and (11) consulting with the Office of State and Local Government Coordination and Preparedness on all matters of concern to the private sector, including the tourism industry. (g) Standards Policy.--All standards activities of the Department shall be conducted in accordance with section 12(d) of the National Technology Transfer Advancement Act of 1995 (15 U.S.C. 272 note) and Office of Management and Budget Circular A-119. SEC. 103. [6 U.S.C. 113] OTHER OFFICERS. (a) Deputy Secretary; Under Secretaries.--There are the following officers, appointed by the President, by and with the advice and consent of the Senate: (1) A Deputy Secretary of Homeland Security, who shall be the Secretary's first assistant for purposes of subchapter III of chapter 33 of title 5, United States Code. (2) An Under Secretary for Science and Technology. (3) An Under Secretary for Border and Transportation Security. (4) An Administrator of the Federal Emergency Management Agency. (5) A Director of the Bureau of Citizenship and Immigration Services. (6) An Under Secretary for Management. (7) A Director of the Office of Counternarcotics Enforcement. (8) An Under Secretary responsible for overseeing critical infrastructure protection, cybersecurity, and other related programs of the Department. (9) Not more than 12 Assistant Secretaries. (10) A General Counsel, who shall be the chief legal officer of the Department. (b) Inspector General.--There shall be in the Department an Office of Inspector General and an Inspector General at the head of such office, as provided in the Inspector General Act of 1978 (5 U.S.C. App.). (c) Commandant of the Coast Guard.--To assist the Secretary in the performance of the Secretary's functions, there is a Commandant of the Coast Guard, who shall be appointed as provided in section 44 of title 14, United States Code, and who shall report directly to the Secretary. In addition to such duties as may be provided in this Act and as assigned to the Commandant by the Secretary, the duties of the Commandant shall include those required by section 2 of title 14, United States Code. (d) Other Officers.--To assist the Secretary in the performance of the Secretary's functions, there are the following officers, appointed by the President: (1) A Director of the Secret Service. (2) A Chief Information Officer. (3) An Officer for Civil Rights and Civil Liberties. (4) A Director for Domestic Nuclear Detection. (f) Performance of Specific Functions.--Subject to the provisions of this Act, every officer of the Department shall perform the functions specified by law for the official's office or prescribed by the Secretary. (e) Chief Financial Officer.--There shall be in the Department a Chief Financial Officer, as provided in chapter 9 of title 31, United States Code. TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION Subtitle A--Information and Analysis and Infrastructure Protection; Access to Information SEC. 201. [6 U.S.C. 121] INFORMATION AND ANALYSIS AND INFRASTRUCTURE PROTECTION. (a) Intelligence and Analysis and Infrastructure Protection.--There shall be in the Department an Office of Intelligence and Analysis and an Office of Infrastructure Protection. (b) Under Secretary for Intelligence and Analysis and Assistant Secretary for Infrastructure Protection.-- (1) Office of intelligence and analysis.--The Office of Intelligence and Analysis shall be headed by an Under Secretary for Intelligence and Analysis, who shall be appointed by the President, by and with the advice and consent of the Senate. (2) Chief intelligence officer.--The Under Secretary for Intelligence and Analysis shall serve as the Chief Intelligence Officer of the Department. (3) Office of infrastructure protection.--The Office of Infrastructure Protection shall be headed by an Assistant Secretary for Infrastructure Protection, who shall be appointed by the President. (c) Discharge of Responsibilities.--The Secretary shall ensure that the responsibilities of the Department relating to information analysis and infrastructure protection, including those described in subsection (d), are carried out through the Under Secretary for Intelligence and Analysis or the Assistant Secretary for Infrastructure Protection, as appropriate. (d) Responsibilities of Secretary Relating To Intelligence and Analysis and Infrastructure Protection.--The responsibilities of the Secretary relating to intelligence and analysis and infrastructure protection shall be as follows: (1) To access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government, State and local government agencies (including law enforcement agencies), and private sector entities, and to integrate such information, in support of the mission responsibilities of the Department and the functions of the National Counterterrorism Center established under section 119 of the National Security Act of 1947 (50 U.S.C. 404o), in order to-- (A) identify and assess the nature and scope of terrorist threats to the homeland; (B) detect and identify threats of terrorism against the United States; and (C) understand such threats in light of actual and potential vulnerabilities of the homeland. (2) To carry out comprehensive assessments of the vulnerabilities of the key resources and critical infrastructure of the United States, including the performance of risk assessments to determine the risks posed by particular types of terrorist attacks within the United States (including an assessment of the probability of success of such attacks and the feasibility and potential efficacy of various countermeasures to such attacks). (3) To integrate relevant information, analyses, and vulnerability assessments (whether such information, analyses, or assessments are provided or produced by the Department or others) in order to identify priorities for protective and support measures by the Department, other agencies of the Federal Government, State and local government agencies and authorities, the private sector, and other entities. (4) To ensure, pursuant to section 202, the timely and efficient access by the Department to all information necessary to discharge the responsibilities under this section, including obtaining such information from other agencies of the Federal Government. (5) To develop a comprehensive national plan for securing the key resources and critical infrastructure of the United States, including power production, generation, and distribution systems, information technology and telecommunications systems (including satellites), electronic financial and property record storage and transmission systems, emergency preparedness communications systems, and the physical and technological assets that support such systems. (6) To recommend measures necessary to protect the key resources and critical infrastructure of the United States in coordination with other agencies of the Federal Government and in cooperation with State and local government agencies and authorities, the private sector, and other entities. (7) To review, analyze, and make recommendations for improvements to the policies and procedures governing the sharing of information within the scope of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), including homeland security information, terrorism information, and weapons of mass destruction information, and any policies, guidelines, procedures, instructions, or standards established under that section. (8) To disseminate, as appropriate, information analyzed by the Department within the Department, to other agencies of the Federal Government with responsibilities relating to homeland security, and to agencies of State and local governments and private sector entities with such responsibilities in order to assist in the deterrence, prevention, preemption of, or response to, terrorist attacks against the United States. (9) To consult with the Director of National Intelligence and other appropriate intelligence, law enforcement, or other elements of the Federal Government to establish collection priorities and strategies for information, including law enforcement- related information, relating to threats of terrorism against the United States through such means as the representation of the Department in discussions regarding requirements and priorities in the collection of such information. (10) To consult with State and local governments and private sector entities to ensure appropriate exchanges of information, including law enforcement- related information, relating to threats of terrorism against the United States. (11) To ensure that-- (A) any material received pursuant to this Act is protected from unauthorized disclosure and handled and used only for the performance of official duties; and (B) any intelligence information under this Act is shared, retained, and disseminated consistent with the authority of the Director of National Intelligence to protect intelligence sources and methods under the National Security Act of 1947 (50 U.S.C. 401 et seq.) and related procedures and, as appropriate, similar authorities of the Attorney General concerning sensitive law enforcement information. (12) To request additional information from other agencies of the Federal Government, State and local government agencies, and the private sector relating to threats of terrorism in the United States, or relating to other areas of responsibility assigned by the Secretary, including the entry into cooperative agreements through the Secretary to obtain such information. (13) To establish and utilize, in conjunction with the chief information officer of the Department, a secure communications and information technology infrastructure, including data-mining and other advanced analytical tools, in order to access, receive, and analyze data and information in furtherance of the responsibilities under this section, and to disseminate information acquired and analyzed by the Department, as appropriate. (14) To ensure, in conjunction with the chief information officer of the Department, that any information databases and analytical tools developed or utilized by the Department-- (A) are compatible with one another and with relevant information databases of other agencies of the Federal Government; and (B) treat information in such databases in a manner that complies with applicable Federal law on privacy. (15) To coordinate training and other support to the elements and personnel of the Department, other agencies of the Federal Government, and State and local governments that provide information to the Department, or are consumers of information provided by the Department, in order to facilitate the identification and sharing of information revealed in their ordinary duties and the optimal utilization of information received from the Department. (16) To coordinate with elements of the intelligence community and with Federal, State, and local law enforcement agencies, and the private sector, as appropriate. (17) To provide intelligence and information analysis and support to other elements of the Department. (18) To coordinate and enhance integration among the intelligence components of the Department, including through strategic oversight of the intelligence activities of such components. (19) To establish the intelligence collection, processing, analysis, and dissemination priorities, policies, processes, standards, guidelines, and procedures for the intelligence components of the Department, consistent with any directions from the President and, as applicable, the Director of National Intelligence. (20) To establish a structure and process to support the missions and goals of the intelligence components of the Department. (21) To ensure that, whenever possible, the Department-- (A) produces and disseminates unclassified reports and analytic products based on open- source information; and (B) produces and disseminates such reports and analytic products contemporaneously with reports or analytic products concerning the same or similar information that the Department produced and disseminated in a classified format. (22) To establish within the Office of Intelligence and Analysis an internal continuity of operations plan. (23) Based on intelligence priorities set by the President, and guidance from the Secretary and, as appropriate, the Director of National Intelligence-- (A) to provide to the heads of each intelligence component of the Department guidance for developing the budget pertaining to the activities of such component; and (B) to present to the Secretary a recommendation for a consolidated budget for the intelligence components of the Department, together with any comments from the heads of such components. (24) To perform such other duties relating to such responsibilities as the Secretary may provide. (25) To prepare and submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security in the House of Representatives, and to other appropriate congressional committees having jurisdiction over the critical infrastructure or key resources, for each sector identified in the National Infrastructure Protection Plan, a report on the comprehensive assessments carried out by the Secretary of the critical infrastructure and key resources of the United States, evaluating threat, vulnerability, and consequence, as required under this subsection. Each such report-- (A) shall contain, if applicable, actions or countermeasures recommended or taken by the Secretary or the head of another Federal agency to address issues identified in the assessments; (B) shall be required for fiscal year 2007 and each subsequent fiscal year and shall be submitted not later than 35 days after the last day of the fiscal year covered by the report; and (C) may be classified. (e) Staff.-- (1) In general.--The Secretary shall provide the Office of Intelligence and Analysis and the Office of Infrastructure Protection with a staff of analysts having appropriate expertise and experience to assist such offices in discharging responsibilities under this section. (2) Private sector analysts.--Analysts under this subsection may include analysts from the private sector. (3) Security clearances.--Analysts under this subsection shall possess security clearances appropriate for their work under this section. (f) Detail of Personnel.-- (1) In general.--In order to assist the Office of Intelligence and Analysis and the Office of Infrastructure Protection in discharging responsibilities under this section, personnel of the agencies referred to in paragraph (2) may be detailed to the Department for the performance of analytic functions and related duties. (2) Covered agencies.--The agencies referred to in this paragraph are as follows: (A) The Department of State. (B) The Central Intelligence Agency. (C) The Federal Bureau of Investigation. (D) The National Security Agency. (E) The National Imagery and Mapping Agency \1\. --------------------------------------------------------------------------- \1\ The reference to ``National Imagery and Mapping Agency'' in subsection (f)(2)(E) probably should be to ``National Geospatial- Intelligence Agency''. Section 931(b)(5) of Public Law 110-417 amends section 201(e)(2) by striking ``National Imagery and Mapping Agency'' and inserting ``National Geospatial-Intelligence Agency''. The amendment was not executed. --------------------------------------------------------------------------- (F) The Defense Intelligence Agency. (G) Any other agency of the Federal Government that the President considers appropriate. (3) Cooperative agreements.--The Secretary and the head of the agency concerned may enter into cooperative agreements for the purpose of detailing personnel under this subsection. (4) Basis.--The detail of personnel under this subsection may be on a reimbursable or non-reimbursable basis. (g) Functions Transferred.--In accordance with title XV, there shall be transferred to the Secretary, for assignment to the Office of Intelligence and Analysis and the Office of Infrastructure Protection under this section, the functions, personnel, assets, and liabilities of the following: (1) The National Infrastructure Protection Center of the Federal Bureau of Investigation (other than the Computer Investigations and Operations Section), including the functions of the Attorney General relating thereto. (2) The National Communications System of the Department of Defense, including the functions of the Secretary of Defense relating thereto. (3) The Critical Infrastructure Assurance Office of the Department of Commerce, including the functions of the Secretary of Commerce relating thereto. (4) The National Infrastructure Simulation and Analysis Center of the Department of Energy and the energy security and assurance program and activities of the Department, including the functions of the Secretary of Energy relating thereto. (5) The Federal Computer Incident Response Center of the General Services Administration, including the functions of the Administrator of General Services relating thereto. * * * * * * * SEC. 202. [6 U.S.C. 122] ACCESS TO INFORMATION. (a) In General.-- (1) Threat and vulnerability information.--Except as otherwise directed by the President, the Secretary shall have such access as the Secretary considers necessary to all information, including reports, assessments, analyses, and unevaluated intelligence relating to threats of terrorism against the United States and to other areas of responsibility assigned by the Secretary, and to all information concerning infrastructure or other vulnerabilities of the United States to terrorism, whether or not such information has been analyzed, that may be collected, possessed, or prepared by any agency of the Federal Government. (2) Other information.--The Secretary shall also have access to other information relating to matters under the responsibility of the Secretary that may be collected, possessed, or prepared by an agency of the Federal Government as the President may further provide. (b) Manner of Access.--Except as otherwise directed by the President, with respect to information to which the Secretary has access pursuant to this section-- (1) the Secretary may obtain such material upon request, and may enter into cooperative arrangements with other executive agencies to provide such material or provide Department officials with access to it on a regular or routine basis, including requests or arrangements involving broad categories of material, access to electronic databases, or both; and (2) regardless of whether the Secretary has made any request or entered into any cooperative arrangement pursuant to paragraph (1), all agencies of the Federal Government shall promptly provide to the Secretary-- (A) all reports (including information reports containing intelligence which has not been fully evaluated), assessments, and analytical information relating to threats of terrorism against the United States and to other areas of responsibility assigned by the Secretary; (B) all information concerning the vulnerability of the infrastructure of the United States, or other vulnerabilities of the United States, to terrorism, whether or not such information has been analyzed; (C) all other information relating to significant and credible threats of terrorism against the United States, whether or not such information has been analyzed; and (D) such other information or material as the President may direct. (c) Treatment Under Certain Laws.--The Secretary shall be deemed to be a Federal law enforcement, intelligence, protective, national defense, immigration, or national security official, and shall be provided with all information from law enforcement agencies that is required to be given to the Director of Central Intelligence, under any provision of the following: (1) The USA PATRIOT Act of 2001 (Public Law 107- 56). (2) Section 2517(6) of title 18, United States Code. (3) Rule 6(e)(3)(C) of the Federal Rules of Criminal Procedure. (d) Access to Intelligence and Other Information.-- (1) Access by elements of federal government.-- Nothing in this title shall preclude any element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)), or any other element of the Federal Government with responsibility for analyzing terrorist threat information, from receiving any intelligence or other information relating to terrorism. (2) Sharing of information.--The Secretary, in consultation with the Director of Central Intelligence, shall work to ensure that intelligence or other information relating to terrorism to which the Department has access is appropriately shared with the elements of the Federal Government referred to in paragraph (1), as well as with State and local governments, as appropriate. SEC. 203. [6 U.S.C. 124] HOMELAND SECURITY ADVISORY SYSTEM. (a) Requirement.--The Secretary shall administer the Homeland Security Advisory System in accordance with this section to provide advisories or warnings regarding the threat or risk that acts of terrorism will be committed on the homeland to Federal, State, local, and tribal government authorities and to the people of the United States, as appropriate. The Secretary shall exercise primary responsibility for providing such advisories or warnings. (b) Required Elements.--In administering the Homeland Security Advisory System, the Secretary shall-- (1) establish criteria for the issuance and revocation of such advisories or warnings; (2) develop a methodology, relying on the criteria established under paragraph (1), for the issuance and revocation of such advisories or warnings; (3) provide, in each such advisory or warning, specific information and advice regarding appropriate protective measures and countermeasures that may be taken in response to the threat or risk, at the maximum level of detail practicable to enable individuals, government entities, emergency response providers, and the private sector to act appropriately; (4) whenever possible, limit the scope of each such advisory or warning to a specific region, locality, or economic sector believed to be under threat or at risk; and (5) not, in issuing any advisory or warning, use color designations as the exclusive means of specifying homeland security threat conditions that are the subject of the advisory or warning. SEC. 204. [6 U.S.C. 124A] HOMELAND SECURITY INFORMATION SHARING. (a) Information Sharing.--Consistent with section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), the Secretary, acting through the Under Secretary for Intelligence and Analysis, shall integrate the information and standardize the format of the products of the intelligence components of the Department containing homeland security information, terrorism information, weapons of mass destruction information, or national intelligence (as defined in section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5))) except for any internal security protocols or personnel information of such intelligence components, or other administrative processes that are administered by any chief security officer of the Department. (b) Information Sharing and Knowledge Management Officers.--For each intelligence component of the Department, the Secretary shall designate an information sharing and knowledge management officer who shall report to the Under Secretary for Intelligence and Analysis regarding coordinating the different systems used in the Department to gather and disseminate homeland security information or national intelligence (as defined in section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5))). (c) State, Local, and Private-Sector Sources of Information.-- (1) Establishment of business processes.--The Secretary, acting through the Under Secretary for Intelligence and Analysis or the Assistant Secretary for Infrastructure Protection, as appropriate, shall-- (A) establish Department-wide procedures for the review and analysis of information provided by State, local, and tribal governments and the private sector; (B) as appropriate, integrate such information into the information gathered by the Department and other departments and agencies of the Federal Government; and (C) make available such information, as appropriate, within the Department and to other departments and agencies of the Federal Government. (2) Feedback.--The Secretary shall develop mechanisms to provide feedback regarding the analysis and utility of information provided by any entity of State, local, or tribal government or the private sector that provides such information to the Department. (d) Training and Evaluation of Employees.-- (1) Training.--The Secretary, acting through the Under Secretary for Intelligence and Analysis or the Assistant Secretary for Infrastructure Protection, as appropriate, shall provide to employees of the Department opportunities for training and education to develop an understanding of-- (A) the definitions of homeland security information and national intelligence (as defined in section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5))); and (B) how information available to such employees as part of their duties-- (i) might qualify as homeland security information or national intelligence; and (ii) might be relevant to the Office of Intelligence and Analysis and the intelligence components of the Department. (2) Evaluations.--The Under Secretary for Intelligence and Analysis shall-- (A) on an ongoing basis, evaluate how employees of the Office of Intelligence and Analysis and the intelligence components of the Department are utilizing homeland security information or national intelligence, sharing information within the Department, as described in this title, and participating in the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485); and (B) provide to the appropriate component heads regular reports regarding the evaluations under subparagraph (A). SEC. 205. [6 U.S.C. 124B] COMPREHENSIVE INFORMATION TECHNOLOGY NETWORK ARCHITECTURE. (a) Establishment.--The Secretary, acting through the Under Secretary for Intelligence and Analysis, shall establish, consistent with the policies and procedures developed under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), and consistent with the enterprise architecture of the Department, a comprehensive information technology network architecture for the Office of Intelligence and Analysis that connects the various databases and related information technology assets of the Office of Intelligence and Analysis and the intelligence components of the Department in order to promote internal information sharing among the intelligence and other personnel of the Department. (b) Comprehensive Information Technology Network Architecture Defined.--The term ``comprehensive information technology network architecture'' means an integrated framework for evolving or maintaining existing information technology and acquiring new information technology to achieve the strategic management and information resources management goals of the Office of Intelligence and Analysis. SEC. 206. [6 U.S.C. 124C] COORDINATION WITH INFORMATION SHARING ENVIRONMENT. (a) Guidance.--All activities to comply with sections 203, 204, and 205 shall be-- (1) consistent with any policies, guidelines, procedures, instructions, or standards established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485); (2) implemented in coordination with, as appropriate, the program manager for the information sharing environment established under that section; (3) consistent with any applicable guidance issued by the Director of National Intelligence; and (4) consistent with any applicable guidance issued by the Secretary relating to the protection of law enforcement information or proprietary information. (b) Consultation.--In carrying out the duties and responsibilities under this subtitle, the Under Secretary for Intelligence and Analysis shall take into account the views of the heads of the intelligence components of the Department. SEC. 207. [6 U.S.C. 124D] INTELLIGENCE COMPONENTS. Subject to the direction and control of the Secretary, and consistent with any applicable guidance issued by the Director of National Intelligence, the responsibilities of the head of each intelligence component of the Department are as follows: (1) To ensure that the collection, processing, analysis, and dissemination of information within the scope of the information sharing environment, including homeland security information, terrorism information, weapons of mass destruction information, and national intelligence (as defined in section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5))), are carried out effectively and efficiently in support of the intelligence mission of the Department, as led by the Under Secretary for Intelligence and Analysis. (2) To otherwise support and implement the intelligence mission of the Department, as led by the Under Secretary for Intelligence and Analysis. (3) To incorporate the input of the Under Secretary for Intelligence and Analysis with respect to performance appraisals, bonus or award recommendations, pay adjustments, and other forms of commendation. (4) To coordinate with the Under Secretary for Intelligence and Analysis in developing policies and requirements for the recruitment and selection of intelligence officials of the intelligence component. (5) To advise and coordinate with the Under Secretary for Intelligence and Analysis on any plan to reorganize or restructure the intelligence component that would, if implemented, result in realignments of intelligence functions. (6) To ensure that employees of the intelligence component have knowledge of, and comply with, the programs and policies established by the Under Secretary for Intelligence and Analysis and other appropriate officials of the Department and that such employees comply with all applicable laws and regulations. (7) To perform such other activities relating to such responsibilities as the Secretary may provide. SEC. 208. [6 U.S.C. 124E] TRAINING FOR EMPLOYEES OF INTELLIGENCE COMPONENTS. The Secretary shall provide training and guidance for employees, officials, and senior executives of the intelligence components of the Department to develop knowledge of laws, regulations, operations, policies, procedures, and programs that are related to the functions of the Department relating to the collection, processing, analysis, and dissemination of information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, or national intelligence (as defined in section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5))). SEC. 209. [6 U.S.C. 124F] INTELLIGENCE TRAINING DEVELOPMENT FOR STATE AND LOCAL GOVERNMENT OFFICIALS. (a) Curriculum.--The Secretary, acting through the Under Secretary for Intelligence and Analysis, shall-- (1) develop a curriculum for training State, local, and tribal government officials, including law enforcement officers, intelligence analysts, and other emergency response providers, in the intelligence cycle and Federal laws, practices, and regulations regarding the development, handling, and review of intelligence and other information; and (2) ensure that the curriculum includes executive level training for senior level State, local, and tribal law enforcement officers, intelligence analysts, and other emergency response providers. (b) Training.--To the extent possible, the Federal Law Enforcement Training Center and other existing Federal entities with the capacity and expertise to train State, local, and tribal government officials based on the curriculum developed under subsection (a) shall be used to carry out the training programs created under this section. If such entities do not have the capacity, resources, or capabilities to conduct such training, the Secretary may approve another entity to conduct such training. (c) Consultation.--In carrying out the duties described in subsection (a), the Under Secretary for Intelligence and Analysis shall consult with the Director of the Federal Law Enforcement Training Center, the Attorney General, the Director of National Intelligence, the Administrator of the Federal Emergency Management Agency, and other appropriate parties, such as private industry, institutions of higher education, nonprofit institutions, and other intelligence agencies of the Federal Government. SEC. 210. [6 U.S.C. 124G] INFORMATION SHARING INCENTIVES. (a) Awards.--In making cash awards under chapter 45 of title 5, United States Code, the President or the head of an agency, in consultation with the program manager designated under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), may consider the success of an employee in appropriately sharing information within the scope of the information sharing environment established under that section, including homeland security information, terrorism information, and weapons of mass destruction information, or national intelligence (as defined in section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5)), in a manner consistent with any policies, guidelines, procedures, instructions, or standards established by the President or, as appropriate, the program manager of that environment for the implementation and management of that environment. (b) Other Incentives.--The head of each department or agency described in section 1016(i) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485(i)), in consultation with the program manager designated under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), shall adopt best practices regarding effective ways to educate and motivate officers and employees of the Federal Government to participate fully in the information sharing environment, including-- (1) promotions and other nonmonetary awards; and (2) publicizing information sharing accomplishments by individual employees and, where appropriate, the tangible end benefits that resulted. SEC. 210A. [6 U.S.C. 124H] DEPARTMENT OF HOMELAND SECURITY STATE, LOCAL, AND REGIONAL FUSION CENTER INITIATIVE. (a) Establishment.--The Secretary, in consultation with the program manager of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), the Attorney General, the Privacy Officer of the Department, the Officer for Civil Rights and Civil Liberties of the Department, and the Privacy and Civil Liberties Oversight Board established under section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (5 U.S.C. 601 note), shall establish a Department of Homeland Security State, Local, and Regional Fusion Center Initiative to establish partnerships with State, local, and regional fusion centers. (b) Department Support and Coordination.--Through the Department of Homeland Security State, Local, and Regional Fusion Center Initiative, and in coordination with the principal officials of participating State, local, or regional fusion centers and the officers designated as the Homeland Security Advisors of the States, the Secretary shall-- (1) provide operational and intelligence advice and assistance to State, local, and regional fusion centers; (2) support efforts to include State, local, and regional fusion centers into efforts to establish an information sharing environment; (3) conduct tabletop and live training exercises to regularly assess the capability of individual and regional networks of State, local, and regional fusion centers to integrate the efforts of such networks with the efforts of the Department; (4) coordinate with other relevant Federal entities engaged in homeland security-related activities; (5) provide analytic and reporting advice and assistance to State, local, and regional fusion centers; (6) review information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, that is gathered by State, local, and regional fusion centers, and to incorporate such information, as appropriate, into the Department's own such information; (7) provide management assistance to State, local, and regional fusion centers; (8) serve as a point of contact to ensure the dissemination of information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information; (9) facilitate close communication and coordination between State, local, and regional fusion centers and the Department; (10) provide State, local, and regional fusion centers with expertise on Department resources and operations; (11) provide training to State, local, and regional fusion centers and encourage such fusion centers to participate in terrorism threat-related exercises conducted by the Department; and (12) carry out such other duties as the Secretary determines are appropriate. (c) Personnel Assignment.-- (1) In general.--The Under Secretary for Intelligence and Analysis shall, to the maximum extent practicable, assign officers and intelligence analysts from components of the Department to participating State, local, and regional fusion centers. (2) Personnel sources.--Officers and intelligence analysts assigned to participating fusion centers under this subsection may be assigned from the following Department components, in coordination with the respective component head and in consultation with the principal officials of participating fusion centers: (A) Office of Intelligence and Analysis. (B) Office of Infrastructure Protection. (C) Transportation Security Administration. (D) United States Customs and Border Protection. (E) United States Immigration and Customs Enforcement. (F) United States Coast Guard. (G) Other components of the Department, as determined by the Secretary. (3) Qualifying criteria.-- (A) In general.--The Secretary shall develop qualifying criteria for a fusion center to participate in the assigning of Department officers or intelligence analysts under this section. (B) Criteria.--Any criteria developed under subparagraph (A) may include-- (i) whether the fusion center, through its mission and governance structure, focuses on a broad counterterrorism approach, and whether that broad approach is pervasive through all levels of the organization; (ii) whether the fusion center has sufficient numbers of adequately trained personnel to support a broad counterterrorism mission; (iii) whether the fusion center has-- (I) access to relevant law enforcement, emergency response, private sector, open source, and national security data; and (II) the ability to share and analytically utilize that data for lawful purposes; (iv) whether the fusion center is adequately funded by the State, local, or regional government to support its counterterrorism mission; and (v) the relevancy of the mission of the fusion center to the particular source component of Department officers or intelligence analysts. (4) Prerequisite.-- (A) Intelligence analysis, privacy, and civil liberties training.--Before being assigned to a fusion center under this section, an officer or intelligence analyst shall undergo-- (i) appropriate intelligence analysis or information sharing training using an intelligence-led policing curriculum that is consistent with-- (I) standard training and education programs offered to Department law enforcement and intelligence personnel; and (II) the Criminal Intelligence Systems Operating Policies under part 23 of title 28, Code of Federal Regulations (or any corresponding similar rule or regulation); (ii) appropriate privacy and civil liberties training that is developed, supported, or sponsored by the Privacy Officer appointed under section 222 and the Officer for Civil Rights and Civil Liberties of the Department, in consultation with the Privacy and Civil Liberties Oversight Board established under section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (5 U.S.C. 601 note); and (iii) such other training prescribed by the Under Secretary for Intelligence and Analysis. (B) Prior work experience in area.--In determining the eligibility of an officer or intelligence analyst to be assigned to a fusion center under this section, the Under Secretary for Intelligence and Analysis shall consider the familiarity of the officer or intelligence analyst with the State, locality, or region, as determined by such factors as whether the officer or intelligence analyst-- (i) has been previously assigned in the geographic area; or (ii) has previously worked with intelligence officials or law enforcement or other emergency response providers from that State, locality, or region. (5) Expedited security clearance processing.--The Under Secretary for Intelligence and Analysis-- (A) shall ensure that each officer or intelligence analyst assigned to a fusion center under this section has the appropriate security clearance to contribute effectively to the mission of the fusion center; and (B) may request that security clearance processing be expedited for each such officer or intelligence analyst and may use available funds for such purpose. (6) Further qualifications.--Each officer or intelligence analyst assigned to a fusion center under this section shall satisfy any other qualifications the Under Secretary for Intelligence and Analysis may prescribe. (d) Responsibilities.--An officer or intelligence analyst assigned to a fusion center under this section shall-- (1) assist law enforcement agencies and other emergency response providers of State, local, and tribal governments and fusion center personnel in using information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, to develop a comprehensive and accurate threat picture; (2) review homeland security-relevant information from law enforcement agencies and other emergency response providers of State, local, and tribal government; (3) create intelligence and other information products derived from such information and other homeland security-relevant information provided by the Department; and (4) assist in the dissemination of such products, as coordinated by the Under Secretary for Intelligence and Analysis, to law enforcement agencies and other emergency response providers of State, local, and tribal government, other fusion centers, and appropriate Federal agencies. (e) Border Intelligence Priority.-- (1) In general.--The Secretary shall make it a priority to assign officers and intelligence analysts under this section from United States Customs and Border Protection, United States Immigration and Customs Enforcement, and the Coast Guard to participating State, local, and regional fusion centers located in jurisdictions along land or maritime borders of the United States in order to enhance the integrity of and security at such borders by helping Federal, State, local, and tribal law enforcement authorities to identify, investigate, and otherwise interdict persons, weapons, and related contraband that pose a threat to homeland security. (2) Border intelligence products.--When performing the responsibilities described in subsection (d), officers and intelligence analysts assigned to participating State, local, and regional fusion centers under this section shall have, as a primary responsibility, the creation of border intelligence products that-- (A) assist State, local, and tribal law enforcement agencies in deploying their resources most efficiently to help detect and interdict terrorists, weapons of mass destruction, and related contraband at land or maritime borders of the United States; (B) promote more consistent and timely sharing of border security-relevant information among jurisdictions along land or maritime borders of the United States; and (C) enhance the Department's situational awareness of the threat of acts of terrorism at or involving the land or maritime borders of the United States. (f) Database Access.--In order to fulfill the objectives described under subsection (d), each officer or intelligence analyst assigned to a fusion center under this section shall have appropriate access to all relevant Federal databases and information systems, consistent with any policies, guidelines, procedures, instructions, or standards established by the President or, as appropriate, the program manager of the information sharing environment for the implementation and management of that environment. (g) Consumer Feedback.-- (1) In general.--The Secretary shall create a voluntary mechanism for any State, local, or tribal law enforcement officer or other emergency response provider who is a consumer of the intelligence or other information products referred to in subsection (d) to provide feedback to the Department on the quality and utility of such intelligence products. (2) Report.--Not later than one year after the date of the enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, and annually thereafter, the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a report that includes a description of the consumer feedback obtained under paragraph (1) and, if applicable, how the Department has adjusted its production of intelligence products in response to that consumer feedback. (h) Rule of Construction.-- (1) In general.--The authorities granted under this section shall supplement the authorities granted under section 201(d) and nothing in this section shall be construed to abrogate the authorities granted under section 201(d). (2) Participation.--Nothing in this section shall be construed to require a State, local, or regional government or entity to accept the assignment of officers or intelligence analysts of the Department into the fusion center of that State, locality, or region. (i) Guidelines.--The Secretary, in consultation with the Attorney General, shall establish guidelines for fusion centers created and operated by State and local governments, to include standards that any such fusion center shall-- (1) collaboratively develop a mission statement, identify expectations and goals, measure performance, and determine effectiveness for that fusion center; (2) create a representative governance structure that includes law enforcement officers and other emergency response providers and, as appropriate, the private sector; (3) create a collaborative environment for the sharing of intelligence and information among Federal, State, local, and tribal government agencies (including law enforcement officers and other emergency response providers), the private sector, and the public, consistent with any policies, guidelines, procedures, instructions, or standards established by the President or, as appropriate, the program manager of the information sharing environment; (4) leverage the databases, systems, and networks available from public and private sector entities, in accordance with all applicable laws, to maximize information sharing; (5) develop, publish, and adhere to a privacy and civil liberties policy consistent with Federal, State, and local law; (6) provide, in coordination with the Privacy Officer of the Department and the Officer for Civil Rights and Civil Liberties of the Department, appropriate privacy and civil liberties training for all State, local, tribal, and private sector representatives at the fusion center; (7) ensure appropriate security measures are in place for the facility, data, and personnel; (8) select and train personnel based on the needs, mission, goals, and functions of that fusion center; (9) offer a variety of intelligence and information services and products to recipients of fusion center intelligence and information; and (10) incorporate law enforcement officers, other emergency response providers, and, as appropriate, the private sector, into all relevant phases of the intelligence and fusion process, consistent with the mission statement developed under paragraph (1), either through full time representatives or liaison relationships with the fusion center to enable the receipt and sharing of information and intelligence. (j) Definitions.--In this section-- (1) the term ``fusion center'' means a collaborative effort of 2 or more Federal, State, local, or tribal government agencies that combines resources, expertise, or information with the goal of maximizing the ability of such agencies to detect, prevent, investigate, apprehend, and respond to criminal or terrorist activity; (2) the term ``information sharing environment'' means the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485); (3) the term ``intelligence analyst'' means an individual who regularly advises, administers, supervises, or performs work in the collection, gathering, analysis, evaluation, reporting, production, or dissemination of information on political, economic, social, cultural, physical, geographical, scientific, or military conditions, trends, or forces in foreign or domestic areas that directly or indirectly affect national security; (4) the term ``intelligence-led policing'' means the collection and analysis of information to produce an intelligence end product designed to inform law enforcement decision making at the tactical and strategic levels; and (5) the term ``terrorism information'' has the meaning given that term in section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485). (k) Authorization of Appropriations.--There is authorized to be appropriated $10,000,000 for each of fiscal years 2008 through 2012, to carry out this section, except for subsection (i), including for hiring officers and intelligence analysts to replace officers and intelligence analysts who are assigned to fusion centers under this section. SEC. 210B. [6 U.S.C. 124I] HOMELAND SECURITY INFORMATION SHARING FELLOWS PROGRAM. (a) Establishment.-- (1) In general.--The Secretary, acting through the Under Secretary for Intelligence and Analysis, and in consultation with the Chief Human Capital Officer, shall establish a fellowship program in accordance with this section for the purpose of-- (A) detailing State, local, and tribal law enforcement officers and intelligence analysts to the Department in accordance with subchapter VI of chapter 33 of title 5, United States Code, to participate in the work of the Office of Intelligence and Analysis in order to become familiar with-- (i) the relevant missions and capabilities of the Department and other Federal agencies; and (ii) the role, programs, products, and personnel of the Office of Intelligence and Analysis; and (B) promoting information sharing between the Department and State, local, and tribal law enforcement officers and intelligence analysts by assigning such officers and analysts to-- (i) serve as a point of contact in the Department to assist in the representation of State, local, and tribal information requirements; (ii) identify information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, that is of interest to State, local, and tribal law enforcement officers, intelligence analysts, and other emergency response providers; (iii) assist Department analysts in preparing and disseminating products derived from information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, that are tailored to State, local, and tribal law enforcement officers and intelligence analysts and designed to prepare for and thwart acts of terrorism; and (iv) assist Department analysts in preparing products derived from information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, that are tailored to State, local, and tribal emergency response providers and assist in the dissemination of such products through appropriate Department channels. (2) Program name.--The program under this section shall be known as the ``Homeland Security Information Sharing Fellows Program''. (b) Eligibility.-- (1) In general.--In order to be eligible for selection as an Information Sharing Fellow under the program under this section, an individual shall-- (A) have homeland security-related responsibilities; (B) be eligible for an appropriate security clearance; (C) possess a valid need for access to classified information, as determined by the Under Secretary for Intelligence and Analysis; (D) be an employee of an eligible entity; and (E) have undergone appropriate privacy and civil liberties training that is developed, supported, or sponsored by the Privacy Officer and the Officer for Civil Rights and Civil Liberties, in consultation with the Privacy and Civil Liberties Oversight Board established under section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (5 U.S.C. 601 note). (2) Eligible entities.--In this subsection, the term ``eligible entity'' means-- (A) a State, local, or regional fusion center; (B) a State or local law enforcement or other government entity that serves a major metropolitan area, suburban area, or rural area, as determined by the Secretary; (C) a State or local law enforcement or other government entity with port, border, or agricultural responsibilities, as determined by the Secretary; (D) a tribal law enforcement or other authority; or (E) such other entity as the Secretary determines is appropriate. (c) Optional Participation.--No State, local, or tribal law enforcement or other government entity shall be required to participate in the Homeland Security Information Sharing Fellows Program. (d) Procedures for Nomination and Selection.-- (1) In general.--The Under Secretary for Intelligence and Analysis shall establish procedures to provide for the nomination and selection of individuals to participate in the Homeland Security Information Sharing Fellows Program. (2) Limitations.--The Under Secretary for Intelligence and Analysis shall-- (A) select law enforcement officers and intelligence analysts representing a broad cross-section of State, local, and tribal agencies; and (B) ensure that the number of Information Sharing Fellows selected does not impede the activities of the Office of Intelligence and Analysis. SEC. 210C. [6 U.S.C. 124J] RURAL POLICING INSTITUTE. (a) In General.--The Secretary shall establish a Rural Policing Institute, which shall be administered by the Federal Law Enforcement Training Center, to target training to law enforcement agencies and other emergency response providers located in rural areas. The Secretary, through the Rural Policing Institute, shall-- (1) evaluate the needs of law enforcement agencies and other emergency response providers in rural areas; (2) develop expert training programs designed to address the needs of law enforcement agencies and other emergency response providers in rural areas as identified in the evaluation conducted under paragraph (1), including training programs about intelligence-led policing and protections for privacy, civil rights, and civil liberties; (3) provide the training programs developed under paragraph (2) to law enforcement agencies and other emergency response providers in rural areas; and (4) conduct outreach efforts to ensure that local and tribal governments in rural areas are aware of the training programs developed under paragraph (2) so they can avail themselves of such programs. (b) Curricula.--The training at the Rural Policing Institute established under subsection (a) shall-- (1) be configured in a manner so as not to duplicate or displace any law enforcement or emergency response program of the Federal Law Enforcement Training Center or a local or tribal government entity in existence on the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007; and (2) to the maximum extent practicable, be delivered in a cost-effective manner at facilities of the Department, on closed military installations with adequate training facilities, or at facilities operated by the participants. (c) Definition.--In this section, the term ``rural'' means an area that is not located in a metropolitan statistical area, as defined by the Office of Management and Budget. (d) Authorization of Appropriations.--There are authorized to be appropriated to carry out this section (including for contracts, staff, and equipment)-- (1) $10,000,000 for fiscal year 2008; and (2) $5,000,000 for each of fiscal years 2009 through 2013. SEC. 210D. [6 U.S.C. 124K] INTERAGENCY THREAT ASSESSMENT AND COORDINATION GROUP. (a) In General.--To improve the sharing of information within the scope of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485) with State, local, tribal, and private sector officials, the Director of National Intelligence, through the program manager for the information sharing environment, in coordination with the Secretary, shall coordinate and oversee the creation of an Interagency Threat Assessment and Coordination Group (referred to in this section as the ``ITACG''). (b) Composition of ITACG.--The ITACG shall consist of-- (1) an ITACG Advisory Council to set policy and develop processes for the integration, analysis, and dissemination of federally-coordinated information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information; and (2) an ITACG Detail comprised of State, local, and tribal homeland security and law enforcement officers and intelligence analysts detailed to work in the National Counterterrorism Center with Federal intelligence analysts for the purpose of integrating, analyzing, and assisting in the dissemination of federally-coordinated information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, through appropriate channels identified by the ITACG Advisory Council. (c) Responsibilities of Program Manager.--The program manager, in consultation with the Information Sharing Council, shall-- (1) monitor and assess the efficacy of the ITACG; and (2) not later than 180 days after the date of the enactment of the Implementing Recommendations of the 9/ 11 Commission Act of 2007, and at least annually thereafter, submit to the Secretary, the Attorney General, the Director of National Intelligence, the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a report on the progress of the ITACG. (d) Responsibilities of Secretary.--The Secretary, or the Secretary's designee, in coordination with the Director of the National Counterterrorism Center and the ITACG Advisory Council, shall-- (1) create policies and standards for the creation of information products derived from information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, that are suitable for dissemination to State, local, and tribal governments and the private sector; (2) evaluate and develop processes for the timely dissemination of federally-coordinated information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, to State, local, and tribal governments and the private sector; (3) establish criteria and a methodology for indicating to State, local, and tribal governments and the private sector the reliability of information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, disseminated to them; (4) educate the intelligence community about the requirements of the State, local, and tribal homeland security, law enforcement, and other emergency response providers regarding information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information; (5) establish and maintain the ITACG Detail, which shall assign an appropriate number of State, local, and tribal homeland security and law enforcement officers and intelligence analysts to work in the National Counterterrorism Center who shall-- (A) educate and advise National Counterterrorism Center intelligence analysts about the requirements of the State, local, and tribal homeland security and law enforcement officers, and other emergency response providers regarding information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information; (B) assist National Counterterrorism Center intelligence analysts in integrating, analyzing, and otherwise preparing versions of products derived from information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information that are unclassified or classified at the lowest possible level and suitable for dissemination to State, local, and tribal homeland security and law enforcement agencies in order to help deter and prevent terrorist attacks; (C) implement, in coordination with National Counterterrorism Center intelligence analysts, the policies, processes, procedures, standards, and guidelines developed by the ITACG Advisory Council; (D) assist in the dissemination of products derived from information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, to State, local, and tribal jurisdictions only through appropriate channels identified by the ITACG Advisory Council; and (E) report directly to the senior intelligence official from the Department under paragraph (6); (6) detail a senior intelligence official from the Department of Homeland Security to the National Counterterrorism Center, who shall-- (A) manage the day-to-day operations of the ITACG Detail; (B) report directly to the Director of the National Counterterrorism Center or the Director's designee; and (C) in coordination with the Director of the Federal Bureau of Investigation, and subject to the approval of the Director of the National Counterterrorism Center, select a deputy from the pool of available detailees from the Federal Bureau of Investigation in the National Counterterrorism Center; and (7) establish, within the ITACG Advisory Council, a mechanism to select law enforcement officers and intelligence analysts for placement in the National Counterterrorism Center consistent with paragraph (5), using criteria developed by the ITACG Advisory Council that shall encourage participation from a broadly representative group of State, local, and tribal homeland security and law enforcement agencies. (e) Membership.--The Secretary, or the Secretary's designee, shall serve as the chair of the ITACG Advisory Council, which shall include-- (1) representatives of-- (A) the Department; (B) the Federal Bureau of Investigation; (C) the National Counterterrorism Center; (D) the Department of Defense; (E) the Department of Energy; (F) the Department of State; and (G) other Federal entities as appropriate; (2) the program manager of the information sharing environment, designated under section 1016(f) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485(f)), or the program manager's designee; and (3) executive level law enforcement and intelligence officials from State, local, and tribal governments. (f) Criteria.--The Secretary, in consultation with the Director of National Intelligence, the Attorney General, and the program manager of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), shall-- (1) establish procedures for selecting members of the ITACG Advisory Council and for the proper handling and safeguarding of products derived from information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, by those members; and (2) ensure that at least 50 percent of the members of the ITACG Advisory Council are from State, local, and tribal governments. (g) Operations.-- (1) In general.--Beginning not later than 90 days after the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, the ITACG Advisory Council shall meet regularly, but not less than quarterly, at the facilities of the National Counterterrorism Center of the Office of the Director of National Intelligence. (2) Management.--Pursuant to section 119(f)(E) of the National Security Act of 1947 (50 U.S.C. 404o(f)(E)), the Director of the National Counterterrorism Center, acting through the senior intelligence official from the Department of Homeland Security detailed pursuant to subsection (d)(6), shall ensure that-- (A) the products derived from information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, prepared by the National Counterterrorism Center and the ITACG Detail for distribution to State, local, and tribal homeland security and law enforcement agencies reflect the requirements of such agencies and are produced consistently with the policies, processes, procedures, standards, and guidelines established by the ITACG Advisory Council; (B) in consultation with the ITACG Advisory Council and consistent with sections 102A(f)(1)(B)(iii) and 119(f)(E) of the National Security Act of 1947 (50 U.S.C. 402 et seq.), all products described in subparagraph (A) are disseminated through existing channels of the Department and the Department of Justice and other appropriate channels to State, local, and tribal government officials and other entities; (C) all detailees under subsection (d)(5) have appropriate access to all relevant information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, available at the National Counterterrorism Center in order to accomplish the objectives under that paragraph; (D) all detailees under subsection (d)(5) have the appropriate security clearances and are trained in the procedures for handling, processing, storing, and disseminating classified products derived from information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information; and (E) all detailees under subsection (d)(5) complete appropriate privacy and civil liberties training. (h) Inapplicability of the Federal Advisory Committee Act.--The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the ITACG or any subsidiary groups thereof. (i) Authorization of Appropriations.--There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section, including to obtain security clearances for the State, local, and tribal participants in the ITACG. SEC. 210E. [6 U.S.C. 124L] NATIONAL ASSET DATABASE. (a) Establishment.-- (1) National asset database.--The Secretary shall establish and maintain a national database of each system or asset that-- (A) the Secretary, in consultation with appropriate homeland security officials of the States, determines to be vital and the loss, interruption, incapacity, or destruction of which would have a negative or debilitating effect on the economic security, public health, or safety of the United States, any State, or any local government; or (B) the Secretary determines is appropriate for inclusion in the database. (2) Prioritized critical infrastructure list.--In accordance with Homeland Security Presidential Directive-7, as in effect on January 1, 2007, the Secretary shall establish and maintain a single classified prioritized list of systems and assets included in the database under paragraph (1) that the Secretary determines would, if destroyed or disrupted, cause national or regional catastrophic effects. (b) Use of Database.--The Secretary shall use the database established under subsection (a)(1) in the development and implementation of Department plans and programs as appropriate. (c) Maintenance of Database.-- (1) In general.--The Secretary shall maintain and annually update the database established under subsection (a)(1) and the list established under subsection (a)(2), including-- (A) establishing data collection guidelines and providing such guidelines to the appropriate homeland security official of each State; (B) regularly reviewing the guidelines established under subparagraph (A), including by consulting with the appropriate homeland security officials of States, to solicit feedback about the guidelines, as appropriate; (C) after providing the homeland security official of a State with the guidelines under subparagraph (A), allowing the official a reasonable amount of time to submit to the Secretary any data submissions recommended by the official for inclusion in the database established under subsection (a)(1); (D) examining the contents and identifying any submissions made by such an official that are described incorrectly or that do not meet the guidelines established under subparagraph (A); and (E) providing to the appropriate homeland security official of each relevant State a list of submissions identified under subparagraph (D) for review and possible correction before the Secretary finalizes the decision of which submissions will be included in the database established under subsection (a)(1). (2) Organization of information in database.--The Secretary shall organize the contents of the database established under subsection (a)(1) and the list established under subsection (a)(2) as the Secretary determines is appropriate. Any organizational structure of such contents shall include the categorization of the contents-- (A) according to the sectors listed in National Infrastructure Protection Plan developed pursuant to Homeland Security Presidential Directive-7; and (B) by the State and county of their location. (3) Private sector integration.--The Secretary shall identify and evaluate methods, including the Department's Protected Critical Infrastructure Information Program, to acquire relevant private sector information for the purpose of using that information to generate any database or list, including the database established under subsection (a)(1) and the list established under subsection (a)(2). (4) Retention of classification.--The classification of information required to be provided to Congress, the Department, or any other department or agency under this section by a sector-specific agency, including the assignment of a level of classification of such information, shall be binding on Congress, the Department, and that other Federal agency. (d) Reports.-- (1) Report required.--Not later than 180 days after the date of the enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, and annually thereafter, the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a report on the database established under subsection (a)(1) and the list established under subsection (a)(2). (2) Contents of report.--Each such report shall include the following: (A) The name, location, and sector classification of each of the systems and assets on the list established under subsection (a)(2). (B) The name, location, and sector classification of each of the systems and assets on such list that are determined by the Secretary to be most at risk to terrorism. (C) Any significant challenges in compiling the list of the systems and assets included on such list or in the database established under subsection (a)(1). (D) Any significant changes from the preceding report in the systems and assets included on such list or in such database. (E) If appropriate, the extent to which such database and such list have been used, individually or jointly, for allocating funds by the Federal Government to prevent, reduce, mitigate, or respond to acts of terrorism. (F) The amount of coordination between the Department and the private sector, through any entity of the Department that meets with representatives of private sector industries for purposes of such coordination, for the purpose of ensuring the accuracy of such database and such list. (G) Any other information the Secretary deems relevant. (3) Classified information.--The report shall be submitted in unclassified form but may contain a classified annex. (e) Inspector General Study.--By not later than two years after the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, the Inspector General of the Department shall conduct a study of the implementation of this section. (f) National Infrastructure Protection Consortium.--The Secretary may establish a consortium to be known as the ``National Infrastructure Protection Consortium''. The Consortium may advise the Secretary on the best way to identify, generate, organize, and maintain any database or list of systems and assets established by the Secretary, including the database established under subsection (a)(1) and the list established under subsection (a)(2). If the Secretary establishes the National Infrastructure Protection Consortium, the Consortium may-- (1) be composed of national laboratories, Federal agencies, State and local homeland security organizations, academic institutions, or national Centers of Excellence that have demonstrated experience working with and identifying critical infrastructure and key resources; and (2) provide input to the Secretary on any request pertaining to the contents of such database or such list. Subtitle B--Critical Infrastructure Information SEC. 211. [6 U.S.C. 101 NOTE] SHORT TITLE. This subtitle may be cited as the ``Critical Infrastructure Information Act of 2002''. SEC. 212. [6 U.S.C. 131] DEFINITIONS. In this subtitle: (1) Agency.--The term ``agency'' has the meaning given it in section 551 of title 5, United States Code. (2) Covered federal agency.--The term ``covered Federal agency'' means the Department of Homeland Security. (3) Critical infrastructure information.--The term ``critical infrastructure information'' means information not customarily in the public domain and related to the security of critical infrastructure or protected systems-- (A) actual, potential, or threatened interference with, attack on, compromise of, or incapacitation of critical infrastructure or protected systems by either physical or computer-based attack or other similar conduct (including the misuse of or unauthorized access to all types of communications and data transmission systems) that violates Federal, State, or local law, harms interstate commerce of the United States, or threatens public health or safety; (B) the ability of any critical infrastructure or protected system to resist such interference, compromise, or incapacitation, including any planned or past assessment, projection, or estimate of the vulnerability of critical infrastructure or a protected system, including security testing, risk evaluation thereto, risk management planning, or risk audit; or (C) any planned or past operational problem or solution regarding critical infrastructure or protected systems, including repair, recovery, reconstruction, insurance, or continuity, to the extent it is related to such interference, compromise, or incapacitation. (4) Critical infrastructure protection program.-- The term ``critical infrastructure protection program'' means any component or bureau of a covered Federal agency that has been designated by the President or any agency head to receive critical infrastructure information. (5) Information sharing and analysis organization.--The term ``Information Sharing and Analysis Organization'' means any formal or informal entity or collaboration created or employed by public or private sector organizations, for purposes of-- (A) gathering and analyzing critical infrastructure information in order to better understand security problems and interdependencies related to critical infrastructure and protected systems, so as to ensure the availability, integrity, and reliability thereof; (B) communicating or disclosing critical infrastructure information to help prevent, detect, mitigate, or recover from the effects of a interference, compromise, or a incapacitation problem related to critical infrastructure or protected systems; and (C) voluntarily disseminating critical infrastructure information to its members, State, local, and Federal Governments, or any other entities that may be of assistance in carrying out the purposes specified in subparagraphs (A) and (B). (6) Protected system.--The term ``protected system''-- (A) means any service, physical or computer-based system, process, or procedure that directly or indirectly affects the viability of a facility of critical infrastructure; and (B) includes any physical or computer-based system, including a computer, computer system, computer or communications network, or any component hardware or element thereof, software program, processing instructions, or information or data in transmission or storage therein, irrespective of the medium of transmission or storage. (7) Voluntary.-- (A) In general.--The term ``voluntary'', in the case of any submittal of critical infrastructure information to a covered Federal agency, means the submittal thereof in the absence of such agency's exercise of legal authority to compel access to or submission of such information and may be accomplished by a single entity or an Information Sharing and Analysis Organization on behalf of itself or its members. (B) Exclusions.--The term ``voluntary''-- (i) in the case of any action brought under the securities laws as is defined in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47))-- (I) does not include information or statements contained in any documents or materials filed with the Securities and Exchange Commission, or with Federal banking regulators, pursuant to section 12(i) of the Securities Exchange Act of 1934 (15 U.S.C. 781(I)); and (II) with respect to the submittal of critical infrastructure information, does not include any disclosure or writing that when made accompanied the solicitation of an offer or a sale of securities; and (ii) does not include information or statements submitted or relied upon as a basis for making licensing or permitting determinations, or during regulatory proceedings. SEC. 213. [6 U.S.C. 132] DESIGNATION OF CRITICAL INFRASTRUCTURE PROTECTION PROGRAM. A critical infrastructure protection program may be designated as such by one of the following: (1) The President. (2) The Secretary of Homeland Security. SEC. 214. [6 U.S.C. 123] PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE INFORMATION. (a) Protection.-- (1) In general.--Notwithstanding any other provision of law, critical infrastructure information (including the identity of the submitting person or entity) that is voluntarily submitted to a covered Federal agency for use by that agency regarding the security of critical infrastructure and protected systems, analysis, warning, interdependency study, recovery, reconstitution, or other informational purpose, when accompanied by an express statement specified in paragraph (2)-- (A) shall be exempt from disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act); (B) shall not be subject to any agency rules or judicial doctrine regarding ex parte communications with a decision making official; (C) shall not, without the written consent of the person or entity submitting such information, be used directly by such agency, any other Federal, State, or local authority, or any third party, in any civil action arising under Federal or State law if such information is submitted in good faith; (D) shall not, without the written consent of the person or entity submitting such information, be used or disclosed by any officer or employee of the United States for purposes other than the purposes of this subtitle, except-- (i) in furtherance of an investigation or the prosecution of a criminal act; or (ii) when disclosure of the information would be-- (I) to either House of Congress, or to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee thereof or subcommittee of any such joint committee; or (II) to the Comptroller General, or any authorized representative of the Comptroller General, in the course of the performance of the duties of the General Accounting Office. (E) shall not, if provided to a State or local government or government agency-- (i) be made available pursuant to any State or local law requiring disclosure of information or records; (ii) otherwise be disclosed or distributed to any party by said State or local government or government agency without the written consent of the person or entity submitting such information; or (iii) be used other than for the purpose of protecting critical infrastructure or protected systems, or in furtherance of an investigation or the prosecution of a criminal act; and (F) does not constitute a waiver of any applicable privilege or protection provided under law, such as trade secret protection. (2) Express statement.--For purposes of paragraph (1), the term ``express statement'', with respect to information or records, means-- (A) in the case of written information or records, a written marking on the information or records substantially similar to the following: ``This information is voluntarily submitted to the Federal Government in expectation of protection from disclosure as provided by the provisions of the Critical Infrastructure Information Act of 2002.''; or (B) in the case of oral information, a similar written statement submitted within a reasonable period following the oral communication. (b) Limitation.--No communication of critical infrastructure information to a covered Federal agency made pursuant to this subtitle shall be considered to be an action subject to the requirements of the Federal Advisory Committee Act (5 U.S.C. App. 2). (c) Independently Obtained Information.--Nothing in this section shall be construed to limit or otherwise affect the ability of a State, local, or Federal Government entity, agency, or authority, or any third party, under applicable law, to obtain critical infrastructure information in a manner not covered by subsection (a), including any information lawfully and properly disclosed generally or broadly to the public and to use such information in any manner permitted by law. (d) Treatment of Voluntary Submittal of Information.--The voluntary submittal to the Government of information or records that are protected from disclosure by this subtitle shall not be construed to constitute compliance with any requirement to submit such information to a Federal agency under any other provision of law. (e) Procedures.-- (1) In general.--The Secretary of the Department of Homeland Security shall, in consultation with appropriate representatives of the National Security Council and the Office of Science and Technology Policy, establish uniform procedures for the receipt, care, and storage by Federal agencies of critical infrastructure information that is voluntarily submitted to the Government. The procedures shall be established not later than 90 days after the date of the enactment of this subtitle. (2) Elements.--The procedures established under paragraph (1) shall include mechanisms regarding-- (A) the acknowledgement of receipt by Federal agencies of critical infrastructure information that is voluntarily submitted to the Government; (B) the maintenance of the identification of such information as voluntarily submitted to the Government for purposes of and subject to the provisions of this subtitle; (C) the care and storage of such information; and (D) the protection and maintenance of the confidentiality of such information so as to permit the sharing of such information within the Federal Government and with State and local governments, and the issuance of notices and warnings related to the protection of critical infrastructure and protected systems, in such manner as to protect from public disclosure the identity of the submitting person or entity, or information that is proprietary, business sensitive, relates specifically to the submitting person or entity, and is otherwise not appropriately in the public domain. (f) Penalties.--Whoever, being an officer or employee of the United States or of any department or agency thereof, knowingly publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law, any critical infrastructure information protected from disclosure by this subtitle coming to him in the course of this employment or official duties or by reason of any examination or investigation made by, or return, report, or record made to or filed with, such department or agency or officer or employee thereof, shall be fined under title 18 of the United States Code, imprisoned not more than 1 year, or both, and shall be removed from office or employment. (g) Authority To Issue Warnings.--The Federal Government may provide advisories, alerts, and warnings to relevant companies, targeted sectors, other governmental entities, or the general public regarding potential threats to critical infrastructure as appropriate. In issuing a warning, the Federal Government shall take appropriate actions to protect from disclosure-- (1) the source of any voluntarily submitted critical infrastructure information that forms the basis for the warning; or (2) information that is proprietary, business sensitive, relates specifically to the submitting person or entity, or is otherwise not appropriately in the public domain. (h) Authority To Delegate.--The President may delegate authority to a critical infrastructure protection program, designated under section 213, to enter into a voluntary agreement to promote critical infrastructure security, including with any Information Sharing and Analysis Organization, or a plan of action as otherwise defined in section 708 of the Defense Production Act of 1950 (50 U.S.C. App. 2158). SEC. 215. [6 U.S.C. 134] NO PRIVATE RIGHT OF ACTION. Nothing in this subtitle may be construed to create a private right of action for enforcement of any provision of this Act. Subtitle C--Information Security SEC. 221. [6 U.S.C. 141] PROCEDURES FOR SHARING INFORMATION. The Secretary shall establish procedures on the use of information shared under this title that-- (1) limit the redissemination of such information to ensure that it is not used for an unauthorized purpose; (2) ensure the security and confidentiality of such information; (3) protect the constitutional and statutory rights of any individuals who are subjects of such information; and (4) provide data integrity through the timely removal and destruction of obsolete or erroneous names and information. SEC. 222. [6 U.S.C. 142] PRIVACY OFFICER. (a) Appointment and Responsibilities.--The Secretary shall appoint a senior official in the Department, who shall report directly to the Secretary, to assume primary responsibility for privacy policy, including-- (1) assuring that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information; (2) assuring that personal information contained in Privacy Act systems of records is handled in full compliance with fair information practices as set out in the Privacy Act of 1974; (3) evaluating legislative and regulatory proposals involving collection, use, and disclosure of personal information by the Federal Government; (4) conducting a privacy impact assessment of proposed rules of the Department or that of the Department on the privacy of personal information, including the type of personal information collected and the number of people affected; (5) coordinating with the Officer for Civil Rights and Civil Liberties to ensure that-- (A) programs, policies, and procedures involving civil rights, civil liberties, and privacy considerations are addressed in an integrated and comprehensive manner; and (B) Congress receives appropriate reports on such programs, policies, and procedures; and (6) preparing a report to Congress on an annual basis on activities of the Department that affect privacy, including complaints of privacy violations, implementation of the Privacy Act of 1974, internal controls, and other matters. (b) Authority To Investigate.-- (1) In general.--The senior official appointed under subsection (a) may-- (A) have access to all records, reports, audits, reviews, documents, papers, recommendations, and other materials available to the Department that relate to programs and operations with respect to the responsibilities of the senior official under this section; (B) make such investigations and reports relating to the administration of the programs and operations of the Department as are, in the senior official's judgment, necessary or desirable; (C) subject to the approval of the Secretary, require by subpoena the production, by any person other than a Federal agency, of all information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence necessary to performance of the responsibilities of the senior official under this section; and (D) administer to or take from any person an oath, affirmation, or affidavit, whenever necessary to performance of the responsibilities of the senior official under this section. (2) Enforcement of subpoenas.--Any subpoena issued under paragraph (1)(C) shall, in the case of contumacy or refusal to obey, be enforceable by order of any appropriate United States district court. (3) Effect of oaths.--Any oath, affirmation, or affidavit administered or taken under paragraph (1)(D) by or before an employee of the Privacy Office designated for that purpose by the senior official appointed under subsection (a) shall have the same force and effect as if administered or taken by or before an officer having a seal of office. (c) Supervision and Coordination.-- (1) In general.--The senior official appointed under subsection (a) shall-- (A) report to, and be under the general supervision of, the Secretary; and (B) coordinate activities with the Inspector General of the Department in order to avoid duplication of effort. (2) Coordination with the inspector general.-- (A) In general.--Except as provided in subparagraph (B), the senior official appointed under subsection (a) may investigate any matter relating to possible violations or abuse concerning the administration of any program or operation of the Department relevant to the purposes under this section. (B) Coordination.-- (i) Referral.--Before initiating any investigation described under subparagraph (A), the senior official shall refer the matter and all related complaints, allegations, and information to the Inspector General of the Department. (ii) Determinations and notifications by the inspector general.-- (I) In general.--Not later than 30 days after the receipt of a matter referred under clause (i), the Inspector General shall-- (aa) make a determination regarding whether the Inspector General intends to initiate an audit or investigation of the matter referred under clause (i); and (bb) notify the senior official of that determination. (II) Investigation not initiated.--If the Inspector General notifies the senior official under subclause (I)(bb) that the Inspector General intended to initiate an audit or investigation, but does not initiate that audit or investigation within 90 days after providing that notification, the Inspector General shall further notify the senior official that an audit or investigation was not initiated. The further notification under this subclause shall be made not later than 3 days after the end of that 90-day period. (iii) Investigation by senior official.--The senior official may investigate a matter referred under clause (i) if-- (I) the Inspector General notifies the senior official under clause (ii)(I)(bb) that the Inspector General does not intend to initiate an audit or investigation relating to that matter; or (II) the Inspector General provides a further notification under clause (ii)(II) relating to that matter. (iv) Privacy training.--Any employee of the Office of Inspector General who audits or investigates any matter referred under clause (i) shall be required to receive adequate training on privacy laws, rules, and regulations, to be provided by an entity approved by the Inspector General in consultation with the senior official appointed under subsection (a). (d) Notification to Congress on Removal.--If the Secretary removes the senior official appointed under subsection (a) or transfers that senior official to another position or location within the Department, the Secretary shall-- (1) promptly submit a written notification of the removal or transfer to Houses of Congress; and (2) include in any such notification the reasons for the removal or transfer. (e) Reports by Senior Official to Congress.--The senior official appointed under subsection (a) shall-- (1) submit reports directly to the Congress regarding performance of the responsibilities of the senior official under this section, without any prior comment or amendment by the Secretary, Deputy Secretary, or any other officer or employee of the Department or the Office of Management and Budget; and (2) inform the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives not later than-- (A) 30 days after the Secretary disapproves the senior official's request for a subpoena under subsection (b)(1)(C) or the Secretary substantively modifies the requested subpoena; or (B) 45 days after the senior official's request for a subpoena under subsection (b)(1)(C), if that subpoena has not either been approved or disapproved by the Secretary. SEC. 223. [6 U.S.C. 143] ENHANCEMENT OF NON-FEDERAL CYBERSECURITY. In carrying out the responsibilities under section 201, the Under Secretary for Intelligence and Analysis, in cooperation with the Assistant Secretary for Infrastructure Protection shall-- (1) as appropriate, provide to State and local government entities, and upon request to private entities that own or operate critical information systems-- (A) analysis and warnings related to threats to, and vulnerabilities of, critical information systems; and (B) in coordination with the Under Secretary for Emergency Preparedness and Response, crisis management support in response to threats to, or attacks on, critical information systems; and (2) as appropriate, provide technical assistance, upon request, to the private sector and other government entities, in coordination with the Under Secretary for Emergency Preparedness and Response, with respect to emergency recovery plans to respond to major failures of critical information systems. SEC. 224. [6 U.S.C. 144] NET GUARD. The Assistant Secretary for Infrastructure Protection may establish a national technology guard, to be known as ``NET Guard'', comprised of local teams of volunteers with expertise in relevant areas of science and technology, to assist local communities to respond and recover from attacks on information systems and communications networks. SEC. 225. [6 U.S.C. 145] CYBER SECURITY ENHANCEMENT ACT OF 2002. (a) Short Title.--This section may be cited as the ``Cyber Security Enhancement Act of 2002''. (b) Amendment of Sentencing Guidelines Relating to Certain Computer Crimes.-- (1) Directive to the united states sentencing commission.--Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance with this subsection, the United States Sentencing Commission shall review and, if appropriate, amend its guidelines and its policy statements applicable to persons convicted of an offense under section 1030 of title 18, United States Code. (2) Requirements.--In carrying out this subsection, the Sentencing Commission shall-- (A) ensure that the sentencing guidelines and policy statements reflect the serious nature of the offenses described in paragraph (1), the growing incidence of such offenses, and the need for an effective deterrent and appropriate punishment to prevent such offenses; (B) consider the following factors and the extent to which the guidelines may or may not account for them-- (i) the potential and actual loss resulting from the offense; (ii) the level of sophistication and planning involved in the offense; (iii) whether the offense was committed for purposes of commercial advantage or private financial benefit; (iv) whether the defendant acted with malicious intent to cause harm in committing the offense; (v) the extent to which the offense violated the privacy rights of individuals harmed; (vi) whether the offense involved a computer used by the government in furtherance of national defense, national security, or the administration of justice; (vii) whether the violation was intended to or had the effect of significantly interfering with or disrupting a critical infrastructure; and (viii) whether the violation was intended to or had the effect of creating a threat to public health or safety, or injury to any person; (C) assure reasonable consistency with other relevant directives and with other sentencing guidelines; (D) account for any additional aggravating or mitigating circumstances that might justify exceptions to the generally applicable sentencing ranges; (E) make any necessary conforming changes to the sentencing guidelines; and (F) assure that the guidelines adequately meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code. (c) Study and Report on Computer Crimes.--Not later than May 1, 2003, the United States Sentencing Commission shall submit a brief report to Congress that explains any actions taken by the Sentencing Commission in response to this section and includes any recommendations the Commission may have regarding statutory penalties for offenses under section 1030 of title 18, United States Code. (d) Emergency Disclosure Exception.-- (1) * * * * * * * * * * (2) Reporting of disclosures.--A government entity that receives a disclosure under section 2702(b) of title 18, United States Code, shall file, not later than 90 days after such disclosure, a report to the Attorney General stating the paragraph of that section under which the disclosure was made, the date of the disclosure, the entity to which the disclosure was made, the number of customers or subscribers to whom the information disclosed pertained, and the number of communications, if any, that were disclosed. The Attorney General shall publish all such reports into a single report to be submitted to Congress 1 year after the date of enactment of this Act. * * * * * * * Subtitle D--Office of Science and Technology SEC. 231. [6 U.S.C. 161] ESTABLISHMENT OF OFFICE; DIRECTOR. (a) Establishment.-- (1) In general.--There is hereby established within the Department of Justice an Office of Science and Technology (hereinafter in this title referred to as the ``Office''). (2) Authority.--The Office shall be under the general authority of the Assistant Attorney General, Office of Justice Programs, and shall be established within the National Institute of Justice. (b) Director.--The Office shall be headed by a Director, who shall be an individual appointed based on approval by the Office of Personnel Management of the executive qualifications of the individual. SEC. 232. [6 U.S.C. 162] MISSION OF OFFICE; DUTIES. (a) Mission.--The mission of the Office shall be-- (1) to serve as the national focal point for work on law enforcement technology; and (2) to carry out programs that, through the provision of equipment, training, and technical assistance, improve the safety and effectiveness of law enforcement technology and improve access to such technology by Federal, State, and local law enforcement agencies. (b) Duties.--In carrying out its mission, the Office shall have the following duties: (1) To provide recommendations and advice to the Attorney General. (2) To establish and maintain advisory groups (which shall be exempt from the provisions of the Federal Advisory Committee Act (5 U.S.C. App.)) to assess the law enforcement technology needs of Federal, State, and local law enforcement agencies. (3) To establish and maintain performance standards in accordance with the National Technology Transfer and Advancement Act of 1995 (Public Law 104-113) for, and test and evaluate law enforcement technologies that may be used by, Federal, State, and local law enforcement agencies. (4) To establish and maintain a program to certify, validate, and mark or otherwise recognize law enforcement technology products that conform to standards established and maintained by the Office in accordance with the National Technology Transfer and Advancement Act of 1995 (Public Law 104-113). The program may, at the discretion of the Office, allow for supplier's declaration of conformity with such standards. (5) To work with other entities within the Department of Justice, other Federal agencies, and the executive office of the President to establish a coordinated Federal approach on issues related to law enforcement technology. (6) To carry out research, development, testing, evaluation, and cost-benefit analyses in fields that would improve the safety, effectiveness, and efficiency of law enforcement technologies used by Federal, State, and local law enforcement agencies, including, but not limited to-- (A) weapons capable of preventing use by unauthorized persons, including personalized guns; (B) protective apparel; (C) bullet-resistant and explosion- resistant glass; (D) monitoring systems and alarm systems capable of providing precise location information; (E) wire and wireless interoperable communication technologies; (F) tools and techniques that facilitate investigative and forensic work, including computer forensics; (G) equipment for particular use in counterterrorism, including devices and technologies to disable terrorist devices; (H) guides to assist State and local law enforcement agencies; (I) DNA identification technologies; and (J) tools and techniques that facilitate investigations of computer crime. (7) To administer a program of research, development, testing, and demonstration to improve the interoperability of voice and data public safety communications. (8) To serve on the Technical Support Working Group of the Department of Defense, and on other relevant interagency panels, as requested. (9) To develop, and disseminate to State and local law enforcement agencies, technical assistance and training materials for law enforcement personnel, including prosecutors. (10) To operate the regional National Law Enforcement and Corrections Technology Centers and, to the extent necessary, establish additional centers through a competitive process. (11) To administer a program of acquisition, research, development, and dissemination of advanced investigative analysis and forensic tools to assist State and local law enforcement agencies in combating cybercrime. (12) To support research fellowships in support of its mission. (13) To serve as a clearinghouse for information on law enforcement technologies. (14) To represent the United States and State and local law enforcement agencies, as requested, in international activities concerning law enforcement technology. (15) To enter into contracts and cooperative agreements and provide grants, which may require in- kind or cash matches from the recipient, as necessary to carry out its mission. (16) To carry out other duties assigned by the Attorney General to accomplish the mission of the Office. (c) Competition Required.--Except as otherwise expressly provided by law, all research and development carried out by or through the Office shall be carried out on a competitive basis. (d) Information From Federal Agencies.--Federal agencies shall, upon request from the Office and in accordance with Federal law, provide the Office with any data, reports, or other information requested, unless compliance with such request is otherwise prohibited by law. (e) Publications.--Decisions concerning publications issued by the Office shall rest solely with the Director of the Office. (f) Transfer of Funds.--The Office may transfer funds to other Federal agencies or provide funding to non-Federal entities through grants, cooperative agreements, or contracts to carry out its duties under this section: Provided, That any such transfer or provision of funding shall be carried out in accordance with section 605 of Public Law 107-77. (g) Annual Report.--The Director of the Office shall include with the budget justification materials submitted to Congress in support of the Department of Justice budget for each fiscal year (as submitted with the budget of the President under section 1105(a) of title 31, United States Code) a report on the activities of the Office. Each such report shall include the following: (1) For the period of 5 fiscal years beginning with the fiscal year for which the budget is submitted-- (A) the Director's assessment of the needs of Federal, State, and local law enforcement agencies for assistance with respect to law enforcement technology and other matters consistent with the mission of the Office; and (B) a strategic plan for meeting such needs of such law enforcement agencies. (2) For the fiscal year preceding the fiscal year for which such budget is submitted, a description of the activities carried out by the Office and an evaluation of the extent to which those activities successfully meet the needs assessed under paragraph (1)(A) in previous reports. SEC. 233. [6 U.S.C. 163] DEFINITION OF LAW ENFORCEMENT TECHNOLOGY. For the purposes of this title, the term ``law enforcement technology'' includes investigative and forensic technologies, corrections technologies, and technologies that support the judicial process. SEC. 234. [6 U.S.C. 164] ABOLISHMENT OF OFFICE OF SCIENCE AND TECHNOLOGY OF NATIONAL INSTITUTE OF JUSTICE; TRANSFER OF FUNCTIONS. (a) Authority To Transfer Functions.--The Attorney General may transfer to the Office any other program or activity of the Department of Justice that the Attorney General, in consultation with the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, determines to be consistent with the mission of the Office. (b) Transfer of Personnel and Assets.--With respect to any function, power, or duty, or any program or activity, that is established in the Office, those employees and assets of the element of the Department of Justice from which the transfer is made that the Attorney General determines are needed to perform that function, power, or duty, or for that program or activity, as the case may be, shall be transferred to the Office: Provided, That any such transfer shall be carried out in accordance with section 605 of Public Law 107-77. (c) Report on Implementation.--Not later than 1 year after the date of the enactment of this Act, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the implementation of this title. The report shall-- (1) provide an accounting of the amounts and sources of funding available to the Office to carry out its mission under existing authorizations and appropriations, and set forth the future funding needs of the Office; and (2) include such other information and recommendations as the Attorney General considers appropriate. SEC. 235. [6 U.S.C. 165] NATIONAL LAW ENFORCEMENT AND CORRECTIONS TECHNOLOGY CENTERS. (a) In General.--The Director of the Office shall operate and support National Law Enforcement and Corrections Technology Centers (hereinafter in this section referred to as ``Centers'') and, to the extent necessary, establish new centers through a merit-based, competitive process. (b) Purpose of Centers.--The purpose of the Centers shall be to-- (1) support research and development of law enforcement technology; (2) support the transfer and implementation of technology; (3) assist in the development and dissemination of guidelines and technological standards; and (4) provide technology assistance, information, and support for law enforcement, corrections, and criminal justice purposes. (c) Annual Meeting.--Each year, the Director shall convene a meeting of the Centers in order to foster collaboration and communication between Center participants. (d) Report.--Not later than 12 months after the date of the enactment of this Act, the Director shall transmit to the Congress a report assessing the effectiveness of the existing system of Centers and identify the number of Centers necessary to meet the technology needs of Federal, State, and local law enforcement in the United States. * * * * * * * TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY SEC. 301. [6 U.S.C. 181] UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY. There shall be in the Department a Directorate of Science and Technology headed by an Under Secretary for Science and Technology. SEC. 302. [6 U.S.C. 182] RESPONSIBILITIES AND AUTHORITIES OF THE UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY. The Secretary, acting through the Under Secretary for Science and Technology, shall have the responsibility for-- (1) advising the Secretary regarding research and development efforts and priorities in support of the Department's missions; (2) developing, in consultation with other appropriate executive agencies, a national policy and strategic plan for, identifying priorities, goals, objectives and policies for, and coordinating the Federal Government's civilian efforts to identify and develop countermeasures to chemical, biological,, \1\ and other emerging terrorist threats, including the development of comprehensive, research-based definable goals for such efforts and development of annual measurable objectives and specific targets to accomplish and evaluate the goals for such efforts; --------------------------------------------------------------------------- \1\ Two commas so in law. See section 501(b)(2)(A) of Public Law 109-347 (120 Stat. 1935). --------------------------------------------------------------------------- (3) supporting the Under Secretary for Intelligence and Analysis and the Assistant Secretary for Infrastructure Protection, by assessing and testing homeland security vulnerabilities and possible threats; (4) conducting basic and applied research, development, demonstration, testing, and evaluation activities that are relevant to any or all elements of the Department, through both intramural and extramural programs, except that such responsibility does not extend to human health-related research and development activities; (5) establishing priorities for, directing, funding, and conducting national research, development, test and evaluation, and procurement of technology and systems for-- (A) preventing the importation of chemical, biological,, \1\ and related weapons and material; and --------------------------------------------------------------------------- \1\ Two commas so in law. See section 501(b)(2)(B) of Public Law 109-347 (120 Stat. 1935). --------------------------------------------------------------------------- (B) detecting, preventing, protecting against, and responding to terrorist attacks; (6) establishing a system for transferring homeland security developments or technologies to Federal, State, local government, and private sector entities; (7) entering into work agreements, joint sponsorships, contracts, or any other agreements with the Department of Energy regarding the use of the national laboratories or sites and support of the science and technology base at those facilities; (8) collaborating with the Secretary of Agriculture and the Attorney General as provided in section 212 of the Agricultural Bioterrorism Protection Act of 2002 (7 U.S.C. 8401), as amended by section 1709(b); (9) collaborating with the Secretary of Health and Human Services and the Attorney General in determining any new biological agents and toxins that shall be listed as ``select agents'' in Appendix A of part 72 of title 42, Code of Federal Regulations, pursuant to section 351A of the Public Health Service Act (42 U.S.C. 262a); (10) supporting United States leadership in science and technology; (11) establishing and administering the primary research and development activities of the Department, including the long-term research and development needs and capabilities for all elements of the Department; (12) coordinating and integrating all research, development, demonstration, testing, and evaluation activities of the Department; (13) coordinating with other appropriate executive agencies in developing and carrying out the science and technology agenda of the Department to reduce duplication and identify unmet needs; and (14) developing and overseeing the administration of guidelines for merit review of research and development projects throughout the Department, and for the dissemination of research conducted or sponsored by the Department. SEC. 303. [6 U.S.C. 183] FUNCTIONS TRANSFERRED. In accordance with title XV, there shall be transferred to the Secretary the functions, personnel, assets, and liabilities of the following entities: (1) The following programs and activities of the Department of Energy, including the functions of the Secretary of Energy relating thereto (but not including programs and activities relating to the strategic nuclear defense posture of the United States): (A) The chemical and biological national security and supporting programs and activities of the nonproliferation and verification research and development program. (B) The nuclear smuggling programs and activities within the proliferation detection program of the nonproliferation and verification research and development program. The programs and activities described in this subparagraph may be designated by the President either for transfer to the Department or for joint operation by the Secretary and the Secretary of Energy. (C) The nuclear assessment program and activities of the assessment, detection, and cooperation program of the international materials protection and cooperation program. (D) Such life sciences activities of the biological and environmental research program related to microbial pathogens as may be designated by the President for transfer to the Department. (E) The Environmental Measurements Laboratory. (F) The advanced scientific computing research program and activities at Lawrence Livermore National Laboratory. (2) The National Bio-Weapons Defense Analysis Center of the Department of Defense, including the functions of the Secretary of Defense related thereto. SEC. 304. [6 U.S.C. 184] CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES. (a) In General.--With respect to civilian human health- related research and development activities relating to countermeasures for chemical, biological, radiological, and nuclear and other emerging terrorist threats carried out by the Department of Health and Human Services (including the Public Health Service), the Secretary of Health and Human Services shall set priorities, goals, objectives, and policies and develop a coordinated strategy for such activities in collaboration with the Secretary of Homeland Security to ensure consistency with the national policy and strategic plan developed pursuant to section 302(2). (b) Evaluation of Progress.--In carrying out subsection (a), the Secretary of Health and Human Services shall collaborate with the Secretary in developing specific benchmarks and outcome measurements for evaluating progress toward achieving the priorities and goals described in such subsection. * * * * * * * SEC. 305. [6 U.S.C. 185] FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTERS. The Secretary, acting through the Under Secretary for Science and Technology, shall have the authority to establish or contract with 1 or more federally funded research and development centers to provide independent analysis of homeland security issues, or to carry out other responsibilities under this Act, including coordinating and integrating both the extramural and intramural programs described in section 308. SEC. 306. [6 U.S.C. 186] MISCELLANEOUS PROVISIONS. (a) Classification.--To the greatest extent practicable, research conducted or supported by the Department shall be unclassified. (b) Construction.--Nothing in this title shall be construed to preclude any Under Secretary of the Department from carrying out research, development, demonstration, or deployment activities, as long as such activities are coordinated through the Under Secretary for Science and Technology. (c) Regulations.--The Secretary, acting through the Under Secretary for Science and Technology, may issue necessary regulations with respect to research, development, demonstration, testing, and evaluation activities of the Department, including the conducting, funding, and reviewing of such activities. (d) Notification of Presidential Life Sciences Designations.--Not later than 60 days before effecting any transfer of Department of Energy life sciences activities pursuant to section 303(1)(D) of this Act, the President shall notify the appropriate congressional committees of the proposed transfer and shall include the reasons for the transfer and a description of the effect of the transfer on the activities of the Department of Energy. SEC. 307. [6 U.S.C. 187] HOMELAND SECURITY ADVANCED RESEARCH PROJECTS AGENCY. (a) Definitions.--In this section: (1) Fund.--The term ``Fund'' means the Acceleration Fund for Research and Development of Homeland Security Technologies established in subsection (c). (2) Homeland security research.--The term ``homeland security research'' means research relevant to the detection of, prevention of, protection against, response to, attribution of, and recovery from homeland security threats, particularly acts of terrorism. (3) HSARPA.--The term ``HSARPA'' means the Homeland Security Advanced Research Projects Agency established in subsection (b). (4) Under secretary.--The term ``Under Secretary'' means the Under Secretary for Science and Technology. (b) Homeland Security Advanced Research Projects Agency.-- (1) Establishment.--There is established the Homeland Security Advanced Research Projects Agency. (2) Director.--HSARPA shall be headed by a Director, who shall be appointed by the Secretary. The Director shall report to the Under Secretary. (3) Responsibilities.--The Director shall administer the Fund to award competitive, merit- reviewed grants, cooperative agreements or contracts to public or private entities, including businesses, federally funded research and development centers, and universities. The Director shall administer the Fund to-- (A) support basic and applied homeland security research to promote revolutionary changes in technologies that would promote homeland security; (B) advance the development, testing and evaluation, and deployment of critical homeland security technologies; and (C) accelerate the prototyping and deployment of technologies that would address homeland security vulnerabilities. (4) Targeted competitions.--The Director may solicit proposals to address specific vulnerabilities identified by the Director. (5) Coordination.--The Director shall ensure that the activities of HSARPA are coordinated with those of other relevant research agencies, and may run projects jointly with other agencies. (6) Personnel.--In hiring personnel for HSARPA, the Secretary shall have the hiring and management authorities described in section 1101 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note; Public Law 105-261). The term of appointments for employees under subsection (c)(1) of that section may not exceed 5 years before the granting of any extension under subsection (c)(2) of that section. (7) Demonstrations.--The Director, periodically, shall hold homeland security technology demonstrations to improve contact among technology developers, vendors and acquisition personnel. (c) Fund.-- (1) Establishment.--There is established the Acceleration Fund for Research and Development of Homeland Security Technologies, which shall be administered by the Director of HSARPA. (2) Authorization of appropriations.--There are authorized to be appropriated $500,000,000 to the Fund for fiscal year 2003 and such sums as may be necessary thereafter. (3) Coast guard.--Of the funds authorized to be appropriated under paragraph (2), not less than 10 percent of such funds for each fiscal year through fiscal year 2005 shall be authorized only for the Under Secretary, through joint agreement with the Commandant of the Coast Guard, to carry out research and development of improved ports, waterways and coastal security surveillance and perimeter protection capabilities for the purpose of minimizing the possibility that Coast Guard cutters, aircraft, helicopters, and personnel will be diverted from non- homeland security missions to the ports, waterways and coastal security mission. SEC. 308. [6 U.S.C. 188] CONDUCT OF RESEARCH, DEVELOPMENT, DEMONSTRATION, TESTING AND EVALUATION. (a) In General.--The Secretary, acting through the Under Secretary for Science and Technology, shall carry out the responsibilities under section 302(4) through both extramural and intramural programs. (b) Extramural Programs.-- (1) In general.--The Secretary, acting through the Under Secretary for Science and Technology, shall operate extramural research, development, demonstration, testing, and evaluation programs so as to-- (A) ensure that colleges, universities, private research institutes, and companies (and consortia thereof) from as many areas of the United States as practicable participate; (B) ensure that the research funded is of high quality, as determined through merit review processes developed under section 302(14); and (C) distribute funds through grants, cooperative agreements, and contracts. (2) University-based centers for homeland security.-- (A) Designation.--The Secretary, acting through the Under Secretary for Science and Technology, shall designate a university-based center or several university-based centers for homeland security. The purpose of the center or these centers shall be to establish a coordinated, university-based system to enhance the Nation's homeland security. (B) Criteria for designation.--Criteria for the designation of colleges or universities as a center for homeland security, shall include, but are not limited to, demonstrated expertise in-- (i) The training of first responders. (ii) Responding to incidents involving weapons of mass destruction and biological warfare. (iii) Emergency and diagnostic medical services. (iv) Chemical, biological, radiological, and nuclear countermeasures or detection. (v) Animal and plant health and diagnostics. (vi) Food safety. (vii) Water and wastewater operations. (viii) Port and waterway security. (ix) Multi-modal transportation. (x) Information security and information engineering. (xi) Engineering. (xii) Educational outreach and technical assistance. (xiii) Border transportation and security. (xiv) The public policy implications and public dissemination of homeland security related research and development. (C) Discretion of secretary.--To the extent that exercising such discretion is in the interest of homeland security, and with respect to the designation of any given university- based center for homeland security, the Secretary may except certain criteria as specified in section 308(b)(2)(B) and consider additional criteria beyond those specified in section 308(b)(2)(B). Upon designation of a university-based center for homeland security, the Secretary shall that day publish in the Federal Register the criteria that were excepted or added in the selection process and the justification for the set of criteria that were used for that designation. (D) Report to congress.--The Secretary shall report annually, from the date of enactment, to Congress concerning the implementation of this section. That report shall indicate which center or centers have been designated and how the designation or designations enhance homeland security, as well as report any decisions to revoke or modify such designations. (E) Authorization of appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this paragraph. (c) Intramural Programs.-- (1) Consultation.--In carrying out the duties under section 302, the Secretary, acting through the Under Secretary for Science and Technology, may draw upon the expertise of any laboratory of the Federal Government, whether operated by a contractor or the Government. (2) Laboratories.--The Secretary, acting through the Under Secretary for Science and Technology, may establish a headquarters laboratory for the Department at any laboratory or site and may establish additional laboratory units at other laboratories or sites. (3) Criteria for headquarters laboratory.--If the Secretary chooses to establish a headquarters laboratory pursuant to paragraph (2), then the Secretary shall do the following: (A) Establish criteria for the selection of the headquarters laboratory in consultation with the National Academy of Sciences, appropriate Federal agencies, and other experts. (B) Publish the criteria in the Federal Register. (C) Evaluate all appropriate laboratories or sites against the criteria. (D) Select a laboratory or site on the basis of the criteria. (E) Report to the appropriate congressional committees on which laboratory was selected, how the selected laboratory meets the published criteria, and what duties the headquarters laboratory shall perform. (4) Limitation on operation of laboratories.--No laboratory shall begin operating as the headquarters laboratory of the Department until at least 30 days after the transmittal of the report required by paragraph (3)(E). SEC. 309. [6 U.S.C. 189] UTILIZATION OF DEPARTMENT OF ENERGY NATIONAL LABORATORIES AND SITES IN SUPPORT OF HOMELAND SECURITY ACTIVITIES. (a) Authority to Utilize National Laboratories and Sites.-- (1) In general.--In carrying out the missions of the Department, the Secretary may utilize the Department of Energy national laboratories and sites through any 1 or more of the following methods, as the Secretary considers appropriate: (A) A joint sponsorship arrangement referred to in subsection (b). (B) A direct contract between the Department and the applicable Department of Energy laboratory or site, subject to subsection (c). (C) Any ``work for others'' basis made available by that laboratory or site. (D) Any other method provided by law. (2) Acceptance and Performance by Labs and Sites.-- Notwithstanding any other law governing the administration, mission, use, or operations of any of the Department of Energy national laboratories and sites, such laboratories and sites are authorized to accept and perform work for the Secretary, consistent with resources provided, and perform such work on an equal basis to other missions at the laboratory and not on a noninterference basis with other missions of such laboratory or site. (b) Joint Sponsorship Arrangements.-- (1) Laboratories.--The Department may be a joint sponsor, under a multiple agency sponsorship arrangement with the Department of Energy, of 1 or more Department of Energy national laboratories in the performance of work. (2) Sites.--The Department may be a joint sponsor of a Department of Energy site in the performance of work as if such site were a federally funded research and development center and the work were performed under a multiple agency sponsorship arrangement with the Department. (3) Primary sponsor.--The Department of Energy shall be the primary sponsor under a multiple agency sponsorship arrangement referred to in paragraph (1) or (2). (4) Lead agent.--The Secretary of Energy shall act as the lead agent in coordinating the formation and performance of a joint sponsorship arrangement under this subsection between the Department and a Department of Energy national laboratory or site. (5) Federal acquisition regulation.--Any work performed by a Department of Energy national laboratory or site under a joint sponsorship arrangement under this subsection shall comply with the policy on the use of federally funded research and development centers under the Federal Acquisition Regulations. (6) Funding.--The Department shall provide funds for work at the Department of Energy national laboratories or sites, as the case may be, under a joint sponsorship arrangement under this subsection under the same terms and conditions as apply to the primary sponsor of such national laboratory under section 303(b)(1)(C) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(b)(1)(C)) or of such site to the extent such section applies to such site as a federally funded research and development center by reason of this subsection. (c) Separate Contracting.--To the extent that programs or activities transferred by this Act from the Department of Energy to the Department of Homeland Security are being carried out through direct contracts with the operator of a national laboratory or site of the Department of Energy, the Secretary of Homeland Security and the Secretary of Energy shall ensure that direct contracts for such programs and activities between the Department of Homeland Security and such operator are separate from the direct contracts of the Department of Energy with such operator. (d) Authority With Respect to Cooperative Research and Development Agreements and Licensing Agreements.--In connection with any utilization of the Department of Energy national laboratories and sites under this section, the Secretary may permit the director of any such national laboratory or site to enter into cooperative research and development agreements or to negotiate licensing agreements with any person, any agency or instrumentality, of the United States, any unit of State or local government, and any other entity under the authority granted by section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a). Technology may be transferred to a non-Federal party to such an agreement consistent with the provisions of sections 11 and 12 of that Act (15 U.S.C. 3710, 3710a). (e) Reimbursement of Costs.--In the case of an activity carried out by the operator of a Department of Energy national laboratory or site in connection with any utilization of such laboratory or site under this section, the Department of Homeland Security shall reimburse the Department of Energy for costs of such activity through a method under which the Secretary of Energy waives any requirement for the Department of Homeland Security to pay administrative charges or personnel costs of the Department of Energy or its contractors in excess of the amount that the Secretary of Energy pays for an activity carried out by such contractor and paid for by the Department of Energy. (f) Laboratory Directed Research and Development by the Department of Energy.--No funds authorized to be appropriated or otherwise made available to the Department in any fiscal year may be obligated or expended for laboratory directed research and development activities carried out by the Department of Energy unless such activities support the missions of the Department of Homeland Security. (g) Office for National Laboratories.--There is established within the Directorate of Science and Technology an Office for National Laboratories, which shall be responsible for the coordination and utilization of the Department of Energy national laboratories and sites under this section in a manner to create a networked laboratory system for the purpose of supporting the missions of the Department. (h) Department of Energy Coordination on Homeland Security Related Research.--The Secretary of Energy shall ensure that any research, development, test, and evaluation activities conducted within the Department of Energy that are directly or indirectly related to homeland security are fully coordinated with the Secretary to minimize duplication of effort and maximize the effective application of Federal budget resources. SEC. 310. [6 U.S.C. 190] TRANSFER OF PLUM ISLAND ANIMAL DISEASE CENTER, DEPARTMENT OF AGRICULTURE. (a) In General.--In accordance with title XV, the Secretary of Agriculture shall transfer to the Secretary of Homeland Security the Plum Island Animal Disease Center of the Department of Agriculture, including the assets and liabilities of the Center. (b) Continued Department of Agriculture Access.--On completion of the transfer of the Plum Island Animal Disease Center under subsection (a), the Secretary of Homeland Security and the Secretary of Agriculture shall enter into an agreement to ensure that the Department of Agriculture is able to carry out research, diagnostic, and other activities of the Department of Agriculture at the Center. (c) Direction of Activities.--The Secretary of Agriculture shall continue to direct the research, diagnostic, and other activities of the Department of Agriculture at the Center described in subsection (b). (d) Notification.-- (1) In general.--At least 180 days before any change in the biosafety level at the Plum Island Animal Disease Center, the President shall notify Congress of the change and describe the reasons for the change. (2) Limitation.--No change described in paragraph (1) may be made earlier than 180 days after the completion of the transition period (as defined in section 1501). SEC. 311. [6 U.S.C. 191] HOMELAND SECURITY SCIENCE AND TECHNOLOGY ADVISORY COMMITTEE. (a) Establishment.--There is established within the Department a Homeland Security Science and Technology Advisory Committee (in this section referred to as the ``Advisory Committee''). The Advisory Committee shall make recommendations with respect to the activities of the Under Secretary for Science and Technology, including identifying research areas of potential importance to the security of the Nation. (b) Membership.-- (1) Appointment.--The Advisory Committee shall consist of 20 members appointed by the Under Secretary for Science and Technology, which shall include emergency first-responders or representatives of organizations or associations of emergency first- responders. The Advisory Committee shall also include representatives of citizen groups, including economically disadvantaged communities. The individuals appointed as members of the Advisory Committee-- (A) shall be eminent in fields such as emergency response, research, engineering, new product development, business, and management consulting; (B) shall be selected solely on the basis of established records of distinguished service; (C) shall not be employees of the Federal Government; and (D) shall be so selected as to provide representation of a cross-section of the research, development, demonstration, and deployment activities supported by the Under Secretary for Science and Technology. (2) National research council.--The Under Secretary for Science and Technology may enter into an arrangement for the National Research Council to select members of the Advisory Committee, but only if the panel used by the National Research Council reflects the representation described in paragraph (1). (c) Terms of Office.-- (1) In general.--Except as otherwise provided in this subsection, the term of office of each member of the Advisory Committee shall be 3 years. (2) Original appointments.--The original members of the Advisory Committee shall be appointed to three classes. One class of six shall have a term of 1 year, one class of seven a term of 2 years, and one class of seven a term of 3 years. (3) Vacancies.--A member appointed to fill a vacancy occurring before the expiration of the term for which the member's predecessor was appointed shall be appointed for the remainder of such term. (d) Eligibility.--A person who has completed two consecutive full terms of service on the Advisory Committee shall thereafter be ineligible for appointment during the 1- year period following the expiration of the second such term. (e) Meetings.--The Advisory Committee shall meet at least quarterly at the call of the Chair or whenever one-third of the members so request in writing. Each member shall be given appropriate notice of the call of each meeting, whenever possible not less than 15 days before the meeting. (f) Quorum.--A majority of the members of the Advisory Committee not having a conflict of interest in the matter being considered by the Advisory Committee shall constitute a quorum. (g) Conflict of Interest Rules.--The Advisory Committee shall establish rules for determining when 1 of its members has a conflict of interest in a matter being considered by the Advisory Committee. (h) Reports.-- (1) Annual report.--The Advisory Committee shall render an annual report to the Under Secretary for Science and Technology for transmittal to Congress on or before January 31 of each year. Such report shall describe the activities and recommendations of the Advisory Committee during the previous year. (2) Additional reports.--The Advisory Committee may render to the Under Secretary for transmittal to Congress such additional reports on specific policy matters as it considers appropriate. (i) Federal Advisory Committee Act Exemption.--Section 14 of the Federal Advisory Committee Act shall not apply to the Advisory Committee. (j) Termination.--The Department of Homeland Security Science and Technology Advisory Committee shall terminate on December 31, 2008. SEC. 312. [6 U.S.C. 192] HOMELAND SECURITY INSTITUTE. (a) Establishment.--The Secretary shall establish a federally funded research and development center to be known as the ``Homeland Security Institute'' (in this section referred to as the ``Institute''). (b) Administration.--The Institute shall be administered as a separate entity by the Secretary. (c) Duties.--The duties of the Institute shall be determined by the Secretary, and may include the following: (1) Systems analysis, risk analysis, and simulation and modeling to determine the vulnerabilities of the Nation's critical infrastructures and the effectiveness of the systems deployed to reduce those vulnerabilities. (2) Economic and policy analysis to assess the distributed costs and benefits of alternative approaches to enhancing security. (3) Evaluation of the effectiveness of measures deployed to enhance the security of institutions, facilities, and infrastructure that may be terrorist targets. (4) Identification of instances when common standards and protocols could improve the interoperability and effective utilization of tools developed for field operators and first responders. (5) Assistance for Federal agencies and departments in establishing testbeds to evaluate the effectiveness of technologies under development and to assess the appropriateness of such technologies for deployment. (6) Design of metrics and use of those metrics to evaluate the effectiveness of homeland security programs throughout the Federal Government, including all national laboratories. (7) Design of and support for the conduct of homeland security-related exercises and simulations. (8) Creation of strategic technology development plans to reduce vulnerabilities in the Nation's critical infrastructure and key resources. (d) Consultation on Institute Activities.--In carrying out the duties described in subsection (c), the Institute shall consult widely with representatives from private industry, institutions of higher education, nonprofit institutions, other Government agencies, and federally funded research and development centers. (e) Use of Centers.--The Institute shall utilize the capabilities of the National Infrastructure Simulation and Analysis Center. (f) Annual Reports.--The Institute shall transmit to the Secretary and Congress an annual report on the activities of the Institute under this section. (g) Termination.--The Homeland Security Institute shall terminate 5 years after its establishment. SEC. 313. [6 U.S.C. 193] TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE AND SUPPORT INNOVATIVE SOLUTIONS TO ENHANCE HOMELAND SECURITY. (a) Establishment of Program.--The Secretary, acting through the Under Secretary for Science and Technology, shall establish and promote a program to encourage technological innovation in facilitating the mission of the Department (as described in section 101). (b) Elements of Program.--The program described in subsection (a) shall include the following components: (1) The establishment of a centralized Federal clearinghouse for information relating to technologies that would further the mission of the Department for dissemination, as appropriate, to Federal, State, and local government and private sector entities for additional review, purchase, or use. (2) The issuance of announcements seeking unique and innovative technologies to advance the mission of the Department. (3) The establishment of a technical assistance team to assist in screening, as appropriate, proposals submitted to the Secretary (except as provided in subsection (c)(2)) to assess the feasibility, scientific and technical merits, and estimated cost of such proposals, as appropriate. (4) The provision of guidance, recommendations, and technical assistance, as appropriate, to assist Federal, State, and local government and private sector efforts to evaluate and implement the use of technologies described in paragraph (1) or (2). (5) The provision of information for persons seeking guidance on how to pursue proposals to develop or deploy technologies that would enhance homeland security, including information relating to Federal funding, regulation, or acquisition. (c) Miscellaneous Provisions.-- (1) In general.--Nothing in this section shall be construed as authorizing the Secretary or the technical assistance team established under subsection (b)(3) to set standards for technology to be used by the Department, any other executive agency, any State or local government entity, or any private sector entity. (2) Certain proposals.--The technical assistance team established under subsection (b)(3) shall not consider or evaluate proposals submitted in response to a solicitation for offers for a pending procurement or for a specific agency requirement. (3) Coordination.--In carrying out this section, the Secretary shall coordinate with the Technical Support Working Group (organized under the April 1982 National Security Decision Directive Numbered 30). SEC. 314. OFFICE FOR INTEROPERABILITY AND COMPATIBILITY. (a) Clarification of Responsibilities.--The Director of the Office for Interoperability and Compatibility shall-- (1) assist the Secretary in developing and implementing the science and technology aspects of the program described in subparagraphs (D), (E), (F), and (G) of section 7303(a)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(a)(1)); (2) in coordination with the Federal Communications Commission, the National Institute of Standards and Technology, and other Federal departments and agencies with responsibility for standards, support the creation of national voluntary consensus standards for interoperable emergency communications; (3) establish a comprehensive research, development, testing, and evaluation program for improving interoperable emergency communications; (4) establish, in coordination with the Director for Emergency Communications, requirements for interoperable emergency communications capabilities, which shall be nonproprietary where standards for such capabilities exist, for all public safety radio and data communications systems and equipment purchased using homeland security assistance administered by the Department, excluding any alert and warning device, technology, or system; (5) carry out the Department's responsibilities and authorities relating to research, development, testing, evaluation, or standards-related elements of the SAFECOM Program; (6) evaluate and assess new technology in real- world environments to achieve interoperable emergency communications capabilities; (7) encourage more efficient use of existing resources, including equipment, to achieve interoperable emergency communications capabilities; (8) test public safety communications systems that are less prone to failure, support new nonvoice services, use spectrum more efficiently, and cost less than existing systems; (9) coordinate with the private sector to develop solutions to improve emergency communications capabilities and achieve interoperable emergency communications capabilities; and (10) conduct pilot projects, in coordination with the Director for Emergency Communications, to test and demonstrate technologies, including data and video, that enhance-- (A) the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man- made disasters; and (B) interoperable emergency communications capabilities. (b) Coordination.--The Director of the Office for Interoperability and Compatibility shall coordinate with the Director for Emergency Communications with respect to the SAFECOM program. (c) Sufficiency of Resources.--The Secretary shall provide the Office for Interoperability and Compatibility the resources and staff necessary to carry out the responsibilities under this section. SEC. 315. EMERGENCY COMMUNICATIONS INTEROPERABILITY RESEARCH AND DEVELOPMENT. (a) In General.--The Under Secretary for Science and Technology, acting through the Director of the Office for Interoperability and Compatibility, shall establish a comprehensive research and development program to support and promote-- (1) the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters; and (2) interoperable emergency communications capabilities among emergency response providers and relevant government officials, including by-- (A) supporting research on a competitive basis, including through the Directorate of Science and Technology and Homeland Security Advanced Research Projects Agency; and (B) considering the establishment of a Center of Excellence under the Department of Homeland Security Centers of Excellence Program focused on improving emergency response providers' communication capabilities. (b) Purposes.--The purposes of the program established under subsection (a) include-- (1) supporting research, development, testing, and evaluation on emergency communication capabilities; (2) understanding the strengths and weaknesses of the public safety communications systems in use; (3) examining how current and emerging technology can make emergency response providers more effective, and how Federal, State, local, and tribal government agencies can use this technology in a coherent and cost-effective manner; (4) investigating technologies that could lead to long-term advancements in emergency communications capabilities and supporting research on advanced technologies and potential systemic changes to dramatically improve emergency communications; and (5) evaluating and validating advanced technology concepts, and facilitating the development and deployment of interoperable emergency communication capabilities. (c) Definitions.--For purposes of this section, the term ``interoperable'', with respect to emergency communications, has the meaning given the term in section 1808. SEC. 316. [6 U.S.C. 195B] NATIONAL BIOSURVEILLANCE INTEGRATION CENTER. (a) Establishment.--The Secretary shall establish, operate, and maintain a National Biosurveillance Integration Center (referred to in this section as the ``NBIC''), which shall be headed by a Directing Officer, under an office or directorate of the Department that is in existence as of the date of the enactment of this section. (b) Primary Mission.--The primary mission of the NBIC is to-- (1) enhance the capability of the Federal Government to-- (A) rapidly identify, characterize, localize, and track a biological event of national concern by integrating and analyzing data relating to human health, animal, plant, food, and environmental monitoring systems (both national and international); and (B) disseminate alerts and other information to Member Agencies and, in coordination with (and where possible through) Member Agencies, to agencies of State, local, and tribal governments, as appropriate, to enhance the ability of such agencies to respond to a biological event of national concern; and (2) oversee development and operation of the National Biosurveillance Integration System. (c) Requirements.--The NBIC shall detect, as early as possible, a biological event of national concern that presents a risk to the United States or the infrastructure or key assets of the United States, including by-- (1) consolidating data from all relevant surveillance systems maintained by Member Agencies to detect biological events of national concern across human, animal, and plant species; (2) seeking private sources of surveillance, both foreign and domestic, when such sources would enhance coverage of critical surveillance gaps; (3) using an information technology system that uses the best available statistical and other analytical tools to identify and characterize biological events of national concern in as close to real-time as is practicable; (4) providing the infrastructure for such integration, including information technology systems and space, and support for personnel from Member Agencies with sufficient expertise to enable analysis and interpretation of data; (5) working with Member Agencies to create information technology systems that use the minimum amount of patient data necessary and consider patient confidentiality and privacy issues at all stages of development and apprise the Privacy Officer of such efforts; and (6) alerting Member Agencies and, in coordination with (and where possible through) Member Agencies, public health agencies of State, local, and tribal governments regarding any incident that could develop into a biological event of national concern. (d) Responsibilities of the Directing Officer of the NBIC.-- (1) In general.--The Directing Officer of the NBIC shall-- (A) on an ongoing basis, monitor the availability and appropriateness of surveillance systems used by the NBIC and those systems that could enhance biological situational awareness or the overall performance of the NBIC; (B) on an ongoing basis, review and seek to improve the statistical and other analytical methods used by the NBIC; (C) receive and consider other relevant homeland security information, as appropriate; and (D) provide technical assistance, as appropriate, to all Federal, regional, State, local, and tribal government entities and private sector entities that contribute data relevant to the operation of the NBIC. (2) Assessments.--The Directing Officer of the NBIC shall-- (A) on an ongoing basis, evaluate available data for evidence of a biological event of national concern; and (B) integrate homeland security information with NBIC data to provide overall situational awareness and determine whether a biological event of national concern has occurred. (3) Information sharing.-- (A) In general.--The Directing Officer of the NBIC shall-- (i) establish a method of real-time communication with the National Operations Center; (ii) in the event that a biological event of national concern is detected, notify the Secretary and disseminate results of NBIC assessments relating to that biological event of national concern to appropriate Federal response entities and, in coordination with relevant Member Agencies, regional, State, local, and tribal governmental response entities in a timely manner; (iii) provide any report on NBIC assessments to Member Agencies and, in coordination with relevant Member Agencies, any affected regional, State, local, or tribal government, and any private sector entity considered appropriate that may enhance the mission of such Member Agencies, governments, or entities or the ability of the Nation to respond to biological events of national concern; and (iv) share NBIC incident or situational awareness reports, and other relevant information, consistent with the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485) and any policies, guidelines, procedures, instructions, or standards established under that section. (B) Consultation.--The Directing Officer of the NBIC shall implement the activities described in subparagraph (A) consistent with the policies, guidelines, procedures, instructions, or standards established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485) and in consultation with the Director of National Intelligence, the Under Secretary for Intelligence and Analysis, and other offices or agencies of the Federal Government, as appropriate. (e) Responsibilities of the NBIC Member Agencies.-- (1) In general.--Each Member Agency shall-- (A) use its best efforts to integrate biosurveillance information into the NBIC, with the goal of promoting information sharing between Federal, State, local, and tribal governments to detect biological events of national concern; (B) provide timely information to assist the NBIC in maintaining biological situational awareness for accurate detection and response purposes; (C) enable the NBIC to receive and use biosurveillance information from member agencies to carry out its requirements under subsection (c); (D) connect the biosurveillance data systems of that Member Agency to the NBIC data system under mutually agreed protocols that are consistent with subsection (c)(5); (E) participate in the formation of strategy and policy for the operation of the NBIC and its information sharing; (F) provide personnel to the NBIC under an interagency personnel agreement and consider the qualifications of such personnel necessary to provide human, animal, and environmental data analysis and interpretation support to the NBIC; and (G) retain responsibility for the surveillance and intelligence systems of that department or agency, if applicable. (f) Administrative Authorities.-- (1) Hiring of experts.--The Directing Officer of the NBIC shall hire individuals with the necessary expertise to develop and operate the NBIC. (2) Detail of personnel.--Upon the request of the Directing Officer of the NBIC, the head of any Federal department or agency may detail, on a reimbursable basis, any of the personnel of that department or agency to the Department to assist the NBIC in carrying out this section. (g) NBIC Interagency Working Group.--The Directing Officer of the NBIC shall-- (1) establish an interagency working group to facilitate interagency cooperation and to advise the Directing Officer of the NBIC regarding recommendations to enhance the biosurveillance capabilities of the Department; and (2) invite Member Agencies to serve on that working group. (h) Relationship to Other Departments and Agencies.--The authority of the Directing Officer of the NBIC under this section shall not affect any authority or responsibility of any other department or agency of the Federal Government with respect to biosurveillance activities under any program administered by that department or agency. (i) Authorization of Appropriations.--There are authorized to be appropriated such sums as are necessary to carry out this section. (j) Definitions.--In this section: (1) The terms ``biological agent'' and ``toxin'' have the meanings given those terms in section 178 of title 18, United States Code. (2) The term ``biological event of national concern'' means-- (A) an act of terrorism involving a biological agent or toxin; or (B) a naturally occurring outbreak of an infectious disease that may result in a national epidemic. (3) The term ``homeland security information'' has the meaning given that term in section 892. (4) The term ``Member Agency'' means any Federal department or agency that, at the discretion of the head of that department or agency, has entered a memorandum of understanding regarding participation in the NBIC. (5) The term ``Privacy Officer'' means the Privacy Officer appointed under section 222. SEC. 317. [6 U.S.C. 195C] PROMOTING ANTITERRORISM THROUGH INTERNATIONAL COOPERATION PROGRAM. (a) Definitions.--In this section: (1) Director.--The term ``Director'' means the Director selected under subsection (b)(2). (2) International cooperative activity.--The term ``international cooperative activity'' includes-- (A) coordinated research projects, joint research projects, or joint ventures; (B) joint studies or technical demonstrations; (C) coordinated field exercises, scientific seminars, conferences, symposia, and workshops; (D) training of scientists and engineers; (E) visits and exchanges of scientists, engineers, or other appropriate personnel; (F) exchanges or sharing of scientific and technological information; and (G) joint use of laboratory facilities and equipment. (b) Science and Technology Homeland Security International Cooperative Programs Office.-- (1) Establishment.--The Under Secretary shall establish the Science and Technology Homeland Security International Cooperative Programs Office. (2) Director.--The Office shall be headed by a Director, who-- (A) shall be selected, in consultation with the Assistant Secretary for International Affairs, by and shall report to the Under Secretary; and (B) may be an officer of the Department serving in another position. (3) Responsibilities.-- (A) Development of mechanisms.--The Director shall be responsible for developing, in coordination with the Department of State and, as appropriate, the Department of Defense, the Department of Energy, and other Federal agencies, understandings and agreements to allow and to support international cooperative activity in support of homeland security. (B) Priorities.--The Director shall be responsible for developing, in coordination with the Office of International Affairs and other Federal agencies, strategic priorities for international cooperative activity for the Department in support of homeland security. (C) Activities.--The Director shall facilitate the planning, development, and implementation of international cooperative activity to address the strategic priorities developed under subparagraph (B) through mechanisms the Under Secretary considers appropriate, including grants, cooperative agreements, or contracts to or with foreign public or private entities, governmental organizations, businesses (including small businesses and socially and economically disadvantaged small businesses (as those terms are defined in sections 3 and 8 of the Small Business Act (15 U.S.C. 632 and 637), respectively)), federally funded research and development centers, and universities. (D) Identification of partners.--The Director shall facilitate the matching of United States entities engaged in homeland security research with non-United States entities engaged in homeland security research so that they may partner in homeland security research activities. (4) Coordination.--The Director shall ensure that the activities under this subsection are coordinated with the Office of International Affairs and the Department of State and, as appropriate, the Department of Defense, the Department of Energy, and other relevant Federal agencies or interagency bodies. The Director may enter into joint activities with other Federal agencies. (c) Matching Funding.-- (1) In general.-- (A) Equitability.--The Director shall ensure that funding and resources expended in international cooperative activity will be equitably matched by the foreign partner government or other entity through direct funding, funding of complementary activities, or the provision of staff, facilities, material, or equipment. (B) Grant matching and repayment.-- (i) In general.--The Secretary may require a recipient of a grant under this section-- (I) to make a matching contribution of not more than 50 percent of the total cost of the proposed project for which the grant is awarded; and (II) to repay to the Secretary the amount of the grant (or a portion thereof), interest on such amount at an appropriate rate, and such charges for administration of the grant as the Secretary determines appropriate. (ii) Maximum amount.--The Secretary may not require that repayment under clause (i)(II) be more than 150 percent of the amount of the grant, adjusted for inflation on the basis of the Consumer Price Index. (2) Foreign partners.--Partners may include Israel, the United Kingdom, Canada, Australia, Singapore, and other allies in the global war on terrorism as determined to be appropriate by the Secretary of Homeland Security and the Secretary of State. (3) Loans of equipment.--The Director may make or accept loans of equipment for research and development and comparative testing purposes. (d) Foreign Reimbursements.--If the Science and Technology Homeland Security International Cooperative Programs Office participates in an international cooperative activity with a foreign partner on a cost-sharing basis, any reimbursements or contributions received from that foreign partner to meet its share of the project may be credited to appropriate current appropriations accounts of the Directorate of Science and Technology. (e) Report to Congress on International Cooperative Activities.--Not later than one year after the date of enactment of this section, and every 5 years thereafter, the Under Secretary, acting through the Director, shall submit to Congress a report containing-- (1) a brief description of each grant, cooperative agreement, or contract made or entered into under subsection (b)(3)(C), including the participants, goals, and amount and sources of funding; and (2) a list of international cooperative activities underway, including the participants, goals, expected duration, and amount and sources of funding, including resources provided to support the activities in lieu of direct funding. (f) Animal and Zoonotic Diseases.--As part of the international cooperative activities authorized in this section, the Under Secretary, in coordination with the Chief Medical Officer, the Department of State, and appropriate officials of the Department of Agriculture, the Department of Defense, and the Department of Health and Human Services, may enter into cooperative activities with foreign countries, including African nations, to strengthen American preparedness against foreign animal and zoonotic diseases overseas that could harm the Nation's agricultural and public health sectors if they were to reach the United States. (g) Construction; Authorities of the Secretary of State.-- Nothing in this section shall be construed to alter or affect the following provisions of law: (1) Title V of the Foreign Relations Authorization Act, Fiscal Year 1979 (22 U.S.C. 2656a et seq.). (2) Section 112b(c) of title 1, United States Code. (3) Section 1(e)(2) of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2651a(e)(2)). (4) Sections 2 and 27 of the Arms Export Control Act (22 U.S.C. 2752 and 22 U.S.C. 2767). (5) Section 622(c) of the Foreign Assistance Act of 1961 (22 U.S.C. 2382(c)). (h) Authorization of Appropriations.--There are authorized to be appropriated to carry out this section such sums as are necessary. TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY Subtitle A--Under Secretary for Border and Transportation Security SEC. 401. [6 U.S.C. 201] UNDER SECRETARY FOR BORDER AND TRANSPORTATION SECURITY. There shall be in the Department a Directorate of Border and Transportation Security headed by an Under Secretary for Border and Transportation Security. SEC. 402. [6 U.S.C. 202] RESPONSIBILITIES. The Secretary, acting through the Under Secretary for Border and Transportation Security, shall be responsible for the following: (1) Preventing the entry of terrorists and the instruments of terrorism into the United States. (2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry. (3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under section 441 takes effect. (4) Establishing and administering rules, in accordance with section 428, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States. (5) Establishing national immigration enforcement policies and priorities. (6) Except as provided in subtitle C, administering the customs laws of the United States. (7) Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security under section 421. (8) In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce. SEC. 403. [6 U.S.C. 203] FUNCTIONS TRANSFERRED. In accordance with title XV (relating to transition provisions), there shall be transferred to the Secretary the functions, personnel, assets, and liabilities of-- (1) the United States Customs Service of the Department of the Treasury, including the functions of the Secretary of the Treasury relating thereto; (2) the Transportation Security Administration of the Department of Transportation, including the functions of the Secretary of Transportation, and of the Under Secretary of Transportation for Security, relating thereto; (3) the Federal Protective Service of the General Services Administration, including the functions of the Administrator of General Services relating thereto; (4) the Federal Law Enforcement Training Center of the Department of the Treasury; and (5) the Office for Domestic Preparedness of the Office of Justice Programs, including the functions of the Attorney General relating thereto. Subtitle B--United States Customs Service SEC. 411. [6 U.S.C. 211] ESTABLISHMENT; COMMISSIONER OF CUSTOMS. (a) Establishment.--There is established in the Department the United States Customs Service, under the authority of the Under Secretary for Border and Transportation Security, which shall be vested with those functions including, but not limited to those set forth in section 415(7), and the personnel, assets, and liabilities attributable to those functions. (b) Commissioner of Customs.-- (1) In general.--There shall be at the head of the Customs Service a Commissioner of Customs, who shall be appointed by the President, by and with the advice and consent of the Senate. * * * * * * * (3) Continuation in office.--The individual serving as the Commissioner of Customs on the day before the effective date of this Act may serve as the Commissioner of Customs on and after such effective date until a Commissioner of Customs is appointed under paragraph (1). SEC. 412. [6 U.S.C. 212] RETENTION OF CUSTOMS REVENUE FUNCTIONS BY SECRETARY OF THE TREASURY. (a) Retention of Customs Revenue Functions by Secretary of the Treasury.-- (1) Retention of authority.--Notwithstanding section 403(a)(1), authority related to Customs revenue functions that was vested in the Secretary of the Treasury by law before the effective date of this Act under those provisions of law set forth in paragraph (2) shall not be transferred to the Secretary by reason of this Act, and on and after the effective date of this Act, the Secretary of the Treasury may delegate any such authority to the Secretary at the discretion of the Secretary of the Treasury. The Secretary of the Treasury shall consult with the Secretary regarding the exercise of any such authority not delegated to the Secretary. (2) Statutes.--The provisions of law referred to in paragraph (1) are the following: the Tariff Act of 1930; section 249 of the Revised Statutes of the United States (19 U.S.C. 3); section 2 of the Act of March 4, 1923 (19 U.S.C. 6); section 13031 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c); section 251 of the Revised Statutes of the United States (19 U.S.C. 66); section 1 of the Act of June 26, 1930 (19 U.S.C. 68); the Foreign Trade Zones Act (19 U.S.C. 81a et seq.); section 1 of the Act of March 2, 1911 (19 U.S.C. 198); the Trade Act of 1974; the Trade Agreements Act of 1979; the North American Free Trade Area Implementation Act; the Uruguay Round Agreements Act; the Caribbean Basin Economic Recovery Act; the Andean Trade Preference Act; the African Growth and Opportunity Act; and any other provision of law vesting customs revenue functions in the Secretary of the Treasury. (b) Maintenance of Customs Revenue Functions.-- (1) Maintenance of functions.--Notwithstanding any other provision of this Act, the Secretary may not consolidate, discontinue, or diminish those functions described in paragraph (2) performed by the United States Customs Service (as established under section 411) on or after the effective date of this Act, reduce the staffing level, or reduce the resources attributable to such functions, and the Secretary shall ensure that an appropriate management structure is implemented to carry out such functions. (2) Functions.--The functions referred to in paragraph (1) are those functions performed by the following personnel, and associated support staff, of the United States Customs Service on the day before the effective date of this Act: Import Specialists, Entry Specialists, Drawback Specialists, National Import Specialist, Fines and Penalties Specialists, attorneys of the Office of Regulations and Rulings, Customs Auditors, International Trade Specialists, Financial Systems Specialists. (c) New Personnel.--The Secretary of the Treasury is authorized to appoint up to 20 new personnel to work with personnel of the Department in performing customs revenue functions. SEC. 413. [6 U.S.C. 213] PRESERVATION OF CUSTOMS FUNDS. Notwithstanding any other provision of this Act, no funds available to the United States Customs Service or collected under paragraphs (1) through (8) of section 13031(a) of the Consolidated Omnibus Budget Reconciliation Act of 1985 may be transferred for use by any other agency or office in the Department. SEC. 414. [6 U.S.C. 214] SEPARATE BUDGET REQUEST FOR CUSTOMS. The President shall include in each budget transmitted to Congress under section 1105 of title 31, United States Code, a separate budget request for the United States Customs Service. SEC. 415. [6 U.S.C. 215] DEFINITION. In this subtitle, the term ``customs revenue function'' means the following: (1) Assessing and collecting customs duties (including antidumping and countervailing duties and duties imposed under safeguard provisions), excise taxes, fees, and penalties due on imported merchandise, including classifying and valuing merchandise for purposes of such assessment. (2) Processing and denial of entry of persons, baggage, cargo, and mail, with respect to the assessment and collection of import duties. (3) Detecting and apprehending persons engaged in fraudulent practices designed to circumvent the customs laws of the United States. (4) Enforcing section 337 of the Tariff Act of 1930 and provisions relating to import quotas and the marking of imported merchandise, and providing Customs Recordations for copyrights, patents, and trademarks. (5) Collecting accurate import data for compilation of international trade statistics. (6) Enforcing reciprocal trade agreements. (7) Functions performed by the following personnel, and associated support staff, of the United States Customs Service on the day before the effective date of this Act: Import Specialists, Entry Specialists, Drawback Specialists, National Import Specialist, Fines and Penalties Specialists, attorneys of the Office of Regulations and Rulings, Customs Auditors, International Trade Specialists, Financial Systems Specialists. (8) Functions performed by the following offices, with respect to any function described in any of paragraphs (1) through (7), and associated support staff, of the United States Customs Service on the day before the effective date of this Act: the Office of Information and Technology, the Office of Laboratory Services, the Office of the Chief Counsel, the Office of Congressional Affairs, the Office of International Affairs, and the Office of Training and Development. SEC. 416. [6 U.S.C. 216] GAO REPORT TO CONGRESS. Not later than 3 months after the effective date of this Act, the Comptroller General of the United States shall submit to Congress a report that sets forth all trade functions performed by the executive branch, specifying each agency that performs each such function. SEC. 417. [6 U.S.C. 217] ALLOCATION OF RESOURCES BY THE SECRETARY. (a) In General.--The Secretary shall ensure that adequate staffing is provided to assure that levels of customs revenue services provided on the day before the effective date of this Act shall continue to be provided. (b) Notification of Congress.--The Secretary shall notify the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate at least 90 days prior to taking any action which would-- (1) result in any significant reduction in customs revenue services, including hours of operation, provided at any office within the Department or any port of entry; (2) eliminate or relocate any office of the Department which provides customs revenue services; or (3) eliminate any port of entry. (c) Definition.--In this section, the term ``customs revenue services'' means those customs revenue functions described in paragraphs (1) through (6) and paragraph (8) of section 415. SEC. 418. [6 U.S.C. 218] REPORTS TO CONGRESS. (a) Continuing Reports.--The United States Customs Service shall, on and after the effective date of this Act, continue to submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate any report required, on the day before such the effective date of this Act, to be so submitted under any provision of law. (b) Report on Conforming Amendments.--Not later than 60 days after the date of enactment of this Act, the Secretary of the Treasury shall submit a report to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives of proposed conforming amendments to the statutes set forth under section 412(a)(2) in order to determine the appropriate allocation of legal authorities described under this subsection. The Secretary of the Treasury shall also identify those authorities vested in the Secretary of the Treasury that are exercised by the Commissioner of Customs on or before the effective date of this section. * * * * * * * Subtitle C--Miscellaneous Provisions SEC. 421. [6 U.S.C. 231] TRANSFER OF CERTAIN AGRICULTURAL INSPECTION FUNCTIONS OF THE DEPARTMENT OF AGRICULTURE. (a) Transfer of Agricultural Import and Entry Inspection Functions.--There shall be transferred to the Secretary the functions of the Secretary of Agriculture relating to agricultural import and entry inspection activities under the laws specified in subsection (b). (b) Covered Animal and Plant Protection Laws.--The laws referred to in subsection (a) are the following: (1) The Act commonly known as the Virus-Serum-Toxin Act (the eighth paragraph under the heading ``Bureau of Animal Industry'' in the Act of March 4, 1913; 21 U.S.C. 151 et seq.). (2) Section 1 of the Act of August 31, 1922 (commonly known as the Honeybee Act; 7 U.S.C. 281). (3) Title III of the Federal Seed Act (7 U.S.C. 1581 et seq.). (4) The Plant Protection Act (7 U.S.C. 7701 et seq.). (5) The Animal Health Protection Act (subtitle E of title X of Public Law 107-171; 7 U.S.C. 8301 et seq.). (6) The Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq.). (7) Section 11 of the Endangered Species Act of 1973 (16 U.S.C. 1540). (c) Exclusion of Quarantine Activities.--For purposes of this section, the term ``functions'' does not include any quarantine activities carried out under the laws specified in subsection (b). (d) Effect of Transfer.-- (1) Compliance with department of agriculture regulations.--The authority transferred pursuant to subsection (a) shall be exercised by the Secretary in accordance with the regulations, policies, and procedures issued by the Secretary of Agriculture regarding the administration of the laws specified in subsection (b). (2) Rulemaking coordination.--The Secretary of Agriculture shall coordinate with the Secretary whenever the Secretary of Agriculture prescribes regulations, policies, or procedures for administering the functions transferred under subsection (a) under a law specified in subsection (b). (3) Effective administration.--The Secretary, in consultation with the Secretary of Agriculture, may issue such directives and guidelines as are necessary to ensure the effective use of personnel of the Department of Homeland Security to carry out the functions transferred pursuant to subsection (a). (e) Transfer Agreement.-- (1) Agreement required; revision.--Before the end of the transition period, as defined in section 1501, the Secretary of Agriculture and the Secretary shall enter into an agreement to effectuate the transfer of functions required by subsection (a). The Secretary of Agriculture and the Secretary may jointly revise the agreement as necessary thereafter. (2) Required terms.--The agreement required by this subsection shall specifically address the following: (A) The supervision by the Secretary of Agriculture of the training of employees of the Secretary to carry out the functions transferred pursuant to subsection (a). (B) The transfer of funds to the Secretary under subsection (f). (3) Cooperation and reciprocity.--The Secretary of Agriculture and the Secretary may include as part of the agreement the following: (A) Authority for the Secretary to perform functions delegated to the Animal and Plant Health Inspection Service of the Department of Agriculture regarding the protection of domestic livestock and plants, but not transferred to the Secretary pursuant to subsection (a). (B) Authority for the Secretary of Agriculture to use employees of the Department of Homeland Security to carry out authorities delegated to the Animal and Plant Health Inspection Service regarding the protection of domestic livestock and plants. (f) Periodic Transfer of Funds to Department of Homeland Security.-- (1) Transfer of funds.--Out of funds collected by fees authorized under sections 2508 and 2509 of the Food, Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C. 136, 136a), the Secretary of Agriculture shall transfer, from time to time in accordance with the agreement under subsection (e), to the Secretary funds for activities carried out by the Secretary for which such fees were collected. (2) Limitation.--The proportion of fees collected pursuant to such sections that are transferred to the Secretary under this subsection may not exceed the proportion of the costs incurred by the Secretary to all costs incurred to carry out activities funded by such fees. (g) Transfer of Department of Agriculture Employees.--Not later than the completion of the transition period defined under section 1501, the Secretary of Agriculture shall transfer to the Secretary not more than 3,200 full-time equivalent positions of the Department of Agriculture. * * * * * * * SEC. 422. [6 U.S.C. 232] FUNCTIONS OF ADMINISTRATOR OF GENERAL SERVICES. (a) Operation, Maintenance, and Protection of Federal Buildings and Grounds.--Nothing in this Act may be construed to affect the functions or authorities of the Administrator of General Services with respect to the operation, maintenance, and protection of buildings and grounds owned or occupied by the Federal Government and under the jurisdiction, custody, or control of the Administrator. Except for the law enforcement and related security functions transferred under section 403(3), the Administrator shall retain all powers, functions, and authorities vested in the Administrator under chapter 10 of title 40, United States Code, and other provisions of law that are necessary for the operation, maintenance, and protection of such buildings and grounds. (b) Collection of Rents and Fees; Federal Buildings Fund.-- (1) Statutory construction.--Nothing in this Act may be construed-- (A) to direct the transfer of, or affect, the authority of the Administrator of General Services to collect rents and fees, including fees collected for protective services; or (B) to authorize the Secretary or any other official in the Department to obligate amounts in the Federal Buildings Fund established by section 490(f) of title 40, United States Code. (2) Use of transferred amounts.--Any amounts transferred by the Administrator of General Services to the Secretary out of rents and fees collected by the Administrator shall be used by the Secretary solely for the protection of buildings or grounds owned or occupied by the Federal Government. SEC. 423. [6 U.S.C. 233] FUNCTIONS OF TRANSPORTATION SECURITY ADMINISTRATION. (a) Consultation With Federal Aviation Administration.--The Secretary and other officials in the Department shall consult with the Administrator of the Federal Aviation Administration before taking any action that might affect aviation safety, air carrier operations, aircraft airworthiness, or the use of airspace. The Secretary shall establish a liaison office within the Department for the purpose of consulting with the Administrator of the Federal Aviation Administration. (b) Report to Congress.--Not later than 60 days after the date of enactment of this Act, the Secretary of Transportation shall transmit to Congress a report containing a plan for complying with the requirements of section 44901(d) of title 49, United States Code, as amended by section 425 of this Act. (c) Limitations on Statutory Construction.-- (1) Grant of authority.--Nothing in this Act may be construed to vest in the Secretary or any other official in the Department any authority over transportation security that is not vested in the Under Secretary of Transportation for Security, or in the Secretary of Transportation under chapter 449 of title 49, United States Code, on the day before the date of enactment of this Act. (2) Obligation of aip funds.--Nothing in this Act may be construed to authorize the Secretary or any other official in the Department to obligate amounts made available under section 48103 of title 49, United States Code. SEC. 424. [6 U.S.C. 234] PRESERVATION OF TRANSPORTATION SECURITY ADMINISTRATION AS A DISTINCT ENTITY. (a) In General.--Notwithstanding any other provision of this Act, and subject to subsection (b), the Transportation Security Administration shall be maintained as a distinct entity within the Department under the Under Secretary for Border Transportation and Security. (b) Sunset.--Subsection (a) shall cease to apply 2 years after the date of enactment of this Act. * * * * * * * SEC. 427. [6 U.S.C. 235] COORDINATION OF INFORMATION AND INFORMATION TECHNOLOGY. (a) Definition of Affected Agency.--In this section, the term ``affected agency'' means-- (1) the Department; (2) the Department of Agriculture; (3) the Department of Health and Human Services; and (4) any other department or agency determined to be appropriate by the Secretary. (b) Coordination.--The Secretary, in coordination with the Secretary of Agriculture, the Secretary of Health and Human Services, and the head of each other department or agency determined to be appropriate by the Secretary, shall ensure that appropriate information (as determined by the Secretary) concerning inspections of articles that are imported or entered into the United States, and are inspected or regulated by 1 or more affected agencies, is timely and efficiently exchanged between the affected agencies. (c) Report and Plan.--Not later than 18 months after the date of enactment of this Act, the Secretary, in consultation with the Secretary of Agriculture, the Secretary of Health and Human Services, and the head of each other department or agency determined to be appropriate by the Secretary, shall submit to Congress-- (1) a report on the progress made in implementing this section; and (2) a plan to complete implementation of this section. SEC. 428. [6 U.S.C. 236] VISA ISSUANCE. (a) Definition.--In this subsection, the term ``consular office'' has the meaning given that term under section 101(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(9)). (b) In General.--Notwithstanding section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other provision of law, and except as provided in subsection (c) of this section, the Secretary-- (1) shall be vested exclusively with all authorities to issue regulations with respect to, administer, and enforce the provisions of such Act, and of all other immigration and nationality laws, relating to the functions of consular officers of the United States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State, except that the Secretary shall not have authority to alter or reverse the decision of a consular officer to refuse a visa to an alien; and (2) shall have authority to confer or impose upon any officer or employee of the United States, with the consent of the head of the executive agency under whose jurisdiction such officer or employee is serving, any of the functions specified in paragraph (1). (c) Authority of the Secretary of State.-- (1) In general.--Notwithstanding subsection (b), the Secretary of State may direct a consular officer to refuse a visa to an alien if the Secretary of State deems such refusal necessary or advisable in the foreign policy or security interests of the United States. (2) Construction regarding authority.--Nothing in this section, consistent with the Secretary of Homeland Security's authority to refuse visas in accordance with law, shall be construed as affecting the authorities of the Secretary of State under the following provisions of law: (A) Section 101(a)(15)(A) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)). (B) Section 204(d)(2) of the Immigration and Nationality Act (8 U.S.C. 1154) (as it will take effect upon the entry into force of the Convention on Protection of Children and Cooperation in Respect to Inter-Country adoption). (C) Section 212(a)(3)(B)(i)(IV)(bb) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(IV)(bb)). (D) Section 212(a)(3)(B)(i)(VI) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(VI)). (E) Section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)). (F) Section 212(a)(3)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(C)). (G) Section 212(a)(10)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(10)(C)). (H) Section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)). (I) Section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)). (J) Section 237(a)(4)(C) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(C)). (K) Section 401 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6034; Public Law 104-114). (L) Section 613 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1999 (as contained in section 101(b) of division A of Public Law 105-277) (Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999); 112 Stat. 2681; H.R. 4328 (originally H.R. 4276) as amended by section 617 of Public Law 106-553. (M) Section 103(f) of the Chemical Weapon Convention Implementation Act of 1998 (112 Stat. 2681-865). (N) Section 801 of H.R. 3427, the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001, as enacted by reference in Public Law 106-113. (O) Section 568 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (Public Law 107-115). (P) Section 51 of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2723). (d) Consular Officers and Chiefs of Missions.-- (1) In general.--Nothing in this section may be construed to alter or affect-- (A) the employment status of consular officers as employees of the Department of State; or (B) the authority of a chief of mission under section 207 of the Foreign Service Act of 1980 (22 U.S.C. 3927). (2) Construction regarding delegation of authority.--Nothing in this section shall be construed to affect any delegation of authority to the Secretary of State by the President pursuant to any proclamation issued under section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)), consistent with the Secretary of Homeland Security's authority to refuse visas in accordance with law. (e) Assignment of Homeland Security Employees to Diplomatic and Consular Posts.-- (1) In general.--The Secretary is authorized to assign employees of the Department to each diplomatic and consular post at which visas are issued, unless the Secretary determines that such an assignment at a particular post would not promote homeland security. (2) Functions.--Employees assigned under paragraph (1) shall perform the following functions: (A) Provide expert advice and training to consular officers regarding specific security threats relating to the adjudication of individual visa applications or classes of applications. (B) Review any such applications, either on the initiative of the employee of the Department or upon request by a consular officer or other person charged with adjudicating such applications. (C) Conduct investigations with respect to consular matters under the jurisdiction of the Secretary. (3) Evaluation of consular officers.--The Secretary of State shall evaluate, in consultation with the Secretary, as deemed appropriate by the Secretary, the performance of consular officers with respect to the processing and adjudication of applications for visas in accordance with performance standards developed by the Secretary for these procedures. (4) Report.--The Secretary shall, on an annual basis, submit a report to Congress that describes the basis for each determination under paragraph (1) that the assignment of an employee of the Department at a particular diplomatic post would not promote homeland security. (5) Permanent assignment; participation in terrorist lookout committee.--When appropriate, employees of the Department assigned to perform functions described in paragraph (2) may be assigned permanently to overseas diplomatic or consular posts with country-specific or regional responsibility. If the Secretary so directs, any such employee, when present at an overseas post, shall participate in the terrorist lookout committee established under section 304 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1733). (6) Training and hiring.-- (A) In general.--The Secretary shall ensure, to the extent possible, that any employees of the Department assigned to perform functions under paragraph (2) and, as appropriate, consular officers, shall be provided the necessary training to enable them to carry out such functions, including training in foreign languages, interview techniques, and fraud detection techniques, in conditions in the particular country where each employee is assigned, and in other appropriate areas of study. (B) Use of center.--The Secretary is authorized to use the National Foreign Affairs Training Center, on a reimbursable basis, to obtain the training described in subparagraph (A). (7) Report.--Not later than 1 year after the date of enactment of this Act, the Secretary and the Secretary of State shall submit to Congress-- (A) a report on the implementation of this subsection; and (B) any legislative proposals necessary to further the objectives of this subsection. (8) Effective date.--This subsection shall take effect on the earlier of-- (A) the date on which the President publishes notice in the Federal Register that the President has submitted a report to Congress setting forth a memorandum of understanding between the Secretary and the Secretary of State governing the implementation of this section; or (B) the date occurring 1 year after the date of enactment of this Act. (f) No Creation of Private Right of Action.--Nothing in this section shall be construed to create or authorize a private right of action to challenge a decision of a consular officer or other United States official or employee to grant or deny a visa. (g) Study Regarding Use of Foreign Nationals.-- (1) In general.--The Secretary of Homeland Security shall conduct a study of the role of foreign nationals in the granting or refusal of visas and other documents authorizing entry of aliens into the United States. The study shall address the following: (A) The proper role, if any, of foreign nationals in the process of rendering decisions on such grants and refusals. (B) Any security concerns involving the employment of foreign nationals. (C) Whether there are cost-effective alternatives to the use of foreign nationals. (2) Report.--Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit a report containing the findings of the study conducted under paragraph (1) to the Committee on the Judiciary, the Committee on International Relations, and the Committee on Government Reform of the House of Representatives, and the Committee on the Judiciary, the Committee on Foreign Relations, and the Committee on Government Affairs of the Senate. (h) Report.--Not later than 120 days after the date of the enactment of this Act, the Director of the Office of Science and Technology Policy shall submit to Congress a report on how the provisions of this section will affect procedures for the issuance of student visas. (i) Visa Issuance Program for Saudi Arabia.-- Notwithstanding any other provision of law, after the date of the enactment of this Act all third party screening programs in Saudi Arabia shall be terminated. On-site personnel of the Department of Homeland Security shall review all visa applications prior to adjudication. SEC. 429. [6 U.S.C. 237] INFORMATION ON VISA DENIALS REQUIRED TO BE ENTERED INTO ELECTRONIC DATA SYSTEM. (a) In General.--Whenever a consular officer of the United States denies a visa to an applicant, the consular officer shall enter the fact and the basis of the denial and the name of the applicant into the interoperable electronic data system implemented under section 202(a) of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1722(a)). (b) Prohibition.--In the case of any alien with respect to whom a visa has been denied under subsection (a)-- (1) no subsequent visa may be issued to the alien unless the consular officer considering the alien's visa application has reviewed the information concerning the alien placed in the interoperable electronic data system, has indicated on the alien's application that the information has been reviewed, and has stated for the record why the visa is being issued or a waiver of visa ineligibility recommended in spite of that information; and (2) the alien may not be admitted to the United States without a visa issued in accordance with the procedures described in paragraph (1). SEC. 430. [6 U.S.C. 238] OFFICE FOR DOMESTIC PREPAREDNESS. (a) In General.--The Office for Domestic Preparedness shall be within the Directorate of Border and Transportation Security. (b) Director.--There shall be a Director of the Office for Domestic Preparedness, who shall be appointed by the President, by and with the advice and consent of the Senate. The Director of the Office for Domestic Preparedness shall report directly to the Under Secretary for Border and Transportation Security. (c) Responsibilities.--The Office for Domestic Preparedness shall have the primary responsibility within the executive branch of Government for the preparedness of the United States for acts of terrorism, including-- (1) coordinating preparedness efforts at the Federal level, and working with all State, local, tribal, parish, and private sector emergency response providers on all matters pertaining to combating terrorism, including training, exercises, and equipment support; (2) coordinating or, as appropriate, consolidating communications and systems of communications relating to homeland security at all levels of government; (3) directing and supervising terrorism preparedness grant programs of the Federal Government (other than those programs administered by the Department of Health and Human Services) for all emergency response providers; (4) incorporating the Strategy priorities into planning guidance on an agency level for the preparedness efforts of the Office for Domestic Preparedness; (5) providing agency-specific training for agents and analysts within the Department, other agencies, and State and local agencies and international entities; (6) as the lead executive branch agency for preparedness of the United States for acts of terrorism, cooperating closely with the Federal Emergency Management Agency, which shall have the primary responsibility within the executive branch to prepare for and mitigate the effects of nonterrorist- related disasters in the United States; (7) assisting and supporting the Secretary, in coordination with other Directorates and entities outside the Department, in conducting appropriate risk analysis and risk management activities of State, local, and tribal governments consistent with the mission and functions of the Directorate; (8) those elements of the Office of National Preparedness of the Federal Emergency Management Agency which relate to terrorism, which shall be consolidated within the Department in the Office for Domestic Preparedness established under this section; and (9) helping to ensure the acquisition of interoperable communication technology by State and local governments and emergency response providers. (d) Fiscal Years 2003 and 2004.--During fiscal year 2003 and fiscal year 2004, the Director of the Office for Domestic Preparedness established under this section shall manage and carry out those functions of the Office for Domestic Preparedness of the Department of Justice (transferred under this section) before September 11, 2001, under the same terms, conditions, policies, and authorities, and with the required level of personnel, assets, and budget before September 11, 2001. SEC. 431. [6 U.S.C. 239] OFFICE OF CARGO SECURITY POLICY. (a) Establishment.--There is established within the Department an Office of Cargo Security Policy (referred to in this section as the ``Office''). (b) Purpose.--The Office shall-- (1) coordinate all Department policies relating to cargo security; and (2) consult with stakeholders and coordinate with other Federal agencies in the establishment of standards and regulations and to promote best practices. (c) Director.-- (1) Appointment.--The Office shall be headed by a Director, who shall-- (A) be appointed by the Secretary; and (B) report to the Assistant Secretary for Policy. (2) Responsibilities.--The Director shall-- (A) advise the Assistant Secretary for Policy in the development of Department-wide policies regarding cargo security; (B) coordinate all policies relating to cargo security among the agencies and offices within the Department relating to cargo security; and (C) coordinate the cargo security policies of the Department with the policies of other executive agencies. Subtitle D--Immigration Enforcement Functions SEC. 441. [6 U.S.C. 251] TRANSFER OF FUNCTIONS TO UNDER SECRETARY FOR BORDER AND TRANSPORTATION SECURITY. In accordance with title XV (relating to transition provisions), there shall be transferred from the Commissioner of Immigration and Naturalization to the Under Secretary for Border and Transportation Security all functions performed under the following programs, and all personnel, assets, and liabilities pertaining to such programs, immediately before such transfer occurs: (1) The Border Patrol program. (2) The detention and removal program. (3) The intelligence program. (4) The investigations program. (5) The inspections program. SEC. 442. [6 U.S.C. 252] ESTABLISHMENT OF BUREAU OF BORDER SECURITY. (a) Establishment of Bureau.-- (1) In general.--There shall be in the Department of Homeland Security a bureau to be known as the ``Bureau of Border Security''. (2) Assistant secretary.--The head of the Bureau of Border Security shall be the Assistant Secretary of the Bureau of Border Security, who-- (A) shall report directly to the Under Secretary for Border and Transportation Security; and (B) shall have a minimum of 5 years professional experience in law enforcement, and a minimum of 5 years of management experience. (3) Functions.--The Assistant Secretary of the Bureau of Border Security-- (A) shall establish the policies for performing such functions as are-- (i) transferred to the Under Secretary for Border and Transportation Security by section 441 and delegated to the Assistant Secretary by the Under Secretary for Border and Transportation Security; or (ii) otherwise vested in the Assistant Secretary by law; (B) shall oversee the administration of such policies; and (C) shall advise the Under Secretary for Border and Transportation Security with respect to any policy or operation of the Bureau of Border Security that may affect the Bureau of Citizenship and Immigration Services established under subtitle E, including potentially conflicting policies or operations. (4) Program to collect information relating to foreign students.--The Assistant Secretary of the Bureau of Border Security shall be responsible for administering the program to collect information relating to nonimmigrant foreign students and other exchange program participants described in section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372), including the Student and Exchange Visitor Information System established under that section, and shall use such information to carry out the enforcement functions of the Bureau. (5) Managerial rotation program.-- (A) In general.--Not later than 1 year after the date on which the transfer of functions specified under section 441 takes effect, the Assistant Secretary of the Bureau of Border Security shall design and implement a managerial rotation program under which employees of such bureau holding positions involving supervisory or managerial responsibility and classified, in accordance with chapter 51 of title 5, United States Code, as a GS-14 or above, shall-- (i) gain some experience in all the major functions performed by such bureau; and (ii) work in at least one local office of such bureau. (B) Report.--Not later than 2 years after the date on which the transfer of functions specified under section 441 takes effect, the Secretary shall submit a report to the Congress on the implementation of such program. (b) Chief of Policy and Strategy.-- (1) In general.--There shall be a position of Chief of Policy and Strategy for the Bureau of Border Security. (2) Functions.--In consultation with Bureau of Border Security personnel in local offices, the Chief of Policy and Strategy shall be responsible for-- (A) making policy recommendations and performing policy research and analysis on immigration enforcement issues; and (B) coordinating immigration policy issues with the Chief of Policy and Strategy for the Bureau of Citizenship and Immigration Services (established under subtitle E), as appropriate. (c) Legal Advisor.--There shall be a principal legal advisor to the Assistant Secretary of the Bureau of Border Security. The legal advisor shall provide specialized legal advice to the Assistant Secretary of the Bureau of Border Security and shall represent the bureau in all exclusion, deportation, and removal proceedings before the Executive Office for Immigration Review. SEC. 443. [6 U.S.C. 253] PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW. The Under Secretary for Border and Transportation Security shall be responsible for-- (1) conducting investigations of noncriminal allegations of misconduct, corruption, and fraud involving any employee of the Bureau of Border Security that are not subject to investigation by the Inspector General for the Department; (2) inspecting the operations of the Bureau of Border Security and providing assessments of the quality of the operations of such bureau as a whole and each of its components; and (3) providing an analysis of the management of the Bureau of Border Security. SEC. 444. [6 U.S.C. 254] EMPLOYEE DISCIPLINE. The Under Secretary for Border and Transportation Security may, notwithstanding any other provision of law, impose disciplinary action, including termination of employment, pursuant to policies and procedures applicable to employees of the Federal Bureau of Investigation, on any employee of the Bureau of Border Security who willfully deceives the Congress or agency leadership on any matter. SEC. 445. [6 U.S.C. 255] REPORT ON IMPROVING ENFORCEMENT FUNCTIONS. (a) In General.--The Secretary, not later than 1 year after being sworn into office, shall submit to the Committees on Appropriations and the Judiciary of the House of Representatives and of the Senate a report with a plan detailing how the Bureau of Border Security, after the transfer of functions specified under section 441 takes effect, will enforce comprehensively, effectively, and fairly all the enforcement provisions of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) relating to such functions. (b) Consultation.--In carrying out subsection (a), the Secretary of Homeland Security shall consult with the Attorney General, the Secretary of State, the Director of the Federal Bureau of Investigation, the Secretary of the Treasury, the Secretary of Labor, the Commissioner of Social Security, the Director of the Executive Office for Immigration Review, and the heads of State and local law enforcement agencies to determine how to most effectively conduct enforcement operations. SEC. 446. [6 U.S.C. 256] SENSE OF CONGRESS REGARDING CONSTRUCTION OF FENCING NEAR SAN DIEGO, CALIFORNIA. It is the sense of the Congress that completing the 14-mile border fence project required to be carried out under section 102(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) should be a priority for the Secretary. Subtitle E--Citizenship and Immigration Services SEC. 451. [6 U.S.C. 271] ESTABLISHMENT OF BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES. (a) Establishment of Bureau.-- (1) In general.--There shall be in the Department a bureau to be known as the ``Bureau of Citizenship and Immigration Services''. (2) Director.--The head of the Bureau of Citizenship and Immigration Services shall be the Director of the Bureau of Citizenship and Immigration Services, who-- (A) shall report directly to the Deputy Secretary; (B) shall have a minimum of 5 years of management experience; and (C) shall be paid at the same level as the Assistant Secretary of the Bureau of Border Security. (3) Functions.--The Director of the Bureau of Citizenship and Immigration Services-- (A) shall establish the policies for performing such functions as are transferred to the Director by this section or this Act or otherwise vested in the Director by law; (B) shall oversee the administration of such policies; (C) shall advise the Deputy Secretary with respect to any policy or operation of the Bureau of Citizenship and Immigration Services that may affect the Bureau of Border Security of the Department, including potentially conflicting policies or operations; (D) shall establish national immigration services policies and priorities; (E) shall meet regularly with the Ombudsman described in section 452 to correct serious service problems identified by the Ombudsman; and (F) shall establish procedures requiring a formal response to any recommendations submitted in the Ombudsman's annual report to Congress within 3 months after its submission to Congress. (4) Managerial rotation program.-- (A) In general.--Not later than 1 year after the effective date specified in section 455, the Director of the Bureau of Citizenship and Immigration Services shall design and implement a managerial rotation program under which employees of such bureau holding positions involving supervisory or managerial responsibility and classified, in accordance with chapter 51 of title 5, United States Code, as a GS-14 or above, shall-- (i) gain some experience in all the major functions performed by such bureau; and (ii) work in at least one field office and one service center of such bureau. (B) Report.--Not later than 2 years after the effective date specified in section 455, the Secretary shall submit a report to Congress on the implementation of such program. (5) Pilot initiatives for backlog elimination.--The Director of the Bureau of Citizenship and Immigration Services is authorized to implement innovative pilot initiatives to eliminate any remaining backlog in the processing of immigration benefit applications, and to prevent any backlog in the processing of such applications from recurring, in accordance with section 204(a) of the Immigration Services and Infrastructure Improvements Act of 2000 (8 U.S.C. 1573(a)). Such initiatives may include measures such as increasing personnel, transferring personnel to focus on areas with the largest potential for backlog, and streamlining paperwork. (b) Transfer of Functions From Commissioner.--In accordance with title XV (relating to transition provisions), there are transferred from the Commissioner of Immigration and Naturalization to the Director of the Bureau of Citizenship and Immigration Services the following functions, and all personnel, infrastructure, and funding provided to the Commissioner in support of such functions immediately before the effective date specified in section 455: (1) Adjudications of immigrant visa petitions. (2) Adjudications of naturalization petitions. (3) Adjudications of asylum and refugee applications. (4) Adjudications performed at service centers. (5) All other adjudications performed by the Immigration and Naturalization Service immediately before the effective date specified in section 455. (c) Chief of Policy and Strategy.-- (1) In general.--There shall be a position of Chief of Policy and Strategy for the Bureau of Citizenship and Immigration Services. (2) Functions.--In consultation with Bureau of Citizenship and Immigration Services personnel in field offices, the Chief of Policy and Strategy shall be responsible for-- (A) making policy recommendations and performing policy research and analysis on immigration services issues; and (B) coordinating immigration policy issues with the Chief of Policy and Strategy for the Bureau of Border Security of the Department. (d) Legal Advisor.-- (1) In general.--There shall be a principal legal advisor to the Director of the Bureau of Citizenship and Immigration Services. (2) Functions.--The legal advisor shall be responsible for-- (A) providing specialized legal advice, opinions, determinations, regulations, and any other assistance to the Director of the Bureau of Citizenship and Immigration Services with respect to legal matters affecting the Bureau of Citizenship and Immigration Services; and (B) representing the Bureau of Citizenship and Immigration Services in visa petition appeal proceedings before the Executive Office for Immigration Review. (e) Budget Officer.-- (1) In general.--There shall be a Budget Officer for the Bureau of Citizenship and Immigration Services. (2) Functions.-- (A) In general.--The Budget Officer shall be responsible for-- (i) formulating and executing the budget of the Bureau of Citizenship and Immigration Services; (ii) financial management of the Bureau of Citizenship and Immigration Services; and (iii) collecting all payments, fines, and other debts for the Bureau of Citizenship and Immigration Services. (f) Chief of Office of Citizenship.-- (1) In general.--There shall be a position of Chief of the Office of Citizenship for the Bureau of Citizenship and Immigration Services. (2) Functions.--The Chief of the Office of Citizenship for the Bureau of Citizenship and Immigration Services shall be responsible for promoting instruction and training on citizenship responsibilities for aliens interested in becoming naturalized citizens of the United States, including the development of educational materials. (g) \1\ Office of the FBI Liaison.-- --------------------------------------------------------------------------- \1\ Subsection (g) of section 451 was added by section 2(a) of Public Law 110-382. Section 4 of such Public Law provides: SEC. 4. SUNSET PROVISION. --------------------------------------------------------------------------- This Act and the amendments made by this Act are repealed on the date that is 5 years after the date of the enactment of this Act. [enactment date is October 9, 2008] --------------------------------------------------------------------------- (1) In general.--There shall be an Office of the FBI Liaison in the Department of Homeland Security. (2) Functions.--The Office of the FBI Liaison shall monitor the progress of the functions of the Federal Bureau of Investigation in the naturalization process to assist in the expeditious completion of all such functions pertaining to naturalization applications filed by, or on behalf of-- (A) current or former members of the Armed Forces under section 328 or 329 of the Immigration and Nationality Act (8 U.S.C. 1439 and 1440); (B) current spouses of United States citizens who are currently serving on active duty in the Armed Forces, who qualify for naturalization under section 319(b) of the Immigration and Nationality Act (8 U.S.C. 1430(b)), and surviving spouses and children who qualify for naturalization under section 319(d) of such Act; or (C) a deceased individual who is eligible for posthumous citizenship under section 329A of the Immigration and Nationality Act (8 U.S.C. 1440-1). (3) Authorization of appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this subsection. SEC. 452. [6 U.S.C. 272] CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN. (a) In General.--Within the Department, there shall be a position of Citizenship and Immigration Services Ombudsman (in this section referred to as the ``Ombudsman''). The Ombudsman shall report directly to the Deputy Secretary. The Ombudsman shall have a background in customer service as well as immigration law. (b) Functions.--It shall be the function of the Ombudsman-- (1) to assist individuals and employers in resolving problems with the Bureau of Citizenship and Immigration Services; (2) to identify areas in which individuals and employers have problems in dealing with the Bureau of Citizenship and Immigration Services; and (3) to the extent possible, to propose changes in the administrative practices of the Bureau of Citizenship and Immigration Services to mitigate problems identified under paragraph (2). (c) Annual Reports.-- (1) Objectives.--Not later than June 30 of each calendar year, the Ombudsman shall report to the Committee on the Judiciary of the House of Representatives and the Senate on the objectives of the Office of the Ombudsman for the fiscal year beginning in such calendar year. Any such report shall contain full and substantive analysis, in addition to statistical information, and-- (A) shall identify the recommendations the Office of the Ombudsman has made on improving services and responsiveness of the Bureau of Citizenship and Immigration Services; (B) shall contain a summary of the most pervasive and serious problems encountered by individuals and employers, including a description of the nature of such problems; (C) shall contain an inventory of the items described in subparagraphs (A) and (B) for which action has been taken and the result of such action; (D) shall contain an inventory of the items described in subparagraphs (A) and (B) for which action remains to be completed and the period during which each item has remained on such inventory; (E) shall contain an inventory of the items described in subparagraphs (A) and (B) for which no action has been taken, the period during which each item has remained on such inventory, the reasons for the inaction, and shall identify any official of the Bureau of Citizenship and Immigration Services who is responsible for such inaction; (F) shall contain recommendations for such administrative action as may be appropriate to resolve problems encountered by individuals and employers, including problems created by excessive backlogs in the adjudication and processing of immigration benefit petitions and applications; and (G) shall include such other information as the Ombudsman may deem advisable. (2) Report to be submitted directly.--Each report required under this subsection shall be provided directly to the committees described in paragraph (1) without any prior comment or amendment from the Secretary, Deputy Secretary, Director of the Bureau of Citizenship and Immigration Services, or any other officer or employee of the Department or the Office of Management and Budget. (d) Other Responsibilities.--The Ombudsman-- (1) shall monitor the coverage and geographic allocation of local offices of the Ombudsman; (2) shall develop guidance to be distributed to all officers and employees of the Bureau of Citizenship and Immigration Services outlining the criteria for referral of inquiries to local offices of the Ombudsman; (3) shall ensure that the local telephone number for each local office of the Ombudsman is published and available to individuals and employers served by the office; and (4) shall meet regularly with the Director of the Bureau of Citizenship and Immigration Services to identify serious service problems and to present recommendations for such administrative action as may be appropriate to resolve problems encountered by individuals and employers. (e) Personnel Actions.-- (1) In general.--The Ombudsman shall have the responsibility and authority-- (A) to appoint local ombudsmen and make available at least 1 such ombudsman for each State; and (B) to evaluate and take personnel actions (including dismissal) with respect to any employee of any local office of the Ombudsman. (2) Consultation.--The Ombudsman may consult with the appropriate supervisory personnel of the Bureau of Citizenship and Immigration Services in carrying out the Ombudsman's responsibilities under this subsection. (f) Responsibilities of Bureau of Citizenship and Immigration Services.--The Director of the Bureau of Citizenship and Immigration Services shall establish procedures requiring a formal response to all recommendations submitted to such director by the Ombudsman within 3 months after submission to such director. (g) Operation of Local Offices.-- (1) In general.--Each local ombudsman-- (A) shall report to the Ombudsman or the delegate thereof; (B) may consult with the appropriate supervisory personnel of the Bureau of Citizenship and Immigration Services regarding the daily operation of the local office of such ombudsman; (C) shall, at the initial meeting with any individual or employer seeking the assistance of such local office, notify such individual or employer that the local offices of the Ombudsman operate independently of any other component of the Department and report directly to Congress through the Ombudsman; and (D) at the local ombudsman's discretion, may determine not to disclose to the Bureau of Citizenship and Immigration Services contact with, or information provided by, such individual or employer. (2) Maintenance of independent communications.-- Each local office of the Ombudsman shall maintain a phone, facsimile, and other means of electronic communication access, and a post office address, that is separate from those maintained by the Bureau of Citizenship and Immigration Services, or any component of the Bureau of Citizenship and Immigration Services. SEC. 453. [6 U.S.C. 273] PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW. (a) In General.--The Director of the Bureau of Citizenship and Immigration Services shall be responsible for-- (1) conducting investigations of noncriminal allegations of misconduct, corruption, and fraud involving any employee of the Bureau of Citizenship and Immigration Services that are not subject to investigation by the Inspector General for the Department; (2) inspecting the operations of the Bureau of Citizenship and Immigration Services and providing assessments of the quality of the operations of such bureau as a whole and each of its components; and (3) providing an analysis of the management of the Bureau of Citizenship and Immigration Services. (b) Special Considerations.--In providing assessments in accordance with subsection (a)(2) with respect to a decision of the Bureau of Citizenship and Immigration Services, or any of its components, consideration shall be given to-- (1) the accuracy of the findings of fact and conclusions of law used in rendering the decision; (2) any fraud or misrepresentation associated with the decision; and (3) the efficiency with which the decision was rendered. SEC. 454. [6 U.S.C. 274] EMPLOYEE DISCIPLINE. The Director of the Bureau of Citizenship and Immigration Services may, notwithstanding any other provision of law, impose disciplinary action, including termination of employment, pursuant to policies and procedures applicable to employees of the Federal Bureau of Investigation, on any employee of the Bureau of Citizenship and Immigration Services who willfully deceives Congress or agency leadership on any matter. SEC. 455. [6 U.S.C. 271 NOTE] EFFECTIVE DATE. Notwithstanding section 4, sections 451 through 456, and the amendments made by such sections, shall take effect on the date on which the transfer of functions specified under section 441 takes effect. SEC. 456. [6 U.S.C. 275] TRANSITION. (a) References.--With respect to any function transferred by this subtitle to, and exercised on or after the effective date specified in section 455 by, the Director of the Bureau of Citizenship and Immigration Services, any reference in any other Federal law, Executive order, rule, regulation, or delegation of authority, or any document of or pertaining to a component of government from which such function is transferred-- (1) to the head of such component is deemed to refer to the Director of the Bureau of Citizenship and Immigration Services; or (2) to such component is deemed to refer to the Bureau of Citizenship and Immigration Services. (b) Other Transition Issues.-- (1) Exercise of authorities.--Except as otherwise provided by law, a Federal official to whom a function is transferred by this subtitle may, for purposes of performing the function, exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function immediately before the effective date specified in section 455. (2) Transfer and allocation of appropriations and personnel.--The personnel of the Department of Justice employed in connection with the functions transferred by this subtitle (and functions that the Secretary determines are properly related to the functions of the Bureau of Citizenship and Immigration Services), and the assets, liabilities, contracts, property, records, and unexpended balance of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available to, or to be made available to, the Immigration and Naturalization Service in connection with the functions transferred by this subtitle, subject to section 202 of the Budget and Accounting Procedures Act of 1950, shall be transferred to the Director of the Bureau of Citizenship and Immigration Services for allocation to the appropriate component of the Department. Unexpended funds transferred pursuant to this paragraph shall be used only for the purposes for which the funds were originally authorized and appropriated. The Secretary shall have the right to adjust or realign transfers of funds and personnel effected pursuant to this subtitle for a period of 2 years after the effective date specified in section 455. * * * * * * * SEC. 459. [6 U.S.C. 276] REPORT ON IMPROVING IMMIGRATION SERVICES. (a) In General.--The Secretary, not later than 1 year after the effective date of this Act, shall submit to the Committees on the Judiciary and Appropriations of the House of Representatives and of the Senate a report with a plan detailing how the Bureau of Citizenship and Immigration Services, after the transfer of functions specified in this subtitle takes effect, will complete efficiently, fairly, and within a reasonable time, the adjudications described in paragraphs (1) through (5) of section 451(b). (b) Contents.--For each type of adjudication to be undertaken by the Director of the Bureau of Citizenship and Immigration Services, the report shall include the following: (1) Any potential savings of resources that may be implemented without affecting the quality of the adjudication. (2) The goal for processing time with respect to the application. (3) Any statutory modifications with respect to the adjudication that the Secretary considers advisable. (c) Consultation.--In carrying out subsection (a), the Secretary shall consult with the Secretary of State, the Secretary of Labor, the Assistant Secretary of the Bureau of Border Security of the Department, and the Director of the Executive Office for Immigration Review to determine how to streamline and improve the process for applying for and making adjudications described in section 451(b) and related processes. SEC. 460. [6 U.S.C. 277] REPORT ON RESPONDING TO FLUCTUATING NEEDS. Not later than 30 days after the date of the enactment of this Act, the Attorney General shall submit to Congress a report on changes in law, including changes in authorizations of appropriations and in appropriations, that are needed to permit the Immigration and Naturalization Service, and, after the transfer of functions specified in this subtitle takes effect, the Bureau of Citizenship and Immigration Services of the Department, to ensure a prompt and timely response to emergent, unforeseen, or impending changes in the number of applications for immigration benefits, and otherwise to ensure the accommodation of changing immigration service needs. SEC. 461. [6 U.S.C. 278] APPLICATION OF INTERNET-BASED TECHNOLOGIES. (a) Establishment of Tracking System.--The Secretary, not later than 1 year after the effective date of this Act, in consultation with the Technology Advisory Committee established under subsection (c), shall establish an Internet-based system, that will permit a person, employer, immigrant, or nonimmigrant who has filings with the Secretary for any benefit under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), access to online information about the processing status of the filing involved. (b) Feasibility Study for Online Filing and Improved Processing.-- (1) Online filing.--The Secretary, in consultation with the Technology Advisory Committee established under subsection (c), shall conduct a feasibility study on the online filing of the filings described in subsection (a). The study shall include a review of computerization and technology of the Immigration and Naturalization Service relating to the immigration services and processing of filings related to immigrant services. The study shall also include an estimate of the timeframe and cost and shall consider other factors in implementing such a filing system, including the feasibility of fee payment online. (2) Report.--A report on the study under this subsection shall be submitted to the Committees on the Judiciary of the House of Representatives and the Senate not later than 1 year after the effective date of this Act. (c) Technology Advisory Committee.-- (1) Establishment.--The Secretary shall establish, not later than 60 days after the effective date of this Act, an advisory committee (in this section referred to as the ``Technology Advisory Committee'') to assist the Secretary in-- (A) establishing the tracking system under subsection (a); and (B) conducting the study under subsection (b). The Technology Advisory Committee shall be established after consultation with the Committees on the Judiciary of the House of Representatives and the Senate. (2) Composition.--The Technology Advisory Committee shall be composed of representatives from high technology companies capable of establishing and implementing the system in an expeditious manner, and representatives of persons who may use the tracking system described in subsection (a) and the online filing system described in subsection (b)(1). SEC. 462. [6 U.S.C. 279] CHILDREN'S AFFAIRS. (a) Transfer of Functions.--There are transferred to the Director of the Office of Refugee Resettlement of the Department of Health and Human Services functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the effective date specified in subsection (d). (b) Functions.-- (1) In general.--Pursuant to the transfer made by subsection (a), the Director of the Office of Refugee Resettlement shall be responsible for-- (A) coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status, including developing a plan to be submitted to Congress on how to ensure that qualified and independent legal counsel is timely appointed to represent the interests of each such child, consistent with the law regarding appointment of counsel that is in effect on the date of the enactment of this Act; (B) ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child; (C) making placement determinations for all unaccompanied alien children who are in Federal custody by reason of their immigration status; (D) implementing the placement determinations; (E) implementing policies with respect to the care and placement of unaccompanied alien children; (F) identifying a sufficient number of qualified individuals, entities, and facilities to house unaccompanied alien children; (G) overseeing the infrastructure and personnel of facilities in which unaccompanied alien children reside; (H) reuniting unaccompanied alien children with a parent abroad in appropriate cases; (I) compiling, updating, and publishing at least annually a state-by-state list of professionals or other entities qualified to provide guardian and attorney representation services for unaccompanied alien children; (J) maintaining statistical information and other data on unaccompanied alien children for whose care and placement the Director is responsible, which shall include-- (i) biographical information, such as a child's name, gender, date of birth, country of birth, and country of habitual residence; (ii) the date on which the child came into Federal custody by reason of his or her immigration status; (iii) information relating to the child's placement, removal, or release from each facility in which the child has resided; (iv) in any case in which the child is placed in detention or released, an explanation relating to the detention or release; and (v) the disposition of any actions in which the child is the subject; (K) collecting and compiling statistical information from the Department of Justice, the Department of Homeland Security, and the Department of State on each department's actions relating to unaccompanied alien children; and (L) conducting investigations and inspections of facilities and other entities in which unaccompanied alien children reside. (2) Coordination with other entities; no release on own recognizance.--In making determinations described in paragraph (1)(C), the Director of the Office of Refugee Resettlement-- (A) shall consult with appropriate juvenile justice professionals, the Director of the Bureau of Citizenship and Immigration Services, and the Assistant Secretary of the Bureau of Border Security to ensure that such determinations ensure that unaccompanied alien children described in such subparagraph-- (i) are likely to appear for all hearings or proceedings in which they are involved; (ii) are protected from smugglers, traffickers, or others who might seek to victimize or otherwise engage them in criminal, harmful, or exploitive activity; and (iii) are placed in a setting in which they are not likely to pose a danger to themselves or others; and (B) shall not release such children upon their own recognizance. (3) Duties with respect to foster care.--In carrying out the duties described in paragraph (1)(G), the Director of the Office of Refugee Resettlement is encouraged to use the refugee children foster care system established pursuant to section 412(d) of the Immigration and Nationality Act (8 U.S.C. 1522(d)) for the placement of unaccompanied alien children. (c) Rule of Construction.--Nothing in this section may be construed to transfer the responsibility for adjudicating benefit determinations under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) from the authority of any official of the Department of Justice, the Department of Homeland Security, or the Department of State. (d) Effective Date.--Notwithstanding section 4, this section shall take effect on the date on which the transfer of functions specified under section 441 takes effect. (e) References.--With respect to any function transferred by this section, any reference in any other Federal law, Executive order, rule, regulation, or delegation of authority, or any document of or pertaining to a component of government from which such function is transferred-- (1) to the head of such component is deemed to refer to the Director of the Office of Refugee Resettlement; or (2) to such component is deemed to refer to the Office of Refugee Resettlement of the Department of Health and Human Services. (f) Other Transition Issues.-- (1) Exercise of authorities.--Except as otherwise provided by law, a Federal official to whom a function is transferred by this section may, for purposes of performing the function, exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function immediately before the effective date specified in subsection (d). (2) Savings provisions.--Subsections (a), (b), and (c) of section 1512 shall apply to a transfer of functions under this section in the same manner as such provisions apply to a transfer of functions under this Act to the Department of Homeland Security. (3) Transfer and allocation of appropriations and personnel.--The personnel of the Department of Justice employed in connection with the functions transferred by this section, and the assets, liabilities, contracts, property, records, and unexpended balance of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available to, or to be made available to, the Immigration and Naturalization Service in connection with the functions transferred by this section, subject to section 202 of the Budget and Accounting Procedures Act of 1950, shall be transferred to the Director of the Office of Refugee Resettlement for allocation to the appropriate component of the Department of Health and Human Services. Unexpended funds transferred pursuant to this paragraph shall be used only for the purposes for which the funds were originally authorized and appropriated. (g) Definitions.--As used in this section-- (1) the term ``placement'' means the placement of an unaccompanied alien child in either a detention facility or an alternative to such a facility; and (2) the term ``unaccompanied alien child'' means a child who-- (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom-- (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody. Subtitle F--General Immigration Provisions SEC. 471. [6 U.S.C. 291] ABOLISHMENT OF INS. (a) In General.--Upon completion of all transfers from the Immigration and Naturalization Service as provided for by this Act, the Immigration and Naturalization Service of the Department of Justice is abolished. (b) Prohibition.--The authority provided by section 1502 may be used to reorganize functions or organizational units within the Bureau of Border Security or the Bureau of Citizenship and Immigration Services, but may not be used to recombine the two bureaus into a single agency or otherwise to combine, join, or consolidate functions or organizational units of the two bureaus with each other. SEC. 472. [6 U.S.C. 292] VOLUNTARY SEPARATION INCENTIVE PAYMENTS. (a) Definitions.--For purposes of this section-- (1) the term ``employee'' means an employee (as defined by section 2105 of title 5, United States Code) who-- (A) has completed at least 3 years of current continuous service with 1 or more covered entities; and (B) is serving under an appointment without time limitation, but does not include any person under subparagraphs (A)-(G) of section 663(a)(2) of Public Law 104-208 (5 U.S.C. 5597 note); (2) the term ``covered entity'' means-- (A) the Immigration and Naturalization Service; (B) the Bureau of Border Security of the Department of Homeland Security; and (C) the Bureau of Citizenship and Immigration Services of the Department of Homeland Security; and (3) the term ``transfer date'' means the date on which the transfer of functions specified under section 441 takes effect. (b) Strategic Restructuring Plan.--Before the Attorney General or the Secretary obligates any resources for voluntary separation incentive payments under this section, such official shall submit to the appropriate committees of Congress a strategic restructuring plan, which shall include-- (1) an organizational chart depicting the covered entities after their restructuring pursuant to this Act; (2) a summary description of how the authority under this section will be used to help carry out that restructuring; and (3) the information specified in section 663(b)(2) of Public Law 104-208 (5 U.S.C. 5597 note). As used in the preceding sentence, the ``appropriate committees of Congress'' are the Committees on Appropriations, Government Reform, and the Judiciary of the House of Representatives, and the Committees on Appropriations, Governmental Affairs, and the Judiciary of the Senate. (c) Authority.--The Attorney General and the Secretary may, to the extent necessary to help carry out their respective strategic restructuring plan described in subsection (b), make voluntary separation incentive payments to employees. Any such payment-- (1) shall be paid to the employee, in a lump sum, after the employee has separated from service; (2) shall be paid from appropriations or funds available for the payment of basic pay of the employee; (3) shall be equal to the lesser of-- (A) the amount the employee would be entitled to receive under section 5595(c) of title 5, United States Code; or (B) an amount not to exceed $25,000, as determined by the Attorney General or the Secretary; (4) may not be made except in the case of any qualifying employee who voluntarily separates (whether by retirement or resignation) before the end of-- (A) the 3-month period beginning on the date on which such payment is offered or made available to such employee; or (B) the 3-year period beginning on the date of the enactment of this Act, whichever occurs first; (5) shall not be a basis for payment, and shall not be included in the computation, of any other type of Government benefit; and (6) shall not be taken into account in determining the amount of any severance pay to which the employee may be entitled under section 5595 of title 5, United States Code, based on any other separation. (d) Additional Agency Contributions to the Retirement Fund.-- (1) In general.--In addition to any payments which it is otherwise required to make, the Department of Justice and the Department of Homeland Security shall, for each fiscal year with respect to which it makes any voluntary separation incentive payments under this section, remit to the Office of Personnel Management for deposit in the Treasury of the United States to the credit of the Civil Service Retirement and Disability Fund the amount required under paragraph (2). (2) Amount required.--The amount required under this paragraph shall, for any fiscal year, be the amount under subparagraph (A) or (B), whichever is greater. (A) First method.--The amount under this subparagraph shall, for any fiscal year, be equal to the minimum amount necessary to offset the additional costs to the retirement systems under title 5, United States Code (payable out of the Civil Service Retirement and Disability Fund) resulting from the voluntary separation of the employees described in paragraph (3), as determined under regulations of the Office of Personnel Management. (B) Second method.--The amount under this subparagraph shall, for any fiscal year, be equal to 45 percent of the sum total of the final basic pay of the employees described in paragraph (3). (3) Computations to be based on separations occurring in the fiscal year involved.--The employees described in this paragraph are those employees who receive a voluntary separation incentive payment under this section based on their separating from service during the fiscal year with respect to which the payment under this subsection relates. (4) Final basic pay defined.--In this subsection, the term ``final basic pay'' means, with respect to an employee, the total amount of basic pay which would be payable for a year of service by such employee, computed using the employee's final rate of basic pay, and, if last serving on other than a full-time basis, with appropriate adjustment therefor. (e) Effect of Subsequent Employment With the Government.-- An individual who receives a voluntary separation incentive payment under this section and who, within 5 years after the date of the separation on which the payment is based, accepts any compensated employment with the Government or works for any agency of the Government through a personal services contract, shall be required to pay, prior to the individual's first day of employment, the entire amount of the incentive payment. Such payment shall be made to the covered entity from which the individual separated or, if made on or after the transfer date, to the Deputy Secretary or the Under Secretary for Border and Transportation Security (for transfer to the appropriate component of the Department of Homeland Security, if necessary). (f) Effect on Employment Levels.-- (1) Intended effect.--Voluntary separations under this section are not intended to necessarily reduce the total number of full-time equivalent positions in any covered entity. (2) Use of voluntary separations.--A covered entity may redeploy or use the full-time equivalent positions vacated by voluntary separations under this section to make other positions available to more critical locations or more critical occupations. SEC. 473. [6 U.S.C. 293] AUTHORITY TO CONDUCT A DEMONSTRATION PROJECT RELATING TO DISCIPLINARY ACTION. (a) In General.--The Attorney General and the Secretary may each, during a period ending not later than 5 years after the date of the enactment of this Act, conduct a demonstration project for the purpose of determining whether one or more changes in the policies or procedures relating to methods for disciplining employees would result in improved personnel management. (b) Scope.--A demonstration project under this section-- (1) may not cover any employees apart from those employed in or under a covered entity; and (2) shall not be limited by any provision of chapter 43, 75, or 77 of title 5, United States Code. (c) Procedures.--Under the demonstration project-- (1) the use of alternative means of dispute resolution (as defined in section 571 of title 5, United States Code) shall be encouraged, whenever appropriate; and (2) each covered entity under the jurisdiction of the official conducting the project shall be required to provide for the expeditious, fair, and independent review of any action to which section 4303 or subchapter II of chapter 75 of such title 5 would otherwise apply (except an action described in section 7512(5) of such title 5). (d) Actions Involving Discrimination.--Notwithstanding any other provision of this section, if, in the case of any matter described in section 7702(a)(1)(B) of title 5, United States Code, there is no judicially reviewable action under the demonstration project within 120 days after the filing of an appeal or other formal request for review (referred to in subsection (c)(2)), an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 7702(e)(1) of such title 5 (in the matter following subparagraph (C) thereof). (e) Certain Employees.--Employees shall not be included within any project under this section if such employees are-- (1) neither managers nor supervisors; and (2) within a unit with respect to which a labor organization is accorded exclusive recognition under chapter 71 of title 5, United States Code. Notwithstanding the preceding sentence, an aggrieved employee within a unit (referred to in paragraph (2)) may elect to participate in a complaint procedure developed under the demonstration project in lieu of any negotiated grievance procedure and any statutory procedure (as such term is used in section 7121 of such title 5). (f) Reports.--The General Accounting Office shall prepare and submit to the Committees on Government Reform and the Judiciary of the House of Representatives and the Committees on Governmental Affairs and the Judiciary of the Senate periodic reports on any demonstration project conducted under this section, such reports to be submitted after the second and fourth years of its operation. Upon request, the Attorney General or the Secretary shall furnish such information as the General Accounting Office may require to carry out this subsection. (g) Definition.--In this section, the term ``covered entity'' has the meaning given such term in section 472(a)(2). SEC. 474. [6 U.S.C. 294] SENSE OF CONGRESS. It is the sense of Congress that-- (1) the missions of the Bureau of Border Security and the Bureau of Citizenship and Immigration Services are equally important and, accordingly, they each should be adequately funded; and (2) the functions transferred under this subtitle should not, after such transfers take effect, operate at levels below those in effect prior to the enactment of this Act. SEC. 475. [6 U.S.C. 295] DIRECTOR OF SHARED SERVICES. (a) In General.--Within the Office of Deputy Secretary, there shall be a Director of Shared Services. (b) Functions.--The Director of Shared Services shall be responsible for the coordination of resources for the Bureau of Border Security and the Bureau of Citizenship and Immigration Services, including-- (1) information resources management, including computer databases and information technology; (2) records and file management; and (3) forms management. SEC. 476. [6 U.S.C. 296] SEPARATION OF FUNDING. (a) In General.--There shall be established separate accounts in the Treasury of the United States for appropriated funds and other deposits available for the Bureau of Citizenship and Immigration Services and the Bureau of Border Security. (b) Separate Budgets.--To ensure that the Bureau of Citizenship and Immigration Services and the Bureau of Border Security are funded to the extent necessary to fully carry out their respective functions, the Director of the Office of Management and Budget shall separate the budget requests for each such entity. (c) Fees.--Fees imposed for a particular service, application, or benefit shall be deposited into the account established under subsection (a) that is for the bureau with jurisdiction over the function to which the fee relates. (d) Fees Not Transferable.--No fee may be transferred between the Bureau of Citizenship and Immigration Services and the Bureau of Border Security for purposes not authorized by section 286 of the Immigration and Nationality Act (8 U.S.C. 1356). SEC. 477. [6 U.S.C. 297] REPORTS AND IMPLEMENTATION PLANS. (a) Division of Funds.--The Secretary, not later than 120 days after the effective date of this Act, shall submit to the Committees on Appropriations and the Judiciary of the House of Representatives and of the Senate a report on the proposed division and transfer of funds, including unexpended funds, appropriations, and fees, between the Bureau of Citizenship and Immigration Services and the Bureau of Border Security. (b) Division of Personnel.--The Secretary, not later than 120 days after the effective date of this Act, shall submit to the Committees on Appropriations and the Judiciary of the House of Representatives and of the Senate a report on the proposed division of personnel between the Bureau of Citizenship and Immigration Services and the Bureau of Border Security. (c) Implementation Plan.-- (1) In general.--The Secretary, not later than 120 days after the effective date of this Act, and every 6 months thereafter until the termination of fiscal year 2005, shall submit to the Committees on Appropriations and the Judiciary of the House of Representatives and of the Senate an implementation plan to carry out this Act. (2) Contents.--The implementation plan should include details concerning the separation of the Bureau of Citizenship and Immigration Services and the Bureau of Border Security, including the following: (A) Organizational structure, including the field structure. (B) Chain of command. (C) Procedures for interaction among such bureaus. (D) Fraud detection and investigation. (E) The processing and handling of removal proceedings, including expedited removal and applications for relief from removal. (F) Recommendations for conforming amendments to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.). (G) Establishment of a transition team. (H) Methods to phase in the costs of separating the administrative support systems of the Immigration and Naturalization Service in order to provide for separate administrative support systems for the Bureau of Citizenship and Immigration Services and the Bureau of Border Security. (d) Comptroller General Studies and Reports.-- (1) Status reports on transition.--Not later than 18 months after the date on which the transfer of functions specified under section 441 takes effect, and every 6 months thereafter, until full implementation of this subtitle has been completed, the Comptroller General of the United States shall submit to the Committees on Appropriations and on the Judiciary of the House of Representatives and the Senate a report containing the following: (A) A determination of whether the transfers of functions made by subtitles D and E have been completed, and if a transfer of functions has not taken place, identifying the reasons why the transfer has not taken place. (B) If the transfers of functions made by subtitles D and E have been completed, an identification of any issues that have arisen due to the completed transfers. (C) An identification of any issues that may arise due to any future transfer of functions. (2) Report on management.--Not later than 4 years after the date on which the transfer of functions specified under section 441 takes effect, the Comptroller General of the United States shall submit to the Committees on Appropriations and on the Judiciary of the House of Representatives and the Senate a report, following a study, containing the following: (A) Determinations of whether the transfer of functions from the Immigration and Naturalization Service to the Bureau of Citizenship and Immigration Services and the Bureau of Border Security have improved, with respect to each function transferred, the following: (i) Operations. (ii) Management, including accountability and communication. (iii) Financial administration. (iv) Recordkeeping, including information management and technology. (B) A statement of the reasons for the determinations under subparagraph (A). (C) Any recommendations for further improvements to the Bureau of Citizenship and Immigration Services and the Bureau of Border Security. (3) Report on fees.--Not later than 1 year after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate a report examining whether the Bureau of Citizenship and Immigration Services is likely to derive sufficient funds from fees to carry out its functions in the absence of appropriated funds. SEC. 478. [6 U.S.C. 298] IMMIGRATION FUNCTIONS. (a) Annual Report.-- (1) In general.--One year after the date of the enactment of this Act, and each year thereafter, the Secretary shall submit a report to the President, to the Committees on the Judiciary and Government Reform of the House of Representatives, and to the Committees on the Judiciary and Government Affairs of the Senate, on the impact the transfers made by this subtitle has had on immigration functions. (2) Matter included.--The report shall address the following with respect to the period covered by the report: (A) The aggregate number of all immigration applications and petitions received, and processed, by the Department. (B) Region-by-region statistics on the aggregate number of immigration applications and petitions filed by an alien (or filed on behalf of an alien) and denied, disaggregated by category of denial and application or petition type. (C) The quantity of backlogged immigration applications and petitions that have been processed, the aggregate number awaiting processing, and a detailed plan for eliminating the backlog. (D) The average processing period for immigration applications and petitions, disaggregated by application or petition type. (E) The number and types of immigration- related grievances filed with any official of the Department of Justice, and if those grievances were resolved. (F) Plans to address grievances and improve immigration services. (G) Whether immigration-related fees were used consistent with legal requirements regarding such use. (H) Whether immigration-related questions conveyed by customers to the Department (whether conveyed in person, by telephone, or by means of the Internet) were answered effectively and efficiently. (b) Sense of Congress Regarding Immigration Services.--It is the sense of Congress that-- (1) the quality and efficiency of immigration services rendered by the Federal Government should be improved after the transfers made by this subtitle take effect; and (2) the Secretary should undertake efforts to guarantee that concerns regarding the quality and efficiency of immigration services are addressed after such effective date. TITLE V--NATIONAL EMERGENCY MANAGEMENT SEC. 501. [6 U.S.C. 311] DEFINITIONS. In this title-- (1) the term ``Administrator'' means the Administrator of the Agency; (2) the term ``Agency'' means the Federal Emergency Management Agency; (3) the term ``catastrophic incident'' means any natural disaster, act of terrorism, or other man-made disaster that results in extraordinary levels of casualties or damage or disruption severely affecting the population (including mass evacuations), infrastructure, environment, economy, national morale, or government functions in an area; (4) the terms ``credentialed'' and ``credentialing'' mean having provided, or providing, respectively, documentation that identifies personnel and authenticates and verifies the qualifications of such personnel by ensuring that such personnel possess a minimum common level of training, experience, physical and medical fitness, and capability appropriate for a particular position in accordance with standards created under section 510; (5) the term ``Federal coordinating officer'' means a Federal coordinating officer as described in section 302 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5143); (6) the term ``interoperable'' has the meaning given the term ``interoperable communications'' under section 7303(g)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(g)(1)); (7) the term ``National Incident Management System'' means a system to enable effective, efficient, and collaborative incident management; (8) the term ``National Response Plan'' means the National Response Plan or any successor plan prepared under section 502(a)(6); (9) the term ``Regional Administrator'' means a Regional Administrator appointed under section 507; (10) the term ``Regional Office'' means a Regional Office established under section 507; (11) the term ``resources'' means personnel and major items of equipment, supplies, and facilities available or potentially available for responding to a natural disaster, act of terrorism, or other man-made disaster; (12) the term ``surge capacity'' means the ability to rapidly and substantially increase the provision of search and rescue capabilities, food, water, medicine, shelter and housing, medical care, evacuation capacity, staffing (including disaster assistance employees), and other resources necessary to save lives and protect property during a catastrophic incident; (13) the term ``tribal government'' means the government of any entity described in section 2(11)(B); and (14) the terms ``typed'' and ``typing'' mean having evaluated, or evaluating, respectively, a resource in accordance with standards created under section 510. SEC. 502. [6 U.S.C. 312] DEFINITION. In this title, the term ``Nuclear Incident Response Team'' means a resource that includes-- (1) those entities of the Department of Energy that perform nuclear or radiological emergency support functions (including accident response, search response, advisory, and technical operations functions), radiation exposure functions at the medical assistance facility known as the Radiation Emergency Assistance Center/Training Site (REAC/TS), radiological assistance functions, and related functions; and (2) those entities of the Environmental Protection Agency that perform such support functions (including radiological emergency response functions) and related functions. SEC. 503. [6 U.S.C. 313] FEDERAL EMERGENCY MANAGEMENT AGENCY. (a) In General.--There is in the Department the Federal Emergency Management Agency, headed by an Administrator. (b) Mission.-- (1) Primary mission.--The primary mission of the Agency is to reduce the loss of life and property and protect the Nation from all hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation. (2) Specific activities.--In support of the primary mission of the Agency, the Administrator shall-- (A) lead the Nation's efforts to prepare for, protect against, respond to, recover from, and mitigate against the risk of natural disasters, acts of terrorism, and other man- made disasters, including catastrophic incidents; (B) partner with State, local, and tribal governments and emergency response providers, with other Federal agencies, with the private sector, and with nongovernmental organizations to build a national system of emergency management that can effectively and efficiently utilize the full measure of the Nation's resources to respond to natural disasters, acts of terrorism, and other man-made disasters, including catastrophic incidents; (C) develop a Federal response capability that, when necessary and appropriate, can act effectively and rapidly to deliver assistance essential to saving lives or protecting or preserving property or public health and safety in a natural disaster, act of terrorism, or other man-made disaster; (D) integrate the Agency's emergency preparedness, protection, response, recovery, and mitigation responsibilities to confront effectively the challenges of a natural disaster, act of terrorism, or other man-made disaster; (E) develop and maintain robust Regional Offices that will work with State, local, and tribal governments, emergency response providers, and other appropriate entities to identify and address regional priorities; (F) under the leadership of the Secretary, coordinate with the Commandant of the Coast Guard, the Director of Customs and Border Protection, the Director of Immigration and Customs Enforcement, the National Operations Center, and other agencies and offices in the Department to take full advantage of the substantial range of resources in the Department; (G) provide funding, training, exercises, technical assistance, planning, and other assistance to build tribal, local, State, regional, and national capabilities (including communications capabilities), necessary to respond to a natural disaster, act of terrorism, or other man-made disaster; and (H) develop and coordinate the implementation of a risk-based, all-hazards strategy for preparedness that builds those common capabilities necessary to respond to natural disasters, acts of terrorism, and other man-made disasters while also building the unique capabilities necessary to respond to specific types of incidents that pose the greatest risk to our Nation. (c) Administrator.-- (1) In general.--The Administrator shall be appointed by the President, by and with the advice and consent of the Senate. (2) Qualifications.--The Administrator shall be appointed from among individuals who have-- (A) a demonstrated ability in and knowledge of emergency management and homeland security; and (B) not less than 5 years of executive leadership and management experience in the public or private sector. (3) Reporting.--The Administrator shall report to the Secretary, without being required to report through any other official of the Department. (4) Principal advisor on emergency management.-- (A) In general.--The Administrator is the principal advisor to the President, the Homeland Security Council, and the Secretary for all matters relating to emergency management in the United States. (B) Advice and recommendations.-- (i) In general.--In presenting advice with respect to any matter to the President, the Homeland Security Council, or the Secretary, the Administrator shall, as the Administrator considers appropriate, inform the President, the Homeland Security Council, or the Secretary, as the case may be, of the range of emergency preparedness, protection, response, recovery, and mitigation options with respect to that matter. (ii) Advice on request.--The Administrator, as the principal advisor on emergency management, shall provide advice to the President, the Homeland Security Council, or the Secretary on a particular matter when the President, the Homeland Security Council, or the Secretary requests such advice. (iii) Recommendations to congress.--After informing the Secretary, the Administrator may make such recommendations to Congress relating to emergency management as the Administrator considers appropriate. (5) Cabinet status.-- (A) In general.--The President may designate the Administrator to serve as a member of the Cabinet in the event of natural disasters, acts of terrorism, or other man-made disasters. (B) Retention of authority.--Nothing in this paragraph shall be construed as affecting the authority of the Secretary under this Act. SEC. 504. [6 U.S.C. 314] AUTHORITY AND RESPONSIBILITIES. (a) In General.--The Administrator shall provide Federal leadership necessary to prepare for, protect against, respond to, recover from, or mitigate against a natural disaster, act of terrorism, or other man-made disaster, including-- (1) helping to ensure the effectiveness of emergency response providers to terrorist attacks, major disasters, and other emergencies; (2) with respect to the Nuclear Incident Response Team (regardless of whether it is operating as an organizational unit of the Department pursuant to this title)-- (A) establishing standards and certifying when those standards have been met; (B) conducting joint and other exercises and training and evaluating performance; and (C) providing funds to the Department of Energy and the Environmental Protection Agency, as appropriate, for homeland security planning, exercises and training, and equipment; (3) providing the Federal Government's response to terrorist attacks and major disasters, including-- (A) managing such response; (B) directing the Domestic Emergency Support Team, the National Disaster Medical System, \1\ and (when operating as an organizational unit of the Department pursuant to this title) the Nuclear Incident Response Team; --------------------------------------------------------------------------- \1\ The phrase ``, the National Disaster Medical System,'' in subsection (a)(3)(B) probably should not appear. Section 301(c)(1) of Public Law 109-417 (120 Stat. 2854) provides for an amendment to the Homeland Security Act of 2002 as follows: (1) in section 502(3)(B), by striking ``, the National --------------------------------------------------------------------------- Disaster Medical System,''; and The amendment was not executed because section 502 of the Homeland Security Act of 2002 was redesignated as section 504 by section 611(8) of Public Law 109-295 (120 Stat 1395). --------------------------------------------------------------------------- (C) overseeing the Metropolitan Medical Response System; and (D) coordinating other Federal response resources, including requiring deployment of the Strategic National Stockpile, in the event of a terrorist attack or major disaster; (4) aiding the recovery from terrorist attacks and major disasters; (5) building a comprehensive national incident management system with Federal, State, and local government personnel, agencies, and authorities, to respond to such attacks and disasters; (6) consolidating existing Federal Government emergency response plans into a single, coordinated national response plan; (7) helping ensure the acquisition of operable and interoperable communications capabilities by Federal, State, local, and tribal governments and emergency response providers; (8) assisting the President in carrying out the functions under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) and carrying out all functions and authorities given to the Administrator under that Act; (9) carrying out the mission of the Agency to reduce the loss of life and property and protect the Nation from all hazards by leading and supporting the Nation in a risk-based, comprehensive emergency management system of-- (A) mitigation, by taking sustained actions to reduce or eliminate long-term risks to people and property from hazards and their effects; (B) preparedness, by planning, training, and building the emergency management profession to prepare effectively for, mitigate against, respond to, and recover from any hazard; (C) response, by conducting emergency operations to save lives and property through positioning emergency equipment, personnel, and supplies, through evacuating potential victims, through providing food, water, shelter, and medical care to those in need, and through restoring critical public services; and (D) recovery, by rebuilding communities so individuals, businesses, and governments can function on their own, return to normal life, and protect against future hazards; (10) increasing efficiencies, by coordinating efforts relating to preparedness, protection, response, recovery, and mitigation; (11) helping to ensure the effectiveness of emergency response providers in responding to a natural disaster, act of terrorism, or other man-made disaster; (12) supervising grant programs administered by the Agency; (13) administering and ensuring the implementation of the National Response Plan, including coordinating and ensuring the readiness of each emergency support function under the National Response Plan; (14) coordinating with the National Advisory Council established under section 508; (15) preparing and implementing the plans and programs of the Federal Government for-- (A) continuity of operations; (B) continuity of government; and (C) continuity of plans; (16) minimizing, to the extent practicable, overlapping planning and reporting requirements applicable to State, local, and tribal governments and the private sector; (17) maintaining and operating within the Agency the National Response Coordination Center or its successor; (18) developing a national emergency management system that is capable of preparing for, protecting against, responding to, recovering from, and mitigating against catastrophic incidents; (19) assisting the President in carrying out the functions under the national preparedness goal and the national preparedness system and carrying out all functions and authorities of the Administrator under the national preparedness System; (20) carrying out all authorities of the Federal Emergency Management Agency and the Directorate of Preparedness of the Department as transferred under section 505; and (21) otherwise carrying out the mission of the Agency as described in section 503(b). (b) All-Hazards Approach.--In carrying out the responsibilities under this section, the Administrator shall coordinate the implementation of a risk-based, all-hazards strategy that builds those common capabilities necessary to prepare for, protect against, respond to, recover from, or mitigate against natural disasters, acts of terrorism, and other man-made disasters, while also building the unique capabilities necessary to prepare for, protect against, respond to, recover from, or mitigate against the risks of specific types of incidents that pose the greatest risk to the Nation. SEC. 505. [6 U.S.C. 315] FUNCTIONS TRANSFERRED. (a) In General.--Except as provided in subsection (b), there are transferred to the Agency the following: (1) All functions of the Federal Emergency Management Agency, including existing responsibilities for emergency alert systems and continuity of operations and continuity of government plans and programs as constituted on June 1, 2006, including all of its personnel, assets, components, authorities, grant programs, and liabilities, and including the functions of the Under Secretary for Federal Emergency Management relating thereto. (2) The Directorate of Preparedness, as constituted on June 1, 2006, including all of its functions, personnel, assets, components, authorities, grant programs, and liabilities, and including the functions of the Under Secretary for Preparedness relating thereto. (b) Exceptions.--The following within the Preparedness Directorate shall not be transferred: (1) The Office of Infrastructure Protection. (2) The National Communications System. (3) The National Cybersecurity Division. (4) The Office of the Chief Medical Officer. (5) The functions, personnel, assets, components, authorities, and liabilities of each component described under paragraphs (1) through (4). SEC. 506. [6 U.S.C. 316] PRESERVING THE FEDERAL EMERGENCY MANAGEMENT AGENCY. (a) Distinct Entity.--The Agency shall be maintained as a distinct entity within the Department. (b) Reorganization.--Section 872 shall not apply to the Agency, including any function or organizational unit of the Agency. (c) Prohibition on Changes to Missions.-- (1) In general.--The Secretary may not substantially or significantly reduce the authorities, responsibilities, or functions of the Agency or the capability of the Agency to perform those missions, authorities, responsibilities, except as otherwise specifically provided in an Act enacted after the date of enactment of the Post-Katrina Emergency Management Reform Act of 2006. (2) Certain transfers prohibited.--No asset, function, or mission of the Agency may be diverted to the principal and continuing use of any other organization, unit, or entity of the Department, except for details or assignments that do not reduce the capability of the Agency to perform its missions. (d) Reprogramming and Transfer of Funds.--In reprogramming or transferring funds, the Secretary shall comply with any applicable provisions of any Act making appropriations for the Department for fiscal year 2007, or any succeeding fiscal year, relating to the reprogramming or transfer of funds. SEC. 507. [6 U.S.C. 317] REGIONAL OFFICES. (a) In General.--There are in the Agency 10 regional offices, as identified by the Administrator. (b) Management of Regional Offices.-- (1) Regional administrator.--Each Regional Office shall be headed by a Regional Administrator who shall be appointed by the Administrator, after consulting with State, local, and tribal government officials in the region. Each Regional Administrator shall report directly to the Administrator and be in the Senior Executive Service. (2) Qualifications.-- (A) In general.--Each Regional Administrator shall be appointed from among individuals who have a demonstrated ability in and knowledge of emergency management and homeland security. (B) Considerations.--In selecting a Regional Administrator for a Regional Office, the Administrator shall consider the familiarity of an individual with the geographical area and demographic characteristics of the population served by such Regional Office. (c) Responsibilities.-- (1) In general.--The Regional Administrator shall work in partnership with State, local, and tribal governments, emergency managers, emergency response providers, medical providers, the private sector, nongovernmental organizations, multijurisdictional councils of governments, and regional planning commissions and organizations in the geographical area served by the Regional Office to carry out the responsibilities of a Regional Administrator under this section. (2) Responsibilities.--The responsibilities of a Regional Administrator include-- (A) ensuring effective, coordinated, and integrated regional preparedness, protection, response, recovery, and mitigation activities and programs for natural disasters, acts of terrorism, and other man-made disasters (including planning, training, exercises, and professional development); (B) assisting in the development of regional capabilities needed for a national catastrophic response system; (C) coordinating the establishment of effective regional operable and interoperable emergency communications capabilities; (D) staffing and overseeing 1 or more strike teams within the region under subsection (f), to serve as the focal point of the Federal Government's initial response efforts for natural disasters, acts of terrorism, and other man-made disasters within that region, and otherwise building Federal response capabilities to respond to natural disasters, acts of terrorism, and other man-made disasters within that region; (E) designating an individual responsible for the development of strategic and operational regional plans in support of the National Response Plan; (F) fostering the development of mutual aid and other cooperative agreements; (G) identifying critical gaps in regional capabilities to respond to populations with special needs; (H) maintaining and operating a Regional Response Coordination Center or its successor; (I) coordinating with the private sector to help ensure private sector preparedness for natural disasters, acts of terrorism, and other man-made disasters; (J) assisting State, local, and tribal governments, where appropriate, to preidentify and evaluate suitable sites where a multijurisdictional incident command system may quickly be established and operated from, if the need for such a system arises; and (K) performing such other duties relating to such responsibilities as the Administrator may require. (3) Training and exercise requirements.-- (A) Training.--The Administrator shall require each Regional Administrator to undergo specific training periodically to complement the qualifications of the Regional Administrator. Such training, as appropriate, shall include training with respect to the National Incident Management System, the National Response Plan, and such other subjects as determined by the Administrator. (B) Exercises.--The Administrator shall require each Regional Administrator to participate as appropriate in regional and national exercises. (d) Area Offices.-- (1) In general.--There is an Area Office for the Pacific and an Area Office for the Caribbean, as components in the appropriate Regional Offices. (2) Alaska.--The Administrator shall establish an Area Office in Alaska, as a component in the appropriate Regional Office. (e) Regional Advisory Council.-- (1) Establishment.--Each Regional Administrator shall establish a Regional Advisory Council. (2) Nominations.--A State, local, or tribal government located within the geographic area served by the Regional Office may nominate officials, including Adjutants General and emergency managers, to serve as members of the Regional Advisory Council for that region. (3) Responsibilities.--Each Regional Advisory Council shall-- (A) advise the Regional Administrator on emergency management issues specific to that region; (B) identify any geographic, demographic, or other characteristics peculiar to any State, local, or tribal government within the region that might make preparedness, protection, response, recovery, or mitigation more complicated or difficult; and (C) advise the Regional Administrator of any weaknesses or deficiencies in preparedness, protection, response, recovery, and mitigation for any State, local, and tribal government within the region of which the Regional Advisory Council is aware. (f) Regional Office Strike Teams.-- (1) In general.--In coordination with other relevant Federal agencies, each Regional Administrator shall oversee multi-agency strike teams authorized under section 303 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5144) that shall consist of-- (A) a designated Federal coordinating officer; (B) personnel trained in incident management; (C) public affairs, response and recovery, and communications support personnel; (D) a defense coordinating officer; (E) liaisons to other Federal agencies; (F) such other personnel as the Administrator or Regional Administrator determines appropriate; and (G) individuals from the agencies with primary responsibility for each of the emergency support functions in the National Response Plan. (2) Other duties.--The duties of an individual assigned to a Regional Office strike team from another relevant agency when such individual is not functioning as a member of the strike team shall be consistent with the emergency preparedness activities of the agency that employs such individual. (3) Location of members.--The members of each Regional Office strike team, including representatives from agencies other than the Department, shall be based primarily within the region that corresponds to that strike team. (4) Coordination.--Each Regional Office strike team shall coordinate the training and exercises of that strike team with the State, local, and tribal governments and private sector and nongovernmental entities which the strike team shall support when a natural disaster, act of terrorism, or other man-made disaster occurs. (5) Preparedness.--Each Regional Office strike team shall be trained as a unit on a regular basis and equipped and staffed to be well prepared to respond to natural disasters, acts of terrorism, and other man- made disasters, including catastrophic incidents. (6) Authorities.--If the Administrator determines that statutory authority is inadequate for the preparedness and deployment of individuals in strike teams under this subsection, the Administrator shall report to Congress regarding the additional statutory authorities that the Administrator determines are necessary. SEC. 508. [6 U.S.C. 318] NATIONAL ADVISORY COUNCIL. (a) Establishment.--Not later than 60 days after the date of enactment of the Post-Katrina Emergency Management Reform Act of 2006, the Secretary shall establish an advisory body under section 871(a) to ensure effective and ongoing coordination of Federal preparedness, protection, response, recovery, and mitigation for natural disasters, acts of terrorism, and other man-made disasters, to be known as the National Advisory Council. (b) Responsibilities.-- (1) In general.--The National Advisory Council shall advise the Administrator on all aspects of emergency management. The National Advisory Council shall incorporate State, local, and tribal government and private sector input in the development and revision of the national preparedness goal, the national preparedness system, the National Incident Management System, the National Response Plan, and other related plans and strategies. (2) Consultation on grants.--To ensure input from and coordination with State, local, and tribal governments and emergency response providers, the Administrator shall regularly consult and work with the National Advisory Council on the administration and assessment of grant programs administered by the Department, including with respect to the development of program guidance and the development and evaluation of risk-assessment methodologies, as appropriate. (c) Membership.-- (1) In general.--The members of the National Advisory Council shall be appointed by the Administrator, and shall, to the extent practicable, represent a geographic (including urban and rural) and substantive cross section of officials, emergency managers, and emergency response providers from State, local, and tribal governments, the private sector, and nongovernmental organizations, including as appropriate-- (A) members selected from the emergency management field and emergency response providers, including fire service, law enforcement, hazardous materials response, emergency medical services, and emergency management personnel, or organizations representing such individuals; (B) health scientists, emergency and inpatient medical providers, and public health professionals; (C) experts from Federal, State, local, and tribal governments, and the private sector, representing standards-setting and accrediting organizations, including representatives from the voluntary consensus codes and standards development community, particularly those with expertise in the emergency preparedness and response field; (D) State, local, and tribal government officials with expertise in preparedness, protection, response, recovery, and mitigation, including Adjutants General; (E) elected State, local, and tribal government executives; (F) experts in public and private sector infrastructure protection, cybersecurity, and communications; (G) representatives of individuals with disabilities and other populations with special needs; and (H) such other individuals as the Administrator determines to be appropriate. (2) Coordination with the departments of health and human services and transportation.--In the selection of members of the National Advisory Council who are health or emergency medical services professionals, the Administrator shall work with the Secretary of Health and Human Services and the Secretary of Transportation. (3) Ex officio members.--The Administrator shall designate 1 or more officers of the Federal Government to serve as ex officio members of the National Advisory Council. (4) Terms of office.-- (A) In general.--Except as provided in subparagraph (B), the term of office of each member of the National Advisory Council shall be 3 years. (B) Initial appointments.--Of the members initially appointed to the National Advisory Council-- (i) one-third shall be appointed for a term of 1 year; and (ii) one-third shall be appointed for a term of 2 years. (d) Applicability of Federal Advisory Committee Act.-- (1) In general.--Notwithstanding section 871(a) and subject to paragraph (2), the Federal Advisory Committee Act (5 U.S.C. App.), including subsections (a), (b), and (d) of section 10 of such Act, and section 552b(c) of title 5, United States Code, shall apply to the National Advisory Council. (2) Termination.--Section 14(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the National Advisory Council. SEC. 509. [6 U.S.C. 319] NATIONAL INTEGRATION CENTER. (a) In General.--There is established in the Agency a National Integration Center. (b) Responsibilities.-- (1) In general.--The Administrator, through the National Integration Center, and in consultation with other Federal departments and agencies and the National Advisory Council, shall ensure ongoing management and maintenance of the National Incident Management System, the National Response Plan, and any successor to such system or plan. (2) Specific responsibilities.--The National Integration Center shall periodically review, and revise as appropriate, the National Incident Management System and the National Response Plan, including-- (A) establishing, in consultation with the Director of the Corporation for National and Community Service, a process to better use volunteers and donations; (B) improving the use of Federal, State, local, and tribal resources and ensuring the effective use of emergency response providers at emergency scenes; and (C) revising the Catastrophic Incident Annex, finalizing and releasing the Catastrophic Incident Supplement to the National Response Plan, and ensuring that both effectively address response requirements in the event of a catastrophic incident. (c) Incident Management.-- (1) In general.-- (A) National response plan.--The Secretary, acting through the Administrator, shall ensure that the National Response Plan provides for a clear chain of command to lead and coordinate the Federal response to any natural disaster, act of terrorism, or other man-made disaster. (B) Administrator.--The chain of the command specified in the National Response Plan shall-- (i) provide for a role for the Administrator consistent with the role of the Administrator as the principal emergency management advisor to the President, the Homeland Security Council, and the Secretary under section 503(c)(4) and the responsibility of the Administrator under the Post-Katrina Emergency Management Reform Act of 2006, and the amendments made by that Act, relating to natural disasters, acts of terrorism, and other man-made disasters; and (ii) provide for a role for the Federal Coordinating Officer consistent with the responsibilities under section 302(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5143(b)). (2) Principal federal official.--The Principal Federal Official (or the successor thereto) shall not-- (A) direct or replace the incident command structure established at the incident; or (B) have directive authority over the Senior Federal Law Enforcement Official, Federal Coordinating Officer, or other Federal and State officials. SEC. 510. [6 U.S.C. 320] CREDENTIALING AND TYPING. (a) In General.--The Administrator shall enter into a memorandum of understanding with the administrators of the Emergency Management Assistance Compact, State, local, and tribal governments, and organizations that represent emergency response providers, to collaborate on developing standards for deployment capabilities, including for credentialing and typing of incident management personnel, emergency response providers, and other personnel (including temporary personnel) and resources likely needed to respond to natural disasters, acts of terrorism, and other man-made disasters. (b) Distribution.-- (1) In general.--Not later than 1 year after the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, the Administrator shall provide the standards developed under subsection (a), including detailed written guidance, to-- (A) each Federal agency that has responsibilities under the National Response Plan to aid that agency with credentialing and typing incident management personnel, emergency response providers, and other personnel (including temporary personnel) and resources likely needed to respond to a natural disaster, act of terrorism, or other man-made disaster; and (B) State, local, and tribal governments, to aid such governments with credentialing and typing of State, local, and tribal incident management personnel, emergency response providers, and other personnel (including temporary personnel) and resources likely needed to respond to a natural disaster, act of terrorism, or other man-made disaster. (2) Assistance.--The Administrator shall provide expertise and technical assistance to aid Federal, State, local, and tribal government agencies with credentialing and typing incident management personnel, emergency response providers, and other personnel (including temporary personnel) and resources likely needed to respond to a natural disaster, act of terrorism, or other man-made disaster. (c) Credentialing and Typing of Personnel.--Not later than 6 months after receiving the standards provided under subsection (b), each Federal agency with responsibilities under the National Response Plan shall ensure that incident management personnel, emergency response providers, and other personnel (including temporary personnel) and resources likely needed to respond to a natural disaster, act of terrorism, or other manmade disaster are credentialed and typed in accordance with this section. (d) Consultation on Health Care Standards.--In developing standards for credentialing health care professionals under this section, the Administrator shall consult with the Secretary of Health and Human Services. SEC. 511. [6 U.S.C. 321] THE NATIONAL INFRASTRUCTURE SIMULATION AND ANALYSIS CENTER. (a) Definition.--In this section, the term ``National Infrastructure Simulation and Analysis Center'' means the National Infrastructure Simulation and Analysis Center established under section 1016(d) of the USA PATRIOT Act (42 U.S.C. 5195c(d)). (b) Authority.-- (1) In general.--There is in the Department the National Infrastructure Simulation and Analysis Center which shall serve as a source of national expertise to address critical infrastructure protection and continuity through support for activities related to-- (A) counterterrorism, threat assessment, and risk mitigation; and (B) a natural disaster, act of terrorism, or other man-made disaster. (2) Infrastructure modeling.-- (A) Particular support.--The support provided under paragraph (1) shall include modeling, simulation, and analysis of the systems and assets comprising critical infrastructure, in order to enhance preparedness, protection, response, recovery, and mitigation activities. (B) Relationship with other agencies.--Each Federal agency and department with critical infrastructure responsibilities under Homeland Security Presidential Directive 7, or any successor to such directive, shall establish a formal relationship, including an agreement regarding information sharing, between the elements of such agency or department and the National Infrastructure Simulation and Analysis Center, through the Department. (C) Purpose.-- (i) In general.--The purpose of the relationship under subparagraph (B) shall be to permit each Federal agency and department described in subparagraph (B) to take full advantage of the capabilities of the National Infrastructure Simulation and Analysis Center (particularly vulnerability and consequence analysis), consistent with its work load capacity and priorities, for real-time response to reported and projected natural disasters, acts of terrorism, and other man-made disasters. (ii) Recipient of certain support.--Modeling, simulation, and analysis provided under this subsection shall be provided to relevant Federal agencies and departments, including Federal agencies and departments with critical infrastructure responsibilities under Homeland Security Presidential Directive 7, or any successor to such directive. SEC. 512. [6 U.S.C. 321A] EVACUATION PLANS AND EXERCISES. (a) In General.--Notwithstanding any other provision of law, and subject to subsection (d), grants made to States or local or tribal governments by the Department through the State Homeland Security Grant Program or the Urban Area Security Initiative may be used to-- (1) establish programs for the development and maintenance of mass evacuation plans under subsection (b) in the event of a natural disaster, act of terrorism, or other man-made disaster; (2) prepare for the execution of such plans, including the development of evacuation routes and the purchase and stockpiling of necessary supplies and shelters; and (3) conduct exercises of such plans. (b) Plan Development.--In developing the mass evacuation plans authorized under subsection (a), each State, local, or tribal government shall, to the maximum extent practicable-- (1) establish incident command and decision making processes; (2) ensure that State, local, and tribal government plans, including evacuation routes, are coordinated and integrated; (3) identify primary and alternative evacuation routes and methods to increase evacuation capabilities along such routes such as conversion of two-way traffic to one-way evacuation routes; (4) identify evacuation transportation modes and capabilities, including the use of mass and public transit capabilities, and coordinating and integrating evacuation plans for all populations including for those individuals located in hospitals, nursing homes, and other institutional living facilities; (5) develop procedures for informing the public of evacuation plans before and during an evacuation, including individuals-- (A) with disabilities or other special needs, including the elderly; (B) with limited English proficiency; or (C) who might otherwise have difficulty in obtaining such information; and (6) identify shelter locations and capabilities. (c) Assistance.-- (1) In general.--The Administrator may establish any guidelines, standards, or requirements determined appropriate to administer this section and to ensure effective mass evacuation planning for State, local, and tribal areas. (2) Requested assistance.--The Administrator shall make assistance available upon request of a State, local, or tribal government to assist hospitals, nursing homes, and other institutions that house individuals with special needs to establish, maintain, and exercise mass evacuation plans that are coordinated and integrated into the plans developed by that State, local, or tribal government under this section. (d) Multipurpose Funds.--Nothing in this section may be construed to preclude a State, local, or tribal government from using grant funds in a manner that enhances preparedness for a natural or man-made disaster unrelated to an act of terrorism, if such use assists such government in building capabilities for terrorism preparedness. SEC. 513. [6 U.S.C. 321B] DISABILITY COORDINATOR. (a) In General.--After consultation with organizations representing individuals with disabilities, the National Council on Disabilities, and the Interagency Coordinating Council on Preparedness and Individuals with Disabilities, established under Executive Order No. 13347 (6 U.S.C. 312 note), the Administrator shall appoint a Disability Coordinator. The Disability Coordinator shall report directly to the Administrator, in order to ensure that the needs of individuals with disabilities are being properly addressed in emergency preparedness and disaster relief. (b) Responsibilities.--The Disability Coordinator shall be responsible for-- (1) providing guidance and coordination on matters related to individuals with disabilities in emergency planning requirements and relief efforts in the event of a natural disaster, act of terrorism, or other man- made disaster; (2) interacting with the staff of the Agency, the National Council on Disabilities, the Interagency Coordinating Council on Preparedness and Individuals with Disabilities established under Executive Order No. 13347 (6 U.S.C. 312 note), other agencies of the Federal Government, and State, local, and tribal government authorities regarding the needs of individuals with disabilities in emergency planning requirements and relief efforts in the event of a natural disaster, act of terrorism, or other man-made disaster; (3) consulting with organizations that represent the interests and rights of individuals with disabilities about the needs of individuals with disabilities in emergency planning requirements and relief efforts in the event of a natural disaster, act of terrorism, or other man-made disaster; (4) ensuring the coordination and dissemination of best practices and model evacuation plans for individuals with disabilities; (5) ensuring the development of training materials and a curriculum for training of emergency response providers, State, local, and tribal government officials, and others on the needs of individuals with disabilities; (6) promoting the accessibility of telephone hotlines and websites regarding emergency preparedness, evacuations, and disaster relief; (7) working to ensure that video programming distributors, including broadcasters, cable operators, and satellite television services, make emergency information accessible to individuals with hearing and vision disabilities; (8) ensuring the availability of accessible transportation options for individuals with disabilities in the event of an evacuation; (9) providing guidance and implementing policies to ensure that the rights and wishes of individuals with disabilities regarding post-evacuation residency and relocation are respected; (10) ensuring that meeting the needs of individuals with disabilities are included in the components of the national preparedness system established under section 644 of the Post-Katrina Emergency Management Reform Act of 2006; and (11) any other duties as assigned by the Administrator. SEC. 514. [6 U.S.C. 321C] DEPARTMENT AND AGENCY OFFICIALS. (a) Deputy Administrators.--The President may appoint, by and with the advice and consent of the Senate, not more than 4 Deputy Administrators to assist the Administrator in carrying out this title. (b) Cybersecurity and Communications.--There is in the Department an Assistant Secretary for Cybersecurity and Communications. (c) United States Fire Administration.--The Administrator of the United States Fire Administration shall have a rank equivalent to an assistant secretary of the Department. SEC. 515. [6 U.S.C. 321D] NATIONAL OPERATIONS CENTER. (a) Definition.--In this section, the term ``situational awareness'' means information gathered from a variety of sources that, when communicated to emergency managers and decision makers, can form the basis for incident management decisionmaking. (b) Establishment.--The National Operations Center is the principal operations center for the Department and shall-- (1) provide situational awareness and a common operating picture for the entire Federal Government, and for State, local, and tribal governments as appropriate, in the event of a natural disaster, act of terrorism, or other man-made disaster; and (2) ensure that critical terrorism and disaster- related information reaches government decision-makers. (c) State and Local Fire Service Representation.-- (1) Establishment of position.--The Secretary shall, in consultation with the Administrator of the United States Fire Administration, establish a fire service position at the National Operations Center established under subsection (b) to ensure the effective sharing of information between the Federal Government and State and local fire services. (2) Designation of position.--The Secretary shall designate, on a rotating basis, a State or local fire service official for the position described in paragraph (1). (3) Management.--The Secretary shall manage the position established pursuant to paragraph (1) in accordance with such rules, regulations, and practices as govern other similar rotating positions at the National Operations Center. SEC. 516. [6 U.S.C. 321E] CHIEF MEDICAL OFFICER. (a) In General.--There is in the Department a Chief Medical Officer, who shall be appointed by the President, by and with the advice and consent of the Senate. (b) Qualifications.--The individual appointed as Chief Medical Officer shall possess a demonstrated ability in and knowledge of medicine and public health. (c) Responsibilities.--The Chief Medical Officer shall have the primary responsibility within the Department for medical issues related to natural disasters, acts of terrorism, and other man-made disasters, including-- (1) serving as the principal advisor to the Secretary and the Administrator on medical and public health issues; (2) coordinating the biodefense activities of the Department; (3) ensuring internal and external coordination of all medical preparedness and response activities of the Department, including training, exercises, and equipment support; (4) serving as the Department's primary point of contact with the Department of Agriculture, the Department of Defense, the Department of Health and Human Services, the Department of Transportation, the Department of Veterans Affairs, and other Federal departments or agencies, on medical and public health issues; (5) serving as the Department's primary point of contact for State, local, and tribal governments, the medical community, and others within and outside the Department, with respect to medical and public health matters; (6) discharging, in coordination with the Under Secretary for Science and Technology, the responsibilities of the Department related to Project Bioshield; and (7) performing such other duties relating to such responsibilities as the Secretary may require. SEC. 517. [6 U.S.C. 321F] NUCLEAR INCIDENT RESPONSE. (a) In General.--At the direction of the Secretary (in connection with an actual or threatened terrorist attack, major disaster, or other emergency in the United States), the Nuclear Incident Response Team shall operate as an organizational unit of the Department. While so operating, the Nuclear Incident Response Team shall be subject to the direction, authority, and control of the Secretary. (b) Rule of Construction.--Nothing in this title shall be construed to limit the ordinary responsibility of the Secretary of Energy and the Administrator of the Environmental Protection Agency for organizing, training, equipping, and utilizing their respective entities in the Nuclear Incident Response Team, or (subject to the provisions of this title) from exercising direction, authority, and control over them when they are not operating as a unit of the Department. SEC. 518. [6 U.S.C. 321G] CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES. (a) In General.--With respect to all public health-related activities to improve State, local, and hospital preparedness and response to chemical, biological, radiological, and nuclear and other emerging terrorist threats carried out by the Department of Health and Human Services (including the Public Health Service), the Secretary of Health and Human Services shall set priorities and preparedness goals and further develop a coordinated strategy for such activities in collaboration with the Secretary. (b) Evaluation of Progress.--In carrying out subsection (a), the Secretary of Health and Human Services shall collaborate with the Secretary in developing specific benchmarks and outcome measurements for evaluating progress toward achieving the priorities and goals described in such subsection. SEC. 519. [6 U.S.C. 321H] USE OF NATIONAL PRIVATE SECTOR NETWORKS IN EMERGENCY RESPONSE. To the maximum extent practicable, the Secretary shall use national private sector networks and infrastructure for emergency response to chemical, biological, radiological, nuclear, or explosive disasters, and other major disasters. SEC. 520. [6 U.S.C. 321I] USE OF COMMERCIALLY AVAILABLE TECHNOLOGY, GOODS, AND SERVICES. It is the sense of Congress that-- (1) the Secretary should, to the maximum extent possible, use off-the-shelf commercially developed technologies to ensure that the Department's information technology systems allow the Department to collect, manage, share, analyze, and disseminate information securely over multiple channels of communication; and (2) in order to further the policy of the United States to avoid competing commercially with the private sector, the Secretary should rely on commercial sources to supply the goods and services needed by the Department. SEC. 521. [6 U.S.C. 321J] PROCUREMENT OF SECURITY COUNTERMEASURES FOR STRATEGIC NATIONAL STOCKPILE. (a) Authorization of Appropriations.--For the procurement of security countermeasures under section 319F-2(c) of the Public Health Service Act (referred to in this section as the ``security countermeasures program''), there is authorized to be appropriated up to $5,593,000,000 for the fiscal years 2004 through 2013. Of the amounts appropriated under the preceding sentence, not to exceed $3,418,000,000 may be obligated during the fiscal years 2004 through 2008, of which not to exceed $890,000,000 may be obligated during fiscal year 2004. None of the funds made available under this subsection shall be used to procure countermeasures to diagnose, mitigate, prevent, or treat harm resulting from any naturally occurring infectious disease or other public health threat that are not security countermeasures under section 319F-2(c)(1)(B). \1\ --------------------------------------------------------------------------- \1\ The last sentence in section 521(a) was added to reflect the probable intent of Congress. Section 403(c) of Public Law 109-417 (120 Stat. 2874) provides as follows: (c) Limitation on Use of Funds.--Section 510(a) of the Homeland Security Act of 2002 (6 U.S.C. 320(a)) is amended by adding at the end the following: ``None of the funds made available under this subsection shall be used to procure countermeasures to diagnose, mitigate, prevent, or treat harm resulting from any naturally occurring infectious disease or other public health threat that are not security countermeasures under section 319F-2(c)(1)(B).''. Section 510 of the Homeland Security Act of 2002 was redesignated as section 521 by section 611(7) of Public Law 109-295 (120 Stat. 1395). --------------------------------------------------------------------------- (b) Special Reserve Fund.--For purposes of the security countermeasures program, the term ``special reserve fund'' means the ``Biodefense Countermeasures'' appropriations account or any other appropriation made under subsection (a). (c) Availability.--Amounts appropriated under subsection (a) become available for a procurement under the security countermeasures program only upon the approval by the President of such availability for the procurement in accordance with paragraph (6)(B) of such program. (d) Related Authorizations of Appropriations.-- (1) Threat assessment capabilities.--For the purpose of carrying out the responsibilities of the Secretary for terror threat assessment under the security countermeasures program, there are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2004 through 2006, for the hiring of professional personnel within the Office of Intelligence and Analysis, who shall be analysts responsible for chemical, biological, radiological, and nuclear threat assessment (including but not limited to analysis of chemical, biological, radiological, and nuclear agents, the means by which such agents could be weaponized or used in a terrorist attack, and the capabilities, plans, and intentions of terrorists and other non-state actors who may have or acquire such agents). All such analysts shall meet the applicable standards and qualifications for the performance of intelligence activities promulgated by the Director of Central Intelligence pursuant to section 104 of the National Security Act of 1947. (2) Intelligence sharing infrastructure.--For the purpose of carrying out the acquisition and deployment of secure facilities (including information technology and physical infrastructure, whether mobile and temporary, or permanent) sufficient to permit the Secretary to receive, not later than 180 days after the date of enactment of the Project BioShield Act of 2004, all classified information and products to which the Under Secretary for Intelligence and Analysis is entitled under subtitle A of title II, there are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2004 through 2006. SEC. 522. [6 U.S.C. 321K] MODEL STANDARDS AND GUIDELINES FOR CRITICAL INFRASTRUCTURE WORKERS. (a) In General.--Not later than 12 months after the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, and in coordination with appropriate national professional organizations, Federal, State, local, and tribal government agencies, and private-sector and nongovernmental entities, the Administrator shall establish model standards and guidelines for credentialing critical infrastructure workers that may be used by a State to credential critical infrastructure workers that may respond to a natural disaster, act of terrorism, or other man-made disaster. (b) Distribution and Assistance.--The Administrator shall provide the standards developed under subsection (a), including detailed written guidance, to State, local, and tribal governments, and provide expertise and technical assistance to aid such governments with credentialing critical infrastructure workers that may respond to a natural disaster, act of terrorism, or other manmade disaster. SEC. 523. [6 U.S.C. 321L] GUIDANCE AND RECOMMENDATIONS. (a) In General.--Consistent with their responsibilities and authorities under law, as of the day before the date of the enactment of this section, the Administrator and the Assistant Secretary for Infrastructure Protection, in consultation with the private sector, may develop guidance or recommendations and identify best practices to assist or foster action by the private sector in-- (1) identifying potential hazards and assessing risks and impacts; (2) mitigating the impact of a wide variety of hazards, including weapons of mass destruction; (3) managing necessary emergency preparedness and response resources; (4) developing mutual aid agreements; (5) developing and maintaining emergency preparedness and response plans, and associated operational procedures; (6) developing and conducting training and exercises to support and evaluate emergency preparedness and response plans and operational procedures; (7) developing and conducting training programs for security guards to implement emergency preparedness and response plans and operations procedures; and (8) developing procedures to respond to requests for information from the media or the public. (b) Issuance and Promotion.--Any guidance or recommendations developed or best practices identified under subsection (a) shall be-- (1) issued through the Administrator; and (2) promoted by the Secretary to the private sector. (c) Small Business Concerns.--In developing guidance or recommendations or identifying best practices under subsection (a), the Administrator and the Assistant Secretary for Infrastructure Protection shall take into consideration small business concerns (under the meaning given that term in section 3 of the Small Business Act (15 U.S.C. 632)), including any need for separate guidance or recommendations or best practices, as necessary and appropriate. (d) Rule of Construction.--Nothing in this section may be construed to supersede any requirement established under any other provision of law. SEC. 524. [6 U.S.C. 321M] VOLUNTARY PRIVATE SECTOR PREPAREDNESS ACCREDITATION AND CERTIFICATION PROGRAM. (a) Establishment.-- (1) In general.--The Secretary, acting through the officer designated under paragraph (2), shall establish and implement the voluntary private sector preparedness accreditation and certification program in accordance with this section. (2) Designation of officer.--The Secretary shall designate an officer responsible for the accreditation and certification program under this section. Such officer (hereinafter referred to in this section as the ``designated officer'') shall be one of the following: (A) The Administrator, based on consideration of-- (i) the expertise of the Administrator in emergency management and preparedness in the United States; and (ii) the responsibilities of the Administrator as the principal advisor to the President for all matters relating to emergency management in the United States. (B) The Assistant Secretary for Infrastructure Protection, based on consideration of the expertise of the Assistant Secretary in, and responsibilities for-- (i) protection of critical infrastructure; (ii) risk assessment methodologies; and (iii) interacting with the private sector on the issues described in clauses (i) and (ii). (C) The Under Secretary for Science and Technology, based on consideration of the expertise of the Under Secretary in, and responsibilities associated with, standards. (3) Coordination.--In carrying out the accreditation and certification program under this section, the designated officer shall coordinate with-- (A) the other officers of the Department referred to in paragraph (2), using the expertise and responsibilities of such officers; and (B) the Special Assistant to the Secretary for the Private Sector, based on consideration of the expertise of the Special Assistant in, and responsibilities for, interacting with the private sector. (b) Voluntary Private Sector Preparedness Standards; Voluntary Accreditation and Certification Program for the Private Sector.-- (1) Accreditation and certification program.--Not later than 210 days after the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, the designated officer shall-- (A) begin supporting the development and updating, as necessary, of voluntary preparedness standards through appropriate organizations that coordinate or facilitate the development and use of voluntary consensus standards and voluntary consensus standards development organizations; and (B) in consultation with representatives of appropriate organizations that coordinate or facilitate the development and use of voluntary consensus standards, appropriate voluntary consensus standards development organizations, each private sector advisory council created under section 102(f)(4), appropriate representatives of State and local governments, including emergency management officials, and appropriate private sector advisory groups, such as sector coordinating councils and information sharing and analysis centers-- (i) develop and promote a program to certify the preparedness of private sector entities that voluntarily choose to seek certification under the program; and (ii) implement the program under this subsection through any entity with which the designated officer enters into an agreement under paragraph (3)(A), which shall accredit third parties to carry out the certification process under this section. (2) Program elements.-- (A) In general.-- (i) Program.--The program developed and implemented under this subsection shall assess whether a private sector entity complies with voluntary preparedness standards. (ii) Guidelines.--In developing the program under this subsection, the designated officer shall develop guidelines for the accreditation and certification processes established under this subsection. (B) Standards.--The designated officer, in consultation with representatives of appropriate organizations that coordinate or facilitate the development and use of voluntary consensus standards, representatives of appropriate voluntary consensus standards development organizations, each private sector advisory council created under section 102(f)(4), appropriate representatives of State and local governments, including emergency management officials, and appropriate private sector advisory groups such as sector coordinating councils and information sharing and analysis centers-- (i) shall adopt one or more appropriate voluntary preparedness standards that promote preparedness, which may be tailored to address the unique nature of various sectors within the private sector, as necessary and appropriate, that shall be used in the accreditation and certification program under this subsection; and (ii) after the adoption of one or more standards under clause (i), may adopt additional voluntary preparedness standards or modify or discontinue the use of voluntary preparedness standards for the accreditation and certification program, as necessary and appropriate to promote preparedness. (C) Submission of recommendations.--In adopting one or more standards under subparagraph (B), the designated officer may receive recommendations from any entity described in that subparagraph relating to appropriate voluntary preparedness standards, including appropriate sector specific standards, for adoption in the program. (D) Small business concerns.--The designated officer and any entity with which the designated officer enters into an agreement under paragraph (3)(A) shall establish separate classifications and methods of certification for small business concerns (under the meaning given that term in section 3 of the Small Business Act (15 U.S.C. 632)) for the program under this subsection. (E) Considerations.--In developing and implementing the program under this subsection, the designated officer shall-- (i) consider the unique nature of various sectors within the private sector, including preparedness standards, business continuity standards, or best practices, established-- (I) under any other provision of Federal law; or (II) by any sector-specific agency, as defined under Homeland Security Presidential Directive-7; and (ii) coordinate the program, as appropriate, with-- (I) other Department private sector related programs; and (II) preparedness and business continuity programs in other Federal agencies. (3) Accreditation and certification processes.-- (A) Agreement.-- (i) In general.--Not later than 210 days after the date of enactment of the Implementing Recommendations of the 9/ 11 Commission Act of 2007, the designated officer shall enter into one or more agreements with a highly qualified nongovernmental entity with experience or expertise in coordinating and facilitating the development and use of voluntary consensus standards and in managing or implementing accreditation and certification programs for voluntary consensus standards, or a similarly qualified private sector entity, to carry out accreditations and oversee the certification process under this subsection. An entity entering into an agreement with the designated officer under this clause (hereinafter referred to in this section as a ``selected entity'') shall not perform certifications under this subsection. (ii) Contents.--A selected entity shall manage the accreditation process and oversee the certification process in accordance with the program established under this subsection and accredit qualified third parties to carry out the certification program established under this subsection. (B) Procedures and requirements for accreditation and certification.-- (i) In general.--Any selected entity shall collaborate to develop procedures and requirements for the accreditation and certification processes under this subsection, in accordance with the program established under this subsection and guidelines developed under paragraph (2)(A)(ii). (ii) Contents and use.--The procedures and requirements developed under clause (i) shall-- (I) ensure reasonable uniformity in any accreditation and certification processes if there is more than one selected entity; and (II) be used by any selected entity in conducting accreditations and overseeing the certification process under this subsection. (iii) Disagreement.--Any disagreement among selected entities in developing procedures under clause (i) shall be resolved by the designated officer. (C) Designation.--A selected entity may accredit any qualified third party to carry out the certification process under this subsection. (D) Disadvantaged business involvement.--In accrediting qualified third parties to carry out the certification process under this subsection, a selected entity shall ensure, to the extent practicable, that the third parties include qualified small, minority, women-owned, or disadvantaged business concerns when appropriate. The term ``disadvantaged business concern'' means a small business that is owned and controlled by socially and economically disadvantaged individuals, as defined in section 124 of title 13, United States Code of Federal Regulations. (E) Treatment of other certifications.--At the request of any entity seeking certification, any selected entity may consider, as appropriate, other relevant certifications acquired by the entity seeking certification. If the selected entity determines that such other certifications are sufficient to meet the certification requirement or aspects of the certification requirement under this section, the selected entity may give credit to the entity seeking certification, as appropriate, to avoid unnecessarily duplicative certification requirements. (F) Third parties.--To be accredited under subparagraph (C), a third party shall-- (i) demonstrate that the third party has the ability to certify private sector entities in accordance with the procedures and requirements developed under subparagraph (B); (ii) agree to perform certifications in accordance with such procedures and requirements; (iii) agree not to have any beneficial interest in or any direct or indirect control over-- (I) a private sector entity for which that third party conducts a certification under this subsection; or (II) any organization that provides preparedness consulting services to private sector entities; (iv) agree not to have any other conflict of interest with respect to any private sector entity for which that third party conducts a certification under this subsection; (v) maintain liability insurance coverage at policy limits in accordance with the requirements developed under subparagraph (B); and (vi) enter into an agreement with the selected entity accrediting that third party to protect any proprietary information of a private sector entity obtained under this subsection. (G) Monitoring.-- (i) In general.--The designated officer and any selected entity shall regularly monitor and inspect the operations of any third party conducting certifications under this subsection to ensure that the third party is complying with the procedures and requirements established under subparagraph (B) and all other applicable requirements. (ii) Revocation.--If the designated officer or any selected entity determines that a third party is not meeting the procedures or requirements established under subparagraph (B), the selected entity shall-- (I) revoke the accreditation of that third party to conduct certifications under this subsection; and (II) review any certification conducted by that third party, as necessary and appropriate. (4) Annual review.-- (A) In general.--The designated officer, in consultation with representatives of appropriate organizations that coordinate or facilitate the development and use of voluntary consensus standards, appropriate voluntary consensus standards development organizations, appropriate representatives of State and local governments, including emergency management officials, and each private sector advisory council created under section 102(f)(4), shall annually review the voluntary accreditation and certification program established under this subsection to ensure the effectiveness of such program (including the operations and management of such program by any selected entity and the selected entity's inclusion of qualified disadvantaged business concerns under paragraph (3)(D)) and make improvements and adjustments to the program as necessary and appropriate. (B) Review of standards.--Each review under subparagraph (A) shall include an assessment of the voluntary preparedness standard or standards used in the program under this subsection. (5) Voluntary participation.--Certification under this subsection shall be voluntary for any private sector entity. (6) Public listing.--The designated officer shall maintain and make public a listing of any private sector entity certified as being in compliance with the program established under this subsection, if that private sector entity consents to such listing. (c) Rule of Construction.--Nothing in this section may be construed as-- (1) a requirement to replace any preparedness, emergency response, or business continuity standards, requirements, or best practices established-- (A) under any other provision of federal law; or (B) by any sector-specific agency, as those agencies are defined under Homeland Security Presidential Directive-7; or (2) exempting any private sector entity seeking certification or meeting certification requirements under subsection (b) from compliance with all applicable statutes, regulations, directives, policies, and industry codes of practice. TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS SEC. 601. [6 U.S.C. 331] TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS. (a) Findings.--Congress finds the following: (1) Members of the Armed Forces of the United States defend the freedom and security of our Nation. (2) Members of the Armed Forces of the United States have lost their lives while battling the evils of terrorism around the world. (3) Personnel of the Central Intelligence Agency (CIA) charged with the responsibility of covert observation of terrorists around the world are often put in harm's way during their service to the United States. (4) Personnel of the Central Intelligence Agency have also lost their lives while battling the evils of terrorism around the world. (5) Employees of the Federal Bureau of Investigation (FBI) and other Federal agencies charged with domestic protection of the United States put their lives at risk on a daily basis for the freedom and security of our Nation. (6) United States military personnel, CIA personnel, FBI personnel, and other Federal agents in the service of the United States are patriots of the highest order. (7) CIA officer Johnny Micheal Spann became the first American to give his life for his country in the War on Terrorism declared by President George W. Bush following the terrorist attacks of September 11, 2001. (8) Johnny Micheal Spann left behind a wife and children who are very proud of the heroic actions of their patriot father. (9) Surviving dependents of members of the Armed Forces of the United States who lose their lives as a result of terrorist attacks or military operations abroad receive a $6,000 death benefit, plus a small monthly benefit. (10) The current system of compensating spouses and children of American patriots is inequitable and needs improvement. (b) Designation of Johnny Micheal Spann Patriot Trusts.-- Any charitable corporation, fund, foundation, or trust (or separate fund or account thereof) which otherwise meets all applicable requirements under law with respect to charitable entities and meets the requirements described in subsection (c) shall be eligible to characterize itself as a ``Johnny Micheal Spann Patriot Trust''. (c) Requirements for the Designation of Johnny Micheal Spann Patriot Trusts.--The requirements described in this subsection are as follows: (1) Not taking into account funds or donations reasonably necessary to establish a trust, at least 85 percent of all funds or donations (including any earnings on the investment of such funds or donations) received or collected by any Johnny Micheal Spann Patriot Trust must be distributed to (or, if placed in a private foundation, held in trust for) surviving spouses, children, or dependent parents, grandparents, or siblings of 1 or more of the following: (A) members of the Armed Forces of the United States; (B) personnel, including contractors, of elements of the intelligence community, as defined in section 3(4) of the National Security Act of 1947; (C) employees of the Federal Bureau of Investigation; and (D) officers, employees, or contract employees of the United States Government, whose deaths occur in the line of duty and arise out of terrorist attacks, military operations, intelligence operations, or law enforcement operations or accidents connected with activities occurring after September 11, 2001, and related to domestic or foreign efforts to curb international terrorism, including the Authorization for Use of Military Force (Public Law 107-40; 115 Stat. 224). (2) Other than funds or donations reasonably necessary to establish a trust, not more than 15 percent of all funds or donations (or 15 percent of annual earnings on funds invested in a private foundation) may be used for administrative purposes. (3) No part of the net earnings of any Johnny Micheal Spann Patriot Trust may inure to the benefit of any individual based solely on the position of such individual as a shareholder, an officer or employee of such Trust. (4) None of the activities of any Johnny Micheal Spann Patriot Trust shall be conducted in a manner inconsistent with any law that prohibits attempting to influence legislation. (5) No Johnny Micheal Spann Patriot Trust may participate in or intervene in any political campaign on behalf of (or in opposition to) any candidate for public office, including by publication or distribution of statements. (6) Each Johnny Micheal Spann Patriot Trust shall comply with the instructions and directions of the Director of Central Intelligence, the Attorney General, or the Secretary of Defense relating to the protection of intelligence sources and methods, sensitive law enforcement information, or other sensitive national security information, including methods for confidentially disbursing funds. (7) Each Johnny Micheal Spann Patriot Trust that receives annual contributions totaling more than $1,000,000 must be audited annually by an independent certified public accounting firm. Such audits shall be filed with the Internal Revenue Service, and shall be open to public inspection, except that the conduct, filing, and availability of the audit shall be consistent with the protection of intelligence sources and methods, of sensitive law enforcement information, and of other sensitive national security information. (8) Each Johnny Micheal Spann Patriot Trust shall make distributions to beneficiaries described in paragraph (1) at least once every calendar year, beginning not later than 12 months after the formation of such Trust, and all funds and donations received and earnings not placed in a private foundation dedicated to such beneficiaries must be distributed within 36 months after the end of the fiscal year in which such funds, donations, and earnings are received. (9)(A) When determining the amount of a distribution to any beneficiary described in paragraph (1), a Johnny Micheal Spann Patriot Trust should take into account the amount of any collateral source compensation that the beneficiary has received or is entitled to receive as a result of the death of an individual described in paragraph (1). (B) Collateral source compensation includes all compensation from collateral sources, including life insurance, pension funds, death benefit programs, and payments by Federal, State, or local governments related to the death of an individual described in paragraph (1). (d) Treatment of Johnny Micheal Spann Patriot Trusts.--Each Johnny Micheal Spann Patriot Trust shall refrain from conducting the activities described in clauses (i) and (ii) of section 301(20)(A) of the Federal Election Campaign Act of 1971 so that a general solicitation of funds by an individual described in paragraph (1) of section 323(e) of such Act will be permissible if such solicitation meets the requirements of paragraph (4)(A) of such section. (e) Notification of Trust Beneficiaries.--Notwithstanding any other provision of law, and in a manner consistent with the protection of intelligence sources and methods and sensitive law enforcement information, and other sensitive national security information, the Secretary of Defense, the Director of the Federal Bureau of Investigation, or the Director of Central Intelligence, or their designees, as applicable, may forward information received from an executor, administrator, or other legal representative of the estate of a decedent described in subparagraph (A), (B), (C), or (D) of subsection (c)(1), to a Johnny Micheal Spann Patriot Trust on how to contact individuals eligible for a distribution under subsection (c)(1) for the purpose of providing assistance from such Trust: Provided, That, neither forwarding nor failing to forward any information under this subsection shall create any cause of action against any Federal department, agency, officer, agent, or employee. (f) Regulations.--Not later than 90 days after the date of enactment of this Act, the Secretary of Defense, in coordination with the Attorney General, the Director of the Federal Bureau of Investigation, and the Director of Central Intelligence, shall prescribe regulations to carry out this section. TITLE VII--MANAGEMENT SEC. 701. [6 U.S.C. 341] UNDER SECRETARY FOR MANAGEMENT. (a) In General.--The Under Secretary for Management shall serve as the Chief Management Officer and principal advisor to the Secretary on matters related to the management of the Department, including management integration and transformation in support of homeland security operations and programs. The Secretary, acting through the Under Secretary for Management, shall be responsible for the management and administration of the Department, including the following: (1) The budget, appropriations, expenditures of funds, accounting, and finance. (2) Procurement. (3) Human resources and personnel. (4) Information technology and communications systems. (5) Facilities, property, equipment, and other material resources. (6) Security for personnel, information technology and communications systems, facilities, property, equipment, and other material resources. (7) Strategic management planning and annual performance planning and identification and tracking of performance measures relating to the responsibilities of the Department. (8) Grants and other assistance management programs. (9) The management integration and transformation process, as well as the transition process, to ensure an efficient and orderly consolidation of functions and personnel in the Department and transition, including-- (A) the development of a management integration strategy for the Department, and (B) before December 1 of any year in which a Presidential election is held, the development of a transition and succession plan, to be made available to the incoming Secretary and Under Secretary for Management, to guide the transition of management functions to a new Administration. (10) The conduct of internal audits and management analyses of the programs and activities of the Department. (11) Any other management duties that the Secretary may designate. (b) Immigration.-- (1) In general.--In addition to the responsibilities described in subsection (a), the Under Secretary for Management shall be responsible for the following: (A) Maintenance of all immigration statistical information of the Bureau of Border Security and the Bureau of Citizenship and Immigration Services. Such statistical information shall include information and statistics of the type contained in the publication entitled ``Statistical Yearbook of the Immigration and Naturalization Service'' prepared by the Immigration and Naturalization Service (as in effect immediately before the date on which the transfer of functions specified under section 441 takes effect), including region-by-region statistics on the aggregate number of applications and petitions filed by an alien (or filed on behalf of an alien) and denied by such bureau, and the reasons for such denials, disaggregated by category of denial and application or petition type. (B) Establishment of standards of reliability and validity for immigration statistics collected by such bureaus. (2) Transfer of functions.--In accordance with title XV, there shall be transferred to the Under Secretary for Management all functions performed immediately before such transfer occurs by the Statistics Branch of the Office of Policy and Planning of the Immigration and Naturalization Service with respect to the following programs: (A) The Border Patrol program. (B) The detention and removal program. (C) The intelligence program. (D) The investigations program. (E) The inspections program. (F) Adjudication of immigrant visa petitions. (G) Adjudication of naturalization petitions. (H) Adjudication of asylum and refugee applications. (I) Adjudications performed at service centers. (J) All other adjudications performed by the Immigration and Naturalization Service. (c) Appointment and Evaluation.--The Under Secretary for Management shall-- (1) be appointed by the President, by and with the advice and consent of the Senate, from among persons who have-- (A) extensive executive level leadership and management experience in the public or private sector; (B) strong leadership skills; (C) a demonstrated ability to manage large and complex organizations; and (D) a proven record in achieving positive operational results; (2) enter into an annual performance agreement with the Secretary that shall set forth measurable individual and organizational goals; and (3) be subject to an annual performance evaluation by the Secretary, who shall determine as part of each such evaluation whether the Under Secretary for Management has made satisfactory progress toward achieving the goals set out in the performance agreement required under paragraph (2). SEC. 702. [6 U.S.C. 342] CHIEF FINANCIAL OFFICER. (a) In General.--The Chief Financial Officer shall perform functions as specified in chapter 9 of title 31, United States Code, and, with respect to all such functions and other responsibilities that may be assigned to the Chief Financial Officer from time to time, shall also report to the Under Secretary for Management. (b) Program Analysis and Evaluation Function.-- (1) Establishment of office of program analysis and evaluation.--Not later than 90 days after the date of enactment of this subsection, the Secretary shall establish an Office of Program Analysis and Evaluation within the Department (in this section referred to as the ``Office''). (2) Responsibilities.--The Office shall perform the following functions: (A) Analyze and evaluate plans, programs, and budgets of the Department in relation to United States homeland security objectives, projected threats, vulnerability assessments, estimated costs, resource constraints, and the most recent homeland security strategy developed pursuant to section 874(b)(2). (B) Develop and perform analyses and evaluations of alternative plans, programs, personnel levels, and budget submissions for the Department in relation to United States homeland security objectives, projected threats, vulnerability assessments, estimated costs, resource constraints, and the most recent homeland security strategy developed pursuant to section 874(b)(2). (C) Establish policies for, and oversee the integration of, the planning, programming, and budgeting system of the Department. (D) Review and ensure that the Department meets performance-based budget requirements established by the Office of Management and Budget. (E) Provide guidance for, and oversee the development of, the Future Years Homeland Security Program of the Department, as specified under section 874. (F) Ensure that the costs of Department programs, including classified programs, are presented accurately and completely. (G) Oversee the preparation of the annual performance plan for the Department and the program and performance section of the annual report on program performance for the Department, consistent with sections 1115 and 1116, respectively, of title 31, United States Code. (H) Provide leadership in developing and promoting improved analytical tools and methods for analyzing homeland security planning and the allocation of resources. (I) Any other responsibilities delegated by the Secretary consistent with an effective program analysis and evaluation function. (3) Director of program analysis and evaluation.-- There shall be a Director of Program Analysis and Evaluation, who-- (A) shall be a principal staff assistant to the Chief Financial Officer of the Department for program analysis and evaluation; and (B) shall report to an official no lower than the Chief Financial Officer. (4) Reorganization.-- (A) In general.--The Secretary may allocate or reallocate the functions of the Office, or discontinue the Office, in accordance with section 872(a). (B) Exemption from limitations.--Section 872(b) shall not apply to any action by the Secretary under this paragraph. (c) Notification Regarding Transfer or Reprogramming of Funds.--In any case in which appropriations available to the Department or any officer of the Department are transferred or reprogrammed and notice of such transfer or reprogramming is submitted to the Congress (including any officer, office, or Committee of the Congress), the Chief Financial Officer of the Department shall simultaneously submit such notice to the Select Committee on Homeland Security (or any successor to the jurisdiction of that committee) and the Committee on Government Reform of the House of Representatives, and to the Committee on Governmental Affairs of the Senate. SEC. 703. [6 U.S.C. 343] CHIEF INFORMATION OFFICER. (a) In General.--The Chief Information Officer shall report to the Secretary, or to another official of the Department, as the Secretary may direct. (b) Geospatial Information Functions.-- (1) Definitions.--As used in this subsection: (A) Geospatial information.--The term ``geospatial information'' means graphical or digital data depicting natural or manmade physical features, phenomena, or boundaries of the earth and any information related thereto, including surveys, maps, charts, remote sensing data, and images. (B) Geospatial technology.--The term ``geospatial technology'' means any technology utilized by analysts, specialists, surveyors, photogrammetrists, hydrographers, geodesists, cartographers, architects, or engineers for the collection, storage, retrieval, or dissemination of geospatial information, including-- (i) global satellite surveillance systems; (ii) global position systems; (iii) geographic information systems; (iv) mapping equipment; (v) geocoding technology; and (vi) remote sensing devices. (2) Office of geospatial management.-- (A) Establishment.--The Office of Geospatial Management is established within the Office of the Chief Information Officer. (B) Geospatial information officer.-- (i) Appointment.--The Office of Geospatial Management shall be administered by the Geospatial Information Officer, who shall be appointed by the Secretary and serve under the direction of the Chief Information Officer. (ii) Functions.--The Geospatial Information Officer shall assist the Chief Information Officer in carrying out all functions under this section and in coordinating the geospatial information needs of the Department. (C) Coordination of geospatial information.--The Chief Information Officer shall establish and carry out a program to provide for the efficient use of geospatial information, which shall include-- (i) providing such geospatial information as may be necessary to implement the critical infrastructure protection programs; (ii) providing leadership and coordination in meeting the geospatial information requirements of those responsible for planning, prevention, mitigation, assessment and response to emergencies, critical infrastructure protection, and other functions of the Department; and (iii) coordinating with users of geospatial information within the Department to assure interoperability and prevent unnecessary duplication. (D) Responsibilities.--In carrying out this subsection, the responsibilities of the Chief Information Officer shall include-- (i) coordinating the geospatial information needs and activities of the Department; (ii) implementing standards, as adopted by the Director of the Office of Management and Budget under the processes established under section 216 of the E-Government Act of 2002 (44 U.S.C. 3501 note), to facilitate the interoperability of geospatial information pertaining to homeland security among all users of such information within-- (I) the Department; (II) State and local government; and (III) the private sector; (iii) coordinating with the Federal Geographic Data Committee and carrying out the responsibilities of the Department pursuant to Office of Management and Budget Circular A-16 and Executive Order 12906; and (iv) making recommendations to the Secretary and the Executive Director of the Office for State and Local Government Coordination and Preparedness on awarding grants to-- (I) fund the creation of geospatial data; and (II) execute information sharing agreements regarding geospatial data with State, local, and tribal governments. (3) Authorization of appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this subsection for each fiscal year. SEC. 704. [6 U.S.C. 344] CHIEF HUMAN CAPITAL OFFICER. The Chief Human Capital Officer shall report to the Secretary, or to another official of the Department, as the Secretary may direct and shall ensure that all employees of the Department are informed of their rights and remedies under chapters 12 and 23 of title 5, United States Code, by-- (1) participating in the 2302(c) Certification Program of the Office of Special Counsel; (2) achieving certification from the Office of Special Counsel of the Department's compliance with section 2302(c) of title 5, United States Code; and (3) informing Congress of such certification not later than 24 months after the date of enactment of this Act. SEC. 705. [6 U.S.C. 345] ESTABLISHMENT OF OFFICER FOR CIVIL RIGHTS AND CIVIL LIBERTIES. (a) In General.--The Officer for Civil Rights and Civil Liberties, who shall report directly to the Secretary, shall-- (1) review and assess information concerning abuses of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion, by employees and officials of the Department; (2) make public through the Internet, radio, television, or newspaper advertisements information on the responsibilities and functions of, and how to contact, the Officer; (3) assist the Secretary, directorates, and offices of the Department to develop, implement, and periodically review Department policies and procedures to ensure that the protection of civil rights and civil liberties is appropriately incorporated into Department programs and activities; (4) oversee compliance with constitutional, statutory, regulatory, policy, and other requirements relating to the civil rights and civil liberties of individuals affected by the programs and activities of the Department; (5) coordinate with the Privacy Officer to ensure that-- (A) programs, policies, and procedures involving civil rights, civil liberties, and privacy considerations are addressed in an integrated and comprehensive manner; and (B) Congress receives appropriate reports regarding such programs, policies, and procedures; and (6) investigate complaints and information indicating possible abuses of civil rights or civil liberties, unless the Inspector General of the Department determines that any such complaint or information should be investigated by the Inspector General. (b) Report.--The Secretary shall submit to the President of the Senate, the Speaker of the House of Representatives, and the appropriate committees and subcommittees of Congress on an annual basis a report on the implementation of this section, including the use of funds appropriated to carry out this section, and detailing any allegations of abuses described under subsection (a)(1) and any actions taken by the Department in response to such allegations. SEC. 706. [6 U.S.C. 346] CONSOLIDATION AND CO-LOCATION OF OFFICES. Not later than 1 year after the date of the enactment of this Act, the Secretary shall develop and submit to Congress a plan for consolidating and co-locating-- (1) any regional offices or field offices of agencies that are transferred to the Department under this Act, if such officers are located in the same municipality; and (2) portions of regional and field offices of other Federal agencies, to the extent such offices perform functions that are transferred to the Secretary under this Act. SEC. 707. [6 U.S.C. 347] QUADRENNIAL HOMELAND SECURITY REVIEW. (a) Requirement.-- (1) Quadrennial reviews required.--In fiscal year 2009, and every 4 years thereafter, the Secretary shall conduct a review of the homeland security of the Nation (in this section referred to as a ``quadrennial homeland security review''). (2) Scope of reviews.--Each quadrennial homeland security review shall be a comprehensive examination of the homeland security strategy of the Nation, including recommendations regarding the long-term strategy and priorities of the Nation for homeland security and guidance on the programs, assets, capabilities, budget, policies, and authorities of the Department. (3) Consultation.--The Secretary shall conduct each quadrennial homeland security review under this subsection in consultation with-- (A) the heads of other Federal agencies, including the Attorney General, the Secretary of State, the Secretary of Defense, the Secretary of Health and Human Services, the Secretary of the Treasury, the Secretary of Agriculture, and the Director of National Intelligence; (B) key officials of the Department; and (C) other relevant governmental and nongovernmental entities, including State, local, and tribal government officials, members of Congress, private sector representatives, academics, and other policy experts. (4) Relationship with future years homeland security program.--The Secretary shall ensure that each review conducted under this section is coordinated with the Future Years Homeland Security Program required under section 874. (b) Contents of Review.--In each quadrennial homeland security review, the Secretary shall-- (1) delineate and update, as appropriate, the national homeland security strategy, consistent with appropriate national and Department strategies, strategic plans, and Homeland Security Presidential Directives, including the National Strategy for Homeland Security, the National Response Plan, and the Department Security Strategic Plan; (2) outline and prioritize the full range of the critical homeland security mission areas of the Nation; (3) describe the interagency cooperation, preparedness of Federal response assets, infrastructure, budget plan, and other elements of the homeland security program and policies of the Nation associated with the national homeland security strategy, required to execute successfully the full range of missions called for in the national homeland security strategy described in paragraph (1) and the homeland security mission areas outlined under paragraph (2); (4) identify the budget plan required to provide sufficient resources to successfully execute the full range of missions called for in the national homeland security strategy described in paragraph (1) and the homeland security mission areas outlined under paragraph (2); (5) include an assessment of the organizational alignment of the Department with the national homeland security strategy referred to in paragraph (1) and the homeland security mission areas outlined under paragraph (2); and (6) review and assess the effectiveness of the mechanisms of the Department for executing the process of turning the requirements developed in the quadrennial homeland security review into an acquisition strategy and expenditure plan within the Department. (c) Reporting.-- (1) In general.--Not later than December 31 of the year in which a quadrennial homeland security review is conducted, the Secretary shall submit to Congress a report regarding that quadrennial homeland security review. (2) Contents of report.--Each report submitted under paragraph (1) shall include-- (A) the results of the quadrennial homeland security review; (B) a description of the threats to the assumed or defined national homeland security interests of the Nation that were examined for the purposes of that review; (C) the national homeland security strategy, including a prioritized list of the critical homeland security missions of the Nation; (D) a description of the interagency cooperation, preparedness of Federal response assets, infrastructure, budget plan, and other elements of the homeland security program and policies of the Nation associated with the national homeland security strategy, required to execute successfully the full range of missions called for in the applicable national homeland security strategy referred to in subsection (b)(1) and the homeland security mission areas outlined under subsection (b)(2); (E) an assessment of the organizational alignment of the Department with the applicable national homeland security strategy referred to in subsection (b)(1) and the homeland security mission areas outlined under subsection (b)(2), including the Department's organizational structure, management systems, budget and accounting systems, human resources systems, procurement systems, and physical and technical infrastructure; (F) a discussion of the status of cooperation among Federal agencies in the effort to promote national homeland security; (G) a discussion of the status of cooperation between the Federal Government and State, local, and tribal governments in preventing terrorist attacks and preparing for emergency response to threats to national homeland security; (H) an explanation of any underlying assumptions used in conducting the review; and (I) any other matter the Secretary considers appropriate. (3) Public availability.--The Secretary shall, consistent with the protection of national security and other sensitive matters, make each report submitted under paragraph (1) publicly available on the Internet website of the Department. (d) Authorization of Appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this section. TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS Subtitle A--Coordination with Non-Federal Entities SEC. 801. [6 U.S.C. 361] OFFICE FOR STATE AND LOCAL GOVERNMENT COORDINATION. (a) Establishment.--There is established within the Office of the Secretary the Office for State and Local Government Coordination, to oversee and coordinate departmental programs for and relationships with State and local governments. (b) Responsibilities.--The Office established under subsection (a) shall-- (1) coordinate the activities of the Department relating to State and local government; (2) assess, and advocate for, the resources needed by State and local government to implement the national strategy for combating terrorism; (3) provide State and local government with regular information, research, and technical support to assist local efforts at securing the homeland; and (4) develop a process for receiving meaningful input from State and local government to assist the development of the national strategy for combating terrorism and other homeland security activities. Subtitle B--Inspector General [SEC. 811. REPEALED] * * * * * * * SEC. 812. LAW ENFORCEMENT POWERS OF INSPECTOR GENERAL AGENTS. (a) * * * * * * * * * * (b) [5 U.S.C. app. 6 note] Promulgation of Initial Guidelines.-- (1) Definition.--In this subsection, the term ``memoranda of understanding'' means the agreements between the Department of Justice and the Inspector General offices described under section 6(e)(3) of the Inspector General Act of 1978 (5 U.S.C. App.) (as added by subsection (a) of this section) that-- (A) are in effect on the date of enactment of this Act; and (B) authorize such offices to exercise authority that is the same or similar to the authority under section 6(e)(1) of such Act. (2) In general.--Not later than 180 days after the date of enactment of this Act, the Attorney General shall promulgate guidelines under section 6(e)(4) of the Inspector General Act of 1978 (5 U.S.C. App.) (as added by subsection (a) of this section) applicable to the Inspector General offices described under section 6(e)(3) of that Act. (3) Minimum requirements.--The guidelines promulgated under this subsection shall include, at a minimum, the operational and training requirements in the memoranda of understanding. (4) No lapse of authority.--The memoranda of understanding in effect on the date of enactment of this Act shall remain in effect until the guidelines promulgated under this subsection take effect. (c) [5 U.S.C. app. 6 note] Effective Dates.-- (1) In general.--Subsection (a) shall take effect 180 days after the date of enactment of this Act. (2) Initial guidelines.--Subsection (b) shall take effect on the date of enactment of this Act. Subtitle C--United States Secret Service SEC. 821. [6 U.S.C. 381] FUNCTIONS TRANSFERRED. In accordance with title XV, there shall be transferred to the Secretary the functions, personnel, assets, and obligations of the United States Secret Service, which shall be maintained as a distinct entity within the Department, including the functions of the Secretary of the Treasury relating thereto. Subtitle D--Acquisitions SEC. 831. [6 U.S.C. 391] RESEARCH AND DEVELOPMENT PROJECTS. (a) Authority.--Until September 30, 2009 and subject to subsection (d), the Secretary may carry out a pilot program under which the Secretary may exercise the following authorities: (1) In general.--When the Secretary carries out basic, applied, and advanced research and development projects, including the expenditure of funds for such projects, the Secretary may exercise the same authority (subject to the same limitations and conditions) with respect to such research and projects as the Secretary of Defense may exercise under section 2371 of title 10, United States Code (except for subsections (b) and (f)), after making a determination that the use of a contract, grant, or cooperative agreement for such project is not feasible or appropriate. The annual report required under subsection (b) of this section, as applied to the Secretary by this paragraph, shall be submitted to the President of the Senate and the Speaker of the House of Representatives. (2) Prototype projects.--The Secretary may, under the authority of paragraph (1), carry out prototype projects in accordance with the requirements and conditions provided for carrying out prototype projects under section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160). In applying the authorities of that section 845, subsection (c) of that section shall apply with respect to prototype projects under this paragraph, and the Secretary shall perform the functions of the Secretary of Defense under subsection (d) thereof. (b) Report.--Not later than 2 years after the effective date of this Act, and annually thereafter, the Comptroller General shall report to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate on-- (1) whether use of the authorities described in subsection (a) attracts nontraditional Government contractors and results in the acquisition of needed technologies; and (2) if such authorities were to be made permanent, whether additional safeguards are needed with respect to the use of such authorities. (c) Procurement of Temporary and Intermittent Services.-- The Secretary may-- (1) procure the temporary or intermittent services of experts or consultants (or organizations thereof) in accordance with section 3109(b) of title 5, United States Code; and (2) whenever necessary due to an urgent homeland security need, procure temporary (not to exceed 1 year) or intermittent personal services, including the services of experts or consultants (or organizations thereof), without regard to the pay limitations of such section 3109. (d) Additional Requirements.-- (1) In general.--The authority of the Secretary under this section shall terminate September 30, 2009, unless before that date the Secretary-- (A) issues policy guidance detailing the appropriate use of that authority; and (B) provides training to each employee that is authorized to exercise that authority. (2) Report.--The Secretary shall provide an annual report to the Committees on Appropriations of the Senate and the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on Homeland Security of the House of Representatives detailing the projects for which the authority granted by subsection (a) was used, the rationale for its use, the funds spent using that authority, the outcome of each project for which that authority was used, and the results of any audits of such projects. (e) Definition of Nontraditional Government Contractor.--In this section, the term ``nontraditional Government contractor'' has the same meaning as the term ``nontraditional defense contractor'' as defined in section 845(e) of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103- 160; 10 U.S.C. 2371 note). SEC. 832. [6 U.S.C. 392] PERSONAL SERVICES. The Secretary-- (1) may procure the temporary or intermittent services of experts or consultants (or organizations thereof) in accordance with section 3109 of title 5, United States Code; and (2) may, whenever necessary due to an urgent homeland security need, procure temporary (not to exceed 1 year) or intermittent personal services, including the services of experts or consultants (or organizations thereof), without regard to the pay limitations of such section 3109. SEC. 833. [6 U.S.C. 393] SPECIAL STREAMLINED ACQUISITION AUTHORITY. (a) Authority.-- (1) In general.--The Secretary may use the authorities set forth in this section with respect to any procurement made during the period beginning on the effective date of this Act and ending September 30, 2007, if the Secretary determines in writing that the mission of the Department (as described in section 101) would be seriously impaired without the use of such authorities. (2) Delegation.--The authority to make the determination described in paragraph (1) may not be delegated by the Secretary to an officer of the Department who is not appointed by the President with the advice and consent of the Senate. (3) Notification.--Not later than the date that is 7 days after the date of any determination under paragraph (1), the Secretary shall submit to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate-- (A) notification of such determination; and (B) the justification for such determination. (b) Increased Micro-Purchase Threshold For Certain Procurements.-- (1) In general.--The Secretary may designate certain employees of the Department to make procurements described in subsection (a) for which in the administration of section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428) the amount specified in subsections (c), (d), and (f) of such section 32 shall be deemed to be $7,500. (2) Number of employees.--The number of employees designated under paragraph (1) shall be-- (A) fewer than the number of employees of the Department who are authorized to make purchases without obtaining competitive quotations, pursuant to section 32(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 428(c)); (B) sufficient to ensure the geographic dispersal of the availability of the use of the procurement authority under such paragraph at locations reasonably considered to be potential terrorist targets; and (C) sufficiently limited to allow for the careful monitoring of employees designated under such paragraph. (3) Review.--Procurements made under the authority of this subsection shall be subject to review by a designated supervisor on not less than a monthly basis. The supervisor responsible for the review shall be responsible for no more than 7 employees making procurements under this subsection. (c) Simplified Acquisition Procedures.-- (1) In general.--With respect to a procurement described in subsection (a), the Secretary may deem the simplified acquisition threshold referred to in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)) to be-- (A) in the case of a contract to be awarded and performed, or purchase to be made, within the United States, $200,000; and (B) in the case of a contract to be awarded and performed, or purchase to be made, outside of the United States, $300,000. * * * * * * * (d) Application of Certain Commercial Items Authorities.-- (1) In general.--With respect to a procurement described in subsection (a), the Secretary may deem any item or service to be a commercial item for the purpose of Federal procurement laws. (2) Limitation.--The $5,000,000 limitation provided in section 31(a)(2) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(2)) and section 303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(B)) shall be deemed to be $7,500,000 for purposes of property or services under the authority of this subsection. (3) Certain authority.--Authority under a provision of law referred to in paragraph (2) that expires under section 4202(e) of the Clinger-Cohen Act of 1996 (divisions D and E of Public Law 104-106; 10 U.S.C. 2304 note) shall, notwithstanding such section, continue to apply for a procurement described in subsection (a). (e) Report.--Not later than 180 days after the end of fiscal year 2005, the Comptroller General shall submit to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives a report on the use of the authorities provided in this section. The report shall contain the following: (1) An assessment of the extent to which property and services acquired using authorities provided under this section contributed to the capacity of the Federal workforce to facilitate the mission of the Department as described in section 101. (2) An assessment of the extent to which prices for property and services acquired using authorities provided under this section reflected the best value. (3) The number of employees designated by each executive agency under subsection (b)(1). (4) An assessment of the extent to which the Department has implemented subsections (b)(2) and (b)(3) to monitor the use of procurement authority by employees designated under subsection (b)(1). (5) Any recommendations of the Comptroller General for improving the effectiveness of the implementation of the provisions of this section. SEC. 834. [6 U.S.C. 394] UNSOLICITED PROPOSALS. (a) Regulations Required.--Within 1 year of the date of enactment of this Act, the Federal Acquisition Regulation shall be revised to include regulations with regard to unsolicited proposals. (b) Content of Regulations.--The regulations prescribed under subsection (a) shall require that before initiating a comprehensive evaluation, an agency contact point shall consider, among other factors, that the proposal-- (1) is not submitted in response to a previously published agency requirement; and (2) contains technical and cost information for evaluation and overall scientific, technical or socioeconomic merit, or cost-related or price-related factors. SEC. 835. [6 U.S.C. 395] PROHIBITION ON CONTRACTS WITH CORPORATE EXPATRIATES. (a) In General.--The Secretary may not enter into any contract with a foreign incorporated entity which is treated as an inverted domestic corporation under subsection (b), or any subsidiary of such an entity. (b) Inverted Domestic Corporation.--For purposes of this section, a foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)-- (1) the entity completes before, on, or after the date of enactment of this Act, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership; (2) after the acquisition at least 80 percent of the stock (by vote or value) of the entity is held-- (A) in the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or (B) in the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and (3) the expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group. (c) Definitions and Special Rules.-- (1) Rules for application of subsection (b).--In applying subsection (b) for purposes of subsection (a), the following rules shall apply: (A) Certain stock disregarded.--There shall not be taken into account in determining ownership for purposes of subsection (b)(2)-- (i) stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or (ii) stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1). (B) Plan deemed in certain cases.--If a foreign incorporated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is 2 years before the ownership requirements of subsection (b)(2) are met, such actions shall be treated as pursuant to a plan. (C) Certain transfers disregarded.--The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section. (D) Special rule for related partnerships.--For purposes of applying subsection (b) to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated as I partnership. (E) Treatment of certain rights.--The Secretary shall prescribe such regulations as may be necessary to-- (i) treat warrants, options, contracts to acquire stock, convertible debt instruments, and other similar interests as stock; and (ii) treat stock as not stock. (2) Expanded affiliated group.--The term ``expanded affiliated group'' means an affiliated group as defined in section 1504(a) of the Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except that section 1504 of such Code shall be applied by substituting ``more than 50 percent'' for ``at least 80 percent'' each place it appears. (3) Foreign incorporated entity.--The term ``foreign incorporated entity'' means any entity which is, or but for subsection (b) would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986. (4) Other definitions.--The terms ``person'', ``domestic'', and ``foreign'' have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively. (d) Waivers.--The Secretary shall waive subsection (a) with respect to any specific contract if the Secretary determines that the waiver is required in the interest of national security. * * * * * * * Subtitle E--Human Resources Management SEC. 841. [6 U.S.C. 411] ESTABLISHMENT OF HUMAN RESOURCES MANAGEMENT SYSTEM. (a) Authority.-- (1) Sense of congress.--It is the sense of Congress that-- (A) it is extremely important that employees of the Department be allowed to participate in a meaningful way in the creation of any human resources management system affecting them; (B) such employees have the most direct knowledge of the demands of their jobs and have a direct interest in ensuring that their human resources management system is conducive to achieving optimal operational efficiencies; (C) the 21st century human resources management system envisioned for the Department should be one that benefits from the input of its employees; and (D) this collaborative effort will help secure our homeland. * * * * * * * (b) Effect on Personnel.-- (1) Nonseparation or nonreduction in grade or compensation of full-time personnel and part-time personnel holding permanent positions.--Except as otherwise provided in this Act, the transfer under this Act of full-time personnel (except special Government employees) and part-time personnel holding permanent positions shall not cause any such employee to be separated or reduced in grade or compensation for 1 year after the date of transfer to the Department. (2) Positions compensated in accordance with executive schedule.--Any person who, on the day preceding such person's date of transfer pursuant to this Act, held a position compensated in accordance with the Executive Schedule prescribed in chapter 53 of title 5, United States Code, and who, without a break in service, is appointed in the Department to a position having duties comparable to the duties performed immediately preceding such appointment shall continue to be compensated in such new position at not less than the rate provided for such position, for the duration of the service of such person in such new position. (3) Coordination rule.--Any exercise of authority under chapter 97 of title 5, United States Code (as amended by subsection (a)), including under any system established under such chapter, shall be in conformance with the requirements of this subsection. SEC. 842. [6 U.S.C. 412] LABOR-MANAGEMENT RELATIONS. (a) Limitation on Exclusionary Authority.-- (1) In general.--No agency or subdivision of an agency which is transferred to the Department pursuant to this Act shall be excluded from the coverage of chapter 71 of title 5, United States Code, as a result of any order issued under section 7103(b)(1) of such title 5 after June 18, 2002, unless-- (A) the mission and responsibilities of the agency (or subdivision) materially change; and (B) a majority of the employees within such agency (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation. (2) Exclusions allowable.--Nothing in paragraph (1) shall affect the effectiveness of any order to the extent that such order excludes any portion of an agency or subdivision of an agency as to which-- (A) recognition as an appropriate unit has never been conferred for purposes of chapter 71 of such title 5; or (B) any such recognition has been revoked or otherwise terminated as a result of a determination under subsection (b)(1). (b) Provisions Relating to Bargaining Units.-- (1) Limitation relating to appropriate units.--Each unit which is recognized as an appropriate unit for purposes of chapter 71 of title 5, United States Code, as of the day before the effective date of this Act (and any subdivision of any such unit) shall, if such unit (or subdivision) is transferred to the Department pursuant to this Act, continue to be so recognized for such purposes, unless-- (A) the mission and responsibilities of such unit (or subdivision) materially change; and (B) a majority of the employees within such unit (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation. (2) Limitation relating to positions or employees.--No position or employee within a unit (or subdivision of a unit) as to which continued recognition is given in accordance with paragraph (1) shall be excluded from such unit (or subdivision), for purposes of chapter 71 of such title 5, unless the primary job duty of such position or employee-- (A) materially changes; and (B) consists of intelligence, counterintelligence, or investigative work directly related to terrorism investigation. In the case of any positions within a unit (or subdivision) which are first established on or after the effective date of this Act and any employees first appointed on or after such date, the preceding sentence shall be applied disregarding subparagraph (A). (c) Waiver.--If the President determines that the application of subsections (a), (b), and (d) would have a substantial adverse impact on the ability of the Department to protect homeland security, the President may waive the application of such subsections 10 days after the President has submitted to Congress a written explanation of the reasons for such determination. (d) Coordination Rule.--No other provision of this Act or of any amendment made by this Act may be construed or applied in a manner so as to limit, supersede, or otherwise affect the provisions of this section, except to the extent that it does so by specific reference to this section. (e) Rule of Construction.--Nothing in section 9701(e) of title 5, United States Code, shall be considered to apply with respect to any agency or subdivision of any agency, which is excluded from the coverage of chapter 71 of title 5, United States Code, by virtue of an order issued in accordance with section 7103(b) of such title and the preceding provisions of this section (as applicable), or to any employees of any such agency or subdivision or to any individual or entity representing any such employees or any representatives thereof. SEC. 843. [6 U.S.C. 413] USE OF COUNTERNARCOTICS ENFORCEMENT ACTIVITIES IN CERTAIN EMPLOYEE PERFORMANCE APPRAISALS. (a) In General.--Each subdivision of the Department that is a National Drug Control Program Agency shall include as one of the criteria in its performance appraisal system, for each employee directly or indirectly involved in the enforcement of Federal, State, or local narcotics laws, the performance of that employee with respect to the enforcement of Federal, State, or local narcotics laws, relying to the greatest extent practicable on objective performance measures, including-- (1) the contribution of that employee to seizures of narcotics and arrests of violators of Federal, State, or local narcotics laws; and (2) the degree to which that employee cooperated with or contributed to the efforts of other employees, either within the Department or other Federal, State, or local agencies, in counternarcotics enforcement. (b) Definitions.--For purposes of this section-- (1) the term ``National Drug Control Program Agency'' means-- (A) a National Drug Control Program Agency, as defined in section 702(7) of the Office of National Drug Control Policy Reauthorization Act of 1998 (as last in effect); and (B) any subdivision of the Department that has a significant counternarcotics responsibility, as determined by-- (i) the counternarcotics officer, appointed under section 878; or (ii) if applicable, the counternarcotics officer's successor in function (as determined by the Secretary); and (2) the term ``performance appraisal system'' means a system under which periodic appraisals of job performance of employees are made, whether under chapter 43 of title 5, United States Code, or otherwise. SEC. 844. HOMELAND SECURITY ROTATION PROGRAM. (a) Establishment.-- (1) In general.--Not later than 180 days after the date of enactment of this section, the Secretary shall establish the Homeland Security Rotation Program (in this section referred to as the ``Rotation Program'') for employees of the Department. The Rotation Program shall use applicable best practices, including those from the Chief Human Capital Officers Council. (2) Goals.--The Rotation Program established by the Secretary shall-- (A) be established in accordance with the Human Capital Strategic Plan of the Department; (B) provide middle and senior level employees in the Department the opportunity to broaden their knowledge through exposure to other components of the Department; (C) expand the knowledge base of the Department by providing for rotational assignments of employees to other components; (D) build professional relationships and contacts among the employees in the Department; (E) invigorate the workforce with exciting and professionally rewarding opportunities; (F) incorporate Department human capital strategic plans and activities, and address critical human capital deficiencies, recruitment and retention efforts, and succession planning within the Federal workforce of the Department; and (G) complement and incorporate (but not replace) rotational programs within the Department in effect on the date of enactment of this section. (3) Administration.-- (A) In general.--The Chief Human Capital Officer shall administer the Rotation Program. (B) Responsibilities.--The Chief Human Capital Officer shall-- (i) provide oversight of the establishment and implementation of the Rotation Program; (ii) establish a framework that supports the goals of the Rotation Program and promotes cross-disciplinary rotational opportunities; (iii) establish eligibility for employees to participate in the Rotation Program and select participants from employees who apply; (iv) establish incentives for employees to participate in the Rotation Program, including promotions and employment preferences; (v) ensure that the Rotation Program provides professional education and training; (vi) ensure that the Rotation Program develops qualified employees and future leaders with broad-based experience throughout the Department; (vii) provide for greater interaction among employees in components of the Department; and (viii) coordinate with rotational programs within the Department in effect on the date of enactment of this section. (4) Allowances, privileges, and benefits.--All allowances, privileges, rights, seniority, and other benefits of employees participating in the Rotation Program shall be preserved. (5) Reporting.--Not later than 180 days after the date of the establishment of the Rotation Program, the Secretary shall submit a report on the status of the Rotation Program, including a description of the Rotation Program, the number of employees participating, and how the Rotation Program is used in succession planning and leadership development to the appropriate committees of Congress. SEC. 845. HOMELAND SECURITY EDUCATION PROGRAM. (a) Establishment.--The Secretary, acting through the Administrator, shall establish a graduate-level Homeland Security Education Program in the National Capital Region to provide educational opportunities to senior Federal officials and selected State and local officials with homeland security and emergency management responsibilities. The Administrator shall appoint an individual to administer the activities under this section. (b) Leveraging of Existing Resources.--To maximize efficiency and effectiveness in carrying out the Program, the Administrator shall use existing Department-reviewed Master's Degree curricula in homeland security, including curricula pending accreditation, together with associated learning materials, quality assessment tools, digital libraries, exercise systems and other educational facilities, including the National Domestic Preparedness Consortium, the National Fire Academy, and the Emergency Management Institute. The Administrator may develop additional educational programs, as appropriate. (c) Student Enrollment.-- (1) Sources.--The student body of the Program shall include officials from Federal, State, local, and tribal governments, and from other sources designated by the Administrator. (2) Enrollment priorities and selection criteria.-- The Administrator shall establish policies governing student enrollment priorities and selection criteria that are consistent with the mission of the Program. (3) Diversity.--The Administrator shall take reasonable steps to ensure that the student body represents racial, gender, and ethnic diversity. (d) Service Commitment.-- (1) In general.--Before any employee selected for the Program may be assigned to participate in the program, the employee shall agree in writing-- (A) to continue in the service of the agency sponsoring the employee during the 2- year period beginning on the date on which the employee completes the program, unless the employee is involuntarily separated from the service of that agency for reasons other than a reduction in force; and (B) to pay to the Government the amount of the additional expenses incurred by the Government in connection with the employee's education if the employee is voluntarily separated from the service to the agency before the end of the period described in subparagraph (A). (2) Payment of expenses.-- (A) Exemption.--An employee who leaves the service of the sponsoring agency to enter into the service of another agency in any branch of the Government shall not be required to make a payment under paragraph (1)(B), unless the head of the agency that sponsored the education of the employee notifies that employee before the date on which the employee enters the service of the other agency that payment is required under that paragraph. (B) Amount of payment.--If an employee is required to make a payment under paragraph (1)(B), the agency that sponsored the education of the employee shall determine the amount of the payment, except that such amount may not exceed the pro rata share of the expenses incurred for the time remaining in the 2-year period. (3) Recovery of payment.--If an employee who is required to make a payment under this subsection does not make the payment, a sum equal to the amount of the expenses incurred by the Government for the education of that employee is recoverable by the Government from the employee or his estate by-- (A) setoff against accrued pay, compensation, amount of retirement credit, or other amount due the employee from the Government; or (B) such other method as is provided by lay for the recovery of amounts owing to the Government. Subtitle F--Federal Emergency Procurement Flexibility SEC. 851. [6 U.S.C. 421] DEFINITION. In this subtitle, the term ``executive agency'' has the meaning given that term under section 4(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)). SEC. 852. [6 U.S.C. 422] PROCUREMENTS FOR DEFENSE AGAINST OR RECOVERY FROM TERRORISM OR NUCLEAR, BIOLOGICAL, CHEMICAL, OR RADIOLOGICAL ATTACK. The authorities provided in this subtitle apply to any procurement of property or services by or for an executive agency that, as determined by the head of the executive agency, are to be used to facilitate defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack, but only if a solicitation of offers for the procurement is issued during the 1-year period beginning on the date of the enactment of this Act. SEC. 853. [6 U.S.C. 423] INCREASED SIMPLIFIED ACQUISITION THRESHOLD FOR PROCUREMENTS IN SUPPORT OF HUMANITARIAN OR PEACEKEEPING OPERATIONS OR CONTINGENCY OPERATIONS. (a) Temporary Threshold Amounts.--For a procurement referred to in section 852 that is carried out in support of a humanitarian or peacekeeping operation or a contingency operation, the simplified acquisition threshold definitions shall be applied as if the amount determined under the exception provided for such an operation in those definitions were-- (1) in the case of a contract to be awarded and performed, or purchase to be made, inside the United States, $200,000; or (2) in the case of a contract to be awarded and performed, or purchase to be made, outside the United States, $300,000. (b) Simplified Acquisition Threshold Definitions.--In this section, the term ``simplified acquisition threshold definitions'' means the following: (1) Section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)). (2) Section 309(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(d)). (3) Section 2302(7) of title 10, United States Code. (c) Small Business Reserve.--For a procurement carried out pursuant to subsection (a), section 15(j) of the Small Business Act (15 U.S.C. 644(j)) shall be applied as if the maximum anticipated value identified therein is equal to the amounts referred to in subsection (a). SEC. 854. [6 U.S.C. 424] INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN PROCUREMENTS. In the administration of section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428) with respect to a procurement referred to in section 852, the amount specified in subsections (c), (d), and (f) of such section 32 shall be deemed to be $7,500. SEC. 855. [6 U.S.C. 425] APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORITIES TO CERTAIN PROCUREMENTS. (a) Authority.-- (1) In general.--The head of an executive agency may apply the provisions of law listed in paragraph (2) to a procurement referred to in section 852 without regard to whether the property or services are commercial items. (2) Commercial item laws.--The provisions of law referred to in paragraph (1) are as follows: (A) Sections 31 and 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 427, 430). (B) Section 2304(g) of title 10, United States Code. (C) Section 303(g) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)). (b) Inapplicability of Limitation on Use of Simplified Acquisition Procedures.-- (1) In general.--The $5,000,000 limitation provided in section 31(a)(2) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(2)), section 2304(g)(1)(B) of title 10, United States Code, and section 303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(B)) shall not apply to purchases of property or services to which any of the provisions of law referred to in subsection (a) are applied under the authority of this section. (2) OMB guidance.--The Director of the Office of Management and Budget shall issue guidance and procedures for the use of simplified acquisition procedures for a purchase of property or services in excess of $5,000,000 under the authority of this section. (c) Continuation of Authority for Simplified Purchase Procedures.--Authority under a provision of law referred to in subsection (a)(2) that expires under section 4202(e) of the Clinger-Cohen Act of 1996 (divisions D and E of Public Law 104- 106; 10 U.S.C. 2304 note) shall, notwithstanding such section, continue to apply for use by the head of an executive agency as provided in subsections (a) and (b). SEC. 856. [6 U.S.C. 426] USE OF STREAMLINED PROCEDURES. (a) Required Use.--The head of an executive agency shall, when appropriate, use streamlined acquisition authorities and procedures authorized by law for a procurement referred to in section 852, including authorities and procedures that are provided under the following provisions of law: (1) Federal property and administrative services act of 1949.--In title III of the Federal Property and Administrative Services Act of 1949: (A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section 303 (41 U.S.C. 253), relating to use of procedures other than competitive procedures under certain circumstances (subject to subsection (e) of such section). (B) Section 303J (41 U.S.C. 253j), relating to orders under task and delivery order contracts. (2) Title 10, united states code.--In chapter 137 of title 10, United States Code: (A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section 2304, relating to use of procedures other than competitive procedures under certain circumstances (subject to subsection (e) of such section). (B) Section 2304c, relating to orders under task and delivery order contracts. (3) Office of federal procurement policy act.-- Paragraphs (1)(B), (1)(D), and (2) of section 18(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 416(c)), relating to inapplicability of a requirement for procurement notice. (b) Waiver of Certain Small Business Threshold Requirements.--Subclause (II) of section 8(a)(1)(D)(i) of the Small Business Act (15 U.S.C. 637(a)(1)(D)(i)) and clause (ii) of section 31(b)(2)(A) of such Act (15 U.S.C. 657a(b)(2)(A)) shall not apply in the use of streamlined acquisition authorities and procedures referred to in paragraphs (1)(A) and (2)(A) of subsection (a) for a procurement referred to in section 852. SEC. 857. [6 U.S.C. 427] REVIEW AND REPORT BY COMPTROLLER GENERAL. (a) Requirements.--Not later than March 31, 2004, the Comptroller General shall-- (1) complete a review of the extent to which procurements of property and services have been made in accordance with this subtitle; and (2) submit a report on the results of the review to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives. (b) Content of Report.--The report under subsection (a)(2) shall include the following matters: (1) Assessment.--The Comptroller General's assessment of-- (A) the extent to which property and services procured in accordance with this title have contributed to the capacity of the workforce of Federal Government employees within each executive agency to carry out the mission of the executive agency; and (B) the extent to which Federal Government employees have been trained on the use of technology. (2) Recommendations.--Any recommendations of the Comptroller General resulting from the assessment described in paragraph (1). (c) Consultation.--In preparing for the review under subsection (a)(1), the Comptroller shall consult with the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives on the specific issues and topics to be reviewed. The extent of coverage needed in areas such as technology integration, employee training, and human capital management, as well as the data requirements of the study, shall be included as part of the consultation. SEC. 858. [6 U.S.C. 428] IDENTIFICATION OF NEW ENTRANTS INTO THE FEDERAL MARKETPLACE. The head of each executive agency shall conduct market research on an ongoing basis to identify effectively the capabilities, including the capabilities of small businesses and new entrants into Federal contracting, that are available in the marketplace for meeting the requirements of the executive agency in furtherance of defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack. The head of the executive agency shall, to the maximum extent practicable, take advantage of commercially available market research methods, including use of commercial databases, to carry out the research. * * * * * * * Subtitle G--Support Anti-terrorism by Fostering Effective Technologies Act of 2002 SEC. 861. [6 U.S.C. 101 NOTE] SHORT TITLE. This subtitle may be cited as the ``Support Anti-terrorism by Fostering Effective Technologies Act of 2002'' or the ``SAFETY Act''. SEC. 862. [6 U.S.C. 441] ADMINISTRATION. (a) In General.--The Secretary shall be responsible for the administration of this subtitle. (b) Designation of Qualified Anti-Terrorism Technologies.-- The Secretary may designate anti-terrorism technologies that qualify for protection under the system of risk management set forth in this subtitle in accordance with criteria that shall include, but not be limited to, the following: (1) Prior United States Government use or demonstrated substantial utility and effectiveness. (2) Availability of the technology for immediate deployment in public and private settings. (3) Existence of extraordinarily large or extraordinarily unquantifiable potential third party liability risk exposure to the Seller or other provider of such anti-terrorism technology. (4) Substantial likelihood that such anti-terrorism technology will not be deployed unless protections under the system of risk management provided under this subtitle are extended. (5) Magnitude of risk exposure to the public if such anti-terrorism technology is not deployed. (6) Evaluation of all scientific studies that can be feasibly conducted in order to assess the capability of the technology to substantially reduce risks of harm. (7) Anti-terrorism technology that would be effective in facilitating the defense against acts of terrorism, including technologies that prevent, defeat or respond to such acts. (c) Regulations.--The Secretary may issue such regulations, after notice and comment in accordance with section 553 of title 5, United States Code, as may be necessary to carry out this subtitle. SEC. 863. [6 U.S.C. 442] LITIGATION MANAGEMENT. (a) Federal Cause of Action.-- (1) In general.--There shall exist a Federal cause of action for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti- terrorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller. The substantive law for decision in any such action shall be derived from the law, including choice of law principles, of the State in which such acts of terrorism occurred, unless such law is inconsistent with or preempted by Federal law. Such Federal cause of action shall be brought only for claims for injuries that are proximately caused by sellers that provide qualified anti-terrorism technology to Federal and non- Federal government customers. (2) Jurisdiction.--Such appropriate district court of the United States shall have original and exclusive jurisdiction over all actions for any claim for loss of property, personal injury, or death arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller. (b) Special Rules.--In an action brought under this section for damages the following provisions apply: (1) Punitive damages.--No punitive damages intended to punish or deter, exemplary damages, or other damages not intended to compensate a plaintiff for actual losses may be awarded, nor shall any party be liable for interest prior to the judgment. (2) Noneconomic damages.-- (A) In general.--Noneconomic damages may be awarded against a defendant only in an amount directly proportional to the percentage of responsibility of such defendant for the harm to the plaintiff, and no plaintiff may recover noneconomic damages unless the plaintiff suffered physical harm. (B) Definition.--For purposes of subparagraph (A), the term ``noneconomic damages'' means damages for losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, hedonic damages, injury to reputation, and any other nonpecuniary losses. (c) Collateral Sources.--Any recovery by a plaintiff in an action under this section shall be reduced by the amount of collateral source compensation, if any, that the plaintiff has received or is entitled to receive as a result of such acts of terrorism that result or may result in loss to the Seller. (d) Government Contractor Defense.-- (1) In general.--Should a product liability or other lawsuit be filed for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies approved by the Secretary, as provided in paragraphs (2) and (3) of this subsection, have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller, there shall be a rebuttable presumption that the government contractor defense applies in such lawsuit. This presumption shall only be overcome by evidence showing that the Seller acted fraudulently or with willful misconduct in submitting information to the Secretary during the course of the Secretary's consideration of such technology under this subsection. This presumption of the government contractor defense shall apply regardless of whether the claim against the Seller arises from a sale of the product to Federal Government or non-Federal Government customers. (2) Exclusive responsibility.--The Secretary will be exclusively responsible for the review and approval of anti-terrorism technology for purposes of establishing a government contractor defense in any product liability lawsuit for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies approved by the Secretary, as provided in this paragraph and paragraph (3), have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller. Upon the Seller's submission to the Secretary for approval of anti- terrorism technology, the Secretary will conduct a comprehensive review of the design of such technology and determine whether it will perform as intended, conforms to the Seller's specifications, and is safe for use as intended. The Seller will conduct safety and hazard analyses on such technology and will supply the Secretary with all such information. (3) Certificate.--For anti-terrorism technology reviewed and approved by the Secretary, the Secretary will issue a certificate of conformance to the Seller and place the anti-terrorism technology on an Approved Product List for Homeland Security. (e) Exclusion.--Nothing in this section shall in any way limit the ability of any person to seek any form of recovery from any person, government, or other entity that-- (1) attempts to commit, knowingly participates in, aids and abets, or commits any act of terrorism, or any criminal act related to or resulting from such act of terrorism; or (2) participates in a conspiracy to commit any such act of terrorism or any such criminal act. SEC. 864. [6 U.S.C. 443] RISK MANAGEMENT. (a) In General.-- (1) Liability insurance required.--Any person or entity that sells or otherwise provides a qualified anti-terrorism technology to Federal and non-Federal Government customers (``Seller'') shall obtain liability insurance of such types and in such amounts as shall be required in accordance with this section and certified by the Secretary to satisfy otherwise compensable third-party claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act. (2) Maximum amount.--For the total claims related to 1 such act of terrorism, the Seller is not required to obtain liability insurance of more than the maximum amount of liability insurance reasonably available from private sources on the world market at prices and terms that will not unreasonably distort the sales price of Seller's anti-terrorism technologies. (3) Scope of coverage.--Liability insurance obtained pursuant to this subsection shall, in addition to the Seller, protect the following, to the extent of their potential liability for involvement in the manufacture, qualification, sale, use, or operation of qualified anti-terrorism technologies deployed in defense against or response or recovery from an act of terrorism: (A) Contractors, subcontractors, suppliers, vendors and customers of the Seller. (B) Contractors, subcontractors, suppliers, and vendors of the customer. (4) Third party claims.--Such liability insurance under this section shall provide coverage against third party claims arising out of, relating to, or resulting from the sale or use of anti-terrorism technologies. (b) Reciprocal Waiver of Claims.--The Seller shall enter into a reciprocal waiver of claims with its contractors, subcontractors, suppliers, vendors and customers, and contractors and subcontractors of the customers, involved in the manufacture, sale, use or operation of qualified anti- terrorism technologies, under which each party to the waiver agrees to be responsible for losses, including business interruption losses, that it sustains, or for losses sustained by its own employees resulting from an activity resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act. (c) Extent of Liability.--Notwithstanding any other provision of law, liability for all claims against a Seller arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller, whether for compensatory or punitive damages or for contribution or indemnity, shall not be in an amount greater than the limits of liability insurance coverage required to be maintained by the Seller under this section. SEC. 865. [6 U.S.C. 444] DEFINITIONS. For purposes of this subtitle, the following definitions apply: (1) Qualified anti-terrorism technology.--For purposes of this subtitle, the term ``qualified anti- terrorism technology'' means any product, equipment, service (including support services), device, or technology (including information technology) designed, developed, modified, or procured for the specific purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm such acts might otherwise cause, that is designated as such by the Secretary. (2) Act of terrorism.--(A) The term ``act of terrorism'' means any act that the Secretary determines meets the requirements under subparagraph (B), as such requirements are further defined and specified by the Secretary. (B) Requirements.--An act meets the requirements of this subparagraph if the act-- (i) is unlawful; (ii) causes harm to a person, property, or entity, in the United States, or in the case of a domestic United States air carrier or a United States-flag vessel (or a vessel based principally in the United States on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), in or outside the United States; and (iii) uses or attempts to use instrumentalities, weapons or other methods designed or intended to cause mass destruction, injury or other loss to citizens or institutions of the United States. (3) Insurance carrier.--The term ``insurance carrier'' means any corporation, association, society, order, firm, company, mutual, partnership, individual aggregation of individuals, or any other legal entity that provides commercial property and casualty insurance. Such term includes any affiliates of a commercial insurance carrier. (4) Liability insurance.-- (A) In general.--The term ``liability insurance'' means insurance for legal liabilities incurred by the insured resulting from-- (i) loss of or damage to property of others; (ii) ensuing loss of income or extra expense incurred because of loss of or damage to property of others; (iii) bodily injury (including) to persons other than the insured or its employees; or (iv) loss resulting from debt or default of another. (5) Loss.--The term ``loss'' means death, bodily injury, or loss of or damage to property, including business interruption loss. (6) Non-federal government customers.--The term ``non-Federal Government customers'' means any customer of a Seller that is not an agency or instrumentality of the United States Government with authority under Public Law 85-804 to provide for indemnification under certain circumstances for third-party claims against its contractors, including but not limited to State and local authorities and commercial entities. Subtitle H--Miscellaneous Provisions SEC. 871. [6 U.S.C. 451] ADVISORY COMMITTEES. (a) In General.--The Secretary may establish, appoint members of, and use the services of, advisory committees, as the Secretary may deem necessary. An advisory committee established under this section may be exempted by the Secretary from Public Law 92-463, but the Secretary shall publish notice in the Federal Register announcing the establishment of such a committee and identifying its purpose and membership. Notwithstanding the preceding sentence, members of an advisory committee that is exempted by the Secretary under the preceding sentence who are special Government employees (as that term is defined in section 202 of title 18, United States Code) shall be eligible for certifications under subsection (b)(3) of section 208 of title 18, United States Code, for official actions taken as a member of such advisory committee. (b) Termination.--Any advisory committee established by the Secretary shall terminate 2 years after the date of its establishment, unless the Secretary makes a written determination to extend the advisory committee to a specified date, which shall not be more than 2 years after the date on which such determination is made. The Secretary may make any number of subsequent extensions consistent with this subsection. SEC. 872. [6 U.S.C. 452] REORGANIZATION. (a) Reorganization.--The Secretary may allocate or reallocate functions among the officers of the Department, and may establish, consolidate, alter, or discontinue organizational units within the Department, but only-- (1) pursuant to section 1502(b); or (2) after the expiration of 60 days after providing notice of such action to the appropriate congressional committees, which shall include an explanation of the rationale for the action. (b) Limitations.-- (1) In general.--Authority under subsection (a)(1) does not extend to the abolition of any agency, entity, organizational unit, program, or function established or required to be maintained by this Act. (2) Abolitions.--Authority under subsection (a)(2) does not extend to the abolition of any agency, entity, organizational unit, program, or function established or required to be maintained by statute. SEC. 873. [6 U.S.C. 453] USE OF APPROPRIATED FUNDS. (a) Disposal of Property.-- (1) Strict compliance.--If specifically authorized to dispose of real property in this or any other Act, the Secretary shall exercise this authority in strict compliance with section 204 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 485). (2) Deposit of proceeds.--The Secretary shall deposit the proceeds of any exercise of property disposal authority into the miscellaneous receipts of the Treasury in accordance with section 3302(b) of title 31, United States Code. (b) Gifts.--Except as authorized by section 2601 of title 10, United States Code, and by section 93 of title 14, United States Code, gifts \1\ or donations of services or property of or for the Department may not be accepted, used, or disposed of unless specifically permitted in advance in an appropriations Act and only under the conditions and for the purposes specified in such appropriations Act. --------------------------------------------------------------------------- \1\ Section 103(3) of Public Law 108-7 (117 Stat. 529) amends subsection (b) by inserting ``Except as authorized by section 2601 of title 10, United States Code, and by section 93 of title 14, United States Code,'' before the word ``Gifts'' in the second place it appears and by striking the letter ``G'' and inserting in lieu thereof ``g'' in the word ``Gifts'' in the second place it appears. The word ``Gifts'' appears once in the text, however, the amendments have been executed to reflect the probable intent of Congress. --------------------------------------------------------------------------- (c) Budget Request.--Under section 1105 of title 31, United States Code, the President shall submit to Congress a detailed budget request for the Department for fiscal year 2004, and for each subsequent fiscal year. SEC. 874. [6 U.S.C. 454] FUTURE YEAR HOMELAND SECURITY PROGRAM. (a) In General.--Each budget request submitted to Congress for the Department under section 1105 of title 31, United States Code, shall, at or about the same time, be accompanied by a Future Years Homeland Security Program. (b) Contents.--The Future Years Homeland Security Program under subsection (a) shall-- (1) include the same type of information, organizational structure, and level of detail as the future years defense program submitted to Congress by the Secretary of Defense under section 221 of title 10, United States Code; (2) set forth the homeland security strategy of the Department, which shall be developed and updated as appropriate annually by the Secretary, that was used to develop program planning guidance for the Future Years Homeland Security Program; and (3) include an explanation of how the resource allocations included in the Future Years Homeland Security Program correlate to the homeland security strategy set forth under paragraph (2). (c) Effective Date.--This section shall take effect with respect to the preparation and submission of the fiscal year 2005 budget request for the Department and for any subsequent fiscal year, except that the first Future Years Homeland Security Program shall be submitted not later than 90 days after the Department's fiscal year 2005 budget request is submitted to Congress. SEC. 875. [6 U.S.C. 455] MISCELLANEOUS AUTHORITIES. (a) Seal.--The Department shall have a seal, whose design is subject to the approval of the President. (b) Participation of Members of the Armed Forces.--With respect to the Department, the Secretary shall have the same authorities that the Secretary of Transportation has with respect to the Department of Transportation under section 324 of title 49, United States Code. (c) Redelegation of Functions.--Unless otherwise provided in the delegation or by law, any function delegated under this Act may be redelegated to any subordinate. SEC. 876. [6 U.S.C. 456] MILITARY ACTIVITIES. Nothing in this Act shall confer upon the Secretary any authority to engage in warfighting, the military defense of the United States, or other military activities, nor shall anything in this Act limit the existing authority of the Department of Defense or the Armed Forces to engage in warfighting, the military defense of the United States, or other military activities. SEC. 877. [6 U.S.C. 457] REGULATORY AUTHORITY AND PREEMPTION. (a) Regulatory Authority.--Except as otherwise provided in sections 306(c), 862(c), and 1706(b), this Act vests no new regulatory authority in the Secretary or any other Federal official, and transfers to the Secretary or another Federal official only such regulatory authority as exists on the date of enactment of this Act within any agency, program, or function transferred to the Department pursuant to this Act, or that on such date of enactment is exercised by another official of the executive branch with respect to such agency, program, or function. Any such transferred authority may not be exercised by an official from whom it is transferred upon transfer of such agency, program, or function to the Secretary or another Federal official pursuant to this Act. This Act may not be construed as altering or diminishing the regulatory authority of any other executive agency, except to the extent that this Act transfers such authority from the agency. (b) Preemption of State or Local Law.--Except as otherwise provided in this Act, this Act preempts no State or local law, except that any authority to preempt State or local law vested in any Federal agency or official transferred to the Department pursuant to this Act shall be transferred to the Department effective on the date of the transfer to the Department of that Federal agency or official. SEC. 878. [6 U.S.C. 458] OFFICE OF COUNTERNARCOTICS ENFORCEMENT. (a) Office.--There is established in the Department an Office of Counternarcotics Enforcement, which shall be headed by a Director appointed by the President, by and with the advice and consent of the Senate. (b) Assignment of Personnel.-- (1) In general.--The Secretary shall assign permanent staff to the Office, consistent with effective management of Department resources. (2) Liaisons.--The Secretary shall designate senior employees from each appropriate subdivision of the Department that has significant counternarcotics responsibilities to act as a liaison between that subdivision and the Office of Counternarcotics Enforcement. (c) Limitation on Concurrent Employment.--The Director of the Office of Counternarcotics Enforcement shall not be employed by, assigned to, or serve as the head of, any other branch of the Federal Government, any State or local government, or any subdivision of the Department other than the Office of Counternarcotics Enforcement. (d) Responsibilities.--The Secretary shall direct the Director of the Office of Counternarcotics Enforcement-- (1) to coordinate policy and operations within the Department, between the Department and other Federal departments and agencies, and between the Department and State and local agencies with respect to stopping the entry of illegal drugs into the United States; (2) to ensure the adequacy of resources within the Department for stopping the entry of illegal drugs into the United States; (3) to recommend the appropriate financial and personnel resources necessary to help the Department better fulfill its responsibility to stop the entry of illegal drugs into the United States; (4) within the Joint Terrorism Task Force construct to track and sever connections between illegal drug trafficking and terrorism; and (5) to be a representative of the Department on all task forces, committees, or other entities whose purpose is to coordinate the counternarcotics enforcement activities of the Department and other Federal, State or local agencies. (e) Savings Clause.--Nothing in this section shall be construed to authorize direct control of the operations conducted by the Directorate of Border and Transportation Security, the Coast Guard, or joint terrorism task forces. (f) Reports to Congress.-- (1) Annual budget review.--The Director of the Office of Counternarcotics Enforcement shall, not later than 30 days after the submission by the President to Congress of any request for expenditures for the Department, submit to the Committees on Appropriations and the authorizing committees of jurisdiction of the House of Representatives and the Senate a review and evaluation of such request. The review and evaluation shall-- (A) identify any request or subpart of any request that affects or may affect the counternarcotics activities of the Department or any of its subdivisions, or that affects the ability of the Department or any subdivision of the Department to meet its responsibility to stop the entry of illegal drugs into the United States; (B) describe with particularity how such requested funds would be or could be expended in furtherance of counternarcotics activities; and (C) compare such requests with requests for expenditures and amounts appropriated by Congress in the previous fiscal year. (2) Evaluation of counternarcotics activities.--The Director of the Office of Counternarcotics Enforcement shall, not later than February 1 of each year, submit to the Committees on Appropriations and the authorizing committees of jurisdiction of the House of Representatives and the Senate a review and evaluation of the counternarcotics activities of the Department for the previous fiscal year. The review and evaluation shall-- (A) describe the counternarcotics activities of the Department and each subdivision of the Department (whether individually or in cooperation with other subdivisions of the Department, or in cooperation with other branches of the Federal Government or with State or local agencies), including the methods, procedures, and systems (including computer systems) for collecting, analyzing, sharing, and disseminating information concerning narcotics activity within the Department and between the Department and other Federal, State, and local agencies; (B) describe the results of those activities, using quantifiable data whenever possible; (C) state whether those activities were sufficient to meet the responsibility of the Department to stop the entry of illegal drugs into the United States, including a description of the performance measures of effectiveness that were used in making that determination; and (D) recommend, where appropriate, changes to those activities to improve the performance of the Department in meeting its responsibility to stop the entry of illegal drugs into the United States. (3) Classified or law enforcement sensitive information.--Any content of a review and evaluation described in the reports required in this subsection that involves information classified under criteria established by an Executive order, or whose public disclosure, as determined by the Secretary, would be detrimental to the law enforcement or national security activities of the Department or any other Federal, State, or local agency, shall be presented to Congress separately from the rest of the review and evaluation. SEC. 879. [6 U.S.C. 459] OFFICE OF INTERNATIONAL AFFAIRS. (a) Establishment.--There is established within the Office of the Secretary an Office of International Affairs. The Office shall be headed by a Director, who shall be a senior official appointed by the Secretary. (b) Duties of the Director.--The Director shall have the following duties: (1) To promote information and education exchange with nations friendly to the United States in order to promote sharing of best practices and technologies relating to homeland security. Such exchange shall include the following: (A) Exchange of information on research and development on homeland security technologies. (B) Joint training exercises of first responders. (C) Exchange of expertise on terrorism prevention, response, and crisis management. (2) To identify areas for homeland security information and training exchange where the United States has a demonstrated weakness and another friendly nation or nations have a demonstrated expertise. (3) To plan and undertake international conferences, exchange programs, and training activities. (4) To manage international activities within the Department in coordination with other Federal officials with responsibility for counter-terrorism matters. SEC. 880. [6 U.S.C. 460] PROHIBITION OF THE TERRORISM INFORMATION AND PREVENTION SYSTEM. Any and all activities of the Federal Government to implement the proposed component program of the Citizen Corps known as Operation TIPS (Terrorism Information and Prevention System) are hereby prohibited. SEC. 881. [6 U.S.C. 461] REVIEW OF PAY AND BENEFIT PLANS. Notwithstanding any other provision of this Act, the Secretary shall, in consultation with the Director of the Office of Personnel Management, review the pay and benefit plans of each agency whose functions are transferred under this Act to the Department and, within 90 days after the date of enactment, submit a plan to the President of the Senate and the Speaker of the House of Representatives and the appropriate committees and subcommittees of Congress, for ensuring, to the maximum extent practicable, the elimination of disparities in pay and benefits throughout the Department, especially among law enforcement personnel, that are inconsistent with merit system principles set forth in section 2301 of title 5, United States Code. SEC. 882. [6 U.S.C. 462] OFFICE FOR NATIONAL CAPITAL REGION COORDINATION. (a) Establishment.-- (1) In general.--There is established within the Office of the Secretary the Office of National Capital Region Coordination, to oversee and coordinate Federal programs for and relationships with State, local, and regional authorities in the National Capital Region, as defined under section 2674(f)(2) of title 10, United States Code. (2) Director.--The Office established under paragraph (1) shall be headed by a Director, who shall be appointed by the Secretary. (3) Cooperation.--The Secretary shall cooperate with the Mayor of the District of Columbia, the Governors of Maryland and Virginia, and other State, local, and regional officers in the National Capital Region to integrate the District of Columbia, Maryland, and Virginia into the planning, coordination, and execution of the activities of the Federal Government for the enhancement of domestic preparedness against the consequences of terrorist attacks. (b) Responsibilities.--The Office established under subsection (a)(1) shall-- (1) coordinate the activities of the Department relating to the National Capital Region, including cooperation with the Office for State and Local Government Coordination; (2) assess, and advocate for, the resources needed by State, local, and regional authorities in the National Capital Region to implement efforts to secure the homeland; (3) provide State, local, and regional authorities in the National Capital Region with regular information, research, and technical support to assist the efforts of State, local, and regional authorities in the National Capital Region in securing the homeland; (4) develop a process for receiving meaningful input from State, local, and regional authorities and the private sector in the National Capital Region to assist in the development of the homeland security plans and activities of the Federal Government; (5) coordinate with Federal agencies in the National Capital Region on terrorism preparedness, to ensure adequate planning, information sharing, training, and execution of the Federal role in domestic preparedness activities; (6) coordinate with Federal, State, local, and regional agencies, and the private sector in the National Capital Region on terrorism preparedness to ensure adequate planning, information sharing, training, and execution of domestic preparedness activities among these agencies and entities; and (7) serve as a liaison between the Federal Government and State, local, and regional authorities, and private sector entities in the National Capital Region to facilitate access to Federal grants and other programs. (c) Annual Report.--The Office established under subsection (a) shall submit an annual report to Congress that includes-- (1) the identification of the resources required to fully implement homeland security efforts in the National Capital Region; (2) an assessment of the progress made by the National Capital Region in implementing homeland security efforts; and (3) recommendations to Congress regarding the additional resources needed to fully implement homeland security efforts in the National Capital Region. (d) Limitation.--Nothing contained in this section shall be construed as limiting the power of State and local governments. SEC. 883. [6 U.S.C. 463] REQUIREMENT TO COMPLY WITH LAWS PROTECTING EQUAL EMPLOYMENT OPPORTUNITY AND PROVIDING WHISTLEBLOWER PROTECTIONS. Nothing in this Act shall be construed as exempting the Department from requirements applicable with respect to executive agencies-- (1) to provide equal employment protection for employees of the Department (including pursuant to the provisions in section 2302(b)(1) of title 5, United States Code, and the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (Public Law 107-174)); or (2) to provide whistleblower protections for employees of the Department (including pursuant to the provisions in section 2302(b)(8) and (9) of such title and the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002). SEC. 884. [6 U.S.C. 464] FEDERAL LAW ENFORCEMENT TRAINING CENTER. (a) In General.--The transfer of an authority or an agency under this Act to the Department of Homeland Security does not affect training agreements already entered into with the Federal Law Enforcement Training Center with respect to the training of personnel to carry out that authority or the duties of that transferred agency. (b) Continuity of Operations.--All activities of the Federal Law Enforcement Training Center transferred to the Department of Homeland Security under this Act shall continue to be carried out at the locations such activities were carried out before such transfer. SEC. 885. [6 U.S.C. 465] JOINT INTERAGENCY TASK FORCE. (a) Establishment.--The Secretary may establish and operate a permanent Joint Interagency Homeland Security Task Force composed of representatives from military and civilian agencies of the United States Government for the purposes of anticipating terrorist threats against the United States and taking appropriate actions to prevent harm to the United States. (b) Structure.--It is the sense of Congress that the Secretary should model the Joint Interagency Homeland Security Task Force on the approach taken by the Joint Interagency Task Forces for drug interdiction at Key West, Florida and Alameda, California, to the maximum extent feasible and appropriate. SEC. 886. [6 U.S.C. 466] SENSE OF CONGRESS REAFFIRMING THE CONTINUED IMPORTANCE AND APPLICABILITY OF THE POSSE COMITATUS ACT. (a) Findings.--Congress finds the following: (1) Section 1385 of title 18, United States Code (commonly known as the ``Posse Comitatus Act''), prohibits the use of the Armed Forces as a posse comitatus to execute the laws except in cases and under circumstances expressly authorized by the Constitution or Act of Congress. (2) Enacted in 1878, the Posse Comitatus Act was expressly intended to prevent United States Marshals, on their own initiative, from calling on the Army for assistance in enforcing Federal law. (3) The Posse Comitatus Act has served the Nation well in limiting the use of the Armed Forces to enforce the law. (4) Nevertheless, by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President's obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency. (5) Existing laws, including chapter 15 of title 10, United States Code (commonly known as the ``Insurrection Act''), and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), grant the President broad powers that may be invoked in the event of domestic emergencies, including an attack against the Nation using weapons of mass destruction, and these laws specifically authorize the President to use the Armed Forces to help restore public order. (b) Sense of Congress.--Congress reaffirms the continued importance of section 1385 of title 18, United States Code, and it is the sense of Congress that nothing in this Act should be construed to alter the applicability of such section to any use of the Armed Forces as a posse comitatus to execute the laws. SEC. 887. [6 U.S.C. 467] COORDINATION WITH THE DEPARTMENT OF HEALTH AND HUMAN SERVICES UNDER THE PUBLIC HEALTH SERVICE ACT. (a) In General.--The annual Federal response plan developed by the Department shall be consistent with section 319 of the Public Health Service Act (42 U.S.C. 247d). (b) Disclosures Among Relevant Agencies.-- (1) In general.--Full disclosure among relevant agencies shall be made in accordance with this subsection. (2) Public health emergency.--During the period in which the Secretary of Health and Human Services has declared the existence of a public health emergency under section 319(a) of the Public Health Service Act (42 U.S.C. 247d(a)), the Secretary of Health and Human Services shall keep relevant agencies, including the Department of Homeland Security, the Department of Justice, and the Federal Bureau of Investigation, fully and currently informed. (3) Potential public health emergency.--In cases involving, or potentially involving, a public health emergency, but in which no determination of an emergency by the Secretary of Health and Human Services under section 319(a) of the Public Health Service Act (42 U.S.C. 247d(a)), has been made, all relevant agencies, including the Department of Homeland Security, the Department of Justice, and the Federal Bureau of Investigation, shall keep the Secretary of Health and Human Services and the Director of the Centers for Disease Control and Prevention fully and currently informed. SEC. 888. [6 U.S.C. 468] PRESERVING COAST GUARD MISSION PERFORMANCE. (a) Definitions.--In this section: (1) Non-homeland security missions.--The term ``non-homeland security missions'' means the following missions of the Coast Guard: (A) Marine safety. (B) Search and rescue. (C) Aids to navigation. (D) Living marine resources (fisheries law enforcement). (E) Marine environmental protection. (F) Ice operations. (2) Homeland security missions.--The term ``homeland security missions'' means the following missions of the Coast Guard: (A) Ports, waterways and coastal security. (B) Drug interdiction. (C) Migrant interdiction. (D) Defense readiness. (E) Other law enforcement. (b) Transfer.--There are transferred to the Department the authorities, functions, personnel, and assets of the Coast Guard, which shall be maintained as a distinct entity within the Department, including the authorities and functions of the Secretary of Transportation relating thereto. (c) Maintenance of Status of Functions and Assets.-- Notwithstanding any other provision of this Act, the authorities, functions, and capabilities of the Coast Guard to perform its missions shall be maintained intact and without significant reduction after the transfer of the Coast Guard to the Department, except as specified in subsequent Acts. (d) Certain Transfers Prohibited.--No mission, function, or asset (including for purposes of this subsection any ship, aircraft, or helicopter) of the Coast Guard may be diverted to the principal and continuing use of any other organization, unit, or entity of the Department, except for details or assignments that do not reduce the Coast Guard's capability to perform its missions. (e) Changes to Missions.-- (1) Prohibition.--The Secretary may not substantially or significantly reduce the missions of the Coast Guard or the Coast Guard's capability to perform those missions, except as specified in subsequent Acts. (2) Waiver.--The Secretary may waive the restrictions under paragraph (1) for a period of not to exceed 90 days upon a declaration and certification by the Secretary to Congress that a clear, compelling, and immediate need exists for such a waiver. A certification under this paragraph shall include a detailed justification for the declaration and certification, including the reasons and specific information that demonstrate that the Nation and the Coast Guard cannot respond effectively if the restrictions under paragraph (1) are not waived. (f) Annual Review.-- (1) In general.--The Inspector General of the Department shall conduct an annual review that shall assess thoroughly the performance by the Coast Guard of all missions of the Coast Guard (including non-homeland security missions and homeland security missions) with a particular emphasis on examining the non-homeland security missions. (2) Report.--The report under this paragraph shall be submitted to-- (A) the Committee on Governmental Affairs of the Senate; (B) the Committee on Government Reform of the House of Representatives; (C) the Committees on Appropriations of the Senate and the House of Representatives; (D) the Committee on Commerce, Science, and Transportation of the Senate; and (E) the Committee on Transportation and Infrastructure of the House of Representatives. (g) Direct Reporting to Secretary.--Upon the transfer of the Coast Guard to the Department, the Commandant shall report directly to the Secretary without being required to report through any other official of the Department. (h) Operation as a Service in the Navy.--None of the conditions and restrictions in this section shall apply when the Coast Guard operates as a service in the Navy under section 3 of title 14, United States Code. (i) Report on Accelerating the Integrated Deepwater System.--Not later than 90 days after the date of enactment of this Act, the Secretary, in consultation with the Commandant of the Coast Guard, shall submit a report to the Committee on Commerce, Science, and Transportation of the Senate, the Committee on Transportation and Infrastructure of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives that-- (1) analyzes the feasibility of accelerating the rate of procurement in the Coast Guard's Integrated Deepwater System from 20 years to 10 years; (2) includes an estimate of additional resources required; (3) describes the resulting increased capabilities; (4) outlines any increases in the Coast Guard's homeland security readiness; (5) describes any increases in operational efficiencies; and (6) provides a revised asset phase-in time line. * * * * * * * SEC. 889. HOMELAND SECURITY FUNDING ANALYSIS IN PRESIDENT'S BUDGET. (a) * * * * * * * * * * (c) [31 U.S.C. 1105 note] Effective Date.--This section and the amendment made by this section shall apply beginning with respect to the fiscal year 2005 budget submission. * * * * * * * Subtitle I--Information Sharing SEC. 891. [6 U.S.C. 481] SHORT TITLE; FINDINGS; AND SENSE OF CONGRESS. (a) Short Title.--This subtitle may be cited as the ``Homeland Security Information Sharing Act''. (b) Findings.--Congress finds the following: (1) The Federal Government is required by the Constitution to provide for the common defense, which includes terrorist attack. (2) The Federal Government relies on State and local personnel to protect against terrorist attack. (3) The Federal Government collects, creates, manages, and protects classified and sensitive but unclassified information to enhance homeland security. (4) Some homeland security information is needed by the State and local personnel to prevent and prepare for terrorist attack. (5) The needs of State and local personnel to have access to relevant homeland security information to combat terrorism must be reconciled with the need to preserve the protected status of such information and to protect the sources and methods used to acquire such information. (6) Granting security clearances to certain State and local personnel is one way to facilitate the sharing of information regarding specific terrorist threats among Federal, State, and local levels of government. (7) Methods exist to declassify, redact, or otherwise adapt classified information so it may be shared with State and local personnel without the need for granting additional security clearances. (8) State and local personnel have capabilities and opportunities to gather information on suspicious activities and terrorist threats not possessed by Federal agencies. (9) The Federal Government and State and local governments and agencies in other jurisdictions may benefit from such information. (10) Federal, State, and local governments and intelligence, law enforcement, and other emergency preparation and response agencies must act in partnership to maximize the benefits of information gathering and analysis to prevent and respond to terrorist attacks. (11) Information systems, including the National Law Enforcement Telecommunications System and the Terrorist Threat Warning System, have been established for rapid sharing of classified and sensitive but unclassified information among Federal, State, and local entities. (12) Increased efforts to share homeland security information should avoid duplicating existing information systems. (c) Sense of Congress.--It is the sense of Congress that Federal, State, and local entities should share homeland security information to the maximum extent practicable, with special emphasis on hard-to-reach urban and rural communities. SEC. 892. [6 U.S.C. 482] FACILITATING HOMELAND SECURITY INFORMATION SHARING PROCEDURES. (a) Procedures for Determining Extent of Sharing of Homeland Security Information.-- (1) The President shall prescribe and implement procedures under which relevant Federal agencies-- (A) share relevant and appropriate homeland security information with other Federal agencies, including the Department, and appropriate State and local personnel; (B) identify and safeguard homeland security information that is sensitive but unclassified; and (C) to the extent such information is in classified form, determine whether, how, and to what extent to remove classified information, as appropriate, and with which such personnel it may be shared after such information is removed. (2) The President shall ensure that such procedures apply to all agencies of the Federal Government. (3) Such procedures shall not change the substantive requirements for the classification and safeguarding of classified information. (4) Such procedures shall not change the requirements and authorities to protect sources and methods. (b) Procedures for Sharing of Homeland Security Information.-- (1) Under procedures prescribed by the President, all appropriate agencies, including the intelligence community, shall, through information sharing systems, share homeland security information with Federal agencies and appropriate State and local personnel to the extent such information may be shared, as determined in accordance with subsection (a), together with assessments of the credibility of such information. (2) Each information sharing system through which information is shared under paragraph (1) shall-- (A) have the capability to transmit unclassified or classified information, though the procedures and recipients for each capability may differ; (B) have the capability to restrict delivery of information to specified subgroups by geographic location, type of organization, position of a recipient within an organization, or a recipient's need to know such information; (C) be configured to allow the efficient and effective sharing of information; and (D) be accessible to appropriate State and local personnel. (3) The procedures prescribed under paragraph (1) shall establish conditions on the use of information shared under paragraph (1)-- (A) to limit the redissemination of such information to ensure that such information is not used for an unauthorized purpose; (B) to ensure the security and confidentiality of such information; (C) to protect the constitutional and statutory rights of any individuals who are subjects of such information; and (D) to provide data integrity through the timely removal and destruction of obsolete or erroneous names and information. (4) The procedures prescribed under paragraph (1) shall ensure, to the greatest extent practicable, that the information sharing system through which information is shared under such paragraph include existing information sharing systems, including, but not limited to, the National Law Enforcement Telecommunications System, the Regional Information Sharing System, and the Terrorist Threat Warning System of the Federal Bureau of Investigation. (5) Each appropriate Federal agency, as determined by the President, shall have access to each information sharing system through which information is shared under paragraph (1), and shall therefore have access to all information, as appropriate, shared under such paragraph. (6) The procedures prescribed under paragraph (1) shall ensure that appropriate State and local personnel are authorized to use such information sharing systems-- (A) to access information shared with such personnel; and (B) to share, with others who have access to such information sharing systems, the homeland security information of their own jurisdictions, which shall be marked appropriately as pertaining to potential terrorist activity. (7) Under procedures prescribed jointly by the Director of Central Intelligence and the Attorney General, each appropriate Federal agency, as determined by the President, shall review and assess the information shared under paragraph (6) and integrate such information with existing intelligence. (c) Sharing of Classified Information and Sensitive but Unclassified Information With State and Local Personnel.-- (1) The President shall prescribe procedures under which Federal agencies may, to the extent the President considers necessary, share with appropriate State and local personnel homeland security information that remains classified or otherwise protected after the determinations prescribed under the procedures set forth in subsection (a). (2) It is the sense of Congress that such procedures may include 1 or more of the following means: (A) Carrying out security clearance investigations with respect to appropriate State and local personnel. (B) With respect to information that is sensitive but unclassified, entering into nondisclosure agreements with appropriate State and local personnel. (C) Increased use of information-sharing partnerships that include appropriate State and local personnel, such as the Joint Terrorism Task Forces of the Federal Bureau of Investigation, the Anti-Terrorism Task Forces of the Department of Justice, and regional Terrorism Early Warning Groups. (3)(A) The Secretary shall establish a program to provide appropriate training to officials described in subparagraph (B) in order to assist such officials in-- (i) identifying sources of potential terrorist threats through such methods as the Secretary determines appropriate; (ii) reporting information relating to such potential terrorist threats to the appropriate Federal agencies in the appropriate form and manner; (iii) assuring that all reported information is systematically submitted to and passed on by the Department for use by appropriate Federal agencies; and (iv) understanding the mission and roles of the intelligence community to promote more effective information sharing among Federal, State, and local officials and representatives of the private sector to prevent terrorist attacks against the United States. (B) The officials referred to in subparagraph (A) are officials of State and local government agencies and representatives of private sector entities with responsibilities relating to the oversight and management of first responders, counterterrorism activities, or critical infrastructure. (C) The Secretary shall consult with the Attorney General to ensure that the training program established in subparagraph (A) does not duplicate the training program established in section 908 of the USA PATRIOT Act (Public Law 107-56; 28 U.S.C. 509 note). (D) The Secretary shall carry out this paragraph in consultation with the Director of Central Intelligence and the Attorney General. (d) Responsible Officials.--For each affected Federal agency, the head of such agency shall designate an official to administer this Act with respect to such agency. (e) Federal Control of Information.--Under procedures prescribed under this section, information obtained by a State or local government from a Federal agency under this section shall remain under the control of the Federal agency, and a State or local law authorizing or requiring such a government to disclose information shall not apply to such information. (f) Definitions.--As used in this section: (1) The term ``homeland security information'' means any information possessed by a Federal, State, or local agency that-- (A) relates to the threat of terrorist activity; (B) relates to the ability to prevent, interdict, or disrupt terrorist activity; (C) would improve the identification or investigation of a suspected terrorist or terrorist organization; or (D) would improve the response to a terrorist act. (2) The term ``intelligence community'' has the meaning given such term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)). (3) The term ``State and local personnel'' means any of the following persons involved in prevention, preparation, or response for terrorist attack: (A) State Governors, mayors, and other locally elected officials. (B) State and local law enforcement personnel and firefighters. (C) Public health and medical professionals. (D) Regional, State, and local emergency management agency personnel, including State adjutant generals. (E) Other appropriate emergency response agency personnel. (F) Employees of private-sector entities that affect critical infrastructure, cyber, economic, or public health security, as designated by the Federal Government in procedures developed pursuant to this section. (4) The term ``State'' includes the District of Columbia and any commonwealth, territory, or possession of the United States. (g) Construction.--Nothing in this Act shall be construed as authorizing any department, bureau, agency, officer, or employee of the Federal Government to request, receive, or transmit to any other Government entity or personnel, or transmit to any State or local entity or personnel otherwise authorized by this Act to receive homeland security information, any information collected by the Federal Government solely for statistical purposes in violation of any other provision of law relating to the confidentiality of such information. SEC. 893. [6 U.S.C. 483] REPORT. (a) Report Required.--Not later than 12 months after the date of the enactment of this Act, the President shall submit to the congressional committees specified in subsection (b) a report on the implementation of section 892. The report shall include any recommendations for additional measures or appropriation requests, beyond the requirements of section 892, to increase the effectiveness of sharing of information between and among Federal, State, and local entities. (b) Specified Congressional Committees.--The congressional committees referred to in subsection (a) are the following committees: (1) The Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives. (2) The Select Committee on Intelligence and the Committee on the Judiciary of the Senate. SEC. 894. [6 U.S.C. 484] AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated such sums as may be necessary to carry out section 892. * * * * * * * Subtitle J--Secure Handling of Ammonium Nitrate SEC. 899A. [6 U.S.C. 488] DEFINITIONS. In this subtitle: (1) Ammonium nitrate.--The term ``ammonium nitrate'' means-- (A) solid ammonium nitrate that is chiefly the ammonium salt of nitric acid and contains not less than 33 percent nitrogen by weight; and (B) any mixture containing a percentage of ammonium nitrate that is equal to or greater than the percentage determined by the Secretary under section 899B(b). (2) Ammonium nitrate facility.--The term ``ammonium nitrate facility'' means any entity that produces, sells or otherwise transfers ownership of, or provides application services for ammonium nitrate. (3) Ammonium nitrate purchaser.--The term ``ammonium nitrate purchaser'' means any person who purchases ammonium nitrate from an ammonium nitrate facility. SEC. 899B. [6 U.S.C. 488A] REGULATION OF THE SALE AND TRANSFER OF AMMONIUM NITRATE. (a) In General.--The Secretary shall regulate the sale and transfer of ammonium nitrate by an ammonium nitrate facility in accordance with this subtitle to prevent the misappropriation or use of ammonium nitrate in an act of terrorism. (b) Ammonium Nitrate Mixtures.--Not later than 90 days after the date of the enactment of this subtitle, the Secretary, in consultation with the heads of appropriate Federal departments and agencies (including the Secretary of Agriculture), shall, after notice and an opportunity for comment, establish a threshold percentage for ammonium nitrate in a substance. (c) Registration of Owners of Ammonium Nitrate Facilities.-- (1) Registration.--The Secretary shall establish a process by which any person that-- (A) owns an ammonium nitrate facility is required to register with the Department; and (B) registers under subparagraph (A) is issued a registration number for purposes of this subtitle. (2) Registration information.--Any person applying to register under paragraph (1) shall submit to the Secretary-- (A) the name, address, and telephone number of each ammonium nitrate facility owned by that person; (B) the name of the person designated by that person as the point of contact for each such facility, for purposes of this subtitle; and (C) such other information as the Secretary may determine is appropriate. (d) Registration of Ammonium Nitrate Purchasers.-- (1) Registration.--The Secretary shall establish a process by which any person that-- (A) intends to be an ammonium nitrate purchaser is required to register with the Department; and (B) registers under subparagraph (A) is issued a registration number for purposes of this subtitle. (2) Registration information.--Any person applying to register under paragraph (1) as an ammonium nitrate purchaser shall submit to the Secretary-- (A) the name, address, and telephone number of the applicant; and (B) the intended use of ammonium nitrate to be purchased by the applicant. (e) Records.-- (1) Maintenance of records.--The owner of an ammonium nitrate facility shall-- (A) maintain a record of each sale or transfer of ammonium nitrate, during the two- year period beginning on the date of that sale or transfer; and (B) include in such record the information described in paragraph (2). (2) Specific information required.--For each sale or transfer of ammonium nitrate, the owner of an ammonium nitrate facility shall-- (A) record the name, address, telephone number, and registration number issued under subsection (c) or (d) of each person that purchases ammonium nitrate, in a manner prescribed by the Secretary; (B) if applicable, record the name, address, and telephone number of an agent acting on behalf of the person described in subparagraph (A), at the point of sale; (C) record the date and quantity of ammonium nitrate sold or transferred; and (D) verify the identity of the persons described in subparagraphs (A) and (B), as applicable, in accordance with a procedure established by the Secretary. (3) Protection of information.--In maintaining records in accordance with paragraph (1), the owner of an ammonium nitrate facility shall take reasonable actions to ensure the protection of the information included in such records. (f) Exemption for Explosive Purposes.--The Secretary may exempt from this subtitle a person producing, selling, or purchasing ammonium nitrate exclusively for use in the production of an explosive under a license or permit issued under chapter 40 of title 18, United States Code. (g) Consultation.--In carrying out this section, the Secretary shall consult with the Secretary of Agriculture, States, and appropriate private sector entities, to ensure that the access of agricultural producers to ammonium nitrate is not unduly burdened. (h) Data Confidentiality.-- (1) In general.--Notwithstanding section 552 of title 5, United States Code, or the USA PATRIOT ACT (Public Law 107-56; 115 Stat. 272), and except as provided in paragraph (2), the Secretary may not disclose to any person any information obtained under this subtitle. (2) Exception.--The Secretary may disclose any information obtained by the Secretary under this subtitle to-- (A) an officer or employee of the United States, or a person that has entered into a contract with the United States, who has a need to know the information to perform the duties of the officer, employee, or person; or (B) to a State agency under section 899D, under appropriate arrangements to ensure the protection of the information. (i) Registration Procedures and Check of Terrorist Screening Database.-- (1) Registration procedures.-- (A) Generally.--The Secretary shall establish procedures to efficiently receive applications for registration numbers under this subtitle, conduct the checks required under paragraph (2), and promptly issue or deny a registration number. (B) Initial six-month registration period.--The Secretary shall take steps to maximize the number of registration applications that are submitted and processed during the six-month period described in section 899F(e). (2) Check of terrorist screening database.-- (A) Check required.--The Secretary shall conduct a check of appropriate identifying information of any person seeking to register with the Department under subsection (c) or (d) against identifying information that appears in the terrorist screening database of the Department. (B) Authority to deny registration number.--If the identifying information of a person seeking to register with the Department under subsection (c) or (d) appears in the terrorist screening database of the Department, the Secretary may deny issuance of a registration number under this subtitle. (3) Expedited review of applications.-- (A) In general.--Following the six-month period described in section 899F(e), the Secretary shall, to the extent practicable, issue or deny registration numbers under this subtitle not later than 72 hours after the time the Secretary receives a complete registration application, unless the Secretary determines, in the interest of national security, that additional time is necessary to review an application. (B) Notice of application status.--In all cases, the Secretary shall notify a person seeking to register with the Department under subsection (c) or (d) of the status of the application of that person not later than 72 hours after the time the Secretary receives a complete registration application. (4) Expedited appeals process.-- (A) Requirement.-- (i) Appeals process.--The Secretary shall establish an expedited appeals process for persons denied a registration number under this subtitle. (ii) Time period for resolution.-- The Secretary shall, to the extent practicable, resolve appeals not later than 72 hours after receiving a complete request for appeal unless the Secretary determines, in the interest of national security, that additional time is necessary to resolve an appeal. (B) Consultation.--The Secretary, in developing the appeals process under subparagraph (A), shall consult with appropriate stakeholders. (C) Guidance.--The Secretary shall provide guidance regarding the procedures and information required for an appeal under subparagraph (A) to any person denied a registration number under this subtitle. (5) Restrictions on use and maintenance of information.-- (A) In general.--Any information constituting grounds for denial of a registration number under this section shall be maintained confidentially by the Secretary and may be used only for making determinations under this section. (B) Sharing of information.-- Notwithstanding any other provision of this subtitle, the Secretary may share any such information with Federal, State, local, and tribal law enforcement agencies, as appropriate. (6) Registration information.-- (A) Authority to require information.--The Secretary may require a person applying for a registration number under this subtitle to submit such information as may be necessary to carry out the requirements of this section. (B) Requirement to update information.--The Secretary may require persons issued a registration under this subtitle to update registration information submitted to the Secretary under this subtitle, as appropriate. (7) Re-checks against terrorist screening database.-- (A) Re-checks.--The Secretary shall, as appropriate, recheck persons provided a registration number pursuant to this subtitle against the terrorist screening database of the Department, and may revoke such registration number if the Secretary determines such person may pose a threat to national security. (B) Notice of revocation.--The Secretary shall, as appropriate, provide prior notice to a person whose registration number is revoked under this section and such person shall have an opportunity to appeal, as provided in paragraph (4). SEC. 899C. [6 U.S.C. 488B] INSPECTION AND AUDITING OF RECORDS. The Secretary shall establish a process for the periodic inspection and auditing of the records maintained by owners of ammonium nitrate facilities for the purpose of monitoring compliance with this subtitle or for the purpose of deterring or preventing the misappropriation or use of ammonium nitrate in an act of terrorism. SEC. 899D. [6 U.S.C. 488C] ADMINISTRATIVE PROVISIONS. (a) Cooperative Agreements.--The Secretary-- (1) may enter into a cooperative agreement with the Secretary of Agriculture, or the head of any State department of agriculture or its designee involved in agricultural regulation, in consultation with the State agency responsible for homeland security, to carry out the provisions of this subtitle; and (2) wherever possible, shall seek to cooperate with State agencies or their designees that oversee ammonium nitrate facility operations when seeking cooperative agreements to implement the registration and enforcement provisions of this subtitle. (b) Delegation.-- (1) Authority.--The Secretary may delegate to a State the authority to assist the Secretary in the administration and enforcement of this subtitle. (2) Delegation required.--At the request of a Governor of a State, the Secretary shall delegate to that State the authority to carry out functions under sections 899B and 899C, if the Secretary determines that the State is capable of satisfactorily carrying out such functions. (3) Funding.--Subject to the availability of appropriations, if the Secretary delegates functions to a State under this subsection, the Secretary shall provide to that State sufficient funds to carry out the delegated functions. (c) Provision of Guidance and Notification Materials to Ammonium Nitrate Facilities.-- (1) Guidance.--The Secretary shall make available to each owner of an ammonium nitrate facility registered under section 899B(c)(1) guidance on-- (A) the identification of suspicious ammonium nitrate purchases or transfers or attempted purchases or transfers; (B) the appropriate course of action to be taken by the ammonium nitrate facility owner with respect to such a purchase or transfer or attempted purchase or transfer, including-- (i) exercising the right of the owner of the ammonium nitrate facility to decline sale of ammonium nitrate; and (ii) notifying appropriate law enforcement entities; and (C) additional subjects determined appropriate to prevent the misappropriation or use of ammonium nitrate in an act of terrorism. (2) Use of materials and programs.--In providing guidance under this subsection, the Secretary shall, to the extent practicable, leverage any relevant materials and programs. (3) Notification materials.-- (A) In general.--The Secretary shall make available materials suitable for posting at locations where ammonium nitrate is sold. (B) Design of materials.--Materials made available under subparagraph (A) shall be designed to notify prospective ammonium nitrate purchasers of-- (i) the record-keeping requirements under section 899B; and (ii) the penalties for violating such requirements. SEC. 899E. [6 U.S.C. 488D] THEFT REPORTING REQUIREMENT. Any person who is required to comply with section 899B(e) who has knowledge of the theft or unexplained loss of ammonium nitrate shall report such theft or loss to the appropriate Federal law enforcement authorities not later than 1 calendar day of the date on which the person becomes aware of such theft or loss. Upon receipt of such report, the relevant Federal authorities shall inform State, local, and tribal law enforcement entities, as appropriate. SEC. 899F. [6 U.S.C. 488E] PROHIBITIONS AND PENALTY. (a) Prohibitions.-- (1) Taking possession.--No person shall purchase ammonium nitrate from an ammonium nitrate facility unless such person is registered under subsection (c) or (d) of section 899B, or is an agent of a person registered under subsection (c) or (d) of that section. (2) Transferring possession.--An owner of an ammonium nitrate facility shall not transfer possession of ammonium nitrate from the ammonium nitrate facility to any ammonium nitrate purchaser who is not registered under subsection (c) or (d) of section 899B, or to any agent acting on behalf of an ammonium nitrate purchaser when such purchaser is not registered under subsection (c) or (d) of section 899B. (3) Other prohibitions.--No person shall-- (A) purchase ammonium nitrate without a registration number required under subsection (c) or (d) of section 899B; (B) own or operate an ammonium nitrate facility without a registration number required under section 899B(c); or (C) fail to comply with any requirement or violate any other prohibition under this subtitle. (b) Civil Penalty.--A person that violates this subtitle may be assessed a civil penalty by the Secretary of not more than $50,000 per violation. (c) Penalty Considerations.--In determining the amount of a civil penalty under this section, the Secretary shall consider-- (1) the nature and circumstances of the violation; (2) with respect to the person who commits the violation, any history of prior violations, the ability to pay the penalty, and any effect the penalty is likely to have on the ability of such person to do business; and (3) any other matter that the Secretary determines that justice requires. (d) Notice and Opportunity for a Hearing.--No civil penalty may be assessed under this subtitle unless the person liable for the penalty has been given notice and an opportunity for a hearing on the violation for which the penalty is to be assessed in the county, parish, or incorporated city of residence of that person. (e) Delay in Application of Prohibition.--Paragraphs (1) and (2) of subsection (a) shall apply on and after the date that is 6 months after the date that the Secretary issues a final rule implementing this subtitle. SEC. 899G. [6 U.S.C. 488F] PROTECTION FROM CIVIL LIABILITY. (a) In General.--Notwithstanding any other provision of law, an owner of an ammonium nitrate facility that in good faith refuses to sell or transfer ammonium nitrate to any person, or that in good faith discloses to the Department or to appropriate law enforcement authorities an actual or attempted purchase or transfer of ammonium nitrate, based upon a reasonable belief that the person seeking purchase or transfer of ammonium nitrate may use the ammonium nitrate to create an explosive device to be employed in an act of terrorism (as defined in section 3077 of title 18, United States Code), or to use ammonium nitrate for any other unlawful purpose, shall not be liable in any civil action relating to that refusal to sell ammonium nitrate or that disclosure. (b) Reasonable Belief.--A reasonable belief that a person may use ammonium nitrate to create an explosive device to be employed in an act of terrorism under subsection (a) may not solely be based on the race, sex, national origin, creed, religion, status as a veteran, or status as a member of the Armed Forces of the United States of that person. SEC. 899H. [6 U.S.C. 488G] PREEMPTION OF OTHER LAWS. (a) Other Federal Regulations.--Except as provided in section 899G, nothing in this subtitle affects any regulation issued by any agency other than an agency of the Department. (b) State Law.--Subject to section 899G, this subtitle preempts the laws of any State to the extent that such laws are inconsistent with this subtitle, except that this subtitle shall not preempt any State law that provides additional protection against the acquisition of ammonium nitrate by terrorists or the use of ammonium nitrate in explosives in acts of terrorism or for other illicit purposes, as determined by the Secretary. SEC. 899I. [6 U.S.C. 488H] DEADLINES FOR REGULATIONS. The Secretary-- (1) shall issue a proposed rule implementing this subtitle not later than 6 months after the date of the enactment of this subtitle; and (2) issue a final rule implementing this subtitle not later than 1 year after such date of enactment. SEC. 899J. [6 U.S.C. 488I] AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated to the Secretary-- (1) $2,000,000 for fiscal year 2008; and (2) $10,750,000 for each of fiscal years 2009 through 2012. TITLE IX--NATIONAL HOMELAND SECURITY COUNCIL SEC. 901. [6 U.S.C. 491] NATIONAL HOMELAND SECURITY COUNCIL. There is established within the Executive Office of the President a council to be known as the ``Homeland Security Council'' (in this title referred to as the ``Council''). SEC. 902. [6 U.S.C. 492] FUNCTION. The function of the Council shall be to advise the President on homeland security matters. SEC. 903. [6 U.S.C. 493] MEMBERSHIP. (a) Members-- \1\The members of the Council shall be the following: --------------------------------------------------------------------------- \1\ A period probably should appear prior to the dash in the heading for subsection (a) of section 903. --------------------------------------------------------------------------- (1) The President. (2) The Vice President. (3) The Secretary of Homeland Security. (4) The Attorney General. (5) The Secretary of Defense. (6) Such other individuals as may be designated by the President. (b) Attendance of Chairman of Joint Chiefs of Staff at Meetings.--The Chairman of the Joint Chiefs of Staff (or, in the absence of the Chairman, the Vice Chairman of the Joint Chiefs of Staff) may, in the role of the Chairman of the Joint Chiefs of Staff as principal military adviser to the Council and subject to the direction of the President, attend and participate in meetings of the Council. SEC. 904. [6 U.S.C. 494] OTHER FUNCTIONS AND ACTIVITIES. For the purpose of more effectively coordinating the policies and functions of the United States Government relating to homeland security, the Council shall-- (1) assess the objectives, commitments, and risks of the United States in the interest of homeland security and to make resulting recommendations to the President; (2) oversee and review homeland security policies of the Federal Government and to make resulting recommendations to the President; and (3) perform such other functions as the President may direct. SEC. 905. [6 U.S.C. 495] STAFF COMPOSITION. The Council shall have a staff, the head of which shall be a civilian Executive Secretary, who shall be appointed by the President. The President is authorized to fix the pay of the Executive Secretary at a rate not to exceed the rate of pay payable to the Executive Secretary of the National Security Council. SEC. 906. [6 U.S.C. 496] RELATION TO THE NATIONAL SECURITY COUNCIL. The President may convene joint meetings of the Homeland Security Council and the National Security Council with participation by members of either Council or as the President may otherwise direct. TITLE X--INFORMATION SECURITY SEC. 1001. INFORMATION SECURITY. (a) [6 U.S.C. 101 note] Short Title.--This title may be cited as the ``Federal Information Security Management Act of 2002''. * * * * * * * (c) [6 U.S.C. 511] Information Security Responsibilities of Certain Agencies.-- (1) National security responsibilities.--(A) Nothing in this Act (including any amendment made by this Act) shall supersede any authority of the Secretary of Defense, the Director of Central Intelligence, or other agency head, as authorized by law and as directed by the President, with regard to the operation, control, or management of national security systems, as defined by section 3532(3) of title 44, United States Code. * * * * * * * (2) Atomic energy act of 1954.--Nothing in this Act shall supersede any requirement made by or under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.). Restricted Data or Formerly Restricted Data shall be handled, protected, classified, downgraded, and declassified in conformity with the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.). * * * * * * * SEC. 1006. [6 U.S.C. 512] CONSTRUCTION. Nothing in this Act, or the amendments made by this Act, affects the authority of the National Institute of Standards and Technology or the Department of Commerce relating to the development and promulgation of standards or guidelines under paragraphs (1) and (2) of section 20(a) of the National Institute of Standards and Technology Act (15 U.S.C. 278g- 3(a)). TITLE XI--DEPARTMENT OF JUSTICE DIVISIONS Subtitle A--Executive Office for Immigration Review SEC. 1101. LEGAL STATUS OF EOIR. (a) [6 U.S.C. 521] Existence of EOIR.--There is in the Department of Justice the Executive Office for Immigration Review, which shall be subject to the direction and regulation of the Attorney General under section 103(g) of the Immigration and Nationality Act, as added by section 1102. * * * * * * * SEC. 1103. [6 U.S.C. 522] STATUTORY CONSTRUCTION. Nothing in this Act, any amendment made by this Act, or in section 103 of the Immigration and Nationality Act, as amended by section 1102, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General. Subtitle B--Transfer of the Bureau of Alcohol, Tobacco and Firearms to the Department of Justice SEC. 1111. [6 U.S.C. 531] BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES. (a) Establishment.-- (1) In general.--There is established within the Department of Justice under the general authority of the Attorney General the Bureau of Alcohol, Tobacco, Firearms, and Explosives (in this section referred to as the ``Bureau''). (2) Director.--There shall be at the head of the Bureau a Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives (in this subtitle referred to as the ``Director''). The Director shall be appointed by the President, by and with the advice and consent of the Senate and shall perform such functions as the Attorney General shall direct. The Director shall receive compensation at the rate prescribed by law under section 5314 of title V, United States Code, for positions at level III of the Executive Schedule. (3) Coordination.--The Attorney General, acting through the Director and such other officials of the Department of Justice as the Attorney General may designate, shall provide for the coordination of all firearms, explosives, tobacco enforcement, and arson enforcement functions vested in the Attorney General so as to assure maximum cooperation between and among any officer, employee, or agency of the Department of Justice involved in the performance of these and related functions. (4) Performance of transferred functions.--The Attorney General may make such provisions as the Attorney General determines appropriate to authorize the performance by any officer, employee, or agency of the Department of Justice of any function transferred to the Attorney General under this section. (b) Responsibilities.--Subject to the direction of the Attorney General, the Bureau shall be responsible for investigating-- (1) criminal and regulatory violations of the Federal firearms, explosives, arson, alcohol, and tobacco smuggling laws; (2) the functions transferred by subsection (c); and (3) any other function related to the investigation of violent crime or domestic terrorism that is delegated to the Bureau by the Attorney General. (c) Transfer of Authorities, Functions, Personnel, and Assets to the Department of Justice.-- (1) In general.--Subject to paragraph (2), but notwithstanding any other provision of law, there are transferred to the Department of Justice the authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, which shall be maintained as a distinct entity within the Department of Justice, including the related functions of the Secretary of the Treasury. (2) Administration and revenue collection functions.--There shall be retained within the Department of the Treasury the authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms relating to the administration and enforcement of chapters 51 and 52 of the Internal Revenue Code of 1986, sections 4181 and 4182 of the Internal Revenue Code of 1986, and title 27, United States Code. (3) Building prospectus.--Prospectus PDC-98W10, giving the General Services Administration the authority for site acquisition, design, and construction of a new headquarters building for the Bureau of Alcohol, Tobacco and Firearms, is transferred, and deemed to apply, to the Bureau of Alcohol, Tobacco, Firearms, and Explosives established in the Department of Justice under subsection (a). (d) Tax and Trade Bureau.-- (1) Establishment.--There is established within the Department of the Treasury the Tax and Trade Bureau. (2) Administrator.--The Tax and Trade Bureau shall be headed by an Administrator, who shall perform such duties as assigned by the Under Secretary for Enforcement of the Department of the Treasury. The Administrator shall occupy a career-reserved position within the Senior Executive Service. (3) Responsibilities.--The authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms that are not transferred to the Department of Justice under this section shall be retained and administered by the Tax and Trade Bureau. * * * * * * * SEC. 1114. [6 U.S.C. 532] EXPLOSIVES TRAINING AND RESEARCH FACILITY. (a) Establishment.--There is established within the Bureau an Explosives Training and Research Facility at Fort AP Hill, Fredericksburg, Virginia. (b) Purpose.--The facility established under subsection (a) shall be utilized to train Federal, State, and local law enforcement officers to-- (1) investigate bombings and explosions; (2) properly handle, utilize, and dispose of explosive materials and devices; (3) train canines on explosive detection; and (4) conduct research on explosives. (c) Authorization of Appropriations.-- (1) In general.--There are authorized to be appropriated such sums as may be necessary to establish and maintain the facility established under subsection (a). (2) Availability of funds.--Any amounts appropriated pursuant to paragraph (1) shall remain available until expended. SEC. 1115. [6 U.S.C. 533] PERSONNEL MANAGEMENT DEMONSTRATION PROJECT. Notwithstanding any other provision of law, the Personnel Management Demonstration Project established under section 102 of title I of division C of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999 (Public Law 105-277; 122 Stat. 2681-585) shall be transferred to the Attorney General of the United States for continued use by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice, and the Secretary of the Treasury for continued use by the Tax and Trade Bureau. Subtitle C--Explosives SEC. 1121. [18 U.S.C. 841 NOTE] SHORT TITLE. This subtitle may be referred to as the ``Safe Explosives Act''. SEC. 1122. PERMITS FOR PURCHASERS OF EXPLOSIVES. (a) * * * * * * * * * * (i) [18 U.S.C. 843 note] Effective Date.-- (1) In general.--The amendments made by this section shall take effect 180 days after the date of enactment of this Act. (2) Exception.--Notwithstanding any provision of this Act, a license or permit issued under section 843 of title 18, United States Code, before the date of enactment of this Act, shall remain valid until that license or permit is revoked under section 843(d) or expires, or until a timely application for renewal is acted upon. * * * * * * * SEC. 1128. AUTHORIZATION OF APPROPRIATIONS. There is authorized to be appropriated such sums as necessary to carry out this subtitle and the amendments made by this subtitle. TITLE XII--AIRLINE WAR RISK INSURANCE LEGISLATION * * * * * * * SEC. 1204. REPORT. Not later than 90 days after the date of enactment of this Act, the Secretary shall transmit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that-- (A) evaluates the availability and cost of commercial war risk insurance for air carriers and other aviation entities for passengers and third parties; (B) analyzes the economic effect upon air carriers and other aviation entities of available commercial war risk insurance; and (C) describes the manner in which the Department could provide an alternative means of providing aviation war risk reinsurance covering passengers, crew, and third parties through use of a risk-retention group or by other means. TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT Subtitle A--Chief Human Capital Officers SEC. 1301. [5 U.S.C. 101 NOTE] SHORT TITLE. This title may be cited as the ``Chief Human Capital Officers Act of 2002''. * * * * * * * SEC. 1303. [5 U.S.C. 1401 NOTE] CHIEF HUMAN CAPITAL OFFICERS COUNCIL. (a) Establishment.--There is established a Chief Human Capital Officers Council, consisting of-- (1) the Director of the Office of Personnel Management, who shall act as chairperson of the Council; (2) the Deputy Director for Management of the Office of Management and Budget, who shall act as vice chairperson of the Council; and (3) the Chief Human Capital Officers of Executive departments and any other members who are designated by the Director of the Office of Personnel Management. (b) Functions.--The Chief Human Capital Officers Council shall meet periodically to advise and coordinate the activities of the agencies of its members on such matters as modernization of human resources systems, improved quality of human resources information, and legislation affecting human resources operations and organizations. (c) Employee Labor Organizations at Meetings.--The Chief Human Capital Officers Council shall ensure that representatives of Federal employee labor organizations are present at a minimum of 1 meeting of the Council each year. Such representatives shall not be members of the Council. (d) Annual Report.--Each year the Chief Human Capital Officers Council shall submit a report to Congress on the activities of the Council. * * * * * * * SEC. 1305. [5 U.S.C. 1103 NOTE] EFFECTIVE DATE. This subtitle shall take effect 180 days after the date of enactment of this Act. Subtitle B--Reforms Relating to Federal Human Capital Management * * * * * * * SEC. 1313. PERMANENT EXTENSION, REVISION, AND EXPANSION OF AUTHORITIES FOR USE OF VOLUNTARY SEPARATION INCENTIVE PAY AND VOLUNTARY EARLY RETIREMENT. (a) Voluntary Separation Incentive Payments.-- (1) * * * * * * * * * * (2) [5 U.S.C. 3521 note] Administrative office of the united states courts.--The Director of the Administrative Office of the United States Courts may, by regulation, establish a program substantially similar to the program established under paragraph (1) for individuals serving in the judicial branch. (3) [5 U.S.C. 3521 note] Continuation of other authority.--Any agency exercising any voluntary separation incentive authority in effect on the effective date of this subsection may continue to offer voluntary separation incentives consistent with that authority until that authority expires. (4) [5 U.S.C. 3521 note] Effective date.--This subsection shall take effect 60 days after the date of enactment of this Act. * * * * * * * (b) Federal Employee Voluntary Early Retirement.-- (1) * * * * * * * * * * (3) [5 U.S.C. 8336 note] General accounting office authority.--The amendments made by this subsection shall not be construed to affect the authority under section 1 of Public Law 106-303 (5 U.S.C. 8336 note; 114 State. 1063). * * * * * * * (5) [5 U.S.C. 8336 note] Regulations.--The Office of Personnel Management may prescribe regulations to carry out this subsection. (c) [5 U.S.C. 3521 note] Sense of Congress.--It is the sense of Congress that the implementation of this section is intended to reshape the Federal workforce and not downsize the Federal workforce. * * * * * * * Subtitle C--Reforms Relating to the Senior Executive Service * * * * * * * SEC. 1321. REPEAL OF RECERTIFICATION REQUIREMENTS OF SENIOR EXECUTIVES. (a) * * * * * * * * * * (b) [5 U.S.C. 3592 note] Savings Provision.-- Notwithstanding the amendments made by subsection (a)(2)(A), an appeal under the final sentence of section 3592(a) of title 5, United States Code, that is pending on the day before the effective date of this section-- (1) shall not abate by reason of the enactment of the amendments made by subsection (a)(2)(A); and (2) shall continue as if such amendments had not been enacted. (c) [5 U.S.C. 3593 note] Application.--The amendment made by subsection (a)(2)(B) shall not apply with respect to an individual who, before the effective date of this section, leaves the Senior Executive Service for failure to be recertified as a senior executive under section 3393a of title 5, United States Code. * * * * * * * Subtitle D--Academic Training * * * * * * * SEC. 1332. MODIFICATIONS TO NATIONAL SECURITY EDUCATION PROGRAM. (a) [5 U.S.C. 3301 note] Findings and Policies.-- (1) Findings.--Congress finds that-- (A) the United States Government actively encourages and financially supports the training, education, and development of many United States citizens; (B) as a condition of some of those supports, many of those citizens have an obligation to seek either compensated or uncompensated employment in the Federal sector; and (C) it is in the United States national interest to maximize the return to the Nation of funds invested in the development of such citizens by seeking to employ them in the Federal sector. (2) Policy.--It shall be the policy of the United States Government to-- (A) establish procedures for ensuring that United States citizens who have incurred service obligations as the result of receiving financial support for education and training from the United States Government and have applied for Federal positions are considered in all recruitment and hiring initiatives of Federal departments, bureaus, agencies, and offices; and (B) advertise and open all Federal positions to United States citizens who have incurred service obligations with the United States Government as the result of receiving financial support for education and training from the United States Government. * * * * * * * TITLE XIV--ARMING PILOTS AGAINST TERRORISM SEC. 1401. [49 U.S.C. 40101 NOTE] SHORT TITLE. This title may be cited as the ``Arming Pilots Against Terrorism Act''. SEC. 1402. FEDERAL FLIGHT DECK OFFICER PROGRAM. (a) * * * * * * * * * * (c) [6 U.S.C. 513] Federal Air Marshal Program.-- (1) Sense of congress.--It is the sense of Congress that the Federal air marshal program is critical to aviation security. (2) Limitation on statutory construction.--Nothing in this Act, including any amendment made by this Act, shall be construed as preventing the Under Secretary of Transportation for Security from implementing and training Federal air marshals. SEC. 1403. CREW TRAINING. (a) * * * * * * * * * * (c) Benefits and Risks of Providing Flight Attendants With Nonlethal Weapons.-- (1) Study.--The Under Secretary of Transportation for Security shall conduct a study to evaluate the benefits and risks of providing flight attendants with nonlethal weapons to aide in combating air piracy and criminal violence on commercial airlines. (2) Report.--Not later than 6 months after the date of enactment of this Act, the Under Secretary shall transmit to Congress a report on the results of the study. SEC. 1404. COMMERCIAL AIRLINE SECURITY STUDY. (a) Study.--The Secretary of Transportation shall conduct a study of the following: (1) The number of armed Federal law enforcement officers (other than Federal air marshals), who travel on commercial airliners annually and the frequency of their travel. (2) The cost and resources necessary to provide such officers with supplemental training in aircraft anti-terrorism training that is comparable to the training that Federal air marshals are provided. (3) The cost of establishing a program at a Federal law enforcement training center for the purpose of providing new Federal law enforcement recruits with standardized training comparable to the training that Federal air marshals are provided. (4) The feasibility of implementing a certification program designed for the purpose of ensuring Federal law enforcement officers have completed the training described in paragraph (2) and track their travel over a 6-month period. (5) The feasibility of staggering the flights of such officers to ensure the maximum amount of flights have a certified trained Federal officer on board. (b) Report.--Not later than 6 months after the date of enactment of this Act, the Secretary shall transmit to Congress a report on the results of the study. The report may be submitted in classified and redacted form. * * * * * * * TITLE XV--TRANSITION Subtitle A--Reorganization Plan SEC. 1501. [6 U.S.C. 541] DEFINITIONS. For purposes of this title: (1) The term ``agency'' includes any entity, organizational unit, program, or function. (2) The term ``transition period'' means the 12- month period beginning on the effective date of this Act. SEC. 1502. [6 U.S.C. 542] REORGANIZATION PLAN. (a) Submission of Plan.--Not later than 60 days after the date of the enactment of this Act, the President shall transmit to the appropriate congressional committees a reorganization plan regarding the following: (1) The transfer of agencies, personnel, assets, and obligations to the Department pursuant to this Act. (2) Any consolidation, reorganization, or streamlining of agencies transferred to the Department pursuant to this Act. (b) Plan Elements.--The plan transmitted under subsection (a) shall contain, consistent with this Act, such elements as the President deems appropriate, including the following: (1) Identification of any functions of agencies transferred to the Department pursuant to this Act that will not be transferred to the Department under the plan. (2) Specification of the steps to be taken by the Secretary to organize the Department, including the delegation or assignment of functions transferred to the Department among officers of the Department in order to permit the Department to carry out the functions transferred under the plan. (3) Specification of the funds available to each agency that will be transferred to the Department as a result of transfers under the plan. (4) Specification of the proposed allocations within the Department of unexpended funds transferred in connection with transfers under the plan. (5) Specification of any proposed disposition of property, facilities, contracts, records, and other assets and obligations of agencies transferred under the plan. (6) Specification of the proposed allocations within the Department of the functions of the agencies and subdivisions that are not related directly to securing the homeland. (c) Modification of Plan.--The President may, on the basis of consultations with the appropriate congressional committees, modify or revise any part of the plan until that part of the plan becomes effective in accordance with subsection (d). (d) Effective Date.-- (1) In general.--The reorganization plan described in this section, including any modifications or revisions of the plan under subsection (d), shall become effective for an agency on the earlier of-- (A) the date specified in the plan (or the plan as modified pursuant to subsection (d)), except that such date may not be earlier than 90 days after the date the President has transmitted the reorganization plan to the appropriate congressional committees pursuant to subsection (a); or (B) the end of the transition period. (2) Statutory construction.--Nothing in this subsection may be construed to require the transfer of functions, personnel, records, balances of appropriations, or other assets of an agency on a single date. (3) Supersedes existing law.--Paragraph (1) shall apply notwithstanding section 905(b) of title 5, United States Code. SEC. 1503. [6 U.S.C. 543] REVIEW OF CONGRESSIONAL COMMITTEE STRUCTURES. It is the sense of Congress that each House of Congress should review its committee structure in light of the reorganization of responsibilities within the executive branch by the establishment of the Department. Subtitle B--Transitional Provisions SEC. 1511. [6 U.S.C. 551] TRANSITIONAL AUTHORITIES. (a) Provision of Assistance by Officials.--Until the transfer of an agency to the Department, any official having authority over or functions relating to the agency immediately before the effective date of this Act shall provide to the Secretary such assistance, including the use of personnel and assets, as the Secretary may request in preparing for the transfer and integration of the agency into the Department. (b) Services and Personnel.--During the transition period, upon the request of the Secretary, the head of any executive agency may, on a reimbursable basis, provide services or detail personnel to assist with the transition. (c) Acting Officials.--(1) During the transition period, pending the advice and consent of the Senate to the appointment of an officer required by this Act to be appointed by and with such advice and consent, the President may designate any officer whose appointment was required to be made by and with such advice and consent and who was such an officer immediately before the effective date of this Act (and who continues in office) or immediately before such designation, to act in such office until the same is filled as provided in this Act. While so acting, such officers shall receive compensation at the higher of-- (A) the rates provided by this Act for the respective offices in which they act; or (B) the rates provided for the offices held at the time of designation. (2) Nothing in this Act shall be understood to require the advice and consent of the Senate to the appointment by the President to a position in the Department of any officer whose agency is transferred to the Department pursuant to this Act and whose duties following such transfer are germane to those performed before such transfer. (d) Transfer of Personnel, Assets, Obligations, and Functions.--Upon the transfer of an agency to the Department-- (1) the personnel, assets, and obligations held by or available in connection with the agency shall be transferred to the Secretary for appropriate allocation, subject to the approval of the Director of the Office of Management and Budget and in accordance with the provisions of section 1531(a)(2) of title 31, United States Code; and (2) the Secretary shall have all functions relating to the agency that any other official could by law exercise in relation to the agency immediately before such transfer, and shall have in addition all functions vested in the Secretary by this Act or other law. (e) Prohibition on Use of Transportation Trust Funds.-- (1) In general.--Notwithstanding any other provision of this Act, no funds derived from the Highway Trust Fund, Airport and Airway Trust Fund, Inland Waterway Trust Fund, or Harbor Maintenance Trust Fund, may be transferred to, made available to, or obligated by the Secretary or any other official in the Department. (2) Limitation.--This subsection shall not apply to security-related funds provided to the Federal Aviation Administration for fiscal years preceding fiscal year 2003 for (A) operations, (B) facilities and equipment, or (C) research, engineering, and development, and to any funds provided to the Coast Guard from the Sport Fish Restoration and Boating Trust Fund for boating safety programs. SEC. 1512. [6 U.S.C. 552] SAVINGS PROVISIONS. (a) Completed Administrative Actions.--(1) Completed administrative actions of an agency shall not be affected by the enactment of this Act or the transfer of such agency to the Department, but shall continue in effect according to their terms until amended, modified, superseded, terminated, set aside, or revoked in accordance with law by an officer of the United States or a court of competent jurisdiction, or by operation of law. (2) For purposes of paragraph (1), the term ``completed administrative action'' includes orders, determinations, rules, regulations, personnel actions, permits, agreements, grants, contracts, certificates, licenses, registrations, and privileges. (b) Pending Proceedings.--Subject to the authority of the Secretary under this Act-- (1) pending proceedings in an agency, including notices of proposed rulemaking, and applications for licenses, permits, certificates, grants, and financial assistance, shall continue notwithstanding the enactment of this Act or the transfer of the agency to the Department, unless discontinued or modified under the same terms and conditions and to the same extent that such discontinuance could have occurred if such enactment or transfer had not occurred; and (2) orders issued in such proceedings, and appeals therefrom, and payments made pursuant to such orders, shall issue in the same manner and on the same terms as if this Act had not been enacted or the agency had not been transferred, and any such orders shall continue in effect until amended, modified, superseded, terminated, set aside, or revoked by an officer of the United States or a court of competent jurisdiction, or by operation of law. (c) Pending Civil Actions.--Subject to the authority of the Secretary under this Act, pending civil actions shall continue notwithstanding the enactment of this Act or the transfer of an agency to the Department, and in such civil actions, proceedings shall be had, appeals taken, and judgments rendered and enforced in the same manner and with the same effect as if such enactment or transfer had not occurred. (d) References.--References relating to an agency that is transferred to the Department in statutes, Executive orders, rules, regulations, directives, or delegations of authority that precede such transfer or the effective date of this Act shall be deemed to refer, as appropriate, to the Department, to its officers, employees, or agents, or to its corresponding organizational units or functions. Statutory reporting requirements that applied in relation to such an agency immediately before the effective date of this Act shall continue to apply following such transfer if they refer to the agency by name. (e) Employment Provisions.--(1) Notwithstanding the generality of the foregoing (including subsections (a) and (d)), in and for the Department the Secretary may, in regulations prescribed jointly with the Director of the Office of Personnel Management, adopt the rules, procedures, terms, and conditions, established by statute, rule, or regulation before the effective date of this Act, relating to employment in any agency transferred to the Department pursuant to this Act; and (2) except as otherwise provided in this Act, or under authority granted by this Act, the transfer pursuant to this Act of personnel shall not alter the terms and conditions of employment, including compensation, of any employee so transferred. (f) Statutory Reporting Requirements.--Any statutory reporting requirement that applied to an agency, transferred to the Department under this Act, immediately before the effective date of this Act shall continue to apply following that transfer if the statutory requirement refers to the agency by name. SEC. 1513. [6 U.S.C. 553] TERMINATIONS. Except as otherwise provided in this Act, whenever all the functions vested by law in any agency have been transferred pursuant to this Act, each position and office the incumbent of which was authorized to receive compensation at the rates prescribed for an office or position at level II, III, IV, or V, of the Executive Schedule, shall terminate. SEC. 1514. [6 U.S.C. 554] NATIONAL IDENTIFICATION SYSTEM NOT AUTHORIZED. Nothing in this Act shall be construed to authorize the development of a national identification system or card. SEC. 1515. [6 U.S.C. 555] CONTINUITY OF INSPECTOR GENERAL OVERSIGHT. Notwithstanding the transfer of an agency to the Department pursuant to this Act, the Inspector General that exercised oversight of such agency prior to such transfer shall continue to exercise oversight of such agency during the period of time, if any, between the transfer of such agency to the Department pursuant to this Act and the appointment of the Inspector General of the Department of Homeland Security in accordance with section 103(b). SEC. 1516. [6 U.S.C. 556] INCIDENTAL TRANSFERS. The Director of the Office of Management and Budget, in consultation with the Secretary, is authorized and directed to make such additional incidental dispositions of personnel, assets, and liabilities held, used, arising from, available, or to be made available, in connection with the functions transferred by this Act, as the Director may determine necessary to accomplish the purposes of this Act. SEC. 1517. [6 U.S.C. 557] REFERENCE. With respect to any function transferred by or under this Act (including under a reorganization plan that becomes effective under section 1502) and exercised on or after the effective date of this Act, reference in any other Federal law to any department, commission, or agency or any officer or office the functions of which are so transferred shall be deemed to refer to the Secretary, other official, or component of the Department to which such function is so transferred. * * * * * * * TITLE XVII--CONFORMING AND TECHNICAL AMENDMENTS * * * * * * * SEC. 1702. EXECUTIVE SCHEDULE. (a) * * * * * * * * * * (b) [5 U.S.C. 5315 note] Special Effective Date.-- Notwithstanding section 4, the amendment made by subsection (a)(5) shall take effect on the date on which the transfer of functions specified under section 441 takes effect. SEC. 1703. UNITED STATES SECRET SERVICE. (a) * * * (b) [3 U.S.C. 202 note] Effective Date.--The amendments made by this section shall take effect on the date of transfer of the United States Secret Service to the Department. SEC. 1704. COAST GUARD. (a) * * * * * * * * * * (g) [10 U.S.C. 101 note] Effective Date.--The amendments made by this section (other than subsection (f)) shall take effect on the date of transfer of the Coast Guard to the Department. SEC. 1705. STRATEGIC NATIONAL STOCKPILE AND SMALLPOX VACCINE DEVELOPMENT. (a) * * * * * * * * * * (b) [42 U.S.C. 247d-6b note] Effective Date.--The amendments made by this section shall take effect on the date of transfer of the Strategic National Stockpile of the Department of Health and Human Services to the Department. SEC. 1706. TRANSFER OF CERTAIN SECURITY AND LAW ENFORCEMENT FUNCTIONS AND AUTHORITIES. (a) * * * * * * * * * * (2) [40 U.S.C. 1315 note] Delegation of authority.--The Secretary may delegate authority for the protection of specific buildings to another Federal agency where, in the Secretary's discretion, the Secretary determines it necessary for the protection of that building. * * * * * * * SEC. 1708. [50 U.S.C. 1522 NOTE] NATIONAL BIO-WEAPONS DEFENSE ANALYSIS CENTER. There is established in the Department of Defense a National Bio-Weapons Defense Analysis Center, whose mission is to develop countermeasures to potential attacks by terrorists using weapons of mass destruction. * * * * * * * Sec. 1714. [6 U.S.C. 103] Notwithstanding any other provision of this Act, any report, notification, or consultation addressing directly or indirectly the use of appropriated funds and stipulated by this Act to be submitted to, or held with, the Congress or any Congressional committee shall also be submitted to, or held with, the Committees on Appropriations of the Senate and the House of Representatives under the same conditions and with the same restrictions as stipulated by this Act. TITLE XVIII--EMERGENCY COMMUNICATIONS SEC. 1801. [6 U.S.C. 571] OFFICE OF EMERGENCY COMMUNICATIONS. (a) In General.--There is established in the Department an Office of Emergency Communications. (b) Director.--The head of the office shall be the Director for Emergency Communications. The Director shall report to the Assistant Secretary for Cybersecurity and Communications. (c) Responsibilities.--The Director for Emergency Communications shall-- (1) assist the Secretary in developing and implementing the program described in section 7303(a)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(a)(1)), except as provided in section 314; (2) administer the Department's responsibilities and authorities relating to the SAFECOM Program, excluding elements related to research, development, testing, and evaluation and standards; (3) administer the Department's responsibilities and authorities relating to the Integrated Wireless Network program; (4) conduct extensive, nationwide outreach to support and promote the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters; (5) conduct extensive, nationwide outreach and foster the development of interoperable emergency communications capabilities by State, regional, local, and tribal governments and public safety agencies, and by regional consortia thereof; (6) provide technical assistance to State, regional, local, and tribal government officials with respect to use of interoperable emergency communications capabilities; (7) coordinate with the Regional Administrators regarding the activities of Regional Emergency Communications Coordination Working Groups under section 1805; (8) promote the development of standard operating procedures and best practices with respect to use of interoperable emergency communications capabilities for incident response, and facilitate the sharing of information on such best practices for achieving, maintaining, and enhancing interoperable emergency communications capabilities for such response; (9) coordinate, in cooperation with the National Communications System, the establishment of a national response capability with initial and ongoing planning, implementation, and training for the deployment of communications equipment for relevant State, local, and tribal governments and emergency response providers in the event of a catastrophic loss of local and regional emergency communications services; (10) assist the President, the National Security Council, the Homeland Security Council, and the Director of the Office of Management and Budget in ensuring the continued operation of the telecommunications functions and responsibilities of the Federal Government, excluding spectrum management; (11) establish, in coordination with the Director of the Office for Interoperability and Compatibility, requirements for interoperable emergency communications capabilities, which shall be nonproprietary where standards for such capabilities exist, for all public safety radio and data communications systems and equipment purchased using homeland security assistance administered by the Department, excluding any alert and warning device, technology, or system; (12) review, in consultation with the Assistant Secretary for Grants and Training, all interoperable emergency communications plans of Federal, State, local, and tribal governments, including Statewide and tactical interoperability plans, developed pursuant to homeland security assistance administered by the Department, but excluding spectrum allocation and management related to such plans; (13) develop and update periodically, as appropriate, a National Emergency Communications Plan under section 1802; (14) perform such other duties of the Department necessary to support and promote the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man- made disasters; and (15) perform other duties of the Department necessary to achieve the goal of and maintain and enhance interoperable emergency communications capabilities. (d) Performance of Previously Transferred Functions.--The Secretary shall transfer to, and administer through, the Director for Emergency Communications the following programs and responsibilities: (1) The SAFECOM Program, excluding elements related to research, development, testing, and evaluation and standards. (2) The responsibilities of the Chief Information Officer related to the implementation of the Integrated Wireless Network. (3) The Interoperable Communications Technical Assistance Program. (e) Coordination.--The Director for Emergency Communications shall coordinate-- (1) as appropriate, with the Director of the Office for Interoperability and Compatibility with respect to the responsibilities described in section 314; and (2) with the Administrator of the Federal Emergency Management Agency with respect to the responsibilities described in this title. (f) Sufficiency of Resources Plan.-- (1) Report.--Not later than 120 days after the date of enactment of this section, the Secretary shall submit to Congress a report on the resources and staff necessary to carry out fully the responsibilities under this title. (2) Comptroller general review.--The Comptroller General shall review the validity of the report submitted by the Secretary under paragraph (1). Not later than 60 days after the date on which such report is submitted, the Comptroller General shall submit to Congress a report containing the findings of such review. SEC. 1802. [6 U.S.C. 572] NATIONAL EMERGENCY COMMUNICATIONS PLAN. (a) In General.--The Secretary, acting through the Director for Emergency Communications, and in cooperation with the Department of National Communications System (as appropriate), shall, in cooperation with State, local, and tribal governments, Federal departments and agencies, emergency response providers, and the private sector, develop not later than 180 days after the completion of the baseline assessment under section 1803, and periodically update, a National Emergency Communications Plan to provide recommendations regarding how the United States should-- (1) support and promote the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters; and (2) ensure, accelerate, and attain interoperable emergency communications nationwide. (b) Coordination.--The Emergency Communications Preparedness Center under section 1806 shall coordinate the development of the Federal aspects of the National Emergency Communications Plan. (c) Contents.--The National Emergency Communications Plan shall-- (1) include recommendations developed in consultation with the Federal Communications Commission and the National Institute of Standards and Technology for a process for expediting national voluntary consensus standards for emergency communications equipment for the purchase and use by public safety agencies of interoperable emergency communications equipment and technologies; (2) identify the appropriate capabilities necessary for emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters; (3) identify the appropriate interoperable emergency communications capabilities necessary for Federal, State, local, and tribal governments in the event of natural disasters, acts of terrorism, and other man-made disasters; (4) recommend both short-term and long-term solutions for ensuring that emergency response providers and relevant government officials can continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters; (5) recommend both short-term and long-term solutions for deploying interoperable emergency communications systems for Federal, State, local, and tribal governments throughout the Nation, including through the provision of existing and emerging technologies; (6) identify how Federal departments and agencies that respond to natural disasters, acts of terrorism, and other man-made disasters can work effectively with State, local, and tribal governments, in all States, and with other entities; (7) identify obstacles to deploying interoperable emergency communications capabilities nationwide and recommend short-term and long-term measures to overcome those obstacles, including recommendations for multijurisdictional coordination among Federal, State, local, and tribal governments; (8) recommend goals and timeframes for the deployment of emergency, command-level communications systems based on new and existing equipment across the United States and develop a timetable for the deployment of interoperable emergency communications systems nationwide; (9) recommend appropriate measures that emergency response providers should employ to ensure the continued operation of relevant governmental communications infrastructure in the event of natural disasters, acts of terrorism, or other man-made disasters; and (10) set a date, including interim benchmarks, as appropriate, by which State, local, and tribal governments, Federal departments and agencies, and emergency response providers expect to achieve a baseline level of national interoperable communications, as that term is defined under section 7303(g)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(g)(1)). SEC. 1803. [6 U.S.C. 573] ASSESSMENTS AND REPORTS. (a) Baseline Assessment.--Not later than 1 year after the date of enactment of this section and not less than every 5 years thereafter, the Secretary, acting through the Director for Emergency Communications, shall conduct an assessment of Federal, State, local, and tribal governments that-- (1) defines the range of capabilities needed by emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man- made disasters; (2) defines the range of interoperable emergency communications capabilities needed for specific events; (3) assesses the current available capabilities to meet such communications needs; (4) identifies the gap between such current capabilities and defined requirements; and (5) includes a national interoperable emergency communications inventory to be completed by the Secretary of Homeland Security, the Secretary of Commerce, and the Chairman of the Federal Communications Commission that-- (A) identifies for each Federal department and agency-- (i) the channels and frequencies used; (ii) the nomenclature used to refer to each channel or frequency used; and (iii) the types of communications systems and equipment used; and (B) identifies the interoperable emergency communications systems in use by public safety agencies in the United States. (b) Classified Annex.--The baseline assessment under this section may include a classified annex including information provided under subsection (a)(5)(A). (c) Savings Clause.--In conducting the baseline assessment under this section, the Secretary may incorporate findings from assessments conducted before, or ongoing on, the date of enactment of this title. (d) Progress Reports.--Not later than one year after the date of enactment of this section and biennially thereafter, the Secretary, acting through the Director for Emergency Communications, shall submit to Congress a report on the progress of the Department in achieving the goals of, and carrying out its responsibilities under, this title, including-- (1) a description of the findings of the most recent baseline assessment conducted under subsection (a); (2) a determination of the degree to which interoperable emergency communications capabilities have been attained to date and the gaps that remain for interoperability to be achieved; (3) an evaluation of the ability to continue to communicate and to provide and maintain interoperable emergency communications by emergency managers, emergency response providers, and relevant government officials in the event of-- (A) natural disasters, acts of terrorism, or other man-made disasters, including Incidents of National Significance declared by the Secretary under the National Response Plan; and (B) a catastrophic loss of local and regional communications services; (4) a list of best practices relating to the ability to continue to communicate and to provide and maintain interoperable emergency communications in the event of natural disasters, acts of terrorism, or other man-made disasters; and (A) an evaluation of the feasibility and desirability of the Department developing, on its own or in conjunction with the Department of Defense, a mobile communications capability, modeled on the Army Signal Corps, that could be deployed to support emergency communications at the site of natural disasters, acts of terrorism, or other man-made disasters. SEC. 1804. [6 U.S.C. 574] COORDINATION OF DEPARTMENT EMERGENCY COMMUNICATIONS GRANT PROGRAMS. (a) Coordination of Grants and Standards Programs.--The Secretary, acting through the Director for Emergency Communications, shall ensure that grant guidelines for the use of homeland security assistance administered by the Department relating to interoperable emergency communications are coordinated and consistent with the goals and recommendations in the National Emergency Communications Plan under section 1802. (b) Denial of Eligibility for Grants.-- (1) In general.--The Secretary, acting through the Assistant Secretary for Grants and Planning, and in consultation with the Director for Emergency Communications, may prohibit any State, local, or tribal government from using homeland security assistance administered by the Department to achieve, maintain, or enhance emergency communications capabilities, if-- (A) such government has not complied with the requirement to submit a Statewide Interoperable Communications Plan as required by section 7303(f) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(f)); (B) such government has proposed to upgrade or purchase new equipment or systems that do not meet or exceed any applicable national voluntary consensus standards and has not provided a reasonable explanation of why such equipment or systems will serve the needs of the applicant better than equipment or systems that meet or exceed such standards; and (C) as of the date that is 3 years after the date of the completion of the initial National Emergency Communications Plan under section 1802, national voluntary consensus standards for interoperable emergency communications capabilities have not been developed and promulgated. (2) Standards.--The Secretary, in coordination with the Federal Communications Commission, the National Institute of Standards and Technology, and other Federal departments and agencies with responsibility for standards, shall support the development, promulgation, and updating as necessary of national voluntary consensus standards for interoperable emergency communications. SEC. 1805. [6 U.S.C. 575] REGIONAL EMERGENCY COMMUNICATIONS COORDINATION. (a) In General.--There is established in each Regional Office a Regional Emergency Communications Coordination Working Group (in this section referred to as an ``RECC Working Group''). Each RECC Working Group shall report to the relevant Regional Administrator and coordinate its activities with the relevant Regional Advisory Council. (b) Membership.--Each RECC Working Group shall consist of the following: (1) Non-federal.--Organizations representing the interests of the following: (A) State officials. (B) Local government officials, including sheriffs. (C) State police departments. (D) Local police departments. (E) Local fire departments. (F) Public safety answering points (9-1-1 services). (G) State emergency managers, homeland security directors, or representatives of State Administrative Agencies. (H) Local emergency managers or homeland security directors. (I) Other emergency response providers as appropriate. (2) Federal.--Representatives from the Department, the Federal Communications Commission, and other Federal departments and agencies with responsibility for coordinating interoperable emergency communications with or providing emergency support services to State, local, and tribal governments. (c) Coordination.--Each RECC Working Group shall coordinate its activities with the following: (1) Communications equipment manufacturers and vendors (including broadband data service providers). (2) Local exchange carriers. (3) Local broadcast media. (4) Wireless carriers. (5) Satellite communications services. (6) Cable operators. (7) Hospitals. (8) Public utility services. (9) Emergency evacuation transit services. (10) Ambulance services. (11) HAM and amateur radio operators. (12) Representatives from other private sector entities and nongovernmental organizations as the Regional Administrator determines appropriate. (d) Duties.--The duties of each RECC Working Group shall include-- (1) assessing the survivability, sustainability, and interoperability of local emergency communications systems to meet the goals of the National Emergency Communications Plan; (2) reporting annually to the relevant Regional Administrator, the Director for Emergency Communications, the Chairman of the Federal Communications Commission, and the Assistant Secretary for Communications and Information of the Department of Commerce on the status of its region in building robust and sustainable interoperable voice and data emergency communications networks and, not later than 60 days after the completion of the initial National Emergency Communications Plan under section 1802, on the progress of the region in meeting the goals of such plan; (3) ensuring a process for the coordination of effective multijurisdictional, multi-agency emergency communications networks for use during natural disasters, acts of terrorism, and other man-made disasters through the expanded use of emergency management and public safety communications mutual aid agreements; and (4) coordinating the establishment of Federal, State, local, and tribal support services and networks designed to address the immediate and critical human needs in responding to natural disasters, acts of terrorism, and other man-made disasters. SEC. 1806. [6 U.S.C. 576] EMERGENCY COMMUNICATIONS PREPAREDNESS CENTER. (a) Establishment.--There is established the Emergency Communications Preparedness Center (in this section referred to as the ``Center''). (b) Operation.--The Secretary, the Chairman of the Federal Communications Commission, the Secretary of Defense, the Secretary of Commerce, the Attorney General of the United States, and the heads of other Federal departments and agencies or their designees shall jointly operate the Center in accordance with the Memorandum of Understanding entitled, ``Emergency Communications Preparedness Center (ECPC) Charter''. (c) Functions.--The Center shall-- (1) serve as the focal point for interagency efforts and as a clearinghouse with respect to all relevant intergovernmental information to support and promote (including specifically by working to avoid duplication, hindrances, and counteractive efforts among the participating Federal departments and agencies)-- (A) the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man- made disasters; and (B) interoperable emergency communications; (2) prepare and submit to Congress, on an annual basis, a strategic assessment regarding the coordination efforts of Federal departments and agencies to advance-- (A) the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man- made disasters; and (B) interoperable emergency communications; (3) consider, in preparing the strategic assessment under paragraph (2), the goals stated in the National Emergency Communications Plan under section 1802; and (4) perform such other functions as are provided in the Emergency Communications Preparedness Center (ECPC) Charter described in subsection (b)(1). SEC. 1807. [6 U.S.C. 577] URBAN AND OTHER HIGH RISK AREA COMMUNICATIONS CAPABILITIES. (a) In General.--The Secretary, in consultation with the Chairman of the Federal Communications Commission and the Secretary of Defense, and with appropriate State, local, and tribal government officials, shall provide technical guidance, training, and other assistance, as appropriate, to support the rapid establishment of consistent, secure, and effective interoperable emergency communications capabilities in the event of an emergency in urban and other areas determined by the Secretary to be at consistently high levels of risk from natural disasters, acts of terrorism, and other man-made disasters. (b) Minimum Capabilities.--The interoperable emergency communications capabilities established under subsection (a) shall ensure the ability of all levels of government, emergency response providers, the private sector, and other organizations with emergency response capabilities-- (1) to communicate with each other in the event of an emergency; (2) to have appropriate and timely access to the Information Sharing Environment described in section 1016 of the National Security Intelligence Reform Act of 2004 (6 U.S.C. 321); and (3) to be consistent with any applicable State or Urban Area homeland strategy or plan. SEC. 1808. [6 U.S.C. 578] DEFINITION. In this title, the term ``interoperable'' has the meaning given the term ``interoperable communications'' under section 7303(g)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(g)(1)). SEC. 1809. [6 U.S.C. 579] INTEROPERABLE EMERGENCY COMMUNICATIONS GRANT PROGRAM. (a) Establishment.--The Secretary shall establish the Interoperable Emergency Communications Grant Program to make grants to States to carry out initiatives to improve local, tribal, statewide, regional, national and, where appropriate, international interoperable emergency communications, including communications in collective response to natural disasters, acts of terrorism, and other man-made disasters. (b) Policy.--The Director for Emergency Communications shall ensure that a grant awarded to a State under this section is consistent with the policies established pursuant to the responsibilities and authorities of the Office of Emergency Communications under this title, including ensuring that activities funded by the grant-- (1) comply with the statewide plan for that State required by section 7303(f) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(f)); and (2) comply with the National Emergency Communications Plan under section 1802, when completed. (c) Administration.-- (1) In general.--The Administrator of the Federal Emergency Management Agency shall administer the Interoperable Emergency Communications Grant Program pursuant to the responsibilities and authorities of the Administrator under title V of the Act. (2) Guidance.--In administering the grant program, the Administrator shall ensure that the use of grants is consistent with guidance established by the Director of Emergency Communications pursuant to section 7303(a)(1)(H) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(a)(1)(H)). (d) Use of Funds.--A State that receives a grant under this section shall use the grant to implement that State's Statewide Interoperability Plan required under section 7303(f) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(f)) and approved under subsection (e), and to assist with activities determined by the Secretary to be integral to interoperable emergency communications. (e) Approval of Plans.-- (1) Approval as condition of grant.--Before a State may receive a grant under this section, the Director of Emergency Communications shall approve the State's Statewide Interoperable Communications Plan required under section 7303(f) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(f)). (2) Plan requirements.--In approving a plan under this subsection, the Director of Emergency Communications shall ensure that the plan-- (A) is designed to improve interoperability at the city, county, regional, State and interstate level; (B) considers any applicable local or regional plan; and (C) complies, to the maximum extent practicable, with the National Emergency Communications Plan under section 1802. (3) Approval of revisions.--The Director of Emergency Communications may approve revisions to a State's plan if the Director determines that doing so is likely to further interoperability. (f) Limitations on Uses of Funds.-- (1) In general.--The recipient of a grant under this section may not use the grant-- (A) to supplant State or local funds; (B) for any State or local government cost- sharing contribution; or (C) for recreational or social purposes. (2) Penalties.--In addition to other remedies currently available, the Secretary may take such actions as necessary to ensure that recipients of grant funds are using the funds for the purpose for which they were intended. (g) Limitations on Award of Grants.-- (1) National emergency communications plan required.--The Secretary may not award a grant under this section before the date on which the Secretary completes and submits to Congress the National Emergency Communications Plan required under section 1802. (2) Voluntary consensus standards.--The Secretary may not award a grant to a State under this section for the purchase of equipment that does not meet applicable voluntary consensus standards, unless the State demonstrates that there are compelling reasons for such purchase. (h) Award of Grants.--In approving applications and awarding grants under this section, the Secretary shall consider-- (1) the risk posed to each State by natural disasters, acts of terrorism, or other manmade disasters, including-- (A) the likely need of a jurisdiction within the State to respond to such risk in nearby jurisdictions; (B) the degree of threat, vulnerability, and consequences related to critical infrastructure (from all critical infrastructure sectors) or key resources identified by the Administrator or the State homeland security and emergency management plans, including threats to, vulnerabilities of, and consequences from damage to critical infrastructure and key resources in nearby jurisdictions; (C) the size of the population and density of the population of the State, including appropriate consideration of military, tourist, and commuter populations; (D) whether the State is on or near an international border; (E) whether the State encompasses an economically significant border crossing; and (F) whether the State has a coastline bordering an ocean, a major waterway used for interstate commerce, or international waters; and (2) the anticipated effectiveness of the State's proposed use of grant funds to improve interoperability. (i) Opportunity to Amend Applications.--In considering applications for grants under this section, the Administrator shall provide applicants with a reasonable opportunity to correct defects in the application, if any, before making final awards. (j) Minimum Grant Amounts.-- (1) States.--In awarding grants under this section, the Secretary shall ensure that for each fiscal year, except as provided in paragraph (2), no State receives a grant in an amount that is less than the following percentage of the total amount appropriated for grants under this section for that fiscal year: (A) For fiscal year 2008, 0.50 percent. (B) For fiscal year 2009, 0.50 percent. (C) For fiscal year 2010, 0.45 percent. (D) For fiscal year 2011, 0.40 percent. (E) For fiscal year 2012 and each subsequent fiscal year, 0.35 percent. (2) Territories and possessions.--In awarding grants under this section, the Secretary shall ensure that for each fiscal year, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands each receive grants in amounts that are not less than 0.08 percent of the total amount appropriated for grants under this section for that fiscal year. (k) Certification.--Each State that receives a grant under this section shall certify that the grant is used for the purpose for which the funds were intended and in compliance with the State's approved Statewide Interoperable Communications Plan. (l) State Responsibilities.-- (1) Availability of funds to local and tribal governments.--Not later than 45 days after receiving grant funds, any State that receives a grant under this section shall obligate or otherwise make available to local and tribal governments-- (A) not less than 80 percent of the grant funds; (B) with the consent of local and tribal governments, eligible expenditures having a value of not less than 80 percent of the amount of the grant; or (C) grant funds combined with other eligible expenditures having a total value of not less than 80 percent of the amount of the grant. (2) Allocation of funds.--A State that receives a grant under this section shall allocate grant funds to tribal governments in the State to assist tribal communities in improving interoperable communications, in a manner consistent with the Statewide Interoperable Communications Plan. A State may not impose unreasonable or unduly burdensome requirements on a tribal government as a condition of providing grant funds or resources to the tribal government. (3) Penalties.--If a State violates the requirements of this subsection, in addition to other remedies available to the Secretary, the Secretary may terminate or reduce the amount of the grant awarded to that State or transfer grant funds previously awarded to the State directly to the appropriate local or tribal government. (m) Reports.-- (1) Annual reports by state grant recipients.--A State that receives a grant under this section shall annually submit to the Director of Emergency Communications a report on the progress of the State in implementing that State's Statewide Interoperable Communications Plans required under section 7303(f) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 194(f)) and achieving interoperability at the city, county, regional, State, and interstate levels. The Director shall make the reports publicly available, including by making them available on the Internet website of the Office of Emergency Communications, subject to any redactions that the Director determines are necessary to protect classified or other sensitive information. (2) Annual reports to congress.--At least once each year, the Director of Emergency Communications shall submit to Congress a report on the use of grants awarded under this section and any progress in implementing Statewide Interoperable Communications Plans and improving interoperability at the city, county, regional, State, and interstate level, as a result of the award of such grants. (n) Rule of Construction.--Nothing in this section shall be construed or interpreted to preclude a State from using a grant awarded under this section for interim or long-term Internet Protocol-based interoperable solutions. (o) Authorization of Appropriations.--There are authorized to be appropriated for grants under this section-- (1) for fiscal year 2008, such sums as may be necessary; (2) for each of fiscal years 2009 through 2012, $400,000,000; and (3) for each subsequent fiscal year, such sums as may be necessary. SEC. 1810. [6 U.S.C. 580] BORDER INTEROPERABILITY DEMONSTRATION PROJECT. (a) In General.-- (1) Establishment.--The Secretary, acting through the Director of the Office of Emergency Communications (referred to in this section as the ``Director''), and in coordination with the Federal Communications Commission and the Secretary of Commerce, shall establish an International Border Community Interoperable Communications Demonstration Project (referred to in this section as the ``demonstration project''). (2) Minimum number of communities.--The Director shall select no fewer than 6 communities to participate in a demonstration project. (3) Location of communities.--No fewer than 3 of the communities selected under paragraph (2) shall be located on the northern border of the United States and no fewer than 3 of the communities selected under paragraph (2) shall be located on the southern border of the United States. (b) Conditions.--The Director, in coordination with the Federal Communications Commission and the Secretary of Commerce, shall ensure that the project is carried out as soon as adequate spectrum is available as a result of the 800 megahertz rebanding process in border areas, and shall ensure that the border projects do not impair or impede the rebanding process, but under no circumstances shall funds be distributed under this section unless the Federal Communications Commission and the Secretary of Commerce agree that these conditions have been met. (c) Program Requirements.--Consistent with the responsibilities of the Office of Emergency Communications under section 1801, the Director shall foster local, tribal, State, and Federal interoperable emergency communications, as well as interoperable emergency communications with appropriate Canadian and Mexican authorities in the communities selected for the demonstration project. The Director shall-- (1) identify solutions to facilitate interoperable communications across national borders expeditiously; (2) help ensure that emergency response providers can communicate with each other in the event of natural disasters, acts of terrorism, and other man-made disasters; (3) provide technical assistance to enable emergency response providers to deal with threats and contingencies in a variety of environments; (4) identify appropriate joint-use equipment to ensure communications access; (5) identify solutions to facilitate communications between emergency response providers in communities of differing population densities; and (6) take other actions or provide equipment as the Director deems appropriate to foster interoperable emergency communications. (d) Distribution of Funds.-- (1) In general.--The Secretary shall distribute funds under this section to each community participating in the demonstration project through the State, or States, in which each community is located. (2) Other participants.--A State shall make the funds available promptly to the local and tribal governments and emergency response providers selected by the Secretary to participate in the demonstration project. (3) Report.--Not later than 90 days after a State receives funds under this subsection the State shall report to the Director on the status of the distribution of such funds to local and tribal governments. (e) Maximum Period of Grants.--The Director may not fund any participant under the demonstration project for more than 3 years. (f) Transfer of Information and Knowledge.--The Director shall establish mechanisms to ensure that the information and knowledge gained by participants in the demonstration project are transferred among the participants and to other interested parties, including other communities that submitted applications to the participant in the project. (g) Authorization of Appropriations.--There is authorized to be appropriated for grants under this section such sums as may be necessary. TITLE XIX--DOMESTIC NUCLEAR DETECTION OFFICE SEC. 1901. [6 U.S.C. 591] DOMESTIC NUCLEAR DETECTION OFFICE. (a) Establishment.--There shall be established in the Department a Domestic Nuclear Detection Office (referred to in this title as the ``Office''). The Secretary may request that the Secretary of Defense, the Secretary of Energy, the Secretary of State, the Attorney General, the Nuclear Regulatory Commission, and the directors of other Federal agencies, including elements of the Intelligence Community, provide for the reimbursable detail of personnel with relevant expertise to the Office. (b) Director.--The Office shall be headed by a Director for Domestic Nuclear Detection, who shall be appointed by the President. SEC. 1902. [6 U.S.C. 592] MISSION OF OFFICE. (a) Mission.--The Office shall be responsible for coordinating Federal efforts to detect and protect against the unauthorized importation, possession, storage, transportation, development, or use of a nuclear explosive device, fissile material, or radiological material in the United States, and to protect against attack using such devices or materials against the people, territory, or interests of the United States and, to this end, shall-- (1) serve as the primary entity of the United States Government to further develop, acquire, and support the deployment of an enhanced domestic system to detect and report on attempts to import, possess, store, transport, develop, or use an unauthorized nuclear explosive device, fissile material, or radiological material in the United States, and improve that system over time; (2) enhance and coordinate the nuclear detection efforts of Federal, State, local, and tribal governments and the private sector to ensure a managed, coordinated response; (3) establish, with the approval of the Secretary and in coordination with the Attorney General, the Secretary of Defense, and the Secretary of Energy, additional protocols and procedures for use within the United States to ensure that the detection of unauthorized nuclear explosive devices, fissile material, or radiological material is promptly reported to the Attorney General, the Secretary, the Secretary of Defense, the Secretary of Energy, and other appropriate officials or their respective designees for appropriate action by law enforcement, military, emergency response, or other authorities; (4) develop, with the approval of the Secretary and in coordination with the Attorney General, the Secretary of State, the Secretary of Defense, and the Secretary of Energy, an enhanced global nuclear detection architecture with implementation under which-- (A) the Office will be responsible for the implementation of the domestic portion of the global architecture; (B) the Secretary of Defense will retain responsibility for implementation of Department of Defense requirements within and outside the United States; and (C) the Secretary of State, the Secretary of Defense, and the Secretary of Energy will maintain their respective responsibilities for policy guidance and implementation of the portion of the global architecture outside the United States, which will be implemented consistent with applicable law and relevant international arrangements; (5) ensure that the expertise necessary to accurately interpret detection data is made available in a timely manner for all technology deployed by the Office to implement the global nuclear detection architecture; (6) conduct, support, coordinate, and encourage an aggressive, expedited, evolutionary, and transformational program of research and development to generate and improve technologies to detect and prevent the illicit entry, transport, assembly, or potential use within the United States of a nuclear explosive device or fissile or radiological material, and coordinate with the Under Secretary for Science and Technology on basic and advanced or transformational research and development efforts relevant to the mission of both organizations; (7) carry out a program to test and evaluate technology for detecting a nuclear explosive device and fissile or radiological material, in coordination with the Secretary of Defense and the Secretary of Energy, as appropriate, and establish performance metrics for evaluating the effectiveness of individual detectors and detection systems in detecting such devices or material-- (A) under realistic operational and environmental conditions; and (B) against realistic adversary tactics and countermeasures; (8) support and enhance the effective sharing and use of appropriate information generated by the intelligence community, law enforcement agencies, counterterrorism community, other government agencies, and foreign governments, as well as provide appropriate information to such entities; (9) further enhance and maintain continuous awareness by analyzing information from all Office mission-related detection systems; and (10) perform other duties as assigned by the Secretary. SEC. 1903. [6 U.S.C. 593] HIRING AUTHORITY. In hiring personnel for the Office, the Secretary shall have the hiring and management authorities provided in section 1101 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note). The term of appointments for employees under subsection (c)(1) of such section may not exceed 5 years before granting any extension under subsection (c)(2) of such section. SEC. 1904. [6 U.S.C. 594] TESTING AUTHORITY. (a) In General.--The Director shall coordinate with the responsible Federal agency or other entity to facilitate the use by the Office, by its contractors, or by other persons or entities, of existing Government laboratories, centers, ranges, or other testing facilities for the testing of materials, equipment, models, computer software, and other items as may be related to the missions identified in section 1902. Any such use of Government facilities shall be carried out in accordance with all applicable laws, regulations, and contractual provisions, including those governing security, safety, and environmental protection, including, when applicable, the provisions of section 309. The Office may direct that private sector entities utilizing Government facilities in accordance with this section pay an appropriate fee to the agency that owns or operates those facilities to defray additional costs to the Government resulting from such use. (b) Confidentiality of Test Results.--The results of tests performed with services made available shall be confidential and shall not be disclosed outside the Federal Government without the consent of the persons for whom the tests are performed. (c) Fees.--Fees for services made available under this section shall not exceed the amount necessary to recoup the direct and indirect costs involved, such as direct costs of utilities, contractor support, and salaries of personnel that are incurred by the United States to provide for the testing. (d) Use of Fees.--Fees received for services made available under this section may be credited to the appropriation from which funds were expended to provide such services. SEC. 1905. [6 U.S.C. 595] RELATIONSHIP TO OTHER DEPARTMENT ENTITIES AND FEDERAL AGENCIES. The authority of the Director under this title shall not affect the authorities or responsibilities of any officer of the Department or of any officer of any other department or agency of the United States with respect to the command, control, or direction of the functions, personnel, funds, assets, and liabilities of any entity within the Department or any Federal department or agency. SEC. 1906. [6 U.S.C. 596] CONTRACTING AND GRANT MAKING AUTHORITIES. The Secretary, acting through the Director for Domestic Nuclear Detection, in carrying out the responsibilities under paragraphs (6) and (7) of section 1902(a), shall-- (1) operate extramural and intramural programs and distribute funds through grants, cooperative agreements, and other transactions and contracts; (2) ensure that activities under paragraphs (6) and (7) of section 1902(a) include investigations of radiation detection equipment in configurations suitable for deployment at seaports, which may include underwater or water surface detection equipment and detection equipment that can be mounted on cranes and straddle cars used to move shipping containers; and (3) have the authority to establish or contract with 1 or more federally funded research and development centers to provide independent analysis of homeland security issues and carry out other responsibilities under this title. SEC. 1907. [6 U.S.C. 596A] JOINT ANNUAL INTERAGENCY REVIEW OF GLOBAL NUCLEAR DETECTION ARCHITECTURE. (a) Annual Review.-- (1) In general.--The Secretary, the Attorney General, the Secretary of State, the Secretary of Defense, the Secretary of Energy, and the Director of National Intelligence shall jointly ensure interagency coordination on the development and implementation of the global nuclear detection architecture by ensuring that, not less frequently than once each year-- (A) each relevant agency, office, or entity-- (i) assesses its involvement, support, and participation in the development, revision, and implementation of the global nuclear detection architecture; and (ii) examines and evaluates components of the global nuclear detection architecture (including associated strategies and acquisition plans) relating to the operations of that agency, office, or entity, to determine whether such components incorporate and address current threat assessments, scenarios, or intelligence analyses developed by the Director of National Intelligence or other agencies regarding threats relating to nuclear or radiological weapons of mass destruction; and (B) each agency, office, or entity deploying or operating any nuclear or radiological detection technology under the global nuclear detection architecture-- (i) evaluates the deployment and operation of nuclear or radiological detection technologies under the global nuclear detection architecture by that agency, office, or entity; (ii) identifies performance deficiencies and operational or technical deficiencies in nuclear or radiological detection technologies deployed under the global nuclear detection architecture; and (iii) assesses the capacity of that agency, office, or entity to implement the responsibilities of that agency, office, or entity under the global nuclear detection architecture. (2) Technology.--Not less frequently than once each year, the Secretary shall examine and evaluate the development, assessment, and acquisition of radiation detection technologies deployed or implemented in support of the domestic portion of the global nuclear detection architecture. (b) Annual Report on Joint Interagency Review.-- (1) In general.--Not later than March 31 of each year, the Secretary, the Attorney General, the Secretary of State, the Secretary of Defense, the Secretary of Energy, and the Director of National Intelligence, shall jointly submit a report regarding the implementation of this section and the results of the reviews required under subsection (a) to-- (A) the President; (B) the Committee on Appropriations, the Committee on Armed Services, the Select Committee on Intelligence, and the Committee on Homeland Security and Governmental Affairs of the Senate; and (C) the Committee on Appropriations, the Committee on Armed Services, the Permanent Select Committee on Intelligence, the Committee on Homeland Security, and the Committee on Science and Technology of the House of Representatives. (2) Form.--The annual report submitted under paragraph (1) shall be submitted in unclassified form to the maximum extent practicable, but may include a classified annex. (c) Definition.--In this section, the term ``global nuclear detection architecture'' means the global nuclear detection architecture developed under section 1902. TITLE XX--HOMELAND SECURITY GRANTS SEC. 2001. [6 U.S.C. 601] DEFINITIONS. In this title, the following definitions shall apply: (1) Administrator.--The term ``Administrator'' means the Administrator of the Federal Emergency Management Agency. (2) Appropriate committees of congress.--The term ``appropriate committees of Congress'' means-- (A) the Committee on Homeland Security and Governmental Affairs of the Senate; and (B) those committees of the House of Representatives that the Speaker of the House of Representatives determines appropriate. (3) Critical infrastructure sectors.--The term ``critical infrastructure sectors'' means the following sectors, in both urban and rural areas: (A) Agriculture and food. (B) Banking and finance. (C) Chemical industries. (D) Commercial facilities. (E) Commercial nuclear reactors, materials, and waste. (F) Dams. (G) The defense industrial base. (H) Emergency services. (I) Energy. (J) Government facilities. (K) Information technology. (L) National monuments and icons. (M) Postal and shipping. (N) Public health and health care. (O) Telecommunications. (P) Transportation systems. (Q) Water. (4) Directly eligible tribe.--The term ``directly eligible tribe'' means-- (A) any Indian tribe-- (i) that is located in the continental United States; (ii) that operates a law enforcement or emergency response agency with the capacity to respond to calls for law enforcement or emergency services; (iii)(I) that is located on or near an international border or a coastline bordering an ocean (including the Gulf of Mexico) or international waters; (II) that is located within 10 miles of a system or asset included on the prioritized critical infrastructure list established under section 210E(a)(2) or has such a system or asset within its territory; (III) that is located within or contiguous to 1 of the 50 most populous metropolitan statistical areas in the United States; or (IV) the jurisdiction of which includes not less than 1,000 square miles of Indian country, as that term is defined in section 1151 of title 18, United States Code; and (iv) that certifies to the Secretary that a State has not provided funds under section 2003 or 2004 to the Indian tribe or consortium of Indian tribes for the purpose for which direct funding is sought; and (B) a consortium of Indian tribes, if each tribe satisfies the requirements of subparagraph (A). (5) Eligible metropolitan area.--The term ``eligible metropolitan area'' means any of the 100 most populous metropolitan statistical areas in the United States. (6) High-risk urban area.--The term ``high-risk urban area'' means a high-risk urban area designated under section 2003(b)(3)(A). (7) Indian tribe.--The term ``Indian tribe'' has the meaning given that term in section 4(e) of the Indian Self-Determination Act (25 U.S.C. 450b(e)). (8) Metropolitan statistical area.--The term ``metropolitan statistical area'' means a metropolitan statistical area, as defined by the Office of Management and Budget. (9) National special security event.--The term ``National Special Security Event'' means a designated event that, by virtue of its political, economic, social, or religious significance, may be the target of terrorism or other criminal activity. (10) Population.--The term ``population'' means population according to the most recent United States census population estimates available at the start of the relevant fiscal year. (11) Population density.--The term ``population density'' means population divided by land area in square miles. (12) Qualified intelligence analyst.--The term ``qualified intelligence analyst'' means an intelligence analyst (as that term is defined in section 210A(j)), including law enforcement personnel-- (A) who has successfully completed training to ensure baseline proficiency in intelligence analysis and production, as determined by the Secretary, which may include training using a curriculum developed under section 209; or (B) whose experience ensures baseline proficiency in intelligence analysis and production equivalent to the training required under subparagraph (A), as determined by the Secretary. (13) Target capabilities.--The term ``target capabilities'' means the target capabilities for Federal, State, local, and tribal government preparedness for which guidelines are required to be established under section 646(a) of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 746(a)). (14) Tribal government.--The term ``tribal government'' means the government of an Indian tribe. Subtitle A--Grants to States and High-Risk Urban Areas SEC. 2002. [6 U.S.C. 603] HOMELAND SECURITY GRANT PROGRAMS. (a) Grants Authorized.--The Secretary, through the Administrator, may award grants under sections 2003 and 2004 to State, local, and tribal governments. (b) Programs Not Affected.--This subtitle shall not be construed to affect any of the following Federal programs: (1) Firefighter and other assistance programs authorized under the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2201 et seq.). (2) Grants authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.). (3) Emergency Management Performance Grants under the amendments made by title II of the Implementing Recommendations of the 9/11 Commission Act of 2007. (4) Grants to protect critical infrastructure, including port security grants authorized under section 70107 of title 46, United States Code, and the grants authorized under title XIV and XV of the Implementing Recommendations of the 9/11 Commission Act of 2007 and the amendments made by such titles. (5) The Metropolitan Medical Response System authorized under section 635 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 723). (6) The Interoperable Emergency Communications Grant Program authorized under title XVIII. (7) Grant programs other than those administered by the Department. (c) Relationship to Other Laws.-- (1) In general.--The grant programs authorized under sections 2003 and 2004 shall supercede all grant programs authorized under section 1014 of the USA PATRIOT Act (42 U.S.C. 3714). (2) Allocation.--The allocation of grants authorized under section 2003 or 2004 shall be governed by the terms of this subtitle and not by any other provision of law. SEC. 2003. [6 U.S.C. 604] URBAN AREA SECURITY INITIATIVE. (a) Establishment.--There is established an Urban Area Security Initiative to provide grants to assist high-risk urban areas in preventing, preparing for, protecting against, and responding to acts of terrorism. (b) Assessment and Designation of High-Risk Urban Areas.-- (1) In general.--The Administrator shall designate high-risk urban areas to receive grants under this section based on procedures under this subsection. (2) Initial assessment.-- (A) In general.--For each fiscal year, the Administrator shall conduct an initial assessment of the relative threat, vulnerability, and consequences from acts of terrorism faced by each eligible metropolitan area, including consideration of-- (i) the factors set forth in subparagraphs (A) through (H) and (K) of section 2007(a)(1); and (ii) information and materials submitted under subparagraph (B). (B) Submission of information by eligible metropolitan areas.--Prior to conducting each initial assessment under subparagraph (A), the Administrator shall provide each eligible metropolitan area with, and shall notify each eligible metropolitan area of, the opportunity to-- (i) submit information that the eligible metropolitan area believes to be relevant to the determination of the threat, vulnerability, and consequences it faces from acts of terrorism; and (ii) review the risk assessment conducted by the Department of that eligible metropolitan area, including the bases for the assessment by the Department of the threat, vulnerability, and consequences from acts of terrorism faced by that eligible metropolitan area, and remedy erroneous or incomplete information. (3) Designation of high-risk urban areas.-- (A) Designation.-- (i) In general.--For each fiscal year, after conducting the initial assessment under paragraph (2), and based on that assessment, the Administrator shall designate high-risk urban areas that may submit applications for grants under this section. (ii) Additional areas.-- Notwithstanding paragraph (2), the Administrator may-- (I) in any case where an eligible metropolitan area consists of more than 1 metropolitan division (as that term is defined by the Office of Management and Budget) designate more than 1 high-risk urban area within a single eligible metropolitan area; and (II) designate an area that is not an eligible metropolitan area as a high-risk urban area based on the assessment by the Administrator of the relative threat, vulnerability, and consequences from acts of terrorism faced by the area. (iii) Rule of construction.-- Nothing in this subsection may be construed to require the Administrator to-- (I) designate all eligible metropolitan areas that submit information to the Administrator under paragraph (2)(B)(i) as high-risk urban areas; or (II) designate all areas within an eligible metropolitan area as part of the high-risk urban area. (B) Jurisdictions included in high-risk urban areas.-- (i) In general.--In designating high-risk urban areas under subparagraph (A), the Administrator shall determine which jurisdictions, at a minimum, shall be included in each high-risk urban area. (ii) Additional jurisdictions.--A high-risk urban area designated by the Administrator may, in consultation with the State or States in which such high- risk urban area is located, add additional jurisdictions to the high- risk urban area. (c) Application.-- (1) In general.--An area designated as a high-risk urban area under subsection (b) may apply for a grant under this section. (2) Minimum contents of application.--In an application for a grant under this section, a high-risk urban area shall submit-- (A) a plan describing the proposed division of responsibilities and distribution of funding among the local and tribal governments in the high-risk urban area; (B) the name of an individual to serve as a high-risk urban area liaison with the Department and among the various jurisdictions in the high-risk urban area; and (C) such information in support of the application as the Administrator may reasonably require. (3) Annual applications.--Applicants for grants under this section shall apply or reapply on an annual basis. (4) State review and transmission.-- (A) In general.--To ensure consistency with State homeland security plans, a high-risk urban area applying for a grant under this section shall submit its application to each State within which any part of that high-risk urban area is located for review before submission of such application to the Department. (B) Deadline.--Not later than 30 days after receiving an application from a high-risk urban area under subparagraph (A), a State shall transmit the application to the Department. (C) Opportunity for state comment.--If the Governor of a State determines that an application of a high-risk urban area is inconsistent with the State homeland security plan of that State, or otherwise does not support the application, the Governor shall-- (i) notify the Administrator, in writing, of that fact; and (ii) provide an explanation of the reason for not supporting the application at the time of transmission of the application. (5) Opportunity to amend.--In considering applications for grants under this section, the Administrator shall provide applicants with a reasonable opportunity to correct defects in the application, if any, before making final awards. (d) Distribution of Awards.-- (1) In general.--If the Administrator approves the application of a high-risk urban area for a grant under this section, the Administrator shall distribute the grant funds to the State or States in which that high- risk urban area is located. (2) State distribution of funds.-- (A) In general.--Not later than 45 days after the date that a State receives grant funds under paragraph (1), that State shall provide the high-risk urban area awarded that grant not less than 80 percent of the grant funds. Any funds retained by a State shall be expended on items, services, or activities that benefit the high-risk urban area. (B) Funds retained.--A State shall provide each relevant high-risk urban area with an accounting of the items, services, or activities on which any funds retained by the State under subparagraph (A) were expended. (3) Interstate urban areas.--If parts of a high- risk urban area awarded a grant under this section are located in 2 or more States, the Administrator shall distribute to each such State-- (A) a portion of the grant funds in accordance with the proposed distribution set forth in the application; or (B) if no agreement on distribution has been reached, a portion of the grant funds determined by the Administrator to be appropriate. (4) Certifications regarding distribution of grant funds to high-risk urban areas.--A State that receives grant funds under paragraph (1) shall certify to the Administrator that the State has made available to the applicable high-risk urban area the required funds under paragraph (2). (e) Authorization of Appropriations.--There are authorized to be appropriated for grants under this section-- (1) $850,000,000 for fiscal year 2008; (2) $950,000,000 for fiscal year 2009; (3) $1,050,000,000 for fiscal year 2010; (4) $1,150,000,000 for fiscal year 2011; (5) $1,300,000,000 for fiscal year 2012; and (6) such sums as are necessary for fiscal year 2013, and each fiscal year thereafter. SEC. 2004. [6 U.S.C. 605] STATE HOMELAND SECURITY GRANT PROGRAM. (a) Establishment.--There is established a State Homeland Security Grant Program to assist State, local, and tribal governments in preventing, preparing for, protecting against, and responding to acts of terrorism. (b) Application.-- (1) In general.--Each State may apply for a grant under this section, and shall submit such information in support of the application as the Administrator may reasonably require. (2) Minimum contents of application.--The Administrator shall require that each State include in its application, at a minimum-- (A) the purpose for which the State seeks grant funds and the reasons why the State needs the grant to meet the target capabilities of that State; (B) a description of how the State plans to allocate the grant funds to local governments and Indian tribes; and (C) a budget showing how the State intends to expend the grant funds. (3) Annual applications.--Applicants for grants under this section shall apply or reapply on an annual basis. (c) Distribution to Local and Tribal Governments.-- (1) In general.--Not later than 45 days after receiving grant funds, any State receiving a grant under this section shall make available to local and tribal governments, consistent with the applicable State homeland security plan-- (A) not less than 80 percent of the grant funds; (B) with the consent of local and tribal governments, items, services, or activities having a value of not less than 80 percent of the amount of the grant; or (C) with the consent of local and tribal governments, grant funds combined with other items, services, or activities having a total value of not less than 80 percent of the amount of the grant. (2) Certifications regarding distribution of grant funds to local governments.--A State shall certify to the Administrator that the State has made the distribution to local and tribal governments required under paragraph (1). (3) Extension of period.--The Governor of a State may request in writing that the Administrator extend the period under paragraph (1) for an additional period of time. The Administrator may approve such a request if the Administrator determines that the resulting delay in providing grant funding to the local and tribal governments is necessary to promote effective investments to prevent, prepare for, protect against, or respond to acts of terrorism. (4) Exception.--Paragraph (1) shall not apply to the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, or the Virgin Islands. (5) Direct funding.--If a State fails to make the distribution to local or tribal governments required under paragraph (1) in a timely fashion, a local or tribal government entitled to receive such distribution may petition the Administrator to request that grant funds be provided directly to the local or tribal government. (d) Multistate Applications.-- (1) In general.--Instead of, or in addition to, any application for a grant under subsection (b), 2 or more States may submit an application for a grant under this section in support of multistate efforts to prevent, prepare for, protect against, and respond to acts of terrorism. (2) Administration of grant.--If a group of States applies for a grant under this section, such States shall submit to the Administrator at the time of application a plan describing-- (A) the division of responsibilities for administering the grant; and (B) the distribution of funding among the States that are parties to the application. (e) Minimum Allocation.-- (1) In general.--In allocating funds under this section, the Administrator shall ensure that-- (A) except as provided in subparagraph (B), each State receives, from the funds appropriated for the State Homeland Security Grant Program established under this section, not less than an amount equal to-- (i) 0.375 percent of the total funds appropriated for grants under this section and section 2003 in fiscal year 2008; (ii) 0.365 percent of the total funds appropriated for grants under this section and section 2003 in fiscal year 2009; (iii) 0.36 percent of the total funds appropriated for grants under this section and section 2003 in fiscal year 2010; (iv) 0.355 percent of the total funds appropriated for grants under this section and section 2003 in fiscal year 2011; and (v) 0.35 percent of the total funds appropriated for grants under this section and section 2003 in fiscal year 2012 and in each fiscal year thereafter; and (B) for each fiscal year, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands each receive, from the funds appropriated for the State Homeland Security Grant Program established under this section, not less than an amount equal to 0.08 percent of the total funds appropriated for grants under this section and section 2003. (2) Effect of multistate award on state minimum.-- Any portion of a multistate award provided to a State under subsection (d) shall be considered in calculating the minimum State allocation under this subsection. (f) Authorization of Appropriations.--There are authorized to be appropriated for grants under this section-- (1) $950,000,000 for each of fiscal years 2008 through 2012; and (2) such sums as are necessary for fiscal year 2013, and each fiscal year thereafter. SEC. 2005. [6 U.S.C. 606] GRANTS TO DIRECTLY ELIGIBLE TRIBES. (a) In General.--Notwithstanding section 2004(b), the Administrator may award grants to directly eligible tribes under section 2004. (b) Tribal Applications.--A directly eligible tribe may apply for a grant under section 2004 by submitting an application to the Administrator that includes, as appropriate, the information required for an application by a State under section 2004(b). (c) Consistency With State Plans.-- (1) In general.--To ensure consistency with any applicable State homeland security plan, a directly eligible tribe applying for a grant under section 2004 shall provide a copy of its application to each State within which any part of the tribe is located for review before the tribe submits such application to the Department. (2) Opportunity for comment.--If the Governor of a State determines that the application of a directly eligible tribe is inconsistent with the State homeland security plan of that State, or otherwise does not support the application, not later than 30 days after the date of receipt of that application the Governor shall-- (A) notify the Administrator, in writing, of that fact; and (B) provide an explanation of the reason for not supporting the application. (d) Final Authority.--The Administrator shall have final authority to approve any application of a directly eligible tribe. The Administrator shall notify each State within the boundaries of which any part of a directly eligible tribe is located of the approval of an application by the tribe. (e) Prioritization.--The Administrator shall allocate funds to directly eligible tribes in accordance with the factors applicable to allocating funds among States under section 2007. (f) Distribution of Awards to Directly Eligible Tribes.--If the Administrator awards funds to a directly eligible tribe under this section, the Administrator shall distribute the grant funds directly to the tribe and not through any State. (g) Minimum Allocation.-- (1) In general.--In allocating funds under this section, the Administrator shall ensure that, for each fiscal year, directly eligible tribes collectively receive, from the funds appropriated for the State Homeland Security Grant Program established under section 2004, not less than an amount equal to 0.1 percent of the total funds appropriated for grants under sections 2003 and 2004. (2) Exception.--This subsection shall not apply in any fiscal year in which the Administrator-- (A) receives fewer than 5 applications under this section; or (B) does not approve at least 2 applications under this section. (h) Tribal Liaison.--A directly eligible tribe applying for a grant under section 2004 shall designate an individual to serve as a tribal liaison with the Department and other Federal, State, local, and regional government officials concerning preventing, preparing for, protecting against, and responding to acts of terrorism. (i) Eligibility for Other Funds.--A directly eligible tribe that receives a grant under section 2004 may receive funds for other purposes under a grant from the State or States within the boundaries of which any part of such tribe is located and from any high-risk urban area of which it is a part, consistent with the homeland security plan of the State or high-risk urban area. (j) State Obligations.-- (1) In general.--States shall be responsible for allocating grant funds received under section 2004 to tribal governments in order to help those tribal communities achieve target capabilities not achieved through grants to directly eligible tribes. (2) Distribution of grant funds.--With respect to a grant to a State under section 2004, an Indian tribe shall be eligible for funding directly from that State, and shall not be required to seek funding from any local government. (3) Imposition of requirements.--A State may not impose unreasonable or unduly burdensome requirements on an Indian tribe as a condition of providing the Indian tribe with grant funds or resources under section 2004. (k) Rule of Construction.--Nothing in this section shall be construed to affect the authority of an Indian tribe that receives funds under this subtitle. SEC. 2006. [6 U.S.C. 607] TERRORISM PREVENTION. (a) Law Enforcement Terrorism Prevention Program.-- (1) In general.--The Administrator shall ensure that not less than 25 percent of the total combined funds appropriated for grants under sections 2003 and 2004 is used for law enforcement terrorism prevention activities. (2) Law enforcement terrorism prevention activities.--Law enforcement terrorism prevention activities include-- (A) information sharing and analysis; (B) target hardening; (C) threat recognition; (D) terrorist interdiction; (E) overtime expenses consistent with a State homeland security plan, including for the provision of enhanced law enforcement operations in support of Federal agencies, including for increased border security and border crossing enforcement; (F) establishing, enhancing, and staffing with appropriately qualified personnel State, local, and regional fusion centers that comply with the guidelines established under section 210A(i); (G) paying salaries and benefits for personnel, including individuals employed by the grant recipient on the date of the relevant grant application, to serve as qualified intelligence analysts; (H) any other activity permitted under the Fiscal Year 2007 Program Guidance of the Department for the Law Enforcement Terrorism Prevention Program; and (I) any other terrorism prevention activity authorized by the Administrator. (3) Participation of underrepresented communities in fusion centers.--The Administrator shall ensure that grant funds described in paragraph (1) are used to support the participation, as appropriate, of law enforcement and other emergency response providers from rural and other underrepresented communities at risk from acts of terrorism in fusion centers. (b) Office for State and Local Law Enforcement.-- (1) Establishment.--There is established in the Policy Directorate of the Department an Office for State and Local Law Enforcement, which shall be headed by an Assistant Secretary for State and Local Law Enforcement. (2) Qualifications.--The Assistant Secretary for State and Local Law Enforcement shall have an appropriate background with experience in law enforcement, intelligence, and other counterterrorism functions. (3) Assignment of personnel.--The Secretary shall assign to the Office for State and Local Law Enforcement permanent staff and, as appropriate and consistent with sections 506(c)(2), 821, and 888(d), other appropriate personnel detailed from other components of the Department to carry out the responsibilities under this subsection. (4) Responsibilities.--The Assistant Secretary for State and Local Law Enforcement shall-- (A) lead the coordination of Department- wide policies relating to the role of State and local law enforcement in preventing, preparing for, protecting against, and responding to natural disasters, acts of terrorism, and other man-made disasters within the United States; (B) serve as a liaison between State, local, and tribal law enforcement agencies and the Department; (C) coordinate with the Office of Intelligence and Analysis to ensure the intelligence and information sharing requirements of State, local, and tribal law enforcement agencies are being addressed; (D) work with the Administrator to ensure that law enforcement and terrorism-focused grants to State, local, and tribal government agencies, including grants under sections 2003 and 2004, the Commercial Equipment Direct Assistance Program, and other grants administered by the Department to support fusion centers and law enforcement-oriented programs, are appropriately focused on terrorism prevention activities; (E) coordinate with the Science and Technology Directorate, the Federal Emergency Management Agency, the Department of Justice, the National Institute of Justice, law enforcement organizations, and other appropriate entities to support the development, promulgation, and updating, as necessary, of national voluntary consensus standards for training and personal protective equipment to be used in a tactical environment by law enforcement officers; and (F) conduct, jointly with the Administrator, a study to determine the efficacy and feasibility of establishing specialized law enforcement deployment teams to assist State, local, and tribal governments in responding to natural disasters, acts of terrorism, or other man-made disasters and report on the results of that study to the appropriate committees of Congress. (5) Rule of construction.--Nothing in this subsection shall be construed to diminish, supercede, or replace the responsibilities, authorities, or role of the Administrator. SEC. 2007. [6 U.S.C. 608] PRIORITIZATION. (a) In General.--In allocating funds among States and high- risk urban areas applying for grants under section 2003 or 2004, the Administrator shall consider, for each State or high- risk urban area-- (1) its relative threat, vulnerability, and consequences from acts of terrorism, including consideration of-- (A) its population, including appropriate consideration of military, tourist, and commuter populations; (B) its population density; (C) its history of threats, including whether it has been the target of a prior act of terrorism; (D) its degree of threat, vulnerability, and consequences related to critical infrastructure (for all critical infrastructure sectors) or key resources identified by the Administrator or the State homeland security plan, including threats, vulnerabilities, and consequences related to critical infrastructure or key resources in nearby jurisdictions; (E) the most current threat assessments available to the Department; (F) whether the State has, or the high-risk urban area is located at or near, an international border; (G) whether it has a coastline bordering an ocean (including the Gulf of Mexico) or international waters; (H) its likely need to respond to acts of terrorism occurring in nearby jurisdictions; (I) the extent to which it has unmet target capabilities; (J) in the case of a high-risk urban area, the extent to which that high-risk urban area includes-- (i) those incorporated municipalities, counties, parishes, and Indian tribes within the relevant eligible metropolitan area, the inclusion of which will enhance regional efforts to prevent, prepare for, protect against, and respond to acts of terrorism; and (ii) other local and tribal governments in the surrounding area that are likely to be called upon to respond to acts of terrorism within the high-risk urban area; and (K) such other factors as are specified in writing by the Administrator; and (2) the anticipated effectiveness of the proposed use of the grant by the State or high-risk urban area in increasing the ability of that State or high-risk urban area to prevent, prepare for, protect against, and respond to acts of terrorism, to meet its target capabilities, and to otherwise reduce the overall risk to the high-risk urban area, the State, or the Nation. (b) Types of Threat.--In assessing threat under this section, the Administrator shall consider the following types of threat to critical infrastructure sectors and to populations in all areas of the United States, urban and rural: (1) Biological. (2) Chemical. (3) Cyber. (4) Explosives. (5) Incendiary. (6) Nuclear. (7) Radiological. (8) Suicide bombers. (9) Such other types of threat determined relevant by the Administrator. SEC. 2008. [6 U.S.C. 609] USE OF FUNDS. (a) Permitted Uses.--The Administrator shall permit the recipient of a grant under section 2003 or 2004 to use grant funds to achieve target capabilities related to preventing, preparing for, protecting against, and responding to acts of terrorism, consistent with a State homeland security plan and relevant local, tribal, and regional homeland security plans, through-- (1) developing and enhancing homeland security, emergency management, or other relevant plans, assessments, or mutual aid agreements; (2) designing, conducting, and evaluating training and exercises, including training and exercises conducted under section 512 of this Act and section 648 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 748); (3) protecting a system or asset included on the prioritized critical infrastructure list established under section 210E(a)(2); (4) purchasing, upgrading, storing, or maintaining equipment, including computer hardware and software; (5) ensuring operability and achieving interoperability of emergency communications; (6) responding to an increase in the threat level under the Homeland Security Advisory System, or to the needs resulting from a National Special Security Event; (7) establishing, enhancing, and staffing with appropriately qualified personnel State, local, and regional fusion centers that comply with the guidelines established under section 210A(i); (8) enhancing school preparedness; (9) supporting public safety answering points; (10) paying salaries and benefits for personnel, including individuals employed by the grant recipient on the date of the relevant grant application, to serve as qualified intelligence analysts, regardless of whether such analysts are current or new full-time employees or contract employees; (11) paying expenses directly related to administration of the grant, except that such expenses may not exceed 3 percent of the amount of the grant; (12) any activity permitted under the Fiscal Year 2007 Program Guidance of the Department for the State Homeland Security Grant Program, the Urban Area Security Initiative (including activities permitted under the full-time counterterrorism staffing pilot), or the Law Enforcement Terrorism Prevention Program; and (13) any other appropriate activity, as determined by the Administrator. (b) Limitations on Use of Funds.-- (1) In general.--Funds provided under section 2003 or 2004 may not be used-- (A) to supplant State or local funds, except that nothing in this paragraph shall prohibit the use of grant funds provided to a State or high-risk urban area for otherwise permissible uses under subsection (a) on the basis that a State or high-risk urban area has previously used State or local funds to support the same or similar uses; or (B) for any State or local government cost- sharing contribution. (2) Personnel.-- (A) In general.--Not more than 50 percent of the amount awarded to a grant recipient under section 2003 or 2004 in any fiscal year may be used to pay for personnel, including overtime and backfill costs, in support of the permitted uses under subsection (a). (B) Waiver.--At the request of the recipient of a grant under section 2003 or 2004, the Administrator may grant a waiver of the limitation under subparagraph (A). (3) Limitations on discretion.-- (A) In general.--With respect to the use of amounts awarded to a grant recipient under section 2003 or 2004 for personnel costs in accordance with paragraph (2) of this subsection, the Administrator may not-- (i) impose a limit on the amount of the award that may be used to pay for personnel, or personnel-related, costs that is higher or lower than the percent limit imposed in paragraph (2)(A); or (ii) impose any additional limitation on the portion of the funds of a recipient that may be used for a specific type, purpose, or category of personnel, or personnel-related, costs. (B) Analysts.--If amounts awarded to a grant recipient under section 2003 or 2004 are used for paying salary or benefits of a qualified intelligence analyst under subsection (a)(10), the Administrator shall make such amounts available without time limitations placed on the period of time that the analyst can serve under the grant. (4) Construction.-- (A) In general.--A grant awarded under section 2003 or 2004 may not be used to acquire land or to construct buildings or other physical facilities. (B) Exceptions.-- (i) In general.--Notwithstanding subparagraph (A), nothing in this paragraph shall prohibit the use of a grant awarded under section 2003 or 2004 to achieve target capabilities related to preventing, preparing for, protecting against, or responding to acts of terrorism, including through the alteration or remodeling of existing buildings for the purpose of making such buildings secure against acts of terrorism. (ii) Requirements for exception.-- No grant awarded under section 2003 or 2004 may be used for a purpose described in clause (i) unless-- (I) specifically approved by the Administrator; (II) any construction work occurs under terms and conditions consistent with the requirements under section 611(j)(9) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5196(j)(9)); and (III) the amount allocated for purposes under clause (i) does not exceed the greater of $1,000,000 or 15 percent of the grant award. (5) Recreation.--Grants awarded under this subtitle may not be used for recreational or social purposes. (c) Multiple-Purpose Funds.--Nothing in this subtitle shall be construed to prohibit State, local, or tribal governments from using grant funds under sections 2003 and 2004 in a manner that enhances preparedness for disasters unrelated to acts of terrorism, if such use assists such governments in achieving target capabilities related to preventing, preparing for, protecting against, or responding to acts of terrorism. (d) Reimbursement of Costs.-- (1) Paid-on-call or volunteer reimbursement.--In addition to the activities described in subsection (a), a grant under section 2003 or 2004 may be used to provide a reasonable stipend to paid-on-call or volunteer emergency response providers who are not otherwise compensated for travel to or participation in training or exercises related to the purposes of this subtitle. Any such reimbursement shall not be considered compensation for purposes of rendering an emergency response provider an employee under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.). (2) Performance of federal duty.--An applicant for a grant under section 2003 or 2004 may petition the Administrator to use the funds from its grants under those sections for the reimbursement of the cost of any activity relating to preventing, preparing for, protecting against, or responding to acts of terrorism that is a Federal duty and usually performed by a Federal agency, and that is being performed by a State or local government under agreement with a Federal agency. (e) Flexibility in Unspent Homeland Security Grant Funds.-- Upon request by the recipient of a grant under section 2003 or 2004, the Administrator may authorize the grant recipient to transfer all or part of the grant funds from uses specified in the grant agreement to other uses authorized under this section, if the Administrator determines that such transfer is in the interests of homeland security. (f) Equipment Standards.--If an applicant for a grant under section 2003 or 2004 proposes to upgrade or purchase, with assistance provided under that grant, new equipment or systems that do not meet or exceed any applicable national voluntary consensus standards developed under section 647 of the Post- Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 747), the applicant shall include in its application an explanation of why such equipment or systems will serve the needs of the applicant better than equipment or systems that meet or exceed such standards. Subtitle B--Grants Administration SEC. 2021. [6 U.S.C. 611] ADMINISTRATION AND COORDINATION. (a) Regional Coordination.--The Administrator shall ensure that-- (1) all recipients of grants administered by the Department to prevent, prepare for, protect against, or respond to natural disasters, acts of terrorism, or other man-made disasters (excluding assistance provided under section 203, title IV, or title V of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5133, 5170 et seq., and 5191 et seq.)) coordinate, as appropriate, their prevention, preparedness, and protection efforts with neighboring State, local, and tribal governments; and (2) all high-risk urban areas and other recipients of grants administered by the Department to prevent, prepare for, protect against, or respond to natural disasters, acts of terrorism, or other man-made disasters (excluding assistance provided under section 203, title IV, or title V of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5133, 5170 et seq., and 5191 et seq.)) that include or substantially affect parts or all of more than 1 State coordinate, as appropriate, across State boundaries, including, where appropriate, through the use of regional working groups and requirements for regional plans. (b) Planning Committees.-- (1) In general.--Any State or high-risk urban area receiving a grant under section 2003 or 2004 shall establish a planning committee to assist in preparation and revision of the State, regional, or local homeland security plan and to assist in determining effective funding priorities for grants under sections 2003 and 2004. (2) Composition.-- (A) In general.--The planning committee shall include representatives of significant stakeholders, including-- (i) local and tribal government officials; and (ii) emergency response providers, which shall include representatives of the fire service, law enforcement, emergency medical response, and emergency managers. (B) Geographic representation.--The members of the planning committee shall be a representative group of individuals from the counties, cities, towns, and Indian tribes within the State or high-risk urban area, including, as appropriate, representatives of rural, high-population, and high-threat jurisdictions. (3) Existing planning committees.--Nothing in this subsection may be construed to require that any State or high-risk urban area create a planning committee if that State or high-risk urban area has established and uses a multijurisdictional planning committee or commission that meets the requirements of this subsection. (c) Interagency Coordination.-- (1) In general.--Not later than 12 months after the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, the Secretary (acting through the Administrator), the Attorney General, the Secretary of Health and Human Services, and the heads of other agencies providing assistance to State, local, and tribal governments for preventing, preparing for, protecting against, and responding to natural disasters, acts of terrorism, and other man- made disasters, shall jointly-- (A) compile a comprehensive list of Federal grant programs for State, local, and tribal governments for preventing, preparing for, protecting against, and responding to natural disasters, acts of terrorism, and other man- made disasters; (B) compile the planning, reporting, application, and other requirements and guidance for the grant programs described in subparagraph (A); (C) develop recommendations, as appropriate, to-- (i) eliminate redundant and duplicative requirements for State, local, and tribal governments, including onerous application and ongoing reporting requirements; (ii) ensure accountability of the programs to the intended purposes of such programs; (iii) coordinate allocation of grant funds to avoid duplicative or inconsistent purchases by the recipients; (iv) make the programs more accessible and user friendly to applicants; and (v) ensure the programs are coordinated to enhance the overall preparedness of the Nation; (D) submit the information and recommendations under subparagraphs (A), (B), and (C) to the appropriate committees of Congress; and (E) provide the appropriate committees of Congress, the Comptroller General, and any officer or employee of the Government Accountability Office with full access to any information collected or reviewed in preparing the submission under subparagraph (D). (2) Scope of task.--Nothing in this subsection shall authorize the elimination, or the alteration of the purposes, as delineated by statute, regulation, or guidance, of any grant program that exists on the date of the enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, nor authorize the review or preparation of proposals on the elimination, or the alteration of such purposes, of any such grant program. (d) Sense of Congress.--It is the sense of Congress that, in order to ensure that the Nation is most effectively able to prevent, prepare for, protect against, and respond to all hazards, including natural disasters, acts of terrorism, and other man-made disasters-- (1) the Department should administer a coherent and coordinated system of both terrorism-focused and all- hazards grants; (2) there should be a continuing and appropriate balance between funding for terrorism-focused and all- hazards preparedness, as reflected in the authorizations of appropriations for grants under the amendments made by titles I and II, as applicable, of the Implementing Recommendations of the 9/11 Commission Act of 2007; and (3) with respect to terrorism-focused grants, it is necessary to ensure both that the target capabilities of the highest risk areas are achieved quickly and that basic levels of preparedness, as measured by the attainment of target capabilities, are achieved nationwide. SEC. 2022. [6 U.S.C. 612] ACCOUNTABILITY. (a) Audits of Grant Programs.-- (1) Compliance requirements.-- (A) Audit requirement.--Each recipient of a grant administered by the Department that expends not less than $500,000 in Federal funds during its fiscal year shall submit to the Administrator a copy of the organization-wide financial and compliance audit report required under chapter 75 of title 31, United States Code. (B) Access to information.--The Department and each recipient of a grant administered by the Department shall provide the Comptroller General and any officer or employee of the Government Accountability Office with full access to information regarding the activities carried out related to any grant administered by the Department. (C) Improper payments.--Consistent with the Improper Payments Information Act of 2002 (31 U.S.C. 3321 note), for each of the grant programs under sections 2003 and 2004 of this title and section 662 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 762), the Administrator shall specify policies and procedures for-- (i) identifying activities funded under any such grant program that are susceptible to significant improper payments; and (ii) reporting any improper payments to the Department. (2) Agency program review.-- (A) In general.--Not less than once every 2 years, the Administrator shall conduct, for each State and high-risk urban area receiving a grant administered by the Department, a programmatic and financial review of all grants awarded by the Department to prevent, prepare for, protect against, or respond to natural disasters, acts of terrorism, or other man-made disasters, excluding assistance provided under section 203, title IV, or title V of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5133, 5170 et seq., and 5191 et seq.). (B) Contents.--Each review under subparagraph (A) shall, at a minimum, examine-- (i) whether the funds awarded were used in accordance with the law, program guidance, and State homeland security plans or other applicable plans; and (ii) the extent to which funds awarded enhanced the ability of a grantee to prevent, prepare for, protect against, and respond to natural disasters, acts of terrorism, and other man-made disasters. (C) Authorization of appropriations.--In addition to any other amounts authorized to be appropriated to the Administrator, there are authorized to be appropriated to the Administrator for reviews under this paragraph-- (i) $8,000,000 for each of fiscal years 2008, 2009, and 2010; and (ii) such sums as are necessary for fiscal year 2011, and each fiscal year thereafter. (3) Office of inspector general performance audits.-- (A) In general.--In order to ensure the effective and appropriate use of grants administered by the Department, the Inspector General of the Department each year shall conduct audits of a sample of States and high- risk urban areas that receive grants administered by the Department to prevent, prepare for, protect against, or respond to natural disasters, acts of terrorism, or other man-made disasters, excluding assistance provided under section 203, title IV, or title V of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5133, 5170 et seq., and 5191 et seq.). (B) Determining samples.--The sample selected for audits under subparagraph (A) shall be-- (i) of an appropriate size to-- (I) assess the overall integrity of the grant programs described in subparagraph (A); and (II) act as a deterrent to financial mismanagement; and (ii) selected based on-- (I) the size of the grants awarded to the recipient; (II) the past grant management performance of the recipient; (III) concerns identified by the Administrator, including referrals from the Administrator; and (IV) such other factors as determined by the Inspector General of the Department. (C) Comprehensive auditing.--During the 7- year period beginning on the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, the Inspector General of the Department shall conduct not fewer than 1 audit of each State that receives funds under a grant under section 2003 or 2004. (D) Report by the inspector general.-- (i) In general.--The Inspector General of the Department shall submit to the appropriate committees of Congress an annual consolidated report regarding the audits completed during the fiscal year before the date of that report. (ii) Contents.--Each report submitted under clause (i) shall describe, for the fiscal year before the date of that report-- (I) the audits conducted under subparagraph (A); (II) the findings of the Inspector General with respect to the audits conducted under subparagraph (A); (III) whether the funds awarded were used in accordance with the law, program guidance, and State homeland security plans and other applicable plans; and (IV) the extent to which funds awarded enhanced the ability of a grantee to prevent, prepare for, protect against, and respond to natural disasters, acts of terrorism and other man-made disasters. (iii) Deadline.--For each year, the report required under clause (i) shall be submitted not later than December 31. (E) Public availability on website.--The Inspector General of the Department shall make each audit conducted under subparagraph (A) available on the website of the Inspector General, subject to redaction as the Inspector General determines necessary to protect classified and other sensitive information. (F) Provision of information to administrator.--The Inspector General of the Department shall provide to the Administrator any findings and recommendations from audits conducted under subparagraph (A). (G) Evaluation of grants management and oversight.--Not later than 1 year after the date of enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007, the Inspector General of the Department shall review and evaluate the grants management and oversight practices of the Federal Emergency Management Agency, including assessment of and recommendations relating to-- (i) the skills, resources, and capabilities of the workforce; and (ii) any additional resources and staff necessary to carry out such management and oversight. (H) Authorization of appropriations.--In addition to any other amounts authorized to be appropriated to the Inspector General of the Department, there are authorized to be appropriated to the Inspector General of the Department for audits under subparagraph (A)-- (i) $8,500,000 for each of fiscal years 2008, 2009, and 2010; and (ii) such sums as are necessary for fiscal year 2011, and each fiscal year thereafter. (4) Performance assessment.--In order to ensure that States and high-risk urban areas are using grants administered by the Department appropriately to meet target capabilities and preparedness priorities, the Administrator shall-- (A) ensure that any such State or high-risk urban area conducts or participates in exercises under section 648(b) of the Post- Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 748(b)); (B) use performance metrics in accordance with the comprehensive assessment system under section 649 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 749) and ensure that any such State or high-risk urban area regularly tests its progress against such metrics through the exercises required under subparagraph (A); (C) use the remedial action management program under section 650 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 750); and (D) ensure that each State receiving a grant administered by the Department submits a report to the Administrator on its level of preparedness, as required by section 652(c) of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 752(c)). (5) Consideration of assessments.--In conducting program reviews and performance audits under paragraphs (2) and (3), the Administrator and the Inspector General of the Department shall take into account the performance assessment elements required under paragraph (4). (6) Recovery audits.--The Administrator shall conduct a recovery audit (as that term is defined by the Director of the Office of Management and Budget under section 3561 of title 31, United States Code) for any grant administered by the Department with a total value of not less than $1,000,000, if the Administrator finds that-- (A) a financial audit has identified improper payments that can be recouped; and (B) it is cost effective to conduct a recovery audit to recapture the targeted funds. (7) Remedies for noncompliance.-- (A) In general.--If, as a result of a review or audit under this subsection or otherwise, the Administrator finds that a recipient of a grant under this title has failed to substantially comply with any provision of law or with any regulations or guidelines of the Department regarding eligible expenditures, the Administrator shall-- (i) reduce the amount of payment of grant funds to the recipient by an amount equal to the amount of grants funds that were not properly expended by the recipient; (ii) limit the use of grant funds to programs, projects, or activities not affected by the failure to comply; (iii) refer the matter to the Inspector General of the Department for further investigation; (iv) terminate any payment of grant funds to be made to the recipient; or (v) take such other action as the Administrator determines appropriate. (B) Duration of penalty.--The Administrator shall apply an appropriate penalty under subparagraph (A) until such time as the Administrator determines that the grant recipient is in full compliance with the law and with applicable guidelines or regulations of the Department. (b) Reports by Grant Recipients.-- (1) Quarterly reports on homeland security spending.-- (A) In general.--As a condition of receiving a grant under section 2003 or 2004, a State, high-risk urban area, or directly eligible tribe shall, not later than 30 days after the end of each Federal fiscal quarter, submit to the Administrator a report on activities performed using grant funds during that fiscal quarter. (B) Contents.--Each report submitted under subparagraph (A) shall at a minimum include, for the applicable State, high-risk urban area, or directly eligible tribe, and each subgrantee thereof-- (i) the amount obligated to that recipient under section 2003 or 2004 in that quarter; (ii) the amount of funds received and expended under section 2003 or 2004 by that recipient in that quarter; and (iii) a summary description of expenditures made by that recipient using such funds, and the purposes for which such expenditures were made. (C) End-of-year report.--The report submitted under subparagraph (A) by a State, high-risk urban area, or directly eligible tribe relating to the last quarter of any fiscal year shall include-- (i) the amount and date of receipt of all funds received under the grant during that fiscal year; (ii) the identity of, and amount provided to, any subgrantee for that grant during that fiscal year; (iii) the amount and the dates of disbursements of all such funds expended in compliance with section 2021(a)(1) or under mutual aid agreements or other sharing arrangements that apply within the State, high-risk urban area, or directly eligible tribe, as applicable, during that fiscal year; and (iv) how the funds were used by each recipient or subgrantee during that fiscal year. (2) Annual report.--Any State applying for a grant under section 2004 shall submit to the Administrator annually a State preparedness report, as required by section 652(c) of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 752(c)). (c) Reports by the Administrator.-- (1) Federal preparedness report.--The Administrator shall submit to the appropriate committees of Congress annually the Federal Preparedness Report required under section 652(a) of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 752(a)). (2) Risk assessment.-- (A) In general.--For each fiscal year, the Administrator shall provide to the appropriate committees of Congress a detailed and comprehensive explanation of the methodologies used to calculate risk and compute the allocation of funds for grants administered by the Department, including-- (i) all variables included in the risk assessment and the weights assigned to each such variable; (ii) an explanation of how each such variable, as weighted, correlates to risk, and the basis for concluding there is such a correlation; and (iii) any change in the methodologies from the previous fiscal year, including changes in variables considered, weighting of those variables, and computational methods. (B) Classified annex.--The information required under subparagraph (A) shall be provided in unclassified form to the greatest extent possible, and may include a classified annex if necessary. (C) Deadline.--For each fiscal year, the information required under subparagraph (A) shall be provided on the earlier of-- (i) October 31; or (ii) 30 days before the issuance of any program guidance for grants administered by the Department. (3) Tribal funding report.--At the end of each fiscal year, the Administrator shall submit to the appropriate committees of Congress a report setting forth the amount of funding provided during that fiscal year to Indian tribes under any grant program administered by the Department, whether provided directly or through a subgrant from a State or high- risk urban area. 
36188	----	produced from scanned images of public domain material from the Google Print project.) THE JUDICIAL MURDER --OF-- MARY E. SURRATT. DAVID MILLER DEWITT. Baltimore: JOHN MURPHY & CO. 1895. COPYRIGHT, 1894, BY DAVID MILLER DEWITT. "_Oceans of horse-hair, continents of parchment, and learned-sergeant eloquence, were it continued till the learned tongue wore itself small in the indefatigable learned mouth, cannot make the unjust just. The grand question still remains, Was the judgment just? If unjust, it will not and cannot get harbour for itself, or continue to have footing in this Universe, which was made by other than One Unjust. Enforce it by never such statuting, three readings, royal assents; blow it to the four winds with all manner of quilted trumpeters and pursuivants, in the rear of them never so many gibbets and hangmen, it will not stand, it cannot stand. From all souls of men, from all ends of Nature, from the Throne of God above, there are voices bidding it: Away! Away!_" PAST AND PRESENT. CONTENTS. PAGE. PRELIMINARY CHAPTER I. The Reign of Terror, 1 CHAPTER II. The Bureau of Military (In)Justice, 15 PART I. THE MURDER. CHAPTER I. The Opening of the Court. Was She Ironed? 23 CHAPTER II. Animus of the Judges. Insults to Reverdy Johnson and General Edward Johnson, 41 CHAPTER III. Conduct of the Trial, 56 CHAPTER IV. Arguments of the Defense, 70 CHAPTER V. Charge of Judge Bingham, 82 CHAPTER VI. Verdict, Sentence and Petition, 91 CHAPTER VII. The Death Warrant and Execution, 112 CHAPTER VIII. Was it not Murder? The Milligan Case, 126 PART II. THE VINDICATION. CHAPTER I. Setting Aside the Verdict. Discharge of Jefferson Davis, 145 CHAPTER II. Reversal on the Merits. Trial of John H. Surratt, 165 CHAPTER III. The Recommendation to Mercy, 182 CHAPTER IV. Trial of Joseph Holt, 207 CHAPTER V. Andrew Johnson Signs another Death Warrant, 236 CHAPTER VI. Conclusion, 249 PRELIMINARY. CHAPTER I. THE REIGN OF TERROR. The assassination of Abraham Lincoln burst upon the City of Washington like a black thunder-bolt out of a cloudless sky. On Monday, the 3d of April, 1865, Richmond was taken. On the succeeding Sunday (the ninth), General Lee with the main Army of the South surrendered. The rebellion of nearly one-half the nation lay in its death-throes. The desperate struggle for the unity of the Republic was ending in a perfect triumph; and the loyal people gave full rein to their joy. Every night the streets of the city were illuminated. The chief officers of the government, one after another, were serenaded. On the evening of Tuesday, the eleventh, the President addressed his congratulations to an enthusiastic multitude from a window of the White House. On the night of Thursday (the thirteenth) Edwin M. Stanton, the Secretary of War, and Ulysses S. Grant, the victorious General of the Army of the North, were tumultuously greeted with banners and music and cannon at the residence of the Secretary. The next day, Friday the 14th, was the fourth anniversary of the surrender of Fort Sumter to the South, and that national humiliation was to be avenged by the restoration of the flag of the United States to its proper place above the fort by the hand of the same gallant officer who had been compelled to pull it down. In the evening, a torch-light procession perambulated the streets of the Federal Capital. Enthusiastic throngs filled the theatres, where the presence of great officials had been advertised by huge placards, and whose walls were everywhere festooned with the American flag. After four years of agonizing but unabating strain, all patriots felt justified in yielding to the full enjoyment of the glorious relaxation. Suddenly, at its very zenith, the snap of a pistol dislimns and scatters this great jubilee, as though it were, indeed, the insubstantial fabric of a vision. At half past ten that night, from the box of the theatre where the President is seated, a shot is heard; a wild figure, hatless and clutching a gleaming knife, emerges through the smoke; it leaps from the box to the stage, falls upon one knee, recovers itself, utters one shout and waves aloft its bloody weapon; then turns, limps across in front of the audience and disappears like a phantom behind the scenes. Simultaneously, there breaks upon the startled air the shriek of a woman, followed close by confused cries of "Water! Water!" and "The President is shot!" For the first few moments both audience and actors are paralyzed. One man alone jumps from the auditorium to the stage and pursues the flying apparition. But, as soon as the hopeless condition of the President and the escape of the assassin begin to transpire, angry murmurs of "Burn the Theatre!" are heard in the house, and soon swell into a roar in the street where a huge crowd has already assembled. The intermingling throng surges into the building from every quarter, and mounts guard at every exit. Not one of the company of actors is allowed to go out. The people seem to pause for a moment, as if awaiting from Heaven a retribution as sudden and awful as the crime. All their joy is turned to grief in the twinkling of an eye. The rebellion they had too easily believed to be dead could still strike, it seemed, a fatal blow against the very life of the Republic. A panic seizes the multitude in and around the theatre, and from the theatre spreads, "like the Night," over the whole city. And when the frightened citizens hear, as they immediately do, the story of the bloody massacre in the house of the Secretary of State, occurring at the same hour with the murder of the President, the panic swells into a reign of terror. The wildest stories find the quickest and most eager credence. Every member of the Cabinet and the General of the Army have been, or are about to be, killed; the government itself is at a standstill; and the lately discomfited rebels are soon to be in possession of the Capital. Patriotic people, delivering themselves over to a fear of they know not what, cry hoarsely for vengeance on they know not whom. The citizen upon whose past loyalty the slightest suspicion can be cast cowers for safety close to his hearth-stone. The terror-stricken multitude want but a leader cool and unscrupulous enough, to plunge into a promiscuous slaughter, such as stained the new-born revolution in France. A leader, indeed, they soon find, but he is not a Danton. He is a leader only in the sense that he has caught the same madness of terror and suspicion which has seized the people, that he holds high place, and that he has the power and is in a fit humor to pander to the panic. Edwin M. Stanton was forced by the tremendous crisis up to the very top of affairs. Vice-President Johnson, in the harrowing novelty of his position, was for the time being awed into passive docility. The Secretary of State was doubly disabled, if not killed. The General of the Army was absent. The Secretary of War without hesitation grasped the helm thus thrust into his hand, but, alas! he immediately lost his head. His exasperation at the irony of fate, which could so ruthlessly and in a moment wither the triumph of a great cause by so unexpected and overwhelming a calamity, was so profound and intense, his desire for immediate and commensurate vengeance was so uncontrollable and unreasoning, as to distort his perception, unsettle his judgment, and thus cause him to form an estimate of the nature and extent of the impending danger as false and exaggerated as that of the most panic-stricken wretch in the streets. Personally, besides, he was unfitted in many respects for such an emergency. Though an able and, it may be, a great War-Minister, he exerted no control over his temper; he habitually identified a conciliatory and charitable disposition with active disloyalty; and, being unpopular with the people of Washington by reason of the gruffness of his ways and the inconsistencies of his past political career, he had reached the unalterable conviction that the Capital was a nest of sympathizers with the South, and that he was surrounded by enemies of himself and his country. When, therefore, upon the crushing news that the President was slain, followed hard the announcement that another assassin had made a slaughter-house of the residence of the Minister's own colleague, self-possession--the one supreme quality which was indispensable to a leader at such an awful juncture--forsook him and fled. Before the breath was out of the body of the President, the Secretary had rushed to the conclusion, unsupported as yet by a shadow of testimony, that the acts of Booth and of the assailant of Seward (at the moment supposed to be John H. Surratt) were the outcome of a widespread, numerous and powerful conspiracy to kill, not only the President and the Secretary of State, but all the other heads of the Departments, the Vice-President and the General of the Army as well, and thus bring the government to an end; and that the primary moving power of the conspiracy was the defunct rebellion as represented by its titular President and his Cabinet, and its agents in Canada. This belief, embraced with so much precipitation, immediately became more than a belief; it became a fixed idea in his mind. He saw, heard, felt and cherished every thing that favored it. He would see nothing, would hear nothing, and hated every thing, that in the slightest degree militated against it. Upon this theory he began, and upon this theory he prosecuted to the end, every effort for the discovery, arrest, trial and punishment of the murderers. He was seconded by a lieutenant well-fitted for such a purpose--General Lafayette C. Baker, Chief of the Detective Force. In one of the two minority reports presented to the House of Representatives by the Judiciary Committee, on the Impeachment Investigation of 1867, this man and his methods are thus delineated: "The first witness examined was General Lafayette C. Baker, late chief of the detective police, and although examined on oath, time and again, and on various occasions, it is doubtful whether he has in any one thing told the truth, even by accident. In every important statement he is contradicted by witnesses of unquestioned credibility. And there can be no doubt that to his many previous outrages, entitling him to an unenviable immortality, he has added that of wilful and deliberate perjury; and we are glad to know that no one member of the committee deems any statement made by him as worthy of the slightest credit. What a blush of shame will tinge the cheek of the American student in future ages, when he reads that this miserable wretch for years held, as it were, in the hollow of his hand, the liberties of the American people. That, clothed with power by a reckless administration, and with his hordes of unprincipled tools and spies permeating the land everywhere, with uncounted thousands of the people's money placed in his hands for his vile purposes, this creature not only had power to arrest without crime or writ, and imprison without limit, any citizen of the republic, but that he actually did so arrest thousands, all over the land, and filled the prisons of the country with the victims of his malice, or that of his masters." In this man's hands Secretary Stanton placed all the resources of the War Department, in soldiers, detectives, material and money, and commanded him to push ahead and apprehend all persons suspected of complicity in the assumed conspiracy, and to conduct an investigation as to the origin and progress of the crime, upon the theory he had adopted and which, as much as any other, Baker was perfectly willing to accept and then, by his peculiar methods, establish. Forthwith was ushered in the grand carnival of detectives. Far and wide they sped. They had orders from Baker to do two things: I.--To arrest all the "Suspect." II.--By promises, rewards, threats, deceit, force, or any other effectual means, to extort confessions and procure testimony to establish the conspiracy whose existence had been postulated. At two o'clock in the morning of Saturday, the fifteenth, they burst into the house of Mrs. Surratt and displaying the bloody collar of the coat of the dying Lincoln, demanded the whereabouts of Booth and Surratt. It being presently discovered that Booth had escaped on horseback across the Navy Yard Bridge with David Herold ten minutes in his rear, a dash was made upon the livery-stables of Washington, their proprietors taken into custody, and then the whole of lower Maryland was invaded, the soldiers declaring martial law as they progressed. Ford's theatre was taken and held by an armed force, and the proprietor and employees were all swept into prison, including Edward Spangler, a scene-shifter, who had been a menial attendant of Booth's. The superstitious notion prevailed that the inanimate edifice whose walls had suffered such a desecration was in some vague sense an accomplice; the Secretary swore that no dramatic performance should ever take place there again; and the suspicion was sedulously kept alive that the manager and the whole force of the company must have aided their favorite actor, or the crime could not have been so easily perpetrated and the assassin escaped. On the night of the fifteenth (Saturday) a locked room in the Kirkwood House, where Vice President Johnson was stopping, which had been engaged by George A. Atzerodt on the morning of the fourteenth, was broken open, and in the bed were found a bowie-knife and a revolver, and on the wall a coat (subsequently identified as Herold's), in which was found, among other articles, a bank book of Booth's. The room had not been otherwise occupied--Atzerodt, after taking possession of it, having mysteriously disappeared. On the morning of the seventeenth (Monday), at Baltimore, Michael O'Laughlin was arrested as a friend of Booth's, and it was soon thought that he "_resembled extremely_" a certain suspicious stranger who, it was remembered, had been seen prowling about Secretary Stanton's residence on the night of the 13th, when the serenade took place, and there doing such an unusual act as inquiring for, and looking at, General Grant. On the same day at Fort Monroe, Samuel Arnold was arrested, whose letter signed "Sam" had been found on Saturday night among the effects of Booth. On the night of the seventeenth, also, the house of Mrs. Surratt with all its contents was taken possession of by the soldiers, and Mrs. Surratt, her daughter, and all the other inmates were taken into custody. While the ladies were making preparations for their departure to prison, a man disguised as a laborer, with a sleeve of his knit undershirt drawn over his head, a pick-axe on his shoulder, and covered with mud, came to the door with the story that he was to dig a drain for Mrs. Surratt in the morning; and that lady asseverating that she had never seen the man before, he was swept with the rest to headquarters, and there, to the astonishment of everybody, turned out to be the desperate assailant of the Sewards. During these few days Washington was like a city of the dead. The streets were hung with crape. The obsequies, which started on its march across the continent the colossal funeral procession in which the whole people were mourners, were being celebrated with the most solemn pomp. No business was done except at Military Headquarters. Men hardly dared talk of the calamity of the nation. Everywhere soldiers and police were on the alert to seize any supposed or denounced sympathizer with the South. Mysterious and prophetic papers turned up at the White House and the War Department. Women whispered terrible stories of what they knew about the "Great Crime." To be able to give evidence was to be envied as a hero. And still the arch-devil of the plot could not be found! The lower parts of Maryland seethed like a boiling pot, and the prisons of Washington were choking with the "suspect" from that quarter. Lloyd--the drunken landlord of the tavern at Surrattsville, ten miles from Washington, at which Booth and Herold had stopped at midnight of the fatal Friday for carbines and whisky--after two days of stubborn denial was at last frightened into confession; and Doctor Mudd, who had set Booth's leg Saturday morning thirty miles from Washington, was in close confinement. All the intimate friends of the actor in Washington, in Baltimore, in Philadelphia, in New York and even in Montreal were in the clutches of the government. Surratt himself--the pursuit of whom, guided by Weichman, his former college-chum, his room-mate, and the favorite guest of his mother, had been instant and thorough--it was ascertained, had left Canada on the 12th of April and was back again on the 18th. But where was Booth? where Herold? where Atzerodt? On the 20th, the Secretary of War applied the proper stimulus by issuing a proclamation to the following effect: "$50,000 reward will be paid by this department for the apprehension of the murderer of our late beloved President. "$25,000 reward for the apprehension of John H. Surratt, one of Booth's accomplices. "$25,000 reward for the apprehension of Herold, another of Booth's accomplices. "Liberal rewards will be paid for any information that shall conduce to the arrest of either of the above-named criminals or their accomplices. "All persons harboring or secreting the said persons, or either of them, or aiding or assisting in their concealment or escape, will be treated as accomplices in the murder of the President and the attempted assassination of the Secretary of State, and shall be subject to trial before a military commission and the punishment of death." What is noteworthy about this document is that Stanton had already made up his mind as to the guilt of the persons named as accomplices of Booth; that he needed only their arrest, being assured of their consequent conviction; and that he had already determined that their trial and the trial of all persons connected with the great crime, however remotely, should be had before a military tribunal, and that the punishment to follow conviction should be death. At four o'clock in the morning of the very day this proclamation was issued, Atzerodt was apprehended at the house of his cousin in Montgomery County, Md., about twenty-two miles northward of Washington, by a detail of soldiers, to whom, by the way, notwithstanding the arrest preceded the proclamation, $25,000 reward was subsequently paid. With Atzerodt his cousin, Richter, was taken also. O'Laughlin, Payne, Arnold, Atzerodt and Richter, as they were severally arrested, were put into the custody of the Navy Department and confined on board the Monitor _Saugus_, which on the morning of Saturday, when the President died, had been ordered to swing out into the middle of the river opposite the Navy Yard, prepared to receive at any hour, day or night, dead or alive, the arch-assassin. Each of these prisoners was loaded with double irons and kept under a strong guard. On the 23d, Atzerodt, by order of the Secretary of War, was transferred to the Monitor _Montauk_, to separate him from his cousin, and Payne, in addition to his double irons, had a ball and chain fastened to each ankle by the direction of the same officer. On the next day Spangler, who had hitherto been confined in the Old Capitol Prison, was transferred to one of the Monitors and presumably subjected to the same treatment. On the same day the following order was issued: "The Secretary of War requests that the prisoners on board iron-clads belonging to this department for better security against conversation shall have a canvass bag put over the head of each and tied around the neck, with a hole for proper breathing and eating, but not seeing, and that Payne be secured to prevent self-destruction." All of which was accordingly done. And still no Booth! It seems as though the Secretary were mad enough to imagine that he could wring from Providence the arrest of the principal assassin by heaping tortures on his supposed accomplices. At length, in the afternoon of the 26th--Wednesday, the second week after the assassination--Col. Conger arrived with the news of the death of Booth and the capture of Herold on the early morning of that day; bringing with him the diary and other articles found on the person of Booth, which were delivered to Secretary Stanton at his private residence. In the dead of the ensuing night, the body of Booth, sewed up in an old army blanket, arrived, attended by the dog-like Herold; and the living and the dead were immediately transferred to the _Montauk_. Herold was double ironed, balled and chained and hooded. The body of Booth was identified; an autopsy held; the shattered bone of his neck taken out for preservation as a relic (it now hangs from the ceiling of the Medical Museum into which Ford's Theatre was converted, or did before the collapse); and then, with the utmost secrecy and with all the mystery which could be fabricated, under the direction of Col. Baker, the corpse was hurriedly taken from the vessel into a small boat, rowed to the Arsenal grounds, and buried in a grave dug in a large cellar-like apartment on the ground floor of the Old Penitentiary; the door was locked, the key removed and delivered into the hands of Secretary Stanton. No effort was spared to conceal the time, place and circumstances of the burial. False stories were set afloat by Baker in furtherance of such purpose. Stanton seemed to fear an escape or rescue of the dead man's body; and vowed that no rebel or no rebel sympathizer should have a chance to glory over the corpse, or a fragment of the corpse, of the murderer of Lincoln. CHAPTER II. THE BUREAU OF MILITARY (IN)JUSTICE. Mingling with the varied emotions evoked by the capture and death of the chief criminal was a feeling of deepest exasperation that the foul assassin should after all have eluded the ignominious penalty of his crime. Thence arose a savage disposition on the part of the governing powers to wreak this baffled vengeance first, on his inanimate body; secondly, on the lives of his associates held so securely in such close custody; and thirdly, on all those in high places who might be presumed to sympathize with his deeds. It was too horrible to imagine that the ghost of the martyred Lincoln should walk unavenged. So stupendous a calamity must of necessity be the outcome of as stupendous a conspiracy, and must in the very justice of things be followed by as stupendous a retribution. A sacrifice must be offered and the victims must be forthcoming. To employ the parallel subsequently drawn by General Ewing on the trial of the conspirators: On the funeral pyre of Patroclus must be immolated the twelve Trojan captives. They were sure of Payne and of Herold. They held Arnold and O'Laughlin and Atzerodt and Spangler and Doctor Mudd--all the supposed satellites of Booth, save one. John H. Surratt could not be found. Officers in company with Weichman and Holahan, boarders at his mother's house, who in the terror of the moment had given themselves up on the morning of the fifteenth, traced him to Canada, as has already been noticed, but had there lost track of him. They had returned disappointed; and now Weichman and Holahan were in solitary confinement. Notwithstanding the large rewards out for his capture, as to him alone the all-powerful government seemed to be baffled. One consolation there was, however--if they could not find the son, they held the mother as a hostage for him, and they clung to the cruel expectation that by putting her to the torture of a trial and a sentence, they might force the son from his hiding place. In the meanwhile the Bureau of Military Justice, presided over by Judge-Advocate-General Holt, had been unceasingly at work. General Baker with his posse of soldiers and detectives scoured the country far and wide for suspected persons and witnesses, hauled them to Washington and shut them up in the prisons. Then the Bureau of Military Justice took them in hand, and, when necessary, by promises, hopes of reward and threats of punishment, squeezed out of them the testimony they wanted. Colonel Henry L. Burnett, who had become an expert in such proceedings from having recently conducted the trial of Milligan before a military tribunal at Indianapolis, was brought on to help Judge Holt in the great and good work. In the words of General Ewing in his plea for Dr. Mudd: "The very frenzy of madness ruled the hour. Reason was swallowed up in patriotic passion, and a feverish and intense excitement prevailed most unfavorable to a calm, correct hearing and faithful repetition of what was said, especially by the suspected. Again, and again, and again the accused was catechised by detectives, each of whom was vieing with the other as to which should make the most important discoveries, and each making the examination with a preconceived opinion of guilt, and with an eager desire, if not determination, to find in what might be said the proofs of guilt. Again, the witnesses testified under the strong stimulus of a promised reward for information leading to arrest and followed by convictions." The Bureau conducted the investigation on the preconceived theory, adopted, as we have seen, by the Secretary of War, that the Confederate Government was the source of the conspiracy; and, by lavishing promises and rewards, it had no difficulty in finding witnesses who professed themselves to have been spies on the rebel agents in Canada and who were ready to implicate them and through them the President of the defunct Confederacy in the assassination. Richard Montgomery and Sanford Conover, who had been in personal communication with these agents during the past year, were eagerly taken into the employ of the Bureau, and made frequent trips to Canada, to return every time laden with fresh proofs of the complicity of the rebels. To illustrate how the Bureau of Military Justice dealt with witnesses who happened to have been connected more or less closely with Booth, and who were either reluctant or unable to make satisfactory disclosures, here are two extracts from the evidence given on the trial of John H. Surratt in 1867. The first is from the testimony of Lloyd, the besotted keeper of the Surratt tavern: "I was first examined at Bryantown by Colonel Wells. I was next examined by two different persons at the Carroll prison. I did not know either of their names. One was a military officer. I think some of the prisoners described him as Colonel Foster. I saw a man at the conspiracy trial as one of the Judges who looked very much like him. * * * I told him I had made a fuller statement to Colonel Wells than I could possibly do to him under the circumstances, while things were fresh in my memory. His reply was that it was not full enough, and then commenced questioning me whether I had ever heard any person say that something wonderful or something terrible was going to take place. I told him I had never heard anyone say so. Said he I have seen it in the newspapers. "He jumps up very quick off his seat, as if very mad, and asked me if I knew what I was guilty of. I told him, under the circumstances I did not. He said you are guilty as an accessory to a crime the punishment of which is death. With that I went up stairs to my room." The next is from the testimony of Lewis J. Carland, to whom Weichman confessed his remorse after the execution of Mrs. Surratt: "He [Weichman] said it would have been very different with Mrs. Surratt if he had been let alone; that a statement had been prepared for him, that it was written out for him, and that he was threatened with prosecution as one of the conspirators if he did not swear to it. He said that a detective had been put into Carroll prison with him, and that this man had written out a statement which he said he had made in his sleep, and that he had to swear to that statement." Let us add another; it is so short and yet so suggestive. It is from the testimony of James J. Gifford, who was a witness for the prosecution on both trials. "Q.--Do you know Mr. Weichman? "A.--I have seen him. "Q.--Were you in Carroll prison with him? "A.--Yes, sir. "Q.--Did he say in your presence that an officer of the government had told him that unless he testified to more than he had already stated they would hang him too? "A.--I heard the officer tell him so." After a fortnight of such wholesale processes of arrest, imprisonment, inquisition, reward and intimidation, the Bureau of Military Justice announced itself ready to prove the charges it had formulated. Thereupon two proclamations were issued by President Johnson. One, dated May the first, after stating that the Attorney General had given his opinion "that all persons implicated in the murder of the late President, Abraham Lincoln, and the attempted assassination of the Hon. William H. Seward, Secretary of State, and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City, and their aiders and abettors, are subject to the jurisdiction of and legally triable before a Military Commission," ordered 1st, "that the Assistant Adjutant-General (W. A. Nichols) detail nine competent military officers to serve as a Commission for the trial of said parties, and that the Judge-Advocate-General proceed to prefer charges against said parties for their alleged offences, and bring them to trial before said Military Commission." 2d, "that Brevet Major-General Hartranft be assigned to duty as Special Provost-Marshal-General for the purpose of said trial and attendance upon said Commission, and the execution of its mandates." The other proclamation, dated May 2nd, after reciting that "it appears from evidence in the Bureau of Military Justice, that the atrocious murder of the late President, Abraham Lincoln, and the attempted assassination of the Hon. William H. Seward, Secretary of State, were incited, concerted, and procured by and between Jefferson Davis, late of Richmond, Va., and Jacob Thompson, Clement C. Clay, Beverly Tucker, George N. Sanders, William C. Cleary, and other rebels and traitors against the Government of the United States, harbored in Canada," offered the following rewards: "$100,000 for the arrest of Jefferson Davis. "$25,000 for the arrest of Clement C. Clay. "$25,000 for the arrest of Jacob Thompson, late of Mississippi. "$25,000 for the arrest of Geo. N. Saunders. "$25,000 for the arrest of Beverly Tucker. "$10,000 for the arrest of Wm. C. Cleary, late clerk of Clement C. Clay. "The Provost-Marshal-General of the United States is directed to cause a description of said persons, with notice of the above rewards, to be published." At this date the President of the defunct Confederacy was a fugitive, without an army; and bands of U. S. Cavalry were already on the scout to intercept his flight. Military Justice, however, was too impatient to await the arrest of the prime object of its sword; and in obedience to the first proclamation proceeded without delay to organize a court to try the prisoners selected from the multitude undergoing confinement as the fittest victims to appease the shade of the murdered President. Over some of the "suspect" the Judge-Advocates for a time vacillated, whether to include them in the indictment or to use them as witnesses; but, after a season of rigid examinations, renewed and revised, they at last concluded that such persons would be more available in the latter capacity. On the third day of May the funeral car, which, leaving Washington on the twenty-first of April, had borne the body of the lamented Lincoln through State after State, arrived at last at Springfield; and on the following day the cherished remains were there consigned to the tomb. On the sixth, by special order of the Adjutant-General, a Military Commission was appointed to meet at Washington on Monday, the eighth day of May, or as soon thereafter as practicable, "for the trial of David E. Herold, George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, Samuel Arnold, Mary E. Surratt, Samuel A. Mudd and such other prisoners as may be brought before it, implicated in the murder of the late President and in the attempted assassination of the Secretary of State and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City, and their aiders and abettors. By order of the President of the United States." And so, all things being in readiness, let the curtain rise. PART I. THE MURDER. CHAPTER I. THE OPENING OF THE COURT. On the ninth day of May the Commission met but only to adjourn that the prisoners might employ counsel. On the same day, two of its members, General Cyrus B. Comstock and Colonel Horace Porter--names to be noted for what may have been a heroic refusal--were relieved from the duty of sitting upon the Commission, and two other officers substituted in their stead. So that Tuesday, May 10th, 1865--twenty-six days after the assassination, a period much too short for the intense excitement and wild desire for vengeance to subside--may properly be designated as the first session of the Court. On the early morning of that day--before daylight--Jefferson Davis had been captured, and was immediately conducted, not to Washington to stand trial for his alleged complicity in the assassination, but to Fort Monroe. On the next day Clement C. Clay, also, surrendered himself to the United States authorities, and was sent, not to Washington to meet the awful charge formulated against him, but to the same military fortress. The room in which the Commission met was in the northeast corner of the third story of the Old Penitentiary; a building standing in the U. S. Arsenal Grounds at the junction of the Potomac with the Eastern Branch, in a room on the ground floor of which the body of Booth had been secretly buried. Its windows were guarded by iron gratings, and it communicated with that part of the prison where the accused were now confined, by a door in the western wall. The male prisoners had been removed some days before from the Monitors to the Penitentiary, where Mrs. Surratt was already incarcerated, and each of them, including the lady, was now immured in a solitary cell under the surveillance of a special guard. Around a table near the eastern side of this room sat, resplendent in full uniform, the members of the Court. At the head as President was Major-General David Hunter--a stern, white-headed soldier, sixty-three years old; a fierce radical; the first officer to organize the slaves into battalions of war; the warm personal friend of Lincoln, at the head of whose corpse he had grimly sat as it rested from place to place on the triumphal progress to its burial, and from whose open grave he had hurried, in no very judicial humor to say the least, to take his seat among the Judges of the accused assassins. On his right sat Major-General Lew Wallace, a lawyer by profession; afterwards the President of the Court-Martial which tried and hung Henry Wirz; but now, by a sardonic freak of destiny, known to all the world as the tender teller of "Ben Hur, a Tale of the Christ." To the right of General Wallace sat Brevet Brigadier-General James A. Ekin and Brevet Colonel Charles A. Tompkins; about whom the only thing remarkable is that they had stepped into the places of the two relieved officers, Colonel Tompkins being the only regular army officer on the Board. On the left of General Hunter sat, first, Brevet Major-General August V. Kautz, a native of Germany; next, Brigadier-General Robert S. Foster, who may or may not have been the "Colonel Foster" alluded to in the testimony of Lloyd quoted above, as threatening the witness and as afterwards being seen by him on the Commission--the presence of an officer, previously engaged by the Government in collecting testimony against the accused, as one of the judges to try him not being considered a violation of Military Justice. Next sat Brigadier-General Thomas Mealey Harris, a West Virginian, and the author of a book entitled "Calvinism Vindicated;" next, Brigadier-General Albion P. Howe, and last, Lieutenant-Colonel David R. Clendenin. Not one of these nine men could have withstood the challenge which the common law mercifully puts into the hands of the most abandoned culprit. They had come together with one determined and unchangeable purpose--to avenge the foul murder of their beloved Commander-in-Chief. They dreamt not of acquittal. They were, necessarily, from the very nature of their task, _organized to convict_. The accused were asked, it is true, whether they had any objections to any member of the Court. But this was the emptiest of forms, as bias is no cause of challenge in military procedure, and peremptory challenges are unknown. Moreover, it was nothing but a cruel mockery to offer to that trembling group of prisoners an opportunity, which, if any one of them had the temerity to embrace, could only have resulted in barbing with the sting of personal insult the hostile predisposition of the judges. At the foot of the table around which the Court sat--the table standing parallel with the north side of the room--there was another, around which were gathered the three prosecuting officers, who, according to military procedure, were also members of the Commission. First, was Brigadier-General Joseph Holt, the Judge-Advocate of the U. S. Army, and the Recorder of the Commission. During his past military career he had distinguished himself on many a bloody court-martial. Second, designated by General Holt as First Assistant or Special Judge-Advocate, was Hon. John A. Bingham, of Ohio--long a Representative in Congress, then for a short interval a Military Judge-Advocate, now a Representative in Congress again, and to become in the strange vicissitudes of the near future, one of the managers of the impeachment of President Johnson, whom he now cannot praise too highly. He was one of those fierce and fiery western criminal lawyers, gifted with that sort of vociferous oratory which tells upon jurors and on the stump, by nature and training able to see but one side to a case and consequently merciless to his victims. His special function was to cross-examine and brow-beat the witnesses for the defense, a branch of his profession in which he was proudly proficient, and, above all, by pathetic appeals to their patriotism and loyalty, and by measureless denunciations of the murder of their Commander-in-Chief and of the Rebellion, to keep up at a white heat the already burning passions of the officers composing the tribunal. Next to him came Colonel Henry L. Burnett; brought from Indiana where he had won recent laurels in conducting the trial of Milligan for treason before a Military Commission--laurels, alas! soon to be blasted by the decision of the U. S. Supreme Court pronouncing that and all other Military Commissions for the trial of citizens in places where the civil courts are open illegal, and setting free the man this zealous public servant had been instrumental in condemning to death. In the centre of the room was a witness-stand facing the Court. To the left of the witness-stand a table for the official reporters. Along the western side and directly opposite the Court was a platform about a foot high and four feet broad, with a strong railing in front of it. This was the prisoners' dock. The platform was divided near the left hand or southern corner by the doorway which led to the cells. In front of the southern end of the dock and behind the witness-stand was the table of the prisoners' counsel. At the appointed hour the door in the western side opens and an impressive and mournful procession appears. Six soldiers armed to the teeth are interspersed among seven male prisoners and one woman. First walks Samuel Arnold, the young Baltimorean, who is to sit at the extreme right (_i. e._, of the spectators), followed close by his armed guard; next, Dr. Samuel T. Mudd and a soldier; next, Edward Spangler and a soldier; next, Michael O'Laughlin, another Baltimorean, and his soldier; next, George B. Atzerodt and a soldier; next, Lewis Payne, a tall gladiator, though only twenty years old, and his soldier; and then David E. Herold, looking like an insignificant boy, who is to sit next the door. As they enter, their fetters clanking at every step, they turn to their left and take seats on the platform in the order named, the six soldiers being sandwiched here and there between two of the men. Each of these prisoners, during the entire trial, was loaded down with irons made as massive and uncomfortable as possible. Their wrists were bound with the heaviest hand-cuffs, connected by bars of iron ten inches long (with the exception of Dr. Mudd, whose hand-cuffs were connected by a chain), so that they could not join their hands. Their legs were weighed down by shackles joined by chains made short enough to hamper their walk. In addition to these fetters, common to all, Payne and Atzerodt had, attached by chains to their legs, huge iron balls, which their guards had to lift and carry after them whenever they entered or left the Court room. Last, there emerges from the dungeon-like darkness of the doorway the single female prisoner, Mary E. Surratt. She, alone, turns to her right and, consequently, when she is seated has the left hand corner of the platform to herself. But she is separated from her companions in misery by more than the narrow passage-way that divides the dock; for she is a lady of fair social position, of unblemished character and of exemplary piety, and, besides, she is a mother, a widow, and, in that room amongst all those soldiers, lawyers, guards, judges and prisoners, the sole representative of her sex. Her womanhood is her peculiar weakness, yet still her only shield. Is she too ironed? The unanimous testimony of eye-witnesses published at the time of the trial is, that, though not hand-cuffed, she was bound with iron "anklets" on her feet. And this detail, thus universally proclaimed in the Northern Press and by loyal writers, was mentioned not as conveying the slightest hint of reprobation, but as constituting, like the case of the male prisoners, a part of the appropriate treatment by the military of a person suffering under such a charge. And, moreover, no contemporaneous denial of this widespread circumstance was anywhere made, either by Provost-Marshal, Counsel, Judge-Advocate or member of the Court. It passed unchallenged into history, like many another deed of shame, over which it is a wonder that any man could glory, but which characterized that period of frenzy. Eight years after, during the bitter controversy between Andrew Johnson and Joseph Holt over the recommendation of mercy to Mrs. Surratt, General Hartranft, the former Special Provost-Marshal in charge of the prisoners, first broke silence and, coming to the aid of the sorely-tried Ex-Judge-Advocate, sent him a vehement categorical denial that Mrs. Surratt was ever manacled at any time, or that there was ever a thought of manacling her in any one's mind. Now, what force should be given to such a denial by so distinguished an officer, so long delayed and in the face of such universal contemporaneous affirmation? No one knows how close and exclusive the charge of the prisoners by the special Provost-Marshal was, nor how liable to interruption, interference and supersession by the omnipotent Bureau of Military Justice, or by the maddened Secretary of War and his obsequious henchmen. At the time the naked assertion was made, to heap indignities upon the head of the only woman in the whole country whom the soldiery took for granted was the one female fiend who helped to shed the blood of the martyred President, was so consonant with the angry feeling, in military circles, that an officer, having only a general superintendence over the custody and treatment of what was called "a band of fiends," would be very likely to overlook such a small matter as that the she-assassin was not exempted, in one detail, from the contumelies and cruelties it was thought patriotic to pile upon her co-conspirators. The only wonder ought to be that they relieved her from the hand-cuffs. They appear to have discriminated in the case of Dr. Mudd also, substituting a chain for an inflexible bar so that he for one could move his hands. There may have been some unmentioned physical reasons for both of these alleviations, but we may rest assured that neither sex, in the one case, nor profession in the other, was among them. General Hartranft (or any other General) never denied, or thought it necessary to deny, that the seven male prisoners sat through the seven weeks of the trial, loaded, nay tortured, with irons. And there is no doubt that this unspeakable outrage, if thought of at all at the trial by the soldiery--high or low--so far from being thought of as a matter of reprobation, was a subject of grim merriment or stern congratulation. Eight years, however, passed away--eight years, in which a fund of indignation at such brutality, above all to a woman, had been silently accumulating, until at length to a soldier, whose beclouding passions of the moment had in the meantime cooled down, its weight made every loop-hole of escape an entrance for the very breath of life. The entire atmosphere had changed, and denials became the order of the day. Memory is a most convenient faculty; and to forget what the lapse of years has at last stamped with infamy is easy, when the event passed at the time as a mere matter of course. Leaving these tardy repudiators of an iniquity, the responsibility for which in the day of its first publication they tacitly assumed with the utmost complacency, to settle the question with posterity;--we insist that the preference is open to writers upon the events of the year 1865 to rely upon the unprejudiced and unchallenged statements of eye-witnesses; and, therefore, we do here reaffirm that Mary E. Surratt walked into the court-room, and sat during her trial, with shackles upon her limbs. At this late day it is a most natural supposition that these nine stalwart military heroes, sitting comfortably around their table, arrayed in their bright uniforms, with their own arms and their own legs unfettered, must have felt at least a faint flush of mingled pity, shame and indignation, as they looked across that room at that ironed row of human beings. Culprits arraigned before them, guarded by armed soldiery, without arms themselves--why, in the name of justice, drag them into Court and force them to sit through a long trial, bound with iron, hand and foot? Was it to forestall a last possible effort of reckless and suicidal despair? These brave warriors could not have feared the naked arm of Payne, nor have indulged the childish apprehension that seven unarmed men and one unarmed woman might overpower six armed soldiers and nine gallant officers, and effect their escape from the third story of a prison guarded on all sides with bayonets and watched by detective police! And yet, so far as appears, no single member of the Court, to whom such a desecration of our common humanity was a daily sight for weeks, thought it deserving of notice, much less of protest. There is but one explanation of this moral insensibility, and that applies with the same force to the case of the woman as to those of the men. It is, that the accused were _already doomed_. For them no humiliation could be thought too deep, no indignity too vile, no hardship too severe, because their guilt was predetermined to be clear. And the members of the Military Commission, as they looked across the room at that sorry sight, saw nothing incongruous with justice, or even with the most chivalrous decorum, that the traitorous murderers of their beloved Commander-in-Chief should wear the shackles which were the proper precursors of the death of ignominy, they were resolved the outlaws should not escape. We, civilians, must ever humbly bear in mind that the rule of the common law, that every person accused of crime is presumed to be innocent until his guilt is established beyond a reasonable doubt--a rule the benignity of which is often sneered at by soldiers as giving occasion for lawyers' tricks and quibbles, and as an impediment to swift justice, is reversed in military courts, where every person accused of crime is presumed to be _guilty_ until he himself prove his innocence. After the prisoners had been seated, and the members of the Commission, the Judge-Advocates and the official reporters sworn in, the accused were severally arraigned. There was but one Charge against the whole eight. Carefully formulated by the three Judge-Advocates upon the lines of the theory adopted by the Secretary of War, and which Gen. Baker and the Bureau of Military Justice had been moving heaven and earth to establish, it was so contrived as to allege a crime of such unprecedented, far-reaching and profound heinousness as to be an adequate cause of such an unprecedented and profound calamity. The eight prisoners were jointly and severally charged with nothing less than having, in aid of the Rebellion, "_traitorously_" conspired, "together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, George N. Sanders, Beverley Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young and others unknown, to kill and murder" "Abraham Lincoln, late President of the United States and Commander-in-Chief of the Army and Navy thereof, Andrew Johnson, then Vice-President, Wm. H. Seward, Secretary of State, and Ulysses S. Grant, Lieutenant-General;" and of having, in pursuance of such "traitorous conspiracy," "together with John Wilkes Booth and John H. Surratt" "traitorously" murdered Abraham Lincoln, "traitorously" assaulted with intent to kill, William H. Seward, and lain in wait "traitorously" to murder Andrew Johnson and Ulysses S. Grant. On this elastic comprehensive Charge, in which treason and murder are vaguely commingled, every one of the men, and Mary E. Surratt, were arraigned, plead not guilty, and were put upon trial. There is no doubt, by the way, that the Secretary of War would have been included as one of the contemplated victims, had not Edwin M. Stanton borne so prominent a part in the prosecution; and it was for this reason, and not because of any change in the evidence, that General Grant stood alone, as the mark of O'Laughlin. To this single Charge there was, also, but a single Specification. This document alleged that the design of all these traitorous conspirators was, to deprive the Army and Navy of their Commander-in-Chief and the armies of their Commander; to prevent a lawful election of President and Vice-President; and by such means to aid and comfort the Rebellion and overthrow the Constitution and laws. It then alleged the killing of Abraham Lincoln by Booth in the prosecution of the conspiracy, and charged the murder to be the act of the prisoners, as well as of Booth and John H. Surratt. It then alleged that Spangler, in furtherance of the conspiracy, aided Booth in obtaining entrance to the box of the theatre, in barring the door of the theatre box, and in effecting his escape. Then, that Herold, in furtherance of the conspiracy, aided and abetted Booth in the murder, and in effecting his escape. Then, that Payne, in like furtherance, made the murderous assault on Seward and also on his two sons and two attendants. Then, that Atzerodt, in like furtherance, at the same hour of the night, lay in wait for Andrew Johnson with intent to kill him. Then, that Michael O'Laughlin, in like furtherance, on the nights of the 13th and 14th of April, lay in wait for General Grant with like intent. Then, that Samuel Arnold, in prosecution of the conspiracy, "did, on or before the 6th day of March, 1865, and on divers other days and times between that day and the 15th day of April, 1865, combine, conspire with and counsel, abet, comfort and support" Booth, Payne, Atzerodt, O'Laughlin and their confederates. Then, "that, in prosecution of the conspiracy, Mary E. Surratt, on or before the 6th of March, 1865, and on divers other days and times between that day and the 20th of April, 1865, received, entertained, harbored and concealed, aided and assisted" Booth, Herold, Payne, John H. Surratt, O'Laughlin, Atzerodt, Arnold and their confederates, "with the knowledge of the murderous and traitorous conspiracy aforesaid, and with intent to aid, abet and assist them in the execution thereof, and in escaping from justice." And, lastly, that in prosecution of the conspiracy Samuel A. Mudd did from on or before the 6th day of March, to the 20th of April "advise, encourage, receive, entertain, harbor and conceal, aid and assist" Booth, Herold, Payne, John H. Surratt, O'Laughlin, Atzerodt, Mary E. Surratt, Arnold and their confederates, in its execution and their escape. After the prisoners, who as yet had no counsel, had pleaded not guilty to the Charge and Specification, the Court adopted rules of proceeding--one of which was that the sessions of the Court should be secret, and no one but the sworn officers and the counsel for the prisoners, also sworn to secrecy, should be admitted, except by permit of the President of the Commission; and that only such portions of the testimony as the Judge-Advocate should designate should be made public. On the next day (Thursday, May 11th), Mr. Thomas Ewing, Jr. and Mr. Frederick Stone appeared as counsel for Dr. Mudd, and Mr. Frederick A. Aiken and Mr. John W. Clampitt for Mrs. Surratt; and on the succeeding day (12th), Mr. Frederick Stone appeared for Herold "at the earnest request of his widowed mother and estimable sisters;" General Ewing for Arnold (and on Monday, the 15th, for Spangler); Mr. Walter S. Cox for O'Laughlin, and Mr. William E. Doster for Payne and Atzerodt. By the rules of the Commission no counsel could appear for the prisoners unless he took the "iron-clad oath" or filed evidence of having taken it. So supersensitive was the loyalty of the Court that it could not brook the presence of a "sympathizer with the South," even in such a confidential relation as counsel for accused conspirators in aid of the Rebellion. The demeanor of the Court towards the counsel for the defense, reflecting as in a mirror the humor of the Judge-Advocates, was highly characteristic. Sometimes they were treated with haughty indifference, sometimes with ironical condescension, often with contumely, generally with contempt. Their objections were invariably overruled, unless acceded to by the Judge-Advocate. The Commission could not conceal its secret opinion that they were engaged in a disreputable and disloyal employment. This statement must be somewhat qualified, however, so far as it relates to General Ewing. He was, or had been recently, of equal rank in the army of the Union with the members of the Court. He was a brother-in-law of General Sherman, and he had acquired a high reputation for gallantry and skill, as well as loyalty, during the war. That such a distinguished fellow-soldier should appear to defend the fiendish murderers of their beloved Commander-in-Chief--outlaws they were detailed as a Court to hang--evidently perplexed and disconcerted these military Judges and tended in some degree to curb the over-bearing insolence of the Special Judge-Advocate. Thus, this able lawyer and gallant officer and noble man was enabled to be "the leading spirit of the defense;" and, as we shall see, he wrought the miracle of plucking from the deadly clutches of the Judge-Advocates the lives of every one of the men he defended. But this instance was a most notable exception. As a rule, even the silent presence of the counsel for the accused jarred upon the feelings of the Court, and their vocal interference provoked, at intervals, its outspoken animadversion. A trifling incident will serve to illustrate. The witnesses, while giving their testimony, were required to face the Court, so that they necessarily turned their backs on the counsel for the prisoners who were placed some distance behind the witness-stand. These counsel were also forced to cross-examine the witnesses for the prosecution, and interrogate their own, without seeing their faces; and as often as a witness in instinctive obedience to the dictates of good manners would turn round to answer a question, the President of the Court would check him by a "sharp reprimand" and the stern admonition: "Face the Court!" The confusion of a witness, especially for the defense, when thundered at in this way by General Hunter, and the reiterated humiliation of counsel implied in the order, seem to have only called forth the wonder that witnesses "would persist in turning towards the prisoners' counsel!" Clearly these lawyers were an unmeaning, an impeding, an offensive, though unavoidable, superfluity. CHAPTER II. ANIMUS OF THE JUDGES. On Saturday, the 13th of May, an incident occurred which throws much light upon the judicial temper of the Court at the very beginning of the trial. On that day Reverdy Johnson appeared as counsel for Mrs. Surratt. Admitted to the bar in 1815, Senator of the United States as far back as 1845, Attorney-General of the United States as long ago as 1849, and holding the position of Senator of the United States again at that very moment; having taken the constitutional oath in all the Courts including the Supreme Court of the United States at whose bar he was one of the most eminent advocates; three years after this time to be Minister Plenipotentiary to England; as he stood there, venerable both in years and in honors, appearing at great personal and professional sacrifice, gratuitously, for a woman in peril of her life, one would have thought him secure at least from insult. Yet no sooner did he announce his intention, if the Court would permit him at any time to attend to his imperative duties elsewhere, to act as counsel, than the President of the Commission read aloud a note he had received from one of his colleagues objecting "to the admission of Reverdy Johnson as a counsel before this Court on the ground that he does not recognize the moral obligation of an oath that is designed as a test of loyalty;" and, in support of the objection, referring to Mr. Johnson's letter to the people of Maryland pending the adoption of the new constitution of 1864. The following colloquy then took place: "Mr. Johnson.--May I ask who the member of the Court is that makes that objection? "The President.--Yes, sir, it is General Harris, and, if he had not made it, I should have made it myself. "Mr. Johnson.--I do not object to it at all. The Court will decide if I am to be tried. "The President.--The Court will be cleared. "Mr. Johnson.--I hope I shall be heard. "General Ekin.--I think it can be decided without clearing the Court. "General Wallace.--I move that Mr. Johnson be heard. "The President and others.--Certainly. "Mr. Johnson.--Is the opinion here to which the objection refers? "The President.--I think it is not." It was discovered, farther on, that General Harris by his own admissions had not even seen the opinion since he had read it a year ago, and that his objection, involving so grave an attack upon the moral character of so distinguished a man, was based upon a mere recollection of its contents after that lapse of time. Naturally, the gray-haired statesman and lawyer was indignant at this premeditated insult. In his address to the Court he repudiated with scorn the interpretation put upon his letter by his accuser. He explained the circumstances under which the opinion was delivered; that the Maryland Convention had prescribed an oath to the voter which they had no right to exact; "and all that the opinion said, or was intended to say, was, that to take the oath voluntarily was not a craven submission to usurped authority, but was necessary in order to enable the citizen to protect his rights under the then constitution; and that there was no moral harm in taking an oath which the Convention had no authority to impose." Among other things he said: "There is no member of this Court, including the President, and the member that objects, who recognizes the obligation of an oath more absolutely than I do; and there is nothing in my life, from its commencement to the present time, which would induce me for a moment to avoid a comparison in all moral respects between myself and any member of this Court. "If such an objection was made in the Senate of the United States, where I am known, I forbear to say how it would be treated. "I have lived too long, gone through too many trials, rendered the country such services as my abilities enabled me, and the confidence of the people in whose midst I am has given me the opportunity, to tolerate for a moment--come from whom it may--such an aspersion upon my moral character. I am glad it is made now, when I have arrived at that period of life when it would be unfit to notice it in any other way. "I am here at the instance of that lady (pointing to Mrs. Surratt) whom I never saw until yesterday, and never heard of, she being a Maryland lady; and thinking that I could be of service to her, and protesting as she has done her innocence to me--of the facts I know nothing--because I deemed it right, I deemed it due to the character of the profession to which I belong, and which is not inferior to the noble profession of which you are members, that she should not go undefended. I knew I was to do it voluntarily, without compensation; the law prohibits me from receiving compensation; but if it did not, understanding her condition, I should never have dreamed of refusing upon the ground of her inability to make compensation." General Harris, in reply, insisted that the remarks of Mr. Johnson, explanatory of the letter, corroborated his construction. "I understand him to say that the doctrine which he taught the people of his state was, that because the Convention had framed an oath, which was unconstitutional and illegal in his opinion, therefore it had no moral binding force, and that people might take it and then go and vote without any regard to the subject matter, of the oath." Mr. Johnson, interrupting, denied having said any such thing. General Hunter, thereupon, to help his colleague out, had the remarks read from the record. Mr. Johnson assenting to the correctness of the report, General Harris continued: "If that language does not justify my conclusion, I confess I am unable to understand the English language;" and then repeated his construction of the letter. After he had concluded, Mr. Johnson endeavored to show the author of "Calvinism Vindicated" that he did not understand the English language, by pointing out the distinction between stating "there was no harm in taking an oath, and telling the people of Maryland that there would be no harm in breaking it after it was taken." Again repelling the misconstruction attempted to be put upon his words, he proceeded to open a new line as follows: "But, as a legal question, it is something new to me that the objection, if it was well founded in fact is well founded in law. Who gives to the Court the jurisdiction to decide upon the moral character of the counsel who may appear before them? Who makes them the arbiters of the public morality and professional morality? What authority have they, under their commission, to rule me out, or to rule any other counsel out, upon the ground, above all, that he does not recognize the validity of an oath, even if they believed it?" General Harris, in rejoinder, stated that under the rules adopted by the Commission gentlemen appearing as counsel for the accused must either produce a certificate of having taken the oath of loyalty or take it before the Court, and that therefore the Court had a right to inquire whether counsel held such opinions as to be incompetent to take the oath. He then expressed his gladness "to give the gentleman the benefit of his disclaimer. It is satisfactory to me, but it is, I must insist, a tacit admission that there was some ground for the view upon which my objection was founded." Mr. Johnson closed this irritating discussion by saying: "The order under which you are assembled gives you no authority to refuse me admission because you have no authority to administer the oath to me. I have taken the oath in the Senate of the United States--the very oath that you are administering; I have taken it in the Circuit Court of the United States; I have taken it in the Supreme Court of the United States; and I am a practitioner in all the Courts of the United States in nearly all the States; and it would be a little singular if one who has a right to appear before the supreme judicial tribunal of the land, and who has a right to appear before one of the Legislative departments of the Government whose law creates armies, and creates judges and courts-martial, should not have a right to appear before a court-martial. I have said all that I proposed to say." The President of the Court, who had already made himself a party to this gross insult to a distinguished counsel--as if disappointed that the affair was about to end so smoothly--here burst out: "Mr. Johnson has made an intimation in regard to holding members of this Court personally responsible for their action. "Mr. Johnson.--I made no such intimation; did not intend it. "The President.--Then I shall say nothing more, sir. "Mr. Johnson.--I had no idea of it. I said I was too old to feel such things, if I even would. "The President.--I was going to say that I hoped the day had passed when freemen from the North were to be bullied and insulted by the humbug chivalry; and that, for my own part, I hold myself personally responsible for everything I do here. The Court will be cleared." On reopening, the Judge-Advocate read a paper from General Harris withdrawing his objection because of Mr. Johnson's disclaimer. General Wallace remarked that it must be known to every member of the Commission that Mr. Senator Johnson had taken the oath in the Senate of the United States. He therefore suggested that the requirement of his taking the oath be dispensed with. "The suggestion was acquiesced in, _nem. con._ "Mr. Johnson.--I appear, then, as counsel for Mrs. Surratt." In reviewing, at this distance of time, the foregoing scene, it is scarcely possible to realize the state of mind of a member of a tribunal claiming at least to be a court of justice, that could prompt such an onslaught--so shocking to the universal expectation of dignity and decorum, not to say absolute impartiality, in a judge. The interpretation put upon the letter of Reverdy Johnson to his constituents by Generals Harris and Hunter was the ordinary, ill-considered, second-hand version circulated by blind party hostility. This is clearly shown by the fact that the objection of General Harris was not founded upon a recent perusal of the letter, but upon his own recollection of the impression it made in his own party circles the year before. When, on the next Wednesday, General Harris, having in the meantime looked it up, presented a copy of the incriminated opinion, prefacing a request that it be made a part of the record by the sneering remark that "the Honorable gentleman ought to be very thankful to me for having made an occasion for him to disclaim before the country any obliquity of intention in writing that letter;" and, on the suggestion of General Hunter, the letter was read; every fair minded man ought to have been convinced that it was open to such a malign misconstruction only by an unscrupulous political enemy. But suppose for a moment that their own hasty and uncharitable construction was correct, what right--what color of justification--did that give these two military Judges to make that letter of the year before the pretext for a sudden attack in open court upon such a man as Reverdy Johnson, and on the consecrated occasion of his appearing as counsel for a lady on trial for her life? As to General Harris' argument that the requirement of an oath gave the Commission a right to inquire whether the written opinions of a counsel chosen for a defendant, previously delivered as a party leader, were of such a character as to render him incompetent to take an oath which the Supreme Court of the United States and the Senate of the United States had recognized his competency to take; why, it is charitable to suppose--and his subsequent claim would have been scouted as preposterous in any law-court in the world. With regard to General Hunter, his ferocious personal defiance, hurled from the very Bench, demonstrated in a flash his preëminent unfitness for any function that is judicial even in a military sense. It is manifest that this whole attack, whether concerted or not, was not made from any conscientious regard for the sanctity of an oath, nor from any sensitive fear that Reverdy Johnson, as an oath-breaker, might contaminate the tribunal; but it was either a mere empty ebullition of party spleen, or of party hatred towards a distinguished democrat, or it was made with a deliberate design to rob a poor woman of any probable advantage such eminent counsel might procure for her. And whether the latter terrible suspicion be well founded or not, true it is that this cruel result, notwithstanding the withdrawal of the objection, did not fail of full accomplishment. Reverdy Johnson, though suffered to appear as counsel, was virtually out of the case. He was present only at rare intervals during the trial, and sent in his final argument to be read by one of his juniors. The Court had put its brand upon him, and to any subsequent effort of his it turned an indifferent countenance and a deaf ear. He, forsooth, had "sympathized" with the Rebellion and that was enough! His appearance worked only harm to his client, if harm could be done to one whom the Court believed to have been also a sympathizer with rebellion, and who was already doomed to suffer in the place of her uncaptured son. Another incident, occurring after the testimony on behalf of the prisoners had begun, will illustrate still more clearly, if possible, the mental attitude of the Court. Among the witnesses sworn on the first day of the trial in secret session was one Von Steinacker, who, according to his own statement, had been in the Confederate Army, on the staff of Major-General Edward Johnson. He told the usual cock-and-bull story about seeing Booth in Virginia, in 1863, consorting with the rebel officers and concocting the assassination of Lincoln. At the time of his examination he was a prisoner of war, but after he had given his testimony he was discharged. The counsel for the defense knowing nothing of the witness did not cross-examine him at all. But, subsequently, they discovered that, after having once been convicted of an attempt to desert, he had at last succeeded in deserting the Union Army, and had entered the service of the Confederates; that he had been convicted of theft by a court-martial; and that his whole story was a fiction. Thereupon, as soon as possible, the counsel for Mrs. Surratt applied for the recall of the witness for cross-examination, so as to lay the basis for his contradiction and impeachment; and they embodied the facts they were ready to prove in a paper which was signed by Reverdy Johnson and the other counsel for Mrs. Surratt. This application seems to have strangely disturbed the Judge-Advocates and aroused the ire of the Court. The prosecuting officers professed to have no knowledge of the whereabouts of the witness; and General Wallace, moved from his wonted propriety, delivered himself as follows: "I, for my part, object to the appearance of any such paper on the record, and wish to say now that I understand distinctly and hold in supreme contempt, such practices as this. It is very discreditable to the parties concerned, to the attorneys, and, if permitted, in my judgment will be discreditable to the Court." Mr. Clampitt, with the most obsequious deference to the Court, deprecated any such reflection upon the conduct of counsel and alluded to their duty to their unfortunate clients. But this humble apology was declared not satisfactory to the General or to the Court; and the application was not only refused but the paper was not allowed to go upon the record. However, this summary method of keeping facts out of sight availed nothing. Mrs. Surratt's counsel had caused to be summoned as a witness, to contradict and impeach Von Steinacker, Edward Johnson, the very Major-General on whose staff the witness had sworn he had been. General Johnson, a distinguished officer in the Confederate Army, was taken prisoner in 1864 and had been in confinement since, as such, at Fort Warren. From thence he had been brought to attend before the Commission in obedience to a subpoena issued by the Court. On the 30th of May, he was called as a witness and appeared upon the stand to be sworn. As he stood there, in his faded uniform, bearing, doubtless, traces of the six months' imprisonment from which he had come at the command of the Court, facing the officers of the Army he had so often encountered, and with his back turned upon the woman on whose behalf he had been summoned; General Albion P. Howe deemed it his duty as an impartial judge to make the following attack upon him. After stating that it was well known that "the person" before the Court had been educated at the National Military Academy, and had since for many years held a commission in the U. S. Army, and had therefore taken the oath of allegiance, this gallant officer and upright judge proceeded: "In 1861, it became my duty as an officer to fire upon a rebel party, of which this man was a member, and that party fired upon, struck down, and killed loyal men that were in the service of the Government. I understand that he is brought here now as a witness to testify before this Court, and he comes here as a witness with his hands red with the blood of his loyal countrymen, shed by him or by his assistants, in violation of his solemn oath as a man and his faith as an officer. I submit to this Court that he stands in the eye of the law as an incompetent witness, because he is notoriously infamous. To offer as a witness a man who stands with this character, who has openly violated the obligations of his oath, and his faith as an officer, and to administer the oath to him and present his testimony, is but an insult to the Court and an outrage upon the administration of justice. I move that this man, Edward Johnson, be ejected from the Court as an incompetent witness on account of his notorious infamy on the grounds I have stated." General Ekin welcomed the opportunity to distinguish himself by seconding the motion and characterizing the appearance of the witness before the Commission, "with such a character" as "the height of impertinence!" In his haste to insult a fallen foe, he seems to have forgotten that the witness had no alternative but to come. The counsel for the prisoner humbly reminded the Court that the prosecution itself had sworn as its own witnesses men who had borne arms against the Government. The Judge-Advocate saw that the members of the Court had gone too far, and, after calling their attention to the familiar rule that the record of conviction in a judicial proceeding was the only basis of a total rejection of a witness, proceeded to provide a channel for the relief of the Court by suggesting that they could discredit the witness upon the ground stated, although they could not declare him incompetent to testify. The assertion is confidently made that in the whole annals of English criminal jurisprudence, full as they are of instances of the grossest unfairness to persons on trial, no such outrage upon the administration of justice as the foregoing can be found. To find its parallel you must go to the records of the French Revolutionary Tribunal. What are we to think of the complaint of a Union General, that "a rebel party" fired (first? No! but that when "it became his duty as an officer to fire upon a rebel party" the rebel party fired) back? What in Mars' name did this warrior expect? Would he have had kinder feelings towards his brave adversary if, in response to his own volley, the Confederate General had tamely laid down his arms, or played the coward and run? Nowadays, when the blue and the gray meet, charges of infamy are no longer heard, but the more deadly the past warfare, the greater the reciprocal respect. However, this unprovoked assault upon an unoffending officer, powerless to repel it, although it did not result in his ejection from the Court, effectually disposed of General Johnson as a witness. In answer to the questions of counsel he calmly gave his testimony, which exploded both Von-Steinacker and his story. Judge Bingham confined his cross-examination to eliciting the facts, that the witness had graduated from West Point, served in the U. S. Army until 1861, resigned, and joined the Confederate Army. The Court paid no attention to his direct testimony because he had fired upon Union men when they had fired upon him. The foregoing incidents conclusively show (were any such demonstration necessary) that a Board of nine military officers, fresh from service in the field in a bloody civil war, with all the fierce prejudices naturally bred by such a conflict hot within their bosoms, was the most unfit tribunal possible to administer impartial justice to eight persons charged with the murder of the Commander-in-Chief of the Army to which every member of the Court belonged, committed in aid of that Rebellion which during four years of hard fighting they had helped to suppress. CHAPTER III. THE CONDUCT OF THE TRIAL. The whole conduct of the trial emphasizes this conclusion. The Court, in weighing the evidence, adopted and acted upon the following proposition; that any witness, sworn for any of the prisoners, who had enlisted in the Confederate service, or had at any time expressed secession sentiments, or sympathized in any way with the South, was totally unworthy of credit. The Court went a step farther, and adopted the monstrous rule that participation in the Rebellion was evidence of participation in the assassination! This assertion now seems incredible, but it is fully attested by the record. At one stage of the trial, the Judge-Advocate asked a witness whether or not the prisoner Arnold had been in the military service of the rebels. General Ewing, his counsel, strenuously objected to this question on the ground, that it tended to prove the prisoner guilty of another crime than the one for which he was on trial, and thus to prejudice him in the eyes of the Court. Judge Holt remarked: "How kindred to each other are the crimes of treason against a nation and assassination of its chief magistrate. "The murder of the President * * * was preëminently a political assassination. "When, therefore, we shall show, on the part of the accused, acts of intense disloyalty, bearing arms in the field against the Government, we show with him the presence of an animus towards the Government which relieves this accusation of much, if not all, of its improbability." He asserted that such a course of proof was constantly resorted to in criminal courts; and when General Ewing challenged him (as well he might) to produce any authorities for such a position, he called upon the indomitable Bingham to state them. The Special Judge-Advocate responded, but he courteously, but unmistakably, shied away from his colleague's position and put the competency of the testimony upon another ground, viz.: that where the intent with which a thing was done is in issue, other acts of the prisoner which tend to prove the intent may be given in evidence. Here he was dealing with a familiar principle, and could cite any number of cases. He then proceeded to apply his good law. How? By claiming that conspiracy to murder having been laid in the charge, "_with the intent to aid the Rebellion_," that was the intent in issue here, and therefore to prove that a man was in the Rebellion went to prove that intent. At the request of General Ewing he read the allegation which ran "in aid of the Rebellion," and not "_with intent_ to aid," and the counsel pointed out that that was "an allegation of fact, and not of intent;" but the Judge insisted that it was in effect an allegation of intent--implied if not expressed. General Ewing then replied to his adversary's argument by showing that such an allegation was an unnecessary allegation. Conspiracy to murder and attempted murder were crimes done with _intent to kill_; and it was a matter of no moment in pleading to allege a general intent to aid the Rebellion. Courts had no right to violate the laws of evidence because the prosecution has seen fit to violate the laws of pleading. Judge Bingham contended (and cited authorities) for his familiar law, and then again in applying it triumphantly asked: "When he [Arnold] entered it (_i. e._, the Rebellion) he entered into it to aid it, did he not?" "Mr. Ewing. He did not enter into that to assassinate the President." At this, the Assistant Judge-Advocate rising to the decisive and culminating point of his argument gave utterance to the following proposition: "Yes: he entered into it to assassinate the President; and everybody else that entered into the Rebellion entered into it to assassinate everybody that represented the Government, that either followed the standard in the field, or represented its standard in the counsels. That is exactly why it is germane." And, thereupon, the Commission immediately overruled the objection. General Ewing told the exact truth, without a particle of rhetorical exaggeration, when, in the closing sentence of his argument against the jurisdiction of the Commission, he exclaimed: "Indeed, the position taken by the learned Assistant Judge-Advocate * * * goes to this--and even beyond it--namely, that participation in the Rebellion was participation in the assassination, and that the Rebellion itself formed part of the conspiracy for which these men are on trial here." Throughout the whole trial, the Commission took the law from the Judge-Advocates with the unquestioning docility usually manifested by a jury on such matters in civil courts. In truth, the main function of a Judge-Advocate appears to be to furnish law to the Court, as in civil courts the main function of the Judge is to furnish law to the jury. Consequently, his exposition of the law on any disputed point--whether relative to modes of procedure, or to the competency of testimony, or even to questions of jurisdiction--instead of standing on the same level with the antagonistic exposition of counsel for the accused as an argument to be weighed by the Court against its opposite in the equal scales of decision, was at all times authoritative, like the opinion of a judge overruling the contention of a lawyer. This, surely, was bad enough for a defendant; but, what was still more fatal to his chances of fair dealing, this habit of domination, acquiesced in by the Court on questions of law, had the effect (as is also seen in civil courts) of giving the same superior force to the expositions of questions of fact by the Judge-Advocate. And as this office combined the functions of a prosecuting officer with the functions of a judge, there could be no restraints of law, custom or personal delicacy, against the enforcement, with all the powers of reasoning and appeal at command, the conclusion of the Judge-Advocate upon the matters of fact. In a word, the judgment of the prosecuting officer--the retained counsel for the Government, the plaintiff in the action--ruled with absolute sway, both on the law and on the facts, the judgment of the Commission; the members of which, for that matter, were also in the pay of the Government. It may, therefore, be readily anticipated with how little impartiality the trial was conducted. Mrs. Surratt (as did the rest of the accused) plead to the jurisdiction of the Commission on the grounds (1) that she was not and had not been in the military service of the United States, and (2) that when the crimes charged were committed the civil courts were open in Washington; both of which allegations were admitted and were notoriously true. Whatever might be the indifference with which the rights of the men to a constitutional trial may have been viewed, it was so utterly incongruous with the spirit of military jurisprudence and so unprecedented in practice to try a woman by court-martial, that had Mrs. Surratt been alone before that Commission we venture to say those nine soldiers could not have brought themselves, or allowed the Judge-Advocate to bring them, to the overruling of her plea. As it was, however, the court-room was cleared of all save the members of the Commission and the three Judge-Advocates; and after a season of what is called "deliberation" (which meant the further enforcement of the opinion of the prosecuting officers upon the point under discussion, where necessary), the court reopened and "the Judge-Advocate announced that the pleas * * * had been overruled by the Commission." Mrs. Surratt (as did the other prisoners) then asked for a separate trial; a right guaranteed to her in all the civil courts of the vicinage. It was denied to her, without discussion, as a matter of course. And yet no one now can fail to recognize the grievous disadvantage under which this one woman labored, coupled in a single trial with such culprits as Payne who confessed his guilt, and Herold who was captured with Booth. In fact, the scheme of trial contrived by the Judge-Advocates on a scale comprehensive enough to embrace the prisoners, the Canadian exiles and the Confederate Cabinet, would not work on a trial of Mrs. Surratt alone. Of this pet plan they were highly proud and greatly enamoured. To it, everything--the rights of woman as well as man; considerations of equity and of common fairness--must be made to give way. To the maintenance of this scheme in its integrity, they had marshalled the witnesses, and they guided the Commission with a firm hand so that not a jot or tittle of its symmetry should be marred. This determined purpose is indicated by the starting-point they chose for the testimony. On Friday, the twelfth, the first witness was sworn, and his name was Richard Montgomery. His testimony, as well as that of the other witnesses sworn that day, was taken in secret session, and no portion of it was allowed to reach the public until long after the trial. It was all directed to establish the complicity of the rebel agents in Canada and through them the complicity of Jefferson Davis and other officers of the "Confederacy" in the assassination. In other words, this testimony was given to prove the guilt, not of the men much less of the woman on trial, but of the men included in the charge but not on trial; and whom, as it now appears, the United States never intended to try. To connect the defunct Confederacy in the person of its captive Chief with the murder of the President would throw a halo of romantic wickedness about the crime, and chime in with the prevalent hatred towards every human being in any way connected with the Rebellion. This class of testimony continued to be introduced every now and then during the trial--whenever most convenient to the prosecution--and as often as it was given the court-room was cleared of spectators and the session secret; the isolated counsel for Mrs. Surratt, utterly at a loss to imagine the connection of such testimony, given under such solemn precautions, with their own client, and knowing nothing whatever of the witnesses themselves, must have looked on in bewildered amazement, and had no motive for cross-examination. The chief witnesses who gave this carefully suppressed evidence were spies upon the rebel agents in Canada paid by the United States, and, at the same time, spies upon the United States paid by the rebel agents. They were, of course, ready to swear to as many conversations with these agents, both before and after the assassination, in which those agents implicated themselves and the heads of government at Richmond in the most reckless manner, as the Judge-Advocates thought necessary or advisable. The head, parent and tutor of this band of witnesses was a man called Sanford Conover. After giving his testimony before the Commission, he went to Canada and again resumed his simulated intimacy with the Confederates there, passing under the name of James W. Wallace. An unauthorized version of his testimony having leaked out and appearing in the newspapers, he was called to account for it by his Canadian friends. He then made and published an affidavit that the person who had given testimony before the Commission was not himself but an imposter, and at the same time also published an offer of $500 reward for the arrest of "the infamous and perjured scoundrel who secretly personated me under name of Sanford Conover, and deposed to a tissue of falsehood before the military Commission at Washington." Being reclaimed by the government from his Canadian perils, he appeared again before the Court after the testimony had been closed and the summing up of all the prisoners' counsel had been completed (June 27th); when he testified that his affidavit had been extorted from him by the Confederates in Canada by threats of death at the point of a pistol. This man Conover was subsequently (in 1867) tried and convicted of perjury and sent to the penitentiary; and with him the whole structure of perjured testimony, fabricated for reward by him and Montgomery and their co-spies, fell to the ground. Secretary Seward testified before the Judiciary Committee of the House of Representatives, in 1867, that, "the testimony of these witnesses was discredited and destroyed by transactions in which Sanford Conover appeared and the evidence of the alleged complicity of Jefferson Davis thereupon failed." But, at the period of the trial, when the passionate desire for vengeance was at its height, any plausible scoundrel, whose livelihood depended on the rewards for wholesale perjury, and who was sure to be attracted to Washington by the scent of his favorite game, was thrice welcome to the Bureau of Military Justice. Any story, no matter how absurd or incredible, provided it brought Jefferson Davis within conjectural fore-knowledge of the assassination, was greedily swallowed, and, moreover, was rewarded with money and employment. These harpies flocked, like buzzards, around the doors of the old Penitentiary, and all--black and white, from Richmond, from Washington and from Montreal--were eager, for a consideration, to swear that Davis and Benjamin were the instigators of Booth and Surratt. And such testimony as it was! For the most part the sheerest hearsay! The private impressions of the witness! In one instance, his recollection of the contents of a letter the witness had heard read or talked about, the signature of which, although he did not see it himself, he heard was the signature of Jefferson Davis!! Testimony wholly inadmissible under the most elementary rules of evidence, but swept before the Commission in the absence of counsel for the parties implicated and under the immunity of a secret session. For example: a blind man, who had been, at an undated period during the war, a hanger-on around the camp at Richmond, being asked whether he had heard any conversations among the rebel officers in regard to the contemplated assassination, answered: "In a general way, I have heard sums offered, to be paid with a Confederate sum, for any person or persons to go North and assassinate the President." Being pressed to name the amount and by what officers, he answered: "At this moment, I cannot tell you the particular names of shoulder-straps, &c. "Q.--Do you remember any occasion--some dinner occasion? "A.--I can tell you this: I heard a citizen make the remark once, that he would give from his private purse $10,000, in addition to the Confederate amount, to have the President assassinated; to bring him to Richmond dead or alive, for proof. "Q.--I understood you to say that it was a subject of general conversation among the rebel officers? "A.--It was. The rebel officers, as they would be sitting around their tent doors, would be conversing on such a subject a great deal. They would be saying they would like to see his head brought there, dead or alive, and they should think it could be done; and I have heard such things stated as that they had certain persons undertaking it." In the introduction of evidence against Mrs. Surratt, as well as the others on trial, the Judge-Advocates allowed themselves the most unlimited range. Narrations of all sorts of events connected with the progress of the War--historical, problematical or fabulous--having no relevancy to the particular charge against her, or them, but deadly in their tendency to steel the minds of the Court against her, were admitted without scruple or hesitation. Seven soldiers who had been prisoners of war at Libby Prison, Belle Island or Andersonville were called and testified, in all its ghastly details, to the terrible treatment they and their fellow-prisoners had undergone. Three witnesses were sworn to prove that the rebel government buried a torpedo under the centre of Libby Prison, to be fired if the U. S. troops entered Richmond. Letters found in the Richmond Archives were read, offering to rid the world of the Confederacy's deadliest enemies, and projecting wholesale destruction to property in the North. Testimony was allowed to be given of the burning of U. S. transports and bridges by men in the Confederate service; of the raids from Canada into the United States; of the alleged plot in all its horrible features to introduce the yellow-fever into Northern cities by infected clothing, testified to by the villain who swore he did it for money. It is scarcely to be credited, yet it is a fact, that the confession of Robert Kennedy, hung in March previous for attempting to burn the City of New York, was read in evidence; as was also a letter from a Confederate soldier, detailing the blowing up of vessels by a torpedo and the killing of Union men at City Point, indorsed by a recommendation of the operator to favor. On June 27th, after the testimony had been closed and the summing up of counsel for the defense ended, the case was reopened and there was introduced an advertisement clipped from the "Selma Dispatch" of December 1st, 1864, wherein some anonymous lunatic offered, if furnished $1,000,000, to cause the lives of Lincoln, Seward and Johnson to be taken before the first of March. The prosecution closed its direct testimony on May 25th, reserving the right (of which we have seen they availed themselves from time to time) thereafter to call further witnesses on the character of the Rebellion and the complicity of its leaders in the assassination. Out of about one hundred and fifty witnesses sixty-six gave testimony of that kind. Of the remaining eighty-four about fifty testified to the circumstances attending the assassination, the pursuit and capture of Booth and Herold, and the terrific assault of Payne on William H. Seward and his household. Of the remaining thirty-four there were nine whose testimony was directed to the incrimination of Mrs. Surratt. The important witnesses against her were three soldiers testifying under the eye of their superior officers as to her non-recognition of Payne, and two informers who had turned state's evidence to save their own necks, who connected her with Booth. The witnesses for the defense, for the most part, were treated by the Special Judge-Advocate as virtual accomplices of the accused; and, as soon as, by a searching cross-examination, he had extorted from them a reluctant admission of the slightest sympathy with the South (as in almost every case he was able to do), he swept them aside as impeached, and their testimony as unworthy of a moment's consideration. A former slave, who announced himself or herself as ready to give evidence against his or her former master, was a delicious morsel for the Bureau of Military Justice; and several such were sworn for the prosecution. While, on the other hand, nothing so exasperated the loyal Bingham or so astonished the Court as the apparition of an old slave-woman, summoned by the defense, eagerly endeavoring to exculpate her former master. Several priests testified as to the good character of Mrs. Surratt as a lady and a christian, but the effect of their testimony was immediately demolished in the eyes of the Court, when, on cross-examination, although they refused to substantiate what the Judge-Advocate called "her notorious intense disloyalty," they could not remember that they had ever heard her "utter one loyal sentiment." Chapter IV. ARGUMENTS FOR THE DEFENSE. The testimony for the several defenses of the eight accused closed on the 7th of June, and the testimony in rebuttal ended on the 14th, with the evidence of the physicians on the sanity of Payne. Thereupon, General Ewing endeavored to extract from the Judge-Advocate an answer to the two following questions: First.--Whether his clients were on trial for but one crime, viz.: Conspiracy, or four crimes, viz.: Conspiracy, Murder, Attempt at murder, Lying in wait? and Second.--By what statute or code of laws the crimes of "traitorously" murdering, or "traitorously" assaulting with intent to kill, or "traitorously" lying in wait, were defined, and what was the punishment affixed? The Judge-Advocate's reply to the first question was, in substance, that all the accused were charged with conspiring to assassinate the President and the other members of the Government named, and further, with having executed that conspiracy so far as the assassination of the President and the assault on the Secretary of State were concerned, and "to have attempted its execution so far as concerns the lying in wait and other matters." Assistant Judge-Advocate Bingham added: "The act of any one of the parties to a conspiracy in its execution is the act of every party to that conspiracy; and therefore the charge and specification that the President was murdered in pursuance of it by the hand of Booth, is a direct and unequivocal charge that he was murdered by every one of the parties to this conspiracy, naming the defendants by name. "Mr. Ewing.--I understand * * * but I renew my inquiry, whether these persons are charged with the crime of conspiracy alone, and that these acts of murdering, assaulting, and lying in wait, were merely acts done in execution of that conspiracy. "Mr. Bingham (interrupting).--And not crimes? "Mr. Ewing.--Or whether they are charged with four distinct crimes in this one charge? "Mr. Bingham.--'Where parties are indicted for a conspiracy, and the execution thereof, it is but one crime at the common law. And that as many * * * overt acts in the execution of the conspiracy as they are guilty of, may be laid in the same count.' "Mr. Ewing.--It is then, I understand, one crime with which they are charged. "Mr. Bingham.--One crime all round, with various parts performed. "Mr. Ewing.--The crime of conspiracy. "Mr. Bingham.--It is the crime of murder as well. It is not simply conspiring but executing the conspiracy treasonably and in aid of the Rebellion. "Mr. Ewing.--I should like an answer to my question, if it is to be given: How many crimes are my clients charged with and being tried for? I cannot tell. "Mr. Bingham.--We have told you, it is all one transaction." General Ewing, not being able to get an answer intelligible to himself to the first question, then respectfully asked an answer to the second: By what code or statute the crime was defined and the punishment provided? "The Judge-Advocate.--I think the common law of war will reach that case. This is a crime which has been committed in the midst of a great civil war, in the capital of the country, in the camp of the Commander-in-Chief of our armies, and if the common law of war cannot be enforced against criminals of that character, then I think such a code is in vain in the world. "Mr. Ewing.--Do you base it, then, only on the law of nations? "The Judge-Advocate.--The common law of war. "Mr. Ewing.--Is that all the answer to the question? "The Judge-Advocate.--It is the one I regard as perfectly appropriate to give. "Mr. Ewing.--I am as much in the dark now as to that as I was in reference to the other inquiry." It is significant that the ready Special Judge-Advocate rendered no aid to his colleague on the latter branch of the inquiry. According to the theory of the prosecution, then, Mary E. Surratt was tried, as a co-conspirator of Jefferson Davis and seven of his agents, of the seven men tried with her, and of Booth and her own son, for the crime of "traitorous conspiracy" to murder the President, Vice-President, Secretary of State and Lieutenant-General, of the United States; and for the following crimes committed in pursuance thereof: 1. Assassination of the President, with Booth. 2. Attempt to murder the Secretary of State, his two sons and two attendants (five crimes instead of one), with Payne. 7. Lying in wait to kill the Vice-President, with Atzerodt. 8. Lying in wait to kill the Lieutenant-General, with O'Laughlin. Eight separate species of crimes, beside the generic one of "traitorous conspiracy." And she, a citizen, a non-combatant, a woman, was tried on this nine-fold, omnibus charge, jointly with seven men, under "the common law of war"! * * * * * On the 16th of June (Friday), Mr. Clampitt read the argument of Reverdy Johnson against the jurisdiction of the Commission--one of the most cogent and convincing ever delivered in a court of justice. The Supreme Court of the United States, subsequently (December, 1866), in deciding the Milligan case, did but little more than reiterate the propositions maintained by this great lawyer. He opened his address by reminding the Court that the question of their jurisdiction to try and sentence the accused was for the Court alone to decide, and that no mandate of the President, if in fact and in law the Constitution did not tolerate such tribunals in such cases, could protect any member of the Commission from the consequences of his illegal acts. He then advanced and proved the following propositions: that none but military offenses are subject to the jurisdiction of military courts, and that the offenders when they commit such offenses must be subject to military jurisdiction--in other words, must belong to the army or navy; that the President himself had no right to constitute military courts of his own motion, but that such power must first be exercised by Congress under the constitutional grant to that body to make rules for the government and regulation of the land and naval forces; that, by the fifth and sixth amendments of the constitution, every person, except those belonging to the land or naval forces or to the militia in active service in time of war, and, being such, committing a military or naval crime, is guaranteed an investigation by a grand jury as a preliminary to trial, and a speedy and public trial by an impartial jury. He then took up and examined the grounds on which the jurisdiction of the Commission was sought to be maintained. Calling the Court's attention to the constitutional provision that, if the institution of such Commission was an incident to the war power, that power was lodged exclusively in Congress and not at all in the President, and, therefore, Congress only could authorize such tribunals, he showed that, neither by the articles of war nor by the two acts, relied on, passed during the Rebellion, had Congress ever authorized any such tribunal; and that a military commission like the present and under present circumstances "is not to be found sanctioned, or the most remotely recognized, or even alluded to, by any writer on military law in England or the United States, or in any legislation of either country." And, in this connection, he pronounced the suggestion that the civil courts and juries of the District of Columbia could not safely be relied upon for the trial of these cases, "an unjust reflection upon the judges, upon the people, upon the marshal, an appointee of the President, by whom the juries were summoned, and upon our civil institutions themselves;" and he closed his remarks upon this branch of his subject by saying that the foregoing suggestion, "upon another ground, is equally without force. It rests on the idea that the guilty only are ever brought to trial; that the only object of the Constitution and laws in this regard is to afford the means to establish alleged guilt; that accusation, however made, is to be esteemed _prima facie_ evidence of guilt, and that the Executive should be armed, without other restriction than his own discretion, with all the appliances deemed by him necessary to make the presumption from such evidence conclusive. Never was there a more dangerous theory. The peril to the citizen from a prosecution so conducted, as illustrated in all history, is so great that the very elementary principles of constitutional liberty, the spirit and letter of the Constitution itself repudiated it." After depicting the peril to the rights of the citizen of confiding to the option of the Executive the power of substituting a secret for a public tribunal for the trial of offenses, he established the following propositions: That the creation of a Court is an exclusively legislative function; that constitutional guarantees are designed for times of war as well as times of peace; that the power to suspend the writ of Habeas Corpus carries with it only the temporary suspension of the right to inquire into the cause of the arrest, and does not extend in any way over the other rights of the accused. The distinguished advocate then further maintained that, conceding the articles of war provide for a military court like this, yet the offense charged in the present case being nothing less than treason could not under the provision of the constitution, regulating the trial of treason, be tried by a military commission; and, also, that under the articles of war persons who were not and never had been in the army were not subject to military law. And, in order to illustrate this branch of his argument as forcibly as possible, passing in review the guaranteed and historic rights of accused persons on trials before civil courts, he arrayed the open and flagrant violations of these rights which had been permitted by the Commission on the present trial: First, in the character of the pleadings, which for indefiniteness and duplicity would not have been tolerated by any civil tribunal. Second, as to the rules of evidence, which, according to the Judge-Advocate, allowed proof of separate and distinct offenses alleged to have been committed, not only by the parties on trial, but by other persons, and which the accused, however innocent, could not be supposed able to meet. Third, he quoted Lord Holt to show that in a civil court "these parties could not have been legally fettered during their trial." Referring to the row of miserable beings weighed down with shackles as they had entered the court-room, as they confronted their epauletted judges, and as they departed to their solitary cells, day by day, for more than a month, he repeated the words of the great jurist, then 200 years old: "Hearing the clanking of chains, though no complaint was made to him, he said, 'I should like to know why the prisoner is brought in ironed. Let them be instantly knocked off. When prisoners are tried they should stand at their ease.'" Then, characterizing the claim, that martial law prevailing in the District of Columbia therefore warranted the Commission, as alike indefensible and dangerous, and at the same time irrelevant because martial law had never been proclaimed and the civil courts were in the full and undisturbed exercise of all their functions, the counsel drove this point home as follows: "We learn, and the fact is doubtless true, that one of the parties, the very chief of the alleged conspiracy, has been indicted, and is about to be tried before one of those courts. If he, the alleged head and front of the conspiracy, is to be and can be so tried, upon what ground of right, of fairness or of policy, can the parties who are charged to have been his mere instruments be deprived of the same mode of trial?" At the close of his speech he recurs to the warning that the President's command can furnish no justification to the members of the tribunal. If their function were only to act as aides to the President to enable him to discharge his prerogative of punishment, and is to that extent legal, then it is only so because the President might have dispensed with the Court altogether, and ordered the punishment of the culprits without any formal trial. No, he warned them, in the most courtly and courteous manner, they could not shield themselves behind the President. "Responsibility to personal danger can never alarm soldiers who have faced * * * death on the battle-field. But there is a responsibility that every gentleman, be he soldier or citizen, will constantly hold before him and make him ponder--responsibility to the constitution and laws of his country and an intelligent public opinion--and prevent his doing anything knowingly that can justly subject him to the censure of either. I have said that your responsibility is great. If the Commission under which you act is void and confers no authority, whatever you may do may involve the most serious personal liability." He then cited the case of Governor Wall, hung in London in 1802 for murder--a soldier, under his government in the island of Goree, having been whipped to death by sentence of a regimental court-martial, twenty years before. "In that instance want of jurisdiction in the court-martial was held to be fatal to its judgment as a defense for the death that ensued under it. In this, if the Commission has no jurisdiction, its judgment for the same reason will be of no avail, either to Judges, Secretary of War, or President, if either shall be called to a responsibility for what may be done under it." The learned counsel then added: "The opinion I have endeavored to maintain is believed to be the almost unanimous opinion of the profession and certainly is of every judge or court who has expressed any." And he cited the then recent charge of Judge Bond to the grand jury at Baltimore, in which the Judge declared in reference to such military commissions as the present, that, "Such persons exercising such unlawful jurisdiction are liable to indictment by you as well as responsible in civil actions to the parties." And he quoted to the Court that portion of the charge of Judge Rufus W. Peckham to a grand jury in New York City, delivered during the progress of this very trial, wherein the right of a military commission to try was denied: "A great crime has lately been committed that has shocked the civilized world. Every right-minded man desires the punishment of the criminals, but he desires that punishment to be administered according to law, and through the judicial tribunals of the country. No star-chamber court, no secret inquisition, in this nineteenth century, can ever be made acceptable to the American mind. * * * * * "Grave doubts, to say the least, exist in the minds of intelligent men, as to the constitutional right of the Military Commission at Washington to sit in judgment upon the prisoners now on trial for their lives before that tribunal. Thoughtful men feel aggrieved that such a commission should be established in this free country, when the war is over, and when the common law courts are open and accessible to administer justice according to law, without fear or favor. * * * "The unanimity with which the leading press of our land has condemned this mode of trial ought to be gratifying to every patriot." On the twenty-third, General Ewing, too, assailed the jurisdiction of the Court in a short but powerful speech from which are taken the following extracts: "The jurisdiction of the Commission has to be sought _dehors_ the Constitution, and against its express prohibition. It is, therefore, at least of doubtful validity. If that jurisdiction do not exist; if the doubt be resolved against it by our judicial tribunals, when the law shall again speak, the form of trial by this unauthorized Commission cannot be pleaded in justification of the seizure of property or the arrest of persons, much less the infliction of the death penalty. In that event, however fully the recorded evidence may sustain your findings, however moderate may seem your sentences, however favorable to the accused your rulings on the evidence, your sentence will be held in law no better than the rulings of Judge Lynch's courts in the administration of lynch law. "Our judicial tribunals, at some future day * * * will be again in the full exercise of their constitutional powers, and may think, as a large proportion of the legal profession think now, that your jurisdiction in these cases is an unwarranted assumption; and they may treat the judgment which you pronounce and the sentence you cause to be executed, as your own unauthorized acts. "Conviction may be easier and more certain in this Military Commission, than in our constitutional courts. Inexperienced as most of you are in judicial investigation, you can admit evidence which the courts would reject, and reject what they would admit, and you may convict and sentence on evidence which those courts would hold to be wholly insufficient. Means, too, may be resorted to by detectives, acting under promise or hope of reward, and operating on the fears or the cupidity of witnesses, to obtain and introduce evidence, which cannot be detected and exposed in this military trial, but could be readily in the free, but guarded, course of investigation before our regular judicial tribunals. The Judge-Advocate, with whom chiefly rests the fate of these citizens, is learned in the law, but from his position he can not be an impartial judge, unless he be more than a man. He is the prosecutor in the most extended sense of the word. As in duty bound, before this court was called, he received the reports of detectives, pre-examined the witnesses, prepared and officially signed the charges, and, as principal counsel for the Government, controlled on the trial the presentation, admission and rejection of evidence. In our courts of law, a lawyer who has heard his client's story, if transferred from the bar to the bench, may not sit in the trial of the cause, lest the ermine be sullied through the partiality of counsel. This is no mere theoretical objection--for the union of prosecutor and judge works practical injustice to the accused. The Judge-Advocate controls the admission and rejection of evidence--knows what will aid and what will injure the case of the prosecution, and inclines favorably to the one and unfavorably to the other. The defense is met with a bias of feeling and opinion on the part of the judge who controls the proceedings of the Court, and on whom, in great measure, the fate of the accused depends, which morals and law alike reject." Whatsoever else may be pleaded in excuse or palliation of the acts of the Commission, it can never be said that its members were driven on by an overpowering sense of their duty as soldiers, in blind ignorance of the Constitution and the law. Each and every officer was made fully aware of his awful responsibility and apprised of the precarious footing of his authority. CHAPTER V. CHARGE OF JUDGE BINGHAM. From the sixteenth to the twenty-seventh of June the time was consumed by the summing up of the several counsel for the prisoners on the facts disclosed by the evidence; and on the last mentioned day and the succeeding one, Special Judge-Advocate Bingham delivered his address in answer to all the foregoing pleas, both as to the jurisdiction of the Court and also as to the merits of the case. This long, carefully prepared and yet impassioned speech may be fairly considered as embodying the very proof-charge of the prosecution. Indeed, under the rules of military procedure, it occupies the place and performs the functions of the judge's charge in the common-law courts. As such, it deserves a closer analysis and a more extended examination than can be given to it here. The briefest and most cursory review, however, will suffice to show its tone and temper. After a solemn asseveration of his desire to be just to the accused, and a warning to the Court that "a wrongful and illegal conviction or a wrongful and illegal acquittal * * * would impair somewhat the security of every man's life and shake the stability of the Republic," the learned advocate specifically declares, that the charge "is not simply the crime of murdering a human being" but a "combination of atrocities," committed as charged upon the record, "in pursuance of a treasonable conspiracy entered into by the accused with one John Wilkes Booth, and John H. Surratt, upon the instigation of Jefferson Davis, Jacob Thompson, George N. Sanders and others, with intent thereby to aid the existing rebellion and subvert the constitution and laws of the United States." A denunciation of the Rebellion as "itself simply a criminal conspiracy and a gigantic assassination"; the following glowing period--"Now that their battalions of treason are broken and flying before the victorious legions of the republic, the chief traitors in this great crime against your government secretly conspire with their hired confederates to achieve by assassination what they in vain attempt by wager of battle";--and the unequivocal announcement that "it is for this secret conspiracy in the interest of the rebellion, formed at the instigation of the chief in that rebellion, and in pursuance of which the acts charged and specified are alleged to have been done, and with the intent laid, that the accused are upon trial": finish the exordium. The speaker then tackles the question of jurisdiction, which, he remarks by the way, "as the Court has already overruled the plea," he would pass over in silence, "but for the fact that a grave and elaborate argument has been made by the counsel for the accused, not only to show want of jurisdiction, but to arraign the President of the United States before the country and the world as a usurper of power over the lives and the liberties of the prisoners." He dexterously evades the force of the argument that the civil courts of the District were open when the crime was committed, by asserting that "they were only open * * * and are only open at this hour by force of the bayonet;" and he claims that the President acting by a military force had as much right to try the co-conspirators of Booth, as to pursue, capture and kill the chief criminal himself; which, if true, leads us into the maintenance of the monstrous doctrine that the President by a summary order might have strung up the culprits without the interposition of any court. He then enters upon an argument to show that the Commission, from the very nature of its organization, cannot decide that it is no Court, and he ridicules the idea that these nine subordinate military officers could question the authority of their Commander-in-Chief. In this connection, he gently rebukes Mr. Ewing for his bold statement to the Commission: "You, gentlemen, are no court under the Constitution!" reminding him that "not many months since he was a general in the service of the country and as such in his department in the West proclaimed and enforced martial law;" and asks him whether he is "quite sure he will not have to answer for more of these alleged violations of the rights of citizens than any of the members of the Court?" He professes his high regard for General Ewing as a military commander who has made a "liberal exercise of this power," and facetiously wishes "to know whether he proposes, by his proclamation of the personal responsibility awaiting all such usurptions," that he himself shall be "drawn and quartered." After disposing of General Ewing in this gingerly manner, he compensates himself for the slight restraint by pouring the vials of his unstinted wrath upon Reverdy Johnson; representing him as "denouncing the murdered President and his successor," as making "a political harangue, a partisan speech against his government and country, thereby swelling the cry of the armed legions of sedition and rebellion that but yesterday shook the heavens." He characterizes one of the most temperate and dignified of arguments as "a plea in behalf of an expiring and shattered rebellion," and "a fit subject for public condemnation." He calls upon the people to note, "That while the learned gentleman [Mr. Johnson], as a volunteer, without pay, thus condemns as a usurpation the means employed so effectually to suppress this gigantic insurrection, the New York News, whose proprietor, Benjamin Wood, is shown by the testimony upon your record to have received from the agents of the rebellion $25,000, rushes into the lists to champion the cause of the rebellion, its aiders and abettors, by following to the letter his colleague [Mr. Johnson], and with greater plainness of speech, and a fervor intensified doubtless by the $25,000 received, and the hope of more, denounces the Court as a usurpation and threatens the members with the consequences." And he interrupts his tirade against one of the greatest men this country has produced to burst forth into the following grandiloquent apostrophe: "Youngest born of the Nations! Is she not immortal by all the dread memories of the past--by that sublime and voluntary sacrifice of the present, in which the bravest and noblest of her sons have laid down their lives that she might live, giving their serene brows to the dust of the grave, and lifting their hands for the last time amidst the consuming fires of battle!" After a brief defense of the secret sessions of the Commission, the learned advocate enters upon his circumstantial reply to the argument of Mr. Johnson, into which it is not worth while to follow him, as the main points of his contention have been rendered obsolete by the Supreme Court of the United States. Suffice it to say, he holds that the President of the United States has the power, of his own motion, to declare martial law in time of war, over the whole United States, whether the States are within the theatre of the war or not; and that President Lincoln exercised this power by his proclamation of September, 1862, by virtue of which martial law prevailed over the whole North, including, of course, the District of Columbia, on the day of the assassination; and, farther, that certain subsequent acts of Congress, though not in express terms yet by fair implication, had ratified the proclamation. He contends, in consequence, that "nothing can be clearer than that citizen and soldier alike, in time of civil or foreign war, are triable by military tribunals for all offences of which they may be guilty, in the interest of, or in concert with the enemy;" and that "these provisions, therefore, of your Constitution for indictment and trial by jury in civil courts of _all crimes_ are * * * silent and inoperative in time of war when the public safety requires it." Listen to this judicial expounder of constitutional law! "Here is a conspiracy organized and prosecuted by armed traitors and hired assassins, receiving the moral support of thousands in every State and district, who pronounced the war for the Union a failure, and your now murdered but immortal Commander-in-Chief a tyrant. "It is in evidence that Davis, Thompson, and others * * * agreed and conspired with others to poison the fountains of water which supply your commercial metropolis, and thereby murder its inhabitants; to secretly deposit in the habitation of the people and in the ships in your harbor inflammable materials, and thereby destroy them by fire; to murder by the slow and consuming torture of famine your soldiers, captives in their hands; to import pestilence in infected clothes to be distributed in your capital and camps, and thereby murder the surviving heroes and defenders of the Republic. "I claim that the Constitution itself * * * by express terms, has declared whatever is necessary to make the prosecution of the war successful, may be done, and ought to be done, and is therefore constitutionally lawful. "Who will dare to say that in the time of civil war no person shall be deprived of life, liberty and property, without due process of law? This is a provision of your Constitution, than which there is none more just and sacred in it; it is, however, only the law of peace, not of war. "In time of war the civil tribunals of justice are wholly or partially silent, as the public safety may require; * * * the limitations and provisions of the Constitution in favor of life, liberty and property are therefore wholly or partially suspended." He makes allusion to the recent re-election of President Lincoln, as ratifying any doubtful exercise of power by him: "The voice of the people, thus solemnly proclaimed, by the omnipotence of the ballot * * * ought to be accepted, and will be accepted, I trust, by all just men, as the voice of God." He concludes his plea in favor of the jurisdiction of the Commission, by declaring that for what he had uttered in its favor "he will neither ask pardon nor offer apology," and by quoting Lord Brougham's speech in defence of a bill before the House of Lords empowering the Viceroy of Ireland to apprehend and detain all Irishmen _suspect_ of conspiracy. The Special Judge-Advocate then proceeds to sum up the evidence, in doing which he leaves nothing to the free agency of the Court. He, first, by a review of the testimony of the Montgomeries and Conovers, proves to his own and, presumably, to the Court's satisfaction, that "Davis, Thompson, Cleary, Tucker, Clay, Young, Harper, Booth and John H. Surratt did combine and conspire together in Canada to kill and murder Abraham Lincoln, Andrew Johnson, Wm. H. Seward and Ulysses S. Grant." "Surely no word further need be spoken to show that John Wilkes Booth was in this conspiracy; that John H. Surratt was in this conspiracy; and that Jefferson Davis, and his several agents named, in Canada, were in this conspiracy. "Whatever may be the conviction of others, my own conviction is that Jefferson Davis is as clearly proven guilty of this conspiracy as is John Wilkes Booth, by whose hand Jefferson Davis inflicted the mortal wound upon Abraham Lincoln." After such utterances as these, it is hardly necessary to state that this impartial Judge declares every single person on trial, as well as John H. Surratt, guilty beyond the shadow of a doubt. "That John H. Surratt, George A. Atzerodt, Mary E. Surratt, David E. Herold, and Louis Payne entered into this conspiracy with Booth, is so very clear upon the testimony, that little time need be occupied in bringing again before the Court the evidence which establishes it. "It is almost imposing upon the patience of the Court to consume time in demonstrating the fact, which none conversant with the testimony of this case can for a moment doubt, that John H. Surratt and Mary E. Surratt were as surely in the conspiracy to murder the President as was John Wilkes Booth himself." He lets out the secret that the mother is on trial as a substitute for her son, whom the Secretary of War and the Bureau of Military Justice had failed to capture, by saying: "Nothing but his conscious coward guilt could possibly induce him to absent himself from his mother, as he does, upon her trial." After having reiterated over and over again, with all the authority of his office, what he had for hours endeavoured to enforce by all the resources of his intellect, that the guilt "of all these parties, both present and absent" is proved "beyond any doubt whatever," and "is no longer an open question;" he closes by formally, and with a very cheap show of magnanimity, leaving "the decision of this dread issue" to the Court. CHAPTER VI. THE VERDICT, SENTENCE AND PETITION. With the loud and repeated denunciations of this elaborate and vindictive harangue, full as it was of rhetorical appeals to the members of the Commission to avenge the murder of "their beloved Commander-in-Chief," and of repeated and most emphatic assurances of the undoubted guilt of each and every one of the prisoners, as well as of all their alleged accomplices, still ringing in the ear of the Court; the room is for the last time cleared of spectators, counsel for the prisoners and reporters; the mournful procession of the accused marches for the last time from the dock to their solitary cells, their fetters clanking as they go; and the Commission meets to deliberate upon its verdict. But who remains in the room, meets with the Court and participates in its secret and solemn deliberations? Who but Colonel Burnett, the officer who had so zealously conducted the preliminary examinations of the witnesses and marshalled the evidence for the prosecution? Who but Recorder Joseph Holt, the head of the Bureau of Military Justice, the left hand of Stanton as Baker was his right? Who but John A. Bingham, the Special Judge-Advocate, who had so mercilessly conducted the trial, assailing counsel, browbeating witnesses for the defense, declaring that all participants in the rebellion were virtually guilty of the assassination, and who had just closed his long speech, in which he had done his utmost to stir up the Commission to the highest pitch of loyalty, unreasoning passion and insatiable desire for vengeance? Where can we look in the history of the world for a parallel to such a spectacle? A woman of refinement and education, thrown together in one mass with seven men, to be tried by nine soldiers, for the crime of conspiring with Jefferson Davis, the arch-enemy of every member of the tribunal, to kill, and killing, the beloved Commander-in-Chief of every member of the tribunal; three experienced criminal lawyers eagerly engaging in the task of proving her guilty; pursuing it for days and weeks with the unrelenting vigor of sleuth-hounds; winding up by reiterating in the most solemn manner their overwhelming conviction of her guilt; and then all three being closeted with the Court to take part in making up the doom of death! And here let us pause to consider one feature of the trial and of the summing up of Judge Bingham, which has not yet been noticed because it deserves special and prominent remark. It appeared from the testimony on the part of the prosecution, unmistakably, that, during the fall of 1864 and the winter of 1864-5, Booth was brooding over a wild plot for the capture of the President (either on one of his drives, or in the theatre, where the lights were to be turned off), then hurrying off the captive to lower Maryland, thence across the Potomac, and thence to Richmond; thereby to force an exchange of prisoners, if not, possibly, a cessation of the war. It was a plot of the kind to emanate from the disordered brain of a young, spoiled, dissipated and disappointed actor. During this period, Booth made some trifling and miserably inadequate preparations, and endeavored to enlist some of his associates in its execution; and, by his personal ascendency over them, he did in fact entangle, in a more or less vague adhesion to the plot, Arnold, O'Laughlin, Atzerodt, Payne, Herold, John H. Surratt, Lloyd, and, possibly, Dr. Mudd and Weichman. On the fall of Richmond, and the surrender of Lee, this any-how impracticable scheme was necessarily abandoned. Indeed, the proof showed that Arnold and O'Laughlin had deserted their leader some time before. It further appeared in the testimony that it was not until after the forced abandonment of this plot and the desertion of most of his adherents, that Booth, plunged as he was into the depths of chagrin and despair because of the collapse of the rebellion, suddenly, as a mere after-thought, the offspring of a spirit of impotent revenge, seized upon the idea of murder, which was not in fact brought to the birth until the afternoon of the fourteenth, when he was first informed of the promised attendance of President Lincoln and General Grant at the theatre. Now, the existence of the plot to capture, although it looked forth from the evidence steadily into their faces, the Judge-Advocates bound themselves not to recognize. In the first place, such a concession would forever demolish the preconceived theory of the Secretary of War, Colonel Baker and the Bureau of Military Justice, that the conspiracy to murder emanated from the Confederate Government through its Canadian agents, by pointing directly to another plot than the one to kill as that in which these agents had been interested. The horrid monster of a widespread, treasonable conspiracy to overthrow the government, which had been conjured up in the imagination of the Secretary of War and then cherished in the secret recesses of the Bureau of Military Justice, would have immediately shrunk into the comparatively simple case of an assassination of the President and an attempted assassination of the Secretary of State, by two worthless villains suddenly seizing opportunity by the forelock to accomplish their murderous purpose. And, in the next place, the concession of such a plot as a fact would go far to establish the innocence of Mrs. Surratt, Arnold, O'Laughlin and Mudd, as well as that of John H. Surratt, by explaining such suspicious circumstances as the frequent rendezvous of Booth, Payne and others at Mrs. Surratt's house, which practice, as it was proved, ceased altogether on the fall of Richmond and the immediate departure of the son to Canada. To the Judge-Advocates, if not to the Court, any evidence looking towards innocence was most distasteful and unwelcome. They were in no mood to reconcile what they considered the damning proofs of a conspiracy to kill their "beloved Commander-in-Chief" with the innocence of the fettered culprits before them, by admitting a plot to capture, into which nevertheless those same proofs fitted with surprising consistency. Besides, in the eyes of Bingham and Holt, complicity in a plot to capture, although unexecuted, was proof of complicity in the plot to murder, and also of itself deserved death. In this direction, therefore, the Judge-Advocates were mole-eyed. On the contrary, they hailed the slightest indication of guilt with a glow of triumph. In the direction of guilt, they were lynx-eyed. Consequently, they bent every energy to identify the plot to capture with the plot to kill. They introduced anonymous letters, dropped letters; a letter mailed nearly a month after the assassination directed to J. W. B.; a letter in cipher, purporting to be dated the day after the assassination, addressed to John W. Wise, signed "No Five," found floating in the water at Morehead City, North Carolina, as late as the first of May; this last, the most flagrant violation and cynical disregard of the law of evidence on record. They did more. They labored to keep out all reference to the plot to capture. And it was for this reason, that the Judge-Advocates deliberately suppressed the diary found on the body of Booth. Its contents demonstrated the existence of the plot to capture. Instead of allowing the officer who testified to the articles taken from the dead body of Booth to make a detailed statement in response to one general question as to what they were, the examining counsel shows him first the knife, then the pistols, then the belt and holster, then a file with a cork at one end, then a spur, then the carbine, then the bills of exchange, then the pocket-compass; following the exhibition of every article with the interrogatory, "Did you take this from the corpse of the actor?" But no diary was exhibited or even spoken of, although, as has been mentioned, it was carried by this same officer and Colonel Baker to Secretary Stanton on the night following the capture. That these Judge-Advocates had carefully searched through the diary for items they could use against the prisoners, is shown by their calling one of the proprietors of the "National Intelligencer," as a witness, to contradict the statement that Booth had left a written article, setting forth the reasons for his crime, for publication in that paper--a statement found only in the diary whose very existence they kept secret. Therefore, when Judge Bingham came to review the evidence, he utterly refused to recognize in the testimony any such thing as a plot to capture; he shut his eyes to it and obstinately ignored it; he scornfully swept it aside as an absurdity it would be waste of time to combat; and he twisted every circumstance which looked to a connection, however remote, with an abandoned plot to kidnap, into a proof, solid and substantial, of complicity in the plot to murder. And, therefore, when this same thorough-going advocate, with his two emulous associates, proceeded in secret conclave with the members of the Commission to go over the testimony for the purpose of making up their verdict and sentence, he summarily stifled any hint as to the possibility of a plot to capture; he banished from the minds of the Court, if they ever entertained such a purpose, any attempt to reconcile the circumstantial evidence with the existence of such a plot; and, besides, he held it up to the condemnation of those military men as equally heinous and as deserving the same punishment as the actual assassination. Thus, the presence of these prosecutors during the deliberations of the Court must have exerted a deadly influence (if any influence were necessary) against the prisoners, and benumbed any impartiality and freedom of judgment which might otherwise have lodged in the members of the Commission. The Commission, with its three attending prosecuting officers, held two secret sessions--Thursday and Friday, the 29th and 30th of June; on the first day from 10 o'clock in the morning until 6 o'clock in the evening, on the second day, probably, during the morning only. The record of the proceedings is meagre, but contains enough to show the lines of the discussion which, in such an unexpected manner through one whole day, prolonged the deliberations of a tribunal organized solely to obey the predetermination of a higher power, and even made necessary an adjournment over night. There was no difficulty with the verdicts, except in the case of Spangler, over the degree of whose guilt a majority of the Commission presumed for the first time to differ with the Judge-Advocates. They would unite in a conviction of the crime of assisting Booth to escape from the theatre with knowledge of the assassination, but they would go no farther. They would not find him a participant in the "traitorous conspiracy." This poor fellow, as we can see _now_, was clearly innocent of the main charge; but that was no reason, _then_, why the Commission should find him so. There was more testimony pointing to his complicity with Booth on the fatal night than there was against Arnold or O'Laughlin or even Mrs. Surratt; and Judge Bingham, the guardian and guide of the Court, had pronounced it "Conclusive and brief." The testimony of the defense, however, appears overwhelmingly convincing, and, moreover, his case was admirably managed by General Ewing. For all the rest there was no mercy in the verdict. Every one was found guilty of the charge as formulated (eliminating Spangler); that is, in the judgment of the Commission, they had, each and all, been engaged in a treasonable conspiracy with Jefferson Davis, John H. Surratt, John Wilkes Booth and the others named, to kill Abraham Lincoln, President, Andrew Johnson, Vice-President, Wm. H. Seward, Secretary of State, U. S. Grant, Lieutenant-General; and that in pursuance of such conspiracy they (the prisoners) together with John H. Surratt and J. Wilkes Booth, had murdered Abraham Lincoln, assaulted with intent to kill W. H. Seward, and lain in wait with intent to kill Andrew Johnson and U. S. Grant. This was the deliberate judgment of the Commission as guided by Judge-Advocates Holt, Burnett and Bingham. With the same breath with which they pronounced the guilt of Mrs. Surratt, they pronounced also the guilt of her son, of Jefferson Davis, of Clement C. Clay, of George H. Sanders, of Beverly Tucker. And there can be no doubt that if these men had also been upon trial, they all would have been visited with the same condemnation and would have met the same doom. The Commission, further, found Herold, Atzerodt, Payne and Arnold guilty of the Specification as formulated (eliminating Spangler); Mrs. Surratt guilty, except that she had not harbored and concealed Arnold or O'Laughlin; Dr. Mudd guilty, except that he had not harbored or concealed Payne, John H. Surratt, O'Laughlin, Atzerodt or Mrs. Surratt; and, strangest of all, they found O'Laughlin guilty of the Specification, _except that he had not lain in wait for General Grant with intent to kill him_, which was the very part in the conspiracy he was charged in the Specification with having undertaken. It should be recollected that, in the first moments of the panic succeeding the assassination, Stanton and his subordinates had included among the objects of the conspiracy, as if to complete its symmetry, the murder of the Secretary of War, himself. Afterwards, probably because of the attitude of Stanton relative to the prosecution, Grant was substituted as the victim of O'Laughlin and not of Booth; Stanton's son having discovered a resemblance of the captured O'Laughlin to the mysterious visitor at his father's house during the serenade on the night of the 13th of April, when General Grant was also present. This pretty romance, the testimony on behalf of O'Laughlin effectually dissipated on the trial, but the indomitable Bingham still insisted on holding the prisoner to a general complicity with the plot. In this instance, as well as in that of Spangler, there may have been some dissension between a majority of the officers and the Judge-Advocates, but, taken altogether, the eight verdicts could not have cost the Commission much time. It was organized to convict, and it did convict. So that it was not until the Court, having made up its verdicts, proceeded to affix its sentences, that the three advocates, still assisting at the work of death, encountered the unforeseen difficulties which compelled a prolongation of the session. The crime or crimes of which the prisoners were all pronounced guilty (with the possible exception of Spangler's) were capital, and the Secretary of War, on the eve of the assembling of the Commission, had already denounced against such offenses (not excepting Spangler's) the punishment of death. The sentence, however, under the rules governing military commissions, was wholly within the power of the Court, which, no matter what the nature of the verdict, could affix any punishment it saw fit, from a short imprisonment up to the gallows. Its two-fold function was, like a jury to find a verdict, not only, but, like the judge in a common-law court, to pronounce sentence; and, unlike such a judge, in pronouncing sentence, the Commission was confined within certain limits by no statute. Although the whole proceedings of the Court must be subjected to the final approval of the President, yet its members were clothed alike with the full prerogative of justice and the full prerogative of clemency. There was one limit, however. While a majority could find the verdict and prescribe every other punishment, it required two-thirds of the Commission to inflict the penalty of death. Four officers, therefore, could block the way to the scaffold, and five could mitigate any sentence, to any degree, and for any, or for no reason. The Commission must have taken up the cases for sentence in the order adopted in the formal Charge. As to the first three--Herold, Atzerodt and Payne--there could have been no dissent or hesitation. The Commission, with hardly a moment's deliberation, must have ratified the judgment of the Judge-Advocates and condemned the prisoners to be hung by the neck until dead. The sentences of death formally declare in every instance that two-thirds of the Commission concur therein, but, as to these three, we can scarcely be in error in stating the Court was unanimous. It was not until the cases of the next three--O'Laughlin, Spangler and Arnold--were reached, that symptoms of dissatisfaction with the sweeping doom of death, so confidently pronounced by Judge Bingham in his charge, first began to show themselves amongst the members of the Court. It seems that now, after having joined with the counsel in pronouncing capital punishment upon the three most prominent culprits, the majority could no longer whet their appetite for blood so as to keep it up to the same fierce edge as that of the Judge-Advocates. The deviations from the Charge and Specification, the Court had finally prescribed in the verdicts against O'Laughlin and Spangler, were not thought by the prosecutors to be of such importance as to warrant a softening of the sentence. But here the loyalty of some members of the Commission began to falter, and refuse to bear the strain. They had found O'Laughlin guilty of the "traitorous conspiracy," and Spangler guilty of aiding Booth to escape, and Arnold guilty in the same degree as Herold, Atzerodt and Payne, but in none of these cases could the attending advocates extort a two-thirds vote for death. In the case of Spangler, owing, it is said, to the impression made by General Ewing and the influence of General Wallace, they were compelled to allow a sentence of but six years imprisonment. And in the case of the two others--convicted co-conspirators with Booth and Davis though they were--these prosecuting officers had to rest satisfied with but life-long imprisonment. It was too evident that five members of the Commission had slipped the bloody rein. Three lives had they taken. Henceforth they would stop just this side the grave. At this point--when the Commission had sentenced to death three men and had just declined to sentence to death two more whom it had pronounced guilty of the same crime--at this point it was, that the sentence of Mary E. Surratt came up for determination. Now, the crimes of which Arnold had been found guilty were both in law and in fact the same of which she had been found guilty. Even the particular allegation in the Specification is the same in both cases, except some immaterial variance in the verbiage and in the names of co-conspirators. Of course, it will be presumed that the Commission had found the woman guilty without being pressed. But, equally of course, it will not be doubted that, in determining the sentence which should follow the verdict, the question of exercising the same mercy as the Commission had just exercised in the case of a man convicted of the same crime, must have arisen in the case of the woman. And, the question once having arisen, the first impulse of the majority, if inclined still to mercy, must have been to exert their own unquestioned function, and, as in the other cases, mitigate the sentence themselves. They would have, originally, no motive to thrust upon the President, who was to know comparatively nothing of the evidence, the responsibility of doing that thing, which they themselves who had heard the whole case thought ought to be done, and which in a parallel case they had just done. Even if they believed the woman's crime had a deeper tinge of iniquity than either Arnold's or Mudd's (of which the respective verdicts, however, give no hint), but that nevertheless her age and sex ought to save her from the scaffold, they need not have turned to the President for mercy on such a ground. The woman clothed upon by her age and sex had sat for weeks bodily before them. This very mitigation was what a majority of the Court had power to administer. The reason of the mitigation was a matter of no moment. The Court could commute for "age and sex" as well as the President, and, for that matter, could state the reason for the milder penalty in the sentence itself. Therefore, it may be taken for granted that here the Judge-Advocates again found that two-thirds of the Court would not concur in the infliction of the death penalty. Nay, that even a majority could not be obtained. Five out of the nine officers announced themselves in favor of imprisonment for life. Here, indeed, was a coil! The prosecutors were at their wits' ends. And lo! when they passed on to consider the last case, that of Dr. Mudd, the same incomprehensible reluctance to shed more blood did but add to their discomfiture. The verdict indeed had been easily obtainable, but the coveted death-sentence would not follow. The whole day had been spent in these debatings. The expedient of adjourning over to the next day, perhaps, was now tried; and the dismayed Judge-Advocates, with but three out of the eight heads they had made so sure of, and their "female fiend" likely to slip the halter, hurry away to consult with their Chief. Edwin M. Stanton, as he had presided over the whole preparatory process, so too had kept watch over the daily progress of the trial from afar. Every evening his zealous aide-de-camps made report for the day and took their orders for the morrow. After the death of Booth and the escape of John H. Surratt, the condemnation to death of the mother of the fugitive had become his one supreme aim. The condemnation of the other prisoners was to him either a matter of no doubt or was a minor affair. Three heads of the band of assassins stood out in bloody prominence--Booth, John H. Surratt and Payne. The first had been snatched from his clutches by a death too easy. Payne, with hand-cuffs and fetters and chains and ball and hood, he might be confident, could not evade his proper doom. Surratt, by the aid of some inscrutable, malignant power, had contrived to baffle all the efforts of his widespread and mighty machinery of military and detective police. But he had the mother, the friend of Booth and the entertainer of Payne; and she, the relentless Secretary with his accordant lackeys had sworn, should not fail to suffer in default of the self-surrender of her son. She, moreover, was to be made an example and a warning to the women of the South, who, in the judgment of these three patterns of heroism, had "unsexed" themselves by cherishing and cheering fathers, brothers, husbands and sons on the tented field. In the conclave which Stanton and his two co-adjutors held, either during the recesses of the prolonged session of the first day, or most likely during the night of the adjournment, it was resolved, that if the manly reluctance of five soldiers to doom a woman to the scaffold could be overcome in no other way, to employ as a last resort the "_suggestion_," that the Court formally condemn her to death, and then, as a compromise, the soft-hearted five petition the President to commute--the three plotters trusting to the chances of the future, with the petition in their custody and the President under their dominion, to render ineffectual this forced concession to what they scorned as a weak sentimentalism. This suggestion of what was in truth a most extraordinary device--a petition to the President to do what the Court could do itself--could not have emanated from the merciful majority of the Court, which subsequently did sign the fatal document. _They_, at least, were sincere, and, if let alone, would have proceeded immediately to embody their own clemency in a formal sentence, as they had done with O'Laughlin and Arnold, and as they were about to do with Mudd. Had there been but one, or two, or three dissentients, so that they were powerless in the face of two-thirds of the Commission; or even had there been four--a number sufficient to block a death-sentence but not sufficient to dictate the action of the Court, then, indeed, recourse to the clemency of the Executive might have been a natural proceeding. But a clear majority had no need to look elsewhere for a power of commutation which they themselves possessed in full vigor, and which, in all probability, after the first three death-penalties, they had determined to apply in every one of the other cases. Neither could the suggestion have been made by one of the minority, because none of them signed the petition to the last. The four must have been steadfast and uncompromising for blood. The whole scheme proceeded from a quarter outside the Court--a quarter which, on the one hand, was possessed by an overmastering revengeful passion, such as was required to point the five officers to a seeming source of mercy to which they might appeal and thus avoid the exercise of their own prerogative in antagonism to their four brethren, and, on the other hand, harbored some secret knowledge or malign intent that the petition would or should be, in fact, an empty form; from a quarter, in short, where the desire for the condemnation to death of Mrs. Surratt was all-controlling and where the condition of the President was well known. They, who suggested the death-sentence and the petition as a substitute for the milder penalty, were surely all on the side of death, and hoped, if they did not believe, that the prayer of the petition would be of no avail; else they would not have adopted such a circuitous method to do what the five officers could immediately have accomplished themselves. In one word, the contrivers of the device of petition were not those who desired to save the bare life of the convicted she-conspirator, but were those who would be satisfied with nothing less than her death on the scaffold. The suggestion was wholly sinister and malevolent. On the other hand, the majority of the Court did really desire that her punishment should not exceed that of Arnold, O'Laughlin and Mudd, and they certainly would never have had recourse to a petition to the President, had they not been cheated into believing that that method of proceeding was likely to effectuate what they had full power to do. Never would these five soldiers, or any two of them, have given their voices for the death of this woman, had they dreamed for a moment that their signing of the petition was, and was meant to be, but a farce. They would not have played such a ghastly trick under the shadow of the gibbet. Accordingly, when the Commission reassembled, either after recess or adjournment, the reinvigorated counsellors immediately unfolded their plan. We can almost hear their voices, in that upper room of the Old Penitentiary, as they alternately urge on the Court. Holt, making a merit of yielding in the cases of Spangler, of O'Laughlin, of Arnold and of Mudd, denounces the universal disloyalty of the women of the South, and pleads the necessity of an example. Bingham, holding up both mother and son as equally deep-dyed in blood with Booth and Payne, both insinuates and threatens at the same time, that, if "_tenderness_," forsooth, is to be shown because of the age and sex of such a she-assassin, then, for the sake of the blood of their murdered Commander-in-Chief, do not his own soldiers show it, but let his successor take the fearful responsibility. One of the five gives way, and now there is a majority for death. One more appeal! The life of the woman trembles in the balance. Once more to the breach! The supreme reserve is at last brought forward--an argument much in use with Judge-Advocates in cases of refractory courts-martial, as a last resort--that the President will not allow a hair of her head to be harmed, but that _terror_, TERROR, is necessary; in this instance, to force the son to quit his hiding place, the life of the mother must be the bait held out to catch the unsurrendering son. We will hang him and then free the woman's neck. Another vote comes over. Two-thirds at last concur, and her doom is sealed. They sentence "Mary E. Surratt to be hanged by the neck until she be dead." Judge Bingham sits down and embodies the memorable "suggestion" in writing as follows: [It is without address.] "The undersigned, members of the Military Commission detailed to try Mary E. Surratt and others for the conspiracy and the murder of Abraham Lincoln, late President of the United States, &c., respectfully pray the President, in consideration of the sex and age of the said Mary E. Surratt, if he can, upon all the facts in the case, find it consistent with his sense of duty to the country, to commute the sentence of death, which the Court have been constrained to pronounce, to imprisonment in the penitentiary for life. Respectfully submitted." General Ekin copies it on a half-sheet of legal-cap paper, and the five officers, viz.: Generals Hunter, Kautz, Foster and Ekin, and Colonel Tompkins, sign the copy; General Ekin keeping the draft of Bingham as a memento of so gentle an executioner. The Commission then proceeds to the next and last case, and, again exercising its prerogative of clemency, sentences Dr. Mudd to imprisonment for life. It is now Friday noon. The result of the two-days' secret session, consisting of a succinct statement of the verdict and sentence in every case, in the foregoing order, is redacted into a record. The presiding officer signs, and the Recorder countersigns it. It is placed in the hands of the Judge-Advocate, together with the petition to the President. There is an adjournment without day. The members disperse, and the work of the Military Commission is over. CHAPTER VII. THE DEATH WARRANT AND THE EXECUTION. From Friday afternoon, the thirtieth of June, through Saturday, Sunday, Monday and Tuesday, the first four days of July, the record of the findings and sentences remained under the seal of sworn secrecy in the custody of the Judge-Advocate-General. To consummate the work of the Commission, the signature of the President to a warrant approving its action and directing the execution of its judgment was necessary. But, during this interval, as it was given out from the White House, President Johnson was too ill to attend to public business. In the meantime, the city, and even the whole country to its very borders, were agitated by the question: What is to be the fate of Mrs. Surratt? The doom of the male culprits was for the moment forgotten in the intense anxiety over hers. Despite the seven-fold seal of secrecy which covered the proceedings of the secret sessions, whispers of a recommendation of mercy filled the air. In the War Department, the main source of anxiety, at the same time, must have been this superfluous paper--the distressing outcome of an unsuspected sentimental weakness in five of our chosen men. After the final adjournment of the Commission, the unobtrusive, unaddressed half-sheet had been fastened to the record of the sentences by the same narrow yellow silk ribbon which held its own sheets together, and to which it now dangled as a last leaf, or back. A safety-valve to the misplaced chivalry of the Court--it had served its purpose, and was henceforth useless. That it should now turn itself into an implement of evil, minister to the cause of rebellion and assassination, cause "Our Own Andy" to flinch at last and thus the she-fiend of the Bureau escape her doom! It would be treason to suffer it. Upon that resolve, the Triumvirate of Stanton, Holt and Bingham had once for all determined. Indestructible, inconcealable, omnipotent, indeed, must that paper be, which could thwart their united purpose. At length, on the morning of Wednesday, the fifth, Preston King, who, in those days, was a favored guest at the White House, announced in the Judge-Advocate's office that the President was so much better as to be able to sit up; and at a later hour in the day, General Holt, in pursuance of an appointment, started on his solemn errand. The volumes of testimony taken before the Commission by official stenographers, daily reports of which had been furnished, he, of course, did not carry with him. In the interview that was to come, there would be no time and no inclination to read over bulky rolls of examinations and cross-examinations of witnesses. From aught that appears, the President was not expected to read over the evidence, nor was it customary in such cases. It may have been the duty of the Secretary of War or the Attorney-General to scrutinize the testimony, either from day to day or at the close of the trial. But all that the President was supposed to know about the merits of the case appears to have been derived from what any of his Cabinet saw fit to inform him, from what he himself casually and unofficially read, but, especially and principally, from what the Judge-Advocate was now coming to tell him. As to the guilt of the accused, and especially of Mrs. Surratt, his mind had long ago been made up for him by his imperious War Minister, from whose despotic sway he had not as yet recovered energy enough to free himself. He was still in that brief introductory period of his Presidency which may be called his Stanton Apprenticeship; still eager "to make treason odious;" full of threatenings to hang Davis and other Southern leaders. He had not yet awakened from the state of semi-stupefaction into which his sudden and awful elevation seems to have thrown him; and, in this state, he must have been extremely averse to dwelling on any of the circumstances of the assassination to which he owed his high place. The idea of clemency to any one of the band of assassins, male or female, which his War-Secretary's court might convict, would have been intolerable to his imagination and sickening to his sense of security. What Andrew Johnson, at this moment, wanted was to push away from his mind all thoughts of the tragic end of his predecessor, and to allow retributive vengeance to take the most summary course with the least possible knowledge and trouble to himself. And this mood of the presidential mind was well known to the Judge-Advocate-General, as he entered the President's room. He brought with him so much of the record of the proceedings of the Commission as was necessary to the accomplishment of his errand--viz.: the record of the findings and sentences, which the President was to endorse. This document consisted of a few sheets of legal-cap paper fastened together at the top, written on both sides in the fashion of legal papers, _i. e._, beginning at the top of the first page and, on reaching the bottom, turning up the paper and writing on the back from the bottom to top. It was a document complete in itself, the written record ending on the first page of the last half-sheet--thus leaving blank the remainder of that page and the whole of the obverse side; ample room for the death-warrant. To this record, but forming no part of it, the Petition, as we have said, had been affixed, but in such a manner as to be easily separable without mutilation. He must also have brought with him his official report of the trial--styled "The formal brief review of the case," which was subsequently appended to the regular Report of the Judge-Advocate-General to the Secretary of War and transmitted to the Congress in December following--because it is addressed "To the President," is dated "_July 5, 1865_," and is signed "J. Holt." It recites the verdicts and sentences; justifies its brevity by referring to "the full and exhaustive" argument of Judge Bingham; certifies to the regularity and fairness of the proceedings; and recommends the execution of the sentences; _but it makes no mention of the Petition, or any "suggestion" of mercy_. The Judge-Advocate could have anticipated no difficulty in obtaining the approval of the President, conscious as he was that the grounds of such approval were to be furnished to the President by himself. The approval being had, the fixing of the day of execution could cause no disagreement. His only possible source of embarrassment was the petition for commutation. But it would be strange, indeed, if a few apt words could not further emasculate the mild, hypothetical language in which his colleague, Bingham, had seen fit to clothe that paper. He found the President "alone," and (as he himself says) "waiting for" him, "very pale, as if just recovered from a severe illness." "Without delay" he "proceeded to discharge the duty which brought" him "into his presence." What took place at this "confidential interview" (as Holt calls it) can never be precisely known; the distinguished interlocutors having subsequently risen into unappeasable quarrel over the presence or absence of the petition, and given contradictory versions. Whatever the truth may be, it is evident that everything went smoothly at the moment. The Judge-Advocate was not disappointed. No difficulty was encountered. What was done was done quickly and at once. The record may have been read over; but this was hardly necessary, as the bare mention of the several sentences would convey a correct summary of its contents. He may have read the "brief review of the case" he had prepared. As Judge Holt relates, he said to the President, "frankly, as it was his official duty to do," that in his judgment "the proceedings of the Court were regular, and its findings and sentences justified by the evidence, and that the sentences should be enforced." And this was what he had written in his "Brief Review." What more could the successor of the murdered Lincoln want? His approval must have been spontaneous and immediate. As Holt says, "at that time Mr. Johnson needed no urging." Mention may have been made of the curious weakness infecting some members of "our Court" towards the wicked woman, who, as Johnson seems then to have thought, "had kept the nest that hatched the egg;" but only to be scouted by both Judge-Advocate and President as most reprehensible and actually _disloyal_. Their unanimity over the salutary effect of the hanging of this one woman on the female rebels was more than fraternal. And it is probable that no more explicit mention of an actual petition was made by Judge Holt in his conversation with the President than was made in his written report to the President, dated the same day, and which he had with him at the time. The day of execution was fixed upon with the same alacrity. "Make it as soon as possible, so that the disagreeable business may be over; say the day after to-morrow--Friday, the seventh." And, thereupon, everything being agreed upon, Judge Holt turns over the papers to the last page of the record and spreads it upon the table. Beginning, a few lines below the signature of "D. Hunter, President" which closes the record, with the date, "Executive Mansion, July 5th, 1865," "with his own hand" he writes out the death warrant. As this includes the approval of the sentences, the appointment of the day and hour of execution, and the designation of the place of confinement of those condemned to imprisonment, the bottom of the page is reached before he completes his task. If he had turned up the page and continued his writing on the obverse side from the bottom down, as all the foregoing had been written, then the petition of mercy, unaddressed as it was, would have been, if still attached, directly beneath the eye of the President as he signed the death-warrant. But, as now appears from the record itself, the careful Judge-Advocate did not turn up the page from the bottom. On the contrary, reverting to the layman's way of writing papers, he whisks the whole record over, and continues the writing of the death-warrant on the back of the last half-sheet of the record _from the top to the bottom_--by this change of method, either throwing the petition under the leaves of the record, or, if disengaged, leaving it _upside down_. When he has thus finished his draft he shoves it over to the President. The President signs it with tremulous hand. The "confidential interview" is at an end; and the Judge-Advocate, taking up the papers, hurries out and over to the Department of War. At this moment the petition disappears from view. We hear no more of it. Thrust as a convenient succedaneum into the hands of the majority of the Commission, ignored, suppressed or slurred over when before the President, it had served its pitiful purpose. Neither the Adjutant-General nor any of his clerks, appear to have noticed it, although the record must have been copied more than once in his office. It seems to have sunk suddenly into oblivion; its very existence became the subject of dispute. It was omitted from the authorized published proceedings of the Commission. It was omitted from the annual report of the Judge-Advocate. The disloyal paper must have been laid alongside the suppressed "Diary," there to repose unseen until the Impeachment of Johnson and the Trial of Surratt summoned them together into the light of day. * * * * * On the morning of Thursday, the sixth day of July, the six days ominous silence of the War-Department is broken. An order issues from the Adjutant-General's office which, bearing date the day before and reciting the findings and death-sentences of the Commission and the death-warrant of the President, commands Major-General Hancock to see execution done, on the seventh, between the hours of ten and two. This order was read to Mrs. Surratt at noon. She had all along been encouraged to hope. She, herself, had never been able to realize the possibility of a capital condemnation in her own case. And, here, suddenly, was Death, with violence and shame, within twenty-four hours. She sank down under the blow. In faltering accents she protested that she had no hand in the murder of the President, and pleaded for a few days more time to prepare for death. During the remainder of the day and throughout the night, she was so prostrated by physical weakness and mental derangement as to necessitate medical aid to keep her alive and sane. The cries of her daughter could be heard in the still darkness outside the prison. At five o'clock in the morning, the mother (with the three condemned men), was removed to a solitary cell on the first floor, preparatory to the execution. In the meantime, when it first became known that, by the sentence of the Commission and the direction of the President, Mrs. Surratt was to die by the rope on the same scaffold with Payne, Herold and Atzerodt within twenty-four hours, a chill of despairing terror froze the blood of her relatives and friends, a thrill of consternation swept over the body of the citizens, and dark misgivings disturbed even the most loyal breasts. A stream of supplicants at once set in towards the Executive Mansion--not only friends and acquaintances of the condemned woman, but strangers, high-placed men, and women too, who were haunted by doubts of her guilt and could in some degree realize her agony. But even this expiring effort of sympathy, the powers behind the President had anticipated. Apprehensive that Andrew Johnson, at the last moment, might yield to distressing importunities for more time, they had already taken measures that their sick man's wish to hear nothing till all was over should be scrupulously respected. Preston King and General James Lane undertook to keep the door and bar all access to the President during the dreadful interval between the promulgation of the sentence and its execution. It was rumored that they, with a congenial crew, held high revelry around their passive Chief in his private apartments. Be this as it may, no supplicant--friend, acquaintance or stranger--was allowed to gain access to the President. The priests, who had attested upon her trial the good character, the piety and the general worth of their parishioner, instinctively turned their steps to the White House to beg for clemency, or, at least, a respite. They were repulsed from its door. In ghastly mockery, they were told to go to ---- Judge Holt. At last, the daughter of the victim made her way to the very threshold of the President's room. Frenzied with grief she assailed the portal with her cries for admission to plead for her dying mother. She was denied admittance. In the extremity of her despair she lay down upon the steps, and, in the name of God, appealed to the President and to the wardens, only to listen to her prayer. The grim guardians of the door held it shut in her face. Denied, thus, even an appeal to Executive clemency, the friends of the poor woman, as a last most desperate resort, invoked the Constitution of their and her country through the historic writ of Habeas Corpus. On the morning of the day of the execution, they found a judge (Judge Wylie; all honor to his memory!) who had the independence and courage to grant the writ. At half-past eleven, General Hancock appeared before the Judge and made return that by order of the President the Habeas Corpus was suspended and therefore he did not produce the body. The order of the President dated ten o'clock, same morning, was annexed to the return and directed the General to proceed with the execution. No sooner had the guarantees of the Constitution been, thus, finally set at naught, than the cell-doors were thrown open and the prisoners summoned to their doom. As the enfeebled widow raised her trembling limbs from off the coarse mattress which alone separated her body from the stone floor of her dungeon, she strove, in broken words, to assure the soldiers, who had come to bind her arms behind her back and tie cords around her skirts above and below the knee, of her utter, yet helpless innocence. Her confessor, who stood by her until the last, gently pointed out to her the uselessness of such appeals, at such a moment, and directed her hopes towards Heaven. Amid the tolling of the bells, sending a shudder through the silent population of the city, and heralded by the tramp of armed men, the death-march of the doomed woman and the doomed men begins. The still breathing men and still breathing woman are clothed already in their shrouds. As she totters first along the corridor, accompanied by her priest and requiring two soldiers to hold her erect, the very extremity of her helplessness and woe bears witness in her favor. Even the bloody Payne, who walks next behind her, has broken through that stolid indifference to his own fate, so remarkable as to indicate insanity, to clear her from all complicity with the assassination. Herold and Atzerodt, who follow, though themselves speechless with terror, seem to wave her mute acquittal, as they stumble along into the swift-coming Darkness. They reach the prison-yard. They mount the high scaffold. They are seated in four chairs facing the four dangling nooses, while the death-warrant is once more read. Their graves, already dug, are in full sight close by. Their coffins stand by the side of the open graves. They are raised up and pushed forward upon the two drops, Herold and Atzerodt on one, Mrs. Surratt and Payne on the other; the half-conscious woman still supported by the two guards. The ropes are adjusted. The hoods drawn over the face. The signal is given. The two drops fall. Surrounded by the unpitying soldiery, headed by the unpitying Hartranft, the woman and the men hang writhing in the agonies of an ignominious death. When pronounced dead, the bodies are cut down. They are laid out on the top of the coffins. A hurried post-mortem examination is made. And, then, at four o'clock in the afternoon, they are inclosed in the coffins and buried side by side. The soldiers depart with flourish of trumpet and beat of drum. Silence descends on the grounds of the old Arsenal; broken only by the pace of the sentinel set to guard the four corpses. The daughter may beg the stern Secretary to yield up the body of her murdered mother, that she may place it in consecrated ground. But she will beg in vain. And so ended the fell tragedy. And so did brave soldiers avenge the murder of their "beloved Commander-in-Chief." Methinks their beloved Commander-in-Chief, could his freed spirit have found a mortal voice, would have spurned, with indignant horror, the savage sacrifice of a defenseless woman to appease his gentle shade. CHAPTER VIII. WAS IT NOT MURDER? And now what shall be said as to this taking of human life? Maintaining the most rigorous allegiance to the simple unadulterated truth, what can be said? Arraigned at the bar of the common law as expounded by the precedents of centuries, and confronted by plain provisions of the Constitution of the United States, which need no exposition and yet have been luminously expounded; but one thing can be said. Had Mary E. Surratt the right guaranteed by the Constitution to a trial singly and alone, in a regularly constituted civil court, and by a jury of the vicinage, the individuals of which she might select by challenge, both for cause, in all cases, and without cause to a certain number, before she could be legally convicted of any crime whatever, or be lawfully punished by the most trivial loss of property or the minutest injury to limb, to say nothing of the brutal crushing out of her life? That's the unevadable question which the ages put and will continue to put. And upon its precisely truthful answer, depend the character and color of the acts of every person who had lot or part in the execution of this woman. * * * * * On the 21st day of October, 1864--while the war was still raging--Lambdin P. Milligan, a citizen of the United States and a resident of Indiana, was arraigned before a Military Commission convened by the commanding General of that Military District, at Indianapolis, on the following charges preferred against him by Henry L. Burnett, Judge-Advocate of the Department of the West: 1. Conspiracy against the Government of the United States. 2. Affording aid and comfort to the rebels. 3. Inciting insurrection. 4. Disloyal practices. 5. Violation of the laws of war. There were also specifications, the substance of which was that Milligan had joined and aided a secret society, known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and authorities of the United States; had communicated with the enemy; conspired to seize munitions of war in the arsenals, and to liberate prisoners; resisted and encouraged resistance to the draft: at or near Indianapolis, in Indiana, "a State within the military lines of the Army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy." On these charges and specifications, Milligan was subjected to a lengthy trial by this Military Commission which finally found him guilty on all the charges and sentenced him to be hanged. The record was approved by the Commanding General, and then transmitted to President Lincoln, who held it long under advisement, and was so holding it when he was killed. His successor, at about the same time that he summoned the Commission to try Mrs. Surratt, at length approved the findings and ordered the sentence to be executed on Friday, the 19th day of May, 1865. But this object-lesson to the Commission sitting at that date in the old Penitentiary was intercepted. On the 10th of May, Milligan brought the record before the United States Circuit Court by a petition for his discharge, and, the two judges differing upon the main question of the jurisdiction of the Commission, the cause was certified under the statute to the Supreme Court of the United States; in deference to which action the President suspended the execution. The argument before that high tribunal coming on in the winter of 1865-66, a great array of counsel appeared upon both sides; David D. Field, James A. Garfield and Jeremiah S. Black for the prisoner, and Attorney-General Speed and Benjamin F. Butler for the United States. The counsel for the Government followed the same line as did Judge Bingham in his argument on the "Conspiracy Trial;" the counsel for the prisoner on their side, only enlarging, emphasizing and enforcing the argument of Reverdy Johnson. At the close of the term the Court unanimously decided that the Military Commission had no jurisdiction to try Milligan; that its verdict and sentence were void; and ordered the defendant discharged. At the next term, the Court handed down two opinions--one the opinion of the Court, read by Judge Davis, in which four of his colleagues concurred, and one by Chief-Justice Chase, in which three of his colleagues concurred. The two opinions agreed that, as matter of law, the President could not of his own motion authorize such a Commission, and that, as matter of fact, the Congress had not authorized such a Commission; and therefore they were at one in their conclusion. But they differed in this; that, whereas the majority of the Court held that not even the Congress could authorize such a Court, the minority, while agreeing that the Congress had not exercised such a power, were of opinion that such a power was lodged in that branch of the Government. The attempt has often been made to distinguish the case of Mrs. Surratt from that of Milligan by alleging that Washington at the time of the assassination was within the theatre of military operations, and actually under martial law, whereas Indiana at the time of the Commission of Milligan's alleged offenses was not. Now, it must be admitted that at the time of the murder of President Lincoln the war had swept far away from the vicinity of the Capital. There had been no Confederate troops near it since Early's raid in the summer of 1864, and no enemy even in the Shenandoah Valley since October. It must also be admitted, and was, in fact, proved on the trial, that the civil courts were open and in full and unobstructed discharge of their functions. As for the reiterated affirmation of Judge Bingham that the courts were only kept open by the protection of the bayonet; that is precisely what was affirmed by General Butler, in his argument before the Supreme Court, to have been the fact in Indiana. None of the counsel in the Milligan case claimed that a Military Commission could possibly have jurisdiction to try a simple citizen in a State where there was no war or rumors of war. "We do fully agree, that if at the time of these occurrences there were no military operations in Indiana, if there was no army there, if there was no necessity of armed forces there, * * * then this Commission had no jurisdiction to deal with the relator, and the question proposed may as well at once be answered in the negative." They contended, as the very basis of their case, that the acts of Milligan "took place in the theatre of military operations, within the lines of the army, in a State which had been, and then was constantly threatened with invasion." And, in fact, the record in so many words so stated, and the statement was uncontroverted by the relator. General Butler with great earnestness put the question: "If the Court takes judicial notice that the courts are open, must it not also take judicial notice how, and by whose protection, and by whose permission they were so open? that they were open because the strong arm of the military upheld them; because by that power these Sons of Liberty and Knights of the American Circle, who would have driven them away, were arrested, tried and punished. "If the soldiery of the United States, by their arms, had not held the State from intestine domestic foes within, and the attacks of traitors without; had not kept the ten thousand rebel prisoners of war confined in the neighborhood from being released by these Knights and men of the Order of the Sons of Liberty; there would have been no courts in Indiana, no place in which the Circuit Judge of the United States could sit in peace to administer the laws." Moreover, the opinion of the minority Judges bases their contention that Congress had the power, if it had chosen to exercise it, to authorize such a Military Commission, upon this very fact. "In Indiana, for example, at the time of the arrest of Milligan and his co conspirators, it is established by the papers in the record, that the State was a military district; was the theatre of military operations, had been actually invaded, and was constantly threatened with invasion. It appears, also, that a powerful secret association, composed of citizens and others, existed within the State, under military organization, conspiring against the draft, and plotting insurrection, the liberation of the prisoners of war at various depots, the seizure of the State and national arsenals, armed co-operation with the enemy, and war against the national government." Not one of which circumstances (except that it was a military district) can be truthfully predicated of the District of Columbia at the time of the assassination. As for actual martial law, there was no declaration of martial law claimed for the City of Washington, other than the proclamation of the President which applied as well to Indiana, and, indeed, to the whole North. We are justified, therefore, in saying, that the Supreme Court of the United States, in this case of Milligan, pronounced the final condemnation of the whole proceedings of the Military Commission which tried and condemned Mary E. Surratt; declaring, with all the solemn force of a determination of the highest judicial tribunal known to this nation, that every one of its acts, from its creation by the President to its transmission of its record of doom to the President, was in direct contravention of the Constitution of the United States and absolutely null and void. That illustrious Court, speaking by Judge David Davis, thus enunciates the law: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism." "From what source did the Military Commission * * derive their authority?" "It is not pretended that the commission was a court ordained or established by Congress." "They cannot justify on the mandate of the President; because he is controlled by law and has his appropriate sphere of duty, which is to execute not to make the law; and there is no unwritten criminal code to which resort may be had as a source of jurisdiction." "The laws and usages of war can never be applied to citizens in states which have upheld the authority of the government and where the courts are open and their processes unobstructed. And no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said it has never been provoked by the state of the country even to attempt its exercise." "All other persons," (_i. e._, all other than those in the military and naval service) "citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity." "It is claimed that martial law covers with its broad mantle the proceedings of this Military Commission." "Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration." "Martial law can never exist where the courts are open, and in the proper and unmolested exercise of their jurisdiction. It is also confined to the locality of actual war." Had the swift process by which this unfortunate woman was hurried to the scaffold been interrupted by a stay to allow a review by the same high tribunal which rescued Milligan from the jaws of death, it cannot be doubted that in her case, as in his, the same conclusions would have been reached, viz.: 1st. "One of the plainest constitutional provisions was, therefore, infringed when" (Mary E. Surratt) "was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior." 2nd. "Another guarantee of freedom was broken when" (Mary E. Surratt) "was denied a trial by jury;" that, in her case, as in his, the Court would have set the prisoner free; there would have been no hanging, no felon's grave, and not even an ulterior attempt at a constitutional trial. For it is remarkable that although the Military tribunal which tried Milligan pronounced him guilty of crimes deserving a traitor's death; the seeming strength of the evidence must have melted away, strangely enough, when subjected to the prospective investigation of constitutional courts, as there was not even a subsequent effort on the part of the Government to call him to account. Let us add, as a final corollary to this exposition of the Constitution by the Supreme Court, the following remark: that the ground and argument employed by Attorney General Speed in his opinion upon the right of the President to order the trial of the alleged assassins by Military Commission, and by Judge-Advocate Bingham in his address to that Commission, involve a _reductio ad absurdum_, or, rather, a _reductio ad monstrosum_, that is, a _Reductio ad absurdum quia monstrosum_. For, that ground and that argument, invoked to uphold and sanction the trial of civilians by military commissions, necessarily and inevitably go farther, and proclaim the right of President Johnson, alone, of his own motion and without the interposition of a formal court, whether military commission or drum-head court-martial, to have commanded the immediate execution of every person whom he might believe to be guilty of participation in the assassination of his predecessor or in the presumed attempt upon himself. The conclusion forced upon us, therefore,--the one only thing to be said--is, that the hanging of Mary E. Surratt was nothing less than the crime of murder. Murder, not only in the case of the private soldiers who dragged her to the scaffold and put the rope about her neck; they, at least can plead the almost irresistible force of military discipline. But murder, also, in the case of the Major-General whose sword gave the signal for the drop to fall. General and soldiers are in the precise position, before the law, of a mob of Lynchers carrying out the judgment of a Lynch court. Murder, not only in the case of the one military officer who superintended the details of the execution. He, too, though with much less force, can plead that he was the mere bailiff of what he believed to be a competent Court. But murder, also, on the part of the nine military officers and the three advocates who tried and sentenced this woman to death. These men, in the forum of the law, stand in the precise position of any nine policemen steered by any three police attorneys in the city of New York, who should dare to try, convict and sentence to death a citizen of that city. Murder, not only on the part of the Commission and its lawyers; they too might, possibly, plead--though with still diminishing force--that, although they were warned and took the awful responsibility, still they believed in their competency. But murder, also, in the President of the United States, who appointed the court, approved its findings, and commanded the execution of its sentence. He stands before the law in the same position as though, sweeping aside all empty forms, he had seized a sword and with his own hand cut off the head of the woman, without the mockery of a trial. In our frame of government, there is surely no room for such a twi-formed barbarian-despot, as a President having the power to pick out from the army, of which he is the commander-in-chief, the members of a court to try and punish with death, at his option, any one of the citizens, for an abortive attempt on his own life. And it was murder, not only in the case of the President; he, too, but with scarcely audible voice, might plead the coercion of his situation--sitting as he did in the seat of the murdered Lincoln. But it was murder, also, in the Secretary of War, who initiated the iniquitous process, pushed on the relentless prosecution, shut his own ears and the ears of the President to all pleas for mercy, presided like a Moloch over the scaffold, and kept the key of the charnel-house, where, beside the unpitied carcasses of the reputed ruffians forced upon her in her ordeal of torture and in the hour of death, the slaughtered lady lay mouldering in her shroud. Here, at least, the plea of mitigation exhales in a cry like that of Payne, "I was mad!" Weigh the extenuating circumstances in whatever scale you may; extend as much mercy as possible to those who showed no mercy in their day of power--still, the offense of every one and all, who had hand, part or lot in this work of death, contains every element which, under the most rigorous definition of the law, makes up the Crime of Murder. The killing was there. The unlawful killing was there. The premeditated design to effect death was there. The belief of the perpetrators, that they had a right to kill, or that they were commanded to kill by an overruling power, before a court of law avails not a whit. Ignorance of the constitution as well as the law excuses no man, be he civilian or soldier, President or assassin, War-Minister or Payne. Murder it essentially was, and as such it should be denounced to the present and future generations. Garrett Davis told no more than the exact truth when he declared in his place in the Senate of the United States: "There is no power in the United States, in time of war or peace, that can legitimately and constitutionally try a civilian who is not in the naval or military service of the United States, or in the militia of a State in the actual service of the United States, by a court-martial or by a military commission. It is a usurpation, and a flagitious usurpation of power for any military court to try a civilian, and if any military court tries a civilian and sentences him to death and he is executed under the sentence, the whole court are nothing but murderers, and they may be indicted in the State courts where such military murders are perpetrated; and if the laws were enforced firmly and impartially every member of such a court would be convicted, sentenced and punished as a murderer." Although the actual guilt of any of the victims constitutes no legal defense to this fearful charge, yet as the unquestioning obedience which the soldier yields, as a matter of course, to the commands of his superior officer must alleviate, if it do not wipe away, the guilt of the members of the Commission, in the forum of morals; so the ascertainment that the sufferers on the scaffold and in prison, in fact, deserved their doom, cannot but blunt the edge of our condemnation of the iniquity of the trial, as well as weaken our pity for the condemned and our sense of shame over the tyrannous acts of the government. A word or two, therefore, will be appropriate in respect to the sufficiency of the testimony to establish the guilt of the accused. I. As to Arnold and O'Laughlin, it may be said in one emphatic word, that there was no evidence at all against them of complicity in the plot to kill. The letter of Arnold to Booth shows, when fairly construed, that, if the writer had conspired with the actor, he conspired to abduct; and, also, for the time being, even that conspiracy he had abandoned. He was at Fort Monroe for the two weeks prior to the assassination. His confession, used on the trial against himself not only but also against O'Laughlin because he was mentioned in it as present at a meeting of the conspirators, was a confession only of a conspiracy to abduct which had been given up. The condemnation of these two men was brought about by the conduct of Judge Bingham, to which we have drawn attention, in systematically shutting his eyes to the existence of any conspiracy to capture, and employing the letter and confession as proof that both these men were guilty of conspiracy to murder. II. As to Dr. Mudd, the evidence leaves it doubtful whether or not he recognized Booth under his disguise on the night he set his broken leg, and therefore whether he may have been an accessory after the fact or not; but the testimony of the informer Weichman, by which chiefly if not solely the prosecution sought to implicate the doctor in the conspiracy to murder, was greatly damaged, if not completely broken down, by the proof on the part of the defense that Dr. Mudd had not been in Washington from November or December, 1864, until after the assassination. III. As to Payne, his guilt of the assault on Seward in complicity with Booth was clear, and confessed by himself. He was but twenty years of age, of weak mind, entirely dominated by the superior intellect and will of Booth. He claimed he acted under the command of his captain. He was so stolidly indifferent during the trial as to raise suspicion of his sanity, and he repeatedly expressed his wish for the termination of the trial so that he might cease to live. IV. As to the boy Herold, it was manifest that, as the mere tool and puppet of Booth, he was acquainted beforehand with the design of his master to kill the President, but there is no evidence that he aided or abetted Booth in the actual assassination in any way except to participate in his flight after he had got out of Washington. V. As to Atzerodt, for whom there appears to have been no pity or sign of relenting, it is nevertheless a fact, that the testimony to his lying in wait for Andrew Johnson is so feeble as to be almost farcical. The poor German was a coward and never went near Johnson. There is no circumstance in the evidence inconsistent with his own confession, that he was in the plot to capture, knew nothing of the design to murder until 8 o'clock on the evening of the 14th, and then refused to enact the part assigned him by Booth. Indeed, it would appear as if the Commission, by a sort of proleptic vision of the future course of the President in his desperate struggle with the Congress, in grim irony actually hung Atzerodt because he did _not_ kill Andrew Johnson. VI. And as to Mrs. Surratt, the only witnesses of importance against her are Weichman and Lloyd. Without their testimony the case for the prosecution could not stand for a moment. Weichman, a boarder and intimate in her house, the college chum of her son, and, equally with him, the associate of Payne, Atzerodt, Herold and Booth, who, frightened almost to death at the outlook, was swearing, under a desperate strain, to clear his own skirts from the conspiracy and thus save his threatened neck:--Weichman's testimony before the Commission, even at such a pass, is for some reason quite vague and indefinite, and only becomes deadly when supplemented by Lloyd's. This man Lloyd it was who, in fact, furnished the only bit of evidence directly connecting Mrs. Surratt with the crime. He testifies to two conversations he had with her--one on the 11th and the other on the 14th of April--when she alluded to the weapons left weeks before at the hotel at Surrattsville owned by her and kept by Lloyd--on the 11th, that the "shooting-irons" would be wanted soon; on the 14th, that they would be called for that night. Lloyd, himself, however, admits, and it is otherwise clearly shown, that on the 14th he was so drunk as hardly to be able to stand up. Lloyd, also, was deeply implicated in the conspiracy to capture if not to assassinate. He had aided the fugitive assassins to escape, had kept their weapons hidden in his house, and he had, for two days after his arrest, denied all knowledge of Booth and Herold's stopping at his hotel at midnight after the murder. He had been placed in solitary confinement and threatened with death. His nervous system, undermined by debauchery, gave way; his terrors were startling to witness and drove him well-nigh mad, and, at last, in a moment of distraction, he turned against Mrs. Surratt and her son. Like Weichman's, his, also, was the frenzied effort of a terror-stricken wretch to avoid impending death by pushing someone forward to take his place. Reverdy Johnson, at the close of his plea to the jurisdiction of the court, let fall the following words, no less weighty for their truth than their force: "This conclusion in regard to these witnesses must be, in the minds of the Court, and is certainly strongly impressed upon my own, that, if the facts which they themselves state as to their connection and intimacy with Booth and Payne are true, their knowledge of the purpose to commit the crimes and their participation in them, is much more satisfactorily established than the alleged knowledge and participation of Mrs. Surratt." Moreover, the testimony of both these witnesses, suborned as they were alike by their terrors and their hopes, is perfectly reconcilable with the alternative hypothesis, either that the woman in what she did was an innocent dupe of the fascinating actor, or that she was unaware of the sudden transformation of the long-pending plot to capture, of which she might have been a tacit well-wisher, into an extemporaneous plot to kill. Much stress was laid by Mr. Bingham on her solemn denial of any prior acquaintance with Payne when confronted with him on the night of her arrest. But it is more than probable that the non-recognition was unsimulated, because of the disguise and pitiable plight of the desperado, who had been hidden in the mud of the suburbs three days and three nights, and, also, because the non-recognition was shared with her by the other ladies of the house. Besides, that a woman, caught in the toils in which Booth and her own son had unwittingly involved her, under the terror of recent arrest and imminent imprisonment, should have shrunk from any acknowledgment of this midnight intruder, even to the extent of falsehood, certainly is in no wise incompatible with innocence. These are the only circumstances by which Mrs. Surratt is brought nearer than conjectural connection with the assassination, and the force of these is greatly weakened by the testimony in her defense. It is neither necessary, nor relevant to this exposition, to enter into a lengthy discussion upon the _pros_ and _cons_ of her case. Her innocence has been demonstrated in a more decisive manner by subsequent events, and stands tacitly admitted by the acts of the officers of the government. Few impartial hearers would have said then, and no impartial readers will say now, that the testimony against her is so strong as to render her innocence a mere fanciful or even an improbable hypothesis. No one can say that a jury, to a trial by which she was entitled under the Constitution, would have pronounced her guilty, and every one will admit that had her sentence been commuted to imprisonment for life, as five of her judges recommended, she would have been pardoned with Arnold, Spangler and Mudd, and might have been living with her daughter to-day. The circumstances of the whole tragedy warrant the assertion that, had John H. Surratt been caught as were the other prisoners, he, and not she, would have been put upon trial; he, and not she, would have been condemned to death; he, and not she, would have died by the rope. If he was innocent, then much more was she. Mary E. Surratt, I repeat, suffered the death of shame, not for any guilt of her own, but as a vicarious sacrifice for the presumed guilt of her fugitive son. PART II. THE VINDICATION. CHAPTER I. SETTING ASIDE THE VERDICT. When the President of the United States, the Secretary of War, the Military Commission, the Judge-Advocates, and the Executioner-General had buried the woman against whose life the whole military power of the Government, fresh from its triumph over a gigantic rebellion, had been levelled;--buried her broken body deep beneath the soil of the prison-yard, in close contact with the bodies of confessed felons; flattened the earth over her grave, replaced the pavement of stone, locked the door of entrance to the charnel-house and placed the key in the keeping of the stern Secretary;--they may have imagined that the iniquity of the whole proceeding was hidden forever. But, _horribile dictu!_ the ghost of Mary E. Surratt would not down. It troubled the breast of the witness Weichman. It haunted the precincts of the Bureau of Military Justice. It pursued Bingham into the House of Representatives. It blanched the laurels of the great War Minister. Politics, history and the very vicissitudes of human events seemed subservient to the vindication of this humble victim. Hardly had the delivery of the prisons of Washington, which followed the close of the trial, taken place, before the man who, as he himself swore, always had been treated as a son by the woman he betrayed, began to make advances to her sorrowing friends. He pretended to make confession of his perjury. He told a friend that his testimony would have been very much more favorable had it not been dictated to him by the officers who had him in charge; that the meeting of Lloyd and Mrs. Surratt was accidental, as she and he (Weichman) had already started for home before Lloyd returned, and only turned back because the buggy was discovered to be broken. The traitor soon discovered that he made no headway by such disclosures, but only met with a sterner repulse and a deeper loathing. His troubled soul then turned to another quarter. It has been stated that his testimony on the trial was somewhat indefinite and inconclusive. Complaints had been uttered by the officers conducting the prosecution. It was proved upon a subsequent occasion that one of these officers had actually threatened the witness that he would hang as an accomplice in the assassination did he not make his evidence more satisfactory. It appeared, also, that the Secretary of War had promised to protect and take care of him. Driven back by Mrs. Surratt's friends from his attempt at propitiation, Weichman resolved that he would yet earn his reward by retouching his former testimony so as to make it more definite and telling. He saw, at last, that to save himself from everlasting ignominy he must, as far as in him lay, make sure of the guilt of his victim. Actuated by these or similar motives, he, on the 11th day of August, 1865, wrote out, and swore to, a statement in which he, by a suspicious exercise of memory, detailed conversations with Mrs. Surratt and significant incidents, all pointing to complicity with Booth, no mention of which had been made on the trial, and which this candid witness stated "_had come to my_ (his) _recollection since the rendition of my_ (his) _testimony_." This affidavit, containing (if true) more evidence of the guilt of Mrs. Surratt than his whole testimony on the trial, but, on the other hand, drawn up to suit himself without fear of cross-examination--he transmitted to Colonel Burnett, who, as though he, too, distrusted the sufficiency of the evidence against the dead woman as it had been actually given on the trial, was careful to append the _ex parte_ statement to the published report. Weichman, at length, gets his reward in the shape of a clerkship in the Custom House at Philadelphia. But the final breaking down of the fabric of testimony against the leaders of the rebellion, as instigators of the assassination, threw consternation into the Bureau of Military Justice and the Cabinet. Jefferson Davis was still confined in Fort Monroe, and two companies of United States soldiers, who had fought and shed each other's blood in their eagerness to be the first to seize the fugitive, were already quarreling over the $100,000 reward for his arrest as an accomplice of Booth. Clement C. Clay, for whose arrest $25,000 reward had been offered, as another accomplice, was also still in the hands of the authorities. Jacob Thompson, George N. Sanders and Beverly Tucker, for the arrest of each of whom $25,000 had been offered, were still at large. Every one of these men, it should be borne in mind, had been pronounced guilty by the military board which had condemned Mrs. Surratt. John H. Surratt, her son, for whose capture an enormous reward had been offered both by the Government and by the City of Washington, and whom the Military Commission had condemned as the go-between of the President of the Confederacy and his agents in Canada in the instigation of the murderous conspiracy, and also as the active aider and abettor of both Booth and Payne in the perpetration of their bloody crimes; he, too, had so far eluded all efforts to find even his whereabouts. It is only fair to presume that the astute lawyers connected with the Bureau of Military Justice must have had serious misgivings from the first, concerning the testimony of the spies, Montgomery, Conover and others, going to implicate Davis and the Canadian Rebels in the assassination. Such testimony was hearsay or secondary evidence at best; and they could have cherished no hope that such loose talk and the fragmentary repetition of letters heard read would ever be allowed to pass muster by an impartial judge in a civil court. And they had reason to believe that public opinion would not tolerate the experiment of another military commission. As early as July, 1865, an attempt was made to buy the papers of Jacob Thompson, among which it was supposed were the criminatory letters of Davis; and Attorney-General Speed was dispatched with $10,000 government money to effect the purchase. William C. Cleary, for whom $10,000 reward had been offered as one of the conspirators, and who had just been found guilty by the Military Commission, was to deliver the letters and receive the money. Speed met Cleary at the Clifton House, but the latter, in the meanwhile, had seen in a newspaper a portion of the testimony before the Military Commission implicating him, and he utterly refused to give up the papers, as he had to rely upon them, as he said, to vindicate himself. The shadows thus began to darken over the credibility of the corps of spies that the Bureau had employed. Indictments for perjury against Montgomery, Conover and other paid witnesses began to be talked of. Friends, and enemies as well, of the imprisoned ex-President began to clamor for his trial or release. Even the implicated agents in Canada showed a bold front, and professed a willingness to meet the terrible charge if guaranteed a trial by jury. A jury! A jury of twelve men! Trial by jury! If there was anything that could shake the souls of the members of the Bureau of Military Justice, it was to hear of trial by jury. It was a damnable institution. It impeded justice. It screened the guilty. It was beyond control. It could not be relied on to convict. And yet it was to this tribunal they foresaw they must come. In September, 1865, embarrassing news arrived at the Department of State. The consul at Liverpool informed the American Minister at London that John H. Surratt was in England and could be extradited at any time. Here was the villain who was, with Booth, the prime mover of the conspiracy and the active accomplice of Booth and Payne in their work of blood. At least, so the Military Commission found, who hung his mother in his stead. And yet the United States Government informed Mr. Adams, and Mr. Adams so informed the consul, that the Government did not intend to prosecute. On the 24th of November ensuing, the War Department, by general order, revoked the "rewards offered for the arrest of Jacob Thompson, Beverly Tucker, George N. Sanders, William S. Cleary and John H. Surratt." Where now was the redoubtable Bingham who, over and over again, had assured the Commission he guided of the unmistakable guilt of all these persons? The whole theory of the Secretary of War, which he had preconceived in the midst of the panic following the assassination, that the murder of the President was the outcome of a deep-laid and widespread conspiracy, of which Jefferson Davis was the head and Booth and Payne the bloody hands--this theory, which the Bureau of Military Justice, aided by Baker and his detectives, had so sedulously labored to establish, and which Judge Bingham had so persistently pressed upon the nine military men who composed the Court, to the exclusion of any such hypothesis as a plot to capture--this preconceived theory all at once fell to the ground. The perjured spies, who had been the willing and paid tools to build it up, were about to be unmasked and their poisoned fangs drawn. After no great interval, Conover was, in fact, convicted of perjury in another case, and sentenced to imprisonment in the Albany penitentiary. The whole prosecution of the so-called conspirators, from its inception to its tragic close, turned out to have been founded on an enormous blunder. The findings of the Commission were falsified. Whatever the guilt of the doomed victims, they were not guilty of the crime of which they were convicted. The terrible conspiracy, stretching from Richmond to Canada, and from Canada back to Washington, involving statesmen and generals, and crowning the wickedness of rebellion with the Medusa-head of assassination, shrank into the comparatively common-place and isolated offense of the murder of Lincoln and the assault upon Seward, suddenly concocted by Booth, on the afternoon of the 14th of April, in wild despair over the collapse of the rebellion. In such a predicament, the hanging of Mrs. Surratt could not have been a pleasing reminiscence to the Secretary of War, to Judge-Advocate Holt, or to the hangers-on of the Bureau of Military Justice. At such a moment they certainly had no use for her son John. On the 12th of November, Preston King, who held one side of the door of the White House while the daughter of Mrs. Surratt pleaded for admission, walked off a ferry-boat into the Hudson River, with two bags of shot in the pockets of his overcoat, and was seen no more. This event might have passed as a startling coincidence, to be interpreted according to the feelings of the hearer, had it not been followed by the suicide of Senator James S. Lane, who held the other side of the door, and who, on the 11th day of July, 1866, blew his brains out on the plains of Kansas. That these two men had together stood between the President and the filial suppliant for mercy, in a case of life and death, and that, then, within a year, both had perished by their own hands, aroused whispers in the air, caused a holding of the breath and a listening, as if to catch the faint but increasing cry of innocent blood, coming up from the ground. When the Congress met in December, 1865, the leaders of the dominant party were in a fierce and bitter humor. The Rebellion had been suppressed, the South subjugated and its chiefs captured, yet no one--not even the arch-traitor Davis--had been hung. And, more deeply exasperating still, the man they had elected Vice-President, and who had thus succeeded the martyred Lincoln, upon whom their hopes had been fixed to make treason odious, to hang the leaders higher than Haman, and to set aside the humane policy of reconstruction his predecessor had already outlined and substitute a more radical and retributive method--this man, whose precious life had been providentially spared from the pistol of the assassin to be the Moses of the colored people, and for harboring any such blasphemous purpose as lying in wait for him, a Court, appointed by himself and whose sentence he himself had approved, had hung a bewildered German--why this man had already shown himself a renegade, was bent on a general amnesty, appeared to have forgotten the assassination, was already hobnobbing with southern traitors, and was attempting to carry out a policy of reconstruction in the South, the result of which could be nothing less than the dethronement of the party who had brought the war for the Union to a triumphant end. These men resolved that such treachery should be balked at whatever cost. Ignorant as yet of the tainted character and of the break-down of the evidence adduced to show Confederate complicity in the assassination, the House of Representatives passed resolutions calling for the trial of Jefferson Davis for treason and for the other crimes with which he was charged; the ill-starred Bingham, once again in the House, insisting that the Confederate Chief should be put upon trial before a military tribunal for the same offense of which his former court had found him guilty in his absence. The House appointed a committee to investigate the complicity of Davis and others in the assassination, and in July, 1866, through its chairman, Mr. Boutwell, made a report, followed by a resolution, "that it is the duty of the executive department of the Government to proceed with the investigation of the facts connected with the assassination of the late President without unnecessary delay, that Jefferson Davis and others named in the proclamation of President Johnson of May 2d, 1865, may be put upon trial," which was adopted _nem. con._ In this action, little as they reeked, these radical politicians were the unconscious tools of that Nemesis which stalks after lawlessness and triumphant crime. This resolution, and the news that John H. Surratt had been betrayed by one of his comrades in the Papal Zouaves into the hands of the Roman authorities, who had detained him to await the order of the American Government, and that the prisoner had escaped from his guard and fled to Malta, forced the Department of War to revoke the order of November, 1865, withdrawing the reward for the arrest of the fugitive. Meanwhile the great contest over the reconstruction of the South waxed fiercer and fiercer. Congress, during this session, became farther and farther alienated from the President, so that when that body met in December, 1866, the reckless majority in both Houses united in the resolve to get rid of Andrew Johnson, not indeed by the bloody method employed by Booth, but by the no less efficient, though more insidious and less bold, expedient of impeachment by the House and conviction by the Senate. No sooner had Congress convened than Mr. Boutwell made an attack upon the Executive for its dilatory action in the arrest of John H. Surratt, stating that he had reason to believe that the Government knew where the assassin was the May before. A committee appointed to investigate the matter made a report just at the close of the session obliquely censuring the Executive Department for its lack of diligence in effecting the arrest. On January 7th, 1867, the famous Ashley introduced his resolutions impeaching Andrew Johnson. The Judiciary Committee, to which they were referred, took testimony during the winter and made a report at the close of the session that it was unable to complete the investigation, and handed it over to the Fortieth Congress. That Congress met immediately at the close of the Thirty-ninth, and the testimony already taken was referred to the Judiciary Committee of its House, which proceeded with the matter during the spring and summer, and in November, 1867, after the recess; with the final result of a failure to pass the resolution of impeachment reported by a bare majority of the committee. In process of this investigation all sorts of accusations and charges were made against the President. His enemies now employed the very same weapons against him which had been employed to convict the alleged assassins of his predecessor and the alleged conspirators against his own life. General Baker and his detectives, Conover and his allies, appear once more upon the scene. They actually invaded the privileged quarters of the White House and stationed spies in the very private apartments of the President. This time, however, they are ready to swear, and in fact do swear, not to having seen letters from Jefferson Davis to his agents in Canada advising assassination, but letters from Andrew Johnson to Davis squinting in that direction. They actually charged the President with being an accomplice in the assassination of Abraham Lincoln. Forgetting that a human being had been hung for lying in wait to kill Andrew Johnson as a part of a general conspiracy to murder the heads of the Government, these desperate men propose to impeach the President for being an accomplice in his own attempted murder. Ashley openly denounced him, in the House of Representatives on the 7th of March, 1867, as "the man who came into the Presidency through the door of assassination," and alluded to the "dark suspicion which crept over the minds of men as to his complicity in the assassination plot," and "the mysterious connection between death and treachery which this case presents." Ashley had private interviews in the jail with Conover and Cleaver, who were confined there for their crimes, and they assured him of the guilt of Andrew Johnson. They furnished him with memoranda and letters purporting to show that Andrew Johnson and Booth were in communication with each other before the murder of Lincoln, and that Booth had said before his death that if Andrew Johnson dared go back on him he would have him hung higher than Haman. To such preposterous stuff, from professional perjurers, did the zealous Ashley seriously incline. It was during this investigation that the evidence given by Secretaries Seward and Stanton and by Attorney-Generals Speed and Stansbery, demonstrated the utter futility of an attempt to establish complicity in the assassination on the part of Davis, Thompson and the rest, by witnesses who had been shown, in other cases, to be unworthy of a moment's belief. While the impeachers were in the very act of pursuing the President as an accomplice in the murder of Abraham Lincoln, while the mighty Bingham, who had so eloquently defended President Johnson before the Military Commission against the charge of usurpation of power, and so bitterly denounced Jefferson Davis for alluding to Johnson as "The Beast," now, with a complete change of tune, was clamoring for the impeachment of "his beloved Commander-in-Chief;"--Jefferson Davis, himself, is brought, by direction of the Secretary of War, in obedience to a writ of habeas corpus, before the United States Court at Richmond; there, without a word of remonstrance, transferred to the custody of the civil authority; and forthwith discharged on bail, Horace Greeley, who had never seen him before, becoming one of his bondsmen. Since that day in May, 1867, no attempt has ever been made to call the ex-President of the Southern Confederacy to account as one of the conspirators in the murder of Lincoln. Clay had been let go on parole as long before as April 19th, 1866; his property was restored to him in February, 1867; and proceedings under an indictment found against him for treason and conspiracy, indefinitely suspended on the 26th of March of the same year. Thompson and Sanders and Tucker returned to their country and appeared unmolested amongst us. Jefferson Davis died recently full of years and honors. At the death of Thompson, the flags of the Interior Department were lowered half-mast. Tucker was appointed to office not long ago by President Harrison. And all this, notwithstanding the Judge-Advocate had assured the Military Commission that the guilt of these men was as clear as the guilt of Booth or of Surratt, notwithstanding the Military Commission under his guidance so found, and, had these men been present before that tribunal, would doubtless have hung them on the same scaffold with Mrs. Surratt. It was during this same investigation, that the diary of Booth, which had been so carefully concealed by the War Department and the Bureau of Military Justice from the Military Commission, was unearthed. Its publication produced a profound sensation, as it made clear the reality of a plan to capture the President; a plan, which had been blasted by the collapse of the Rebellion and, only at the last moment and without consultation, arbitrarily superseded by a hurried resolution to kill. When produced by Judge Holt before the committee, its mutilated condition gave rise to a terrible suspicion. Holt, himself, and Stanton were confident the book was in the same condition as when they first saw it. Colonel Conger, also, though not positive, thought it was unchanged since he took it from the dead body of Booth. But, to the great wonder of everybody, the distinguished detective, General Baker, testified, and stuck to it with emphasis when recalled, that, when he first examined the diary before it was lodged with the Secretary of War, there were no leaves missing and no stubs, although the diary, as exhibited to the committee, showed by means of the stubs remaining that sixteen or twenty leaves had been cut or torn out. The disclosures made by the production of the diary, together with the fact of its suppression, stirred the soul of General Butler; and, in this way, it came about that the ghost of Mrs. Surratt stalked one day into the House of Representatives. Judge Bingham, in his rollicking way, was upbraiding General Butler for having voted for Jefferson Davis fifty times as his candidate for President, and slurring his war record by calling him "the hero of Fort Fisher;" when, suddenly, at the petrific retort of his adversary that "the only victim of the gentleman's prowess was an innocent woman hung upon the scaffold!" the spectre stood before him, forcing, as from "white lips and chattering teeth," the exclamation of Macbeth: "Thou canst not say I did it!" "Look to the true and brave and honorable men who found the facts upon their oaths and pronounced the judgment!" he retorted, clutching at the self-soothing sophistry of the murderer of Banquo, ignoring the fact that he himself was a part of the tribunal and virtually dictated the judgment. Another discovery was made by the Judiciary Committee in the "Article" which, as recorded in his diary, Booth had left behind him for publication in the National Intelligencer. John Matthews, a fellow actor and an intimate friend of the assassin, testified that on the afternoon of the 14th of April Booth had met him in the street and left with him a letter directed to that newspaper, to be delivered in the morning. The witness was on the stage of the theatre that night at the time the fatal shot was fired, and, in the confusion that followed, he called to mind the communication. Hurrying to his lodgings he opened the envelope, read the letter, and, fearing to be compromised by the possession of such a document, burnt it up. The substance of the letter, as near as Matthews could recollect, was that for a long time he (Booth) had devoted his money, time and energies to the accomplishment of an end, but had been baffled. "The moment has at length arrived when my plans must be changed. The world may censure me for what I do; but I am sure that posterity will justify me." And the communication was signed (all the names being in the hand-writing of Booth): "Men who love their country better than gold or life. J. W. Booth, ---- Payne, ---- Atzerodt, ---- Herold." The significance of this piece of testimony was negative. The name of Surratt was not there. One suggestive circumstance was called out in the testimony of Secretary Seward and General Eckert. It appeared that Payne before his trial had talked with General Eckert about his motives and movements in the assault upon the disabled Secretary of State, the particulars of which conversation Eckert had related to Seward, after the recovery of the latter from his wound, and had promised to reduce to writing. Among other things, Payne had said that he and Booth were in the grounds in front of the White House on the night of Tuesday, the 11th of April, when Abraham Lincoln made his speech of congratulation on the fall of Richmond and the surrender of Lee; and that on that occasion Booth tried to persuade him to shoot the President as he stood in the window, but that he would take no such risk; and that Booth, turning away, remarked: "That is the last speech he will ever make." Such an incident is consistent only with the theory that the assassination plot was concocted at the last moment as a forlorn hope, and that, if there had been any conspiracy, it was a conspiracy to capture. It is easy to see why the Bureau of Military Justice suppressed this testimony also, because, although it bears hard upon Payne himself, and Herold, and possibly John Surratt, it renders it highly improbable that Mrs. Surratt was aware of any design to kill. Even such a fragmentary review, as the foregoing, of the public history of the two years succeeding the execution--which any reader may complete, as well as test, for himself by referring to the Congressional Globe of that period, to the printed reports of the Committee, and to the leading newspapers of the day--is sufficient to indicate how the general tendency of events, and every event in its place, appear to have conspired to the accomplishment of one result,--the setting aside, in the public mind, of the verdict of the Military Commission in the case of Mrs. Surratt. This was not done by a direct assault upon that tribunal, or upon its mode of procedure; not even upon the character of the witnesses against the particular culprit, nor upon the weakness of the case made against her. These points of attack were all passed by, and the verdict was taken on the flank. The condemnation of the woman was subverted by the _wind_, so to speak, of passing events. The irrepressible conflict between the President and the Congress; the consequent schism in the very ranks of the triumphant conquerors; the insane charge against Andrew Johnson of complicity in a conspiracy against his own life, supported by the incredible statements of the very witnesses who were responsible for the charge of complicity against Jefferson Davis and others; the final and complete exposure of the fiction of a conspiracy to assassinate, either by the Confederate authorities, or anybody else; and the true, historical character of the Assassination of Abraham Lincoln;--all combined to shake the edifice of guilt, which the Bureau of Military Justice had so carefully built up around their helpless victim, upon such an aerial foundation. Whilst the gradual abatement of that furious uncharitableness, which in the hey-day of the war could find nothing not damnable in the Southern people, and no secessionist who was not morally capable either of murder or of perjury in its defense or concealment, was, surely but imperceptibly, clearing up the general atmosphere of public opinion, and thus preparing for the cordial reception of such a measure of retributive justice, as Time, with his sure revenges, was daily disclosing to be more and more inevitable. The Milligan decision dissipated the technical jurisdiction of the Commission. But lawyers could still distinguish, and the hyperloyal could still maintain the essential rightfulness of the verdict. But the explosion of the great assassination conspiracy; the nol-pros. of the awful charge against Jefferson Davis, Clement C. Clay, Jacob Thompson, and their followers--a crime, which, if capable of proof, no government on earth would have dared to condone--discredited forever the judgment of the Military Commission, reopened wide all questions of testimony, of character, of guilt or innocence, and summoned the silent and dishonored dead to a new and benignant trial. CHAPTER II. REVERSAL UPON THE MERITS. The new trial was in fact at hand. In the summer of the year 1867, the interest excited by the investigation of the Judiciary Committee of the House of Representatives, referred to in the last chapter, suddenly became merged into the intenser and more widespread interest excited by the trial of John H. Surratt in the Criminal Court of the District of Columbia. Surratt, after escaping from his captors in Italy by leaping down a precipice, fled to Malta and thence to Alexandria, where, on the 21st of December, 1866, he was recaptured and taken on board the United States vessel "Swatara." In this vessel, bound hand and foot, the prisoner arrived at Washington on the 21st of February following. Thus the radicals in Congress, impelled by their growing enmity to the President over the reconstruction contest, by scattering abroad sinister intimations that the cause of his remissness in bringing to punishment the accomplices of the convicted assassins was fear for himself of a full investigation of the assassination, succeeded at last in forcing the Executive Department, apprehensive, as it had good reason to be, of the shadows which any future trial in the civil courts was likely to reflect back upon the Military Commission, and aware of the breaking down of the case against the Canadian confederates and Jefferson Davis, face to face with the necessity of ratifying the conviction of the mother by securing the conviction of the son. On the one hand, the radicals, in blind ignorance of the true inwardness of affairs, clamored for the trial, in the hope that the guilt of the prisoner's supposed accomplices, Davis and Company, and possibly of the President himself, might be detected. On the other hand, the administration, now that the man had been forced upon its hands, knowing the futility of the hope of its enemies, pushed on the trial in the hope that, with its powerful appliances, a result could be obtained which would vindicate the verdict of the Military Commission. No one on either side, however, so much as dreamed of renewing the iniquity of a trial by court-martial. Amid the silence of the Holts and the Binghams and the Stantons, Surratt was duly indicted by a grand jury for the murder of "one Abraham Lincoln," and for conspiring with Booth, Payne, Atzerodt, Herold and Mary E. Surratt to murder "one Abraham Lincoln," which conspiracy was executed by Booth. There was no averment about the traitorous conspiracy to murder the heads of Government, in aid of the rebellion; nor were the names of Dr. Mudd, O'Laughlin, Arnold or Spangler, then undergoing punishment on the Dry Tortugas, inserted as parties to the conspiracy; nor was any mention made of Seward or Johnson or Grant, as among the contemplated victims. All was precise and perspicacious, as is required in pleadings in the civil courts. The loose, vague, indefinite and impalpable charges permissible, seemingly, on military trials, gave place to plain and simple allegations, such as an accused person might reasonably be expected to be able to meet. On Monday, June 10, 1867, while the investigation before the Judiciary Committee of the House was still going on, while the sensation produced by the sight of Booth's diary and by Matthews' disclosures was still fresh, while the echoes of the encounter of Bingham and Butler still lingered in the air, the momentous trial came on. Great and unprecedented preparations had been made by the prosecution. Again the country was ransacked for witnesses, as in the palmy days of Baker and his men. Again the Montgomeries and other Canada spies haunted the precincts of the District Attorney's office, willing as ever to swear to anything necessary to make out the case for the prosecution. Even the voice of Conover was heard, _de profundis clamavi_, from his dungeon cell. The Bureau of Military Justice started into active life, and Holt and his satellites bestirred themselves as though fully conscious of the impending crisis. Indeed, every one of these officials, from the President and the Secretary of War down to the meanest informer and hired hangman, who had had anything to do with the trial and execution of Mary E. Surratt, felt as if he, too, was to be put on trial in the trial of her son. A Court recognized in, and drawing its life and jurisdiction from, the Constitution was to act as a court of appeal to review the process and judgment of that extra-constitutional tribunal, which had, summarily and without legal warrant, put a free American woman to a felon's death. A Daniel in the shape of a jury--a common law jury--a jury of civilians--unadorned by sword, epaulette or plume--a jury guaranteed by the Bill of Rights--a Daniel had come to judgment! The Shylocks of the days of arbitrary power dropped their sharpened knives and ejaculated, "Is that the law?" Great, assuredly, must have been the flurry of the once omnipotent Bureau, when it was ascertained that the tribunal before which it must come could not be "organized to convict;" that there could be no soldiery around the Court, no shackles on the prisoners or the witnesses for the defense, no prosecuting officers in the jury room. Everything must be done decently and in order, with the same calm dignity, unruffled composure, the same presumption of the innocence of the accused, as though the murdered man had been the humblest citizen of the land. One great advantage, however, the prosecution managed to secure. A Judge was selected to preside whom they could rely on, as "organized to convict." But this was the sole reminiscence of the unbridled reign of the military only two years before. A jury of twelve intelligent men, some of them the best citizens of the District, was speedily obtained to the evident satisfaction of both the people and the prisoner,--and the succeeding Monday, the 17th, the struggle began. As we have given the names of the members of the Court which tried the mother, we may be pardoned for giving the names of the jurors who tried the son. Although there were no major-generals among them, they are entitled to the honor of being within, and not without, the ægis of the Constitution. The jurors were W. B. Todd, Robert Ball, J. Russell Barr, Thomas Berry, George A. Bohrer, C. G. Schneider, James Y. Davis, Columbus Alexander, William McLean, Benjamin Morsell, B. E. Gittings, W. W. Birth. They were thus spoken of by the District Attorney: "It is a matter of mutual congratulation that a jury has been selected agreeable to both parties; the representatives of the wealth, the intelligence, and the commercial and business character of this community; gentlemen against whose character there cannot be a whisper of suspicion. I would trust you with my life and my honor; and I will trust you with the honor of my country." The scene which the court-room presented, when the Assistant District Attorney arose to open the case for the United States, afforded a speaking contrast to the scene presented at the opening of the Military Commission. The Court was not held in a prison, and there was an entire absence of the insignia of war. The doors of the court-room were wide open to the entrance of the public, not locked up in sullen suspicion, and the keys in the hands of the prosecuting officer. The counsel for the prisoner confronted the jury and the witness-stand upon an equal line with the counsel for the United States; and there was neither heard, seen, nor surmised, in the words or bearing of Edwards Pierrepont, the leading counsel for the prosecution, any of the insolence and supercilious condescension shown in the words and bearing of John A. Bingham. As the prisoner entered the court and advanced to the bar, no clank of fetters jarred upon the ear; and, as he sat at his ease by the side of his counsel, like a man presumed to be innocent, the recollection of that wan group of culprits, loaded down with iron, as they crouched before their imperious doomsmen, must have aroused a righteous wrath over the barbarous procedure of the military, in comparison with the benign rules of the civil, tribunals. The atmosphere surrounding the court and the trial seemed, also, to be free from passion and prejudice, when contrasted with the tremendous excitement and the thirst for blood, which permeated the surroundings of the Military Commission. Although the Bureau of Military Justice had busied itself in the prosecution, and thrust its aid on the office of the District Attorney; although the whole weight of the federal administration was thrown in the same direction to vindicate, if possible, the signature of the President to the death warrant of the victims of his military court; and notwithstanding the presence upon the bench of a judge "organized to convict:" still, so repellant to partial passion were the precincts of what might fitly be styled a temple of justice, a neutral spectator might feel reliance that in that chamber innocence was safe. But there was one sentiment hovering over the trial and dwelling in all bosoms, which clothed the proceedings with a peculiar awfulness. All felt that the dead mother was on trial with the living son. She had been executed two years before for the same crime with which he was now charged. And, as he stood in the flesh, with upraised hand, looking at the jury which held his life in its hands, it required no great effort of fancy to body forth the image of his mother, standing beside him, murmuring from shadowy lips the plea of not guilty, amid the feeble repetitions of which, to her priest, she had died upon the scaffold. To convict her son, now, by the unanimous verdict of twelve men, and punish him according to law, would go far to condone the unconstitutional trial and illegal execution of the mother. Whereas, on the other hand, the acquittal of her son of the same crime, by the constitutional tribunals of the country, would forever brand the acts of the Military Commission as murder under the forms of military rule. This dread alternative met the prosecution at the threshold of the trial, oppressed them with its increasing weight during its progress, and tarried with them even at its close. It appeared in the indictment, where the name of the mother, as one of the conspirators, was associated with the name of her son. It appeared in the examination of the jurors, when Judge Pierrepont endeavored to extract from them whether they had formed or expressed an opinion as to the guilt or the innocence of the prisoner, not only, but also as to the guilt or the innocence of his mother. It appeared during the taking of testimony, where evidence bearing upon the guilt of Mrs. Surratt alone was admitted at all times as evidence against her son. It appeared in the argument of the District Attorney, when he compares the mother of the prisoner to Herodias and Lucrezia Borgia, and "traces her connection with the crime" and "leaves it to the jury to say whether she was guilty;" where he pleads, like Antony, in behalf of the members of the Military Commission that they were "all honorable men," and were not to be blamed for obeying the orders of the President. It appeared in the arguments of the counsel for the prisoner, when Mr. Merrick taunted the Government that they were pressing for a verdict to "vindicate the fearful action they had committed;" when he appealed to the jury to "deal fairly by this young man," "even if the reputation of Joseph Holt should not have the vindication of innocent blood;" when he invoked the spirit of Mrs. Surratt as a witness for her son, and rebuked the prosecution for objecting to the admission of her dying declaration when they were putting her again on trial though dead; when Mr. Bradley charged that for four weeks and more they had been trying Mrs. Surratt and not her son, and denounced Weichman and Lloyd, avowing that "the proof against her was not sufficient to have hung a dog" and was "rotten to the core." It appeared in the speech of Judge Pierrepont, when he flourished the record of the Military Commission before the jury, and asserted that the recommendation of Mrs. Surratt to mercy was attached to it; in his avowal of his belief in her guilt; in his extolling the jury as a tribunal far more fit for the trial of such crimes than any military court; and in his covert threat that the people would punish the City of Washington by the removal of the Capitol, if the jury, by their verdict, did not come up to the high standard erected for them. And, lastly, it appeared in the charge of the Judge, which is a model of what a one-sided charge ought to be. It opens with the words of the Old Testament: "Whoso sheddeth man's blood, by man shall his blood be shed." Then follows a sneer at the "sentimental philosophers," who were opposed to capital punishment. Then the Court inveighs against some imaginary advocates, who argued that to kill a king was a greater crime than to kill a president; and then casts an imputation upon the integrity of the decision in the Milligan Case, as "predicated upon a misapprehension of historic truth," and that therefore "we could not perhaps have looked for a more rightful deduction," "all loyal hearts" being "unprepared for such an announcement." The Judge, then, holds that the Court will take judicial cognizance that the crime charged was the murder of the President of the United States, and a more heinous offense than the murder of a simple individual. He, then, complacently sets aside the rule of Sir Matthew Hale, implicitly followed since, as he himself admits, by "writers and judges seeming contented with his reasons or indisposed to depart from his principles," as "not very satisfactory to my (the Judge's) mind;" and accordingly he declares that, in felonies of such high grade, as in cases of treason, there can be no accessories before the fact, but all are principals; and, to support this conclusion, he then cites and details at length two cases, apparently overruling Sir Matthew beforehand; (as he says) "reported in that book of highest authority known among Christian nations, decided by a judge from whose decision there can be no appeal and before whose solemn tribunal all judges and jurors will in the great day have their verdict and judgments passed in review." One, the case "of Naboth and Ahab, contained in the 21st chapter of the First Book of Kings," the other, "that of David and Uriah, recorded in the 11th chapter of Second Samuel;" at the end of the statement of which case the Judge remarks, "this judgment of the Lord was not that David was accessory before the fact of this murder, but was guilty as the principal, because he procured the murder to be done. It was a judgment to the effect that he who does an act by another does it himself, whether it be a civil or a criminal act." This extraordinary deliverance closes with an echo of Judge Pierrepont's warning to the jury, to uphold by their verdict the District of Columbia, as a place for "the public servants, commissioned by the people of the nation, to do their work safe and sacred from the presence of unpunished assassins within its borders." It would be foreign to our purpose, as well as tedious to the reader, to examine in detail the testimony given on this trial. One conclusion--and that is the important thing--is certain. It is true, beyond the shadow of a doubt, that the prosecution made an incomparably stronger case against Surratt than was made against his mother. They had but one culprit at whom to direct their aim, and they made a far more desperate and thorough-going effort to convict, because of the known unreliability of a jury to do what the prosecution might tell them to do without the aid of proof. Before a Military Commission, tossed about by the passions of its members and steered by Judge-Advocates, the accusers could afford to be careless of gaps in their scheme of proof, missing links in the chain of circumstantial evidence. Not so now and here. Vehement affirmation without evidence availed nothing. Curses against treason, traitors, disloyalty, apostrophes to the imperiled Union, tears over the beloved Commander-in-Chief, could fill no void in the testimony. Of course, there was no such outrage against not only the elementary rules of evidence, but against ordinary decent fairness, as an attempt to introduce testimony of the horrors of Libby Prison and Andersonville; but the door looking in that direction was opened as wide as possible by the eager Judge. All the material testimony given upon the "Conspiracy Trial" against Mrs. Surratt, not only, but also against Payne, Herold, Atzerodt, Arnold and O'Laughlin, was reproduced here. The direct testimony on the part of the United States occupied from June 17th to July 5th, and in that period eighty-five witnesses were examined. On the Conspiracy Trial, the direct case consumed the time from May 12th to May 25th, and about one hundred and thirty witnesses were examined against the eight accused persons, not only, but also against the eight accessories, headed by Jefferson Davis, included in the charge, the testimony ranging over the whole rebellion and including Libby, Andersonville, Canada, St. Albans, and projected raids on New York, Washington and other cities. Every witness, whose testimony on the former trial had the remotest bearing upon the question of the guilt or innocence of Mrs. Surratt, once more showed his face and retold his story. Lloyd was there, compelled, despite his superstitious reluctance to speak against a woman now she was dead, to rehearse the tale which his terrors had evolved out of his drunken imagination. This time, however, his sottish memory or failure of memory, his fright at the time of his arrest, his repeated denials of the visit of Booth and Herold, his temptations and bribes to accuse his landlady, were, under the keen cross-examination of the counsel for the prisoner, fully exposed. Weichman "came also:" this time with his story carefully elaborated, touched and retouched here and there, and written down beforehand. He had been engaged for three or four months in aiding the prosecution, had prepared a carefully detailed statement for the use of the Assistant District Attorney, and now openly acknowledged that "his character was at stake" in this trial, and that he "intended to do all he could to help the prosecution." He had conned over and over again the report of his evidence on the Conspiracy Trial, had corrected it to meet objections subsequently made and to eliminate discrepancies and contradictions, and had thus brought its several disjointed parts into some logical sequence; he then had added to it the incidents and conversations disclosed for the first time in the affidavit sent to Colonel Burnett, which was appended to the published report of the trial, to which allusion has been made; and, now, in the final delivery of his deadly charge, coolly averring that his memory was much more distinct now than at the time of the former trial two years ago, he, with a superadded concentrated venom, flavored his narrative with a few damning incidents never heard of before--one, the most poisonous of all, that on the evening of the fatal 14th, while Booth was about his murderous work, Mrs. Surratt was pacing her parlor floor begging her pious boarder "to pray for her intentions." This time, however, the witness did not escape unscathed. When he emerged from the skillful hands of Mr. Bradley, his malicious and sordid _animus_ laid bare,--his self-contradictions, his studied revisions, his purposeful additions to his testimony, exposed--his intimacy with the conspirators, his terrified repentance, his abject self-surrender and his cowardly eagerness to shift his peril upon the head of his protectress,--and then his simulated remorse and his later recantation--all made clear--he was an object of loathing to gentlemen; a stumbling block to the philanthropist; to the indifferent, an enigma; and to the common man, a perpetual provocation to a breach of the peace. Twelve witnesses testified that they saw John H. Surratt in Washington on the 14th of April, only one of whom had testified to that effect on the other trial. It is curious now to discern how the memory of the witnesses, it may be unconsciously, swerved under pressure toward the mark of identification. The witnesses for the defense established that the prisoner was in Elmira on the afternoon of the 13th, made it more than probable he was there on the 14th, and almost certain he was there on the 15th. The prosecution, under the force of this proof, suddenly conceded his presence in Elmira on the 13th, and then, by the accident of a special train and the testimony of a ferryman whom the notorious Montgomery unearthed in the very crisis of the emergency, contrived with much straining to land him in Washington at 10 o'clock on the morning of the fatal day. Any calm observer, reading the account of the trial now, can see plainly that the truth is, the prisoner had not been in Washington since the 3rd of April. The production of Booth's diary by the prosecuting officers was forced upon them by the popular indignation over its suppression before the Military Commission; otherwise, it is clear they would not have been guilty of such a mistake in tactics as its introduction as a part of the case for the United States. Its opening sentences--"Until to-day nothing was ever thought of sacrificing to our country's wrongs. For six months we had worked to capture. But our cause being almost lost something decisive and great must be done"--settled the question of a plot to kidnap suddenly given up; and the testimony of Weichman indicated the hour of abandonment. That every conceivable effort to obtain the conviction of the prisoner was made, and that a most formidable array of circumstances was marshalled against him, compared to which the two disconnected pieces of evidence which were so magnified against his mother seem weak indeed, will be controverted by no sane person. From June 10th to August 7th--nearly two months--the contest went on. On the last-mentioned day, which was Wednesday, Judge Fisher delivered his remarkable charge, and a little before noon the jury retired. At one o'clock in the afternoon of Saturday, the 10th, after a session of three days and three nights, a communication was received from the jury to the effect that they stood as at first, nearly equally divided, that they could not possibly agree, and the health of several of their numbers was becoming seriously impaired. The Court, notwithstanding the protest of the prisoner, discharged the jury, and the prisoner was remanded to jail. There he did not long remain, however. Every one recognized the futility of another trial. The strength of the proof of the prisoner's presence in Elmira on the day of the assassination wrought a reaction of public opinion in his favor. The administration was glad to escape with less than an unequivocal condemnation. The Bureau of Military Justice was silent. John H. Surratt was quietly let go. This obscure occurrence, the discharge of John H. Surratt, which caused not a ripple on the surface of human affairs, nevertheless constituted a cardinal event; for it worked a national estoppel. When that young man stepped forth from the threshold of the prison, to which the United States had brought him in irons from Egypt across the Mediterranean and the Atlantic, not to follow his mother to the scaffold and a felon's grave, but to walk the earth a living, free man,--the innocence of the mother was finally and forever established by the universal acknowledgment of all fair men. No condemnation of the Military Commission could be so heavy, and at the same time so indubitably final, as the simultaneous conviction arrived at by all men, that if the son had been tried by such a tribunal he would assuredly have been put to death, and that if the mother had been reserved to calmer times and the tribunal guaranteed by the Constitution to every man and woman, she would now have been living with her daughter, instead of lying, strangled to death, beneath the pavement of a prison. CHAPTER III. THE RECOMMENDATION TO MERCY. The worst was still behind. It was left to Time to disclose the astounding fact, that all the military machinery of the War Department, its Bureaus, its Court, its Judge-Advocates, its unconstitutional, anti-constitutional and extra-constitutional processes, would not have compassed the death of this helpless woman, had not the prosecutors, in the last extremity, called in the help of Fraud. It has been narrated in the chronological order of events, how five members of the Military Commission were, in all probability, beguiled into the abdication of their own power of commutation and did, as matter of fact, sign a paper "praying" the President, "if he could find it consistent with his sense of duty to the country," to commute the death sentence of Mrs. Surratt; how that the paper may have been carried to the President by Judge Holt and have been present at the confidential interview when the death warrant was composed; and how that Judge Holt, in drafting the death warrant, went out of his way to so write it out, as in fact, if not by design, to withdraw from the eye of the President, as he signed it, this paper praying him to withhold his signature. But it should be borne in mind that all this was shrouded in the deepest secrecy. That there had been any hesitation among the members of the Commission in fixing the sentence of Mrs. Surratt--any more than in the cases of Herold, Atzerodt and Payne--much more that it had been found necessary to resort to a petition to the President, was entirely unknown to the public at large. As to what had taken place in the sessions of the Court when the sentences were made up, every member thereof and the three Judge-Advocates were sworn to secrecy; and, outside these officers, the knowledge of the petition was confined to the Secretary of War (possibly the Attorney-General) and one or two subordinates in the War Department. The record of the findings and sentences, to which the petition was attached, was kept from the official reporters, and not a soul outside a close coterie in the War Department was allowed to set eyes on it. In the recital of the death sentences in the order of the Adjutant-General directing their execution, the sentence of the woman differed in no respect from the three sentences of the men which preceded it. So far as the public eye could discover, there was not a gleam of mercy for the woman in the bosom of the Commission. It is true, that even before the execution there were rumors that the Court had united in a recommendation to mercy, and it was stated in the newspapers of the 6th and 7th of July that five members of the Commission had signed such a recommendation and the whole Court concurred in it. It is also certain, that almost immediately after the execution the story sprang up that the President had never been allowed to see the recommendation which the Court had addressed to him. But all these statements remained without corroboration from any authentic source, and could not stand before the indubitable facts of the sentence, its approval by the President, and its summary execution. The single indication that in all these reports the paper is miscalled "a recommendation to mercy" shows of itself that the real nature of the secret was well kept. In November, 1865, there appeared a volume compiled by Benn Pitman styled "The Recorder to the Commission," claiming to be "An authentic record of the trial of the assassins of the late President," to which was prefixed a certificate "to its faithfulness and accuracy" by Colonel Burnett, who had been assigned by Judge Holt to superintend the compilation and "made responsible for its strict accuracy." This work, so authenticated, was on its face intended by its compiler to be a complete history "for future use and reference" of the proceedings of the Commission, from the order of the President convening it to the approval of the President of its findings and sentences. It had for frontispiece portraits of the conspirators and a map of portions of Maryland and Virginia showing the route of Booth, and for afterpiece a diagram of the stage of Ford's theatre and a diagram of the streets in its vicinity. Beside matter strictly of record, such as the testimony and the findings and sentences, it included the arguments of all the counsel, the approval of the President, the order changing the place of imprisonment from Albany to the Dry Tortugas, the proceedings under the writ of habeas corpus in the case of Mrs. Surratt; and (in the appendix) the opinion of Attorney-General Speed; army instructions in ten sections; a proclamation of President Lincoln; a poisonous affidavit of Weichman, inclosed in a letter to Colonel Burnett; and an affidavit of Captain Dutton, who took Dr. Mudd to the Dry Tortugas, giving the confessions the Captain swears the Doctor made on the way, sent to General Holt in obedience to his request for such information. Nevertheless, amid all this wealth of illustration, there is not the faintest allusion to any such thing as a recommendation to mercy, in the volume. On the one hand, Pittman may not have seen the paper. His findings and sentences are obviously taken from the order of the Adjutant-General, and not from the original record, as he puts them in the same order, which is not the order of the record. But, if he never saw the paper, it must have been purposely kept from his knowledge, and thus from the knowledge of the public, by some person interested in its suppression. And Colonel Burnett, who had himself attached the paper "at the end" of the record, instead of certifying to the "faithfulness and accuracy" of a compilation omitting it, ought rather to have insisted that so important and interesting a document, about the existence of which so much talk had arisen, be at last given to the world. On the other hand, if Pitman knew of the paper, he certainly would not have voluntarily left it out of his book for the reason, he himself felt constrained afterwards to assign, that "it formed no part of the proceedings, was not mentioned in open session;" since he had given room to so much matter, not of record, solely for the purpose of adding interest and completeness to his work, and this critical document could add so much to the one and its absence detract so much from the other. Moreover, in December, the report of the Judge-Advocate-General to the Secretary of War appeared, in which the trial was reviewed, and to which the report to the President, dated July 5th, 1865, was appended. But in both the existence of the petition was ignored. Whatever may have been the true inwardness of these significant omissions, their inevitable effect was to convince the mass of the people of the non-existence of a recommendation to mercy; and the petition of the five officers might have reposed in silence in the secret archives of the War Department, had it not been for the alienation of the President from the party which had elected him, his gradual gravitation towards his own section, and finally his revolt from the sway of Stanton. During this period, the rumors that the Court had recommended Mrs. Surratt to the clemency of the Executive and that the paper had never reached the Executive, coupled with stories that from the close of the trial to the hour of the execution the President had been kept under confinement and in a state of semi-stupefaction by a band of reckless partisans who were bound there should be no clemency, grew louder and louder. But they were never traceable to any reliable source. In fact, the coolness which had been for a long time growing between Andrew Johnson and Edwin M. Stanton did not break out into an open rupture until as late as the month of March, 1867. The other members of the Cabinet, which Johnson had inherited from Lincoln, who disagreed with Johnson on the question of Reconstruction, Harlan, Dennison and Speed, resigned, on account of that disagreement, in the summer of 1866; but Stanton stayed on. When the Tenure of Office bill was passed by the Congress in February, 1867, the Secretary of War was still so much in accord with the President as to unite with the other members of the reconstructed Cabinet in an emphatic condemnation of the bill as unconstitutional, and to be asked by the President to draft his veto message. But, on the passage of that Act over the veto, Stanton, thinking his tenure of office secure, at last threw off the double-faced mask he seems to have worn in every Cabinet to which he ever had the honor to belong. From that time he stood alone in the Cabinet, irreconcilable in his hostility to every move of his Chief, in open league with his Chief's active enemies, and determined to remain where he was not wanted and could only act as a hindrance and a spy. In this perilous state of affairs, a secret like that of the petition of the five officers burned towards disclosure. Yet, so far as is at present ascertainable, no authoritative affirmation of the existence of such a paper, on the one hand, and no authoritative denial that it had been presented to the President, on the other, had yet been made. Upon such an arrangement of combustible material, the trial of John H. Surratt acted like a spark of fire. On the second day (June 11th, 1867), during the impanelling of the jury, Mr. Pierrepont, the leading counsel for the United States, alluding to the rumors then flying about, took occasion to predict that the Government on that trial would set all these false stories at rest. Among other things he said: "It has likewise been circulated through all the public journals that after the former convictions, when an effort was made to go to the President for pardon, men active here at the seat of government prevented any attempt being made or the President being even reached for the purpose of seeing whether he would not exercise clemency; whereas the truth, and the truth of the record which will be presented in this court, is that all this matter was brought before the President and presented to a full Cabinet meeting, where it was thoroughly discussed; and after such discussion, condemnation and execution received not only the sanction of the President but that of every member of his Cabinet." The testimony in the case closed, however, and the summing up began, and there had been no attempt at a fulfillment of this prediction. On Thursday afternoon, August 1st, Mr. Merrick, the junior counsel for the prisoner, then nearing the close of his address, twitted the prosecution with this breach of its promise in these words: "Where is your record? Why didn't you bring it in? Did you find at the end of the record a recommendation to mercy in the case of Mrs. Surratt that the President never saw? You had the record here in Court. "Mr. Bradley: And offered it once and withdrew it? "Mr. Merrick: Yes, sir; offered it and then withdrew it. "Did you find anything at the close of it that you did not like? Why didn't you put that record in evidence, and let us have it here?" Stung by the necessity of making some answer to this defiant challenge, Mr. Pierrepont on the moment sent for the record. And in response to the summons, Judge-Advocate Holt, who naturally must have followed the prosecution and trial with the most absorbing anxiety, on that very afternoon brought the record "with his own hand," "with his own voice" told its history, in the presence of "three gentlemen," to Mr. Pierrepont, and then left the papers with him. On the succeeding day, August 2nd, Mr. Bradley, the senior counsel of the prisoner, renewed the attack: "It was boastfully said in the opening of this case that they would vindicate the conduct of the law officers of the Government engaged in the conspiracy trials. They would produce Booth's diary; they would show that the judgment of the court was submitted to the Cabinet and fully approved; that no recommendation for mercy for Mrs. Surratt--that no petition for pardon to the Government--had been withheld from the President. Is it so?" The next morning, Saturday, August 3d, Mr. Pierrepont began his address to the jury. Having kept possession of the record since Thursday afternoon, and having been made acquainted with its history by Judge-Advocate Holt in such an impressive manner, he, thus, in his exordium, at last, redeemed the promise of the prosecution: "The counsel certainly knew when they were talking about that tribunal" (_i. e._ the Military Commission), "and when they were thus denouncing it, that President Johnson * * * ordered it with his own hand, that President Johnson * * * signed the warrant that directed the execution, that President Johnson * * * when that record was presented to him, laid it before his Cabinet, and that every single member voted to confirm the sentence, and that the President with his own hand wrote his confirmation of it, and with his own hand signed the warrant. I hold in my hand the original record, and no other man as it appears from that paper ordered it. No other one touched this paper, and when it was suggested by some of the members of the Commission that in consequence of the age and the sex of Mrs. Surratt, it might possibly be well to change her sentence to imprisonment for life, he signed the warrant for her death with the paper right before his eyes--and there it is (handing the paper to Mr. Merrick). My friend can read it for himself." This is the first appearance in public of the precious record. On Wednesday, July 5th, 1865, Andrew Johnson put his name to the death-warrant written on its back by Judge Holt. And, now, two years after, emerging from its hiding-place, it is flung upon a table in a court-room by the counsel for the United States. Even now it seems to be destined to a most unsatisfactory publication. For the counsel of the prisoner decline to look at it, because (as Mr. Merrick subsequently explained), "he mistrusted whatever came from the Judge-Advocate-General's office;" because it "had been carefully withheld until all opportunity had passed for taking evidence in relation to it;" and because the official report of the trial contained no recommendation of mercy. The mysterious roll of paper, consequently, lies there unopened, until Judge Holt comes to reclaim it that same afternoon; and that officer is careful, when receiving it back, to repeat over again, before other witnesses, the same history of the document, he had told before to the counsel for the prosecution, and which that counsel had just retold to the jury. But that had been said and done which must blow away the atmosphere of unwholesome secrecy which had so long enveloped this addendum to the record. The explicit declaration of the counsel for the United States, made in a crowded court-room on so celebrated a trial, with the "identical paper" in his hand, that the President had laid the record before his Cabinet and "every single member voted to confirm the sentence," and that the President had signed the death-warrant with the "suggestion" of commutation "right before his eyes," was immediately published far and wide, and must have been read on Sunday, the 4th, or at latest on Monday, the 5th, by the President himself. And the President was certainly astounded. By a most singular providence, Judge Holt himself, in a letter written to himself, at his request, by his chief clerk, and published by him in 1873 for another purpose, has furnished independent proof that the President was now for the first time startled into sending for the record. Here is what Chief Clerk Wright says: "On the 5th day of August, 1867, Mr. Stanton, the Secretary of War, sent for me, and in the presence of General Grant asked me who was in charge of the Bureau in your absence. I informed him Colonel Winthrop. He requested I should send him over to him, which I did. The Colonel returned and asked me for the findings and sentence of the conspiracy trial, telling me he had to take it to the President. On taking the portion of the record referred to from the bundle, I found, from the frequent handling of it, several of the last leaves had torn loose from the ribbon fastening, and to secure them I put the eyelet in one corner of it." The Judge-Advocate-General, though in court on Saturday getting back the record and retelling its history, was absent, it would appear, from his office on Monday, or was considered absent by Stanton, who it also appears was still Secretary of War and in communication with Johnson. It was thought best to employ a deputy to carry the papers to the President. Holt, probably, had no stomach for another "confidential interview," with the identical record in his hand. Let Andrew Johnson himself tell what followed. The statement is from his published reply to Holt in 1873, and was made with no reference to, and apparently with no recollection of, the foregoing incidents of the John H. Surratt trial: "Having heard that the petition had been attached to the record, I sent for the papers on the 5th day of August, 1867, with a view of examining, for the first time, the recommendation in the case of Mrs. Surratt. "A careful scrutiny convinced me that it was not with the record when submitted for my approval, and that I had neither before seen nor read it." It may have been only a coincidence, but on this very day, Monday, August 5th, 1867, and necessarily after the sending for the record, because that was done through the Secretary of War, the following interesting missive was dispatched by the President to that member of his Cabinet: "Sir: Public considerations of a high character constrain me to say that your resignation as Secretary of War will be accepted." Stanton immediately replied: "Public considerations of a high character constrain me not to resign before the next meeting of Congress." And, on the 12th, he was suspended from office. But Andrew Johnson was not the only interested personage who read the explicit declaration of Mr. Pierrepont. The statement that every member of the Cabinet voted to confirm the sentence of Mrs. Surratt, with the record, including, of course, the recommendation, before them, must have been read also by William H. Seward, Edwin M. Stanton, Hugh McCulloch, and Gideon Welles, the members of that "full Cabinet" who still remained in office. They surely knew the truth of the statement, if it was true, or its falsity, if it was false. If it was true, is it not perfectly inconceivable that the President, conscious that these four of his confidential advisers had seen the record and voted to deny the petition, would have dared to enact the comedy of sending for the record, and then brazenly assert that the petition had not been attached to it when before him, and that he had neither seen nor read it? And if he had been guilty of so foolhardy a course of action, now was the time for the Judge-Advocate to fortify the declaration which he had inspired Mr. Pierrepont to make, by appealing to these members of the Cabinet to confront their shameless chief with their united testimony, and forever silence the "atrocious accusation." From his course of proceeding at a later day, it is not probable that he made any such attempt. At all events, he got no help from Seward, from McCulloch or from Welles. Nay, he got no help to sustain his history of the record, even from Stanton. If help came from that quarter at all, it was to shield him from the awakened wrath of the hood-winked Executive, by drawing the fire upon the head of his department. But what the Judge-Advocate-General did do, in view of the crisis, is sufficiently apparent. He took immediate measures to retract all that portion of Mr. Pierrepont's declaration of Saturday, which expressed or implied any knowledge on the part of the Cabinet of the disputed paper. The counsel for the United States had continued his speech to the jury all day Monday, apparently unconscious of the tempestuous effect of his statement of Saturday, and of the predicament in which it had involved his informant. In the evening, he must have had a "confidential interview" with Judge Holt. For, on rising to resume his speech on Tuesday morning, the 6th of August, from no apparent logical cause arising from the course of his argument, he saw fit to recur to the now absent record, and to interpolate the following perfectly insulated and seemingly superfluous piece of information: "You will recollect, gentlemen, when a call was made several days ago by Mr. Merrick * * asking that we should produce the record of the Conspiracy Trial, that I brought the original record here and handed it to counsel. I then stated that as a part of that record was a suggestion made by a part of the Court that tried the conspirators, that, if the President thought it consistent with his public duty, they would suggest, in consideration of the sex and age of one of those condemned, that a change might be made in her sentence to imprisonment for life. I stated that I had been informed that when that record was before the President, and when he signed the warrant of execution, that recommendation was then before him. I want no misunderstanding about that, and I do not intend there shall be any. That is a part of the original record which I here produced in Court. It is in the hand-writing of one of the members of that Court, to wit, General Ekin. The original of that is now in his possession and in the hand-writing of Hon. John A. Bingham. When the counsel called for that record, I sent the afternoon of that day to the Judge-Advocate-General, in whose possession these records are. He brought it to me with his own hand, and told me with his own voice, in the presence of three other gentlemen, that that identical paper, then a part of the record, was before the President when he signed the warrant of execution, and that he had a conversation with the President at that time on the subject. That is my authority. Subsequently to this, having presented it here, the Judge-Advocate-General called to receive it back, and reiterated in the presence of other gentlemen the same thing. That is my knowledge and that is my authority." Here we have, then, the final statement of his side of the case, made by Judge Holt, through the mouth of counsel, revised and corrected under the stress of the occurrences at the White House and the negatory attitude of the members of the Cabinet present on the spot. Stripped of the allegation that the record was laid before the Cabinet and voted upon by every member of the Cabinet, its affirmations, carefully confined to "the confidential interview" between the President and the Judge-Advocate, go no farther than that "the identical paper" was "before the President," when he signed the death warrant, and they had a conversation "on the subject." "He wants no misunderstanding" and does "not intend there shall be any." The counsel in great detail relates how he came by his facts. "That is my knowledge and that is my authority." Of course it is open to everybody to believe, if he choose, that the talk of the Cabinet meeting and of the unanimous vote of its members against the petition, was a mere rhetorical exaggeration of a simple narrative of Holt relating the incidents of an interview between the President and himself, struck off by Judge Pierrepont in the full fervor of his eloquence; but, nevertheless, it remains true that the Judge-Advocate, until the catastrophe befell, was satisfied it should stand, rhetoric and all; because he "reiterated the same thing" on Saturday, _after_ the counsel had concluded his statement, and on Monday the counsel continued his address all day without being advised of the necessity for any retraction. Be this as it may, there is now, at the last, no appeal by the Judge-Advocate to the members of the Cabinet, all of whom were living, as witnesses to the President's knowledge of the petition of mercy. He abandons hope of corroboration from members of the Cabinet, and he takes his stand upon the single categorical affirmation, that the "identical paper" formed part of the record when the record was before the President in 1865. And, singular as it may appear, this is the very thing that the President does not categorically deny; he only infers the contrary from the appearance of the record in 1867. The single categorical negation of the President is that he neither saw nor read the recommendation. And, singular as it may appear, this the Judge-Advocate does not categorically affirm; he leaves it to be inferred from his averment of the presence of the paper and a conversation on the subject. In short, the statements of the two disputants are not contradictory. Both may be true. And, when we recollect the feeble state of health of the President at the time of the "confidential interview" and his mood of mind towards the distasteful task forced upon him in a season of nervous debility; when we recollect the mode and manner the Judge-Advocate adopted of writing out the death warrant; it will seem extremely probable that both statements _are_ true. The President made no "careful scrutiny" of the record in 1865, or he would not have needed to do so in 1867. The Judge-Advocate, inspired by his master, would not be too officious in pointing out to the listless and uninquiring Executive the superfluous little paper. He might do his whole duty, by conversing on the subject of the commutation of the sentence of the one woman condemned, and, then, by so placing the roll of papers for the President's signature to the death warrant as to bring the modest "suggestion" of the five officers "_right before his eyes_," though upside down. If the sick President did not carefully scrutinize the papers, was that the Judge-Advocate's fault? Nay, in writing out the death warrant in the inspired way he did, this zealous patriot may have felt even a pious glow, in thus lending himself as an instrument to ward off a frustration of Divine justice. Alas! one may easily lose one's self in endeavoring to trace out the abnormal vagaries of the "truly loyal" mind, at that period of hysterical patriotism. * * * * * After these incidents on the Surratt trial, and at the White House, there could be no more mystery about the recommendation to mercy. It was historically certain that such a document, or rather a "suggestion," did in fact emanate from the Commission, and was at some time affixed to the record. Left out of Pitman's official compilation, nevertheless it was there. The only question about it which could any longer agitate the people was, had it been suppressed? And this, unfortunately, was now narrowed down to a mere question of veracity between the President and his subordinate officer, as to what occurred at the Confidential Interview; and which, moreover, threatened to resolve itself into a maze of special pleading about the lack of attention, on the part of the Executive, and the duty of thorough explanation, on the part of the Judge-Advocate, in the delicate task of approving the judgment of a Military Commission. Whether this unsatisfactory and ticklish state of the issue was the cause or not, nothing was done in consequence of these revelations of the Surratt trial. The President, indeed, plunged as he was in the struggle to get rid of Stanton, which finally led to his impeachment, and remembering his own remissness in not scrutinizing the papers before he signed the death-warrant, could have had but little inclination to provoke another conflict, on such precarious grounds, by attempting the removal of the incriminated subordinate of his rebellious Secretary. He kept possession of the record, however, long enough to subject it to a thorough inspection by himself and his advisers, for (as appears from the letter of the chief clerk already quoted) it was not returned to the Judge-Advocate-General's office until December, 1867. The Judge-Advocate, on his part, remained likewise passive and displayed no eagerness for a vindication by a court of inquiry. He pleads in 1873, as excuse for his non-action, that "it would have been the very madness of folly" for him "to expose his reputation to the perils of a judicial proceeding in which his enemy and slanderer would play the quadruple role of organizer of the court, accuser, witness and final judge." Forgetting the "history" he had told Mr. Pierrepont, and then withdrawn, in 1867, he actually claims that he "was not aware that any member of Mr. Johnson's Cabinet knew of his having seen and considered the recommendation," and that he "was kept in profound ignorance of" "this important information" "_through the instrumentality of Mr. Stanton_"! But, were it credible that the Judge-Advocate "supposed," as he says, "that this information was confined to" the President and himself, (not even his master, Stanton, knowing anything of the petition), even in that case the "perils" of an investigation, which he affects to dread, were all on the side of his adversary. The necessity for the President of the United States, himself, to come forward as the one sole witness to his own accusation--especially when the charge involved an admission of his own delinquency, and was to be met by the loud and defiant denial of his arraigned subordinate--was enough, of itself, to deter the Chief Magistrate of a great nation from descending into so humiliating a combat. But, to lay no stress upon this consideration, it must be manifest to any one acquainted with the state of public feeling at the time, that the single, uncorroborated testimony of the maligned, distrusted Andrew Johnson, branded as a traitor by the triumphant republican party, on the eve of impeachment, a hostile army under his nominal command, Stanton harnessed on his back, unfriendly private secretaries pervading his apartments, and detectives in his bed-chamber; in support of such a "disloyal" charge, disclosing, as it was sure to be asserted, a latent remorse for the righteous fate of the she-assassin; would have been hailed in all military circles with derision. The popular, the eminently loyal, the politically sound Judge-Advocate, backed by Stanton, Bingham and Burnett, by his Bureau and his Court, by General Grant and the Army, had certainly nothing to fear. But, though this hero of so many courts-martial appears to have had no mind for a dose of his own favorite remedy, he began, in his characteristic secret way, to collect testimony corroborative of his version of the confidential interview. He writes no letter to a single Cabinet officer. But, immediately after the close of the John H. Surratt trial (August 24, 1867), he writes to General Ekin reminding him of an interview, soon after the execution, in which he (Holt) mentioned that the President had seen the petition; and he obtains from that officer the information he sought. In January, 1868, he quietly procures from two clerks in his office, letters testifying to the condition of the record when it arrived from the Commission, when the Judge-Advocate took it to carry to the President, and when he brought it back. It is needless to say that, though these clerks state that the page, on which the petition was written, and the page, on which the latter portion of the death-warrant was written, are "directly face to face to each other;" they do not notice that, when the death-warrant was signed, the page, on which the petition was written, must have been, either under the other pages of the record, or upside down. In this same month, the resolution of the Senate refusing to concur in the suspension of Stanton was adopted (January 13th, 1868). General Grant, the Secretary of War _ad interim_, in violation of his promise to the President, as alleged by the latter, thereupon surrendered the office to the favorite War-Minister, who thus forced himself back among the confidential advisers of the President. On the 21st of February, the President, with one last desperate stroke, removed him from office; and on the 24th, Andrew Johnson was impeached for this "high crime." In the midst of his troubles, the President finds time to pardon Dr. Mudd (Feb. 8th), who soon returns to his family and friends. The impeachment trial ends May 26th, the President escaping conviction by but one vote; and Stanton at last lets go his hold on the War office. In December, 1868, the Judge-Advocate is privately seeking testimony from the Rev. J. George Butler, of Washington, the minister who attended Atzerodt in his last moments, whose letter of the 15th is most satisfactory on Johnson's belief in the guilt of Mrs. Surratt, but most unsatisfactory in regard to the petition of mercy. On the 1st of March, 1869, among the last acts of his stormy administration, the President undid, as far as he could then undo, the work of the Military Commission by setting Arnold and Spangler free; O'Laughlin having died from the effects of the climate. Had the five officers of the Military Commission been permitted to exercise their power of mitigating the sentence of Mrs. Surratt, as they did in the cases of these men, or had the Executive granted their prayer for clemency; the President might have signalized the close of his term by a still more memorable pardon, and the mother, rescued from death by mercy, would have joined the son, rescued from death by justice. During the four years of the first administration of President Grant, while Andrew Johnson was fighting his way back to his old place, among the people of Tennessee, the story of the suppressed recommendation ever and anon circulated anew with unquenchable vitality. The reappearance of Mudd, Spangler and Arnold, as free men; the "doubtful" death of Stanton, "with such maimed rites" of burial, as might "betoken The corse, they follow, did with desperate hand Fordo its own life;" every incident connected in any way with the tragedy of the woman's trial and death, and every prominent event in the career of the men who had surrounded the illstarred successor of the murdered Lincoln in the awful hour of his accession, revived the irrepressible question; and the friends of Mrs. Surratt's memory, and the friends of Johnson, alike, each by their own separate methods, on every such opportunity, appealed and re-appealed to the public, asserting again and again the suppression of the plea for mercy, propagating what General Holt brands as "the atrocious accusation," or, as he elsewhere characterizes their actions, "for long years wantonly and wickedly assailing" the ex-Judge-Advocate. And yet, during all these years, the baited hero is silent. He lies low. As far as appears, he makes no further efforts to secure testimony. His friend and old associate, Bingham, is by his side, yet he makes no appeal to him. He keeps close by him the letters he has already secured to substantiate his own version of the confidential interview. But he seeks for no Cabinet testimony. His stern master in the War Department, after the acquittal of the President, lays down his sceptre, and then, though the deadliest enemy of Johnson, is allowed to die in silence. Seward lives on and is asked to give no help. The ex-Judge-Advocate still lies low. At length came the appointed time. William H. Seward died on the 12th day of October, 1872. On the 11th day of February, 1873, Gen. Holt makes his appeal for testimony from the officers of Johnson's first Cabinet, by letter to John A. Bingham, requesting him to furnish his recollections of the late Stanton and the late Seward. On March 30th, 1873, he writes to James Speed, Ex-Attorney-General, inclosing a copy of Bingham's reply. On May 21st, 1873, he writes to James Harlan, Ex-Secretary of the Interior, inclosing a copy of Bingham's reply. In July, 1873, he writes to General Mussey, once Johnson's private secretary; and, in August, armed with the answers of these correspondents and with the letters he had gathered in 1867 and 1868, and unprovoked by any revivification of the old charge, he rushes into the columns of the Washington Chronicle with his formidable "Vindication." CHAPTER IV. THE TRIAL OF JOSEPH HOLT. On the threshold of his Vindication, Gen. Holt revives the discredited and apparently forgotten declaration made by Mr. Pierrepont on the trial of John H. Surratt, and stakes his whole case upon the establishment of the truth of the allegation that the petition for commutation, attached as it was to the record of the findings and sentences of the Military Commission, was the subject of consideration at a meeting of the Cabinet of President Johnson, and its prayer rejected with the concurrence of the members present at such meeting. So long as the contention is limited to what took place during that momentous hour between the President and himself, "alone," with the light thrown upon it by the record including the endorsed death-warrant and the affixed paper, he exhibits a certain lack of confidence in the strength of his defense. For, although he prints the "circumstantial evidence," as he calls it, to sustain his own version of the "confidential interview" (consisting of the two letters from his former clerk, heretofore alluded to, and the letter from Gen. Mussey saying that the "acting President" told him of the recommendation "about that time"), he confesses it was not until he recently had secured certain testimony that the petition had been considered by officers of the Cabinet, that he at length felt his case strong enough to warrant a public challenge of his adversary, and himself justified in submitting it to the public. In short, we have a sort of reversal of the position of six years before. _Then_, after having at first put forward the assertion that the petition was considered by the Cabinet, the Judge-Advocate summarily suppresses that branch of his case, and puts into the foreground the explicit asseveration of the identical paper being "right before the President's eyes" when he signed the death-warrant. "He wants no misunderstanding about that." _Now_, while he keeps in mind, it is true, this version of the confidential interview, he relegates it to the rear, and constitutes the Cabinet consideration the very citadel of his cause. As to what takes place at a meeting of the Cabinet, its members of course are the first, if not the only, witnesses. And it is a matter of surprise that General Holt, so far as is apparent, never, in all these past years, applied to any one of them to substantiate so essential a part of his vindication. He states that he has always been satisfied that the matter must have been considered in the Cabinet, and adds that "from the confidential character of Cabinet deliberations" he has "thus far been denied access to this source of information." But he does not say when, or to whom, he applied for such "access," or how he had been "denied." It is certain, from what he says elsewhere, that he never applied to Stanton or to Seward; he admits in a subsequent communication that he never applied to McCulloch, Welles or Dennison; and, from the tenor of their letters now in reply to his, it appears he never applied before to Harlan or to Speed. And these are all the members of the Cabinet of President Johnson in July, 1865. Moreover, he does not, even now, in 1873, make application in the first instance to an ex-Cabinet officer. His first application is made to John A. Bingham, his old colleague in the prosecution of Mrs. Surratt, for Cabinet information in the shape of conversations with the two ministers, who, after so many years of unsolicited silence in life, are now silent, beyond the reach of solicitation, in death. And it is not until he has secured the desired information, which he would have us believe was entirely unexpected, that he is stirred up to the necessity of a public vindication of his character; and then he selects the two of the surviving ministers of the Cabinet, known to be hostile to the ex-President, as the objects of solicitation, sending them, as a spur to their recollections, the letter containing the reminiscences of his serviceable ally. But, by some fatality, the industrious inquirer takes nothing by his somewhat complicated manoeuvre. The letters he produces from Cabinet officers afford him no assistance. Judge Harlan can recall only an informal discussion by three or four members of the Cabinet (Seward, Stanton, himself and probably Speed) of the question of the commutation of the sentence of Mrs. Surratt because of her sex; which, she being the one woman under condemnation, would surely arise in a tribunal of gentlemen, whether there was a recommendation or not, as in fact it did even among the stern soldiers of the Military Commission. But the writer, who, as Senator from the State of Iowa, had voted for the conviction of President Johnson, makes the positive declaration, that "no part of the record of the trial, the decision of the court, or the recommendation of clemency was at that time or ever at any time read in my (his) presence." He remembers, with undoubting distinctness, inquiring at the time whether the Attorney-General had examined the record, and was told that the whole case had been carefully examined by the Attorney-General and the Secretary of War; and he states that the question was never submitted to the Cabinet for a formal vote. This letter is most significant, both for what it says and for what it refrains from saying. Its positive statement annihilates the story of a "full Cabinet" when "the vote of every member" was adverse, and indeed of any Cabinet meeting whatever, where the paper was present and considered--such a story as Judge Pierrepont first gathered from the "voice" of Holt; and the absence of all affirmation that the writer had either seen or heard of the recommendation, while he expressly states that it was never read in his presence (considering the occasion and object of the letter and the bias of the ex-Senator), warrants the conclusion that such a document was not mentioned at the informal Cabinet consultation he describes. In any view, the letter furnishes no support to Holt's contention. The writer expressly negatives the presence of the record and the paper, and he does not affirm that such a petition was alluded to, in terms, in the discussion in the presence of the President; which he surely would have done, in aid of his sorely tried friend, if such had been the fact. The Judge-Advocate fares even worse at the hands of the Ex-Attorney-General. Here is a man who knew, if any other member of the Cabinet except Stanton knew, whether the paper in question ever came up for discussion before the President in his Cabinet. He goes so far as to say that, after the findings and before the execution, he saw the paper attached to the record "in the President's office;" a statement which reminds us of another of the same elusive and evasive character, (that the paper was "_before the President_"), and, like that, affirms nothing one way or the other as to the consciousness of the President of its presence. And then he proceeds as follows: "I do not feel at liberty to speak of what was said at Cabinet meetings. In this I know I differ from other gentlemen" (presumably an allusion to the Seward and Stanton of Bingham's letter), "but feel constrained to follow my own sense of propriety." His friend's necessity would have been met by something less than a repetition of what was _said_ at Cabinet meetings. He had only to tell whether he saw a certain paper (not in the President's office), but at a meeting of the President and his advisers, or knew of the recognition there of its mere existence;--a revelation which would not have violated the most punctilious sense of official propriety; and he feels constrained to withhold the least ray of light upon so simple a question. The witness "declines to answer." Ten years after the present controversy, Judge Holt, feeling acutely this weak point in his vindication, again appeals to Speed, in the most moving tones, to break his unaccountable silence and rescue his friend's gray head from "the atrocious accusation," "known to him to be false in its every intendment," with which that perfidious monster, dead now eight years, and, (as Holt significantly quotes), "gone to his own place," sought "to blacken the reputation of a subordinate officer holding a confidential interview with him." And, strange to say, Speed first neglects even to reply to Holt's repeated communications for six months, and then just opens his lips to whisper, "I cannot say more than I have said." He had offered in private (if we may credit Holt) to write a letter to his aggrieved friend, giving him the desired information, "but not to be used until after Holt's death;" a proposition quite naturally discouraged by Holt, who made this sensible reply: "that a letter thus strangely withheld from the public would not, when it appeared, be credited." But, when repeatedly implored to spread "the desired information" before the public, he again declines to answer. James Speed would not tell the truth, when by telling the truth he might relieve his old friend in "the closing hours of his life" from a most damnable calumny, because, forsooth, "of his sense of propriety." He could not violate the secrecy of a Cabinet meeting, held nearly twenty years before; a secrecy which he had good reason to believe had already been broken, in the professed interest of truth, by three of his own colleagues, and, in the alleged interest of a most foul falsehood, by the President himself. Before the Judge finally gives up his old associate as hopeless, he craftily points out to him a way by which the ex-Cabinet officer may give his testimony without violating the most punctilious sense of propriety, not only, but without departing one iota from the literal truth. Since his first letter, General Holt informs him: "I have learned that although you gained the information while a member of the Cabinet, it was not strictly in your capacity as such, but that at the moment I laid before the President the record of the trial, with the recommendation for clemency on behalf of Mrs. Surratt, you chanced to be so situated as to be assured by the evidence of your own senses that such petition of recommendation was by me presented to the President, and was the subject of conversation between him and myself." Does this mean that Speed was an unseen spectator of the confidential interview, and witnessed the writing of the death-warrant? At all events, for some reason, the ex-Attorney-General was afraid to accept this opportunity to equivocate. Holt may well wonder at Speed's obstinate silence. He exclaims: "It is a mystery to me." It will be a mystery to every one, provided the black charge was false. But, on the hypothesis that the charge was true, that the paper was suppressed, either actually or virtually, there is no mystery. Had Speed known that the paper was, not only "_before_" the President, but considered by him, either in or out of the Cabinet, it is beyond the limit of human credulity to believe, for a moment, that, with all possible motives to lead him to succor his friend, and with none to lead him to shield the character of his dead political foe, he would not have uttered the one decisive word in the controversy. And he comes as near doing so as he dares, evidently. He shows, in 1873, a yearning to help his old friend--a yearning so strong that we may be sure it was not the frivolous pretext of "official propriety" which constrained him, then, much less in 1883. If he, too, as Holt said of Stanton, feared the resentment of the dethroned Johnson in life, he certainly could not have feared the resentment of Johnson's ghost after death. He must be numbered among those who, "With arms encumbered thus, or this head-shake, Or by pronouncing of some doubtful phrase, As, _'Well, well, we know;' or 'We could, an' if we would;' or 'If we list to speak;' or 'There be, an' if they might;'_" "ambiguously give out" to know what they are sworn "never to speak of." If there was any oath-guarding "fellow in the cellarage," rest assured it was not the pale wraith of the hood-winked Johnson, but the blood-boltered spectre of his once wide-ruling Minister of War. * * * * * Amid such a dearth of direct explicit testimony of members of the Cabinet about a disputed Cabinet incident, it is curious and interesting to watch the assiduous ex-Judge-Advocate, with the most ingenious and industrious sophistry, attempt to extract corroboration from the statements of the two ex-Cabinet officers, whom he has induced to speak, where in truth no corroboration can be found. After all his efforts, he is forced at last to fall back upon the single testimony of the one man without whose encouraging information he frankly informs us he would not have dared to come before the people, and upon whom he brings himself to believe he might safely rest his defense. That man is John A. Bingham, now, as once before, Special Assistant Judge-Advocate to Joseph Holt. During the eight years which had elapsed since their crowning achievement of hanging a woman for the murder of Abraham Lincoln, these two men had lived, for a considerable portion of the time, in the same city. They were together in the contest over reconstruction and impeachment, standing in the front rank of the enemies of Johnson. They were both at the Capital during the trial of John H. Surratt, when the ghastly reminiscences of the trial of the mother along with seven chained men must have drawn the two military prosecutors into a most sympathetic union. And yet when, in February, 1873, Joseph Holt sits down in Washington to write his letter of inquiry to John A. Bingham, then in the same city, he would have us believe that he had never before poured into the bosom of his old colleague his own sufferings over the frightful calumny so long poisoning the very air he breathed, never before told him his embarrassment over the difficulty to elicit evidence from Cabinet officials, never before besought his friend for his own powerful testimony on the side of his persecuted fellow-official. He writes to his former assistant, as though the information were now communicated for the first time, that the President and he were alone when the record was presented and the death-warrant signed; that he had always been satisfied the petition was considered in a Cabinet meeting, but has hitherto been unable to obtain any evidence upon that point; and then, in an artless, ingenuous manner, as if putting the question for the first time, asks his correspondent whether or not he had had a conversation with William H. Seward, Secretary of State under President Johnson, in reference to the petition, and "if so, state as nearly as you may be able to do all he said on the subject;" with a like request as to Edwin M. Stanton, Secretary of War. With a diviner's skill he selects the two members of the Cabinet who are then dead; and, not to disappoint him, Bingham, in a letter from Washington six days later, informs him that he has struck the two-fold mark. With the same apparent artlessness which characterizes the letter of inquiry, this useful advocate now, as if for the first time, discloses to his long-tried colleague, that he did indeed have a conversation with each of the eminent men he had hit upon, who are now, alas! dead. Judge Bingham is a most willing witness. He relates with great circumstantiality that "after the Military Commission had tried and sentenced the parties" he "prepared the form of the petition to the President." He then gives the form thus prepared as he now recollects it (in which there are two significant mistakes); he states that he wrote it with his own hands, that General Ekin copied it, and the five signed the copy; as if all this particularity had any relevance to the question at issue, as if the point in dispute was the existence of the paper, and not its suppression at a critical moment after it was written. He affects to believe it necessary to state to his old colleague, that he "deemed it his duty to call the attention of Secretary Stanton to the petition, and did call his attention to it before the final action of the President;"--as if it were among the possibilities, that the head of the War Department could in any case have overlooked so important a paper, much less that the imperious Chief of this very prosecution could have been kept in ignorance, one hour, of what was done by his tools. The Special Assistant, however, at last comes to the point: "After the execution, the statement to which you refer was made that President Johnson had not seen the petition for the commutation of the death sentence upon Mrs. Surratt. I afterwards called at your office, and, without notice to you of my purpose, asked for the record in the case of the assassins. It was opened and shown me, and there was then attached to it the petition, copied and signed as hereinbefore stated." Oh, what an artless pair of correspondents! The former Special Assistant tells the former Judge-Advocate how he played the detective on him to his friend's justification; "_without notice of my purpose_"! "Soon thereafter I called upon Secretaries Stanton and Seward, and asked if this petition had been presented to the President before the death-sentence was by him approved, and was answered by each of those gentlemen that the petition was presented to the President, and was duly considered by him and his advisers, before the death-sentence upon Mrs. Surratt was approved, and that the President and the Cabinet upon such consideration were a unit in denying the prayer of the petition; Mr. Stanton and Mr. Seward stating that they were present." In weighing the credibility of this statement, so conclusive if true, two considerations should be borne in mind. 1. That we have here, not the testimony of either Seward or Stanton, but the testimony of a man who, if the paper was in fact suppressed, must have been a participant in the foul deed. For no one will believe, for a moment, that Joseph Holt would have dared to perpetrate, if he could, or could have perpetrated, if he dared, so unspeakable a wickedness, without the knowledge and coöperation of his fiery leader in the conduct of the trial. 2. If this decisive information was in the possession of Judge Bingham at so early a date as "soon after the execution," why had he not communicated it to his distressed partner while Stanton and Seward lived? He had taken pains to obtain it to meet the ugly stories that were even then circulating against the Judge-Advocate. He knew it at the time of the struggle at close quarters over the petition during the Surratt trial, and he must have been cognizant of the fact, that for the lack of it, that officer had been forced to withdraw the allegation of a full Cabinet consideration of the petition, which he had at first prompted the counsel of the United States boldly and publicly to make. After the trial the reports grew louder and louder, until it was everywhere said that Andrew Johnson habitually declared that he had never seen the paper. Holt ran hither and thither collecting testimony from all available quarters. Hear Holt himself: "Every time the buzz of this slanderous rumor reached him (Bingham) during the last eight years--which was doubtless often--his awakened memory must have reminded him that he held in his keeping proof that this rumor was false." Why did not his former assistant even relieve his tremendous anxiety by telling him that he had evidence which would blow the calumny into the air? General Holt, in a letter in reply to Bingham's, dated at Washington the next day, which he also prints in his Vindication, says: "It would have been fortunate indeed, could I have had this testimony in my possession years ago." He calls its concealment "a sad, sad mockery." Yes; and why was Judge Bingham willing to perpetrate such a "mockery," and continue the "mockery" until Stanton's death, and then until Seward's death, which occurred only a few months before he at last enlightens his colleague? Can the most credulous of men believe that, during all these years, he was guilty of such cruelty as not even to whisper such welcome intelligence into the ears of his sorely distressed brother officer? And what shall we say of William H. Seward? If that great man told Judge Bingham in 1865 what the Judge, after Seward was dead, first says he did, why had William H. Seward kept silent so many years, and at last died and made no sign? He must have heard the charge, so infamous if false, and, if Judge Bingham be believed, he must have known it to be false. He must have heard the statement of Judge Pierrepont in open court in 1867. He must have known of the President's sending for the record and of the explosion thereupon in the Department of War. Why did he not at that crisis come forward with the proof of which the Judge-Advocate was so dreadfully in need? The Secretary of State could not have intrenched himself behind the inviolability of proceedings of Cabinet meetings, as did the over-scrupulous Attorney-General, because, according to Judge Bingham, he himself had betrayed the secret long before. And why did not Judge Bingham force him to speak, or else make public his interview with him, while Seward was alive and could either affirm or contradict it? No, these two eminent lawyers, yoked together as the common mark of what they call a "most atrocious slander," originating with a President of the United States, bruited about everywhere both in official and private circles, wait eight long years, and until after the death of the head of that President's Cabinet, from whose lips one of them at least had heard at its very inception a solemn refutation of the black lie, before they venture to proclaim it to the world. Mr. Bingham admits in his letter that, in 1865, "he desired to make" the facts he had ascertained "public." Why did he not "make public" what Seward had told him, while Seward was living? He furnishes no answer to this question, and until he does, his testimony on the matter is tainted with a most reasonable suspicion. And, besides, what we know of the situation of the Secretary of State at the time of the execution of Mrs. Surratt, of his subsequent career, and of his lofty character as a man, is sufficient to stamp the account of Judge Bingham as incredible. William H. Seward, one of the most distinguished statesmen of the era of the civil war, one of the most illustrious founders of the republican party, and one of the most trusted advisers of Abraham Lincoln, remained in the Cabinet of Andrew Johnson until the close of his administration. He united in the pardon of Mudd, Spangler and Arnold. He stood by the President fearlessly in the dark days of the impeachment, and when the President had become the target of the daily curses of thousands of Seward's former political friends. Had he known that the accusation against General Holt was false, and at the same time heard the daily reiteration of its truth from the lips of his Chief, he would not have remained an hour in the Cabinet of such a monumental slanderer. So far from allowing the ceremonial restraints of Cabinet rules to make him a silent accomplice in a foul falsehood, he would have proclaimed the truth, if necessary, even from the steps of the Capitol. Mr. Seward, at the time of the execution of Mrs. Surratt, could have but barely recovered from the broken jaw and broken arm from which he was suffering, when he bore the savage assault of Payne, and from the grievous wounds which that mad ruffian inflicted. One of his sons was still incapacitated because of injuries from the same hand, and his wife died June 21st, 1865. It is not at all probable that, in such dolorous circumstances, he would be required to give close attention to a subject entirely outside of the duties of his department, and in which his personal feelings as a sufferer were so deeply involved. He said himself under oath to a Congressional Committee: "Having been myself a sufferer in that business, the subject would be a delicate one for me to pursue without seeming to be over-zealous or demonstrative." In spite of the eight-years-embalmed testimony of a hundred Binghams, we would not believe that the uncomplaining victim of Payne voted to deny the Petition of Mercy. While no attempt is made to explain the silence of Seward during his lifetime, or the silence of Judge Bingham himself regarding the information he got from Seward, this willing witness does give a most singular and perplexing explanation of his long silence regarding the information he got from Stanton. He says: (in the same letter) "Having ascertained the fact as stated, I then desired to make the same public, and so expressed myself to Mr. Stanton, who advised me not to do so, but to rely upon the final judgment of the people." General Holt, in a subsequent article, states that Stanton "enjoined upon the Judge silence in reference to the communication." We are called upon to believe that the Secretary of War, at the very first interview with Judge Bingham, when, upon the theory of the truth of the information, there could have been no conceivable motive for its concealment, advised his inquiring friend to suppress a fact essential to the refutation of a despicable slander, blotting the fair name of a brother officer. Not only this; but that the Secretary continued the injunction of silence during all the years the terrible charge was being bandied about on the lips of men to the daily torment of the poor man so cruelly assailed. As General Holt says: "It was a deliberate and merciless sacrifice of me, so far as he could accomplish it." And he "enforced" the "silence" up to the day of his death. But we ask what reason had the "Great War Minister" "to perpetrate so pitiless an outrage?" Why, in the days of the trial of John H. Surratt, why, in the days of his stern enmity towards the President, when his removal furnished the main ground of impeachment, did he not once speak out for his slandered servant, or even unlock the sealed lips of the obedient Bingham and suffer him to tell the truth? General Holt, in 1883, on affirming in the text of his article that "Messrs. Seward and Stanton declared the truth to Judge Bingham," adds the following explanatory note: "This praise was certainly due to Mr. Seward, but not, in strictness, to Mr. Stanton, since on making the communication to Judge Bingham, he endeavored and successfully, to prevent him from giving it publicity. "The fear of Andrew Johnson's resentment, added to a determination on his part to leave my reputation--then under fire from his silence--to its fate, sufficiently explain his otherwise inexplicable conduct." But does it? Is this in truth a sufficient explanation? Stanton, the stern War Minister, fear the resentment of Andrew Johnson! When was he taken with it? When he bearded the President in his Cabinet? When he defied him in the War Department, and scattered his missive of removal to the winds? Or did he wait to begin to fear him until the President retired to private life, just escaping conviction by impeachment, and shorn of all popularity North or South? The preposterous nature of the cause assigned casts suspicion upon the assignor himself. As to the second cause, we are at a loss to conceive why Mr. Stanton should harbor such motiveless malignity against the reputation of his former colleague, then his pliant subordinate, and always his friend. We need, in this regard, an explanation of the explanation. If it be true, it settles the character of Stanton for all time. But, it appears, in the words of General Holt, that "while he (Stanton) lived, this enforced silence was scrupulously obeyed." Again we ask why? Why should Bingham have obeyed the "advice," even if given by Stanton so long before? Why should the associate of Holt, in the prosecution and execution of Mrs. Surratt, have ministered to the malignity of Stanton, scrupulously obeyed his base injunction, and never even told his beloved fellow-laborer on the field of courts-martial, that he possessed such secret sacred testimonials in his favor? The General gives us no explanation of this "inexplicable conduct." Surely, the undaunted Bingham--who, as manager on the impeachment trial, so clawed the character of the arraigned President, could have had no "fear of the resentment of Andrew Johnson." And, unless the masterful Stanton held some secret back to feather his "advice," or lend weight to his injunction of silence, we see no reason why the fear of Stanton should have closed the lips of the voluble Special Judge-Advocate. He surely could not have joined in the fine irony of the Secretary, that it would be better for their mutual friend, although "under fire," "to rely on the judgment of the people." But another, and a final, explanation is necessary. The Great War Minister died in December, 1869. Holt more than hints that "Providence" shortened his life so that he should no longer "perpetrate so pitiless an outrage" as keeping Bingham's mouth shut. Why, then, do we hear nothing from Judge Bingham for three years more? In the words of Holt, "after the Secretary had, amid the world's funeral pomp, gone down into his sepulchre, the truth came up out of the grave to which he had consigned it," and was "resurrected and openly announced by Judge Bingham." But why was the resurrection delayed until February, 1873? He does not tell us. Why should "the buzz of this slanderous rumor" (to use Holt's own words), "sadly recall to him that, though holding that proof, he was not yet privileged to divulge it?" There is no answer to this; none. The "scrupulosity" of Bingham did not end with the providential taking off of Stanton, but prolonged its reverential obedience to the advice of the dead, until his great colleague also was summoned from the scene. Such resurrected truth, like the suggested letter of Speed to be used only after poor Holt's death, seems doubly obnoxious to the latter's own common sense remark: "thus strangely withheld from the public, it would not, when it appeared, be credited." * * * * * On the whole, it is exceedingly doubtful whether Judge Bingham's testimony does not do more harm than good to General Holt's case. It is the testimony of an accomplice, if the charge it is meant to refute is true. Its subject-matter is hearsay, withheld, so long as the direct evidence was attainable, for no good reason, or for a reason assigned which will not stand a moment's examination. This interchange of letters between two associates in infamy, if infamy there were, the one applying for, and the other disclosing ostensibly for the first time, at so late a day, decisive information, which, in the ordinary course of things, the one must have asked for or the other revealed, and both talked over from the beginning, wears upon the face all the features of a collusive correspondence. No one acquainted with the facts can be induced to credit what both these men state upon the threshold of their correspondence, and upon the truth of which their credibility is staked for all time, that, if two such conversations with Judge Bingham actually took place, this co-victim of a common charge would ever have withheld all knowledge of such important testimony from his brother in affliction for eight years, and until the lips of his two eminent interlocutors, whose confirmation would have at once and for ever crushed the calumny, were closed in death. And, with this incontrovertible assertion, we dismiss John A. Bingham to keep company with Richard Montgomery and Sanford Conover, two witnesses who were once the subjects of his own fervid eulogy. Another aspect of the case must for a moment detain us. Under the admitted fact that the President approved the death-sentence on Wednesday, July 5th, it is by no means clear how we are to find room for this supposed Cabinet meeting. The natural construction of Bingham's letter would lead us to believe that the Cabinet meeting, which the two Secretaries are said to have described, was a regular consultation between "the President and his advisers," held _before_ the "confidential interview" at which the President "approved the death-sentence;" and that the entire Cabinet voted on the question raised by the petition, because it was "a unit in denying the prayer." This is but another version of the "full Cabinet" of Judge Pierrepont's first statement, and forcibly suggests that the two have an identical origin--at first withdrawn under compulsion while Seward lived, at last brought forward again after his death. And every one, on such construction, would expect to hear the voices of McCulloch, Welles and Dennison, still living in 1873, and accessible to the ex-Judge-Advocate. He states in his "Refutation," that he "had satisfactory reasons for believing that they were not there;" but he could not have gathered those reasons from Judge Bingham or his letter, which really is only consistent with the presence of some, if not all, of the three; and it is naturally to be inferred he got them from the ex-members themselves in letters repudiating all knowledge of the petition;--letters he takes care not to publish. Again: the Cabinet meeting described in Judge Bingham's letter cannot be made to square with the meeting described in the letter of Judge Harlan. The former was a regular Cabinet meeting, the latter was an informal discussion by a few members of the Cabinet. At the one, the petition was "duly considered," at the other, neither record nor petition was present. At the one, "a formal vote" was taken upon the "question as to Mrs. Surratt's case;" at the latter, her case "was never submitted to a formal vote." But--not to dwell further on dispensable points--it is enough to say that _any_ Cabinet meeting whatever, for the consideration of the petition, held _before_ the President's approval of the death-sentence, is, on the admitted facts of the case, an impossibility. Indeed Holt himself, when driven to the question, does not claim that there was. The record was in the custody of the Judge-Advocate from the 30th of June until that officer carried it to the President on the 5th of July, and during that interval the President was sick-a-bed. It was General Holt, as he himself states, who first "drew his attention to the recommendation," and "the President then and there read it in my (his) presence." And this was at the confidential interview on Wednesday, July 5th. There could have been no meeting of the President and his Cabinet at which the record and petition were present and discussed, "before the approval of the death-sentence;" which confessedly was done at the confidential interview. When this impossibility was pointed out by Andrew Johnson, General Holt, in his "refutation," with great show of indignation, denounces such an argument as "intensely disingenuous." While conceding at once that from the adjournment of the Commission to the 5th of July, the President "had been sick in bed, and had, of course, had no opportunity of conferring with any members of his Cabinet;" he proceeds to show what his idea of intense ingenuousness is, by claiming that what "Messrs. Seward and Stanton" (of Bingham's letter) "clearly meant was, that before the President had _finally_ and _definitely_ approved the sentences in question," the recommendation to mercy "had been considered by him and his advisers in Cabinet meeting;" and therefore such a meeting might have been held _after_ the signature to the death-warrant, say on Wednesday afternoon (5th), or on Thursday, the 6th. And he, now, once again, as in the days of the Surratt trial, abandons all idea of a "full" or regular Cabinet meeting, and endeavors, with the most transparent sophistry, to identify the informal discussion of Judge Harlan's letter with the Cabinet Council of Judge Bingham. But alas! for the ingenuous General! Circumstances are too strong for him. For there is no more room for a Cabinet meeting, formal or informal, to do what Judge Bingham's informants are said to relate--_i. e._ consider, and then vote upon the petition--_after_ the confidential interview than _before_. It is agreed on all hands that the President approved of the death-sentence on Wednesday, at the confidential interview between Holt and himself, and, at that very time, and by the same warrant, appointed Friday the 7th, for the executions. The whole matter was begun and ended in an hour. There was neither opportunity, nor, if there had been, use, to hold a Cabinet consultation upon the question of commutation after that. The President had reviewed the record, and, without consultation with any human being but Holt, put his name to the death-warrant. Why consult his confidential advisers after he had decided the whole matter? Holt himself says that, at this private interview, it was not he, but Andrew Johnson, who had fully made up his mind that Mrs. Surratt must be put to death; that the President needed no urging or advice on that subject; that he inveighed against the women of the South with a ferocity which reminds us of the loyal Bingham himself. Holt says that the President himself, without a suggestion from him, was "prompt and decided" "as to _when_ the execution should take place," "and in the same spirit too, in which he subsequently suspended the writ of Habeas Corpus, he fixed the Friday following." Why call in his "advisers" after he had, with the approval of his judgment and his conscience, put his hand to the work of blood! Besides, if he needed such a supererogatory endorsement of his "advisers," there was no time to get it. The record with the death-warrant went direct to the Adjutant-General's office that very Wednesday. Holt cannot remember whether he took it or not, nor can the Adjutant-General remember when or how he received it. But this is of no consequence. The order for the execution was drawn on that day, the necessary copies made that day; it was promulgated on the morning of Thursday the 6th, and on that day at _noon_, the warrant for her death, within twenty-four hours, was read to the fainting woman in her cell. All day long, on the 6th, the White House was besieged by her friends, her priests and her daughter, to obtain a reprieve. The guardians of the President had no time to hold Cabinet consultations over foregone dooms of death. They were too busy intercepting verbal prayers for mercy, holding shut the doors of the President's private room, sending away all petitioners, for a few more hours' life, to the merciful Judge-Advocate, making sure that there should be four pine coffins and four newly dug graves, and that the Habeas Corpus should not leave one empty. Hold a Cabinet meeting after the President had signed the bloody warrant, and Stanton had once clutched it! Reopen the perilous question to hear Welles and Dennison, and McCulloch and Seward, to say nothing of Harlan and Speed And Stanton, discuss a petition addressed to the President who had already denied it! "Five members of our court have been suborned by their feelings to swerve from their duty. We run no more risks of soft-hearted gallantry this time amid the members of the Cabinet. Let the funeral games begin." The ex-Judge-Advocate insists that the signature to the death-warrant was a matter of very little moment. The President could withdraw it at any time. But would he have us believe that, after the President had dispatched such a fatal missive to the officer whose sole duty, with regard to it, consisted in the promulgation of an order for its execution within twenty-four hours, such action was simply provisional and, according to usage, still subject to rescission by a Cabinet vote? Desperate, indeed, must be the necessities of a defence, which drive the defendant on the forlorn hope of identifying a Cabinet meeting, voting as a unit to deny a petition for clemency, "_before the death-warrant was approved_," with a Cabinet discussion of the petition, _after_ the death-warrant, fixing the execution on the next day but one, had been signed by the President, (who is represented as urgent and eager at the moment of his signature to exact in the shortest time the extremest penalty); on the ground that the latter was held _before_ the theoretical _animus revocandi_ of the Executive had become technically inoperative with the last sigh of the condemned. * * * * * It has been suggested by one of his subordinate officers that the Secretary of War having seen the petition as soon as the record came to his department, it is inconceivable that, at some moment between the 30th and the 7th, the matter should not have been discussed by him with the President. Of course, there can be no doubt that Stanton knew all about the recommendation. But, (and this obvious answer seems to have altogether escaped the attention of his friend), if the paper was in fact suppressed, it was suppressed with Stanton's own knowledge. Indeed, his must have been the master-hand. He it was who kept the late Vice-President up to the mark of severity as long as the bloody humor lasted. He was the sovereign, and Bingham and Holt but his vassals. Everybody will give them the credit of not having dared to dream of suppression without the electrifying nod of their imperious lord. And, from the long silence of one, if not both, of his slaves, it would appear, that he not only directed the suppression of the paper, but was too proud to deny, or suffer his minions to deny, it to his dying day. CHAPTER V. ANDREW JOHNSON SIGNS ANOTHER DEATH-WARRANT. Let us turn from the case made by General Holt, which on a cursory inspection seems so strong, but the seeming strength of which, on a closer scrutiny, dissipates itself among such perplexing questions, and lands us at last in the "enjoined silence" of Stanton, to the first public, authoritative charge made by the ex-President. It appeared, November 12th, 1873, in the same newspaper which had published General Holt's Vindication, to which it was a reply. For it must be remembered that it was Joseph Holt, for eight years the accused, and not Andrew Johnson, for eight years the accuser, at the bar of rumor, who first threw down his gage in the public arena, defying his secret antagonist to come forth. The gallant knight chose his own good time; and, at last, surrounded with sponsors, both clerical and martial, with banners flying and a most sonorous peal of trumpets, he burst into the lists, as though he would fain hope by noise and show to over-awe his dreaded adversary into submissive silence. His thunders availed nothing. His glove had no sooner reached the ground than it was taken up. Let us hear the plain, straightforward statement of Andrew Johnson. There are no mysteries to unravel, no explanations to explain. "The findings and sentences of the court were submitted on the 5th of July (he and I being alone), were then and there approved by the Executive, and taken by the Judge-Advocate-General to the War Department, where on the same afternoon the order to carry them into effect was issued. Mr. Speed, doubtless, saw the record, but it must have been in the Department of War, and not in the Executive office." After thus quietly disposing of Mr. Speed's evidence, he proceeds:-- "The record of the court was submitted to me by Judge Holt in the afternoon of the 5th day of July, 1865. Instead of entering the Executive Mansion in the usual way, he gained admission by the private or family entrance to the Executive office. The examination of the papers took place in the library, and he and I alone were present. The sentences of the court in the cases of Herold, Atzerodt and Payne, were considered in the order named, and then the sentence in the case of Mrs. Surratt. In acting upon her case no recommendation for a commutation of her punishment was mentioned or submitted to me." He then states that the question of sex was discussed alone; Holt insisting upon carrying out the sentence without discriminating as to sex; that a woman unsexed was worse than a man; that too many females had abetted traitors during the war, and that there was a necessity an example should be made. "He was not only in favor of the approval of the sentence but its execution on the earliest practicable day. "Upon the termination of our consultation, Judge Holt wrote the order approving the sentences of the Court. I affixed my name to it, and, rolling up the papers, he took his leave, carrying the record with him, and departing as he had come through the family or private entrance." And there we must leave him. True, he rejoined, in December, in another very long article, contributed to the same newspaper, in which he endeavored to break the force of several points made in Johnson's answer, and dwelt with much insistence on the abstention of the President from making any open charge against him, and on his adversary's present silence with regard to General Mussey's letter. But there is nothing new in the way of testimony, except two sympathizing letters from Generals Ekin and Hunter, respectively; the former of which might be construed by the uncharitable as evidence that General Holt, at the time of the execution, was already forestalling anticipated accusation by defending himself in private to his friends; the latter is a tribute from the grim President of the Military Commission to the Judge-Advocate's _tenderness_ to the prisoners before that body, of which the printed record of the trial affords such striking illustrations. This lengthy "Refutation," as it was entitled, upon the whole added little, if any, strength to the "Vindication." His accuser, on his side, resting content with his one single explicit public utterance, paid no attention to it. And when, at the present hour, we calmly survey the relative standing, the position, the character and career of the two combatants, the circumstances surrounding the momentous confidential interview, the silent testimony of the record with the significant twist of the death-warrant, the nature of the accusation, the mysteries enveloping the belated defense, the probable motives actuating each, the thirst for blood which for a time maddened the leading spirits of the War Department, the passivity of Johnson for the few weeks after his sudden and sombre inauguration, and for the same period the wild and reckless predominance of Stanton;--what valid reason exists why we should discredit, or even suspect for a moment, the veracity of the ex-President? Andrew Johnson looms up in history a very different figure from the one discerned by his enemies, both North and South, amid the passions of his epoch. He was no inebriate, as he was stigmatized because of the unfortunate incident at his inauguration as Vice-President. He was no weak, frightened tool, as he appeared to be at the bloody crisis of his accession to the Presidency. He was no apostate from his section, as he was cursed by the South for being at the breaking out of the war. He was no traitor to the North, as he was denounced by the impeachers for the mere endeavor to carry out the reconstruction policy of his lamented predecessor. He was not the garrulous fool, he was called in ridicule when he "swung around the circle." He is now recognized, when his career is reviewed as a whole, as a man temperate in his habits, firm, self-willed and honest; as a statesman, intelligent though uncultured, sometimes profound and always sincere; and as a union-loving, non-sectional, earnest patriot. His impeachment is looked back upon by the whole country with shame. His impeachers are already, themselves, both impeached and convicted at the bar of history. In sober truth, so unique and perfect a triumph never capped and completed the career of Roman warrior or modern ruler of men, as when, but little more than a year after his reply to General Holt, the ex-President--once again the chosen representative of that State whose rebellious people he had coerced with an iron hand as military governor during the Civil War--took his seat in that body, before which he had been arraigned on the impeachment of the House of Representatives and had escaped conviction by but a single vote. With the words of Holt's denunciation still fresh in their remembrance, the citizens of Washington loaded the desk of the retributive Senator with flowers; and, when he advanced, amidst so many colleagues who had condemned him as judges, to take the oath of office, and again when, a few days later, his voice, which had before been heard pleading for the imperiled Union, was from the same place once more heard pleading for the imperiled Constitution, the crowded galleries and corridors gave him a conquering hero's welcome. When in the following summer he died, his body was followed to its grave in the mountains by what it is hardly an exaggeration to call the whole people of his State. When Congress reassembled, the Senate and the House clothed themselves with crape. One of his former judges, who had voted him guilty of high crimes and misdemeanors (Morton, of Indiana), thus spoke of him in the Senate: "In every position in life he showed himself to be a man of ability and courage, and I believe it proper to say of Andrew Johnson that his honesty has never been suspected; that the smell of corruption was never upon his garments." The same Senator related that when Johnson, as the newly appointed Military Governor, arrived at Nashville "he was threatened with assassination on the streets and in the public assemblies, but he went on the streets; he defied those dangers; he went into public assemblies, and on one occasion went into a public meeting, drew his pistol, laid it on the desk before him, and said: 'I have been told that I should be assassinated if I came here. If that is to be done then it is the first business in order, and let that be attended to.' No attempt having been made he said: 'I conclude the danger has passed by;' and then proceeded to make his speech." Again the Senator said: "After I had voted for his impeachment, and met him accidentally, he wore the same kindly smile as before, and offered me his hand. I thought that showed nobility of soul. There were not many men who could have done that." The man, of whom two such incidents could be truthfully related, could never have invented so foul a charge against an innocent subordinate. A Senator from a neighboring State, (McCreery), on the same mournful occasion said of him: "When he went to Greeneville he was a stranger, and a tailor's "kit," his thimbles and his needles, were probably the sum-total of his earthly possessions; at his death, the hills and the valleys and the mountains and the rivers, sent forth their thousands to testify to the general grief at the irreparable loss. "I honor him for that manly courage which sustained him on every occasion, and which never quailed in presence of opposition, no matter how imposing. I honor him for that independence of soul which had no scorn for the lowly, and no cringing adulation for the exalted. I honor him for that sterling integrity which was beyond the reach of temptation, and which, at the close of his public service, left no blot, no stain upon his escutcheon. I honor him for that magnanimity which after the war cloud had passed, and the elements had settled, would have brought every citizen under the radiant arch of the bow of peace and pardon." Another Senator (Paddock, of Nebraska) gave utterance to the following unchallenged statement: "I believe, sir, notwithstanding the fact that a painful chapter relating to the official acts of Andrew Johnson was made in this very chamber, that no Senator here present will refuse to-day to join me in the declaration that he was essentially an honest man; aye, sir, a patriot in the fullest sense of the term." Yet another (Bogy, of Missouri), said: "His last election to a seat on this floor as Senator was the work of his own hands, brought about by his own indomitable will and pluck, the reward of a long and terrible contest, continuing for seven years, unsuccessful for a time, and appearing to all the world besides himself as utterly hopeless; nevertheless, finally he was triumphant. From what I have learned from those who are familiar with this, his last contest, he exhibited more openly his true and peculiar nature, than at any other period of his life--which was to fight with all his might and all his ability, asking no quarter and granting none; and although like bloody Richard now and then unhorsed, still to fight and never surrender, until victory perched upon his banner." Senator Bayard said: "Friend or foe alike must admit his steady, unshaken love of country; his constant industry; his simple integrity and honesty; his courage of conviction, that never faltered." * * * * * Truly, the solemn word of a man, of whom such things can be said, is no light thing,--to be thrust aside by windy abuse or vociferous denial. Now, what conceivable motive had such a man, seated in the chair of the Chief Magistracy of this republic, surrounded by Cabinet officers who had been the advisers of his predecessor, to invent, in the first place, so horrible a story as that a friendly subordinate officer had deliberately, in a case of life and death, suppressed so vital a document? For it is contradictory of historical fact, that he never openly made the charge until the year 1873. This may be true of the period from about the time of the execution up to the disclosures of the John H. Surratt trial in 1867. But our review of the incidents of that trial, which General Holt in his refutation seemed to have totally forgotten, proves, beyond the possibility of controversy, that the President then first thought himself driven to inspect the record to ascertain the existence of such a paper, and then first, after the discovery that there was in fact a recommendation, at once, and at all times afterwards, openly asserted that he had not seen it or read it. Every one around him knew that he so said. Stanton, his great enemy, Seward, his great friend, knew it. Bingham, at the very beginning when Stanton forbade him to refute it; Bingham, when Butler pierced his shield in the House of Representatives, and Bingham, when at the bar of the Senate as manager of the impeachment he belabored his old-time Commander-in-Chief, knew it; Holt, when he delivered his contradiction through Judge Pierrepont to the Surratt jury, and when he felt the shadows darkening over his head because of the "inexplicable conduct" of the great War Minister in "perpetuating the pitiless outrage," knew it, and recognized the President of the United States as the responsible author of the tremendous accusation. If Holt is to be credited, the President must have known that four at least of his confidential advisers stood ready to shatter the baseless calumny. What conceivable motive, we ask again, to invent such a story--so easy of refutation, so ruinous to himself, if refuted? The necessity to make some reply to this pressing question seems to have driven both General Holt himself and his defenders into the maintenance of the most absurd, antagonistic and untenable positions. Holt's theory on this subject in his "Refutation" is even ingenious in its absurdity. He would have us believe that when Johnson originally fabricated the calumny, "he had not yet broken with the Republican party, and was, doubtless, in his heart at least, a candidate for reëlection," of course by that party. If this is true, then the "fabrication" was made before the fall of 1865, for by that time the President was in full swing of opposition to the men who had elected him Vice-President. During this brief transitory period, according to Holt, Johnson discovered that the hostility of the Catholics (especially, as may be inferred, those of the Republican party), on account of his signature to the death-warrant of Mrs. Surratt, would blast this otherwise felicitous prospect. Accordingly, to abate this uncomfortable hostility, this Republican candidate concocted the vile slander and set it secretly and anonymously circulating among his friends and followers;--even his greed for reëlection being not strong enough to give full effect to his cowardly policy by openly clearing his own skirts. Could the fatuity of folly farther go? The dream of Andrew Johnson as a Republican candidate for President had ceased to be possible even before the execution of Mrs. Surratt. The Catholics who could be conciliated by any such story might be numbered on Johnson's fingers. And the undisguised signature to the death-warrant could be obliterated by no plea of abatement which the petitioner dared not avow. On the other hand, the other suggestion put forward, if not by Holt himself; by several of his defenders, viz.: that the President propagated the lie "to curry favor with the South in the hope to be elected to the Presidency," has the one merit of being in direct antagonism to the foregoing theory, but nevertheless is yet more flimsy and preposterous. At the time he invented the story, if invention it was, (as Holt appears to have perceived), the road to the Presidency was to curry favor with the North and not with the down-trodden South. And after Johnson had escaped conviction and removal by but one vote, and had retired from office execrated by the North and distrusted even yet by the South, the chance of the Presidency for such a character as he was popularly considered then--especially by truckling to the discredited South--could only look fair in the imagination of a lunatic. No Southern man has seriously thought of being, or has been seriously thought of as, a candidate for President of either political party since the termination of the war, let alone the one Southerner reputed to have been false alternately to both parties and both sections. Besides, Andrew Johnson never apologized for his appointment of the Military Commission, for his approval of its judgment, or for his signature to the death-warrant. He pardoned Dr. Mudd on the very eve of the Impeachment Trial. And he pardoned the two remaining prisoners just before he went out of office. And he may, therefore, be held to have thus signified his reawakened reverence for constitutional rights as expounded in the Milligan decision. But in no other way did he ever acknowledge that in taking the life of Mary E. Surratt he had done wrong. On the contrary, he defended his action in his answer of 1873, and he justified his denial of the habeas corpus, which the ex-Judge-Advocate had the exquisite affrontery to cast up against him. That a President in his situation could cherish aspirations--or hope--of reëlection, based on such a phantom foundation as the whining plea that he would have commuted the unlawful sentence of a woman, hung by his command, to imprisonment for life, had he been permitted to see the petition of five of her judges;--such an imputation can only be made by men mad enough to believe him to have been the accomplice of Booth and Atzerodt. Finally, let us sternly put the question:--What right has Holt to ask us, on the word of himself and his associates, to reject the testimony of Andrew Johnson, who at the best was their accomplice or their tool? He, and his associates, demanded the life of Atzerodt for barely imagining the death of so precious a Vice-President. He, and his associates, hounded the woman to the scaffold, welcoming with delight the stories of spies, informers, personal enemies, false friends, against her, and meeting with contumely and violence the least scrap of testimony in her favor. He suppressed the "Diary." Why may he not have been bad enough to suppress the recommendation? Two of the same band of woman-stranglers kept back from the President the petition for mercy, which wailed out from the lips of the stricken daughter. Why should he not have kept back the timorous suggestion of five officers, who were so soft-hearted as to "discriminate" as to sex? His fate will be--and therein equal and exact justice will be done him--to go down through the ages, stealing away, in the dusk of the evening, from the private entrance of the White House, bearing the fatal missive--the last feeble hope of the trembling widow crushed in his furtive hand. CHAPTER VI. CONCLUSION. That the petition for commutation was a device of the Triumvirate of prosecutors to secure the coveted death-sentence, employed in reliance upon the temporary ascendency of the chief of the three over the beleaguered President, and upon the momentary pliability, heedlessness, or, it may be, semi-stupefaction of the successor of the murdered Lincoln, to smother the offensive prayer:--such an hypothesis alone seems adequate in any degree to reconcile the apparent contradictions, clear up the perplexities and solve the mysteries, which hang around this dark affair. It furnishes the only rational answer to the else insoluble question, how it happened that a court, a majority of whose members had the inclination and the power to lower the punishment of the solitary woman before them to life-long imprisonment, as the court did with the three men who were tried with her and convicted of the same crime, did nevertheless, by at least a two-thirds vote, condemn her to die by the rope. It lights up the else inscrutable prohibition by Stanton of a public exculpation of his subordinate officer, softened by the sardonic admonition "to rely" for justification "on the final judgment of the people." A source of glorification, rather, it should be, that no maudlin pity for a woman had been suffered to intercept the death-stroke of a righteous vengeance. It accounts for the "scrupulous obedience" of Bingham, not only until Stanton's death, but three years after, until Seward, too, had gone. Stanton knew the petition had been suppressed or made invisible; Seward, that the petition never had been before the Cabinet. It throws a glimmer, faint it is true, on the shameful attitude of Speed, eight years after the death of Johnson--still shutting his ears to the repeated appeals of his agonized friend, and still falling back on his propriety. According to Judge Harlan, the whole record had been examined by the Attorney-General, as well as the Secretary of War. Speed, too, under the spell of Stanton, may have fingered the obnoxious paper, which might nip the bloody consummate flower of his "_common law of war_." It furnishes the only plausible reason why such an historic document did not appear in the published official record of the proceedings of the Military Commission, in November, 1865, or in the reports of the Judge-Advocate, first, to the President, and, second, to the Congress. It illumines with a baleful light the atmosphere of sinister secrecy, in which this adjunct to the record, for no lawful reason, has been enshrouded; the mysterious incidents at the Surratt trial, such as the tardy and reluctant production, the faltering and imperfect exhibition, and the hasty withdrawal of the "roll of papers;" the two statements of Mr. Pierrepont; the shrinking of the "full Cabinet meeting" into a "confidential interview," until after Seward's death; and the singularly equivocal language that the petition was "_before the President_" when he signed the warrant. And, finally, when it is considered that the suppression of the paper was not the overt act of any one man, but the result of a strictly formal presentation of the record on the part of the Judge-Advocate, aided, it may be, by a timely sleight-of-hand in writing the order of approval, and of a blind carelessness on the part of the President in the examination of the papers; this hypothesis goes far to explain the reluctance of General Holt to rest his defense on his own evidence of the confidential interview, his eager grasping after Cabinet corroboration, and the abstention of both Judge-Advocate and President from taking official action upon the charge, the one for vindication, the other for punishment. * * * * * And so the history of this murder of a woman by the forms of military rule slowly unrolls itself, to disclose, as its appropriate finis, the writer of the death-warrant struggling in the meshes of his own fraud. The draughtsman of the unaddressed petition for commutation, after waiting eight years for death to clear the way, comes to the help of his old colleague, only to be caught in the same net. The entangled twain call up the sullen shade of their departed master, and force him to father the trick he fain would have scorned. These three are the men who, when the summary methods of martial law would else have failed to crush out entirely the life of their victim, contrived to attain their bloody end by cool and deliberate chicanery. The other actors on the scene may plead the madness of the time. For these three no such plea is open. They superadded to the common madness of the time the particular malice of the felon. Upon their three heads should descend the full weight of criminal turpitude involved in this most unnatural execution. They sat upon the thrones of power. They dragged a woman from her humble roof and thrust her into a dungeon. They chose nine soldiers to try her for the murder of their Commander-in-Chief. They chained her to the bar along with seven men. They baited her for weeks with their Montgomerys and Conovers, their Weichmans and Lloyds, the spawn of their bureau, dragooned by terror or suborned by hope. They shouted into the ears of the court appeal on appeal for her head. And, when at last five of their chosen sons sickened at the task, and shrank from shedding a woman's blood, they procured the death-sentence by a trick. They forged the death-warrant by another. They turned thimble-riggers under the very shadow of the gallows. They cheated their own court. They cheated their own President. They cheated the very executioner. They sneaked a woman into the arms of death by sleight-of-hand. They played their confidence game with the King of Terrors. They managed to hide the cheat from the country until they quarreled with their new Commander-in-Chief. Then ensued an interval of ambiguous mutterings, dark equivocations, private accusation, private defenses. From one side: "I never saw the paper." From the other: "It was right before his eyes." The twin ex-Judge-Advocates, at length, brace each other up to the sticking-point and venture on an appeal to the public. The ex-President, thus driven at bay, fulminates the secret infamy in all its foul extent to the whole world. Thereupon, Great Nemesis finds her opportunity, and makes these once high-placed, invulnerable woman-slayers the sport of her mighty hands. Every one, as if coerced by some magic power, comes at last to act as though he were afraid of the other, and, willing or unwilling, contrives to show how profoundly base the others are. Stanton slinks mysteriously into the shadow of death, refusing to cut his co-conspirator down from the gibbet where the dreaded Johnson has swung him. Bingham, standing like an Indian with a single female scalp bleeding from his girdle, presses his finger to his lips until Stanton and Seward die. Speed, with the obnoxious petition pressed again and again to his nostrils, feebly yet persistently refuses to open his mouth. Holt pictures the dead Johnson exulting even in Hell over the silence of his old Attorney-General; blasts the character of Stanton by ascribing his injunction of silence to a motive the most diabolic; and, unconscious seemingly that he does it, at the same time ruins the credit of Bingham by extolling his "scrupulous obedience" to such an infernal command. Johnson unwittingly proclaims the pardon of the slain woman in his anxiety to show that he signed her death-warrant through ignorance, forced upon him by the ineffable depravity of the men in whom he was compelled to trust. This controversy over the petition of clemency was the only thing needed to round out and decorate the entire, complete and perfect iniquity of the whole drama. It is immaterial and indifferent to history where the truth lies between these combatants in so unsavory a strife. Each one tears off the burning brand of shame, not to extinguish it, but to pass it on to his colleague. If we credit Holt, it is difficult to conceive the malignity of soul of Andrew Johnson, who could invent so foul a charge, the meanness of spirit of Edwin M. Stanton, who, knowing its blackness, could forbid the promulgation of the truth, the cowardly silence of John A. Bingham, whose lips the death of the dreaded Stanton alone could unclose. If we credit Johnson, then in all the crowded catalogue of inquisitors, persecutors, cruel or pettifogging prosecuting officers, devil's advocates and murderous Septembrisers, there is not one who would not spurn with profane emphasis association with Holt or Bingham or Stanton. As the choicest specimen in this shower of accusations and counter-accusations, listen to the tender-hearted ex-Judge-Advocate of 1873--once the stony head of the death-dealing Bureau--rebuking Andrew Johnson for his cold-blooded cruelty! "I would have shuddered to propose the brief period of two days within which the sentences should be executed, for with all the mountain of guilt weighing on the heads of those convicted culprits I still recognized them as human beings, with souls to be saved or lost, and could not have thought for a moment of hurrying them into the eternal world, as cattle are driven to the slaughter-pen, without a care for their future." Listen again to the former expounder of the "common law of war" before the Military Commission, as he arraigns the ex-President for his disregard of the writ of habeas corpus: "The object of which was, and the effect of which would have been, had it been obeyed, to delay the execution of Mrs. Surratt at least until the questions of law raised had been decided by the civil courts of the District; yet this writ was, by the express order of the President, rendered inoperative. And so, under this Presidential mandate, the execution proceeded. * * * But for his direct intervention and defiant action on the writ, whatever might have been the final result, it is perfectly apparent her life would not then have been taken." Once more. Hear J. Holt, the Recorder of the Commission! "As Chief Magistrate he was, under the Constitution," (HEAR HIM!) "the depositary of the nation's clemency and mercy to the condemned, and a pressing responsibility rested upon him as such _to hear the victims of the law before he struck them down_." (The italics are his who wrote out the death-warrant.) "Did he do this? On the contrary, * * he gave * * a peremptory order to admit nobody seeking to make an appeal in behalf of the prisoners, saying that he would 'see no one on this business.' "He closed his door, his ears, and his heart against every appeal for mercy in her behalf, and hurried this hapless woman almost unshrived to the gallows." What a picture is this! The minion of Stanton, the colleague of Bingham, the tutor of Weichman, the tutor of Lloyd, the procurer of the death-warrant, weeping over the empty grave in the Arsenal, which, after his master's relentless watch was over, had at length given up its dead! Here we are forced to stop. After such an exhibition, we can linger no longer over this miserable scramble to shirk responsibility. Its only consequence of historic importance, after all, is the light it casts upon the memory of the sacrificial victim. Out of the cloud of mutual vituperation, which covers the men who, among them, somehow, compassed her slaughter, her innocence rises clearer and clearer, like the images of retribution from the foul fumes of the witches' cauldron. Her vindication must be held to be final, complete and unassailable, when John A. Bingham is anxious to acquaint the country that he drafted a petition to save her life; when J. Holt pretends to weep for her; when Andrew Johnson is forced, by the inexorable pressure of events, to confess that when he signed her death-warrant he knew not what he did. * * * * * As we let fall the curtain at the close of this dark and shameful tragedy, let us endeavor to anticipate the verdict of history. The execution of Mary E. Surratt is the foulest blot on the history of the United States of America. It was a violation of the most sacred provisions of that Constitution, whose enforcement was the vaunted purpose of the War. It was a violation of the fundamental forms and principles of criminal jurisprudence, centuries older than the Constitution. It was a violation of that even-handed justice, which is said to rule in the armies of Heaven and among the inhabitants of the earth. It was a violation of those chivalrous impulses which spring unbidden to the manly breast in the presence of woman. It was a violation of the benign precepts of Jesus, which enjoin tenderness to the fatherless and the widow. It was a violation of the magnanimity of the brave soldier, which scorns to wound the weak, the fallen and the helpless. It was a violation of even the common instincts of fairness, which subsist, as a matter of course, between man and man. It was unconstitutional. It was illegal. It was unjust. It was inhumane. It was unholy. It was pusillanimous. It was mean. And it was each and all of these in the highest or lowest degree. It resembles the acts of savages, and not the deeds of civilized men. The annals of modern times will be searched in vain to furnish its parallel. Execrations rise to our lips, as we read, in the pages of Macaulay, of the hanging of Alice Lisle, and the burning of Elizabeth Gaunt. But Alice Lisle and Elizabeth Gaunt were indicted by grand juries, tried by petit juries, found guilty, and sentenced, in strict accordance with criminal procedure. The forms of law, which the bigoted James, and even the infamous Jeffrey, were careful to observe, were swept aside by Holt and Bingham and Stanton, with a sneer. We turn aside with sickening horror from the recital of the murderous orgies of the Terrorists of the French Revolution--shedding the blood of the young, the tender, the beautiful, the brave. But the Terrorists of France could plead the excuse, that they were driven to madness by the thought, that the invading hosts, encompassing the new-born Republic, were drawing nearer and nearer, every hour, with vengeance and counter-revolution perched upon their banners; and a merciful destiny granted them the grace to expiate their bloody deeds on the same scaffold as their victims. But, in the case of Mary E. Surratt, not a single redeeming feature relieves "The deep damnation of her taking off." Alas! Alas! Right in the centre of the glory which beams from the triumph of the Union and Emancipation, there hangs a dark figure--casting an eclipsing shadow--ever widening--ever deepening--in the eyes of all the coming generations of the just. Transcriber's Notes: Passages in italics are indicated by _italics_. In the original text, the list on pages 72-73 skips from 2 to 7. 
31298	----	[Transcriber's Note: A table of contents has been added for the reader's convenience. Errors listed in the Errata section have been noted with a [Transcriber's Note]; other obvious printer errors have been corrected without note.] THE TRIAL OF THEODORE PARKER, FOR THE "MISDEMEANOR" OF A Speech in Faneuil Hall against Kidnapping, BEFORE THE CIRCUIT COURT OF THE UNITED STATES, AT BOSTON, APRIL 3, 1855. WITH THE DEFENCE, BY THEODORE PARKER, MINISTER OF THE TWENTY-EIGHTH CONGREGATIONAL SOCIETY IN BOSTON. BOSTON: PUBLISHED FOR THE AUTHOR. 1855. Entered according to Act of Congress, in the year 1855, by THEODORE PARKER, In the Clerk's Office of the District Court of the District of Massachusetts. CAMBRIDGE: ALLEN AND FARNHAM, PRINTERS. CONTENTS PREFACE INTRODUCTION DEFENCE ERRATA OTHER WORKS BY THE SAME AUTHOR TO JOHN PARKER HALE AND CHARLES MAYO ELLIS, MAGNANIMOUS LAWYERS, FOR THEIR LABORS IN A NOBLE PROFESSION, WHICH HAVING ONCE IN ENGLAND ITS KELYNG, ITS SAUNDERS, ITS JEFFREYS, AND ITS SCROGGS, AS NOW IN AMERICA ITS SHARKEY, ITS GRIER, ITS CURTIS, AND ITS KANE, HAS YET ALSO SUCH GENEROUS ADVOCATES OF HUMANITY AS EQUAL THE GLORIES OF HOLT AND ERSKINE, OF MACKINTOSH AND ROMILLY, FOR THEIR ELOQUENT AND FEARLESS DEFENCE OF TRUTH, RIGHT, AND LOVE, THIS VOLUME IS DEDICATED, BY THEIR CLIENT AND FRIEND, THEODORE PARKER. PREFACE. TO THE PEOPLE OF THE FREE STATES OF AMERICA. FELLOW-CITIZENS AND FRIENDS,-- If it were a merely personal matter for which I was arraigned before the United States Court, after the trial was over I should trouble the public no further with that matter; and hitherto indeed, though often attacked, nay, almost continually for the last fourteen years, I have never returned a word in defence. But now, as this case is one of such vast and far-reaching importance, involving the great Human Right to Freedom of Speech, and as the actual question before the court was never brought to trial, I cannot let the occasion pass by without making further use of it. When Judge Curtis delivered his charge to the Grand-Jury, June 7th, 1854, I made ready for trial, and in three or four days my line of defence was marked out--the fortifications sketched, the place of the batteries determined; I began to collect arms, and was soon ready for his attack. When that Grand-Jury, summoned with no special reference to me, refused to find a bill and were discharged, I took public notice of the conduct of Judge Curtis, in a Sermon for the Fourth of July.[1] But I knew the friends of the fugitive slave bill at Boston and Washington too well to think they would let the matter sleep; I knew what arts could be used to pack a jury and procure a bill. So I was not at all surprised when I heard of the efforts making by the Slave Power in Boston to obtain an indictment by another grand-jury summoned for that purpose. It need not be supposed that I was wholly ignorant of their doings from day to day. The arrest was no astonishment to me. I knew how much the reputation of this Court and of its Attorney depended on the success of this prosecution. I knew what private malignity was at work. [Footnote 1: 2 Parker's Additional Speeches, 178-283.] After my arraignment I made elaborate preparation for my defence. I procured able counsel, men needing no commendation, to manage the technical details which I knew nothing about and so could not meddle with, while I took charge of other matters lying more level to my own capacity. I thought it best to take an active part in my own defence,--for the matter at issue belonged to my previous studies and general business; my personal friends and the People in general, seemed to expect me to defend myself as well as I could. A great political revolution took place between the Judge's charge and my arraignment, June 7th, and November 29th, 1854, and I thought the Court would not allow the case to come to open argument. For certainly, it would not be a very pleasant thing for Judge Sprague and Judge Curtis, who have taken such pains to establish slavery in Massachusetts, to sit there--each like a travestied Prometheus, chained up in a silk gown because they had brought to earth fire from the quarter opposite to Heaven--and listen to Mr. Hale, and Mr. Phillips and other anti-slavery lawyers, day after day: there were facts, sure to come to light, not honorable to the Court and not pleasant to look at in the presence of a New England community then getting indignant at the outrages of the Slave Power. I never thought the case would come to the jury. I looked over the indictment, and to my unlearned eye it seemed so looped and windowed with breaches that a skilful lawyer might drive a cart and six oxen through it in various directions; and so the Court might easily quash the indictment and leave all the blame of the failure on the poor Attorney--whom they seemed to despise, though using him for their purposes--while they themselves should escape with a whole reputation, and ears which had not tingled under manly speech. Still, it was possible that the trial would come on. Of course, I knew the trial would not proceed on the day I was ordered to appear--the eighty-fifth anniversary of the Boston Massacre. It would be "unavoidably postponed," which came to pass accordingly. The Attorney, very politely, gave me all needed information from time to time. At the "trial," April 3d, it was optional with the defendant's counsel to beat the Government on the indictment before the Court; or on the merits of the case before the Jury. The latter would furnish the most piquant events, for some curious scenes were likely to take place in the examination of witnesses, as well as instruction to be offered in the Speeches delivered. But on the whole, it was thought best to blow up the enemy in his own fortress and with his own magazine, rather than to cut him to pieces with our shot in the open field. So the counsel rent the indictment into many pieces--apparently to the great comfort of the Judges, who thus escaped the battle, which then fell only on the head of the Attorney. At the time appointed I was ready with my defence--which I now print for the Country. It is a Minister's performance, not a lawyer's. Of course, I knew that the Court would not have allowed me to proceed with such a defence--and that I should be obliged to deliver it through the press. Had there been an actual jury trial, I should have had many other things to offer in reference to the Government's evidence, to the testimony given before the grand-jury, and to the conduct of some of the grand-jurors themselves. So the latter part of the defence is only the skeleton of what it otherwise might have been,--the geological material of the country, the Flora and Fauna left out. It would have been better to publish it immediately after the decision of the case: but my _brief_ was not for the printer, and as many duties occurred at that time, it was not till now, in a little vacation from severer toils, that I have found leisure to write out my defence in full. Fellow-Citizens and Friends, I present it to you in hopes that it may serve the great cause of Human Freedom in America and the world; surely, it has seldom been in more danger. THEODORE PARKER. BOSTON, _24th August_, 1855. INTRODUCTION. On Tuesday, the 23d of May, 1854, Charles F. Suttle of Virginia, presented to Edward Greeley Loring, Esquire, of Boston, Commissioner, a complaint under the fugitive slave bill--Act of September 18th, 1850--praying for the seizure and enslavement of Anthony Burns. The next day, Wednesday, May 24th, Commissioner Loring issued the warrant: Mr. Burns was seized in the course of the evening of that day, on the false pretext of burglary, and carried to the Suffolk County Court House in which he was confined by the Marshal, under the above-named warrant, and there kept imprisoned under a strong and armed guard. On the 25th, at about nine o'clock in the morning, the Commissioner proceeded to hear and decide the case in the Circuit Court room, in which were stationed about sixty men serving as the Marshal's guard. Seth J. Thomas, Esquire, and Edward Griffin Parker, Esquire, members of the Suffolk Bar, appeared as counsel for Mr. Suttle to help him and Commissioner Loring make a man a Slave. Mr. Burns was kept in irons and surrounded by "the guard." The Slave-hunter's documents were immediately presented, and his witness was sworn and proceeded to testify. Wendell Phillips, Theodore Parker, Charles M. Ellis, and Richard H. Dana, with a few others, came into the Court room. Mr. Parker and some others, spoke with Mr. Burns, who sat in the dock ironed, between two of the Marshal's guard. After a little delay and conference among these four and others, Mr. Dana interrupted the proceedings and asked that counsel might be assigned to Mr. Burns, and so a defence allowed. To this Mr. Thomas, the senior counsel for the Slave-hunters, objected. But after repeated protests on the part of Mr. Dana and Mr. Ellis, the Commissioner adjourned the hearing until ten o'clock, Saturday, May 27th. On the evening of Friday, May 26th, there was a large and earnest meeting of men and women at Faneuil Hall. Mr. George R. Russell, of West Roxbury, presided; his name is a fair exponent of the character and purposes of the meeting, which Dr. Samuel G. Howe called to order. Speeches were made and Resolutions passed. Mr. Phillips and Mr. Parker, amongst others, addressed the meeting; Mr. Parker's speech, as reported and published in the newspapers, is reprinted in this volume, page 199. While this meeting was in session there was a gathering of a few persons about the Court House, the outer doors of which had been unlawfully closed by order of the Marshal; an attempt was made to break through them and enter the building, where the Supreme Court of Massachusetts was sitting engaged in a capital case; and the Courts of this State must always sit with open doors. In the strife one of the Marshal's guard, a man hired to aid in the Slave-hunt, was killed--but whether by one of the assailing party, or by the Marshal's guard, it is not yet quite clear. It does not appear from the evidence laid before the public or the three Grand-Juries, that there was any connection between the meeting at Faneuil Hall and the gathering at the Court House. Saturday, 27th, at ten o'clock, the Commissioner opened his Court again, his prisoner in irons before him. The other events are well known. Mr. Burns was taken away to Slavery on Friday, June 2d, by an armed body of soldiers with a cannon. The May Term of the Circuit Court at Boston began on the 15th of that month, and the Grand-Jury for that term had already been summoned. Here is the list:-- UNITED STATES CIRCUIT COURT, } MASSACHUSETTS DISTRICT. } May Term, 1854. ss. May 15, 1854. GRAND-JURY. 1 Sworn. Isaac Tower, Randolph, Foreman. 2 " Elbridge G. Manning, Andover. 3 " Asa Angier, " 4 " Ballard Lovejoy, " 5 " Levi Eldridge, Chatham. 6 " Isaac B. Young, " 7 " Josiah Peterson, Duxbury. 8 " James Curtis, " 9 Not Sworn. William Amory, Boston, Excused first day. Member of the bar. 10 Sworn. James P. Bush, " Absent June 28th. 11 " John Clark, " 12 " Charles H. Mills, " 13 " William N. Tyler, " 14 " Samuel Weltch, " 15 " Reuben Nichols, Reading. 16 " Benjamin M. Boyce, " 17 " Ephraim F. Belcher, Randolph. 18 " Thomas S. Brimblecome, Fairhaven. 19 " Obed F. Hitch, " 20 " Lowell Claflin, Hopkinton. 21 " William Durant, Leominster. 22 " Charles Grant, " 23 " Jeremiah B. Luther, Douglas. On the 7th of June, Judge Curtis gave to this Grand-Jury his charge.[2] In that he spoke of the enforcement of the fugitive slave bill; and he charged the Jury especially and minutely upon the Statute of the United States of 1790, in relation to resisting officers in service of process as follows. [Footnote 2: The charge is printed below, at page 170.] That not only those who are present and actually obstruct, resist, and oppose, and all who are present leagued in the common design, and so situated as to be able in case of need, to afford assistance to those actually engaged; but all who, though absent, did procure, counsel, command, or abet others to commit the offence; and all who, by indirect means, by _evincing an express liking, approbation, or assent to the design, were liable as principals_. And he added, "My instruction to you is, that language addressed to persons who immediately afterwards commit an offence, actually intended by the speaker to incite those addressed to commit it, and adapted thus to incite them, is such a counselling, or advising to the crime as the law contemplates, and the person so inciting others is liable to be indicted as a principal," and _it is of no importance that his advice or directions were departed from in respect to the time, or place, or precise mode, or means of committing it_. That Jury remained in session a few weeks: pains were taken to induce them to find bills against the speakers at Faneuil Hall; but they found no indictment under the law of 1790, or that of 1850; they were discharged. On the 22d of September, _venires_ were issued by order of the Court for a new Grand-Jury; and, on the 16th of October, twenty-three were returned by Marshal Freeman, and impanelled. Here is the list of new Grand-Jurors:-- UNITED STATES CIRCUIT COURT, } MASSACHUSETTS DISTRICT. } October Term, 1854. ss. October 16, 1854. GRAND-JURY. 1 Sworn. Enoch Patterson, Jr., Boston, Foreman. 2 " David Alden, " 3 " Stephen D. Abbott, Andover. 4 " Isaac Beal, Chatham. 5 " John Burrill, Reading. 6 " Mathew Cox, Boston. 7 " Richard B. Chandler, Duxbury. 8 " Charles L. Cummings, Douglas. 9 " Charles Carter, Leominster. 10 " Warren Davis, Reading. 11 " William W. Greenough, Boston. 12 " George O. Hovey, " 13 " John M. Howland, Fairhaven. 14 Sworn. Manson D. Haws, Leominster. 15 " John Holbrook, Randolph. Excused. Nathaniel Johnson, Hopkinton, Excused first day, October 16th, for the term. 16 Sworn. George Londen, Duxbury. 17 " Nathan Moore, Andover. 18 " Samuel P. Ridler, Boston. 19 " Christopher Ryder, Chatham. 20 " John Smith, Andover. 21 " Appollos Wales, Randolph. 22 " Samuel L. Ward, Fairhaven. This Grand-Jury was not charged by the Judge upon the statute of 1790, or 1850, but was referred to Mr. Hallett, the Attorney, for the instructions previously given to the Jury that had been discharged, namely, for his charge of June 7th, already referred to. Mr. William W. Greenough, brother-in-law of Judge Curtis, was one of the Jury. They found the following indictment against Mr. Parker:-- UNITED STATES OF AMERICA. _Circuit Court of the United States of America, for the District of Massachusetts._ At a Circuit Court of the United States of America, for the District of Massachusetts, begun and holden at Boston, the aforesaid District, on the sixteenth day of October, in the year of our Lord one thousand eight hundred and fifty-four (the fifteenth day of said October being Sunday). The Jurors of the United States within the aforesaid District, on their oath, present. 1st. That heretofore to wit,--on the twenty-fourth day of May, in the year of our Lord one thousand eight hundred and fifty-four, a certain warrant and legal process directed to the Marshal of the said District of Massachusetts, or either of his Deputies, was duly issued under the hand and seal of Edward G. Loring, Esquire, who was then and there a Commissioner of the Circuit Court of the United States, for said District, which said warrant and legal process was duly delivered to Watson Freeman, Esquire, who was then and there an officer of the United States, to wit, Marshal of the United States, for the said District of Massachusetts, at Boston, in the District aforesaid, on the said twenty-fourth day of May in the year aforesaid, and was of the purport and effect following, that is to say:-- UNITED STATES OF AMERICA. MASSACHUSETTS DISTRICT, SS. To the Marshal of our District of Massachusetts, or either of his Deputies, _Greeting_: In the name of the President of the United States of America, you are hereby commanded forthwith to apprehend Anthony Burns, a negro man, alleged now to be in your District, charged with being a fugitive from labor, and with having escaped from service in the State of Virginia, if he may be found in your precincts, and have him forthwith before me, Edward G. Loring, one of the Commissioners of the Circuit Court of the United States for the said District, then and there to answer to the complaint of Charles F. Suttle, of Alexandria, in the said State of Virginia, Merchant, alleging under oath that the said Anthony Burns on the twenty-fourth day of March last, did and for a long time prior thereto had, owed service and labor to him the said Suttle, in the said State of Virginia, under the laws thereof, and that, while held to service there by said Suttle, the said Burns escaped from the said State of Virginia, into the State of Massachusetts; and that the said Burns still owes service and labor to said Suttle in the said State of Virginia, and praying that said Burns may be restored to him said Suttle in said State of Virginia, and that such further proceedings may then and there be had in the premises as are by law in such cases provided. Hereof fail not, and make due return of this writ, with your doings therein before me. Witness my hand and seal at Boston, aforesaid, this twenty-fourth day of May, in the year one thousand eight hundred and fifty-four. EDWARD G. LORING, _Commissioner_. [L.S.] And the Jurors aforesaid do further present, that the said warrant and legal process, being duly issued and delivered as aforesaid, afterwards to wit, on the twenty-fifth day of May, in the year aforesaid, at Boston in said District, the said Watson Freeman then and there being an officer of the said United States, to wit Marshal of the District aforesaid, and in pursuance of said warrant and legal process, did then and there arrest the said Anthony Burns named therein, and had him before the said Edward G. Loring, Commissioner, for examination--and thereupon the hearing of the said case was adjourned by the said Commissioner until Saturday the twenty-seventh day of May, in the year aforesaid, at ten o'clock in the forenoon; and the said Marshal, who had so made return of the said Warrant, was duly ordered by the said Commissioner to retain the said Anthony Burns in his custody, and have him before the said Commissioner on the said twenty-seventh day of May in the year aforesaid, at the Court House in said Boston, which said last-mentioned legal process and order was duly issued under the hand of the said Edward G. Loring, Commissioner, and was of the purport and effect following, that is to say: U.S. OF AMERICA, DISTRICT OF MASSACHUSETTS. _Boston, May 25_, 1854. And now the hearing of this case being adjourned to Saturday, May 27, 1854, 10 A.M., the said Marshal, who has made return of this warrant, is hereby ordered to retain the said Anthony Burns in his custody, and have him before me at the time last mentioned, at the Court House in Boston, for the further hearing of the Complaint on which the warrant was issued. EDWARD G. LORING, _Commissioner_. And the Jurors aforesaid do further present, that on the twenty-sixth day of May, in the year aforesaid, in pursuance of the warrant and legal process aforesaid, and of said further legal process and order last mentioned, the said Watson Freeman, Marshal as aforesaid, then and there, at the said Court House in said Boston, had in his custody the person of the said Anthony Burns, in the due and lawful execution of the said warrant and legal process, and of the said further legal process and order, in manner and form as he was therein commanded--and one Theodore Parker, of Boston, in said District, Clerk, then and there well knowing the premises, with force and arms did knowingly and wilfully obstruct, resist, and oppose the said Watson Freeman, then and there being an officer of the said United States, to wit, Marshal of the said District, in serving and attempting to serve and execute the said warrant and legal process, and the said further legal process and order in manner and form as he was therein commanded, to the great damage of the said Watson Freeman, to the great hinderance and obstruction of Justice, to the evil example of all others, in like case offending, against the peace and dignity of the said United States, and contrary to the form of the Statute in such case made and provided. 2d. And the Jurors aforesaid, on their oath aforesaid, do further present, that on the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and fifty-four, at Boston, in said District, one Theodore Parker, of Boston, in said District, Clerk, with force and arms, did knowingly and wilfully obstruct, resist, and oppose one Watson Freeman, who was then and there the Marshal of the United States of America, for the District of Massachusetts, and an officer of the said United States, in serving and attempting to serve and execute a certain warrant and legal process, which before that time, to wit, on the twenty-fourth day of May, in the year of our Lord one thousand eight hundred and fifty-four, had been duly issued under the hand and seal of Edward G. Loring, Esquire, a Commissioner of the Circuit Court of the United States, for said District of Massachusetts, and directed to the Marshal of the District of Massachusetts, or either of his deputies, which said warrant and legal process the said Freeman, in the due and lawful execution of his said office, had then and there in his hands and possession for service of the same, and which he was then and there serving and attempting to serve and execute; which said warrant commanded the said Freeman to apprehend one Anthony Burns and to have him forthwith before the said Commissioner, then and there to be dealt with according to law. Against the peace and dignity of the said United States, and contrary to the form of the Statute in such case made and provided. 3d. And the Jurors aforesaid, on their oath aforesaid, do further present, that on the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and fifty-four, at Boston, in said District, the said Theodore Parker, with force and arms, did knowingly and wilfully obstruct, resist, and oppose one Watson Freeman, who was then and there an officer of the said United States, to wit, the Marshal of the United States for the said District of Massachusetts, in serving and attempting to serve and execute a certain legal process which before that time, to wit, on the 25th day of May, in the year of our Lord one thousand eight hundred and fifty-four, had been duly issued under the hand of Edward G. Loring, who was then and there a Commissioner of the Circuit Court of the United States, for the said District of Massachusetts, and was then and there duly empowered to issue said legal process, and which said legal process was duly committed for obedience and execution to the said Freeman, Marshal as aforesaid, wherein and whereby and in pursuance of the command whereof the said Freeman was then and there lawfully retaining, detaining, and holding one Anthony Burns for the further hearing and determination of a certain complaint, upon which a warrant before that time, to wit, on the twenty-fourth day of said May, had been duly issued under the hand and seal of the said Commissioner, by force of which warrant the said Anthony Burns had been duly arrested and apprehended by the said Freeman, and in execution of the same, on the twenty-fifth day of said May had been brought by the said Freeman before the said Commissioner. 4th. And the jurors aforesaid, on their oath aforesaid, do further present, that on the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and fifty-four, at Boston, in said district, the said Theodore Parker, with force and arms, did knowingly and wilfully obstruct, resist, and oppose one Watson Freeman, who was then and there an officer of the said United States, to wit, Marshal of the United States, for the District of Massachusetts, in serving and attempting to serve and execute a certain warrant and legal process, which before that time, to wit, on the twenty-fourth day of May, in the year of our Lord one thousand eight hundred and fifty-four, had been duly issued under the hand and seal of Edward G. Loring, Esquire, a Commissioner of the Circuit Court of the United States, for the District of Massachusetts, and directed to the Marshal of the said District of Massachusetts or either of his Deputies, which the said Freeman, in the due and lawful execution of his said office, had then and there in his hands and possession for service of the same, and which he was then and there serving and attempting to serve and execute; which warrant commanded the said Freeman to apprehend one Anthony Burns, and to have him forthwith before the said commissioner and that such further proceedings might then and there be had in the premises, as are by law in such cases provided,--and also in serving and attempting to serve and execute a certain further legal process which before that time, to wit, on the twenty-fifth day of May, in the year aforesaid, had been duly issued under the hand of the said Commissioner, and duly committed for obedience and execution to the said Freeman, wherein and whereby, and in pursuance of the command whereof, the said Freeman was then and there lawfully retaining, detaining, and holding the said Anthony Burns for the further hearing and determination of a certain complaint upon which the warrant aforesaid had been issued by the said Commissioner. 5th. And the Jurors aforesaid on their oath aforesaid, do further present that one Theodore Parker, of Boston, in said District, Clerk, on the 26th day of May, in the year of our Lord one thousand eight hundred and fifty-four, at Boston, in the said District of Massachusetts, with force and arms, in and upon one Watson Freeman, then and there in the peace of the said United States being, an assault did make, he the said Freeman also then and there being an officer of the said United States, to wit, Marshal of the United States, for the said District of Massachusetts, and then and there also being in the due and lawful discharge of his duties as such officer. And so the jurors aforesaid, on their oath aforesaid, do say and present that the said Theodore Parker, at Boston aforesaid, on the said twenty-sixth day of said May, with force and arms assaulted the said Freeman as such officer, and knowingly and wilfully obstructed, resisted, and opposed him in the discharge of his lawful duties in manner and form aforesaid, against the peace and dignity of the said United States, and contrary to the form of the Statute in such cases made and provided. And the Jurors aforesaid, on their oath aforesaid, do further present that the said Theodore Parker was first apprehended in said District of Massachusetts, after committing the aforesaid offence, against the peace and dignity of the said United States, and contrary to the form of the statute in such case made and provided. A true bill. ENOCH PATTERSON, JR., _Foreman_. B.F. HALLETT, _United States Attorney for the District of Massachusetts_. Similar indictments were found against Mr. Phillips, Mr. Stowell, Rev. T.W. Higginson, John Morrison, Samuel T. Proudman, and John C. Cluer. Mr. Parker was arraigned on Wednesday, November 29th, and ordered to recognize in bonds of $1,500 for his appearance at that Court, on the 5th of March, 1855. His bondsmen were Messrs. Samuel May, Francis Jackson, and John R. Manley; his counsel were Hon. John P. Hale, and Charles M. Ellis, Esq. The other gentlemen were arraigned afterwards at different times. After considerable uncertainty about the engagements of Hon. Justice Curtis, Tuesday, April 3d, was fixed for the commencement of the trials. At that time there appeared as counsel for the government, Hon. Benjamin F. Hallett, District Attorney, and Elias Merwin, Esq., formerly a law partner of Judge Curtis; on the other side were Hon. John P. Hale, and Charles M. Ellis, Esq., for Mr. Parker; Wm. L. Burt, Esq., John A. Andrew, Esq., and H.F. Durant, Esq., counsel for Messrs. Phillips, Higginson, Stowell, Bishop, Morrison, Proudman, and Cluer. Mr. Hale, as senior counsel, stated to the court that the counsel for the defendants in several of the cases had conferred, and concluded--on the supposition that the Court and Government would assent to the plan as most for their own convenience, as well as that of the defendants' counsel--to file the like motion on the different cases; and, instead of each counsel going over the whole ground for each case, to divide the matter presented for debate, and for each to discuss some particular positions on behalf of them all. This was assented to; and motions, of which the following is a copy, were filed in the several cases:-- CIRCUIT COURT OF THE UNITED STATES, MASSACHUSETTS DISTRICT, SS. _United States by Indictment_ v. _Theodore Parker._ And now said Theodore Parker comes and moves that the indictment against him be quashed, because, "1. The writ of venire for the jury that found said indictment was directed to and returned by Watson Freeman, the Marshal, who was not an indifferent person, and it was not served and returned as the law directs. "2. Because said Jury was not an impartial Jury of the District, designated as the laws require, but the jury Districts for this court embrace but a portion of the District and of the population, and said jury was in fact chosen and designated from but a fraction of the District and contrary to law. "3. Because the matters and things alleged in said indictment do not constitute any crime under the statute on which said indictment is framed, the said statute not embracing them, or being, so far as it might embrace them, repealed by the statute of eighteen hundred and fifty. "4. Because said indictment does not allege and set forth fully and sufficiently the authority and the proceedings whereon the alleged warrant and order were based, or facts sufficient to show that the alleged process and order were lawfully issued by any person duly authorized, and his authority and jurisdiction, and that the same were within such jurisdiction, and issued by the authority of the law, and originated, issued, and directed as the law prescribes; said warrant and order not being alleged to have issued from any court or tribunal of general or special jurisdiction, but by a person vested with certain specific statute authority. "5. Because said indictment and the several counts thereof are bad on the face of them, as follows, viz.:-- "First, it nowhere appearing that the same were found by a grand-jury, because the second and third counts do not conclude, against the form of the statute, and have no conclusion, because the third and fourth counts do not set forth the estate, degree, or mystery of the person therein charged. "Because said indictment and the counts thereof are repugnant and inconsistent, the same being based on an alleged obstruction, resistance, and opposition to the service of an action, order, or warrant, which is therein averred to have been already served, executed, and returned. "Because the first and fifth counts are double. "Because the alleged order of May 25th, referred to therein, was a void and illegal, order. "Because, if the alleged warrant was served as therein alleged, said Watson Freeman did not, and by law could not thereafter, hold the person described therein, under any process or order. "And because the same do not set forth and allege fully and specifically the acts charged to be offences against the statute, so as to inform said party charged, of the nature and cause of the accusation. "6. Because the warrant set forth and referred to therein was void on its face, and issued from and ran into a jurisdiction not authorized by law, and directed the arrest of a person without legal cause, and because said indictment is otherwise bad, uncertain, and insufficient." Mr. Wm. L. Burt commenced the argument of the motions, and presented several of the points. He was followed by Mr. C.M. Ellis, J.A. Andrew, and H.F. Durant, who severally discussed some of the grounds of the motions. Elias Merwin, Esquire, and Mr. Attorney Hallett, replied. The Court stated that they did not wish to hear Hon. John P. Hale, who was about to rejoin and close in support of the motion, and decided that the allegation, on the indictment, that Edward G. Loring was a Commissioner of the Circuit Court of the United States for said District, was not a legal averment that he was such a Commissioner as is described in the bill of 1850, and therefore the indictments were bad. The Court said they supposed it to be true that Mr. Loring was such a Commissioner, and that his authority could be proved by producing the record of his appointment; that they did not suppose the absence of this averment could be of any practical consequence to the defendants, so far as respected the substantial merits of the cases; and it was true the objection to the indictment was "technical;" but they held it sufficient, notwithstanding the averment that the warrant was "_duly issued_," and ordered the indictment against Stowell to be quashed. On every other point, save that that the Court could properly construct the Jury _roster_ and return the Jury from a portion of the District, the Judge said they would express no opinion. Mr. Hallett insisted on his right to enter a _nolle prosequi_ in the other cases; and the Judges decided that, though all the cases had been heard upon the motion, yet as it could make no difference whether an entry were made that this indictment be quashed, or an entry of _nolle prosequi_, the Attorney might enter a _nolle prosequi_ if he chose to do so _then_, before the Court passed any order on the motions. Mr. Hallett accordingly entered a _nolle prosequi_ in all the other cases, and the whole affair was quashed.[3] [Footnote 3: See Law Reporter for June, 1855.] DEFENCE. MAY IT PLEASE THE COURT: GENTLEMEN OF THE JURY.--It is no trifling matter which comes before you this day. You may hereafter decide on millions of money, and on the lives of your fellow men; but it is not likely that a question of this magnitude will ever twice be brought before the same jurymen. Opportunities to extend a far-reaching and ghastly wickedness, or to do great service for mankind, come but seldom in any man's life. Your verdict concerns all the people of the United States; its influence will reach to ages far remote, blessing or cursing whole generations not yet born. The affair is national in its width of reach,--its consequences of immense duration. In addressing you, Gentlemen, my language will be more didactic than rhetorical, more like a lecture, less like a speech; for I am not a lawyer but a minister, and do not aim to carry a Measure, which with you will go of its own accord, so much as to set forth a Principle that will make such prosecutions as impossible hereafter, as a conviction now is to-day. Gentlemen, I address you provisionally, as Representatives of the People. To them, my words are ultimately addressed,--to the People of the Free States of America. I must examine many things minutely, not often touched upon in courts like this. For mine is a Political Trial; I shall treat it accordingly. I am charged with no immoral act--with none even of selfish ambition. It is not pretended that I have done a deed, or spoken a word, in the heat of passion, or vengeance, or with calculated covetousness, to bring money, office, or honor, to myself or any friend. I am not suspected of wishing to do harm to man or woman; or with disturbing any man's natural rights. Nay, I am not even charged with such an offence. The Attorney and the two Judges are of one heart and mind in this prosecution; Mr. Hallett's "Indictment" is only the beast of burthen to carry to its own place Mr. Curtis's "Charge to the Grand-Jury," fit passenger for fitting carriage! The same tree bore the Judge's blossom in June, and the Attorney's fruit in October,--both reeking out the effluvia of the same substance. But neither Attorney nor Judge dares accuse me of ill-will which would harm another man, or of selfishness that seeks my own private advantage. No, Gentlemen of the Jury, I am on trial for my love of Justice; for my respect to the natural Rights of Man; for speaking a word in behalf of what the Declaration of Independence calls the "self-evident" Truth,--that all men have a natural, equal, and unalienable Right to Life, Liberty, and the pursuit of Happiness. I am charged with words against what John Wesley named, the "Sum of all Villanies," against a national crime so great, that it made freethinking Mr. Jefferson, with all his "French Infidelity," "tremble" when he remembered "that God is just." I am on trial for my manly virtue,--a Minister of the Christian Religion on trial for keeping the Golden Rule! It is alleged that I have spoken in Boston against kidnapping in Boston; that in my own pulpit, as a minister, I have denounced Boston men for stealing my own parishioners; that as a man, in Faneuil Hall, the spirit of James Otis, of John Hancock, and three Adams's about me, with a word I "obstructed" the Marshal of Boston and a Boston Judge of Probate, in their confederated attempts to enslave a Boston man. When the Government of the United States has turned kidnapper, I am charged with the "misdemeanor" of appealing from the Atheism of purchased officials to the Conscience of the People; and with rousing up Christians to keep the golden rule, when the Rulers declared Religion had nothing to do with politics and there was no Law of God above the fugitive slave bill! Such are the acts charged. Gentlemen of the Jury, you are summoned here to declare them a Crime, and then to punish me for this "offence!" You are the Axe which the Government grasps with red hand to cleave my head asunder. It is a trial where Franklin Pierce, transiently President of the United States, and his official coadjutors,--Mr. Caleb Cushing, Mr. Benj. R. Curtis, and Mr. Benj. F. Hallett,--are on one side, and the People of the United States on the other. As a Measure, your decision may send me to jail for twelve months; may also fine me three hundred dollars. To me personally it is of very small consequence what your verdict shall be. The fine is nothing; the imprisonment for twelve months--Gentlemen, I laugh at it! Nay, were it death, I should smile at the official gibbet. A verdict of guilty would affix no stain to my reputation. I am sure to come out of this trial with honor--it is the Court that is sure to suffer loss--at least shame. I do not mean the Court will ever feel remorse, or even shame, for this conduct; I am no young man now, I know these men,--but the People are sure to burn the brand of shame deep into this tribunal. The blow of that axe, if not parried, will do me no harm. But it is not I, merely, now put to trial. Nay, it is the unalienable Rights of Humanity, it is truths self-evident. For on the back of that compliant Measure, unseen, there rides a Principle. The verdict expected of you condemns liberal institutions: all Religion but priestcraft--the abnegation of religion itself; all Rights but that to bondage--the denial of all rights. The word which fines me, puts your own purse in the hands of your worst enemies; the many-warded key which shuts me in jail, locks your lips forever--your children's lips forever. No complaint against oppression hereafter! Kidnapping will go on in silence, but at noonday, not a minister stirring. Meeting-houses will be shut; all court houses have a loaded cannon at their door, chains all round them, be stuffed with foreign soldiers inside, while commissioners swear away the life, the liberty, and even the Estate of the subjected "citizens." All Probate Judges will belong to the family of man-stealers. Faneuil Hall will be shut, or open only for a "Union Meeting," where the ruler calls together his menials to indorse some new act of injustice,--only creatures of the Government, men like the marshal's guard last June, allowed to speak words paid for by the People's coward sweat and miserable blood. The blow which smites my head will also cleave you asunder from crown to groin. Your verdict is to vindicate Religion with Freedom of Speech, and condemn the stealing of men; or else to confirm Kidnapping and condemn Religion with Freedom of Speech. You are to choose whether you will have such men as Wendell Phillips for your advisers, or such as Benjamin F. Hallett and Benjamin R. Curtis for your masters, with the marshal's guard, for their appropriate servants. Do you think I doubt how you will choose? Already a power of iniquity clutches at your children's throat; stabs at their life--at their soul's life. I stand between the living tyrant and his living victim; aye, betwixt him and expected victims not yet born,--your children, not mine. I have none to writhe under the successful lash which tyrants now so subtly braid therewith, one day, to scourge the flesh of well-descended men. I am to stand the champion of human Rights for generations yet unborn. It is a sad distinction! Hard duties have before been laid on me,--none so obviously demanding great powers as this. Whereto shall I look up for inspiring aid? Only to Him who gave words to the slow tongue of Moses and touched with fire Esaias' hesitating lips, and dawned into the soul of tent-makers and fishermen with such great wakening light, as shining through them, brought day to nations sitting in darkness, yet waiting for the consolation. May such Truth and Justice enable me also, to speak a testimony unto the Gentiles; He who chose the weak things, to bring to nought the mighty, may not despise such humble services as mine. * * * * * Gentlemen of the Jury, my ministry deals chiefly with the Laws of God, little with the statutes of men. My manhood has been mainly passed in studying absolute, universal truth, teaching it to men, and applying it to the various departments of life. I have little to do with courts of law. Yet I am not now altogether a stranger to the circuit court room of the United States, having been in it on five several occasions before. 1. A Polish exile,--a man of famous family, ancient and patrician before Christendom had laid eyes on America, once also of great individual wealth, a man of high rank alike acquired and inherited, once holding a high place at the court of the Czar,--became a fugitive from Russian despotism, seeking an asylum here; he came to the circuit court room to lecture on the Roman Law. I came to contribute my two mites of money, and receive his wealth of learning. 2. The next time, I came at the summons of Thomas Sims. For a creature of the slave-power had spontaneously seized that poor and friendless boy and thrust him into a dungeon, hastening to make him a slave,--a beast of burthen. He had been on his mock trial seven days, and had never seen a Judge, only a commissioner, nor a Jury; no Court but a solitary kidnapper. Some of his attendants had spoken of me as a minister not heedless of the welfare and unalienable rights of a black man fallen among a family of thieves. I went to the court house. Outside it was belted with chains. In despotic Europe I had seen no such spectacle, save once when the dull tyrant who oppressed Bavaria with his licentious flesh, in 1844 put his capital in a brief state of siege and chained the streets. The official servant of the kidnapper, club in hand, a policeman of this city, goaded to his task by Mayor Bigelow and Marshal Tukey,--men congenitally mingled in such appropriate work,--bade me "Get under the chain." I pressed it down and went over. The Judges of our own Supreme Court, _they went under_,--had gone out and in, beneath the chain! How poetry mingles with fact! The chain was a symbol, and until this day remaineth the same chain, untaken away in the reading of the fugitive slave bill; and when the law of Massachusetts is read, the chain is also upon the neck of that court! Within the court house was full of armed men. I found Mr. Sims in a private room, illegally, in defiance of Massachusetts law, converted into a jail to hold men charged with no crime. Ruffians mounted guard at the entrance, armed with swords, fire-arms, and bludgeons. The door was locked and doubly barred besides. Inside the watch was kept by a horrid looking fellow, without a coat, a naked cutlass in his hand, and some twenty others, their mouths nauseous with tobacco and reeking also with half-digested rum paid for by the city. In such company, I gave what consolation Religion could offer to the first man Boston ever kidnapped,--consolations which took hold only of eternity, where the servant is free from his master, for there the wicked cease from troubling. I could offer him no comfort this side the grave. 3. I visited the United States court a third time. A poor young man had been seized by the same talons which subsequently griped Sims in their poison, deadly clutch. But that time, wickedness went off hungry, defeated of its prey; "for the Lord delivered him out of their hands," and Shadrach escaped from that Babylonish furnace, heated seven times hotter than its wont: no smell of fire had passed on him. But the rescue of Shadrach was telegraphed as "treason." The innocent lightning flashed out the premeditated and legal lie,--"it is levying war!" What offence it was in that Fourth One who walked with the Hebrew children, "making their good confession," and sustained the old Shadrach, Meshach, and Abednego, I know not. But the modern countrymen of the African Shadrach, charged with some great crime, were haled into this court to be punished for their humanity! I came to look on these modern Angels of the Deliverance, to hear counsel of Mr. Dana, then so wise and humane, and to listen to the masterly eloquence which broke out from the great human heart of my friend, Mr. Hale, and rolled like the Mississippi, in its width, its depth, its beauty, and its continuous and unconquerable strength. 4. The fourth time, a poor man had been kidnapped, also at night, and forced into the same illegal jail. He sat in the dock--an innocent man, to be made into a beast. The metamorphosis had begun;--he was already in chains and his human heart seemed dead in him; sixty ruffians were about him, aiding in this drama, hired out of the brothels and rum-shops for a few days, the lust of kidnapping serving to vary the continual glut of those other and less brutal appetites of unbridled flesh. While that "trial" lasted, whoredom had a Sabbath day, and brawlers rested from their toil. Opposite sat the Boston Judge of Probate, and the Boston District Attorney,--the Moses and Elias of this inverted transfiguration; there sat the marshal, two "gentlemen" from Virginia, claiming that a Boston man was their beast of burthen, owing service and labor in Richmond; two "lawyers," "members of the Suffolk bar," pistols in their coats, came to support the allegation and enforce the claim. Honorable men stood up to defend him. There is one of them,--to defend me [Charles M. Ellis.] You know very well the rest of that sad story,--the mock trial of Anthony Burns lasted from May 25th till June 2d. I was here in all the acts of that Tragedy. My own life was threatened; friend and foe gave me public or anonymous warning. I sat between men who had newly sworn to kill me, my garments touching theirs. The malaria of their rum and tobacco was an offence in my face. I saw their weapons, and laughed as I looked those drunken rowdies in their coward eye. They touch me! 5. The fifth time I came here at the summons of an officer of this court,--very politely delivered, let me say it to his credit,--indicted and arrested for a "misdemeanor." I gave bail and withdrew. 6. The sixth time,--Gentlemen,--it is the present, whereof I shall erelong have much to say. * * * * * At the first visit I found only scholarly and philanthropic gentlemen, coming out of sympathy with a Polish exile, a defeated soldier of freedom, from his broken English to learn sound Roman Law. On each of the other visits I have been in quite different company. I have invariably met this Honorable Court, its kinsfolk and its most intimate friends,--some member of the family of the distinguished Judge, now fitly presiding over this trial. 1. It was Mr. George T. Curtis, the only brother of the honorable Justice now on the bench,--born of the same mother and father,--who had the glory of kidnapping Mr. Sims; it was he who seized Shadrach, and gave such witness against one of the Angels of the Deliverance, and then came back and enlarged his testimony; it was he who declared the rescue an act of "treason;" he who hung the court house in chains, and brought down the pliant neck of the Massachusetts Judges beneath that symbolic line of linked fetters long drawn out. To what weak forces will such necks bow when slavery commands! 2. It was the honorable Judge now on the distinguished bench who tried men for the rescue of Shadrach. How he tried them is well known. 3. It was Edward G. Loring, another of this family so distinguished, who kidnapped Mr. Burns and held him in irons; he whose broom swept up together the marshal's guard; he who advised Mr. Burns's counsel to make no defence,--"put no obstructions in the way of his going back, as he probably will;" he who, in the darkness of midnight, sought to sell his victim, before he had examined the evidence which might prove him a free man; he who delivered him up as a slave, against evidence as against law. 4. Another of the same family, William W. Greenough, brother-in-law of Hon. Judge Curtis, was one of the grand-jury which found the indictment against me, and "the most active of all in that work." 5. When I came here on the 29th of last November, the Hon. Judge Curtis sat on the bench and determined the amount of my bail, and the same eye which had frowned with such baleful aspect on the rescuers of Shadrach, quailed down underneath my look and sought the ground. * * * * * In thus mentioning my former visits to the court, I but relate the exploits of the Hon. Justice Curtis, of his kinsfolk and friends, adding to their glory and their renown. Their chief title to distinction rests on their devotion to the fugitive slave bill. It and their honor are "one and inseparable." Once only humanity and good letters brought me here, I met only scholars and philanthropists; on five other occasions, when assaults on freedom compelled my attendance, I have been confronted and surrounded with the loyalty of the distinguished Judge and his kinsfolk and friends, valiantly and disinterestedly obeying the fugitive slave bill "with alacrity;" patriotically conquering their prejudices against man-stealing--if such they ever had;--and earning for themselves an undying reputation by "saving the Union" from Justice, Domestic Tranquillity, general Welfare, and the Blessings of Liberty. If I am to be arraigned for any act, I regard it as a special good fortune that I am charged with such deeds, with seeking to arouse the noblest emotions of Human Nature; and by means of the grandest Ideas which Human History has brought to light. I could not have chosen nobler deeds in a life now stretching over nearly half a hundred years. I count it an honor to be tried for them. Nay, it adds to my happiness to look at the Court which is to try me--for if I were to search all Christendom through, nay, throughout all Heathendom, I know of no tribunal fitter to try a man for such deeds as I have done. I am fortunate in the charges brought; thrice fortunate in the judges and the attorney,--the Court which is to decide;--its history and character are already a judgment. 6. For my sixth visit, I was recognized to appear on the fifth of March, 1855--the eighty-fifth anniversary of the Boston Massacre. I might have been bound over to any other of the great days of American history--22d of December, 19th of April, 17th of June, or the 4th of July. But as I am the first American ever brought to trial for a speech in Faneuil Hall against kidnapping; as I am the first to be tried under the act of 1790 for "obstructing an officer" with an argument, committing a "misdemeanor" by a word which appeals to the natural justice of mankind, so there could not perhaps be a fitter time chosen. For on the fifth of March, 1770, British despotism also delivered its first shot into the American bosom. Not far from this place the hand of George III. wounded to death five innocent citizens of Boston,--one of them a negro. It was the first shot Britain ever fired into the body of the American people, then colonial subjects of the king-power. That day the fire was not returned,--only with ringing of bells and tumult of the public, with words and resolutions. The next day that American blood lay frozen in the street. Soon after the British government passed a law exempting all who should aid an officer in his tyranny from trial for murder in the place where they should commit their crime. Mr. Toucey has humbly copied that precedent of despotism. It was very proper that the new tyranny growing up here, should select that anniversary to shoot down freedom of thought and speech among the subjects of the slave-power. I welcomed the omen. The Fifth of March is a red-letter day in the calendar of Boston. The Court could hardly have chosen a better to punish a man for a thought and a word, especially a Boston man, for such a word in Faneuil Hall--a word against man-stealing. But I knew the case would never come to trial on that day--of course it was put off. Mr. Sims and Mr. Burns were accused of no crime but birth from a mother whom some one had stolen. They had only a mock trial, without due process of law, with no judge, no jury, no judicial officer. But I, accused of a grave offence, am to enjoy a trial with due process of law. It is an actual judge before me and another judge at his side, both judicial officers known to the constitution. I know beforehand the decision of the court--its history is my judgment. Justice Curtis's Charge of last June, would make my daily talk a "misdemeanor," my public preaching and my private prayers a "crime," nay, my very existence is constructively an "obstruction" to the marshal. On that side my condemnation is already sure. But there is another element. Gentlemen of the Jury, the judges and attorney cannot lay their hand on me until you twelve men with one voice say, "Yes! put him in jail." In the mock trial of Sims and Burns it was necessary to convince only a single official of the United States Court, a "ministerial" officer selected and appointed to do its inferior business, a man who needed no conviction, no evidence but the oath of a slave-hunter and the extorted "admission" of his victim, an official who was to have ten dollars for making a slave, five only for setting free a man! But you are a Massachusetts Jury, not of purchased officials, but of honest men. I think you have some "prejudices" to conquer in favor of justice. It has not appeared that you are to be paid twice as much for sending me to jail, as for acquitting me of the charge. I doubt that you have yet advised my counsel to make no defence, "put no obstructions in the way" of my being sent to jail as "he probably will." Gentlemen, a United States Commissioner has his place on condition that he performs such services as his masters "require." These United States Judges have their seat in consequence of services rendered to the ruling power of America, and for others of like sort yet to be paid to the stealers of men. Other rewards shine before them alluring to new service,--additional salary can pay additional alacrity. But you, Gentlemen, are not office-holders nor seekers of office, not hoping to gain money, or power, or honor, by any wickedness. You are to represent the unsophisticated Conscience of the People,--not the slave-power, but the power of Freedom. It is to you I shall address my defence! MY defence? No, Gentlemen, YOUR defence, the defence of your own Rights, inherent in your national Institutions as Americans, ay, in your Nature as Men. It is a singular good fortune that to you, as judges, I am pleading your own cause. You have more interest at stake than I. For at death my name will perish, while children and children's children, I trust, will gently mingle your memories in that fair tide of human life which never ends. * * * * * So much have I said by way of introduction, treating only of the accidents pertaining to this case. I will now come to the Primary Qualities and Substance thereof. This is a Political Trial. In _form_, I am charged with violating a certain statute never before applied to actions like mine; never meant to apply to such actions; not legally capable of such application. But in _fact_, my offence is very different from what the indictment attempts to set forth. The judges know this; the attorney knows it, and "never expected to procure a conviction." It is your cause, even more than mine, that I plead. So it concerns you to understand the whole matter thoroughly, that you may justly judge our common cause. To make the whole case clear, I will _land_ it out into four great parcels of matter, which your mind can command at once, and then come to the details of each, ploughing it all over before your face, furrow by furrow. I shall speak, I. Of the State of Affairs in America which has led to this prosecution,--the Encroachments of a Power hostile to Democratic Institutions. II. Of the Mode of Operation pursued by this Encroaching Power, in other times and in our own,--of Systematic Corruption of the Judiciary. III. Of the great Safeguard which has been found serviceable in protecting Democratic Institutions and the Rights of Man they are designed to defend,--of the Trial by Jury. IV. Of the Circumstances of this special case, UNITED STATES _versus_ THEODORE PARKER. I shall speak of each in its order, and begin at the head. I. OF THE STATE OF AFFAIRS IN AMERICA, WHICH HAS LED TO THIS PROSECUTION--THE ENCROACHMENTS OF A POWER HOSTILE TO DEMOCRATIC INSTITUTIONS. In a republic where all emanates from the People, political institutions must have a Basis of Idea in the Nation's Thought, before they can acquire a Basis of Fact in the Force of the Nation. Now in America there are two diverse Ideas recognized as principles of Action--the Idea of Freedom and the Idea of Slavery. Allow me to read my analysis and description of each. The Idea of Freedom first got a national expression on the Fourth of July, 1776. Here it is. I put it in a philosophic form. There are five points to it. First, All men are endowed by their Creator with certain natural rights, amongst which is the right to life, liberty, and the pursuit of happiness. Second, These rights are unalienable; they can be alienated only by the possessor thereof; the father cannot alienate them for the son, nor the son for the father; nor the husband for the wife, nor the wife for the husband; nor the strong for the weak, nor the weak for the strong; nor the few for the many, nor the many for the few; and so on. Third, In respect to these, all men are equal; the rich man has not more, and the poor less; the strong man has not more, and the weak man less:--all are exactly equal in these rights, however unequal in their powers. Fourth, It is the function of government to secure these natural, unalienable, and equal rights to every man. Fifth, Government derives all its divine right from its conformity with these ideas, all its human sanction from the consent of the governed. That is the Idea of Freedom. I used to call it "the American Idea;" that was when I was younger than I am to-day. It is derived from human nature; it rests on the immutable Laws of God; it is part of the natural religion of mankind. It demands a government after natural Justice, which is the point common between the conscience of God and the conscience of mankind; it is the point common also between the interests of one man and of all men. Now this government, just in its substance, in its form must be democratic: that is to say, the government of all, by all, and for all. You see what consequences must follow from such an idea, and the attempt to reënact the Law of God into political institutions. There will follow the freedom of the people, respect for every natural right of all men, the rights of their body and of their spirit--the rights of mind and conscience, heart and soul. There must be some restraint--as of children by their parents, as of bad men by good men; but it will be restraint for the joint good of all parties concerned; not restraint for the exclusive benefit of the restrainer. The ultimate consequence of this will be the material and spiritual welfare of all--riches, comfort, noble manhood, all desirable things. That is the Idea of Freedom. It appears in the Declaration of Independence; it reappears in the Preamble to the American Constitution, which aims "to establish Justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of Liberty." That is a religious idea; and when men pray for the "Reign of Justice" and the "Kingdom of Heaven" to come on earth politically, I suppose they mean that there may be a Commonwealth where every man has his natural rights of mind, body, and estate. * * * * * Next is the Idea of Slavery. Here it is. I put it also in a philosophic form. There are three points which I make. First, There are no natural, unalienable, and equal rights, wherewith men are endowed by their Creator; no natural, unalienable, and equal right to life, liberty, and the pursuit of happiness. Second, There is a great diversity of powers, and in virtue thereof the strong man may rule and oppress, enslave and ruin the weak, for his interest and against theirs. Third, There is no natural law of God to forbid the strong to oppress the weak, and enslave and ruin the weak. That is the Idea of Slavery. It has never got a national expression in America; it has never been laid down as a Principle in any act of the American people, nor in any single State, so far as I know. All profess the opposite; but it is involved in the Measures of both State and Nation. This Idea is founded in the selfishness of man; it is atheistic. The idea must lead to a corresponding government; that will be unjust in its substance,--for it will depend not on natural right, but on personal force; not on the Constitution of the Universe, but on the compact of men. It is the abnegation of God in the universe and of conscience in man. Its form will be despotism,--the government of all, by a part, for the sake of a part. It may be a single-headed despotism, or a despotism of many heads; but whether a Cyclops or a Hydra, it is alike "the abomination which maketh desolate." Its ultimate consequence is plain to foresee--poverty to a nation, misery, ruin. * * * * * These two Ideas are now fairly on foot. They are hostile; they are both mutually invasive and destructive. They are in exact opposition to each other, and the nation which embodies these two is not a figure of equilibrium. As both are active forces in the minds of men, and as each idea tends to become a fact--a universal and exclusive fact,--as men with these ideas organize into parties as a means to make their idea into a fact,--it follows that there must not only be strife amongst philosophical men about these antagonistic Principles and Ideas, but a strife of practical men about corresponding Facts and Measures. So the quarrel, if not otherwise ended, will pass from words to what seems more serious; and one will overcome the other. So long as these two Ideas exist in the nation as two political forces, there is no national unity of Idea, of course no unity of action. For there is no centre of gravity common to Freedom and Slavery. They will not compose an equilibrious figure. You may cry "Peace! Peace!" but so long as these two antagonistic Ideas remain, each seeking to organize itself and get exclusive power, there is no peace; there can be none. The question before the nation to-day is, Which shall prevail--the Idea and Fact of Freedom, or the Idea and the Fact of Slavery; Freedom, exclusive and universal, or Slavery, exclusive and universal? The question is not merely, Shall the African be bond or free? but, Shall America be a Democracy or a Despotism? For nothing is so remorseless as an idea, and no logic is so strong as the historical development of a national idea by millions of men. A measure is nothing without its Principle. The Idea which allows Slavery in South Carolina will establish it also in New England. The bondage of a black man in Alexandria imperils every white woman's daughter in Boston. You cannot escape the consequences of a first Principle more than you can "take the leap of Niagara and stop when half-way down." The Principle which recognizes Slavery in the Constitution of the United States would make all America a Despotism, while the Principle which made John Quincy Adams a free man would extirpate Slavery from Louisiana and Texas. It is plain America cannot long hold these two contradictions in the national consciousness. Equilibrium must come.[4] [Footnote 4: See this statement in Mr. Parker's Additional Speeches, Addresses, and Occasional Sermons. Boston, 1855, vol. ii. p. 250, _et seq._] These two ideas are represented by two parties which aim at the ultimate organization of their respective doctrines, the party indicating the special tendency towards Democracy or Despotism. The Party of Freedom is not yet well organized; that of Slavery is in admirable order and discipline. These two parties are continually at war attended with various success. 1. In the individual States of the North, since the Revolution, the Party of Freedom has gained some great victories; it has abolished Personal Slavery in every northern State, and on a deep-laid foundation has built up Democratic Institutions with well proportioned beauty. The Idea of Freedom, so genial to the Anglo-Saxon, so welcome to all of Puritanic birth and breeding, has taken deep root in the consciousness of the great mass of the People at the North. In the severe simplicity of national deduction they will carry it to logical conclusions not yet foreseen by human providence. The free States are progressively democratic. But in all the Northern States, and more especially in its cities,--and here chiefly among the men of exclusive intellectual culture and the votaries of commerce and its riches,--there are exceptional men who embrace the Idea of Slavery and belong to its Party. They know no law higher than the transient interest of their politics or their commerce, their ease or ambition. They may not theoretically hate the People, but they so love their own money, their own ease or pleasure, that practically they oppose what promotes the welfare of mankind, and seek their own personal advancement to the injury of the human race. These are Northern men with Southern "Principles." They have their Journals too well known in Boston to need mention here. 2. In the individual States of the South, the Idea and Party of Slavery has also gained great victories and been uniformly successful; it has extended and strengthened personal slavery, which has now a firmer hold in the minds of the controlling classes of Southern men,--the rich and "educated,"--than in 1776, or ever before. The Southern States are progressively despotic. Still, in all the Southern States there are exceptional men, hostile to slavery,--the intelligent and religious from conviction, others from mere personal interest. These are Southern men with Northern Principles. They are much oppressed at home--kept from political advancement or social respectability, as much as democrats would be at Rome or Naples,--have no journals and little influence. 3. In the Federal Government, the warfare goes on, each party seeking for mastery over the whole United States--the contest is carried on in Congress, in all the local legislatures; newspapers, speeches, even sermons, resound with the din of battle. See what forces contend and with what results. The nation lives by its productive industry, whereof there are these five chief departments:--Hunting and Fishing, the appropriation of the spontaneous live products of the land and sea; Agriculture, the use of the productive forces of the earth's surface; Mining, the appropriation of the metallic products of her bosom; Manufactures, the application of toil and thought to the products of Hunting and Fishing, Mining and Agriculture; Commerce, the exchange of value, distribution of the products of these four departments of industry, directly productive. Hunting and Fishing, Mining, Manufactures, Commerce, are mainly in the hands of Northern men--the South is almost wholly Agricultural. Her wealth consists of land and slaves. In 1850 the fifteen slave States had not fourteen hundred millions of other property. In the South property, with its consequent influence, is in few hands--in the North it is wide spread. Now the few controlling men of the South, the holders of land and slaves, have Unity of pecuniary Interest--the support of Slavery as a local measure,--for it is the source of their material wealth, and also a consequent Unity of political Idea, the support of Slavery as a universal Principle, for it is the source likewise of their political power. Accordingly the South presents against the North an even and well-disciplined front of veteran soldiers, is always hostile to Freedom, and as her "best educated" men devote much time to politics, making it the profession of their whole lives, it is plain they become formidable antagonists. But the North has a great variety of conflicting interests, a great amount of intellectual activity, where education and its consequent habits of reading and thinking are so wide spread, and therefore a great variety of opinion. Accordingly there is not the same Unity of pecuniary Interest and of political Idea, which distinguishes the South. Besides, in the North the ablest and best educated men do not devote their time to the thankless and stormy calling of politics; Virginia cares for nothing but Negroes and Politics, her loins and her brains gender but this twofold product: Massachusetts and New York care for much beside. So the North does not present against the South an even and well-disciplined front of veteran soldiers, but a ragged, discordant line of raw recruits, enlisting for a short time with some special or even personal local interest to serve. What makes the matter yet worse for us, Gentlemen of the Jury, is this: While the great mass of the people at the North, engrossed in direct productive industry, are really hostile to slavery, those absorbed in the large operations of commerce, taken as a whole class, feel little interest in the Idea of Freedom; nay, they are positively opposed to it. Before the African Slave-trade was treated like other kindred forms of piracy, as a capital crime, they had their ships in that felonious traffic; and now their vessels engage in the American Slave-trade and their hand still deals in the bodies of their fellow men. In all the great commercial cities, like Philadelphia, New York and Boston these men prevail, and are the "eminent citizens," overslaughing the press, the pulpit, the bar, and the court, with the Ideas of their lower law, and sweeping along all metropolitan and suburban fashion and respectability in their slimy flood. Hence the great cities of the North, governed by the low maxims of this class, have become the asylum of Northern men with Southern "Principles," and so the strong-hold of Slavery. And hitherto these great cities have controlled the politics of the Northern States, crowding the Apostles of Freedom out from the national board, and helping the party of slavery to triumph in all great battles. Thus aided, for many years the South has always elected her candidate for the Presidency by the vote of the people. But the American Executive is twofold,--part Presidential, part Senatorial. Sometimes these two Executives are concordant, sometimes discordant. The Senatorial Executive has always carried the day against the less permanent Presidential power, except in the solitary case where General Jackson's unconquerable will and matchless popularity enabled him to master the senate itself, who "registered" his decrees, or "expunged" their own censure, just as the iron ruler gave orders. Now by means of the control which the Northern Cities have over the Northern States, and such Commercial Men over those cities, it has come to pass that not only the Presidential, but also the Senatorial Executive, has long been hostile to the Idea of Freedom. Gentlemen of the Jury, the direct consequence is obvious,--the Party of Slavery has long been the conqueror in the field of Federal politics. In the numerous and great conflicts between the two, Freedom has prevailed against Slavery only twice since the close of the Revolutionary War,--in prohibiting involuntary servitude in the North-west Territory in 1787, and in the abolition of the African Slave-trade in 1808. Her last triumph was forty-seven years ago,--nay, even that victory was really achieved twenty years before at the adoption of the constitution. In this warfare we have not gained a battle for freedom since 1788! For a time it seemed doubtful which would triumph, though Slavery gained Kentucky and Tennessee, and Louisiana was purchased as slave soil in 1803. But in 1820 slavery became the obvious and acknowledged master in the Federal Territory, marched victorious over the Mississippi, planted itself in Missouri, and has subsequently taken possession of Mississippi, Alabama and Arkansas, all slave States; has purchased Florida; "reannexed" Texas; conquered Utah, New Mexico and California, all slave soil; and from Freedom and the North has just now reconquered Kansas and Nebraska. Ever since the Missouri Compromise in 1820 Slavery has been really the master, obviously so since the annexation of Texas in 1845. The slave-power appoints all the great national officers, executive, diplomatic, judicial, naval and military,--it controls the legislative departments. Look at this Honorable Court, Gentlemen, and recognize its power! The idea of Slavery must be carried out to its logical consequence, so our masters now meditate two series of Measures, both necessary to the development of Slavery as a Principle. (I.) African Slavery is to be declared a Federal Institution, national and sectional, and so extended into all the Territories of the United States. New soil is to be bought or plundered from Hayti, Spain, Mexico, South America "and the rest of mankind," that slavery may be planted there; that is the purpose of all the Official Fillibustering of the Government, and the Extra-official Fillibustering which it starts, or allows; Quitman "Enterprises," Kinney "Expeditions," Black Warrior and El Dorado "difficulties," all point to this; the "Ostend Conference" is a step in that direction; Slavery is to be restored to the so called "Free States," reëstablished in all the North. That is the design of the fugitive slave bill in 1850, and the kidnapping of northern men consequent thereon for the last five years; of President Pierce's inaugural declarations in behalf of slavery in 1853; of Mr. Toombs's threat in 1854, that "soon the master with his slaves will sit down at the foot of Bunker Hill Monument;" of Mr. Toucey's Bill in 1855, providing that when a kidnapper violates the local laws of any State, he shall be tried by the fugitive slave bill court. Then the African Slave-trade is to be restored by federal enactments, or judicial decisions of the "Supreme Court of the United States." All these steps belong to Measure number One. The Supreme Court is ready to execute the commands of its lord. Soon you will see more "decisions" adverse to humanity. (II.) The next movement is progressively to weaken and ultimately to destroy the Democratic Institutions of the North,--yes, also of the South. This design is indicated and sustained by some of the measures already mentioned as connected with the first purpose. To this point tend the words of President Pierce addressed to the soldiers of 1812 on the 8th of January 1855, in which he speaks of such as "disseminate political heresies," that is, the Idea of Freedom; "revile the government,"--expose its hostility against the unalienable Rights of man; "deride our institutions,"--to wit, the patriarchal institution of Slavery; "sow political dissensions,"--advise men not to vote for corrupt tools of the government; "set at defiance the laws of the land,"--meaning the fugitive slave bill which commands kidnapping. There belong the attempts of the Federal courts to enlarge their jurisdiction at the expense of State Rights; the cry, "Union first and Liberty afterwards;" the shout "No higher law," "Religion nothing to do with Politics." Thence come the attacks made on the freedom of the pulpit, of the press, and all freedom of speech. The Individual State which preserves freedom must be put down,--the individual person who protests against it must be silenced. No man must hold a federal office,--executive, diplomatic, judicial, or "ministerial,"--unless he has so far conquered his "prejudices" in favor of the natural Rights of man that he is ready to enslave a brother with alacrity. All these steps belong to Measure number Two. This latter Measure advances to its execution, realizing the Idea of Slavery, with subtle steps, yet creeps on rapid-moving feet. See how it has gained ground latterly. Obviously the fugitive slave bill struck only at the natural Rights of Colored men--as valuable as those of white men, but the colored are few and the white many,--the experiment must be made on the feebler body. But this despotism cannot enslave a black girl without thereby putting in peril the liberty of every white man. At first our masters only asked of Boston a little piece of chain, but just long enough to shackle the virtuous hands of Ellen Craft, a wife and mother, whom her Georgian "owner" wished to sell as a harlot at New Orleans! A meeting was summoned at Faneuil Hall, and Boston answered, "Yes, here is the chain. Let the woman-hunter capture Ellen Craft, make her a Prostitute at New Orleans. She is a virtuous wife and mother,--but no matter. Slavery is king and commands it. Let the 'owner' have his chain." There is no escaping the consequence of a first Principle. Soon that little chain lengthened itself out, and coiled itself all round the court house, and how greedily your judges stooped to go under! This Anaconda of the Dismal Swamp wound its constricting twists about the neck of all your courts, and the Judges turned black in the face, and when questioned of law, they could not pronounce "Habeas Corpus," "Trial by Jury," nor utter a syllable for the Bible or the Massachusetts Constitution, but only wheeze and gurgle and squeak and gibber out their defences of Slavery! No, Boston could not bewray a woman wandering towards freedom, without chaining the court house and its judges, putting the town in a state of siege,--insolent soldiers striking at the people's neck. Now the attempt is making by this Honorable Court to put the same chain round Faneuil Hall, so that the old Cradle of Liberty shall no more rock to manhood the noble sons of freedom, but only serve as a nest that the spawn of Bondage may hibernate therein. I am on trial because I hate Slavery, because I love freedom for the black man, for the white man, and for all the human Race. I am not arraigned because I have violated the statute on which the indictment is framed--no child could think it--but because I am an advocate of Freedom, because my Word, my Thoughts, my Feelings, my Actions, nay, all my Life, my very Existence itself, are a protest against Slavery. Despotism cannot happily advance unless I am silenced. It is very clear logic which indicts me. Private personal malice, deep, long cherished, rancorous, has doubtless jagged and notched and poisoned too the public sword which smites at my neck. Still it is the public sword of Slavery which is wielded against me. Against ME? Against YOU quite as much--against your children. For as Boston could not venture to kidnap a negro woman, without bringing down that avalanche of consequences connected with the Principle of Slavery,--without chains on her Judges, falsehood in her officers, blood in her courts, and drunken soldiers in her streets, and hypocrisy in her man-hunting ministers,--no more can she put me to silence alone. The thread which is to sew my lips together, will make your mouths but a silent and ugly seam in your faces. Slavery is Plaintiff in this case; Freedom Defendant. Before you as Judges, I plead your own cause--for you as defendant. I will not insult you by the belief or the fear that you can do other than right, in a matter where the law is so plain, and the Justice clear as noonday light. But should you decide as the wicked wish, as the court longs to instruct you, you doom your mouths to silence; you bow your manly faces to the ground, destine your memories to shame, and your children to bondage worse than negro slavery. * * * * * Such, Gentlemen of the Jury, is the state of affairs leading to this Prosecution--such the past, present, and prospective Encroachments of a Power hostile to Democratic Institutions and the unalienable Rights they were designed to protect. Such also are the two Measures now in contemplation,--the Extension of African Bondage, and the Destruction of American Freedom. II. LOOK NEXT AT THE MODE OF OPERATION HITHERTO PURSUED BY THIS ENCROACHING POWER, IN OTHER TIMES AND NATIONS, AND IN OUR OWN, SYSTEMATIC CORRUPTION OF THE JUDICIARY. Here I shall show the process by which that Principle of Slavery becomes a Measure of political ruin to the People. In substance Despotism is always the same, Spanish or Carolinian, but the form varies to suit the ethnologic nature and historical customs of different people. I shall mention two forms--one to illustrate, the other to warn. (I.) The open Assumption of Power by military violence. This method is followed in countries where love of Individual Liberty is not much developed in the consciousness of the people, and where democratic institutions are not fixed facts in their history; where the nation is not accustomed to local self-government, but wonted to a strong central power directed by a single will. This form prevails in Russia, Turkey, and among all the Romanic tribes in Europe, and their descendants in America. Military usurpation, military rule is indigenous in France,--where two Napoleons succeed thereby,--in Italy, in Spain, and most eminently in Spanish America. But no people of the Teutonic family for any length of time ever tolerated a usurping soldier at the head of affairs, or submitted to martial arbitrary rule, or military violence in the chief magistrate. It is against our habit and disposition. Neither Cromwell nor William of Orange could do with the Anglo-Saxon what it would have been impossible not to do with Spaniards or Italians. Even warlike Swiss--Teutonic tribes--will have a government with due process of law, not by the abrupt violence of the soldier. Washington could not have established a military monarchy in America had he been so wickedly disposed. Even William the Conqueror must rule the Saxons by Saxon law. (II.) The corruption of the acknowledged safeguards of public security. This is attempted in nations who have a well-known love of individual liberty, and institutional defences thereof, the habit of Local Self-government by Democratic Law-making and Law-administering. For example, this experiment has been repeatedly made in England. The monarch seeking to destroy the liberty of the people, accomplishes his violent measure by the forms of peaceful law, by getting the judicial class of men on the side of despotism. Then all the wickedness can be done in the name, with the forms, and by "due process" of law, by regular officers thereof--done solemnly with the assistance of slow and public deliberation. Gentlemen of the Jury, this is a matter of such importance to the People of America just now, that I must beg you to bear with me while I explain this subtle operation. I will select examples from the history of England which are easy to understand, because her blood is kindred to our own, and the institutions of the two countries are related as parent and child. And besides, her past history affords alike warning and guidance in our present peril. * * * * * (I.) The first step in this process of political iniquity is, to appoint men for judges and other officers of the court, who know no law higher than the selfish will of the hand that feeds them, mere creatures of the rest [Transcriber's Note: for 'rest' read 'government'; see Errata]. I will select instances of this from the reign of the Stuart kings and one of their successors, from a period full of melancholy warning to America. I will begin with James I. (1603-1625), the first King of New England. At his very accession he had high notions of his royal Prerogative, and maintained that all the privileges of the House of Commons were derived from his royal grant. "I am your King," said he, "I am placed to govern you, and I shall [must] answer for your errors." It was quite enough to answer for his own,--poor man. "Let me make the Judges," said he, "and I care not who makes the laws." Accordingly for judicial officers he appointed such men as would execute his unlawful schemes for the destruction of public liberty. To such considerations was Francis Bacon mainly indebted for his elevation from one legal rank to another, until he reached the seat of the Lord Chancellor. A man whom Villers declared, "of excellent parts, but withal of a base and ungrateful temper, and an arrant knave, yet a fit instrument for the purposes of the government." He did not receive his appointment for that vast, hard-working genius which makes his name the ornament of many an age, but only for his sycophantic devotion to the royal will. Sir Edward Coke was promoted rapidly enough, whilst wholly subservient to the despotic court, but afterwards, though a miracle of legal knowledge, not equalled yet perhaps, he must not be appointed Lord Chancellor on account of "his occasional fits of independence." Chief Justice Ley was one of the right stamp, but it was thought "his subserviency might prove more valuable by retaining him to preside over the Court of King's Bench." "For in making the highest judicial appointments the only question was, what would suit the arbitrary schemes of governing the country."[5] Hobart had resisted some illegal monopolies of the all-powerful Buckingham, and he was "unfit for promotion." [Footnote 5: 2 Campbell, 372, 374.] James thought the Prerogative would be strengthened by the appointment of clergymen of the national church, perhaps the only class of men not then getting fired with love of liberty,--and made Williams, Bishop of Lincoln, Lord Keeper, a "man of rash and insolent, though servile temper, and of selfish, temporizing, and trimming political conduct," who at that time had never acted as "a judge except at the Waldegrave Petty Sessions in making an order of bastardy or allowing a rate for the Parish poor," and was "as ignorant of the questions coming before him as the door-keepers of his court." But he was subservient, and had pleased the King by preaching the courtly doctrine that "subjects hold their liberties and their property at the will of the Sovereign whom they are bound in every extremity passively to obey."[6] Men like Fleming and other creatures of the throne, sanctioning the King's abundant claim to absolute power, were sure of judicial distinction; while it was only the force of public opinion which gave the humblest place of honor to such able and well-studied lawyers as would respect the constitutional Rights of the People and the just construction of the laws, and at all hazards maintain their judicial independence. Ecclesiastics who taught that the King "is above the laws by his absolute power," and "may quash any law passed by Parliament," were sure of rapid preferment. Thus Bancroft was promoted; thus Abbot was pushed aside; and for his mean, tyrannical and subservient disposition Rev. William Laud was continually promoted in expectation of the services which, as Archbishop, he subsequently performed in the overthrow of the Liberty of the People. But time would fail me to read over the long dark list of men whose personal shame secured them "official glory." [Footnote 6: 2 Campbell, 368, 374; 3 Howell State Trials, 824.] In his address to the Judges in the Star-Chamber in 1616 James gave them this charge, "If there falls out a question which concerns any Prerogative or mysterie of State, _deale not with it till you consult with the King_ or his Council, or both; for they are Transcendent Matters, and must not be slibberly carried with over rash wilfullnesse." "And this I commend unto your special care, as some of you of late have done very much, to _blunt the edge and vaine popular humor of some lawyers at the Barre_, that think they are not eloquent and bold-spirited enough, except they _meddle with the King's Prerogative_." "_That which concerns the mysterie of the King's Power is not lawful to be disputed._"[7] Gentlemen, that was worthy of some judicial charges which you and I have heard. [Footnote 7: Speache in the Starre-Chamber, London, 1616.] * * * * * Charles I. (1625-1659,) pursued the same course of tyranny by the same steps. Coventry could be implicitly relied on to do as commanded, and was made Lord Keeper in 1625. When the question of Ship-money was to be brought forward in 1636, Chief Justice Heath was thought not fit to be trusted with wielding the instrument of tyranny, and accordingly removed; "and Finch, well known to be ready to go all lengths, was appointed in his place." For he had steadfastly maintained that the King was absolute, and could dispense with law and parliament,--a fit person to be a Chief Justice, or a Lord Chancellor, in a tyrant's court, ready to enact iniquity into law. His compliance with the King's desire to violate the first principle of Magna Charta, "endeared him to the Court, and secured him further preferment as soon as any opportunity should occur." So he was soon made Lord Chancellor and raised to the peerage. Littleton had once been on the popular side, but deserted and went over to the Court--he was sure of preferment; and as he became more and more ready to destroy the liberties of the People, he was made Chief Justice, and finally Lord Chancellor in 1641. Lane was a "steady friend of the prerogative," and so was made Attorney-General to the Prince of Wales, and thence gradually elevated to the highest station. Other Judicial appointments were continually made in the same spirit. Thus when Sir Randolf Crewe was Chief Justice of the King's Bench, the government questioned him to ascertain if he were "sound," and were shocked to hear him declare that the King had no right to levy taxes without consent of Parliament, or imprison his subjects without due process of law. He was "immediately dismissed from his office," (1626,) and Sir Nicolas Hyde appointed in his place. By such means the courts were filled with tools of the King or his favorites, and the pit digged for the liberties of the People, into which at last there fell--the head of the King! * * * * * Charles II. and James II., (1655-1686,) did not mend the evil, but appointed for judges "such a pack as had never before sat in Westminster Hall." Shaftesbury and Guildford had the highest judicial honors. Lord Chancellor Finch, mentioned already, had been accused by the Commons of High Treason and other misdemeanors, but escaped to the continent, and returned after the Restoration. He was appointed one of the Judges to try the Regicides. Thus he "who had been accused of high treason twenty years before by a full parliament, and who by flying from their justice saved his life, was appointed to judge some of those who should have been his Judges."[8] He declared in Parliament that Milton, for services rendered to the cause of liberty while Latin Secretary to Cromwell, "deserved hanging."[9] [Footnote 8: Ludlow, quoted in 2 Campbell, 470.] [Footnote 9: 4 Parl. Hist. 162.] In these reigns such men as Saunders, Wright, and Scroggs, were made Judges, men of the vilest character, with the meanest appetites, licentious, brutal, greedy of power and money, idiotic in the moral sense, appointed solely that they might serve as tools for the oppression of the People. Among these infamous men was George Jeffreys, of whom Lord Campbell says,--"He has been so much abused that I began my critical examination of his history in the hope and belief that I should find that his misdeeds had been exaggerated, and that I might be able to rescue his memory from some portion of the obloquy under which it labors; but I am sorry to say that in my matured opinion his cruelty and his political profligacy have not been sufficiently exposed or reprobated; and that he was not redeemed from his vices by one single solid virtue."[10] But in consequence of his having such a character, though not well-grounded in law, he was made a Judge, a Peer, and a Lord Chancellor! Wright, nearly as infamous, miraculously stupid and ignorant, "a detected swindler, knighted and clothed in ermine, took his place among the twelve judges of England."[11] He also was made Chief Justice successively of the Common Pleas and the King's Bench! Lord Campbell, himself a judge, at the end of his history of the reign of Charles and James, complains of "the irksome task of relating the actions of so many men devoid of political principle and ready to suggest or to support any measures, however arbitrary or mischievous, for the purpose of procuring their own advancement."[12] It was the practice of the Stuarts "to dismiss judges without seeking any other pretence, who showed any disposition to thwart government in political prosecutions."[13] Nor was this dismissal confined to cases where the judge would obey the law in merely Political trials. In 1686 four of the judges denied that the king had power to dispense with the laws of the land and change the form of religion: the next morning they were all driven from their posts, and four others, more compliant, were appointed and the judicial "opinion was unanimous." Hereupon Roger Coke says well,--"the king ... will make the judges in Westminster Hall to murder the common law, as well as the king and his brother desired to murder the parliament by itself; and to this end the king, when he would make any judges would make a bargain with them, that they should declare the king's power of dispensing with the penal laws and tests made against recusants, out of parliament."[14] [Footnote 10: 3 Campbell, 394.] [Footnote 11: 2 Campbell Chief Justices, 86.] [Footnote 12: 3 Campbell, 473.] [Footnote 13: 3 Hallam, 142.] [Footnote 14: 8 St. Tr. 195, note.] * * * * * Here, Gentlemen of the Jury, I must mention three obscure judges who received their appointments under Stuart kings. Before long I shall speak of their law and its application, and now only introduce them to you as a measure preliminary to a more intimate acquaintance hereafter. 1. The first is Sir William Jones, by far the least ignoble of the three. He was descended from one of the Barons who wrung the Great Charter from the hands of King John in 1618 [Transcriber's Note: for '1618' read '1215'; see Errata], and in 1628 dwelt in the same house which sheltered the more venerable head of his Welsh ancestor. In 1628 he was made judge by Charles I. He broke down the laws of the realm to enable the king to make forced loans on his subjects, and by his special mandate (Lettre de Cachet) to imprison whom he would, as long as it pleased him, and without showing any reason for the commitment or the detention! Yes, he supported the king in his attempt to shut up members of parliament for words spoken in debate in the house of commons itself; to levy duties on imports, and a tax of ship-money on the land. He was summoned before parliament for his offences against public justice, and finally deprived of office, though ungratefully, by the king himself.[15] [Footnote 15: Account of him in Preface to his Reports, (1675); 3 St. Tr. 162, 293, 844, 1181; 2 Parl. Hist. 869; 1 Rushworth, 661, _et al._; Whitlocke, 14, _et al._] 2. Thomas Twysden was counsel for George Coney in 1655, a London merchant who refused to pay an illegal tax levied on him by Cromwell--who followed in the tyrannical footsteps of the king he slew. Twysden was thrown into the Tower for defending his client--as Mr. Sloane, at Sandusky, has just been punished by the honorable court of the United States for a similar offence,--but after a few days made a confession of his "error," defending the just laws of the land, promised to offend no more, and was set at liberty, ignominiously leaving his client to defend himself and be defeated. This Twysden was made judge by Charles II. The reporters recording his decisions put down "_Twysden in furore_," thinly veiling the judicial wrath in modest Latin. He was specially cruel against Quakers and other dissenters, treating George Fox, Margarett Fell, and John Bunyan with brutal violence.[16] [Footnote 16: 6 St. Tr. 634; 1 Campbell Justices, 442.] 3. Sir John Kelyng is another obscure judge of those times. In the civil war he was a violent cavalier, and "however fit he might be to _charge_ the Roundheads under Prince Rupert, he was very unfit to _charge_ a jury in Westminster Hall." In 1660 he took part in the trial of the Regicides and led in the prosecution of Colonel Hacker, who in 1649 had charge of the execution of Charles I. In 1662 he took part in the prosecution of Sir Henry Vane, and by his cruel subtlety in constructing law, that former governor of Massachusetts,--one of the most illustrious minds of England, innocent of every crime, was convicted of high treason and put to death.[17] For this service, in 1663 Kelyng was made a judge; and then, by loyal zeal and judicial subserviency, he made up "for his want of learning and sound sense." But he was so incompetent that even the court of Charles II. hesitated to make him more than a puny judge. But he had been a "valiant cavalier," and had done good service already in making way with such as the king hated, and so after the death of Sir Nicolas Hyde, he was made Lord Chief Justice in his place. "In this office," says Judge Campbell, he "exceeded public expectation by the violent, fantastical, and ludicrous manner in which he conducted himself."[18] But I will not now anticipate what I have to say of him in a subsequent part of this defence. [Footnote 17: 6 St. Tr. 161.] [Footnote 18: 1 Campbell Justices, 401.] Gentlemen of the Jury, we shall meet these three together again before long, and I shall also speak of them "singly or in pairs." In the mean time I will mention one similar appointment in the reign of George the III.--the last king of New England. * * * * * In 1770 Sergeant Glynn, in Parliament, moved for an inquiry into the administration of criminal justice. Edmund Thurlow, a rough venal man, then recently appointed solicitor-general, proposed that a severe censure should be passed on him for the motion. Thurlow wanted the trial by jury abolished in all cases of libel, so that the liberty of the people should be in the exclusive care of government attorneys and judges appointed by the crown. Hear him speak on the 6th of December, 1770. "In my opinion no man should be allowed with impunity to make a wanton attack upon such venerable characters as the judges of the land. We award costs and damages to the aggrieved party in the most trifling actions. By what analogy, then, can we refuse the same justice in the most important cases, to the most important personages? If we allow every pitiful patriot thus to insult us with ridiculous accusations, without making him pay forfeit for his temerity, we shall be eternally pestered with the humming and buzzing of these stingless wasps. Though they cannot wound or poison, they will tease and vex. They will divert our attention from the important affairs of State to their own mean antipathies, and passions, and prejudices. Did they not count upon the spirit of the times and imagine that the same latitude which is taken by the libellers is here allowable, they would not have dared to offer so gross an outrage. I hope we shall now handle them so roughly as to make this the last of such audacious attempts. They are already ridiculous and contemptible. To crown their disgrace, let us inflict some exemplary punishment. Else none of us is safe. Virtue and honor, you see from this instance, are no safeguard from their attacks." "The nature, the direct effect, and the remote consequences of a State libel, are so complicated and involved with various considerations of great pith and moment, that few juries can be adequate judges. So many circumstances are at once to be kept in view, so many ponderous interests are to be weighed, so many comparisons to be made, and so many judgments formed, that the mind of an ordinary man is distracted and confounded, and rendered incapable of coming to any regular conclusion. None but a judge, a man that has from his infancy been accustomed to decide intricate cases, is equal to such a difficult task. If we even suppose the jury sufficiently enlightened to unravel those knotty points, yet there remains an insuperable objection. In State libels, their passions are frequently so much engaged, that they may be justly considered as parties concerned against the crown." "In order, therefore, to preserve the balance of our constitution, _let us leave to the judges_, as the most indifferent persons, _the right of determining the malice or innocence of the intention_." "It is not that I think the intention a matter of fact; no, in the sense put upon it by the judges, it is a matter of law." "Much dust has been raised about civil and criminal actions. But to what purpose? Is not reparation to be made to the public for any injury which it may have sustained, as much as to an individual? Is the welfare of the nation in general, of less consequence than that of a single person? Where then is the propriety of making such a bustle about the malice or innocence of the intention? The injury done is the only proper measure of the punishment to be inflicted, as well as of the damage to be assessed. Since you cannot plead the intention as a mitigation in the latter case, neither can you in the former."[19] [Footnote 19: 16 Parl. Hist. 1291, 1292, 1293.] What followed? On the 23d of July, 1771, he was made Attorney-General. His subsequent history did not disappoint the prophecy uttered above by his former conduct and his notorious character. "In truth his success was certain, with the respectable share he possessed of real talents and of valuable requirements--strongly marked features, piercing eyes, bushy eyebrows, and a sonorous voice, all worked to the best effect by an immeasurable share of self-confidence--he could not fail."[20] He hated America with the intense malignity of a low but strong and despotic nature, and "took a most zealous part and uttered very violent language against the colonists. He scorned the very notion of concession or conciliation; he considered 'sedition' and 'treason,' (like _tobacco_ and _potatoes_,) the peculiar plants of the American soil. The natives of these regions he thought were born to be taxed."[21] He favored the Stamp Act, the Coercion Bill,--quartering soldiers upon us, sending Americans beyond seas for trial,--the Boston Port Bill, and all the measures against the colonies. "To say that we have a right to tax America and never exercise that right, is ridiculous, and a man must abuse his understanding very much not to allow of that right;" "the right of taxing was never in the least given up to the Americans."[22] On another occasion he said, that "as attorney-general he had a right to set aside every charter in America."[23] What followed? Notwithstanding his youthful profligacy, the open profanity of his public and private speech, and his living in public and notorious contempt of matrimony,--he was made Lord Chancellor and elevated to the peerage in 1778! Him also we shall meet again. [Footnote 20: 5 Campbell, 398.] [Footnote 21: 5 Campbell, 410.] [Footnote 22: 17 Parl. Hist. 1313.] [Footnote 23: 18 St. Tr. 999.] Gentlemen of the Jury, I might as well try to bale all the salt water out of the sea as to mention every glaring and notorious instance where an oppressive government has appointed some discarder of all Higher Law for its servant in crushing the People. Come therefore to the next point. * * * * * (II.) The next step is by means of _such Judges to punish and destroy or silence men who oppose the wickedness of the party in power, and the encroachments of despotism_. Let me describe the general mode of procedure, and then illustrate it by special examples. 1. In the Privy Council, or elsewhere, it is resolved to punish the obnoxious men,--and the business is intrusted to the law-officers of the crown, appointed for such functions. 2. They consult and agree to pervert and twist the law--statute or common--for that purpose. By this means they gratify their master, and prepare future advancement for themselves. 3. The precedent thus established becomes the basis for new operations in the future, and may be twisted and perverted to serve other cases as they occur. Now, Gentlemen, look at some examples taken from British history, in times of the same Kings mentioned before. 1. In 1610 two Puritans for refusing the _ex officio_ oath, were clapped in Jail by the commissioners. They were brought on _habeas corpus_ before a court, and Mr. Fuller, their counsel, a learned lawyer, insisted that they were imprisoned without due process of law. For this "contempt of court" he was thrown into jail by Archbishop Bancroft, whence he was rescued only by death.[24] [Footnote 24: Peirce's Vindication, (1717,) 174.] 2. In 1613 there were many murmurs among the People of England at the tyranny of James. Fine and imprisonment did not quell the disturbance; so a more dreadful example was thought needful. The officials of Government broke into the study of Rev. Edmund Peacham, a Protestant minister, sixty or seventy years old. In an uncovered cask they found a manuscript sermon, never preached, nor designed for the pulpit or the press, never shown to any one. It contained some passages which might excite men to resist tyranny. He was arrested, and thrown into Jail, all his papers seized. The Government resolved to prosecute him for high treason. Francis Bacon, the powerful and corrupt Attorney-General, managed the prosecution. Before trial was ventured upon, he procured an extrajudicial opinion of the Judges appointed for such services,--irregularly given, out of court, that they would declare such an act high treason. But a manuscript sermon, neither preached nor designed for the public, was hardly evidence enough of treason even for such Judges--so purchased, for such an Attorney--so greedy of preferment, with such a Cabinet and such a King. For all those, like the Pharisees of old, "feared the People." So their victim was tortured on the rack, and twelve leading questions prepared by the Government officials, were put to him there. I quote Secretary Winwood's record--still extant in his own handwriting--"He was this day examined before torture, in torture, between torture, and after torture; notwithstanding nothing could be drawn from him, he still persisting in his obstinate and insensible denials and former answers." Bacon was present at the torture, which took place in the Tower, Jan. 19, 1614, O.S. (30th Jan. 1615, N.S.). In August he was tried for high treason--"compassing and imagining the King's death"--before a packed jury; against law, and without legal evidence. He was of course found guilty under the ruling of the Court! But public opinion, even then making tyrants "tremble in their capitals," was so indignant at the outrage that the execution was not ventured on, and he was left to languish in Jail, till on the 27th of March, 1616, a King more merciful took the old minister where the wicked cease from troubling.[25] [Footnote 25: 2 St. Tr. 869; 16 Montagu's Bacon, clxvi.; 2 Campbell, 291.] In this case, Gentlemen of the Jury, you will notice three violations of the law. (1.) The opinion of the Judges before the trial was extrajudicial and illegal. (2.) The application of torture was contrary to law. (3.) The statute of Treason was wrested to apply to this case--and a crime was constructed by the servants of the court. It is curious to read the opinion of James himself. "The British Solomon" thus wrote:-- "So the only thing the Judges can doubt of is of the delinquent's intention, on his bare denial to clear him [himself], since nature teaches every man to defend his life as he may; and whether in case there was a doubt herein, the Judges should not rather incline to that side [namely, the side of the Government,] wherein all probability lies: but if Judges will needs trust rather the bare negative of an _infamous delinquent_--then all the probabilities, or rather infallible consequences upon the other part, caring more for the safety of _such a monster_ than the preservation of a crown in all ages following, whereupon depend the lives of many millions, happy then are all _desperate and seditious knaves_, but the fortune of this crown is more than miserable. Which God forefend."[26] [Footnote 26: 2 St. Tr. 879.] 3. In 1633, Laud, a tyrannical, ambitious man, and a servile creature of the King, mentioned before, was made Archbishop of Canterbury, continuing Bishop of London at the same time. Charles I. was strongly inclined to Romanism, Laud also leaned that way, aiming to come as near as possible to the Papal and not be shut out of the English Church. He made some new regulations in regard to the Communion Table and the Lord's Supper. John Williams, before mentioned, Dean of Westminster and Bishop of Lincoln, who had been Lord Keeper under King James, wrote a book against those innovations; besides, in his episcopal court he had once spoken of the Puritans as "good subjects," and of his knowing "that the King did not wish them to be harshly dealt with." In 1637 Laud directed that he should be prosecuted in the Star-Chamber for "publishing false news and tales to the scandal of his Majesty's government;" and "for revealing counsels of State contrary to his oath of a Privy Counsellor." He was sentenced to pay a fine of £10,000,--equal to $50,000, or thrice the sum in these times; to be suspended from all offices, and kept a close prisoner in the Tower during the King's pleasure--whence the Revolution set him at liberty. Besides he wrote private letters to Mr. Osbalderston, and called Laud "the little great man," for this he, in 1639, was fined £5,000 to the King, and £3,000 to the Archbishop. Osbalderston in his letters had spoken of the "great Leviathan" and the "little Urchin," and was fined £5,000, to the King, and the same to the Archbishop, and sentenced also to stand in the pillory with his ears nailed to it![27] [Footnote 27: 3 St. Tr. 769; 2 Campbell, 400.] 4. In 1629 Richard Chambers, a merchant of London, complained to the Privy Council of some illegal and unjust treatment, and declared "that the merchants in no part of the world are so screwed and wrung as in England; that in Turkey they have more encouragement." Laud, who hated freedom of speech and liberal comments on the government as much as "eminent citizens" nowadays, is said to have told the king, "If your majesty had many such Chambers, you would soon have no Chamber left to rest in." The merchant was tried before the "commissioners" at the Star-Chamber, and fined £2,000, and condemned to make a "submission for his great offence,"[28] which the stout Puritan refused to do, and was kept in prison till the Court of King's Bench, faithful to the law, on Habeas Corpus, admitted him to bail: for which they were reprimanded. Laud and all the ecclesiastical members of the "commission" wished his fine £3,000. [Footnote 28: 3 St. Tr. 373; Franklyn, 361; 2 Hallam (Paris, 1841), 6 _ac etiam_ 13; 2 Mrs. Macaulay, 16, 45, 65.] 5. In his place in Parliament in 1629, Sir John Eliot, one of the noblest men in England's noblest age, declared that "the Council and Judges had all conspired to trample underfoot the liberties of the subject." Gentlemen, the fact was as notorious as the advance of the Slave Power now is in America. But a few days after the king (Charles I.) had dismissed his refractory Parliament, Eliot, with Hollis, Long, Selden, Strode, and Valentine, most eminent members of the commons, and zealous for liberty and law, was seized by the king's command and thrown into prison. The Habeas Corpus was demanded--it was all in vain, for Laud and Strafford were at the head of affairs, and the priests and pliant Judges in Westminster Hall--Jones was one of them--clove down the law of the land just as their subcatenated successors did in Boston in 1851. The court decreed that they should be imprisoned during the king's pleasure, and not released until making submission and giving security for good behavior. Eliot was fined £2,000, Hollis and Valentine in smaller sums. Eliot--the brave man--refused submission, and died in the Tower. Thus was the attack made on all freedom of speech in Parliament![29] [Footnote 29: 3 St. Tr. 293; 1 Rushworth; 2 Hallam, 2; 2 Parl. Hist. 488, 504; Foster's Eliot, 100; 2 Mrs. Macaulay, ch. i. ii.] 6. In 1630, the very year of the first settlement of Boston, on the 4th of June, Rev. Dr. Alexander Leighton was brought before the Court of High Commission, in the Star-Chamber, to be tried for a seditious libel. He had published "An Appeal to the Parliament, or a Plea against Prelacy," a work still well known, remonstrating against certain notorious grievances in church and State, "to the end the Parliament might take them into consideration and give such redress as might be for the honor of the king, the quiet of the people, and the peace of the church," the court of commissions accounted it "a most odious and heinous offence, deserving the most serious punishment the court could inflict, for framing a book so full of such pestilent, devilish, and dangerous assertions." The two Chief Justices declared if the case had been brought to their courts, they would have proceeded against him for Treason, and it was only "his majesty's exceeding great mercy and goodness" which selected the milder tribunal. His sentence was a fine of £10,000, to be set in the pillory, whipped, have one ear cut off; one side of his nose slit, one cheek branded with S.S., Sower of Sedition, and then at some convenient time be whipped again, branded, and mutilated on the other side, and confined in the Fleet during life! Before the punishment could be inflicted he escaped out of prison, but was recaptured and the odious sentence fully executed. Those who "obstructed" the officer in the execution of that "process" were fined £500 a piece.[30] Gentlemen of the Jury, which do you think would most have astonished the Founders of Massachusetts, then drawing near to Boston, that trial on the 4th of June, 1630, or this trial, two hundred and twenty-five years later? At the court of Charles it was a great honor to mutilate the body of a Puritan minister. [Footnote 30: 3 St. Tr. 383; Laud's Diary, 4th November; 2 Hallam, 28.] But not only did such judges thus punish the most noble men who wrote on political matters, there was no freedom of speech allowed--so logical is despotism! 7. William Prynn, a zealous Puritan and a very learned lawyer, wrote a folio against theatres called "a Scourge for Stage-Players," dull, learned, unreadable and uncommon thick. He was brought to the Star-Chamber in 1632-3, and Chief Justice Richardson--who had even then "but an indifferent reputation for honesty and veracity"--gave this sentence: "Mr. Prynn, I do declare you to be a Schism-Maker in the Church, a Sedition-Sower in the Commonwealth, a wolf in sheep's clothing; in a word 'omnium malorum nequissimus'--[the wickedest of all scoundrels]. I shall fine him £10,000, which is more than he is worth, yet less than he deserveth; I will not set him at liberty, no more than a plagued man or a mad dog, who though he cannot bite, yet will he foam; he is so far from being a sociable soul that he is not a rational soul; he is fit to live in dens with such beasts of prey as wolves and tygers like himself; therefore I do condemn him to perpetual Imprisonment, as those monsters that are no longer fit to live among men nor to see light." "I would have him branded in the forehead, slit in the nose, and his ears cropped too." The sentence was executed the 7th and 10th of May, 1633.[31] But nothing intimidated, the sturdy man committed other offences of like nature, "obstructing" other "officers," and was punished again, and banished. But on the summoning of Parliament returned to England, and became powerful in that Revolution which crushed the tyrants of the time. [Footnote 31: 3 St. Tr. 561; 2 Hallam, 28, and his authorities. See also 2 Echard, 109, _et seq._, 124, _et seq._, 202, 368, 510; the remarks of Hume, Hist. ch. lii., remind me of the tone of the fugitive slave bill Journals of Boston in 1850-54.] 8. In 1685, James II. was in reality a Catholic. He wished to restore Romanism to England and abolish the work of the Reformation, the better to establish the despotism which all of his family had sought to plant. He was determined to punish such as spoke against the Papal Church, though no law prohibited such speaking. Judge Jeffreys, a member of the cabinet and favorite of the king, was at that time chief justice--abundantly fit for the work demanded of him. The pious and venerable Richard Baxter was selected for the victim. Let Mr. Macaulay tell the story. "In a Commentary on the New Testament, he had complained, with some bitterness, of the persecution which the Dissenters suffered. That men, who, for not using the Prayerbook, had been driven from their homes, stripped of their property, and locked up in dungeons, should dare to utter a murmur, was then thought a high crime against the State and Church. Roger Lestrange, the champion of the government, and the oracle of the clergy, sounded the note of war in the Observator. An information was filed. Baxter begged that he might be allowed some time to prepare for his defence. It was on the day on which Oates was pilloried in Palace Yard that the illustrious chief of the Puritans, oppressed by age and infirmities, came to Westminster Hall to make this request. Jeffreys burst into a storm of rage. 'Not a minute,' he cried, 'to save his life. I can deal with saints as well as with sinners. There stands Oates on one side of the pillory; and if Baxter stood on the other, the two greatest rogues in the kingdom would stand together.'" "When the trial came on at Guildhall, a crowd of those who loved and honored Baxter, filled the court. At his side stood Doctor William Bates, one of the most eminent Non-conformist divines. Two Whig barristers of great note, Pollexfen and Wallop, appeared for the defendant." "Pollexfen had scarce begun his address to the jury, when the chief justice broke forth: 'Pollexfen, I know you well. I will set a mark on you. You are the patron of the faction. This is an old rogue, a schismatical knave, a hypocritical villain. He hates the Liturgy. He would have nothing but longwinded cant without book;' and then his lordship turned up his eyes, clasped his hands, and began to sing through his nose in imitation of what he supposed to be Baxter's style of praying, 'Lord, we are thy people, thy peculiar people, thy dear people.' Pollexfen gently reminded the court that his late majesty had thought Baxter deserving of a bishopric. 'And what ailed the old blockhead then,' cried Jeffreys, 'that he did not take it?' His fury now rose almost to madness. He called Baxter a dog, and swore that it would be no more than justice to whip such a villain through the whole city." "Wallop interposed, but fared no better than his leader. 'You are in all these dirty causes, Mr. Wallop,' said the judge. 'Gentlemen of the long robe ought to be ashamed to assist such factious knaves.' The advocate made another attempt to obtain a hearing, but to no purpose. 'If you do not know your duty,' said Jeffreys, 'I will teach it you.' "Wallop sat down, and Baxter himself attempted to put in a word; but the chief justice drowned all expostulation in a torrent of ribaldry and invective, mingled with scraps of Hudibras. 'My lord,' said the old man, 'I have been much blamed by Dissenters for speaking respectfully of bishops.' "'Baxter for bishops!' cried the judge; 'that's a merry conceit indeed. I know what you mean by bishops--rascals like yourself, Kidderminster bishops, factious, snivelling Presbyterians!' "Again Baxter essayed to speak, and again Jeffreys bellowed, 'Richard, Richard, dost thou think we will let thee poison the court? Richard, thou art an old knave. Thou hast written books enough to load a cart, and every book as full of sedition as an egg is full of meat. By the grace of God, I'll look after thee. I see a great many of your brotherhood waiting to know what will befall their mighty Don. And there,' he continued, fixing his savage eye on Bates, 'there is a doctor of the party at your elbow. But, by the grace of God Almighty, I will crush you all!' "Baxter held his peace. But one of the junior counsel for the defence made a last effort, and undertook to show that the words of which complaint was made, would not bear the construction put on them by the information. With this view he began to read the context. In a moment he was roared down. 'You sha'n't turn the court into a conventicle!' The noise of weeping was heard from some of those who surrounded Baxter. 'Snivelling calves!' said the judge."[32] [Footnote 32: 1 Macaulay, (Harper's Ed.) 456-8.] He was sentenced to pay a fine of 500 marks, to lie in prison till he paid it, and be bound to good behavior for seven years. Jeffreys, it is said, wished him also to be whipped at the tail of a cart.[33] But the King remitted his fine. [Footnote 33: 1 Macaulay, 456; 11 St. Tr. 493.] Throughout the reign of James II. the courts of law became more and more contemptible in the eyes of the people. "All the three common law courts were filled by incompetent and corrupt Judges."[34] But their power to do evil never diminished. [Footnote 34: 2 Campbell's Justices, 87.] 9. James II. wished to restore the Catholic form of religion, rightly looking on Protestantism as hostile to his intended tyranny; so he claimed a right to dispense with the laws relating thereto, put a Jesuit into his Privy Council, expelled Protestants from their offices, and filled the vacancy thus illegally made with Papists; he appointed Catholic bishops.[35] In 1688 he published a proclamation. It was the second of the kind,--dispensing with all the laws of the realm against Catholicism; and ordered it to be read on two specified Sundays during the hours of service in all places of public worship. This measure seemed to be a special insult to the Protestants. The declaration of indulgence was against their conscience, and in violation of the undisputed laws of the land, but Chief Justice Wright declared from the bench his opinion that it was "legal and obligatory," and on the day appointed for reading the decree attended church "to give weight to the solemnity," and as it was not read--for the clerk "had forgot to bring a copy,"--he "indecently in the hearing of the congregation abused the priest, as disloyal, seditious, and irreligious." [Footnote 35: See 2 Brewster's Newton, 108.] But the clergy thought differently from the Chief Justice--Episcopalians and Dissenters agreeing on this point. Seven bishops petitioned the King that they might not be obliged to violate their conscience, the articles of their religion, and the laws of the realm, by reading the declaration. They presented their petition in person to the King, who treated it and them with insolence and wrath. "The king, says Kennet, was not contented to have this declaration published in the usual manner, but he was resolved to have it solemnly read in all churches as the political gospel of his reign. The bishops and clergy were, of all others the most averse to the subject-matter of the declaration, as being most sensible of the ill design and ill effects of it; and therefore the court seemed the more willing to mortify these their enemies, and make them become accessory to their own ruin; and even to eat their own dung, as father Petre proudly threatened, and therefore this order of council was made and published."[36] [Footnote 36: 12 St. Tr. 239.] The petition was printed and published with great rapidity, the bishops were seized, thrown into the Tower, and prosecuted in the court for a "false, feigned, malicious, pernicious, and seditious" libel. Judge Allybone thus addressed the Jury. "And I think, in the first place, that _no man can_ take upon him to _write against the actual exercise of the government, unless he have leave from the government_, but he makes a libel, be what he writes true or false; for if once we come to impeach the government by way of argument, it is the argument that makes it the government, or not the government. So that I lay down that, in the first place, _the government ought not to be impeached by argument_, nor the exercise of the government shaken by argument; because I can manage a proposition, in itself doubtful, with a better pen than another man; this, say I, is a libel. "Then I lay down this for my next position, that _no private man can take upon him to write concerning the government at all_; for _what has any private man to do with the government_, if his interest be not stirred or shaken? It is the business of the government to manage matters relating to the government; it _is the business of subjects to mind only their own properties and interests_. If my interest is not shaken, _what have I to do with matters of government_? They are not within my sphere. If the government does come to shake my particular interest, the law is open for me, and I may redress myself by law; and when I intrude myself into other men's business that does not concern my particular interest, I am a libeller. "These I have laid down for plain propositions; now, then, let us consider further, whether, if I will take upon me to contradict the government, any specious pretence that I shall put upon it, shall dress it up in another form and give it a better denomination? And truly I think it is the worse, because it comes in a better dress; for by that rule, every man that can put on a good vizard, may be as mischievous as he will, to the government at the bottom, so that, whether it be in the form of a supplication, or an address, or a petition, if it be what it ought not to be, let us call it by its true name, and give it its right denomination--it is a libel." "The government here has published such a declaration as this that has been read, relating to matters of government; and _shall_, or ought _anybody_ to come and _impeach that as illegal, which the government has done_? Truly, in my opinion, I do not think he should, or ought; for by this rule may every act of the government be shaken, when there is not a parliament _de facto_ sitting. "When the house of lords and commons are in being, it is a proper way of applying to the king; there is all the openness in the world for those that are members of parliament, to make what addresses they please to the government, for the rectifying, altering, regulating, and making of what law they please; but if every private man shall come and interpose his advice, I think there can never be an end of advising the government. "_We are not to measure things from any truth they have in themselves, but from that aspect they have upon the government; for there may be every tittle of a libel true, and yet it may be a libel still_; so that I put no great stress upon that objection, that the matter of it is not false; and for sedition, it is that which every libel carries in itself: and as every trespass implies _vi and armis_, so every libel against the government carries in it sedition, and all the other epithets that are in the information. This is my opinion as to law in general. I will not debate the prerogatives of the king, nor the privileges of the subject; but as this fact is, I think these venerable bishops did meddle with that which did not belong to them; they took upon them, in a petitionary, to contradict the actual exercise of the government, which I think no particular persons, or singular body, may do."[37] [Footnote 37: 12 St. Tr. 427, 428, 429.] Listen, Gentlemen of the Jury, to the words of Attorney-General Powis:-- "And I cannot omit here to take notice, that _there is not any one thing that the law is more jealous of_, or does more carefully provide for the prevention and punishment of, _than all accusations and arraignments of the government. No man is allowed to accuse even the most inferior magistrate of any misbehavior in his office_, unless it be in a legal course, _though the fact is true_. No man may say of a justice of the peace, to his face, that he is unjust in his office. _No man may tell a judge, either by word or petition, you have given an unjust, or an ill judgment_, and I will not obey it; _it is against the rules and laws of the kingdom, or the like_. No man may say of the great men of the nation, much less of the great officers of the kingdom, that they do act unreasonably or unjustly, or the like; least of all may any man say any such thing of the king; for these matters tend to possess the people, that the government is ill administered; and the consequence of that is, to set them upon desiring a reformation; and what that tends to, and will end in, we have all had a sad and too dear bought experience."[38] [Footnote 38: 12 St. Tr. 281.] Hearken to the law of Solicitor-General Williams:-- "If any person have slandered the government in writing, you are _not to examine the truth of that fact_ in such writing, but the slander which it imports to the king or government; and _be it never so true_, yet if slanderous to the king or the government, _it is a libel and to be punished_; in that case, _the right or wrong_ is _not to be examined, or if what was done by the government be legal, or no_; but whether the party have done such an act. If the king have a power (for still I keep to that), to issue forth proclamations to his subjects, and to make orders and constitutions in matters ecclesiastical, if he do issue forth his proclamation, and make an order upon the matters within his power and prerogative; and if any one would come and bring that power in question otherwise than in parliament, that the matter of that proclamation be not legal, I say that is sedition, and you are not to examine the legality or illegality of the order or proclamation, but the slander and reflection upon the government." "If a person do a thing that is libellous, you shall not examine the fact, but the consequence of it; whether it tended to stir up sedition against the public, or to stir up strife between man and man, in the case of private persons; as if a man should say of a judge, he has taken a bribe, and I will prove it. "They tell the king it is inconsistent with their honor, prudence, and conscience, to do what he would have them to do. And if these things be not reflective upon the king and government, I know not what is. "I'll tell you what they should have done, Sir. If they were commanded to do any thing against _their consciences, they should have acquiesced till the meeting of the parliament_. [At which some people in the court hissed.] "_If the king will impose upon a man what he cannot do, he must acquiesce_; but shall he come and fly in the face of his prince? Shall he say it is illegal? and the prince acts against prudence, honor, or conscience, and throw dirt in the king's face? Sure that is not permitted; that is libelling with a witness."[39] [Footnote 39: 12 St. Tr. 415, 416, 417.] Here, however, there was a JURY--the seven bishops were acquitted amid the tumultuous huzzas of the people, who crowded all the open spaces in the neighborhood of Westminster Hall, and rent the air with their shouts, which even the soldiers repeated.[40] [Footnote 40: See 2 Campbell's Justices, 95.] Two of the Judges--Sir John Powell and Sir Richard Holloway--stood out for law and justice, declaring such a petition to the King was not a libel. They were presently thrust from their offices. * * * * * Gentlemen of the Jury, the Stuarts soon filled up the measure of their time as of their iniquity, and were hustled from the throne of England. But, alas, I shall presently remind you of some examples of this tyranny in New England itself. Now I shall cite a few similar cases of oppression which happened in the reign of the last King of New England. I just now spoke of Edmund Thurlow, showing what his character was and by what means he gained his various offices, ministerial and judicial. I will next show you one instance more of the evil which comes from putting in office such men as are nothing but steps whereon despotism mounts up to its bad eminence. 10. On the 8th of June, 1775,--it will be eighty years on the first anniversary of Judge Curtis's charge to the grand-jury,--John Horne, better known by his subsequent name John Horne Tooke, formerly a clergyman but then a scholarly man devoting himself to letters and politics--published the following notice in the _Morning Chronicle and London Advertiser_, as well as other newspapers:-- "King's-Arms Tavern, Cornhill, June 7, 1775. At a special meeting this day of several members of the Constitutional Society, during an adjournment, a gentleman proposed that a subscription should be immediately entered into by such of the members present who might approve the purpose, for raising the sum of £100, to be applied to the relief of the widows, orphans, and aged parents of our beloved American fellow-subjects, who, faithful to the character of Englishmen, preferring death to slavery, were for that reason only inhumanly murdered by the king's troops at or near Lexington and Concord, in the province of Massachusetts, on the 19th of last April; which sum being immediately collected, it was thereupon resolved that Mr. Horne do pay to-morrow into the hands of Mess. Brownes and Collinson, on account of Dr. Franklin, the said sum of 100_l._ and that Dr. Franklin be requested to apply the same to the above-mentioned purpose." At that time Thurlow, whom I introduced to you a little while ago, was Attorney-General, looking for further promotion from the Tory Government of Lord North. Mansfield was Chief Justice, a man of great ability, who has done so much to reform the English law, but whose hostility to America was only surpassed by the hatred which he bore to all freedom of speech and the rights of the Jury. The Government was eager to crush the liberty of the American Colonies. But this was a difficult matter, for in England itself there was a powerful party friendly to America, who took our side in the struggle for liberty. The city of London, however, was hostile to us, wishing to destroy our merchants and manufacturers, who disturbed the monopoly of that commercial metropolis. The government thought it necessary to punish any man who ventured to oppose their tyranny and sympathize with America. Accordingly it was determined that Mr. Horne should be brought to trial. But as public opinion, stimulated by Erskine, Camden and others, favored the rights of the Jury, it seems to have been thought dangerous to trust the case to a Grand-Jury. Perhaps the Judge had no brother-in-law to put on it, or the Attorney-General--though famous also for his profanity,--doubted that any _swearing_ of his would insure a bill; nay, perhaps he did not venture to "bet ten dollars that I will get an indictment against him." Be that as it may, the Attorney-General dispensed with the services of the Grand-Jury and filed an information _ex officio_ against Mr. Horne, therein styling him a "wicked, malicious, seditious, and ill-disposed person;" charging him, by that advertisement, with "wickedly, maliciously, and seditiously intending, designing, and venturing to stir up and excite discontents and sedition;" "to cause it to be believed that divers of his Majesty's innocent and deserving subjects had been inhumanly murdered by ... his Majesty's troops; and unlawfully and wickedly to encourage his Majesty's subjects in the said Province of Massachusetts to resist and oppose his Majesty's Government." He said the advertisement was "a false, wicked, malicious, scandalous, and seditious libel;" "full of ribaldry, Billingsgate, scurrility, balderdash, and impudence;" "wicked is a term too high for this advertisement;" "its impudence disarmed its wickedness." In short, Mr. Horne was accused of "resisting an officer," obstructing the execution of the "process" whereby the American Provinces were to be made the slave colonies of a metropolitan despotism. The usual charge of doing all this by "force and arms," was of course thrown in. The publication of the advertisement was declared a "crime of such heinousness and of such a size as fairly called for the highest resentment which any court of justice has thought proper to use with respect to crimes of this denomination;" "a libel such that it is impossible by any artifice to aggravate it;" "It will be totally impossible for the imagination of any man, however shrewd, to state a libel more scandalous and base in the fact imputed, more malignant and hostile to the country in which the libeller is born, more dangerous in the example if it were suffered to pass unpunished, than this:" "It is in language addressed to the lowest and most miserable mortals, ... it is addressed to the lowest of the mob, and the bulk of the people, who it is fit should be otherwise taught, who it is fit should be otherwise governed in this country." Mr. Horne was brought to trial on the 4th of July, 1777. He defended himself, but though a vigorous writer, he was not a good speaker, and was in a strange place, while "Thurlow fought on his own dunghill," says Lord Campbell, "and throughout the whole day had the advantage over him." There was a special jury packed for the purpose by the hireling sheriff,--a "London jury" famous for corruption,--a tyrannical and powerful judge, ready to turn every weapon of the court against the defendant and to construct law against the liberty of speech. Of course Mr. Horne was convicted. But how should he be punished? Thurlow determined. "My Lords, the punishments to be inflicted upon misdemeanors of this sort, have usually been of three different kinds; fine, corporal punishment by imprisonment, and infamy by the judgment of the pillory. With regard to the _fine_, it is impossible for justice to make this sort of punishment, however the infamy will always fall upon the offender; because it is well known, that men who have more wealth, who have better and more respectful situations and reputations to be watchful over, employ men in desperate situations both of circumstances and characters, in order to do that which serves their party purposes; and when the punishment comes to be inflicted, this court must have regard to the apparent situation and circumstances of the man employed, that is, of the man convicted, with regard to the punishment. "With regard to _imprisonment_, that is a species of punishment not to be considered alike in all cases, but ..., that it would be proper for the judgment of the court to state circumstances which will make the imprisonment fall lighter or heavier, ... that would be proper, if I had not been spared all trouble upon that account, by hearing it solemnly avowed ... by the defendant himself, that imprisonment was no kind of inconvenience to him; for that certain employments, ... would occasion his confinement in so close a way, that it was mere matter of circumstance whether it happened in one place or another; and that the longest imprisonment which this court could inflict for punishment, was not beyond the reach of accommodation which those occasions rendered necessary to him. In this respect, therefore, imprisonment is not only, ... not an adequate punishment to the offence, but the public are told, ... that it will be _no punishment_. "I stated in the third place to your Lordships, _the pillory to have been the usual punishment for this species of offence_. I apprehend it to have been so, in this case, for above two hundred years before the time when prosecutions grew rank in the Star-Chamber ... the punishment of the pillory was inflicted, not only during the time that such prosecutions were rank in the Star-Chamber, but it also continued to be inflicted upon this sort of crime, and that by the best authority, after the time of the abolishing the Star-Chamber, after the time of the Revolution, and while my Lord Chief Justice Holt sat in this court. "I would desire no better, no more pointed, nor any more applicable argument than what that great chief justice used, when it was contended before him that an abuse upon government, upon the administration of several parts of government, amounted to nothing, because there was no abuse upon any particular man. That great chief justice said, they amounted to much more; they are _an abuse upon all men_. Government cannot exist, if the law cannot restrain that sort of abuse. Government cannot exist, unless ... the full punishment is inflicted which the most approved times have given to offences of much less denomination than these, of much less. I am sure it cannot be shown, that in any one of the cases that were punished in that manner, the aggravations of any one of those offences were any degree adequate to those which are presented to your Lordship now. If offences were so punished then, which are not so punished now, they lose that expiation which the wisdom of those ages thought proper to hold out to the public, as a restraint from such offences being committed again. "I am to judge of crimes in order to the prosecution; your lordship is to judge of them ultimately for punishment. I should have been extremely sorry, if I had been induced by any consideration whatever, to have brought a crime of the magnitude which this was (of the magnitude which this was when I first stated it) into a court of justice, if I had not had it in my contemplation also that it would meet with an adequate restraint, which I never thought would be done without affixing to it the _judgment of the pillory_; I should have been very sorry to have brought this man here, after all the aggravations that he has superinduced upon the offence itself, if I had not been persuaded that those aggravations would have induced the _judgment of the pillory_."[41] [Footnote 41: 20 St. Tr. 780-783.] But Mansfield thought otherwise, and punished him with a fine of £200 and imprisonment for twelve months.[42] [Footnote 42: 20 St. Tr. 651; 5 Campbell, 415.] "Thus," says Lord Brougham, "a bold and just denunciation of the attacks made upon our American Brethren, which nowadays would rank among the very mildest and tamest effusions of the periodical press, condemned him to prison for twelve months."[43] [Footnote 43: Statesmen, 2 Series, 109.] Thurlow was a man of low intellect, of a fierce countenance, a saucy, swaggering, insolent manner, debauched in his morals beyond the grossness of that indecent age,--ostentatiously living in public concubinage,--a notorious swearer in public and private. But he knew no law above the will of the hand that fed and could advance him, no justice which might check the insolence of power. And in less than a month after Mr. Horne was sent to jail, Thurlow was made Lord Chancellor of England, and sat on the woolsack in the House of Lords. His chief panegyrist can only say, "in worse times there have been worse chancellors." "But an age of comparative freedom and refinement has rarely exhibited one who so ill understood, or at least so ill discharged, the functions of a statesman and legislator." I will enrich this part of my argument with an example of the opinions of this Judge, which would endear him to the present administration in America, and entitle him to a high place among southern politicians. In 1788 a bill was brought into Parliament to mitigate the horrors of the African slave-trade. The Lord Chancellor, Thurlow, opposed it and said:-- "It appears that the French have offered premiums to encourage the African [slave] trade, and that they have succeeded. The natural presumption therefore is, that _we ought to do the same_. For my part, my Lords, I have no scruple to say that if the 'five days' fit of philanthropy' [the attempt to abolish the slave-trade] which has just sprung up, and which has slept for twenty years together, were allowed to sleep one summer longer, it would appear to me rather more wise than thus to take up a subject piecemeal, which it has been publicly declared ought not to be agitated at all till next session of Parliament. Perhaps, by such imprudence, the slaves themselves may be prompted by their own authority, to proceed at once to a 'total and immediate abolition of the trade.' One witness has come to your Lordship's bar with a face of woe--his eyes full of tears, and his countenance fraught with horror, and said, '_My Lords, I am ruined if you pass this bill! I have risked £30,000 on the trade this year! It is all I have been able to gain by my industry, and if I lose it I must go to the hospital!_' I desire of you to think of such things, my Lords, in your _humane phrensy, and to show some humanity to the whites as well as to the negroes_."[44] [Footnote 44: 5 Campbell, 460; 27 Parl. Hist. 638.] One measure of tyranny in the hands of such Judges is Constructive Crime, a crime which the revengeful, or the purchased judge distils out of an honest or a doubtful deed, in the alembic he has made out of the law broken up and recast by him for that purpose, twisted, drawn out, and coiled up in serpentine and labyrinthine folds. For as the sweet juices of the grape, the peach, the apple, pear, or plumb may be fermented, and then distilled into the most deadly intoxicating draught to madden man and infuriate woman, so by the sophistry of a State's Attorney and a Court Judge, well trained for this work, out of innocent actions, and honest, manly speech, the most ghastly crimes can be extorted, and then the "leprous distilment" be poured upon the innocent victim, "And a most instant tetter barks about, Most lazar-like, with vile and loathsome crust, All his smooth body!" Here is an example. In 1668 some London apprentices committed a riot by pulling down some houses of ill-fame in Moorfields, which had become a nuisance to the neighborhood; they shouted "Down with Bawdy Houses." Judge Kelyng had them indicted for High Treason. He said it was "an accroachment of royal authority." It was "levying war." He thus laid down the law. "The prisoners are indicted for levying war against the King. By levying war is not only meant when a body is gathered together as an army, but if a _company of people will go about any public reformation, this is high treason_. These people do pretend their design was against brothels; now let men to go about to pull down brothels, with a captain [an apprentice "walked about with a green apron on a pole"] and an ensign and weapons,--if this thing be endured, _who is safe_? It is high treason because it doth betray the peace of the nation, and _every subject is as much wronged as the King_; for if every man may reform what he will, no man is safe; therefore the thing is of desperate consequence, and we must make this for a public example. There is reason why we should be very cautious; we are but recently delivered from rebellion [Charles I. had been executed nineteen years before, and his son had been in peaceable possession of the throne for eight years], and we know that that rebellion first began under the pretence of religion and the law; for the Devil hath always this vizard upon it. We have great reason to be very wary that we fall not again into the same error. Apprentices for the future shall not go on in this manner. It proved that Beasly went as their captain with his sword, and flourished it over his head [this was the "weapons,"] and that Messenger walked about Moorfields with a green apron on the top of a pole [this was the "ensign"]. What was done by one, was done by all; in high treason all concerned are principals."[45] [Footnote 45: 1 Campbell's Justices, 404-5; Kelyng's Reports, 70.] Thereupon thirteen apprentices who had been concerned in a riot were found guilty of high treason, sentenced, and four hanged. All of the eleven Judges--Twysden was one of them--concurred in the sentence, except Sir Matthew Hale. He declared there was no treason committed; there was "but an unruly company of apprentices."[46] [Footnote 46: 6 St. Tr. 879, note 911.] This same Judge Kelyng, singularly thick-headed and ridiculous, loved to construct crimes where the law made none. Thus he declares, "in cases of high treason, if any one do any thing by which he showeth his _liking_ and _approbation_ to the Traitorous Design, this is in him High Treason. For all are Principals in High Treason, who contribute towards it by Action or Approbation."[47] He held it was an overt act of treason to print a "treasonable proposition," such as this, "The execution of Judgment and Justice is as well the people's as the magistrates' duty, and if the magistrates pervert Judgment, the people are bound by the law of God to execute judgment without them and upon them."[48] So the printer of the book, containing the "treasonable proposition," was executed. A man, by name Axtell, who commanded the guards which attended at the trial and execution of Charles I., was brought to trial for treason. He contended that he acted as a soldier by the command of his superior officer, whom he must obey, or die. But it was resolved that "that was no excuse, for his superior was a Traitor and all that joined with him in that act were Traitors, and did by that approve the Treason, and when the command is Traitorous, then the Obedience to that Command is also Traitorous." So Axtell must die. The same rule of course smote at the head of any private soldier who served in the ranks![49] [Footnote 47: Kelyng's Reports, 12.] [Footnote 48: Ibid. 22.] [Footnote 49: Kelyng's Reports, 13.] These wicked constructions of treason by the court, out of small offences or honest actions, continued until Mr. Erskine attacked them with his Justice, and with his eloquence exposed them to the indignation of mankind, and so shamed the courts into humanity and common sense.[50] Yet still the same weapon lies hid under the Judicial bench as well of England as of America, whence any malignant or purchased Judge, when it suits his personal whim or public ambition, may draw it forth, and smite at the fortune, the reputation, or the life of any innocent man he has a private grudge against, but dares not meet in open day. Of this, Gentlemen of the Jury, in due time. [Footnote 50: See his Defence of Hardy, 24 St. Tr. 877.] * * * * * The mass of men, busy with their honest work, are not aware what power is left in the hands of judges--wholly irresponsible to the people; few men know how they often violate the laws they are nominally set to administer. Let me take but a single form of this judicial iniquity--the Use of Torture, borrowing my examples from the history of our mother country. In England the use of torture has never been conformable either to common or to statute law; but how often has it been practised by a corrupt administration and wicked judges! In 1549 Lord Seymour of Sudley, Admiral of England, was put to the torture;[51] in 1604 Guy Fawkes was "horribly racked."[52] Peacham was repeatedly put to torture as you have just now heard, and that in the presence of Lord Bacon himself in 1614.[53] Peacock was racked in 1620, Bacon and Coke both signing the warrant for this illegal wickedness,--"he deserveth it as well as Peacham did," said the Lord Chancellor, making his own "ungodly custom" stand for law.[54] In 1627 the Lord Deputy of Ireland wanted to torture two priests, and Charles I. gave him license, the privy council consenting--"all of one mind that he might rack the priests if he saw fit, and hang them if he found reason!"[55] In 1628 the judges of England solemnly decided that torture was unlawful; but it had always been so,--and Yelverton, one of the judges, was a member of the commission which stretched Peacham on the rack.[56] Yet, spite of this decision, torture still held its old place, and a warrant from the year 1610 still exists for inflicting this illegal atrocity on a victim of the court.[57] Yet even so late as 1804, when Thomas Pictou, governor of Trinidad, put a woman to tortures of the most cruel character, by the connivance of the court he entirely escaped from all judicial punishment.[58] Yes, torture was long continued in England itself, though not always by means of thumbscrews and Scottish boots and Spanish racks; the monstrous chains, the damp cells, the perpetual irritation which corrupt servants of a despotic court tormented their victims withal, was the old demon under another name.[59] Nay, within a few months the newspapers furnish us with examples of Americans being put to the torture of the lash to force a confession of their alleged crime--and this has been done by the power which this court has long been so zealous to support--the Slave Power of America. [Footnote 51: See 2 St. Tr. 774, note.] [Footnote 52: 1 Jardine, Crim. Tr. 16.] [Footnote 53: 2 St. Tr. 871.] [Footnote 54: 1 Jardine, 19.] [Footnote 55: Ibid.] [Footnote 56: 3 St. Tr. 371. See 30 St. Tr. 892.] [Footnote 57: 1 Jardine, 20. See Emlyn, Preface to St. Tr. in 1 Hargrave, p. iii.] [Footnote 58: 30 St. Tr. 225.] [Footnote 59: See case of Huggins in 17 St. Tr. 297, 309.] It has been well said:-- "It must be owned that the Guards and Fences of the law have not always proved an effectual security for the subject. The Reader will ... find many Instances wherein they who hold the sword of Justice did not employ it as they ought to in punishment of Evil-Doers, but to the Oppression and Destruction of Men more righteous than themselves. Indeed it is scarce possible to frame a Body of Laws which a tyrannical Prince, influenced by wicked Counsellors and corrupt Judges, may not be able to break through.... The Law itself is a dead letter. Judges are the interpreters of it, and if they prove men of no Conscience nor Integrity, they will give what sense they will to it, however different from the true one; and when they are supported by superior authority, will for a while prevail, till by repeated iniquities they grow intolerable and throw the State into convulsions which may at last end in their own ruin. This shows how valuable a Blessing is an upright and learned Judge, and of what great concern it is to the public that none be preferred to that office but such whose Ability and Integrity may be safely depended on."[60] [Footnote 60: 1 Hargrave's St. Tr. 6.] Thus, Gentlemen of the Jury, is it that judges who know no law but the will of "the hand that feeds them," appointed for services rendered to the enemies of mankind and looking for yet higher rewards, have sought to establish the despotism of their masters on the ruin of the People. But the destruction of obnoxious individuals is not the whole of their enormity; so I come to the next part of the subject. (III.) The next step is for such judges to interpret, wrest, and pervert the laws so as to prepare for prospective Acts of Tyranny. Here, Gentlemen of the Jury, I shall have only too many examples to warn you with. Early in his reign James I. sought to lay burthensome taxes on the people without any act of Parliament; this practice was continued by his successors. 1. In 1606 came "the great Case of Impositions," not mentioned in the ordinary histories of England. The king assumed the right to tax the nation by his own prerogative. He ordered a duty of five shillings on every hundred pounds of currants imported into the kingdom to be levied in addition to the regular duty affixed by Act of Parliament. This was contrary to law, nay, to the Constitution of England, her Magna Charta itself provided against unparliamentary taxation. Sir John Bates, a London merchant, refused to pay the unlawful duty, and was prosecuted by information in the Star-Chamber. "The courts of justice," says Mr. Hallam, "did not consist of men conscientiously impartial between the king and the subject; some corrupt with hopes of promotion, many more fearful of removal, or awe-struck by the fear of power." On the "trial" it was abundantly shown that the king had no right to levy such a duty. "The accomplished but too pliant judges, and those indefatigable hunters of precedents for violations of constitutional government, the great law-officers of the crown," decided against the laws, and Chief Justice Fleming maintained that the king might lay what tax he pleased on imported goods! The corrupt decision settled the law for years--and gave the king absolute power over this branch of the revenue, involving a complete destruction of the liberty of the people,--for the Principle would carry a thousand measures on its back.[61] The king declared Fleming a judge to his "heart's content." Bacon's subserviency did not pass unrewarded. Soon after James issued a decree under the great seal, imposing heavy duties on almost all merchandise "to be for ever hereafter paid to the king and his successors, on pain of his displeasure."[62] Thus the Measure became a Principle. [Footnote 61: 2 St. Tr. 371, and 11 Hargrave, 29; 1 Campbell's Justices, 204.] [Footnote 62: 1 Hallam, 231. See 1 Parl. Hist. 1030, 1132, 1150; Baker's Chronicle, 430.] 2. James, wanting funds, demanded of his subjects forced contributions of money,--strangely called "Benevolences," though there was no "good-will" on either side. It was clearly against the fundamental laws of the kingdom. Sir Oliver St. John refused to pay what was demanded of him, and wrote a letter to the mayor of Marlborough against the illegal exaction. For this he was prosecuted in the Star-Chamber in 1615 by Attorney-General Bacon. The court, with Lord Chancellor Ellesmere at its head, of course decided that the king had a right to levy Benevolences at pleasure. St. John was fined five thousand pounds, and punished by imprisonment during the king's pleasure. This decision gave the king absolute power over all property in the realm,--every private purse was in his hands![63] With such a court the king might well say, "Wheare any controversyes arise, my Lordes the Judges chosene betwixte me and my people shall discide and rulle me."[64] [Footnote 63: 2 St. Tr. 899; 1 Hallam, 251; 2 Campbell, 291.] [Footnote 64: 1 Parl. Hist. 1156.] 3. Charles I. proceeded in the steps of his father: he levied forced loans. Thomas Darnel and others refused to pay, and were put in prison on a General Warrant from the king which did not specify the cause of commitment. They brought their writs of _habeas corpus_, contending that their confinement was illegal. The matter came to trial in 1627. Sir Randolf Crewe, a man too just to be trusted to do the iniquity desired, was thrust out of office, and Sir Nicolas Hyde appointed chief justice in his place. The actual question was, Has the king a right to imprison any subject forever without process of law? It was abundantly shown that he had no such right. But the new chief justice, put in power to oppress the people, remembering the hand that fed him, thus decreed,--"Mr. Attorney hath told you that the _king hath done it, and we trust him in great matters_, and he is bound by law, and he bids us proceed by law; ... and we make no doubt but _the king_, if you look to him, he knowing the cause why you are imprisoned, _he will have mercy_; but that we believe that ... he cannot deliver you, but _you must be remanded_." Thus the judges gave the king absolute power over the liberties of any subject.[65] [Footnote 65: 3 St. Tr. 1. See also 2 Parl. Hist. 288; 1 Rushworth and 1 Mrs. Macaulay, 341.] But the matter was brought up in Parliament and discussed by men of a different temper, who frightened the judge by threats of impeachment, and forced the king to agree to the PETITION OF RIGHT designed to put an end to all such illegal cruelty. Before Charles I. would sign that famous bill, he asked Judge Hyde if it would restrain the king "from committing or restraining a subject _without showing cause_." The crafty judge answered, "_Every law_, after it is made, _hath its exposition, which is to be left to the courts of justice to determine_; and although the Petition be granted _there is no fear of [such a] conclusion as is intimated in the question_!" That is, the court will interpret the plain law so as to oppress the subject and please the king! As the judges had promised to annul the law, the king signed it.[66] Charles dissolved Parliament and threw into jail its most noble and powerful members--one of whom, Eliot, never left the prison till death set him free.[67] The same chief justice gave an extrajudicial opinion justifying the illegal seizure of the members,--"that a parliament man committing an offence against the King in Parliament not in a parliamentary course, may be punished after the Parliament is ended;" "that by false slanders to bring the Lords of the Council and the Judges, not in a parliamentary way, into the hatred of the people and the government into contempt, was punishable out of Parliament, in the Star-Chamber, as an offence committed in Parliament beyond the office, and beside the duty of a parliament man."[68] Thus the judges struck down freedom of speech in Parliament. [Footnote 66: 1 Campbell, Justices, 311; 2 Parl. Hist. 245, 350, 373, 408, _et al._; 3 St. Tr. 59.] [Footnote 67: See above, p. 29.] [Footnote 68: 1 Campbell's Justices, 315.] 4. In 1634 Charles I. issued a writ levying ship-money, so called, on some seaport towns, without act of Parliament. London and some towns remonstrated, but were forced to submit, all the courts being against them. Chief Justice Finch, "a servile tool of the despotic court," generalized this unlawful tax, extending it to inland towns as well as seaboard, to all the kingdom. All landholders were to be assessed in proportion to their property, and the tax, if not voluntarily paid, collected by force. The tax was unpopular, and clearly against the fundamental law of the kingdom. But if the government could not get the law on its side it could control its interpreters, for "every law hath its exposition." So the Judges of Assize were ordered in their circuits to tell the people to _comply with the order and pay the money_! The King got all extrajudicial opinion of the twelve Judges delivered irregularly, out of court, in which they unanimously declared that in time of danger the _King might levy such tax as he saw fit, and compel men to pay it_. He was the sole judge of the danger, and of the amount of the tax.[69] [Footnote 69: 3 St. Tr. 825. See the opinion of the Judges with their twelve names, 844, and note [dagger symbol].] John Hampden was taxed twenty shillings--he refused to pay, though he knew well the fate of Richard Chambers a few years before. The case came to trial in 1637, in the Court of Exchequer before Lord Chancellor Coventry, a base creature, mentioned before. It was "the great case of Ship-money." The ablest lawyers in England showed that the tax was contrary to Magna Charta, to the fundamental laws of the realm, to the Petition of Right and to the practice of the kingdom. Hampden was defeated. Ten out of the twelve Judges sided with the King. Croke as the eleventh had made up his mind to do the same, but his noble wife implored him not to sacrifice his conscience for fear of danger, and the Woman, as it so often happens, saved the man.[70] Attorney-General Banks thus set forth the opinion of the Government, and the consequent "decision" of the Judges. He rested the right of levying Ship-money on the "intrinsic, absolute authority of the King." There was no Higher Law in Old England in 1634! Banks said, "this power [of arbitrary and irresponsible taxation] is innate in the person of an absolute King, and in the persons of the Kings of England. All-magistracy it is of nature; and obedience and subjection [to] it is of nature. This power is not anyways derived from the people, but reserved unto the King when positive laws first began. For the King of England, he is an absolute monarch; nothing can be given to an absolute prince but what is inherent in his person. He can do no wrong. He is the sole judge and we ought not to question him, whom the law trusts we ought not to distrust." "The Acts of Parliament contain no express words to take away so high a prerogative; and the King's prerogative, even in lesser matters, is always saved, where express words do not restrain it."[71] [Footnote 70: Whitelocke, Memor. 25.] [Footnote 71: 2 Hallam, 16.] It required six months of judicial labor to bring forth this result, which was of "infinite disservice to the crown." Thereupon Mr. Hallam says:-- "Those who had trusted to the faith of the judges were undeceived by the honest repentance of some, and looked with indignation on so prostituted a crew. That respect for courts of justice which the happy structure of our Judicial administration has in general kept inviolate, was exchanged for distrust, contempt, and a desire of vengeance. They heard the speeches of some of the Judges with more displeasure than even their final decision. Ship-money was held lawful by Finch and several other Judges, not on the authority of precedents which must in their nature have some bounds, but on principles subversive of every property or privilege in the subject. Those paramount rights of monarchy, to which they appealed to-day in justification of Ship-money, might to-morrow serve to supersede other laws, and maintain more exertions of despotic power. It was manifest by the whole strain of the court lawyers that no limitations on the King's authority could exist but by the King's sufferance. This alarming tenet, long bruited among the churchmen and courtiers, now resounded in the halls of justice."[72] [Footnote 72: 2 Hallam, 18.] Thus by the purchased vote of a corrupt Judiciary all the laws of Parliament, all the customs of the Anglo-Saxon tribe, Magna Charta itself with its noble attendant charters, were at once swept away, and all the property of the kingdom put into the hands of the enemy of the People. These four decisions would make the King of England as absolute as the Sultan of Turkey, or the Russian Czar. If the opinion of the Judges in the case of Impositions and Ship-money were accepted in law,--then all the Property of the People was the King's; if the courts were correct in their judgments giving the King the power by his mere will to imprison any subject, during pleasure, and also to do the same even with members of Parliament and punish them for debates in the House of Commons, then all liberty was at an end, and the King's Prerogative extended over all acts of Parliament, all property, all persons. 5. One step more must be taken to make the logic of despotism perfect, and complete the chain. That work was delegated to clergymen purchased for the purpose--Rev. Dr. Robert Sibthorpe and Rev. Dr. Roger Mainwaring. The first in a sermon "of rendering all their dues," preached and printed in 1627, says, "the Prince who is the Head, and makes his Court and Council, it is his duty to direct and make laws. 'He doth whatsoever pleaseth him;' 'where the word of the King is there is power, and who may say unto him, What doest thou?'" And again, "If Princes command any thing which subjects may not perform, because it is against the Laws of God, or of Nature, or impossible; yet Subjects are bound to undergo the punishment, without either resisting, or railing, or reviling, and are to yield a Passive Obedience where they cannot exhibit an Active one, ... but in all others he is bound to active obedience."[73] [Footnote 73: Cited in Franklyn, 208; 1 Rushworth, 422, 436, 444.] Mainwaring went further, and in two famous sermons--preached, one on the 4th of July, 1628, the other on the 29th of the same month--declared that "the King is not bound to observe the Laws of the Realm concerning the Subject's Rights and Liberties, but that his _Royal will and Command_, in imposing Loans, and Taxes, without consent of Parliament, _doth oblige the subject's conscience upon pain of eternal damnation_. That those who refused to pay this Loan offended against the Law of God and the King's Supreme Authority, and became guilty of Impiety, Disloyalty, and Rebellion. And that the authority of Parliament is not necessary for the raising of Aid and Subsidies; and that the slow proceedings of such great Assemblies were not fitted for the Supply of the State's urgent necessities, but would rather produce sundry impediments to the just designs of Princes." "_That Kings partake of omnipotence with God._"[74] [Footnote 74: Franklyn, 208, 592. These two Sermons were published in a volume with the title "Religion and Allegiance."... "Published by his Majesty's special command." (London, 1628.) Prof. Stuart seems inspired by this title in giving a name to his remarkable publication--written with the same spirit as Dr. Mainwaring's--"Conscience and the Constitution." (Andover, 1851.) See 3 St. Tr. 335; 1 Rushworth, 422, 436, 585, _et al._; 1 Hallam, 307; 2 Parl. Hist. 388, 410.] The nation was enraged. Mainwaring was brought before Parliament, punished with fine and imprisonment and temporary suspension from office and perpetual disability for ecclesiastical preferment. But the King who ordered the publication of the sermons, and who doubtless had induced him to preach them, immediately made him Rector of Stamford Parish, soon appointed him Dean of Worcester, and finally in 1645 made him Bishop of St. David's. A few years ago such clerical apostasy would seem astonishing to an American. But now, Gentlemen of the Jury, so rapid has been the downfall of public virtue, that men filling the pulpits once graced and dignified by noblest puritanic piety, now publicly declare there is no law of God above the fugitive slave bill. Nay, a distinguished American minister boldly proclaimed his readiness to send his own Mother (or "Brother") into eternal bondage! Thus modern history explains the old; and the cheap bait of a republican bribe can seduce American dissenters, as the wealthy lure of royal gifts once drew British churchmen into the same pit of infamy. Alas, hypocrisy is of no sect or nation. Gentlemen, the Government of England once decreed "that every clergyman, four times in the year, should instruct his parishioners in the Divine right of Kings, and the damnable sin of resistance."[75] No Higher Law! America has ministers who need no act of Parliament to teach them to do the same; they run before they are sent. [Footnote 75: 2 Campbell, 460; 1 Rushworth, 1205.] 6. After the head of one Stuart was shorn off and his son had returned, no wiser nor better than his father, the old progress of despotism began anew. I pass over what would but repeat the former history, and take two new examples to warn the nation with, differing from the old only in form. In 1672, Charles II. published a proclamation denouncing rigorous penalties against all such as _should speak disrespectfully of his acts_, or _hearing others thus speak should not immediately inform the magistrates_! Nay, in 1675, after he had sold himself to the French king, and was in receipt of an annual pension therefrom, he had this test-oath published for all to sign: "I do solemnly declare that _it is not lawful upon any pretence whatever to take up arms against the king_, ... and that _I will not_, at any time to come, _endeavor the alteration of the government_, either in Church or State."[76] [Footnote 76: Carroll's Counter Revolution (Lond. 1846), 99, _et seq._] An oath yet more stringent was enforced in Scotland with the edge of the sword, namely, to defend all the prerogatives of the crown, "_never without the king's permission to take part in any deliberations upon ecclesiastical or civil affairs; and never to seek any reform in Church or State_." Notwithstanding all that the Charleses had done to break down the liberty of Englishmen, still the great corporate towns held out, intrenched behind their charters, and from that bulwark both annoyed the despot and defended the civil rights of the citizen. They also must be destroyed. So summons of _quo warranto_ were served upon them, which frightened the smaller corporations and brought down their charters. Jeffreys was serviceable in this wicked work, and on his return from his Northern Circuit, rich with these infamous spoils, as a reward for destroying the liberties of his countrymen, the king publicly presented him with a ring, in token of "acceptance of his most eminent services." This fact was duly blazoned in the Gazette, and Jeffreys was "esteemed a mighty favorite," which, "together with his lofty airs, made all the charters, like the walls of Jericho, fall down before him, and he returned, laden with surrenders, the spoil of towns."[77] [Footnote 77: 8 St. Tr. 1038, and the quotations from North (Examen.) Sprat, and Roger Coke, in note on p. 1041, _et seq._ See, too, Fox, James II. p. 48, 54, and Appendix, Barillon's Letter of Dec. 7th, 1684.] London still remained the strong-hold of commerce, of the Protestant Religion, and of liberal Ideas in domestic Government; for though subsequently corrupted by lust of gain, which sought a monopoly, the great commercial estates and families of England were not then on the side of Despotism, as now strangely happens in America. When the king sought to ruin Shaftesbury,--a corrupt man doubtless, but then on the side of liberty, the enemy of encroaching despotism,--a London Grand-Jury refused to find a bill, and was warmly applauded by the city. Their verdict of IGNORAMUS was a "personal liberty bill" for that time, and therefore was the king's wrath exceeding hot, for "Ignoramus was mounted in Cathedra," and there was a stop put to such wickedness. So London must be brought down. She refused to surrender her Charter. In 1682 the king proceeded to wrest it from her by the purchased hand of the courts of law. But even they were not quite adequate to the work. So Chief Justice Pemberton was displaced, and Saunders,--a man as offensive in his personal habit of body as he was corrupt in conduct and character--was put in his office. Dolbin, too just for the crime demanded of him, was turned out, and Withins made to succeed him. For "so great a weight was there at stake as could not be trusted to men of doubtful principles," says North. Saunders, who had plotted this whole matter, was struck with an apoplexy when sentence was to be given, but sent his opinion in writing. Thus on the judgment given by only two judges, who assigned no reasons for their decision, it was declared that the Charter of London was forfeit, and the liberties and franchises of the city should "be seized into the king's hands."[78] [Footnote 78: 2 Hallam, 333; Burnet, Own Times (London, 1838), 350; 8 St. Tr. 1039, 1081 note, 1267, _et seq._; 2 Campbell, Justices, 63; North's Examen. 626; Fox, 54.] Thus fell the charter of London! Gentlemen of the Jury, the same sword was soon to strike at the neck of New England; the charter of Massachusetts could not be safe in such a time. In 1686 James II. wished to destroy Protestantism,--not that he loved the Roman form of religion, but that tyranny which it would help him get and keep. So he claimed the right by his royal prerogative to dispense with any laws of the land. Of the twelve Judges of England eight were found on his side, and the four unexpectedly proven faithful were at once dismissed from office and their places filled with courtiers of the king, and the court was unanimous that the king had a constitutional right to destroy the constitution. Then he had not only command of the purses of his subjects and their bodies, but also of their mind and conscience, and could dictate the actual Religion of the People as well as the official "religion" of the priests.[79] [Footnote 79: 11 St. Tr. 1165; 12 Ibid. 358.] One State-secret lay at the bottom of the Stuarts' plans,--to appoint base men for judges, and if by accident a just man came upon the bench, to keep him in obscurity or to hustle him from his post. What names they offer us--Kelyng, Finch, Saunders, Wright, Jeffreys, Scroggs![80] infamous creatures, but admirable instruments to destroy generous men withal and devise means for the annihilation of the liberties of the people. Historians commonly dwell on the fields of battle, recording the victories of humanity, whereof the pike and gun were instruments; but pass idly over the more important warfare which goes on in the court house, only a few looking on, where lawyers are the champions of mankind, and the battle turns on a sentence; nay, on a word which determines the welfare of a nation for ages to come. On such little hinges of law do the great gates hang, and open or shut to let in the happiness or the ruin of millions of men! Naseby and Worcester are important places truly, venerable for great deeds. Cromwell and Blake are names not likely to perish while men can appreciate the heroism which sheds blood. But Westminster Hall has rung with more important thunder than cannon ever spoke, and Pym and Selden, St. John and Hampden--nay, Penn, Bunyan, Fox, Lilburne--have done great service for mankind. Gentlemen of the Jury, it is a matter of great magnitude which hinges on the small question of fact and law to-day. You are to open or shut for Humanity. If the People make themselves sheep there will be wolves enough to eat you up. [Footnote 80: This last name is thought to be extinct in Great Britain, but I find one Thomas Scruggs _in Massachusetts_ in 1635 _et post_, 1 Mass. Records (1628-1641), index.] It is difficult to calculate the amount of evil wrought by such corrupt judges as I have spoken of; they poison the fountains of society. I need not speak of monsters like Scroggs and Jeffreys, whose names rot in perpetual infamy, but creatures less ignoble, like Wright, Saunders, Finch, Kelyng, Thurlow, Loughborough, and their coadjutors, must be regarded as far more dangerous than thieves, murderers, or pirates. A cruel, insolent Judge selecting the worst customs, the most oppressive statutes, and decisions which outrage human nature--what an amount of evil he can inflict on groaning humanity! * * * * * Gentlemen of the Jury, in this long sad history of judicial tyranny in England there is one thing particularly plain: such judges hate freedom of speech, they would restrict the Press, the Tongue, yes, the Thought of mankind. Especially do they hate any man who examines the actions of the government and its servile courts, and their violation of justice and the laws. They wish to take exemplary and malignant vengeance on all such. Let me freshen your knowledge of some examples. 1. In 1410 the government made a decree "that whatsoever they were that should rede the Scriptures in the mother tongue, they should forfeit land, catel, body, lif, and godes from their heyres forever, and so be condempned for heretykes to God, enemies to the crowne, and most errant traiters to the land." The next year, in _one day thirty-nine persons were first hanged and then burned for this "crime."_[81] [Footnote 81: 1 St. Tr. 252.] 2. In 1590, Mr. Udall, a Puritan minister, published a book, "Demonstrations of Discipline," not agreeable to the authorities. He was brought to a trial for a Felony,--not merely a "misdemeanor." The jury were ordered by the judge to find him guilty of that crime if they were satisfied that he published the book,--for the court were to judge whether the deed amounted to that crime! He was found "guilty," and died in jail after nearly three years of cruel confinement.[82] [Footnote 82: 1 St. Tr. 1271; 1 Neal's Puritans (N.Y. 1844), 190. See 16 Parl. Hist. 1276, where Mr. Dunning says this is the first example of such a charge to a jury.] 3. In 1619 one Williams of Essex wrote a book explaining a passage in the book of Daniel as foretelling the death of James I. in 1621. He inclosed the manuscript in a box, sealed it, and secretly conveyed it to the king. For this he was tried for high treason, and of course executed. "_Punitur Affectus, licet non sequatur Effectus_," said the court, for "_Scribere est agere_," "Punish the wish though the object be not reached," for "writing is doing!"[83] [Footnote 83: 2 St. Tr. 1085.] 4. In 1664 Mr. Keach, a Baptist, published a "Childs' Instructer, or a New and Easy Primmer," in which he taught the doctrines of his sect, "that children ought not to be baptized" but only adults; "that laymen may preach the gospel." He was brought before Lord Chief Justice Hyde, who after insulting the prisoner, thus charged the grand-jury:--"He is a base and dangerous fellow; and if this be suffered, children by learning of it will become such as he is, and therefore I hope you will do your duty." Of course such a jury indicted him. The "trial" took place before Judge Scroggs; the Jury were at first divided in opinion. "But," said the Judge, "you must agree!" So they found him guilty. He was fined "£20, twice set in the pillory, and bound to make public submission."[84] [Footnote 84: 7 St. Tr. 687.] 5. In 1679 George Wakeman and others were tried for high treason before Scroggs, whose conduct was atrocious, and several pamphlets were published commenting on the ridiculous and absurd conduct of this functionary, "Lord Chief Justice Scroggs." One Richard Radley in a bantering talk had bid another man "Go to Weal Hall, to my Lord Scroggs, _for he has received money enough of Dr. Wakeman_!" Radley was indicted for "speaking scandalous words of Chief Justice Scroggs." Whereupon at the opening of the court that eminent officer, who did not disdain to wreak public and judicial vengeance on heads that wrought his private and personal grief, made a speech setting forth his magisterial opinions on the liberty of the press. Doubtless this court knows original authority for the opinions they follow; but for your instruction, Gentlemen of the Jury, I will give you the chief things in the judicial speech of Scroggs, Lord Chief Justice of the Supreme Court of England in 1679.[85] [Footnote 85: 6 St. Tr. 701; see Dunning in 16 Parl. Hist. 1276, _et seq._] "For these hireling scribblers who traduce it [the fairness and equality of the trial in which he had been notoriously unfair and unequal], who write to eat, and lie for bread, I intend to meet with them another way; for they are only safe while they can be secret; but so are vermin, so long as they can hide themselves.... They shall know that the law wants not the power to punish a libellous and licentious press, nor I a resolution to exact it. And this is all the answer is fit to be given (besides a whip) to these hackney writers." "However, in the mean time, the _extravagant boldness of men's pens and tongues is not to be endured, but shall be severely punished_; for if once causes come to be tried with complacency to particular opinions, and shall be innocently censured if they go otherwise, public causes shall all receive the doom as the multitude happen to be possessed; and at length any cause shall become public ... at every session the Judges shall be arraigned, the Jury condemned, and the verdicts overawed to comply with popular wish and indecent shouts." "There are a set of men ... that too much approve and countenance such vulgar ways, ... that embrace all sorts of informations, true or false, likely or impossible, nay though never so silly and ridiculous, they refuse none; so shall all addresses be made to them, and they be looked on as the only patrons of religion and government!" His associates chimed in with accordant howl. Puny Judge Jones declared,-- "We have a particular case here before us, as a matter of scandal against a great Judge, the _greatest Judge in the kingdom_, in criminal causes [the Lord Chancellor Nottingham was greater in _civil_ causes]; and it is a great and an high charge upon him. And certainly there was never any age, I think, more licentious than this in aspersing governors, scattering of libels and _scandalous speeches against those that are in authority_: and without all doubt _it doth become the court to show their zeal in suppressing it_." [It was 'resisting an officer.'] "That trial [of Dr. Wakeman] was managed with _exact justice and perfect integrity_. And therefore I do think it very fit that this person be proceeded against by an information, that he may be made _a public example_ to all such as shall presume to scandalize the government, and the governors, with any false aspersions and accusations." Accordingly Mr. Radley, for that act, was convicted of speaking "scandalous words against the Lord Chief Justice Scroggs" and fined £200.[86] [Footnote 86: 7 St. Tr. 701.] Mr. Hudson says of the Star-Chamber, "So tender the court is of upholding the honor of the sentence, as they will punish them who speak against it with great severity."[87] [Footnote 87: In 2 Collectanea Juridica, 228.] 6. In 1680 Benjamin Harris, a bookseller, sold a work called "An Appeal from the country to the city for the Preservation of his Majesty's Person, Liberty, Property, and the Protestant Religion." He was brought to trial for a libel, before Recorder Jeffreys and Chief Justice Scroggs who instructed the jury they were only to inquire _if Harris sold the book_, and if so, find him "guilty." It was for the court to determine what was a libel. He was fined five hundred pounds and placed in the pillory; the Chief Justice wished that he might be also whipped.[88] [Footnote 88: 7 St. Tr. 925.] 7. The same year Henry Carr was brought to trial. He published a periodical--"the Weekly Packet of advice from Rome, or the History of Popery"--hostile to Romanism. Before the case came to court, Scroggs prohibited the publication on his own authority. Mr. Carr was prosecuted for a libel before the same authority, and of course found guilty. The character of that court also was judgment against natural right. Jane Curtis and other women were in like manner punished for speaking or publishing words against the same "great judge."[89] And it was held to be a "misdemeanor" to publish a book reflecting on the justice of the nation--the truer the book the worse the libel! It was "obstructing an officer," and of course it was a greater offence to "obstruct" him with Justice and Truth than with wrong and lies. The greater the justice of the act the more dangerous the "crime!" If the language did not hit any one person it was "malice against all mankind." [Footnote 89: 7 St. Tr. 1111, 959; 4 Parl. Hist. 1274.] 8. In 1684 Sir Samuel Barnardiston was brought to trial charged with a "High Misdemeanor." He had written three private letters to be sent--it was alleged--by post to his friend, also a private man. The letters do not appear designed for any further publication or use; they related to matters of news, the events of the day and comments thereon, and spoke in praise of Algernon Sidney and Lord Russell who were so wickedly beheaded about the time the letters were written. It would require a microscopic eye to detect any evil lurking there. Jeffreys presided at the trial, and told the jury:-- "The letters are _factious, seditious, and malicious letters, and as base as the worst of mankind could ever have invented_." "And if he be guilty of it--the greater the man is the greater the crime, and the more understanding he has, the more malicious he seems to be; for your little ordinary sort of people, that are of common mean understanding, they may be wheedled and drawn in, and surprised into such things; but men of a public figure and of some value in the world that have been taken to be men of the greatest interest and reputation in a party, it cannot be thought a hidden surprise upon them; no, it is a work of time and thought, it is a thing fixed in his very nature, and it _shows so much venom as would make one think the whole mass of his blood were corrupt_." "Here is the matter he is now accused of, and here is in it malice against the king, malice against the government, malice against both Church and State, malice against any man that bears any share in the government, indeed malice against all mankind that are not of the same persuasion with these bloody miscreants." "Here is ... the sainting of two horrid conspirators! Here is the Lord Russell sainted, that blessed martyr; Lord Russell, that good man, that excellent Protestant, he is lamented! And here is Mr. Sidney sainted, what an extraordinary man he was! Yes, surely he was a very good man--and it is a shame to think that such bloody miscreants should be sainted and lamented who had any hand in that horrid murder [the execution of Charles I.] and treason ... who could confidently bless God for their being engaged in that good cause (as they call it) which was the rebellion which brought that blessed martyr to his death. It is high time for all mankind that have any Christianity, or fear of Heaven or Hell, to bestir themselves, to rid the nation of such caterpillars, such monsters of villany as those are!" Of course the packed jury found him guilty; he was fined £10,000.[90] [Footnote 90: 7 St. Tr. 1333.] Gentlemen of the Jury, such judges, with such kings and cabinets, have repeatedly brought the dearest rights of mankind into imminent peril. Sad indeed is the condition of a nation where Thought is not free, where the lips are sewed together, and the press is chained! Yet the evil which has ruined Spain and made an Asia Minor of Papal Italy, once threatened England. Nay, Gentlemen of the Jury, it required the greatest efforts of her noblest sons to vindicate for you and me the right to print, to speak, to think. Milton's "Speech for the Liberty of unlicensed Printing" is one monument of the warfare which lasted from Wicliffe to Thomas Carlyle. But other monuments are the fines and imprisonment, the exile and the beheading of men and women! Words are "sedition," "rebellion," "treason;" nay, even now at least in New England, a true word is a "Misdemeanor," it is "obstructing an officer." At how great cost has our modern liberty of speech been purchased! Answer John Lilburne, answer William Prynn, and Selden, and Eliot, and Hampden, and the other noble men who ----"in the public breach devoted stood, And for their country's cause were prodigal of blood." Answer Fox and Bunyan, and Penn and all the host of Baptists, Puritans, Quakers, martyrs, and confessors--it is by your stripes that we are healed! Healed! are we healed? Ask the court if it be not a "misdemeanor" to say so! A despotic government hates implacably the freedom of the press. In 1680 the Lord Chief Justice of England declared the opinion of the twelve judges "indeed all subscribe that to _print or publish any news-books, or pamphlets of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace_, and they may be proceeded against by law for an illegal thing." "And that is for a public notice to all people, and especially printers and booksellers, that _they ought to print no book or pamphlet of news whatsoever without authority;" "they shall be punished if they do it without authority_, though there is nothing reflecting on the government."[91] Judge Scroggs was right--it was "resisting an officer," at least "obstructing" him in his wickedness. In England, says Lord Campbell, the name and family of Scroggs are both extinct. So much the worse for you and me, Gentlemen. The Scroggses came over to America; they settled in Massachusetts, they thrive famously in Boston; only the name is changed. [Footnote 91: 7 St. Tr. 1127.] In 1731 Sir Philip Yorke, attorney-general, solemnly declared that an editor is "_not to publish any thing reflecting on the character and reputation and administration of his Majesty or his Ministers_;" "if he breaks that law, or exceeds that liberty of the press he is to _be punished for it_." Where did he get his law--in the third year of Edward I., in A.D. 1275! But that statute of the Dark Ages was held good law in 1731; and it seems to be thought good law in 1855! And the attorney who affirmed the atrocious principle, soon became Chief Justice, a "consummate judge," a Peer, Lord Hardwicke, and Lord Chancellor![92] Lord Mansfield had not a much higher opinion of the liberty of the press; indeed, in all libel cases, he assumed it was exclusively the function of the judges to determine whether the words published contained malicious or seditious matter, the jury were only to find the fact of publication.[93] Thus the party in power with their Loughboroughs, their Thurlows, their Jeffreys, their Scroggs--shall I add also American names--are the exclusive judges as to what shall be published relating to the party in power--their Loughboroughs, their Thurlows, their Jeffreys and their Scroggs, or their analogous American names! It was the free press of England--Elizabeth invoked it--which drove back the "invincible Armada;" this which stayed the tide of Papal despotism; this which dyked the tyranny of Louis XIV. out from Holland. Aye, it was this which the Stuarts, with their host of attendants, sought to break down and annihilate for ever;[94] which Thurlow and Mansfield so formidably attacked, and which now in America--but the American aspect of the matter must not now be looked in the face. [Footnote 92: 17 St. Tr. 674; 5 Campbell, 57; Hildreth's Despotism, 199.] [Footnote 93: 20 St. Tr. 900. But see 28 St. Tr. 595, and 16 Parl. Hist. 1211.] [Footnote 94: For the frequency of trials for words spoken in Charles II.'s reign of terror, see the extracts from Narcissus Luttrel's Brief Historical Relation, 10 St. Tr. 125.] * * * * * But spite of all these impediments in the way of liberty, the voice of humanity could not be forever silenced. Now and then a virtuous and high-minded judge appeared in office--like Hale or Holt, Camden or Erskine. Even in the worst times there were noble men who lifted up their voices. Let me select two examples from men not famous, but whose names, borne by other persons, are still familiar to this court. In 1627 Sir Robert Phillips, member for Somersetshire, in his place in Parliament, thus spoke against the advance of despotism:[95]-- [Footnote 95: 1 Rushworth, 502.] "I read of a custom among the old Romans, that once every year they had a solemn feast for their slaves; at which they had liberty, without exception, to speak what they would, thereby to ease their afflicted minds; which being finished, they severally returned to their former servitude. This may, with some resemblance and distinction, well set forth our present state; where now, after the revolution of some time, and grievous sufferance of many violent oppressions, we have, as those slaves had, a day of liberty of speech; but shall not, I trust, be hereafter slaves, for we are free: yet what new illegal proceedings our estates and persons have suffered under, my heart yearns to think, my tongue falters to utter. They have been well represented by divers worthy gentlemen before me; yet one grievance, and the main one, as I conceive, hath not been touched, which is our Religion: religion, Mr. Speaker, made vendible by commission, and men, for pecuniary annual rates, dispensed withal; Judgments of law against our liberty there have been three; each latter stepping forwarder than the former, upon the Rights of the Subject; aiming, in the end, to tread and trample underfoot our law, and that even in the form of law." "The first was the Judgment of the Postnati, (the Scots,) ... The second was the Judgment upon Impositions, in the Exchequer Court by the barons; which hath been the source and fountain of many bitter waters of affliction unto our merchants." "The third was that fatal late Judgment against the Liberty of the Subject imprisoned by the king, argued and pronounced but by one judge alone." "I can live, although another who has no right be put to live with me; nay, I can live although I pay excises and impositions more than I do; but to have my liberty, which is the soul of my life, taken from me by power; and to have my body pent up in a gaol, without remedy by law, and to be so adjudged: O improvident ancestors! O unwise forefathers! To be so curious in providing for the quiet possession of our lands, and the liberties of Parliament; and to neglect our persons and bodies, and to let them lie in prison, and that _durante bene placito_, remediless! If this be law, why do we talk of liberties? Why do we trouble ourselves with a dispute about law, franchises, property of goods, and the like? What may any man call his own, if not the Liberty of his Person? I am weary of treading these ways."[96] [Footnote 96: 2 Parl. Hist. 232. See also 441, 471. He had been thrown into the Tower by James in 1624. Cabbala (3d Ed.), 311.] In 1641 Sir Philip Parker, Knight of the Shire for Suffolk, in his place in Parliament, thus spoke:-- "The cries of the people have come up to me; the voice of the whole nation tingles in my ears." "'Tis true, I confess, we have tormented ourselves with daily troubles and vexations, and have been very solicitous for the welfare of the Commonwealth; but what have we performed, what have we perfected? Mr. Speaker, excuse my zeal in this case; for my mouth cannot imprison what my mind intends to let out; neither can my tongue conceal what my heart desires to promulge. Behold the Archbishop [Laud], that great incendiary of this kingdom, lies now like a firebrand raked up in the embers; but if ever he chance to blaze again I am afraid that what heretofore he had but in a spark, he will burn down to the ground in a full flame. Wherefore let us begin, for the kingdom is pregnant with expectation on this point. I confess there are many more delinquents, for the judges and other knights walk _in querpo_; but they are only thunderbolts forged in Canterbury's fire."[97] [Footnote 97: Parl. Hist. 867.] Six of the wicked judges were soon brought to trial.[98] [Footnote 98: 1 Rushworth, 502.] * * * * * This same threefold experiment of despotism which was attempted in England, was tried also in America by the same tyrannical hand. Here, also, the encroaching power put creatures of its arbitrary will in judicial offices; they then by perverting the laws, punished the patriots, and next proceeded to destroy the best institutions of the land itself. Here I shall take but a few examples, selected from the colonial history of our own New England. After capturing the great fortress of freedom at home, by taking away the charter of London, Charles proceeded to destroy the freedom of the colonies; the Charter of Massachusetts was wrested from us on a _quo warranto_ in 1683,[99] and the colony lay at the feet of the monarch. In privy council it had already been determined that our rights should be swept into the hands of some greedy official from the court.[100] In 1686 James II. sent Sir Edmund Andros to New England as a "Commissioner" to destroy the liberty of the people. He came to Boston in the "Kingfisher, a fifty gun ship," and brought two companies of British soldiers, the first ever stationed in this town to dragoon the people into submission to an unrighteous law. Edward Randolph, the most determined enemy of the colony, greedily caressing the despotic hands that fed him, was his chief coadjutor and assistant, his secretary, in that wicked work. Andros was authorized to appoint his own council, and with their consent enact laws, levy taxes, to organize and command the militia. He was to enforce the hateful "Acts of Trade." He appointed a council to suit the purpose of his royal master, to whom no opposition was allowed. Dudley, the new Chief Justice, told the people who appealed to Magna Charta, "they must not think the privileges of Englishmen would follow them to the end of the world." Episcopacy was introduced; no marriages were to "be allowed lawful but such as were made by the minister of the Church of England." Accordingly, all must come to Boston to be married, for there was no Episcopal minister out of its limits. It was proposed that the Puritan Churches should pay the Episcopal salary, and the Congregational worship be prohibited. He threatened to punish any man "who gave two pence" toward the support of a Non-conformist minister. All fees to officers of the new government were made exorbitantly great. Only one Probate office was allowed in the Province, that was in Boston; and one of the creatures of despotic power was, prophetically, put in it. Andros altered the old form of oaths, and made the process of the courts to suit himself. [Footnote 99: See the steps of the process in 1 Hutchinson, (Salem, 1795,) 297; 8 St. Tr. 1068, note.] [Footnote 100: Barillon to Louis XIV. in Fox's Appendix, p. vii., _et seq._ In 1685 Halifax, who had been friendly to the rights of the colonies, was dismissed from his office; Sunderland, their enemy, had a pension from Louis XIV. of £5,000 or £6,000 a year; p. cxxvii., cxxx. _et seq._, cxliii., cxlviii. Not the last instance of a high functionary pensioned by a foreign hand!] He sought to wrest the charters from the Colonies; that of Rhode Island fell into his hands; Connecticut escaped by a "miracle:" "The Charter-Oak--it was the tree That saved our sacred Liberty." The Charter government of Plymouth was suspended. Massachusetts was put under arbitrary despotism. Towns were forbidden to meet, except for the choice of officers; there must be no deliberation; "discussion must be suppressed." He was to levy all the taxes; he assessed a penny in the pound in all the towns. Rev. John Wise, one of the ministers of Ipswich, advised the people to resist the tax. "Democracy," said he, "is Christ's government in Church and State; we have a good God and a good king; we shall do well to stand to our privileges." One of the Council said, "_You have no privileges left you, but not to be sold as slaves._" Even that was not likely to last long. The town of Ipswich refused to pay the tax, because invalid; the governor having no authority to tax the people: "they will petition the King for liberty of an assembly before they make any rates." The minister and five others were arrested; they had "obstructed an officer." The Rev. Mr. Wise was guiltiest of all; he did it with a word, an idea. They were brought to Boston, and thrown into jail, "for contempt and high misdemeanors." They claimed the _habeas corpus_; Chief Justice Dudley refused it, on the ground that it did not extend to America! They were tried before a packed jury, and such a court as James II. was delighted to honor. The patriots plead the laws of England and Magna Charta. It was all in vain. "I am glad," said the judge to his packed jury, "there be so many worthy gentlemen of the jury, so capable to do the king service; and we expect a good verdict from you, seeing the matter hath been so sufficiently proved against the _criminals_." The jury of course found them guilty. They were fined from £15 to £50 a piece. The whole cost to the six was over £400. "It is not for his majesty's interest that you should thrive," said one of those petty tyrants,--a tide-water of despotism.[101] [Footnote 101: 1 Hutch. 316; 2 Hildreth, Hist. 108; 2 Bancroft, 425; Washburn, Judicial Hist. of Mass. 105; Drake's Boston, ch. L.] Andros denied the colonial title to lands, claiming that as the charter was declared void, all the lands held under its authority escheated to the crown,--"The calf died in the cow's belly." A deed of purchase from the Indians was "worth no more than the scratch of a bear's paw." "The men of Massachusetts did much quote Lord Coke" for their titles: but Rev. John Higginson, minister of the first church in Salem, the son of the first minister ever ordained in New England,--and ancestor of this noble-hearted man [Rev. T.W. Higginson] who is now also indicted for a "misdemeanor,"--found other laws for their claim, and insisted on the citizens' just and natural right to the lands they had reclaimed from the wilderness.[102] Andros said, "You are either subjects, or else you are rebels;" and in either case, their lands would be forfeit. [Footnote 102: 1 Felt's Salem, 24; 2 Ib. 542; Felt's Ipswich, 123, _et seq._; Gage's Rowley, 157, _et seq._; Sullivan's Land Titles, 54.] Andros hated freedom of speech and of thought. He was to allow no unlicensed printing. Randolph was appointed censor of the press, and ordered the printer to publish nothing without his approbation, nor "any almanac whatever." There must be but one town meeting in a year, and no "deliberation" at that; no "agitation," no discussion of grievances. There must be no preaching on the acts of the government. Rev. Dr. Increase Mather, one of the ablest men in the Colonies, was the special object of his hate. Randolph advised the authorities to forbid any non-conformist minister to land in New England without the special consent of the governor, and that he should restrain such as he saw fit to silence. The advice was not lost on such willing ears. John Gold, of Topsfield, was tried for "treasonable words," and fined fifty pounds--a great deal more at Topsfield in 1687, than "three hundred dollars" is now in Boston. Rev. Increase Mather had opposed the surrender of the Charter of Massachusetts, and published his reasons; but with such prudence, for he was careful how he "evinced an express liking" for justice, that it was difficult to take hold of him. So the friends of government forged a letter with his name, to a person in Amsterdam. Randolph showed the letter to persons whom he wished to prejudice against the alleged writer. When Mr. Mather learned the facts, he wrote a letter to a friend, clearing himself, and charging the forgery on Randolph or his brother. Randolph brought his action for a libel, claiming £500 damages. But it came to nothing--then. Now times are changed! Col. Pynchon, of Springfield, one of the officers in this new state of things, was empowered to bind over all persons suspected of riots, "outrageous or abusive _reflecting words and speeches against the government_." "The spirit of justice was banished from the courts that bore the name."[103] [Footnote 103: Hutch. 327; Washburn, ibid.] But notwithstanding the attempt to stifle speech, a great tall minister at Rowley, called Andros "a wicked man!" For that offence he was seized and put in prison! He, also, like Higginson, is represented in this court by one of his own name; and the same inextinguishable religious fire which burned in the bosom of Robert in Old England, and from Samuel in New England flashed into the commissioned face of Andros, now lightens at this bench from the eyes of WENDELL PHILLIPS, who confers new glory on his much-honored ancestor. * * * * * Gentlemen of the Jury, you know how this wickedness was brought to an end. If the courts would not decree Justice, there was a rougher way of reaching it, and having it done. Civil war, revolution by violence, came in place of the simple forms of equity, which the judges had set at nought. William of Orange, a most valiant son-in-law, drove the foul tyrant of Old England from that Island, where the Stuarts have ever since been only "Pretenders;" and on the 19th of April, 1689, the people of Massachusetts had the tyrant of New England put solemnly in jail! We were rid of that functionary for ever, and all such "commissioners" have been held odious in New England ever since the days of Andros. Eighty-six years later came another 19th of April, also famous. Well said Secretary Randolph, "Andros has to do with a perverse people,"--they would not bow to such tyranny in 1689. But he afterwards became a quite acceptable governor in Virginia,--where, I doubt not, he has descendants in African bondage at this day. Catholic James II. sought to establish arbitrary power in America, as in England, by his prerogative--the Omnipotence of the King; he failed; the high-handed despotism of the Stuarts went to the ground. The next attempt at the same thing was by the legislature--the Omnipotence of Parliament--for a several-headed despotism took the place of the old, and ruled at home with milder sway. It tried its hand in America; there were no more requisitions from a king hostile to the Colonies, but acts of Parliament took their place. After the French power in North America had given way, the British government sought to tame down and break in the sturdy son, who had grown up in the woods so big and rough, as obstinate as his father. Here are three measures of subjugation, all flowing from the same fountain of Principle--vicarious government by a feudal superior. 1. All the chief colonial officers were to be appointed by the king, to hold office during his pleasure, to receive their pay from him. Such was the tenure of the executive officers who had a veto on all colonial legislation, and of the judicial officers. Thus the power of making and administering the laws fell from the people distributed everywhere, into the hands of the distant government centralized in the King. 2. A standing army of British soldiers must be kept in the Colonies to overawe the people, and enforce the laws thus made and administered. 3. A revenue was to be raised from the Colonies themselves--from which the King would pay his officers and provide for his army that enforced his laws. The eagle is to feather the arrow which shoots him in mid heaven. Thus law was a threefold cord wherewith to bind the strong Puritan. But his eyes were not put out--not then. Blindness came at a later day--when he had laid his head in the lap of a not attractive Delilah. With such judges and governors, backed by a standing army of hirelings--how soon would her liberty go down, and the Anglo-American States resemble Spanish America! In 1760 Francis Bernard was made governor of Massachusetts, and thus officially put at the head of the Judiciary, a man wholly devoted to the Crown, expecting to be made a baronet! He did not wish an annual election of councillors, but wanted the sovereign power to enforce its decrees by violent measures. Thus Thomas Hutchinson was made Chief Justice in 1760, and afterwards Lieutenant-Governor,--continually hostile to the constitution of his native land. Thus Andrew Oliver--"Governor Oliver," "hungry for office and power," was appointed Secretary, Commissioner of Stamps and Lieutenant-Governor; and Peter Oliver--"Judge Oliver"--though not bred a lawyer, was made Chief Justice, the man who refused to receive his salary from the treasury of Massachusetts, preferring the money of the crown which owned him. In the revolutionary times of the _five Judges of Massachusetts four were Tories_! Accordingly, when the Stamp Act was passed--22d March, 1765--there were Judicial officers in the Colonies ready to declare it "constitutional;" executive magistrates ready to carry out any measures intrusted to them. "I will cram the stamps down their throat with the end of my sword," said an officer at New York. Governor Bernard wanted soldiers sent to Boston to enforce submission; so did Hutchinson and "Governor Oliver." The Governor of New York thought, "if _Judges be sent from England_, with an able attorney-general and solicitor-general to _make examples of some very few_, the Colony will remain quiet."[104] [Footnote 104: 5 Bancroft, 358.] In 1768 John Hancock was arrested at Boston--for a "misdemeanor;" I suppose, "obstructing an officer," or some such offence.[105] The government long sought to procure indictments against James Otis--who was so busy in fencing out despotism--Samuel Adams, and several other leading friends of the colony. But I suppose the judge did not succeed in getting his brother-in-law put on the grand-jury, and so the scheme fell through. No indictment for that "misdemeanor" then. Boston had the right men to do any thing for the crown, but they did not contrive to get upon the grand-jury. [Footnote 105: 6 Bancroft, 213.] The King, it was George III., in his parliament, spoke of the Patriots of Boston, as "those turbulent and seditious persons." In the House of Commons, Stanley called Boston an "insolent town;" its inhabitants "must be treated as aliens;" its "charter and laws must be so changed as to give the King the appointment of the Council, and to the _sheriffs the sole power of returning jurors_;" then the Stamp Act could be carried out, and a revenue raised without the consent of the people. The plan was admirably laid; an excellent counsel! Suppose, as a pure conjecture, an hypothesis of illustration--that there were in Boston a fugitive slave bill court, eager to kidnap men and so gain further advancement from the slave power, which alone distributes the federal offices; suppose the court should appoint its creatures, relatives, nay, its uterine brother--its brother in birth--as fugitive slave bill commissioners to hunt men; and then should get its matrimonial brother--its brother-in-law--on the grand-jury to indict all who resisted the fugitive slave bill! You see, gentlemen, what an admirable opportunity there would be to accomplish most manifold and atrocious wickedness. This supposed case exactly describes what was contemplated by the British authorities in the last century! Only, Gentlemen, it was so unlucky as not to succeed; nay, Gentlemen, as to fail--then! Such accidents will happen in the best of histories! It was moved in Parliament to address the king "to bring to condign punishment" such men as Otis and Adams and Hancock. Chief Justice Hutchinson declared Samuel Adams "_the greatest incendiary in the king's dominions_." Hutchinson was right for once. Samuel Adams lit a fire which will burn on Boston Common on the Fourth day of next July, Gentlemen, and on many other commons besides Boston. Aye, in the heart of many million men--and keep on burning long after Hutchinson ceases to be remembered with hate, and Adams with love. "The greatest incendiary!" so he was. Hutchinson also thought there must be "an Abridgment of what are called English Liberties," doubtless the liberty of speaking in Faneuil Hall, and other meeting-houses was one "of what are called English Liberties" that needed speedy abridgment. He wished the law of treason to be extended so that it might catch all the patriots of Boston by the neck. He thought it treasonable to deny the authority of Parliament.[106] Men suspected of "misdemeanors" were to be sent to England for trial! What a "trial" it would have been--Hancock and Adams in Westminster Hall with a jury packed by the government; Thurlow acting as Attorney-General, and another Thurlow growling on the bench and expecting further office as pay for fresh injustice! Truly there would have been an "abridgment of English Liberties." Gentlemen of the Jury, Mr. Phillips and Mr. Higginson in this case are charged with "obstructing an officer." Suppose they were sent to South Carolina to be tried by a jury of Slaveholders, or still worse, without change of place, to be tried by a court deadly hostile to freedom,--wresting law and perverting justice and "enlarging testimony," personally inimical to these gentlemen; suppose that the Slave-hunter whose "process" was alleged to be resisted, was kinsman to the court, and the judge had a near relation put on the jury--what opportunity would there be for justice; what expectation of it? Gentlemen of the Jury, that is the state of things which the despots of England wanted to bring about by sending Hancock and Adams over seas for trial! Bernard, Oliver, and Hutchinson were busy in getting evidence against the Patriots of New England, especially against Adams. Affidavits were sent out to England to prove that he was a fit subject to be transported for "trial" there. And an old statute was found from the enlightened reign of Henry VIII. authorizing that mode of trial in case of such "misdemeanor." Commissary Chew wished that two thirds of the lawyers and printers were shipped off to Africa "for at least seven years." Edes and Gill, patriotic printers in Boston, and "all the authors of numberless treasonable and seditious writings," were to go with them.[107] They were all guilty, very guilty! Gentlemen of the Jury, they committed "misdemeanors," they "obstructed officers," they resisted the process of despotism! But alas-- "The Dog it was that died." [Footnote 106: 6 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, _et al._] [Footnote 107: 6 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, _et al._] Edes and Gill never saw Africa; the patriotic lawyers and printers made no reluctant voyage to England. "The Dog it was that died." Bernard, Hutchinson, Oliver, and their coadjutors went over the seas for punishment after being tried at home by a Law older than the statute of Henry VIII.; a law not yet repealed, Gentlemen, the Higher Law which God wrote ineffaceably in the hearts of mankind; and indignant America pronounced sentence--Tories, Traitors! Commissary Chew learned a lesson at Saratoga in 1777. And the Franklins, the Mayhews, the Hancocks, the Adamses, they also were tried at home, and not found wanting; and the verdict! Gentlemen of the Jury, you know what verdict America has pronounced on these men and their kinsfolk! There is only one spot in the United States where the Hutchinsons, the Olivers, the Bernards are honored,--that is where the Adamses, the Hancocks, the Mayhews, and the Franklins, with the principles of justice they gave their lives to, are held in contempt! Where is the one spot, that speck of foreign dirt in the clean American garden? It is where the Democratic Herod and the Whig Pilate are made friends that they may crucify the Son of Man, the Desire of all nations, the Spirit of Humanity--it is the court of the Fugitive Slave Bill judges, the Gabbatha of the Kidnappers. Look there! In 1765 it was too late to conquer America. What Andros and Randolph could accomplish in 1686 with their sixty soldiers, could not be done in 1768 with all the red coats Britain could send out: nor in 1778 with all the Hessians she could purchase. The 19th of April, 1689, foretold another 19th of April--as that many to-morrows after to-day! In the House of Lords Camden and Pitt thought Parliament not omnipotent.[108] Samuel Adams declared "Acts of Parliament against natural equity are void;" prayed that "Boston might become a Christian Sparta," and looked to the Law of an Omnipotence somewhat higher than a king or a court. He not only had Justice, but also the People on his side. What came of that last attempt of the last king of New England to establish a despotism here? The same, Gentlemen, which will ultimately come of all such attempts. [Footnote 108: 16 Parl. Hist. 168, 195, 658.] * * * * * Gentlemen of the Jury, there is one great obstacle which despotism has found in Anglo-Saxon lands, steadily opposing its steady attempts to destroy the liberties of the People. It is easy for the controlling power, which represents the Centripetal Tendency of the Nation, to place its corrupt and servile creatures in judicial offices, vested with power to fine, to imprison, and to kill; it is then easy for them to determine on the destruction of all such friends of Justice and Humanity as represent the Centrifugal Tendency of the Nation; and with such judicial instruments it is not difficult to wrest and pervert law in order to crush the Patriots, and construct a word into "Treason," or "evincing express approbation" into a "Misdemeanor," "resisting an officer." And if the final decision rested with such a court, it would be exceeding easy to make way with any man whom the judge's private malignity or the public vengeance of his master, wished to smite and kill. But in the Anglo-Saxon people there is one institution, old, venerable, and well-beloved, which has stood for two thousand years, the great Fortress of Freedom. Thank God, Gentlemen, it still stands. Neither British Kings nor American Slave-drivers have yet brought it to the ground. Of this I must now say a word. III. OF THE GREAT SAFEGUARD WHICH HAS BEEN FOUND SERVICEABLE IN PROTECTING DEMOCRATIC INSTITUTIONS AND THE RIGHTS OF MAN THEY ARE DESIGNED TO DEFEND.--OF THE TRIAL BY JURY. This is an invaluable protection against two classes of foes to the welfare of mankind. 1. Against such as would commit offences upon the property or persons of men, without law and contrary to the form of law,--against common criminals of all denominations. Against such it is a sword--to resist and punish. 2. Against such as would commit offences upon the property or persons of men, with the form of law and by means of its machinery,--against unjust legislators, corrupt Judges, and wicked magistrates; against such it is a shield defending the public head. In all the States of Anglo-Saxon origin there are two great popular institutions--Democratic Legislation and Democratic Administration of Law. In the process of its historical development the first has come to the representative form of democratic legislation,--popular law-making by a body of sworn delegates met in an Assembly, local or federal, subject to a constitution, written or only traditional, which is the People's Power of Attorney, authorizing them to do certain matters and things pertinent to law-making. These are a Jury of general Law-makers. In its process of historical development, the second has also come to a representative form, that of democratic application of law, popular law-applying, by a body of sworn delegates, that is a Court, subject to a constitution and laws, written or only traditional, which are the People's Power of Attorney authorizing them to do certain matters and things pertinent to law-applying. These are a Jury of special Law-appliers. Neither of them as yet has reached its perfect and ultimate form; both are still in a state of transition. These two are the most valuable institutional safeguards against unorganized selfishness in the community,--against thieves, robbers, murderers, traitors, and the like; against the organized selfishness which gets into places of delegated power, and would misuse the Form of law so as to prevent the People from attaining the Purpose of law. There is also a body of men intermediate between the two,--the Law-Explainers, the Judges. Speaking theoretically they are not ultimately either Law-makers or Law-appliers, yet practically, in their legitimate function, they certainly have much to do with both the making and applying of laws. For it is their business, not only to preside at all trials, and determine many subordinate questions of mere form to expedite the process, but also from the whole mass of laws, oral or written, statutes and customs, to select such particular laws as they think require special attention,--this is like the work of law-makers; and also, in their charges to the grand and petty Juries, to suggest the execution thereof in such cases as the times may bring,--this like the work of the law-appliers. The good judge continually modifies the laws of his country to the advantage of mankind. He leaves bad statutes, which aim at or would promote injustice, to sleep till themselves become obsolete, or parries their insidious thrusts at humanity; he selects good statutes which enact natural Justice into positive law; and mixes his own fresh instincts of humanity with the traditional institutions of the age. All this his official function requires of him--for his oath to keep and administer the laws binds him to look to the Purpose of Law--which is the Eternal Justice of God,--as well as to each special statute. Besides, after the Jury declares a man guilty, the Judge has the power to fix the quantity and sometimes the quality of his punishment. And the discretion of a great noble man will advance humanity. In this way a good Judge may do a great service to mankind, and correct the mistakes, or repel the injustice of the ultimate makers and appliers of law, and supply their defects. Thus in England those eminent Judges, Hale, Somers, Hobart, Holt, Camden, Mansfield, and Brougham, have done large service to mankind. Each had his personal and official faults, some of them great and glaring faults of both kinds, but each in his way helped enact natural Justice into positive law, and so to promote the only legitimate Purpose of human legislation, securing Natural Rights to all men. To such Judges mankind owes a quite considerable debt. But in America the Judge has an additional function; he is to determine the Constitutionality of a law. For while the British King and Parliament claim to be legislatively omnipotent, supreme, the Ultimate human source of law, the Living Constitution of the realm, and therefore themselves the only Norm of law,--howsoever ill-founded the claim may be,--in America it is the People, not their elected servants, who are the Ultimate human source of law, the Supreme Legislative power. Accordingly the People have prepared a written Constitution, a Power of Attorney authorizing their servants to do certain matters and things relating to the government of the nation. This constitution is the human Norm of law for all the servants of the people. So in administering law the Judge is to ask, Is the statute constitutional? does it square with the Norm of law which the People have laid down; or have the legislative servants exceeded their Power of Attorney, and done matters and things which they were not empowered to do? In deciding this question, the Judge is to consider not merely the Provisional Means which the Constitution designates, but also the Ultimate Purpose thereof, the Justice and Liberty which, as its preamble declares, it expressly aims at, and which are also the ideal End of all sound legislation. There is no country in the world where a great man has so noble a place and opportunity to serve mankind as in America. But a wicked Judge, Gentlemen, may do great harm to mankind, as I have already most abundantly shown. For we have inherited a great mass of laws,--customary or statutory; the legislature repeals, modifies, or adds to them; the Judge is to expound them, and suggest their application to each special case. The Jury is to apply or refuse to apply the Judge's "law." In all old countries, some of these laws have come from a barbarous, perhaps even from a savage period; some are the work of tyrants who wrought cruelly for their own advantage, not justly, or for the good of mankind; some have been made in haste and heat, the legislature intending to do an unjust thing. Now an unjust Judge has great power to select wicked statutes, customs, or decisions; and in no country has he more power for evil than in the federal courts of the United States. For as in England, when the King-power makes a wicked law, the Judge, who is himself made by that same power, may declare it just, and execute the heinous thing; so in America, when the Slave power enacts a wicked statute, contrary to the purpose of the constitution and to the natural justice of God, the Judge, who is the creature of that same power, may declare it constitutional and binding on all the People who made the constitution as their Power of Attorney. Thus all the value of the constitution to check despotism is destroyed, and the Fortress of Freedom is betrayed into the hands of the enemies of liberty! But barbarous laws must not be applied in a civilized age; nor unjust laws enforced by righteous men. While left unrepealed, a fair and conscientious Jury will never do injustice, though a particular statute or custom demand it, and a wicked Judge insist upon the wrong; for they feel the moral instinct of human nature, and look not merely to the letter of a particular enactment, but also to the spirit and general purpose of law itself, which is justice between man and man. The wicked Judge, looking only to the power which raised him to his place, and may lift him higher still,--not to that other Hand which is over all,--or consulting his own meanness of nature, selects the wicked laws, and makes a wicked application thereof. Thus in America, under plea of serving the people, he can work most hideous wrong. Besides, the Judges are lawyers, with the technical training of lawyers, with the disposition of character which comes from their special training and profession, and which marks the manners, the language and looks of a lawyer. They have the excellence of the lawyer, and also his defects. Commonly they are learned in their profession, acute and sharp, circumspect, cautious, skilful in making nice technical distinctions, and strongly disposed to adhere to historical precedents on the side of arbitrary power, rather than to obey the instinctive promptings of the moral sense in their own consciousness. Nay, it seems sometimes as if the moral sense became extinct, and the legal letter took the place of the spirit of Justice which gives life to the People. So they look to the special statute, its technical expositions and applications, but not to Justice, the ultimate Purpose of human law; they preserve the means and miss the end, put up the bars in the nicest fashion, and let the cattle perish in their pen. Like the nurse in the fable, they pour out the baby, and carefully cherish the wooden bath-tub! The Letter of the statute is the Idol of the Judicial Den, whereunto the worshipper offers sacrifices of human blood. The late Chief Justice Parker, one of the most humane and estimable men, told the Jury they _had nothing to do with the harshness of the statute_! but must execute a law, however cruel and unjust, because somebody had made it a law! How often Juries refuse to obey the statute and by its means to do a manifest injustice; but how rarely does a Judge turn off from the wickedness of the statute to do Justice, the great Purpose of human law and human life! Gentlemen, I once knew a democratic judge--a man with a noble mind, and a woman's nicer sense of right--who told the Jury, "Such is the law, such the decisions; such would be its application to this particular case. But it is unjust;--it would do a manifest and outrageous wrong if thus applied. You as Jurors are to do Justice by the law, not injustice. _You will bring in a verdict according to your conscience._" They did so. Gentlemen, I should not dare tell you that Judge's name. It would greatly injure his reputation. God knows it--for there is a Higher Law. When the New York Convention assembled in 1846 to revise the constitution of that State, some powerful men therein felt the evil of having the Court of last Appeal consist wholly of lawyers. Mr. Ruggles thought the judges who reëxamine the decisions and pronounce the final judgment in disputed cases, and determine the constitutionality of laws, should be men who are "brought into direct contact with the people and their business." He wished that of the eight judges of this appellate Court, four should be Justices of the Supreme Court, and four more should be elected by the people on a general ballot, thus securing a popular element in that highest Court. By this popular element, representing the instinctive Justice of Humanity, he hoped to correct that evil tendency of professional men which leads them away "from the just conclusions of natural reason into the track of technical rules inapplicable to the circumstances of the case, and at variance with the nature and principles of our social and political institutions."[109] "Such judges," said another lawyer, "would retain more of the great general principles of moral justice, ... the impulses of natural equity, such as ... would knock off the rough corners of the common law and loosen the fetters of artificial and technical equity."[110] [Footnote 109: Debates in New York Convention, 371, _et al._] [Footnote 110: Jordan's Speech, _ibid._, 447, _et al._ See also Mr. Stow's Remarks, 473, and Mr. Stephens', 474, _et al._ Yet all these four speakers were lawyers.] Commonly in America, as in England, for judges the Federal Government appoints lawyers who have done some party service, or are willing to execute the designs of the great ruling Power, the Slaveholders, regardless alike of the interests of the People and the protestations of the Conscience of Mankind.[111] You know how Hardwicke and Thurlow got their office in England, how they filled it, and what additional recompense followed each added wickedness. Need I mention the name of Americans with a similar history? Gentlemen, I pass it by for the present. [Footnote 111: Hildreth's Despotism in America (1854), 263, _et al._] Still further, these judges thus appointed become familiar with fraud, violence, cruelty, selfishness,--refined or brutal,--which comes before them; they study the technicalities of the statutes, balance the scruples of advocates; they lose their fresh intuitions of justice, becoming more and more legal, less and less human, less natural and more technical; their eye is microscopic in its niceness of discrimination, microscopic also in its narrowness of range. They forget the universality of justice,--the End which laws should aim at; they direct their lynx-eyed attention to the speciality of the statutes which is only the Means, of no value save as conducing to that end. Their understanding is sharp as a mole's eye for the minute distinctions of the technicalities of their craft; but, as short-sighted as the mole, they cannot look at justice. So they come to acknowledge no obligation but the legal, and know no law except what is written in Black Letter on parchment, printed in statute-books, reported in decisions; the Law written by God on the soul of man they know not, only the statute and decision bound in pale sheepskin. In the logic of legal deduction--technical inference--they forget the intuition of conscience: not What is right? but What is law? is the question, and they pay the same deference to a wicked statute as a just one. So the true Mussulman values the absurdities of the Koran as much as its noblest wisdom and tenderest humanity. Such a man so appointed, so disciplined, will administer the law fairly enough in civil cases between party and party, where he has no special interest to give him a bias--for he cares not whether John Doe or Richard Roe gain the parcel of ground in litigation before him. But in criminal cases he leans to severity, not mercy; he suspects the People; he reverences the government. In political trials he never forgets the hand that feeds him,--Charles Stuart, George Guelph, or the Slave Power of America. These things being so, in such trials you see the exceeding value of the jury, who are not Office-holders, under obligation to the hand that feeds them; not Office-seekers, willing to prostitute their faculties to the service of some overmastering lust; not lawyers wonted to nice technicalities; not members of a class, with its special discipline and peculiar prejudices; but men with their moral instincts normally active, and unsophisticated humanity in their hearts. Hence the great value of the jury in criminal trials. Gentlemen, you are the jurors in this case, to decide between me and the government. Between the government and ME! no, Gentlemen, between the Fugitive Slave Bill and Humanity. You know the Function of the court--the manner of the Judges' appointment--the services they are expected to render in cases like this, the services they have already rendered. Let me speak of the Function of the Jury. To do that, I must say a few words of its Historical Development. I must make it very brief and sketchy. Here I shall point out six several steps in the successive development of popular Law-making and Law-applying. * * * * * 1. In the barbarous periods of the Teutonic Family,[112] it seems the "whole People" came together at certain regular seasons to transact the business of the nation. There was also a meeting of the inhabitants of each district or neighborhood at stated times,--a "regular meeting;" and sometimes a special meeting to provide for some emergency--a "called meeting." If one man had wronged another the matter was inquired into at those popular meetings. One man presided--chosen for the occasion. In the early age it appears he was a priest, afterwards a noble, or some distinguished man, selected on the spot. The whole people investigated the matter, made the law--often an _ex post facto_ law,--applied it to the special case, and on the spot administered the punishment--if corporeal, or decreed the recompense--if pecuniary. The majority carried the day. Thus at first the Body of People present on the occasion were the law-makers, the law-appliers, and law-executors. Each law was special--designed for the particular case in hand, retrospective for vengeance more than prospective for future welfare. [Footnote 112: By this term I mean all the nations with language akin to the German.] 2. Then in process of time, there came to be a body of laws--fixed and understood by the People. Partly, these came from the customs of the People, and represented past life already lived; but partly, also, from the decrees of the recognized authorities--theocratic, monarchic, aristocratic, democratic--representing the desire for a better life, a rule of conduct for the future. Then at their meetings, to punish an offender the people did not always make a new law, they simply used what they found already made. They inquired into the fact, the deed done, the law, and applied the general law to the special fact, made their decree and executed it. Thus extemporaneous Making of law for the particular case, gradually passed away, and was succeeded by the extemporaneous Declaration of the law previously made, and its Application to the matter in hand. 3. By and by it was found inconvenient for a multitude to assemble and make the laws, so a body of select men took a more special charge of that function. Sometimes a chief, or king, usurped this for himself; or men were chosen by the people, and took an oath for the faithful discharge of their trust. Thus came popular law-making by sworn delegates, representatives of the people, who had a certain special power of attorney, authorizing them to make laws. These might be Priests--as at the beginning; or Nobles of priestly stock, as at the next stage; or Military Chiefs--as in all times of violence; or powerful Private men,--summoned from the nation, of their own accord undertaking the task, or chosen by the various neighborhoods,--the whole process seems to have been irregular and uncertain, as indeed it must be amongst rude people. So at that time there were two sources of law-making. (1.) The unorganized People--the primary source, whose unconscious life flows in certain channels and establishes certain customs, rules of conduct, obeyed before they are decreed, without any formal enactment. These were laws _de facto_. (2.) The organized Delegates--priestly, kingly, nobilitary, or warlike--the secondary source. These made statute laws. As this was a self-conscious and organized body, having an object distinctly set before its mind and devising means for its purposes, it easily appropriated to itself the chief part of the business of law-making. Statute laws became more and more numerous and important; they were the principal--the customs were only subsidiary, laws _de Jure_, enacted before they are obeyed by the People. Still new customs continued to flow from the primitive source of legislation, the People, and of course took new forms to suit the conditions of national life. 4. Still the people came together to apply the laws--customary or enacted,--to the special cases which occurred. There were fixed periods when they assembled without notice given,--"regular law-days;" and if an emergency occurred, they were summoned on "extraordinary law-days." Here wrongs between party and party, and offences against the public, were set right by the "Country," the "Body of the county," that is, by the bulk of the population. The majority carried the day. 5. At length it was found inconvenient for so large a body to investigate each particular case, or to determine what cases should be presented for investigation. (1.) So this preliminary examination was delegated to a smaller body of men, sworn to discharge the trust faithfully, who made inquiry as to offences committed, and reported the criminals for trial to the full meeting, the actual "Body of the country." Here, then, is the first organized and sworn "Jury;" "the grand inquest;"--here is popular Indictment by delegates. (2.) Then it was found inconvenient for a large body--the whole country--to investigate the cases presented. Men were busy with their own work, and did not wish to appear and consume their time. So a smaller body of men was summoned to attend to any special case which was presented by the Grand Inquest. These also were sworn to do their duty. They were to try the men indicted. Here is Trial by sworn delegates, who represent the Body of the People. They were still called the "Country," as any spot of the Atlantic is the "Ocean." Here is the "Trial by Jury." They must be taken from the neighborhood of the parties concerned--for at this stage the jurors were also the witnesses, and other sworn witnesses were not then known. All the Jurors must concur in the vote of condemnation before the magistrate could hurt a hair of the accused's head. Still after the people had delegated their law-making to one body of sworn representatives, and the twofold function of law-applying, by Indictment and Trial, to other sworn representatives, there was yet a great concourse of people attending the court on the "law-days;" especially when important matters came up for adjudication; then the crowd of people took sides with Plaintiff or Defendant; with the authorities which accused, or with the man on trial, as the case might be. Sometimes, when the Jury acquitted, the people tore the suspected man to pieces; sometimes when the Jury condemned, they showed their indignation--nay, rescued the prisoner. For the old tradition of actual trial by the "Body of the Country" still prevailed. 6. At length the Jurors are no longer the witnesses in the case. Others testify before them, and on the evidence which is offered, the Grand-Jury indict or not, and the Trial Jury acquit or condemn. Then the Jurors are no longer taken from the immediate neighborhood of the party on trial, only from his district or county. But sworn witnesses from the neighborhood, depose to the facts. There is no longer a great concourse of people in the open air, but the trial is carried on in a small court house, yet with open doors, in the face of the people, _coram populo_--public opinion still influences the Jury. As most of the Jurors were unlearned men, not accustomed to intricate questions, it became necessary for the presiding judge, a man of nicer culture, to prepare rules of evidence which should prevent the matter from becoming too complicated for the rustic judgment. Thence came the curious and strange "rules of evidence" which prevail in all countries where trial by Jury is established, but are unknown in lands where the trial is conducted solely by experts, educated men. But as the mass of the people, as in America, become well informed, the old rules appear ridiculous, and will perish. The number of sworn judges varies in different tribes of the Teutonic family, but as twelve has long been a sacred number with the Anglo-Saxons, that was gradually fixed for the Jury. Twelve consenting voices are indispensable for the indictment or the condemnation. * * * * * Such is the form of the Jury as we find it at this day. The other officers have also undergone a change. So, Gentlemen, let me give you a brief sketch of the Historical Formation of the Function of the Judge in nations of the same ethnological origin. Here I shall mention four steps. 1. At the meetings of the people to make, apply, and execute the law, some one must preside to keep order, put the question, and declare the vote. He was the Moderator of the meeting. At first it would seem that some important man, a priest, or a noble, or some other wise, distinguished, or popular man, performed that function. The business over, he dropped into his private place again. A new one was chosen at each meeting. 2. If the former moderator had shown skill and aptness, he was chosen the next time; again and again; at length it was a matter of course that he should preside. He studied the matter, and became "expert in all the manners and customs of his nation." This happens in most of the New England towns, where the same man is Moderator at the town-meetings for many years in succession. Men love to walk in the path they have once trodden, even if not the shortest way to their end. 3. When the nation is organized more artificially and the laws chiefly proceed from the secondary source, the government,--elective or usurpatory--a judge is appointed by the central authority to visit the districts (counties) and assist at the administration of justice. As the law is now made by the distant delegates, the judge they send down declares and explains it to the people, for they have not made it as before directly, nor found it ready-made, an old inherited custom, but only receive it as the authorities send it down from the Capitol. The law is _written_--the officer can read while they have no copy of the law, or could not read it had they the book. Hence the necessity of a judge learned in the law. Still the people are to apply the written law or apply it not. Besides, the old customs remain, the unwritten laws of the people, which the judge does not understand so well as they. He represents the written law, the assembly the unwritten custom or tradition. The judge is appointed that he may please the central power; the people are only to satisfy such moral convictions as they have. There is often a conflict between the statute and the custom, a conflict of laws; and still more between the judge and the jury--a conflict in respect to the application of the law. 4. Then comes the critical period of the Trial by Jury. For the deputed judge seeks to enlarge his jurisdiction, to enforce his law, often against the customs and the consciences of the People, the jury, who only seek to enlarge Justice. He looks technically at the statute, the provisional Means of law, not at Justice the ultimate Purpose of law. To the "Country," the "Body of the People," or to the jury of inquest and of trial, he assumes not to suggest the law and its application, but absolutely to _dictate_ it to them. He claims the exclusive right to decide on the Law and its Application; the jury is only to determine the Fact--whether the accused did the deed charged or not. If the judge succeeds in this battle, then tyranny advances step by step; the jury is weakened; its original function is curtailed; certain classes of cases are taken from its jurisdiction; it becomes only the tool of the government, and finally is thrown aside. Popular law-making is gone; popular law-applying is also gone; local self-government disappears and one homogeneous centralized tyranny takes the place of the manifold Freedom of the people. So the trial by jury faded out of all the South-Teutonic people, and even from many regions of the German and Scandinavian North. But the Anglo-Saxon, mixing his blood with Danes and Normans, his fierce kinsfolk of the same family, has kept and improved this ancient institution. When King or Parliament made wicked laws, or appointed corrupt and cruel men for judges, the People have held this old ancestral shield between the tyrant and his victim. Often cloven through or thrust aside, the Saxon Briton never abandons this. The Puritan swam the Atlantic with this on his arm--and now all the Anglo-Saxon tribe reverences this defence as the Romans their twelve AONCILIA [Transcriber's Note: for 'AONCILIA' read 'ANCILIA'; see Errata], the mythic shield which "fell from Heaven."[113] [Footnote 113: In this brief sketch I do not refer to the authorities, but see, who will, the classic passages and proof-texts in the well-known works of Grimm, Rogge, Biener, Michelsen, Möser, Phillips, Eichhorn, Maurer, and others.] * * * * * After so much historic matter, Gentlemen, it is now easy to see what is-- THE FUNCTION OF THE JURY AT THIS TIME. Here I make three points. I. They are to decide the QUESTION OF FACT, the matter charged, and determine whether the accused did the deed alleged to be done. That is the first step--to determine the Fact. II. They are to decide the QUESTION OF LAW, the statute or custom supposed to apply to the Deed done, and determine whether there is such a statute or custom, and whether it denounces such a Deed as a Crime assigning thereto a punishment. That is the second step--to determine the Law. III. They are to decide the QUESTION OF THE APPLICATION OF THE LAW TO THE FACT, and to determine whether that special statute shall be applied to the particular person who did the deed charged against him. That is the third step--to determine the Application of the Law. Gentlemen, I shall speak a few words on each of these points, treating the matter in the most general way. By and by I shall apply these general doctrines to this special case. I. The jury is to DECIDE THE QUESTION OF FACT; to answer, Did the accused do the deed alleged, at the time and place alleged, with the alleged purpose and producing the alleged result? The answer will be controlled by the Evidence of sworn witnesses, who depose under a special oath to "tell the truth, the whole truth, and nothing but the truth." Their Evidence is the Testimony as to the Fact,--the sole testimony; the jury is the ultimate arbiter to decide on the credibility of the evidence, part by part, and its value as a whole. Sometimes it is an easy matter to answer this Question of Fact; sometimes exceedingly difficult. If there be doubts they must weigh for the accused, who is held innocent until proven guilty. With us the theory that the jury is the exclusive judge of the Question of Fact is admitted on all sides. But in England it has often happened that the judge instructs the jury to "_find the facts_" so and so; that is--he undertakes to decide the Question of Fact. In libel cases it is very common for New England judges to undertake to determine what constitutes a libel, and to decide on the intentions of the accused; that is to decide the most important part of the complex and manifold Question of Fact. For it is as much a question of fact to determine what constitutes a libel, as what constitutes theft, the _animus libellandi_ as much as the _animus furandi_. Sometimes juries have been found so lost to all sense of manhood, or so ignorant of their duties, as to submit to this judicial insolence and usurpation. If the Jury decide the Question of Fact in favor of the accused, their inquiry ceases at that step, they return their verdict, "NOT GUILTY;" and the affair is ended. But if they find he did the deed as charged, then comes the next function of the Jury. II. The Jury are to DECIDE THE QUESTION OF LAW. Is there a statute or custom denouncing a penalty on that special deed? is the statute constitutional? To determine this matter, there are three sources of evidence external to their own knowledge. 1. _The Testimony of the Government's Attorney._ The Government itself is his client, and he gives such a statement of the law as suits the special purposes of the rulers and his own private and particular interest, selects such statutes, customs, and decisions, as will serve this purpose, and declares, Such is the law. Nay, he makes inferences from the law, and thereby infers new customs, and constructs new statutes, invents new crimes. He treats the law as freely as he treats the facts--making the most that is possible against the party accused. You have seen already what tricks Government attorneys have played, how they pervert and twist the law--making it assume shapes never designed by its original makers. He gives his opinion as to the law, as he gave an opinion as to the fact. This is not necessarily his personal and actual, but only his official and assumed opinion--what he wishes the Jury to think is law in this particular case. 2. _The Testimony of the Defendant's Attorney._ The accused is his client. He is to do all he can to represent the law as favorable as possible to the man on trial. He gives an opinion of the law, not his personal and actual, but his official and assumed opinion--what he wishes the Jury to think is law in this particular case. 3. _The Testimony of the Judge on the Bench._ But in the English courts, and the Federal courts of the United States, he is commonly no more than a government attorney in disguise; I speak only of the general rule, not the exceptions to it. He has received his office as the reward for party services--was made a judge because he was one-sided as a lawyer. In all criminal cases he is expected to twist the law to the advantage of the hand that feeds him. Especially is this so in all Political trials--that is, prosecutions for opposition to the party which the judge represents. The judge may be impartial, or partial, just or unjust, ignorant or learned. He gives an opinion of the law,--not his personal and actual, but his official and assumed opinion--what he wishes the jury to think is law in this particular case. For the court also is a stage, and the judges, as well as the attorneys, may be players, "And one man in his time play many parts." Of these three classes of witnesses, no one gives evidence under special oath to tell the law, the whole law, and nothing but the law--or if it be so understood, then all these men are sometimes most grossly and notoriously perjured; but each allows himself large latitude in declaring the law. The examples I have already cited, show that the judge often takes quite as wide a range as the attorney-general, or the prisoner's counsel. As the jury hears the manifold evidence as to the facts, and then makes up its mind thereon and decides the Question of Fact, often rejecting the opinion of various witnesses, as ignorant, partial, prejudiced, or plainly false and forsworn; so will the jury hear the manifold and often discrepant evidence as to the law, and then make up their mind thereon and decide the Question of Law, often rejecting the opinion of various witnesses thereupon ignorant, partial, prejudiced, or plainly false and forsworn. In regard to the Fact, the jury is limited to the evidence adduced in court. What any special juror knows from any other source is not relevant there to procure conviction. But in regard to the Law there is no such restriction; for if the jury know the law better than these three classes of witnesses for it in court, then the jury are to follow their better knowledge. At any rate, the jury are to make up their minds on this question of Law, and for themselves determine what the special Law is. Every man is to be held innocent until proved guilty--until the special Deed charged is proved against him, and until that special deed is proved a Crime. The jury is not to take the government attorney's opinion of the Fact, nor the prisoner's counsel's opinion of the Fact, nor yet the judge's opinion thereon; but to form their own opinion, from the evidence offered to make up their own judgment as to the Fact. So likewise they are not to take the government attorney's opinion of the Law, or the prisoner's counsel's opinion of the Law, nor yet the judge's opinion thereon; but from all the evidence offered, not [Transcriber's Note: for 'not' read 'or'; see Errata] otherwise known to them, to make up their own judgment as to the Law. After they have done so--if they decide the Law in favor of the accused, the process stops there. The man goes free; for it does not appear that his deed is unlawful. But if the jury find the Law against the deed, they then proceed to their third function. III. The jury is to decide the QUESTION OF THE APPLICATION OF THE LAW TO THE FACT. Here is the question: "Ought the men who have done this deed against the form of Law to be punished thereby?" The government attorney and the judge are of the opinion that the law should be thus applied to this case, but they cannot lay their finger on him until the jury, specially sworn "well and truly to try and true deliverance make," have unanimously come to that opinion, and say, "Take him and apply the law to him." The Deed may be clear and the Statute clear, while the Application thereof to the man who did the deed does not follow, and ought not to follow. For 1. It is not designed that the full rigor of every statute shall be applied to each deed done against the letter thereof. The statute is a great sleeping Lion, not to be roused up when everybody passes that way. This you see from daily practice of the courts. It remains in the Discretion of the Attorney to determine what offences he will present to the Grand-Jury,--he passes by many, and selects such as he thinks ought to be presented. It remains in the Discretion of the Grand-Jury to determine whom they will indict, for sometimes when the Fact and Law are clear enough to them, they yet find "no bill" or _ignore_ the matter. And after the man is indicted, it still remains in the Discretion of the Attorney to determine whether he will prosecute the accused, or pass him by. Indeed I am told that the very Grand-Jury who found the bills which have brought you and me face to face, hesitated to indict a certain person on account of some circumstances which rendered his unlawful act less deserving of the legal punishment: the Attorney told them he thought they had better find a bill, and he would enter a _nolle prosequi_ in court,--plainly admitting that while the Law and the Fact were both clear, that the Grand-Jury were to determine in their Discretion whether they would apply the law to that man, whether they would indict or not; and the Attorney whether he would prosecute or forbear. It remains equally in the Discretion of the Trial Jury to determine whether the man who did the unlawful deed shall be punished--whether the spirit of that statute and the Purpose of Law requires the punishment which it allows. 2. Besides, in deciding this question--the jurors are not only to consider the one particular statute brought against the prisoner, but the whole Complex of Customs, Statutes, and Decisions, making up the Body of Law, and see if that requires the application of this special statute to this particular deed. Here are two things to be considered. (1.) The general Purpose of the whole Body of Laws, the Object aimed at; and (2.) The Means for attaining the end. Now the Purpose of Law being the main thing, and the statute only subsidiary to that purpose, the question comes--"Shall we best achieve that Purpose by thus applying the statute, or by not applying it?" This rests with the Jury in their Discretion to determine. 3. Still more, the Jury have consciences of their own, which they must be faithful to, which no official position can ever morally oblige them to violate. So they are to inquire, "Is it right in the sight of God, in the light of our consciences, to apply this special statute to this particular case and thus punish this man for that unlawful deed?" Then they are to ask, also, "Was the deed _naturally wrong_; done from a wrong motive, for a wrong purpose?" If not, then be the statute and the whole complex of laws what they may, it can never be right for a jury to punish a man for doing a right deed, however unlawful that deed may be. No oath can ever make it right for a man to do what is wrong, or what he thinks wrong--to punish a man for a just deed! But if the twelve men think that the Law ought not to be applied in this case--they find "not guilty," and he goes free; if otherwise, "guilty," and he is delivered over to the judges for sentence and its consequences, and the judge passes such sentence as the Law and his Discretion point out. The judge commonly, and especially in political trials, undertakes to decide the two last Questions himself, determining the Law and the Application thereof, and that by his Discretion. He wishes to leave nothing to the Discretion of the jury, who thus have only the single function of deciding the Question of Fact, which is not a Matter of Discretion--that is, of moral judgment,--but only a logical deduction from evidence, as the testimony compels. He would have no moral element enter into their verdict. The judge asks the jury to give him a deed of the ground on which he will erect such a building as suits his purpose, and then calls the whole thing the work of the jury, who only granted the land! But this assumption of the judges ultimately and exclusively to decide the question of Law and its Application, is a tyrannous usurpation. (1.) It is contrary to the fundamental Idea of the Institution of Trial by jury. (2.) It leads to monstrous tyranny by putting the Property, Liberty, and Life of every man at the mercy of the government officers, who determine the Law and its Application, leaving for the jury only the bare question of Fact, which the judge can so manage in many cases as to ruin most virtuous and deserving men. (3.) Not only in ancient times did the jury decide the three questions of Fact, of Law, and of its special Application, but in cases of great magnitude they continue to do so now, in both America and England, and sometimes in direct contradiction to the commands of the judges. * * * * * Gentlemen of the Jury, if you perform this threefold function, then you see the exceeding value of this mode of trial, 1. For the punishment of wrong deeds done against the law, done by the unorganized selfishness of thieves, housebreakers, murderers, and other workers of unrighteousness; 2. And also for the prevention of wrong deeds attempted in the name of law, by the organized selfishness of the makers and officers thereof. For in each special case brought to trial, the jury are judges of the Law and of its Application. They cannot make a law--statute or custom--nor repeal one; but in each particular case they must demand or forbid its execution. These Tribunes of the Saxon People have no general veto on law-making, and can efface no letter from the statute-book, but have a special and imperative veto on each case for the Application of the law. Justice, the point common to the interests of all men, yes, the point common to God and our Conscience, is the Aim and Purpose of Law in general; if it be not that the law is so far unnatural, immoral, and of no obligation on the conscience of any man. The special Statute, Custom, or Decision, is a provisional Means to that end; if just, a moral means and adequate in kind; if unjust, an immoral means, inadequate in kind, and fit only to defeat the attainment of that Justice which is the Purpose of all Law. Accordingly, if by an accident, a special statute is so made that its application in a particular case would do injustice and so defeat the Design and Purpose of Law itself, then the function of the jury under their oath requires them to preserve the End of law by refusing to apply the provisional statute to an unjust use. And if by design a statute is made in order to do injustice to any man--as it has very often happened in England as well as America,--then the jury will accomplish their function by refusing to apply that statute to any particular case. So will they fulfil their official oath, and conserve the great ultimate Purpose of Law itself. Gentlemen, you will ask me where shall the jury find the Rule of Right, and how know what is just, what not? In your own Conscience, Gentlemen; not in the conscience of the Attorney for the Plaintiff-Government, or the accused Defendant; not in the conscience of the community; still less in the technical "opinion" of the lawyers, or the ambition, the venality, the personal or purchased rage of the court. Of course you will get such help as you can find from judges, attorneys, and the public itself, but then decide as you must decide--each man in the light of his own conscience, under the terrible and beautiful eyes of God. How does the juror judge of the Credibility of Evidence? By the "opinion" of the lawyers on either side? by the judge's "opinion," or that of the community? No one would dare determine thus. He decides personally by his own common sense, not vicariously by another's opinion. And as you decide the Matter of Fact by your own Discretion of Intellect, so will you decide the Matter of Right by your own Discretion of Conscience. Gentlemen, when the jury do their official duty it becomes impossible to execute a statute, or custom, or to enforce a decision which the jury--"the country"--think unjust and not fit to be applied. But if the judge usurps these two functions of the jury, and himself decides the Question of Law and its Application, you see what follows--consequences the most ghastly, injustice in the name of Law, and with the means of Law! Yes, tyranny spins and weaves with the machinery of Freedom, and a Nessus-shirt of bondage is fixed on the tortured body of the People. The power of the judge will be especially dangerous in times of political excitement, and in political trials. * * * * * Gentlemen, this matter is so important, and the danger now so imminent that you will pardon me a few words while I set forth the mode by which this wickedness goes to work, and what results it brings to pass. Follow me in some details. I. As to the judges dealing with the Grand-Jury. Here let me take the examples from the circuit court of the United States in a supposed case where a man is to be tried for violating the fugitive slave bill. You will see this is a case which may actually happen. 1. The judge challenges the whole body summoned as grand-jurors and catechizes them after this fashion. (1.) "Have you formed an opinion that the law of the United States, known as the Fugitive Slave Law of 1850, is Unconstitutional, so that you cannot indict a person under it for that reason, although the court holds the statute to be Constitutional?" This is riddling No. 1. Such as think the fugitive slave bill unconstitutional are at once set aside. The judge proceeds to ask such as have no doubt that it is constitutional, (2.) "Do you hold any opinions on the subject of Slavery in general, or of the Fugitive Slave Law in special, which would induce you to refuse to indict a man presented to you for helping his brother to freedom?" This is riddling No. 2; other "good men and true" are rejected, but some are found "faithful" to the purposes of the court; and the judge puts his next question, (3.) "Will you accept for Law whatever the court declares such?" This is riddling No. 3. Still the judge finds three-and-twenty men small enough to pass through all these sieves. They are to be "the jury." All the men who deny the constitutionality of the wicked statute; all who have such reverence for the unalienable Rights of man and for the Natural Law of God that they would not prevent a Christian from aiding his brother to escape from bondage; all who have such respect for their own manhood that they will not swear to take a judge's word for law before they hear it--are shut out from the "grand inquest;" they are no part of the "Country," or the "Body of the county," are not "good men and true." Gentlemen of the Jury, consider the absurdity of swearing to take for law what another man will declare to be law, and before you hear it! Suppose the judge should be drunk and declare the fugitive slave bill in perfect harmony with the Sermon on the Mount, those noble words "Whatsoever ye would that men should do unto you, do ye even so unto them,"--are jurors to believe him? What if the judge should be sober, and declare it a "misdemeanor" to call the fugitive slave bill a wicked and hateful statute, and all who thus offended should be put in jail for twelve months! Are honest men to take such talk for American law? The jurors then take this oath which the clerk reads them:-- "You, as a member of this Inquest for the District of Massachusetts, shall diligently inquire and true presentment make of all such matters and things as shall be given you in charge; the counsel of the United States, your fellows', and your own you shall keep secret; you shall present no man for envy, hatred, or revenge; neither shall you leave any man unpresented--for love, fear, favor, affection, or hope of reward; but you shall present things truly as they come to your knowledge, according to the best of your understanding. So help you God!"[114] [Footnote 114: See other forms of Oath in 8 St. Tr. 759, 772.] Then the judge appoints the most pliant member of the jury as "foreman"--selecting, if possible to find him, some postmaster or other official of the government, or some man marked for his injustice or venality, who may have the desirable influence with his fellows. 2. The next thing is to moisten this material thus trebly sifted, and mould it into such vessels of tyranny as he can fill with his private or judicial wrath and then empty on the heads of his personal foes or such as thwart his ambitious despotism or the purposes of his government. So he delivers his CHARGE TO THE GRAND-JURY. By way of introduction, he tells them-- (1.) That they are not the Makers of Law. Legislation is the function of Congress and the President; even the COURT, the "SUPREME COURT OF THE UNITED STATES" itself cannot make a law, or repeal one! (2.) That they are not the Declarers, or Judges of Law. To know and set forth the Law is the function of the COURT. It is true every man in his personal capacity, as private citizen, is supposed to know the law, and if he violates it, of his own presumption, or by the persuasion of some others who falsely tell him about the law, he must be punished; for "_ignorantia nemini excusat_," ignorance excuseth none; the private advice of the full bench of judges would be held no excuse. But in their official capacity of jurors they are supposed to know nothing of the Law whatsoever. It seems taken for granted that though one of the Jurors may be an old judge of the Supreme Court of the United States, and have sat on the bench for twenty years; nay, though he may be also an old legislator of twenty years' standing, and as legislator have made the very statute in question, and also as judge subsequently have explained and declared it, yet the moment he takes the oath as Grand-Juror, all this knowledge is "gone from him" as completely Nebuchadnezzar's dream. The court is the assembly of magicians, astrologers, sorcerers, and Chaldeans to restore it. Congress might pass a law compelling ex-judges, ex-senators, and ex-representatives--who are so numerous nowadays, and continually increasing and likely to multiply yet more,--to serve as grand-jurors; soon as they take their oath, they are in law held and accounted to be utterly ignorant of law, and bound to accept as law whatsoever the court declares such. The acting judge may be young, blind, ignorant, ambitious, drunk with brandy or rage, he may have a personal interest in promoting [Transcriber's Note: for 'promoting' read 'perverting'; see Errata] the law, and may notoriously twist it so as to gratify his peculiar or familistic spleen, still the jury to accept the court's opinion for the nation's law. Any political ignoramus, if hoisted to the "bench," has judicial authority to declare the law,--it is absolute. If he errs, "he is responsible to the proper authorities--he may be removed by impeachment;" but the jury must not question the infallibility of his opinion. For though the grand-jury is "the country," the judge is not only all that, and more so; but is "the rest of mankind" besides. Then the judge goes further--talks _solemnly_, yet familiar; to wheedle jurors the better, he mixes himself with them, his "WE" embracing both judge and jury. I shall now quote actual language used in this very court, by the late Hon. Judge Woodbury:-- "One of the peculiar dangers ... to which jurors, as well as judges, are exposed, is the _unpopularity, or obnoxiousness_ ... of any particular law, which has been violated, leading _us_ ... to be timid or unfaithful in enforcing it ... the subject-matter being a delicate or offensive one." "While we ... are holding the scales as well as the sword of Justice, in _humble imitation of the Divine Judge_ on high," it is our duty to "_let law, as law_, [that is, whether it is just or unjust] _reign supreme_, reign equally over all, and as to _all things_, no less than persons; and till it is changed by the proper authorities, _not to interpose our individual caprices or fancies or speculations_ [that is, our _convictions of justice_] _to defeat its due course and triumph_." We must _not_ "_disregard laws_, when disliked, _because we can_, under the universal suffrage enjoyed here, _otherwise help_ legally _to change or annul them_ by our votes." "As jurors _you have sworn to obey them till so changed_, and ought to stand by them faithfully, to the last moment of their existence." "We are safest in our capacity of public officers ... to execute the laws as they are [right or wrong], _while others_ who may make or retain bad laws in the statute-book, _are answerable for their own wrong_. If they preserve laws on the statute-book, which are darkness rather than light and life to the people, theirs is the fault, [that is, if a blacksmith make a dagger, and tell us to stab an innocent man with it, we must obey, and the blame will rest on the blacksmith who made the dagger, not on the assassin who murdered with it!] In some cases, also, when we think the _existing laws and punishments are wrong_, and hence venture to encourage others in disobedience by neglecting to indict and punish offenders, it should make us pause and halt when it is remembered, it may turn out that _we_ ourselves _may not be exactly Solons or Solomons_ in these respects, nor quite so much wiser than the laws themselves, as sometimes we are hastily induced to suppose." "Miserable must be the fate of that community where the ministers of the law are themselves disposed to disregard it;" "government will become a curse;" "and this whether such a _betrayal of public trust_ springs from the _delusions of false philanthropy or fanatical prejudices, no less than when it comes from unbridled licentiousness_." "We must not lay the flattering unction to our souls, that because by some _possibility there may not be guilt_, we can rightfully discharge as if there were no guilt." "It is sometimes urged against agreeing to indict, convict, or punish, that we have _conscientious scruples on the subject_;" "if sincere tenderness of conscience presses on the heart and mind against executing some of the laws, _it should lead us to decline office or resign_; not to neglect or disobey, while in office, what we have promised and sworn to perform;" [as if the juror swore to do injustice!] "or if a majority prove unaccommodating or inflexible against us, then it behooves those differing from them ... _to withdraw entirely from such a government, and emigrate_." [So the juror must not try to do justice at home, but seek it in exile.] "But in all such cases we must take special care not to indulge ourselves in considering an act as a sin which _is only disagreeable_, or the result of only some _prejudice or caprice_." "_The presumptions are that all laws_, sanctioned by such intelligent, numerous, and respectable members of society as compose our legislative bodies, _are constitutional_, and until pronounced otherwise by the proper tribunal, the judiciary, _it is perilous for jurors to disobey them_," [that is, to refuse to execute them] "and it is trifling with their solemn obligations to _disregard them in any way and on any occasion, from constitutional doubts_, unless of the clearest and strongest character."[115] [Footnote 115: The above extracts are from Judge Woodbury's charge to the Grand-Jury, in Circuit Court of United States, at Boston, taken from the _Evening Traveller_, copying the reprint of Boston Daily Advertiser, of October 25, 1850.] He then tells them that _no feeling of Humanity_ must be allowed to prevent them from executing any law which the court declares to them, "whether the statute is a harsh one, is not for us to determine."[116] _A cruel law is to be enforced as vigorously as a humane one_; an _unjust law_ as a _just one_; a statute which aims to defeat the purpose of Law itself, just as readily as one which aims to secure the dearest rights of humanity. If the statute is notoriously wicked, as in the case supposed, then the Judge says: "It is to be observed that this statute [the fugitive slave bill] subjects no person to arrest who was not before liable to be seized and carried out of the State;" "Congress has enacted this law. _It is imperative, and it will be enforced._ Let no man mistake the mildness and forbearance with which the criminal code is habitually administered, [as in cases of engaging in the slave-trade] for weakness or timidity. _Resistance [to the fugitive slave bill] must make it sternly inflexible._" "As great efforts have been made to convince the public that the recent law [the fugitive slave bill] cannot be enforced with a good conscience, but may be conscientiously resisted ... I deem it proper to advert, briefly, to _the moral aspects_ of the subject." "The States without the constitution would be to each other foreign nations." "Those, therefore, who have the strongest convictions of the _immorality of the institution of slavery_, are not thereby authorized to conclude that the _provision for delivering up fugitive slaves is morally wrong_, [that is, if it be wrong to hold man in bondage, it is also not wrong,] or that our Fathers ... did not act wisely, justly, and humanely in acceding to the compacts of the Constitution." "Even those who go to the extreme of condemning the Constitution and the laws made under it, as _unjust and immoral_, cannot ... justify resistance. In their view, such laws are inconsistent with the justice and benevolence and against the will of the Supreme Lawgiver, and they emphatically ask, '_Which shall we obey, the law of man, or the Will of God?_' I answer, 'OBEY BOTH!' The _incompatibility_ which the question assumes [between _Right and Wrong, or Good and Evil, or God and the Devil_] _does not exist_! Unjust and oppressive laws _may indeed be passed_ by human governments. But if _Infinite and Inscrutable Wisdom permits political society_, having the power of human legislation, _to establish such laws, may not the same Infinite and Inscrutable Wisdom permit and require an individual_, who has no such power, _to obey them_?" [So "if Infinite and Inscrutable Wisdom permits" a Blacksmith "having the power" to forge steel and temper it, to make daggers, "may not the same Infinite and Inscrutable Wisdom permit and require the individual" carpenter or tailor, who has no such power, to use the dagger for the purpose intended!] "Conscience, indeed, is to be reverenced, and obeyed; but still we must remember that it is _fallible_, especially when the rights of others are concerned, [that is, the right to kidnap men] _and may lead us to do great injustice_, [by refusing to punish a man who helps his brother enjoy his self-evident, natural, and unalienable right to life, liberty, and the pursuit of happiness]. The annals of the world abound with enormities committed by a narrow and darkened conscience." A _statute_ "is the moral judgment, the _embodied conscience of the political community_, [the fugitive slave bill the 'embodied conscience' of New England]. To this not only is each individual bound to submit, [right or wrong,] but it is a new and _controlling element in forming his own moral judgment_;" [that is, he must _think_ the statute is just]. "Obedience is a _moral duty_, [no matter how immoral the law may be]. _This is as certain as that the Creator made man a social being_;" "to _obey the laws of the land_ [no matter what laws, or how wicked soever] _is, then, to obey the Will of God_!" [Footnote 116: Words of Chief Justice Parker, in _Commonwealth_ vs. _Griffith_, 2 Pickering's Reports, 19, cited with approbation by Chief Justice Shaw, in the Sims case, 7 Cushing's Reports, 705, and also cited from him and acted on by fugitive slave bill Commissioner Loring, in the Burns case.] Gentlemen of the Jury, you think I have imagined and made up this language out of my own fancy. No, Gentlemen, I could not do it. I have not the genius for such sophistry. I only quote the words of the Hon. Judge Peleg Sprague delivered to the grand-jury of this Circuit Court of United States at Boston, March 18, 1851.[117] Gentlemen, I showed you what Thurlow could say at Horne Tooke's trial on the 4th of July, 1777. Nay, I quoted the words of Powis and Allybone, and Scroggs and Jeffreys.[118] But, Gentlemen, the judge of New England transcends the judges of Old England. [Footnote 117: See _Boston Daily Advertiser_ of March 19, 1851.] [Footnote 118: See above, p. 33, 37, _et al._] 3. Having made this general preparation for his work and shaped his vessel to the proper form, he proceeds to fill it with the requisite matter. (1.) He practically makes the Law just as he likes, so as to suit the general purpose of the government, or the special purpose of his private vengeance or ambition. Thus, a. Out of the whole complex of law--statutes, decisions, customs, charges, opinions of judicial men, since the Norman conquest or before it,--he selects that special weapon which will serve his present turn. And tells the jury, "that is the law which you are sworn to enforce. I have not made it--it is the _Lex terræ_, the Law of the Land." Or if in such an arsenal, so copious, he finds no weapon ready made, then b. Out of that pile of ancient instruments he selects something which he forges over anew, and thus constructs a new form of law when he could not find one ready for his hand. If a straight statute will not catch the intended victims he perverts it to a hook and therewith lays hold. He thus settles the law. (2.) He next practically determines what Deed constitutes the "offence" forbidden by the law he has just made. So he selects some act which it is notorious was done by the man he strikes at, and declares it is the "offence," the "crime." Here too he is aided by ancient precedent; whereof if our brief Republican annals do not furnish examples, he hies to the exhaustless treasury of Despotism in the English common law. He opens the "Reports," the "Statutes of the Realm," or goes back to the "Year-books." Antiquity is rich in examples of tyranny. "He readily finds a stick who would beat a dog." "Such are the opinions," quoth he, "of the venerable Chief Justice Jones," or "my Lord Chancellor Finch," or "Baron Twysden," or "my Lord Chief Justice Kelyng." Thus the Judge constructs the Jury--out of such men as he wishes for his purpose; constructs the Law, constructs the Offence, the Crime: nay, he points out the particular Deed so plain that he constructs the Indictment. All that is left for the "Grand Inquest" is the mechanical work of listening to the "evidence" and signing the Bill--"_Billa Vera_," a true bill. That they may accomplish this work he delivers them over to the District Attorney; he may be also an agent of the government, appointed for his party services, looking for his reward, expecting future pay for present work, extra pay for uncommon zeal and "discretion." Gentlemen of the Jury, this _may_ be the case--humanity is fallible, and it sometimes may happen even in the Circuit Court of the United States that such a man should hold the office of District Attorney. For it is not to be expected, nay, it is what we should not even ask--that this place should always be filled by such conspicuous talent, such consummate learning, and such unblemished integrity as that of the present attorney (Hon. Mr. Hallett). No, Gentlemen of the Jury, as I look round these walls I am proud of my country! Such a District Attorney, so bearing "his great commission in his look;" his political course as free from turning and winding as the river Missouri; high-minded, the very Cæsar's wife of democratic virtue,--spotless and unsuspected; never seeking office, yet alike faithful to his principles and his party; and with indignant foot spurning the Administration's bootless bribe,--the fact outtravels fancy. Nay, Gentlemen, it is something to be an American--I feel it as I look about me. For the honorable Attorney is perfectly suited to this Honorable Court;--yea, to the Administration which gives them both their dignity and their work and its pay. Happy country with such an Attorney, fortunate with such a Court, but thrice and four times fortunate when such several stars of justice unite in such a constellation of juridic fire! But, Gentlemen, it is too much to ask of human nature that it should be always so. In my supposed case, the judge delivers the persons accused to the officers, restless, bellowing, and expecting some fodder to be pitched down to them from the national mow, already licking their mouths which drool with hungry anticipation. They will swear as the court desires. Then the Attorney talks with the most pliant jurors, coaxes them, wheedles them, stimulates them to do what he wants done. Some he threatens with the "displeasure of the government;" he swears at some. After all, if the jury refuse to find a bill,--a case, Gentlemen, which has happened,--they are discharged; and a new jury is summoned; some creature of the government is put on it, nay, perhaps some kinsman of the anxious judge, at least a Brother-in-Law, and at last twenty-three men are found of whom twelve consent to a "True Bill." Then great is the joy in the judge's heart,--it is corrupt judges I am speaking of, Gentlemen of the Jury, not of upright and noble men, may it please your Honors! There is great joy in the judge's heart, and great rejoicing _amongst his kinsfolk and intimate friends_ who whinney and neigh over it in the public journals, and leer at the indicted man in the street, lolling out their tongues greedy for his [Transcriber's Note: omit 'his'; see Errata] vengeance! * * * * * II. Now, Gentlemen, look next at the judge's dealing with the Trial-Jury. He proceeds as before. 1. He sifts the material returned to him, through those three sieves of questioning, and gets a Jury with no hard individual lumps of solid personal independence. They take the oath which you have just taken, Gentlemen: "You shall well and truly try the issue between the United States and the Defendant at the Bar, according to the law, and the evidence given you, so help you God!" The facts are then presented, and the case argued on both sides. 2. The Judge sums up, and charges the Jury. He explains their oath; to try the issue _according to the law_ does not mean (a) according to the whole complex which is called "_Law_," or "_The Law_," but according only to that particular statute which forbids the deed charged,--for otherwise the Jury must judge of the Purpose of Law, which is Justice, and inquire into the rightfulness of the deed and of the statute which forbids it. Nor does it mean (b) by the Jurors' notion of that statute, but only by the Judge's opinion thereof. He tells them--if they proceed to inquire into the natural Justice of the deed, or into the law which forbids it, then they transcend their office, and are guilty of "Perjury," and reads them the statute for the punishment of that offence, and refers to examples--from the times of the Stuarts, though he does not mention that--when Jurors were fined and otherwise severely dealt with for daring to resist a judge. Then out of the facts testified to by the government witnesses, he selects some one which is best supported, of which there is no doubt. He then declares that the question of "Guilty or not guilty" turns on that point. If the accused did that deed--then he is Guilty. So the moral question, "Has the man done a wrong thing?" is taken from their consideration; the intellectual question, "Has he done a deed which amounts to the crime forbidden?" is not before them; only the mechanical question, "Did he do that particular act?" They are not to inquire as to the Justice of the law, its Constitutionality, or its Legality; nor the Justice or the Criminality of the deed--only of its Actuality, Did he do this deed? Nay, sometimes the Judge treats them as cattle, and orders them to _find the facts for the government_. If they refuse, he threatens them with punishment. Thus he constructs the Trial-Jury, the Law, the Evidence, the Crime, and the Fact. * * * * * Now, Gentlemen, when this is done and done thoroughly, the Judge has kept all the Forms, Presentment by the Grand-Jury, and Trial by a Petty Jury; but the substance is all gone; the Jury is only a stalking horse, and behind it creeps the Judicial servant of Tyranny, armed with the blunderbuss of law,--made and loaded by himself,--and delivers his shot in the name of law, but against Justice, that purpose of all law. Thus can tyranny be established--while all the forms of law are kept.[119] [Footnote 119: See 1 Jardine, Criminal Trials, 110. 2 Parker's Sermons, 266 and note.] Gentlemen of the Jury, let me make this more clear by a special case wholly fictitious.--Thomas Nason, a "Non-Resistant" and a Quaker, is a colored citizen of Boston, the son and once the slave of Hon. James Nason of Virginia, but now legally become a free man by self-purchase; he has the bill of sale of himself in his pocket, and so carries about him a title deed which would perhaps satisfy your Honors of his right to liberty. But his mother Lizzie (Randolph) Nason, a descendant of both Mr. Jefferson and Mr. Madison,--for Virginia, I am told, can boast of many children descended from two Presidents, perhaps from three, who "Boast the pure blood of an illustrious race, In quiet flow from Lucrece to Lucrece"-- from Saxon master to African slave,--is still the bondwoman of the Hon. James, the father of her son Thomas. From the "Plantation manners" of her master, the concubine, "foolishly dissatisfied with slavery," flies to Boston, and takes refuge with her Quaker son, who conceals his mother, and shelters her for a time. But let me suppose that his Honor Judge Curtis, while at Washington, fired with that patriotism which is not only habitual but natural and indigenous to his Honor, informs Mr. Nason of the hiding-place of his female slave, thus betraying a "mistress" to her master, no longer, alas, her "keeper." It is no injurious imputation--it is an imaginary honor I attribute to the learned and honorable Judge. Mr. Nason sends the proper agent to Boston to save the Union of States by restoring the union of master and slave. Mr. George Ticknor Curtis, fugitive slave bill commissioner, and brother to the Hon. Judge, issues his warrant for kidnapping the mother; his coadjutor and friend, Mr. Butman, attempts to seize her in her son's house. Thomas, unarmed, resists the intruder, and with a child's pop-gun drives that valiant officer out of the house, and puts the mother in a place of safety,--beneath the flag of England, or the Pope, or the Czar. Commissioner Curtis telegraphs the news to Washington,--announcing a "NEW CASE OF TREASON--more 'levying war!'" The Secretaries of State and of War write dreadful letters, breathing fire and slaughter, and President Pierce, a man of most heroic courage, alike mindful of his former actual military exploits at Chapultepec, of his delegated triumph at Greytown, and of the immortal glory of Mr. Fillmore, issues his Proclamation, calling on all good citizens, and especially on the politicians of his party, to "Save the Union" from the treason of this terrible Thomas Nason, who will blow up the Constitution with a pop-gun! At the next session of the Honorable Circuit Court of the United States in and for the first District, his Honor the Hon. Benjamin Robbins Curtis, Judge, constructs and charges the Grand-Jury in the manner already set forth. He instructs them that if any man, by force and arms, namely, with a pop-gun, does resist a body of United States officers, attempting to kidnap a woman, his own mother, that he thereby levies war against the United States, and accordingly commits the crime of "Treason" which consists in levying war against the United States--the "_amount_ of force is not material." And it is their duty to indict all persons in that form offending. The Attorney, the Hon. Benjamin Franklin Hallett, offers to "bet ten dollars that I will get" Nason "indicted," and urges the matter. But no bill is found, the Jury is discharged, a new Jury is summoned, and Mr. William W. Greenough, the Brother-in-law of the Judge is put on it, "drawn as Juror"--and then a "true bill" is found, Mr. Hallett actually making an indictment that cannot be quashed! On the day before Thanksgiving Thomas Nason is arraigned; and is brought to trial for this new Boston Massacre on the anniversary of the old one--on the Fifth of March. The judge constructs a Trial-Jury as before. Mr. Hallett, assisted by Mr. Thomas, Mr. George T. Curtis, and Commissioner Loring, manage the case for the government, bringing out the whole strength of the kidnapping party, and directing this Macedonian phalanx of Humanity and Law and Piety against a poor friendless negro. Mr. Hale, Mr. Ellis, and Mr. Dana defend him. Officer Butman and his coadjutors--members of the "Marshal's guard"--testify that Mr. Nason attacked them with the felonious weapon above named, putting them in mortal bodily fear greater than that which in Mexico once overthrew the (future) President of all this land! Mr. Herrman, the dealer in toys, testifies that he sold the murderous weapon for twenty-five cents to Mr. Nason who declared that he "could frighten Butman with it;" that it is of German manufacture, and is called a Knallbüchse! Judge Curtis sums up the matter. He tells the jury, (1.) That they are not to judge of the Law punishing treason, but to take it from the Court. (2.) Not to judge what Act constitutes the Crime of Treason, but take that also from the Court, and if the Court decides that offering a pop-gun at a rowdy's breast constitutes the crime of treason, they are to accept the decision as constitutional law. (3.) They are not to ask if it be just to hang a man for thus resisting a body of men who sought to kidnap his mother, for even if it be unjust and cruel it is none of their concern, for they must execute a cruel and unjust law with even more promptitude than a just and humane one, and in the language of the "Defender of the Constitution," "conquer their prejudices," and "do a disagreeable duty." (4.) If they think the Law commands one thing and the Will of God exactly the opposite, in the well-known words of Judge Sprague, they must "obey both" by keeping the law of man when it contradicts the law of God, for they can never be good Christians so long as they scruple to hang a Quaker for driving off a kidnapper; and obedience to the law is a moral duty, no matter how immoral the law may be, and "to obey the law of the land is to obey the will of God." (5.) But they have a simple question of fact to determine; namely, Did the Defendant resist officer Butman in the manner set forth? If satisfied of that, they must find him guilty. No mistaken notions of Justice must induce them to refuse their verdict--for they are not to make the law, but only help execute it; and their conscience is so "fallible, especially when the rights of others are concerned, and may lead them to do great injustice," for "the annals of the world abound with enormities committed by a narrow and darkened conscience." They must not ask if it be "religious" to do so--for to use the words of the most religious of all Americans, a man of most unspotted life in public and private, "Religion has nothing to do with politics," and this is a political trial. If there be any injustice in the law and its execution the blame lies with the makers thereof not with the jurors, and they may wash their hands as clean as Pilate's from the blood of Christ. Besides, if there be injustice the President can pardon the offender, and from his well-known religious character--which rests on the unbiased testimony of his _own minister_ and the statement of several partisan newspapers published in the very heat of the election, when men, and especially politicians looking for office, never exaggerate,--he doubtless "will listen to petitions for a commutation of punishment!" But there is no injustice in it--for slavery is part of the _lex terræ_, the law of the land, protected by the Constitution itself, which is the _Lex Suprema_--the Supreme Law of the Land, and nearly eighty years old! Besides, "Slavery is not immoral," not contrary to the public policy of Massachusetts; and, moreover, the "mother" whom the criminal actually rescued, was a "foreigner" and "whatever rights she had, she had no right _here_."[120] [Footnote 120: See Hon. Judge Curtis's Speech at the Union Meeting in Faneuil Hall, November 26, 1850.] But it is not a cruel or an unchristian thing to require a negro layman to allow his mother to be kidnapped in his own house--especially if she were a born slave, and so by the very law "a chattel personal to all uses, intents, and purposes whatever," and of course wholly divested of all natural rights, even if a colored person ever had any--for an eminent American minister, of one of the most enlightened sects in Christendom, has publicly offered to send his own freeborn mother into bondage for ever! Moreover, if the jurors do not find a verdict of guilty, then they themselves are guilty of PERJURY! So the jury, without leaving their seats, find him guilty; the judge sentences; the President signs the Death-warrant, and Marshal Freeman hangs the man--to the great joy of the Commissioner's and the Marshal's guard who vacate the brothels once more and attend on that occasion and triumph over the murdered Quaker. But the mischief does not stop there; the Boston slave-hunters are not yet satisfied with blood; the judge constructs another grand-jury as before, only getting more of his kinsfolk thereon, and taking his law from the impeached Judges Kelyng and Chase, charges that all persons who _advise_ to an act of levying war, or evince an "_express liking_" for it, or "_approbation_" of it, are also guilty of treason; and "in treason all are Principals." Accordingly the jury must indict all who have evinced an "express liking" of the rescue, though they did not evince approval of the rescue by such means. It appears that Rev. Mr. Grimes in the meeting-house the Sunday before the treason was consummated, had actually prayed that God would "break the arm of the oppressor and let the oppressed go free;" that he read from a book called the Old Testament, "Bewray not him that wandereth," "Hide the outcast," and other paragraphs and sentences of like seditious nature. Nay, that from the New Testament he had actually read the Sermon on the Mount, especially the Golden Rule and the summing of the Law and the Prophets in one word, Love,--and had applied this to the case of fugitive slaves; moreover, that he had read the xxvth chapter of Matthew from the 31st to the 46th verse, with dreadful emphasis. Nay, anti-slavery men--in lectures--and in speeches in the Music Hall, which was built by pious people--and in Faneuil Hall, which was the old Cradle of Liberty, had actually spoken against man-stealing,--and even against some of the family of kidnappers in Boston! Still further, he adds, with great solemnity, a woman--a negro woman,--the actual wife of the criminal Nason--had brought intelligence--to her husband--that Mr. George T. Curtis,--the brother of the judge,--had issued his warrant--and Mr. Butman--"with a monstrous watch"--was coming to execute it--she told her husband,--and--incited him to his dreadful crime! If you find these facts you must convict the prisoners. So thirty or forty more are hanged for treason. Gentlemen of the Jury, these fictitious cases doubtless seem extravagant to you. I am glad they do. In peaceful times, in the majority of cases there is no disagreement between the law, the judge, and the jurors; the law is just, or at least is an attempt at justice, the judge wishes to do justice by means thereof, and the jurors aim at the same thing. In such cases there is no motive for doing wrong to any person: so the judge fairly interprets the righteous and wholesome law, the jurors willingly receive the interpretation and apply it to the special case, and substantial justice is done. This happens not only in civil suits between party and party, but also in most of the criminal cases between the Public and the Defendant. But in times of great political excitement, in a period of crisis and transition, when one party seeks to establish a despotism and deprive some other class of men of their natural rights, cases like those I have imagined actually happen. Then there is a disagreement between the judge and the jury; nay, often between the jury and the special statute wherewith the government seeks to work its iniquity. It is on such occasions that the great value of this institution appears,--then the jury hold a shield over the head of their brother and defend him from the malignity of the government and the Goliath of injustice, appointed its champion to defy the Law of the living God, is smote in the forehead by the smooth stone taken from a country brook, and lies there slain by a simple rustic hand; for in such cases the jury fall back on their original rights, judge of the Fact, the Law, and the Application of the Law to the Fact, and do justice in spite of the court, at least prevent injustice. * * * * * Now, Gentlemen of the Jury, I will mention some examples of this kind, partly to show the process by which attempts have been made to establish despotism, that by the English past you may be warned for the American present and future; and partly that your function in this and all cases may become clear to you and the Nation. The facts of history will show that my fancies are not extravagant. 1. In April, 1554, just three hundred and one years ago this very month, in England, Sir Nicolas Throckmorton, a gentleman of distinguished family, was brought to trial for high treason. He had held a high military office under Henry VIII. and Edward VI., but "made himself obnoxious to the Papists, by his adherence to some of the persecuted Reformers." With his two brothers he attended Anne Askew to her martyrdom when she was burnt for heresy, where they were told to "take heed to your lives for you are marked men." He was brought to trial April 17th, 1554, the first year of Bloody Mary. Of course he was allowed no counsel; the court was insolent, and demanded his condemnation. But the jury acquitted him; whereupon the _court shut the twelve jurors in prison_! Four of them made their peace with the judges, and were delivered: but eight were kept in jail till the next December, and then fined,--three of them £60 apiece, and five £225 apiece. This is one of the earliest cases that I find, where an English jury in a political trial refused to return such a verdict as the tyrant demanded.[121] [Footnote 121: See the case in 1 St. Tr. 869, and 1 Jardine, 40, also 115. The great juridical attacks upon English Liberty were directed against the Person of the Subject, and appear in the trials for Treason, but as in such trials the defendant had no counsel, the great legal battle for English Liberty was fought over the less important cases where only property was directly concerned. Hence the chief questions seem only to relate to money.] 2. In September, 1670, William Penn, afterwards so famous, and William Mead, were brought to trial before the Lord Mayor of London, a creature of the king, charged with "a tumultuous assembly." For the Quaker meeting-house in Grace Church Street, had been forcibly shut by the government, and Mr. Penn had preached to an audience of Dissenters in the street itself. The court was exceedingly insolent and overbearing, interrupting and insulting the defendants continually. The jury found a special verdict--"guilty of speaking in Grace Church Street." The judge sent them out to return a verdict more suitable to the desire of the government. Again they substantially found the same verdict. "This both Mayor and Recorder resented at so high a rate that they exceeded the bounds of all reason and civility." The Recorder said, "You shall not be dismissed till we have a verdict that the court will accept; you shall be locked up without meat, drink, fire, and tobacco; you shall not think thus to abuse the court; we will have a verdict by the help of God, or you shall starve for it!" When Penn attempted to speak, the Recorder roared out, "Stop that prating fellow's mouth or put him out of court." The jury were sent out a third time, and kept all night, with no food, or drink, or bed. At last they returned a verdict of "not guilty," to the great wrath of the court. _The judge fined the jurors forty marks apiece_, about $140, _and put them in jail_ until they should pay that sum. The foreman, Edward Bushel, refused to pay his fine and was kept in jail until he was discharged on _Habeas Corpus_ in November. Here the attempt of a wicked government and a cruel judge was defeated by the noble conduct of the jurors, who dared be faithful to their duty.[122] [Footnote 122: 6 St. Tr. 951; Dixon's Life of Penn; 22 St. Tr. 925.] 3. In 1681 an attempt was made to procure an indictment against the Earl of Shaftesbury, for High Treason. The Bill was presented to the Grand-Jury at London; Chief Justice Pemberton gave them the charge, at the king's desire--it was Charles II. They were commanded to _examine the evidence in public_ in the presence of the court, in order that they might thus be overawed and forced to find a bill, in which case the court had matters so arranged that they were sure of a conviction. The court took part in examining the witnesses, attempting to make out a case against the Earl. But the jury returned the bill with IGNORAMUS on it, and so found no indictment. The spectators rent the air with their shouts. The court was in great wrath, and soon after the king seized the Charter of London, as I have already shown you, seeking to destroy that strong-hold of Liberty. Shaftesbury escaped--the jury was discharged. Why did not the court summon another jury, and the chief justice put his brother-in-law on it? Roger Coke says, "But as the knights of Malta could make knights of their order for eight pence a piece, yet could not make a soldier or seaman; so these kings [the Stuarts] though _they could make what judges they pleased_ to do their business, _yet could not make a grand-jury_." For the grand-juries were returned by the Sheriffs, and the sheriffs were chosen by the Livery, the corporation of London. This fact made the king desire to seize the charter, _then he could make a grand-jury to suit himself_, out of the kinsfolk of the judge.[123] [Footnote 123: 8 St. Tr. 759, see the valuable matter in the notes, also 2 Hallam, 330 and notes.] 4. Next comes the remarkable case of the Seven Bishops, which I have spoken of already.[124] You remember the facts, Gentlemen. The king, James II., in 1688, wishing to overturn Protestantism--the better to establish his tyranny--issued his notorious proclamation, setting aside the laws of the land and subverting the English Church. He commanded all Bishops and other ministers of religion to read the illegal proclamation on a day fixed. Seven Bishops presented to him a petition in most decorous language, remonstrating against the Proclamation, and asking to be excused from reading it to their congregations. The king consulted with Father Petre,--a Jesuit, his confessor--on the matter, and had the bishops brought to trial for a misdemeanor, for publishing "a seditious libel in writing against his majesty and his government." It was "obstructing an officer." [Footnote 124: See above, p. 32.] Then the question before the trial-jury was, Did the seven bishops, by presenting a petition to the king--asking that they might not be forced to do an act against the laws of England and their own consciences--commit the offence of publishing a seditious libel; and, Shall they be punished for that act? All the judges but two, Holloway and Powell, said "Yes," and the jury were so charged. But the jury said, "Not guilty." The consequence was this last of the Stuarts was foiled in his attempt to restore papal tyranny to England and establish such a despotism as already prevailed in France and Spain. Here the jury stood between the tyrant and the Liberties of the People. Gentlemen of the Jury, let me show you how that noble verdict was received. Soon as the verdict was given, says Bishop Burnet, "There were immediately very loud acclamations throughout Westminster Hall, and the words 'Not guilty,' 'Not guilty,' went round with shouts and huzzas; thereat the King's Solicitor moved very earnestly that such as had shouted in the court might be committed. But the shouts were carried on through the cities of Westminster and London and flew presently to Hounslow Heath, where the soldiers in the camp echoed them so loud that it startled the king."[125] "Every man seemed transported with joy. Bonfires were made all about the streets, and the news going over the nation, produced the like rejoicings all England over. The king's presence kept the army in some order. But he was no sooner gone out of the camp, than he was followed with an universal shouting, as if it had been a victory obtained."[126] "When the Bishops withdrew from the court, they were surrounded by countless thousands who eagerly knelt down to receive their blessing." Of course the two judges who stood out for the liberties of the citizens, were removed from office! [Footnote 125: 12 St. Tr. 430.] [Footnote 126: Burnet's Own Times, 470. See also 2 Campbell, Justices, 89, _et seq._] 5. Here is another remarkable case, that of William Owen, in 1752. These are the facts. In 1750 there was a contested election of a member of Parliament for Westminster. Hon. Alexander Murray, an anti-ministerial member of the Commons, was denounced to the House for his conduct during the election, and it was ordered that he should be confined a close prisoner in Newgate, and that he receive his sentence on his knees. He refused to kneel, and was punished with great cruelty by the bigoted and intolerant House. Mr. Owen, who was a bookseller, published a pamphlet, entitled "The Case of Alexander Murray, Esq.," detailing the facts and commenting thereon. For this an information was laid against him, charging him with publishing a "wicked, false, scandalous, seditious, and malicious libel." On the trial, the Attorney-General, Ryder, thus delivered himself:-- "What!--shall a person appeal from that Court, who are the only judges of things belonging to them, the House of Commons I mean. An appeal! To whom? To a mob? Must Justice be appealed from? To whom? To injustice? Appeal to 'the good people of England,' 'particularly the inhabitants of Westminster'! The House of Commons are the good people of England, being the representatives of the people. The rest are--what? Nothing--unless it be a mob. But the clear meaning of this libel was an _appeal to violence_, in fact, and to stigmatize the House." "Then he charges the House with sinking material evidence; which in fact is accusing the House of injustice. This is a charge the most shocking; the most severe, and the most unjust and virulent, against the good, the tender House of Commons; that safeguard of our liberty, and guardian of our welfare." "This libel ... will be found the most powerful invective that the skill of man could invent. I will not say the skill, but the wit, art, and false contrivance of man, instigated by Satan;" "to say that this is not a libel, is to say that there is no justice, equity, or right in the world." The Solicitor-General told the Jury that they were only to inquire _if Mr. Owen published the pamphlet_, "_the rest follows of course_;" "you are upon your oaths; you judge of the facts ... and _only them_." Chief Justice Lee summed up the evidence "and delivered it as his opinion, that the _Jury ought to find the defendant guilty;_ for he thought the _fact of publication was fully proved; and if so they could not avoid bringing in the defendant guilty_." The jury returned, "Not guilty;" but Ryder, the Attorney-General, put this question, Do you think the evidence is not sufficient to convince you that _Owen did sell the book_? The foreman stuck to his general verdict, "Not guilty," "Not guilty;" and several of the jurymen said, "that is our verdict, my lord, and we abide by it." "Upon which the court broke up, and there was a prodigious shout in the hall." Then "the Jury judged as to facts, law, and justice of the whole, and therefore did not answer the leading question which was so artfully put to them."[127] Of course the insolent Attorney-General was soon made "Lord Chief Justice," and _rode_ the bench after the antiquated routine. [Footnote 127: 18 St. Tr. 1203; 14 Parl. Hist. 888, 1063; 3 Hallam, 200; 2 Campbell, Justices, 198.] This was the third great case in which the Jury had vindicated the right of speech. 6. Here is another case very famous in its day, and of great value as helping to establish the rights of juries, and so to protect the natural right of the citizens--the Trial of John Miller for reprinting Junius's Letter to the King, in 1770. Here are the facts. Mr. Miller was the publisher of a newspaper called the _London Evening Post_, and therein, on December 19, 1769, he reprinted Junius's celebrated Letter to the King. For this act, an information _ex officio_ was laid against him, wherein he was charged with publishing a false, wicked, seditious, and malicious libel. A suit had already been brought against Woodfall, the publisher of the _Public Advertiser_, in which the letter originally appeared, but the prosecution had not turned out to the satisfaction of the government, nor had the great question been definitely settled. So this action was brought against Mr. Miller, who reprinted the original letter the day of its first appearance.[128] [Footnote 128: 20 St. Tr. 803, 895, 869; Woodfall's Junius (Bohn, 1850), Preface, p. 94, Appendix, p. 471; 2 Campbell, Justices, 363; 5 Mahon.] Solicitor-General Thurlow,--whom you have met before, Gentlemen,--opened the case for the Crown, and said:-- "I have not of myself been able to imagine ... that there is a serious man of the profession in the kingdom who has the smallest doubt whether this ought to be deemed a libel or not;" "for I neither do, nor ever will, attempt to lay before a jury, a cause, in which I was under the necessity of stating a single principle that went to intrench, in the smallest degree, upon the avowed and acknowledged liberty of the subjects of this country, even with regard to the press. The complaint I have to lay before you is that that liberty has been so abused, so turned to licentiousness, ... that under the notion of arrogating liberty to one man, that is the writer, printer, and publisher of this paper, they do ... annihilate and destroy the liberty of all men, more or less. Undoubtedly the man that has indulged the _liberty of robbing upon the highway_, has a very considerable portion of it allotted to him." The defendant "has published a paper, in which, concerning the King, concerning the House of Commons, and concerning the great officers of State, concerning the public affairs of the realm, there are uttered things of such tendency and application as ought to be punished." "When we are come to that situation, when it shall be lawful for any men in this country to speak of the sovereign [George III.] in terms attempting to fix upon him such contempt, abhorrence, and hatred, there is an end of all government whatsoever, and then liberty is indeed to shift for itself." He quotes from the paper: "'He [the king] has taken a decisive personal part against the subjects of America, and those subjects know how to distinguish the sovereign and a venal Parliament, upon one side, from the real sentiments of the English nation upon the other.' For God's sake is that no libel? To _talk of the king as taking a part of an hostile sort against one branch of his subjects_, and at the same time to _connect him ... with the parliament which he calls a venal parliament_; is that no libel?" Lord Mansfield,--the bitterest enemy of the citizens' right of speech and of the trial by jury,--charged upon the jury, "The question for you to try ... is, whether the _defendant did print_, or publish, or both, a _paper of the tenor_, and of the meaning, so _charged by the information_." "If it is of the tenor and meaning set out in the information, the next consideration is, whether he _did print and publish it_." "If you ... find the defendant not guilty, the fact established by that verdict is, _he did not publish a paper of that meaning_;" "the fact finally established by your verdict, if you find him guilty, is, that _he printed_ and published a _paper, of the tenor_ and of the meaning set _forth in the information_;" "but you do _not give an opinion ... whether it is or not lawful to print a paper_ ... of the tenor and meaning in the information;" "if in point of fact it is innocent, it would be an innocent thing." Thus practically the judge left the jury only one thing to determine, Did Mr. Miller print Junius's letter to the king? That was a fact as notorious as it now is in Boston that the _Daily Advertiser_ supported the fugitive slave bill, and helped its execution, for the letter to the king was there in Mr. Miller's journal as plainly as those defences of the fugitive slave bill were in the _Advertiser_. If the jury said "guilty," the court had the defendant in their claws,--and all the wrath of the most malignant tories would fall on him and rend him in pieces. But the jury fell back on their legitimate function to determine the Fact, the Law, and the Application of the law to the fact, and returned a verdict, Not Guilty, which a great multitude repeated with loud acclaim! * * * * * 7. Next, Gentlemen, I will relate a few cases in which the government set all justice at defiance and clove down the right of speech, commonly packing submissive juries. In 1790 and following years, while the French Revolution was in progress, the thoughtful eyes of England fell on the evils of her own country. America was already a Republic, just recovering from the shock of violent separation from her mother,--young, poor, but not unprosperous, and full of future promise too obvious to escape the sagacious politicians who there saw a cause-- "----with fear of change, Perplexing Kings." The people of France, by a few spasmodic efforts, broke the threefold chain of Priest, King, and Noble, and began to lift up their head. But Saxon England is sober, and so went to work more solemnly than her mercurial neighbor. And besides, the British people had already a firm, broad basis of personal freedom to stand on. Much was thought, written, and spoken about reform in England, then most desperately needing it. The American Revolution had English admirers whom no courts could silence. Nay, at first the French Revolution delighted some of the ablest and best men in Britain, who therein beheld the carrying out of the great Principles which Aristotle and Machiavelli had laid down as the law of the historical development and social evolution of mankind. They wished some improvement in England itself. But of course there was a strong opposition made to all change. Parliament refused to relieve the evils which were made obvious. The upper House of Nobles was composed of the Elder Sons of the families which had a social and pecuniary interest in oppressing the people, and the lower House "consisted mainly of the Younger Sons of the same families, or still worse the purchased dependents" of their families. Societies were organized for Reform, such as the "London Corresponding Society," "the Friends of the People," etc., etc. The last mentioned contained many literary, scientific, and political men, and about thirty members of Parliament. Great complaints were made in public at the inequality of Representation in Parliament. Stormy debates took place in Parliament itself--such as we have not yet heard in America, but which wicked and abandoned men are fast bringing upon us. Pitt and Fox were on opposite sides. "----and such a frown Each cast at the other, as when two black clouds, With Heaven's artillery fraught, come rattling on Over the Caspian, then stand front to front, Hovering a space, till winds the signal blow To join their dark encounter in mid air." At that time the House of Commons was mainly filled with creatures of a few powerful men; thus 91 commoners elected 139 members of the commons, and 71 peers also elected 163; so 302 British members of Parliament, besides 45 more from Scotland,--347 in all,--were returned by 162 persons. This was called "Representation of the People." From the party who feared to lose their power of tyranny, there went out the decree, "Discussion on the subject of national grievances must be suppressed, in Parliament and out of Parliament." Violent attempts were made to suppress discussion. In short, the same efforts were made in England which were attempted in New York and Boston in 1850 and the two following years, till they were ended by a little sprinkling of dust. But in Britain the public mind is harsher than ever in America, and the weapons which broke in the hand of Old England were much more formidable than that which here so suddenly snapped, and with such damage to the assassinating hand. (1.) In 1792, John Lambert and two others published an advertisement in the London Morning Chronicle, with which they were connected as printers or proprietors, addressed "to the friends of free inquiry and the general good," inviting them in a peaceful, calm, and unbiased manner to endeavor to improve the public morals in respect to law, taxation, representation, and political administration. They were prosecuted, on _ex officio_ information, for a "false, wicked, scandalous, and seditious libel." The government made every effort to secure their conviction. But it failed.[129] [Footnote 129: 22 St. Tr. 923.] (2.) The same year, Duffin and Lloyd, two debtors in the Fleet Prison, one an American citizen, wrote on the door of the prison chapel "this house to let; peaceable possession will be given by the present tenants on or before the first day of January, 1793, being the commencement of liberty in Great Britain. The republic of France having rooted out despotism, their glorious example and success against tyrants renders infamous Bastiles no longer necessary in Europe." They also were indicted for a "wicked, infamous, and seditious libel," and found guilty. Lloyd was put in the pillory![130] [Footnote 130: 2 St. Tr. 1793.] (3.) In 1793, Rev. William Frend, of the University of Cambridge, published a harmless pamphlet entitled "Peace and Union recommended to the associated bodies of Republicans and anti-Republicans." He was brought to trial, represented as a "heretic, deist, infidel, and atheist," and by sentence of the court banished from the university.[131] [Footnote 131: 22 St. Tr. 523.--So late as 1820, the chief justice punished an editor with a fine of £500, for publishing an account of a trial for high treason. See 33 St. Tr. 1564, also 22 St. Tr. 298; 2 Campbell, Justices, 363, 371 _et al._] (4.) The same year, John Frost, Esq., "a gentleman" and attorney, when slightly intoxicated after dinner, and provoked by others, said, "I am for equality. I see no reason why any man should not be upon a footing with another; it is every man's birthright." And when asked if he would have no king, he answered, "Yes, no king; the constitution of this country is a bad one." This took place in a random talk at a tavern in London. He was indicted as a person of a "depraved, impious, and disquiet mind, and of a seditious disposition, and contriving, practising, and maliciously, turbulently, and seditiously intending the peace and common tranquillity of our lord the king and his laws to disturb," "to the evil example of all others in like case offending." He was sentenced to six months in Newgate, and one hour in the pillory! He must find sureties for good behavior for five years, himself in £500, two others in £100 each, be imprisoned until the sureties were found, and be struck from the list of attornies![132] [Footnote 132: 22 St. Tr. 471.] (5.) Rev. William Winterbotham, the same year, in two sermons, exposed some of the evils in the constitution and administration of England, and for that was fined £200, and sentenced to jail for four years,--a good deal more than $300 and twelve months' imprisonment.[133] [Footnote 133: Ibid. 823.] (6.) The same year, Thomas Briellat, a London pump-maker, in a private conversation said, "A reformation cannot be effected without a revolution; we have no occasion for kings; there never will be any good time until all kings are abolished from the face of the earth; it is my wish that there were no kings at all." "I wish the French would land 500,000 men to fight the government party." He was tried, found guilty, and sentenced to a fine of £100, and sent to jail for a year.[134] [Footnote 134: Ib. 909.] (7.) Richard Phillips, afterwards Sheriff of London, was sent to jail for eighteen months for selling Paine's Rights of Man; for the same offence two other booksellers were fined and sent to Newgate _for four years_! A surgeon and a physician were sent to Newgate for two years for having "_seditious libels in their possession_." Thirteen persons were indicted at once.[135] [Footnote 135: Ibid. 471. Wade, Brit. Hist. (1847), 582, _et seq._] (8.) In 1793 a charge was brought against the Rev. Thomas Fyshe Palmer, formerly a Senior Fellow of Queen's College, Cambridge, and then a Unitarian minister at Dundee. Mr. Palmer wrote an Address which was adopted at a meeting of the Friends of Liberty and published by them, which, in moderate language, called on the People "to join us in our exertions for the preservation of our perishing liberty, and the recovery of our long lost rights." He distributed copies of this address. He was prosecuted for "Leasing-making," for publishing a "seditious and inflammatory writing." The (Scotch) jury found him guilty, and the judges sentenced him to _transportation for seven years_. The sentence was executed with rigorous harshness.[136] [Footnote 136: 23 St. Tr. 237; Belsham's History of George III.] (9.) The same year Thomas Muir, Esq., was brought to trial for Leasing-making or public Libel at Edinburgh. He was a promising young lawyer, with liberal tendencies in politics, desiring the education of the great mass of the people and a reform in Parliament. He was a member of various Reform societies, and sometimes spoke at their meetings in a moderate tone recommending only legal efforts--by discussion and petition--to remedy the public grievances. His Honor (Mr. Curtis) who belongs to a family so notoriously "democratic" in the beginning of this century, and so eager in its denunciations of the Federalists of that period, knows that the law even of England--which they so much hated--allows all that. It appeared that Mr. Muir also lent a copy of Thomas Paine's "Rights of Man" to a mechanic who asked the loan as a favor. For these offences he was indicted for sedition, charged with instituting "a Society for Reform," and with an endeavor "to represent the government of this country as oppressive and tyrannical, and the legislative body as venal and corrupt." It was alleged in the indictment that he complained of the government of England as "costly," the monarchy as "useless, cumbersome, and expensive," that he advised persons to read Paine's Rights of Man, and circulated copies of a periodical called "the _Patriot_," which complained of the grievances of the people. On trial he was treated with great insolence and harshness, reprimanded, interrupted, and insulted by the agents of the government--the court. An association of men had offered a reward of five guineas for the discovery of any person who circulated the writings of Thomas Paine. Five of the fifteen jurors were members of that association,--and in Scotland a bare majority of the jurors convicts. Mr. Muir defended himself, and that ably. Lord Justice Clark charged his packed jury:-- "There are two things which you should attend to, which require no proof. The first is that the British Constitution is the _best in the world_!" "Is not every man _secure in his life, liberty, and property? Is not happiness in the power of every man?_ 'Does not every man sit safely under his own vine and fig-tree' and none shall make him afraid?" "The other circumstance ... is the state of the country during last winter. _There was a spirit of sedition and revolt going abroad._" "I leave it for you to judge whether it was perfectly innocent or not in Mr. Muir ... to go about ... among _the lower classes of the people ... inducing them to believe that a reform was absolutely necessary, to preserve their safety and their liberty_, which, had it not been for him, they never would have suspected to have been in danger." "He ran a parallel between the French and English Constitutions, and _talked of their respective taxes_ ... and gave a preference to the French." "He has brought many witnesses to prove his general good behavior, and his recommending peaceable measures, and petitioning to Parliament." "Mr. Muir might have known that _no attention could be paid to such a rabble, what right had they to representation_? He could have told them the _Parliament would never listen to their petition_! How could they think of it? A government in any country should be just like a corporation; and in this country it is _made up of the landed interest, which alone has a right to be represented_." Gentlemen, you might think this speech was made by the "Castle Garden Committee," or at the Boston "Union Meeting" in 1850, but it comes from the year 1793. Of course the jury found him guilty: the judges sentenced him to _transportation for fourteen years_! Lord Swinton quoted from the Roman law, that the punishment for sedition was _crucifixion_, or exposure _to be torn to pieces by wild beasts_, or transportation. "We have chosen the _mildest of these punishments_." This sentence was executed with great cruelty. But Mr. Pitt, then in the high places of power, declared these punishments were dictated by a "sound discretion."[137] [Footnote 137: 23 St. Tr. 117; 30 Parl. Hist. 1486, for Adams' Speech in Commons.] For like offences several others underwent the same or similar punishment. But these enormities were perpetrated by the government in Scotland--where the Roman Law had early been introduced and had accustomed the Semi-Saxons to forms of injustice foreign to the ethnologic instinct and historic customs of the parent tribe. But begun is half done. Emboldened by their success in punishing the friends of Humanity in Scotland, the ministry proceeded to attempt the same thing in England itself. Then began that British Reign of Terror, which lasted longer than the French, and brought the liberties of the People into such peril as they had not known since William of Orange hurled the last of the Stuarts from his throne. Dreadful laws were passed, atrocious almost as our own fugitive slave bill. First came "the Traitorous correspondence Bill;" next the "Habeas Corpus Suspension Act;" and then the "Seditious Practices Act," with the "Treasonable Attempts Bill" by legislative exposition establishing constructive treason! All these iniquitous measures were brought forward in Parliament by Sir John Scott--then Attorney-General, one of those North Britons who find the pleasantest prospect in Scotland is the road to London. He also was vehemently active in defending the tyranny of the Scotch judges just referred to, as indeed all judicial insolence and legal wrong.[138] He opposed all attempts to reform the law which punished with death a theft of five shillings. In two years there were more prosecutions for seditious libel than in twenty before. But Scott had his reward, and was made Lord Chancellor in 1801, and elevated to the peerage as Lord Eldon.[139] [Footnote 138: 30 Parl. Hist. 581; 31 Parl. Hist. 520, 929, 1153, _et al._; 32 Parl. Hist. 370.] [Footnote 139: 7 Campbell, 119; 1 Townsend's Judges; Life of Vic. Gibbs.] 8. Then came that series of trials for high treason which disgraced the British nation and glutted the sanguinary vengeance of the court. The government suborned spies to feign themselves "radicals," join the various Reform Societies, worm themselves into the confidence of patriotic and philanthropic or rash men, possess themselves of their secrets, catch at their words, and then repeat in court what they were paid for fabricating in their secret haunts. A ridiculous fable was got up that there was a plot to assassinate the King! Many were arrested, charged with treason--"constructive treason." On the evidence of spies of the government, hired informers--such men, Gentlemen of Jury, as Commissioner Loring and Marshal Freeman jointly made use of last year to kidnap Mr. Burns--estimable men were seized and locked up in the most loathsome dungeons of the kingdom, with intentional malignity confined amongst the vilest of notorious criminals. The judges wrested the law, constructing libels, seditions, "misdemeanors," treasons--any crime which it served their purpose to forge out of acts innocent, or only rash or indiscreet. Juries were packed by bribed sheriffs, and purchased spies were brought in evidence to swear away the liberty or the life of noble men. One of the government witnesses was subsequently convicted of ten perjuries! No man was safe who dared utter a serious word against George III. or Mr. Pitt. Here, Gentlemen, I shall mention two cases of great importance in which the jury did their duty and turned the stream of ministerial and judicial tyranny. (1.) In 1794 in a bill suspending the Habeas Corpus, Parliament declared "that a treacherous and detestable conspiracy had been formed for subverting the existing laws and constitution, and for introducing the system of anarchy and violence which had lately prevailed in France." Soon after the grand-jury for Middlesex indicted twelve men for high treason; they were members of some of the Societies mentioned just now. "The overt act charged against them was, that they had engaged _in a conspiracy to call a convention_, the object of which was to bring about a revolution in the country," but it was not alleged that there was any plot against the King's life, or any preparation for force.[140] Thomas Hardy, a shoemaker, was first brought to trial. The trial began October 28, 1794, just sixty years before Mr. Curtis's grand-jury found a bill against me. Sir John Scott, the attorney-general, in opening the Prosecution, made a _speech nine hours' long_, attempting to construct treason out of belonging to a society. All who belonged to it were to be considered guilty of "compassing the death of our Lord the King." Chief Justice Eyre, in addressing the grand-jury, referred to the act of Parliament as _proof of a conspiracy_.[141] Mr. Erskine defended Hardy in a speech which "will live forever." Seldom had English Liberty been in such peril; never did English lawyers more manfully defend it. The jury, a London jury, returned "NOT GUILTY."[142] Gentlemen, the report of the trial occupies more than twelve hundred pages in this volume,[143] and it shook the nation. The British juries for a long time had slept on their post, and allowed the enemy to enter the camp and murder its inmates. But the trial of Hardy woke up those heedless sentinels, and Liberty was safe--in England, I mean. [Footnote 140: 6 Campbell, 366.] [Footnote 141: 34 George III. c. 54.] [Footnote 142: 24 St. Tr. 199; Annual Register, 1794, p. 274; 31 Parl. Hist. 1062, _et al._] [Footnote 143: 24 St. Tr.] (2.) Still the infatuated government went on, not conscious of the spirit of Anglo-Saxon liberty it had at last roused from long, heavy and deathlike sleep, and eleven days after brought Mr. John Horne Tooke to trial. You remember, Gentlemen, that on the first anniversary of the Declaration of Independence, he was tried for publishing a notice of a meeting which raised £100 for the widows and orphan children of our citizens who fell at Lexington on the 19th of April, 1775, and for that offence was punished with fine and imprisonment.[144] After the acquittal of Hardy, the government brought Mr. Tooke to trial, relying on the same evidence to convict him which had so signally failed a fortnight before. The overt act relied on to convict him of "levying war" and "compassing the death of our Lord the King," was membership of a Reform society! Mr. Erskine defended him: "I _will_ assert the freedom of an Englishman; I will maintain the dignity of man, I will vindicate and glory in the principles which raised this country to her preëminence among the nations of the earth; and as she shone the bright star of the morning to shed the light of liberty upon nations which now enjoy it, so may she continue in her radiant sphere to revive the ancient privileges of the world which have been lost, and still to bring them forward to tongues and people who have never known them yet, in the mysterious progression of things."[145] [Footnote 144: See above, p. 35.] [Footnote 145: 25 St. Tr. 1.] Gentlemen, Horne Tooke was acquitted--the government routed and overwhelmed with disgrace, gave up the other prosecutions, and the treason trials ended. Even George III. had wit enough left to see the blunder which his ministers--the Slave Power of England in 1794--had committed, and stammered forth, "You have got us into the wrong box my Lord [Loughborough]; you have got us into the wrong box. Constructive treason won't do my Lord; constructive treason won't do." By and by, Gentlemen, other men, wiser than poor feeble-minded George III., will find out that "constructive _misdemeanors_ won't do." Of these trials, Mr. Campbell, himself a Judge, declares, "This [the conduct of the government] was more exceptionable in principle than any thing done during the reign of Charles II.; for then the fabricators of the Popish Plot did not think of corroborating the testimony of Oates and Bedloe by a public statute; and then, if the facts alleged had been true, they would have amounted to a plain case of actual treason; whereas here, admitting the truth of all the facts alleged, there was no pretence for saying that any treason contemplated by the legislature had been committed. If this scheme had succeeded, not only would there have been a sacrifice of life contrary to law, but all political 'agitation' must have been extinguished in England, as there would have been a precedent for holding that the effort to carry a measure by influencing public opinion through the means openly resorted to in our days, is a 'compassing the death of the sovereign.' The only chance of escaping such servitude would have been civil war. It is frightful to think of the perils to which the nation was exposed.... But Erskine and the crisis were framed for each other.... His contemporaries, who without him might have seen the extinction of freedom among us, saw it, by his peculiar genius, placed on an imperishable basis."[146] But Erskine without a Jury, Gentlemen, what could he have done? He could only wail, O Jerusalem, Jerusalem--when she would not! [Footnote 146: 5 Campbell, 367.] * * * * * Now, Gentlemen, let us come over to this side of the water. I shall mention some cases in which the Jury have manfully done their duty, some others in which they have allowed themselves to be browbeaten and bullied by a judge, and so have done the greatest wrong. 1. First look at the famous case of John Peter Zenger.[147] Here are the facts. In 1733, Mr. Zenger established a newspaper in New York--there was only one there before--called the "New York Weekly Journal," "containing the freshest Advices foreign and domestic." In some numbers of this he complained, modestly enough, of various grievances in the administration of the Province, then ruled by Governor Cosby. He said, "as matters now stand their [the People's] liberties and properties are precarious, and that Slavery is likely to be entailed on them and their posterity, if some past things be not amended." He published the remarks of some one who said he "should be glad to hear that the Assembly would exert themselves, as became them, by showing that they have the interest of their country more at heart than the gratification of any private view of any of their members, or being at all affected by the smiles or frowns of a Governor, both which ought equally to be despised when the interest of the country is at stake." "We see men's deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature, by which, it seems to me, trials by juries are taken away when a Governor pleases." "Who, then, in that province can call any thing his own, or enjoy any liberty longer than those in the administration will condescend to let him do it?" [Footnote 147: 3 Doc. Hist. N.Y. p. 340, 341.] In October, 1734, Chief Justice de Lancey gave a charge to the Grand-Jury, urging them to indict Mr. Zenger for a libel. He says, "It is a very high aggravation of a libel that it tends to scandalize the government by _reflecting on those who are intrusted with the administration of public affairs_, which ... has a direct tendency to breed in the public a dislike of their Governors." "If he who hath either read a libel himself, or hath heard it read by another, _do afterwards_ maliciously _read or report any part of it in the presence of others_, or _lend or show it to another, he is guilty of an unlawful publication of it._" But the Judge had not packed the Grand-Jury with sufficient care, and so no bill was found. Thereupon the Governor's Council sent a message to the General Assembly of New York, complaining of Mr. Zenger's Journal as tending "to alienate the affections of the people of this province from his majesty's government," and asking them to inquire into the said papers and the authors thereof; the Council required that the obnoxious numbers might "be _burned by the hands of the common hangman or whipper, near the pillory_." The Assembly let them lie on the table. The Court of Quarter-sessions was applied to to burn the papers; but as that body refused, the sheriff "delivered them unto the hands of _his own negro_, and ordered him to put them into the fire, which he did." Mr. Zenger was imprisoned by a warrant from the Governor, a _lettre de cachet_, and "for several days denied the use of pen, ink, and paper, and the liberty of speech with any person." An _ex officio_ information was brought against him, charging him with "malicious and seditious libel." His counsel, Messrs. Alexander and Smith, took exceptions to the proceedings. The Chief Justice would neither hear nor allow the exceptions, "for" said he, "you thought to have gained a great deal of applause and popularity by opposing this court ... but you have brought it to that point, that either we must go from the bench or you from the bar, therefore we exclude you." So "for contempt of court" their names were struck from the list of attorneys. The case came on for trial. The clerk of the Court sought to pack his jury, and instead of producing the "Freeholders' book" to select the Jury from, presented a list of forty-eight persons which he said he had taken from that book. This Honorable Court knows how easy it is to violate the law in summoning jurors; none knew it better a hundred and twenty years ago. Of the 48 some were not freeholders at all; others held commissions and offices at the Governor's pleasure; others were of the late displaced magistrates who had a grudge against Mr. Zenger for exposing their official conduct; besides, there were the governor's baker, tailor, shoemaker, candle-maker, and joiner. But it does not appear that this Judge had any Brother-in-law on the list; corruption had not yet reached that height. But that wicked list was set aside after much ado, and a Jury summoned in the legal manner. It may astonish the Court but it was really done--and a Jury summoned according to law. The trial went on. Andrew Hamilton of Philadelphia defended Mr. Zenger with law, wit, learning, and eloquence. He admitted the fact of printing and publishing the documents, and rested the defence on the truth of their assertions. The Attorney-General, Mr. Bradley, said, "supposing they were true, the law says that they are not the less libellous for that: nay, indeed, the law says, _their being true is an aggravation of the crime_." He "did not know what could be said in defence of a man that had so notoriously scandalized the governor and principal magistrates ... by _charging them with depriving the people of their rights and liberties, and taking away trials by juries, and in short putting an end to the law itself_. If this was not a libel, he did not know what was one. Such persons as did take these liberties ... ought to suffer for stirring up sedition and discontent among the people." The Chief Justice declared, "It is far from being a justification of a libel that the contents thereof are true ... since the _greater appearance there is of truth, so much the more provoking is it_!" "The jury may find that Mr. Zenger printed and published these papers, and _leave it to the court to judge whether they are libellous_!" That would be to put the dove's neck in the mouth of the fox, and allow him to decide whether he would bite it off. Mr. Hamilton replied:-- "This of leaving it to the judgment of the court whether the words are libellous or not, in effect renders Juries useless (to say no worse), in many cases." "If the faults, mistakes, nay even the vices of such a person be private and personal, and don't affect the peace of the public, or the liberty or property of our neighbor, it is unmanly and unmannerly to expose them, either by word or writing. But, when a ruler of the people brings his personal failings, but much more his vices, into his administration, and the people find themselves affected by them, either in their liberties or properties, that will alter the case mightily; and all the high things that are said in favor of rulers and of deputies, and upon the side of power, will not be able to stop people's mouths when they feel themselves oppressed, I mean in a free government. It is true _in times past it was a crime to speak truth_; and in that terrible court of Star-Chamber many worthy and brave men suffered for so doing; and yet even in that court, and in those bad times, a great and good man durst say, what I hope will not be taken amiss of me to say in this place, namely, 'The practice of informations for libels is a sword in the hands of a wicked king, and an arrant coward, to cut down and destroy the innocent; the one cannot because of his high station, and the other dares not, because of his want of courage, redress himself in another manner.' "It is a right which all persons claim and are entitled to, to complain when they are hurt; they have a right publicly to remonstrate against the abuses of power, in the strongest terms; to put their neighbors upon their guard against the craft or open violence of men in authority; and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings Heaven can bestow." "It is a duty which all good men owe to their country, to guard against the unhappy influence of ill men when intrusted with power, and especially against their creatures and dependants, who as they are generally more necessitous, are surely more covetous and cruel." According to the Judge the Jury had only one question before them, "Did Zenger publish the words charged in the information?" That fact was clear; nay, he did not himself deny it. He confessed it in court. But the jury fell back on their rights and duties to decide the Question of Fact, of Law, and of the Application of the Law to the Fact, and returned "NOT GUILTY," "upon which there were three huzzas in the Hall." Had this Honorable Court been then in existence I suppose it would have talked of indicting the jurors for "perjury," and would doubtless have had its labor for its pains. For the Common Council of New York presented Mr. Hamilton with a costly gold box and the freedom of the city. Gentlemen, this took place one hundred and twenty years ago. Forty years before the Revolution, Andrew Hamilton helped lay the "brilliant foundation of liberty," whereon another Hamilton was also to raise up noble walls of freedom. Gentlemen of the Jury, by Wisdom is a house builded, but the foolish plucketh it down with her own hands. Will you allow that to be done? What if the jury in 1735 had been faithless? The axe which smote down Zenger in New York, bloody and cruel, would have shorn off the heads of Otis and Quincy, and Adams and Hancock at Boston; the family of Scroggs alone would be held in honor in New England.[148] [Footnote 148: 17 St. Tr. 675.] Gentlemen, it once happened in New York that Governor Nicholson was offended with one of the clergymen of the Province. He met him on the road one day, and "as it was usual with him (under the protection of his commission) used the poor minister with the worst of language, threatened to cut off his ears, slit his nose, and at last to shoot him through the head." The minister, "being a reverend man, continued all this time uncovered in the heat of the sun, until he found an opportunity to fly for it, and coming to a neighbor's house fell ill of a fever and wrote for a doctor," relating the facts and concluding that the governor was crazy, for no man in his right mind would behave so ill. The doctor showed the letter; the governor brought a prosecution against the minister for publishing a "scandalous, wicked, and seditious libel." No doubt he could have found a judge even then who would twist the law so as to make the letter "sedition" and "libel;" nay, perhaps he could construct a jury so as to secure a conviction, but before it reached trial the prosecution was stopped by the order of Queen Anne. 2. In 1816, in Massachusetts, there occurred the celebrated case of Commonwealth _vs._ Bowen, to which I shall again refer in a subsequent part of this defence. These are the facts. In September, 1815, Jonathan Jewett was convicted of murder in Hampshire county, Massachusetts, and sentenced to be hanged on the 9th of the following November. He was confined at Northampton, and hung himself in his cell on the night preceding the morning appointed for his public execution. George Bowen was confined in the same jail, in an apartment adjacent to Jewett's, and in such a situation that they could freely converse together. Bowen repeatedly and frequently advised and urged Jewett to destroy himself and thus disappoint the sheriff and the expectant people. He did so, and the coroner's jury returned that he committed suicide. But nevertheless, Bowen was indicted for the wilful murder of Jewett. It was charged that he "feloniously, wilfully, and of his malice aforethought, did counsel, hire, persuade, and procure the said Jewett the said felony and murder of himself to do and commit;" or that he himself murdered the said Jewett by hanging him. At the trial Attorney-General Perez Morton contended that Bowen "was guilty of _murder as principal_;" and he cited and relied chiefly on the following authority from the Reports of our old friend Kelyng. "Memorandum, that my brother _Twisden_ showed me a report which he had of a charge given by Justice _Jones_ to the grand-jury, at the King's Bench barre, _Michaelmas Term_, 9 _Car._ 1, in which he said, that poisoning another was murder at common law. And the statute of 1 _Ed._ 6, was but declaratory of the common law, and an affirmation of it. If one drinks poison by the provocation of another, and dieth of it, this is murder in the person that persuaded it. And he took this difference. If A. give poison to J.S. to give to J.D., and J.S. knowing it to be poison, give it to J.D. who taketh it in the absence of J.S., and dieth of it; in this case J.S., who gave it to J.D., is principal; and A. who gave the poison to J.S., and was absent when it was taken, is but accessory before the fact. But if A. buyeth poison for J.S., and J.S., in the absence of A., taketh it and dieth of it, in this case A., though he be absent, yet he is principal. So it is if A. giveth poison to B. to give unto C.; and B., not knowing it to be poison, but believing it to be a good medicine, giveth it to C., who dieth of it; in this case A., who is absent, is principal, or else a man should be murdered, and there should be no principal. For B., who knoweth nothing of the poison, is in no fault, though he gave it to C. So if A. puts a sword into the hands of a madman, and bids him kill B. with it, and then A. goeth away, and the madman kills B. with the sword, as A. commanded him, this is murder in A., though absent, and he is principal; for it is no crime in the madman, who did the fact by reason of his madness."[149] [Footnote 149: See the case in Kelyng's Reports (London, 1708), p. 52. The opinion of Justice _Jones_ was only the charge of an inferior judge given to the grand-jury in 1634.] Mr. Morton also laid down this as law, "_the adviser of one who commits a felony of himself is a murderer_." He might have added, "the adviser of one who breaks into his own house is a burglar." Chief Justice Parker--who once declared that the jury had nothing to do with the harshness of a law--charged the jury that the important question for them was, Did Bowen's advice induce Jewett to kill himself? if so, they were to find him guilty of wilful murder! "The community has an interest _in the public execution_ of criminals [the crowd having an _interest in the spectacle_] and to take such an one out of the reach of the law [by advising him to self-destruction] is no trivial offence." "_You are not to consider the atrocity of this offence in the least degree diminished by the consideration that justice was thirsting for its sacrifice_; and that but a small portion of Jewett's earthly existence could, in any event, remain to him."[150] [Footnote 150: 13 Mass. Rep. 356.] There was no doubt that Bowen advised Jewett to commit suicide; but the jury, in defiance of the judge's charge and Mr. Kelyng's law, nevertheless returned "NOT GUILTY." Here, Gentlemen, is a remarkable instance of a judge, in private a benevolent man, perverting his official power, and constructing the crime of murder out of advice given to a man to anticipate a public execution by privately hanging himself! The law relied on was the Memorandum of the charge to a grand-jury made by a judge who notoriously broke the fundamental laws of England, by declaring that the king had a constitutional right to imprison, at will and as long as he liked, any of his subjects without trial, even members of Parliament for words uttered in public debate; and also the right to levy ship-money contrary to the Acts of Parliament. This charge was made in the tyrannical reign of Charles I. in 1634, by a tyrannical judge. There was no report, only _a memorandum_ of it, and that not printed till seventy-four years after! It had not the force of law even then: it was only the memorandum of the "opinion" of a single judge, not even the "opinion" of the full court. The memorandum is contained in Kelyng's Book, which Lord Campbell calls "a folio volume of decisions in criminal cases, which are of no value whatever, except to make us laugh at some of the silly egotisms with which they abound."[151] On such authority in 1816 would even a Massachusetts court, with a judge who was a kindly man in private, dash away the life of a fellow-creature,--with such mockery of law! But, Gentlemen, the jury at that time did not slumber; they set the matter right, and did justice spite of Judge Kelyng and his "law." They made nothing of the judge's charge! [Footnote 151: 2 Campbell, Judges, 406.] * * * * * Gentlemen of the Jury, I will now mention some cases of gross injustice perpetrated by the Federal Courts of the United States. The tenth article of amendments to the Constitution provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People." The Constitution itself confers no Common Law Jurisdiction on the Government. Neither the People nor their Representatives had ever decreed the Common Law of England to be a part of the law of the United States. Yet, spite of the absence of positive enactment and the express words of the above amendment to the Constitution, the Supreme Court at once assumed this jurisdiction. In 1799, Chief Justice Ellsworth said, "the Common Law of this country remains the same as it was before the Revolution;"[152] and proceeded on that supposition to exercise the powers of English Judges of Common Law, undertaking to punish men for offences which no Act of Congress forbid. You see at once what monstrous tyranny would follow from that usurpation. Had the English Common Law power of punishing for "seditious libel," for example, been allowed to the Federal court, Gentlemen, you know too well what would follow. But this monstrous assumption was presently brought to an ignominious end; and strange as it may appear, by one of the judges of the court itself. Samuel Chase of Maryland, one of the signers of the Declaration of Independence, had been an Anti-Federalist and a strong State-Right's man, as such insisting on a strict construction of the Constitution. Singular as it may appear he was made a Judge in 1796, and what is yet more surprising, in 1798, declared "the United States as a Federal government, had no Common Law," and thus ended this claim.[153] But tyranny did not end; nay, he himself, a man of uncommon powers and legal attainments, became a most atrocious example of Judicial despotism. [Footnote 152: Wharton, State Trials, 653. See too Virginia Resolutions (Richmond, 1850), Preface, xiii. _et seq._; Virginia Resolutions by Madison, and his Report thereon; Kentucky Resolutions by Jefferson, in 4 Eliot's Debates (1836).] [Footnote 153: Wharton, 197; 3 Dallas, 384; see 5 Hildreth, 230.] 1. In 1791 a direct tax was levied by Act of Congress on all lands and houses; excise officers were to ascertain their value. The "Alien and Sedition Laws" were also passed the same year. The execution of the law relative to the direct tax was resisted in Northampton county, Penn., and some prisoners rescued from an officer of the United States. The President, Mr. Adams, issued his proclamation. In 1799 John Fries was arrested on the charge of treason. The overt act alleged was resistance to that one special law of Congress. Judge Iredell charged the Grand-Jury, "You have heard the government as grossly abused as if it had been guilty of the vilest tyranny." Had he read the private correspondence of the Cabinet, he might have found other specimens of "abuse." He defended both the Alien and Sedition Laws.--They were "constitutional" and "proper."[154] [Footnote 154: See a defence of them in 2 Gibbs's Administration, 74, 78; also 162.] Mr. Fries was indicted for treason. The Judiciary Act of Congress of 1789 provides that "in cases punishable with death the trial shall be had in the county where the offence was committed; or when that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence." The offence was committed in Northampton county, and he was indicted and brought to trial in Philadelphia county, nor could the court be induced to comply with the statute! The government laid down the law and constructed treason with the usual ingenuity of officials working by the job. Judge Kelyng's loose opinion that an attack on a brothel was high treason, was cited by Mr. Rawle, the District Attorney, as good law.[155] What "in England is called constructive levying of war, in this country must be called direct levying of war." Judge Peters charged that though force was necessary to constitute the crime of treason, yet "the quantum of force is immaterial," of course it may be wielding a wheat straw, or a word, I suppose. "The doctrine of constructive treason has produced much real mischief in another country" [England]. "The _greater part of the objections to it are irrelevant here_." [Footnote 155: Wharton, 539; Kelyng, R. 70, 75.] Fries was found guilty. His counsel moved for a new trial, on the ground that before the trial one of the jurors had declared, "Fries ought to be hung;" "I myself shall be in danger unless we hang them all;" that the jurors were irregularly drawn, and the trial was not held in the county where the offence was committed. Judge Iredell ruled that it was "_a high contempt_ at this time _to call for a renewal of an argument whereon a solemn, decisive opinion was delivered_." Judge Peters declared the juror had "said no more than all friends to the laws and the government were warranted in thinking and saying." Yet a new trial was granted. The new trial was held before Judge Chase, who had, as Mr. Wharton says, a "singular instinct for tumults which scents it at a distance ... and irresistibly impels a participation in it," "moving perpetually with a mob at his heels." Yet "apart from his criminal jurisdiction he was reckoned a wise and impartial judge, a master of the Common Law, and a thorough and indefatigable administrator of public functions." "It was this despotic ardor of temperament ... which made him, when a young man, employ with resolute audacity the engine of popular revolt, and which led him when older, and when in possession of that power against which he had so steadily warred, to wield with the same vigor the sword of constituted authority."[156] Gentlemen, he was like many that this Honorable Court perhaps have known, who were privateering Democrats in 1812, and Kidnapping Whigs in 1850. To him we are indebted for the invaluable decision that the United States courts have no Common Law jurisdiction. [Footnote 156: 4 Hildreth, 571; 1 Gibbs, 300; 2 Gibbs, 419.] At this new trial he treated the defendants' counsel in such a manner that they abandoned the case, and left the Prisoner without defence. The District Attorney, taking his law from Kelyng and similar servants of British despots, laid it down that treason "may consist in _assembling together in numbers_, and by actual force, or by terror, _opposing any particular law_;" "_Force need not be used_ to manifest this spirit of rebellion." "Even _if the matter made a grievance of was illegal, the demolition of it_ in this way _was_, nevertheless, _treason_," "a rising with intent by force to prevent the execution of a law ... preventing the marshal executing his warrants, and preventing the other officers ... amounted to levying war." "In short an opposition to the acts of Congress in whole or in part [that is to _any one law_] ... either by collecting numbers, or by a display of force ... which should operate ... either throughout the United States, or in _any part thereof to procure a repeal or a suspension_ of the law ... this offence be considered to be _strictly_ treason." Judge Chase laid it down as law not to be questioned in his court, "that any ... rising of any body of the people ... to attain by force ... any object of a great public nature ... is a levying of war:" "any such ... rising to resist ... the execution of any statutes of United States ... or for any other object of a general nature or national concern, under any pretence as that the statute was unjust ... or unconstitutional is a levying war;" "_any force ... will constitute the crime_ of levying war." If that be law, then an old negro woman who, with a dishcloth, frightens officer Butman away from kidnapping her granddaughter in Southac street, does thereby levy war against the United States and commits the crime of treason. The jury, overborne by the assumptions of the judge, or ignorant of their duties and their rights, allowed this tyrannical court to have its way, surrendered the necks of the people, and brought in a verdict of guilty. Judge Chase made an insolent address to the prisoner and sentenced him to death. But Mr. Adams, with a remarkable degree of justice, gave him a full pardon, and drew down upon himself thereby the wrath of his cabinet.[157] [Footnote 157: Wheaton, 458; 9 Adams's Works, 57; 2 Gibbs, 360; 5 Hildreth, 366; Chase's Trial, 18.] 2. In 1788 Mathew Lyon, a native of Ireland, a Revolutionary soldier, a member of congress, and editor of a newspaper in Vermont, was brought to trial under the Sedition Law, for a false, malicious, and seditious libel. He had published in his newspaper a somewhat severe attack on the Federalists then in power. The article, alleged to be "seditious," was a letter written and mailed at the seat of government seven days before, and published nine days after, the passage of the Sedition Law itself. It was as much a political trial, Gentlemen, as this--purely political. Judge Patterson--United States Circuit Judge of Vermont--charged that the jury had nothing whatever to do with the constitutionality of the Sedition Law. "Congress has said that the author and publisher of seditious libels is to be punished." "The only question you are to determine is ... Did Mr. Lyon publish the writing?... Did he do so seditiously, with the intent of making odious or contemptible the President and government, and bringing them both into disrepute?" Mr. Lyon was found guilty, and punished by a fine of $1,000 and imprisonment for four months. The "Seditious Libel" would now be thought a quite moderate Editorial or "Letter from our Correspondent." His imprisonment was enforced with such rigor that his constituents threatened to tear down the jail, which he prevented.[158] [Footnote 158: Wharton, 333; 4 Jefferson's Works (1853), 262.] 3. In 1799 Thomas Cooper, a native of England, residing at Northumberland, Pennsylvania, published a handbill reflecting severely on the conduct of President Adams. He was prosecuted by an Information _ex officio_, in the Circuit Court for Pennsylvania, and brought to trial before Judge Chase, already referred to, charged with a "false, scandalous, and malicious attack" on the President. Mr. Chase charged the jury, "A Republican government can only be destroyed in two ways: the introduction of luxury, or the licentiousness of the press. This latter is the more slow, but most sure and certain means of bringing about the destruction of the government." He made a fierce and violent harangue, arguing the case against the defendant with the spirit which has since become so notorious in the United States courts in that State. The pliant jury found Mr. Cooper guilty, and he was fined $400 and sent to jail for six months. He subsequently became a judge in Pennsylvania, as conspicuous for judicial tyranny as Mr. Chase himself, and was removed by Address of the Legislature from his seat, but afterwards went to South Carolina where he became Professor at her college, and a famous nullifier in 1830.[159] [Footnote 159: Wharton, 659.] 4. In 1799, or 1800, Mr. Callender, a native of England, then residing at Richmond, in Virginia--a base and mean fellow, as his whole history proved, depraved in morals and malignant in temper--published a pamphlet called "The Prospect before us," full of the common abuse of Mr. Adams and his administration. He was indicted for a false, malicious, and seditious libel, and brought to trial before Judge Chase who pressed the Sedition Law with inquisitorial energy and executed it with intolerant rigor.[160] As he started for Richmond to hold the trial, he declared "he would teach the lawyers in Virginia the difference between the liberty and the licentiousness of the press." He told the marshal "not to put any of those creatures called Democrats on the jury,"--it does not appear that he had his own Brother-in-Law on it however;--"he likened himself to a schoolmaster who was to turn the unruly boys of the Virginia courts over his knee and give them a little wholesome chastisement." [Footnote 160: Wharton, 45, 688; Chase's Trial, 33; 4 Jefferson, 445, 447.] Some of the ablest lawyers in Virginia were engaged for the defence. But they could not secure any decent regard to the common forms of law, or to the claims of justice. He would not grant the delay always usual in such cases, and indispensable to the defence. He refused to allow the defendants' counsel to examine their most important witness, and allowed them to put none but written questions approved of by him! The defendant was not allowed to prove the truth of any statements, alleged to be libellous, by establishing the truth of one part through one witness and of another through a different one. He would not allow him to argue to the jury that the law was unconstitutional. "We all know that juries have the right to decide the law as well as the fact, and the Constitution is the Supreme law of the land." "Then," said Mr. Wirt, "since the jury have a right to consider the law, and since the Constitution is law, it is certainly syllogistic that the jury have a right to consider the Constitution;" and the judge exclaimed, "a _non sequitur_, Sir!" "Sit down, Sir!" Mr. Wirt sat down. The judge declared "a right is given to the jury to determine what the law is in the case before them, and not to decide whether a statute is a law or not, or whether it is void, under an opinion that it is unconstitutional." "It appears to me the right now claimed has a direct tendency to dissolve the Union." "No citizen of knowledge and information ... will believe, without very strong and indubitable proof, that Congress will, intentionally, make any law in violation of the Federal Constitution." "If such a case should happen, the mode of redress is pointed out in the Constitution." It was obvious that Congress had made laws in violation of the Constitution, and he insisted that the jury should enforce those laws against their own conscience. After all his violent injustice he of course declared "the decisions of courts of justice will not be influenced by political and _local_ principles and prejudices." The packed jury found the prisoner guilty. He was fined $200 and sent to jail for nine months. But Virginia was too high-spirited to bear this. Nay, Gentlemen of the Jury, the whole Nation then was too fond of justice and liberty to allow such wickedness to proceed in the name of law. "Virginia was in a flame;" the lawyers "throughout the country were stung to the quick." They had not been so long under the slave-power then as now. At this day, Gentlemen, such conduct, such insolence, yet more oppressive, rouses no general indignation in the lawyers. But then the Alien and Sedition Laws ruined the Administration, and sent Mr. Adams--who yet never favored them--from his seat; his successor, Mr. Jefferson, says, "_I discharged every person under punishment_, or prosecution, _under the Sedition Law, because I considered and now consider, that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image_."[161] Judge Chase was impeached by the House of Representatives, tried by the Senate, and only escaped condemnation by the prejudice of the political partisans. As it was, a majority were in favor of his condemnation. But the Constitution, properly, requires two thirds. Judge Chase escaped by this provision. But his influence was gone. [Footnote 161: 4 Jefferson, Correspondence in Wharton, 721.] The Alien and Sedition Laws, which sought to gag the People, and make a Speech a "misdemeanor," soon went to their own place; and on the 4th of July, 1840, Congress passed a law to pay Mr. Lyon and others the full amount of the fine and costs levied upon them, with interest to the date of payment: a Committee of the House had made a report on Lyon's case, stating that "the law was unconstitutional, null, and void, passed under a mistaken exercise of undelegated power, and that the mistake ought to be remedied by returning the fine so obtained, with interest thereon."[162] Just now, Gentlemen, Judge Chase and the principles of the Sedition Law appear to be in high favor with the Federal Courts: but one day the fugitive slave bill will follow the Alien and Sedition Bill, and Congress will refund all the money it has wrenched unjustly from victims of the Court. There is a To-morrow after to-day, and a Higher Law which crushes all fugitive slave bills into their kindred dust. [Footnote 162: 2 Sess. 26th, Cong. Doc. 86, Ho. Rep.; Wharton, 344, 679. See also Virginia Resolutions (1850), and the remarks in the Debates. Then Virginia was faithful to State Rights, and did a service to the cause of Liberty which no subsequent misconduct should make us forget.] * * * * * Gentlemen, allow me to vary this narrative of British and American despotism by an example from a different nation. I will refresh you with a case more nearly resembling that before you; it is an instance of German tyranny. In 1853, Dr. Gervinus, Professor of History in the University of Heidelberg in Germany, published this little volume of about 200 pages,[163] "An Introduction to the History of the 19th Century." Mr. Gervinus is one of the most enlightened men in the world, a man of great genius for the philosophical investigation of human history, and enriched with such culture and learning as is not common even in that home of learned men. His book, designed only for scholars, and hardly intelligible to the majority of readers even in America, sets forth this great fact,--The democratic tendency of mankind shown in all history. [Footnote 163: 2 Einleitung in die Geschichte des neunzehnten Jahrhunderts; Leipzig, 1853. 8vo. pp. 181.] Gervinus was seized and brought to trial on the 24th of February, 1853, at Mannheim, charged with publishing a work against constitutional monarchy, intending thereby to depose the lawful head of the State, the Grand Duke Charles Leopold, and with changing and endangering the constitution, "disturbing the public tranquillity and order, and incurring the guilt of High Treason." In short he was charged with "obstructing an officer" and attempting to "dissolve the Union," with "levying war." For his trial the judge purposely selected a small room, though four times larger than what now circumscribes the dignity of this Honorable Court; he did not wish the people to hear Gervinus's defence. But I will read you some extracts from the preface to the English translation of his book:-- "I offer nothing purely theoretical or speculative, and as few opinions and conclusions as can possibly be given in a historical narrative. The work finally reaches a period when the Present and the Future become its subject, and when therefore it can no longer relate any events of history which have been completed; and is confined to the simple statement of _the Fact_ that opposite opinions exist, and may yet be advanced, concerning the problem of the Future. These opinions are themselves weighed against one another, but their value is not determined by dogmas, or phrases, or declamations, but simply by facts. If the balance incline towards a more liberal form of government, towards democratic institutions, and therefore towards self-government, and the participation of the many rather than of the few in the affairs of the State, I am not to blame, nor is it my ordinance, but that of History and of Providence. My work is only (what all historical narrative should be) a vindication of the decrees of Providence; and to revolt against them appears to me neither pious in a moral point of view, nor wise in a political. That which is proved by the most remarkable facts of History, will not be altered in the smallest degree by the suppression of my work, or by my condemnation. The charge on this head is an absurdity, since no rational end can be attained by it. It aims at the suppression of a truth which, should _I_ not tell it, will be ever louder and louder proclaimed by the _Facts of History_. "To believe such a thing possible is a proof how limited an idea exists of the eager inquiry going on after knowledge--and truth, the source and origin of all knowledge. There will always be so eager a demand for a history of the Present time, that, even should _I_ be prevented, ten others would arise, only to proclaim the louder, and to repeat the oftener, the truth which is here suppressed. To believe that the philosophy of History can be silenced by persecution, argues an entire ignorance even of the external mechanism of philosophy. A political pamphlet, intended to serve a particular purpose at a particular period, may be suppressed. The author of such a pamphlet, bent on agitation, can easily console himself for its suppression. It has cost him little time and trouble; it is only a means to an end, one means out of many means, any of which, when this is lost, will serve the author as well. But it is not thus with philosophical works, it is not thus with the work before me. This book is deeply rooted in the vocation of my whole life, and is the end of my philosophical research; I have prepared myself for it by the labor of years, and the labor of years will be necessary for its completion. I have reached a time of life when I can neither change my vocation, nor even cease to labor in this vocation. I am also so imbued with my philosophy, that even if I could change I would not. I may be hindered in the prosecution of this work for four months, but in the fifth I shall return to it. For a judicial sentence cannot arrest (like a mere pamphlet) the philosophical scheme interwoven into a whole existence." "If it is possible that this 'Introduction' can be condemned in Germany, that it can be prohibited, that by these means the work should be strangled in its birth, then the philosophy of history has no longer a place in Germany. The tribunal of Baden will have given the first blow, in pronouncing judgment on a matter which is purely philosophical, and Germany, whose freedom of philosophical research has been her pride and her boast, of which even the various administrations of the nation have never been jealous, will receive a shock such as she never before sustained." "My book is on so strictly a philosophical plan, and treats of such comprehensive historical questions, that, properly, no judgment of any value could be pronounced upon it but by the professed historian, of whom there are not two dozen in all Germany. Among them there has not, to this hour, been found one competent to give an opinion in a few weeks on a book which is the fruit of half a life. On the other hand, there was soon a whole set of fanatical partisans and obstreperous bunglers in a neighboring press, who in eight days had condemned this work, in some instances, by calling it an historical commonplace, and in others, a political pamphlet with '_destructive tendencies_.' At the same time, and in a manner easily accounted for, under the influence of such an expression of public opinion, and almost before any other could make itself heard, accusations were made against the book, and it was confiscated. Let no one take it amiss if, in the urgency of my defence, _I_ for a moment lay aside modesty, as far as such modesty might prove injurious to my cause. My work demonstrates a law of historical development, which I do not claim as my property, or as originating in me, but which has been demonstrated more than two thousand years ago by the greatest thinker of all ages, derived from observations on the history of the Grecian State. To repeat a law which has been already demonstrated, ought to appear but a trifling circumstance, and indeed might merit the term of an historical commonplace; we could even suppose that it might be mentioned in a popular as well as in a philosophical book. Nevertheless this law has scarcely been twice repeated in the course of two thousand years, and then only by two imitators, who scarcely understood its whole purport, though they were the most thinking heads of the most thinking nations--Machiavelli in Italy, and Hegel in Germany. I solemnly ask of the whole philosophical world if my words can be gainsaid, and to name for me the third, by whom the Aristotelian law, of which I speak, has been repeated and understood. I have ventured to consider the thought of Aristotle, and to apply it to the history of modern European States, and I found it confirmed by a series of developments which have occupied two thousand years. I also found that the whole series of events confirmatory of this law (itself deduced from experience) are not yet entirely fulfilled. Like the astronomer, who, from a known fraction of the path of a newly discovered planet, calculates its whole course, I ventured to divine that which is still wanting, and which may yet take centuries to complete. I turned silently to those whose profession was the study of history, to prove the justice of my calculations; I handed my book over to coming generations and coming centuries, with the silent demand, when the required series of events shall be fulfilled, then to pronounce the final sentence, whether this law, and its purport as now explained, be just or not. This is the philosophical character, and these the contents of my book--no more than was indispensably necessary to make this calculation. And now comes the charge, and pronounces that in the character of a pamphleteer, I have endeavored to excite a revolution in the Grand Duchy of Baden, or in the German Confederation." On the 8th of March--it should have been the _fifth_--the thing came to a close. On account of "his hostility to constitutional monarchy, and his declaration of its weakness, his denial of its good-will [towards the people], and his representing that the American Democracy was a universal necessity and a desirable fact," sentence was pronounced against him, condemning him to an imprisonment of four months, and ordering his book to be destroyed. There was no Jury of the People to try him! Here our own Court has an admirable precedent for punishing me for a word.[164] [Footnote 164: See Preface to English Translation of Gervinus (London, 1853); and Allg. Lit. Zeitung für 1853, pp. 867, 883, 931, 946, 994, 1131.] But even in Massachusetts, within twenty years, an attempt was made to punish a man for his opinions on a matter of history which had no connection with politics, or even with American Slavery. In July, 1834, Rev. George R. Noyes, a Unitarian Minister at Petersham, a retired scholar, a blameless man of fine abilities and very large attainments in theological learning, wrote an elaborate article in the Christian Examiner, the organ of the "Liberal Christians" in America, in which he maintained that Jesus of Nazareth is not the Messiah predicted in the Old Testament. "It is difficult," said this accomplished Theologian, "to point out any predictions which have been properly fulfilled in Jesus." Peter and Paul found the death and resurrection of Jesus in the 16th Psalm, but they "were in an error," which should not surprise us, for "the Evangelists and Apostles never claimed to be _inspired reasoners and interpreters_;" "they partook of the errors and prejudices of their age in things in which Christ had not instructed them." "The commonly received doctrine of the inspiration of all the writings included in the Bible, is a millstone hung round its neck [the neck of Christianity], sufficient to sink it." The article was written with remarkable candor and moderation, and indicated a devout and holy purpose in the author. The doctrines were by no means new. But Hon. James T. Austin, was then Attorney-General of the State; his attention being called to it by an anonymous writer in a newspaper, he attacked Mr. Noyes's article, thus giving vent to his opinion thereon: "He considers its learning very ill bestowed, its researches worse than useless, and that its tendency is to strike down one of the pillars on which the fabric of Christianity is supported." "Its tendency is to shock the pious,--confound the unlearned,--overwhelm those who are but moderately versed in the recondite investigations of theology, and above all to open an arsenal whence all the small wits of the infidel army may supply themselves with arms. Its greater evil is to disarm the power of public opinion." "It certainly disarms to a great degree the power of the law."[165] [Footnote 165: 16 Examiner, 321; 17 ibid. 127; Boston Atlas, July 8th and 9th, 1834.] Gentlemen, suppose it had not been necessary to submit the matter to a Jury, what would the right of freedom of conscience be worth in the hands of such a man, "dressed in a little brief authority?" It was said at the time that the author was actually presented to the Grand-Jury, and an attempt made to procure an indictment for Blasphemy, or Misdemeanor. I know not how true the rumor was. The threat of prosecution came to nought, and Dr. Noyes, one of the most scholarly men in America, is now Professor of Theology in the Divinity School at Cambridge, and an honor to the liberal sect which maintains him there. * * * * * Gentlemen, when laws are unjustly severe, denouncing a punishment highly excessive, the juries refuse to convict. Examples of this are very common in trials for capital offences, now that the conscience of moral men has become so justly hostile to the judicial shedding of blood. There is no doubt with the Jurors as to the Fact, none as to the Law; but they say it is unjust to apply such a law to such a fact and hang a man. The Jury exercising their moral discretion, spite of the judge, and spite of the special statute or custom, are yet faithful to their official obligation and manly duty, and serve Justice, the ultimate End and Purpose of Law, whereto the statutes and customs are only provisional means. Foolish judges accuse such juries of "Perjury;" but it is clear enough, Gentlemen, where the falseness is. "Do you take notice of that juryman dressed in blue?" said one of the judges at the old Bailey to Judge Nares. "Yes." "Well, then, take my word for it, there will not be a single conviction to-day for any capital offence." So it turned out. The "gentleman in blue" thought it unjust and wicked, contrary to the ultimate Purpose of law, to hang men, and he was faithful to his juror's oath in refusing to convict. Of course he did not doubt of the Fact, or the Law, only of the Justice of its Application. One day there will be a good many "gentlemen in blue." To prevent this moral independence of the jury from defeating the immoral aim of the government, or of the judges, or the legislature--the court questions the jurors beforehand, and drives off from the panel all who think the statute unfit for such application. Gentlemen, that is a piece of wicked tyranny. It would be as unfair to exclude such men from the legislature, or from the polls, as from the jury box. In such cases the defendant is not tried by his "country," but by a jury packed for the purpose of convicting him, spite of the moral feelings of the people. Sometimes the statute is so framed that the jurors must by their verdict tell an apparent falsehood, or commit a great injustice. When it was a capital offence in England to steal forty shillings, and evidence made it plain that the accused had actually stolen eight or ten times that value, you all know how often the jurors brought in a verdict of "_stealing thirty-nine shillings_."[166] They preferred to tell what seemed to be a lie, rather than kill a man for stealing fifteen or twenty dollars. The verdict of NOT GUILTY would have been perfectly just in form as in substance, and conformable to their official oath. [Footnote 166: See several cases of this kind in Sullivan on Abolition of Punishment of Death, (N.Y. 1841), 73. Rantoul's Works, 459.] Gentlemen, tyrannical rulers, and their servants, despotic and corrupt judges, have sought to frighten the juries from the exercise of all discretion--either moral or intellectual. To that end they threaten them before the verdict, and punish them when they decide contrary to the wish of the tyrant. To make the jurors agree in a unanimous verdict, they were kept without "fire or water or food or bed" until they came to a conclusion; if eleven were of one mind and the twelfth not convinced, the refractory juror was fined or put in jail.[167] If the verdict, when unanimously given, did not satisfy the judge or his master, the jurors were often punished.[168] I have already shown you how the juries were treated--with fine and imprisonment--who acquitted Throckmorton and Penn.[169] When John Lilburne was tried for his life in 1653, he censured the authorities which prosecuted him and appealed to the "honorable Jury, the Keepers of the Liberties of England:" they found him Not Guilty, and were themselves brought before the council of State for punishment. "Thomas Greene of Snow-hill, tallow chandler, Foreman of the Jury, being asked what the grounds and reasons were that moved him to find ... Lilburne not guilty, ... saith '_that he did discharge his conscience in what he then did, and that he will give no further answer to any questions which shall be asked him upon that matter_.'"[170] This was in the time of Cromwell; but as the People were indignant at his tyrannical conduct in that matter, and his insolent attempt to punish the jurors, they escaped without fine or imprisonment. Indeed more than a hundred and twenty-five years before, Thomas Smith had declared "such doings to be very violent, tyrannical, and contrary to the liberty and customs of the realm of England." Sir Matthew Hale said at a later day, "It would be a most unhappy case for the judge himself, if the prisoner's fate depended upon his directions; unhappy also for the prisoner; for if the judge's opinion must rule the verdict, the trial by jury would be useless."[171] Judge Kelyng was particularly hostile to the jury, throwing aside "all regard to moderation and decency." He compelled the grand-jury of Somersetshire to find an indictment against their consciences, reproaching Sir Hugh Wyndham, the foreman, as the "Head of a Faction." He told the jury, "You are all my servants, and I will make the best in England stoop!" He said it was a "misdemeanor" for them to discriminate between murder and manslaughter; that was for the court to determine. But, Gentlemen, it does not appear that he had his brother-in-law on that grand-jury. Several persons were indicted for "attending a conventicle;" the jury acquitted them contrary to his wish, and he fined them $334 apiece, and put them in jail till it was paid. On another occasion, this servile creature of Charles II. fined and imprisoned all the jurors because they convicted of _manslaughter_ a man whom he wanted to hang. But for this conduct he was accused in the House of Commons, and brought to answer for it at their bar.[172] [Footnote 167: Forsyth, 241, 243.] [Footnote 168: Thomas Smith, Commonwealth, (London, 1589,) b. iii. c. 1. Hargrave, in 6 St. Tr. 1019.] [Footnote 169: See above, p. 95. 1 St. Tr. 901; 6 St. Tr. 967, 969, 999; 21 St. Tr. 925.] [Footnote 170: 1 St. Tr. 445.] [Footnote 171: 6 St. Tr. 967, note; Bushell's Case, Ibid. 999, and Hargrave's note, 1013.] [Footnote 172: 2 Campbell, Justices, 405; 6 St. Tr. 910; Kelyng, 50; 3 Hallam, 6, note; Commons Journals, 16 Oct. 1667.] In 1680 Chief Justice Scroggs was brought up before the House of Commons for discharging "a refractory grand-jury"--such an one as was discharged in Boston last July: Sir Francis Winnington said, "If the judges instead of acting by law shall be acted by their own ambition, and endeavor to get promotion rather by worshipping the rising sun than doing justice, this nation will soon be reduced to a miserable condition." "As faults committed by judges are of more dangerous consequence than others to the public, so there do not want precedents of severer chastisements for them than for others."[173] [Footnote 173: 4 Parl. Hist. 1224.] But spite of the continual attempt to destroy the value of the trial by jury, and take from the People their ancient, sevenfold shield, the progress of liberty is perpetual. Now and then there arose lawyers and judges like Sir Matthew Hale, Holt, Vaughan, Somers, Camden, and Erskine, who reached out a helping hand. Nay, politicians came up to its defence. But the great power which has sustained and developed it is the sturdy and unconquerable Love of individual Liberty which is one of the most marked characteristics of the Anglo-Saxon, whether Briton or American. The Common People of England sent Juries, as well as regiments of Ironsides, to do battle for the Right. Gentlemen, let us devoutly thank God for this Safeguard of Freedom, and take heed that it suffers no detriment in our day, but serves always the Higher Law of the Infinite God. Now, Gentlemen of the Jury, I come to the end. IV. OF THE CIRCUMSTANCES OF THIS SPECIAL CASE, UNITED STATES VERSUS THEODORE PARKER. Here, Gentlemen, I shall speak of three things. (I.) Of the Fugitive Slave Bill. At the close of the Revolution there was a contradiction in the national consciousness: the People were divided between the Idea of Freedom and the Idea of Slavery. There consequently ensued a struggle between the two elements. This has continued ever since the Treaty of Peace in 1783. Twice the Idea of Freedom has won an important victory: in 1787 Slavery was prohibited in the North-West Territory; in 1808 the African Slave Trade was abolished. Gentlemen, this is all that has been done for seventy-two years; the last triumph of American Freedom over American Slavery was forty-seven years ago! But the victories of Slavery have been manifold: in 1787 Slavery came into the Constitution,--it was left in the individual States as a part of their "Republican form of government;" the slaves were counted fractions of men, without the personal rights of integral humanity, and so to be represented by their masters; and the rendition of fugitive slaves was provided for. In 1792 out of old territory a new Slave State was made and Kentucky came into the Union. Tennessee followed in 1796, Mississippi in 1817, Alabama in 1819, and thus four Slave States were newly made out of soil which the Declaration of Independence covered with ideal freedom. In 1793 the Federal government took Slavery under its special patronage and passed the first fugitive slave bill for the capture of such as should escape from bondage in one State, and flee to another. In 1803 Louisiana was purchased and Slavery left in that vast territory; thus the first expansion of our borders was an extension of bondage,--out of that soil three great States, Louisiana, Missouri, Arkansas, have since been made, all despotic, with more than half a million of Americans fettered there to-day. Florida was purchased as slave soil, and in 1845 made a State with perpetual Slavery written in its Constitution. In 1845 Texas was annexed and Slavery extended over nearly four hundred thousand square miles of once free soil; in 1848 Slavery was spread over California, Utah, and New Mexico. Here were seven great victories of Slavery over Freedom. At first it seemed doubtful which was master in the federal councils; but in 1820, in a great battle--the Missouri Compromise--Slavery triumphed, and has ever since been master. In 1845 Texas was annexed, and Slavery became the open, acknowledged, and most insolent master. The rich, intelligent, and submissive North only registers the decrees of the poor, the ignorant, but the controlling South; accepts for Officers such as the master appoints, for laws what the Slave-driver commands. The Slave-Power became predominant in American politics, business, literature, and "Religion." Gentlemen of the Jury, do you doubt what I say? Look at this Honorable Court,--at its Judges, its Attorney, at its Marshal, and its Marshal's Guard: they all hold their offices by petty serjeantry of menial service rendered to the Slave-Power. It would be an insult to any one of this august fraternity to hint that he had the faintest respect for the great Principles of American Liberty, or any love of justice for all men. I shall not be guilty of that "contempt of court." Gentlemen, I had expected that this Court would be solemnly opened with prayer. I knew whom the Slave-Power would select as its priest to "intercede with Heaven." I expected to hear the Rev. Nehemiah Adams, D.D., ask the God he worships and serves to take "a South-side view of American Slavery" in general, and in special of this prosecution of a minister of the Christian Religion for attempting to keep the Golden Rule. Should the Court hereafter indulge its public proclivity to prayer, that eminent divine will doubtless be its advocate--fit mediator for a Court which knows no Higher Law. Well, Gentlemen, that sevenfold triumph was not enough. Slavery will never be contented so long as there is an inch of free soil in the United States! New victories must be attempted. Mr. Toombs has declared to this noble Advocate of Justice and Defender of Humanity, [John P. Hale] who renews the virtuous glories of his illustrious namesake, Sir Matthew Hale, that, "Before long the master will sit down with his slaves at the foot of Bunker Hill Monument." But one thing disturbed our masters at the South--the concubine runs away from her lusty lord, the mulatto slave child from her white father; I have had the "best blood of Virginia," fugitive children of her "first families" in my own house, and have given many a dollar to help the sons and daughters of "Southern Democrats" enjoy a taste of Northern Democracy. The slaves would run away. The law of 1793 was not adequate to keep or catch these African Christians who heeded not the Southern command, "Slaves, obey your masters." The Decision of the Supreme Court in the Prigg case,[174] showed the disposition of the Federal Government, and took out of the hands of the individual States the defence of their own citizens. Still the slaves would run away. In 1849 there were more than five hundred fugitives from Southern Democracy in Boston--and their masters could not catch them. What a misfortune! Boston retained $200,000 of human Property of the Christian and chivalric South! Surely the Union was "in danger." [Footnote 174: 16 Peters, 616.] In 1850 came the fugitive slave bill. When first concocted, its author,--a restless politician, a man of small mind and mean character, with "Plantation manners,"--thought it was "too bad to pass." He designed it not for an actual law, but an insult to the North so aggravating that she must resist the outrage, and then there would be an opportunity for some excitement and agitation at the South--and perhaps some "nullification" in South Carolina and Virginia; and in that general fermentation who knows what scum would be thrown up! Even Mr. Clay "never expected the law would be enforced." "No Northern _gentleman_," said he, "will ever help return a fugitive slave." It seemed impossible for the bill to pass. But at that time Massachusetts had in the Senate of the nation a disappointed politician, a man of great understanding, of most mighty powers of speech,-- "Created hugest that swim the ocean stream,"-- and what more than all else contributed to his success in life, the most magnificent and commanding personal appearance. At that time--his ambition nothing abated by the many years which make men venerable,--he was a bankrupt in money, a bankrupt in reputation, and a bankrupt in morals--I speak only of his public morals, not his private,--a bankrupt in political character, pensioned by the Money Power of the North. Thrice disappointed, he was at that time gaming for the Presidency. When the South laid down the fugitive slave bill, on the national Faro-table, Mr. Webster bet his all upon that card. He staked his mind--and it was one of vast compass; his eloquence, which could shake the continent; his position, the senatorial influence of Massachusetts; his wide reputation, which rung with many a noble word for justice and the Rights of man; he staked his conscience and his life. Gentlemen, you know the rest,--the card won, the South took the _trick_, and Webster lost all he could lose,--his conscience, his position, his reputation; not his wide-compassing mind, not his earth-shaking eloquence. Finally he lost his--life. Peace to his mighty shade. God be merciful to him that showed no mercy. The warning of his fall is worth more than the guidance of his success. Let us forgive; it were wicked to forget. For fifty years no American has had such opportunity to serve his country in an hour of need. Never has an American so signally betrayed the trust--not once since Benedict Arnold turned a less ignoble traitor! Gentlemen, you know the speech of the 7th of March. You know it too well. He proposed to support the fugitive slave bill "with all its provisions, to the fullest extent." At that time this bill of abominations was worse than even now; for then it left the liberty of a man to the discretion not only of any judge or commissioner of any Federal court, but to any clerk or marshal thereof, nay, to any collector of the customs and every one of the seventeen thousand postmasters in the United States! It provided that an affidavit made before any officer empowered, by the United States or any State, to administer oaths, should be taken as conclusive evidence to prove a man a slave! So John Smith of some unknown town in Texas, might make affidavit before John Jones, a justice of peace in the same place, that Lewis Hayden, or Wendell Phillips, or his Honor Judge Curtis, was his (Smith's) slave, and had escaped to Boston: might bring hither John Brown, a Postmaster from Texas, or find some collector of the customs or minion of the court in Massachusetts, seize his victim, and swear away his liberty; and any man might be at once consigned to eternal bondage! All that the bill provided for,--and authorized the kidnapper to employ as many persons as he might think proper to accomplish his purpose by force, at the expense of the United States! All this Mr. Webster volunteered to support "to the fullest extent." The bill was amended, here bettered, there worsened, and came to the final vote. Gentlemen, the Money Power of the North joined the Slave Power of the South to kidnap men in America after 1850, as it had kidnapped them in Africa before 1808. Out of fifty Senators only twelve said, No; while in the House 109 voted Yea. The Hon. Samuel A. Eliot gave the vote of Beacon and State Streets for kidnapping men on the soil of Boston. The one Massachusetts vote for man-stealing must come from the town which once bore a Franklin and an Adams in her bosom; yes, from under the eaves of John Hancock's house! That one vote was not disgrace enough; his successor [Hon. William Appleton] must take a needless delight in reaffirming the infamy. When the bill passed, Gentlemen, you remember how Mr. Webster rejoiced:-- "Now is the winter of our discontent Made glorious summer," was his public outcry on the housetop! And Boston fired a hundred guns of joy! Do you know _who_ fired them? Ask Mr. Attorney Hallett; ask Mr. Justice Curtis. They can "instruct the jury." Gentlemen, you know the operation of the fugitive slave bill. It subverts the Purposes of the Constitution, it destroys Justice, disturbs domestic Tranquillity, hinders the common Defence and the general Welfare, and annihilates the Blessings of Liberty. It defies the first Principles of the Declaration of Independence,--think of the fugitive slave bill as an appendix to that document! It violates the Idea of Democracy. It contradicts the very substance of the Christian Religion--the two great commandments of Love to God, and Love to man, whereon "hang all the Law and the Prophets." It makes natural humanity a crime; it subjects all the Christian virtues to fine and imprisonment. It is a _lettre de cachet_ against Philanthropy. Gentlemen of the Jury, you know the fugitive slave bill is unconstitutional. I need not argue the matter; it is too plain to need proof. See how it opposes Justice, the ultimate purpose of human law; nay, the declared objects of the Constitution itself! But yet its unconstitutionality has been most abundantly shown by our own fellow-citizens. I need not go out of Massachusetts for defenders of Justice and Law. You remember the Speeches of Mr. Phillips, Mr. Sewall, Mr. Rantoul, Mr. Sumner, Mr. Mann, the arguments of Mr. Hildreth. The judges before you by nature are able-minded men, both of them; both also learned as lawyers and otherwise well educated,--I love to honor their natural powers, and their acquired learning; would I could offer higher praise. Now, I will not insult their manly understanding with the supposition that either of them ever thought the fugitive slave bill constitutional. No, Gentlemen, it is not possible that in the _personal_ opinion of Mr. Sprague, or even Mr. Curtis, this bill can be held for a constitutional law. But the Court has its official dress: part of it is of silk--or supposed to be,--the gown which decorates the outward figure of the man who wears its ample folds; it is made after a prescribed pattern. But part of it also is made of _opinion_ which hides the ability and learning of the honorable Court. The constitutionality of the fugitive slave bill is a part of the judge's official dress: accordingly, as no federal judge sits without his "silk gown," so none appears without his "opinion" that the fugitive slave bill is constitutional. But if the court should solemnly declare that such was its _personal opinion_--Gentlemen of the Jury, I,--I--should not believe it--any more than if they declared the gown of silk was the natural judicial covering, the actual "true skin" of the judges. No, Gentlemen, these judges are not monsters, not naturally idiotic in their Conscience. This opinion is their official robe, a supplementary cuticle, an artificial epidermis, woven from without, to be thrown off one day, when it shall serve their turn, by political desquamation. Let them wear it; "they have their reward." But you and I, Gentlemen, let us thank God we are not officially barked about with such a leprous elephantiasis as that. You are to judge of its constitutionality for yourselves, not to take the _purchased, official opinion_ of the judge as veil for your Conscience; let it hide the judges' if they like. Gentlemen, I lack words to describe the fugitive slave bill; its sins outrun my power of speech. But you know the consequences which follow if it be accepted by the People, submitted to, and enforced: the State of Massachusetts is nothing; her courts nothing; her juries nothing; her laws nothing; her Constitution nothing--the Rights of the State are whistled away by the "opinion" of a fugitive slave bill judge, the rights of the citizen--all gone; his right to life, liberty, and the pursuit of happiness lies at the mercy of the meanest man whom this Court shall ever make a Commissioner to kidnap men. Yes, Gentlemen of the Jury, you hold your liberty at the mercy of George T. Curtis and Seth J. Thomas! You are the People, "the Country" to determine whether it shall come to this. You know the motive which led the South to desire this bill,--it was partly pecuniary, the desire to get the work of men and not pay for it; partly political, the desire to establish Slavery at the North. Mr. Toombs is not the only man who wishes the master to sit down with his slaves at the foot of Bunker Hill Monument! You know the motive of the Northern men who supported the bill;--words are idle here! Gentlemen, I said that Boston fired a hundred jubilant cannon when the fugitive slave bill became a law. It was only a _part of Boston_ that fired them. The bill was odious here to all just and honorable men. Massachusetts hated the bill, and was in no haste to "conquer her prejudices" in favor of Justice, Humanity, and the Christian Religion; she did not like the "disagreeable duty" of making a public profession of practical Atheism. At first the yellow fever of the slave-hunters did not extend much beyond the pavements of Boston and Salem; so pains must be taken to spread the malady. The greatest efforts were made to induce the People to renounce their Christianity, to accept and enforce the wicked measure. The cry was raised, "The Union is in danger:" nobody believed it; they least of all who raised the cry. Some clergymen in the Churches of Commerce were coaxed, wheedled, or bought over, and they declared kidnapping would be imputed unto men for "righteousness." The actual man-stealer in Boston was likened to "faithful Abraham" in the Hebrew mythic tale,--"the rendition of a slave was like the sacrifice of Isaac." One Trinitarian minister, a son of Massachusetts, laid Conscience down before the Juggernaut of the fugitive slave bill, another would send his own mother into Slavery; both had their reward. Editors were brought over to the true faith of kidnapping. Alas, there were some in Boston who needed no conversion; who were always on the side of inhumanity. There were "Union meetings" called to save the Nation; and the meanest men in the great towns came to serve as Redeemers in this Salvation unto kidnapping. Mr. Webster outdid himself in giant efforts--and though old and sick, he wrought with mighty strength. So in the great poem the fallen angel, his Paradise of Virtue lost,-- ----"with bold words Breaking the horrid silence thus began. 'To do aught good never will be our task, But ever to do ill our sole delight, As being the contrary to His high will Whom we resist.... Let us not slip the occasion.... But reassembling our afflicted powers Consult how we may henceforth most offend Our enemy; our own loss how repair, How overcome this dire calamity; What reinforcement we may gain from hope, If not what resolution from despair.'" One class of men needed no change, no stimulation. They were ready to execute this unjust, this unconstitutional Act; their lamps were trimmed and burning, their loins girt about, their feet swift to shed blood. Who were they? Ask Philadelphia, ask New York, ask Boston. Look at this bench. The Federal Courts were as ready to betray justice in 1850 as Kelyng and Jeffreys and Scroggs and the other pliant judges of Charles II. or James II. to support his iniquities. I must speak of this. * * * * * (II.) Of the conduct of the Federal Courts. Gentlemen of the Jury, that you may understand the enormity of the conduct of the federal courts and the peril they bring upon their victims, I must refresh your memory with a few facts. 1. I shall begin with the cases in Pennsylvania. In that State four officials of government have acquired great distinction by their zeal in enslaving men, McAllister, Ingraham, Grier, and Kane; the two first are "Commissioners," the latter two "Judges." In one year they had the glory of kidnapping twenty-six Americans and delivering them over to Slavery. Look at a few cases. (1.) On the 10th of March, 1851, Hannah Dellam was brought before Judge Kane charged with being a fugitive slave. She was far advanced in pregnancy, hourly expecting to give birth to a child. If a convicted murderess is in that condition, the law delays the execution of its ghastly sentence till the baby is born, whom the gallows orphans soon. The poor negro woman's counsel begged for delay that the child might be born in Pennsylvania and so be free,--a poor boon, but too great for a fugitive slave bill judge to grant. The judge who inherits the name of the first murderer, disgraced the family of Cain; he prolonged his court late into night, that he might send the child into Slavery while in the bowels of its mother! Judge Kane held his "court" and gave his decision in the very building where the Declaration of Independence was signed and published to the world. The memorable bell which summons his court, has for motto on its brazen lips, "Proclaim Liberty throughout the Land, to all the inhabitants thereof." (2.) The same year Rachel Parker, a free colored girl, was seized in the house of Joseph C. Miller of West-Nottingham, Chester County, by Thomas McCreary of Elkton, Maryland. Mr. Miller pursued the kidnapper and found the girl at Baltimore, and brought a charge of kidnapping against McCreary. But before the matter was decided Mr. Miller was decoyed away and murdered! The man-hunter was set free and the girl kept as a slave, but after long confinement in jail was at last pronounced free--not by the Pennsylvania "judge" but by a Baltimore Jury![175] [Footnote 175: 20 Anti-Slavery Report, 28 and 21; Ibid. 34.] (3.) The same year occurred the Christiana Tragedy. Here are the facts. In Virginia a general law confers a reward of $100 on any man who shall bring back to Virginia a slave that has escaped into another State, and gives him also ten cents for each mile of travel in the chase after a man. Accordingly, beside the officers of the fugitive slave bill courts commissioned for that purpose, there is a body of professional Slave-hunters, who prowl about the borders of Pennsylvania and entrap their prey. In September, 1850, "a colored man, known in the neighborhood around Christiana to be free, was seized and carried away by professional kidnappers, and never afterwards seen by his family." In March, 1851, in the same neighborhood, under the roof of his employer, during the night, another colored man was tied, gagged, and carried away, "marking the road along which he was dragged by his own blood." He was never afterwards heard from. "These and many other acts of a similar kind had so alarmed the neighborhood, that the very name of Kidnapper was sufficient to create a panic."[176] [Footnote 176: History of the Trial of Castner Hanway and others for Treason (Philadelphia, 1852), 35.] "On the 11th of September, Edward Gorsuch, of Maryland, his son, Dickerson Gorsuch, with a party of friends, and a United States officer named Kline, who bore the warrant of Commissioner Ingraham, made their appearance in a neighborhood near Christiana, Lancaster County, Pennsylvania, in pursuit of a Slave. They lay in wait for their prey near the house of William Parker, a colored man. When discovered and challenged, they approached the house, and Gorsuch demanded his Slave. It was denied that he was there. High words ensued, and two shots were fired by the assailants at the house. The alarm was then given by blowing a horn, and the neighborhood roused. A party of colored men, from thirty to fifty strong, most of them armed in some way, were before long on the ground. Castner Hanway and Elijah Lewis, both white men and Friends, rode up before the engagement began and endeavored to prevent bloodshed by persuading both parties to disperse peaceably. Kline, the Deputy Marshal, ordered them to join the _posse_, which they, of course, refused to do, but urged upon him the necessity of withdrawing his men for their own safety. This he finally did, as far as he personally was concerned, when satisfied that there was actual danger of bloody resistance. Gorsuch, however, and his party persisted in their attempt, and he and two of his party fired on the colored men, who returned the fire with deadly effect. Gorsuch was killed on the spot, his son severely, though not mortally, wounded, and the rest of the party put to flight. The dead and wounded were cared for by the neighbors, mostly Friends and Abolitionists. The Slave, for the capture of whom this enterprise was undertaken, made his escape and reached a land of safety. "Judge Grier denounced the act from the Bench as one of Treason. A party of marines were ordered to the ground to keep the peace after the battle had been fought and won. United States Marshal Roberts, Commissioner Ingraham, United States District Attorney Ashmead, with a strong body of police, accompanied them, and kept the seat of war under a kind of martial law for several days. The country was scoured, houses ransacked, and about thirty arrests made. Among those arrested were Castner Hanway and Elijah Lewis, whose only crime had been endeavoring to prevent the effusion of blood. The prisoners were brought to Philadelphia, examined before a Commissioner, and committed on a charge of High Treason. At the next term of the District Court, under a charge from Judge Kane, the Grand-Jury found indictments against all of them for this crime."[177] [Footnote 177: 20 Anti-Slavery Report, pp. 30, 31.] Mr. Hanway was brought to trial--for his life, charged with "treason." It appears that this was his overt act.--He was a Quaker, an anti-slavery Quaker, and a "non-resistant;" when he heard of the attack on the colored people, he rode on a sorrel horse to the spot, in his shirt-sleeves, with a broad felt hat on; he advised the colored men not to fire, "For God's sake don't fire;" but when Deputy Marshal Kline ordered him to assist in the kidnapping, he refused and would have nothing to do with it. Some of the colored people fired, and with such effect on the Kidnappers as I have just now shown. It appeared also that Mr. Hanway had said the fugitive slave bill was unconstitutional, and that he would never aid in kidnapping a man--words which I suppose this Honorable Court will consider as a constructive "misdemeanor;" "obstructing an officer." For this "offence" his case was presented to the grand-jury of the Circuit Court the 29th of September, 1851. Judge Kane charged the jury--laying down the law of treason. Mr. Hanway was indicted for "wickedly devising and intending the peace and tranquillity of the ... United States to disturb;" and that he "wickedly and traitorously did intend to levy war against the said United States." And also that he "with force and arms, maliciously and traitorously did prepare and compose and ... and cause and procure to be prepared and composed, divers books, pamphlets, letters, and declarations, resolutions, addresses, papers, and writings, and did ... maliciously and traitorously publish and disperse ... divers other books ... containing ... incitement, encouragement, and exhortations, to move, induce, and persuade persons held to service in any of the United States ... who had escaped ... to resist, oppose, and prevent, by violence and intimidation, the execution of the said laws, [that is the law for kidnapping their own persons]." He was brought to trial at Philadelphia, November 24th 1851, before Honorable Judges Kane and Grier, then and subsequently so eminent for their zeal in perverting law and doing judicial iniquity. Gentlemen of the Jury--it is no slander to say this. It is their great glory that in the cause of Slavery they have struck at the first principles of American Democracy, and set at nought the Christian Religion. It is only their panegyric which I pronounce. On behalf of the government there appeared six persons as prosecuting officers. One United States Senator from Pennsylvania (Mr. Cooper), the Attorney-General of Maryland, the District Attorney of Pennsylvania, the Recorder of the City of Philadelphia, and two members of her bar.[178] For Mr. Webster, then Secretary of State, was highly desirous that Maryland should send her Attorney-General, Hon. Mr. Brent, to help the government of the United States prosecute a Quaker miller, a Non-resistant, for the crime of treason. Hon. James Cooper, the Pennsylvania Senator, also appeared on behalf of Maryland, seeking to convict one of his own constituents! Gentlemen, such conduct carries us back to the time of the Stuarts; but despotism is always the same. It was very proper that the United States government should thus outrage the common decencies of judicial process. [Footnote 178: History, 55, 57; Report, 19; 2 Wallace.] This question amongst others was put to each juror:-- "Have you formed an opinion that the law of the United States, known as the Fugitive Slave Law of 1850, is unconstitutional, so that you cannot for that reason convict a person indicted for a forcible resistance thereto, if the facts alleged in the indictment are proved and the court hold the statute to be constitutional?" Thus all persons were excluded from the jury who believed this wicked bill a violation of the constitution; and one most important means of the prisoner's legitimate defence was purposely swept away by the court. Now look at the law as laid down by the government. Mr. Ashmead, the government's Attorney, said when the Constitution was adopted "Men had not then become wiser than the laws [the laws of England and colonial laws which they were born under and broke away from]; nor had they learned to measure the plain and unambiguous letter of the Constitution by an artificial standard of their own creation [that is the Self-evident Truth that all men have a natural and unalienable Right to Life, Liberty, and the Pursuit of Happiness]; to obey or disregard it according as it came up to or fell beneath it [as the law was just or unjust]." "_You will receive the law from the court._" "You _are bound by the instructions which the court may give_ in respect to it;" "_it is in no sense true that you are judges of the law_." "_You must take the interpretation which the court puts upon it._ You have a right to apply the law to the facts, but you have no right to go further." "The crime charged against this defendant is ... that of _levying war against the United States_. The phrase _levying war_ was long before the adoption of the Constitution, a phrase ... _embracing such a forcible resistance to the laws as that charged against this defendant_ [that is, speaking against the fugitive slave bill and refusing to kidnap a man is 'levying war against the United States']!" It is treason "if the intention is by force to prevent the execution of _any one ... of the general laws of the United States_, or _to resist_ the exercise of _any legitimate authority of the government_." "Levying war embraces ... any combination forcibly to prevent or oppose the execution ... of a public statute, if accompanied or followed by an act of forcible opposition." Of course the court is to determine the meaning of _force_; and using the same latitude of construction as in interpreting _levying war_, it would mean, a _word_, a _look_, a _thought_, a _wish_, a _fancy_ even. Mr. Ludlow enforced the same opinions, relying in part on the old tyrannical decisions of the British courts in the ages of despotism, and on the opinion of Judge Chase--who had derived his law of treason from that source, and was impeached before the American Senate for his oppressive conduct while judge in the very trials whence these iniquitous doctrines were derived! But Mr. Ludlow says "if a _spurious doctrine have been introduced into the common law ... it would require great hardihood in a judge to reject it_." So the jury must accept "a spurious doctrine" as genuine law! "In treason, all the _participes criminis_ are principals; there are no accessaries to this crime. Every act which ... would render a man an _accessary_ will ... make him a _principal_." "If any man joins and acts with an assembly of people, _his intent is always to be considered ... the same as theirs; the law ... judgeth of the intent by the Fact_." This was Judge Kelyng's "law." "It may be ... advanced that because Hanway was not armed, he was not guilty. It is perfectly well settled that _arms are not necessary_." "Military weapons ... are not necessary ... to a levying war." "This is the opinion of Judge Chase," and "it may be alleged that Judge Chase was impeached, and that [therefore] his opinions are of little weight. Whatever may have been the grounds of that impeachment, _it is not for us to discuss_." "If a body of men be assembled for the purpose of effecting a treasonable object [that is, 'to oppose the execution of a public statute,' no matter what or how] _all those who perform any part, however minute, or however remote from the scene of action ... are equally traitors_." Mr. Brent, the Maryland State Attorney, whom Mr. Webster had sent there, declared that "_any combination_ like this, of colored and white persons, _to prevent the execution of the Fugitive Slave Law, is treason_." Mr. Cooper, the Pennsylvania Senator, adds, "Castner Hanway ... having been present ... at the time the overt act was committed, he is a principal ... provided he was there aiding and abetting the objects of the confederated parties." "_Persons_ procuring, contriving, or _consenting_, come within the words aid and abet." So "_if he_ encourages, _assists, or consents to the act_, it is enough; _he becomes at once an aider and abettor, and obnoxious to all the pains and penalties denounced against it_." "If persons _do assemble themselves_ and act with _some_ force in opposition to _some_ law ... and _hope thereby to get it repealed, this is a levying war and high treason_." That is, an assembly of men acting against any law, with any force of argument, in order to procure its repeal, levies war and is guilty of treason! To connect Mr. Hanway with this constructive treason, the government relied on the evidence of Mr. Kline, the Deputy Marshal of the court, a man like Mr. Butman and Mr. Patrick Riley, so well known in this court, and so conspicuous for courage and general elevation of character. Witnesses testified that Kline was so much addicted to falsehood that they would not believe him on oath,--but what of that? He had "conquered his prejudices." It appeared that Mr. Hanway went to the scene of action on a sorrel horse, in his shirt-sleeves, with a felt hat on, and did not join the Deputy in attempting to kidnap when commanded. Hear how Mr. Ludlow constructs levying war out of the disobedience of a non-resistant Quaker in a felt hat and shirt-sleeves, mounted on a sorrel horse! Hearken to this voice of the government:-- "Suddenly he sees the assembled band of infuriated men.... Does he leave the spot? No, Sir! Does he restrain the negroes? Take the evidence for the defence in its fullest latitude, and you will perceive he raised the feeble cry, 'Don't shoot! for God's sake don't shoot!' and there it ended. Is that consistent with innocence?... according to their own evidence the conclusion is irresistible that he was not innocent." "But he does more than this." When summoned by the Deputy to steal a man "he is thrown off his guard, and exclaims, 'I will not assist you;' 'he allowed the colored people had a right to defend themselves.' 'He did not care for that Act of Congress or any other Act of Congress.'" And so with his unsaddled sorrel nag this non-resistant miller levies war upon the United States by crying "Don't fire," and commits treason by the force and arms of a broad-brimmed Quaker hat. "The smallest amount of force is sufficient," "military weapons are not necessary to levy war!" Mr. Brent thought if Mr. Hanway was not hanged it would appear that a "small and miserable and traitorous faction can resist and annul the laws of the United States." "Put down these factions [the Free-Soil Party, the Liberty Party, the Anti-Slavery Societies], overwhelm them with shame, disgrace, and ruin, or you are not good citizens fulfilling the bonds that bind you to us of the South." The government Attorney declared that Mr. Hanway and others "Had no right to refuse to assist because it was repugnant to their consciences. Conscience! Conscience ... is the pretended justification for an American citizen to refuse to execute a law of his country." "_Damnable, treasonable doctrine._" "He has become a conspirator, he has connected himself with them, and all their acts are his acts, and all their intentions are his intentions." "The whole neighborhood was not only disloyal, but wanting in common humanity:" "the whole region is infected," "in _that horde of traitors_;" "a whole county, a whole township, a whole neighborhood are involved in plotting treason." "When you see these things _can you not infer ... that he went there by pre-arrangement_!" "When you see a man ... not saying one word to save his dear colored friends from the guilt of murder, I say it is passing human credulity to say that you cannot _infer_ in all that _a feeling of hostility to the law, and an intention to resist it_." "The consequences [of the verdict] are not with the jury:" the responsibility will not be with you--you are not responsible for those just consequences." "When you allege that a master has come into Pennsylvania and illegally seized and possessed himself of his slave without process, you are to inquire, 'Has he done that which he had authority to do in his own State?' You are to look to the _laws of his own State_; for the Supreme Court says,[179] 'He _has the same right to repossess his slave here as in his own State_.'" "He who employs a man said to have come from Maryland without being satisfied of his freedom, is himself guilty of the first wrong." [Footnote 179: 16 Peters, Prigg _v._ Penn.] Senator Cooper closed for the government. Law was not enough for him; he would have the sanction of "Religion" also. So he read extract from a Sermon. Gentlemen of the Jury, you have not had the benefit of Rev. Dr. Adams's prayers in this court; it is a pity you should not be blessed with the theology of despotism; listen therefore to the "Thanksgiving Sermon" of Rev. Dr. Wadsworth, which Hon. Mr. Cooper read to the Jury in Independence Hall. "For passing by all other causes of irritation as just now secondary and subordinate, look for a moment, at the influence which the Gospel of Christ would have in this great sectional controversy about slavery. "First, It would say to the Northern fanatic, who _vapors about man-stealing_ as if there were no other evil under the sun but this one evil of Slavery--it would say to him, Emulate the spirit of your blessed Master and his apostles, _who, against this very evil_ [man-stealing] in their own times, _brought no railing accusation_; but in one instance at least, _sent back a fugitive_ from the household of Philemon. "In treating Southern _Christian slaveholders_ with Christian courtesy, and _sending back their fugitives_ when apprehended among you, you neither indorse the system nor partake of its evil; you are only performing in good faith the agreement, and redeeming the pledges of your forefathers, and leaving to each man for himself to answer for his own acts at the judgment-seat of Jesus. It would tear away from the man, as the foulest cloak of hypocrisy, that pretence of a religious principle in this whole matter of political abolitionism. "Religious principle! Oh my God! That religious principle, that for the sake of _an abstract right_ whose very exercise were disastrous to the unprepared bondmen who inherit it, would tear this blest confederacy in pieces, and deluge these smiling plains in fraternal blood, and barter the loftiest freedom that the world ever saw, for the armed despotism of a great civil warfare! That religious principle which, in disaster to man's last great experiment, would fling the whole race back into the gloom of an older barbarism--rearing out of the ruin of these free homes, the thrones of a more adamantine despotism--freedom's beacons all extinguished, and the whole race slaves. That religious principle through which, losing sight of God's great purpose of evangelizing the nations, [by American Slavery,] would shatter the mightiest wheel in the mechanism of salvation, and palsy the wing of God's preaching angel in its flight through the skies. "Alas--alas! ye that count as little this bond of blessed brotherhood, wrought by our fathers' mighty hands and bleeding hearts--we tell you, sorrowing and in tears, that your pretence is foul hypocrisy. Ye have reversed the first precept of the gospel, for your wisdom is a dove's, and your harmlessness a serpent's. _Ye have not the first principle within you either of religion or philanthropy, or common human benevolence._ Your principle is the principle of Judas Iscariot, and with the doom of the traitor ye shall go to your own place." "No, Sir--no, Sir," concludes the Senator thirsting for his constituent's blood, "'There is no gospel in all this treasonable fanaticism--for treason to my country is rebellion to my God.'" Judge Grier charged the Jury;--but as _he stuck out from the phonographer's report_--of which the proof-sheets were sent to him--_the most offensive portion_, Gentlemen of the Jury, I shall not be able to enlighten you with all the legal words of this "consummate judge." So be content with the following Elegant Extracts. "With the exception of a few individuals of perverted intellect in some small districts or neighborhoods whose moral atmosphere has been tainted and poisoned by male and female vagrant lecturers and conventions, no party in politics, no sect of religion, or any respectable numbers or character can be found within our borders, who have viewed with approbation or have looked with any other than feelings of abhorrence upon this disgraceful tragedy." "It is not in this Hall of Independence that meetings of infuriated fanatics and unprincipled demagogues have been held to counsel a bloody resistance to the laws of the land. It is not in _this_ city that conventions are held denouncing the Constitution, the Laws, and the Bible. It is not _here_ that the pulpit has been desecrated by seditious exhortations, teaching that theft [a man stealing his own limbs and person from his 'lawful owner'] is meritorious, murder [in self-defence killing a man-stealer] excusable, and treason [opposition to the fugitive slave bill] a virtue!" "The guilt of this foul murder [the shooting of a kidnapper by the men whom he intended for his victims, and whose premises he invaded without due process of law, and with armed force], rests not alone on the deluded individuals who were its immediate perpetrators, but the blood taints with even deeper dye the skirts of those who promulgated doctrines subversive of all morality and all government, [that is, of Slavery and the fugitive slave bill]." "This murderous tragedy is but the necessary development of principles and the natural fruit from seed sown by others whom the arm of the law cannot reach," [such as the Authors of the Declaration of Independence, and still more the Author of the "Sermon on the Mount]." "This [the slave clause of the Constitution] is the Supreme law of the land, _binding ... on the conscience_ and conduct of every individual citizen of the United States." "The shout of disapprobation with which this [the fugitive slave bill] has been received by some, has been caused ... because it is an act which can be executed ... the real objection ... is to the Constitution itself, which is supposed to be void in this particular, from the effect of some 'higher law.' It is true that the number of persons whose consciences affect to be governed by such a law [that is the law of Natural Morality and Religion], is very small. But there is a much larger number who take up opinions on trust,--and have concluded this must be a very pernicious and unjust enactment, for no other reason than because the others shout their disapprobation with such violence and vituperation." "This law is Constitutional." "The question of its Constitutionality is to be settled by the Courts, [fugitive slave bill courts,] and not by conventions either of laymen or ecclesiastics." "_We are as much bound to support this law as any other._" "The jury should regard the construction of the Constitution as given them by the court as to what is the true meaning of the words _levying war_." "In treason all are principals, and a man may be guilty of aiding and abetting, though not present." He spoke of those "associations, or conventions, which occasionally or annually infest the neighboring village of West-Chester, for the purpose of railing at and resisting the Constitution and laws of the land [that is the fugitive slave bill and other laws which annihilate a man's unalienable right to his liberty], and denouncing those who execute them as no better than a Scroggs or a Jeffreys;--who stimulate and exhort poor negroes to the perpetration of offences which they know must bring them to the penitentiary or the gallows." But he thought refusing to aid the deputy marshal in kidnapping was not an act of levying war, or treason against the United States. "In so doing he is not acting the part of an honest, loyal citizen [who ought to do any wickedness which a bum-bailiff commands]; he may be _liable to be punished for a misdemeanor for his refusal to interfere_." "But he thought the government was right "in procuring an indictment for Treason." For "meetings had been held in many places in the North, denouncing the law, and advising a traitorous resistance to its execution: conventions of infuriated fanatics had invited to acts of rebellion; and even the pulpit had been defiled with furious denunciations of the law, and exhortations to a rebellious resistance to it. "The government was perfectly justified in supposing that this transaction was but the first overt act of a treasonable conspiracy, extending over many of the Northern States, to resist by force of arms the execution of this article of the Constitution and the laws framed in pursuance of it. In making these arrests, and having this investigation, the officers of government have done no more than their strict duty. "The activity, zeal, and ability, which have been exhibited by the learned Attorney of the United States, in endeavoring to bring to condign punishment the perpetrators of this gross offence, are deserving of all praise. _It has given great satisfaction to the Court also, that the learned Attorney-General of Maryland, and the very able counsel associated with him_ [Senator Cooper of Pennsylvania] _have taken part in this prosecution_." In about fifteen minutes the Jury returned a verdict of "NOT GUILTY."[180] [Footnote 180: See Report of Trial of Castner Hanway, Phil. 1852.] * * * * * (4.) On the 29th of April, 1852, a man named William Smith was arrested by Commissioner McAllister of Columbia, Pennsylvania, on complaint of one Ridgeley of Baltimore. While in the custody of the officers, Smith endeavored to escape, and Ridgeley drew a pistol and shot him dead. The murderer escaped. No serious efforts were made by the State authorities to bring that offender to justice. "He has the same right to repossess his slave here as in his own State;" the same right to kill him if he attempts to escape! Mr. Toombs is modest--but we shall soon see the slaveholder not only sit down with his slaves at the foot of Bunker Hill Monument, but _shoot them if they attempt to run away_! Nay, Gentlemen, we shall see this Court defending the slave-hunter's "privilege." (5.) Here is another case, Gentlemen of the Jury, in which this same Judge Grier appears, and with his usual humanity. This is a brief account of the case of Daniel Kauffman. In 1852 he allowed a party of fugitive slaves to pass the night in his barn, and gave them food in the morning. For this he was brought before Judge Grier's court and fined $2,800! It was more than his entire property. Gentlemen, there are persons in this room who gave money to Mr. Kauffman, to indemnify him for his losses; were not they also guilty of treason, at least of a "misdemeanor?" They "evinced an express liking" for Freedom and Humanity, not Slavery and bloodshed. (6.) But here is yet one more,--which you shall have in the language of another:-- "In a case of attempted Slave-catching at Wilkesbarre, in Pennsylvania, the Deputy Marshal, Wyncoop and his assistants, had behaved with such atrocious and abominable cruelty, that the citizens felt that justice demanded their punishment for the outrage. They were, accordingly, arrested on a warrant issued by a most respectable magistrate, on the oath of one of the principal inhabitants of the place. A writ of habeas corpus was forthwith sued out, returnable before Judge Grier. When the District Attorney, Ashmead, moved the discharge of the relators, (which, it is needless to say, was ordered,) Judge Grier delivered himself to the following effect. 'If _habeas corpuses_ are to be taken out after that manner, _I will have an indictment sent to the United States Grand-Jury against the person who applies for the writ, or assists in getting it, the lawyer who defends it, and the sheriff who serves the writ_, to see whether the United States officers are to be arrested and harassed whenever they attempt to serve a process of the United States.'" 2. Gentlemen of the Jury, you might suppose that love of liberty had altogether vanished from the "Free" States, else how could such men ride over the local law as well as natural justice? But I am happy to find one case where the wickedness of the fugitive slave bill courts was resisted by the people and the local judges--it is a solitary case, and occurred in Wisconsin:-- "About the middle of March, 1854, a man named Joshua Glover, was seized near Racine, in Wisconsin, as a Fugitive Slave. His arrest was marked by the circumstances of cruelty and cowardice which seem to be essential to the execution of this Law above all others. He was brought, chained and bleeding, to Milwaukee, where he was lodged in jail. As soon as the news spread, an indignation, as general as it was righteous, prevailed throughout the city. A public meeting was forthwith called, and held in the open air, at which several of the principal citizens assisted. Stirring speeches were made, and strong resolutions passed, to the effect that the rights of the man should be asserted and defended to the utmost. Counsel learned in the law volunteered, and all necessary process was issued, as well against the claimant for the assault and battery, as in behalf of the man restrained of his liberty. A vigilance committee was appointed to see that Glover was not secretly hurried off, and the bells were ordered to be rung in case any such attempt should be made. But the people were not disposed to trust to the operation of the Slave Law, administered by United States Judges or Commissioners, and they stepped in and settled the question for themselves in a summary manner. A hundred men arrived, in the afternoon, from Racine, the town from which the man had been kidnapped, who marched in order to the jail. They were soon reinforced by multitudes more, and a formal demand was made for the slave. This being denied, an attack was made upon the door, which was soon broken in, the man released, and carried back in triumph to Racine, whence he was afterwards conveyed beyond the jurisdiction of the star-spangled banner. A mass convention of the citizens of Wisconsin was afterwards held to provide for similar cases, should they occur, and a most sound and healthy tone of feeling appears to have pervaded that youthful commonwealth. "After the rescue had been effected, the United States Marshal arrested several persons for the offence of resisting an officer in the discharge of his duties. Among these was Mr. Sherman M. Booth, the editor of the Free Democrat. When brought before a Commissioner, in the custody of the Marshal, a writ of habeas corpus was sued out on his behalf, and he was brought before Judge A.D. Smith, of the Supreme Court. After a full hearing, Judge Smith granted him his discharge, on the ground that the fugitive slave law was unconstitutional. The Marshal then had the proceedings removed by a writ of certiorari before a full bench of the Supreme Court, when the decision of Judge Smith was confirmed, and Mr. Booth discharged from custody. Immediately afterwards, Judge Miller, of the United States District Court, issued another warrant for the arrest of Mr. Booth, making no mention of the fugitive slave act, but directing his arrest to answer to a charge for abetting the escape of a prisoner from the custody of the United States Marshal. Another writ of habeas corpus was sued out, but it was denied by the Supreme Court, on the ground that there was nothing on the face of the record to bring it within range of their former decision." "In the mean time the United States Judge and Marshal were busy in their vocation. It affirmed that the Grand-Jury was packed in the most unblushing manner, until an inquest was made up that would answer the purpose of the Government. However this may have been, indictments were found in the District Court, against Mr. Booth and several other persons. A petty Jury selected with the same care that had been bestowed on the composition of the Grand-Jury, convicted Mr. Booth and Mr. Ryecraft. All the weight of the government was thrown against the defendants. Special counsel were retained to assist the District Attorney, the instructions of the Court were precise and definite against them; all motions in their behalf resting on the irregularities and injustices of the proceedings were overruled. So were all motions subsequent to the conviction for an arrest of judgment. They were sentenced to fine and imprisonment--Mr. Booth to pay one thousand dollars and costs, and to be imprisoned one month, and Mr. Ryecraft to pay two hundred dollars, and to be imprisoned for ten days. On these sentences they were committed to jail. The public excitement in Milwaukee, and throughout the State, was intense. It was with difficulty that the people could be restrained from forcibly liberating the prisoners. Fortunately there was no occasion for any such extreme measures. They found protection, where it ought to be found, in the constituted authorities of their State. A writ of habeas corpus was issued in their behalf by the Supreme Court, then sitting at Madison, the Capital of the State, returnable before them there. Escorted by two thousand of their fellow-citizens, thither, in charge of the High Sheriff, they had a hearing at once. After full deliberation, the Court unanimously ordered them to be discharged. The majority of the Court made this decision on the ground of the unconstitutionality of the fugitive slave law, one Judge (Crawford) sustaining the law, but concurring in the order on the ground that no offence, under that Act, was charged in the indictment. So the prisoners were discharged, and brought home in triumph." Gentlemen, that matter will be carried up to the Supreme Court of the United States, and you may yet hear the opinion of the Hon. Associate Justice Curtis, for which let us wait with becoming reverence. * * * * * 3. Here is the case of Mr. Sloane, which happened in the State of Ohio. In October, 1852, several colored persons were about leaving Sandusky in a steamer for Detroit, when they were seized and taken before Mr. Follet, mayor of the city, and claimed as fugitive slaves. This seizure was made by the city marshal and three persons claiming to act for the owners of the slaves. After the colored persons were brought before the mayor, their friends engaged Mr. Rush R. Sloane to act as counsel in their defence. He demanded of the mayor and the claimants by what authority the prisoners were detained. There was no reply. He then asked, whether they were in the custody of a United States Marshal or Commissioner. Again there was no reply. He next called for any writs, papers, or evidences by which they were detained. Still there was no answer. He then said to his clients, "_I see no authority to detain your colored friends._" At that time some one near the door cried out, "Hustle them out," and soon the crowd and the alleged fugitives were in the street. Then one of the claimants said to Mr. Sloane, "I own these slaves; they are my property, and I shall hold you individually liable for their escape." _These were the first and only words he spoke to Mr. Sloane, and then not until the black men were in the street._ In due time Mr. Sloane was arrested for resisting the execution of the fugitive slave bill, though he had _only acted as legal counsel for the alleged slaves and had offered no resistance to the law, by deed, or word, or sign_. He was brought to trial at Columbus. Before the jurors were sworn they were all asked "whether they had any conscientious scruples against the fugitive slave law, and would hesitate to convict under it." If they said "Yes," they were rejected. Thus a jury was packed for the purpose, and the trial went on. Thirteen unimpeached witnesses deposed to the facts stated before, while the slave claimant had no evidence but the _city marshal_ of Sandusky--the Tukey of that place--and _two of the three slave-catchers_--who swore that they had with them _powers of attorney for the seizure of twenty-four slaves_. Gentlemen, such was the action of the court, and such the complexion of the packed jury, that Mr. Sloane was found "guilty." The Judge, Hon. Mr. Leavitt, refused to sign a bill of exceptions, enabling him to bring the matter before the Supreme Court. Mr. Sloane was sentenced to pay a fine of $3,000, and $930 _as costs of court_! Such was the penalty for a lawyer telling his clients that he saw no authority to detain them,--after having three times demanded the authority, and none had been shown! * * * * * 4. Gentlemen of the Jury, I now come to cases which have happened in our own State,--in this city. Some alarm was felt as soon as Mr. Mason's fugitive slave bill was proposed in the Senate. But men said, "No northern man will support it. There is much smoke and no fire." But when on the 7th of March, 1850, Mr. Webster adopted the bill, and promised to defend it and the amendments to it, "with all its provisions to the fullest extent;" when he declared that Massachusetts would execute the infamous measure "with alacrity"--then not only alarm but indignation took possession of northern breasts. The friends of Slavery at Boston must do all in their power to secure the passage of the bill, the prosperity of its adoptive father, and its ultimate enforcement--the kidnapping of men in Massachusetts. Here are the measures resorted to for attaining this end. i. A meeting was called at the Revere House, that Mr. Webster might defend his scheme for stealing his constituents and putting himself into the Presidency. ii. A public letter was written to him approving of his attempts to restore man-stealing, and other accompaniments of slavery, to the free States. This letter declared the "deep obligations" of the signers "for what this speech has done and is doing;" "we wish to thank you," they say, "for recalling us to our duties under the constitution;" "you have pointed out to a whole people the path of duty, have convinced the understanding, and touched the conscience of the nation;" "we desire, therefore, to express to you our entire concurrence in the sentiments of your speech." This letter was dated at Boston, March 25th, 1850, and received 987 signatures, it is said. iii. When the bill became an Act of government, a hundred cannons, as I have before stated, were fired on Boston Common in token of joy at the restoration of slavery to our New England soil. iv. Articles were written in the newspapers in defence of kidnapping, in justification of the fugitive slave bill. The _Boston Courier_ and _Boston Daily Advertiser_ gave what influence they had in support of that crime against America. v. Several ministers of Boston came out and publicly, in sermons in their own pulpits, defended the fugitive slave bill, and called on their parishioners to enforce the law! Gentlemen of the Jury, need I tell you of the feelings of the Philanthropists of Boston,--of the colored citizens who were to be the victims of this new abomination! Within twenty-four hours of its passage more than thirty citizens of Boston, colored citizens, fled in their peril to a man whose delight it is to undo the heavy burthens and let the oppressed go free. While others were firing their joyful cannon at the prospect of kidnapping their brothers and sisters, Francis Jackson helped his fellow Christians into the ark of Deliverance which he set afloat on that flood of Sin. Gentlemen, he is here to-day--he is one of my bondsmen. There are the others--this venerable gentleman [Samuel May], this steadfast friend [John R. Manley.] vi. It was not long before the kidnappers came here for their prey. (1.) I must dwell a moment on the first attempt. Gentlemen of the Jury, you know the story of William and Ellen Craft. They were slaves in Georgia; their master was said to be a "very pious man," "an excellent Christian." Ellen had a little baby,--it was sick and ready to die. But one day her "owner"--for this wife and mother was only a piece of property--had a dinner party at his house. Ellen must leave her dying child and wait upon the table. She was not permitted to catch the last sighing of her only child with her own lips; other and ruder hands must attend to the mother's sad privilege. But the groans and moanings of the dying child came to her ear and mingled with the joy and merriment of the guests whom the mother must wait upon. At length the moanings all were still--for Death took a North-side view of the little boy, and the born-slave had gone where the servant is free from his master and the weary is at rest--for _there_ the wicked cease from troubling. Ellen and William resolved to flee to the North. They cherished the plan for years; he was a joiner, and hired himself of his owner for about two hundred dollars a year. They saved a little money, and stealthily, piece by piece, they bought a suit of gentleman's clothes to fit the wife; no two garments were obtained of the same dealer. Ellen disguised herself as a man, William attending as her servant, and so they fled off and came to Boston. No doubt these Hon. Judges think it was a very "immoral" thing. Mr. Curtis knows no morality here but "legality." Nay, it was a wicked thing--for Mr. Everett, a most accomplished scholar, and once a Unitarian minister, makes St. Paul command "SLAVES, obey your masters!" Nay, Hon. Judge Sprague says it is a "precept" of our "Divine Master!" Ellen and William lived here in Boston, intelligent, respected, happy. The first blow of the fugitive slave bill must fall on them. In October, 1850, one Hughes, a jailer from Macon, Georgia, a public negro-whipper, who had once beaten Ellen's uncle "almost to death," came here with one Knight, his attendant, to kidnap William and Ellen Craft. They applied to Hon. Mr. Hallett for a writ. Perhaps they had heard (false) rumors that the Hon. Commissioner was "a little slippery in his character;" that he was "not overscrupulous in his conduct;" that he "would do any dirty work for political preferment." Gentlemen, you know that such rumors will get abroad, and will be whispered of the best of men. Of course you would never believe them in this case: but a kidnapper from Georgia might; "distance lends" illusion, as well as "enchantment, to the view." But be that as it may, Mr. Hallett (in 1850) appeared to have too much manhood to kidnap a man. He was better than his reputation; I mean his reputation with Knight and Hughes, and would not (then) steal Mr. and Mrs. Craft. This is small praise; it is large in comparison with the conduct of his official brethren. But for the salvation of the Union another Commissioner was found who had no such scruples. This Honorable Court--Mr. Woodbury was then in the chief place, and Mr. Sprague in his present position--issued the writ of man-stealing. Two gentlemen of this city were eminently, but secretly, active in their attempt to kidnap their victim. I shall speak of them by and by. Somebody took care of Ellen Craft. William less needed help; he armed himself with pistols and a poignard, and walked in the streets in the face of the sun. He was a tall, brave man, and was quite as cool then as this Honorable Court is now, while I relate their "glorious first essay" in man-stealing. Public opinion at length drove the (southern) kidnappers from Boston. Then the Crafts also left the town and the country, and found in the Monarchical Aristocracy of Old England what the New England Democracy refused to allow them--protection of their unalienable right to Life, Liberty, and the pursuit of Happiness. Gentlemen, the Evangelists of slavery could not allow a Southern kidnapper to come to Boston and not steal his man: they were in great wrath at the defeat of Hughes and Knights. So they procured a meeting at Faneuil Hall to make ready for effectual kidnapping and restoring Slavery to Boston. "The great Union meeting" was held at Faneuil Hall November 26th, 1850,--two days before the annual Thanksgiving; it was "a preparatory meeting" to make ready the hearts of the People for that dear New England festival when we thank God for the Harvest of the Land, and the Harvest of the Sea, and still more for the State whose laws are Righteousness, and the Church that offers us "the Liberty wherewith Christ hath made us free," "the glorious Liberty of the Sons of God." Here are the Resolutions which were passed. "Resolved, That the preservation of the Constitution and the Union is the paramount duty of all citizens;--that the blessings which have flowed from them in times past, which the whole country is now enjoying under them, and which we firmly believe posterity will derive from them hereafter, are incalculable; and that they vastly transcend in importance all other political objects and considerations whatever. "Resolved, That it would be folly to deny that there has been and still is danger to the existence of the Union, where there is prevalent so much of a spirit of disunion, constantly weakening its strength and alienating the minds of one part of the people of the United States from another; and that if this spirit be not checked and restrained, and do not give way to a spirit of conciliation and of patriotic devotion to the general good of the whole country, we cannot expect a long continuance of the political tie which has hitherto made us one people; but must rather look to see groups of rival neighboring republics, whose existence will be a state of perpetual conflict and open war. "Resolved, That all the provisions of the Constitution of the United States--the supreme law of the land--are equally binding upon every citizen, and upon every State in the Union;--that ALL laws passed by Congress, in pursuance of the Constitution, are equally binding on all the citizens, and no man is at liberty to resist or disobey any one constitutional act of Congress any more than another; and that we do not desire or intend to claim the benefit of any one of the powers or advantages of the Constitution, and to refuse, or seem to refuse, to perform any part of its duties, or to submit to any part of its obligations. "Resolved, That the adjustment of the measures which disturbed the action of Congress for nearly ten months of its last session, ought to be carried out by the people of the United States in good faith, in all the substantial provisions; _because_, although we may differ with each other about the details of those measures, yet, in our judgment, a renewed popular agitation of any of the main questions then settled, would be fraught with new and extreme dangers to the peace and harmony of the country, which this adjustment has happily restored. "Resolved, That every species and form of resistance to the execution of a regularly enacted law, except by peaceable appeal to the regular action of the judicial tribunals upon the question of its constitutionality--an appeal which ought never to be opposed or impeded--is mischievous, and subversive of the first principles of social order, and tends to anarchy and bloodshed. "Resolved, That men, who directly or indirectly instigate or encourage those who are or may be the subjects of legal process, to offer violent resistance to the officers of the law, deserve the reprehension of an indignant community, and the severest punishment which its laws have provided for their offence; and that we have entire confidence that any combination or attempt to fix such a blot upon the fair fame of our State or city, will be promptly rebuked and punished, by an independent and impartial judiciary, and by firm and enlightened juries. "Resolved, That we will at all times, in all places, and under all circumstances, so far as our acts or influence may extend, sustain the Federal Union, uphold its Constitution, and enforce the duty of obedience to the laws." A singular preparation for a Thanksgiving day in Boston! But on that festival, Gentlemen, three Unitarian ministers thanked God that the fugitive slave bill would be kept in all the land! Several speeches were made at the meeting, some by Whigs, some by Democrats, for it was a "Union meeting," where Herod and Pilate were made friends. Gentlemen, I must depart a little from the severity of this defence and indulge you with some of the remarks of my distinguished opponent, Hon. Attorney Hallett: then he was merely a lawyer, and fugitive slave bill Commissioner, appointed "to take bail, affidavits," and colored men,--he was only an expectant Attorney. His speech was a forerunner of the "Indictment" which has brought us together. Hearken to the words of Mr. Hallett in his "preparatory lecture:"-- "We can now say that there is no law of the United States which cannot be executed in Massachusetts. If there was any doubt before, _there can be no doubt now_; and if there be any wild enough hereafter to resort to a fancied 'Higher Law' to put down law [that is, the fugitive slave bill], they will find in your determined will a stronger law to sustain _all the laws of the United States_." "The threatened nullification comes from Massachusetts upon a law [the fugitive slave bill] which the whole South insist is _vital to the protection of their property and industry_ [much of their "property" and "industry" being addicted to running away]. _And shall Massachusetts nullify that law?_" "The question for us to-day is whether we will in good faith abide by, and carry out these _Peace Measures_ [for the rendition of fugitive slaves, the new establishment of Slavery in Utah and New Mexico, and the restoration of it to all the North] or whether we shall rush into renewed agitation," etc. "Resort is had to a new form of _moral treason_ which assumes by the mysterious power of a '_Higher Law_' to trample down all law [that is, the fugitive slave bill]. Some of our fellow-citizens have avowed that the fugitive slave bill is to be treated like the _Stamp Act_, and never to be enforced in Massachusetts. If that means any thing, it means that which our fathers meant when they resisted the Stamp Act and threw the tea overboard--Revolution.[181] _It_ [opposition to the fugitive slave bill] _is revolution, or it is treason. If it only resists law, and obstructs its officers, it is treason; and he who risks it, must risk hanging for it._"[182] [Footnote 181: The learned counsel for the fugitive slave bill confounds two events. The Stamp Act was passed March 22d, 1765, and repealed the 28th of the next March. The tea was destroyed December 16th, 1773.] [Footnote 182: Report in Boston Courier of November 27th, 1850.] Gentlemen, that meeting determined to execute the fugitive slave bill "with all its provisions, to the fullest extent." It is dreadful to remember the articles in the Daily Advertiser and the Courier at that period. Some of the sermons in the Churches of Commerce on the following Thursday, Thanksgiving day, were filled with the most odious doctrines of practical atheism. The "preparatory meeting" had its effect. Soon the seed bore fruit after its kind. But some ministers were faithful to their Brother and their Lord. (2.) February 15th, 1851, a colored man named "Shadrach" was arrested under a warrant from that Commissioner who had been so active in the attempt to kidnap Mr. and Mrs. Craft. But a "miracle" was wrought: "where sin abounded Grace did much more abound," and "the Lord delivered him out of their hands." Shadrach went free to Canada, where he is now a useful citizen. He was rescued by a small number of colored persons at noonday. The kidnapping Commissioner telegraphed to Mr. Webster, "It is levying war--it is treason." Another asked, "What is to be done?" The answer from Washington was, "Mr. Webster was very much mortified." On the 18th, President Fillmore, at Mr. Webster's instigation, issued his proclamation calling on all well disposed citizens, and _commanding all officers_, "civil and military, to aid and assist in quelling this, and all other such combinations, _and to assist in recapturing the above-named person_" Shadrach. General orders came down from the Secretaries of War and the Navy, commanding the _military and naval officers to yield all practicable assistance_ in the event of such another "_insurrection_." The City Government of Boston passed Resolutions regretting that a man had been saved from the shackles of slavery; cordially approving of the President's proclamation, and promising their earnest efforts to carry out his recommendations. At that time Hon. Mr. Tukey was Marshal; Hon. John P. Bigelow was Mayor; Hon. Henry J. Gardner, a man equally remarkable for his temperance, truthfulness, and general integrity, was President of the Common Council. It was not long, Gentlemen, before the City Government had an opportunity to keep its word. (3.) On the night of the 3d of April, 1851, Thomas Sims was kidnapped by two police officers of Boston, pretending to arrest him for theft! Gentlemen of the Jury, you know the rest. He was on trial nine days. He never saw the face of a jury, a judge only once--who refused the _Habeas Corpus_, the great "Writ of Right." That judge--I wish his successors may better serve mankind--has gone to his own place; where, may God Almighty have mercy on his soul! You remember, Gentlemen, the chains round the Court House; the Judges of your own Supreme Court crawling under the southern chain. You do not forget the "Sims Brigade"--citizen soldiers called out and billeted in Faneuil Hall. You recollect the Cradle of Liberty shut to a Free Soil Convention, but open to those hirelings of the Slave Master. You will never forget the Pro-Slavery Sermons that stained so many Boston pulpits on the "Fast-day" which intervened during the mock trial! Mr. Sims had able defenders,--I speak now only of such as appeared on his behalf, others not less noble and powerful, aided by their unrecorded service--Mr. Sewall, Mr. Rantoul, men always on the side of Liberty, and one more from whose subsequent conduct, Gentlemen of the Jury, I grieve to say it, you would not expect such magnanimity then, Mr. Charles G. Loring. But of what avail was all this before such a Commissioner? Thomas Sims was declared "a chattel personal to all intents, uses, and purposes whatsoever." After it became plain that he would be decreed a slave, the poor victim of Boston kidnappers asked one boon of his counsel, "I cannot go back to Slavery," said he, "give me a knife, and when the Commissioner declares me a slave I will stab myself to the heart, and die before his eyes! I will not be a slave." The knife was withheld! At the darkest hour of the night Mayor Bigelow and Marshal Tukey, suitable companions, admirably joined by nature as by vocation, with two or three hundred police-men armed, some with bludgeons, some with drawn swords and horse pistols, took the poor boy out of his cell, chained, weeping, and bore him over the spot where, on the 5th of March, 1770, the British tyrant first shed New England blood; by another spot where your fathers and mine threw to the ocean the taxed tea of the oppressor. They put him on board a vessel, the "_Acorn_," and carried him off to eternal bondage. "And this is Massachusetts liberty!" said he, as he stepped on board. Boston sent her Delegates to escort him back, and on the 19th of April, 1851, she delivered him up to his tormentors in the jail at Savannah, where he was scourged till human nature could bear no more, while his captors were feasted at the public cost. Seventy-six years before there was another 19th of April, also famous! (4.) Then came the examination and "trial" of the Shadrach Rescuers in February and the following months. Some of these trials took place before his Honor Judge Peleg Sprague. Therefore, you will allow me, Gentlemen, to refresh your memories with a word or two respecting the antecedents of this Judge--his previous history. In 1835 the abolition of Slavery in the British West Indies and the efforts of the friends of Freedom in the Northern States, excited great alarm at the South, lest the "peculiar institution" should itself be brought into peril. Fear of a "general insurrection of the slaves" was talked about and perhaps felt. The mails were opened in search of "incendiary publications;" a piano-forte sent from Boston to Virginia, was returned because the purchaser found an old copy of the "Emancipator" in the case which contained it. Public meetings for the promotion of American Slavery were held. There was one at Boston in Faneuil Hall, August 21, 1835, at which a remarkable speech was made by a lawyer who had graduated at Harvard College in 1812, a man no longer young, of large talents and great attainments in the law. He spoke against discussion, and in behalf of Slavery and Slaveholders: he could see no good, but only unmixed evil "consequent upon agitating this subject here." He said:-- "When did fear ever induce a man to relax his power over the object that excited it? No, he will hold him down with a stronger grasp, he will draw the cords tighter, he will make the chains heavier and sink his victim to a still deeper dungeon." "The language and measures of the abolitionists clearly tend to insurrection and violence." "They [the slaves] hear that their masters have no legal or moral authority over them. That every moment's exercise of such dominion is sin, and that the laws that sanction it are morally void: that they are entitled to immediate emancipation, and that their masters are to be regarded as kidnappers and robbers for refusing it." "It is deluding these unfortunate beings to their own destruction, we should not aid them. The Constitution provides for the suppressing of insurrections ... we should respond to its call [if the slaves attempted to recover their liberty]; nay, we should not wait for such a requisition, but on the instant should rush forward with fraternal emotions to defend our brethren from desolation and massacre." "The South will not tolerate our interference with their slaves, [by our discussing the matter in the newspapers and elsewhere]." "The Union then, if used to disturb this institution of Slavery, will be then as the 'spider's web; a breath will agitate, a blast will sweep it away forever.'" "If, then, these abolitionists shall go on ... the fate of our government is sealed.... And who will attempt to fathom the immeasurable abyss of a dissolution of the Union?" "Tell the abolitionists this; present to them in full array the consequences of their attempts at immediate emancipation, and they meet all by a cold abstraction. They answer, '_We must do right regardless of consequences._'" "They assume that such a course [undoing the heavy burthens and letting the oppressed go free, and loving your neighbor as yourself] _is_ right. When that is the very point in controversy, and when inevitable consequences demonstrate that it must be wrong." "They [the abolitionists] insist upon immediate, instantaneous emancipation.... No man, say they, can be rightfully restrained of his liberty except for crime." "They come to the conclusion that no laws that sanction or uphold it [Slavery] can have any moral obligation. The Constitution is the Supreme law of the land. It does sanction, it does uphold Slavery; and if this doctrine be true, that sacred compact has always been [so far] morally null and void." "He [Washington] THAT SLAVEHOLDER ... came with other Slaveholders to drive the British myrmidons from this city and this Hall. Our fathers did not refuse to hold communion with him or with them. With Slaveholders they formed the Confederation ... with them they made the Declaration of Independence." "And in the original draft of the Declaration was contained a most _eloquent passage upon this very topic of negro Slavery, which was stricken out in deference to the wishes of members from the South_." "Slavery existed then as now." "Our fathers were not less devoted friends of liberty, not less pure as philanthropists or pious as Christians than any of their children of the present day." [Therefore _we_ must not attempt to emancipate a slave!] Here is the passage which the speaker thought it so praiseworthy in the Revolutionary Congress to strike out from the Declaration of Independence:-- "He [the king] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of INFIDEL nations, is the warfare of the CHRISTIAN King of Great Britain. Determined to keep open a market where MEN should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished dye, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he also obtruded them: thus paying off former crimes committed against the LIBERTIES of one people with crimes which he urges them to commit against the LIVES of another." Mr. Jefferson says, "It was struck out in _compliance to South Carolina and Georgia_, who had never attempted to restrain the importation of slaves, and who, on the contrary, still wished to continue it. Our Northern brethren also, I believe, felt a little tender under it, for though their people have very few slaves themselves, yet they have been pretty considerable carriers of them to others." * * * * * But the orator went on protesting against righteousness:-- "I would beseech them [the Abolitionists] to discard their dangerous abstractions [that men are endowed by their Creator with certain natural, equal, and unalienable Rights--to Life, Liberty, and the Pursuit of Happiness] which they [in common with the Declaration of Independence] adopt as universal rules of human conduct--without regard to time, condition, or circumstances; which _darken the understanding and mislead the judgment_, and urge them forward to consequences from which they will shrink back with horror. I would ask them to reflect that ... the religion they profess is not to be advanced by forgetting the precepts and the example of their Divine Master. Upon that example I would ask them to pause. He found Slavery, Roman Slavery, an institution of the country in which he lived. Did he denounce it? Did he attempt its immediate abolition? Did he do any thing, or say any thing which could in its remotest tendency encourage resistance and violence? No, his precept was, 'Servants (Slaves) obey your Masters.'"[183] "It was because _he would not interfere with the administration of the laws, or abrogate their authority_." [Footnote 183: The learned counsel for the slaveholders probably referred to Eph. vi. 5; or Coloss. iii. 22; or Tit. ii. 9; or 1 Pet. ii. 18.] Gentlemen of the Jury, this alleged precept of the "Divine Master" does not occur in any one of the four canonical Evangelists of the New Testament; nor have I found it in any of those Spurious and Apocryphal Records of old time. It appears originally in the Gospel according to the Hon. Peleg Sprague. "Slaves, obey your masters," "a comfortable Scripture" truly; a beatitude for the stealers of men! Gentlemen of the Jury, that was the language of Mr. Peleg Sprague at the time when the State of Georgia offered $5,000 for the head of Mr. Garrison; when the Governors of Virginia and other Slave States, sent letters to the Governor of Massachusetts asking for "penal statutes" to prohibit our discussion in Boston; it was the very year that a mob of "Gentlemen of Property and Standing" in Boston broke up a meeting of women assembled to endeavor to abolish Slavery. Gentlemen of the Jury, Mr. Sprague had his reward--he sits on the bench to try me for a "misdemeanor"--"obstructing, resisting, and opposing an officer of the United States," "while in the discharge of his duty" to steal a man in Boston, that his "owner" might sell him in Richmond. The "chief commandment" of the New Testament is, "Slaves, obey your masters;" on that commandment he would now hang all the law, and the Abolitionists. It would take a long time to tell the dark, sad tale of the trial of the Shadrach Rescuers; how the Judge constructed and charged the Jury; how he constructed his "law." It was the old story of the Stuart despotism, wickedness in the name of the law and with its forms. Gentlemen, in that trial you saw the value of the jury. The Judges of Massachusetts went under the chain which the kidnappers placed about the Court House in 1851. The Federal Judges sought to kidnap the citizens of Boston and to punish all such as opposed man-stealing. The Massachusetts Judges allowed the law, which they had sworn to execute, to be struck down to the ground; nay, themselves sought to strike it down. The Federal Judges perverted the law to make it an instrument of torture against all such as love mankind. But the jury held up the Shield of Justice, and the poisoned weapons of the court fell blunted to the ground. The government took nothing by that motion--nothing but defeat. There was no conviction. One of the jurors said, "You may get one Hunker on any panel; it is not easy to get twelve. There was no danger of a conviction." But still it is painful to think in what peril our lives and our liberties then were. (5.) At length came the "Burns case." You know it too well. On the night of Wednesday, May 26, 1854, in virtue of Commissioner Loring's warrant, Anthony Burns was arrested on the charge of burglary, and thrust into jail. The next morning he was brought up for condemnation. Two noble men, Mr. Dana and my friend Mr. Ellis, defended Mr. Burns. There was to be no regular trial before Commissioner Loring. On the evening of Friday, May 28th, there was a meeting at Faneuil Hall, and an attack on the Court House where Mr. Burns was illegally held in duress. In the attack a Mr. Batchelder was killed,--a man hired to aid in this kidnapping, as he had been in the stealing of Mr. Sims. To judge from the evidence offered before the Grand-Jury of the Massachusetts Court, and especially from the testimony of Marshal Freeman, it appears he was accidentally killed by some of his own confederates in that wickedness, and before the door of the Court House was broken through. But that is of no consequence: as Mr. Dana has said, "He went in for his pay, and has got his _corn_." On Friday, June 4th, Mr. Burns was declared a slave by Commissioner Loring and delivered up to eternal bondage. It seems to be in consequence of my connection with this case that I am indicted; so you now approach the end of this long defence. I come to the last part of it. * * * * * (III.) Of the Indictment against Theodore Parker. I am indicted, gentlemen, for "resisting an officer" who was engaged in kidnapping Mr. Burns; and it is charged that I, at Boston, May 26th, "with force and arms did knowingly and wilfully, obstruct, resist, and oppose, ... Watson Freeman, then and there being an officer of the United States, to the great damage of the said Watson Freeman; to the great hinderance and obstruction of justice, [to wit, of the kidnapping of Anthony Burns,] to the evil example of all others in like case offending, against the peace and dignity of the said United States and contrary to the form of the statute made and provided." It is also charged that "one Theodore Parker of Boston, ... with force and arms in and upon the said Watson Freeman, then and there, in the peace of the said United States being, an assault did make, he the said Freeman also then and there being an officer of the said United States, to wit, Marshal of the United States, ... and then and there also being in the due and lawful discharge of his duties as such officer" [to wit, stealing and kidnapping one Anthony Burns]. These and various other pleasant charges, Mr. Hallett, in the jocose manner of indictments, alleges against me; wherefrom I must defend myself, as best I may. * * * * * Now, Gentlemen, that you may completely understand the accusation brought against me, I must go back a little, and bring up several other matters of fact that have straggled away from this long column of argument which I have led into the field thus far;--and also rally some new forces not before drawn into the line of defence. I must speak of the Hon. Justice Curtis; of his conduct in relation to Slavery in general, to this particular prosecution, and to this special case, _United States_ vs. _Theodore Parker_. First, Gentlemen, let me speak of some events which preceded Mr. Curtis's elevation to his present distinguished post. To make the whole case perfectly clear, I must make mention of some others intimately connected with him. There is a family in Boston which may be called the Curtis family. So far as it relates to the matter in hand, it may be said to consist of six persons, namely, Charles P. Curtis, lawyer, and Thomas B. Curtis, merchant, sons of the late Thomas Curtis; Benjamin R. Curtis, by birth a kinsman, and by marriage a son-in-law of Charles P. Curtis, late a practising lawyer, now this Honorable Judge of the Supreme Court of the United States, and his brother, George T. Curtis, lawyer, and United States Commissioner for the District of Massachusetts; Edward G. Loring, a step-son of the late Thomas Curtis, and accordingly step-brother of Charles P. and Thomas B. Curtis, lawyer, Judge of Probate for Boston, United States Commissioner, and, until recently, Lecturer at the Cambridge Law School; and also William W. Greenough, son-in-law of Charles P. Curtis, merchant. This family, though possessing many good qualities, has had a remarkably close and intimate connection with all, or most, of the recent cases of kidnapping in Boston. Here are some of the facts, so painful for me to relate, but so indispensable to a full understanding of this case. 1. In 1836 Charles P. Curtis and Benjamin R. Curtis appeared as counsel for the slave-hunters in the famous case of the girl Med, originally a slave in the West Indies, and brought to Boston by her mistress. Med claimed her freedom on the ground that slavery was not recognized by the laws of Massachusetts, and could not exist here unless it were in the special case, under the Federal Constitution, of fugitives from the slave States of this Union. The Messrs. Curtis contended with all their skill--_totis viribus_, as lawyers say--that slavery might, by legal comity, exist in Massachusetts--that slaves were property by the law of nations; and that an ownership which is legal in the West Indies continued in Boston, at least so far as to leave the right to seize and carry away. Mr. Charles P. Curtis had already appeared as counsel for a slave-hunter in 1832, and had succeeded in restoring a slave child, only twelve or fourteen years of age, to his claimant who took him to Cuba with the valuable promise that he should be free in the Spanish West Indies.[184] [Footnote 184: Daily Advertiser, Dec. 7th, 1832. Mr. Sewall, the early and indefatigable friend of the slave, asked the Court to appoint a guardian _ad litem_ for the child, who was not 14, who should see that he was not enslaved. But the slaveholder's counsel objected, and the Judge (Shaw) refused; yet to his honor be it said in a similar case in 1841, when Mr. Sewall was counsel for a slave child under the same circumstances, he delivered him to a guardian appointed by the Probate Court. 3 Metcalf, 72.] In the Med case Mr. Benjamin R. Curtis made a long and elaborate argument to show that "a citizen of a slaveholding State, who comes to Massachusetts for a temporary purpose of business or pleasure and brings his slave as a personal attendant, may restrain that slave for the purpose of carrying him out of the State and returning him to the domicil of his owner." To support this proposition, he made two points:-- "1. That this child by the law of Louisiana is _now_ a slave." "2. That the law of Massachusetts will so far recognize and give effect to the law of Louisiana, as to allow the master to exercise this restricted power over his slave." That is, the power to keep her here as a slave, to remove her to Louisiana, and so make her a slave for ever and her children after her. To prove this last point he says by quotation, "we always _import_, together with their persons, _the existing relations of foreigners between themselves_." So as we "import" the natural relation of husband and wife, or parent and child, in the Irish immigrants, and respect the same, we ought equally to import and respect the unnatural and forcible relation of master and slave in our visitors from Cuba or Louisiana. "It will be urged," he said, "that though we claim to exercise only a qualified and limited right over the slave, namely the right to remove him from the State, yet if this is allowed, all the rights of the master must be allowed, ... and thus Slavery will be introduced into the Commonwealth. To this I answer, "(1.) There is no practical difficulty in giving this qualified effect to the law of Louisiana, [allowing the master to bring and keep his slaves here and remove them when he will]. The Constitution of the United States has settled this question. That provides for and secures to the master, the exercise of his right to the very extent claimed in this case." "(2.) Neither is there any theoretical difficulty." To do this, he thinks, will "promote harmony and good feeling, where it is extremely desirable to promote it, encourage frequent intercourse, and soften prejudices by increasing acquaintance, and tend to peace and union and good-will." "It will work no injury to the State [Massachusetts], by violating any public law of the State. The only law in the statute-book applicable to the subject of Slavery is the law against kidnapping." "It will work no direct injury to the citizens of this State for, ... it respects only strangers." "It is consistent with the public policy of Massachusetts, to permit this ... right of the master." "_It may be perfectly consistent with our policy not only to recognize the validity and propriety of those institutions_ [of Slavery] _in the States where they exist_, but _even to interfere actively to enable the citizens of those States to enjoy those institutions at home._" That is, it may be the duty of Massachusetts, "to interfere actively" in Louisiana for the establishment and support of Slavery there! Pennsylvania, New York, New Jersey, and Rhode Island, he adds, have made laws allowing the slaveholder this right: "The legislatures of those States are the legitimate and highest authority in regard to their public policy; what they have declared on this subject, must be deemed to be true.... We are not at liberty to suppose that it is contrary to their public policy, that the master should exercise this right within their territory. I respectfully ask what difference there is between the policy of Pennsylvania, New York, Rhode Island, and New Jersey, and the policy of Massachusetts, on the subject of Slavery." "I shall now attempt," he adds, "to prove that _Slavery is not immoral_." How do you think he proved that? Did he cite the Bible? No, he left that to lower law divines. Did he manufacture Bible? No, the Hon. Peleg Sprague had sufficiently done that a year before. He took a shorter cut--he denied there was any morality but Legality. "I take it to be perfectly clear," said this young man in all the moral enthusiasm of his youth, "that the Standard of Morality by which Courts of Justice are to be guided is that which the law prescribes. Your Honors' Opinion as Men or as Moralists has no bearing on the question. Your Honors are to declare what the Law deems moral or immoral." Gentlemen, that needs no comment; this trial is comment enough. But according to that rule no law is immoral. It was "not immoral" in 1410 to hang and burn thirty-nine men in one day for reading the Bible in English; the Catholic Inquisition in Spain was "not immoral;" the butchery of Martyrs was all right soon as lawful! There is no Higher Law! It was "not immoral" for the servants of King Pharaoh to drown all the new-born Hebrew boys; nor for Herod's butchers to murder the Innocents at Bethlehem. Nay, all the atrocities of the Saint Bartholomew Massacres, Gentlemen, they were "not immoral," for "the Standard of Morality" is "that which the law prescribes." So any legislature that can frame an act, any tyrant who can issue a decree, any court which can deliver an "opinion," can at once nullify the legislation of the Universe and "dissolve the union" of Man and God: "Religion has nothing to do with politics; there it makes men mad." Is that the doctrine of Young Massachusetts? Hearken then to the Old. In 1765 her House of Representatives unanimously resolved that "there are certain essential Rights ... which are founded on the Law of God and Nature, and are the Common Rights of Mankind, and that the inhabitants of this Province are unalienably entitled to these essential Rights in common with all men, and _that no law of Society ... can divest them of these Rights_." No "Standard of Morality" but Law! A thousand years before Jesus of Nazareth taught his Beatitudes of Humanity, the old Hebrews knew better. Hearken to a Psalm nearly three thousand years old. Among the assemblies of the great, A Greater Ruler takes his seat; The God of Heaven, as Judge, surveys Those Gods on earth, and all their ways. Why will ye, then, frame wicked laws? Or why support the unrighteous cause? When will ye once defend the poor, That sinners vex the Saints no more? Arise, oh Lord, and let thy Son Possess his universal Throne, And rule the nations with his rod; He is our Judge, and he our God. "By the _law of this Commonwealth_," added Mr. Curtis, "_Slavery is not immoral._ By the Supreme law of this Commonwealth Slavery is not only recognized as a valid institution, but to a certain extent is incorporated into our own law. Before you [the court] rise from your seats, you may be called upon by the master of a fugitive slave, to grant a certificate ... which _will put the whole force of the Commonwealth at his disposal, to remove his slave from our Territory_." Gentlemen of the Jury, that was conquering his prejudices "with alacrity;" it was obeying the fugitive slave bill fourteen years before it was heard of. He adds still further, by quotation, "I have no doubt but the citizen of a Slave State has a right to pass, upon business or pleasure, through any of the States attended by his slaves--and his right to reclaim his slave would be unquestioned. An escape from the attendance upon the person of his master, while on a journey through a free State, should be considered as an escape from the State where the master had a right of citizenship." Mr. Charles P. Curtis thus sustained his kinsman:-- "Is that to be considered immoral which the Court is bound to assist in doing? _It is not for us to denounce as_ legally _immoral a practice which is permitted_ and sanctioned _by the supreme law of the land_!" "It is said the practice of Slavery is corrupting in its influence on public morals. But the practice of bringing slaves here was much more common thirty years ago than now. If this practice be so corrupting, why is it tolerated in other States?"... "The law of New York allows even foreigners to go there with their slaves; and have the morals of that State suffered in consequence? In Pennsylvania the law is similar, but where is the evidence of its pernicious influence?" "As to the _right to using them_, [the slaves voluntarily brought here by their masters,] _notwithstanding the supposed horror at such an admission_, the legislatures of New York and Pennsylvania, Rhode Island and New Jersey, have actually enacted statutes allowing precisely that privilege."[185] [Footnote 185: Med. Case, 1836.] But the Supreme Court of Massachusetts held otherwise. Med was declared free. Chief Justice Shaw covered himself with honor by his decision. And soon after, (Aug. 29,) the Daily Advertiser, the "organ" of the opinions of this family, said:-- "In some of the States there is ... legislative provision for cases of this sort, [allowing masters to bring and hold slaves therein,] and it would seem that _some such provision is necessary in this State_, unless we would prohibit citizens of the Slave States from travelling in this State with their families, and unless we would permit such of them as wish to emancipate their slaves, to throw them, at their pleasure, upon the people of this State." Gentlemen, Mr. Curtis in 1836 contended for all which Mr. Toombs boasts he shall get--the right of the slaveholder to sit down at the foot of Bunker Hill monument with his slaves! Nay, Mr. Curtis granted more: it may be the duty of Massachusetts "to interfere actively," and establish slavery in Louisiana, or in Kansas. It may be said, this was only a lawyer pleading for his client. It was--a lawyer asking the Supreme Court of Massachusetts to establish slavery in this Commonwealth. Is it innocent in a lawyer to ask the court to do a wicked thing, to urge the court to do it? Then is it equally innocent to ask the Treasurer of a Railroad to forge stock, or an editor to publish lies, or a counterfeiter to make and utter base coin, or an assassin to murder men. Surely it is as innocent to urge men to kidnap blacks in Africa as in Boston. Gentlemen, That declaration--that the Statute supersedes natural Justice, and that the only "Standard of Morality" by which the courts are to be guided is "that which the law prescribes"--deserves your careful consideration. "He that squares his conscience by the law is a scoundrel"--say the proverbs of many nations. What do you think of a man who knows no lawgiver but the General Court of Massachusetts, or the American Congress: no Justice but the Statutes? If Mr. Curtis's doctrine is correct, then Franklin, Hancock, Adams, Washington, were only Rebels and Traitors! They refused that "Standard of Morality." Nay, our Puritan Fathers were all "criminals;" the twelve Apostles committed not only "misdemeanors" but sins; and Jesus of Nazareth was only a malefactor, a wanton disturber of the public peace of the world! The slave child Med, poor, fatherless, and unprotected, comes before the Supreme Court of Massachusetts, claiming her natural and unalienable Right to Liberty and the Pursuit of Happiness,--if not granted she is a slave for ever. In behalf of her wealthy "owner" Mr. Curtis resists the girl's claim; tells the court she "is now a slave;" there is "no practical difficulty" in allowing the master to keep her in that condition, no "theoretical difficulty;" "slavery is not immoral;" it may be the duty of Massachusetts not only to recognize slavery at home, but also "even to interfere actively" to support slavery abroad; the law is the only "Standard of Morality" for the courts; that establishes slavery in Massachusetts! Gentlemen, what do mankind say to such sophistry? Hearken to this Hebrew Bible: "Wo unto them that decree unrighteous decrees, and that write grievousness which they have prescribed, to turn aside the needy from judgment, and to take away the Right from the poor of my people, that widows may be their prey, and _that they may rob the fatherless_." Let the stern Psalm of the Puritans still further answer from the manly bosom of the Bible. "Judges who rule the world by laws, Will ye despise the righteous cause, When the injured poor before you stands? Dare ye condemn the righteous poor And let rich sinners 'scape secure, While Gold and Greatness bribe your hands? "Have ye forgot, or never knew, That God will judge the judges too? High in the Heavens his Justice reigns; Yet you invade the rights of God, And send your bold decrees abroad, To bind the Conscience in your chains. "Break out their teeth, eternal God, Those teeth of lions dy'd in blood; And crush the serpents in the dust; As empty chaff, when whirlwinds rise, Before the sweeping tempest flies, So let their hopes and names be lost. "Thus shall the Justice of the Lord Freedom and peace to men afford; And all that hear shall join and say, Sure there's a God that rules on high, A God that hears his children cry, And all their sufferings will repay." 2. After Mr. Webster had made his speech of March 7, 1850, pledging himself and his State to the support of the fugitive slave bill, then before Congress, "to the fullest extent," Thomas B. Curtis, with the help of others, got up a letter to Mr. Webster, dated March 25, 1850, signed, it is said, by 987 persons, who say: "We desire to express to you our deep obligations for what this speech has done and is doing." "You have pointed out to a whole people the path of duty, have convinced the understanding and touched the conscience of the nation." "We desire, therefore, to express to you our entire concurrence in the sentiments of your speech." 3. A little later, Mr. Webster returned to Boston, and was "rapturously received" at the Revere House, April 29, 1850, by a "great multitude," when Benjamin R. Curtis made a public address, and expressed his "abounding gratitude for the ability and fidelity" which Mr. Webster had "brought to the defence of the Constitution and of the Union," and commended him as "_eminently vigilant, wise, and faithful to his country, without a shadow of turning_." 4. Presently, after the passage of the fugitive slave bill, at a dinner party, at the house of a distinguished counsellor of Boston, Charles P. Curtis declared that he hoped the first fugitive slave who should come to Boston would be seized and sent back! 5. Charles P. Curtis and his step-brother Edward G. Loring, and George T. Curtis, defended the fugitive slave bill by writing articles in the _Boston Daily Advertiser_. 6. In November, 1850, the slave-hunters, thus invited and encouraged, came to Boston, seeking to kidnap William and Ellen Craft: but they in vain applied to Commissioner Benj. F. Hallett, and to Judges Woodbury and Sprague, for a warrant to arrest their prey. Finally, they betook themselves to Commissioner George T. Curtis, who at once agreed to grant a warrant; but, according to his own statement, in a letter to Mr. Webster, Nov. 23, 1850, as he anticipated resistance, and considered it very important that the Marshal should have more support than it was in his power as a Commissioner to afford, he procured a meeting of the Commissioners, four in number, and with their aid succeeded in persuading the Circuit Court, then in session, to issue the warrant. Gentlemen, as that letter of Mr. George T. Curtis contains some matters which are of great importance, you will thank me for refreshing your memory with such pieces of history. "An application [for a warrant to arrest Mr. Craft] had already been made to the judges [Messrs. Woodbury and Sprague] privately ... they could not grant a warrant on account of the pendency of an important Patent Cause then on trial before a jury." "To this I replied, that ... the ordinary business of the Court ought to give way for a sufficient length of time, to enable the judges to receive this application and to hear the case." "On a private intimation to the presiding judge of our desire to confer with him [the desire of the kidnapping commissioners, Mr. B.F. Hallett, Mr. Edward G. Loring, Mr. C.L. Woodbury, and Mr. G.T. Curtis] the jury were dismissed at _an earlier hour than usual, ... and every person present except the Marshal's deputies left the room, and the doors were closed_." "The learned Judge said ... that he would attend at half past eight the next morning, to grant the warrant." "A process was placed in the hands of the Marshal ... in the execution of which he might be called upon to _break open dwelling-houses, and perhaps take life_, by quelling resistance, actual or _threatened_." "I devoted at once a good deal of time to the necessary investigations of the subject." "There is a great deal of legislation needed to make the general government independent of State control," says this "Expounder of the Constitution," "and independent of the power of mobs, whenever and wherever its measures chance to be unpopular." "The office of United States Marshal is by no means organized and fortified by legislation as it should be to encounter popular disturbance." 7. The warrant having been issued for the seizure of Mr. Craft, Marshal Devens applied to Benjamin R. Curtis for legal advice as to the degree of force he might use in serving it, and whether it ought to be regarded as a civil or a criminal process. George T. Curtis was employed by his brother to search for authorities on these points. They two, together, as appears from the letter of George T. Curtis to Mr. Webster, induced Marshal Devens to ask a further question, which gave Benjamin R. Curtis an opportunity to come out with an elaborate opinion in favor of the constitutionality of the fugitive slave bill, dated November 9, 1850. This was published in the newspapers. In order to maintain the constitutionality of this act, Benjamin R. Curtis was driven to assume, as all its defenders must, that the Commissioner, in returning the fugitive, performs none of the duties of a Judge; that the hearing before him is not "a case arising under the laws of the United States;" that he acts not as a judicial, but merely as an executive and "ministerial" officer--not deciding him to be a slave, but merely giving him up, to enable that point to be tried elsewhere.[186] But, spite of this opinion, public justice and the Vigilance Committee forced the (Southern) slave-hunters to flee from Boston, after which, Mr. and Mrs. Craft left America to find safety in England, the evident rage and fierce threats of the disappointed Boston slave-hunters making it unsafe for them to remain. [Footnote 186: On this see Hildreth's Despotism, 262, 280. Commissioner Loring considers that the fugitive slave bill commissioners have "_judicial_ duties." Remonstrance to General Court, 2.] 8. After the failure of this attempt to arrest Mr. Craft, Thomas B. Curtis got up a "Union Meeting" at Faneuil Hall, November 26, 1850.[187] The call was addressed to such as "regard with disfavor all further popular agitation" of the subject of Slavery. Thomas B. Curtis called the meeting to order: William W. Greenough, from the "Committee of Arrangements," presented the resolutions, which you have already heard.[188] It was said at the time that they were written, wholly or in part, by Mr. Benjamin R. Curtis, who moved their adoption and made a long and elaborate speech thereon. [Footnote 187: See Mr. Curtis's letter in Daily Advertiser of February 7, 1855.] [Footnote 188: See above, p. 148, 149.] Gentlemen of the Jury, as I just now gave you some passages from Mr. Hallett's speech on that occasion, allow me now to read you some extracts from Mr. Curtis's address. The general aim of the speech was to reconcile the People to kidnapping; the rhetorical means to this end were an attempt to show that kidnapping was expedient; that it was indispensable; that it had been long since agreed to; that the Slaves were foreigners and had no right in _Massachusetts_. He said:-- "We have come here not to consider particular measures of government but to assert that we have a government, not to determine whether this or that law be wise or just, but to declare that there is law, and its duties and power." "Every sovereign State has and must have the right to judge _what persons from abroad_ shall be admitted." "Are not these persons [fugitive slaves] foreigners as to us--and what right have they to come here at all, _against the will of the legislative power of the State_. [Massachusetts had no legislation forbidding them!] And if their coming here or remaining here, is not consistent with the safety of the State and the welfare of the citizens _may we not_ prohibit their coming, or _send them back_ if they come?" "_To deny this_ is to deny the right of self-preservation to a State.... It ... _throws us back at once into a condition below the most degraded savages who have a semblance of government_." "You know that the great duty of justice could not otherwise be performed, [that is without the fugitive-from-labor clause in the Constitution]; that our peace at home and our safety from foreign aggression could not otherwise be insured; and that only by this means could we obtain 'the Blessings of Liberty' to the people of Massachusetts and their posterity." "In no other way could we become an example of, and security for, the capacity of man, safely and peacefully and wisely to govern himself under free and popular institutions." So the fugitive slave bill is an argument against human depravity, showing the capacity of man to govern himself "safely and peacefully and wisely." He adds, as early as 1643 the New England colonies found it necessary "to insert an article substantially like this one," for the rendition of fugitive servants, and in 1789 the Federal government demanded that the Spaniards should surrender the fugitive slaves of Georgia. Injustice, Gentlemen, has never lacked a precedent since Cain killed Abel. Mr. Curtis continues:-- "When I look abroad over 100,000 happy homes in Massachusetts and see a people, such as the blessed sun has rarely shone upon, so intelligent and educated, moral, religious, progressive, and free to do every thing but wrong--I fear to say that I should not be in the wrong to put all this at risk, because our _passionate will_ impels us to break a promise our wise and good fathers made, not to allow a _class of foreigners_ to come here, or to _send them back if they came_." So the refusal to kidnap Ellen and William Craft came of the "_passionate will_" of the people, and is likely to ruin the happy homes of a moral and religious people! "_With the rights of these persons_ I firmly believe _Massachusetts has nothing to do_. It is enough for us that they have no right to be _here_. Whatever natural rights they have--and I admit these natural rights to their fullest extent--this is not the _soil_ on which to vindicate them. This is _our_ soil, sacred to _our_ peace, on which we intend to perform _our_ promises, and work out for the benefit of ourselves and our posterity and the world, the destiny which our Creator has assigned to _us_." Gentlemen of the Jury, it is written of that Creator that He is "no Respecter of Persons;" and "hath made of one blood all nations of men for to dwell on all the face of the earth." The "Our Creator" of Mr. Curtis is also the Father of William and Ellen Craft; and that great Soul who has ploughed his moral truths deep into the history of mankind, represents the final Judge of us all as saying to such as scorned his natural Law of Justice and Humanity, "INASMUCH AS YE DID IT NOT TO ONE OF THE LEAST OF THESE YE DID IT NOT TO ME." Massachusetts is "our soil," is it; "sacred to _our_ peace," which is to be made sure of by stealing our brother men, and giving to Commissioners George T. Curtis and Edward G. Loring ten dollars for making a slave, and only five for setting free a man! Peace and the fugitive slave bill! No, Gentlemen of the Jury, it is vain to cry Peace, Peace--when there is no peace! Ay, there _is_ no peace to the wicked; and though the counsel of the ungodly be carried, it is carried headlong! In that speech, Gentlemen, Mr. Curtis made a special attack upon me:-- "There has been made within these walls," said he, "the declaration that an article of the Constitution [the rendition clause] of the United States 'shall not be executed, _law or no law_.' A gentleman offered a resolve ... that 'constitution or no constitution, law or no law, we will not allow a fugitive slave to be taken from Massachusetts.' The chairman of a public meeting [Hon. Charles Francis Adams, on October 14th] declared here that 'the law will be resisted, and if the fugitive resists, and if he slay the slave-hunter, or even the Marshal, and if he therefor be brought before a Jury of Massachusetts men, that Jury will not convict him.' And as if there should be nothing wanting to exhibit the madness which has possessed men's minds, _murder and perjury_ have been enacted into virtues, and in this city preached from the sacred desk. I must not be suspected of exaggerating in the least degree. I read therefore the following passage from a sermon preached and published in this city:-- "'Let me suppose a case which may happen here and before long. A woman flies from South Carolina to Massachusetts to escape from bondage. Mr. Greatheart aids her in her escape, harbors and conceals her, and is brought to trial for it. The punishment is a fine of one thousand dollars and imprisonment for six months. I am drawn to serve as a juror and pass upon this offence. I may refuse to serve and be punished for that, leaving men with no scruples to take my place, or I may take the juror's oath to give a verdict according to the law and the testimony. The law is plain, let us suppose, and the testimony conclusive. Greatheart himself confesses that he did the deed alleged, saving one ready to perish. The judge charges that if the jurors are satisfied of that fact then they must return that he is guilty. This is a nice matter. Here are two questions. The one put to me in my official capacity as juror, is this: "Did Greatheart aid the woman?" The other, put to me in my natural character as man, is this: "Will you help punish Greatheart with fine and imprisonment for helping a woman obtain her unalienable rights?" If I have extinguished my manhood by my juror's oath, then I shall do my official business and find Greatheart guilty, and I shall seem to be a true man; but if I value my manhood I shall answer after my natural duty to love man and not hate him, to do him justice, not injustice, to allow him the natural rights he has not alienated, and shall say, "Not guilty." Then men will call me forsworn and a liar, but I think human nature will justify the verdict.'" "I should like to ask," he continued, "the reverend gentleman in what capacity he expects to be punished for his _perjury_?" Gentlemen of the Jury, I rose and said, "Do you want an answer to your question, sir?" He had charged me with preaching murder and perjury; had asked, How I expected to be punished for my own "PERJURY?" When I offered to answer his question he refused me the opportunity to reply! Thus, Gentlemen, he charged me with recommending men to commit perjury! Did he think I advised men to take an oath and break it? On the other side of the page which he read there stood printed:-- "Suppose a man has sworn to keep the Constitution of the United States, and the Constitution is found to be wrong in certain particulars; then his oath is not morally binding, for before his oath, by his very existence, he is morally bound to keep the law of God as fast as he learns it. No oath can absolve him from his natural allegiance to God. Yet I see not how a man can knowingly, and with a good Conscience, swear to keep what he deems it wrong to keep, and will not keep, and does not intend to keep." Gentlemen, when that speech came to be printed--there was no charge of "perjury" at all, but a quite different sentence![189] [Footnote 189: See the speech in Boston Courier of November 27th, with the editorial comment, and in Daily Advertiser of 28th, _Thanksgiving Day_. See also the Atlas of November 27th. The Sermon is in 2 Parker's Speeches, 241.] 9. In February, 1851, George T. Curtis issued the warrant for the seizure of Shadrach, who was "hauled" in to the court house before that Commissioner; but "the Lord delivered him out of their hands," and he also escaped out of the United States of America. 10. After the escape or rescue of Shadrach, George T. Curtis telegraphed the news to Mr. Webster, at Washington, declaring "it is levying war;" thus constructing high treason out of the rescue of a prisoner by unarmed men, from the hands of a sub-deputy officer of the United States. 11. George T. Curtis also officiated as Commissioner in the kidnapping of Thomas Sims, in April, 1851; and under the pretence of "extradition," sent him to be scourged in the jail of Savannah, and then to suffer eternal bondage. It was rumored at the time that Charles P. Curtis and Benjamin R. Curtis, his law-partner and son-in-law, were the secret legal advisers and chamber-counsel of the Southern slave-hunters in this case. I know not how true the rumor was, nor whether it was based on new observation of facts, or was merely an inference from their general conduct and character. 12. When Mr. Sims was brought before Judge Woodbury, on _habeas corpus_, Benjamin R. Curtis appeared as counsel for the Marshal, and also assisted Judge Woodbury in strengthening his opinion against Sims, by a written note transmitted by an officer of the Court to the Judge, while he was engaged in delivering his opinion. 13. Gentlemen of the Jury, I have shown you how, in Britain, the Government, seeking to oppress the people and to crush down freedom of speech, put into judicial offices such men as were ready to go all lengths in support of profitable wickedness. You do not forget the men whom the Stuarts made judges: surely you remember Twysden, and Kelyng, and Finch, and Saunders, and Scroggs. You will not forget Edmund Thurlow and John Scott. Well, Gentlemen, in 1851, Judge Woodbury died, and on the recommendation of Mr. Webster, Mr. Benjamin R. Curtis was raised to the dignity he now holds. Of course, Gentlemen, the country will judge of the cause and motive of the selection. No lawyer in New England had laid down such southern "Principles" for foundation of law; he outwent Mr. Sprague. None had rendered such service to the Slave Power. In 1836, he had sought to restore slavery to Massachusetts, and to accomplish that had denied the existence of any Higher Law,--the written statute was the only standard of judicial morals. In 1850, he had most zealously defended the fugitive slave bill,--coming to the rescue of despotism when it seemed doubtful which way the money of Boston would turn, and showing most exemplary diligence in his attempts to kidnap William and Ellen Craft. Gentlemen, if such services were left unpaid, surely "the Union would be in danger!" But I must go on with my sad chronicle. 14. As Circuit Judge of the United States, Benjamin R. Curtis, as well in the construction of juries, as in the construction of the law, exerted all his abilities against the parties indicted for the rescue of Shadrach, though Mr. Hale says his conduct was far better than Judge Sprague's. He did this especially in the case of Elizur Wright, who appeared without counsel, and thus afforded a better opportunity to procure a conviction. But it was in vain--all escaped out of his hands. 15. In 1851, George T. Curtis brought an action for libel against Benjamin B. Mussey, bookseller, who had just published a volume of speeches by the Hon. Horace Mann, one of which was against the business of kidnapping in Boston, wherein George T. Curtis found, as he alleged, matter libellous of himself. That suit remains yet undisposed of; but in it he will doubtless recover the full value of his reputation, on which kidnapping has affixed no stain. 16. In May, 1854, Edward G. Loring issued a warrant for the seizure of Mr. Burns; decided the case before he heard it, having advised the counsel not to oppose his rendition, for he would probably be sent back; held him ironed in his "court," and finally delivered him over to eternal bondage. But in that case, it is said, Mr. Loring, who has no Curtis blood in his veins, did not wish to steal a man; and proposed to throw up his commission rather than do such a deed; but he consulted his step-brother, Charles P. Curtis, who persuaded him it would be dishonorable to decline the office of kidnapping imposed upon him as a United States Commissioner by the fugitive slave bill. Benjamin R. Curtis, it is said, I know not how truly--himself can answer, aided Mr. Loring in forming the "opinion" by which he attempted to justify the "extradition" of Mr. Burns; that is to say, the giving him up as a slave without any trial of his right to liberty, merely on a presumptive case established by his claimant. 17. After Commissioner Loring had seized Mr. Burns, Mr. George T. Curtis, by a communication published in the newspapers, informed the public that he still continued the business of man-hunting at the old stand, where all orders for kidnapping would be promptly attended to. For, he says, there was a statement "that I had declined, or was unwilling or afraid to act. I did not choose that any one whatever should have an excuse for believing that Judge Loring was willing to sit in a case that I had declined." "I thought proper to place myself as it were by his side." "But I never took a fee [for kidnapping], and I never shall take one."[190] Did he remember the fate of the Hebrew Judas, who "betrayed the Innocent Blood," and then cast down the thirty pieces? [Footnote 190: See Boston Journal of May 29, and Boston Courier of June 7, 1854.] Hitherto the kidnapping commissioners, though both members of the same family, had pursued their game separately, each on his own account. After this it appears these two are to hunt in couples: Commissioner Loring and Commissioner Curtis "as it were by his side:"-- "Swift in pursuit, but matched in mouth like bells, _Each under each_." Gentlemen of the Jury, it is a very painful thing for me to deliver this very sad chronicle of such wicked deeds. But do not judge these men wholly by those acts. I am by no means stingy of commendation, and would rather praise than blame. The two elder Messrs. Curtis have many estimable and honorable qualities,--in private relations it is said--and I believe it--they are uncommonly tender and delicate and refined in the elegant courtesies of common life. I know that they have often been open-handed and generous in many a charity. In the ordinary intercourse of society, where no great moral principle is concerned, they appear as decorous and worthy men. Hon. Benj. R. Curtis,--he will allow me to mention his good qualities before his face,--though apparently destitute of any high moral instincts, is yet a man of superior powers of understanding, and uncommon industry; as a lawyer he was above many of the petty tricks so common in his profession. Strange as it may seem, I have twice seen Mr. George T. Curtis's name among others who contributed to purchase a slave; Mr. Loring's good qualities I have often mentioned, and always with delight. But this family has had its hand in all the kidnapping which has recently brought such misery to the colored people and their friends; such ineffaceable disgrace upon Boston, and such peril to the natural Rights of man. These men have laid down and advocated the principles of despotism; they have recommended, enforced, and practised kidnapping in Boston, and under circumstances most terribly atrocious. Without their efforts we should have had no man-stealing here. They cunningly, but perhaps unconsciously, represented the low Selfishness of the Money Power at the North, and the Slave Power at the South, and persuaded the controlling men of Boston to steal Mr. Sims and Mr. Burns. In 1836 they sought to enslave a poor little orphan girl, and restore bondage to Massachusetts; in 1851 they succeeded in enthralling a man. Now, Gentlemen, they are seeking to sew up the mouth of New England; there is a sad consistency in their public behavior. Gentlemen, they are not ashamed of this conduct; when "A Citizen of Boston," last January, related in the New York Tribune some of the facts I have just set forth, "One of the name" published his card in that paper and thanked the "Citizen" for collecting abundant evidence that the "Curtis Family" "have worked hard to keep the _law_ superior to fanaticism, disloyalty, and the _mob_," and declared that "they feel encouraged to continue in the same course and _their children after them_."[191] Mr. Thomas B. Curtis considers some of the acts I have just mentioned "among the most meritorious acts" of his life.[192] Mr. Loring, in his "Remonstrance," justifies Kidnapping! [Footnote 191: New York Tribune, January 15, 1855.] [Footnote 192: Daily Advertiser, February 7, 1855.] They may, indeed, speak well of the bridge which carries them safe over. Three of the family are fugitive slave bill commissioners; one of them intellectually the ablest, perhaps morally the blindest, who so charged me with "Perjury," is the Honorable Judge who is to try me for a "Misdemeanor." Of course he is perfectly impartial, and has no animosity which seeks revenge,--the history of courts forbids the supposition! Such, Gentlemen, are the antecedents of the Hon. Judge Curtis, such his surroundings. You will presently see what effect they have had in procuring this indictment. It a sad tale that I have presented. He told it, not I; he did the deeds, and they have now found words. * * * * * Gentlemen of the Jury, I shall next speak of Judge Curtis's charge to the grand-jury, delivered in Boston, June 7, 1854--only five days after his kinsman had sent Mr. Burns into Slavery. Here is that part of the charge which relates to our case. "There is another criminal law of the United States to which I must call your attention, and give you in charge. It was enacted on the 13th of April, 1790, and is in the following words:-- "'If any person shall knowingly or wilfully obstruct, resist, or oppose any officer of the United States, in serving, or attempting to serve, or execute any mesne process, or warrant, or any rule or order of any of the courts of the United States, or any other legal writ or process whatever, or shall assault, beat, or wound any officer, or other person duly authorized, in serving or executing any writ, rule, order, process, or warrant, aforesaid, such person shall, on conviction, be imprisoned not exceeding twelve months, and fined not exceeding three hundred dollars.' "You will observe, Gentlemen, that this law makes no provision for a case where an officer, or other person duly authorized, is killed by those unlawfully resisting him. That is a case of murder, and is left to be tried and punished under the laws of the State, within whose jurisdiction the offence is committed. Over that offence against the laws of the State of Massachusetts we have here no jurisdiction. It is to be presumed that the duly constituted authorities of the State will, in any such case, do their duty; and if the crime of murder has been committed, will prosecute and punish all who are guilty. "Our duty is limited to administering the laws of the United States; and by one of those laws which I have read to you, to obstruct, resist, or oppose, or beat, or wound any officer of the United States, or other person duly authorized, in serving or executing any legal process whatsoever, is an offence against the laws of the United States, and is one of the subjects concerning which you are bound to inquire. "It is not material that the same act is an offence both against the laws of the United States and of a particular State. Under our system of government the United States and the several States are distinct sovereignties, each having its own system of criminal law, which it administers in its own tribunals; and the criminal laws of a State can in no way affect those of the United States. The offence, therefore, of obstructing legal process of the United States is to be inquired of and treated by you as a misdemeanor, under the Act of Congress which I have quoted, without any regard to the criminal laws of the State, or the nature of the crime under these laws. "This Act of Congress is carefully worded, and its meaning is plain. Nevertheless, there are some terms in it, and some rules of law connected with it, which should be explained for your guidance. And first, as to the process, the execution of which is not to be obstructed. "The language of the Act is very broad. It embraces every legal process whatsoever, whether issued by a court in session, or by a judge, or magistrate, or commissioner acting in the due administration of any law of the United States. You will probably experience no difficulty in understanding and applying this part of the law. "As to what constitutes an obstruction--it was many years ago decided, by Justice Washington, that to support an indictment under this law, it was not necessary to prove the accused used or even threatened active violence. Any obstruction to the free action of the officer, or his lawful assistants, wilfully placed in his or their way, for the purpose of thus obstructing him or them, is sufficient. And it is clear that if a multitude of persons should assemble, even in a public highway, with the design to stand together, and thus prevent the officer from passing freely along the way, in the execution of his precept, and the officer should thus be hindered or obstructed, this would of itself, and without any active violence, be such an obstruction as is contemplated by this law. If to this be added use of any active violence, then the officer is not only obstructed, but he is resisted and opposed, and of course the offence is complete, for either of them is sufficient to constitute it. "If you should be satisfied that an offence against this law has been perpetrated, you will then inquire by whom; and this renders it necessary for me to instruct you concerning the kind and amount of participation which brings individuals within the compass of this law. "And first, all who are present and actually obstruct, resist, or oppose, are of course guilty. So are all who are present leagued in the common design, and so situated as to be able, in case of need, to afford assistance to those actually engaged, though they do not actually obstruct, resist, or oppose. If they are present for the purpose of affording assistance in obstructing, resisting, or opposing the officers, and are so situated as to be able in any event which may occur, actually to aid in the common design, though no overt act is done by them, they are still guilty under this law. The offence defined by this act is a misdemeanor; and it is rule of law that whatever participation, in case of felony, would render a person guilty, either as a principal in the second degree, or as an accessory before the fact, does, in a case of misdemeanor, render him guilty as a principal; in misdemeanors all are principals. And, therefore, in pursuance of the same rule, not only those who are present, but those who, though absent when the offence was committed, did procure, counsel, command, or abet others to commit the offence, are indictable as principal. "Such is the law, and it would seem that no just mind could doubt its propriety. If persons having influence over others use that influence to induce the commission of crime, while they themselves remain at a safe distance, that must be deemed a very imperfect system of law which allows them to escape with impunity. Such is not our law. It treats such advice as criminal, and subjects the giver of it to punishment according to the nature of the offence to which his pernicious counsel has led. If it be a case of felony, he is by the common law an accessory before the fact, and by the laws of the United States and of this State, is punishable to the same extent as the principal felon. If it be a case of misdemeanor, the adviser is himself a principal offender, and is to be indicted and punished as if he himself had done the criminal act. It may be important for you to know what, in point of law, amounts to such an advising or counselling another as will be sufficient to constitute this legal element in the offence. It is laid down by high authority, that though a mere tacit acquiescence, or words, which amount to a bare permission, will not be sufficient, yet such a procurement may be, either by direct means, as by hire, counsel, or command, or indirect, by evincing an express liking, approbation, or assent to another's criminal design. From the nature of the case, the law can prescribe only general rules on this subject. My instruction to you is, that language addressed to persons who immediately afterwards commit an offence, actually intended by the speaker to incite those addressed to commit it, and adapted thus to incite them, is such a counselling or advising to the crime as the law contemplates, and the person so inciting others is liable to be indicted as a principal. "In the case of the _Commonwealth_ v. _Bowen_ (13 Mass. R. 359), which was an indictment for counselling another to commit suicide, tried in 1816, Chief Justice Parker instructing the jury, and speaking for the Supreme Court of Massachusetts, said:-- "'The government is not bound to prove that Jewett would not have hung himself, had Bowen's counsel never reached his ear. The very act of advising to the commission of a crime is of itself unlawful. The presumption of law is that advice has the influence and effect intended by the adviser, unless it is shown to have been otherwise; as that the counsel was received with scoff, or was manifestly rejected and ridiculed at the time it was given. It was said in the argument that Jewett's abandoned and depraved character furnishes ground to believe that he would have committed the act without such advice from Bowen. Without doubt he was a hardened and depraved wretch; but it is in man's nature to revolt at self-destruction. When a person is predetermined upon the commission of this crime, the seasonable admonitions of a discreet and respected friend would probably tend to overthrow his determination. On the other hand, the counsel of an unprincipled wretch, stating the heroism and courage the self-murderer displays, might induce, encourage, and fix the intention, and ultimately procure the perpetration of the dreadful deed; and if other men would be influenced by such advice, the presumption is that Jewett was so influenced. He might have been influenced by many powerful motives to destroy himself. Still the inducements might have been insufficient to procure the actual commission of the act, and one word of additional advice might have turned the scale.' "When applied--as this ruling seems to have been here applied--to a case in which the advice was nearly connected, in point of time, with the criminal act, it is, in my opinion, correct. If the advice was intended by the giver to stir or incite to a crime--if it was of such a nature as to be adapted to have this effect, and the persons incited immediately afterwards committed that crime--it is a just presumption that they were influenced by the advice or incitement to commit it. The circumstances, or direct proof, may or may not be sufficient to control this presumption; and whether they are so, can duly be determined in each case, upon all its evidence. "One other rule of law on this subject is necessary to be borne in mind--the substantive offence to which the advice or incitement applied must have been committed; and it is for that alone the adviser or procurer is legally accountable. Thus if one should counsel another to rescue one prisoner, and he should rescue another, unless by mistake; or if the incitement was to rescue a prisoner, and he commit a larceny, the inciter is not responsible. But it need not appear _that the precise time, or place, or means advised_, were used. Thus if one incite A. to murder B., but advise him to wait until B. shall be at a certain place at noon, and A. murders B. at a different place in the morning, the adviser is guilty. So if the incitement be to poison, and the murderer shoots, or stabs. So if the counsel be to beat another, and he is beaten to death, the adviser is a murderer; for having incited another to commit an unlawful act, he is responsible for all that ensues upon its execution. "These illustrations are drawn from cases of felonies, because they are the most common in the books and the most striking in themselves; but the principles on which they depend are equally applicable to cases of misdemeanor. In all such cases the real question is, whether the accused did procure, counsel, command, or abet the substantive offence committed. If he did, it is of no importance that his advice or directions were departed from in respect to the time, or place, or precise mode or means of committing it. "Gentlemen: The events which have recently occurred in this city, have rendered it my duty to call your attention to these rules of law, and to direct you to inquire whether in point of fact the offence of obstructing process of the United States has been committed; if it has, you will present for trial all such persons as have so participated therein as to be guilty of that offence. And you will allow me to say to you that if you or I were to begin to make discriminations between one law and another, and say this we will enforce and that we will not enforce, we should not only violate our oaths, but so far as in us lies, we should destroy the liberties of our country, which rest for their basis upon the great principle that our country is governed by laws, constitutionally enacted, and not by men. "In one part of our country the extradition of fugitives from labor is odious; in another, if we may judge from some transactions, the law concerning the extradition of fugitives from justice has been deemed not binding; in another still, the tariff laws of the United States were considered oppressive, and not fit to be enforced. "Who can fail to see that the government would cease to be a government if it were to yield obedience to those local opinions? While it stands, all its laws must be faithfully executed, or it becomes the mere tool of the strongest faction of the place and the hour. If forcible resistance to one law be permitted practically to repeal it, the power of the mob would inevitably become one of the constituted authorities of the State, to be used against any law or any man obnoxious to the interests and passions of the worst or most excited part of the community; and the peaceful and the weak would be at the mercy of the violent. "It is the imperative duty of all of us concerned in the administration of the laws to see to it that they are firmly, impartially, and certainly applied to every offence, whether a particular law be by us individually approved or disapproved. And it becomes all to remember, that forcible and concerted resistance to any law is civil war, which can make no progress but through bloodshed, and can have no termination but the destruction of the government of our country, or the ruin of those engaged in such resistance. It is not my province to comment on events which have recently happened. They are matters of fact which, so far as they are connected with the criminal laws of the United States, are for your consideration. I feel no doubt that, as good citizens and lovers of our country, and as conscientious men, you will well and truly observe and keep the oath you have taken, diligently to inquire and true presentment make of all crimes and offences against the laws of the United States given you in charge."[193] [Footnote 193: Law Reporter, August, 1854.] Now gentlemen look at some particulars of this charge. 1. "If a multitude of persons shall assemble _even in a public highway_, with the design to _stand together, and thus prevent the officer from passing freely along that way_, in the execution of his precept, and the officer should thus be _hindered and obstructed_, this would, of itself, and without any active violence, be such an obstruction as is contemplated by this law." Of course, all persons thus assembled in the public highway were guilty of that offence, and liable to be punished with imprisonment for twelve months and a fine of three hundred dollars: "_All who are present_, and obstruct, resist, or oppose, _are of course guilty_." Their "design" is to be inferred from "the fact" that the officer was obstructed. That is not all, this offence in technical language the Judge calls a "misdemeanor," and in "misdemeanors," he says, "all are principals." So, accordingly, not only are all guilty who _actually obstruct_ but likewise all who are "leagued in the common design, and _so situated as to be able_ in case of need _to afford assistance to those actually engaged_, though they do not actually obstruct, resist, or oppose." These are obstructors by construction No. 1; they must have been several thousands in number. But even that is not all; the judicial logic of deduction goes further still, and he adds, "Not only those who are present, but _those who_ though _absent_ when the offence was committed, _did procure, counsel, command, or abet_ others to commit the offence are indictable as principals." These are obstructors by construction No. 2. 2. Next he determines what it is which "amounts to _such advising or counselling_ another as will be sufficient to constitute this legal element in the offence." First he constructs the physical act which is the misdemeanor, namely, standing in the high road and thereby hindering a kidnapper from "passing freely along that way; or being so situated as to be able to afford assistance to others thus standing; or advising another thus to stand, or be situated:" next he constructs the _advice_, the metaphysical act, which is equally a "misdemeanor." This is the square root of construction No. 2. Look at this absurd quantity. "_Such a procurement may be_, either by direct means, as by hire, counsel, or command, or indirect, _by evincing an express liking, approbation, or assent_." Thus the mere casual expression, "I wish Burns would escape, or I wish somebody would let him out," is a "Misdemeanor;" it is "evincing an express liking." Nodding to any other man's similar wish is a misdemeanor. It is "approbation." Even smiling at the nod is a crime--it is "assent." Such is the threefold shadow of this constructive shade. But even that is not all. A man is held responsible for what he evinced no _express_ or implied _liking_ for: "_it need not appear that the precise time, or place, or means advised, were used_." Accordingly, he that "evinces an express liking," "_is responsible for all that ensues upon its execution_." He evinces his assent to the End and is legally responsible for any Means which any hearer thereof shall, at any time, or in any place, make use of to attain that end! Gentlemen of the Jury, this charge is a _quo warranto_ against all Freedom of Speech. But suppose it were good law, and suppose the Grand-Jury obedient to it, see how it would apply. All who evinced an express liking, approbation, or assent to the rescue of Mr. Burns are guilty of a misdemeanor; if they "evinced an express liking" that he should be rescued by a miracle wrought by Almighty God,--and some did express "approbation" of that "means,"--they are indictable, guilty of a "misdemeanor;" "it need not appear that the precise time, or place, or means advised, were used!" If any colored woman during the wicked week--which was ten days long--prayed that God would deliver Anthony, as it is said his angel delivered Peter, or said "Amen" to such a prayer, she was "guilty of a misdemeanor;" to be indicted as a "principal." So every man in Boston who, on that bad Friday, stood in the streets of Boston between Court Square and T Wharf, was "guilty of a misdemeanor," liable to a fine of three hundred dollars, and to jailing for twelve months. All who at Faneuil Hall stirred up the minds of the people in opposition to the fugitive slave bill; all who shouted, who clapped their hands at the words or the countenance of their favorites, or who expressed "approbation" by a whisper of "assent," are "guilty of a misdemeanor." The very women who stood for four days at the street corners, and hissed the infamous Slave-hunters and their coadjutors; they, too, ought to be punished by fine of three hundred dollars and imprisonment for a year! Well, there were fifteen thousand persons "assembled" "in the highway" of the city of Boston that day opposed to kidnapping; half the newspapers in the country towns of Massachusetts "evinced an express liking" for freedom, and opposed the kidnapping; they are all "guilty of a misdemeanor;" they are "Principals." Nay, the ministers all over the State, who preached that kidnapping was a sin; those who read brave words out of the Old Testament or the New; those who prayed that the victim might escape; they, likewise, were "guilty of a misdemeanor," liable to be fined three hundred dollars and jailed for twelve months.[194] [Footnote 194: 2 Parker's Additional, 280.] But where did Judge Curtis find his right to levy Ship-money, Tonnage, and Poundage on the tongues of men; where did he find his "law?" Surely not in the statute. When the bill was pending in 1790, suppose his construction of the statute had been declared to Congress--who would have voted for a law so monstrous? The statute lay in the Law-book for nearly seventy years, and nobody ever applied it to a case like this. Gentlemen, I have shown you already how British judges in the time of the Jameses and Charleses perverted the law to the basest of purposes. I mentioned, amongst others, the work of Twysden and Kelyng and Jones. This is a case like those. Just now I spoke of the action of Chief Justice Parker who said it was not for the jury to judge whether a law _were harsh or not_; I showed how he charged the jury in the case of Bowen, and how the jury returned a verdict of "not guilty," thus setting his inhuman charge at nought.[195] But Judge Curtis, for his law, relies upon Judge Parker's charge. It is not a Statute made by the legislature that Judge Curtis relies on for his law; it is not a Custom of the Common law; it is not an Opinion of the Court solemnly pronounced after mature deliberation; it is only the charge of a single judge to a jury in a special case, and one which the jury disregarded even then! [Footnote 195: See above, p. 112.] But where did Judge Parker, an estimable man, find his law? Mr. Perez Morton, the Attorney-General, found it in Kelyng's Reports. In the case of Bowen only one authority is referred to for that odious principle on which the judge sought to hang him; that authority is taken from "9 Charles I.;" from the year 1634--the worst age of the Stuart tyranny! But even that authority was not a Statute law, not a Custom of the People, not the Opinion of a Court solemnly pronounced. It was the charge of a single judge--a charge to a jury, made by an inferior judge, of an inferior court, in a barbarous age, under a despotic king! Hearken to this,--from the volume of Kelyng's Reports.[196] "_Memorandum_, That my Brother Twysden shewed me a Report which he had of the Charge given by Justice Jones to the grand-jury at the King's Bench Barr, in Michaelmas Term, 9 Carl. I." Gentlemen of the Jury, that charge no more settled the law even in 1634, than Judge Sprague's charge telling the _grand-jury to "obey both"_ the law of God and the law of man which is exactly opposite thereto, settled the law of the United States and the morality of the People. But yet that is all the law the government had to hang Bowen with. The jury made nothing of it.[197] [Footnote 196: Page 52. See above, p. 112.] [Footnote 197: Jones's "opinion" relates to a case of _murder_ by the advice of an absent person, not at all to _suicide by the advice of another_, so it could not apply to the case of Bowen.] But Kelyng's Reports are of no value as authority. Here is what Lord Campbell, now Chief Justice of the King's Bench, says of them and their author. I read it to you long ago. "I ought to mention that among his other vanities he had the ambition to be an author; and he compiled a folio volume of decisions in criminal laws, _which are of no value whatever except to make us laugh at some of the silly egotisms with which they abound_."[198] Twysden, who showed him the Report of the charge, is of little value, and of no authority. I mentioned his character before. [Footnote 198: 2 Campbell's Justices, 406.] Justice Jones, who made the charge, would hardly be an authority in the English courts in a nice question of construction. He allowed the king to levy ship-money, as I have shown before,[199] and dared not perform the duties of his office and so protect the Liberty of the Subject when the king smote thereat. He was brought before the House of Commons to answer for his conduct, in 1628. "His memory," says Echard, "suffers upon the account of his open judgment for the ship-money, the unhappy consequence of which he did not live to see."[200] [Footnote 199: Above, p. 23.] [Footnote 200: Parl. Hist. 290; 3 St. Tr. 844, 1181, 162; 2 Echard, 186.] Judge Kelyng, the great authority in this case, was notorious for violating alike Justice and the law. Out of a riot committed by some apprentices he constructed the crime of High Treason, and sentenced thirteen men to death. He fined and imprisoned jurors because they refused to return the wicked, illegal verdict he demanded. With language too obscene to utter in this century, he mocked at the Great Charter of English Liberty. But at last the scandal was too great even for the reign of Charles II., and in 1667 the "Grand Committee of Justice" in the House of Commons, after examining witnesses and hearing him on his own behalf, reported:-- 1. "That the proceedings of the Lord Chief Justice in the cases referred to us are innovations in the trial of men for their lives and liberties, and that he hath used an arbitrary and illegal power which is of dangerous consequence to the lives and liberties of the people of England." 2. "That in place of Judicature, the Lord Chief Justice hath undervalued, vilified, and condemned MAGNA CHARTA, the great preserver of our lives, freedom, and property." 3. "That the Lord Chief Justice be brought to trial, in order to condign punishment, in such manner as the House shall judge most fit and requisite."[201] [Footnote 201: See above, p. 23, 39, 113, 125; 1 Campbell, _Ibid._ 406; 6 St. Tr. 76, 229, 171, 532, 769, 879, 992; Pepys' Diary, 17 Oct., 1667; Commons Journal, 16th Oct., 1667.] Some of the lawyers whom he had browbeaten, generously interceded for him. He made an abject submission "with great humility and reverence," and the House desisted from prosecution. "He was abundantly tame for the rest of his days," says Lord Campbell, "fell into utter contempt," "and _died to the great relief of all who had any regard for the due administration of justice_." Gentlemen, I am no lawyer, and may easily be mistaken in this matter, but as I studied Judge Curtis's charge and cast about for the sources of its doctrines and phraseology, I thought I traced them all back to Kelyng's opinions in that famous case, where he made treason out of a common riot among apprentices; and to Judge Chase's "opinions" and "rulings" in the trial of Mr. Fries,--opinions and rulings which shocked the public at the time, and brought legislative judgment on his head. Let any one compare the documents, I think he will find the whole of Curtis in those two impeached Judges, in Kelyng and in Chase.[202] [Footnote 202: 1 Wharton, 636; Kelyng, 1-24, 70-77; 6 St. Tr. 879.] Here then is the law,--derived from the memorandum of the charge to a grand-jury made in 1634, by a judge so corrupt that he did not hesitate to violate Magna Charta itself; not published till more than seventy years after the charge was given; cited as law by a single authority, and that authority impeached for unrighteously and corruptly violating the laws he was set and sworn to defend, impeached even in that age--of Charles II.;--that is the law! Once before an attempt was made to apply it in Massachusetts, and inflict capital punishment on a man for advising a condemned murderer to anticipate the hangman and die by his own hand in private--and the jury refused. But to such shifts is this Honorable Court reduced! Gentlemen of the Jury, the fugitive slave bill cannot be executed in Massachusetts, not in America, without reviving the worst despotism of the worst of the Stuarts; not without bringing Twysden and Jones and Kelyng on the Bench; no, not without Saunders and Finch, and Jeffreys and Scroggs! Gentlemen, such was Judge Curtis's charge. I have been told it was what might have been expected from the general character and previous conduct of the man; but I confess it did surprise me: it was foolish as it was wicked and tyrannical. But it all came to nought. For, alas! there was a grand-jury, and the Salmonean thunder of the fugitive slave bill judge fell harmless--quenched, conquered, disgraced, and brutal,--to the ground. Poor fugitive slave bill Court! It can only gnash its teeth against freedom of speech in Faneuil Hall; only bark and yelp against the unalienable rights of man, and howl against the Higher Law of God! it cannot bite! Poor, imbecile, malignant Court! What a pity that the fugitive slave bill judge was not himself the grand-jury, to order the indictment! what a shame that the attorney was not a petty jury to convict! Then New England, like Old, might have had her "bloody assizes," and Boston streets might have streamed with the heart's gore of noble men and women; and human heads might have decked the pinnacles all round the town; and Judge Curtis and Attorney Hallett might have had their place with Judge Jeffreys and John Boilman of old. What a pity that we have a grand-jury and a traverse jury to stand between the malignant arm of the Slave-hunter and the heart of you and me![203] [Footnote 203: 2 Parker's Additional, p. 281.] The grand-jury found no bill and were discharged. In a Fourth of July Sermon "Of the Dangers which Threaten the Rights of Man in America," I said:-- "Perhaps the Court will try again, and find a more pliant Grand-Jury, easier to intimidate. Let me suggest to the Court that the next time it should pack its Jury from the Marshal's 'Guard.' Then there will be Unity of Idea; of action too,--the Court a figure of equilibrium." The audacious Grand-Jury was discharged. A new one was summoned; this time it was constructed out of the right material. Before that, Gentlemen, we had had the Judge or his kinsmen writing for the fugitive slave bill in the newspapers; getting up public meetings in behalf of man-stealing in Boston; writing letters in support of the same; procuring opinions in favor of the constitutionality of the fugitive slave bill; nay, kidnapping men and sending them into eternal bondage, and in the newspapers defending the act; but we had none of them in the Jury box. On the new Grand-Jury appeared Mr. William W. Greenough, the brother-in-law of Hon. Judge Curtis--each married a daughter of Mr. Charles P. Curtis. Mr. Greenough "was very active in his endeavors to procure an indictment" against me; and a bill was found. How came the Brother-in-law of the Judge on the Grand-Jury summoned to punish men who spoke against kidnapping? Gentlemen of the Jury, I do not know. Of course it was done honestly; nobody suspects the Mayor of Boston of double-dealing, of intrigue, or of any indirection! Of course there was no improper influence used by the Marshal, or Mr. Curtis, or Mr. Hallett, who had all so much at stake; of course Mr. Greenough "did not wish to be on the Jury;" of course Judge Curtis "was very sorry he was there," and of course "all the family was sorry!" Of course "he went and asked Judge Sprague to excuse him, and the Judge wouldn't let him off!" Well, Gentlemen, I suppose it was a "miracle;" such a miracle as delivered the old or the new Shadrach; a "singular coincidence;" a "very remarkable fact." You will agree with me, Gentlemen, that it was a _very remarkable_ FACT. In all the judicial tyranny I have related, we have not found a case before in which the judge had his brother on the Grand-Jury. Even Kelyng affords no precedent for that. Last summer I met Mr. Greenough in a Bookstore and saluted him as usual; he made no return to my salutation, but doubled up his face and went out of the shop! That was the impartial Grand-Juror, who took the oath to "present no man for envy, hatred, or malice." "After the impanelling of the new Grand-Jury,"--I am reading from a newspaper,[204] "Judge Curtis charged them in reference to their duties at considerable length. In regard to the Burns case he read the law of 1790 respecting opposition to the United States Marshals and their deputies while in discharge of their duty, enforcing the laws of the United States, and referred for further information as to the law upon the point to his charge delivered at a previous term of the Court, and now in the possession _of the District Attorney_." Thus he delegated the duty of expounding the law to a man who is not a judicial officer of the United States. [Footnote 204: Evening Traveller, Oct. 16.] Gentlemen of the Jury, look at the facts. I am indicted by a Grand-Jury summoned for that purpose after one Grand-Jury--which had been drawn before the kidnapping of Mr. Burns--had refused to find a bill; a member of the family which has been so distinguished for kidnapping ever since 1832, the Brother-in-law of the Judge, is made one of that Grand-Jury; he is so hostile and malignant as to refuse my friendly salutation when offered as usual; and on the jury is "most active of all in his efforts to procure an indictment," so that "but for his efforts," as one of the Grand-Jury informed me, "no bill would have been found that time;" and "it was obvious that an outside influence affected him." Out of court Mr. Hallett, it is said, jocosely offers to bet ten dollars that he "will get Mr. Parker indicted." I am to be tried before two judges deeply committed to the Slave Power, now fiercely invading our once free soil; they owe their appointment to their hostility against Freedom. Twenty years ago, in the Old Cradle of Liberty, Mr. Sprague could find for Washington no epithet so endearing as "THAT SLAVEHOLDER;" he defended Slavery with all his legal learning, all his personal might. Yes, when other weapons failed him he extemporized a new gospel, and into the mouth of Jesus of Nazareth,--who said, "Thou shalt love thy Neighbor as thyself," and pointed out the man who had "fallen among thieves" as neighbor to the Samaritan--he put this most unchristian precept, "SLAVES, OBEY YOUR MASTERS!" Nay, only four years ago, in this very Court, he charged the jury that if they thought there was a contradiction between the Law of God and the Statutes of men they must "obey both." Gentlemen, the other judge, Mr. Curtis, began his career by asking the Supreme Court of Massachusetts to restore Slavery to Lexington and Bunker Hill; he demanded that our own Supreme Court should grant all that wickedness which Toombs and Hangman Foote, and Atchison and Stringfellow, and Grier and Kane have since sought to perpetuate! He denied the existence of any Law of God to control the Court, there is nothing but the Statutes of men; and declared "Slavery is not immoral;" Massachusetts may interfere actively to establish it abroad as well as at home. In Faneuil Hall, in a meeting which he and his kinsmen had gathered and controlled, a meeting to determine upon kidnapping the citizens of Boston, he charged me with perjury, asked a question, and did not dare listen to my reply! Gentlemen, it is a very proper Court to try me. A fugitive slave bill Court--with a fugitive slave bill Attorney, a fugitive slave bill Grand-Jury, two fugitive slave bill Judges--which scoffs at the natural law of the Infinite God, is a very suitable tribunal to try a Minister of the Christian religion for defending his own parishioners from being kidnapped, defending them with a word in Faneuil Hall! "No tyranny so secure,--none so intolerable,--none so dangerous,--none so remediless, as that of Executive Courts." "This is a truth all nations bear witness to--all history confirms." These were the words of Josiah Quincy, Jr., in 1772.--Gentlemen, in 1855 you see how true they are! "So sensible are all tyrants of the importance of such courts--that to advance and establish their system of oppression, _they never rest until they have completely corrupted or bought the judges of the land_. I could easily show that the most deep laid and daring attacks upon the rights of a people might, in some measure, be defeated, or evaded by upright judicatories; bad laws with good judges make little progress."[205] [Footnote 205: Quincy's Quincy, 68.] But Gentlemen,--when the fugitive slave bill is "_law_," when the judges are selected for their love of Slavery and their hatred of freedom--men who invent Scripture to justify bondage, or who as Lawyers beseech the courts to establish Slavery in Massachusetts; who declare it is not immoral, that it may be the duty of Massachusetts to interfere actively and establish slavery abroad, nay, that there is no morality but only legality, the statute the only standard of right and wrong--what are you to expect? What you see in Philadelphia, New York; aye, in Boston at this hour. I will add with Mr. Quincy, "Is it possible this should not rouse us and drive us not to desperation but to our duty! The blind may see; the callous must feel; the spirited will act."[206] [Footnote 206: Gazette, Feb. 10, 1772.] It would be just as easy for the Judge to make out divers other crimes from my words, as to construct a misdemeanor therefrom. To charge me with "treason," he has only to vary a few words and phrases; to cite Chase, and not Judge Parker, and to refer to other passages of Kelyng's Reports. James II.'s judges declared it was treason in the seven Bishops to offer their petition to the King. Mr. Webster said, it is only the "clemency of the Government which indicted the Syracuse rescuers for misdemeanors and not for a capital crime!" How easy for a fugitive slave bill judge to hang men for a word against his brother kidnapper--if there were no jury; if, like the New York sheriff in 1735, he could order "his own negro" to do it! Here is a remarkable case of constructive crime, worthy of this Honorable Court. It is the famous case of _Dux_ v. _Conrade et Boracio_. Honorable Judge Dogberry thus delivered his charge to the Grand Inquest, "Masters, I charge you accuse these men,"--one policeman testified that Conrade said "that Don John, the prince's Brother, was a _villain_." Judge Dogberry ruled, "This is flat perjury to call a prince's Brother, _villain_." The next member of the Marshal's guard deposed that Boracio had said, "That he had received a thousand ducats of Don John for accusing the Lady Hero wrongfully." Chief Justice Dogberry decided, "Flat Burglary as ever was committed." Sentence accordingly.[207] [Footnote 207: 2 Singer's Shakspeare, 192.] * * * * * Gentlemen, the indictment is so roomy and vague, that before I came into court, I did not know what special acts of mine would be brought up against me--for to follow out the Judge's charge, all my life is a series of constructive misdemeanors. Nay, I think my mother--the violet has bloomed over that venerable and well-beloved head for more than thirty summers now--I think my mother might be indicted for constructive treason, only for bearing me, her youngest son. Certainly, it was "obstructing an officer," and in "misdemeanors all are principals." I have committed a great many misdemeanors; all my teachings evince an express liking for Piety, for Justice, for Liberty; all my life is obstructing, opposing, and resisting the fugitive slave bill Court, its Commissioners, its Judges, its Marshals and its Marshal's guard. Gentlemen of the jury, you are to judge me. Look at some of my actions and some of my words. In 1850, on the 25th of March, a fortnight after Mr. Webster made his speech against Humanity, there was a meeting of the citizens of Boston, at Faneuil Hall; Gentlemen, I helped procure the meeting. First, I tried to induce the leading Whigs to assemble the people. No, that could not be done; "the Bill would not pass, there was no danger!" Then I tried the leading Free Soilers; "No, it was not quite time, and we are not strong enough." At last the old abolitionists came together. Mr. Phillips made a magnificent speech. Here are some things which I also said. "There were three fugitives at my house the other night. Ellen Craft was one of them. You all know Ellen Craft is a slave; she, with her husband, fled from Georgia to Philadelphia, and is here before us now. She is not so dark as Mr. Webster himself, if any of you think freedom is to be dealt out in proportion to the whiteness of the skin. If Mason's bill passes, I might have some miserable postmaster from Texas or the District of Columbia, some purchased agent of Messrs. Bruin & Hill, the great slave-dealers of the Capital, have him here in Boston, take Ellen Craft before the caitiff, and on his decision hurry her off to bondage as cheerless, as hopeless, and as irremediable as the grave! "Let me interest you in a scene which might happen. Suppose a poor fugitive, wrongfully held as a slave--let it be Ellen Craft--has escaped from Savannah in some northern ship. No one knows of her presence on board; she has lain with the cargo in the hold of the vessel. Harder things have happened. Men have journeyed hundreds of miles bent double in a box half the size of a coffin, journeying towards freedom. Suppose the ship comes up to Long Wharf, at the foot of State Street. Bulk is broken to remove the cargo; the woman escapes, emaciated with hunger, feeble from long confinement in a ship's hold, sick with the tossing of the heedless sea, and still further etiolated and blanched with the mingling emotions of hope and fear. She escapes to land. But her pursuer, more remorseless than the sea, has been here beforehand; laid his case before the official he has brought with him, or purchased here, and claims his slave. She runs for her life, fear adding wings. Imagine the scene--the flight, the hot pursuit through State Street, Merchants' Row--your magistrates in hot pursuit. To make the irony of nature still more complete, let us suppose this shall take place on some of the memorable days in the history of America--on the 19th of April, when our fathers first laid down their lives 'in the sacred cause of God and their country;' on the 17th of June, the 22d of December, or on any of the sacramental days in the long sad history of our struggle for our own freedom! Suppose the weary fugitive takes refuge in Faneuil Hall, and here, in the old Cradle of Liberty, in the midst of its associations, under the eye of Samuel Adams, the bloodhounds seize their prey! Imagine Mr. Webster and Mr. Winthrop looking on, cheering the slave-hunter, intercepting the fugitive fleeing for her life. Would not that be a pretty spectacle? "Propose to support that bill to the fullest extent, with all its provisions! Ridiculous talk! Does Mr. Webster suppose that such a law could be executed in Boston? that the people of Massachusetts will ever return a single fugitive slave, under such an act as that? Then he knows his constituents very little, and proves that he needs 'Instruction.' "Perpetuate Slavery, we cannot do it. Nothing will save it. It is girt about by a ring of fire which daily grows narrower, and sends terrible sparkles into the very centre of the shameful thing. 'Joint resolutions' cannot save it; annexations cannot save it--not if we reannex all the West Indies; delinquent representatives cannot save it; uninstructed senators, refusing instructions, cannot save it, no, not with all their logic, all their eloquence, which smites as an earthquake smites the sea. No, slavery cannot be saved; by no compromise, no non-intervention, no Mason's Bill in the Senate. It cannot be saved in this age of the world until you nullify every ordinance of nature, until you repeal the will of God, and dissolve the union He has made between righteousness and the welfare of a people. Then, when you displace God from the throne of the world, and instead of His eternal justice, reënact the will of the Devil, then you may keep Slavery; keep it for ever, keep it in peace. Not till then. "The question is, not if slavery is to cease, and soon to cease, but shall it end as it ended in Massachusetts, in New Hampshire, in Pennsylvania, in New York; or shall it end as in St. Domingo? Follow the counsel of Mr. Webster--it will end in fire and blood. God forgive us for our cowardice, if we let it come to this, that three millions or thirty millions of degraded human beings, degraded by us, must wade through slaughter to their unalienable rights."[208] [Footnote 208: 2 Occasional Speeches, 164, 165, and 172.] Gentlemen, that speech was a "seditious libel" by construction! On the 29th of May, I spoke at the New England Anti-Slavery Convention, and said:-- "Let us not be deceived about the real question at issue. It is not merely whether we shall return fugitive slaves without trial by jury. We will not return them with trial by jury! neither 'with alacrity,' nor with the 'solemnity of judicial proceedings!' It is not merely whether slavery shall be extended or not. By and by there will be a political party with a wider basis than the free soil party, who will declare that the nation itself must put an end to slavery in the nation; and if the Constitution of the United States will not allow it, there is another Constitution that will. Then the title, Defender and expounder of the Constitution of the United States, will give way to this,--'Defender and expounder of the Constitution of the Universe,' and we shall reaffirm the ordinance of nature, and reënact the will of God. You may not live to see it, Mr. President, nor I live to see it; but it is written on the iron leaf that it must come; come, too, before long. Then the speech of Mr. Webster, and the defence thereof by Mr. Stuart, the letter of the retainers and the letters of the retained, will be a curiosity; the conduct of the whigs and democrats an amazement, and the peculiar institution a proverb amongst all the nations of the earth. In the turmoil of party politics, and of personal controversy, let us not forget continually to move the previous question, whether Freedom or Slavery is to prevail in America. There is no attribute of God which is not on our side; because, in this matter, we are on the side of God."[209] [Footnote 209: Ibid., 207, 208.] After the death of General Taylor on the 14th of July, I lifted up my voice in a funeral sermon thus:-- "If he could speak to us from his present position, methinks he would say: Countrymen and friends! You see how little it availed you to agitate the land and put a little man in a great place. It is not the hurrah of parties that will 'save the Union,' it is not 'great men.' It is only Justice. Remember that Atheism is not the first principle of a Republic; remember there is a law of God, the higher law of the universe, the Everlasting Right: I thought so once, and now I know it. Remember that you are accountable to God for all things; that you owe justice to all men, the black not less than the white; that God will demand it of you, proud, wicked nation, careful only of your gold, forgetful of God's high law! Before long each of you shall also come up before the Eternal. Then and there it will not avail you to have compromised truth, justice, love, but to have kept them. Righteousness only is the salvation of a State; that only of a man."[210] [Footnote 210: 2 Occasional Sermons, 239, 240.] All that was before the bill passed, but how easy it would be for Judge Jeffreys or Judge Curtis, Judge Sprague or Judge Scroggs, to construct it into a "misdemeanor," "resisting an officer!" After the fugitive slave bill passed, on the 22d of September, 1850, not forty-eight hours after the Judge's friends had fired their jubilant cannon at the prospect of kidnapping the men who wait upon their tables, I preached a "Sermon of the Function and Place of Conscience in relation to the Laws of Man, a sermon for the times." I said this:-- "If a man falls into the water and is in danger of drowning, it is the natural duty of the bystanders to aid in pulling him out, even at the risk of wetting their garments. We should think a man a coward who could swim, and would not save a drowning girl for fear of spoiling his coat. He would be indictable at common law. If a troop of wolves or tigers were about to seize a man, and devour him, and you and I could help him, it would be our duty to do so, even to peril our own limbs and life for that purpose. If a man undertakes to murder or steal a man, it is the duty of the bystanders to help their brother, who is in peril, against wrong from the two-legged man, as much as against the four-legged beast. But suppose the invader who seizes the man is an officer of the United States, has a commission in his pocket, a warrant for his deed in his hand, and seizes as a slave a man who has done nothing to alienate his natural rights--does that give him any more natural right to enslave a man than he had before? Can any piece of parchment make right wrong, and wrong right? "The fugitive has been a slave before: does the wrong you committed yesterday, give you a natural right to commit wrong afresh and continually? Because you enslaved this man's father, have you a natural right to enslave his child? The same right you would have to murder a man because you butchered his father first. The right to murder is as much transmissible by inheritance as the right to enslave! It is plain to me that it is the natural duty of citizens to rescue every fugitive slave from the hands of the marshal who essays to return him to bondage; to do it peaceably if they can, forcibly if they must, but by all means to do it. Will you stand by and see your countrymen, your fellow-citizens of Boston, sent off to slavery by some commissioner? Shall I see my own parishioners taken from under my eyes and carried back to bondage, by a man whose constitutional business it is to work wickedness by statute? Shall I never lift an arm to protect him? When I consent to that, you may call me a hireling shepherd, an infidel, a wolf in sheep's clothing, even a defender of slave-catching if you will; and I will confess I was a poor dumb dog, barking always at the moon, but silent as the moon when the murderer comes near. "I am not a man who loves violence. I respect the sacredness of human life. But this I say, solemnly, that I will do all in my power to rescue any fugitive slave from the hands of any officer who attempts to return him to bondage. I will resist him as gently as I know how, but with such strength as I can command; I will ring the bells, and alarm the town; I will serve as head, as foot, or as hand to any body of serious and earnest men, who will go with me, with no weapons but their hands, in this work. I will do it as readily as I would lift a man out of the water, or pluck him from the teeth of a wolf, or snatch him from the hands of a murderer. What is a fine of a thousand dollars, and jailing for six months, to the liberty of a man? My money perish with me, if it stand between me and the eternal law of God. I trust there are manly men enough in this house to secure the freedom of every fugitive slave in Boston, without breaking a limb or rending a garment. "One thing more I think is very plain, that the fugitive has the same natural right to defend himself against the slave-catcher, or his constitutional tool, that he has against a murderer or a wolf. The man who attacks me to reduce me to slavery, in that moment of attack alienates his right to life, and if I were the fugitive, and could escape in no other way, I would kill him with as little compunction as I would drive a mosquito from my face. It is high time this was said. What grasshoppers we are before the statute of men! what Goliaths against the law of God! What capitalist heeds your statute of usury when he can get illegal interest? How many banks are content with _six per cent._ when money is scarce? Did you never hear of a merchant evading the duties of the custom-house? When a man's liberty is concerned, we must keep the law, must we? betray the wanderer, and expose the outcast?"[211] [Footnote 211: 2 Occasional Sermons, 256, 257, 258.] Gentlemen, you know what Mr. Commissioner Hallett said of such language, said at the Union Meeting in Faneuil Hall.[212] He was only fugitive slave bill commissioner then; in consequence of his denial of the Higher Law of God he is now fugitive slave bill Attorney. You know what Mr. Curtis said of the Sermon; now, in consequence he is Judge Curtis--the fugitive slave bill Judge. [Footnote 212: See above, p. 149.] On the 14th of October there was another meeting at Faneuil Hall--the Freesoilers came that time. The old flame of Liberty burnt anew in Charles Francis Adams, who presided. Perhaps some of you remember the prayer of the venerable Dr. Lowell which lifted up our souls to the "Father of all men!" I proposed the appointment of a "Committee of Vigilance and Safety to take such measures as they shall deem just and expedient to protect the colored people of this city in the enjoyment of their lives and liberties." I was appointed one of the Committee, and subsequently Chairman of the Executive Committee of the Vigilance Committee; a very responsible office, Gentlemen. At that meeting I told of a fugitive from Boston, who that day had telegraphed to his wife here, asking if it was safe for him to come back from Canada. I asked the meeting, "Will you let him come back; how many will defend him to the worst?" "Here a hand vote was taken," said the newspapers, "a forest of hands was held up." Surely that was "evincing an express liking" for an obstruction of the kidnappers. But did it violate the law of 1790? All this you might easily have known before. Here is something you did not know. That Meeting, its Resolutions, its Speeches, its Action, were brought up in the cabinet of the United States and discussed. _Mr. Webster_, then Secretary of State, _wished to have Mr. Adams, president of the meeting, presented to the grand-jury and indicted for treason_! But the majority thought otherwise. Gentlemen, when the kidnappers came to Boston I did some things of which this court has not taken notice, and so I will not speak of them now, but only tell your grandchildren of, if I live long enough. Others did more and better than I could do, however. In due time they will have their reward. One thing let me say now. When the two brothers Curtis, with their kinsfolk and coadjutors, were seeking to kidnap the Crafts, I took Ellen to my own house, and kept her there so long as the (Southern) kidnappers remained in the city. For the first time I armed myself, and put my house in a state of defence. For two weeks I wrote my sermons with a sword in the open drawer under my inkstand, and a pistol in the flap of the desk, loaded, ready, with a cap on the nipple. Commissioner Curtis said "a process was in the hands of the marshal ..." in the execution of which, he _might be called upon to break open dwelling-houses, and perhaps to take life_, by quelling resistance actual or "_threatened_." I was ready for him. I knew my rights. I went also and looked after William Craft. I inspected his weapons; "his powder had a good kernel, and he kept it dry; his pistols were of excellent proof; the barrels true, and clean, the trigger went easy, the caps would not hang fire at the snap. I tested his poignard; the blade had a good temper, stiff enough and yet springy withal; the point was sharp."[213] After the immediate danger was over and Knight and Hughes had avoided the city, where they had received such welcome from the friends of this Court, such was the tone of the political newspapers and the commercial pulpit that William and Ellen must needs flee from America. Long made one by the wedlock of mutual and plighted faith, their marriage in Georgia was yet "null and void" by the laws of that "Christian State." I married them according to the law of Massachusetts. As a symbol of the husband's peculiar responsibility under such circumstances, I gave William a Sword--it lay on the table in the house of another fugitive, where the wedding took place--and told him of his manly duty therewith, if need were, to defend the life and liberty of Ellen. I gave them both a Bible, which I had bought for the purpose, to be a symbol of their spiritual culture and a help for their soul, as the sword was for their bodily life. "With this sword I thee wed," suited the circumstances of that bridal. [Footnote 213: 1 Parker's Additional Speeches, 55.] Mr. and Mrs. Craft were parishioners of mine, and besides I have been appointed "minister at large in behalf of all fugitive slaves in Boston." I have helped join men and women in wedlock according to the customs of various sects and nations. There is one wedlock, a sacrament, but many forms. Never before did I marry two lovers with the Sword and the Bible--the form of matrimony for fugitive slaves: out of that fact perhaps Mr. Attorney can frame an indictment that will hold water. "If it only resists law and obstructs its officers," quoth he, "it is treason, and he who risks it must risk hanging for it!" At the great Union meeting, November 26, when Mr. Curtis said "I should like to ask the Reverend Gentleman in what capacity he expects to be punished for his _perjury_," I said, "Do you want an answer to your question, Sir?" No doubt that was obstructing a (prospective) "officer," then preparing for process. How easily could Scroggs make a "misdemeanor," or "a seditious libel," out of that question! Allybone would call it "treason," "levying war." Thirty-six hours after the Union meeting, on Thanksgiving day, 28th November, 1850, in a "Sermon of the State of the Nation," I said:-- "I have sometimes been amazed at the talk of men who call on us to keep the fugitive slave law, one of the most odious laws in a world of odious laws--a law not fit to be made or kept. I have been amazed that they should dare to tell us the law of God, writ on the heavens and our hearts, never demanded we should disobey the laws of men! Well, suppose it were so. Then it was old Daniel's duty at Darius' command to give up his prayer; but he prayed three times a day, with his windows up. Then it was John's and Peter's duty to forbear to preach of Christianity; but they said, 'Whether it be right in the sight of God to hearken unto you more than unto God, judge ye.' Then it was the duty of Amram and Jochebed to take up their new-born Moses and cast him into the Nile, for the law of king Pharaoh, commanding it, was 'constitutional,' and 'political agitation' was discountenanced as much in Goshen as in Boston. But Daniel did not obey; John and Peter did not fail to preach Christianity; and Amram and Jochebed refused 'passive obedience' to the king's decree! I think it will take a strong man all this winter to reverse the judgment which the world has passed on these three cases. But it is 'innocent' to try. "However, there is another ancient case, mentioned in the Bible, in which the laws commanded one thing and conscience just the opposite. Here the record of the law:--'Now both the chief priests and the Pharisees had given a commandment, that if any one knew where he [Jesus] were, he should show it, that they might take him.' Of course, it became the official and legal business of each disciple who knew where Christ was, to make it known to the authorities. No doubt James and John could leave all and follow him, with others of the people who knew not the law of Moses, and were accursed; nay, the women, Martha and Mary, could minister unto him of their substance, could wash his feet with their tears, and wipe them with the hairs of their head. They did it gladly, of their own free will, and took pleasure therein, I make no doubt. There was no merit in that--'Any man can perform an agreeable duty.' But there was found one disciple who could 'perform a disagreeable duty.' He went, perhaps 'with alacrity,' and betrayed his Saviour to the marshal of the district of Jerusalem, who was called a centurion. Had he no affection for Jesus? No doubt; but he could conquer his prejudices, while Mary and John could not. "Judas Iscariot has rather a bad name in the Christian world: he is called 'The son of perdition,' in the New Testament, and his conduct is reckoned a 'transgression;' nay, it is said the devil 'entered into him,' to cause this hideous sin. But all this it seems was a mistake; certainly, if we are to believe our 'republican' lawyers and statesmen, Iscariot only fulfilled his 'constitutional obligations.' It was only 'on that point,' of betraying his Saviour, that the constitutional law required him to have any thing to do with Jesus. He took his 'thirty pieces of silver'--about fifteen dollars; a Yankee is to do it for ten, having fewer prejudices to conquer--it was his legal fee, for value received. True, the Christians thought it was 'The wages of iniquity,' and even the Pharisees--who commonly made the commandment of God of none effect by their traditions--dared not defile the temple with this 'price of blood;' but it was honest money. Yes, it was as honest a fee as any American commissioner or deputy will ever get for a similar service. How mistaken we are! Judas Iscariot is not a traitor! he was a great patriot; he conquered his 'prejudices,' performed 'a disagreeable duty,' as an office of 'high morals and high principle;' he kept the 'law' and the 'Constitution,' and did all he could to 'save the Union;' nay, he was a saint, 'not a whit behind the very chiefest apostles.' 'The law of God never commands us to disobey the law of man.' _Sancte Iscariote ora pro nobis._ "Talk of keeping the fugitive slave law! Come, come, we know better. Men in New England know better than this. We know that we ought not to keep a wicked law, and that it must not be kept when the law of God forbids! "One of the most awful spectacles I ever saw, was this: A vast multitude attempting, at an orator's suggestion [Hon. Mr. Hallett], to howl down the 'Higher law,' and when he said, Will you have this to rule over you? they answered, 'Never!' and treated the 'Higher law' to a laugh and a howl! It was done in Faneuil Hall; under the eyes of the three Adamses, Hancock, and Washington; and the howl rung round the venerable arches of that hall! I could not but ask, 'Why do the heathen rage, and the people imagine a vain thing? the rulers of the earth set themselves, and kings take counsel against the Lord and say, Let us break his bands asunder, and cast off his yoke from us.' Then I could not but remember that it was written, 'He that sitteth in the heavens shall laugh; the Lord shall have them in derision.' 'He taketh up the isles as a very little thing, and the inhabitants of the earth are as grasshoppers before Him.' Howl down the law of God at a magistrate's command! Do this in Boston! Let us remember this--but with charity." "I do not believe there is more than one of the New England men who publicly helped the law into being, but would violate its provisions; conceal a fugitive; share his loaf with a runaway; furnish him golden wings to fly with. Nay, I think it would be difficult to find a magistrate in New England, willing to take the public odium of doing the official duty. I believe it is not possible to find a regular jury, who will punish a man for harboring a slave, for helping his escape, or fine a marshal or commissioner for being a little slow to catch a slave. Men will talk loud in public meetings, but they have some conscience after all, at home. And though they howl down the 'Higher law' in a crowd, yet conscience will make cowards of them all, when they come to lay hands on a Christian man, more innocent than they, and send him into slavery for ever! One of the commissioners of Boston talked loud and long, last Tuesday, in favor of keeping the law. When he read his litany against the law of God, and asked if men would keep the 'Higher law,' and got 'Never' as the welcome, and amen for response--it seemed as if the law might be kept, at least by that commissioner, and such as gave the responses to his creed. But slave-hunting Mr. Hughes, who came here for two of our fellow-worshippers, in his Georgia newspaper, tells a different story. Here it is from the 'Georgia Telegraph,' of last Friday. 'I called at eleven o'clock at night, at his [the commissioner's] residence, and stated to him my business, and asked him for a warrant, saying that if I could get a warrant, I could have the negroes [William and Ellen Craft] arrested. He said the law did not authorize a warrant to be issued: that it was my duty to go and arrest the negro without a warrant, and bring him before him!' This is more than I expected. 'Is Saul among the prophets?' The men who tell us that the law must be kept, God willing, or against His will--there are Puritan fathers behind them also; Bibles in their houses; a Christ crucified, whom they think of; and a God even in their world, who slumbers not, neither is weary, and is as little a respecter of parchments as of persons! They know there is a people, as well as politicians, a posterity not yet assembled, and they would not like to have certain words writ on their tomb-stone. 'Traitor to the rights of mankind,' is no pleasant epitaph. They, too, remember there is a day after to-day; aye, a forever; and 'Inasmuch as ye have not done it unto one of the least of these my brethren, ye have not done it unto me,' is a sentence they would not like to hear at the day of judgment."[214] [Footnote 214: 2 Parker's Occasional Sermons, pp. 298-300, 301, 302, 304, 305.] Gentlemen, you see by the faces of this Honorable Court, and you know by what these honorable functionaries and their coadjutors have done out of its limit, how much I was mistaken in the notion that no Boston Commissioner would ever kidnap a man! Perhaps you will pardon me for the mistake. I will soon explain it by a quotation. After the rescue of Shadrach, in my Sunday prayer I publicly gave God the thanks of the congregation for the noble deed. Perhaps that was a crime. I think Judge Saunders could make it appear that I was an "accessory after the fact," and then Judge Curtis could call the offence not a felony but a "misdemeanor," and "in misdemeanors all are principals." Nay, it might be "levying war" "with force and arms." After the Hon. Judge Sprague had made himself glorious by charging the jury "to obey both" the will of God and the laws of men, which forbid that will; and after Commissioner Curtis had kidnapped Mr. Sims, while he still had him in his unlawful jail, on Fast-day, April 10, 1851, I preached a sermon "of the Chief Sins of the People," and said,-- "He [Judge Sprague] supposes a case: that the people ask him, 'Which shall we obey, the law of man or the will of God?' He says, 'I answer, obey both. The incompatibility which the question assumes does not exist.' "So, then, here is a great general rule, that between the 'law of man' and the 'will of God' there is no incompatibility, and we must 'obey both.' Now let us see how this rule will work. "If I am rightly informed, King Ahab made a law that all the Hebrews should serve Baal, and it was the will of God that they should serve the Lord. According to this rule of the judge, they must 'obey both.' But if they served Baal, they could not serve the Lord. In such a case, 'what is to be done?' We are told that Elijah gathered the prophets together: 'and he came unto all the people, and said, How long halt ye? If the Lord be God, follow him; but if Baal, then follow him.' Our modern prophet says, 'Obey both. The incompatibility which the question assumes does not exist.' Such is the difference between Judge Elijah and Judge Peleg. "Let us see how this rule will work in other cases; how you can make a compromise between two opposite doctrines. The king of Egypt commanded the Hebrew nurses, 'When you do the office of a midwife to the Hebrew women, if it be a son ye shall kill him.' I suppose it is plain to the Judge of the Circuit Court that this kind of murder, killing the new-born infants, is against 'the will of God;' but it is a matter of record that it was according to 'the law of man.' Suppose the Hebrew nurses had come to ask Judge Sprague for his advice. He must have said, 'Obey both!' His rule is a universal one. "Another decree was once made, as it is said in the Old Testament, that no man should ask any petition of any God for thirty days, save of the king, on penalty of being cast into the den of lions. Suppose Daniel--I mean the old Daniel, the prophet--should have asked him, What is to be done? Should he pray to Darius or pray to God? 'Obey both!' would be the answer. But he cannot, for he is forbid to pray to God. We know what Daniel did do. "The elders and scribes of Jerusalem commanded the Christians not to speak or to teach at all in the name of Jesus; but Peter and John asked those functionaries, 'Whether it be right in the sight of God to hearken unto you more than unto God, judge ye.' Our judge must have said, There is no 'incompatibility;' 'obey both!' What 'a comfortable Scripture' this would have been to poor John Bunyan! What a great ethical doctrine to St. Paul! He did not know such Christianity as that. Before his time a certain man had said, 'No man can serve two masters.' But there was one person who made the attempt, and he also is eminent in history. Here was 'the will of God,' to do to others as you would have others do to you: 'Love thy neighbor as thyself.' Here is the record of 'the law of man:' 'Now both the chief priests and the Pharisees had given a commandment, that, if any man knew where he [Jesus] were, he should show it that they might take him.' Judas, it seems, determined to 'obey both,'--'the law of man' and 'the will of God.' So he sat with Jesus at the Last Supper, dipped his hand in the same dish, and took a morsel from the hand of Christ, given him in token of love. All this he did to obey 'the will of God.' Then he went and informed the Commissioner or Marshal where Jesus was. This he did to obey 'the law of man.' Then he came back, and found Christ,--the agony all over, the bloody sweat wiped off from his brow presently to bleed again,--the Angel of Strength there with him to comfort him. He was arousing his sleeping disciples for the last time, and was telling them, 'Pray, lest ye enter into temptation.' Judas came and gave him a kiss. To the eleven it seemed the friendly kiss, obeying 'the will of God.' To the Marshal it also seemed a friendly kiss,--obeying 'the law of man.' So, in the same act, he obeys 'the law of God' and 'the will of man,' and there is no 'incompatibility!' "Of old it was said, 'Thou canst not serve God and mammon.' He that said it, has been thought to know something of morals,--something of religion. "Till the fugitive slave law was passed, we did not know what a great saint Iscariot was. I think there ought to be a chapel for him, and a day set apart in the calendar. Let him have his chapel in the navy yard at Washington. He has got a priest there already. And for a day in the calendar--set apart for all time the seventh of March!" "Last Thanksgiving day, I said it would be difficult to find a magistrate in Boston to take the odium of sending a fugitive back to slavery. I believed, after all, men had some conscience, although they talked about its being a duty to deliver up a man to bondage. Pardon me, my country, that I rated you too high! Pardon me, town of Boston, that I thought your citizens all men! Pardon me, lawyers, that I thought you had been all born of mothers! Pardon me, ruffians, who kill for hire! I thought you had some animal mercy left, even in your bosom! Pardon me, United States' commissioners, marshals, and the like, I thought you all had some shame! Pardon me, my hearers, for such mistakes. One commissioner was found to furnish the warrant [Mr. George T. Curtis]! Pardon me, I did not know he was a commissioner; if I had, I never would have said it! "Spirits of tyrants, I look down to you! Shade of Cain, you great first murderer, forgive me that I forgot your power, and did not remember that you were parent of so long a line! And you, my brethren, if hereafter I tell you that there is any limit of meanness or wickedness which a Yankee will not jump over, distrust me, and remind me of this day, and I will take it back! "Let us look at the public conduct of any commissioner who will send an innocent man from Boston into slavery. I would speak of all men charitably; for I know how easy it is to err, yea, to sin. I can look charitably on thieves, prowling about in darkness; on rum-sellers, whom poverty compels to crime; on harlots, who do the deed of shame that holy woman's soul abhors and revolts at; I can pity the pirate, who scours the seas doing his fiendish crimes--he is tempted, made desperate by a gradual training in wickedness. The man, born at the South, owning slaves, who goes to Africa and sells adulterated rum in exchange for men to retail at Cuba,--I cannot understand the consciousness of such a man; yet I can admit that by birth and by breeding he has become so imbruted he knows no better. Nay, even that he may perhaps justify his conduct to himself. I say I think his sin is not so dreadful as that of a commissioner in Boston who sends a man into slavery. A man commits a murder, inflamed by jealousy, goaded by desire of great gain, excited by fear, stung by malice, or poisoned by revenge, and it is a horrid thing. But to send a man into slavery is worse than to murder him. I should rather be slain than enslaved. To do this, inflamed by no jealousy, goaded by no desire of great gain,--only ten dollars!--excited by no fear, stung by no special malice, poisoned by no revenge,--I cannot comprehend that in any man, not even in a hyena. Beasts that raven for blood do not kill for killing's sake, but to feed their flesh. Forgive me, O ye wolves and hyenas! that I bring you into such company. I can only understand it in a devil! "When a man bred in Massachusetts, whose Constitution declares that 'All men are born free and equal;' within sight of Faneuil Hall, with all its sacred memories; within two hours of Plymouth Rock; within a single hour of Concord and Lexington; in sight of Bunker Hill,--when he will do such a deed, it seems to me that there is no life of crime long enough to prepare a man for such a pitch of depravity; I should think he must have been begotten in sin, and conceived in iniquity, and been born 'with a dog's head on his shoulders;' that the concentration of the villany of whole generations of scoundrels would hardly be enough to fit a man for a deed like this!" "Last Thursday night,--when odious beasts of prey, that dare not face the light of heaven, prowl through the woods,--those ruffians of the law seized on their brother man. They lie to the bystanders, and seize him on a false pretence. There is their victim--they hold him fast. His faithless knife breaks in his hand; his coat is rent to pieces. He is the slave of Boston. Can you understand his feelings? Let us pass by that. His 'trial!' Shall I speak of that? He has been five days on trial for more than life, and has not seen a judge! A jury? No,--only a commissioner! O justice! O republican America! Is this the liberty of Massachusetts? "Where shall I find a parallel with men who will do such a deed,--do it in Boston? I will open the tombs, and bring up most hideous tyrants from the dead. Come, brood of monsters, let me bring you up from the deep damnation of the graves wherein your hated memories continue for all time their never-ending rot. Come, birds of evil omen! come, ravens, vultures, carrion-crows, and see the spectacle! come, see the meeting of congenial souls! I will disturb, disquiet, and bring up the greatest monsters of the human race! Tremble not, women; tremble not, children; tremble not, men! They are all dead! They cannot harm you now! Fear the living, not the dead! "Come hither, Herod the wicked! Thou that didst seek after that young child's life, and destroyed the Innocents! Let me look on thy face! No; go! Thou wert a heathen! Go, lie with the Innocents thou hast massacred. Thou art too good for this company! "Come, Nero! Thou awful Roman Emperor! Come up! No; thou wast drunk with power! schooled in Roman depravity. Thou hadst, besides, the example of thy fancied gods! Go, wait another day. I will seek a worser man. "Come hither, St. Dominic! come, Torquemada!--Fathers of the Inquisition! Merciless monsters, seek your equal here! No; pass by! You are no companions for such men as these! You were the servants of atheistic popes, of cruel kings. Go to, and get you gone. Another time I may have work for you,--not now; lie there and persevere to rot. You are not yet quite wicked and corrupt enough for this comparison. Go, get ye gone, lest the sun turn back at sight of ye! "Come up, thou heap of wickedness, George Jeffreys!--thy hands deep purple with the blood of thy murdered fellow men! Ah, I know thee! awful and accursed shade! Two hundred years after thy death, men hate thee still, not without cause! Let me look upon thee! I know thy history. Pause and be still, while I tell it to these men. "Brothers, George Jeffreys 'began in the sedition line.' 'There was no act, however bad, that he would not resort to to get on.' 'He was of a bold aspect, and cared not for the countenance of any man.' 'He became the avowed, unblushing slave of the court, and the bitter persecutor and unappeasable enemy of the principles he had before supported.' 'He was universally insolent and overbearing.' 'As a judge, he did not consider the decencies of his post, nor did he so much as affect to be impartial, as became a judge.' His face and voice were always unamiable. 'All tenderness for the feelings of others, all self-respect were obliterated from his mind.' He had 'a delight in misery, merely as misery,' and 'that temper which tyrants require in their worst instruments.' 'He made haste to sell his forehead of brass and his tongue of venom to the court.' He had 'more impudence than ten carted street-walkers;' and was appropriately set to a work 'which could be trusted to no man who reverenced law, or who was sensible of shame.' He was a 'Commissioner' in 1685. You know of the 'Bloody assizes' which he held, and how he sent to execution three hundred and twenty persons in a single circuit. 'The whole country was strewed with the heads and limbs of his victims.' Yet a man wrote that 'A little more hemp might have been usefully employed.' He was the worst of the English judges. 'There was no measure, however illegal, to the execution of which he did not devotedly and recklessly abandon himself.' 'During the Stuart reigns, England was cursed by a succession of ruffians in ermine, who, for the sake of court favor, wrested the principles of law, the precepts of religion, and the duties of humanity; but they were all greatly outstripped by Jeffreys.' Such is his history. "Come, shade of a judicial butcher! Two hundred years thy name has been pilloried in face of the world, and thy memory gibbeted before mankind. Let us see how thou wilt compare with those who kidnap men in Boston! Go seek companionship with them! Go claim thy kindred, if such they be! Go tell them that the memory of the wicked shall rot,--that there is a God; an Eternity; ay! and a Judgment too! where the slave may appeal against him that made him a slave, to Him that made him a man. "What! Dost thou shudder? Thou turn back! These not thy kindred! Why dost thou turn pale, as when the crowd clutched at thy life in London Street? It is true, George Jeffreys, and these are not thy kin. Forgive me that I should send thee on such an errand, or bid thee seek companionship with such--with Boston hunters of the slave! Thou wert not base enough! It was a great bribe that tempted thee! Again I say, pardon me for sending thee to keep company with such men! Thou only struckst at men accused of crime; not at men accused only of their birth! Thou wouldst not send a man into bondage for two pounds! I will not rank thee with men who, in Boston, for ten dollars, would enslave a negro now! Rest still, Herod! Be quiet, Nero! Sleep, St. Dominic, and sleep, O Torquemada! in your fiery jail! Sleep, Jeffreys, underneath 'the altar of the church' which seeks with Christian charity to hide your hated bones." "Well, my brethren, these are only the beginning of sorrows. There will be other victims yet; this will not settle the question. What shall we do? I think I am a calm man and a cool man, and I have a word or two to say as to what we shall do. Never obey the law. Keep the law of God. Next I say, resist not evil with evil; resist not now with violence. Why do I say this? Will you tell me that I am a coward? Perhaps I am; at least I am not afraid to be called one. Why do I say, then, do not now resist with violence? Because it is not time just yet; it would not succeed. If I had the eloquence that I sometimes dream of, which goes into a crowd of men, and gathers them in its mighty arm, and sways them as the pendent boughs of yonder elm shall be shaken by the summer breeze next June, I would not give that counsel. I would call on men, and lift up my voice like a trumpet through the whole land, until I had gathered millions out of the North and the South, and they should crush slavery for ever, as the ox crushes the spider underneath his feet. But such eloquence is given to no man. It was not given to the ancient Greek who 'shook the arsenal and fulmined over Greece.' He that so often held the nobles and the mob of Rome within his hand, had it not. He that spoke as never man spake, and who has since gathered two hundred millions to his name, had it not. No man has it. The ablest must wait for time! It is idle to resist here and now. It is not the hour. If in 1765 they had attempted to carry out the Revolution by force, they would have failed. Had it failed, we had not been here to-day. There would have been no little monument at Lexington 'sacred to liberty and the rights of mankind' honoring the men who 'fell in the cause of God and their country.' No little monument at Concord; nor that tall pile of eloquent stone at Bunker Hill, to proclaim that 'Resistance to tyrants is obedience to God.' Success is due to the discretion, heroism, calmness, and forbearance of our fathers: let us wait our time. It will come--perhaps will need no sacrifice of blood."[215] [Footnote 215: 2 Parker's Occasional Sermons, p. 334-337, 343-348, 351, 352.] Gentlemen, I think Judge Finch could construct a misdemeanor out of these words; you will find in them nothing but the plain speech of a minister of the Christian religion. On the 6th of July, 1851, I preached "Of the three chief Safeguards of Society," and said:-- "Nowhere in the world is there a people so orderly, so much attached to law, as the people of these Northern States. But one law is an exception. The people of the North hate the fugitive slave law, as they have never hated any law since the stamp act. I know there are men in the Northern States who like it,--who would have invented slavery, had it not existed long before. But the mass of the Northern people hate this law, because it is hostile to the purpose of all just human law, hostile to the purpose of society, hostile to the purpose of individual life; because it is hostile to the law of God,--bids the wrong, forbids the right. We disobey that, for the same reason that we keep other laws: because we reverence the law of God. Why should we keep that odious law which makes us hated wherever justice is loved? Because we must sometimes do a disagreeable deed to accomplish an agreeable purpose? The purpose of that law is to enable three hundred thousand slaveholders to retake on our soil the men they once stole on other soil! Most of the city churches of the North seem to think that is a good thing. Very well; is it worth while for fifteen million freemen to transgress the plainest of natural laws, the most obvious instincts of the human heart, and the plainest duties of Christianity, for that purpose? The price to pay is the religious integrity of fifteen million men; the thing to buy is a privilege for three hundred thousand slaveholders to use the North as a hunting field whereon to kidnap men at our cost. Judge you of that bargain." "I adjure you to reverence a government that is right, statutes that are right, officers that are right; but to disobey every thing that is wrong. I intreat you by your love for your country, by the memory of your fathers, by your reverence for Jesus Christ, yea, by the deep and holy love of God which Jesus taught, and you now feel."[216] [Footnote 216: 2 Parker's Occasional Sermons, p. 392-394.] You will say all this is but indispensable duty; but the judge who hanged a man for treason because he promised to make his son "heir to the Crown"--meaning the "Crown Tavern" that he lived in--would doubtless find treason in my words also. On the 12th of April, 1852, I delivered an address to commemorate the first anniversary of the Kidnapping of Thomas Sims, and said:-- "But when the rulers have inverted their function, and enacted wickedness into a law which treads down the unalienable rights of man to such a degree as this, then I know no ruler but God, no law but natural Justice. I tear the hateful statute of kidnappers to shivers; I trample it underneath my feet. I do it in the name of all law; in the name of Justice and of Man; in the name of the dear God." "You remember the decision of the Circuit judge,--himself soon to be summoned by death before the Judge who is no respecter of persons,--not allowing the destined victim his last hope, 'the great writ of right.' The decision left him entirely at the mercy of the other kidnappers. The Court-room was crowded with 'respectable people,' 'gentlemen of property and standing:' they received the decision with 'applause and the clapping of hands.' Seize a lamb out of a flock, a wolf from a pack of wolves, the lambs bleat with sympathy, the wolves howl with fellowship and fear; but when a competitor for the Presidency sends back to eternal bondage a poor, friendless negro, asking only his limbs, wealthy gentlemen of Boston applaud the outrage. "'O judgment! thou art fled to brutish beasts, And men have lost their reason!'" "When the Fugitive Slave Bill passed, the six New England States lay fast asleep: Massachusetts slept soundly, her head pillowed on her unsold bales of cotton and of woollen goods, dreaming of 'orders from the South.' Justice came to waken her, and whisper of the peril of nine thousand citizens; and she started in her sleep, and, being frighted, swore a prayer or two, then slept again. But Boston woke,--sleeping, in her shop, with ears open, and her eye on the market, her hand on her purse, dreaming of goods for sale,--Boston woke broadly up, and fired a hundred guns for joy. O Boston, Boston! if thou couldst have known, in that thine hour, the things which belong unto thy peace! But no: they were hidden from her eyes. She had prayed to her god, to Money; he granted her the request, but sent leanness into her soul." "Yet one charge has been made against the Government, which seems to me a little harsh and unjust. It has been said the administration preferred low and contemptible men as their tools; judges who blink at law, advocates of infamy, and men cast off from society for perjury, for nameless crimes, and sins not mentionable in English speech; creatures 'not so good as the dogs that licked Lazarus's sores; but, like flies, still buzzing upon any thing that is raw.' There is a semblance of justice in the charge: witness Philadelphia, Buffalo, Boston; witness New York. It is true, for kidnappers the Government did take men that looked 'like a bull-dog just come to man's estate;' men whose face declared them, 'if not the devil, at least his twin-brother.' There are kennels of the courts wherein there settles down all that the law breeds most foul, loathsome, and hideous and abhorrent to the eye of day; there this contaminating puddle gathers its noisome ooze, slowly, stealthily, continually, agglomerating its fetid mass by spontaneous cohesion, and sinking by the irresistible gravity of rottenness into that abhorred deep, the lowest, ghastliest pit in all the subterranean vaults of human sin. It is true the Government has skimmed the top and dredged the bottom of these kennels of the courts, taking for its purpose the scum and sediment thereof, the Squeers, the Fagins, and the Quilps of the law, the monsters of the court. Blame not the Government; it took the best it could get. It was necessity, not will, which made the selection. Such is the stuff that kidnappers must be made of. If you wish to kill a man, it is not bread you buy: it is poison. Some of the instruments of Government were such as one does not often look upon. But, of old time, an inquisitor was always 'a horrid-looking fellow, as beseemed his trade.' It is only justice that a kidnapper should bear 'his great commission in his look.'" "I pity the kidnappers, the poor tools of men almost as base. I would not hurt a hair of their heads; but I would take the thunder of the moral world, and dash its bolted lightning on this crime of stealing men, till the name of kidnapping should be like Sodom and Gomorrah. It is piracy to steal a man in Guinea; what is it to do this in Boston? "I pity the merchants who, for their trade, were glad to steal their countrymen; I wish them only good. Debate in yonder hall has shown how little of humanity there is in the trade of Boston. She looks on all the horrors which intemperance has wrought, and daily deals in every street; she scrutinizes the jails,--they are filled by rum; she looks into the alms-houses, crowded full by rum; she walks her streets, and sees the perishing classes fall, mowed down by rum; she enters the parlors of wealthy men, looks into the bridal chamber, and meets death: the ghosts of the slain are there,--men slain by rum. She knows it all, yet says, 'There is an interest at stake!'--the interest of rum; let man give way! Boston does this to-day. Last year she stole a man; her merchants stole a man! The sacrifice of man to money, when shall it have an end? I pity those merchants who honor money more than man. Their gold is cankered, and their soul is brass,--is rusted brass. They must come up before the posterity which they affect to scorn. What voice can plead for them before their own children? The eye that mocketh at the justice of its son, and scorneth to obey the mercy of its daughter, the ravens of posterity shall pick it out, and the young eagles eat it up! "But there is yet another tribunal: 'After the death the judgment!' When he maketh inquisition for the blood of the innocent, what shall the stealers of men reply? Boston merchants, where is your brother, Thomas Sims? Let Cain reply to Christ."[217] [Footnote 217: 1 Parker's Additional Speeches, p. 50, 70, 88, 89, 92, 93, 100, 101.] The Sunday after Mr. Webster's death, Oct. 31, 1852, I spoke of that powerful man; listen to this:-- "Mr. Webster stamped his foot, and broke through into the great hollow of practical atheism, which undergulfs the State and Church. Then what a caving in was there! The firm-set base of northern cities quaked and yawned with gaping rents. 'Penn's sandy foundation' shook again, and black men fled from the city of brotherly love, as doves, with plaintive cry, flee from a farmer's barn when summer lightning stabs the roof. There was a twist in Faneuil Hall, and the doors could not open wide enough for Liberty to regain her ancient Cradle; only soldiers, greedy to steal a man, themselves stole out and in. Ecclesiastic quicksand ran down the hole amain. Metropolitan churches toppled, and pitched, and canted, and cracked, their bowing walls all out of plumb. Colleges, broken from the chain which held them in the stream of time, rushed towards the abysmal rent. Harvard led the way, '_Christo et Ecclesiæ_' in her hand. Down plunged Andover, 'Conscience and the Constitution' clutched in its ancient, failing arm. New Haven began to cave in. Doctors of Divinity, orthodox, heterodox, with only a doxy of doubt, 'no settled opinion,' had great alacrity in sinking, and went down quick, as live as ever, into the pit of Korah, Dathan, and Abiram, the bottomless pit of lower law,--one with his mother, cloaked by a surplice, hid beneath his sinister arm, and an acknowledged brother grasped by his remaining limb. Fossils of theology, dead as Ezekiel's bones, took to their feet again, and stood up for most arrant wrong. 'There is no higher law of God,' quoth they, as they went down; 'no golden rule, only the statutes of men.' A man with mythologic ear might fancy that he heard a snickering laugh run round the world below, snorting, whinnying, and neighing, as it echoed from the infernal spot pressed by the fallen monsters of ill-fame, who, thousands of years ago, on the same errand, had plunged down the self-same way. What tidings the echo bore, Dante nor Milton could not tell. Let us leave that to darkness, and to silence, and to death. "But spite of all this, in every city, in every town, in every college, and in each capsizing church, there were found Faithful Men, who feared not the monster, heeded not the stamping;--nay, some doctors of divinity were found living. In all their houses there was light, and the destroying angel shook them not. The word of the Lord came in open vision to their eye; they had their lamps trimmed and burning, their loins girt; they stood road-ready. Liberty and Religion turned in thither, and the slave found bread and wings. 'When my father and my mother forsake me, then the Lord will hold me up!' "After the 7th of March, Mr. Webster became the ally of the worst of men, the forefront of kidnapping. The orator of Plymouth Rock was the advocate of slavery; the hero of Bunker Hill put chains round Boston Court House; the applauder of Adams and Jefferson was a tool of the slaveholder, and a keeper of slavery's dogs, the associate of the kidnapper, and the mocker of men who loved the right. Two years he lived with that rabble rout for company, his name the boast of every vilest thing. "'Oh, how unlike the place from whence he fell!'" "Do men mourn for him? See how they mourn! The streets are hung with black. The newspapers are sad colored. The shops are put in mourning. The Mayor and Aldermen wear crape. Wherever his death is made known, the public business stops, and flags drop half-mast down. The courts adjourn. The courts of Massachusetts--at Boston, at Dedham, at Lowell, all adjourn; the courts of New Hampshire, of Maine, of New York; even at Baltimore and Washington, the courts adjourn; for the great lawyer is dead, and Justice must wait another day. Only the United States Court, in Boston, trying a man for helping Shadrach out of the furnace of the kidnappers,--the court which executes the Fugitive Slave Bill,--that does not adjourn; that keeps on; its worm dies not, and the fire of its persecution is not quenched, when death puts out the lamp of life! Injustice is hungry for its prey, and must not be balked. It was very proper! Symbolical court of the Fugitive Slave Bill--it does not respect life, why should it death? and, scorning liberty, why should it heed decorum?"[218] [Footnote 218: 1 Parker's Additional Speeches, 235-37, 246-47.] On the 12th of February, 1854, I preached "Some Thoughts on the new Assault upon Freedom in America." "Who put Slavery in the Constitution; made it Federal? who put it in the new States? who got new soil to plant it in? who carried it across the Mississippi--into Louisiana, Florida, Texas, Utah, New Mexico? who established it in the Capital of the United States? who adopted Slavery and volunteered to catch a runaway, in 1793, and repeated the act in 1850,--in defiance of all law, all precedent, all right? Why, it was the North. 'Spain armed herself with bloodhounds,' said Mr. Pitt, 'to extirpate the wretched natives of America.' In 1850, the Christian Democracy set worse bloodhounds afoot to pursue Ellen Craft; offered them five dollars for the run, if they did not take her; ten if they did! The price of blood was Northern money; the bloodhounds--they were Kidnappers born at the North, bred there, kennelled in her church, fed on her sacraments, blessed by her priests! In 1778, Mr. Pitt had a yet harsher name for the beasts wherewith despotic Spain hunted the red man in the woods--he called them '_Hell Hounds_.' But they only hunted 'savages, heathens, men born in barbarous lands.' What would he say of the pack which in 1851 hunted American Christians, in the 'Athens of America,' and stole a man on the grave of Hancock and Adams--all Boston looking on, and its priests blessing the deed!" "See what encourages the South to make new encroachments. She has been eminently successful in her former demands, especially with the last. The authors of the fugitive slave bill did not think that enormity could be got through Congress: it was too atrocious in itself, too insulting to the North. But Northern men sprang forward to defend it--powerful politicians supported it to the fullest extent. The worse it was, the better they liked it. Northern merchants were in favor of it--it 'would conciliate the South.' Northern ministers in all the churches of commerce baptized it, defended it out of the Old Testament, or the New Testament. The Senator of Boston gave it his mighty aid,--he went through the land a huckster of Slavery, peddling Atheism: the Representative of Boston gave it his vote. Their constituents sustained both! All the great cities of the North executed the bill. The leading Journals of Boston advised the merchants to withhold all commercial intercourse from Towns which opposed Kidnapping. There was a 'Union Meeting' at Faneuil Hall. You remember the men on the platform: the speeches are not forgotten. The doctrine that there is a Law of God above the passions of the multitude and the ambition of their leaders, was treated with scorn and hooting: a loud guffaw of vulgar ribaldry went up against the Justice of the Infinite God! All the great cities did the same. Atheism was inaugurated as the first principle of Republican government; in politics, religion makes men mad! Mr. Clay declared that 'no Northern gentleman will ever help return a fugitive Slave!' What took place at Philadelphia? New York? Cincinnati?--nay, at Boston? The Northern churches of commerce thought Slavery was a blessing, Kidnapping a 'grace.' The Democrats and Whigs vie with each other in devotion to the fugitive slave bill. The 'Compromises' are the golden rule. The North conquered her prejudices. The South sees this, and makes another demand. Why not? I am glad of it. She serves us right." "In 1775, what if it had been told the men all red with battle at Lexington and Bunker Hill,--'your sons will gird the Court House with chains to kidnap a man; Boston will vote for a Bill which puts the liberty of any man in the hands of a Commissioner, to be paid twice as much for making a Slave as for declaring a freeman; and Boston will call out its soldiers to hunt a man through its streets!' What if on the 19th of April, 1775, when Samuel Adams said, 'Oh! what a glorious morning is this!' as he heard the tidings of war in the little village where he passed the night,--what if it had been told him,--'On the 19th of April, seventy-six years from this day, will your City of Boston land a poor youth at Savannah, having violated her own laws, and stained her Magistrates' hands, in order to put an innocent man in a Slave-master's jail?' What if it had been told him that Ellen Craft must fly out of Democratic Boston, to Monarchic, Theocratic, Aristocratic England, to find shelter for her limbs, her connubial innocence, and the virtue of her woman's heart? I think Samuel would have cursed the day in which it was said a man-child was born, and America was free! What if it had been told Mayhew and Belknap, that in the pulpits of Boston, to defend kidnapping should be counted to a man as righteousness? They could not have believed it. They did not know what baseness could suck the Northern breast, and still be base."[219] [Footnote 219: 1 Parker's Additional Speeches, p. 351, 352, 357-359, 368, 369.] You will think all this is good morality; but Mr. Curtis in 1836, maintained that kidnapping in Massachusetts, would "promote harmony and good-will where it is extremely desirable to promote it, encourage frequent intercourse, and soften prejudice by increasing acquaintance, and tend to peace and good-will." Nay, that it may be "perfectly consistent with our policy ... _to interfere actively to enable the citizens of those States_ [the slave States] _to enjoy those institutions at home_." "Slavery is not immoral;" "By the law of this Commonwealth slavery is not immoral."[220] [Footnote 220: Med Case, p. 9, 11.] After Commissioner Loring had kidnapped Anthony Burns, I attended the meeting at Faneuil Hall, and spoke. Gentlemen, I did not finish the speech I had begun, for news came that an attack was made on the Court House, and the meeting was thrown into confusion. I did not speak in a corner, but in the old Cradle of Liberty. Here is the report of the speech which was made by a phonographer, and published in the newspapers of the time--I have no other notes of it. You shall see if there be a misdemeanor in it. Here is the speech:-- "FELLOW-SUBJECTS OF VIRGINIA--[Loud cries of 'No,' 'no,' and 'you must take that back!'] FELLOW-CITIZENS OF BOSTON, then--['Yes,' 'yes,']--I come to condole with you at this second disgrace which is heaped on the city made illustrious by _some_ of those faces that were once so familiar to our eyes. [Alluding to the portraits which _once hung_ conspicuously in Faneuil Hall, but which had been removed to obscure and out-of-the-way locations.] Fellow-citizens--A deed which Virginia commands has been done in the city of John Hancock and the 'brace of Adamses.' It was done by a Boston hand. It was a Boston man who issued the warrant; it was a Boston Marshal who put it in execution; they are Boston men who are seeking to kidnap a citizen of Massachusetts, and send him into slavery for ever and ever. It is our fault that it is so. Eight years ago, a merchant of Boston 'kidnapped a man on the high road between Faneuil Hall and Old Quincy,' at 12 o'clock,--at the noon of day,--and the next day, mechanics of this city exhibited the half-eagles they had received for their share of the spoils in enslaving a brother man. You called a meeting in this hall. It was as crowded as it is now. I stood side by side with my friend and former neighbor, your honorable and noble Chairman to-night [George R. Russell, of West Roxbury], [Loud Cheers,] while this man who had fought for liberty in Greece, and been imprisoned for that sacred cause in the dungeons of Poland, [Dr. Samuel G. Howe,] stood here and introduced to the audience that 'old man eloquent,' John Quincy Adams. [Loud Cheers.] "It was the last time he ever stood in Faneuil Hall. He came to defend the unalienable rights of a friendless negro slave, kidnapped in Boston. There is even no picture of John Quincy Adams to-night. "A Suffolk Grand-Jury would find no indictment against the Boston merchant for kidnapping that man. ['Shame,' 'shame.'] If Boston had spoken then, we should not have been here to-night. We should have had no fugitive slave bill. When that bill passed, we fired a hundred guns. "Don't you remember the Union meeting held in this very hall? A man stood on this platform,--he is a Judge of the Supreme Court now,--and he said--When a certain 'Reverend gentleman' is indicted for perjury, I should like to ask him how he will answer the charge? And when that 'Reverend gentleman' rose, and asked, 'Do you want an answer to your question?' Faneuil Hall cried out,--'No,' 'no,'--'Throw him over!' Had Faneuil Hall spoken then on the side of Truth and Freedom, we should not now be the subjects of Virginia. "Yes, we are the vassals of Virginia. She reaches her arm over the graves of our mothers, and kidnaps men in the city of the Puritans; over the graves of Samuel Adams and John Hancock. [Cries of 'Shame!'] 'Shame!' so I say; but who is to blame? 'There is no north,' said Mr. Webster. There is none. The South goes clear up to the Canada line. No, gentlemen, there is no Boston to-day. There _was_ a Boston once. Now, there is a North suburb to the city of Alexandria,--that is what Boston is. [Laughter.] And you and I, fellow-subjects of the State of Virginia--[Cries of 'no,' 'no.' 'Take that back again.']--I will take it back when you show me the fact is not so.--Men and brothers, (brothers, at any rate,) I am not a young man; I have heard hurrahs and cheers for liberty many times; I have not seen a great many deeds done for liberty. I ask you, are we to have deeds as well as words? ['Yes,' 'yes,' and loud cheers.] "Now, brethren, you are brothers at any rate, whether citizens of Massachusetts or subjects of Virginia--I am a minister--and, fellow-citizens of Boston, there are two great laws in this country; one of them is the LAW OF SLAVERY; that law is declared to be a 'finality.' Once the Constitution was formed 'to establish justice, promote tranquillity, and secure the blessings of liberty to ourselves and our posterity.' _Now_, the Constitution is not to secure liberty; it is to extend slavery into Nebraska. And when slavery is established there, in order to show what it is, there comes a sheriff from Alexandria, to kidnap a man in the city of Boston, and he gets a Judge of Probate, in the county of Suffolk, to issue a writ, and another Boston man to execute that writ! [Cries of 'shame,' 'shame.'] "Slavery tramples on the Constitution; it treads down State Rights. Where are the Rights of Massachusetts? A fugitive slave bill Commissioner has got them all in his pocket. Where is the trial by jury? Watson Freeman has it under his Marshal's staff. Where is the great writ of personal replevin, which our fathers wrested, several hundred years ago, from the tyrants who once lorded it over Great Britain? Judge Sprague trod it under his feet! Where is the sacred right of _habeas corpus_? Deputy Marshal Riley can crush it in his hands, and Boston does not say any thing against it. Where are the laws of Massachusetts forbidding State edifices to be used as prisons for the incarceration of fugitives? They, too, are trampled underfoot. 'Slavery is a finality.' "These men come from Virginia, to kidnap a man here. Once, this was Boston; now, it is a Northern suburb of Alexandria. At first, when they carried a fugitive slave from Boston, they thought it was a difficult thing to do it. They had to get a Mayor to help them; they had to put chains round the Court House; they had to call out the 'Sims Brigade'; it took nine days to do it. Now, they are so confident that we are subjects of Virginia, that they do not even put chains round the Court House; the police have nothing to do with it. I was told to-day that one of the officers of the city said to twenty-eight police-men, 'If any man in the employment of the city meddles in this business, he will be discharged from service, without a hearing.' [Great applause.] Well, gentlemen, how do you think they received that declaration? They shouted, and hurrahed, and gave three cheers. [Renewed applause.] My friend here would not have had the honor of presiding over you to-night, if application had been made a little sooner to the Mayor. Another gentleman told me that, when that man (the Mayor) was asked to preside at this meeting, he said that he regretted that all his time to-night was previously engaged. If he had known it earlier, he said, he might have been able to make arrangements to preside. When the man was arrested, he told the Marshal he regretted it, and that his sympathies were wholly with the slave. [Loud applause.] Fellow-citizens, remember that word. Hold your Mayor to it, and let it be seen that he has got a background and a foreground, which will authorize him to repeat that word in public, and act it out in Faneuil Hall. I say, so confident are the slave agents now, that they can carry off their slave in the daytime, that they do not put chains round the Court House; they have got no soldiers billeted in Faneuil Hall, as in 1851. They think they can carry this man off to-morrow morning in a cab. [Voices--'They can't do it.' 'Let's see them try.'] "I say, there are two great laws in this country. One is the slave law. That is the law of the President of the United States; it is the law of the Commissioner; it is the law of every Marshal, and of every meanest ruffian whom the Marshal hires to execute his behests. "There is another law, which my friend, Mr. Phillips, has described in language such as I cannot equal, and therefore shall not try; I only state it in its plainest terms. It is the Law of the People when they are sure they are right and determined to go ahead. [Cheers and much confusion.] "Now, gentlemen, there was a Boston once, and you and I had fathers--brave fathers; and mothers who stirred up those fathers to manly deeds. Well, gentlemen, once it came to pass that the British Parliament enacted a 'law'--_they_ called it law--issuing stamps here. What did your fathers do on that occasion? They said, in the language of Algernon Sydney, quoted in your resolutions, 'that which is not just is not law, and that which is not law ought not to be obeyed.'--[Cheers.] They did not obey the stamp act. They did not call it law, and the man that did call it a law, here, eighty years ago, would have had a very warm coat of tar and feathers on him. They called it an 'act,' and they took the Commissioner who was here to execute it, took him solemnly, manfully,--_they didn't hurt a hair of his head_; they were non-resistants, of a very potent sort, [Cheers,]--and made him take a solemn oath that he would not issue a single stamp. He was brother-in-law of the Governor of the State, the servant of a royal master, 'exceedingly respectable,' of great wealth, and once very popular; but they took him, and made him swear not to execute his commission; and he kept his oath, and the stamp act went to its own place, and you know what that was. [Cheers.] That was an instance of the people going behind a wicked law to enact Absolute Justice into their statute, and making it Common Law. You know what they did with the tea. "Well, gentlemen, in the South there is a public opinion, it is a very wicked public opinion, which is stronger than law. When a colored seaman goes to Charleston from Boston, he is clapped instantly into jail, and kept there until the vessel is ready to sail, and the Boston merchant or master must pay the bill, and the Boston black man must feel the smart. That is a wicked example, set by the State of South Carolina. When Mr. Hoar, one of our most honored and respected fellow-citizens, was sent to Charleston to test the legality of this iniquitous law, the citizens of Charleston ordered him off the premises, and he was glad to escape to save himself from further outrage. There was no violence, no guns fired. That was an instance of the strength of public opinion--of a most unjust and iniquitous public opinion." * * * * * "Well, gentlemen, I say there is one law--slave law; it is everywhere. There is another law, which also is a finality; and that law, it is in your hands and your arms, and you can put it in execution, just when you see fit. "Gentlemen, I am a clergyman and a man of peace; I love peace. But there is a means, and there is an end; Liberty is the end, and sometimes peace is not the means towards it. [Applause.] Now, I want to ask you what you are going to do. [A voice--'shoot, shoot.'] There are ways of managing this matter without shooting anybody. Be sure that these men who have kidnapped a man in Boston, are cowards, every mother's son of them; and if we stand up there resolutely, and declare that this man shall not go out of the city of Boston, _without shooting a gun_--[cries of 'that's it,' and great applause,]--then he won't go back. Now, I am going to propose that when you adjourn, it be to meet at _Court Square, to-morrow morning at nine o'clock_. As many as are in favor of that motion will raise their hands. [A large number of hands were raised, but many voices cried out, 'Let's go to-night,' 'let's pay a visit to the slave-catchers at the Revere House,' etc. 'Put that question.'] Do you propose to go to the Revere House to-night, then show your hands. [Some hands were held up.] It is not a vote. We shall meet at _Court Square, at nine o'clock to-morrow morning_." * * * * * On the following Sunday, May 28, in place of the usual Scripture passages, I extemporized the following "Lesson for the Day," which on Monday appeared in the newspapers:-- "Since last we came together, there has been a man stolen in the city of our fathers. It is not the first; it may not be the last. He is now in the great slave-pen in the city of Boston. He is there against the law of the Commonwealth, which, if I am rightly informed, in such cases prohibits the use of State edifices as United States jails." "A man has been killed by violence. Some say he was killed by his own coadjutors: I can easily believe it; there is evidence enough that they were greatly frightened. They were not United States soldiers, but volunteers from the streets of Boston, who, for their pay, went into the Court House to assist in kidnapping a brother man. They were so cowardly that they could not use the simple cutlasses they had in their hands, but smote right and left, like ignorant and frightened ruffians as they are. They may have slain their brother or not--I cannot tell." "Why is Boston in this confusion to-day? The fugitive slave bill Commissioner has just now been sowing the wind, that we may reap the whirlwind. The old fugitive slave bill Commissioner stands back; he has gone to look after his 'personal popularity.' But when Commissioner Curtis does not dare appear in this matter, another man comes forward, and for the first time seeks to kidnap his man also in the city of Boston." "But he has sown the wind, and we are reaping the whirlwind. All this confusion is his work. He knew he was stealing a Man born with the same unalienable right to 'life, liberty, and the pursuit of happiness,' as himself. He knew the slaveholders had no more right to Anthony Burns than to his own daughter. He knew the consequences of stealing a man. He knew that there are men in Boston who have not yet conquered their prejudices--men who respect the Higher Law of God. He knew there would be a meeting at Faneuil Hall, gatherings in the streets. He knew there would be violence." "Edward Greeley Loring, Judge of Probate for the County of Suffolk, in the State of Massachusetts, fugitive slave bill Commissioner of the United States, before these citizens of Boston, on Ascension Sunday, assembled to worship God, I charge you with the death of that man who was killed on last Friday night. He was your fellow-servant in kidnapping. He dies at your hand. You fired the shot which makes his wife a widow, his child an orphan. I charge you with the peril of twelve men, arrested for murder, and on trial for their lives. I charge you with filling the Court House with one hundred and eighty-four hired ruffians of the United States, and alarming not only this city for her liberties that are in peril, but stirring up the whole Commonwealth of Massachusetts with indignation, which no man knows how to stop--which no man can stop. You have done it all!"[221] [Footnote 221: 2 Parker's Additional, 74, 75, 81, 83.] June 4th, I preached "of the New Crime against Humanity," and said:-- "Wednesday, the 24th of May, the city was all calm and still. The poor black man was at work with one of his own nation, earning an honest livelihood. A Judge of Probate, Boston born and Boston bred, a man in easy circumstances, a Professor in Harvard College, was sitting in his office, and with a single spurt of his pen he dashes off the liberty of a man--a citizen of Massachusetts. He kidnaps a man endowed by his Creator with the unalienable right to life, liberty, and the pursuit of happiness. He leaves the writ with the Marshal, and goes home to his family, caresses his children, and enjoys his cigar. The frivolous smoke curls round his frivolous head, and at length he lays him down to sleep, and, I suppose, such dreams as haunt such heads. But when he wakes next morn, all the winds of indignation, wrath, and honest scorn, are let loose. Before night, they are blowing all over this commonwealth--ay, before another night they have gone to the Mississippi, and wherever the lightning messenger can tell the tale. So have I read in an old mediæval legend that one summer afternoon, there came up a 'shape, all hot from Tartarus,' from hell below, but garmented and garbed to represent a civil-suited man, masked with humanity. He walked quiet and decorous through Milan's stately streets, and scattered from his hand an invisible dust. It touched the walls; it lay on the streets; it ascended to the cross on the minster's utmost top. It went down to the beggar's den. Peacefully he walked through the streets, vanished and went home. But the next morning, the pestilence was in Milan, and ere a week had sped half her population were in their graves; and half the other half, crying that hell was clutching at their hearts, fled from the reeking City of the Plague!" "I have studied the records of crime--it is a part of my ministry. I do not find that any College Professor has ever been hanged for murder in all the Anglo-Saxon family of men, till Harvard College had that solitary shame. Is not that enough? Now she is the first to have a Professor that kidnaps men. 'The Athens of America' furnished both! "I can understand how a man commits a crime of passion, or covetousness, or rage, nay, of revenge, or of ambition. But for a man in Boston, with no passion, no covetousness, no rage, with no ambition nor revenge, to steal a poor negro, to send him into bondage,--I cannot comprehend the fact. I can understand the consciousness of a lion, not a kidnapper's heart." "But there is another court. The Empsons and the Dudleys have been summoned there before: Jeffreys and Scroggs, the Kanes, and the Curtises, and the Lorings, must one day travel the same unwelcome road. Imagine the scene after man's mythological way. 'Edward, where is thy brother, Anthony?' 'I know not; am I my brother's keeper, Lord?' 'Edward, where is thy brother, Anthony?' 'Oh, Lord, he was friendless, and so I smote him; he was poor, and I starved him of more than life. He owned nothing but his African body. I took that away from him, and gave it to another man!' "Then listen to the voice of the Crucified--'Did I not tell thee, when on earth, "Thou shalt love the Lord thy God with all thy understanding and thy heart?"' 'But I thought thy kingdom was not of this world.' "'Did I not tell thee that thou shouldst love thy neighbor as thyself? Where is Anthony, thy brother? I was a stranger, and you sought my life; naked, and you rent away my skin; in prison, and you delivered me to the tormentors--fate far worse than death. Inasmuch as you did it to Anthony Burns, you did it unto me.'"[222] [Footnote 222: Parker's Additional, 167, 168, 169, 170, 171, 172.] * * * * * Gentlemen, I suppose the honorable Judge had the last three addresses in his mind while concocting his charge to the Grand-Jury which refused to find a bill. I infer this partly from what took place in the room of the next Grand-Jury which found this indictment, and partly also from another source which you will look at for a moment. I preach on Sundays in the Music Hall, which is owned by a Corporation who rent it to the 28th Congregational Society for their religious meetings. Mr. Charles P. Curtis, father-in-law of the Hon. Judge Curtis, and step-brother of Commissioner Loring, and a more distant relation but intimate friend of George T. Curtis, was then president of that Corporation, and one of its directors. At a meeting of the corporation, held presently after the kidnapping of Mr. Burns, Mr. Charles P. Curtis and his family endeavored to procure a vote of the Corporation to instruct the directors "to terminate the lease of the 28th Congregational Society as soon as it can be legally done, and not to renew it." Mr. Charles P. Curtis managed this matter clandestinely, but not with his usual adroitness, for at the meeting he disclosed the cause of his act,--that _Mr. Parker had called his brother a murderer_, probably referring to the passage just read from the "Lesson for the Day." But he took nothing by that motion.[223] [Footnote 223: See the communications of Messrs. Chas. P. Curtis and Thomas B. Curtis, in the Boston Daily Advertiser of June, 1854; and the other articles setting forth the facts of the case.] What influence this private and familistic disposition had in framing the Judge's charge, I leave it for you and the People of America to determine. You also can conjecture whether it had any effect on Mr. Greenough, the other son-in-law of Mr. Charles P. Curtis, who refused to return my salutation, and who, "by a miracle," was put on the new Grand-Jury after the old one was discharged, and then was so "very anxious to procure an indictment" against me. I leave all that with you. You can easily appreciate the efforts made to silence not only my Sunday preaching, but also the magnificent eloquence of Wendell Phillips; yes, to choke all generous speech, in order that kidnappers might pursue their vocation with none to molest or make them afraid. But, Gentlemen, I fear you do not yet quite understand the arrogance of our Southern masters, and the fear and hatred they bear towards all who dare speak a word in behalf of the Rights of outraged Humanity. The gag-law of Congress which silenced the House of Representatives till John Quincy Adams, that noble son of a noble sire, burst through the Southern chain; the violation of the United States mails to detect "incendiary publications;" the torturing of men and women for an opinion against Slavery--all these are notorious; but they and all that I have yet stated of the action of the Federal Courts in the fugitive slave bill cases, with the "opinions" of Northern Judges already mentioned, do not fill up the cup of bitterness and poison which is to be poured down our throats. Let me, therefore, here give you one supplementary piece of evidence to prove how intensely the South hates the Northern Freedom of Speech. I purposely select this case from a period when Southern arrogance and Northern servility were far less infamous than now. About twenty years ago Mr. R.G. Williams of New York published this sentence in a newspaper called the Emancipator,--"God commands and all nature cries out, that man should not be held as property. The system of making men property has plunged 2,250,000 of our fellow countrymen into the deepest physical and moral degradation, and they are every moment sinking deeper." For this he was indicted by a Grand-Jury of the State of Alabama, and the Governor of that State made a demand on the Executive of New York insisting that Mr. Williams should be delivered up to take his trial in Alabama--a State where he had never been! But the New York Governor, after consulting with his law-advisers, did not come to the conclusion that it was consistent with the public policy of New York to "interfere actively" and promote Slavery in Alabama. _So he refused to deliver up Mr. Williams!_[224] [Footnote 224: Med Case, p. 25.] Gentlemen of the Jury, before you can convict me of the crime charged, you must ask three several sets of questions, and be satisfied of all these things which I will now set forth. I. THE QUESTION OF FACT. Did I do the deed charged, and obstruct Marshal Freeman while in the peace of the United States, and discharging his official duty? This is a quite complicated question. Here are the several parts of it:-- 1. Was there any illegal obstruction or opposition at all made to the Marshal? This is not clear. True, an attack was made on the doors and windows of the Court House, but that is not necessarily an attack on the Marshal or his premises. He has a right in certain rooms of the Court House, and this he has in virtue of a lease. He has also a right to use the passage-ways of the house, in common with other persons and the People in general. His rights as Tenant are subject to the terms of his lease and to the law which determines the relation of Tenant and Landlord. Marshal Freeman as tenant has no more rights than Freeman Marshal, or John Doe, or Rachel Roe would have under the same circumstances. Of course he had a legal right to defend himself if attacked, and to close his own doors, bar and fortify the premises he rented against the illegal violence of others. But neither his lease nor the laws of the land authorized him to close the other doors, or to obstruct the passages, no more than to obstruct the Square or the Street. No lease, no law gave him that right. Now there have been three secret examinations of witnesses relative to this assault, before three Grand-Juries. No evidence has been offered which shows _that any attack was made on the premises of the Marshal_. The Supreme Court of Massachusetts was in session at the moment the attack was made on the Court House; the venerable Chief Justice was on the Bench; the jury had retired to consider the capital case then pending, and were expected to return with their verdict. The People had a right in the court-room, a right in the passage-ways and doors which lead thither. That court had not ordered the room to be cleared or the doors to be shut. Marshal Freeman closed the outer doors of the Court House, and thus debarred men of their right to enter a Massachusetts Court of Justice solemnly deciding a capital case. You are to consider whether an attack on the outer doors of the Court House, is an illegal attack on the Marshal who had shut those doors without any legal authority. If you decide this point as the government wishes, then you will proceed to the next question. 2. Did I actually obstruct him? If not, then the inquiry stops here. You answer "not guilty." But if I did, then it is worth while to consider how I obstructed him. (1.) Was it by a physical act, by material force; or, (2.) by a metaphysical act, immaterial or spiritual force--a word, thought, a feeling, a wish, approbation, assent, consent, "evincing an express liking." 3. Was Marshal Freeman, at the time of the obstruction, in the peace of the United States, or was he himself violating the law thereof? For if he were violating the law and thereby injuring some other man, and I obstructed him in that injury, then I am free from all legal guilt, and did a citizen's duty in obstructing his illegal conduct. Now it appears that he was kidnapping and stealing Anthony Burns for the purpose of making him the slave of one Suttle of Virginia, who wished to sell him and acquire money thereby; and that Mr. Freeman did this at the instigation of Commissioner Loring who was entitled to receive ten dollars if he enslaved Mr. Burns, and five only for setting him free. It appears also that Marshal Freeman was to receive large, official money for this kidnapping, and such honor as this Administration, and the Hunker newspapers, and lower law divines can bestow. Now you are to consider whether a man so doing was in the peace of the United States. He professes to have acted under the fugitive slave bill which authorizes him to seize, kidnap, steal, imprison, and carry off any person whatsoever, on the oath of any slaveholder who has fortified himself with a piece of paper of a certain form and tenor from any court of slaveholders in the slave States. Is that bill Constitutional? The Constitution of the United States is the People's Power of Attorney by which they authorize certain servants, called Legislative, Judicial, and Executive officers, to do certain matters and things in a certain way, but prohibit them from doing in the name of the People, any thing except those things specified, or those in any but the way pointed out. Does the fugitive slave bill attempt those things and only those, in the way provided for in that Power of Attorney; or other things, or in a different way? To determine this compound question you will look (1.) at the ultimate Purpose of the Constitution, the End which the People wanted to attain; and (2.) at the provisional Means, the method by which they proposed to reach it. Here of course the Purpose is more important than the Means. The Preamble to this Power of Attorney clearly sets forth this Purpose aimed at: here it is, "to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the Common Defence, promote the General Welfare, and secure the Blessings of Liberty." Is the fugitive slave bill a Measure tending to that End? To answer that question you are to consult your own mind and conscience. You are not to take the opinion of the Court. For (1.) it would probably be their purchased _official_ opinion which the government pays for, and so is of no value whatever; or (2.) if it be their _personal_ opinion, from what Mr. Sprague and Mr. Curtis have said and done before, you know that their personal opinion in the matter would be of no value whatsoever. To me it is very plain that kidnapping a man in Boston and making him a slave, is not the way to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the Common Defence, promote the General Welfare, or secure the Blessings of Liberty. But you are to judge for yourselves. If you think the fugitive slave bill not a Means towards that End, which this national Power of Attorney proposes, then you will think it is unconstitutional, that Mr. Freeman was not in the peace of the United States, but acting against it; and then it was the Right of every citizen to obstruct his illegal wickedness and might be the Duty of some. But not only does the fugitive slave bill contravene and oppose the Purpose of the Constitution, it also transcends the Means which that Power of Attorney declares the People's agents shall make use of, and whereto it absolutely restricts them. The Constitution prescribes that "the Judicial power shall be vested in one Supreme Court, and in such inferior courts the Congress may ordain and establish." "The Judges ... shall hold their offices during good behavior, and shall ... receive a compensation which shall not be diminished during their continuance in office." Now the Commissioner who kidnaps a man and declares him a slave, exercises _judicial power_. Commissioner Loring himself confesses it, in his Remonstrance against being removed from the office of Judge of Probate. You are to consider whether a Commissioner appointed by the Judge of the Court as a ministerial officer to take "bail and affidavits," and paid twice as much for stealing a victim as for setting free a man, is either such a "supreme" or such an "inferior court" as the Constitution vests the "judicial powers" in. If not, then the fugitive slave bill is unconstitutional because it does not use the Means which the People's Power of Attorney points out. Of course the inquiry stops at this point, and you return "not guilty." 4. It is claimed that the fugitive slave bill is sustained by this clause in the Constitution, "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."[225] But if you try the fugitive slave bill by this rule, you must settle two questions. (1.) Who is meant by persons "held to service or labor?" and (2.) by whom shall they "be delivered up on claim?" Let us begin with the first. [Footnote 225: Art. iv. § 2, ¶ 2.] (1.) Who are the persons "held to service or labor?" The preamble to this People's Power of Attorney, sets forth the matters and things which the People's agents are empowered to achieve. "They are to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common Defence, promote the General Welfare and secure the Blessings of Liberty." Now the fugitive-from-labor clause must be interpreted in part by the light of the Purpose of the Constitution. So it would appear that this Power of Attorney, requires the delivery of only such as are _justly_ "held to service or labor;" and only to those men to whom this "service" is _justly_ "due." Surely, it would be a monstrous act to deliver up to his master a person _unjustly_ "held to service or labor," or one justly held to those to whom his service was not _justly_ due: it would be as bad to deliver up the _wrong fugitive_, as to deliver the right fugitive to the _wrong claimant_: it would be also monstrous to suppose that the People of the United States, with the Declaration of Independence in their memory, should empower their attorneys to deliver up a man _unjustly_ held to service or labor, and that too by the very instrument which directs them to "establish Justice" and "secure the Blessings of Liberty." Whatsoever interpretation was at the time put on the Constitution, whatsoever the People thereby intended, two things are plain--namely, (1.) that the language implies only such as are _justly_ held to service, or labor, and (2.) that the People had no moral right to deliver up any except such as were _justly_ held, and had _unjustly_ escaped. If the opposite interpretation be accepted, and that clause be taken without restrictions, then see what will follow. South Carolina has already made a law by which she imprisons all _colored_ citizens of the free States who are found on her soil. Let us suppose she makes a new law for reducing to perpetual slavery all the white citizens of Massachusetts whom she finds on her soil; that a Boston vessel with 500 Boston men and women--sailing for California,--is wrecked on her inhospitable coast, and those persons are all seized and reduced to slavery; but some ten or twenty of the most resolute escape from the "service or labor" to which they are held, and return to their business in Boston. But their "owners" come in pursuit; the kidnapping Commissioners, Curtis and Loring, with the help of the rest of the family of men-stealers, arrest them under the fugitive slave bill. On the mock trial, it is shown by the kidnapper that they were legally "held to service or labor," and according to the constitution "shall be delivered up;" that this enslavement is perfectly "legal" in South Carolina; and the constitution says that no "law or regulation" of Massachusetts shall set them free. They must go with Sims and Burns. Gentlemen, you see where you are going, if you allow the Constitution of parchment to override the Constitution of Justice. (2.) By whom shall they "be delivered up?" Either by the Federal Government, or else by the Government of the State into which they have escaped. Now the Federal Government has no constitutional power, except what the Constitution gives it. Gentlemen, there is not a line in that Power of Attorney by which the People authorize the Federal Government to make a man a slave in Massachusetts or anywhere else. I know the Government has done it, as the British Government levied ship-money, and put men to the rack, but it is against the Constitution of the land. Gentlemen, you will settle these constitutional questions according to your conscience, not mine. But if the fugitive slave bill demands the rendition of men from whom service is not _justly_ due--due by the Law of God, or if the Government unconstitutionally aims to do what the Constitution gave it no right to do--then the Marshal was not "in the peace of the United States." Your inquiry stops at this point. 5. But, if satisfied on all which relates to this question of his being in the peace of the United States, you are next to inquire if Mr. Freeman, at the time of the obstruction was "Marshal of the United States," and "in the due and lawful discharge of his duties as such officer." There is no doubt that he was Marshal; but there may be a doubt that he was in the "lawful discharge of his duties as such officer." Omitting what I first said, (I. 1.) see what you must determine in order to make this clear. (1.) Was Commissioner Loring, who issued the warrant to kidnap Mr. Burns, legally qualified to do that act. Gentlemen, there is no record of his appointment and qualification by the form of an oath. No evidence has been adduced to this point. Mr. Loring says he was duly appointed and qualified. There is no written line, no other word of mouth to prove it. (2.) Admitting that Mr. Loring had the legal authority to command Mr. Freeman to steal Mr. Burns, it appears that stealing was done feloniously. The Marshal's guard seized him on the charge of Burglary--a false charge. You are to consider whether Mr. Freeman had legally taken possession of his victim. (3.) If satisfied thus far, you are to inquire if he held him legally. It seems he was imprisoned in a public building of Massachusetts, which was by him used as a jail for the purpose of keeping a man claimed as a fugitive slave, contrary to the express words of a regular and constitutional statute of Massachusetts. If you find that Mr. Freeman was not in the lawful discharge of his duties as Marshal, then the inquiry stops here, and you return a verdict of "not guilty." But if you are convinced that an obstruction was made against a Marshal in the peace of the United States, and in the legal discharge of a legal, constitutional duty, then you settle the question of Fact against me, and proceed to the next point. II. _The Question of Law._ 1. Is there a law of the United States punishing this deed of mine? The answer will depend partly on the kind of opposition or obstruction which I made. If you find (1.) that I obstructed him, while in the legal discharge of his legal duties, with physical force, violence, then there is a law, clear and unmistakable, forbidding and punishing that offence. But if you find (2.) that I obstructed him with only metaphysical force,--"words," "thoughts," "feelings," "wishes," "consent," "assent," "evincing an express liking," "or approbation," then it may be doubtful to you whether the law of 1790, or any other law of the United States forbids that. 2. But if you find there is such a law, punishing such metaphysical resistance--and the court by the charge to the Grand-Jury seems plainly of that opinion, which is fortified by the authority of Chief Justice Kelyng and Judge Chase, two impeached judges--then you will consider whether that law is constitutional. And here you will look at two things, (1.) The Purpose of the Constitution already set forth; and (2.) at the Means provided for by that Power of Attorney. For if the agents of the People--legislative, judiciary, or executive--have exceeded their delegated authority, then their act is invalid and binding on no man. If I, in writing, authorize my special agent to sell my Ink-stand for a dollar, I am bound by his act in obedience thereto. But if on that warrant he sells my Writing-Desk for that sum, I am not bound by his unauthorized act. Now I think there will be grave doubts, whether any law, which with fine and imprisonment punishes such words, thoughts, feelings, consent, assent, "express liking," approbation, is warranted by the People's Power of Attorney to their agents. The opinion of the Court on such a matter, Gentlemen, I think is worth as much as Bacon's opinion in favor of the rack; or Jones's opinion that Charles I. had the right to imprison members of Parliament for words spoken in the Commons' Debate; or the opinion of the ten judges that Ship-money was lawful; or of the two chief justices that the Seven Bishops' Petition to James II. was high treason; or Thurlow's opinion that a jury is the natural enemy of the King. Gentlemen, I think it is worth nothing at all. But if you think otherwise, you have still to ask:-- 3. Is this law just? That is does it coincide with the Law of God, the Constitution of the Universe? There your own conscience must decide. Mr. Curtis has told you there is no Morality but Legality, no standard of Right and Wrong but the Statute, your only light comes from this printed page, "Statutes of the United States," and through these sheepskin covers. Gentlemen, if your conscience is also bound in sheepskin you will think as these Honorable Judges, and recognize only Judge Curtis's "Standard of Morality,"--no Higher Law. But even if you thus dispose of the Question of Law, there will yet remain the last part of your function. III. _The Question of the Application of the Law to the Fact._ To determine this Question you are to ask:-- 1. Does the law itself, the act of 1790, apply to such acts, that is, to such words, thoughts, wishes, feelings, consent, assent, approbation, express liking, and punish them with fine and imprisonment? If not, the consideration ends: but if it does, you will next ask:-- 2. Is it according to the Constitution of the United States--its Purpose, its Means--thus to punish such acts? If not satisfied thereof, you stop there; but if you accept Judge Curtis's opinion then you will next inquire:-- 3. Is it expedient in this particular case to apply this law, under the circumstances, to this man, and punish him with fine and imprisonment? If you say "yes" you will then proceed to the last part of the whole investigation, and will ask:-- 4. Is it just and right; that is according to the Natural Law of God, the Constitution of the Universe? Here you will consider several things. (1.) What was the Marshal legally, constitutionally, and justly doing at the time he was obstructed? He was stealing, kidnapping, and detaining an innocent man, Anthony Burns, with the intention of depriving him of what the Declaration of Independence calls his natural and unalienable Right to liberty and the pursuit of happiness. Mr. Burns had done no wrong or injury to any one--but simply came to Massachusetts, to possess and enjoy these natural rights. Marshal Freeman had seized him on the false charge of burglary, had chained him in a dungeon contrary to Massachusetts law,--there were irons on his hands. It is said he was a slave: now a slave is a person whom some one has stolen from himself, and by force keeps from his natural rights. Mr. Burns sought to rescue himself from the thieves who held him; Marshal Freeman took the thieves' part. (2.) Was there any effectual mode of securing to Mr. Burns his natural and unalienable Right except the mode of forcible rescue? Gentlemen of the Jury, it is very clear there was none at all. The laws of Massachusetts were of no avail. Your own Supreme Court, which in 1832, at the instigation of Mr. Charles P. Curtis, sent a little boy not fourteen years old into Cuban Slavery to gratify a slave-hunting West Indian, in 1851, had voluntarily put its neck under the Southern chain. Your Chief Justice, who acquired such honorable distinction in 1836 by setting free the little girl Med from the hands of the Curtises, in 1851 spit in the face of Massachusetts, and spurned her laws with his judicial foot. It was plain that Commissioner Loring did not design to allow his victim a fair trial--for he had already prejudged the case; he advised Mr. Phillips "to make no defence, put no 'obstruction' in the way of the man's going back, as he probably will," and, before hearing the defence sought to settle the matter by a sale of Mr. Burns. Gentlemen, the result showed there was no chance of what the United States law reckons justice being done in the case--for Commissioner Loring not only decided the fate of Mr. Burns against law, and against evidence, but communicated his decision to the slave-hunters nearly twenty-four hours before he announced it in open court! No, Gentlemen, when a man claimed as a fugitive is brought before either of these two members of this family of kidnappers--who run now in couples, hunting men and seeking whom they may devour--there is no hope for him: it is only a mock-trial, worse than the Star-chamber inquisition of the Stuart kings. Place no "obstructions in the way of the man's going back," said the mildest of the two, "as he probably will." Over that door, historic and actual, as over that other, but fabulous, gate of Hell should be written:-- "Through me they go to the city of sorrow; Through me they go to endless agony; Through me they go among the nations lost: Leave every hope, all ye that enter here!" The only hope of freedom for Mr. Burns lay in the limbs of the People! Anarchy afforded him the only chance of Justice. (3.) Did they who it is alleged made the attack on the Marshal, or they who it is said instigated them to the attack, do it from any wicked, unjust, or selfish motive? Nobody pretends it--Gentlemen, we had much to lose--ease, honor--for with many persons in Boston it is a disgrace to favor the unalienable Rights of man, as at Rome to read the Bible, or at Damascus to be a Christian--ease, honor, money, liberty--if this Court have its way,--nay, life itself; for one of the family which preserves the Union by kidnapping men, counts it a capital crime to rescue a victim from their hands, and Mr. Hallett, when only a democratic expectant of office, declared "if it only resists law and obstructs its officers ... it is treason ... and he who risks it must risk hanging for it." No, Gentlemen, I had much to lose by my words. I had nothing to gain. Nothing I mean but the satisfaction of doing my duty to Myself, my Brother, and my God. And tried by Judge Sprague's precept, "Obey both," that is nothing; or by Judge Curtis's "Standard of Morality" it is a crime; and according to his brother it is "Treason;" and according to, I know not how many ministers of commerce, it is "infidelity"--"treasonable, damnable doctrine." No, Gentlemen, no selfish motive could move me to such conduct. The voice of Duty was terribly clear: "Inasmuch as ye have done it unto the least of these my brethren, ye have done it unto me." Put all these things together, Gentlemen. Remember there is a duty of the strong to help the weak: that all men have a common interest in the common duty to keep the Eternal Law of Justice; remember we are all of us to appear one day before the Court which is of purer eyes than to love iniquity. Ask what says Conscience--what says God. Then decide as you must decide. The eyes of the nation are upon you. The Judges of this Honorable Court hold their office in Petty Serjeantry on condition of wresting the Laws and Constitution to the support of the fugitive slave bill, and of preventing, as far as possible, all noble thought which opposes the establishment of Despotism, now so rapidly encroaching upon our once Free Soil: they hold by this Petty Serjeantry--a menial service not mentioned in any book even of "Jocular Tenures." If you could find me guilty--it is not possible, only conceivable with a contradiction,--you would delight the Slave Power--Atchison, Cushing, Stringfellow, and their Northern and Southern crew--for to them I seem identified with New England Freedom of Speech. "Aha," they will neigh and snicker out, "Judge Curtis has got the North under his feet! Mr. Webster knew what he was about when putting him in place!" English is the only tongue in which Freedom can speak her political or religious word. Shall that tongue be silenced; tied in Faneuil Hall; torn out by a Slave-hunter? The Stamp Act only taxed commercial and legal documents; the fugitive slave bill makes our words misdemeanors. The Revenue Act did but lay a tax on tea, three-pence only on a pound: the Slave-hunters' act taxes our thoughts as a crime. The Boston Port Bill but closed our harbor, we could get in at Salem; but the Judge's Charge shuts up the mouth of all New England, not a word against man-hunting but is a "crime,"--the New Testament is full of "misdemeanors." Andros only took away the Charter of Massachusetts; Judge Curtis's "law" is a _quo warranto_ against Humanity itself. "Perfidious General Gage" took away the arms of Boston; Judge Curtis _charges_ upon our Soul; he would wring all religion out of you,--no "Standard of Morality" above the fugitive slave bill; you must not, even to God in your prayers, evince "an express liking" for the deliverance of an innocent man whom his family seek to transform to a beast of burthen and then sacrifice to the American Moloch. Decide according to your own Conscience, Gentlemen, not after mine. * * * * * Gentlemen of the Jury, I must bring this defence to a close. Already it is too long for your patience, though far too short for the mighty interest at stake, for it is the Freedom of a Nation which you are to decide upon. I have shown you the aim and purposes of the Slave Power--to make this vast Continent one huge Despotism, a House of Bondage for African Americans, a House of Bondage also for Saxon Americans. I have pointed out the course of Despotism in Monarchic England; you have seen how there the Tyrants directly made wicked laws, or when that resource failed, how they reached indirectly after their End, and appointed officers to pervert the law, to ruin the people. You remember how the King appointed base men as Attorneys and Judges, and how wickedly they used their position and their power, scorning alike the law of God and the welfare of Man. "The Judges in their itinerant Circuits," says an old historian,[226] "the more to enslave the people to obedience, being to speak of the king, would give him sacred titles as if their advancement to high places must necessarily be laid upon the foundation of the People's debasement." You have not forgotten Saunders, Kelyng, and Jeffreys and Scroggs; Sibthorpe and Mainwaring you will remember for ever,--denouncing "eternal damnation" on such as refused the illegal tax of Charles I. or evinced an express disapprobation of his tyranny. [Footnote 226: In 2 Kennett, 753.] Gentlemen, you recollect how the rights of the jury were broken down,--how jurors were threatened with trial for perjury, insulted, fined, and imprisoned, because they would be faithful to the Law and their Conscience. You remember how the tyrannical king clutched at the People's purse and their person too, and smote at all freedom of speech, while the purchased Judges were always ready, the tools of Despotism. But you know what it all came to--Justice could not enter upon the law through the doors of Westminster Hall; so she tried it at Naseby and Worcester and with her "Invincible Ironsides" took possession by means of pike and gun. Charles I. laid his guilty head on the block; James II. only escaped the same fate by timely flight. If Courts will not decree Justice, then Civil War will, for it must be done, and a battle becomes a "Crowning Mercy." Gentlemen, I have shown you what the Slave Power of America aims at,--a Despotism which is worse for this age than the Stuarts' tyranny for that time. You see its successive steps of encroachment. Behold what it has done within ten years. It has made Slavery perpetual in Florida; has annexed Texas, a Slave State as big as the kingdom of France; has fought the Mexican War, with Northern money, and spread bondage over Utah, New Mexico, and California; it has given Texas ten millions of Northern dollars to help Slavery withal; it has passed the fugitive slave bill and kidnapped men in the West, in the Middle States, and even in our own New England; it has given ten millions of dollars for a little strip of worthless land, the Mesilla valley, whereon to make a Slave Railroad and carry bondage from the Atlantic to the Pacific; it has repealed the Prohibition of Slavery, and spread the mildew of the South all over Kansas and Nebraska. Ask your capitalists, who have bought Missouri lands and railroads, how their stock looks just now; not only your Liberty but even their Money is in peril. You know the boast of Mr. Toombs. Gentlemen, you know what the United States Courts have done--with poisoned weapons they have struck deadly blows at Freedom. You know Sharkey and Grier and Kane. You recollect the conduct of Kidnappers' Courts at Milwaukie, Sandusky, Cincinnati, Philadelphia--in the Hall of Independence. But why need I wander so far? Alas! you know too well what has been done in Boston, our own Boston, the grave of Puritan piety. You remember the Union Meeting, Ellen Craft, Sims, chains around the Court House, the Judges crawling under, soldiers in the street, drunk, smiting at the citizens; you do not forget Anthony Burns, the Marshal's guard, the loaded cannon in place of Justice, soldiers again in the streets smiting at and wounding the citizens. You recollect all this--the 19th of April, 1851, Boston delivering an innocent man at Savannah to be a slave for ever, and that day scourged in his jail while the hirelings who enthralled him were feasted at their Inn;--Anniversary week last year--a Boston Judge of Probate, the appointed guardian of orphans, kidnapping a poor and friendless man! You cannot forget these things, no, never! You know who did all this: a single family--the Honorable Judge Curtis, with his kinsfolk and friends, himself most subtly active with all his force throughout this work. When Mr. Webster prostituted himself to the Slave Power this family went out and pimped for him in the streets; they paraded in the newspapers, at the Revere House, and in public letters; they beckoned and made signs at Faneuil Hall. That crime of Sodom brought Daniel Webster to his grave at Marshfield, a mighty warning not to despise the Law of the Infinite God; but that sin of Gomorrah, it put the Hon. Benj. R. Curtis on this Bench; gave him his judicial power to construct his "law," construct his "jury," to indict and try me. Try me! No, Gentlemen, it is you, your wives and your children, who are up for swift condemnation this day. Will you wait, will you add sin to sin, till God shall rain fire and brimstone on your heads, and a Dead Sea shall cover the place once so green and blossoming with American Liberty? Decide your own fate. When the Judges are false let the Juries be faithful, and we have "a crowning mercy" without cannon, and the cause of Justice is secure. For "when wicked men seem nearest to their hopes, the godly man is furthest from his fears." You know my "offence," Gentlemen. I have confessed more than the government could prove. You are the "Country:" the Nation by twelve Delegates is present here to-day. In the name of America, of mankind, you are to judge of the Law, the Fact, and the Application of the Law to the Fact. You are to decide whether you will spread Slavery and the Consequences of Slavery all over the North; whether Boston, New England, all the North, shall kidnap other Ellen Crafts, other Thomas Sims, other Anthony Burns,--whether Sharkey and Grier, and Kane and Curtis, shall be Tyrants over you--forbidding all Freedom of Speech: or whether Right and Justice, the Christian Religion, the natural service of the Infinite God shall bless our wide land with the numberless Beatitudes of Humanity. Should you command me to be fined and go to jail, I should take it very cheerfully, counting it more honor to be inside of a jail in the austere silence of my dungeon, rather than outside of it, with a faithless Jury, guilty of such treason to their Country and their God. But, forgive me! you cannot commit such a crime against Humanity. Pardon the monstrous figure of my speech,--it is only conceivable, not also possible. These Judges could do it--their speeches, their actions, that Charge, this Indictment, proves all that--but you cannot;--not you. You are the Representatives of the People, the Country, not idiotic in Conscience and the Affections. Gentlemen, I am a minister of Religion. It is my function to teach what is absolutely true and absolutely right. I am the servant of no sect,--how old soever, venerable and widely spread. I claim the same religious Rights with Luther and Calvin, with Budha and Mohammed; yes, with Moses and Jesus,--the unalienable Right to serve the God of Nature in my own way. I preach the Religion which belongs to Human Nature, as I understand it, which the Infinite God imperishably writes thereon,--Natural Piety, love of the infinitely perfect God, Natural Morality, the keeping of every law He has written on the body and in the soul of man, especially by loving and serving his creatures. Many wrong things I doubtless do, for which I must ask the forgiveness of mankind. But do you suppose I can keep the fugitive slave bill, obey these Judges, and kidnap my own Parishioners? It is no part of my "Christianity" to "send the mother that bore me into eternal bondage." Do you think I can suffer Commissioner Curtis and Commissioner Loring to steal my friends,--out of my meeting-house? Gentlemen, when God bids me do right and this Court bids me do wrong, I shall not pretend to "obey both." I am willing enough to suffer all that you will ever lay on me. But I will not do such a wrong, nor allow such wickedness to be done--so help me God! How could I teach Truth, Justice, Piety, if I stole men; if I allowed Saunders, Jeffreys, Scroggs, or Sharkey, Grier, Kane, or in one word, Curtis, to steal them? I love my Country, my kindred of Humanity; I love my God, Father and Mother of the white man and the black; and am I to suffer the Liberty of America to be trod under the hoof of Slaveholders, Slave-drivers; yes, of the judicial slaves of slaveholders' slave-drivers? I was neither born nor bred for that. I drew my first breath in a little town not far off, a poor little town where the farmers and mechanics first unsheathed that Revolutionary sword which, after eight years of hewing, clove asunder the Gordian knot that bound America to the British yoke. One raw morning in spring--it will be eighty years the 19th of this month--Hancock and Adams, the Moses and Aaron of that Great Deliverance, were both at Lexington; they also had "obstructed an officer" with brave words. British soldiers, a thousand strong, came to seize them and carry them over sea for trial, and so nip the bud of Freedom auspiciously opening in that early spring. The town militia came together before daylight "for training." A great, tall man, with a large head and a high, wide brow, their Captain,--one who "had seen service,"--marshalled them into line, numbering but seventy, and bad "every man load his piece with powder and ball." "I will order the first man shot that runs away," said he, when some faltered; "Don't fire unless fired upon, but if they want to have a war,--let it begin here." Gentlemen, you know what followed: those farmers and mechanics "fired the shot heard round the world." A little monument covers the bones of such as before had pledged their fortune and their sacred honor to the Freedom of America, and that day gave it also their lives. I was born in that little town, and bred up amid the memories of that day. When a boy my mother lifted me up, one Sunday, in her religious, patriotic arms, and held me while I read the first monumental line I ever saw:-- "SACRED TO LIBERTY AND THE RIGHTS OF MANKIND." Since then I have studied the memorial marbles of Greece and Rome in many an ancient town; nay, on Egyptian Obelisks have read what was written before the Eternal roused up Moses to lead Israel out of Egypt, but no chiselled stone has ever stirred me to such emotions as those rustic names of men who fell "IN THE SACRED CAUSE OF GOD AND THEIR COUNTRY." Gentlemen, the Spirit of Liberty, the Love of Justice, was early fanned into a flame in my boyish heart. That monument covers the bones of my own kinsfolk; it was their blood which reddened the long, green grass at Lexington. It is my own name which stands chiselled on that stone; the tall Captain who marshalled his fellow farmers and mechanics into stern array and spoke such brave and dangerous words as opened the War of American Independence,--the last to leave the field,--was my father's father. I learned to read out of his Bible, and with a musket he that day captured from the foe, I learned also another religious lesson, that "REBELLION TO TYRANTS IS OBEDIENCE TO GOD." I keep them both, "Sacred to Liberty and the Rights of Mankind," to use them both "In the Sacred Cause of God and my Country." Gentlemen of the Jury, and you my fellow-countrymen of the North, I leave the matter with you. Say "Guilty!" You cannot do it. "Not Guilty." I know you will, for you remember there is another Court, not of fugitive slave bill law, where we shall all be tried by the Justice of the Infinite God. Hearken to the last verdict, "INASMUCH AS YE HAVE DONE IT UNTO ONE OF THE LEAST OF THESE MY BRETHREN, YE HAVE DONE IT UNTO ME." END. ERRATA. Page 19, line 16 from top, instead of _rest_, read _government_. " 23 " 10 " " " " 1618, read 1215. " 76 " 2 " " " " _Aoncilia_, read _Ancilia_. " 78 " 3 " bottom, " " _not_, read _or_. " 84 " 11 " " " " _promoting_, read _perverting_. " 89 " 18 " " omit _his_, before _vengeance_. OTHER WORKS BY THE SAME AUTHOR. A DISCOURSE OF MATTERS PERTAINING TO RELIGION. 1 Vol. 12mo. New Edition will appear in December. $1.25 AN INTRODUCTION TO THE OLD TESTAMENT. From the German of De Wette. 2d edition. 2 Vols. 8vo. 3.75 CRITICAL AND MISCELLANEOUS WRITINGS. 1 Vol. 12mo. New Edition will soon appear. 1.25 OCCASIONAL SERMONS AND SPEECHES. 2 Vols. 12mo. 2.50 TEN SERMONS OF RELIGION. 1 Vol. 12mo. 1.00 SERMONS OF THEISM, ATHEISM, AND THE POPULAR THEOLOGY. 1 Vol. 12mo. 1.25 ADDITIONAL SERMONS AND SPEECHES. 2 Vols. 12mo. 2.50 PAMPHLETS. TWO SERMONS ON LEAVING THE OLD AND ENTERING THE NEW PLACE OF WORSHIP. (1852.) 20 DISCOURSE OF DANIEL WEBSTER. (1853.) Cloth. 50 A SERMON OF OLD AGE. (1854.) 15 THE NEW CRIME AGAINST HUMANITY. (1854.) 20 THE LAWS OF GOD AND THE STATUTES OF MAN. (1854.) 15 THE DANGERS WHICH THREATEN THE RIGHTS OF MAN IN AMERICA. (1854.) 20 THE MORAL DANGERS INCIDENT TO PROSPERITY. (1855.) 15 CONSEQUENCES OF AN IMMORAL PRINCIPLE. (1855.) 15 FUNCTION OF A MINISTER. (1855.) 20 TWO SERMONS IN PROCEEDINGS OF PROGRESSIVE FRIENDS. (1855.) 15 
5	----	All of the original Project Gutenberg Etexts from the 1970's were produced in ALL CAPS, no lower case. The computers we used then didn't have lower case at all. *** These original Project Gutenberg Etexts will be compiled into a file containing them all, in order to improve the content ratios of Etext to header material. *** The following edition of The Consitution of the United States of America has been based on many hours of study of a variety of editions, and will include certain variant spellings, punctuation, and captialization as we have been able to reasonable ascertain belonged to the orginal. In case of internal discrepancies in these matters, most or all have been left. In our orginal editions the letters were all CAPITALS, and we did not do anything about capitalization, consistent or otherwise, nor with most of the punctuation, since we had limited punctionation in those days. This document does NOT include the amendments, as the Bill of Rights was one of our earlier Project Gutenberg Etexts, and the others will be sent in a separate posting. *** We would ask that any Consitutional scholars would please take a minute, or longer, to send us a note concerning possible corrections. *** THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1787 We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Article 1 Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by law Direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the expiration of the second Year, of the second Class at the expiration of the fourth Year, and of the third Class at the expiration of the sixth Year, so that one third may be chosen every second Year; and if vacancies happen by Resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next meeting of the Legislature, which shall then fill such Vacancies. No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice-President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice-President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by law appoint a different Day. Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each house may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member. Each house shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that house shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and Post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dockyards, and other needful Buildings;--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States; and no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. ARTICLE 2 Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a Quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next session. Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE THREE Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States; --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE FOUR Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, But shall be delivered up on Claim of the Party to whom such Service or Labor may be due. Section 3. New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE FIVE The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate. ARTICLE SIX All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States ARTICLE SEVEN The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eighty seven and of the Independence of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our Names, Go. WASHINGTON-- Presid. and deputy from Virginia New Hampshire John Langdon Nicholas Gilman Massachusetts Nathaniel Gorham Rufus King Connecticut Wm. Saml. Johnson Roger Sherman New York Alexander Hamilton New Jersey Wil: Livingston David Brearley Wm. Paterson Jona: Dayton Pennsylvania B Franklin Thomas Mifflin Robt Morris Geo. Clymer Thos FitzSimons Jared Ingersoll James Wilson Gouv Morris Delaware Geo: Read Gunning Bedford jun John Dickinson Richard Bassett Jaco: Broom Maryland James Mchenry Dan of St Thos. Jenifer Danl Carroll Virginia John Blair-- James Madison Jr. North Carolina Wm. Blount Rich'd Dobbs Spaight Hu Williamson South Carolina J. Rutledge Charles Cotesworth Pinckney Charles Pinckney Pierce Butler Georgia William Few Abr Baldwin Attest: William Jackson, Secretary 
1404	----	THE FEDERALIST PAPERS By Alexander Hamilton, John Jay, and James Madison FEDERALIST No. 1 General Introduction For the Independent Journal. Saturday, October 27, 1787 HAMILTON To the People of the State of New York: AFTER an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution. And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth. I propose, in a series of papers, to discuss the following interesting particulars: THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY. In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.(1) This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address. PUBLIUS 1. The same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new Constitution. FEDERALIST No. 2 Concerning Dangers from Foreign Force and Influence For the Independent Journal. Wednesday, October 31, 1787 JAY To the People of the State of New York: WHEN the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident. Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. It has often given me pleasure to observe that independent America was not composed of detached and distant territories, but that one connected, fertile, wide-spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities. With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer. This intelligent people perceived and regretted these defects. Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being persuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at Philadelphia, to take that important subject under consideration. This convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils. Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet let it be remembered that it is neither recommended to BLIND approbation, nor to BLIND reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of America to form the memorable Congress of 1774. That body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. Not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to persuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so. They considered that the Congress was composed of many wise and experienced men. That, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. That, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy. That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: "FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS." PUBLIUS FEDERALIST No. 3 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. Saturday, November 3, 1787 JAY To the People of the State of New York: IT IS not a new observation that the people of any country (if, like the Americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. That consideration naturally tends to create great respect for the high opinion which the people of America have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes. The more attentively I consider and investigate the reasons which appear to have given birth to this opinion, the more I become convinced that they are cogent and conclusive. Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first. The SAFETY of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively. At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising from domestic causes. As the former of these comes first in order, it is proper it should be the first discussed. Let us therefore proceed to examine whether the people are not right in their opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against HOSTILITIES from abroad. The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether REAL or PRETENDED, which PROVOKE or INVITE them. If this remark be just, it becomes useful to inquire whether so many JUST causes of war are likely to be given by UNITED AMERICA as by DISUNITED America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations. The JUST causes of war, for the most part, arise either from violation of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us. She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies. Because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more SAFE with respect to us. Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,--whereas, adjudications on the same points and questions, in thirteen States, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. Because the prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice; but those temptations, not reaching the other States, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this reasoning. Because, even if the governing party in a State should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. But the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford JUST causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the SAFETY of the people. As to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. Because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two States than of the Union. Not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants. The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. But not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. Besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or confederacy of little consideration or power. In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded that they should send their Doge, or chief magistrate, accompanied by four of their senators, to FRANCE, to ask his pardon and receive his terms. They were obliged to submit to it for the sake of peace. Would he on any occasion either have demanded or have received the like humiliation from Spain, or Britain, or any other POWERFUL nation? PUBLIUS FEDERALIST No. 4 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. Wednesday, November 7, 1787 JAY To the People of the State of New York: MY LAST paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by JUST causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the State governments or the proposed little confederacies. But the safety of the people of America against dangers from FOREIGN force depends not only on their forbearing to give JUST causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to INVITE hostility or insult; for it need not be observed that there are PRETENDED as well as just causes of war. It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances. With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. With them and with most other European nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns. Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure. The people of America are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in SUCH A SITUATION as, instead of INVITING war, will tend to repress and discourage it. That situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country. As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would? We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government, had not so regulated the navigation of Britain as to make it a nursery for seamen--if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. Let England have its navigation and fleet--let Scotland have its navigation and fleet--let Wales have its navigation and fleet--let Ireland have its navigation and fleet--let those four of the constituent parts of the British empire be be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments--what armies could they raise and pay--what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what proportion shall aids of men and money be afforded? Who shall command the allied armies, and from which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. PUBLIUS FEDERALIST No. 5 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. Saturday, November 10, 1787 JAY To the People of the State of New York: QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the UNION then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: "An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be ENABLED TO RESIST ALL ITS ENEMIES." "We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only EFFECTUAL way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, USE THEIR UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION." It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. This subject is copious and cannot easily be exhausted. The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being "joined in affection" and free from all apprehension of different "interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other BORDERING nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the NORTHERN HIVE would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH OTHER. From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies. When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be DISTINCT NATIONS. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. Hence it might and probably would happen that the foreign nation with whom the SOUTHERN confederacy might be at war would be the one with whom the NORTHERN confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. Let candid men judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. PUBLIUS FEDERALIST No. 6 Concerning Dangers from Dissensions Between the States For the Independent Journal. Wednesday, November 14, 1787 HAMILTON To the People of the State of New York: THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind--those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions. These have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation. A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. The celebrated Pericles, in compliance with the resentment of a prostitute,(1) at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the SAMMIANS. The same man, stimulated by private pique against the MEGARENSIANS,(2) another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary Phidias,(3) or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity,(4) or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the PELOPONNESIAN war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth. The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity to aspire to the triple crown,(5) entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the dupe. The influence which the bigotry of one female,(6) the petulance of another,(7) and the cabals of a third,(8) had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known. To multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. Perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts would have been plunged into a civil war. But notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? If this be their true interest, have they in fact pursued it? Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? Have republics in practice been less addicted to war than monarchies? Are not the former administered by MEN as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. Sparta was little better than a wellregulated camp; and Rome was never sated of carnage and conquest. Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. Hannibal had carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of the commonwealth. Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other Italian states, Pope Julius II. found means to accomplish that formidable league,(9) which gave a deadly blow to the power and pride of this haughty republic. The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were among the most persevering and most implacable of the opponents of Louis XIV. In the government of Britain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people. There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the State. In that memorable struggle for superiority between the rival houses of AUSTRIA and BOURBON, which so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice, of a favorite leader,(10) protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. The wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,--the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation, and sometimes even the more culpable desire of sharing in the commerce of other nations without their consent. The last war but between Britain and Spain sprang from the attempts of the British merchants to prosecute an illicit trade with the Spanish main. These unjustifiable practices on their part produced severity on the part of the Spaniards toward the subjects of Great Britain which were not more justifiable, because they exceeded the bounds of a just retaliation and were chargeable with inhumanity and cruelty. Many of the English who were taken on the Spanish coast were sent to dig in the mines of Potosi; and by the usual progress of a spirit of resentment, the innocent were, after a while, confounded with the guilty in indiscriminate punishment. The complaints of the merchants kindled a violent flame throughout the nation, which soon after broke out in the House of Commons, and was communicated from that body to the ministry. Letters of reprisal were granted, and a war ensued, which in its consequences overthrew all the alliances that but twenty years before had been formed with sanguine expectations of the most beneficial fruits. From this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? Have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? Let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the State of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts, declare--! So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect: "NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors."(11) This passage, at the same time, points out the EVIL and suggests the REMEDY. PUBLIUS 1. Aspasia, vide "Plutarch's Life of Pericles." 2. Ibid. 3. Ibid. 4. Ibid. Phidias was supposed to have stolen some public gold, with the connivance of Pericles, for the embellishment of the statue of Minerva. 5. Worn by the popes. 6. Madame de Maintenon. 7. Duchess of Marlborough. 8. Madame de Pompadour. 9. The League of Cambray, comprehending the Emperor, the King of France, the King of Aragon, and most of the Italian princes and states. 10. The Duke of Marlborough. 11. Vide "Principes des Negociations" par l'Abbé de Mably. FEDERALIST No. 7 The Same Subject Continued (Concerning Dangers from Dissensions Between the States) For the Independent Journal. Thursday, November 15, 1787 HAMILTON To the People of the State of New York: IT IS sometimes asked, with an air of seeming triumph, what inducements could the States have, if disunited, to make war upon each other? It would be a full answer to this question to say--precisely the same inducements which have, at different times, deluged in blood all the nations in the world. But, unfortunately for us, the question admits of a more particular answer. There are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. Territorial disputes have at all times been found one of the most fertile sources of hostility among nations. Perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries of the United States. There still are discordant and undecided claims between several of them, and the dissolution of the Union would lay a foundation for similar claims between them all. It is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the Revolution, and which usually went under the name of crown lands. The States within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the Union; especially as to all that part of the Western territory which, either by actual possession, or through the submission of the Indian proprietors, was subjected to the jurisdiction of the king of Great Britain, till it was relinquished in the treaty of peace. This, it has been said, was at all events an acquisition to the Confederacy by compact with a foreign power. It has been the prudent policy of Congress to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole. This has been so far accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable termination of the dispute. A dismemberment of the Confederacy, however, would revive this dispute, and would create others on the same subject. At present, a large part of the vacant Western territory is, by cession at least, if not by any anterior right, the common property of the Union. If that were at an end, the States which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a proportion, by right of representation. Their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. Different principles would be set up by different States for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their disadvantage. Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State and the district of Vermont, can vouch the opposition we experienced, as well from States not interested as from those which were interested in the claim; and can attest the danger to which the peace of the Confederacy might have been exposed, had this State attempted to assert its rights by force. Two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring States, who had obtained grants of lands under the actual government of that district. Even the States which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, till alarmed by the appearance of a connection between Canada and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye the perspective of our growing greatness. In a review of these transactions we may trace some of the causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited. The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative. The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. How would it be possible to agree upon a rule of apportionment satisfactory to all? There is scarcely any that can be proposed which is entirely free from real objections. These, as usual, would be exaggerated by the adverse interest of the parties. There are even dissimilar views among the States as to the general principle of discharging the public debt. Some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the State in the total amount of the national debt, would be strenuous for some equitable and effective provision. The procrastinations of the former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. The citizens of the States interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention. Suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. Still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the burden. The others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. Their refusal would be too plausible a pretext to the complaining States to withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with their engagements would be a ground of bitter discussion and altercation. If even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the States would result from a diversity of other causes--the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. Delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money. Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of PARCHMENT, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera(1) must be the motto of every nation that either hates or fears us.(2) PUBLIUS 1. Divide and command. 2. In order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week--on Tuesday in the New York Packet and on Thursday in the Daily Advertiser. FEDERALIST No. 8 The Consequences of Hostilities Between the States From the New York Packet. Tuesday, November 20, 1787. HAMILTON To the People of the State of New York: ASSUMING it therefore as an established truth that the several States, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. War between the States, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. The disciplined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. The art of fortification has contributed to the same ends. The nations of Europe are encircled with chains of fortified places, which mutually obstruct invasion. Campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. Formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. The history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. In this country the scene would be altogether reversed. The jealousy of military establishments would postpone them as long as possible. The want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. The populous States would, with little difficulty, overrun their less populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, therefore, would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits. This picture is not too highly wrought; though, I confess, it would not long remain a just one. Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it.(1) Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority. The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. These are not vague inferences drawn from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece? Different answers, equally satisfactory, may be given to this question. The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility. There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have no good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an overmatch for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. In a country in the predicament last described, the contrary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of Europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. It is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. If we are wise enough to preserve the Union we may for ages enjoy an advantage similar to that of an insulated situation. Europe is at a great distance from us. Her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe--our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable. PUBLIUS 1. This objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been taken; and a much better one than is to be found in any constitution that has been heretofore framed in America, most of which contain no guard at all on this subject. FEDERALIST No. 9 The Union as a Safeguard Against Domestic Faction and Insurrection For the Independent Journal. Wednesday, November 21, 1787 HAMILTON To the People of the State of New York: A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. They have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors. But it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in its application to a single State, which shall be attended to in another place. The utility of a Confederacy, as well to suppress faction and to guard the internal tranquillity of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America. Referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested. So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a confederate republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "It is very probable," (says he(1)) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC." "This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body." "A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences." "If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation." "Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty." "As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection. A distinction, more subtle than accurate, has been raised between a CONFEDERACY and a CONSOLIDATION of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. The definition of a CONFEDERATE REPUBLIC seems simply to be "an assemblage of societies," or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government. In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest were entitled to THREE votes in the COMMON COUNCIL, those of the middle class to TWO, and the smallest to ONE. The COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says: "Were I to give a model of an excellent Confederate Republic, it would be that of Lycia." Thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. PUBLIUS 1. "Spirit of Laws," vol. i., book ix., chap. i. FEDERALIST No. 10 The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection) From the Daily Advertiser. Thursday, November 22, 1787. MADISON To the People of the State of New York: AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures. The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage. The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State. In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists. PUBLIUS FEDERALIST No. 11 The Utility of the Union in Respect to Commercial Relations and a Navy For the Independent Journal. Saturday, November 24, 1787 HAMILTON To the People of the State of New York: THE importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other. There are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of America, has already excited uneasy sensations in several of the maritime powers of Europe. They seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. Those of them which have colonies in America look forward to what this country is capable of becoming, with painful solicitude. They foresee the dangers that may threaten their American dominions from the neighborhood of States, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. Impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. Did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign countries to bid against each other, for the privileges of our markets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? When these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. It has been said that prohibitions on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction? Would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of British commodities in our markets, and by transferring to other hands the management of this interesting branch of the British commerce? A mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to Britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the American trade, and with the importunities of the West India islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. Such a point gained from the British government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade. A further resource for influencing the conduct of European nations toward us, in this respect, would arise from the establishment of a federal navy. There can be no doubt that the continuance of the Union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be more peculiarly the case in relation to operations in the West Indies. A few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. Our position is, in this respect, a most commanding one. And if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the West Indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. A price would be set not only upon our friendship, but upon our neutrality. By a steady adherence to the Union we may hope, erelong, to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate. But in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. In a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral. Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. But in a state of disunion, these combinations might exist and might operate with success. It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequaled spirit of enterprise, which signalizes the genius of the American merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. There are rights of great moment to the trade of America which are rights of the Union--I allude to the fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the Confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. The disposition of Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. What more natural than that they should be disposed to exclude from the lists such dangerous competitors? This branch of trade ought not to be considered as a partial benefit. All the navigating States may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several States, will become, a universal resource. To the establishment of a navy, it must be indispensable. To this great national object, a NAVY, union will contribute in various ways. Every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. It happens, indeed, that different portions of confederated America possess each some peculiar advantage for this essential establishment. The more southern States furnish in greater abundance certain kinds of naval stores--tar, pitch, and turpentine. Their wood for the construction of ships is also of a more solid and lasting texture. The difference in the duration of the ships of which the navy might be composed, if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength or of national economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctuations of markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions. It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of commercial, as well as political, interests, can only result from a unity of government. There are other points of view in which this subject might be placed, of a striking and animating kind. But they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. The world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America--that even dogs cease to bark after having breathed awhile in our atmosphere.(1) Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world! PUBLIUS "Recherches philosophiques sur les Americains." FEDERALIST No. 12 The Utility of the Union In Respect to Revenue From the New York Packet. Tuesday, November 27, 1787. HAMILTON To the People of the State of New York: THE effects of Union upon the commercial prosperity of the States have been sufficiently delineated. Its tendency to promote the interests of revenue will be the subject of our present inquiry. The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. By multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,--all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. The often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. It has been found in various countries that, in proportion as commerce has flourished, land has risen in value. And how could it have happened otherwise? Could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state--could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? It is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. The hereditary dominions of the Emperor of Germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. He has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue. There are other points of view, in which its influence will appear more immediate and decisive. It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description. In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption. If these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious doubt, that this state of things must rest on the basis of a general Union. As far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. As far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. The relative situation of these States; the number of rivers with which they are intersected, and of bays that wash their shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse;--all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our governments, for a long time to come, would not permit those rigorous precautions by which the European nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice. In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Mr. Neckar computes the number of these patrols at upwards of twenty thousand. This shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the States should be placed in a situation, with respect to each other, resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. If, on the contrary, there be but one government pervading all the States, there will be, as to the principal part of our commerce, but ONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. They would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. An ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. A few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government having the same interest to provide against violations everywhere, the co-operation of its measures in each State would have a powerful tendency to render them effectual. Here also we should preserve by Union, an advantage which nature holds out to us, and which would be relinquished by separation. The United States lie at a great distance from Europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. The passage from them to us, in a few hours, or in a single night, as between the coasts of France and Britain, and of other neighboring nations, would be impracticable. This is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one State, through the medium of another, would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. It is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the States separately, or to any partial confederacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent., and in Britain they exceed this proportion.(1) There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits. What will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. In populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the State; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. As the necessities of the State, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. And as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. But public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. PUBLIUS 1. If my memory be right they amount to twenty per cent. FEDERALIST No. 13 Advantage of the Union in Respect to Economy in Government For the Independent Journal. Wednesday, November 28, 1787 HAMILTON To the People of the State of New York: As CONNECTED with the subject of revenue, we may with propriety consider that of economy. The money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. If the States are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. The entire separation of the States into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four Northern, another of the four Middle, and a third of the five Southern States. There is little probability that there would be a greater number. According to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. When the dimensions of a State attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. This idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of Britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. The supposition that each confederacy into which the States would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. The more Southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State. Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. PUBLIUS FEDERALIST No. 14 Objections to the Proposed Constitution From Extent of Territory Answered From the New York Packet. Friday, November 30, 1787. MADISON To the People of the State of New York: WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region. To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory. Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress. That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union. Favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory. In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task. Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete. A fourth and still more important consideration is, that as almost every State will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout. I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow citizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide. PUBLIUS FEDERALIST No. 15 The Insufficiency of the Present Confederation to Preserve the Union For the Independent Journal. Saturday, December 1, 1787 HAMILTON To the People of the State of New York. IN THE course of the preceding papers, I have endeavored, my fellow citizens, to place before you, in a clear and convincing light, the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present Confederation to the preservation of the Union." It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union. We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government.(1) Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed. Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it. Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric. The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option. It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens,--the only proper objects of government. Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity. In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature. If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. The same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits. In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed; the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government. Things did not come to this desperate extremity at once. The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked with us in the same political voyage? Why should we consent to bear more than our proper share of the common burden? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. PUBLIUS 1. "I mean for the Union." FEDERALIST No. 16 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) From the New York Packet. Tuesday, December 4, 1787. HAMILTON To the People of the State of New York: THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty. This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union. This may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. Whoever considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. The plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. PUBLIUS FEDERALIST No. 17 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. Wednesday, December 5, 1787 HAMILTON To the People of the State of New York: AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government. But let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several States, would control the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed. It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter. This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation. The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,--I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. The reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of INFERIOR vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. Each principal vassal was a kind of sovereign, within his particular demesnes. The consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy. When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. But in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. It will be well if they are not able to counteract its legitimate and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in the CONCENTRATION of large portions of the strength of the community into particular DEPOSITORIES, in one case at the disposal of individuals, in the other case at the disposal of political bodies. A concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing papers. PUBLIUS FEDERALIST No. 18 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the New York Packet. Friday, December 7, 1787 MADISON, with HAMILTON To the People of the State of New York: AMONG the confederacies of antiquity, the most considerable was that of the Grecian republics, associated under the Amphictyonic council. From the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present Confederation of the American States. The members retained the character of independent and sovereign states, and had equal votes in the federal council. This council had a general authority to propose and resolve whatever it judged necessary for the common welfare of Greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. The Amphictyons were the guardians of religion, and of the immense riches belonging to the temple of Delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. As a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In several material instances, they exceed the powers enumerated in the articles of confederation. The Amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. Very different, nevertheless, was the experiment from the theory. The powers, like those of the present Congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction of the confederacy. The more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece seventy-three years. The Lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of Leuctra, the Thebans had their turn of domination. It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage. After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. The Athenians, finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude. Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the Persian arms, to establish such a reformation. Instead of this obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war; which itself ended in the ruin and slavery of the Athenians who had begun it. As a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, refused to submit to the decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphictyons, and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of Macedon, who had secretly fostered the contest. Philip gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the Amphictyonic council; and by his arts and his arms, made himself master of the confederacy. Such were the consequences of the fallacious principle on which this interesting establishment was founded. Had Greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of Macedon; and might have proved a barrier to the vast projects of Rome. The Achaean league, as it is called, was another society of Grecian republics, which supplies us with valuable instruction. The Union here was far more intimate, and its organization much wiser, than in the preceding instance. It will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. The cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. According to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred. It appears that the cities had all the same laws and customs, the same weights and measures, and the same money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is said only that the cities were in a manner compelled to receive the same laws and usages. When Lacedaemon was brought into the league by Philopoemen, it was attended with an abolition of the institutions and laws of Lycurgus, and an adoption of those of the Achaeans. The Amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. This circumstance alone proves a very material difference in the genius of the two systems. It is much to be regretted that such imperfect monuments remain of this curious political fabric. Could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising SINGLY all the prerogatives of sovereignty. The Abbe Mably, in his observations on Greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY. We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. The contrary is sufficiently displayed in the vicissitudes and fate of the republic. Whilst the Amphictyonic confederacy remained, that of the Achaeans, which comprehended the less important cities only, made little figure on the theatre of Greece. When the former became a victim to Macedon, the latter was spared by the policy of Philip and Alexander. Under the successors of these princes, however, a different policy prevailed. The arts of division were practiced among the Achaeans. Each city was seduced into a separate interest; the union was dissolved. Some of the cities fell under the tyranny of Macedonian garrisons; others under that of usurpers springing out of their own confusions. Shame and oppression erelong awaken their love of liberty. A few cities reunited. Their example was followed by others, as opportunities were found of cutting off their tyrants. The league soon embraced almost the whole Peloponnesus. Macedon saw its progress; but was hindered by internal dissensions from stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in Sparta and Athens, of the rising glory of the Achaeans, threw a fatal damp on the enterprise. The dread of the Macedonian power induced the league to court the alliance of the Kings of Egypt and Syria, who, as successors of Alexander, were rivals of the king of Macedon. This policy was defeated by Cleomenes, king of Sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the Achaeans, and who, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of their engagements with the league. The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of supplicating the aid of Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. A Macedonian army quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. All that their most abject compliances could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, though weakened by internal dissensions and by the revolt of Messene, one of its members, being joined by the AEtolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among it members. These the Romans fostered. Callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. The more effectually to nourish discord and disorder the Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty(1) throughout Greece. With the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. By these arts this union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is groaning at this hour. I have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. PUBLIUS 1. This was but another name more specious for the independence of the members on the federal head. FEDERALIST No. 19 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. Saturday, December 8, 1787 MADISON, with HAMILTON To the People of the State of New York: THE examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. There are existing institutions, founded on a similar principle, which merit particular consideration. The first which presents itself is the Germanic body. In the early ages of Christianity, Germany was occupied by seven distinct nations, who had no common chief. The Franks, one of the number, having conquered the Gauls, established the kingdom which has taken its name from them. In the ninth century Charlemagne, its warlike monarch, carried his victorious arms in every direction; and Germany became a part of his vast dominions. On the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. Charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. But the principal vassals, whose fiefs had become hereditary, and who composed the national diets which Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. The force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. The most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. The imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the Suabian, and the accession of the first emperor of the Austrian lines. In the eleventh century the emperors enjoyed full sovereignty: In the fifteenth they had little more than the symbols and decorations of power. Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic empire. Its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. The diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions. The members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. The prerogatives of the emperor are numerous. The most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. In certain cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe. From such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general imbecility, confusion, and misery. In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of Saxony. The late king of Prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. Controversies and wars among the members themselves have been so common, that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and Sweden, with the other half, on the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution. If the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. The small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury. The impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. This experiment has only served to demonstrate more fully the radical vice of the constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy. We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In Donawerth, a free and imperial city of the circle of Suabia, the Abbe de St. Croix enjoyed certain immunities which had been reserved to him. In the exercise of these, on some public occasions, outrages were committed on him by the people of the city. The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory,(1) he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. It may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? The answer is obvious: The weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and hereditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe;--these causes support a feeble and precarious Union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. Foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness. If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly be taken notice of. Nor could any proof more striking be given of the calamities flowing from such institutions. Equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories. The connection among the Swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions. They have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. They are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accommodating disputes among the cantons. The provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their treaty of 1683, with Victor Amadeus of Savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. The controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. That separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France. PUBLIUS 1. Pfeffel, "Nouvel Abrég. Chronol. de l'Hist., etc., d'Allemagne," says the pretext was to indemnify himself for the expense of the expedition. FEDERALIST No. 20 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) From the New York Packet. Tuesday, December 11, 1787. MADISON, with HAMILTON To the People of the State of New York: THE United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. The union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. In all important cases, not only the provinces but the cities must be unanimous. The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. They hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure. The States-General have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. The provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of Europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. As stadtholder of the union, he has, however, considerable prerogatives. In his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts. In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns. In his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them. His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men. Such is the nature of the celebrated Belgic confederacy, as delineated on parchment. What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution. The union of Utrecht, says another respectable writer, reposes an authority in the States-General, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory. The same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota. In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. The great wealth and influence of the province of Holland enable her to effect both these purposes. It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confederacy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense. Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious. In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. Notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "Under such a government," says the Abbe Mably, "the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder." It is remarked by Sir William Temple, "that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy. The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness. A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed. This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY. PUBLIUS FEDERALIST No. 21 Other Defects of the Present Confederation For the Independent Journal. Wednesday, December 12, 1787 HAMILTON To the People of the State of New York: HAVING in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled." There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world. The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York? The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community. The principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. If the like parallel were to be run between several of the American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. The position may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King's County bears a much greater proportion to that of Montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion! The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. The consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions. There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four." If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populousness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. PUBLIUS FEDERALIST No. 22 The Same Subject Continued (Other Defects of the Present Confederation) From the New York Packet. Friday, December 14, 1787. HAMILTON To the People of the State of New York: IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the Union. The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency.(1) Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the German empire(2) is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. The power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure. This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to regret the want of this hope, when we consider how little prospect there is, that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among the members. The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America;(3) and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people;(4) and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes. But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy. It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled. A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert. It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. PUBLIUS 1. This, as nearly as I can recollect, was the sense of his speech on introducing the last bill. 2. Encyclopedia, article "Empire." 3. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of the States, but they do not contain one third of the people. 4. Add New York and Connecticut to the foregoing seven, and they will be less than a majority. FEDERALIST No. 23 The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union From the New York Packet. Tuesday, December 18, 1787. HAMILTON To the People of the State of New York: THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived. This inquiry will naturally divide itself into three branches--the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head. The principal purposes to be answered by union are these--the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries. The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained. Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES. Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources were by them judged requisite to the "common defense and general welfare." It was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head. The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, I imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments. If the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between the citizens of the same State the proper department of the local governments? These must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. Not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. Who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the WHOLE, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the States, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? Is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the State governments the EFFECTIVE powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a system? And will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? Have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished? Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and I flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy. PUBLIUS FEDERALIST No. 24 The Powers Necessary to the Common Defense Further Considered For the Independent Journal. Wednesday, December 19, 1787 HAMILTON To the People of the State of New York: TO THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations. It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietary of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest. A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor. If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that TWO ONLY of them(1) contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence. Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings. But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy. If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself. PUBLIUS 1 This statement of the matter is taken from the printed collection of State constitutions. Pennsylvania and North Carolina are the two which contain the interdiction in these words: "As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up." This is, in truth, rather a CAUTION than a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland have, in each of their bills of rights, a clause to this effect: "Standing armies are dangerous to liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE"; which is a formal admission of the authority of the Legislature. New York has no bills of rights, and her constitution says not a word about the matter. No bills of rights appear annexed to the constitutions of the other States, except the foregoing, and their constitutions are equally silent. I am told, however that one or two States have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect. FEDERALIST No. 25 The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered) From the New York Packet. Friday, December 21, 1787. HAMILTON To the People of the State of New York: IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some States, dangerous to all, and baneful to the Confederacy. The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed. New York is of this class. Upon the plan of separate provisions, New York would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. This would neither be equitable as it respected New York nor safe as it respected the other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority. Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to KEEPING THEM UP in a season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated "keeping them up," contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation? Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which occasioned their being raised continues? This would be to admit that they might be kept up IN TIME OF PEACE, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the continuance of the danger? This must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision. The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. Should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project. If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation. Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice. All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the nominal title of vice-admiral. This instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable. PUBLIUS FEDERALIST No. 26 The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered. For the Independent Journal. Saturday, December 22, 1788 HAMILTON To the People of the State of New York: IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. The opponents of the proposed Constitution combat, in this respect, the general decision of America; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. As if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. It may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. But a danger of this kind is not to be apprehended. The citizens of America have too much discernment to be argued into anarchy. And I am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community. It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these States have in general sprung. In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law." In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. The attempts of two of the States to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. Even in some of the States, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. Accordingly, in some of these constitutions, and among others, in that of this State of New York, which has been justly celebrated, both in Europe and America, as one of the best of the forms of government established in this country, there is a total silence upon the subject. It is remarkable, that even in the two States which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. It is not said, that standing armies SHALL NOT BE kept up, but that they OUGHT NOT to be kept up, in time of peace. This ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe. Can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the State? Let the fact already mentioned, with respect to Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. The former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation. The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent. Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person. If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. It would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamities for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense. But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable. PUBLIUS FEDERALIST No. 27 The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered) From the New York Packet. Tuesday, December 25, 1787. HAMILTON To the People of the State of New York: IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. This, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. Waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. Unless we presume at the same time that the powers of the general government will be worse administered than those of the State government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. It must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. These can only be judged of by general principles and maxims. Various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the State legislatures which are select bodies of men, and which are to appoint the members of the national Senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. Several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members. The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member. I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion. One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence. The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws.(1) Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence. If we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. But though the adversaries of the proposed Constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, I would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct? PUBLIUS 1. The sophistry which has been employed to show that this will tend to the destruction of the State governments, will, in its will, in its proper place, be fully detected. FEDERALIST No. 28 The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered) For the Independent Journal. Wednesday, December 26, 1787 HAMILTON To the People of the State of New York: THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support. If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics? Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States? Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the States, or different governments for different parcels of them, or even if there should be an entire separation of the States, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions. Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society.(1) If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty. The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive. We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning. PUBLIUS 1. Its full efficacy will be examined hereafter. FEDERALIST No. 29 Concerning the Militia From the New York Packet. Wednesday, January 9, 1788 HAMILTON To the People of the State of New York: THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy. It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and conviction? By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse: "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee. There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes-- "Gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d'ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths? If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy. PUBLIUS FEDERALIST No. 30 Concerning the General Power of Taxation From the New York Packet. Friday, December 28, 1787. HAMILTON To the People of the State of New York: IT HAS been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. But these are not the only objects to which the jurisdiction of the Union, in respect to revenue, must necessarily be empowered to extend. It must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. The conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another. Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish. In the Ottoman or Turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. The consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. In America, from a like cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to annihilation. Who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require? The present Confederation, feeble as it is intended to repose in the United States, an unlimited power of providing for the pecuniary wants of the Union. But proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. Congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the United States; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the States. These have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. But though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of Union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the Confederacy should remain dependent on the intermediate agency of its members. What the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. It is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies. What remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? What substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury. The more intelligent adversaries of the new Constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call INTERNAL and EXTERNAL taxation. The former they would reserve to the State governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. This distinction, however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the Union? Taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. Its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. I believe it may be regarded as a position warranted by the history of mankind, that, IN THE USUAL PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES. To say that deficiencies may be provided for by requisitions upon the States, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. Those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. Its inevitable tendency, whenever it is brought into activity, must be to enfeeble the Union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. Can it be expected that the deficiencies would be better supplied in this mode than the total wants of the Union have heretofore been supplied in the same mode? It ought to be recollected that if less will be required from the States, they will have proportionably less means to answer the demand. If the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good? Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. We will presume, for argument's sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union. Thus circumstanced, a war breaks out. What would be the probable conduct of the government in such an emergency? Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the State? It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their conditions. They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums. It may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the Union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans. The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. Foreigners, as well as the citizens of America, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice. Reflections of this kind may have trifling weight with men who hope to see realized in America the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. Such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it. PUBLIUS FEDERALIST No. 31 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Tuesday, January 1, 1788. HAMILTON To the People of the State of New York: IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. Of this nature are the maxims in geometry, that "the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. And there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible. The objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. The INFINITE DIVISIBILITY of matter, or, in other words, the INFINITE divisibility of a FINITE thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled. But in the sciences of morals and politics, men are found far less tractable. To a certain degree, it is right and useful that this should be the case. Caution and investigation are a necessary armor against error and imposition. But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. Though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. The obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. How else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the Union, should have to encounter any adversaries among men of discernment? Though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. They are in substance as follows: A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people. As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies. As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes. Did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. But we find, in fact, that the antagonists of the proposed Constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. It may therefore be satisfactory to analyze the arguments with which they combat it. Those of them which have been most labored with that view, seem in substance to amount to this: "It is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. Revenue is as requisite to the purposes of the local administrations as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. It is, therefore, as necessary that the State governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the Union. But an indefinite power of taxation in the LATTER might, and probably would in time, deprive the FORMER of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments." This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. It is only in the latter light that it can be admitted to have any pretensions to fairness. The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty. In what does our security consist against usurpation from that quarter? Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded. It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. But it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments. Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States. PUBLIUS FEDERALIST No. 32 The Same Subject Continued (Concerning the General Power of Taxation) From The Independent Journal. Wednesday, January 2, 1788. HAMILTON To the People of the State of New York: ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution. An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the POLICY of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise "EXCLUSIVE LEGISLATION" over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress "to lay and collect taxes, duties, imposts and excises"; and the second clause of the tenth section of the same article declares that, "NO STATE SHALL, without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws." Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the DUTIES ON IMPORTS. This answers to the second case. The third will be found in that clause which declares that Congress shall have power "to establish an UNIFORM RULE of naturalization throughout the United States." This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE. A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power EXCLUSIVE in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them ABSOLUTELY from the imposition of taxes of the former kind, and to leave them at liberty to lay others SUBJECT TO THE CONTROL of the national legislature. The restraining or prohibitory clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, WITH THE CONSENT of the national legislature, might tax imports and exports; and that they might tax every other article, UNLESS CONTROLLED by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind. As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty. The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary. PUBLIUS FEDERALIST No. 33 The Same Subject Continued (Concerning the General Power of Taxation) From The Independent Journal. Wednesday, January 2, 1788. HAMILTON To the People of the State of New York: THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding." These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws? This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union. PUBLIUS FEDERALIST No. 34 The Same Subject Continued (Concerning the General Power of Taxation) From The Independent Journal. Saturday, January 5, 1788. HAMILTON To the People of the State of New York: I FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. That the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the State governments to provide. To argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. However proper such reasonings might be to show that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to ANNUL or REPEAL the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness. In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within A VERY NARROW COMPASS; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort. To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a State provision. We shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic. Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? Let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the conclusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense. In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. But let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds. In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in PROPORTION to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the MEANS and the END; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose. The preceding train of observation will justify the position which has been elsewhere laid down, that "A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union." Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration. PUBLIUS FEDERALIST No. 35 The Same Subject Continued (Concerning the General Power of Taxation) For the Independent Journal. Saturday, January 5, 1788 HAMILTON To the People of the State of New York: BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State. Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale. The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts. So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections. One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries. The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community. With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society? If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. PUBLIUS FEDERALIST No. 36 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Tuesday, January 8, 1788. HAMILTON To the People of the State of New York: WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive. The subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representatives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may distinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States. The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land taxes are commonly laid in one of two modes, either by ACTUAL valuations, permanent or periodical, or by OCCASIONAL assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. All that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature? The attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan. But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government. Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that "all duties, imposts, and excises shall be UNIFORM throughout the United States." It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part. As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. As neither can CONTROL the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an IMMEDIATE common interest, we may safely count upon its operation. When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource. Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. As to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan. As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth. As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the Union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression! As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States(1) which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security. (I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries upon which we shall next enter.)(E1) (I have now gone through the examination of those powers proposed to be conferred upon the federal government which relate more peculiarly to its energy, and to its efficiency for answering the great and primary objects of union. There are others which, though omitted here, will, in order to render the view of the subject more complete, be taken notice of under the next head of our inquiries. I flatter myself the progress already made will have sufficed to satisfy the candid and judicious part of the community that some of the objections which have been most strenuously urged against the Constitution, and which were most formidable in their first appearance, are not only destitute of substance, but if they had operated in the formation of the plan, would have rendered it incompetent to the great ends of public happiness and national prosperity. I equally flatter myself that a further and more critical investigation of the system will serve to recommend it still more to every sincere and disinterested advocate for good government and will leave no doubt with men of this character of the propriety and expediency of adopting it. Happy will it be for ourselves, and more honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!)(E1) PUBLIUS 1. The New England States. E1. Two versions of this paragraph appear in different editions. FEDERALIST No. 37 Concerning the Difficulties of the Convention in Devising a Proper Form of Government. From the Daily Advertiser. Friday, January 11, 1788. MADISON To the People of the State of New York: IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects. That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing, however, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others. With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them. Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part. Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all. To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it. Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments. FEDERALIST No. 38 The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed. From The Independent Journal. Saturday, January 12, 1788. MADISON To the People of the State of New York: IT IS not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus. What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens. Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of self-preservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts. A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. "We concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department." Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself. As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever. I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly? I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed. PUBLIUS FEDERALIST No. 39 The Conformity of the Plan to Republican Principles For the Independent Journal. Wednesday, January 16, 1788 MADISON To the People of the State of New York: THE last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions. Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter. "But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States." And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision. Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority. First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act. That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features. The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government. But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character. The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. PUBLIUS FEDERALIST No. 40 On the Powers of the Convention to Form a Mixed Government Examined and Sustained For the New York Packet. Friday, January 18, 1788. MADISON To the People of the State of New York: THE SECOND point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends the "appointment of commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same." The recommendatory act of Congress is in the words following: "WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT: "Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION." From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes. There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no ALTERATIONS or PROVISIONS in the articles of the confederation could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a TRANSMUTATION of the government. Will it be said that the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress MAY ALL be appointed immediately by the people, and in two States(1) are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the PRINCIPLE of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation. The THIRD point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"(2) since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who USURPED THE POWER of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition? But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD. The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investigation. PUBLIUS 1. Connecticut and Rhode Island. 2. Declaration of Independence. FEDERALIST No. 41 General View of the Powers Conferred by The Constitution For the Independent Journal. Saturday, January 19, 1788 MADISON To the People of the State of New York: THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches. Under the FIRST view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States? Is the aggregate power of the general government greater than ought to have been vested in it? This is the FIRST question. It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers. The powers falling within the FIRST class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in WAR? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat. It was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. The distance of the United States from the powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never, for a moment, be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set the same example in the New, as Charles VII. did in the Old World. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage which Great Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. In America the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it. Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added. I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term. Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment, though unlimited by the British Constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House of Commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of TWO YEARS? A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. The palpable necessity of the power to provide and maintain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the Union ought to feel more anxiety on this subject than New York. Her seacoast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the States more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. The power of regulating and calling forth the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external--taxation by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation! PUBLIUS FEDERALIST No. 42 The Powers Conferred by the Constitution Further Considered From the New York Packet. Tuesday, January 22, 1788. MADISON To the People of the State of New York: THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may PERHAPS be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren! Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regulation of coin STRUCK by their own authority, or that of the respective States. It must be seen at once that the proposed uniformity in the VALUE of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States. The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin. The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared "that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce," etc. There is a confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care. PUBLIUS FEDERALIST No. 43 The Same Subject Continued (The Powers Conferred by the Constitution Further Considered) For the Independent Journal. Wednesday, January 23, 1788 MADISON To the People of the State of New York: THE FOURTH class comprises the following miscellaneous powers: 1. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries." The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. 2. "To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment. 3. "To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained." As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. 4. "To admit new States into the Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress." In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other COLONIES, by which were evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of NEW STATES seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress have been led by it. With great propriety, therefore, has the new system supplied the defect. The general precaution, that no new States shall be formed, without the concurrence of the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent. 5. "To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," with a proviso, that "nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public. 6. "To guarantee to every State in the Union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "As the confederate republic of Germany," says Montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland." "Greece was undone," he adds, "as soon as the king of Macedon obtained a seat among the Amphictyons." In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance. A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound." 7. "To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation." This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. 8. "To provide for amendments to be ratified by three fourths of the States under two exceptions only." That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it. 9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same." This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other. PUBLIUS FEDERALIST No. 44 Restrictions on the Authority of the Several States From the New York Packet. Friday, January 25, 1788. MADISON To the People of the State of New York: A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States: 1. "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility." The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible. The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority. The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the States to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the States, on the same principle with that of issuing a paper currency. Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment. 2. "No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay." The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion. The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "EXPRESSLY" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted. Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union. If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed. 2. "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding." The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. 3. "The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution." It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions. Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States. 4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, I pass them over in this. We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved. PUBLIUS FEDERALIST No. 45 The Alleged Danger From the Powers of the Union to the State Governments. Considered For the Independent Journal. Saturday, January 26, 1788 MADISON To the People of the State of New York: HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. In the feudal system, we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons. The State governments will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive. If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union. Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale. Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the State. The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the State governments is incompatible with any system whatever that accomplishes the essential purposes of the Union. PUBLIUS FEDERALIST No. 46 The Influence of the State and Federal Governments Compared From the New York Packet. Tuesday, January 29, 1788. MADISON To the People of the State of New York: RESUMING the subject of the last paper, I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States. I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States. Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever. It was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the prerogatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. PUBLIUS FEDERALIST No. 47 The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts. For the Independent Journal. Wednesday, January 30, 1788. MADISON To the People of the State of New York: HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner." Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR." Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author. If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY." Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them." This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves. I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention. The constitution of New York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. In its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. The members of the executive council are made EX-OFFICIO justices of peace throughout the State. In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed, three by each of the legislative branches constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX-OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature. Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly." Yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State. In the constitution of Georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper. PUBLIUS FEDERALIST No. 48 These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other. From the New York Packet. Friday, February 1, 1788. MADISON To the People of the State of New York: IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting Notes on the State of Virginia, p. 195. "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR." The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution." In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECOND, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRD, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. PUBLIUS FEDERALIST No. 49 Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention. For the Independent Journal. Saturday, February 2, 1788. MADISON To the People of the State of New York: THE author of the "Notes on the State of Virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. His proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose." As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government. We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision. PUBLIUS FEDERALIST No. 50 Periodical Appeals to the People Considered From the New York Packet. Tuesday, February 5, 1788. MADISON To the People of the State of New York: IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other." This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State. Second. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period. Third. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same. Fourth. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places. Fifth. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. PUBLIUS FEDERALIST No. 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. For the Independent Journal. Wednesday, February 6, 1788. MADISON To the People of the State of New York: TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other--that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority--that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE. PUBLIUS FEDERALIST No. 52 The House of Representatives From the New York Packet. Friday, February 8, 1788. MADISON To the People of the State of New York: FROM the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government. I shall begin with the House of Representatives. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found. The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among political antiquaries. The earliest records of subsequent date prove that parliaments were to SIT only every year; not that they were to be ELECTED every year. And even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II, that the intermissions should not be protracted beyond a period of three years. On the accession of William III, when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held FREQUENTLY. By another statute, which passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in the time of Charles II, is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under an alarm for the Hanoverian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents. Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. The parliament which commenced with George II. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election. The ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in SEPTENNIAL elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from BIENNIAL elections. The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other. PUBLIUS FEDERALIST No. 53 The Same Subject Continued (The House of Representatives) For the Independent Journal. Saturday, February 9, 1788. MADISON To the People of the State of New York: I SHALL here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins." If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is founded? No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial--as is proposed in the federal government. Here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina; or that either the one or the other of these States is distinguished in these respects, and by these causes, from the States whose elections are different from both. In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case. The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? The most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? The second question stated is, whether biennial elections be necessary or useful. The propriety of answering this question in the affirmative will appear from several very obvious considerations. No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation? The very statement of the question, in this form, suggests the answer that ought to be given to it. In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State, and with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulations of the different States? How can the trade between the different States be duly regulated, without some knowledge of their relative situations in these and other respects? How can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different States? How can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. The other interior objects will require a proportional degree of information with regard to them. It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. Improvements on the first draughts will every year become both easier and fewer. Past transactions of the government will be a ready and accurate source of information to new members. The affairs of the Union will become more and more objects of curiosity and conversation among the citizens at large. And the increased intercourse among those of different States will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. But with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single State, as to justify the longer period of service assigned to those who are to transact it. A branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. Some portion of this knowledge may, no doubt, be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature. There are other considerations, of less importance, perhaps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. No argument can be drawn on this subject, from the case of the delegates to the existing Congress. They are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. The election of the representatives by the people would not be governed by the same principle. A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate. It is an inconvenience mingled with the advantages of our frequent elections even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people. PUBLIUS FEDERALIST No. 54 The Apportionment of Members Among the States From the New York Packet. Tuesday, February 12, 1788. MADISON To the People of the State of New York: THE next view which I shall take of the House of Representatives relates to the appointment of its members to the several States which is to be determined by the same rule with that of direct taxes. It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State. The establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection. In the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the States, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of America, not to have found a ready preference with the convention. All this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. "We subscribe to the doctrine," might one of our Southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another--the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others--the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. "This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected, that the Southern States would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? Might not some surprise also be expressed, that those who reproach the Southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? "It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor increase the votes of their masters. Upon what principle, then, ought they to be taken into the federal estimate of representation? In rejecting them altogether, the Constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. "This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives. In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN. "After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea? Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. In the federal Constitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands. "For another reason, the votes allowed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A State possesses no such influence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. The new Constitution is, in this respect, materially different from the existing Confederation, as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a State legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes." Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established. In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the States, it is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality. PUBLIUS FEDERALIST No. 55 The Total Number of the House of Representatives For the Independent Journal. Wednesday, February 13, 1788. MADISON To the People of the State of New York: THE number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among States nearly equal in population. The number of representatives in Pennsylvania is not more than one fifth of that in the State last mentioned. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other States. Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob. It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. With these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power. The number of which this branch of the legislature is to consist, at the outset of the government, will be sixty-five. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the Constitution. On a contrary supposition, I should admit the objection to have very great weight indeed. The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens I am unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. What change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. But judging from the circumstances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution. From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? The Congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellowcitizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term. They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny. Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the President, or the Senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representatives cannot, more than suffice for very different purposes; their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. The only means, then, which they can possess, will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. PUBLIUS FEDERALIST No. 56 The Same Subject Continued (The Total Number of the House of Representatives) For the Independent Journal. Saturday, February 16, 1788. MADISON To the People of the State of New York: THE SECOND charge against the House of Representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. As this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the United States, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the Congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. A proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual State, a very few representatives would be very sufficient vehicles of it to the federal councils. Taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it? The federal councils will derive great advantage from another circumstance. The representatives of each State will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the State legislature, where all the local information and interests of the State are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the United States. (The observations made on the subject of taxation apply with greater force to the case of the militia. For however different the rules of discipline may be in different States, they are the same throughout each particular State; and depend on circumstances which can differ but little in different parts of the same State.)(E1) (With regard to the regulation of the militia, there are scarcely any circumstances in reference to which local knowledge can be said to be necessary. The general face of the country, whether mountainous or level, most fit for the operations of infantry or cavalry, is almost the only consideration of this nature that can occur. The art of war teaches general principles of organization, movement, and discipline, which apply universally.)(E1) The attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. This information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single State, but of those among different States. Taking each State by itself, its laws are the same, and its interests but little diversified. A few men, therefore, will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole State might be competently represented by a single member taken from any part of it. On a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State, may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States. The changes of time, as was formerly remarked, on the comparative situation of the different States, will have an assimilating effect. The effect of time on the internal affairs of the States, taken singly, will be just the contrary. At present some of the States are little more than a society of husbandmen. Few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each State, a fuller representation. The foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. The experience of Great Britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight millions. The representatives of these eight millions in the House of Commons amount to five hundred and fifty-eight. Of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons.(1) It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. On the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. They might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. We will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constitutents, are very faintly connected with them, and have very little particular knowledge of their affairs. With all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation of TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY constitutents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it, and comparing it with that of the House of Representatives as above explained it seems to give the fullest assurance, that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it. PUBLIUS 1. Burgh's "Political Disquisitions." E1. Two versions of this paragraph appear in different editions. FEDERALIST No. 57 The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation. From the New York Packet. Tuesday, February 19, 1788. MADISON To the People of the State of New York: THE THIRD charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary. Whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people. Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people. If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people. All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America--a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined. Is it supported by REASON? This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. Is the CONSEQUENCE from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? Is the doctrine warranted by FACTS? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the Congress. Those of Massachusetts are larger than will be necessary for that purpose; and those of New York still more so. In the last State the members of Assembly for the cities and counties of New York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress, calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a SINGLE MEMBER for the executive council. This is the case in all the other counties of the State. Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the people? But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the president of New Hampshire. I leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty. PUBLIUS FEDERALIST No. 58 Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands. Considered For the Independent Journal Wednesday, February 20, 1788. MADISON To the People of the State of New York: THE remaining charge against the House of Representatives, which I am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. It has been admitted, that this objection, if well supported, would have great weight. The following observations will show that, like most other objections against the Constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. 1. Those who urge the objection seem not to have recollected that the federal Constitution will not suffer by a comparison with the State constitutions, in the security provided for a gradual augmentation of the number of representatives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years. Within every successive term of ten years a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each State shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the constitutions of the several States, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal Constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. 2. As far as experience has taken place on this subject, a gradual increase of representatives under the State constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. 3. There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have most weight; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the representatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution. It may be alleged, perhaps, that the Senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. The following reflections will, if I mistake not, be admitted to be conclusive and satisfactory on this point. Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. This advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the Constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. It is farther to be considered, that in the gradation between the smallest and largest States, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. Hence it is by no means certain that a majority of votes, even in the Senate, would be unfriendly to proper augmentations in the number of representatives. It will not be looking too far to add, that the senators from all the new States may be gained over to the just views of the House of Representatives, by an expedient too obvious to be overlooked. As these States will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. The large States, therefore, who will prevail in the House of Representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing States will be bound to contend for the latter, by the interest which their States will feel in the former. These considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. Admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller States, or their predominant influence in the councils of the Senate, a constitutional and infallible resource still remains with the larger States, by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse--that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal Senate or President, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles. In this review of the Constitution of the House of Representatives, I have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the Constitution as has been shown by the smallness of the number proposed. I omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us. PUBLIUS FEDERALIST No. 59 Concerning the Power of Congress to Regulate the Election of Members From the New York Packet. Friday, February 22, 1788. HAMILTON To the People of the State of New York: THE natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words: "The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing senators."(1) This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. It will not be alleged, that an election law could have been framed and inserted in the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that character. If we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government. And as it is more consonant to the rules of a just theory, to trust the Union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the State governments. An impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. As an objection to this position, it may be remarked that the constitution of the national Senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the State legislatures to regulate the federal elections. It may be alleged, that by declining the appointment of Senators, they might at any time give a fatal blow to the Union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. The interest of each State, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. This argument, though specious, will not, upon examination, be found solid. It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government. But it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. There are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the Senate, to recommend their admission into the system. So far as that construction may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision. But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. It may be easily discerned also that the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives, than from their power of appointing the members of its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be, that a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the States that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. But with regard to the federal House of Representatives, there is intended to be a general election of members once in two years. If the State legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election. I shall not deny, that there is a degree of weight in the observation, that the interests of each State, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the State legislatures. But the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. The people of America may be warmly attached to the government of the Union, at times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite temper. This diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the States at the present moment, on the present question. The scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the State administrations as are capable of preferring their own emolument and advancement to the public weal. With so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable States, where the temptation will always be the strongest, might accomplish the destruction of the Union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal House of Representatives. It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. Its preservation, therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust. PUBLIUS 1. 1st clause, 4th section, of the 1st article. FEDERALIST No. 60 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) From The Independent Journal. Saturday, February 23, 1788. HAMILTON To the People of the State of New York: WE HAVE seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the State legislatures. Let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the Union itself. It is not pretended, that this right would ever be used for the exclusion of any State from its share in the representation. The interest of all would, in this respect at least, be the security of all. But it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. Of all chimerical suppositions, this seems to be the most chimerical. On the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive. The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the State governments. It is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible. In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients which will compose the national government, and still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. There is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the Union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. But the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors. As to the Senate, it is impossible that any regulation of "time and manner," which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed--whether in their hands or in those of the Union. But what is to be the object of this capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of "the wealthy and the well-born," to the exclusion and debasement of all the rest of the society? If this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, I presume it will readily be admitted, that the competition for it will lie between landed men and merchants. And I scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. The inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter. The several States are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single State, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single State. In a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. As long as this interest prevails in most of the State legislatures, so long it must maintain a correspondent superiority in the national Senate, which will generally be a faithful copy of the majorities of those assemblies. It cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the Senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of State power cannot, upon their own principles, suspect, that the State legislatures would be warped from their duty by any external influence. But in reality the same situation must have the same effect, in the primitive composition at least of the federal House of Representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other. In order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? As there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. It will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the Union than in those of any of its members. Secondly, that there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. And thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. The importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity. I the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as I understand the meaning of the objectors, they contemplate a discrimination of another kind. They appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of "the wealthy and the well-born." These, it seems, are to be exalted to an odious pre-eminence over the rest of their fellow-citizens. At one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body. But upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? Are "the wealthy and the well-born," as they are called, confined to particular spots in the several States? Have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? Are they only to be met with in the towns or cities? Or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? If the latter is the case, (as every intelligent man knows it to be,(1)) is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature. Let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still I imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people. The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people? PUBLIUS 1. Particularly in the Southern States and in this State. FEDERALIST No. 61 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) From the New York Packet. Tuesday, February 26, 1788. HAMILTON To the People of the State of New York: THE more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. This, say they, was a necessary precaution against an abuse of the power. A declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. But it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. The different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice. If those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several State constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. A review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. But as that view would lead into long and tedious details, I shall content myself with the single example of the State in which I write. The constitution of New York makes no other provision for LOCALITY of elections, than that the members of the Assembly shall be elected in the COUNTIES; those of the Senate, in the great districts into which the State is or may be divided: these at present are four in number, and comprehend each from two to six counties. It may readily be perceived that it would not be more difficult to the legislature of New York to defeat the suffrages of the citizens of New York, by confining elections to particular places, than for the legislature of the United States to defeat the suffrages of the citizens of the Union, by the like expedient. Suppose, for instance, the city of Albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the Senate and Assembly for that county and district? Can we imagine that the electors who reside in the remote subdivisions of the counties of Albany, Saratoga, Cambridge, etc., or in any part of the county of Montgomery, would take the trouble to come to the city of Albany, to give their votes for members of the Assembly or Senate, sooner than they would repair to the city of New York, to participate in the choice of the members of the federal House of Representatives? The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. And, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. Hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this State; and for this reason it will be impossible to acquit the one, and to condemn the other. A similar comparison would lead to the same conclusion in respect to the constitutions of most of the other States. If it should be said that defects in the State constitutions furnish no apology for those which are to be found in the plan proposed, I answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. To those who are disposed to consider, as innocent omissions in the State constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single State should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the United States? If they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. And in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests. Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives. It is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each State may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. The times of election in the several States, as they are now established for local purposes, vary between extremes as wide as March and November. The consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations. Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year. It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the question may be retorted, and it may be asked, Why was not a time for the like purpose fixed in the constitution of this State? No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. The same answer may be given to the question put on the other side. And it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government at the same epochs. PUBLIUS FEDERALIST No. 62 The Senate For the Independent Journal. Wednesday, February 27, 1788 MADISON To the People of the State of New York: HAVING examined the constitution of the House of Representatives, and answered such of the objections against it as seemed to merit notice, I enter next on the examination of the Senate. The heads into which this member of the government may be considered are: I. The qualification of senators; II. The appointment of them by the State legislatures; III. The equality of representation in the Senate; IV. The number of senators, and the term for which they are to be elected; V. The powers vested in the Senate. I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils. II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. III. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable." A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic. Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation. IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution. First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government. Second. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration. Third. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate? A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first. Fourth. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions. To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others. In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY. In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy. But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability. PUBLIUS FEDERALIST No. 63 The Senate Continued For the Independent Journal. Saturday, March 1, 1788 MADISON To the People of the State of New York: A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence. An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind? Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. The half-yearly representatives of Rhode Island would probably have been little affected in their deliberations on the iniquitous measures of that State, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister States; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring. I add, as a SIXTH defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important. Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a NUMEROUS body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents. The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects. Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next. It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that character can be applied. In each of the two first there was a senate for life. The constitution of the senate in the last is less known. Circumstantial evidence makes it probable that it was not different in this particular from the two others. It is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation, as they are repugnant to the genius, of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. I am not unaware of the circumstances which distinguish the American from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. But after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. Many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. There are others peculiar to the former, which require the control of such an institution. The people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act. The difference most relied on, between the American and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. The use which has been made of this difference, in reasonings contained in former papers, will have shown that I am disposed neither to deny its existence nor to undervalue its importance. I feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced, I will refer to a few known facts, in support of what I advance. In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and REPRESENTING the people in their EXECUTIVE capacity. Prior to the reform of Solon, Athens was governed by nine Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them in their LEGISLATIVE capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. The senate of Carthage, also, whatever might be its power, or the duration of its appointment, appears to have been ELECTIVE by the suffrages of the people. Similar instances might be traced in most, if not all the popular governments of antiquity. Lastly, in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY capacity. The Cosmi of Crete were also annually ELECTED BY THE PEOPLE, and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people. From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. For it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece. In answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the Constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy. To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States. But a more particular reply may be given. Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions? If reason condemns the suspicion, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of that State is elected, as the federal Senate will be, indirectly by the people, and for a term less by one year only than the federal Senate. It is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared. On the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution, have been gradually extinguished by the progress of the experiment; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union. But if anything could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch. As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. The fact is the more remarkable, as unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had, at the commencement of the second Punic War, lost almost the whole of its original portion. Besides the conclusive evidence resulting from this assemblage of facts, that the federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves. PUBLIUS FEDERALIST No. 64 The Powers of the Senate From The Independent Journal. Wednesday, March 5, 1788. JAY To the People of the State of New York: IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it. The second section gives power to the President, "BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR." The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors. As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged. Although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved. There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws. It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other. But to this plan, as to most others that have ever appeared, objections are contrived and urged. Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government. However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties? As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter. As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations. With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments. PUBLIUS FEDERALIST No. 65 The Powers of the Senate Continued From the New York Packet. Friday, March 7, 1788. HAMILTON To the People of the State of New York: THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate. A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it. What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded? Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS? Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt? Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded. Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men. But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious. PUBLIUS FEDERALIST No. 66 Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered. From The Independent Journal. Saturday, March 8, 1788. HAMILTON To the People of the State of New York: A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. The FIRST of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well-established maxim which requires a separation between the different departments of power. The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York?(1) A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience? If we take this course, it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the junction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings. But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most POPULAR branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government. But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate. A THIRD objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers. If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments. It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE--they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy. A FOURTH objection to the Senate in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty? This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation. The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law--a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good. So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace. PUBLIUS 1. In that of New Jersey, also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature is the court for the trial of impeachments. FEDERALIST No. 67 The Executive Department From the New York Packet. Tuesday, March 11, 1788. HAMILTON To the People of the State of New York: THE constitution of the executive department of the proposed government, claims next our attention. There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment. Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York, have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio. Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. In the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. They so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of Great Britain and a magistrate of the character marked out for that of the President of the United States. It is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition. In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is EXPRESSLY allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate. This bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party(1); and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. Let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. The second clause of the second section of the second article empowers the President of the United States "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW." Immediately after this clause follows another in these words: "The President shall have power to fill up all VACANCIES that may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF THEIR NEXT SESSION." It is from this last provision that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable. The first of these two clauses, it is clear, only provides a mode for appointing such officers, "whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW"; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution(2), and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested. The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Second. If this clause is to be considered as supplementary to the one which precedes, the VACANCIES of which it speaks must be construed to relate to the "officers" described in the preceding one; and this, we have seen, excludes from its description the members of the Senate. Third. The time within which the power is to operate, "during the recess of the Senate," and the duration of the appointments, "to the end of the next session" of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the State, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President. But last, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. The former provides, that "the Senate of the United States shall be composed of two Senators from each State, chosen BY THE LEGISLATURE THEREOF for six years"; and the latter directs, that, "if vacancies in that body should happen by resignation or otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may make temporary appointments until the NEXT MEETING OF THE LEGISLATURE, which shall then fill such vacancies." Here is an express power given, in clear and unambiguous terms, to the State Executives, to fill casual vacancies in the Senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy. I have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution submitted to the consideration of the people. Nor have I scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America. PUBLIUS 1. See CATO, No. V. 2. Article I, section 3, clause 1. FEDERALIST No. 68 The Mode of Electing the President From The Independent Journal. Wednesday, March 12, 1788. HAMILTON To the People of the State of New York: THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded.(1) I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.(E1) It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty. Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says: "For forms of government let fools contest--That which is best administered is best,"--yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. The Vice-President is to be chosen in the same manner with the President; with this difference, that the Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect to the latter. The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an officer answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President. PUBLIUS 1. Vide federal farmer. E1. Some editions substitute "desired" for "wished for". FEDERALIST No. 69 The Real Character of the Executive From the New York Packet. Friday, March 14, 1788. HAMILTON To the People of the State of New York: I PROCEED now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it. The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. That magistrate is to be elected for four years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between him and a king of Great Britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between him and a governor of New York, who is elected for three years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of four years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of three years for a corresponding office in a single State. The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware. The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. The President is to be the "commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States." In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these:--First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies--all which, by the Constitution under consideration, would appertain to the legislature.(1) The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Third. The power of the President, in respect to pardons, would extend to all cases, except those of impeachment. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited "to levying war upon the United States, and adhering to their enemies, giving them aid and comfort"; and that by the laws of New York it is confined within similar bounds. Fourth. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes. The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist(2) of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative. The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor. The President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination.(3) If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union. Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group. The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism. PUBLIUS 1. A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, "contrary to all reason and precedent," as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same. 2. Vide Blackstone's Commentaries, Vol I., p. 257. 3. Candor, however, demands an acknowledgment that I do not think the claim of the governor to a right of nomination well founded. Yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion. FEDERALIST No. 70 The Executive Department Further Considered From The Independent Journal. Saturday, March 15, 1788. HAMILTON To the People of the State of New York: THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman history, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome. There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention? The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. The ingredients which constitute safety in the republican sense are, first, a due dependence on the people, secondly, a due responsibility. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men.(1) Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot--one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition--vigor and expedition, and this without any counterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. It must be confessed that these observations apply with principal weight to the first case supposed--that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. (But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds--to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.)(E1) (But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds--to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.)(E1) "I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point." These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrutiny into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? In the single instance in which the governor of this State is coupled with a council--that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I forbear to descend to particulars. It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, second, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. But in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself. The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is ONE";(2) that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty. A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is unattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number,(3) were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution. PUBLIUS 1. New York has no council except for the single purpose of appointing to offices; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him. 2. De Lolme. 3. Ten. E1. Two versions of these paragraphs appear in different editions. FEDERALIST No. 71 The Duration in Office of the Executive From the New York Packet. Tuesday, March 18, 1788. HAMILTON To the People of the State of New York: DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he MUST lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be, that he MIGHT lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station. There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly INTEND the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision. The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution. It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment. It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation(1) attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments. PUBLIUS 1. This was the case with respect to Mr. Fox's India bill, which was carried in the House of Commons, and rejected in the House of Lords, to the entire satisfaction, as it is said, of the people. FEDERALIST No. 72 The Same Subject Continued, and Re-Eligibility of the Executive Considered. From The Independent Journal. Wednesday, March 19, 1788. HAMILTON To the People of the State of New York: THE administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. it is limited to executive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war--these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations, and the influence of personal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates--I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them. This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition. An ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty. Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess? A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellowcitizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration. A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretense to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege. There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. PUBLIUS FEDERALIST No. 73 The Provision For The Support of the Executive, and the Veto Power From the New York Packet. Friday, March 21, 1788. HAMILTON To the People of the State of New York: THE third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body. It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that "The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them." It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution. The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States. The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defense. But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body. But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflexion, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them. It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones. Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised. If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican? It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard. But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared. This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers.(1) I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive. PUBLIUS 1. Mr. Abraham Yates, a warm opponent of the plan of the convention is of this number. FEDERALIST No. 74 The Command of the Military and Naval Forces, and the Pardoning Power of the Executive. From the New York Packet. Tuesday, March 25, 1788. HAMILTON To the People of the State of New York: THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. "The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office. He is also to be authorized to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. PUBLIUS FEDERALIST No. 75 The Treaty-Making Power of the Executive For the Independent Journal. Wednesday, March 26, 1788 HAMILTON To the People of the State of New York: THE President is to have power, "by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur." Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the Senate, to two thirds of the members present. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated. With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States. To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary. To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members may, and usually do, represent a State; whence it happens that Congress, who now are solely invested with all the powers of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust. PUBLIUS FEDERALIST No. 76 The Appointing Power of the Executive From the New York Packet. Tuesday, April 1, 1788. HAMILTON To the People of the State of New York: THE President is "to nominate, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies which may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." It has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration." If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration. It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a select assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments. The venalty of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "No senator or representative shall during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office." PUBLIUS FEDERALIST No. 77 The Appointing Power Continued and Other Powers of the Executive Considered. From The Independent Journal. Wednesday, April 2, 1788. HAMILTON To the People of the State of New York: IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency--a strong proof that neither suggestion is true. To state the first in its proper form, is to refute it. It amounts to this: the President would have an improper influence over the Senate, because the Senate would have the power of restraining him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. Let us take a view of the converse of the proposition: "the Senate would influence the Executive." As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can originate the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant restraining him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the (good, without the ill.)(E1) (good of that of appointment, and would in a great measure avoid its evils.)(E1) Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. The reverse of all this characterizes the manner of appointment in this State. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that two out of the inconsiderable number of four men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution. I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea. The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States. Except some cavils about the power of convening either house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. AS this body has a concurrent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer. We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense--a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people? PUBLIUS E1. These two alternate endings of this sentence appear in different editions. FEDERALIST No. 78 The Judiciary Department From McLEAN'S Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: WE PROCEED now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined. The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other. First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition. Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power(1); that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."(2) And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference. But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,(3) in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws. There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution. PUBLIUS 1. The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing."--Spirit of Laws. Vol. I, page 186. 2. Idem, page 181. 3. Vide Protest of the Minority of the Convention of Pennsylvania, Martin's Speech, etc. FEDERALIST No. 79 The Judiciary Continued From MCLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent(1) salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service. This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges. The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges. The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. PUBLIUS 1. Vide Constitution of Massachusetts, Chapter 2, Section 1, Article 13. FEDERALIST No. 80 The Powers of the Judiciary From McLEAN's Edition, New York. Wednesday, May 28, 1788. HAMILTON To the People of the State of New York: TO JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects. It seems scarcely to admit of controversy, that the judiciary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased. The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States. As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum. The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals. The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body. A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control. It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded. The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction. The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend "all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects." This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend: First. To all cases in law and equity, arising under the Constitution and the laws of the United States. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by "cases arising under the Constitution," in contradiction from those "arising under the laws of the United States"? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole. It has also been asked, what need of the word "equity". What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day's practice. The judiciary authority of the Union is to extend: Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes. Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last. Sixth. To cases between the citizens of the same State, claiming lands under grants of different States. These fall within the last class, and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same State. Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature. From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. PUBLIUS FEDERALIST No. 81 The Judiciary Continued, and the Distribution of the Judicial Authority. From McLEAN's Edition, New York. Wednesday, May 28, 1788. HAMILTON To the People of the State of New York: LET US now return to the partition of the judiciary authority between different courts, and their relations to each other. "The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."(1) That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended. It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject. It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts,(2) and the relations which will subsist between these and the former. The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or authorize, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits. But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience. I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution. These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, "with such exceptions and under such regulations as the Congress shall make." The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word "appellate," therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court. But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.(3) This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts. The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States all causes are tried in this mode(4); and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security. This view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. PUBLIUS 1. Article 3, Sec. 1. 2. This power has been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation. 3. This word is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law. 4. I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. FEDERALIST No. 82 The Judiciary Continued. From McLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE. Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. The principles established in a former paper(1) teach us that the States will retain all pre-existing authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. The only thing in the proposed Constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "THE JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish." This might either be construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint; or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction. But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited. Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature "to constitute tribunals inferior to the Supreme Court."(2) It declares, in the next place, that "the JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish"; and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that they shall be "inferior to the Supreme Court," and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courts of the Union. PUBLIUS 1. No. 31. 2. Sec. 8, Art. 1. FEDERALIST No. 83 The Judiciary Continued in Relation to Trial by Jury From MCLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is that relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to civil causes, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning. With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for, is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. The maxims on which they rely are of this nature: "A specification of particulars is an exclusion of generals"; or, "The expression of one thing is the exclusion of another." Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. The rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation. From these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. These examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. But that there may be no misapprehensions upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them. Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. From these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention. It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed. It is evident that it can have no influence upon the legislature, in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. It would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied. And as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions. In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.(1) In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common-law courts have admiralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in practice further than in any other State yet mentioned. Rhode Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal of course from one jury to another, till there have been two verdicts out of three on one side. From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose--"Trial by jury shall be as heretofore"--and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, as such, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty. As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every wellregulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations--that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions(2) to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode. These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect. It is in this form: "In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it." This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing. But this is not all: if we advert to the observations already made respecting the courts that subsist in the several States of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction. It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the States in the Union, or that would perfectly quadrate with the several State institutions. It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan. In short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government. I cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished(3) by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States. The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. For my part, I acknowledge myself to be convinced that even in this State it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as in Great Britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government. It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a Constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either. PUBLIUS 1. It has been erroneously insinuated with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. 2. It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to SPECIAL circumstances, which form exceptions to general rules. 3. Vide No. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court, is examined and refuted. FEDERALIST No. 84 Certain General and Miscellaneous Objections to the Constitution Considered and Answered. From McLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured. To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions. Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7--"Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9, of the same article, clause 2--"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3--"No bill of attainder or ex-post-facto law shall be passed." Clause 7--"No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, section 2, clause 3--"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Section 3, of the same article--"Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section--"The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,(1) in reference to the latter, are well worthy of recital: "To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British Constitution."(2) Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired. I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved"? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.(3) And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "It is improper (say the objectors) to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government. It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives. It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union. Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "States neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government."(4) The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government--a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people. Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little. It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence. Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress. But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union. PUBLIUS 1. Vide Blackstone's Commentaries, Vol. 1, p. 136. 2. Idem, Vol. 4, p. 438. 3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. 4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and IX. FEDERALIST No. 85 Concluding Remarks From MCLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: ACCORDING to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: "the analogy of the proposed government to your own State constitution," and "the additional security which its adoption will afford to republican government, to liberty, and to property." But these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the supposed defects, than to the real excellences of the former. Among the pretended defects are the re-eligibility of the Executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this State, as on the one proposed for the Union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. The additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals. Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which I did not intend; it is certain that I have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. 'T is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject. I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed. I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. "Why," say they, "should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?" This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. This, as far as I have understood the meaning of those who make the concessions, is an entire perversion of their sense. No advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire. I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials? The reasons assigned in an excellent little pamphlet lately published in this city,(1) are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country. There is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. I cannot resolve to conclude without first taking a survey of it in this aspect. It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concurrence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine(2) in favor of subsequent amendment, rather than of the original adoption of an entire system. This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point--no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution. In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing THIRTEEN STATES at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged "on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: "To balance a large state or society (says he), whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; EXPERIENCE must guide their labor; TIME must bring it to perfection, and the FEELING of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments."(3) These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from TIME and EXPERIENCE. It may be in me a defect of political fortitude, but I acknowledge that I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A NATION, without a NATIONAL GOVERNMENT, is, in my view, an awful spectacle. The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a PRODIGY, to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen States, and after having passed over so considerable a part of the ground, to recommence the course. I dread the more the consequences of new attempts, because I know that POWERFUL INDIVIDUALS, in this and in other States, are enemies to a general national government in every possible shape. PUBLIUS 1. Entitled "An Address to the People of the State of New York." 2. It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify. 3. Hume's Essays, Vol. I, p. 128: "The Rise of Arts and Sciences." 
41075	----	generously made available by The Internet Archive.) LEGAL RECREATIONS. VOL. II. Curiosities of Wills. THE CURIOSITIES AND LAW OF WILLS. BY JOHN PROFFATT, LL.B., Counsellor-at-law, author of "Woman before the Law." "Wills, and the construction of them, do more perplex a man than any other matter; and to make a certain construction of them exceedeth _jurisprudentum artem_."--COKE. SAN FRANCISCO: SUMNER WHITNEY & CO. 1876. COPYRIGHT 1876, BY JOHN PROFFATT. TABLE OF CONTENTS. INTRODUCTION 9 CHAPTER I. ORIGIN AND HISTORY OF WILLS 29 CHAPTER II. FORM AND REQUISITES OF WILLS 41 SECTION 1. Nuncupative Wills. 2. Written Wills. CHAPTER III. TESTAMENTARY CAPACITY 68 SECTION 1. Incapacity as to Age. 2. Physical or Mental Incapacity. 3. Senile Dementia. 4. Coverture. CHAPTER IV. LEGACIES 93 SECTION 1. As to their Quality. 2. Legacies Vested or Contingent. 3. Conditional Legacies. 4. Payment of Legacies. 5. The Person who may take. CHAPTER V. LIMITS TO TESTAMENTARY DISPOSITION 130 CHAPTER VI. REVOCATION OF WILLS 152 CHAPTER VII. WILLS AS AFFECTED BY DOMICILE 173 CHAPTER VIII. CONSTRUCTION OF WILLS 185 PREFACE. It is far from the thoughts of the publishers or the author of this book to provide a work merely for entertainment; it is hoped the title will not mislead so as to suggest this idea. While it is sought to make it entertaining and the style animated, in the selection of such apt and striking cases as will illustrate and expound the principles and rules of law relating to wills, the main idea has been to make it useful and reliable as a systematic, clear, and concise summary for the student and lawyer, and interesting to all classes of readers. It is not expected that it will be used as a work of reference on the various subjects connected with wills; but it is hoped it will be found so accurate and practical as to make it serve advantageously for a manual on this subject, so that a careful reading of it will give a correct knowledge of the law relating to this interesting and important subject. It could not be expected that, in a work of a somewhat general character, the details of the statute law of the several States would be given; but, as far as practicable, the law has been noticed, so far as it affected the formalities of execution, attestation, and proof. Many of the principles of the law relating to wills are of such a general and well established character as to be adapted to every locality, and therefore it is believed this work will not have a mere local utility. As far as possible, every effort has been made to have it accurate; that there may be some minor inaccuracies is inevitable, but none, it is hoped, of a serious character. INTRODUCTION. The making of a last will and testament is one of the most solemn acts of a man's life. Few are so frivolous and indifferent as not to realize the importance of an act which is to live after them, and survive long after the hand that traced it has mingled with its kindred dust. They feel that, however regardless people have been of their sayings and doings, however trivial and unimportant have been their acts in the eyes of others, a certain attention, respect, and weight will be given to so deliberate and serious an act as a man's will. They realize, when making it, that they are exercising one of the highest and most important privileges society has granted to the individual--the right to speak and order as to the disposition of his effects and property after he has ceased to live. Accordingly, men who have been rudely treated by the world, whose infirmities and eccentricities have subjected them to its ridicule, whose words would command no hearing from their fellow-men, have eagerly availed themselves of this last and important opportunity to freely speak their mind, to vent their spleen on ungrateful friends, to deride an unfeeling world, and in a cynical manner to express without reserve opinions about persons and things, which could have no hearing while they lived, but in a last will and testament will command the attention due to the solemnity of the occasion. In a word, they take this method to give a parting hit to an unfriendly and unsympathizing world. It will be instructive, as well as interesting, as a phase of human nature, to refer, by way of introduction, to some curious wills, which may form an inviting prelude to a more serious treatment of the subject. As might be anticipated, many wills reflect the singular notions, the eccentricities and prejudices of the makers. In many cases, the testator speaks his mind so freely that his opinion of others really amounts to a libel; again, his antipathies or his affections are as freely exhibited; while the instances are not rare in which he bequeaths to posterity the benefit of his religious opinions. Testators often give directions as to the place and manner of their burial, as well as the expenses of their funeral pageant. In one case, a testator desired to be buried in a space between the graves of his first and second wives.[1] Mr. Zimmerman, whose will was proved in 1840, in England, accompanied the directions for his funeral with something like a threat in case they were not carried out. In his will he says: "No person is to attend my corpse to the grave, nor is any funeral bell to be rung; and my desire is to be buried plainly and in a decent manner; _and if this be not done, I will come again--that is to say, if I can_." The Countess Dowager of Sandwich, in her will, written by herself at the age of eighty, proved in November, 1862, expresses her wish to be buried decently and quietly--_no undertakers' frauds, or cheating; no scarfs, hatbands, or nonsense_. In a similar manner, Mrs. Kitty Jenkyn Packe Reading, whose will was proved in April, 1870, gives explicit directions as to avoiding useless expense at her funeral. She died abroad, and directed that her remains be put into a leaden coffin, then enclosed in a wooden coffin, and to be taken as freight to her residence, Branksome Tower, in England. She foresaw that in this way the remains could not enter the house through the door, and directed a window to be taken out of a certain room, in order to permit her remains to enter. The memory of the jars and ills of domestic life has so embittered a man's mind, that if the strife was unequal during his lifetime, he hopes to turn the scale in his favor when dying, and in his will have a last word, and in this way cut off his spouse from her inalienable prescriptive right of having the last word. A man, then, has been known to call his wife "jealous, disaffectionate, reproachful, and censorious." And again, a wife's faults and shortcomings have been published to the world, and children must be mortified to know that in the public documents of the country allusion is conspicuously made to the failings of their mother, as when a husband perpetuates his wife's "unprovoked, unjustifiable fits of passion, violence, and cruelty." The following words are used by an individual who died in London in June, 1791, in reference to his wife: "Seeing that I have had the misfortune to be married to the aforesaid Elizabeth, who ever since our union has tormented me in every possible way; that not content with making game of all my remonstrances, she has done all she could to render my life miserable; that Heaven seems to have sent her into the world solely to drive me out of it; that the strength of Samson, the genius of Homer, the prudence of Augustus, the skill of Pyrrhus, the patience of Job, the philosophy of Socrates, the subtlety of Hannibal, the vigilance of Hermogenes, would not suffice to subdue the perversity of her character; that no power on earth can change her, seeing we have lived apart during the last eight years, and that the only result has been the ruin of my son, whom she has corrupted and estranged from me. Weighing maturely and seriously all these circumstances, I have bequeathed, and I bequeath to my said wife, Elizabeth, the sum of _one shilling_, to be paid unto her within six months after my decease."[2] Happily, the ills and strifes of conjugal life are not the most frequently remembered incidents of a man's life; its felicities, its joys and tender experiences, the fidelity and devotion of a true partner, are often most vividly and fondly cherished at death, and touchingly alluded to in a man's last will. In this manner, Sharon Turner, the eminent author of the "History of the Anglo-Saxons," and other works, who died in London in 1847, at the age of seventy-nine, and whose will was proved in that year, delights to speak of his wife's affection, and is particularly solicitous that she should not suffer in her personal appearance by the unskillfulness of the persons who had taken her portrait. Speaking of his wife, who was dead, he says: "It is my comfort to have remembered that I have passed with her nearly forty-nine years of unabated affection and connubial happiness, and yet she is still living, as I earnestly hope and believe, under her Saviour's care, in a superior state of being.... None of the portraits of my beloved wife give any adequate representation of her beautiful face, nor of the sweet, and intellectual, and attractive appearance of her living features, and general countenance, and character." Too often testators place all the obstacles they can in the way of their widows marrying again, as will appear more fully in another part of this work. The following instance is one of the few exceptions, and it contains, besides, the most graceful tribute to a wife's character, as given in a will, that we know of. Mr. Granville Harcourt, whose will was proved in March, 1862, thus speaks of his wife: "The unspeakable interest with which I constantly regard Lady Waldegrave's future fate induces me to advise her earnestly to unite herself again with some one who may deserve to enjoy the blessing of her society during the many years of her possible survival after my life. I am grateful to Providence for the great happiness I enjoy in her singular affection; and I pray and confidently hope she may long continue to possess the same esteem and friendship of those who are intimate with her, and can appreciate her admirable qualities, and the respect of all with whom, in any relation of life, she is connected."[3] Ladies have not the same opportunity and privilege of restraining their husbands from marrying again, and we cannot call to mind a single case of a married woman attempting to do so in a will, but on the contrary, we have the case of a lady recommending marriage to her husband. Mrs. Van Hanrigh, whose will was proved in December, 1868, leaves all her property, which appears to have been considerable, to her husband. Endorsed on the back of the will is a memorandum, stating that she wishes her clothes to be sold to pay her funeral expenses, which are to be as small as possible, and after commending her husband to the care of her brother, she adds: "It is also my earnest wish that my darling husband should marry, ere long, a nice, pretty girl, who is a good housewife, and above all, to be careful that she is of a good temper." Theologians have speculated and differed upon the nature of Heaven's happiness, but John Starkey, whose will was proved in November, 1861, had no doubt of its character, for he states: "The remainder of my wealth is vested in the affection of my dear wife, with whom I leave it in the good hope of resuming it more pure, bright, and precious, where neither moth nor rust doth corrupt, and where there are no railways or monetary panics or fluctuations of exchange, but the steadfast though progressive and unspeakable riches of glory and immortality." The disappointments of life, the inconstancy of friends, and the slights of the world have so wrought upon some minds as to cause them to record in a will their estimate of all earthly things, and enlighten posterity by revealing to it the last impressions of either a cynic or a philosopher. Soured and chagrined, they rail at what they deem the folly and hypocrisy of the world, and in a last utterance freely express themselves upon subjects upon which, perhaps, the proprieties of life made them silent while they lived. The following document, penned by an Earl of Pembroke who lived during the political turmoils of the seventeenth century, testifies to a singular shrewdness and knowledge of character, with a considerable amount of dry humor. As a literary and historical curiosity, we may be justified in giving it at length. The copy from which it is taken bears the signature of the keeper of the records in Doctors' Commons, Nathaniel Brind, beneath the words "_Concordat cum originali_." It is as follows: "I, Philip V, Earl of Pembroke and Montgomery, being, as I am assured, of unsound health, but of sound memory, as well I remember me that five years ago I did give my vote for the despatching of old Canterbury, neither have I forgotten that I did see my king upon the scaffold, yet as it is said that death doth even now pursue me, and, moreover, that it is yet further said that it is my practice to yield under coercion, I do now make my last will and testament. "Imprimus: As for my soul, I do confess I have often heard men speak of the soul, but what may be these same souls, or what their destination, God knoweth; for myself, I know not. Men have likewise talked to me of another world, which I have never visited, nor do I know even an inch of the ground that leadeth thereto. When the King was reigning I did make my son wear a surplice, being desirous that he should become a bishop, and for myself, I did follow the religion of my master; then came the Scotch, who made me a Presbyterian; but since the time of Cromwell, I have become an Independent. These are, methinks, the three principal religions of the kingdom. If any one of the three can save a soul, I desire they will return it to him who gave it to me. "Item: I give my body, for it is plain I cannot keep it, as you see the chirurgeons are tearing it to pieces. Bury me, therefore; I hold lands and churches enough for that. Above all, put not my body beneath the church porch, for I am, after all, a man of birth, and I would not that I should be interred there where Colonel Pride was born. "Item: I will have no monument, for then I must needs have an epitaph and verses over my carcass--during my life I had enough of these. "Item: I desire that my dogs may be shared among all the members of the Council of State. With regard to them, I have been all things to all men; sometimes went I with the Peers, sometimes with the Commons. I hope therefore they will not suffer my poor curs to want. "Item: I give my two best saddle-horses to the Earl of Denbigh, whose legs, methinks, must soon begin to fail him. As regards my other horses, I bequeath them to Lord Fairfax, that when Cromwell and his council take away his commission, he may still have some _horse_ to command. "Item: I give all my wild beasts to the Earl of Salisbury, being very sure that he will preserve them, seeing that he refused the King a doe out of his park. "Item: I bequeath my chaplains to the Earl of Stamford, seeing he has never had one in his employ, having never known any other than his son my Lord Gray, who, being at the same time spiritual and carnal, will engender more than one monster. "Item: I give nothing to my Lord Saye, and I do make him this legacy willingly, because I know that he will faithfully distribute it unto the poor. "Item: Seeing that I do menace a certain Henry Mildmay, but did not trash him, I do leave the sum of fifty pounds sterling to the lacquey that shall pay unto him my debt. "Item: I bequeath to Thomas May, whose nose I did break at a masquerade, five shillings. My intention had been to give more; but all who have seen his history of the Parliament will consider that even this sum is too large. "Item: I should have given to the author of the libel on women, entitled 'News of the Exchange,' threepence, to invent a yet more scurrilous mode of maligning; but, seeing that he insulteth and slandereth I know not how many honest persons, I commit the office of paying him to the same lacquey who undertaketh the arrears of Henry Mildmay. He will teach him to distinguish between honorable women and disreputable. "Item: I give to the Lieutenant-General Cromwell one of my words, the which he must want, seeing that he hath never kept any of his own. "Item: I give to the wealthy citizens of London, and likewise to the Presbyterians and nobility, notice to look to their skins, for, by order of the State, the garrison of Whitehall hath provided itself with poniards, and useth dark lanterns in the place of candles. "Item: I give up the ghost." One of the most interesting old wills, the first will registered in the English language in Doctors' Commons, is the will of Lady Alice West, proved in the year 1395. The first will recorded there is in the year 1383, and is in Latin, as most of the very early wills are. She was the widow of Sir Thomas West. She begins thus, in the old-fashioned style: "In Dei nomine, Amen. On Thursday, that is to sey, the XV day of the moneth of Jul, in the yer of the incarnacion of our Lord Ihu Crist, a thousand and thre hundred and fourescore and fiftene--I, Alice West, lady of Hynton Martel, in hool estat of my body and in good mynde beynge, make my testament in the maner as hit folweth hereafter: In the begynnyng, I bequethe my soule to God Almighty and to his moder, Seynt Marie, and to al the seyntis of heuene, and my body to be beryed in Crischerche in the priorie of the chanones in Hamptschire by the Newe Forest wher as myne auncestres leggeth." The wills of persons of distinction were, in spirit, much the same in the fourteenth century as at present; there are pecuniary and specific legacies to relatives, legacies to old and present servants, legacies for charitable purposes, and particular directions about the funeral and place of burial. Dame Alice West's will is too long to give at length, but some extracts, showing the articles which at that period were so valuable as to be specifically bequeathed, the amounts of the legacies, and the persons to whom they were left, may prove interesting. The lady commences the disposition of her property as follows: "Also, I devyse to Thomas, my sone, a bed of tapicers werk with alle the tapices of sute, red of color, ypouthered with chapes and scochons in the corners of myn auncestres armes, with that I bequethe to the same Thomas the stoffe longyng thereto--that is to seye, my best fetherbed, and a blue canevas and a materas and twey blankettys and a peyre schetes of reynes and sex of my best pilwes." It is an unusual thing in the present day to dispose of bedding by will; and the reason is, that feather-beds, mattresses, pillows, blankets, and sheets are comparatively cheap; but in Lady Alice's time they must have been articles of luxury and a considerable item in the dower of a bride. The testatrix next thinks of her daughter-in-law: "Also I bequethe to Johane my sone is wyf, a masse book and alle the bokes that I have of latyn, englisch, and frensch out take the forsayd matyns book, that is bequethe to Thomas my sone." We wonder what books she had, and particularly what English books; a list of them would be most interesting. She could not have had many, and we cannot suggest what they were. It should be remembered that this will was made more than five years before the death of Chaucer, and nearly eighty years before the first book was printed in English, and books in English must consequently have been few indeed. Their scarcity made them of great value; they were carefully treasured, and their future ownership specially provided for by will. Something might be said as to the education of ladies of the highest class at that time. Here was a lady possessing books in English, Latin, and French, which, it is presumable, she could read. Latin, however, was the language of her religion; French was probably the tongue she was brought up in, and was the language of the court; and English was the language of her dependents; so that, as a matter of course, every lady of rank may have been familiar with the three languages. She further gives certain gifts to members of her family: "To Sir Nichol Clifton, Knyght, and to Alianore his wif, my doughter, and to Thomas Clifton here sone, £120, euenliche to be departed betwix ham thre; and if Thomas here sone forsayd deyeth, I wol that it torne to profet of his fader and his moder." We should not expect to find any will previously to the Reformation without a legacy to say masses. Lady West gives £18 10_s._, "for to synge and seye 4400 masses for my lord Sir Thomas West is soule, and for myne, and for alle cristene soules," and they are to be "done" within "fourteen night after her deces." There is another bequest to Christ Church, where she was to be buried, "to bidde and to rede, and synge for my lordes soule forsayd, and myne, and alle cristene soules, while the world schal laste." Having given all the legacies she desires, the testatrix then disposes of the remainder of her property: "An al the residue of my godes, after the dettys that I owe ben quyt, and after my testament is parfoned, I bequethe to the forsayd Thomas my sone"; and after all these directions and legacies, the good lady finishes her will by ordering the manner of her own interment; when she dies her body is to be carried to the "forsayd priorie of Crischerch, and with right litel cost" buried at the first mass, with a taper of six pounds of wax burning at her head, and another taper of six pounds of wax burning at her feet. The will of Shakspeare, executed on the 25th March, 1616, not quite a month previous to his death, forms a most interesting document for the scholar, as well as the lawyer. It is registered in Doctors' Commons _verbatim_, as it was written, and is prized as a unique and interesting document relating to the poet. It is written in the usual clerical hand of the period, on three sheets of paper, fastened at the top. Each sheet is signed by the poet, the final signature, "By me, William Shakspeare," being the most distinct. These three autographs, with two appended to deeds relating to his property in London, constitute the only undoubted signatures of Shakspeare which we at present possess. It commences in the old way, thus: "In the name of God, Amen! I, William Shackspeare of Stratford upon Avon, in the countie of Warr. gent, in perfect health and memorie, God be praysed! doe make and ordayne this my last will and testament in manner and forme followeing; That ys to saye, First, I comend my Soule into the handes of God my Creator, hoping and assuredlie beleeving, through thonelie merites of Jesus Christe my Saviour, to be made partaker of lyfe everlastynge, And my bodye to the Earth whereof yt ys made." It would be tedious to give _in extenso_ the various items of this celebrated will; we shall only refer to a few such items as are sufficiently remarkable. In one item he gives a bequest to his sister Joan: "I gyve and bequeath unto my said sister Jone XX pounds, and all my wearing Apparrell, to be paied and delivered within one yeare after my deceas; and I doe will and devise unto her _the house_ with thappurtenaunces in Stratford wherein she dwelleth, for her natural lief, under the yearlie rent of xij{d}," or twelve pence. He gives various specific and general legacies; and, if we judge by the number of such, he must have had numerous friends. In another item he gives to the poor of Stratford "tenn poundes "; to Mr. Thomas Combe his sword; to his daughter Judith his "broad silver gilt bole." The most remarkable item in the will is the following: "_I give unto my wief my second best bed with the furniture._" He devised to his daughter, Susanna Hall, his landed property in Stratford, limited to the first or other sons of her body after her life. It is said the object of the poet in leaving the bulk of his property to Mrs. Hall was evidently to found a family, the darling object of Shakspeare's ambition. One clause interlined in the will has occasioned a good deal of marvel and censorious criticism--the bequest to his wife, who has been represented as cut off by him, not indeed with a shilling, but with an old bed. But, as she was entitled in law to dower out of his real estate, Shakspeare may not have deemed it necessary to make any further bequest to his wife than that of the second-best bed, as a special mark of affection. This is the explanation now tendered of what must otherwise have appeared a most extraordinary procedure on the part of the poet. It must be admitted, however, that, making full allowance for her provision by right of law, there still remains a feeling of dissatisfaction with the total exclusion of Anne Shakspeare from all parts of her husband's will, with the exception of an interlined clause of a dozen words. It is also a significant fact that, with the exception of the bed, no household furniture is bequeathed to the widow; so that she must have been left dependent on her daughters for lodging and residence. The will of Henry VIII in some of its provisions is well worth the attention of the scholar, as it reflects the state of the distinguished testator's religious opinions, which, contrary to general impressions, were not entirely in harmony with the views of the Reformers in England. This will was the subject of judicial examination, in the House of Lords, in 1860. (8 H. L. Cas. 369.) It appears that, by the foundation of Edward III, when he instituted the order of the Garter, and created the Poor Knights, a certain obligation had been cast upon the dean and canons of Windsor to provide for the Poor Knights, the King having promised the dean and canons lands to enable them to do so. But, by an Act of Parliament, passed in the 22 Edw. IV, reciting that "the possessions given to the said dean and canons suffice not to sustain all other charges, and also to bear the charges of the Poor Knights," it was enacted "that the same dean and canons, and their successors forever more, be utterly quit and discharged from all manner of exhibition or charge of or for any of the same Knights." Down to the end of the reign of Henry VIII, the Poor Knights appear to have been fed only with promises, and no permanent provision was made for them. In the 3 Hen. VIII, the dean and canons having, at his request, granted to a Poor Knight, named Peter Narbonne, an annuity of twenty marks for his life, the King wrote them a letter of thanks, in which he acknowledges that they were not bound to find anything for the Poor Knights since the 22 Edw. IV; thanks them for their bounty to Peter Narbonne; promises them favor in their suits hereafter as a recompense, and assures them "that they shall not be burthened with the maintenance of any other Poor Knights till such time as he should have provided lands for their exhibition, which not only should be sufficient to discharge the dean and canons of such Knights, but also of the said annuity." The promise was not fulfilled; and when Henry's end approached, the breach of it lay heavily upon his conscience, and hence the following provision in his will, which was dated December 30th, 1546, about three weeks before his death. One of the directions was: "That, as soon as may be after our departure from this world, the Dean and Chapter shall have manors, etc., to the yearly value of £600 over all charges, made sure to them and their successors, forever, upon the conditions hereafter ensuing." Among the other provisions were the following: "And for the due and full accomplishment and performance of all other things conteined with the same in the form of an indenture, signed with our own hand, which shall be passed by way of covenant for that purpose between the said Deane and Cannons and our executors, if it pass not between us and the said Deane and Cannons in our liefe; that is to say, the said Deane and Cannons and their successours forever shall finde two prestes to say masses at the said aulter to be made where we have before appointed our tomb to be made and stand; and also after our decease kepe yerely four solemne obites for us within the said College of Windesour, and at every of the same obites to cause a solemne sermon to be made, and also at every of the said obites to give to poor people in almes tenne poundes. "And also to give forever yerely to thirtene poor men, who shall be called Poor Knightes, to every of them twelf pens every daye, and ones in the yere yerely forever, a long joune of white cloth, with the garter upon the brest, embrodered with a sheld and cross of Sainte George within the garter, and a mantel of red cloth, and to such one of the said thirtene Poor Knightes as shall be appointed to be hed and gouvernour of them, £3 6s. 8d. yerely forever, over and besides the said twelf pennes by the daye. "And also to cause, every Sonday in the yere, forever, a sermon to be made forever at Windesour aforesaid, as in the said indenture and covenant shall be more fully and particularly expressed, willing, charging, and requiring our son Prince Edwarde, all our executors and counsaillors which shall be named hereafter, and all other our heirs and successours which shall be Kinges of this realme, as they will answer before Almighty God at the dredful day of judgment, that they and every of them do see that the said indenture and assurance to be made betwene us and the said Deane and Cannons, or between them and our executours, and all thinges therein conteined, may be duly put into execution, and observed and kept forever, perpetually, according to this our last will and testament." The Archbishop of Canterbury and the Lord Chancellor, and a great many other eminent persons, and Councillors of the Privy Council, with "our son Prince Edwarde," were appointed "executors," and, "as they must and shall answer at the day of judgment," they were required, "truly and fully to see this my last will performed in all things with as much speed and diligence as may be." In 1547, a meeting of the executors and Privy Councillors, with the Lord Protector at their head, was assembled, and a document was drawn up which recited the material parts of the will relating to this matter, and directed that "the Barons of the Exchequer, the King's Sergeants, the Attorney and Solicitor, should deliberately peruse the whole will, and frankly declare their opinions what the executors may lawfully do, and how and in what form the said will may be lawfully executed and performed." This was done, and a special report was afterwards made, declaring that the will might be carried into effect, and stating how that might be done. CHAPTER I. ORIGIN AND HISTORY OF WILLS. Jurists do not quite agree as to the full extent of a man's interest in, and control of, the property he acquires. There are different theories as to the real title to property; most all, however, agree that occupation, united with labor, is the best ground of a title to exclusive ownership of property. But how long will this ownership or control continue? During lifetime, or for a longer period? Some maintain that, by the law of nature, it only lasts during the life of the owner, and after his decease the property again becomes merged with the general stock of the public--it becomes _publici juris_; and that to permit one to order and control its disposition after he has ceased to live, is a privilege or a concession of society, and not any inherent natural right. For a large amount of property is owned in societies advanced in civilization before the right of testamentary disposition is exercised, which would show that this right is not coeval with the foundation of society or the acquisition of property, and therefore nations are not impelled to it by a natural instinct and impulse. It is claimed that the _jus disponendi_ is a necessary incident of property--an inseparable quality; but if, by this term, we understand a right of disposal while a man lives, we can admit that it belongs to ownership; but it is quite a different thing when a man ceases to live; for then, naturally, he ceases to have dominion; and if he has a natural right to dispose of his goods for a short time after death, why not for millions of years?[4] It is not a natural inherent right of the individual to dispose of his property after his decease; it is no more or less than a right given by positive law--a right which is founded on convenience and concession. For a very obvious reason, we do not find this right in the early constitution of society, either given or exercised. Society, in early times, was founded on the family as the initial unit or group, which was only recognized by the State as entitled to maintenance. Naturally, by right of this principle in early society, the property acquired by an individual went into the general stock of the family, as a necessary _appanage_, and was in the name of the head of that family, and at his decease, by a principle of early law, devolved in due course upon the successor, or the _hæres_ of the Roman law, who took it with all the obligations of the deceased. Society had not yet so advanced as to make the individual an object of its care and government, and recognize him as a distinct unit apart from the family; and succession--"universal succession," as it was called--to the property in the family, was the usual disposition of property. It took a long while before society permitted the individual to dispose of his property _out of his family_, because this was so abnormal and unnatural as to be only dictated by caprice, passion, or prejudice, insomuch that whenever attempted among the Romans, the will was set aside as _inofficious_, and it was not permitted at all in the early English law; and even now is a presumed ground of imbecility or insanity in a testator. The will, as we understand it, is unquestionably of Roman origin--it is purely a creature of that law, the _corpus juris_, "the public reason of the Romans." The laws of Solon only permitted wills when the testator had no children.[5] Among the Hindoos, the right of adoption as a succession to property effected the same purpose as a will,[6] while among the Teutonic nations wills were unknown, and the children inherited.[7] At first, among the Romans, a will was neither secret, revocable, nor of effect, until after death--characteristics which we necessarily associate with a will in modern times. A will then was more like a conveyance in a man's lifetime--a sale of the family rights, property, and obligations, in the presence of witnesses, to a person known as the _Emptor Familiæ_, who assumed the place of the testator as head of the family. He might be compared to an assignee under our law, with this difference, that the latter is only liable as far as he has assets. Wills were usually witnessed by seven witnesses, who sealed outside upon a thread, and after some time, deposited in the archives during the life of the testator, and opened in the presence of the prætor or other officer, after decease, and any person might have a copy, being matter of record.[8] The Roman law did not permit the entire disposition of property by will, if a man had a family. By a law of Justinian, one-fourth, at least, was required for the children, and when there were four children, they could claim one-third, which became a general law throughout Europe.[9] The Roman influence, connection, and dominion in Great Britain necessarily introduced Roman laws and usages. It was a connection lasting fully three hundred years, during which time the country was visited by Roman jurists, and the people became familiarized with the administration of the civil law, both through the civil courts and the churches. Accordingly, while wills were not in use among kindred Teutonic people in the north of Europe, they were well known and general in the Saxon period in England, where an unlimited and absolute right of devise was given. In the laws of King Canute, provision is made for the disposition of property in cases of _intestacy_, which makes it evident that testamentary dispositions were recognized;[10] and Canute himself left a will.[11] There are notices of some twenty-five Anglo-Saxon wills extant. Nearly all of the testators were people of prominence and distinction, and these wills are preserved in monastic houses to which they devised property. King Alfred's will, from its antiquity and its formal character, is one of the most interesting ancient documents existing. (He died A. D. 900.) It opens thus: "I, Alfred, King by God's grace, and with Ethered's the Archbishop's counsel, and all the West Saxon Wights, witness, have considered about my soul's thrift, and about the inheritance that to me, God and mine Ancestors did give, and about the inheritance that Ethulf, King, my father to us, three brothers, bequeathed, Ethelbold, Etherad and me." He provides for masses thus: "And so divide for me and my father, and for the friends that be interceded for, and I intercede for, two hundred of pounds, fifty to the mass priests over all my kingdom, fifty to God's poor ministers, fifty to the distressed poor, fifty to the church that I at shall rest; and know not certainly whether the money so much is, nor I know not but of it more may be, but so I ween." It appears that King Alfred's will was prepared by the Archbishop's counsel, and published in the presence of the West Saxon Wights, or Wise Men. This gives us a glimpse at the interference of the clergy in such important affairs, and leads us on a most interesting and important inquiry as to the connection of wills with ecclesiastical courts. The clergy of that time possessed a monopoly of the learning of the day, and especially of the learning of the civil law, having made it a matter of study. Reasonably they would be consulted on subjects on which the civil or Roman law had such a bearing; and as a matter of fact, they soon became presiding judges with the civil magistrate in cases of probate of wills. In the early Saxon period, the bishop sat with the earl in the county court in the administration of testamentary matters; and this was the case up to the time of the Normans. But the clergy had occasion to interfere on other grounds, at a very early period. At a very early day, they sought jurisdiction in probate matters. The practice was probably favored by the sanction given by the civil law to the intervention of the bishop to compel the execution of a will where there were legacies _in pios usus_--to pious uses.[12] When any legacy was disposed of to pious uses, for the use of the church, for monasteries, or for the poor, the bishops were to sue for the same, and see to the administration thereof.[13] But Justinian would not allow further than this, and he prohibited the bishops interfering generally in the probate of wills.[14] Upon which a writer remarks: "Here we see the clergy in those days had set their foot upon the business, and I suppose since that time they never pulled it wholly out again." The popes, as their power increased, endeavored to obtain the jurisdiction over testaments. Pope Innocent the Fourth claimed for the bishop the power to dispense property left to a charity, if there be no executor appointed by the will, and if there be an executor, and he does not discharge the duty faithfully, the bishop may assume administration.[15] As a matter of history, in European countries, except England, the church did not pretend that wills were of ecclesiastical cognizance _sua natura_, but only such wills as were made for pious uses.[16] So that the origin of the jurisdiction of ecclesiastical courts touching testamentary matters is by the custom of England, and not by ecclesiastical law. Blackstone says: "The spiritual jurisdiction of testamentary causes is a peculiar constitution of this island; for in almost all other (even in popish) countries all matters testamentary are under the jurisdiction of the civil magistrate."[17] We have seen that during the Saxon period the bishop presided with the earl in the administration of testamentary matters; but in the eighteenth year of William the Conqueror, a separate court was organized for the bishop, who no longer sat with the civil authorities. This was the beginning of the ecclesiastical jurisdiction; though at first power was granted only to adjudicate on such matters as were for the good of the soul, an expression which the bishops subsequently made very elastic and comprehensive. The clergy did not acquire the exclusive jurisdiction till the reign of Henry I, who by charter first established this jurisdiction.[18] In the time of Richard I, when he was in confinement, the clergy were more fully established in this right, for they obtained from him a confirmation of the ecclesiastical immunities.[19] The proof of wills was thus well settled and established, for it is spoken of as an ordinary and undisputed usage, and through all the animated disputes in the reign of Henry II, as to the civil and ecclesiastical jurisdiction, it is observable that nothing is advanced against the authority of the spiritual courts in testamentary causes. In the reign of Richard II the county courts were prohibited to infere with the probate of wills.[20] By the early common law of England, if a man had a wife and children, he had only a testamentary disposition of one-third of his property; the remainder, the shares of the widow and children, were called _rationabiles partes_, which must be intact. The personal attendance of the clergy on the dying would ordinarily lead to the disposition of the third which a person was privileged to bequeath by testament; and, from ancient wills, it is very evident this power was liberally and generally exercised in favor of religious uses, such as were deemed for the soul's health of the testator. Whenever, by accident or extreme feebleness, the exercise of this right was prevented, the third thus left at the disposal of a person was of right claimed by the clergy, as the "dead man's part," to be appropriated for his benefit, _pro animæ salute_. This would lead to the intervention of the spiritual courts in the distribution of an intestate's estate, especially as they had full power over the probate. So it became the invariable custom to take the third of an intestate's goods for pious uses, which were, to assist in paying for masses for the benefit of the "defunct's soul," to assist the poor and infirm, to pay for church lights, religious services, and anniversaries. If a man died without wife or children, the Ordinary, as the bishop was termed, had the administration of the whole of an intestate's property, subject to the payment of the debts of the deceased. It is easy to see what immense power and revenue accrued to the church in consequence of the establishment of these privileges; and the influence gained thereby, and the flagrant abuses resulting from this prerogative, caused just alarm to the civil power, and led to a struggle to curtail such powers in the reign of Edward III,[21] when a law was passed providing that the Ordinary should grant the administration to the next of kin. The Statute of Distribution, in the reign of Charles II, destroyed the old common-law right to the _pars rationabilis_, and made the estate distributable among the widow and next of kin, leaving still, however, in the hands of the administrator, for his own use, the third formerly retained by the church; and finally, by statute, in the first year of James II, it was provided that this third should also be distributed. So, after a struggle of many years, the administration of the goods of an intestate was taken out of the hands of the spiritual courts, and rightfully given to the family of the deceased. The long, slow process is an interesting phase of history for the general reader, as it is for the lawyer, who finds it necessary to follow it, because the rules and decisions of the ecclesiastical courts as to the probate of wills and the administration of personal property have become incorporated into the body of our law, and form a part of it.[22] Up to the thirty-second year of Henry VIII, there was no power to make a will of real estate. In his reign the Statute of Wills was passed, which first gave this power, and after that time a person had the right to make wills of real as well as personal property; but the ecclesiastical courts had only cognizance of the wills of personal property; the common-law courts had the jurisdiction of wills relating to real estate. The next statute that affected wills was the _Statute of Frauds_, in the twenty-ninth year of Charles II, which required wills affecting real estate to be in writing, _signed_ by the testator, and attested in the presence of three or four credible witnesses. This statute had an immense influence on our jurisprudence, and is substantially adopted in all our States, with slight variations.[23] In that statute certain formalities were insisted upon, but only in regard to a will of real estate; a will of personal property was not required to be executed in the same manner and with the like formalities.[24] Before the Statute of Frauds, according to 32 Henry VIII, it was only necessary for the will to be in writing; and accordingly, where a man beyond the sea wrote a letter, in which he declared his will to be that his land should go in a certain way, it was adjudged a good will.[25] And a will written without the appointment of the testator, if read to him and approved by him, was held good, signing and sealing not being necessary.[26] Now, by statute I Vict., ch. 26, in England, there are required the same formalities in a will of personal estate as by the Statute of Frauds are required in a will of real estate, and the same is now the case in nearly all our States; and, by the same statute, a person has a full testamentary disposition of all real estate, as well as personal, to which he is entitled, either in law or in equity, at the time of his death. Our American States generally, after the Revolution, adopted the English common law, as it was at certain periods--some taking one date, and others a different one; but in all substantially the common law was taken as the foundation of our municipal law, with the exception of Louisiana. Hence the law relating to the execution and probate of wills, as administered in the ecclesiastical courts, was engrafted here, subject to certain statutory modifications suitable to our polity and circumstances. But we, having no recognition of an established religion, have given this jurisdiction to special civil courts, denominated Probate Courts in some States, as in California; the Orphan's Court, as in New Jersey; the Surrogate's Court, as in New York. The name Surrogate again brings to our mind a reminiscence of the former ecclesiastical jurisdiction; it was the name given to the bishop's deputy. However, in all, no matter by what name known, the precedents, the decisions, and rules, as established in the ecclesiastical courts in England, in regard to testamentary matters, have authority and force; and it is for this reason the history and adjudication of these courts are so necessary to the lawyer of the present day.[27] CHAPTER II. FORM AND REQUISITES OF WILLS. A will, from its nature, is the declaration of a man's mind as to the proper disposition of his property after death. This declaration, as any other fact, is established by evidence, oral or written. It is not the essence of a will that it shall be in writing; the essence is the declared purpose or intention, and this is established, as any other fact in law, by witnesses, or by the written declaration of the testator. In Bacon's Abridgement, a will, therefore, is defined to be, "A declaration of the mind, either by word or writing, in disposing of an estate; and to take place after the death of the testator."[28] A distinction was formerly made between a will and a testament; when lands or tenements were devised in writing, it was by will, and when goods and chattels were disposed of, it was by testament; but this distinction is now lost sight of, and the words are used indiscriminately, and we speak of the posthumous disposition of an estate, of whatever kind, as by last will and testament. Since peculiar perils and obstacles beset a man in his last hours; as much uncertainty and contention have arisen as to his precise purpose and declaration; and as there is a strong and very unusual temptation and opportunity given to designing and evil persons who may surround him, to falsify his intention to their advantage, it has seemed politic and wise to legislatures to prescribe a mode by which wills shall be evidenced and proved, to guard against fraud, imposition, and uncertainty. Hence, in the statutory enactments of every State, there are precise and strict rules laid down on the subject; and as writing is the most reliable and permanent mode of conveying the proof of a person's intention; and as it is now an acquirement possessed by almost every one, it is now the mode insisted on for embodying the declaration of a man's last will and testament, with rare exceptions as to verbal wills. We may, therefore, speak of wills in two great classes, viz., _Verbal_ and _Written_. SECTION 1.--NUNCUPATIVE WILLS. A nuncupative will is a verbal declaration of a person's intention as to the manner of disposition of his property after death. Formerly, at an early period, this must have been the usual kind of will in general use, when writing was a rare acquirement. Before the Statute of Frauds, it was of as great force and efficacy (except for lands, tenements, and hereditaments) as a written testament.[29] But as wills of this kind were found liable to great impositions and frauds, and occasioned many perjuries, that statute placed them under several restrictions, except when made by "any soldier in actual military service, or any mariner or seaman being at sea."[30] The imminent dangers, the diseases and sudden death which constantly beset soldiers and sailors; the utter inability oftentimes to find the time or the means to make a deliberate or written testamentary disposition of their effects, seem at all times to have made them a proper exception to the operation of a rule which the wisdom of later times has found it expedient, if not absolutely obligatory, to apply to all others. Hence, almost all governments grant this immunity to this class of persons. It was a peculiar privilege of the Roman soldiers, who were exempt when on a military expedition from complying with the strict testamentary law; the privilege, however, was only well established under the Empire, and after a time it was extended to the naval service, and officers, rowers, and sailors were, in this respect, esteemed as soldiers.[31] Another class of persons formerly permitted to make this kind of will were those who were at the point of death, or as it was termed, _in extremis_. And in many States this privilege is still granted this class. For a long period, as far back as a little before the time of Henry VIII, this kind of will was confined to this class of persons.[32] A writer of the time of Henry VIII says: "This kind of testament is made commonly when the testator is now very sick, weak, and past all hope of recovery." Chancellor Kent says: "This has been the uniform language of the English law-writers from that time to this day, so that it has become the acknowledged doctrine, that a nuncupative will is only to be tolerated when made _in extremis_."[33] The danger of collusion and conspiracy among those who surround a feeble dying person has taught legislatures to be very strict in placing adequate safeguards around such a one. It was a gross abuse of such an opportunity, in a remarkable case in the twenty-eighth year of Charles II, that led, it is supposed, to the enactment of the Statute of Frauds in the next year. The case was this:[34] Mr. Cole, at a very advanced age, married a young woman, who during her lifetime did not conduct herself so as to make the old man's life a placid or a happy one. After his death she set up a nuncupative will, said to have been made _in extremis_, by which the whole estate was given to her, in opposition to a will made three years before the testator's death, giving £3,000 to charitable uses. The nuncupative will was proved by nine witnesses; and after examination in the course of a trial, it appeared most of the witnesses were perjured, and Mrs. Cole was found guilty of subornation. It was then that Lord Nottingham said: "I hope to see one day a law that no written will should be revoked but by writing." He was gratified in seeing such a law the succeeding year. Upon this, Chancellor Kent observed: "I should hope to see one day a law that no nuncupative will should be valid in any case."[35] The case in which these words were used was a very curious one, and will be worth while to be stated somewhat fully. We can give no better statement of it than the admirable summary given by that eminent jurist in his opinion, where the subject of nuncupative wills received a thorough discussion. The will was made by a William Jones on the 11th April, 1820, and was as follows: "I now say, as I have repeatedly said before, that I leave all the property I am possessed of to Mary Hazleton; I do this in consequence of the good treatment and kind attention I have received from her during my sickness. She is worthy of it. No other person shall inherit my property. I wish you all in the room to take notice of this." The will was witnessed by four witnesses. It was finally declared invalid, because it did not appear the testator made it in his last extremity, and as there were so many evidences of undue influence. The facts were as given by Kent: "William Jones was an Irishman by birth and a religious Catholic by profession. He was born in the county of Dublin, in Ireland, and received a school education about thirty years before his death, and which carries us back to the year 1790. He had then living parents, brothers, and sisters, and he was the youngest of the family. He was apprenticed to a house carpenter in the city of Dublin, and served a regular apprenticeship of seven years. When this service expired, he worked as a journeyman for nine or twelve months, and then emigrated to the United States. This brings us in the history of his life to the year 1798, and perhaps that fact may enable us to give some probable solution of the only circumstance that seems (if we except the will) to cast any shade over the memory of this man. I allude to the change of his paternal name, _O'Connor_, for that of _Jones_. It does not appear precisely when he changed his name, but I refer it back to that period as the probable time, and presume that he and his family were more or less implicated in the rebellion in Ireland in 1798, in consequence of an ill-fated attempt to effect a revolution in that kingdom. It is probable that he may have emigrated for safety; and, for greater safety, laid down the name of _O'Connor_, which was then memorable in the Irish annals, on the side of the unfortunate. But be this conjecture as it may, we find him first at New York, then for two years at Savannah, then living for twelve or fourteen years in Cuba, and learning the Spanish language, and where he probably made his fortune. He is next traced on his return to the United States to the cities of Baltimore, Philadelphia, and New York; and in all of them he seems to have had business, pecuniary concerns, and friends. These are the few and imperfect sketches of his biography to be selected from the case, before we find him rich in the fruits of his enterprise, but sick with a disease of the liver, at the boarding-house of Mrs. Fox, in Cherry street, in New York, the latter end of March, 1820. "Jones, while at the house of Mrs. Fox, claimed to be worth altogether $65,000 in property existing in New York, Philadelphia, Baltimore, and the Island of Cuba; and to show that this claim had pretty fair pretensions to truth, there were actually found at his lodgings, at his death, bank-books showing deposits to his credit in one or more banks of New York to between thirteen and fourteen thousand dollars. "He had been sick at Mrs. Fox's about five weeks when he is said to have made the will now under consideration. During that time he had one Ellen Taylor, a colored woman, for his hired nurse; and there was a Mrs. Hazleton, who had rooms and boarded in the same house, who also acted as his nurse. Whether Jones ever saw or heard of Mrs. H. before he came to board there, does not appear, nor have we in the case any distinct lineaments of the character which Mrs. H. sustains, or the business or purpose of her life. She was able, all at once, and without any remarkable display of goodness or any adequate cause, to gain a wonderful ascendancy over the affections of this sick man. If her story be true, and the will genuine, she obliterated from Jones' breast the sense of friendship, the charities of religion, the deep-rooted traces of national affection, every tender recollection of the ties of blood, of his natal soil, of the school-fellows of his youth, of father and mother, brother and sister, relative and friend. He was persuaded at one nod to pour the accumulated treasures of his varied life into the lap of this mysterious woman--the acquaintance of a day!" From the manifest evils arising from this kind of wills, legislatures are not disposed to favor them; they seem only adapted to a ruder condition of society than the one we now live in. So, in the Statute of Wills in England, passed in 1838,[36] such wills are declared invalid, except as to soldiers and sailors; and the same is the case in nearly all our American States. But a few States still permit such wills made by persons _in extremis_, and bequeathing a limited amount of property. They are not permitted in New York, except, as in the English statute, to soldiers and sailors on actual service.[37] They are in California of property to one thousand dollars, and then must be proved by two witnesses, one of whom is requested by the decedent to be a witness; and the will must be reduced to writing within thirty days after death, and proved within six months after the same was uttered.[38] Even as to soldiers and sailors great strictness is required. In the first place, soldiers must be on actual military service. The military testament was first conceded by Julius Cæsar to all soldiers, but it was subsequently limited by Justinian to those engaged on an expedition;[39] and our courts in modern times have invariably adhered to the principle that there must be actual warfare. In this country, the cases upon the subject of nuncupative wills are considerably numerous since the last civil war. In a late case, where the deceased, a soldier, had been duly mustered into the United States service during the late civil war, and while in camp wrote a letter to a friend, directing the disposition of the amount due upon certain securities left in his hands among the brothers and sisters of the deceased, as the holder should think proper, and that all his other property should go to his wife, naming her, she paying his debts, and soon after started on an expedition or raid against Richmond, in which he was made prisoner, and soon after died in prison, the will was held good as a nuncupative one, and entitled to probate.[40] Sailors must be actually serving on shipboard. Thus, in the case of Lord Hugh Seymour, the commander-in-chief of the naval force at Jamaica, but who had his official residence on shore, it was held that he did not properly come within the exception, for that he was not "at sea" within the meaning of that expression, and that a nuncupative will made by him was not valid.[41] It was held in New York that a person employed as cook on board of a steamship should be classed as a mariner at sea, and therefore entitled to make a nuncupative will.[42] SECTION 2.--WRITTEN WILLS. The statute law of almost every civilized state at the present time requires a will of real and personal property to be in writing, with the exceptions noticed in the first section of this chapter. A will, wholly written by the testator, signed and dated by him, is called a _holographic will_, and is, in some States, valid, without the usual formalities required to prove wills.[43] The law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form, or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and if this appears to be the nature of its contents, the instrument is regarded as a will, if otherwise witnessed according to the mode pointed out in the statute. Professional practice, and long-continued custom, however, have established some technical forms of expression. As if to appropriately mark the solemnity of the act, and to declare a consciousness of it, it was the usual way to commence a will, and it is still observed, with--"In the name of God, Amen"; but this expression is now considered too formal and quaint, and of late the practice is to introduce a will in a less formal manner, thus: "I, John Doe, of ----, in the State of ----, do hereby make and publish this my last will and testament, hereby revoking all former wills by me at any time made." It was also customary to refer to the bodily and mental condition of the testator, as, "I, A B, being of infirm health, but of sound mind and disposing memory, and aware of the uncertainty of life, do now make, etc."; but this, to a great extent, is abrogated. Usually, the first direction given is as to the payment of debts and funeral expenses; but this is merely formal and unnecessary, as the law would have this done in any event; but it may be of use to show that the subject of the testator's debts was brought distinctly to his mind, and may thus aid in the construction of the will.[44] A very general clause in a will, without many exceptions, is one appointing one or more executors. Formerly, it was considered indispensable to the validity of a will that an executor should be named in it;[45] but that opinion no longer obtains either here or in England;[46] and now where the appointment of an executor is omitted in a will, administration is granted to a person with the will annexed. Many may have an idea that a formal will requires a seal, no doubt from the ordinary phraseology at the close of a will, "Signed, sealed, and published," but there is no State we know of where a seal is now necessary except in New Hampshire.[47] The use of a seal, however, will be required when a testator exercises a power of appointment in a will derived from any prior will or settlement;[48] but if the seal be omitted it will not render the will void; it will only render the execution void as far as the power is concerned. For instance: if, by an instrument under seal, a power is given to a married woman in the nature of an appointment to devise certain real estate, in such a case she will be required to execute the will with a seal, if the appointment is to be a valid one. The ecclesiastical courts in England and the courts here do not confine the testamentary disposition to a single instrument, but they will consider papers of different nature and forms, if not inconsistent, as constituting altogether the will of the deceased.[49] It is immaterial in what language a will is written, whether in English, or in Latin, French, or any other tongue.[50] While a will is to be in writing,[51] the law insists upon certain solemnities in its execution to properly evidence the testator's act and intention, without which the will is absolutely void; and courts very strictly construe these requirements, because they are remedial, in order to guard against very grave perils and mischief. The Statute of Frauds required that all devises and bequests of any lands or tenements should be in writing, signed by the testator, or by some other person in his presence, and by his express direction, and subscribed in his presence by three or four credible witnesses. This statute has been the model on which all our statutes, relating to the proof of wills in the different States, were framed. Some have copied it literally, others have adopted it with certain necessary modifications. Questions had arisen under this statute as to what the legislature meant by the word "signed"; namely, whether it should be construed in its strict sense, and by analogy to other instruments, or whether it should be liberally expounded and left open as a question of construction upon intention to be inferred from the facts and circumstances attending each particular case. The construction had been, as well in the courts of England as here, that the writing of the name of the testator in the body of the will, if written by himself, with the intent of giving validity to the will, was a sufficient _signing_ within the statute.[52] Thus the old law stood, and the mischief of it was, that it was not necessary for the testator to have adopted the instrument after it was finished, by actually signing the same at the close of the will, and it did not denote clearly that he had perfected and completed it. To remedy this evil, and to prevent future controversy as to whether a will signed by the testator in any other part of the instrument than at the _end_, denoted a complete and perfect instrument, statutes have been passed in some States requiring the will to be _subscribed_ by the testator at the end thereof. The statute passed in England in the first year of Victoria, requires that the will "shall be signed at the foot or end thereof by the testator, or by some other person, in his presence and by his direction." Notwithstanding the language of the Statute of Frauds as to _signing_, without indicating how or where, is still retained in the statutes of the majority of our States, except in Arkansas, California, Connecticut, Kentucky, and New York, where it is to be _subscribed_ at the end, and in Ohio, Pennsylvania, and West Virginia, where it is to be _signed at the end_ of the will. The requirements of the New York statute are as strict, if not the strictest, of any of our States; and those of California are substantially the same by the recent civil code of that State.[53] The statute is in its terms perfectly explicit. Four distinct ingredients must enter into and together constitute one entire complete act, essential to the complete execution of the instrument as a will. 1. There must be a signing by the testator at the end of the will; 2. The signing must take place in the presence of each of the witnesses, or be acknowledged to have been made in their presence; 3. The testator at the time of signing and acknowledging the writing shall declare it to be his last will; and 4. There must be two witnesses who shall sign at the end, at the request of the testator.[54] There must be a concurrence of all these four requisites to give validity to the act, and the omission of either is fatal. Neither of the four, which united make a valid execution of a will, may be done at a different time from the rest. If the instrument has in fact been signed at a previous time, then the signature must be acknowledged to the subscribing witnesses, which is deemed to be equivalent to a new signing of the instrument.[55] They cannot all be done at the same instant of time, for that is impracticable; but at the same interview, one act immediately following the other, without any interval, and without any interruption to the continuous chain of the transaction.[56] We shall now refer to cases bearing on each of these requisites; and it will be seen that while the courts have with commendable firmness insisted upon a rigid compliance with the formula prescribed by the statute, they have never held that a literal compliance was necessary. No particular form of words is required to comply with the statute. The only sure guide is to look at the substance, sense, and object of the law, and with the aid of these lights endeavor to ascertain whether there has been a substantial compliance. It is sometimes still a matter of controversy as to what may be considered a subscription or signing of the will at the end or foot thereof. In Tonnele v. Hall,[57] the writing of the instrument propounded for probate commenced on the first of several sheets of paper stitched together immediately below a margin, in this form: "In the name of God, Amen. I, John Tonnele, of the City of New York being of sound mind and memory, and considering the uncertainty of life, do make, publish, and declare this to be my last will and testament, in manner and form following, that is to say,"--and was continued on that and the four succeeding sheets. At the end of one of the sheets was the signature, and following was the usual attestation clause, signed by three witnesses. The next sheet was entirely blank, and was succeeded by a sheet on which was written, "Map of the property of John Tonnele in the Ninth and Sixteenth Wards, etc." And also written on the same, "Reduced map on file in the Register's office in the City of New York." The map indicated the position, by numbers, etc., of various lots of land in the City of New York which the will purposed to dispose of, but it was not signed by the testator nor by the witnesses. In several clauses of the will devising the real estate, reference was made to the aforesaid map; but not to the _copy_ of the map annexed. The point taken in opposition to the will was, that the execution of the instrument was not in conformity to the first and fourth requisites of the statute; because, as was insisted, it was neither _subscribed_ by John Tonnele, nor signed by the witnesses at the _end_ of it. It was contended, that as the map annexed should be regarded as a component part of the instrument, at the time of its execution, and as it was written on the last sheet of the papers composing the instrument, it was necessarily the end of the instrument, where the subscription by the testator and the signing of the witnesses should have been made. It was held by the Court of Appeals that the will was subscribed by the testator _at the end of the will_, within the meaning and intent of the statute, and that the execution thereof was valid. In the case of the will of Catharine Kerr before the Surrogate of New York,[58] the closing portion of the will and the signature were as follows: "To the children of Mary Dow, residing in Ireland in County Kilkenny, Give and bequeath two hundred dollars to be equally divided between them. If there be a balance, my executors will divide it among my relations that are not herein mentioned. CATHE{RIN} KEER. "I hereby appoint Mich'{l Phelan} of 2nd st., and John Kelly of 9th. st., as my executors to this my last will and testament. Witnesses, R. KEIN, MATTHEW M. SMITH." "I hereby order my executors to pay all my lawful and debts & funeral expenses--should it please the Almighty now to call me. This they will do before paying any legacy above mentioned. CATH{E} KEER." There was a question as to the genuineness of the subscription, the two witnesses calling her Keer, and the two subscriptions being of that name, her Christian name, Catherine, being abbreviated, whilst her real name was Kerr; and several previous papers were produced, in which her name, proved to have been signed by herself, was invariably written Catherine Kerr, in full. The Surrogate held that the form of the will was fatally defective, because the will was not subscribed by the testatrix and signed by the attesting witnesses at the end, in conformity with the requirements of the statute. The next requisite is that the testator shall sign the will in the presence of the witnesses, or acknowledge his signature to them, if it has been signed previously. The New York statute does not require the witnesses to sign in the presence of the testator, as the California statute does.[59] Hence, a difference of opinion has arisen as to whether the New York statute is satisfied if a testator signs a will at one time, and afterwards acknowledges it to the witnesses separately at different times. There is an opinion that the witnesses must be present at the same time, and when the testator subscribes or acknowledges the instrument;[60] but it has been laid down, in the case of Butler v. Benson,[61] that a separate acknowledgment is sufficient. However that may be, no careful practitioner will ever have a will executed except when both the witnesses are present; and the attestation clause generally expresses that the witnesses signed in the presence of each other. In Whitbeck v. Patterson,[62] William Patterson, the testator, signed the will in the presence of one Hughes, who had prepared it for him, but who did not sign it as a witness. The two then went to a store, where they found the three persons who signed as witnesses. These witnesses agreed in the facts that Patterson and Hughes came into the store together, and, as they came in, Hughes spoke to them, saying that he had a paper that he wished them to sign; that it was Patterson's last will and testament; that Hughes thereupon read the attestation clause in the hearing of Patterson, as well as the witnesses, and then asked Patterson if that was his last will and testament, to which he replied that it was. One of the witnesses further swore that he thought the question was then asked him (the testator) about his signing the will, and the reply of Hughes was, that "he signed it up to my house"; to which Patterson said "Yes." This, however, was not recollected by the other witnesses, and Hughes declared, with a good deal of confidence, that nothing was said in the store about his having signed it. The Surrogate refused to admit the will to probate, on the ground that the testator had not subscribed the will, or acknowledged the subscription thereto in the presence of the attesting witnesses; but, on appeal, the decree of the Surrogate was reversed, and the court held the acknowledgment was sufficient, because the testator was present and assented when Hughes said he signed it. The third subdivision of the statute provides that the testator, at the time of making the subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. This safeguard was considered necessary, in view of the fact that persons had been imposed upon, believing they were executing a different paper, when they had been induced to sign a will. Only a few States, however, insist on this formality; besides, New York, California, New Jersey,[63] and North Carolina require a publication. There cannot be any uniform, precise mode to make this declaration; it is sufficient if the testator fully and intelligently communicate his knowledge of the instrument being his will to the witnesses; so that he cannot be mistaken as to its nature, and that it shall be so understood by the witnesses.[64] The minds of the parties must meet; each must understand the particular business he is engaged in. And this mutual knowledge must arise from something said, done, or signified contemporaneously with the execution of the instrument.[65] It will not suffice that the witnesses have elsewhere, and from other sources, learned that the document which they are called to attest is a will; it must be a clear and unequivocal communication of the fact from the testator himself in some manner to them at the time.[66] The leading case on this provision of the statute is that of Remsen v. Brinckerhoff,[67] determined in the court of last resort in 1841. This case arose in the Surrogate's Court in New York, on a proceeding to prove the will of Dorothea Brinckerhoff. The will was signed by the testatrix in the presence of two witnesses. The attestation was the usual one signed by the witnesses, showing that the full requirements of the statute were observed. One of the witnesses, on the trial, testified that the testatrix executed the will in his presence by writing her name, and acknowledging it to be her hand and seal for the purpose therein mentioned; that he subscribed in the presence of the testatrix; that the will was not read to the testatrix, nor did he read it; he read the last line of the attestation. Nothing passed between her and him as to its being a will. The other testified that he saw the testatrix sign the instrument. She did not say it was her will; but acknowledged her signature for the purposes therein mentioned. She requested him to sign his name as a witness, and directed him to write his place of residence. He testified further that he never saw the testatrix before that time, and remained in the room only no more than ten or fifteen minutes. On this evidence the Surrogate admitted the will to probate. Some of the heirs and next of kin appealed to the Circuit Judge, who confirmed the decree of the Surrogate. They then appealed to the Chancellor, who reversed the decree of the Surrogate. Finally, the case was taken to the Court of Errors, and the decision of the Chancellor was affirmed, that the instrument was invalid, for want of a declaration, at the time of subscribing or acknowledging the subscription, that the instrument was a will. A late case, decided in the New York Court of Appeals in 1875, will henceforth be an authority on this point. It was the case of Thompson v. Seastedt.[68] The case arose on an appeal from the Supreme Court, reversing a decree of the Surrogate of New York City, refusing to admit to probate the will of Eliza Seastedt, on the ground that it was not formally declared by her. It appeared that the will was drawn by direction of the testatrix as her will, and read over to her as such; that she appeared to read it over herself, remarked it would do, and signed her name to it, and procured two of the witnesses to subscribe their names to it. The witness who drew the will testified that he was asked to go to the house to draw it, and was a witness to it, although not directly asked to sign it. The second witness said that he heard the decedent ask the first witness to sign it as a witness; and her husband swore that she asked both of the other witnesses to sign it. The second witness also said that she asked him to witness the signing of her name, and the making of her will, and her husband said she took it after all had signed it, and put it in an envelope. It also appeared that the testatrix signed the will in the presence of the witnesses, and that they signed it in her presence, and in the presence of each other; also, that the wording of the instrument declared it to be her last will and testament, and that she declared it to be such at the time of her subscribing. The Supreme Court held that the proof as to the execution, witnessing, and publication was sufficient to entitle the will to probate; that, although the testatrix did not, in words, declare the instrument to be her will, she treated it as such, and designed the witnesses to understand it to be such, and that this was equivalent to such a declaration, and was sufficient to satisfy the requirements of the statute. On appeal, the Court of Appeals affirmed this judgment, in an opinion by Folger, J. This must be deemed a satisfactory and equitable decision, and will have a tendency to check the vexatious and expensive litigation so ruinous to heirs and to an estate, whenever contestants think there was a disregard of the slightest technical requisites in the execution of a will. The fourth and last requirement of the statute in New York is, that there must be two witnesses who shall sign at the end at the request of the testator. In the majority of our States, only _two_ witnesses are required to properly attest a will. There are, as far as we can make out, about ten States that require _three_ witnesses. The New England States require three witnesses, and so do Florida, Georgia, Maryland, South Carolina, and Mississippi, but in the last only one witness is required for a will of personal property. It is observed that the New York statute does not in terms require the witnesses to sign in the presence of the testator or in the presence of each other, as the most of our States do: as, for instance, California, Connecticut, Georgia, Massachusetts, and many others. The former statute in the State required a signing _in the presence of the testator_, but these words having been omitted from the Revised Statutes, it has been decided in two adjudicated cases that it is not necessary that the attesting witnesses should sign their names in the presence of the testator in the strict sense of the requirement of the former law.[69] In Ruddon v. McDonald, the testatrix subscribed the will in a small bedroom, and the witnesses signed in an adjoining room. The door between the two rooms was open, but the place where the witnesses signed was in a part of the room where the testatrix could not see the witnesses signing without putting her head down to the foot of the bed, if she could then; and they did not look to be able to say whether they could see her face at the time or not. In such States as require a signing in the presence of the testator these wills would not be entitled to probate. Even in these States, a strict literal compliance is not required; the courts adopt what is termed a doctrine of a constructive presence; which in plain language is just this--if a testator could see, and won't see, he should see, and must be supposed to have seen. There never were finer distinctions made on any matter in law than just on this point; indeed, they are more nice than wise, and hair-splitting was never carried to a finer point. Thus, where a testator lay in a bed in one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that and the door of the room where the testator lay were open, so that he might see them subscribe their names if he would, and though there was no positive proof that he did see them subscribe, yet that was sufficient under the statute, because he might have seen them; it shall therefore be considered in his presence.[70] But where the attesting witnesses retired from the room where the testator had signed, and subscribed their names in an adjoining room, and the jury found that from one part of the testator's room a person, by inclining himself forward, with his head out at the door, might have seen the witnesses, but that the testator was not in that part of the room, it was held that the will was not duly attested.[71] It would almost seem, from these and other decisions, that the validity of the act depended upon the range of the organs of sight of the devisor, or upon the agility of his movements; whether he were able to turn his body to the foot of the bed, or stretch his neck out of the door. In Georgia, the testator must have been in such a position as to be able to see the witnesses sign, to constitute presence.[72] And where the witnesses did not sign in the same room where the testator was, it raises a presumption that it was not in his presence; but if the jury find that he might have seen it, and knew it was going on, and approved it, it is good.[73] The whole requirements of the statute are generally embodied in an attestation clause which is signed at the end by witnesses. This is no part of the will, and might be omitted without endangering the will, provided the witnesses, whose names are subscribed, can testify as to the observance of the various requirements; but it is unsafe to trust to the memory of witnesses, and almost always the attestation clause is appended. In those States where no subscribing is required, the following is a good form: "Signed, sealed, published, and declared, by the said A B, the said testator, as and for his last will and testament, in the presence of us, who, in his sight and presence, and at his request, and in the sight and presence of each other, have subscribed our names as witnesses thereto." The following is suited to the requirements of the Revised Statutes of New York: "Subscribed and acknowledged by the testator, A B, in the presence of each of us, who have subscribed our names as attesting witnesses thereto at the request of the said testator. And the said testator, A B, at the time of making such subscription and acknowledgment, did declare this instrument so subscribed to be his last will and testament." A more general form is the following: "Signed, sealed, published, and declared by the testator, to be his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses." CHAPTER III. TESTAMENTARY CAPACITY. As a general rule, this capacity exists; but there are certain conditions which preclude the exercise of this privilege, because of an inability to exercise it either safely, wisely, or intelligently; and these conditions may be, with respect to age, physical or mental incapacity, and coverture. SECTION 1.--INCAPACITY AS TO AGE. The age at which a person is permitted to exercise this right varies with the nature of the property, whether it be real or personal property. Under the old common law, a male was qualified to make a will of personal property at fourteen, and a female at twelve;[74] and this was the rule in England until 1838.[75] This was the rule of the Roman law; but now it is changed by statute both in England and in this country. In New York, males require to be of the age of eighteen, and females of the age of sixteen, before they can make a will of personal property.[76] In many of our States, the same age is required for making a will of personal as for real property; and as a general rule, the age required is twenty-one; but in three of our States, California, Connecticut, and Nevada, a person of the age of eighteen is qualified to make a will of personal and real estate. In some, a female attains her majority for this purpose earlier than a male person, as in Illinois, Maryland, and Vermont, where a female is qualified at eighteen. With regard to the reckoning of the period of a person's majority, there is a novel and exceptional mode in law. Thus, if a person be born on the first of February, at eleven o'clock at night, and the last day of January, in the one-and-twentieth year, at one o'clock in the morning, he makes his will and dies, it is a good will, for he, at the time, was of age. This rule, first laid down by Lord Holt,[77] is well established by sound authority.[78] With regard to which, Redfield remarks: "We feel compelled to declare that the rule thus established in computing the age of capacity, seems to us to form a very singular departure, both from all other legal modes of computing time, and equally from the commonly-received notions on the subject."[79] SECTION 2.--PHYSICAL OR MENTAL INCAPACITY. The physical incapacity of the deaf and dumb formerly disqualified them from making a will. Blackstone lays down the rule:[80] "Such persons as are born deaf, blind, and dumb, as they have always wanted the common inlets of understanding, are incapable of having _animum testandi_, and their testaments are therefore void." And in Bacon's Abridgment,[81] it is said: "A man who is both deaf and dumb, and is so by nature, cannot make a will; but a man who is so by accident may, by writing or signs, make a will." But since this class of persons have, of late, been brought to a considerable intelligence by the humane efforts of worthy men to communicate knowledge to them, there is no longer any reason or sense in excluding them from the testamentary privilege. However, in their cases, greater circumspection is needed in communicating with them as to their intention, and a stricter regard is paid to the observance of the requirements of execution. The question was carefully examined by the Surrogate of New York,[82] with the following results: The law does not prohibit deaf, dumb, or blind persons from making a will. Defects of the senses do not incapacitate, if the testator possesses sufficient mind to perform a valid testamentary act. The statute does not require a will to be read to the testator in the presence of the witnesses; but it is proper to do so when the testator is blind and cannot read. In such cases, the evidence must be strong and complete that the mind accompanied the will, and that the testator was in some mode made cognizant of its provisions. This may be established by the subscribing witnesses, or by other proof. So, also, it seems a drunken man, who is so excessively drunk that he is deprived of the use of his reason and understanding, cannot make a will during that time; for it is requisite, when the testator makes his will, that he be of sound and perfect memory; that is, that he have a competent memory and understanding to dispose of his estate with reason.[83] We come now to treat of that incapacity which gives rise to most frequent and difficult litigation, and upon which judicial discrimination is most generally exercised--the incapacity of those who are of unsound mind, or persons _non compos mentis_. There is no investigation in the whole domain of law that is attended with so many lamentable phases, where the foibles, indeed, the ludicrous side, of human nature, are more exposed; for it happens that those who will most carefully and tenderly screen a man's weaknesses, vagaries, and eccentricities whilst he is living, will, if a contest takes place in which they are interested, after his death, most readily reveal, in all their nakedness and boldness of outline, the infirmities and superstitions of the deceased.[84] As a principle of law of universal application, a person of unsound mind is incompetent to make a valid disposition of his property, either before or after his decease, except during a lucid interval. The only difficulty is, to determine exactly and unerringly the particular persons who may be thus classed, and to agree upon some mode or standard by which we can class such unfortunate people. Here is the difficulty; for all men do not view a person's acts in the same manner, and are not similarly impressed by them. What, to some, would infallibly be the exhibitions of a diseased mind, may, to others, be the harmless frolics of a person of odd and eccentric manners. And, just for this reason, the decisions of courts have fluctuated, and, on this subject, have been the least satisfactory. When we lay down a definition of insanity, and agree upon it, we are next met with the further difficulty, to bring the facts of a person's life or actions within it, and so to classify them. What is the definition of a person _non compos mentis_? The law has to depend on medical writers for this information. Taylor, in his Medical Jurisprudence, gives us a definition as follows: "The main character of insanity, in a legal view, is said to be the existence of _delusion_; _i. e._, that a person should believe something to exist which does not exist, and that he should act upon this belief." Another definition is this: "Where there is delusion of mind, there is insanity; that is, when persons believe things to exist which exist only, or, at least, in that degree exist only, in their own imagination, and of the non-existence of which neither argument nor proof can convince them: these are of unsound mind."[85] The rule of the common law, until within the last hundred years, was, that it required that a person should be absolutely a lunatic, that there should be entire alienation of mind, in order to incapacitate him from making a will; and there was no such theory then as partial insanity, or _monomania_, which the law takes notice of in modern times. The rise and acceptance of this theory mark an epoch in legal adjudications; it is certainly an advance in the science of law in the last century. The germ of this theory was first broached in the celebrated case of Greenwood.[86] In that case, Mr. Greenwood, a barrister, whilst insane, took up an idea that his brother had administered poison to him, and this became the prominent feature of his insanity. In a few months he recovered his senses, and was able to attend to his business, but could never divest his mind of the morbid delusion that his brother had attempted to poison him, under the influence of which (so said) he disinherited him. On a trial in the Court of King's Bench upon an issue _devisavit vel non_, a jury found against the will; but a contrary verdict was had in another court, and the case ended in a compromise. On the theory of the common law, as it then stood, this will being made in a lucid interval should have been valid.[87] The case in which the law first sanctioned the view of partial insanity, which is also one of the landmark cases therefore, was the case of Dew v. Clark,[88] which excited great interest, and received a very thorough examination by one of the ablest judges of modern times, Sir John Nicholl. It was proved that the testator regarded his daughter as invested with singular depravity, a peculiar victim of vice and evil, the special property of Satan from her birth, and in consequence disinherited her. The syllabus of the case presents in so clear and concise manner the pith of the decision, that it will be useful to quote it: "Partial insanity is good in defeasance of a will founded immediately (so to be presumed) in or upon such partial insanity. If A, then, makes a will, plainly inofficious in respect to B, and _is proved, at the time of making it, to have been under morbid delusion_ as to the character and conduct of B, the Court will relieve by pronouncing this will to be invalid, and holding A to have died intestate." It is from this case, as a starting point, has arisen the theory of monomania, as applied to testamentary capacity. Henceforth a valuable and practicable rule was established, subsequently recognized and enforced in the best considered cases both in England and America--a rule not so much depending on precedent as it does on sound reason and argument. There must be two elements, co-existing, to afford sufficient ground for pronouncing a will invalid at the instigation of relatives and others, who deem themselves cut off from the bounty of a testator by his monomaniacal delusions. _First._ There must be a plainly inofficious will; or a will wanting in natural affection and duty. _Second._ There must be morbid delusion actually existing at the time of making, in respect to the persons cut off, or prompting the provisions of the inofficious instrument. This theory is now consistently followed in the courts of this country, and an examination of a few remarkable and historical cases will illustrate the application. It is thus adopted as a principle of decision in Seaman's Friend Society v. Hopper,[89] by Judge Denio: "If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, _so far as they are concerned_, under a morbid delusion, and delusion in that sense is insanity. If the deceased, in the present case, was unconsciously laboring under a delusion, as thus defined, in respect to his wife and family connections, who would have naturally been the objects of his testamentary bounty _when he executed_ his will, or when he dictated it, and the court can see that its dispository provisions were or might have been caused or affected by the delusions, the instrument is not his will, and cannot be supported as such in a court of justice." The same was the ruling in Leach v. Leach.[90] Still, there needs to be a careful limitation of this theory. If we were to undertake to class all those who exhibit aberrations of conduct in various directions of life, who labor under hallucinations, and a wild imagination in regard to certain matters, whose credulity or whims provoke our mirth as much as our astonishment, as possessing a diseased mind, we should class among such some of the most singularly gifted and acute minds of the world. We all know of numerous cases in which "Some one peculiar quality Doth so possess a man, that it doth draw All his effects, his spirits and his powers In their confluxions all to run one way." Hence we must distinguish between mere eccentricity and monomania. In monomania, a man is not conscious of entertaining opinions different from the mass of men, and refuses to be convinced of laboring, in any degree, under mental unsoundness; the eccentric man is aware of his peculiarity, and persists in his course from choice, and in defiance of the popular sentiment. A remarkable case of eccentricity, as the court determined, bordering very close on monomania, was in the case of Morgan v. Boys,[91] where the will was upheld, on the ground that there was no satisfactory proof of actual unsoundness of mind. The testator devised his property to a stranger, thus wholly disinheriting the heir, or next of kin, and directed that his executors should "cause some parts of his bowels to be converted into fiddle strings--that others should be sublimed into smelling salts, and the remainder of his body should be vitrified into lenses for optical purposes." In a letter attached to the will, the testator said: "The world may think this to be done in a spirit of singularity, or whim, but I have a mortal aversion to funeral pomp, and I wish my body to be converted into purposes useful to mankind." The testator was shown to have conducted his affairs with such prudence and ability, that, so far from being imbecile, he had always been regarded by his associates, through life, as a person of indisputable capacity.[92] Some wills have been refused probate upon the ground of a disgusting fondness for animals, evinced by the testators during their lives or in the testamentary act. In one case, the testatrix, being a female, unmarried, kept fourteen dogs of both sexes, which were provided with kennels in her drawing-room.[93] In another case, a female, who lived by herself, kept a multitude of cats, which were provided with regular meals, and furnished with plates and napkins. This strange fondness for animals, in solitary females, is not altogether unusual, and is not to be regarded as any certain indication of insanity.[94] We will now refer to three cases with some particularity, originating in the Surrogate's Court in New York, each of which is very curious and instructive, and in which we can perceive the application of the rule regarding monomania. The first is the case of Thompson v. Quimby.[95] There were several reasons assigned by the contestants for their attack upon Mr. Thompson's will. Among them was the allegation "that the decedent was laboring under delusions amounting to insanity, and had not a disposing mind during the preparation, or at the time of the execution of the will." The instrument was drawn and executed during his last illness, and but a short time before his death. It was a voluminous document, and in it some provision was made for many of his descendants and kinsfolk, but the bulk of his large estate (about $400,000) was left for charitable or religious purposes. The testimony established that the testator was a believer in many superstitions of a vulgar character, and had held them with great pertinacity for many years. Among other delusions, it was claimed he believed in the black art; that he read and experimented upon the teachings of magic; was familiar with disembodied spirits; that he could work spells by formula or incantation; that he could cure diseases by amulets, or by papers bearing certain cabalistic inscriptions, which were to be worn about the person of the sufferer. He professed to know where Captain Kidd's treasures were secreted at Montauk Point, and actually, in company with another, undertook, by the aid of a divining rod, to locate the exact spot where the riches were buried. The experiment was a failure, because, as he declared, the charm under which he worked was broken by the inopportune remarks of his attendant. On one of these occasions he beheld the apparition of the devil (it seems, he had a belief in that personage) in the shape of a large bull, and spoke of this taurine manifestation of the father of evil with great seriousness. It was also alleged that he claimed to see ghosts; that he believed in the supernatural character and significance of dreams, in the philosopher's stone, in clairvoyance, spiritualism, mesmerism, magic glasses, and that he owned a whistle with which he could get everything he wanted. This, and much more to the same effect, was adduced as testimony to prove the insanity of the testator. On the other side, it was shown that the testator was a shrewd and intelligent man of business, clear and firm in his judgments. He was largely engaged in affairs; was connected with moneyed institutions; had succeeded in accumulating wealth by his own efforts; was associated in large and responsible enterprises of commerce, and was a regular attendant at Dr. Spring's Presbyterian church. While the Surrogate did accredit all that was deposed to, to sustain his insanity, he did arrive at this conclusion: "After making every possible reasonable allowance, I have no doubt that Mr. Thompson's mind was impressed with a sincere belief in many absurd notions. There seems sufficient evidence to show that he believed in mesmerism, clairvoyance, divining and mineral rods, dreams, and spiritual influences. He searched for the supposed deposits of Kidd, and ascribed his failure in two instances to the utterance of certain words by the operator. That he said he saw the devil in the shape of a bull seems to be well established. He believed likewise in the efficacy of cures for rheumatism, and fever and ague." Now, there was nothing whatever to connect any of these aberrations or infatuations of the testator with the provisions of his will, or with any one of them; they did not affect his testamentary disposition of his property; and there could not, therefore, have been a successful impeachment of his will on the ground of monomania, or partial insanity. The Surrogate decreed in favor of the will, and the Supreme Court sustained his decree. The next case we allude to, to further furnish an illustration of the rule, is the recent case of the Bonard Will. This case is of the very greatest importance, because it was argued with unusual skill and ability, and the testimony of the medical experts was sifted with a thoroughness and minuteness which elicited much instruction upon the more obscure phenomena of mental disease, and the facts revealed being such as to present very distinctly the question of the testamentary capacity of one who entertained singular tenets of a so-called faith. It will be advisable to state the facts somewhat fully. Louis Bonard, a native of France, died at the city of New York, in the Roman Catholic hospital of St. Vincent, on the 20th day of February, 1871. His life had evidently been an eventful one; for, while the testimony leaves in doubt much, and fails altogether to account for more of his antecedent history, it was known that he had been a traveler and a trader in South and Central America, and that he had been a dealer in sham jewelry; that he came to this country some time prior to the year 1855, and had brought with him money; that he had had losses, but at length became successful, and made investments in real estate, which enabled him to accumulate a fortune amounting, at the time of his death, to about one hundred and fifty thousand dollars. During the period of his residence in New York, he lived as a miser. He preferred the society and companionship of artisans and mechanics. He had no relatives in America nor in Europe, so far as was ascertained at the time of the trial, although it has since transpired that he has kindred in France. He was a man of erratic habits and singular beliefs, the latter of which seemed to intensify as his age advanced. He was a misanthrope; but was possessed of an unbounded affection for the brute creation. The evidence shows that he was a believer in metempsychosis; that he expressed the opinion that there might be an emperor in any animal he beheld; that he remonstrated with a person who suggested it would be humane to kill an injured kitten, because, he averred, there was a human soul in the animal's body. But he was a man dextrous and cunning in mechanical arts. He constructed machines for various purposes; he had mental resources likewise, and was a reader of books. The testimony, fairly viewed, showed that he railed at religion and priests; yet he died in the peace of the Roman Catholic Church, and in full communion.[96] There appeared also the fact that Mr. Bonard combined with his ardent love of animals an unbounded admiration for the benevolence of Mr. Henry Bergh. Memoranda were found among his papers which plainly showed he had some ulterior purpose concerning that gentleman. On the 11th of February, 1871, and while he was very ill, he made a will, bequeathing a portion of his property to two of his friends. On the 13th he made another, revoking the former, and left all his estate, real and personal, to the Society for the Prevention of Cruelty to Animals, of which Mr. Bergh was then, as now, the honored president. Here was a case, bold in its outlines, and presenting the salient features of a dogma of a heathen creed, constituting the avowed belief of a man who was born and who died in the Catholic faith. The opinion of the learned Surrogate is very able and interesting. He declares that the belief which Mr. Bonard held did not constitute insanity; that "if a court is to ascribe insanity to a man, or a class of men, constituting a sect according to his or their opinion or belief as to a future state, the logical deduction would necessarily be, that a major portion of all mankind, comprised in all other and different sects, were of unsound mind, or monomaniacs on that subject." The learned Surrogate then proceeds to consider the facts of this case, not as presenting one of general insanity, but as one in which the only appearance of unsoundness of mind consisted in the alleged monomania concerning the transmigration of souls. But he adverts to the fact that there was no connection necessarily of this belief with the terms of the will--that there was nothing _in the will_ to show that he held the opinions alleged any more than he was impressed with a belief in utter annihilation after death; nor was there any testimony to associate any provision of the will with a belief respecting the future condition of the human soul. These considerations, coupled with the further fact that "the testator had neither wife nor child, father nor mother, nor any known, near, or remote relatives living, or others on whom he was or felt himself under obligation to bestow his property," induced the court to sustain the will and overrule the allegation of mental incapacity. But let us suppose that, actuated by this belief, so uncommon in the present day, Mr. Bonard, having before his mind the fate of an itinerant cur running around the city, yelled and hooted at by idle lads, or stunned by a policeman's baton, had feared that his soul after death might pass into the body of such a hapless vagrant, and, under the impression of this possible fate, had provided a safe asylum where such unfortunates might find shelter from the pelting storm; and still further, that there were relatives who would appear and contest the will. Then we introduce quite a different and a new element into the consideration of the case. This would have indicated that the dispository provisions were intended by the testator for his own physical comfort and benefit in another sphere of physical existence, and would have furnished one and the principal element of that quality of unsoundness of mind which the law recognizes as such in cases of disputed wills. A late case in New York, decided in June, 1875, by the Surrogate, is another illustration. This was the case of the will of Harriet Douglas Cruger, made when the decedent was seventy-nine years of age, and in which she disposed of the bulk of her very large estate to the American Bible Society, and the Board of Foreign Missions of the Presbyterian Church. The history of the lady's life is an eventful and interesting one. Belonging to a family of wealth and standing, possessed of a large private fortune, and endowed by education and training with rare personal and mental accomplishments, she married early in life, and met with disappointment and misfortune; for it was soon followed by a separation, and a law suit which continued for over eight years, between herself and her husband. She had some nephews and nieces, to whom, at one time, she expressed an intention of leaving her property. In the year 1866, she suffered an injury which affected her mind, and then, at times, was undoubtedly a raving, excited lunatic. Her pastor, the Rev. Dr. Paxton, and her physician, Dr. Parker, testify to her condition then as one of undoubted lunacy. She had on her mind a delusion that the devil was bodily present under her bed, and because of this was in the greatest anxiety and terror. She told her pastor of it, and further communicated to him her intention to give, as a means for her soul's salvation, the most of her property to the religious and charitable societies of her church. He very prudently dissuaded her from this, properly instructing her that her salvation could not depend on such an act, and endeavoring to reason her out of her delusion, but to no purpose. In the fall of 1867, a will was prepared by Charles O'Connor, who was deceived as to her condition, giving her property to the societies named. The will was contested, and rejected, according to the established rule, that her insane delusion, acting on her mind at the time, affected the disposition of her property, and her will was clearly the offspring of such a delusion. In the case of Austen v. Graham,[97] the testator was a native of England, but had lived in the East, and was familiar with Eastern habits and superstitions, and professed his belief in the Mohammedan religion. He died in England, leaving a will, which, after various legacies, gave the residue to the poor of Constantinople, and also towards erecting a cenotaph in that city, inscribed with his name, and bearing a light continually burning therein. The court pronounced the testator to be of unsound mind, principally upon the ground of this extraordinary bequest, which sounded like folly, together with the wild and extravagant language of the testator, proved by parol. But on appeal it was held that as the insanity attributed to the testator was not monomania, but general insanity, or mental derangement, the proper mode of testing its existence was to review the life, habits, and opinions of the testator, and on such a review there was nothing absurd or unnatural in the bequest, or anything in his conduct at the date of the will indicating derangement, and it was therefore admitted to probate. SECTION 3.--SENILE DEMENTIA. The imbecility and feebleness of mind resulting from extreme old age is another cause of testamentary incapacity. Not that the law fixes a limit beyond which it is presumed a testator cannot exercise the testamentary disposition of his property intelligently; but it takes into account the well known, familiar instances of the loss of a person's memory and mental capacity, owing to the decrepitude of old age, and it accepts evidence in those instances where senile decay is alleged, as to the ability of an aged person to rightly and understandingly make his will. It was said, in a case in the Ecclesiastical Court in England, that "extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of the court."[98] But if a man in his old age becomes a very child again in his understanding, and becomes so forgetful that he knows not his own name, he is then no more fit to make his testament than a natural fool, a child, or a lunatic.[99] Courts are not disposed to accept every statement regarding the eccentric or weak movements of an old person as incapacitating such a one from making a will; on the contrary, there is every disposition to permit such a one, if not unmistakably enfeebled in intellect, or unduly influenced, to exercise a right that throws around one, at such a period, a dignity and power entitling them to the respectful regards of those who otherwise might not bestow upon them the attention due to the helplessness of old age. Chancellor Kent well expressed this leaning of courts, in the case of Van Alst v. Hunter.[100] He says: "A man may freely make his testament, how old soever he may be.... It is one of the painful consequences of old age, that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has, in protracted life, to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated." In the case of Maverick v. Reynolds,[101] it appeared that Mrs. Maverick, at the time of making the will offered for proof, was ninety years of age, and the probate was contested on the ground of testamentary incompetency and undue influence. It was shown that though the old lady did not remember the decease of her son and his wife, that she had sufficient intelligence to inquire about a certain one of her houses, its repairs, and the collection of the rent. One witness stated, as instances of her bad memory, that she forgot to pay her a dollar she had borrowed (a defect of memory not confined to old age); that she was in the habit of making statements, and afterwards denying she had made them, (not confined to old age, by any means) and that she would repeat the same questions after they had been answered. As an instance of the popular belief as to the capacity of old age, one witness said: "She had a bad memory; she was like other old people eighty years old; we consider them childish." Another witness, a lady, testified: "As long as I can bring my memory to bear, (a considerable time, it appeared) she has been childish. In my opinion, she was childish twenty-five years ago. She would sing childish and foolish songs, and tell foolish stories, which I considered unbecoming for a woman of her years, and the people would all laugh at it. She would talk sometimes of getting married, and would fancy she was making ready to be married." Against all this was the testimony of her pastor, Rev. Dr. Berrian, that her conversation was devout and pertinent, and he considered her a rather remarkable person for her age. Her physician also testified that he never observed any indication of unsound mind. Surrogate Bradford, in an able opinion, examined the evidence carefully and at length, and came to the conclusion to admit the will to probate. About her levity, he remarks: "It is worthy of remark, that persons attaining great age often possess a large degree of that cheerful and lively manner which characterizes youth, and which probably in them contributes greatly to a green old age, when others, not so old, and possessing less of this sprightliness and vivacity, appear more decrepid and stricken in years." As a principle of such cases, he announces: "Great age alone does not constitute testamentary disqualification, but, on the contrary, it calls for protection and aid to further its wishes. When a mind capable of acting rationally, and a memory sufficient in essentials, are shown to have existed, and the last will is in consonance with definite and well settled intentions, it is not unreasonable in its provisions, and has been executed with fairness." SECTION 4.--COVERTURE. The incapacity arising from coverture is to a great extent removed, and is gradually disappearing by remedial legislation, and for this reason it will not be necessary to treat of it at much length. There has been a tendency, for many years past, to remove the various property disabilities attaching to a married woman, and which were only to be justified, if then at all, by quite a different state of social organization from the present. Perhaps in no branch of the law have there been so many radical changes as in that part pertaining to the status of a married woman. A lawyer who had only in his mind the old common-law theory and rules, and had neglected to make himself familiar with modern legislation on this subject, would find himself strangely bewildered to define a married woman's rights and powers at the present time. Still, testamentary power did not come as soon as other rights. Even when the right to a separate and independent ownership of property was granted, the right to a testamentary disposition did not accompany it; as, for instance, in the State of New York, the right to retain for her own use any personal or real property coming to her during marriage, free from any control of the husband, was granted in 1848, but it was not until the next year she was empowered to dispose of it by will. Married women were excepted from the Statute of Wills of the reign of Henry VIII, which first allowed the disposition of real estate by will in England; but they frequently exercised testamentary disposition under a power given them when an estate was conferred upon them to their separate use.[102] They had what was called a _power of appointment_ by will, given by the donor of the estate, who was presumed to make the will through them as an instrument. They could only make a will of personal property by the consent of the husband under the old law,[103] and this is the case yet in a few States. In Massachusetts, a married woman can dispose of only half of her personal property by will without the consent of her husband;[104] and some such restriction exists in many of our States. The law of the American States in regard to the separate estate of the wife being exclusively under her control, and subject to any disposition on her part, is fast verging towards the rules of the Roman civil law, which allowed a married woman the same testamentary capacity, in all respects, as a _feme sole_.[105] In most of the more important and commercial States, the wife's right to dispose of her estate by will, both real and personal, is recognized to the fullest extent by statute.[106] The only general restriction is, that she cannot defeat, in her will of her real estate, her husband's right of curtesy. In some States, where the estates by dower and curtesy are abolished, this restriction, of course, cannot exist, as, for instance, in California. In New York, the power to dispose of her separate real estate by will seems to be unrestricted, for there is no limitation mentioned. But opinions differ on this question: some hold that the husband's right of curtesy is not cut off by the statute, while others hold that the whole unrestricted disposition of her property is given, and that she can defeat her husband's curtesy, even if issue be born and the estate become vested. The matter is in a little uncertainty, because we have not as yet an authoritative opinion of the highest court on the subject, since the remedial statutes were passed. We are inclined to think, however, that the wife can defeat her husband's right of curtesy by a disposition of her estate by will.[107] It would be impracticable to give the various statutes of the States on this subject, and, besides, it would be useless, as the changes are very frequent, and what would be correct for a State today may to-morrow be obsolete; we have only endeavored to give some general information on the subject. CHAPTER IV. LEGACIES. People generally understand quite well what is meant by a legacy in a will; but there is a popular meaning attached to the word, which differs from the strict legal meaning. Popularly, we suppose a legacy to be anything--property of any kind, whether real or personal--left to a person in a will; whereas, the strict legal meaning is, that it is a gift of money, or some particular thing, left to a person in a will. When real estate is given, we then term it a _devise_, in a legal point of view; but the word _bequest_ is a more general term, as it may designate either a legacy or a devise. In this chapter, we shall treat of legacies: 1. _As to their Quality_; 2. _Vested or Contingent_; 3. _Conditional_; 4. _Payment_; and 5. _The Person who may take_. SECTION 1.--AS TO THEIR QUALITY. Of legacies, there are two kinds--a general legacy, and a specific legacy; with the former is classed what is termed a pecuniary legacy. A legacy is general when it is so given as not to amount to the giving of some particular thing, or money, belonging to the testator. A legacy is specific when it is a bequest of a specified part of the testator's personal estate, which may be distinguished from all others of the same kind. Thus, for example, "I give a diamond ring" is a general legacy, which may be satisfied by the delivery of any ring of that kind; while "I give the diamond ring presented to me by A" is a specific legacy, which can only be fulfilled by the delivery of the identical ring mentioned; for the object is accurately referred to and described, and the legacy can only be satisfied by a delivery in _specie_.[108] Again, if the testator have many brooches and horses, and bequeath "a brooch" or "a horse" to B, in these cases it is a general legacy; for it is uncertain, from the description, whether any _particular_ brooch or horse was intended; so that the bequest may be satisfied by the delivery of something of the same species as that mentioned.[109] But a bequest "of such part of my stock of horses as A shall select, to be fairly appraised, to the value of $800," or "of all the horses which I may have in my stable at the time of my death," is specific.[110] A bequest to a wife in the following words: "I give and bequeath to my wife, A, the annual sum of £300 sterling each and every year during her natural life, in order that she may live in quiet and easy circumstances," and which, with other legacies afterwards given to her, was expressed to be in lieu of dower, was held to be specific. If there be an error in the description of the chattel intended to be specifically given, the mistake may be of such a nature as not to permit a failure of the specific bequest. If, therefore, A, having _one_ horse only, which is white, bequeath it to B by the words "my _black_ horse," the mistake is obvious and easily remedied, and the legatee will be entitled to the specific horse, although it be not of the color described; for there can be no doubt of that being the horse _intended_ for him, and the legacy will be specific.[111] If the testator had _two_ white horses of different values, and, intending one of them in particular for B, bequeathed it to him by the words, "my white horse," it is presumed that evidence is admissible to show which of the two horses was intended.[112] As respects the doctrine of specific bequests, the intention of testators upon this subject, as in every question of the construction of wills, is the principal object to be ascertained; and it is, therefore, necessary that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will. The intention must be clear, and courts in general are averse to construing legacies to be specific.[113] With respect to legacies for money, securities for money, debts, etc., under some circumstances even pecuniary legacies are held to be specific, as of a certain sum of money in a certain bag or chest;[114] or of £200, the balance due the testator from his partner on the last settlement between them;[115] but a legacy of "£400 to be paid to A," in cash, is a general legacy.[116] Stock or government securities, or shares in public companies, may be specifically bequeathed, where, to use the expression often applied, there is a clear reference to the "corpus" of the fund. Thus, the word "my," preceding the word stock or annuities, has been several times adjudged sufficient to render the legacy specific; as where the bequest is of "_my_ capital stock of £1,000 in the India Company's stock."[117] So a bequest of all the testator's right, interest, and property in thirty shares of the Bank of the United States of America is a specific legacy.[118] The distinction between these two sorts of legacies is of the greatest importance; for, in the settlement of an estate by executors or administrators, articles not specifically bequeathed are first to be sold to pay debts and other legacies; and, if there be a deficiency to pay debts, the general or pecuniary legatees have first to abate ratably, or contribute in proportion to the value of their individual legacies.[119] The principle on which this is done is, the presumed intention of the testator to give a preference to those legatees, by severing particular parts of his personal estate from the rest. But another distinction between them is, that, if the particular thing bequeathed happens, during the lifetime of the testator, to become extinguished, or in some way disposed of by him, which, in law, is called an _ademption_, the legacy fails, which cannot be the case with a general legacy; so that, though specific legacies have, in some respects, the advantage of those that are general, yet, in other respects, they are distinguished from them to their disadvantage.[120] The bequest of all a man's personal estate generally is not specific; the very terms of such a disposition demonstrate its generality.[121] But if a man, having personal property at A and elsewhere, bequeath all his personal estate _at_ A to a particular person, the legacy is specific; and, if there is a deficiency of assets to pay other legacies, such a legatee shall not be obliged to abate with the other legatees.[122] So, where the testator bequeaths the residue of all his personal estate _in the Island of Jamaica_, this is a specific legacy.[123] It has been held in Pennsylvania that a pecuniary legacy may be exempt from abatement, as in the case of a wife or child destitute of other provision, or where a legacy is given in lieu of dower.[124] SECTION 2.--LEGACIES VESTED OR CONTINGENT. A legacy is said to be _vested_ when the right to it, either in the present or in the future, is absolutely given to a person, and does not depend upon the happening of some event. It is _contingent_, if the payment of it is dependent upon the happening of some event; as, if a person shall marry, or attain a certain age. The cases establish the principle that contingent or executory interests, though they do not vest in possession, may vest in right, so as to be transmissible to the executors or the administrators of the party dying before the contingency on which they depend takes effect; but where that contingency is the endurance of life of the party till a particular period, the interest will obviously be altogether extinguished by his death before that period.[125] The general principle as to the lapse of legacies by the death of the legatee may be stated to be, that if the legatee die before the testator's decease, or before any other condition precedent to the vesting of the legacy is performed, the legacy lapses, and is not payable to the executors or the administrators of the legatee.[126] But this general rule may be controlled by the manifest intention of the testator appearing upon the face of the will, that the legacy shall not lapse, and by his distinctly providing a substitute for the legatee dying in his lifetime. The authorities appear to have settled that a testator may, if he thinks fit, prevent a legacy from lapsing; though, in order to effect this object, he must declare, either expressly or in terms from which his intention can with sufficient clearness be collected, what person or persons he intends to substitute for the legatee dying in his lifetime. In ascertaining the intention of the testator, in this respect, the courts of equity have established two positive rules of construction: 1. That a bequest to a person _payable_, or _to be paid_, at or when he shall attain twenty-one years of age, or at the end of any other certain determinate time, confers on him a vested interest immediately on the testator's death, as _debitum in præsenti solvendum in futuro_, and transmissible to his executors or administrators; for the words _payable_, or _to be paid_, are supposed to disannex the time from the gift of the legacy, so as to leave the gift immediate, in the same manner, in respect to its vesting, as if the bequest stood singly, and contained no mention of time. 2. That if the words _payable_, or _to be paid_, are omitted, and the legacies are given _at_ twenty-one, or _if_, _when_, _in case_, or _provided_, the legatees attain twenty-one, or any other future definite time, and make the legatee's right to depend on his being alive at the time fixed for its payment, consequently, if the legatee happens to die before that period arrives, his personal representatives will not be entitled to the legacy.[127] The application of this rule was well illustrated in the case of Patterson v. Ellis,[128] and the doctrine discussed and maintained in an opinion by Chief Justice Savage, in the Court of Errors, in New York. It was there held, that where the gift of a legacy is absolute, and the time of payment only postponed, as where the sum of $1,000 is given to A, to be paid when he shall attain the age of twenty-one, the _time_ not being of the substance of the gift postpones the payment, but not the vesting of the legacy; and if the legatee die before the period specified, his representatives are entitled to the money. But where the legacy is given _when_ the legatee shall attain the age of twenty-one, or _provided_ he attains that age, time is of the substance of the gift, and the legacy does not vest until the contingency happens. But even where the legacy is given _when_ the legatee attains the age of twenty-one, if the devisor directs the _interest_ of the legacy to be applied, in the meantime, for the benefit of the legatee, there being an absolute gift of the _interest_, the principal will be deemed to have vested.[129] The giving of interest before the payment has been considered as evidence of an intention to vest the legacy. Hence, when a portion was devised to a child with interest, but not to be paid or payable until the child should attain twenty-one years, or be married, and the child died under twenty-one, and unmarried, it was decreed that the portion should go to the administrator of the child.[130] The rule with respect to the vesting of legacies payable out of real estate is somewhat different. It is this: Where the gift is immediate, but payment is postponed until the legatee attains the age of twenty-one years, or marries, there _it is contingent, and will fail if the legatee dies before the time_ of payment arrives; but where the payment is postponed in regard to the convenience of the person, and the circumstances of the estate charged with the legacy--and not on account of the age, condition, or circumstances of the legatee--in such a case it will be vested, and must be paid, although the legatee should die before the time of payment.[131] The rule in question is always liable to the operation of the more general and powerful rule, namely, that the intention of the testator, to be gathered from the words of the will, must prevail. As an illustration of the rule in regard to the vesting of legacies on personal estate, the following is in point: A testator bequeathed to his daughters the sum of £3,000, five per cent. navy annuities, and all the dividends and proceeds arising therefrom, to be equally divided between them, and all his estate at S, to be equally divided between them _when they should arrive at twenty-four years of age_. One of his daughters died before she attained the age of twenty-four years. The court was of opinion that, according to the true rule of construction, the word _when_ could not be otherwise considered than as denoting the _period of payment_, and must not be deemed as a condition precedent upon which the legacy was to vest, but merely postponing the payment of this £3,000, with the dividends thereon, till twenty-four.[132] A legacy of £30 was given to an infant to bind him an apprentice. The infant died before he attained a proper age to be bound an apprentice. It was decreed that this legacy was vested, and the infant being seventeen years old, and having made a will, and named an executor, it was allowed to be a good disposition of the £30.[133] As to charging legacies on real estate, and observing the rule above laid down, the following is in point: T S, by will, gave his daughter £1,000, to be paid by his executor at her age of twenty-one, or marriage, which should first happen, willing the same to be raised out of the rents and profits of the lands; and further willed, that in case his son should die before the age of twenty-one, or without heirs of his body lawfully begotten, then from and after the death of his son, he gave all his said lands, etc., to the defendant, he making up his daughter's portion to £2,000; and the daughter died soon after the testator's death, an infant, unmarried, upon which her mother took out letters of administration and claimed the £2,000; it was decreed that she was not entitled to any part of it, for it appears that the intention of the testator was that it should be for a portion, and it is expressly called a portion in the will; it is no personal legacy, but money to be raised out of the rents and profits of lands, and the payment is expressly to be at twenty-one years, or marriage.[134] SECTION 3.--CONDITIONAL LEGACIES. By the bestowal of legacies a rare opportunity is offered to testators either to gratify some peculiar desire, or to restrain or control some one who is the beneficiary. It is on the legal principle of _quid pro quo_, a consideration for a consideration. Accordingly, we find that testators, in bestowing their bounty by way of legacies, avail themselves of the opportunity to effect various objects--some to regulate and restrain a wayward, errant child, some to curb the eager readiness of a widow to find a new partner, some to check a child rashly rushing into wedlock, and some to gratify a whim or a prejudice. The law allows conditions to be annexed to a legacy, provided they are not against public policy or good morals. A conditional legacy is defined to be a bequest whose existence depends upon the happening or not happening of some uncertain event, by which it is either to take place or be defeated.[135] No precise form of words is necessary to create conditions in wills; wherever it clearly appears that it was the testator's intent to make a condition, that intent shall be carried into effect. Conditions are subject to the well-known division, into conditions precedent and conditions subsequent. When a condition is of the former sort, the legatee has no vested interest till the condition is performed; when it is of the latter, the interest of the legatee vests, in the first instance, subject to be divested by the non-performance or breach of the condition. Whether a condition be precedent or subsequent, that is, whether it must be performed before the legatee can be entitled to an absolute interest in the bequest, or not till after, of course depends upon the words and intention of the testator. But a testator, in making a bequest, may use words of condition, which, however, shall not be construed as such, if it clearly appear that they do not involve the _motive_ and _reason_ of the bequest.[136] Any consideration exacted from the beneficiary, or any duty imposed on him, unless it is spread over a very unusual period of time, is a condition precedent. A condition that the beneficiary shall cease to resort to public houses is a condition precedent, and is not void for uncertainty.[137] In the case of Tattersall v. Howell,[138] a legacy was given, provided the legatee changed his course of life, and gave up all low company, and frequenting public houses. And Sir William Grant held that this was a condition such as the court could carry into effect, and directed an inquiry whether the legatee had discontinued to frequent public houses, keeping low company, etc. Had this been a devise of land, it would have been a void condition, as will appear in the next chapter.[139] In Dunstan v. Dunstan, the executors were required by the will to pay to the legatee annually $200, and also one-fifth of the testator's estate, in case the legatee should refrain from vicious habits, and conduct himself with sobriety and good morals. About two years after the testator's death, the legatee filed his bill against the executors, insisting that he had reformed, and claiming the payment of his share of the estate. The defendants had refused to pay over to the claimant his one-fifth of the estate, not being satisfied of his complete reformation. The provision of the will was supported, and as the complete reformation of the legatee was not distinctly proved, and a sufficient time had not elapsed between the death of the testator and the filing of the bill to enable the executors to form a sound opinion as to the permanency of the legatee's good conduct, it was held that the executors were right in refusing to place the whole property in his hands at that time, and it was referred to a Master to ascertain and report whether there had been such a permanent reformation in his character and habits as to entitle him to receive the whole amount bequeathed to him at that time. If the condition is at all capable of being construed as subsequent, it will be deemed to be such. Thus, in Page v. Hayward,[140] lands were devised to A and B in case they married a person named S. They married each a person of a different name, yet they were held to take vested interests, the condition being subsequent, and being capable of being performed, as their husbands might die, and they might then marry persons of the coveted name. A testator declared that if either Jane or Mary married into the families of Prudence or Resignation, and had a son, then he gave all his estate to such son; but if they did not marry, then the estate was to go to A. Jane and Mary married, but not into the families mentioned, and A claimed the estate; but it was held that during the lives of Jane and Mary the claim was premature, for one of them might afterwards satisfy the condition.[141] The race as well as the religious antipathy of a testator sometimes crops out in his will.[142] The testator in the following instance must have had as much dislike to Scotchmen as the celebrated Dr. Johnson. He devised his real and personal estate to trustees, out of which to pay an annuity to his wife for life, and out of the residue to pay sufficient for the maintenance, education, and support of his only daughter until she should attain the age of twenty-one years, or marry, and then in fee, with a proviso that if either his wife or daughter should marry a Scotchman, then his wife or daughter so marrying should forfeit all benefit under his will, and the estates given should descend to such person or persons as would be entitled under his will in the same manner as if his wife or daughter were dead. It was held that such partial restraint of marriage was legal, and that, the daughter having while under age married a Scotchman, and died leaving a son, the son could not inherit.[143] The most interesting inquiry in connection with conditional legacies, is, as to how far conditions annexed to legacies which restrain marriage are to be performed, and in what case the neglect or non-performance of them will forfeit the legacy. The Roman civil law made absolutely void all such conditions in restraint of marriage, as against the policy of the State; but our law has not evinced the same impatience of nuptial restrictions, for a condition inhibiting marriage until majority, or any other reasonable age, or requiring consent, or restraining marriage with any _particular_ individual, and in the case of a widow, even a general restraint, is lawful.[144] Thus, if an annuity be bequeathed by a man to his wife for so many years, if she shall remain so long a widow, it is a good conditional bequest, because of the particular interest every husband has in his wife remaining a widow, for thereby she will the better take care of the concerns of his family.[145] But if a stranger gives a legacy upon such condition, it is not a good condition, for there is no more reason restraining a widow from marrying than a maid.[146] In the American States, we permit such a condition to be annexed to a legacy, as well as in England.[147] A restraint of this sort, annexed as a condition, occurred in a case in Pennsylvania,[148] in connection with the will of William Geigley, and, as a singular instance of a testator's forethought and exactness, together with an unusual effusion of sentimental argument, very seldom met with in the sober, well considered decisions of courts, it will be interesting to refer to it. The testator provided as follows: "I will and bequeath to my loving wife, Susan Geigley, all my real and personal estate that I am possessed of, (with a few exceptions, that I will afterwards bequeath to my brother George) provided my wife Susan remains a widow during her life. But in case she should marry again, my will is, she then shall leave the premises, and receive all the money and property she had of her own, or that I received of hers.... It is my will and desire, that if my wife remain a widow during her life on the premises, that after her death all the money or property that I got or had of my wife's shall be paid to her friends, whomsoever she wills it to; and all property belonging to me as my own at my death (not including my wife's part) I will and bequeath to my father and mother, if living. But if they are both deceased, my will is that my brother, George Geigley, and my sister, Catharine Geigley, shall have the whole of that share or part that was my own, to them, their heirs and assigns, forever." This condition was held to be good, and, the widow having married, the mother became entitled to the proceeds of the real estate. The language of the judge before whom the case was at first heard is deserving of a place in legal literature, as something rare in these matter-of-fact, prosaic days. He thought it shocking to his sense of personal liberty that any such restraint should be valid, and concludes his decision with the following beautiful effusion: "The principle of reproduction stands next in importance to its elder-born correlative, self-preservation, and is equally a fundamental law of existence. It is the blessing which tempered with mercy the justice of expulsion from Paradise. It was impressed upon the human creation by a beneficent Providence to multiply the images of himself, and thus to promote His own glory and the happiness of His creatures. Not man alone, but the whole animal and vegetable kingdom are under an imperious necessity to obey its mandates. From the lord of the forest to the monster of the deep--from the subtlety of the serpent to the innocence of the dove--from the celastic embrace of the mountain Kalmia to the descending fructification of the lily of the plain, all nature bows submissively to this primeval law. Even the flowers which perfume the air with their fragrance, and decorate the forests and fields with their hues, are but curtains to the nuptial bed. The principles of morality--the policy of the nation--the doctrines of the common law--the law of nature and the law of God--unite in condemning as void the condition attempted to be imposed by this testator upon his widow." It may be considered an unfair partiality in our law that wives are not allowed the same privilege to prohibit their husbands from marrying again; for it has just been lately decided in England, in the case of Allen v. Jackson,[149] that while a restraint of a _widow_ is a good condition and valid as such, a similar restraint of a _widower_ in regard to his marriage is invalid, and of no effect. It would seem at first blush that the same rule should govern in each case; but Vice-Chancellor Wood, in Newton v. Marsden,[150] suggested a reason which he thinks justifies the distinction, namely, that a condition restraining the marriage of a widow is valid, because it is not an arbitrary prohibition of marriage, but the condition of a gift, made to the widow because she was a widow, and because the circumstances would be entirely changed if she entered into a new relation.[151] While the law sanctions, in this case, the restraint of a second marriage, it does not tolerate a general restraint of a first marriage; as Swinburne says:[152] "A prohibition of the first marriage is much more odious in law than the second." The utmost privilege it has given in this respect is to permit a restraint as to time, place, or person, as not to marry before twenty-one, not to marry at York, not to marry a papist. Still, the law is not indulgent of such conditions, and in some cases will not permit a forfeiture if the condition is not observed. Thus, if a legacy be given on condition of asking consent to marriage, if the person marries without such consent, he does not lose the legacy. Such a condition is said to be _in terrorem_ only--something like an idle threat, to prevent persons exercising an imprudent choice. In Bellasis v. Ermine,[153] a suit was brought for £8,000, given to the plaintiff's wife. The defendant pleaded that it was given her provided she married with the consent of A, and, if not, that she should have but £100 per annum; and that she married without the consent of A. It was ordered that the plea be overruled. And the court all declared that this proviso was but _in terrorem_, to make the person careful, and that it would not defeat the portion. But it was said that if the party who gave the portion had limited it to another, in the case of her marriage without the consent of A, there it would have been otherwise. We, in this country, follow the same law.[154] So long, therefore, as the legacy does not go to another named in the will, in case of a breach of the condition, the legatee will be entitled, notwithstanding a marriage without consent. The reason of this is said to be, that the courts cannot relieve against the forfeiture without doing an injury to the person to whom it is limited over.[155] Thus, A bequeathed £3,000 to his daughter, the plaintiff Garret's wife, at twenty-one or marriage, and recommended her to the care of S, provided that, if she married without the consent of S, her legacy of £3,000 was to cease, and she was to have but £500, and made the defendant, his son, executor. The plaintiff married the daughter without the consent of S, yet the court decreed her the whole £3,000, with interest from the marriage, and principally because it was not expressly devised over.[156] However, courts do not permit this doctrine of _in terrorem_ to apply, in case the marriage is to be with consent _during minority_. In such a case the condition is enforced, as it is deemed a safe and proper one for the protection of youth. The reason of the application of the doctrine _in terrorem_, is, that if a consent be withheld after a person has attained majority, it may be for a long period, either from caprice, willfulness, or some other cause, and would practically restrain marriage, which is what the law will not permit.[157] If a portion be given on condition that the daughter should never marry, such a condition should be rejected as repugnant to the original institution of mankind.[158] So, if a condition be illegal, or contrary to the policy of the law, as, if a legacy be given to a woman if she does not cohabit with her husband and lives apart, such a condition is void, and the legatee is entitled absolutely.[159] SECTION 4.--PAYMENT OF LEGACIES. Attention is now to be given to the payment of legacies. It is evident that an executor cannot safely pay a legacy until he ascertains that the personal estate of the deceased is sufficient to pay the debts, and for this reason the law generally allows the space of a year to satisfy himself as to the condition of the personal estate.[160] And should an executor, acting under the impression that the condition of the assets was such as to entitle him to pay a legacy before the end of the year, pay it before, and if, afterwards, a deficiency arises, he is responsible for the payment of any claim or demand against the estate. Sometimes the exigencies of a person may require an earlier payment of a legacy, and in this case an executor may pay such legacy, provided he gets a bond, with two good sureties, to refund in case of any deficiency; this is the case by statute in New York,[161] and in many other States. Even if a testator desires a payment of a legacy before the expiration of a year, an executor is not bound to make payment.[162] As regards the time of payment, the law makes no difference between general or specific legacies. The next inquiry may be as to when a legacy is to be paid, where a legatee is to become entitled at twenty-one, or at some other age, and dies, having a vested interest, before he attains the specified age. In this case, it is a rule that no payment is to be made until the time arrives when the deceased, if living, would become entitled.[163] But if interest be given during minority, the representative of the deceased may claim the legacy immediately.[164] A legacy of £500 was given to the eldest son of A to be begotten, to place him out apprentice; A had a son born after the death of the testator; and on a bill brought by him for the legacy, it was decreed to be paid, though it was before the time when he was fit to be placed out an apprentice.[165] The following case brings up a reminiscence of a state of society that is now very unfamiliar to us at the present day: The testator by his will emancipated his slave, and devised to him two hundred dollars, "to assist him in buying his wife." The specification of the object of the bequest does not qualify it, nor affect the legatee's right to it. The executors, it was decided, cannot compel him to use the two hundred dollars in the matrimonial market, nor delay him payment until he makes a purchase there.[166] A testator devised as follows: "I lend to my wife the plantation whereon I now live, and after her decease I give and bequeath the said land to my child that my wife is now pregnant with, if a boy; and if it should be a girl, I give the said land to my son H, upon his paying to the said child, if a girl, one hundred pounds." The child proved to be a girl; and it was held that the legacy of one hundred pounds was not payable until the death of the testator's widow.[167] If a legacy be given to A, with a bequest over if he succeed to a certain estate, or upon condition that it shall be void in that event, the legacy must be paid to A, notwithstanding.[168] If a legacy be devised generally, it is regularly to carry interest from the expiration of the first year after the death of the testator; but if it be a specific legacy upon which interest can accrue, the interest will be given from the death of the testator, and it is immaterial whether the enjoyment of the principal is postponed by the testator or not.[169] Even if there be a direction to pay a general legacy as soon as possible, interest only begins at the end of a year.[170] But if the legatee, being of full age, neglects to demand it at that time, he cannot have interest but from the time of the demand, because a legacy differs from a debt.[171] While this was formerly the rule, it is not now in force, for it has been held that, no matter whether the legatee demands or not, the legacy will draw interest. It was so decided in a case in New York.[172] The general rule is, that a legacy payable at a future day does not carry interest before the time of payment; and the rule applies to an infant payable at twenty-one, unless in the case of an infant having a right to demand maintenance from the testator, or of the legacy to him being a residue, or there are special circumstances showing clearly an intention to give interest.[173] And if a legacy is given in lieu of dower, or is decreed to be a satisfaction of a debt, the court always allows interest from the death of the testator.[174] A legacy to a child whose support and maintenance is otherwise provided for by the bounty of the testator, like a legacy to a more distant relative, or to a stranger, is not payable and does not draw interest until one year after the death of the testator, where no time of payment is prescribed by the will.[175] An annuity bestowed by will, without mentioning any time of payment, is considered as commencing at the death of the testator, and the first payment as due at the expiration of one year; from which latter period interest may be claimed in cases where it is allowed at all.[176] The rule as to interest being reckoned on a specific legacy from the death of the testator was strictly applied in the case of Churchill v. Speake,[177] where a testator made a specific bequest of a mortgage for £1,000 to his wife, and desired her to give the sum of £500 to M C, his grandchild; "but, for the time and manner of doing it, I leave it freely to herself, and as she shall see it best for her"; and the wife exercised this freedom so well as to live twenty years after the testator, and never paid the £500; and the court decreed payment of it to M C, with interest from the testator's death. The inquiry to whom legacies are to be paid is one of great importance to the executor, who must be careful to pay legacies into the hands of those who have authority to receive them. It is a general rule that, where the legatee is an infant, and would be entitled to receive a legacy if he were of age, the executor is not justified in paying it either to the infant, or to the father, or any other relation of the infant, on his account, without the sanction of a court of equity.[178] And even in the case of a child who has attained majority, payment to the father is not good, unless it be made by the consent of the child, or confirmed by his subsequent ratification. It may happen that an executor has, with the most honorable intentions, paid the legacy to the father of the infant; nevertheless, he will be held liable to pay it over again to the legatee on his coming of age. And although such cases have been attended with many circumstances of hardship to the executor, yet he has been held responsible, on the policy of obviating a practice so dangerous to the interests of infants, and so naturally productive of domestic discord.[179] Many of our States regulate the payment of legacies to infants by statute, as in New York, where a legacy of $50 may be paid to the father of the legatee, to the use and for the benefit of such minor; but, if it exceeds $50, it must be paid to the general guardian of the infant, who will be required to file a bond to pay it over to the infant.[180] It was formerly the law that, if a legacy was given to a married woman, it should be paid to the husband. So, where a legacy was given to a married woman living separate from her husband, with no maintenance, and the executor paid it to the wife, and took her receipt for it; yet, on a suit instituted by the husband against the executor, he was decreed to pay it over again, with interest.[181] It was also adjudged that, if the husband and wife were divorced _a mensa et thoro_, and a legacy was left to her, the husband alone could give a proper receipt for it, and consequently to him alone was it payable.[182] But now, by statutes in almost all of our States, a married female may take by devise and bequest, and hold to her sole and separate use, real and personal property, or any interest or estate therein, in the same manner, and with the like effect, as if she were unmarried. SECTION 5.--THE PERSON WHO MAY TAKE. The only person generally disqualified to receive a legacy is the witness to a will. The law has thought fit to guard a deceased from all imposition, and it is thought if a person took any beneficial interest under a will to which he was one of the witnesses, he could not be a disinterested person to attest its due execution. In New York, he is disqualified, if such will cannot be proved without his testimony;[183] and, in a case on this head, Caw v. Robertson,[184] where there were _three_ witnesses to the will, each of whom took legacies under it, the Surrogate called the first two, whose names appeared first, which were sufficient, and omitted calling the third. It was decided that he only became entitled to the legacy, as the will could be proved without his testimony. An executor is not disqualified from receiving a legacy; but in his case, it seems, it will not carry interest.[185] In wills, legatees are sometimes designated under a general name or class, and a difficulty often arises to determine what individuals shall be included in such a designation. Where a testator uses such general terms, without defining or limiting them, they have a meaning given them by the general rules of construction in law. Indeed, the testator's intention may be frustrated by using certain terms, which may appear to him to include or exclude certain individuals in his bounty, but which may be so enlarged or restricted by the rules of law as to defeat their object. As in the instance where a lady, dying, and intending to give her personal wearing apparel to her servant maid, bequeathed to her _all her personalty_, which under the rules of law meant all her personal estate, which was valued at $60,000, and which under such a term must necessarily go to the servant. In general, no rule is better settled than that legatees must answer the description and character given them in the will, but it will presently appear, from the cases, that there are many important exceptions to it. We shall refer to some of these general names or classes, sometimes met with in a will, by which individuals belonging to such classes become entitled to a legacy. When a testator leaves a legacy to "children,"[186] it is a general rule, that those within that designation _at the time of the testator's death_ become entitled; but if, from the expressions and context of the will, it is ascertained that he intended only those who answered that description _at the date of the instrument_, such intention will be observed.[187] A court of equity, however, is careful that a liberal construction be placed upon such a term, and always, if possible, will hold that it shall include children in existence at the death of the testator, and especially if the testator stood in _loco parentis_ to the legatees.[188] The general rule, it is claimed in Collin v. Collin,[189] is, that in a will of personal estate the testator is presumed to speak in reference to the time of his death, and not to any previous or subsequent period. A child in _ventre sa mere_, at the time of the testator's death, is held to be in _esse_, if it is afterwards born alive, and to be equally entitled as those children who were born in the lifetime of the testator.[190] If there be a postponement of the division of a legacy given to a class of individuals until a certain time after the testator's death, every one who comes under the description at the time when the distribution is made will be entitled, no matter if he was not in _esse_ at the time of the testator's death, unless from the will it be gathered that the testator intended to limit his bounty to those only who were living at the time of his decease.[191] And where the legacy in the will indicates a present bequest of a fund which is to be distributed at a period subsequent to the death of the testator, those who are in _esse_ at the time of his death will take vested interests in the fund, but subject to open and let in others who may come into being, so as to answer the description and belong to the class at the time appointed for the distribution. Where, however, a fund is bequeathed to children or others as a class, to be divided equally among the persons composing the class, when they arrive at the age of twenty-one, or marriage, only those who shall have been born or begotten when the oldest arrives at the age of twenty-one, or when the first of the class is married, are entitled to share in the fund.[192] Although, as a general rule, a devise to children, without any other description, means legitimate children, and if the testator has such children, parol evidence cannot be received to show that a different class of persons was intended; still, in these cases, as in all others, it is proper to look into circumstances _dehors_ the will, to see whether there are any persons answering the description of the legatees in the legal sense of the term used; and if it appear that there are not any such persons, it is then allowable to prove the situation of the testator's family, to enable the court to ascertain who were intended by the testator as the object of his bounty. Thus, in Gardner v. Heyer,[193] where the testator died a bachelor, but had for a long time lived and cohabited with M. Smith, by whom he had and left four children, a son and three daughters, who had been by him placed at school and acknowledged as his children, and were generally reputed as such by his friends; and by his will he gave to his son John $10,000, to be paid to him when he arrived at the age of twenty-four, the interest in the meantime to be applied to his maintenance and education; and he also gave to each of his daughters $3,000, payable at the age of twenty-one, and the interest in the meantime to be applied to their education and support; and he directed his executors and trustees to pay $65 to M. Smith, the mother of the children, quarterly, during her life, if she remained single and had no more children; and he devised and bequeathed all the residue of his estate, real and personal, to his executors and trustees, and the survivor of them in fee, in trust, to pay two-thirds of the income thereof to his son John, and one-third to his daughters during their lives, with remainder to their issue; and he gave cross-remainders to the survivors in case any of the children should die without issue; and he also appointed the executors and trustees, guardians of the children during their minority, and earnestly requested that the utmost care should be taken _of their morals and education_. The court declared that there was no doubt as to the legal and equitable rights of the children of M. Smith under the will. A bequest to an unborn, illegitimate child, the mother being described, is valid, unless the child be pointed out as having a certain father, for then it is void, the bastard being in point of law nobody's child--_filius nullius_.[194] A bequest by a husband to his "beloved wife," not mentioning her by name, applies exclusively to the individual who answers the description at the date of the will, and is not to be extended to an after taken wife.[195] A testator was betrothed to a lady, and by a codicil to his will, after mentioning her name, and alluding to his intended marriage with her, he gave £3,000 _to his wife_. Before the marriage he died, and it was held that the lady was entitled to the legacy.[196] A gift to "my servants," it is thought, will extend to those in testator's service at the date of the will, though they leave it before his death.[197] Redfield prefers to comprise, by such a phrase, only those who are in the testator's service at the time of his decease, no matter whether they were his servants at the time of his making his will or not.[198] The best rule would be not to admit those who entered the testator's service recently before his death, nor those who left before that time, but to hold only those entitled who were in his service when the will was made as well as at his death. Difficulties sometimes arise from the want of explicitness in pointing out a legatee by a testator, and again from a mistake in naming or designating him. The general rule upon the subject is, that when the name or description of the legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named or described, the mistake will not disappoint the bequest. The error may be rectified and the true intention of the testator ascertained in two ways: 1. By the context of the will; 2. To a certain extent by parol evidence. 1. The mistake may be rectified by the context. Thus an error in the _name_ of the legatee may be obviated by the accuracy of his _description_: as where a legacy is given to "my namesake _Thomas_, the second son of my brother," and the testator's brother had no son named Thomas, but his second son is named _William_, there is sufficient certainty in the description to entitle the second son. And again, where the testator bequeathed to his brother, Cormac Connolly, and to his two sisters, Mary and Ann, a certain residue, and afterwards by a codicil bequeathed as follows: "To my nephew, Cormac Connolly, the son of my brother, Cormac Connolly, the sum of five hundred dollars for his ecclesiastical education, which sum is to be taken from what I have bequeathed to my brother Cormac, and to my sisters Mary and Ann." And it appeared the testator never had a brother named Cormac, but that he had a nephew, Cormac, who was the son of his only surviving brother James, who was pursuing classical studies in Ireland with a view to an ecclesiastical education, and who was the only nephew of that name; it was held that the legatee intended by the testator by the name of his brother, Cormac, was the father of his nephew, Cormac, and that his brother James was the person entitled to share in the residuary estate.[199] So, an error in the _description_ may be obviated by the certainty of the _name_; as, where a legacy was given to "Charles Millar Standen and Caroline Eliz. Standen, _legitimate_ son and daughter of Charles Standen, now residing with a company of players," and it appeared they were _illegitimate_ children, their claim was nevertheless supported.[200] The mistake may, to a certain extent, be rectified by parol evidence. The admissibility of parol evidence in these cases has given rise to much discussion; it forms one of the exceptions to the general rule, not to admit parol evidence where a will is void for uncertainty. This is treated of under the _seventh proposition_ of Wigram on Wills,[201] in a very exhaustive manner, and the cases fully examined. We will merely here point out when such evidence is admissible and when it is rejected. The rule is thus laid down: Where the object of a testator's bounty, or the subject of disposition, is described in terms which are applicable indifferently to more than one _person_ or _thing_, evidence is admissible to prove which of the persons or things so described was intended by the testator. Thus, when a _blank_ is left for the Christian name of the legatee, parol evidence is admissible to supply the omission, as in the case of Price v. Page,[202] in which the testator bequeathed "to ---- Price, the son of ---- Price, the sum of £100." No person but the plaintiff claimed the legacy, and he produced evidence from which it appeared that he was the son of a niece of the testator; that his father and grandfather's names were Price; that the testator had no other relation of that name, and that he had been before frequently the object of the testator's care; that the testator said he had and would provide for the plaintiff. Upon this evidence, Lord Alvanley determined in favor of the claim. When the omission consists of the _entire_ name of the legatee, parol evidence cannot be admitted to supply the blank; for that would amount to a bequest by oral testimony. Thus, in Winne v. Littleton,[203] A bequeathed all his personal estate to his executor, leaving a blank, and died without naming _any_ person executor. The legacy was adjudged to be void. And in Hunt v. Hort,[204] a woman devised her houses in the city and at Richmond to her niece, dame Margaret Hort, and Richard Baker, her attorney, in trust to sell. She then gave some pictures specifically, and thus proceeded: "My other pictures to become the property of Lady ----." The testatrix then made her niece, Harriet Hunt, her residuary legatee, and appointed Lady Hort and Richard Baker her executors. Lord Thurlow was of opinion that he could not supply the blank by parol evidence, and observed that, where there was only a title given, it was the same as a total blank. If, however, a legatee be described by initials of his name only, parol evidence may be given to prove his identity. This was done in the case of Abbott v. Massie,[205] where the bequest was: "Pint Silver Mug and all my China to Mrs. G., and £10 for mourning." Mrs. Gregg claimed the legacies, and (the Master having refused to admit testimony) offered to show that she was the person intended. Exception was taken to his ruling, upon which the court declared that he ought to receive evidence to prove who Mrs. G. was. The principle upon which parol evidence is admitted in these cases is a presumption of possible ignorance in the testator of the Christian name of the legatee, or of his being accustomed to calling a person by the name of Mrs. B, a presumption which, being raised upon the face of the will, may be confirmed and explained by extrinsic evidence. Upon this ground, it is consistent with the established doctrine that such evidence is admissible to remove _latent_ ambiguities, but cannot be admitted to explain _patent_ ambiguities in a will. This is founded on Lord Bacon's well-known maxim: "_Ambiguitas verborum latens verificatione suppletur._" CHAPTER V. LIMITS TO TESTAMENTARY DISPOSITION. While the law has generally granted the privilege of testamentary disposition, it has not deemed it expedient or politic to give the absolute and unrestricted power, so that a person can make a posthumous disposition of his property in _any_ way he thinks proper. For the public welfare, it has seemed judicious to impose certain restrictions on the right exercised by a person in distributing his property after his decease. It is well known that if an uncontrolled, absolute power were given, that individuals would sometimes disregard the claims of those who have a natural right to their bounty, and gratify their pride, their whims, or their vagaries in disposing of their property by will. The possession of a large amount of property during a man's lifetime gives him such a consciousness of power and authority, that it is difficult to disabuse his mind of the idea that he cannot perpetuate his name, his influence and control, after his death, by distributing and disposing of his property according to his pleasure. The law is full of instances where men have attempted, by schemes in devising their property, to establish a name and an influence that would abide long after the mind that conceived them had ceased to act or control. This has been the ambition, we may call it the infirmity, of some great minds; indeed, it seems sometimes a special characteristic of such persons to desire to live thus in the memory of posterity, by some remarkable and striking mode of disposing of their property after their decease, so as to leave some visible token of their influence and prestige, either in an institution or in a family,[206] either in a charity or a monument. When properly and judiciously exercised, this desire has led to the foundation of those noble institutions for the relief of the indigent and helpless, for the promotion of knowledge and education, for the development of science and art, and for the furtherance of various benevolent designs, which are the boast and glory of our modern civilization, and which have done so much to foster and advance that civilization. But at an early period this desire or infirmity was made use of by the clergy, who wielded such vast influence over the dying, to induce testators to dispose of property for enriching churches and monasteries, and various other institutions. So great did the evil become, and so many grievous abuses sprung up, that the public welfare was threatened and endangered, and in consequence of this, a bitter and determined struggle ensued between the civil and spiritual powers, lasting through centuries and giving a peculiar bias to certain legislation. As soon as some means would be devised to check the abuses, and to limit the power of the clergy, some new device would be contrived by their ingenuity to evade the rules or nullify a law. The establishment of the law of Uses and Trusts is a good example of these ingenious devices to evade a statute. The several Statutes of Mortmain had their origin in this effort of the civil power to curb the influence of the spiritual power, and check a dangerous tendency to enrich corporations of a religious or eleemosynary character. These several acts occupy a prominent place in English history, and characterize a very important epoch of that history. Their influence has extended to us, who have gathered experience from the past, and this is plainly evinced in our Statutes of Wills in the different States, which disqualify corporations from taking by devise unless expressly authorized.[207] It was found, however, that an indiscriminate prohibition would prevent the foundation of many worthy and useful institutions, which, instead of being a menace, would be a safeguard to the welfare of the State; and hence a distinction arose between such bequests as were for charitable uses, and those for superstitious uses, the latter of which were so obnoxious to the law, and forbidden by it. A superstitious use is thus defined in Bacon's Abridgement.[208] It is, "where lands, tenements, rents, goods, or chattels are given secured, or appointed for and towards the maintenance of a priest and chaplain to say mass; for the maintenance of a priest or other man, to pray for the soul of any dead man, in such a church, or elsewhere; to have and maintain perpetual obits, lamps, torches, etc.,[209] to be used at certain times, to help to save the souls of men out of purgatory; these and such like uses are declared to be superstitious." Devises to charitable uses were supported in England at an early period in the common law, which is supposed to have derived its maxims on this head from the civil law. Lord Nottingham says, in the case of the Attorney-General v. Tancred,[210] that devises to corporations, though void under the Statute of Wills, were good in equity _if given_ to charitable uses.[211] The Statute of the 43d of Elizabeth enumerates what charitable uses were. They were, according to this statute, gifts for the relief of aged, impotent, and poor people; for maintenance of sick and maimed soldiers and mariners; for ease of poor inhabitants concerning payment of taxes; for aid of young tradesmen, handicraftsmen, and persons decayed; for relief, stock, and maintenance of houses of correction; for marriages of poor maids;[212] for education and preferment of orphans; for schools of learning, free schools, and scholars in universities; for relief or redemption of prisoners or captives; for repair of bridges, ports, havens, causeways, churches, sea-banks, and highways. But as it was found that persons "dying and languishing"--_in extremis_--were frequently unduly influenced to dispose of their property to such charitable purposes, against the rights of their family or kindred, it was enacted by the Statute of Mortmain, 9 George II, that no property in land, or arising out of land, could pass to such purposes, unless by deed indented, sealed, and delivered in the presence of two or more credible witnesses, twelve calendar months before the death of the donor or grantor.[213] Of course, these statutes have no operation in this country, unless by special enactment. The statute of Elizabeth not being in force in New York, it was therefore insisted that no devise to charitable uses was, in consequence, valid. The fluctuations of the law on this point present a remarkable and not a very satisfactory example of varying judicial opinion in that State. The earlier decisions of its highest court have lately been overruled, and the earlier doctrines on the subject discarded. Thus, in Williams v. Williams,[214] it was held that the law of charitable uses was not founded on the statute of Elizabeth, but was a part of the common law, which is still in force here, so far as conformable to our polity and adapted to our institutions; and that a court of equity, exercising the chancery jurisdiction of the English courts, will carry out the purpose of a testator; and that, notwithstanding the statutory prohibition against devises of lands to corporations, a devise of a charity, not directly to a corporation, but in trust for a charitable corporation, would be good. Subsequent cases followed this decision of Williams v. Williams; but later cases have altered the law in New York. The case which effected a change, and finally determined the law, is of historical as well as legal importance, and deserves a detailed statement. It is the case of Levy v. Levy,[215] most learnedly and ably argued and examined in the various courts of the State. Commodore Uriah P. Levy, the testator, was an eminent and wealthy officer of the United States navy, of the Jewish religion, who became the owner of the famous farm of Jefferson, at Monticello, in Virginia, and who died in New York in March, 1862, leaving property valued at over half a million dollars. In his will, after making various bequests, he provided: "After paying the above legacies and bequests, or investing for the same, and subject to my wife's dower and use of furniture, I give, devise, and bequeath my farm and estate at Monticello, in Virginia, formerly belonging to President Thomas Jefferson, together with all the rest and residue of my estate, real, personal, or mixed, not hereby disposed of, wherever or however situated, to the people of the United States, or such persons as Congress shall appoint to receive it, and especially all my real estate in the city of New York, in trust, for the sole and only purpose of establishing and maintaining at said farm of Monticello, in Virginia, an agricultural school, for the purpose of educating as practical farmers, children of the warrant officers of the United States navy whose fathers are dead. Said children are to be educated in a plain way in the ordinary elementary branches to fit them for agricultural life, and to be supported by this fund, from the age of twelve to sixteen, and each of them to be brought up to do all the usual work done on a farm; the said farm to be so cultivated by the said boys and their instructors as to raise all they may require to feed themselves, and the schoolmaster and one other teacher, and one superintendent of the said farm. I also give and bequeath, for the purpose of giving such fuel and fencing for said Monticello farm-school, two hundred acres of woodland of my Washington Farm, called the Bank Farm, in Virginia, the said two hundred acres to be taken from said farm hereby devised to my nephew Ashel, and to be designated by said Ashel. "In establishing said farm-school, I especially require that no professorships be established in said school, or professors employed in the institution; my intention in establishing this school is charity and usefulness, and not for the purpose of pomp. In proportion to the smallness of number of the teachers, so will industry prevail. "The institution must be kept within the revenue derived from this endowment; and under no circumstances can any part of the real or personal estate hereby devised be disposed of, but the rent and income of all said estate, real and personal, is to be held forever inviolate, for the purpose of sustaining this institution. The estate and lands in New York can be leased to great advantage for that purpose. "Should the Congress of the United States refuse to accept of this bequest, or refuse to take the necessary steps to carry out this intention, I then devise and bequeath all the property hereby devised to the people of the State of Virginia, instead of the people of the United States. Provided they, by acts of their legislature, accept and carry it out as herein directed. And should the people of Virginia, by neglect of their legislature, decline to accept this said bequest, I then devise and bequeath all of my said property to the Portuguese Hebrew Congregation of the city of New York, the Old Portuguese Hebrew Congregation in Philadelphia, and the Portuguese Hebrew Congregation of Richmond, Virginia: provided, they procure the necessary legislation to entitle them to hold said estate, and to establish an agricultural school at said Monticello for the children of said societies who are between the ages of twelve and sixteen years, and whose fathers are dead, and also similar children of any other denomination, Hebrew or Christian. "I direct my executors hereinafter named, or such of them as shall qualify, to invest the funds arising from said estate in some safe, paying stocks as fast as they accumulate, and to hold the whole of the property and estate hereby devised and bequeathed for said school, and in their hands, until the proper steps have been taken by Congress, or the legislature of Virginia, or the said Hebrew Benevolent Congregations, to receive the same and discharge said executors." The court, in its decision, extensively reviewed preceding cases, and held that, at common law, the trust would be void for want of a certain donee or beneficiary of the use or trust, whom the law could recognize. That it was uncertain which class of beneficiaries would be the parties in interest, and if the class were ascertainable, that the individuals thereof were indeterminate and unascertainable, and there was no ascertained beneficiary in whose favor performance might be enforced. The court determined that the law of charitable trusts, as existing and enforced in England, being based on the statute of Elizabeth, was abrogated and annulled in the State by the act of 1788, which repealed the statute of Elizabeth; and that the legislature by that act intended to abrogate the entire system of indefinite trusts, which were understood at the time to be supported by that statute alone, as being opposed to the general policy of our government and to the spirit of our institutions. The court also determined that the trustees named, viz., The People of the United States, or the State of Virginia, were incompetent to take as trustees, they being created for certain determinate political purposes, and having no other function or existence.[216] Nor could the Hebrew Congregations, it was held, so act, as the trust was not within the acts or province of their incorporation; the one in New York could only take property for its own use, and the foreign corporations could not take and act as trustees of lands in this State. The court was further of opinion that the whole of the peculiar system of English jurisprudence, for supporting, regulating, and enforcing public or charitable uses, is not the law of the State of New York when in conflict with statutory prohibitions relative to uses and trusts.[217] This case was afterwards followed by Bascom v. Albertson,[218] holding and approving the views of Levy v. Levy, which may now be considered as finally settling the law on this head in New York. The statement of the law, as decided in New York, is not in harmony with the decisions in a large majority of the States. There is unquestionably a difference of opinion on this subject. The gist of inquiry is: Does the law of charitable uses exist in those States where the statute of Elizabeth is not in force, or has been repealed? Or, is the law appertaining to this subject founded on the common law, or is it the creation of the statute? There is no question that the weight of judicial opinion is greatly in favor of the doctrine that the law is not a creation of the statute, but is founded on the common law jurisdiction in the Court of Chancery, and as such can be administered by the courts in the absence of any special statute.[219] The statute of Elizabeth is in force in Massachusetts, Pennsylvania, North Carolina, and Kentucky. It is not in force in Maryland, Virginia, California, and New York. In some of the States, corporations are specially empowered by statute to take a certain amount of property by devise.[220] In New York, there is a statute, passed in 1860, which prohibits a person having a husband, wife, child, or parent, from devising or bequeathing to any charitable or literary corporation more than half of his or her estate, after payment of debts. The most frequent and dangerous propensity which law has to check and guard against in testators is that of perpetuating in their family for generations vast property and estates. The desire of founding a family of vast wealth and influence to preserve one's property is not an uncommon one; it appeals to some of the dearest and most personal feelings of a man's nature; it is peculiarly gratifying to pride and pomp, and, if not limited and checked, would be dangerous to the public welfare, as it withdraws from the channels of trade and enterprise a large extent of property. Hence, every civilized country finds it necessary to define the extent of a man's control over his property, how long his volition can regulate its use after death, and to what purposes it shall be put. The common law permitted a control in this respect which would be entirely incompatible with our republican institutions and equality of our citizens. Under that law, a man had the power to tie up his property and suspend the power of alienation, as it was termed, for any number of lives in being, and twenty-one years and a fraction afterwards. He could order the accumulation of the rents, income, or profits for a similar period. The case which first drew attention to the danger of such a power was one of the most famous in English law, and one that has since been a warning and an incentive to legislation both here and in England. Perhaps, for the amount involved, the tediousness and length of the litigation, and the singularity of the provisions, there has never been a more famous case than that of Thellusson v. Woodford,[221] tried before Lord Chancellor Loughborough, in the year 1798. The case afforded a remarkable instance of the unnatural meanness and ostentation of the testator, in depriving his immediate descendants of their just share of his fortune, not to found any noble charity, but that his fortune might accumulate in the hands of trustees, for the miserable satisfaction of enjoying in anticipation the wealth and aggrandizement of a distant posterity who should bear his name. Peter Thellusson was born at Paris, of Swiss parentage, his father being a minister from Geneva to the French court. He settled in London as a merchant at an early age, was naturalized, and, on the foundation of a fortune of £10,000, raised the princely possessions which afterwards became the subject of litigation. It is said that he was generally respected, and, though a severe economist, lived in a style suitable to his wealth. His three sons were all members of Parliament. In the sixty-first year of his age, being at the time in perfect health and legal sanity, he made and executed his last will, bearing date April 2d, 1796, and thereby disposed of his property upon trust during the natural lives of his three sons, and of the sons of each of these then in being, and of any such issue as any of his grandsons might have as should be living at the time of his decease. During the lives of the survivors or survivor of these persons mentioned, the trustees were to collect and receive the rents and invest them, and, upon the decease of the last survivor, all the accumulated estates should be divided into three lots, of equal value, and settled upon the eldest male lineal descendant then living of each of his three sons; and, if there should be a failure of male descendants of two of his said three sons, the sole male lineal descendant of the testator should become entitled to the whole three lots, consolidated into one huge mass of landed property. The property was thus tied up in the hands of trustees, and kept from enjoyment for three generations. Shortly after executing this extraordinary will, on 21st July, 1797, Mr. Thelusson died. The money which the will sought to accumulate was estimated at £600,000. An accountant of that time calculated the accumulation--limiting it to seventy-five years, the shortest possible period during which the property would be tied up--at £27,182,000, an immense sum, but which he deemed would be considerably less than the sum it would be likely to reach when the improvement of money at a higher rate and the lengthened duration of the last survivor were taken into account. It was estimated, by one of the counsel in the case, that if there were three descendants to take, each would have an income of £650,000 a year; if only one, he would have an income of £1,900,000 a year, more than double the revenue of the king's civil list, and surpassing the largest territorial fortune then known in Europe. Chancellor Kent, regarding it from his time, has said that if the limitation should extend to upwards of one hundred years, as it might, the property will amount to upwards of one hundred millions sterling. The children brought an action to have the will set aside, but the court decided against them, and gave judgment confirming the trusts. The case attracted wide and deep attention from the magnitude of the fortune sought to be reared, and from the important principle of public policy involved. It was argued on both sides by the most eminent counsel at the bar, but nevertheless the Chancellor was compelled to hold the will valid, much, it is said, against his inclination. Next year, he was instrumental in getting Statute 39 and 40 Geo. III passed, restraining dispositions by way of accumulation to the life of the grantor, or twenty-one years after his decease, or the minority of any party living at the time of his decease.[222] The property was accordingly left to accumulate; but the ambitious and vain visions of the testator and the alarm of the public were destined to disappointment. The structure which threatened even to overshadow the land in its ascending greatness has not risen to a disproportionate size. The operation of the trusts has proved practically a failure, as the accumulated mass of wealth is likely to fall far short of the amount which fanciful calculators had predicted. It has shared the inevitable fate of all such vast estates that get into the grist-mill of the lawyers. The litigation has been so expensive, that what with fees of lawyers, fees of courts, commissions to trustees, and the expense of management, the _corpus_ of the estate has been pretty well eaten up. The expenses of management from January, 1816, to 1833, exceeded £122,700. The only increase in respect of income was £8,356, and an accumulation of capital of £326,364. The extent of time to which property is allowed to accumulate is very carefully and strictly defined in our statutes. It is generally only during a person's minority, as in New York and California, and the same is believed to be the rule in general.[223] The power of suspending the alienation of property by a devise is limited to lives in being in some States, or in others to _two_ lives in being,[224] and no matter how short may be the duration, the suspension will be invalid if it is not made to depend on _life_ as the condition of the limitation.[225] On this account, some very worthy and benevolent schemes of testators have failed. The two lives must be designated. This may be done either by naming two persons in _particular_, or else by describing a _class_ of persons, and bounding the suspense of alienation by the lives of the _two first_ who shall die out of the class. The limitation may be restricted for a shorter period than two lives--it may be for a single life. The estate may also be limited so as to depend on some event besides life, provided it must vest within two lives; as an estate to A for ten years, if B and C, or either of them, shall so long live; here, the estate may determine either by the lapse of the ten years, or by the death of B and C; but it can in no event exceed two designated lives. So, an estate during minority, widowhood, or other stage of existence, through which _two_ individuals may pass, would be good, because it could not by any possibility extend beyond two designated lives.[226] These technical rules have rendered many a noble scheme abortive, and frustrated the benevolent and reformatory intentions of many a testator. In the following instance, a testator's paternal solicitude for the reform of a wayward son, and his disapproval of his mode of life, were emphatically expressed; and an unfortunate oversight of this inflexible rule hindered the restraint the parent thought to place on his son after his decease. The father, however, with the usual confidence of a parent, had not abandoned all hope as to his ultimate recovery, for he thought fit to make him one of his executors, and thus placed him in the rather novel position of being a censor of his own conduct. In the seventh clause of his will, after certain clear devises and bequests to other persons, was this recital and provision, viz: "Whereas, my son P, to whom sundry bequests are made in the following will, has unfortunately contracted habits of inebriation, and in consequence of which, I fear he would squander or misuse the bequests to him made, I do, therefore, annul and make void this will as to him, unless he reforms and continues a sober, industrious, and moral man, for the space of two years after my decease, giving to my executors satisfactory evidence and assurance of a thorough reformation. And, therefore, it is my will, that the property so willed to him should be held in trust for him, not to exceed three years after my decease; and if within that time such reformation does not take place, I desire my said executors to divide his portion among such of my heirs as may seem to them most to need and deserve the same."[227] It was held that this provision of the will was void, both as a _trust_, and as a _power in trust_; and that the son took the bequest notwithstanding. The court deemed it "an unusual and extraordinary provision"; and as the period of suspension was measured by time alone, and not by _life_, this of itself rendered the provision nugatory. It has been decided that if a bequest be made to certain trustees, to hold during the life of two persons designated, or until the legislature incorporate a hospital during the lifetime of the said persons, it is good.[228] It was in this way the will of Mr. Roosevelt was drawn, through which the Roosevelt Hospital in New York was founded. He bequeathed the residue of his estate, after other bequests, to nine trustees, five of whom were presidents of certain charitable institutions, for the establishment of an hospital for the reception and relief of sick and diseased persons, and directed them to apply to the legislature for a charter to incorporate the same, and in case the legislature should refuse to grant this within two years next after his death, _provided two lives named in his will should continue so long_, then the trustees were to pay over the same to the United States for a similar purpose. It was held that this provision did not violate the statute of perpetuities, but that the corporation could take only in case the charter was granted within the two lives named. There was no need to consider the validity of the devise to the United States. The charter was granted in February, 1864, and now the hospital stands conspicuous among the charities of New York city. An oversight in the observance of this rule against perpetuities caused the failure of a grand and meritorious scheme conceived by the late Mr. Rose of New York. He died in 1860, and left a large amount of property--estimated at two millions of dollars--to found an institution called the "Rose Beneficent Association,"[229] whose object it was to educate and train waifs picked up on the streets, and make them useful citizens. He gave the bequests upon the contingency of raising $300,000 from other sources within _five years_. If that sum was not so raised, the estate was given to other charitable beneficiaries. The utmost limit of the suspension was five years, but it was not circumscribed by lives as the Statute of Perpetuities requires, and it was adjudged to be void. It should be stated as a warning that this will of Mr. Rose was drawn by himself. The case occupied a long time in litigation, and the subject of charitable bequests was most exhaustively examined.[230] CHAPTER VI. REVOCATION OF WILLS. It is one of the well-understood qualities of a will, at the present time, that it is revocable during the testator's lifetime. It was shown, in a former part of this work, that this quality did not in early times attach to a will; that a will, at first, was in the nature of an executed contract; a conveyance, in fact, and irrevocable.[231] However, as a will has no effect until death, it necessarily follows that a person has full control of the subject-matter, and can change his mind as he pleases regarding its disposition so long as he lives. This is now accepted as a postulate in the law of wills.[232] The only inquiry, therefore, will be as to what acts or occurrences shall be deemed sufficient to revoke a will previously made. There are two modes in which a will may be revoked: _First_, it may be revoked by the happening of some events subsequent to the making as, in the judgment of law, will amount to a revocation. We may term this an implied revocation. _Secondly_, it may be revoked by a certain deliberate act of the maker, intending to cancel a previous will, or with _animo revocandi_, as the legal phrase is. The events which would operate to produce an implied revocation of a will were formerly a subject of wide and constant discussion. The courts in England, and until lately in this country, occupied themselves very frequently in discussing this subject of implied revocation, and, for a long time, there was no general agreement on the precise events that would, in the judgment of law, amount to a revocation. At an early period in the English law, it was determined that the marriage of a _feme sole_ was sufficient to revoke a will made by her previous to her marriage. It was expressed thus, in the quaint language of the time: "It was adjudged, on great deliberation, that the taking of a husband, and the coverture at the time of her death, was a countermand of the will."[233] This enunciation of the law has ever since prevailed as a principle in the law of wills. But a similar marriage in the case of a man did not have the same effect. The courts were at first not agreed as to whether the birth of a child after the making of a will would be sufficient to effect a revocation. In one case, it was decided that this event alone did not amount to a revocation;[234] but in another case, where there were _four_ children born subsequently to the making of the will, this, combined with other circumstances, was held to be a revocation.[235] It came to pass that the courts became finally agreed on the question that marriage, together with the birth of issue, was sufficient to effect a revocation of a will.[236] In the application of this rule, cases of great hardship have sometimes occurred; but it has been steadily adhered to, even under circumstances in regard to real estate, at least; as where the testator left his wife _enceinte_ without knowing it, as was the case in Doe v. Barford, above, where Lord Ellenborough held that the birth of a child _alone_, even under these circumstances, was not sufficient to revoke the will which was made after marriage. He said: "Marriage, indeed, and the having of children, where _both_ these circumstances have occurred, has been deemed a presumptive revocation; but it has not been shown that either of them _singly_ is sufficient. I remember a case some years ago of a sailor who made his will in favor of a woman with whom he cohabited, and afterwards went to the West Indies, and married a woman of considerable substance; and it was held, notwithstanding the hardship of the case, that the will swept away from the widow every shilling of the property, for the birth of a child must necessarily concur to constitute an implied revocation. In Doe v. Lancashire, 5 T. R. 49, it was adjudged that marriage and the pregnancy of the wife, with the knowledge of the husband, and the subsequent birth of a posthumous child, came within the rule, the same as if the child had been born during the parent's life." This subject was elaborately examined by Chancellor Kent, in the case of Brush v. Wilkins,[237] where the authorities from the earliest times were quoted and examined, and the same conclusion reached. This inquiry is not of much practical importance now, either here or in England, for statutory enactments have laid down the law precisely and satisfactorily as to what circumstances shall be deemed sufficient to produce the revocation of a will. And this is very desirable, since much uncertainty and discussion is thereby avoided, and the devolution of property exactly determined.[238] There is scarcely a State we know of where statutes have not been passed, setting the matter at rest, and fixing the law on the subject. By the recent English statute, wills are held absolutely revoked by the subsequent marriage of the testator, whether made by a man or woman, unless such will be made in execution of certain powers; and it is further provided that no will shall be revoked, by any presumption of intention, on the ground of an alteration of circumstances. In the statutes of the different States there is this difference: In some, the birth of a child after making a will, where such child is unprovided for, will work a revocation; while in others, it will only revoke it _pro tanto_, that is, so as to allow the child to have the same share as if the parent died intestate. In Ohio, Indiana, Illinois, and Connecticut, the birth of a child avoids the will _in toto_.[239] By the statute laws of Maine, Vermont, New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, and California, children born after the making of the will inherit as if the parent died intestate, unless the will comprises some provision for them, or they are particularly referred to in it. The will is thus revoked _pro tanto_.[240] In Virginia and Kentucky, the birth of a child after the will, if there were none previously, revokes the will, unless the child dies unmarried or an infant.[241] The statute law of some States goes further, and entitles not only children but their _issue_ to claim portion of testator's estate, if such children were unprovided for, and unmentioned in the will. This is the case in the California code,[242] and in Maine, New Hampshire,[243] Rhode Island, and Massachusetts. By the New York revised statutes, if a will disposes of the whole estate, marriage and the birth of a child revoke the will, if either the wife or child survive the testator.[244] Parol evidence is not admissible to rebut this presumption. Wherever the question has arisen, it has generally been held, even in the States where by statute children omitted in the will of the parent are entitled to the same share of his estate as if he had died intestate, that marriage and the birth of issue, after the making of a will, do amount to an implied revocation of the will.[245] In many of the States, marriage alone, after making the will, amounts to a revocation. In Virginia, it is revoked by marriage;[246] also, in West Virginia; so in California, unless a provision be made for the wife.[247] In others, it only revokes the will _pro tanto_, as in Pennsylvania and Delaware.[248] In the State of Illinois, where the husband and wife are made heirs to each other, marriage by the testator after making his will, wherein no provision in contemplation of such new relation exists, amounts to a revocation.[249] The marriage of a woman after making her will, will produce a revocation in general. It is so in New York and California;[250] and in California it is not revived by death of the husband. This provision is in harmony with the early cases in England.[251] It must not be inferred from the previous statement that a testator has no power to disinherit or cut off a child. The law does not withhold this power; it only presumes, by the omission to mention the name of a child in a will, that the claim of that child was overlooked by the testator, and the court, exercising its equitable power, interferes on behalf of such child to see it gets its due share of the property. But where the intention is expressed, and much more so where a reason is given, for cutting off a child from a participation in a testator's property, the courts cannot interfere in behalf of such disinherited child, unless on some imputation of insanity or undue influence. Another, and a more usual mode in which a will may be revoked, is by an express deliberate act of the testator. This may be done by a subsequent testamentary document, or by some physical destruction or cancelation of the will. A very common phrase used in a will is: "And I hereby revoke all former and other wills and testamentary dispositions by me at any time heretofore made." However, the insertion of a clause like this is not of much importance, as a will professing to dispose of the _whole_ of a testator's property necessarily displaces and supersedes all antecedent testamentary instruments.[252] Such a clause might be useful in those instances in which the intention to dispose of the entire estate was not so clearly manifested as to preclude attempts to adopt, wholly or partially, the contents of former wills as part of the testator's disposition; since a will may be composed of _several_ papers of _different_ dates, each professing to be such when they are capable of standing together.[253] Mere proof of the execution of a subsequent will, therefore, is not sufficient to invalidate a prior will. There must be proof of a clause of revocation, or there must be plainly contrary or inconsistent provisions.[254] And where the contents of the last will cannot be ascertained, it is not a revocation of the former will. This was decided by the Court of King's Bench in England, more than one hundred and fifty years ago, in the case of Hutchins v. Bassett;[255] and that decision was subsequently affirmed upon a writ of error in the House of Lords. In the subsequent case of Harwood v. Goodright,[256] which came before the Court of King's Bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained; although it was found by a special verdict that the disposition which the testator made of his property by the last will was different from that made by the first will, but in what particulars the jurors could not ascertain. This case also was carried to the House of Lords upon a writ of error, and the judgment was affirmed. As these two decisions of the court of _dernier resort_ in England were previous to the Revolution, they conclusively settle the law on this subject here.[257] Again, where there are several codicils or other testamentary papers of different dates, it is a question of intention upon all the circumstances of the case, which and how far either is a revocation of another, or whether the dispositions of the latter are to be considered as additional and cumulative to those of the prior. Parol evidence, however, is not to be admitted in order to investigate the _animus_ with which the act was done, unless there is such doubt and ambiguity, _on the face of the papers_, as requires the aid of extrinsic evidence to explain it.[258] In a late case,[259] the subject of receiving parol evidence in regard to the fact and intent of the revocation of wills, is very carefully examined, and the principle declared, that where the testator executed a will, and subsequently executed another, which he took away with him, and which on his decease could not be found, the earlier one being found, that the solicitor who drew the will, or any other witness familiar with its contents, might give evidence thereof; and it appearing that the provisions of the later one were inconsistent with those of the former, it was held to amount to a revocation. The practice, in the American courts, of receiving parol evidence of the contents of a lost will, seems to be universal, and without question, notwithstanding the stringent statutory requirements in regard to the mode of executing wills.[260] The evidence must come from witnesses who have read the will, and whose recollection of its contents is trustworthy.[261] But in cases of fraud, more indulgence is allowed to the proof, and in Jones v. Murphy,[262] the court said: "It is better, surely, that a person should die intestate than that the spoliator should be rewarded for his villainy." The English courts do not grant the same indulgence to admit alleged lost wills to probate. In a late case, where the contents of the will were propounded for probate after a delay of seven years, and no sufficient explanation given of the manner or cause of the loss, and when no draft of the will could be produced, but only oral proof of its contents, due execution, and that it could not have been revoked, probate was denied.[263] The question as to what extent a codicil shall control the provisions in the will is not always easy of solution. Each case depends almost exclusively upon its own peculiar circumstances, and will not, therefore, be much guide to others, unless the facts are very similar. But the general rule of construction is that already stated, to allow all the provisions of the will to stand which are not inconsistent with those of the codicil, and in determining this, to seek for the intention of the testator, as far as practicable.[264] Where a codicil refers to the former of two inconsistent wills, by date, as the last will of the testator, it has the effect to cancel the intermediate will, and evidence of mistake cannot be admitted.[265] Where a codicil named the wife as "sole executrix of this my will," it was held that the appointment of other executors in the will was revoked.[266] It has been held that a revocation is not valid, in most of the American States, unless done with the same formality required in the execution of the will itself.[267] Thus, writing the word "obsolete" on the margin of his will by the testator, but without signing the same in any of the modes allowed by law, will not amount to a revocation.[268] In a somewhat recent case in Pennsylvania, the question of revocation arose, in regard to a bequest to charity.[269] The court held that, where there are two wills, in some respects inconsistent, the latter revokes the former only so far as they are inconsistent with each other, unless there is an express clause of revocation. But where the property given specifically in the first will is, in the second, contained in a general devise to the same objects, and for the same purpose, and the appointment of other executors, there is a manifest inconsistency, and it evinces an intention that both wills should not stand. Many times it happens that a testator, dissatisfied with an executor or devisee named in his will, erases the name of such executor or devisee; but this will not always effect his purpose, as it should be done by a subsequent codicil, properly executed. Thus, where a testator (without a republication of his will) made alterations and corrections in it, with the intent, not to destroy it, but to enlarge and extend a devise already made, it was held not a revocation of the devise.[270] The physical destruction or cancelation of a will by a testator is the most palpable and unmistakable mode of its revocation. In what manner or in what different modes this may be done was first laid down in the Statute of Frauds, where revocation was to be effected by "burning, canceling, tearing, or obliterating" the will. These four phrases have been generally adopted and inserted in our statutes, with either some modification or enlargement. The enumeration of these several modes for the destruction of a will by a testator, to amount to its revocation, has not prevented controversy and uncertainty; for law cannot define acts in words so precisely and unmistakably as to preclude all doubt and quibbling. There are sure to be some who will play upon words--a mental recreation to which legal minds are somewhat given--and who will insist upon an exact literal conformity when a revocation is sought to be maintained under this provision. It would seem to an ordinary mind hardly possible to admit of a doubt that _cutting_ a will was, in effect, equivalent to _tearing_; yet a legal quibble went so far as to question this, when it became necessary to decide that cutting was, in effect, the same as tearing.[271] Probably, the legislature of West Virginia took into consideration a knotty question of this kind, and took good care to save a legal luminary stumbling over a question of this sort; for, by the statute of that State, it is provided that a revocation in this manner may be effected by "_cutting_, tearing, burning, obliterating, canceling, or destroying the same." To avoid any limited construction of the words as used in the English Statute of Frauds, it is generally provided in our statutes that a revocation may be made as in that statute, or by _otherwise destroying_ the will.[272] This cuts off a great deal of uncertain construction, and removes a great temptation for fine legal distinctions. In the New York statute, a revocation is effected in this way, if the will is _burnt, torn, obliterated, canceled, or destroyed_, with intent and for the purpose of revoking the same.[273] The statute very wisely requires two things to be combined before it concludes that a will is revoked. There must be the _act_ of destruction with the _intent_, or the _animo revocandi_, as the law terms it. Under the English statute, it had been determined that the mere acts named will not constitute a valid revocation unless done with the intent to revoke.[274] Lord Mansfield here explains very graphically the acts which might often occur, which would destroy the writing, but would not amount to a revocation of the will; as, if a man were to throw ink upon his will instead of sand; or, having two wills, of different dates, should direct the former to be destroyed, and by mistake the latter is canceled. In neither case would it amount to a revocation of the will, although the writing were irrevocably gone. Revocation is an act of the mind which must be demonstrated by some outward and visible sign. The statute prescribes what those signs are. If any of these are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation.[275] It would be manifestly a harsh and an unjust construction to place upon the statute, that because a will was destroyed in any one of the modes pointed out, that a strict interpretation required a revocation. Hence, where the destruction was done unadvisedly, or by some other casualty, it was held, it could not amount to a revocation. Thus, where a will was gnawed to pieces by rats, but the pieces, being collected, were afterwards put together, the will was admitted to probate.[276] And in Perkes v. Perkes,[277] a testator having quarreled with a person who was a devisee in his will, in a fit of passion took the will out of the desk, and, addressing some words to a bystander, tore it twice through, but was prevented from proceeding further by the interference of the other person and the submission of the devisee; and he then became calm, put up the pieces and said: "It is a good job it is no worse"; and after fitting the pieces together, added: "There is nothing ripped that will be any signification to it." The jury found that the act of canceling was incomplete at the time the testator was stopped; and the court was of opinion that that conclusion was right, and that the will was not revoked. Where a testator, with an intent to revoke his will, endeavors to destroy it in some of the modes pointed out, but through the fraud, imposition, or other deception of a person; the act is prevented being completed, it shall not prevent a revocation. The following case is a striking one, and illustrates this principle. A testator, (who had for two months declared himself discontented with his will) being one day in bed near the fire, ordered M W, who attended him, to fetch his will, which she did and delivered it to him, it being then whole, only somewhat erased. He opened it, looked at it, then gave it something of a rip with his hands, and so tore it as almost to tear a bit off, then rumpled it together, and threw it upon the fire, but it fell off. It must soon have been burnt, had not M W taken it up, which she did, and put it in her pocket. The testator did not see her take it up, but seemed to have some suspicion of it, as he asked her what she was about, to which she made little or no answer. The testator, several times afterwards, said that was not and should not be his will, and bid her destroy it. She said at first, "so I will, when you have made another"; but afterwards, upon his repeated inquiries, she told him that she had destroyed it, though in fact it was never destroyed, that she believed he imagined it was destroyed. She asked him who his estate would go to when the will was burnt; he answered, to his sister and her children. He afterwards told a person that he had destroyed his will, and should make no other until he had seen his brother, J M, and desired the person to tell his brother that he wanted to see him. He afterwards wrote to his brother, saying, "I have destroyed my will, which I made, for upon serious consideration, I was not easy in my mind about that will," and desired him to come down, saying, "If I die intestate, it will cause uneasiness." The testator, however, died without making another will. The jury, with the concurrence of the judge, thought this a sufficient revocation of the will, and on a motion for a new trial it was so held, and that throwing it on the fire, with an intent to burn, though it was only very slightly singed and fell off, was sufficient within the statute.[278] The English courts are more strict in requiring a substantial compliance with the statute than our courts are. In the American cases, the intention is looked upon as the most material and controlling element: as where a testator asked for his will on his sick bed, and was handed an old letter, which he destroyed, supposing it to be his will, it was held to be a good revocation.[279] And where a testator threw his will upon the fire, _animo revocandi_, and it was taken off and preserved, before any words were burned, and without the testator's knowledge, it was decided, by a very able court, that it did amount to revocation.[280] So, where a testatrix burns a paper, which she supposes to be her will, and by mistake or the fraud of others burns a different paper, and remains under this misapprehension during her life, it amounts, in law, to a revocation.[281] But in a case in Vermont it was held that the mere intention or desire to revoke one's will, until carried into effect in the manner prescribed in the statute, can have no effect; however, if such intention is defeated by fraud, a court of equity will prevent a party moving from any benefit of such fraud.[282] The two words "canceling" and "obliterating" have occasioned more uncertainty than the others used in the statute, because it is not so easily or exactly determined what acts shall amount to a cancelation and what to an obliteration of the will. In one case, the will was found with another testamentary paper, but the place in which the names of the attesting witnesses should have appeared, upon the latter, was scratched over with a pen and ink, so that no letter of a name could be deciphered: it was held that this paper was thereby revoked, and the will was admitted to probate alone.[283] It seems to be settled, that from the fact of interlineations and erasures appearing upon the face of a will, no such presumption arises, as in the case of deeds and other instruments, that they were made before execution. But in regard to a will the case is different. Hence, where the testator makes an alteration in his will by erasure and interlineation, or in any other mode, without authenticating such alteration by a new attestation in the presence of witnesses, or other form required by the statute, the will, therefore, stands in legal force the same as it did before, so far as it is legible after the attempted alteration,[284] but if the former reading cannot be made out by inspection of the paper, probate is decreed, and such illegible portions are treated as blanks. In a case in Pennsylvania,[285] where the will was found in the testator's private desk, with the seals of the envelope broken, and a black line drawn through the name of the testator, and there was no evidence how or with what intent it was done, it was held a sufficient revocation. Vice-Chancellor Wood, in a case in New York,[286] decided that where a testator, having torn off the signature from the first four sheets of his will, and struck his pen through the signature upon the remaining sheet, the _animus revocandi_ being proved, it was a sufficient revocation. The clearest statement of the law on this head was made by an eminent judge, whose language very clearly sums up the law. Chief Justice Ruffin, in a case in North Carolina,[287] says: "The statute does not define what is such a cancelation or obliteration as shall amount, conclusively, to a revocation of a will. Burning, or the utter destruction of the instrument by any other means, are clear indications of purpose which cannot be mistaken. "But obliterating may be accidental, or may be partial, and therefore is an equivocal act, in reference to the whole instrument, and particularly to the parts that are unobliterated. So, canceling, by merely drawing lines through the signature, leaving it legible, and leaving the body of the instrument entire, is yet more equivocal, especially if the instrument be preserved by the party, and placed in his depository as a valuable paper. It may be admitted that the slightest act of cancelation, with intent to revoke absolutely, although such intent continue but for an instant, is a total and perpetual revocation, and the paper can only be set up as a new will. But that is founded upon the intent. Without such intention, no such effect can follow; for the purpose of the mind gives the character to the act. When, therefore, there appears a cancelation, it becomes necessary to look at the extent of it, at all the conduct of the testator, at what he proposed doing at the time, at what he did afterwards.... For, although every act of canceling imports, _prima facie_, that it is done _animo revocandi_, yet it is but a presumption which may be repelled by accompanying circumstances." There seems to be no question, according to Jarman,[288] that, under the Statute of Frauds and other similar statutes, as _parts_ of an entire will may be revoked, in the same mode the whole may be so revoked. The same rule has been adopted in this country, to some extent. The question was ably examined by Surrogate Bradford, in a case in New York.[289] In that case, a testator, after his will had been prepared and executed, becoming dissatisfied with one of the devisees, his own daughter, struck out the devise to her, which was contained in these words: "To my beloved and only daughter, Sarah Ann McPherson, I give and bequeath," etc. In a note to the foot of the page, he gave as a reason for striking out this devise, the bad treatment of his daughter, and afterwards altered a phrase in his will where "children" was used, and substituted "sons" instead, so as to exclude the said daughter. In examining this question, the learned Surrogate assumed that a _part_ of a will might be obliterated in the same mode as the whole, and referred to various decisions in support of this view. He, however, held that, as the subsequent alteration, substituting "sons" for "children," was invalid, not having been re-witnessed, as is required, that the obliteration of the devise was not effectual as to that part, and could not be treated as a revocation. In Kentucky, in the case of Brown's Will,[290] it was declared that a cancelation of a portion of the devises, the testator's signature being left untouched, did not affect the residue of the dispositions, which remained unaltered, the testator's intention not to revoke them being clearly established. CHAPTER VII. WILLS AS AFFECTED BY DOMICILE. There is a certain respect paid by the laws of one nation or community to those of another, which is termed international comity, which, for general convenience and utility, is observed and regarded by tribunals when certain acts done in one place are to be construed in another. Of course, such comity is merely conventional--there is no binding obligation to enforce it; but from long observance, and the customary regard tribunals have given to certain rules of international comity, these rules have been so long sanctioned by precedent and authority as now to have the force of law. The law relating to wills as affected by domicile is, to a great extent, founded on such rules of international comity, or _leges gentium_. The principles of law appertaining to this subject are well settled and recognized, and are now invariably acted upon. The language of wills is supposed to speak the sense of the testator according to the received laws or usages of the country where he is domiciled, by a sort of tacit reference to them, unless there is something in the language which repels or controls such a conclusion. In regard to personalty, (in an especial manner) the law of the place of the testator's domicile governs in the distribution thereof, and will govern in the interpretation of wills, unless it is manifest the testator had the laws of some other country in his own view. This is usually expressed by the legal formula, that, with regard to personal property, the _lex domicilii_ governs.[291] The law on this subject has never been more clearly expressed, or better summarized, than by the Lord Chancellor, in the case of Enohin v. Wylie.[292] His lordship there says: "I hold it to be now put beyond the possibility of a question, that the administration of the personal estate of a deceased person belongs to the court of the country where the deceased was domiciled at his death. All questions of testacy or intestacy belong to the judge of the domicile. It is the right and duty of that judge to constitute the personal representative of the deceased. To the courts of the domicile belong the interpretation and construction of the will of the testator. To determine who are the next of kin, or heirs of the personal estate of the testator, is the prerogative of the judge of the domicile. In short, the court of the domicile is the _forum concursus_ to which the legatees under the will of a testator,[293] or the parties entitled to the distribution of the estate of an intestate, are required to resort." As a will is governed in its interpretation according to the law of the place where the testator had his domicile, therefore, if a testator, born and domiciled in England during his whole life, should, by his will, give his personal estate to his heir-at-law, that the _descriptio personæ_ would have reference to, and be governed by, the import of the terms in the sense of the laws of England.[294] The import of them might be very different if the testator were born or domiciled in France, Pennsylvania, or Massachusetts. To ascertain what the testator means, we must first ascertain _what was his domicile_, and whether he had reference to the laws of that place or the laws of any foreign country.[295] The law of the domicile governs as to the proper mode of execution and attestation of wills of personal property; hence it is accepted as a rule of universal application, that a will of personal property, duly admitted to probate where a person has his domicile, is conclusive on all other courts, and is sufficient to pass personal property, wherever situated.[296] It has been a subject of discussion, whether a will, made by a person according to the law of his domicile at the time when made, will be operative if he subsequently changes his domicile, and dies in his new domicile. This is a question of grave importance, and one on which there is a serious conflict of authority. The question is then presented, as to what law should govern, whether the law of the domicile _at the time the will was made_, or the law of the domicile _at the time of decease_. This question arose in New York, in a case which passed through all the subordinate courts, and was finally determined by its highest court, after very thorough and learned examination. It was the case of Moultrie v. Hunt.[297] The testator, Benjamin F. Hunt, resided at Charleston, and there made his will, in August, 1849, conformable to the laws of South Carolina. He subsequently removed to New York, where he established his domicile, and where he died. His will was attested, at his request, by three witnesses; but Mr. Hunt did not state to the witnesses the nature of the paper which he requested them to attest, and, therefore, omitted to comply with one of the requisites of the statute in New York, which requires a publication of the will, to be a valid execution thereof. The Surrogate, when the case came before him, decided to admit the will to probate, and made a decree accordingly. This decree was affirmed by the Supreme Court, whence it was taken on appeal to the Court of Appeals, and it was there reversed, a very able judge (Denio) writing the opinion of the court. His opinion was very able and elaborate, and a thorough examination was made of all the authorities. He holds that a will cannot operate so as to confer rights of property until the death of the testator, until which event it is, in its essence, ambulatory and revocable. Therefore, it is the law in force _at the death of the testator_ that should govern as to the due execution of a will and the capacity of a testator. He illustrated this in the case of the legislature making laws that would have the effect of invalidating wills already made, and shows that where a will was witnessed by but two witnesses, three being required at the time it was made, that it was subsequently validated by a law in force at the decease of the testator, allowing two witnesses to attest a will. He quotes from Story[298] to show that it is the law of the domicile _at the time of death_ that should govern as to the proper execution, and he approves that doctrine, and holds it applicable to this case; which, it was held, should be governed by the law of New York, the law of the domicile of the testator at the time of his death, and therefore Mr. Hunt was considered as dying intestate in respect to personal property in New York. Judge Redfield, in his work on wills, approves of this doctrine,[299] and the same point has been decided in Missouri.[300] The question, however, is not free from doubt, as very able jurists differ on it. As far as New York is concerned, it has settled the law there. The case of the will of General Kosciusko, before the Supreme Court of the United States, in December, 1852, was in many respects the most notable and interesting case on this subject ever examined. In that case, it was necessary to examine, carefully and strictly, the law of wills as affected by domicile, and the manner of acquiring a domicile, and the mode of proving it. This case, besides its importance in a legal point of view, is of much public interest, as bringing up some memorable incidents connected with our revolutionary struggle and the eminent personages who participated in that struggle. It is found in the case of Ennis v. Smith,[301] and we will be justified in stating the facts somewhat in detail. Kosciusko made four wills, one in the United States in 1798, another in Paris in 1806, the third and fourth in Switzerland, whilst sojourning there during the years 1816 and 1817. In his third will there was a revocation clause, canceling the first and second wills, in these words: "Je revoque tous les testaments et codiciles que J'ai pu faire avant le présent auquel seul Je m'arrète comme contenant mes dernierès volantes." The object of the suit in the Supreme Court was as to the disposition of a fund belonging to Kosciusko in the United States, which, it was claimed, was undisposed of by his will, and to which the descendants of his sisters laid claim if he died intestate as to this property in the United States. The origin of this fund is full of interest. Kosciusko came here in 1776, entered our army as a volunteer in the Engineers, participated in all the struggles of our revolutionary war, and retired at its close with the rank of Brigadier General, poorer than when he came, and actually a creditor of our government for his military pay. During his absence in Europe, participating in the heroic struggle of his native land, he became entitled, under a military certificate, to the sum of $12,280.54, and not being able to receive it then, Congress passed a law in 1799 giving him interest from the 1st of January, 1793, to 31st December, 1797. When the money was paid it was invested in American stocks, and placed under the care of Jefferson. By judicious care and management the fund increased to the sum of $17,159.63, which was the subject of the suit in 1852. Before his departure from the country, in 1798, he made his will in his own handwriting, directing this fund to be laid out in the purchase of young negroes, who were to be _educated and emancipated_. In regard to this, he wrote to Jefferson, September 15th, 1817, as follows: "We all grow old, and for that reason, my dear and respectable friend, I ask you, as you have full power to do, to arrange it in such a manner, that after the death of our worthy friend, Mr. Barnes, some one as honest as himself may take his place, so that I may receive the interest of my money punctually; of which money after my death, you know the fixed destination. As for the present, do what you think best." As the will of 1816 revoked the two previous wills, the disposition of the fund became canceled. But in the will of 1817, by the second clause, he provided: "Je léque tous mes effets, ma voiture, et mon cheval y comprise à Madame et à Monsieur Zavier Zeltner, les hommes ce dessus." It was on this clause the dispute arose; because it was claimed that by the words "mes effets," the property in the United States passed, that it was a residuary devise, and that all went to the two persons named. On the other hand, it was claimed, that as Kosciusko, having been domiciled for fifteen years in France, and was only temporarily sojourning in Switzerland, that the law of France should control, and that the proper interpretation of such a phrase was that it referred to property as belonging at the time and which was attached to his person, and that the subsequent words restricted its meaning, and prevented it having a general signification. It was held that as to this property in the United States Kosciusko died intestate; and that, on the principle that personal property, wherever it may be, is to be distributed, in case of intestacy, according to the law of the domicile of the intestate, that the disposition of this property should be governed by the law of France, the proper domicile of Kosciusko. There was some difficulty to ascertain the domicile, but it was shown that he did not leave Poland compulsorily, which would be an important consideration in determining his _intent_; but he left voluntarily to obtain a civil status in France, which he conscientiously thought he could not enjoy in Poland whilst it continued under a foreign dominion. With regard to real estate, a different rule prevails. It would not comport with the dignity or independence of one country to allow real property, which by its nature is fixed and immovable, to be controlled and affected by foreign laws. Hence it is the law of the place where the real estate is situated that governs in its distribution, and as to the proper execution of a will devising it. This is expressed by the formula that the _lex locus rei sitæ_ governs. Thus, a devise of lands in England, though made abroad, must be executed pursuant to the English statute. Thus, where C made his will abroad, devising lands in England, but the same was executed in the presence of _two_ witnesses, (three being necessary, at the time of its execution, to devise lands in England) in accordance with the law where he was domiciled, it was held that the will must be void as to lands in England, which lands can only pass by such a will as the laws of England require, and that the _lex rei sitæ_ should govern.[302] And if a testator, by his will, direct personal property to be invested, in another State, in certain trusts of real estate there lawful, but not lawful by the law of the State where the testator is domiciled, the trusts will be declared void. This was the case where a testator, a resident of the State of New York at the time of his death, who, by his will, directed his personal property and the proceeds of his real estate there situated to be invested in real estate in the State of Ohio, upon trusts which were invalid by the law of New York, it was held that the devise in trust was invalid, as it was inconsistent with the law of the testator's domicile.[303] Jarman[304] considers that a will of realty is construed according to the law of the country where the land is situated; but Story,[305] Greenleaf,[306] and others are of opinion that this doctrine of the _lex rei sitæ_ does not apply to the construction, as distinguished from the execution, of wills. There are several American authorities on either side, the balance, however, being in favor of the law as stated by Jarman. A will has always been presumed, in England, to speak only from the death of the testator as to personalty, but before 1838, from its date as to realty. By 1 Vict., Ch. 26, devises and bequests were to be from _death_ of the testator, unless a contrary intention appears. The rules thus settled by this act have long been adopted in most of our States.[307] A will is presumed in the following States to speak only from the testator's death, as regards the subject-matter (as distinguished from the objects) of the testator's bounty: California, Maryland, Missouri, New York, and Pennsylvania. In Virginia, wills of land speak from the making of the instrument, unless it discloses an intention to the contrary.[308] It is so in Massachusetts, New Hampshire, Vermont, Maine, Indiana, Illinois, North Carolina, Connecticut, and Kentucky; though a testator may, in these States, convey by his will any after-acquired land, provided he declares his intention to that effect. The construction, however, on these statutes virtually raises a presumption that wills speak only from the death of the testator, if there is nothing in the context to the contrary.[309] It seems the better opinion, that the law of the domicile of the testator will govern as to what shall be regarded as personal estate, and what real. Thus, in Kentucky, shares in the capital stock of railroad companies are considered as real property,[310] and, according to this rule, a will made by a person domiciled there must be executed as a will of real estate, to convey such shares. And the law of the place of domicile must govern as to what ought to be regarded as testamentary capacity. Thus, in England, administration was granted upon the probate of the will of a married woman, domiciled in Spain, she being also a native of that country, it appearing that by the law of that country a _feme covert_ may dispose of her property by will, with certain limitations, the same as a _feme sole_.[311] CHAPTER VIII. CONSTRUCTION OF WILLS. It is obvious that within the scope of the present work it is inexpedient to treat of this subject extensively; it is considered only necessary to advert to a few of the leading and generally recognized rules followed in the construction of wills, both here and in England. The main purpose, in this direction, is to ascertain the true intention of the testator, from the language used in the instrument, and this intention shall prevail above every other construction which might be placed on the language. This is the cardinal rule of all construction, but it is to be taken with this limitation, that the intention will govern only so far as it is consistent with the rules of law. The general intent overrides all mere technical and grammatical rules of construction. This intention is to be ascertained from the whole will taken together, from a full view of everything contained within "the four corners of the instrument,"[312] and not from the language of any particular provision when taken by itself; and, for the purpose of construction, a will and codicil may be considered together, and construed as different parts of the same instrument.[313] But where several parts are absolutely irreconcilable, the latter must prevail.[314] The rule as to intention, governing in all cases, is somewhat liable to misconception, because it is susceptible of, and may be taken in, two senses. For by intention, it may be inferred that we are to seek for some probable purpose as existing in the testator's mind at the time; or may seek to extract that intention from the meaning of the language which he has used. It is in this latter sense alone in which construction is employed. The will must be in writing, and the only question is, what is the meaning of the words used in that writing? And to ascertain this, every part of it must be considered, with the help of those surrounding circumstances which are admissible in evidence to explain the words, and to put the court as nearly as possible in the situation of the writer. This was well expressed in Cole v. Rawlinson,[315] by Lord Holt when he said: "The intent of a testator will not do, unless there be sufficient words in the will to manifest that intent; neither is the intent to be collected from the circumstances of his estate, and other matters collateral and foreign to the will, but from the words and tenor of the will itself." The rule was well illustrated in the case of Doe v. Dring,[316] where a testator, intending, no doubt, to dispose of _all_ his property for the benefit of his family, used these words: "All and singular my _effects_ of what nature and kind soever." Lord Ellenborough said, that if he were asked his private opinion as to what the testator really meant when he used these words, he would reply, that he must be supposed to have meant that which his duty prescribed to him, to convey _all_ his property for the maintenance of his family; but as a _judge_, he was not at liberty to collect his meaning from matters _dehors_, but only from expressions used on the face of the will, and that the expression "effects" had always a meaning, in the absence of anything in the context, which necessarily excluded real estate. However, if the context shows that by the expression, "all my personal estates," the testator meant to include real property, it will be so held by reason of the clear intention manifested on the face of the will.[317] An introductory clause expressing a testator's desire to dispose of all the property he should "leave behind him" may be referred to, to construe the will as passing all lands belonging to the testator at the time of his death.[318] It is one of the most troublesome questions in law, as to how far parol evidence can be admitted to ascertain the intention of a testator. The principle was early established, that parol evidence should not be admitted to vary, contradict, or enlarge the terms of a will, and this is still rigidly adhered to. This was well established in what is known as Lord Cheney's Case,[319] where it is said that "otherwise it were great inconvenience that not any may know by the written words of the will what construction to make, if it might be controlled by collateral averment, out of the will." Chancellor Kent, in Mann v. Mann,[320] examined this subject with much industry and learning, and declared the result to be: that from Cheney's Case down to this day, it has been a well-settled rule that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two specific cases: 1st. Where there is a latent ambiguity arising _dehors_ the will, as to the person or subject meant to be described; and 2d. To rebut a resulting trust. What is a latent ambiguity is thus described in the quaint but expressive language of Lord Bacon: "_Latens_ is that which seemeth certain, and without ambiguity for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity; as, if I grant my manor of S to J F and his heirs, here appeareth no ambiguity at all; but if the truth be that I have the manors both of North S and South S, this ambiguity is matter in fact, and, therefore, it shall be holpen by averment, whether of them was that the party intend should pass." A patent ambiguity is one that is apparent on the face of the will, and is only to be remedied, by construction of the language, if possible. As, for example, if the devise is to one of the sons of J S, who has several sons, such an uncertainty in the description of the devisee cannot be explained by parol proof.[321] As a general rule, courts do not admit parol evidence in cases of patent ambiguity; but on this head there is a difference of decision in this country. We have no uniform rule throughout the United States, either by statute or construction, as to the extent to which parol testamentary evidence is admissible. In some States, the English rules will be followed in the main, which is to admit no extrinsic evidence except to explain a latent ambiguity. But in many of the States, undoubtedly, extrinsic evidence of the testator's circumstances, as distinguished from his intention, will be admitted in aid of the construction of any expression left ambiguous by the context.[322] In New York, the courts adhere to the English rule, and admit no extrinsic evidence, except to explain a latent ambiguity.[323] In Maryland, the strict rules of construction prevail, and no parol evidence is admitted except as in England.[324] The same is the rule in Ohio.[325] It seems to be a universally received doctrine in the American courts, that extrinsic evidence of the declarations of the testator, made at the time, before or after the execution of the will, cannot be received to show the intention of the testator by the use of particular words therein, or by its general scope; as, that by the use of the word "children" he meant to include step-children;[326] or that a bequest to the parent was intended for the children of such parent, who was known by the testator to have died; or that the term "children" was intended to include illegitimate children;[327] or in any sense to vary the express provisions of the will, or to show in what sense he used a well-settled term of law.[328] Nor are the declarations of the testator admissible to show the existence of a will at the time they were made.[329] But, in a case in Michigan, it was held, where, after the death of the testator, a will twenty-five years old was discovered in a barrel among waste papers, and either torn or worn into several pieces, which were scattered loose among the papers in the barrel, that the declarations of the testator, made after the date of the will, were admissible, not as separate and independent evidence of revocation, but as tending to explain whether the instrument was thus torn accidentally, or with intent to revoke.[330] The code of California has settled this question for that State; it excludes all declarations of the testator's intention.[331] To ascertain the intention of the testator from the language of the instrument, certain rules of construction have been established, which have obtained the acquiescence and authority of the courts. If technical words are used by the testator, he will be presumed to have employed them in their legal sense, unless the context contain a clear indication to the contrary.[332] Courts, therefore, have no right or power to say that the testator did not understand the meaning of the words he has used, or to put a construction upon them different from what has been long received, or what is affixed to them by the law.[333] There can be no place for construction, for the discovery of the testator's intention, when he has used words of an unequivocal, definite sense in law, and, however it may frustrate any presumed worthy designs, the import of the terms as used must prevail.[334] In Hicks v. Salitt,[335] the court said: "When a testator uses a word which has a well-known, ordinary acceptation, it must appear very certain that he has said, on the face of the will, that he uses it in another sense, before the ordinary sense can be interfered with.... In order to alter the meaning of a word, it must appear, not that the testator _might_ have meant it in a different sense, but that he _must_ have meant it in a different sense." The right of every testator to use words in a sense different from the technical legal sense, provided it is apparent, is well established and acknowledged. Thus, in deference to the context, the word "money" has been held to pass stock in the funds;[336] though its technical meaning, according to Coke, only implies gold and silver, or the lawful circulating medium of a country.[337] This technical meaning of the word was applied in Mann v. Mann,[338] where a testator bequeathed "all the rest, residue, and remainder of the _moneys_ belonging to his estate at the time of his decease," which was held not to comprehend promissory notes, bonds and mortgages, and other securities, there being nothing in the will itself to show that the testator intended to use the word in that extended sense. And the words "nephews and nieces" have been held to include great-nephews and great-nieces, different from the import of these terms as settled in law;[339] and the word "family" has been held to include a husband.[340] In the case of Hussey v. Berkeley,[341] Lord Nottingham, upon the question whether the testatrix intended to include great-grandchildren under the term grandchildren, considered the fact that she had, in another part of the will, called a great-grandchild her granddaughter, as conclusive evidence of her intention to include such great-granddaughter in the residuary clause of the will, under the general description of her grandchildren. The court is bound to give effect to every word of a will without change or rejection, provided an effect can be given to it not inconsistent with the general intent of the whole will taken together.[342] Thus, if one devises land to A B in fee, and afterwards in the same will devises the same land to C D, for life, both parts of the will shall stand; and in the construction of the law, the devise to C D shall be first.[343] But when it is impossible to form one consistent whole, the separate parts being _absolutely_ irreconcilable, the latter will prevail.[344] Thus, where the testator, by one clause of his will, bequeathed a slave to his son, remainder to his issue, remainder over; and by a subsequent clause bequeathed the same slave to his daughter, with like limitations, it was held that the clauses were inconsistent, and the last revoking the first, that the daughter was entitled to the legacy.[345] If a testator's intention cannot operate to its full extent, it shall take effect as far as possible.[346] And where a will contains different trusts, some of which are valid, and others void or unauthorized by law; or where there are distinct and independent provisions as to different portions of the testator's property, or different estates or interests in the same portions of the property are created, some of which provisions, estates, or interests are valid, and others are invalid, the valid trusts, provisions, estates, or interests created by the will will be preserved, unless those which are valid and those which are invalid are so dependent upon each other that they cannot be separated without defeating the general intent of the testator.[347] Words, in general, are to be taken in the ordinary and grammatical sense, unless a clear intention to use them in another can be collected.[348] Thus, in Young v. Robertson,[349] it is laid down: The primary duty of a court of construction, in the interpretation of wills, is to give to each word employed, if it can with propriety receive it, the natural ordinary meaning which it has in the vocabulary of ordinary life, and not to give words employed in that vocabulary an artificial, a secondary, and a technical meaning. Thus, a testator, in a clause of his will, provided that the share of the estate of any of his children dying without issue should be equally divided among the survivors of his children or grandchildren, and it was held that a step-daughter was not a surviving _child_ of the testator, within the intent and meaning of this clause of the will, so as to entitle her to a portion of the shares of one of the testator's daughters, who died without leaving issue, even though this step-daughter was acknowledged to be of the family, and treated there as a child.[350] And the word "children" does not, ordinarily and properly speaking, comprehend grandchildren or issue generally; these being included in that term is only permitted in two cases, viz., from necessity which occurs where the will would remain inoperative unless the sense of the word "children" were extended beyond its natural import, and where the testator has clearly shown by _other_ words that he did not intend to use the term "children" in its proper, actual meaning, but in a more extensive sense. In Osgood v. Lovering,[351] the word was held to include grandchildren, it being apparent from the context, that this was the meaning given by the testator.[352] This term imports legitimate children only;[353] but if it is notorious that a testator had no such legitimate children, but had others who went by reputation, and were acknowledged as his children, these can take under this term.[354] In Lord Woodhouslee v. Dalrymple,[355] a legacy was given "to the _children_ of the late C K, who shall be living at my decease"; C K being dead at the date of the will leaving illegitimate children, (of whom three were living at the testator's death) and not having had at the date of the will, nor having ever had, any _legitimate_ children, the three illegitimate children were held to be entitled. The word "issue" is a term of more general signification than children; it includes not only children, but all lineal descendants, however remote, for successive generations. It has been called by Lord Holt a _nomen collectivum_;[356] but this word has frequently been construed to signify children, where it was so apparent from the context.[357] The phrase, "dying without issue," in wills, for a long time occasioned much obscurity, and was a fruitful source of litigation. Thus, if an executory devise were limited to take effect on a dying without _heirs_, or on a failure of issue, or "without leaving issue," or "without _issue_," the limitation was held to be void, because the contingency was _too remote_, as these phrases being interpreted to mean an _indefinite failure of issue_, the vesting of the estate would thus be suspended beyond the period allowed by law. But other words used in the will might control this construction, as to show that the testator intended to limit the vesting of the estate to issue living at the time of the death of the first taker. This contrary intent would be inferred by the use of the words "living," or "leaving issue behind," or "without children." Unless such qualifying words, however, were used, the words "_dying without issue_" were construed as meaning an indefinite failure of issue.[358] The statute law of New York, and many of the States, has settled the construction of this term, as it is provided under these statutes that it shall be construed to mean _heirs_ or _issue_ living at the death of the person named as ancestor.[359] Gifts and devises are sometimes made to a "family," and the decisions have given to the word the same construction as "kindred," or "relations."[360] In Robinson v. Waddelon,[361] a testator gave all the residue of his effects to be equally divided between his two daughters and their husbands _and families_; the court rejected the words "husbands and families," and held that the two daughters took the residue equally and absolutely as tenants in common. Roper has the following observations on devises and bequests to a _family_: "The word _family_, when applied to personal property, is synonymous with "kindred" or "relations." If it be asked, of what family is A, the question will be answered by being informed from what person he is descended, and whoever is related by blood to that stock is related to, and of, the family of A. This being the _ordinary_ acceptation of the word, it may nevertheless be confined to particular relations by the context of wills; or the term may be enlarged by it, so that the expression may in some cases mean _children_, or _next of kin_, and in others may even include relations by marriage."[362] Personal chattels are not unfrequently described by reference to locality, as where a testator bequeaths the "household goods," "things," "property," or "effects" which are in or about a house. These words, it seems, in general, will not pass cash, bank notes, bonds, notes, or other _choses in action_ being in the house.[363] In Woolcomb v. Woolcomb,[364] a testator bequeathed to his wife all his household goods, and other goods, plate, and stock, within doors and without, and bequeathed the residue of his estate to J S. It was held that the ready money and bonds did not pass by the word _goods_, for then the bequest of the residue would be void. Bequests of "chattels and effects" are clearly adequate to pass the whole personal estate, yet where these words are collocated with household goods, they may be, and frequently are, restrained to articles _ejusdem generis_.[365] A testator, after several legacies of bank stock and other stock and money, concluded his will as follows: "The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen furniture, looking-glasses, crockery, etc., I give to my two daughters, etc.; these, with all money of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give to my two daughters, etc." The testator had several shares of bank stock and other stock, not specifically bequeathed. It was held that this bank stock and other stock did not pass under the above bequest.[366] The courts of equity, even in England, do not seem disposed to apply the rule _ejusdem generis_ with so much strictness as formerly. In the late case of Swinfen v. Swinfen,[367] it was decided that in a bequest particularized by one word, followed by general words, the latter was not to be restricted to things _ejusdem generis_; as where the bequest was, "all my estate at S or thereto adjoining, also all furniture, or other moveable goods here," it was held that the live-stock and implements of husbandry in and about the premises passed by the bequest. It was also held that money in the house at the time of the testator's death passed to the legatee. In Brown v. Cogswell,[368] where the bequest was of "all my household furniture, wearing apparel, and all the rest and residue of personal property, saving and excepting one feather bed," it was held to carry the entire residuum of personal property. A bequest of furniture in a particular house (except plate) will include plated articles in use in the house, the word "plate" meaning solid plate only. Such a bequest embraces only the articles permanently in use in the house.[369] Words, however, in a will, which if allowed to stand would produce repugnant and inconsistent results, may be rejected.[370] Others may be supplied where there is no doubt in regard to the words intended, and others may be transposed and changed to carry out the sense and intention of the testator.[371] The will must be most favorably and benignly expounded to pursue and effectuate, if possible, the intention of the testator,[372] and of two modes of construction, that is to be preferred which will prevent a total intestacy.[373] The strict rules of construction adopted in England, when strictly and unflinchingly applied, had often the effect of invalidating wills; but there has, of late, been evinced a tendency to relax this stringency of construction, and the proportion of wills and bequests which have been declared void for uncertainty has been constantly diminishing; and, at present, it is becoming more rare, unless through some fatal accident or miscarriage in the preparation of the instrument. The same tendency is observable in the decisions of the American courts. Construction with the aid of precedents and analogies is only resorted to to ascertain the intention of a testator; all construction is subordinate to that single purpose; and analogy and precedent should have no further influence when they lead one side of the intention. They should only be used as our assistants to this end. It will be found useful and appropriate, at the conclusion of this chapter, to give the seven propositions of Sir James Wigram, in his approved and reliable work respecting the admission of extrinsic evidence in aid of the interpretation of wills. He divided the subject into seven propositions, as follows: Proposition I.--A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed. Proposition II.--Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words, so interpreted, are _sensible with reference to extrinsic circumstances_, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they maybe capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered. Proposition III.--Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are _insensible with reference to extrinsic circumstances_, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, _with reference to these circumstances_, they are capable. Proposition IV.--Where the characters in which a will is written are difficult to be deciphered, or the language of the will is not understood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to _declare_ what the characters are, or to inform the court of the proper meaning of the words. Proposition V.--For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every _material_ fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator's words. Proposition VI.--Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (_except in certain special cases in Proposition VII_) will be void for uncertainty. Proposition VII.--Notwithstanding the rule of law which makes a will void for uncertainty where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, courts of law, in certain special cases, admit extrinsic evidence of _intention_, to make certain the _person_ or _thing_ intended, where the description in the will is insufficient for the purpose. These cases may be thus defined: Where the object of a testator's bounty, or the subject of disposition, (_i. e._, the _person_ or _thing_ intended) is described in terms which are applicable indifferently to more than one _person_ or _thing_, evidence is admissible to prove which of the persons or things so described was intended by the testator. INDEX. A. =Abatement=--of legacies, p. 96. =Accumulation=--how far allowed in common law, p. 143. extraordinary case of, p. 143. limits to, p. 145. =Acknowledgment=--of signature to will, p. 55. =Ademption=--of legacy, p. 97. =Age=--of person making will, pp. 68, 69. manner of reckoning, p. 69. extreme, not an incapacity, pp. 86, 87. =Alienation=--suspension of power in will, how limited, p. 146. utmost period permitted, p. 147. =Alfred, King=--will of, pp. 32, 33. =Ambiguity=--latent, definition of, p. 188. latent, parol evidence admitted to explain, p. 188. patent, what it is, p. 188. =Animals=--singular regard for in wills, pp. 77, 78. regard of Louis Bonard for, p. 82. =Annuity in will=--when to commence, p. 117. =Attestation=--of will, p. 64. forms of, p. 67. B. =Bacon, Lord=--maxim of, in regard to parol evidence, p. 129. =Bastard=--not classed in law as a child, p. 124. =Bequest=--meaning of, p. 93. =Blind persons=--their capacity to make will, p. 70. =Bonard, Louis=--will of, p. 82. singular life and belief of, pp. 81-83. =Bradford, Surrogate=--his principles in admitting will of aged persons, p. 88. =Brinckerhoff, Dorothea=--will of, p. 62. =Burial=--directions for, in will, pp. 10, 16, 21, 77. =Burning will=--a mode of revocation, p. 163. C. =Cancelation of will=--a mode of revocation, p. 163. what shall amount to, p. 169. =Canute=--will of, p. 32. =Capacity=--to make will, as to age, pp. 68, 85. physical and mental, pp. 69-71. =Charitable uses=--devises to, formerly allowed, pp. 132, 133. doctrine of, derived from civil law, p. 133. doctrine of, existed in common law, pp. 135, 141. this denied in Levy v. Levy, p. 139. law of, has varied in New York, p. 135. researches of Prof. Dwight on, p. 151. what are, p. 133. ="Chattels and effects"=--what shall pass by in will, p. 198. =Child=--does not include step-child, p. 195. illegitimate, when a bequest to is good, p. 124. in _ventre sa mere_ can take interest in will, p. 121. =Children=--meaning of term in will, pp. 121, 122, 195. imports legitimate only, p. 195. =Clergy=--early connection of with wills, p. 33. exclusive jurisdiction over wills, p. 35. intervention in probate matters, p. 34. their influence over the dying, pp. 36, 131. =Codicil=--how far will control provision in will, p. 161. when it will cancel a will, p. 162. how several are to be construed, p. 160. =Concanen, Edward=--will of, p. 111. =Conditions=--in will, how far legal, p. 107. illegal, p. 113. precedent and subsequent, what are, pp. 103, 104. =Construction=--of will, purpose of, pp. 185, 191. =Constantinople=--bequest to poor of, p. 86. =Corporations=--prohibited from taking by devise, p. 132. what are allowed to take by devise in New York, p. 142. =Coverture=--formerly incapacitated woman making will, p. 90. not now generally an incapacity, p. 91. =Cromwell=--singular bequest to, p. 18. =Cruger, Harriet Douglas=--will of, p. 84. her history and singular delusion, p. 85. =Curtesy=--married woman cannot defeat right in will in some States, p. 92. married women may defeat in New York, p. 92. =Cutting=--a will equivalent to tearing, p. 164. D. =Deaf and dumb=--their capacity to make will, pp. 69, 70. =Declarations=--of testator, not admitted to show intention in a will, p. 190. =Delusion=--what it is, pp. 72, 75. of Harriet Douglas Cruger, p. 85. =Denbigh, Earl of=--singular bequest to, p. 17. =Devise=--meaning of term, distinguished from legacy, p. 93. =Domicile=--how determined, p. 175. law of relating to wills part of leges gentium, p. 173. law of governs in interpretation of wills, p. 175. law of at time of decease governs, p. 176. =Drunken men=--when incapable of making will, p. 71. E. =Eccentricity=--difference between and monomania, p. 76. remarkable case of, p. 76. =Ecclesiastical=--jurisdiction over wills, rise of, p. 35. courts' decisions binding in law of wills, p. 40. ="Effects"=--meaning of in will, pp. 187, 198. meaning of in will of Kosciusko, p. 179. =Emptor familiæ=--position of in Roman law, p. 31. =Erasures=--and interlineations in a will, effect of, p. 169. =Executor=--appointment of in will, p. 52. allowed a year to settle estate, p. 114. duty of in paying legacy to child, p. 118. not disqualified to receive legacy, p. 120. responsibility of in paying legacies, p. 114. when to pay legacy, pp. 114, 115. F. ="Family"=--construction of term in will, pp. 192, 197. explanation of term by Roper, p. 197. =Female=--able to make will earlier than male in some States, p. 69. =Females=--their fondness for animals, p. 77. =Fraud=--preventing revocation of a will, pp. 166, 168. =Funeral expenses=--provided for in will, pp. 11, 14. directions for payment not necessary, p. 51. G. =Geigley, William=--will of, p. 108. =Grandchildren=, construction of term in will, p. 193. =Greenwood=, singular delusion of, p. 73. H. =Harcourt, Mr. Granville=--will of, p. 13. =Hæres=--of Roman law, description of, p. 30. =Henry VIII=--will of, providing for dean and canons of Windsor, p. 24. =Hindoos=--no will among, p. 31. =Holographic will=, p. 50. singular example of in California, p. 50. =Hunt, Benjamin F.=--will of, illustrating law of domicile, p. 176. I. =Insanity=--definition of, p. 72. partial not recognized in early law, p. 73. partial, how far invalidates a will, p. 74. =Interest=--on legacies, when to commence, p. 116. on specific legacies, p. 117. on legacy before payment causes legacy to vest, p. 100. =In terrorem=--doctrine of, pp. 111, 112. =In extremis=--persons in allowed to make nuncupative wills, p. 43. persons in frequently unduly influenced, p. 135. =Intention=--governs in the construction of a will, pp. 95, 101, 185. most considered in revocation of will, p. 168. governs so far as consistent with rules of law, p. 185. how ascertained, p. 185. to operate as far as possible, if not wholly, p. 193. ="Issue"=--meaning of term in a will, p. 196. ="Issue, dying without"=--former construction of, p. 196. meaning now by statute, p. 197. J. =Jefferson=--farm of, at Monticello, devised by Commodore Levy, p. 106. given charge of fund belonging to Kosciusko, p. 179. =Justinian=--law of as to portion reserved for children, p. 32. limited bishop's interference in probate matters, p. 34. limited military testament to those actually on an expedition, p. 48. K. =Kensett, William=--singular disposition of his body, p. 77. =Kerr, Catharine=--will of, p. 58. =Kidd, Captain=--treasures of, superstition regarding, p. 79. =Kosciusko=--will of before United States Supreme Court, p. 178. interesting facts regarding his career, p. 179 L. =Latent ambiguity=--what is, p. 188. =Legacy=--abatement of, p. 96. ademption of, when takes place, p. 97. contingent, definition of, p. 97. conditional, and variety, pp. 103-105. conditional, what conditions are valid, p. 103. conditional, in restraint of marriage, p. 107. general, examples of, pp. 93-95. general, importance of distinction, p. 96. in lieu of dower draws interest from death of testator, p. 117. interest on, when to begin, pp. 116, 117. payable out of real estate, pp. 100, 102. payment of, pp. 114, 115. payment of, to whom, p. 118. pecuniary sometimes held specific, p. 95. specific, definition of, p. 93. specific, various examples of, p. 94. to infants, to whom paid, p. 118. to a class, who shall take, p. 122. vested, when becomes, pp. 99, 100. =Legatee=--how ascertained in some cases, p. 125. error in description of, how remedied, p. 126. who may be, p. 119. =Levy, Commodore=--remarkable will of, p. 136. =Lex domicilii=--governs will of personal property, p. 174. =Lex rei sitæ=--governs will of real property, p. 182. M. =Marriage=--revokes will previously made by a woman, p. 157. of children, attempt to control, p. 113. restraint of, how far legal, p. 111. of poor maids, provisions of Henry Raine for, pp. 133, 134. =Married women=--capacity to take legacy or devise, p. 119. legacy to, formerly paid to husband, p. 119. power of to make will of personal property, p. 91. law of American States is giving more enlarged privileges to, p. 91. power of, by will in New York, p. 92. =Masses=--legacy to say, pp. 21, 25. =May, Thomas=--singular bequest to, p. 17. ="Money"=--strict meaning of, in a will, p. 192. may include stock in funds, p. 192. held to include real and personal property, p. 192. =Monticello=--devised by Commodore Levy, p. 136. =Monomania=--what it is, recognition of in law, p. 73. when will avoid will, p. 75. rise of theory in Dew v. Clark, p. 74. different from eccentricity, p. 76. N. =Nephews and nieces=--who are meant by, p. 192. =Non compos mentis=--incapacity of to make will, p. 71. who are, p. 72. =Nuncupative will=--its nature, p. 42. limitations of in Statute of Frauds, p. 43. generally limited to soldiers, sailors, and persons in extremis, p. 43. decision on in Cole v. Mordaunt, p. 44. cases on numerous, since civil war, p. 49. opinion of Kent in relation to, p. 45. was in general use before Statute of Frauds, p. 42. how limited in New York and California, p. 48. limitations of, by statute in England, p. 48. O. =Ordinary=--his privileges in early English law, p. 37. P. =Parol evidence=--when admissible, pp. 123, 126, 129, 160. of contents of lost will is received, p. 160. is not so readily in England, p. 161. not admitted to vary, contradict, or enlarge the terms of a will, p. 187. in what cases is admitted, p. 188. =Pembroke, Earl of=--curious will of, p. 15. =Perpetuities=--statute against, p. 150. =Personal estate=--when a bequest of may be specific, p. 97. may include real estate sometimes, p. 87. =Personal property=--age at which will of may be made, p. 68. ="Personalty"=--meaning of term in will, p. 120. law of domicile governs in wills, p. 173. ="Plate"=--meaning of term in will, p. 200. =Power=--execution of, in a will, p. 52. =Power of appointment=--given married women to make will, pp. 52, 91. =Publication of will=--and in what States required, pp. 60-64. R. =Raine, Henry=--will of, p. 132. =Rationabiles partes=--meaning of in early English law, p. 36. =Reading, Mrs. Kitty Jenkyn Packe=--will of, p. 11. =Real estate=--legacy payable out of, rule as to, p. 100. will of, pp. 38, 69. =Restraint of marriage=--in will, p. 107. curious case of, p. 113. not permitted in Roman law, p. 107. of widow allowed in our law, p. 110. of widower not allowed, p. 111. in general not permitted, p. 113. =Revocation of will=--may take place in two modes, p. 152. an implied revocation a subject of discussion, p. 153. by marriage of feme sole, p. 153. implied not by birth of child, p. 153. by marriage and birth of child implied, p. 154. by subsequent will, when, pp. 159, 162. not effected by writing "obsolete" on will, p. 162. by burning, canceling, tearing, etc., p. 163. what acts amount to in New York, p. 165. requires two things--act and intent, p. 166. =Ridley, Hon. Araminta Monck=--will of, p. 106. =Robbins, James=--will of, p. 110. =Roman will=--nature, and manner of making, p. 32. =Roman Catholic=--not to marry a, a condition in will, pp. 106, 111. =Roosevelt=--will of, founding hospital in New York, p. 149. =Rose=--will of declared void, founding "Rose Benevolent Institution," p. 150. S. =Salisbury, Earl of=--singular bequest to, p. 17. =Sandwich, Countess Dowager=--will of, p. 11. =Scotchman=--not to marry a, a condition in a will, p. 106. =Seal=--not required in will, except in New Hampshire, p. 52 =Seastedt, Eliza=--will of, p. 63. =Senile dementia=--what it is, p. 86. when an incapacity to make will, p. 87. ="Servants"=--meaning of term in a will, p. 125. =Shakspeare=--will of, p. 21. his singular provision for his wife, p. 22. =Signature=--to will, effect of tearing off by a testator, p. 170. =Society for Prevention of Cruelty to Animals=--bequest to, p. 82. =Solon=--laws of relating to wills, p. 31. =Specific legacy=--defined, p. 93. interest on begins from testator's death, p. 116. =Starkey, John=--will of, p. 14. =Statute=--of Distributions, p. 37. of Frauds, pp. 38, 44, 53. of Frauds, influence of in jurisprudence, p. 38. of Mortmain, pp. 132, 135. of Wills, p. 38. of 43 Elizabeth in regard to charitable uses, p. 133. of 43 Elizabeth not in force in New York, p. 135. of 43 Elizabeth, where in force, p. 141. =Subscription=--to will, p. 55. =Succession, universal=--among Romans, p. 30. =Superstitious use=--definition of, pp. 132, 133. =Surrogate=--derivation of term, p. 40. T. =Testament=--meaning of term, p. 41. =Testamentary capacity=--generally exists, p. 68. as to age, p. 68. =Testamentary disposition=--law places limits on, pp. 130, 142. limits to, in early English law, p. 36. =Thelusson, Peter=--extraordinary will of, p. 143. =Thompson, Mr.=--singular habits of, p. 78. =Tonnele, John=--will of, p. 56. =Trusts=--what are valid in a will, p. 140. =Turner, Sharon=--will of, p. 12. U. =United States=--bequests to, pp. 136, 140, 150. =Uses and trusts=--law of, to avoid Statute of Mortmain, p. 132. V. =Van Hanrigh, Mrs.=--will of, p. 14. =Virginia=--bequest to, in trust, by Commodore Levy, p. 133. W. =West, Lady Alice=--curious will of, p. 18. =Wife=--who will answer for in a will, p. 124. reproachful allusions to in a will, pp. 11, 12. affectionate allusions to in a will, pp. 13, 14. =Will=--acknowledgment of signature to, p. 55. appointment of executor in, p. 52. attestation of, p. 64. definition and nature of, p. 41. destroying, what it signifies, p. 164. directions in as to burial, pp. 10, 11, 16, 77. directions in as to debts, p. 51. divided into two classes, verbal and written, p. 42. duplicate, effect of destroying, p. 163. erasures in, p. 163. holographic, and where valid, p. 50. importance of, p. 9. inofficious, pp. 31, 75. introductory clause in, p. 51. language of, immaterial, p. 53. making, solemnity of act, pp. 9, 51. may consist of many instruments, pp. 52, 158. mode of writing, p. 53. nature of, among Romans, pp. 31, 32. not of effect until death, pp. 121, 152. opinions of others in, freely expressed, pp. 10, 15. of personal property, pp. 68, 121. of real estate, p. 69. of real estate, must conform to law where real estate is situated, p. 182. power of disposition by, in early law, p. 36. publication of, where required, pp. 60-64. qualities of, p. 152. references to wives in, pp. 11, 12, 110. restraints on marriage in, pp. 14, 105-108, 111. requisites as to execution of, p. 55. right to make did not exist in early society, p. 30. seal not required in, p. 52. signing of, how under Statute of Frauds, p. 54. signing of, illustrated in cases, pp. 56, 60. what it is necessary to contain, pp. 50, 51. witnesses to, number required, p. 64. =Widow=--prohibited remarrying by will, p. 108. recommended to marry, p. 13. =Widower=--cannot be prohibited remarrying by will, p. 110. =Witnesses=--manner of signing by, pp. 64-66. number required in different States, p. 64. cannot take interest by the will, p. 119. cutting out names of in will, effect of, p. 164. Z. =Zimmerman=--will of, p. 10. FOOTNOTES: [1] Illustrated London News, October 18th, 1873. I have selected from this reliable journal many of the examples of curious wills I give in this introduction, taken from Doctors' Commons, London. [2] Illustrated London News, February 21st, 1874. [3] Illustrated London News, November 8th, 1873. [4] Black. II, 21. [5] Thirlwall: Hist. of Greece, 187. [6] Dwight's Introd. to Maine's Ancient Law. [7] Tac. Germ. 2. [8] Dig. lib. 28, tit. 2. [9] Spence: Eq. Juris. I, 188. [10] Selden: Orig. Prob. Juris., 15. [11] Milton, p. 318. [12] Selden, pp. 3, 4. [13] Code: lib. I, tit. 3, leg. 42. [14] Idem, leg. 41. [15] Decret. lib. 3, tit. 26, C. 19. [16] Marriot v. Marriot, 1 Strange 667. [17] Black. III, 95. [18] Matt. Paris, fo. 56. [19] Idem, fo. 161. [20] 1 Strange 667. [21] Black. II, ch. 32. [22] Hale, Hist. of Com. Law, 28. [23] Greenleaf, Evid., vol. I, §26. [24] Lord Hardwicke, in Ross v. Ewer, 3 Atk. 156, said: "There is nothing that requires so little solemnity as the making of a will of personal estate. There is scarcely any paper writing that will not be admitted as such." [25] Moore, 177. [26] Cro. Eliz. 100. [27] It should be observed that the ecclesiastical jurisdiction over wills is now abolished in England; and, since 1857, the jurisdiction is given to the Court of Probate and Divorce. [28] Wills--A. [29] Swinb. Pt. I, Sec. 12. [30] 29 Car. II, Ch. 3, Sec. 23. [31] Dig. lib. 37, tit. 12, Sec. 1. [32] Redfield on Wills, I, p. 184. [33] 20 Johns. 511. [34] Cole v. Mordaunt, 4 Ves. 196. [35] Prince v. Hazleton, 20 Johns. 513. [36] 1 Vict. ch. 26. [37] 2 R. S. 60. [38] Civil Code, 1289-90. [39] Code, lib. 6, tit. 21. [40] Leathers v. Greenacre, 53 Maine 561. [41] 2 Curteis 339. [42] 4 Bradf. 154. [43] Such a will is valid in California, Louisiana, Tennessee, and North Carolina. In the case of Clarke v. Ransome, decided in the Supreme Court, California, October, 1875, the following document was on this ground held to be testamentary in its character: "DEAR OLD NANCE:--I wish to give you my watch, two shawls, and also $5,000. Your old friend, E. A. GORDON." It appeared in evidence that for some years Mrs. Gordon and Miss Ransome, who was the person meant by "dear old Nance," had been on terms of intimacy. Mrs. Gordon had previously executed a will, by which she had devised to her brother the whole of the estate, with the exception of several specific legacies, one of which was to Miss Ransome for $1,000. It further appeared that after the will had been duly made and executed, Mrs. Gordon desired to make a further provision for Miss Ransome, and for that purpose drew up, wholly in her own handwriting, and delivered to Miss Ransome, the paper above propounded as a will. The court held that this paper should be admitted to probate as a testamentary instrument; but against this Chief Justice Wallace gave a dissenting opinion, on the ground that the paper was the mere expression of a wish, and was not intended by the decedent to operate as a will. Vide Pacific Law Rep., Nov. 9, 1875. [44] Redfield on Wills, I, p. 675. [45] Swimb. Pt. I, Sec. 3. [46] Redfield on Wills, I, p. 5. [47] N. H. Rev. Stat. Ch. 156, Sec. 6. [48] Hight v. Wilson, 1 Dall. 94; Arndt v. Arndt, 1 S. & R. 256. [49] Campbell v. Logan, 2 Bradf. 90. [50] Swimb., Pt. 4, Sec. 25. [51] The statute of Pennsylvania requires every will to "be in writing," and the curious question was recently presented to the Court of Common Pleas of Chester County, whether a writing on a slate, intended by the decedent to be her last will and testament, came within the statute. The court thought the case not within the spirit of the statute, because a slate was neither intended for nor adapted to writing of a permanent character. The rule has been carried quite far enough by the admission to probate of wills written with lead pencils, as was done in Dyer's Estate, 3 Ecc. E. 92, and in Dickson v. Dickson, 1 Id. 222. In 21 P. F. Smith, 454, it was thought that a will should not be written or signed in pencil, on account of the facility of alteration; but the point was not decided. In Merritt v. Clason, 12 Johns. 102, a memorandum required by the Statute of Frauds, written with a lead pencil, was held sufficient, and in Clason v. Bailey, 14 Johns. 484, this point was affirmed. In Rymes v. Clarkson, 1 Phillim. 22, it was ruled that a codicil written in pencil was valid. See also Geary v. Physic, 5 Barn. and Cress. 234, and McDowell v. Chambers, 1 Strobh. Eq. 347. [52] Jarman on Wills, 70. [53] Civil Code, 1276. [54] 2 Rev. Stat. 63. [55] Doe v. Roe, 2 Barb. 200. [56] Seguine v. Seguine, 2 Barb. 385, 395. [57] 4 Comst. 140. [58] McGuire v. Kerr, 2 Bradf. 244. [59] Civil Code, 1276. [60] Dayton on Surrog. p. 78. [61] 1 Barb. 533. It is claimed he may subscribe in presence of one, and acknowledge it separately to the other. 4 Kent, 516; 36 N. Y. 416. [62] 10 Barb. 608. [63] Den v. Mitton, 7 Halst. 70. [64] Torrey v. Bowen, 15 Barb. 304. [65] Lewis v. Lewis, 1 Kern. 222. [66] 1 Denio, 33. [67] 26 Wend. 325. [68] Not yet reported; may be in 59 N. Y. [69] Ruddon v. McDonald, 1 Bradf. 352; Lyon v. Smith, 11 Barb. 124. [70] Davy v. Smith, 3 Salk. 395. [71] Doe v. Manifold, 1 M. & S. 294. [72] Reed v. Roberts, 26 Ga. 294. [73] Lamb v. Girtman, 26 Ga. 625. [74] Black. II, 497. [75] Redfield on Wills, I, 15. [76] 2 Rev. Stat. 60. [77] 1 Salk. 44. [78] Black. I, 463; 2 Kent, 233. [79] Wills, I, 20. [80] Com. II, 497. [81] Wills, B. [82] Weir v. Fitzgerald, 2 Bradf. 42. [83] Swinb. Pt. II, Secs. 1 and 6. [84] No better illustration of this ever took place than the case of the will of Captain Ward, over whose will a remarkable contest is taking place [1875] in Detroit. [85] Sir John Nicholl, in Dew v. Clark, 3 Add. 79. [86] White v. Wilson, 13 Vesey, 88. [87] The case of Lucas v. Parsons, 24 Ga. 640, was very similar to this case of Greenwood. There, the testator's delusion was in respect to his eldest son, whom he disinherited. The will was set aside. [88] 3 Add. 75. [89] 33 N. Y. 619. [90] 11 Penn. L. I. 179. [91] Taylor, Med. Jur. p. 657. [92] Mr. William Kensett, whose will was proved in Doctors' Commons, London, in 1855, left his body to the Directors of the Imperial Gas Company, London, to be placed in one of their retorts, and consumed to ashes; if not, he directed it to be placed in the family grave in St. John's Wood Cemetery, _to assist in poisoning the neighborhood_. Generally the curious wills are home-made, but this of Mr. Kensett was made by a solicitor. [93] Taylor, p. 658. [94] Redfield on Wills, I, p. 84. In June, 1828, the London papers recorded the singular will of a testator named Garland, containing the following clause: I bequeath to my monkey, my dear and amusing Jacko, the sum of £10 sterling per annum, to be employed for his sole use and benefit; to my faithful dog Shock, and my well-beloved cat Tib, a pension of £5 sterling; and I desire that, in case of the death of either of the three, the lapsed pension shall pass to the other two, between whom it is to be equally divided. On the death of all three, the sum appropriated to this purpose shall become the property of my daughter Gertrude, to whom I give the preference among my children, because of the large family she has, and the difficulty she finds in bringing them up.--Ill. London News, March 2d, 1874. [95] 2 Bradf. 449. [96] I am indebted to an admirable essay by Edward Patterson, Esq., of the New York Bar, for the full facts in this case. [97] 29 Eng. L. and Eq. 38. [98] Kinleside v. Harrison, 2 Phillm. 419. [99] 1 Wms. Exrs. 36; Potts v. House, 6 Ga. 324. [100] 5 Johns. Ch. 148. [101] 2 Bradf. 360. [102] 2 Kent 175. [103] Tucker v. Inman, 4 M. & G. 1049. [104] Gen. Stat., 1855. [105] Black. II, 497. [106] Redfield on Wills, I, 26. [107] 2 Lans. (N. Y.) 21. [108] Toucht. 433. [109] 1 Atk. 417. [110] Richards v. Richards, 9 Price 219. [111] Toucht. 433. [112] Selwood v. Mildmay, 3 Ves. 306; 1 Bro. C. C. 477. [113] Ellis v. Walker, Amb. 310; Kirby v. Potter, 4 Ves. 748; Tifft v. Porter, 8 N. Y. 516. [114] 1 Atk. 508. [115] 3 Bro. C. C. 416. [116] Richards v. Richards, 9 Price, 226. [117] Barton v. Cooke, 5 Ves. 461. [118] Walton v. Walton, 7 Johns. 258. [119] 2 Ves. Sen. 561. [120] Wms. Exrs. 994. [121] 1 Roper, 215. [122] Sayer v. Sayer, 2 Vern. 688. [123] 5 Ves. 150. [124] Duncan v. Alt, 3 Penn. 383. [125] Wms. Exrs. 759. [126] Idem. 1035. [127] Bacon's Ab. Leg. (E); 2 Vent. 342; Moore v. Smith, 9 Watts, 403. [128] 11 Wend. 259. [129] 2 Vern. 673; Van Wyck v. Bloodgood, 1 Bradf. 154. [130] Collins v. Metcalfe, 1 Vern. 462. To avoid the lapse of a legacy by the death of the legatee during the lifetime of the testator, the following States have provided against it, if any issue of the legatee be living at the death of the testator: Pennsylvania, South Carolina, Virginia, Maryland, Massachusetts, Connecticut, Vermont, New Jersey, Mississippi, Maine, Rhode Island. (4 Kent, 542.) [131] 1 Roper, 216; 1 Paige, 33; Harris v. Fly, 7 Paige, 429; Sweet v. Chase, 2 N. Y. 73. [132] May v. Wood, 3 Bro. 471. [133] Barlow v. Grant, 1 Vern. 255. [134] Duke of Chandos v. Talbot, 2 P. Wms. 612; Smith v. Smith, 2 Vern. 92. [135] 1 Roper, 645. [136] Bacon's Ab. Leg. (F.) [137] 37 Miss. 114. [138] 2 Meriv. 26. [139] Moore v. Moore, 47 Barb. 257. [140] 2 Salk. 570. [141] Randall v. Payne, 1 Bro. C. C. 55. [142] A legacy was sometimes given on condition that the legatee should not marry a Roman Catholic. As late as April, 1869, the Hon. Araminta Monck Ridley, in London, left a clause in her will that "if any or either of my said children, either in my lifetime, or at any time after my decease, _shall marry a Roman Catholic_, or shall join or enter any Ritualistic brotherhood or sisterhood, then in any of the said cases, the several provisions, whether original, substitutive, or accruing, hereby made for the benefit of such child or children, shall cease and determine, and become absolutely void." [143] Perrin v. Lyon, 9 East. 170. [144] Scott v. Tyler, 2 Bro. C. C. 488. This is a leading case, and the arguments of the leading counsel engaged contain much of the law on the subject. See Amb. 209. [145] Godolp. Leg. 45. [146] Godolp. 46. [147] 2 Redfield, 295. [148] Commonwealth v. Stauffer, 10 Penn. 350. [149] L. R. 19 Eq. 631. [150] 2 J. and H. 356. [151] In the following instance, a testator is not content only to have his wife remain a widow--he must have her display the appropriate _insignia_ of her situation. Mr. James Robbins, whose will was proved in October, 1864, in London, declares: "That, in the event of my dear wife not complying with my request, _to wear a widow's cap after my decease_, and in the event of her marrying again, that then, and in both cases, the annuity which shall be payable to her out of my estate shall be £20 per annum and not £30." As there was no stipulation as to the time the widow's cap was to be worn, probably Mrs. Robbins found it easy to comply with the letter of the request in her husband's will, and yet indulge her own taste in the matter. In contradistinction to this was the will of Mr. Edward Concanen, proved in 1868. He says: "And I do hereby bind my said wife that she do not, after my decease, offend artistic taste, or blazon the sacred feelings of her sweet and gentle nature, by the exhibition of a widow's cap." [152] Wills, Pt. 4, Sec. 12. [153] 1 Ch. Ca. 22. [154] Parsons v. Winslow, 6 Mass. 169. [155] 2 Ves. 265. [156] Garret v. Pritty, 2 Vern. 293. [157] The case of Bayeaux v. Bayeaux, 8 Paige, 333, is a curious example of an attempt made by a testator to regulate and control the choice of his children in marriage. The testator died at the city of Troy, in March, 1839, leaving a widow and three infant children. By his will, made a few months before his death, and evidently without the aid or advice of counsel, he placed the following condition on a legacy to his children: "I charge upon my children, in every possible case, and under all circumstances, never to make a matrimonial engagement, or bind themselves to any individuals by promise of marriage, without full parental approbation and consent as it regards the favored individual. And while I consider it unjust as well as unwise for a parent to coerce, or to attempt forcibly to induce a child to marry an object it cannot love, so do I also deem it without any possible excuse on the part of the child to marry without the full consent of the parents. And in the event of disobedience on the part of my child, in this respect, my wish, desire, and intention is to cut that child off from any participation of the benefits arising from any property I may leave at my decease, of every kind and description whatever." The provisions of the will were in many respects so vague and indefinite, that Chancellor Walworth remarked: "It is very evident that this will was drawn by the decedent himself, or by some other person equally ignorant, not only of legal language, but of legal principles." He held that the children took the same shares as if their father died intestate. [158] Lord Comyns' Rep. 728. [159] Brown v. Peck, 1 Eden. 140. [160] 10 Ves. 13. This was the time allowed in the civil law, 2 Salk. 415. [161] 2 Rev. Stat. 90. [162] Benson v. Maude, 6 Madd. 15. [163] 2 Vern. 31. Roden v. Smith, Amb. 588. [164] Cricket v. Dolby, 3 Ves. 13. [165] Nevil v. Nevil, 2 Vern. 431. [166] Joe v. Hart's Executors, 2 J. J. Marsh. 351. [167] 1 Hawks 241. [168] Fawkes v. Gray, 18 Ves. 131. [169] Wms. Exrs. 1221; 2 Bradf. 77. [170] 8 Ves. 410. [171] Poph. 104. [172] Marsh v. Hague, 1 Edw. Ch. 174. [173] Ves. 10. [174] Wms. Exrs. 1222. [175] Williamson v. Williamson, 6 Paige, 298. [176] 5 Binney 475. [177] 1 Vern. 251. [178] 1 Johns. Ch. 3. [179] Wms. Exrs. 1206-7. [180] 2 Rev. St. 450. [181] Palmer v. Trevor, 1 Vern. 261; Toller 320. [182] Wms. Exrs. 1213. [183] 2 Rev. St. 65. So in California: Civil Code 1282. [184] 1 Seld. 125. [185] Morris v. Kent, 2 Edw. Ch. 182; Preston on Leg. 281. [186] The word "children" includes only the immediate legitimate descendants, and not a step-child: Cromer v. Pinckney, 3 Barb. Ch. 466; Mowatt v. Carrow, 7 Paige, 339. Nor does it include grandchildren: Radcliff v. Buckley, 10 Ves. 195; 4 Watts, 82. [187] Sherer v. Bishop, 4 Bro. C. C. 55; 2 Ves. 84. [188] Doe v. Clark, 2 H. Bl. 399; Balm v. Balm, 3 Sim. 492. [189] 1 Barb. Ch. 637; Wms. Exrs. 934. [190] Rawlins v. Rawlins, 2 Cox's Ca. 425; Marsellis v. Thalheimer, 2 Paige, 35. [191] Jenkins v. Freyer, 4 Paige, 47. [192] Collin v. Collin, 1 Barb. Ch. 630. [193] 2 Paige, 11. [194] Pratt v. Flamen, 5 Har. & Johns. 10. [195] Garrett v. Niblock, 1 R. & M. 629; Lady Lincoln v. Pelham, 10 Ves. 106. [196] Schloss v. Stiebel, 6 Sim. 1. [197] 1 Jarman, 306. [198] Vol. II, 96. [199] Connolly v. Pardon, 1 Paige, 291. In Thomas v. Stevens, 4 Johns. Ch. 607, a legacy to Cornelia Thompson was held a good bequest to Caroline Thompson, it appearing that she was the person intended. [200] Standen v. Standen, 2 Ves. Jr. 589. [201] See Chap. VIII. [202] 4 Ves. 680. [203] 2 Cha. Ca. 51. [204] 3 Bro. C. C. 311. [205] 3 Ves. 148. [206] Vide the case of Shakspeare, Introduction, p. 23. [207] 2 N. Y. Rev. St. 57; Civil Code Cal. 1275. In Indiana, Massachusetts, and Pennsylvania, there is no Mortmain act. [208] Charitable Uses (D). The doctrine of Superstitious Uses cannot be to much extent applicable here, as we have no religion recognized and established by the State. [209] Vide Will of Lady Alice West, p. 18. [210] Ch. Prec. 272. Eyre v. Countess of Salisbury, 2 P. Wms. 119. [211] Lord Hardwicke, in Jones v. Williams, Amb. 651, defines a charitable use as "a gift to a general public use, which extends to the poor as well as the rich." [212] It may be thought a singular purpose of charity to provide for the "marriages of poor maids," and one that would accomplish but little in a field where the objects would be so numerous; nevertheless, the benevolent designs of men have been turned in that channel, as well as in other various directions mentioned in the statute. By the will of Mr. Henry Raine, a wealthy London brewer, a fund was established for just such a purpose. Among the notable charitable institutions of London, there is none more novel in inception or more unique in management than Raine's Asylum, established by him in 1736, for clothing, educating, and properly training for domestic service forty young girls, taken from a lower school previously established by him. On arriving at the age of twenty-two, any girl who has been educated in the asylum, and who can produce satisfactory testimonials of her conduct while in service, may become a candidate for a marriage portion of one hundred pounds, for which six girls are allowed to draw twice in each year, on the first of May and the fifth of November. The drawing is in this manner: The treasurer, in compliance with the explicit directions of Mr. Raine, takes a half sheet of white paper and writes thereon the words, "one hundred pounds." Next, he takes as many blank sheets as, with the one written on, will correspond with the number of candidates present. Each of these half sheets is wrapped tightly round a little roller of wood, tied with a narrow green ribbon, the knot of which is firmly sealed. The rolls are then formally deposited in a large canister placed upon a small table in the middle of the room. This being done, the candidates, one at a time, advance towards the canister, each drawing therefrom one of the small rolls. When all have drawn, they proceed to the chairwoman, who cuts the ribbon which secures each roll, and bids the candidates unfold the various papers. There is no need to ask which of them has gained the prize--the sparkling eyes of the fortunate "hundred-pound girl" reveal the secret more quickly than it could be spoken by the lips. The scene seems to be one in which Mr. Raine took deep interest, for in his will, after appointing his nephews to purchase £4,000 stock in order to make a permanent provision for these marriage portions, he says: "I doubt not but my nephews would cheerfully purchase the said stock if they had seen, as I have, six poor innocent maidens come trembling to draw the prize, and the fortunate maid that got it, burst out in tears with excess of joy." The portion drawn in May is given after a wedding on the fifth of November; the November portion being given in like manner on May day. The author witnessed one of these marriage ceremonies in the church of St. George's-in-the-East. The number of marriage portions given since the opening of the asylum is said to exceed three hundred. [213] This statute has been adopted in Massachusetts, North Carolina, Kentucky, Indiana, Pennsylvania, and several other States. 2 Kent 285. In Pennsylvania, the will, to make a valid devise to charitable uses, must be made a month before the testator's decease. Price v. Maxwell, 28 Penn. 23. [214] 8 N. Y. 525. [215] 33 N. Y. 97, reversing 40 Barb. 585. [216] The case of the Smithsonian Institute was adduced as an argument to show that the United States could take by devise. In that case Mr. Smithson, an Englishman by birth, and a citizen of that country, bequeathed to the United States all, or nearly all, of his property, to be applied to the establishment of an institution for the increase and diffusion of useful knowledge. But Wright, J., said that this furnished no evidence of capacity, simply as a political organization, to take and hold property for charitable purposes. That was an English charity, and the case was determined by the law of the domicile. It was a charity under the statute of Elizabeth, and administered as such, and took effect only on a law of Congress organizing the institution in the District of Columbia. [217] In New York, as in many if not all the States, the law relating to trusts as it formerly existed in England in its intricate details, has been abolished, and only express, active trusts are permitted, where the trustee has some active duty to perform in the management of the estate. These express trusts are of four kinds: 1. To sell land for the benefit of creditors; 2. To sell, mortgage, or lease lands, to pay legacies or other charges; 3. Where the trustee is authorized to receive the rents and profits, and apply them to the use of some person during his life, or for a shorter period; 4. To receive rents and income to accumulate for the benefit of minors, to cease at majority. The same trusts only are allowed in California: Civil Code 857. It is therefore held that all trusts, for any purpose whatever, not coming under one of these four classes, are void, as it was apparent in the enumeration of these the legislature intended to exclude all others. Hence, in the drawing of wills, attention is most particularly needed to see that no trusts are created other than those above. [218] 34 N. Y. 584. It is not uncommon for persons to devise property to the United States Government. The last case in New York was somewhat singular. It is in the case of United States v. Fox, in 52 N. Y. 530. The testator there devised "to the Government of the United States at Washington, District of Columbia, for the purpose of assisting to discharge the debt contracted by the war for the subjugation of the rebellious Confederate States." It was held that the government had no capacity to take. This case is now appealed to the Federal Courts, but with little prospect of reversal. [219] Burbank v. Whitney, 24 Pick. 146; Beall v. Fox, 4 Ga. 404; Griffin v. Graham, 1 Hawks, 96; 7 Vt. 249; Vidal v. Gerard, 2 How. 127. The doctrine was elaborately argued and examined in the Gerard Will Case, 28 Penn. 54, and it was maintained that it was founded on the common law. [220] There are many institutions permitted by statute in New York to take property by devise or bequest. By Laws 1848, ch. 319, benevolent, charitable, literary, scientific, missionary, or Sabbath-school societies can take a devise or bequest, the clear annual income of which shall not exceed $10,000; but, to be valid, the will must be executed two months before testator's death. By Laws 1841, ch. 261, colleges and literary incorporated institutions are allowed to take for certain purposes. And, by Laws 1864, the State can take a devise for benefit and support of common schools. For these reasons, it is held the law of charitable uses is not so much required in New York; and, by special enactment, the legislature will incorporate societies to take a devise for pious, benevolent, or charitable purposes. [221] 4 Ves. 227. [222] In case the trust exceeds this term, it is void _in toto_, and not merely _pro tanto_; Griffiths v. Vere, 1 Ves. 136, 10 Penn. St. 326. [223] A direction to accumulate all the testator's estate for fifteen years by investment and reinvestment in bonds is valid in Illinois. Rhoads v. Rhoads, 43 Ill. 239. But in New York an accumulation for three years, and also ten years, was held invalid: 4 Sandf. 442; 7 Barb. 590. [224] In New York it is _two_ lives; in California, _any_ lives in being: Civil Code, 715. [225] Schettler v. Smith, 41 N. Y. 328. [226] The maximum period during which alienation may be suspended may, in one instance, under the New York statutes, and those of a great many other States, be suspended for two lives in being, and twenty-one years and a fraction afterwards, in certain cases of minority. For example, an estate to A for life, remainder to B for life, remainder to his children in fee, but in case such children shall die under the age of twenty-one years, then to D in fee. Here, it will be observed, the ownership may be legally suspended for the lives of A and B, and the actual infancy of B's children; but in no event can such suspension exceed that length of time before the remainder becomes vested. If one of the children reach twenty-one, D's remainder is cut off. In the example just given, suppose the children of B die before attaining twenty-one, and that B, at his death, leaves his wife _enceinte_, there would then be a suspension of alienation for a few months more than twenty-one years. The extent to which variation from the ordinary term of gestation may take place in women, whether the birth be premature or protracted, is one of the difficult problems involved in medical jurisprudence. On this subject the highest medical authorities are at issue; some adhering closely to the regular period of forty weeks as the extreme term; while others extend their indulgence even to the utmost verge of eleven calendar months. See Long v. Blackall, 7 Term R. 104; Cadell v. Palmer, 1 Cl. & Finn. 372. [227] Moore v. Moore, 47 Barb. 257. [228] Burrill v. Boardman, 43 N. Y. 254. [229] Rose v. Rose, 4 Abb. Ct. App., Dec., 108. [230] The argument of Prof. Dwight, one of the counsel, in two volumes, presents a marvelous and most scholarly amount of research upon the law of charitable uses, from the earliest times. [231] See page 31. [232] Swinburne, Part 7, Sec. 14, says: "Concerning the making of a latter testament, so large and ample is the liberty of making testaments that a man may, as oft as he will, make a new testament, even until his last breath; neither is there any cautel under the sun to prevent this liberty; but no man can die with two testaments, and therefore the last and newest is of force; so that, if there were a thousand testaments, the last of all is the best of all, and makes void the former." [233] 4 Co. Rep. 60. [234] Doe v. Barford, 4 Man. & S. 16. [235] Johnston v. Johnston, 1 Phillim. 447. [236] Wellington v. Wellington, 4 Burr. 2165. [237] 4 Johns. Ch. 506. Of course, this rule was only good where the issue of the marriage were otherwise unprovided for, or had no means of maintenance. [238] The law respecting implied revocations was a fruitful source of difficult and expensive litigation, and often defeated the intention of testators, instead of carrying it into effect. Lord Mansfield has said that some of the decisions on this head had brought "a scandal on the law"; and, on another occasion, he remarked "that all revocations not agreeable to the intention of the testator are founded on artificial and absurd reasoning." 3 Burr. 491. [239] Ash v. Ash, 9 Ohio, 383; Stat. Ohio, (1831) p. 243; Stat. Ind. 1821; Stat. Ill. 1829; G. Laws, Conn. p. 370, last edition. [240] 4 Kent, 525; Cal. Civ. Code, 1306. [241] 4 Kent, 526. [242] Sec. 1307. [243] Gage v. Gage, 9 Foster, 533. [244] 2 Rev. Stat. 64. [245] Redfield, I, 298. [246] Rev. Stat. 1849, Ch. 122. [247] Civil Code, 1290. So in Rhode Island, Rev. Stat. Ch. 154. [248] Tomlinson v. Tomlinson, 1 Ashm. 224. [249] Tyler v. Tyler, 19 Ill. 151. [250] 2 N. Y. Rev. Stat. 64; Civil Code, 1299. [251] Cotter v. Layer, 2 P. Wms. 623. [252] In re Fisher, 4 Wis. 254; Simmons v. Simmons, 26 Barb. 68; Smith v. McChesney, 15 N. J. Ch. 359. [253] Campbell v. Logan, 2 Bradf. 90. [254] Cutto v. Gilbert, 9 Moore, P. C. C. 131. [255] Mod. 203. [256] 1 Cowp. 87. [257] Nelson v. McGiffert, 3 Barb. Ch. 162. In some States this is settled by statute. Thus, in California, an antecedent will is not revived by the revocation of a subsequent will unless an intention appear: Civil Code, 1297. The same in New York: 2 Rev. Stat. 66. [258] Wms. Exrs. 136 and cases cited. The general effect of a subsequent will in revoking one of an earlier date, by reason of its inconsistent provisions, is very extensively discussed in the late and important case of Colvin v. Warford, 20 Md. 357. [259] Brown v. Brown, 8 El. & Bl. 876. [260] Howard v. Davis, 2 Binney, 406; Jackson v. Betts, 6 Cow. 483; Steele v. Price, 5 B. Mon. 58; 8 Met. 486. [261] 7 B. Mon. 408. [262] 8 Watts & Serg. 275. [263] Wharram v. Wharram, 10 Jur. N. S. 499. A will and codicil were torn to pieces by a testator's eldest son, after the death of his father; the pieces were saved, by which, and by oral evidence, the court arrived at the substance of those instruments, and in effect pronounced for them. Foster v. Foster, 1 Addams, 462. [264] Patch v. Graves, 3 Denio, 348; 28 Vt. 274. [265] 4 Ves. 610. [266] 3 Sw. & Tr. 478. [267] 14 Mass. 208; Hine v. Hine, 31 Penn. 246. [268] Lewis v. Lewis, 2 W. & S. 455. [269] Price v. Maxwell, 28 Penn. 23. [270] Howard v. Halliday, 7 Johns. R. 394. If two wills, in duplicate, were in possession of the testator, and he destroyed one, did this, in effect, work a revocation? This was in some doubt. The California Code has set at rest this question for that State, in Sec. 1295, where it is provided that a destruction of one of the copies shall amount to a revocation. See Onions v. Tyrer, 2 Vern. 742. [271] Hobbs v. Knight, 1 Curteis, 289. And the cutting out of the principal part, as the signature of the testator, or of the witnesses, will be a revocation of the whole will: 1 Jarman, 161. [272] Where the word "destroying" is used in the statute, as one mode of revocation, it is generally held to include all modes of defacing not specifically enumerated in the statute, and does not require an absolute and entire destruction. Johnson v. Brailsford, 2 Nott & McCord, 272. [273] 2 Rev. Stat. 66. It is the same in California: Civil Code, 1292. [274] Burtenshaw v. Gilbert, 1 Cowp. 49. [275] Dan v. Brown, 4 Cow. 490. [276] Etheringham. v. Etheringham, Aleyn, 2. [277] 3 B. & Ald. 489. [278] Bibb v. Thomas, 2 W. Bl. 1043. [279] Pryor v. Coggin, 17 Ga. 444. [280] White v. Carter, 1 Jones (N. C.) Law, 197. [281] Smiley v. Gambill, 2 Head, 164. [282] Blanchard v. Blanchard, 32 Vt. 62. [283] 7 Jur. N. S. 52. [284] 1 Jarman, 133. [285] Bap. Church v. Roberts, 2 Penn. 110. [286] 1 Johns. Ch. 530. [287] Bethell v. Moore, 2 Dev. & Batt. 311. [288] 1 Jarman, 125. [289] McPherson v. Clark, 3 Bradf. 92. [290] 1 B. Mon. 57. [291] 2 Doug. (Mich.) 515. [292] 8 Jur. N. S. 897. [293] Legatees are entitled to be paid in the money of the country in which the testator is domiciled and the will is made. 2 Atk. 465; 2 Bro. C. C. 39. [294] Harrison v. Nixon, 9 Peters, 483. [295] To determine a person's domicile is sometimes a matter of some difficulty. It is determined on two principles: the _fact_ of one's residence, and the _intent_ of remaining there as at one's home; or it depends upon _habitation_ and the _animo manendi_. Residence and domicile are not convertible terms, because they are not the same things. The Roman definition has been admired for its expressiveness and force. It is there defined: "It is not doubted that individuals have a home in that place where each one has established his hearth, and the sum of his possessions and fortunes; whence he will not depart if nothing calls him away; whence if he has departed he seems to be a wanderer, and if he returns he ceases to wander." (Code, lib. 10, tit. 39.) It must be assumed as a fact that every person has a domicile, or home, and the domicile of origin remains until another is obtained, not by merely moving or changing, but by leaving it with no intention of returning, without _animo revertendi_. But an intention to change is not sufficient to alter a domicile until it is actually changed. Therefore, death _en route_ does not alter domicile. (State v. Hallet, 8 Ala. 159.) One who goes abroad, _animo revertendi_, does not change his domicile, because only the fact of residence is changed, and not the intent. But if he remains very long abroad, and in one place, the intent may be inferred from the fact. The Supreme Court of the United States have intimated that an exercise of the right of suffrage would be the highest evidence, and almost conclusive against the party. (Shelton v. Tiffin, 6 How. 185.) [296] The doctrine was well settled in a very early case in Pennsylvania, decided by Judge Tilgham, in 1808: the case of Desasbats v. Berquier, 1 Binn. 336; and this case has ever since been quoted and approved as a good statement of the law on this point. There, a will was executed in St. Domingo by a person domiciled there, and sought to be enforced in Pennsylvania, where the effects of the deceased were. It appeared not to have been executed according to the laws of St. Domingo, though it was conceded that it would have been a good will if executed by a citizen of Pennsylvania. The alleged will was held to be invalid. [297] 23 N. Y. 394. [298] Confl. Laws, Sec. 481; Adams v. Wilbur, 2 Sumner, 266. [299] Wills, I, 404. [300] Nat v. Coons, 10 Mo. 543. [301] 14 How. 400. [302] Coppin v. Coppin, 2 P. Wms. 291. This was accepted as an indisputable proposition, in Lynes v. Townsend, 33 N. Y. 558. [303] Wood v. Wood, 5 Paige, 596; 9 Wheat. 565. [304] Vol. I, 1. [305] Conf. Laws, Sec. 479. [306] Evid. 671. [307] Gold v. Judson, 21 Conn. 616. [308] 8 Cranch, 66; G. Stat. (Mass.) C. 92; 7 Met. 141; 6 N. H. 47. [309] Cushing v. Aylwin, 12 Met. 169. [310] Washburne, Real Prop. I, 166. [311] Re Maraver, 1 Hagg. 498. [312] Hoxie v. Hoxie, 7 Paige, 187. [313] Hone v. Van Schaick, 3 Barb. Ch. 488. [314] 2 W. Bl. 976. [315] 1 Salk. 234. [316] 2 Mau. and Sel. 454. [317] Roe v. Pattison, 16 East. 221; Wheeler's Heirs v. Dunlap, 13 B. Mon. 293. [318] Youngs v. Youngs, 45 N. Y. 254. [319] 5 Co. 68 b. [320] 1 Johns. Ch. 231. [321] 2 Vern. 624. [322] Brownfield v. Brownfield, 20 Penn. 55; Johnson v. Johnson, 32 Ala. 637. Where there is no ambiguity on the face of a will, evidence is inadmissible to explain it: Hill v. Alford, 46 Ga. 247. [323] Jackson v. Sill, 11 Johns. 201. [324] Walston v. White, 5 Md. 297. [325] Worman v. Teagarden, 2 Ohio N. S. 380. [326] Asay v. Hoover, 5 Penn. 21. [327] 2 Sneed, 618. [328] Allen v. Allen, 18 How. (U. S.) 385. [329] Betts v. Jackson, 6 Wend. 187. [330] Lawyer v. Smith, 8 Mich. 411. [331] Civil Code, 1340; Estate of Garraud, 35 Cal. 336. [332] 4 Vesey, 329; 1 Salk. 238. [333] Hodgson v. Ambrose, 1 Doug. 341. [334] Theall v. Theall, 6 La. 220. [335] 18 Jur. 915. [336] Dowson v. Gaskoin, 2 Kee. 14. The word "money" used in making a devise in a will, will be construed to include both personal and real property, if it appears from the context, and on the face of the instrument, that such was the intention of the testator. Estate of Miller, 48 Cal. 165. [337] Co. Litt. 207. [338] 1 Johns. Ch. 231. [339] James v. Smith, 14 Sim. 214. [340] 5 Vesey, 159. [341] 2 Eden, 194. [342] Thus, in a case in California, Norris v. Henley, 27 Cal. 439, a testator devised his real estate upon a particular street, one-third to each of three persons by name, "to have and to hold their lifetime, and then to go to their heirs and assigns, _but never to sell_." It was held to create a fee, and these words, "never to sell," had no effect. [343] Cro. Eliz. 9. [344] Sims v. Doughty, 5 Ves. 243: Parks v. Parks, 9 Paige, 107. [345] Frazer v. Boone, 1 W. R. Hill, 367. [346] 3 P. Wms. 259; Cal. Civ. Code, 1317. [347] Parks v. Parks, 9 Paige, 107; Williams v. Williams, 4 Seld. 525; Hawley v. James, 16 Wend. 61. [348] Chrystie v. Phyfe, 19 N. Y. 344. [349] 8 Jur. N. S. 825. [350] Matter of Hallet, 8 Paige, 375. [351] 33 Maine, 464. [352] Hughes v. Hughes, 12 B. Mon. 121. [353] Metham v. Duke of Devon, 1 P. Wms. 529. [354] Cartwright v. Vawdry, 5 Vesey, 530; Gardner v. Heyer, 2 Paige, 12. [355] 2 Meriv. 419. [356] 1 Vent. 231; Moore v. Moore, 12 B. Mon. 655. [357] Sibley v. Perry, 7 Ves. 522; Pope v. Pope, 14 Beav. 591. [358] Hopkins v. Jones, 2 Barr, 69; Moore v. Moore, 12 B. Mon. 653. [359] N. Y. Rev. Stat. Vol. III, p. 12. [360] 9 Vesey, 319. [361] 8 Sim. 134. [362] Legacies, Ch. II, Sec. 10. [363] Jones v. Sefton, 4 Vesey, 166. [364] 3 P. Wms. 112. [365] Timewell v. Perkins, 2 Atk. 103. The word "estate" in a will carries everything, unless restrained by particular expressions: Turbett v. Turbett, 3 Yeates, 187. [366] Delamater's Estate, 1 Wharton, 362. [367] 29 Beav. 207. [368] 5 Allen, 556. [369] Holder v. Ramsbottom, 9 Jur. N. S. 350; Nichols v. Osborn, 2 P. Wms. 419. [370] Pond v. Bergh, 10 Paige, 140; 12 Mass. 537; Estate of Wood, 36 Cal. 75. [371] Wootton v. Redd, 12 Gratt. 196. [372] 3 Burr, 1634. [373] 4 Vesey, 406. Transcriber's Notes: Passages in italics are indicated by _italics_. Passages in bold are indicated by =bold=. Superscripted characters are indicated by {superscript}. 
18	----	This is the Project Gutenberg 1.5 release of The Federalist Papers FEDERALIST. No. 1 General Introduction For the Independent Journal. HAMILTON To the People of the State of New York: AFTER an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution. And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth. I propose, in a series of papers, to discuss the following interesting particulars: THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY. In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.1 This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address. PUBLIUS. 1 The same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new Constitution. FEDERALIST No. 2 Concerning Dangers from Foreign Force and Influence For the Independent Journal. JAY To the People of the State of New York: WHEN the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident. Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. It has often given me pleasure to observe that independent America was not composed of detached and distant territories, but that one connected, fertile, widespreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities. With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and wellbalanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer. This intelligent people perceived and regretted these defects. Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being pursuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at Philadelphia, to take that important subject under consideration. This convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils. Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet let it be remembered that it is neither recommended to BLIND approbation, nor to BLIND reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of America to form the memorable Congress of 1774. That body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. Not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to pursuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so. They considered that the Congress was composed of many wise and experienced men. That, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. That, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy. That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: "FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS." PUBLIUS. FEDERALIST No. 3 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. JAY To the People of the State of New York: IT IS not a new observation that the people of any country (if, like the Americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. That consideration naturally tends to create great respect for the high opinion which the people of America have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes. The more attentively I consider and investigate the reasons which appear to have given birth to this opinion, the more I become convinced that they are cogent and conclusive. Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first. The SAFETY of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively. At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising from domestic causes. As the former of these comes first in order, it is proper it should be the first discussed. Let us therefore proceed to examine whether the people are not right in their opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against HOSTILITIES from abroad. The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether REAL or PRETENDED, which PROVOKE or INVITE them. If this remark be just, it becomes useful to inquire whether so many JUST causes of war are likely to be given by UNITED AMERICA as by DISUNITED America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations. The JUST causes of war, for the most part, arise either from violation of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us. She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies. Because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more SAFE with respect to us. Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,--whereas, adjudications on the same points and questions, in thirteen States, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. Because the prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice; but those temptations, not reaching the other States, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this reasoning. Because, even if the governing party in a State should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. But the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford JUST causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the SAFETY of the people. As to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. Because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two States than of the Union. Not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants. The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. But not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. Besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or confederacy of little consideration or power. In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded that they should send their Doge, or chief magistrate, accompanied by four of their senators, to FRANCE, to ask his pardon and receive his terms. They were obliged to submit to it for the sake of peace. Would he on any occasion either have demanded or have received the like humiliation from Spain, or Britain, or any other POWERFUL nation? PUBLIUS. FEDERALIST No. 4 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. JAY To the People of the State of New York: MY LAST paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by JUST causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the State governments or the proposed little confederacies. But the safety of the people of America against dangers from FOREIGN force depends not only on their forbearing to give JUST causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to INVITE hostility or insult; for it need not be observed that there are PRETENDED as well as just causes of war. It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances. With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. With them and with most other European nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns. Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure. The people of America are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in SUCH A SITUATION as, instead of INVITING war, will tend to repress and discourage it. That situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country. As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would? We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government, had not so regulated the navigation of Britain as to make it a nursery for seamen--if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. Let England have its navigation and fleet--let Scotland have its navigation and fleet--let Wales have its navigation and fleet--let Ireland have its navigation and fleet--let those four of the constituent parts of the British empire be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments--what armies could they raise and pay--what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what proportion shall aids of men and money be afforded? Who shall command the allied armies, and from which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. PUBLIUS. FEDERALIST No. 5 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. JAY To the People of the State of New York: QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the UNION then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: "An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be ENABLED TO RESIST ALL ITS ENEMIES." "We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only EFFECTUAL way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, USE THEIR UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION." It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. This subject is copious and cannot easily be exhausted. The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being "joined in affection" and free from all apprehension of different "interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other BORDERING nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the NORTHERN HIVE would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH OTHER. From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies. When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be DISTINCT NATIONS. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. Hence it might and probably would happen that the foreign nation with whom the SOUTHERN confederacy might be at war would be the one with whom the NORTHERN confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. Let candid men judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. PUBLIUS. FEDERALIST No. 6 Concerning Dangers from Dissensions Between the States For the Independent Journal. HAMILTON To the People of the State of New York: THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind--those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions. These have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation. A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. The celebrated Pericles, in compliance with the resentment of a prostitute,1 at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the SAMNIANS. The same man, stimulated by private pique against the MEGARENSIANS,2 another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary Phidias,3 or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity,4 or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the PELOPONNESIAN war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth. The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity to aspire to the triple crown,5 entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the dupe. The influence which the bigotry of one female,6 the petulance of another,7 and the cabals of a third,8 had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known. To multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. Perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts would have been plunged into a civil war. But notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? If this be their true interest, have they in fact pursued it? Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? Have republics in practice been less addicted to war than monarchies? Are not the former administered by MEN as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. Sparta was little better than a wellregulated camp; and Rome was never sated of carnage and conquest. Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. Hannibal had carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of the commonwealth. Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other Italian states, Pope Julius II. found means to accomplish that formidable league,9 which gave a deadly blow to the power and pride of this haughty republic. The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were among the most persevering and most implacable of the opponents of Louis XIV. In the government of Britain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people. There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the State. In that memorable struggle for superiority between the rival houses of AUSTRIA and BOURBON, which so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice, of a favorite leader,10 protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. The wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,--the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation. From this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? Have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? Let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the State of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts, declare--! So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect: "NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors."11 This passage, at the same time, points out the EVIL and suggests the REMEDY. PUBLIUS. 1 Aspasia, vide "Plutarch's Life of Pericles." 2 Ibid. 3 Ibid. 4 ] Ibid. Phidias was supposed to have stolen some public gold, with the connivance of Pericles, for the embellishment of the statue of Minerva. 5 P Worn by the popes. 6 Madame de Maintenon. 7 Duchess of Marlborough. 8 Madame de Pompadour. 9 The League of Cambray, comprehending the Emperor, the King of France, the King of Aragon, and most of the Italian princes and states. 10 The Duke of Marlborough. 11 Vide "Principes des Negociations" par l'Abbe de Mably. FEDERALIST. No. 7 The Same Subject Continued (Concerning Dangers from Dissensions Between the States) For the Independent Journal. HAMILTON To the People of the State of New York: IT IS sometimes asked, with an air of seeming triumph, what inducements could the States have, if disunited, to make war upon each other? It would be a full answer to this question to say--precisely the same inducements which have, at different times, deluged in blood all the nations in the world. But, unfortunately for us, the question admits of a more particular answer. There are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. Territorial disputes have at all times been found one of the most fertile sources of hostility among nations. Perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries of the United States. There still are discordant and undecided claims between several of them, and the dissolution of the Union would lay a foundation for similar claims between them all. It is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the Revolution, and which usually went under the name of crown lands. The States within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the Union; especially as to all that part of the Western territory which, either by actual possession, or through the submission of the Indian proprietors, was subjected to the jurisdiction of the king of Great Britain, till it was relinquished in the treaty of peace. This, it has been said, was at all events an acquisition to the Confederacy by compact with a foreign power. It has been the prudent policy of Congress to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole. This has been so far accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable termination of the dispute. A dismemberment of the Confederacy, however, would revive this dispute, and would create others on the same subject. At present, a large part of the vacant Western territory is, by cession at least, if not by any anterior right, the common property of the Union. If that were at an end, the States which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a proportion, by right of representation. Their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. Different principles would be set up by different States for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their disadvantage. Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State and the district of Vermont, can vouch the opposition we experienced, as well from States not interested as from those which were interested in the claim; and can attest the danger to which the peace of the Confederacy might have been exposed, had this State attempted to assert its rights by force. Two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring States, who had obtained grants of lands under the actual government of that district. Even the States which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, till alarmed by the appearance of a connection between Canada and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye the perspective of our growing greatness. In a review of these transactions we may trace some of the causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited. The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative. The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. How would it be possible to agree upon a rule of apportionment satisfactory to all? There is scarcely any that can be proposed which is entirely free from real objections. These, as usual, would be exaggerated by the adverse interest of the parties. There are even dissimilar views among the States as to the general principle of discharging the public debt. Some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the State in the total amount of the national debt, would be strenuous for some equitable and effective provision. The procrastinations of the former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. The citizens of the States interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention. Suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. Still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the burden. The others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. Their refusal would be too plausible a pretext to the complaining States to withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with their engagements would be a ground of bitter discussion and altercation. If even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the States would result from a diversity of other causes--the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. Delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money. Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of PARCHMENT, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera1 must be the motto of every nation that either hates or fears us.2 PUBLIUS. 1 Divide and command. 2 In order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week--on Tuesday in the New York Packet and on Thursday in the Daily Advertiser. FEDERALIST No. 8 The Consequences of Hostilities Between the States From the New York Packet. Tuesday, November 20, 1787. HAMILTON To the People of the State of New York: ASSUMING it therefore as an established truth that the several States, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. War between the States, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. The disciplined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. The art of fortification has contributed to the same ends. The nations of Europe are encircled with chains of fortified places, which mutually obstruct invasion. Campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. Formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. The history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. In this country the scene would be altogether reversed. The jealousy of military establishments would postpone them as long as possible. The want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. The populous States would, with little difficulty, overrun their less populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, therefore, would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits. This picture is not too highly wrought; though, I confess, it would not long remain a just one. Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it.1 Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority. The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. These are not vague inferences drawn from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece? Different answers, equally satisfactory, may be given to this question. The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility. There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have a good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an over-match for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. In a country in the predicament last described, the contrary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of Europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. 'T is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. If we are wise enough to preserve the Union we may for ages enjoy an advantage similar to that of an insulated situation. Europe is at a great distance from us. Her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe --our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable. PUBLIUS. 1 This objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been taken; and a much better one than is to be found in any constitution that has been heretofore framed in America, most of which contain no guard at all on this subject. FEDERALIST No. 9 The Union as a Safeguard Against Domestic Faction and Insurrection For the Independent Journal. HAMILTON To the People of the State of New York: A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. They have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors. But it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in its application to a single State, which shall be attended to in another place. The utility of a Confederacy, as well to suppress faction and to guard the internal tranquillity of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America. Referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested. So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "It is very probable," (says he1) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC. "This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body. "A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences. "If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation. "Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty. "As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection. A distinction, more subtle than accurate, has been raised between a CONFEDERACY and a CONSOLIDATION of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. The definition of a CONFEDERATE REPUBLIC seems simply to be "an assemblage of societies," or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government. In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest were entitled to THREE votes in the COMMON COUNCIL, those of the middle class to TWO, and the smallest to ONE. The COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says: "Were I to give a model of an excellent Confederate Republic, it would be that of Lycia." Thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. PUBLIUS. 1 "Spirit of Lawa," vol. i., book ix., chap. i. FEDERALIST No. 10 The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection) From the New York Packet. Friday, November 23, 1787. MADISON To the People of the State of New York: AMONG the numerous advantages promised by a wellconstructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures. The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage. The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State. In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists. PUBLIUS. FEDERALIST No. 11 The Utility of the Union in Respect to Commercial Relations and a Navy For the Independent Journal. HAMILTON To the People of the State of New York: THE importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other. There are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of America, has already excited uneasy sensations in several of the maritime powers of Europe. They seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. Those of them which have colonies in America look forward to what this country is capable of becoming, with painful solicitude. They foresee the dangers that may threaten their American dominions from the neighborhood of States, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. Impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. Did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign countries to bid against each other, for the privileges of our markets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? When these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. It has been said that prohibitions on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction? Would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of British commodities in our markets, and by transferring to other hands the management of this interesting branch of the British commerce? A mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to Britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the American trade, and with the importunities of the West India islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. Such a point gained from the British government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade. A further resource for influencing the conduct of European nations toward us, in this respect, would arise from the establishment of a federal navy. There can be no doubt that the continuance of the Union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be more peculiarly the case in relation to operations in the West Indies. A few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. Our position is, in this respect, a most commanding one. And if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the West Indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. A price would be set not only upon our friendship, but upon our neutrality. By a steady adherence to the Union we may hope, erelong, to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate. But in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. In a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral. Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. But in a state of disunion, these combinations might exist and might operate with success. It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequaled spirit of enterprise, which signalizes the genius of the American merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. There are rights of great moment to the trade of America which are rights of the Union--I allude to the fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the Confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. The disposition of Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. What more natural than that they should be disposed to exclude from the lists such dangerous competitors? This branch of trade ought not to be considered as a partial benefit. All the navigating States may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several States, will become, a universal resource. To the establishment of a navy, it must be indispensable. To this great national object, a NAVY, union will contribute in various ways. Every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. It happens, indeed, that different portions of confederated America possess each some peculiar advantage for this essential establishment. The more southern States furnish in greater abundance certain kinds of naval stores--tar, pitch, and turpentine. Their wood for the construction of ships is also of a more solid and lasting texture. The difference in the duration of the ships of which the navy might be composed, if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength or of national economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctations of markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions. It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of commercial, as well as political, interests, can only result from a unity of government. There are other points of view in which this subject might be placed, of a striking and animating kind. But they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. The world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America--that even dogs cease to bark after having breathed awhile in our atmosphere.1 Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world! PUBLIUS. "Recherches philosophiques sur les Americains." FEDERALIST No. 12 The Utility of the Union In Respect to Revenue From the New York Packet. Tuesday, November 27, 1787. HAMILTON To the People of the State of New York: THE effects of Union upon the commercial prosperity of the States have been sufficiently delineated. Its tendency to promote the interests of revenue will be the subject of our present inquiry. The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. By multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,--all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. The often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. It has been found in various countries that, in proportion as commerce has flourished, land has risen in value. And how could it have happened otherwise? Could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state--could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? It is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. The hereditary dominions of the Emperor of Germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. He has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue. There are other points of view, in which its influence will appear more immediate and decisive. It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description. In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the inperceptible agency of taxes on consumption. If these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious doubt, that this state of things must rest on the basis of a general Union. As far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. As far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. The relative situation of these States; the number of rivers with which they are intersected, and of bays that wash there shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse; --all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our governments, for a long time to come, would not permit those rigorous precautions by which the European nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice. In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Mr. Neckar computes the number of these patrols at upwards of twenty thousand. This shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the States should be placed in a situation, with respect to each other, resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. If, on the contrary, there be but one government pervading all the States, there will be, as to the principal part of our commerce, but ONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. They would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. An ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. A few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government having the same interest to provide against violations everywhere, the co-operation of its measures in each State would have a powerful tendency to render them effectual. Here also we should preserve by Union, an advantage which nature holds out to us, and which would be relinquished by separation. The United States lie at a great distance from Europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. The passage from them to us, in a few hours, or in a single night, as between the coasts of France and Britain, and of other neighboring nations, would be impracticable. This is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one State, through the medium of another, would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. It is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the States separately, or to any partial confederacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent., and in Britain they exceed this proportion.1 There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits. What will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. In populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the State; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. As the necessities of the State, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. And as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. But public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. PUBLIUS. 1 If my memory be right they amount to twenty per cent. FEDERALIST No. 13 Advantage of the Union in Respect to Economy in Government For the Independent Journal. HAMILTON To the People of the State of New York: As CONNECTED with the subject of revenue, we may with propriety consider that of economy. The money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. If the States are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. The entire separation of the States into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four Northern, another of the four Middle, and a third of the five Southern States. There is little probability that there would be a greater number. According to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. When the dimensions of a State attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. This idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of Britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. The supposition that each confederacy into which the States would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. The more Southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State. Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. PUBLIUS. FEDERALIST No. 14 Objections to the Proposed Constitution From Extent of Territory Answered From the New York Packet. Friday, November 30, 1787. MADISON To the People of the State of New York: WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region. To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory. Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress. That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union. Favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory. In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task. Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete. A fourth and still more important consideration is, that as almost every State will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout. I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellowcitizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide. PUBLIUS. FEDERALIST No. 15 The Insufficiency of the Present Confederation to Preserve the Union For the Independent Journal. HAMILTON To the People of the State of New York. IN THE course of the preceding papers, I have endeavored, my fellow-citizens, to place before you, in a clear and convincing light, the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present Confederation to the preservation of the Union." It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union. We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government.1 Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed. Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it. Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric. The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option. It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens, --the only proper objects of government. Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity. In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature. If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. The same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits. In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed; the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government. Things did not come to this desperate extremity at once. The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked with us in the same political voyage? Why should we consent to bear more than our proper share of the common burden? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. PUBLIUS. 1 "I mean for the Union." FEDERALIST No. 16 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) From the New York Packet. Tuesday, December 4, 1787. HAMILTON To the People of the State of New York: THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty. This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union. This may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. Whoever considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. The plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. PUBLIUS. FEDERALIST No. 17 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. HAMILTON To the People of the State of New York: AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government. But let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several States, would control the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed. It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter. This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation. The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,--I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. The reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of INFERIOR vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. Each principal vassal was a kind of sovereign, within his particular demesnes. The consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy. When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. But in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. It will be well if they are not able to counteract its legitimate and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in the CONCENTRATION of large portions of the strength of the community into particular DEPOSITS, in one case at the disposal of individuals, in the other case at the disposal of political bodies. A concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing papers. PUBLIUS. FEDERALIST No. 18 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. HAMILTON AND MADISON To the People of the State of New York: AMONG the confederacies of antiquity, the most considerable was that of the Grecian republics, associated under the Amphictyonic council. From the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present Confederation of the American States. The members retained the character of independent and sovereign states, and had equal votes in the federal council. This council had a general authority to propose and resolve whatever it judged necessary for the common welfare of Greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. The Amphictyons were the guardians of religion, and of the immense riches belonging to the temple of Delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. As a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In several material instances, they exceed the powers enumerated in the articles of confederation. The Amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. Very different, nevertheless, was the experiment from the theory. The powers, like those of the present Congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction of the confederacy. The more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece seventy-three years. The Lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of Leuctra, the Thebans had their turn of domination. It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage. After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. The Athenians, finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude. Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the Persian arms, to establish such a reformation. Instead of this obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war; which itself ended in the ruin and slavery of the Athenians who had begun it. As a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, refused to submit to the decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphictyons, and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of Macedon, who had secretly fostered the contest. Philip gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the Amphictyonic council; and by his arts and his arms, made himself master of the confederacy. Such were the consequences of the fallacious principle on which this interesting establishment was founded. Had Greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of Macedon; and might have proved a barrier to the vast projects of Rome. The Achaean league, as it is called, was another society of Grecian republics, which supplies us with valuable instruction. The Union here was far more intimate, and its organization much wiser, than in the preceding instance. It will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. The cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. According to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred. It appears that the cities had all the same laws and customs, the same weights and measures, and the same money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is said only that the cities were in a manner compelled to receive the same laws and usages. When Lacedaemon was brought into the league by Philopoemen, it was attended with an abolition of the institutions and laws of Lycurgus, and an adoption of those of the Achaeans. The Amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. This circumstance alone proves a very material difference in the genius of the two systems. It is much to be regretted that such imperfect monuments remain of this curious political fabric. Could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising SINGLY all the prerogatives of sovereignty. The Abbe Mably, in his observations on Greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY. We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. The contrary is sufficiently displayed in the vicissitudes and fate of the republic. Whilst the Amphictyonic confederacy remained, that of the Achaeans, which comprehended the less important cities only, made little figure on the theatre of Greece. When the former became a victim to Macedon, the latter was spared by the policy of Philip and Alexander. Under the successors of these princes, however, a different policy prevailed. The arts of division were practiced among the Achaeans. Each city was seduced into a separate interest; the union was dissolved. Some of the cities fell under the tyranny of Macedonian garrisons; others under that of usurpers springing out of their own confusions. Shame and oppression erelong awaken their love of liberty. A few cities reunited. Their example was followed by others, as opportunities were found of cutting off their tyrants. The league soon embraced almost the whole Peloponnesus. Macedon saw its progress; but was hindered by internal dissensions from stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in Sparta and Athens, of the rising glory of the Achaeans, threw a fatal damp on the enterprise. The dread of the Macedonian power induced the league to court the alliance of the Kings of Egypt and Syria, who, as successors of Alexander, were rivals of the king of Macedon. This policy was defeated by Cleomenes, king of Sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the Achaeans, and who, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of their engagements with the league. The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of supplicating the aid of Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. A Macedonian army quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. All that their most abject compliances could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, though weakened by internal dissensions and by the revolt of Messene, one of its members, being joined by the AEtolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among it members. These the Romans fostered. Callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. The more effectually to nourish discord and disorder the Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty1 throughout Greece. With the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. By these arts this union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is groaning at this hour. I have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. PUBLIUS. 1 This was but another name more specious for the independence of the members on the federal head. FEDERALIST No. 19 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. HAMILTON AND MADISON To the People of the State of New York: THE examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. There are existing institutions, founded on a similar principle, which merit particular consideration. The first which presents itself is the Germanic body. In the early ages of Christianity, Germany was occupied by seven distinct nations, who had no common chief. The Franks, one of the number, having conquered the Gauls, established the kingdom which has taken its name from them. In the ninth century Charlemagne, its warlike monarch, carried his victorious arms in every direction; and Germany became a part of his vast dominions. On the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. Charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. But the principal vassals, whose fiefs had become hereditary, and who composed the national diets which Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. The force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. The most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. The imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the Suabian, and the accession of the first emperor of the Austrian lines. In the eleventh century the emperors enjoyed full sovereignty: In the fifteenth they had little more than the symbols and decorations of power. Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic empire. Its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. The diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions. The members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. The prerogatives of the emperor are numerous. The most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. In certain cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe. From such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general inbecility, confusion, and misery. In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of Saxony. The late king of Prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. Controversies and wars among the members themselves have been so common, that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and Sweden, with the other half, on the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution. If the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. The small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury. The impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. This experiment has only served to demonstrate more fully the radical vice of the constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy. We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In Donawerth, a free and imperial city of the circle of Suabia, the Abb 300 de St. Croix enjoyed certain immunities which had been reserved to him. In the exercise of these, on some public occasions, outrages were committed on him by the people of the city. The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory,1 he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. It may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? The answer is obvious: The weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and heriditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe; --these causes support a feeble and precarious Union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. Foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness. If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly be taken notice of. Nor could any proof more striking be given of the calamities flowing from such institutions. Equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories. The connection among the Swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions. They have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. They are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accomodating disputes among the cantons. The provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their treaty of 1683, with Victor Amadeus of Savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. The controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. That separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France. PUBLIUS. 1 Pfeffel, "Nouvel Abreg. Chronol. de l'Hist., etc., d'Allemagne," says the pretext was to indemnify himself for the expense of the expedition. FEDERALIST No. 20 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) From the New York Packet. Tuesday, December 11, 1787. HAMILTON AND MADISON To the People of the State of New York: THE United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. The union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. In all important cases, not only the provinces but the cities must be unanimous. The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. They hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure. The States-General have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. The provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of Europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. As stadtholder of the union, he has, however, considerable prerogatives. In his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts. In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns. In his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them. His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men. Such is the nature of the celebrated Belgic confederacy, as delineated on parchment. What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution. The union of Utrecht, says another respectable writer, reposes an authority in the States-General, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory. The same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota. In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. The great wealth and influence of the province of Holland enable her to effect both these purposes. It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confedracy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense. Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious. In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. Notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "Under such a government," says the Abbe Mably, "the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder." It is remarked by Sir William Temple, "that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy. The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness. A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed. This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY. PUBLIUS. FEDERALIST No. 21 Other Defects of the Present Confederation For the Independent Journal. HAMILTON To the People of the State of New York: HAVING in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled." There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world. The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York? The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community. The principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. If the like parallel were to be run between several of the American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. The position may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King's County bears a much greater proportion to that of Montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion! The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. The consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions. There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four." If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populousness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. PUBLIUS. FEDERALIST No. 22 The Same Subject Continued (Other Defects of the Present Confederation) From the New York Packet. Friday, December 14, 1787. HAMILTON To the People of the State of New York: IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the Union. The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency. [1] Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the German empire [2] is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. The power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure. This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to reget the want of this hope, when we consider how little prospect there is, that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among the members. The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America [3]; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people [4]; and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes. But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy. It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled. A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert. It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. PUBLIUS. FNA1-@1 This, as nearly as I can recollect, was the sense of his speech on introducing the last bill. FNA1-@2 Encyclopedia, article "Empire." FNA1-@3 New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of the States, but they do not contain one third of the people. FNA1-@4 Add New York and Connecticut to the foregoing seven, and they will be less than a majority. FEDERALIST No. 23 The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union From the New York Packet. Tuesday, December 18, 1787. HAMILTON To the People of the State of New York: THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived. This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head. The principal purposes to be answered by union are these the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries. The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained. Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES. Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources were by them judged requisite to the "common defense and general welfare." It was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head. The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, I imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments. If the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between the citizens of the same State the proper department of the local governments? These must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. Not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. Who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the WHOLE, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the States, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? Is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the State governments the EFFECTIVE powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a system? And will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? Have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished? Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensible to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and I flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy. PUBLIUS. FEDERALIST No. 24 The Powers Necessary to the Common Defense Further Considered For the Independent Journal. HAMILTON To the People of the State of New York: To THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations. It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest. A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor. If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that TWO ONLY of them [1] contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence. Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings. But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy. If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself. PUBLIUS. FNA1-@1 This statement of the matter is taken from the printed collection of State constitutions. Pennsylvania and North Carolina are the two which contain the interdiction in these words: "As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up." This is, in truth, rather a CAUTION than a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland have, in each of their bils of rights, a clause to this effect: "Standing armies are dangerous to liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE"; which is a formal admission of the authority of the Legislature. New York has no bills of rights, and her constitution says not a word about the matter. No bills of rights appear annexed to the constitutions of the other States, except the foregoing, and their constitutions are equally silent. I am told, however that one or two States have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect. FEDERALIST No. 25 The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered) From the New York Packet. Friday, December 21, 1787. HAMILTON To the People of the State of New York: IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some States, dangerous to all, and baneful to the Confederacy. The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed. New York is of this class. Upon the plan of separate provisions, New York would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. This would neither be equitable as it respected New York nor safe as it respected the other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority. Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to KEEPING THEM UP in a season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated "keeping them up," contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation? Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which occasioned their being raised continues? This would be to admit that they might be kept up IN TIME OF PEACE, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the continuance of the danger? This must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision. The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. Should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project. If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation. Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice. All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the nominal title of vice-admiral. This instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable. PUBLIUS. FEDERALIST No. 26 The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered For the Independent Journal. HAMILTON To the People of the State of New York: IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. The opponents of the proposed Constitution combat, in this respect, the general decision of America; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. As if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. It may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. But a danger of this kind is not to be apprehended. The citizens of America have too much discernment to be argued into anarchy. And I am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community. It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these States have in general sprung. In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law." In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. The attempts of two of the States to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. Even in some of the States, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. Accordingly, in some of these constitutions, and among others, in that of this State of New York, which has been justly celebrated, both in Europe and America, as one of the best of the forms of government established in this country, there is a total silence upon the subject. It is remarkable, that even in the two States which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. It is not said, that standing armies SHALL NOT BE kept up, but that they OUGHT NOT to be kept up, in time of peace. This ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe. Can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the State? Let the fact already mentioned, with respect to Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. The former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation. The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent. Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person. If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. It would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamaties for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense. But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable. PUBLIUS. FEDERALIST No. 27 The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered) From the New York Packet. Tuesday, December 25, 1787. HAMILTON To the People of the State of New York: IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. This, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. Waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. Unless we presume at the same time that the powers of the general government will be worse administered than those of the State government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. It must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. These can only be judged of by general principles and maxims. Various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the State legislatures which are select bodies of men, and which are to appoint the members of the national Senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. Several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members. The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member. I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion. One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence. The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws. [1%] Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence. If we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. But though the adversaries of the proposed Constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, I would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct? PUBLIUS. FNA1-@1 The sophistry which has been employed to show that this will tend to the destruction of the State governments, will, in its will, in its proper place, be fully detected. FEDERALIST No. 28 The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered) For the Independent Journal. HAMILTON To the People of the State of New York: THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support. If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics? Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States? Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the States, or different governments for different parcels of them, or even if there should be an entire separation of the States, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions. Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society. [1] If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty. The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive. We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning. PUBLIUS. FNA1-@1 Its full efficacy will be examined hereafter. FEDERALIST No. 29 Concerning the Militia From the Daily Advertiser. Thursday, January 10, 1788 HAMILTON To the People of the State of New York: THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy. It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and judgment? By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse: "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee. There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes "Gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d'ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths? If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of selfpreservation to the too feeble impulses of duty and sympathy. PUBLIUS. FEDERALIST No. 30 Concerning the General Power of Taxation From the New York Packet. Friday, December 28, 1787. HAMILTON To the People of the State of New York: IT HAS been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. But these are not the only objects to which the jurisdiction of the Union, in respect to revenue, must necessarily be empowered to extend. It must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. The conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another. Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish. In the Ottoman or Turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. The consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. In America, from a like cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to annihilation. Who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require? The present Confederation, feeble as it is intended to repose in the United States, an unlimited power of providing for the pecuniary wants of the Union. But proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. Congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the United States; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the States. These have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. But though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of Union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the Confederacy should remain dependent on the intermediate agency of its members. What the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. It is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies. What remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? What substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury. The more intelligent adversaries of the new Constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call INTERNAL and EXTERNAL taxation. The former they would reserve to the State governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. This distinction, however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the Union? Taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. Its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. I believe it may be regarded as a position warranted by the history of mankind, that, IN THE USUAL PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES. To say that deficiencies may be provided for by requisitions upon the States, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. Those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. Its inevitable tendency, whenever it is brought into activity, must be to enfeeble the Union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. Can it be expected that the deficiencies would be better supplied in this mode than the total wants of the Union have heretofore been supplied in the same mode? It ought to be recollected that if less will be required from the States, they will have proportionably less means to answer the demand. If the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good? Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. We will presume, for argument's sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union. Thus circumstanced, a war breaks out. What would be the probable conduct of the government in such an emergency? Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the State? It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their conditions. They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums. It may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the Union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans. The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. Foreigners, as well as the citizens of America, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice. Reflections of this kind may have trifling weight with men who hope to see realized in America the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. Such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it. PUBLIUS. FEDERALIST No. 31 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Tuesday, January 1, 1788. HAMILTON To the People of the State of New York: IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. Of this nature are the maxims in geometry, that "the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. And there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible. The objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. The INFINITE DIVISIBILITY of matter, or, in other words, the INFINITE divisibility of a FINITE thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled. But in the sciences of morals and politics, men are found far less tractable. To a certain degree, it is right and useful that this should be the case. Caution and investigation are a necessary armor against error and imposition. But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. Though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. The obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. How else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the Union, should have to encounter any adversaries among men of discernment? Though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. They are in substance as follows: A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people. As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies. As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes. Did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. But we find, in fact, that the antagonists of the proposed Constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. It may therefore be satisfactory to analyze the arguments with which they combat it. Those of them which have been most labored with that view, seem in substance to amount to this: "It is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. Revenue is as requisite to the purposes of the local administrations as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. It is, therefore, as necessary that the State governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the Union. But an indefinite power of taxation in the LATTER might, and probably would in time, deprive the FORMER of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments." This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. It is only in the latter light that it can be admitted to have any pretensions to fairness. The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty. In what does our security consist against usurpation from that quarter? Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded. It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. But it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments. Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States. PUBLIUS. FEDERALIST No. 32 The Same Subject Continued (Concerning the General Power of Taxation) From the Daily Advertiser. Thursday, January 3, 1788. HAMILTON To the People of the State of New York: ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution. An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the POLICY of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise "EXCLUSIVE LEGISLATION" over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress "TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES"; and the second clause of the tenth section of the same article declares that, "NO STATE SHALL, without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, except for the purpose of executing its inspection laws." Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the DUTIES ON IMPORTS. This answers to the second case. The third will be found in that clause which declares that Congress shall have power "to establish an UNIFORM RULE of naturalization throughout the United States." This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE. A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power EXCLUSIVE in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them ABSOLUTELY from the imposition of taxes of the former kind, and to leave them at liberty to lay others SUBJECT TO THE CONTROL of the national legislature. The restraining or prohibitory clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, WITH THE CONSENT of the national legislature, might tax imports and exports; and that they might tax every other article, UNLESS CONTROLLED by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind. As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty. The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary. PUBLIUS. FEDERALIST No. 33 The Same Subject Continued (Concerning the General Power of Taxation) From the Daily Advertiser. January 3, 1788. HAMILTON To the People of the State of New York: THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding." These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws? This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union. PUBLIUS. FEDERALIST No. 34 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Friday, January 4, 1788. HAMILTON To the People of the State of New York: I FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. That the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the State governments to provide. To argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. However proper such reasonings might be to show that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to ANNUL or REPEAL the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness. In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within A VERY NARROW COMPASS; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort. To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a State provision. We shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic. Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? Let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the conclusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense. In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. But let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds. In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in PROPORTION to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the MEANS and the END; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose. The preceding train of observation will justify the position which has been elsewhere laid down, that "A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union." Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration. PUBLIUS. FEDERALIST No. 35 The Same Subject Continued (Concerning the General Power of Taxation) For the Independent Journal. HAMILTON To the People of the State of New York: BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State. Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale. The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts. So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections. One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries. The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community. With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society? If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. PUBLIUS. FEDERALIST No. 36 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Tuesday January 8, 1788. HAMILTON To the People of the State of New York: WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive. The subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representatives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may distinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States. The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land taxes are co monly laid in one of two modes, either by ACTUAL valuations, permanent or periodical, or by OCCASIONAL assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. All that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature? The attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan. But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government. Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that "all duties, imposts, and excises shall be UNIFORM throughout the United States." It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part. As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. As neither can CONTROL the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an IMMEDIATE common interest, we may safely count upon its operation. When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource. Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. As to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan. As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth. As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the Union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression! As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States [1] which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security. I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries upon which we shall next enter. PUBLIUS. FNA1-@1 The New England States. FEDERALIST No. 37 Concerning the Difficulties of the Convention in Devising a Proper Form of Government From the Daily Advertiser. Friday, January 11, 1788. MADISON To the People of the State of New York: IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects. That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing, however, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others. With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them. Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part. Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all. To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it. Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments. FEDERALIST No. 38 The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed From the New York Packet. Tuesday, January 15, 1788. MADISON To the People of the State of New York: IT IS not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus. What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens. Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of selfpreservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts. A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. "We concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department." Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself. As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever. I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly? I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed. PUBLIUS. FEDERALIST No. 39 The Conformity of the Plan to Republican Principles For the Independent Journal. MADISON To the People of the State of New York: THE last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions. Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter. "But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States." And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision. Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority. First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act. That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features. The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government. But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character. The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. PUBLIUS. FEDERALIST No. 40 The Powers of the Convention to Form a Mixed Government Examined and Sustained From the New York Packet. Friday, January 18, 1788. MADISON To the People of the State of New York: THE SECOND point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends the "appointment of commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same. "The recommendatory act of Congress is in the words following:"WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT:"Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION. "From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes. There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a TRANSMUTATION of the government. Will it be said that the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress MAY ALL be appointed immediately by the people, and in two States1 are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the PRINCIPLE of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation. The THIRD point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"2 since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who USURPED THE POWER of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition? But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD. The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investigation. PUBLIUS. Connecticut and Rhode Island. Declaration of Independence. FEDERALIST No. 41 General View of the Powers Conferred by The Constitution For the Independent Journal. MADISON To the People of the State of New York: THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches. Under the FIRST view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States? Is the aggregate power of the general government greater than ought to have been vested in it? This is the FIRST question. It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers. The powers falling within the FIRST class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in war? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat. It was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. The distance of the United States from the powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never, for a moment, be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set the same example in the New, as Charles VII. did in the Old World. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage which Great Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. In America the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it. Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added. I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term. Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment, though unlimited by the British Constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House of Commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of TWO YEARS? A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. The palpable necessity of the power to provide and maintain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the Union ought to feel more anxiety on this subject than New York. Her seacoast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the States more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. The power of regulating and calling forth the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare. "But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. " The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation! PUBLIUS. FEDERALIST No. 42 The Powers Conferred by the Constitution Further Considered From the New York Packet. Tuesday, January 22, 1788. MADISON To the People of the State of New York: THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may PERHAPS be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren! Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regulation of coin STRUCK by their own authority, or that of the respective States. It must be seen at once that the proposed uniformity in the VALUE of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States. The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin. The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared "that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce," etc. There is a confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care. PUBLIUS. FEDERALIST No. 43 The Same Subject Continued (The Powers Conferred by the Constitution Further Considered) For the Independent Journal. MADISON To the People of the State of New York: THE FOURTH class comprises the following miscellaneous powers:1. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. "The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. 2. "To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. "The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment. 3. "To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained. "As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. 4. "To admit new States into the Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress. "In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other COLONIES, by which were evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of NEW STATES seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress have been led by it. With great propriety, therefore, has the new system supplied the defect. The general precaution, that no new States shall be formed, without the concurrence of the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent. 5. "To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with a proviso, that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. "This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public. 6. "To guarantee to every State in the Union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. "In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "As the confederate republic of Germany," says Montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. " "Greece was undone," he adds, "as soon as the king of Macedon obtained a seat among the Amphictyons. " In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance. A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. "7. "To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation. "This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. 8. "To provide for amendments to be ratified by three fourths of the States under two exceptions only. "That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it. 9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same. "This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other. PUBLIUS. FEDERALIST No. 44 Restrictions on the Authority of the Several States From the New York Packet. Friday, January 25, 1788. MADISON To the People of the State of New York: A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States:1. "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex-post-facto law, or law impairing the obligation of contracts; or grant any title of nobility. "The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible. The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority. The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the States to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the States, on the same principle with that of issuing a paper currency. Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment. 2. "No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. "The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion. The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. "Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "EXPRESSLY" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted. Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union. If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed. 2. "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding. "The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. 3. "The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution. "It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions. Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States. 4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, I pass them over in this. We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved. PUBLIUS. FEDERALIST No. 45 The Alleged Danger From the Powers of the Union to the State Governments Considered For the Independent Fournal. MADISON To the People of the State of New York: HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. In the feudal system, we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons. The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive. If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union. Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale. Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the State. The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the State governments is incompatible with any system whatever that accomplishes the essential purposes of the Union. PUBLIUS. FEDERALIST No. 46 The Influence of the State and Federal Governments Compared From the New York Packet. Tuesday, January 29, 1788. MADISON To the People of the State of New York: RESUMING the subject of the last paper, I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States. I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States. Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever. It was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the preorgatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. PUBLIUS. FEDERALIST No. 47 The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts From the New York Packet. Friday, February 1, 1788. MADISON To the People of the State of New York: HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. " Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author. If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY. " Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. " This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves. I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention. The constitution of New York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. In its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. The members of the executive council are made EX-OFFICIO justices of peace throughout the State. In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed, three by each of the legislative branches constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX-OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature. Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly. " Yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State. In the constitution of Georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper. PUBLIUS. FEDERALIST No. 48 These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other From the New York Packet. Friday, February 1, 1788. MADISON To the People of the State of New York: IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting "Notes on the State of Virginia," p. 195. "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. "The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution. " In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECONDLY, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRDLY, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. PUBLIUS. FEDERALIST No. 49 Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention From the New York Packet. Tuesday, February 5, 1788. HAMILTON OR MADISON To the People of the State of New York: THE author of the "Notes on the State of Virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. His proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose. "As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numberous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government. We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision. PUBLIUS. FEDERALIST No. 50 Periodical Appeals to the People Considered From the New York Packet. Tuesday, February 5, 1788. HAMILTON OR MADISON To the People of the State of New York: IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other. " This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State. Secondly. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period. Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same. Fourthly. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places. Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. PUBLIUS. FEDERALIST No. 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments From the New York Packet. Friday, February 8, 1788. HAMILTON OR MADISON To the People of the State of New York: TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE. PUBLIUS. FEDERALIST No. 52 The House of Representatives From the New York Packet. Friday, February 8, 1788. HAMILTON OR MADISON To the People of the State of New York: FROM the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government. I shall begin with the House of Representatives. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found. The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among political antiquaries. The earliest records of subsequent date prove that parliaments were to SIT only every year; not that they were to be ELECTED every year. And even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II. , that the intermissions should not be protracted beyond a period of three years. On the accession of William III., when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held FREQUENTLY. By another statute, which passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in the time of Charles II., is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under on alarm for the Hanoverian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents. Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. The parliament which commenced with George II. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election. The ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in SEPTENNIAL elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from BIENNIAL elections. The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other. PUBLIUS. FEDERALIST No. 53 The Same Subject Continued (The House of Representatives) From the New York Packet. Tuesday, February 12, 1788. HAMILTON OR MADISON To the People of the State of New York: I SHALL here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins. " If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is founded? No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial as is proposed in the federal government. Here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina; or that either the one or the other of these States is distinguished in these respects, and by these causes, from the States whose elections are different from both. In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case. The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? The most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? The second question stated is, whether biennial elections be necessary or useful. The propriety of answering this question in the affirmative will appear from several very obvious considerations. No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation? The very statement of the question, in this form, suggests the answer that ought to be given to it. In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State, and with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by t e local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulatious of the different States? How can the trade between the different States be duly regulated, without some knowledge of their relative situations in these and other respects? How can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different States? How can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. The other interior objects will require a proportional degree of information with regard to them. It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. Improvements on the first draughts will every year become both easier and fewer. Past transactions of the government will be a ready and accurate source of information to new members. The affairs of the Union will become more and more objects of curiosity and conversation among the citizens at large. And the increased intercourse among those of different States will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. But with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single State, as to justify the longer period of service assigned to those who are to transact it. A branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. Some portion of this knowledge may, no doubt, be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature. There are other considerations, of less importance, perhaps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. No argument can be drawn on this subject, from the case of the delegates to the existing Congress. They are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. The election of the representatives by the people would not be governed by the same principle. A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate. It is an inconvenience mingled with the advantages of our frequent elections even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people. PUBLIUS. FEDERALIST No. 54 The Apportionment of Members Among the States From the New York Packet. Tuesday, February 12, 1788. HAMILTON OR MADISON To the People of the State of New York: THE next view which I shall take of the House of Representatives relates to the appointment of its members to the several States which is to be determined by the same rule with that of direct taxes. It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State. The establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection. In the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the States, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of America, not to have found a ready preference with the convention. All this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. "We subscribe to the doctrine," might one of our Southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. "This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected, that the Southern States would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? Might not some surprise also be expressed, that those who reproach the Southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? "It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor increase the votes of their masters. Upon what principle, then, ought they to be taken into the federal estimate of representation? In rejecting them altogether, the Constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. "This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives. In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN. "After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea? Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. In the federal Constitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands. "For another reason, the votes allowed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A State possesses no such influence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. The new Constitution is, in this respect, materially different from the existing Confederation, as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a State legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes. "Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established. In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the States, it is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality. PUBLIUS. FEDERALIST No. 55 The Total Number of the House of Representatives From the New York Packet. Friday, February 15, 1788. HAMILTON OR MADISON To the People of the State of New York: THE number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among States nearly equal in population. The number of representatives in Pennsylvania is not more than one fifth of that in the State last mentioned. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other States. Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob. It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. With these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power. The number of which this branch of the legislature is to consist, at the outset of the government, will be sixtyfive. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the Constitution. On a contrary supposition, I should admit the objection to have very great weight indeed. The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens I am unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. What change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. But judging from the circumstances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution. From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? The Congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellowcitizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term. They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny. Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the President, or the Senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representatives cannot, more than suffice for very different purposes; their private fortunes, as they must allbe American citizens, cannot possibly be sources of danger. The only means, then, which they can possess, will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. PUBLIUS. FEDERALIST No. 56 The Same Subject Continued (The Total Number of the House of Representatives) From the New York Packet. Tuesday, February 19, 1788. HAMILTON OR MADISON To the People of the State of New York: THE SECOND charge against the House of Representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. As this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the United States, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the Congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. A proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual State, a very few representatives would be very sufficient vehicles of it to the federal councils. Taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it? The federal councils will derive great advantage from another circumstance. The representatives of each State will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the State legislature, where all the local information and interests of the State are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the United States. The observations made on the subject of taxation apply with greater force to the case of the militia. For however different the rules of discipline may be in different States, they are the same throughout each particular State; and depend on circumstances which can differ but little in different parts of the same State. The attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. This information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single State, but of those among different States. Taking each State by itself, its laws are the same, and its interests but little diversified. A few men, therefore, will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole State might be competently represented by a single member taken from any part of it. On a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State, may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States. The changes of time, as was formerly remarked, on the comparative situation of the different States, will have an assimilating effect. The effect of time on the internal affairs of the States, taken singly, will be just the contrary. At present some of the States are little more than a society of husbandmen. Few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each State, a fuller representation. The foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. The experience of Great Britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight millions. The representatives of these eight millions in the House of Commons amount to five hundred and fifty-eight. Of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons. 1 It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. On the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. They might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. We will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constitutents, are very faintly connected with them, and have very little particular knowledge of their affairs. With all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY constitutents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it, and comparing it with that of the House of Representatives as above explained it seems to give the fullest assurance, that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it. PUBLIUS. Burgh's "Political Disquisitions. " FEDERALIST No. 57 The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation From the New York Packet. Tuesday, February 19, 1788. HAMILTON OR MADISON To the People of the State of New York: THE THIRD charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary. Whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people. Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people. If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people. All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined. Is it supported by REASON? This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. Is the CONSEQUENCE from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? Is the doctrine warranted by FACTS? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the Congress. Those of Massachusetts are larger than will be necessary for that purpose; and those of New York still more so. In the last State the members of Assembly for the cities and counties of New York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress, calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a SINGLE MEMBER for the executive council. This is the case in all the other counties of the State. Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the people? But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the president of New Hampshire. I leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty. PUBLIUS. FEDERALIST No. 58 Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered MADISON To the People of the State of New York: THE remaining charge against the House of Representatives, which I am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. It has been admitted, that this objection, if well supported, would have great weight. The following observations will show that, like most other objections against the Constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. 1. Those who urge the objection seem not to have recollected that the federal Constitution will not suffer by a comparison with the State constitutions, in the security provided for a gradual augmentation of the number of representatives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years. Within every successive term of ten years a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each State shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the constitutions of the several States, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal Constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. 2. As far as experience has taken place on this subject, a gradual increase of representatives under the State constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. 3. There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have most weight; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the representatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution. It may be alleged, perhaps, that the Senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. The following reflections will, if I mistake not, be admitted to be conclusive and satisfactory on this point. Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. This advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the Constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. It is farther to be considered, that in the gradation between the smallest and largest States, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. Hence it is by no means certain that a majority of votes, even in the Senate, would be unfriendly to proper augmentations in the number of representatives. It will not be looking too far to add, that the senators from all the new States may be gained over to the just views of the House of Representatives, by an expedient too obvious to be overlooked. As these States will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. The large States, therefore, who will prevail in the House of Representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing States will be bound to contend for the latter, by the interest which their States will feel in the former. These considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. Admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller States, or their predominant influence in the councils of the Senate, a constitutional and infallible resource still remains with the larger States, by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal Senate or President, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles. In this review of the Constitution of the House of Representatives, I have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the Constitution as has been shown by the smallness of the number proposed. I omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us. PUBLIUS. FEDERALIST No. 59 Concerning the Power of Congress to Regulate the Election of Members From the New York Packet. Friday, February 22, 1788. HAMILTON To the People of the State of New York: THE natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words: "The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing senators. "1 This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. It will not be alleged, that an election law could have been framed and inserted in the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that character. If we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government. And as it is more consonant to the rules of a just theory, to trust the Union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the State governments. An impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. As an objection to this position, it may be remarked that the constitution of the national Senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the State legislatures to regulate the federal elections. It may be alleged, that by declining the appointment of Senators, they might at any time give a fatal blow to the Union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. The interest of each State, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. This argument, though specious, will not, upon examination, be found solid. It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government. But it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. There are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the Senate, to recommend their admission into the system. So far as that construction may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision. But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. It may be easily discerned also that the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives, than from their power of appointing the members of its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be, that a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the States that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. But with regard to the federal House of Representatives, there is intended to be a general election of members once in two years. If the State legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election. I shall not deny, that there is a degree of weight in the observation, that the interests of each State, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the State legislatures. But the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. The people of America may be warmly attached to the government of the Union, at times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite temper. This diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the States at the present moment, on the present question. The scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the State administrations as are capable of preferring their own emolument and advancement to the public weal. With so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable States, where the temptation will always be the strongest, might accomplish the destruction of the Union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal House of Representatives. It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. Its preservation, therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust. PUBLIUS. Ist clause, 4th section, of the Ist article. FEDERALIST No. 60 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) From the New York Packet. Tuesday, February 26, 1788. HAMILTON To the People of the State of New York: WE HAVE seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the State legislatures. Let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the Union itself. It is not pretended, that this right would ever be used for the exclusion of any State from its share in the representation. The interest of all would, in this respect at least, be the security of all. But it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. Of all chimerical suppositions, this seems to be the most chimerical. On the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive. The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the State governments. It is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible. In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients which will compose the national government, and still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. There is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the Union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. But the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors. As to the Senate, it is impossible that any regulation of "time and manner," which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed whether in their hands or in those of the Union. But what is to be the object of this capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of "the wealthy and the well-born," to the exclusion and debasement of all the rest of the society? If this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, I presume it will readily be admitted, that the competition for it will lie between landed men and merchants. And I scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. The inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter. The several States are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single State, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single State. In a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. As long as this interest prevails in most of the State legislatures, so long it must maintain a correspondent superiority in the national Senate, which will generally be a faithful copy of the majorities of those assemblies. It cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the Senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of State power cannot, upon their own principles, suspect, that the State legislatures would be warped from their duty by any external influence. But in reality the same situation must have the same effect, in the primative composition at least of the federal House of Representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other. In order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? As there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. It will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the Union than in those of any of its members. Secondly, that there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. And thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. The importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity. I the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as I understand the meaning of the objectors, they contemplate a discrimination of another kind. They appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of "the wealthy and the well-born." These, it seems, are to be exalted to an odious pre-eminence over the rest of their fellow-citizens. At one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body. But upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? Are "the wealthy and the well-born," as they are called, confined to particular spots in the several States? Have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? Are they only to be met with in the towns or cities? Or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? If the latter is the case, (as every intelligent man knows it to be,1) is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature. Let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still I imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people. The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people? PUBLIUS. 1 Particularly in the Southern States and in this State. FEDERALIST No. 61 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) From the New York Packet. Tuesday, February 26, 1788. HAMILTON To the People of the State of New York: THE more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. This, say they, was a necessary precaution against an abuse of the power. A declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. But it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. The different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice. If those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several State constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. A review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. But as that view would lead into long and tedious details, I shall content myself with the single example of the State in which I write. The constitution of New York makes no other provision for LOCALITY of elections, than that the members of the Assembly shall be elected in the COUNTIES; those of the Senate, in the great districts into which the State is or may be divided: these at present are four in number, and comprehend each from two to six counties. It may readily be perceived that it would not be more difficult to the legislature of New York to defeat the suffrages of the citizens of New York, by confining elections to particular places, than for the legislature of the United States to defeat the suffrages of the citizens of the Union, by the like expedient. Suppose, for instance, the city of Albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the Senate and Assembly for that county and district? Can we imagine that the electors who reside in the remote subdivisions of the counties of Albany, Saratoga, Cambridge, etc., or in any part of the county of Montgomery, would take the trouble to come to the city of Albany, to give their votes for members of the Assembly or Senate, sooner than they would repair to the city of New York, to participate in the choice of the members of the federal House of Representatives? The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. And, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. Hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this State; and for this reason it will be impossible to acquit the one, and to condemn the other. A similar comparison would lead to the same conclusion in respect to the constitutions of most of the other States. If it should be said that defects in the State constitutions furnish no apology for those which are to be found in the plan proposed, I answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. To those who are disposed to consider, as innocent omissions in the State constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single State should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the United States? If they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. And in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests. Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives. It is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each State may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. The times of election in the several States, as they are now established for local purposes, vary between extremes as wide as March and November. The consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations. Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year. It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the question may be retorted, and it may be asked, Why was not a time for the like purpose fixed in the constitution of this State? No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. The same answer may be given to the question put on the other side. And it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government at the same epochs. PUBLIUS. FEDERALIST No. 62 The Senate For the Independent Journal. HAMILTON OR MADISON To the People of the State of New York: HAVING examined the constitution of the House of Representatives, and answered such of the objections against it as seemed to merit notice, I enter next on the examination of the Senate. The heads into which this member of the government may be considered are: I. The qualification of senators; II. The appointment of them by the State legislatures; III. The equality of representation in the Senate; IV. The number of senators, and the term for which they are to be elected; V. The powers vested in the Senate. I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils. II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. III. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable." A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic. Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation. IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution. First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government. Secondly. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration. Thirdly. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate? A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first. Fourthly. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions. To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others. In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY. In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy. But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability. PUBLIUS. FEDERALIST. No. 63 The Senate Continued For the Independent Journal. HAMILTON OR MADISON To the People of the State of New York: A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence. An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind? Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. The half-yearly representatives of Rhode Island would probably have been little affected in their deliberations on the iniquitous measures of that State, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister States; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring. I add, as a SIXTH defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important. Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a NUMEROUS body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents. The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects. Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next. It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that character can be applied. In each of the two first there was a senate for life. The constitution of the senate in the last is less known. Circumstantial evidence makes it probable that it was not different in this particular from the two others. It is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation, as they are repugnant to the genius, of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. I am not unaware of the circumstances which distinguish the American from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. But after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. Many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. There are others peculiar to the former, which require the control of such an institution. The people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act. The difference most relied on, between the American and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. The use which has been made of this difference, in reasonings contained in former papers, will have shown that I am disposed neither to deny its existence nor to undervalue its importance. I feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced, I will refer to a few known facts, in support of what I advance. In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and REPRESENTING the people in their EXECUTIVE capacity. Prior to the reform of Solon, Athens was governed by nine Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them in their LEGISLATIVE capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. The senate of Carthage, also, whatever might be its power, or the duration of its appointment, appears to have been ELECTIVE by the suffrages of the people. Similar instances might be traced in most, if not all the popular governments of antiquity. Lastly, in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY capacity. The Cosmi of Crete were also annually ELECTED BY THE PEOPLE, and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people. From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. For it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece. In answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the Constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy. To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States. But a more particular reply may be given. Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions? If reason condemns the suspicion, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of that State is elected, as the federal Senate will be, indirectly by the people, and for a term less by one year only than the federal Senate. It is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared. On the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution, have been gradually extinguished by the progress of the experiment; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union. But if any thing could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch. As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. The fact is the more remarkable, as unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had, at the commencement of the second Punic War, lost almost the whole of its original portion. Besides the conclusive evidence resulting from this assemblage of facts, that the federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves. PUBLIUS. FEDERALIST No. 64 The Powers of the Senate From the New York Packet. Friday, March 7, 1788. JAY To the People of the State of New York: IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it. The second section gives power to the President, "BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR." The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors. As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged. Although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved. There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws. It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other. But to this plan, as to most others that have ever appeared, objections are contrived and urged. Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government. However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties? As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter. As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations. With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments. PUBLIUS. FEDERALIST No. 65 The Powers of the Senate Continued From the New York Packet. Friday, March 7, 1788. HAMILTON To the People of the State of New York: THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate. A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it. What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded? Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS? Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt? Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded. Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men. But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious. PUBLIUS. FEDERALIST No. 66 Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered From the New York Packet. Tuesday, March 11, 1788. HAMILTON To the People of the State of New York: A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. The FIRST of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and wellestablished maxim which requires a separation between the different departments of power. The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York?1 A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience? If we take this course, it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the junction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings. But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most POPULAR branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government. But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate. A THIRD objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers. If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments. It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy. A FOURTH objection to the Senate in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty? This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation. The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law, a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good. So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace. PUBLIUS. In that of New Jersey, also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvanis, and South Carolina, one branch of the legislature is the court for the trial of impeachments. FEDERALIST No. 67 The Executive Department From the New York Packet. Tuesday, March 11, 1788. HAMILTON To the People of the State of New York: THE constitution of the executive department of the proposed government, claims next our attention. There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment. Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York, have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio. Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. In the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. They so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of Great Britain and a magistrate of the character marked out for that of the President of the United States. It is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition. In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is EXPRESSLY allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate. This bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party1; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. Let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. The second clause of the second section of the second article empowers the President of the United States "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW." Immediately after this clause follows another in these words: "The President shall have power to fill up ?? VACANCIES that may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF THEIR NEXT SESSION." It is from this last provision that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable. The first of these two clauses, it is clear, only provides a mode for appointing such officers, "whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW"; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution2, and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested. The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Secondly. If this clause is to be considered as supplementary to the one which precedes, the VACANCIES of which it speaks must be construed to relate to the "officers" described in the preceding one; and this, we have seen, excludes from its description the members of the Senate. Thirdly. The time within which the power is to operate, "during the recess of the Senate," and the duration of the appointments, "to the end of the next session" of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the State, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President. But lastly, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. The former provides, that "the Senate of the United States shall be composed of two Senators from each State, chosen BY THE LEGISLATURE THEREOF for six years"; and the latter directs, that, "if vacancies in that body should happen by resignation or otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may make temporary appointments until the NEXT MEETING OF THE LEGISLATURE, which shall then fill such vacancies." Here is an express power given, in clear and unambiguous terms, to the State Executives, to fill casual vacancies in the Senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy. I have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution submitted to the consideration of the people. Nor have I scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America. PUBLIUS. 1 See CATO, No. V. 2 Article I, section 3, clause I. FEDERALIST No. 68 The Mode of Electing the President From the New York Packet. Friday, March 14, 1788. HAMILTON To the People of the State of New York: THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded.1 I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for. It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty. Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says: "For forms of government let fools contest That which is best administered is best," yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. The Vice-President is to be chosen in the same manner with the President; with this difference, that the Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect to the latter. The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an officer answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President. PUBLIUS. 1 Vide FEDERAL FARMER. FEDERALIST No. 69 The Real Character of the Executive From the New York Packet. Friday, March 14, 1788. HAMILTON To the People of the State of New York: I PROCEED now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it. The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between HIM and a governor of New York, who is elected for THREE years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of FOUR years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of THREE years for a corresponding office in a single State. The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware. The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. The President is to be the "commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States." In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.1 The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited "to levying war upon the United States, and adhering to their enemies, giving them aid and comfort"; and that by the laws of New York it is confined within similar bounds. Fourthly. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes. The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist2 of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative. The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor. The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor CLAIMS, and has frequently EXERCISED, the right of nomination, and is ENTITLED to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination.3 If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union. Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group. The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism. PUBLIUS. 1 A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, "contrary to all reason and precedent," as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same. 2 Vide Blackstone's "Commentaries," vol i., p. 257. 3 Candor, however, demands an acknowledgment that I do not think the claim of the governor to a right of nomination well founded. Yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion. *There are two slightly different versions of No. 70 included here. FEDERALIST No. 70 The Executive Department Further Considered From the New York Packet. Tuesday, March 18, 1788. HAMILTON To the People of the State of New York: THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome. There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention? The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. The ingredients which constitute safety in the repub lican sense are, first, a due dependence on the people, secondly, a due responsibility. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men.1 Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition, vigor and expedition, and this without anycounterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. It must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. "I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point." These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrunity into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? In the single instance in which the governor of this State is coupled with a council that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I forbear to descend to particulars. It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the pub lic peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. But in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself. The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is ONE";2 that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty. A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is nattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number,3 were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution. PUBLIUS. 1 New York has no council except for the single purpose of appointing to offices; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him. 2 De Lolme. 3 Ten. *There are two slightly different versions of No. 70 included here. FEDERALIST No. 70 The Executive Department Further Considered From the New York Packet. Tuesday, March 18, 1788. HAMILTON To the People of the State of New York: THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome. There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention? The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. The ingredients which constitute safety in the repub lican sense are, first, a due dependence on the people, secondly, a due responsibility. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men.1 Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good se se, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition, vigor and expedition, and this without anycounterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. It must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. "I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point." These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrunity into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? In the single instance in which the governor of this State is coupled with a council that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I forbear to descend to particulars. It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the pub lic peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. But in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself. The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is ONE";2 that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty. A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is nattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number,3 were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution. PUBLIUS. 1 New York has no council except for the single purpose of appointing to offices; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him. 2 De Lolme. 3 Ten. FEDERALIST No. 71 The Duration in Office of the Executive From the New York Packet. Tuesday, March 18, 1788. HAMILTON To the People of the State of New York: DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he MUST lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be, that he MIGHT lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station. There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly INTEND the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision. The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution. It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment. It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation1 attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments. PUBLIUS. 1 This was the case with respect to Mr. Fox's India bill, which was carried in the House of Commons, and rejected in the House of Lords, to the entire satisfaction, as it is said, of the people. FEDERALIST No. 72 The Same Subject Continued, and Re-Eligibility of the Executive Considered From the New York Packet. Friday, March 21, 1788. HAMILTON To the People of the State of New York: THE administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. It is limited to executive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations, and the influence of personal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates, I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of OBTAINING, by MERITING, a continuance of them. This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition. An ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty. Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess? A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellowcitizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration. A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By NECESSITATING a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretense to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege. There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. PUBLIUS. FEDERALIST No. 73 The Provision For The Support of the Executive, and the Veto Power From the New York Packet. Friday, March 21, 1788. HAMILTON To the People of the State of New York: THE third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body. It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that "The President of the United States shall, at stated times, receive for his services a compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United States, or any of them." It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution. The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States. The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of selfdefense. But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body. But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflexion, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them. It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones. Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised. If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican? It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard. But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared. This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers.1 I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive. PUBLIUS. 1 Mr. Abraham Yates, a warm opponent of the plan of the convention is of this number. FEDERALIST No. 74 The Command of the Military and Naval Forces, and the Pardoning Power of the Executive From the New York Packet. Tuesday, March 25, 1788. HAMILTON To the People of the State of New York: THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States." The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. "The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office. He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. PUBLIUS. FEDERALIST No. 75 The Treaty-Making Power of the Executive For the Independent Journal. HAMILTON To the People of the State of New York: THE President is to have power, "by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur." Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of ALL the members of the Senate, to two thirds of the members PRESENT. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated. With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States. To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members PRESENT. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary. To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a PROPORTION which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members MAY, and usually DO, represent a State; whence it happens that Congress, who now are solely invested with ALL THE POWERS of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust. PUBLIUS. FEDERALIST No. 76 The Appointing Power of the Executive From the New York Packet. Tuesday, April 1, 1788. HAMILTON To the People of the State of New York: THE President is "to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up ALL VACANCIES which may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE at the end of their next session." It has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration." If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration. It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments. The venalty of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "No senator or representative shall during the time FOR WHICH HE WAS ELECTED, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office." PUBLIUS. FEDERALIST No. 77 The Appointing Power Continued and Other Powers of the Executive Considered From the New York Packet. Friday, April 4, 1788. HAMILTON To the People of the State of New York: IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true. To state the first in its proper form, is to refute it. It amounts to this: the President would have an improper INFLUENCE OVER the Senate, because the Senate would have the power of RESTRAINING him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. Let us take a view of the converse of the proposition: "the Senate would influence the Executive." As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. The reverse of all this characterizes the manner of appointment in this State. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that TWO out of the inconsiderable number of FOUR men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution. I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea. The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States. Except some cavils about the power of convening EITHER house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. AS this body has a concurrent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer. We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people? PUBLIUS. FEDERALIST No. 78 The Judiciary Department From McLEAN'S Edition, New York. HAMILTON To the People of the State of New York: WE PROCEED now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined. The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other. First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition. Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference. But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws. There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution. PUBLIUS. 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing." "Spirit of Laws." vol. i., page 186. 2 Idem, page 181. 3 Vide "Protest of the Minority of the Convention of Pennsylvania," Martin's Speech, etc. FEDERALIST No. 79 The Judiciary Continued From MCLEAN's Edition, New York. HAMILTON To the People of the State of New York: NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN's SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that PERMANENT1 salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States "shall at STATED TIMES receive for their services a compensation which shall not be DIMINISHED during their continuance in office." This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service. This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges. The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges. The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. PUBLIUS. 1 Vide "Constitution of Massachusetts," chapter 2, section I, article 13. FEDERALIST No. 80 The Powers of the Judiciary From McLEAN's Edition, New York. HAMILTON To the People of the State of New York: To JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects. It seems scarcely to admit of controversy, that the judicary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased. The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States. As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum. The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals. The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body. A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control. It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded. The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction. The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend "all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects." This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend: First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by "cases arising under the Constitution," in contradiction from those "arising under the laws of the United States"? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole. It has also been asked, what need of the word "equity What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of FRAUD, ACCIDENT, TRUST, or HARDSHIP, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day's practice. The judiciary authority of the Union is to extend: Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes. Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last. Sixth. To cases between the citizens of the same State, CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within the last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED CONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES BETWEEN THE CITIZENS OF THE SAME STATE. Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature. From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. PUBLIUS. FEDERALIST. No. 81 The Judiciary Continued, and the Distribution of the Judicial Authority From McLEAN's Edition, New York. HAMILTON To the People of the State of New York: LET US now return to the partition of the judiciary authority between different courts, and their relations to each other, "The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."1 That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended. It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject. It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts,2 and the relations which will subsist between these and the former. The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or AUTHORUZE, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits. But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, an UNRESTRAINED COURSE to appeals, as a source of public and private inconvenience. I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution. These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, "with such EXCEPTIONS and under such REGULATIONS as the Congress shall make." The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word "appellate," therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court. But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.3 This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts. The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States ALL CAUSES are tried in this mode4; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security. This view of the matter, at any rate, puts it out of all doubt that the supposed ABOLITION of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any EXCEPTIONS and REGULATIONS which may be thought advisable; that this appellate jurisdiction does, in no case, ABOLISH the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. PUBLIUS. 1 Article 3, sec. I. 2 This power has been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation. 3 This word is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law. 4 I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. FEDERALIST No. 82 The Judiciary Continued From McLEAN's Edition, New York. HAMILTON To the People of the State of New York: THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'T is time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE. Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. The principles established in a former paper1 teach us that the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. The only thing in the proposed Constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "The JUDICIAL POWER of the United States SHALL BE VESTED in one Supreme Court, and in SUCH inferior courts as the Congress shall from time to time ordain and establish." This might either be construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint; or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction. But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be PECULIAR to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited. Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature "to constitute tribunals inferior to the Supreme Court."2 It declares, in the next place, that "the JUDICIAL POWER of the United States SHALL BE VESTED in one Supreme Court, and in such inferior courts as Congress shall ordain and establish"; and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that they shall be "inferior to the Supreme Court," and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courts of the Union. PUBLIUS. 1 No. 31. 2 Sec. 8th art. 1st. FEDERALIST No. 83 The Judiciary Continued in Relation to Trial by Jury From MCLEAN's Edition, New York. HAMILTON To the People of the State of New York: THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to CIVIL CAUSES, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to CRIMINAL CAUSES. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the EXISTENCE of MATTER, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning. With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man of discernment must at once perceive the wide difference between SILENCE and ABOLITION. But as the inventors of this fallacy have attempted to support it by certain LEGAL MAXIMS of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. The maxims on which they rely are of this nature: "A specification of particulars is an exclusion of generals"; or, "The expression of one thing is the exclusion of another." Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. The rules of legal interpretation are rules of COMMONSENSE, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge THE POWER of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation. From these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. These examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. But that there may be no misapprehensions upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them. Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. From these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention. It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed. It is evident that it can have no influence upon the legislature, in regard to the AMOUNT of taxes to be laid, to the OBJECTS upon which they are to be imposed, or to the RULE by which they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. It would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied. And as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions. In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.1 In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common-law courts have admiralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in PRACTICE further than in any other State yet mentioned. Rhode Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal OF COURSE from one jury to another, till there have been two verdicts out of three on one side. From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose "Trial by jury shall be as heretofore" and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, AS SUCH, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term HERETOFORE could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty. As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every wellregulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS2 to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a SPECIAL determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode. These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect. It is in this form: "In civil actions between citizens of different States, every issue of fact, arising in ACTIONS AT COMMON LAW, may be tried by a jury if the parties, or either of them request it." This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing. But this is not all: if we advert to the observations already made respecting the courts that subsist in the several States of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize THAT species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction. It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the States in the Union, or that would perfectly quadrate with the several State institutions. It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in ALL cases would have been an unpardonable error in the plan. In short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government. I cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished3 by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States. The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. For my part, I acknowledge myself to be convinced that even in this State it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as in Great Britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government. It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a Constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either. PUBLIUS. 1 It has been erroneously insinuated, with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. 2 It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to SPECIAL circumstances, which form exceptions to general rules. 3 Vide No. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court, is examined and refuted. FEDERALIST No. 84 Certain General and Miscellaneous Objections to the Constitution Considered and Answered From McLEAN's Edition, New York. HAMILTON To the People of the State of New York: IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured. To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions. Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9, of the same article, clause 2 "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3 "No bill of attainder or ex-post-facto law shall be passed." Clause 7 "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, section 2, clause 3 "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Section 3, of the same article "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,1 in reference to the latter, are well worthy of recital: "To bereave a man of life, Usays he,e or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls "the BULWARK of the British Constitution."2 Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired. I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved"? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "It is improper," say the objectors, "to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government. It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives. It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union. Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due TO the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT."4 The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people. Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little. It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence. Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress. But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union. PUBLIUS. 1. Vide Blackstone's "Commentaries," vol. 1., p. 136. 2. Vide Blackstone's "Commentaries," vol. iv., p. 438. 3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. FEDERALIST No. 85 Concluding Remarks From MCLEAN's Edition, New York. HAMILTON To the People of the State of New York: ACCORDING to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: "the analogy of the proposed government to your own State constitution," and "the additional security which its adoption will afford to republican government, to liberty, and to property." But these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the supposed defects, than to the real excellences of the former. Among the pretended defects are the re-eligibility of the Executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this State, as on the one proposed for the Union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. The additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals. Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which I did not intend; it is certain that I have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. 'T is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject. I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed. I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. "Why," say they, "should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?" This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. This, as far as I have understood the meaning of those who make the concessions, is an entire perversion of their sense. No advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire. I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials? The reasons assigned in an excellent little pamphlet lately published in this city,1 are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country. There is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. I cannot resolve to conclude without first taking a survey of it in this aspect. It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concurrence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine2 in favor of subsequent amendment, rather than of the original adoption of an entire system. This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution. In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing thirteen States at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged "on the application of the legislatures of two thirds of the States, which at present amount to nine, to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: "To balance a large state or society Usays hee, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments."3 These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience. It may be in me a defect of political fortitude, but I acknowledge that I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A nation, without a national government, is, in my view, an awful spectacle. The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen States, and after having passed over so considerable a part of the ground, to recommence the course. I dread the more the consequences of new attempts, because I know that powerful individuals, in this and in other States, are enemies to a general national government in every possible shape. PUBLIUS. 1 Entitled "An Address to the People of the State of New York." 2 It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify. 3 Hume's "Essays," vol. i., page 128: "The Rise of Arts and Sciences." 
31425	----	[Transcriber's Note: A Table of Contents has been created for the reader's convenience. Minor, obvious printer errors have been corrected without note. Other questionable text is marked by a [Transcriber's Note].] REPORT OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES, AND THE OPINIONS OF THE JUDGES THEREOF, IN THE CASE OF DRED SCOTT VERSUS JOHN F.A. SANDFORD. DECEMBER TERM, 1856. BY BENJAMIN C. HOWARD, FROM THE NINETEENTH VOLUME OF HOWARD'S REPORTS. WASHINGTON: CORNELIUS WENDELL, PRINTER. 1857. CONTENTS Syllabus Mr. Chief Justice Taney (majority opinion) Mr. Justice Wayne (concurrence) Mr. Justice Nelson (concurrence) Mr. Justice Grier (concurrence) Mr. Justice Daniel (concurrence) Mr. Justice Campbell (concurrence) Mr. Justice Catron (concurrence) Mr. Justice McLean (dissent) Mr. Justice Curtis (dissent) SUPREME COURT OF THE UNITED STATES. DECEMBER TERM, 1856. DRED SCOTT VERSUS JOHN F.A. SANDFORD. DRED SCOTT, PLAINTIFF IN ERROR, _v._ JOHN F.A. SANDFORD. This case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri. It was an action of trespass _vi et armis_ instituted in the Circuit Court by Scott against Sandford. Prior to the institution of the present suit, an action was brought by Scott for his freedom in the Circuit Court of St. Louis county, (State court,) where there was a verdict and judgment in his favor. On a writ of error to the Supreme Court of the State, the judgment below was reversed, and the case remanded to the Circuit Court, where it was continued to await the decision of the case now in question. The declaration of Scott contained three counts: one, that Sandford had assaulted the plaintiff; one, that he had assaulted Harriet Scott, his wife; and one, that he had assaulted Eliza Scott and Lizzie Scott, his children. Sandford appeared, and filed the following plea: DRED SCOTT } _v._ } _Plea to the jurisdiction of the Court._ JOHN F.A. SANFORD. } APRIL TERM, 1854. And the said John F.A. Sandford, in his own proper person, comes and says, that this court ought not to have or take further cognisance of the action aforesaid, because he says that said cause of action, and each and every of them, (if any such have accrued to the said Dred Scott,) accrued to the said Dred Scott out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that, to wit: the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify. Wherefore he prays judgment, whether this court can or will take further cognizance of the action aforesaid. JOHN F.A. SANDFORD. To this plea there was a demurrer in the usual form, which was argued in April, 1854, when the court gave judgment that the demurrer should be sustained. In May, 1854, the defendant, in pursuance of an agreement between counsel, and with the leave of the court, pleaded in bar of the action: 1. Not guilty. 2. That the plaintiff was a negro slave, the lawful property of the defendant, and, as such, the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do. 3. That with respect to the wife and daughters of the plaintiff, in the second and third counts of the declaration mentioned, the defendant had, as to them, only acted in the same manner, and in virtue of the same legal right. In the first of these pleas, the plaintiff joined issue; and to the second and third, filed replications alleging that the defendant, of his own wrong and without the cause in his second and third pleas alleged, committed the trespasses, &c. The counsel then filed the following agreed statement of facts, viz: In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at Fort Snelling, from said last mentioned date until the year 1838. In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as herein before stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson herein before named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838. In the year 1836, the plaintiff and said Harriet, at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks. In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided. Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them, and each of them, as slaves. At the times mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do, if they were of right his slaves at such times. Further proof may be given on the trial for either party. It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court the judgment below was reversed, and the same remanded to the Circuit Court, where it has been continued to await the decision of this case. In May, 1854, the cause went before a jury, who found the following verdict, viz: "As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that, before and at the time when, &c., in the first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant; and as to the issue thirdly above joined, we, the jury, find that, before and at the time when, &c., in the second and third counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful property of the defendant." Whereupon, the court gave judgment for the defendant. After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions. On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts, (see agreement above.) No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the following instruction, viz: "That, upon the facts agreed to by the parties, they ought to find for the plaintiff. The court refused to give such instruction to the jury, and the plaintiff, to such refusal, then and there duly excepted." The court then gave the following instruction to the jury, on motion of the defendant: "The jury are instructed, that upon the facts in this case, the law is with the defendant." The plaintiff excepted to this instruction. Upon these exceptions, the case came up to this court. It was argued at December term, 1855, and ordered to be reargued at the present term. It was now argued by _Mr. Blair_ and _Mr. G.F. Curtis_ [Transcriber's Note: should be 'G.T. Curtis,' for George Ticknor Curtis] for the plaintiff in error, and by _Mr. Geyer_ and _Mr. Johnson_ for the defendant in error. The reporter regrets that want of room will not allow him to give the arguments of counsel; but he regrets it the less, because the subject is thoroughly examined in the opinion of the court, the opinions of the concurring judges, and the opinions of the judges who dissented from the judgment of the court. * * * * * Mr. Chief Justice TANEY delivered the opinion of the court. This case has been twice argued. After the argument at the last term, differences of opinion were found to exist among the members of the court; and as the questions in controversy are of the highest importance, and the court was at that time much pressed by the ordinary business of the term, it was deemed advisable to continue the case, and direct a reargument on some of the points, in order that we might have an opportunity of giving to the whole subject a more deliberate consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion. There are two leading questions presented by the record: 1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? And 2. If it had jurisdiction, is the judgment it has given erroneous or not? The plaintiff in error, who was also the plaintiff in the court below, was, with his wife and children, held as slaves by the defendant, in the State of Missouri; and he brought this action in the Circuit Court of the United States for that district, to assert the title of himself and his family to freedom. The declaration is in the form usually adopted in that State to try questions of this description, and contains the averment necessary to give the court jurisdiction; that he and the defendant are citizens of different States; that is, that he is a citizen of Missouri, and the defendant a citizen of New York. The defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff was not a citizen of the State of Missouri, as alleged in his declaration, being a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves. To this plea the plaintiff demurred, and the defendant joined in demurrer. The court overruled the plea, and gave judgment that the defendant should answer over. And he thereupon put in sundry pleas in bar, upon which issues were joined; and at the trial the verdict and judgment were in his favor. Whereupon the plaintiff brought this writ of error. Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement. That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated. If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed. It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court. But, in making this objection, we think the peculiar and limited jurisdiction of courts of the United States has not been adverted to. This peculiar and limited jurisdiction has made it necessary, in these courts, to adopt different rules and principles of pleading, so far as jurisdiction is concerned, from those which regulate courts of common law in England, and in the different States of the Union which have adopted the common-law rules. In these last-mentioned courts, where their character and rank are analogous to that of a Circuit Court of the United States; in other words, where they are what the law terms courts of general jurisdiction; they are presumed to have jurisdiction, unless the contrary appears. No averment in the pleadings of the plaintiff is necessary, in order to give jurisdiction. If the defendant objects to it, he must plead it specially, and unless the fact on which he relies is found to be true by a jury, or admitted to be true by the plaintiff, the jurisdiction cannot be disputed in an appellate court. Now, it is not necessary to inquire whether in courts of that description a party who pleads over in bar, when a plea to the jurisdiction has been ruled against him, does or does not waive his plea; nor whether upon a judgment in his favor on the pleas in bar, and a writ of error brought by the plaintiff, the question upon the plea in abatement would be open for revision in the appellate court. Cases that may have been decided in such courts, or rules that may have been laid down by common-law pleaders, can have no influence in the decision in this court. Because, under the Constitution and laws of the United States, the rules which govern the pleadings in its courts, in questions of jurisdiction, stand on different principles and are regulated by different laws. This difference arises, as we have said, from the peculiar character of the Government of the United States. For although it is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers, enumerated in the Constitution, have been conferred upon it; and neither the legislative, executive, nor judicial departments of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution. And in regulating the judicial department, the cases in which the courts of the United States shall have jurisdiction are particularly and specifically enumerated and defined; and they are not authorized to take cognizance of any case which does not come within the description therein specified. Hence, when a plaintiff sues in a court of the United States, it is necessary that he should show, in his pleading, that the suit he brings is within the jurisdiction of the court, and that he is entitled to sue there. And if he omits to do this, and should, by any oversight of the Circuit Court, obtain a judgment in his favor, the judgment would be reversed in the appellate court for want of jurisdiction in the court below. The jurisdiction would not be presumed, as in the case of a common-law English or State court, unless the contrary appeared. But the record, when it comes before the appellate court, must show, affirmatively, that the inferior court had authority, under the Constitution, to hear and determine the case. And if the plaintiff claims a right to sue in a Circuit Court of the United States, under that provision of the Constitution which gives jurisdiction in controversies between citizens of different States, he must distinctly aver in his pleading that they are citizens of different States; and he cannot maintain his suit without showing that fact in the pleadings. This point was decided in the case of Bingham _v._ Cabot, (in 3 Dall., 382,) and ever since adhered to by the court. And in Jackson _v._ Ashton, (8 Pet., 148,) it was held that the objection to which it was open could not be waived by the opposite party, because consent of parties could not give jurisdiction. It is needless to accumulate cases on this subject. Those already referred to, and the cases of Capron _v._ Van Noorden, (in 2 Cr., 126,) and Montalet _v._ Murray, (4 Cr., 46,) are sufficient to show the rule of which we have spoken. The case of Capron _v._ Van Noorden strikingly illustrates the difference between a common-law court and a court of the United States. If, however, the fact of citizenship is averred in the declaration, and the defendant does not deny it, and put it in issue by plea in abatement, he cannot offer evidence at the trial to disprove it, and consequently cannot avail himself of the objection in the appellate court, unless the defect should be apparent in some other part of the record. For if there is no plea in abatement, and the want of jurisdiction does not appear in any other part of the transcript brought up by the writ of error, the undisputed averment of citizenship in the declaration must be taken in this court to be true. In this case, the citizenship is averred, but it is denied by the defendant in the manner required by the rules of pleading; and the fact upon which the denial is based is admitted by the demurrer. And, if the plea and demurrer, and judgment of the court below upon it, are before us upon this record, the question to be decided is, whether the facts stated in the plea are sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States. We think they are before us. The plea in abatement and the judgment of the court upon it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as such; and a writ of error always brings up to the superior court the whole record of the proceedings in the court below. And in the case of the United States _v._ Smith, (11 Wheat., 172,) this court said, that the case being brought up by writ of error, the whole record was under the consideration of this court. And this being the case in the present instance, the plea in abatement is necessarily under consideration; and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States. This is certainly a very serious question, and one that now for the first time has been brought for decision before this court. But it is brought here by those who have a right to bring it, and it is our duty to meet it and decide it. The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution. It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves. The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our Government. It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people. We proceed to examine the case as presented by the pleadings. The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character. It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it. The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts? The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts. It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States. It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognised as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms. In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion. And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world. The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time. The legislation of the different colonies furnishes positive and indisputable proof of this fact. It would be tedious, in this opinion, to enumerate the various laws they passed upon this subject. It will be sufficient, as a sample of the legislation which then generally prevailed throughout the British colonies, to give the laws of two of them; one being still a large slaveholding State, and the other the first State in which slavery ceased to exist. The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law declaring "that if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court, where such marriage so happens, shall think fit; to be applied by them towards the support of a public school within the said county. And any white man or white woman who shall intermarry as aforesaid, with any negro or mulatto, such white man or white woman shall become servants during the term of seven years, and shall be disposed of by the justices as aforesaid, and be applied to the uses aforesaid." The other colonial law to which we refer was passed by Massachusetts in 1705, (chap. 6.) It is entitled "An act for the better preventing of a spurious and mixed issue," &c.; and it provides, that "if any negro or mulatto shall presume to smite or strike any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at the discretion of the justices before whom the offender shall be convicted." And "that none of her Majesty's English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person, duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her Majesty, for and towards the support of the Government within this province, and the other moiety to him or them that shall inform and sue for the same, in any of her Majesty's courts of record within the province, by bill, plaint, or information." We give both of these laws in the words used by the respective legislative bodies, because the language in which they are framed, as well as the provisions contained in them, show, too plainly to be misunderstood, the degraded condition of this unhappy race. They were still in force when the Revolution began, and are a faithful index to the state of feeling towards the class of persons of whom they speak, and of the position they occupied throughout the thirteen colonies, in the eyes and thoughts of the men who framed the Declaration of Independence and established the State Constitutions and Governments. They show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race. We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. It is necessary to do this, in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them, or to give to them or their posterity the benefit of any of its provisions. The language of the Declaration of Independence is equally conclusive: It begins by declaring that, "when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature's God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation." It then proceeds to say: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed." The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. Yet the men who framed this declaration were great men--high in literary acquirements--high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection. This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language. The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection. It declares that it is formed by the _people_ of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the _people_ of the United States, and of _citizens_ of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no further description or definition was necessary. But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed. One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directly sanctioned and authorized for twenty years by the people who framed the Constitution. And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then formed should endure. And these two provisions show, conclusively, that neither the description of persons therein referred to, nor their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen. No one of that race had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free. It is obvious that they were not even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a State in every other part of the Union. Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended to them. It is very true, that in that portion of the Union where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race; but because it was discovered, from experience, that slave labor was unsuited to the climate and productions of these States: for some of the States, where it had ceased or nearly ceased to exist, were actively engaged in the slave trade, procuring cargoes on the coast of Africa, and transporting them for sale to those parts of the Union where their labor was found to be profitable, and suited to the climate and productions. And this traffic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided. And it can hardly be supposed that, in the States where it was then countenanced in its worst form--that is, in the seizure and transportation--the people could have regarded those who were emancipated as entitled to equal rights with themselves. And we may here again refer, in support of this proposition, to the plain and unequivocal language of the laws of the several States, some passed after the Declaration of Independence and before the Constitution was adopted, and some since the Government went into operation. We need not refer, on this point, particularly to the laws of the present slaveholding States. Their statute books are full of provisions in relation to this class, in the same spirit with the Maryland law which we have before quoted. They have continued to treat them as an inferior class, and to subject them to strict police regulations, drawing a broad line of distinction between the citizen and the slave races, and legislating in relation to them upon the same principle which prevailed at the time of the Declaration of Independence. As relates to these States, it is too plain for argument, that they have never been regarded as a part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure. And as long ago as 1822, the Court of Appeals of Kentucky decided that free negroes and mulattoes were not citizens within the meaning of the Constitution of the United States; and the correctness of this decision is recognised, and the same doctrine affirmed, in 1 Meigs's Tenn. Reports, 331. And if we turn to the legislation of the States where slavery had worn out, or measures taken for its speedy abolition, we shall find the same opinions and principles equally fixed and equally acted upon. Thus, Massachusetts, in 1786, passed a law similar to the colonial one of which we have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white person with any negro, Indian, or mulatto, and inflicts a penalty of fifty pounds upon any one who shall join them in marriage; and declares all such marriages absolutely null and void, and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy. And this mark of degradation was renewed, and again impressed upon the race, in the careful and deliberate preparation of their revised code published in 1836. This code forbids any person from joining in marriage any white person with any Indian, negro, or mulatto, and subjects the party who shall offend in this respect, to imprisonment, not exceeding six months, in the common jail, or to hard labor, and to a fine of not less than fifty nor more than two hundred dollars; and, like the law of 1786, it declares the marriage to be absolutely null and void. It will be seen that the punishment is increased by the code upon the person who shall marry them, by adding imprisonment to a pecuniary penalty. So, too, in Connecticut. We refer more particularly to the legislation of this State, because it was not only among the first to put an end to slavery within its own territory, but was the first to fix a mark of reprobation upon the African slave trade. The law last mentioned was passed in October, 1788, about nine months after the State had ratified and adopted the present Constitution of the United States; and by that law it prohibited its own citizens, under severe penalties, from engaging in the trade, and declared all policies of insurance on the vessel or cargo made in the State to be null and void. But, up to the time of the adoption of the Constitution, there is nothing in the legislation of the State indicating any change of opinion as to the relative rights and position of the white and black races in this country, or indicating that it meant to place the latter, when free, upon a level with its citizens. And certainly nothing which would have led the slaveholding States to suppose, that Connecticut designed to claim for them, under the new Constitution, the equal rights and privileges and rank of citizens in every other State. The first step taken by Connecticut upon this subject was as early as 1774, when it passed an act forbidding the further importation of slaves into the State. But the section containing the prohibition is introduced by the following preamble: "And whereas the increase of slaves in this state is injurious to the poor, and inconvenient." This recital would appear to have been carefully introduced, in order to prevent any misunderstanding of the motive which induced the Legislature to pass the law, and places it distinctly upon the interest and convenience of the white population--excluding the inference that it might have been intended in any degree for the benefit of the other. And in the act of 1784, by which the issue of slaves, born after the time therein mentioned, were to be free at a certain age, the section is again introduced by a preamble assigning similar motive for the act. It is in these words: "Whereas sound policy requires that the abolition of slavery should be effected as soon as may be consistent with the rights of individuals, and the public safety and welfare"--showing that the right of property in the master was to be protected, and that the measure was one of policy, and to prevent the injury and inconvenience, to the whites, of a slave population in the State. And still further pursuing its legislation, we find that in the same statute passed in 1774, which prohibited the further importation of slaves into the State, there is also a provision by which any negro, Indian, or mulatto servant, who was found wandering out of the town or place to which he belonged, without a written pass such as is therein described, was made liable to be seized by any one, and taken before the next authority to be examined and delivered up to his master--who was required to pay the charge which had accrued thereby. And a subsequent section of the same law provides, that if any free negro shall travel without such pass, and shall be stopped, seized, or taken up, he shall pay all charges arising thereby. And this law was in full operation when the Constitution of the United States was adopted, and was not repealed till 1797. So that up to that time free negroes and mulattoes were associated with servants and slaves in the police regulations established by the laws of the State. And again, in 1833, Connecticut passed another law, which made it penal to set up or establish any school in that State for the instruction of persons of the African race not inhabitants of the State or to instruct or teach in any such school or institution, or board or harbor for that purpose, any such person, without the previous consent in writing of the civil authority of the town in which such school or institution might be. And it appears by the case of Crandall _v._ The State, reported in 10 Conn. Rep., 340, that upon an information filed against Prudence Crandall for a violation of this law, one of the points raised in the defence was, that the law was a violation of the Constitution of the United States; and that the persons instructed, although of the African race, were citizens of other States, and therefore entitled to the rights and privileges of citizens in the State of Connecticut. But Chief Justice Dagget, before whom the case was tried, held, that persons of that description were not citizens of a State, within the meaning of the word citizen in the Constitution of the United States, and were not therefore entitled to the privileges and immunities of citizens in other States. The case was carried up to the Supreme Court of Errors of the State, and the question fully argued there. But the case went off upon another point, and no opinion was expressed on this question. We have made this particular examination into the legislative and judicial action of Connecticut, because, from the early hostility it displayed to the slave trade on the coast of Africa, we may expect to find the laws of that State as lenient and favorable to the subject race as those of any other State in the Union; and if we find that at the time the Constitution was adopted, they were not even there raised to the rank of citizens, but were still held and treated as property, and the laws relating to them passed with reference altogether to the interest and convenience of the white race, we shall hardly find them elevated to a higher rank anywhere else. A brief notice of the laws of two other States, and we shall pass on to other considerations. By the laws of New Hampshire, collected and finally passed in 1815, no one was permitted to be enrolled in the militia of the State, but free white citizens; and the same provision is found in a subsequent collection of the laws, made in 1855. Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it. Again, in 1822, Rhode Island, in its revised code, passed a law forbidding persons who were authorized to join persons in marriage, from joining in marriage any white person with any negro, Indian, or mulatto, under the penalty of two hundred dollars, and declaring all such marriages absolutely null and void; and the same law was again re-enacted in its revised code of 1844. So that, down to the last-mentioned period, the strongest mark of inferiority and degradation was fastened upon the African race in that State. It would be impossible to enumerate and compress in the space usually allotted to an opinion of a court, the various laws, marking the condition of this race, which were passed from time to time after the Revolution, and before and since the adoption of the Constitution of the United States. In addition to those already referred to, it is sufficient to say, that Chancellor Kent, whose accuracy and research no one will question, states in the sixth edition of his Commentaries, (published in 1848, 2 vol., 258, note _b_,) that in no part of the country except Maine, did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights. The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State. It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them. Besides, this want of foresight and care would have been utterly inconsistent with the caution displayed in providing for the admission of new members into this political family. For, when they gave to the citizens of each State the privileges and immunities of citizens in the several States, they at the same time took from the several States the power of naturalization, and confined that power exclusively to the Federal Government. No State was willing to permit another State to determine who should or should not be admitted as one of its citizens, and entitled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of _naturalization_ is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class. And when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other countries, by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States a much more important power--that is, the power of transforming into citizens a numerous class of persons, who in that character would be much more dangerous to the peace and safety of a large portion of the Union, than the few foreigners one of the States might improperly naturalize. The Constitution upon its adoption obviously took from the States all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter where he was born, or what might be his character or condition; and it gave to Congress the power to confer this character upon those only who were born outside of the dominions of the United States. And no law of a State, therefore, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory. A clause similar to the one in the Constitution, in relation to the rights and immunities of citizens of one State in the other States, was contained in the Articles of Confederation. But there is a difference of language, which is worthy of note. The provision in the Articles of Confederation was, "that the _free inhabitants_ of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should be entitled to all the privileges and immunities of free citizens in the several States." It will be observed, that under this Confederation, each State had the right to decide for itself, and in its own tribunals, whom it would acknowledge as a free inhabitant of another State. The term _free inhabitant_, in the generality of its terms, would certainly include one of the African race who had been manumitted. But no example, we think, can be found of his admission to all the privileges of citizenship in any State of the Union after these Articles were formed, and while they continued in force. And, notwithstanding the generality of the words "free inhabitants," it is very clear that, according to their accepted meaning in that day, they did not include the African race, whether free or not: for the fifth section of the ninth article provides that Congress should have the power "to agree upon the number of land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of _white_ inhabitants in such State, which requisition should be binding." Words could hardly have been used which more strongly mark the line of distinction between the citizen and the subject; the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be embodied in proportion to its numbers for the general defence. And it cannot for a moment be supposed, that a class of persons thus separated and rejected from those who formed the sovereignty of the States, were yet intended to be included under the words "free inhabitants," in the preceding article, to whom privileges and immunities were so carefully secured in every State. But although this clause of the Articles of Confederation is the same in principle with that inserted in the Constitution, yet the comprehensive word _inhabitant_, which might be construed to include an emancipated slave, is omitted; and the privilege is confined to _citizens_ of the State. And this alteration in words would hardly have been made, unless a different meaning was intended to be conveyed, or a possible doubt removed. The just and fair inference is, that as this privilege was about to be placed under the protection of the General Government, and the words expounded by its tribunals, and all power in relation to it taken from the State and its courts, it was deemed prudent to describe with precision and caution the persons to whom this high privilege was given--and the word _citizen_ was on that account substituted for the words _free inhabitant_. The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted; and also every description of persons who were not fully recognised as citizens in the several States. This, upon any fair construction of the instruments to which we have referred, was evidently the object and purpose of this change of words. To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given. Three laws, two of which were passed almost immediately after the Government went into operation, will be abundantly sufficient to show this. The two first are particularly worthy of notice, because many of the men who assisted in framing the Constitution, and took an active part in procuring its adoption, were then in the halls of legislation, and certainly understood what they meant when they used the words "people of the United States" and "citizen" in that well-considered instrument. The first of these acts is the naturalization law, which was passed at the second session of the first Congress, March 26, 1790, and confines the right of becoming citizens "_to aliens being free white persons_." Now, the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of any one, of any color, who was born under allegiance to another Government. But the language of the law above quoted, shows that citizenship at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the Government. Congress might, as we before said, have authorized the naturalization of Indians, because they were aliens and foreigners. But, in their then untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they had but recently committed, when they were the allies of Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the United States, and they were even then guarding themselves against the threatened renewal of Indian hostilities. No one supposed then that any Indian would ask for, or was capable of enjoying, the privileges of an American citizen, and the word white was not used with any particular reference to them. Neither was it used with any reference to the African race imported into or born in this country; because Congress had no power to naturalize them, and therefore there was no necessity for using particular words to exclude them. It would seem to have been used merely because it followed out the line of division which the Constitution has drawn between the citizen race, who formed and held the Government, and the African race, which they held in subjection and slavery, and governed at their own pleasure. Another of the early laws of which we have spoken, is the first militia law, which was passed in 1792, at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every "free able-bodied white male citizen" shall be enrolled in the militia. The word _white_ is evidently used to exclude the African race, and the word "citizen" to exclude unnaturalized foreigners; the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slave or free; but it is repudiated, and rejected from the duties and obligations of citizenship in marked language. The third act to which we have alluded is even still more decisive; it was passed as late as 1813, (2 Stat., 809,) and it provides: "That from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, _or_ persons of color, natives of the United States." Here the line of distinction is drawn in express words. Persons of color, in the judgment of Congress, were not included in the word citizens, and they are described as another and different class of persons, and authorized to be employed, if born in the United States. And even as late as 1820, (chap. 104, sec. 8,) in the charter to the city of Washington, the corporation is authorized "to restrain and prohibit the nightly and other disorderly meetings of slaves, free negroes, and mulattoes," thus associating them together in its legislation; and after prescribing the punishment that may be inflicted on the slaves, proceeds in the following words: "And to punish such free negroes and mulattoes by penalties not exceeding twenty dollars for any one offence; and in case of the inability of any such free negro or mulatto to pay any such penalty and cost thereon, to cause him or her to be confined to labor for any time not exceeding six calendar months." And in a subsequent part of the same section, the act authorizes the corporation "to prescribe the terms and conditions upon which free negroes and mulattoes may reside in the city." This law, like the laws of the States, shows that this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white citizens. And after such an uniform course of legislation as we have stated, by the colonies, by the States, and by Congress, running through a period of more than a century, it would seem that to call persons thus marked and stigmatized, "citizens" of the United States, "fellow-citizens," a constituent part of the sovereignty, would be an abuse of terms, and not calculated to exalt the character of an American citizen in the eyes of other nations. The conduct of the Executive Department of the Government has been in perfect harmony upon this subject with this course of legislation. The question was brought officially before the late William Wirt, when he was the Attorney General of the United States, in 1821, and he decided that the words "citizens of the United States" were used in the acts of Congress in the same sense as in the Constitution; and that free persons of color were not citizens, within the meaning of the Constitution and laws; and this opinion has been confirmed by that of the late Attorney General, Caleb Cushing, in a recent case, and acted upon by the Secretary of State, who refused to grant passports to them as "citizens of the United States." But it is said that a person may be a citizen, and entitled to that character, although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is entitled to be recognised there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or class resident in the State, and refuse to him the full rights of citizenship. This argument overlooks the language of the provision in the Constitution of which we are speaking. Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens. So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other States, does not apply to them. Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his _status_ or condition, and place him among the class of persons who are not recognised as citizens, but belong to an inferior and subject race; and may deny him the privileges and immunities enjoyed by its citizens. But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State, as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation; and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States. The case of Legrand _v._ Darnall (2 Peters, 664) has been referred to for the purpose of showing that this court has decided that the descendant of a slave may sue as a citizen in a court of the United States; but the case itself shows that the question did not arise and could not have arisen in the case. It appears from the report, that Darnall was born in Maryland, and was the son of a white man by one of his slaves, and his father executed certain instruments to manumit him, and devised to him some landed property in the State. This property Darnall afterwards sold to Legrand, the appellant, who gave his notes for the purchase-money. But becoming afterwards apprehensive that the appellee had not been emancipated according to the laws of Maryland, he refused to pay the notes until he could be better satisfied as to Darnall's right to convey. Darnall, in the mean time, had taken up his residence in Pennsylvania, and brought suit on the notes, and recovered judgment in the Circuit Court for the district of Maryland. The whole proceeding, as appears by the report, was an amicable one; Legrand being perfectly willing to pay the money, if he could obtain a title, and Darnall not wishing him to pay unless he could make him a good one. In point of fact, the whole proceeding was under the direction of the counsel who argued the case for the appellee, who was the mutual friend of the parties, and confided in by both of them, and whose only object was to have the rights of both parties established by judicial decision in the most speedy and least expensive manner. Legrand, therefore, raised no objection to the jurisdiction of the court in the suit at law, because he was himself anxious to obtain the judgment of the court upon his title. Consequently, there was nothing in the record before the court to show that Darnall was of African descent, and the usual judgment and award of execution was entered. And Legrand thereupon filed his bill on the equity side of the Circuit Court, stating that Darnall was born a slave, and had not been legally emancipated, and could not therefore take the land devised to him, nor make Legrand a good title; and praying an injunction to restrain Darnall from proceeding to execution on the judgment, which was granted. Darnall answered, averring in his answer that he was a free man, and capable of conveying a good title. Testimony was taken on this point, and at the hearing the Circuit Court was of opinion that Darnall was a free man and his title good, and dissolved the injunction and dismissed the bill; and that decree was affirmed here, upon the appeal of Legrand. Now, it is difficult to imagine how any question about the citizenship of Darnall, or his right to sue in that character, can be supposed to have arisen or been decided in that case. The fact that he was of African descent was first brought before the court upon the bill in equity. The suit at law had then passed into judgment and award of execution, and the Circuit Court, as a court of law, had no longer any authority over it. It was a valid and legal judgment, which the court that rendered it had not the power to reverse or set aside. And unless it had jurisdiction as a court of equity to restrain him from using its process as a court of law, Darnall, if he thought proper, would have been at liberty to proceed on his judgment, and compel the payment of the money, although the allegations in the bill were true, and he was incapable of making a title. No other court could have enjoined him, for certainly no State equity court could interfere in that way with the judgment of a Circuit Court of the United States. But the Circuit Court as a court of equity certainly had equity jurisdiction over its own judgment as a court of law, without regard to the character of the parties; and had not only the right, but it was its duty--no matter who were the parties in the judgment--to prevent them from proceeding to enforce it by execution, if the court was satisfied that the money was not justly and equitably due. The ability of Darnall to convey did not depend upon his citizenship, but upon his title to freedom. And if he was free, he could hold and convey property, by the laws of Maryland, although he was not a citizen. But if he was by law still a slave, he could not. It was therefore the duty of the court, sitting as a court of equity in the latter case, to prevent him from using its process, as a court of common law, to compel the payment of the purchase-money, when it was evident that the purchaser must lose the land. But if he was free, and could make a title, it was equally the duty of the court not to suffer Legrand to keep the land, and refuse the payment of the money, upon the ground that Darnall was incapable of suing or being sued as a citizen in a court of the United States. The character or citizenship of the parties had no connection with the question of jurisdiction, and the matter in dispute had no relation to the citizenship of Darnall. Nor is such a question alluded to in the opinion of the court. Besides, we are by no means prepared to say that there are not many cases, civil as well as criminal, in which a Circuit Court of the United States may exercise jurisdiction, although one of the African race is a party; that broad question is not before the court. The question with which we are now dealing is, whether a person of the African race can be a citizen of the United States, and become thereby entitled to a special privilege, by virtue of his title to that character, and which, under the Constitution, no one but a citizen can claim. It is manifest that the case of Legrand and Darnall has no bearing on that question, and can have no application to the case now before the court. This case, however, strikingly illustrates the consequences that would follow the construction of the Constitution which would give the power contended for to a State. It would in effect give it also to an individual. For if the father of young Darnall had manumitted him in his lifetime, and sent him to reside in a State which recognised him as a citizen, he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States; and the State officers and tribunals would be compelled, by the paramount authority of the Constitution, to receive him and treat him as one of its citizens, exempt from the laws and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship, without respect to the laws of Maryland, although such laws were deemed by it absolutely essential to its own safety. The only two provisions which point to them and include them, treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Government of special delegated powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require. The States evidently intended to reserve this power exclusively to themselves. No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty. What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since, the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word "citizen" and the word "people." And upon a full and careful consideration of the subject, the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous. We are aware that doubts are entertained by some of the members of the court, whether the plea in abatement is legally before the court upon this writ of error; but if that plea is regarded as waived, or out of the case upon any other ground, yet the question as to the jurisdiction of the Circuit Court is presented on the face of the bill of exception itself, taken by the plaintiff at the trial; for he admits that he and his wife were born slaves, but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places, hereinafter mentioned, where slavery could not by law exist, and that they thereby became free, and upon their return to Missouri became citizens of that State. Now, if the removal of which he speaks did not give them their freedom, then by his own admission he is still a slave; and whatever opinions may be entertained in favor of the citizenship of a free person of the African race, no one supposes that a slave is a citizen of the State or of the United States. If, therefore, the acts done by his owner did not make them free persons, he is still a slave, and certainly incapable of suing in the character of a citizen. The principle of law is too well settled to be disputed, that a court can give no judgment for either party, where it has no jurisdiction; and if, upon the showing of Scott himself, it appeared that he was still a slave, the case ought to have been dismissed, and the judgment against him and in favor of the defendant for costs, is, like that on the plea in abatement, erroneous, and the suit ought to have been dismissed by the Circuit Court for want of jurisdiction in that court. But, before we proceed to examine this part of the case, it may be proper to notice an objection taken to the judicial authority of this court to decide it; and it has been said, that as this court has decided against the jurisdiction of the Circuit Court on the plea in abatement, it has no right to examine any question presented by the exception; and that anything it may say upon that part of the case will be extra-judicial, and mere obiter dicta. This is a manifest mistake; there can be no doubt as to the jurisdiction of this court to revise the judgment of a Circuit Court, and to reverse it for any error apparent on the record, whether it be the error of giving judgment in a case over which it had no jurisdiction, or any other material error; and this, too, whether there is a plea in abatement or not. The objection appears to have arisen from confounding writs of error to a State court, with writs of error to a Circuit Court of the United States. Undoubtedly, upon a writ of error to a State court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jurisdiction in _this court_. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented by the bill of exceptions, or any other part of the record. But writs of error to a State court, and to a Circuit Court of the United States, are regulated by different laws, and stand upon entirely different principles. And in a writ of error to a Circuit Court of the United States, the whole record is before this court for examination and decision; and if the sum in controversy is large enough to give jurisdiction, it is not only the right, but it is the judicial duty of the court, to examine the whole case as presented by the record; and if it appears upon its face that any material error or errors have been committed by the court below, it is the duty of this court to reverse the judgment, and remand the case. And certainly an error in passing a judgment upon the merits in favor of either party, in a case which it was not authorized to try, and over which it had no jurisdiction, is as grave an error as a court can commit. The plea in abatement is not a plea to the jurisdiction of this court, but to the jurisdiction of the Circuit Court. And it appears by the record before us, that the Circuit Court committed an error, in deciding that it had jurisdiction, upon the facts in the case, admitted by the pleadings. It is the duty of the appellate tribunal to correct this error; but that could not be done by dismissing the case for want of jurisdiction here--for that would leave the erroneous judgment in full force, and the injured party without remedy. And the appellate court therefore exercises the power for which alone appellate courts are constituted, by reversing the judgment of the court below for this error. It exercises its proper and appropriate jurisdiction over the judgment and proceedings of the Circuit Court, as they appear upon the record brought up by the writ of error. The correction of one error in the court below does not deprive the appellate court of the power of examining further into the record, and correcting any other material errors which may have been committed by the inferior court. There is certainly no rule of law--nor any practice--nor any decision of a court--which even questions this power in the appellate tribunal. On the contrary, it is the daily practice of this court, and of all appellate courts where they reverse the judgment of an inferior court for error, to correct by its opinions whatever errors may appear on the record material to the case; and they have always held it to be their duty to do so where the silence of the court might lead to misconstruction or future controversy, and the point has been relied on by either side, and argued before the court. In the case before us, we have already decided that the Circuit Court erred in deciding that it had jurisdiction upon the facts admitted by the pleadings. And it appears that, in the further progress of the case, it acted upon the erroneous principle it had decided on the pleadings, and gave judgment for the defendant, where, upon the facts admitted in the exception, it had no jurisdiction. We are at a loss to understand upon what principle of law, applicable to appellate jurisdiction, it can be supposed that this court has not judicial authority to correct the last-mentioned error, because they had before corrected the former; or by what process of reasoning it can be made out, that the error of an inferior court in actually pronouncing judgment for one of the parties, in a case in which it had no jurisdiction, cannot be looked into or corrected by this court, because we have decided a similar question presented in the pleadings. The last point is distinctly presented by the facts contained in the plaintiff's own bill of exceptions, which he himself brings here by this writ of error. It was the point which chiefly occupied the attention of the counsel on both sides in the argument--and the judgment which this court must render upon both errors is precisely the same. It must, in each of them, exercise jurisdiction over the judgment, and reverse it for the errors committed by the court below; and issue a mandate to the Circuit Court to conform its judgment to the opinion pronounced by this court, by dismissing the case for want of jurisdiction in the Circuit Court. This is the constant and invariable practice of this court, where it reverses a judgment for want of jurisdiction in the Circuit Court. It can scarcely be necessary to pursue such a question further. The want of jurisdiction in the court below may appear on the record without any plea in abatement. This is familiarly the case where a court of chancery has exercised jurisdiction in a case where the plaintiff had a plain and adequate remedy at law, and it so appears by the transcript when brought here by appeal. So also where it appears that a court of admiralty has exercised jurisdiction in a case belonging exclusively to a court of common law. In these cases there is no plea in abatement. And for the same reason, and upon the same principles, where the defect of jurisdiction is patent on the record, this court is bound to reverse the judgment, although the defendant has not pleaded in abatement to the jurisdiction of the inferior court. The cases of Jackson _v._ Ashton and of Capron _v._ Van Noorden, to which we have referred in a previous part of this opinion, are directly in point. In the last-mentioned case, Capron brought an action against Van Noorden in a Circuit Court of the United States, without showing, by the usual averments of citizenship, that the court had jurisdiction. There was no plea in abatement put in, and the parties went to trial upon the merits. The court gave judgment in favor of the defendant with costs. The plaintiff thereupon brought his writ of error, and this court reversed the judgment given in favor of the defendant, and remanded the case with directions to dismiss it, because it did not appear by the transcript that the Circuit Court had jurisdiction. The case before us still more strongly imposes upon this court the duty of examining whether the court below has not committed an error, in taking jurisdiction and giving a judgment for costs in favor of the defendant; for in Capron _v._ Van Noorden the judgment was reversed, because it did _not appear_ that the parties were citizens of different States. They might or might not be. But in this case it _does appear_ that the plaintiff was born a slave; and if the facts upon which he relies have not made him free, then it appears affirmatively on the record that he is not a citizen, and consequently his suit against Sandford was not a suit between citizens of different States, and the court had no authority to pass any judgment between the parties. The suit ought, in this view of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford is erroneous, and must be reversed. It is true that the result either way, by dismissal or by a judgment for the defendant, makes very little, if any, difference in a pecuniary or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment would not justify this court in sanctioning an error in the judgment which is patent on the record, and which, if sanctioned, might be drawn into precedent, and lead to serious mischief and injustice in some future suit. We proceed, therefore, to inquire whether the facts relied on by the plaintiff entitled him to his freedom. The case, as he himself states it, on the record brought here by his writ of error, is this: The plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon in the army of the United States. In the year 1834, he took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838. In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at said Fort Snelling, unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838. In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the consent of Dr. Emerson, who then claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks. In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided. Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them, and each of them, as slaves. In considering this part of the controversy, two questions arise: 1. Was he, together with his family, free in Missouri by reason of the stay in the territory of the United States hereinbefore mentioned? And 2. If they were not, is Scott himself free by reason of his removal to Rock Island, in the State of Illinois, as stated in the above admissions? We proceed to examine the first question. The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon any one who is held as a slave under the laws of any one of the States. The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;" but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more. A brief summary of the history of the times, as well as the careful and measured terms in which the article is framed, will show the correctness of this proposition. It will be remembered that, from the commencement of the Revolutionary war, serious difficulties existed between the States, in relation to the disposition of large and unsettled territories which were included in the chartered limits of some of the States. And some of the other States, and more especially Maryland, which had no unsettled lands, insisted that as the unoccupied lands, if wrested from Great Britain, would owe their reservation to the common purse and the common sword, the money arising from them ought to be applied in just proportion among the several States to pay the expenses of the war, and ought not to be appropriated to the use of the State in whose chartered limits they might happen to lie, to the exclusion of the other States, by whose combined efforts and common expense the territory was defended and preserved against the claim of the British Government. These difficulties caused much uneasiness during the war, while the issue was in some degree doubtful, and the future boundaries of the United States yet to be defined by treaty, if we achieved our independence. The majority of the Congress of the Confederation obviously concurred in opinion with the State of Maryland, and desired to obtain from the States which claimed it a cession of this territory, in order that Congress might raise money on this security to carry on the war. This appears by the resolution passed on the 6th of September, 1780, strongly urging the States to cede these lands to the United States, both for the sake of peace and union among themselves, and to maintain the public credit; and this was followed by the resolution of October 10th, 1780, by which Congress pledged itself, that if the lands were ceded, as recommended by the resolution above mentioned, they should be disposed of for the common benefit of the United States, and be settled and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, and freedom, and independence, as other States. But these difficulties became much more serious after peace took place, and the boundaries of the United States were established. Every State, at that time, felt severely the pressure of its war debt; but in Virginia, and some other States, there were large territories of unsettled lands, the sale of which would enable them to discharge their obligations without much inconvenience; while other States, which had no such resource, saw before them many years of heavy and burdensome taxation; and the latter insisted, for the reasons before stated, that these unsettled lands should be treated as the common property of the States, and the proceeds applied to their common benefit. The letters from the statesmen of that day will show how much this controversy occupied their thoughts, and the dangers that were apprehended from it. It was the disturbing element of the time, and fears were entertained that it might dissolve the Confederation by which the States were then united. These fears and dangers were, however, at once removed, when the State of Virginia, in 1784, voluntarily ceded to the United States the immense tract of country lying northwest of the river Ohio, and which was within the acknowledged limits of the State. The only object of the State, in making this cession, was to put an end to the threatening and exciting controversy, and to enable the Congress of that time to dispose of the lands, and appropriate the proceeds as a common fund for the common benefit of the States. It was not ceded, because it was inconvenient to the State to hold and govern it, nor from any expectation that it could be better or more conveniently governed by the United States. The example of Virginia was soon afterwards followed by other States, and, at the time of the adoption of the Constitution, all of the States, similarly situated, had ceded their unappropriated lands, except North Carolina and Georgia. The main object for which these cessions were desired and made, was on account of their money value, and to put an end to a dangerous controversy, as to who was justly entitled to the proceeds when the lands should be sold. It is necessary to bring this part of the history of these cessions thus distinctly into view, because it will enable us the better to comprehend the phraseology of the article in the Constitution, so often referred to in the argument. Undoubtedly the powers of sovereignty and the eminent domain were ceded with the land. This was essential, in order to make it effectual, and to accomplish its objects. But it must be remembered that, at that time, there was no Government of the United States in existence with enumerated and limited powers; what was then called the United States, were thirteen separate, sovereign, independent States, which had entered into a league or confederation for their mutual protection and advantage, and the Congress of the United States was composed of the representatives of these separate sovereignties, meeting together, as equals, to discuss and decide on certain measures which the States, by the Articles of Confederation, had agreed to submit to their decision. But this Confederation had none of the attributes of sovereignty in legislative, executive, or judicial power. It was little more than a congress of ambassadors, authorized to represent separate nations, in matters in which they had a common concern. It was this Congress that accepted the cession from Virginia. They had no power to accept it under the Articles of Confederation. But they had an undoubted right, as independent sovereignties, to accept any cession of territory for their common benefit, which all of them assented to; and it is equally clear, that as their common property, and having no superior to control them, they had the right to exercise absolute dominion over it, subject only to the restrictions which Virginia had imposed in her act of cession. There was, as we have said, no Government of the United States then in existence with special enumerated and limited powers. The territory belonged to sovereignties, who, subject to the limitations above mentioned, had a right to establish any form of government they pleased, by compact or treaty among themselves, and to regulate rights of person and rights of property in the territory, as they might deem proper. It was by a Congress, representing the authority of these several and separate sovereignties, and acting under their authority and command, (but not from any authority derived from the Articles of Confederation,) that the instrument usually called the ordinance of 1787 was adopted; regulating in much detail the principles and the laws by which this territory should be governed; and among other provisions, slavery is prohibited in it. We do not question the power of the States, by agreement among themselves, to pass this ordinance, nor its obligatory force in the territory, while the confederation or league of the States in their separate sovereign character continued to exist. This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia belonged to the several confederated States as common property, and they had united in establishing in it a system of government and jurisprudence, in order to prepare it for admission as States, according to the terms of the cession. They were about to dissolve this federative Union, and to surrender a portion of their independent sovereignty to a new Government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling within its sphere of action throughout the United States; but this Government was to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from the language of the instrument, and the objects it was intended to accomplish; and as this league of States would, upon the adoption of the new Government, cease to have any power over the territory, and the ordinance they had agreed upon be incapable of execution, and a mere nullity, it was obvious that some provision was necessary to give the new Government sufficient power to enable it to carry into effect the objects for which it was ceded, and the compacts and agreements which the States had made with each other in the exercise of their powers of sovereignty. It was necessary that the lands should be sold to pay the war debt; that a Government and system of jurisprudence should be maintained in it, to protect the citizens of the United States who should migrate to the territory, in their rights of person and of property. It was also necessary that the new Government, about to be adopted, should be authorized to maintain the claim of the United States to the unappropriated lands in North Carolina and Georgia, which had not then been ceded, but the cession of which was confidently anticipated upon some terms that would be arranged between the General Government and these two States. And, moreover, there were many articles of value besides this property in land, such as arms, military stores, munitions, and ships of war, which were the common property of the States, when acting in their independent characters as confederates, which neither the new Government nor any one else would have a right to take possession of, or control, without authority from them; and it was to place these things under the guardianship and protection of the new Government, and to clothe it with the necessary powers, that the clause was inserted in the Constitution which gives Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." It was intended for a specific purpose, to provide for the things we have mentioned. It was to transfer to the new Government the property then held in common by the States, and to give to that Government power to apply it to the objects for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and has no reference whatever to any territory or other property which the new sovereignty might afterwards itself acquire. The language used in the clause, the arrangement and combination of the powers, and the somewhat unusual phraseology it uses, when it speaks of the political power to be exercised in the government of the territory, all indicate the design and meaning of the clause to be such as we have mentioned. It does not speak of _any_ territory, nor of _Territories_, but uses language which, according to its legitimate meaning, points to a particular thing. The power is given in relation only to _the_ territory of the United States--that is, to a territory then in existence, and then known or claimed as the territory of the United States. It begins its enumeration of powers by that of disposing, in other words, making sale of the lands, or raising money from them, which, as we have already said, was the main object of the cession, and which is accordingly the first thing provided for in the article. It then gives the power which was necessarily associated with the disposition and sale of the lands--that is, the power of making needful rules and regulations respecting the territory. And whatever construction may now be given to these words, every one, we think, must admit that they are not the words usually employed by statesmen in giving supreme power of legislation. They are certainly very unlike the words used in the power granted to legislate over territory which the new Government might afterwards itself obtain by cession from a State, either for its seat of Government, or for forts, magazines, arsenals, dock yards, and other needful buildings. And the same power of making needful rules respecting the territory is, in precisely the same language, applied to the _other_ property belonging to the United States--associating the power over the territory in this respect with the power over movable or personal property--that is, the ships, arms, and munitions of war, which then belonged in common to the State sovereignties. And it will hardly be said, that this power, in relation to the last-mentioned objects, was deemed necessary to be thus specially given to the new Government, in order to authorize it to make needful rules and regulations respecting the ships it might itself build, or arms and munitions of war it might itself manufacture or provide for the public service. No one, it is believed, would think a moment of deriving the power of Congress to make needful rules and regulations in relation to property of this kind from this clause of the Constitution. Nor can it, upon any fair construction, be applied to any property but that which the new Government was about to receive from the confederated States. And if this be true as to this property, it must be equally true and limited as to the territory, which is so carefully and precisely coupled with it--and like it referred to as property in the power granted. The concluding words of the clause appear to render this construction irresistible; for, after the provisions we have mentioned, it proceeds to say, "that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." Now, as we have before said, all of the States, except North Carolina and Georgia, had made the cession before the Constitution was adopted, according to the resolution of Congress of October 10, 1780. The claims of other States, that the unappropriated lands in these two States should be applied to the common benefit, in like manner, was still insisted on, but refused by the States. And this member of the clause in question evidently applies to them, and can apply to nothing else. It was to exclude the conclusion that either party, by adopting the Constitution, would surrender what they deemed their rights. And when the latter provision relates so obviously to the unappropriated lands not yet ceded by the States, and the first clause makes provision for those then actually ceded, it is impossible, by any just rule of construction, to make the first provision general, and extend to all territories, which the Federal Government might in any way afterwards acquire, when the latter is plainly and unequivocally confined to a particular territory; which was a part of the same controversy, and involved in the same dispute, and depended upon the same principles. The union of the two provisions in the same clause shows that they were kindred subjects; and that the whole clause is local, and relates only to lands, within the limits of the United States, which had been or then were claimed by a State; and that no other territory was in the mind of the framers of the Constitution, or intended to be embraced in it. Upon any other construction it would be impossible to account for the insertion of the last provision in the place where it is found, or to comprehend why, or for what object, it was associated with the previous provision. This view of the subject is confirmed by the manner in which the present Government of the United States dealt with the subject as soon as it came into existence. It must be borne in mind that the same States that formed the Confederation also formed and adopted the new Government, to which so large a portion of their former sovereign powers were surrendered. It must also be borne in mind that all of these same States which had then ratified the new Constitution were represented in the Congress which passed the first law for the government of this territory; and many of the members of that legislative body had been deputies from the States under the Confederation--had united in adopting the ordinance of 1787, and assisted in forming the new Government under which they were then acting, and whose powers they were then exercising. And it is obvious from the law they passed to carry into effect the principles and provisions of the ordinance, that they regarded it as the act of the States done in the exercise of their legitimate powers at the time. The new Government took the territory as it found it, and in the condition in which it was transferred, and did not attempt to undo anything that had been done. And, among the earliest laws passed under the new Government, is one reviving the ordinance of 1787, which had become inoperative and a nullity upon the adoption of the Constitution. This law introduces no new form or principles for its government, but recites, in the preamble, that it is passed in order that this ordinance may continue to have full effect, and proceeds to make only those rules and regulations which were needful to adapt it to the new Government, into whose hands the power had fallen. It appears, therefore, that this Congress regarded the purposes to which the land in this Territory was to be applied, and the form of government and principles of jurisprudence which were to prevail there, while it remained in the Territorial state, as already determined on by the States when they had full power and right to make the decision; and that the new Government, having received it in this condition, ought to carry substantially into effect the plans and principles which had been previously adopted by the States, and which no doubt the States anticipated when they surrendered their power to the new Government. And if we regard this clause of the Constitution as pointing to this Territory, with a Territorial Government already established in it, which had been ceded to the States for the purposes hereinbefore mentioned--every word in it is perfectly appropriate and easily understood, and the provisions it contains are in perfect harmony with the objects for which it was ceded, and with the condition of its government as a Territory at the time. We can, then, easily account for the manner in which the first Congress legislated on the subject--and can also understand why this power over the territory was associated in the same clause with the other property of the United States, and subjected to the like power of making needful rules and regulations. But if the clause is construed in the expanded sense contended for, so as to embrace any territory acquired from a foreign nation by the present Government, and to give it in such territory a despotic and unlimited power over persons and property, such as the confederated States might exercise in their common property, it would be difficult to account for the phraseology used, when compared with other grants of power--and also for its association with the other provisions in the same clause. The Constitution has always been remarkable for the felicity of its arrangement of different subjects, and the perspicuity and appropriateness of the language it uses. But if this clause is construed to extend to territory acquired by the present Government from a foreign nation, outside of the limits of any charter from the British Government to a colony, it would be difficult to say, why it was deemed necessary to give the Government the power to sell any vacant lands belonging to the sovereignty which might be found within it; and if this was necessary, why the grant of this power should precede the power to legislate over it and establish a Government there; and still more difficult to say, why it was deemed necessary so specially and particularly to grant the power to make needful rules and regulations in relation to any personal or movable property it might acquire there. For the words, _other property_ necessarily, by every known rule of interpretation, must mean property of a different description from territory or land. And the difficulty would perhaps be insurmountable in endeavoring to account for the last member of the sentence, which provides that "nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State," or to say how any particular State could have claims in or to a territory ceded by a foreign Government, or to account for associating this provision with the preceding provisions of the clause, with which it would appear to have no connection. The words "needful rules and regulations" would seem, also, to have been cautiously used for some definite object. They are not the words usually employed by statesmen, when they mean to give the powers of sovereignty, or to establish a Government, or to authorize its establishment. Thus, in the law to renew and keep alive the ordinance of 1787, and to re-establish the Government, the title of the law is: "An act to provide for the government of the territory northwest of the river Ohio." And in the Constitution, when granting the power to legislate over the territory that may be selected for the seat of Government independently of a State, it does not say Congress shall have power "to make all needful rules and regulations respecting the territory;" but it declares that "Congress shall have power to exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States." The words "rules and regulations" are usually employed in the Constitution in speaking of some particular specified power which it means to confer on the Government, and not, as we have seen, when granting general powers of legislation. As, for example, in the particular power to Congress "to make rules for the government and regulation of the land and naval forces, or the particular and specific power to regulate commerce;" "to establish an uniform _rule_ of naturalization;" "to coin money and _regulate_ the value thereof." And to construe the words of which we are speaking as a general and unlimited grant of sovereignty over territories which the Government might afterwards acquire, is to use them in a sense and for a purpose for which they were not used in any other part of the instrument. But if confined to a particular Territory, in which a Government and laws had already been established, but which would require some alterations to adapt it to the new Government, the words are peculiarly applicable and appropriate for that purpose. The necessity of this special provision in relation to property and the rights or property held in common by the confederated States, is illustrated by the first clause of the sixth article. This clause provides that "all debts, contracts, and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Government as under the Confederation." This provision, like the one under consideration, was indispensable if the new Constitution was adopted. The new Government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But, when the present United States came into existence under the new Government, it was a new political body, a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution. And as the several states would cease to exist in their former confederated character upon the adoption of the Constitution, and could not, in that character, again assemble together, special provisions were indispensable to transfer to the new Government the property and rights which at that time they held in common; and at the same time to authorize it to lay taxes and appropriate money to pay the common debt which they had contracted; and this power could only be given to it by special provisions in the Constitution. The clause in relation to the territory and other property of the United States provided for the first, and the clause last quoted provided for the other. They have no connection with the general powers and rights of sovereignty delegated to the new Government, and can neither enlarge nor diminish them. They were inserted to meet a present emergency, and not to regulate its powers as a Government. Indeed, a similar provision was deemed necessary, in relation to treaties made by the Confederation; and when in the clause next succeeding the one of which we have last spoken, it is declared that treaties shall be the supreme law of the land, care is taken to include, by express words, the treaties made by the confederated States. The language is: "and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Whether, therefore, we take the particular clause in question, by itself, or in connection with the other provisions of the Constitution, we think it clear, that it applies only to the particular territory of which we have spoken, and cannot, by any just rule of interpretation, be extended to territory which the new Government might afterwards obtain from a foreign nation. Consequently, the power which Congress may have lawfully exercised in this Territory, while it remained under a Territorial Government, and which may have been sanctioned by judicial decision, can furnish no justification and no argument to support a similar exercise of power over territory afterwards acquired by the Federal Government. We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the General Government exercised over slavery in this Territory, as altogether inapplicable to the case before us. But the case of the American and Ocean Insurance Companies _v._ Canter (1 Pet., 511) has been quoted as establishing a different construction of this clause of the Constitution. There is, however, not the slightest conflict between the opinion now given and the one referred to; and it is only by taking a single sentence out of the latter and separating it from the context, that even an appearance of conflict can be shown. We need not comment on such a mode of expounding an opinion of the court. Indeed it most commonly misrepresents instead of expounding it. And this is fully exemplified in the case referred to, where, if one sentence is taken by itself, the opinion would appear to be in direct conflict with that now given; but the words which immediately follow that sentence show that the court did not mean to decide the point, but merely affirmed the power of Congress to establish a Government in the Territory, leaving it an open question, whether that power was derived from this clause in the Constitution, or was to be necessarily inferred from a power to acquire territory by cession from a foreign Government. The opinion on this part of the case is short, and we give the whole of it to show how well the selection of a single sentence is calculated to mislead. The passage referred to is in page 542, in which the court, in speaking of the power of Congress to establish a Territorial Government in Florida until it should become a State, uses the following language: "In the mean time Florida continues to be a Territory of the United States, governed by that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property of the United States. Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result, necessarily, from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. _Whichever may be the source from which the power is derived, the possession of it is unquestionable._" It is thus clear, from the whole opinion on this point, that the court did not mean to decide whether the power was derived from the clause in the Constitution, or was the necessary consequence of the right to acquire. They do decide that the power in Congress is unquestionable, and in this we entirely concur, and nothing will be found in this opinion to the contrary. The power stands firmly on the latter alternative put by the court--that is, as "_the inevitable consequence of the right to acquire territory_." And what still more clearly demonstrates that the court did not mean to decide the question, but leave it open for future consideration, is the fact that the case was decided in the Circuit Court by Mr. Justice Johnson, and his decision was affirmed by the Supreme Court. His opinion at the circuit is given in full in a note to the case, and in that opinion he states, in explicit terms, that the clause of the Constitution applies only to the territory then within the limits of the United States, and not to Florida, which had been acquired by cession from Spain. This part of his opinion will be found in the note in page 517 of the report. But he does not dissent from the opinion of the Supreme Court; thereby showing that, in his judgment, as well as that of the court, the case before them did not call for a decision on that particular point, and the court abstained from deciding it. And in a part of its opinion subsequent to the passage we have quoted, where the court speak of the legislative power of Congress in Florida, they still speak with the same reserve. And in page 546, speaking of the power of Congress to authorize the Territorial Legislature to establish courts there, the court say: "They are legislative courts, created in virtue of the general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States." It has been said that the construction given to this clause is new, and now for the first time brought forward. The case of which we are speaking, and which has been so much discussed, shows that the fact is otherwise. It shows that precisely the same question came before Mr. Justice Johnson, at his circuit, thirty years ago--was fully considered by him, and the same construction given to the clause in the Constitution which is now given by this court. And that upon an appeal from his decision the same question was brought before this court, but was not decided because a decision upon it was not required by the case before the court. There is another sentence in the opinion which has been commented on, which even in a still more striking manner shows how one may mislead or be misled by taking out a single sentence from the opinion of a court, and leaving out of view what precedes and follows. It is in page 546, near the close of the opinion, in which the court say: "In legislating for them," (the territories of the United States,) "Congress exercises the combined powers of the General and of a State Government." And it is said, that as a State may unquestionably prohibit slavery within its territory, this sentence decides in effect that Congress may do the same in a Territory of the United States, exercising there the powers of a State, as well as the power of the General Government. The examination of this passage in the case referred to, would be more appropriate when we come to consider in another part of this opinion what power Congress can constitutionally exercise in a Territory, over the rights of person or rights of property of a citizen. But, as it is in the same case with the passage we have before commented on, we dispose of it now, as it will save the court from the necessity of referring again to the case. And it will be seen upon reading the page in which this sentence is found, that it has no reference whatever to the power of Congress over rights of person or rights of property--but relates altogether to the power of establishing judicial tribunals to administer the laws constitutionally passed, and defining the jurisdiction they may exercise. The law of Congress establishing a Territorial Government in Florida, provided that the Legislature of the Territory should have legislative powers over "all rightful objects of legislation; but no law should be valid which was inconsistent with the laws and Constitution of the United States." Under the power thus conferred, the Legislature of Florida passed an act, erecting a tribunal at Key West to decide cases of salvage. And in the case of which we are speaking, the question arose whether the Territorial Legislature could be authorized by Congress to establish such a tribunal, with such powers; and one of the parties, among other objections, insisted that Congress could not under the Constitution authorize the Legislature of the Territory to establish such a tribunal with such powers, but that it must be established by Congress itself; and that a sale of cargo made under its order, to pay salvors, was void, as made without legal authority, and passed no property to the purchaser. It is in disposing of this objection that the sentence relied on occurs, and the court begin that part of the opinion by stating with great precision the point which they are about to decide. They say: "It has been contended that by the Constitution of the United States, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction; and that the whole of the judicial power must be vested 'in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish.' Hence it has been argued that Congress cannot vest admiralty jurisdiction in courts created by the Territorial Legislature." And after thus clearly stating the point before them, and which they were about to decide, they proceed to show that these Territorial tribunals were not constitutional courts, but merely legislative, and that Congress might, therefore, delegate the power to the Territorial Government to establish the court in question; and they conclude that part of the opinion in the following words: "Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the General and State Governments." Thus it will be seen by these quotations from the opinion, that the court, after stating the question it was about to decide in a manner too plain to be misunderstood, proceeded to decide it, and announced, as the opinion of the tribunal, that in organizing the judicial department of the Government in a Territory of the United States, Congress does not act under, and is not restricted by, the third article in the Constitution, and is not bound, in a Territory, to ordain and establish courts in which the judges hold their offices during good behaviour, but may exercise the discretionary power which a State exercises in establishing its judicial department, and regulating the jurisdiction of its courts, and may authorize the Territorial Government to establish, or may itself establish, courts in which the judges hold their offices for a term of years only; and may vest in them judicial power upon subjects confided to the judiciary of the United States. And in doing this, Congress undoubtedly exercises the combined power of the General and a State Government. It exercises the discretionary power of a State Government in authorizing the establishment of a court in which the judges hold their appointments for a term of years only, and not during good behaviour; and it exercises the power of the General Government in investing that court with admiralty jurisdiction, over which the General Government had exclusive jurisdiction in the Territory. No one, we presume, will question the correctness of that opinion; nor is there anything in conflict with it in the opinion now given. The point decided in the case cited has no relation to the question now before the court. That depended on the construction of the third article of the Constitution, in relation to the judiciary of the United States, and the power which Congress might exercise in a Territory in organizing the judicial department of the Government. The case before us depends upon other and different provisions of the Constitution, altogether separate and apart from the one above mentioned. The question as to what courts Congress may ordain or establish in a Territory to administer laws which the Constitution authorizes it to pass, and what laws it is or is not authorized by the Constitution to pass, are widely different--are regulated by different and separate articles of the Constitution, and stand upon different principles. And we are satisfied that no one who reads attentively the page in Peters's Reports to which we have referred, can suppose that the attention of the court was drawn for a moment to the question now before this court, or that it meant in that case to say that Congress had a right to prohibit a citizen of the United States from taking any property which he lawfully held into a Territory of the United States. This brings us to examine by what provision of the Constitution the present Federal Government, under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United States, while it remains a Territory, and until it shall be admitted as one of the States of the Union. There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers, and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character. And indeed the power exercised by Congress to acquire territory and establish a Government there, according to its own unlimited discretion, was viewed with great jealousy by the leading statesmen of the day. And in the Federalist, (No. 38,) written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the confederated States, by the cession from Virginia, and the establishment of a Government there, as an exercise of power not warranted by the Articles of Confederation, and dangerous to the liberties of the people. And he urges the adoption of the Constitution as a security and safeguard against such an exercise of power. We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the Government, and not the judicial; and whatever the political department of the Government shall recognise as within the limits of the United States, the judicial department is also bound to recognise, and to administer in it the laws of the United States, so far as they apply, and to maintain in the Territory the authority and rights of the Government, and also the personal rights and rights of property of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a Territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed. Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose. The principle upon which our Governments rest, and upon which alone they continue to exist, is the union of States, sovereign and independent within their own limits in their internal and domestic concerns, and bound together as one people by a General Government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the General Government to obtain and hold colonies and dependent territories, over which they might legislate without restriction, would be inconsistent with its own existence in its present form. Whatever it acquires, it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interests of the whole people of the Union in the exercise of the powers specifically granted. At the time when the Territory in question was obtained by cession from France, it contained no population fit to be associated together and admitted as a State; and it therefore was absolutely necessary to hold possession of it, as a Territory belonging to the United States, until it was settled and inhabited by a civilized community capable of self-government, and in a condition to be admitted on equal terms with the other States as a member of the Union. But, as we have before said, it was acquired by the General Government, as the representative and trustee of the people of the United States, and it must therefore be held in that character for their common and equal benefit; for it was the people of the several States, acting through their agent and representative, the Federal Government, who in fact acquired the Territory in question, and the Government holds it for their common use until it shall be associated with the other States as a member of the Union. But until that time arrives, it is undoubtedly necessary that some Government should be established, in order to organize society, and to protect the inhabitants in their persons and property; and as the people of the United States could act in this matter only through the Government which represented them, and through which they spoke and acted when the Territory was obtained, it was not only within the scope of its powers, but it was its duty to pass such laws and establish such a Government as would enable those by whose authority they acted to reap the advantages anticipated from its acquisition, and to gather there a population which would enable it to assume the position to which it was destined among the States of the Union. The power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. The form of government to be established necessarily rested in the discretion of Congress. It was their duty to establish the one that would be best suited for the protection and security of the citizens of the United States, and other inhabitants who might be authorized to take up their abode there, and that must always depend upon the existing condition of the Territory, as to the number and character of its inhabitants, and their situation in the Territory. In some cases a Government, consisting of persons appointed by the Federal Government, would best subserve the interests of the Territory, when the inhabitants were few and scattered, and new to one another. In other instances, it would be more advisable to commit the powers of self-government to the people who had settled in the Territory, as being the most competent to determine what was best for their own interests. But some form of civil authority would be absolutely necessary to organize and preserve civilized society, and prepare it to become a State; and what is the best form must always depend on the condition of the Territory at the time, and the choice of the mode must depend upon the exercise of a discretionary power by Congress, acting within the scope of its constitutional authority, and not infringing upon the rights of person or rights of property of the citizen who might go there to reside, or for any other lawful purpose. It was acquired by the exercise of this discretion, and it must be held and governed in like manner, until it is fitted to be a State. But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved. A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances. Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted; nor take private property for public use without just compensation. The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this--if it is beyond the powers conferred on the Federal Government--it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution. It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it, have been dwelt upon in the argument. But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. And if the Constitution recognises the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government. Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words--too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights. Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident. We have so far examined the case, as it stands under the Constitution of the United States, and the powers thereby delegated to the Federal Government. But there is another point in the case which depends on State power and State law. And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States; and being so made free, he was not again reduced to a state of slavery by being brought back to Missouri. Our notice of this part of the case will be very brief; for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader et al. _v._ Graham, reported in 10th Howard, 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their _status_ or condition, as free or slave, depended upon the laws of Kentucky, when they were brought back into that State, and not of Ohio; and that this court had no jurisdiction to revise the judgment of a State court upon its own laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case. So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his _status_, as free or slave, depended on the laws of Missouri, and not of Illinois. It has, however, been urged in the argument, that by the laws of Missouri he was free on his return, and that this case, therefore, cannot be governed by the case of Strader et al. _v._ Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio. But whatever doubts or opinions may, at one time, have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State, that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave, and not a citizen. Moreover, the plaintiff, it appears, brought a similar action against the defendant in the State court of Missouri, claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court. The case was carried before the Supreme Court of the State; was fully argued there; and that court decided that neither the plaintiff nor his family were entitled to freedom, and were still the slaves of the defendant; and reversed the judgment of the inferior State court, which had given a different decision. If the plaintiff supposed that this judgment of the Supreme Court of the State was erroneous, and that this court had jurisdiction to revise and reverse it, the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the State, requiring it to transmit the record to this court. If this had been done, it is too plain for argument that the writ must have been dismissed for want of jurisdiction in this court. The case of Strader and others _v._ Graham is directly in point; and, indeed, independent of any decision, the language of the 25th section of the act of 1789 is too clear and precise to admit of controversy. But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us, and by the printed report of the case. And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence, and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the State court. And if this court takes jurisdiction in this form, the result, so far as the rights of the respective parties are concerned, is in every respect substantially the same as if it had in open violation of law entertained jurisdiction over the judgment of the State court upon a writ of error, and revised and reversed its judgment upon the ground that its opinion upon the question of law was erroneous. It would ill become this court to sanction such an attempt to evade the law, or to exercise an appellate power in this circuitous way, which it is forbidden to exercise in the direct and regular and invariable forms of judicial proceedings. Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction. * * * * * Mr. Justice WAYNE. Concurring as I do entirely in the opinion of the court, as it has been written and read by the Chief Justice--without any qualification of its reasoning or its conclusions--I shall neither read nor file an opinion of my own in this case, which I prepared when I supposed it might be necessary and proper for me to do so. The opinion of the court meets fully and decides every point which was made in the argument of the case by the counsel on either side of it. Nothing belonging to the case has been left undecided, nor has any point been discussed and decided which was not called for by the record, or which was not necessary for the judicial disposition of it, in the way that it has been done, by more than a majority of the court. In doing this, the court neither sought nor made the case. It was brought to us in the course of that administration of the laws which Congress has enacted, for the review of cases from the Circuit Courts by the Supreme Court. In our action upon it, we have only discharged our duty as a distinct and efficient department of the Government, as the framers of the Constitution meant the judiciary to be, and as the States of the Union and the people of those States intended it should be, when they ratified the Constitution of the United States. The case involves private rights of value, and constitutional principles of the highest importance, about which there had become such a difference of opinion, that the peace and harmony of the country required the settlement of them by judicial decision. It would certainly be a subject of regret, that the conclusions of the court have not been assented to by all of its members, if I did not know from its history and my own experience how rarely it has happened that the judges have been unanimous upon constitutional questions of moment, and if our decision in this case had not been made by as large a majority of them as has been usually had on constitutional questions of importance. Two of the judges, Mr. Justices McLean and Curtis, dissent from the opinion of the court. A third, Mr. Justice Nelson, gives a separate opinion upon a single point in the case, with which I concur, assuming that the Circuit Court had jurisdiction; but he abstains altogether from expressing any opinion upon the eighth section of the act of 1820, known commonly as the Missouri Compromise law, and six of us declare that it was unconstitutional. But it has been assumed, that this court has acted extra-judicially in giving an opinion upon the eighth section of the act of 1820, because, as it has decided that the Circuit Court had no jurisdiction of the case, this court had no jurisdiction to examine the case upon its merits. But the error of such an assertion has arisen in part from a misapprehension of what has been heretofore decided by the Supreme Court, in cases of a like kind with that before us; in part, from a misapplication to the Circuit Courts of the United States, of the rules of pleading concerning pleas to the jurisdiction which prevail in common-law courts; and from its having been forgotten that this case was not brought to this court by appeal or writ of error from a State court, but by a writ of error to the Circuit Court of the United States. The cases cited by the Chief Justice to show that this court has now only done what it has repeatedly done before in other cases, without any question of its correctness, speak for themselves. The differences between the rules concerning pleas to the jurisdiction in the courts of the United States and common-law courts have been stated and sustained by reasoning and adjudged cases; and it has been shown that writs of error to a State court and to the Circuit Courts of the United States are to be determined by different laws and principles. In the first, it is our duty ascertain if this court has jurisdiction, under the twenty-fifth section of the judiciary act, to review the case _from the State court_; and if it shall be found that it has not, the case is at end, so far as this court is concerned; for our power to review the case upon its merits has been made, by the twenty-fifth section, to depend upon its having jurisdiction; when it has not, this court cannot criticise, controvert, or give any opinion upon the merits of a case from a State court. But in a case brought to this court, by appeal or by writ of error from _a Circuit Court of the United States_, we begin a review of it, _not by inquiring if this court has jurisdiction_, but if that court has it. If the case has been decided by that court upon its merits, but the record shows it to be deficient in those averments which by the law of the United States must be made by the plaintiff in the action, to give the court jurisdiction of his case, we send it back to the court from which it was brought, with directions to be dismissed, though it has been decided there upon its merits. So, in a case containing the averments by the plaintiff which are necessary to give the Circuit Court jurisdiction, if the defendant shall file his plea in abatement denying the truth of them, and the plaintiff shall demur to it, and the court should _erroneously sustain the plaintiff's demurrer, or declare the plea to be insufficient, and by doing so require the defendant to answer over by a plea to the merits, and shall decide the case upon such pleading_, this court has the same authority to inquire into the jurisdiction of that court to do so, and to correct its error in that regard, that it had in the other case to correct its error, in trying a case in which the plaintiff had not made those averments which were necessary to give the court jurisdiction. In both cases the record is resorted to, to determine the point of jurisdiction; but, as the power of review of cases from a Federal court, by this court, is not limited by the law to a part of the case, this court may correct an error upon the merits; and there is the same reason for correcting an erroneous judgment of the Circuit Court, where the want of jurisdiction appears from any part of the record, that there is for declaring a want of jurisdiction for a want of necessary averments. Any attempt to control the court from doing so by the technical common-law rules of pleading in cases of jurisdiction, when a defendant has been denied his plea to it, would tend to enlarge the jurisdiction of the Circuit Court, by limiting this court's review of its judgments in that particular. But I will not argue a point already so fully discussed. I have every confidence in the opinion of the court upon the point of jurisdiction, and do not allow myself to doubt that the error of a contrary conclusion will be fully understood by all who shall read the argument of the Chief Justice. I have already said that the opinion of the court has my unqualified assent. * * * * * Mr. Justice NELSON. I shall proceed to state the grounds upon which I have arrived at the conclusion, that the judgment of the court below should be affirmed. The suit was brought in the court below by the plaintiff, for the purpose of asserting his freedom, and that of Harriet, his wife, and two children. The defendant plead, in abatement to the suit, that the cause of action, if any, accrued to the plaintiff out of the jurisdiction of the court, and exclusively within the jurisdiction of the courts of the State of Missouri; for, that the said plaintiff is not a citizen of the State of Missouri, as alleged in the declaration, because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves. To this plea the plaintiff demurred, and the defendant joined in demurrer. The court below sustained the demurrer, holding that the plea was insufficient in law to abate the suit. The defendant then plead over in bar of the action: 1. The general issue. 2. That the plaintiff was a negro slave, the lawful property of the defendant. And 3. That Harriet, the wife of said plaintiff, and the two children, were the lawful slaves of the said defendant. Issue was taken upon these pleas, and the cause went down to trial before the court and jury, and an agreed state of facts was presented, upon which the trial proceeded, and resulted in a verdict for the defendant, under the instructions of the court. The facts agreed upon were substantially as follows: That in the year 1834, the plaintiff, Scott, was a negro slave of Dr. Emerson, who was a surgeon in the army of the United States; and in that year he took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At this date, Dr. Emerson removed, with the plaintiff from the Rock Island post to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory of Upper Louisiana, and north of the latitude thirty-six degrees thirty minutes, and north of the State of Missouri. That he held the plaintiff in slavery, at Fort Snelling, from the last-mentioned date until the year 1838. That in the year 1835, Harriet, mentioned in the declaration, was a negro slave of Major Taliaferro, who belonged to the army of the United States; and in that year he took her to Fort Snelling, already mentioned, and kept her there as a slave until the year 1836, and then sold and delivered her to Dr. Emerson, who held her in slavery, at Fort Snelling, until the year 1838. That in the year 1836, the plaintiff and Harriet were married, at Fort Snelling, with the consent of their master. The two children, Eliza and Lizzie, are the fruit of this marriage. The first is about fourteen years of age, and was born on board the steamboat Gipsey, north of the State of Missouri, and upon the Mississippi river; the other, about seven years of age, was born in the State of Missouri, at the military post called Jefferson Barracks. In 1838, Dr. Emerson removed the plaintiff, Harriet, and their daughter Eliza, from Fort Snelling to the State of Missouri, where they have ever since resided. And that, before the commencement of this suit, they were sold by the Doctor to Sandford, the defendant, who has claimed and held them as slaves ever since. The agreed case also states that the plaintiff brought a suit for his freedom, in the Circuit Court of the State of Missouri, on which a judgment was rendered in his favor; but that, on a writ of error from the Supreme Court of the State, the judgment of the court below was reversed, and the cause remanded to the circuit for a new trial. On closing the testimony in the court below, the counsel for the plaintiff prayed the court to instruct the jury, upon the agreed state of facts, that they ought to find for the plaintiff; when the court refused, and instructed them that, upon the facts, the law was with the defendant. With respect to the plea in abatement, which went to the citizenship of the plaintiff, and his competency to bring a suit in the Federal courts, the common-law rule of pleading is, that upon a judgment against the plea on demurrer, and that the defendant answer over, and the defendant submits to the judgment, and pleads over to the merits, the plea in abatement is deemed to be waived, and is not afterwards to be regarded as a part of the record in deciding upon the rights of the parties. There is some question, however, whether this rule of pleading applies to the peculiar system and jurisdiction of the Federal courts. As, in these courts, if the facts appearing on the record show that the Circuit Court had no jurisdiction, its judgment will be reversed in the appellate court for that cause, and the case remanded with directions to be dismissed. In the view we have taken of the case, it will not be necessary to pass upon this question, and we shall therefore proceed at once to an examination of the case upon its merits. The question upon the merits, in general terms, is, whether or not the removal of the plaintiff, who was a slave, with his master, from the State of Missouri to the State of Illinois, with a view to a temporary residence, and after such residence and return to the slave State, such residence in the free State works an emancipation. As appears from an agreed statement of facts, this question has been before the highest court of the State of Missouri, and a judgment rendered that this residence in the free State has no such effect; but, on the contrary, that his original condition continued unchanged. The court below, the Circuit Court of the United States for Missouri, in which this suit was afterwards brought, followed the decision of the State court, and rendered a like judgment against the plaintiff. The argument against these decisions is, that the laws of Illinois, forbidding slavery within her territory, had the effect to set the slave free while residing in that State, and to impress upon him the condition and status of a freeman; and that, by force of these laws, this status and condition accompanied him on his return to the slave State, and of consequence he could not be there held as a slave. This question has been examined in the courts of several of the slaveholding States, and different opinions expressed and conclusions arrived at. We shall hereafter refer to some of them, and to the principles upon which they are founded. Our opinion is, that the question is one which belongs to each State to decide for itself, either by its Legislature or courts of justice; and hence, in respect to the case before us, to the State of Missouri--a question exclusively of Missouri law, and which, when determined by that State, it is the duty of the Federal courts to follow it. In other words, except in cases where the power is restrained by the Constitution of the United States, the law of the State is supreme over the subject of slavery within its jurisdiction. As a practical illustration of the principle, we may refer to the legislation of the free States in abolishing slavery, and prohibiting its introduction into their territories. Confessedly, except as restrained by the Federal Constitution, they exercised, and rightfully, complete and absolute power over the subject. Upon what principle, then, can it be denied to the State of Missouri? The power flows from the sovereign character of the States of this Union; sovereign, not merely as respects the Federal Government--except as they have consented to its limitation--but sovereign as respects each other. Whether, therefore, the State of Missouri will recognise or give effect to the laws of Illinois within her territories on the subject of slavery, is a question for her to determine. Nor is there any constitutional power in this Government that can rightfully control her. Every State or nation possesses an exclusive sovereignty and jurisdiction within her own territory; and, her laws affect and bind all property and persons residing within it. It may regulate the manner and circumstances under which property is held, and the condition, capacity, and state, of all persons therein; and, also, the remedy and modes of administering justice. And it is equally true, that no State or nation can affect or bind property out of its territory, or persons not residing within it. No State, therefore, can enact laws to operate beyond its own dominions, and, if it attempts to do so, it may be lawfully refused obedience. Such laws can have no inherent authority extra-territorially. This is the necessary result of the independence of distinct and separate sovereignties. Now, it follows from these principles, that whatever force or effect the laws of one State or nation may have in the territories of another, must depend solely upon the laws and municipal regulations of the latter, upon its own jurisprudence and polity, and upon its own express or tacit consent. Judge Story observes, in his Conflict of Laws, (p. 24,) "that a State may prohibit the operation of all foreign laws, and the rights growing out of them, within its territories." "And that when its code speaks positively on the subject, it must be obeyed by all persons who are within reach of its sovereignty; when its customary unwritten or common law speaks directly on the subject, it is equally to be obeyed." Nations, from convenience and comity, and from mutual interest, and a sort of moral necessity to do justice, recognise and administer the laws of other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her territories, each nation judges for itself; and is never bound, even upon the ground of comity, to recognise them, if prejudicial to her own interests. The recognition is purely from comity, and not from any absolute or paramount obligation. Judge Story again observes, (398,) "that the true foundation and extent of the obligation of the laws of one nation within another is the voluntary consent of the latter, and is inadmissible when they are contrary to its known interests." And he adds, "in the silence of any positive rule affirming or denying or restraining the operation of the foreign laws, courts of justice presume the tacit adoption of them by their own Government, unless they are repugnant to its policy or prejudicial to its interests." (See also 2 Kent Com., p. 457; 13 Peters, 519, 589.) These principles fully establish, that it belongs to the sovereign State of Missouri to determine by her laws the question of slavery within her jurisdiction, subject only to such limitations as may be found in the Federal Constitution; and, further, that the laws of other States of the Confederacy, whether enacted by their Legislatures or expounded by their courts, can have no operation within her territory, or affect rights growing out of her own laws on the subject. This is the necessary result of the independent and sovereign character of the State. The principle is not peculiar to the State of Missouri, but is equally applicable to each State belonging to the Confederacy. The laws of each have no extra-territorial operation within the jurisdiction of another, except such as may be voluntarily conceded by her laws or courts of justice. To the extent of such concession upon the rule of comity of nations, the foreign law may operate, as it then becomes a part of the municipal law of the State. When determined that the foreign law shall have effect, the municipal law of the State retires, and gives place to the foreign law. In view of these principles, let us examine a little more closely the doctrine of those who maintain that the law of Missouri is not to govern the status and condition of the plaintiff. They insist that the removal and temporary residence with his master in Illinois, where slavery is inhibited, had the effect to set him free, and that the same effect is to be given to the law of Illinois, within the State of Missouri, after his return. Why was he set free in Illinois? Because the law of Missouri, under which he was held as a slave, had no operation by its own force extra-territorially; and the State of Illinois refused to recognise its effect within her limits, upon principles of comity, as a state of slavery was inconsistent with her laws, and contrary to her policy. But, how is the case different on the return of the plaintiff to the State of Missouri? Is she bound to recognise and enforce the law of Illinois? For, unless she is, the status and condition of the slave upon his return remains the same as originally existed. Has the law of Illinois any greater force within the jurisdiction of Missouri, than the laws of the latter within that of the former? Certainly not. They stand upon an equal footing. Neither has any force extra-territorially, except what may be voluntarily conceded to them. It has been supposed, by the counsel for the plaintiff, that a rule laid down by Huberus had some bearing upon this question. Huberus observes that "personal qualities, impressed by the laws of any place, surround and accompany the person wherever he goes, with this effect: that in every place he enjoys and is subject to the same law which other persons of his class elsewhere enjoy or are subject to." (De Confl. Leg., lib. 1, tit. 3, sec. 12; 4 Dallas, 375 n.; 1 Story Con. Laws, pp. 59, 60.) The application sought to be given to the rule was this: that as Dred Scott was free while residing in the State of Illinois, by the laws of that State, on his return to the State of Missouri he carried with him the personal qualities of freedom, and that the same effect must be given to his status there as in the former State. But the difficulty in the case is in the total misapplication of the rule. These personal qualities, to which Huberus refers, are those impressed upon the individual by the law of the domicil; it is this that the author claims should be permitted to accompany the person into whatever country he might go, and should supersede the law of the place where he had taken up a temporary residence. Now, as the domicil of Scott was in the State of Missouri, where he was a slave, and from whence he was taken by his master into Illinois for a temporary residence, according to the doctrine of Huberus, the law of his domicil would have accompanied him, and during his residence there he would remain in the same condition as in the State of Missouri. In order to have given effect to the rule, as claimed in the argument, it should have been first shown that a domicil had been acquired in the free State, which cannot be pretended upon the agreed facts in the case. But the true answer to the doctrine of Huberus is, that the rule, in any aspect in which it may be viewed, has no bearing upon either side of the question before us, even if conceded to the extent laid down by the author; for he admits that foreign Governments give effect to these laws of the domicil no further than they are consistent with their own laws, and not prejudicial to their own subjects; in other words, their force and effect depend upon the law of comity of the foreign Government. We should add, also, that this general rule of Huberus, referred to, has not been admitted in the practice of nations, nor is it sanctioned by the most approved jurists of international law. (Story Con., sec. 91, 96, 103, 104; 2 Kent. Com., p. 457, 458; 1 Burge Con. Laws, pp. 12, 127.) We come now to the decision of this court in the case of Strader et al. _v._ Graham, (10 How., p. 2.) The case came up from the Court of Appeals, in the State of Kentucky. The question in the case was, whether certain slaves of Graham, a resident of Kentucky, who had been employed temporarily at several places in the State of Ohio, with their master's consent, and had returned to Kentucky into his service, had thereby become entitled to their freedom. The Court of Appeals held that they had not. The case was brought to this court under the twenty-fifth section of the judiciary act. This court held that it had no jurisdiction, for the reason, the question was one that belonged exclusively to the State of Kentucky. The Chief Justice, in delivering the opinion of the court, observed that "every State has an undoubted right to determine the status or domestic and social condition of the persons domiciled within its territory, except in so far as the powers of the States in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States, he observes, that can in any degree control the law of Kentucky upon this subject. And the condition of the negroes, therefore, as to freedom or slavery, after their return, depended altogether upon the laws of that State, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine, for herself, whether their employment in another State should or should not make them free on their return." It has been supposed, in the argument on the part of the plaintiff, that the eighth section of the act of Congress passed March 6, 1820, (3 St. at Large, p. 544,) which prohibited slavery north of thirty-six degrees thirty minutes, within which the plaintiff and his wife temporarily resided at Fort Snelling, possessed some superior virtue and effect, extra-territorially, and within the State of Missouri, beyond that of the laws of Illinois, or those of Ohio in the case of Strader et al. _v._ Graham. A similar ground was taken and urged upon the court in the case just mentioned, under the ordinance of 1787, which was enacted during the time of the Confederation, and re-enacted by Congress after the adoption of the Constitution, with some amendments adapting it to the new Government. (1 St. at Large, p. 50.) In answer to this ground, the Chief Justice, in delivering the opinion of the court, observed: "The argument assumes that the six articles which that ordinance declares to be perpetual, are still in force in the States since formed within the territory, and admitted into the Union. If this proposition could be maintained, it would not alter the question; for the regulations of Congress, under the old Confederation or the present Constitution, for the government of a particular Territory, could have no force beyond its limits. It certainly could not restrict the power of the States, within their respective territories, nor in any manner interfere with their laws and institutions, nor give this court control over them. "The ordinance in question, he observes, if still in force, could have no more operation than the laws of Ohio in the State of Kentucky, and could not influence the decision upon the rights of the master or the slaves in that State." This view, thus authoritatively declared, furnishes a conclusive answer to the distinction attempted to be set up between the extra-territorial effect of a State law and the act of Congress in question. It must be admitted that Congress possesses no power to regulate or abolish slavery within the States; and that, if this act had attempted any such legislation, it would have been a nullity. And yet the argument here, if there be any force in it, leads to the result, that effect may be given to such legislation; for it is only by giving the act of Congress operation within the State of Missouri, that it can have any effect upon the question between the parties. Having no such effect directly, it will be difficult to maintain, upon any consistent reasoning, that it can be made to operate indirectly upon the subject. The argument, we think, in any aspect in which it may be viewed, is utterly destitute of support upon any principles of constitutional law, as, according to that, Congress has no power whatever over the subject of slavery within the State; and is also subversive of the established doctrine of international jurisprudence, as, according to that, it is an axiom that the laws of one Government have no force within the limits of another, or extra-territorially, except from the consent of the latter. It is perhaps not unfit to notice, in this connection, that many of the most eminent statesmen and jurists of the country entertain the opinion that this provision of the act of Congress, even within the territory to which it relates, was not authorized by any power under the Constitution. The doctrine here contended for, not only upholds its validity in the territory, but claims for it effect beyond and within the limits of a sovereign State--an effect, as insisted, that displaces the laws of the State, and substitutes its own provisions in their place. The consequences of any such construction are apparent. If Congress possesses the power, under the Constitution, to abolish slavery in a Territory, it must necessarily possess the like power to establish it. It cannot be a one-sided power, as may suit the convenience or particular views of the advocates. It is a power, if it exists at all, over the whole subject; and then, upon the process of reasoning which seeks to extend its influence beyond the Territory, and within the limits of a State, if Congress should establish, instead of abolish, slavery, we do not see but that, if a slave should be removed from the Territory into a free State, his status would accompany him, and continue, notwithstanding its laws against slavery. The laws of the free State, according to the argument, would be displaced, and the act of Congress, in its effect, be substituted in their place. We do not see how this conclusion could be avoided, if the construction against which we are contending should prevail. We are satisfied, however, it is unsound, and that the true answer to it is, that even conceding, for the purposes of the argument, that this provision of the act of Congress is valid within the Territory for which it was enacted, it can have no operation or effect beyond its limits, or within the jurisdiction of a State. It can neither displace its laws, nor change the status or condition of its inhabitants. Our conclusion, therefore, is, upon this branch of the case, that the question involved is one depending solely upon the law of Missouri, and that the Federal court sitting in the State, and trying the case before us, was bound to follow it. The remaining question for consideration is, What is the law of the State of Missouri on this subject? And it would be a sufficient answer to refer to the judgment of the highest court of the State in the very case, were it not due to that tribunal to state somewhat at large the course of decision and the principles involved, on account of some diversity of opinion in the cases. As we have already stated, this case was originally brought in the Circuit Court of the State, which resulted in a judgment for the plaintiff. The case was carried up to the Supreme Court for revision. That court reversed the judgment below, and remanded the cause to the circuit, for a new trial. In that state of the proceeding, a new suit was brought by the plaintiff in the Circuit Court of the United States, and tried upon the issues and agreed case before us, and a verdict and judgment for the defendant, that court following the decision of the Supreme Court of the State. The judgment of the Supreme Court is reported in the 15 Misso. R., p. 576. The court placed the decision upon the temporary residence of the master with the slaves in the State and Territory to which they removed, and their return to the slave State; and upon the principles of international law, that foreign laws have no extra-territorial force, except such as the State within which they are sought to be enforced may see fit to extend to them, upon the doctrine of comity of nations. This is the substance of the grounds of the decision. The same question has been twice before that court since, and the same judgment given, (15 Misso. R., 595; 17 Ib., 434.) It must be admitted, therefore, as the settled law of the State, and, according to the decision in the case of Strader et al. _v._ Graham, is conclusive of the case in this court. It is said, however, that the previous cases and course of decision in the State of Missouri on this subject were different, and that the courts had held the slave to be free on his return from a temporary residence in the free State. We do not see, were this to be admitted, that the circumstance would show that the settled course of decision, at the time this case was tried in the court below, was not to be considered the law of the State. Certainly, it must be, unless the first decision of a principle of law by a State court is to be permanent and irrevocable. The idea seems to be, that the courts of a State are not to change their opinions, or, if they do, the first decision is to be regarded by this court as the law of the State. It is certain, if this be so, in the case before us, it is an exception to the rule governing this court in all other cases. But what court has not changed its opinions? What judge has not changed his? Waiving, however, this view, and turning to the decisions of the courts of Missouri, it will be found that there is no discrepancy between the earlier and the present cases upon this subject. There are some eight of them reported previous to the decision in the case before us, which was decided in 1852. The last of the earlier cases was decided in 1836. In each one of these, with two exceptions, the master or mistress removed into the free State with the slave, with a view to a permanent residence--in other words, to make that his or her domicil. And in several of the cases, this removal and permanent residence were relied on, as the ground of the decision in favor of the plaintiff. All these cases, therefore, are not necessarily in conflict with the decision in the case before us, but consistent with it. In one of the two excepted cases, the master had hired the slave in the State of Illinois from 1817 to 1825. In the other, the master was an officer in the army, and removed with his slave to the military post of Fort Snelling, and at Prairie du Chien, in Michigan, temporarily, while acting under the orders of his Government. It is conceded the decision in this case was departed from in the case before us, and in those that have followed it. But it is to be observed that these subsequent cases are in conformity with those in all the slave States bordering on the free--in Kentucky, (2 Marsh., 476; 5 B. Munroe, 176; 9 Ib., 565)--in Virginia, (1 Rand., 15; 1 Leigh, 172; 10 Grattan, 495)--in Maryland, (4 Harris and McHenry, 295, 322, 325.) In conformity, also, with the law of England on this subject, Ex parte Grace, (2 Hagg. Adm., R., 94,) and with the opinions of the most eminent jurists of the country. (Story's Confl., 396 a; 2 Kent Com., 258 n.; 18 Pick., 193, Chief Justice Shaw. See Corresp. between Lord Stowell and Judge Story, 1 vol. Life of Story, p. 552, 558.) Lord Stowell, in communicating his opinion in the case of the slave Grace to Judge Story, states, in his letter, what the question was before him, namely: "Whether the emancipation of a slave brought to England insured a complete emancipation to him on his return to his own country, or whether it only operated as a suspension of slavery in England, and his original character devolved on him again upon his return." He observed, "the question had never been examined since an end was put to slavery fifty years ago," having reference to the decision of Lord Mansfield in the case of Somersett; but the practice, he observed, "has regularly been, that on his return to his own country, the slave resumed his original character of slave." And so Lord Stowell held in the case. Judge Story, in his letter in reply, observes: "I have read with great attention your judgment in the slave case, &c. Upon the fullest consideration which I have been able to give the subject, I entirely concur in your views. If I had been called upon to pronounce a judgment in a like case, I should have certainly arrived at the same result." Again he observes: "In my native State, (Massachusetts,) the state of slavery is not recognised as legal; and yet, if a slave should come hither, and afterwards return to his own home, we should certainly think that the local law attached upon him, and that his servile character would be redintegrated." We may remark, in this connection, that the case before the Maryland court, already referred to, and which was decided in 1799, presented the same question as that before Lord Stowell, and received a similar decision. This was nearly thirty years before the decision in that case, which was in 1828. The Court of Appeals observed, in deciding the Maryland case, that "however the laws of Great Britain in such instances, operating upon such persons there, might interfere so as to prevent the exercise of certain acts by the masters, not permitted, as in the case of Somersett, yet, upon the bringing Ann Joice into this State, (then the province of Maryland,) the relation of master and slave continued in its extent, as authorized by the laws of this State." And Luther Martin, one of the counsel in that case, stated, on the argument, that the question had been previously decided the same way in the case of slaves returning from a residence in Pennsylvania, where they had become free under her laws. The State of Louisiana, whose courts had gone further in holding the slave free on his return from a residence in a free State than the courts of her sister States, has settled the law, by an act of her Legislature, in conformity with the law of the court of Missouri in the case before us. (Sess. Law, 1846.) The case before Lord Stowell presented much stronger features for giving effect to the law of England in the case of the slave Grace than exists in the cases that have arisen in this country, for in that case the slave returned to a colony of England over which the Imperial Government exercised supreme authority. Yet, on the return of the slave to the colony, from a temporary residence in England, he held that the original condition of the slave attached. The question presented in cases arising here is as to the effect and operation to be given to the laws of a foreign State, on the return of the slave within an independent sovereignty. Upon the whole, it must be admitted that the current of authority, both in England and in this country, is in accordance with the law as declared by the courts of Missouri in the case before us, and we think the court below was not only right, but bound to follow it. Some question has been made as to the character of the residence in this case in the free State. But we regard the facts as set forth in the agreed case as decisive. The removal of Dr. Emerson from Missouri to the military posts was in the discharge of his duties as surgeon in the army, and under the orders of his Government. He was liable at any moment to be recalled, as he was in 1838, and ordered to another post. The same is also true as it respects Major Taliaferro. In such a case, the officer goes to his post for a temporary purpose, to remain there for an uncertain time, and not for the purpose of fixing his permanent abode. The question we think too plain to require argument. The case of the Attorney General _v._ Napier, (6 Welsh, Hurtst. and Gordon Exch. Rep., 217,) illustrates and applies the principle in the case of an officer of the English army. A question has been alluded to, on the argument, namely: the right of the master with his slave of transit into or through a free State, on business or commercial pursuits, or in the exercise of a Federal right, or the discharge of a Federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles from the one in hand, and turns upon the rights and privileges secured to a common citizen of the republic under the Constitution of the United States. When that question arises, we shall be prepared to decide it. Our conclusion is, that the judgment of the court below should be affirmed. * * * * * Mr. Justice GRIER. I concur in the opinion delivered by Mr. Justice Nelson on the questions discussed by him. I also concur with the opinion of the court as delivered by the Chief Justice, that the act of Congress of 6th March, 1820, is unconstitutional and void; and that, assuming the facts as stated in the opinion, the plaintiff cannot sue as a citizen of Missouri in the courts of the United States. But, that the record shows a prima facie case of jurisdiction, requiring the court to decide all the questions properly arising in it; and as the decision of the pleas in bar shows that the plaintiff is a slave, and therefore not entitled to sue in a court of the United States, the form of the judgment is of little importance; for, whether the judgment be affirmed or dismissed for want of jurisdiction, it is justified by the decision of the court, and is the same in effect between the parties to the suit. * * * * * Mr. Justice DANIEL. It may with truth be affirmed, that since the establishment of the several communities now constituting the States of this Confederacy, there never has been submitted to any tribunal within its limits questions surpassing in importance those now claiming the consideration of this court. Indeed it is difficult to imagine, in connection with the systems of polity peculiar to the United States, a conjuncture of graver import than that must be, within which it is aimed to comprise, and to control, not only the faculties and practical operation appropriate to the American Confederacy as such, but also the rights and powers of its separate and independent members, with reference alike to their internal and domestic authority and interests, and the relations they sustain to their confederates. To my mind it is evident, that nothing less than the ambitious and far-reaching pretension to compass these objects of vital concern, is either directly essayed or necessarily implied in the positions attempted in the argument for the plaintiff in error. How far these positions have any foundation in the nature of the rights and relations of separate, equal, and independent Governments, or in the provisions of our own Federal compact, or the laws enacted under and in pursuance of the authority of that compact, will be presently investigated. In order correctly to comprehend the tendency and force of those positions, it is proper here succinctly to advert to the facts upon which the questions of law propounded in the argument have arisen. This was an action of trespass _vi et armis_, instituted in the Circuit Court of the United States for the district of Missouri, in the name of the plaintiff in error, _a negro_ held as a slave, for the recovery of freedom for himself, his wife, and two children, _also negroes_. To the declaration in this case the defendant below, who is also the defendant in error, pleaded in abatement that the court could not take cognizance of the cause, because the plaintiff was not _a citizen_ of the State of Missouri, as averred in the declaration, but was a _negro of African descent_, and that his ancestors were of pure African blood, and were brought into this country and sold as _negro slaves_; and hence it followed, from the second section of the third article of the Constitution, which creates the judicial power of the United States, with respect to controversies between citizens of different States, that the Circuit Court could not take cognizance of the action. To this plea in abatement, a demurrer having been interposed on behalf of the plaintiff, it was sustained by the court. After the decision sustaining the demurrer, the defendant, in pursuance of a previous agreement between counsel, and with the leave of the court, pleaded in bar of the action: _1st, not guilty; 2dly, that the plaintiff was a negro slave, the lawful property of the defendant, and as such the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do; 3dly, that with respect to the wife and daughters of the plaintiff, in the second and third counts of the declaration mentioned, the defendant had, as to them, only acted at the same manner, and in virtue of the same legal right_. Issues having been joined upon the above pleas in bar, the following statement, comprising all the evidence in the cause, was agreed upon and signed by the counsel of the respective parties, viz: "In the year 1834, the plaintiff was a negro slave belonging to Doctor Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838. "In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson, hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838. "In the year 1836, the plaintiff and said Harriet, at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at a military post called Jefferson barracks. "In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided. "Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves. "At the times mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times. "Further proof may be given on the trial for either party. "R.M. FIELD, _for Plaintiff_. "H.A. GARLAND, _for Defendant_. "It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court, the judgment below was reversed, and the cause remanded to the Circuit Court, where it has been continued to await the decision of this case. "FIELD, _for Plaintiff_. "GARLAND, _for Defendant_." Upon the aforegoing agreed facts, the plaintiff prayed the court to instruct the jury that they ought to find for the plaintiff, and upon the refusal of the instruction thus prayed for, the plaintiff excepted to the court's opinion. The court then, upon the prayer of the defendant, instructed the jury, that upon the facts of this case agreed as above, the law was with the defendant. To this opinion, also, the plaintiff's counsel excepted, as he did to the opinion of the court denying to the plaintiff a new trial after the verdict of the jury in favor of the defendant. The question first in order presented by the record in this cause, is that which arises upon the plea in abatement, and the demurrer to that plea; and upon this question it is my opinion that the demurrer should have been overruled, and the plea sustained. On behalf of the plaintiff it has been urged, that by the pleas interposed in bar of a recovery in the court below, (which pleas both in fact and in law are essentially the same with the objections averred in abatement,) the defence in abatement has been displaced or waived; that it could therefore no longer be relied on in the Circuit Court, and cannot claim the consideration of this court in reviewing this cause. This position is regarded as wholly untenable. On the contrary, it would seem to follow conclusively from the peculiar character of the courts of the United States, as organized under the Constitution and the statutes, and as defined by numerous and unvarying adjudications from this bench, that there is not one of those courts whose jurisdiction and powers can be deduced from mere custom or tradition; not one, whose jurisdiction and powers must not be traced palpably to, and invested exclusively by, the Constitution and statutes of the United States; not one that is not bound, therefore, at all times, and at all stages of its proceedings, to look to and to regard the special and declared extent and bounds of its commission and authority. There is no such tribunal of the United States as a court of _general jurisdiction_, in the sense in which that phrase is applied to the superior courts under the common law; and even with respect to the courts existing under that system, it is a well-settled principle, that _consent_ can never give jurisdiction. The principles above stated, and the consequences regularly deducible from them, have, as already remarked, been repeatedly and unvaryingly propounded from this bench. Beginning with the earliest decisions of this court, we have the cases of Bingham _v._ Cabot et al., (3 Dallas, 382;) Turner _v._ Eurille, (4 Dallas, 7;) Abercrombie _v._ Dupuis et al., (1 Cranch, 343;) Wood _v._ Wagnon, (2 Cranch, 9;) The United States _v._ The brig Union et al., (4 Cranch, 216;) Sullivan _v._ The Fulton Steamboat Company, (6 Wheaton, 450;) Mollan et al. _v._ Torrence, (9 Wheaton, 537;) Brown _v._ Keene, (8 Peters, 112,) and Jackson _v._ Ashton, (8 Peters, 148;) ruling, in uniform and unbroken current, the doctrine that it is essential to the jurisdiction of the courts of the United States, that the facts upon which it is founded should appear upon the record. Nay, to such an extent and so inflexibly has this requisite to the jurisdiction been enforced, that in the case of Capron _v._ Van Noorden, (2 Cranch, 126,) it is declared, that the plaintiff in this court may assign for error his own omission in the pleadings in the court below, where they go to the jurisdiction. This doctrine has been, if possible, more strikingly illustrated in a later decision, the case of The State of Rhode Island _v._ The State of Massachusetts, in the 12th of Peters. In this case, on page 718 of the volume, this court, with reference to a motion to dismiss the cause _for want of jurisdiction_, have said: "_However late this objection has been made, or may be made, in any cause in an inferior or appellate court of the United States_, it must be considered and decided before any court can move one farther step in the cause, as any movement is necessarily to exercise the jurisdiction. Jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to a suit; to adjudicate or exercise any judicial power over them. The question is, whether on the case before the court their action is judicial or extra-judicial; with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. A motion to dismiss a cause pending in the courts of the United States, is not analogous to a plea to the jurisdiction of a court of common law or equity in England; there, the superior courts have a general jurisdiction over all persons within the realm, and all causes of action between them. It depends on the subject-matter, whether the jurisdiction shall be exercised by a court of law or equity; but that court to which it appropriately belongs can act judicially upon the party and the subject of the suit, unless it shall be made apparent to the court that the judicial determination of the case has been withdrawn from the court of general jurisdiction to an inferior and limited one. It is a necessary presumption that the court of general jurisdiction can act upon the given case, when nothing to the contrary appears; hence has arisen the rule that the party claiming an exemption from its process must set out the reason by a special plea in abatement, and show that some inferior court of law or equity has the exclusive cognizance of the case, otherwise the superior court must proceed in virtue of its general jurisdiction. A motion to dismiss, therefore, cannot be entertained, as it does not disclose a case of exception; and if a plea in abatement is put in, it must not only make out the exception, but point to the particular court to which the case belongs. There are other classes of cases where the objection to the jurisdiction is of a different nature, as on a bill in chancery, that the subject-matter is cognizable only by the King in Council, or that the parties defendant cannot be brought before any municipal court on account of their sovereign character or the nature of the controversy; or to the very common cases which present the question, whether the cause belong to a court of law or equity. To such cases, a plea in abatement would not be applicable, because the plaintiff could not sue in an inferior court. The objection goes to a denial of any jurisdiction of a municipal court in the one class of cases, and to the jurisdiction of any court of equity or of law in the other, on which last the court decides according to its discretion. "An objection to jurisdiction on the ground of exemption from the process of the court in which the suit is brought, or the manner in which a defendant is brought into it, is waived by appearance and pleading to issue; but when the objection goes to the power of the court over the parties or the subject-matter, the defendant need not, for he cannot, give the plaintiff a better writ. Where an inferior court can have no jurisdiction of a case of law or equity, the ground of objection is not taken by plea in abatement, as an exception of the given case from the otherwise general jurisdiction of the court; appearance does not cure the defect of judicial power, and it may be relied on by plea, answer, demurrer, _or at the trial or hearing_. As a denial of jurisdiction over the subject-matter of a suit between parties within the realm, over which and whom the court has power to act, cannot be successful in an English court of general jurisdiction, a motion like the present could not be sustained consistently with the principles of its constitution. _But as this court is one of limited and special original jurisdiction_, its action must be confined to the particular cases, controversies, and parties, over which the Constitution and laws have authorized it to act; any proceeding without the limits prescribed is _coram non judice_, and its action a nullity. And whether the want or excess of power is objected by a party, or is apparent to the court, it must surcease its action or proceed extra-judicially." In the constructing of pleadings either in abatement or in bar, every fact or position constituting a portion of the public law, or of known or general history, is necessarily implied. Such fact or position need not be specially averred and set forth; it is what the world at large and every individual are presumed to know--nay, are bound to know and to be governed by. If, on the other hand, there exist facts or circumstances by which a particular case would be withdrawn or exempted from the influence of public law or necessary historical knowledge, such facts and circumstances form an exception to the general principle, and these must be specially set forth and _established_ by those who would avail themselves of such exception. Now, the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know--that the African negro race never have been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recognised by the inhabitants of other countries anything partaking of the character of nationality, or civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase; as subjects of commerce or traffic; and that the introduction of that race into every section of this country was not as members of civil or political society, but as slaves, as _property_ in the strictest sense of the term. In the plea in abatement, the character or capacity of citizen on the part of the plaintiff is denied; and the causes which show the absence of that character or capacity are set forth by averment. The verity of those causes, according to the settled rules of pleading, being admitted by the demurrer, it only remained for the Circuit Court to decide upon their legal sufficiency to abate the plaintiff's action. And it now becomes the province of this court to determine whether the plaintiff below, (and in error here,) admitted to be a _negro_ of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves--such being his _status_, and such the circumstances surrounding his position--whether he can, by correct legal induction from that _status_ and those circumstances, be clothed with the character and capacities of a citizen of the State of Missouri? It may be assumed as a postulate, that to a slave, as such, there appertains and can appertain no relation, civil or political, with the State or the Government. He is himself strictly _property_, to be used in subserviency to the interests, the convenience, or the will, of his owner; and to suppose, with respect to the former, the existence of any privilege or discretion, or of any obligation to others incompatible with the magisterial rights just defined, would be by implication, if not directly, to deny the relation of master and slave, since none can possess and enjoy, as his own, that which another has a paramount right and power to withhold. Hence it follows, necessarily, that a slave, the _peculium_ or property of a master, and possessing within himself no civil nor political rights or capacities, cannot be a CITIZEN. For who, it may be asked, is a citizen? What do the character and _status_ of citizen import? Without fear of contradiction, it does not import the condition of being private property, the subject of individual power and ownership. Upon a principle of etymology alone, the term _citizen_, as derived from _civitas_, conveys the ideas of connection or identification with the State or Government, and a participation of its functions. But beyond this, there is not, it is believed, to be found, in the theories of writers on Government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political. Thus Vattel, in the preliminary chapter to his Treatise on the Law of Nations, says: "Nations or States are bodies politic; societies of men united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their mutual strength. Such a society has her affairs and her interests; she deliberates and takes resolutions _in common_; thus becoming a moral person, who possesses an understanding and a will peculiar to herself." Again, in the first chapter of the first book of the Treatise just quoted, the same writer, after repeating his definition of a State, proceeds to remark, that, "from the very design that induces a number of men to form a society, which has its common interests and which is to act in concert, it is necessary that there should be established a public authority, to order and direct what is to be done by each, in relation to the end of the association. This political authority is the _sovereignty_." Again this writer remarks: "The authority of _all_ over each member essentially belongs to the body politic or the State." By this same writer it is also said: "The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority; they _equally_ participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights." Again: "I say, to be _of the country_, it is necessary to be born of a person who is a _citizen_; for if he be born there of a foreigner, it will be only the place of his _birth_, and not his _country_. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country." (Vattel, Book 1, cap. 19, p. 101.) From the views here expressed, and they seem to be unexceptionable, it must follow, that with the _slave_, with one devoid of rights or capacities, _civil or political_, there could be no pact; that one thus situated could be no party to, or actor in, the association of those possessing free will, power, discretion. He could form no part of the design, no constituent ingredient or portion of a society based upon _common_, that is, upon _equal_ interests and powers. He could not at the same time be the sovereign and the slave. But it has been insisted, in argument, that the emancipation of a slave, effected either by the direct act and assent of the master, or by causes operating in contravention of his will, produces a change in the _status_ or capacities of the slave, such as will transform him from a mere subject of property, into a being possessing a social, civil, and political equality with a citizen. In other words, will make him a citizen of the State within which he was, previously to his emancipation, a slave. It is difficult to conceive by what magic the mere _surcease_ or renunciation of an interest in a subject of _property_, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties, can create a citizen of that State? Much more emphatically may it be asked, how such a result could be accomplished by means wholly extraneous, and entirely foreign to the Government of the State? The argument thus urged must lead to these extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the analogies of history. The institution of slavery, as it exists and has existed from the period of its introduction into the United States, though more humane and mitigated in character than was the same institution, either under the republic or the empire of Rome, bears, both in its tenure and in the simplicity incident to the mode of its exercise, a closer resemblance to Roman slavery than it does to the condition of _villanage_, as it formerly existed in England. Connected with the latter, there were peculiarities, from custom or positive regulation, which varied it materially from the slavery of the Romans, or from slavery at any period within the United States. But with regard to slavery amongst the Romans, it is by no means true that emancipation, either during the republic or the empire, conferred, by the act itself, or implied, the _status_ or the rights of citizenship. The proud title of Roman citizen, with the immunities and rights incident thereto, and as contradistinguished alike from the condition of conquered subjects or of the lower grades of native domestic residents, was maintained throughout the duration of the republic, and until a late period of the eastern empire, and at last was in _effect_ destroyed less by an elevation of the inferior classes than by the degradation of the free, and the previous possessors of rights and immunities civil and political, to the indiscriminate abasement incident to absolute and simple despotism. By the learned and elegant historian of the Decline and Fall of the Roman Empire, we are told that "In the _decline_ of the Roman empire, the proud distinctions of the republic were gradually abolished; and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the memory of famous ancestors. He delighted to honor with titles and emoluments his generals, magistrates, and senators, and his precarious indulgence communicated some rays of their glory to their wives and children. But in the eye of the law all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was _degraded_ to an obsolete and empty name. The voice of a Roman could no longer enact his laws, or create the annual ministers of his powers; his constitutional rights might have checked the arbitrary will of a master; and the bold adventurer from Germany or Arabia was admitted with equal favor to the civil and military command which the _citizen_ alone had been once entitled to assume over the conquests of his fathers. The first Cæsars had scrupulously guarded the distinction of _ingenuous_ and _servile_ birth, which was decided by the condition of the mother. The slaves who were liberated by a generous master immediately entered into the middle class of _libertini_ or freedmen; but they could never be enfranchised from the duties of obedience and gratitude; whatever were the fruits of their industry, their patron and his family inherited the third part, or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons, but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave, obtained without reserve or delay the station of a citizen; and at length the dignity of an ingenuous birth _was created_ or _supposed_ by the omnipotence of the emperor."[1] [Footnote 1: Vide Gibbons's Decline and Fall of the Roman Empire. London edition of 1825, vol. 3d, chap. 44, p. 183.] The above account of slavery and its modifications will be found in strictest conformity with the Institutes of Justinian. Thus, book 1st, title 3d, it is said: "The first general division of persons in respect to their rights is into freemen and slaves." The same title, sec. 4th: "Slaves are born such, or become so. They are born such of bondwomen; they become so either by _the law of nations_, as by capture, or by the civil law." Section 5th: "In the condition of slaves there is no diversity; but among free persons there are many. Thus some are _ingenui_ or freemen, others _libertini_ or freedmen." Tit. 4th. DE INGENUIS.--"A freeman is one who is born free by being born in matrimony, of parents who both are free, or both freed; or of parents one free and the other freed. But one born of a free mother, although the father be a slave or unknown, is free." Tit. 5th. DE LIBERTINIS.--"Freedmen are those who have been manumitted from just servitude." Section third of the same title states that "freedmen were formerly distinguished by a threefold division." But the emperor proceeds to say: "Our _piety_ leading us to reduce all things into a better state, we have amended our laws, and re-established the ancient usage; for anciently liberty was simple and undivided--that is, was conferred upon the slave as his manumittor possessed it, admitting this single difference, that the person manumitted became only a _freed man_, although his manumittor was a _free_ man." And he further declares: "We have made all freed men in general become citizens of Rome, regarding neither the age of the manumitted, nor the manumittor, nor the ancient forms of manumission. We have also introduced many new methods by which _slaves_ may become Roman citizens." By the references above given it is shown, from the nature and objects of civil and political associations, and upon the direct authority of history, that citizenship was not conferred by the simple fact of emancipation, but that such a result was deduced therefrom in violation of the fundamental principles of free political association; by the exertion of despotic will to establish, under a false and misapplied denomination, one equal and universal slavery; and to effect this result required the exertions of absolute power--of a power both in theory and practice, being in its most plenary acceptation the SOVEREIGNTY, THE STATE ITSELF--it could not be produced by a less or inferior authority, much less by the will or the act of one who, with reference to civil and political rights, was himself a _slave_. The master might abdicate or abandon his interest or ownership in his property, but his act would be a mere abandonment. It seems to involve an absurdity to impute to it the investiture of rights which the sovereignty alone had power to impart. There is not perhaps a community in which slavery is recognised, in which the power of emancipation and the modes of its exercise are not regulated by law--that is, by the sovereign authority; and none can fail to comprehend the necessity for such regulation, for the preservation of order, and even of political and social existence. By the argument for the plaintiff in error, a power equally despotic is vested in every member of the association, and the most obscure or unworthy individual it comprises may arbitrarily invade and derange its most deliberate and solemn ordinances. At assumptions anomalous as these, so fraught with mischief and ruin, the mind at once is revolted, and goes directly to the conclusions, that to change or to abolish a fundamental principle of the society, must be the act of the society itself--of the _sovereignty_; and that none other can admit to a participation of that high attribute. It may further expose the character of the argument urged for the plaintiff, to point out some of the revolting consequences which it would authorize. If that argument possesses any integrity, it asserts the power in any citizen, or _quasi_ citizen, or a resident foreigner of any one of the States, from a motive either of corruption or caprice, not only to infract the inherent and necessary authority of such State, but also materially to interfere with the organization of the Federal Government, and with the authority of the separate and independent States. He may emancipate his negro slave, by which process he first transforms that slave into a citizen of his own State; he may next, under color of article fourth, section second, of the Constitution of the United States, obtrude him, and on terms of civil and political equality, upon any and every State in this Union, in defiance of all regulations of necessity or policy, ordained by those States for their internal happiness or safety. Nay, more: this manumitted slave may, by a proceeding springing from the will or act of his master alone, be mixed up with the institutions of the Federal Government, to which he is not a party, and in opposition to the laws of that Government which, in authorizing the extension by naturalization of the rights and immunities of citizens of the United States to those not originally parties to the Federal compact, have restricted that boon to _free white aliens alone_. If the rights and immunities connected with or practiced under the institutions of the United States can by any indirection be claimed or deduced from sources or modes other than the Constitution and laws of the United States, it follows that the power of naturalization vested in Congress is not exclusive--that it has _in effect_ no existence, but is repealed or abrogated. But it has been strangely contended that the jurisdiction of the Circuit Court might be maintained upon the ground that the plaintiff was a _resident_ of Missouri, and that, for the purpose of vesting the court with jurisdiction over the parties, _residence_ within the State was sufficient. The first, and to my mind a conclusive reply to this singular argument is presented in the fact, that the language of the Constitution restricts the jurisdiction of the courts to cases in which the parties shall be _citizens_, and is entirely silent with respect to residence. A second answer to this strange and latitudinous notion is, that it so far stultifies the sages by whom the Constitution was framed, as to impute to them ignorance of the material distinction existing between _citizenship_ and mere _residence_ or _domicil_, and of the well-known facts, that a person confessedly an _alien_ may be permitted to reside in a country in which he can possess no civil or political rights, or of which he is neither a citizen nor subject; and that for certain purposes a man may have a _domicil_ in different countries, in no one of which he is an actual personal resident. The correct conclusions upon the question here considered would seem to be these: That in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union as _property_ merely, and as such was not and could not be a party or an actor, much less a _peer_ in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignty--the State--exerted to that end, either in the form of legislation, or in some other mode of operation. It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That so far as rights and immunities appertaining to citizens have been defined and secured by the Constitution and laws of the United States, the African race is not and never was recognised either by the language or purposes of the former; and it has been expressly excluded by every act of Congress providing for the creation of citizens by _naturalization_, these laws, as has already been remarked, being restricted to _free white aliens_ exclusively. But it is evident that, after the formation of the Federal Government by the adoption of the Constitution, the highest exertion of State power would be incompetent to bestow a character or status created by the Constitution, or conferred in virtue of its authority only. Upon those, therefore, who were not originally parties to the Federal compact, or who are not admitted and adopted as parties thereto, in the mode prescribed by its paramount authority, no State could have power to bestow the character or the rights and privileges exclusively reserved by the States for the action of the Federal Government by that compact. The States, in the exercise of their political power, might, with reference to their peculiar Government and jurisdiction, guaranty the rights of person and property, and the enjoyment of civil and political privileges, to those whom they should be disposed to make the objects of their bounty; but they could not reclaim or exert the powers which they had vested exclusively in the Government of the United States. They could not add to or change in any respect the class of persons to whom alone the character of citizen of the United States appertained at the time of the adoption of the Federal Constitution. They could not create citizens of the United States by any direct or indirect proceeding. According to the view taken of the law, as applicable to the demurrer to the plea in abatement in this cause, the questions subsequently raised upon the several pleas in bar might be passed by, as requiring neither a particular examination, nor an adjudication directly upon them. But as these questions are intrinsically of primary interest and magnitude, and have been elaborately discussed in argument, and as with respect to them the opinions of a majority of the court, including my own, are perfectly coincident, to me it seems proper that they should here be fully considered, and, so far as it is practicable for this court to accomplish such an end, finally put to rest. The questions then to be considered upon the several pleas in bar, and upon the agreed statement of facts between the counsel, are: 1st. Whether the admitted master and owner of the plaintiff, holding him as his slave in the State of Missouri, and in conformity with his rights guarantied to him by the laws of Missouri then and still in force, by carrying with him for his own benefit and accommodation, and as his own slave, the person of the plaintiff into the State of Illinois, within which State slavery had been prohibited by the Constitution thereof, and by retaining the plaintiff during the commorancy of the master within the State of Illinois, had, upon his return with his slave into the State of Missouri, forfeited his rights as master, by reason of any supposed operation of the prohibitory provision in the Constitution of Illinois, beyond the proper territorial jurisdiction of the latter State? 2d. Whether a similar removal of the plaintiff by his master from the State of Missouri, and his retention in service at a point included within no State, but situated north of thirty-six degrees thirty minutes of north latitude, worked a forfeiture of the right of property of the master, and the manumission of the plaintiff? In considering the first of these questions, the acts or declarations of the master, as expressive of his purpose to emancipate, may be thrown out of view, since none will deny the right of the owner to relinquish his interest in any subject of property, at any time or in any place. The inquiry here bears no relation to acts or declarations of the owner as expressive of his intent or purpose to make such a relinquishment; it is simply a question whether, irrespective of such purpose, and in opposition thereto, that relinquishment can be enforced against the owner of property within his own country, in defiance of every guaranty promised by its laws; and this through the instrumentality of a claim to power entirely foreign and extraneous with reference to himself, to the origin and foundation of his title, and to the independent authority of his country. A conclusive negative answer to such an inquiry is at once supplied, by announcing a few familiar and settled principles and doctrines of public law. Vattel, in his chapter on the general principles of the laws of nations, section 15th, tells us, that "nations being free and independent of each other in the same manner that men are naturally free and independent, the second general law of their society is, that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature." "The natural society of nations," says this writer, "cannot subsist unless the natural rights of each be respected." In section 16th he says, "as a consequence of that liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes for her--of what it is proper or improper for her to do; and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her to act in such or such a particular manner, for any attempt at such compulsion would be an infringement on the liberty of nations." Again, in section 18th, of the same chapter, "nations composed of men, and considered as so many free persons living together in a state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not produce any difference. A small republic is no less a sovereign state than the most powerful kingdom." So, in section 20: "A nation, then, is mistress of her own actions, so long as they do not affect the proper and _perfect rights_ of any other nation--so long as she is only _internally_ bound, and does not lie under any _external_ and _perfect_ obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her. Since nations are _free_, _independent_, and _equal_, and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue, in order to fulfil her duties, the effect of the whole is to produce, at least externally, in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs, and in the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment." Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, after collating the opinions of Grotius, Heineccius, Vattel, and Rutherford, enunciates the following positions as sanctioned by these and other learned publicists, viz: that "nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners. This perfect equality and entire independence of all distinct States is a fundamental principle of public law. It is a necessary consequence of this equality, that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government or religion, or a course of internal policy, to another." This writer gives some instances of the violation of this great national immunity, and amongst them the constant interference by the ancient Romans, under the pretext of settling disputes between their neighbors, but with the real purpose of reducing those neighbors to bondage; the interference of Russia, Prussia, and Austria, for the dismemberment of Poland; the more recent invasion of Naples by Austria in 1821, and of Spain by the French Government in 1823, under the excuse of suppressing a dangerous spirit of internal revolution and reform. With reference to this right of self-government in independent sovereign States, an opinion has been expressed, which, whilst it concedes this right as inseparable from and as a necessary attribute of sovereignty and independence, asserts nevertheless some implied and paramount authority of a supposed international law, to which this right of self-government must be regarded and exerted as subordinate; and from which independent and sovereign States can be exempted only by a protest, or by some public and formal rejection of that authority. With all respect for those by whom this opinion has been professed, I am constrained to regard it as utterly untenable, as palpably inconsistent, and as presenting in argument a complete _felo de se_. Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and an exemption from all claims by any extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation. Again, could such claims from extraneous sources be regarded as legitimate, the effort to resist or evade them, by protest or denial, would be as irregular and unmeaning as it would be futile. It could in no wise affect the question of superior right. For the position here combatted, no respectable authority has been, and none it is thought can be adduced. It is certainly irreconcilable with the doctrines already cited from the writers upon public law. Neither the case of Lewis Somersett, (Howell's State Trials, vol. 20,) so often vaunted as the proud evidence of devotion to freedom under a Government which has done as much perhaps to extend the reign of slavery as all the world besides; nor does any decision founded upon the authority of Somersett's case, when correctly expounded, assail or impair the principle of national equality enunciated by each and all of the publicists already referred to. In the case of Somersett, although the applicant for the _habeas corpus_ and the individual claiming property in that applicant were both subjects and residents within the British empire, yet the decision cannot be correctly understood as ruling absolutely and under all circumstances against the right of property in the claimant. That decision goes no farther than to determine, that _within the realm of England_ there was no authority to justify the detention of an individual in private bondage. If the decision in Somersett's case had gone beyond this point, it would have presented the anomaly of a repeal by laws enacted for and limited in their operation to the realm alone, of other laws and institutions established for places and subjects without the limits of the realm of England; laws and institutions at that very time, and long subsequently, sanctioned and maintained under the authority of the British Government, and which the full and combined action of the King and Parliament was required to abrogate. But could the decision in Somersett's case be correctly interpreted as ruling the doctrine which it has been attempted to deduce from it, still that doctrine must be considered as having been overruled by the lucid and able opinion of Lord Stowell in the more recent case of the slave Grace, reported in the second volume of Haggard, p. 94; in which opinion, whilst it is conceded by the learned judge that there existed no power to coerce the slave whilst in England, that yet, upon her return to the island of Antigua, her _status_ as a slave was revived, or, rather, that the title of the owner to the slave as property had never been extinguished, but had always existed in that island. If the principle of this decision be applicable as between different portions of one and the same empire, with how much more force does it apply as between nations or Governments entirely separate, and absolutely independent of each other? For in this precise attitude the States of this Union stand with reference to this subject, and with reference to the tenure of every description of property vested under their laws and held within their territorial jurisdiction. A strong illustration of the principle ruled by Lord Stowell, and of the effect of that principle even in a case of express _contract_, is seen in the case of Lewis _v._ Fullerton, decided by the Supreme Court of Virginia, and reported in the first volume of Randolph, p. 15. The case was this: A female slave, the property of a citizen of Virginia, whilst with her master in the State of Ohio, was taken from his possession under a writ of _habeas corpus_, and set at liberty. Soon, or immediately after, by agreement between this slave and her master, a deed was executed in Ohio by the latter, containing a stipulation that this slave should return to Virginia, and, after a service of two years in that State, should there be free. The law of Virginia regulating emancipation required that deeds of emancipation should, within a given time from their date, be recorded in the court of the county in which the grantor resided, and declared that deeds with regard to which this requisite was not complied with should be void. Lewis, an infant son of this female, under the rules prescribed in such cases, brought an action, _in forma pauperis_, in one of the courts of Virginia, for the recovery of his freedom, claimed in virtue of the transactions above mentioned. Upon an appeal to the Supreme Court from a judgment against the plaintiff, Roane, Justice, in delivering the opinion of the court, after disposing of other questions discussed in that case, remarks: "As to the deed of emancipation contained in the record, that deed, taken in connection with the evidence offered in support of it, shows that it had a reference to the State of Virginia; and the testimony shows that it formed a part of this contract, whereby the slave Milly was to be brought back (as she was brought back) into the State of Virginia. Her object was therefore to secure her freedom by the deed within the State of Virginia, after the time should have expired for which she had indented herself, and when she should be found abiding within the State of Virginia. "If, then, this contract had an eye to the State of Virginia for its operation and effect, the _lex loci_ ceases to operate. In that case it must, to have its effect, conform to the laws of Virginia. It is insufficient under those laws to effectuate an emancipation, for want of a due recording in the county court, as was decided in the case of Givens _v._ Mann, in this court. It is also ineffectual within the Commonwealth of Virginia for another reason. The _lex loci_ is also to be taken subject to the exception, that it is not to be enforced in another country, when it violates some moral duty or the policy of that country, or is not consistent with a positive right secured to a third person or party by the laws of that country in which it is sought to be enforced. In such a case we are told, '_magis jus nostrum, quam jus alienum servemus_.'" (Huberus, tom. 2, lib. 1, tit. 3; 2 Fontblanque, p. 444.) "That third party in this instance is the Commonwealth of Virginia, and her policy and interests are also to be attended to. These turn the scale against the _lex loci_ in the present instance." The second or last-mentioned position assumed for the plaintiff under the pleas in bar, as it rests mainly if not solely upon the provision of the act of Congress of March 6, 1820, prohibiting slavery in Upper Louisiana north of thirty-six degrees thirty minutes north latitude, popularly called the _Missouri Compromise_, that assumption renews the question, formerly so zealously debated, as to the validity of the provision in the act of Congress, and upon the constitutional competency of Congress to establish it. Before proceeding, however, to examine the validity of the prohibitory provision of the law, it may, so far as the rights involved in this cause are concerned, be remarked, that conceding to that provision the validity of a legitimate exercise of power, still this concession could by no rational interpretation imply the slightest authority for its operation beyond the territorial limits comprised within its terms; much less could there be inferred from it a power to destroy or in any degree to control rights, either of person or property, entirely within the bounds of a distinct and independent sovereignty--rights invested and fortified by the guaranty of that sovereignty. These surely would remain in all their integrity, whatever effect might be ascribed to the prohibition within the limits defined by its language. But, beyond and in defiance of this conclusion, inevitable and undeniable as it appears, upon every principle of justice or sound induction, it has been attempted to convert this prohibitory provision of the act of 1820 not only into a weapon with which to assail the inherent--the _necessarily_ inherent--powers of independent sovereign Governments, but into a mean of forfeiting that equality of rights and immunities which are the birthright or the donative from the Constitution of every citizen of the United States within the length and breadth of the nation. In this attempt, there is asserted a power in Congress, whether from incentives of interest, ignorance, faction, partiality, or prejudice, to bestow upon a portion of the citizens of this nation that which is the common property and privilege of all--the power, in fine, of confiscation, in retribution for no offence, or, if for an offence, for that of accidental locality only. It may be that, with respect to future cases, like the one now before the court, there is felt an assurance of the impotence of such a pretension; still, the fullest conviction of that result can impart to it no claim to forbearance, nor dispense with the duty of antipathy and disgust at its sinister aspect, whenever it may be seen to scowl upon the justice, the order, the tranquillity, and fraternal feeling, which are the surest, nay, the only means, of promoting or preserving the happiness and prosperity of the nation, and which were the great and efficient incentives to the formation of this Government. The power of Congress to impose the prohibition in the eighth section of the act of 1820 has been advocated upon an attempted construction of the second clause of the third section of the fourth article of the Constitution, which declares that "Congress shall have power to dispose of and to make all needful rules and regulations respecting the _territory_ and _other property belonging_ to the United States." In the discussions in both houses of Congress, at the time of adopting this eighth section of the act of 1820, great weight was given to the peculiar language of this clause, viz: _territory_ and _other property belonging_ to the United States, as going to show that the power of disposing of and regulating, thereby vested in Congress, was restricted to a _proprietary interest in the territory or land_ comprised therein, and did not extend to the personal or political rights of citizens or settlers, inasmuch as this phrase in the Constitution, "_territory or other property_," identified _territory_ with _property_, and inasmuch as _citizens_ or _persons_ could not be property, and especially were not property _belonging_ to the United States. And upon every principle of reason or necessity, this power to dispose of and to regulate the _territory_ of the nation could be designed to extend no farther than to its preservation and appropriation to the uses of those to whom it belonged, viz: the nation. Scarcely anything more illogical or extravagant can be imagined than the attempt to deduce from this provision in the Constitution a power to destroy or in any wise to impair the civil and political rights of the citizens of the United States, and much more so the power to establish inequalities amongst those citizens by creating privileges in one class of those citizens, and by the disfranchisement of other portions or classes, by degrading them from the position they previously occupied. There can exist no rational or natural connection or affinity between a pretension like this and the power vested by the Constitution in Congress with regard to the Territories; on the contrary, there is an absolute incongruity between them. But whatever the power vested in Congress, and whatever the precise subject to which that power extended, it is clear that the power related to a subject appertaining to the _United States_, and one to be disposed of and regulated for the benefit and under the authority of the _United States_. Congress was made simply the agent or _trustee_ for the United States, and could not, without a breach of trust and a fraud, appropriate the subject of the trust to any other beneficiary or _cestui que trust_ than the United States, or to the people of the United States, upon equal grounds, legal or equitable. Congress could not appropriate that subject to any one class or portion of the people, to the exclusion of others, politically and constitutionally equals; but every citizen would, if any _one_ could claim it, have the like rights of purchase, settlement, occupation, or any other right, in the national territory. Nothing can be more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them because they are the owners of slaves, than the fact that the same instrument, which imparts to Congress its very existence and its every function, guaranties to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation; and, farther, that the only private property which the Constitution has _specifically recognised_, and has imposed it as a direct obligation both on the States and the Federal Government to protect and _enforce_, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty. Can there be imputed to the sages and patriots by whom the Constitution was framed, or can there be detected in the text of that Constitution, or in any rational construction or implication deducible therefrom, a contradiction so palpable as would exist between a pledge to the slaveholder of an equality with his fellow-citizens, and of the formal and solemn assurance for the security and enjoyment of his property, and a warrant given, as it were _uno flatu_, to another, to rob him of that property, or to subject him to proscription and disfranchisement for possessing or for endeavoring to retain it? The injustice and extravagance necessarily implied in a supposition like this, cannot be rationally imputed to the patriotic or the honest, or to those who were merely sane. A conclusion in favor of the prohibitory power in Congress, as asserted in the eighth section of the act of 1820, has been attempted, as deducible from the precedent of the ordinance of the convention of 1787, concerning the cession by Virginia of the territory northwest of the Ohio; the provision in which ordinance, relative to slavery, it has been attempted to impose upon other and subsequently-acquired territory. The first circumstance which, in the consideration of this provision, impresses itself upon my mind, is its utter futility and want of authority. This court has, in repeated instances, ruled, that whatever may have been the force accorded to this ordinance of 1787 at the period of its enactment, its authority and effect ceased, and yielded to the paramount authority of the Constitution, from the period of the adoption of the latter. Such is the principle ruled in the cases of Pollard's Lessee _v._ Hagan, (3 How., 212,) Parmoli [Transcriber's Note: Permoli] _v._ The First Municipality of New Orleans, (3 How., 589,) Strader _v._ Graham, (16 How., 82.) But apart from the superior control of the Constitution, and anterior to the adoption of that instrument, it is obvious that the inhibition in question never had and never could have any legitimate and binding force. We may seek in vain for any power in the convention, either to require or to accept a condition or restriction upon the cession like that insisted on; a condition inconsistent with, and destructive of, the object of the grant. The cession was, as recommended by the old Congress in 1780, made originally and completed _in terms_ to _the United States_, and for the benefit of the United States, i.e., for _the people, all the people_, of the United States. The condition subsequently sought to be annexed in 1787, (declared, too, to be perpetual and immutable,) being contradictory to the terms and destructive of the purposes of the cession, and after the cession was consummated, and the powers of the ceding party terminated, and the rights of the grantees, _the people of the United States_, vested, must necessarily, so far, have been _ab initio_ void. With respect to the power of the convention to impose this inhibition, it seems to be pertinent in this place to recur to the opinion of one cotemporary with the establishment of the Government, and whose distinguished services in the formation and adoption of our national charter, point him out as the _artifex maximus_ of our Federal system. James Madison, in the year 1819, speaking with reference to the prohibitory power claimed by Congress, then threatening the very existence of the Union, remarks of the language of the second clause of the third section of article fourth of the Constitution, "that it cannot be well extended beyond a power over the territory _as property_, and the power to make provisions really needful or necessary for the government of settlers, until ripe for admission into the Union." Again he says, "with respect to what has taken place in the Northwest territory, it may be observed that the ordinance giving it its distinctive character on the subject of slaveholding proceeded from the old Congress, acting with the best intentions, but under a charter which contains no shadow of the authority exercised; and it remains to be decided how far the States formed within that territory, and admitted into the Union, are on a different footing from its other members as to their legislative sovereignty. As to the power of admitting new States into the Federal compact, the questions offering themselves are, whether Congress can attach conditions, or the new States concur in conditions, which after admission would _abridge_ or _enlarge_ the constitutional rights of legislation common to other States; whether Congress can, by a compact with a new State, take power either to or from itself, or place the new member above or below the equal rank and rights possessed by the others; whether all such stipulations expressed or implied would not be nullities, and be so pronounced when brought to a practical test. It falls within the scope of your inquiry to state the fact, that there was a proposition in the convention to discriminate between the old and the new States by an article in the Constitution. The proposition, happily, was rejected. The effect of such a discrimination is sufficiently evident."[2] [Footnote 2: Letter from James Madison to Robert Walsh, November 27th, 1819, on the subject of the Missouri Compromise.] In support of the ordinance of 1787, there may be adduced the semblance at least of obligation deducible from _compact_, the _form_ of assent or agreement between the grantor and grantee; but this form or similitude, as is justly remarked by Mr. Madison, is rendered null by the absence of power or authority in the contracting parties, and by the more intrinsic and essential defect of incompatibility with the rights and avowed purposes of those parties, and with their relative duties and obligations to others. If, then, with the attendant _formalities_ of assent or compact, the restrictive power claimed was void as to the immediate subject of the ordinance, how much more unfounded must be the pretension to such a power as derived from that source, (viz: the ordinance of 1787,) with respect to territory acquired by purchase or conquest under the supreme authority of the Constitution--territory not the subject of _mere donation_, but obtained _in the name of all, by the combined efforts and resources of all_, and with no condition annexed or pretended. In conclusion, my opinion is, that the decision of the Circuit Court, upon the law arising upon the several pleas in bar, is correct, but that it is erroneous in having sustained the demurrer to the plea in abatement of the jurisdiction; that for this error the decision of the Circuit Court should be reversed, and the cause remanded to that court, with instructions to abate the action, for the reason set forth and pleaded in the plea in abatement. In the aforegoing examination of this cause, the circumstance that the questions involved therein had been previously adjudged between these parties by the court of the State of Missouri, has not been adverted to; for although it has been ruled by this court, that in instances of concurrent jurisdiction, the court first obtaining possession or cognizance of the controversy should retain and decide it, yet, as in this case there had been no plea, either of a former judgment or of _autre action pendent_, it was thought that the fact of a prior decision, however conclusive it might have been if regularly pleaded, could not be incidentally taken into view. * * * * * Mr. Justice CAMPBELL. I concur in the judgment pronounced by the Chief Justice, but the importance of the cause, the expectation and interest it has awakened, and the responsibility involved in its determination, induce me to file a separate opinion. The case shows that the plaintiff, in the year 1834, was a negro slave in Missouri, the property of Dr. Emerson, a surgeon in the army of the United States. In 1834, his master took him to the military station at Rock Island, on the border of Illinois, and in 1836 to Fort Snelling, in the present Minnesota, then Wisconsin, Territory. While at Fort Snelling, the plaintiff married a slave who was there with her master, and two children have been born of this connection; one during the journey of the family in returning to Missouri, and the other after their return to that State. Since 1838, the plaintiff and the members of his family have been in Missouri in the condition of slaves. The object of this suit is to establish their freedom. The defendant, who claims the plaintiff and his family, under the title of Dr. Emerson, denied the jurisdiction of the Circuit Court, by the plea that the plaintiff was a negro of African blood, the descendant of Africans who had been imported and sold in this country as slaves, and thus he had no capacity as a citizen of Missouri to maintain a suit in the Circuit Court. The court sustained a demurrer to this plea, a trial was then had upon the general issue, and special pleas to the effect that the plaintiff and his family were slaves belonging to the defendant. My opinion in this case is not affected by the plea to the jurisdiction, and I shall not discuss the questions it suggests. The claim of the plaintiff to freedom depends upon the effect to be given to his absence from Missouri, in company with his master, in Illinois and Minnesota, and this effect is to be ascertained by a reference to the laws of Missouri. For the trespass complained of was committed upon one claiming to be a freeman and a citizen, in that State, and who had been living for years under the dominion of its laws. And the rule is, that whatever is a justification where the thing is done, must be a justification in the forum where the case is tried. (20 How. St. Tri., 234; Cowp. S.C., 161.) The Constitution of Missouri recognises slavery as a legal condition, extends guaranties to the masters of slaves, and invites immigrants to introduce them, as property, by a promise of protection. The laws of the State charge the master with the custody of the slave, and provide for the maintenance and security of their relation. The Federal Constitution and the acts of Congress provide for the return of escaping slaves within the limits of the Union. No removal of the slave beyond the limits of the State, against the consent of the master, nor residence there in another condition, would be regarded as an effective manumission by the courts of Missouri, upon his return to the State. "Sicut liberis captis status restituitur sic servus domino." Nor can the master emancipate the slave within the State, except through the agency of a public authority. The inquiry arises, whether the manumission of the slave is effected by his removal, with the consent of the master, to a community where the law of slavery does not exist, in a case where neither the master nor slave discloses a purpose to remain permanently, and where both parties have continued to maintain their existing relations. What is the law of Missouri in such a case? Similar inquiries have arisen in a great number of suits, and the discussions in the State courts have relieved the subject of much of its difficulty. (12 B.M. Ky. R., 545; Foster _v._ Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R., 295; Scott _v._ Emerson, 15 Misso., 576; 4 Rich. S.C.R., 186; 17 Misso., 434; 15 Misso., 596; 5 B.M., 173; 8 B.M., 540, 633; 9 B.M., 565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.) The result of these discussions is, that in general, the _status_, or civil and political capacity of a person, is determined, in the first instance, by the law of the domicil where he is born; that the legal effect on persons, arising from the operation of the law of that domicil, is not indelible, but that a new capacity or _status_ may be acquired by a change of domicil. That questions of _status_ are closely connected with considerations arising out of the social and political organization of the State where they originate, and each sovereign power must determine them within its own territories. A large class of cases has been decided upon the second of the propositions above stated, in the Southern and Western courts--cases in which the law of the actual domicil was adjudged to have altered the native condition and _status_ of the slave, although he had never actually possessed the _status_ of freedom in that domicil. (Rankin _v._ Lydia, 2 A.K.M.; Herny [Transcriber's Note: Harry] _v._ Decker, Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter _v._ Fulcher, 1 Leigh [Transcriber's Note: full citation as given elsewhere is 1 Leigh, 172].) I do not impugn the authority of these cases. No evidence is found in the record to establish the existence of a domicil acquired by the master and slave, either in Illinois or Minnesota. The master is described as an officer of the army, who was transferred from one station to another, along the Western frontier, in the line of his duty, and who, after performing the usual tours of service, returned to Missouri; these slaves returned to Missouri with him, and had been there for near fifteen years, in that condition, when this suit was instituted. But absence, in the performance of military duty, without more, is a fact of no importance in determining a question of a change of domicil. Questions of that kind depend upon acts and intentions, and are ascertained from motives, pursuits, the condition of the family, and fortune of the party, and no change will be inferred, unless evidence shows that one domicil was abandoned, and there was an intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M. and W., 511; 2 Curt. Ecc. R., 368.) The cases first cited deny the authority of a foreign law to dissolve relations which have been legally contracted in the State where the parties are, and have their actual domicil--relations which were never questioned during their absence from that State--relations which are consistent with the native capacity and condition of the respective parties, and with the policy of the State where they reside; but which relations were inconsistent with the policy or laws of the State or Territory within which they had been for a time, and from which they had returned, with these relations undisturbed. It is upon the assumption, that the law of Illinois or Minnesota was indelibly impressed upon the slave, and its consequences carried into Missouri, that the claim of the plaintiff depends. The importance of the case entitles the doctrine on which it rests to a careful examination. It will be conceded, that in countries where no law or regulation prevails, opposed to the existence and consequences of slavery, persons who are born in that condition in a foreign State would not be liberated by the accident of their introgression. The relation of domestic slavery is recognised in the law of nations, and the interference of the authorities of one State with the rights of a master belonging to another, without a valid cause, is a violation of that law. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh. Sp., 378; Reports of the Com. U.S. and G.B., 187, 238, 241.) The public law of Europe formerly permitted a master to reclaim his bondsman, within a limited period, wherever he could find him, and one of the capitularies of Charlemagne abolishes the rule of prescription. He directs, "that wheresoever, within the bounds of Italy, either the runaway slave of the king, or of the church, or of any other man, shall be found by his master, he shall be restored without any bar or prescription of years; yet upon the provision that the master be a Frank or German, or of any other nation (foreign;) but if he be a Lombard or a Roman, he shall acquire or receive his slaves by that law which has been established from ancient times among them." Without referring for precedents abroad, or to the colonial history, for similar instances, the history of the Confederation and Union affords evidence to attest the existence of this ancient law. In 1783, Congress directed General Washington to continue his remonstrances to the commander of the British forces respecting the permitting negroes belonging to the citizens of these States to leave New York, and to insist upon the discontinuance of that measure. In 1788, the resident minister of the United States at Madrid was instructed to obtain from the Spanish Crown orders to its Governors in Louisiana and Florida, "to permit and facilitate the apprehension of fugitive slaves from the States, promising that the States would observe the like conduct respecting fugitives from Spanish subjects." The committee that made the report of this resolution consisted of Hamilton, Madison, and Sedgwick, (2 Hamilton's Works, 473;) and the clause in the Federal Constitution providing for the restoration of fugitive slaves is a recognition of this ancient right, and of the principle that a change of place does not effect a change of condition. The diminution of the power of a master to reclaim his escaping bondsman in Europe commenced in the enactment of laws of prescription in favor of privileged communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany; Carcassonne, Béziers, Toulouse, and Paris, in France, acquired privileges on this subject at an early period. The ordinance of William the Conqueror, that a residence of any of the servile population of England, for a year and a day, without being claimed, in any city, burgh, walled town, or castle of the King, should entitle them to perpetual liberty, is a specimen of these laws. The earliest publicist who has discussed this subject is Bodin, a jurist of the sixteenth century, whose work was quoted in the early discussions of the courts in France and England on this subject. He says: "In France, although there be some remembrance of old servitude, yet it is not lawful here to make a slave or to buy any one of others, insomuch as the slaves of strangers, so soon as they set their foot within France, become frank and free, as was determined by an old decree of the court of Paris against an ambassador of Spain, who had brought a slave with him into France." He states another case, which arose in the city of Toulouse, of a Genoese merchant, who had carried a slave into that city on his voyage from Spain; and when the matter was brought before the magistrates, the "procureur of the city, out of the records, showed certain ancient privileges given unto them of Tholouse, wherein it was granted that slaves, so soon as they should come into Tholouse, should be free." These cases were cited with much approbation in the discussion of the claims of the West India slaves of Verdelin for freedom, in 1738, before the judges in admiralty, (15 Causes Celébrés, p. 1; 2 Masse Droit Com., sec. 58,) and were reproduced before Lord Mansfield, in the cause of Somersett, in 1772. Of the cases cited by Bodin, it is to be observed that Charles V of France exempted all the inhabitants of Paris from serfdom, or other feudal incapacities, in 1371, and this was confirmed by several of his successors, (3 Dulaire Hist. de Par., 546; Broud. Cout. de Par., 21,) and the ordinance of Toulouse is preserved as follows: "_Civitas Tholosana fuit et erit sine fine libera, adeo ut servi et ancillæ, sclavi et sclavæ, dominos sive dominas habentes, cum rebus vel sine rebus suis, ad Tholosam vel infrâ terminos extra urbem terminatos accedentes acquirant libertatem_." (Hist. de Langue, tome 3, p. 69; Ibid. 6, p. 8; Loysel Inst., b. 1, sec. 6.) The decisions were made upon special ordinances, or charters, which contained positive prohibitions of slavery, and where liberty had been granted as a privilege; and the history of Paris furnishes but little support for the boast that she was a "_sacro sancta civitas_," where liberty always had an asylum, or for the "self-complacent rhapsodies" of the French advocates in the case of Verdelin, which amused the grave lawyers who argued the case of Somersett. The case of Verdelin was decided upon a special ordinance, which prescribed the conditions on which West India slaves might be introduced into France, and which had been disregarded by the master. The case of Somersett was that of a Virginia slave carried to England by his master in 1770, and who remained there two years. For some cause, he was confined on a vessel destined to Jamaica, where he was to be sold. Lord Mansfield, upon a return to a _habeas corpus_, states the question involved. "Here, the person of the slave himself," he says, "is the immediate subject of inquiry, Can any dominion, authority, or coercion, be exercised in this country, according to the American laws?" He answers: "The difficulty of adopting the relation, without adopting it in all its consequences, is indeed extreme, and yet many of those consequences are absolutely contrary to the municipal law of England." Again, he says: "The return states that the slave departed, and refused to serve; whereupon, he was kept to be sold abroad." "So high an act of dominion must be recognised by the law of the country where it is used. The power of the master over his slave has been extremely different in different countries." "The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, are erased from the memory. It is so odious, that nothing can be suffered to support it but positive law." That there is a difference in the systems of States, which recognise and which do not recognise the institution of slavery, cannot be disguised. Constitutional law, punitive law, police, domestic economy, industrial pursuits, and amusements, the modes of thinking and of belief of the population of the respective communities, all show the profound influence exerted upon society by this single arrangement. This influence was discovered in the Federal Convention, in the deliberations on the plan of the Constitution. Mr. Madison observed, "that the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concur in forming the great division of interests in the United States." The question to be raised with the opinion of Lord Mansfield, therefore, is not in respect to the incongruity of the two systems, but whether slavery was absolutely contrary to the law of England; for if it was so, clearly, the American laws could not operate there. Historical research ascertains that at the date of the Conquest the rural population of England were generally in a servile condition, and under various names, denoting slight variances in condition, they were sold with the land like cattle, and were a part of its living money. Traces of the existence of African slaves are to be found in the early chronicles. Parliament in the time of Richard II, and also of Henry VIII, refused to adopt a general law of emancipation. Acts of emancipation by the last-named monarch and by Elizabeth are preserved. The African slave trade had been carried on, under the unbounded protection of the Crown, for near two centuries, when the case of Somersett was heard, and no motion for its suppression had ever been submitted to Parliament; while it was forced upon and maintained in unwilling colonies by the Parliament and Crown of England at that moment. Fifteen thousand negro slaves were then living in that island, where they had been introduced under the counsel of the most illustrious jurists of the realm, and such slaves had been publicly sold for near a century in the markets of London. In the northern part of the kingdom of Great Britain there existed a class of from 30,000 to 40,000 persons, of whom the Parliament said, in 1775, (15 George III, chap. 28,) "many colliers, coal-heavers, and salters, are in a state of slavery or bondage, bound to the collieries and salt works, where they work for life, transferable with the collieries and salt works when their original masters have no use for them; and whereas the emancipating or setting free the colliers, coal-heavers, and salters, in Scotland, who are now in a state of servitude, gradually and upon reasonable conditions, would be the means of increasing the number of colliers, coal-heavers, and salters, to the great benefit of the public, without doing any injury to the present masters, and would remove the reproach of allowing such a state of servitude to exist in a free country," &c.; and again, in 1799, "they declare that many colliers and coal-heavers still continue in a state of bondage." No statute, from the Conquest till the 15 George III, had been passed upon the subject of personal slavery. These facts have led the most eminent civilian of England to question the accuracy of this judgment, and to insinuate that in this judgment the offence of _ampliare jurisdictionem_ by private authority was committed by the eminent magistrate who pronounced it. This sentence is distinguishable from those cited from the French courts in this: that there positive prohibitions existed against slavery, and the right to freedom was conferred on the immigrant slave by positive law; whereas here the consequences of slavery merely--that is, the public policy--were found to be contrary to the law of slavery. The case of the slave Grace, (2 Hagg.,) with four others, came before Lord Stowell in 1827, by appeals from the West India vice admiralty courts. They were cases of slaves who had returned to those islands, after a residence in Great Britain, and where the claim to freedom was first presented in the colonial forum. The learned judge in that case said: "This suit fails in its foundation. She (Grace) was not a free person; no injury is done her by her continuance in slavery, and she has no pretensions to any other station than that which was enjoyed by every slave of a family. If she depends upon such freedom conveyed by a mere residence in England, she complains of a violation of right which she possessed no longer than whilst she resided in England, but which totally expired when that residence ceased, and she was imported into Antigua." The decision of Lord Mansfield was, "that so high an act of dominion" as the master exercises over his slave, in sending him abroad for sale, could not be exercised in England under the American laws, and contrary to the spirit of their own. The decision of Lord Stowell is, that the authority of the English laws terminated when the slave departed from England. That the laws of England were not imported into Antigua, with the slave, upon her return, and that the colonial forum had no warrant for applying a foreign code to dissolve relations which had existed between persons belonging to that island, and which were legal according to its own system. There is no distinguishable difference between the case before us and that determined in the admiralty of Great Britain. The complaint here, in my opinion, amounts to this: that the judicial tribunals of Missouri have not denounced as odious the Constitution and laws under which they are organized, and have not superseded them on their own private authority, for the purpose of applying the laws of Illinois, or those passed by Congress for Minnesota, in their stead. The eighth section of the act of Congress of the 6th of March, 1820, (3 Statutes at Large, 545,) entitled, "An act to authorize the people of Missouri to form a State Government," &c., &c., is referred to, as affording the authority to this court to pronounce the sentence which the Supreme Court of Missouri felt themselves constrained to refuse. That section of the act prohibits slavery in the district of country west of the Mississippi, north of thirty-six degrees thirty minutes north latitude, which belonged to the ancient province of Louisiana, not included in Missouri. It is a settled doctrine of this court, that the Federal Government can exercise no power over the subject of slavery within the States, nor control the intermigration of slaves, other than fugitives, among the States. Nor can that Government affect the duration of slavery within the States, other than by a legislation over the foreign slave trade. The power of Congress to adopt the section of the act above cited must therefore depend upon some condition of the Territories which distinguishes them from States, and subjects them to a control more extended. The third section of the fourth article of the Constitution is referred to as the only and all-sufficient grant to support this claim. It is, that "new States may be admitted by the Congress to this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." It is conceded, in the decisions of this court, that Congress may secure the rights of the United States in the public domain, provide for the sale or lease of any part of it, and establish the validity of the titles of the purchasers, and may organize Territorial Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1 Pet., 511; 13 P., 436; 16 H., 164.) But the recognition of a plenary power in Congress to dispose of the public domain, or to organize a Government over it, does not imply a corresponding authority to determine the internal polity, or to adjust the domestic relations, or the persons who may lawfully inhabit the territory in which it is situated. A supreme power to make needful rules respecting the public domain, and a similar power of framing laws to operate upon persons and things within the territorial limits where it lies, are distinguished by broad lines of demarcation in American history. This court has assisted us to define them. In Johnson _v._ McIntosh, (8 Wheat., 595--543,) [Transcriber's Note: modern citation form is 8 Wheat. 543, 595] they say: "According to the theory of the British Constitution, all vacant lands are vested in the Crown; and the exclusive power to grant them is admitted to reside in the Crown, as a branch of the royal prerogative. "All the lands we hold were originally granted by the Crown, and the establishment of a royal Government has never been considered as impairing its right to grant lands within the chartered limits of such colony." And the British Parliament did claim a supremacy of legislation coextensive with the absoluteness of the dominion of the sovereign over the Crown lands. The American doctrine, to the contrary, is embodied in two brief resolutions of the people of Pennsylvania, in 1774: 1st. "That the inhabitants of these colonies are entitled to the same rights and liberties, within the colonies, that the subjects born in England are entitled within the realm." 2d. "That the power assumed by Parliament to bind the people of these colonies by statutes, in all cases whatever, is unconstitutional, and therefore the source of these unhappy difficulties." The Congress of 1774, in their statement of rights and grievances, affirm "a free and exclusive power of legislation" in their several Provincial Legislatures, "in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed." (1 Jour. Cong., 32.) The unanimous consent of the people of the colonies, then, to the power of their sovereign, "to dispose of and make all needful rules and regulations respecting the territory" of the Crown, in 1774, was deemed by them as entirely consistent with opposition, remonstrance, the renunciation of allegiance, and proclamation of civil war, in preference to submission to his claim of supreme power in the territories. I pass now to the evidence afforded during the Revolution and Confederation. The American Revolution was not a social revolution. It did not alter the domestic condition or capacity of persons within the colonies, nor was it designed to disturb the domestic relations existing among them. It was a political revolution, by which thirteen dependent colonies became thirteen independent States. "The Declaration of Independence was not," says Justice Chase, "a declaration that the United Colonies jointly, in a collective capacity, were independent States, &c., &c., &c., but that each of them was a sovereign and independent State; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power on earth." (3 Dall., 199; 4 Cr., 212.) These sovereign and independent States, being united as a Confederation, by various public acts of cession, became jointly interested in territory, and concerned to dispose of and make all needful rules and regulations respecting it. It is a conclusion not open to discussion in this court, "that there was no territory within the (original) United States, that was claimed by them in any other right than that of some of the confederate States." (Harcourt _v._ Gaillord, 12 Wh., 523.) "The question whether the vacant lands within the United States," says Chief Justice Marshall, "became joint property, or belonged to the separate States, was a momentous question, which threatened to shake the American Confederacy to its foundations. This important and dangerous question has been compromised, and the compromise is not now to be contested." (6 C.R., 87.) The cessions of the States to the Confederation were made on the condition that the territory ceded should be laid out and formed into distinct republican States, which should be admitted as members to the Federal Union, having the same rights of sovereignty, freedom, and independence, as the other States. The first effort to fulfil this trust was made in 1785, by the offer of a charter or compact to the inhabitants who might come to occupy the land. Those inhabitants were to form for themselves temporary State Governments, founded on the Constitutions of any of the States, but to be alterable at the will of their Legislature; and permanent Governments were to succeed these, whenever the population became sufficiently numerous to authorize the State to enter the Confederacy; and Congress assumed to obtain powers from the States to facilitate this object. Neither in the deeds of cession of the States, nor in this compact, was a sovereign power for Congress to govern the Territories asserted. Congress retained power, by this act, "to dispose of and to make rules and regulations respecting the public domain," but submitted to the people to organize a Government harmonious with those of the confederate States. The next stage in the progress of colonial government was the adoption of the ordinance of 1787, by eight States, in which the plan of a Territorial Government, established by act of Congress, is first seen. This was adopted while the Federal Convention to form the Constitution was sitting. The plan placed the Government in the hands of a Governor, Secretary, and Judges, appointed by Congress, and conferred power on them to select suitable laws from the codes of the States, until the population should equal 5,000. A Legislative Council, elected by the people, was then to be admitted to a share of the legislative authority, under the supervision of Congress; and States were to be formed whenever the number of the population should authorize the measure. This ordinance was addressed to the inhabitants as a fundamental compact, and six of its articles define the conditions to be observed in their Constitution and laws. These conditions were designed to fulfil the trust in the agreements of cession, that the States to be formed of the ceded Territories should be "distinct republican States." This ordinance was submitted to Virginia in 1788, and the 5th article, embodying as it does a summary of the entire act, was specifically ratified and confirmed by that State. This was an incorporation of the ordinance into her act of cession. It was conceded, in the argument, that the authority of Congress was not adequate to the enactment of the ordinance, and that it cannot be supported upon the Articles of Confederation. To a part of the engagements, the assent of nine States was required, and for another portion no provision had been made in those articles. Mr. Madison said, in a writing nearly contemporary, but before the confirmatory act of Virginia, "Congress have proceeded to form new States, to erect temporary Governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy; all this has been done, and done without the least color of constitutional authority." (Federalist, No. 38.) Richard Henry Lee, one of the committee who reported the ordinance to Congress, transmitted it to General Washington, (15th July, 1787,) saying, "It seemed necessary, for the security of property among uninformed and perhaps licentious people, as the greater part of those who go there are, that a strong-toned Government should exist, and the rights of property be clearly defined." The consent of all the States represented in Congress, the consent of the Legislature of Virginia, the consent of the inhabitants of the Territory, all concur to support the authority of this enactment. It is apparent, in the frame of the Constitution, that the Convention recognised its validity, and adjusted parts of their work with reference to it. The authority to admit new States into the Union, the omission to provide distinctly for Territorial Governments, and the clause limiting the foreign slave trade to States then existing, which might not prohibit it, show that they regarded this Territory as provided with a Government, and organized permanently with a restriction on the subject of slavery. Justice Chase, in the opinion already cited, says of the Government before, and it is in some measure true during the Confederation, that "the powers of Congress originated from necessity, and arose out of and were only limited by events, or, in other words, they were revolutionary in their very nature. Their extent depended upon the exigencies and necessities of public affairs;" and there is only one rule of construction, in regard to the acts done, which will fully support them, viz: that the powers actually exercised were rightfully exercised, wherever they were supported by the implied sanction of the State Legislatures, and by the ratifications of the people. The clauses in the 3d section of the 4th article of the Constitution, relative to the admission of new States, and the disposal and regulation of the territory of the United States, were adopted without debate in the Convention. There was a warm discussion on the clauses that relate to the subdivision of the States, and the reservation of the claims of the United States and each of the States from any prejudice. The Maryland members revived the controversy in regard to the Crown lands of the Southwest. There was nothing to indicate any reference to a government of Territories not included within the limits of the Union; and the whole discussion demonstrates that the Convention was consciously dealing with a Territory whose condition, as to government, had been arranged by a fundamental and unalterable compact. An examination of this clause of the Constitution, by the light of the circumstances in which the Convention was placed, will aid us to determine its significance. The first clause is, "that new States may be admitted by the Congress to this Union." The condition of Kentucky, Vermont, Rhode Island, and the new States to be formed in the Northwest, suggested this, as a necessary addition to the powers of Congress. The next clause, providing for the subdivision of States, and the parties to consent to such an alteration, was required, by the plans on foot, for changes in Massachusetts, New York, Pennsylvania, North Carolina, and Georgia. The clause which enables Congress to dispose of and make regulations respecting the public domain, was demanded by the exigencies of an exhausted treasury and a disordered finance, for relief by sales, and the preparation for sales, of the public lands; and the last clause, that nothing in the Constitution should prejudice the claims of the United States or a particular State, was to quiet the jealousy and irritation of those who had claimed for the United States all the unappropriated lands. I look in vain, among the discussions of the time, for the assertion of a supreme sovereignty for Congress over the territory then belonging to the United States, or that they might thereafter acquire. I seek in vain for an annunciation that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of Congress. This disturbing element of the Union entirely escaped the apprehensive previsions of Samuel Adams, George Clinton, Luther Martin, and Patrick Henry; and, in respect to dangers from power vested in a central Government over distant settlements, colonies, or provinces, their instincts were always alive. Not a word escaped them, to warn their countrymen, that here was a power to threaten the landmarks of this federative Union, and with them the safeguards of popular and constitutional liberty; or that under this article there might be introduced, on our soil, a single Government over a vast extent of country--a Government foreign to the persons over whom it might be exercised, and capable of binding those not represented, by statutes, in all cases whatever. I find nothing to authorize these enormous pretensions, nothing in the expositions of the friends of the Constitution, nothing in the expressions of alarm by its opponents--expressions which have since been developed as prophecies. Every portion of the United States was then provided with a municipal Government, which this Constitution was not designed to supersede, but merely to modify as to its conditions. The compacts of cession by North Carolina and Georgia are subsequent to the Constitution. They adopt the ordinance of 1787, except the clause respecting slavery. But the precautionary repudiation of that article forms an argument quite as satisfactory to the advocates for Federal power, as its introduction would have done. The refusal of a power to Congress to legislate in one place, seems to justify the seizure of the same power when another place for its exercise is found. This proceeds from a radical error, which lies at the foundation of much of this discussion. It is, that the Federal Government may lawfully do whatever is not directly prohibited by the Constitution. This would have been a fundamental error, if no amendments to the Constitution had been made. But the final expression of the will of the people of the States, in the 10th amendment, is, that the powers of the Federal Government are limited to the grants of the Constitution. Before the cession of Georgia was made, Congress asserted rights, in respect to a part of her territory, which require a passing notice. In 1798 and 1800, acts for the settlement of limits with Georgia, and to establish a Government in the Mississippi Territory, were adopted. A Territorial Government was organized, between the Chattahoochee and Mississippi rivers. This was within the limits of Georgia. These acts dismembered Georgia. They established a separate Government upon her soil, while they rather derisively professed, "that the establishment of that Government shall in no respects impair the rights of the State of Georgia, either to the jurisdiction or soil of the Territory." The Constitution provided that the importation of such persons as any of the existing States shall think proper to admit, shall not be prohibited by Congress before 1808. By these enactments, a prohibition was placed upon the importation of slaves into Georgia, although her Legislature had made none. This court have repeatedly affirmed the paramount claim of Georgia to this Territory. They have denied the existence of any title in the United States. (6 C.R., 87; 12 Wh., 523; 3 How., 212; 13 How., 381.) Yet these acts were cited in the argument as precedents to show the power of Congress in the Territories. These statutes were the occasion of earnest expostulation and bitter remonstrance on the part of the authorities of the State, and the memory of their injustice and wrong remained long after the legal settlement of the controversy by the compact of 1802. A reference to these acts terminates what I have to say upon the Constitutions of the Territory within the original limits of the United States. These Constitutions were framed by the concurrence of the States making the cessions, and Congress, and were tendered to immigrants who might be attracted to the vacant territory. The legislative powers of the officers of this Government were limited to the selection of laws from the States; and provision was made for the introduction of popular institutions, and their emancipation from Federal control, whenever a suitable opportunity occurred. The limited reservation of legislative power to the officers of the Federal Government was excused, on the plea of _necessity_; and the probability is, that the clauses respecting slavery embody some compromise among the statesmen of that time; beyond these, the distinguishing features of the system which the patriots of the Revolution had claimed as their birthright, from Great Britain, predominated in them. The acquisition of Louisiana, in 1803, introduced another system into the United States. This vast province was ceded by Napoleon, and its population had always been accustomed to a viceroyal Government, appointed by the Crowns of France or Spain. To establish a Government constituted on similar principles, and with like conditions, was not an unnatural proceeding. But there was great difficulty in finding constitutional authority for the measure. The third section of the fourth article of the Constitution was introduced into the Constitution, on the motion of Mr. Gouverneur Morris. In 1803, he was appealed to for information in regard to its meaning. He answers: "I am very certain I had it not in contemplation to insert a decree _de coercendo imperio_ in the Constitution of America.... I knew then, as well as I do now, that all North America must at length be annexed to us. Happy indeed, if the lust of dominion stop here. It would therefore have been perfectly utopian to oppose a paper restriction to the violence of popular sentiment, in a popular Government." (3 Mor. Writ., 185.) A few days later, he makes another reply to his correspondent. "I perceive," he says, "I mistook the drift of your inquiry, which substantially is, whether Congress can admit, as a new State, territory which did not belong to the United States when the Constitution was made. In my opinion, they cannot. I always thought, when we should acquire Canada and Louisiana, it would be proper to GOVERN THEM AS PROVINCES, AND ALLOW THEM NO VOICE _in our councils. In wording the third_ SECTION OF THE _fourth article, I went as far as circumstances would permit, to establish the exclusion_. CANDOR OBLIGES ME TO ADD MY BELIEF, THAT HAD IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN MADE." (3 Mor. Writ., 192.) The first Territorial Government of Louisiana was an Imperial one, founded upon a French or Spanish model. For a time, the Governor, Judges, Legislative Council, Marshal, Secretary, and officers of the militia, were appointed by the President.[3] [Footnote 3: Mr. Varnum said: "The bill provided such a Government as had never been known in the United States." Mr. Eustis: "The Government laid down in this bill is certainly a new thing in the United States." Mr. Lucas: "It has been remarked, that this bill establishes elementary principles never previously introduced in the Government of any Territory of the United States. Granting the truth of this observation," &c., &c. Mr. Macon: "My first objection to the principle contained in this section is, that it establishes a species of government unknown to the United States." Mr. Boyle: "Were the President an angel instead of a man, I would not clothe him with this power." Mr. G.W. Campbell: "On examining the section, it will appear that it really establishes a complete despotism." Mr. Sloan: "Can anything be more repugnant to the principles of just government? Can anything be more despotic?"--_Annals of Congress_, 1803-'4.] Besides these anomalous arrangements, the acquisition gave rise to jealous inquiries, as to the influence it would exert in determining the men and States that were to be "the arbiters and rulers" of the destinies of the Union; and unconstitutional opinions, having for their aim to promote sectional divisions, were announced and developed. "Something," said an eminent statesman, "something has suggested to the members of Congress the policy of acquiring geographical majorities. This is a very direct step towards disunion, for it must foster the geographical enmities by which alone it can be effected. This something must be a contemplation of particular advantages to be derived from such majorities; and is it not notorious that they consist of nothing else but usurpations over persons and property, by which they can regulate the internal _wealth and prosperity of States and individuals_?" The most dangerous of the efforts to employ a geographical political power, to perpetuate a geographical preponderance in the Union, is to be found in the deliberations upon the act of the 6th of March, 1820, before cited. The attempt consisted of a proposal to exclude Missouri from a place in the Union, unless her people would adopt a Constitution containing a prohibition upon the subject of slavery, according to a prescription of Congress. The sentiment is now general, if not universal, that Congress had no constitutional power to impose the restriction. This was frankly admitted at the bar, in the course of this argument. The principles which this court have pronounced condemn the pretension then made on behalf of the legislative department. In Groves _v._ Slaughter, (15 Pet.,) the Chief Justice said: "The power over this subject is exclusively with the several States, and each of them has a right to decide for itself whether it will or will not allow persons of this description to be brought within its limits." Justice McLean said: "The Constitution of the United States operates alike in all the States, and one State has the same power over the subject of slavery as every other State." In Pollard's Lessee _v._ Hagan, (3 How., 212,) the court say: "The United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in cases where it is delegated, and the court denies the faculty of the Federal Government to add to its powers by treaty or compact." This is a necessary consequence, resulting from the nature of the Federal Constitution, which is a federal compact among the States, establishing a limited Government, with powers delegated by the people of distinct and independent communities, who reserved to their State Governments, and to themselves, the powers they did not grant. This claim to impose a restriction upon the people of Missouri involved a denial of the constitutional relations between the people of the States and Congress, and affirmed a concurrent right for the latter, with their people, to constitute the social and political system of the new States. A successful maintenance of this claim would have altered the basis of the Constitution. The new States would have become members of a Union defined in part by the Constitution and in part by Congress. They would not have been admitted to "this Union." Their sovereignty would have been restricted by Congress as well as the Constitution. The demand was unconstitutional and subversive, but was prosecuted with an energy, and aroused such animosities among the people, that patriots, whose confidence had not failed during the Revolution, began to despair for the Constitution.[4] Amid the utmost violence of this extraordinary contest, the expedient contained in the eighth section of this act was proposed, to moderate it, and to avert the catastrophe it menaced. It was not seriously debated, nor were its constitutional aspects severely scrutinized by Congress. For the first time, in the history of the country, has its operation been embodied in a case at law, and been presented to this court for their judgment. The inquiry is, whether there are conditions in the Constitutions of the Territories which subject the capacity and _status_ of persons within their limits to the direct action of Congress. Can Congress determine the condition and _status_ of persons who inhabit the Territories? [Footnote 4: Mr. Jefferson wrote: "The Missouri question is the most portentous one that ever threatened our Union. In the gloomiest moments of the revolutionary war, I never had any apprehension equal to that I feel from this source."] The Constitution permits Congress to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the United States. This power applies as well to territory belonging to the United States within the States, as beyond them. It comprehends all the public domain, wherever it may be. The argument is, that the power to make "ALL needful rules and regulations" "is a power of legislation," "a full legislative power;" "that it includes all subjects of legislation in the territory," and is without any limitations, except the positive prohibitions which affect all the powers of Congress. Congress may then regulate or prohibit slavery upon the public domain within the new States, and such a prohibition would permanently affect the capacity of a slave, whose master might carry him to it. And why not? Because no power has been conferred on Congress. This is a conclusion universally admitted. But the power to "make rules and regulations respecting the territory" is not restrained by State lines, nor are there any constitutional prohibitions upon its exercise in the domain of the United States within the States; and whatever rules and regulations respecting territory Congress may constitutionally make are supreme, and are not dependent on the _situs_ of "the territory." The author of the Farmer's Letters, so famous in the ante-revolutionary history, thus states the argument made by the American loyalists in favor of the claim of the British Parliament to legislate in all cases whatever over the colonies: "It has been urged with great vehemence against us," he says, "and it seems to be thought their FORT by our adversaries, that a power of regulation is a power of legislation; and a power of legislation, if constitutional, must be universal and supreme, in the utmost sense of the word. It is therefore concluded that the colonies, by acknowledging the power of regulation, acknowledged every other power." This sophism imposed upon a portion of the patriots of that day. Chief Justice Marshall, in his life of Washington, says "that many of the best-informed men in Massachusetts had perhaps adopted the opinion of the parliamentary right of internal government over the colonies;" "that the English statute book furnishes many instances of its exercise;" "that in no case recollected, was their authority openly controverted;" and "that the General Court of Massachusetts, on a late occasion, openly recognised the principle." (Marsh. Wash., v. 2, p. 75, 76.) But the more eminent men of Massachusetts rejected it; and another patriot of the time employs the instance to warn us of "the stealth with which oppression approaches," and "the enormities towards which precedents travel." And the people of the United States, as we have seen, appealed to the last argument, rather than acquiesce in their authority. Could it have been the purpose of Washington and his illustrious associates, by the use of ambiguous, equivocal, and expansive words, such as "rules," "regulations," "territory," to re-establish in the Constitution of their country that _fort_ which had been prostrated amid the toils and with the sufferings and sacrifices of seven years of war? Are these words to be understood as the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and Dunmores--in a word, as George III would have understood them--or are we to look for their interpretation to Patrick Henry or Samuel Adams, to Jefferson, and Jay, and Dickinson; to the sage Franklin, or to Hamilton, who from his early manhood was engaged in combating British constructions of such words? We know that the resolution of Congress of 1780 contemplated that the new States to be formed under their recommendation were to have the same rights of sovereignty, freedom, and independence, as the old. That every resolution, cession, compact, and ordinance, of the States, observed the same liberal principle. That the Union of the Constitution is a union formed of equal States; and that new States, when admitted, were to enter "this Union." Had another union been proposed in "any pointed manner," it would have encountered not only "strong" but successful opposition. The disunion between Great Britain and her colonies originated in the antipathy of the latter to "rules and regulations" made by a remote power respecting their internal policy. In forming the Constitution, this fact was ever present in the minds of its authors. The people were assured by their most trusted statesmen "that the jurisdiction of the Federal Government is limited to certain enumerated objects, which concern all members of the republic," and "that the local or municipal authorities form distinct portions of supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere." Still, this did not content them. Under the lead of Hancock and Samuel Adams, of Patrick Henry and George Mason, they demanded an explicit declaration that no more power was to be exercised than they had delegated. And the ninth and tenth amendments to the Constitution were designed to include the reserved rights of the States, and the people, within all the sanctions of that instrument, and to bind the authorities, State and Federal, by the judicial oath it prescribes, to their recognition and observance. Is it probable, therefore, that the supreme and irresponsible power, which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States, to its subversion, was ever within the contemplation of the statesmen who conducted the counsels of the people in the formation of this Constitution? When the questions that came to the surface upon the acquisition of Louisiana were presented to the mind of Jefferson, he wrote: "I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the Federal Government, and gives the powers necessary to carry them into execution." The publication of the journals of the Federal Convention in 1819, of the debates reported by Mr. Madison in 1840, and the mass of private correspondence of the early statesmen before and since, enable us to approach the discussion of the aims of those who made the Constitution, with some insight and confidence. I have endeavored, with the assistance of these, to find a solution for the grave and difficult question involved in this inquiry. My opinion is, that the claim for Congress of supreme power in the Territories, under the grant to "dispose of and make all needful rules and regulations respecting _territory_," is not supported by the historical evidence drawn from the Revolution, the Confederation, or the deliberations which preceded the ratification of the Federal Constitution. The ordinance of 1787 depended upon the action of the Congress of the Confederation, the assent of the State of Virginia, and the acquiescence of the people who recognised the validity of that plea of necessity which supported so many of the acts of the Governments of that time; and the Federal Government accepted the ordinance as a recognised and valid engagement of the Confederation. In referring to the precedents of 1798 and 1800, I find the Constitution was plainly violated by the invasion of the rights of a sovereign State, both of soil and jurisdiction; and in reference to that of 1804, the wisest statesmen protested against it, and the President more than doubted its policy and the power of the Government. Mr. John Quincy Adams, at a later period, says of the last act, "that the President found Congress mounted to the pitch of passing those acts, without inquiring where they acquired the authority, and he conquered his own scruples as they had done theirs." But this court cannot undertake for themselves the same conquest. They acknowledge that our peculiar security is in the possession of a written Constitution, and they cannot make it blank paper by construction. They look to its delineation of the operations of the Federal Government, and they must not exceed the limits it marks out, in their administration. The court have said "that Congress cannot exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, beyond what has been delegated." We are then to find the authority for supreme power in the Territories in the Constitution. What are the limits upon the operations of a Government invested with legislative, executive, and judiciary powers, and charged with the power to dispose of and to make all needful rules and regulations respecting a vast public domain? The feudal system would have recognised the claim made on behalf of the Federal Government for supreme power over persons and things in the Territories, as an incident to this title--that is, the title to dispose of and make rules and regulations respecting it. The Norman lawyers of William the Conqueror would have yielded an implicit assent to the doctrine, that a supreme sovereignty is an inseparable incident to a grant to dispose of and to make all needful rules and regulations respecting the public domain. But an American patriot, in contrasting the European and American systems, may affirm, "that European sovereigns give lands to their colonists, but reserve to themselves a power to control their property, liberty, and privileges; but the American Government sells the lands belonging to the people of the several States (i.e., United States) to their citizens, who are already in the possession of personal and political rights, which the Government did not give, and cannot take away." And the advocates for Government sovereignty in the Territories have been compelled to abate a portion of the pretensions originally made in its behalf, and to admit that the constitutional prohibitions upon Congress operate in the Territories. But a constitutional prohibition is not requisite to ascertain a limitation upon the authority of the several departments of the Federal Government. Nor are the States or people restrained by any enumeration or definition of their rights or liberties. To impair or diminish either, the department must produce an authority from the people themselves, in their Constitution; and, as we have seen, a power to make rules and regulations respecting the public domain does not confer a municipal sovereignty over persons and things upon it. But as this is "thought their fort" by our adversaries, I propose a more definite examination of it. We have seen, Congress does not dispose of or make rules and regulations respecting domain belonging to themselves, but belonging to the United States. These conferred on their mandatory, Congress, authority to dispose of the territory which belonged to them in common; and to accomplish that object beneficially and effectually, they gave an authority to make suitable rules and regulations respecting it. When the power of disposition is fulfilled, the authority to make rules and regulations terminates, for it attaches only upon territory "belonging to the United States." Consequently, the power to make rules and regulations, from the nature of the subject, is restricted to such administrative and conservatory acts as are needful for the preservation of the public domain, and its preparation for sale or disposition. The system of land surveys; the reservations for schools, internal improvements, military sites, and public buildings; the pre-emption claims of settlers; the establishment of land offices, and boards of inquiry, to determine the validity of land titles; the modes of entry, and sale, and of conferring titles; the protection of the lands from trespass and waste; the partition of the public domain into municipal subdivisions, having reference to the erection of Territorial Governments and States; and perhaps the selection, under their authority, of suitable laws for the protection of the settlers, until there may be a sufficient number of them to form a self-sustaining municipal Government--these important rules and regulations will sufficiently illustrate the scope and operation of the 3d section of the 4th article of the Constitution. But this clause in the Constitution does not exhaust the powers of Congress within the territorial subdivisions, or over the persons who inhabit them. Congress may exercise there all the powers of Government which belong to them as the Legislature of the United States, of which these Territories make a part. (Loughborough _v._ Blake, 5 Wheat., 317.) Thus the laws of taxation, for the regulation of foreign, Federal, and Indian commerce, and so for the abolition of the slave trade, for the protection of copyrights and inventions, for the establishment of postal communication and courts of justice, and for the punishment of crimes, are as operative there as within the States. I admit that to mark the bounds for the jurisdiction of the Government of the United States within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of delicacy and difficulty, and, in a great measure, is beyond the cognizance of the judiciary department of that Government. How much municipal power may be exercised by the people of the Territory, before their admission to the Union, the courts of justice cannot decide. This must depend, for the most part, on political considerations, which cannot enter into the determination of a case of law or equity. I do not feel called upon to define the jurisdiction of Congress. It is sufficient for the decision of this case to ascertain whether the residuary sovereignty of the States or people has been invaded by the 8th section of the act of 6th March, 1820, I have cited, in so far as it concerns the capacity and _status_ of persons in the condition and circumstances of the plaintiff and his family. These States, at the adoption of the Federal Constitution, were organized communities, having distinct systems of municipal law, which, though derived from a common source, and recognising in the main similar principles, yet in some respects had become unlike, and on a particular subject promised to be antagonistic. Their systems provided protection for life, liberty, and property, among their citizens, and for the determination of the condition and capacity of the persons domiciled within their limits. These institutions, for the most part, were placed beyond the control of the Federal Government. The Constitution allows Congress to coin money, and regulate its value; to regulate foreign and Federal commerce; to secure, for a limited period, to authors and inventors, a property in their writings and discoveries; and to make rules concerning captures in war; and, within the limits of these powers, it has exercised, rightly, to a greater or less extent, the power to determine what shall and what shall not be property. But the great powers of war and negotiation, finance, postal communication, and commerce, in general, when employed in respect to the property of a citizen, refer to, and depend upon, the municipal laws of the States, to ascertain and determine what is property, and the rights of the owner, and the tenure by which it is held. Whatever these Constitutions and laws validly determine to be property, it is the duty of the Federal Government, through the domain of jurisdiction merely Federal, to recognise to be property. And this principle follows from the structure of the respective Governments, State and Federal, and their reciprocal relations. They are different agents and trustees of the people of the several States, appointed with different powers and with distinct purposes, but whose acts, within the scope of their respective jurisdictions, are mutually obligatory. They are respectively the depositories of such powers of legislation as the people were willing to surrender, and their duty is to co-operate within their several jurisdictions to maintain the rights of the same citizens under both Governments unimpaired. A proscription, therefore, of the Constitution and laws of one or more States, determining property, on the part of the Federal Government, by which the stability of its social system may be endangered, is plainly repugnant to the conditions on which the Federal Constitution was adopted, or which that Government was designed to accomplish. Each of the States surrendered its powers of war and negotiation, to raise armies and to support a navy, and all of these powers are sometimes required to preserve a State from disaster and ruin. The Federal Government was constituted to exercise these powers for the preservation of the States, respectively, and to secure to all their citizens the enjoyment of the rights which were not surrendered to the Federal Government. The provident care of the statesmen who projected the Constitution was signalized by such a distribution of the powers of Government as to exclude many of the motives and opportunities for promoting provocations and spreading discord among the States, and for guarding against those partial combinations, so destructive of the community of interest, sentiment, and feeling, which are so essential to the support of the Union. The distinguishing features of their system consist in the exclusion of the Federal Government from the local and internal concerns of, and in the establishment of an independent internal Government within, the States. And it is a significant fact in the history of the United States, that those controversies which have been productive of the greatest animosity, and have occasioned most peril to the peace of the Union, have had their origin in the well-sustained opinion of a minority among the people, that the Federal Government had overstepped its constitutional limits to grant some exclusive privilege, or to disturb the legitimate distribution of property or power among the States or individuals. Nor can a more signal instance of this be found than is furnished by the act before us. No candid or rational man can hesitate to believe, that if the subject of the eighth section of the act of March, 1820, had never been introduced into Congress and made the basis of legislation, no interest common to the Union would have been seriously affected. And, certainly, the creation, within this Union, of large confederacies of unfriendly and frowning States, which has been the tendency, and, to an alarming extent, the result, produced by the agitation arising from it, does not commend it to the patriot or statesman. This court have determined that the intermigration of slaves was not committed to the jurisdiction or control of Congress. Wherever a master is entitled to go within the United States, his slave may accompany him, without any impediment from, or fear of, Congressional legislation or interference. The question then arises, whether Congress, which can exercise no jurisdiction over the relations of master and slave within the limits of the Union, and is bound to recognise and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit the continuance of those relations, within the Territories. And the citation of State statutes prohibiting the immigration of slaves, and of the decisions of State courts enforcing the forfeiture of the master's title in accordance with their rule, only darkens the discussion. For the question is, have Congress the municipal sovereignty in the Territories which the State Legislatures have derived from the authority of the people, and exercise in the States? And this depends upon the construction of the article in the Constitution before referred to. And, in my opinion, that clause confers no power upon Congress to dissolve the relations of the master and slave on the domain of the United States, either within or without any of the States. The eighth section of the act of Congress of the 6th of March, 1820, did not, in my opinion, operate to determine the domestic condition and _status_ of the plaintiff and his family during their sojourn in Minnesota Territory, or after their return to Missouri. The question occurs as to the judgment to be given in this case. It appeared upon the trial that the plaintiff, in 1834, was in a state of slavery in Missouri, and he had been in Missouri for near fifteen years in that condition when this suit was brought. Nor does it appear that he at any time possessed another state or condition, _de facto_. His claim to freedom depends upon his temporary elocation, from the domicil of his origin, in company with his master, to communities where the law of slavery did not prevail. My examination is confined to the case, as it was submitted upon uncontested evidence, upon appropriate issues to the jury, and upon the instructions given and refused by the court upon that evidence. My opinion is, that the opinion of the Circuit Court was correct upon all the claims involved in those issues, and that the verdict of the jury was justified by the evidence and instructions. The jury have returned that the plaintiff and his family are slaves. Upon this record, it is apparent that this is not a controversy between citizens of different States; and that the plaintiff, at no period of the life which has been submitted to the view of the court, has had a capacity to maintain a suit in the courts of the United States. And in so far as the argument of the Chief Justice upon the plea in abatement has a reference to the plaintiff or his family, in any of the conditions or circumstances of their lives, as presented in the evidence, I concur in that portion of his opinion. I concur in the judgment which expresses the conclusion that the Circuit Court should not have rendered a general judgment. The capacity of the plaintiff to sue is involved in the pleas in bar, and the verdict of the jury discloses an incapacity under the Constitution. Under the Constitution of the United States, his is an incapacity to sue in their courts, while, by the laws of Missouri, the operation of the verdict would be more extensive. I think it a safe conclusion to enforce the lesser disability imposed by the Constitution of the United States, and leave to the plaintiff all his rights in Missouri. I think the judgment should be affirmed, on the ground that the Circuit Court had no jurisdiction, or that the case should be reversed and remanded, that the suit may be dismissed. * * * * * Mr. Justice CATRON. The defendant pleaded to the jurisdiction of the Circuit Court, that the plaintiff was a negro of African blood; the descendant of Africans, who had been imported and sold in this country as slaves, and thus had no capacity as a citizen of Missouri to maintain a suit in the Circuit Court. The court sustained a demurrer to this plea, and a trial was had upon the pleas, of the general issue, and also that the plaintiff and his family were slaves, belonging to the defendant. In this trial, a verdict was given for the defendant. The judgment of the Circuit Court upon the plea in abatement is not open, in my opinion, to examination in this court upon the plaintiff's writ. The judgment was given for him conformably to the prayer of his demurrer. He cannot assign an error in such a judgment. (Tidd's Pr., 1163; 2 Williams's Saund., 46 a; 2 Iredell N.C., 87; 2 W. and S., 391.) Nor does the fact that the judgment was given on a plea to the jurisdiction, avoid the application of this rule. (Capron _v._ Van Noorden, 2 Cr., 126; 6 Wend., 465; 7 Met., 598; 5 Pike, 1005.) The declaration discloses a case within the jurisdiction of the court--a controversy between citizens of different States. The plea in abatement, impugning these jurisdictional averments, was waived when the defendant answered to the declaration by pleas to the merits. The proceedings on that plea remain a part of the technical record, to show the history of the case, but are not open to the review of this court by a writ of error. The authorities are very conclusive on this point. Shepherd _v._ Graves, 14 How., 505; Bailey _v._ Dozier, 6 How., 23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; 2 Stewart, (Alabama,) 370, 443; 2 Scammon, (Illinois,) 78. Nor can the court assume, as admitted facts, the averments of the plea from the confession of the demurrer. That confession was for a single object, and cannot be used for any other purpose than to test the validity of the plea. Tompkins _v._ Ashley, 1 Moody and Mackin, 32; 33 Maine, 96, 100. There being nothing in controversy here but the merits, I will proceed to discuss them. The plaintiff claims to have acquired property in himself, and became free, by being kept in Illinois during two years. The Constitution, laws, and policy, of Illinois, are somewhat peculiar respecting slavery. Unless the master becomes an inhabitant of that State, the slaves he takes there do not acquire their freedom; and if they return with their master to the slave State of his domicil, they cannot assert their freedom after their return. For the reasons and authorities on this point, I refer to the opinion of my brother Nelson, with which I not only concur, but think his opinion is the most conclusive argument on the subject within my knowledge. It is next insisted for the plaintiff, that his freedom (and that of his wife and eldest child) was obtained by force of the act of Congress of 1820, usually known as the Missouri compromise act, which declares: "That in all that territory ceded by France to the United States, which lies north of thirty-six degrees thirty minutes north latitude, slavery and involuntary servitude shall be, and are hereby, _forever prohibited_." From this prohibition, the territory now constituting the State of Missouri was excepted; which exception to the stipulation gave it the designation of a compromise. The first question presented on this act is, whether Congress had power to make such compromise. For, if power was wanting, then no freedom could be acquired by the defendant under the act. That Congress has no authority to pass laws and bind men's rights beyond the powers conferred by the Constitution, is not open to controversy. But it is insisted that, by the Constitution, Congress has power to legislate for and govern the Territories of the United States, and that by force of the power to govern, laws could be enacted, prohibiting slavery in any portion of the Louisiana Territory; and, of course, to abolish slavery _in all_ parts of it, whilst it was, or is, governed as a Territory. My opinion is, that Congress is vested with power to govern the Territories of the United States by force of the third section of the fourth article of the Constitution. And I will state my reasons for this opinion. Almost every provision in that instrument has a history that must be understood, before the brief and sententious language employed can be comprehended in the relations its authors intended. We must bring before us the state of things presented to the Convention, and in regard to which it acted, when the compound provision was made, declaring: 1st. That "new States may be admitted by the Congress into this Union." 2d. "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. And nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or any particular State." Having ascertained the historical facts giving rise to these provisions, the difficulty of arriving at the true meaning of the language employed will be greatly lessened. The history of these facts is substantially as follows: The King of Great Britain, by his proclamation of 1763, virtually claimed that the country west of the mountains had been conquered from France, and ceded to the Crown of Great Britain by the treaty of Paris of that year, and he says: "We reserve it under our sovereignty, protection, and dominion, for the use of the Indians." This country was conquered from the Crown of Great Britain, and surrendered to the United States by the treaty of peace of 1783. The colonial charters of Virginia, North Carolina, and Georgia, included it. Other States set up pretensions of claim to some portions of the territory north of the Ohio, but they were of no value, as I suppose. (5 Wheat., 375.) As this vacant country had been won by the blood and treasure of all the States, those whose charters did not reach it, insisted that the country belonged to the States united, and that the lands should be disposed of for the benefit of the whole; and to which end, the western territory should be ceded to the States united. The contest was stringent and angry, long before the Convention convened, and deeply agitated that body. As a matter of justice, and to quiet the controversy, Virginia consented to cede the country north of the Ohio as early as 1783; and in 1784 the deed of cession was executed, by her delegates in the Congress of the Confederation, conveying to the United States in Congress assembled, for the benefit of said States, "all right, title, and claim, as well of soil as of jurisdiction, which this Commonwealth hath to the _territory_ or tract of country within the limits of the Virginia charter, situate, lying, and being to the northwest of the river Ohio." In 1787, (July 13,) the ordinance was passed by the old Congress to govern the Territory. Massachusetts had ceded her pretension of claim to western territory in 1785, Connecticut hers in 1786, and New York had ceded hers. In August, 1787, South Carolina ceded to the Confederation her pretension of claim to territory west of that State. And North Carolina was expected to cede hers, which she did do, in April, 1790. And so Georgia was confidently expected to cede her large domain, now constituting the territory of the States of Alabama and Mississippi. At the time the Constitution was under consideration, there had been ceded to the United States, or was shortly expected to be ceded, all the western country, from the British Canada line to Florida, and from the head of the Mississippi almost to its mouth, except that portion which now constitutes the State of Kentucky. Although Virginia had conferred on the Congress of the Confederation power to govern the Territory north of the Ohio, still, it cannot be denied, as I think, that power was wanting to admit a new State under the Articles of Confederation. With these facts prominently before the Convention, they proposed to accomplish these ends: 1st. To give power to admit new States. 2d. To dispose of the public lands in the Territories, and such as might remain undisposed of in the new States after they were admitted. And, thirdly, to give power to govern the different Territories as incipient States, not of the Union, and fit them for admission. No one in the Convention seems to have doubted that these powers were necessary. As early as the third day of its session, (May 29th,) Edmund Randolph brought forward a set of resolutions containing nearly all the germs of the Constitution, the tenth of which is as follows: "_Resolved_, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the National Legislature less than the whole." August 18th, Mr. Madison submitted, in order to be referred to the committee of detail, the following powers as proper to be added to those of the General Legislature: "To dispose of the unappropriated lands of the United States." "To institute temporary Governments for new States arising therein." (3 Madison Papers, 1353.) These, with the resolution, that a district for the location of the seat of Government should be provided, and some others, were referred, without a dissent, to the committee of detail, to arrange and put them into satisfactory language. Gouverneur Morris constructed the clauses, and combined the views of a majority on the two provisions, to admit new States; and secondly, to dispose of the public lands, and to govern the Territories, in the mean time, between the cessions of the States and the admission into the Union of new States arising in the ceded territory. (3 Madison Papers, 1456 to 1466.) It was hardly possible to separate the power "to make all needful rules and regulations" respecting the government of the territory and the disposition of the public lands. North of the Ohio, Virginia conveyed the lands, and vested the jurisdiction in the thirteen original States, before the Constitution was formed. She had the sole title and sole sovereignty, and the same power to cede, on any terms she saw proper, that the King of England had to grant the Virginia colonial charter of 1609, or to grant the charter of Pennsylvania to William Penn. The thirteen States, through their representatives and deputed ministers in the old Congress, had the same right to govern that Virginia had before the cession. (Baldwin's Constitutional Views, 90.) And the sixth article of the Constitution adopted all engagements entered into by the Congress of the Confederation, as valid against the United States; and that the laws, made in pursuance of the new Constitution, to carry out this engagement, should be the supreme law of the land, and the judges bound thereby. To give the compact, and the ordinance, which was part of it, full effect under the new Government, the act of August 7th, 1789, was passed, which declares, "Whereas, in order that the ordinance of the United States in Congress assembled, for the government of the Territory northwest of the river Ohio, may have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the United States." It is then provided that the Governor and other officers should be appointed by the President, with the consent of the Senate; and be subject to removal, &c., in like manner that they were by the old Congress, whose functions had ceased. By the powers to govern, given by the Constitution, those amendments to the ordinance could be made, but Congress guardedly abstained from touching the compact of Virginia, further than to adapt it to the new Constitution. It is due to myself to say, that it is asking much of a judge, who has for nearly twenty years been exercising jurisdiction, from the western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had been all the while acting in mistake, and as an usurper. More than sixty years have passed away since Congress has exercised power to govern the Territories, by its legislation directly, or by Territorial charters, subject to repeal at all times, and it is now too late to call that power into question, if this court could disregard its own decisions; which it cannot do, as I think. It was held in the case of Cross _v._ Harrison, (16 How., 193-'4,) that the sovereignty of California was in the United States, in virtue of the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power to admit new States into the Union. That decision followed preceding ones, there cited. The question was then presented, how it was possible for the judicial mind to conceive that the United States Government, created solely by the Constitution, could, by a lawful treaty, acquire territory over which the acquiring power had no jurisdiction to hold and govern it, by force of the instrument under whose authority the country was acquired; and the foregoing was the conclusion of this court on the proposition. What was there announced, was most deliberately done, and with a purpose. The only question here is, as I think, how far the power of Congress is limited. As to the Northwest Territory, Virginia had the right to abolish slavery there; and she did so agree in 1787, with the other States in the Congress of the Confederation, by assenting to and adopting the ordinance of 1787, for the government of the Northwest Territory. She did this also by an act of her Legislature, passed afterwards, which was a treaty in fact. Before the new Constitution was adopted, she had as much right to treat and agree as any European Government had. And, having excluded slavery, the new Government was bound by that engagement by article six of the new Constitution. This only meant that slavery should not exist whilst the United States exercised the power of government, in the Territorial form; for, when a new State came in, it might do so, with or without slavery. My opinion is, that Congress had no power, in face of the compact between Virginia and the twelve other States, to _force_ slavery into the Northwest Territory, because there, it was bound to that "engagement," and could not break it. In 1790, North Carolina ceded her western territory, now the State of Tennessee, and stipulated that the inhabitants thereof should enjoy all the privileges and advantages of the ordinance for governing the territory north of the Ohio river, and that Congress should assume the government, and accept the cession, under the express conditions contained in the ordinance: _Provided_, "That no regulation made, or to be made, by Congress, shall tend to emancipate slaves." In 1802, Georgia ceded her western territory to the United States, with the provision that the ordinance of 1787 should in all its parts extend to the territory ceded, "that article only excepted which forbids slavery." Congress had no more power to legislate slavery _out_ from the North Carolina and Georgia cessions, than it had power to legislate slavery in, north of the Ohio. No power existed in Congress to legislate at all, affecting slavery, in either case. The inhabitants, as respected this description of property, stood protected whilst they were governed by Congress, in like manner that they were protected before the cession was made, and when they were, respectively, parts of North Carolina and Georgia. And how does the power of Congress stand west of the Mississippi river? The country there was acquired from France, by treaty, in 1803. It declares, that the First Consul, in the name of the French Republic, doth hereby cede to the United States, in full sovereignty, the colony or province of Louisiana, with all the rights and appurtenances of the said territory. And, by article third, that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities, of citizens of the United States; and, in the mean time, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess." Louisiana was a province where slavery was not only lawful, but where property in slaves was the most valuable of all personal property. The province was ceded as a unit, with an equal right pertaining to all its inhabitants, in every part thereof, to own slaves. It was, to a great extent, a vacant country, having in it few civilized inhabitants. No one portion of the colony, of a proper size for a State of the Union had a sufficient number of inhabitants to claim admission into the Union. To enable the United States to fulfil the treaty, additional population was indispensable, and obviously desired with anxiety by both sides, so that the whole country should, as soon as possible, become States of the Union. And for this contemplated future population, the treaty as expressly provided as it did for the inhabitants residing in the province when the treaty was made. All these were to be protected "_in the mean time_;" that is to say, at all times, between the date of the treaty and the time when the portion of the Territory where the inhabitants resided was admitted into the Union as a State. At the date of the treaty, each inhabitant had the right to the _free_ enjoyment of his property, alike with his liberty and his religion, in every part of Louisiana; the province then being one country, he might go everywhere in it, and carry his liberty, property, and religion, with him, and in which he was to be maintained and protected, until he became a citizen of a State of the Union of the United States. This cannot be denied to the original inhabitants and their descendants. And, if it be true that immigrants were equally protected, it must follow that they can also stand on the treaty. The settled doctrine in the State courts of Louisiana is, that a French subject coming to the Orleans Territory, after the treaty of 1803 was made, and before Louisiana was admitted into the Union, and being an inhabitant at the time of the admission, became a citizen of the United States by that act; that he was one of the inhabitants contemplated by the third article of the treaty, which referred to all the inhabitants embraced within the new State on its admission. That this is the true construction, I have no doubt. If power existed to draw a line at thirty-six degrees thirty minutes north, so Congress had equal power to draw the line on the thirtieth degree--that is, due west from the city of New Orleans--and to declare that north of _that line_ slavery should never exist. Suppose this had been done before 1812, when Louisiana came into the Union, and the question of infraction of the treaty had then been presented on the present assumption of power to prohibit slavery, who doubts what the decision of this court would have been on such an act of Congress; yet, the difference between the supposed line, and that on thirty-six degrees thirty minutes north, is only in the degree of grossness presented by the lower line. The Missouri compromise line of 1820 was very aggressive; it declared that slavery was abolished forever throughout a country reaching from the Mississippi river to the Pacific ocean, stretching over thirty-two degrees of longitude, and twelve and a half degrees of latitude on its eastern side, sweeping over four-fifths, to say no more, of the original province of Louisiana. That the United States Government stipulated in favor of the inhabitants to the extent here contended for, has not been seriously denied, as far as I know; but the argument is, that Congress had authority to _repeal_ the third article of the treaty of 1803, in so far as it secured the right to hold slave property, in a portion of the ceded territory, leaving the right to exist in other parts. In other words, that Congress could repeal the third article entirely, at its pleasure. This I deny. The compacts with North Carolina and Georgia were treaties also, and stood on the same footing of the Louisiana treaty; on the assumption of power to repeal the one, it must have extended to all, and Congress could have excluded the slaveholder of North Carolina from the enjoyment of his lands in the Territory now the State of Tennessee, where the citizens of the mother State were the principal proprietors. And so in the case of Georgia. Her citizens could have been refused the right to emigrate to the Mississippi or Alabama Territory, unless they left their most valuable and cherished property behind them. The Constitution was framed in reference to facts then existing or likely to arise: the instrument looked to no theories of Government. In the vigorous debates in the Convention, as reported by Mr. Madison and others, surrounding facts, and the condition and necessities of the country, gave rise to almost every provision; and among those facts, it was prominently true, that Congress dare not be intrusted with power to provide that, if North Carolina or Georgia ceded her western territory, the citizens of the State (in either case) could be prohibited, at the pleasure of Congress, from removing to their lands, then granted to a large extent, in the country likely to be ceded, unless they left their slaves behind. That such an attempt, in the face of a population fresh from the war of the Revolution, and then engaged in war with the great confederacy of Indians, extending from the mouth of the Ohio to the Gulf of Mexico, would end in open revolt, all intelligent men knew. In view of these facts, let us inquire how the question stands by the terms of the Constitution, aside from the treaty? How it stood in public opinion when the Georgia cession was made, in 1802, is apparent from the fact that no guaranty was required by Georgia of the United States, for the protection of slave property. The Federal Constitution was relied on, to secure the rights of Georgia and her citizens during the Territorial condition of the country. She relied on the indisputable truths, that the States were by the Constitution made equals in political rights, and equals in the right to participate in the common property of all the States united, and held in trust for them. The Constitution having provided that "The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States," the right to enjoy the territory as equals was reserved to the States, and to the citizens of the States, respectively. The cited clause is not that citizens of the United States shall have equal privileges in the Territories, but the citizen of each State shall come there in right of his State, and enjoy the common property. He secures his equality through the equality of his State, by virtue of that great fundamental condition of the Union--the equality of the States. Congress cannot do indirectly what the Constitution prohibits directly. If the slaveholder is prohibited from going to the Territory with his slaves, who are parts of his family in name and in fact, it will follow that men owning lawful property in their own States, carrying with them the equality of their State to enjoy the common property, may be told, you cannot come here with your slaves, and he will be held out at the border. By this subterfuge, owners of slave property, to the amount of thousand of millions, might be almost as effectually excluded from removing into the Territory of Louisiana north of thirty-six degrees thirty minutes, as if the law declared that owners of slaves, as a class, should be excluded, even if their slaves were left behind. Just as well might Congress have said to those of the North, you shall not introduce into the territory south of said line your cattle or horses, as the country is already overstocked; nor can you introduce your tools of trade, or machines, as the policy of Congress is to encourage the culture of sugar and cotton south of the line, and so to provide that the Northern people shall manufacture for those of the South, and barter for the staple articles slave labor produces. And thus the Northern farmer and mechanic would be held out, as the slaveholder was for thirty years, by the Missouri restriction. If Congress could prohibit one species of property, lawful throughout Louisiana when it was acquired, and lawful in the State from whence it was brought, so Congress might exclude any or all property. The case before us will illustrate the construction contended for. Dr. Emerson was a citizen of Missouri; he had an equal right to go to the Territory with every citizen of other States. This is undeniable, as I suppose. Scott was Dr. Emerson's lawful property in Missouri; he carried his Missouri title with him; and the precise question here is, whether Congress had the power to annul that title. It is idle to say, that if Congress could not defeat the title _directly_, that it might be done indirectly, by drawing a narrow circle around the slave population of Upper Louisiana, and declaring that if the slave went beyond it, he should be free. Such assumption is mere evasion, and entitled to no consideration. And it is equally idle to contend, that because Congress has express power to regulate commerce among the Indian tribes, and to prohibit intercourse with the Indians, that therefore Dr. Emerson's title might be defeated within the country ceded by the Indians to the United States as early as 1805, and which embraces Fort Snelling. (Am. State Papers, vol. 1, p. 734.) We _must_ meet the question, whether Congress had the power to declare that a citizen of a State, carrying with him his equal rights, secured to him through his State, could be stripped of his goods and slaves, and be deprived of any participation in the common property? If this be the true meaning of the Constitution, equality of rights to enjoy a common country (equal to a thousand miles square) may be cut off by a geographical line, and a great portion of our citizens excluded from it. Ingenious, indirect evasions of the Constitution have been attempted and defeated heretofore. In the passenger cases, (7 How. R.,) the attempt was made to impose a tax on the masters, crews, and passengers of vessels, the Constitution having prohibited a tax on the vessel itself; but this court held the attempt to be a mere evasion, and pronounced the tax illegal. I admit that Virginia could, and lawfully did, prohibit slavery northwest of the Ohio, by her charter of cession, and that the territory was taken by the United States with this condition imposed. I also admit that France could, by the treaty of 1803, have prohibited slavery in any part of the ceded territory, and imposed it on the United States as a fundamental condition of the cession, in the mean time, till new States were admitted in the Union. I concur with Judge Baldwin, that Federal power is exercised over all the territory within the United States, pursuant to the Constitution; _and_, the conditions of the cession, whether it was a part of the original territory of a State of the Union, or of a foreign State, ceded by deed or treaty; the right of the United States in or over it depends on the contract of cession, which operates to incorporate as well the Territory as its inhabitants into the Union. (Baldwin's Constitutional Views, 84.) My opinion is, that the third article of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Constitution, and cannot be repealed by Congress. And, secondly, that the act of 1820, known as the Missouri compromise, violates the most leading feature of the Constitution--a feature on which the Union depends, and which secures to the respective States and their citizens an entire EQUALITY of rights, privileges, and immunities. On these grounds, I hold the compromise act to have been void; and, consequently, that the plaintiff, Scott, can claim no benefit under it. For the reasons above stated, I concur with my brother judges that the plaintiff, Scott, is a slave, and was so when this suit was brought. * * * * * Mr. Justice McLEAN and Mr. Justice CURTIS dissented. Mr. Justice McLEAN dissenting. This case is before us on a writ of error from the Circuit Court for the district of Missouri. An action of trespass was brought, which charges the defendant with an assault and imprisonment of the plaintiff, and also of Harriet Scott, his wife, Eliza and Lizzie, his two children, on the ground that they were his slaves, which was without right on his part, and against law. The defendant filed a plea in abatement, "that said causes of action, and each and every of them, if any such accrued to the said Dred Scott, accrued out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that to wit, said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent, his ancestors were of pure African blood, and were brought into this country and sold as negro slaves; and this the said Sandford is ready to verify; wherefore he prays judgment whether the court can or will take further cognizance of the action aforesaid." To this a demurrer was filed, which, on argument, was sustained by the court, the plea in abatement being held insufficient; the defendant was ruled to plead over. Under this rule he pleaded: 1. Not guilty; 2. That Dred Scott was a negro slave, the property of the defendant; and 3. That Harriet, the wife, and Eliza and Lizzie, the daughters of the plaintiff, were the lawful slaves of the defendant. Issue was joined on the first plea, and replications of _de injuria_ were filed to the other pleas. The parties agreed to the following facts: In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, Dr. Emerson took the plaintiff from the State of Missouri to the post of Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, Dr. Emerson removed the plaintiff from Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the territory known as Upper Louisiana, acquired by the United States of France, and situate north of latitude thirty-six degrees thirty minutes north, and north of the State of Missouri. Dr. Emerson held the plaintiff in slavery, at Fort Snelling, from the last-mentioned date until the year 1838. In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, Major Taliaferro took Harriet to Fort Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at Fort Snelling, unto Dr. Emerson, who held her in slavery, at that place, until the year 1838. In the year 1836, the plaintiff and Harriet were married at Fort Snelling, with the consent of Dr. Emerson, who claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks. In the year 1838, Dr. Emerson removed the plaintiff and said Harriet and their daughter Eliza from Fort Snelling to the State of Missouri, where they have ever since resided. Before the commencement of the suit, Dr. Emerson sold and conveyed the plaintiff, Harriet, Eliza, and Lizzie, to the defendant, as slaves, and he has ever since claimed to hold them as slaves. At the times mentioned in the plaintiff's declaration, the defendant, claiming to be the owner, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them; doing in this respect, however, no more than he might lawfully do, if they were of right his slaves at such times. In the first place, the plea to the jurisdiction is not before us, on this writ of error. A demurrer to the plea was sustained, which ruled the plea bad, and the defendant, on leave, pleaded over. The decision on the demurrer was in favor of the plaintiff; and as the plaintiff prosecutes this writ of error, he does not complain of the decision on the demurrer. The defendant might have complained of this decision, as against him, and have prosecuted a writ of error, to reverse it. But as the case, under the instruction of the court to the jury, was decided in his favor, of course he had no ground of complaint. But it is said, if the court, on looking at the record, shall clearly perceive that the Circuit Court had no jurisdiction, it is a ground for the dismissal of the case. This may be characterized as rather a sharp practice, and one which seldom, if ever, occurs. No case was cited in the argument as authority, and not a single case precisely in point is recollected in our reports. The pleadings do not show a want of jurisdiction. This want of jurisdiction can only be ascertained by a judgment on the demurrer to the special plea. No such case, it is believed, can be cited. But if this rule of practice is to be applied in this case, and the plaintiff in error is required to answer and maintain as well the points ruled in his favor, as to show the error of those ruled against him, he has more than an ordinary duty to perform. Under such circumstances, the want of jurisdiction in the Circuit Court must be so clear as not to admit of doubt. Now, the plea which raises the question of jurisdiction, in my judgment, is radically defective. The gravamen of the plea is this: "That the plaintiff is a negro of African descent, his ancestors being of pure African blood, and were brought into this country, and sold as negro slaves." There is no averment in this plea which shows or conduces to show an inability in the plaintiff to sue in the Circuit Court. It does not allege that the plaintiff had his domicil in any other State, nor that he is not a free man in Missouri. He is averred to have had a negro ancestry, but this does not show that he is not a citizen of Missouri, within the meaning of the act of Congress authorizing him to sue in the Circuit Court. It has never been held necessary, to constitute a citizen within the act, that he should have the qualifications of an elector. Females and minors may sue in the Federal courts, and so may any individual who has a permanent domicil in the State under whose laws his rights are protected, and to which he owes allegiance. Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is "a freeman." Being a freeman, and having his domicil in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him. It has often been held, that the jurisdiction, as regards parties, can only be exercised between citizens of different States, and that a mere residence is not sufficient; but this has been said to distinguish a temporary from a permanent residence. To constitute a good plea to the jurisdiction, it must negative those qualities and rights which enable an individual to sue in the Federal courts. This has not been done; and on this ground the plea was defective, and the demurrer was properly sustained. No implication can aid a plea in abatement or in bar; it must be complete in itself; the facts stated, if true, must abate or bar the right of the plaintiff to sue. This is not the character of the above plea. The facts stated, if admitted, are not inconsistent with other facts, which may be presumed, and which bring the plaintiff within the act of Congress. The pleader has not the boldness to allege that this plaintiff is a slave, as that would assume against him the matter in controversy, and embrace the entire merits of the case in a plea to the jurisdiction. But beyond the facts set out in the plea, the court, to sustain it, must assume the plaintiff to be a slave, which is decisive on the merits. This is a short and an effectual mode of deciding the cause; but I am yet to learn that it is sanctioned by any known rule of pleading. The defendant's counsel complain, that if the court take jurisdiction on the ground that the plaintiff is free, the assumption is against the right of the master. This argument is easily answered. In the first place, the plea does not show him to be a slave; it does not follow that a man is not free whose ancestors were slaves. The reports of the Supreme Court of Missouri show that this assumption has many exceptions; and there is no averment in the plea that the plaintiff is not within them. By all the rules of pleading, this is a fatal defect in the plea. If there be doubt, what rule of construction has been established in the slave States? In Jacob _v._ Sharp, (Meigs's Rep., Tennessee, 114,) the court held, when there was doubt as to the construction of a will which emancipated a slave, "it must be construed to be subordinate to the higher and more important right of freedom." No injustice can result to the master, from an exercise of jurisdiction in this cause. Such a decision does not in any degree affect the merits of the case; it only enables the plaintiff to assert his claims to freedom before this tribunal. If the jurisdiction be ruled against him, on the ground that he is a slave, it is decisive of his fate. It has been argued that, if a colored person be made a citizen of a State, he cannot sue in the Federal court. The Constitution declares that Federal jurisdiction "may be exercised between citizens of different States," and the same is provided in the act of 1789. The above argument is properly met by saying that the Constitution was intended to be a practical instrument; and where its language is too plain to be misunderstood, the argument ends. In Chiræ _v._ Chiræ, (2 Wheat., 261; 4 Curtis, 99,) this court says: "That the power of naturalization is exclusively in Congress does not seem to be, and certainly ought not to be, controverted." No person can legally be made a citizen of a State, and consequently a citizen of the United States, of foreign birth, unless he be naturalized under the acts of Congress. Congress has power "to establish a uniform rule of naturalization." It is a power which belongs exclusively to Congress, as intimately connected with our Federal relations. A State may authorize foreigners to hold real estate within its jurisdiction, but it has no power to naturalize foreigners, and give them the rights of citizens. Such a right is opposed to the acts of Congress on the subject of naturalization, and subversive of the Federal powers. I regret that any countenance should be given from this bench to a practice like this in some of the States, which has no warrant in the Constitution. In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and in this view have recognised them as citizens; and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida. No one ever doubted, and no court ever held, that the people of these Territories did not become citizens under the treaty. They have exercised all the rights of citizens, without being naturalized under the acts of Congress. There are several important principles involved in this case, which have been argued, and which may be considered under the following heads: 1. The locality of slavery, as settled by this court and the courts of the States. 2. The relation which the Federal Government bears to slavery in the States. 3. The power of Congress to establish Territorial Governments, and to prohibit the introduction of slavery therein. 4. The effect of taking slaves into a new State or Territory, and so holding them, where slavery is prohibited. 5. Whether the return of a slave under the control of his master, after being entitled to his freedom, reduces him to his former condition. 6. Are the decisions of the Supreme Court of Missouri, on the questions before us, binding on this court, within the rule adopted. In the course of my judicial duties, I have had occasion to consider and decide several of the above points. 1. As to the locality of slavery. The civil law throughout the Continent of Europe, it is believed, without an exception, is, that slavery can exist only within the territory where it is established; and that, if a slave escapes, or is carried beyond such territory, his master cannot reclaim him, unless by virtue of some express stipulation. (Grotius, lib. 2, chap. 15, 5, 1; lib. 10, chap. 10, 2, 1; Wicqueposts Ambassador, lib. 1, p. 418; 4 Martin, 385; Case of the Creole in the House of Lords, 1842; 1 Phillimore on International Law, 316, 335.) There is no nation in Europe which considers itself bound to return to his master a fugitive slave, under the civil law or the law of nations. On the contrary, the slave is held to be free where there is no treaty obligation, or compact in some other form, to return him to his master. The Roman law did not allow freedom to be sold. An ambassador or any other public functionary could not take a slave to France, Spain, or any other country of Europe, without emancipating him. A number of slaves escaped from a Florida plantation, and were received on board of ship by Admiral Cochrane; by the King's Bench, they were held to be free. (2 Barn. and Cres., 440.) In the great and leading case of Prigg _v._ The State of Pennsylvania, (16 Peters, 594; 14 Curtis, 421,) this court say that, by the general law of nations, no nation is bound to recognise the state of slavery, as found within its territorial dominions, where it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is organized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognised in Somersett's case, (Lafft's Rep., 1; 20 Howell's State Trials, 79,) which was decided before the American Revolution. There was some contrariety of opinion among the judges on certain points ruled in Prigg's case, but there was none in regard to the great principle, that slavery is limited to the range of the laws under which it is sanctioned. No case in England appears to have been more thoroughly examined than that of Somersett. The judgment pronounced by Lord Mansfield was the judgment of the Court of King's Bench. The cause was argued at great length, and with great ability, by Hargrave and others, who stood among the most eminent counsel in England. It was held under advisement from term to term, and a due sense of its importance was felt and expressed by the Bench. In giving the opinion of the court, Lord Mansfield said: "The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, is erased from the memory; it is of a nature that nothing can be suffered to support it but positive law." He referred to the contrary opinion of Lord Hardwicke, in October, 1749, as Chancellor: "That he and Lord Talbot, when Attorney and Solicitor General, were of opinion that no such claim, as here presented, for freedom, was valid." The weight of this decision is sought to be impaired, from the terms in which it was described by the exuberant imagination of Curran. The words of Lord Mansfield, in giving the opinion of the court, were such as were fit to be used by a great judge, in a most important case. It is a sufficient answer to all objections to that judgment, that it was pronounced before the Revolution, and that it was considered by this court as the highest authority. For near a century, the decision in Somersett's case has remained the law of England. The case of the slave Grace, decided by Lord Stowell in 1827, does not, as has been supposed, overrule the judgment of Lord Mansfield. Lord Stowell held that, during the residence of the slave in England, "No dominion, authority, or coercion, can be exercised over him." Under another head, I shall have occasion to examine the opinion in the case of Grace. To the position, that slavery can only exist except under the authority of law, it is objected, that in few if in any instances has it been established by statutory enactment. This is no answer to the doctrine laid down by the court. Almost all the principles of the common law had their foundation in usage. Slavery was introduced into the colonies of this country by Great Britain at an early period of their history, and it was protected and cherished, until it became incorporated into the colonial policy. It is immaterial whether a system of slavery was introduced by express law, or otherwise, if it have the authority of law. There is no slave State where the institution is not recognised and protected by statutory enactments and judicial decisions. Slaves are made property by the laws of the slave States, and as such are liable to the claims of creditors; they descend to heirs, are taxed, and in the South they are a subject of commerce. In the case of Rankin _v._ Lydia, (2 A.K. Marshall's Rep.,) Judge Mills, speaking for the Court of Appeals of Kentucky, says: "In deciding the question, (of slavery,) we disclaim the influence of the general principles of liberty, which we all admire, and conceive it ought to be decided by the law as it is, and not as it ought to be. Slavery is sanctioned by the laws of this State, and the right to hold slaves under our municipal regulations is unquestionable. But we view this as a right existing by positive law of a municipal character, without foundation in the law of nature, or the unwritten and common law." I will now consider the relation which the Federal Government bears to slavery in the States: Slavery is emphatically a State institution. In the ninth section of the first article of the Constitution, it is provided "that the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person." In the Convention, it was proposed by a committee of eleven to limit the importation of slaves to the year 1800, when Mr. Pinckney moved to extend the time to the year 1808. This motion was carried--New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, and Georgia, voting in the affirmative; and New Jersey, Pennsylvania, and Virginia, in the negative. In opposition to the motion, Mr. Madison said: "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves; so long a term will be more dishonorable to the American character than to say nothing about it in the Constitution." (Madison Papers.) The provision in regard to the slave trade shows clearly that Congress considered slavery a State institution, to be continued and regulated by its individual sovereignty; and to conciliate that interest, the slave trade was continued twenty years, not as a general measure, but for the "benefit of such States as shall think proper to encourage it." In the case of Groves _v._ Slaughter, (15 Peters, 449; 14 Curtis, 137,) Messrs. Clay and Webster contended that, under the commercial power, Congress had a right to regulate the slave trade among the several States; but the court held that Congress had no power to interfere with slavery as it exists in the States, or to regulate what is called the slave trade among them. If this trade were subject to the commercial power, it would follow that Congress could abolish or establish slavery in every State of the Union. The only connection which the Federal Government holds with slaves in a State, arises from that provision of the Constitution which declares that "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due." This being a fundamental law of the Federal Government, it rests mainly for its execution, as has been held, on the judicial power of the Union; and so far as the rendition of fugitives from labor has become a subject of judicial action, the Federal obligation has been faithfully discharged. In the formation of the Federal Constitution, care was taken to confer no power on the Federal Government to interfere with this institution in the States. In the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered in the Constitution. We need not refer to the mercenary spirit which introduced the infamous traffic in slaves, to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country, and it is due to truth to say that the commercial colonies and States were chiefly engaged in the traffic. But we know as a historical fact, that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man. I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings, rather than to look behind that period, into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom; and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition. Many of the States, on the adoption of the Constitution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline, until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests. But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right. The power of Congress to establish Territorial Governments, and to prohibit the introduction of slavery therein, is the next point to be considered. After the cession of western territory by Virginia and other States, to the United States, the public attention was directed to the best mode of disposing of it for the general benefit. While in attendance on the Federal Convention, Mr. Madison, in a letter to Edmund Randolph, dated the 22d April, 1787, says: "Congress are deliberating on the plan most eligible for disposing of the western territory not yet surveyed. Some alteration will probably be made in the ordinance on that subject." And in the same letter he says: "The inhabitants of the Illinois complain of the land jobbers, &c., who are purchasing titles among them. Those of St. Vincent's complain of the defective criminal and civil justice among them, as well as of military protection." And on the next day he writes to Mr. Jefferson: "The government of the settlements on the Illinois and Wabash is a subject very perplexing in itself, and rendered more so by our ignorance of the many circumstances on which a right judgment depends. The inhabitants at those places claim protection against the savages, and some provision for both civil and criminal justice." In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention certain propositions, as the basis of a Federal Government, among which was the following: "_Resolved_, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the National Legislature less than the whole." Afterward, Mr. Madison submitted to the Convention, in order to be referred to the committee of detail, the following powers, as proper to be added to those of general legislation: "To dispose of the unappropriated lands of the United States. To institute temporary Governments for new States arising therein. To regulate affairs with the Indians, as well within as without the limits of the United States." Other propositions were made in reference to the same subjects, which it would be tedious to enumerate. Mr. Gouverneur Morris proposed the following: "The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution contained shall be so construed as to prejudice any claims either of the United States or of any particular State." This was adopted as a part of the Constitution, with two verbal alterations--Congress was substituted for Legislature, and the word _either_ was stricken out. In the organization of the new Government, but little revenue for a series of years was expected from commerce. The public lands were considered as the principal resource of the country for the payment of the Revolutionary debt. Direct taxation was the means relied on to pay the current expenses of the Government. The short period that occurred between the cession of western lands to the Federal Government by Virginia and other States, and the adoption of the Constitution, was sufficient to show the necessity of a proper land system and a temporary Government. This was clearly seen by propositions and remarks in the Federal Convention, some of which are above cited, by the passage of the Ordinance of 1787, and the adoption of that instrument by Congress, under the Constitution, which gave to it validity. It will be recollected that the deed of cession of western territory was made to the United States by Virginia in 1784, and that it required the territory ceded to be laid out into States, that the land should be disposed of for the common benefit of the States, and that all right, title, and claim, as well of soil as of jurisdiction, were ceded; and this was the form of cession from other States. On the 13th of July, the Ordinance of 1787 was passed, "for the government of the United States territory northwest of the river Ohio," with but one dissenting vote. This instrument provided there should be organized in the territory not less than three nor more than five States, designating their boundaries. It was passed while the Federal Convention was in session, about two months before the Constitution was adopted by the Convention. The members of the Convention must therefore have been well acquainted with the provisions of the Ordinance. It provided for a temporary Government, as initiatory to the formation of State Governments. Slavery was prohibited in the territory. Can any one suppose that the eminent men of the Federal Convention could have overlooked or neglected a matter so vitally important to the country, in the organization of temporary Governments for the vast territory northwest of the river Ohio? In the 3d section of the 4th article of the Constitution, they did make provision for the admission of new States, the sale of the public lands, and the temporary Government of the territory. Without a temporary Government, new States could not have been formed, nor could the public lands have been sold. If the third section were before us now for consideration for the first time, under the facts stated, I could not hesitate to say there was adequate legislative power given in it. The power to make all needful rules and regulations is a power to legislate. This no one will controvert, as Congress cannot make "rules and regulations," except by legislation. But it is argued that the word territory is used as synonymous with the word land; and that the rules and regulations of Congress are limited to the disposition of lands and other property belonging to the United States. That this is not the true construction of the section appears from the fact that in the first line of the section "the power to dispose of the public lands" is given expressly, and, in addition, to make all needful rules and regulations. The power to dispose of is complete in itself, and requires nothing more. It authorizes Congress to use the proper means within its discretion, and any further provision for this purpose would be a useless verbiage. As a composition, the Constitution is remarkably free from such a charge. In the discussion of the power of Congress to govern a Territory, in the case of the Atlantic Insurance Company _v._ Canter, (1 Peters, 511; 7 Curtis, 685,) Chief Justice Marshall, speaking for the court, said, in regard to the people of Florida, "they do not, however, participate in political power; they do not share in the Government till Florida shall become a State; in the mean time, Florida continues to be a Territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress 'to make all needful rules and regulations respecting the territory or other property belonging to the United States.'" And he adds, "perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory; whichever may be the source whence the power is derived, the possession of it is unquestioned." And in the close of the opinion, the court say, "in legislating for them [the Territories,] Congress exercises the combined powers of the General and State Governments." Some consider the opinion to be loose and inconclusive; others, that it is _obiter dicta_; and the last sentence is objected to as recognising absolute power in Congress over Territories. The learned and eloquent Wirt, who, in the argument of a cause before the court, had occasion to cite a few sentences from an opinion of the Chief Justice, observed, "no one can mistake the style, the words so completely match the thought." I can see no want of precision in the language of the Chief Justice; his meaning cannot be mistaken. He states, first, the third section as giving power to Congress to govern the Territories, and two other grounds from which the power may also be implied. The objection seems to be, that the Chief Justice did not say which of the grounds stated he considered the source of the power. He did not specifically state this, but he did say, "whichever may be the source whence the power is derived, the possession of it is unquestioned." No opinion of the court could have been expressed with a stronger emphasis; the power in Congress is unquestioned. But those who have undertaken to criticise the opinion, consider it without authority, because the Chief Justice did not designate specially the power. This is a singular objection. If the power be unquestioned, it can be a matter of no importance on which ground it is exercised. The opinion clearly was not _obiter dicta_. The turning point in the case was, whether Congress had power to authorize the Territorial Legislature of Florida to pass the law under which the Territorial court was established, whose decree was brought before this court for revision. The power of Congress, therefore, was the point in issue. The word "territory," according to Worcester, "means land, country, a district of country under a temporary Government." The words "territory or other property," as used, do imply, from the use of the pronoun other, that territory was used as descriptive of land; but does it follow that it was not used also as descriptive of a district of country? In both of these senses it belonged to the United States--as land, for the purpose of sale; as territory, for the purpose of government. But, if it be admitted that the word territory as used means land, and nothing but land, the power of Congress to organize a temporary Government is clear. It has power to make all needful regulations respecting the public lands, and the extent of those "needful regulations" depends upon the direction of Congress, where the means are appropriate to the end, and do not conflict with any of the prohibitions of the Constitution. If a temporary Government be deemed needful, necessary, requisite, or is wanted, Congress has power to establish it. This court says, in McCulloch _v._ The State of Maryland, (4 Wheat., 316,) "If a certain means to carry into effect any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance." The power to establish post offices and post roads gives power to Congress to make contracts for the transportation of the mail, and to punish all who commit depredations upon it in its transit, or at its places of distribution. Congress has power to regulate commerce, and, in the exercise of its discretion, to lay an embargo, which suspends commerce; so, under the same power, harbors, lighthouses, breakwaters, &c., are constructed. Did Chief Justice Marshall, in saying that Congress governed a Territory, by exercising the combined powers of the Federal and State Governments, refer to unlimited discretion? A Government which can make white men slaves? Surely, such a remark in the argument must have been inadvertently uttered. On the contrary, there is no power in the Constitution by which Congress can make either white or black men slaves. In organizing the Government of a Territory, Congress is limited to means appropriate to the attainment of the constitutional object. No powers can be exercised which are prohibited by the Constitution, or which are contrary to its spirit; so that, whether the object may be the protection of the persons and property of purchasers of the public lands, or of communities who have been annexed to the Union by conquest or purchase, they are initiatory to the establishment of State Governments, and no more power can be claimed or exercised than is necessary to the attainment of the end. This is the limitation of all the Federal powers. But Congress has no power to regulate the internal concerns of a State, as of a Territory; consequently, in providing for the Government of a Territory, to some extent, the combined powers of the Federal and State Governments are necessarily exercised. If Congress should deem slaves or free colored persons injurious to the population of a free Territory, as conducing to lessen the value of the public lands, or on any other ground connected with the public interest, they have the power to prohibit them from becoming settlers in it. This can be sustained on the ground of a sound national policy, which is so clearly shown in our history by practical results, that it would seem no considerate individual can question it. And, as regards any unfairness of such a policy to our Southern brethren, as urged in the argument, it is only necessary to say that, with one-fourth of the Federal population of the Union, they have in the slave States a larger extent of fertile territory than is included in the free States; and it is submitted, if masters of slaves be restricted from bringing them into free territory, that the restriction on the free citizens of non-slaveholding States, by bringing slaves into free territory, is four times greater than that complained of by the South. But, not only so; some three or four hundred thousand holders of slaves, by bringing them into free territory, impose a restriction on twenty millions of the free States. The repugnancy to slavery would probably prevent fifty or a hundred freemen from settling in a slave Territory, where one slaveholder would be prevented from settling in a free Territory. This remark is made in answer to the argument urged, that a prohibition of slavery in the free Territories is inconsistent with the continuance of the Union. Where a Territorial Government is established in a slave Territory, it has uniformly remained in that condition until the people form a State Constitution; the same course where the Territory is free, both parties acting in good faith, would be attended with satisfactory results. The sovereignty of the Federal Government extends to the entire limits of our territory. Should any foreign power invade our jurisdiction, it would be repelled. There is a law of Congress to punish our citizens for crimes committed in districts of country where there is no organized Government. Criminals are brought to certain Territories or States, designated in the law, for punishment. Death has been inflicted in Arkansas and in Missouri, on individuals, for murders committed beyond the limit of any organized Territory or State; and no one doubts that such a jurisdiction was rightfully exercised. If there be a right to acquire territory, there necessarily must be an implied power to govern it. When the military force of the Union shall conquer a country, may not Congress provide for the government of such country? This would be an implied power essential to the acquisition of new territory. This power has been exercised, without doubt of its constitutionality, over territory acquired by conquest and purchase. And when there is a large district of country within the United States, and not within any State Government, if it be necessary to establish a temporary Government to carry out a power expressly vested in Congress--as the disposition of the public lands--may not such Government be instituted by Congress? How do we read the Constitution? Is it not a practical instrument? In such cases, no implication of a power can arise which is inhibited by the Constitution, or which may be against the theory of its construction. As my opinion rests on the third section, these remarks are made as an intimation that the power to establish a temporary Government may arise, also, on the other two grounds stated in the opinion of the court in the insurance case, without weakening the third section. I would here simply remark, that the Constitution was formed for our whole country. An expansion or contraction of our territory required no change in the fundamental law. When we consider the men who laid the foundation of our Government and carried it into operation, the men who occupied the bench, who filled the halls of legislation and the Chief Magistracy, it would seem, if any question could be settled clear of all doubt, it was the power of Congress to establish Territorial Governments. Slavery was prohibited in the entire Northwestern Territory, with the approbation of leading men, South and North; but this prohibition was not retained when this ordinance was adopted for the government of Southern Territories, where slavery existed. In a late republication of a letter of Mr. Madison, dated November 27, 1819, speaking of this power of Congress to prohibit slavery in a Territory, he infers there is no such power, from the fact that it has not been exercised. This is not a very satisfactory argument against any power, as there are but few, if any, subjects on which the constitutional powers of Congress are exhausted. It is true, as Mr. Madison states, that Congress, in the act to establish a Government in the Mississippi Territory, prohibited the importation of slaves into it from foreign parts; but it is equally true, that in the act erecting Louisiana into two Territories, Congress declared, "it shall not be lawful for any person to bring into Orleans Territory, from any port or place within the limits of the United States, any slave which shall have been imported since 1798, or which may hereafter be imported, except by a citizen of the United States who settles in the Territory, under the penalty of the freedom of such slave." The inference of Mr. Madison, therefore, against the power of Congress, is of no force, as it was founded on a fact supposed, which did not exist. It is refreshing to turn to the early incidents of our history, and learn wisdom from the acts of the great men who have gone to their account. I refer to a report in the House of Representatives, by John Randolph, of Roanoke, as chairman of a committee, in March, 1803--fifty-four years ago. From the Convention held at Vincennes, in Indiana, by their President, and from the people of the Territory, a petition was presented to Congress, praying the suspension of the provision which prohibited slavery in that Territory. The report stated "that the rapid population of the State of Ohio sufficiently evinces, in the opinion of your committee, that the labor of slaves is not necessary to promote the growth and settlement of colonies in that region. That this labor, demonstrably the dearest of any, can only be employed to advantage in the cultivation of products more valuable than any known to that quarter of the United States; that the committee deem it highly dangerous and inexpedient to impair a provision wisely calculated to promote the happiness and prosperity of the Northwestern country, and to give strength and security to that extensive frontier. In the salutary operation of this sagacious and benevolent restraint, it is believed that the inhabitants will, at no very distant day, find ample remuneration for a temporary privation of labor and of emigration." (1 vol. State Papers, Public Lands, 160.) The judicial mind of this country, State and Federal, has agreed on no subject, within its legitimate action, with equal unanimity, as on the power of Congress to establish Territorial Governments. No court, State or Federal, no judge or statesman, is known to have had any doubts on this question for nearly sixty years after the power was exercised. Such Governments have been established from the sources of the Ohio to the Gulf of Mexico, extending to the Lakes on the north and the Pacific Ocean on the west, and from the lines of Georgia to Texas. Great interests have grown up under the Territorial laws over a country more than five times greater in extent than the original thirteen States; and these interests, corporate or otherwise, have been cherished and consolidated by a benign policy, without any one supposing the law-making power had united with the Judiciary, under the universal sanction of the whole country, to usurp a jurisdiction which did not belong to them. Such a discovery at this late date is more extraordinary than anything which has occurred in the judicial history of this or any other country. Texas, under a previous organization, was admitted as a State; but no State can be admitted into the Union which has not been organized under some form of government. Without temporary Governments, our public lands could not have been sold, nor our wildernesses reduced to cultivation, and the population protected; nor could our flourishing States, West and South, have been formed. What do the lessons of wisdom and experience teach, under such circumstances, if the new light, which has so suddenly and unexpectedly burst upon us, be true? Acquiescence; acquiescence under a settled construction of the Constitution for sixty years, though it may be erroneous; which has secured to the country an advancement and prosperity beyond the power of computation. An act of James Madison, when President, forcibly illustrates this policy. He had made up his opinion that Congress had no power under the Constitution to establish a National Bank. In 1815, Congress passed a bill to establish a bank. He vetoed the bill, on objections other than constitutional. In his message, he speaks as a wise statesman and Chief Magistrate, as follows: "Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank, as being precluded, in my judgment, by the repeated recognitions under varied circumstances of the validity of such an institution, in acts of the Legislative, Executive, and Judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation." Has this impressive lesson of practical wisdom become lost to the present generation? If the great and fundamental principles of our Government are never to be settled, there can be no lasting prosperity. The Constitution will become a floating waif on the billows of popular excitement. The prohibition of slavery north of thirty-six degrees thirty minutes, and of the State of Missouri, contained in the act admitting that State into the Union, was passed by a vote of 134, in the House of Representatives, to 42. Before Mr. Monroe signed the act, it was submitted by him to his Cabinet, and they held the restriction of slavery in a Territory to be within the constitutional powers of Congress. It would be singular, if in 1804 Congress had power to prohibit the introduction of slaves in Orleans Territory from any other part of the Union, under the penalty of freedom to the slave, if the same power embodied in the Missouri compromise, could not be exercised in 1820. But this law of Congress, which prohibits slavery north of Missouri and of thirty-six degrees thirty minutes, is declared to have been null and void by my brethren. And this opinion is founded mainly, as I understand, on the distinction drawn between the ordinance of 1787 and the Missouri compromise line. In what does the distinction consist? The ordinance, it is said, was a compact entered into by the confederated States before the adoption of the Constitution; and that in the cession of territory authority was given to establish a Territorial Government. It is clear that the ordinance did not go into operation by virtue of the authority of the Confederation, but by reason of its modification and adoption by Congress under the Constitution. It seems to be supposed, in the opinion of the court, that the articles of cession placed it on a different footing from territories subsequently acquired. I am unable to perceive the force of this distinction. That the ordinance was intended for the government of the Northwestern Territory, and was limited to such Territory, is admitted. It was extended to Southern Territories, with modifications, by acts of Congress, and to some Northern Territories. But the ordinance was made valid by the act of Congress, and without such act could have been of no force. It rested for its validity on the act of Congress, the same, in my opinion, as the Missouri compromise line. If Congress may establish a Territorial Government in the exercise of its discretion, it is a clear principle that a court cannot control that discretion. This being the case, I do not see on what ground the act is held to be void. It did not purport to forfeit property, or take it for public purposes. It only prohibited slavery; in doing which, it followed the ordinance of 1787. I will now consider the fourth head, which is: "The effect of taking slaves into a State or Territory, and so holding them, where slavery is prohibited." If the principle laid down in the case of Prigg _v._ The State of Pennsylvania is to be maintained, and it is certainly to be maintained until overruled, as the law of this court, there can be no difficulty on this point. In that case, the court says: "The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws." If this be so, slavery can exist nowhere except under the authority of law, founded on usage having the force of law, or by statutory recognition. And the court further says: "It is manifest, from this consideration, that if the Constitution had not contained the clause requiring the rendition of fugitives from labor, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters." Now, if a slave abscond, he may be reclaimed; but if he accompany his master into a State or Territory where slavery is prohibited, such slave cannot be said to have left the service of his master where his services were legalized. And if slavery be limited to the range of the territorial laws, how can the slave be coerced to serve in a State or Territory, not only without the authority of law, but against its express provisions? What gives the master the right to control the will of his slave? The local law, which exists in some form. But where there is no such law, can the master control the will of the slave by force? Where no slavery exists, the presumption, without regard to color, is in favor of freedom. Under such a jurisdiction, may the colored man be levied on as the property of his master by a creditor? On the decease of the master, does the slave descend to his heirs as property? Can the master sell him? Any one or all of these acts may be done to the slave, where he is legally held to service. But where the law does not confer this power, it cannot be exercised. Lord Mansfield held that a slave brought into England was free. Lord Stowell agreed with Lord Mansfield in this respect, and that the slave could not be coerced in England; but on her voluntary return to Antigua, the place of her slave domicil, her former status attached. The law of England did not prohibit slavery, but did not authorize it. The jurisdiction which prohibits slavery is much stronger in behalf of the slave within it, than where it only does not authorize it. By virtue of what law is it, that a master may take his slave into free territory, and exact from him the duties of a slave? The law of the Territory does not sanction it. No authority can be claimed under the Constitution of the United States, or any law of Congress. Will it be said that the slave is taken as property, the same as other property which the master may own? To this I answer, that colored persons are made property by the law of the State, and no such power has been given to Congress. Does the master carry with him the law of the State from which he removes into the Territory? and does that enable him to coerce his slave in the Territory? Let us test this theory. If this may be done by a master from one slave State, it may be done by a master from every other slave State. This right is supposed to be connected with the person of the master, by virtue of the local law. Is it transferable? May it be negotiated, as a promissory note or bill of exchange? If it be assigned to a man from a free State, may he coerce the slave by virtue of it? What shall this thing be denominated? Is it personal or real property? Or is it an indefinable fragment of sovereignty, which every person carries with him from his late domicil? One thing is certain, that its origin has been very recent, and it is unknown to the laws of any civilized country. A slave is brought to England from one of its islands, where slavery was introduced and maintained by the mother country. Although there is no law prohibiting slavery in England, yet there is no law authorizing it; and, for near a century, its courts have declared that the slave there is free from the coercion of the master. Lords Mansfield and Stowell agree upon this point, and there is no dissenting authority. There is no other description of property which was not protected in England, brought from one of its slave islands. Does not this show that property in a human being does not arise from nature or from the common law, but, in the language of this court, "it is a mere municipal regulation, founded upon and limited to the range of the territorial laws?" This decision is not a mere argument, but it is the end of the law, in regard to the extent of slavery. Until it shall be overturned, it is not a point for argument; it is obligatory on myself and my brethren, and on all judicial tribunals over which this court exercises an appellate power. It is said the Territories are common property of the States, and that every man has a right to go there with his property. This is not controverted. But the court say a slave is not property beyond the operation of the local law which makes him such. Never was a truth more authoritatively and justly uttered by man. Suppose a master of a slave in a British island owned a million of property in England; would that authorize him to take his slaves with him to England? The Constitution, in express terms, recognises the _status_ of slavery as founded on the municipal law: "No person held to service or labor in one State, _under the laws thereof_, escaping into another, shall," &c. Now, unless the fugitive escape on a place where, by the municipal law, he is held to labor, this provision affords no remedy to the master. What can be more conclusive than this? Suppose a slave escape from a Territory where slavery is not authorized by law, can he be reclaimed? In this case, a majority of the court have said that a slave may be taken by his master into a Territory of the United States, the same as a horse, or any other kind of property. It is true, this was said by the court, as also many other things, which are of no authority. Nothing that has been said by them, which has not a direct bearing on the jurisdiction of the court, against which they decided, can be considered as authority. I shall certainly not regard it as such. The question of jurisdiction, being before the court, was decided by them authoritatively, but nothing beyond that question. A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence. Under this head I shall chiefly rely on the decisions of the Supreme Courts of the Southern States, and especially of the State of Missouri. In the first and second sections of the sixth article of the Constitution of Illinois, it is declared that neither slavery nor involuntary servitude shall hereafter be introduced into this State, otherwise than for the punishment of crimes whereof the party shall have been duly convicted; and in the second section it is declared that any violation of this article shall effect the emancipation of such person from his obligation to service. In Illinois, a right of transit through the State is given the master with his slaves. This is a matter which, as I suppose, belongs exclusively to the State. The Supreme Court of Illinois, in the case of Jarrot _v._ Jarrot, (2 Gilmer, 7,) said: "After the conquest of this Territory by Virginia, she ceded it to the United States, and stipulated that the titles and possessions, rights and liberties, of the French settlers, should be guarantied to them. This, it has been contended, secured them in the possession of those negroes as slaves which they held before that time, and that neither Congress nor the Convention had power to deprive them of it; or, in other words, that the ordinance and Constitution should not be so interpreted and understood as applying to such slaves, when it is therein declared that there shall be neither slavery nor involuntary servitude in the Northwest Territory, nor in the State of Illinois, otherwise than in the punishment of crimes. But it was held that those rights could not be thus protected, but must yield to the ordinance and Constitution." The first slave case decided by the Supreme Court of Missouri, contained in the reports, was Winny _v._ Whitesides, (1 Missouri Rep., 473,) at October term, 1824. It appeared that, more than twenty-five years before, the defendant, with her husband, had removed from Carolina to Illinois, and brought with them the plaintiff; that they continued to reside in Illinois three or four years, retaining the plaintiff as a slave; after which, they removed to Missouri, taking her with them. The court held, that if a slave be detained in Illinois until he be entitled to freedom, the right of the owner does not revive when he finds the negro in a slave State. That when a slave is taken to Illinois by his owner, who takes up his residence there, the slave is entitled to freedom. In the case of Lagrange [Transcriber's Note: La Grange] _v._ Chouteau, (2 Missouri Rep., 20, at May term, 1828,) it was decided that the ordinance of 1787 was intended as a fundamental law for those who may choose to live under it, rather than as a penal statute. That any sort of residence contrived or permitted by the legal owner of the slave, upon the faith of secret trusts or contracts, in order to defeat or evade the ordinance, and thereby introduce slavery _de facto_, would entitle such slave to freedom. In Julia _v._ McKinney, (3 Missouri Rep., 279,) it was held, where a slave was settled in the State of Illinois, but with an intention on the part of the owner to be removed at some future day, that hiring said slave to a person to labor for one or two days, and receiving the pay for the hire, the slave is entitled to her freedom, under the second section of the sixth article of the Constitution of Illinois. Rachel _v._ Walker (4 Missouri Rep., 350, June term, 1836) is a case involving, in every particular, the principles of the case before us. Rachel sued for her freedom; and it appeared that she had been bought as a slave in Missouri, by Stockton, an officer of the army, taken to Fort Snelling, where he was stationed, and she was retained there as a slave a year; and then Stockton removed to Prairie du Chien, taking Rachel with him as a slave, where he continued to hold her three years, and then he took her to the State of Missouri, and sold her as a slave. "Fort Snelling was admitted to be on the west side of the Mississippi river, and north of the State of Missouri, in the territory of the United States. That Prairie du Chien was in the Michigan Territory, on the east side of the Mississippi river. Walker, the defendant, held Rachel under Stockton." The court said, in this case: "The officer lived in Missouri Territory, at the time he bought the slave; he sent to a slaveholding country and procured her; this was his voluntary act, done without any other reason than that of his convenience; and he and those claiming under him must be holden to abide the consequences of introducing slavery both in Missouri Territory and Michigan, contrary to law; and on that ground Rachel was declared to be entitled to freedom." In answer to the argument that, as an officer of the army, the master had a right to take his slave into free territory, the court said no authority of law or the Government compelled him to keep the plaintiff there as a slave. "Shall it be said, that because an officer of the army owns slaves in Virginia, that when, as officer and soldier, he is required to take the command of a fort in the non-slaveholding States or Territories, he thereby has a right to take with him as many slaves as will suit his interests or convenience? It surely cannot be law. If this be true, the court say, then it is also true that the convenience or supposed convenience of the officer repeals, as to him and others who have the same character, the ordinance and the act of 1821, admitting Missouri into the Union, and also the prohibition of the several laws and Constitutions of the non-slaveholding States." In Wilson _v._ Melvin, (4 Missouri R., 592,) it appeared the defendant left Tennessee with an intention of residing in Illinois, taking his negroes with him. After a month's stay in Illinois, he took his negroes to St. Louis, and hired them, then returned to Illinois. On these facts, the inferior court instructed the jury that the defendant was a sojourner in Illinois. This the Supreme Court held was error, and the judgment was reversed. The case of Dred Scott _v._ Emerson (15 Missouri R., 682, March term, 1852) will now be stated. This case involved the identical question before us, Emerson having, since the hearing, sold the plaintiff to Sandford, the defendant. Two of the judges ruled the case, the Chief Justice dissenting. It cannot be improper to state the grounds of the opinion of the court, and of the dissent. The court say: "Cases of this kind are not strangers in our court. Persons have been frequently here adjudged to be entitled to their freedom, on the ground that their masters held them in slavery in Territories or States in which that institution is prohibited. From the first case decided in our court, it might be inferred that this result was brought about by a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of master and slave did not exist. But subsequent cases base the right to 'exact the forfeiture of emancipation,' as they term it, on the ground, it would seem, that it was the duty of the courts of this State to carry into effect the Constitution and laws of other States and Territories, regardless of the rights, the policy, or the institutions, of the people of this State." And the court say that the States of the Union, in their municipal concerns, are regarded as foreign to each other; that the courts of one State do not take notice of the laws of other States, unless proved as facts, and that every State has the right to determine how far its comity to other States shall extend; and it is laid down, that when there is no act of manumission decreed to the free State, the courts of the slave States cannot be called to give effect to the law of the free State. Comity, it alleges, between States, depends upon the discretion of both, which may be varied by circumstances. And it is declared by the court, "that times are not as they were when the former decisions on this subject were made." Since then, not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures whose inevitable consequence must be the overthrow and destruction of our Government. Under such circumstances, it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others. Chief Justice Gamble dissented from the other two judges. He says: "In every slaveholding State in the Union, the subject of emancipation is regulated by statute; and the forms are prescribed in which it shall be effected. Whenever the forms required by the laws of the State in which the master and slave are resident are complied with, the emancipation is complete, and the slave is free. If the right of the person thus emancipated is subsequently drawn in question in another State, it will be ascertained and determined by the law of the State in which the slave and his former master resided; and when it appears that such law has been complied with, the right to freedom will be fully sustained in the courts of all the slaveholding States, although the act of emancipation may not be in the form required by law in which the court sits. "In all such cases, courts continually administer the law of the country where the right was acquired; and when that law becomes known to the court, it is just as much a matter of course to decide the rights of the parties according to its requirements, as it is to settle the title of real estate situated in our State by its own laws." This appears to me a most satisfactory answer to the argument of the court. Chief Justice continues: "The perfect equality of the different States lies at the foundation of the Union. As the institution of slavery in the States is one over which the Constitution of the United States gives no power to the General Government, it is left to be adopted or rejected by the several States, as they think best; nor can any one State, or number of States, claim the right to interfere with any other State upon the question of admitting or excluding this institution. "A citizen of Missouri, who removes with his slave to Illinois, has no right to complain that the fundamental law of that State to which he removes, and in which he makes his residence, dissolves the relation between him and his slave. It is as much his own voluntary act, as if he had executed a deed of emancipation. No one can pretend ignorance of this constitutional provision, and," he says, "the decisions which have heretofore been made in this State, and in many other slaveholding States, give effect to this and other similar provisions, on the ground that the master, by making the free State the residence of his slave, has submitted his right to the operation of the law of such State; and this," he says, "is the same in law as a regular deed of emancipation." He adds: "I regard the question as conclusively settled by repeated adjudications of this court, and, if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to overturn them, than I would any other series of decisions by which the law of any other question was settled. There is with me," he says, "nothing in the law relating to slavery which distinguishes it from the law on any other subject, or allows any more accommodation to the temporary public excitements which are gathered around it." "In this State," he says, "it has been recognised from the beginning of the Government as a correct position in law, that a master who takes his slave to reside in a State or Territory where slavery is prohibited, thereby emancipates his slave." These decisions, which come down to the year 1837, seemed to have so fully settled the question, that since that time there has been no case bringing it before the court for any reconsideration, until the present. In the case of Winny _v._ Whitesides, the question was made in the argument, "whether one nation would execute the penal laws of another," and the court replied in this language, (Huberus, quoted in 4 Dallas,) which says, "personal rights or disabilities obtained or communicated by the laws of any particular place are of a nature which accompany the person wherever he goes;" and the Chief Justice observed, in the case of Rachel _v._ Walker, the act of Congress called the Missouri compromise was held as operative as the ordinance of 1787. When Dred Scott, his wife and children, were removed from Fort Snelling to Missouri, in 1838, they were free, as the law was then settled, and continued for fourteen years afterwards, up to 1852, when the above decision was made. Prior to this, for nearly thirty years, as Chief Justice Gamble declares, the residence of a master with his slave in the State of Illinois, or in the Territory north of Missouri, where slavery was prohibited by the act called the Missouri compromise, would manumit the slave as effectually as if he had executed a deed of emancipation; and that an officer of the army who takes his slave into that State or Territory, and holds him there as a slave, liberates him the same as any other citizen--and down to the above time it was settled by numerous and uniform decisions; and that on the return of the slave to Missouri, his former condition of slavery did not attach. Such was the settled law of Missouri until the decision of Scott and Emerson. In the case of Sylvia _v._ Kirby, (17 Misso. Rep., 434,) the court followed the above decision, observing it was similar in all respects to the case of Scott and Emerson. This court follows the established construction of the statutes of a State by its Supreme Court. Such a construction is considered as a part of the statute, and we follow it to avoid two rules of property in the same State. But we do not follow the decisions of the Supreme Court of a State beyond a statutory construction as a rule of decision for this court. State decisions are always viewed with respect and treated as authority; but we follow the settled construction of the statutes, not because it is of binding authority, but in pursuance of a rule of judicial policy. But there is no pretence that the case of Dred Scott _v._ Emerson turned upon the construction of a Missouri statute; nor was there any established rule of property which could have rightfully influenced the decision. On the contrary, the decision overruled the settled law for near thirty years. This is said by my brethren to be a Missouri question; but there is nothing which gives it this character, except that it involves the right to persons claimed as slaves who reside in Missouri, and the decision was made by the Supreme Court of that State. It involves a right claimed under an act of Congress and the Constitution of Illinois, and which cannot be decided without the consideration and construction of those laws. But the Supreme Court of Missouri held, in this case, that it will not regard either of those laws, without which there was no case before it; and Dred Scott, having been a slave, remains a slave. In this respect it is admitted this is a Missouri question--a case which has but one side, if the act of Congress and the Constitution of Illinois are not recognised. And does such a case constitute a rule of decision for this court--a case to be followed by this court? The course of decision so long and so uniformly maintained established a comity or law between Missouri and the free States and Territories where slavery was prohibited, which must be somewhat regarded in this case. Rights sanctioned for twenty-eight years ought not and cannot be repudiated, with any semblance of justice, by one or two decisions, influenced, as declared, by a determination to counteract the excitement against slavery in the free States. The courts of Louisiana having held, for a series of years, that where a master took his slave to France, or any free State, he was entitled to freedom, and that on bringing him back the status of slavery did not attach, the Legislature of Louisiana declared by an act that the slave should not be made free under such circumstances. This regulated the rights of the master from the time the act took effect. But the decision of the Missouri court, reversing a former decision, affects all previous decisions, technically, made on the same principles, unless such decisions are protected by the lapse of time or the statute of limitations. Dred Scott and his family, beyond all controversy, were free under the decisions made for twenty-eight years, before the case of Scott _v._ Emerson. This was the undoubted law of Missouri for fourteen years after Scott and his family were brought back to that State. And the grave question arises, whether this law may be so disregarded as to enslave free persons. I am strongly inclined to think that a rule of decision so well settled as not to be questioned, cannot be annulled by a single decision of the court. Such rights may be inoperative under the decision in future; but I cannot well perceive how it can have the same effect in prior cases. It is admitted, that when a former decision is reversed, the technical effect of the judgment is to make all previous adjudications on the same question erroneous. But the case before us was not that the law had been erroneously construed, but that, under the circumstances which then existed, that law would not be recognised; and the reason for this is declared to be the excitement against the institution of slavery in the free States. While I lament this excitement as much as any one, I cannot assent that it shall be made a basis of judicial action. In 1816, the common law, by statute, was made a part of the law of Missouri; and that includes the great principles of international law. These principles cannot be abrogated by judicial decisions. It will require the same exercise of power to abolish the common law, as to introduce it. International law is founded in the opinions generally received and acted on by civilized nations, and enforced by moral sanctions. It becomes a more authoritative system when it results from special compacts, founded on modified rules, adapted to the exigencies of human society; it is in fact an international morality, adapted to the best interests of nations. And in regard to the States of this Union, on the subject of slavery, it is eminently fitted for a rule of action, subject to the Federal Constitution. "The laws of nations are but the natural rights of man applied to nations." (Vattel.) If the common law have the force of a statutory enactment in Missouri, it is clear, as it seems to me, that a slave who, by a residence in Illinois in the service of his master, becomes entitled to his freedom, cannot again be reduced to slavery by returning to his former domicil in a slave State. It is unnecessary to say what legislative power might do by a general act in such a case, but it would be singular if a freeman could be made a slave by the exercise of a judicial discretion. And it would be still more extraordinary if this could be done, not only in the absence of special legislation, but in a State where the common law is in force. It is supposed by some, that the third article in the treaty of cession of Louisiana to this country, by France, in 1803, may have some bearing on this question. The article referred to provides, "that the inhabitants of the ceded territory shall be incorporated into the Union, and enjoy all the advantages of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion they profess." As slavery existed in Louisiana at the time of the cession, it is supposed this is a guaranty that there should be no change in its condition. The answer to this is, in the first place, that such a subject does not belong to the treaty-making power; and any such arrangement would have been nugatory. And, in the second place, by no admissible construction can the guaranty be carried further than the protection of property in slaves at that time in the ceded territory. And this has been complied with. The organization of the slave States of Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana at the time of the cession. This removes every ground of objection under the treaty. There is therefore no pretence, growing out of the treaty, that any part of the territory of Louisiana, as ceded, beyond the organized States, is slave territory. Under the fifth head, we were to consider whether the status of slavery attached to the plaintiff and wife, on their return to Missouri. This doctrine is not asserted in the late opinion of the Supreme Court of Missouri, and up to 1852 the contrary doctrine was uniformly maintained by that court. In its late decision, the court say that it will not give effect in Missouri to the laws of Illinois, or the law of Congress called the Missouri compromise. This was the effect of the decision, though its terms were, that the court would not take notice, judicially, of those laws. In 1851, the Court of Appeals of South Carolina recognised the principle, that a slave, being taken to a free State, became free. (Commonwealth _v._ Pleasants, 10 Leigh Rep., 697.) In Betty _v._ Horton, the Court of Appeals held that the freedom of the slave was acquired by the action of the laws of Massachusetts, by the said slave being taken there. (5 Leigh Rep., 615.) The slave States have generally adopted the rule, that where the master, by a residence with his slave in a State or Territory where slavery is prohibited, the slave was entitled to his freedom everywhere. This was the settled doctrine of the Supreme Court of Missouri. It has been so held in Mississippi, in Virginia, in Louisiana, formerly in Kentucky, Maryland, and in other States. The law, where a contract is made and is to be executed, governs it. This does not depend upon comity, but upon the law of the contract. And if, in the language of the Supreme Court of Missouri, the master, by taking his slave to Illinois, and employing him there as a slave, emancipates him as effectually as by a deed of emancipation, is it possible that such an act is not matter for adjudication in any slave State where the master may take him? Does not the master assent to the law, when he places himself under it in a free State? The States of Missouri and Illinois are bounded by a common line. The one prohibits slavery, the other admits it. This has been done by the exercise of that sovereign power which appertains to each. We are bound to respect the institutions of each, as emanating from the voluntary action of the people. Have the people of either any right to disturb the relations of the other? Each State rests upon the basis of its own sovereignty, protected by the Constitution. Our Union has been the foundation of our prosperity and national glory. Shall we not cherish and maintain it? This can only be done by respecting the legal rights of each State. If a citizen of a free State shall entice or enable a slave to escape from the service of his master, the law holds him responsible, not only for the loss of the slave, but he is liable to be indicted and fined for the misdemeanor. And I am bound here to say, that I have never found a jury in the four States which constitute my circuit, which have not sustained this law, where the evidence required them to sustain it. And it is proper that I should also say, that more cases have arisen in my circuit, by reason of its extent and locality, than in all other parts of the Union. This has been done to vindicate the sovereign rights of the Southern States, and protect the legal interests of our brethren of the South. Let these facts be contrasted with the case now before the court. Illinois has declared in the most solemn and impressive form that there shall be neither slavery nor involuntary servitude in that State, and that any slave brought into it, with a view of becoming a resident, shall be emancipated. And effect has been given to this provision of the Constitution by the decision of the Supreme Court of that State. With a full knowledge of these facts, a slave is brought from Missouri to Rock Island, in the State of Illinois, and is retained there as a slave for two years, and then taken to Fort Snelling, where slavery is prohibited by the Missouri compromise act, and there he is detained two years longer in a state of slavery. Harriet, his wife, was also kept at the same place four years as a slave, having been purchased in Missouri. They were then removed to the State of Missouri, and sold as slaves, and in the action before us they are not only claimed as slaves, but a majority of my brethren have held that on their being returned to Missouri the status of slavery attached to them. I am not able to reconcile this result with the respect due to the State of Illinois. Having the same rights of sovereignty as the State of Missouri in adopting a Constitution, I can perceive no reason why the institutions of Illinois should not receive the same consideration as those of Missouri. Allowing to my brethren the same right of judgment that I exercise myself, I must be permitted to say that it seems to me the principle laid down will enable the people of a slave State to introduce slavery into a free State, for a longer or shorter time, as may suit their convenience; and by returning the slave to the State whence he was brought, by force or otherwise, the status of slavery attaches, and protects the rights of the master, and defies the sovereignty of the free State. There is no evidence before us that Dred Scott and his family returned to Missouri voluntarily. The contrary is inferable from the agreed case: "In the year 1838, Dr. Emerson removed the plaintiff and said Harriet, and their daughter Eliza, from Fort Snelling to the State of Missouri, where they have ever since resided." This is the agreed case; and can it be inferred from this that Scott and family returned to Missouri voluntarily? He was removed; which shows that he was passive, as a slave, having exercised no volition on the subject. He did not resist the master by absconding or force. But that was not sufficient to bring him within Lord Stowell's decision; he must have acted voluntarily. It would be a mockery of law and an outrage on his rights to coerce his return, and then claim that it was voluntary, and on that ground that his former status of slavery attached. If the decision be placed on this ground, it is a fact for a jury to decide, whether the return was voluntary, or else the fact should be distinctly admitted. A presumption against the plaintiff in this respect, I say with confidence, is not authorized from the facts admitted. In coming to the conclusion that a voluntary return by Grace to her former domicil, slavery attached, Lord Stowell took great pains to show that England forced slavery upon her colonies, and that it was maintained by numerous acts of Parliament and public policy, and, in short, that the system of slavery was not only established by Great Britain in her West Indian colonies, but that it was popular and profitable to many of the wealthy and influential people of England, who were engaged in trade, or owned and cultivated plantations in the colonies. No one can read his elaborate views, and not be struck with the great difference between England and her colonies, and the free and slave States of this Union. While slavery in the colonies of England is subject to the power of the mother country, our States, especially in regard to slavery, are independent, resting upon their own sovereignties, and subject only to international laws, which apply to independent States. In the case of Williams, who was a slave in Granada, having run away, came to England, Lord Stowell said: "The four judges all concur in this--that he was a slave in Granada, though a free man in England, and he would have continued a free man in all other parts of the world except Granada." Strader _v._ Graham (10 Howard, 82, and 18 Curtis, 305) has been cited as having a direct bearing in the case before us. In that case the court say: "It was exclusively in the power of Kentucky to determine, for itself, whether the employment of slaves in another State should or should not make them free on their return." No question was before the court in that case, except that of jurisdiction. And any opinion given on any other point is _obiter dictum_, and of no authority. In the conclusion of his opinion, the Chief Justice said: "In every view of the subject, therefore, this court has no jurisdiction of the case, and the writ of error must on that ground be dismissed." In the case of Spencer _v._ Negro Dennis, (8 Gill's Rep., 321,) the court say: "Once free, and always free, is the maxim of Maryland law upon the subject. Freedom having once vested, by no compact between the master and the liberated slave, nor by any condition subsequent, attached by the master to the gift of freedom, can a state of slavery be reproduced." In Hunter _v._ Bulcher [Transcriber's Note: Fulcher], (1 Leigh, 172:) "By a statute of Maryland of 1796, all slaves brought into that State to reside are declared free; a Virginian-born slave is carried by his master to Maryland; the master settled there, and keeps the slave there in bondage for twelve years, the statute in force all the time; then he brings him as a slave to Virginia, and sells him there. Adjudged, in an action brought by the man against the purchaser, that he is free." Judge Kerr, in the case, says: "Agreeing, as I do, with the general view taken in this case by my brother Green, I would not add a word, but to mark the exact extent to which I mean to go. The law of Maryland having enacted that slaves carried into that State for sale or to reside shall be free, and the owner of the slave here having carried him to Maryland, and voluntarily submitting himself and the slave to that law, it governs the case." In every decision of a slave case prior to that of Dred Scott _v._ Emerson, the Supreme Court of Missouri considered it as turning upon the Constitution of Illinois, the ordinance of 1787, or the Missouri compromise act of 1820. The court treated these acts as in force, and held itself bound to execute them, by declaring the slave to be free who had acquired a domicil under them with the consent of his master. The late decision reversed this whole line of adjudication, and held that neither the Constitution and laws of the States, nor acts of Congress in relation to Territories, could be judicially noticed by the Supreme Court of Missouri. This is believed to be in conflict with the decisions of all the courts in the Southern States, with some exceptions of recent cases. In Marie Louise _v._ Morat et al., (9 Louisiana Rep., 475,) [Transcriber's Note: correct citation is Louise v. Marot, 9 La. 473] it was held, where a slave having been taken to the kingdom of France or other country by the owner, where slavery is not tolerated, operates on the condition of the slave, and produces immediate emancipation; and that, where a slave thus becomes free, the master cannot reduce him again to slavery. Josephine _v._ Poultney, (Louisiana Annual Rep., 329,) "where the owner removes with a slave into a State in which slavery is prohibited, with the intention of residing there, the slave will be thereby emancipated, and their subsequent return to the State of Louisiana cannot restore the relation of master and slave." To the same import are the cases of Smith _v._ Smith, (13 Louisiana Rep., 441; Thomas _v._ Generis, Louisiana Rep., 483; Harry et al. _v._ Decker and Hopkins, Walker's Mississippi Rep., 36.) It was held that, "slaves within the jurisdiction of the Northwestern Territory became freemen by virtue of the ordinance of 1787, and can assert their claim to freedom in the courts of Mississippi." (Griffith _v._ Fanny, 1 Virginia Rep., 143.) It was decided that a negro held in servitude in Ohio, under a deed executed in Virginia, is entitled to freedom by the Constitution of Ohio. The case of Rhodes _v._ Bell (2 Howard, 307; 15 Curtis, 152) involved the main principle in the case before us. A person residing in Washington city purchased a slave in Alexandria, and brought him to Washington. Washington continued under the law of Maryland, Alexandria under the law of Virginia. The act of Maryland of November, 1796, (2 Maxcy's Laws, 351,) declared any one who shall bring any negro, mulatto or other slave, into Maryland, such slave should be free. The above slave, by reason of his being brought into Washington city, was declared by this court to be free. This, it appears to me, is a much stronger case against the slave than the facts in the case of Scott. In Bush _v._ White, (3 Monroe, 104,) the court say: "That the ordinance was paramount to the Territorial laws, and restrained the legislative power there as effectually as a Constitution in an organized State. It was a public act of the Legislature of the Union, and a part of the supreme law of the land; and, as such, this court is as much bound to take notice of it as it can be of any other law." In the case of Rankin _v._ Lydia, before cited, Judge Mills, speaking for the Court of Appeals of Kentucky, says: "If, by the positive provision in our code, we can and must hold our slaves in the one case, and statutory provisions equally positive decide against that right in the other, and liberate the slave, he must, by an authority equally imperious, be declared free. Every argument which supports the right of the master on one side, based upon the force of written law, must be equally conclusive in favor of the slave, when he can point out in the statute the clause which secures his freedom." And he further said: "Free people of color in all the States are, it is believed, quasi citizens, or, at least, denizens. Although none of the States may allow them the privilege of office and suffrage, yet all other civil and conventional rights are secured to them; at least, such rights were evidently secured to them by the ordinance in question for the government of Indiana. If these rights are vested in that or any other portion of the United States, can it be compatible with the spirit of our confederated Government to deny their existence in any other part? Is there less comity existing between State and State, or State and Territory, than exists between the despotic Governments of Europe?" These are the words of a learned and great judge, born and educated in a slave State. I now come to inquire, under the sixth and last head, "whether the decisions of the Supreme Court of Missouri, on the question before us, are binding on this court." While we respect the learning and high intelligence of the State courts, and consider their decisions, with others, as authority, we follow them only where they give a construction to the State statutes. On this head, I consider myself fortunate in being able to turn to the decision of this court, given by Mr. Justice Grier, in Pease _v._ Peck, a case from the State of Michigan, (18 Howard, 589,) decided in December term, 1855. Speaking for the court, Judge Grier said: "We entertain the highest respect for that learned court, (the Supreme Court of Michigan) and in any question affecting the construction of their own laws, where we entertain any doubt, would be glad to be relieved from doubt and responsibility by reposing on their decision. There are, it is true, many dicta to be found in our decisions, averring that the courts of the United States are bound to follow the decisions of the State courts on the construction of their own laws. But although this may be correct, yet a rather strong expression of a general rule, it cannot be received as the annunciation of a maxim of universal application. Accordingly, our reports furnish many cases of exceptions to it. In all cases where there is a settled construction of the laws of a State, by its highest judicature established by admitted precedent, it is the practice of the courts of the United States to receive and adopt it, without criticism or further inquiry. When the decisions of the State court are not consistent, we do not feel bound to follow the last, if it is contrary to our own convictions; and much more is this the case where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines subversive of former safe precedent." These words, it appears to me, have a stronger application to the case before us than they had to the cause in which they were spoken as the opinion of this court; and I regret that they do not seem to be as fresh in the recollection of some of my brethren as in my own. For twenty-eight years, the decisions of the Supreme Court of Missouri were consistent on all the points made in this case. But this consistent course was suddenly terminated, whether by some new light suddenly springing up, or an excited public opinion, or both, it is not necessary to say. In the case of Scott _v._ Emerson, in 1852, they were overturned and repudiated. This, then, is the very case in which seven of my brethren declared they would not follow the last decision. On this authority I may well repose. I can desire no other or better basis. But there is another ground which I deem conclusive, and which I will re-state. The Supreme Court of Missouri refused to notice the act of Congress or the Constitution of Illinois, under which Dred Scott, his wife and children, claimed that they are entitled to freedom. This being rejected by the Missouri court, there was no case before it, or least it was a case with only one side. And this is the case which, in the opinion of this court, we are bound to follow. The Missouri court disregards the express provisions of an act of Congress and the Constitution of a sovereign State, both of which laws for twenty-eight years it had not only regarded, but carried into effect. If a State court may do this, on a question involving the liberty of a human being, what protection do the laws afford? So far from this being a Missouri question, it is a question, as it would seem, within the twenty-fifth section of the judiciary act, where a right to freedom being set up under the act of Congress, and the decision being against such right, it may be brought for revision before this court, from the Supreme Court of Missouri. I think the judgment of the court below should be reversed. * * * * * Mr. Justice CURTIS dissenting. I dissent from the opinion pronounced by the Chief Justice, and from the judgment which the majority of the court think it proper to render in this case. The plaintiff alleged, in his declaration, that he was a citizen of the State of Missouri, and that the defendant was a citizen of the State of New York. It is not doubted that it was necessary to make each of these allegations, to sustain the jurisdiction of the Circuit Court. The defendant denied, by a plea to the jurisdiction, either sufficient or insufficient, that the plaintiff was a citizen of the State of Missouri. The plaintiff demurred to that plea. The Circuit Court adjudged the plea insufficient, and the first question for our consideration is, whether the sufficiency of that plea is before this court for judgment, upon this writ of error. The part of the judicial power of the United States, conferred by Congress on the Circuit Courts, being limited to certain described cases and controversies, the question whether a particular case is within the cognizance of a Circuit Court, may be raised by a plea to the jurisdiction of such court. When that question has been raised, the Circuit Court must, in the first instance, pass upon and determine it. Whether its determination be final, or subject to review by this appellate court, must depend upon the will of Congress; upon which body the Constitution has conferred the power, with certain restrictions, to establish inferior courts, to determine their jurisdiction, and to regulate the appellate power of this court. The twenty-second section of the judiciary act of 1789, which allows a writ of error from final judgments of Circuit Courts, provides that there shall be no reversal in this court, on such writ of error, for error in ruling any plea in abatement, _other than a plea to the jurisdiction of the court_. Accordingly it has been held, from the origin of the court to the present day, that Circuit Courts have not been made by Congress the final judges of their own jurisdiction in civil cases. And that when a record comes here upon a writ of error or appeal, and, on its inspection, it appears to this court that the Circuit Court had not jurisdiction, its judgment must be reversed, and the cause remanded, to be dismissed for want of jurisdiction. It is alleged by the defendant in error, in this case, that the plea to the jurisdiction was a sufficient plea; that it shows, on inspection of its allegations, confessed by the demurrer, that the plaintiff was not a citizen of the State of Missouri; that upon this record, it must appear to this court that the case was not within the judicial power of the United States, as defined and granted by the Constitution, because it was not a suit by a citizen of one State against a citizen of another State. To this it is answered, first, that the defendant, by pleading over, after the plea to the jurisdiction was adjudged insufficient, finally waived all benefit of that plea. When that plea was adjudged insufficient, the defendant was obliged to answer over. He held no alternative. He could not stop the further progress of the case in the Circuit Court by a writ of error, on which the sufficiency of his plea to the jurisdiction could be tried in this court, because the judgment on that plea was not final, and no writ of error would lie. He was forced to plead to the merits. It cannot be true, then, that he waived the benefit of his plea to the jurisdiction by answering over. Waiver includes consent. Here, there was no consent. And if the benefit of the plea was finally lost, it must be, not by any waiver, but because the laws of the United States have not provided any mode of reviewing the decision of the Circuit Court on such a plea, when that decision is against the defendant. This is not the law. Whether the decision of the Circuit Court on a plea to the jurisdiction be against the plaintiff, or against the defendant, the losing party may have any alleged error in law, in ruling such a plea, examined in this court on a writ of error, when the matter in controversy exceeds the sum or value of two thousand dollars. If the decision be against the plaintiff, and his suit dismissed for want of jurisdiction, the judgment is technically final, and he may at once sue out his writ of error. (Mollan _v._ Torrance, 9 Wheat., 537.) If the decision be against the defendant, though he must answer over, and wait for a final judgment in the cause, he may then have his writ of error, and upon it obtain the judgment of this court on any question of law apparent on the record, touching the jurisdiction. The fact that he pleaded over to the merits, under compulsion, can have no effect on his right to object to the jurisdiction. If this were not so, the condition of the two parties would be grossly unequal. For if a plea to the jurisdiction were ruled against the plaintiff, he could at once take his writ of error, and have the ruling reviewed here; while, if the same plea were ruled against the defendant, he must not only wait for a final judgment, but could in no event have the ruling of the Circuit Court upon the plea reviewed by this court. I know of no ground for saying that the laws of the United States have thus discriminated between the parties to a suit in its courts. It is further objected, that as the judgment of the Circuit Court was in favor of the defendant, and the writ of error in this cause was sued out by the plaintiff, the defendant is not in a condition to assign any error in the record, and therefore this court is precluded from considering the question whether the Circuit Court had jurisdiction. The practice of this court does not require a technical assignment of errors. (See the rule.) Upon a writ of error, the whole record is open for inspection; and if any error be found in it, the judgment is reversed. (Bank of U.S. _v._ Smith, 11 Wheat., 171.) It is true, as a general rule, that the court will not allow a party to rely on anything as cause for reversing a judgment, which was for his advantage. In this, we follow an ancient rule of the common law. But so careful was that law of the preservation of the course of its courts, that it made an exception out of that general rule, and allowed a party to assign for error that which was for his advantage, if it were a departure by the court itself from its settled course of procedure. The cases on this subject are collected in Bac. Ab., Error H. 4. And this court followed this practice in Capron _v._ Van Noorden, (2 Cranch, 126,) where the plaintiff below procured the reversal of a judgment for the defendant, on the ground that the plaintiff's allegations of citizenship had not shown jurisdiction. But it is not necessary to determine whether the defendant can be allowed to assign want of jurisdiction as an error in a judgment in his own favor. The true question is, not what either of the parties may be allowed to do, but whether this court will affirm or reverse a judgment of the Circuit Court on the merits, when it appears on the record, by a plea to the jurisdiction, that it is a case to which the judicial power of the United States does not extend. The course of the court is, where no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even where it does not appear, affirmatively, that it does exist. (Pequignot _v._ The Pennsylvania R.R. Co., 16 How., 104.) It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted. (Cutler _v._ Rae, 7 How., 729.) I consider, therefore, that when there was a plea to the jurisdiction of the Circuit Court in a case brought here by a writ of error, the first duty of this court is, _sua sponte_, if not moved to it by either party, to examine the sufficiency of that plea; and thus to take care that neither the Circuit Court nor this court shall use the judicial power of the United States in a case to which the Constitution and laws of the United States have not extended that power. I proceed, therefore, to examine the plea to the jurisdiction. I do not perceive any sound reason why it is not to be judged by the rules of the common law applicable to such pleas. It is true, where the jurisdiction of the Circuit Court depends on the citizenship of the parties, it is incumbent on the plaintiff to allege on the record the necessary citizenship; but when he has done so, the defendant must interpose a plea in abatement, the allegations whereof show that the court has not jurisdiction; and it is incumbent on him to prove the truth of his plea. In Sheppard _v._ Graves, (14 How., 27,) the rules on this subject are thus stated in the opinion of the court: "That although, in the courts of the United States, it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in conformity with the laws creating those courts, it must be taken, _prima facie_, as existing; and it is incumbent on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes; that the necessity for the allegation, and the burden of sustaining it by proof, both rest upon the party taking the exception." These positions are sustained by the authorities there cited, as well as by Wickliffe _v._ Owings, (17 How., 47.) When, therefore, as in this case, the necessary averments as to citizenship are made on the record, and jurisdiction is assumed to exist, and the defendant comes by a plea to the jurisdiction to displace that presumption, he occupies, in my judgment, precisely the position described in Bacon Ab., Abatement: "Abatement, in the general acceptation of the word, signifies a plea, put in by the defendant, in which he shows cause to the court why he should not be impleaded; or, if at all, not in the manner and form he now is." This being, then, a plea in abatement, to the jurisdiction of the court, I must judge of its sufficiency by those rules of the common law applicable to such pleas. The plea was as follows: "And the said John F.A. Sandford, in his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause of action, and each and every of them, (if any such have accrued to the said Dred Scott,) accrued to the said Dred Scott out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri; for that, to wit, the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify. Wherefore, he prays judgment whether this court can or will take further cognizance of the action aforesaid." The plaintiff demurred, and the judgment of the Circuit Court was, that the plea was insufficient. I cannot treat this plea as a general traverse of the citizenship alleged by the plaintiff. Indeed, if it were so treated, the plea was clearly bad, for it concludes with a verification, and not to the country, as a general traverse should. And though this defect in a plea in bar must be pointed out by a special demurrer, it is never necessary to demur specially to a plea in abatement; all matters, though of form only, may be taken advantage of upon a general demurrer to such a plea. (Chitty on Pl., 465.) The truth is, that though not drawn with the utmost technical accuracy, it is a special traverse of the plaintiff's allegation of citizenship, and was a suitable and proper mode of traverse under the circumstances. By reference to Mr. Stephen's description of the uses of such a traverse, contained in his excellent analysis of pleadings, (Steph. on Pl., 176,) it will be seen how precisely this plea meets one of his descriptions. No doubt the defendant might have traversed, by a common or general traverse, the plaintiff's allegation that he was a citizen of the State of Missouri, concluding to the country. The issue thus presented being joined, would have involved matter of law, on which the jury must have passed, under the direction of the court. But by traversing the plaintiff's citizenship specially--that is, averring those facts on which the defendant relied to show that in point of law the plaintiff was not a citizen, and basing the traverse on those facts as a deduction therefrom--opportunity was given to do, what was done; that is, to present directly to the court, by a demurrer, the sufficiency of those facts to negative, in point of law, the plaintiff's allegation of citizenship. This, then, being a special, and not a general or common traverse, the rule is settled, that the facts thus set out in the plea, as the reason or ground of the traverse must of themselves constitute, in point of law, a negative of the allegation thus traversed. (Stephen on Pl., 183; Ch. on Pl., 620.) And upon a demurrer to this plea, the question which arises is, whether the facts, that the plaintiff is a negro, of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves, _may all be true, and yet_ the plaintiff be a citizen of the State of Missouri, within the meaning of the Constitution and laws of the United States, which confer on citizens of one State the right to sue citizens of another State in the Circuit Courts. Undoubtedly, if these facts, taken together, amount to an allegation that, at the time of action brought, the plaintiff was himself a slave, the plea is sufficient. It has been suggested that the plea, in legal effect, does so aver, because, if his ancestors were sold as slaves, the presumption is they continued slaves; and if so, the presumption is, the plaintiff was born a slave; and if so, the presumption is, he continued to be a slave to the time of action brought. I cannot think such presumptions can be resorted to, to help out defective averments in pleading; especially, in pleading in abatement, where the utmost certainty and precision are required. (Chitty on Pl., 457.) That the plaintiff himself was a slave at the time of action brought, is a substantive fact, having no necessary connection with the fact that his parents were sold as slaves. For they might have been sold after he was born; or the plaintiff himself, if once a slave, might have became a freeman before action brought. To aver that his ancestors were sold as slaves, is not equivalent, in point of law, to an averment that he was a slave. If it were, he could not even confess and avoid the averment of the slavery of his ancestors, which would be monstrous; and if it be not equivalent in point of law, it cannot be treated as amounting thereto when demurred to; for a demurrer confesses only those substantive facts which are well pleaded, and not other distinct substantive facts which might be inferred therefrom by a jury. To treat an averment that the plaintiff's ancestors were Africans, brought to this country and sold as slaves, as amounting to an averment on the record that he was a slave, because it may lay some foundation for presuming so, is to hold that the facts actually alleged may be treated as intended as evidence of another distinct fact not alleged. But it is a cardinal rule of pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in even earlier authorities therein referred to, "that evidence shall never be pleaded, for it only tends to prove matter of fact; and therefore the matter of fact shall be pleaded." Or, as the rule is sometimes stated, pleadings must not be argumentative. (Stephen on Pleading, 384, and authorities cited by him.) In Com. Dig., Pleader E. 3, and Bac. Abridgement, Pleas I, 5, and Stephen on Pl., many decisions under this rule are collected. In trover, for an indenture whereby A granted a manor, it is no plea that A did not grant the manor, for it does not answer the declaration except by argument. (Yelv., 223.) So in trespass for taking and carrying away the plaintiff's goods, the defendant pleaded that the plaintiff never had any goods. The court said, "this is an infallible argument that the defendant is not guilty, but it is no plea." (Dyer, a 43.) In ejectment, the defendant pleaded a surrender of a copyhold by the hand of Fosset, the steward. The plaintiff replied, that Fosset was not steward. The court held this no issue, for it traversed the surrender only argumentatively. (Cro. Elis., 260.) In these cases, and many others reported in the books, the inferences from the facts stated were irresistible. But the court held they did not, when demurred to, amount to such inferable facts. In the case at bar, the inference that the defendant was a slave at the time of action brought, even if it can be made at all, from the fact that his parents were slaves, is certainly not a necessary inference. This case, therefore, is like that of Digby _v._ Alexander, (8 Bing., 116.) In that case, the defendant pleaded many facts strongly tending to show that he was once Earl of Stirling; but as there was no positive allegation that he was so at the time of action brought, and as every fact averred might be true, and yet the defendant not have been Earl of Stirling at the time of action brought, the plea was held to be insufficient. A lawful seizin of land is presumed to continue. But if, in an action of trespass _quare clausum_, the defendant were to plead that he was lawfully seized of the _locus in quo_, one month before the time of the alleged trespass, I should have no doubt it would be a bad plea. (See Mollan _v._ Torrance, 9 Wheat., 537.) So if a plea to the jurisdiction, instead of alleging that the plaintiff was a citizen of the same State as the defendant, were to allege that the plaintiff's ancestors were citizens of that State, I think the plea could not be supported. My judgment would be, as it is in this case, that if the defendant meant to aver a particular substantive fact, as existing at the time of action brought, he must do it directly and explicitly, and not by way of inference from certain other averments, which are quite consistent with the contrary hypothesis. I cannot, therefore, treat this plea as containing an averment that the plaintiff himself was a slave at the time of action brought; and the inquiry recurs, whether the facts, that he is of African descent, and that his parents were once slaves, are necessarily inconsistent with his own citizenship in the State of Missouri, within the meaning of the Constitution and laws of the United States. In Gassies _v._ Ballon, (6 Pet., 761,) the defendant was described on the record as a naturalized citizen of the United States, residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did then reside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive the plaintiff of his right to sue citizens of States other than Missouri, in the courts of the United States. So that, under the allegations contained in this plea, and admitted by the demurrer, the question is, whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States. If any such person can be a citizen, this plaintiff has the right to the judgment of the court that he is so; for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors. The first section of the second article of the Constitution uses the language, "a citizen of the United States at the time of the adoption of the Constitution." One mode of approaching this question is, to inquire who were citizens of the United States at the time of the adoption of the Constitution. Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation. By the Articles of Confederation, a Government was organized, the style whereof was, "The United States of America." This Government was in existence when the Constitution was framed and proposed for adoption, and was to be superseded by the new Government of the United States of America, organized under the Constitution. When, therefore, the Constitution speaks of citizenship of the United States, existing at the time of the adoption of the Constitution, it must necessarily refer to citizenship under the Government which existed prior to and at the time of such adoption. Without going into any question concerning the powers of the Confederation to govern the territory of the United States out of the limits of the States, and consequently to sustain the relation of Government and citizen in respect to the inhabitants of such territory, it may safely be said that the citizens of the several States were citizens of the United States under the Confederation. That Government was simply a confederacy of the several States, possessing a few defined powers over subjects of general concern, each State retaining every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled. And no power was thus delegated to the Government of the Confederation, to act on any question of citizenship, or to make any rules in respect thereto. The whole matter was left to stand upon the action of the several States, and to the natural consequence of such action, that the citizens of each State should be citizens of that Confederacy into which that State had entered, the style whereof was, "The United States of America." To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution. Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens. The Supreme Court of North Carolina, in the case of the State _v._ Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on this subject, in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina. "According to the laws of this State," says Judge Gaston in delivering the opinion of the court, "all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects--those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects, or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King, to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution." In the State _v._ Newcomb, (5 Iredell's R., 253,) decided in 1844, the same court referred to this case of the State _v._ Manuel, and said: "That case underwent a very laborious investigation, both by the bar and the bench. The case was brought here by appeal, and was felt to be one of great importance in principle. It was considered with an anxiety and care worthy of the principle involved, and which give it a controlling influence and authority on all questions of a similar character." An argument from speculative premises, however well chosen, that the then state of opinion in the Commonwealth of Massachusetts was not consistent with the natural rights of people of color who were born on that soil, and that they were not, by the Constitution of 1780 of that State, admitted to the condition of citizens, would be received with surprise by the people of that State, who know their own political history. It is true, beyond all controversy, that persons of color, descended from African slaves, were by that Constitution made citizens of the State; and such of them as have had the necessary qualifications, have held and exercised the elective franchise, as citizens, from that time to the present. (See Com. _v._ Aves, 18 Pick. R., 210.) The Constitution of New Hampshire conferred the elective franchise upon "every inhabitant of the State having the necessary qualifications," of which color or descent was not one. The Constitution of New York gave the right to vote to "every male inhabitant, who shall have resided," &c.; making no discrimination between free colored persons and others. (See Con. of N.Y., Art. 2, Rev. Stats. of N.Y., vol. 1, p. 126.) That of New Jersey, to "all inhabitants of this colony, of full age, who are worth £50 proclamation money, clear estate." New York, by its Constitution of 1820, required colored persons to have some qualifications as prerequisites for voting, which white persons need not possess. And New Jersey, by its present Constitution, restricts the right to vote to white male citizens. But these changes can have no other effect upon the present inquiry, except to show, that before they were made, no such restrictions existed; and colored in common with white persons, were not only citizens of those States, but entitled to the elective franchise on the same qualifications as white persons, as they now are in New Hampshire and Massachusetts. I shall not enter into an examination of the existing opinions of that period respecting the African race, nor into any discussion concerning the meaning of those who asserted, in the Declaration of Independence, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. My own opinion is, that a calm comparison of these assertions of universal abstract truths, and of their own individual opinions and acts, would not leave these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a necessary regard to circumstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence asserts. But this is not the place to vindicate their memory. As I conceive, we should deal here, not with such disputes, if there can be a dispute concerning this subject, but with those substantial facts evinced by the written Constitutions of States, and by the notorious practice under them. And they show, in a manner which no argument can obscure, that in some of the original thirteen States, free colored persons, before and at the time of the formation of the Constitution, were citizens of those States. The fourth of the fundamental articles of the Confederation was as follows: "The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States." The fact that free persons of color were citizens of some of the several States, and the consequence, that this fourth article of the Confederation would have the effect to confer on such persons the privileges and immunities of general citizenship, were not only known to those who framed and adopted those articles, but the evidence is decisive, that the fourth article was intended to have that effect, and that more restricted language, which would have excluded such persons, was deliberately and purposely rejected. On the 25th of June, 1778, the Articles of Confederation being under consideration by the Congress, the delegates from South Carolina moved to amend this fourth article, by inserting after the word "free," and before the word "inhabitants," the word "white," so that the privileges and immunities of general citizenship would be secured only to white persons. Two States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by its terms of inclusion, "free inhabitants," and the strong implication from its terms of exclusion, "paupers, vagabonds, and fugitives from justice," who alone were excepted, it is clear, that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and, by reason of their citizenship in certain States, were entitled to the privileges and immunities of general citizenship of the United States. Did the Constitution of the United States deprive them or their descendants of citizenship? That Constitution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon, in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of "the people of the United States," by whom the Constitution was ordained and established, but in at least five of the States they had the power to act, and doubtless did act, by their suffrages, upon the question of its adoption. It would be strange, if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who were among those by whom it was established. I can find nothing in the Constitution which, _proprio vigore_, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States. I will proceed to state the grounds of that opinion. The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the King; that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects (McIlvain _v._ Coxe's Lessee, 4 Cranch, 209; Inglis _v._ Sailors' Snug Harbor, 3 Peters, p. 99; Shanks _v._ Dupont, Ibid, p. 242.) The Constitution having recognised the rule that persons born within the several States are citizens of the United States, one of four things must be true: _First._ That the Constitution itself has described what native-born persons shall or shall not be citizens of the United States; or, _Second._ That it has empowered Congress to do so; or, _Third._ That all free persons, born within the several States, are citizens of the United States; or, _Fourth._ That it is left to each State to determine what free persons, born within its limits, shall be citizens of such State, and _thereby_ be citizens of the United States. If there be such a thing as citizenship of the United States acquired by birth within the States, which the Constitution expressly recognises, and no one denies, then these four alternatives embrace the entire subject, and it only remains to select that one which is true. That the Constitution itself has defined citizenship of the United States by declaring what persons, born within the several States, shall or shall not be citizens of the United States, will not be pretended. It contains no such declaration. We may dismiss the first alternative, as without doubt unfounded. Has it empowered Congress to enact what free persons, born within the several States, shall or shall not be citizens of the United States? Before examining the various provisions of the Constitution which may relate to this question, it is important to consider for a moment the substantial nature of this inquiry. It is, in effect, whether the Constitution has empowered Congress to create privileged classes within the States, who alone can be entitled to the franchises and powers of citizenship of the United States. If it be admitted that the Constitution has enabled Congress to declare what free persons, born within the several States, shall be citizens of the United States, it must at the same time be admitted that it is an unlimited power. If this subject is within the control of Congress, it must depend wholly on its discretion. For, certainly, no limits of that discretion can be found in the Constitution, which is wholly silent concerning it; and the necessary consequence is, that the Federal Government may select classes of persons within the several States who alone can be entitled to the political privileges of citizenship of the United States. If this power exists, what persons born within the States may be President or Vice President of the United States, or members of either House of Congress, or hold any office or enjoy any privilege whereof citizenship of the United States is a necessary qualification, must depend solely on the will of Congress. By virtue of it, though Congress can grant no title of nobility, they may create an oligarchy, in whose hands would be concentrated the entire power of the Federal Government. It is a substantive power, distinct in its nature from all others; capable of affecting not only the relations of the States to the General Government, but of controlling the political condition of the people of the United States. Certainly we ought to find this power granted by the Constitution, at least by some necessary inference, before we can say it does not remain to the States or the people. I proceed therefore to examine all the provisions of the Constitution which may have some bearing on this subject. Among the powers expressly granted to Congress is "the power to establish a uniform rule of naturalization." It is not doubted that this is a power to prescribe a rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this, would do violence to the meaning of the term naturalization, fixed in the common law, (Co. Lit., 8 a, 129 a; 2 Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who concurred in framing and adopting the Constitution. It was in this sense of conferring on an alien and his issue the rights and powers of a native-born citizen, that it was employed in the Declaration of Independence. It was in this sense it was expounded in the Federalist, (No. 42,) has been understood by Congress, by the Judiciary, (2 Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by commentators on the Constitution. (3 Story's Com. on Con., 1-3; 1 Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., 255-259.) It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth. Whether there be anything in the Constitution from which a broader power may be implied, will best be seen when we come to examine the two other alternatives, which are, whether all free persons, born on the soil of the several States, or only such of them as may be citizens of each State, respectively, are thereby citizens of the United States. The last of these alternatives, in my judgment, contains the truth. Undoubtedly, as has already been said, it is a principle of public law, recognised by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights of citizenship. But it must be remembered, that though the Constitution was to form a Government, and under it the United States of America were to be one united sovereign nation, to which loyalty and obedience on the one side, and from which protection and privileges on the other, would be due, yet the several sovereign States, whose people were then citizens, were not only to continue in existence, but with powers unimpaired, except so far as they were granted by the people to the National Government. Among the powers unquestionably possessed by the several States, was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may, well enough for the purpose now in view, be divided into three parts. _First_: The power to remove the disabilities of alienage, either by special acts in reference to each individual case, or by establishing a rule of naturalization to be administered and applied by the courts. _Second_: Determining what persons should enjoy the privileges of citizenship, in respect to the internal affairs of the several States. _Third_: What native-born persons should be citizens of the United States. The first-named power, that of establishing a uniform rule of naturalization, was granted; and here the grant, according to its terms, stopped. Construing a Constitution containing only limited and defined powers of government, the argument derived from this definite and restricted power to establish a rule of naturalization, must be admitted to be exceedingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Constitution. But when this particular subject of citizenship was under consideration, and, in the clause specially intended to define the extent of power concerning it, we find a particular part of this entire power separated from the residue, and conferred on the General Government, there arises a strong presumption that this is all which is granted, and that the residue is left to the States and to the people. And this presumption is, in my opinion, converted into a certainty, by an examination of all such other clauses of the Constitution as touch this subject. I will examine each which can have any possible bearing on this question. The first clause of the second section of the third article of the Constitution is, "The judicial power shall extend to controversies between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between States, or the citizens thereof, and foreign States, citizens, or subjects." I do not think this clause has any considerable bearing upon the particular inquiry now under consideration. Its purpose was, to extend the judicial power to those controversies into which local feelings or interests might so enter as to disturb the course of justice, or give rise to suspicions that they had done so, and thus possibly give occasion to jealousy or ill will between different States, or a particular State and a foreign nation. At the same time, I would remark, in passing, that it has never been held, I do not know that it has ever been supposed, that any citizen of a State could bring himself under this clause and the eleventh and twelfth sections of the judiciary act of 1789, passed in pursuance of it, who was not a citizen of the United States. But I have referred to the clause, only because it is one of the places where citizenship is mentioned by the Constitution. Whether it is entitled to any weight in this inquiry or not, it refers only to citizenship of the several States; it recognises that; but it does not recognise citizenship of the United States as something distinct therefrom. As has been said, the purpose of this clause did not necessarily connect it with citizenship of the United States, even if that were something distinct from citizenship of the several States, in the contemplation of the Constitution. This cannot be said of other clauses of the Constitution, which I now proceed to refer to. "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." Nowhere else in the Constitution is there anything concerning a general citizenship; but here, privileges and immunities to be enjoyed throughout the United States, under and by force of the national compact, are granted and secured. In selecting those who are to enjoy these national rights of citizenship, how are they described? As citizens of each State. It is to them these national rights are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws of the United States. They are to be citizens of the several States, and, as such, the privileges and immunities of general citizenship, derived from and guarantied by the Constitution, are to be enjoyed by them. It would seem that if it had been intended to constitute a class of native-born persons within the States, who should derive their citizenship of the United States from the action of the Federal Government, this was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States. And if it was intended to secure these rights only to citizens of the United States, how has the Constitution here described such persons? Simply as citizens of each State. But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American Constitutions; and the just and constitutional possession of this right is decisive evidence of citizenship. The provisions made by a Constitution on this subject must therefore be looked to as bearing directly on the question what persons are citizens under that Constitution; and as being decisive, to this extent, that all such persons as are allowed by the Constitution to exercise the elective franchise, and thus to participate in the Government of the United States, must be deemed citizens of the United States. Here, again, the consideration presses itself upon us, that if there was designed to be a particular class of native-born persons within the States, deriving their citizenship from the Constitution and laws of the United States, they should at least have been referred to as those by whom the President and House of Representatives were to be elected, and to whom they should be responsible. Instead of that, we again find this subject referred to the laws of the several States. The electors of President are to be appointed in such manner as the Legislature of each State may direct, and the qualifications of electors of members of the House of Representatives shall be the same as for electors of the most numerous branch of the State Legislature. Laying aside, then, the case of aliens, concerning which the Constitution of the United States has provided, and confining our view to free persons born within the several States, we find that the Constitution has recognised the general principle of public law, that allegiance and citizenship depend on the place of birth; that it has not attempted practically to apply this principle by designating the particular classes of persons who should or should not come under it; that when we turn to the Constitution for an answer to the question, what free persons, born within the several States, are citizens of the United States, the only answer we can receive from any of its express provisions is, the citizens of the several States are to enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Constitution depends on their citizenship in the several States. Add to this, that the Constitution was ordained by the citizens of the several States; that they were "the people of the United States," for whom and whose posterity the Government was declared in the preamble of the Constitution to be made; that each of them was "a citizen of the United States at the time of the adoption of the Constitution," within the meaning of those words in that instrument; that by them the Government was to be and was in fact organized; and that no power is conferred on the Government of the Union to discriminate between them, or to disfranchise any of them--the necessary conclusion is, that those persons born within the several States, who, by force of their respective Constitutions and laws, are citizens of the State, are thereby citizens of the United States. It may be proper here to notice some supposed objections to this view of the subject. It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established, by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established. Again, it has been objected, that if the Constitution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the United States, the States may make aliens citizens. The answer is obvious. The Constitution has left to the States the determination what persons, born within their respective limits, shall acquire by birth citizenship of the United States; it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress. It has been further objected, that if free colored persons, born within a particular State, and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States; and if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Constitutions and laws disqualify colored persons from voting or being elected to office. But this position rests upon an assumption which I deem untenable. Its basis is, that no one can be deemed a citizen of the United States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is not true, under the Constitution of the United States, seems to me clear. A naturalized citizen cannot be President of the United States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization. Yet, as soon as naturalized, he is certainly a citizen of the United States. Nor is any inhabitant of the District of Columbia, or of either of the Territories, eligible to the office of Senator or Representative in Congress, though they may be citizens of the United States. So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is, that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights; and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided, is a question to be determined by each State, in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way. One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States. Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications. Privileges and immunities which belong to certain citizens of a State, by reason of the operation of causes other than mere citizenship, are not conferred. Thus, if the laws of a State require, in addition to citizenship of the State, some qualification for office, or the exercise of the elective franchise, citizens of all other States, coming thither to reside, and not possessing those qualifications, cannot enjoy those privileges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges, under its Constitution and laws. It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity, if it confer it on all of them by reason of mere naked citizenship, then it may be claimed by every citizen of each State by force of the Constitution; and it must be borne in mind, that the difficulties which attend the allowance of the claims of colored persons to be citizens of the United States are not avoided by saying that, though each State may make them its citizens, they are not thereby made citizens of the United States, because the privileges of general citizenship are secured to the citizens of each State. The language of the Constitution is, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." If each State may make such persons its citizens, they become, as such, entitled to the benefits of this article, if there be a native-born citizenship of the United States distinct from a native-born citizenship of the several States. There is one view of this article entitled to consideration in this connection. It is manifestly copied from the fourth of the Articles of Confederation, with only slight changes of phraseology, which render its meaning more precise, and dropping the clause which excluded paupers, vagabonds, and fugitives from justice, probably because these cases could be dealt with under the police powers of the States, and a special provision therefor was not necessary. It has been suggested, that in adopting it into the Constitution, the words "free inhabitants" were changed for the word "citizens." An examination of the forms of expression commonly used in the State papers of that day, and an attention to the substance of this article of the Confederation, will show that the words "free inhabitants," as then used, were synonymous with citizens. When the Articles of Confederation were adopted, we were in the midst of the war of the Revolution, and there were very few persons then embraced in the words "free inhabitants," who were not born on our soil. It was not a time when many, save the children of the soil, were willing to embark their fortunes in our cause; and though there might be an inaccuracy in the uses of words to call free inhabitants citizens, it was then a technical rather than a substantial difference. If we look into the Constitutions and State papers of that period, we find the inhabitants or people of these colonies, or the inhabitants of this State, or Commonwealth, employed to designate those whom we should now denominate citizens. The substance and purpose of the article prove it was in this sense it used these words: it secures to the free inhabitants of each State the privileges and immunities of free citizens in every State. It is not conceivable that the States should have agreed to extend the privileges of citizenship to persons not entitled to enjoy the privileges of citizens in the States where they dwelt; that under this article there was a class of persons in some of the States, not citizens, to whom were secured all the privileges and immunities of citizens when they went into other States; and the just conclusion is, that though the Constitution cured an inaccuracy of language, it left the substance of this article in the National Constitution the same as it was in the Articles of Confederation. The history of this fourth article, respecting the attempt to exclude free persons of color from its operation, has been already stated. It is reasonable to conclude that this history was known to those who framed and adopted the Constitution. That under this fourth article of the Confederation, free persons of color might be entitled to the privileges of general citizenship, if otherwise entitled thereto, is clear. When this article was, in substance, placed in and made part of the Constitution of the United States, with no change in its language calculated to exclude free colored persons from the benefit of its provisions, the presumption is, to say the least, strong, that the practical effect which it was designed to have, and did have, under the former Government, it was designed to have, and should have, under the new Government. It may be further objected, that if free colored persons may be citizens of the United States, it depends only on the will of a master whether he will emancipate his slave, and thereby make him a citizen. Not so. The master is subject to the will of the State. Whether he shall be allowed to emancipate his slave at all; if so, on what conditions; and what is to be the political _status_ of the freed man, depend, not on the will of the master, but on the will of the State, upon which the political _status_ of all its native-born inhabitants depends. Under the Constitution of the United States, each State has retained this power of determining the political _status_ of its native-born inhabitants, and no exception thereto can be found in the Constitution. And if a master in a slaveholding State should carry his slave into a free State, and there emancipate him, he would not thereby make him a native-born citizen of that State, and consequently no privileges could be claimed by such emancipated slave as a citizen of the United States. For, whatever powers the States may exercise to confer privileges of citizenship on persons not born on their soil, the Constitution of the United States does not recognise such citizens. As has already been said, it recognises the great principle of public law, that allegiance and citizenship spring from the place of birth. It leaves to the States the application of that principle to individual cases. It secured to the citizens of each State the privileges and immunities of citizens in every other State. But it does not allow to the States the power to make aliens citizens, or permit one State to take persons born on the soil of another State, and, contrary to the laws and policy of the State where they were born, make them its citizens, and so citizens of the United States. No such deviation from the great rule of public law was contemplated by the Constitution; and when any such attempt shall be actually made, it is to be met by applying to it those rules of law and those principles of good faith which will be sufficient to decide it, and not, in my judgment, by denying that all the free native-born inhabitants of a State, who are its citizens under its Constitution and laws, are also citizens of the United States. It has sometimes been urged that colored persons are shown not to be citizens of the United States by the fact that the naturalization laws apply only to white persons. But whether a person born in the United States be or be not a citizen, cannot depend on laws which refer only to aliens, and do not affect the _status_ of persons born in the United States. The utmost effect which can be attributed to them is, to show that Congress has not deemed it expedient generally to apply the rule to colored aliens. That they might do so, if thought fit, is clear. The Constitution has not excluded them. And since that has conferred the power on Congress to naturalize colored aliens, it certainly shows color is not a necessary qualification for citizenship under the Constitution of the United States. It may be added, that the power to make colored persons citizens of the United States, under the Constitution, has been actually exercised in repeated and important instances. (See the Treaties with the Choctaws, of September 27, 1830, art. 14; with the Cherokees, of May 23, 1836, art. 12; Treaty of Guadalupe Hidalgo, February 2, 1848, art. 8.) I do not deem it necessary to review at length the legislation of Congress having more or less bearing on the citizenship of colored persons. It does not seem to me to have any considerable tendency to prove that it has been considered by the legislative department of the Government, that no such persons are citizens of the United States. Undoubtedly they have been debarred from the exercise of particular rights or privileges extended to white persons, but, I believe, always in terms which, by implication, admit they may be citizens. Thus the act of May 17, 1792, for the organization of the militia, directs the enrollment of "every free, able-bodied, white male citizen." An assumption that none but white persons are citizens, would be as inconsistent with the just import of this language, as that all citizens are able-bodied, or males. So the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent the importation of certain persons into States, when by the laws thereof their admission is prohibited, in its first section forbids all masters of vessels to import or bring "any negro, mulatto, or other person of color, not being a native, _a citizen_, or registered seaman of the United States," &c. The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen, certainly imply there may be persons of color, natives of the United States, who are not citizens of the United States. This implication is undoubtedly in accordance with the fact. For not only slaves, but free persons of color, born in some of the States, are not citizens. But there is nothing in these laws inconsistent with the citizenship of persons of color in others of the States, nor with their being citizens of the United States. Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not passed with any direct reference to this subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification of citizenship. It would be strange, if laws were found on our statute book to that effect, when, by solemn treaties, large bodies of Mexican and North American Indians as well as free colored inhabitants of Louisiana have been admitted to citizenship of the United States. In the legislative debates which preceded the admission of the State of Missouri into the Union, this question was agitated. Its result is found in the resolution of Congress, of March 5, 1821, for the admission of that State into the Union. The Constitution of Missouri, under which that State applied for admission into the Union, provided, that it should be the duty of the Legislature "to pass laws to prevent free negroes and mulattoes from coming to and settling in the State, under any pretext whatever." One ground of objection to the admission of the State under this Constitution was, that it would require the Legislature to exclude free persons of color, who would be entitled, under the second section of the fourth article of the Constitution, not only to come within the State, but to enjoy there the privileges and immunities of citizens. The resolution of Congress admitting the State was upon the fundamental condition, "that the Constitution of Missouri shall never be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen of either of the States of this Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United States." It is true, that neither this legislative declaration, nor anything in the Constitution or laws of Missouri, could confer or take away any privilege or immunity granted by the Constitution. But it is also true, that it expresses the then conviction of the legislative power of the United States, that free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States. The conclusions at which I have arrived on this part of the case are: _First._ That the free native-born citizens of each State are citizens of the United States. _Second._ That as free colored persons born within some of the States are citizens of those States, such persons are also citizens of the United States. _Third._ That every such citizen, residing in any State, has the right to sue and is liable to be sued in the Federal courts, as a citizen of that State in which he resides. _Fourth._ That as the plea to the jurisdiction in this case shows no facts, except that the plaintiff was of African descent, and his ancestors were sold as slaves, and as these facts are not inconsistent with his citizenship of the United States, and his residence in the State of Missouri, the plea to the jurisdiction was bad, and the judgment of the Circuit Court overruling it was correct. I dissent, therefore, from that part of the opinion of the majority of the court, in which it is held that a person of African descent cannot be a citizen of the United States; and I regret I must go further, and dissent both from what I deem their assumption of authority to examine the constitutionality of the act of Congress commonly called the Missouri compromise act, and the grounds and conclusions announced in their opinion. Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the Circuit Court had not jurisdiction, and consequently that this is a case to which the judicial power of the United States does not extend, they have gone on to examine the merits of the case as they appeared on the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of the authority of the court, as described by its repeated decisions, and, as I understand, acknowledged in this opinion of the majority of the court. In the course of that opinion, it became necessary to comment on the case of Legrand _v._ Darnall, (reported in 2 Peters's R., 664.) In that case, a bill was filed, by one alleged to be a citizen of Maryland, against one alleged to be a citizen of Pennsylvania. The bill stated that the defendant was the son of a white man by one of his slaves; and that the defendant's father devised to him certain lands, the title to which was put in controversy by the bill. These facts were admitted in the answer, and upon these and other facts the court made its decree, founded on the principle that a devise of land by a master to a slave was by implication also a bequest of his freedom. The facts that the defendant was of African descent, and was born a slave, were not only before the court, but entered into the entire substance of its inquiries. The opinion of the majority of my brethren in this case disposes of the case of Legrand _v._ Darnall, by saying, among other things, that as the fact that the defendant was born a slave only came before this court on the bill and answer, it was then too late to raise the question of the personal disability of the party, and therefore that decision is altogether inapplicable in this case. In this I concur. Since the decision of this court in Livingston _v._ Story, (11 Pet., 351,) the law has been settled, that when the declaration or bill contains the necessary averments of citizenship, this court cannot look at the record, to see whether those averments are true, except so far as they are put in issue by a plea to the jurisdiction. In that case, the defendant denied by his answer that Mr. Livingston was a citizen of New York, as he had alleged in the bill. Both parties went into proofs. The court refused to examine those proofs, with reference to the personal disability of the plaintiff. This is the settled law of the court, affirmed so lately as Shepherd _v._ Graves, (14 How., 27,) and Wickliff _v._ Owings, (17 How., 51.) (See also De Wolf _v._ Rabaud, 1 Pet., 476.) But I do not understand this to be a rule which the court may depart from at its pleasure. If it be a rule, it is as binding on the court as on the suitors. If it removes from the latter the power to take any objection to the personal disability of a party alleged by the record to be competent, which is not shown by a plea to the jurisdiction, it is because the court are forbidden by law to consider and decide on objections so taken. I do not consider it to be within the scope of the judicial power of the majority of the court to pass upon any question respecting the plaintiff's citizenship in Missouri, save that raised by the plea to the jurisdiction; and I do not hold any opinion of this court, or any court, binding, when expressed on a question not legitimately before it. (Carroll _v._ Carroll, 16 How., 275.) The judgment of this court is, that the case is to be dismissed for want of jurisdiction, because the plaintiff was not a citizen of Missouri, as he alleged in his declaration. Into that judgment, according to the settled course of this court, nothing appearing after a plea to the merits can enter. A great question of constitutional law, deeply affecting the peace and welfare of the country, is not, in my opinion, a fit subject to be thus reached. But as, in my opinion, the Circuit Court had jurisdiction, I am obliged to consider the question whether its judgment on the merits of the case should stand or be reversed. The residence of the plaintiff in the State of Illinois, and the residence of himself and his wife in the territory acquired from France lying north of latitude thirty-six degrees thirty minutes, and north of the State of Missouri, are each relied on by the plaintiff in error. As the residence in the territory affects the plaintiff's wife and children as well as himself, I must inquire what was its effect. The general question may be stated to be, whether the plaintiff's _status_, as a slave, was so changed by his residence within that territory, that he was not a slave in the State of Missouri, at the time this action was brought. In such cases, two inquiries arise, which may be confounded, but should be kept distinct. The first is, what was the law of the Territory into which the master and slave went, respecting the relation between them? The second is, whether the State of Missouri recognises and allows the effect of that law of the Territory, on the _status_ of the slave, on his return within its jurisdiction. As to the first of these questions, the will of States and nations, by whose municipal law slavery is not recognised, has been manifested in three different ways. One is, absolutely to dissolve the relation, and terminate the rights of the master existing under the law of the country whence the parties came. This is said by Lord Stowell, in the case of the slave Grace, (2 Hag. Ad. R., 94,) and by the Supreme Court of Louisiana in the case of Maria [Transcriber's Note: Marie] Louise _v._ Marot, (9 Louis. R., 473,) to be the law of France; and it has been the law of several States of this Union, in respect to slaves introduced under certain conditions. (Wilson _v._ Isabel, 5 Call's R., 430; Hunter _v._ Hulcher [Transcriber's Note: Fulcher], 1 Leigh, 172; Stewart _v._ Oaks, 5 Har. and John., 107.) The second is, where the municipal law of a country not recognising slavery, it is the will of the State to refuse the master all aid to exercise any control over his slave; and if he attempt to do so, in a manner justifiable only by that relation, to prevent the exercise of that control. But no law exists, designed to operate directly on the relation of master and slave, and put an end to that relation. This is said by Lord Stowell, in the case above mentioned, to be the law of England, and by Mr. Chief Justice Shaw, in the case of the Commonwealth _v._ Aves, (18 Pick., 193,) to be the law of Massachusetts. The third is, to make a distinction between the case of a master and his slave only temporarily in the country, _animo non manendi_, and those who are there to reside for permanent or indefinite purposes. This is said by Mr. Wheaton to be the law of Prussia, and was formerly the statute law of several States of our Union. It is necessary in this case to keep in view this distinction between those countries whose laws are designed to act directly on the _status_ of a slave, and make him a freeman, and those where his master can obtain no aid from the laws to enforce his rights. It is to the last case only that the authorities, out of Missouri, relied on by defendant, apply, when the residence in the non-slaveholding Territory was permanent. In the Commonwealth _v._ Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: "From the principle above stated, on which a slave brought here becomes free, to wit: that he becomes entitled to the protection of our laws, it would seem to follow, as a necessary conclusion, that if the slave waives the protection of those laws, and returns to the State where he is held as a slave, his condition is not changed." It was upon this ground, as is apparent from his whole reasoning, that Sir William Scott rests his opinion in the case of the slave Grace. To use one of his expressions, the effect of the law of England was to put the liberty of the slave into a parenthesis. If there had been an act of Parliament declaring that a slave coming to England with his master should thereby be deemed no longer to be a slave, it is easy to see that the learned judge could not have arrived at the same conclusion. This distinction is very clearly stated and shown by President Tucker, in his opinion in the case of Betty _v._ Horton, (5 Leigh's Virginia R., 615.) (See also Hunter _v._ Fletcher [Transcriber's Note: Fulcher], 1 Leigh's Va. R., 172; Maria [Transcriber's Note: Marie] Louise _v._ Marot, 9 Louisiana R. [Transcriber's Note: at 473]; Smith _v._ Smith, 13 Ib., 441; Thomas _v._ Genevieve, 16 Ib., 483; Rankin _v._ Lydia, 2 A.K. Marshall, 467; Davies _v._ Tingle, 8 B. Munroe, 539; Griffeth [Transcriber's Note: Griffith] _v._ Fanny, Gilm. Va. R., 143; Lumford _v._ Coquillon, 14 Martin's La. R., 405; Josephine _v._ Poultney, 1 Louis. Ann. R., 329.) But if the acts of Congress on this subject are valid, the law of the Territory of Wisconsin, within whose limits the residence of the plaintiff and his wife, and their marriage and the birth of one or both of their children, took place, falls under the first category, and is a law operating directly on the _status_ of the slave. By the eighth section of the act of March 6, 1820, (3 Stat. at Large, 548,) it was enacted that, within this Territory, "slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: _Provided, always_, that any person escaping into the same, from whom labor or service is lawfully claimed in any State or Territory of the United States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service, as aforesaid." By the act of April 20, 1836, (4 Stat. at Large, 10,) passed in the same month and year of the removal of the plaintiff to Fort Snelling, this part of the territory ceded by France, where Fort Snelling is, together with so much of the territory of the United States east of the Mississippi as now constitutes the State of Wisconsin, was brought under a Territorial Government, under the name of the Territory of Wisconsin. By the eighteenth section of this act, it was enacted, "That the inhabitants of this Territory shall be entitled to and enjoy all and singular the rights, privileges, and advantages, granted and secured to the people of the Territory of the United States northwest of the river Ohio, by the articles of compact contained in the ordinance for the government of said Territory, passed on the 13th day of July, 1787; and shall be subject to all the restrictions and prohibitions in said articles of compact imposed upon the people of the said Territory." The sixth article of that compact is, "there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted. _Provided, always_, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service, as aforesaid." By other provisions of this act establishing the Territory of Wisconsin, the laws of the United States, and the then existing laws of the State of Michigan, are extended over the Territory; the latter being subject to alteration and repeal by the legislative power of the Territory created by the act. Fort Snelling was within the Territory of Wisconsin, and these laws were extended over it. The Indian title to that site for a military post had been acquired from the Sioux nation as early as September 23, 1805, (Am. State Papers, Indian Affairs, vol. 1, p. 744,) and until the erection of the Territorial Government, the persons at that post were governed by the rules and articles of war, and such laws of the United States, including the eighth section of the act of March 6, 1820, prohibiting slavery, as were applicable to their condition; but after the erection of the Territory, and the extension of the laws of the United States and the laws of Michigan over the whole of the Territory, including this military post, the persons residing there were under the dominion of those laws in all particulars to which the rules and articles of war did not apply. It thus appears that, by these acts of Congress, not only was a general system of municipal law borrowed from the State of Michigan, which did not tolerate slavery, but it was positively enacted that slavery and involuntary servitude, with only one exception, specifically described, should not exist there. It is not simply that slavery is not recognised and cannot be aided by the municipal law. It is recognised for the purpose of being absolutely prohibited, and declared incapable of existing within the Territory, save in the instance of a fugitive slave. It would not be easy for the Legislature to employ more explicit language to signify its will that the _status_ of slavery should not exist within the Territory, than the words found in the act of 1820, and in the ordinance of 1787; and if any doubt could exist concerning their application to cases of masters coming into the Territory with their slaves to reside, that doubt must yield to the inference required by the words of exception. That exception is, of cases of fugitive slaves. An exception from a prohibition marks the extent of the prohibition; for it would be absurd, as well as useless, to except from a prohibition a case not contained within it. (9 Wheat., 200.) I must conclude, therefore, that it was the will of Congress that the state of involuntary servitude of a slave, coming into the Territory with his master, should cease to exist. The Supreme Court of Missouri so held in Rachel _v._ Walker, (4 Misso. R., 350,) which was the case of a military officer going into the Territory with two slaves. But it is a distinct question, whether the law of Missouri recognised and allowed effect to the change wrought in the _status_ of the plaintiff, by force of the laws of the Territory of Wisconsin. I say the law of Missouri, because a judicial tribunal, in one State or nation, can recognise personal rights acquired by force of the law of any other State or nation, only so far as it is the law of the former State that those rights should be recognised. But, in the absence of positive law to the contrary, the will of every civilized State must be presumed to be to allow such effect to foreign laws as is in accordance with the settled rules of international law. And legal tribunals are bound to act on this presumption. It may be assumed that the motive of the State in allowing such operation to foreign laws is what has been termed comity. But, as has justly been said, (per Chief Justice Taney, 13 Pet., 589,) it is the comity of the State, not of the court. The judges have nothing to do with the motive of the State. Their duty is simply to ascertain and give effect to its will. And when it is found by them that its will to depart from a rule of international law has not been manifested by the State, they are bound to assume that its will is to give effect to it. Undoubtedly, every sovereign State may refuse to recognise a change, wrought by the law of a foreign State, on the _status_ of a person, while within such foreign State, even in cases where the rules of international law require that recognition. Its will to refuse such recognition may be manifested by what we term statute law, or by the customary law of the State. It is within the province of its judicial tribunals to inquire and adjudge whether it appears, from the statute or customary law of the State, to be the will of the State to refuse to recognise such changes of _status_ by force of foreign law, as the rules of the law of nations require to be recognised. But, in my opinion, it is not within the province of any judicial tribunal to refuse such recognition from any political considerations, or any view it may take of the exterior political relations between the State and one or more foreign States, or any impressions it may have that a change of foreign opinion and action on the subject of slavery may afford a reason why the State should change its own action. To understand and give just effect to such considerations, and to change the action of the State in consequence of them, are functions of diplomatists and legislators, not of judges. The inquiry to be made on this part of the case is, therefore, whether the State of Missouri has, by its statute, or its customary law, manifested its will to displace any rule of international law, applicable to a change of the _status_ of a slave, by foreign law. I have not heard it suggested that there was any statute of the State of Missouri bearing on this question. The customary law of Missouri is the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And the common law, as Blackstone says, (4 Com., 67,) adopts, in its full extent, the law of nations, and holds it to be a part of the law of the land. I know of no sufficient warrant for declaring that any rule of international law, concerning the recognition, in that State, of a change of _status_, wrought by an extra-territorial law, has been displaced or varied by the will of the State of Missouri. I proceed then to inquire what the rules of international law prescribe concerning the change of _status_ of the plaintiff wrought by the law of the Territory of Wisconsin. It is generally agreed by writers upon international law, and the rule has been judicially applied in a great number of cases that wherever any question may arise concerning the _status_ of a person, it must be determined according to that law which has next previously rightfully operated on and fixed that _status_. And, further, that the laws of a country do not rightfully operate upon and fix the _status_ of persons who are within its limits _in itinere_, or who are abiding there for definite temporary purposes, as for health, curiosity, or occasional business; that these laws, known to writers on public and private international law as personal statutes, operate only on the inhabitants of the country. Not that it is or can be denied that each independent nation may, if it thinks fit, apply them to all persons within their limits. But when this is done, not in conformity with the principles of international law, other States are not understood to be willing to recognise or allow effect to such applications of personal statutes. It becomes necessary, therefore, to inquire whether the operation of the laws of the Territory of Wisconsin upon the _status_ of the plaintiff was or was not such an operation as these principles of international law require other States to recognise and allow effect to. And this renders it needful to attend to the particular facts and circumstances of this case. It appears that this case came on for trial before the Circuit Court and a jury, upon an issue, in substance, whether the plaintiff, together with his wife and children, were the slaves of the defendant. The court instructed the jury that, "upon the facts in this case, the law is with the defendant." This withdrew from the jury the consideration and decision of every matter of fact. The evidence in the case consisted of written admissions, signed by the counsel of the parties. If the case had been submitted to the judgment of the court, upon an agreed statement of facts, entered of record, in place of a special verdict, it would have been necessary for the court below, and for this court, to pronounce its judgment solely on those facts, thus agreed, without inferring any other facts therefrom. By the rules of the common law applicable to such a case, and by force of the seventh article of the amendments of the Constitution, this court is precluded from finding any fact not agreed to by the parties on the record. No submission to the court on a statement of facts was made. It was a trial by jury, in which certain admissions, made by the parties, were the evidence. The jury were not only competent, but were bound to draw from that evidence every inference which, in their judgment, exercised according to the rules of law, it would warrant. The Circuit Court took from the jury the power to draw any inferences from the admissions made by the parties, and decided the case for the defendant. This course can be justified here, if at all, only by its appearing that upon the facts agreed, and all such inferences of fact favorable to the plaintiff's case, as the jury might have been warranted in drawing from those admissions, the law was with the defendant. Otherwise, the plaintiff would be deprived of the benefit of his trial by jury, by whom, for aught we can know, those inferences favorable to his case would have been drawn. The material facts agreed, bearing on this part of the case, are, that Dr. Emerson, the plaintiff's master, resided about two years at the military post of Fort Snelling, being a surgeon in the army of the United States, his domicil of origin being unknown; and what, if anything, he had done, to preserve or change his domicil prior to his residence at Rock Island, being also unknown. Now, it is true, that under some circumstances the residence of a military officer at a particular place, in the discharge of his official duties, does not amount to the acquisition of a technical domicil. But it cannot be affirmed, with correctness, that it never does. There being actual residence, and this being presumptive evidence of domicil, all the circumstances of the case must be considered, before a legal conclusion can be reached, that his place of residence is not his domicil. If a military officer stationed at a particular post should entertain an expectation that his residence there would be indefinitely protracted, and in consequence should remove his family to the place where his duties were to be discharged, form a permanent domestic establishment there, exercise there the civil rights and discharge the civil duties of an inhabitant, while he did no act and manifested no intent to have a domicil elsewhere, I think no one would say that the mere fact that he was himself liable to be called away by the orders of the Government would prevent his acquisition of a technical domicil at the place of the residence of himself and his family. In other words, I do not think a military officer incapable of acquiring a domicil. (Bruce _v._ Bruce, 2 Bos. and Pul., 230; Munroe _v._ Douglass, 5 Mad. Ch. R., 232.) This being so, this case stands thus: there was evidence before the jury that Emerson resided about two years at Fort Snelling, in the Territory of Wisconsin. This may or may not have been with such intent as to make it his technical domicil. The presumption is that it was. It is so laid down by this court, in Ennis _v._ Smith, (14 How.,) and the authorities in support of the position are there referred to. His intent was a question of fact for the jury. (Fitchburg _v._ Winchendon, 4 Cush., 190.) The case was taken from the jury. If they had power to find that the presumption of the necessary intent had not been rebutted, we cannot say, on this record, that Emerson had not his technical domicil at Fort Snelling. But, for reasons which I shall now proceed to give, I do not deem it necessary in this case to determine the question of the technical domicil of Dr. Emerson. It must be admitted that the inquiry whether the law of a particular country has rightfully fixed the _status_ of a person, so that in accordance with the principles of international law that _status_ should be recognised in other jurisdictions, ordinarily depends on the question whether the person was domiciled in the country whose laws are asserted to have fixed his _status_. But, in the United States, questions of this kind may arise, where an attempt to decide solely with reference to technical domicil, tested by the rules which are applicable to changes of places of abode from one country to another, would not be consistent with sound principles. And, in my judgment, this is one of those cases. The residence of the plaintiff, who was taken by his master, Dr. Emerson, as a slave, from Missouri to the State of Illinois, and thence to the Territory of Wisconsin, must be deemed to have been for the time being, and until he asserted his own separate intention, the same as the residence of his master; and the inquiry, whether the personal statutes of the Territory were rightfully extended over the plaintiff, and ought, in accordance with the rules of international law, to be allowed to fix his _status_, must depend upon the circumstances under which Dr. Emerson went into that Territory, and remained there; and upon the further question, whether anything was there rightfully done by the plaintiff to cause those personal statutes to operate on him. Dr. Emerson was an officer in the army of the United States. He went into the Territory to discharge his duty to the United States. The place was out of the jurisdiction of any particular State, and within the exclusive jurisdiction of the United States. It does not appear where the domicil of origin of Dr. Emerson was, nor whether or not he had lost it, and gained another domicil, nor of what particular State, if any, he was a citizen. On what ground can it be denied that all valid laws of the United States, constitutionally enacted by Congress for the government of the Territory, rightfully extended over an officer of the United States and his servant who went into the Territory to remain there for an indefinite length of time, to take part in its civil or military affairs? They were not foreigners, coming from abroad. Dr. Emerson was a citizen of the country which had exclusive jurisdiction over the Territory; and not only a citizen, but he went there in a public capacity, in the service of the same sovereignty which made the laws. Whatever those laws might be, whether of the kind denominated personal statutes, or not, so far as they were intended by the legislative will, constitutionally expressed, to operate on him and his servant, and on the relations between them, they had a rightful operation, and no other State or country can refuse to allow that those laws might rightfully operate on the plaintiff and his servant, because such a refusal would be a denial that the United States could, by laws constitutionally enacted, govern their own servants, residing on their own Territory, over which the United States had the exclusive control, and in respect to which they are an independent sovereign power. Whether the laws now in question were constitutionally enacted, I repeat once more, is a separate question. But, assuming that they were, and that they operated directly on the _status_ of the plaintiff, I consider that no other State or country could question the rightful power of the United States so to legislate, or, consistently with the settled rules of international law, could refuse to recognise the effects of such legislation upon the _status_ of their officers and servants, as valid everywhere. This alone would, in my apprehension, be sufficient to decide this question. But there are other facts stated on the record which should not be passed over. It is agreed that, in the year 1836, the plaintiff, while residing in the Territory, was married, with the consent of Dr. Emerson, to Harriet, named in the declaration as his wife, and that Eliza and Lizzie were the children of that marriage, the first named having been born on the Mississippi river, north of the line of Missouri, and the other having been born after their return to Missouri. And the inquiry is, whether, after the marriage of the plaintiff in the Territory, with the consent of Dr. Emerson, any other State or country can, consistently with the settled rules of international law, refuse to recognise and treat him as a free man, when suing for the liberty of himself, his wife, and the children of that marriage. It is in reference to his _status_, as viewed in other States and countries, that the contract of marriage and the birth of children becomes strictly material. At the same time, it is proper to observe that the female to whom he was married having been taken to the same military post of Fort Snelling as a slave, and Dr. Emerson claiming also to be her master at the time of her marriage, her _status_, and that of the children of the marriage, are also affected by the same considerations. If the laws of Congress governing the Territory of Wisconsin were constitutional and valid laws, there can be no doubt these parties were capable of contracting a lawful marriage, attended with all the usual civil rights and obligations of that condition. In that Territory they were absolutely free persons, having full capacity to enter into the civil contract of marriage. It is a principle of international law, settled beyond controversy in England and America, that a marriage, valid by the law of the place where it was contracted, and not in fraud of the law of any other place, is valid everywhere; and that no technical domicil at the place of the contract is necessary to make it so. (See Bishop on Mar. and Div., 125-129, where the cases are collected.) If, in Missouri, the plaintiff were held to be a slave, the validity and operation of his contract of marriage must be denied. He can have no legal rights; of course, not those of a husband and father. And the same is true of his wife and children. The denial of his rights is the denial of theirs. So that, though lawfully married in the Territory, when they came out of it, into the State of Missouri, they were no longer husband and wife; and a child of that lawful marriage, though born under the same dominion where its parents contracted a lawful marriage, is not the fruit of that marriage, nor the child of its father, but subject to the maxim, _partus sequitur ventrem_. It must be borne in mind that in this case there is no ground for the inquiry, whether it be the will of the State of Missouri not to recognise the validity of the marriage of a fugitive slave, who escapes into a State or country where slavery is not allowed, and there contracts a marriage; or the validity of such a marriage, where the master, being a citizen of the State of Missouri, voluntarily goes with his slave, _in itinere_, into a State or country which does not permit slavery to exist, and the slave there contracts marriage without the consent of his master; for in this case, it is agreed, Dr. Emerson did consent; and no further question can arise concerning his rights, so far as their assertion is inconsistent with the validity of the marriage. Nor do I know of any ground for the assertion that this marriage was in fraud of any law of Missouri. It has been held by this court, that a bequest of property by a master to his slave, by necessary implication entitles the slave to his freedom; because, only as a freeman could he take and hold the bequest. (Legrand _v._ Darnall, 2 Pet. R., 664.) It has also been held, that when a master goes with his slave to reside for an indefinite period in a State where slavery is not tolerated, this operates as an act of manumission; because it is sufficiently expressive of the consent of the master that the slave should be free. (2 Marshall's Ken. R., 470; 14 Martin's Louis. R., 401.) What, then, shall we say of the consent of the master, that the slave may contract a lawful marriage, attended with all the civil rights and duties which belong to that relation; that he may enter into a relation which none but a free man can assume--a relation which involves not only the rights and duties of the slave, but those of the other party to the contract, and of their descendants to the remotest generation? In my judgment, there can be no more effectual abandonment of the legal rights of a master over his slave, than by the consent of the master that the slave should enter into a contract of marriage, in a free State, attended by all the civil rights and obligations which belong to that condition. And any claim by Dr. Emerson, or any one claiming under him, the effect of which is to deny the validity of this marriage, and the lawful paternity of the children born from it, wherever asserted, is, in my judgment, a claim inconsistent with good faith and sound reason, as well as with the rules of international law. And I go further: in my opinion, a law of the State of Missouri, which should thus annul a marriage, lawfully contracted by these parties while resident in Wisconsin, not in fraud of any law of Missouri, or of any right of Dr. Emerson, who consented thereto, would be a law impairing the obligation of a contract, and within the prohibition of the Constitution of the United States. (See 4 Wheat., 629, 695, 696.) To avoid misapprehension on this important and difficult subject, I will state, distinctly, the conclusions at which I have arrived. They are: _First._ The rules of international law respecting the emancipation of slaves, by the rightful operation of the laws of another State or country upon the _status_ of the slave, while resident in such foreign State or country, are part of the common law of Missouri, and have not been abrogated by any statute law of that State. _Second._ The laws of the United States, constitutionally enacted, which operated directly on and changed the _status_ of a slave coming into the Territory of Wisconsin with his master, who went thither to reside for an indefinite length of time, in the performance of his duties as an officer of the United States, had a rightful operation on the _status_ of the slave, and it is in conformity with the rules of international law that this change of _status_ should be recognised everywhere. _Third._ The laws of the United States, in operation in the Territory of Wisconsin at the time of the plaintiff's residence there, did act directly on the _status_ of the plaintiff, and change his _status_ to that of a free man. _Fourth._ The plaintiff and his wife were capable of contracting, and, with the consent of Dr. Emerson, did contract a marriage in that Territory, valid under its laws; and the validity of this marriage cannot be questioned in Missouri, save by showing that it was in fraud of the laws of that State, or of some right derived from them; which cannot be shown in this case, because the master consented to it. _Fifth._ That the consent of the master that his slave, residing in a country which does not tolerate slavery, may enter into a lawful contract of marriage, attended with the civil rights and duties which belong to that condition, is an effectual act of emancipation. And the law does not enable Dr. Emerson, or any one claiming under him, to assert a title to the married persons as slaves, and thus destroy the obligation of the contract of marriage, and bastardize their issue, and reduce them to slavery. But it is insisted that the Supreme Court of Missouri has settled this case by its decision in Scott _v._ Emerson, (15 Missouri Reports, 576;) and that this decision is in conformity with the weight of authority elsewhere, and with sound principles. If the Supreme Court of Missouri had placed its decision on the ground that it appeared Dr. Emerson never became domiciled in the Territory and so its laws could not rightfully operate on him and his slave; and the facts that he went there to reside indefinitely, as an officer of the United States, and that the plaintiff was lawfully married there, with Dr. Emerson's consent, were left out of view, the decision would find support in other cases, and I might not be prepared to deny its correctness. But the decision is not rested on this ground. The domicil of Dr. Emerson in that Territory is not questioned in that decision; and it is placed on a broad denial of the operation, in Missouri, of the law of any foreign State or country upon the _status_ of a slave, going with his master from Missouri into such foreign State or country, even though they went thither to become, and actually became, permanent inhabitants of such foreign State or country, the laws whereof acted directly on the _status_ of the slave, and changed his _status_ to that of a freeman. To the correctness of such a decision I cannot assent. In my judgment, the opinion of the majority of the court in that case is in conflict with its previous decisions, with a great weight of judicial authority in other slaveholding States, and with fundamental principles of private international law. Mr. Chief Justice Gamble, in his dissenting opinion in that case, said: "I regard the question as conclusively settled by repeated adjudications of this court; and if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to overturn them, than I would any other series of decisions by which the law upon any other question had been settled. There is with me nothing in the law of slavery which distinguishes it from the law on any other subject, or allows any more accommodation to the temporary excitements which have gathered around it.... But in the midst of all such excitement, it is proper that the judicial mind, calm and self-balanced, should adhere to principles established when there was no feeling to disturb the view of the legal questions upon which the rights of parties depend." "In this State, it has been recognised from the beginning of the Government as a correct position in law, that the master who takes his slave to reside in a State or Territory where slavery is prohibited, thereby emancipates his slave." (Winney _v._ Whitesides, 1 Mo., 473; Le Grange [Transcriber's Note: La Grange] _v._ Chouteau, 2 Mo., 20; Milley _v._ Smith, Ib., 36; Ralph _v._ Duncan, 3 Mo., 194; Julia _v._ McKinney, Ib., 270; Nat _v._ Ruddle, Ib., 400; Rachel _v._ Walker, 4 Mo., 350; Wilson _v._ Melvin, 592.) Chief Justice Gamble has also examined the decisions of the courts of other States in which slavery is established, and finds them in accordance with these preceding decisions of the Supreme Court of Missouri to which he refers. It would be a useless parade of learning for me to go over the ground which he has so fully and ably occupied. But it is further insisted we are bound to follow this decision. I do not think so. In this case, it is to be determined what laws of the United States were in operation in the Territory of Wisconsin, and what was their effect on the _status_ of the plaintiff. Could the plaintiff contract a lawful marriage there? Does any law of the State of Missouri impair the obligation of that contract of marriage, destroy his rights as a husband, bastardize the issue of the marriage, and reduce them to a state of slavery? These questions, which arise exclusively under the Constitution and laws of the United States, this court, under the Constitution and laws of the United States, has the rightful authority finally to decide. And if we look beyond these questions, we come to the consideration whether the rules of international law, which are part of the laws of Missouri until displaced by some statute not alleged to exist, do or do not require the _status_ of the plaintiff, as fixed by the laws of the Territory of Wisconsin, to be recognised in Missouri. Upon such a question, not depending on any statute or local usage, but on principles of universal jurisprudence, this court has repeatedly asserted it could not hold itself bound by the decisions of State courts, however great respect might be felt for their learning, ability, and impartiality. (See Swift _v._ Tyson, 16 Peters's R., 1; Carpenter _v._ The Providence Ins. Co., Ib., 495; Foxcroft _v._ Mallet, 4 How., 353; Rowan _v._ Runnels, 5 How., 134.) Some reliance has been placed on the fact that the decision in the Supreme Court of Missouri was between these parties, and the suit there was abandoned to obtain another trial in the courts of the United States. In Homer _v._ Brown, (16 How., 354,) this court made a decision upon the construction of a devise of lands, in direct opposition to the unanimous opinion of the Supreme Court of Massachusetts, between the same parties, respecting the same subject-matter--the claimant having become nonsuit in the State court, in order to bring his action in the Circuit Court of the United States. I did not sit in that case, having been of counsel for one of the parties while at the bar; but, on examining the report of the argument of the counsel for the plaintiff in error, I find they made the point, that this court ought to give effect to the construction put upon the will by the State court, to the end that rights respecting lands may be governed by one law, and that the law of the place where the lands are situated; that they referred to the State decision of the case, reported in 3 Cushing, 390, and to many decisions of this court. But this court does not seem to have considered the point of sufficient importance to notice it in their opinions. In Millar _v._ Austin, (13 How., 218,) an action was brought by the endorsee of a written promise. The question was, whether it was negotiable under a statute of Ohio. The Supreme Court of that State having decided it was not negotiable, the plaintiff became nonsuit, and brought his action in the Circuit Court of the United States. The decision of the Supreme Court of the State, reported 4 Ves., L.J., 527, was relied on. This court unanimously held the paper to be negotiable. When the decisions of the highest court of a State are directly in conflict with each other, it has been repeatedly held, here, that the last decision is not necessarily to be taken as the rule. (State Bank _v._ Knoop, 16 How., 369; Pease _v._ Peck, 18 How., 599.) To these considerations I desire to add, that it was not made known to the Supreme Court of Missouri, so far as appears, that the plaintiff was married in Wisconsin with the consent of Dr. Emerson, and it is not made known to us that Dr. Emerson was a citizen of Missouri, a fact to which that court seem to have attached much importance. Sitting here to administer the law between these parties, I do not feel at liberty to surrender my own convictions of what the law requires, to the authority of the decision in 15 Missouri Reports. I have thus far assumed, merely for the purpose of the argument, that the laws of the United States, respecting slavery in this Territory, were constitutionally enacted by Congress. It remains to inquire whether they are constitutional and binding laws. In the argument of this part of the case at bar, it was justly considered by all the counsel to be necessary to ascertain the source of the power of Congress over the territory belonging to the United States. Until this is ascertained, it is not possible to determine the extent of that power. On the one side it was maintained that the Constitution contains no express grant of power to organize and govern what is now known to the laws of the United States as a Territory. That whatever power of this kind exists, is derived by implication from the capacity of the United States to hold and acquire territory out of the limits of any State, and the necessity for its having some government. On the other side, it was insisted that the Constitution has not failed to make an express provision for this end, and that it is found in the third section of the fourth article of the Constitution. To determine which of these is the correct view, it is needful to advert to some facts respecting this subject, which existed when the Constitution was framed and adopted. It will be found that these facts not only shed much light on the question, whether the framers of the Constitution omitted to make a provision concerning the power of Congress to organize and govern Territories, but they will also aid in the construction of any provision which may have been made respecting this subject. Under the Confederation, the unsettled territory within the limits of the United States had been a subject of deep interest. Some of the States insisted that these lands were within their chartered boundaries, and that they had succeeded to the title of the Crown to the soil. On the other hand, it was argued that the vacant lands had been acquired by the United States, by the war carried on by them under a common Government and for the common interest. This dispute was further complicated by unsettled questions of boundary among several States. It not only delayed the accession of Maryland to the Confederation, but at one time seriously threatened its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of these circumstances, Congress earnestly recommended to the several States a cession of their claims and rights to the United States. (5 Jour. of Cong., 442.) And before the Constitution was framed, it had been begun. That by New York had been made on the 1st day of March, 1781; that of Virginia on the 1st day of March, 1784; that of Massachusetts on the 19th day of April, 1785; that of Connecticut on the 14th day of September, 1786; that of South Carolina on the 8th day of August, 1787, while the Convention for framing the Constitution was in session. It is very material to observe, in this connection, that each of these acts cedes, in terms, to the United States, as well the jurisdiction as the soil. It is also equally important to note that, when the Constitution was framed and adopted, this plan of vesting in the United States, for the common good, the great tracts of ungranted lands claimed by the several States, in which so deep an interest was felt, was yet incomplete. It remained for North Carolina and Georgia to cede their extensive and valuable claims. These were made, by North Carolina on the 25th day of February, 1790, and by Georgia on the 24th day of April, 1802. The terms of these last-mentioned cessions will hereafter be noticed in another connection; but I observe here that each of them distinctly shows, upon its face, that they were not only in execution of the general plan proposed by the Congress of the Confederation, but of a formed purpose of each of these States, existing when the assent of their respective people was given to the Constitution of the United States. It appears, then, that when the Federal Constitution was framed, and presented to the people of the several States for their consideration, the unsettled territory was viewed as justly applicable to the common benefit, so far as it then had or might attain thereafter a pecuniary value; and so far as it might become the seat of new States, to be admitted into the Union upon an equal footing with the original States. And also that the relations of the United States to that unsettled territory were of different kinds. The titles of the States of New York, Virginia, Massachusetts, Connecticut, and South Carolina, as well of soil as of jurisdiction, had been transferred to the United States. North Carolina and Georgia had not actually made transfers, but a confident expectation, founded on their appreciation of the justice of the general claim, and fully justified by the results, was entertained, that these cessions would be made. The ordinance of 1787 had made provision for the temporary government of so much of the territory actually ceded as lay northwest of the river Ohio. But it must have been apparent, both to the framers of the Constitution and the people of the several States who were to act upon it, that the Government thus provided for could not continue, unless the Constitution should confer on the United States the necessary powers to continue it. That temporary Government, under the ordinance, was to consist of certain officers, to be appointed by and responsible to the Congress of the Confederation; their powers had been conferred and defined by the ordinance. So far as it provided for the temporary government of the Territory, it was an ordinary act of legislation, deriving its force from the legislative power of Congress, and depending for its vitality upon the continuance of that legislative power. But the officers to be appointed for the Northwestern Territory, after the adoption of the Constitution, must necessarily be officers of the United States, and not of the Congress of the Confederation; appointed and commissioned by the President, and exercising powers derived from the United States under the Constitution. Such was the relation between the United States and the Northwestern Territory, which all reflecting men must have foreseen would exist, when the Government created by the Constitution should supersede that of the Confederation. That if the new Government should be without power to govern this Territory, it could not appoint and commission officers, and send them into the Territory, to exercise there legislative, judicial, and executive power; and that this Territory, which was even then foreseen to be so important, both politically and financially, to all the existing States, must be left not only without the control of the General Government, in respect to its future political relations to the rest of the States, but absolutely without any Government, save what its inhabitants, acting in their primary capacity, might from time to time create for themselves. But this Northwestern Territory was not the only territory, the soil and jurisdiction whereof were then understood to have been ceded to the United States. The cession by South Carolina, made in August, 1787, was of "all the territory included within the river Mississippi, and a line beginning at that part of the said river which is intersected by the southern boundary of North Carolina, and continuing along the said boundary line until it intersects the ridge or chain of mountains which divides the Eastern from the Western waters; then to be continued along the top of the said ridge of mountains, until it intersects a line to be drawn due west from the head of the southern branch of the Tugaloo river, to the said mountains; and thence to run a due west course to the river Mississippi." It is true that by subsequent explorations it was ascertained that the source of the Tugaloo river, upon which the title of South Carolina depended, was so far to the northward, that the transfer conveyed only a narrow slip of land, about twelve miles wide, lying on the top of the ridge of mountains, and extending from the northern boundary of Georgia to the southern boundary of North Carolina. But this was a discovery made long after the cession, and there can be no doubt that the State of South Carolina, in making the cession, and the Congress in accepting it, viewed it as a transfer to the United States of the soil and jurisdiction of an extensive and important part of the unsettled territory ceded by the Crown of Great Britain by the treaty of peace, though its quantity or extent then remained to be ascertained.[5] [Footnote 5: _Note by Mr. Justice Curtis._ This statement that _some_ territory did actually pass by this cession, is taken from the opinion of the court, delivered by Mr. Justice Wayne, in the case of Howard _v._ Ingersoll, reported in 13 How., 405. It is an obscure matter, and, on some examination of it, I have been led to doubt whether any territory actually passed by this cession. But as the fact is not important to the argument, I have not thought it necessary further to investigate it.] It must be remembered also, as has been already stated, that not only was there a confident expectation entertained by the other States, that North Carolina and Georgia would complete the plan already so far executed by New York, Virginia, Massachusetts, Connecticut, and South Carolina, but that the opinion was in no small degree prevalent, that the just title to this "back country," as it was termed, had vested in the United States by the treaty of peace, and could not rightfully be claimed by any individual State. There is another consideration applicable to this part of the subject, and entitled, in my judgment, to great weight. The Congress of the Confederation had assumed the power not only to dispose of the lands ceded, but to institute Governments and make laws for their inhabitants. In other words, they had proceeded to act under the cession, which, as we have seen, was as well of the jurisdiction as of the soil. This ordinance was passed on the 13th of July, 1787. The Convention for framing the Constitution was then in session at Philadelphia. The proof is direct and decisive, that it was known to the Convention.[6] It is equally clear that it was admitted and understood not to be within the legitimate powers of the Confederation to pass this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276; Federalist, Nos. 38, 43.) [Footnote 6: It was published in a newspaper at Philadelphia, in May, and a copy of it was sent by R.H. Lee to Gen. Washington, on the 15th of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of Washington, vol. 9, p. 174.)] The importance of conferring on the new Government regular powers commensurate with the objects to be attained, and thus avoiding the alternative of a failure to execute the trust assumed by the acceptance of the cessions made and expected, or its execution by usurpation, could scarcely fail to be perceived. That it was in fact perceived, is clearly shown by the Federalist, (No. 38,) where this very argument is made use of in commendation of the Constitution. Keeping these facts in view, it may confidently be asserted that there is very strong reason to believe, before we examine the Constitution itself, that the necessity for a competent grant of power to hold, dispose of, and govern territory, ceded and expected to be ceded, could not have escaped the attention of those who framed or adopted the Constitution; and that if it did not escape their attention, it could not fail to be adequately provided for. Any other conclusion would involve the assumption that a subject of the gravest national concern, respecting which the small States felt so much jealousy that it had been almost an insurmountable obstacle to the formation of the Confederation, and as to which all the States had deep pecuniary and political interests, and which had been so recently and constantly agitated, was nevertheless overlooked; or that such a subject was not overlooked, but designedly left unprovided for, though it was manifestly a subject of common concern, which belonged to the care of the General Government, and adequate provision for which could not fail to be deemed necessary and proper. The admission of new States, to be framed out of the ceded territory, early attracted the attention of the Convention. Among the resolutions introduced by Mr. Randolph, on the 29th of May, was one on this subject, (Res. No. 10, 5 Elliot, 128,) which, having been affirmed in Committee of the Whole, on the 5th of June, (5 Elliot, 156,) and reported to the Convention on the 13th of June, (5 Elliot, 190,) was referred to the Committee of Detail, to prepare the Constitution, on the 26th of July, (5 Elliot, 376.) This committee reported an article for the admission of new States "lawfully constituted or established." Nothing was said concerning the power of Congress to prepare or form such States. This omission struck Mr. Madison, who, on the 18th of August, (5 Elliot, 439,) moved for the insertion of power to dispose of the unappropriated lands of the United States, and to institute temporary Governments for new States arising therein. On the 29th of August, (5 Elliot, 492,) the report of the committee was taken up, and after debate, which exhibited great diversity of views concerning the proper mode of providing for the subject, arising out of the supposed diversity of interests of the large and small States, and between those which had and those which had not unsettled territory, but no difference of opinion respecting the propriety and necessity of some adequate provision for the subject, Gouverneur Morris moved the clause as it stands in the Constitution. This met with general approbation, and was at once adopted. The whole section is as follows: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of Congress. "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State." That Congress has some power to institute temporary Governments over the territory, I believe all agree; and, if it be admitted that the necessity of some power to govern the territory of the United States could not and did not escape the attention of the Convention and the people, and that the necessity is so great, that, in the absence of any express grant, it is strong enough to raise an implication of the existence of that power, it would seem to follow that it is also strong enough to afford material aid in construing an express grant of power respecting that territory; and that they who maintain the existence of the power, without finding any words at all in which it is conveyed, should be willing to receive a reasonable interpretation of language of the Constitution, manifestly intended to relate to the territory, and to convey to Congress some authority concerning it. It would seem, also, that when we find the subject-matter of the growth and formation and admission of new States, and the disposal of the territory for these ends, were under consideration, and that some provision therefor was expressly made, it is improbable that it would be, in its terms, a grossly inadequate provision; and that an indispensably necessary power to institute temporary Governments, and to legislate for the inhabitants of the territory, was passed silently by, and left to be deduced from the necessity of the case. In the argument at the bar, great attention has been paid to the meaning of the word "territory." Ordinarily, when the territory of a sovereign power is spoken of, it refers to that tract of country which is under the political jurisdiction of that sovereign power. Thus Chief Justice Marshall (in United States _v._ Bevans, 3 Wheat., 386) says: "What, then, is the extent of jurisdiction which a State possesses? We answer, without hesitation, the jurisdiction of a State is coextensive with its territory." Examples might easily be multiplied of this use of the word, but they are unnecessary, because it is familiar. But the word "territory" is not used in this broad and general sense in this clause of the Constitution. At the time of the adoption of the Constitution, the United States held a great tract of country northwest of the Ohio; another tract, then of unknown extent, ceded by South Carolina; and a confident expectation was then entertained, and afterwards realized, that they then were or would become the owners of other great tracts, claimed by North Carolina and Georgia. These ceded tracts lay within the limits of the United States, and out of the limits of any particular State; and the cessions embraced the civil and political jurisdiction, and so much of the soil as had not previously been granted to individuals. These words, "territory belonging to the United States," were not used in the Constitution to describe an abstraction, but to identify and apply to these actual subjects matter then existing and belonging to the United States, and other similar subjects which might afterwards be acquired; and this being so, all the essential qualities and incidents attending such actual subjects are embraced within the words "territory belonging to the United States," as fully as if each of those essential qualities and incidents had been specifically described. I say, the essential qualities and incidents. But in determining what were the essential qualities and incidents of the subject with which they were dealing, we must take into consideration not only all the particular facts which were immediately before them, but the great consideration, ever present to the minds of those who framed and adopted the Constitution, that they were making a frame of government for the people of the United States and their posterity, under which they hoped the United States might be, what they have now become, a great and powerful nation, possessing the power to make war and to conclude treaties, and thus to acquire territory. (See Cerré _v._ Pitot, 6 Cr., 336; Am. Ins. Co. _v._ Canter, 1 Pet., 542.) With these in view, I turn to examine the clause of the article now in question. It is said this provision has no application to any territory save that then belonging to the United States. I have already shown that, when the Constitution was framed, a confident expectation was entertained, which was speedily realized, that North Carolina and Georgia would cede their claims to that great territory which lay west of those States. No doubt has been suggested that the first clause of this same article, which enabled Congress to admit new States, refers to and includes new States to be formed out of this territory, expected to be thereafter ceded by North Carolina and Georgia, as well as new States to be formed out of territory northwest of the Ohio, which then had been ceded by Virginia. It must have been seen, therefore, that the same necessity would exist for an authority to dispose of and make all needful regulations respecting this territory, when ceded, as existed for a like authority respecting territory which had been ceded. No reason has been suggested why any reluctance should have been felt, by the framers of the Constitution, to apply this provision to all the territory which might belong to the United States, or why any distinction should have been made, founded on the accidental circumstance of the dates of the cessions; a circumstance in no way material as respects the necessity for rules and regulations, or the propriety of conferring on the Congress power to make them. And if we look at the course of the debates in the Convention on this article, we shall find that the then unceded lands, so far from having been left out of view in adopting this article, constituted, in the minds of members, a subject of even paramount importance. Again, in what an extraordinary position would the limitation of this clause to territory then belonging to the United States, place the territory which lay within the chartered limits of North Carolina and Georgia. The title to that territory was then claimed by those States, and by the United States; their respective claims are purposely left unsettled by the express words of this clause; and when cessions were made by those States, they were merely of their claims to this territory, the United States neither admitting nor denying the validity of those claims; so that it was impossible then, and has ever since remained impossible, to know whether this territory did or did not then belong to the United States; and, consequently, to know whether it was within or without the authority conferred by this clause, to dispose of and make rules and regulations respecting the territory of the United States. This attributes to the eminent men who acted on this subject a want of ability and forecast, or a want of attention to the known facts upon which they were acting, in which I cannot concur. There is not, in my judgment, anything in the language, the history, or the subject-matter of this article, which restricts its operation to territory owned by the United States when the Constitution was adopted. But it is also insisted that provisions of the Constitution respecting territory belonging to the United States do not apply to territory acquired by treaty from a foreign nation. This objection must rest upon the position that the Constitution did not authorize the Federal Government to acquire foreign territory, and consequently has made no provision for its government when acquired; or, that though the acquisition of foreign territory was contemplated by the Constitution, its provisions concerning the admission of new States, and the making of all needful rules and regulations respecting territory belonging to the United States, were not designed to be applicable to territory acquired from foreign nations. It is undoubtedly true, that at the date of the treaty of 1803, between the United States and France, for the cession of Louisiana, it was made a question, whether the Constitution had conferred on the executive department of the Government of the United States power to acquire foreign territory by a treaty. There is evidence that very grave doubts were then entertained concerning the existence of this power. But that there was then a settled opinion in the executive and legislative branches of the Government, that this power did not exist, cannot be admitted, without at the same time imputing to those who negotiated and ratified the treaty, and passed the laws necessary to carry it into execution, a deliberate and known violation of their oaths to support the Constitution; and whatever doubts may then have existed, the question must now be taken to have been settled. Four distinct acquisitions of foreign territory have been made by as many different treaties, under as many different Administrations. Six States, formed on such territory, are now in the Union. Every branch of this Government, during a period of more than fifty years, has participated in these transactions. To question their validity now, is vain. As was said by Mr. Chief Justice Marshall, in the American Insurance Company _v._ Canter, (1 Peters, 542,) "the Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or treaty." (See Cerré _v._ Pitot, 6 Cr., 336.) And I add, it also possesses the power of governing it, when acquired, not by resorting to supposititious powers, nowhere found described in the Constitution, but expressly granted in the authority to make all needful rules and regulations respecting the territory of the United States. There was to be established by the Constitution a frame of government, under which the people of the United States and their posterity were to continue indefinitely. To take one of its provisions, the language of which is broad enough to extend throughout the existence of the Government, and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all territory of the United States, and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purposes of the instrument, as it is with its language, and I can have no hesitation in rejecting it. I construe this clause, therefore, as if it had read, Congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it. It has been urged that the words "rules and regulations" are not appropriate terms in which to convey authority to make laws for the government of the territory. But it must be remembered that this is a grant of power to the Congress--that it is therefore necessarily a grant of power to legislate--and, certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a Legislature to make all needful rules and regulations respecting the territory, is a power to pass all needful laws respecting it. The word regulate, or regulation, is several times used in the Constitution. It is used in the fourth section of the first article to describe those laws of the States which prescribe the times, places, and manner, of choosing Senators and Representatives; in the second section of the fourth article, to designate the legislative action of a State on the subject of fugitives from service, having a very close relation to the matter of our present inquiry; in the second section of the third article, to empower Congress to fix the extent of the appellate jurisdiction of this court; and, finally, in the eighth section of the first article are the words, "Congress shall have power to regulate commerce." It is unnecessary to describe the body of legislation which has been enacted under this grant of power; its variety and extent are well known. But it may be mentioned, in passing, that under this power to regulate commerce, Congress has enacted a great system of municipal laws, and extended it over the vessels and crews of the United States on the high seas and in foreign ports, and even over citizens of the United States resident in China; and has established judicatures, with power to inflict even capital punishment within that country. If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power? To this I answer, that, in common with all the other legislative powers of Congress, it finds limits in the express prohibitions on Congress not to do certain things; that, in the exercise of the legislative power, Congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution. Besides this, the rules and regulations must be needful. But undoubtedly the question whether a particular rule or regulation be needful, must be finally determined by Congress itself. Whether a law be needful, is a legislative or political, not a judicial, question. Whatever Congress deems needful is so, under the grant of power. Nor am I aware that it has ever been questioned that laws providing for the temporary government of the settlers on the public lands are needful, not only to prepare them for admission to the Union as States, but even to enable the United States to dispose of the lands. Without government and social order, there can be no property; for without law, its ownership, its use, and the power of disposing of it, cease to exist, in the sense in which those words are used and understood in all civilized States. Since, then, this power was manifestly conferred to enable the United States to dispose of its public lands to settlers, and to admit them into the Union as States, when in the judgment of Congress they should be fitted therefor, since these were the needs provided for, since it is confessed that Government is indispensable to provide for those needs, and the power is, to make _all needful_ rules and regulations respecting the territory, I cannot doubt that this is a power to govern the inhabitants of the territory, by such laws as Congress deems needful, until they obtain admission as States. Whether they should be thus governed solely by laws enacted by Congress, or partly by laws enacted by legislative power conferred by Congress, is one of those questions which depend on the judgment of Congress--a question which of these is needful. But it is insisted, that whatever other powers Congress may have respecting the territory of the United States, the subject of negro slavery forms an exception. The Constitution declares that Congress shall have power to make "_all_ needful rules and regulations" respecting the territory belonging to the United States. The assertion is, though the Constitution says all, it does not mean all--though it says all, without qualification, it means all except such as allow or prohibit slavery. It cannot be doubted that it is incumbent on those who would thus introduce an exception not found in the language of the instrument, to exhibit some solid and satisfactory reason, drawn from the subject-matter or the purposes and objects of the clause, the context, or from other provisions of the Constitution, showing that the words employed in this clause are not to be understood according to their clear, plain, and natural signification. The subject-matter is the territory of the United States out of the limits of every State, and consequently under the exclusive power of the people of the United States. Their will respecting it, manifested in the Constitution, can be subject to no restriction. The purposes and objects of the clause were the enactment of laws concerning the disposal of the public lands, and the temporary government of the settlers thereon until new States should be formed. It will not be questioned that, when the Constitution of the United States was framed and adopted, the allowance and the prohibition of negro slavery were recognised subjects of municipal legislation; every State had in some measure acted thereon; and the only legislative act concerning the territory--the ordinance of 1787, which had then so recently been passed--contained a prohibition of slavery. The purpose and object of the clause being to enable Congress to provide a body of municipal law for the government of the settlers, the allowance or the prohibition of slavery comes within the known and recognised scope of that purpose and object. There is nothing in the context which qualifies the grant of power. The regulations must be "respecting the territory." An enactment that slavery may or may not exist there, is a regulation respecting the territory. Regulations must be needful; but it is necessarily left to the legislative discretion to determine whether a law be needful. No other clause of the Constitution has been referred to at the bar, or has been seen by me, which imposes any restriction or makes any exception concerning the power of Congress to allow or prohibit slavery in the territory belonging to the United States. A practical construction, nearly contemporaneous with the adoption of the Constitution, and continued by repeated instances through a long series of years, may always influence, and in doubtful cases should determine, the judicial mind, on a question of the interpretation of the Constitution. (Stuart _v._ Laird, 1 Cranch, 269; Martin _v._ Hunter, 1 Wheat., 304; Cohens _v._ Virginia, 6 Wheat., 264; Prigg _v._ Pennsylvania, 16 Pet., 621; Cooley _v._ Port Wardens, 12 How., 315.) In this view, I proceed briefly to examine the practical construction placed on the clause now in question, so far as it respects the inclusion therein of power to permit or prohibit slavery in the Territories. It has already been stated, that after the Government of the United States was organized under the Constitution, the temporary Government of the Territory northwest of the river Ohio could no longer exist, save under the powers conferred on Congress by the Constitution. Whatever legislative, judicial, or executive authority should be exercised therein could be derived only from the people of the United States under the Constitution. And, accordingly, an act was passed on the 7th day of August, 1789, (1 Stat. at Large, 50,) which recites: "Whereas, in order that the ordinance of the United States in Congress assembled, for the government of the territory northwest of the river Ohio, _may continue to have full effect_, it is required that certain provisions should be made, so as to adapt the same to the present Constitution of the United States." It then provides for the appointment by the President of all officers, who, by force of the ordinance, were to have been appointed by the Congress of the Confederation, and their commission in the manner required by the Constitution; and empowers the Secretary of the Territory to exercise the powers of the Governor in case of the death or necessary absence of the latter. Here is an explicit declaration of the will of the first Congress, of which fourteen members, including Mr. Madison, had been members of the Convention which framed the Constitution, that the ordinance, one article of which prohibited slavery, "should continue to have full effect." Gen. Washington, who signed this bill, as President, was the President of that Convention. It does not appear to me to be important, in this connection, that that clause in the ordinance which prohibited slavery was one of a series of articles of what is therein termed a compact. The Congress of the Confederation had no power to make such a compact, nor to act at all on the subject; and after what had been so recently said by Mr. Madison on this subject, in the thirty-eighth number of the _Federalist_, I cannot suppose that he, or any others who voted for this bill, attributed any intrinsic effect to what was denominated in the ordinance a compact between "the original States and the people and States in the new territory;" there being no new States then in existence in the territory, with whom a compact could be made, and the few scattered inhabitants, unorganized into a political body, not being capable of becoming a party to a treaty, even if the Congress of the Confederation had had power to make one touching the government of that territory. I consider the passage of this law to have been an assertion by the first Congress of the power of the United States to prohibit slavery within this part of the territory of the United States; for it clearly shows that slavery was thereafter to be prohibited there, and it could be prohibited only by an exertion of the power of the United States, under the Constitution; no other power being capable of operating within that territory after the Constitution took effect. On the 2d of April, 1790, (1 Stat. at Large, 106,) the first Congress passed an act accepting a deed of cession by North Carolina of that territory afterwards erected into the State of Tennessee. The fourth express condition contained in this deed of cession, after providing that the inhabitants of the Territory shall be temporarily governed in the same manner as those beyond the Ohio, is followed by these words: "_Provided, always_, that no regulations made or to be made by Congress shall tend to emancipate slaves." This provision shows that it was then understood Congress might make a regulation prohibiting slavery, and that Congress might also allow it to continue to exist in the Territory; and accordingly, when, a few days later, Congress passed the act of May 20th, 1790, (1 Stat. at Large, 123,) for the government of the Territory south of the river Ohio, it provided, "and the Government of the Territory south of the Ohio shall be similar to that now exercised in the Territory northwest of the Ohio, except so far as is otherwise provided in the conditions expressed in an act of Congress of the present session, entitled, 'An act to accept a cession of the claims of the State of North Carolina to a certain district of western territory.'" Under the Government thus established, slavery existed until the Territory became the State of Tennessee. On the 7th of April, 1798, (1 Stat. at Large, 649,) an act was passed to establish a Government in the Mississippi Territory in all respects like that exercised in the Territory northwest of the Ohio, "excepting and excluding the last article of the ordinance made for the government thereof by the late Congress, on the 13th day of July, 1787." When the limits of this Territory had been amicably settled with Georgia, and the latter ceded all its claim thereto, it was one stipulation in the compact of cession, that the ordinance of July 13th, 1787, "shall in all its parts extend to the Territory contained in the present act of cession, that article only excepted which forbids slavery." The Government of this Territory was subsequently established and organized under the act of May 10th, 1800; but so much of the ordinance as prohibited slavery was not put in operation there. Without going minutely into the details of each case, I will now give reference to two classes of acts, in one of which Congress has extended the ordinance of 1787, including the article prohibiting slavery, over different Territories, and thus exerted its power to prohibit it; in the other, Congress has erected Governments over Territories acquired from France and Spain, in which slavery already existed, but refused to apply to them that part of the Government under the ordinance which excluded slavery. Of the first class are the act of May 7th, 1800, (2 Stat. at Large, 58,) for the government of the Indiana Territory; the act of January 11th, 1805, (2 Stat. at Large, 309,) for the government of Michigan Territory; the act of May 3d, 1809, (2 Stat. at Large, 514,) for the government of the Illinois Territory; the act of April 20th, 1836, (5 Stat. at Large, 10,) for the government of the Territory of Wisconsin; the act of June 12th, 1838, for the government of the Territory of Iowa; the act of August 14th, 1848, for the government of the Territory of Oregon. To these instances should be added the act of March 6th, 1820, (3 Stat. at Large, 548,) prohibiting slavery in the territory acquired from France, being northwest of Missouri, and north of thirty-six degrees thirty minutes north latitude. Of the second class, in which Congress refused to interfere with slavery already existing under the municipal law of France or Spain, and established Governments by which slavery was recognised and allowed, are: the act of March 26th, 1804, (2 Stat. at Large, 283,) for the government of Louisiana; the act of March 2d, 1805, (2 Stat. at Large, 322,) for the government of the Territory of Orleans; the act of June 4th, 1812, (2 Stat. at Large, 743,) for the government of the Missouri Territory; the act of March 30th, 1822, (3 Stat. at Large, 654,) for the government of the Territory of Florida. Here are eight distinct instances, beginning with the first Congress, and coming down to the year 1848, in which Congress has excluded slavery from the territory of the United States; and six distinct instances in which Congress organized Governments of Territories by which slavery was recognised and continued, beginning also with the first Congress, and coming down to the year 1822. These acts were severally signed by seven Presidents of the United States, beginning with General Washington, and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Constitution was adopted. If the practical construction of the Constitution contemporaneously with its going into effect, by men intimately acquainted with its history from their personal participation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be entitled to weight in the judicial mind on a question of construction, it would seem to be difficult to resist the force of the acts above adverted to. It appears, however, from what has taken place at the bar, that notwithstanding the language of the Constitution, and the long line of legislative and executive precedents under it, three different and opposite views are taken of the power of Congress respecting slavery in the Territories. One is, that though Congress can make a regulation prohibiting slavery in a Territory, they cannot make a regulation allowing it; another is, that it can neither be established nor prohibited by Congress, but that the people of a Territory, when organized by Congress, can establish or prohibit slavery; while the third is, that the Constitution itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory, and there hold them as property. No particular clause of the Constitution has been referred to at the bar in support of either of these views. The first seems to be rested upon general considerations concerning the social and moral evils of slavery, its relations to republican Governments, its inconsistency with the Declaration of Independence and with natural right. The second is drawn from considerations equally general, concerning the right of self-government, and the nature of the political institutions which have been established by the people of the United States. While the third is said to rest upon the equal right of all citizens to go with their property upon the public domain, and the inequality of a regulation which would admit the property of some and exclude the property of other citizens; and, inasmuch as slaves are chiefly held by citizens of those particular States where slavery is established, it is insisted that a regulation excluding slavery from a Territory operates, practically, to make an unjust discrimination between citizens of different States, in respect to their use and enjoyment of the territory of the United States. With the weight of either of these considerations, when presented to Congress to influence its action, this court has no concern. One or the other may be justly entitled to guide or control the legislative judgment upon what is a needful regulation. The question here is, whether they are sufficient to authorize this court to insert into this clause of the Constitution an exception of the exclusion or allowance of slavery, not found therein, nor in any other part of that instrument. To engraft on any instrument a substantive exception not found in it, must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument, and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible--because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court. If it can be shown, by anything in the Constitution itself, that when it confers on Congress the power to make _all_ needful rules and regulations respecting the territory belonging to the United States, the exclusion or the allowance of slavery was excepted; or if anything in the history of this provision tends to show that such an exception was intended by those who framed and adopted the Constitution to be introduced into it, I hold it to be my duty carefully to consider, and to allow just weight to such considerations in interpreting the positive text of the Constitution. But where the Constitution has said _all_ needful rules and regulations, I must find something more than theoretical reasoning to induce me to say it did not mean all. There have been eminent instances in this court closely analogous to this one, in which such an attempt to introduce an exception, not found in the Constitution itself, has failed of success. By the eighth section of the first article, Congress has the power of exclusive legislation in all cases whatsoever within this District. In the case of Loughborough _v._ Blake, (5 Whea., 324,) the question arose, whether Congress has power to impose direct taxes on persons and property in this District. It was insisted, that though the grant of power was in its terms broad enough to include direct taxation, it must be limited by the principle, that taxation and representation are inseparable. It would not be easy to fix on any political truth, better established or more fully admitted in our country, than that taxation and representation must exist together. We went into the war of the Revolution to assert it, and it is incorporated as fundamental into all American Governments. But however true and important this maxim may be, it is not necessarily of universal application. It was for the people of the United States, who ordained the Constitution, to decide whether it should or should not be permitted to operate within this District. Their decision was embodied in the words of the Constitution; and as that contained no such exception as would permit the maxim to operate in this District, this court, interpreting that language, held that the exception did not exist. Again, the Constitution confers on Congress power to regulate commerce with foreign nations. Under this, Congress passed an act on the 22d of December, 1807, unlimited in duration, laying an embargo on all ships and vessels in the ports or within the limits and jurisdiction of the United States. No law of the United States ever pressed so severely upon particular States. Though the constitutionality of the law was contested with an earnestness and zeal proportioned to the ruinous effects which were felt from it, and though, as Mr. Chief Justice Marshall has said, (9 Wheat., 192,) "a want of acuteness in discovering objections to a measure to which they felt the most deep-rooted hostility will not be imputed to those who were arrayed in opposition to this," I am not aware that the fact that it prohibited the use of a particular species of property, belonging almost exclusively to citizens of a few States, and this indefinitely, was ever supposed to show that it was unconstitutional. Something much more stringent, as a ground of legal judgment, was relied on--that the power to regulate commerce did not include the power to annihilate commerce. But the decision was, that under the power to regulate commerce, the power of Congress over the subject was restricted only by those exceptions and limitations contained in the Constitution; and as neither the clause in question, which was a general grant of power to regulate commerce, nor any other clause of the Constitution, imposed any restrictions as to the duration of an embargo, an unlimited prohibition of the use of the shipping of the country was within the power of Congress. On this subject, Mr. Justice Daniel, speaking for the court in the case of United States _v._ Marigold, (9 How., 560,) says: "Congress are, by the Constitution, vested with the power to regulate commerce with foreign nations; and however, at periods of high excitement, an application of the terms 'to regulate commerce,' such as would embrace absolute prohibition, may have been questioned, yet, since the passage of the embargo and non-intercourse laws, and the repeated judicial sanctions these statutes have received, it can scarcely at this day be open to doubt, that every subject falling legitimately within the sphere of commercial regulation may be partially or wholly excluded, when either measure shall be demanded by the safety or the important interests of the entire nation. The power once conceded, it may operate on any and every subject of commerce to which the legislative discretion may apply it." If power to regulate commerce extends to an indefinite prohibition of the use of all vessels belonging to citizens of the several States, and may operate, without exception, upon every subject of commerce to which the legislative discretion may apply it, upon what grounds can I say that power to make all needful rules and regulations respecting the territory of the United States is subject to an exception of the allowance or prohibition of slavery therein? While the regulation is one "respecting the territory," while it is, in the judgment of Congress, "a needful regulation," and is thus completely within the words of the grant, while no other clause of the Constitution can be shown, which requires the insertion of an exception respecting slavery, and while the practical construction for a period of upwards of fifty years forbids such an exception, it would, in my opinion, violate every sound rule of interpretation to force that exception into the Constitution upon the strength of abstract political reasoning, which we are bound to believe the people of the United States thought insufficient to induce them to limit the power of Congress, because what they have said contains no such limitation. Before I proceed further to notice some other grounds of supposed objection to this power of Congress, I desire to say, that if it were not for my anxiety to insist upon what I deem a correct exposition of the Constitution, if I looked only to the purposes of the argument, the source of the power of Congress asserted in the opinion of the majority of the court would answer those purposes equally well. For they admit that Congress has power to organize and govern the Territories until they arrive at a suitable condition for admission to the Union; they admit, also, that the kind of Government which shall thus exist should be regulated by the condition and wants of each Territory, and that it is necessarily committed to the discretion of Congress to enact such laws for that purpose as that discretion may dictate; and no limit to that discretion has been shown, or even suggested, save those positive prohibitions to legislate, which are found in the Constitution. I confess myself unable to perceive any difference whatever between my own opinion of the general extent of the power of Congress and the opinion of the majority of the court, save that I consider it derivable from the express language of the Constitution, while they hold it to be silently implied from the power to acquire territory. Looking at the power of Congress over the Territories as of the extent just described, what positive prohibition exists in the Constitution, which restrained Congress from enacting a law in 1820 to prohibit slavery north of thirty-six degrees thirty minutes north latitude? The only one suggested is that clause in the fifth article of the amendments of the Constitution which declares that no person shall be deprived of his life, liberty, or property, without due process of law. I will now proceed to examine the question, whether this clause is entitled to the effect thus attributed to it. It is necessary, first, to have a clear view of the nature and incidents of that particular species of property which is now in question. Slavery, being contrary to natural right, is created only by municipal law. This is not only plain in itself, and agreed by all writers on the subject, but is inferable from the Constitution, and has been explicitly declared by this court. The Constitution refers to slaves as "persons held to service in one State, under the laws thereof." Nothing can more clearly describe a _status_ created by municipal law. In Prigg _v._ Pennsylvania, (10 Pet., 611,) this court said: "The state of slavery is deemed to be a mere municipal regulation, founded on and limited to the range of territorial laws." In Rankin _v._ Lydia, (2 Marsh., 12, 470,) the Supreme Court of Appeals of Kentucky said: "Slavery is sanctioned by the laws of this State, and the right to hold them under our municipal regulations is unquestionable. But we view this as a right existing by positive law of a municipal character, without foundation in the law of nature or the unwritten common law." I am not acquainted with any case or writer questioning the correctness of this doctrine. (See also 1 Burge, Col. and For. Laws, 738-741, where the authorities are collected.) The _status_ of slavery is not necessarily always attended with the same powers on the part of the master. The master is subject to the supreme power of the State, whose will controls his action towards his slave, and this control must be defined and regulated by the municipal law. In one State, as at one period of the Roman law, it may put the life of the slave into the hand of the master; others, as those of the United States, which tolerate slavery, may treat the slave as a person, when the master takes his life; while in others, the law may recognise a right of the slave to be protected from cruel treatment. In other words, the _status_ of slavery embraces every condition, from that in which the slave is known to the law simply as a chattel, with no civil rights, to that in which he is recognised as a person for all purposes, save the compulsory power of directing and receiving the fruits of his labor. Which of these conditions shall attend the _status_ of slavery, must depend on the municipal law which creates and upholds it. And not only must the _status_ of slavery be created and measured by municipal law, but the rights, powers, and obligations, which grow out of that _status_, must be defined, protected, and enforced, by such laws. The liability of the master for the torts and crimes of his slave, and of third persons for assaulting or injuring or harboring or kidnapping him, the forms and modes of emancipation and sale, their subjection to the debts of the master, succession by death of the master, suits for freedom, the capacity of the slave to be party to a suit, or to be a witness, with such police regulations as have existed in all civilized States where slavery has been tolerated, are among the subjects upon which municipal legislation becomes necessary when slavery is introduced. Is it conceivable that the Constitution has conferred the right on every citizen to become a resident on the territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any municipal regulations which are essential to the existence of slavery? Is it not more rational to conclude that they who framed and adopted the Constitution were aware that persons held to service under the laws of a State are property only to the extent and under the conditions fixed by those laws; that they must cease to be available as property, when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of slavery exist; and that, being aware of these principles, and having said nothing to interfere with or displace them, or to compel Congress to legislate in any particular manner on the subject, and having empowered Congress to make all needful rules and regulations respecting the territory of the United States, it was their intention to leave to the discretion of Congress what regulations, if any, should be made concerning slavery therein? Moreover, if the right exists, what are its limits, and what are its conditions? If citizens of the United States have the right to take their slaves to a Territory, and hold them there as slaves, without regard to the laws of the Territory, I suppose this right is not to be restricted to the citizens of slaveholding States. A citizen of a State which does not tolerate slavery can hardly be denied the power of doing the same thing. And what law of slavery does either take with him to the Territory? If it be said to be those laws respecting slavery which existed in the particular State from which each slave last came, what an anomaly is this? Where else can we find, under the law of any civilized country, the power to introduce and permanently continue diverse systems of foreign municipal law, for holding persons in slavery? I say, not merely to introduce, but permanently to continue, these anomalies. For the offspring of the female must be governed by the foreign municipal laws to which the mother was subject; and when any slave is sold or passes by succession on the death of the owner, there must pass with him, by a species of subrogation, and as a kind of unknown _jus in re_, the foreign municipal laws which constituted, regulated, and preserved, the _status_ of the slave before his exportation. Whatever theoretical importance may be now supposed to belong to the maintenance of such a right, I feel a perfect conviction that it would, if ever tried, prove to be as impracticable in fact, as it is, in my judgment, monstrous in theory. I consider the assumption which lies at the basis of this theory to be unsound; not in its just sense, and when properly understood, but in the sense which has been attached to it. That assumption is, that the territory ceded by France was acquired for the equal benefit of all the citizens of the United States. I agree to the position. But it was acquired for their benefit in their collective, not their individual, capacities. It was acquired for their benefit, as an organized political society, subsisting as "the people of the United States," under the Constitution of the United States; to be administered justly and impartially, and as nearly as possible for the equal benefit of every individual citizen, according to the best judgment and discretion of the Congress; to whose power, as the Legislature of the nation which acquired it, the people of the United States have committed its administration. Whatever individual claims may be founded on local circumstances, or sectional differences of condition, cannot, in my opinion, be recognised in this court, without arrogating to the judicial branch of the Government powers not committed to it; and which, with all the unaffected respect I feel for it, when acting in its proper sphere, I do not think it fitted to wield. Nor, in my judgment, will the position, that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, bear examination. It must be remembered that this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from _Magna Charta_; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter. It existed in every political community in America in 1787, when the ordinance prohibiting slavery north and west of the Ohio was passed. And if a prohibition of slavery in a Territory in 1820 violated this principle of _Magna Charta_, the ordinance of 1787 also violated it; and what power had, I do not say the Congress of the Confederation alone, but the Legislature of Virginia, or the Legislature of any or all the States of the Confederacy, to consent to such a violation? The people of the States had conferred no such power. I think I may at least say, if the Congress did then violate _Magna Charta_ by the ordinance, no one discovered that violation. Besides, if the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declaration that if brought they shall be free, deprives citizens of their property without due process of law, what shall we say of the legislation of many of the slaveholding States which have enacted the same prohibition? As early as October, 1778, a law was passed in Virginia, that thereafter no slave should be imported into that Commonwealth by sea or by land, and that every slave who should be imported should become free. A citizen of Virginia purchased in Maryland a slave who belonged to another citizen of Virginia, and removed with the slave to Virginia. The slave sued for her freedom, and recovered it; as may be seen in Wilson _v._ Isabel, (5 Call's R., 425.) See also Hunter _v._ Hulsher [Transcriber's Note: Fulcher], (1 Leigh, 172;) and a similar law has been recognised as valid in Maryland, in Stewart _v._ Oaks, (5 Har. and John., 107.) I am not aware that such laws, though they exist in many States, were ever supposed to be in conflict with the principle of _Magna Charta_ incorporated into the State Constitutions. It was certainly understood by the Convention which framed the Constitution, and has been so understood ever since, that, under the power to regulate commerce, Congress could prohibit the importation of slaves; and the exercise of the power was restrained till 1808. A citizen of the United States owns slaves in Cuba, and brings them to the United States, where they are set free by the legislation of Congress. Does this legislation deprive him of his property without due process of law? If so, what becomes of the laws prohibiting the slave trade? If not, how can a similar regulation respecting a Territory violate the fifth amendment of the Constitution? Some reliance was placed by the defendant's counsel upon the fact that the prohibition of slavery in this territory was in the words, "that slavery, &c., shall be and is hereby _forever_ prohibited." But the insertion of the word _forever_ can have no legal effect. Every enactment not expressly limited in its duration continues in force until repealed or abrogated by some competent power, and the use of the word "forever" can give to the law no more durable operation. The argument is, that Congress cannot so legislate as to bind the future States formed out of the territory, and that in this instance it has attempted to do so. Of the political reasons which may have induced the Congress to use these words, and which caused them to expect that subsequent Legislatures would conform their action to the then general opinion of the country that it ought to be permanent, this court can take no cognizance. However fit such considerations are to control the action of Congress, and however reluctant a statesman may be to disturb what has been settled, every law made by Congress may be repealed, and, saving private rights, and public rights gained by States, its repeal is subject to the absolute will of the same power which enacted it. If Congress had enacted that the crime of murder, committed in this Indian Territory, north of thirty-six degrees thirty minutes, by or on any white man, should _forever_ be punishable with death, it would seem to me an insufficient objection to an indictment, found while it was a Territory, that at some future day States might exist there, and so the law was invalid, because, by its terms, it was to continue in force forever. Such an objection rests upon a misapprehension of the province and power of courts respecting the constitutionality of laws enacted by the Legislature. If the Constitution prescribe one rule, and the law another and different rule, it is the duty of courts to declare that the Constitution, and not the law, governs the case before them for judgment. If the law include no case save those for which the Constitution has furnished a different rule, or no case which the Legislature has the power to govern, then the law can have no operation. If it includes cases which the Legislature has power to govern, and concerning which the Constitution does not prescribe a different rule, the law governs those cases, though it may, in its terms, attempt to include others, on which it cannot operate. In other words, this court cannot declare void an act of Congress which constitutionally embraces some cases, though other cases, within its terms, are beyond the control of Congress, or beyond the reach of that particular law. If, therefore, Congress had power to make a law excluding slavery from this territory while under the exclusive power of the United States, the use of the word "forever" does not invalidate the law, so long as Congress has the exclusive legislative power in the territory. But it is further insisted that the treaty of 1803, between the United States and France, by which this territory was acquired, has so restrained the constitutional powers of Congress, that it cannot, by law, prohibit the introduction of slavery into that part of this territory north and west of Missouri, and north of thirty-six degrees thirty minutes north latitude. By a treaty with a foreign nation, the United States may rightfully stipulate that the Congress will or will not exercise its legislative power in some particular manner, on some particular subject. Such promises, when made, should be voluntarily kept, with the most scrupulous good faith. But that a treaty with a foreign nation can deprive the Congress of any part of the legislative power conferred by the people, so that it no longer can legislate as it was empowered by the Constitution to do, I more than doubt. The powers of the Government do and must remain unimpaired. The responsibility of the Government to a foreign nation, for the exercise of those powers, is quite another matter. That responsibility is to be met, and justified to the foreign nation, according to the requirements of the rules of public law; but never upon the assumption that the United States had parted with or restricted any power of acting according to its own free will, governed solely by its own appreciation of its duty. The second section of the fourth article is, "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land." This has made treaties part of our municipal law; but it has not assigned to them any particular degree of authority, nor declared that laws so enacted shall be irrepealable. No supremacy is assigned to treaties over acts of Congress. That they are not perpetual, and must be in some way repealable, all will agree. If the President and the Senate alone possess the power to repeal or modify a law found in a treaty, inasmuch as they can change or abrogate one treaty only by making another inconsistent with the first, the Government of the United States could not act at all, to that effect, without the consent of some foreign Government. I do not consider, I am not aware it has ever been considered, that the Constitution has placed our country in this helpless condition. The action of Congress in repealing the treaties with France by the act of July 7th, 1798, (1 Stat. at Large, 578,) was in conformity with these views. In the case of Taylor et al. _v._ Morton, (2 Curtis's Cir. Ct. R., 454,) I had occasion to consider this subject, and I adhere to the views there expressed. If, therefore, it were admitted that the treaty between the United States and France did contain an express stipulation that the United States would not exclude slavery from so much of the ceded territory as is now in question, this court could not declare that an act of Congress excluding it was void by force of the treaty. Whether or no a case existed sufficient to justify a refusal to execute such a stipulation, would not be a judicial, but a political and legislative question, wholly beyond the authority of this court to try and determine. It would belong to diplomacy and legislation, and not to the administration of existing laws. Such a stipulation in a treaty, to legislate or not to legislate in a particular way, has been repeatedly held in this court to address itself to the political or the legislative power, by whose action thereon this court is bound. (Foster _v._ Nicolson, 2 Peters, 314; Garcia _v._ Lee, 12 Peters, 519.) But, in my judgment, this treaty contains no stipulation in any manner affecting the action of the United States respecting the territory in question. Before examining the language of the treaty, it is material to bear in mind that the part of the ceded territory lying north of thirty-six degrees thirty minutes, and west and north of the present State of Missouri, was then a wilderness, uninhabited save by savages, whose possessory title had not then been extinguished. It is impossible for me to conceive on what ground France could have advanced a claim, or could have desired to advance a claim, to restrain the United States from making any rules and regulations respecting this territory, which the United States might think fit to make; and still less can I conceive of any reason which would have induced the United States to yield to such a claim. It was to be expected that France would desire to make the change of sovereignty and jurisdiction as little burdensome as possible to the then inhabitants of Louisiana, and might well exhibit even an anxious solicitude to protect their property and persons, and secure to them and their posterity their religious and political rights; and the United States, as a just Government, might readily accede to all proper stipulations respecting those who were about to have their allegiance transferred. But what interest France could have in uninhabited territory, which, in the language of the treaty, was to be transferred "forever, and in full sovereignty," to the United States, or how the United States could consent to allow a foreign nation to interfere in its purely internal affairs, in which that foreign nation had no concern whatever, is difficult for me to conjecture. In my judgment, this treaty contains nothing of the kind. The third article is supposed to have a bearing on the question. It is as follows: "The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities, of citizens of the United States; and in the mean time they shall be maintained and protected in the enjoyment of their liberty, property, and the religion they profess." There are two views of this article, each of which, I think, decisively shows that it was not intended to restrain the Congress from excluding slavery from that part of the ceded territory then uninhabited. The first is, that, manifestly, its sole object was to protect individual rights of the then inhabitants of the territory. They are to be "maintained and protected in the free enjoyment of their liberty, property, and the religion they profess." But this article does not secure to them the right to go upon the public domain ceded by the treaty, either with or without their slaves. The right or power of doing this did not exist before or at the time the treaty was made. The French and Spanish Governments while they held the country, as well as the United States when they acquired it, always exercised the undoubted right of excluding inhabitants from the Indian country, and of determining when and on what conditions it should be opened to settlers. And a stipulation, that the then inhabitants of Louisiana should be protected in their property, can have no reference to their use of that property, where they had no right, under the treaty, to go with it, save at the will of the United States. If one who was an inhabitant of Louisiana at the time of the treaty had afterwards taken property then owned by him, consisting of fire-arms, ammunition, and spirits, and had gone into the Indian country north of thirty-six degrees thirty minutes, to sell them to the Indians, all must agree the third article of the treaty would not have protected him from indictment under the act of Congress of March 30, 1802, (2 Stat. at Large, 139,) adopted and extended to this territory by the act of March 26, 1804, (2 Stat. at Large, 283.) Besides, whatever rights were secured were individual rights. If Congress should pass any law which violated such rights of any individual, and those rights were of such a character as not to be within the lawful control of Congress under the Constitution, that individual could complain, and the act of Congress, as to such rights of his, would be inoperative; but it would be valid and operative as to all other persons, whose individual rights did not come under the protection of the treaty. And inasmuch as it does not appear that any inhabitant of Louisiana, whose rights were secured by treaty, had been injured, it would be wholly inadmissible for this court to assume, first, that one or more such cases may have existed; and, second, that if any did exist, the entire law was void--not only as to those cases, if any, in which it could not rightfully operate, but as to all others, wholly unconnected with the treaty, in which such law could rightfully operate. But it is quite unnecessary, in my opinion, to pursue this inquiry further, because it clearly appears from the language of the article, and it has been decided by this court, that the stipulation was temporary, and ceased to have any effect when the then inhabitants of the Territory of Louisiana, in whose behalf the stipulation was made, were incorporated into the Union. In the cases of New Orleans _v._ De Armas et al., (9 Peters, 223,) the question was, whether a title to property, which existed at the date of the treaty, continued to be protected by the treaty after the State of Louisiana was admitted to the Union. The third article of the treaty was relied on. Mr. Chief Justice Marshall said: "This article obviously contemplates two objects. One, that Louisiana shall be admitted into the Union as soon as possible, on an equal footing with the other States; and the other, that, till such admission, the inhabitants of the ceded territory shall be protected in the free enjoyment of their liberty, property, and religion. Had any one of these rights been violated while these stipulations continued in force, the individual supposing himself to be injured might have brought his case into this court, under the twenty-fifth section of the judicial act. But this stipulation ceased to operate when Louisiana became a member of the Union, and its inhabitants were 'admitted to the enjoyment of all the rights, advantages, and immunities, of citizens of the United States.'" The cases of Chouteau _v._ Marguerita, (12 Peters, 507,) and Permoli _v._ New Orleans, (3 How., 589,) are in conformity with this view of the treaty. To convert this temporary stipulation of the treaty, in behalf of French subjects who then inhabited a small portion of Louisiana, into a permanent restriction upon the power of Congress to regulate territory then uninhabited, and to assert that it not only restrains Congress from affecting the rights of property of the then inhabitants, but enabled them and all other citizens of the United States to go into any part of the ceded territory with their slaves, and hold them there, is a construction of this treaty so opposed to its natural meaning, and so far beyond its subject-matter and the evident design of the parties, that I cannot assent to it. In my opinion, this treaty has no bearing on the present question. For these reasons, I am of opinion that so much of the several acts of Congress as prohibited slavery and involuntary servitude within that part of the Territory of Wisconsin lying north of thirty-six degrees thirty minutes north latitude, and west of the river Mississippi, were constitutional and valid laws. I have expressed my opinion, and the reasons therefor, at far greater length than I could have wished, upon the different questions on which I have found it necessary to pass, to arrive at a judgment on the case at bar. These questions are numerous, and the grave importance of some of them required me to exhibit fully the grounds of my opinion. I have touched no question which, in the view I have taken, it was not absolutely necessary for me to pass upon, to ascertain whether the judgment of the Circuit Court should stand or be reversed. I have avoided no question on which the validity of that judgment depends. To have done either more or less, would have been inconsistent with my views of my duty. In my opinion, the judgment of the Circuit Court should be reversed, and the cause remanded for a new trial. 
36591	----	[Illustration: The House from which Mrs. Packard was Kidnapped in Manteno, Kankakee County, Illinois.] MARITAL POWER EXEMPLIFIED IN Mrs. Packard's Trial, AND SELF-DEFENCE FROM THE CHARGE OF INSANITY; OR Three Years' Imprisonment for Religious Belief, BY THE ARBITRARY WILL OF A HUSBAND, WITH AN APPEAL TO THE GOVERNMENT TO SO CHANGE THE LAWS AS TO AFFORD Legal Protection to Married Women. BY MRS. E. P. W. PACKARD. CHICAGO: CLARKE & CO., PUBLISHERS. 1870. TABLE OF CONTENTS. Page Introduction, 3 The Great Trial of Mrs. Elizabeth P. W. Packard, who was confined Three Years in the State Asylum of Illinois, charged by her Husband, Rev. Theophilus Packard, with being Insane. Her discharge from the Asylum, and subsequent Imprisonment at her own House by her Husband. Her release on a Writ of Habeas Corpus, and the question of her Sanity tried by a Jury. Her Sanity fully established, 13 Narrative of events continued, 42 Miscellaneous questions answered, 61 False Reports corrected, 85 Note of thanks to my Patrons and the Press, 107 Testimonials, 117 Conclusion, 126 An Appeal to the Government, 130 Entered, according to Act of Congress, in the year 1866, by MRS. E. P. W. PACKARD, In the Clerk's Office of the District Court of the District of Connecticut. INTRODUCTION. A brief narrative of the events which occasioned the following Trial seems necessary as an Introduction to it, and are here presented for the kind reader's candid consideration. It was in a Bible-class in Manteno, Kankakee County, Illinois, that I defended some religious opinions which conflicted with the Creed of the Presbyterian Church in that place, which brought upon me the charge of insanity. It was at the invitation of Deacon Dole, the teacher of that Bible-class, that I consented to become his pupil, and it was at his special request that I brought forward my views to the consideration of the class. The class numbered six when I entered it, and forty-six when I left it. I was about four months a member of it. I had not the least suspicion of danger or harm arising in any way, either to myself or others, from thus complying with his wishes, and thus uttering some of my honestly cherished opinions. I regarded the principle of religious tolerance as the vital principle on which our government was based, and I in my ignorance supposed this right was protected to all American citizens, even to the wives of clergymen. But, alas! my own sad experience has taught me the danger of believing a lie on so vital a question. The result was, I was legally kidnapped and imprisoned three years simply for uttering these opinions under these circumstances. I was kidnapped in the following manner.--Early on the morning of the 18th of June, 1860, as I arose from my bed, preparing to take my morning bath, I saw my husband approaching my door with our two physicians, both members of his church and of our Bible-class,--and a stranger gentleman, sheriff Burgess. Fearing exposure I hastily locked my door, and proceeded with the greatest dispatch to dress myself. But before I had hardly commenced, my husband forced an entrance into my room through the window with an axe! And I, for shelter and protection against an exposure in a state of almost entire nudity, sprang into bed, just in time to receive my unexpected guests. The trio approached my bed, and each doctor felt my pulse, and without asking a single question both pronounced me insane. So it seems that in the estimation of these two M. D.'s, Dr. Merrick and Newkirk, insanity is indicated by the action of the pulse instead of the mind! Of course, my pulse was bounding at the time from excessive fright; and I ask, what lady of refinement and fine and tender sensibilities would not have a quickened pulse by such an untimely, unexpected, unmanly, and even outrageous entrance into her private sleeping room? I say it would be impossible for any woman, unless she was either insane or insensible to her surroundings, not to be agitated under such circumstances. This was the only medical examination I had. This was the only trial of _any kind_ that I was allowed to have, to prove the charge of insanity brought against me by my husband. I had no chance of _self defence_ whatever. My husband then informed me that the "forms of law" were all complied with, and he therefore requested me to dress myself for a ride to Jacksonville, to enter the Insane Asylum as an inmate. I objected, and protested against being imprisoned _without any trial_. But to no purpose. My husband insisted upon it that I had no protection in the law, but himself, and that he was doing by me just as the laws of the State allowed him to do. I could not then credit this statement, but now _know_ it to be too sadly true; for the Statute of Illinois expressly states that a man may put his wife into an Insane Asylum without evidence of insanity. This law now stands on the 26th page, section 10, of the Illinois statute book, under the general head of "charities"! The law was passed February 15, 1851. I told my husband I should not go voluntarily into the Asylum, and leave my six children and my precious babe of eighteen months, without some kind of trial; and that the law of force, brute force, would be the only power that should thus put me there. I then begged of him to handle me gently, if he was determined to force me, as I was easily hurt, and should make no physical resistance. I was soon in the hands of the sheriff, who forced me from my home by ordering two men to carry me to the wagon which took me to the depot. Esquire Labrie, our nearest neighbor, who witnessed this scene, said he was willing to testify before any court under oath, that "Mrs. Packard was literally kidnapped." I was carried to the cars from the depot in the arms of two strong men, whom my husband appointed for this purpose, amid the silent and almost speechless gaze of a large crowd of citizens who had collected for the purpose of rescuing me from the hands of my persecutors. But they were prevented from executing their purpose by the lie Deacon Dole was requested by my husband to tell the excited crowd, viz: that "The Sheriff has legal papers to defend this proceeding," and they well knew that for them to resist the Sheriff, the laws would expose themselves to imprisonment. The Sheriff confessed afterwards to persons who are now willing to testify under oath, that he told them that he did not have a sign of a legal paper with him, simply because the probate court refused to give him any, because, as they affirmed, he had not given them one evidence of insanity in the case. Sheriff Burgess died while I was incarcerated. When once in the Asylum I was beyond the reach of all human aid, except what could come through my husband, since the law allows no one to take them out, except the one who put them in, or by his consent; and my husband determined never to take me out, until I recanted my new opinions, claiming that I was incurably insane so long as I could not return to my old standpoint of religious belief. Of course, I could not believe at my option, but only as light and evidence was presented to my own mind, and I was too conscientious to act the hypocrite, by professing to believe what I could not believe. I was therefore pronounced "hopelessly insane," and in about six weeks from the date of my imprisonment, my husband made his arrangements to have me, henceforth, legally regarded as hopelessly insane. In this defenceless, deplorable condition I lay closely imprisoned three years, being never allowed to step my foot on the ground after the first four months. At the expiration of three years, my oldest son, Theophilus, became of age, when he immediately availed himself of his manhood, by a legal compromise with his father and the trustees, wherein he volunteered to hold himself wholly responsible for my support for life; if his father would only consent to take me out of my prison. This proposition was accepted by Mr. Packard, with this proviso that if ever I returned to my own home and children he should put me in again for life. The Trustees had previously notified Mr. Packard that I must be removed, as they should keep me no longer. Had not this been the case, my son's proposition would doubtless have been rejected by him. The reasons why the Trustees took this position was, because they became satisfied that I was not a fit subject for that institution, in the following manner: On one of their official visits to the institution, I coaxed Dr. McFarland, superintendent of the Asylum, to let me go before them and "fire a few guns at Calvinism," as I expressed myself, that they might know and judge for themselves whether I deserved a life-long imprisonment for indulging such opinions. Dr. McFarland replied to my request, that the Trustees were Calvinists, and the chairman a member of the Presbyterian Synod of the United States. "Never mind," said I, "I don't care if they are, I am not afraid to defend my opinions even before the Synod itself. I don't want to be locked up here all my lifetime without doing something. But if they are Calvinists," I added, "you may be sure they will call me insane, and then you will have them to back you up in your opinion and position respecting me." This argument secured his consent to let me go before them. He also let me have two sheets of paper to write my opinions upon. With my document prepared, "or gun loaded," as I called it, and examined by the Doctor to see that all was right, that is, that it contained no exposures of himself, I entered the Trustees' room, arm in arm with the Doctor, dressed in as attractive and tasteful a style as my own wardrobe and that of my attendant's would permit. Mr. Packard was present, and he said to my friends afterwards that he never saw his wife look so "sweet and attractive" as I then did. After being politely and formally introduced to the Trustees, individually, I was seated by the chairman, to receive his permission to speak, in the following words: "Mrs. Packard, we have heard Mr. Packard's statement, and the Doctor said you would like to speak for yourself. We will allow you ten minutes for that purpose." I then took out my gold watch, (which was my constant companion in my prison,) and looking at it, said to the Doctor, "please tell me if I overgo my limits, will you?" And then commenced reading my document in a quiet, calm, clear, tone of voice. It commenced with these words: "Gentlemen, I am accused of teaching my children doctrines ruinous in their tendency, and such as alienate them from their father. I reply, that my teachings and practice both, are ruinous to Satan's cause, and do alienate my children from Satanic influences. I teach Christianity, my husband teaches Calvinism. They are antagonistic systems and uphold antagonistic authorities. Christianity upholds God's authority; Calvinism the devil's authority," &c., &c. Thus I went on, most dauntlessly and fearlessly contrasting the two systems, as I viewed them, until my entire document was read, without being interrupted, although my time had more than expired. Confident I had secured their interest as well as attention, I ventured to ask if I might be allowed to read another document I held in my hand, which the Doctor had not seen. The request was voted upon and met not only with an unanimous response in the affirmative, but several cried out: "Let her go on! Let us hear the whole!" This document bore heavily upon Mr. Packard and the Doctor both. Still I was tolerated. The room was so still I could have heard a clock tick. When I had finished, instead of then dismissing me, they commenced questioning me, and I only rejoiced to answer their questions, being careful however not to let slip any chance I found to expose the darkest parts of this foul conspiracy, wherein Mr. Packard and their Superintendent were the chief actors. Packard and McFarland both sat silent and speechless, while I fearlessly exposed their wicked plot against my personal liberty and my rights. They did not deny or contradict one statement I made, although so very hard upon them both. Thus nearly one hour was passed, when Mr. Packard was requested to leave the room. The Doctor left also, leaving me alone with the Trustees. These intelligent men at once endorsed my statements, and became my friends. They offered me my liberty at once, and said that anything I wanted they stood ready to do for me. Mr. Brown, the Chairman, said he saw it was of no use for me to go to my husband; but said they would send me to my children if I wished to go, or to my father in Massachusetts, or they would board me up in Jacksonville. I thanked them for their kind and generous offers; "but," said I, "it is of no use for me to accept of any one of them, for I am still Mr. Packard's wife, and there is no law in America to protect a wife from her husband. I am not safe from him outside these walls, on this continent, unless I flee to Canada; and there, I don't know as a fugitive wife is safe from her husband. The truth is, he is determined to keep me in an Asylum prison as long as I live, if it can be done; and since no law prevents his doing so, I see no way for me but to live and die in this prison. I may as well die here as in any other prison." These manly gentlemen apprehended my sad condition and expressed their real sympathy for me, but did not know what to advise me to do. Therefore they left it to me and the Doctor to do as we might think best. I suggested to the Doctor that I write a book, and in this manner lay my case before the People--the government of the United States--and ask for the protection of the laws. The Doctor fell in with this suggestion, and I accordingly wrote my great book of seven hundred pages, entitled "The Great Drama,--An Allegory," the first installment of which is already in print and six thousand copies in circulation. This occupied me nine months, which completed my three years of prison life. The Trustees now ordered Mr. Packard to take me away, as no one else could legally remove me. I protested against being put into his hands without some protection, knowing, as I did, that he intended to incarcerate me for life in Northampton Asylum, if he ever removed me from this. But, like as I entered the Asylum against my will, and in spite of my protest, so I was put out of it into the absolute power of my persecutor again, against my will, and in spite of my protest to the contrary. I was accordingly removed to Granville, Putnam County, Illinois; and placed in the family of Mr. David Field who married my adopted sister, where my son paid my board for about four months. During this time, Granville community became acquainted with me and the facts in the case, and after holding a meeting of the citizens on the subject the result was, that Sheriff Leaper was appointed to communicate to me their decision, which was, that I go home to my children taking their voluntary pledge as my protection; that, should Mr. Packard again attempt to imprison me without a trial, that they would use their influence to get him imprisoned in a penitentiary, where they thought the laws of this Commonwealth would place him. They presented me thirty dollars also to defray the expenses of my journey home to Manteno. I returned to my husband and little ones, only to be again treated as a lunatic. He cut me off from communication with this community, and my other friends, by intercepting my mail; made me a close prisoner in my own house; refused me interviews with friends who called to see me, so that he might meet with no interference in carrying out the plan he had devised to get me incarcerated again for life. This plan was providentially disclosed to me, by some letters he accidentally left in my room one night, wherein I saw that I was to be entered, in a few days, into Northampton Insane Asylum for life; as one of these letters from Doctor Prince, Superintendent of that Asylum, assured me of this fact. Another from his sister, Mrs. Marian Severance, of Massachusetts, revealed the mode in which she advised her brother to transfer me from my home prison to my Asylum prison. She advised him to let me go to New York, under the pretence of getting my book published, and have him follow in a train behind, assuring the conductors that I must be treated as an insane person, although I should deny the charge, as all insane persons did, and thus make sure of their aid as accomplices in this conspiracy against my personal liberty. The conductor must be directed to switch me off to Northampton, Mass., instead of taking me to New York, and as my through ticket would indicate to me that all was right, she thought this could be done without arousing my suspicions; then engage a carriage to transport me to the Asylum under the pretext of a hotel, and then lock me up for life as a state's pauper! Then, said she, you will have her out of the way, and can do as you please with her property, her children, and even her wardrobe; don't, says she, be even responsible this time for her clothing. (Mr. Packard was responsible for my body clothing in Jacksonville prison, but for nothing else. I was supported there three years as a state pauper. This fact, Mr. Packard most adroitly concealed from my rich father and family relatives, so that he could persuade my deluded father to place more of my patrimony in his hands, under the false pretense that he needed it to make his daughter more comfortable in the Asylum. My father sent him money for this purpose, supposing Mr. Packard was paying my board at the Asylum.) Another letter was from Dr. McFarland, wherein I saw that Mr. Packard had made application for my readmission there, and Dr. McFarland had consented to receive me again as an insane patient! But the Trustees put their veto upon it, and would not consent to his plea that I be admitted there again. Here is his own statement, which I copied from his own letter: "Jacksonville, December 18, 1863. Rev. Mr. Packard, Dear Sir: The Secretary of the Trustees has probably before this communicated to you the result of their action in the case of Mrs. Packard. It is proper enough to state that I favored her readmission"! Then follows his injunction to Mr. Packard to be sure not to publish any thing respecting the matter. Why is this? Does an upright course seek or desire concealment? Nay, verily: It is conscious guilt alone that seeks concealment, and dreads agitation lest his crimes be exposed. Mine is only one of a large class of cases, where he has consented to readmit a sane person, particularly the wives of men, whose influence he was desirous of securing for the support of himself in his present lucrative position. Yes, many intelligent wives and mothers did I leave in that awful prison, whose only hope of liberty lies in the death of their lawful husbands, or in a change of the laws, or in a thorough ventilation of that institution. Such a ventilation is needed, in order that justice be done to that class of miserable inmates who are now unjustly confined there. When I had read these letters over three or four times, to make it sure I had not mistaken their import, and even took copies of some of them, I determined upon the following expedient as my last and only resort, as a self defensive act. There was a stranger man who passed my window daily to get water from our pump. One day as he passed I beckoned to him to take a note which I had pushed down through where the windows come together, (my windows were firmly nailed down and screwed together, so that I could not open them,) directed to Mrs. A. C. Haslett, the most efficient friend I knew of in Manteno, wherein I informed her of my imminent danger, and begged of her if it was possible in any way to rescue me to do so, forthwith, for in a few days I should be beyond the reach of all human help. She communicated these facts to the citizens, when mob law was suggested as the only available means of rescue which lay in their power to use, as no law existed which defended a wife from a husband's power, and no man dared to take the responsibility of protecting me against my husband. And one hint was communicated to me clandestinely that if I would only break through my window, a company was formed who would defend me when once outside our house. This rather unlady-like mode of self defence I did not like to resort to, knowing as I did, if I should not finally succeed in this attempt, my persecutors would gain advantage over me, in that I had once injured property, as a reason why I should be locked up. As yet, none of my persecutors had not the shadow of capital to make out the charge of insanity upon, outside of my opinions; for my conduct and deportment had uniformly been kind, lady-like and Christian; and even to this date, January, 1866, I challenge any individual to prove me guilty of one unreasonable or insane act. The lady-like Mrs. Haslett sympathized with me in these views; therefore she sought council of Judge Starr of Kankakee City, to know if any law could reach my case so as to give me the justice of a trial of any kind, before another incarceration. The Judge told her that if I was a prisoner in my own house, and any were willing to take oath upon it, a writ of habeas corpus might reach my case and thus secure me a trial. Witnesses were easily found who could take oath to this fact, as many had called at our house to see that my windows were screwed together on the outside, and our front outside door firmly fastened on the outside, and our back outside door most vigilantly guarded by day and locked by night. In a few days this writ was accordingly executed by the Sheriff of the county, and just two days before Mr. Packard was intending to start with me for Massachusetts to imprison me for life in Northampton Lunatic Asylum, he was required by this writ to bring me before the court and give his reasons to the court why he kept his wife a prisoner. The reason he gave for so doing was, that I was Insane. The Judge replied, "Prove it!" The Judge then empannelled a jury of twelve men, and the following Trial ensued as the result. This trial continued five days. Thus my being made a prisoner at my own home was the only hinge on which my personal liberty for life hung, independent of mob law, as there is no law in the State that will allow a married woman the right of a trial against the charge of insanity brought against her by her husband; and God only knows how many innocent wives and mothers my case represents, who have thus lost their liberty for life, by this arbitrary power, unchecked as it is by no law on the Statute book of Illinois. THE GREAT TRIAL OF MRS. ELIZABETH P. W. PACKARD, WHO WAS CONFINED FOR THREE YEARS IN THE STATE ASYLUM, OF ILLINOIS, CHARGED BY HER HUSBAND, REV. THEOPHILUS PACKARD, WITH BEING INSANE. HER DISCHARGE FROM THE ASYLUM, AND SUBSEQUENT IMPRISONMENT AT HER OWN HOUSE BY HER HUSBAND. HER RELEASE ON A WRIT OF _Habeas Corpus_, AND THE QUESTION OF HER SANITY TRIED BY A JURY. HER SANITY FULLY ESTABLISHED. A FULL REPORT OF THE TRIAL, INCIDENTS, ETC. BY STEPHEN R. MOORE, ATTORNEY AT LAW. In preparing a report of this trial, the writer has had but one object in view, namely, to present a faithful history of the case as narrated by the witnesses upon the stand, who gave their testimony under the solemnity of an oath. The exact language employed by the witnesses, has been used, and the written testimony given in full, with the exception of a letter, written by Dr. McFarland, to Rev. Theophilus Packard, which letter was retained by Mr. Packard, and the writer was unable to obtain a copy. The substance of the letter is found in the body of the report, and has been submitted to the examination of Mr. Packard's counsel, who agree that it is correctly stated. This case was on trial before the Hon. Charles R. Starr, at Kankakee City, Illinois, from Monday, January 11th, 1864, to Tuesday the 19th, and came up on an application made by Mrs. Packard, under the _Habeas Corpus Act_, to be discharged from imprisonment by her husband in their own house. The case has disclosed a state of facts most wonderful and startling. Reverend Theophilus Packard came to Manteno, in Kankakee county, Illinois, seven years since, and has remained in charge of the Presbyterian Church of that place until the past two years. In the winter of 1859 and 1860, there were differences of opinion between Mr. Packard and Mrs. Packard, upon matters of religion, which resulted in prolonged and vigorous debate in the home circle. The heresies maintained by Mrs. Packard were carried by the husband from the fireside to the pulpit, and made a matter of inquiry by the church, and which soon resulted in open warfare; and her views and propositions were misrepresented and animadverted upon, from the pulpit, and herself made the subject of unjust criticism. In the Bible Class and in the Sabbath School, she maintained her religious tenets, and among her kindred and friends, defended herself from the obloquy of her husband. To make the case fully understood, I will here remark, that Mr. Packard was educated in the Calvinistic faith, and for twenty-nine years has been a preacher of that creed, and would in no wise depart from the religion of his fathers. He is cold, selfish and illiberal in his views, possessed of but little talent, and a physiognomy innocent of expression. He has large self-will, and his stubbornness is only exceeded by his bigotry. Mrs. Packard is a lady of fine mental endowments, and blest with a liberal education. She is an original, vigorous, masculine thinker, and were it not for her superior judgment, combined with native modesty, she would rank as a "strong-minded woman." As it is, her conduct comports strictly with the sphere usually occupied by woman. She dislikes parade or show of any kind. Her confidence that Right will prevail, leads her to too tamely submit to wrongs. She was educated in the same religious belief with her husband, and during the first twenty years of married life, his labors in the parish and in the pulpit were greatly relieved by the willing hand and able intellect of his wife. Phrenologists would also say of her, that her self-will was large, and her married life tended in no wise to diminish this phrenological bump. They have been married twenty-five years, and have six children, the issue of their intermarriage, the youngest of whom was eighteen months old when she was kidnapped and transferred to Jacksonville. The older children have maintained a firm position against the abuse and persecutions of their father toward their mother, but were of too tender age to render her any material assistance. Her views of religion are more in accordance with the liberal views of the age in which we live. She scouts the Calvinistic doctrine of man's total depravity, and that God has foreordained some to be saved and others to be damned. She stands fully on the platform of man's free agency and accountability to God for his actions. She believes that man, and nations, are progressive; and that in his own good time, and in accordance with His great purposes, Right will prevail over Wrong, and the oppressed will be freed from the oppressor. She believes slavery to be a national sin, and the church and the pulpit a proper place to combat this sin. These, in brief, are the points in her religious creed which were combatted by Mr. Packard, and were denominated by him as "emanations from the devil," or "the vagaries of a crazed brain." For maintaining such ideas as above indicated, Mr. Packard denounced her from the pulpit, denied her the privilege of family prayer in the home circle, expelled her from the Bible Class, and refused to let her be heard in the Sabbath School. He excluded her from her friends, and made her a prisoner in her own house. Her reasonings and her logic appeared to him as the ravings of a mad woman--her religion was the religion of the devil. To justify his conduct, he gave out that she was insane, and found a few willing believers, among his family connections. This case was commenced by filing a petition in the words following, to wit: STATE OF ILLINOIS, } KANKAKEE COUNTY. } _ss._ _To the Honorable_ CHARLES R. STARR, _Judge of the 20th Judicial Circuit in the State of Illinois_. William Haslet, Daniel Beedy, Zalmon Hanford, and Joseph Younglove, of said county, on behalf of Elizabeth P. W. Packard, wife of Theophilus Packard, of said county, respectfully represent unto your Honor, that said Elizabeth P. W. Packard is unlawfully restrained of her liberty, at Manteno, in the county of Kankakee, by her husband, Rev. Theophilus Packard, being forcibly confined and imprisoned in a close room of the dwelling-house of her said husband, for a long time, to wit, for the space of four weeks, her said husband refusing to let her visit her neighbors and refusing her neighbors to visit her; that they believe her said husband is about to forcibly convey her from out the State; that they believe there is no just cause or ground for restraining said wife of her liberty; that they believe that said wife is a mild and amiable woman. And they are advised and believe, that said husband cruelly abuses and misuses said wife, by depriving her of her winter's clothing, this cold and inclement weather, and that there is no necessity for such cruelty on the part of said husband to said wife; and they are advised and believe, that said wife desires to come to Kankakee City, to make application to your Honor for a writ of _habeas corpus_, to liberate herself from said confinement or imprisonment, and that said husband refused and refuses to allow said wife to come to Kankakee City for said purpose; and that these petitioners make application for a writ of _habeas corpus_ in her behalf, at her request. These petitioners therefore pray that a writ of _habeas corpus_ may forthwith issue, commanding said Theophilus Packard to produce the body of said wife, before your Honor, according to law, and that said wife may be discharged from said imprisonment. (Signed) WILLIAM HASLET. DANIEL BEEDY. ZALMON HANFORD. J. YOUNGLOVE. J. W. ORR, } H. LORING, } _Petitioners' Attorney_. STEPHEN R. MOORE, _Counsel_. STATE OF ILLINOIS, } KANKAKEE COUNTY. } _ss._ William Haslet, Daniel Beedy, Zalmon Hanford, and Joseph Younglove, whose names are subscribed to the above petition, being duly sworn, severally depose and say, that the matters and facts set forth in the above petition are true in substance and fact, to the best of their knowledge and belief. WILLIAM HASLET. DANIEL BEEDY. ZALMON HANFORD. J. YOUNGLOVE. Sworn to and subscribed before me, this } 11th day of January, A. D. 1864. } MASON B. LOOMIS, _J. P._ Upon the above petition, the Honorable C. R. Starr, Judge as aforesaid, issued a writ of _habeas corpus_, as follows: STATE OF ILLINOIS, } KANKAKEE COUNTY. } _ss._ _The People of the State of Illinois, To_ THEOPHILUS PACKARD WE COMMAND YOU, That the body of Elizabeth P. W. Packard, in your custody detained and imprisoned, as it is said, together with the day and cause of caption and detention, by whatsoever name the same may be called, you safely have before Charles R. Starr, Judge of the Twentieth Judicial Circuit, State of Illinois, at his chambers, at Kankakee City in the said county, on the 12th instant, at one o'clock, P. M., and to do and receive all and singular those things which the said Judge shall then and there consider of her in this behalf, and have you then and there this writ. Witness, Charles R. Starr, Judge aforesaid, this 11th day of January, A. D. 1864. CHARLES R. STARR, [SEAL.] _Judge of the 20th Judicial Circuit of the State of Illinois._ [_Revenue Stamp._] Indorsed: "By the _Habeas Corpus_ Act." To said writ, the Rev. Theophilus Packard made the following return: The within named Theophilus Packard does hereby certify, to the within named, the Honorable Charles R. Starr, Judge of the 20th Judicial Circuit of the State of Illinois, that the within named Elizabeth P. W. Packard is now in my custody, before your Honor. That the said Elizabeth is the wife of the undersigned, and is and has been for more than three years past insane, and for about three years of that time was in the Insane Asylum of the State of Illinois, under treatment, as an insane person. That she was discharged from said Asylum, without being cured, and is incurably insane, on or about the 18th day of June, A. D. 1863, and that since the 23rd day of October, the undersigned has kept the said Elizabeth with him in Manteno, in this county, and while he has faithfully and anxiously watched, cared for, and guarded the said Elizabeth, yet he has not unlawfully restrained her of her liberty; and has not confined and imprisoned her in a close room, in the dwelling-house of the undersigned, or in any other place or way, but, on the contrary, the undersigned has allowed her all the liberty compatible with her welfare and safety. That the undersigned is about to remove his residence from Manteno, in this State, to the town of Deerfield, in the county of Franklin, in the State of Massachusetts, and designs and intends to take his said wife Elizabeth with him. That the undersigned has never misused or abused the said Elizabeth, by depriving her of her winter's clothing, but, on the contrary, the undersigned has always treated the said Elizabeth with kindness and affection, and has provided her with a sufficient, quantity of winter clothing and other clothing; and that the said Elizabeth has never made any request of the undersigned, for liberty to come to Kankakee City, for the purpose of suing out a writ of _habeas corpus_. The undersigned hereby presents a letter from Andrew McFarland, Superintendent of the Illinois State Hospital, at Jacksonville, in this State, showing her discharge, and reasons of discharge, from said institution, which is marked "A," and is made a part of this return. And also presents a certificate from the said Andrew McFarland, under the seal of said hospital, marked "C," refusing to readmit the said Elizabeth again into said hospital, on the ground of her being incurably insane, which is also hereby made a part of this return. THEOPHILUS PACKARD. Dated _January 12, 1864_. The Court, upon its own motion, ordered an issue to be formed, as to the sanity or insanity of Mrs. E. P. W. Packard, and ordered a venire of twelve men, to aid the court in the investigation of said issue. And thereupon a venire was issued. The counsel for the respondent, Thomas P. Bonfield, Mason B. Loomis, and Hon. C. A. Lake, moved the court to quash the venire, on the ground that the court had no right to call a jury to determine the question, on an application to be discharged on writ of _habeas corpus_. The court overruled the motion; and thereupon the following jury was selected: John Stiles, Daniel G. Bean, V. H. Young, F. G. Hutchinson, Thomas Muncey, E. Hirshberg, Nelson Jarvais, William Hyer, Geo. H. Andrews, J. F. Mafet, Lemuel Milk, G. M. Lyons. CHRISTOPHER W. KNOTT was the first witness sworn by the respondent, to maintain the issue on his part, that she was insane; who being sworn, deposed and said: I am a practicing physician in Kankakee City. Have been in practice fifteen years. Have seen Mrs. Packard; saw her three or four years ago. Am not much acquainted with her. Had never seen her until I was called to see her at that time. I was called to visit her by Theophilus Packard. I thought her partially deranged on religious matters, and gave a certificate to that effect. I certified that she was insane upon the subject of religion. I have never seen her since. _Cross-examination._--This visit I made her was three or four years ago. I was there twice--one-half hour each time. I visited her on request of Mr. Packard, to determine if she was insane. I learned from him that he designed to convey her to the State Asylum. Do not know whether she was aware of my object, or not. Her mind appeared to be excited on the subject of religion; on all other subjects she was perfectly rational. It was probably caused by overtaxing the mental faculties. She was what might be called a monomaniac. Monomania is insanity on one subject. Three-fourths of the religious community are insane in the same manner, in my opinion. Her insanity was such that with a little rest she would readily have recovered from it. The female mind is more excitable than the male. I saw her perhaps one-half hour each time I visited her. I formed my judgment as to her insanity wholly from conversing with her. I could see nothing except an unusual zealousness and warmth upon religious topics. Nothing was said, in my conversation with her, about disagreeing with Mr. Packard on religious topics. Mr. Packard introduced the subject of religion the first time I was there: the second time, I introduced the subject. Mr. Packard and Mr. Comstock were present. The subject was pressed on her for the purpose of drawing her out. Mrs. Packard would manifest more zeal than most of people upon any subject that interested her. I take her to be a lady of fine mental abilities, possessing more ability than ordinarily found. She is possessed of a nervous temperament, easily excited, and has a strong will. I would say that she was insane, the same as I would say Henry Ward Beecher, Spurgeon, Horace Greely, and like persons, are insane. Probably three weeks intervened between the visits I made Mrs. Packard. This was in June, 1860. _Re-examined._--She is a woman of large, active brain, and nervous temperament. I take her to be a woman of good intellect. There is no subject which excites people so much as religion. Insanity produces, oftentimes, ill-feelings towards the best friends, and particularly the family, or those more nearly related to the insane person--but not so with monomania. She told me, in the conversation, that the Calvinistic doctrines were wrong, and that she had been compelled to withdraw from the church. She said that Mr. Packard was more insane than she was, and that people would find it out. I had no doubt that she was insane. I only considered her insane on that subject, and she was not bad at that. I could not judge whether it was hereditary. I thought if she was withdrawn from conversation and excitement, she could have got well in a short time. Confinement in any shape, or restraint, would have made her worse. I did not think it was a bad case; it only required rest. J. W. BROWN, being sworn, said: I am a physician; live in this city; have no extensive acquaintance with Mrs. Packard. Saw her three or four weeks ago. I examined her as to her sanity or insanity. I was requested to make a visit, and had an extended conference with her: I spent some three hours with her. I had no difficulty in arriving at the conclusion, in my mind, that she was insane. _Cross-examination._--I visited her by request of Mr. Packard, at her house. The children were in and out of the room; no one else was present. I concealed my object in visiting her. She asked me if I was a physician, and I told her no; that I was an agent, selling sewing machines, and had come there to sell her one. The first subject we conversed about was sewing machines. She showed no signs of insanity on that subject. The next subject discussed, was the social condition of the female sex. She exhibited no special marks of insanity on that subject, although she had many ideas quite at variance with mine, on the subject. The subject of politics was introduced. She spoke of the condition of the North and the South. She illustrated her difficulties with Mr. Packard, by the difficulties between the North and the South. She said the South was wrong, and was waging war for two wicked purposes: first, to overthrow a good government, and second, to establish a despotism on the inhuman principle of human slavery. But that the North, having right on their side, would prevail. So Mr. Packard was opposing her, to overthrow free thought in woman; that the despotism of man may prevail over the wife; but that she had right and truth on her side, and that she would prevail. During this conversation I did not fully conclude that she was insane. I brought up the subject of religion. We discussed that subject for a long time, and then I had not the slightest difficulty in concluding that she was hopelessly insane. _Question._ Dr., what particular idea did she advance on the subject of religion that led you to the conclusion that she was hopelessly insane? _Answer._ She advanced many of them. I formed my opinion not so much on any one idea advanced, as upon her whole conversation. She then said that she was the "Personification of the Holy Ghost." I did not know what she meant by that. _Ques._ Was not this the idea conveyed to you in that conversation:--That there are three attributes of the Deity--the Father, the Son, and the Holy Ghost? Now, did she not say, that the attributes of the Father were represented in mankind, in man; that the attributes of the Holy Ghost were represented in woman; and that the Son was the fruit of these two attributes of the Deity? _Ans._ Well, I am not sure but that was the idea conveyed, though I did not fully get her idea at the time. _Ques._ Was not that a new idea to you in theology? _Ans._ It was. _Ques._ Are you much of a theologian? _Ans._ No. _Ques._ Then because the idea was a novel one to you, you pronounced her insane. _Ans._ Well, I pronounced her insane on that and other things that exhibited themselves in this conversation. _Ques._ Did she not show more familiarity with the subject of religion and the questions of theology, than you had with these subjects? _Ans._ I do not pretend much knowledge on these subjects. _Ques._ What else did she say or do there, that showed marks of insanity? _Ans._ She claimed to be better than her husband--that she was right--and that he was wrong--and that all she did was good, and all he did was bad; that she was farther advanced than other people, and more nearly perfection. She found fault particularly that Mr. Packard would not discuss their points of difference on religion in an open, manly way, instead of going around and denouncing her as crazy to her friends and to the church. She had a great aversion to being called insane. Before I got through the conversation she exhibited a great dislike to me, and almost treated me in a contemptuous manner. She appeared quite lady-like. She had a great reverence for God, and a regard for religious and pious people. _Re-examined._--_Ques._ Dr., you may now state all the reasons you have for pronouncing her insane. _Ans._ I have written down, in order, the reasons which I had, to found my opinion on, that she was insane. I will read them. 1. That she claimed to be in advance of the age thirty or forty years. 2. That she disliked to be called insane. 3. That she pronounced me a copperhead, and did not prove the fact. 4. An incoherency of thought. That she failed to illuminate me and fill me with light. 5. Her aversion to the doctrine of the total depravity of man. 6. Her claim to perfection or nearer perfection in action and conduct. 7. Her aversion to being called insane. 8. Her feelings towards her husband. 9. Her belief that to call her insane and abuse her, was blasphemy against the Holy Ghost. 10. Her explanation of this idea. 11. Incoherency of thought and ideas. 12. Her extreme aversion to the doctrine of the total depravity of mankind, and in the same conversation, saying her husband was a specimen of man's total depravity. 13. The general history of the case. 14. Her belief that some calamity would befall her, owing to my being there, and her refusal to shake hands with me when I went away. 15. Her viewing the subject of religion from the osteric standpoint of Christian exegetical analysis, and agglutinating the polsynthetical ectoblasts of homogeneous asceticism. The witness left the stand amid roars of laughter; and it required some moments to restore order in the court-room. JOSEPH H. WAY, sworn, and said: I am a practicing physician in Kankakee City, Illinois. I made a medical examination of Mrs. Packard a few weeks since, at her house; was there perhaps two hours. On most subjects she was quite sane. On the subject of religion I thought she had some ideas that are not generally entertained. At that time I thought her to be somewhat deranged or excited on that subject; since that time I have thought perhaps I was not a proper judge, for I am not much posted on disputed points in theology, and I find that other people entertain similar ideas. They are not in accordance with my views, but that is no evidence that she is insane. _Cross-examined._--I made this visit at her house, or his house, perhaps, at Manteno. I conversed on various subjects. She was perfectly sane on every subject except religion, and I would not swear now that she was insane. She seemed to have been laboring under an undue excitement on that subject. She has a nervous temperament, and is easily excited. She said she liked her children, and that it was hard to be torn from them. That none but a mother could feel the anguish she had suffered; that while she was confined in the Asylum, the children had been educated by their father to call her insane. She said she would have them punished if they called their own mother insane, for it was not right. ABIJAH DOLE, sworn, and says: I know Mrs. Packard; have known her twenty-five or thirty years. I am her brother-in-law. Lived in Manteno seven years. Mrs. Packard has lived there six years. I have been sent for several times by her and Mr. Packard, and found her in an excited state of mind. I was there frequently; we were very familiar. One morning early, I was sent for: she was in the west room; she was in her night clothes. She took me by the hand and led me to the bed. Libby was lying in bed, moaning and moving her head. Mrs. Packard now spoke and said, "How pure we are." "I am one of the children of heaven; Libby is one of the branches." "The woman shall bruise the serpent's head." She called Mr. Packard a devil. She said, Brother Dole, these are serious matters. If Brother Haslet will help me, we will crush the body. She said, Christ had come into the world to save men, and that she had come to save woman. Her hair was disheveled. Her face looked wild. This was over three years ago. I was there again one morning after this. She came to me. She pitied me for marrying my wife, who is a sister to Mr. Packard; said I might find an agreeable companion. She said if she had cultivated amativeness, she would have made a more agreeable companion. She took me to another room and talked about going away; this was in June before they took her to the State Hospital. She sent for me again; she was in the east room; she was very cordial. She wanted me to intercede for Theophilus, who was at Marshall, Michigan; she wanted him to stay there, and it was thought not advisable for him to stay. We wished him to come away, but did not tell her the reasons. He was with a Swedenborgian. After this I was called there once in the night. She said she could not live with Mr. Packard, and she thought she had better go away. One time she was in the Bible class. The question came up in regard to Moses smiting the Egyptian; she thought Moses had acted too hasty, but that all things worked for the glory of God. I requested her to keep quiet, and she agreed to do it. I have had no conversation with Mrs. Packard since her return from the Hospital; she will not talk with me because she thinks I think she is insane. Her brother came to see her; he said he had not seen her for four or five years. I tried to have Mrs. Packard talk with him, and she would not have anything to do with him because he said she was a crazy woman. She generally was in the kitchen when I was there, overseeing her household affairs. I was superintendent of the Sabbath School. One Sabbath, just at the close of the school, I was behind the desk, and almost like a vision she appeared before me, and requested to deliver or read an address to the school. I was much surprised; I felt so bad, I did not know what to do. (At this juncture the witness became very much affected, and choked up so that he could not proceed, and cried so loud that he could be heard in any part of the court-room. When he became calm, he went on and said), I was willing to gratify her all I could, for I know she was crazy, but I did not want to take the responsibility myself, so I put it to a vote of the school, if she should be allowed to read it. She was allowed to read it. It occupied ten or fifteen minutes in reading. I cannot state any of the particulars of that paper. It bore evidence of her insanity. She went on and condemned the church, all in all, and the individuals composing the church, because they did not agree with her. She looked very wild and very much excited. She seemed to be insane. She came to church one morning just as services commenced, and wished to have the church act upon her letter withdrawing from the church immediately. Mr. Packard was in the pulpit. She wanted to know if Brother Dole and Brother Merrick were in the church, and wanted them to have it acted upon. This was three years ago, just before she was taken away to the hospital. _Cross-examined._--I supposed when I first went into the room that her influence over the child had caused the child to become deranged. The child was nine years old. I believed that she had exerted some mesmeric or other influence over the child, that caused it to moan and toss its head. The child had been sick with brain fever; I learned that after I got there. I suppose the mother had considerable anxiety over the child; I suppose she had been watching over the child all night, and that would tend to excite her. The child got well. It was sick several days after this; it was lying on the bed moaning and tossing its head; the mother did not appear to be alarmed. Mr. Packard was not with her; she was all alone; she did not say that Mr. Packard did not show proper care for the sick child. I suppose she thought Libby would die. Her ideas on religion did not agree with mine, nor with my view of the Bible. I knew Mr. Packard thought her insane, and did not want her to discuss these questions in the Sabbath School. I knew he had opposed her more or less. This letter to the church was for the purpose of asking for a letter from the church. _Question._ Was it an indication of insanity that she wanted to leave the Presbyterian Church? _Answer._ I think it strange that she should ask for letters from the church. She would not leave the church unless she was insane. I am a member of the church--I believe the church is right. I believe everything the church does is right. I believe everything in the Bible. _Ques._ Do you believe literally that Jonah was swallowed by a whale, and remained in its belly three days and was then cast up? _Ans._ I do. _Ques._ Do you believe literally that Elijah went direct up to Heaven in a chariot of fire--that the chariot had wheels, and seats, and was drawn by horses? _Ans._ I do--for with God all things are possible. _Ques._ Do you believe Mrs. Packard was insane, and is insane? _Ans._ I do. I never read any of Swedenborg's works, I do not deem it proper for persons to investigate new doctrines or systems of theology. _Re-examined._--I became a Presbyterian eight years ago. I was formerly a Congregationalist; Mr. Packard was a Congregationalist. _Re-cross-examination._--_Ques._ Was it dangerous for you to examine the doctrines or theology embraced in the Presbyterian Church, when you left the Congregational Church, and joined it? _Ans._ I will not answer so foolish a question. Witness discharged. JOSEPHUS B. SMITH, sworn, says: Am aged fifty years; have known Mrs. Packard seven years. I cannot tell the first appearance of any abnormal condition of her mind. I first saw it at the Sabbath School. She came in and wished to read a communication. I do not recollect everything of the communication. She did not read the letter, but presented it to Brother Dole. She said something about her small children, and left. She seemed to be excited. There was nothing very unusual in her appearance. Her voice was rather excited; it could be heard nearly over the house. I merely recall the circumstance, but recollect scarce anything else. It was an unusual thing for any person to come in and read an address. I do not recollect anything unusual in her manner. (At this stage of the trial, an incident occurred that for a time stopped all proceedings, and produced quite an excitement in the court-room; and this report would not be faithful if it were passed over unnoticed. Mrs. Dole, the sister of Mr. Packard, came in, leading the little daughter of Mrs. Packard, and in passing by the table occupied by Mrs. Packard and her counsel, the child stopped, went up to her mother, kissed and hugged her, and was clinging to her with all child-like fervor, when it was observed by Mrs. Dole, who snatched the child up--and bid it "come away from that woman;" adding, "She is not fit to take care of you--I have you in my charge;" and thereupon led her away. The court-room was crowded to its utmost, and not a mother's heart there but what was touched, and scarce a dry eye was seen. Quite a stir was made, but the sheriff soon restored order.) _Cross-examined._--I had charge of the Sunday School; am a member of Mr. Packard's church. I knew Mr. Packard had considered her insane; knew they had had difficulties. I was elected superintendent of the school in place of Brother Dole, for the special purpose of keeping Mrs. Packard straight. SYBIL DOLE, sworn, and says-- I am Mr. Packard's sister; have known her twenty-five years. Her natural disposition is very kind and sweet. Her education is very good; her morals without a stain or blemish. I first observed a change in her, after we came to Manteno. I had a conversation with her, when she talked an hour without interruption; she talked in a wild, excited manner; the subject was partly religion. She spoke of her own attainments; she said she had advanced in spiritual affairs. This was two or three years before she went to the Asylum. The next time was when she was preparing to go to York State. She was weeping and sick. Her trunk was packed and ready to go, but Mr. Packard was sick. From her voice, and the manner she talked, I formed an opinion of her insanity. She talked on various points; the conversation distressed me very much; I could not sleep. She was going alone; we tried to persuade her not to go alone. She accused Mr. Packard very strangely of depriving her of her rights of conscience--that he would not allow her to think for herself on religious questions, because they disagreed on these topics. She made her visit to New York. The first time I met her after her return, her health was much improved; she appeared much better. In the course of a few weeks, she visited at my house. At another time, one of the children came up, and wanted me to go down; I did so. She was very much excited about her son remaining at Marshall. She was wild. She thought it was very wrong and tyrannical for Mr. Packard not to permit her son to remain there. She said very many things which seemed unnatural. Her voice, manner and ways, all showed she was insane. I was there when Mr. Baker came there, to see about Theophilus remaining at Marshall with him. She was calmer than she was the day before. She said that she should spend the day in fasting and prayer. She said he had came in unexpectedly, and they were not prepared to entertain strangers. She was out of bread, and had to make biscuit for dinner. (One gentleman in the crowd turned to his wife and said, "Wife, were you ever out of bread, and had to make biscuit for dinner? I must put you into an Insane Asylum! No mistake!") I occupied the same room and bed with her. She went to Mr. Packard's room, and when she returned, she said, that if her son was not permitted to remain at Marshall, it would result in a divorce. She got up several times during the night. She told me how much she enjoyed the family circle. She spoke very highly of Mr. Packard's kindness to her. She spoke particularly of the tenderness which had once existed between them. I did not notice anything very remarkable in her conduct toward Mr. Packard, until just before she was sent to the Hospital. One morning afterward, I went to her house with a lady; we wanted to go in, and were admitted. She seemed much excited. She said, "You regard me insane. I will thank you to leave my room." This was two or three months before she was sent to Jacksonville. Mr. Packard went out. She put her hand on my shoulder, and said she would thank me to go out too. I went out. I afterward wanted to take the baby home. One morning I went down to see her, and prepared breakfast for her. She appeared thankful, and complimented me on my kindness. She consented for me to take the child; I did so. In a short time, about ten days after, the other children came up, and said, that she wanted to take her own child. I took the child down. Her appearance was very wild. She was filled with spite toward Mr. Packard. She defied me to take the child again, and said that she would evoke the strong arm of the law to help her keep it. At another time, at the table, she was talking about religion, when Mr. Packard remonstrated with her; she became angry, and told him she would talk what and when she had a mind to. She rose up from the table, and took her tea-cup, and left the room in great violence. _Cross-examined._--I am a member of Mr. Packard's church, and am his sister. He and I have often consulted together about Mrs. Packard. Mr. Packard was the first to ever suggest that she was insane; after that, I would more carefully watch her actions to find out if she was insane. The religious doctrines she advanced were at variance with those entertained by our church. She was a good, neat, thrifty and careful housekeeper. She was economical; kept the children clean and neatly dressed. She was sane on all subjects except religion. I do not think she would have entertained these ideas, if she had not been insane. I do not think she would have wanted to have withdrawn from our church, and unite with another church, if she had not been insane. She said she would worship with the Methodists. They were the only other Protestant denomination that held service at Manteno at the time. I knew when she was taken to Jacksonville Hospital. She was taken away in the morning. She did not want to go; we thought it advisable for her to go. SARAH RUMSEY, sworn, and says: Have lived one week in Mrs. Packard's house. I was present at the interview when Mrs. Packard ordered us to leave the room. Mrs. Packard was very pale and angry. She was in an undress, and her hair was down over her face. It was 11 o'clock in the forenoon--I staid at the house; Mrs. Packard came out to the kitchen. She was dressed then. She said she had come to reveal to me what Mr. Packard was. She talked very rapidly; she would not talk calm. She said Mr. Packard was an arch deceiver; that he and the members of his church had made a conspiracy to put her into the Insane Asylum; she wanted me to leave the conspirators. Soon after dinner she said, "Come with me, I have something to tell you." She said she had a new revelation; it would soon be here; and that she had been chosen by God for a particular mission. She said that all who decided with her, and remained true to her, would be rewarded by the millennium, and if I would side with her, that I would be a chief apostle in the millennium. She wanted to go to Batavia, but that Mr. Packard would give her no money to take her there; that Mr. Packard called her insane. She started to go out, and Mr. Packard made her return; took her into Mr. Comstock's, and Mr. Comstock made her go home. I saw her again when Libby had the brain fever. She was disturbed because the family called her insane. She and Libby were crying together; they cried together a long time. This was Tuesday. She would not let me into the room. The next morning while at breakfast Mr. Labrie passed the window and came in. He said that Georgie had been over for him, and said that they were killing his mother. She acted very strangely all the time; was wild and excited. _Cross-examined._--Knew Mr. Packard two years before I went there to live. He was the pastor of our church. I am a member of the church. I did not attend the Bible class. Brother Dole came to me and said somebody of the church should go there, and stay at the house, and assist in packing her clothes and getting her ready to take off to the Hospital, and stay and take care of the children. I consented to go; I heard that Brother Packard requested Brother Dole to come for me. I never worked out before. They had a French servant, before I went there; Mr. Packard turned her off when I came, the same day. I did not want to take Mrs. Packard away. I did not think she exhibited any very unusual excitement, when the men came here to take her away. Doctors Merrick and Newkirk were the physicians who came there with Sheriff Burgess. She did not manifest as much excitement, when being taken away, as I would have done, under the same circumstances; any person would have naturally been opposed to being carried away. The church had opposed her, in disseminating her ideas in the church; I was opposed to her promulgating her religious ideas in the church; I thought them wrong, and injurious. I was present at the Sabbath School when she read the paper to the school; I thought that bore evidence of insanity. It was a refutation of what Mrs. Dixon had written; I cannot give the contents of the paper now. I was present when she read a confession of her conduct to the church; she had had her views changed partially, from a sermon preached upon the subject of the sovereignty and immutability of God. I did not think it strange conduct that she changed her views; and never said so. This was in the spring before the June when they took her away. The article she read in the school was by the permission of the school. I was present when she presented a protest against the church for refusing to let her be heard; I have only an indistinct recollection of it; it was a protest because they refused to listen to her. Mr. Dole was the only person who came to the house when she was taken away, except the men with Burgess. She said that Mr. Packard had deprived her of the liberty of conscience in charging her to be insane, when she only entertained ideas new to him. I thought it was an evidence of insanity, because she maintained these ideas. I do not know that many people entertain similar ideas. I suppose a good many do not think the Calvinistic doctrine is right, they are not necessarily insane because they think so. When she found I was going to stay in the house, and that the French servant had been discharged, she ordered me into the kitchen; before that, she had treated me kindly as a visitor. I thought it was an evidence of insanity for her to order me into the kitchen; she ought to have known that I was not an ordinary servant. The proper place for the servant is in the kitchen at work, and not in the parlor; I took the place of the servant girl for a short time. She wanted the flower beds in the front yard cleaned out, and tried to get Mr. Packard to do it; he would not do it. She went and put on an old dress and went to work, and cleaned the weeds out, and worked herself into a great heat. It was a warm day; she staid out until she was almost melted down with the heat. _Question._ What did she do then? _Answer._ She went to her room and took a bath, and dressed herself, and then lay down exhausted. She did not come down to dinner. _Ques._ And did you think that was an evidence of insanity? _Ans._ I did--the way it was done. _Ques._ What would you have done under similar circumstances? Would you have set down in the clothes you had worked in? _Ans._ No. _Ques._ Probably you would have taken a bath and changed your clothes too. And so would any lady, would they not? _Ans._ Yes. _Ques._ Then would you call yourself insane? _Ans._ No. But she was angry and excited, and showed ill-will. She was very tidy in her habits; liked to keep the house clean, and have her yard and flowers look well. She took considerable pains with these things. I remained there until she was taken away; I approved taking her away; I deemed her dangerous to the church; her ideas were contrary to the church, and were wrong. The baby was eighteen months old when she was taken away. She was very fond of her children and treated them very kindly. Never saw her misuse them. Never heard that she had misused them. Never heard that she was dangerous to herself or to her family. Never heard that she had threatened or offered to destroy anything, or injure any person. JUDGE BARTLETT was next called to the stand. Am acquainted with Mrs. Packard. Had a conversation with her on religious topics. We agreed very well in most things. She did not say she believed in the transmigration of souls; she said some persons had expressed that idea to her, but she did not believe it. It was spoken of lightly. She did not say ever to me, that Mr. Packard's soul would go into an ox. She did not say anything about her being related to the Holy Ghost. I thought then, and said it, that religious subjects were her study, and that she would easily be excited on that subject. I could not see that she was insane. I would go no stronger than to say, that her mind dwelt on religious subjects. She could not be called insane, for thousands of people believe as she does, on religion. MRS. SYBIL DOLE, recalled. At the time she got up from the table she went out. She said, "I will have no fellowship with the unfruitful works of darkness. No! not so much as to eat with them." _Re-cross-examined._--_Question._ Did you deem that an evidence of insanity? _Answer._ I did. _Ques._ She called Mr. Packard the unfruitful works of darkness? _Ans._ I suppose so. _Ques._ Did she also include you? _Ans._ She might have done so. _Ques._ This was about the time that her husband was plotting to kidnap her, was it not? _Ans._ It was just before she was removed to the Asylum. _Ques._ He had been charging her with insanity, had he not, at the table? _Ans._ He had. The prosecution now wished to adjourn the court for ten days, to enable them to get Dr. McFarland, Superintendent of the State Hospital, who, they claimed, would testify that she was insane. Counsel stated, he had been telegraphed to come, and a reply was received, that he was in Zanesville, Ohio, and would return in about ten days. They claimed his testimony would be very important. This motion the counsel of Mrs. Packard opposed, as it was an unheard-of proceeding to continue a cause after the hearing was commenced, to enable a party to hunt up testimony. The matter was discussed on each side for a considerable length of time, when the court held that the defense should go on with their testimony, and after that was heard, then the court would determine about continuing the case to get Dr. McFarland, and perhaps he could be got before the defense was through, and if so, he might be sworn; and held that the defense should go on now. The counsel of Mrs. Packard withdrew for consultation, and in a brief time returned, and announced to the court that they would submit the case without introducing any testimony, and were willing to submit it without argument. The counsel for Mr. Packard objected to this, and renewed the motion for a continuance; which the court refused. The counsel for Mr. Packard then offered to read to the jury a letter from Dr. McFarland, dated in the month of December, 1863, written to Rev. Theophilus Packard; and also a certificate, under the seal of the State Hospital at Jacksonville, certifying that Mrs. Packard was discharged from the institution in June, 1863, and was incurably insane, which certificate was signed by Dr. McFarland, the Superintendent. To the introduction of this to the jury, the counsel for Mrs. Packard objected, as being incompetent testimony, and debarred the defense of the benefit of a cross-examination. The court permitted the letter and certificate to be read to the jury. These documents were retained by Rev. Theophilus Packard, and the reporter has been unable to obtain copies of them. The letter is dated in December, 1863, at the State Hospital, Jacksonville, Illinois, and written to Rev. Theophilus Packard, wherein Dr. McFarland writes him that Mrs. Packard is hopelessly insane, and that no possible good could result by having her returned to the Hospital; that the officers of the institution had done everything in their power to effect a cure, and were satisfied she could not be cured, and refused to receive her into the institution. The certificate, under the seal of the Hospital, was a statement, dated in June, 1863, at Jacksonville, Illinois, setting forth the time (three years) that Mrs. Packard had been under treatment, and that she had been discharged, as beyond a possibility of being cured. The above is the import of these documents, which the reporter regrets he cannot lay before the public in full. The prosecution now announced that they closed their case. DEFENSE. J. L. SIMINGTON was the first witness called for the defense. Being sworn, he said I live in Manteno; lived there since 1859, early in the spring. Knew Rev. Mr. Packard and Mrs. Packard. First became acquainted with them in 1858; I was then engaged in the ministry of the Methodist Church. I have practiced medicine eleven years. I was consulted as a family physician by Mrs. Packard in 1860. Was quite well acquainted with Mrs. Packard, and with the family. Lived fifty or sixty rods from their house. Saw her and the family almost daily. I did not see anything unusual in her, in regard to her mind. I never saw anything I thought insanity with her. So far as I know she was a sane woman. I have seen her since she came from the Hospital; have seen nothing since to indicate she was insane. My opinion is, she is a sane woman. No cross-examination was made. Dr. J. D. MANN, sworn, and says: I live in Manteno; have lived there nine years. Practiced medicine there six years. I am not very intimately acquainted with either Mr. or Mrs. Packard. Mr. Packard invited me to go to his house to have an interview with Mrs. Packard. I went at his request. He requested me to make a second examination, which I did. There had been a physician there before I went. The last time, he wanted me to meet Dr. Brown, of this city, there. This was late in November last. He introduced me to Mrs. Packard. I had known her before she was taken to the Hospital, and this was the first time I had seen her since she had returned. I was there from one to two hours. I then made up my mind, as I had made up my mind from the first interview, that I could find nothing that indicated insanity. I did not go when Dr. Brown was there. Mr. Packard had told me she was insane, and my prejudices were, that she was insane. He wanted a certificate of her insanity, to take East with him. I would not give it. The witness was not cross-examined. JOSEPH E. LABRIE, sworn, and says: Have known Mrs. Packard six years; lived fifteen or twenty rods from their house. Knew her in spring of 1860. Saw her nearly every day--sometimes two or three times a day. I belong to the Catholic Church. Have seen her since her return from Jacksonville. I have seen nothing that could make me think her insane. I always said she was a sane woman, and say so yet. _Cross-examined._--I am not a physician. I am not an expert. She might be insane, but no common-sense man could find it out. _Re-examined._--I am a Justice of the Peace, and Notary Public. Mr. Packard requested me to go to his house and take an acknowledgment of a deed from her. I went there, and she signed and acknowledged the deed. This was within the past two months. _Re-cross-examined._--I was sent for to go to the house in the spring of 1860. My wife was with me. It was about taking her to Jacksonville. Mrs. Packard would not come to the room where I was. I stayed there only about twenty minutes. Have been there since she returned from the Hospital. The door to her room was locked on the outside. Mr. Packard said, he had made up his mind to let no one into her room. The counsel for Mrs. Packard offered to read to the jury the following paper, which had been referred to by the witnesses, as evidence of Mrs. Packard's insanity, and which Deacon Smith refused to hear read. The counsel for Mr. Packard examined the paper, and admitted it was the same paper. The counsel for Mrs. Packard then requested permission of the court for Mrs. Packard to read it to the jury, which was most strenuously opposed. The court permitted Mrs. Packard to read it to the jury. Mrs. Packard arose, and read in a distinct tone of voice, so that every word was heard all over the court-room. HOW GODLINESS IS PROFITABLE DEACON SMITH--A question was proposed to this class, the last Sabbath Brother Dole taught us, and it was requested that the class consider and report the result of their investigations at a future session. May I now bring it up? The question was this: "Have we any reason to expect that a Christian farmer, _as a Christian_, will be any more successful in his farming operations, than an impenitent sinner--and if _not_, how is it that godliness is profitable unto all things? Or, in other words, does the _motive_ with which one prosecutes his secular business, other things being equal, make any difference in the _pecuniary_ results?" Mrs. Dixon gave it as her opinion, at the time, that the motive _did_ affect the pecuniary results. Now the _practical_ result to which this conclusion leads, is such as will justify us in our judging of Mrs. Dixon's true _moral_ character, next fall, by her _success_ in her farming operations this summer. My opinion differs from hers on this point; and my _reasons_ are here given in writing since I deem it necessary for _me_, under the existing state of feeling toward me, to put into a written form _all_ I have to say, in the class, to prevent misrepresentation. Should I be appropriating an unreasonable share of time, as a pupil, Mr. Smith, to occupy four minutes of your time in reading them? I should like very much to read them, that the class may pass their honest criticisms upon them. AN ANSWER TO THE QUESTION. I think we have no _intelligent_ reason for believing that the motives with which we prosecute our secular business, have any influence in the _pecuniary_ results. My reasons are _common sense_ reasons, rather than strictly Bible proofs, viz.: I regard man as existing in three distinct departments of being, viz., his physical or animal, his mental or intellectual, his moral or spiritual; and each of these three distinct departments are under the control of _laws_, peculiar to itself; and these different laws do not interchange with, or affect each other's department. For instance, a very _immoral_ man may be a very _healthy_, long-lived man; for, notwithstanding he violates the _moral_ department, he may live in conformity to the _physical_ laws of his animal nature, which secure to him his physical health. And, on the other hand, a very moral man may suffer greatly from a diseased body, and be cut off in the very midst of his usefulness by an early death, in consequence of having violated the physical laws of his animal constitution. But on the moral plane he is the _gainer_, and the immoral man is the _loser_. So our success in business depends upon our conformity to _those laws_ on which success depends--_not_ upon the _motives_ which act _only_ on the moral plane. On _this_ ground, the Christian farmer has no more _reason_ to expect success in his farming operations, than the impenitent sinner. In either case, the foundation for success must depend upon the degree of _fidelity_ with which the _natural laws_ are applied, which cause the natural result--_not_ upon the _motives_ of the operator; since these moral acts receive their penalty and reward on an entirely different plane of his being. Now comes in the question, how then is it true, that "godliness is _profitable_ unto all things," if godliness is no guarantee to success in business pursuits? I reply, that the profits of godliness cannot mean, simply, _pecuniary_ profits, because this would limit the gain of godliness to this world, alone; whereas, it is profitable not only for _this life_, but also for the _life to come_. Gain and loss, dollars and cents, are not the coins current in the spiritual world. But happiness and misery are coins which are current in _both_ worlds. Therefore, it appears to me, that happiness is the profit attendant upon godliness, and for this reason, a _practically godly_ person, who lives in conformity to all the various laws of his entire being, may expect to secure to himself, as a natural result, a greater amount of happiness than the ungodly person. So that, in this sense, "Godliness is profitable unto all things," to every department of our being. E. P. W. PACKARD. MANTENO, March 22, 1860. Mrs. Packard then stated that the above was presented to the class, the 15th day of the following April, and was _rejected_ by the teacher Deacon Smith, on the ground of its being irrelevant to the subject, since she had not confined herself to the Bible alone for proof of her position. As she took her seat, a murmur of applause arose from every part of the room, which was promptly suppressed by the sheriff. DANIEL BEEDY, sworn, and says: I live in Manteno. Have known Mrs. Packard six years; knew her in the spring of 1860. I lived a mile and a half from them. Have seen her very frequently since her return from Jacksonville. Had many conversations with her before she was taken away, and since her return. She always appeared to me like a sane woman. I heard she was insane, and my wife and I went to satisfy ourselves. I went there soon after the difficulties in the Bible class. She is not insane. We talked about religion, politics, and various matters, such as a grey-haired old farmer could talk about, and I saw nothing insane about her. Mr. BLESSING, sworn, and says: I live in Manteno; have known Mrs. Packard six years; knew her in the spring of 1860; lived eighty rods from their house. She visited at my house. I have seen her at church. She attended the Methodist church for a while after the difficulties commenced, and then I saw her every Sunday. I never thought her insane. After the word was given out by her husband that she was insane, she claimed my particular protection, and wanted me to obtain a trial for her by the laws of the land, and such an investigation she said she was willing to stand by. She claimed Mr. Packard was insane, if any one was. She begged for a trial. I did not then do anything, because I did not like to interfere between man and wife. I never saw anything that indicated insanity. She was always rational. Had conversations with her since her return. She first came to my house. She claimed a right to live with her family. She considered herself more capable of taking care of her family than any other person. I saw her at Jacksonville. I took Dr. Shirley with me to test her insanity. Dr. Shirley told me she was not insane. Cross-examination waived. Mrs. BLESSING, sworn, and says: Have known Mrs. Packard seven years; knew her in 1860. Lived near them; we visited each other as neighbors. She first came to our house when she returned from Jacksonville. I did not see anything that indicated that she was insane. I saw her at Jacksonville. She had the keys, and showed me around. I heard the conversation there with Dr. Shirley; they talked about religion; did not think she talked unnatural. When I first went in, she was at work on a dress for Dr. McFarland's wife. I saw her after she returned home last fall, quite often, until she was locked in her room. On Monday after she got home, I called on her; she was at work; she was cleaning up the feather beds; they needed cleaning badly. I went there afterward; her daughter let me in. On Saturday before the trial commenced, I was let into her room by Mr. Packard; she had no fire in it; we sat there in the cold. Mr. Packard had a handful of keys, and unlocked the door and let me in. Mrs. Hanford was with me. Before this, Mrs. Hanford and myself went there to see her; he would not let us see her; he shook his hand at me, and threatened to put me out. Mrs. HASLET, sworn, and said: Know Mrs. Packard very well; have known her since they lived in Manteno; knew her in the spring of 1860; and since she returned from Jacksonville, we have been on intimate terms. I never saw any signs of insanity with her. I called often before she was kidnapped and carried to Jacksonville, and since her return. I recollect the time Miss Rumsey was there; I did not see anything that showed insanity. I called to see her in a few days after she returned from Jacksonville; she was in the yard, cleaning feather beds. I called again in a few days; she was still cleaning house. The house needed cleaning; and when I again called, it looked as if the mistress of the house was at home. She had no hired girl. I went again, and was not admitted. I conversed with her through the window; the window was fastened down. The son refused me admission. The window was fastened with nails on the inside, and by two screws, passing through the lower part of the upper sash and the upper part of the lower sash, from the outside. I did not see Mr. Packard this time. _Cross-examination._--She talked about getting released from her imprisonment. She asked if filing a bill of complaint would lead to a divorce. She said she did not want a divorce; she only wanted protection from Mr. Packard's cruelty. I advised her to not stand it quietly, but get a divorce. Dr. DUNCANSON, sworn, and said: I live here; am a physician; have been a clergyman; have been a practicing physician twenty-one years. Have known Mrs. Packard since this trial commenced. Have known her by general report for three years and upwards. I visited her at Mr. Orr's. I was requested to go there and have a conversation with her and determine if she was sane or insane. Talked three hours with her, on political, religious and scientific subjects, and on mental and moral philosophy. I was educated at and received diplomas from the University of Glasgow, and Anderson University of Glasgow. I went there to see her, and prove or disprove her insanity. I think not only that she is sane, but the most intelligent lady I have talked with in many years. We talked religion very thoroughly. I find her an expert in both departments, Old School and New School theology. There are thousands of persons who believe just as she does. Many of her ideas and doctrines are embraced in Swedenborgianism, and many are found only in the New School theology. The best and most learned men of both Europe and this country, are advocates of these doctrines, in one shape or the other; and some bigots and men with minds of small calibre may call these great minds insane; but that does not make them insane. An insane mind is a diseased mind. These minds are the perfection of intellectual powers, healthy, strong, vigorous, and just the reverse of diseased minds, or insane. Her explanation of woman representing the Holy Ghost, and man representing the male attributes of the Father, and that the Son is the fruit of the Father and the Holy Ghost, is a very ancient theological dogma, and entertained by many of our most eminent men. On every topic I introduced, she was perfectly familiar, and discussed them with an intelligence that at once showed she was possessed of a good education, and a strong and vigorous mind. I did not agree with her in sentiment on many things, but I do not call people insane because they differ from me, nor from a majority, even, of people. Many persons called Swedenborg insane. That is true; but he had the largest brain of any person during the age in which he lived; and no one now dares call him insane. You might with as much propriety call Christ insane, because he taught the people many new and strange things; or Galileo; or Newton; or Luther; or Robert Fulton; or Morse, who electrified the world; or Watts or a thousand others I might name. Morse's best friends for a long time thought him mad; yet there was a magnificent mind, the embodiment of health and vigor. So with Mrs. Packard; there is wanting every indication of insanity that is laid down in the books. I pronounce her a sane woman, and wish we had a nation of such women. This witness was cross-examined at some length, which elicited nothing new, when he retired. The defense now announced to the court that they had closed all the testimony they wished to introduce, and inasmuch as the case had occupied so much time, they would propose to submit it without argument. The prosecution would not consent to this arrangement. The case was argued ably and at length, by Messrs. Loomis and Bonfield for the prosecution, and by Messrs. Orr and Loring on the part of the defense. It would be impossible to give even a statement of the arguments made, and do the attorneys justice, in the space allotted to this report. On the 18th day of January, 1864, at 10 o'clock, P. M., the jury retired for consultation, under the charge of the sheriff. After an absence of seven minutes, they returned into court, and gave the following verdict: STATE OF ILLINOIS, } _ss._ KANKAKEE COUNTY, } We, the undersigned, Jurors in the case of Mrs. Elizabeth P. W. Packard, alleged to be insane, having heard the evidence in the case, are satisfied that said Elizabeth P. W. Packard is SANE. JOHN STILES, _Foreman_. DANIEL G. BEAN. F. G. HUTCHINSON. V. H. YOUNG. G. M. LYONS. THOMAS MUNCEY. H. HIRSHBERG. NELSON JERVAIS. WILLIAM HYER. GEO. H. ANDREWS. J. F. MAFIT. LEMUEL MILK. Cheers rose from every part, of the house; the ladies waved their handkerchiefs, and pressed around Mrs. Packard, and extended her their congratulations. It was sometime before the outburst of applause could be checked. When order was restored, the counsel for Mrs. Packard moved the court, that she be discharged. Thereupon the court ordered the clerk to enter the following order: STATE OF ILLINOIS, } _ss._ KANKAKEE COUNTY, } It is hereby ordered that Mrs. Elizabeth P. W. Packard be relieved from all restraint incompatible with her condition as a sane woman. C. R. STARR, _Judge of the 20th Judicial Circuit of the State of Illinois_ January 18, 1864. Thus ended the trial of this remarkable case. During each day of the proceedings the court-room was crowded to excess by an anxious audience of ladies and gentlemen, who are seldom in our courts. The verdict of the jury was received with applause, and hosts of friends crowded upon Mrs. Packard to congratulate her upon her release. During the past two months, Mr. Packard had locked her up in her own house, fastened the windows outside, and carried the key to the door, and made her a close prisoner. He was maturing a plan to immure her in an Asylum in Massachusetts, and for that purpose was ready to start on the Thursday before the writ was sued out, when his plan was disclosed to Mrs. Packard by a letter he accidentally dropped in her room, written by his sister in Massachusetts, telling him the route he should take, and that a carriage would be ready at the station to put her in and convey her to the Asylum. Vigorous action became necessary, and she communicated this startling intelligence through her window to some ladies who had come to see her, and were refused admission into the house. On Monday morning, and before the defense had rested their case, Mr. Packard left the State, bag and baggage, for parts unknown, having first mortgaged his property for all it is worth to his sister and other parties. We cannot do better than close this report with the following editorial from the Kankakee Gazette, of January 21, 1864: MRS. PACKARD. The case of this lady, which has attracted so much attention and excited so much interest for ten days past, was decided on Monday evening last and resulted, as almost every person thought it must, in a complete vindication of her sanity. The jury retired on Monday evening, after hearing the arguments of the counsel; and after a brief consultation, they brought in a verdict that Mrs. Packard is a _sane_ woman. Thus has resulted an investigation which Mrs. Packard has long and always desired should be had, but which her cruel husband has ever sternly refused her. She has always asked and earnestly pleaded for a jury trial of her case, but her relentless persecutor has ever turned a deaf ear to her entreaties, and flagrantly violated all the dictates of justice and humanity. She has suffered the alienation of friends and relatives; the shock of a kidnapping by her husband and his posse when forcibly removed to the Asylum; has endured three years incarceration in that Asylum--upon the general treatment, in which there is severe comment in the State, and which in her special case was aggravatingly unpleasant and ill-favored; returning to her home she found her husband's saintly blood still congealed, a winter of perpetual frown on his face, and the sad dull monotony of "insane, insane," escaping his lips in all his communications to and concerning her; her young family, the youngest of the four at home being less than four years of age, these children--over whose slumbers she had watched, and whose wailings she had hushed with all a mother's care and tenderness--had been taught to look upon her as insane, and they were not to respect the counsels or heed the voice of a maniac just loosed from the Asylum, doom sealed by official certificates. Soon her aberration of mind led her to seek some of her better clothing carefully kept from her by her husband, which very woman-like act was seized by him as an excuse for confining her in her room, and depriving her of her apparel, and excluding her lady friends. Believing that he was about to again forcibly take her to an asylum, four responsible citizens of that village made affidavit of facts which caused the investigation as to her sanity or insanity. During the whole of the trial she was present, and counseled with her attorneys in the management of the case. Notwithstanding the severe treatment she has received for nearly four years past, the outrages she has suffered, the wrong to her nature she has endured, she deported herself during the trial as one who is not only not insane, but as one possessing intellectual endowments of a high order, and an equipoise and control of mind far above the majority of human kind. Let the sapient Dr. Brown, who gave a certificate of insanity after a short conversation with her, and which certificate was to be used in aid of her incarceration for life--suffer as she has suffered, endure what she has endured, and the world would be deprived of future clinical revealings from his gigantic mind upon the subject of the spleen, and he would, to a still greater extent than in the past, "fail to illuminate" the public as to the virtues and glories of the martyr who is "watching and waiting" in Canada. The heroic motto: "suffer and be strong," is fairly illustrated in her case. While many would have opposed force to his force, displayed frantic emotions of displeasure at such treatment, or sat convulsed and "maddened with the passion of her part," she meekly submitted to the tortures of her bigoted tormentor, trusting and believing in God's Providence the hour of her vindication and her release from thraldom would come. And now the fruit of her suffering and persecution have all the autumn glory of perfection. "One who walked From the throne's splendor to the bloody block, Said: 'This completes my glory' with a smile Which still illuminates men's thoughts of her." Feeling the accusations of his guilty conscience, seeing the meshes of the net with which he had kept her surrounded were broken, and a storm-cloud of indignation about to break over his head in pitiless fury, the intolerant Packard, after encumbering their property with trust-deeds, and despoiling her of her furniture and clothing, left the country. Let him wander! with the mark of infamy upon his brow, through far-off States, where distance and obscurity may diminish till the grave shall cover the wrongs it cannot heal. It is to be hoped Mrs. Packard will make immediate application for a divorce, and thereby relieve herself of a repetition of the wrongs and outrages she has suffered by him who for the past four years has only used the marriage relation to persecute and torment her in a merciless and unfeeling manner. NARRATIVE OF EVENTS--CONTINUED. When this Trial terminated, I returned to my home in Manteno, where five days previous I had bestowed the parting kiss upon my three youngest children, little thinking it would be the last embrace I should be allowed to bestow upon these dear objects of my warmest affections. But alas! so it proved to be. Mr. Packard had fled with them to Massachusetts, leaving me in the court room a childless widow. He could not but see that the tide of popular indignation was concentrating against him, as the revelations of the court ventilated the dreadful facts of this conspiracy, and he "fled his country," a fugitive from justice. He, however, left a letter for me which was handed me before I left the Court-house, wherein he stated that he had moved to Massachusetts, and extended to me an invitation to follow him, with the promise that he would provide me a suitable home. But I did not feel much like trusting either to his humanity or judgment in providing me another home. Indeed, I did not think it safe to follow him, knowing that Massachusetts' laws gave him the absolute custody of my person as well as Illinois' laws. He went to South Deerfield, Massachusetts, and sought shelter for himself and his children in the family of his sister, Mrs. Severance, one of his co-conspirators. Here he found willing ears to credit his tale of abuses he had suffered in this interference of his rights to do as he pleased with his lawful wife--and in representing the trial as a "mock trial," an illegal interference with his rights as head of his own household, and a "mob triumph,"--and in short, he was an innocent victim of a persecution against his legally constituted rights as a husband, to protect his wife in the way his own feelings of bigotry and intolerance should dictate! This was the region of his nativity and former pastorate, which he had left about eleven years previously, with an unblemished external character, and sharing, to an uncommon degree, the entire confidence of the public as a Christian man and a minister. Nothing had occurred, _to their knowledge_, to disturb this confidence in his present integrity as an honest reporter, and the entire community credited his testimony as perfectly reliable, in his entire misrepresentations of the facts in the case, and the character of the trial. His view was the only view the community were allowed to hear, so far as it was in his power to prevent it. The press also lent him its aid, as his organ of communication. He met also his old associates in the ministry, and by his artfully arranged web of lies, and his cunning sophistries, he deluded them also into a belief of his views, so that they, unanimously, gave him their certificate of confidence and fraternal sympathy. Yea, even my own father and brothers became victims also of his sophisms and misrepresentations, so that they honestly believed me to be insane, and that the Westerners had really interfered with Mr. Packard's rights and kind intents towards his wife, in intercepting as they had, his plans to keep her incarcerated for life. Thus this one-sided view of the facts in the case so moulded public sentiment in this conservative part of New England, that he even obtained a certificate from my own dear father, a retired orthodox clergyman in Sunderland, Massachusetts, that, so far as he knew, he had treated his daughter generally with propriety!! This certificate served as a passport to the confidence of Sunderland people in Mr. Packard as a man and a minister, and procured for him a call to become their minister in holy things. He was accordingly hired, as stated supply, and paid fifteen dollars a Sabbath for one year and a half, and was boarded by my father in his family, part of the time, free of charge. The condition in which Mr. Packard left me I will now give in the language of another, by inserting here a quotation from one of the many Chicago papers which published an account of this trial with editorial remarks accompanying it. The following is a part of one of these Editorial Articles, which appeared under the caption:-- "A HEARTLESS CLERGYMAN." _Chicago, March 6, 1864._ "We recently gave an extended account of the melancholy case of Mrs. Packard, of Manteno, Ill., and showed how she was persecuted by her husband, Rev. Theophilus Packard, a bigoted Presbyterian minister of Manteno. Mrs. Packard became liberal in her views, in fact, avowed Universalist sentiments; and as her husband was unable to answer her arguments, he thought he could silence her tongue, by calling her _insane_, and having her incarcerated in the Insane Asylum at Jacksonville, Illinois. He finally succeeded in finding one or two orthodox physicians, as bigoted as himself, ready to aid him in his nefarious work, and she was confined in the asylum, under the charge (?) of Dr. McFarland, who kept her there three years. She at last succeeded in having a jury trial, and was pronounced _sane_. Previous, however, to the termination of the trial, this persecutor of his wife, mortgaged his property, took away his children from the mother, and left her penniless and homeless, without a cent to buy food, or a place where to lay her head! And yet he pretended to believe that she was _insane_! Is this the way to treat an insane wife! Abandon her, turn her out upon the world without a morsel of bread, and no home? Her husband calls her _insane_. Before the case is decided by the jury, he starts for parts unknown. Was there ever such a case of heartlessness? If Mr. Packard _believed_ his wife to be hopelessly _insane_, why did he abandon her? Is this the way to treat a companion afflicted with insanity? If he believed his own story, he should, like a devoted husband, have watched over her with tenderness, his heart full of love should have gone out towards the poor, afflicted woman, and he should have bent over her and soothed her, and spent the last penny he had, for her recovery! But instead of this, he gathers in his funds, "packs up his duds," and leaves his poor, _insane_ wife, as _he_ calls her, in the court room, without food or shelter. He abandons her, leaving her penniless, homeless and childless! "Mrs. Packard is now residing with Mr. Z. Handford, of Manteno, who writes to the Kankakee _Gazette_ as follows: "In the first place, Mrs. Packard is now penniless. After having aided her husband for twenty-one years, by her most indefatigable exertions, to secure for themselves a home, with all its clustering comforts, he, with no cause, except a difference in religious opinions, exiled her from her home, by forcing her into Jacksonville Insane Asylum, where he hoped to immure her for life, or until she would abandon what _he_ calls her 'insane notions.' "But in the overruling providence of a just God, her case has been ventilated, at last, by a jury trial, the account of which is already before the public. "From the time of her banishment into exile, now more than three and a half years, he has not allowed her the control of one dollar of their personal property. And she has had nothing to do with their real estate, within that time, excepting to sign one deed for the transfer of some of their real estate in Mount Pleasant, Iowa, which she did at her husband's earnest solicitations, and his promise to let her have her 'defense,' long enough to copy, which document he had robbed her of three years before, by means of Dr. McFarland as agent. Her signature, _thus obtained_, was acknowledged as a valid act, and the deed was presented to the purchaser as a valid instrument, even after Mr. Packard had just before taken an _oath_ that his wife was an _insane_ woman! "He has robbed her of all her patrimony, including not only her furniture, but her valuable clothing also, and a note of six hundred dollars on interest, which he gave her seven years before, as an equivalent for this amount of patrimony which her father, Rev. Samuel Ware, of Sunderland, Massachusetts, sent Mrs. Packard for her special benefit, and to be used for her and her children as her own judgment should dictate. He has taken her furniture and clothing, or the avails of them, with him to Massachusetts, without allowing her a single article of furniture for her own individual comfort and use. Thus he has left her without a single penny of their common property to procure for herself the necessaries of life. "He has left her homeless. Before the court closed, Mr. Packard left this scene of revelations, and mortgaged and rented their home in Manteno, and dispossessed it by night of its furniture, so that when the court closed, Mrs. Packard had no sort of home to return to, the new renter having claimed possession of her home, and claiming a legal right to all its privileges, excluding her from its use entirely as a home, without leaving her the least legal claim to any of the avails of the rent or sales for the supply of her present necessities. "Again, she is childless. Her cruel husband, not satisfied with robbing his wife of all her rightful property, has actually _kidnapped_ all her dear children who lived at home, taking them with him, clandestinely, to Massachusetts, leaving her a 'childless widow,' entirely dependent for her living, either upon her own exertions, or the charities of the public. We will not attempt to describe the desolation of her maternal heart, when she returned to her deserted home, to find it despoiled of all her dearest earthly treasures; with no sweet cherub, with its smiling, joyous face to extend to her the happy, welcome kiss of a mother's return. "But one short week previous, Mrs. Packard had bestowed the parting kiss upon her three youngest children, little dreaming it would be the last embrace the mother would ever be allowed to bestow upon her dear offspring, in their own dear home. But now, alas! where is her only daughter, Elizabeth, of thirteen years, and her George Hastings, of ten years, and her darling baby, Arthur Dwight, of five years? Gone! gone! never to return, while the mandate of their father's iron will usurps supreme control of this household! "Yes, the mother's home and heart are both desolate, for her heart-treasures--her dear children--are no more to be found. At length, rumor reaches her that her babe, Arthur, is at their brother Dole's. The anxious mother hastens to seek for it there. But all in vain. The family, faithful to their brother's wishes, keep the babe carefully hid from the mother, so that she cannot get even one glimpse of her sweet, darling boy. Her cruel husband, fearing her attempts to secure the child might prove successful, has sent for it to be brought to him in Massachusetts, where he now is fairly out of the mother's reach." Z. HANFORD. I made various attempts to recover my furniture, which I found was stored at Deacon Doles' house, a brother-in-law of Mr. Packard's, under the pretense, that he had bought it, although he could never show one paper as proof of property transferred. I took counsel of the Judge and lawyers at Kankakee, to see if I could in any way recover my stolen furniture, which I had bought with my own patrimony. "Can I replevy it as stolen property?" said I. "No," said my advisers, "you cannot replevy anything, for you are a married woman, and a married woman has no legal existence, unless she holds property independent of her husband. As this is not your case, you are nothing and nobody in law. Your husband has a legal right to all your common property--you have not even a right to the hat on your head!" "Why?" said I, "I have bought and paid for it with my own money." "That is of no consequence--you can hold nothing, as you are _nothing and nobody_ in law! You have a moral right to your own things, and your own children, but no legal right at all; therefore you, a married woman, cannot replevy, although any one else could under like circumstances." "Is this so? Has a married woman no identity in Statute Book of Illinois?" "It is so. Her interests are all lost in those of her husband, and he has the absolute control of her home, her property, her children, and her personal liberty." Yes, all this is but too true, as my own sad experience fully demonstrates. Now I can realize the sad truths so often iterated, reiterated to me by my husband, namely: "You have no _right_ to your home, I have let you live with me twenty-one years in my home as a favor to you. You have no _right_ to your children. I let you train them, as far as I think it is proper to trust your judgment--this privilege of training and educating your own children is a favor bestowed upon you by me, which I can withhold or grant at my own option. You have no _right_ to your money patrimony after you intrusted it to my care, and I gave you a note for it on interest which I can either pay you or not at my own option. You have no _right_ to your personal liberty if I feel disposed to christen your opinions insane opinions, for I can then treat you as an insane person or not, just at my own option." Yes, Mr. Packard has only treated me as he said the laws of Illinois allowed him to do, and how can he be blamed then? Did not "wise men" make the laws, as he often used to assert they did? And can one be prosecuted for doing a legal act? Nay--verily--no law can reach him; even his kidnapping me as he did is legalized in Illinois Statute Book, as the following article which was published in several Boston papers in the winter of 1865, demonstrates, namely: "LEGAL KIDNAPPING," OR PROVISION FOR A SANE PERSON'S IMPRISONMENT. "From the 'Disclosures' of Mrs. Packard's book, it appears a self-evident fact that one State of our Union has an express provision for the imprisonment of married women who are not insane. And this process of legal kidnapping is most strikingly illustrated in the facts developed in Mrs. Packard's own experience, as delineated in her book entitled 'The Great Drama.' "The following is a copy of the Law, as it now stands on the Illinois Statute Book:-- "AMENDATORY ACT." "Session Laws 15, 1851. Page 96." "SEC. 10. Married women and infants who, in the judgment of the Medical Superintendent, [meaning the Superintendent of the 'Illinois State Hospital' for the insane] are evidently insane or distracted, may be entered or detained in the Hospital on the request of the husband, or the woman or guardian of the infants, _without_ the evidence of insanity required in other cases." "Hon. S. S. Jones of St. Charles, Illinois, thus remarks upon this Act:-- "Thus we see a corrupt husband, with money enough to corrupt a Superintendent, can get rid of a wife as effectually as was ever done in a more barbarous age. The Superintendent may be corrupted either with money or influence, that he thinks will give him position, place, or emoluments. Is not this a pretty statute to be incorporated into our laws no more than thirteen years ago? Why not confine the husband at the instance of the wife, as well as the wife at the instance of the husband? The wife evidently had no voice in making the law. "Who, being a man, and seeing this section in the Statute Book of Illinois, under the general head of 'Charities,' does not blush and hang his head for very shame at legislative perversion of so holy a term? I have no doubt, if the truth of the matter were known, this act was passed at the special instance of the Superintendent. A desire for power. I do not know why it has not been noted by me and others before." "And we would also venture to inquire, what is the married woman's protection under such a Statute law? Is she not allowed counter testimony from a physician of her own choice, or can she not demand a trial of some kind, to show whether the charge of insanity brought against her is true or false? Nay, verily. The Statute expressly states that the judgment of the medical Superintendent, to whom the husband's request is made, is _all_ that is required for him to incarcerate his wife for any indefinite period of time. Neither she, her children, nor her relatives have any voice at all in the matter. Her imprisonment may be life-long, for anything she or her friends can do for her to prevent it. If the husband has money or influence enough to corrupt the officials, he can carry out his single wishes concerning his wife's life-destiny. "Are not the 'Divorce Laws' of Illinois made a necessity, to meet the demands of the wife, as her only refuge from this exposure to a 'false imprisonment' for life in an Insane Asylum? "We hope our readers will be able to read Mrs. Packard's book for themselves; especially her 'Self-defence from the charge of Insanity,' wherein the barbarities of this statute are made to appear in their true light, as being merely a provision for 'Legal Kidnapping.'" BOSTON, Feb. 24, 1865. Satisfied as I was that there was no legal redress for me in the laws, and no hope in appealing to Mr. Packard's mercy or manliness, I determined to do what I could to obtain a self-reliant position, by securing if possible the protection of greenbacks, confident that this kind of protection is better than none at all. I concluded, therefore, to publish the first installment of "The Great Drama," an allegorical book I wrote while in the Asylum, consisting of twelve parts. But how could this be done in my penniless condition? was the great question to be practically settled. I accordingly borrowed ten dollars of Mr. Z. Hanford, of Manteno, a noble, kind hearted man, who offered me a home at his house after the trial, and went to Chicago to consult the printers in reference to the expense of printing one thousand copies of this book, and get it stereotyped. I found it would cost me five hundred dollars. I then procured a few thousand tickets on which was printed--"The bearer is entitled to the first volume of Mrs. Packard's book, entitled the Great Drama. None are genuine without my signature. Mrs. E. P. W. Packard." And commenced canvassing for my unborn book, by selling these tickets for fifty cents each, assuring the purchaser I would redeem the ticket in three month's time, by giving them a book worth fifty cents. When I had sold about eight or nine hundred tickets, I went to Chicago to set my printers and stereotypers, engravers and binders, at work on my book. But I now met with a new and unlooked for difficulty, in the sudden inflation of prices in labor and material. My book could not now be printed for less than seven hundred dollars; so that my first edition would not pay for itself into two hundred dollars. As the case now was, instead of paying for my book by selling one thousand tickets, I must sell fourteen hundred, besides superintending the various workmen on the different departments of my book. Nothing daunted by this reverse, instead of raising the price of my tickets to seventy-five cents to meet this unfortunate turn in my finances, I found I must fall back upon the only sure guarantee of success, namely: patient perseverance. By the practical use of this great backbone of success, perseverance, I did finally succeed in printing my book, and paying the whole seven hundred dollars for it in three months' time, by selling four hundred tickets in advance on another edition. I sold and printed, and then printed and sold, and so on, until I have printed and sold in all, twelve thousand books in fifteen months' time. Included in this twelve thousand are several editions of smaller pamphlets, varying in price from five to twenty-five cents each. INTERVIEW WITH MAYOR SHERMAN. At this stage of my Narrative it may not be inappropriate to narrate my interview with Mayor Sherman, of Chicago, since it not only discloses one of the dangers and the difficulties I had to encounter, in prosecuting my enterprise, but also serves as another exemplification of that marital power which is legally guaranteed to the husband, leaving the wife utterly helpless, and legally defenceless. I called upon him at his office in the court house, and was received with respectful, manly courtesy. After introducing myself as the Mrs. Packard whose case had recently acquired so much notoriety through the Chicago press, and after briefly recapitulating the main facts of the persecution, I said to him: "Now, Mr. Sherman, as the Mayor of this city, I appeal to you for protection, while printing my book in your city. Will you protect me here?" "Why, Mrs. Packard, what protection do you need? What dangers do you apprehend?" "Sir, I am a married woman, and my husband is my persecutor, therefore I have no legal protection. The husband is, you probably know, the wife's only protector in the law, therefore, what I want now, Sir, is protection against my protector!" "Is he in this city?" "No, Sir; but his agents are, and he can delegate his power to them, and authorize them what to do." "What do you fear he will do?" "I fear he may intercept the publication of my book; for you probably know, Sir, he can come either himself, or by proxy, and, with his Sheriff, can demand my manuscript of my printer, and the printer, nor you, Sir, have no legal power to defend it. He can demand it, and burn it, and I am helpless in legal self-defense. For, Sir, my identity was legally lost in his, when I married him, leaving me nothing and nobody in law; and besides, all I have is his in law, and of course no one can prosecute him for taking his own things--my manuscript is his, and entirely at his disposal. I have no right in law even to my own thoughts, either spoken or written--he has even claimed the right to superintend my written thoughts as well as post office rights. I can not claim these rights--they are mine only as he grants me them as his gifts to me." "What does your printer say about it?" "He says if the Sheriff comes to him for the book he shall tell him he must get the book where he can find it; _I_ shall not find it for him. I then said to my printer, supposing he should come with money, and offer to buy the manuscript, what then?" "I say, it will take more money than there is in Chicago to buy that manuscript of us," replied my printer. "I think that sounds like protection, Mrs. Packard. I think you have nothing to fear." "No, Mr. Sherman, I have nothing to fear from the manliness of my printer, for this is my sole and only protection--but as one man to whom I trusted even myself, has proved a traitor to his manliness, is there not a possibility another may. I should not object to a double guard, since the single guard of manliness has not even protected me from imprisonment." "Well, Mrs. Packard, you shall have my protection; and I can also assure you the protection of my counsel, also. If you get into trouble, apply to us, and we will give you all the help the laws will allow." "I beg you to consider, Sir; the laws do not allow you to interfere in such a matter. Are you authorized to stop a man from doing a _legal_ act?" "No, Mrs. Packard, I am not. I see you are without any legal protection. Still I think you are safe in Chicago." "I hope it may so prove, Sir. But one thing more I wish your advice about; how can I keep the money I get for my book from Mr. Packard, the legal owner of it?" "Keep it about your person, so he can't get it." "But, Sir; Mr. Packard has a right to my person in law, and can take it anywhere, and put it where he pleases; and if he can get my person, he can take what is on it." "That's so--you are in a bad case, truly--I must say, I never before knew that any one under our government was so utterly defenceless as you are. Your case ought to be known. Every soldier in our army ought to have one of your books, so as to have our laws changed." Soldiers of our army! receive this tacit compliment from Mayor Sherman. _You_ are henceforth to hold the reins of the American Government. And it is my candid opinion, they could not be in better or safer hands. And in your hands would I most confidently trust my sacred cause--the cause of Married Woman; for, so far as my observation extends, no class of American citizens are more manly, than our soldiers. I am inclined to cherish the idea, that gallantry and patriotism are identified; at least, I find they are almost always associated together in the same manly heart. When I had sold about half of my twelve thousand books, I resolved to visit my relatives in Massachusetts, who had not seen me for about twelve years. I felt assured that my dear father, and brothers, and my kind step-mother, were all looking at the facts of my persecution from a wrong stand-point; and I determined to risk my exposure to Mr. Packard's persecuting power again, so far as to let my relatives see me once for themselves; hoping thus the scales might drop from their eyes, so far at least as to protect me from another kidnapping from Mr. Packard. I arrived first at my brother Austin Ware's house in South Deerfield, who lives about two miles from Mr. Severance, where were my three youngest children, and where Mr. Packard spent one day of each week. I spent two nights with him and his new wife, who both gave me a very kind and patient hearing; and the result was, their eyes were opened to see their error in believing me to be an insane person, and expressed their decided condemnation of the course Mr. Packard had pursued towards me. Brother became at once my gallant and manly protector, and the defender of my rights. "Sister," said he, "you have a right to see your children, and you shall see them. I will send for them to-day." He accordingly sent a team for them twice, but was twice refused by Mr. Packard, who had heard of my arrival. Still, he assured me I should see them in due time. He carried me over to Sunderland, about four miles distant, to my father's house, promising me I should meet my dear children there; feeling confident that my father's request joined with his own, would induce Mr. Packard to let me see once more my own dear offspring. As he expected, my father at once espoused my cause, and assured me I should see my children; "for," added he, "Mr. Packard knows it will not do for him to refuse me." He then directed brother to go directly for them himself, and say to Mr. Packard: "Elizabeth's father requests him to let the children have an interview with their mother at his house." But, instead of the children, came a letter from brother, saying, that Mr. Packard has refused, in the most decided terms, to let sister see her own children; or, to use his own language, he said, "I came from Illinois to Massachusetts to protect the children from their mother, and I shall do it, in spite of you, or father Ware, or any one else!" Brother adds, "the mystery of this dark case is now solved, in my mind, completely. Mr. Packard is a monomaniac on this subject; there is no more reason in his treatment of sister, than in a brute." These facts of his refusal to let me see my children, were soon in circulation in the two adjacent villages of Sunderland and South Deerfield, and a strongly indignant feeling was manifested against Mr. Packard's defiant and unreasonable position; and he, becoming aware of the danger to his interests which a conflict with this tide of public sentiment might occasion, seemed forced, by this pressure of public opinion, to succumb; for, on the following Monday morning, (this was on Saturday, P. M.,) he brought all of my three children to my father's house, with himself and Mrs. Severance, as their body-guard, and with both as my witnesses, I was allowed to talk with them an hour or two. He refused me an interview with them alone in my room. I remained at my father's house a few days only, knowing that even in Massachusetts the laws did not protect me from another similar outrage, if Mr. Packard could procure the certificate of two physicians that I was insane; for, with these alone, without any chance at self-defense, he could force me into some of the Private Asylums here, as he did into a State Asylum in Illinois. I knew that, as I was Mr. Packard's wife, neither my brother nor father could be my legal protectors in such an event, as they could command no influence in my defense, except that of public sentiment or mob-law. I therefore felt forced to leave my father's house in self-defence, to seek some protection of the Legislature of Massachusetts, by petitioning them for a change in their laws on the mode of commitment into Insane Asylums. As a preparatory step, I endeavored to get up an agitation on the subject, by printing and selling about six thousand books relative to the subject; and then, trusting to this enlightened public sentiment to back up the movement, I petitioned Massachusetts Legislature to make the needed change in the laws. Hon. S. E. Sewall, of Boston, drafted the Petition, and I circulated it, and obtained between one and two hundred names of men of the first standing and influence in Boston, such as the Aldermen, the Common Council, the High Sheriff, and several other City Officers; and besides, Judges, Lawyers, Editors, Bank Directors, Physicians, &c. Mr. Sewall presented this petition to the Legislature, and they referred it to a committee, and this committee had seven special meetings on the subject. I was invited to meet with them each time, and did so, as were also Mrs. Phelps and Mrs. Denny, two ladies of Boston who had suffered a term of false imprisonment in a private institution at Sommersville, without any previous trial. Hon. S. E. Sewall and Mr. Wendell Phillips both made a plea in its behalf before this committee, and the gallantry and manliness of this committee allowed me a hearing of several hour's time in all, besides allowing me to present the two following Bills, which they afterwards requested a copy of in writing. The three Superintendents, Dr. Walker, Dr. Jarvis, and Dr. Tyler, represented the opposition. And my reply to Dr. Walker constituted the preamble to my bills. MRS. PACKARD'S BILLS. PREAMBLE. _Gentlemen of the Committee_: I feel it my duty to say one word in defence of the Petitioners, in reply to Dr. Walker's statement, that, "in his opinion, nineteen twentieths of the petitioners did not know nor care what they petitioned for, and that they signed it out of compliment to the lady." I differ from Dr. Walker in opinion on this point, for this reason. I obtained these names by my own individual appeals, except from most of the members of the "Common Council," who signed it during an evening session, by its being passed around for their names. I witnessed their signing, and saw them read it, carefully, before signing it. And I _think_ they signed it intelligently, and from a desire for safer legislation. The others I _know_ signed intelligently, and for this reason. And I could easily have got one thousand more names, had it been necessary; for, in selling my books, I have conversed with many thousand men on this subject, and among them all, I have only found one man who defends the present mode of commitment, by leaving it all to the physicians. I spent a day in the Custom House, and a day and a half in the Navy Yard, and these men, like all others, defend our movement. I have sold one hundred and thirty-nine books in the Navy Yard within the last day and a half, by conversing personally with gentlemen in their counting-rooms on this subject, and they are carefully watching your decision on this question. Now, from this stand-point of extensive observation, added to my own personal experience, I feel fully confident these two Bills are needed to meet the public demand at this crisis. BILL NO. 1. No person shall be regarded or treated as an Insane person, or a Monomaniac, simply for the _expression of opinions_, no matter how absurd these opinions may appear to others. REASONS. 1st. This Law is needed for the personal safety of Reformers. We are living in a Progressive Age. Everything is in a state of transmutation, and, as our laws now are, the Reformer, the Pioneer, the Originator of any new idea is liable to be treated as a Monomaniac, with _imprisonment_. 2d. It is a _Crime_ against human progress to allow Reformers to be treated as Monomaniacs; for, who will dare to be true to the inspirations of the divinity within them, if the Pioneers of truth are thus liable to lose their personal liberty for life by so doing? 3d. It is _Treason_ against the principles of our Government to treat opinions as Insanity, and to imprison for it, as our present laws allow. 4th. There always are those in every age who are opposed to every thing _new_, and if allowed, will persecute Reformers with the stigma of Insanity. This has been the fate of all Reformers, from the days of Christ--the Great Reformer--until the present age. 5th. Our Government, of all others, ought especially to guard, by legislation, the vital principle on which it is based, namely: _individuality_, which guarantees an individual right of opinion to all persons. Therefore, gentlemen, _protect your thinkers!_ by a law, against the charge of Monomania, and posterity shall bless our government, as a model government, and Massachusetts as the Pioneer State, in thus protecting individuality as the vital principle on which the highest development of humanity rests. BILL NO. 2. No person shall be imprisoned, and treated as an insane person, except for _irregularities of conduct_, such as indicate that the individual is so lost to reason, as to render him an unaccountable moral agent. REASONS. Multitudes are now imprisoned, without the least evidence that reason is dethroned, as indicated by this test. And I am a representative of this class of prisoners; for, when Dr. McFarland was driven to give his reasons for regarding me as insane, on _this_ basis, the only reason which he could name, after closely inspecting my conduct for three years, was, that I once "_fell down stairs_!" I do insist upon it, gentlemen, that no person should be imprisoned without a _just cause_; for personal liberty is the most blessed boon of our existence and ought therefore to be reasonably guarded as an inalienable right. But it is _not_ reasonably protected under our present legislation, while it allows the simple _opinion_ of two doctors to imprison a person for life, without one _proof_ in the _conduct_ of the accused, that he is an unaccountable moral agent. We do not hang a person on the simple _opinion_ that he is a murderer, but _proof_ is required from the accused's _own actions_, that he is guilty of the charge which forfeits his life. So the charge which forfeits our personal liberty ought to be _proved_ from the individual's own conduct, before imprisonment. So long as insanity is treated as a _crime_, instead of a _misfortune_, as our present system _practically_ does so treat it, the protection of our individual liberty imperatively demands such an enactment. Many contend that _every_ person is insane on some point. On this ground, _all_ persons are liable to be legally imprisoned, under our present system; for intelligent physicians are everywhere to be found, who will not scruple to give a certificate that an individual is a Monomaniac on _that_ point where he differs from _him_ in opinion! This Monomania in many instances is not Insanity, but individuality, which is the highest _natural_ development of a human being. Gentlemen, I know, and have felt, the horrors--the untold _soul_ agonies--attendant on such a persecution. Therefore, as Philanthropists, I beg of you to guard your own liberties, and those of your countrymen, by recommending the adoption of these two Bills as an imperative necessity. The above Bills were presented to the Committee on the Commitment of the Insane, in Boston State house, March 29, 1865, by MRS. E. P. W. PACKARD. The result was, the petition triumphed, by so changing the mode of commitment, that, instead of the husband being allowed to enter his wife at his simple request, added to the certificate of two physicians, he must now get ten of her nearest relatives to join with him in this request; and the person committed, instead of not being allowed to communicate by writing to any one outside of the Institution, except under the censorship of the Superintendent, can now send a letter to each of these ten relatives, and to any other two persons whom the person committed shall designate. This the Superintendent is required to do within two days from the time of commitment. This Law is found in Chapter 268, Section 2, of the General Laws of Massachusetts. I regard my personal liberty in Massachusetts now as not absolutely in the power of my husband; as my family friends must now co-operate in order to make my commitment legal. And since my family relatives are now fully satisfied of my sanity, after having seen me for themselves, I feel now comparatively safe, while in Massachusetts. I therefore returned to my father's house in Sunderland, and finding both of my dear parents feeble, and in need of some one to care for them, and finding myself in need of a season of rest and quiet, I accepted their kind invitation to make their house my home for the present. At this point my father indicated his true position in relation to my interests, by his self-moved efforts in my behalf, in writing and sending the following letter to Mr. Packard.[1] [1] See Appendix, p. 138. COPY OF FATHER WARE'S LETTER TO MR. PACKARD. "_Sunderland, Sept. 2, 1865._ "REV. SIR: I think the time has fully come for you to give up to Elizabeth her clothes. Whatever reason might have existed to justify you in retaining them, has, in process of time, entirely vanished. There is not a shadow of excuse for retaining them. It is my presumption there is not an individual in this town who would justify you in retaining them a single day. Elizabeth is about to make a home at my house, and I must be her protector. She is very destitute of clothing, and greatly needs all those articles which are hers. I hope to hear from you soon, before I shall be constrained to take another step. Yours, Respectfully, "REV. T. PACKARD. SAMUEL WARE." The result of this letter was, that in about twenty-four hours after the letter was delivered, Mr. Packard brought the greater part of my wardrobe and delivered it into the hands of my father. In a few weeks after this event, Mr. Packard's place in the pulpit in Sunderland was filled by a candidate for settlement, and he left the place. The reasons why he thus left his ministerial charge in this place, cannot perhaps be more summarily given than by transcribing the following letter which father got me to write for him, in answer to Rev. Dr. Pomeroy's letter, inquiring of my father _why_ Mr. Packard had left Sunderland. LETTER TO REV. DR. POMEROY. _Sunderland, Oct. 28, 1865._ DR. POMEROY, DEAR SIR: I am sorry to say that my dear father feels too weak to reply to your kind and affectionate letter of the twenty-third instant, and therefore I cheerfully consent to reply to it myself. As to the subject of your letter, it is as you intimated. We have every reason to believe that father's defence of me, has been the indirect cause of Mr. Packard's leaving Sunderland; although we knew nothing of the matter until he left, and a candidate filled his place. Neither father, mother, nor I, have used any direct influence to undermine the confidence of this people in Mr. Packard. But where this simple fact, that I have been imprisoned three years, is known, to have become a demonstrated truth, by the decision of a jury, after a thorough legal investigation of five day's trial, it is found to be rather of an unfortunate truth for the public sentiment of the present age to grapple with. And Mr. Packard and his persecuting party may yet find I uttered no fictitious sentiment, when I remarked to Dr. McFarland in the Asylum, that I shall yet _live down_ this slander of Insanity, and also live down my persecutors. And Mr. Packard is affording me every facility for so doing, by his continuing strenuously to insist upon it, that I am, now, just as insane as when he incarcerated me in Jacksonville Insane Asylum. And he still insists upon it, that an Asylum Prison is the only suitable place for me to spend the residue of my earth-life in. But, fortunately for me, my friends judge differently upon seeing me for themselves. Especially fortunate is it for me, that my own dear father feels confident that his house is a more suitable home for me, notwithstanding the assertion of Mrs. Dickinson, (the widow with whom Mr. Packard boards,) that, "it is such a pity that Mrs. Packard should come to Sunderland, where Mr. Packard preaches!" Mr. Johnson replied in answer to this remark, that he thought Mrs. Packard had a right to come to her father's house for protection, and also that her father had an equal right to extend protection to his only daughter, when thrown adrift and pennyless upon the cold world without a place to shelter her defenceless head. Mr. Packard has withdrawn all intercourse with us all since he was called upon by father to return my wardrobe to me. Would that Mr. Packard's eyes might be opened to see what he is doing, and repent, so that I might be allowed to extend to him the forgiveness my heart longs to bestow, upon this gospel condition. Thankful for all the kindness and sympathy you have bestowed upon my father and mother, as well as myself, I subscribe myself your true friend, E. P. W. PACKARD. P. S. Father and mother both approve of the above, which I have written at father's urgent request. E. P. W. P. Fidelity to the truth requires me to add one more melancholy fact, in order to make this narrative of events complete, and that is, that Mr. Packard has made merchandise of this stigma of Insanity he has branded me with, and used it as a lucrative source of gain to himself, in the following manner. He has made most pathetic appeals to the sympathies of the public for their charities to be bestowed upon him, on the plea of his great misfortune in having an insane wife to support--one who was incapable of taking care of herself or her six children--and on this false premise he has based a most pathetic argument and appeal to their sympathies for pecuniary help, in the form of boxes of clothing for himself and his destitute and defenceless children. These appeals have been most generously responded to from the American Home Missionary Society. So that when I returned to my home from the Asylum, I counted twelve boxes of such clothing, some of which were very large, containing the spoils he had thus purloined from this benevolent society, by entirely false representations. My family were not destitute. But on the contrary, were abundantly supplied with a supernumerary amount of such missionary gifts, which had been lavished upon us, at his request, before I was imprisoned. I had often said to him, that I and my children had already more than a supply for our wants until they were grown up. Now, what could he do with twelve more such boxes? My son, Isaac, now in Chicago, and twenty-one years of age, told me he had counted fifty new vests in one pile, and he had as many pants and coats, and overcoats, and almost every thing else, of men's wearing apparel, in like ratio. He said I had a pile of dress patterns accumulated from these boxes, to one yard in depth in one solid pile. And this was only one sample of all kinds of ladies' apparel which he had thus accumulated, by his cunningly devised begging system. Still, to this very date, he is pleading want and destitution as a basis for more charities of like kind. He has even so moved the benevolent sympathies of the widow Dickinson with whom he boarded, as to make her feel that he was an honest claimant upon their charities in this line, on the ground of poverty and destitution. She accordingly started a subscription to procure him a suit of clothes, on the ground of his extreme destitution, and finally succeeded in begging a subscription of one hundred and thirteen dollars for his benefit, and presented it to him as a token of sympathy and regard. Another fact, he has put his property out of his hands, so that he can say he has nothing. And should I sue him for my maintainance, I could get nothing. His rich brother-in-law, George Hastings, supports the three youngest children, mostly, thus leaving scarcely no claimants upon his own purse, except his own personal wants. His wife and six children he has so disposed of, as to be almost entirely independent of him of any support. And it is my honest opinion, that had Sunderland people known of these facts in his financial matters, they would not have presented him with one hundred and thirteen dollars, as a token of their sympathy and esteem. Still, looking at the subject from their stand-point, I have no doubt they acted conscientiously in this matter. I have never deemed it my duty to enlighten them on this subject, except as the truth is sought for from me, in a few individual isolated cases. I do not mingle with the people scarcely at all, and have sold none of my books among them. Self-defence does not require me to seek the protection of enlightened public sentiment now that the laws protect my personal liberty, while in Massachusetts. But fidelity to the cause of humanity, especially the cause of "Married Woman," requires me to make public the facts of this notorious persecution, in order to have her true legal position known and fully apprehended. And since my case is a practical illustration of what the law is on this subject--showing how entirely destitute she is of any legal protection, except what the will and wishes of her husband secures to her--and also demonstrates the fact, that the common-law, everywhere, in relation to married woman, not only gravitates towards an absolute despotism, but even protects and sustains and defends a despotism of the most arbitrary and absolute kind. Therefore, in order to have her social position changed legally, the need of this change must first be seen and appreciated by the common people--the law-makers of this Republic. And this need or necessity for a revolution on this subject can be made to appear in no more direct manner, than by a practical case such as my own furnishes. As the need of a revolution of the law in relation to negro servitude was made to appear, by the practical exhibition of the Slave Code in "Uncle Tom's" experience, showing that all slaves were _liable_ to suffer to the extent he did; so my experience, although like "Uncle Tom's," an extreme case, shows how all married women are _liable_ to suffer to the same extent that I have. Now justice to humanity claims that such liabilities should not exist in any Christian government. The laws should be so changed that such another outrage could not possibly take place under the sanction of the laws of a Christian government. As Uncle Tom's case aroused the indignation of the people against the slave code, so my case, so far as it is known, arouses this same feeling of indignation against those laws which protect married servitude. Married woman needs legal emancipation from married servitude, as much as the slave needed legal emancipation from his servitude. Again, all slaves did not suffer under negro slavery, neither do all married women suffer from this legalized servitude. Still, the principle of slavery is wrong, and the principle of emancipation is right, and the laws ought so to regard it. And this married servitude exposes the wife to as great suffering as negro servitude did. It is my candid opinion, that no Southern slave ever suffered more spiritual agony than I have suffered; as I am more developed in my moral and spiritual nature than they are, therefore more capable of suffering. I think no slave mother ever endured more keen anguish by being deprived of her own offspring than I have in being legally separated from mine. God grant that married woman's emancipation may quickly follow in the wake of negro emancipation! MISCELLANEOUS QUESTIONS ANSWERED. In canvassing for my books various important questions have been propounded to me, which the preceding Narrative of Events does not fully answer. FIRST QUESTION. "Why, Mrs. Packard, do you not get a divorce?" Because, in the first place, I do not want to be a divorced woman; but, on the contrary, I wish to be a married woman, and have my husband for my protector; for I do not like this being divorced from my own home. I want a home to live in, and I prefer the one I have labored twenty one years myself to procure, and furnished to my own taste and mind. Neither do I like this being divorced from my own children. I want to live with my dear children, whom I have borne and nursed, reared and educated, almost entirely by my own unwearied indefatigable exertions; and I love them, with all the fondness of a mother's undying love, and no place is home to me in this wide world without them. And again, I have done nothing to _deserve_ this exclusion from the rights and privileges of my own dear home; but on the contrary, my untiring fidelity to the best interests of my family for twenty-one years of healthful, constant service, having never been sick during this time so as to require five dollars doctor's bill to be paid for me or my six children, and having done all the housework, sewing, nursing, and so forth, of my entire family for twenty-one years, with no hired girl help, except for only nine months, during all this long period of constant toil and labor. I say, this self-sacrifizing devotion to the best interests of my family and home, deserve and claim a right to be protected in it, at least, so long as my good conduct continues, instead of being divorced from it, against my own will or consent. In short, what I want is, _protection in my home_, instead of a divorce from it. I do not wish to drive Mr. Packard from his own home, and exclude him from all its rights and privileges--neither do I want he should treat me in this manner, especially so long as he himself claims that I have _always_ been a most kind, patient, devoted wife and mother. He even claims as his justification of his course, that I am so _good_ a woman, and he _loves_ me so well, that he wants to save me from fatal errors! It is my opinions--my religious opinions--and those alone, he makes an occasion for treating me as he has. He frankly owned to me, that he was putting me into an Asylum so that my reputation for being an insane person might destroy the influence of my religious opinions; and I see in one letter which he wrote to my father, he mentions this as the chief evidence of my insanity. He writes: "Her many excellences and past services I highly appreciate; but she says she has widely departed from, or progressed beyond, her former religious views and sentiments--and I think it is too true!!" Here is all the insanity he claims, or has attempted to prove. Now comes the question: Is this a crime for which I ought to be divorced from all the comforts and privileges of my own dear home? To do this,--that is, to get a divorce--would it not be becoming an accomplice in crime, by doing the very deed which he is so desirous of having done, namely: to remove me from my family, for fear of the contaminating influence of my new views? Has a married woman no rights at all? Can she not even think her own thoughts, and speak her own words, unless her thoughts and expressions harmonize with those of her husband? I think it is high time the merits of this question should be practically tested, on a proper basis, the basis of truth--of facts. And the fact, that I have been not only practically divorced from my own home and children, but also incarcerated for three years in a prison, simply for my religious belief, by the arbitrary will of my husband, ought to raise the question, as to what are the married woman's rights, and what is her protection? And it is to this practical issue I have ever striven to force this question. And this issue I felt might be reached more directly and promptly by the public mind, by laying the necessities of the case before the community, and by a direct appeal to them for personal protection--instead of getting a divorce for my protection. I know that by so doing, I have run a great risk of losing my liberty again. Still, I felt that the great cause of married woman's rights might be promoted by this agitation; and so far as my own feelings were concerned, I felt willing to suffer even another martyrdom in this cause, if so be, my sisters in the bonds of marital power might be benefited thereby. I want and seek protection, _as a married woman_--not divorce, in order to escape the abuses of marital power--that is, I want protection from the abuse of marital power, not a divorce from it. I can live in my home with my husband, if he will only let me do so; but he will not suffer it, unless I recant my religious belief. Cannot religious bigotry under such manifestations, receive _some_ check under our government, which is professedly based on the very principle of religious tolerance to all? Cannot there be laws enacted by which a married woman can stand on the same platform as a married man--that is, have an equal right, at least, to the protection of her inalienable rights? And is not this our petition for protection founded in justice and humanity? Is it just to leave the weakest and most defenceless of these two parties wholly without the shelter of law to shield her, while the strongest and most independent has all the aid of the legal arm to strengthen his own? Nay, verily, it is not right or manly for our man government thus to usurp the whole legal power of self-protection and defence, and leave confiding, trusting woman wholly at the mercy of this gigantic power. For perverted men will use this absolute power to abuse the defenceless, rather than protect them; and abuse of power inevitably leads to the contempt of its victim. A man who can trample on all the inalienable rights of his wife, will, by so doing, come to despise her as an inevitable consequence of wrong doing. Woman, too, is a more spiritual being than a man, and is therefore a more sensitive being, and a more patient sufferer than a man; therefore she, more than any other being, needs protection, and she should find it in that government she has sacrificed so much to uphold and sustain. Again, I do not believe in the divorce principle. I say it is a "Secession" principle. It undermines the very vital principle of our Union, and saps the very foundation of our social and civil obligations. For example. Suppose the small, weak and comparatively feeble States in our Union were not protected by the Government in any of their State rights, while the large, strong, and powerful ones had their State rights fully guaranteed and secured to them. Would not this state of the Union endanger the rights of the defenceless ones? and endanger the Union also? Could these defenceless States resort to any other means of self-defence from the usurpation of the powerful States than that of secession? But secession is death to the Union--death to the principles of love and harmony which ought to bind the parts in one sacred whole. Now, I claim that the Marriage Union rests on just this principle, as our laws now stand. The woman has no alternative of resort from any kind of abuse from her partner, but divorce, or secession from the Marriage Union. Now the weak States have rights as well as the strong ones, and it is the rights of the weak, which the government are especially bound to respect and defend, to prevent usurpation and its legitimate issue, secession from the Union. What we want of our government is to prevent this usurpation, by protecting us equally with our partners, so that we shall not need a divorce at all. By equality of rights, I do not mean that woman's rights and man's rights are one and the same. By no means; we do not want the man's rights, but simply our own, natural, womanly rights. There are man's rights and woman's rights. Both different, yet both equally inalienable. There must be a head in every firm; and the head in the Marriage Firm or Union is the man, as the Bible and nature both plainly teach. We maintain that the senior partner, the man, has rights of the greatest importance, as regards the interests of the marriage firm, which should not only be respected and protected by our government, but also enforced upon them as an obligation, if the senior is not self-moved to use his rights practically--and one of these his rights, is a right to protect his own wife and children. The junior partner also has rights of equal moment to the interests of the firm, and one of these is her right to be protected by her senior partner. Not protected in a prison, but in her own home, as mistress of her own house, and as a God appointed guardian of her infant children. The government would then be protecting the marriage union, while it now practically ignores it. To make this matter still plainer, suppose this government was under the control of the female instead of the male influence, and suppose our female government should enact laws which required the men when they entered the marriage union to alienate their right to hold their own property--their right to hold their future earnings--their right to their own homes--their right to their own offspring, if they should have any--their right to their personal liberty--and all these rights be passed over into the hands of their wives for safe keeping, and so long as they chose to be married men, all their claims on our womanly government for protection should be abrogated entirely by this marriage contract. Now, I ask, how many men would venture to get married under these laws? Would they not be tempted to ignore the marriage laws of our woman government altogether? Now, gentlemen, we are sorry to own it, this is the very condition in which your man government places us. We, women, looking from this very standpoint of sad experience, are tempted to exclaim, where is the manliness of our man government! Divorce, I say, then, is in itself an evil--and is only employed as an evil to avoid a greater one, in many instances. Therefore, instead of being forced to choose the least of two evils, I would rather reject both evils, and choose a good thing, that of being protected in my own dear home from unmerited, unreasonable abuse--a restitution of my rights, instead of a continuance of this robbery, sanctioned by a divorce. In short, we desire to live under such laws, as will _oblige_ our husbands to treat us with decent respect, so long as our good conduct merits it, and then will they be made to feel a decent regard for us as their companions and partners, whom the laws protect from their abuse. SECOND QUESTION. "What are your opinions, Mrs. Packard, which have caused all this rupture in your once happy family?" My first impulse prompts we to answer, pertly, it is no one's business what I _think_ but my own, since it is to God alone I am accountable for my thoughts. Whether my thoughts are right or wrong, true or false, is no one's business but my own. It is my own God given right to superintend my own thoughts, and this right I shall never guarantee to any other human being--for God himself has authorized me to "judge ye not of your own selves what is right?" Yes, I do, and shall judge for myself what is right for me to think, what is right for me to speak, and what is right for me to do--and if I do wrong, I stand amenable to the laws of society and my country; for to human tribunals I submit all my actions, as just and proper matter for criticism and control. But my thoughts, I shall never yield to any human tribunal or oligarchy, as a just and proper matter for arbitration or discipline. It is my opinion that the time has gone by for thoughts to be chained to any creeds or oligarchys; but on the contrary, these chains and restraints which have so long bound the human reason to human dictation, must be broken, for the reign of individual, spiritual freedom is about dawning upon our progressive world. Yes, I insist upon it, that it is my own individual right to superintend my own thoughts; and I say farther, it is not my right to superintend the thoughts or conscience of any other developed being. It is none of my business what Mr. Packard, my father, or any other developed man or woman believe or think, for I do not hold myself responsible for their views. I believe they are as honest and sincere as myself in the views they cherish, although so antagonistic to my own; and I have no wish or desire to harass or disturb them, by urging my views upon their notice. Yea, further, I _prefer_ to have them left entirely free and unshackled to believe just as their own developed reason dictates. And all I ask of them is, that they allow me the same privilege. My own dear father does kindly allow me this right of a developed moral agent, although we differ as essentially and materially in our views as Mr. Packard and I do. We, like two accountable moral agents, simply agree to differ, and all is peace and harmony. My individuality has been naturally developed by a life of practical godliness, so that I now know what I do believe, as is not the case with that class in society who dare not individualize themselves. This class are mere echoes or parasites, instead of individuals. They just flow on with the tide of public sentiment, whether right or wrong; whereas the individualized ones can and do stem or resist this tide, when they think it is wrong, and in this way they meet with persecution. It is my misfortune to belong to this unfortunate class. Therefore I am not ashamed or afraid to avow my honest opinions even in the face of a frowning world. Therefore, when duty to myself or others, or the cause of truth requires it, I willingly avow my own honest convictions. On this ground, I feel not only justified, but authorized, to give the question under consideration, a plain and candid answer, knowing that this narrative of the case would be incomplete without it. Another thing is necessary as an introduction, and that is, I do not present my views for others to adopt or endorse as their own. They are simply my individual opinions, and it is a matter of indifference to me, whether they find an echo in any other individual's heart or not. I do not arrogate to myself any popish right or power to enforce my opinions upon the notice of any human being but myself. While at the same time I claim that I have just as good a right to my opinions as Scott, Clark, Edwards, Barnes, or Beecher, or any other human being has to theirs. And furthermore, these theologians have no more right to dictate to me what I must think and believe, than I have to dictate to them what they must think and believe. All have an equal right to their own thoughts. And I know of no more compact form in which to give utterance to my opinions, than by inserting the following letter, I wrote from my prison, to a lady friend in Mt. Pleasant, Iowa, and sent out on my "under ground railroad." The only tidings I ever got from this letter, was a sight of it in one of the Chicago papers, following a long and minute report of my jury trial at Kankakee. I never knew how it found its way there; I only knew it was my own identical letter, since I still retain a true copy of the original among my Asylum papers. The following is a copy of the original letter, as it now stands in my own hand-writing. The friend to whom it was written has requested me to omit those portions of the letter which refer directly to herself. In compliance with her wishes, I leave a blank for such omissions. In other respects it is a true copy. The candid reader can judge for himself, whether the cherishing of such radical opinions is not a _crime_ of sufficient magnitude, to justify all my wrongs and imprisonment! Is not my persecutor guiltless in this matter? COPY OF THE LETTER. _Jacksonville, Ill., Oct. 23d, 1861._ MRS. FISHER. MY DEAR OLD FRIEND:-- My love and sympathy for you is undiminished. Changes do not sever our hearts. I cannot but respect your self-reliant, independent, and therefore progressive efforts to become more and more assimilated to Christ's glorious image. I rejoice whenever I find one who dares to rely upon their own organization, in the investigation of truth. In other words, one who dares to be an independent thinker. * * * Yes, you, Mrs. Fisher, in your individuality, are just what God made you to be. And I respect every one who respects himself enough not to try to pervert their organization, by striving to remodel it, and thus defile God's image in them. To be natural, is our highest praise. To let God's image shine through our individuality, should be our highest aim. Alas, Mrs. Fisher, how few there are, who dare to be true to their God given nature! That terrible dogma that our natures are depraved, has ruined its advocates, and led astray many a guileless, confiding soul. Why can we not accept of God's well done work as perfect, and instead of defiling, perverting it, let it stand in all its holy proportions, filling the place God designed it to occupy, and adorn the temple it was fitted for? I, for one, Mrs. Fisher, am determined to be a woman, true to my nature. I regard my nature as holy, and every deviation from its instinctive tendency, I regard as a perversion--a sin. To live a natural, holy life, as Christ did, I regard as my highest honor, my chief glory. I know this sentiment conflicts with our educated belief--our Church creeds--and the honestly cherished opinions of our relatives and friends. Still I believe a "thus saith the Lord" supports it. Could Christ take upon himself our nature, and yet know no sin, if our natures are necessarily sinful? Are not God's simple, common sense teachings, authority enough for our opinions? It is, to all honest souls. Indeed, Mrs. Fisher I have become so radical, as to call in question every opinion in my educated belief, which conflicts with the dictates of reason and common sense. I even believe that God has revealed to his creatures no practical truth, which conflicts with the common instincts of our common natures. In other words, I believe that God has adapted our natures to his teachings. Truth and nature harmonize. I believe that all truth has its source in God, and is eternal. But some perceive truth before others, because some are less perverted in their natures than others, by their educational influences, so that the light of the sun of righteousness finds less to obstruct its beams in some than in others. Thus they become lights in the world, for the benefit of others less favored. * * * You preceded me, in bursting the shackles of preconceived opinions and creeds, and have been longer basking in the liberty wherewith Christ makes his people free, and have therefore longer been taught of him in things pertaining to life and godliness. Would that I had had the mental courage sooner to have imitated you, and thus have broken the fetters which bound me to dogmas and creeds. O, Mrs. Fisher, how trammelled and crippled our consciences have been! O, that we might have an open Bible, and an unshackled conscience! And these precious boons we shall have, for God, by his providence, is securing them to us. Yes, Mrs. Fisher, the persecutions through which we are now passing is securing to us spiritual freedom, liberty, a right, a determination to call no man master, to know no teacher but the Spirit, to follow no light or guide not sanctioned by the Word of God and our conscience--to know no "ism" or creed, but truthism, and no pattern but Christ. Henceforth, I am determined to use my own reason and conscience in my investigation of truth, and in the establishment of my own opinions and practice I shall give my own reason and conscience the preference to all others. * * * I know, also, that I am a sincere seeker after the simple truth. I know I am not willful, but conscientious, in my conduct. And, notwithstanding others deny this, I know their testimony is false. The Searcher of hearts knows that I am as honest with myself, as I am with others. And, although like Paul, I may appear foolish to others in so doing, yet my regard for truth, transcends all other considerations of minor importance. God's good work of grace in me shall never be denied by me, let others defame it, and stigmatize it as insanity, as they will. They, not I, are responsible for this sacrilegious act. God himself has made me dare to be honest and truthful, even in defiance of this heaven daring charge, and God's work will stand in spite of all opposition. "He always wins, who sides with God." Mrs. Fisher, I am not now afraid or ashamed to utter my honest opinions. The worst that my enemies can do to defame my character, they have done, and I fear them no more. I am now free to be true and honest, for this persecution for opinion and conscience' sake, has so strengthened and confirmed me in the free exercise of these inalienable rights in future, that no opposition can overcome me. For I stand by faith in what is true and right. I feel that I am born into a new element--freedom, spiritual freedom. And although the birth throes are agonizing, yet the joyous results compensate for all. How mysterious are God's ways and plans! My persecutors verily thought they could compel me to yield these rights to human dictation, when they have only fortified them against human dictation. God saw that suffering for my opinions, was necessary to confirm me in them. And the work is done, and well done, as all God's work always is. No fear of any human oligarchy will, henceforth, terrify me, or tempt me to succumb to it. I am not now afraid that I shall be called insane, if I avow my belief that Christ died for all mankind, and that this atonement will be effectual in saving all mankind from endless torment--that good will ultimately overcome all evil--that God's benevolent purposes concerning his creatures will never be thwarted--that no rebellious child of God's great family will ever transcend his ability to discipline into entire willing obedience to his will. Can I ever believe that God loves his children less than I do mine? * * * And has God less power to execute his kind plans than I have? Yes, I do and will rejoice to utter with a trumpet tongue, the glorious truth, that God is infinitely benevolent as well as infinitely wise and just. Mrs. Fisher, what can have tempted us ever to doubt this glorious truth? And do we not practically deny it, when we endorse the revolting doctrine of endless punishment? I cannot but feel that the Bible, literally interpreted, teaches the doctrine of endless punishment; yet, since the teachings of nature, and God's holy character and government, seem to contradict this interpretation, I conclude we must have misinterpreted its holy teachings. For example, Jonah uses the word everlasting with a limited meaning, when he says, "thine everlasting bars are about me." Although to _his_ view his punishment was everlasting, yet the issue proved that in reality, there was a limit to the time he was to be in the whale's belly. So it may be in the case of the incorrigible; they may be compelled to suffer what _to them_ is endless torment, because they see no hope for them in the future. Yet the issue will prove God's love to be infinite, in rescuing them from eternal perdition. Again, Mrs. Fisher, my determination and aim is, to become a perfect person in _Christ's_ estimation, although by so doing, I may become the filth and off-scouring of all perverted humanity. What consequence is it to us to be judged of man's judgment, when the cause of our being thus condemned by them as insane, is the very character which entitles us to a rank among the archangels in heaven? Again, I am calling in question my right to unite myself to any Church of Christ militant on earth; fearing I shall be thereby entrammelled by some yoke of bondage--that the liberty wherewith Christ makes his people free may thus be circumscribed. There is so much of the spirit of bigotry and intolerance in every denomination of Christians now on earth, that they do not allow us an open Bible and an unshackled conscience. Or, in other words, there are some to be found in almost every church, to whom we shall become stumbling blocks or rocks of offence, if we practically use the liberty which Christ offers us. Now what shall I do? I do want to obey Christ's direct command to come out from the world and be separate, while at the same time I feel that there is more Christian liberty and charity out of the Church than in it. I am now waiting and seeking the Spirit's aid in bringing this question to a practical test and issue. And, Mrs. Fisher, I fully believe, from God's past care of me, that he will lead me to see the true and living way in which I ought to walk. I will not hide my light under a bushel, but put it upon a candlestick, that it may give light to others. I will also live out, practically, my honestly cherished opinions, believing "that they that _do_ his commandments shall _know_ of the doctrine." I also fully believe that the more fully and exclusively I _live out_ the teachings of the Holy Spirit, the more persecution I shall experience. For they that will live godly, in Christ's estimation, "shall suffer persecution." Mrs. Fisher, I fully believe that Christ's coming cannot be far distant. His coming will restore all things, which we have lost for his sake. Our cause will then find an eloquent pleader in Christ himself, and through our Advocate, the Judge, Himself, will acknowledge us to be his true, loyal subjects, and we shall enter into the full possession of our promised inheritance. With this glorious prospect in full view to the eye of faith, let us "gird up the loins of our mind." In other words, let us dare to pursue the course of the _independent thinker_, and let us run with patience the race set before us. Let us carry uncomplainingly the mortifying cross, which is laid upon us, so long as God suffers it to remain; remembering that it is enough for the servant that he be as his Master. For "as they have persecuted me, they will persecute you also." "Be of good cheer." Mrs. Fisher, "I have overcome the world." Blessed consolation! Mrs. Fisher, the only response I expect to get from this letter, is your silent heartfelt sympathy in my sorrows. No utterance is allowed for my alleviation. And the only way that I am allowed to administer consolation through the pen is by stratagem. I shall employ this means so far as lies in my power, so that when the day of revelation arrives, it may be said truthfully of me, "she hath done what she could." Impossibilities are not required of us. Please tell Theophilus, my oft repeated attempts to send him a motherly letter, have been thwarted. And he, poor persecuted boy! cannot be allowed a mother's tender, heartfelt sympathy. O, my God, protect my precious boy! and carry him safely through this pitiless storm of cruel persecution. Do be to him a mother and a sister, and God shall bless you. Please deliver this message, charged to overflowing with a mother's undying love. Be true to Jesus. Ever believe me your true friend and sympathizing sister, E. P. W. PACKARD. THIRD QUESTION. "Do you think, Mrs. Packard, that your husband really believes you are an insane person?" I do not. I really believe he knows I am a sane person; and still, he is struggling with all his might to make himself and others believe this delusion, because his own conscience is accusing him constantly with this lie against it. With all his accumulated testimonials that I am insane, and all his sophistries and reasoning upon false premises to establish this lie, he cannot silence this accusing monitor within himself, testifying to the contrary. Either this is in reality the case, or he has at last reached that point, where a person has made such a sinner of his own conscience as to believe his own lies; or, in other words, he has so perverted his conscience as to become _conscientiously wrong_. But it is not for me to judge his heart, only from the standpoint of his own actions, and from this basis, I give the above as my honest opinion on this point. Two facts alone may be sufficient to give some corroboration in support of this opinion. After taking me from my asylum prison, and while his prisoner at my own house, he asked me to sign a deed for the transfer of some of his real estate in Mt. Pleasant, Iowa, and finding I could not be induced to do it, without returning to me my note of six hundred dollars he had robbed me of, and also some of my good clothing, he sought to transfer it, as the law allows one to do, in case the needed witness is legally incapacitated by insanity to give their signature; and for this purpose he was obliged to take an _oath_ that I was insane. He did take this oath that I was insane, and thereby outlawed as a legal witness. It was administered by Justice Labrie. A few days after this, he called this same Justice in to our house to witness my signing this deed, and used it as a valid signature. Now to say under oath one thing one day, and to deny it the next, is rather crooked business for a healthy Christian conscience to sanction. Another fact. When he was preparing to put me into an Insane Asylum, I asked him why he was so very anxious to put the stigma of insanity upon me, when he knew I was not insane? Said he, "I am doing it so that your opinions need not be believed. I must protect the cause of Christ." Cause of Christ! I felt like exclaiming, if _your_ cause of Christ needs _such_ a defence, I think it must be in a sad condition. If it can't stand before the opinions of a woman, I shouldn't think a man would attempt to protect it! The truth is, the cause of Christ _to him_ is his creed--a set of human opinions. While the real cause of Christ is _humanity_; and a very important part of this cause of Christ to a true man, is the protection of his own wife. FOURTH QUESTION. "Could you forgive Mr. Packard, and live with him again as his wife?" Yes, I could, freely, promptly and fully forgive him, on the gospel condition of _practical repentance_. This condition could secure it, and this alone. As I understand Christ's teachings, he does not allow me to forgive him until he does repent, and in some sense make restitution. He directs me to forgive my brother _if he repent_--yea, if he sins and repents seventy times seven, I must forgive as many times. But if he does not repent, I am not allowed to forgive him. And so long as he insists upon it, both by word and deed, that he has done only what was right for him to do, and that he shall do the same thing again, if he has a chance to, I do not see any chance for me to bestow my forgiveness upon a penitent transgressor. He feels that I am the one to ask forgiveness, for not yielding my opinions to his dictation, instead of causing him so much trouble in trying to bring me under subjection to his will, in this particular. He does not claim that I ever resisted his will in any other particular--and I have not felt it my duty to do so. I had rather yield than quarrel any time, where conscience is not concerned. He knows I have done so, for twenty-one years of married life. But to tell a lie, and be false to my honest convictions, by saying, I believed what I did not believe, I could not be made to do. My truth loving nature could never be subjected to falsify itself--I must and shall be honest and truthful. And although King David said in his haste, "all _men_ are liars," I rejoice he did not say all _women_ were, for then there would have been no chance for my vindication of myself as a _truthful_ woman! This one thing is certain, I have been imprisoned three years because I could not tell a lie, and now I think it would be bad business for me to commence at this late hour. I cannot love oppression, wrong, or injustice under any circumstances. But on the contrary, I do hate it, while at the same time I can love the sinner who thus sins; for I find it in my heart to forgive to any extent the _penitent_ transgressor. I am not conscious of feeling one particle of revengeful feeling towards Mr. Packard, while at the same time I feel the deepest kind of indignation at his abuses of me. And furthermore, I really feel that if any individual ever _deserved_ penitentiary punishment, Mr. Packard does, for his treatment of me. Still, _I_ would not inflict _any_ punishment, upon him--for this business of punishing my enemies I am perfectly content to leave entirely with my Heavenly Father, as he requires me to do, as I understand his directions. And my heart daily thanks God that it is not my business to punish him. One sinner has no right to punish another sinner. God, our Common Father, is the only being who holds this right to punish any of his great family of human children. All that is required of me is, to do him good, and to protect myself from his abuse as best I can; and it is not doing him good to forgive him before he repents. It is reversing God's order. It is not to criminate him that I have laid the truth before the public. Duty demands it as an act of self-defence on my part, and a defence of the rights of that oppressed class of married women which my case represents. I do not ask for him to be punished at any human tribunal; all I ask is, protection for myself, and also the class I represent. One other fact it may be well here to mention, and that is: I have withdrawn all fellowship with him in his present attitude towards me. I do not so much as speak or write to him, and this I do from the principle of self-defence, and not from a spirit of revenge. I know all my words and actions are looked upon through a very distorted medium, and whatever I say or do, he weaves into capital to carry on his persecution with. And I think I have Christ's example too as my defence in this course; for when he was convinced his persecutors questioned him only for the purpose of catching him in his words, "he was speechless." I have said all I have to say to Mr. Packard in his present character. But when he repents, I will forgive him, and restore him to full communion. FIFTH QUESTION. "In what estimation is Mr. Packard held in the region where these scenes were enacted?" Where the truth is known, and as the revelations of the court room developed the facts exactly as they were found to exist, the popular verdict is decidedly against him. Indeed, the tide of popular indignation rises very high among that class, who defend religious liberty and equal rights, free thought, free speech, free press. I state this as a fact which my own personal observation demonstrates. In canvassing for my book in many of the largest cities in the State of Illinois, I had ample opportunity to test this truth, and were I to transcribe a tithe of the expressions of this indignant feeling which I alone have heard, it would swell this pamphlet to a mammoth size. A few specimen expressions must therefore be taken as a fair representation of this popular indignation. "Mr. Packard cannot enter our State without being in danger of being lynched," is an expression I have often heard made from the common people. From the soldiers I have often heard these, and similar expressions; "Mrs. Packard, if you need protection again, just let us know it, and we will protect you with the bullet, if there is no other defence." "If he ever gets you into another Asylum, our cannon shall open its walls for your deliverance," &c. The Bar in Illinois may be represented by the following expressions, made to me by the Judges of the Supreme Court, in Ottawa Court house. "Mrs. Packard, this is the foulest outrage we ever heard of in real life; we have read of such deep laid plots in romances, but we never knew one _acted out_ in real life before. We did not suppose such a plot could be enacted under the laws of our State. But this we will say, if ever you are molested again in our State, let us know it, and we will put Mr. Packard and his conspiracy where they ought to be put." The pulpit of Illinois almost universally condemns the outrage, as a crime against humanity and human rights. But fidelity to the truth requires me to say that there are some exceptions. The only open defenders I ever heard for Mr. Packard, came from the Church influence, and the pulpit. Among all the ministers I have conversed with on this subject, I have found only two ministers who uphold his course. One Presbyterian minister told me, he thought Mr. Packard had done right in treating me as he had; "you have no right," said he, "to cherish opinions which he does not approve, and he did right in putting you in an Asylum for it. I would treat my wife just so, if she did so!" The name and residence of this minister I could give if I chose, but I forbear to do so, lest I expose him unnecessarily. The other clergyman was a Baptist minister. "I uphold Mr. Packard in what he has done, and I would help him in putting you in again should he attempt it." The name and place of this minister I shall withold unless self-defence requires the exposure. When I have added one or two more church members to those two just named, it includes the whole number I ever heard defend, in my presence, Mr. Packard's course. Still, I have no doubt but that these four represent a minority in Illinois, who are governed by the same popish principles of bigotry and intolerance as Mr. Packard is. And I think it may be said of this class, as a Chicago paper did of Mr. Packard, after giving an account of the case, the writer said: "The days of bigotry and oppression are not yet past. If three-fourths of the people of the world were of the belief of Rev. Packard and his witnesses, the other fourth would be burned at the stake." The opinion of his own church and community in Manteno, where he preached at the time I was kidnapped, is another class whose verdict the public desire to know also. I will state a few facts, and leave the public to draw their own inferences. When he put me off, his church and people were well united in him, and as a whole, the church not only sustained him in his course, but were active co-conspirators. When I returned, he preached nowhere. He was closeted at his own domicil on the Sabbath, cooking the family dinner, while his children were at church and sabbath school. His society was almost entirely broken up. I was told he preached until none would come to hear him; and his deacons gave as their reason for not sustaining him, that the trouble in his family had destroyed his influence in that community. Multitudes of his people who attended my trial, whom I know defended him at the time he kidnapped me, came to me with these voluntary confessions: "Mrs. Packard, I always knew you were not insane." "I never believed Mr. Packard's stories." "I always felt that you was an abused woman," &c., &c. These facts indicated some change even in the opinion of his own allies during my absence. As I said, I leave the public to draw their own inferences. I have done my part to give them the premises of facts, to draw them from. SIXTH QUESTION. "Mrs. Packard, is your husband's real reason for treating you as he has, merely a difference in your religious belief, or is there not something back of all this? It seems unaccountable to us, that mere bigotry should so annihilate all human feeling." This is a question I have never been able hitherto to answer, satisfactorily, either to myself or others; but now I am fully prepared to answer it with satisfaction to myself, at least; that is, facts, stubborn facts, which never before came to my knowledge until my visit home, compel me to feel that my solution of this perplexing question, is now based on the unchangeable truth of facts. For I have read with my own eyes the secret correspondence which he has kept up with my father, for about eight years past, wherein this question is answered by himself, by his own confessions, and in his own words. And as a very natural prelude to this answer, it seems to me not inappropriate to answer one other question often put to me first, namely: "has he not some other woman in view?" I can give my opinion now, not only with my usual promptness, but more than my usual confidence that I am correct in my opinion. I say confidently, he has _not_ any other woman in view, nor never had; and it was only because I could not fathom to _the cause_ of this "Great Drama," that this was ever presented to my own mind, as a question. I believe that if ever there was a man who _practically_ believed in the monogamy principle of marriage, he is the man. Yes, I believe, with only one degree of faith less than that of knowledge, that the only Bible reason for a divorce never had an existence in our case. And here, as the subject is now opened, I will take occasion to say, that as I profess to be a Bible woman both in spirit and practice, I cannot conscientiously claim a Bible right to be divorced. I never have had the first cause to doubt his fidelity to me in this respect, and he never has had the first cause to doubt my own to him. But fidelity to the truth of God's providential events compel me to give it as my candid opinion, that the only key to the solution of this mysterious problem will yet be found to be concealed in the fact, that Mr. Packard is a _monomaniac_ on the subject of woman's rights, and that it was the triumph of bigotry over his manliness, which occasioned this public manifestation of this peculiar mental phenomenon. Some of the reasons for this opinion, added to the facts of this dark drama which are already before the public, lie in the following statement. In looking over the correspondence above referred to, I find the "confidential" part all refers to dates and occasions wherein I can distinctly recollect we had had a warm discussion on the subject of woman's rights; that is, I had taken occasion from the application of his insane dogma, namely, that "_a woman has no rights that a man is bound to respect_," to defend the opposite position of equal rights. I used sometimes to put my argument into a written form, hoping thus to secure for it a more calm and quiet consideration. I never used any other weapons in self-defence, except those paper pellets of the brain. And is not that man a coward who cannot stand before such artillery? But not to accuse Mr. Packard of cowardice, I will say, that instead of boldly meeting me as his antagonist on the arena of argument and discussion, and there openly defending himself against my knockdown arguments, with his Cudgel of Insanity, I find he closed off such discussions with his secret "confidential" letters to my relatives and dear friends, saying, that he had sad reason to fear his wife's mind was getting out of order; she was becoming insane on the subject of woman's rights; "but be sure to keep this fact a profound secret--especially, never let Elizabeth hear that _I_ ever intimated such a thing." I presume this is not the first time an opponent in argument has called his conqueror insane, or lost to reason, simply because his logic was too sound for him to grapple with, and the will of the accuser was too obstinate to yield, when conscientiously convinced. But it certainly is more honorable and manly, to accuse him of insanity _to his face_, than it is to thus _secretly_ plot against him an imprisonable offence, without giving him the least chance at self-defence. Again, I visited Hon. Gerrit Smith, of Peterborough, New York, about three years before this secret plot culminated, to get light on this subject of woman's rights, as I had great confidence in the deductions of his noble, capacious mind; and here I found my positions were each, and all, indorsed most fully by him. Said he, "Mrs. Packard, it is high time that you _assert your rights_, there is no other way for you to live a Christian life with such a man." And, as I left, while he held my hand in his, he remarked, "You may give my love to Mr. Packard, and say to him, if he is as developed a man as I consider his wife to be a woman, I should esteem it an honor to form his acquaintance." So it appears that Mr. Smith did not consider my views on this subject as in conflict either with reason or common sense. Again, his physician, Dr. Fordice Rice, of Cazenovia, New York, to whom I opened my whole mind on this subject, said to me in conclusion--"I can unravel the whole secret of your family trouble. Mr. Packard is a monomaniac on the treatment of woman. I don't see how you have ever lived with so unreasonable a man." I replied, "Doctor, I can live with any man--for I will never quarrel with any one, especially a man, and much less with my husband. I can respect Mr. Packard enough, notwithstanding, to do him good all the days of my life, and no evil do I desire to do him; and moreover, I would not exchange him for any man I know of, even if I could do so, simply by turning over my hand; for I believe he is just the man God appointed from all eternity to be my husband. Therefore, I am content with my appointed portion and lot of conjugal happiness." Again. It was only about four years before I was kidnapped, that Mr. O. S. Fowler, the great Phrenologist, examined his head, and expressed his opinion of his mental condition in nearly these words. "Mr. Packard, you are losing your mind--your faculties are all dwindling--your mind is fast running out--in a few years you will not even know your own name, unless your tread-mill habits are broken up. Your mind now is only working like an old worn out horse in a tread mill." Thus our differences of opinion can be accounted for on scientific principles. Here we see his sluggish, conservative temperament, rejecting light, which costs any effort to obtain or use--clinging, serf-like, to the old paths, as with a death grasp; while my active, radical temperament, calls for light, to bear me onward and upward, never satisfied until all available means are faithfully used to reach a more progressive state. Now comes the question. Is activity and progression in knowledge and intelligence, an indication of a sane, natural condition, or is it an unnatural, insane indication? And is a stagnant, torpid, and retrogressive state of mentality, a natural or an unnatural condition--a sane, or an insane state? In our mental states we simply grew apart, instead of together. He was dwindling, dying; I was living, growing, expanding. And this natural development of intellectual power in me, seemed to arouse this morbid feeling of jealousy towards me, lest I outshine him. That is, it stimulated his monomania into exercise, by determining to annihilate or crush the victim in whose mental and moral magnetism he felt so uneasy and dissatisfied with himself. While, at the same time, the influence of my animal magnetism, was never unpleasant to him; but, on the contrary, highly gratifying. Yea, I have every reason to believe he ever regarded me as a model wife, and model mother, and housekeeper. He often made this remark to me: "I never knew a woman whom I think could equal you in womanly virtues." Again. While on this recruiting tour, I made it my home for several weeks at Mr. David Field's, who married my adopted sister, then living in Lyons, New York. I made his wife my confidant of my family trials, to a fuller degree than I ever had to any other human being, little dreaming or suspecting that she was noting my every word and act, to detect if possible, some insane manifestations. But, to her surprise, eleven weeks observation failed to develop the first indication of insanity. The reason she was thus on the alert, was, that my arrival was preceded by a letter from Mr. Packard, saying his wife was insane, and urged her to regard all my representations of family matters as insane statements. Then he added, "Now, Mrs. Field, I must require of you one thing, and that is, that you burn this letter as soon as you have read it; don't even let your husband see it at all, or know that you have had a letter from me, and by all means, keep this whole subject a profound secret from Elizabeth." My sister, true to Mr. Packard's wishes, burned this letter, and buried the subject entirely in oblivion. But when she heard that I was incarcerated in an Asylum, then, in view of all she did know, and in view of what she did not know, she deeply suspected there was foul play in the transaction, and felt it to be her duty to tell her husband all she knew. He fully indorsed her suspicions, and they both undertook a defence for me, when she received a most insulting and abusive letter from Mr. Packard, wherein he, in the most despotic manner, tried to browbeat her into silence. Many tears did this devoted sister shed in secret over this letter and my sad fate--as this letter revealed Mr. Packard's true character to her in an unmasked state. "O, how could that dear, kind woman live with such a man!" was her constant thought. Nerved and strengthened by her husband's advice, she determined to visit me in the Asylum, and, if possible, obtain a personal interview. She did so. She was admitted to my room. There she gave me the first tidings I ever heard of that letter. While at the Asylum, my attendants, amongst others, asked her this question: "Mrs. Field, can you tell us why such a lady as Mrs. Packard, is shut up in this Asylum; we have never seen the least exhibition of insanity in her; and one in particular said, I saw her the first day she was entered, and she was then just the same quiet, perfect lady, you see her to be to day--now do tell us why she is here?" Her reply I will not give, since her aggravated and indignant feelings prompted her to clothe it in very strong language against Mr. Packard, indicating that he ought to be treated as a criminal, who deserved capital punishment. In my opinion, sister would have come nearer the truth, had she said he ought to be treated just as he is treating his wife--as a monomaniac. And I hope I shall be pardoned, if I give utterance to brother's indignant feelings, in his own words, for the language, although strong, does not conflict with Christ's teachings or example. Among the pile of letters above alluded to, which Mr. Packard left accidentally in my room, was one from this Mr. Field, which seemed to be an answer to one Mr. Packard wrote him, wherein it seemed he had been calling Mr. Field to account for having heard that he had called him a "devil," and demanded of him satisfaction, if he had done so; for Mr. Field makes reply: "I do believe men are possessed with devils now a days, as much as they were in Christ's days, and I believe too that some are not only possessed with one devil, but even seven devils, and I believe _you are the man_!" I never heard of his denying the charge as due Mr. Field afterwards! From my own observations in an insane asylum, I am fully satisfied that Mr. Field is correct in his premises, and I must also allow that he has a right of opinion in its application. Looking from these various stand-points, it seems to me self-evident, that this Great Drama is a woman's rights struggle. From the commencement to its present stage of development, this one insane idea seems to be the backbone of the rebellion: A married woman has no rights which her husband is bound to respect. While he simply defended his insane dogma as an _opinion_ only, no one had the least right to call him a monomaniac; but when this insane idea became a _practical_ one, then, and only till then, had we any right to call him an insane person. Now, if the course he has taken with me is not insanity--that is, an unreasonable course, I ask, what is insanity? Now let this great practical truth be for one moment considered, namely, All that renders an earth-life desirable--all the inalienable rights and privileges of one developed, moral, and accountable, sensitive being, lie wholly suspended on the arbitrary will of this intolerant man, or monomaniac. No law, no friend, no logic, can defend me in the least, _legally_, from this despotic, cruel power; for the heart which controls this will has become, as it respects his treatment of me, "without understanding, a covenant breaker, without natural affection, implacable, unmerciful." And let another truth also be borne in mind, namely, that this one man stands now as a fit representative of all that class in society, and God grant it may be found to be a very small class! who claim that the subjection of the wife, instead of the protection of the wife, is the true law of marriage. This marriage law of subjection has now culminated, so that it has become a demonstrated fact, that its track lies wholly in the direction of usurpation; and therefore this track, on which so many devoted, true women, have taken a through or life ticket upon, is one which the American government ought to guard and protect by legal enactments; so that such a drama as mine cannot be again legally tolerated under the flag of our protective government. God grant, that this one mute appeal of _stubborn fact_, may be sufficient to nerve up the woman protectors of our manly government, to guard us, in some manner, against woman's greatest foe--the women subjectors of society. It may be proper here to add the result of this recruiting tour. After being absent eleven weeks from my home, and this being the first time I had left my husband during all my married life, longer than for one week's time, I returned to my home, to receive as cordial and as loving a welcome as any wife could desire. Indeed, it seemed to me, that the home of my husband's heart had become "empty, swept, and garnished," during my absence, and that the foul spirits of usurpation had left this citadel, as I fondly hoped, forever. Indeed, I felt that I had good reason to hope, that my logic had been calmly and impassionately digested and indorsed, during my absence, so that now this merely practical recognition of my womanly rights, almost instantly moved my forgiving heart, not only to extend to him, unasked, my full and free forgiveness for the past, but all this abuse seemed to be seeking to find its proper place in the grave of forgetful oblivion. This radical transformation in the bearing of my husband towards me, allowing me not only the rights and privileges of a junior partner in the family firm, but also such a liberal portion of manly expressed love and sympathy, as caused my susceptible, sensitive, heart of affection fairly to leap for joy. Indeed, I could now say, what I could never say in truth before, I am happy in my husband's love--happy in simply being treated as a true woman deserves to be treated--with love and confidence. All the noblest, purest, sensibilities of woman's sympathetic nature find in this, her native element, room for full expansion and growth, by stimulating them into a natural, healthful exercise. It is one of the truths of God's providential events, that the three last years of married life were by far the happiest I ever spent with Mr. Packard. So open and bold was I in this avowal, during these three happy years, that my correspondence of those days is radiant with this truth. And it was not three months, and perhaps not even two months, previous to my being kidnapped, that I made a verbal declaration of this fact, in Mr. Packard's presence, to Deacon Dole, his sister's husband, in these words. The interests of the Bible class had been our topic of conversation, when I had occasion to make this remark: "Brother," said I, "don't you think Mr. Packard is remarkably tolerant to me these days, in allowing me to bring my radical views before your class? And don't you think he is changing as fast as we can expect, considering his conservative organization? We cannot, of course, expect him to keep up with my radical temperament. I think we shall make a man of him yet!" Mr. Packard laughed outright, and replied, "Well, wife, I am glad you have got so good an opinion of me. I hope I shall not disappoint your expectations!" But, alas! where is he now? O, the dreadful demon of bigotry, was allowed to enter and take possession of this once garnished house, through the entreaties, and persuasions, and threats, of his Deacon Smith, and his perverted sister, Mrs. Dole. These two spirits united, were stronger than his own, and they overcame him, and took from him all his manly armor, so that the demon he let in, "brought with him seven other spirits more wicked than himself, and they enter in and dwell there," still; so that I sadly fear "the last state of that man will be worse than the first." I saw and felt the danger of the vortex into which his sister and deacon were dragging him, and I tried to save him, with all the logic of love, and pure devotion to his highest and best interests; but all in vain. Never shall I forget this fatal crisis. When, just three weeks before he kidnapped me, I sat alone with him in his study, and while upon his lap, with my arms encircling his neck, and my briny cheek pressed against his own, I begged of him to be my protector, in these words: "O, husband! don't yield to their entreaties! Do be true to your marriage vow--true to yourself--true to God. Instead of taking the side of bigotry, and going against your wife, do just protect to me my right of opinion, which this deacon and sister seem determined to wrest from me. Just say to the class, "My wife has as good a right to her opinion as the class have to theirs--and I shall _protect_ her in this right--you need not believe her opinions unless you choose; but she shall have her rights of opinion, unmolested, for I shall be my wife's protector." I added, "Then, husband, you will be a _man_. You will deserve honor, and you will be sure to have it; but if you become my persecutor, you will become a traitor to your manliness; you will deserve dishonor, and you will surely get it in full measure." My earnestness he construed into anger. He thrust me from him. He determined, at all hazard, to subject my rights of opinion to his will, instead of protecting them by his manliness. The plot already laid, eight years previous, now had a rare opportunity to culminate, sure as he was of all needed help in its dreadful execution. In three short weeks I was a State's prisoner of Illinois Lunatic Asylum, being supported as a State pauper! From this fatal evening all appeals to his reason and humanity have been worse than fruitless. They have only served to aggravate his maddened feelings, and goad him on to greater deeds of desperation. Like Nebuchadnezzar, his reason is taken from him, on this one subject; and unrestrained, maddened, resentment fills his depraved soul--his manliness is dead. Is he not a monomaniac? FALSE REPORTS CORRECTED. I find in circulation various false reports and misrepresentations, so slanderous in their bearing upon my character and reputation, and that of my family relatives, that I think they demand a passing notice from me, in summing up this brief record of events. FIRST REPORT. "Mrs. Packard's mother was an insane woman, and several of her relatives have been insane; and, therefore, Mrs. Packard's insanity is hereditary, consequently, she is hopelessly insane." This base and most cruel slander originated from Mr. Packard's own heart; was echoed before the eyes of the public, by Dr. McFarland, Superintendent of the Insane Asylum, through the Chicago Tribune, in a letter which he wrote to the Tribune in self-defence, after my trial. The verdict of the jury virtually impeached Dr. McFarland as an accomplice in this foul drama, and as one who had prostituted his high public trust, in a most notorious manner. This presentation of him and his institution before the public, seemed to provoke this letter, as a vindication of his course. And the most prominent part of this defence seemed to depend upon his making the people believe that the opinion of the jury was not correct, in pronouncing me sane. And he used this slander as the backbone of his argument, to prove that I was hopelessly insane, there having been no change either for the better or worse, while under his care, and that I left the institution just as I entered it, incurably insane. I think I cannot answer this slander more summarily and concisely, than by quoting, verbatim, Mr. Stephen R. Moore's, my attorney, reply to this letter, as it was published at the time in the public papers. MR. MOORE'S REPLY TO DR. MCFARLAND'S SLANDER. "Your letter starts out with a statement of an error, which I believe, to be wholly unintentional, and results from placing too much confidence in the statements of your friend, Rev. Theophilus Packard. You say, "Mrs. P., as one of the results of a strongly inherited predisposition, (her mother having been for a long period of her life insane,) had an attack of insanity previous to her marriage." Such are _not_ the facts. Neither the mother, nor any blood relations of Mrs. Packard, were ever suspected or charged with being insane. And it is a slander of one of the best and most pious mothers of New England, and her ancestry, to charge her and them with insanity; and could have emanated only from the heart of the pious ----, who would incarcerate the companion of his bosom for three years, with gibbering idiots and raving maniacs. "Nor had Mrs. Packard an attack of insanity before her marriage. The pious Packard has fabricated this story to order, from the circumstance, that when a young lady, Mrs. Packard had a severe attack of brain fever, and under which fever she was for a time delirious, and no further, has this a semblance of truth." This is the simple truth, which all my relatives are ready, and many of them very anxious to certify to; but the limits of this pamphlet will not admit any more space in answer to this slander. SECOND REPORT. "Mrs. Packard is very adroit in concealing her insanity." This report originated from the same source, and I will answer it in the words of the same writer, as found in his printed reply: "You say, 'Mrs. Packard is very adroit in concealing her insanity.' She has indeed been most adroit in this concealment, when her family physician of seven year's acquaintance, and all her friends and neighbors, with whom she visited daily, and her children, and the domestics, and lastly, the court and jury had not, and could not, discover any traces of insanity; and the only persons who say they find her insane, were Dr. McFarland, your pious friend Rev. Packard, his sister, and her husband, one deacon of the church, and a fascinating young convert--all members of his church--and a doctor. These witnesses each and every one swore upon the stand, "That it was evidence of insanity in Mrs. Packard, because she wished to leave the Presbyterian church, and join the Methodist." I quote the reasons given by these "Lambs of the Church," that you may know what weight their opinions are entitled to. The physician, upon whose certificate you say you held Mrs. Packard, swore upon the trial, that three-fourths of the religious community were just as insane as Mrs. Packard." THIRD REPORT. "All her family friends, almost without exception, sustain Mr. Packard in his course." Not one of my family friends ever _intelligently_ sustained Mr. Packard in his course. But they did sustain him ignorantly and undesignedly, for a time, while his tissue of lies held them back from investigating the merits of the case for themselves. But as soon as they did know, they became my firm friends and defenders, and Mr. Packard's private foes and public adversaries. I do not mean by this, that they manifest any revengeful feelings towards him, but simply a God-like resentment of his inhuman course towards me. All my relatives, without exception, who have heard my own statement from my own lips, now unite in this one opinion, that Mr. Packard has had no right nor occasion for putting me into an insane asylum. But fidelity to the truth requires me to say in this connection, that among my family relatives, are three families of Congregational ministers--that each of these families have refused me any hearing, so that they are still in league with, and defenders of, Mr. Packard. All I have to say for them is, "May the Lord forgive them, for they know not what they do." But it may be urged that the published certificates of her friends contradict this statement. This is not the case. Those certificates which have appeared in print since my return to my friends, all bear date to the time they were given previous to my return. And in this connection I feel conscientiously bound, in defence of my kindred, to say, that some of these certificates are mere forgeries in its strict sense; that is, they were drafted by Mr. Packard, himself, and most adroitly urged upon the individual whose signature he desired to obtain, and thus his logic, being based in a falsehood, which was used as a truth, and received as such, they are thus made to certify to what was not the real truth. My minor children's certificates are the mere echoes of their father's will and dictation. He has tried to buy the signatures of my two oldest sons, now of age, in Chicago, by offering them some of his abundant surplus clothing, from his missionary boxes, if they would only certify that their mother was insane. But these noble sons have too much moral rectitude to sell their consciences for clothes or gold. Instead of being abettors in their father's crimes, they have, and do still, maintain a most firm stand in defence of me. And for this manly act of filial piety towards me, their father has disinherited both of them, as he has me, from our family rights. Another thing, it is no new business for Mr. Packard to practice forgery. This assertion I can prove by his own confession. Not long before I was exiled from my home, he said to me one day, "I have just signed a note, which, if brought against me in law, would place me in a penitentiary; but I think I am safe, as I have fixed it." Again, Mr. Packard sent a great many forged letters to the Superintendent of the Asylum, while I was there, professing to come from a different source, wherein the writer urged, very strongly, the necessity of keeping me in an asylum, and begging him, most pathetically, to _keep me there_, not only for Mr. Packard's sake, but also for his children's sake, and community's sake, and, lastly, for the cause of Christ's sake! Dr. McFarland used to come to me for an explanation of this singular phenomenon. I would promptly tell him the letters are a forgery--the very face of them so speaks--for who would think of a minister in Ohio writing, self-moved, to a Superintendent in Illinois, begging of him to keep another man's wife in his Asylum! Either these letters were exact copies of Mr. Packard's, with the exception of the signature, or, they were entirely drafted from Mr. Packard's statement, and made so as to be an echo of Mr. Packard's wishes, but seeming to be a self-moved act of the writer's own mind and wishes. O, how fruitful is a depraved heart in devising lies, and masking them with the semblance of truth! and how many lies it takes to defend one! The lie he was thus trying to defend was, that I was insane, when I was not, and all this gigantic frame work of certificates and testimony became necessary as props to sustain it. I now give the testimony of my lawyer, who, after witnessing the revelations of the court room, thus alludes to this subject in his reply to Dr. McFarland's letter. "The certificates produced, fully attesting her insanity, before she was admitted, I suspect were forgeries of the pious Packard, altered to suit the occasion, and your too generous disposition to rely upon the statements made to you, was taken advantage of again, and they were imposed upon you, without the critical examination their importance demanded." FOURTH REPORT. "Mrs. Packard is alienated from her kindred, and even her own father and husband." I will confess I am alienated from _such_ manifestations of love as they showed me while in the Asylum; that is, from none at all. Not one, except my adopted sister, and my two sons at Chicago, ever made an attempt to visit me, or even wrote me scarcely one line. I do say, this was rather cold sympathy for one passing through such scenes as I was called to pass through. This fact was not only an enigma to myself, but it was so to all my Asylum friends, and even to the Doctor himself, if I can believe his own words. He would often say to me, "Mrs. Packard, who are your friends? have you any in the wide world? If so, why do they not look after you?" I used at first to say, I have many friends, and no enemies, except Mr. Packard, that I know of in the whole world. All my relatives love me tenderly. But after watching in vain for three years of prison life for them to show me some proof of it, I changed my song, and owned up, I had no friends worth the name; for my adversity had tried or tested their love, and it had all been found wanting--entirely wanting. So it looked to me from _that_ stand point. And I still insist upon it, this was a sane conclusion. For what is that love worth, that can't defend its friend in adversity? I say it is not worth the name of love. But it must be remembered, I saw then only one side of the picture. The other side I could not see until I saw my friends, and looked from _their_ standpoint. Then I found that the many letters I had written had never reached them; for Mr. Packard had instructed Dr. McFarland, and had insisted upon it, that not a single letter should be sent to any of my friends, not even my father, or sons, without reading it himself, and then sending it to him to read, before sending it; and so he must do with all the letters sent to me; and the result was, scarcely none were delivered to me, nor were mine sent to my friends. But instead of this, a brisk correspondence was kept up between Dr. McFarland and Mr. Packard, who both agreed in representing me as very insane; so much so, that my good demanded that I be kept entirely aloof from their sympathy. I have seen and read these letters, and now, instead of blaming my friends for regarding me as insane, I don't see how they could have come to any other conclusion. From _their_ standpoint, they acted judiciously, and kindly. They were anxious to aid the afflicted minister to the extent they could, in restoring reason to his poor afflicted, maniac wife, and they thought the Superintendent understood his business, and with him, and her kind husband to superintend, they considered I must be well cared for. And again, how could they imagine, that a man would wish to have the reputation of having an insane wife, when he had not? And could the good and kind Mr. Packard neglect even his poor afflicted wife? No, she must be in good hands, under the best of care, and it is her husband on whom we must lavish our warmest, tenderest, sympathies! Yes, so it was; Mr. Packard managed so as to get all the sympathy, and his wife none at all. He got all the money, and she not a cent. He got abundant tokens of regard, and she none at all. In short, he had buried me in a living tomb, with his own hands, and he meant there should be no resurrection. And the statement that I was alienated from my friends when I was entered, is utterly _false_. No one ever loved their kindred or friends with a warmer or a purer love than I ever loved mine. Neither was I alienated even from Mr. Packard, when he entered me. As proof of this, I will describe my feelings as indicated by my conduct, at the time he forced me from my dear ones at home. After the physicians had examined me as described in my Introduction, and Mr. Packard had ordered me to dress for a ride to the Asylum, I asked the privilege of having my room vacated, so that I might bathe myself, as usual, before dressing; intending myself to then secure about my person, _secretly_, my Bible-class documents, as all that I had said in defence of my opinions was in writing, never having trusted myself to an extemporaneous discussion of my new ideas, lest I be misrepresented. And I then felt that these documents, alone, were my only _defence_, being denied all and every form of justice, by any trial. I therefore resorted to this innocent stratagem, as it seemed to me, to secure them; that is, I did not tell Mr. Packard that I had any other reason for being left alone in my room than the one I gave him. But he refused me this request, giving as his only reason, that he did not think it best to leave me alone. He doubtless had the same documents in view, intending thus to keep me from getting them, for he ordered Miss Rumsey to be my lady's maid, as a spy upon my actions. I dared not attempt to get them with her eye upon me, lest she take them from me, or report me to Mr. Packard, as directed by him so to do, as I believed. I resolved upon one more stratagem as my last and only hope, and this was, to ask to be left alone long enough to pray in my own room once more, before being forced from it into my prison. When, therefore, I was all dressed, ready to be kidnapped, I asked to see my dear little ones, to bestow upon them my parting kiss. But was denied this favor also! "Then," said I, "can I bear such trials as these without God's help? And is not this help given us in answer to our own prayers? May I not be allowed, husband, to ask this favor of God _alone_ in my room, before being thus exiled from it?" "No," said he, "I don't think it is best to let you be alone in your room." "O, husband," said I, "you have allowed me no chance for my secret devotions this morning, can't I be allowed this one last request?" "No; I think it is not best; but you may pray with your door open." I then kneeled down in my room, with my bonnet and shawl on, and in the presence and hearing of the sheriff, and the conspiracy I offered up my petition, in an audible voice, wherein I laid my burdens frankly, fully, before my sympathizing Saviour, as I would have done in secret. And this Miss Rumsey reports, that the burden of this prayer was for _Mr. Packard's forgiveness_. She says, I first told God what a great crime Mr. Packard was committing in treating his wife as he was doing, and what great guilt he was thus treasuring up to himself, by this cruel and unjust treatment of the woman he had sworn before God to protect; and what an awful doom he must surely meet with, under the government of a just God, for these his great sins against me, and so forth; and then added, that if it was possible for God to allow me to bear his punishment _for him_, that he would allow me so to do, if in that way, his soul might be redeemed from the curse which must now rest upon it. In short, the burden of my prayer was, that I might be his redeemer, if my sufferings could in any possible way atone for his sins. Such a petition was, of course looked upon by this conspiracy, as evidence of my insanity, and has been used by them, as such. But I cannot but feel that in God's sight, it was regarded as an echo of Christ's dying prayer for his murderers, prompted by the same spirit of gospel forgiveness of enemies. In fact, if I know anything of my own heart, I do know that it then cherished not a single feeling of resentment towards him. But my soul was burdened by a sense of his great guilt, and only desired his pardon and forgiveness. As another proof of this assertion, I will describe our parting interview at the Asylum. He had stayed two nights at the Asylum, occupying the stately guest chamber and bed alone, while I was being locked up in my narrow cell, on my narrow single bed, with the howling maniacs around for my serenaders. He sat at the sumptuous table of the Superintendent, sharing in all its costly viands and dainties, and entertained by its refined guests, for his company and companions. While I, his companion, ever accustomed to the most polished and best society, was sitting at our long table, furnished with nothing but bread and meat; and my companions, some of them, gibbering maniacs, whose presence and society must be purchased only at the risk of life or physical injury. He could walk about the city at his pleasure, or be escorted in the sumptuous carriage, while I could only circumambulate the Asylum yard, under the vigilant eye of my keeper. O, it did seem, these two days and nights, as though my affectionate heart would break with my over much sorrow. No sweet darling babe to hug to my heart's embrace--no child arms to encircle my neck and bestow on my cheek its hearty "good night" kiss. No--nothing, nothing, in my surroundings, to cheer and soothe my tempest tossed soul. In this sorrowful state of mind Mr. Packard found me in my cell, and asked me if I should not like an interview with him, in the parlor, as he was about to leave me soon. "Yes," said I, "I should be very glad of one," and taking his arm, I walked out of the hall. As I passed on, one of the attendants remarked: "See, she is not alienated from her husband, see how kindly she takes his arm!" When we reached the parlor, I seated myself by his side, on the sofa, and gave full vent to my long pent up emotions and feelings. "O, husband!" said I, "how can you leave me in such a place? It seems as though I cannot bear it. And my darling babe! O, what will become of him! How can he live without his mother! And how can I live without my babe, and my children! O, do, do, I beg of you, take me home. You know I have _always_ been a true and loving wife to you, and how can you treat me so?" My entreaties and prayers were accompanied with my tears, which is a very uncommon manifestation with me; and while I talked, I arose from my seat and walked the room, with my handkerchief to my eyes; for it seemed as if my heart would break. Getting no response whatever from him, I took down my hand to see why he did not speak to me when--what did I see! my husband sound asleep, nodding his head! "O, husband!" said I, "can you sleep while your wife is in such agony?" Said he, "I can't keep awake; I have been broke of my rest." "I see," said I, "there is no use in trying to move your feelings, we may as well say our 'good bye' now as ever." And as I bestowed upon him the parting kiss, I said, "May our next meeting be in the spirit land! And if there you find yourself in a sphere of lower development than myself; and you have any desire to rise to a higher plane, remember, there is one spirit in the universe, who will leave any height of enjoyment, and descend to any depth of misery, to raise you to a higher plane of happiness, if it is possible so to do. And that spirit is the spirit of your Elizabeth. Farewell! husband, forever!!" This is the exact picture. Now see what use he makes of it. In his letter to my father, he says: "She did not like to be left. I pitied her." (Pitied her! How was his sympathy manifested?) "It was an affecting scene. But she was very mad at me, and tried to wound my feelings every way. She would send no word to the children, and would not _pleasantly_ bid me good bye." Pleasantly was underlined, to make it appear, that, because I did not pleasantly bid him good bye, under these circumstances, I felt hard towards him, and this was a proof of my alienation, and is as strong a one as it is possible for him to bring in support of his charge. Let the tender hearted mother draw her own inferences--man cannot know what I then suffered. And may a kind God grant, that no other mother may ever know what I then felt, in her own sad experience! The truth is, I never was alienated from my husband, until he gave me just _cause_ for this alienation, and not until he put me into the Asylum, and then it took four long months more, of the most intense spiritual torture, to develop in my loving, forgiving heart, one feeling of hate towards him. As proof of this, I will here insert two letters I wrote him several weeks after my incarceration. COPY OF THE LETTER. _Jacksonville, July 14th, 1860, Sabbath, P. M._ MY DEAR CHILDREN AND HUSBAND: Your letter of July eleventh arrived yesterday. It was the third I have received from home, and, indeed, is all I have received from any source since I came to the Asylum. And the one you received from me is all I have sent from here. I thank you for writing so often. I shall be happy to answer all letters from you, if you desire it, as I see you do, by your last. I like anything to relieve the monotony of my daily routine. * * * Dr. McFarland told me, after I had been here one week, "I do not think you will remain but a few days longer." I suspect he found me an unfit subject, upon a personal acquaintance with me. Still, unfit as I consider myself, to be numbered amongst the insane, I am so numbered at my husband's request. And for his sake, I must, until my death, carry about with me, "This thorn in the flesh--this messenger of Satan to buffet me," and probably, to keep me humble, and in my proper place. God grant it may be a sanctified affliction to me! I do try to bear it, uncomplainingly, and submissively. But, O! 'tis hard--'tis very hard. O, may you never know what it is to be numbered with the insane, within the walls of an insane asylum, not knowing as your friends will ever regard you as a fit companion or associate for them again, outside its walls. O, the bitter, bitter cup, I have been called to drink, even to its very dregs, just because I choose to obey God rather than man! But, as my Saviour said, "the cup which my Father hath given me, shall I not drink it?" O, yes, for thy sake, kind Saviour, I rejoice, that I am counted worthy to suffer the loss of all things, for thy sake. And thou hast made me worthy, by thine own free and sovereign grace. Yes, dear Jesus, I believe that I have learned the lesson thou hast thus taught me, that "in whatsoever state I am, therewith to be content." Yes, content, to sit at a table with twenty-four maniacs, three times a day, and eat my bread and meat, and drink my milk and water, while I remember, almost each time, how many vegetables and berries are upon my own dear table at home, and I not allowed to taste, because my husband counts me unworthy, or unfit, or unsafe, to be an inmate at his fireside and table. I eat, and retire, and pray God to keep me from complaining. My fare does not agree with my health, and so I have begged of our kind attendants, to furnish me some poor, shriveled wheat, to keep in my room, to eat raw, to keep my bowels open. This morning, after asking a blessing at the table, I retired to my own room, to eat my raw, hard wheat alone, with my pine-apple to soften it, or rather to moisten it going down. Yes, the berries I toiled so very hard to get for our health and comfort, I only must be deprived of them at my husband's appointment. The past, O, the sad past! together with the present, and the unknown future. O, let oblivion cover the past--let no record of my wrongs be ever made, for posterity to see, for your sake, my own lawful husband. O, my dear precious children! how I pity you! My heart aches for you. But I can do nothing for you. I am your father's victim, and cannot escape from my prison to help you, even you--my own flesh and blood--my heart's treasures, my jewels, my honor and rejoicing. For I do believe you remain true to the mother who loves you so tenderly, that she would die to save you from the disgrace she has brought upon your fair names, by being stigmatised as the children of an insane mother, whom your father said he regarded as unsafe, as an inmate of your own quiet home, and, therefore, has confined me within these awful enclosures. O, may you never know what it is to go to sleep within the hearing of such unearthly sounds, as can be heard here almost at any hour of the night! I can sleep in the hearing of it, for "so he giveth his beloved sleep." O, children dear, do not be discouraged at my sad fate, for well doing. But be assured that, although you may suffer in this world for it, you may be sure your reward will come in the next. "For, if we suffer with him, we shall also reign with him." O, do commit your souls to him in well-doing for my sake, if you dare not for your own sake, for I do entreat you to let me be with you in heaven, if your father prevents it on earth. I may not have much longer to suffer here on earth. Several in our ward are now sick in bed, and I give them more of my fruit than I eat myself, hoping that, when my turn comes to be sick, some one may thus serve me. But if not, I can bear it, perhaps better than they can, to be without any solace or comfort in sickness here, such as a friend needs. I have nothing to live for now, but to serve you, as I know of. But you can get along without me, can't you? Pa will take care of you. Do be kind to him, and make him as happy as possible. Yes, honor your father, if he has brought such dishonor upon your name and reputation. I will devote my energies to these distressed objects around me, instead of attending to your wants, as a mother should be allowed to do, at least, so long as she could do so, as well as I could, and did, when I was taken from you. I know I could not, for lack of physical strength, do as much for you as I once could, still I was willing, and did do all I could for you. Indeed, I find I am almost worn out by my sufferings. I am very weak and feeble. Still, I make no complaints, for I am so much better off than many others here. Do bring my poor lifeless body home when my spirit, which troubled your father so much, has fled to Jesus' arms for protection, and lay me by my asparagus bed, so you can visit my grave, and weep over my sad fate in this world. I do not wish to be buried in Shelburne, but let me rise where I suffered so much for Christ's sake. O, do not, do not, be weary in well doing, for, did I not hope to meet you in heaven, it seems as though my heart would break! I am useful here, I hope. Some of our patients say, it is a paradise here now, compared with what it was before I came. The authorities assure me, that I am doing a great work here, for the institution. When I had the prospect of returning home in a few days, as I told you, I begged with tears not to send me, as my husband would have the same reason for sending me back as he had for bringing me here. For the will of God is still my law and guide, so I cannot do wrong, and until I become insane, I can take no other guide for my conduct. Here I can exercise my rights of conscience, without offending any one. Yes, I am getting friends, from high and low, rich and poor. I am loved, and respected here by all that know me. I am their confident, their counsellor, their bosom friend. O, how I love this new circle of friends! There are several patients here, who are no more insane than I am; but are put here, like me, to get rid of them. But here we can work for God, and here die for him. Love to all my children, and yourself also. I thank you for the fruit, and mirror. It came safe. I had bought one before. I am at rest--and my mind enjoys that peace the world cannot give or take away. When I am gone to rest, rejoice for me. Weep not for me. I am, and must be forever happy in God's love. The questions are often asked me, "Why were you sent here? you are not insane. Did you injure any one? Did you give up, and neglect your duties? Did you tear your clothes, and destroy your things? What did you do that made your friends treat such a good woman so?" Let silence be my only reply, for your sake, my husband. Now, my husband, do repent, and secure forgiveness from God, and me, before it is too late. Indeed, I pity you; my soul weeps on your account. But God is merciful, and his mercies are great above the heavens. Therefore, do not despair; by speedy repentance secure gospel peace to your tempest-tossed soul. So prays your loving wife, ELIZABETH. EXTRACT FROM ANOTHER LETTER. MY DEAR HUSBAND. I thank you kindly for writing me, and thus relieving my burdened heart, by assuring me that my dear children are alive and well. I have been sadly burdened at the thought of what they are called to suffer on their mother's account. Yes, the mother's heart has wept for them every moment: yet my heart has rejoiced in God my Savior, for to suffer as well as to do His holy will, is my highest delight, my chief joy. Yes, my dear husband, I can say in all sincerity and honesty, "The will of the Lord be done." I can still by his abundant grace utter the true emotions of my full heart, in the words of my favorite verse, which you all know has been my solace in times of doubt, perplexity and trial. It is this: "With cheerful feet the path of duty run, God nothing does, nor suffers to be done, But what thou wouldst thyself, couldst thou but see, Through all events of things as well as He." O, the consolation the tempest tossed spirit feels in the thought that our Father is at the helm, and that no real harm can befall us with such a pilot to direct our course. And let me assure you all for your encouragement, that my own experience bears honest, practical testimony that great peace they have who make God their shield, their trust, their refuge; and I can even add that this Insane Asylum has been to me the gate to Heaven. * * * By Dr. McFarland's leave, I have established family worship in our hall; and we never have less than twelve, and sometimes eighteen or more, quite quiet and orderly, while I read and explain a chapter--then join in singing a hymn--then kneeling down, I offer a prayer, as long as I usually do at our own family altar. I also implore the blessing of God at the table at every meal, while twenty-nine maniacs, as we are called, silently join with me. Our conversation, for the most part, is intelligent, and to me most instructive. At first, quite a spirit of discord seemed to pervade our circle. But now it is quiet and even cheerful. I find that we as individuals hold the happiness of others to a great degree in our own keeping, and that "A merry heart doeth good like medicine." * * * If God so permit, I should rejoice to join the dear circle at home, and serve them to the best of my ability. "Nevertheless, not as I will, but as Thou wilt." I thank you, husband, for your kindness, both past and prospective. Do forgive me, wherein I have wronged you, or needlessly injured your feelings, and believe me yours, ELIZABETH. P. S. Tell the dear children to trust God, by doing right. I now do frankly own, I am fully alienated from him, in his present detestable character, as developed towards me, his lawful wife. And I claim that it is not consistent with the laws of God's moral government, for a fully sane being to feel otherwise. But it is not so with my kindred, and other friends. I am not alienated from them, for I have had no just and adequate cause for alienation. They erred ignorantly, not willfully. They were willing to know the truth; they were convicted, and are now converted to the truth. They have confessed their sin against me in thus neglecting me, and have asked my forgiveness. I have most freely forgiven them, and such penitents are fully restored to my full fellowship and confidence. To prove they are penitent, one confession will serve as a fair representation of the whole. I give it in the writer's own words, verbatim, from the letter now before me. "We are all glad you have been to visit us, and we regret we have not tried to do more for _you_, in times past. I am grieved that you have been left to suffer so much _alone_--had we known, I think something would have been done for _you_. Forgive us, won't you, for our cruel neglect?" Yes, I do rejoice to forgive them, for Christ allows me to forgive the penitent transgressor. But he does not allow me to do better than he does--to forgive the impenitent transgressor. And I do not; but as I have before said, I stand ready with my forgiveness in my heart to extend it to him, most freely, on this gospel condition of repentance--_practical_ repentance. FIFTH REPORT. "Dr. McFarland, the Superintendent of the Asylum, says she is insane; and he ought to _know_." Yes, he ought to know. But, in my opinion, Dr. McFarland, does not know a sane from an insane person; or else, why does he keep so many in that Asylum, as sane as himself? And mine is not the first case a court and jury differed from him in opinion on this subject. He has been so long conversant with the insane, that he has become a perfect monomaniac on insanity and in his treatment of the insane. I never saw such inhumanity, and cruelty, and barbarity, practiced towards the innocent and helpless as he sanctions and allows in that Asylum. I could write a large volume in confirmation of this assertion, made up of scenes I myself witnessed, during my three years' incarceration in that terrible place. The material is all on hand for such a book, since I kept a secret journal of daily events, just as they occurred, so that my memory is not my only laboratory of such truths. And in arranging this matter for a book, I intend to turn Jacksonville Asylum inside out. That is, I shall report that Asylum from the standpoint of a patient, and if this book don't prove my assertion that Dr. McFarland is a monomaniac, I am sure it will prove him to be something worse. But I claim to defend his heart from the charge of villainy, and his intellect from imbecility, for I have often said of him, "Dr. McFarland is the _greatest_ man I ever saw, and he would be the _best_ if he wasn't _so bad_!" But this is not the place to make a defence for Dr. McFarland. Let him stand where his own actions put him, for that is the only proper place for either superintendent or patient to stand upon. But I will own, God made him fit for one of his great resplendent luminaries; but Satan has marred this noble orb, so that now it has some very dark spots on its disk, such as his patients can behold without the aid of a telescope! Yes, as a general thing, his patients are not allowed to behold anything else but these dark spots, while the public are allowed to see nothing except the splendors of this luminary. And when my telescopic book is in print, the public may look, or not look, at the scenes behind the curtain, just as they please. The exact scenes are now fully daguerreotyped on my brain and heart both, as well as on my manuscript journal. In this volume I am only allowed to report what relates to myself alone. Therefore I have but little to say; for as it respects his treatment of me, individually, I regard him as a practical penitent, and on this basis, I have really forgiven him. And God only knows what a multitude of sins this man's repentance has covered! And my Christianity forbids my exposing the sins of a practical penitent, after having practically forgiven him. As proof of his penitence, I bring this fact, that it was under his superintendence, and by his consent alone, that I was permitted to spend the last nine months of my prison life in writing "The Great Drama." This book was commenced as an act of self-defence from the charge of insanity, and this man was the first person in America that ever before allowed me any right of self-defence. And this act of practical manliness on his part, awakened, as its response, my full and hearty forgiveness of all the wrongs he had hitherto heaped upon me; and these wrongs had not been "like angels visits, few and far between." But I had, in reality, much to forgive. At least, so thought my personal friends at the Asylum, if their words echoed their real feelings. Their feelings on this subject were not unfrequently uttered in very strong language like the following: "If Mrs. Packard can forgive Dr. McFarland all the wrongs and abuses he has heaped upon her she must be more than human." And I now have before me a letter from one who had been for several years an officer in that institution, from which I will make an extract, as it corroborates this point. She says, "How the mind wanders back to those dark hours. O, that hated letter! once presented you by a ----, who delighted to torture those he could not subdue. Our hearts did pity you, Mrs. Packard. Mrs. Tenny, (now the wife of the then assistant physician, but my attendant at the time referred to,) and myself often said, everything was done that could be, to annihilate and dethrone your reason. Poor child! They had all fled--none to watch one hour! All I have to say is, if there can be found man or woman who could endure what you did in that three years, and not become a raving maniac, they should be canonized." Yes, God, God alone, saved me from the awful vortex Mr. Packard and Dr. McFarland had prepared for me--the vortex of oblivion--God has delivered me from them who were stronger than I, and to his cause, the cause of oppressed humanity, for which I there suffered so much in its defence, I do now consecrate my spared intellect, and reason, and moral power. This "Great Drama," written there, is my great battery, which, in God's providence, I hope sometime to get rich enough to publish; and it is to the magnanimity of Dr. McFarland alone, under God, that my thanks are due, for letting me write this book. He dictated none of it. He allowed me perfect spiritual liberty, in penning this voluminous literary production of seven hundred pages; and if ever there was a book written wholly untrammelled by human dictation, this is the book. But as I said, his magnanimity, even at the eleventh hour, has, so far as I am concerned, secured my forgiveness. But he has been, and I fear still is, a great sinner against others, also; for, as I have often said, it is my candid opinion, that there were fifty in that house, as patients, who have no more right to be there than the Doctor himself. Judging them from their own actions and words, there is no more evidence of insanity in them, than in Dr. McFarland's words and actions. He certainly has no scruples about keeping perfectly sane persons as patients. At first, this was to me an enigma I could not possible solve. But now I can on the supposition that he don't know a sane from an insane person, because he has become a monomaniac on this subject, just as Mr. Packard has on the woman question. The Doctor's insane dogmas are, first: all people are insane on some points; second: insane persons have no rights that others are bound to respect. He has never refused any one's application on the ground of their not being insane, to my knowledge, but he has admitted many whom he admitted were not near as insane as the friends who brought them were. He can see insanity in any one where it will be for his interest to see it. And let him put any one through the insane treatment he subjects his patients to, and they are almost certain to manifest some resentment, before the process is complete. And this natural resentment which his process evokes, is what he calls their insanity, or rather evidence of it. I saw the operation of his nefarious system before I had been there long, and I determined to stand proof against it, by restraining all manifestations of my resentful feelings, which his insults to me were designed to develop. And this is his grand failure in my case. He has no capital to make out his charge upon, so far as my own actions are concerned. No one ever saw me exhibit the least angry, resentful feelings. I say that to God's grace alone is this result due. I maintain, his treatment of his patients is barbarous and criminal in many cases; therefore he shows insanity in his conduct towards them. Again, he does not always tell the truth about his patients, nor to his patients. And this is another evidence of his insanity. I do say, lying is insanity; and if I can ever be proved to be a liar, by my own words or actions, I do insist upon it I merit the charge put upon me of monomania, or insanity. But, speaking the truth, and nothing but the truth, is not lying, even if people do not believe my assertions. For the truth will stand without testimony, and in spite of all contradiction. And when one has once been proved to have lied, they have no claims on us to be believed, when they do speak the truth. Were I called to prove my assertion that the Doctor misrepresents, I could do so, by his own letters to my husband, and my father, now in my possession, and by letters Mr. Field had from him while I was in the Asylum. For example, why did he write to Mr. Field that I "was a dangerous patient, not safe to live in any private family," and then refuse to answer direct questions calling for evidence in proof on this point, and give as his reason, that he did not deem it his duty to answer impertinent questions about his patients? Simply because the assertion was a lie, and had nothing to support or defend it, in facts, as they existed. These letters abound in misrepresentations and falsehoods respecting me, and it is no wonder my friends regarded me as insane, on these representations from the Superintendent of a State Asylum. I have every reason to think Dr. McFarland believes, in his heart, that I am entirely sane; but policy and self-interest has prompted him to deny it in words, hoping thus to destroy the influence of the sad truths I utter respecting the character of that institution. A very intelligent employee in that institution, and one who had, by her position, peculiar advantages for knowing the real state of feeling towards me in that institution, once said to me, "Mrs. Packard, I can assure you, that there is not a single individual in this house who believes you are an insane person; and as for Dr. McFarland he _knows_ you are not, whatever he may choose to say upon the subject." One thing is certain, his actions contradict his words, in this matter. Would an insane person be employed by him to carry his patients to ride, and drive the team with a whole load of crazy women, with no one to help take care of them and the team but herself? And yet Dr. McFarland employed me to do this very thing fourteen times; and I always came back safely with them, and never abused my liberty, by dropping a letter into the post-office, or any thing of the kind, and never abused the confidence reposed in me in any manner. Would he give a crazy woman money to go to the city, and make purchases for herself? And yet he did so by me. Would a crazy woman be employed to make purchases for the house, and use as a reason for employing her, that her judgment was superior to any in the house? And yet this is true of me. Would a crazy woman be employed to cut, fit and make his wife's and daughter's best dresses, instead of a dressmaker, because she could do them better, in their opinion, than any dressmaker they could employ? And yet I was thus employed for several weeks, and for this reason. And would his wife have had her tailoress consult my judgment, before cutting her boy's clothes, and give as her reason, that she preferred my judgment and planning before her own, if I was an insane person? And yet she did. Would the officials send their employees to me for help, in executing orders which exceeded the capacity of their own judgment to perform, if they considered my reason and judgment as impaired by insanity? And yet this was often the case. Would the remark be often made by the employees in that institution, that "Mrs. Packard was better fitted to be the matron of the institution than any one under that roof," if I had been treated and regarded as an insane person by the officials? And yet this remark was common there. No. Dr. McFarland did not treat me as an insane person, until I had been there four months, when he suddenly changed his programme entirely, by treating me like an insane person, and ordering the employees to do so to, which order he could never enforce, except in one single instance, and this attendant soon after became a lunatic and a tenant of the poor house. My attendants said they should not treat me as they did the other patients, if the Doctor did order it. The reason for this change in the Doctor's treatment, was not because of any change in my conduct or deportment in any respect, but because I offended him, by a reproof I gave him for his abuse of his patients, accompanied by the threat to expose him unless he repented. I gave this reproof in writing, and retained a copy myself, by hiding it behind my mirror, between it and the board-back. Several thousand copies of which are now in circulation. After this event, I was closeted among the maniacs, and did not step my foot upon the ground again, until I was discharged, two years and eight months afterwards. When he transferred me from the best ward to the worst ward, he ordered my attendants to treat me just as they did their other patients, except to not let me go out of the ward; although all the others could go to ride and walk, except myself. Had I not known how to practice the laws of health, this close confinement would doubtless have been fatal to my good health and strong nerves. But as it was, both are still retained in full vigor. My correspondence was henceforth put under the strictest censorship, and but few of my letters ever went farther than the Doctor's office, and most of the letters sent to me never came nearer me than his office. When I became satisfied of this, I stopped writing at all to any one, until I got an "Under Ground Express" established, through which my mail passed out, but not in. One incident I will here mention to show how strictly and vigilantly my correspondence with the world was watched. There was a patient in my ward to be discharged ere long, to go to her home near Manteno, and she offered to take anything to my children, if I chose to send anything by her. Confident I could not get a letter out through her, without being detected, I made my daughter some under waists, and embroidered them, for a present to her from her mother. On the inside of these bleached cotton double waists, I pencilled a note to her, for her and my own solace and comfort. I then gave these into the hands of this patient, and she took them and put them into her bosom saying, "The Doctor shall never see these." But just as she was leaving the house, the Doctor asked her, if she had any letter from Mrs. Packard to her children with her? She said she had not. He then asked be "Have you had anything from Mrs. Packard with you?" She said, "I have two embroidered waists, which Mrs. Packard wished me to carry to her daughter, as a present from her mother; but nothing else." "Let me see those waists," said he. She took them from her bosom and handed them to him. He saw the penciling. He read it, and ordered the waists to the laundry to be washed before sending them, so that no heart communications from the mother to the child, could go with them. I believe he sent them afterwards by Dr. Eddy. In regard to Dr. McFarland's individual guilt in relation to his treatment of me, justice to myself requires me to add, that I cherish no feelings of resentment towards him, and the worst wish my heart dictates towards him is, that he may repent, and become the "Model Man" his nobly developed capacities have fitted him to become; for he is, as I have said, the greatest man I ever saw, and he would be the best if he wasn't so bad! And the despotic treatment his patients receive under his government, is only the natural result of one of the fundamental laws of human nature, in its present undeveloped state; which is, that the history of our race for six thousand years demonstrates the fact, that absolute, unlimited power always tends towards despotism--or an usurpation and abuse of other's rights. Dr. McFarland has, in a _practical_ sense, a sovereignty delegated to him, by the insane laws, almost as absolute as the marital power, which the law delegates to the husband. All of the inalienable rights of his patients are as completely subject to his single will, in the practical operation of these laws, as are the rights of a married woman to the will of her husband. And these despotic superintendents and husbands in the exercise of this power, are no more guilty, in my opinion, than that power is which licenses this deleterious element. No Republican government ought to permit an absolute monarchy to be established under its jurisdiction. And when it is found to exist, it ought to be destroyed, forthwith. And where this licensed power is known to have culminated into a despotism, which is crushing humanity, really and practically, that government is guilty in this matter, so long as it tolerates this usurpation. Therefore, while the superintendents are guilty in abusing their power, I say that government which sustains oppression by its laws, is the first transgressor. Undoubtedly our insane asylums were originally designed and established, as humane institutions, and for a very humane and benevolent purpose; but, on their present basis, they really cover and shield many wrongs, which ought to be exposed and redressed. It is the _evils_ which cluster about these institutions, and these alone, which I am intent on bringing into public view, for the purpose of having them destroyed. All the good which inheres in these institutions and officers is just as precious as if not mixed with the alloy; therefore, in destroying the alloy, great care should be used not to tarnish or destroy the fine gold with it. As my case demonstrates, they are now sometimes used for inquisitional purposes, which certainly is a great perversion of their original intent. SIXTH REPORT. "Mrs. Packard's statements are incredible. And she uses such strong language in giving them expression, as demonstrates her still to be an insane woman." I acknowledge the fact, that truth _is_ stranger than fiction; and I also assert, that it is my candid opinion, that strong language is the only appropriate drapery some truths can be clothed in. For example, the only appropriate drapery to clothe a lie in, is the strong language of _lie_ or _liar_, not misrepresentation, a mistake, a slip of the tongue, a deception, an unintentional error, and so forth. And for unreasonable, and inhuman, and criminal acts, the appropriate drapery is, insane acts; and an usurpation of human rights and an abuse of power over the defenceless, is appropriately clothed by the term, Despotism. And one who defends his creed or party by improper and abusive means, is a Bigot. One who is impatient and unwilling to endure, and will not hear the utterance of opinions in conflict with his own, without persecution of his opponent, is Intolerant towards him; and this is an appropriate word to use in describing such manifestations. And here I will add, I do not write books merely to tickle the fancy, and lull the guilty conscience into a treacherous sleep, whose waking is death. Nor do I write to secure notoriety or popularity. But I do write to defend the cause of human rights; and these rights can never be vindicated, without these usurpations be exposed to public view, so that an appeal can be made to the public conscience, on the firm basis of unchangeable truth--the truth of facts as they do actually exist. I know there is a class, but I fondly hope they are the minority, who will resist this solid basis even--who would not believe the truth should Christ himself be its medium of utterance and defence. But shall I on this account withhold the truth, lest such cavilers reject it, and trample it under foot, and then turn and rend me with the stigma of insanity, because I told them the simple truth? By no means. For truth is not insanity; and though it may for a time be crushed to the earth, it shall rise again with renovated strength and power. Neither is strong and appropriate language insanity. But on the contrary, I maintain that strong language is the only suitable and appropriate drapery for a reformer to clothe his thoughts in, notwithstanding the very unsuitable and inappropriate stigma of Insanity which has always been the reformer's lot to bear for so doing in all past ages, as well as the present age. Even Christ himself bore this badge of a Reformer, simply because he uttered truths which conflicted with the established religion of the church of his day. And shall I repine because I am called insane for the same reason? It was the spirit of bigotry which led the intolerant Jews to stigmatize Christ as a madman, because he expressed opinions differing from their own. And it is this same spirit of bigotry which has been thus intolerant towards me. And it is my opinion that bigotry is the most implacable, unreasonable, unmerciful feeling that can possess the human soul. And it is my fervent prayer that the eyes of this government may be opened to see, that the laws do not now protect or shield any married woman from this same extreme manifestation of it, such as it has been my sad lot to endure, as the result of this legalized persecution. NOTE OF THANKS TO MY PATRONS. I deem it appropriate in this connection, to express the gratitude I feel for the kind, practical sympathy, and liberal patronage, which has been extended to me by the public, through the sale of my books. Had it not been for your generous patronage, my kind patrons, I, and the noble cause I represent, would have been crushed to the earth, so far as my influence was concerned. For with no law to shield me, and with no "greenbacks" to defend myself with, what could I have done to escape another imprisonment, either in some asylum or poorhouse? It has been, and still is, the verdict of public sentiment, which the circulation of these books has developed, that has hitherto shielded me from a second kidnapping. And this protection you have kindly secured to me by buying my books. I would willingly have given my books a gratuitous circulation to obtain this protection, if I could possibly have done so. But where could the $3000.00 I have paid out for the expense of printing and circulating these books have been obtained? No one could advance me money safely, so long as I was Mr. Packard's lawful wife, and I could not even get a divorce, without the means for prosecuting the suit. Indeed, it was your patronage alone, which could effectually help me on to a self-reliant platform--the platform of "greenback independence." I have never made any appeal to the charities of the public, neither can I do so, from principle. For so long as I retain as good health as it is my blessed privilege still to enjoy, I feel conscientiously bound to work for my living, instead of living on the toil of other. My strong and vigorous health is the only capital that I can call my own. All my other natural, inalienable rights, are entirely in the hands of my persecutor, and subject to his control. But while this capital holds good, I am not a suitable object of charity. I am prosecuting business on business principles, and I am subject to the same laws of success or failure as other business persons are. I intend, and hope to make my business lucrative and profitable, as well as philanthropic and benevolent. I maintain that I have no claims upon the charities of the public, while at the same time I maintain that I have a claim upon the sympathies of our government. It is our government, the man government of America, who have placed me in my deplorable condition; for I am just where their own laws place me, and render all other married women _liable_ to be placed in the same position. It is the "Common Law" which our government took from English laws which makes a nonentity of a married woman, whose existence is wholly subject to another, and whose identity is only recognized through another. In short, the wife is dead, while her husband lives, as to any legal existence. And where the Common Law is not modified, or set aside by the Statute Laws, this worst form of English despotism is copied as a model law for our American people! Yes, I feel that I have a just claim upon the sympathies of our government. Therefore, in selling my books, I have almost entirely confined my application to the men, not the women, for the men alone constitute the American government. And my patrons have responded to my claims upon their sympathy, in a most generous, and praiseworthy manner. Yea, so almost universally have I met with the sympathy of those gentlemen that I have freely conversed with on this subject, that I cherish the firm conviction, that our whole enlightened government would "en masse," espouse the principles I defend, and grant all, and even more than I ask for married woman, could they but see the subject in the light those now do, whom I have conversed with on this subject. I am fully satisfied that all that our manly government needs to induce them to change this "Common Law" in relation to woman is, only to know what this law is, and how cruelly it subjects the women in its practical application. For man is made, and constituted by God himself, to be the protector of woman. And when he is true to this his God given nature, he is her protector. And all true men who have not perverted or depraved their God-like natures, will, and do, as instinctively protect their own wives, as they do themselves. And the wives of such men do not need any other law, than this law of manliness, to protect them or their interests. But taking the human race as they now are, we find some exceptions to this general rule. And it is for these exceptions that the law is needed, and not for the great masses. Just as the laws against crimes are made for the criminals, not for the masses of society, for they do not need them; they are a law unto themselves, having their own consciences for their Judges and Jurors. I see no candid, just reason why usurpation, and injustice, and oppression, should not be legislated against, in this form, as well as any other. Developed, refined, sensitive woman, is as capable of feeling wrongs as any other human being. And why should she not be legally protected from them as well as a man? My confidence in this God-like principle of manliness is almost unbounded. Therefore I feel that a hint is all that is needed, to arouse this latent principle of our government into prompt and efficient action, that of extending legal protection to subjected married woman. There is one word I will here say to my patrons, who have the first installment of my "Great Drama" in their possession, that you have doubtless found many things in that book which you cannot now understand, and are therefore liable to misinterpret and misapprehend my real meaning. I therefore beg of you not to judge me harshly at present, but please suspend your judgment until this allegory is published entire, and then you will be better prepared to pass judgment upon it. Supposing Bunyan's allegory of his Christian pilgrim had isolated parts of it published, separate from the whole, and we knew nothing about the rest, should we not be liable to misinterpret his real meaning? Another thing, I ask you to bear in mind, this book was written when my mind was at its culminating point of spiritual or mental torture, as it were, and this may serve in your mind as an excuse, for what may seem to you, as extravagant expressions; while to me, they were only the simple truth as I experienced it. No one can judge of these feelings correctly, until they have been in my exact place and position; and since this is an impossibility, you have a noble opportunity for the exercise of that charity towards me which you would like to have extended to yourselves in exchange of situations. A person under extreme physical torture, gives utterance to strong expressions, indicating extreme anguish. Have we, on this account, any reason or right to call him insane? So a person in extreme spiritual or mental agony, has a right to express his feelings in language corresponding to his condition, and we have no right to call him insane for doing so. Upon a calm and candid review of these scenes, from my present standpoint, I do maintain that the indignant feelings which I still cherish towards Mr. Packard, and did cherish towards Dr. McFarland, for their treatment of me, were not only natural, sane feelings, but also were Christian feelings. For Christ taught us, both by his teachings and example, that we ought to be angry at sin, and even hate it, with as marked a feeling as we loved good. "I, the Lord, hate evil." And so should we. But at the same time we should not sin, by carrying this feeling so far, as to desire to revenge the wrong-doer, or punish him ourselves, for then we go too far to exercise the feeling of forgiveness towards him, even if he should repent. We are not then following Christ's directions, "Be ye angry and sin not." Now I am not conscious of ever cherishing one revengeful feeling towards my persecutors; while, at the same time, I have prayed to God, most fervently, that he would inflict a just punishment upon them for their sins against me, if they could not be brought to repent without. For my heart has ever yearned to forgive them, from the first to the last, on this gospel condition. I think our government has been called to exercise the same kind of indignation towards those conspirators who have done all they can do to overthrow it; and yet, they stand ready to forgive them, and restore them to their confidence, on the condition of practical repentance. And I say further, that it would have been wrong and sinful for our government to have witheld this expression of their resentment towards them, and let them crush it out of existence, without trying to defend itself. I say it did right in defending itself with a resistance corresponding to the attack. So I, in trying to defend myself against this conspiracy against my personal liberty, have only acted on the self-defensive principle. Neither have I ever aggressed on the rights of others in my self-defence. I have simply defended my own rights. In my opinion, it would be no more unreasonable to accuse the inmates of "Libby Prison" with insanity, because they expressed their resentment of the wrongs they were enduring in strong language, than it is to accuse me of insanity for doing the same thing while in my prison. For prison life is terrible under any circumstances. But to be confined amongst raving maniacs, for years in succession, is horrible in the extreme. For myself, I should not hesitate one moment which to choose, between a confinement in an insane asylum, as I was, or being burned at the stake. Death, under the most aggravated forms of torture, would now be instantly chosen by me, rather than life in an insane asylum. And whoever is disposed to call this "strong language," I say, let them try it for themselves as I did, and _then_ let them say whether the expression is any stronger than the case justifies. For until they have tried it, they can never imagine the horrors of the maniac's ward in Jacksonville Insane Asylum. In this connection it may be gratifying to my patrons and readers both, to tell them how I came to write _such_ a book, instead of an ordinary book in the common style of language. It was because such a kind of book was presented to my mind, and no other was. It was under these circumstances that this kind of inspiration came upon me. The day after my interview with the Trustees, the Doctor came to my room to see what was to be done. His first salutation was, "Well, Mrs. Packard, the Trustees seemed to think that you hit your mark with your gun." "Did they?" said I. "And was it that, which caused such roars and roars of laughter from the Trustees' room after I left?" "Yes. Your document amused them highly. Now, Mrs. Packard, I want you to give me a copy of that document, for what is worth hearing once is worth hearing twice." "Very well," said I, "I will. And I should like to give the Trustees a copy, and send my father one, and some others of the Calvinistic clergy. But it is so tedious for me to copy anything, how would it do to get a few handbills or tracts printed, and send them where we please?" "You may," was his reply, "and I will pay the printer." "Shall I add anything to it; that is, what I said to the Trustees, and so forth?" "Yes, tell the whole! Write what you please!" With this most unexpected license of unrestricted liberty, I commenced re-writing and preparing a tract for the press. But before twenty-four hours had elapsed since this liberty license was granted to my hitherto prison-bound intellect, the vision of a big book began to dawn upon my mind, accompanied with the most delightful feelings of satisfaction with my undertaking. And the next time the Doctor called, I told him that it seemed to me that I must write a book--a _big book_--and "that is the worst of it," said I, "I don't want a large book, but I don't see how I can cut it down, and do it justice. I want to lay two train of cars," said I, "across this continent--the Christian and the Calvinistic. Then I want to sort out all the good and evil found in our family institutions, our Church and State institutions, and our laws, and all other departments of trades and professions, &c., and then come on with my two train of cars, and gather up this scattered freight, putting the evil into the Calvinistic train, and the good into the Christian train, and then engineer them both on to their respective terminus. These thoughts are all new and original with me, having never thought of such a thing, until this sort of mental vision came before my mind. What shall I do, Doctor?" "Write it out just as you see it." He then furnished me with paper and gave directions to the attendants to let no one disturb me, and let me do just as I pleased. And I commenced writing out this mental vision; and in six week's time I penciled the substance of "The Great Drama," which, when written out for the press, covers two thousand five hundred pages! Can I not truly say my train of thought was engineered by the "Lightning Express?" This was the kind of inspiration under which my book was thought out and written. I had no books to aid me, but Webster's large Dictionary and the Bible. It came wholly through my own reason and intellect, quickened into unusual activity by some spiritual influence, as it seemed to me. The production is a remarkable one, as well as the inditing of it a very singular phenomenon. The estimation in which the book is held by that class in that Asylum who are "spirit mediums," and whose only knowledge of its contents they wholly derive from their clairvoyant powers of reading it, without the aid of their natural vision, it may amuse a class of my readers to know. It was a fact the attendants told me of, that my book and its contents, was made a very common topic of remark in almost every ward in the house; while all this time, I was closeted alone in my room writing it, and they never saw me or my book. I would often be greatly amused by the remarks they made about it, as they were reported to me by witnesses who heard them. Such as these: "I have read Mrs. Packard's book through, and it is the most amusing thing I ever read." "Calvinism is dead--dead as a herring." "Mrs. Packard drives her own team, and she drives it beautifully, too." "The Packard books are all over the world, Norway is full of them. They perfectly devour the Packard books in Norway." "Mrs. Packard finds a great deal of fault with the Laws and the Government, and she has reason to." "She defends a higher and better law than our government has, and she'll be in Congress one of these days, helping to make new laws!" If this prophetess had said that _woman's influence_ would be felt in Congress, giving character to the laws, I might have said I believed she had uttered a true prophecy. One very intelligent patient, who was a companion of mine, and had read portions of my book, came to my room one morning with some verses which she had penciled the night previous, by moonlight, on the fly-leaf of her Bible, which she requested me to read, and judge if they were not appropriate to the character of my book. She said she had been so impressed with the thought that she must get up and write something, that she could not compose herself to sleep until she had done so; when she wrote these verses, but could not tell a word she had written the next morning, except the first line. I here give her opinions of the book in her own poetic language, as she presented them to me. LINES SUGGESTED BY THE PERUSAL OF THE GREAT DRAMA. Affectionately presented to the "World's Friend"--Mrs. E. P. W. Packard--by her friend, Mrs. Sophia N. B. Olsen. Go, little book, go seek the world; With banner new, with flag unfurled; Go, teach mankind aspirings high, By _human_ immortality! Thou canst not blush; thine open page Will all our higher powers engage; Thy name on every soul shall be, Defender of humanity! The poor, the sad, the sorrowing heart, Shall joy to see thy book impart Solace, to every tear-dimmed eye, That's wept, till all its tears are dry. The palid sufferer on the bed Of sickness, shall erect the head And cry, "Life yet hath charms for me When Packard's books shall scattered be." Each prison victim of despair Shall, in thy book, see written there Another gospel to thy race, Of sweet "Requiescat in pace." The time-worn wigs, with error gray, Their dusty locks with pale dismay, Shall shake in vain in wild despair, To see their prostrate castles, where? No mourner's tear shall weep their doom, No bard shall linger o'er their tomb, No poet sing, but howl a strain Farewell, thou doom'd, live not again. Yes, oh, poor Ichabod must lay, Deep buried in Aceldema! His lost Consuelo shall rise No more, to cheer his death-sealed eyes. Then speed thy book, oh, sister, speed, The waiting world thy works must read; Bless'd be the man who cries, "Go on," "Hinder it not, it shall be gone." Go, little book, thy destiny Excelsior shall ever be; A fadeless wreath shall crown thy brow, O writer of that book! e'en now. The wise shall laugh--the foolish cry-- Both wise and foolish virgins, why? Because the first will wiser grow, The foolish ones some wisdom show. The midnight cry is coming soon, The midnight lamp will shine at noon; I fear for some, who snoring lie, Then rise, ye dead, to judgment fly. The stars shall fade away--the sun Himself grow dim with age when done Shining upon our frigid earth; But Packard's book shall yet have birth, But never death, on this our earth. JACKSONVILLE LUNATIC ASYLUM, Jan. 27, 1863. So much for the opinions of those whom this age call crazy, but who are, in my opinion, no more insane than all that numerous class of our day, who are called "spirit mediums;" and to imprison them as insane, simply because they possess these spiritual gifts or powers, is a barbarity, which coming generations will look upon with the same class of emotions, as we now look upon the barbarities attending Salem Witchcraft. It is not only barbarous and cruel to deprive them of their personal liberty, but it is also a crime against humanity, for which our government must be held responsible at God's bar of justice. I will now give some of the opinions of a few who know something of the character of my book, whom the world recognize as sane. Dr. McFarland used to sometimes say, "Who knows but you were sent here to write an allegory for the present age, as Bunyan was sent to Bedford Jail to write his allegory?" Dr. Tenny, the assistant physician, once said to me as he was pocketing a piece of my waste manuscript, "I think your book may yet become so popular, and acquire so great notoriety, that it will be considered an honor to have a bit of the paper on which it was written!" I replied, "Dr. Tenny, you must not flatter me." Said he, "I am not flattering, I am only uttering my honest opinions." Said another honorable gentleman who thought he understood the character of the book, "Mrs. Packard, I believe your book will yet be read in our Legislative Halls and in Congress, as a specimen of the highest form of law ever sent to our world, and coming millions will read your history, and bless you as one who was afflicted for humanity's sake." It must be acknowledged that this intelligent gentleman had some solid basis on which he could defend this extravagant opinion, namely: that God does sometimes employ "the weak things of the world to confound the mighty." These expressions must all be received as mere human opinions, and nothing more. The book must stand just where its own intrinsic merits place it. If it is ever published, it, like all other mere human productions, will find its own proper level, and no opinions can change its real intrinsic character. The great question with me is, how can I soonest earn the $2,500.00 necessary to print it with? Should I ever be so fortunate as to gain that amount by the sale of this pamphlet, I should feel that my great life-work was done, so that I might feel at full liberty to rest from my labors. But until then, I cheerfully labor and toil to accomplish it. NOTE OF THANKS TO THE PRESS. In this connection, I deem it right and proper that I should acknowledge the aid I have received from the public Press--those newspapers whose manliness has prompted them to espouse the cause of woman, by using their columns to help me on in my arduous enterprise. My object can only be achieved, by enlightening the public mind into the need and necessities of the case. The people do not make laws until they see the need of them. Now, when one case is presented showing the need of a law to meet it, and this is found to be a representative case, that is, a case fairly representing an important class, then, and only till then, is the public mind prepared to act efficiently in reference to it. And as the Press is the People's great engine of power in getting up an agitation on any subject of public interest, it is always a great and desirable object to secure its patronage in helping it forward. This help it has been my good fortune to secure, both in Illinois and Massachusetts. And my most grateful acknowledgments are especially due the Journal of Commerce of Chicago, also the Chicago Tribune, the Chicago Times, the Post, the New Covenant, and the North Western Christian Advocate. All these Chicago Journals aided me more or less in getting up an agitation in Illinois, besides a multitude of other papers throughout that State too numerous to mention. Some of the papers in Massachusetts, to whom my acknowledgments are due, are the Boston Journal, the Transcript, the Traveller, the Daily Advertiser, the Courier, the Post, the Recorder, the Commonwealth, the Investigator, the Nation, the Universalist, the Christian Register, the Congregationalist, the Banner of Light, and the Liberator. All these Boston Journals have aided me, more or less, in getting up an excitement in Massachusetts, and bringing the subject before the Massachusett's Legislature. Many other papers throughout the State have noticed my cause with grateful interest. As the public came to apprehend the merits of my case, and look upon it as a mirror, wherein the laws in relation to married women are reflected, they will doubtless join with me in thanks to these Journals who have been used as means of bringing this light before them. TESTIMONIALS. Although my cause, being based in eternal truth, does not depend upon certificates and testimonials to sustain it, and stands therefore in no need of them; yet, as they are sometimes called for, as a confirmation of my statements, I have asked for just such testimonials as the following gentlemen felt self-moved to give me. I needed no testimonials while prosecuting my business in Illinois, for the facts of the case were so well known there, by the papers reporting my trial so generally. I needed no other passport to the confidence of the public. But when I came to Boston to commence my business in Massachusetts, being an entire stranger there, I found the need of some credentials or testimonials in confirmation of my strange and novel statements. And it was right and proper, under such circumstances, that I should have them. I therefore wrote to Judge Boardman and Hon. S. S. Jones, my personal friends, in Illinois, and told them the difficulty I found in getting my story believed, and asked them to send me anything in the form of a certificate, that they in their judgment felt disposed to send me, that might help me in surmounting this obstacle. Very promptly did these gentlemen respond to my request, and sent me the following testimonials, which were soon printed in several of the Boston papers, with such editorials accompanying them, as gave them additional weight and influence in securing to me the confidence of the public. Judge Boardman is an old and distinguished Judge in Illinois, receiving, as he justly merits, the highest esteem and confidence of his cotemporaries, as a distinguished scholar, an eminent Judge, and a practical Christian. Mr. Jones is a middle aged man, of the same stamp as the Judge, receiving proof of the esteem in which he is held by his cotemporaries, in being sent to Congress by vote of Illinois' citizens, and by having been for successive years a member of the Legislature of that State. He was in that position when he sent me his certificate. JUDGE BOARDMAN'S LETTER. _To all persons who would desire to give sympathy and encouragement to a most worthy but persecuted woman!_ The undersigned, formerly from the State of Vermont, now an old resident of the State of Illinois, would most respectfully and fraternally certify and represent: That he has been formerly and for many years, associated with the legal profession in Illinois, and is well known in the north-eastern part of said State. That in the duties of his profession and in the offices he has filled, he has frequently investigated, judicially, and otherwise, cases of insanity. That he has given considerable attention to medical jurisprudence, and studied some of the best authors on the subject of insanity; has paid great attention to the principles and philosophy of mind, and therefore would say, with all due modesty, that he verily believes himself qualified to give an opinion entitled to respectful consideration, on the question of the sanity or insanity of any person with whom he may be acquainted. That he is acquainted with Mrs. E. P. W. Packard, and verily believes her not only sane, but that she is a person of very superior endowments of mind and understanding, naturally possessing an exceedingly well balanced organization, which, no doubt, prevented her from becoming insane, under the persecution, incarceration, and treatment she has received. That Mrs. Packard has been the victim of _religious bigotry_, purely so, without a single circumstance to alleviate the darkness of the transaction! A case worthy of the palmiest days of the inquisition!! The question may be asked, how this could happen, especially in Northern Illinois? To which I answer that the common law prevails here, the same as in other States, where this law has not been modified or set aside by the statute laws, which gives the legal custody of the wife's person, into the hands of the husband, and therefore, a wife can only be released from oppression, or even from imprisonment by her husband, by the legal complaint of herself, or some one in her behalf, before the proper judicial authorities, and a hearing and decision in the case; as was finally had in Mrs. Packard's case, she having been in the first place, taken by force, by her husband, and sent to the Insane Hospital, without any opportunity to make complaint, or without any hearing or investigation. But how could the Superintendent of the Insane Hospital be a party to so great a wrong? Very easily answered, without necessarily impeaching his honesty, when we consider that her alleged insanity was on religious subjects; her husband a minister of good standing in his denomination, and the Superintendent sympathizing with him, in all probability, in religious doctrine and belief, supposed, of course, that she was insane. She was legally sent to him, by the authority of her husband, as insane; and Mrs. Packard had taught doctrines similar to the Unitarians and Universalists and many radical preachers; and which directly opposed the doctrine her husband taught, and the doctrine of the Church to which he and Mrs. Packard belonged; the argument was, that of course the woman must be crazy!! And as she persisted in her liberal sentiments, the Superintendent persisted in considering that she was insane! However, whether moral blame should attach to the Superintendent and Trustees of the Insane Hospital, or not, in this transaction, other than prejudice, and learned ignorance; it may now be seen, from recent public inquiries and suggestions, that it is quite certain, that the laws, perhaps in all the States in relation to the insane, and their confinement and treatment, have been much abused, by the artful and cunning, who have incarcerated their relatives for the purpose of getting hold of their property; or for difference of opinion as to our state and condition in the future state of existence, or religious belief. The undersigned would further state: That the published account of Mrs. Packard's trial on the question of her sanity, is no doubt perfectly reliable and correct. That the Judge before whom she was tried, is a man of learning, and ability, and high standing in the judicial circuit, in which he presides. That Mrs. Packard is a person of strict integrity and truthfulness, whose character is above reproach. That a history of her case after the trial, was published in the daily papers in Chicago, and in the newspapers generally, in the State; arousing at the time, a public feeling of indignation against the author of her persecution, and sympathy for her; that nothing has transpired since, to overthrow or set aside the verdict of popular opinion; that it is highly probable that the proceedings in this case, so far as the officers of the State Hospital for the insane are concerned, will undergo a rigid investigation by the Legislature of the State. The undersigned understands that Mrs. Packard does not ask pecuniary charity, but that sympathy and paternal assistance which may aid her to obtain and make her own living, she having been left by her husband, without any means, or property whatever. All of which is most fraternally and confidently submitted to your kind consideration. WILLIAM A. BOARDMAN. WAUKEGAN, ILL., DEC. 3, 1864. HON. S. S. JONES' LETTER. "_To a kind and sympathizing public_:-- This is to certify that I am personally acquainted with Mrs. E. P. W. Packard, late an inmate of the Insane Asylum of the State of Illinois. That Mrs. Packard was a victim of a foul and cruel conspiracy I have not a single doubt, and that she is and ever has been as sane as any other person, I verily believe. But I do not feel called upon to assign reasons for my opinion, in the premises, as her case was fully investigated before an eminent Judge of our State, and after a full and careful examination, she was pronounced sane, and restored to liberty. Still I repeat, but for the cruel conspiracy against her, she could not have been incarcerated, as a lunatic, in an asylum. Whoever reads her full and fair report of her case, will be convinced of the terrible conspiracy that was practiced towards a truly thoughtful and accomplished lady. A conspiracy worthy of a demoniac spirit of ages long since passed, and such as we should be loth to believe could be practiced in this enlightened age, did not the records of our court verify its truth. To a kind and sympathizing public I commend her. The deep and cruel anguish she has had to suffer, at the hands of those who should have been her protectors, will, I doubt not, endear her to you, and you will extend to her your kindest sympathy and protection. Trusting through her much suffering the public will become more enlightened, and that our noble and benevolent institutions--the asylums for the insane--will never become perverted into institutions of cruelty and oppression, and that Mrs. Packard may be the last subject of such a conspiracy as is revealed in her books, that will ever transpire in this our State of Illinois, or elsewhere. Very respectfully, S. S. JONES." ST. CHARLES, ILL., DEC. 2, 1864. EDITORIAL REMARKS. "Assuming, as in view of all the facts it is our duty to do, the correctness of the statements made by Mrs. Packard, two matters of vital importance demand consideration: 1. What have 'the rulers in the church' done about the persecution? They have not publicly denied the statements; virtually (on the principle that under such extraordinary circumstances silence gives consent,) they concede their correctness. Is the wrong covered up? the guilty party allowed to go unchallenged lest "the cause" suffer by exposure? If they will explain the matter in a way to exculpate the accused, these columns shall be prompt to do the injured full and impartial justice. We are anxious to know what they have to say in the premises. If Mrs. Packard _is_ insane because she rejects Calvinism, then _we_ are insane, liable to arrest, and to be placed in an insane asylum! We have a _personal_ interest in this matter. 2. Read carefully Judge Boardman's statement as to the bearing of "common law" on Mrs. Packard's case. If a bad man, hating his wife and wishing to get rid of her, is base enough to fabricate a charge of insanity, and can find two physicians "in regular standing" foolish or wicked enough to give the legal certificate, the wife is helpless! The "common law" places her wholly at the mercy of her brutal lord. Certainly the statute should interfere. Humanity, not to say Christianity, demands, that special enactments shall make impossible, such atrocities as are alleged in the case of Mrs. Packard--atrocities which, according to Judge Boardman, _can_ be enacted in the name of "common law." We trust the case now presented will have at least the effect, to incite Legislative bodies to such enactments as will protect women from the possibility of outrages, which, we are led to fear, ecclesiastical bodies had rather cover up, than expose and rebuke to the prejudice of sectarian ends--the 'sacred cause.'" As I have said, there was a successful effort made in the Massachusett's Legislature to change the laws in reference to the mode of commitment into Insane Asylums that winter, 1865, and as Hon. S. E. Sewall was my "friend and fellow laborer," as he styles himself, in that movement, I made application to him this next winter, for such a recommend as I might use to aid me in bringing this subject before the Illinois' Legislature this winter, for the purpose of getting a change in their laws also. But finding that the Illinois' Legislature do not meet this year, I have had no occasion to use it, as I intended. Having it thus on hand, I will add this to the foregoing. HON. S. E. SEWALL'S TESTIMONIAL. "I have been acquainted with Mrs. E. P. W. Packard for about a year, I believe. She is a person of great religious feeling, high moral principle, and warm philanthropy. She is a logical thinker, a persuasive speaker, and such an agitator, that she sometimes succeeds where a man would fail. I think she will be very useful in the cause to which she has devoted herself, I mean procuring new laws to protect married women. I give Mrs. Packard these lines of recommendation, because she has asked for them. I do not think them at all necessary, for she can recommend herself, far better than I can. S. E. SEWALL." BOSTON, NOV. 27, 1865. After these testimonials, and the editorial remarks accompanying them had appeared in these Boston journals, Mr. Packard sent various articles to these journals in reply, designing to counteract their legitimate influence in defence of my course. Some of these articles were published, and many were refused, by the editors. The "Universalist," and the "Daily Advertiser," published a part of his voluminous defence, which was made up almost entirely of certificates and credentials, but no denial of the truth of the general statement. The chief point in his defence which he seemed the most anxious to establish was, that my trial was not correctly reported--and not a fair trial--a mere mob triumph, instead of a triumph of justice. One of these papers, containing his impeachments of the court, was sent to Kankakee City, Illinois, where the court was held, and elicited many prompt and indignant replies. An article soon appeared in the Kankakee paper, on this subject, stating his defamations against the judge, lawyers, and jury, and then added, "Mr. Packard is both writing his wife into notoriety, and himself into infamy," by his publishing such statements, as he would not dare to publish in Illinois; and it was astonishing to them, how such a paper as the Boston "Daily Advertiser," should allow such scandals respecting the proceedings of Illinois' courts to appear in its columns. I will here give entire only one of the many articles sent to the Boston papers in reply. This article was headed, THE REPLY OF THE REPORTER OF MRS. PACKARD'S TRIAL, TO REV. THEOPHILUS PACKARD'S CHARGE OF MISREPRESENTATION. "_To the Editors of the Boston Daily Advertiser_:-- In the supplement of the Boston Daily Advertiser of May 3d, appears a collection of certificates, introduced by Rev. Theophilus Packard, which requires a notice from me. These certificates are introduced for one or two purposes. First, either to prove that the report of the trial of Mrs. Elizabeth Packard, held before the Hon. C. R. Starr, Judge of the Second Judicial Circuit of the State of Illinois, on the question of her insanity, as published in the "Great Drama," is false; or, secondly, to prove to the readers of the Advertiser that Mr. Packard is not so bad a man as those who read the trial would be likely to suppose him to be. In determining the truth of the statements of any number of persons relative to any given subject, it is always profitable to inquire who the persons that make the statements are, what is their relation to the subject-matter, and what their means of information. I entered upon the defence of Mrs. Packard without any expectation of fee or reward, except such as arises from a consciousness of having discharged my duty toward a helpless and penniless woman, who was either indeed insane, or was most foully dealt with by him who had sworn to love, cherish and protect her. I was searching for the truth. I did then no more and no less than I should do for any person who claimed that their sacred rights were daily violated, and life made a burden most intolerable to be borne, by repeated wrongs. The report was made from written notes of the testimony taken during the trial. And this is the first time I ever heard the correctness of the report called in question. It would be very unlikely that I should make an incorrect report of an important case, which I knew would be read by my friends and business acquaintances, and which (if incorrect) would work a personal injury. Policy and selfish motives would prevent me from making an incorrect report, if I was guided by nothing higher. The first certificate presented is signed by Deacon A. H. Dole, and Sibyl T. Dole, who are the sister and brother-in-law of Mr. Packard, and, as the trial shows, his _co-conspirators_; J. B. Smith, another of his deacons, who was a willing tool in the transaction; and Miss Sarah Rumsey, another member of his Church, who went to live with Mr. Packard when Mrs. Packard was first kidnapped. Let Jeff. Davis be put on trial, and then take the certificates of Mrs. Surratt, Payne, Azteroth, Arnold, Dr. Mudd and George N. Saunders, and I am led to believe they would make out Jeff. to be a "Christian President," whom the barbarous North were trying to murder. Their further certificate "that the disorderly demonstrations by the furious populace, filling the Court House while we were present at the said trial, were well calculated to prevent a fair trial," is simply bosh, but is on a par with the whole certificate. It is a reflection upon the purity of our judicial system, and upon our Circuit Court, that they would not make at home. And I can only account for its being made on the supposition that it would not be read in Illinois. "The furious populace" consisted of about two hundred ladies of our city who visited the trial until it was completed, because they felt a sympathy for one of their own sex, whose treatment had become notorious in our city. The conspirators allege that Mrs. Packard is insane. They each swore to this on the trial, but a jury of twelve men after hearing the whole case, upon their oaths said in effect they did not believe these witnesses, for by their verdict they found her SANE. The second certificate is from Samuel Packard. It is a sufficient answer to this to say that he is the son of Mr. Packard, and entirely under his father's control, and that it is apparent upon the document that the boy never wrote a word of it. Then follows a certificate from Lizzie, who takes umbrage because I called her in the report the "little daughter" of Mrs. Packard, and is made to say pertly she was then _fourteen_. She then acted like a good daughter, who loved her mother dearly, and her size and age never entered into the consideration of the audience of ladies whose hearts were touched and feelings stirred, till the fountain of their tears was broken, by the kind and natural emotions which were then exhibited by the mother and daughter. When Mrs. Packard was put in the hospital Lizzie was about ten years old, and a thinking public will determine what judgment she could then form about her mother's "religious notions" and her "insanity," "to the great sorrow of all our family." One word further upon the certificate of Thomas P. Bonfield, and I will close. He says that the trial commenced very soon after the writ of habeas corpus was served on Mr. Packard, and therefore he could not obtain his evidence, and was prevented from obtaining the attendance of Dr. McFarland, Superintendent of the Insane Hospital of Illinois. Dr. McFarland was the only witness whose attendance Mr. Packard's counsel expressed a desire for that was not present. They had his certificate that Mrs. Packard was insane, which they used as evidence, and which went to the jury. The defence had no opportunity for cross-examination, while Mr. Packard thus got the benefit of McFarland's evidence that she was insane, with no possibility of a contradiction. What more could he have had if the witness had been present? The certificate further states that "a large portion of the community were more intent on giving Presbyterianism a blow than on investigating, or leaving the law to investigate, the question of Mrs. Packard's insanity." Well, what did the "feelings" of the community have to do with the court and jury? You selected the jury. You said they were good men. If not good, you could have rejected them. The presiding judge is a member of the Congregational Church, which is nearly allied to the Presbyterian. Five of the twelve jurymen were regular attendants of the Presbyterian Church. No complaint was then made that you could not have a fair trial. If Packard believed he could not, the statute of Illinois provides for a change of venue, which petition for a change of venue you had Mr. Packard sign, but which you concluded not to present, because you thought it would _not_ be granted. If you thought it would not be granted, it was because you did not have a case that the venue could be changed, because when the proper affidavit is made for a change of venue, the Court has no power to refuse the application. The trial was conducted as all trials are conducted in Boston or in Illinois, and the verdict of the jury pronounced Mrs. Packard sane. The published report of the trial is made. It no doubt presents Mr. Packard and his confederates in a very unfavorable light, but it is just as they presented themselves. If they do not like the picture they should not have presented the original. STEPHEN R. MOORE. KANKAKEE, ILL., MAY 16, 1865. CONCLUSION. In view of the above facts and principles on which this argument of "Self-defence from the charge of Insanity" is based, I feel sure that the array of sophisms which Mr. Packard may attempt to marshall against it, will only be like arguing the sun out of the heavens at noon-day. He is the only one who has ever dared to bring personal evidence of insanity against me, so far as my knowledge extends. Others believe me to be insane, but it is on the ground of his _testimony_, not from personal proof, by my own words and actions, independent of the coloring _he_ has put upon them. For example, I find he has reported as proof of my insanity, "that I have punished the children for obeying him." Had this been the case, in the sense in which he meant it to be understood, it would look like an insane, or at least very improper, act. But it is not true that I ever punished a child for obeying their father; but on the contrary, have exacted implicit obedience to their father's wishes and commands, and have even enforced this, my own command, by punishments, to _compel_ them to respect their father's authority, by obeying his commands. But this I have also done. I have maintained the theory, by logic and practice both, that a mother had a right to enforce her own reasonable commands--that her authority to do so was delegated to her by God himself, and not by her husband--and that this right to command being delegated to her by God himself, as the God given right identified with her maternity, the husband had no right to interfere or usurp this God bestowed right from the wife. But on the contrary, it was the husband's duty, as the wife's God appointed protector, to see that this right was defended to the wife by his authority over the children, requiring of them obedience to her commands, as one whose authority they must respect. Yes, I have trained my children to respect my authority as a God delegated authority, equal in power, _in my sphere_, to their father's God delegated authority. And farther, I have taught them, that I had no right to go out of _my sphere_ and interfere with their father's authority in his sphere; neither had their father a right to trespass upon my sphere, and counter order my commands. I maintain, that the one who commands is the only rightful one to countermand. Therefore, the father has no right to countermand the mother's orders, except _through her_; neither has the mother a right to countermand the father's order, except through _him_. Here is the principle of "equal rights," which our government is bound to respect. And it is because they do not respect it, that my husband has usurped all my maternal rights, thus proving himself traitor, not only to his own manliness, but traitor to the principles of God's government. But as this is a volume of facts, rather than theories, I will add one fact in vindication of my assertion, that I uniformly taught my children to respect their father's authority. When I was incarcerated in my prison, my oldest son, Theophilus, was in the post-office in Mt. Pleasant, Iowa, as clerk, and had not seen me for two years. His regard for me was excessive. He had been uniformly filial, and very kind to me, and therefore when he learned that his loving mother was a prisoner in a lunatic asylum, he felt an unconquerable desire to see me, and judge for himself, whether I was really insane, or whether I was the victim of his father's despotism. His father, aware of this feeling, and fearing he might ascertain the truth respecting me, by some means, sent him a letter, commanding him not to write to his mother now in the asylum, and by no means visit her there, adding, if he did so, he should disinherit him. Theophilus was now eighteen years of age, and, as yet, had never known what it was to disobey either his father's or mother's express commands. But now his love for his mother led him to question the justice of this seemingly arbitrary command, and he, fearful of trusting to his own judgment in this matter, sought advice from those who had once been Mr. Packard's church members and deacons in Mt. Pleasant, and from all he got the same opinion strongly defended, that he had a right to disobey _such_ a command. He therefore ventured to visit his mother in her lonely prison home in defiance of his father's edict. I was called from my ward to meet my darling first-born son in the reception room, when I had been in my prison about two months. After embracing me and kissing me with all the fondness of a most loving child, and while shedding our mutual tears of ecstasy at being allowed once more to meet on earth, he remarked, "Mother, I don't know as I have done right in coming to see you as I have, for father has forbid my coming, and you have always taught me never to disobey my father." "Disobeyed your father!" said I. "Yes, I have always taught you it was a sin to disobey him, and I do fear you have done wrong, if you have come to see me in defiance of your father's command. You know we can never claim God's blessing in doing wrong, and fear our interview will not be a blessing to either of us, if it has been secured at the price of disobedience to your father's command." Here his tears began to flow anew, while he exclaimed, "I was afraid it would prove so! I was afraid you would not approve of my coming! But, mother, I could not bear to feel that you had become insane, and I could not believe it, and would not, until I had seen you myself; and now I see it is just as I expected, you are not insane, but are the same kind mother as ever. But I am sorry if I have done wrong by coming." I wept. He wept. I could not bear to blame my darling boy. And must I? was the great question to be settled. "My son," said I, "let us ask God to settle this question for us," and down we both kneeled by the sofa, and with my arm around my darling boy, I asked God if I should blame him for coming to see me in defiance of his father's order. While asking for heavenly wisdom to guide us in the right way, the thought came to me, "go and ask Dr. McFarland." I accordingly went to the Doctor's parlor, where I found him alone, reading his paper. I said to him, "Doctor, I have a question of conscience to settle, and I have sought your help in settling it, namely, has my son done wrong to visit me, when his father has forbid his coming, and has threatened to disinherit him if he did? He has the letter with him showing this to be the case." After thinking a moment, the Doctor simply replied, "Your son had a _right_ to visit his mother!" O, the joy I felt at this announcement! It seemed as if a mountain had been lifted from me, so relieved was I of my burden. With a light heart I sought my sobbing boy, and encircling my arms about his neck, exclaimed, "Cheer up! my dear child, you had a _right_ to visit your mother! so says the Doctor." Why was this struggle with our consciences? Was it not that we had trained them to respect paternal authority? Can testimony, however abundant, change this truth into a falsehood? That principle of self-defence, which depends wholly on certificates and testimonials, instead of the principle of right, truth and justice, is not able to survive the shock which the revelation of truth brings against it. A lie, however strongly fortified by testimonials and certificates, can never be transformed into a truth. Neither can the truth, however single, and isolated, and alone, be its condition, can never be transformed into a lie, nor crushed out of existence. No. The truth will stand alone, and unsupported. Its own weight, simply, gives it firmness to resist all shocks brought against it, to produce its overthrow. Like the house built upon a rock, it needs no props, no certificates, to sustain it. Storms of the bitterest persecution may beat piteously upon it, but they cannot overthrow it, for its foundation is the rock of eternal truth. But lies, are like the house built upon the sand. While it does stand, it needs props or certificates on all sides, to sustain it. And it cannot resist the storm even of a ventilating breeze upon it, for it must and will fall, with all its accumulated props, before one searching investigation; and the more props it has so much the more devastation is caused by its overthrow. And here I wish to add, that it was not because Mr. Packard was a minister, that bigotry had power thus to triumph over his manliness, but because he was a man, liable to be led astray from the paths of rectitude as other human beings are. The ministerial office does not insure men against the commission of sins of the darkest hue, for the ministry is composed of men, who are subject to like frailties and passions as other men are; and ministers, like all other men, must stand just where their own actions will place them, not where their position ought always to find them. They ought to be men whose characters should be unimpeached. But they are not all so. Neither are all other men what they should be in their position. It is as much the duty of the minister to be true to himself--true to the instincts of his God-like nature, as it is other men. And any deviation from the path of rectitude which would not be tolerated in any other man, ought not to be tolerated in a minister. In short, ministers must stand on a common level with the rest of the human race in judgment. That is, they, like others, must stand just where their own conduct and actions place them. If their conduct entitles them to respect, we should respect them. But if their conduct makes them unworthy of our respect and confidence, it is a sin to bestow it upon them; for this very respect which we give them under such circumstances, only countenances their sins, and encourages them in iniquity, and thus puts their own souls in jeopardy, as well as reflects guilt on those who thus helped them work out their own destruction, when they ought to have helped them work out their own repentance for evil doing. AN APPEAL TO THE GOVERNMENT. As my case now stands delineated by the foregoing narrative, all the States on this continent can see just where the common law places all married women. And no one can help saying, that any law that can be used in support of such a persecution, is a disgrace to any government--Christian or heathen. It is not only a disgrace, a blot on such a government, but it is a crime, against God and humanity, to let confiding, trusting woman, be so unprotected in law, from such outrageous abuses. Mr. Packard has never impeached my _conduct_ in a single instance, that I know of; neither has he ever charged me guilty of one insane _act_--except that of teaching my children doctrines which I believed, and he did not! This is all he ever alleges against me. He himself confirms the testimony of all my friends, that I always did discharge my household duties in a very orderly, systematic, kind, and faithful manner. In short, they maintain that I, during all my married life, have been a very self-sacrificing wife and mother, as well as an active and exemplary co-worker with him in his ministerial duties. Now I have mentioned these facts, not for self-glorification, but for this reason, that it may be seen that _good conduct_, even the best and most praiseworthy, does not protect a married woman from the most flagrant wrongs, and wrongs, too, for which she has no redress in the present laws. If a man had suffered a tithe of the wrongs which I have suffered, the laws stand ready to give him redress, and thus shield him from a repetition of them. But not so with me. I must suffer not only this tithe, with no chance of redress, but ten times this amount, and no redress then. I even now stand exposed to a life-long imprisonment, so long as my husband lives, while I not only have never committed any crime, but on the contrary, have ever lived a life of self-sacrificing benevolence, ever toiling for the best interests of humanity. Think again. After this life of faithful service for others, I am thrown adrift, at fifty years of age, upon the cold world, with no place on earth I can call home, and not a penny to supply my wants with, except what my own exertion secures to me. Why is this? Because he who should have been my protector, has been my robber, and has stolen all my life-long earnings. And yet the law does not call this stealing, because the husband is legally authorized to steal from the wife without leave or license from her! Now, I say it is a poor rule that don't work both ways. Why can't the wife steal all the husband has? I am sure she can't support herself as well as he can, and the right of justice seems to be on our side, in our view. But this is not what we want; we don't wish to rob our husbands, we only want they should be stopped from robbing us. We just ask for the reasonable right to use our own property as if it were our own, that is, just as we please, just according to the dictates of our own judgment. And when we insist upon this right, we don't want our husbands to have power to imprison us for so doing, as my husband did me. It was in this manner that I insisted upon my right to my property, with this fatal issue resulting from it. While the discussions in our Bible-class were at the culminating point of interest, Mr. Packard came to my room one day and made me the following proposition: "Wife," said he, "how would you like to go to your brother's in Batavia, and make a visit?" Said I, "I should like it very well, since my influenza has in some degree prostrated my strength, so that I need a season of rest; and besides, I should like an excuse for retiring from this Bible-class excitement, since the burden of these discussions lies so heavily upon me, and if it is not running from my post of duty, I should like to throw off this mental burden also, and rest for a season at least." He replied, "You have not only a perfect right to go, but I think it is your duty to go and get recruited." "Very well," said I, "then I will go, and go, too, with the greatest pleasure. But how long do you think I had better make my visit?" "Three months." "Three months!" said I, "Can you get along without me three months? and what will the children do for their summer clothes without me to make them?" "I will see to that matter; you must stay three months, or not go at all." "Well, I am sure I can stand it to rest that length of time, if you can stand it without my services. So I will go. But I must take my baby and daughter with me, as they have not fully recovered from their influenzas, and I should not dare to trust them away from me." "Yes, you may take them." "I will then prepare myself and them to go just as soon as you see fit to send us. Another thing, husband," said I, "I shall want ten dollars of my patrimony money to take with me for spending money." (This patrimony was a present of $600.00 my father had recently sent me for my especial benefit, and I had put it into Mr. Packard's hands for safe keeping, taking his note on interest as my only security, except with this note he gave me a written agreement, that I should have not only the interest, but any part of the principal, by simply asking him for it whenever I wanted it. When he absconded he took not only all this my money patrimony with him, but also stole all my notes and private papers likewise.) "This you can't have," said he. "Why not? I shall need as much as this, to be absent three months with two sick children. I may need to call a Doctor to them, and, besides, my brother is poor, and I am rich comparatively, and I might need some extra food, such as a beef-steak, or something of the kind, and I should not like to ask him for it. And besides, I have your written promise that I may have my own money whenever I want it, and I do want ten dollars of it now; and I think it is no unreasonable amount to take with me." "I don't think it is best to let you have it. I shan't trust you with money." "Shan't trust me with money! Why not? Have I ever abused this trust? Do not I always give you an exact account of every cent I spend? And I will this time do so; and besides, if you cannot trust it with me, I will put it into brother's hands as soon as I get there, and not spend a cent but by his permission." "No, I shall not consent to that." "One thing more I will suggest. You know Batavia people owe you twelve dollars for preaching one Sabbath, and you can't get your pay. Now, supposing brother 'dun' and get it, may I not use this money if I should chance to need it in an emergency; and if I should not need any, I won't use a cent of it? Or, I will write home to you and ask permission of _you_ before spending a dollar of it." "No. You shall neither have any money, nor have the control of any, for I can't trust you with any." "Well, husband, if I can't be trusted with ten dollars of my own money under these circumstances, and with all these provisions attached to it, I should not think I was capable of being trusted with two sick children three months away from home wholly dependent on a poor brother's charities. Indeed, I had rather stay at home and not go at all, rather than go under such circumstances." "You shall not go at all;" replied he, in a most excited, angry, tone of voice. "You shall go into an Insane Asylum!" "Why, husband!" said I; "I did not suspect _such_ an alternative. I had rather go to him penniless, and clotheless even, than go into an Asylum!" "You have lost your last chance. You _shall_ go into an Asylum!" And so it proved. It was my last chance. In a few days I was kidnapped and locked up in my Asylum prison for life, so far as _he_ was concerned. Now, I ask any developed man, who holds property which is rightfully his own, and no one's else, how he would like to exchange places with me, and be treated just as I was treated. Now, I say it is only fair that the law makers should be subject to their own laws. That is, they should not make laws for others, that they would not be willing to submit to themselves in exchange of circumstances. Just put the case to yourselves, and ask how would you like to be imprisoned without any sort of trial, or any chance at self-defence, and then be robbed of all your life earnings, by a law which women made for your good (?) as your God appointed protectors! O, my government--the men of these United States--do bear with me long enough to just make our case your own for one moment, and then let me kindly ask you this question. Won't you please stop this robbery of our inalienable right to our own property, by some law, dictated by some of your noble, manly hearts? Do let us have a _right_ to our own home--a _right_ to our own earnings--a _right_ to our own patrimony. A right, I mean, as _partners_ in the family firm. We do not ask for a separate interest. We want an identification of interests, and then be allowed a legal right to this common fund as the _junior partners_ of this company interest. We most cheerfully allow you the rights of a senior partner; but we do not want you to be senior, junior, and all, leaving us no rights at all, in a common interest. Again, we true, natural women, want our own children too--we can't live without them. We had rather die than have them torn from us as your laws allow them to be. Only consider for one moment, what your laws are, in relation to our own flesh and blood. The husband has all the children of the married woman secured to himself, to do with them just as he pleases, regardless of her protests, or wishes, or entreaties to the contrary; while the children of the single women are all given to her as her right by nature! Here the maternal nature of the single woman is respected and protected, as it should be; while the nature of the married woman is ignored and set at naught, and the holiest instinct of woman is trampled in the dust of an utter despotism. In other words, the legitimate offspring of the wife are not protected to her, but given to the husband, while the illegitimate offspring of the unmarried women are protected to her. So that the only way to be sure of having our maternity respected, and our offspring legally protected to us, is to have our children in the single instead of the married state! With shame I ask the question, does not our government here offer a premium on infidelity? And yet this is a Christian government! Why can't the inalienable rights of the lawful wife be _as much_ respected as those of the open prostitute? I say, why? Is it because a woman has no individuality, after she is joined to a man? Is her conscience, and her reason, and her thoughts, all lost in him? So my case demonstrates the _law_ to be, when practically tested. And does not this legalized despotism put our souls in jeopardy, as well as our bodies, and our children? It verily does. It was to secure the interests of my immortal soul, that I have suffered all I have in testing these despotic laws. I would have succumbed long ago, and said I believed what I did not believe, had it not been that I cared more for the safety of my own soul, that I did the temporal welfare of my own dear offspring. I could not be true to God, and also true to the mandates of a will in opposition to God. And whose will was to be my guide, my husband's will, or God's will? I deliberately chose to obey God rather than man, and in that choice I made shipwreck of all my earthly good things. And one good thing I sorely disliked to lose, was my fair, untarnished reputation and influence. This has been submerged under the insane elements of this cruel persecution. But my character is not lost, thank God! nor is it tarnished by this persecution. For my character stands above the reach of slander to harm. Nothing can harm this treasure but my own actions, and these are all guided and controlled by Him, for whose cause I have suffered so much. Yes, to God's grace alone, I can say it, that from the first to the last of all my persecutions, I have had the comforting consciousness of duty performed, and an humble confidence in the approval of Heaven. Strong only in the justice of my cause, and in faith in God, I have stood _alone_, and defied the powers of darkness to cast me down to any destruction, which extended beyond this life. And this desperate treason against manliness which has sought to overwhelm me, may yet be the occasion of the speedier triumph of my spiritual freedom, and that also of my sisters in like bondage with myself. The laws of our government most significantly requires us, "to work out our own salvation with much fear and trembling," lest the iron will which would hold us in subjection, should take from us all our earthly enjoyments, if we dare to be true to the God principle within us. So bitter has been my cup of spiritual suffering, while passing through this crucible of married servitude, that it seems like a miracle almost, that I have not been driven into insanity, or at least misanthropy by it. But a happy elasticity of temperament conspired with an inward consciousness of rectitude, and disinterestedness, has enabled me to despise these fiery darts of the adversary, as few women could. And I cherish such a reverence for my nature, as God has made it, that I cannot be transformed into a "man-hater." I thank God, I was made, and still continue to be, a "man-lover." Indeed, my native respect for the manhood almost approaches to the feeling of reverence, when I consider that man is God's representative to me--that he is endowed with the very same attributes and feelings towards woman that God has--a protector of the weak, not a subjector of them. It is the exceptions, not the masses of the man race, who have perverted or depraved their God-like natures into the subjectors of the dependent. The characteristic mark of this depraved class is a "woman-hater," instead or a "woman-lover," as God, by nature made him. This depraved class of men find their counterpart in those women, who have perverted their natures from "men-lovers," into "men-haters." And man, with a man-hating wife, may need laws to protect his rights, as much as a woman, with a woman-hater for her husband. Laws should take cognizance of _improper actions_, regardless of sex or position. All we ask of our government is, to let us stand just where our actions would place us, without giving us either the right or power to harm any one, not even our own husbands. At least, give us the power to defend ourselves, legally, against our husband's abuses, since you have licensed him with almost Almighty power to abuse us. And it will be taking from these women-haters no right to take from them the right to abuse us. It may, on the contrary, do them good, to be compelled to treat us with justice, just as you claim that it will do the slave-holder good, to compel him to treat his slave with justice. It is oppression and abuse alone we ask you to protect us against, and this we are confident you will do, as soon as you are convinced there is a need or necessity for so doing. And I will repeat, it is for this purpose that I have, in this pamphlet, delineated a subjected wife's true, legal position, by thus presenting my own personal, individual, experience for your consideration. In summing up this argument, based on this dark chapter of a married woman's bitter experience of the evils growing out of the law of married servitude, I would close with a Petition to the Legislatures of all the States of this Union, that they would so revolutionize their statute laws, as to expunge them entirely from that most cruel and degrading kind of despotism, which identifies high, noble woman as its victim. Let the magnanimity of your holy, God-like natures, be reflected from your statute books, in the women protective laws which emanate from them. And may God grant that in each and all of these codes may soon be found such laws as guarantee to married woman a _right_ to her own home, and a _right_ to be the mistress of her own household, and a _right_ to the guardianship of her own minor children. In other words, let her be the legally acknowledged mistress of her own household, and a co-partner, at least, in the interests and destiny of her own offspring. Let the interests of the maternity be _as much_ respected, at least, as those of the paternity; and thus surround the hallowed place of the wife's and mother's sphere of action, with a fortress so strong and invincible, that the single will of a perverted man cannot overthrow it. For home is woman's proper sphere or orbit, where, in my opinion, God designed she should be the sovereign and supreme; and also designed that man should see that this sphere of woman's sovereignty should be unmolested and shielded from any invasions, either foreign or internal. In other words, the husband is the God appointed agent to guard and protect woman in this her God appointed orbit. Just as the moon is sovereign and supreme in her minor orbit, being guarded and protected there by the sovereign power of the sun, revolving in his mighty orbit. The appropriate sphere of woman being the home sphere, she should have a legal right here, secured to her by statute laws, so that in case the man who swore to protect his wife's rights here, perjures himself by an usurpation of her inalienable rights, she can have redress, and thus secure that protection in the _law_, which is denied her by her husband. In short, woman needs legal protection _as a married woman_. She has a right to be a married woman, therefore she has a right to be protected _as a married woman_. If she cannot have protection as a married woman, it is not safe for her to marry; for my case demonstrates the fact, that the good conduct of the wife is no guarantee of protection to her; neither is the most promising developments of manhood, proof against depravity of nature, approximating very near to the point of "total depravity," and then woe to that wife and mother, who has no protection except that of a totally depraved man! But, some may argue, that woman is already recognized in several of the States as an individual property owner, and as one who can do business on a capital of her own, independent of her husband. Yes, we do most gratefully acknowledge this as the day star of hope to us, that the tide is even now set in the right direction. But allow me to say, this does not reach the main point we are aiming to establish, which is, that woman should be a legal _partner_ in the family firm, not a mere appendage to it. This principle of separating the interests of the married pair is not wholesome nor salutary in its results. It tends towards an isolation of interests; whereas it is an identification of interests, which the marriage contract should form and cement. We want an equality of rights, so far as copartners are concerned. These property rights should be so identified as to command the mutual respect of partners, whose interests are one and the same. In short, the wife should be the junior partner, and law should recognize her as such, by protecting to her the rights of a junior partner, and her husband should be the legally constituted senior partner of the family firm. Then, and only till then, is she his companion on an equality, in legal standing, with her husband, and sharing with him the protection of that government, which she has done so much to sustain; which government is based on the great fundamental principle of God's government, namely, an equality of rights to all accountable moral agents. Our government can never echo this heavenly principle, until it defends "equal rights," independent of sex or color. APPENDIX. REV. SAMUEL WARE'S CERTIFICATE TO THE PUBLIC. "This is to certify that the certificates which have appeared in public in relation to my daughter's sanity, were given upon the conviction that Mr. Packard's representations respecting her condition were true, and were given wholly upon the authority of Mr. Packard's own statements. I do therefore certify that it is now my opinion that Mr. Packard has had no cause for treating my daughter Elizabeth as an insane person. SAMUEL WARE. _Attest_, OLIVE WARE, AUSTIN WARE. SOUTH DEERFIELD, AUG. 21, 1866." The reader should be informed that the above certificate was given after I had been a member of my father's family for six months, thus affording him ample opportunity to judge of my real condition, by his own personal observation, since Mr. Packard, and his co-conspirator, Dr. McFarland, the Superintendent of the Asylum, both insist upon it, that I am now in just the same condition in reference to my sanity, that I was when I was kidnapped and forced into my prison. Therefore, when my own dear father's eyes were fully opened to see the deception that had been employed to secure his influence in support of this cruel conspiracy, he felt conscience bound to give the above certificate in vindication of the truth. Another evidence of my Father's entire confidence in my sanity is found in the fact that about this time he re-wrote his will, and so changed it that, instead of now giving me my patrimony "in trust" as before, he has bestowed it upon me, his only daughter, in precisely the same manner, and upon equal terms every way with my two only brothers. MRS. PACKARD'S ADDRESS TO THE ILLINOIS LEGISLATURE. GENTLEMEN OF ILLINOIS GENERAL ASSEMBLY: Thankful for the privilege granted me, I will simply state that I desire to explain my bill rather than defend it, since I am satisfied it needs no defense to secure its passage by this gallant body of gentlemen. I desire to make this public statement of some of the facts of my personal experience, relative to my incarceration in Jacksonville Insane Asylum, that you, the law-makers of this State, may see from the standpoint of my own individual wrongs, the legal liabilities to which all married women and infants have been exposed for the last sixteen years, to false imprisonments in Jacksonville Insane Asylum, under the act passed in 1851, viz.: "Married women and infants who, in the judgment of the Medical Superintendent," (meaning the Superintendent of Illinois State Hospital for the Insane,) "are evidently insane or distracted, may be entered or detained in the hospital, on the request of the husband of the woman or the guardian of the infant, _without_ the evidence of insanity required in other cases." This act was nominally repealed in 1865; but, practically, is still existing, in retaining those who have been previously entered without evidence of insanity, and in receiving others, regardless of the law of '65, which demands a fair trial of all before commitment. In short, the present law is not in all cases enforced, but this unjust law is still in practical force in many instances. Therefore, your petitioners, men of the first legal character and standing in Chicago, in asking for the repeal of this unjust law, not only ask for the enforcement of the new law by a penalty, but also that a jury trial may be forthwith extended to the unfortunate victims of this unjust law, who are now confined in Jacksonville Insane Asylum. In detailing the practical working of this law in my case, I must rely upon your good sense to pardon the egotistical character of the following statement. I am a native of Massachusetts, the only daughter of an orthodox clergyman of the Congregational denomination, and the wife of a Congregational clergyman, who was preaching to a Presbyterian Church in Manteno, Kankakee Co., Ill., when this legal persecution commenced. I have been educated a Calvinist, after the strictest sect, but as my reasoning faculties have been developed by a thorough, scientific education, I have been led, by the simple exercise of my own reason and common sense, to endorse theological views, in conflict with my educated belief and the creed of the church with which I am connected. In short, from my present standpoint, I cannot but believe that the doctrine of total depravity, (which is the great backbone of the Calvinistic system,) conflicts with the dictates of reason, common sense, and the Bible. And, gentlemen, the only crime I have committed is to dare to be true to these, my honest convictions, and to give utterance to these views in a Bible class in Manteno, at the special request of the teacher of that class, and with the full and free consent of my husband. But the popular endorsement of these new views by the class and the community generally, led my husband and his Calvinistic Church to fear, lest their Church creed would suffer serious detriment by this license of private judgment and free inquiry, and as these liberal views emanated from his own family, and he, (for reasons best known to himself,) declining to meet me on the open arena of argument and free discussion, chose, rather, to use this marital power which your laws license him to use, and as this unjust law permits, and got me imprisoned at Jacksonville Insane Asylum, without evidence of insanity, and without any trial, hoping, as he told me, that by this means he could destroy my moral influence, and thereby defend the cause of Christ; as he felt bound to do! It was under these circumstances I was legally kidnapped, as your laws allow, and imprisoned three years at Jacksonville, simply for claiming a right to my own thoughts. The first intimation I had of this legal exposure, was by two men entering my room, on the 18th of June, 1860, and kidnapping me. Two of his Church-members, attended by Sheriff Burgess of Kankakee, took me up in their arms and carried me to the wagon, and thence to the cars, in spite of my lady-like protests, and regardless of all my entreaties for some sort of trial before imprisonment. My husband replied, "I am doing as the laws of Illinois allow me to do--you have no protection in law but myself, and I am protecting you now; it is for your good I am doing this; I want to save your soul; you don't believe in total depravity; I want to make you right." "Husband," said I, "have not I a right to my opinion?" "Yes, you have a right to your opinions if you think right." "But does not the constitution defend the right of religious tolerance to all American citizens?" "Yes, to all citizens it does defend this right, but you are not a citizen; while a married woman, you are a legal nonentity, without even a soul in law. In short, you are dead as to any legal existence, while a married woman, and therefore have no legal protection as a married woman." Thus I learned my first lesson in that chapter of "common law," which denies to married woman a legal right to their own individuality or identity. Here I was taken from my little family of six children, while my babe was only eighteen months old, while in the faithful discharge of all my duties as wife and mother, having done all my own work for twenty-one years, besides educating our own children, and nearly fitting our oldest son for college; in perfect health and sound mind, and forced into an imprisonment of an indefinite length, without the mere form of a trial, and without any chance at self-defense. True, my husband did even more than this "unjust law" demands, for he did get the certificates of two orthodox physicians that I was insane--like Henry Ward Beecher, and Horace Greeley, and Spurgeon, and three-fourths of the religious community; and, besides, he obtained the names of forty others, mostly his own Church members, who thus co-conspired to sustain their minister in this mode of defending the cause of Christ against the contagious influence of dangerous heresies and fatal errors. The influence of the community outside of the Church was thrown into the opposite scale entirely; but their influence was overpowered by the majesty of the law, added to the dignity of the pulpit. I was conveyed by Sheriff Burgess, Deacon Dole and Mr. Packard to your State Hospital, in defiance of the indignant community who had assembled at the depot in large crowds to defend me. Dr. Simmington, the Methodist minister at Manteno, remarked to me, "Mrs. Packard, you will not be there long," and plainly intimated that, in his opinion, no man was fit for his position who would retain such an inmate as myself. Dr. McFarland, of course, was obliged to receive me on this superabundant testimony that I was an insane person, although he apologized to me afterwards for receiving me at all, and for four months he treated me himself, and caused me to be treated, with all the respect of a hotel boarder. He even trusted me with the entire charge of a carriage load of insane patients, and the care of my own team, fourteen times; sometimes I would be absent nearly a half day on some pleasant excursion to the fair-grounds or cemetery, and he never expressed the least solicitude for our safe return. Indeed, he trusted me almost in every situation he would trust the matron. But, at the expiration of this time, with no change whatever in my deportment, I forfeited all his good-will and favors, by presenting him a written reproof for his abuse of his patients, which was afterwards printed, wherein I told him I should expose him when I got out, unless he treated his patients with more justice. He then removed me from the best ward to the worst, where were confined the most dangerous class of patients, and instructed his attendants to treat me just as they did the maniacs, and be sure to keep me a close prisoner, and on no account to allow me to leave the ward, and compel me to sleep in a dormitory with from three to six crazy patients, where my life was exposed, both night as well as day, with no room of my own to flee to for safety from their insane flights and dangerous attacks. I have been dragged around this ward by the hair of my head by the maniacs; I have received blows from them that almost killed me. My seat at the table was by the side of Mrs. Triplet, the most dangerous and violent patient in the whole ward, who almost invariably threatened to kill me every time I went to the table. I have had to dodge the knives and forks and tumblers and chairs which have been hurled in promiscuous profusion about my head, to avoid some fatal blow. I have begged and besought Dr. McFarland to remove me to some place of safety, where my life would not be so exposed, only to see him turn, speechless, away from me! I have endured the scent and filth of a ward, from which my delicate, sensitive nature revolts in loathsome disgust, until I had had time to clean the whole ward with my own hands, before it could be a decent place for human beings to inhabit. From this eighth ward I was not removed until I was discharged, two years and eight months from the day I was consigned to it. I did not set my foot upon the ground in the mean time, although, for the last part of my imprisonment there, Dr. McFarland exchanged some of the noisiest and most boisterous patients for a more quiet class. I have been threatened with the screen-room, and this threat has been accompanied with the flourish of a butcher knife over my head, for simply passing a piece of johnny-cake through a crack under my door to a hungry patient, who was locked in her room to suffer starvation as her discipline for her insanity. I have heard a fond and tender mother begging and pleading, for one whole night and part of a day, for one drink of cold water, but all in vain! simply because she had annoyed her attendant, by crying to see her darling babe and dear little ones at home. I finally persuaded the matron, Mrs. Waldo, to interpose, and give her a drink of water. There was but one of all the employees at that Asylum whom the Dr. could influence to treat me, personally, like an insane person. This was Mrs. De La Hay. Besides threatening me with the screen-room, as I have stated, she threatened to jacket me for speaking at the table. One day, after she had been treating her patients with great injustice and cruelty, I addressed Mrs. McKonkey, who sat next to me at the table, and in an undertone remarked, "I am thankful there is a recording angel present, noting what is going on in these wards;" when Mrs. De La Hay, overhearing my remark, exclaimed in a very angry tone, "Mrs. Packard, stop your voice! if, you speak another word at the table I shall put a straight jacket on you!" Mrs. Lovel, one of the patients, replied, "Mrs. De La Hay, did you ever have a straight jacket on yourself?" "No, my position protects me! but I would as soon put one on Mrs. Packard as any other patient, 'recording angel' or no 'recording angel,' and Dr. McFarland will protect me in doing so, too!" The indignant feeling of the house soon became so demonstrative, in view of the treatment I was receiving, that the Dr. seemed compelled to discharge Mrs. De La Hay to defend his own character from the charge of abusing me, and Mrs. De La Hay soon after became insane, and a tenant of Jacksonville poor-house. He cut me off from all written communication with the outside world, except under the strictest censorship, and made it a dischargeable offence of his employees to permit me to have any means of communication with the outside world. He has refused Mrs. Judge Thomas and other friends, whom he knew desired to comfort me with human sympathy and some choice viands, admission into my presence, and has put them off with the inquiry, "why do you wish to single out Mrs. Packard from the other patients, to administer to her comfort?" and when asked by his guests, who often mistook me for the matron, "why he kept so intelligent a lady in an Insane Asylum?" he would reply, "you must not take any notice of what a patient says!" And the reply he would make to my indignant friends at the hospital, who ventured sometimes to inquire "why are you treating Mrs. Packard in this manner?" has invariably been, "it is all for her good!" Time will not allow me to detail my sufferings and persecutions at that hospital; I will only add, may the Lord forgive Dr. McFarland for the injustice I have suffered at his hands! And God grant that the legislature of 1867 may have the moral courage to effectually remove the liabilities to a repetition of wrongs like my own! Various attempts were made by my Manteno friends to rescue me, but all in vain. My legal non-existence rendered it difficult to extend legal aid to a nonentity, except it come through the identity of my only legal protector, and so long as it was possible to cut me off from any direct application for deliverance, he could ward off the habeas corpus investigation they wished to institute, and as long as the Doctor claimed I was insane, so long this unjust law consigned me to legal imprisonment. My relatives and other friends applied to lawyers, judges and the Governor in my behalf, but all in vain, as these officers were only authorized to administer existing laws; they could neither repeal them nor act contrary to them. On the 18th of June, 1863, I was finally removed from my asylum prison, by order of the Trustees, as the result of a personal interview which Dr. McFarland kindly consented to grant me, and put again into the custody of my husband, who consigned me to a prison in my own house, claiming, as his excuse, that I was just as insane as when I was entered just three years previously, for I had neither recanted nor yielded my right to my identity: therefore, in the judgment of your superintendent, I am hopelessly insane, and am doomed, by his certificates, to a life-long imprisonment in the Insane Asylum at Northampton, Mass., and my husband was just on the point of starting with me for a consignment in that living tomb, when he was arrested by a writ of habeas corpus, issued by judge Starr, of Kankakee City, and used by my Manteno friends in defence of my personal liberty. I was now where I could make direct application, by passing a letter clandestinely through a crack in my window. The trial lasted five days, and resulted in a complete vindication of my sanity, although his witnesses swore that it was evidence of insanity for a person to wish to leave a Presbyterian church and join a Methodist! A full account of this trial is found in this "Three Years Imprisonment for Religious Belief." It was reported by one of my lawyers, and is an impartial record of the whole case. During the trial, Mr. Packard "fled his country" in the night, to avoid the danger of a mob retribution. He took with him all our personal property, even my own wardrobe and children, and rented our home, so that I found myself, at the close of court, homeless, penniless and childless. And this, gentlemen, is legal usurpation, also, on the slavish principle of common law--the legal nonentity of the wife, the man and wife being one, and the one, the man! Gentlemen, we married women need emancipation; and will you not be the pioneer State in our Union, in woman's emancipation? and thus use my martyrdom for the identity of a married woman, to herald this most glorious of all reforms--married woman's legal emancipation, from that of a slave in law, to that of a partner and companion of her husband, in law, as she now is in society? And, lest there be a misunderstanding on this subject, permit me here to explain what kind of slavery I refer to. This slavish position which the principles of common law assigns the married woman, is a relic of barbarism, which the progress of civilization will, doubtless, ere long, annihilate. In the dark ages, married woman was a slave to her husband, both socially and legally, but, as civilization has progressed, she has outgrown her social position--that of a slave--and is now regarded in society as the companion and partner of her husband. But the law has not progressed with civilization, so that married woman is still a slave, legally, while she is his companion, socially. Man, we know, is woman's natural protector, and, in most instances, is all the protection a married woman needs. Still, as the laws are made for the exceptional cases, where man is not a law unto himself, what can be the harm in emancipating woman from this slavish position, so that she can receive governmental protection of her right to "life, liberty and the pursuit of happiness," as well as the marital protection? So, in case where the marital fails, she can have legal protection, while married as well as when single. Then when your darling daughter is called to exchange the paternal protection for the marital, she will not be obliged to alienate her right to governmental protection by this exchange of her natural protectors, but she, the tenderest and the best, can then claim of her government, while a married woman, the same protection of her rights as a woman, which your sons now claim as men. The need of this radical change in married woman's legal position, is more fully elucidated in this book, which contains a detailed account of my persecutions in Illinois, when your State hospital was used, in my case, as inquisition. My object in bringing these facts to your notice is to secure legislative action, where these facts show the need of action. In conclusion, gentlemen of this Assembly, may I be allowed to read a few extracts from Dr. McFarland's published letters on this subject, showing, from his own words, his ground of self-defense. The Doctor says: "All Mrs. Packard's wrongs, persecutions and sufferings, of every description, are utterly the creation of a diseased imagination." Now, I ask, is this so? Can facts be transmuted into fiction by the simple assertion of one man? And is it a mere creation of a diseased imagination that has torn me from my helpless babe and deprived my darling children of a fond mother's tender care? Is it the mere creation of a diseased imagination to find that good conduct, not even the best, is any guarantee of protection to a wife and mother under Illinois laws? Neither Dr. McFarland nor Mr. Packard himself, has ever denied one of the facts in the statement I have made; but as their only justification, they claim that I am insane--and the only proof of insanity they have ever brought in support of this opinion is, "her views of things," as the Doctor expresses himself, or, my private, individual opinions. Now I wish to ask the gentlemen of this Assembly, if, for my using my right of opinion, or my right of private judgment, the public sentiment of this age is going to justify Illinois in keeping me a prisoner three years, under the subterfuge of insanity, based wholly upon my "views of things?" Just consider, for one moment, the principle. Here my personal liberty, for life, hangs suspended wholly on the opinion of this one man, whom policy or interest might tempt to say I was insane when I was not; for this law expressly states that the class I represent may be imprisoned without evidence of insanity, and without trial! Just make the case your own, gentlemen: would it be easy for you to realize that it was a mere creation of your imagination to have two men take you by force from your business and family, without evidence of insanity and without trial, and your kidnappers claim as their only justification, that you are insane on some point in your religious belief, simply because Dr. McFarland says you are, and then lock you up for life, on his single testimony, without proof? Now we, married women and infants, have had our personal liberty, for sixteen years, suspended on this one man's opinion; and possibly he may be found to be a fallible man, and capable of corruption, if we may be allowed to judge of this great man from the standpoint of his own words and actions. Now, if the Doctor was required to prove his patients insane, from their own conduct, there would be a shadow of justice attached to his individual judgment; but while this law allows him to call them insane, and treat them as insane, without evidence of insanity, where is the justice of such a decision? You do not hang a person without proof from the accused's own actions that he is guilty of the charge which forfeits his life. So the personal liberty of married women should not be sacrificed without proof that they are insane, from their own conduct. When Dr. McFarland has brought forward one proof from my own conduct, by one insane act of my own, in support of his position, I will then say he has cause for calling me an insane person; but until that time arrives, I claim he is begging the question entirely, in calling me an insane person, without one evidence to sustain his charge. Gentlemen, it is not merely for my own self-defence from this unpleasant charge, that I lay this argument before you, but it is that you may see, from my standpoint, how exceedingly frail is the thread on which our reputation for sanity is suspended, and how very liable married women and infants are to be thus falsely imprisoned in Jacksonville Insane Asylum. If my testimony might be allowed to add weight to this suspicion or presumption, I would state that, to my certain knowledge, there were married women there when I left, more than three years since, who were not insane then at all, and they are still retained there, as hopelessly insane patients, on the simple strength of the above ground of evidence; and it is my womanly sympathy for this class of prisoners that has moved me to come, alone, from Massachusetts, in the depth of winter, to see if I could not possibly induce this legislature to compassionate their case: for it is under your laws, gentlemen, I have suffered, and they are still suffering, and it is to this legislature of 1867 that we apply for a legal remedy; and we confidently trust you will vindicate the honor of your State in the action you take upon this subject. We trust you will not only have the manliness and moral courage to repeal this unjust law, forthwith, but also extend, promptly, a just trial to its wronged and injured victims. Again, Dr. McFarland writes: "Mr. Packard is suffering from a cause which only gather his church and the public about him, in the bonds of a generous sympathy." I reply to this assertion by stating a few simple facts. Mr. Packard's church and people in Manteno, Illinois, withdrew from him their confidence and support, while I was incarcerated, instead of gathering about him, because public sentiment would not tolerate him, as a minister, with this stigma upon him; and it was the fear of lynch law which drove him from this State during the court, to seek shelter and employment in Massachusetts, his native State. There he succeeded in securing a place as stated supply, by ignoring the decision of your court, and by misrepresenting the west to be in such a semi-barbarous state that it was impossible to get a just decision at any legal tribunal in this uncivilized region, where, he tells them, "a large portion of community were more intent on giving Presbyterianism a blow, than in investigating the question of Mrs. Packard's insanity!" He occupied his new field in Sunderland, Mass., fifteen months, when I returned to my father's house in Sunderland, on a visit, and the result was, my personal presence, together with the facts in the case, upset him, so that neither Sunderland nor any other society in New England can be induced to employ him in defiance of enlightened public sentiment. Indeed, the public sentiment of New England has so blighted and withered his ministerial influence, that the remark of a lawyer in Worcester, Mass., made a few months since, reflects his true social position there, at present. Said he, "there is not a man in New England, neither do I think there is one man in the United States, who would dare to stand the open defender of Mr. Packard in the course he has taken, and in view of the facts as they are now known to exist." Now I would like to ask Dr. McFarland, where are to be found these "bonds of generous sympathy" to which he refers? in the region of the west, or in the east? Here, where the Doctor's assertion is found to be plainly contradicted by facts, can his simple assertions be relied upon as infallible testimony and infallible authority? Again, another extract, and I am done. Dr. McFarland writes, "I have no question but that Mrs. Packard's committal here was as justifiable as in the majority of those now here." Now if this statement of your superintendent is true, viz.: that I am a fair specimen of the majority of his patients, then the Doctor himself must admit that the majority of inmates there are capable of assuming a self-reliant position, and, instead of being supported there as State paupers, as I was during my imprisonment of three years, ought they not to be liberated, and supporting themselves and their families as I am now doing? Mr. Packard has become an object of charity since he cast me penniless upon the world, while I have, without charity, not only supported myself, but have already become voluntarily responsible for his support, and the support and education of my children, from the avails of my own hard labor, since my discharge from my prison; while at the same time, he will not allow me to live in the house with my dear children, lest my heresies contaminate them! Now, Gentlemen, is it not better that I be thus employed, selling my books for their support, rather than be held as your State's prisoner and State's pauper simply because my "views of things" do not happen to coincide with your Superintendent's views of things? It is true, and, gentlemen, your Superintendent's own statement verifies it, that I am not the only one who has been so unjustly imprisoned there, and in the name and behalf of those now there, I beg of this body that you extend to such a fair trial or a discharge. Really, the claims of humanity and the honor of your State both demand that my case stimulate the Illinois legislature of 1867 to provide legal safeguards against false commitments like my own. Permit me here to add, that although I have come from Massachusetts to Illinois at my own expense, without money and without price, for the express purpose of bringing these claims of oppressed humanity to your notice, I do not demand nor ask for any remuneration for my false imprisonment in your State institution, nor for any personal redress of those legal wrongs which have deprived me of my reputation, my home, my property, my children, my liberty; but I do ask that the legal liabilities to such like outrages may be effectually removed by this legislature, and that the justice of a trial by jury may be forthwith extended to those now in that asylum, who have been consigned to an indefinite term of imprisonment, without any trial. Gentlemen of this assembly, in view of the facts now before you, please allow me the additional privilege of adding a few suggestions. You see it has become a demonstrated fact that I, a minister's wife, of Illinois, have been three years imprisoned in your State, by your laws, simply because I could not tell a lie--that is, I could not be false to my own honest convictions; and since I simply claim the right to be an individual instead of a parasite, or an echo of others' views, I am branded by your laws as hopelessly insane! Is it not time for you to legislate on this subject, by enacting laws which shall make it a crime to treat an Illinois citizen as an insane person simply for the utterance of opinions, no matter how absurd those opinions may be to others? Opinions cannot harm the truth, nor the individual, especially if they are absurd or insane opinions. But for irregularities of conduct, such as my persecutors have been guilty of, the law ought to be made to investigate. Imprisonment for religious belief! What is it but treason against the vital principle of this American Government, viz.: religions toleration? Would that I could have claimed protection under the banner of my country's flag, while a citizen of Illinois. But no; this unjust statute law has consigned me to the reign of despotism. And so are all my married sisters in Illinois liable to this consignment, so long as this barbarous law is in force. And O! the horrors of such a consignment! Only think of putting your own delicate, sensitive daughter through the scenes I have been put through. Do you think she would have come out unharmed? God only knows. But this I do know: that it is one principle of ethics, that a person is very apt to become what they are taken to be. You may take the sanest person in the world, and tell them they are insane, and treat them as your Superintendent treats them there--it is the most trying ordeal a person can pass through and not really become insane. And most reverently does Mrs. Packard attribute it to God's grace alone, for carrying her safely through this most awful ordeal, unharmed, and--I am almost tempted to add--God himself could not have done this thing without the strictest conformity on my part, to His own laws of nature, in connection with a well-balanced organization. As it is, to God's grace alone. I say it, I am a monument for the age--a standing miracle, almost, of the power of faith to shield one from insanity, by having come out unharmed, through a series of trials, such as would crush into a level with the beasts, I may say, any one, who did not freely use this antidote. Here let me make one practical suggestion. Is that kind of treatment which causes insanity the best adapted to cure insanity? O, my brothers! my gallant brothers! will you not protect us from such liabilities? Will you not have the manliness to grant to us, married women, the legal right to stand just where our own actions will place us, regardless of our views of things, or our private opinions? that is, may we not have the privilege of being legally protected, as you are, in our rights of opinion and conscience, so long as our good conduct deserves such protection? We have an individuality of our own, which is sacred to ourselves; will you not protect our personal liberty, while in the lawful, lady-like exercise of it? for personal liberty is a boon of inestimable value to ourselves as well as you, and by guarding our liberty against false commitment there, you may have fortified the personal liberty of some of Illinois' best and sanest class of citizens, whose interests are now vitally imperiled by this unjust law. Yes, gentlemen, I, their representative, now stand legally exposed to be kidnapped again, and hid for life in some lunatic Asylum; and since no laws defend me, this may yet be done. Should public sentiment--the only law of self-defence I have--endorse the statements of this terrible conspiracy against the personal liberty and stainless character of an innocent woman, I may yet again be entombed, to die a martyr for the Christian principle of the identity of a married woman. Three long years of false imprisonment does not satisfy this lust for power to oppress the helpless. No; nothing but a life-long entombment can satisfy the selfhood of my only legal protector. O! I do want laws to protect me, and, as an American citizen, I not only ask, but I demand that my personal liberty shall depend upon the decision of a jury--not upon the verdict of public sentiment, or forged certificates, either. My gallant brothers, be true to my cause, if false to me. Be true to woman! defend her as your weak, confiding sister, and Heaven shall reward you; for God is on her side, "and he always wins who sides with God." Fear not; fear nothing so much as the sin of simply not doing your duty. Maintain your death grapple in defence of the heaven-born principles of liberty and justice to all human kind, especially to woman. Emancipate her! for above this cross hangs suspended a crown, of which even our martyred Lincoln's crown of negro emancipation is but a mere type and shadow in brilliancy. And God grant that this immortal crown of unfading honor may be the rightful heritage--the well-earned reward of Illinois' gallant sons, as embodied in their legislators. And all we have to ask for Dr. McFarland is, that you not only allow, but require this great man to stand just where his own actions will place him, regardless of his position, or the opinion of his enemies or his friends. Gentlemen, permit me also to say, that when you have once liberated the sane inmates of that hospital and effectually fortified the rights of the sane citizens of Illinois against false commitments there, you will have taken the first progressive step in the right direction, in relation to this great humanitarian reform. And here I will say, that from what I do know of the practical workings of the internal machinery of that institution, as seen from behind the curtain, from the standpoint of a patient, and from what I know of the personal and private character of Illinois Statesmen, I predict it will not be the last. And, notwithstanding the temporary disfigurement of Illinois' proud escutcheon by this foul stain of religious persecution, which, I regret to say, it now has upon it, may God grant that the present statesmen of Illinois may yet so fully vindicate its honor, as that the van of this great humanitarian reform may yet be heralded to the world in the action of Illinois representatives, as embodied in this legislature of 1867. I hold myself in readiness, gentlemen, to answer any questions, or perform any service in behalf of this cause you may desire of me; and, as an incentive to your acting efficiently in this matter, I will state that several legislatures in New England are watching eagerly the result of my application to you, this winter, and they have engaged me to report to them the result. I desire, therefore, an opportunity to vindicate your character before these legislatures, on the basis of your own actions, for, after you know of the existence of this barbarous law, and its direct application to me, one of its wronged and injured victims, as you now do, I shall no longer be able to plead your ignorance of the existence of such a law, as your vindication from the charge of barbarism, and you must know that the intelligence of the whole civilized world cannot but call a State barbarous in its legislation, so long as this black and cruel law has an existence, even in continuing to hold its victims in its despotic grasp. I know, gentlemen, that since 1865, I can plead that you have nominally repealed it, but so long as this law of '65 is without a penalty to enforce it, it is only a half law, or in other words, it is merely legislative advice--it is not a statute law, and so long as you do retain its injured victims in their false imprisonment, you have not repealed it. Now, gentlemen, much as I would like to gratify the wishes of a member of your House, in erasing the record of this law from my book, on the ground of its having been already repealed, I cannot conscientiously do it so long as that institution continues to receive inmates without any trial by jury, or retains those who have never had any such trial. No, gentlemen; this law and its application to me, cannot be obliterated, for it has already become a page of Illinois' history, which must stand to all coming time, as a living witness against the legislation of Illinois in the nineteenth century. There is one way, and only one, by which you can redeem your State from this foul blot of religious persecution which now desecrates your nationality in the estimation of the whole civilized world, and that is by such practical repentance as this bill demands. This done, I can then, and only till then, vindicate the character of Illinois statesmen, on the ground of their own honorable acts. In an appendix to this book, you will then find not only Mrs. Packard's appeal to Illinois' legislature of 1867, but also the noble manly response of its legislators, as echoed by their own honorable acts. But, should you, for any reason, choose to turn a deaf ear to this appeal in defense of your injured citizens, I shall not rest until I have made this same appeal to the people of this State, and asked from them the justice I am denied from their representatives. And should I be denied there, I shall go to work single-handed and alone, in liberating this oppressed class, by the habeas corpus act, before I shall feel that my skirts are washed from the guilt of hiding these public sins against humanity, which I know to have existence in the State of Illinois. And can you blame me for this manifestation of my heart sympathy for my imprisoned sisters? Can a sensitive woman feel a less degree of sympathy for her own sex, when she knows, as I do from my own bitter experience, the injustice they are daily and hourly now receiving in that dismal prison? And O! if you or your darling daughter were in their places, would you feel like reproaching me as a fanatic, for thus volunteering in your defence? No; you would not. But I should reproach myself, and so must a just God reproach me, should I dare to do less; for there is a vow recorded in the archives of high Heaven, that Mrs. Packard will do all in her power to do, for the deliverance of these victims of injustice, if God will but grant her deliverance. I am delivered! my vow stands recorded there! Shall this vow be a witness against me, or shall it not? Gentlemen of this Assembly, I shall try to redeem that pledge, and so far as you are concerned, my work is now done. Yours remains to be done. God grant you may dare to do right! that you may have the moral courage to dare to settle this great question, just upon its own intrinsic merits, independent of the sanity or the insanity of its defender. Very respectfully submitted to the General Assembly of Illinois, now in Session, by-- MRS. E. P. W. PACKARD. SPRINGFIELD, ILLINOIS, February 12th, 1867. The result of this appeal was the passage of the "Personal Liberty Bill," entitled "An Act for the Protection of Personal Liberty." ACTION OF ILLINOIS LEGISLATURE ON THIS SUBJECT. AN ACT in relation to Insane persons and the Illinois State Hospital for the Insane. SECTION 1. _Be it enacted by the People of the State of Illinois, represented in the General Assembly_: That the circuit judges of this State are hereby vested with power to act under and execute the provisions of the act passed on the 12th of February, 1853, entitled "An act to amend an act entitled 'an act to establish the Illinois State Hospital for the Insane,'" in force March 1st, 1847, in so far as those provisions confer power upon judges of county courts; and no trial shall be had of the question of sanity or insanity before any judge or court, without the presence or in the absence of the person alleged to be insane. And jurors shall be freeholders and heads of families. SEC. 2. Whenever application is made to a circuit or county judge, under the provisions of this act and the act to which this is an amendment, for proceedings to inquire into and ascertain the insanity or sanity of any person alleged to be insane, the judge shall order the clerk of the court of which he is judge to issue a writ, requiring the person alleged to be insane to be brought before him, at the time and place appointed for the hearing of the matter, which writ may be directed to the sheriff or any constable of the county, or the person having the custody or charge of the person alleged to be insane, and shall be executed and returned, and the person alleged to be insane brought before the said judge before any jury is sworn to inquire into the truth of the matters alleged in the petition on which said writ was issued. SEC. 3. Persons with reference to whom proceedings may be instituted for the purpose of deciding the question of sanity or insanity, shall have the right to process for witnesses, and to have witnesses examined before the jury; they shall also have the right to employ counsel or any friend to appear in their behalf, so that a fair trial may be had in the premises; and no resident of the State shall hereafter be admitted into the hospital for the insane, except upon the order of a court or judge, or of the production of a warrant issued according to the provisions of the act to which this is an amendment. SEC. 4. The accounts of said institution shall be so kept and reported to the general assembly, as to show the kind, quantity and cost of any articles purchased for use; and upon quarterly settlements with the auditor, a list of the accounts paid shall be filed, and also the original vouchers, as now required. SEC. 5. All former laws conflicting with the provisions of this act are hereby repealed, and this act shall take effect on its passage. Approved February 16, 1865. Two years practice under this law developed its inability to remove the evils it was designed to remedy. This law, having no penalty to enforce it, was found to be violated in many instances, as it was ascertained to be a fact that Dr. McFarland was constantly receiving patients under the old law of 1851, which this law had nominally repealed. Therefore, a petition was sent to the legislature of 1867, signed by I. N. Arnold, J. Young Scammon, and thirty-six other men of the first legal standing in Chicago, asking for the practical repeal of the old law of 1851, by the enforcement of the new law of 1865. The old law of 1851 is as follows, viz.: "Married women and infants who, in the judgment of the medical superintendent, (meaning the Superintendent of the Illinois State Hospital for the Insane,) are evidently insane or distracted, may be entered or detained in the hospital on the request of the husband of the woman, or the guardian of the infant, _without_ the evidence of insanity required in other cases." The legislature was led to see that by the practical enforcement of this unjust law, the personal liberty of married women and infants was still imperiled, and also that the law of 1865 did not relieve the wronged and injured victims of this unjust law, now imprisoned at Jacksonville Insane Asylum. Therefore, the legislature of 1867 passed the following "Act for the protection of Personal Liberty." AN ACT for the Protection of Personal Liberty. SECTION 1. _Be it enacted by the People of the State of Illinois, represented in the General Assembly_: That no superintendent, medical director, agent or other person, having the management, supervision or control of the Insane Hospital at Jacksonville, or of any hospital or asylum for insane and distracted persons in this State, shall receive, detain or keep in custody at such asylum or hospital any person who has not been declared insane or distracted by a verdict of a jury and the order of a court, as provided by an act of the general assembly of this State, approved February 16, 1865. SEC. 2. Any person having charge of, or the management or control of any hospital for the insane, or of any asylum for the insane in this State, who shall receive, keep or detain any person in such asylum or hospital, against the wishes of such person, without the record or proper certificate of the trial required by the said act of 1865, shall be deemed guilty of a high misdemeanor, and liable to indictment, and on conviction be fined not more than one thousand dollars, nor less than five hundred dollars, or imprisoned not exceeding one year, nor less than three months, or both, in the discretion of the court before which such conviction is had: _provided_, that one half of such fine shall be paid to the informant, and the balance shall go to the benefit of the hospital or asylum in which said person was detained. SEC. 3. Any person now confined in any insane hospital or asylum, and all persons now confined in the hospital for the insane at Jacksonville, who have not been tried and found insane or distracted by the verdict of a jury, as provided in and contemplated by said act of the general assembly of 1865, shall be permitted to have such trial. All such persons shall be informed by the trustees of said hospital or asylum, in their discretion, of the provisions of this act and of the said act of 1865, and on their request, such persons shall be entitled to such trial within a reasonable time thereafter: _provided_, that such trial may be had in the county where such person is confined or detained, unless such person, his or her friends, shall, within thirty days after any such person may demand a trial under the provisions of said act of 1865, provide for the transportation of such person to, and demand trial in the county where such insane person resided previous to said detention, in which case such trial shall take place in said last mentioned county. SEC. 4. All persons confined as aforesaid, if not found insane or distracted by a trial and the verdict of a jury as above, and in the said act of 1865 provided, within two months after the passage of this act, shall be set at liberty and discharged. SEC. 5. It shall be the duty of the State's attorneys for the several counties to prosecute any suit arising under the provisions of this act. SEC. 6. This act shall be deemed a public act, and take effect and be in force from and after its passage. Approved March 5th, 1867. The public will see that, under the humane provisions of this act, all the inmates of every insane asylum in the State of Illinois, whether public or private, who have been incarcerated without the verdict of a jury that they are insane, are now entitled to a jury trial, and unless this trial is granted them within sixty days from the 5th of March, 1867, they are discharged, and can never be incarcerated again without the verdict of a jury that they are insane. No person can be detained there after sixty days, who has not been declared insane by a jury. It is thus that the barbarities of the law of 1851 are wiped out by this act of legislative justice. Now, all married women and infants who have been imprisoned "without evidence of insanity," as this unjust law allows, and who are still living victims of this cruel law, will now be liberated from their false imprisonment, unless they have become insane by the inhumanity of their confinement. And if it is found by the testimony that they were sane when they were imprisoned, and that they have become insane by being kept there, is it humane to perpetuate the cause of their insanity, under the pretext that their cure demands it? Or, in other words, is that kind of treatment which caused their insanity the best adapted to cure their insanity? This great question, who shall be retained as fit subjects for the insane asylum, is now to depend, in all cases, upon the decision of a jury; and each case must be legally investigated, as the law of 1865 directs. ANOTHER ACT OF LEGISLATIVE JUSTICE--APPOINTMENT OF AN INVESTIGATING COMMITTEE. _Resolved, the Senate concurring_, That a joint committee of three from this House and two from the Senate be appointed to visit the hospital for the insane, after the adjournment, of the legislature, at such times as they may deem necessary, with power to send for persons and papers, and to examine witnesses on oath; that said committee be instructed thoroughly to examine and inquire into the financial and sanitary management of said institution; to ascertain whether any of the inmates are improperly detained in the hospital, or unjustly placed there, and whether the inmates are humanely and kindly treated, and to confer with the trustees of said hospital in regard to the speedy correction of any abuses found to exist, and to report to the Governor, from time to time, at their discretion. _And be it further resolved_, That said committee be instructed to examine the financial and general management of the other State institutions. Adopted by the House of Representatives, F. CORWIN, _Speaker_. Concurred in by the Senate, WM. BROSS, _Speaker_. The following gentlemen compose the committee: Hon. E. Baldwin, Farm Ridge, LaSalle county; Hon. T. B. Wakeman, Howard, McHenry county; Hon. John B. Ricks, Taylorville, Christian county, on the part of the House of Representatives. Hon. Allen C. Fuller, Belvidere, Boone county; Hon. A. J. Hunter, Paris, Edgar county, on the part of the Senate. Transcriber's Notes: Passages in italics are indicated by _italics_. Punctuation has been corrected without note. The following misprints have been corrected: "dont" corrected to "don't" (page 6 [twice]) "misued" corrected to "misused" (page 16) "ful" corrected to "full" (page 31) "other'" corrected to "other's" (page 34) "o" corrected to "to" (page 48) "Massachusets" corrected to "Massachusetts" (page 52) "one s" corrected to "one's" (page 66) "pedition" corrected to "perdition" (page 70) "arduour" corrected to "arduous" (page 116) "ander" corrected to "under" (page 130) "dont" corrected to "don't" (page 131) "Kankahee" corrected to "Kankakee" (page 145) "Satte" corrected to "State" (page 155) Other than the corrections listed above, inconsistencies in spelling and hyphenation have been retained from the original. 
4318	----	United States Copyright Office Circular 21 Reproduction of Copyrighted Works by Educators and Librarians ------------------------------------------------------------------------ Many educators and librarians ask about the fair use and photocopying provisions of the copyright law. The Copyright Office cannot give legal advice or offer opinions on what is permitted or prohibited. However, we have published in this circular basic information on some of the most important legislative provisions and other documents dealing with reproduction by librarians and educators. Also available is the 1983 Report of the Register of Copyrights on Library Reproduction of Copyrighted Works (17 U.S.C. 108). The Report and seven appendixes can be purchased in microfiche or paper copies by written request from the National Technical Information Service, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161 or by calling the Sales Desk at (703)487-4650. The FAX number for placing orders is (703) 321-8547. The TTY number for placing orders is (703) 487-4639. When ordering, please include the fol-lowing NTIS Accession Numbers: PB83 148239ACY, Entire Set; PB83 148247ACY, Report Only; PB83 148254ACY, Appendix l (King Report); PB83 148262ACY, Appendix II (Chicago Hearing and Written Comments); PB83 148270ACY, Appendix III (Houston Hearing and Written Comments); PB83 148288ACY, Appendix IV (Washington Hearing and Written Comments); PB83 148296ACY, Appendix V (Anaheim Hearing and Written Comments); PB83 148304ACY, Appendix VI (New York Hearing and Written Comments); and PB83 148312ACY, Appendix VII (Final Written Comments). The 1988 5-year Report of the Register of Copyrights on Library Reproduction of Copyrighted Works is also available from NTIS. Use NTIS Accession Number PB88 212014ACY. **Contents of This Booklet** A. Introductory Note ................................................. 4 B. Exclusive Rights in Copyrighted Works ............................. 4 1. Text of Section 106 ............................................... 4 2. Excerpts From House Report ........................................ 5 C. Fair Use .......................................................... 5 1. Text of Section 107 ............................................... 5 2. Excerpts From House Report ........................................ 6 a. Introductory Discussion ........................................... 6 b. Statement of Intention as to Classroom Reproduction ............... 7 (i) Introductory Statement ........................................... 7 (ii) Guidelines With Respect to Books and Periodicals ................ 7 (iii) Guidelines With Respect to Music ............................... 9 (iv) Discussion of Guidelines ........................................ 9 c. Additional Excerpts .............................................. 10 3. Excerpts From Conference Report .................................. 10 4. Excerpts From Congressional Debates .............................. 11 D. Reproduction by Libraries and Archives ........................... 12 1. Text of Section 108 .............................................. 12 2. Excerpts From Senate Report ...................................... 13 a. Discussion of Libraries and Archives in Profit-Making Institutions .............................................. 13 b. Discussion of Multiple Copies and Systematic Reproduction ........ 13 3. Excerpts From House Report ....................................... 14 a. Introductory Statement ........................................... 14 b. Discussion of Libraries and Archives in Profit-Making Institutions............................................... 15 c. Rights of Reproduction and Distribution Under Section 108 ........ 15 d. General Exemptions for Libraries and Archives .................... 16 e. Discussion of Multiple Copies and Systematic Reproduction ........ 17 f. Discussion of Works Excluded ..................................... 17 4. Excerpts From Conference Report .................................. 17 a. Introductory Discussion of Section 108 ........................... 18 b. Conference Committee Discussion of CONTU Guidelines on Photocopying and Interlibrary Arrangements ................ 18 c. Reprint of CONTU Guidelines on Photocopying and Interlibrary Arrangements .............................................. 18 d. Discussion of "Audiovisual News Program" ......................... 19 e. Discussion of Libraries and Archives in Profit-Making Institutions............................................... 19 5. Copyright Office Regulations Under Section 108 ................... 19 E. Liability for Infringement ....................................... 20 1. Text of Section 504 .............................................. 20 2. Excerpts From House Report ....................................... 21 3. Excerpts From Conference Report .................................. 22 F. Guidelines for Off-air Recording of Broadcast Programming for Educational Purposes ...................................... 22 -------------------- A. INTRODUCTORY NOTE -------------------- *The Subjects Covered in This Booklet* The documentary materials collected in this booklet deal with reproduction of copyrighted works by educators, librarians, and archivists for a variety of uses, including: + Reproduction for teaching in educational institutions at all levels; and + Reproduction by libraries and archives for purposes of study, research, interlibrary exchanges, and archival preservation. The documents reprinted here are limited to materials dealing with reproduction. Under the copyright law, reproduction can take either of two forms: + The making of copies: by photocopying, making micro-form reproductions, videotaping, or any other method of duplicating visually-perceptible material; and + The making of phonorecords: by duplicating sound recordings, taping off the air, or any other method of recapturing sounds. The copyright law also contains various provisions dealing with importations, performances, and displays of copyrighted works for educational and other noncommercial purposes, but they are outside the scope of this booklet. You can obtain a copy of the statute and information about specific provisions by writing to the Publications Section, LM-455, Copyright Office, Library of Congress, Washington, D.C. 20559-6000. *A Note on the Documents Reprinted* The documentary materials in this booklet are reprints or excerpts from six sources: 1. The Copyright Act of October 19, 1976. This is the copyright law of the United States, effective January 1, 1978 (title 17 of the United States Code, Public Law 94-553, 90 Stat. 2541). 2. The Senate Report. This is the 1975 report of the Senate Judiciary Committee on S. 22, the Senate version of the bill that became the Copyright Act of 1976 (S. Rep. No. 94-473, 94th Cong., 1st Sess., November 20 (legislative day November 18,1975)). 3. The House Report. This is the 1976 report of the House of Representatives Judiciary Committee on the House amendments to the bill that became the Copyright Act of 1976 (H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., Sep-tember 3,1976). 4. The Conference Report. This is the 1976 report of the "committee of conference on the disagreeing votes of the two Houses on the amendments of the House to the bill (S. 22) for the general revision of the Copyright Law" (H.R. Rep. No. 94-1733, 94th Cong., 2d Sess., September 29,1976). 5. The Congressional Debates. This booklet contains excerpts from the Congressional Record of September 22, 1976, reflecting statements on the floor of Congress at the time the bill was passed by the House of Representatives (122 CONG. REC. H 10874-76, daily edition, September 22,1976). 6. Copyright Office Regulations. These are regulations issued by the Copyright Office under section 108 dealing with warnings of copyright for use by libraries and archives (37 Code of Federal Regulations Sec. 201.14). Items 2 and 3 on this list--the 1975 Senate Report and the 1976 House Report--present special problems. On many points the language of these two reports is identical or closely similiar. However, the two reports were written at different times, by committees of different Houses of Congress, on somewhat different bills. As a result, the discussions on some provisions of the bills vary widely, and on certain points they disagree. The disagreements between the Senate and House versions of the bill itself were, of course, resolved when the Act of 1976 was finally passed. However, many of the disagreements as to matters of interpretation between statements in the 1975 Senate Report and in the 1976 House Report were left partly or wholly unresolved. It is therefore difficult in compiling a booklet such as this to decide in some cases what to include and what to leave out. The House Report was written later than the Senate Report, and in many cases it adopted the language of the Senate Report, updating it and conforming it to the version of the bill that was finally enacted into law. Thus, where the differences between the two Reports are relatively minor, or where the discussion in the House Report appears to have superseded the discussion of the same point in the Senate Report, we have used the House Report as the source of our documentation. In other cases we have included excerpts from both discussions in an effort to present the legislative history as fully and fairly as possible. Anyone making a thorough study of the Act of 1976 as it affects librarians and educators should not, of course, rely exclusively on the excerpts reprinted here but should go back to the primary documentary sources. ---------------------------------------- B. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS ---------------------------------------- 1. Text of Section 106 =============================================================== The following is a reprint of the entire text of section 106 of title 17, United States Code. =============================================================== *Section 106. Exclusive rights in copyrighted works* Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly. *2. Excerpts From House Report on Section 106* ===================================================================== The following excerpts are reprinted from the House Report on the new copyright law (H.R. Rep. No. 94-1476, pages 61-62). The text of the corresponding Senate Report (S. Rep. No. 94-473, pages 57-58) is substantially the same. ===================================================================== SECTION 106. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS General scope of copyright The five fundamental rights that the bill gives to copyright owners--the exclusive rights of reproduction, adaptation, publication, performance, and display--are stated generally in section 106. These exclusive rights, which comprise the so-called "bundle of rights" that is a copyright, are cumulative and may overlap in some cases. Each of the five enumerated rights may be subdivided indefinitely and, as discussed below in connection with section 201, each subdivision of an exclusive right may be owned and enforced separately. The approach of the bill is to set forth the copyright owner's exclusive rights in broad terms in section 106, and then to provide various limitations, qualifications, or exemptions in the 12 sections that follow. Thus, everything in section 106 is made "subject to sections 107 through 118," and must be read in conjunction with those provisions. * * * *Rights of reproduction, adaptation, and publication* The first three clauses of section 106, which cover all rights under a copyright except those of performance and display, extend to every kind of copyrighted work. The exclusive rights encompassed by these clauses, though closely related, are independent; they can generally be characterized as rights of copying, recording, adaptation, and publishing. A single act of infringement may violate all of these rights at once, as where a publisher reproduces, adapts, and sells copies of a person's copyrighted work as part of a publishing venture. Infringement takes place when any one of the rights is violated: where, for example, a printer reproduces copies without selling them or a retailer sells copies without having anything to do with their reproduction. The references to "copies or phonorecords," although in the plural, are intended here and throughout the bill to include the singular (1 U.S.C. Sec. 1). *Reproduction.*--Read together with the relevant definitions in section 101, the right "to reproduce the copyrighted work in copies or phonorecords" means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated in a fixed form from which it can be "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." As under the present law, a copyrighted work would be infringed by reproducing it in whole or in any substantial part, and by duplicating it exactly or by imitation or simulation. Wide departures or variations from the copyrighted work would still be an infringement as long as the author's "expression" rather than merely the author's "ideas" are taken. An exception to this general principle, applicable to the reproduction of copyrighted sound recordings, is specified in section 114. "Reproduction" under clause (1) of section 106 is to be distinguished from "display" under clause (5). For a work to be "reproduced," its fixation in tangible form must be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Thus, the showing of images on a screen or tube would not be a violation of clause (1), although it might come within the scope of clause (5). ----------- C. FAIR USE ----------- 1. *Text of Section 107* ===================================================================== The following is a reprint of the entire text of section 107 of title 17, United States Code. ===================================================================== *Section 107. Limitations on exclusive rights: Fair use* Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. *2. Excerpts From House Report on Section 107* ===================================================================== The following excerpts are reprinted from the House Report on the new copyright law (H.R. Rep. No. 94-1476, pages 65-74). The discussion of section 107 appears at pages 61-67 of the Senate Report (S. Rep. No. 94-473). The text of this section of the Senate Report is not reprinted in this booklet, but similarities and differences between the House and Senate Reports on particular points will be noted below. ===================================================================== *a. House Report: Introductory Discussion on Section 107* ===================================================================== The first two paragraphs in this portion of the House Report are closely similar to the Senate Report. The remainder of the passage differs substantially in the two Reports.** ===================================================================== SECTION 107. FAIR USE *General background of the problem* The judicial doctrine of fair use, one of the most important and well-established limitations on the exclusive right of copyright owners, would be given express statutory recognition for the first time in section 107. The claim that a defendant's acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years, and there is ample case law recognizing the existence of the doctrine and applying it. The examples enumerated at page 24 of the Register's 1961 Report, while by no means exhaustive, give some idea of the sort of activities the courts might regard as fair use under the circumstances: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported." Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which have been adopted in section 107: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." These criteria are relevant in determining whether the basic doctrine of fair use, as stated in the first sentence of section 107, applies in a particular case: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The specific wording of section 107 as it now stands is the result of a process of accretion, resulting from the long controversy over the related problems of fair use and the reproduction (mostly by photocopying) of copyrighted material for educational and scholarly purposes. For example, the reference to fair use--"by reproduction in copies or phonorecords or by any other means"--is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to older forms of use; it is not intended to give these kinds of reproduction any special status under the fair use provision or to sanction any reproduction beyond the normal and reasonable limits of fair use. Similarly, the newly-added reference to "multiple copies for classroom use" is a recognition that, under the proper circumstances of fairness, the doctrine can be applied to reproductions of multiple copies for the members of a class. The Committee has amended the first of the criteria to be considered--"the purpose and character of the use"--to state explicitly that this factor includes a consideration of "whether such use is of a commercial nature or is for non-profit educational purposes." This amendment is not intended to be interpreted as any sort of not-for- profit limitation on educational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions. *General intention behind the provision* The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way. *b. House Report: Statement of Intention as to Classroom Reproduction* ================================================================== The House Report differs substantially from the Senate Report on this point. ================================================================== *(i) Introductory Statement* *Intention as to classroom reproduction* Although the works and uses to which the doctrine of fair use is applicable are as broad as the copyright law itself, most of the discussion of section 107 has centered around questions of classroom reproduction, particularly photocopying. The arguments on the question are summarized at pp. 30-31 of this Committee's 1967 report (H.R. Rep. No. 83, 90th Cong., 1st Sess.), and have not changed materially in the intervening years. The Committee also adheres to its earlier conclusion, that "a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified." At the same time the Committee recognizes, as it did in 1967, that there is a "need for greater certainty and protection for teachers." In an effort to meet this need the Committee has not only adopted further amendments to section 107, but has also amended section 504(c) to provide innocent teachers and other non-profit users of copyrighted material with broad insulation against unwarranted liability for infringement. The latter amendments are discussed below in connection with Chapter 5 of the bill. In 1967 the Committee also sought to approach this problem by including, in its report, a very thorough discussion of "the considerations lying behind the four criteria listed in the amended section 107, in the context of typical classroom situations arising today." This discussion appeared on pp. 32-35 of the 1967 report, and with some changes has been retained in the Senate report on S. 22 (S. Rep. No. 94-473, pp. 63-65). The Committee has reviewed this discussion, and considers that it still has value as an analysis of various aspects of the problem. At the Judiciary Subcommittee hearings in June 1975, Chairman Kastenmeier and other members urged the parties to meet together independently in an effort to achieve a meeting of the minds as to permissible educational uses of copyrighted material. The response to these suggestions was positive, and a number of meetings of three groups, dealing respectively with classroon, reproduction of printed material, music, and audio-visual material, were held beginning in September 1975. *(ii) Guidelines With Respect to Books and Periodicals* In a joint letter to Chairman Kastenmeier, dated March 19, 1976, the representatives of the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, and of the Authors League of America, Inc., and the Association of American Publishers, Inc., stated: "You may remember that in our letter of March 8, 1976 we told you that the negotiating teams representing authors and publishers and the Ad Hoc Group had reached tentative agreement on guidelines to insert in the Committee Report covering educational copying from books and periodicals under Section 107 of H.R. 2223 and S. 22, and that as part of that tentative agreement each side would accept the amendments to Sections 107 and 504 which were adopted by your Subcommittee on March 3,1976. "We are now happy to tell you that the agreement has been approved by the principals and we enclose a copy herewith. We had originally intended to translate the agreement into language suitable for inclusion in the legislative report dealing with Section 107, but we have since been advised by committee staff that this will not be necessary. "As stated above, the agreement refers only to copying from books and periodicals, and it is not intended to apply to musical or audiovisual works." The full text of the agreement is as follows: AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT EDUCATIONAL INSTITUTIONS WITH RESPECT TO BOOKS AND PERIODICALS The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use. GUIDELINES I. Single Copying for Teachers A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class: A. A chapter from a book; B. An article from a periodical or newspaper; C. A short story, short essay or short poem, whether or not from a collective work; D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper; II. Multiple Copies for Classroom Use Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that: A. The copying meets the tests of brevity and spontaneity as defined below; and, B. Meets the cumulative effect test as defined below; and, C. Each copy includes a notice of copyright Definitions *Brevity* (i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words. (ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.] (iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue. (iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstandiiig such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced. *Spontaneity* (i) The copying is at the instance and inspiration of the individual teacher, and (ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission. *Cumulative Effect* (i) The copying of the material is for only one course in the school in which the copies are made. (ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. (iii) There shall not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.] *III. Prohibitions as to I and II Above* Notwithstanding any of the above, the following shall be prohibited: (A) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately. (B) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material. (C) Copying shall not: (a) substitute for the purchase of books, publishers' reprints or periodicals; (b) be directed by higher authority; (c) be repeated with respect to the same item by the same teacher from term to term. (D) No charge shall be made to the student beyond the actual cost of the photocopying. Agreed MARCH 19, 1976. Ad Hoc Committee on Copyright Law Revision: BY SHELDON ELLIOTT STEINBACH. Author-Publisher Group: Authors League of America: BY IRWIN KARP, Counsel. Association of American Publishers, Inc.: BY ALEXANDER C. HOFFMAN, Chairman, Copyright Committee. (iii) Guidelines With Respect to Music In a joint letter dated April 30,1976, representatives of the Music Publishers' Association of the United States, Inc., the National Music Publishers' Association, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revision, wrote to Chairman Kastenmeier as follows: "During the hearings on H.R. 2223 in June 1975, you and several of your subcommittee members suggested that concerned groups should work together in developing guidelines which would be helpful to clarify Section 107 of the bill. "Representatives of music educators and music publishers delayed their meetings until guidelines had been developed relative to books and periodicals. Shortly after that work was completed and those guidelines were forwarded to your subcommittee, representatives of the undersigned music organizations met together with representatives of the Ad Hoc Committee on Copyright Law Revision to draft guidelines relative to music. "We are very pleased to inform you that the discussions thus have been fruitful on the guidelines which have been developed. Since private music teachers are an important factor in music education, due consideration has been given to the concerns of that group. "We trust that this will be helpful in the report on the bill to clarify Fair Use as it applies to music." The text of the guidelines accompanying this letter is as follows: GUIDELINES FOR EDUCATIONAL USES OF MUSIC The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of HR 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future, and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use. A. Permissible Uses 1. Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course. 2. For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section [1], movement or aria, but in no case more than 10 percent of the whole work. The number of copies shall not exceed one copy per pupil. [2] 3. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist. 4. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher. 5. A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.) B. Prohibitions 1. Copying to create or replace or substitute for anthologies, compilations or collective works. 2. Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material. 3. Copying for the purpose of performance, except as in A(1) above. 4. Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above. 5. Copying without inclusion of the copyright notice which appears on the printed copy. (iv) Discussion of Guidelines The Committee appreciates and commends the efforts and the cooperative ancl reasonable spirit of the parties who achieved the agreed guidelines on books and periodicals and on music. Representatives of the American Association of University Professors and of the Association of American Law Schools have written to the Committee strongly criticizing the guidelines, particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the university and graduate level. However, the Committee notes that the Ad Hoc group did include representatives of higher education, that the stated "purpose of the . . . guidelines is to state the minimum and not the maximum standards of educational fair use" and that the agreement acknowledges "there may be instances in which copying which does not fall within the guidelines . . . may nonetheless be permitted under the criteria of fair use." The Committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use. Teachers will know that copying within the guidelines is fair use. Thus, the guidelines serve the purpose of fulfilling the need for greater certainty and protection for teachers. The Committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate, the parties will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months. c. House Report: Additional Excerpts ================================================================= Under the heading "Reproduction and uses for other purposes," the House Report, at pages 72-74, parallels much of the material appearing at pages 65-67 of the Senate Report under the same heading, but with some differences. ================================================================= The concentrated attention given the fair use provision in the context of classroom teaching activities should not obscure its application in other areas. It must be emphasized again that the same general standards of fair use are applicable to all kinds of uses of copyrighted material, although the relative weight to be given them will differ from case to case. * * * A problem of particular urgency is that of preserving for posterity prints of motion pictures made before 1942. Aside from the deplorable fact that in a great many cases the only existing copy of a film has been deliberately destroyed, those that remain are in immediate danger of disintegration; they were printed on film stock with a nitrate base that will inevitably decompose in time. The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of archival preservation certanly falls within the scope of "fair use." * * * During the consideration of the revision bill in the 94th Congress it was proposed that independent newsletters, as distinguished from house organs and publicity or advertising publications, be given separate treatment. It is argued that newsletters are particularly vulnerable to mass photocopying, and that most newsletters have fairly modest circulations. Whether the copying of portions of a newsletter is an act of infringement or a fair use will necessarily turn on the facts of the individual case. However, as a general principle, it seems clear that the scope of the fair use doctrine should be considerably narrower in the case of newsletters than in that of either mass-circulation periodicals or scientific journals. The commercial nature of the user is a significant factor in such cases: Copying by a profit-making user of even a small portion of a newsletter may have a significant impact on the commercial market for the work. The Committee has examined the use of excerpts from copyrighted works in the art work of calligraphers. The committee believes that a single copy reproduction of an excerpt from a copyrighted work by a calligrapher for a single client does not represent an infringement of copyright. Likewise, a single reproduction of excerpts from a copyrighted work by a student calligrapher or teacher in a learning situation would be a fair use of the copyrighted work. The Register of Copyrights has recommended that the committee report describe the relationship between this section and the provisions of section 108 relating to reproduction by libraries and archives. The doctrine of fair use applies to library photocopying, and nothing contained in section 108 "in any way affects the right of fair use." No provision of section 108 is intended to take away any rights existing under the fair use doctrine. To the contrary, section 108 authorizes certain photocopying practices which may not qualify as a fair use. The criteria of fair use are necessarily set forth in general terms. In the application of the criteria of fair use to specific photocopying practices of libraries, it is the intent of this legislation to provide an appropriate balancing of the rights of creators, and the needs of users. 3. Excerpts From Conference Report on Section 107 ==================================================================== The following excerpt is reprinted from the Report of the Conference Committee on the new copyright law (H.R. Rep. No. 94-1733, page 70). ==================================================================== FAIR USE Senate bill The Senate bill, in section 107, embodied express statutory recognition of the judicial doctrine that the fair use of a copyrighted work is not an infringement of copyright. It set forth the fair use doctrine, including four criteria for determining its applicability in particular cases, in general terms. House bill The House bill amended section 107 in two respects: in the general statement of the fair use doctrine it added a specific reference to multiple copies for classroom use, and it amplified the statement of the first of the criteria to be used in judging fair use (the purpose and character of the use) by referring to the commercial nature or nonprofit educational purpose of the use. Conference substitute The conference substitute adopts the House amendments. The conferees accept as part of their understanding of fair use the Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with respect to books and periodicals appearing at pp. 68-70 of the House Report (H. Rept. No. 94-1476, as corrected at p. H 10727 of the Congressional Record for September 21, 1976), and for educational uses of music appearing at pp. 70-71 of the House report, as amended in the statement appearing at p. H 10875 of the Congressional Record of September 22, 1976. The conferees also endorse the statement concerning the meaning of the word "teacher" in the guidelines for books and periodicals, and the application of fair use in the case of use of television programs within the confines of a nonprofit educational institution for the deaf and hearing impaired, both of which appear on p. H 10875 of the Congressional Record of September 22, 1976. 4. Excerpts From Congressional Debates ================================================================== The following excerpts are reprinted from the Congressional Record of September 22, 1976, including statements by Mr. Kastenmeier (Chairman of the House Judiciary Subcommittee responsible for the bill) on the floor of the House of Representatives. ================================================================== MR. KASTENMElER. * * * Mr. Chairman, before concluding my remarks I would like to discuss several questions which have been raised concerning the meaning of several provisions of S. 22 as reported by the House Judiciary Committee and of statements in the committee's report, No. 94-1476. * * * Another question involves the reference to "teacher" in the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions" reproduced at pages 68-70 of the committee's report No. 94-1476 in connection with section 107. It has been pointed out that, in planning his or her teaching on a day-to-day basis in a variety of educational situations, an individual teacher will commonly consult with instructional specialists on the staff of the school, such as reading specialists, curriculum specialists, audiovisual directors, guidance counselors, and the like. As long as the copying meets all of the other criteria laid out in the guidelines, including the requirements for spontaneity and the prohibition against the copying being directed by higher authority, the committee regards the concept of "teacher" as broad enough to include instructional specialists working in consultation with actual instructors. Also in consultation with section 107, the committee's attention has been directed to the unique educational needs and problems of the approximately 50,000 deaf and hearing-impaired students in the United States, and the inadequacy of both public and commercial television to serve their educational needs. It has been suggested that, as long as clear-cut constraints are imposed and enforced, the doctrine of fair use is broad enough to permit the making of an off-the-air fixation of a television program within a non-profit educational institution for the deaf and hearing impaired, the reproduction of a master and a work copy of a captioned version of the original fixation, and the performance of the program from the work copy within the confines of the institution. In identifying the constraints that would have to be imposed within an institution in order for these activities to be considered as fair use, it has been suggested that the purpose of the use would have to be non-commercial in every respect, and educational in the sense that it serves as part of a deaf or hearing-impaired student's learning environment within the institution, and that the institution would have to insure that the master and work copy would remain in the hands of a limited number of authorized personnel within the institution, would be responsible for assuring against its unauthorized reproduction or distribution, or its performance or retention for other than educational purposes within the institution. Work copies of captioned programs could be shared among institutions for the deaf abiding by the constraints specified. Assuming that these constraints are both imposed and enforced, and that no other factors intervene to render the use unfair, the committee believes that the activities described could reasonably be considered fair use under section 107. * * * Mr. Chairman, because of the complexity of this bill and the delicate balances which it creates among competing economic interests, the committee will resist extensive amendment of this bill. On behalf of the committee I would urge all of my colleagues to vote favorably on Sec. 22. Mr. SKUBlTZ. Mr. Chairman, will the gentleman yield? Mr. KASTENMEIER. I am happy to yield to my friend, the gentleman from Kansas. Mr. SKUBITZ. Mr. Chairman, I thank my friend, the gentleman from Wisconsin, for yielding. Mr. Chairman, I have received a great deal of mail from the schoolteachers in my district who are particularly concerned about section 107--fair use--the fair use of copyrighted material. Having been a former schoolteacher myself, I believe they make a good point and there is a sincere fear on their part that, because of the vagueness or ambiguity in the bill's treatment of the doctrine of fair use, they may subject themselves to liability for an unintentional infringement of copyright when all they were trying to do was the job for which they were trained. The vast majority of teachers in this country would not knowingly infringe upon a person's copyright, but, as any teacher can appreciate, there are times when information is needed and is available, but it may be literally impossible to locate the right person to approve the use of that material and the purchase of such would not be feasible and, in the meantime, the teacher may have lost that "teachable moment." Did the subcommittee take these problems into consideration and did they do anything to try and help the teachers to better understand section 107? Have the teachers been protected by this section 107? Mr. KASTENMElER. Mr. Chairman, in response to the gentleman's question and his observations preceding the question, I would say, indeed they have. Over the years this has been one of the most difficult questions. It is a problem that I believe has been very successfully resolved. Section 107 on "Fair Use" has, of course, restated four standards, and these standards are, namely: The purpose and character of the use of the material; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. These are the four "Fair Use" criteria. These alone were not adequate to guide teachers, and I am sure the gentleman from Kansas (Mr. SKUBITZ) understands that as a schoolteacher himself. Therefore, the educators, the proprietors, and the publishers of educational materials did, at the committee's long insistence, get together. While there were many fruitless meetings, they did finally get together. Mr. Chairman, I will draw the gentleman's attention to pages 65 through 74 in the report which contain extensive guidelines for teachers. I am very happy to say that there was an agreement reached between teachers and publishers of educational material, and that today the National Education Association supports the bill, and it has, in fact, sent a telegram which at the appropriate time I will make a part of the RECORD and which requests support for the bill in its present form, believing that it has satisfied the needs of the teachers: *** NATIONAL EDUCATION ASSOCIATION, Washington, D.C., September 10, 1976. National Education Association urgently requests your support of the Copyright Revision bill, H.R. 2223, as reported by the Judiciary Committee. This compromise effort represents a major breakthrough in establishing equitable legal guidelines for the use of copyright materials for instructional and research purposes. We ask your support of the committee bill without amendments. JAMES W. GREEN, Assistant Director for Legislation. *** Mr. SKUBITZ. Mr. Chairman, if the gentleman will yield further, then the NEA is satisfied with the language in the bill as it now stands; is that correct? Mr. KASTENMEIER. The gentleman is correct. Mr. SKUBlTZ. Mr. Chairman, I thank the gentleman. ----------------------------------------- D. REPRODUCTION BY LIBRARIES AND ARCHIVES ----------------------------------------- 1. Text of Section 108 =============================================================== The following is a reprint of the entire text of section 108 of title 17, United States Code. =============================================================== Section 108. Limitations on exclusive rights: *Reproduction by libraries and archives* (a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, or to distribute such copy or phonorecord, under the conditions specified by this section, if-- (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copyright. (b) The rights of reproduction and distribution under this section apply to a copy or phonorecord of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phonorecord reproduced is currently in the collections of the library or archives. (c) The right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. (d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if-- (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. (e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives. has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if-- (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. (f) Nothing in this section-- (1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law; (2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107; (3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or (4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections. (g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee-- (1) is aware or has substaiitial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or (2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work. (h) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e). 2. Excerpts From Senate Report on Section 108 =================================================================== The following excerpts are reprinted from the 1975 Senate Report on the new copyright law (S. Rep. No. 94-473, pages 67-71). Where the discussions of particular points are generally similar in the two Reports, the passages from the later House Report are reprinted in this booklet. Where the discussion of particular points is substantially different, passages from both Reports are reprinted. =================================================================== a. Senate Report: Discussion of Libraries and Archives in Profit-Making Institutions The limitation of section 108 to reproduction and distribution by libraries and archives "without any purpose of direct or indirect commercial advantage" is intended to preclude a library or archives in a profit-making organization from providing photocopies of copyrighted materials to employees engaged in furtherance of the organization's commercial enterprise, unless such copying qualifies as a fair use, or the organization has obtained the necessary copyright licenses. A commercial organization should purchase the number of copies of a work that it requires, or obtain the consent of the copyright owner to the making of the photocopies. b. Senate Report: Discussion of Multiple Copies and Systematic Reproduction *Multiple copies and systematic reproduction* Subsection (g) provides that the rights granted by this section extend only to the "isolated and unrelated reproduction of a single copy," but this section does not authorize the related or concerted reproduction of multiple copies of the same material whether made on one occasion or over a period of time, and whether intended for aggregate use by one individual or for separate use by the individual members of a group. For example, if a college professor instructs his class to read an article from a copyrighted journal, the school library would not be permitted, under subsection (g), to reproduce copies of the article for the members of the class. Subsection (g) also provides that section 108 does not authorize the systematic reproduction or distribution of copies or phonorecords of articles or other contributions to copyrighted collections or periodicals or of small parts of other copyrighted works whether or not multiple copies are reproduced or distributed. Systematic reproduction or distribution occurs when a library makes copies of such materials available to other libraries or to groups of users under formal or informal arrangements whose purpose or effect is to have the reproducing library serve as their source of such material. Such systematic reproduction and distribution, as distinguished from isolated and unrelated reproduction or distribution, may substitute the copies reproduced by the source library for subscriptions or reprints or other copies which the receiving libraries or users might otherwise have purchased for themselves, from the publisher or the licensed reproducing agencies. While it is not possible to formulate specific definitions of "systematic copying," the following examples serve to illustrate some of the copying prohibited by subsection (g). (1) A library with a collection of journals in biology informs other libraries with similar collections that it will maintain and build its own collection and will make copies of articles from these journals available to them and their patrons on request. Accordingly, the other libraries discontinue or refrain from purchasing subscriptions to these journals and fulfill their patrons' requests for articles by obtaining photocopies from the source library. (2) A research center employing a number of scientists and technicians subscribes to one or two copies of needed periodicals. By reproducing photocopies of articles the center is able to make the material in these periodicals available to its staff in the same manner which otherwise would have required multiple subscriptions. (3) Several branches of a library system agree that one branch will subscribe to particular journals in lieu of each branch purchasing its own subscriptions, and the one subscribing branch will reproduce copies of articles from the publication for users of the other branches. The committee believes that section 108 provides an appropriate statutory balancing of the rights of creators and the needs of users. However, neither a statute nor legislative history can specify precisely which library photocopying practices constitute the making of "single copies" as distinguished from "systematic reproduction." Isolated single spontaneous requests must be distinguished from "systematic reproduction." The photocopying needs of such operations as multi-county regional systems must be met. The committee therefore recommends that representatives of authors, book and periodical publishers and other owners of copyrighted material meet with the library community to formulate photocopying guidelines to assist library patrons and employees. Concerning library photocopying practices not authorized by this legislation, the committee recommends that workable clearance and licensing procedures be developed. It is still uncertain how far a library may go under the Copyright Act of 1909 in supplying a photocopy of copyrighted material in its collection. The recent case of The Williams and Wilkins Company v. The United States failed to significantly illuminate the application of the fair use doctrine to library photocopying practices. Indeed, the opinion of the Court of Claims said the Court was engaged in "a 'holding Operation' in the interim period before Congress enacted its preferred solution." While the several opinions in the Wilkins case have given the Congress little guidance as to the current state of the law on fair use, these opinions provide additional support for the balanced resolution of the photocopying issue adopted by the Senate last year in S. 1361 and preserved in section 108 of this legislation. As the Court of Claims opinion succinctly stated "there is much to be said on all sides." In adopting these provisions on library photocopying, the committee is aware that through such programs as those of the National Commission on Libraries and Information Science there will be a significant evolution in the functioning and services of libraries. To consider the possible need for changes in copyright law and procedures as a result of new technology, a National Commission on New Technological Uses of Copyrighted Works has been established (Public Law 93-573). 3. Excerpts From House Report on Section 108 ==================================================================== The following excerpts are reprinted from the House Report on the new copyright law (H.R. Rep. No. 94-1476, pages 74-79). All of the House Report's discussion of section 108 is reprinted here; similarities and differences between the House and Senate Reports on particular points will be noted below. ==================================================================== a. House Report: Introductory Statement ===================================================================== This paragraph is substantially the same in the Senate and House Reports. ===================================================================== Notwithstanding the exclusive rights of the owners of copyright, section 108 provides that under certain conditions it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce or distribute not more than one copy or phonorecord of a work, provided (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage and (2) the collections of the library or archives are open to the public or available not only to researchers affiliated with the library or archives, but also to other persons doing research in a specialized field, and (3) the reproduction or distribution of the work includes a notice of copyright. b. House Report: Discussion of Libraries and Archives in Profit-Making Institutions =================================================================== The Senate and House Reports differ substantially on this point. The Senate Report's discussion is reprinted at page 17, above. =================================================================== Under this provision, a purely commercial enterprise could not establish a collection of copyrighted works, call itself a library or archive, and engage in for-profit reproduction and distribution of photocopies. Similarly, it would not be possible for a non-profit institution, by means of contractual arrangements with a commercial copying enterprise, to authorize the enterprise to carry out copying and distribution functions that would be exempt if conducted by the non-profit institution itself. The reference to "indirect commercial advantage" has raised questions as to the status of photocopying done by or for libraries or archival collections within industrial, profitmaking, or proprietary institutions (such as the research and development departments of chemical, pharmaceutical, automobile, and oil corporations, the library of a propriatary hospital, the collections owned by a law or medical partnership, etc.). There is a direct interrelationship between this problem and the prohibitions against "multiple" and "systematic" photocopying in section 108 (g) (1) and (2). Under section 108, a library in a profit-making organization would not be authorized to: (a) use a single subscription or copy to supply its employees with multiple copies of material relevant to their work; or (b) use a single subscription or copy to supply its employees, on request, with single copies of material relevant to their work, where the arrangement is "systematic" in the sense of deliberately substituting photocopying for subscription or purchase; or (c) use "interlibrary loan" arrangements for obtaining photocopies in such aggregate quantities as to substitute for subscriptions or purchase of material needed by employees in their work. Moreover, a library in a profit-making organization could not evade these obligations by installing reproducing equipment on its premises for unsupervised use by the organization's staff. Isolated, spontaneous making of single photocopies by a library in a for-profit organization, without any systematic effort to substitute photocopying for subscriptions or purchases, would be covered by section 108, even though the copies are furnished to the employees of the organization for use in their work. Similarly, for-profit libraries could participate in interlibrary arrangements for exchange of photocopies, as long as the reproduction or distribution was not "systematic." These activities, by themselves, would ordinarily not be considered "for direct or indirect commercial advantage," since the "advantage" referred to in this clause must attach to the immediate commercial motivation behind the reproduction or distribution itself, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located. On the other hand, section 108 would not excuse reproduction or distribution if there were a commercial motive behind the actual making or distributing of the copies, if multiple copies were made or distributed, or if the photocopying activities were "systematic" in the sense that their aim was to substitute for subscriptions or purchases. c. House Report: Rights of Reproduction and Distribution Under Section 108 ==================================================================== The following paragraphs are closely similar in the Senate and House Reports. ==================================================================== The rights of reproduction and distribution under section 108 apply in the following circumstances: *Archival reproductions* Subsection (b) authorizes the reproduction and distribution of a copy or phonorecord of an unpublished work duplicated in facsimile form solely for purposes of preservation and security, or for deposit for research use in another library or archives, if the copy or phonorecord reproduced is currently in the collections of the first library or archives. Only unpublished works could be reproduced under this exemption, but the right would extend to any type of work, including photographs, motion pictures and sound recordings. Under this exemption, for example, a repository could make photocopies of manuscripts by microfilm or electrostatic process, but could not reproduce the work in "machine-readable" language for storage in an information system. *Replacement of damaged copy* Subsection (c) authorizes the reproduction of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. The scope and nature of a reasonable investigation to determine that an unused replacement cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly-known trade sources in the United States, and in the normal situation also to the publisher or other copyright owner (if such owner can be located at the address listed in the copyright registration), or an authorized reproducing service. *Articles and small excerpts* Subsection (d) authorizes the reproduction and distribution of a copy of not more than one article or other contribution to a copyrighted collection or periodical issue, or of a copy or phonorecord of a small part of any other copyrighted work. The copy or phonorecord may be made by the library where the user makes his request or by another library pursuant to an interlibrary loan. It is further required that the copy become the property of the user, that the library or archives have no notice that the copy would be used for any purposes other than private study, scholarship or research, and that the library or archives display prominently at the place where reproduction requests are accepted, and includes in its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. *Out-of-print works* Subsection (e) authorizes the reproduction and distribution of a copy or phonorecord of an entire work under certain circumstances, if it has been established that a copy cannot be obtained at a fair price. The copy may be made by the library where the user makes his request or by another library pursuant to an interlibrary loan. The scope and nature of a reasonable investigation to determine that an unused copy cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly-known trade sources in the United States, and in the normal situation also to the publisher or other copyright owner (if the owner can be located at the address listed in the copyright registration), or an authorized reproducing service. It is further required that the copy become the property of the user, that the library or archives have no notice that the copy would be used for any purpose other than private study, scholarship, or research, and that the library or archives display prominently at the place where reproduction requests are accepted, and include on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. d. House Report: General Exemptions for Libraries and Archives =================================================================== Parts of the following paragraphs are substantially similar in the Senate and House Reports. Differences in the House Report on certain points reflect certain amendments in section 108(f) and elsewhere in the Copyright Act. =================================================================== *General exemptions* Clause (1) of subsection (f) specifically exempts a library or archives or its employees from liability for the unsupervised use of reproducing equipment located on its premises, provided that the reproducing equipment displays a notice that the making of a copy may be subject to the copyright law. Clause (2) of subsection (f) makes clear that this exemption of the library or archives does not extend to the person using such equipment or requesting such copy if the use exceeds fair use. Insofar as such person is concerned the copy or phonorecord made is not considered "lawfully" made for purposes of sections 109, 110 or other provisions of the title. Clause (3) provides that nothing in section 108 is intended to limit the reproduction and distribution by lending of a limited number of copies and excerpts of an audio-visual news program. This exemption is intended to apply to the daily newscasts of the national television networks, which report the major events of the day. It does not apply to documentary (except documentary programs involving news reporting as that term is used in section 107), magazine-format or other public affairs broadcasts dealing with subjects of general interest to the viewing public. The clause was first added to the revision bill in 1974 by the adoption of an amendment proposed by Senator Baker. It is intended to permit libraries and archives, subject to the general conditions of this section, to make off-the-air videotape recordings of daily network newscasts for limited distribution to scholars and researchers for use in research purposes. As such, it is an adjunct to the American Television and Radio Archive established in Section 113 of the Act which will be the principal repository for television broadcast material, including news broadcasts. The inclusion of language indicating that such material may only be distributed by lending by the library or archive is intended to preclude performance, copying, or sale, whether or not for profit, by the recipient of a copy of a television broadcast taped off-the-air pursuant to this clause. Clause (4), in addition to asserting that nothing contained in section 108 "affects the right of fair use as provided by section 107," also provides that the right of reproduction granted by this section does not override any contractual arrangements assumed by a library or archives when it obtained a work for its collections. For example, if there is an express contractual prohibition against reproduction for any purpose, this legislation shall not be construed as justifying a violation of the contract. This clause is intended to encompass the situation where an individual makes papers, manuscripts or other works available to a library with the understanding that they will not be reproduced. It is the intent of this legislation that a subsequent unlawful use by a user of a copy or phonorecord of a work lawfully made by a library, shall not make the library liable for such improper use. e. House Report: Discussion of Multiple Copies and Systematic Reproduction ===================================================================== The Senate and House Reports differ substantially on this point. The Senate Report's discussion is reprinted at page 17. above. ===================================================================== *Multiple copies and systematic reproduction* Subsection (g) provides that the rights granted by this section extend only to the "isolated and unrelated reproduction of a single copy or phonorecord of the same material on separate occasions." However, this section does not authorize the related or concerted reproduction of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one individual or for separate use by the individual members of a group. With respect to material described in subsection (d)--articles or other contributions to periodicals or collections, and small parts of other copyrighted works--subsection (g) (2) provides that the exemptions of section 108 do not apply if the library or archive engages in "systematic reproduction or distribution of single or multiple copies or phonorecords." This provision in S.22 provoked a storm of controversy, centering around the extent to which the restrictions on "systematic" activities would prevent the continuation and development of interlibrary networks and other arrangements involving the exchange of photocopies. After thorough consideration, the Committee amended section 108 (g) (2) to add the following proviso: Provided, that nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work. In addition, the Committee added a new subsection (i) to section 108, requiring the Register of Copyrights, five years from the effective date of the new Act and at five year intervals thereafter, to report to Congress upon "the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users," and to make appropriate legislative or other recommendations. As noted in connection with section 107, the Committee also amended section 504(c) in a way that would insulate librarians from unwarranted liability for copyright infringement; this amendment is discussed below. The key phrases in the Committee's amendment of section 108(g) (2) are "aggregate quantities" and "substitute for a subscription to or purchase of" a work. To be implemented effectively in practice, these provisions will require the development and implementation of more-or-less specific guidelines establishing criteria to govern various situations. The National Commission on New Technological Uses of Copyrighted Works (CONTU) offered to provide good offices in helping to develop these guidelines. This offer was accepted and, although the final text of guidelines has not yet been achieved, the Committee has reason to hope that, within the next month, some agreement can be reached on an initial set of guidelines covering practices under section 108(g)(2). f. House Report: Discussion of Works Excluded ================================================================== The House Report's discussion of section 108(h) is longer than the corresponding paragraph in the Senate Report, and reflects certain amendments in the subsection. ================================================================== *Works excluded* Subsection (h) provides that the rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than "an audiovisual work dealing with news." The latter term is intended as the equivalent in meaning of the phrase "audio-visual news program" in section 108 (f) (3). The exclusions under subsection (h) do not apply to archival reproduction under subsection (b), to replacement of damaged or lost copies or phonorecords under subsection (c), or to "pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e)." Although subsection (h) generally removes musical, graphic, and audiovisual works from the specific exemptions of section 108, it is important to recognize that the doctrine of fair use under section 107 remains fully applicable to the photocopying or other reproduction of such works. In the case of music, for example, it would be fair use for a scholar doing musicological research to have a library supply a copy of a portion of a score or to reproduce portions of a phonorecord of a work. Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes. 4. Excerpts From Conference Report ===================================================================== The following excerpt is reprinted from the Report of the Conference Committee on the new copyright law (H.R. Rep. No. 94-1733, pages 70-74). ===================================================================== a. Conference Report: Introductory Discussion of Section 108 REPRODUCTION BY LIBRARIES AND ARCHIVES Senate bill Section 108 of the Senate bill dealt with a variety of situations involving photocopying and other forms of reproduction by libraries and archives. It specified the conditions under which single copies of copyrighted material can be noncommercially reproduced and distributed, but made clear that the privileges of a library or archives under the section do not apply where the reproduction or distribution is of multiple copies or is "systematic." Under subsection (f), the section was not to be construed as limiting the reproduction and distribution, by a library or archive meeting the basic criteria of the section, of a limited number of copies and excerpts of an audiovisual news program. House bill The House bill amended section 108 to make clear that, in cases involving interlibrary arrangements for the exchange of photocopies, the activity would not be considered "systematic" as long as the library or archives receiving the reproductions for distribution does not do so in such aggregate quantities as to substitute for a subscription to or purchase of the work. A new subsection (i) directed the Register of Copyrights, by the end of 1982 and at five-year intervals thereafter, to report on the practical success of the section in balancing the various interests, and to make recommendations for any needed changes. With respect to audiovisual news programs, the House bill limited the scope of the distribution privilege confirmed by section 108 (f) (3) to cases where the distribution takes the form of a loan. b. Conference Report: Conference Committee Discussion of CONTU Guidelines on Photocopying and Interlibrary Arrangements Conference substitute The conference substitute adopts the provisions of section 108 as amended by the House bill. In doing so, the conferees have noted two letters dated September 22, 1976, sent respectively to John L. McClellan, Chairman of the Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights, and to Robert W. Kastenmeier, Chairman of the House Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of Justice. The letters, from the Chairman of the National Commission on New Technological Uses of Copyrighted Works (CONTU), Stanley H. Fuld, transmitted a document consisting of "guidelines interpreting the provision in subsection 108 (g) (2) of S. 22, as approved by the House Committee on the Judiciary." Chairman Fuld's letters explain that, following lengthy consultations with the parties concerned, the Commission adopted these guidelines as fair and workable and with the hope that the conferees on S. 22 may find that they merit inclusion in the conference report. The letters add that, although time did not permit securing signatures of the representatives of the principal library organizations or of the organizations representing publishers and authors on these guidelines, the Commission had received oral assurances from these representatives that the guidelines are acceptable to their organizations. The conference committee understands that the guidelines are not intended as, and cannot be considered, explicit rules or directions governing any and all cases, now or in the future. It is recognized that their purpose is to provide guidance in the most commonly-encountered interlibrary photocopying situations, that they are not intended to be limiting or determinative in themselves or with respect to other situations, and that they deal with an evolving situation that will undoubtedly require their continuous reevaluation and adjustment. With these qualifications, the conference committee agrees that the guidelines are a reasonable interpretation of the proviso of section 108 (g) (2) in the most common situations to which they apply today. c. Conference Report: Reprint of CONTU Guidelines on Photocopying and Interlibrary Arrangements The text of the guidelines follows: PHOTOCOPYING--INTERLIBRARY ARRANGEMENTS INTRODUCTION Subsection 108(g)(2) of the bill deals, among other things, with limits on interlibrary arrangements for photocopying. It prohibits systematic photocopying of copyrighted materials but permits interlibrary arrangements "that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work." The National Commission on New Technological Uses of Copyrighted Works offered its good offices to the House and Senate subcommittees in bringing the interested parties together to see if agreement could be reached on what a realistic definition would be of "such aggregate quantities." The Commission consulted with the parties and suggested the interpretation which follows, on which there has been substantial agreement by the principal library, publisher, and author organizations. The Commission considers the guidelines which follow to be a workable and fair interpretation of the intent of the proviso portion of subsection 108(g)(2). These guidelines are intended to provide guidance in the application of section 108 to the most frequently encountered interlibrary case: a library's obtaining from another library, in lieu of interlibrary loan, copies of articles from relatively recent issues of periodicals--those published within five years prior to the date of the request. The guidelines do not specify what aggregate quantity of copies of an article or articles published in a periodical, the issue date of which is more than five years prior to the date when the request for the copy thereof is made, constitutes a substitute for a subscription to such periodical. The meaning of the proviso to subsection 108(g)(2) in such case is left to future interpretation. The point has been made that the present practice on interlibrary loans and use of photocopies in lieu of loans may be supplemented or even largely replaced by a system in which one or more agencies or institutions, public or private, exist for the specific purpose of providing a central source for photocopies. Of course, these guidelines would not apply to such a situation. GUIDELINES FOR THE PROVISO OF SUBSECTION 108 (G)(2) 1. As used in the proviso of subsection 108 (g) (2), the words ". . . such aggregate quantities as to substitute for a subscription to or purchase of such work" shall mean: (a) with respect to any given periodical (as opposed to any given issue of a periodical), filled requests of a library or archives (a "requesting entity") within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request. These guidelines specifically shall not apply, directly or indirectly, to any request of a requesting entity for a copy or copies of an article or articles published in any issue of a periodical, the publication date of which is more than five years prior to the date when the request is made. These guidelines do not define the meaning, with respect to such a request, of ". . . such aggregate quantities as to substitute for a subscription to [such periodical]". (b) With respect to any other material described in subsection 108 (d), (including fiction and poetry), filled requests of a requesting entity within any calendar year for a total of six or more copies or phonorecords of or from any given work (including a collective work) during the entire period when such material shall be protected by copyright. 2. In the event that a requesting entity-- (a) shall have in force or shall have entered an order for a subscription to a periodical, or (b) has within its collection, or shall have entered an order for, a copy or phonorecord of any other copyrighted work, material from either category of which it desires to obtain by copy from another library or archives (the "supplying entity"), because the material to be copied is not reasonably available for use by the requesting entity itself, then the fulfillment of such request shall be treated as though the requesting entity made such copy from its own collection. A library or archives may request a copy or phonorecord from a supplying entity only under those circumstances where the requesting entity would have been able, under the other provisions of section 108, to supply such copy from materials in its own collection. 3. No request for a copy or phonorecord of any material to which these guidelines apply may be fulfilled by the supplying entity unless such request is accompanied by a representation by the requesting entity that the request was made in conformity with these guidelines. 4. The requesting entity shall maintain records of all requests made by it for copies or phonorecords of any materials to which these guidelines apply and shall maintain records of the fulfillment of such requests, which records shall be retained until the end of the third complete calendar year after the end of the calendar year in which the respective request shall have been made. 5. As part of the review provided for in subsection 108 (i), these guidelines shall be reviewed not later than five years from the effective date of this bill. d. Conference Report: Discussion of "Audiovisual News Program" The conference committee is aware that an issue has arisen as to the meaning of the phrase "audiovisual news program" in section 108(f)(3). The conferees believe that, under the provision as adopted in the conference substitute, a library or archives qualifying under section 108 (a) would be free, without regard to the archival activities of the Library of Congress or any other organization, to reproduce, on videotape or any other medium of fixation or reproduction, local, regional, or network newscasts, interviews concerning current news events, and on-the-spot coverage of news events, and to distribute a limited number of reproductions of such a program on a loan basis. e. Conference Report: Discussion of Libraries and Archives in Profit-Making Institutions Another point of interpretation involves the meaning of "indirect commercial advantage," as used in section 108(a)(1), in the case of libraries or archival collections within industrial, profit-making, or proprietary institutions. As long as the library or archives meets the criteria in section 108 (a) and the other requirements of the section, including the prohibitions against multiple and systematic copying in subsection (g), the conferees consider that the isolated, spontaneous making of single photocopies by a library or archives in a for-profit organization without any commercial motivation, or participation by such a library or archives in interlibrary arrangements, would come within the scope of section 108. 5. Copyright Office Regulations Under Section 108 ================================================================= The following is the text of regulations adopted by the Copyright Office to implement sections 108(d)(2) and 108(e) of the new copyright law (37 Code of Federal Regulations Sec. 201.14). ================================================================= Section 201.14 Warnings of copyright for use by certain libraries and archives. (a) Definitions. (1) A "Display Warning of Copyright" is a notice under paragraphs (d)(2) and (e)(2) of section 108 of Title 17 of the United States Code as amended by Pub. L. 94-553. As required by those sections the "Display Warning of Copyright" is to be displayed at the place where orders for copies or phonorecords are accepted by certain libraries and archives. (2) An "Order Warning of Copyright" is a notice under paragraphs (d) (2) and (e)(2) of section 108 of Title 17 of the United States Code as amended by Pub. L. 94-553. As required by those sections the "Order Warning of Copyright" is to be included on printed forms supplied by certain libraries and archives and used by their patrons for ordering copies or phonorecords. (b) Contents. A Display Warning of Copyright and an Order Warning of Copyright shall consist of a verbatim reproduction of the following notice, printed in such size and form and displayed in such manner as to comply with paragraph (c) of this section: NOTICE WARNING CONCERNING COPYRIGHT RESTRICTIONS The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law. (c)Form and Manner of Use. (1) A Display Warning of Copyright shall be printed on heavy paper or other durable material in type at least 18 points in size, and shall be displayed prominently, in such manner and location as to be clearly visible, legible, and comprehensible to a casual observer within the immediate vicinity of the place where orders are accepted. (2) An Order Warning of Copyright shall be printed within a box located prominently on the order form itself, either on the front side of the form or immediately adjacent to the space calling for the name or signature of the person using the form. The notice shall be printed in type size no smaller than that used predominantly throughout the form, and in no case shall the type size be smaller than 8 points. The notice shall be printed in such manner as to be clearly legible, comprehensible, and readily apparent to a casual reader of the form. ----------------------------- E. LIABILITY FOR INFRINGEMENT ----------------------------- 1. Text of Section 504 ===================================================================== The following is a reprint of the entire text of section 504 of title 17, United States Code. The special provisions affecting librarians and educators are in subsection (c)(2). ===================================================================== Section 504. Remedies for infringement: Damages and profits. [3] (a) IN GENERAL.--Except as otherwise provided by this title, an infringer of copyright is liable for either-- (1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). (b) ACTUAL DAMAGES AND PROFITS.--The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. (c) STATUTORY DAMAGES.-- (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $100,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the non-profit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work. 2. Excerpts From House Report on Section 504 ===================================================================== The following excerpts are reprinted from the House Report on the new copyright law (H.R. Rep. No. 94-1476, pages 161-163). Material not of immediate interest to librarians and educators has been omitted. Much of the corresponding discussion in the Senate Report (S. Rep. No. 94-473, pages 143-145) is substantially the same; the House Report's discussion of statutory damages applicable to librarians and educators is new. ===================================================================== IN GENERAL A cornerstone of the remedies sections and of the bill as a whole is section 504, the provision dealing with recovery of actual damages, profits, and statutory damages. The two basic aims of this section are reciprocal and correlative: (1) to give the courts specific unambiguous directions concerning monetary awards, thus avoiding the confusion and uncertainty that have marked the present law on the subject, and, at the same time, (2) to provide the courts with reasonable latitude to adjust recovery to the circumstances of the case, thus avoiding some of the artificial or overly technical awards resulting from the language of the existing statute. Subsection (a) lays the groundwork for the more detailed provisions of the section by establishing the liability of a copyright infringer for either "the copyright owner's actual damages and any additional profits of the infringer," or statutory damages. Recovery of actual damages and profits under section 504 (b) or of statutory damages under section 504 (c) is alternative and for the copyright owner to elect; as under the present law, the plaintiff in an infringement suit is not obliged to submit proof of damages and profits and may choose to rely on the provision for minimum statutory damages. However, there is nothing in section 504 to prevent a court from taking account of evidence concerning actual damages and profits in making an award of statutory damages within the range set out in subsection (c). *Actual damages and profits* In allowing the plaintiff to recover "the actual damages suffered by him or her as a result of the infringement," plus any of the infringer's profits "that are attributable to the infringement and are not taken into account in computing the actual damages," section 504 (b) recognizes the different purposes served by awards of damages and profits. Damages are awarded to compensate the copyright owner for losses from the infringement, and profits are awarded to prevent the infringer from unfairly benefiting from a wrongful act.*** *Statutory damages* Subsection (c) of section 504 makes clear that the plaintiff's election to recover statutory damages may take place at any time during the trial before the court has rendered its final judgment. The remainder of clause (1) of the subsection represents a statement of the general rates applicable to awards of statutory damages. Clause (2) of section 504 (c) provides for exceptional cases in which the maximum award of statutory damages could be raised from $10,000 to $50,000, and in which the minimum recovery could be reduced from $250 to $100. The basic principle underlying this provision is that the courts should be given discretion to increase statutory damages in cases of willful infringement and to lower the minimum where the infringer is innocent. The language of the clause makes clear that in these situations the burden of proving willfulness rests on the copyright owner and that of proving innocence rests on the infringer, and that the court must make a finding of either willfulness or innocence in order to award the exceptional amounts. The "innocent infringer" provision of section 504(c)(2) has been the subject of extensive discussion. The exception, which would allow reduction of minimum statutory damages to $100 where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright," is sufficient to protect against unwarranted liability in cases of occasional or isolated innocent infringement, and it offers adequate insulation to users, such as broadcasters and newspaper publishers, who are particularly vulnerable to this type of infringement suit. On the other hand, by establishing a realistic floor for liability, the provision preserves its intended deterrent effect; and it would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant's claim of innocence. In addition to the general "innocent infringer" provision clause (2) deals with the special situation of teachers, librarians, archivists, and public broadcasters, and the non-profit institutions of which they are a part. Section 504 (c)(2) provides that, where such a person or institution infringes copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant's good faith should rest on the plaintiff. 3. Excerpts From Conference Report on Section 504 ==================================================================== The following excerpts are reprinted from the Report of the Conference Committee on the new copyright law (H.R. Rep. No. 94-1733, pages 79-80). ==================================================================== REMEDIES FOR COPYRIGHT INFRINGEMENT Senate bill Chapter 5 of the Senate bill dealt with civil and criminal infringement of copyright and the remedies for both. Subsection (c) of section 504 allowed statutory damages within a stated dollar range, and clause (2) of that subsection provided for situations in which the maximum could be exceeded and the minimum lowered; the court was given discretion to reduce or remit statutory damages entirely where a teacher, librarian, or archivist believed that the infringing activity constituted fair use.*** House bill Section 504(c)(2) of the House bill required the court to remit statutory damages entirely in cases where a teacher, librarian, archivist, or public broadcaster, or the institution to which they belong, infringed in the honest belief that what they were doing constituted fair use.*** Conference substitute The conference substitute adopts the House amendments with respect to statutory damages in section 504(c)(2)*** ---------------------------------------------------------------- F. GUIDELINES FOR OFF-AIR RECORDING OF BROADCAST PROGRAMMING FOR EDUCATIONAL PURPOSES ---------------------------------------------------------------- ==================================================================== The following excerpts are reprinted from the House Report on piracy and counterfeiting amendments (H.R. 97-495, pages 8-9). ==================================================================== In March 1979, Congressman Robert Kastenmeier, Chairman of the House Subcommittee on Courts, Civil Liberties and Administration of Justice, appointed a Negotiating Committee consisting of representatives of educational organizations, copyright proprietors, and creative guilds and unions. The following guidelines reflect the Negotiating Committee's consensus as to the application of "fair use" to the recording, retention, and use of television broadcast programs for educational purposes. They specify periods of retention and use of such off-air recordings in classrooms and similar places devoted to instruction and for homebound instruction. The purpose of establishing these guidelines is to provide standards for both owners and users of copyrighted television programs. (1) The guidelines were developed to apply only to off-air recording by non-profit educational institutions. (2) A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable transmission) and retained by a non-profit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge. (3) Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster, or campus, as well as in the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) day calendar day retention period. "School days" are school session days--not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions--within the forty-five (45) calendar day retention period. (4) Off-air recordings may be made only at the request of, and used by, individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast. (5) A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording. (6) After the first ten (10) consecutive school days, off-air recording may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization. (7) Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations. (8) All copies of off-air recordings must include the copyright notice on the broadcast program as recorded. (9) Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines. -------- ENDNOTES: [1] Corrected from Congressional Record. [2] Editor's Note: As reprinted in the House Report, subsection A.2 of the Music Guidelines had consisted of two separate paragraphs, one dealing with multiple copies and a second dealing with single copies. In his introductory remarks during the House debates on S.22, the Chairman of the House Judiciary Subcommittee, Mr. Kastenmeier, announced that "the report, as printed, does not reflect a subsequent change in the joint guidelines which was described in a subsequent letter to me from a representative of [the signatory organizations]," and provided the revised text of subsection A.2. (122 CONG. REC. H 10875, Sept. 22, 1976). The text reprinted here is the revised text. [3] NOTE: Section 504 was amended in subsection (c) by the Act of October 31, 1988, Pub. L. 100-568, 102 Stat. 2853, 2860. ------------------------------------------------------------------------ Library of Congress Copyright Office 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 http://www.loc.gov/copyright September 1995 - 20,000 WEB REV: June 1998 
7773	----	DIAMOND DUST by K. Kay Shearin (c) K. Kay Shearin 1992 Contact: ks24@georgetown.edu FOREWORD 0: Paragraph 1 I didn't do very much research for this book -- mostly I looked up spellings or dates in a dictionary or my 1972 'Funk & Wagnall's New Encyclopedia', but I also reviewed documents I wrote or received that described events at the time -- because it's an account of what I've seen and experienced myself. Where I've repeated something someone else told me, I've tried to identify that source and the circumstantial evidence that makes me believe it, and I haven't included anything that I don't affirmatively think is true. 0: Paragraph 2 Many of the things I've said here are unflattering to someone, but nothing here is actionable defamation, partly because what I've said is true and partly because it's already been published in transcripts of in-court testimony that are public records. Nobody put me up to writing this, and I can't imagine very many people could be happy that I have, but I wanted the catharsis of packaging these memories into a bundle so I can walk away from it and get on with my life. 0: Paragraph 3 Nearly thirty years ago a mentor said to me, "There are two kinds of people in the world: those who get ulcers and those who give them to others., Which do you want to be?" It took me some years to master the technique, but now I usually manage to get aggravations out of my system instead of brooding on them. Oysters can turn their irritants into pearls, and I'd like to salvage some pearls of wisdom from mine. 0: Paragraph 4 Many of my attitudes were shaped by my mother's sister. My mother's abuse made any healthy relationship between us impossible, so for about ten years from my parents' divorce when I was thirteen, Aunt Ruth was in many ways my real parent. She was amoral and apolitical and a lot like "Auntie Mame," and she taught me to evaluate things for myself and to measure them against my own standards and experience. If she were still alive, she'd be proud of me for writing a book, but she wouldn't understand that it's payment of a moral debt. 0: Paragraph 5 My late Aunt Frances would, though. My father's mother died when I was an infant, so her youngest sister filled the place of a grandmother for me. She was famous within the family for putting the words on people, and her words were often unsuitable for polite society. From her I learned to call a spade a blankety blankety spade and to stand up to anyone who had done me or mine wrong. One of my warmest memories is of the time I blessed Aunt Frances out for an insensitive remark she had made about my father in front of him, and she admitted she had been out of line. That was the rite of passage that marked my arrival into adulthood. 0: Paragraph 6 I believe most problems between people result from a failure to communicate. On the theory that "If you're not part of the solution, you're part of the problem," this book is my effort to communicate. K. Kay Shearin Elsmere, Delaware June 1992 --- CHAPTER I. The lay of the land 1: Paragraph 1 Delaware is the opposite of the old cliche: not much to visit, but a great place to live. To Amtrak passengers in the northeast corridor, it's a station between Baltimore and Philadelphia; to drivers on Interstate 95, it's not even a wide place in the road between Washington and New York; to its residents, it's one of the best-kept secrets around -- a pearl not to be cast before swinish outsiders. 1: Paragraph 2 As nearly as anyone knows, the state's population is somewhere around 700,000. Although it's the second smallest state in area and has only three counties, there is a marked polarity between the relatively urbanized northern tip of the state, where most of the population is concentrated in Wilmington, and what they often call "slower Delaware," usually defined as "below the [Chesapeake & Delaware] canal." 1: Paragraph 3 Someone seeking a symbol of Wilmington to put on souvenirs -- in case anyone would ever want a souvenir of Wilmington -- would probably pick the equestrian statue of Declaration of Independence signer Caesar Rodney that usually stands in Rodney Square, a grassy one-block plaza in the middle of town. He was the hero who had gone home to die but returned to Independence Hall to cast the tie-breaking vote in the Delaware delegation in favor of the Declaration; we're still arguing about whether he died of cancer or syphilis. 1: Paragraph 4 They took his statue down a year or so ago to fix it, and its massive plinth looks like a ruin standing across the street from the Hotel du Pont that takes up most of the block on the west of the Square. The block east of the Square is occupied by the Public Building housing the state trial courts for the county. Facing the Square on its south is the public library, and on its north is the headquarters of Wilmington Trust Company, the favorite bank of the duPont family and E. I. du Pont de Nemours & Company, Inc. Standing in Rodney Square, you're physically less than five miles from New Jersey, ten from Pennsylvania, and fifteen from Maryland, but in most ways you're in a different world. 1: Paragraph 5 Until about two decades ago the duPonts ran Delaware as a company town, and they ran a tight ship. For example, once upon a time du Pont wanted to hire a high-level executive; a candidate and his family passed muster, and he was offered the position. He said the only problem with moving to Delaware was that his daughter was taking ice skating lessons and hoped someday to qualify for the Olympics, and there was no teacher of that caliber in Delaware. Today there are, at the two Olympic-sized rinks down the road from Wilmington in Newark; one is where Calla Urbanski and Rocky Marvel trained for the 1992 Winter Olympics. 1: Paragraph 6 I heard that story in 1974 from the people who interviewed me for a job on the professional staff of the University of Delaware, whose main campus is in Newark. Their theme was that Delaware was, and would remain, the kind of place where I would want to be, because du Pont would always exert its influence to insure that Delaware was the kind of place the kind of people it wanted to attract would want to live. 1: Paragraph 7 They also explained to me that U. of D. was a private, not a public, school because if it were public it would be subject to the federal anti-segregation laws, and nobody wanted that. So in an arrangement that may be unique, and which is often called "semi-private," instead of making the school the state university and having the legislature appropriate money from the general treasury for it, each year the General Assembly votes for a voluntary donation to the private school, on behalf of the taxpayers of Delaware, out of the treasury. 1: Paragraph 8 Partly because of its small size, and partly because of du Pont's historic paternalism, Delaware in general, and Wilmington in particular, don't suffer today from the problems that plague so many parts of our country, especially the major cities. And the problems Delaware does have are largely the result of du Pont's abdication of that r le, leaving the kind of power vacuum that inevitably attracts scoundrels to public office. 1: Paragraph 9 Delaware's economy is, of course, the product of that political situation. Du Pont is by far the greatest economic power in the state, but Hercules Incorporated and ICI Americas Inc. are players, too, especially in Wilmington. Downstate is agricultural, except for the summer shore resorts, just north of the border with Maryland, at the other end of the ferry from Cape May, New Jersey. Peaches and other fruit were a big cash crop early in this century, but a blight killed most of the orchards, some of which are still standing, eerily beautiful, like rows of surreal black skeletons. Today much of the country's scrapple is made in Delaware, but the main agribusiness is the "chicken factories" where poultry is processed and packaged for supermarkets -- some people will tell you lower Delaware is God's country, but many will tell you it's Frank Purdue's. 1: Paragraph 10 Although there is a big Air Force base in Dover, the federal government is a relatively minor economic force, so federal pork barrels don't influence Delaware politics much. State and local governments don't employ a lot of people, and many government employees, even some of the highest elected officials, are allowed to have private employment at the same time, so political pigs have access to slop from other sources, not just the public trough. The office of Attorney General, for example, is established in the state constitution; the AG heads the Department of Justice, is elected in a statewide election every four years, and stands third in line to become governor if something happens to the governor, the lieutenant governor, and the secretary of state. The AG can invalidate state statutes simply by issuing a written opinion, and no criminal complaint can even be filed, much less prosecuted, without the AG's approval; in short, as Delaware's lawyer, the AG has complete control over all legal processes that involve the state government. 1: Paragraph 11 Incumbent AG Charles M. Oberly III, first elected in 1982, shortly started publishing a newsletter as a private business. Questions were raised as to whether that was ethical or even lawful, but Oberly exercised his power to rule it was okay. That's what they mean by, "There's no excuse for losing if you're keeping score." Today that newsletter, which reports the rulings in some cases in Delaware courts, is written by Deputy AGs and typed by secretaries in the Dept. of Justice, both in the course of their public employment. But the subscription money goes to Oberly personally, and although the quality of the newsletter is poor, compared to competing publications, the subscription price is lower, too, because Oberly doesn't have the same production costs as his competitors, and some of his subscribers have told me they see it as legal insurance -- they've noticed the Dept. of Justice is more attentive to the needs of subscribers, and they more often enjoy favorable results in legal proceedings, than nonsubscribers. 1: Paragraph 12 Oberly has rejected offers to purchase his newsletter business for more than it's worth, because he wants to keep that ostensibly legitimate mechanism for collecting money from the citizens he's pledged to serve. You get what you pay for. That story was told to me by several persons, including some of the competing publishers, who had offered to buy Oberly out, while I was working for them, but many other elected officers have lucrative private sidelines. The county Recorder of Deeds and Register of Wills, for example, both have private law practices besides those elective, salaried positions that provide them offices and staffs in the public buildings in Wilmington. 1: Paragraph 13 So does the Public Defender, who is appointed, not elected. Lawrence M. Sullivan has been Delaware's PD for more than twenty years, and most indigent criminal defendants in state court are represented by one of his deputy PDs, who also have private law practices on the side. The poor quality of these representations have been an open scandal for years: In 1981, in an opinion in 'Waters v. State', published at 440 'Atlantic Reporter' 2d 321, the Delaware Supreme Court took Sullivan to task for trying to shirk responsibility for the inadequacy of the legal services he provided. It has been traditional for the PDs to divert defendants who can come up with any money, usually from their families, to their private practices; a very few indigent defendants, usually repeat offenders who learned the first time around how much help the PD is, demand and get independent lawyers appointed and paid by the court. 1: Paragraph 14 The defendants stuck with the PD are often worse off than if they had no lawyer at all, because they rely on the bum advice they get from a lawyer who gets paid the same salary no matter how much or little time he spends on their case and resents taking the time away from his private practice, where he can bill by the hour. Take the case of Susan J. Scott, for example: On 20 September 1986 she fatally shot her live-in boyfriend who had been violently assaulting her for the five years they had been together. She was arrested, charged in Delaware Superior Court with first-degree murder and possession of a deadly weapon during the commission of a felony. 1: Paragraph 15 She was represented by one PD for about a year, and then he left the PD's office, so her case was assigned to another deputy PD named Duane D. Werb. Although he knew there was evidence supporting Scott's self-defense claim, Werb advised her that the "battered woman defense" wouldn't fly in Delaware, that there wasn't enough evidence to prove self defense at trial, that proving self defense couldn't clear her of the lesser included offense of manslaughter, and that if she pled guilty to manslaughter she would receive a sentence of three and a half to seven years in prison. So on 26 May 1988, a week before her trial was supposed to start, Scott took Werb's advice and pled guilty to manslaughter; she was sentenced to twenty-five years in prison. 1: Paragraph 16 Then Scott's family managed to scrape up the money to hire New Orleans lawyer Richard Ducote, with a national reputation for representing battered women, to try to get her sentence reduced. On 19 July 1989 Judge John E. Babiarz Jr., who had accepted Scott's guilty plea and sentenced her, reversed her conviction in a written opinion ruling that Werb had committed legal malpractice by giving her advice that was blatantly wrong on three separate points of law. The two charges against her were reinstated, and Scott's trial was scheduled for 16 October. That morning the deputy AG offered another plea agreement: If she would plead guilty to manslaughter, she would be sentenced to three years, which was how long she'd been in maximum security by then. So she pled guilty and was immediately released from prison. 1: Paragraph 17 Scott wanted to sue the PD for legal malpractice, and Ducote was willing to represent her in that suit, but he had trouble finding a member of the Delaware bar willing to go up against the PD, and he had to have a Delaware lawyer to act as local counsel because he wasn't licensed to practice law here. He finally asked the Delaware ACLU for help, but all they did was give him my name; I agreed to be local counsel in the case, and that's why I came to know about it. 1: Paragraph 18 On 15 August 1991 we filed Scott's civil complaint in Superior Court, against Sullivan and Werb. Remember that the prosecutor in the criminal case had been the AG and that a Superior Court judge had already ruled the PD committed legal malpractice. Now the AG appeared on behalf of the PD, because the AG is the lawyer who represents all state employees, and Superior Court Judge Vincent J. Poppiti summarily dismissed the complaint: He ruled that because Scott had pled guilty to manslaughter, the same as she did on Werb's advice, she could not have been harmed by any wrong advice he gave her! That dismissal was recently affirmed by the Delaware Supreme Court. 1: Paragraph 19 That story illustrates not only the incestuous (if not downright masturbatory) nature of Delaware's criminal justice system but also the distinctive feature of Delaware civil litigation: Most participants in civil litigation are from out of state, and they have to pay featherbedding Delaware lawyers to hold the courthouse doors open for them. 1: Paragraph 20 A couple of years ago the American Bar Association rated Delaware as fourth in the country in the number of lawyers per capita, and that's true as far as the numbers go, but it gives a false impression: Many of the lawyers in Delaware are employed in companies other than law firms, so they're not available for hire by other clients; many of the lawyers working in banks or other companies are not admitted to the Delaware bar, so they couldn't go into private practice anyhow. Unlike many states, Delaware no longer cuts lawyers from other states any slack in getting into the Delaware bar, and every candidate for admission has to take the same bar exam and perform the same clerkship, no matter how long the person may have been a lawyer (or even a judge) elsewhere. This anti-carpetbagger rule was made by the all-lawyer state Supreme Court, not the nearly lawyer-free legislature (now 1 of 21 senators; 1 of 41 representatives), and ensures that there won't be too many lawyers (about 1900 now) compared to the amount of business, but it has the effect of decreasing competition, and I firmly believe that free-market competition is always good and is what made this country great. 1: Paragraph 21 In many places, the lawyers who make the most money are the ones who do personal injury litigation -- that's why you see so many commercials for that kind of business wherever lawyers are allowed to advertise on television. PI lawyers usually work for a contingency fee (often a third of the amount recovered), meaning they get paid only if they win, and the plaintiff doesn't pay any up-front legal fees. That's why there's too much litigation in this country: No matter how bogus the suits are, a lawyer who files enough of them will sometimes hit the jackpot; defendants often settle for nuisance value to avoid the humongous legal expenses they will incur even if they end up winning, and it doesn't cost plaintiffs anything to sue, so if they lose they're not out anything, and if they win they come out ahead. 1: Paragraph 22 In Delaware it's not like that. The big-ticket legal cases here are not over personal injuries but over corporation law, and we have a special court for litigating corporation cases, the Chancery Court. Chancery or equity court started in England in the late 1300s and over the centuries developed a separate structure similar to that of the so-called law courts, and certain types of cases became associated with one or the other. By the time America was settled, it was established that criminal prosecutions and civil suits for money damages were legal cases, while probate, adoptions, and civil suits for injunctions were equity cases. One of the main distinctions between them was that there were no juries in chancery. 1: Paragraph 23 A trustee is a person who has agreed to hold or manage property for someone else's benefit, and anything to do with trusts is within the equity court's jurisdiction. The idea of a corporation is that its directors are trustees for its stockholders, managing the money they paid for their shares for their benefit, so any litigation over corporate affairs is a chancery case. 1: Paragraph 24 The federal District Courts have both legal and equitable jurisdiction, but only in cases where there is federal jurisdiction over the subject matter, of course, and most states have similarly combined the two courts into one, although some states maintain a distinction between the law division and equity division of the court. In Delaware the Superior Court has jurisdiction over cases that are legal only and the Chancery Court has jurisdiction over every case where either the subject matter or the relief sought includes any equitable component. 1: Paragraph 25 So in Delaware if you want to sue your neighbor for the cost of fixing your garage when he overshot his driveway and smashed into it, you do that in Superior Court; if you want to enjoin him from driving across your property in the future, you do that in Chancery; and if you want to do both in one suit, you have to do that in Chancery, too, because the Chancery Court has jurisdiction over legal claims related to equitable claims, but the Superior Court doesn't have jurisdiction over equitable claims related to legal ones. 1: Paragraph 26 The Chancery Court now has five judges: Chancellor William T. Allen, who is rated one of the best chancellors in living memory, and four vice chancellors of varying lesser ability. Most of the cases that come to them involve either trusts or corporations, and there are no juries, so they make all the decisions in every case, and that gives them an awful lot of experience. Unfortunately it's like what John F. Kennedy said about the difference between ten years of experience and one year of experience ten times: They keep getting cases that are exactly the same except for the name of the corporation. I often wonder why they're still writing opinions from scratch when they come to the same result and take so long; they have word processors, so they should load standard paragraphs and then do their opinions by selecting from a menu. 1: Paragraph 27 There are, after all, only two possible rulings on a motion for anything -- it's either granted, or it's denied -- and the recurring issues have well established standards the court is required to consider. Probably the most frequent issue they decide is the motion for preliminary injunction: Every time the Wall Street Journal says there's going to be a tender offer for a company, at least one of its stockholders files a class action to enjoin the deal. There are three points a party has to prove to get a preliminary injunction, so the Chancery Court should have a one-page preliminary injunction opinion form that has, for each of those three questions, a "no" box and a "yes" box with a blank next to it for the judge to fill in the fact that proved that point. Then the word processor could spit out the standardized preliminary injunction opinion with those customizations -- "You may have already won a preliminary injunction, Plaintiff Insert Name Here" -- and citations to the latest precedents on each point. 1: Paragraph 28 So why don't they do that, if it would be easier and faster? Because the big legal business in Delaware is corporation litigation, and nobody here wants to streamline the process and so cut down on the profits from it. Most lawyers in Wilmington (which is the bulk of the lawyers in Delaware, using that word in several different senses) are or want to be local counsel for out-of-state lawyers in corporation cases; the ethics rules governing lawyers say they can't split fees except in the same proportions they split the work, and the only work local counsel can usually claim to do is supply the expertise on local practice and precedents. Because the procedural rules in Superior Court are very similar to those of the federal courts, and the Chancery Court rules are virtually identical to the federal rules, lawyers from anywhere in the country already know as much as they need to about local practice here, so all that's left for local counsel to do is provide gossip about the judge or other lawyers in the case and citations to prior opinions that have not been published in the national reporters. So Chancery Court issues tons of opinions that aren't published, say the same thing over and over again, and give local counsel the right to claim a large percentage of the fee for reviewing pertinent opinions. 1: Paragraph 29 Delaware is the corporation capital, and some writers have said corporation whore, of the country: More corporations are chartered here than in all the other states put together, and Delaware actively encourages that with its laws governing corporate affairs and taxes. When you're going to sue a corporation, you have a choice about where to do it, and one of the choices is always a court in the state where the corporation is chartered, whether it does any business there or not. So most corporations can be sued in Delaware because they're incorporated here. 1: Paragraph 30 Until November 1991 everybody knew a corporation could always sue somebody else in the state where the corporation plaintiff was chartered, but then the Superior Court handed down a decision throwing out a case filed by a Delaware corporation against a whole slew of insurance companies for not covering claims against the plaintiff for hazardous waste dumps. The Chancery Court would never have made a ruling like that, and the lawyers here are hopping and howling at the prospect of losing the chance to be local counsel in some of those cases -- they're trying to get the legislature to pass a law guaranteeing the "right" of a Delaware corporation to drag defendants into Delaware courts whenever they want to. 1: Paragraph 31 Remember that most Delaware lawyers want to be local counsel in corporate cases, and a lawyer who goes up against corporations will be blacklisted and never be hired to represent corporations. A plaintiff in a personal injury suit sues whoever did the injury, but in effect the suit is usually against an insurance company -- in a car accident case, it's the auto insurance; in a medical malpractice case, its the doctor's professional insurance; in a product liability or slip-and-fall case, it's the casualty insurance; and in tender-offer cases, it's the directors' E&O insurance -- so insurance companies pay the lawyers in many cases. The bottom line is that a person in Delaware who wants to file a personal injury suit can't usually find a good lawyer here to do it, because the lawyers don't want to go up against the insurance companies and run the risk of never being hired by those companies in the future. 1: Paragraph 32 The United States was founded on the idea of individuals' rights, but in Delaware corporations count for more than people do now. Take the top state officials: The governor and lieutenant governor are elected separately, so we can, and recently did, have a governor who was a Republican and a lieutenant who was a Democrat. The governor appoints the Secretary of State, who regulates corporations -- entities that contribute lots of money to campaigns but can't vote and usually aren't in Delaware anyhow. If something happens to incapacitate the governor and lieutenant governor, the Secretary of State becomes governor; if something happens to him, the AG elected by the people becomes governor. That shows that Delaware puts the interests of corporations ahead of the interests of voting individuals. Thomas Jefferson and Abraham Lincoln must be spinning in their graves. 1: Paragraph 33 My civil procedure professor used to joke about the "lawyers' full-employment act," and nowhere does that concept command more respect than in Delaware. Non-Delaware lawyers working inside companies here usually don't bother to apply for admission to the Delaware bar, and swell its ranks, because the Bar Association and every other privilege extended to lawyers is equally open to lawyers working, but not admitted to practice, here. One reason there are never very many lawyers in the General Assembly is that there are not enough lawyer to spare -- you can make a lot more money double-billing clients in Wilmington than driving down to Dover to sit in the legislature. 1: Paragraph 34 Ever since 'Marbury v. Madison' it's been accepted that the judiciary can overrule the executive, but in the federal system Congress can usually overrule the Supreme Court legislatively. But in Delaware if the legislature passes a law that disfavors lawyers or that lawyers disfavor, the AG invalidates it; so, contrary to the theory of tripartite government with checks and balances, we have a member of the executive exercising ultimate control over the legislature. Spin, Tom. Spin, Abe. Spin, spin, spin. 1: Paragraph 35 One novel aspect to the old-boy network in Delaware is that it's easier here for a woman to become a judge than a senior partner in a big law firm. Although there has not yet been a female justice on the Supreme Court, there are women on the benches of the other courts. With two notable exceptions, they are mostly women who had been with largish local firms long enough that the firms faced the prospect of making them senior partners, and that wouldn't do; so the senior partners used their influence to have the women appointed judges, because Delaware is a state where judges are appointed, not elected. The two exceptions are Vice Chancellor Carolyn Berger, whose husband Fred S. Silverman is AG Oberly's right-hand-man and actually runs the Dept. of Justice, and Judge Jane R. Roth, who is now on the bench of the Third Circuit federal appellate court but was until recently one of the federal District Court judges here and whose husband is Delaware's Republican in the U. S. Senate, William V. Roth Jr. 1: Paragraph 36 So the legal system in Delaware is like a medieval fiefdom. He who pays the piper calls the tune, and here that's the out-of-state corporations and their lawyers. The citizens are in the same predicament as the serfs when itinerant knights employed by absentee overlords rampaged across the land, destroying crops, herds, and sometimes the villeins themselves while fighting each other over esoteric points of honor nobody ever explained to the peasants because it had nothing to do with them anyhow. --- CHAPTER II. The best politicians money can buy 2: Paragraph 1 A people gets the kind of government it deserves and deserves the kind of government it gets. If you believe in karma, you have to wonder what evil deeds Delawareans committed in former lives to deserve the kind of government they've got. 2: Paragraph 2 Although parts of the story were told to me by various people, the following account of what happened in 1966 and 1976 is taken mostly from Joseph Donald Craven's 1978 book 'All Honorable Men'. There are many parallels between this book about what happened to me at E. F. Hutton and that book about what happened to him in the antiwar movement in Delaware. 2: Paragraph 3 Craven was a lawyer who was elected AG in 1954, the only Democrat to win that office between 1912 and 1974. Despite having been a stalwart Democrat from childhood, by 1966 Craven realized that, no matter whether the players labeled themselves Republicans or Democrats, in Delaware there was only one political party, and that was the Establishment. So he helped start the Constitution Party to run antiwar candidates for the U. S. Senate and House in that year's election. AG David P. Buckson and both Senators then were Republicans, and the Congressman and Governor were Democrats. 2: Paragraph 4 At that time Delaware had no provision for independent candidates or write-in votes, so the only way a person could be a candidate was to be nominated by a political party. Under the law in effect since 1955, to rate a place on the ballot for its nominee a party had to submit petitions signed by 500 citizens of one county and 250 citizens each of the other two counties; that's what minority parties had been doing for a decade to be on statewide ballots, but none of their candidates had gotten as many as 500 votes, so they hadn't been a real threat to the Establishment. 2: Paragraph 5 In March the Constitution Party put an announcement in the newspaper and started collecting signatures door-to-door. In May the Democrats introduced in the General Assembly a bill changing the law to require any new political party to submit signatures of 50 citizens of each senatorial district, and each of those signers had to be registered to vote but not registered as a member of any other political party. There were then only four categories for registration: Democrat, Republican, Independent, and Decline; so the signatories had to be registered as Independents or Declines. 2: Paragraph 6 The last date for changing registrations that year was 23 July. The General Assembly Would adjourn on 17 June, and the state constitution provided that no bill could become law after the Assembly adjourned unless the Governor signed it within 30 days of the adjournment. The senate passed the bill on 6 June, and the house on 16 June; the Governor didn't sign it until 21 July, which was 34 days after the legislature adjourned and only 2 days before the deadline to change registrations. 2: Paragraph 7 Of course the Constitution Party did not have enough signatures of voters not registered as Democrats or Republicans, so the elections clerks refused to include its candidates on the ballots. The Party sued those clerks in Superior Court, which kicked the case upstairs to the state Supreme Court; although by law the AG is required to represent all public officers, in this suit the clerks were represented by William S. Potter who happened to be Delaware's Democratic National Committeeman, and he had also been the lawyer who had won the earlier case ruling that the AG had to represent public officers, so he must have known what he was doing was illegal. 2: Paragraph 8 There were three justices on the panel that heard the case: Chief Justice Wolcott was a friend of Potter's and a former partner in Potter's firm who was appointed by the former governor, the same Democrat who had appointed Justice Carey and was a close friend of Lyndon Johnson's, and Justice Herrman had been appointed by the Democrat who was then governor. On 14 October the court ruled unanimously against the Constitution Party and never addressed the fact that the bill under which the clerks rejected the Party's petitions hadn't ever become law because the governor waited too long to sign it. 2: Paragraph 9 It was too late by then to appeal that decision to the U. S. Supreme Court before the 8 November election. The polls showed the Republicans' incumbent candidates for Senator and AG leading, and the Democrats' incumbent candidate for Representative was ahead of the Republican. On 28 October the Constitution Party publicly asked its supporters to vote for the Republican candidates. The Republicans won all six statewide offices by the largest margins in Delaware's history, ten times what the Democrats' majorities had been in 1960. Ironically enough, in sending that message to the supposedly warmongering Democrats, Delawareans elected to Congress a Republican who campaigned on a platform that LBJ had not been warlike enough in Vietnam: now-Senator Roth. 2: Paragraph 10 In October 1968 the U. S. Supreme Court invalidated as unconstitutional an Ohio statute that prevented write-in votes and required all parties except the two major ones to submit petitions to get a candidate on the ballot. In 1974 the U. S. Supreme Court invalidated as unconstitutional a California statute that kept an independent candidate from being on a ballot without a political party's endorsement. Those rulings ['Williams v. Rhodes', 393 U.S. 23 (1968); 'Storer v. Brown', 415 U.S. 724 (1974)] meant Delaware's whole election law, in effect since 1955, was unconstitutional. 2: Paragraph 11 Sordid as it is -- and that was just the, you should pardon the expression, high points of what happened -- that story by itself might not prove how the Establishment pulls together to disenfranchise Delawareans, but then it happened again: 2: Paragraph 12 In the spring of 1976 Joseph F. McInerney was unsuccessful in getting the Democrats' nomination for the U. S. Senate, so he started the Delaware Party, and in May it nominated him and other candidates for that November's election. In June the General Assembly passed, and the Democratic governor signed, a bill changing the law so as to make it harder for the Delaware Party to get its candidates on the ballot. The Party then asked Democratic AG Richard R. Wier Jr. for a ruling on the constitutionality of that law, and on August 30 he issued a written opinion to the state election commissioner citing 'Williams' and 'Storer' and ruling the new law valid; remember that in Delaware the AG's opinions have the force of law. 2: Paragraph 13 On 31 August McInerney sued the election commissioner and other officials, in federal court in Wilmington, to put him on the ballot as the nominee of the Delaware Party. AG Wier, representing the defendants, conceded without argument that the new Delaware statute was unconstitutional. On September 14 the federal court invalidated the statute and ordered the elections officials to put McInerney on the ballot. Two years later AG Wier ran for re-election, and that's where Craven's book ended. 2: Paragraph 14 In the 1982 election, two Democrats were elected who figure prominently in this book: Oberly became AG by a margin of 1177 votes over the Republican, with the American Party candidate and the Libertarian Party candidate totaling 1565 votes, and Thomas R. Carper became the Congressman, with Roth elected to the Senate. 2: Paragraph 15 That was around the time Carper divorced his first wife. I haven't heard any rumor that he beats his current wife, but several people who were their neighbors have told me he used to beat his first wife, and in their written settlement agreement he paid extra for her promise not to mention it anymore, and they said they knew that from their own observations and from what she told them. During the 1990 campaign, Carper's opponents' campaign managers told me that was true and that they had documentation that as early as his college days he beat up on the women he dated before he was married. 2: Paragraph 16 When I was checking dates for this section, I couldn't find the date of that divorce, so I called the public library in Wilmington and asked. That library's research desk is superlative -- they take inquiries over the phone, and they've often answered such obscure trivia questions for me that I was almost embarrassed to ask them. After researching the question for most of a day, they called back to say Carper's divorce was between 1982 and 1984, but they couldn't find any reference to it anywhere, and they'd even called the local newspaper. 2: Paragraph 17 I hadn't really cared at first, but that made me start wondering: 'Who's Who' includes divorce dates in its listings (mine's in there), everybody knows Carper's been divorced, he's held high federal office since 1982, and he's already announced he's the Democratic candidate for governor this year, so he's a public figure whose biographical statistics are in the public domain -- why the mystery? So I called his office here and asked what year he divorced his first wife, and his staff got all bent out of shape. They asked for my name, and I wouldn't give it, but I told them I was a registered voter who wanted to know. That drove them crazier. When one of them asked why I wanted to know, I said it was biographical info for an article I'm writing about the candidates in this year's election. Not only wouldn't they tell me when the divorce was, but then they wouldn't even talk to me anymore and said I couldn't talk to anyone but Carper's press secretary in Washington! Now I'm very curious about what Carper is trying to hide. 2: Paragraph 18 Anyhow, in 1986 Oberly was re-elected AG with 915 votes more than the Republican, and American Party candidate David S. DeRiemer got 1133 votes. DeRiemer is a colorful character, a businessman from the southern part of the state who feels so strongly about his rights that in 1988 he went to jail rather than agree the state could require him to have its permission, in the form of a driver's license, to drive a car. He's not a lawyer, and he doesn't drive anymore. His platform was to do away with the Federal Reserve Bank, but he never explained how Delaware's AG could affect the Federal Reserve; he has himself told me all the federal courts in the country are illegal because they're supposed to be the judicial branch, but they've gone over to the executive branch, as evidenced by the fact that they all have U. S. flags with gold fringes around them, and only the executive branch is allowed to have gold fringes on its flags. 2: Paragraph 19 After the 1986 election, DeRiemer joined the Libertarian Party, and he wanted to be its AG candidate in 1990. I didn't know about that in late 1989 when the Delaware Libertarian Party asked me to be its AG candidate, and I'd already agreed before I found out. Meanwhile, Oberly had decided to run for a third term: No Delaware AG had ever run for a third term, although nothing in the state constitution or laws forbids it; before Oberly, the only three who had run for a second term were: Buckson, who cashed in on the 1966 Republican landslide; Wier, who lost to Richard S. Gebelein in 1978; and Gebelein, who lost to Oberly in 1982 and is now a Superior Court judge. 2: Paragraph 20 In the grand tradition of Delaware politics, where the Establishment closes ranks against outsiders of any political persuasion, Oberly played both ends against the middle by cutting deals with both the Democrats and the Republicans to get re-elected. I heard each of the following stories from more than one member of the old guard of the respective party, who resented the way Oberly used the power of his office to preempt their parties out from under them, as well as from various lawyers and reporters who were outside observers. 2: Paragraph 21 Delaware law limits a governor to two four-year terms. In 1988 Republican Michael Castle was re-elected, and Republican Dale E. Wolf was elected lieutenant governor. The lt. governor had been Democrat S. B. "Landslide" Woo, so called because he won by a handful of votes on the recount of the 1984 election, but in 1988 he ran against Roth for the Senate. 2: Paragraph 22 Delaware has some fairly specific campaign-financing laws on its books, but like many sections of the Delaware Code, those statutes are considered unconstitutional, and therefore unenforceable, except when Oberly wants to convict a potential political rival. He is on record calling those statutes invalid insofar as they limit the amount he, as a candidate, can spend on his campaign. One provision prohibits campaign contributions of more than $1000 to statewide candidates. 2: Paragraph 23 In 1988 Castle's campaign committee had more than enough money for his re-election, but Wolf's didn't have enough for his harder-fought campaign, so Castle's committee covered some of Wolf's campaign expenditures, and the Democrat Wolf beat filed a complaint for violation of that provision. You know who enforces those laws: AG Oberly. He had spent the past couple of years convicting the Democrats who had controlled the state party of picayune violations of the contribution laws, so they were forced out of politics and, in one or two cases, went to jail. Now the Democrats wanted him to turn that same law against Wolf, who was being groomed to be the Republicans' candidate for governor in 1992. 2: Paragraph 24 The deal Oberly made with the Republicans was that he would clear Wolf of those charges, and the Republicans would run a nonviable candidate for AG in 1990, and if Wolf became governor in 1992 he would appoint Oberly a judge. After the Republicans did indeed nominate a stalking horse, Wilmington lawyer F. L. Peter Stone, on 1 May 1990 Oberly issued an opinion clearing Wolf. How the Democrats did howl! But the funniest part is that Wolf's other political problems caught up with him, and the Republicans dumped him and nominated Realtor B. Gary Scott. And Buckson got thrown off the bench of the Family Court for running for it without first resigning. 2: Paragraph 25 One of the reasons I believe that story is it fits all the circumstantial evidence. There's no question Oberly has admitted publicly he wants to be a judge when he leaves the AG's office. Had the Republicans wanted their AG candidate elected in 1990, Gov. Castle could have appointed Oberly a judge in 1989 and then appointed a Republican to fill out the term, and that Republican would have come into the 1990 campaign as an incumbent and surely have won re-election. But the charges against Wolf were still pending, and more Delaware voters are registered as Democrats than as Republicans: They would have resented Oberly's selling them out, if he dismissed those charges on his way out or the new AG dismissed them on the way in, and so voted against Wolf as a backlash. Nor is there any other reasonable explanation for nominating Stone, who is a nice guy but doesn't know which end is up; there were Republicans who had not only sufficient legal experience but also the required public relations skills: They should have nominated DAG M. Jane Brady to run against Oberly instead of against Senator Joseph R. Biden. 2: Paragraph 26 The deal Oberly made with the Democrats was he would help Carper oust the existing state party leaders, and if Carper was elected governor in 1992 he would appoint Oberly a judge. The Democrats were mad at Oberly for prosecuting party leaders, some for petty campaign financing violations and others for drunk driving. When Oberly was himself arrested for drunk driving, however, he had the charges dropped, and when his chief deputy Silverman was charged with hit-and-run, they'd had those charges dropped, too. Carper couldn't have taken over the party if Oberly hadn't cleared the way for him: The criminal prosecutions not only removed some major players but also intimidated everyone who was left. You could have made a fortune selling Maalox to Delaware Democrats between 1988 and 1990. Wilmington plumber Daniel D. Rappa made a valiant, but doomed, last-ditch effort by running against Carper in the 1990 primary. 2: Paragraph 27 No sketch of Delaware's political scene would be complete without some mention of the media situation: There is no television station in Delaware, and there are no competing newspapers. Most people have cable tv, and there's only one carrier serving each area; downstate gets broadcast channels from Salisbury MD, and Wilmington gets the Philadelphia PA channels and the NJ PBS channel. The ABC and PBS stations in Philly have studios in Wilmington, but Delaware and southern New Jersey get short shrift in the coverage on all Philly stations. (Northern Jersey gets just as little coverage from the New York City stations that supposedly serve it.) With an antenna in Wilmington you can pick up the Baltimore channels. 2: Paragraph 28 The cable carrier in Wilmington is Heritage, and downstate it's mostly Storer. The utilities commission that set the terms with the carriers sold out the citizenry by not providing for free public access. There's only leased access, and Heritage keeps raising its rates and downgrading its production services, thus decreasing access. 2: Paragraph 29 There's only one daily newspaper left in Wilmington, the 'News Journal' owned by Gannett, and the 'Delaware State News' is published in Dover. There are several radio stations around the state, and they're the best source of local Delaware news. 2: Paragraph 30 The 'News Journal' is the handmaiden of the Establishment and generally manipulates its coverage to present the party line. During the 1990 campaign it endorsed Oberly and mostly ignored my candidacy except for an occasional deliberate distortion of the facts. The PBS station reneged on its promise to include me in its candidates' debate, apparently on Oberly's instructions, and the ABC station refused to let me debate Oberly and Stone, but after I complained to the FCC, the station put me on for an equal amount of time weeks later. Storer refused to accept my commercials until the FCC told them the law required them to, but they still refused to sell me the time slots I wanted. The radio stations were unfailingly cooperative, and WILM was unexpectedly supportive. At a candidates' debate sponsored by a radio station in Dover I met the president of Delaware's chapter of NOW, and he endorsed me on the air after the debate. In May 1991 I ran into him, and he said afterward Oberly called him and said as AG he could make things bad for NOW for endorsing me. I was flattered. --- CHAPTER III. The chits hit the fan 3: Paragraph 1 In early 1984 I was living in Maryland and working as a tax law editor at the Bureau of National Affairs, an employee-owned publishing house in Washington originally related to 'U.S. News & World Report', but I was looking for another job; I liked the one I had, but it didn't pay enough. One of the people I'd sent a r sum was David J. Garrett, a partner at the Wilmington law firm Potter, Anderson & Corroon, who had led a seminar I'd taken on estate and gift taxation. 3: Paragraph 2 At work one day I got a phone call from a man who said he was Paul Butler with E. F. Hutton Trust Company, and I might be interested in a job he had open. In those days, when Hutton talked, people still listened. Butler said he'd had lunch with Garrett, who told him I was looking for a job, and the one at Hutton wasn't the kind I'd talked to Garrett about, but he'd like to tell me about it. We discussed it a little, and when he invited me to Wilmington for an interview, I accepted. 3: Paragraph 3 At the interview, Butler outlined the Trust Company's history: After some months of handling only pension trusts, the Trust Company wanted to get into personal trusts, so it had hired Butler away from one of the local banks to head the personal trust department; he'd come on board the beginning of 1984 and had been trying to hire two people to work for him: one to stay inside and mostly draft documents, which is what they were considering me for, and one to travel around the country teaching Hutton's brokerage house employees about trusts. In a year or so they might add an office on the West Coast, and in about three years Butler would be retiring; I figured that would give me time to learn what I needed to from Butler, and I'd either get to run the West Coast Office or get his job when he left. What they were proposing was a new concept in personal trusts, and I really liked the idea of getting in on the ground floor of that, but with such a big company behind us that we could afford to do it right. 3: Paragraph 4 At that interview I met Jay Abbes, the Trust Company's CEO, and I may have met Bill Hitchcock, its president and COO. I felt uncomfortable with Abbes; at first I thought he'd taken a dislike to me, but then I decided it was Butler he was down on, and I'd just wandered into the firing line. 3: Paragraph 5 They offered me the job, with a salary I probably couldn't have refused even if I hadn't liked the job so much, and I accepted, to start work a few weeks later on 30 April. I gave notice at BNA and started a Wilmington realtor looking for a house. On my next-to-last day of work at BNA, they threw me a going-away party, and I got home in one of those mixed moods: touched by how happy my BNA friends were for me and sad to be leaving them but excited about the prospects at Hutton. 3: Paragraph 6 There was a message on my answering machine from Abbes asking me when I'd been planning to start work, telling me Butler was leaving in a reorganization that would eliminate the job he'd hired me for, and saying we could discuss it when I got to Wilmington. Fat chance! I felt like I'd been punched in the stomach, and I couldn't wait that long to know whether I still had a job at Hutton, so I called Abbes back right then. He kept talking around most of what I wanted to know, but he did confirm that I still had a job, on the same terms, but that it would be a different job: Butler would be staying on for a few months, but then I'd be in charge of personal trusts; and I'd still come on as assistant corporate secretary, but when Butler left I'd succeed him as secretary. 3: Paragraph 7 So from the first day I reported to work at Hutton, I already knew there was a lot of internal political stuff going on behind the scenes, and I kept my eyes and ears open in self defense. I learned overlapping parts of the following story from Abbes, Hitchcock, and the Trust Company's other directors, from Hutton people in New York and around the country, from Wilmington lawyers in several of the firms hired to charter the Trust Company, from the Delaware bank examiners who audited the Trust Company, from the documents setting up Hutton Trust Company and Hutton Bank that Hitchcock showed me, and from the Trust Company's corporate records that were turned over to me when I became secretary. 3: Paragraph 8 The entity most people thought of as E. F. Hutton, the one that advertised in the commercials about people listening, was the brokerage firm whose real name was E. F. Hutton & Co. Inc. It was a Delaware corporation all of whose stock was owned by E. F. Hutton Group Inc., a Delaware holding company whose stock was publicly owned and traded on the New York Stock Exchange. So if you bought Hutton stock, you were buying shares of Group, but if you bought stock through a Hutton office, it was Hutton & Co. that was your broker. 3: Paragraph 9 Hutton Group also owned some other corporations, including E. F. Hutton Life Insurance Company and some investment managers and funds. The chairman of Hutton Group's board of directors was Robert Fomon, and the president of Hutton & Co. was Scott Pierce, who was then-VP George Bush's brother-in-law. 3: Paragraph 10 Much of the money in this country is in pension plans, most of them now "qualified plans" under the federal pension laws known as "ERISA." That money isn't tied up, out of circulation, though -- it's invested in everything from real estate and mutual funds to race horses and precious gems. Managing those investments and doing the paperwork for both pay-ins and pay-outs is also big business, because the fees for management and administration are usually a percentage of the amount in the fund, and even a small percent of a billion dollars is a lot of money. 3: Paragraph 11 By the early 1980s Hutton, like the other financial institutions, derived a significant portion of its income from pension funds, either as fees for managing the investments by deciding what stocks or bonds to buy or as commissions for being the broker that actually traded the securities. It's a conflict of interests, prohibited by law, for the same entity to manage the investments and get a brokerage commission, for the same reasons it's now illegal for a Justice of the Peace's salary to be a percentage of the traffic fines the JP imposes. 3: Paragraph 12 What happens in many companies is that a few, usually senior management, employees are the trustees for the fund, so they make the investment decisions, and the fund has a broker who buys and sells as directed by the trustees. That's the theory, at least, but what often happens is the committee of trustees don't know enough, or have enough time outside of their work, to make investment decisions, so they take the broker's advice, and that's not necessarily bad. But to keep the brokers honest, trustees with good sense often deal with several brokers and play them off against each other, and that's free-market competition and good for everyone except the greedier brokers. 3: Paragraph 13 What Hutton wanted was to become trustee for the pension funds, so it could collect the trustee's fee for managing the investments, and hire only itself as broker, so it could continue to collect the brokerage commission on every transaction. It's like the way they used to catch monkeys for zoos, where they would cut holes, a tad bigger than a grown monkey's paw, in coconuts, empty them out, put some dried rice inside, and chain them to a tree trunk; at night the monkeys would come, reach inside for the rice, not be able to get their fists out, and be sitting there with their paws stuck in the coconuts in the morning, when the hunters would come throw a net over them. The monkeys were too greedy to let go of the rice even to get free, and Hutton was too greedy to let go of the brokerage commissions even to get the larger trustees' fees. 3: Paragraph 14 So someone came up with the brilliant idea to set up a separate Hutton entity to be trustee of the pension funds, and collect fees for that, and put all the brokerage through Hutton & Co. That entity would be E. F. Hutton Trust Company, and to be able to act as trustee it would have to be some kind of bank. Hutton explored incorporating a bank in several states, but the first few didn't have the right combination of state laws and susceptible officials. Then Hutton looked at Delaware, which was offering some tax and legal incentives to lure companies to Wilmington; you may remember that some credit card companies moved their headquarters to Delaware then to take advantage of those incentives and Delaware's statutes allowing special-purpose banks and unlimited interest rates. 3: Paragraph 15 Hutton hired about five different Wilmington law firms, one after another, to charter its bank, but the first four (including Potter, Anderson & Corroon and, as someone told me, Richards, Layton & Finger and maybe Prickett, Jones, Elliott, Kristol & Schnee) were unsuccessful: some because they filed the application, but it was denied, and some because the other banks they represented objected, so they withdrew from filing Hutton's application. I heard that of those four, only Potter Anderson returned Hutton's retainer; the others kept what they'd been paid even though they failed to charter the bank. 3: Paragraph 16 Then Hutton hired the Wilmington office of Skadden, Arps, Slate, Meagher & Flom, by some measures the biggest law firm in the country, and certainly preeminent in corporation law. Two of Skadden's senior partners were Rodman Ward Jr. and Irving S. Shapiro. Ward is a formidable lawyer who coauthors one of the leading treatises on corporation law; he's also an interesting person, but he's so smart he sees what's coming so many moves ahead of where you are that it's scary sometimes. Shapiro is either a fool or senile, but he used to be du Pont's CEO, so he's an 800-pound gorilla in Delaware; if you want to see what the Second Coming will be like, just watch how everybody here acts around Shapiro. His value at Skadden is not his minimal ability as a lawyer but his clout with the authorities. 3: Paragraph 17 Shapiro first got the other banks in town, and their Delaware Bankers' Association, to back off in their opposition to letting Hutton in, and then he got Delaware's Bank Commissioner John E. Malarkey to grant Hutton two applications: one for a bank and the second for the Trust Company. Hutton Bank never did much, but Hutton considered using it in several packages that didn't get off the drawing board; we discussed such plans as having it lend money to customers who would then use that money to buy stock or insurance from Hutton, either directly or through trusts at Hutton, for example. 3: Paragraph 18 The Bank's affairs were handled by its two officers: the Trust Company's president Hitchcock and Richard Roeder at Hutton in New York. Hitchcock showed me the papers setting up the Bank, and Roeder and I had some discussions about it, but I didn't pry into the matter, because it wasn't my problem. I do remember that what business the Bank did was a few loans to some Hutton VIPs, but there were some legal irregularities about the situation, and a major reason we didn't do more with the Bank was that if it got active those defects might come to the attention of the regulatory authorities when they audited. Some of the irregularities had to do with doing business before the law was changed to allow it, and when the law was changed, it didn't cover Hutton Bank, but I'll come back to that later. 3: Paragraph 19 Once Shapiro got the Trust Company chartered as a Delaware limited-purpose trust company in July 1982, other Skadden lawyers prepared the usual corporate start-up documents and turned them over to Hutton. From then on, Hutton would call Skadden only when Hutton got into trouble with Commissioner Malarkey and couldn't get out of it without Shapiro's influence. 3: Paragraph 20 Hutton hired Hitchcock to be nominal head of the Trust Company; he had worked for State Street Bank in Boston for a long time, and Hutton brought in an outsider to be president so it would look as if the Trust Company was separate from the brokerage firm. In fact, though, as vice-chairman of its board James C. Lockwood was in charge of the Trust Company. Lockwood was the head of Hutton & Co.'s Consulting Services Division, a group that mostly charged fees for advising people which investment managers to hire: If the manager hired was a Hutton subsidiary, then Hutton got the management fee, and if the manager was not a Hutton affiliate, it brokered the investments through Hutton, so Hutton got the brokerage commissions. It was CSD's relationships with the pension funds that sparked the idea of the Trust Company, and Lockwood was responsible for it. He and two of his CSD executives, John Ellis and Len Reinhart, were on the Trust Company's board of directors by the time I got there. 3: Paragraph 21 Lockwood and the rest of CSD would come to Wilmington to share space with the Trust Company, and they would both move into offices in a new building on the Market Street Mall next to the Grand Opera House the day I started work in 1984, but when the Trust Company started in summer 1982 it was just Hitchcock and a few female clerical employees. He selected a software system called SEI and started accepting pension trusts. 3: Paragraph 22 Under the governing laws, regulations, and guidelines, as a trustee the Trust Company had to make both investment decisions and pay-out decisions in the best interests of the trust's beneficiaries, but Hutton never intended for the Trust Company to make those decisions, so no mechanisms were ever set up for them. Instead, once an account executive from the brokerage firm would sign a trust client up with the Trust Company, the Trust Company would make whatever investments and distributions that AE told it to: That violated the laws requiring a trustee to exercise responsibility for the trust and also the laws against self-dealing. 3: Paragraph 23 Hutton had picked Hitchcock thinking he was too wimpy to give Lockwood any back-talk but experienced enough to run the operation -- they were only half right: Hitchcock lacked the intestinal fortitude to do anything but follow orders, and without experienced bankers making the management decisions, he was useless. Lockwood lacked the banking experience to know what bank operations were supposed to look like, so he couldn't direct Hitchcock in enough detail, and then Lockwood suddenly fell sick -- I think it was a heart attack, but then he had prostate trouble, and he was incapacitated for many, many months -- and nearly died; when it was feared he would die, or at least never be able to work again, it was necessary to put someone else in charge of the Trust Company. 3: Paragraph 24 So Hutton promoted Abbes, who had been on the board since the beginning; he replaced Lockwood as vice-chairman and CEO on 12 October 1983, Hitchcock remained president and COO, and Thomas P. Lynch of Hutton Group remained chairman. Abbes was a company man in every respect, so he followed Hutton's policy of not telling anyone more than he had to: In Hutton's world, managers didn't let subordinates know what was going on so they couldn't demand a piece of the action for carrying out the schemes, and they didn't put anything in the record that would expose their superiors to liability; when there was a problem, the middle-level manager would take the fall, and whatever higher-ups he was protecting would make sure he had a soft place to fall, often as a consultant to one of the investment management firms Hutton dealt with, if it wasn't possible to move him someplace else within Hutton itself. 3: Paragraph 25 Hutton Trust was never anything but a fa ade of a trust company -- there was no substance to it, and not even much form. It performed no personnel functions, for example, and had no operational bank accounts and no petty cash. When an employee was hired, Hutton & Co.'s forms for a brokerage firm employee were completed and forwarded to New York, and then the person went on the payroll and was paid on Hutton & Co. checks. All reimbursements and employee benefits came from Hutton & Co. 3: Paragraph 26 Each of Hutton & Co.'s branch offices had a coded office i.d. number comprising one letter [out of eleven or twelve possibilities] designating the geographical region and two digits identifying the specific office, and that code was used as an address for telexes as well as an administrative identifier. The Trust Company was treated as a branch office of Hutton & Co. with the code V48, because we were office #48 in the national region; that's what went on all our personnel and payroll records. Hutton's brokerage office in Wilmington was coded A81, because it was office #81 in the Atlantic region; it was a satellite of the Philadelphia office coded A09. There were two brokerage offices in Washington DC, coded C16 and C18 because they were in the Central region, C20 was in Alexandria VA, and C32 was in Bethesda MD. 3: Paragraph 27 Hutton Trust rented a couple of safe deposit boxes and opened three checking accounts, but those weren't operating accounts -- they were for payment of trust distributions. So when someone was supposed to get a pension payment from a fund trusteed at Hutton Trust, Hutton & Co. would deposit enough money in one of those accounts to cover the payment, and Hutton Trust would cut a check to the pensioner, but not necessarily in that order. Where would Hutton & Co. get the money? Out of the pension fund, of course. Wasn't Hutton Trust the trustee and supposed to be holding the fund? Of course that's what was supposed to be happening, but in fact Hutton & Co. never let Hutton Trust near any money except to launder the pay-outs, and that's what's wrong with this picture. 3: Paragraph 28 When Hitchcock set up the Trust Company's computerized accounting system, it was designed to track what happened in the brokerage firm's computerized system, but there was no electronic connection between the two. SEI is a perfectly good trust banking software system used by many banks, including some of the best in Wilmington; it has all the capability any trustee needs, but it's only as good as a user programs it to be, and Hitchcock didn't program it to do much of what it could, and that requires some explanation. 3: Paragraph 29 For every brokerage customer at Hutton & Co. there was an account in the firm's computer to track the trades. That computer account included the customer's name, address, and social security number as well as the office's code, the AE's code, and the account number; it could be accessed from a Hutton terminal anywhere in the world, but only the AE could authorize trades in the account. Whenever a trust account was opened at Hutton Trust, Hitchcock's clerks would set up an SEI account under the same number as the brokerage account and enter whatever information they were given about the assets in the trust. If there were assets that weren't securities -- such as gemstones, real estate deeds, or promissory notes -- they might be listed in the SEI account, but of course they would not be included in the brokerage account. When securities were bought or sold in the brokerage account, Hutton Trust would usually get notice of the trade, and Hitchcock's clerks would keyboard that information into the SEI account. But if assets other than securities were sold, there was no way for the Trust Company to know, because that didn't go through the brokerage firm's computer, so the assets wouldn't be removed from the SEI account; and if anything was bought outside of the brokerage account, including mutual funds that kept their own accounts, the brokerage firm's computer would report the pay-out of funds, and the SEI account would track that, but whatever assets were bought with the funds would never appear in either account, so according to our records part of the trust's value would have simply disappeared. 3: Paragraph 30 The important point is that there never were any assets at the Trust Company. All the assets were in the brokerage accounts at Hutton & Co., and all the Trust Company ever had was the phantom SEI accounts supposedly reflecting whatever happened in the brokerage accounts. The companies the trusts belonged to got monthly statements from the brokerage firm and monthly statements from the Trust Company, and if they didn't match, the customers were likely to complain to their AEs, who would usually complain to the Trust Company. 3: Paragraph 31 The monthly statements from SEI were printed in bulk by SEI and delivered to us in boxes, and Hutton & Co. sent us copies of the monthly brokerage statement in each account that was coded as a trust account. After the AEs started complaining, when there were discrepancies between the two statements Hitchcock and his clerks would white-out the parts of the SEI statements that didn't match and type in the information from the brokerage statement, because they knew whatever the brokerage statement said was what had actually happened in the account. But they changed only the paper statements and never put the changes in the computer! 3: Paragraph 32 It doesn't take an Einstein to figure out that once the two statements for a trust got out of sync, they would stay that way until at least one of the computerized accounts was changed to bring them back into agreement, but that concept seems to have been beyond everyone at the Trust Company. By the time I got there in spring 1984, it was taking about a week each month to white-out and retype the SEI statements for the month, and that's a week with everyone in the operations dept. working all day and half the night and most of the weekend, which added up to a lot of overtime. 3: Paragraph 33 There was also the problem, actually several problems, that the Trust Company wasn't keeping any tax records. For one thing, even though the pension trusts were exempt from paying income tax, they still had to file information returns about their transactions each year, and you have to keep track of the tax basis of a pension trust's assets, because at some point you end up distributing those assets, and you have to know what they're worth for tax purposes then. But the Trust Company wasn't keeping those records, and the customers kept complaining they couldn't get the information for their annual Forms 5500. 3: Paragraph 34 A second aspect of the problem was that Hutton Trust had about a dozen "collective funds" that were like mutual funds in that the assets from a lot of separate pension plans would be pooled and invested, and the profits would be prorated among the participating plans. Those were perfectly legal entities, authorized by the Internal Revenue Code and called "pooled income funds," and they're tax-exempt, but they have to file information tax returns every year so the IRS can make sure they're complying with all the applicable ERISA and tax laws. But Hutton had never filed any tax returns for any of its collective funds because neither Hitchcock nor anyone else at Hutton knew they were supposed to. 3: Paragraph 35 The third part of the problem didn't appear until we started doing personal trusts, and that was that non-pension trusts have to file tax returns every year and pay taxes on their profits. So just as any individual or corporate taxpayer has to, a non-ERISA trust has to keep track of its tax basis for assets and report not only its income from its investments but also its capital gain on the sale of those assets. And Hitchcock hadn't activated the fields to keep track of the tax basis and fair market value of trust assets, because that information didn't appear in the brokerage firm's computer. 3: Paragraph 36 Compounding that was the fact that a trust usually has "income beneficiaries," who get the income for some definite or indefinite period of time, and "remaindermen," who get what's left at the end of that period. A trustee is required by law to keep track of the trust's capital and income separately, because the trust's beneficiaries have different interests, with the income beneficiaries entitled to the income and the remaindermen entitled to the capital. The fiduciary accounting is worse than the London 'Sunday Times' crossword puzzle, and it's absolutely impossible without the records, but Hitchcock hadn't activated the required data fields in SEI, and neither he nor any of his clerks knew how to keep the records. 3: Paragraph 37 The complexity of the record-keeping and tax-reporting is a large part of the reason fiduciaries get paid such juicy trustees' fees, but somehow that concept had escaped the rocket scientists at Hutton, too. Another reason for the fees is that trustees have to make some hard decisions about distributing money from trusts: Many trust documents give the trustees a lot of discretion about making both investments and pay-outs, and if you've ever been in the middle of a family squabble over a legacy you can appreciate that trustees earn their fees. But Hutton skipped over those difficulties by letting the AE on each account make all the investment and pay-out decisions, so all Hutton Trust had to do to "earn" its fee was white-out and retype the statements. 3: Paragraph 38 Three unrelated examples will show you why I often felt as if I was working in a Three Stooges comedy instead of a bank: 3: Paragraph 39 Congressman James T. Broyhill of North Carolina had his share of the money from selling his family's furniture business that he needed to put in a blind trust to avoid conflicts of interest in voting on legislation. Federal regulations cover such trusts and require annual reports, and because such a trust isn't a qualified plan under ERISA, it was considered a personal trust at Hutton Trust. When Broyhill's money came in, Butler decided to avoid any appearance of self-dealing between Hutton Trust and Hutton & Co. by putting it in a non-Hutton mutual fund; Butler chose one, and the AE executed the trade by paying the money out of the brokerage account to the mutual fund, and that was the last we heard of it. Several months later, after Butler was gone from the Trust Company, the AE and Broyhill's lawyer started bugging me to submit the required report, and I couldn't find the assets -- I found Butler's note in the file saying which mutual fund he had picked, but when I asked that mutual fund, they denied having any account in either Broyhill's name or Hutton Trust's. I finally submitted the report anyway -- after all, as far as Broyhill was concerned the trust was deaf and dumb as well as blind, and it was easy to find out what dividends the fund had paid since the date the money disappeared in that direction -- and things were quiet for several months until Broyhill decided he wanted to move the trust somewhere else because we weren't cooperative enough about providing information about it. It took several weeks, but the AE finally found the account at the mutual fund, under Hutton & Co.'s name, closed it, and turned the proceeds over to Broyhill's lawyer. What's really funny, or scary, is when the AE found the account at the mutual fund, it was one of three in Hutton & Co.'s name with no indication of what customer they belonged to, and he just left the other two sitting there. 3: Paragraph 40 Mr. & Mrs. Burchard were a retired couple in about their 80s, each of whom had a trust, and most of the assets in the trusts were shares in a bank (I think it was in Illinois, but it might have been somewhere else in the Midwest) that Mrs. Burchard's father had founded and Mr. Burchard had been president of. They had retired to Arizona, and an AE in Hutton's Mesa office talked them into moving their trusts to Hutton Trust so he could sell the stock and use the proceeds to buy them some annuities from Hutton Life Insurance; the commissions AEs got for selling Hutton insurance were even higher than their brokerage commissions. By the time I found out about the trusts, the AE had already sold the stock, and when I told him annuities were an improper investment for the Burchards, he told me not to worry -- the insurance company wouldn't issue annuities on people their age, so he was going to sell them annuities on their son's life, and when they died the son would inherit and sell the policies and invest in something else, and the AE would collect a commission on each transaction! That struck me as an archetypical example of "churning" an account, which means repeatedly liquidating investments and reinvesting the assets to collect commissions on the new investments. I got into trouble with Abbes for it, but I went over the AE's head to his branch office manager, and the BOM did keep the AE from tying the assets up in insurance. For some reason, every few months the two Burchard trusts would pop up as exceptions in another internal audit, and I'd get a phone call from some Hutton employee somewhere in the country, and I'd explain what happened, and that person wouldn't bother me about it again. Then one day I got a phone call from a bank officer at the Illinois bank whose stock they'd owned; when the bank had gone to hold its annual stockholders' meeting, the Burchards hadn't voted the stock, and without it the bank didn't have a quorum, because between them they'd owned the majority of the stock. So the bank president had phoned the Burchards and found out what the AE had done and was doing, and he threatened to sue on behalf of the Burchards. I don't know how that situation finally came out, but I've often wondered. 3: Paragraph 41 Mary Alice Anthony had left a trust for her two sons and their children, and an AE in Hutton's Hyannis MA office talked one of the sons, Julian Kaiser, into moving "his" half of the trust to Hutton by promising Kaiser to pay him as much of the trust's income as he wanted. The trust document provided for pay-outs to Kaiser, who was a doctor, or his children if they needed them, and "need" was determined under Connecticut law. Kaiser's children appeared to need the money more than he did, especially as we found in the computer about four brokerage accounts in his name with substantial stock holdings in them, but the AE kept paying Kaiser all the income, and Abbes and Hitchcock kept letting him, although I kept putting memos in the file saying that was wrong, and the bank examiners kept saying in their audit reports it was wrong. In February 1986 one of Kaiser's children wrote to Hutton Group's then-CEO threatening to sue for the mishandling of the trust, but I never heard how that came out, either. 3: Paragraph 42 Those three situations -- involving trusts worth more than a million dollars and trustees' fees of tens of thousands -- are just the kind of problems any rational person would expect from not having any mechanism for Hutton Trust to track trust assets or supervise investments or distributions, but Hutton still shrugs them off as "typical back-office problems in a new venture" according to Shapiro's testimony on 1 October 1991. 3: Paragraph 43 Besides the comic relief, Hutton also provided some romantic interest: One of the CSD units was Hutton Portfolio Management, and it was headed by Greg Phipps, whom I found very attractive, but when I not too subtly let him know I was interested, he rather more subtly let me know he wasn't, so I didn't embarrass either one of us by pushing it. For the most part, Hutton employees didn't have much class -- which isn't to say they weren't great to work with and fun to party with, because they were, and the people were part of what I really loved about working there -- but Phipps used an Imari cup for his tea, even when he was alone in his office, you know what I mean? Once when we went to Hutton headquarters in New York to meet with some customers about bringing a big trust in, he took me on a walking tour around Wall Street, including Trinity Church and the Stock Exchange, and told me their history. 3: Paragraph 44 HPM, the program he ran, supervised AEs who had qualified to act as investment managers, instead of brokers, for their customers' Hutton accounts. So if an account was signed up for HPM, the AE made the buy-sell decisions and executed the trades but received a fee that was a percentage of the account's value instead of commissions on each transaction. Phipps handpicked the AEs who got into the program and supervised their training and their performance, and it was a class act all the way. 3: Paragraph 45 One of the times he had me speak to a group of HPMers about using trusts and the Trust Company was in Washington DC on 20 September 1984. It was one of those several-day affairs including training sessions and field trips, and one of the trips the day I was there was to the Capitol to meet one of Delaware's Senators and ride the little train under the building. But when we got to the Capitol, there'd been a bombing in Lebanon or someplace, and the Senators were taking turns being briefed in the little dome-of-silence room that doesn't hold very many at a time, and the Senator couldn't make it, so he'd asked Congressman Carper to meet with us instead. 3: Paragraph 46 I'd never taken much of an interest in politics, and although I'd moved to Delaware on 30 June and had recently registered to vote, I didn't yet know the name of our only Representative, but I did know we had only one. When he finally showed up in the small room where we were having soft drinks and cookies, he had his notebook under his arm, and I swear I thought the name on it was "Crapper," but I soon picked up that it was actually Carper. 3: Paragraph 47 He made conversation with the group, much of it about finances -- we'd just heard a lecture at the Federal Reserve -- and there was some kidding that the HPMers were from other states, so he was wasting his electioneering on them, and I said, "Well, I'm registered to vote in Delaware," and Carper joked, "Then I'll ignore these men and just talk to you." A little later, after he was told I was one of Hutton Trust's officers, Carper drew me a little aside and started explaining why he was having trouble getting the legislation we wanted through the Banking Committee. At first I didn't have the faintest idea what he was talking about, but the way you find things out is by listening, so I did. When I got back I talked to Hitchcock about it, and he told me Carper was trying to get federal legislation passed that would extend to Hutton Trust and Hutton Bank -- because they had been chartered outside the period to which the "non-bank bank" legislation applied -- and then I was able to make sense of what Carper had said about grandfathering. 3: Paragraph 48 That was around the same time that Hutton Trust acquired a new personal trust client, a corporation named International Development Programs Inc., the chairman of whose board was Wilbur Mills. An AE named John Jennison, in Hutton's C18 office in D.C. where Perry Bacon was BOM, had a client named Barton F. Walker Jr., who was president of Walker & Walker Associates, Inc., in Maryland and one of IDP's principals, so Walker had brought IDP to Jennison. IDP's president was Thomas M. Owen, whose phone numbers were in Virginia, and its lawyer was Francis L. Jung, who was also general counsel to American Pacific Trading Co. in D.C. The chairman of AmPac's board was Conrad K. Hausman, who was also one of IDP's principals. The other two IDP principals I dealt with were E. Doug Ward, executive vp of Astrotech International Corp. in Pennsylvania, and Daniel Craig, president of Norsud Corp. in California. 3: Paragraph 49 The companies these IDPers headed manufactured aircraft, and maybe tanks, guns, and other war toys -- they had mostly been pilots in WWII and/or the Korean Conflict, and Hausman had worked for Alexander Haig in Vietnam and then at the White House. Owen had been on LBJ's re-election committee, and he told some of the best war stories I ever heard: some about the parties his cousin Tallulah Bankhead used to throw, some about his misadventures as a pilot during the war, some about LBJ, and all of them hilarious. 3: Paragraph 50 IDP's 'raison d' tre' was to borrow money from the pension funds of companies that manufactured industrial, agricultural, and defensive equipment (which we took to mean aircraft, tanks, guns, and related paraphernalia), invest it in U. S. Treasury notes, and lend the interest to developing Third-World nations (mostly in the Middle East and Central America) that would use the money to buy industrial, agricultural, and defensive equipment (wink, nudge), probably from the companies that had anted up their pension funds. They explained to us that this was all part of President Reagan's plan to cut back on foreign aid from the U.S. government and get the private sector more involved; they said they had the required approvals and gave us phone numbers at the State Dept. and White House to check them out, but Abbes forbade me to do any checking: He said the only checking would be by Hutton & Co.'s president Pierce through Barbara Bush to her husband the VP, and then later he told me we had not just their approval but their encouragement. 3: Paragraph 51 But the reason IDP had come to the Trust Company then, as they told us, was that they couldn't pry any money loose from the pension funds -- remember I said that's where most of the investment money in the country is, but the trustees have to meet the high standards the law imposes on fiduciaries -- so they'd gone looking for money overseas and found some: The royal family of Saudi Arabia had a lot of money to invest but couldn't be seen to do so because of the Islamic prohibition against usury, so they had created something called the Crusader Trust, run by one of the big Swiss banks fronting for them. The Crusader Trust was willing to lend IDP $100 million for some number of years I've forgotten now, but the Swiss bank insisted on having an American financial institution hold the bag, and IDP had been up one side of Wall Street and down the other and been turned down everywhere. Then Bush asked Pierce to have Hutton do it, and Fomon agreed and told Abbes to take care of it. It was, of course, a personal trust, so it fell squarely in my lap, and I had most of the dealings with IDP. 3: Paragraph 52 The last week of October 1984 I had to go to Basel, Switzerland, on rather short notice to meet with Owen, Hausman, Walker, Ward, Craig, and someone from the Swiss bank, and that's when I finally saw the printout of how the transaction was supposed to work. There were two kinds of problems with it: One was that the bank wanted Hutton to sign as the one liable for paying the interest for the term of the loan and paying back the principal in Swiss francs at the end, so we would in effect be guaranteeing not only the interest rate on Treasuries but also the exchange rate, and we wouldn't; the other was that there were so many finders' fees and up-front points to be paid to the various players that it would take every bit of income from the Treasuries, compounded by being repeatedly reinvested over the term of the loan, to get the principal back to the amount to be repaid, and that didn't leave anything to pay the income taxes with. When I pointed that out, Owen said, "But we don't want to pay any income taxes," and I said, "Nobody wants to pay income taxes, but how do you expect to get out of it?" So they put me on the telephone to Mills -- whom they always referred to as "the Chairman" with such reverence that Abbes tried teasing them once by referring to Fomon the same way, but they were not amused -- back in the States to find out what the story was on taxes. That was the only time I ever talked to him, and he didn't have any idea how to get out of the taxes, either, but he said he'd get the guys there working on it. 3: Paragraph 53 While I was in Basel -- I went on Saturday the 27th and came back on Halloween of 1984 -- IDP took very good care of me, and except for when I went back to my hotel to sleep and a couple of hours the last afternoon when I walked around town, I was always with one of more of them. One evening Owen wanted to drive to Zurich for dinner at the Dolder Grand Hotel, so three of us went with him -- that's a whole story of its own, with Owen driving like Barney Oldfield on the autobahn and me falling back on my college German to navigate from an outdated map in the dark! While we were at the Dolder, Owen told us about the last time he'd been there, when he'd run into the exiled Shah of Iran and they'd talked about the good old days. 3: Paragraph 54 One day we drove across the corners of Germany and France on a little sightseeing excursion whose purpose seemed to be to let me see everybody's passports when we crossed the borders. They'd been hinting pretty hard that Hausman was CIA, but I kept acting like I hadn't caught on, and a day or so later Walker finally took me to brunch alone and just told me, but the two things I learned from their passports were that Hausman did, indeed, carry a diplomatic passport and that most of them, especially Owen and Walker, had been in and out of Iran a lot of times over the past year or so. 3: Paragraph 55 One evening when I got back to my hotel after dinner, there were some urgent messages from Abbes to call back, so I did, and because of the time difference he was still in the office. He got one of Hutton & Co.'s lawyers in New York on the phone with us to read us the riot act for my being there when the last thing the Legal Dept. had told me on Friday was not to go -- they kept referring to IDP's plans as "gun-running" and wanting us to drop IDP as a client, but all we did was quit telling them stuff that was only upsetting them -- but Bacon and Abbes had both told me later on Friday to go anyhow, with authority from Pierce and Fomon, and Jennison bought my ticket and wired me the money for traveler's checks. I'll always cherish the part of that phone conversation when Abbes asked the lawyer what they were afraid of, and he answered that after turning my head by getting me away from my own turf and into exotic surroundings IDP might get me to agree to something, to Hutton's detriment, that I wouldn't agree to at home; Abbes said, "If you think that, you don't know Kay very well!" Abbes knew, from trying to himself, it's virtually impossible to get me to do anything I don't intend to, and it really touched me to know he had so much faith in me, because by then I had a lot of regard for him, and I still do. 3: Paragraph 56 Some months later we started to realize why the Legal Dept. had been so hot about IDP when it hit the papers that Hutton had been involved in the money-laundering scheme the media called "the pizza connection." IDP kept talking to us for months about doing a deal, but nothing ever came of it. 3: Paragraph 57 Then on 2 May 1985 Pierce entered Hutton & Co.'s guilty plea to 2000 counts of federal mail and wire fraud in what came to be referred to as "the check-kiting." Too much has been written about that for me to have to describe it here; suffice it to say that Hutton had for several years taken advantage of the float on checking accounts by drawing checks to customers on accounts in banks at the other end of the country from where the customers were and then depositing the money to cover the checks later. Many of the AEs were shaken that Hutton had been doing anything so blatantly against both the law and the customers' interests, but I was surprised they were surprised, because it was the same thing Hutton was still doing through the Trust Company, and it was in keeping with everything I'd seen of the way Hutton was run. 3: Paragraph 58 Hutton was fined $2 million and agreed to pay up to $8 million in restitution to the banks, but Abbes and the other Hutton higher-ups I dealt with laughed that off as "chump change" compared to the amount Hutton had gained from it. They were, however, concerned that VP Bush was pissed off at the political flak he was taking for protecting Hutton, so they decided to hire a prominent Democrat to repair the political fences; they ended up paying former AG Griffin Bell about $2.5 million to handle the damage control. I can't help wondering if all the members of Congress who were shouting so loud then for someone at Hutton to go to jail would feel the same way now that their own check-kiting at the House bank has come to light. And if Carper hadn't known all along that what Hutton was doing was pretty shady, he has to have known it by the summer of 1985, but he kept trying to help Hutton get more favorable treatment under the federal banking laws. 3: Paragraph 59 Do you remember in "My Fair Lady" when Professor Higgins said, "The French don't care what they do, as long as they pronounce it correctly"? That's Hutton all over -- they didn't care that they broke the law, but they got all bent out of shape that the media reported they did. Here's Shapiro's October 1991 testimony about the check-kiting and related scandals: "Hutton had had a very bad press because of some federal charges, and they were very sensitive about adverse publicity." "Hutton had had a series of bad newspaper notices and was very sensitive to criticism in the press." Apparently the only lesson Hutton learned was that federal felony charges are bad publicity. Other than that, Mrs. Lincoln, how did you like the play? --- CHAPTER IV. A crock of malarkey 4: Paragraph 1 Meanwhile, back at the ranch, the plot was thickening: Hutton Trust was getting into trouble of its own. 4: Paragraph 2 The day I reported to work at Hutton Trust I was assigned to handle the transfer of assets for the Vietnamese Orphans' Trust: In April 1975 a number of children were being flown out of Vietnam to be adopted in North America and Europe when a hatch blew off the C-5A, so it crashed near Saigon, injuring many of the children permanently. In settlement of the litigation on behalf of the 45 survivors who were adopted in the U.S., Lockheed Aircraft Corporation had paid $13.5 million into a trust to provide compensation and the costs of medical treatment to the children for the rest of their lives. 4: Paragraph 3 The case had been in federal court in D.C., and a lawyer in the D.C. law firm McDermott, Will & Emery was appointed "co-trustee" to oversee the trust. The complicated trust document called for regular meetings of and reports to the children's parents, and the structure was rather like that of a corporation, with the co-trustee as the board of directors and the beneficiaries as stockholders. 4: Paragraph 4 The lawyer who acted as co-trustee was Charles R. Work, and the trustee had been American Security Bank in D.C., the one that advertised it was on the back of a currency bill. When I was doing my thesis on taxation of trusts and estates for my 1983 Master of Laws in Taxation at Georgetown University Law Center, my thesis advisor had been a senior trust officer from American Security, and he taught me just about everything I knew about the practicalities of banks' administering trusts before I came to Hutton. 4: Paragraph 5 An AE from Hutton's C18 brokerage office in D.C., Tom Clark, had persuaded Work to move the trust, which was down to about $2 million because most of the principal had already been paid to the beneficiaries, from American Security to Hutton Trust. Later on I found in the file the misrepresentations Hutton Trust made to the federal judge to get his approval, saying we were qualified to do business in D.C. when we were not qualified to do business anywhere but in Delaware, but all I knew the first day was that Butler told me to make arrangements to receive and invest the assets. 4: Paragraph 6 We were going to put the assets in three accounts and invest each separately to provide diversity of the investment portfolio and because part of the principal was earmarked for the trust's day-to-day operating expenses, but part was for long-term investment to cover pay-outs in the distant future, which would diminish continuously. American Security transferred stock to us, and we sold it and invested the proceeds in other securities; it was when that stock started coming in that I found out our SEI system was not programmed to accept data on market and book values of assets. 4: Paragraph 7 It was also when I had my first of many run-ins with Clark, because after I told Hutton's trading desk to invest the proceeds in the non-Hutton securities Butler had chosen to avoid a conflict of interests, Clark told me he had decided to invest in other, Hutton funds that paid him a commission. Abbes ordered me to bust our trades and honor Clark's orders, and I did; Butler was unhappy about it, but he was a lame duck. 4: Paragraph 8 Clark was one of the most obnoxious people I've ever met, and that was his reputation throughout Hutton. One AE who was, like Clark, such a big-volume salesman he was invited to the prestigious annual national meetings/blow-outs Hutton threw for its "Blue Chip" AEs, told me he had met Clark when he roomed with him at one of those conventions: The AE who was assigned to be Clark's roomie didn't want to be in with him, and this guy, who didn't know Clark but figured he could get along with anybody for a few days, agreed to swap room assignments. He told me that he hadn't believed anybody could be as obnoxious as Clark, and he was disappointed in himself to find out much and how soon Clark got on his nerves. 4: Paragraph 9 What's surprising is that anybody like him could make a living as a salesman, but that he managed to make such a good living selling proves a person can overcome really huge handicaps. At one meeting in Abbes's office in January 1985, which may have been the first time I met Clark in person, we were sitting at a small, round table discussing the trust, when Clark suddenly looked at me and asked, apropos of absolutely nothing, "Are you married?" I never found out why he asked, but I knew it was extremely inappropriate, and Abbes nearly threw himself on the table between us because he thought my temper was about to blow -- it's easy to tell when I'm seriously pissed off, because my ears turn red, my jaw muscles tense up, and my voice comes out sort of clipped and grating. 4: Paragraph 10 Hutton Trust was mishandling all the trusts, but the Vietnamese Orphans' Trust became the major bone of contention with the authorities because it had a better paper trail: The parents' committee and the federal court were both actively overseeing its operations, and its documentation was quite explicit about how it was supposed to be handled. I had gone several rounds with Clark and Work in January 1985, and because of those problems and the ones I described in the prior chapter, I was talking to some of Hutton's internal lawyers and AEs about setting up formal procedures for bringing in and managing trusts, but Abbes forbade me to promulgate any formal rules: He said that if we had written rules, we'd have to abide by them, and that he would not allow me to make rules that would interfere with the AEs' ability to keep treating the trust accounts the way they'd been doing. 4: Paragraph 11 In one of our discussions in his office, Abbes asked me what I thought was going to happen if we didn't set up some formal procedures, and I said the worst-case scenario was that the state bank commissioner would cancel our license to do trust business. He said I was supposed to keep it from coming to that, but if it did, we'd tie the commissioner up in litigation for at least three years, probably longer, and during that time we'd still be making money hand over fist, and when we got thrown out of Delaware we'd move to another state and keep going. That was the first time I was really scared at what I'd gotten myself into, and that's when I vowed not to do anything I could be legally liable for when it came time to throw some underlings to the wolves to protect Hutton. 4: Paragraph 12 In May 1985 the bank commissioner issued his annual audit report on Hutton Trust. Besides describing general problems with documentation and listing several specific trusts where there were problems, the cover letter and the text of the report were mostly about the Vietnamese Orphans' Trust. In the report, which was a confidential document not available to anyone except Hutton Trust's management, the commissioner said: 4: Paragraph 13 "Mr. Work is apparently delegating and carrying out his duties as co-trustee in direct violation of the above captioned agreement . . . File correspondence indicates investment policy decisions are being developed and directed primarily by two non-appointed persons, Mr. Thomas Clark, a sales broker for E. F. Hutton Company and the subject trust accounts' transactions, and Mr. Robert Warden, an associate attorney for Mr. Work's law firm. An apparent case of self-dealing and improper delegation of duties is evident when Mr. Work allows Mr. Clark to direct investment policy for the trust as well as take commissions form the sale of trust investments." 4: Paragraph 14 Keep in mind the timing -- this report came two weeks after the guilty plea to the check-kiting. By now the white-out and retyping of the monthly reports was taking more than a month, so we had trusts that hadn't received a statement from us since at least February. The bank where Hutton Trust had its three checking accounts refused to let us draw any more pension checks on funds that hadn't been deposited yet, so we moved our accounts to a different Wilmington bank. 4: Paragraph 15 And then Clark popped up with the possibility of getting the co-trustee of the trust for the Vietnamese orphans who had been adopted outside the U. S. to move it to Hutton Trust, too! We were trying to get straight with the commissioner about the mishandling of the one we already had, and he was bringing in another, bigger one he was planning to play just as fast and loose with and so create more problems. 4: Paragraph 16 Then the federal judge in D.C. ordered Hutton to show cause why it shouldn't be removed as trustee in light of the check-kiting. Despite my strenuous objections to Abbes and Hutton's inside lawyers in New York, Hutton represented to the judge that no one at Hutton Trust was involved in the check-kiting, and the two companies were entirely separate. That was enough for the judge, but it didn't happen to be true: The one person who was removed from most of his corporate offices at Hutton Group and Hutton & Co. for his involvement in the check-kiting was Thomas Lynch, who was chairman of Hutton Trust's board of directors. There was also the fact that Commissioner Malarkey had reported that an employee of Hutton & Co. was improperly running the Orphans' Trust. During that summer of 1985, I lay awake a lot of nights looking for a way to keep Hutton Trust out of legal trouble and keep myself from being dragged down, too. 4: Paragraph 17 I'd applied for admission to the Delaware bar and taken the bar exam the end of July, and Rod Ward was my preceptor, so I was frequently discussing with him and with Dave Garrett both Hutton's situation and my own, especially the ethical aspects. 4: Paragraph 18 By the end of September, Hutton Trust was operating with a siege mentality: Hutton Group was interviewing people to replace Abbes and Hitchcock as CEO and president, and several of us vp's, especially Ron Hatton and I, were maneuvering to move up in the shuffle. On 8 October I took a business trip to the Alexandria VA brokerage office, and while I was gone there was a flap about a friend of Hatton's applying for the job of CEO -- Abbes had found out Hatton had told his friend, an officer at a bank in, I think, Pennsylvania, about the opening, and Hutton in New York had interviewed him. It was really funny, but the BOM in Alexandria had filled me in on what was happening at Hutton in New York and why, and that wasn't funny: He and many other BOMs around the country had demanded that Fomon replace Abbes and Hitchcock because Hutton Trust wasn't delivering its statements, and the pension trust customers, who were already nervous because of the check-kiting, were starting to bail out of Hutton in droves. 4: Paragraph 19 Abbes and Hitchcock were upset and taking it out on us, and for the first time it wasn't much fun to work at Hutton Trust. As a lawyer I had a particular problem: The ethics rules prohibited my lying to a court, I was Hutton Trust's lawyer, and I knew it had lied to Judge Oberdorfer about Hutton & Co.'s involvement in managing the Orphans' Trust. I decided the ethics rules required me to tell Judge Oberdorfer the truth, but they didn't require me to lose my job if I could help it. (I'd been looking for another job for months, but I never got any offer.) 4: Paragraph 20 First I telephoned the judge's chambers and talked to his clerk; I said I had a copy of a document that bore on how the trust was being managed, and I wanted to send it to the judge, but I needed to know he wouldn't say who gave it to him. The clerk, who was probably right out of law school because he had the arrogance and inflated sense of self-importance you often find in new clerks but seldom in the judges themselves, told me anything they received would be made public, and so would the circumstances under which they received it. So much for the direct approach, but in a way that simplified matters for me, because it meant I didn't have to worry about keeping the commissioner's report confidential, because as soon as the judge got it, he was going to make it public anyhow. 4: Paragraph 21 After several more days of thought, I decided the only kind of person I could trust to carry the report to the judge and not say who gave it to him was a journalist, so I called the 'Washington Post' and talked to a reporter there. After several conversations, in which I did not give my name or any information he could trace me by, some days later I agreed to send him a copy of the report, and he promised to take it directly to Oberdorfer; I believed he would, because any good reporter would naturally take it to the judge first and see what happened -- that would make for a better story. 4: Paragraph 22 So I mailed, anonymously, a copy of the bank examiners' report to the reporter and waited to see what would happen, and two things did: First, Hutton bought off the 'Washington Post'! After the 'Post' took the report to the judge and got him worked up, a reporter called Hutton for comment before publishing the story; for about two days Hutton Group's highest officials spent a lot of time on the phone with the 'Post''s owner, and then the 'Post' killed the story. That scared the hell out of me, because I hadn't thought anyone had that much clout, but when the VP's brother-in-law is one of your senior officers, I guess everyone in D.C. listens when you talk. 4: Paragraph 23 The second thing that happened was that on 31 October Oberdorfer issued a notice scheduling a conference for the next week to discuss, among other things, why he hadn't heard about the bank commissioner's report until the reporter showed it to him. The upshot was not only that Hutton lost the European orphans' trust that was coming in, but Work and Hutton were removed as co-trustee and trustee of the one we already had; it was consolidated with the European one all right, but in the hands of the trustees that already had that one. 4: Paragraph 24 Abbes always believed I was the one who leaked the commissioner's report to the 'Post', but he couldn't prove it, and I never admitted it to him. Not that I was ashamed of what I'd done -- quite the contrary, as I'd done what the ethics rules required me to do and the corporate bylaws authorized me, as a vp, to do -- but once the 'Post' knuckled under to Hutton, I knew the undercurrents were too strong for me to keep rocking that particular boat. 4: Paragraph 25 By December Hutton Group had decided to send someone down to Hutton Trust to whip things into shape, and they chose Ken Simon; he had us hire every accountant and accounting clerk the temp agencies in Wilmington could provide, and then we got some from Philly, too, and we started digging out from under the mountain of overdue statements. 4: Paragraph 26 At Hutton Trust's board of directors meeting on 4 December, I got a nasty surprise: As corporate secretary, I was there taking the minutes, and because of how much trouble we were in, Fomon attended the meeting. At one point he asked how our efforts with "the Congressman" were coming, and Ellis answered that we had Carper "under control," that Phipps was telling him what laws we wanted passed, and it was okay to release the campaign contribution Carper was supposed to get for his help. 4: Paragraph 27 During the 1990 campaign, Carper's opponents showed me his campaign-contribution reports from that period, and they reflected two equal contributions from Hutton; I don't remember now -- the amount I think I recall them being was $20,000, but that may have been the total. They told me that when they asked Carper about them, he said the second one was a clerical error, that Hutton had made only one contribution, and he'd later given it back, but when he paid it back it got added to the report instead of subtracted. That, of course, raises the questions of why he gave it back and why he can't tell the difference between adding and subtracting that much money in his checking account records, but with what we know about House banking now and his three bad checks, it's remotely possible. 4: Paragraph 28 But Carper sent me a letter dated 17 February 1987 in which he referred to Phipps as his "friend and supporter," and I know Ellis identified Phipps to Fomon as the bagman who was controlling Carper for Hutton, so I'm left wondering whether Carper is a fool, who didn't know he was being controlled by Phipps, or a liar, who didn't know I knew it. 4: Paragraph 29 Remembering the definition of "honest politician" as one who, once he's bought, stays bought, Carper seems to be an honest politician, and the facts that he's a Democrat and Hutton is a Republican bastion merely reflect the reality that in Delaware party labels don't count for anything, and the Establishment is the only party that does count. 4: Paragraph 30 By February 1986 I was in the position Tom Lehrer described as that of a Christian Scientist with appendicitis: I couldn't afford to quit Hutton Trust until I found another job, and I couldn't get another job because I'd been working for Hutton Trust; if I stayed I might end up in trouble when the authorities found out what Hutton Trust had been doing, and if I left they would certainly blame the illegalities on me when they got caught -- I was, after all, the one who'd been sending memos describing them to our directors and lawyers, so I was the only one on record as knowing what was happening. 4: Paragraph 31 By January Abbes was trying to get me to quit, and he started removing my titles and duties, and under the corporate bylaws he didn't have the authority to do that without a vote of the board of directors. In February I gave Hutton's inside lawyers an ultimatum offering them their choice of three alternatives: One, Hutton could straighten out Hutton Trust and let us start handling the trusts the way we were supposed to, so no one would get into trouble with the authorities. Two, Hutton could pay me $500,000 and give me a release, saying I wasn't responsible for what had been going on there, and I'd resign and stop talking to the press and anybody else except under subpoena; I thought that was enough to support me until I lived down having worked at Hutton Trust and found another job. Three, I'd sue Hutton and get the court to rule I wasn't responsible for the illegalities at Hutton Trust. 4: Paragraph 32 Then at the beginning of March the bank examiners showed up for their annual audit. On Wednesday, 5 March, John Smith, who was the examiner heading the audit and one I knew from earlier audits, told me they'd want to talk to me the next day; about 2:30 the next afternoon, he phoned me to come to our glass-walled conference room, and I went. I'd hardly sat down and given my name and job title when Hitchcock, who was skittering up and down the hall watching what was going on in the conference room, stuck his head in the door and asked me to step out in the hall; he told me I was not allowed to talk to the examiners without him, and he was too busy to be present that day -- yeah, too busy not letting anyone talk to the examiners. I asked if I should tell them, and he said he would, so I went down the hall to my office. 4: Paragraph 33 A few minutes later Smith walked into my office, handed me a slip of paper with a Dover phone number, and told me to call the bank commissioner's office and make an appointment, because they had to talk to me, especially in light of what had just happened. As luck would have it, I was scheduled to be in Dover the next day to be sworn into the bar, so I called and made an appointment for the afternoon of Friday, 7 March. 4: Paragraph 34 By then it was after 3:00 o'clock. The examiners packed up and left about 4:00 o'clock, and a few minutes later Hitchcock phoned and asked me to come to Abbes's office; I knew Abbes was going to fire me, and he did, telling me to pack up and be out by the close of business that day. 4: Paragraph 35 When Butler had left Hutton Trust -- by which I mean the day he actually left, although he'd been given notice a month or more before -- he'd had a falling out with Lockwood, and Lockwood had made a scene, shouting in the hall and ordering Butler off the premises immediately; it had upset everyone, and then we'd held up Butler's last paycheck, and he'd gone to the state labor board and to a lawyer, and it'd been a mess, both legally and from the employee relations standpoint. I'd always teased Abbes that when it came time to fire me, I expected him to handle it better than that, and he did. 4: Paragraph 36 With the help of my secretary and tax clerk, I packed up my stuff, then I went home and telephoned the 'Wall Street Journal' to tell them what had happened. They ran several stories about it over the next weeks, and the local newspaper picked it up, as did the national wire services. Judge Oberdorfer had put Commissioner Malarkey's 1985 audit report in the court record, so it was a public record then, and I gave copies to the reporters who asked for it; they wouldn't have printed my allegations about the mishandling of trusts at Hutton if they hadn't seen the evidence, and that report was the most comprehensive part of the evidence. 4: Paragraph 37 On 18 April the 'Wall Street Journal' reported that Abbes and Hitchcock had resigned, but for personal reasons and not because of my accusations, and that Malarkey said he hadn't found "any evidence that the unit mishandled trust assets or violated fiduciary obligations." That was remarkable enough, given that his own report from the year before had listed specific instances of mishandling and fiduciary breaches, but a few weeks later, in "the late spring or early summer of '86," he delivered to Hutton Trust the report of the 1986 audit, the one he'd been conducting when I was fired, and it reported that the same problems cited the year before still existed! But the two audit reports were confidential, so Malarkey could stand up at his press conference and say in public there was no truth to my charges, when his own reports, delivered before and after the press conference, proved what I was saying. 4: Paragraph 38 I'd been taught in law school that a civil lawyer's main function is to avoid litigation, to get cases to settle without going to trial. So I wrote some letters to Hutton asking them to settle my legal claims against them without making me file suit. In a letter dated 22 September 1986, Hutton's new legal vp Stephen J. Friedman called my "demands" extortion and said they were looking into having me disbarred in every jurisdiction where I was admitted to practice law. 4: Paragraph 39 I tried for months to hire a lawyer to represent me, but no one would, and then one of my mentors told me the word was out, and I wouldn't be able to find any lawyer who would sue Hutton for me. So on 31 August 1987 I filed a civil RICO suit against Hutton Group, Hutton & Co., and Hutton Trust in federal court in Wilmington, and I filed it 'pro se', which means for myself, without any attorney representing me. 4: Paragraph 40 I hadn't known much about RICO before 1987, but I'd done enough research to know that was the legal theory I wanted to use: Because I lived in Delaware and all three Hutton entities were Delaware corporations, there wasn't diversity of citizenship, so I couldn't go to federal court unless I raised a federal question, and the RICO statute was federal, so it provided jurisdiction. Also, that statute required the court to award me three times whatever damages I proved I had suffered, plus court costs and attorney's fees. --- CHAPTER V. Tilting at windmills for fun and profit 5: Paragraph 1 At the same time the events I've described were happening to me at Hutton Trust, someone else was having a similar experience at another company incorporated in Delaware. Like me he was a senior executive at a subsidiary of a national conglomerate and a shareholder in the conglomerate, but unlike me he was the CEO of the sub because he'd started the smaller company and sold it to the conglomerate, and his block of the parent's stock was significant. Like me he was dissatisfied with the asinine and illegal way the conglomerate was operating and how it was forcing him to operate the sub, and he'd been telling the national press about it. 5: Paragraph 2 By the summer of 1986 he'd given the conglomerate an ultimatum with three alternatives: Either let him run the sub the way it should be run or buy him out so he could leave, or else he'd sue them. After that his story is vastly different from mine, but then he was H. Ross Perot, the conglomerate was GM, and his sub was EDS. 5: Paragraph 3 GM did buy Perot's GM stock back, and he resigned from EDS and promised to quit criticizing GM, but GM paid him so many millions of dollars that its shareholders sued GM and Perot, calling the payment "hushmail." The Chancery Court has ruled twice in the matter, and the Delaware Supreme Court once, and they're agreed that GM's board acted properly in paying Perot to get out because his grousing was interfering with the way the board was trying to run GM. If it wasn't extortion for him to give GM his ultimatum, and the courts have ruled it wasn't, then it couldn't have been extortion for me to give Hutton the same ultimatum. 5: Paragraph 4 Another situation was shaping up in 1986 that also led to a civil RICO suit for violation of the federal securities laws and for extortion: In 1986 Carl C. Icahn started buying more stock in Viacom International, Inc., and threatened to take the company over; in May Viacom bought back its stock from him, for $79.50 per share when it was trading at $62, and he promised not to buy any more Viacom stock for eleven years. Then Viacom sued him for extorting this "greenmail" from it, the federal court in New York dismissed the suit, and the appeals court affirmed, saying Viacom hadn't been damaged because what it got from Icahn was worth what it paid. 5: Paragraph 5 In its published opinion the district court discussed the difference between "extortion" and "hard bargaining" and concluded that it's not extortion if the person demanding the payment has a right to assert the legal claim he's offering to release in exchange for the payment -- Icahn had the right to try to take Viacom over, and he could release that right in exchange for Viacom's payment. I had a right to sue Hutton for firing me and for ruining my reputation by involving me in its criminal activities, and I could release that claim the same way anyone hurt in a car accident can settle his claim against the driver or his insurance carrier. 5: Paragraph 6 Of course those cases were decided within the past year or two, so when I filed my case in 1987, there were no precedents with such similar facts. I'd like to take credit for behaving so much like the big boys in 1986, but the truth is I wasn't clever enough or experienced enough to have dealt with Hutton the way I did without the expert advice I was receiving, especially that from Dave Garrett, an expert in trust banking, and Rod Ward, an expert in corporation law. Because Hutton had been their client before I met them, however, and their relationship with me grew out of that relationship with Hutton, they could not represent either one of us in our litigation. 5: Paragraph 7 One reason I say Ward is so smart it's scary is that one day in autumn 1985 I was in his office telling him what was happening at Hutton Trust, and he said, "You know if you have to sue them, I won't be able to represent you." At that point I was so busy fighting alligators I'd forgotten about draining the swamp, and that possibility had never even crossed my mind, but I suddenly saw that I might, indeed, end up suing Hutton, and all the big lawyers would be on their side. But the silver lining to that dark cloud also appeared to me, so I answered, "Yes, but you won't be able to represent them, either." And that's the way it played out a couple of years later. 5: Paragraph 8 In early 1987, while I was still looking for a lawyer to sue Hutton for me, I got another one of those nasty shocks that made me nervous about going up against Hutton: The tv news shows were talking about Iranscam, and I noticed on the ABC news one night (I don't pay much attention to news, but 'Jeopardy!' comes on that channel at the end of the national news) that the IBC statements they were showing were monthly statements from a Hutton & Co. account. Like a light bulb going on over my head in a cartoon, a lot of things I'd seen and heard in dealing with IDP in late 1984 clicked into place, and I realized I'd been mixed up in Iranscam. 5: Paragraph 9 I was really worried then that when I sued Hutton they would accuse me of some criminal violation for having dealt with IDP, and if I got into a pissing contest with Hutton, I was going to be at a distinct disadvantage, so I decided I had to act first. I wrote to the 'Wall Street Journal' reporter who'd reported my firing, telling him what I knew about IDP and asking if he thought it was part of Iranscam or was I just being paranoid; I got a phone call a few days later saying his sources indicated I was onto the real thing. Then I wrote to the Senate Select Committee on Secret Military Assistance for Iran and the Nicaraguan Opposition telling everything I knew about IDP and what I'd done with them; a few days later I got a phone call from one of that committee's staff attorneys checking to see if I had any more information but saying because of the nature of their investigation they wouldn't be able to tell me what came of the leads I gave them. 5: Paragraph 10 At about the same time, I'd tried to file a criminal RICO complaint with the federal prosecutor in Wilmington, because one of the lawyers I'd consulted about representing me was a former federal prosecutor and said the documents I had were sufficient to support an indictment against both Hutton and Malarkey, and I should let the government handle the litigation, because it would be all over the country and take a lot of money. But all U. S. Attorney Bill Carpenter did was send an FBI special agent to talk to me, and he kept nodding off to sleep while I was trying to talk to him about the banking violations at Hutton Trust; when I mentioned Iranscam, however, he perked up, and some days later he came back with his supervisor and asked some more questions about it. That's how I know I didn't just imagine that IDP was part of Iranscam. 5: Paragraph 11 When Skadden Arps couldn't represent Hutton against me because of its conflict of interest, Hutton hired Morris, Nichols, Arsht & Tunnell; the grown-up lawyer on the case was Thomas Reed Hunt Jr., and the associate who did the scut work was Brett D. Fallon. I'd had vanishingly little practical experience of civil litigation, and I learned a great deal from seeing them work; I wouldn't realize it until later when I saw how bad some of the other lawyers in town are, but in their dealings with me they exemplified the highest standards the bar sets for itself. 5: Paragraph 12 Which is not to say they didn't put up a good fight, but they fought clean and fair, and it never got personal. Even when Hunt told me they were not only going to have the case dismissed but also have the court order me to pay their costs and attorneys' fees, he was a perfect gentleman, and I admired his style. I answered that the most they could do was drive me into bankruptcy, and then I'd load my dogs and my clothes in the car, leave the bank to foreclose on the house, and move in with my parents in Mississippi -- since the kids have moved out, they have three bedrooms and two baths with no one to use them, and there's a motel-sized pool in the back yard, so it wouldn't be too hard a life. 5: Paragraph 13 We futzed around with the litigation for nearly two years, and in March 1989 Judge Joseph J. Longobardi dismissed my complaint for lack of standing, saying I wasn't directly injured by the RICO conspiracy I alleged, and that calls for a little discussion of the RICO statute. 5: Paragraph 14 Congress made the "Racketeer Influenced and Corrupt Organizations" chapter part of the federal criminal code, effective 15 October 1970, to be able to prosecute organized crime for using legitimate businesses as fronts or money laundries for the proceeds of criminal activity. It defines "pattern of racketeering activity" to be at least two felony violations of certain state or federal statutes committed by the same person within 10 years, and at least one act has to have been after this law went into effect. The statute makes it a crime to use money from such racketeering activity to start, buy, or run a business engaged in interstate commerce or to conspire with somebody else to do so. 5: Paragraph 15 Besides being a criminal law, the statute also provides that anybody "injured in his business or property" by a violation of the RICO statute can sue in federal court and "shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee." The so-called "predicate acts" that form the pattern of racketeering activity include mail and wire fraud ("wire" usually means "telephone"), embezzling from union funds (which some of the pension funds were), and securities fraud. 5: Paragraph 16 I said in my complaint that Hutton Group had set up Hutton Trust to allow Hutton Group to collect trustees' fees from the same accounts it was collecting brokerage commissions from, through Hutton & Co., but that Hutton Group never made or let Hutton Trust perform the trustees' duties to earn the fees, and that violated the RICO statute. I said that they hired me and the other employees by making us think Hutton Trust was a legitimate company when it wasn't, and that was fraud on us in furtherance of their RICO conspiracy against the trust clients, and firing me to keep me from answering the bank examiners' questions injured me, and therefore I'd been injured in my business or property by their RICO violation, and I was entitled to recover. Judge Longobardi didn't agree. 5: Paragraph 17 I appealed the dismissal to the federal appeals court, which sits in Philadelphia, and served the notice of appeal on Hunt, but then Hutton switched lawyers. That was probably a practical rather than a tactical decision -- Hutton had been bought by Shearson Lehman in 1988, and in fact I'd filed a suit in Chancery Court complaining, among other things, that Shearson didn't pay us shareholders enough for our Hutton stock in their merger because of Hutton's legal liabilities, which Shearson bought along with Hutton's assets -- because Richards, Layton & Finger, the firm that replaced Morris Nichols, had been working for Shearson for some time. Replacing Morris Nichols was a strategic error on Hutton's part, though. 5: Paragraph 18 Although we were litigating a federal claim in federal court, they assigned the case to Anne C. Foster, a lawyer with virtually no experience in federal court who wasn't even admitted to practice in the federal courts yet -- most of her experience was in Chancery Court, in cases alleging breach of the corporate directors' fiduciary duties to the shareholders, where all the corporation has to prove is it had a business reason for doing what it did, and it wins. She has never seemed to grasp the idea that in a RICO suit it doesn't matter why you did it: If you did it, you're guilty. But it probably didn't matter what she thought, because Hutton was always an extremely sexist organization (and Shearson seems to be upholding that tradition), and they would never pay much attention to anything a woman said anyhow -- that was always my problem with Hutton: I couldn't get their attention because they've never to this day taken me seriously. 5: Paragraph 19 There are no trials in appellate court: Both sides submit written briefs, and the court may hold oral argument, but the hearing is just for argument, no testimony or evidence. In this case the court didn't ask for oral argument; we sent in our briefs, and in September 1989 the court issued a published opinion reversing the dismissal and saying I did so have standing to sue Hutton under RICO. Given the appellate court's opinion on the law, all I had to do was prove the facts I'd alleged in my complaint, and I had to win. 5: Paragraph 20 Any reasonable defendant would have settled the case right then, but not Hutton. Two years later, in September 1991, we finally went to trial; not only had Hutton kept sniping at me and squabbling about stuff that didn't matter, but Longobardi had been so cranky to me as to border on hostility. 5: Paragraph 21 Take the famous forged U-4, for example: In the fall of 1985, when I was trying to find another job either inside Hutton or outside it, managers of several Hutton & Co. units were talking to me about coming to work for them, but to share in commissions I'd have to have a "Series 7" license. By then my relationship with Abbes was rather brittle -- because he'd asked me to quit, and I'd not only refused but also told several Hutton & Co. "heavy hitter" AEs who owed me favors, and they'd told Abbes they didn't want me fired because I was helping them so much -- so I sent a memo to Lynch asking him if I could be licensed, and he said I could and forwarded it to the Hutton & Co. department that handled licensing. 5: Paragraph 22 They not only registered me for the exam but also sent me the materials to study for it, as well as the Form U-4 that is the application to be a "registered representative," which is what an AE is and what you have to be to get paid a brokerage commission. You also have to be employed by a member of the Stock Exchange, which Hutton & Co. was, but Hutton Group wasn't, and of course Hutton Trust wasn't. The form had a part the applicant was supposed to fill in, with name, address, employer's name and address, and recent employment history in it, and then there was a part the employer was supposed to fill in and sign; above where the applicant was supposed to sign it recited, among other things, that the applicant agreed to binding arbitration, under the NYSE rules, of any dispute between the applicant and the employer. 5: Paragraph 23 The instructions said fill it in in black ink and print, and we couldn't find a black pen anywhere at Hutton Trust, so Abbes told me to fill it in in blue ink and then make a photocopy and sign that as the original; he also told me to fill in the part he was supposed to do, and when I said the employer was supposed to do that part, he said he was doing it, by having his employee (me) do it, and he was right, so I did. I made the photocopy, and he and I signed it, then I sent it to Hutton in New York. 5: Paragraph 24 After I filed suit, Hutton moved to dismiss on the grounds that I'd agreed to binding arbitration, and they submitted a copy of the U-4 they'd sent to the securities authorities when they registered me. But, lo and behold, where I had accurately printed Hutton Trust's name and address in the block for my employer, someone at Hutton in New York had whited that out and written in Hutton & Co.'s name and address. I still had the original blue-ink version, so I figured I had Hutton by the short hairs: They'd just produced evidence they lied to the securities authorities by mail and telephone, and that was mail and wire fraud, actionable under RICO. But Longobardi keeps saying that I was equally at fault in falsifying the U-4 because I filled in the employer's section! 5: Paragraph 25 There's also the matter of unemployment benefits: Hutton Trust's bylaws defined me as a senior corporate officer and provided that a senior officer could be fired, with or without cause, only by a three-fifths vote of the board of directors. (Abbes kept asking me to resign because he didn't want to have the directors vote on it; that's how he'd gotten rid of Butler, and then Abbes changed the old board minutes to make it look like Butler hadn't held the offices it required a board vote to terminate.) When I was fired, I filed for unemployment benefits, and Hutton didn't answer the claim; I submitted the newspaper clippings where Hutton said I was fired for making improper demands, and the unemployment office made written findings that didn't amount to cause under Delaware law, so I collected unemployment for much of 1986. 5: Paragraph 26 After I filed suit, Hutton also moved to dismiss on the grounds that I'd been fired for cause, and it submitted minutes of a board meeting ratifying my termination for cause but not saying that the vote was more than a simple majority. Given the bylaws requiring a supermajority vote and the ruling of the unemployment office, which Hutton didn't appeal when it had the chance, Hutton's position had to be rejected as a matter of law, but Longobardi has always treated it as an open question whether I was fired for cause, as Hutton says, or to keep me from talking to the bank examiners, as I say. I could give you more examples of how Longobardi, who's now chief judge for the district, has sided with Hutton to give me a hard time, but you get the idea. 5: Paragraph 27 The trial took most of two days: 30 September and 1 October 1991. I testified the first day, and my cross examination continued into the second day, then Hutton put on four witnesses: one of Hutton's inside lawyers who was still working for Shearson, Abbes, Hitchcock, and Shapiro. Not only did they not contradict my allegations, they actually testified that they were true in every material aspect! 5: Paragraph 28 There were many comical moments: Hitchcock, trying as usual to wimp out from under any responsibility, testified to not having known then or not remembering now most of what I asked him, and Abbes testified to not knowing who had issued his pay checks. While I'd been testifying, I'd several times tried to introduce a subject, like Lockwood's tantrum when he fired Butler, and Foster had objected, and Longobardi had ruled it out; then her witnesses got on the stand and testified to it for me. The way Longobardi fawned all over Shapiro would have been funny if it weren't so pathetic: The only thing more disgusting than having to watch a federal judge suck up to anybody that much is having the guy he's sucking up to be your opponent's star witness. 5: Paragraph 29 I was suspicious of my good fortune when the first three witnesses not only didn't counter my evidence but actually supported my case, but then Shapiro took the stand and did so much to help me that I considered whether I was dreaming, and the alarm clock would go off any minute for me to get up and go to the real trial. Malarkey was dead by then, and I'd figured there was no way to prove who was responsible for his lying to the press -- saying there was no truth to my charges when his own reports documented everything I was saying -- so I hadn't even included any defamation claims in my complaint, but the appellate court had ruled that "loss of earnings, benefits, and reputation constitute self-evident injury as in any standard wrongful discharge action." My reputation had certainly been injured by his making me out to be a liar, but I doubted I'd be able to blame Hutton for it -- I'd expected Hutton to be smart enough to say Malarkey must have done that on his own, so Hutton wasn't liable to me for it. 5: Paragraph 30 But Shapiro testified -- voluntarily, on direct examination, in answer to Foster's questions, and before I even started to cross examine him -- that he was the one who suggested that Malarkey tell the reporters that! That admission meant Hutton was liable for the deliberate injury to my reputation, because one of the federal civil procedure rules says that if you prove something at trial that you didn't put in your complaint, it shall (not "may" but "shall") be treated as if you did include it in your complaint. That was like Christmas coming early, but then it got even better. 5: Paragraph 31 Shapiro had testified on direct examination that when Malarkey issued his 1986 audit report on Hutton Trust, it showed the same problems that had been described in the 1985 report, what Shapiro helpfully described as the kind of problems you'd expect from having brokerage people trying to run a bank. I'd never seen the 1986 report, and I hadn't asked for it during discovery because it was written after I'd been fired, so I knew Longobardi would rule I couldn't have it, and I'd hate like the devil to give either him or my opponents the satisfaction of keeping me from getting something I want. But I knew the federal evidence rules pretty well, and one of them says if a witness looks at a document to refresh his recollection before testifying, you get to see it. 5: Paragraph 32 So I asked Shapiro if he'd reviewed any documents in preparation for testifying, and Bingo! He admitted to reviewing the commissioner's 1986 report, I asked for it, and Longobardi said they had to let me see it; Foster objected and kept dithering about it being too late for me to make a request for Hutton to produce documents, but that just showed she didn't understand the rules of evidence. Moments like that made the trial truly memorable. 5: Paragraph 33 Neither Hutton nor I had asked to have a jury for the trial: I didn't, because I thought the breaches of fiduciary duty, both the trustee's duties and the directors' duties, were too technical for many jurors to care about, and I wasn't sure a jury would see me as a sympathetic plaintiff; you'd have to ask Hutton why they didn't want a jury. Besides, a jury comes back with a verdict, and you're pretty much stuck with it, but when you have the judge decide the case, he has to issue an opinion setting forth his reasons, and if you appeal his ruling, the appellate court goes over his reasoning as well as his result. And whatever his shortcomings of intellect and temperament, Longobardi used to be a vice chancellor and so must have a solid background in both types of fiduciary breach. 5: Paragraph 34 At the end of the evidence on 1 October, he gave us an expedited schedule for filing our written arguments because, he said, he wanted us all "to deal with this while it's hot and fresh in our minds." The last brief was submitted on 7 December 1991; as I write this, in June 1992, we're still waiting for him to deliver the verdict. 5: Paragraph 35 I know that he'll have to give us a decision sooner or later, and then one or both of us may appeal it, so this litigation may drag on for several more years, but it will eventually be over, and I'll be able to get on with my life. In the hope that this year will see the end of this case, which has cluttered up my present and future for more than six years, I've written the story now, for two reasons: Personally, when the case finally ends, I don't want to have to think about it anymore; politically, this information should be stirred into the mix upon which we'll base our electoral decisions in November. 
4365	----	Supplemental Copyright Information As Published by The United States Copyright Office (USCO) Included in this Project Gutenberg etext are the following items, published by the United States Copyright Office. Each item is separated by a page break and a string of 5 asterisks (*****). a. Circular 3: Copyright Notice b. Circular 15: Renewal of Copyright c. Circular 15t: Extension of Copyright Terms d. Circular 22: Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA) e. WIPO Copyright Treaty ***** United States Copyright Office Circular 3 Copyright Notice ======================================================================== INTRODUCTION The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works. This circular discusses both the copyright notice provisions as originally enacted in the 1976 Copyright Act (title 17, U.S. Code), which took effect January 1, 1978, and the effect of the 1988 Berne Convention Implementation Act, which amended the copyright law to make the use of a copyright notice optional on copies of *works published on and after March 1, 1989*. Specifications for the proper form and placement of the notice are described in this circular. Works published before January 1, 1978, are governed by the previous copyright law. Under that law, if a work was published under the copyright owner's authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States. The Uruguay Round Agreements Act of 1994 (URAA) (PL 103-465) modified the effect of publication without notice for certain foreign works. Under this Act, copyright is automatically restored, effective January 1, 1996, for certain foreign works placed into the public domain because of lack of proper notice or noncompliance with other legal requirements. Although restoration is automatic, if the copyright owner wishes to enforce rights against reliance parties (those who, relying on the public domain status of a work, were already using the work before the URAA was enacted), he/she must either file with the Copyright Office a Notice of Intent to Enforce the restored copyright or serve such a notice on the reliance party. For more information about the copyright notice under the law in effect before January 1, 1978, request Circular 96 Section 202.2, "Copyright Notice", from the Copyright Office. For more information about restoration of copyright under the URAA, request Circular 38b, "Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA)." --------------------------- USE OF THE COPYRIGHT NOTICE --------------------------- Copyright is a form of protection provided by the laws of the United States to authors of "original works of authorship." When a work is published under the authority of the copyright owner (see definition of "publication" below), a notice of copyright may be placed on all publicly distributed copies or phonorecords. The use of the notice is the responsibility of the copyright owner and does not require permission from, or registration with, the Copyright Office. Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if the work carries a proper notice, the court will not *give any weight to a defendant's interposition of an innocent infringement defense*--that is, that he or she did not realize that the work was protected. An innocent infringement defense may result in a reduction in damages that the copyright owner would otherwise receive. For works first published on and after March 1, 1989, use of the copyright notice is optional. Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published before that date could result in the loss of copyright protection if corrective steps are not taken within a certain amount of time. The curative steps are described in this circular under "Omission of Notice and Errors in Notice." The Copyright Office does not take a position on whether reprints of works first published with notice before March 1, 1989, which are distributed on or after March 1, 1989, must bear the copyright notice. WHAT IS PUBLICATION? The 1976 Copyright Act defines publication as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." An offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display also constitutes publication. The following do not constitute publication: printing or other reproduction of copies, performing or displaying a work publicly, or sending copies to the Copyright Office. COPYRIGHT NOTICE NOT REQUIRED ON UNPUBLISHED WORKS The copyright notice has never been required on unpublished works. However, because the dividing line between a preliminary distribution and actual publication is sometimes difficult to determine, the copyright owner may wish to place a copyright notice on copies or phonorecords that leave his or her control to indicate that rights are claimed. An appropriate notice for an unpublished work might be: Unpublished work (C in a circle symbol) 1998 John Doe. ------------------------------------------------------------------------ FORM OF NOTICE -------------- The form of the copyright notice used for "visually perceptible" copies--that is, those that can be seen or read, either directly (such as books) or with the aid of a machine (such as films)--is different from the form used for phonorecords of sound recordings (such as compact disks or cassettes). VISUALLY PERCEPTIBLE COPIES The notice for visually perceptible copies should contain three elements. They should appear together or in close proximity on the copies. The elements are: 1. *The symbol* (the letter C in a circle), or the word "Copyright", or the abbreviation "Copr."; and 2. *The year of first publication.* If the work is a derivative work or a compilation incorporating previously published material, the year date of first publication of the derivative work or compilation is sufficient. Examples of derivative works are translations or dramatizations; an example of a compilation is an anthology. The year may be omitted when a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or useful articles; and 3. *The name of the owner of copyright in the work*, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. Example: (C in a circle symbol) 1999 Jane Doe The "C in a circle" notice is used only on "visually perceptible" copies. Certain kinds of works, for example, musical, dramatic, and literary works, may be fixed not in "copies" but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are "phonorecords" and not "copies", the "C in a circle" notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded. *The United States is a member of the Universal Copyright Convention (the UCC), which came into force on September 16, 1955. To guarantee protection for a copyrighted work in all UCC member countries, the notice must consist of the symbol (C in a circle symbol)(the word "Copyright" or the abbreviation are not acceptable), the year of first publication, and the name of the copyright proprietor. Example: (C in a circle symbol) 1999 John Doe. For information about international copyright relationships, request Circular 38a, "International Copyright Relations of the United States." PHONORECORDS OF SOUND RECORDINGS The copyright notice for phonorecords embodying a sound recording is different from that for other works. Sound recordings are defined as "works that result from the fixation of a series of musical, spoken or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work." Copyright in a sound recording protects the particular series of sounds fixed in the recording against unauthorized reproduction, revision, and distribution. This copyright is distinct from copyright of the musical, literary, or dramatic work that may be recorded on the phonorecord. Phonorecords may be records (such as LPs and 45s), audio tapes, cassettes, or disks. The notice should contain the following three elements appearing together on the phonorecord: 1. *The symbol* (the letter P in a circle); and 2. *The year of first publication* of the sound recording; and 3. *The name of the owner of copyright* in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord label or container and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice. Example: (P in a circle symbol) 1999 X.Y.Z. Records, Inc. ------------------------------------------------------------------------ CONTRIBUTIONS TO COLLECTIVE WORKS A "collective work" is one in which a number of contributions that are separate and independent works in themselves are assembled into a collective whole. Examples of collective works include periodicals (such as magazines and journals), encyclopedias, and anthologies. A single copyright notice applicable to the collective work as a whole serves to indicate protection for all the contributions in the collective work, except for advertisements, regardless of the ownership of copyright in the individual contributions and whether they have been published previously. However, a separate contribution to a collective work may bear its own notice of copyright, and in some cases, it may be advantageous to utilize the separate notice. As a practical matter, a separate notice will inform the public of the identity of the owner of the contribution. For works first published before March 1, 1989, there may be additional reasons to use a separate notice. If the owner of the collective work is not the same as the owner of an individual contribution that does not bear its own notice, the contribution is considered to bear an erroneous notice. (For the effects of a notice with the wrong name, see "Error in Name" on page 5 of this circular.) Additionally, if an individual author of contributions to a periodical wishes to make a single registration for a group of contributions published within a 12-month period, each contribution must carry its own notice. For information on this type of registration, request Form GR/CP and Information Package 104. A notice for the collective work will not serve as the notice for advertisements inserted on behalf of persons other than the copyright owner of the collective work. These advertisements should each bear a separate notice in the name of the copyright owner of the advertisement. ------------------------------------------------ PUBLICATIONS INCORPORATING U.S. GOVERNMENT WORKS Works by the U.S. Government are not eligible for copyright protection. For works published on and after March 1, 1989, the previous notice requirement for works consisting primarily of one or more U.S. Government works has been eliminated. However, use of a notice on such a work will defeat a claim of innocent infringement as previously described *provided* the notice also includes a statement that identifies either those portions of the work in which copyright is claimed or those portions that constitute U.S. Government material. An example is: "(C in a circle symbol) 1998 Ann Doe. Copyright claimed in Chapters 7-10, exclusive of U.S. Government maps." Copies of works published before March 1, 1989, that consist primarily of one or more works of the U.S. Government should have a notice and the identifying statement. ------------------------------------------------------------------------ POSITION OF NOTICE The copyright notice should be placed on copies or phonorecords in such a way that it gives reasonable notice of the claim of copyright. The notice should be permanently legible to an ordinary user of the work under normal conditions of use and should not be concealed from view upon reasonable examination. The Copyright Office has issued regulations, summarized below, concerning the position of the notice and methods of affixation (37 C.F.R., Part 201). To read the complete regulations, request Circular 96 Section 201.20, "Methods of Affixation and Positions of the Copyright Notice on Various Types of Works," or consult the Code of Federal Regulations in your local library. The following locations and methods of affixation are examples of appropriate position of notice. These examples are not exhaustive. Works Published in Book Form + Title page + Page immediately following the title page + Either side of the front or back cover + First or last page of the main body of the work *Single-leaf Works* + Front or back Works Published as Periodicals or Other Serials + Any location acceptable for books + As part of, or adjacent to, the masthead or on the page containing the masthead + Adjacent to a prominent heading, appearing at or near the front of the issue, containing the title of the periodical and any combination of the volume and issue number and date of the issue Works Published as Separate Contributions to Collective Works For a separate contribution reproduced on only one page: + Under the title or elsewhere on the same page For a separate contribution reproduced on more than one page: + Under a title appearing at or near the beginning of the contribution + On the first page of the main body of the contribution + Immediately following the end of the contribution + On any of the pages where the contribution appears if the contribution consists of no more than 20 pages, the notice is reproduced prominently, and the application of the notice to the particular contribution is clear Works Reproduced in Machine-Readable Copies + With or near the title or at the end of the work, on visually perceptible printouts + At the user's terminal at sign-on + On continuous display on the terminal l Reproduced durably on a gummed or other label securely affixed to the copies or to a container used as a permanent receptacle for the copies Motion Pictures and Other Audiovisual Works A notice embodied in the copies by a photomechanical or electronic process so that it ordinarily would appear whenever the work is performed in its entirety may be located: + With or near the title + With the cast, credits, and similar information + At or immediately following the beginning of the work + At or immediately preceding the end of the work The notice on works lasting 60 seconds or less, such as untitled motion pictures or other audiovisual works, may be located: + In all the locations specified above for longer motion pictures; and + If the notice is embodied electronically or photo-mechanically, on the leader of the film or tape immediately preceding the work. For audiovisual works or motion pictures distributed to the public for private use, the locations include the above, and in addition: + On the permanent housing or container Pictorial, Graphic, and Sculptural Works For works embodied in two-dimensional copies, a notice may be affixed directly, durably, and permanently to: + The front or back of the copies; + Any backing, mounting, framing, or other material to which the copies are durably attached, so as to withstand normal use. For works reproduced in three-dimensional copies, a notice may be affixed directly, durably, and permanently to: + Any visible portion of the work; + Any base, mounting, or framing or other material on which the copies are durably attached. For works on which it is impractical to affix a notice to the copies directly or by means of a durable label, a notice is acceptable if it appears on a tag or durable label attached to the copy so that it will remain with it as it passes through commerce. For works reproduced in copies consisting of sheet-like or strip material bearing multiple or continuous reproductions of the work, such as fabrics or wallpaper, the notice may be applied: + To the reproduction itself; + To the margin, selvage, or reverse side of the material at frequent and regular intervals; or + If the material contains neither a selvage nor reverse side, to tags or labels attached to the copies and to any spools, reels, or containers housing them in such a way that the notice is visible in commerce. ------------------------------------------------------------------------ OMISSION OF NOTICE AND ERRORS IN NOTICE --------------------------------------- The 1976 Copyright Act attempted to ameliorate the strict consequences of failure to include notice under prior law. It contained provisions that set out specific corrective steps to cure omissions or errors in notice. Under these provisions, an applicant had 5 years after publication to cure omission of notice or certain errors. Although these provisions are technically still in the law, their impact has been limited by the Berne amendment making notice optional for all works published on and after March 1, 1989. There may still be instances, such as the defense of innocent infringement, where the question of proper notice may be a factor in assessing damages in infringement actions. Omission Of Notice "Omission of notice" is publishing without a notice. In addition, some errors are considered the same as omission of notice. These are: + A notice that does not contain the (the letter C in a circle symbol), or the word "Copyright" or the abbreviation "Copr." or, if the work is a sound recording, the symbol P (the letter P in a circle); + A notice dated more than 1 year later than the date of first publication; + A notice without a name or date that could reasonably be considered part of the notice; + A notice that lacks the statement required for works consisting preponderantly of U.S. Government material; and + A notice located so that it does not give reasonable notice of the claim of copyright. The omission of notice does not affect the copyright protection, and no corrective steps are required if the work was published on or after March 1, 1989. For works published between January 1, 1978, but before March 1, 1989, no corrective steps are required if: 1. The notice is omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or 2. The omission violated an express written requirement that the published copies or phonorecords bear the prescribed notice. In all other cases of omission in works published before March 1, 1989, to preserve copyright: 1. The work must have been registered before it was published in any form or before the omission occurred, or it must have been registered within 5 years after the date of publication without notice; and 2. The copyright owner must have made a reasonable effort to add the notice to all copies or phonorecords that were distributed to the public in the United States after the omission was discovered. If these corrective steps were not taken, the work went into the public domain in the United States 5 years after publication. At that time all U.S. copyright protection was lost and cannot be restored. Error in Year If the copyright duration depends on the date of first publication and the year given in the notice is earlier than the actual publication date, protection may be shortened by beginning the term on the date in the notice. (For later date in the notice, see "Omission of Notice.") Example: A work made for hire is created in 1983 and is first published in 1988. However, the notice contains the earlier year of 1987. In this case, the term of copyright protection would be measured from the year in the notice, and the expiration date would be 2082, 95 years from 1987. Error in Name When the person named in the notice is not the owner of copyright, the error may be corrected by: 1. Registering the work in the name of the true owner; *or* 2. Recording a document in the Copyright Office executed by the person named in the notice that shows the correct ownership. Otherwise, anyone who innocently infringes the copyright and can prove that he or she was misled by the notice and obtained a transfer or license from the person named in the notice may have a complete defense against the infringement. ------------------------------------------------------------------------ MANDATORY DEPOSIT All works under copyright protection and published in the United States on or after March 1, 1989, are subject to mandatory deposit whether published with or without a notice. Works first published *before* March 1, 1989, are subject to mandatory deposit if they were published in the United States with notice of copyright. In general, within 3 months of publication in the United States, the owner of copyright or of the exclusive right of publication must deposit two copies (or, in the case of sound recordings, two phonorecords) of the work in the Copyright Office for the use or disposition of the Library of Congress. The Copyright Office has issued regulations exempting certain categories of works entirely from the mandatory de-posit requirements and reducing the obligation for other categories. If copyright registration is sought, the same deposit may be used for the mandatory deposit and for registration. For further information about mandatory deposit, request Circular 7d, "Mandatory Deposit of Copies or Phonorecords for the Library of Congress." ------------------------------------------------------------------------ FOR MORE INFORMATION Information via the Internet: Frequently requested circulars, announcements, regulations, other related materials, and all copyright application forms are available via the Internet. You may access these via the Copyright Office homepage at [http://www.loc.gov/copyright]. Information by Fax: Circulars and other information (but not application forms) are available from Fax-on-Demand at (202) 707-2600. Information by telephone: For information about copyright, call the Public Information Office at (202) 707-3000. The TTY number is (202) 707-6737. Information specialists are on duty in the Public Information Office from 8:30 a.m. to 5:00 p.m. eastern time, Monday through Friday, except federal holidays. Recorded information is available 24 hours a day. Or, if you know which application forms and circulars you want, request them from the Forms and Publications Hotline at (202) 707-9100 24 hours a day. Leave a recorded message. Information by regular mail: Write to: Library of Congress Copyright Office Public Information Office 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 -------------------------------------------------------------------------- REV: June 1999 Format Note: This electronic version has been altered slightly from the original printed text for presentation on the World Wide Web. For a copy of the original circular, consult the pdf version or write to Copyright Office, 101 Independence Avenue S.E., Washington, D.C. 20559-6000. -------------------------------------------------------------------------- 04/04/2000 ***** United States Copyright Office Circular 15 Renewal of Copyright ======================================================================== ------------------------------------------------------------------------- IMPORTANT: + Public Law 102-307, enacted on June 26, 1992, amended the copyright law to make renewal automatic and renewal registration optional for works originally copyrighted between January 1, 1964, and December 31, 1977. + While this amendment to the current law makes renewal registration optional for works copyrighted between January 1, 1964, and December 31, 1977, there are a number of incentives that encourage the filing of a renewal application, especially during the 28th year of the copyright term. + Public Law 105-298, enacted on October 27, 1998, amended the copyright law to add 20 years to the copyright term. ------------------------------------------------------------------------- ------------------ THE RENEWAL SYSTEM ------------------ Under the 1909 copyright law, works copyrighted in the United States before January 1, 1978, were subject to a renewal system in which the term of copyright was divided into two consecutive terms. Renewal registration, within strict time limits, was required as a condition of securing the second term and extending the copyright to its maximum length. On January 1, 1978, the current copyright law (title 17 of the United States Code) came into effect in the United States. This law retained the renewal system for works that were copyrighted before 1978 and were still in their first terms on January 1, 1978. For these works the statute provides for a first term of copyright protection lasting for 28 years, with the possibility for a second term of 47 years. The 1992 amending legislation automatically secures this second term for works copyrighted between January 1, 1964, and December 31, 1977. + If a copyright originally secured before January 1, 1964, was not renewed at the proper time, copyright protection expired at the end of the 28th calendar year of the copyright and could not be restored. ---------------------------------------------------------------------- THE EFFECT OF THE 1992 AND THE 1998 AMENDMENTS ON RENEWAL OF COPYRIGHT ---------------------------------------------------------------------- + WORKS COPYRIGHTED BETWEEN JANUARY 1, 1964, AND DECEMBER 31, 1977, are affected by P.L. 102-307, which automatically secured the second term and made renewal registration optional, and by Public Law 105-298, which added an additional 20 years to the second term of copyright for these works. The term of copyright in works copyrighted between January 1, 1964, and December 31, 1977, is now 95 years. There is no requirement to register a renewal in order to extend the original 28- year copyright term to the full term of 95 years. Although the renewal term is secured automatically, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office. The benefits to making a renewal registration during the 28th year of the original term of copyright are: 1. The renewal copyright vests in the name of the renewal claimant on the effective date of the renewal registration. For example, if a renewal registration is made in the 28th year and the renewal claimant dies following the renewal registration but before the end of the year, the renewal copyright is secured on behalf of that renewal claimant and the 67 years of renewal copyright become a part of that individual's estate. NOTE: If the renewal registration is not made in the 28th year, the renewal copyright will vest on the first day of the renewal term in the party entitled to claim renewal as of December 31 of the 28th year. 2. The Copyright Office issues a renewal certificate, which constitutes prima facie evidence as to the validity of the copyright during the renewed and extended term and of the facts stated in the certificate. 3. The right to use the derivative work in the extended term may be affected. For example, if an author dies before the 28th year of the original term and a statutory renewal claimant registers a renewal within the 28th year, that claimant can terminate an assignment made by the deceased author authorizing the exploitation of a derivative work. If a renewal is not made during the 28th year, a derivative work created during the first term of copyright under a prior grant can continue to be used according to the terms of the grant. Thus, an author or other renewal claimant loses the right to object to the continued use of the derivative work during the second term by failing to make a timely renewal, but any terms in the prior grant concerning payment or use, e.g., a royalty, must continue to be honored. This exception does not apply to a new derivative work, which can only be prepared with the consent of the author or other renewal claimant. A renewal registration made after the 28th year will not confer the benefits mentioned above but will confer other benefits denied to unregistered works. For example, renewal registration establishes a public record of copyright ownership in a work at the time that the renewal was registered. The courts have discretion to determine the evidentiary weight accorded a certificate of renewal registration when registration is made after the 28th year of the copyright term. Renewal registration is a prerequisite to statutory damages and attorney's fees for published works not registered for the original term. In cases where no original registration or renewal registration is made before the expiration of the 28th year, important benefits can still be secured by filing a renewal registration at any time during the renewal term. These benefits would include, for example, statutory damages and attorney's fees in any infringement suit for infringements occurring after the renewal registration is made. Also, it is a requirement to get into court in certain circumstances under section 411 (a), and it creates a public record both to defend against innocent infringers and to facilitate easier licensing of the work. --------------------- RENEWAL FILING PERIOD --------------------- For works copyrighted between January 1, 1964, and December 31,1977, an application for renewal of copyright can be made: + within the last (28th) calendar year of the original term of copyright or + at any time during the renewed and extended term of 67 years. To determine the filing period for renewal during the original term: 1. First, determine the date of original copyright for the work. (In the case of works originally registered in unpublished form, copyright began on the date of registration; for published works, copyright began on the date of first publication with copyright notice.) 2. Then add 28 years to the year the work was originally copyrighted. This will determine the calendar year during which the copyright becomes eligible for renewal with a renewal filing during the original term due by December 31 of that year. An exception to this rule exists when the copyright notice in the work contains a year date earlier than the year date of first publication. In this case, the renewal filing period is computed from the year date in the copyright notice. For example, a work published January 20, 1975, contains a copyright notice reading "Copyright 1974 by Anderson Homes." Compute the 28-year original term from the year 1974. To renew a copyright during the original copyright term, the renewal application and fee must be received in the Copyright Office during the 28th year of the original term of copyright. All terms of original copyright run through the end of the 28th calendar year making the period for renewal registration in the original term from December 31 of the 27th year of the copyright through December 31 of the following year. Note: The Copyright Office does not notify authors or claimants when the copyrights in their works become eligible for renewal. ===================== WHO MAY CLAIM RENEWAL ===================== Renewal copyright may be claimed only by those persons specified in the law. A. The following persons may claim renewal in all types of works except those enumerated in Paragraph B below: 1. The author, if living, may claim as the author. 2. If the author is dead, the widow or widower of the author, or the child or children of the author, or both, may claim as the widow of the author or the widower of the author and/or the child of the deceased author or the children of the deceased author. 3. If there is no surviving widow, widower, or child, and the author left a will, the author's executors may claim as the executors of the author. 4. If there is no surviving widow, widower, or child, and the author left no will or the will has been discharged, the next of kin may claim as the next of kin of the deceased author, there being no will. B. Only in the case of the following four types of works may the copyright proprietor (owner) claim renewal: 1. Posthumous work (a work published after the author's death as to which no copyright assignment or other contract for exploitation has occurred during the deceased author's lifetime). Renewal may be claimed as proprietor of copyright in a posthumous work. 2. Periodical, cyclopedic, or other composite work. Renewal may be claimed as proprietor of copyright in a composite work. 3. Work copyrighted by a corporate body otherwise than as assignee or licensee of the individual author. Renewal may be claimed as proprietor of copyright in a work copyrighted by a corporate body otherwise than as assignee or licensee of the individual author. (This type of claim is considered appropriate in relatively few cases.) 4. Work copyrighted by an employer for whom such work was made for hire. Renewal may be claimed as proprietor of copyright in a work made for hire. For registration in the 28th year of the original copyright term, the renewal claimant is the individual(s) or entity who is entitled to claim renewal copyright on the date the application is filed. For registration after the 28th year of the original copyright term, the renewal claimant is the individual(s) or entity who is entitled to claim renewal copyright on December 31 of the 28th year. =============================== HOW TO REGISTER A RENEWAL CLAIM =============================== APPLICATION FORM Application for renewal registration must be filed on Form RE, which is supplied by the Copyright Office on request. It is also available from the Copyright Office Website at http://www.loc.gov/copyright. RENEWAL FEE The filing fee for a renewal application is $45*. If several applications are submitted at the same time, a remittance for the total amount should accompany them. ------------------------------------------------------------------------- *NOTE: Fees are effective through June 30, 2002. After that date, check the Copyright Office Website at http://www.loc.gov/copyright or call (202) 707-3000 for current fee information. ------------------------------------------------------------------------- All remittances should be in the form of drafts (that is, checks, money orders, or bank drafts) payable to: Register of Copyrights. Do not send cash. The Copyright Office cannot assume any responsibility for the loss of currency sent in payment of copyright fees. Drafts must be redeemable without service or exchange fee through a U.S. institution, must be payable in U.S. dollars, and must be imprinted with American Banking Association routing numbers. If a check received in payment of the filing fee is returned to the Copyright Office as uncollectible, the Copyright Office will cancel the registration and will notify the applicant. The fee for processing a renewal claim is nonrefundable, whether or not renewal registration is ultimately made. ORIGINAL AND RENEWAL REGISTRATION DURING THE 28TH YEAR An original registration can be made only during the first 28-year term of copyright protection. However, it is possible to make both an original registration and a renewal registration during the 28th year of the copyright term. This requires filing the appropriate basic application form, accompanied by deposit copies and a $30* filing fee, and a Form RE and a $45* filing fee. RENEWAL REGISTRATION WITHOUT ORIGINAL REGISTRATION A renewal registration may be made without making an original registration during the 28th year of the original term. A renewal application Form RE must be filed, accompanied by the Form RE Addendum, a copy of the work as first published or appropriate identifying material in accordance with the requirements of 37 CFR 202.20 and 202.21, and the filing fee. (Request Circular 96 202.17 for further information.) The information in the Form RE Addendum is necessary to establish that copyright subsists in the original term which is capable of renewal. The deposit copy facilitates the examination of the claim to copyright which is submitted for renewal, and it is available for accession by the Library of Congress to its collections for the benefit of the nation. A single $60* fee will be required for a renewal registration using Form RE and Form RE Addendum. Please contact the Renewals Section in the Copyright Office for more information. Phone the Renewals Section at (202) 707-8180 or fax at (202) 707-3849 or write to the Copyright Office at: Library of Congress Copyright Office Renewals Section, LM-449 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 ============ NEW VERSIONS ============ Copyright in a new version of a previously copyrighted work (such as an arrangement, translation, dramatization, compilation, or work republished with new matter) covers only the additions, changes, or other new material appearing for the first time in that version. The copyright secured in a new version is independent of any copyright protection in material published or copyrighted earlier, and the only "authors" of a new version are those who contributed copyrightable matter to it. Thus, for renewal purposes, the person who wrote the original version upon which the new work is based cannot be regarded as an "author" of the new version, unless that person also contributed to the new matter. ===================================================== CONTRIBUTIONS TO PERIODICALS OR OTHER COMPOSITE WORKS ===================================================== SEPARATE RENEWAL FOR A SINGLE CONTRIBUTION Separate renewal registration is possible for a work published as a contribution to a periodical, serial, or other composite work whether or not the contribution was copyrighted independently or as part of the larger work in which it appeared. Except in the cases described in the next paragraph, each contribution published in a separate issue requires a separate renewal registration. RENEWAL FOR A GROUP OF CONTRIBUTIONS + Requirements for Group Renewal: A renewal registration using a single application and $45*, plus $15* for each addendum, (if required) fee can be made for a group of periodical contributions if all the following five statutory conditions are met: 1. All the works were written by the same author, who is or was an individual (not an employee for hire); 2. All of the works were first published as contributions to periodicals (including newspapers) and were copyrighted on their first publication; 3. The renewal claimant or claimants and the basis of the claim or claims are the same for all the works; 4. The renewal application and fee are received not less than 27 years after the 31st day of December of the calendar year in which all the works were first published; and 5. The renewal application identifies each work separately, including the periodical containing it and the date of first publication. + TIME LIMITS FOR GROUP RENEWALS: To be renewed as a group, all the contributions must have been first published during the same calendar year. For example, suppose six contributions by the same author were published on April 1, 1971; July 1, 1971; November 1, 1971; February 1, 1972; July 1, 1972; and March 1, 1973. The three 1971 copyrights can be combined and renewed on the same Form RE at any time during 1999; the two 1972 copyrights can be renewed as a group during 2000; but the 1973 copyright must be renewed by itself in 2001. ============================== NOTICE OF RENEWAL OF COPYRIGHT ============================== The Copyright Office is frequently asked whether the notice of copyright should be changed on copies of a work issued during the renewal term. The copyright law is silent on this point, and the continued use of the original form of notice may therefore be considered appropriate. However, a notice that also refers to the fact of renewal might be regarded as more informative and, hence, preferable; for example: Copyright 1972 Bobby Eroica Dupea Copyright Renewed 1999 by Rayette Depesto ============================== EFFECTIVE DATE OF REGISTRATION ============================== A renewal registration is effective on the date the Copyright Office receives all the required renewal elements in acceptable form, regardless of how long it then takes to process the application and mail the certificate of registration. The time the Copyright Office requires to process an application varies, depending on the amount of material the Office is receiving. Please keep in mind that it may take a number of days for mailed material to reach the Copyright Office and for the certificate of registration to reach the recipient after being mailed by the Copyright Office. If you file an application for renewal registration in the Copyright Office, you will not receive an acknowledgment that your application has been received, but you can expect: + A letter or telephone call from a copyright examiner or other staff member if further information is needed; + A certificate of registration to indicate the renewal has been registered; + If renewal registration cannot be made, a letter explaining why it has been refused. If you want to know when the Copyright Office receives your material, send it by registered or certified mail and request a return receipt from the U.S. Postal Service. Allow at least 4-6 weeks for the return of your receipt. If you need additional application forms for renewal registration, call (202) 707-9100 anytime, day or night, to record your request on the Copyright Office Forms and Publications Hotline. Please specify the number of forms you need. You may photocopy blank application forms; however, photocopied forms submitted to the Copyright Office must be clear and legible on a good grade of 8-1/2 inch by 11 inch white paper suitable for automatic feeding through a photocopier. The forms should be printed, preferably in black ink, head-to-head (so that when you turn the sheet over, the top of page 2 is directly behind the top of page 1). FORMS NOT MEETING THESE REQUIREMENTS WILL BE RETURNED TO THE ORIGINATOR. If, after reading this circular, you have additional questions about renewal of copyright, you may call the Renewals Section of the Examining Division at (202) 707-8180 or fax at (202) 707-3849 or write to the Copyright Office at this address: Library of Congress Copyright Office Renewals Section, LM-449 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 ======================= FOR FURTHER INFORMATION ======================= INFORMATION VIA THE INTERNET: Frequently requested circulars, announcements, regulations, other related materials, and all copyright application forms are available via the Internet. You may access these via the Copyright Office homepage at http://www.loc.gov/copyright. INFORMATION BY FAX: Circulars and other information (but not application forms) are available by Fax-on-Demand at (202)707-2600. INFORMATION BY TELEPHONE: For general information about copyright, call the Copyright Public Information Office at (202)707-3000. The TTY number is (202)707-6737. Information specialists are on duty from 8:30 a.m. to 5:00 p.m., eastern time, Monday through Friday, except federal holidays. Recorded information is available 24 hours a day. Or, if you know which application forms and circulars you want, request them from the Forms and Publications Hotline at (202)707-9100 24 hours a day. Leave a recorded message. Information by regular mail: Write to: Library of Congress Copyright Office Publications Section, LM-455 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 ---------------------------------------------- Library of Congress Copyright Office 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 http://www.loc.gov/copyright REV: June 1999 -- 15,000 WEB REV: June 1999 U.S. GOVERNMENT PRINTING OFFICE: 1999-454-879/4 ***** United States Copyright Office Circular 15t Extension of Copyright Terms ======================================================================== ======================== PURPOSE OF THIS CIRCULAR ======================== This circular will inform you of the provisions in the copyright statute affecting the duration of subsisting copyrights and give you some information with examples illustrating what these provisions mean. For works copyrighted for the first time on or after January 1, 1978, the statutory provisions governing the duration of protection are quite different and are not included in this circular. For general information about duration of copyright under the current law, request Circular 15a, "Duration of Copyright." ============================================================= EFFECT OF 1976 COPYRIGHT LAW WITH AMENDMENTS OF 1992 AND 1998 ============================================================= The Copyright Act of October 1976 (Public Law 94-553, 90 Stat. 2541, amending title 17 of the United States Code), effective January 1, 1978, has been amended to extend the term of copyright on two subsequent occasions with the passage of the Copyright Amendments Act of 1992 (Public Law 102-307, 10 6 Stat. 266, amending section 304 of title 17 of the United States Code), and the Sonny Bono Copyright Term Extension Act of 1998 (Public Law 105-298, 112 Stat. 2827, amending chapter 3 of title 17 of the United States Code). Public Law 102-307, enacted on June 26, 1992, amended the copyright law to make renewal automatic and renewal registration optional for works originally copyrighted between January 1, 1964, and December 31, 1977. Public Law 105-298, enacted on October 27, 1998, added an additional 20 years to the overall term of copyright protection. --2-- + COPYRIGHTS ALREADY IN THEIR SECOND TERM ON JANYARY 1, 1978: The duration of the copyright term has automatically been prolonged to last for a total of 95 years. No further renewal registration is necessary. + COPYRIGHTS IN THEIR FIRST TERM ON JANUARY 1, 1978: Renewal registration was still necessary to obtain the second term for works copyrighted between January 1, 1950, and December 31, 1963. Renewal registration is optional for works copyrighted between January 1, 1964, and December 31, 1977. In both cases, the renewal copyright is longer than the term in effect before 1978. The renewal term extends the copyright for a full term of 95 years. ================================================================ COPYRIGHTS IN THEIR SECOND TERM: AUTOMATIC EXTENSION OF DURATION ================================================================ RENEWED COPYRIGHTS AUTOMATICALLY EXTENDED TO MAXIMUM OF 95 YEARS Under the statute, copyrights that had already been renewed and were in their second term at any time between December 31, 1976, and December 31, 1977, inclusive, were automatically extended in duration. The total length of these copyrights is now 95 years from the end of the year in which they were originally secured. EXAMPLE: A work that was first copyrighted on April 10, 1923, and renewed between April 10, 1950, and April 10, 1951, would formerly have fallen into the public domain after April 10, 1979. The current law extends this copyright through the end of 2018. These second-term copyrights cannot be renewed again. Under the law, their extension to the maximum 95-year term is automatic and requires no action in the Copyright Office. A SPECIAL SITUATION: COPYRIGHTS REGISTERED FOR RENEWAL BETWEEN DECEMBER 31, 1976, AND DECEMBER 31, 1977 The automatic extension also applied to copyrights that were the subject of a renewal registration between December 31, 1976, and December 31, 1977, even though their second term was not scheduled to commence until sometime in 1978. EXAMPLE: A work was first copyrighted on July 29, 1950, and a renewal registration was made on September 1, 1977. The second term of copyright was automatically extended through the end of 2045 without the need of any further renewal. ANOTHER SPECIAL SITUATION: COPYRIGHTS MORE THAN 56 YEARS OLD The automatic extension applies not only to copyrights less than 56 years old but also to older copyrights that have previously been extended in duration under a series of Congressional enactments beginning in 1962. [1] As in the case of all other copyrights subsisting in their second term between December 31, 1976, and December 31, 1977, inclusive, these copyrights will expire at the end of the calendar year in which the 95th anniversary of the original date of copyright occurs, so long as the copyright was still in its renewal phase at the time Public Law 105-298 became effective. [2] EXAMPLE: A work that was first entered for copyright on October 5, 1907, and renewed in 1935, would formerly have fallen into the public domain after October 5, 1963. The first Act extended the copyright to December 31, 1965; the second Act extended it to December 31, 1967; the third Act extended it to December 31, 1968; the fourth Act extended it to December 31, 1969; the fifth Act extended it to December 31, 1970; the sixth Act extended it to December 31, 1971; the seventh Act extended it to December 31, 1972; the eighth Act extended it to December 31, 1974; the ninth Act extended it to December 31, 1976, and the Copyright Act of 1976 finally extended the copyright through the end of 1982 (75 years from the end of the year in which the copyright was originally secured). ================================================================== COPYRIGHTS SECURED BETWEEN JANUARY 1, 1950, AND DECEMBER 31, 1963: RENEWAL WAS NECESSARY ================================================================== Copyrights whose first 28-year term of copyright was secured between January 1, 1950, and December 31, 1963, including works protected in their first term under the Universal Copyright Convention, still had to be renewed within strict time limits in order to receive the maximum statutory duration. U.S. adherence to the Berne Convention did not alter this requirement. Renewal registration had to be made within a year period beginning on December 31 of the --3-- 27th year of the copyright and running through December 31 of the following year. If a valid renewal registration was made at the proper time, the second term lasts for 67 years. This is 39 years longer than the 28-year renewal term provided under the 1909 law and makes the two terms of protection for the renewed copyright last for a total of 95 years. However, if renewal registration was not made within the statutory time limits, these copyrights expired at the end of their first terms and protection was lost permanently. ================================================================= COPYRIGHTS SECURED BETWEEN JANUARY 1, 1964, AND DECEMBER 31, 1977 ================================================================= The amendment to the copyright law enacted June 26, 1992, makes renewal registration optional, and the amendment enacted October 27, 1998, further extends the renewal term to 67 years. The copyright is still divided between a 28-year original term and a 67-year renewal term, but the renewal term automatically vests on December 31st of the 28th year. A renewal registration is not required to secure the renewal copyright. Certain benefits accrue to making renewal registrations, and the Copyright Office continues to accept renewal applications. See Circular 15, "Renewal of Copyright," for a discussion of the benefits of making renewal registration. ========================================================== OTHER STATUTORY PROVISIONS AFFECTING SUBSISTING COPYRIGHTS ========================================================== YEAR-END EXPIRATION OF COPYRIGHTTERMS The law provides that all terms of copyright will run through the end of the calendar year in which they would otherwise expire. This affects the duration of all copyrights, including those subsisting in either their first or second term in January 1, 1978. For works eligible for renewal registration, the renewal filing period begins on December 31st of the 27th year of the copyright term and ends on December 31st of the 28th year of the copyright term. TERMINATION OF GRANTS For works already under statutory copyright on January 1, 1978, the law also contains special provisions allowing the termination of any grant of rights made by an author and covering any part of the period (usually 39 years) that has now been added to the end of the renewal copyright. This right to reclaim ownership of all or any part of the extended term is optional. It can be exercised only by certain persons (the author, or specified heirs of the author), and it must be exercised in accordance with prescribed conditions and within strict time limits. ================================= A CHECKLIST OF POINTS TO REMEMBER ================================= + Copyrights already in their second term on January 1, 1978, have been automatically extended up to a maximum of 95 years without the need for further renewal. + Copyrights secured between January 1, 1950, and December 31, 1963, had to be renewed within a strict 1-year time limit; if not renewed they expired at the end of their 28th calendar year. + Copyrights secured between January 1, 1964, and December 31, 1977, are renewed automatically even if renewal registration is not made; renewal registration is optional and if timely made, entitles the claimant to a presumption of validity and other advantages. + Works in the public domain cannot be protected by copyright. The 1976 Act, the 1992 amendment, and the 1998 amendment do not provide a procedure for restoring protection for works in which copyright has been lost for any reason. + Exception: Under the provisions of the Uruguay Round Agreements Act (URAA), certain foreign works whose U.S. copyright protection had been lost because of non-compliance with formalities of U.S. law were restored as of January 1, 1996. Such works may be registered using Form GATT. For more information, request Circular 38b, "Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA-GATT)." + A work published before January 1, 1964, and originally copyrighted within the past 75 years may still be protected by copyright if a valid renewal registration was made during the 28th year of the first term of the copyright. If renewed and if still valid under the other provisions of the law, the copyright will now expire 95 years from the end of the year in which it was first secured. Works published before January 1, 1923, have fallen into the public domain, but works published after that date could still be protected by copyright if the copyright was renewed by registration or automatically by law under Public Law 102-307. ======================= FOR FURTHER INFORMATION ======================= INFORMATION VIA THE INTERNET: Frequently requested circulars, announcements, regulations, other related materials, and all copyright application forms are available via the Internet. You may access these via the Copyright Office homepage at http://www.loc.gov/copyright. INFORMATION BY FAX: Circulars and other information (but not application forms) are available by Fax-on-Demand at (202)707-2600. INFORMATION BY TELEPHONE: For general information about copyright, call the Copyright Public Information Office at (202)707-3000. The TTY number is (202)707-6737. Information specialists are on duty from 8:30 a.m. to 5:00 p.m., eastern time, Monday through Friday, except federal holidays. Recorded information is available 24 hours a day. Or, if you know which application forms and circulars you want, request them from the Forms and Publications Hotline at (202)707-9100 24 hours a day. Leave a recorded message. Information by regular mail: Write to: Library of Congress Copyright Office Publications Section, LM-455 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 -------- ENDNOTES 1 The enactments were Public Laws 87-668, 89-142, 90-141, 90-416, 91-147, 91-555, 92-170, 92-566, and 93-573. Their effect was to extend the second term of all renewed copyrights scheduled to expire between September 19, 1962, and December 3, 1976, through the end of 1976. 2 Works published before January 1, 1923, would have fallen into the public domain at the end of calendar year 1997. Consequently, these works do not receive the additional 20 years of copyright protection created by Public Law 105-298. ---------------------------------------------- U.S. GOVERNMENT PRINTING OFFICE: 1999-454-879/5 Library of Congress Copyright Office 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 www.loc.gov/copyright June 1999 -- 15,000 WEB REV: June 1999 ***** United States Copyright Office Circular 22 How to Investigate the Copyright Status of a Work ======================================================================== IN GENERAL Methods of Approaching & Copyright Investigation There are several ways to investigate whether a work is under copyright protection and, if so, the facts of the copyright. These are the main ones: 1. Examine a copy of the work for such elements as a copyright notice, place and date of publication, author and publisher. If the work is a sound recording, examine the disk, tape cartridge, or cassette in which the recorded sound is fixed, or the album cover, sleeve, or container in which the recording is sold. 2. Make a search of the Copyright Office catalogs and other records; or 3. Have the Copyright Office make a search for you. A Few Words of Caution About Copyright Investigations Copyright investigations often involve more than one of these methods. Even if you follow all three approaches, the results may not be conclusive. Moreover, as explained in this circular, the changes brought about under the Copyright Act of 1976, the Berne Convention Implementation Act of 1988, the Copyright Renewal Act of 1992, and the Sonny Bono Copyright Term Extension Act of 1998 must be considered when investigating the copyright status of a work. This circular offers some practical guidance on what to look for if you are making a copyright investigation. It is important to realize, however, that this circular contains only general information and that there are a number of exceptions to the principles outlined here. In many cases it is important to consult with a copyright attorney before reaching any conclusions regarding the copyright status of a work. --------------------------------------------------- HOW TO SEARCH COPYRIGHT OFFICE CATALOGS AND RECORDS --------------------------------------------------- Catalog of Copyright Entries The Copyright Office published the Catalog of Copyright Entries (CCE) in printed format from 1891 through 1978. From 1979 through 1982 the CCE was issued in microfiche format. The catalog was divided into parts according to the classes of works registered. Each CCE segment covered all registrations made during a particular period of time. Renewal registrations made from 1979 through 1982 are found in Section 8 of the catalog. Renewals prior to that time were generally listed at the end of the volume containing the class of work to which they pertained. A number of libraries throughout the United States maintain copies of the Catalog, and this may provide a good starting point if you wish to make a search yourself. There are some cases, however, in which a search of the Catalog alone will not be sufficient to provide the needed information. For example: + Because the Catalog does not include entries for assignments or other recorded documents, it cannot be used for searches involving the ownership of rights. + The Catalog entry contains the essential facts concerning a registration, but it is not a verbatim transcript of the registration record. It does not contain the address of the copyright claimant. Effective with registrations made since 1982 when the CCE was discontinued, the only method of searching outside the Library of Congress is by using the Internet to access the automated catalog. The automated catalog contains entries from 1978 to the present. Information for accessing the catalog via the Internet is provided below. Individual Searches of Copyright Records The Copyright Office is located in the Library of Congress James Madison Memorial Building, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000. Most Copyright Office records are open to public inspection and searching from 8:30 a.m. to 5 p.m., eastern time, Monday through Friday, except federal holidays. The various records freely available to the public include an extensive card catalog, an automated catalog containing records from 1978 forward, record books, and microfilm records of assignments and related documents. Other records, including correspondence files and deposit copies, are not open to the public for searching. However, they may be inspected upon request and payment of a $65 per hour search fee. [1] If you wish to do your own searching in the Copyright Office files open to the public, you will be given assistance in locating the records you need and in learning procedures for searching. If the Copyright Office staff actually makes the search for you, a search fee must be charged. The search will not be done while you wait. In addition, the following files dating from 1978 forward are now available over the Internet: COHM, which includes all material except serials and documents; COHD, which includes documents; and COHS, which includes serials. The Internet site addresses for the Copyright Office files are: World Wide Web: www.loc.gov/copyright Telnet: locis.loc.gov Access to LOCIS requires Telnet support. If your online service provider supports Telnet, you can connect to LOCIS through the World Wide Web or directly by using Telnet. The Copyright Office does not offer search assistance to users on the Internet. --------------------------------- SEARCHING BY THE COPYRIGHT OFFICE --------------------------------- In General Upon request, the Copyright Office staff will search its records at the statutory rate of $65 [1] for each hour or fraction of an hour consumed. Based on the information you furnish, we will provide an estimate of the total search fee. If you decide to have the Office staff conduct the search, you should send the estimated amount with your request. The Office will then proceed with the search and send you a typewritten report or, if you prefer, an oral report by telephone. If you request an oral report, please provide a telephone number where you can be reached from 8:30 a.m. to 5 p.m., eastern time. Search reports can be certified on request for an extra fee of $65 per hour. [1] Certified searches are most frequently requested to meet the evidentiary requirements of litigation. Your request and any other correspondence should be addressed to : Library of Congress Copyright Office Reference and Bibliography Section, LM-451 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 Tel: (202) 707-6850 Fax: (202) 252-3485 TTY:(202) 707-6737 What the Fee Does Not Cover The search fee does not include the cost of additional certificates, photocopies of deposits, or copies of other Office records. For information concerning these services, request Circular 6, "Obtaining Access to and Copies of Copyright Office Records and Deposits." Information Needed The more detailed information you can furnish with your request, the less expensive the search will be. Please provide as much of the following information as possible: + The title of the work, with any possible variants + The names of the authors, including possible pseudonyms + The name of the probable copyright owner, which may be the publisher or producer + The approximate year when the work was published or registered + The type of work involved (book, play, musical composition, sound recording, photograph, etc.) + For a work originally published as a part of a periodical or collection, the title of that publication and any other information, such as the volume or issue number, to help identify it + The registration number or any other copyright data Motion pictures are often based on other works such as books or serialized contributions to periodicals or other composite works. *If you desire a search for an underlying work or for music from a motion picture, you must specifically request such a search. You must also identify the underlying works and music and furnish the specific titles, authors, and approximate dates of these works.* Searches Involving Assignments and Other Documents Affecting Copyright Ownership For the standard hourly search fee, the Copyright Office staff will search its indexes covering the records of assignments and other recorded documents concerning ownership of copyrights. The reports of searches in these cases will state the facts shown in the Office's indexes of the recorded documents but will offer no interpretation of the content of the documents or their legal effect. ----------------------- LIMITATIONS ON SEARCHES ----------------------- In determining whether or not to have a search made, you should keep the following points in mind: NO SPECIAL LISTS. The Copyright Office does not maintain any listings of works by subject or any lists of works that are in the public domain. CONTRIBUTIONS NOT LISTED SEPARATELY IN COPYRIGHT OFFICE RECORDS. Individual works such as stories, poems, articles, or musical compositions that were published as contributions to a copyrighted periodical or collection are usually not listed separately by title in our records. NO COMPARISONS. The Copyright Office does not search or compare copies of works to determine questions of possible infringement or to determine how much two or more versions of a work have in common. TITLES AND NAMES NOT COPYRIGHTABLE. Copyright does not protect names and titles, and our records list many different works identified by the same or similar titles. Some brand names, trade names, slogans, and phrases may be entitled to protection under the general rules of law relating to unfair competition. They may also be entitled to registration under the provisions of the trademark laws. Questions about the trademark laws should be addressed to the Commissioner of Patents and Trademarks, Washington, D.C. 20231. Possible protection of names and titles under common law principles of unfair competition is a question of state law. NO LEGAL ADVICE. The Copyright Office cannot express any opinion as to the legal significance or effect of the facts included in a search report. SOME WORDS OF CAUTION Searches Not Always Conclusive Searches of the Copyright Office catalogs and records are useful in helping to determine the copyright status of a work, but they cannot be regarded as conclusive in all cases. The complete absence of any information about a work in the Office records does not mean that the work is unprotected. The following are examples of cases in which information about a particular work may be incomplete or lacking entirely in the Copyright Office: + Before 1978, unpublished works were entitled to protection under common law without the need of registration. + Works published with notice prior to 1978 may be registered at any time within the first 28-year term. + Works copyrighted between January 1, 1964, and December 31, 1977, are affected by the Copyright Renewal Act of 1992, which automatically extends the copyright term and makes renewal registrations optional. + For works under copyright protection on or after January 1, 1978, registration may be made at any time during the term of protection. Although registration is not required as a condition of copyright protection, there are certain definite advantages to registration. For further information, request Circular 1, "Copyright Basics." + Since searches are ordinarily limited to registrations that have already been cataloged, a search report may not cover recent registrations for which catalog records are not yet available. + The information in the search request may not have been complete or specific enough to identify the work. + The work may have been registered under a different title or as part of a larger work. Protection in Foreign Countries Even if you conclude that a work is in the public domain in the United States, this does not necessarily mean that you are free to use it in other countries. Every nation has its own laws governing the length and scope of copyright protection, and these are applicable to uses of the work within that nation's borders. Thus, the expiration or loss of copyright protection in the United States may still leave the work fully protected against unauthorized use in other countries. OTHER CIRCULARS For further information, request Circular 6, "Obtaining Access to and Copies of Copyright Office Records and Deposits"; Circular 15, "Renewal of Copyright"; Circular 15a, "Duration of Copyright"; and Circular 15t, "Extension of Copyright Terms," from: Library of Congress Copyright Office Publications Section, LM-455 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 You may call the Forms and Publications Hotline (202) 707-9100 at any time, day or night, to leave a recorded request for forms or circulars. Requests are filled and mailed promptly. --------------------------------------------------- IMPACT OF COPYRIGHT ACT ON COPYRIGHT INVESTIGATIONS --------------------------------------------------- On October 19, 1976, the President signed into law a complete revision of the copyright law of the United States (title 17 of the United States Code). Most provisions of this statute came into force on January 1, 1978, superseding the copyright act of 1909. These provisions made significant changes in the copyright law. Further important changes resulted from the Berne Convention Implementation Act of 1988, which took effect March 1, 1989; the Copyright Renewal Act of 1992 (P.L. 102-307) enacted June 26, 1992, which amended the renewal provisions of the copyright law; and the Sonny Bono Copyright Term Extension Act of 1998 (P.L. 105-298) enacted October 27, 1998, which extended the term of copyrights for an additional 20 years. If you need more information about the provisions of either the 1909 or the 1976 law, write or call the Copyright Office. For information about the Berne Convention Implementation Act, request Circular 93, "Highlights of U.S. Adherence to the Berne Convention." For information about renewals, request Circular 15, "Renewal of Copyright." For information about the Sonny Bono Copyright Term Extension Act, request SL-15, "New Terms for Copyright Protection." Copies of the law are now $14.00 each. Request "Copyright Law, Circular 92," (stock number is changed to 030-002-00195-1) from: Superintendent of Documents P.O. Box 371954 Pittsburgh, PA 15250-7954 Tel: (202) 512-1800 Fax: (202) 512-2250 For copyright investigations, the following points about the impact of the Copyright Act of 1976, the Berne Convention Implementation Act of 1988, and the Copyright Renewal Act of 1992 should be considered: A Changed System of Copyright Formalities Some of the most sweeping changes under the 1976 Copyright Act involve copyright formalities, that is, the procedural requirements for securing and maintaining full copyright protection. The old system of formalities involved copyright notice, deposit and registration, recordation of transfers and licenses of copyright ownership, and United States manufacture, among other things. In general, while retaining formalities, the 1976 law reduced the chances of mistakes, softened the consequences of errors and omissions, and allowed for the correction of errors. The Berne Convention Implementation Act of 1988 reduced formalities, most notably making the addition of the previously mandatory copyright notice optional. It should be noted that the amended notice requirements are not retroactive. The Copyright Renewal Act of 1992, enacted June 26, 1992, automatically extends the term of copyrights secured between January 1, 1964, and December 31, 1977, making renewal registration optional. Consult Circular 15, "Renewal of Copyright," for details. For additional information, you may contact the Renewals Section. Tel: (202) 707-8180 Fax: (202) 707-3849 Automatic Copyright Under the present copyright law, copyright exists in original works of authorship created and fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly, or indirectly with the aid of a machine or device. In other words, copyright is an incident of creative authorship not dependent on statutory formalities. Thus, registration with the Copyright Office generally is not required, but there are certain advantages that arise from a timely registration. For further information on the advantages of registration, write or call the Copyright Office and request Circular 1, "Copyright Basics." Copyright Notice The 1909 Copyright Act and the 1976 Copyright Act as originally enacted required a notice of copyright on published works. For most works, a copyright notice consisted of the symbol (C in a circle), the word "Copyright," or the abbreviation "Copr.," together with the name of the owner of copyright and the year of first publication. For example: "(C in a circle symbol) Joan Crane 1994" or "Copyright 1994 by Abraham Adams." For sound recordings published on or after February 15, 1972, a copyright notice might read "1994 XYZ Records, Inc." See below for more information about sound recordings. For mask works, a copyright notice might read "(C in a circle symbol) SDR Industries." Request Circular 100, "Federal Statutory Protection for Mask Works," for more information. As originally enacted, the 1976 law prescribed that all visually perceptible published copies of a work, or published phonorecords of a sound recording, should bear a proper copyright notice. This applies to such works published before March 1, 1989. After March 1, 1989, notice of copyright on these works is optional. Adding the notice, however, is strongly encouraged and, if litigation involving the copyright occurs, certain advantages exist for publishing a work with notice. Prior to March 1, 1989, the requirement for the notice applied equally whether the work was published in the United States or elsewhere by authority of the copyright owner. Compliance with the statutory notice requirements was the responsibility of the copyright owner. Unauthorized publication without the copyright notice, or with a defective notice, does not affect the validity of the copyright in the work. Advance permission from, or registration with, the Copyright Office is not required before placing a copyright notice on copies of the work or on phonorecords of a sound recording. Moreover, for works first published on or after January 1, 1978, through February 28, 1989, omission of the required notice, or use of a defective notice, did not result in forfeiture or outright loss of copyright protection. Certain omissions of, or defects in, the notice of copyright, however, could have led to loss of copyright protection if steps were not taken to correct or cure the omissions or defects. The Copyright Office has issued a final regulation (37 CFR 201.20) that suggests various acceptable positions for the notice of copyright. For further information, write to the Copyright Office and request Circular 3, "Copyright Notice", and Circular 96, Section 201.20, "Methods of Affixation and Positions of the Copyright Notice on Various Types of Works." Works Already in the Public Domain Neither the 1976 Copyright Act, the Berne Convention Implementation Act of 1988, the Copyright Renewal Act of 1992, nor the Sonny Bono Copyright Term Extension Act of 1998 will restore protection to works that fell into the public domain before the passage of the laws. However, the North American Free Trade Agreement Implementation Act (NAFTA) and the Uruguay Round Agreements Act (URAA) may restore copyright in certain works of foreign origin that were in the public domain in the United States. Under the copyright law in effect prior to January 1, 1978, copyright could be lost in several situations. The most common were publication without the required notice of copyright, expiration of the first 28-year term without renewal, or final expiration of the second copyright term. The Copyright Renewal Act of 1992 automatically renews first term copyrights secured between January 1, 1964, and December 31, 1977. Scope of Exclusive Rights Under Copyright The present law has changed and enlarged in some cases the scope of the copyright owner's rights. The new rights apply to all uses of a work subject to protection by copyright after January 1, 1978, regardless of when the work was created. -------------------------------- DURATION OF COPYRIGHT PROTECTION -------------------------------- Works Originally Copyrighted On or After January 1, 1978 A work that is created and fixed in tangible form for the first time on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 70 years after the last surviving author's death. For works made for hire and for anonymous and pseudonymous works (unless the author's identity is revealed in the Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is less. Works created before the 1976 law came into effect but neither published nor registered for copyright before January 1, 1978, have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for new works: the life-plus-70 or 95/120-year terms will apply. However, all works in this category are guaranteed at least 25 years of statutory protection. Works Copyrighted Before January 1, 1978 Under the law in effect before 1978, copyright was secured either on the date a work was published with notice of copyright or on the date of registration if the work was registered in unpublished form. In either case, copyright endured for a first term of 28 years from the date on which it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The copyright law extends the renewal term from 28 to 67 years for copyrights in existence on January 1, 1978. However, for works copyrighted prior to January 1, 1964, the copyright still must have been renewed in the 28th calendar year to receive the 67-year period of added protection. The amending legislation enacted June 26, 1992, automatically extends this second term for works first copyrighted between January 1, 1964, and December 31, 1977. For more detailed information on the copyright term, write or call the Copyright Office and request Circular 15a, "Duration of Copyright," and Circular 15t, "Extension of Copyright Terms." ------------------------------------------------------- WORKS FIRST PUBLISHED BEFORE 1978: THE COPYRIGHT NOTICE ------------------------------------------------------- GENERAL INFORMATION ABOUT THE COPYRIGHT NOTICE In investigating the copyright status of works first published before January 1, 1978, the most important thing to look for is the notice of copyright. As a general rule under the previous law, copyright protection was lost permanently if the notice was omitted from the first authorized published edition of a work or if it appeared in the wrong form or position. The form and position of the copyright notice for various types of works were specified in the copyright statute. Some courts were liberal in overlooking relatively minor departures from the statutory requirements, but a basic failure to comply with the notice provisions forfeited copyright protection and put the work into the public domain in this country. ABSENCE OF COPYRIGHT NOTICE For works first published before 1978, the complete absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright. For works first published before March 1, 1989, the copyright notice is mandatory, but omission could have been cured by registration before or within 5 years of publication and by adding the notice to copies published in the United States after discovery of the omission. Some works may contain a notice, others may not. The absence of a notice in works published on or after March 1, 1989, does not necessarily indicate that the work is in the public domain. UNPUBLISHED WORKS. No notice of copyright was required on the copies of any unpublished work. The concept of "publication" is very technical, and it was possible for a number of copies lacking a copyright notice to be reproduced and distributed without affecting copyright protection. FOREIGN EDITIONS. In the case of works seeking ad interim copyright [2], copies of a copyrighted work were exempted from the notice requirements if they were first published outside the United States. Some copies of these foreign editions could find their way into the United States without impairing the copyright. ACCIDENTAL OMISSION. The 1909 statute preserved copyright protection if the notice was omitted by accident or mistake from a "particular copy or copies." Unauthorized Publication. A valid copyright was not secured if someone deleted the notice and/or published the work without authorization from the copyright owner. SOUND RECORDINGS. Reproductions of sound recordings usually contain two different types of creative works: the underlying musical, dramatic, or literary work that is being performed or read and the fixation of the actual sounds embodying the performance or reading. For protection of the underlying musical or literary work embodied in a recording, it is not necessary that a copyright notice covering this material appear on the phonograph records or tapes on which the recording is reproduced. As noted above, a special notice is required for protection of the recording of a series of musical, spoken, or other sounds that were fixed on or after February 15, 1972. Sound recordings fixed before February 15, 1972, are not eligible for federal copyright protection. The Sound Recording Act of 1971, the present copyright law, and the Berne Convention Implementation Act of 1988 cannot be applied or be construed to provide any retroactive protection for sound recordings fixed before February 15, 1972. Such works, however, may be protected by various state laws or doctrines of common law. THE DATE IN THE COPYRIGHT NOTICE If you find a copyright notice, the date it contains may be important in determining the copyright status of the work. In general, the notice on works published before 1978 must include the year in which copyright was secured by publication or, if the work was first registered for copyright in unpublished form, the year in which registration was made. There are two main exceptions to this rule. 1. For pictorial, graphic, or sculptural works (Classes F through K under the 1909 law), the law permitted omission of the year date in the notice. 2. For "new versions" of previously published or copyrighted works, the notice was not usually required to include more than the year of first publication of the new version itself. This is explained further under "Derivative Works" below. The year in the notice usually (though not always) indicated when the copyright began. It is, therefore, significant in determining whether a copyright is still in effect; or, if the copyright has not yet run its course, the year date will help in deciding when the copyright is scheduled to expire. For further information about the duration of copyright, request Circular 15a, "Duration of Copyright." In evaluating the meaning of the date in a notice, you should keep the following points in mind: WORKS PUBLISHED AND COPYRIGHTED BEFORE JANUARY 1, 1978: A work published before January 1, 1978, and copyrighted within the past 75 years may still be protected by copyright in the United States if a valid renewal registration was made during the 28th year of the first term of the copyright. If renewed by registration or under the Copyright Renewal Act of 1992 and if still valid under the other provisions of the law, the copyright will expire 95 years from the end of the year in which it was first secured. Therefore, the U.S. copyright in any work published or copyrighted prior to January 1, 1923, has expired by operation of law, and the work has permanently fallen into the public domain in the United States. For example, on January 1, 1997, copyrights in works first published or copyrighted before January 1, 1922, have expired; on January 1, 1998, copyrights in works first published or copyrighted before January 1, 1923, have expired. Unless the copyright law is changed again, no works under protection on January 1, 1999 will fall into the public domain in the United States until January 1, 2019. WORKS FIRST PUBLISHED OR COPYRIGHTED BETWEEN JANUARY 1, 1923, AND DECEMBER 31, 1949, BUT NOT RENEWED: If a work was first published or copyrighted between January 1, 1923, and December 31, 1949, it is important to determine whether the copyright was renewed during the last (28th) year of the first term of the copyright. This can be done by searching the Copyright Office records or catalogs as explained previously. If no renewal registration was made, copyright protection expired permanently at the end of the 28th year of the year date it was first secured. WORKS FIRST PUBLISHED OR COPYRIGHTED BETWEEN JANUARY 1, 1923, AND DECEMBER 31, 1949, AND REGISTERED FOR RENEWAL: When a valid renewal registration was made and copyright in the work was in its second term on December 31, 1977, the renewal copyright term was extended under the latest act to 67 years. In these cases, copyright will last for a total of 95 years from the end of the year in which copyright was originally secured. Example: Copyright in a work first published in 1925 and renewed in 1953 will expire on December 31, 2020. WORKS FIRST PUBLISHED OR COPYRIGHTED BETWEEN JANUARY 1, 1950, AND DECEMBER 31, 1963: If a work was in its first 28-year term of copyright protection on January 1, 1978, it must have been renewed in a timely fashion to have secured the maximum term of copyright protection. If renewal registration was made during the 28th calendar year of its first term, copyright would endure for 95 years from the end of the year copyright was originally secured. If not renewed, the copyright expired at the end of its 28th calendar year. WORKS FIRST PUBLISHED OR COPYRIGHTED BETWEEN JANUARY 1, 1964, AND DECEMBER 31, 1977: If a work was in its first 28-year term of copyright protection on June 26, 1992, renewal registration is now optional. The term of copyright for works published or copyrighted during this time period has been extended to 95 years by the Copyright Renewal Act of 1992 and the Sonny Bono Term Extension Act of 1998. There is no need to make the renewal filing to extend the original 28-year copyright term to the full 95 years. However, there are several advantages to making a renewal registration during the 28th year of the original term of copyright. If renewal registration is made during the 28th year of the original term of copyright, the renewal copyright vests in the name of the renewal claimant on the effective date of the renewal registration; the renewal certificate constitutes prima facie evidence as to the validity of the copyright during the renewed and extended term and of the facts stated in the certificate; and, the right to use the derivative work in the extended term may be affected. Request Circular 15, "Renewal of Copyright," for further information. UNPUBLISHED, UNREGISTERED WORKS: Before 1978, if a work had been neither "published" in the legal sense nor registered in the Copyright Office, it was subject to perpetual protection under the common law. On January 1, 1978, all works of this kind, subject to protection by copyright, were automatically brought under the federal copyright statute. The duration of copyright for these works can vary, but none of them will expire before December 31, 2002. DERIVATIVE WORKS In examining a copy (or a record, disk, or tape) for copyright information, it is important to determine whether that particular version of the work is an original edition of the work or a "new version." New versions include musical arrangements, adaptations, revised or newly edited editions, translations, dramatizations, abridgments, compilations, and works republished with new matter added. The law provides that derivative works, published or unpublished, are independently copyrightable and that the copyright in such a work does not affect or extend the protection, if any, in the underlying work. Under the 1909 law, courts have also held that the notice of copyright on a derivative work ordinarily need not include the dates or other information pertaining to the earlier works incorporated in it. This principle is specifically preserved in the present copyright law. Thus, if the copy (or the record, disk, or tape) constitutes a derivative version of the work, these points should be kept in mind: + The date in the copyright notice is not necessarily an indication of when copyright in all the material in the work will expire. Some of the material may already be in the public domain, and some parts of the work may expire sooner than others. + Even if some of the material in the derivative work is in the public domain and free for use, this does not mean that the "new" material added to it can be used without permission from the owner of copyright in the derivative work. It may be necessary to compare editions to determine what is free to use and what is not. + Ownership of rights in the material included in a derivative work and in the preexisting work upon which it may be based may differ, and permission obtained from the owners of certain parts of the work may not authorize the use of other parts. THE NAME IN THE COPYRIGHT NOTICE Under the copyright statute in effect before 1978, the notice was required to include "the name of the copyright proprietor." The present act requires that the notice include "the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner." The name in the notice (sometimes in combination with the other statements on the copy, records, disk, tape, container, or label) often gives persons wishing to use the work the information needed to identify the owner from whom licenses or permission can be sought. In other cases, the name provides a starting point for a search in the Copyright Office records or catalogs, as explained at the beginning of this circular. In the case of works published before 1978, copyright registration is made in the name of the individual person or the entity identified as the copyright owner in the notice. For works published on or after January 1, 1978, registration is made in the name of the person or entity owning all the rights on the date the registration is made. This may or may not be the name appearing in the notice. In addition to its records of copyright registration, the Copyright Office maintains extensive records of assignments, exclusive licenses, and other documents dealing with copyright ownership. AD INTERIM *Ad interim* copyright was a special short-term copyright that applied to certain books and periodicals in the English language that were first manufactured and published outside the United States. It was a partial exception to the manufacturing requirements of the previous U.S. copyright law. Its purpose was to secure temporary U.S. protection for a work, pending the manufacture of an edition in the United States. The ad interim requirements changed several times over the years and were subject to a number of exceptions and qualifications. The manufacturing provisions of the copyright act expired on July 1, 1986, and are no longer a part of the copyright law. The transitional and supplementary provisions of the act provide that for any work in which ad interim copyright was subsisting or capable of being secured on December 31, 1977, copyright protection would be extended for a term compatible with the other works in which copyright was subsisting on the effective date of the new act. Consequently, if the work was first published on or after July 1, 1977, and was eligible for ad interim copyright protection, the provisions of the present copyright act will be applicable to the protection of these works. Anyone investigating the copyright status of an English-language book or periodical first published outside the United States before July 1, 1977, should check carefully to determine: + Whether the manufacturing requirements were applicable to the work; and + If so, whether the ad interim requirements were met. FOR FURTHER INFORMATION Information via the Internet: Frequently requested circulars, announcements, regulations, other related materials, and all copyright application forms are available via the Internet. You may access these via the Copyright Office homepage at www.loc.gov/copyright. Information by fax: Circulars and other information (but not application forms) are available by Fax-on-Demand at (202)707-2600. Information by telephone: For general information about copyright, call the Copyright Public Information Office at (202)707-3000. The TTY number is (202)707-6737. Information specialists are on duty from 8:30 a.m. to 5:00 p.m., eastern time, Monday through Friday, except federal holidays. Recorded information is available 24 hours a day. Or, if you know which application forms and circulars you want, request them from the Forms and Publications Hotline at (202)707-9100 24 hours a day. Leave a recorded message. Information by regular mail: Write to: Library of Congress Copyright Office Publications Section, LM-455 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 UNITED STATES COPYRIGHT OFFICE / THE LIBRARY OF CONGRESS SEARCH REQUEST FORM Library of Congress Copyright Office 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 Reference & Bibliography Section (202) 707-6850 8:30 a.m. to 5 p.m., Monday through Friday, eastern time Type of work: _ Book _ Music _ Motion Picture _ Drama _ Sound Recording _ Computer Program _ Photograph/Artwork _ Map _ Periodical _ Contribution _ Architectural Work _ Mask Work Search information you require: _ Registration _ Renewal _ Assignment _ Address Specifics of work to be searched: TITLE: AUTHOR: COPYRIGHT CLAIMANT (name in c notice): APPROXIMATE YEAR DATE OF PUBLICATION/CREATION: REGISTRATION NUMBER (if known): OTHER IDENTIFYING INFORMATION: If you need more space please attach additional pages. ------------------------------------------------------------------------ Estimates are based on the Copyright Office fee of $65 [1] an hour or fraction of an hour consumed. The more information you furnish as a basis for the search, the better service we can provide. The time between the date of receipt of your fee for the search and your receiving a report will vary from 8 to 12 weeks depending on workload. NAMES, TITLES, AND SHORT PHRASES ARE NOT COPYRIGHTABLE. Please read Circular 22 for more information on copyright searches. ------------------------------------------------------------------------ YOUR NAME: DATE: ADDRESS: DAYTIME TELEPHONE NO. ( ) ___-____ Convey results of estimate/search by telephone _ yes _ no Fee enclosed? _ yes Amount $________ _ no -------- ENDNOTES 1 NOTE: Registration filing fees and search fees are effective through June 30, 2002. For information on the fee changes, please write the Copyright Office, check the Copyright Office Website at www.loc.gov/copyright, or call (202) 707-3000. 2 "Ad interim copyright" refers to a special short term of copyright available to certain pre-1978 books and periodicals. For further information on ad interim copyright, see page 10. ***** [Federal Register: September 29, 1995 (Volume 60, Number 189)] [Page 50414-50423] [ML 509] LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201 and 202 [Docket No. 95-1B] Restoration of Certain Berne and WTO Works AGENCY: Copyright Office, Library of Congress. ACTION: Final regulations --------------------------------------------------------------------- SUMMARY: The Copyright Office is issuing final regulations establishing procedures that govern the filing of Notices of Intent to Enforce copyright (NIEs) and the registering of copyright claims to restored works as required by the Uruguay Round Agreements Act. The Act automatically restores copyright for certain foreign works effective January 1, 1996. Although restoration is automatic, the copyright owner may file a Notice of Intent to Enforce the Restored Copyright with the Copyright Office in order to enforce rights against reliance parties. EFFECTIVE DATE: These final regulations are effective October 1, 1995. FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024. Telephone: (202) 707-8380. Telefax: (202) 707- 8366. I. Background On December 8, 1994, President Clinton signed the "Uruguay Round Agreements Act" (URAA), Pub. L. No. 103-465, 108 Stat. 4809. The URAA contains several significant copyright amendments. It amends the software rental provision found in 17 U.S.C. 109(b) by eliminating the expiration or sunset date, amends Titles 17 and 18 to create civil and criminal remedies for "bootlegging" sound recordings of live musical performances and music videos, and adds a new 17 U.S.C. Sec. 104A which restores copyright in certain foreign works. The URAA also gives the Copyright Office several responsibilities related to restoration of those works. A. Restoration of Copyright in Eligible Works Under the URAA, restoration of copyright in works from countries which are currently eligible occurs automatically on January 1, 1996. An eligible country is a nation, other than the United States, that is a member of the Berne Convention, <SUP>1 or a member of [[Page 50415]] the World Trade Organization, or is the subject of a presidential proclamation declaring its eligibility. \1\ Convention concerning the creation of an International Union for the Protection of Literary and Artistic Works (Sept. 9, 1886, revised in 1908, 1928, 1948, 1967, 1971), hereinafter cited as the Berne Convention. --------------------------------------------------------------------- Works from any source country eligible under the URAA may be subject to automatic copyright restoration. However, to be so restored, a work must meet certain other requirements: 1. It is not in the public domain in its source country through expiration of the term of protection; 2. It is in the public domain in the United States due to noncompliance with formalities imposed at any time by United States copyright law, lack of subject matter protection in the case of sound recordings fixed before February 15, 1972, or lack of national eligibility; 3. It has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country; 4. If published, it was first published in an eligible country and was not published in the United States during the 30-day period following publication in such eligible country. Notwithstanding the fact that the work meets the above requirements, any work ever owned or administered by the Alien Property Custodian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a restored work. B. Effective Date of Restoration Eligible copyrights are restored automatically on the date the Agreement on Trade Related Aspects of Intellectual Property (TRIPs) enters into force with respect to the United States (URAA, section 514(a)). As discussed in the Notice of Policy Decision and Public Meeting, the Copyright Office has concluded that the effective date of copyright restoration is January 1, 1996. 60 FR 7793 (Feb. 9, 1995). President Clinton has confirmed that the date on which the obligations of the TRIPs Agreement will take effect for the United States is January 1, 1996. Proclamation No. 6780, 60 FR 15845 (Mar. 27, 1995). II. The Copyright Office's Responsibilities Although copyright restoration is automatic for eligible works, the URAA charged the Office with establishing regulations to govern the filing of Notices of Intent to Enforce (NIEs) restored copyrights and the registering of copyright claims in restored works by no later than October 1, 1995. The Act also requires the Office to publish a list in the Federal Register identifying restored works and their ownership where NIEs have been filed with the Office. The Office must also maintain a list containing all NIEs for inspection and copying by the public. A. Notices of Intent To Enforce 1. Notification of Reliance Party The URAA directs the owner of a restored work to notify reliance parties if the owner of the rights in a restored work plans to enforce those rights. A reliance party is typically a business or individual who, relying on the public domain status of a work, was already using the work prior to December 8, 1994, the date of enactment of the URAA. <SUP>2 The URAA authorizes the owner of a right in a restored work either to provide actual notice by serving a NIE directly on a reliance party or to provide constructive notice through the filing of a NIE with the Copyright Office. \2\ This is true for the great majority of works. However, for works from any country which was not eligible under the URAA as of December 8, 1994, reliance parties would be those using the work before the date on which that country becomes an eligible country by joining Berne, the WTO, or as a result of a Presidential proclamation. ---------------------------------------------------------------------- 2. Effective Filing Date A work whose source country is a member of the Berne Convention or the World Trade Organization on January 1, 1996, is restored on that date. The owner of such a work may file a NIE concerning that work between January 1, 1996, and December 31, 1997. The Office will publish the first listing of NIEs no later than May 1, 1996, and will publish lists at regular four-month intervals for a period of two years thereafter. In the case of works from any source country which became eligible for restoration under the URAA after January 1, 1996, owners of such works may file NIEs with the Copyright Office for a two year period starting from the date that country became eligible. The Office will also publish a list of NIEs as detailed above, for works from any of those countries, but the time frame for such lists will be measured from the date a particular country becomes eligible. 3. Effect of Notice on Reliance Party A reliance party has a twelve-month period to sell off previously manufactured stock, to publicly perform or display the work, or to authorize others to conduct these activities. This period begins when the owner of a restored work notifies the reliance party that the owner is enforcing copyright in the identified work. The date runs from either the date of publication in the Federal Register identifying the work or receipt of actual notice. If Notice of Intent to Enforce a Restored Copyright is provided both by publication in the Federal Register and service on the reliance party, the period runs from whichever date is the earlier, the date of Federal Register publication or service of actual notice. All reliance parties, except those who created certain derivative works, must cease using the work at the end of the twelve-month period unless they reach a licensing agreement with the copyright owner for continued use of the restored work. B. Registration of Copyright Claims in Restored Works The second filing that the owner of a restored work may choose to make with the Copyright Office is an application for registration of a copyright claim. Copyright registration is voluntary; the URAA directs the Office to have procedures for such registration, but it does not require owners of the restored works to register. Although the owner of a work not considered a Berne work as defined in 17 U.S.C. 101 must obtain or seek registration for a work before he or she can bring a copyright infringement action, the owner of rights in a Berne work does not have to register before initiating suit. <SUP>3 \3\ It would seem that this exception would apply only to works that meet the definition of a ``Berne Convention work'' in 17 U.S.C. 101. --------------------------------------------------------------------- It is true that the holder of a copyright certificate of registration may secure some procedural advantages in litigating a copyright suit based on the effective date of registration. If registration is made before or within 5 years of publication, it will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate; and if registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner. III. The Comments A. Comments Submitted The Copyright Office sought public comment concerning the implementation of the URAA both prior to and after publication of its Notice of Proposed Rulemaking (NPRM). The Office first published a notice inviting interested parties to submit written comments and/or to attend a public meeting held at the Copyright Office on March 20, 1995, to discuss issues [[Page 50416]] related to NIEs and registration of restored works. 60 FR 7793 (Feb. 9, 1995). The Office sent this notice to over ninety authors rights organizations and industry groups, as well as 182 foreign government agencies with copyright authority, to give them the opportunity to respond. Approximately forty individuals attended the meeting, including representatives from authors' rights organizations, museums, the publishing industry, the film industry, and the computer software industry. <SUP>4 Fifteen written comments were submitted. The Office considered all of these views as it developed proposed procedures for the filing of NIEs and the registering of copyright claims in restored works. On July 10, the Office published proposed regulations in the Federal Register. 60 FR 35522 (July 10, 1995). \4\ A copy of all written comments and a summary of the meeting can be found in the Public Information Office of the Copyright Office, Room LM-401, James Madison Memorial Building, Washington, D.C. ---------------------------------------------------------------------- In the Notice of Proposed Rulemaking, the Office invited interested parties to submit written comments on the proposed regulations. The Office received comments from the following parties: The Association of American Publishers (AAP); Irwin Karp; Janine Lorente, for Societe des Auteurs et Compositeurs Dramatiques (SACD); Nancy McAleer, for Thomson & Thomson; Bill Patry; David Pierce; Linda Shaughnessy, for AP Watt Ltd. Literary Agents; Ellen Theg, for International Television Trading Corp.; and Richard Wincor, of Coudert Brothers. The Office notes that some of the comments received in response to the NPRM had already been addressed, and some called for minor clarifications that have been made to the final regulations. Other comments, whether raised for the first or second time, raise substantive issues that are discussed below. B. Issues Related to Notices of Intent To Enforce 1. Formality Ms. Shaughnessy stated that since copyright restoration is to occur automatically, the procedures for filing NIEs are exceptionally onerous. She asserted it should be sufficient to file one NIE for all of the titles of one author. Ms. Shaughnessy illustrated her point by noting that she will be filing for 73 authors, but there will be hundreds of titles involved. Comment 3. Ms. Lorente asserted that the NIE is a formality in violation of at least the spirit of Berne and that because reliance parties are free to continue to exploit restored works in the United States unless a NIE is filed, an author cannot exercise his or her rights in the restored work automatically. Comment 5, at 1. The Copyright Office again emphasizes that the restoration of copyright in certain foreign works considered in the public domain in the United States creates a conflict between reliance parties' and copyright owners' legitimate concerns. Reliance parties have invested capital and labor in the lawful exploitation of public domain property; the sudden restoration of copyright divests them of these investments. Without some provision addressing this potential loss, there could be challenges based on the ``taking'' clause of the Fifth Amendment of the U.S. Constitution. On the other hand, it is important that the United States restore copyright protection in certain foreign works. The United States arguably failed to conform its law fully to the Berne Convention in 1989 when it declined to interpret Article 18(1) on restoration <SUP>5 as being mandatory. The U.S. Justice Department in its review of the URAA legislation concluded that under existing precedents interpreting the Fifth Amendment, the Notice of Intent to Enforce the Restored Copyright avoided an unconstitutional ``taking.'' <SUP>6 Thus, the Justice Department considered these provisions as critical. \5\ This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. Berne Convention art. 18(1)(Paris text). \6\ See Memorandum from Chris Schroeder, Counsellor to the Assistant Attorney General, Office of Legal Counsel, United States Dept. of Justice to Ira S. Shapiro, General Counsel, USTR, on Whether Certain Copyright Provisions in the Draft Legislation to Implement the Uruguay Round of Multilateral Trade Negotiations Would Constitute a Taking Under the Fifth Amendment (July 29, 1994). --------------------------------------------------------------------- We believe that such a filing is not inconsistent with the Berne Convention because Article 18(3) <SUP>7 of the Berne Convention specifically permits member nations to determine ``conditions'' for applying the principles of restoration. Copyright restoration occurs automatically; the URAA merely creates a narrow set of conditions requiring notification to reliance parties. Moreover, the information sought on the NIEs is calculated to assist in the voluntary licensing of the restored work. The decision of Congress to enact these provisions is, therefore, supported by the legitimate interests of both reliance parties and copyright owners, by constitutional considerations, and by Article 18(3) of the Berne Convention. \7\ The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle. Berne Convention art. 18(3) (Paris text). -------------------------------------------------------------------- The Office has tried, however, to make the procedures for filing NIEs practical, realizing that too detailed requirements would burden the owner and that too general ones would serve neither the owner nor the user of the restored work. The Office also notes that the URAA makes such filings less onerous by permitting the owner to notify all reliance parties of a restored work by filing in one central place, the Copyright Office. Only if the owner does not file with the Copyright Office within the appropriate time period, as detailed above, must the owner provide actual notice to each user of a restored work in order to enforce rights. The Office is permitting an owner of multiple works to file one NIE if each work is identified by title, has the same author, is owned by the same identified copyright owner or owner of an exclusive right, and the rights owned are the same. 2. Effective Date Mr. Patry stated that January 1, 1995, is the initial date of copyright restoration. Comment 2, at 1. Mr. Karp asserted that the effective date of 104(A) is December 8, 1994, but that first restoration of copyrights will occur on January 1, 1996. Comment 8, at 2. The Office reaffirms its recognition of January 1, 1996, as the effective date of initial copyright restoration. 3. Minor Errors or Omissions Ms. Lorente noted that it is often impossible for foreign authors to know the English language title under which a work is being exploited, especially as it is often not a literal translation. She, therefore, asked that a NIE not be invalidated if it gives the literal translation of the foreign title, and later it is determined that the English language title under which the work is exploited is different from the one given in the NIE. Comment 5, at 2. All information on the NIE other than the original title of the foreign work must be completed in English. The law requires that an English translation of a foreign title be given on the NIE; it does not specify that it be the English title under which the work was exploited. The Copyright Office will record the NIE under the titles that are provided; ultimately only a court can determine the validity of a NIE. However, the Office believes that a reasonable construction of the statute's [[Page 50417]] requirements would permit good faith discrepancies in the English translation. Furthermore, the URAA allows a party who has filed a NIE with the Copyright Office to correct minor errors or omissions by further notice at any time after the NIE is filed. The procedures and fees are the same for filing a NIE which corrects a previously filed NIE, except that the party making the correction should refer to previous NIE's volume and page number in the Copyright Office Documents Records, if known, on the corrected NIE. 4. Additional Information The AAP asked the Office to require copyright owners to expand on the information contained in the NIEs, such as the format on which first the work was fixed (film, disk, etc.), contributors (editors, publishers, or director, animator, screenwriter, cinematographer, etc.) and for photographs, collections, etc. a description (material/ subjects, organization, and/or classification). The AAP also asked the Office to request an e-mail address, names and addresses of any agents, representatives, or collecting societies that can serve as licensing authorities. The AAP suggested that the Office consider incentives such as fee discounts, for those providing more complete information. Comment 7, at 6-8. Ms. Theg asked that the year of creation be included in the NIE instead of the year of publication, since she believed it to be more consistently available. Comment 9, at 2. The Office has incorporated some of the AAP's suggestions into the NIE format and hopes it has struck an appropriate balance in its NIE by requesting information helpful to reliance parties, while not burdening the filer of the NIE with lengthy and detailed suggested information. 5. Accessible and Useful Public Record The URAA requires the Copyright Office to publish the titles and owners of restored works in the Federal Register. Since publication in the Federal Register is costly and the parties indicated that such information would not be as accessible as information made available via the Internet, the Office is limiting the information published in the Federal Register to what the law requires. Much of the information contained in the NIE will be available on COPICS, the Copyright Office's automated database of registrations and recorded copyright transfers and other documents. These records may be accessed by the public on terminals in the Copyright Office at the Library of Congress and are also available via the Internet. Since Internet access is not universal, Ms. Lorente asked that other means of getting information about NIEs, including written inquiries to the Copyright Office, should not be excluded. Comment 5, at 3. The AAP stated that it would be useful if the database could be searched in directories that listed all works restored in a particular country of origin. Comment 7, at 11. The AAP also asked that each work/ title be given in a separate entry in the database. Comment 7, at 9. Traditional search methods will continue to be available; NIEs may be searched in the COPICS database under the name of the owner, the titles it contains, as well as the names of the authors, if given. Although the Office will not index works by country of origin in the COPICS database or provide separate entries in the database for multiple works listed on one NIE, each work can be easily identified since the database is searchable by title, author, and the owner or owner of an exclusive right. Finally, though online access will be the primary means for providing this information to the public, upon request the Copyright Office staff will search the records at the rate of $20 for each hour or fraction thereof and furnish a written report. Search requests should be sent to the Reference and Bibliography Section, Copyright Office, Library of Congress, Washington, D.C. 20559-6000. In addition, individuals may come to the Office and do their own search free of charge. 6. Filing Fee Ms. Lorente stated that restoration of copyright should be automatic, and without a fee, comment 5, at 3, and Ms. Shaughnessy asked that only one fee be charged for all the works of an author. Comment 3. The Office notes that all of the works involved have been considered in the public domain in the United States. The URAA provides that restoration of eligible works is automatic, and a NIE may be filed directly on a reliance party. However, a notice which is effective against all reliance parties may be filed with the Copyright Office. The Office must examine and record that notice, issue an acknowledgement, create a catalog entry that includes among other things all the titles, publish the information in the Federal Register, and maintain the online catalog of the information. The URAA gives the Office authority to fix reasonable fees based on these costs. The Office realizes that requiring a filing on each work of an author will be onerous and we will permit multiple works meeting the criteria described in our regulations to be filed on one notice for a lesser fee. 7. Acknowledgement Ms. Lorente, Mr. Pierce and Ms. Theg all asserted that it is essential that the Copyright Office confirm the filing of a NIE. Ms. Lorente stated that it is very important that an author or agent have a document providing that he or she has complied with the URAA's provisions. See comment 5, at 2; comment 6, at 1; and comment 9, at 3. Ms. McAleer stressed that the acknowledgement of the recording of a NIE is an essential service because of the possibility that the NIE may be misplaced, causing its publication in the Federal Register to be delayed. Comment 4. The Office will mail an acknowledgement of recordation to the filer of a NIE, including the date of receipt, the volume and page on which the NIE is recorded, and the anticipated date of publication in the Federal Register. The Office will not issue a certificate of recordation. Completed recordations will appear in the COPICS database and the Federal Register. 8. Transfers Mr. Pierce asked that the Office require NIE filers, other than the author, to reference documents of transfer by date, parties and rights transferred, if any. He stated that this would decrease fraud and be less burdensome than filing the agreements with the Documents Unit of the Copyright Office. Comment 6, at 2. While the Copyright Office agrees that such a requirement might be useful, it cannot adopt this requirement since it is not authorized by the URAA. 9. Federal Register Publication The AAP agreed that, compared to the online database, the lists published in the Federal Register would be of secondary importance. AAP suggested, however, that the Federal Register entry also include the name of the author if possible. Comment 7, at 11. In order to minimize costs, the Office has concluded that only the minimum information (title, name of the first owner or owner of an exclusive right identified on the NIE), will be included in the list of NIEs published in the Federal Register. [[Page 50418]] C. Issues Related to Registration of a Restored Work 1. Simultaneous Registration Ms. Lorente asserted that registration is a second formality, and asked for simultaneous filing of NIEs and registration of copyright claims. She also argued both should be automatic and at no additional cost. Comment 5, at 2. Ms. Theg asked that the application for registration be modified to include the additional information requested in the NIE so that the NIE filing requirements could be satisfied at the time of making an application for registration. Comment 9, at 1. As discussed earlier, procedures permitting the copyright registration of restored works are not formalities in violation of the Berne Convention. Registration is entirely voluntary for Berne works since copyright registration of restored works is not a prerequisite for the filing of a copyright infringement action. Registration of a claim in a work involves significant additional work and by law requires a fee. The Office has, however, attempted to keep the processing work and the fees to a minimum. 2. New URAA Related Registration Procedures Mr. Pierce observed that registration, especially of motion pictures, is often very burdensome for foreign works, because of the difficulty in determining original publication dates and in submitting a copy of the work as first released. He concluded that applications will be filed for only a small percentage of the works unless the Office considers adopting more liberal deposit requirements such as accepting PAL, SECAM, VHS formats or written descriptions, allowing the registration of related works with multiple publication dates on one application, accepting approximate publication dates, and accepting a previously submitted deposit instead of requiring a new deposit. Comment 6, at 2. Ms. Theg asked that deposit requirements be waived entirely. Comment 9, at 2. On the other side, the AAP questioned the necessity for changes in the existing registration and recordation systems. If such changes are made, the AAP asserted that they should not create precedent for other registration and deposit practices. The AAP also questioned the need for procedures allowing blanket exemptions in some instances for depositing materials, accepting descriptive materials instead of a copy of the work, and allowing certain collections such as photos or TV series to be given a single identifying group name or title. The AAP is concerned that these procedures will make it difficult for reliance parties to identify restored works and comply with the law. The AAP asked that the Office instead deal with special situations on a case- by-case basis. Comment 7, at 12-16. The procedures developed for the registration of copyright claims for restored works must both balance the needs of applicants for copyright registration, reliance parties, the public, and the Copyright Office and also establish a system that will be feasible administratively and elicit necessary information. As indicated in our final regulations, these new procedures apply only to works restored under the URAA and NAFTA; they thus have no precedential effect on other filings. 3. Claimant for Registration Mr. Patry noted that the applicable statutory language relating to the filing of NIEs permits the ``owners of restored copyright or the owner of an exclusive right therein'' to file a NIE, while the URAA statutory language covering registration indicates that ``owners of restored copyrights'' may apply for copyright registration. He asserted the statute's failure to mention the owner of an exclusive right in connection with registration means that only an author may file a registration. Comment 2, at 1-2. The Office agrees that the restored copyright vests initially in the author as determined by the law of the source country of the work. A work, however, is registered in the name of a claimant. 17 U.S.C. 409. ``Claimant'' is a term of art defined in existing Copyright Office regulations, as either the author of a work or a person or organization that has obtained ownership of all rights under the copyright initially belonging to the author. 37 CFR 202.3(a)(3). Thus, an owner of only an exclusive right would not be permitted to file an application in his or her own name as the copyright claimant, although he or she could submit an application. While the URAA authorizes the Office to adopt regulations permitting owners of restored copyrights to file for registration of the restored copyright, there is nothing in the URAA to suggest that parties who register a restored work are any different from those under existing copyright law and regulations. Moreover, it seems essential to retain the concept of claimant since authors may no longer be alive. 4. Foreign Law The AAP stated that since URAA registrations may create legal presumptions as to the validity of the copyright and the facts stated on the registration certificate, the Office should question an applicant's determination of foreign law issues. Comment 7, at 15. Mr. Karp asserted that since foreign law questions will arise with respect to many issues related to rights restored, including initial ownership, the Office should accept multiple NIEs or registrations for the same work. Comment 8, at 2. The Copyright Office will accept such multiple, and possibly adverse, NIEs and registrations for the same work. One of the more difficult issues facing the Office is to what extent foreign law issues should be raised in the registration process. Section 104A(b) of the Act provides: ``A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work.'' Determining the appropriate source country and the applicable foreign law is a question that must ultimately be resolved by a court. At most, the Office could simply question whether or not an author was in fact the author under the law of the source country. The applicant's answer would have to be accepted. The Office does not, therefore, plan to question an applicant's determination of foreign law issues. IV. Procedures for Notices of Intent To Enforce A Copyright Office task force has been meeting for several months to discuss issues related to establishing regulations for URAA filings. The Office also carefully considered the comments made at the public meeting and those submitted by interested parties in response to the Notice of Policy Decision and Public Meeting and the Notice of Proposed Rulemaking. Most of the commentators supported a detailed NIE rather than one limited to the minimal information required by the statute. Based on those comments, the Office is requesting more information from the filer of a NIE than required under the URAA. As provided in the statute, this additional information will not affect the validity of the notice. Additional information such as the identity of the author is essential, however, for efficient and timely identification of a specific work where enforcement of copyright is sought. The additional information will also facilitate the licensing of uses of restored works. Therefore, the Office urges those parties who are filing NIEs to provide as much of this additional information as possible. [[Page 50419]] A. Format for NIEs 1. Constructive Notice The Copyright Office will not publish NIE forms; however, a suggested format for NIEs to be filed with the Office is included in the Appendix below. This format is available over the Internet and can be downloaded for use as a form. The suggested format requests information required by the statute and optional information which is extremely useful. 2. Actual Notice Those parties choosing to serve actual Notice of Intent to Enforce a Restored Copyright on the reliance party should note that the URAA requires additional information. Therefore, if they use the Copyright Office's NIE format as a guide for the actual notice, it will be incomplete unless the additional information specified is added. The URAA specifies: Notices of Intent to Enforce a Restored Copyright served on a reliance party shall be signed by the owner or the owner's agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice.<SUP>8 \8\ Emphasis added to show additional requirements for actual notice. 104A(e)(2)(B) of the URAA. Actual notices may be served on a reliance party at any time after the work is restored. 3. Who may file a Notice of Intent To Enforce? A NIE may be filed by someone who has the authority to sign it. The statute says that the NIE must be signed by the owner or the owner's agent. It can also be signed by the owner of any exclusive right in the restored copyright. As noted in the URAA and emphasized in the certification requirement, an agent cannot sign a NIE unless the agency relationship was constituted in writing signed by the owner before the notice is filed. 104A(e)(1)(A)(i) of the URAA. B. Filing Fee The filing fee is 30 U. S. dollars <SUP>9 for a NIE covering one work; for a NIE covering multiple works the fee is $30 for the first work, plus one dollar for each additional work. This fee includes the cost of an acknowledgement of recordation which will be mailed to the filer after the Copyright Office records the NIE. The regulations provide special instructions for payment of the filing fee, including payment by credit card. These instructions must be followed in order to permit processing of the fee. In addition, the filer of a NIE must insure that sufficient funds are available for payment. Insufficient fees could delay the effective date of notice. \9\ All references to charges will be in terms of U.S. dollars. --------------------------------------------------------------------- For all URAA filings, both recordation of a NIE and registration of a restored work, the Copyright Office will accept Visa and MasterCard and American Express credit cards to facilitate payment in U.S. dollars. Payment by credit card is, however, available only for URAA filings.<SUP>10 \10\ Acceptance of credit cards for URAA filings will serve as a test, however, by which the Office can determine at a later date the feasibility of accepting credit cards for other registrations and recordations. --------------------------------------------------------------------- C. Certification The Office requires the filer of a NIE to sign a certification statement at the end of the document filed indicating that the information given is correct to the best of his or her knowledge. The URAA explicitly states that any materially false statement knowingly made with respect to any restored copyright identified in any Notice of Intent shall make void all claims and assertions made with respect to such restored copyright. 104A(e)(3) of the URAA. D. Mailing Address Time is critical with processing NIEs, and it is, therefore, important that URAA mail not come in with regular Copyright Office mail. All NIEs should be mailed to: URAA/GATT, NIEs and Registrations, P.O. Box 72400, Southwest Station, Washington, D.C. 20024, USA. V. Procedures for Registering Copyright Claims in Restored Works The URAA raises a number of unique considerations regarding the registration of copyright claims in restored works. First, a number of technical requirements, many of which are contained in the definition of ``restored work,'' govern whether a foreign work is subject to automatic restoration under the URAA. In many cases applicants seeking registration will be foreign claimants who are unfamiliar with the registration procedures in the United States Copyright Office. In addition, communication over technical issues may be difficult. Finally, virtually all of the restored copyrights will be older works; and in some cases, submitting a copy or phonorecord of the work will be a problem. The Copyright Office weighed all of these considerations before developing a procedure for registering copyright claims in restored works. The Office has adopted a simplified procedure, which will still maintain the integrity of the public record and adhere to the provisions of the existing copyright law and the URAA. The Office will register a claim to United States copyright in any work for which copyright protection is restored by the URAA, even if a registration was previously made before the work entered the public domain in this country. The Office will also register a claim for any work previously registered where the Office originally advised the copyright claimant that there was some doubt concerning compliance with the formal requirements of the law. A. Registration Forms Because the URAA creates unique eligibility requirements, the Copyright Office concluded that it should create two new registration forms and a continuation page specifically designed to obtain the information necessary for a GATT registration made under the URAA. They are Form GATT, Form GATT/GRP and Form GATT/CON. The Form GATT covers registration of individual restored works and restored works published under a single series title, Form GATT/GRP covers registration of groups of related restored works under the conditions set forth in the regulations, and the Form GATT/CON is a page providing additional space and may be used with either of the GATT application forms. B. Deposit Required In recognition of the difficulty some applicants may have in submitting a deposit of an older work ``as first published,'' the Office has established special deposit regulations for URAA restored works. These regulations permit a deposit of other than the first published edition of the work, if absolutely necessary; applicants should keep in mind, however, that the deposit serves as a crucial part of the public record, and it is their interest to make a complete deposit. C. Filing Fee The filing fee for registration is $20, since the Copyright Office believes the work in administering the registration procedure for restored works will be roughly comparable to general [[Page 50420]] registration procedures. In addition, the regulations contain special group registration options which will permit the registration of: (1) A group of works published under a single series title. Form GATT should be used; the fee is $20 for up to a calendar year's worth of episodes, installments, or issues published under the same single series title; and (2) A group of at least two, but up to ten related individual works published within the same calendar year. Form GATT/GRP should be used, the fee is ten dollars per individual work, that is between $20-$100 per application. The registration regulations contain special instructions for payment of the filing fee, including payment by credit card. D. Mailing Address All GATT/URAA applications for registration should be mailed to: URAA/GATT, NIEs and Registrations, P.O. Box 72400, Southwest Station, Washington, DC 20024, USA. VI. NAFTA Exactly a year before the URAA was signed into law, Congress enacted the North American Free Trade Agreement Implementation Act (NAFTA) of December 8, 1993, adding a new section 104A to the Copyright Code that allowed copyright restoration in certain Mexican and Canadian works. See generally, Federal Register notices leading to the implementation of NAFTA, 59 FR 1408 (Jan. 10, 1994); 59 FR 12162 (Mar. 16, 1994); and 59 FR 58787 (Nov. 15, 1994). Although Congress modeled the URAA provisions on NAFTA, there are significant differences. For example, under the URAA, copyright restoration is automatic; under NAFTA it was not. Moreover, the URAA requires an English translation of the title as part of the NIE, but NAFTA did not require an English translation for NAFTA statements of intent. In enacting these two laws, Congress intended the restoration provisions to operate separately from one another. Therefore, works restored under NAFTA are not additionally restored under the URAA. It is clear that Congress intended a new section 104A enacted in the URAA, to replace the NAFTA version of section 104A. Unfortunately, the statutory language in the URAA creates some ambiguities. The recent presidential proclamation clarifies some of these questions. 60 FR 15845 (Mar. 27, 1995). The regulation governing filings under NAFTA will be amended to reflect a reference to the public law. This change is made necessary by the deletion of the NAFTA version of section 104A. In addition, Secs. 201.33 and 202.12 of the Copyright Office regulations contain provisions clarifying that works already restored under NAFTA do not additionally fall within the provisions of the URAA. Despite the differences in NAFTA and URAA notice filings, the registration procedures, including deposit preferences, available for URAA restored works are also available for those works restored under NAFTA. List of Subjects 37 CFR Part 201 Cable television, Copyright, Jukeboxes, Literary works, Satellites. 37 CFR Part 202 Claims, Copyright. In consideration of the foregoing, the Copyright Office amends 37 CFR parts 201 and 202 in the manner set forth below: PART 201--GENERAL PROVISIONS 1. The authority citation for part 201 is revised to read as follows: Authority: 17 U.S.C. 702. 2. Section 201.31 is amended by revising the first sentence of paragraph (a) to read as follows: Sec. 201.31 Procedures for copyright restoration in the United States for certain motion pictures and their contents in accordance with the North American Free Trade Agreement. (a) General. This section prescribes the procedures for submission of Statements of Intent pertaining to the restoration of copyright protection in the United States for certain motion pictures and works embodied therein as required by the North American Free Trade Agreement Implementation Act of December 8, 1993, Public Law No. 103-182. * * * * * * * * 3. Section 201.33 is added to read as follows: Sec. 201.33 Procedures for filing Notices of Intent to Enforce a restored copyright under the Uruguay Round Agreements Act. (a) General. This section prescribes the procedures for submission of Notices of Intent to Enforce a Restored Copyright under the Uruguay Round Agreements Act, as required in 17 U.S.C. 104A(a). On or before May 1, 1996, and every four months thereafter, the Copyright Office will publish in the Federal Register a list of works for which Notices of Intent to Enforce have been filed. It will maintain a list of these works. The Office will also make a more complete version of the information contained in the Notice of Intent to Enforce available on its automated database, which can be accessed over the Internet. (b) Definitions--(1) NAFTA work means a work restored to copyright on January 1, 1995, as a result of compliance with procedures contained in the North American Free Trade Agreement Implementation Act of December 8, 1993, Public Law No. 103-182. (2) Reliance party means any person who-- (i) With respect to a particular work, engages in acts, before the source country of that work becomes an eligible country under the URAA, which would have violated 17 U.S.C. 106 if the restored work had been subject to a copyright protection and who, after the source country becomes an eligible country, continues to engage in such acts; (ii) Before the source country of a particular work becomes an eligible country, makes or acquires one or more copies of phonorecords of that work; or (iii) As the result of the sale or other disposition of a derivative work, covered under the new 17 U.S.C. 104A(d)(3), or of significant assets of a person, described in the new 17 U.S.C. 104 A(d)(3) (A) or (B), is a successor, assignee or licensee of that person. (3) Restored work means an original work of authorship that-- (i) Is protected under 17 U.S.C. 104A(a); (ii) Is not in the public domain in its source country through expiration of term of protection; (iii) Is in the public domain in the United States due to-- (A) Noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (B) Lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (C) Lack of national eligibility; and (iv) Has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country. (4) Source country of a restored work is-- (i) A nation other than the United States; and [[Page 50421]] (ii) In the case of an unpublished work-- (A) The eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than one author or rightholder, the majority of foreign authors or rightholders are nationals or domiciliaries of eligible countries; or (B) If the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and (iii) In the case of a published work-- (A) The eligible country in which the work is first published; or (B) If the restored work is published on the same day in two or more eligible countries, the eligible country which has the most significant contacts with the work. (c) Forms. The Copyright Office does not provide forms for Notices of Intent to Enforce filed with the Copyright Office. It requests that filers of such notices follow the format set out in Appendix A of this section and give all of the information listed in paragraph (d) of this section. Notices of Intent to Enforce must be in English, and should be typed or printed by hand legibly in dark, preferably black, ink, on 8 1/2 by 11 inch white paper of good quality, with at least a one inch (or three cm) margin. (d) Requirements for Notice of Intent to Enforce a Copyright Restored Under the Uruguay Round Agreements Act. (1) Notices of Intent to Enforce should be sent to the following address: URAA/GATT, NIEs and Registrations, P.O. Box 72400, Southwest Station, Washington, DC 20024, USA. (2) The document should be clearly designated as ``Notice of Intent to Enforce a Copyright Restored under the Uruguay Round Agreements Act''. (3) Notices of Intent to Enforce must include: (i) Required information: (A) The title of the work, or if untitled, a brief description of the work; (B) An English translation of the title if title is in a foreign language; (C) Alternative titles if any; (D) Name of the copyright owner of the restored work, or of an owner of an exclusive right therein; (E) The address and telephone number where the owner of copyright or the exclusive right therein can be reached; and (F) The following certification signed and dated by the owner of copyright, or the owner of an exclusive right therein, or the owner's authorized agent: I hereby certify that for each of the work(s) listed above, I am the copyright owner, or the owner of an exclusive right, or the owner's authorized agent, the agency relationship having been constituted in a writing signed by the owner before the filing of this notice, and that the information given herein is true and correct to the best of my knowledge. Signature------------------------------------------------------------- Name (printed or typed)----------------------------------------------- As agent for (if applicable)------------------------------------------ Date:----------------------------------------------------------------- (ii) Optional but essential information: (A) Type of work (painting, sculpture, music, motion picture, sound recording, book, etc.); (B) Name of author(s); (C) Source country; (D) Approximate year of publication; (E) Additional identifying information (e.g. for movies: director, leading actors, screenwriter, animator; for photographs or books: subject matter; for books: editor, publisher, contributors); (F) Rights owned by the party on whose behalf the Notice of Intent to Enforce is filed (e.g., the right to reproduce/distribute/publicly display/publicly perform the work, or to prepare a derivative work based on the work, etc.); and (G) Telefax number at which owner, exclusive rights holder, or agent thereof can be reached. (4) Notices of Intent to Enforce may cover multiple works provided that each work is identified by title, all the works are by the same author, all the works are owned by the identified copyright owner or owner of an exclusive right, and the rights owned by the party on whose behalf the Notice of Intent is filed are the same. In the case of Notices of Intent to Enforce covering multiple works, the notice must separately designate for each work covered the title of the work, or if untitled, a brief description of the work; an English translation of the title if the title is in a foreign language; alternative titles, if any; the type of work; the source country; the approximate year of publication; and additional identifying information. (5) Notices of Intent to Enforce works restored on January 1, 1996, may be submitted to the Copyright Office on or after January 1, 1996, through December 31, 1997. (e) Fee. (1) Amount. The filing fee for recording Notices of Intent to Enforce is 30 U.S. dollars for notices covering one work. For notices covering multiple works as described in paragraph (d)(4) of this section, the fee is 30 U.S. dollars, plus one dollar for each additional work covered beyond the first designated work. For example, the fee for a Notice of Intent to Enforce covering three works would be $32. This fee includes the cost of an acknowledgement of recordation. (2) Method of Payment. (i) Checks, money orders, or bank drafts. The Copyright Office will accept checks, money orders, or bank drafts made payable to the Register of Copyrights. Remittances must be redeemable without service or exchange fees through a United States institution, must be payable in United States dollars, and must be imprinted with American Banking Association routing numbers. International money orders, and postal money orders that are negotiable only at a post office are not acceptable. CURRENCY WILL NOT BE ACCEPTED. (ii) Copyright Office Deposit Account. The Copyright Office maintains a system of Deposit Accounts for the convenience of those who frequently use its services. The system allows an individual or firm to establish a Deposit Account in the Copyright Office and to make advance deposits into that account. Deposit Account holders can charge copyright fees against the balance in their accounts instead of sending separate remittances with each request for service. For information on Deposit Accounts please write: Copyright Office, Library of Congress, Washington, DC 20559-6000, and request a copy of Circular 5, ``How to Open and Maintain a Deposit Account in the Copyright Office.'' (iii) Credit cards. For URAA filings the Copyright Office will accept VISA and MasterCard. Debit cards cannot be accepted for payment. With the NIE, a filer using a credit card must submit a separate cover letter stating the name of the credit card, the credit card number, the expiration date of the credit card, the total amount, and a signature authorizing the Office to charge the fees to the account. To protect the security of the credit card number, the filer must not write the credit card number on the Notice of Intent to Enforce. (f) Public online access. (1) Almost all of the information contained in the Notice of Intent to Enforce is available online in the Copyright Office History Documents (COHD) file through the Library of Congress electronic information system LC MARVEL through the Internet. Except on Federal holidays, this information may be obtained on terminals in the Copyright Office at the Library of Congress Monday through Friday 8:30 a.m. - 5:00 p.m. U.S. Eastern Time or over the Internet Monday - Friday 6:30 a.m. - 9:30 p.m. U.S. Eastern [[Page 50422]] Time, Saturday 8:00 a.m. - 5 p.m., and Sunday 1:00 p.m. - 5:00 p.m. (2) Alternative ways to connect through Internet are: (i) use the Copyright Office Home Page on the World Wide Web at: http:// lcweb.loc.gov/copyright, (ii) telnet to locis.loc.gov or the numeric address 140.147.254.3, or (iii) telnet to marvel.loc.gov, or the numeric address 140.147.248.7 and log in as marvel, or (iv) use a Gopher Client to connect to marvel.loc.gov. (3) Information available online includes: the title or brief description if untitled; an English translation of the title; the alternative titles if any; the name of the copyright owner or owner of an exclusive right; the author; the type of work; the date of receipt of the NIE in the Copyright Office; the date of publication in the Federal Register; the rights covered by the notice; and the address, telephone and telefax number (if given) of the copyright owner. (4) Online records of Notices of Intent to Enforce are searchable by the title, the copyright owner or owner of an exclusive right, and the author. (g) NAFTA work. The copyright owner of a work restored under NAFTA by the filing of a NAFTA Statement of Intent to Restore with the Copyright Office prior to January 1, 1995, is not required to file a Notice of Intent to Enforce under this regulation. Appendix A to Sec. 201.33--Notice of Intent To Enforce a Copyright Restored Under the Uruguay Round Agreements Act (URAA) 1. Title:---------------------------------------------------------- (If this work does not have a title, state ``No title.'') OR Brief description of work (for untitled works only): ________ ------------------------------------------------------------------- 2. English translation of title (if applicable):---------------------- 3. Alternative title(s) (if any):------------------------------------- 4. Type of work:------------------------------------------------------ (e.g. painting, sculpture, music, motion picture, sound recording, book) 5. Name of author(s):------------------------------------------------- 6. Source country:---------------------------------------------------- 7. Approximate year of publication:----------------------------------- 8. Additional identifying information:-------------------------------- (e.g. for movies; director, leading actors, screenwriter, animator, for photographs: subject matter; for books; editor, publisher, contributors, subject matter). 9. Name of copyright owner:------------------------------------------- (Statements may be filed in the name of the owner of the restored copyright or the owner of an exclusive right therein.) 10. If you are not the owner of all rights, specify the rights you own: ---------------------------------------------------------------------- (e.g. the right to reproduce/distribute publicly display/ publicly perform the work, or to prepare a derivative work based on the work) 11. Address at which copyright owner may be contacted: ---------------------------------------------------------------------- ---------------------------------------------------------------------- (Give the complete address, including the country and an ``attention'' line, or ``in care of'' name, if necessary.) 12. Telephone number of owner:---------------------------------------- 13. Telefax number of owner:------------------------------------------ 14. Certification and Signature: I hereby certify that, for each of the work(s) listed above, I am the copyright owner, or the owner of an exclusive right, or the owner's authorized agent, the agency relationship having been constituted in a writing signed by the owner before the filing of this notice, and that the information given herein is true and correct to the best of my knowledge. Signature:------------------------------------------------------------- Name (printed or typed):----------------------------------------------- As agent for (if applicable):------------------------------------------ Date:------------------------------------------------------------------ Note: Notices of Intent to Enforce must be in English, except for the original title, and either typed or printed by hand legibly in dark, preferably black, ink. They should be on 8 1/2'' by 11'' white paper of good quality, with at least a 1-inch (or 3 cm) margin. PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT 4. The authority citation for part 202 is revised to read as follows: Authority: 17 U.S.C. 702. 5. A new Sec. 202.12 is added to read as follows: Sec. 202.12 Restored copyrights. (a) General. This section prescribes rules pertaining to the registration of foreign copyright claims which have been restored to copyright protection under section 104A of 17 U.S.C., as amended by the Uruguay Round Agreements Act, Public Law 103-465. (b) Definitions. (1) For the purposes of this section, restored work and source country, have the definition given in the URAA and Sec. 201.33(b) of this chapter. (2) Descriptive statement for a work embodied solely in machine- readable format is a separate written statement giving the title of the work, nature of the work (for example: computer program, database, videogame, etc.), plus a brief description of the contents or subject matter of the work. (c) Registration. (1) General. Application, deposit, and filing fee for registering a copyright claim in a restored work under section 104A, as amended, may be submitted to the Copyright Office on or after January 1, 1996. The application, filing fee, and deposit should be sent in a single package to the following address: URAA/GATT, NIEs and Registration, P.O. Box 72400, Southwest Station, Washington, DC 20024, USA. (2) GATT Forms. Application for registration for single works restored to copyright protection under URAA should be made on Form GATT. Application for registration for a group of works published under a single series title and published within the same calendar year should also be made on Form GATT. Application for a group of at least two and up to ten individual and related works as described in paragraph (c)(5)(ii) of this section should be made on Form GATT/GRP. GATT/URAA forms may be obtained by writing or calling the Copyright Office Hotline at (202) 707-9100. In addition, legible photocopies of these forms are acceptable if reproduced on good quality, 8\1/2\ by 11 inch white paper, and printed head to head so that page two is printed on the back of page one. (3) Fee. (i) Amount. The filing fee for registering a copyright claim in a restored work is 20 U.S. dollars. The filing fee for registering a group of multiple episodes under a series title under paragraph (c)(5)(i) of this section is also $20. The filing fee for registering a group of related works under paragraph (c)(5)(ii) of this section is 10 U.S. dollars per individual work. (ii) Method of payment. (A) Checks, money orders, or bank drafts. The Copyright Office will accept checks, money orders, or bank drafts made payable to the Register of Copyrights. Remittances must be redeemable without service or exchange fees through a United States institution, must be payable in United States dollars, and must be imprinted with American Banking Association routing numbers. In addition, international money orders, and postal money orders that are negotiable only at a post office are not acceptable. CURRENCY WILL NOT BE ACCEPTED. (B) Copyright Office Deposit Account. The Copyright Office maintains a system of Deposit Accounts for the convenience of those who frequently use its services. The system allows an individual or firm to establish a Deposit Account in the Copyright Office and to make advance deposits into that account. Deposit Account holders can charge copyright fees against the balance in their accounts instead of sending separate remittances with each request for service. For information on Deposit Accounts please write: Register of Copyrights, Copyright Office, Library of Congress, Washington, DC 20559, and request a copy of Circular 5, ``How to Open and Maintain a Deposit Account in the Copyright Office.'' (C) Credit cards. For URAA registrations the Copyright Office will accept VISA and MasterCards, and American Express. Debit cards cannot be accepted for payment. With the registration [[Page 50423]] application, an applicant using a credit card must submit a separate cover letter stating the name of the credit card, the credit card number, the expiration date of the credit card, the total amount authorized and a signature authorizing the Office to charge the fees to the account. To protect the security of the credit card number, the applicant must not write the credit card number on the registration application. (4) Deposit. (i) General. The deposit for a work registered as a restored work under the amended section 104A, except for those works listed in paragraphs (c)(4)(ii) through (iv) of this section, should consist of one copy or phonorecord which best represents the copyrightable content of the restored work. In descending order of preference, the deposit should be: (A) The work as first published; (B) A reprint or re-release of the work as first published; (C) A photocopy or identical reproduction of the work as first published; or (D) A revised version which includes a substantial amount of the copyrightable content of the restored work with an indication in writing of the percentage of the restored work appearing in the revision. (ii) Previously registered works. No deposit is needed for works previously registered in the Copyright Office. (iii) Works embodied solely in machine-readable format. For works embodied only in machine-readable formats, the deposit requirements are as follows: (A) One machine-readable copy and a descriptive statement of the work; or (B) Representative excerpts of the work, such as printouts; or, if the claim extends to audiovisual elements in the work, a videotape of what appears on the screen. (iv) Pictorial, graphic and sculptural works. With the exception of 3-dimensional works of art, the general deposit preferences specified under paragraph (c)(4)(i) of this section shall govern. For 3- dimensional works of art, the preferred deposit is one or more photographs of the work, preferably in color. (v) Special relief. An applicant who is unable to submit any of the preferred deposits may seek an alternative deposit under special relief (37 CFR 202.20(d)). In such a case, the applicant should indicate in writing why the deposit preferences cannot be met, and submit alternative identifying materials clearly showing some portion of the copyrightable contents of the restored work which is the subject of registration. (vi) Motion pictures. If the deposit is a film print (16 or 35 mm), the applicant should contact the Performing Arts Section of the Examining Division for delivery instructions. The telephone number is: (202) 707-6040; the telefax number is: (202) 707-1236. (5) Group registration. Copyright claims in more than one restored work may be registered as a group in the following circumstances: (i) Single series title. Works published under a single series title in multiple episodes, installments, or issues during the same calendar year may be registered as a group, provided the owner of U.S. rights is the same for all episodes, installments, or issues. The Form GATT should be used and the number of episodes or installments should be indicated in the title line. The filing fee for registering a group of such works is $20. In general, the deposit requirements applicable to restored works will be applied to the episodes or installments in a similar fashion. In the case of a weekly or daily television series, applicants should first contact the Performing Arts Section of the Examining Division. The telephone number is (202) 707-6040; the telefax number is (202) 707-1236. (ii) Group of related works. A group of related works may be registered on the Form GATT/GRP, provided the following conditions are met: the author(s) is the same for all works in the group; the owner of all United States rights is the same for all works in the group; all works must have been published in the same calendar year; all works fit within the same subject matter category, i.e., literary works, musical works, motion pictures, etc.; and there are at least two and not more than ten individual works in the group submitted. Applicants registering a group of related works must file for registration on the Form GATT/GRP. The filing fee for registering a group of related works is ten dollars per individual work. (d) Works excluded. Works which are not copyrightable subject matter under title 17 of the U.S. Code, other than sound recordings fixed before February 15, 1972, shall not be registered as restored copyrights. Dated: September 25, 1995. Marybeth Peters, Register of Copyrights. Approved by: James H. Billington, The Librarian of Congress. [FR Doc. 95-24244 Filed 9-28-95; 8:45 am] ***9/29/95*** ***** U.S. Copyright Office, WIPO Copyright Treaty WIPO COPYRIGHT TREATY adopted by the Diplomatic Conference on December 20, 1996 Contents Preamble Article 1: Relation to the Berne Convention Article 2: Scope of Copyright Protection Article 3: Application of Articles 2 to 6 of the Berne Convention Article 4: Computer Programs Article 5: Compilations of Data (Databases) Article 6: Right of Distribution Article 7: Right of Rental Article 8: Right of Communication to the Public Article 9: Duration of the Protection of Photographic Works Article 10: Limitations and Exceptions Article 11: Obligations concerning Technological Measures Article 12: Obligations concerning Rights Management Information Article 13: Application in Time Article 14: Provisions on Enforcement of Rights Article 15: Assembly Article 16: International Bureau Article 17: Eligibility for Becoming Party to the Treaty Article 18: Rights and Obligations under the Treaty Article 19: Signature of the Treaty Article 20: Entry into Force of the Treaty Article 21: Effective Date of Becoming Party to the Treaty Article 22: No Reservation to the Treaty Article 23: Denunciation of the Treaty Article 24: Languages of the Treaty Article 25: Depositary Preamble The Contracting Parties, Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible, Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments, Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works, Emphasizing the outstanding significance of copyright protection as an incentive for literary and artistic creation, Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention, Have agreed as follows: Article 1 Relation to the Berne Convention (1) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention. This Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties. (2) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention for the Protection of Literary and Artistic Works. (3) Hereinafter, "Berne Convention" shall refer to the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works. (4) Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention. Article 2 Scope of Copyright Protection Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. Article 3 Application of Articles 2 to 6 of the Berne Convention Contracting Parties shall apply mutatis mutandis the provisions of Articles 2 to 6 of the Berne Convention in respect of the protection provided for in this Treaty. Article 4 Computer Programs Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression. Article 5 Compilations of Data (Databases) Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation. Article 6 Right of Distribution (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership. (2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author. Article 7 Right of Rental (1) Authors of: (i) computer programs; (ii) cinematographic works; and (iii) works embodied in phonograms as determined in the national law of Contracting Parties, shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or copies of their works. (2) Paragraph (1) shall not apply: (i) in the case of computer programs where the program itself is not the essential object of the rental; and (ii) in the case of cinematographic works, unless such commercial rental has led to widespread copying of such works materially impairing the exclusive right of reproduction. (3) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of authors for the rental of copies of their works embodied in phonograms may maintain that system provided that the commercial rental of works embodied in phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of authors. Article 8 Right of Communication to the Public Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them. Article 9 Duration of the Protection of Photographic Works In respect of photographic works, the Contracting Parties shall not apply the provisions of Article 7(4) of the Berne Convention. Article 10 Limitations and Exceptions (1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. (2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. Article 11 Obligations concerning Technological Measures Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. Article 12 Obligations concerning Rights Management Information (1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing or, with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention: (i) to remove or alter any electronic rights management information without authority; (ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority. (2) As used in this Article, "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public. Article 13 Application in Time Contracting Parties shall apply the provisions of Article 18 of the Berne Convention to all protection provided for in this Treaty. Article 14 Provisions on Enforcement of Rights (1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty. (2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. Article 15 Assembly (1) (a) The Contracting Parties shall have an Assembly. (b) Each Contracting Party shall be represented by one delegate who may be assisted by alternate delegates, advisors and experts. (c) The expenses of each delegation shall be borne by the Contracting Party that has appointed the delegation. The Assembly may ask the World Intellectual Property Organization (hereinafter referred to as "WIPO") to grant financial assistance to facilitate the participation of delegations of Contracting Parties that are regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations or that are countries in transition to a market economy. (2) (a) The Assembly shall deal with matters concerning the maintenance and development of this Treaty and the application and operation of this Treaty. (b) The Assembly shall perform the function allocated to it under Article 17(2) in respect of the admission of certain intergovernmental organizations to become party to this Treaty. (c) The Assembly shall decide the convocation of any diplomatic conference for the revision of this Treaty and give the necessary instructions to the Director General of WIPO for the preparation of such diplomatic conference. (3) (a) Each Contracting Party that is a State shall have one vote and shall vote only in its own name. (b) Any Contracting Party that is an intergovernmental organization may participate in the vote, in place of its Member States, with a number of votes equal to the number of its Member States which are party to this Treaty. No such intergovernmental organization shall participate in the vote if any one of its Member States exercises its right to vote and vice versa. (4) The Assembly shall meet in ordinary session once every two years upon convocation by the Director General of WIPO. (5) The Assembly shall establish its own rules of procedure, including the convocation of extraordinary sessions, the requirements of a quorum and, subject to the provisions of this Treaty, the required majority for various kinds of decisions. Article 16 International Bureau The International Bureau of WIPO shall perform the administrative tasks concerning the Treaty. Article 17 Eligibility for Becoming Party to the Treaty (1) Any Member State of WIPO may become party to this Treaty. (2) The Assembly may decide to admit any intergovernmental organization to become party to this Treaty which declares that it is competent in respect of, and has its own legislation binding on all its Member States on, matters covered by this Treaty and that it has been duly authorized, in accordance with its internal procedures, to become party to this Treaty. (3) The European Community, having made the declaration referred to in the preceding paragraph in the Diplomatic Conference that has adopted this Treaty, may become party to this Treaty. Article 18 Rights and Obligations under the Treaty Subject to any specific provisions to the contrary in this Treaty, each Contracting Party shall enjoy all of the rights and assume all of the obligations under this Treaty. Article 19 Signature of the Treaty This Treaty shall be open for signature until December 31, 1997, by any Member State of WIPO and by the European Community. Article 20 Entry into Force of the Treaty This Treaty shall enter into force three months after 30 instruments of ratification or accession by States have been deposited with the Director General of WIPO. Article 21 Effective Date of Becoming Party to the Treaty This Treaty shall bind (i) the 30 States referred to in Article 20, from the date on which this Treaty has entered into force; (ii) each other State from the expiration of three months from the date on which the State has deposited its instrument with the Director General of WIPO; (iii) the European Community, from the expiration of three months after the deposit of its instrument of ratification or accession if such instrument has been deposited after the entry into force of this Treaty according to Article 20, or, three months after the entry into force of this Treaty if such instrument has been deposited before the entry into force of this Treaty; (iv) any other intergovernmental organization that is admitted to become party to this Treaty, from the expiration of three months after the deposit of its instrument of accession. Article 22 No Reservations to the Treaty No reservation to this Treaty shall be admitted. Article 23 Denunciation of the Treaty This Treaty may be denounced by any Contracting Party by notification addressed to the Director General of WIPO. Any denunciation shall take effect one year from the date on which the Director General of WIPO received the notification. Article 24 Languages of the Treaty (1) This Treaty is signed in a single original in English, Arabic, Chinese, French, Russian and Spanish languages, the versions in all these languages being equally authentic. (2) An official text in any language other than those referred to in paragraph (1) shall be established by the Director General of WIPO on the request of an interested party, after consultation with all the interested parties. For the purposes of this paragraph, "interested party" means any Member State of WIPO whose official language, or one of whose official languages, is involved and the European Community, and any other intergovernmental organization that may become party to this Treaty, if one of its official languages is involved. Article 25 Depositary The Director General of WIPO is the depositary of this Treaty. U.S. Copyright Office 
5268	----	COURTS AND CRIMINALS By Arthur Train These essays, which were written between the years 1905-1910 are reprinted without revision, although in a few minor instances the laws may have been changed. CHAPTER I. The Pleasant Fiction of the Presumption of Innocence There was a great to-do some years ago in the city of New York over an ill-omened young person, Duffy by name, who, falling into the bad graces of the police, was most incontinently dragged to headquarters and "mugged" without so much as "By your leave, sir," on the part of the authorities. Having been photographed and measured (in most humiliating fashion) he was turned loose with a gratuitous warning to behave himself in the future and see to it that he did nothing which might gain him even more invidious treatment. Now, although many thousands of equally harmless persons had been similarly treated, this particular outrage was made the occasion of a vehement protest to the mayor of the city by a certain member of the judiciary, who pointed out that such things in a civilized community were shocking beyond measure, and called upon the mayor to remove the commissioner of police and all his staff of deputy commissioners for openly violating the law which they were sworn to uphold. But, the commissioner of police, who had sometimes enforced the penal statutes in a way to make him unpopular with machine politicians, saw nothing wrong in what he had done, and, what was more, said so most outspokenly. The judge said, "You did," and the commissioner said, "I didn't." Specifically, the judge was complaining of what had been done to Duffy, but more generally he was charging the police with despotism and oppression and with systematically disregarding the sacred liberties of the citizens which it was their duty to protect. Accordingly the mayor decided to look into the matter for himself, and after a lengthy investigation came to the alleged conclusion that the "mugging" of Duffy was a most reprehensible thing and that all those who were guilty of having any part therein should be instantly removed from office. He, therefore, issued a pronunciamento to the commissioner demanding the official heads of several of his subordinates, which order the commissioner politely declined to obey. The mayor thereupon removed him and appointed a successor, ostensibly for the purpose of having in the office a man who should conduct the police business of the city with more regard for the liberties of the inhabitants thereof. The judge who had started the rumpus expressed himself as very much pleased and declared that now at last a new era had dawned wherein the government was to be administered with a due regard for law. Now, curiously enough, although the judge had demanded the removal of the commissioner on the ground that he had violated the law and been guilty of tyrannous and despotic conduct, the mayor had ousted him not for pursuing an illegal course in arresting and "mugging" a presumptively innocent man (for illegal it most undoubtedly was), but for inefficiency and maladministration in his department. Said the mayor in his written opinion: "After thinking over this matter with the greatest care, I am led to the conclusion that as mayor of the city of New York I should not order the police to stop taking photographs of people arrested and accused of crime or who have been indicted by grand juries. That grave injustice may occur the Duffy case has demonstrated, but I feel that it is not the taking of the photograph that has given cause to the injustice, but the inefficiency and maladministration of the police department, etc." In other words, the mayor set the seal of his official approval upon the very practice which caused the injustice to Duffy. "Mugging" was all right, so long as you "mugged" the right persons. The situation thus outlined was one of more than passing interest. A sensitive point in our governmental nervous system had been touched and a condition uncovered that sooner or later must be diagnosed and cured. For the police have no right to arrest and photograph a citizen unconvicted of crime, since it is contrary to law. And it is ridiculous to assert that the very guardians of the law may violate it so long as they do so judiciously and do not molest the Duffys. The trouble goes deeper than that. The truth is that we are up against that most delicate of situations, the concrete adjustment of a theoretical individual right to a practical necessity. The same difficulty has always existed and will always continue to exist whenever emergencies requiring prompt and decisive action arise or conditions obtain that must be handled effectively without too much discussion. It is easy while sitting on the piazza with your cigar to recognize the rights of your fellow-men, you may assert most vigorously the right of the citizen to immunity from arrest without legal cause, but if you saw a seedy character sneaking down a side street at three o'clock in the morning, his pockets bulging with jewelry and silver! Would you have the policeman on post insist on the fact that a burglary had been committed being established beyond peradventure before arresting the suspect, who in the meantime would undoubtedly escape? Of course, the worthy officer sometimes does this, but his conduct in that case becomes the subject of an investigation on the part of his superiors. In fact, the rules of the New York police department require him to arrest all persons carrying bags in the small hours who cannot give a satisfactory account of themselves. Yet there is no such thing under the laws of the State as a right "to arrest on suspicion." No citizen may be arrested under the statutes unless a crime has actually been committed. Thus, the police regulations deliberately compel every officer either to violate the law or to be made the subject of charges for dereliction of duty. A confusing state of things, truly, to a man who wants to do his duty by himself and by his fellow-citizens! The present author once wrote a book dealing with the practical administration of criminal justice, in which the unlawfulness of arrest on mere "suspicion" was discussed at length and given a prominent place. But when the time came for publication that portion of it was omitted at the earnest solicitation of certain of the authorities on the ground that as such arrests were absolutely necessary for the enforcement of the criminal law a public exposition of their illegality would do infinite harm. Now, as it seems, the time has come when the facts, for one reason or another, should be faced. The difficulty does not end, however, with "arrest on suspicion," "the third degree," "mugging," or their allied abuses. It really goes to the root of our whole theory of the administration of the criminal law. Is it possible that on final analysis we may find that our enthusiastic insistence upon certain of the supposedly fundamental liberties of the individual has led us into a condition of legal hypocrisy vastly less desirable than the frank attitude of our continental neighbors toward such subjects? The Massachusetts Constitution of 1785 concludes with the now famous words: "To the end that this may be a government of laws and not of men." That is the essence of the spirit of American government. Our forefathers had arisen and thrown off the yoke of England and her intolerable system of penal government, in which an accused had no right to testify in his own behalf and under which he could be hung for stealing a sheep. "Liberty!" "Liberty or death!" That was the note ringing in the minds and mouths of the signers of the Declaration and framers of the Constitution. That is the popular note to-day of the Fourth of July orator and of the Memorial Day address. This liberty was to be guaranteed by laws in such a way that it was never to be curtailed or violated. No mere man was to be given an opportunity to tamper with it. The individual was to be protected at all costs. No king, or sheriff, or judge, or officer was to lay his finger on a free man save at his peril. If he did, the free man might immediately have his "law"--"have the law on him," as the good old expression was--for no king or sheriff was above the law. In fact, we were so energetic in providing safeguards for the individual, even when a wrong-doer, that we paid very little attention to the effectiveness of kings or sheriffs or what we had substituted for them. And so it is to-day. What candidate for office, what silver-tongued orator or senator, what demagogue or preacher could hold his audience or capture a vote if, when it came to a question of liberty, he should lift up his voice in behalf of the rights of the majority as against the individual? Accordingly in devising our laws We have provided in every possible way for the freedom of the citizen from all interference on the part of the authorities. No one may be stopped, interrogated, examined, or arrested unless a crime has been committed. Every one is presumed to be innocent until shown to be guilty by the verdict of a jury. No one's premises may be entered or searched without a warrant which the law renders it difficult to obtain. Every accused has the right to testify in his own behalf, like any other witness. The fact that he has been held for a crime by a magistrate and indicted by a grand jury places him at not the slightest disadvantage so far as defending himself against the charge is concerned, for he must be proven guilty beyond any reasonable doubt. These illustrations of the jealousy of the law for the rights of citizens might be multiplied to no inconsiderable extent. Further, our law allows a defendant convicted of crime to appeal to the highest courts, whereas if he be acquitted the people or State of New York have no right of appeal at all. Without dwelling further on the matter it is enough to say that in general the State constitutions, their general laws, or penal statutes provide that a person who is accused or suspected of crime must be presumed innocent and treated accordingly until his guilt has been affirmatively established in a jury trial; that meantime he must not be confined or detained unless a crime has in fact been committed and there is at least reasonable cause to believe that he has committed it; and, further, that if arrested he must be given an immediate opportunity to secure bail, to have the advice of counsel, and must in no way be compelled to give any evidence against himself. So much for the law. It is as plain as a pikestaff. It is printed in the books in words of one syllable. So far as the law is concerned we have done our best to perpetuate the theories of those who, fearing that they might be arrested without a hearing, transported for trial, and convicted in a king's court before a king's judge for a crime they knew nothing of, insisted on "liberty or death." They had had enough of kings and their ways. Hereafter they were to have "a government of laws and not of men." But the unfortunate fact remains that all laws, however perfect, must in the end be administered by imperfect men. There is, alas! no such thing as a government of laws and not of men. You may have a government more of laws and less of men, or vice versa, but you cannot have an auto-administration of the Golden Rule. Sooner or later you come to a man--in the White House, or on a wool sack, or at a desk in an office, or in a blue coat and brass buttons--and then, to a very considerable extent, the question of how far ours is to be a government of laws or of men depends upon him. Generally, so far as he is concerned, it is going to be of man, for every official finds that the letter of the law works an injustice many times out of a hundred. If he is worth his salary he will try to temper justice with mercy. If he is human he will endeavor to accomplish justice as he sees it so long as the law can be stretched to accommodate the case. Thus, inevitably there is a conflict between the law and its application. It is the human element in the administration of the law that enables lawyers to get a living. It is usually not difficult to tell what the law is; the puzzle is how it is going to be applied in any individual case. How it is going to be applied depends very largely upon the practical side of the matter and the exigencies of existing conditions. It is pretty hard to apply inflexibly laws over a hundred years old. It is equally hard to police a city of a million or so polyglot inhabitants with a due regard to their theoretic constitutional rights. But suppose in addition that these theoretic rights are entirely theoretic and fly in the face of the laws of nature, experience, and common sense? What then? What is a police commissioner to do who has either got to make an illegal arrest or let a crook get away, who must violate the rights of men illegally detained by outrageously "mugging" them or egregiously fail to have a record of the professional criminals in his bailiwick? He does just what all of us do under similar conditions--he "takes a chance." But in the case of the police the thing is so necessary that there ceases practically to be any "chance" about it. They have got to prevent crime and arrest criminals. If they fail they are out of a job, and others more capable or less scrupulous take their places. The fundamental law qualifying all systems is that of necessity. You can't let professional crooks carry off a voter's silverware simply because the voter, being asleep, is unable instantly to demonstrate beyond a reasonable doubt that his silver has been stolen. You can't permit burglars to drag sacks of loot through the streets of the city at 4 A.M. simply because they are presumed to be innocent until proven guilty. And if "arrest on suspicion" were not permitted, demanded by the public, and required by the police ordinances, away would go the crooks and off would go the silverware, the town would be full of "leather snatchers" and "strong-arm men," respectable citizens would be afraid to go out o' nights, and liberty would degenerate into license. That is the point. We Americans, or at least some of the newer ones of us, have an idea that "liberty" means the right to steal apples from our neighbor's orchard without interference. Now, somewhere or other, there has got to be a switch and a strong arm to keep us in order, and the switch and arm must not wait until the apples are stolen and eaten before getting busy. If we come climbing over the fence sweating apples at every pore, is Farmer Jones to go and count his apples before grabbing us? The most presumptuous of all presumptions is this "presumption of innocence." It really doesn't exist, save in the mouths of judges and in the pages of the law books. Yet as much to-do is made about it as if it were a living legal principle. Every judge in a criminal case is required to charge the jury in form or substance somewhat as follows: "The defendant is presumed to be innocent until that presumption is removed by competent evidence"... "This presumption is his property, remaining with him throughout the trial and until rebutted by the verdict of the jury."... "The jury has no right to consider the fact that the defendant stands at the bar accused of a crime by an indictment found by the grand jury." Shades of Sir Henry Hawkins! Does the judge expect that they are actually to swallow that? Here is a jury sworn "to a true verdict find" in the case of an ugly looking customer at the bar who is charged with knocking down an old man and stealing his watch. The old man--an apostolic looking octogenarian--is sitting right over there where the jury can see him. One look at the plaintiff and one at the accused and the jury may be heard to mutter, "He's guilty,--all right!" "Presumed to be innocent?" Why, may I ask? Do not the jury and everybody else know that this good old man would never, save by mistake, accuse anybody falsely of crime? Innocence! Why, the natural and inevitable presumption is that the defendant is guilty! The human mind works intuitively by comparison and experience. We assume or presume with considerable confidence that parents love their children, that all college presidents are great and good men, and that wild bulls are dangerous animals. We may be wrong. But it is up to the other fellow to show us the contrary. Now, if out of a clear sky Jones accuses Robinson of being a thief we know by experience that the chances are largely in favor of Jones's accusation being well founded. People as a rule don't go rushing around charging each other with being crooks unless they have some reason for it. Thus, at the very beginning the law flies in the face of probabilities when it tells us that a man accused of crime must be presumed to be innocent. In point of fact, whatever presumption there is (and this varies with the circumstances) is all the other way, greater or less depending upon the particular attitude of mind and experience of the individual. This natural presumption of guilt from the mere fact of the charge is rendered all the more likely by reason of the uncharitable readiness with which we believe evil of our fellows. How unctuously we repeat some hearsay bit of scandal. "I suppose you have heard the report that Deacon Smith has stolen the church funds?" we say to our friends with a sententious sigh--the outward sign of an invisible satisfaction. Deacon Smith after the money-bag? Ha! ha! Of course, he's guilty! These deacons are always guilty! And in a few minutes Deacon Smith is ruined forever, although the fact of the matter may well have been that he was but counting the money in the collection-plate. This willingness to believe the worst of others is a matter of common knowledge and of historical and literary record. "The evil that men do lives after them--" It might well have been put, "The evil men are said to have done lives forever." However unfair, this is a psychologic condition which plays an important part in rendering the presumption of innocence a gross absurdity. But let us press the history of Jones and Robinson a step further. The next event in the latter's criminal history is his appearance in court before a magistrate. Jones produces his evidence and calls his witnesses. Robinson, through his learned counsel, cross-examines them and then summons his own witnesses to prove his innocence. The proceeding may take several days or perhaps weeks. Briefs are submitted. The magistrate considers the testimony and finally decides that he believes Robinson guilty and must hold him for the action of the grand jury. You might now, it would perhaps seem, have some reason for suspecting that Robinson was not all that he should be. But no! He is still presumed in the eyes of the law, and theoretically in the eyes of his fellows, to be as innocent as a babe unborn. And now the grand jury take up and sift the evidence that has already been gone over by the police judge. They, too, call witnesses and take additional testimony. They likewise are convinced of Robinson's guilt and straightway hand down an indictment accusing him of the crime. A bench warrant issues. The defendant is run to earth and ignominiously haled to court. But he is still presumed to be innocent! Does not the law say so? And is not this a "government of laws"? Finally, the district attorney, who is not looking for any more work than is absolutely necessary, investigates the case, decides that it must be tried and begins to prepare it for trial. As the facts develop themselves Robinson's guilt becomes more and more clear. The unfortunate defendant is given any opportunity he may desire to explain away the charge, but to no purpose. The district attorney knows Robinson is guilty, and so does everybody else, including Robinson. At last this presumably innocent man is brought to the bar for trial. The jury scan his hang-dog countenance upon which guilt is plainly written. They contrast his appearance with that of the honest Jones. They know he has been accused, held by a magistrate, indicted by a grand jury, and that his case, after careful scrutiny, has been pressed for trial by the public prosecutor. Do they really presume him innocent? Of course not. They presume him guilty. "So soon as I see him come through dot leetle door in the back of the room, then I know he's guilty!" as the foreman said in the old story. What good does the presumption of innocence, so called, do for the miserable Robinson? None whatever--save perhaps to console him in the long days pending his trial. But such a legal hypocrisy could never have deceived anybody. How much better it would be to cast aside all such cant and frankly admit that the attitude of the continental law toward the man under arrest is founded upon common sense and the experience of mankind. If he is the wrong man it should not be difficult for him to demonstrate the fact. At any rate circumstances are against him, and he should be anxious to explain them away if he can. The fact of the matter is, that in dealing with practical conditions, police methods differ very little in different countries. The authorities may perhaps keep considerably more detailed "tabs" on people in Europe than in the United States, but if they are once caught in a compromising position they experience about the same treatment wherever they happen to be. In France (and how the apostles of liberty condemn the iniquity of the administration of criminal justice in that country!) the suspect or undesirable receives a polite official call or note, in which he is invited to leave the locality as soon as convenient. In New York he is arrested by a plainclothes man, yanked down to Mulberry Street for the night, and next afternoon is thrust down the gangplank of a just departing Fall River liner. Many an inspector has earned unstinted praise (even from the New York Evening Post) by "clearing New York of crooks" or having a sort of "round-up" of suspicious characters whom, after proper identification, he has ejected from the city by the shortest and quickest possible route. Yet in the case of every person thus arrested and driven out of the town he has undoubtedly violated constitutional rights and taken the law into his own hands. What redress can a penniless tramp secure against a stout inspector of police able and willing to spend a considerable sum of money in his own defence, and with the entire force ready and eager to get at the tramp and put him out of business? He swallows his pride, if he has any, and ruefully slinks out of town for a period of enforced abstinence from the joys of metropolitan existence. Yet who shall say that, in spite of the fact that it is a theoretic outrage upon liberty, this cleaning out of the city is not highly desirable? One or two comparatively innocent men may be caught in the ruck, but they generally manage to intimate to the police that the latter have "got them wrong" and duly make their escape. The others resume their tramp from city to city, clothed in the presumption of their innocence. Since the days of the Doges or of the Spanish Inquisition there has never been anything like the morning inspection or "line up" of arrested suspects at the New York police head-quarters.* (*Now abolished.) One by one the unfortunate persons arrested during the previous night (although not charged with any crime) are pointed out to the assembled detective force, who scan them from beneath black velvet masks in order that they themselves may not be recognized when they meet again on Broadway or the darker side streets of the city. Each prisoner is described and his character and past performances are rehearsed by the inspector or head of the bureau. He is then measured, "mugged," and, if lucky, turned loose. What does his liberty amount to or his much-vaunted legal rights if the city is to be made safe? Yet why does not some apostle of liberty raise his voice and cry aloud concerning the wrong that has been done? Are not the rights of a beggar as sacred as those of a bishop? One of the most sacred rights guaranteed under the law is that of not being compelled to give evidence against ourselves or to testify to anything which might degrade or incriminate us. Now, this is all very fine for the chap who has his lawyer at his elbow or has had some similar previous experience. He may wisely shut up like a clam and set at defiance the tortures of the third degree. But how about the poor fellow arrested on suspicion of having committed a murder, who has never heard of the legal provision in question, or, if he has, is cajoled or threatened into "answering one or two questions"? Few police officers take the trouble to warn those whom they arrest that what they say may be used against them. What is the use? Of course, when they testify later at the trial they inevitably begin their testimony with the stereotyped phrase, "I first warned the defendant that anything which he said might be used against him." If they did warn him they probably whispered it or mumbled it so that he didn't hear what they said, or, in any event, whether they said it or not, half a dozen of them probably took him into a back room and, having set him with his back against the wall, threatened and swore at him until he told them what he knew, or thought he knew, and perhaps confessed his crime. When the case comes to trial the police give the impression that the accused quietly summoned them to his cell to make a voluntary statement. The defendant denies this, of course, but the evidence goes in and the harm has been done. No doubt the methods of the inquisition are in vogue the world over under similar conditions. Everybody knows that a statement by the accused immediately upon his arrest is usually the most important evidence that can be secured in any case. It is a police officer's duty to secure one if he can do so by legitimate means. It is his custom to secure one by any means in his power. As his oath, that such a statement was voluntary, makes it ipso facto admissible as evidence, the statutes providing that a defendant cannot be compelled to give evidence against himself are practically nullified. In the more important cases the accused is usually put through some sort of an inquisitorial process by the captain at the station-house. If he is not very successful at getting anything out of the prisoner the latter is turned over to the sergeant and a couple of officers who can use methods of a more urgent character. If the prisoner is arrested by headquarters detectives, various efficient devices to compel him to "give up what he knows" may be used--such as depriving him of food and sleep, placing him in a cell with a "stool pigeon" who will try to worm a confession out of him, and the usual moral suasion of a heart-to-heart talk in the back room with the inspector. This is the darker side of the picture of practical government. It is needless to say that the police do not always suggest the various safeguards and privileges which the law accords to defendants thus arrested, but the writer is free to confess that, save in exceptional cases, he believes the rigors of the so-called third degree to be greatly exaggerated. Frequently in dealing with rough men rough methods are used, but considering the multitude of offenders, and the thousands of police officers, none of whom have been trained in a school of gentleness, it is surprising that severer treatment is not generally met with on the part of those who run afoul of the criminal law. The ordinary "cop" tries to do his duty as effectively as he can. With the average citizen gruffness and roughness go a long way in the assertion of authority. In the task of policing a big city, the rights of the individual must indubitably suffer to a certain extent if the rights of the multitude are to be properly protected. We can make too much of small injustices and petty incivilities. Police business is not gentle business. The officers are trying to prevent you and me from being knocked on the head some dark night or from being chloroformed in our beds. Ten thousand men are trying to do a thirty-thousand-man job. The struggle to keep the peace and put down crime is a hard one anywhere. It requires a strong arm that cannot show too punctilious a regard for theoretical rights when prompt decisions have to be made and equally prompt action taken. The thieves and gun men have got to be driven out. Suspicious characters have got to be locked up. Somehow or other a record must be kept of professional criminals and persons likely to be active in law-breaking. These are necessities in every civilized country. They are necessities here. Society employs the same methods of self-protection the world over. No one presumes a person charged with crime to be innocent, either in Delhi, Pekin, Moscow, or New York. Under proper circumstances we believe him guilty. When he comes to be tried the jury consider the evidence, and if they are reasonably sure he is guilty they convict him. The doctrine of reasonable doubt is almost as much of a fiction as that of the presumption of innocence. From the time a man is arrested until arraignment he is quizzed with a view to inducing him to admit his offence or give some evidence that may help convict him. Logically, why should not a person charged with a crime be obliged to give what explanation he can of the affair? Why should he have the privilege of silence? Doesn't he owe a duty to the public the same as any other witness? If he is innocent he has nothing to fear; if he is guilty--away with him! The French have no false ideas about such things and at the same time they have a high regard for liberty. We merely cheat ourselves into thinking that our liberty is something different from French liberty because we have a lot of laws upon our statute books that are there only to be disregarded and would have to be repealed instantly if enforced. Take, for instance, the celebrated provision of the penal laws that the failure of an accused to testify in his own behalf shall not be taken against him. Such a doctrine flies in the face of human nature. If a man sits silent when witnesses under oath accuse him of a crime it is an inevitable inference that he has nothing to say--that no explanation of his would explain. The records show that the vast majority of accused persons who do not avail themselves of the opportunity to testify are convicted. Thus, the law which permits a defendant to testify in reality compels him to testify, and a much-invoked safeguard of liberty turns out to be a privilege in name only. In France or America alike a man accused of crime sooner or later has to tell what he knows--or take his medicine. It makes little difference whether he does so under the legalized interrogation of a "juge d'instruction" in Paris or under the quasi-voluntary examination of an assistant district attorney or police inspector in New York. It is six of one and half a dozen of the other if at his trial in France he remains mute under examination or in America refrains from availing himself of the privilege of testifying in his own behalf. Thus, we are reluctantly forced to the conclusion that all human institutions have their limitations, and that, however theoretically perfect a government of laws may be, it must be administered by men whose chief regard will not be the idealization of a theory of liberty so much as an immediate solution of some concrete problem. Not that the matter, after all, is particularly important to most of us, but laws which exist only to be broken create a disrespect and disregard for law which may ultimately be dangerous. It would be perfectly simple for the legislature to say that a citizen might be arrested under circumstances tending to create a reasonable suspicion, even if he had not committed a crime, and it would be quite easy to pass a statute providing that the commissioner of police might "mug" and measure all criminals immediately after conviction. As it is, the prison authorities won't let him, so he has to do it while he has the opportunity. It must be admitted that this is rather hard on the innocent, but they now have to suffer with the guilty for the sins of an indolent and uninterested legislature. Moreover, if such a right of arrest were proposed, some wiseacre or politician would probably rise up and denounce the suggestion as the first step in the direction of a military dictatorship. Thus, we shall undoubtedly fare happily on in the blissful belief that our personal liberties are the subject of the most solicitous and zealous care on the part of the authorities, guaranteed to us under a government which is not of men but of laws, until one of us happens to be arrested (by mistake, of course) and learns by sad experience the practical methods of the police in dealing with criminals and the agreeable but deceptive character of the pleasant fiction of the presumption of innocence. CHAPTER II. Preparing a Criminal Case for Trial When the prosecuting attorney in a great criminal trial arises to open the case to the impanelled jury, very few, if any, of them have the slightest conception of the enormous expenditure of time, thought and labor which has gone into the preparation of the case and made possible his brief and easily delivered speech. For in this opening address of his there must be no flaw, since a single misstated or overstated fact may prejudice the jury against him and result in his defeat. Upon it also depends the jury's first impression of the case and of the prosecutor himself--no inconsiderable factor in the result. In a trial of importance its careful construction with due regard to what facts shall be omitted (in order to enhance their dramatic effect when ultimately proven) may well occupy the district attorney every evening for a week. But if the speech itself has involved study and travail, it is as nothing compared with the amount required by that most important feature of every criminal case--the selection of the jury. For a month before the trial, or whenever it may be that the jury has been drawn, every member upon the panel has been subjected to an unseen scrutiny. The prosecutor, through his own or through hired sleuths, has examined into the family history, the business standing and methods, the financial responsibility, the political and social affiliations, and the personal habits and "past performances" of each and every talesman. When at the beginning of the trial they, one by one, take the witness-chair (on what is called the voir dire) to subject themselves to an examination by both sides as to their fitness to serve as jurors in the case, the district attorney probably has close fit hand a rather detailed account of each, and perchance has great difficulty in restraining a smile. When some prospective juror, in his eagerness either to serve or to escape, deliberately equivocates in answer to an important question as to his personal history. "Are you acquainted with the accused or his family?" mildly inquires the assistant prosecutor. "No--not at all," the talesman may blandly reply. The answer, perhaps, is literally true, and yet the prosecutor may be pardoned for murmuring "Liar!" to himself as he sees that his memorandum concerning the juror's qualifications states that he belongs to the same "lodge" with the prisoner's uncle by marriage and carries an open account on his books with the defendant's father. "I think we will excuse Mr. Ananias," politely remarks the prosecutor; then in an undertone he turns to his chief and mutters: "The old rascal! He would have knifed us if we'd given him the chance!" And all this time the disgruntled Mr. Ananias is wondering why, if he didn't "know the defendant or his family," he was not accepted as a juror. Of course, every district attorney has, or should have, information as to each talesman's actual capabilities as a juror and something of a record as to how he has acted under fire. If he is a member of the "special" panel, it is easy to find out whether he has ever acquitted or convicted in any cause celebre, and if he has acquitted any plainly guilty defendant in the past it is not likely that his services will be required. If, however, he has convicted in such a case the district attorney may try to lure the other side into accepting him by making it appear that he himself is doubtful as to the juror's desirability. Sometimes persons accused of crime themselves, and actually under indictment, find their way onto the panels, and more than one ex-convict has appeared there in some inexplicable fashion. But to find them out may well require a double shift of men working day and night for a month before the case is called, and what may appear to be the most trivial fact thus discovered may in the end prove the decisive argument for or against accepting the juror. Panel after panel may be exhausted before a jury in a great murder trial has been selected, for each side in addition to its challenges for "cause" or "bias" has thirty* peremptory ones which it may exercise arbitrarily. If the writer's recollection is not at fault, the large original panel drawn in the first Molineux trial was used up and several others had to be drawn until eight hundred talesmen had been interrogated before the jury was finally selected. It is usual to examine at least fifty in the ordinary murder case before a jury is secured. * In the State of New York. It may seem to the reader that this scrutiny of talesmen is not strictly preparation for the trial, but, in fact, it is fully as important as getting ready the facts themselves; for a poor jury, either from ignorance or prejudice, will acquit on the same facts which will lead a sound jury to convict. A famous prosecutor used to say, "Get your jury--the case will take care of itself." But as the examination of the panel and the opening address come last in point of chronology it will be well to begin at the beginning and see what the labors of the prosecutor are in the initial stages of preparation. Let us take, for example, some notorious case, where an unfortunate victim has died from the effects of a poisoned pill or draught of medicine, or has been found dead in his room with a revolver bullet in his heart. Some time before the matter has come into the hands of the prosecutor, the press and the police have generally been doing more or less (usually less) effective work upon the case. The yellow journals have evolved some theory of who is the culprit and have loosed their respective reporters and "special criminologists" upon him. Each has its own idea and its own methods--often unscrupulous. And each has its own particular victim upon whom it intends to fasten the blame. Heaven save his reputation! Many an innocent man has been ruined for life through the efforts of a newspaper "to make a case," and, of course, the same thing, though happily in a lesser degree, is true of the police and of some prosecutors as well. In every great criminal case there are always four different and frequently antagonistic elements engaged in the work of detection and prosecution--first, the police; second, the district attorney; third, the press; and, lastly, the personal friends and family of the deceased or injured party. Each for its own ends--be it professional pride, personal glorification, hard cash, or revenge--is equally anxious to find the evidence and establish a case. Of course, the police are the first ones notified of the commission of a crime, but as it is now almost universally their duty to inform at once the coroner and also the district attorney thereof, a tripartite race for glory frequently results which adds nothing to the dignity of the administration of criminal justice. The coroner is at best no more than an appendix to the legal anatomy, and frequently he is a disease. The spectacle of a medical man of small learning and less English trying to preside over a court of first instance is enough to make the accused himself chuckle for joy. Not long ago the coroners of New York discovered that, owing to the fact that the district attorney or his representatives generally arrived first at the scene of any crime, there was nothing left for the "medicos" to do, for the district attorney would thereupon submit the matter at once to the grand jury instead of going through the formality of a hearing in the coroner's court. The legal medicine men felt aggrieved, and determined to be such early birds that no worm should escape them. Accordingly, the next time one of them was notified of a homicide he raced his horse down Madison Avenue at such speed that he collided with a trolley car and broke his leg. Another complained to the district attorney that the assistants of the latter, who had arrived at the scene of an asphyxiation before him, had bungled everything. "Ach, dose young men!" he exclaimed, wringing his hands--"Dose young men, dey come here and dey opened der vindow and let out der gas and all mine evidence esgaped." It is said that this interesting personage once instructed his jury to find that "the diseased came to his death from an ulster on the stomach." These anecdotes are, perhaps, what judges would call obiter dicta, yet the coroner's court has more than once been utilized as a field in the actual preparation of a criminal case. When Roland B. Molineux was first suspected of having caused the death of Mrs. Adams by sending the famous poisoned package of patent medicine to Harry Cornish through the mails, the assistant district attorney summoned him as a witness to the coroner's court and attempted to get from him in this way a statement which Molineux would otherwise have refused to make. When all the first hullabaloo is over and the accused is under arrest and safely locked up, it is usually found that the police have merely run down the obvious witnesses and made a prima facie case. All the finer work remains to be done either by the district attorney himself or by the detective bureau working under his immediate direction or in harmony with him. Little order has been observed in the securing of evidence. Every one is a fish who runs into the net of the police, and all is grist that comes to their mill. The district attorney sends for the officers who have worked upon the case and for the captain or inspector who has directed their efforts, takes all the papers and tabulates all their information. His practiced eye shows him at once that a large part is valueless, much is contradictory, and all needs careful elaboration. A winnowing process occurs then and there; and the officers probably receive a "special detail" from headquarters and thereafter take their orders from the prosecutor himself. The detective bureau is called in and arrangements made for the running down of particular clues. Then he will take off his coat, clear his desk, and get down to work. Of course, his first step is to get all the information he can as to the actual facts surrounding the crime itself. He immediately subpoenas all the witnesses, whether previously interrogated by the police or not, who know anything about the matter, and subjects them to a rigorous cross-examination. Then he sends for the police themselves and cross-examines them. If it appears that any witnesses have disappeared he instructs his detectives how and where to look for them. Often this becomes in the end the most important element in the preparation for the trial. Thus in the Nan Patterson case the search for and ultimate discovery of Mr. and Mrs. Morgan Smith (the sister and brother-in-law of the accused) was one of its most dramatic features. After they had been found it was necessary to indict and then to extradite them in order to secure their presence within the jurisdiction, and when all this had been accomplished it proved practically valueless. It frequently happens that an entire case will rest upon the testimony of a single witness whose absence from the jurisdiction would prevent the trial. An instance of such a case was that of Albert T. Patrick, for without the testimony of his alleged accomplice--the valet, Jones--he could not have been convicted of murder. The preservation of such a witness and his testimony thus becomes of paramount importance, and rascally witnesses sometimes enjoy considerable ease, if not luxury, at the expense of the public while waiting to testify. Often, too, a case of great interest will arise where the question of the guilt of the accused turns upon the evidence of some one person who, either from mercenary motives or because of "blood and affection," is unwilling to come to the fore and tell the truth. A striking case of this sort occurred some ten years ago. The "black sheep" of a prominent New York family forged the name of his sister to a draft for thirty thousand dollars. This sister, who was an elderly woman of the highest character and refinement, did not care to pocket the loss herself and declined to have the draft debited to her account at the bank. A lawsuit followed, in which the sister swore that the name signed to the draft was not in her handwriting. She won her case, but some officious person laid the matter before the district attorney. The forger was arrested and his sister was summoned before the grand jury. Here was a pleasant predicament. If she testified for the State her brother would undoubtedly go to prison for many years, to say nothing of the notoriety for the entire family which so sensational a case would occasion. She, therefore, slipped out of the city and sailed for Europe the night before she was to appear before the grand jury. Her brother was in due course indicted and held for trial in large bail, but there was and is no prospect of convicting him for his crime so long as his sister remains in the voluntary exile to which she has subjected herself. She can never return to New York to live unless something happens either to the indictment or her brother, neither of which events seems likely in the immediate future. Perhaps, if the case is one of shooting, the weapon has vanished. Its discovery may lead to the finding of the murderer. In one instance where a body was found in the woods with a bullet through the heart, there was nothing to indicate who had committed the crime. The only scintilla of evidence was an exploded cartridge--a small thing on which to build a case. But the district attorney had the hammer marks upon the cap magnified several hundred times and then set out to find the rifle which bore the hammer which had made them. Thousands of rifles all over the State were examined. At last in a remote lumber camp was found the weapon which had fired the fatal bullet. The owner was arrested, accused of the murder, and confessed his crime. In like manner, if it becomes necessary to determine where a typewritten document was prepared the letters may be magnified, and by examining the ribbons of suspected machines the desired fact may be ascertained. The magnifying glass still plays an important part in detecting crime, although usually in ways little suspected by the general public. On the other hand, where the weapon has not been spirited away the detectives may spend weeks in discovering when and where it was purchased. Every pawnshop, every store where a pistol could be bought, is investigated, and under proper circumstances the requisite evidence to show deliberation and premeditation may be secured. These investigations are naturally conducted at the very outset of the preparation of the case. The weapon, in seven trials out of ten, is the most important thing in it. By its means it can generally be demonstrated whether the shooting was accidental or intentional--and whether or not the killing was in self-defence. Where this last plea is interposed it is usually made at once upon the arrest, the accused explaining to the police that he fired only to save his own life. In such a situation, where the killing is admitted, practically the entire preparation will centre upon the most minute tests to determine whether or not the shot was fired as the accused claims that it was. The writer can recall at least a dozen cases in his own experience where the story of the defendant, that the revolver was discharged in a hand-to-hand struggle, was conclusively disproved by experimenting with the weapon before the trial. There was one homicide in which a bullet perforated a felt cap and penetrated the forehead of the deceased. The defendant asserted that he was within three feet of his victim when he fired, and that the other was about to strike him with a bludgeon. A quantity of felt, of weight similar to that of the cap, was procured and the revolver discharged at it from varying distances. A microscopic examination showed that certain discolorations around the bullet-hole (claimed by the defence to be burns made by the powder) were, in fact, grease marks, and that the shot must have been fired from a distance of about fifteen feet. The defendant was convicted on his own story, supplemented by the evidence of the witness who made the tests. The most obvious and first requirement is, as has been said, to find the direct witnesses to the facts surrounding the crime, commit their statements under oath to writing, so that they cannot later be denied or evaded, and make sure that these witnesses will not only hold no intercourse with the other side, but will be on hand when wanted. This last is not always an easy task, and various expedients often have to be resorted to, such as placing hostile witnesses under police surveillance, or in some cases in "houses of detention," and hiding others in out-of-the-way places, or supplying them with a bodyguard if violence is to be anticipated. When the proper time comes the favorable witnesses must be duly drilled or coached, which does not imply anything improper, but means merely that they must be instructed how to deliver their testimony, what answers are expected to certain questions, and what facts it is intended to elicit from them. Witnesses are often offended and run amuck because they are not given a chance upon the stand to tell the story of their lives. This must be guarded against and steps taken to have their statements given in such a way that they are audible and intelligible. A few lessons in elementary elocution are generally vitally necessary. The man with the bassoon voice must be tamed, and the birdlike old lady made to chirp more loudly. But all this is the self-evident preparation which must take place in every case, and while highly important is of far less interest than the development of the circumstantial evidence which is the next consideration of the district attorney. The discovery and proper proof of minute facts which tend to demonstrate the guilt of an accused are the joy of the natural prosecutor, and he may in his enthusiasm spend many thousands of dollars on what seems, and often is, an immaterial matter. Youthful officials intrusted with the preparation of important cases often become unduly excited and forget that the taxpayers are paying the bills. The writer remembers sitting beside one of these enthusiasts during a celebrated trial. A certain woman witness had incidentally testified to a remote meeting with the deceased at which a certain other woman was alleged to have been present. The matter did not seem of much interest or importance, but the youth in question seized a yellow pad and excitedly wrote in blue pencil, "Find Birdie" (the other lady) "at any cost!" This he handed to a detective, who hastened importantly away. It is to be hoped that "Birdie" was found speedily and in an inexpensive manner. When the case against Albert T. Patrick, later convicted of the murder of the aged William M. Rice, was in course of preparation, it was found desirable to show that Patrick had called up his accomplice on the telephone upon the night of the murder. Accordingly, the telephone company was compelled to examine several hundred thousand telephone slips to determine whether or not this had actually occurred. While the fact was established in the affirmative, the company now destroys its slips in order not to have to repeat the performance a second time. Likewise, in the preparation of the Molineux case it became important to demonstrate that the accused had sent a letter under an assumed name ordering certain remedies. As a result, one of the employees of the patent-medicine company spent several months going over their old mail orders and comparing them with a certain sample, until at last the letter was unearthed. Of course, the district attorney had to pay for it, and it was probably worth what it cost to the prosecution, although Molineux's conviction was reversed by the Court of Appeals and he was acquitted upon his second trial. The danger is, however, that a prosecutor who has an unlimited amount of money at his disposal may be led into expenditures which are hardly justified simply because he thinks they may help to secure a conviction. Nothing is easier than to waste money in this fashion, and public officials sometimes spend the county's money with considerably more freedom than they would their own under similar circumstances. The legitimate expenses connected with the preparation of every important case are naturally large. For example, diagrams must be prepared, photographs taken of the place of the crime, witnesses compensated for their time and their expenses paid, and, most important of all, competent experts must be engaged. This leads us to an interesting aspect of the modern jury trial. When no other defence to homicide is possible the claim of insanity is frequently interposed. Nothing is more confusing to the ordinary juryman than trying to determine the probative value of evidence touching unsoundness of mind, and the application thereto of the legal test of criminal responsibility. In point of fact, juries are hardly to be blamed for this, since the law itself is antiquated and the subject one abounding in difficulty. Unfortunately the opportunity for vague yet damaging testimony on the part of experts, the ease with which any desired opinion can be defended by a slight alteration in the hypothetical facts, and the practical impossibility of exposure, have been seized upon with avidity by a score or more of unscrupulous alienists who are prepared to sell their services to the highest bidder. These men are all the more dangerous because, clever students of mental disease and thorough masters of their subject as they are, they are able by adroit qualifications and skilful evasions to make half-truths seem as convincing as whole ones. They ask and receive large sums for their services, and their dishonest testimony must be met and refuted by the evidence of honest physicians, who, by virtue of their attainments, have a right to demand substantial fees. Even so, newspaper reports of the expense to the State of notorious trials are grossly exaggerated. The entire cost of the first Thaw trial to the County of New York was considerably less than twenty thousand dollars, and the second trial not more than half that amount. To the defence, however, it was a costly matter, as the recent schedules in bankruptcy of the defendant show. Therein it appears that one of his half-dozen counsel still claims as owing to him for his services on the first trial the modest sum of thirty-five thousand dollars. The cost of the whole defence was probably ten times that sum. Most of the money goes to the lawyers, and the experts take the remainder. It goes without saying that both prosecutor and attorney for the defence must be masters of the subject involved. A trial for poisoning means an exhaustive study not only of analytic chemistry, but of practical medicine on the part of all the lawyers in the case, while a plea of insanity requires that, for the time being, the district attorney shall become an alienist, familiar with every aspect of paranoia, dementia praecox, and all other forms of mania. He must also reduce his knowledge to concrete, workable form, and be able to defeat opposing experts on their own ground. But such knowledge comes only by prayer and fasting--or, perhaps, rather by months of hard and remorseless grind. The writer once prosecuted a druggist who had, by mistake, filled a prescription for a one-fourth-grain pill of calomel with a one-fourth-grain pill of morphine. The baby for whom the pill was intended died in consequence. The defence was that the prescription had been properly filled, but that the child was the victim of various diseases, from acute gastritis to cerebro-spinal meningitis. In preparation the writer was compelled to spend four hours every evening for a week with three specialists, and became temporarily a minor expert on children's diseases. To-day he is forced to admit that he would not know a case of acute gastritis from one of mumps. But the druggist was convicted. Yet it is not enough to prepare for the defence you believe the accused is going to interpose. A conscientious preparation means getting ready for any defence he may endeavor to put in. Just as the prudent general has an eye to every possible turn of the battle and has, if he can, re-enforcements on the march, so the prosecutor must be ready for anything, and readiest of all for the unexpected. He must not rest upon the belief that the other side will concede any fact, however clear it may seem. Some cases are lost simply because it never occurs to the district attorney that the accused will deny something which the State has twenty witnesses to prove. The twenty witnesses are, therefore, not summoned on the day of trial, the defendant does deny it, and as it is a case of word against word the accused gets the benefit of the doubt and, perhaps, is acquitted. No case is properly prepared unless there is in the court-room every witness who knows anything about any aspect of the case. No one can foretell when the unimportant will become the vital. Most cases turn on an unconsidered point. A prosecutor once lost what seemed to him the clearest sort of a case. When it was all over, and the defendant had passed out of the courtroom rejoicing, he turned to the foreman and asked the reason for the verdict. "Did you hear your chief witness say he was a carpenter?" inquired the foreman. "Why, certainly," answered the district attorney, "Did you hear me ask him what he paid for that ready-made pine door he claimed to be working on when he saw the assault?" The prosecutor recalled the incident and nodded. "Well, he said ten dollars--and I knew he was a liar. A door like that don't cost but four-fifty!" It is, perhaps, too much to require a knowledge of carpentry on the part of a lawyer trying an assault case. Yet the juror was undoubtedly right in his deduction. In a case where insanity is the defence, the State must dig up and have at hand every person it can find who knew the accused at any period of his career. He will probably claim that in his youth he was kicked in a game of foot-ball and fractured his skull, that later he fell into an elevator shaft and had concussion of the brain, or that he was hit on the head by a burglar. It is usually difficult, if not impossible, to disprove such assertions, but the prosecutor must be ready, if he can, to show that foot-ball was not invented until after the defendant had attained maturity, that it was some other man who fell down the elevator shaft, and to produce the burglar to deny that the assault occurred. Naturally, complete preparation for an important trial demands the presence of many witnesses who ultimately are not needed and who are never called. Probably in most such cases about half the witnesses do not testify at all. Most of what has been said relates to the preparation for trial of cases where the accused is already under arrest when the district attorney is called into the case. If this stage has not been reached the prosecutor may well be called upon to exercise some of the functions of a detective in the first instance. A few years ago it was brought to the attention of the New York authorities that many blackmailing letters were being received bearing the name of "Lewis Jarvis." These were of a character to render the apprehension of the writer of them a matter of much importance. The letters directed that the replies be sent to a certain box in the New York post-office, but as the boxes are numerous and close together it seemed doubtful if "Lewis Jarvis" could be detected when he called for his mail. The district attorney, the police, and the post-office officials finally evolved the scheme of plugging the lock of "Lewis Jarvis's" box with a match. The scheme worked, for "Jarvis," finding that he could not use his key, went to the delivery window and asked for his mail. The very instant the letters reached his hand the gyves were upon the wrists of one of the best-known attorneys in the city. When the district attorney has been apprised that a crime has been committed, and that a certain person is the guilty party, he not infrequently allows the suspect to go his way under the careful watch of detectives, and thus often secures much new evidence against him. In this way it is sometimes established that the accused has endeavored to bribe the witnesses and to induce them to leave the State, while the whereabouts of stolen loot is often discovered. In most instances, however, the district attorney begins where the police leave off, and he merely supplements their labors and prepares for the actual trial itself. But the press he has always with him, and from the first moment after the crime up to the execution of the sentence or the liberation of the accused, the reporters dog his footsteps, sit on his doorstep, and deluge him with advice and information. Now a curious feature about the evidence "worked up" by reporters for their papers is that little of it materializes when the prosecutor wishes to make use of it. Of course, some reporters do excellent detective work, and there are one or two veterans attached to the criminal courts in New York City who, in addition to their literary capacities, are natural-born sleuths, and combine with a knowledge of criminal law, almost as extensive as that of a regular prosecutor, a resourcefulness and nerve that often win the case for whichever side they espouse. I have frequently found that these men knew more about the cases which I was prosecuting than I did myself, and a tip from them has more than once turned defeat into victory. But newspaper men, for one reason or another, are loath to testify, and usually make but poor witnesses. They feel that their motives will be questioned, and are naturally unwilling to put themselves in an equivocal position. The writer well remembers that in the Mabel Parker case, where the defendant, a young and pretty woman, had boasted of her forgeries before a roomful of reporters, it was impossible, when her trial was called, to find more than one of them who would testify--and he had practically to be dragged to the witness chair. In point of fact, if reporters made a practice of being witnesses it would probably hurt their business. But, however much "faked" news may be published, a prosecutor who did not listen to all the hints the press boys had to give would make a great mistake; and as allies and advisers they are often invaluable, for they can tell him where and how to get evidence of which otherwise he would never hear. The week before a great case is called is a busy one for the prosecutor in charge. He is at his office early to interview his main witnesses and go over their testimony with them so that their regular daily work may not be interrupted more than shall be actually necessary. Some he cautions against being overenthusiastic and others he encourages to greater emphasis. The bashful "cop" is badgered until at last he ceases to begin his testimony in the cut-and-dried police fashion. "On the morning of the twenty-second of July, about 3.30 A.M., while on post at the corner of Desbrosses Street--," he starts. "Oh, quit that!" shouts the district attorney. "Tell me what you saw in your own words." The "cop" blushes and stammers: "Aw, well, on the morning of the twenty-second of July, about 3.30 A.M." "Look here!" yells the prosecutor, jumping to his feet and shaking his fist at him, "do you want to be taken for a d--n liar? 'Morning of the twenty-second of July, about 3.30 A.M., while on post I' You never talked like that in your life." By this time the "cop" is "mad clear through." "I'm no liar!" he retorts. "I saw the ------ pull his gun and shoot!" "Well, why didn't you say so?" laughs the prosecutor, and the officer mollified with a cigar, dimly perceives the objectionable feature of his testimony. About this time one of the sleuths comes in to report that certain much-desired witnesses have been "located" and are in custody downstairs. The assistant makes immediate preparation for taking their statements. Then one of the experts comes in for a chat about a new phase of the case occasioned by the discovery that the defendant actually did have spasms when an infant. The assistant wisely makes an appointment for the evening. A telegram arrives saying that a witness for the defence has just started for New York from Philadelphia and should be duly watched on arrival. The district attorney sends for the assistant to inquire if he has looked up the law on similar cases in Texas and Alabama--which he probably has not done; and a friend on the telephone informs him that Tomkins, who has been drawn on the jury, is a boon companion of the prisoner and was accustomed to play bridge with him every Sunday night before the murder. Coincidently, some private detectives enter with a long report on the various members of the panel, including the aforesaid Tomkins, whom they pronounce to be "all right," and as never having, to their knowledge, laid eyes on the accused. Finally, in despair, the prosecutor locks himself in his library with a copy of the Bible, "Bartlett's Familiar Quotations," and a volume of celebrated speeches, to prepare his summing up, for no careful trial lawyer opens a case without first having prepared, to some extent, at least, his closing address to the jury. He has thought about this for weeks and perhaps for months. In his dreams he has formulated syllogisms and delivered them to imaginary yet obstinate talesman. He has glanced through many volumes for similes and quotations of pertinency. He has tried various arguments on his friends until he knows just how, if he succeeds in proving certain facts and the defence expected is interposed, he is going to convince the twelve jurors that the defendant is guilty and, perhaps, win an everlasting reputation as an orator himself. This superficial sketch of how an important criminal case is got ready for trial would be incomplete without some further reference to something which has been briefly hinted at before--preparation upon its purely legal aspect. This may well demand almost as much labor as that required in amassing the evidence. Yet a careful and painstaking investigation of the law governing every aspect of the case is indispensable to success. The prosecutor with a perfectly clear case may see the defendant walk out of court a free man, simply because he has neglected to acquaint himself with the various points of law which may arise in the course of the trial, and the lawyer for an accused may find his client convicted upon a charge to which he has a perfectly good legal defence, for the same reason. Looking at it from the point of view of the prisoner's counsel, it is obvious that it is quite as efficacious to free your client on a point of law, without having the case go to the jury at all, as to secure an acquittal at their hands. At the conclusion of the evidence introduced in behalf of the State there is always a motion made to dismiss the case on the ground of alleged insufficiency in the proof. This has usually been made the subject of the most exhaustive study by the lawyers for the defence, and requires equal preparation on the part of the prosecutor. The writer recalls trying a bankrupt, charged with fraud, where the lawyer for the defendant had written a brief of some three hundred pages upon the points of law which he proposed to argue to the court upon his motion to acquit. But, unfortunately, his client pleaded guilty and the volume was never brought into play. But a mastery of the law, a thorough knowledge and control of the evidence, a careful preparation for the opening and closing addresses, and an intimate acquaintance with the panel from which the jury is to be drawn are by no means the only elements in the preparation for a great legal battle. One thing still remains, quite as important as the rest--the selection of the best time and the best court for the trial. "A good beginning" in a criminal case means a beginning before the right judge, the proper jury, and at a time when that vague but important influence known as public opinion augurs success. A clever criminal lawyer, be he prosecutor or lawyer for the defendant, knows that all the preparation in the world is of no account provided his case is to come before a stupid or biased judge, or a prejudiced or obstinate jury. Therefore, each side, in a legal battle of importance, studies, as well as it can, the character, connections, and cast of mind of the different judges who may be called upon to hear the case, and, like a jockey at the flag, tries to hurry or delay, as the case may be, until the judicial auspices appear most favorable. A lawyer who has a weak defence seeks to bring the case before a weak judge, or, if public clamor is loud against his client, makes use of every technical artifice to secure delay, by claiming that there are flaws in the indictment, or by moving for commissions to take testimony in distant points of the country. The opportunities for legal procrastination are so numerous that in a complicated case the defence may often delay matters for over a year. This may be an important factor in the final result. Yet even this is not enough, for, ultimately, it is the judge's charge to the jury which is going to guide their deliberations and, in large measure, determine their verdict. The lawyers for the defence, therefore, prepare long statements of what they either believe or pretend to believe to be the law. These statements embrace all the legal propositions, good or bad, favorable to their side of the case. If they can induce the judge to follow these so much the better for their client, for even if they are not law it makes no difference, since the State has no appeal from an acquittal in a criminal case, no matter how much the judge has erred. In the same way, but not in quite the same fashion, the district attorney prepares "requests to charge," but his desire for favorable instructions should be, and generally is, curbed by the consideration that if the judge makes any mistake in the law and the defendant is convicted he can appeal and upset the case. Of course, some prosecutors are so anxious to convict that they will wheedle or deceive a judge into giving charges which are not only most inimical to the prisoner, but so utterly unsound that a reversal is sure to follow; but when one of these professional bloodhounds is baying upon the trail all he thinks of is a conviction--that is all he wants, all the public will remember; to him will be the glory; and when the case is finally reversed he will probably be out of office. These "requests" cover pages, and touch upon every phase of law applicable or inapplicable to the case. Frequently they number as many as fifty, sometimes many more. It is "up to" the judge to decide "off the bat" which are right and which are wrong. If he guesses that the right one is wrong or the wrong one right the defendant gets a new trial. CHAPTER III. Sensationalism and Jury Trials For the past twenty-five years we have heard the cry upon all sides that the jury system is a failure, and to this general indictment is frequently added the specification that the trials in our higher courts of criminal justice are the scenes of grotesque buffoonery and merriment, where cynical juries recklessly disregard their oaths and where morbid crowds flock to satisfy the cravings of their imaginations for details of blood and sexuality. It is unnecessary to question the honesty of those who thus picture the administration of criminal justice in America. Indeed, thus it probably appears to them. But before such an arraignment of present conditions in a highly civilized and progressive nation is accepted as final, it is well to examine into its inherent probabilities and test it by what we know of the actual facts. In the first place, it should be remembered that the jury was instituted and designed to protect the English freeman from tyranny upon the part of the crown. Judges were, and sometimes still are, the creatures of a ruler or unduly subject to his influence. And that ruler neither was, nor is, always the head of the nation; but just as in the days of the Normans he might have been a powerful earl whose influence could make or unmake a judge, so to-day he may be none the less a ruler if he exists in the person of a political boss who has created the judge before whom his political enemy is to be tried. The writer has seen more than one judge openly striving to influence a jury to convict or to acquit a prisoner at the dictation of such a boss, who, not content to issue his commands from behind the arras, came to the courtroom and ascended the bench to see that they were obeyed. Usually the jury indignantly resented such interference and administered a well-merited rebuke by acting directly contrary to the clearly indicated wishes of the judge. But while admitting its theoretic value as a bulwark of liberty, the modern assailant of the jury brushes the consideration aside by asserting that the system has "broken down" and "degenerated into a farce." Let us now see how much of a farce it is. If four times out of five a judge rendered decisions that met with general approval, he would probably be accounted a highly satisfactory judge. Now, out of every one hundred indicted prisoners brought to the bar for trial, probably fifteen ought to be acquitted if prosecuted impartially and in accordance with the strict rules of evidence. In the year 1910 the juries of New York County convicted in sixty-six per cent of the cases before them. If we are to test fairly the efficiency of the system, we must deduct from the thirty-four acquittals remaining the fifteen acquittals which were justifiable. By so doing we shall find that in the year 1910 the New York County juries did the correct thing in about eighty-one cases out of every hundred. This is a high percentage of efficiency.* Is it likely that any judge would have done much better? * The following table gives the yearly percentages of convictions and acquittals by verdict in New York County since 1901: NUMBER NUMBER YEAR CONVICTIONS ACQUITTALS CONVICTIONS ACQUITTALS BY VERDICT BY VERDICT PER CENT PER CENT 1901........551...........344..........62............38 1902........419...........349..........55............45 1903........485...........307..........61............39 1904........495...........357..........58............42 1905........489...........299..........62............38 1906........464...........246..........65............35 1907........582...........264..........68............32 1908........649...........301..........62............38 1909........463...........235..........66............34 1910........649...........325..........66............34 After a rather long experience as a prosecutor, in which he conducted many hundreds of criminal cases, the writer believes that the ordinary New York City jury finds a correct general verdict four times out of five. As to talesmen in other localities he has no knowledge or reliable information. It seems hardly possible, however, that juries in other parts of the United States could be more heterogeneous or less intelligent than those before which he formed his conclusions. Of course, jury judgments are sometimes flagrantly wrong. But there are many verdicts popularly regarded as examples of lawlessness which, if examined calmly and solely from the point of view of the evidence, would be found to be the reasonable acts of honest and intelligent juries. For example, the acquittal of Thaw upon the ground of insanity is usually spoken of as an illustration of sentimentality on the part of jurymen, and of their willingness to be swayed by their emotions where a woman is involved. But few clearer cases of insanity have been established in a court of justice. The district attorney's own experts had pronounced the defendant a hopeless paranoiac; the prosecutor had, at a previous trial, openly declared the same to be his own opinion; and the evidence was convincing. At the time it was rendered, the verdict was accepted as a foregone conclusion. To-day the case is commonly cited as proof of the gullibility of juries and of the impossibility of convicting a rich man of a crime. There will always be some persons who think that every defendant should be convicted and feel aggrieved if he is turned out by the jury. Yet they entirely forget, in their displeasure at the acquittal of a man whom they instinctively "know" to be guilty, that the jury probably had exactly the same impression, but were obliged under their oaths to acquit because of an insufficiency of evidence. An excellent illustration of such a case is that of Nan Patterson. She is commonly supposed to have attended, upon the night of her acquittal, a banquet at which one of her lawyers toasted her as "the guilty girl who beat the case." Whether she was guilty or not, there is a general impression that she murdered Caesar Young. Yet the writer, who was present throughout the trial, felt at the conclusion of the case that there was a fairly reasonable doubt of her guilt. Even so, the jury disagreed, although the case is usually referred to as an acquittal and a monument to the sentimentality of juries. The acquittal of Roland B. Molineux is also recalled as a case where a man, previously proved guilty, managed to escape. The writer, who was then an assistant district attorney, made a careful study of the evidence at the time, and feels confident that the great majority of the legal profession would agree with him in the opinion that the Court of Appeals had no choice but to reverse the defendant's first conviction on account of the most prejudicial error committed at the trial, and that the jury who acquitted him upon the second occasion had equally no choice when the case was presented with a proper regard to the rules of evidence and procedure. Indeed, on the second trial the evidence pointed almost as convincingly toward another person as toward the defendant. I have mentioned the Patterson, Thaw, and Molineux trials because they are cases commonly referred to in support of the general contention that the jury system is a failure. But I am inclined to believe that any single judge, bench of judges, or board of commissioners would have reached the same result as the juries did in these instances. It is quite true that juries, for rather obvious reasons, are more apt to acquit in murder cases than in others. In the first place, save where the defendant obviously belongs to the vicious criminal class, a jury finds it somewhat difficult to believe, unless overwhelming motive be shown, that he could have deliberately taken another's life. Thus, with sound reason, they give great weight to the plea of self-defence which the accused urges upon them. He is generally the only witness. His story has to be disproved by circumstantial evidence, if indeed there be any. Frequently it stands alone as the only account of the homicide. Thus murder cases are almost always weaker than others, since the chief witness has been removed by death; while at the same time the nature of the punishment leads the jury unconsciously to require a higher degree of proof than in cases where the consequences are less abhorrent. All this is quite natural and inevitable. Moreover, homicide cases as a rule are better defended than others, a fact which undoubtedly affects the result. These considerations apply to all trials for homicide, notorious or otherwise, the results of which in New York County for ten years are set forth in the following table: YEAR CONVICTIONS ACQUITTALS CONVICTIONS ACQUITTALS PER CENT PER CENT 1901.........25............17..........60............40 1902.........31............11..........74............26 1903.........42.............8..........84............16 1904.........37............14..........72............28 1905.........32............13..........71............29 1906.........53............22..........70............30 1907.........39............10..........78............22 1908.........35............17..........67............33 1909.........43............11..........80............20 1910.........45............15..........75............25 TOTAL.......382...........138......Av. 74........Av. 27 A popular impression exists at the present time that a man convicted of murder has but to appeal his case on some technical ground in order to secure a reversal, and thus escape the consequences of his crime. How wide of the mark such a belief may be, at least so far as one locality is concerned, is shown by the fact that in New York State, from 1887 to 1907, there were 169 decisions by the Court of Appeals on appeals from convictions of murder in the first degree, out of which there were only twenty-nine reversals. Seven of these defendants were again immediately tried and convicted, and a second time appealed, upon which occasion only two were successful, while five had their convictions promptly affirmed. Thus, so far as the ultimate triumph of justice is concerned, out of 169 cases in that period the appellants finally succeeded in twenty-two only. Since 1902 there have been twenty-seven decisions rendered in first-degree murder cases by the Court of Appeals, with only three reversals.* (* Written in 1909.) The more important convictions throughout the State are affirmed with great regularity. As to the conduct of such cases, the writer's own experience is that a murder trial is the most solemn proceeding known to the law. He has prosecuted at least fifty men for murder, and convicted more than he cares to remember. Such trials are invariably dignified and deliberate so far as the conduct of the legal side of the case is concerned. No judge, however unqualified for the bench; no prosecutor, however light-minded; no lawyer however callous, fails to feel the serious nature of the transaction or to be affected strongly by the fact that he is dealing with life, and death. A prosecutor who openly laughed or sneered at a prisoner charged with murder would severely injure his cause. The jury, naturally, are overwhelmed with the gravity of the occasion and the responsibility resting upon them. In the Patterson, Thaw, and Molineux cases the evidence, unfortunately, dealt with unpleasant subjects and at times was revolting, but there was a quiet propriety in the way in which the witnesses were examined that rendered it as inoffensive as it could possibly be. Outside the court-room the vulgar crowd may have spat and sworn; and inside no doubt there were degenerate men and women who eagerly strained their ears to catch every item of depravity. But the throngs that filled the courtroom were quiet and well ordered, and the justified interested outnumbered the morbid. The writer deprecates the impulse which leads judges, from a feeling that justice should be publicly administered, to throw wide the doors of every courtroom, irrespective of the subject-matter of the trial. We need have no fear of Star Chamber proceedings in America, and no harm would be done by excluding from the courtroom all persons who have no business there. It is, of course, not unnatural that in the course of a trial occupying weeks or months the tension should occasionally be relieved by a gleam of humor. After one has been busy trying a case for a couple of weeks one goes to court and sets to work in much the same frame of mind in which one would attack any other business. But the fact that a small boy sometimes sees something funny at a funeral, or a bevy of giggling shop-girls may be sitting in the gallery at a fashionable wedding, argues little in respect to the solemnity or beauty of the service itself. What are the celebrated cases--the trials that attract the attention and interest of the public? In the first place, they are the very cases which contain those elements most likely to arouse the sympathy and prejudices of a jury--where a girl has taken the life of her supposed seducer, or a husband has avenged his wife's alleged dishonor. Such cases arouse the public imagination for the very reason that every man realizes that there are two sides to every genuine tragedy of this character--the legal and the natural. Thus, aside from any other consideration, they are the obvious instances where justice is most likely to go astray. In the next place, the defence is usually in the hands of counsel of adroitness and ability; for even if the prisoner has no money to pay his lawyer, the latter is willing to take the case for the advertising he will get out of it. Third, a trial which lasts for a long time naturally results in creating in the jury's mind an exaggerated idea of the prisoner's rights, namely, the presumption of innocence and the benefit of the reasonable doubt. For every time that the jury will hear these phrases once in a petty larceny or forgery case, they will hear them in a lengthy murder trial a hundred times. They see the defendant day after day, and the relation becomes more personal. Their responsibility seems greater toward him than toward the defendant in petty cases. Last, as previously suggested, murder cases are apt to be inherently weaker than others, and more often depend upon circumstantial evidence. The results of such cases are therefore an inadequate test of the efficiency of a jury system. They are, in fact, the precise cases where, if at all, the jury might be expected to go wrong. But juries would go astray far less frequently even in such trials were it not for that most vicious factor in the administration of criminal justice--the "yellow" journal. For the impression that public trials are the scenes of buffoonery and brutality is due to the manner in which these trials are exploited by the sensational papers. The instant that a sensational homicide occurs, the aim of the editors of these papers is--not to see that a swift and sure retribution is visited upon the guilty, or that a prompt and unqualified vindication is accorded to the innocent, but, on the contrary, so to handle the matter that as many highly colored "stories" as possible can be run about it. Thus, where the case is perfectly clear against the prisoner, the "yellow" press seeks to bolster up the defence and really to justify the killing by a thinly disguised appeal to the readers' passions. Not infrequently, while the editorial page is mourning the prevalence of homicide, the front columns are bristling with sensational accounts of the home-coming of the injured husband, the heartbreaking confession of the weak and erring wife, and the sneering nonchalance of the seducer, until a public sentiment is created which, if it outwardly deprecates the invocation of the unwritten law, secretly avows that it would have done the same thing in the prisoner's place. This antecedent public sentiment is fostered from day to day until it has unconsciously permeated every corner of the community. The juryman will swear that he is unaffected by what he has read, but unknown to himself there are already tiny furrows in his brain along which the appeal of the defence will run. In view of this deliberate perversion of truth and morals, the euphemisms of a hard-put defendant's counsel when he pictures a chorus girl as an angel and a coarse bounder as a St. George seem innocent indeed. It is not within the rail of the courtroom but within the pages of these sensational journals that justice is made a farce. The phrase "contempt of court" has ceased practically to have any significance whatever. The front pages teem with caricatures of the judge upon the bench, of the individual jurors with exaggerated heads upon impossible bodies, of the lawyers ranting and bellowing, juxtaposed with sketches of the defendant praying beside his prison cot or firing the fatal shot in obedience to a message borne by an angel from on high. How long would the "unwritten law" play any part in the administration of criminal justice if every paper in the land united in demanding, not only in its editorials, but upon its front pages, that private vengeance must cease? Let the "yellow" newspapers confine themselves simply to an accurate report of the evidence at the trial, with a reiterated insistence that the law must take its course. Let them stop pandering to those morbid tastes which they have themselves created. Let the "Sympathy Sisters," the photographer, and the special artist be excluded from the court-room. When these things are done, we shall have the same high standard of efficiency upon the part of the jury in great murder trials that we have in other cases. CHAPTER IV. Why Do Men Kill? When a shrewd but genial editor called me up on the telephone and asked me how I should like to write an article on the above lurid title, I laughed in his--I mean the telephone's face. "My dear fellow!" I said (I should only have the nerve to call him that over a wire). "It would ruin me! How could I keep my self-respect and write that kind of sensational stuff--Why do men kill? Why do men eat? Why do men drink? Why do men love? Why do men--" "Look here!" he interrupted. "I want to know why one man kills another man. If we knew why, maybe we could stop it, couldn't we? We could try to, anyhow. And you know something about it. You've prosecuted nearly a hundred men for murder. Get the facts--that's what I want. Cut the adjectives and morality, and get down to the reasons. Anything particularly undignified about that?" And he rang off. I arose and walked over to the bookcase on which reposed several shelves of "minutes" of criminal trials. They were dusty and depressing. Practically every one of them was a memento of some poor devil gone to prison or to the chair. Where were they now--and why did they kill--yes, why DID they? I glanced along the red-labeled backs. "People versus Candido." Now why did HE kill? I remembered the Italian perfectly. He killed his friend because the latter had been too attentive to his wife. "People versus Higgins." Why did he? That was a drunken row on a New Year's Eve within the sound of Trinity chimes. "People versus Sterling Greene." Yes, he was a colored man--I recalled the evidence--drink and a "yellow gal." "People versus Mock Duck"-a Chinese feud between the On Leong Tong and the Hip Sing Tong--a vendetta, first one Chink shot and then another, turn and turn about, running back through Mott Street, New York, Boston, San Francisco, until the origin of the quarrel was lost in the dim Celestial mists across the sea. Out of the first four cases the following motives: Jealousy--1. Drink--1. Drink and jealousy--1. Scattering (how can you term a "Tong" row?)--1. I began to get interested. Supposing I dug out all the homicide cases I had ever tried, what would the result show as to motive for the killing? Would drink and women account for seventy-five per cent? Mentally I ran my eye back over nearly ten years. What OTHER motives had the defendants at the bar had? There was Laudiero--an Italian "Camorrista"--he had killed simply for the distinction it gave him among his countrymen and the satisfaction he felt at being known as a "bad" man--a "capo maestra." There was Joseph Ferrone--pure jealousy again. Hendry--animal hate intensified by drink. Yoscow--a deliberate murder, planned in advance by several of a gang, to get rid of a young bully who had made himself generally unpleasant. There was Childs, who had killed, as he claimed, in self-defence because he was set upon and assaulted by rival runners from another seaman's boarding house. Really it began to look as if men killed for a lot of reasons. One consideration at once suggested itself. How about the killings where the murderer is never caught? The prisoners tried for murder are only a mere fraction of those who commit murder. True, and the more deliberate the murder, the greater, unfortunately, the chance of the villain getting away. Still, in cases merely of suspected murder, or in cases where no evidence is taken, it would be manifestly unfair arbitrarily to assign motives for the deed, if deed it was. No, one must start with the assumption, sufficiently accurate under all the circumstances, that the killings in which the killer is caught are fairly representative of killings as a whole. All crimes naturally tend to divide themselves into two classes--crimes against property and crimes against the person, each class having an entirely different assortment of reasons for their commission. There can be practically but one motive for theft, burglary, or robbery. It is, of course, conceivable that such crimes might be perpetrated for revenge--to deprive the victim of some highly prized possession. But in the main there is only one object--unlawful gain. So, too, blackmail, extortion, and kidnapping are all the products of the desire for "easy money." But, unquestionably, this is the reason for murder in comparatively few cases. The usual motive for crimes against the person--assault, manslaughter, mayhem, murder, etc.--is the desire to punish, or be avenged upon another by inflicting personal pain upon him or by depriving him of his most valuable asset--life. And this desire for retaliation or revenge generally grows out of a recent humiliation received at the hands of the other person, a real or fancied wrong to oneself, a member of one's family, or one's property. But this was too easy an answer to my friend's question. He wanted and deserved more than that, and I set out to give it to him. My first inquiry was in the direction of original sources. I sought out the man in the district attorney's office who had had the widest general experience and put the question to him. This was Mr. Charles C. Nott, Jr., (now judge of the General Sessions) who had been trying murder cases for nearly ten years. It so happened that he had kept a complete record of all of them and this he courteously placed at my disposal. The list contains sixty-two cases, and the defendants were of divers races. These homicides included seventeen committed in cold blood (about twenty-five per cent, an extraordinary percentage) from varying motives, as follows: One defendant (white) murdered his colored mistress simply to get rid of her; another killed out of revenge because the deceased had "licked" him several times before; another, having quarrelled with his friend over a glass of soda water, later on returned and precipitated a quarrel by striking him, in the course of which he killed him; another because the deceased had induced his wife to desert him; another lay in wait for his victim and killed him without the motive ever being ascertained; one man killed his brother to get a sum of money, and another because his brother would not give him money; another because he believed the deceased had betrayed the Armenian cause to the Turks; another because he wished to get the deceased out of the way in order to marry his wife; and another because deceased had knocked him down the day before. One man had killed a girl who had ridiculed him; and one a girl who had refused to marry him; another had killed his daughter because she could no longer live in the house with him; one, an informer, had been the victim of a Black Hand vendetta; and the last had poisoned his wife for the insurance money in order to go off with another woman. There were two cases of infanticide, one in which a woman threw her baby into the lake in Central Park, and another in which she gave her baby poison. Besides these murders, five homicides had been committed in the course of perpetrating other crimes, including burglary and robbery. Passing over three cases of culpable negligence resulting in death, we come to thirty-seven homicides during quarrels, some of which might have been technically classified as murders, but which being committed "in the heat of passion," in practically every instance resulted in a verdict of manslaughter. The quarrels often arose over the most trifling matters. One was a dispute over a broom, another over a horse blanket, another over food, another over a twenty-five cent bet in a pool game, another over a loan of fifty cents, another over ten cents in a crap game, and still another over one dollar and thirty cents in a crap game. Five men were killed in drunken rows which had no immediate cause except the desire to "start something." One man killed another because he had not prevented the theft of some lumber, one (a policeman) because the deceased would not "move on" when ordered, one because a bartender refused to serve him with any more drinks, and one (a bartender) because the deceased insisted that he should serve more drinks. One man was killed in a quarrel over politics, one in a fuss over some beer, one in a card game, one trying to rob a fruit-stand, one in a dispute with a ship's officer, one in a dance hall row. One man killed another whom he found with his wife, and one wife killed her husband for a similar cause; another wife killed her husband simply because she "could not stand him," and one because he was fighting with their son. One man was killed by another who was trying to collect from him a debt of six hundred dollars. One quarrel resulting in homicide arose because the defendant had pointed out deceased to the police, another because the participants called each other names, and another arose out of an alleged seduction. Three homicides grew out of street rows originating in various ways. One man killed another who was fighting with a friend of the first, a janitor was killed in a "continuous row" which had been going on for a long time, and one homicide was committed for "nothing in particular." This astonishing olla podrida of reasons for depriving men of their lives leaves one stunned and confused. Is it possible to deduce any order out of such homicidal chaos? Still, an attempt to classify such diverse causes enables one to reach certain general conclusions. Out of the sixty-two homicides there were seventeen cold-blooded murders, with deliberation and premeditation (in such cases the reasons for the killing are by comparison unimportant); three homicides due to negligence, five committed while perpetrating a felony; thirty-seven manslaughters, due in sixteen cases to quarrels (simply), thirteen to drink, four to disputes over money, three to women, one to race antagonism. Reclassifying the seventeen murders according to causes, we have: Six due to women, four to quarrels, five to other causes, and two infanticides. Added to the manslaughters previously classified, we have a total of sixty-two killings, due in twenty cases to quarrels, thirteen to drink, nine to women, four to disputes over money, one to race antagonism, five to general causes, three to negligence, two infanticides, five during the commission of other crimes. The significant features of this analysis are that about seventy-five per cent of the killings were due to quarrels over small sums or other matters, drink and women; over fifty per cent to drink and petty quarrels; and about thirty per cent to quarrels simply. The trifling character of the causes of the quarrels themselves is shown by the fact that in three of these particular cases, tried in a single week, the total amount involved in the disputes was only eighty-five cents. That is about twenty-eight and one-half cents a life. Many a murder in a barroom grows out of an argument over whether a glass of beer has, or has not, been paid for, or whose turn it is to treat; and more than one man has been killed in New York City because he was too clumsy to avoid stepping on somebody's feet or bumping into another man on the sidewalk. The writer sincerely regrets that his own lack of initiative prevented his keeping a diary during his seven years's service as a prosecutor. It is now impossible for him to refresh his memory as to the causes of all the various homicides which he prosecuted, but where he can do so the evidence points to a conclusion similar to that deduced from Mr. Nott's record. The proximate causes were trifling--the underlying cause was the lack of civilization of the defendant--his brutality and absence of self-control. With a view to ascertaining conditions in general throughout the United States, I asked a clipping agency to send me the first one hundred notices of actual homicides which should come under its scissors. The immediate result of this experiment was that I received forty-five notices supposedly relating to murders and homicides, which on closer examination proved to be anything but what I wanted for the purpose in view. With only one or two exceptions they related not to deaths from violence reported as having occurred on any particular day, but to notices of convictions, acquittals, indictments, pleas of guilty and not guilty, rewards offered, sentences, executions, "suspicions" of the police, "mysteries revived," and even editorials on capital punishment. A letter of protest brought in due course, but much more slowly, one hundred and seven clippings, which yielded the following reasons why men killed: There were four suicides, three lynchings, one infanticide, three murders while resisting arrest, three criminals killed while resisting arrest, two men killed in riots, eight murders in the course of committing burglaries and robberies, seven persons killed in vendettas, three grace murders, and twenty-four killed in quarrels over petty causes; there were twelve murders from jealousy, followed in four instances by suicide on the part of the murderer; six killings justifiable on the "higher law" theory only, but involving great provocation, and thirty deliberate slaughters. The last clipping recounted how an irate husband pounded a "masher" so hard that he died. Leaving out the suicides and those killed while resisting arrest, there remain one hundred persons murdered, not only by persons insane or wild from the effects of liquor, but by robbers and burglars, brutes, bullies, and thugs, husbands, wives, and lovers, and by a vast number of people who not only destroyed their enemies in the fury of anger, but in many instances openly went out gunning for them, lay in wait for them in the dark, or hacked off their heads with hatchets while they slept. It is, indeed, a sanguinary record, from which little consolation is to be derived, and the only comfort is the probability that the accounts of the first one hundred murders anywhere in Europe would undoubtedly be just as blood-curdling. I had simply asked the clipping bureau to send me one hundred horrors and I had got them. They did not indicate anything at all so far as the ratio of homicide to population was concerned or as to the bloodthirstiness of Americans in general. They merely showed what despicable things murders were. As to the reasons for the killings, they were as diverse as those which Mr. Nott had prosecuted, save that there were more of an ultra blood-thirsty character, due probably to the fact that the young lady who did the clipping wanted (after one rebuff) to make sure that I was satisfied with the goods she sent me. And this suggests a reason for the large percentage of cold-blooded killings prosecuted by my friend--namely, that Mr. Nott being the most astute prosecutor available, the district attorney, whenever the latter had a particularly atrocious case, sent it to him in order that the defendant might surely get his full deserts. The reasons for these homicides were of every sort; police officers and citizens were shot and killed by criminals trying to make "get-aways," and by negroes and others "running amuck"; despondent young men shot their unresponsive sweethearts and then either blew out their own brains of pretended to try to do so; two stable-men had a duel with revolvers, and each killed the other; several men were shot for being too attentive to young women residing in the same hotels; an Italian, whose wife had left him and gone to her mother, went to the house and killed her, her sister, her sister's husband, his mother-in-law, two children, and finally himself; the "Gopher Gang" started a riot at a "benefit" dance given to a widow and killed a man, after which they fled to the woods and fired from cover upon the police until eighteen were overpowered and arrested; a young girl and her fiance, sitting in the parlor, planning their honeymoon, were unexpectedly interrupted by a rejected suitor of the girl's, who shot and killed both of them; an Italian who peeked into a bedroom, just for fun, afterward rushed in and cut off two persons' heads with an ax--one of them was his wife; a gang of white ruffians shot and then burned a negro family of three peacefully working in the fields; a man who went to the front door to see who had tapped on his window was shot through the heart; a striker was killed by a twenty-five-pound piece of flagging thrown from a roof; there was a gun fight of colored men at Madison, Wisconsin, at which three were shot; a gang of negro ruffians killed and mutilated a white woman (with a baby in her arms) and her husband; masked robbers called a man to his barn at Winston-Salem, North Carolina, and cut his throat; an Italian was found with his head split in two by a butcher's cleaver; a negress in Lafayette, Louisiana, killed a family of six with a hatchet; a negro farmer and his two daughters were lynched and their bodies burned by four white men (who will probably also be lynched if caught); a girl of eleven shot her girl friend of about the same age and killed her; several persons were found stabbed to death; a plumber killed his brother (also a plumber) for saying that he stole two dollars; a murderer was shot by a posse of militia in a cornfield; a card game at Bayonne, New Jersey, resulted in a revolver fight on the street in which one of the players was killed; bank robbers killed a cashier at twelve o'clock noon; a jealous lover in Butte, Montana, shot and killed his sweetheart, her father, and mother; a deputy sheriff was murdered; burglars killed several persons in the course of their business; Kokolosski, a Pole, kicked his child to death; and a couple of dozen people were incidentally shot, stabbed, or otherwise disposed of in the course of quarrels over the most trivial matters. In almost no case was there what an intelligent, civilized man would regard as an adequate reason for the homicide. They killed because they felt like killing, and yielded to the impulse, whatever its immediate origin. This conclusion is abundantly supported by the figures of the 'Chicago Tribune' for the seven years ending in 1900, when carefully analyzed. During this period 62,812 homicides were recorded. Of these there were 17,120 of which the causes were unknown and 3,204 committed while making a justifiable arrest, in self-defence, or by the insane, so that there were in fact only 42,488 felonious homicides the causes of which can be definitely alleged. The ratio of the "quarrels" to this net total is about seventy-five per cent. There were, in addition, 2,848 homicides due to liquor--that is, without cause. Thus eighty per cent of all the murders and manslaughters in the United States for a period of seven years were for no reason at all or from mere anger or habit, arising out of causes often of the most trifling character. Nor are the conclusions changed by the figures of the years between 1904 and 1909. During this period 61,786 homicides were recorded. Of these there were 9,302 of which the causes were not known, and 2,480 committed while making a justifiable arrest, in self-defence, or by the insane, leaving 50,004 cases of felonious homicides of known causes. Of these homicides, 33,476 were due to quarrels and 4,799 to liquor, a total of 38,275 out of the 50,004 cases of known causes being traceable in this, another seven years, to motives the most casual. It would be stupid to allege that the reason men killed was because they had been stepped on or had been deprived of a glass of beer. The cause lies deeper than that. It rests in the willingness or desire of the murderer to kill at all. Among barbaric or savage peoples this is natural; but among civilized nations it is hardly to be anticipated. If the negro who shoots his fellow because he believes himself to have been cheated out of ten cents were really civilized, he would either not have the impulse to kill or, having the impulse to kill, would have sufficient power of self-control to refrain from doing so. This power of self-control may be natural or acquired, and it may or may not be possessed by the man who feels a desire to commit a homicide. The fact to be observed--the interesting and, broadly speaking, the astonishing fact--is that among a people like ourselves anybody should have a desire to kill. It is even more astonishing than that the impulse should be yielded to so often if it comes. This, then, is the real reason why men kill--because it is inherent in their state of mind, it is part of their mental and physical make-up--they are ready to kill, they want to kill, they are the kind of men who do kill. This is the result of their heredity, environment, educational and religious training, or the absence of it. How many readers of this paper have ever experienced an actual desire to kill another human being? Probably not one hundredth of one per cent. They belong to the class of people who either never have such an impulse, or at any rate have been taught to keep such impulses under control. Hence it is futile to try to explain that some men kill for a trifling sum of money, some because they feel insulted, others because of political or labor disputes, or because they do not like their food. Any one of these may be the match that sets off the gunpowder, but the real cause of the killing is the fact that the gunpowder is there, lying around loose, and ready to be touched off. What engenders this gunpowder state of mind would make a valuable sociological study, but it may well be that a seemingly inconsequential fact may so embitter a boy or man toward life or the human race in general that in time he "sees red" and goes through the world looking for trouble. Any cause that makes for crime and depravity makes for murder as well. The little boy who is driven out of the tenement onto the street, and in turn off the street by a policeman, until, finding no wholesome place to play, he joins a "gang" and begins an incipient career of crime, may end in the "death house." The table on the opposite page gives the figures collected by the 'Chicago Tribune' for the years from 1881 to 1910. In view of the foregoing it may seem paradoxical for the writer to state that he questions the alleged unusual tendency to commit murder on the part of citizens of the United States. Yet of one fact he is absolutely convinced--namely, that homicide has substantially decreased in the last fifteen years. Even according to the figures collected by the 'Chicago Tribune', there were but 8,975 homicides in 1910 as compared with 10,500 in 1895, and 10,652 in 1896. Meantime the population of our country has been leaping onward. NUMBER OF MURDERS AND HOMICIDES IN THE UNITED STATES EACH YEAR SINCE 1891, COMPARED WITH THE POPULATION NUMBER OF NUMBER OF MURDERS AND ESTIMATED MURDERS AND YEAR HOMICIDES IN POPULATION HOMICIDES THE UNITED OF THE FOR EACH STATES UNITED STATES MILLION OF PEOPLE 1881......1,266..........51,316,000..........24.7 1882......1.467..........----------..........27.9 1883......1,697..........----------..........31.6 1884......1,465..........----------..........26.7 1885......1,808..........56,148,000..........32.2 1886......1,499..........----------..........26.1 1887......2,335..........----------..........39.8 1888......2,184..........---------...........36.4 1889......3,567..........---------...........58.0 1890......4,290.........62,622,250...........68.5 1891......5,906..........---------...........92.4 1892......6,791..........---------..........104.2 1893......6,615..........---------..........99.5 1894......9,800..........---------.........144.7 1895.....10,500.........69,043,000.........152.2 1896.....10,652..........---------.........151.3 1897......9,520..........---------.........132.8 1898......7,840..........---------.........107.2 1899......6,225..........---------..........83.6 1900......8,275.........75,994,575.........108.7 1901......7,852.........77,754,000.........100.9 1902......8,834.........79,117,000.........111.7 1903......8,976..........---------.........112.0 1904......8,482..........---------............... 1905......9,212..........---------............... 1906......9,350.........---------................ 1907......8,712..........---------............... 1908......8,952..........---------............... 1909......8,103..........---------............... 1910......8,975.........91,972,266...........97.5 Total......191,150 We are blood-thirsty enough, God knows, without making things out any worse than they are. Our murder rate per 100,000 unquestionably exceeds that of most of the countries of western Europe, but, as the saying is, "there's a reason." If our homicide statistics related only to the white population of even the second generation born in this country we should find, I am convinced, that we are no more homicidal than France and Belgium, and less so than Italy. It is to be expected that with our Chinese, "greaser," and half-breed population in the West, our Black Belt in the South, and our Sicilian and South Italian immigration in the North and East, our murder rate should exceed those of the continental nations, which are nothing if not well policed. But of one thing we can be abundantly certain without any figures at all, and that is that our present method of administering justice (less the actions of juries than of judges)--the system taken as a whole--offers no deterrent to the embryonic or professional criminal. The administration of justice to-day is not the swift judgment of honest men upon a criminal act, but a clever game between judge and lawyer, in which the action of the jury is discounted entirely and the moves are made with a view to checkmating justice, not in the trial courtroom, but before the appellate tribunal two or three years later. "My young feller," said a grizzled veteran of the criminal bar to me long years ago, after our jury had gone out, "there's lots of things in this game you ain't got on to yet. Do you think I care what this jury does? Not one mite. I got a nice little error into the case the very first day--and I've set back ever since. S'pose we are convicted? I'll get Jim here [the prisoner] out on a certificate and it'll be two years before the Court of Appeals will get around to the case. Meantime Jim'll be out makin' money to pay me my fee--won't you, Jim? Then your witnesses, will be gone, and nobody'll remember what on earth it's all about. You'll be down in Wall Street practicing real law yourself, and the indictment will kick around the office for a year or so, all covered with dust, and then some day I'll get a friend of mine to come in quietly and move to dismiss. And it'll be dismissed. Don't you worry! Why, a thousand other murders will have been committed in this county by the time that happens. Bless your soul! You can't go on tryin' the same man forever! Give the other fellers a chance. You shake your head? Well, it's a fact. I've been doin' it for forty years. You'll see." And I did. That may not be why men kill, but perhaps indirectly it may have something to do with it. CHAPTER V. Detectives and Others A Detective, according to the dictionaries, is one "whose occupation it is to discover matters as to which information is desired, particularly wrong-doers, and to obtain evidence to be used against them." A private detective, by the same authority, is one "engaged unofficially in obtaining secret information for or guarding the private interests of those who employ him." The definition emphasizes the official character of detectives in general as contrasted with those whose services may be enlisted for hire by the individual citizen, but the distinction is of little importance, since it is based arbitrarily upon the character of the employer (whether the State or a private client) instead of upon the nature of the employment itself, which is the only thing which is likely to interest us about detectives at all. The sanctified tradition that a detective was an agile person with a variety of side-whiskers no longer obtains even in light literature, and the most imaginative of us is frankly aware of the fact that a detective is just a common man earning (or pretending to earn) a common living by common and obvious means. Yet in spite of ourselves we are accustomed to attribute superhuman acuteness and a lightning-like rapidity of intellect to this vague and romantic class of fellow-citizens. The ordinary work of a detective, however, requires neither of these qualities. Honesty and obedience are his chief requirements, and if he have intelligence as well, so much the better, provided it be of the variety known as "horse" sense. A genuine candidate for the job of Sherlock Holmes would find little competition. In the first place, the usual work of a detective does not demand any extraordinary powers of deduction at all. Leaving out of consideration those who are merely private policemen (often in uniform), and principally engaged in patrolling residential streets, preserving order at fairs, race-tracks, and political meetings, or in breaking strikes and preventing riots, the largest part of the work for which detectives are employed is not in the detection of crime and criminals, but in simply watching people, following them, and reporting as accurately as possible their movements. These functions are known in the vernacular as spotting, locating, and trailing. It requires patience, some powers of observation, and occasionally a little ingenuity. The real detective under such circumstances is the man to whom they hand in their reports. Yet much of the most dramatic and valuable work that is done involves no acuteness at all, but simply a willingness to act as a spy and to brave the dangers of being found out. There is nothing more thrilling in the pages of modern history than the story of the man (James McPartland) who uncovered the conspiracies of the Molly McGuires. But the work of this man was that of a spy pure and simple. Another highly specialized class of detectives is that engaged in police and banking work, who by experience (or even origin) have a wide and intimate acquaintance with criminals of various sorts, and by their familiarity with the latters' whereabouts, associates, work, and methods are able to recognize and run down the perpetrators of particular crimes. Thus, for example, there are men in the detective bureau of New York City who know by name, and perhaps have a speaking acquaintance with, a large number of the pick-pockets and burglars of the East Side. They know their haunts and their ties of friendship or marriage. When any particular job is pulled off they have a pretty shrewd idea of who is responsible for it and lay their plans accordingly. If necessary, they run in the whole gang and put each of them through a course of interrogation, accusation, and browbeating until some one breaks down or makes a slip that involves him in a tangle. These men are special policemen whose knowledge makes them detectives by courtesy. But their work does not involve any particular superiority or quickness of intellect--the quality which we are wont to associate with the detection of crime. Now, if the ordinary householder finds that his wife's necklace has mysteriously disappeared, his first impulse is to send for a detective of some sort or other. In general, he might just as well send for his mother-in-law. Of course, the police can and will watch the pawnshops for the missing baubles, but no crook who is not a fool is going to pawn a whole necklace on the Bowery the very next day after it has been "lifted." Or he can enlist a private detective who will question the servants and perhaps go through their trunks, if they will let him. Either sort will probably line up the inmates of the house for general scrutiny and try to bully them separately into a confession. This may save the master a disagreeable experience, but it is the simplest sort of police work and is done vicariously for the taxpayer, just as the public garbage man relieves you from the burden of taking out the ashes yourself, because he is paid for it, not on account of your own incapacity or his superiority. The real detective is the one who, taking up the solution of a crime or other mystery, brings to bear upon it unusual powers of observation and deduction and an exceptional resourcefulness in acting upon his conclusions. Frankly, I have known very few such, although for some ten years I have made use of a large number of so-called detectives in both public and private matters. As I recall the long line of cases where these men have rendered service of great value, almost every one resolves itself into a successful piece of mere spying or trailing. Little ingenuity or powers of reason were required. Of course, there are a thousand tricks that an experienced man acquires as a matter of course, but which at first sight seem almost like inspiration. I shall not forget my delight when Jesse Blocher, who had been trailing Charles Foster Dodge through the South (when the latter was wanted as the chief witness against Abe Hummel on the charge of subornation of perjury of which he was finally convicted), told me how he instantly located his man, without disclosing his own identity, by unostentatiously leaving a note addressed to Dodge in a bright-red envelope upon the office counter of the Hotel St. Charles in New Orleans, where he knew his quarry to be staying. A few moments later the clerk saw it, picked it up, and, as a matter of course, thrust it promptly into box No. 420, thus involuntarily hanging, as it were, a red lantern on Dodge's door. There is no more reason to look for superiority of intelligence or mental alertness among detectives of the ordinary class than there is to expect it from clerks, stationary engineers, plumbers, or firemen. While comparisons are invidious, I should be inclined to say that the ordinary chauffeur was probably a brighter man than the average detective. This is not to be taken in derogation of the latter, but as a compliment to the former. There are a great many detectives of ambiguous training. I remember in one case discovering that of the more important detectives employed by a well-known private Anti-Criminal Society in New York, one had been a street vender of frankfurters (otherwise yclept "hot dogs"), and another the keeper of a bird store, which last perhaps qualified him for the pursuit and capture of human game. There is a popular fiction that lawyers are shrewd and capable, similar to the prevailing one that detectives are astute and cunning. But, as the head of one of the biggest agencies in the country remarked to me the other day, when discussing the desirability of retaining local counsel in a distant city: "You know how hard it is to find a lawyer that isn't a dead one." I feel confident that he did not mean this in the sense that there was no good lawyer except a dead lawyer. What my detective friend probably had in mind was that it was difficult to find a lawyer who brought to bear on a new problem any originality of thought or action. It is even harder to find a detective who is not in this sense a dead one. I have the feeling, being a lawyer myself, that it is harder to find a live detective than a live lawyer. There are a few of both, however, if you know where to look for them. But it is easy to fall into the hands of the Philistines. The fundamental reason why it is so hard to form any just opinion of detectives in general is that (except by their fruits) there is little opportunity to discriminate between the able and the incapable. Now, the more difficult and complicated his task the less likely is the sleuth (honest or otherwise) to succeed. The chances are a good deal more than even that he will never solve the mystery for which he is engaged. Thus at the end of three months you will have only his reports and his bill--which are poor comfort, to say the least. And yet he may have really worked eighteen hours a day in your service. But a dishonest detective has only to disappear (and take his ease for the same period) and send you his reports and his bill--and you will have only his word for how much work he has done and how much money he has spent. You are absolutely in his power--unless you hire another detective to watch HIM. Consequently there is no class in the world where the temptation to dishonesty is greater than among detectives. This, too, is, I fancy, the reason that the evidence of the police detective is received with so much suspicion by jurymen--they know that the only way for him to retain his position is by making a record and getting convictions, and hence they are always looking for jobs and frame-ups. If a police detective doesn't make arrests and send a man to jail every once in a while there is no conclusive way for his superiors to be sure he isn't loafing. There are a very large number of persons who go into the detective business for the same reason that others enter the ministry--they can't make a living at anything else, Provided he has squint eyes and a dark complexion, almost anybody feels that he is qualified to unravel the tangled threads of crime. The first resource of the superannuated or discharged police detective is to start an agency. Of course, he may be first class in spite of these disqualifications, but the presumption in the first instance is that he is no longer alert or effective, and in the second that in one way or another he is not honest. Agencies recruited from deposed and other ex-policemen usually have all the faults of the police without any of their virtues. There are many small agencies which do reliable work, and there are a number of private detectives in all the big cities who work single-handed and achieve excellent results. However, if he expects to accomplish anything by hiring detectives, the layman or lawyer must first make sure of his agency or his man. One other feature of the detective business should not be overlooked. In addition to charging for services not actually rendered and expenses not actually incurred, there is in many cases a strong temptation to betray the interests of the employer. A private detective may, and usually does, become possessed of information even more valuable to the person who is being watched than to the person to whom he owes his allegiance. Unreliable rascals constantly sell out to the other side and play both ends against the middle. In this they resemble some of the famous diplomatic agents of history. And police detectives employed to run down criminals and protect society have been known instead to act as stalls for bank burglars and (for a consideration) to assist them to dispose of their booty and protect them from arrest and capture. It has repeatedly happened that reliable private detectives have discovered that the police employed upon the same case have in reality been tipping off the criminals as to what was being done and coaching them as to their conduct. Of course the natural jealousy existing between official and unofficial agents of the law leads to many unfounded accusations of this character, but, on the other hand, the fact that much of the most effective police work is done by employing professional criminals to secure information and act as stool-pigeons often results in a definite understanding that the latter shall be themselves protected in the quiet enjoyment of their labors. The relations of the regular police to crime, however, and the general subject of police graft have little place in a chapter of this character. The first question that usually arises is whether a detective shall or shall not be employed at all in any particular case. Usually the most important thing is to find out what the real character, past, and associations of some particular individual may be. Well-established detective agencies with offices throughout the country are naturally in a better position to acquire such information quickly than the private individual or lawyer, since they are on the spot and have an organized staff containing the right sort of men for the work. If the information lies in your own city you can probably hire some one to get it or ferret it out yourself quite as well, and much more cheaply, than by employing their services. The leads are few and generally simple. The subject's past employers and business associates, his landlords and landladies, his friends and enemies, and his milkman must be run down and interrogated. Perhaps his personal movements must be watched. Any intelligent fellow who is out of a job will do this for you for about $5 a day and expenses. The agencies usually charge from $6 to $8 (and up), and prefer two men to one, as a matter of convenience and to make sure that the subject is fully covered. If the suspect is on the move and trains or steamships must be met, you have practically no choice but to employ a national agency. It alone has the proper plant and equipment for the work. In an emergency, organization counts more than anything else. Where time is of the essence, the individual has no opportunity to hire his own men or start an organization of his own. But if the matter is one where there is plenty of leisure to act, you can usually do your own detective work better and cheaper than any one else. Regarding the work of the detective as a spy (which probably constitutes seventy-five per cent of his employment to-day), few persons realize how widely such services are being utilized. The insignificant old Irishwoman who stumbles against you in the department store is possibly watching with her cloudy but eagle eye for shoplifters. The tired-looking man on the street-car may, in fact, be a professional "spotter." The stout youth with the pince nez who is examining the wedding presents is perhaps a central-office man. All this you know or may suspect. But you are not so likely to be aware that the floor-walker himself is the agent of a rival concern placed in the department store to keep track, not only of prices but of whether or not the wholesalers are living up to their agreements in regard to the furnishing of particular kinds of goods only to one house; or that the conductor on the car is a paid detective of the company, whose principal duty is not to collect fares, but to report the doings of the unions; or that the gentleman who is accidentally introduced to you at the wedding breakfast is employed by a board of directors to get a line on your host's business associates and social companions. In the great struggle between capital and labor, each side has expended large sums of money in employing confederates to secure secret information as to the plans and doings of the enemy. Almost every labor union has its Judas, and less often a secretary to a capitalist is in the secret employment of a labor union. The railroads must be kept informed of what is going on, and, if necessary, they import a man from another part of the country to join the local organization. Often such men, on account of their force and intelligence, are elected to high office in the brotherhoods whose secrets they are hired to betray. Practically every big manufacturing plant in the United States has on its payrolls men acting as engineers, foremen, or laborers who are drawing from $80 to $100 per month as detectives either (1) to keep their employers informed as to the workings of the labor unions, (2) to report to the directors the actual conduct of the business by its salaried officers, superintendents, and overseers, or (3) to ascertain and report to outside competing concerns the methods and processes made use of, the materials utilized, and the exact cost of production. There are detectives among the chambermaids and bellboys in the hotels, and also among the guests; there are detectives on the passenger lists and in the cardrooms of the Atlantic liners; the colored porter on the private car, the butler at your friend's house, the chorus girl on Broadway, the clerk in the law office, the employee in the commercial agency, may all be drawing pay in the interest of some one else, who may be either a transportation company, a stock-broker, a rival financier, a yellow newspaper, an injured or even an erring wife, a grievance committee, or a competing concern; and the duties of these persons may and will range from the theft of mailing lists, books, papers, and private letters, up to genuine detective work requiring some real ability. Detective work of the sort which involves the betrayal of confidences and friendships naturally excites our aversion--yet in many cases the end undoubtedly justifies the means employed, and often there is no other way to avert disaster and prevent fiendish crimes. Sometimes, on the other hand, the information sought is purely for mercenary or even less worthy reasons, and those engaged in these undertakings range from rascals of the lowest type to men who are ready to risk death for the cause which they represent and who are really heroes of a high order. One of the latter with whom I happened to be thrown professionally was a young fellow of about twenty named Guthrie. It was during a great strike, and outrages were being committed all over the city of New York by dynamiters supposed to be in the employ of the unions. Young Guthrie, who was a reckless daredevil, offered his services to the employers, and agreed to join one of the local unions and try to find out who were the men blowing up office buildings in process of construction and otherwise terrorizing the inhabitants of the city. Accordingly he applied for membership in the organization, and by giving evidence of his courage and fiber managed to secure a place as a volunteer in the dynamiting squad. So cleverly did he pass himself off as a bitter enemy of capital that he was entrusted with secrets of the utmost value and took part in making the plans and procuring the dynamite to execute them. The quality of his nerve (as well as his foolhardiness) is shown by the fact that he once carried a dress-suit case full of the explosive around the city, jumping on and off street cars, and dodging vehicles. When the proper moment came and the dynamite had been placed in an uncompleted building on Twenty-second Street, Guthrie gave the signal and the police arrested the dynamiters--all of them, including Guthrie, who was placed with the rest in a cell in the Tombs and continued to report to the district attorney all the information which he thus secured from his unsuspecting associates. Indeed, it was hard to convince the authorities that Guthrie was a spy and not a mere accomplice who had turned State's evidence, a distinction of far-reaching legal significance so far as his evidence was concerned. The final episode in the drama was the unearthing by the police of Hoboken of the secret cache of the dynamiters, containing a large quantity of the explosive. Guthrie's instructions as to how they should find it read like a page from Poe's "Gold Bug." You had to go at night to a place where a lonely road crossed the Erie Railroad tracks in the Hackensack meadows, and mark the spot where the shadow of a telegraph pole (cast by an arc light) fell on a stone wall. This you must climb and walk so many paces north, turn and go so many feet west, and then north again. You then came to a white stone, from which you laid your course through more latitude and longitude until you were right over the spot. The police of Hoboken did as directed, and after tacking round and round the field, found the dynamite. Of course, the union said the whole thing was a plant, and that Guthrie had put the dynamite in the field himself at the instigation of his employers, but before the case came to trial both dynamiters pleaded guilty and went to Sing Sing. One of them turned out to be an ex-convict, a burglar. I often wonder where Guthrie is now. He certainly cared little for his life. Perhaps he is down in Venezuela or Mexico. He could never be aught than a soldier of fortune. But for a long time the employers thought that Guthrie was a detective sent by the unions to compromise THEM in the very dynamiting they were trying to stop! I once had a particularly dangerous and unfortunate case where a private client was being blackmailed by a half-crazy ruffian who had never seen him, but had selected him arbitrarily as a person likely to give up money. The blackmailer was a German Socialist, who was out of employment--a man of desperate character. He had made up his mind that the world owed him a living, and he had decided that the easiest way to get it was to make some more prosperous person give him a thousand dollars under threat of being exposed as an enemy of society. The charge was so absurd as to be almost ludicrous, but had my client caused the blackmailer's arrest the matter would have been the subject of endless newspaper notoriety and comment. It was therefore thought wise to make use of other means, and I procured the assistance of a young German-American of my acquaintance, who, in the guise of a vaudeville artist seeking a job, went to the blackmailer's boarding-house and pretended to be looking for an actor friend with a name not unlike that of the criminal. After two or three visits he managed to scrape an acquaintance with the blackmailer and thereafter spent much time with him. Both were out of work, both were German, and both liked beer. My friend had just enough money to satisfy this latter craving. In a month or so they were intimate friends and used to go fishing together down the bay. At last, after many months, the criminal disclosed to the detective his plan of blackmailing my client, and suggested that as two heads were better than one they had better make it a joint venture. The detective pretended to balk at the idea at first, but was finally persuaded, and at the other's request undertook the delivery of the blackmailing letters to my client! Inside of three weeks he had in his possession enough evidence in the criminal's own handwriting to send him to a prison for the rest of his life. When at last the detective disclosed his identity the blackmailer at first refused to believe him, and then literally rolled on the floor in his agony and fear at discovering how he had been hoodwinked. The next day he disappeared and has not been heard of since, but his letters are in my vault, ready to be used if he again puts in an appearance. The records of the police and of the private agencies contain many instances where murderers have confessed their guilt long after the crime to supposed friends, who were in reality decoys placed there for that very purpose. It is a peculiarity of criminals that they cannot keep their secrets locked in their own breasts. The impulse to confession is universal, particularly in women. Egotism has some part in this, but the chief element is the desire for companionship. Criminals have a horror of dying under an alias. The dignity of identity appeals even to the tramp. This impulse leads oftentimes to the most unnecessary and suicidal disclosures. The murderer who has planned and executed a diabolical homicide and who has retired to obscurity and safety will very likely in course of time make a clean breast of it to some one whom he believes to be his friend. He wants to "get it off his chest," to talk it over, to discuss its fine points, to boast of how clever he was, to ask for unnecessary advice about his conduct in the future, to have at least one other person in the world who has seen his soul's nakedness. The interesting feature of such confessions from a legal point of view is that, no matter how circumstantial they may be, they are not usually of themselves sufficient under our law to warrant a conviction. The admission or confession of a defendant needs legal corroboration. This corroboration is often very difficult to find, and frequently cannot be secured at all. This provision of the statutes is doubtless a wise one to prevent hysterical, suicidal, egotistical, and semi-insane persons from meeting death in the electric chair or on the gallows, but it often results in the guilty going unpunished. Personally, I have never known a criminal to confess a crime of which he was innocent. The nearest thing to it in my experience is when one criminal, jointly guilty with another and sure of conviction, has drawn lots with his pal, lost, confessed, and in the confession exculpated his companion. In the police organization of almost every large city there are a few men who are genuinely gifted for the work of detection. Such an one was Guiseppe Petrosino, a great detective, and an honest, unselfish, and heroic man, who united indefatigable patience and industry with reasoning powers of a high order. The most thrilling evening of my life was when I listened before a crackling fire in my library to Joe's story of the Van Cortlandt Park murder, the night before I was going to prosecute the case. Sitting stiffly in an arm-chair, his ugly moon-face expressionless save for an occasional flash from his black eyes, Petrosino recounted slowly and accurately how, by means of a single slip of paper bearing the penciled name "Sabbatto Gizzi, P.O. Box 239, Lambertville, N.J.," he had run down the unknown murderer of an unknown Italian stabbed to death in the park's shrubbery. Petrosino's physical characteristics were so pronounced that he was probably as widely, if not more widely, known than any other Italian in New York. He was short and heavy, with enormous shoulders and a bull neck, on which was placed a great round head like a summer squash. His face was pock-marked, and he talked with a deliberation that was due to his desire for accuracy, but which at times might have been suspected to arise from some other cause. He rarely smiled and went methodically about his business, which was to drive the Italian criminals out of the city and country. Of course, being a marked man in more senses than one, it was practically impossible to disguise himself, and, accordingly, he had to rely upon his own investigations and detective powers, supplemented by the efforts of the trained men in the Italian branch, many of whom are detectives of a high order of ability. If the life of Petrosino were to be written, it would be a book unique in the history of criminology and crime, for this man was probably the only great detective of the world to find his career in a foreign country amid criminals of his own race. I have instanced Petrosino as an example of a police detective of a very unusual type, but I have known several other men on the New York Police Force of real genius in their own particular lines of work. One of these is an Irishman who makes a specialty of get-rich-quick men, oil and mining stock operators, wire-tappers and their kin, and who knows the antecedents and history of most of them better than any other man in the country. He is ready to take the part of either a "sucker" or a fellow crook, as the exigencies of the case may demand. There are detectives--real ones--on the police force of all the great cities of the world to-day, most of them specialists, a few of them geniuses capable of undertaking the ferreting out of any sort of mystery, but the last are rare. The police detective usually lacks the training, education, and social experience to make him effective in dealing with the class of elite criminals who make high society their field. Yet, of course, it is this class of crooks who most excite our interest and who fill the pages of popular detective fiction. The headquarters man has no time nor inclination to follow the sporting duchess and the fictitious earl who accompanies her in their picturesque wanderings around the world. He is busy inside the confines of his own country. Parents or children may disappear, but the mere seeking of oblivion on their part is no crime and does not concern him except by special dispensation on the part of his superiors. Divorced couples may steal their own children back and forth, royalties may inadvertently involve themselves with undesirables, governmental information exude from State portals in a peculiar manner, business secrets pass into the hands of rivals, racehorses develop strange and untimely diseases, husbands take long and mysterious trips from home--a thousand exciting and worrying things may happen to the astonishment, distress, or intense interest of nations, governments, political parties, or private individuals, which from their very nature are outside the purview of the regular police. Here, then, is the field of the secret agent or private detective, and here, forsooth, is where the detective of genuine deductive powers and the polished address of the so-called "man of the world" is required. There are two classes of cases where a private detective must needs be used, if indeed any professional assistance is to be called in: first, where the person whose identity is sought to be discovered or whose activities are sought to be terminated is not a criminal or has committed no crime, and second, where, though a crime has been committed, the injured parties cannot afford to undertake a public prosecution. For example, if you are receiving anonymous letters, the writer of which accuses you of all sorts of unpleasant things, you would, of course, much prefer to find out who it is and stop him quietly than to turn over the correspondence to the police and let the writer's attorneys publicly cross-examine you at his trial as to your past career. Even if a diamond necklace is stolen from a family living on Fifth Avenue, there is more than an even chance that the owner will prefer to conceal her loss rather than to have her picture in the morning paper. Yet she will wish to find the necklace if she can. When the matter has no criminal side at all, the police cannot be availed of, although we sometimes read that the officers of the local precinct have spent many hours in trying to locate Mrs. So-and-So's lost Pomeranian, or in performing other functions of an essentially private nature--most generously. But if, for example, your daughter is made the recipient, almost daily, of anonymous gifts of jewelry which arrive by mail, express, or messenger, and you are anxious to discover the identity of her admirer and return them, you will probably wish to engage outside assistance. Where will you seek it? You can do one of two things: go to a big agency and secure the services of the right man, or engage such a man outside who may or may not be a professional detective. I have frequently utilized with success in peculiar and difficult cases the services of men whom I knew to be common-sense persons, with a natural taste for ferreting out mysteries, but who were not detectives at all. Your head bookkeeper may have real talents in this direction--if he is not above using them. Naturally, the first essential is brains--and if you can give the time to the matter, your own head will probably be the best one for your purposes. If, then, you are willing to undertake the job yourself, all you need is some person or persons to carry out your instructions, and such are by no means difficult to find. I have had many a case run down by my own office force--clerks, lawyers, and stenographers, all taking a turn at it. Why not? Is the professional sleuth working on a fixed salary for a regular agency and doing a dozen different jobs each month as likely to bring to bear upon your own private problem as much intelligence as you yourself? There is no mystery about such work, except what the detective himself sees fit to enshroud it with. Most of us do detective work all the time without being conscious of it. Simply because the matter concerns the theft of a pearl, or the betraying of a business or professional secret, or the disappearance of a friend, the opinion of a stranger becomes no more valuable. And the chances are equal that the stranger will make a bungle of it. Many of the best available detectives are men who work by themselves without any permanent staff, and who have their own regular clients, generally law firms and corporations. Almost any attorney knows several such, and the chief advantage of employing one of them lies in the fact that you can learn just what their abilities are by personal experience. They usually command a high rate of remuneration, but deductive ability and resourcefulness are so rare that they are at a premium and can only be secured by paying it. These men are able, if necessary, to assume the character of a doctor, traveller, man-about-town, or business agent without wearing in their lapels a sign that they are detectives, and they will reason ahead of the other fellow and can sometimes calculate pretty closely what he will do. Twenty-five dollars a day will generally hire the best of them, and they are well worth it. The detective business swarms with men of doubtful honesty and morals, who are under a constant temptation to charge for services not rendered and expenses not incurred, who are accustomed to exaggeration if not to perjury, and who have neither the inclination nor the ability to do competent work. Once they get their clutches on a wealthy client, they resemble the shyster lawyer in their efforts to bleed him by stimulating his fears of publicity and by holding out false hopes of success, and thus prolonging their period of service. An unscrupulous detective will, almost as a matter of course, work on two jobs at once and charge all his time to each client. He will constantly report progress when nothing has been accomplished, and his expenses will fill pages of his notebook. Meantime his daily reports will fall like a shower of autumn leaves. In no profession is it more essential to know the man who is working for you. If you need a detective, get the best you can find, put a limit on the expense, and give him your absolute confidence. CHAPTER VI. Detectives Who Detect In the preceding chapter the writer discussed at some length the real, as distinguished from the fancied, attributes of detectives in general, and the weaknesses as well as the virtues of the so-called detective "agency." There are in the city of New York at the present time about one hundred and fifty licensed detectives. Under the detective license laws each of these has been required to file with the State comptroller written evidences of his competency, and integrity, approved by five reputable freeholders of his county, and to give bond in the sum of two thousand dollars. He also has to pay a license fee of one hundred dollars per annum, but this enables him to employ as many "operators" as he chooses. In other words, the head of the agency may be of good character and his agents wholly undesirable citizens. How often this is the case is known to none better than the heads themselves. The strength and efficiency of a detective agency does not lie in the name at the top of its letter-paper, but in the unknown personnel of the men who are doing or shirking the work. I believe that most of the principals of the many agencies throughout the United States are animated by a serious desire to give their clients a full return for their money and loyal and honest service. But the best intentions in the world cannot make up for the lack of untiring vigilance in supervising the men who are being employed in the client's service. It is the right here that the "national" has an immense advantage over the small agency which cannot afford to keep a large staff of men constantly on hand, but is forced to engage them temporarily as they may be needed. The "national" agency can shift its employees from place to place as their services are required, and the advantages of centralization are felt as much in this sort of work as in any other industry. The licensed detective who sends out a hurry call for assistants is apt to be able to get only men whom he would otherwise not employ. In this chapter, the word "national," as applied to a detective agency, refers not to the title under which such an agency may do its business, but to the fact that it is organized and equipped to render services all over the country. In this connection it is worth noticing that the best detective agencies train their own operators, selecting them from picked material. The candidate must as rule be between twenty and thirty-five years of age, sound of body, and reasonably intelligent. He gets pretty good wages from the start. From the comparatively easy work of watching or "locating," he is advanced through the more difficult varieties of "shadowing" and "trailing," until eventually he may develop into a first-class man who will be set to unravel a murder mystery or to "rope" a professional criminal. But with years of training the best material makes few real detectives, and the real detective remains in fact the man who sits at the mahogany desk in the central office and presses the row of mother of pearl buttons in front of him. If you know the heads or superintendents of the large agencies you will find that the "star" cases, of which they like to talk, are, for the most part, the pursuit and capture of forgers and murderers. The former, as a rule, are "spotted" and "trailed" to their haunts, and when sufficient evidence has been obtained the police are notified, and a raid takes place, or the arrest is made, by the State authorities. In the case of a murderer, in a majority of cases, his capture is the result of skilful "roping" by an astute detective who manages to get into his confidence. For example, a murder is committed by an Italian miner. Let us suppose he has killed his "boss," or even the superintendent or owner. He disappears. As the reader known, the Italians are so secretive that it is next to impossible to secure any information--even from the relatives of the murdered man. The first thing is to locate the assassin. An Italian detective is sent into the mine as a laborer. Months may elapse before he gets on familiar or intimate terms with his fellows. All the time he is listening and watching. Presently he hears something that indicates that the murderer is communicating with one of his old friends either directly or through third parties. It is then generally only a question of time before his whereabouts are ascertained. Once he is "located" the same method is followed in securing additional evidence or material in the nature of a confession or admission tending to establish guilt. Having previously "roped" the murderer's friends, the detective now proceeds to the more difficult task of "roping" the murderer himself. Of course, the life of a detective in a Pennsylvania coal mine would be valueless if his identity were discovered, and yet the most daring pieces of detective work are constantly being performed under these and similar conditions. Where the criminal is not known, the task becomes far more difficult and at times exceedingly dangerous. One of my own friends, an Italian gentleman, spent several months in the different mines of this country, where Italians are largely employed, investigating conditions and ascertaining for the benefit of his government the extent to which anarchy was prevalent. It was necessary for him to secure work as a miner at the lowest wages and to disguise himself in such a way that it would be impossible for anybody to detect his true character. Fortunately, the great diversity of Italian dialects facilitated his efforts and enabled him to pass himself off as from another part of the country than his comrades. Having made his preparations he came to New York as an immigrant and joined a party of newly arrived Italians on their way to the coal mines of West Virginia. Without following him further, it is enough to say that during his service in the mines he overheard much that was calculated to interest exceedingly the authorities at Rome. Had his disguise been penetrated the quick thrust of a five-inch blade would have ended his career. He would never have returned to New York. There would only have been another dead "Dago" miner. The local coroner would have driven up in his buggy, looked at the body, examined the clean, deep wound in the abdomen, shrugged his shoulders, and empanelled a hetrogeneous jury who would have returned a verdict to the effect that "deceased came to his death through a stab wound inflicted by some person to the jury unknown." My friend was not a professional detective, but the recital of his experiences was enough to fill me with new respect for those engaged in the "man hunt" business among the half civilized miners of the coal regions. But the work of even the "national" agencies is not of the kind which the novel-reading public generally associates with detectives--that is to say, it rarely deals with the unravelling of "mysteries," except the identity of passers of fraudulent paper and occasional murderers. The protection of the banks is naturally the most important work that such an agency can perform. The National Bankers' Association has eleven thousand members. "Pinkerton's Bank and Bankers' Protection" also has a large organization of subscribers. These devote themselves to identifying and running down all criminals whose activities are dangerous to them. Here the agency and the police work hand in hand, exchanging photographs of crooks and suspects and keeping closely informed as to each other's doings. Yet there is no official connection between any detective agency and the police of any city. It is an almost universal rule that a private detective shall not make an arrest. The reasons for this are manifold. In the first place, the private detective has neither the general authority nor the facilities for the manual detention of a criminal. A blue coat and brass buttons, to say nothing of a night stick, are often invaluable stage properties in the last act of the melodrama. And as the criminal authorities are eventually to deal with the defendant anyway, it is just as well if they come into the case as soon as may be. It goes without saying, of course, that a detective per se has no more right to make an arrest than any private citizen--nor has a policeman, for that matter, save in exceptional cases. The officer is valuable for his dignity, avoirdupois, "bracelets," and other accessories. The police thus get the credit of many arrests in difficult cases where all the work has been done by private detectives, and it is good business for the latter to let them know it. One of the chief assets of the big agency is its accumulated information concerning all sorts of professional criminals. Its galleries are quite as complete as those of the local police headquarters, for a constant exchange of art objects is going on with the police throughout the world. And as the agency is protecting banks all over the United States it has greater interest in all bank burglars as a class than the police of any particular city who are only concerned with the burglars who (as one might say) burgle in their particular burg. Thus, you are more likely to find a detective from a national agency than a sleuth from 300 Mulberry Street, New York, following a forger to Australasia or Polynesia. The best agencies absolutely decline to touch divorce and matrimonial cases of any sort. It does not do a detective agency any good to have its men constantly upon the witness stand subject to attack, with a consequent possible reflection upon their probity of character or truthfulness. Moreover, a good detective is too valuable a person to be wasting his time in the court-room. In the ordinary divorce case the detective, having procured evidence, is obliged to remain on tap and subject to call as a witness for at least three or four months, during which time he cannot be sent away on distant work. Neither can the customer be charged ordinarily for waiting time, and apart from its malodorous character the business is not desirable from a financial point of view. The national agencies prefer clean criminal work, murder cases, and general investigating. They no longer undertake any policing, strike-breaking, or guarding. The most ridiculous misinformation in regard to their participation in this sort of work has been spread broadcast largely by jealous enemies and by the labor unions. By way of illustration, one Thomas Beet, describing himself as an English detective, contributed an article to the 'New York Tribune' of September 16, 1906, in which he said: "In one of the greatest of our strikes, that involving the steel industry, over two thousand armed detectives were employed supposedly to protect property, while several hundred men were scattered in the ranks of strikers as workmen. Many of the latter became officers in the labor bodies, helped to make laws for the organizations, made incendiary speeches, cast their votes for the most radical movements made by the strikers, participated in and led bodies of the members in the acts of lawlessness that eventually caused the sending of State troops and the declaration of martial law. While doing this, these spies within the ranks were making daily reports of the plans and purposes of the strikers. To my knowledge, when lawlessness was at its height and murder ran riot, these men wore little patches of white on the lapels of their coats so that their fellow detectives of the two thousand would not shoot them down by mistake." He, of course, referred to the great strike at Homestead, Pennsylvania, in 1892. In point of fact, there were only six private detectives engaged on the side of the employers at that time, and these were there to assist the local authorities in taking charge of six hundred and fifty watchmen, and to help place the latter upon the property of the steel company. These watchmen were under the direction of the sheriff and sworn in as peace officers of the county. Mr. Beet seems to have confused his history and mixed up the white handkerchief of the Huguenots of Nantes with the strike-breakers of Pennsylvania. It is needless to repeat (as Mr. Robert A. Pinkerton stated at the time), that the white label story is ridiculously' untrue, and that it was the strikers who attacked the watchmen, and not the watchmen the strikers. One striker and one watchman were killed. But this attack of Mr. Beet upon his own profession, under the guise of being an English detective (it developed that he was an ex-divorce detective from New York City), was not confined to his remarks about inciting wanton murder. On the contrary, he alleged (as one having authority and not merely as a scribe) that American detective agencies were practically nothing but blackmailing concerns, which used the information secured in a professional capacity to extort money from their own clients. "Think of the so-called detective," says Mr. Beet, "whose agency pays him two dollars or two dollars and fifty cents a day, being engaged upon confidential work and in the possession of secrets that he knows are worth money! Is it any wonder that so many cases are sold out by employees, even when the agencies are honest?" We are constrained to answer that it is no more wonderful than that any person earning the same sum should remain honest when he might so easily turn thief. As the writer has himself pointed out in these pages, there are hundreds of so-called detective agencies which are but traps for the guileless citizen who calls upon them for aid. But there are many which are as honestly conducted as any other variety of legitimate business. I do not know Mr. Beet's personal experience, but it appears to have been unfortunate. At any rate, his diatribe is unfounded and false, and the worst feature of it is his assertion that detective agencies make a business of manufacturing cases when there happen to be none on hand. "Soon," says he, "there were not enough cases to go around, and then with the aid of spies and informers the unscrupulous detectives began to make cases. Agencies began to work up evidence against persons and then resorted to blackmail, or else approached those to whom the information might be valuable, and by careful manoeuvring had themselves retained to unravel the case. This brought into existence hordes of professional informers who secured the opening wedges for the fake agencies. Men and women, many of them of some social standing, made it a practice to pry around for secrets which might be valuable able; spies kept up their work in large business establishments and began to haunt the cafes and resorts of doubtful reputation, on the watch for persons of wealth and prominence who might be foolish enough to place themselves in compromising circumstances. Even the servants in wealthy families soon learned that certain secrets of the master and mistress could be turned to profitable account. We shudder when we hear of the system of espionage maintained in Russia, while in the large American cities, unnoticed, are organizations of spies and informers on every hand who spend their lives digging pitfalls for the unwary who can afford to pay." One would think that we were living in the days of the Borgias! "Ninety per cent," says Mr. Beet, "of private detective agencies are rotten to the core and simply exist and thrive upon a foundation of dishonesty, deceit, conspiracy, and treachery to the public in general and their own patrons in particular. There are detectives at the heads of prominent agencies in this country whose pictures adorn the Rogues' Gallery; men who have served time in various prisons for almost every crime on the calendar." This harrowing picture has the modicum of truth that makes it insidiously dangerous. But this last extravagance betrays the denunciator. One would be interested to have this past-master of overstatement mention the names of these distinguished crooks that head the prominent agencies. Their exposure, if true, would not be libellous, and it would seem that he had performed but half his duty to the public in refraining from giving this important, if not vital, information. I know several of these gentlemen whose pictures I feel confident do not appear in the Rogues' Gallery, and who have not been, as yet, convicted of crime. A client is as safe in the hands of a good detective agency as he is in the hands of a good attorney; he should know his agency, that is all--just as he should know his lawyer. The men at the head of the big agencies generally take the same pride in their work as the members of any other profession. They know that a first-class reputation for honesty is essential to their financial success and that good will is their stock in trade. Take this away and they would have nothing. In 1878 the founder of one of the most famous of our national agencies promulgated in printed form for the benefit of his employees what he called his general principles. One of these was the following: "This agency only offers its services at a stated per diem for each detective employed on an operation, giving no guarantee of success, except in the reputation for reliability and efficiency; and any person in its service who shall, under any circumstances, permit himself or herself to receive a gift, reward, or bribe shall be instantly dismissed from the service." Another: "The profession of the detective is a high and honorable calling. Few professions excel it. He is an officer of justice, and must himself be pure and above reproach." Again: "It is an evidence of the unfitness of the detective for his profession when he is compelled to resort to the use of intoxicating liquors; and, indeed, the strongest kind of evidence, if he continually resorts to this evil practice. The detective must not do anything to farther sink the criminal in vice or debauchery, but, on the contrary, must seek to win his confidence by endeavoring to elevate him, etc." "Kindness and justice should go hand in hand, whenever it is possible, in the dealings of the detective with the criminal. There is no human being so degraded but there is some little bright spark of conscience and of right still existing in him." Last: "The detective must, in every instance, report everything which is favorable to the suspected party, as well as everything which may be against him." The man who penned these principles had had the safety of Abraham Lincoln in his keeping; and these simple statements are the best refutation of the baseless assertions above referred to. It may be that in those days the detection of crime was a bit more elementary than at the present time. One can hardly picture a modern sleuth delaying long in an attempt to evangelize his quarry, but these general principles are the right stuff and shine like good deeds in a naughty world. As one peruses this little pink pamphlet he is constantly struck by the repeated references to the detective as an actor. That was undoubtedly the ancient concept of a sleuth. "He must possess, also, the player's faculty of assuming any character that his case may require, and of acting it out to the life with an ease and naturalness which shall not be questioned." This somewhat large order is, to our relief, qualified a little later on. "It is not to be expected, however," the author admits, "that every detective shall possess these rare qualifications, although the more talented and versatile he is, the higher will be the sphere of operation which he will command." The modern detective agency is conducted on business principles and does not look for histrionic talent or general versatility. As one of the heads of a prominent agency said to me the other day: "When we want a detective to take the part of a plumber we get a plumber, and when we need one to act as a boiler-maker we go out and get a real one--if we haven't one on our pay rolls." "But," I replied, "when you need a man to go into a private family and pretend to be an English clergyman, or a French viscount, or a brilliant man of the world--who do you send?" The "head" smiled. "The case hasn't arisen yet," said he. "When it does I guess we'll get the real thing." The national detective agency, with its thousands of employees who have, most of them, grown up and received their training in its service, is a powerful organization, highly centralized, and having an immense sinking fund of special knowledge and past experience. This is the product of decades of patient labor and minute record. The agency which offers you the services of a Sherlock Holmes is a fraud, but you can accept as genuine a proposition to run down any man whose picture you may be able to identify in the gallery. The day of the impersonator is over. The detective of this generation is a hard-headed business man with a stout pair of legs. This accumulated fund of information is the heritage of an honest and long established industry. It is seventy-five per cent of its capital. It is entirely beyond the reach of the mushroom agency, which in consequence has to accept less desirable retainers involving no such requirements, or go to the wall. The collection of photographs is almost priceless and the clippings, letters, and memoranda in the filing cases only secondarily so. Very few of the "operators" pretend to anything but common-sense, with perhaps some special knowledge of the men they are after. They are not clairvoyants or mystery men, but they will tirelessly follow a crook until they get him. They are the regular troops who take their orders without question. The real "detective" is the "boss" who directs them. The reader can easily see that in all cases where a crime, such as forgery, is concerned, once the identity of the criminal is ascertained, half the work (or more than half) is done. The agencies know the face and record of practically every man who ever flew a bit of bad paper in the United States, in England, or on the Continent. If an old hand gets out of prison his movements are watched until it is obvious that he does not intend to resort to his old tricks. After the criminal is known or "located," the "trailing" begins and his "connections" are carefully studied. This may or may not require what might be called real detective work; that is to say, work requiring superior power of deducing conclusions from first-hand information, coupled with unusual skill in acting upon them. Mere trailing is often simple, yet sometimes very difficult. A great deal depends on the operator's own peculiar information as to his man's habits, haunts, and associates. It is very hard to say in most cases just where mere knowledge ends and detective work proper begins. As for disguises, they are almost unknown, except such as are necessary to enable an operator to join a gang where his quarry may be working and "rope" him into a confession. Detective agencies of the first-class are engaged principally in clean-cut criminal work, such as guarding banks from forgers and "yeggmen"--an original and dangerous variety of burglar peculiar to the United States and Canada. In other words, they have large associations of clients who need more protection than the regular police can give them, and whose interest it is that the criminal shall not only be driven out of town, but run down (wherever he may be), captured, and put out of the way for as long a time as possible. The work done for private individuals is no less important and effective, but it is secondary to the other. The great value of the "agency" to the victim of a theft is the speed with which it can disseminate its information--something quite impossible so far as the individual citizen is concerned. Let me give an illustration or two. Between 10.30 P.M. Saturday, February 25, 1911, and 9.30 A.M. Sunday, February 26, 1911, one hundred and thirty thousand dollars worth of pearls belonging to Mrs. Maldwin Drummond were stolen from a stateroom on the steamship 'Amerika' of the Hamburg-American line. The London underwriters cabled five thousand dollars reward and retained to investigate the case a well-known American agency, which before the 'Amerika' had reached Plymouth on her return trip had their notifications in the hands of all the jewelers and police officials of Europe and the United States, and had covered every avenue of disposal in North and South America. In addition, this agency investigated every human being on the Amerika from first cabin to forecastle. Within a year or so an aged stock-broker, named Bancroft, was robbed on the street of one hundred thousand dollars in securities. Inside of fifty-five minutes after he had reported his loss a detective agency had notified all banks, brokers, and the police in fifty-six cities of the United States and Canada. In the story books your detective scans with eagle eye the surface of the floor for microscopic evidences of crime. His mind leaps from a cigar ash to a piece of banana peel and thence to what the family had for dinner. His brain is working all the time. It is, of course, all quite wonderful and most excellent reading, and the old-style sleuth really thought he could do it! Nowadays, while the fake detective is snooping around the back piazza with a telescope, the real one is getting the "dope" from the village blacksmith or barber or the waitress at the station. He may not be highly intelligent, but he knows the country, and, what is more important, he knows the people. All the brains in the world cannot make up for the lack of an elementary knowledge of the place and the characters themselves. It stands to reason that no strange detective could form as good an opinion as to which of the members of your household would be most likely to steal a piece of jewelry as you could yourself. Yet the old-fashioned Sherlock knew and knows it all. One of the best illustrations of the practical necessity of some first-hand knowledge is that afforded by the recovery of a diamond necklace belonging to the wife of a gentleman in a Connecticut town. The facts that are given here are absolutely accurate. The gentleman in question was a retired business man of some means who lived not far from the town and who made frequent visits to New York City. He had made his wife a present of a fifteen thousand-dollar diamond necklace, which she kept in a box in a locked trunk in her bedroom. While she had owned the necklace for over a year she had never worn it. One evening having guests for dinner on the occasion of her wedding anniversary she decided to put it on and wear it for the first time. That night she replaced it in its box and enclosed this in another box, which she locked and placed in her bureau drawer. This she also locked. The following night she decided to replace the necklace in the trunk. She accordingly unlocked the bureau drawer, and also the larger box, which apparently was in exactly the same condition as when she had put it away. But the inner box was empty and the necklace had absolutely disappeared. Now, no one had seen the necklace for a year, and then only her husband, their servants, and two or three old friends. No outsider could have known of its existence. There was no evidence of the house or bureau having been disturbed. A New York detective agency was at once retained, which sent one of its best men to the scene of the crime. He examined the servants, heard the story, and reported that it must have been an inside job--that there was no possibility of anything else. But there was nothing to implicate any one of the servants, and there seemed no hope of getting the necklace back. Two or three days later the husband turned up at the agency's office in New York, and after beating about the bush for a while, remarked: "I want to tell you something. You have got this job wrong. There's one fact your man didn't understand. The truth is that I'm a pretty easy going sort, and every six months or so I take all the men and girls employed around my house down to Coney Island and give 'em a rip-roaring time. I make 'em my friends, and I dance with the girls and I jolly up the men, and we are all good pals together. Sort of unconventional, maybe, but it pays. I know--see?--that there isn't a single one of those people who would do me a mean trick. Not one of 'em but would lend me all the money he had. I don't care what your operator says, the person who took that necklace came from outside. You take that from me. The superintendent, who is wise in his generation, scratched his chin. "Is that dead on the level?" he inquired. "Gospel!" answered the other. "I'll come up myself!" said the boss. Next day the boss behind a broken-winded horse, in a dilapidated buggy, drove from another town to the place where his client lived. At the smithy on the crossroads he stopped and borrowed a match. "Anybody have good hosses in this town?" asked the detective. "Sure!" answered the smith. "Mr. ------ up on the hill has the best in the county!" "What sort of a feller is he?" The smith chewed in silence for a moment. "Don't know him myself, but I tell you what, his help says he's the best employer they ever had--and they stay there forever!" The boss drove on to the house, which he observed was situated at about an equal distance from three different railway stations and surrounded by a piazza with pillars. He walked around it, examining the vines until his eye caught a torn creeper and a white scratch on the paint. It had been an outside job after all, and two weeks had already been lost. Deduction was responsible for a mistake which would not have occurred had a little knowledge been acquired first. That is the lesson of this story. The denouement, which has no lesson at all, is interesting. The superintendent saw no prospect of getting back the necklace, but before so informing the client, decided to cogitate on the matter for a day or two. During that time he met by accident a friend who made a hobby of studying yeggmen and criminals and occasionally doing a bit of the amateur tramp act himself. "By the way," said the friend, "do you ever hear of any 'touches' up the river or along the Sound?" "Sometimes," answered the boss, pricking up his ears. "Why do you ask?" "Why, the other night," replied the friend, "I happened to be meeting my wife up at the Grand Central about six o'clock and I saw two yeggs that I knew taking a train out. I thought it was sort of funny. Pittsburgh Ike and Denver Red." "When was it?" "Two weeks ago," said the friend. "Thanks," returned the boss. "You must excuse me now; I've got an important engagement." Three hours later Pittsburgh Ike and Denver Red were in a cell at headquarters. At six o'clock that evening the necklace had been returned. This was a coincidence that might not occur in a hundred years, but had the deductive detective determined the question he would still be pondering on the comparative probability of whether the cook, the chore man, or the hired girl was the guilty party. A clean bit of detection on the part of an agency, and quite in the day's work, was the comparatively recent capture of a thief who secured three hundred and sixty thousand dollars worth of securities from a famous banking institution in New York City by means of a very simple device. A firm of stock brokers had borrowed from this bank about two hundred and fifty thousand dollars for a day or two and put up the securities as collateral. In the ordinary course of business, when the borrower has no further use for the money, he sends up a certified check for the amount of the loan with interest, and the bank turns over the securities to the messenger. In this particular case a messenger arrived with a certified check, shoved it into the cage, and took away what was pushed out to him in return--three hundred and sixty thousand dollars in bonds. The certification turned out to be a forgery and the securities vanished. I do not know whether the police were consulted or not. Sometimes in such cases the banks prefer to resort to more private methods and, perhaps, save the necessity of making a public admission of their stupidity. When my friend, the superintendent, was called in, the officers of the bank were making the wildest sort of guesses as to the identity of the master mind and hand which had deceived the cashier. He must, they felt sure, have made the forgery with a camel's hair brush of unrivalled fineness. "A great artist!" said the president. "The most skilful forger in the world!" opined another. "We must run down all the celebrated criminals!" announced a third. "Great artist-nothing!" remarked the boss, rubbing his thumb over the certification which blurred at the touch. "He's no painter! Why, that's a rubber stamp!" What a shock for those dignified gentlemen! To think that their cashier had been deceived by a mere, plebeian, common or garden thing of rubber! "Good-day, gents!" said the boss, putting the check in his wallet. "I've got to get busy with the rubber stamp makers!" He returned to his office and detailed a dozen men to work on the East Side and a dozen on the West Side, with orders to search out every man in New York who manufactured rubber stamps. Before the end of the afternoon the maker was found on the Bowery, near Houston Street. This was his story: A couple of weeks before, a young man had come in and ordered a certification stamp, drawing at the time a rough design of what he wanted. The stamp, when first manufactured, had not been satisfactory to him; and on his second visit, the customer had left a piece of a check, carefully torn out in circular form, which showed the certification which he desired copied. This fragment the maker had retained, as well as a slip of paper, upon which the customer had written the address of the place to which he wished the stamp sent--The Young Men's Christian Association! The face of the fragment showed a part of the maker's signature. The superintendent ran his eye over a list of brokers and picked out the name of the firm most like the hieroglyphics on the check. Then he telephoned over and asked to be permitted to see their pay roll. Carefully comparing the signature appearing thereon with the Y.M.C.A. slip, he picked his man in less than ten minutes. The latter was carefully trailed to his home, and thence to the Young Men's Christian Association, after which he called on his fiancee at her father's house. He spent the night at his own boarding place. Next morning (Sunday) he was arrested on his way to church, and all the securities (except some that he later returned) were discovered in his room. More quick work! The amateur's method had been very simple. He knew that the loan had been made and the bonds sent to the bank. So he forged a check, certified it himself, and collected the securities. Of course, he was a bungler and took a hundred rash chances. A good example of the value of the accumulated information--documentary, pictorial, and otherwise--in the possession of an agency was the capture of Charles Wells, more generally known as Charles Fisher, alias Henry Conrad, an old-time forger, who suddenly resumed his activities after being released from a six-year term in England. A New York City bank had paid on a bogus two hundred and fifty dollar check and had reported its loss to the agency in question. The superintendent examined the check (although Fisher had been in confinement for six years on the other side) spotted it as his work. The next step was to find the forger. Of course, no man who does the actual "scratching" attempts to "lay down" the paper. That task is up to the "presenter." The cashier of the bank identified in the agency's gallery the picture of the man who had brought in the two hundred and fifty dollar check, and he in turn proved to be another ex-convict well known in the business, whose whereabouts in New York were not difficult to ascertain. He was "located" and "trailed" and all his associates noted and followed. In due course he "connected up" (as they say) with Fisher. Now, it is one thing to follow a man who has no idea that he is being followed and another to trail a man who is as suspicious and elusive as a fox. A professional criminal's daily business is to observe whether or not he is being followed, and he rarely if ever, makes a direct move. If he wants a drink at the saloon across the street, he will, by preference, go out the back door, walk around the block and dodge in the side entrance under the tail of an ice wagon. In this case the detectives followed the presenter for days before they reached Fisher, and when they did they had still to locate his "plant." The arrest in this case illustrates forcibly the chief characteristic of successful criminals--egotism. The essential quality of daring required in their pursuits gives them an extraordinary degree of self-confidence, boldness, and vanity. And to vanity most of them can trace their fall. It seems incredible that Fisher should have returned to the United States after his discharge from prison and immediately resumed his operations without carefully concealing his impedimenta. Yet when he was run down in a twenty-six family apartment house, the detectives found in his valise several thousand blank and model checks, hundreds of letters and private papers, a work on "Modern Bank Methods," and his "ticket of leave" from England! This man was a successful forger and because he was successful, his pride in himself was so great that he attributed his conviction in England to accident and really felt that he was immune on his release. The arrest of such a man often presents great legal difficulties which the detectives overcome by various practical methods. Of course, no officer without a search warrant has a right to enter a house or an apartment. A man's house is his castle. Mayor Gaynor, when a judge, in a famous opinion (more familiarly known in the lower world even than the Decalogue) laid down the law unequivocally and emphatically in this regard. Thus, in the Fisher case, the defendant having been arrested on the street, the detectives desired to search the apartment of the family with which he lived. They did this by first inducing the tenant to open the door and, after satisfying themselves that they were in the right place, ordering the occupants to get in line and "march" from one room to another while they rummaged for evidence. "Of course, we had no right to do it, but they didn't know we hadn't!" said the boss. But frequently the defendant knows his rights just as well as the police. On one occasion the same detective who arrested Fisher wanted to take another man out of an apartment where he had been run to earth. His mother (aged eighty-two years) put the chain on the door and politely declined to open it. All the evidence against the forger was inside the apartment and he was actively engaged in burning it up in the kitchen stove. In half an hour to arrest him would have been useless! The detectives stormed and threatened, but the old crone merely grinned at them. She hated a "bull" as much as did her son. Fearing to take the law into their own hands, they summoned a detective sergeant from head-quarters, but, although he sympathized with them, he had read Mayor Gaynor's decision and declined to take any chances. They then "appealed" to the cop on the beat, who proved more reasonable, but although he used all his force, he was unable to break down the door which had in the meantime been reinforced from the inside. After about an hour, the old lady unchained the door and invited the detectives to come in. The crook was sitting by the window smoking a cigar and reading St. Nicholas, while all evidence of his crime had vanished in smoke. One more anecdote, at the expense of the deductive detective. A watchman was murdered, the safe of a brewery blown open and the contents stolen. Local detectives worked on the case and satisfied themselves that the night engineer at the brewery had committed the crime. He was a quiet and, apparently, a God-fearing man, but circumstances were conclusive against him. In fact, he had been traced within ten minutes of the murder on the way to the scene of the homicide. But some little link was lacking and the brewery officials called in the agency. The first thing the superintendent did was to look over the engineer. At first sight he recognized him as a famous crook who had served five years for a homicidal assault! One would think that that would have settled the matter. But it didn't! The detective said nothing to his associates or employers, but called on the engineer that evening and had a quiet talk with him in which he satisfied himself that the man was entirely innocent. The man had served his time, turned over a new leaf, and was leading an honest, decent life. Two months later the superintendent caused the arrest of four yeggmen, all of whom were convicted and are now serving fifteen years each for the crime. Thus, the reader will observe that there are just a few more real detectives still left in the business-if you can find them. Incidentally, they, one and all, take off their hats to Scotland Yard. They will tell you that the Englishman may be slow (fancy an American inspector of police wearing gray suede gloves and brewing himself a dish of tea in his office at four o'clock), but that once he goes after a crook he is bound to get him--it is merely a question of time. I may add that in the opinion of the heads of the big agencies the percentage of ability in the New York Detective Bureau is high--one of them going so far as to claim that fifty per cent of the men have real detective ability--that is to say "brains." That is rather a higher average than one finds among clergymen and lawyers, yet it may be so. CHAPTER VII. Women in the Courts AS WITNESSES Women appear in the criminal courts constantly as witnesses, although less frequently as complainants and defendants. As complainants are always witnesses, and as defendants may, and in point of fact generally do become so, whatever generalizations are possible regarding women in courts of law can most easily be drawn from their characteristics as givers of testimony. Roughly speaking, women exhibit about the same idiosyncrasies and limitations in the witness-chair as the opposite sex, and at first thought one would be apt to say that it would be fruitless and absurd to attempt to predicate any general principles in regard to their testimony, but a careful study of female witnesses as a whole will result in the inevitable conclusion that their evidence has virtues and limitations peculiar to itself. The ancient theory that woman was man's inferior showed itself in the tendency to reject, or at least to regard with suspicion, her evidence in legal matters. "The following law," says W. M. Best, "is attributed to Moses by Josephus: 'Let the testimony of women not be received on account of the levity and audacity of their sex'; a law which looks apocryphal, but which, even if genuine, could not have been of universal application.... The law of ancient Rome, though admitting their testimony in general, refused it in certain cases. The civil canon laws of mediaeval Europe seem to have carried the exclusion much further. Mascardus says: 'Feminis plerumque omnino non creditur, et id dumtaxat, quod sunt feminae qua ut plurimum solent esse fraudulentre fallaces, et dolosae' [Generally speaking, no credence at all is given to women, and for this reason, because they are women, who are usually deceitful, untruthful, and treacherous in the very highest degree.] And Lancelottus, in his 'Institutiones Juris Canonici,' lays it down in the most distinct terms, that women cannot in general be witnesses, citing the language of Virgil: 'Varium et mutabile semper femina'.... "Bruneau, although a contemporary of Madame de Sevigne, did not scruple to write, in 1686, that the deposition of three women was only equal to that of two men. At Berne, so late as 1821, in the Canton of Vaud, so late as 1824, the testimony of two women was required to counterbalance that of one man.... A virgin was entitled to greater credit than a widow.... In the 'Canonical Institutions of Devotus,' published at Paris in 1852, it is distinctly stated that, except in a few peculiar instances, women are not competent witnesses in criminal cases. In Scotland also, until the beginning of the eighteenth century, sex was a cause of exclusion from the witness-box in the great majority of instances." Cockburn in his Memoirs tells of an incident during the trial of Glengarry, in Scotland, for murder in a duel, which is, perhaps, explicable by this extraordinary attitude: A lady of great beauty was called as a witness and came into court heavily veiled. Before administering the oath, Lord Eskgrove, the judge (to whom this function belongs in Scotland), gave her this exposition of her duty: "Young woman, you will now consider yourself as in the presence of Almighty God and of this High Court. Lift up your veil, throw off all your modesty, and look me in the face." Whatever difference does exist in character between the testimony of men and women has its root in the generally recognized diversity in the mental processes of the two sexes. Men, it is commonly declared, rely upon their powers of reason; women upon their intuition. Not that the former is frequently any more accurate than the latter. But our courts of law (at least those in English-speaking countries) are devised and organized, perhaps unfortunately, on the principle that testimony not apparently deduced by the syllogistic method from the observation of relevant fact is valueless, and hence woman at the very outset is placed at a disadvantage and her usefulness as a probative force sadly crippled. The good old lady who takes the witness-chair and swears that she knows the prisoner took her purse has perhaps quite as good a basis for her opinion and her testimony (even though she cannot give a single reason for her belief and becomes hopelessly confused on cross-examination) as the man who reaches the same conclusion ostensibly by virtue of having seen the defendant near by, observed his hand reaching for the purse, and then perceived him take to his heels. She has never been taught to reason and has really never found it necessary, having wandered through life by inference or, more frankly, by guesswork, until she is no longer able to point out the simplest stages of her most ordinary mental processes. As the reader is already aware, the value of all honestly given testimony depends first upon the witness's original capacity to observe the facts; second upon his ability to remember what he has seen and not to confuse knowledge with imagination, belief or custom, and lastly, upon his power to express what he has, in fact, seen and remembers. Women do not differ from men in their original capacity to observe, which is a quality developed by the training and environment of the individual. It is in the second class of the witness's limitations that women as a whole are more likely to trip than men, for they are prone to swear to circumstances as facts, of their own knowledge, simply because they confuse what they have really observed with what they believe did occur or should have occurred, or with what they are convinced did happen simply because it was accustomed to happen in the past. Perhaps the best illustration of the female habit of swearing that facts occurred because they usually occurred, was exhibited in the Twitchell murder trial in Philadelphia, cited in Wellman's "Art of Cross-Examination." The defendant had killed his wife with a blackjack, and having dragged her body into the back yard, carefully unbolted the gate leading to the adjacent alley and, retiring to the house, went to bed. His purpose was to create the impression that she had been murdered by some one from outside the premises. To carry out the suggestion, he bent a poker and left it lying near the body smeared with blood. In the morning the servant girl found her mistress and ran shrieking into the street. At the trial she swore positively that she was first obliged to unbolt the door in order to get out. Nothing could shake her testimony, and she thus unconsciously negatived the entire value of the defendant's adroit precautions. He was justly convicted, although upon absolutely erroneous testimony. The old English lawyers occasionally rejected the evidence of women on the ground that they are "frail." But the exclusion of women as witnesses in the old days was not for psychological reasons, nor did it originate from a critical study of the probative value of their testimony. Though the conclusions to which women frequently jump may usually be shown by careful interrogation to be founded upon observation of actual fact, their habit of stating inferences often leads them to claim knowledge of the impossible--"wiser in [their] own conceit than seven men that can render a reason." In a very recent case where a clever thief had been convicted of looting various apartments in New York City of over eighty thousand dollars' worth of jewelry, the female owners were summoned to identify their property. The writer believes that in every instance these ladies were absolutely ingenuous and intended to tell the absolute truth. Each and every one positively identified various of the loose stones found in the possession of the prisoner as her own. This was the case even when the diamonds, emeralds and pearls had no distinguishing marks at all. It was a human impossibility actually to identify any such objects, and yet these eminently respectable and intelligent gentlewomen swore positively that they could recognize their jewels. They drew the inference merely that as the prisoner had stolen similar jewels from them these must be the actual ones which they had lost, an inference very likely correct, but valueless in a tribunal of justice. Where their inferences are questioned, women, as a rule, are much more ready to "swear their testimony through" than men. They are so accustomed to act upon inference that, finding themselves unable to substantiate their assertion by any sufficient reason, they become irritated, "show fight," and seek refuge in prevarication. Had they not, during their entire lives, been accustomed to mental short-cuts, they would be spared the humiliation of seeing their evidence "stricken from the record." One of the ladies referred to testified as follows: "Can you identify that diamond?" "I am quite sure that it is mine:" "How do you know?" "It looks exactly like it." "But may it not be a similar one and not your own?" "No; it is mine." "But how? It has no marks." "I don't care. I know it is mine. I SWEAR IT IS!" The good lady supposed that, unless she swore to the fact, she might lose her jewel, which was, of course, not the case at all, as the sworn testimony founded upon nothing but inference left her in no better position than she was in before. The writer regrets to say that observation would lead him to believe that women as a rule have somewhat less regard for the spirit of their oaths than men, and that they are more ready, if it be necessary, to commit perjury. This may arise from the fact that women are fully aware that their sex protects them from the same severity of cross-examination to which men would be subjected under similar circumstances. It is today fatal to a lawyer's case if he be not invariably gentle and courteous with a female witness, and this is true even if she be a veritable Sapphira. In spite of these limitations, which, of course, affect the testimony of almost every person, irrespective of sex, women, with the possible exception of children, make the most remarkable witnesses to be found in the courts. They are almost invariably quick and positive in their answers, keenly alive to the dramatic possibilities of the situation, and with an unerring instinct for a trap or compromising admission. A woman will inevitably couple with a categorical answer to a question, if in truth she can be induced to give one at all, a statement of damaging character to her opponent. For example: "Do you know the defendant?" "Yes, to my cost!" Or "How old are you?" "Twenty-three,--old enough to have known better than to trust him." Forced to make an admission which would seem to hurt her position, the explanation, instead of being left for the re-direct examination of her own counsel, is instantly added to her answer then and there. "Do you admit that you were on Forty-second Street at midnight?" "Yes. But it was in response to a message sent by the defendant through his cousin." What is commonly known as "silent cross-examination" is generally the most effective. The jury realize the difficulties of the situation for the lawyer, and are not unlikely to sympathize with him, unless he makes bold to attack the witness, when they quickly chance their attitude. One question, and that as to the witness's means of livelihood, is often sufficient. "How do you support yourself?" "I am a lady of leisure!" replies the witness (arrayed in flamboyant colors) snappishly. "That will do, thank you," remarks the lawyer with a smile. "You may step down." The writer remembers being nicely hoisted by his own petard on a similar occasion: "What do you do for a living?" he asked. The witness, a rather deceptively arrayed woman, turned upon him with a glance of contempt: "I am a respectable married woman, with seven children," she retorted. "I do nothing for a living except cook, wash, scrub, make beds, clean windows, mend my children's clothes, mind the baby, teach the four oldest their lessons, take care of my husband, and try to get enough sleep to be up by five in the morning. I guess if some lawyers worked as hard as I do they would have sense enough not to ask impertinent questions." An amusing incident is recorded of how a feminine witness turned the laugh upon Mr. Francis L. Wellman, the noted cross-examiner. In his book he takes the opportunity to advise his lawyer readers to "avoid the mistake, so common among the inexperienced, of making much of trifling discrepancies. It has been aptly said," he continues, "that 'juries have no respect for small triumphs over a witness's self-possession or memory!' Allow the loquacious witness to talk on; he will be sure to involve himself in difficulties from which he can never extricate himself. Some witnesses prove altogether too much; encourage them and lead them by degrees into exaggerations that will conflict with the common-sense of the jury." Mr. Wellman is famous for following this precept himself and, with one eye significantly cast upon the jury, is likely to lead his witness a merry dance until the latter is finally "bogged" in a quagmire of absurdities. Not long ago, shortly after the publication of his book, the lawyer had occasion to cross-examine a modest-looking young woman as to the speed of an electric car. The witness seemed conscious that she was about to undergo a severe ordeal, and Mr. Wellman, feeling himself complete master of the situation, began in his most winsome and deprecating manner: "And how fast, Miss, would you say the car was going?" "I really could not tell exactly, Mr. Wellman." "Would you say that it was going at ten miles an hour?" "Oh, fully that!" "Twenty miles an hour?" "Yes, I should say it was going twenty miles an hour." "Will you say it was going thirty miles an hour?" inquired Wellman with a glance at the jury. "Why, yes, I will say that it was." "Will you say it was going forty?" "Yes." "Fifty?" "Yes, I will say so." "Seventy?" "Yes." "Eighty?" "Yes," responded the young lady with a countenance absolutely devoid of expression. "A hundred?" inquired the lawyer with a thrill of eager triumph in his voice. There was a significant hush in the court-room Then the witness, with a patient smile and a slight lifting of her pretty eyebrows, remarked quietly: "Mr. Wellman, don't you think we have carried our little joke far enough?" There is no witness in the world more difficult to cope with than a shrewd old woman who apes stupidity, only to reiterate the gist of her testimony in such incisive fashion as to leave it indelibly imprinted on the minds of the jury. The lawyer is bound by every law of decency, policy and manners to treat the aged dame with the utmost consideration. He must allow her to ramble on discursively in defiance of every rule of law and evidence in answer to the simplest question; must receive imperturbably the opinions and speculations upon every subject of both herself and (through her) of her neighbors; only to find when he thinks she must be exhausted by her own volubility, that she is ready, at the slightest opportunity, to break away again into a tangle of guesswork and hearsay, interwoven with conclusions and ejaculation. Woe be unto him if he has not sense enough to waive her off the stand! He might as well try to harness a Valkyrie as to restrain a pugnacious old Irishwoman who is intent on getting the whole business before the jury in her own way. In the recent case of Gustav Dinser, convicted of murder, a vigorous old lady took the stand and testified forcibly against the accused. She was as "smart as paint," as the saying goes, and resolutely refused to answer any questions put to her by counsel for the defence. Instead, she would raise her voice and make a savage onslaught upon the prisoner, rehearsing his brutal treatment of the deceased on previous occasions, and getting in the most damaging testimony. "Do you say, Mrs.--" the lawyer would inquire deferentially, "that you heard the sound of three blows?" "Oh, thim blows!" the old lady would cry--"thim turrible blows! I could hear the villain as he laid thim on! I could hear the poor, pitiful groans av her, and she so sufferin'! 'Twas awful! Howly Saints,'twould make yer blood run cowld!" "Stop! stop!" exclaimed the lawyer. "Ah, stop is it? Ye can't stop me till Oi've had me say to tell the whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste is afther murtherin' the poor thing,' says I; 'run out an' git an officer!'" "I object to all this!" shouts the lawyer. "Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been after objectin' if ye'd heard thim turrible blows that kilt her--the poor, sufferin', swate crayter! I hope he gits all that's comin' to him--bad cess to him for a blood-thirsty divil!" The lawyer ignominiously abandoned the attack. The writer recalls a somewhat similar instance, but one even better exhibiting the cleverness of an old woman, which occurred in the year 1901. A man named Orlando J. Hackett, of prepossessing appearance and manners, was on trial, charged with converting to his own use money which had been intrusted to him for investment in realty. The complainant was a shrewd old lady, who together with her daughter, had had a long series of transactions with Hackett which would have entirely confused the issue could the defence have brought them before the jury. The whole contention of the prosecution was that Hackett had received the money for one purpose and used it for another. During preparation for the trial the writer had had both ladies in his office and remembers making the remark: "Now, Mrs. ------, don't forget that the charge here is that you gave Mr. Hackett the money to put into real estate. Nothing else is comparatively of much importance." "Be sure and remember that, mother," the daughter had admonished her. In the course of a month the case came on for trial before Recorder Goff, in Part II of the General Sessions. Mrs. ------ gave her testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now Lieutenant-Governor of the State, arose to cross-examine her. "Madam," he began courteously, "you say you gave the defendant money?" "I told him to put it into real estate, and he said he would!" replied Mrs. firmly. "I did not ask you that, Mrs. ------," politely interjected Mr. Chanler. "How much did you give him?" "I told him to put it into real estate, and he said he would!" repeated the old lady wearily. "But, madam, you do not answer my question!" exclaimed Chanler. "How much did you give him?" "I told him to put it into real--" began the old lady again. "Yes, yes!" cried the lawyer; "we know that! Answer the question." "estate, and he said he would!" finished the old woman innocently. "If your Honor please, I will excuse the witness. And I move that her answers be stricken out!" cried Chanler savagely. The old lady was assisted from the stand, but as she made her way with difficulty towards the door of the court-room she could be heard repeating stubbornly: "I told him to put it into real estate, and he said he would!" Almost needless to say, Hackett was convicted and sentenced to seven years in State's prison. To recapitulate, the quickness and positiveness of women make them ordinarily better witnesses than men; they are vastly more difficult to cross-examine; their sex protects them from many of the most effective weapons of the lawyer, with the result that they are the more ready to yield to prevarication; and, even where the possibility of complete and unrestricted cross-examination is afforded, their tendency to inaccurately inferential reasoning, and their elusiveness in dodging from one conclusion to another, render the opportunity of little value. In general, however, women's testimony differs little in quality from that of men, all testimony being subject to the same three great limitations irrespective of the sex of the witness, and the conclusions set forth above are merely the result of an effort on the part of the writer to comment somewhat upon those small differences which, under close scrutiny, may fairly be said to exist. These differences are quite as noticeable at the breakfast-table as in the court-room; and are no more patent to the advocate than to the ordinary male animal whose forehead habitually reddens when he hears the unanswerable reason which, in default of all others, explains and glorifies the mental action of his wife, sister or mother: "Just because!" AS COMPLAINANTS AND DEFENDANTS The ratio of women to men indicted and tried for crime is, roughly, about one to ten. Could adequate statistics be procured, the proportion of female to male complainants in criminal cases would very likely prove to be about the same: In a very substantial proportion, therefore, of all prosecutions for crime a woman is one of the chief actors. The law of the land compels the female prisoner to submit the question of her guilt or innocence to twelve individuals of the opposite sex; and permits the female complainant to rehearse the story of her wrongs before the same collection of colossal intellects and adamantine hearts. The first thing the ordinary woman hastens to do if she be summoned to appear in a court of justice is not, as might be expected, to think over her testimony or try to recall facts obliterated or confused by time, but to buy a new hat; and precisely the same thing is true of the female defendant called to the bar of justice, whether it be for stealing a pair of gloves or poisoning her lover. Yet how far does the element of sex defeat the ends of justice? To answer this question it is necessary to determine how far juries are liable to favor the testimony of a woman plaintiff merely because she is a woman, and how far sympathy for a woman arraigned as a prisoner is likely to warp their judgment. As to the first, it is fairly safe to say that a woman is much more likely to win a verdict in a civil court or to persuade the jury that the prisoner is guilty in a criminal case than a man would be in precisely similar circumstances. In most criminal prosecutions for the ordinary run of felonies little injustice is likely to result from this. There is one exception, however, where juries should reach conclusions with extreme caution, namely, where certain charges are brought by women against members of the opposite sex. Here the jury is apt to leap to a conclusion, rendered easy by the attractiveness of the witness and the feeling that the defendant is a "cur anyway," and ought to be "sent up." The difficulty of determining, even in one's office, the true character of a plausible woman is enhanced tenfold in the court-room, where the lawyer is generally compelled to proceed upon the assumption that the witness is a person of irreproachable life and antecedents. Almost any young woman may create a favorable impression, provided her taste in dress be not too crude, and, even when it is so, the jury are not apt to distinguish carefully between that which cries to Heaven and that which is merely "elegant." When the complaining witness is a woman who has merely lost money through the acts of the defendant, the jury are not so readily moved to accept her story in toto as when the crime charged is of a different character. They realize that the complainant, feeling that she has been injured, may be inclined to color her testimony, perhaps unconsciously, until the wrong becomes a crime. An ordinary example of this variety of prosecution is where the witness is a young woman from the East Side, usually a Polish or Russian Jewess, who charges the defendant, a youth of about her own age, with stealing her money by means of false pretences. They have been engaged to be married, and she has turned over her small savings to him to purchase the diamond ring and perhaps set him up in a modest business of his own. He has then fallen in love with some other girl, has broken the engagement, and the ring now adorns the fourth finger of her rival. Her money is gone. She is without a dot. She hurries with her parents and loudly vociferating friends to the Essex Market Police Court, and secures a warrant for the defendant on the theory that he defrauded her by "trick and device" or "false representations." Usually the only "representation" has been a promise to marry her. Her real motive is revenge upon her faithless fiance. In nine cases out of ten the fellow is a cad, who has deliberately deserted her after getting her money, but it is doubtful whether any real crime is involved. If the judge lets the case go to the jury it is a pure gamble as to what the result will be, and it may largely turn on the girl's physical attractiveness. If she be pretty and demure a mixture of emotions is aroused in the jury. "He probably did love her," say the twelve, "because any one would be likely to do so. If he did love her, of course he didn't falsely pretend to do so; but if he deserted a woman like that he ought to be in jail anyway." Thus the argument that ought to acquit in fact may convict the defendant. If the rival also is pretty, hopeless confusion results; while if the complainant be a homely girl the jury feels that he must have intended to swindle her anyway, as he could never have honestly intended to marry her. Thus in any case the Lothario is apt to pay a severe penalty for his faithlessness. The man prosecuted by a woman, provided she cannot be persuaded to withdraw the charge against him, is likely to get but cold consideration for his side of the story and short shrift in the jury-room. Turn about, if he can get a young and attractive woman to swear to his alibi or good reputation the honest masculine citizen whom he has defrauded may very likely have to whistle for his revenge. Many a scamp has gone free by producing some sweetly demure maiden who faithfully swears that she knows him to be an honest man. A blush at the psychological moment and a wink from the lawyer is quite enough to lead the jury to believe that, if they acquit the defendant, they will "make the young lady happy," whereas if he is convicted she will remain for aye a heart-broken spinster. Like enough she may be only the merest acquaintance. The writer is not likely to forget a distinguished lawyer's instructions to his client who happened also to be a childhood acquaintance--as she was about to go into court as the plaintiff in a suit for damages: "I would fold my hands in my lap, Gwendolyn--yes, like that--and be calm, very calm. And, Gwendolyn, above all things, be demure, Gwendolyn! Be demure!" Gwendolyn was the demurest of the demure, letting her eyes fall beneath their pendant black lashes at the conclusion of each answer, and won her case without the slightest difficulty. The unconscious or conscious influence of women upon the intellects of jurymen has given rise to a very prevalent impression that it is difficult if not impossible successfully to prosecute a woman for crime. This feeling expresses itself in general statements to the effect that as things stand to-day a woman may commit murder with impunity. Experience, supplemented by the official records, demonstrates, however, that, curious as it must seem, the same sentiment aroused by a woman supposed to have been wronged is not inspired in a jury by a woman accused of crime. It is, indeed, true that juries are apt to be more lenient with women than with men, but this leniency shows itself not in acquitting them of the crimes charged against them, but of finding them guilty in lower degrees. Of course flagrant miscarriages of justice frequently occur, which, by reason of their widespread publicity in the press, would seem to justify the almost universal opinion that women are immune from the penalities for homicide. It is also true that such miscarriages of justice are more likely when the defendant is a woman than if he be a man. One of these hysterical acquittals which give color to popular impression, but which the writer believes to be an exception, was the case of a young mother tried and acquitted for murder in the first degree, December 22, 1904. This young woman, whose history was pathetic in the extreme, was shown clearly by the evidence to have deliberately taken the life of her child by giving it carbolic acid. The story was a shocking one, yet the jury apparently never considered at all the possibility of convicting her, but on retiring to the jury-room spent their time in discussing how much money they should present her on her acquittal. No better actor ever played a part upon the court-room stage than old "Bill" Howe. His every move and gesture was considered with reference to its effect upon the jury, and the climax of his summing-up was always accompanied by some dramatic exhibition calculated to arouse sympathy for his client. Himself an adept at shedding tears at will, he seemed able to induce them when needed in the lachrymal glands of the most hardened culprit whom he happened to be defending. Mr. Wellman tells the story of how he was once prosecuting a woman for the murder of her lover, whom she had shot rather than allow him to desert her. She was a parson's daughter who had gone wrong and there seemed little to be said in her behalf. She sat at the bar the picture of injured innocence, with a look of spirituality which she must have conjured up from the storehouse of her memories of her father. Howe was rather an exquisite so far as his personal habits were concerned, and allowed his finger-nails to grow to an extraordinary length. He had arranged that at the climax of his address to the jury he would turn and, tearing away the slender hands of his client from her tear-stained face, challenge the jury to find guilt written there. Wellman was totally unprepared for this and a shiver ran down his spine when he saw Howe, his face apparently surcharged with emotion, turn suddenly towards his client and roughly thrust away her hands. As he did so he embedded his finger-nails in her cheeks, and the girl uttered an involuntary scream of nervous terror and pain that made the jury turn cold. "Look, gentlemen! Look in this poor creature's face! Does she look like a guilty woman? No! A thousand times no! Those are the tears of innocence and shame! Send her back to her aged father to comfort his old age! Let him clasp her in his arms and press his trembling lips to her hollow eyes! Let him wipe away her tears and bid her sin no more!" The jury acquitted, and Wellman, aghast, followed them downstairs to inquire how such a thing were possible. The jurors said that they had agreed to disclose nothing of their deliberations. "But," explained Wellman, "you see, in a way I am your attorney, and I want to know how to do better next time. She had offered to plead guilty if she could get off with twenty years!" The abashed jury slunk downstairs in silence and the secret of their deliberations remains as yet untold. In spite of such cases, where guilty women have been acquitted through maudlin sentiment or in response to popular clamor, nothing could be more erroneous than the idea that few women who are brought to the bar of justice are made to suffer for their offences. Thus, although no woman has suffered the death penalty in New York County in twenty years, the average number of convictions for crime is practically the same for women as for men in proportion to the number indicted. The last unreversed conviction of a woman for murder in the first degree was that of Chiara Cignarale, in May, 1887. Her sentence was commuted to life imprisonment. Since then thirty women have been actually tried before juries for homicide with the following results: Convicted of murder in first degree...........0 Acquitted "...................................7 " " murder in second degree...........3 " " manslaughter in first degree.....10 " " manslaughter in seconds degree...10 Total.......................................30 The percentage of convictions to acquittals is as follows: Convictions Acquittals Convictions Acquittals Per Cent Per Cent 1887-1907......23........7..........77..........23 It is distinctly interesting to compare this with the table showing the results of all the homicide trials for the past eight years irrespective of the sex of the defendants: Convictions Acquittals Convictions Acquittals Per Cent Per Cent 1900.............5.......12...........29.........71 1901............17.......17...........50.........50 1902............15.......11...........58.........42 1903............24........8...........75.........25 1904............19.......14...........58.........42 1905............18.......13...........58.........42 1906............21.......22...........49.........51 1907............16.......10...........62.........38 Total..........135......107.....Aver. 55...Aver. 45 The reader will observe that the percentage of convictions to acquittals of women defendants averages twenty-two per cent greater than the percentage for both sexes. A more elaborate table would show that where the defendants are men there are a greater proportionate number of acquittals, but more verdicts in higher degrees. A verdict of manslaughter in the second degree in the case of a man charged with murder is infrequent, but convictions of murder in the second degree are exceedingly common. The reason for the higher percentage of convictions of women is that fewer women who commit crime are prosecuted than men, and that they are rarely indicted unless they are clearly guilty of the degree of crime charged against them; while practically every man who is charged with homicide and who, it seems, may be found guilty is indicted for murder in the first degree. The trial of women for crime invariably arouses keen public interest, and the dethronement of a Czar, or the assassination of an Emperor, pales to insignificance before the prosecution of a woman for murder. Some of this interest is fictitious and stimulated merely by the yellow press, but a great deal of it is genuine. The writer remembers attending a dinner of gray-headed judges and counsellors during the trial of Anna Eliza, alias "Nan," Patterson, where one would have supposed that the lightest subject of conversation would be not less weighty than the constitutionality of an income tax, and finding to his astonishment that the only topic for which they showed any zest was whether "Nan" would be found guilty. One of the earliest, if not the earliest, record of a woman being held for murder is that of Agnes Archer, indicted by twelve men on April 4, 1435, sworn before the mayor and coroner to inquire as to the death of Alice Colynbourgh. The quaint old report begins in Latin, but "the pleadings" are set forth in the language of the day, as follows: "Agnes Archer, is that thy name? which answered, yes.... Thou art endyted that thou.... feloney moderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed.... I am not guilty of thoo dedys, ne noon of hem, God help me so.... How wylte thou acquite the?... By God and by my neighbours of this town." The subsequent history of Agnes is lost in obscurity, but since she had to procure but thirty-six compurgators who were prepared to swear that they believed her innocent, and as she was at liberty to choose these herself from her native village of Winchelsea, it is probable that she escaped.* * Cf. Thayer, as cited, supra. Fortunately the sight of a woman, save of the very lowest class, at the bar of justice is rare. The number of cases where women of good environment appear as defendants in the criminal courts in the course of a year may be numbered upon the fingers of a single hand, and, although the number of female defendants may equal ten per cent of the total number of males, not one-tenth of the women brought to the bar of justice have had the benefit of an honest bringing up and good surroundings. CHAPTER VIII. Tricks of the Trade "Tricks and treachery," said Benjamin Franklin, "are the practice of fools that have not wit enough to be honest." Had the kindly philosopher been familiar with all the exigencies of the criminal law he might have added a qualification to this somewhat general, if indisputably moral, maxim. Though it doubtless remains true as a guiding principle of life that "Honesty is the best policy," it would be an unwarrantable aspersion upon the intellectual qualities of the members of the criminal bar to say that the tricks by virtue of which they often get their clients off are "the practice of fools." On the contrary, observation would seem to indicate that in many instances the wiser, or at least the more successful, the practitioner of criminal law becomes, the more numerous and ingenious become the "tricks" which are his stock in trade. This must not be taken to mean that there are not high-minded and conscientious practitioners of criminal law, many of them financially successful, some filled with a noble humanitarian purpose, and some drawn to their calling by a sincere enthusiasm for the vocation of the advocate which, in these days of "business" law and commercial methods, reaches perhaps its highest form in the criminal courts. There are no more "tricks" practised in these tribunals than in the civil, but they are more ingenious in conception, more lawless in character, bolder in execution and less shamefaced in detection. Let us not be too hard upon our brethren of the criminal branch. Truly, their business is to "get their clients off." It is unquestionably a generally accepted principle that it is better that ninety-nine guilty men should escape than that one innocent man should be convicted. However much persons of argumentative or philosophic disposition may care to quarrel with this doctrine, they must at least admit that it would doubtless appear to them of vital truth were they defending some trembling client concerning whose guilt or innocence they were themselves somewhat in doubt. "Charity believeth all things," and the prisoner is entitled to every reasonable doubt, even from his own lawyer. It is the lawyer's business to create such a doubt if he can, and we must not be too censorious if, in his eagerness to raise this in the minds of the jury, he sometimes oversteps the bounds of propriety, appeals to popular prejudices and emotions, makes illogical deductions from the evidence, and impugns the motives of the prosecution. The district attorney should be able to take care of himself, handle the evidence in logical fashion, and tear away the flimsy curtain of sentimentality hoisted by the defence. These are hardly "tricks" at all, but sometimes under the name of advocacy a trick is "turned" which deserves a much harsher name. Not long ago a celebrated case of murder was moved for trial after the defendant's lawyer had urged him in vain to offer a plea of murder in the second degree. A jury was summoned and, as is the usual custom in such cases, examined separately on the "voir dire" as to their fitness to serve. The defendant was a German, and the prosecutor succeeded in keeping all Germans off the jury until the eleventh seat was to be filled, when he found his peremptory challenges exhausted. Then the lawyer for the prisoner managed to slip in a stout old Teuton, who replied, in answer to a question as to his place of nativity, "Schleswig-Holstein." The lawyer made a note of it, and, the box filled, the trial proceeded with unwonted expedition. The defendant was charged with having murdered a woman with whom he had been intimate, and his guilt of murder in the first degree was demonstrated upon the evidence beyond peradventure. At the conclusion of the case, the defendant not having dared to take the stand, the lawyer arose to address the jury in behalf of what appeared a hopeless cause. Even the old German in the back row seemed plunged in soporific inattention. After a few introductory remarks the lawyer raised his voice and in heart-rending tones began: "In the beautiful county of Schleswig-Holstein sits a woman old and gray, waiting the message of your verdict from beyond the seas." (Number 11 opened his eyes and looked at the lawyer as if not quite sure of what he had heard.) "There she sits" (continued the attorney), "in Schleswig-Holstein, by her cottage window, waiting, waiting to learn whether her boy is to be returned to her outstretched arms." (Number 11 sat up and rubbed his forehead.) "Had the woman, who so unhappily met her death at the hands of my unfortunate client, been like those women of Schleswig-Holstein--noble, sweet, pure, lovely women of Schleswig-Holstein--I should have naught to say to you in his behalf." (Number 11 leaned forward and gazed searchingly into the lawyer's face.) "But alas, no! Schleswig-Holstein produces a virtue, a loveliness, a nobility of its own." (Number 11 sat up and proudly expanded his chest.) When, after about an hour or more of Schleswig-Holstein the defendant's counsel surrendered the floor to the district attorney, the latter found it quite impossible to secure the slightest attention from the eleventh juror, who seemed to be spending his time in casting compassionate glances in the direction of the prisoner. In due course the jury retired, but had no sooner reached their room and closed the door than the old Teuton cried, "Dot man iss not guilty!" The other eleven wrestled with him in vain. He remained impervious to argument for seventeen hours, declining to discuss the evidence, and muttering at intervals, "Dot man iss not guilty!" The other eleven stood unanimously for murder in the first degree, which was the only logical verdict that could possibly have been returned upon the evidence. At last, worn out with their efforts, they finally induced the old Teuton to compromise with them on a verdict of manslaughter. Wearily they straggled in, the old native of Schleswig-Holstein bringing up the rear, bursting with exultation and with victory in his eye. "Gentlemen of the jury, have you agreed upon a verdict?" inquired the clerk. "We have," replied the foreman. "How say you, do you find the defendant guilty or not guilty?" "Guilty--of manslaughter," returned the foreman feebly. The district attorney was aghast at such a miscarriage of justice, and the judge showed plainly by his demeanor his opinion of such a verdict. But the old inhabitant of Schleswig-Holstein cared for this not a whit. The old mother in Schleswig-Holstein might still clasp her son in her arms before she died! The defendant was arraigned at the bar. Then for the first time, and to the surprise and disgust of No. 11, he admitted in answer to the questions of the clerk that his parents were both dead and that he was born in Hamburg, a town for whose inhabitants the old juryman had, like others of his compatriots, a constitutional antipathy. The "tricks" of the trade as practised by the astute and unscrupulous criminal lawyer vary with the stage of the case and the character of the crime charged. They are also adapted with careful attention to the disposition, experience and capacity of the particular district attorney who happens to be trying the case against the defendant. An illustration of one of these occurred during the prosecution of a bartender for selling "spirituous liquors" without a proper license. He was defended by an old war-horse of the criminal bar famous for his astuteness and ability to laugh a case out of court. The assistant district attorney who appeared against him was a young man recently appointed to office, and who was almost overcome at the idea of trying a case against so well known a practitioner. He had personally conducted but very few cases, had an excessive conception of his own dignity, and dreaded nothing so much as to appear ridiculous. Everything, except the evidence, favored the defendant, who, however, was, beyond every doubt, guilty of the offence charged. The young assistant put in his case, calling his witnesses one by one, and examining them with the most feverish anxiety lest he should forget something. The lawyer for the defence made no cross-examination and contented himself with smiling blandly as each witness left the stand. The youthful prosecutor became more and more nervous. He was sure that something was wrong, but he couldn't just make out what. At the conclusion of the People's case the lawyer inquired, with a broad grin, "if that was all." The young assistant replied that it was, and that, in his opinion, it was "quite enough." "Let that be noted by the stenographer," remarked the lawyer. "Now, if your Honors please," he continued, addressing the three judges of the Special Sessions, "you all know how interested I am to see these young lawyers growing up. I like to help 'em along--give 'em a chance--teach 'em a thing or two. I trust it may not be out of place for me to say that I like my young friend here and think he tried his case very well. But he has a great deal to learn. I'm always glad, as I said, to give the boys a chance--to give 'em a little experience. I shall not put my client upon the stand. It is not necessary. The fact is," turning suddenly to the unfortunate assistant district attorney--"my client has a license." He drew from his pocket a folded paper and handed it to the paralyzed young attorney with the harsh demand: "What do you say to that?" The assistant took the paper in trembling fingers and perused it as well as he could in his unnerved condition. "Mr. District Attorney," remarked the presiding justice dryly (which did not lessen the confusion of the young lawyer), "is this a fact? Has the defendant a license?" "Yes, your Honors," replied the assistant; "this paper seems to be a license." "Defendant discharged!" remarked the court briefly. The prisoner stepped from the bar and rapidly disappeared though the door of the court-room. After enough time had elapsed to give him a good start and while another case was being called, the old lawyer leaned over to the assistant and remarked with a chuckle "I am always glad to give the boys a chance--help 'em along--teach 'em a little. That license was a beer license!" BEFORE TRIAL To begin at the beginning, whenever a person has been arrested, charged with crime, and has secured a criminal lawyer to defend him, the first move of the latter is naturally to try and nip the case in the bud by inducing the complaining witness to abandon the prosecution. In a vast number of cases he is successful. He appeals to the charity of the injured party, quotes a little of the Scriptures and the "Golden Rule," pictures the destitute condition of the defendant's family should he be cast into prison, and the dragging of an honored name in the gutter if he should be convicted. Few complainants have ever before appeared in a police court, and are filled with repugnance at the rough treatment of prisoners and the suffering which they observe upon every side. After they have seen the prisoner emerge from the cells, pale, hollow-eyed, bedraggled, and have beheld the tears of his wife and children as they crowd around the husband and father, they begin to realize the horrible consequences of a criminal prosecution and to regret that they ever took the steps which have brought the wrong-doer where he is. The district attorney had not yet taken up the case; the prosecution up to this point is of a private character; there are loud promises of "restitution" and future good behavior from the defendant, and the occasion is ripe for the lawyer to urge the complainant to "temper justice with mercy" and withdraw "before it be too late and the poor man be ruined forever." If the complainant is, however, bent on bringing the defendant to justice and remains adamantine to the arguments of the lawyer and the tears of the defendant's family connections, it remains for the prisoner's attorney to endeavor to get the case adjourned "until matters can be adjusted"--to wit, restitution made if money has been stolen, or doctors' bills paid if a head has been cracked, with perhaps another chance of "pulling off" the complainant and his witnesses. Failing in an attempt to secure an adjournment, two courses remain open: first, to persuade the court that the matter is a trivial one arising out of petty spite, is all a mistake, or that at best it is a case of "disorderly conduct" (and thus induce the judge to "turn the case out" or inflict some trifling punishment in the shape of a fine); or, second, if it be clear that a real crime has been committed, to clamor for an immediate hearing in order, if it be secured, to subject the prosecution's witnesses to a most exhaustive cross-examination, and thus get a clear idea of just what evidence there is against the accused. At the conclusion of the complainant's case, if it appear reasonably certain that the magistrate will "hold" the prisoner for the action of a superior court, the lawyer will then "waive further examination," or, in other words, put in no defence, preferring the certainty of having to face a jury trial to affording in prosecution an opportunity to discover exactly what defence will be put in and to secure evidence in advance of the trial to rebut it. Thus it rarely happens in criminal cases of importance that the district attorney knows what the defence is to be until the defendant himself takes the stand, and, by "waiving further examination" in the police court, the astute criminal attorney may select at his leisure the defence best suited to fit in with and render nugatory the prosecution's evidence. The writer has frequently been told by the attorney for a defendant on trial for crime that "the defence has not yet been decided upon." In fact, such statements are exceedingly common. In many courts the attitude of all parties concerned seems to be that the defendant will put up a perjured defence (so far as his own testimony is concerned, at any rate) as a matter of course, and that this is hardly to be taken against him. On the other hand, if a guilty defendant has been so badly advised as to give his own version of the case before the magistrate in the first instance, it requires but slight assiduity on the part of the district attorney to secure, in the interval between the hearing and the jury trial, ample evidence to rebut it. As illustrating merely the fertility and resourcefulness of some defendants (or perhaps their counsel), the writer recalls a case which he tried in the year 1902 where the defendant, a druggist, was charged with manslaughter in having caused the death of an infant by filling a doctor's prescription for calomel with morphine. It so happened that two jars containing standard pills had been standing side by side upon an adjacent shelf, and, a prescription for morphine having come in at the same time as that for the calomel, the druggist had carelessly filled the morphine prescription with calomel, and the calomel prescription with morphine. The adult for whom the morphine had been prescribed recovered immediately under the beneficent influence of the calomel, but the baby for whom the calomel had been ordered died from the effects of the first morphine pill administered. All this had occurred in 1897--five years before. The remainder of the pills had disappeared. Upon the trial (no inconsistent contention having been entered in the police court) the prisoner's counsel introduced six separate defences, to wit: That the prescription had been properly filled with calomel and that the child had died from natural causes, the following being suggested. 1. Acute gastritis. 2. Acute nephritis. 3. Cerebro-spinal meningitis. 4. Fulminating meningitis. 5. That the child had died of apomorphine, a totally distinct poison. 6. That it had received and taken calomel, but that, having eaten a small piece of pickle shortly before, the conjunction of the vegetable acid with the calomel had formed, in the child's stomach, a precipitate of corrosive sublimate, from which it had died. These were all argued with great learning. During the trial the box containing the balance of the pills, which the defence contended were calomel, unexpectedly turned up. It has always been one of the greatest regrets of the writer's life that he did not then and there challenge the defendant to eat one of the pills and thus prove the good faith of his defence. This was one of the very rare cases where a chemical analysis has been conducted in open court. The chemist first tested a standard trade morphine pill with sulphuric acid, so that the jury could personally observe the various color reactions for themselves. He then took one of the contested pills and subjected it to the same test. The first pill had at once turned to a brilliant rose, but the contested pill, being antiquated, "hung fire," as it were, for some seconds. As nothing occurred, dismay made itself evident on the face of the prosecutor, and for a moment he felt that all was lost. Then the five-year-old pill slowly turned to a faint brown, changed to a yellowish red, and finally broke into an ardent rose. The jury settled back into their seats with an audible "Ah!" and the defendant was convicted. Let us return, however, to that point in the proceedings where the defendant has been "held for trial" by the magistrate. The prisoner's counsel now endeavors to convince the district attorney that "there is nothing in the case," and continues unremittingly to work upon the feelings of the complainant. If he finds that his labors are likely to be fruitless in both directions, he may now seek an opportunity to secure permission for his client to appear before the grand jury and explain away, if possible, the charge against him. We will assume, however, that, in spite of the assiduity of his lawyer, the prisoner has at last been indicted and is awaiting trial. What can be done about it? Of course, if the case could be indefinitely adjourned, the complainant or his chief witness might die or move away to some other jurisdiction, and if the indictment could be "pigeon-holed" the case might die a natural death of itself. Indictments, however, in New York County, whatever may be the case elsewhere, are no longer "pigeon-holed," and they cannot be adequately "lost," since certified copies are made of each. The next step, therefore, is to secure as long a time as possible before trial. Usually a prisoner has nothing to lose and everything to gain by delay, and the excuses offered for adjournment are often ingenious in the extreme. The writer knows one criminal attorney who, if driven to the wall in the matter of excuses, will always serenely announce the death of a near relative and the obligation devolving upon him to attend the funeral. Another, as a last resort, regularly is attacked in open court by severe cramps in the stomach. If the court insists on the trial proceeding, he invariably recovers. Of course, there are many legitimate reasons for adjourning cases which the prosecution is powerless to combat. The most effective method invoked to secure delay, and one which it is practically useless for the district attorney to oppose, is an application "to take testimony" upon commission in some distant place. Here again it must be borne in mind that such applications are often legitimate and proper and should be granted in simple justice to the defendant. Although this right to take the testimony of absent witnesses is confined in New York State to the defendant and does not extend to the prosecution, and is undoubtedly often the subject of much abuse, it not infrequently is the cause of saving an innocent man. An example of this was the case of William H. Ellis, recently brought into the public eye through his connection with the treaty between the United States Government and King Menelik of Abyssinia. Ellis was accused in 1901 by a young woman of apparently excellent antecedents and character of a serious crime. Prior to his indictment a colored man employed in his office (the alleged scene of the crime) disappeared. When the case was moved for trial, Ellis, through his attorneys, moved for a commission to take the testimony of this absent, but clearly material, witness in one of the remote States of Mexico--a proceeding which would require a journey of some two weeks on muleback, beyond the railway terminus. The district attorney, in view of the peculiarly opportune disappearance of this person from the jurisdiction, strenuously opposed the application and hinted at collusion between Ellis and the witness. The application, however, was granted, and a delay of over a month ensued. During that time evidence was procured by the counsel of the prisoner showing conclusively that the complaining witness was mentally unsound and had made similar and groundless charges against others. The indictment was at once dismissed. But such delays are not always so righteously employed. There is a story told of a case where a notorious character was charged with the unusual crime of "mayhem"--biting off another man's finger. The defendant's counsel secured adjournment after adjournment--no one knew why. At last the case was moved for trial and the prosecution put in its evidence, clearly showing the guilt of the prisoner. At the conclusion of the People's testimony, the lawyer for the defendant arose and harshly stigmatized the story of the complainant as a "pack of lies." "I will prove to you in a moment, gentlemen," exclaimed he to the jury, "how absurd is this charge against my innocent client. Take the stand!" The prisoner arose and walked to the witnesschair. "Open your mouth!" shouted the lawyer. The defendant did so. He had not a tooth in his head. The delay had been advantageously employed. The importance of mere delay to a guilty defendant cannot well be overestimated. "You never can tell what may happen to knock a case on the head." For this reason a sufficiently paid and properly equipped counsel will run the whole gamut of criminal procedure, and: 1. Demur to the indictment. 2. Move for an inspection of the minutes of the proceedings before the grand jury. 3. Move to dismiss the indictment for lack of sufficient evidence before that body. 4. Move for a commission to take testimony. 5. Move for a change of venue. 6. Secure, where possible, a writ of habeas corpus and a stay of proceedings from some federal judge on the ground that his client is confined without due process of law. All these steps he will take seriatim, and some cases have been delayed for as much as two years by merely invoking "legitimate" legal processes. In point of fact it is quite possible for any defendant absolutely to prevent an immediate trial provided he has the services of vigilant counsel, for these are not the only proceedings of which he can avail himself. A totally distinct method is for the defendant to secure bail, and, after securing as many adjournments as possible, simply flee the jurisdiction. He will then remain away until the case is hopelessly stale, or he no longer fears prosecution. In default of all else he may go "insane" just before the case is moved for trial. This habit of the criminal rich when brought to book for their misdeeds is too well known to require comment. All that is necessary is for a sufficient number of "expert" alienists to declare it to be their opinion that the defendant is mentally incapable of understanding the proceedings against him or of preparing his defence, and he is shifted off to a "sanitarium" until some new sensation occupies the public mind and his offences are partially forgotten. In this way justice is often thwarted and the law cheated of its victim, but unless fortune favors him, sooner or later the indicted man must return for trial and submit the charge against him to a jury. But if this happens, even if he be guilty, all hope need not be lost. There are still "tricks of the trade" which may save him from the clutches of the law. AT THE TRIAL What can be done when at last the prisoner who has fought presistently for adjournment has been forced to face the witnesses against him and submit the evidence to a jury of peers? Let us assume further that he has been "out on bail," with plenty of opportunity to prepare his defence and lay his plans for escape. When the case is finally called and the defendant takes his seat at the bar after a lapse of anywhere from six months to a year or more after his arrest, the first question for the district attorney to investigate is whether or no the person presenting himself for trial be in point of fact the individual mentioned in the indictment. This is often a difficult matter to determine. "Ringers"--particularly in the magistrates' courts--are by no means unknown. Sometimes they appear even in the higher courts. If the defendant be an ex-convict or a well-known crook, his photograph and measurements will speedily remove all doubt upon the subject, but if he be a foreigner (particularly a Pole, Italian or a Chinaman), or even merely one of the homogeneous inhabitants of the densely-populated East Side of New York, it is sometimes a puzzling problem. "Mock Duck," the celebrated Highbinder of Chinatown, who was set free after two lengthy trials for murder, was charged not long ago with a second assassination. He was pointed out to the police by various Chinamen, arrested and brought into the Criminal Courts building for identification, but for a long time it was a matter of uncertainty whether friends of his (masquerading as enemies) had not surrendered a substitute. Luckily the assistant district attorney who had prosecuted this wily and dangerous Celestial in the first instance was able to identify him. Many years ago, during the days of Fernando Wood, a connection of his was reputed to be the power behind the "policy" business in New York City--the predecessor of the notorious Al Adams. A "runner" belonging to the system having been arrested and policy slips having been found in his possession, the reigning Policy King retained a lawyer of eminent respectability to see what could be done about it. The defendant was a particularly valuable man in the business and one for whom his employer desired to do everything in his power. The lawyer advised the defendant to plead guilty, provided the judge could be induced to let him off with a fine, which the policy King agreed to pay. Accordingly, the lawyer visited the judge in his chambers and the latter practically promised to inflict only a fine in case the defendant, whom we will call, out of consideration for his memory, "Johnny Dough," should plead guilty. Unfortunately for this very satisfactory arrangement, the judge, now long since deceased, was afflicted with a serious mental trouble which occasionally manifested itself in peculiar losses of memory. When "Johnny Dough," the Policy King's favorite, was arraigned at the bar and, in answer to the clerk's interrogation, stated that he withdrew his plea of "not guilty" and now stood ready to plead "guilty," the judge, to the surprise and consternation of the lawyer, the defendant, and the latter's assembled friends, turned upon him and exclaimed: "Ha! So you plead guilty, do you? Well, I sentence you to the penitentiary for one year, you miserable scoundrel!" Utterly overwhelmed, "Johnny Dough!" was led away, while his lawyer and relatives retired to the corridor to express their opinion of the court. About three months later the lawyer, who had heard nothing further concerning the case, happened to be in the office of the district attorney, when the latter looked up with a smile and inquired: "Well, how's your client-Mr. Dough?" "Safe on the Island, I suppose," replied the lawyer, "Not a bit of it," returned the district attorney. "He never went there." "What do you mean?" inquired the lawyer. "I heard him sentenced to a year myself!" "I can't help that," said the district attorney. "The other day a workingman went down to the Island to see his old friend 'Johnny Dough.' There was only one 'Johnny Dough' on the lists, but when he was produced the visitor exclaimed: 'That Johnny Dough! That ain't him at all, at all!' The visitor departed in disgust. We instituted an investigation and found that the man at the Island was a 'ringer.'" "You don't say!" cried the lawyer. "Yes," continued the district attorney. "But that is not the best part of it. You see, the 'ringer' says he was to get two hundred dollars per month for each month of Dough's sentence which he served. The prison authorities have refused to keep him any longer, and now he is suing them for damages, and is trying to get a writ of mandamus to compel them to take him back and let him serve out the rest of the sentence!" Probably the most successful instance on record of making use of a dummy occurred in the early stages of the now famous Morse-Dodge divorce tangle. Dodge had been the first husband of Mrs. Morse, and from him she had secured a divorce. A proceeding to effect the annulment of her second marriage had been begun on the ground that Dodge had never been legally served with the papers in the original divorce case--in other words, to establish the fact that she was still, in spite of her marriage to Morse, the wife of Dodge. Dodge appeared in New York and swore that he had never been served with any papers. A well-known and reputable lawyer, on the other hand, Mr. Sweetser, was prepared to swear that he had served them personally upon Dodge himself. The matter was sent by the court to a referee. At the hour set for the hearing in the referee's office, Messrs. Hummel and Steinhardt arrived early, in company with a third person, and took their seats with their backs to a window on one side of the table, at the head of which sat the referee, and opposite ex-Judge Fursman, attorney for Mrs. Morse. Mr. Sweetser was late. Presently he appeared, entered the office hurriedly, bowed to the referee, apologized for being tardy, greeted Messrs. Steinhardt and Hummel, and then, turning to their companion, exclaimed: "How do you do, Mr. Dodge?" It was not Dodge at all, but an acquaintance of one of Howe & Hummel's office force who had been asked to accommodate them. Nothing had been said, no representations had been made, and Sweetser had voluntarily walked into a trap. The attempt to induce witnesses to identify "dummies" is frequently made by both sides in criminal cases, and under certain circumstances is generally regarded as professional. Of course, in such instances no false suggestions are made, the witness himself being relied upon to "drop the fall." In case he does identify the wrong person, he has, of course, invalidated his entire testimony. Not in one case out of five hundred, however, is any attempt made to substitute a "dummy" for the real defendant, the reason being, presumably, the prejudice innocent people have against going to prison even for a large reward. The question resolves itself, therefore, into how to get the client off when he is actually on trial. First, how can the sympathies of the jury be enlisted at the very start? Weeping wives and wailing infants are a drug on the market. It is a friendless man indeed, even if he be a bachelor, who cannot procure for the purposes of his trial the services of a temporary wife and miscellaneous collection of children. Not that he need swear that they are his! They are merely lined up along a bench well to the front of the court-room--the imagination of the juryman does the rest. A defendant's counsel always endeavors to impress the jury with the idea that all he wants is a fair, open trial--and that he has nothing in the world to conceal. This usually takes the form of a loud announcement that he is willing "to take the first twelve men who enter the box." Inasmuch as the defence needs only to secure the vote of one juryman to procure a disagreement, this offer is a comparatively safe one for the defendant to make, since the prosecutor, who must secure unanimity on the part of the jury (at least in New York State), can afford to take no chances of letting an incompetent or otherwise unfit talesman slip into the box. Caution requires him to examine the jury in every important case, and frequently this ruse on the part of the defendant makes it appear as if the State had less confidence in its case than the defence. This trick was invariably used by the late William F. Howe in all homicide cases where he appeared for the defence. The next step is to slip some juryman into the box who is likely for any one of a thousand reasons to lean toward the defence--as, for example, one who is of the same religion, nationality or even name as the defendant. The writer once tried a case where the defendant was a Hebrew named Bauman, charged with perjury. Mr. Abraham Levy was the counsel for the defendant. Having left an associate to select the jury the writer returned to the courtroom to find that his friend had chosen for foreman a Hebrew named Abraham Levy. Needless to say, a disagreement of the jury was the almost inevitable result. The same lawyer not many years ago defended a client named Abraham Levy. In like manner he managed to get an Abraham Levy on the jury, and on that occasion succeeded in getting his client off scot-free. No method is too far-fetched to be made use of on the chance of "catching" some stray talesman. In a case defended by Ambrose Hal. Purdy, where the deceased had been wantonly stabbed to death by a blood-thirsty Italian shortly after the assassination of President McKinley, the defence was interposed that a quarrel had arisen between the two men owing to the fact that the deceased had loudly proclaimed anarchistic doctrines and openly gloried in the death of the President, that the defendant had expostulated with him, whereupon the deceased had violently attacked the prisoner, who had killed him in self-defence. The whole thing was so thin as to deceive nobody, but Mr. Purdy, as each talesman took the witness-chair to be examined on the voir dire, solemnly asked each one: "Pardon me for asking such a question at this time--it is only my duty to my unfortunate client that impels me to it--but have you any sympathy with anarchy or with assassination?" The talesman, of course, inevitably replied in the negative. "Thank you, sir," Purdy would continue: "In that event you are entirely acceptable!" Not long ago two shrewd Irish attorneys were engaged in defending a client charged with an atrocious murder. The defendant had the most Hebraic cast of countenance imaginable, and a beard that reached to his waist. Practically the only question which these lawyers put to the different talesmen during the selection of the jury was, "Have you any prejudice against the defendant on account of his race?" In due course they succeeded in getting several Hebrews upon the jury who managed in the jury-room to argue the verdict down from murder to manslaughter in the second degree. As the defendant was being taken across the bridge to the Tombs he fell on his knees and offered up a heartfelt prayer such as could only have emanated from the lips of a devout Roman Catholic. Lawyers frequently secure the good-will of jurors (which may last throughout the trial and show itself in the verdict) by some happy remark during the early stages of the case. During the Clancy murder trial each side exhausted its thirty peremptory challenges and also the entire panel of jurors in filling the box. At this stage of the case the foreman became ill and had to be excused. No jurors were left except one who had been excused by mutual consent for some trifling reason, and who out of curiosity had remained in court. He rejoiced in the name of Stone. Both sides then agreed to accept him as foreman provided he was still willing to serve, and this proving to be the case he triumphantly made his way towards the box. As he did so, the defendant's counsel remarked: "The Stone which the builders refused is become the head Stone of the corner." The good-will generated by this meagre jest stood him later in excellent stead. In default of any other defence, some criminal attorneys have been known to seek to excite sympathy for their helpless clients by appearing in court so intoxicated as to be manifestly unable to take care of the defendant's interests, and prisoners have frequently been acquitted simply by virtue of their lawyer's obvious incapacity. The attitude of the jury in such cases seems to be that the defendant has not had a "fair show" and so should be acquitted anyway. Of course, this appeals to the juryman's sympathies and he overlooks the fact that by his action the prosecution is given no "show" at all. Generally speaking, the advice credited to Mr. Lincoln, as being given by him to a young attorney who was about to defend a presumably guilty client, is religiously followed by all criminal practitioners: "Well, my boy, if you've got a good case, stick to the evidence; if you've got a weak one, go for the People's witnesses; but--if you've got no case at all, hammer the district attorney!" As a rule, however, criminal lawyers are not in a position to "hammer" the prosecuting officer, but endeavor instead to suggest by innuendo or even open declaration his bias and unfairness. "Be fair, Mr.--!" is the continual cry. "Try to be fair!" The defendant, whether he be an ex-convict or thirty-year-old professional thief, is always "this poor boy," and, as he is not compelled by law to testify, and as his failure to do so must not be weighed against him by the jury, he frequently walks out of court a free man, because the jury believe from the lawyer's remarks that he is in fact a mere youthful offender of hitherto good reputation and deserves another chance. By all odds the greatest abuse in criminal trials lies in the open disregard of professional ethics on the part of lawyers who deliberately supply of themselves, in their opening and closing addresses to the jury, what incompetent bits of evidence, true or false, they have not been able to establish by their witnesses. There is no complete cure for this, for even if the judge rebukes the lawyer and directs the jury to disregard what he has said as "not being in the evidence," the damage has been done, the statement still lingering in the jury's mind without any opportunity on the part of the prosecutor to disprove it. There is no antidote for such jury-poison. A shyster lawyer need but to keep his client off the stand and he can saturate the jury's mind with any facts concerning the defendant's respectability and history which his imagination is powerful enough to supply. On such occasions an ex-convict with no relatives may become a "noble fellow, who, rather than have his family name tainted by being connected with a criminal trial, is willing to risk even conviction"--"a veteran of the glorious war which knocked the shackles from the slave"--"the father of nine children"--"a man hounded by the police." The district attorney may shout himself hoarse, the judge may pound his gavel in righteous indignation, the lawyer may apologize because in the zeal with which he feels inspired for his client's cause he perhaps (which only makes matters worse) has overstepped the mark--but some juryman may suppose that, after all, the prisoner is a hero or nine times a father. There is one notorious attorney who poses as a philanthropist and who invariably promises the jury that if they acquit his client he will personally give him employment. If he has kept half of his promises he must by this time have several hundred clerks, gardeners, coachmen, choremen and valets. In like manner attorneys of this feather will deliberately state to the jury that if the defendant had taken the stand he would have testified thus and so; or that if certain witnesses who have not appeared (and who perhaps in reality do not exist at all) had testified they would have established various facts. Such lawyers should be locked up or disbarred; courts are powerless to negative entirely their dishonesty in individual cases. Clever counsel, of course, habitually make use of all sorts of appeals to sympathy and prejudice. In one case in New York in which James W. Osborne appeared as prosecutor the defendant wore a G.A.R. button. His lawyer managed to get a veteran on the jury. Mr. Osborne is a native of North Carolina. The defendant's counsel, to use his own words, "worked the war for all it was worth," and the defendant lived, bled and died for his country and over and over again. In summing up the case, the attorney addressed himself particularly to the veteran on the back row, and, after referring to numerous imaginary engagements, exclaimed: "Why, gentlemen, my client was pouring out his life blood upon the field of battle when the ancestors of Mr. Osborne were raising their hands against the flag!" For once Mr. Osborne had no adequate words to reply. By far the most effective and dangerous "trick" employed by guilty defendants is the deliberate shouldering of the entire blame by one of two persons who are indicted together for a single offence. A common example of this is where two men are caught at the same time bearing away between them the spoil of their crime and are jointly indicted for "criminally receiving stolen property." Both, probably, are "side partners," equally guilty, and have burglarized some house or store in each other's company. They maybe old pals and often have served time together. They agree to demand separate trials, and that whoever is convicted first shall assume the entire responsibility. Accordingly, A. is tried and, in spite of his asseveration that he is innocent and that the "stuff" was given him by a strange man, who paid him a dollar to transport it to a certain place, is properly convicted.* The bargain holds. B.'s case is moved for trial and he claims never to have seen A. in his life before the night in question, and that he volunteered to help the latter carry a bundle which seemed to be too heavy for him. He calls A., who testifies that this is so--that B., whom he did not know from Adam, tendered his services and that he availed himself of the offer. The jury are usually prone to acquit, as the weight of evidence is clearly with the defendant. * The defence that the accused innocently received the stolen property into his possession was a familiar one even in 1697, as appears by the following record taken from the Minutes of the Sessions. It would seem that it was even then received with some incredulity. CITY & COUNTY OF NEW YORK: ss: At a Meeting of the Justices of the Peace for the said City & County at the City Hall of the said City on Thursday the 10th day of June Anno Dom 1697. PRESENT. William Morrott \ Esquires James Graham / quorum Jacobus Cortlandt \ Esquires Grandt Schuylor } Justices Leonard Lowie / of the Peace Jacobus Cortlandt, Esq., one of his Majestys justices of the peace for ye said City and County Informed the Kings justices that a peace of Linnen Ticking was taken out of his Shop this Morning. That he was informed a Negro Slave Named Joe was seen to take the same whereupon the said Jacobus Van Cortlandt Pursued the said, Joe and apprehended him and found the said peice of ticking in his custody and had the said Negro Joe penned in the cage, upon which the said Negro man being brought before the said Justices said he did not take the said ticking out of the Shop window but that a Boy gave itt to him, but upon Examination of Sundry other Evidence itt Manifestly Appeareth to the said Justices that the said Negro man Named Joe, did steal the said piece of linnen ticking out of the Shop Window of the said Jacobus Van Cortlandt and thereupon doe order the punishment of the said Negro as follows vigt. That the said Negro man Slave Named Joe shall be forthwith by the Common whipper of the City or some of the Sheriffs officers art the Cage be stripped Naked from the Middle upwards and then and there shall be tyed to the tayle of a Cart and being soe stripped and tyed shah be Drove Round the City and Receive upon his naked body art the Corner of each Street nine lashes until he return to the place from whence he sett out and that he afterwards Stand Committed to the Sheriffs custody till he pay his fees. Many changes are rung upon this device. There is said to have been a case in which the defendant was convicted of murder in the first degree and sentenced to be executed. It was one of circumstantial evidence and the verdict was the result of hours of deliberation on the part of the jury. The prisoner had stoutly denied knowing anything of the homicide. Shortly before the date set for the execution, another man turned up who admitted that he had committed the crime and made the fullest sort of a confession. A new trial was thereupon granted by the Appellate Court, and the convict, on the application of the prosecuting attorney, was discharged and quickly made himself scarce. It then developed that apart from the prisoner's own confession there was practically nothing to connect him with the crime. Under a statute making such evidence obligatory in order to render a confession sufficient for a conviction, the prisoner had to be discharged. In the case of Mabel Parker, a young woman of twenty, charged with the forgery of a large number of checks, many of them for substantial amounts, her husband made an almost successful attempt to procure her acquittal by means of a new variation of the old game. Mrs. Parker, after her husband had been arrested for passing one of the bogus checks, had been duped by a detective into believing that the latter was a fellow criminal who was interested in securing Parker's release. In due course she took this supposed friend into her confidence, made a complete confession, and illustrated her skill by impromptu copies of her forgeries from memory upon a sheet of pad paper. This the detective secured and then arrested her. She was indicted for forging the name Alice Kauser to a check upon the Lincoln National Bank. On her trial she denied having done so, and claimed that the detective had found the sheet containing her supposed handwriting in her husband's desk, and that she had written none of the alleged copies upon it. The door of the courtroom then opened, and James Parker was led to the bar and pleaded guilty to the forgery of the check in question. (For the benefit of the layman it should be explained that as a rule indictments for forgery also contain a count for "uttering.") He then took the stand, admitted that he had not only uttered but had also written the check, and swore that it was his handwriting which, appeared on the pad. The prosecutor was nonplussed. If he should ask the witness to prove his capacity to forge such a check from memory on the witness-stand, the latter, as he had ample time to practise the signature while in prison, would probably succeed in doing so. If, on the other hand, he should not ask him to write the name, the defendant's counsel would argue to the jury that he was afraid to do so. The district attorney therefore took the bull by the horns and challenged Parker to make from memory a copy of the signature, and, much as he had suspected, the witness produced a very good one. An acquittal seemed certain, and the prosecutor was at his wit's end to devise a means to meet this practical demonstration that the husband was in fact the forger. At last it was suggested to him that it would be comparatively easy to memorize such a signature, and acting on this hint he found that after half an hour's practice he was able to make almost as good a forgery as Parker. When therefore it came time for him to address the jury he pointed out the fact that Parker's performance on the witness-stand really established nothing at all--that any one could forge such a signature from memory after but a few minutes' practice. "To prove to you how easily this can be done," said he, "I will volunteer to write a better Kauser signature than Parker did." He thereupon seized a pen and began to demonstrate his ability to do so. Mrs. Parker, seeing the force of this ocular demonstration, grasped her counsel's arm and cried out: "For God's sake, don't let him do it!" The lawyer objected, the objection was sustained, but the case was saved. Why, the jury argued, should the lawyer object unless the making of such a forgery were in fact an easy matter? In desperate cases, desperate men will take desperate chances. The traditional instance where the lawyer, defending a client charged with causing the death of another by administering poisoned cake, met the evidence of the prosecution's experts with the remark: "This is my answer to their testimony!" and calmly ate the balance of the cake, is too familiar to warrant detailed repetition. The jury retired to the jury-room and the lawyer to his office, where a stomach pump quickly put him out of danger. The jury is supposed to have acquitted. Such are some of the tricks of the legal trade as practised in its criminal branch. Most of them are unsuccessful and serve only to relieve the gray monotony of the courts. When they achieve their object they add to the interest of the profession and teach the prosecutor a lesson by which, perhaps, he may profit in the future. CHAPTER IX. What Fosters Crime To lack of regard for law is mainly due the existence of crime, for a perfect respect for law would involve entire obedience to it. Yet crime continues and from time to time breaks forth to such an extent as to give ground for a popular impression that it is increasing out of proportion to our growth as a nation. Now, while it may be fairly questioned whether there is any actual increase of crime in the United States, and while, on the contrary, observation would seem to show an actual decrease, not only in crimes of violence, but in all major crimes, there nevertheless exists to-day a widespread contempt for the criminal law which, if it has not already stimulated a general increase of criminal activity, is likely to do so in the future. This contempt for the law is founded not only upon actual conditions, but also upon belief in conditions erroneously supposed to exist, which is fostered by current literature and by the sensational press. Thus, as has already been pointed out, while it is popularly believed that women are almost never convicted of crime, and particularly of homicide, the fact is, at least in New York County, that a much greater proportion of women charged with murder are convicted than of men charged with the same offence. To read the newspapers one would suppose that the mere fact that the defendant was a female instantly paralyzed the minds of the jury and reduced them to a state of imbecility. The inevitable result of this must be to encourage lawlessness among the lower orders of women and to lead them to look upon arrest as a mere formality without ultimate significance. The writer recalls trying for murder a negress who had shot her lover not long after the discharge of a notorious female defendant in a recent spectacular trial in New York. When asked why she had killed him she replied: "Oh, Nan Patterson did it and got off." This is not offered as a reflection upon the failure of the jury to reach a verdict in the Patterson case, but as an illuminating illustration of the concrete and immediate effect of all actual or supposed failures of justice. A belief that the course of criminal justice is slow and uncertain, that the chances are all in favor of the defendant, and that he has but to resort to technicalities to secure not only indefinite delay but generally ultimate freedom, breeds an indifference amounting almost to arrogance among law-breakers, powerful and otherwise, and a painful yet hopeless conviction among honest men that nothing can prevent the wicked from flourishing. Honesty seems no longer even a good policy, and the young business man resorts to sharp practices to get ahead of his unscrupulous competitor. In some localities the uncertainty and delay attendant upon the execution of the law is the alleged and maybe the actual, cause of the community crime of lynching. Even where the administration of justice is seen at its best many people who have been wronged believe that there is so little likelihood that the offender will after all be punished that the cheapest and easiest course is to let the matter drop. All this gives aid and comfort to the powers of darkness. The widespread impression as to the uncertainty of the law is not entirely a misapprehension. "We have long since passed the period when it is possible to punish an innocent man. We are now struggling with the problem whether it is any longer possible to punish the guilty." It is a melancholy fact that at the present time "penal statutes and procedure tend more to defeat and retard the ends of justice than to protect the rights of the accused." The subject of criminal-law reform is too extensive to be discussed here even superficially, but historically the explanation of existing conditions is simple enough. The present overgrown state of the criminal law is the direct result of our exaggerated regard for personal liberty, coupled with a wholesale adoption of the technicalities of English law invented when only such technicalities could stand between the minor offender and the barbarous punishments of a bygone age. We forget that the community is composed of individuals, and we tend to disregard its interests for those of any particular individual who happens to be a prisoner at the bar. We revolted from England and incidentally from her system of administering the criminal law, by which the defendant could have no voice at his own trial, where practically every crime was punishable with death, and where only the Crown could produce and examine witnesses. Every one will have to agree that the English system was very harsh and very unfair indeed. To-day it is better than ours, simply because its errors have been systematically and wisely corrected, without diminution in the national respect for law. When we devised our own system we adopted those humane expedients for evading the law which were only justified by the existing penalties attached to convictions for crime,--and then discarded the penalties. We were through with tyrants once and for all. The Crown had always been opposed to the defendant and the Crown was a tyrant. We naturally turned with sympathy towards the prisoner. We gave him the right of appeal on all matters of law through all the courts of our States, and even into the courts of the United States, while we allowed the People no right of appeal at all. If the prisoner was convicted he could go on and test the case all along the line,--if he was acquitted the People had to rest satisfied. We stopped the mouth of the judge and made it illegal for him to "sum up" the case or discuss the facts to any extent. We clipped the wings of the prosecutor and allowed him less latitude of expression than an English judge. Then we gazed on the work of our intellects and said it was good. If an ignorant jury acquitted a murderer under the eyes of a gagged and helpless judge, we said that it was all right and that it was better that ninety-nine guilty men should escape than that one innocent man should be convicted. Yes, better for whom? If another murderer, about whose guilt the highest court in one of the States said there was no possible doubt, secured three new trials and was finally acquitted on the fourth, it merely demonstrated how perfectly we safeguarded the rights of the individual. The result is that we have unnecessarily fettered ourselves, have furnished a multitude of technical avenues of escape to wrong-doers, and have created a popular contempt for courts of justice, which shows itself in the sentimental and careless verdicts of juries, in a lack of public spirit, and in an indisposition to prosecute wrong-doers. In addition, the impression sought to be conveyed by the yellow press that our judiciary is corrupt and that money can buy anything--even justice--leads the jury in many cases to feel that their presence is merely a formal concession to an archaic procedure and that their oaths have no real significance. The community, the "People," have a sufficiently hard task to secure justice at any criminal trial. On the one hand is the abstract proposition that the law has been violated, on the other sits a human being, ofttimes contrite, always an object of pity. He is presumed innocent, he is to be given the benefit of every reasonable doubt. He has the right to make his own powerful appeal to the jury and to have the services of the best lawyer he can secure to sway their emotions and their sympathies. If the prosecutor resorts to eloquence he is stigmatized as "over-zealous" and as a "persecutor." If a plainly guilty defendant be acquitted, not the trampled ideal of justice, but the vision of a liberated prisoner rejoicing in his freedom hovers in the talesman's dreams. So far so good; we can afford to stand by a system which in the long run has served us fairly well. But an occasional evil, an evil which when it occurs is productive of great harm and serves to give color to the popular opinion of criminal law, begins only when the lawyers have had their opportunity for elocution. At the conclusion of the charge the defendant's attorney proceeds to put the judge through what is familiarly known as "a course of sprouts." He makes twenty or thirty "requests to charge the jury" on the most abstract propositions of law which his fertile mind can devise,--relevant or irrelevant, applicable or inapplicable to the facts,--and the judge is compelled to decide from the bench, without opportunity for reflection, questions which the attorney has labored upon, perchance, for weeks. If he guesses wrong, the lawyer "excepts" and the case may be reversed on appeal. This is not a test of the defendant's guilt or innocence, but a test of the abstract learning and quickness of the presiding judge. It is generally believed that appellate courts are prone to reverse criminal cases on purely technical grounds. Whether this belief be well founded or ill, its wide acceptance as fact is fertile in bringing the law into disrepute.* Justice to be effective must be not only sure but swift. An "iron hand" cannot always compensate for a "leaden heel". *Cf. "Criminal Law Reform," G.W. Alger, "The Outlook," June, 1907. Also article having same title in "Moral Overstrain," by same author. See also, by Hon. C.F. Amidon, "The Quest for Error and the doing of Justice," 40 American Law Rev. 681, and article on same subject in "The Outlook" for June, 1906. It is probably true that in some of the States such a tendency exists and may result in making the administration of justice a laughing stock, but it is far from being so in States of the character of New York and Massachusetts. The Appellate Division, First Department, and Court of Appeals in New York are distinctly opposed to reversing criminal cases on technical grounds and are prone to disregard trivial error where the guilt of the defendant is clear. The writer can recall no recent criminal case where the district attorney's office has felt aggrieved at the action of the higher courts, and on the contrary believes that their action is generally based on broad principles of public policy and common-sense. During the year 1905 the district attorney of New York County defended forty-seven appeals from convictions in criminal cases in the Appellate Division. Of these convictions only three were reversed. He defended eighteen in the Court of Appeals, of which only two were reversed. One of the writer's associates computed that he had secured, during a four years' term of office, twenty-nine convictions in which appeals had been taken. Of these but two were reversed, one of them immediately resulting in the defendant's re-conviction for the same crime. The other is still pending and the defendant awaiting his trial. Certainly there is little in the actual figures to give color to the impression that the criminal profits by mere technicalities on appeal,--at least in New York State. In nine cases out of ten the reversal of a conviction in a criminal case is due to the carelessness or inefficiency of the prosecuting officer or trial judge and not to any inadequacy in our methods of procedure. Yet the tenth case, the case where the criminal does beat the law by a technicality, does more harm than can easily be estimated. That is the one case everybody knows about, the one the papers descant upon, the one that cheers the heart of the grafter and every criminal who can afford to pay a lawyer. Yet the evil influence of the reversal of a conviction on appeal, however much it is to be deprecated, is as nothing compared with a deliberate acquittal of a guilty defendant by a reckless, sentimental, or lawless jury. Few can appreciate as does a prosecutor the actual, practical and immediate effect of such a spectacle upon those who witness it. Two men were seen to enter an empty dwelling-house in the dead of night. The alarm was given by a watchman near by, and a young police officer, who had been but seven months on the force, bravely entered the black and deserted building, searched it from roof to cellar, and found the marauders locked in one of the rooms. He called upon them to open, received no reply, yet without hesitation and without knowing what the consequences to himself might be, smashed in the door and apprehended the two men. One was found with a large bundle of skeleton keys in his pocket and several candles, while a partially consumed candle lay upon the floor. In the police court they pleaded guilty to a charge of burglary, and were promptly indicted by the grand jury. At the trial they claimed to have gone into the house to sleep, said they had found the bunch of keys on the stairs, denied having the candles at all or that they were in a room on the top story, and asserted that they were in the entrance hall when arrested. The story told by the defendants was so utterly ridiculous that one of the two could not control a grin while giving his version of it on the witness stand. The writer, who prosecuted the case, regarded the trial as a mere formality and hardly felt that it was necessary to sum up the evidence at all. Imagine his surprise when an intelligent-looking jury acquitted both the defendants after practically no deliberation. Both had offered to plead guilty to a slightly lower degree of crime before the case was moved for trial. These two defendants, who were neither insane nor degenerates, consorted with others in Bowery hotels and saloons,--incubators of crime. What effect could such a performance have upon them and their friends save to inculcate a belief that they were licensed to commit as many burglaries as they chose? They had a practical demonstration that the law was "no good" and the system a failure. If they could beat a case in which they had already pleaded guilty, what could they not do where the evidence was less obvious? They were henceforth immune. Who shall say how many embryonic law-breakers took courage at the story and started upon an experimental attempt at crime? The news of such an acquittal must instantly have been carried to the Tombs, where every other guilty prisoner took heart and prepared anew his defence. Those about to plead guilty and throw themselves upon the mercy of the court abandoned their honest purpose and devised some perjury instead. Criminals almost persuaded that honesty was the best policy changed their minds. The barometer of crime swung its needle from "stormy" to "fair." But apart from the law-breakers consider the effect of such a miscarriage of justice upon a young, honest and zealous officer. First, all his good work, his bravery, his conscientious effort at safeguarding the sleeping public had been disregarded, tossed aside with a sneer, and had gone for naught. The jury had stamped his story as a lie and stigmatized him, by their action, as a perjurer. They had chosen two professional criminals as better men. His whole conduct of the case instead of being commended as meritorious had resulted in a solemn public declaration that he was not worthy of credence and that he had attempted wilfully to railroad to State's prison two innocent men. In other words, that he ought to be there himself. What was the use of trying to do good work any longer? He might just as well loiter in an area on a barrel and smoke a furtive cigar when he ought to be "on post." Perhaps he might better "stand in" with those who would inevitably be preferred to him by a jury of their peers. What must have been the effect on the court officers, the witnesses, the defendants out on bail, the complainants, the spectators? That the whole business was nonsense and rot! That the jury system was ridiculous. That the jurymen were either crooks or fools. That the only people who were not insulted and sneered at were the lawbreakers themselves. That if two such rogues were to be set free all the other jailbirds might as well be let go. That an honest man could whistle for his justice and might better straightway put on his hat and go home. That the only way to punish a criminal was to punish him yourself--kill him if you got the chance or get the crowd to lynch him. That if a thief stole from you the shrewdest thing to do was to induce him as a set-off to give you the proceeds of his next thieving. That it was humiliating to live in a town where a self-confessed rascal could snap his fingers at the law and go unwhipped of justice. The jury's action must have been due either to a wilful disregard of their oath or an entire misconception of it. Assuming that the jury deliberately declined to obey the law, the whole twelve elected to become, and thereby did become, lawbreakers. They disqualified themselves forever as talesmen. No prosecutor in his senses would move a case before a jury which numbered any one of them. They had arraigned themselves upon the side, and under the standard, of crime. They became accessories after the fact. If on the other hand they misconceived the purpose for which they were there the performance was a shocking example of what is possible under present conditions. Just as there are three general classes of wrongs, so there are three general and varyingly effective forms of restraint against their perpetration. First there is the moral control exerted by what is ordinarily called conscience, secondly there is the restraint which arises out of the apprehension that the commission of a tort will be followed by a judgment for damages in a civil court, and lastly there is the restraint imposed by the criminal law. All these play their part, separately or in conjunction. For some men conscience is a sufficient barrier to crime or to those acts which, while equally reprehensible, are not technically criminal; for others the possibility of pecuniary loss is enough to keep them in the straight and narrow way; but for a large proportion of the community the fear of criminal prosecution, with implied disgrace and ignominy, forfeiture of citizenship, and confinement in a common jail is about the only conclusive reason for doing unto others as they would the others should do unto them. Were the criminal law done away with in our present state of civilization, religion, ethics and civil procedure would be absolutely inefficacious to prevent anarchy. It is as imperative to the ordinary citizen to know that if he steals he will be locked up as it is for the child to know that if he puts his hand into the fire it will be burned. The acquittal of every thief breeds another, and the unpunished murder is an incentive for a dozen similar homicides. Crimes are either deliberate or the result of accident or impulse. The last class may rise to a high degree of enormity, such as manslaughter, but these crimes are rarely possible of restraint. The perpetrator does not stop to consider, even if he be sober enough to think at all, whether his act be moral, whether it will entail any civil liability, or what will be its consequences, if it be a crime. So far as such acts are concerned those who commit them are hardly criminals in the ordinary sense, and no influence in the world is able to prevent them. The question is how far these different kinds of restraint operate upon the community as a whole in the prevention of deliberate crime. Clearly the fear of pecuniary loss through actions brought to judgment in the civil courts is practically nil. Most persons who set out to commit crime have no bank account, the absence of one being generally what leads them into a criminal career. The writer has no intention of attempting to discuss or estimate the efficacy of religion or ethics as restraining influences. A certain limited proportion of the community would not commit crime under any circumstances. It is enough for them that the act is forbidden by the State even if it be not really wrong from their own personal point of view. Side by side with these very good people are a very large number who wear just as fashionable clothing, have the same friends, attend the same churches, but who would commit almost any crime so long as they were sure of not being caught. If we had no criminal law we should soon discover who were the hypocrites. But for an overwhelming majority of the community something more practical than either religion, ethics, or philosophy is necessary to keep them in order. They must be convinced that the transgressor will surely be punished,--not some time, not next year or the year after, but now. Not, moreover, that his way will be merely hard; but that he will be put in stripes and made to break stones. Hence the necessity for a vigorous and adequate criminal law and procedure which shall command the respect and loyalty of the community, administered by a fearless judiciary who will hold jurors to a rigid and conscientious obedience to their oath. There is nothing sacred about an archaic criminal procedure which in some respects is less devised for the protection of the community than for the exculpation of the guilty. The portals of liberty would not fall down or the framers of the constitution turn in their graves if the peremptory challenges allowed to both sides in the selection of a jury were reduced to a reasonable number, or if persons found guilty of crime after due process of law were compelled to stay in jail until their appeals were decided, instead of walking the streets free as air under a certificate of "reasonable doubt" issued by some judge who personally knew nothing of the actual trial of the case. As things stand to-day, a thief caught in the very act of picking a pocket in the night-time may challenge arbitrarily the twenty most intelligent talesmen called to sit as jurors in his case. Does such a practice make for justice? It is even possible that the sacred bird of liberty would not scream if eleven jurors, instead of twelve, were permitted to convict a defendant or set him free, while the question of how far the right of appeal in criminal cases might properly be limited or, in default of such limitation, how far under certain conditions it might be correspondingly extended to the community, is by no means purely academic.* It is also conceivable that some means might be found to do away with the interminable technicalities which can now be interposed on behalf of the accused to prevent trials or the infliction of sentence after conviction. * "Limitation of the Right of Appeal in Criminal Cases," by Nathan A. Smythe, 17 Harvard Law Rev. 317 (1905). Yet these considerations are of slight moment in contrast to that most crying of all present abuses,--the domination of the court-room by the press.* It is no fiction to say that in many cases the actual trial is conducted in the columns of yellow journals and the defendant acquitted or convicted purely in accordance with an "editorial policy." Judges, jurors, and attorneys are caricatured and flouted. There is no evidence, how ever incompetent, improper, or prejudicial to either side, excluded by the judge in a court of criminal justice, that is not deliberately thrust under the noses of the jury in flaring letters of red or purple the moment they leave the court-room. The judge may charge one way in accordance with the law of the land, while the editor charges the same jury in double-leaded paragraphs with what "unwritten" law may best suit the owner of his conscience and his pen. "Contempt of court" in its original significance is something known today only to the reader of text books.** *Cf. "Sensational Journalism and the Law," in "Moral Overstrain," by G.W. Alger. **By the New York Penal Code section 143, an editor is only guilty of contempt of court (a misdemeanor) if he publishes "a false or grossly inaccurate report" of its proceedings. The most insidious, dangerous, offensive and prejudicial matter spread broadcast by the daily press does not relate to actual trials at all, but to matters entirely outside the record, such as what certain witnesses of either side could establish were they available, the "real" past and character of the defendant, etc. The New York Courts, under the present statute, are powerless to prevent this abuse. In Massachusetts half a dozen of our principal editors and "special writers" would have been locked up long ago to the betterment of the community and to the increase of respect for our courts of justice. Each State has its own particular problem to face, but ultimately the question is a national one. Lack of respect for law is characteristic of the American people as a whole. Until we acquire a vastly increased sense of civic duty we should not complain that crime is increasing or the law ineffective. It would be a most excellent thing for an association of our leading citizens to interest itself in criminal-law reform and demand and secure the passage of new and effective legislation, but it would accomplish little if its individual members continued to evade jury service and left their most important duty to those least qualified by education or experience to perform.* It would serve some of this class of reformers right, if one day, when after a life-time of evasion, they perchance came to be tried by a jury of their peers, they should find that among their twelve judges there was not one who could read or write the English language with accuracy and that all were ready to convict anybody because he lived in a brown-stone front. *"The Citizen and the Jury," in "Moral Overstrain," by G.W. Alger. Merchants, who in return for a larger possible restitution habitually compound felonies by tacitly agreeing not to prosecute those who have defrauded them, have no right to complain because juries acquit the offenders whom they finally decide it to be worth their while to pursue. The voter who has not the courage to insist that hypocritical laws should be wiped from the statute books should express no surprise when juries refuse to convict those who violate them. The man who perjures himself to escape his taxes has no right to expect that his fellow citizens are going to place a higher value upon an oath than he. CHAPTER X. Insanity and the Law Harry Kendall Thaw shot and killed Stanford White on the 25th day of June, 1905. Although most of the Coroner's jury which first sat upon the case considered him irrational, he was committed to the Tombs and, having been indicted for murder, remained there over six months pending his trial. During that time it was a matter of common knowledge that his defence was to be that he was insane at the time of the shooting, but as under the New York law it is not necessary specifically to enter a plea of insanity to the indictment in order to take advantage of that defence (which may be proven under the general plea of "not guilty"), there was nothing officially on record to indicate this purpose. Neither was it possible for the District Attorney to secure any evidence of Thaw's mental condition, since he positively refused either to talk to the prosecutor's medical representatives or to allow himself to be examined by them. Mr. Jerome therefore was compelled to enter upon an elaborate and expensive preparation of the case, not only upon its merits, but upon the possible question of the criminal irresponsibility of the defendant. The case was moved in January, 1906, and the defence thereupon proceeded to introduce a limited amount of testimony tending to show that Thaw was insane when he did the shooting. While much of this evidence commended itself but little to either the prosecutor or the jury, it was sufficient to raise grave doubt as to whether the accused was a fit subject for trial. The District Attorney's experts united in the opinion that, while he knew that he was doing wrong when he shot White, he was, nevertheless, the victim of a hopeless progressive form of insanity called dementia praecox. In the midst of the trial, therefore, Mr. Jerome moved for a commission to examine into the question of how far Thaw was capable of understanding the nature of the proceedings against him and consulting with counsel, and frankly expressed his personal opinion in open court that Thaw was no more a proper subject for trial than a baby. A commission was appointed which reported the prisoner was sane enough to be tried, and the case then proceeded at great length with the surprising result that, in spite of the District Attorney's earlier declaration that he believed Thaw to be insane, the jury disagreed as to his criminal responsibility, a substantial number voting for conviction. Of course, logically, they would have been obliged either to acquit entirely on the ground of insanity or convict of murder in the first degree, but several voted for murder in the second degree. A year now elapsed, during which equally elaborate preparations were made for a second trial. The State had already spent some $25,000, and yet its experts had never had the slightest opportunity to examine or interrogate the defendant, for the latter had not taken the stand at the first trial. The District Attorney still remained on record as having declared Thaw to be insane, and his own experts were committed to the same proposition, yet his official duty compelled him to prosecute the defendant a second time. The first prosecution had occupied months and delayed the trial of hundreds of other prisoners, and the next bid fair to the do same. But at this second trial the defence introduced enough testimony within two days to satisfy the public at large of the unbalanced mental condition of the defendant from boyhood. After a comparatively short period of deliberation the jury acquitted the prisoner "on the ground of insanity," which may have meant either one of two things: (a) that they had a reasonable doubt in their own minds that Thew knew that he was doing wrong when he committed the murder--something hard for the layman to believe, or (b) that, realizing that he was undoubtedly the victim of mental disease, they refused to follow the strict legal test. Nearly two years had elapsed since the homicide; over a hundred thousand dollars had been spent upon the case; every corner of the community had been deluged with detailed accounts of unspeakable filth and depravity; the moral tone of society had been depressed; and the only element which had profited by this whole lamentable and unnecessary proceeding had been the sensational press. Yet the sole reason for it all was that the law of the land in respect to insane persons accused of crime was hopelessly out of date. The question of how far persons who are victims of diseased mind shall be held criminally responsible for their acts has vexed judges, jurors, doctors, and lawyers for the last hundred years. During that time, in spite of the fact that the law has lagged far behind science in the march of progress, we have blundered along expecting our juries to reach substantial justice by dealing with each individual accused as most appeals to their enlightened common sense. And the fact that they have obeyed their common sense rather than the law is the only reason why our present antiquated and unsatisfactory test of who shall be and who shall not be held "responsible" in the eyes of the law remains untouched upon the statute-books. Because its inadequacy is so apparent, and because no experienced person seriously expects juries to apply it consistently, it fairly deserves first place in any discussion of present problems. Thanks to human sympathy, the law governing insanity has had comparatively few victims, but the fact remains that more than one irresponsible insane man has swung miserably from the scaffold. But "hard cases" do more than "make bad law," they make lawlessness. A statute systematically violated is worse than no statute at all, and exactly in so far as we secure a sort of justice by evading the law as it stands, we make a laughing-stock of our procedure. The law is, simply, that any person is to be held criminally responsible for a deed unless he was at the time laboring under such a defect of reason as not to know the nature and quality of his act and that it was wrong. This doctrine first took concrete form in 1843, when, after a person named McNaughten, who had shot and killed a certain Mr. Drummond under an insane delusion that the latter was Sir Robert Peel, had been acquitted, there was such popular uneasiness over the question of what constituted criminal responsibility that the House of Lords submitted four questions to the fifteen judges of England asking for an opinion on the law governing responsibility for offences committed by persons afflicted with certain forms of insanity. It is unnecessary to set forth at length these questions, but it is enough to say that the judges formulated the foregoing rule as containing the issue which should be submitted to the jury in such cases.* * The questions propounded to the judges and their answers are here given: Question 1.--"What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons, as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit? Answer 1.-"Assuming that your lordships' inquiries are confined to those persons who labor under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is, nevertheless, punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land. Question 4:--"If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused? Answer 4.--"The answer must of course depend on the nature of the delusion; but, making the same assumption as we did before, namely, that he labors under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusions exist were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and kills the man, as he supposes in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. Question 2.--"What are the proper questions to be submitted to the jury when a person, afflicted with insane delusions respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for instance), and insanity is set up as a defence? Question 3.--"In what terms ought the question to be left to the jury as to the prisoner's state of mind when the act was committed? Answers 2 and 3.--"As these two questions appear to us to be more conveniently answered together, we submit our opinion to be that the jurors ought to be told, in all cases, that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." (The remainder of the answer goes on to discuss the usual way the question is put to the jury.) Now, with that commendable reverence for judicial utterance which is so characteristic of the English nation, and is so conspicuously absent in our own country, it was assumed until recently that this solemn pronunciamento was the last word on the question of criminal responsibility and settled the matter once and forever. Barristers and legislators did not trouble themselves particularly over the fact that in 1843 the study of mental disease was in its infancy, and judges, including those of England, probably knew even less about the subject than they do now. In 1843 it was supposed that insanity, save of the sort that was obviously maniacal, necessitated "delusions," and unless a man had these delusions no one regarded him as insane. In the words of a certain well-known judge: "The true criterion, the true test of the absence or presence of insanity, I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely, delusion.... In short, I look on delusion .... and insanity to be almost, if not altogether, convertible terms."* * Dew vs. Clark. This in a certain broad sense, probably not intended by the judge who made the statement, is nearly true, but, unfortunately, is not entirely so. The dense ignorance surrounding mental disease and the barbarous treatment of the insane within a century are facts familiar to everybody. Lunatics were supposed to be afflicted with demons or devils which took possession of them as retribution for their sins, and in addition to the hopelessly or maniacally insane, medical science recognized only a so-called "partial" or delusionary insanity. Today it would be regarded about as comprehensive to relate all mental diseases to the old-fashioned "delusion" as to regard as insane only those who frothed at the mouth. But the particular individual out of whose case in 1843 arose the rule that is in 1908 applied to all defendants indiscriminately was the victim of a clearly defined insane delusion, and the four questions answered by the judges of England relate only to persons who are "afflicted with insane delusions in respect to one or more particular subjects or persons." Nothing is said about insane persons without delusions, or about persons with general delusions, and the judges limit their answers even further by making them apply "to those persons who labor under such partial delusion only and are not in other respects insane"--a medical impossibility. Modern authorities agree that a man cannot have insane delusions and not be in other respects insane, for it is mental derangement which is the cause of the delusion. In the first place, therefore, a fundamental conception of the judges in answering the questions was probably fallacious, and in the second, although the test they offered was distinctly limited to persons "afflicted with insane delusions," it has ever since been applied to all insane persons irrespective of their symptoms. Finally, whether the judges knew anything about insanity or not, and whether in their answers they weighed their words very carefully or not, the test as they laid it down is by no means clear from a medical or even legal point of view. Was the accused laboring under such a defect of reason as not to know the nature and quality of the act he was doing, or not to know that it was wrong? What did these judges mean by know? What does the reader mean by know? What does the ordinary juryman mean by it? We are left in doubt as to whether the word should be given, as justice Stephens contended it should be, a very broad and liberal interpretation such as "able to judge calmly and reasonably of the moral or legal character of a proposed action,"* or a limited and qualified one. There are all grades and degrees of "knowledge," and it is more than probable that there is a state of mind which I have heard an astute expert call upon the witness stand "an insane knowledge," and equally obvious that there may be "imperfect" nor "incomplete knowledge," where the victim sees "through a glass darkly." Certainly it seems far from fair to interpret the test of responsibility to cover a condition where the accused may have had a hazy or dream-like realization that his act was technically contrary to the law, and even more dangerous to make it exclude one who was simply unable to "judge calmly and reasonably" of his proposed action, a doctrine which could almost be invoked by any one who committed homicide in a state of anger. *"General View of the Criminal Law," p. 80. Ordinarily the word is not defined at all and the befuddled juryman is left to his own devices in determining what significance he shall attach not only to this word but to the test as a whole. An equally ambiguous term is the word "wrong." The judges made no attempt to define it in 1843, and it has been variously interpreted ever since. Now it may mean "contrary to the dictates of conscience" or, as it is usually construed, "contrary to the law of the land"--and exactly what it means may make a great difference to the accused on trial. If the defendant thinks that God has directed him to kill a wicked man, he may know that such an act will not only be contrary to law, but also in opposition to the moral sense of the community as a whole, and yet he may believe that it is his conscientious duty to take life. In the case of Hadfield, who deliberately fired at George III in order to be hung, the defendant believed himself to be the Lord Jesus Christ, and that only by so doing could the world be saved. Applying the legal test and translating the word "wrong" as contrary to the common morality of the community wherein he resided or contrary to law, Hadfield ought to have achieved his object and been given death upon the scaffold instead of being clapped, as he was, into a lunatic asylum. On the other hand, if the word "wrong" is judicially interpreted, it would seem to be given an elasticity which would invite inevitable confusion as well as abuse. Moreover, the test in question takes no cognizance of persons who have no power of control. The law of New York and most of the states does not recognize "irresistible impulses," but it should admit the medical fact that there are persons who, through no fault of their own, are born practically without any inhibitory capacity whatever, and that there are others whose control has been so weakened, through accident or disease, as to render them morally irresponsible,--the so-called psychopathic inferiors. Most of us are only too familiar with the state of a person just falling under the influence of an anesthetic, when all the senses seem supernaturally acute, the reasoning powers are active and unimpaired, and the patient is convinced that he can do as he wills, whereas, in reality, he says and does things which later on seem impossible in their absurdity. Such a condition is equally possible to the victim of mental disease, where the knowledge of right and wrong has no real relevancy. The test of irresponsibility as defined by law is hopelessly inadequate, judged by present medical knowledge. There is no longer any pretence that a perception of the nature and quality of an act or that it is wrong or right is conclusive of the actual insanity of a particular accused. In a recent murder case a distinguished alienist, testifying for the prosecution, admitted that over seventy per cent. of the patients under his treatment, all of whom he regarded as insane and irresponsible, knew what they were doing and could distinguish right from wrong. Countless attempts have been made to reconcile this obvious anachronism with justice and modern knowledge, but always without success, and courts have wriggled hard in their efforts to make the test adequate to the particular cases which they have been trying, but only with the result of hopelessly confounding the decisions. But, however it is construed, the test as laid down in 1843 is insufficient in 1908. Medical science has marched on with giant strides, while the law, so far as this subject is concerned, has never progressed at all. It is no longer possible to determine mental responsibility by any such artificial rule as that given by the judges to the Lords in McNaughten's case, and which juries are supposed to apply in the courts of today. I say "supposed," for juries do not apply it, and the reason is simple enough--you cannot expect a juryman of intelligence to follow a doctrine of law which he instinctively feels to be crude and which he knows is arbitrarily applied. No juryman believes himself capable of successfully analyzing a prisoner's past mental condition, and he is apt to suspect that, however sincere the experts on either side may appear, their opinions may be even less definite than the terms in which they are expressed. The spectacle of an equal number of intellectual-looking gentlemen, all using good English and all wearing clean linen, reaching diametrically opposite conclusions on precisely the same facts, is calculated to fill the well-intentioned juror with distrust. Painful as it is to record the fact, juries are sometimes almost as sceptical in regard to doctors as they always are in regard to lawyers. The usual effect of the expert testimony on one side is to neutralize that on the other, for there is no practical way for the jury to distinguish between experts, since the foolish ones generally look as learned as the wise ones. The result is hopeless confusion on the part of the juryman, an inclination to "throw it all out," and a resort to other testimony to help him out of his difficulty. Of course he has no individual way of telling whether the defendant "knew right from wrong," whatever that may mean, and so the ultimate test that he applies is apt to be whether or not the defendant is really "queer," "nutty" or "bughouse," or some other equally intelligible equivalent far "medically insane." The unfortunate consequence is that there is so general and growing a scepticism about the plea of insanity, entirely apart from its actual merits, that it is difficult in ordinary cases, whatever the jurors may think or say in regard to the matter, to secure twelve men who will give the defence fair consideration at the outset. This is manifest in frequent expressions from talesmen such as: "I think the defence of insanity is played out," or "I believe everybody is a little insane, anyhow" (very popular and regarded by jurymen as witty), or "Well, I have an idea that when a fellow can't cook up any other defence he claims to be insane." The result is a rather paradoxical situation: The attitude of the ordinary jury in a homicide case, where the defence of insanity is interposed, is usually at the outset one of distrust, and their impulse is to brush the claim aside. This tendency is strengthened by the legal presumption, which the prosecutor invariably calls to their attention, that the defendant is sane. Every expert who has testified for the defence in the ordinary "knock down and drag out" homicide case must have felt with the prisoner's attorneys, that it was "up to them" not so much to create a doubt of the defendant's sanity as to prove that he was insane, if they expected consideration from the jury. Now let us assume that the defence is meritorious and that the prisoner's experts have created a favorable impression. Let us go even further and assume that they have generated a reasonable doubt in the mind of the jury as to the defendant's responsibility at the time he committed the offence. What generally occurs? Not, as one would suppose, an acquittal, but, in nine cases out of ten, a conviction in a lower degree. The only usual result of an honest claim of irresponsibility on the ground of insanity is to lead the jury to reduce the grade of the offence from murder in the first, entailing the death penalty, to murder in the second degree. The jury have no intention of "taking the chance" involved in turning the man loose on the community and their minds are filled with the predominating fact that a human being has been killed. They have an idea that it is as easy to get "sworn out" of a lunatic asylum as they suppose it is to get "sworn into" one, and they know that if the prisoner is found to be insane when sent to State's prison he will be transferred elsewhere. They, therefore, as a rule, waste little time upon the question of how far the defendant was irresponsible within the legal definition when he committed the deed, but convict him "on general principles," trusting the prison officials to remedy any possible injustice. The jury in such cases ignore the law and decline either to acquit or to convict in accordance with the test. Their action becomes rather that of a lay commission condemning the prisoner to hard labor for life on the ground that he is medically insane. Assuming that the jury take the defence seriously, there is only one class of cases where, in the writer's opinion, they follow the legal test as laid down by the court--that is to say, in cases of extreme brutality. Here they hold the prisoner to the letter of the law, and the more abhorrent the crime (even where its nature might indicate to a physician that the accused was the victim of some sort of mania) the less likely they are to acquit. The writer has prosecuted perhaps a dozen homicide and other cases where the defence was insanity. In his own experience he has known of no acquittal. In several instances the defendants were undoubtedly insane, but, strictly speaking, probably vaguely knew the nature and quality of their acts and that they were wrong. In a few of these the juries convicted of murder in the first degree because the circumstances surrounding the homicides were so brutal that the harshness of the technical doctrine they were required to apply was overshadowed in their minds by their horror of the act itself. In other cases, where either the accused appeared obviously abnormal as he sat at the bar of justice, or the details of the crime were less abhorrent, they convicted of murder in the second degree in accordance with the reasoning set forth in the foregoing paragraph. The writer seriously advances the suggestion that the more the brutality of a homicide indicates mental derangement the less chance the defendant has to secure an acquittal upon the plea of insanity. And this leads us to that increasingly large body of cases where the usual scepticism of the jury in regard to such defences is counterbalanced by some real or imaginary element of sympathy. In cities like New York, where the jury system is seen at its very best, where the statistics show seventy per cent. of convictions by verdict for the year 1907, and where the sentiment of the community is against the invocation of any law supposedly higher than that of the State, our talesmen are unwilling to condone homicide or to act as self-constituted pardoning bodies, for they know that an obviously lawless verdict will bring down upon them the censure of the public and the press. This is perhaps demonstrated by the fact that in New York County a higher percentage of women are convicted of homicide than of men. But the plea of insanity, with its vague test of responsibility, whose terms the juryman may construe for himself (or which his fellow-jurors may construe for him) offers an unlimited and fertile field for the "reasonable" doubt and an easy excuse for the conscientious talesman who wants to acquit if he can. Juries take the little stock in irresistible impulses and emotional or temporary insanity save as a cloak to cover an unrighteous acquittal. In no other class of cases does "luck" play so large a part in the final disposition of the prisoner. A jury is quite as likely to send an insane man to the electric chair as to acquit a defendant who is fully responsible for his crime. To recapitulate from the writer's experience: (1) The ordinary juror tends to be sceptical as to the good faith of the defence of insanity. (2) When once this distrust is removed by honest evidence on the part of the defence, he usually declines to follow the legal test as laid down by the court on the general theory that any one but an idiot or a maniac has some knowledge of what he is doing and whether it is right or wrong. (3) He applies the strict legal test only in cases of extreme brutality. (4) In all other cases he follows the medical rather than the legal test, but instead of acquitting the accused on account of his medical irresponsibility, merely convicts in a lower degree. The following deductions may also fairly be made from observation: (1) That the present legal test for criminal responsibility is admittedly vague and inadequate, affording great opportunity for divergent expert testimony and a readily availed of excuse for the arbitrary and sentimental actions of juries, to which is largely due the distrust prevailing of the claim of insanity when interposed as a defence to crime. (2) That expert medical testimony in such cases is largely discounted by the layman. (3) That in no class of cases are the verdicts of jurors so apt to be influenced solely by emotion and prejudice, or to be guided less by the law as laid down by the court. (4) That a new definition of criminal responsibility is necessary, based upon present knowledge of mental disease and its causes. (5) Lastly, that, as whatever definition may be adopted will inevitably be difficult of application by an untutored lay jury, our procedure should be so amended that they may be relieved wherever possible of a task sufficiently difficult for even the most experienced and expert alienists. A classification of the different forms of insanity, based upon its causes to which the case of any particular accused might be relegated, such as has recently been urged by a distinguished young neurologist, would not, with a few exceptions, assist us in determining his responsibility. It would be easy to say then, as now, that lunatics or maniacs should not be held responsible for their acts, but we should be left where we are at present in regard to all those shadowy cases where the accused had insane, incomplete or imperfect knowledge of what he was doing. It would be ridiculous, for example, to lay down a general rule that no person suffering from hysterical insanity should be punished for his acts. Yet, even so, such a classification would instantly remedy that anachronism in our present law which refuses to recognize as irresponsible those born without power to control their emotions--the psychopathic inferiors of science, and the real victims of dementia praecox. Of course, if the insanity under which the defendant labors bears no relation to or connection with the deed for which he is on trial, there would logically be no reason why his insanity on other subjects should be any defence to his crime. For example, there is the well-known case of the Harvard professor who was apparently sane on all other matters, yet believed himself to be possessed of glass legs. Had this man in wanton anger struck and killed another, his "glass leg" delusion could not logically have availed him. If, however, he had struck and killed one who he believed was going to shatter his legs it might have been important. The illustration is clear enough, but its application probably involves a mistaken premise. If he thought he had glass legs his mind was undoubtedly deranged--whether enough or not enough to constitute him irresponsible or beyond the effect of penal discipline might be a difficult question. The generally accepted doctrine is, that if a man has a delusion concerning something, which if actually existing as he believed it to be would be no excuse for his committing the criminal act, he is responsible and liable to punishment; but, as Bishop well says: "This branch of the doctrine should be cautiously received; for delusion of any kind is strongly indicative of a generally diseased mind." The new test to determine responsibility will recognize, as does the law of Germany, that there can be no criminal act where the free determination of the will is excluded by disease, and that the capacity to distinguish between right and wrong is inconclusive. It may perhaps have to take a general form, leaving it to a lay, or a mixed lay-and-expert jury to say merely whether the accused had a disease of the mind of a type recognized by science, and whether the alleged criminal act was of such a character as would naturally flow from that type of insanity, in which case it would seem obviously just to regard the defendant as partially irresponsible, and perhaps entirely so. Possibly the practical needs of the moment might be met by permitting such a jury to determine whether the defendant had such a knowledge of the wrongful nature and consequences of his act and such a control over his will as to be a proper subject of punishment.* This would require the jury to find that the defendant had some knowledge of right and wrong and the power to choose between them. In any event, to render the accused entirely irresponsible, his act should arise out of and be caused solely by the diseased condition of his mind. The law, while asserting the responsibility of many insane people, should recognize "partial" responsibility as well. *See State vs. Richards, 1873, Conn. The reader may feel that little after all would be gained, but he will observe that at any rate such a test, however imperfect, would permit juries to do lawfully that which they now do by violating their oaths. The writer believes that the best concrete test yet formulated and applied by any court is that laid down in Parsons vs. The State of Alabama (81 Ala., 577): "1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane? "2. If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible. "3. If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur: "(1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed. "(2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely." But whatever modification in the present test of criminal responsibility is adopted, there must come an equally, if not even more important, reform in the procedure in insanity cases, which to-day is as cumbersome and out of date as the law itself. As things stand now in New York and most other jurisdictions there are no adequate means open to the State to find out the actual present or past mental condition of the defendant until the trial itself, and ofttimes not even then. In New York, in cases like Thaw's, the accused, while fully intending to interpose the defence of insanity (which he is now permitted to do simply under the general plea of "not guilty") may not only conceal the fact until the trial, but may likewise successfully block every effort of the authorities to examine him and find out his present mental condition. He may thus keep it out of the power of the District Attorney to secure the facts upon which to move for a commission to determine whether or not he ought to be in an insane asylum or is a fit subject for trial, and at the same time prevent the prosecutor from obtaining any evidence through direct medical observation by which to meet the claim, which may be "sprung" suddenly upon him later at the trial, that the defendant was irresponsible. In order that this may be clearly understood by the reader he should fully appreciate the distinction between (1) the claim on the part of an accused that he is at present insane, and for that reason should not be either tried or punished for his alleged offence, and (2) the defence that he was (irrespective of his present mental condition) insane within the legal definition of irresponsibility at the time he committed it. No person who is incapable of understanding the nature of the proceedings against him or of consulting with counsel and preparing his defence can be placed on trial at all, or, if already on trial, can continue to be tried, and if a defendant "appears to the court to be insane," the judge may appoint a commission to examine him and report as to his present condition. This may be done upon the application either of the State of the accused through his counsel. It was such a commission to determine the accused's present mental condition that District Attorney Jerome, upon the basis of the evidence introduced by the defence, applied for and secured during the first trial of Harry K. Thaw. The commission reported that Thaw was sane enough to be tried and the court then proceeded with the original case for the purpose of allowing the jury to say whether he knew the nature and quality of his act and that it was wrong when he shot and killed White. This was a totally distinct proceeding from the interposition of the DEFENCE that the accused was irresponsible when he committed the crime charged against him and was not inconsistent with it. Now supposing that the Commission had reported that Thaw was insane at the time of examination and not a fit subject for trial, but, on the contrary, ought to be confined in an insane asylum, the District Attorney would have spent some twenty odd thousand dollars and a year's time of one or more of his assistants in fruitless preparation. Yet, as the law stands on the books to-day in New York, there is no adequate way for the prosecution to find out whether this enormous expenditure of time or money is necessary or not, for it cannot compel the defendant to submit either to a physical or mental examination. To do so has been held to be a violation of his constitutional rights and equivalent to compelling him to give evidence against himself. Thus when Thaw came to the bar at his first trial the State had never had any opportunity, through an examination by its physicians, to learn what his present condition was or past mental condition had been. The accused, on the other hand, had had over six months to prepare his defence and had fully availed himself of the time to submit to the most exhaustive examinations on the part of his own experts. The defendant's physicians came to court brimming with facts to which they could testify; while the State's experts had only the barren opportunity for determining the defendant's condition afforded by observing him daily in the court room and hearing what Thaw's own doctors claimed that they had discovered. There was no chance to rebut anything which the latter alleged that they had observed, and their testimony, save in so far as it was inconsistent or contradictory in itself, remained irrefutable. There is probably no procedure which would be held constitutional whereby a compulsory examination of the accused could be had upon the mere application of the prosecuting authorities; but as a commission may generally be appointed at any time after an accused has been indicted if he "appears" to the court to be "insane," and as it is usually within the power of the District Attorney where such is the case to bring sufficient evidence of it to the attention of the court before the prisoner is brought to trial, little time is actually lost and justice is rarely defeated except in those cases (such as Thaw's) where an attempt is to be made to prove the accused insane at the time of the alleged crime although sane at the time of trial. Even here it would be the simplest thing in the world to remedy the difficulty and the proper legal steps in all jurisdictions should be taken immediately. The two chief objects of such reforms should be, first, to relieve the ordinary jury in as many cases as possible from the necessity of passing upon the delicate issue of a defendant's mental condition at a previous time, and second, where this may not be avoided, to make their task as easy as possible by providing (a) a more scientific and definite test of legal responsibility and (b) an opportunity for adequate examination of defendants availing themselves of this defence. This last and most practical reform can be easily secured by a slight alteration in the New York Code of Criminal Procedure, which already provides both for the entering of the specific plea of insanity and for the introduction of the defence and the proof of insanity under the general plea of "not guilty." At present the defendant has his choice of openly announcing or of concealing until the trial his intention of claiming that he was insane and so irresponsible for his crime. This is an advantage the results of which were probably not fully contemplated by the Legislature, and one to which an accused has no fair claim. Fortunately, in the same section of the Code (658), which provides that the court may appoint a Commission to inquire into the sanity of a defendant at the time of his trial, there exists another provision, hitherto little noticed, that: "When a defendant PLEADS INSANITY, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his insanity at the time of the commission of the crime." If a defendant intends to prove himself irresponsible for his offence, why should he not be compelled to enter a specific plea to that effect? Once he has entered that plea, the law as it stands just quoted will do the rest. No reason has been brought to the attention of the writer why the admission of any evidence upon the defendant's trial tending to show that he was mentally irresponsible at the time of committing the crime should not be made contingent upon the defence of insanity having been specifically pleaded either at the time of his arraignment or later by substitution for or in conjunction with the plea of "not guilty." This would deprive him of no constitutional right whatever. There is no legal necessity of permitting an accused to prove insanity under a general answer of "not guilty." Then upon his own plea that he had been insane he could instantly be committed to some place of observation where a permanent medical board of inquiry could be given full opportunity to examine him and study his case with a view to determining his present and past mental condition. He would still have in prospect his regular jury trial, but if this board found him at the present time insane, the court could immediately commit him to an asylum pending recovery, precisely as under the present procedure, while if they found him sane at the present time, but reported that, in their opinion (whatever test, "medical" or "legal," they might have applied), he was irresponsible at the time he committed the crime, it is unlikely that any prosecutor would bring him to trial. If, however, they reported that he was not only sane, but had been sane at the time of his crime, it is probable that any proposed defence of insanity would be abandoned, while if it was still urged by the accused, the opinion of such a board would carry far greater weight at the ultimate trial of the case than the individual opinions of experts retained and paid by either side for that particular occasion only, and having had only a comparatively limited opportunity for examination. At any rate, if the court called in the services of such a board of medical judges to assist as amici curie in determining the defendant's condition, while their opinion would not be conclusive upon the jury, it would at least do away with the present lamentable necessity of learned men answering "yes" or "no" to a hypothetical question fifty thousand words long, when the most superficial personal examination of the accused would settle the matter definitely in their minds. Such a procedure is in general use in Germany and other continental countries, and is likewise substantially followed in Massachusetts, Maine, Vermont, and New Hampshire.* * Another equally efficacious means of dealing with the matter would be to substitute, upon a defendant's plea of insanity, a full jury of experts--like any "special" jury--for the ordinary petit jury. There is good reason to hope that we may soon see in all the states adequate provision for preliminary examination upon the plea of insanity, and a new test of criminal responsibility consistent with humanity and modern medical knowledge. Even then, although murderers who indulge in popular crime will probably be acquitted on the ground of insanity, we shall at least be spared the melancholy spectacle of juries arbitrarily committing feeble-minded persons charged with homicide to imprisonment at hard labor for life, and in a large measure do away with the present unedifying exhibition of two groups of hostile experts, each interpreting an archaic and inadequate test of criminal responsibility in his own particular way, and each conscientiously able to reach a diametrically opposite conclusion upon precisely the same facts. CHAPTER XI. The Mala Vita in America There are a million and a half of Italians in the United States, of whom nearly six hundred thousand reside in New York City--more than in Rome itself. Naples alone of all the cities of Italy has so large an Italian population; while Boston has one hundred thousand, Philadelphia one hundred thousand, San Francisco seventy thousand, New Orleans seventy thousand, Chicago sixty thousand, Denver twenty-five thousand, Pittsburg twenty-five thousand, Baltimore twenty thousand, and there are extensive colonies, often numbering as many as ten thousand, in several other cities. So vast a foreign-born population is bound to contain elements of both strength and weakness. The north Italians are molto simpatici to the American character, and many of their national traits are singularly like our own, for they are honest, thrifty, industrious, law-abiding and good-natured. The Italians from the extreme south of the peninsula have fewer of these qualities, and are apt to be ignorant, lazy, destitute, and superstitious. A considerable percentage, especially of those from the cities, are criminal. Even for a long time after landing in America, the Calabrians and Sicilians often exhibit a lack of enlightenment more characteristic of the Middle Ages than of the twentieth century. At home they have lived in a tumble-down stone hut about fifteen feet square, half open to the sky (its only saving quality); in one corner the entire family sleeping in a promiscuous pile on a bed of leaves; in another a domestic zoo consisting of half a dozen hens, a cock, a goat, and a donkey. They neither read, think, nor exchange ideas. The sight of a uniform means to them either a tax-gatherer, a compulsory enlistment in the army, or an arrest, and at its appearance the man will run and the wife and children turn into stone. They are stubborn and distrustful. They are the same as they were a thousand or more years gone by. When the writer was acting as an assistant prosecutor in New York County, a young Italian, barely twenty years of age, was brought to the bar charged with assault with intent to kill. The complainant was a withered Sicilian woman who claimed to be his wife. Both spoke an almost unintelligible dialect. The case on its face was simple enough. An officer testified that on a Sunday morning in Mulberry Bend Park, at a distance of about fifty feet from where he was standing, he saw the defendant, who had been walking peaceably with the complaining witness, suddenly draw a long and deadly looking knife and proceed to slash her about the head and arms. It had taken the officer but a moment or two to seize the defendant from behind and disarm him, but in the meantime he had inflicted some eleven wounds upon her body. No explanation had been offered for this terrible assault, and the complainant had appeared involuntarily before the Grand jury and afterward had to be kept in the House of Detention as a hostile witness. The woman, who appeared to be about fifty years old, was sworn, and on being questioned stated that she had been married to the defendant in Sicily three years before. She declined to admit that he had attacked or harmed her in any way, constantly mumbling: "He is my husband. Do not punish him!" The defendant, however, seemed eager to get on the stand and to tell his story; nor did the introduction of the knife in evidence or the exhibition of the woman's wounds embarrass him in the slightest degree. His manner was that of a man who had only to explain to be entirely exonerated from blame. He nodded at the jury and the judge, and scowled at the complainant, who was speedily conducted to a place where no harm could possibly come to her. When at last he was sworn, he could hardly restrain himself into coherency. "Yes--that woman forced me to marry her!" he testified in substance. "But in the eyes of God I am not her husband, for she bewitched me! Else would I have married an old crone who could not have borne me children? When her spells weakened I left her and came to America. Here I met the woman I love,--Rosina,--and as I had been bewitched into the other marriage, we lived together as man and wife for two years. Then one day a friend told me that the old woman had followed me over the sea and was going to throw her spells upon me again. But I did not inform Rosina of these things. The next evening she told me that an old woman had been to the house and asked for me. For days my first wife lurked in the neighborhood, beseeching me to come back to her. But I told her that in the eyes of God she was not my wife. Then, in revenge, she cast the evil eye upon the child--sul bambino--and for six weeks it ailed and then died. Again the witch asked me to go with her, and again I refused. This time she cast her evil eye upon my wife--and Rosina grew pale and sick and took to her bed. There was only one thing to do, you understand. I resolved to slay her, just as you--giudici--would have done. I bought a carving-knife and sharpened it, and asked her to walk with me to the park, and I would have killed her had not the police prevented me. Wherefore, O giudici! I pray you to recall her and permit me to kill her or to decree that she be hung!" This case illustrates the depths of ignorance and superstition that are occasionally to be found among Italian peasant immigrants. Another actual experience may demonstrate the mediaeval treachery of which the Sicilian Mafiuso is capable, and how little his manners or ideals have progressed in the last five hundred years or so. A photographer and his wife, both from Palermo, came to New York and rented a comfortable home with which was connected a "studio." In the course of time a young man--a Mafiuso from Palermo--was engaged as an assistant, and promptly fell in love with the photographer's wife. She was tired of her husband, and together they plotted the latter's murder. After various plans had been considered and rejected, they determined on poison, and the assistant procured enough cyanide of mercury to kill a hundred photographers, and turned it over to his mistress to administer to the victim in his "Marsala." But at the last moment her hand lost its courage and she weakly sewed the poison up for future use inside the ticking of the feather bolster on the marital bed. This was not at all to the liking of her lover, who thereupon took matters into his own hands, by hiring another Mafiuso to remove the photographer with a knife-thrust through the heart. In order that the assassin might have a favorable opportunity to effect his object, the assistant, who posed as a devoted friend of his employer, invited the couple to a Christmas festival at his own apartment. Here they all spent an animated and friendly evening together, drinking toasts and singing Christmas carols, and toward midnight the party broke up with mutual protestations of regard. If the writer remembers accurately, the evidence was that the two men embraced and kissed each other. After a series of farewells the photographer started home. It was a clear moonlight night with the streets covered with a glistening fall of snow. The wife, singing a song, walked arm in arm with her husband until they came to a corner where a jutting wall cast a deep shadow across the sidewalk. At this point she stepped a little ahead of him, and at the same moment the hired assassin slipped up behind the victim and drove his knife into his back. The wife shrieked. The husband staggered and fell, and the "bravo" fled. The police arrived, and so did an ambulance, which removed the hysterical wife and the transfixed victim to a hospital. Luckily the ambulance surgeon did not remove the knife, and his failure to do so saved the life of the photographer, who in consequence practically lost no blood and whose cortex was skilfully hooked up by a dextrous surgeon. In a month he was out. In another the police had caught the would-be murderer and he was soon convicted and sentenced to State prison, under a contract with the assistant to be paid two hundred and fifty dollars for each year he had to serve. Evidently the lover and his mistress concluded that the photographer bore a charmed life, for they made no further homicidal attempts. So much for the story as an illustration of the mediaeval character of some of our Sicilian immigrants. For the satisfaction of the reader's taste for the romantic and picturesque it should be added, however, that the matter did not end here. The convict, having served several years, found that the photographer's assistant was not keeping his part of the contract, as a result of which the assassin's wife and children were suffering for lack of food and clothing. He made repeated but fruitless attempts to compel the party of the first part to pay up, and finally, in despair, wrote to the District Attorney of New York County that he could, if he would, a tale unfold that would harrow up almost anybody's soul. Mr. Jerome therefore, on the gamble of getting something worth while, sent Detective Russo to Auburn to interview the prisoner. That is how the whole story came to be known. The case was put in the writer's hands, and an indictment for the very unusual crime of attempted murder (there are only one or two such cases on record in New York State) was speedily found against the photographer's assistant. At the trial the lover saw his mistress compelled to turn State's evidence against him to save herself. She testified to the Christmas carols and the cyanide of mercury. "Did you ever remove this terrible poison from the bolster?" demanded the defendant's counsel in a sneering tone. "No," answered the woman. "Have you ever changed the bolster?" he persisted. "No." "Then it's there yet?" "I-I think so," falteringly. "I demand that this incredible yarn be investigated!" cried the lawyer. "I ask that the court send for the bolster and cut it open here in the presence of the jury." The writer had no choice but to accede to this request, and the bolster was hunted down and brought into court. With some anxiety both sides watched while the lining was slit with a penknife. A few feathers fluttered to the floor as the fingers of the witness felt inside and came in contact with the poison. The assistant was convicted of attempted murder on the convict's testimony, and sentenced to Sing Sing for twenty-five years. That was the end of the second lesson. About a month afterward the defendant's counsel made a motion for a new trial on the ground that the convict now admitted his testimony to have been wholly false, and produced an affidavit from the assassin to that effect. Naturally so startling an allegation demanded investigation. Yes, insisted the "bravo," it was all made up, a "camorra"--not a word of truth in it, and he had invented the whole thing in order to get a vacation from State prison and a free ride to New York. However, the court denied the motion. The writer procured a new indictment against the assassin--this time for perjury--and he was sentenced to another additional term in prison. What induced this sudden and extraordinary change of mind on his part can only be surmised. These two cases are extreme examples of the mediaevalism that to a considerable degree prevails in New York City, probably in Chicago and Boston, and wherever there is an excessive south Italian population. The conditions under which a large number of Italians live in this country are favorable not only to the continuance of ignorance, but to the development of disease and crime. Naples is bad enough, no doubt. The people there are poverty-stricken and homeless. But in New York City they are worse than homeless. It is better far to sleep under the stars than in a stuffy room with ten or twelve other persons. Let the reader climb the stairs of some of the tenements in Elizabeth Street, or go through those in Union Street, Brooklyn, and he will get firsthand evidence. This is generally true of the lower class of Italians throughout the United States, whether in the city or country. They live under worse conditions than at home. You may go through the railroad camps and see twenty men sleeping together in a one-room built of lath, tar-paper, and clay. The writer knows of one Italian laborer in Massachusetts who slept in a floorless mud hovel about six feet square, with one hole to go in and out by and another in the roof for ventilation--in order to save $1.75 per month. All honor to him! Garibaldi was of just such stuff, only he suffered in a better cause. In Naples the young folks are out all day in the sun. Here they are indoors all the year round. For the consequences of this change see Dr. Peccorini's article in the 'Forum' for January, 1911, on the tuberculosis that soon develops among Italians who abroad were accustomed to live in the country but here are forced to exist in tenements. Now, for historic reasons, these south Italians hate and distrust all governmental control and despise any appeal to the ordinary tribunals of justice to assert a right or to remedy a wrong. It has been justly said by a celebrated Italian writer that, in effect, there is some instinct for civil war in the heart of every Italian. The insufferable tyranny of the Bourbon dynasty made every outlaw dear to the hearts of the oppressed people of the Kingdom of the Two Sicilies. Even if he robbed them, they felt that he was the lesser of two evils, and sheltered him from the authorities. Out of this feeling grew the "Omerta," which paralyzes the arm of justice both in Naples and Sicily. The late Marion Crawford thus summed up the Sicilian code of honor: According to this code, a man who appeals to the law against his fellow man is not only a fool but a coward, and he who cannot take care of himself without the protection of the police is both.... It is reckoned as cowardly to betray an offender to justice, even though the offence be against one's self, as it would be not to avenge an injury by violence. It is regarded as dastardly and contemptible in a wounded man to betray the name of his assailant, because if he recovers he must naturally expect to take vengeance himself. A rhymed Sicilian proverb sums up this principle, the supposed speaker being one who has been stabbed. "If I live, I will kill thee," it says; "if I die, I forgive thee!" Any one who has had anything to do with the administration of criminal justice in a city with a large Italian population must have found himself constantly hampered by precisely this same "Omerta." The south Italian feels obliged to conceal the name of the assassin and very likely his person, though he himself be but an accidental witness of the crime; and, while the writer knows of no instance in New York City where an innocent man has gone to prison himself rather than betray a criminal, Signor Cutera, formerly chief of police in Palermo, states that there have been many cases in Sicily where men have suffered long terms of penal servitude and even have died in prison rather than give information to the police. In point of fact, however, the "Omerta" is not confined to Italians. It is a common attribute of all who are opposed to authority of any kind, including small boys and criminals, and with the latter arises no more from a half chivalrous loyalty to their fellows than it does from hatred of the police and a uniform desire to block their efforts (even if a personal adversary should go unpunished in consequence), fear that complaint made or assistance given to the authorities will result in vengeance being taken upon the complainant by some comrade or relative of the accused, distrust of the ability of the police to do anything anyway, disgust at the delay involved, and lastly, if not chiefly, the realization that as a witness in a court of justice the informer as a professional criminal would have little or no standing or credence, and in addition would, under cross-examination, be compelled to lay bare the secrets of his unsavory past, perhaps resulting indirectly in a term in prison for himself.* Thus may be accounted for much of the supposed "romantic, if misguided, chivalry" of the south Italian. It is common both to him and to the Bowery tough. The writer knew personally a professional crook who was twice almost shot to pieces in Chatham Square, New York City, and who persistently declined, even on his dying bed, to give a hint of the identity of his assassins, announcing that if he got well he "would attend to that little matter himself." Much of the romance surrounding crime and criminals, on examination, "fades into the light of common day"--the obvious product not of idealism, but of well-calculated self-interest. * Much more likely in Italy than in the United States. As illustrating the backwardness of our Italian fellow-citizens in coming forward when the criminality of one of their countrymen is at stake, the last three cases of kidnapping in New York City may be mentioned. About a year and a half ago the little boy of Dr. Scimeca, of 2 Prince Street, New York, was taken from his home. From outside sources the police heard that the child had been stolen, but, although he was receiving constant letters and telephonic communications from the kidnappers, Dr. Scimeca would not give them any information. It is known on pretty good authority that the sum of $10,000 was at first demanded as a ransom, and was lowered by degrees to $5,000, $2,500, and finally to $1,700. Dr. Scimeca at last made terms with the kidnappers, and was told to go one evening to City Park, where he is said to have handed $1,700 to a stranger. The child was found wandering aimlessly in the streets next day, after a detention of nearly three months. The second case was that of Vincenzo Sabello, a grocer of 386 Broome Street, who lost his little boy on August 26, 1911. After thirty days he reported the matter to the police, but shortly after tried to throw them off the track by saying that he had been mistaken, that the boy had not been kidnapped, and that he wished no assistance. Finally he ordered the detectives out of his place. About a month later the child was recovered, but not, according to reliable information, until Mr. Sabello had handed over $2,500. Pending the recovery of the Sabello boy, a third child was stolen from the top floor of a house at 119 Elizabeth Street. The father, Leonardo Quartiano, reported the disappearance, and in answer to questions stated that he had received no letters or telephone messages. "Why should I?" he inquired, with uplifted hands and the most guileless demeanor. "I am poor! I am a humble fishmonger." In point of fact, Quartiano at the time had a pocketful of blackmail letters, and after four weeks paid a good ransom and got back his boy. It is impossible to estimate correctly the number of Italian criminals in America or their influence upon our police statistics; but in several classes of crime the Italians furnish from fifteen to fifty per cent of those convicted. In murder, assault with intent to kill, blackmail, and extortion they head the list, as well as in certain other offences unnecessary to describe more fully but prevalent in Naples and the South. Joseph Petrosino, the able and fearless officer of New York police who was murdered in Palermo while in the service of the country of his adoption, was, while he lived, our greatest guaranty of protection against the Italian criminal. But Petrosino is gone. The fear of him no longer will deter Italian ex-convicts from seeking asylum in the United States. He once told the writer that there were five thousand Italian ex-convicts in New York City alone, of whom he knew a large proportion by sight and name.* Signor Ferrero, the noted historian, is reported to have stated, on his recent visit to America, that there were thirty thousand Italian criminals in New York City. Whatever their actual number, there are quite enough at all events. *Petrosino is a national hero in Italy, where he was known as "Il Sherlock Holmes d'Italia"--"the Italian Sherlock Holmes." Many novels in which he figures as the central character have a wide circulation there. By far the greater portion of these criminals, whether ex-convicts or novices, are the products or byproducts of the influence of the two great secret societies of southern Italy. These societies and the unorganized criminal propensity and atmosphere which they generate, are known as the "Mala Vita." The Mafia, a purely Sicilian product, exerts a much more obvious influence in America than the Camorra, since the Mafia is powerful all over Sicily, while the Camorra is practically confined to the city of Naples and its environs. The Sicilians in America vastly outnumber the Neapolitans. Thus in New York City for every one Camorrist you will find seven or eight Mafiusi. But they are all essentially of a piece, and the artificial distinction between them in Italy disappears entirely in America. Historically the Mafia burst from a soil fertilized by the blood of martyred patriots, and represented the revolt of the people against all forms of the tyrannous government of the Bourbons; but the fact remains that, whatever its origin, the Mafia to-day is a criminal organization, having, like the Camorra, for its ultimate object blackmail and extortion. Its lower ranks are recruited from the scum of Palermo, who, combining extraordinary physical courage with the lowest type of viciousness, generally live by the same means that supports the East Side "cadet" in New York City, and who end either in prison or on the dissecting-table, or gradually develop into real Mafiusi and perhaps gain some influence. It is, in addition, an ultra-successful criminal political machine, which, under cover of a pseudoprinciple, deals in petty crime, wholesale blackmail, political jobbery, and the sale of elections, and may fairly be compared to the lowest types of politico-criminal clubs or societies in New York City. In Palmero it is made up of "gangs" of toughs and criminals, not unlike the Camorrist gangs of Naples, but without their organization, and is kept together by personal allegiance to some leader. Such a leader is almost always under the patronage of a "boss" in New York or a 'padrone' in Italy, who uses his influence to protect the members of the gang when in legal difficulties and find them jobs when out of work and in need of funds. Thus the "boss" can rely on the gang's assistance in elections in return for favors at other times. Such gangs may act in harmony or be in open hostility or conflict with one another, but all are united as against the police, and exhibit much the same sort of "Omerta" in Chatham Square as in Palermo. The difference between the Mafia and Camorra and the "gangs" of New York City lies in the fact that the latter are so much less numerous and powerful, and bribery and corruption so much less prevalent, that they can exert no practical influence in politics outside the Board of Aldermen, whereas the Italian societies of the Mala Vita exert an influence everywhere--in the Chamber of Deputies, the Cabinet, and even closer to the King. In fact, political corruption has been and still is of a character in Italy luckily unknown in America--not in the amounts of money paid over (which are large enough), but in the calm and matter-of-fact attitude adopted toward the subject in Parliament and elsewhere. The overwhelming majority of Italian criminals in this country come from Sicily, Calabria, Naples, and its environs. They have lived, most of their lives, upon the ignorance, fear, and superstitions of their fellow-countrymen. They know that so long as they confine their criminal operations to Italians of the lower class they need have little terror of the law, since, if need be, their victims will harbor them from the police and perjure themselves in their defence. For the ignorant Italian brings to this country with him the same attitude toward government and the same distrust of the law that characterized him and his fellow-townsmen at home, the same Omerta that makes it so difficult to convict any Italian of a serious offence. The Italian crook is quick-witted and soon grasps the legal situation. He finds his fellow countrymen prospering, for they are generally a hard-working and thrifty lot, and he proceeds to levy tribute on them just as he did in Naples or Palermo. If they refuse his demands, stabbing or bomb-throwing show that he has lost none of his ferocity. Where they are of the most ignorant type he threatens them with the "evil eye," the "curse of God," or even with sorceries. The number of Italians who can be thus terrorized is astonishing. Of course, the mere possibility of such things argues a state of mediaevalism. But mere mediaevalism would be comparatively unimportant did it not supply the principal element favorable to the growth of the Mala Vita, apprehended with so much dread by many of the citizens of the United States. Now, what are the phases of the Mala Vita--the Camorra, the Black Hand, the Mafia--which are to-day observable in the United States and which may reasonably be anticipated in the future? In the first place, it may be safely said that of the Camorra in its historic sense--the Camorra of the ritual, of the "Capo in Testa" and "Capo in Trino," highly organized with a self-perpetuating body of officers acting under a supreme head--there is no trace. Indeed, as has already been explained, this phase of the Camorra, save in the prisons, is practically over, even in Naples. But of the Mala Vita there is evidence enough. Every large city, where people exist under unwholesome conditions, has some such phenomenon. In Palermo we have the traditional Mafia--a state of mind, if you will, ineradicable and all-pervasive. Naples festers with the Camorra as with a venereal disease, its whole body politic infected with it, so that its very breath is foul and its moral eyesight astigmatized. In Paris we find the Apache, abortive offspring of prostitution and brutality, the twin brother of the Camorrista. In New York there are the "gangs," composed of pimps, thugs, cheap thieves, and hangers-on of criminals, which rise and wane in power according to the honesty and efficiency of the police, and who, from time to time, hold much the same relations to police captains and inspectors as the various gangs of the Neapolitan Camorra do to commissaries and delegati of the "Public Safety." Corresponding to these, we have the "Black Hand" gangs among the Italian population of our largest cities. Sometimes the two coalesce, so that in the second generation we occasionally find an Italian, like Paul Kelly, leading a gang composed of other Italians, Irish-Americans, and "tough guys" of all nationalities. But the genuine Black Hander (the real Camorrist or "Mafiuoso") works alone or with two or three of his fellow-countrymen. Curiously enough, there is a society of criminal young men in New York City who are almost the exact counterpart of the Apaches of Paris. They are known by the euphonious name of "Waps" or "Jacks." These are young Italian-Americans who allow themselves to be supported by one or two women, almost never of their own race. These pimps affect a peculiar cut of hair, and dress with half-turned-up velvet collar, not unlike the old-time Camorrist, and have manners and customs of their own. They frequent the lowest order of dance-halls, and are easily known by their picturesque styles of dancing, of which the most popular is yclept the "Nigger." They form one variety of the many "gangs" that infest the city, are as quick to flash a knife as the Apaches, and, as a cult by themselves, form an interesting sociological study. The majority of the followers of the Mala Vita--the Black Handers--are not actually of Italian birth, but belong to the second generation. As children they avoid school, later haunt "pool" parlors and saloons, and soon become infected with a desire for "easy money," which makes them glad to follow the lead of some experienced capo maestra. To them he is a sort of demi-god, and they readily become his clients in crime, taking their wages in experience or whatever part of the proceeds he doles out to them. Usually the "boss" tells them nothing of the inner workings of his plots. They are merely instructed to deliver a letter or to blow up a tenement. The same name is used by the Black Hander to-day for his "assistant" or "apprentice" who actually commits a crime as that by which he was known under the Bourbons in 1820. In those early days the second-grade member of the Camorra was known as a picciotto. To-day the apprentice or "helper" of the Black Hander is termed a picciott' in the clipped dialect of the South. But the picciotto of New York is never raised to the grade of Camorrista, since the organization of the Camorra has never been transferred to this country. Instead he becomes in course of time a sort of bully or bad man on his own hook, a criminal "swell," who does no manual labor, rarely commits a crime with his own hands, and lives by his brain. Such a one was Micelli Palliozzi, arrested for the kidnapping of the Scimeca and Sabello children mentioned above--a dandy who did nothing but swagger around the Italian quarter. Generally each capo maestra works for himself with his own handful of followers, who may or may not enjoy his confidence, and each gang has its own territory, held sacred by the others. The leaders all know each other, but never trespass upon the others' preserves, and rarely attempt to blackmail or terrorize any one but Italians. They gather around them associates from their own part of Italy, or the sons of men whom they have known at home. Thus for a long time Costabili was leader of the Calabrian Camorra in New York, and held undisputed sway of the territory south of Houston Street as far as Canal Street and from Broadway to the East River. On September 15, last, Costabili was caught with a bomb in his hand, and he is now doing a three-year bit up the river. Sic transit gloria mundi! The Italian criminal and his American offspring have a sincere contempt for American criminal law. They are used by experience or tradition to arbitrary police methods and prosecutions unhampered by Anglo-Saxon rules of evidence. When the Italian crook is actually brought to the bar of justice at home, that he will "go" is generally a foregone conclusion. There need be no complainant in Italy. The government is the whole thing there. But, in America, if the criminal can "reach" the complaining witness or "call him off" he has nothing to worry about. This he knows he can easily do through the terror of the Camorra. And thus he knows that the chances he takes are comparatively small, including that of conviction if he is ever tried by a jury of his American peers, who are loath to find a man guilty whose language and motives they are unable to understand. All this the young Camorrist is perfectly aware of and gambles on. One of the unique phenomena of the Mala Vita in America is the class of Italians who are known as "men of honor." These are native Italians who have been convicted of crime in their own country and have either made their escape or served their terms. Some of these may have been counterfeiters at home. They come to America either as stokers, sailors, stewards, or stowaways, and, while they can not get passports, it is surprising how lax the authorities are in permitting their escape. The spirit of the Italian law is willing enough, but its fleshly enforcement is curiously weak. Those who have money enough manage to reach France or Holland and come over first or second-class. The main fact is that they get here--law or no law. Once they arrive in America, they realize their opportunities and actually start in to turn over a new leaf. They work hard; they become honest. They may have been Camorrists or Mafiusi at home, but they are so no longer. They are "on the level," and stay so; only--they are "men of honor." And what is the meaning of that? Simply that they keep their mouths, eyes, and ears shut so far as the Mala Vita is concerned. They are not against it. They might even assist it passively. Many of these erstwhile criminals pay through the nose for respectability--the Camorrist after his kind, the Mafius' after his kind. Sometimes the banker who is paying to a Camorrist is blackmailed by a Mafius'. He straightway complains to his own bad man, who goes to the "butter-in" and says in effect: "Here! What are you doing? Don't you know So-and-So is under my protection?" "Oh!" answers the Mafius'. "Is he? Well, if that is so, I'll leave him alone--as long as he is paying for protection by somebody." The reader will observe how the silence of "the man of honor" is not remotely associated with the Omerta. As a rule, however, the "men of honor" form a privileged and negatively righteous class, and are let strictly alone by virtue of their evil past. The number of south Italians who now occupy positions of respectability in New York and who have criminal records on the other side would astound even their compatriots. Even several well-known business men, bankers, journalists, and others have been convicted of something or other in Italy. Occasionally they have been sent to jail; more often they have been convicted in their absence--condannati in contumacia--and dare not return to their native land. Sometimes the offences have been serious, others have been merely technical. At least one popular Italian banker in New York has been convicted of murder--but the matter was arranged at home so that he treats it in a humourous vein. Two other bankers are fugitives from justice, and at least one editor. To-day most of these men are really respectable citizens. Of course some of them are a bad lot, but they are known and avoided. Yet the fact that even the better class of Italians in New York are thoroughly familiar with the phenomena surrounding the Mala Vita is favorable to the spread of a certain amount of Camorrist activity. There are a number of influential bosses, or capi maestra, who are ready to undertake almost any kind of a job for from twenty dollars up, or on a percentage. Here is an illustration. A well-known Italian importer in New York City was owed the sum of three thousand dollars by an other Italian, to whom he had loaned the money without security and who had abused his confidence. Finding that the debtor intended to cheat him out of the money, although he could easily have raised the amount of the debt had he so wished, the importer sent for a Camorrist and told him the story. "You shall be paid," said the Camorrist. Two weeks later the importer was summoned to a cellar on Mott Street. The Camorrist conducted him down the stairs and opened the door. A candle-end flaring on a barrel showed the room crowded with rough-looking Italians and the debtor crouching in a corner. The Camorrist motioned to the terrified victim to seat himself by the barrel. No word was spoken and amid deathly silence the man obeyed. At last the Camorrist turned to the importer and said: "This man owes you three thousand dollars, I believe." The importer nodded. "Pay what you justly owe," ordered the Camorrist. Slowly the reluctant debtor produced a roll of bills and counted them out upon the barrel-head. At five hundred he stopped and looked at the Camorrist. "Go on!" directed the latter. So the other, with beads of sweat on his brow, continued until he reached the two thousand-dollar mark. Here the bills seemed exhausted. The importer by this time began to feel a certain reticence about his part in the matter--there might be some widows and orphans somewhere. The bad man looked inquiringly at him, and the importer mumbled something to the effect that he "would let it go at that." But the bad man misunderstood what his client had said and ordered the bankrupt to proceed. So he did proceed to pull out another thousand dollars from an inside pocket and add it to the pile on the barrel-head. The Camorrist nodded, picked up the money, recounted it, and removed three hundred dollars, handing the rest to the importer. "I have deducted the camorra," said he. The bravos formed a line along the cellar to the door, and, as the importer passed on his way out, each removed his hat and wished him a buona sera. That importer certainly will never contribute toward a society for the purpose of eradicating the "Black Hand" from the city of New York. He says it is the greatest thing he knows. But the genuine Camorrist or Mafius' would be highly indignant at being called a "Black Hander." His is an ancient and honorable profession; he is no common criminal, but a "man peculiarly sensitive in matters of honor," who for a consideration will see that others keep their honorable agreements. The writer has received authoritative reports of three instances of extortion which are probably prototypes of many other varieties. The first is interesting because it shows a Mafius' plying his regular business and coming here for that precise purpose. There is a large wholesale lemon trade in New York City, and various growers in Italy compete for it. Not long past, a well-dressed Italian of good appearance and address rented an office in the World Building. His name on the door bore the suffix "Agent." He was, indeed, a most effective one, and he secured practically all the lemon business among the Italians for his principals, for he was a famous capo ma mafia, and his customers knew that if they did not buy from the growers under his "protection" that something might, and very probably would, happen to their families in or near Palermo. At any rate, few of them took any chances in the matter, and his trip to America was a financial success. In much the same way a notorious crook named Lupo forced all the retail Italian grocers to buy from him, although his prices were considerably higher than those of his competitors. Even Americans have not been slow to avail themselves of Camorrist methods. There is a sewing machine company which sells its machines to Italian families on the instalment plan. A regular agent solicits the orders, places the machines, and collects the initial dollar; but the moment a subscriber in Mulberry Street falls in arrears his or her name is placed on a black list, which is turned over by this enterprising business house to a "collector," who is none other than the leading Camorrist, "bad man," or Black Hander of the neighborhood. A knock on the door from his fist, followed by the connotative expression on his face, results almost uniformly in immediate payment of all that is due. Needless to say, he gets his camorra--a good one--on the money that otherwise might never be obtained. It is probable that we should have this kind of thing among the Italians in America even if the Neapolitan Camorra and the Sicilian Mafia had never existed, for it is the precise kind of crime that seems to be spontaneously generated among a suspicious, ignorant, and superstitious people. The Italian is keenly alive to the dramatic, sensational, and picturesque; he loves to intrigue, and will imagine plots against him when none exists. If an Italian is late for a business engagement the man with whom he has his appointment will be convinced that there is some conspiracy afoot, even if his friend has merely been delayed by a block on the subway. Thus, he is a good subject for any wily lago that happens along. The Italians in America are the most thrifty of all our immigrant citizens. In five years their deposits in the banks of New York State amounted to over one hundred million dollars. The local Italian crooks avail themselves of the universal fear of the vendetta, and let it be generally known that trouble will visit the banker or importer who does not "come across" handsomely. In most cases these Black Handers are ex-convicts with a pretty general reputation as "bad men." It is not necessary for them to phrase their demands. The tradesman who is honored with a morning call from one of this gentry does not need to be told the object of the visit. The mere presence of the fellow is a threat; and if it is not acceded to, the front of the building will probably be blown out by a dynamite bomb in the course of the next six weeks--whenever the gang of which the bad man is the leader can get around to it. And the bad man may perhaps have a still badder man who is preying upon HIM. Very often one of these leaders or bosses will run two or three groups, all operating at the same time. They meet in the back rooms of saloons behind locked doors, under pretence of wishing to play a game of zecchinetta unmolested, or in the gloaming in the middle of a city park or undeveloped property on the outskirts. There the different members of the gang get their orders and stations, and perhaps a few dollars advance wages. It is naturally quite impossible to guess the number of successful and unsuccessful attempts at blackmail among Italians, as the amount of undiscovered crime throughout the country at large is incomputable. No word of it comes from the lips of the victims, who are in mortal terror of the vendetta--of meeting some casual stranger on the street who will significantly draw the forefinger of his right hand across his throat. There is rather more chance to find and convict a kidnapper than a bomb-thrower, so that, as a means of extortion, child-snatching is less popular than the mere demand for the victim's money or his life. On the other hand it is probably much more effective in accomplishing its result. But America will not stand for kidnapping, and, although the latter occurs occasionally, the number of cases is insignificant compared with those in which dynamite is the chief factor. In 1908, there were forty-four bomb outrages reported in New York City. There were seventy arrests and nine convictions. During the present year (1911) there have been about sixty bomb cases, but there have been none since September 8, since Detective Carrao captured Rizzi, a picciott', in the act of lighting a bomb in the hallway of a tenement house. This case of Rizzi is an enlightening one for the student of social conditions in New York, for Rizzi was no Orsini, not even a Guy Fawks, nor yet was he an outlaw in his own name. He was simply a picciott' (pronounced "pish-ot") who did what he was told in order that some other man who did know why might carry out a threat to blow up somebody who had refused to be blackmailed. It is practically impossible to get inside the complicated emotions and motives that lead a man to become an understudy in dynamiting. Rizzi probably got well paid; at any rate, he was constantly demonstrating his fitness "to do big things in a big way," and be received into the small company of the elect--to go forth and blackmail on his own hook and hire some other picciott' to set off the bombs. Whoever the capo maestra that Rizzi worked for, he was not only a deep-dyed villain, but a brainy one. The gang hired a store and pretended to be engaged in the milk business. They carried the bombs in the steel trays holding the milk bottles and cans, and, in the costume of peaceful vendors of the lacteal fluid, they entered the tenements and did their damage to such as failed to pay them tribute. The manner of his capture was dramatic. A real milkman for whom Rizzi had worked in the past was marked out for slaughter. He had been blown up twice already. While he slept his wife heard some one moving in the hall. Looking out through a small window, she saw the ex-employee fumble with something and then turn out the gas on the landing. Her husband, awakened by her exit and return, asked sleepily what the matter was. "I saw Rizzi out in the hall," she answered. "It was funny-he put out the light!" In a moment the milkman was out of bed and gazing, with his wife, into the street. They saw Rizzi come down with his tray and pass out of sight. So did a couple of Italian detectives from Headquarters who had been following him and now, at his very heels, watched him enter another tenement, take a bomb from his tray, and ignite a time fuse. They caught him with the thing alight in his hand. Meanwhile the other bomb had gone off and blown up the milkman's tenement. There is some ancient history in regard to these matters which ought to be retold in the light of modern knowledge; for example, the case of Patti, the Sicilian banker. He had a prosperous institution in which were deposited the earnings of many Italians, poor and wealthy. Lupo's gang got after him and demanded a large sum for "protection." But Patti had a disinclination to give up, and refused. At the time his refusal was attributed to high civic ideals, and he was lauded as a hero. Anyhow, he defied the Mafia, laid in a stock of revolvers and rifles, and rallied his friends around him. But the news got abroad that Lupo was after Patti, and there was a run on Patti's bank. It was a big run, and some of the depositors gesticulated and threatened--for Patti couldn't pay it all out in a minute. Then there was some kind of a row, and Patti and his friends (claiming that the Mafia had arrived) opened fire, killing one man and wounding others. The newspapers praised Patti for a brave and stalwart citizen. Maybe he was. After the smoke had cleared away, however, he disappeared with all his depositors' money, and now it has been discovered that the man he killed was a depositor and not a Black Hander. The police are still looking for him. This case seems a fairly good illustration of the endless opportunity for wrong-doing possible in a state of society where extortion is permitted to exist--where the laws are not enforced--where there is a "higher" sanction than the code. Whether Patti was a good or a bad man, he might easily have killed an enemy in revenge and got off scot-free on the mere claim that the other was blackmailing him; just as an American in some parts of our country can kill almost anybody and rely on being acquitted by a jury, provided he is willing to swear that the deceased had made improper advances to his wife. The prevention of kidnapping, bomb-throwing, and the other allied manifestations of the Black Hand depends entirely upon the activity of the police--particularly the Italian detectives, who should form an inevitable part of the force in every large city. The fact of the matter is that we never dreamed of a real "Italian peril" (or, more accurately, a real "Sicilian peril") until about the year 1900. Then we woke up to what was going on--it had already gone a good way--and started in to put an end to it. Petrosino did put an end to much of it, and at the present time it is largely sporadic. Yet there will always be a halo about the heads of the real Camorrists and Mafiusi--the Alfanos and the Rapis--in the eyes of their simple-minded countrymen in the United States. Occasionally one of these big guns arrives at an American port of entry, coming first-class via Havre or Liverpool, having made his exit from Italy without a passport. Then the Camorrists of New York and Brooklyn get busy for a month or so, raising money for the boys at home and knowing that they will reap their reward if ever they go back. The popular method of collecting is for the principal capo maestra, or temporary boss of Mulberry Street, to "give" a banquet at which all "friends" must be present--at five dollars per head. No one cares to be conspicuous by reason of his absence, and the hero returns to Italy with a large-sized draft on Naples or Palermo. Meanwhile the criminal driven out of his own country has but to secure transportation to New York to find himself in a rich field for his activities; and once he has landed and observed the demoralization often existing from political or other reasons in our local forces of police and our uncertain methods of administering justice (particularly where the defendant is a foreigner), he rapidly becomes convinced that America is not only the country of liberty but of license--to commit crime. Most Italian crooks come to the United States not merely some time or other, but at intervals. Practically all of the Camorrist defendants on trial at Viterbo have been in the United States, and all will be here soon again, after their discharge, unless steps are taken to keep them out. Luckily, it is a fact that so much has been written in American newspapers and periodicals in the past few years about the danger of the Black Hand and the criminals from south Italy that the authorities on the other side have allowed a rumor to be circulated that the climate of South America is peculiarly adapted to persons whose lungs have become weakened from confinement in prison. In fact, at the present time more Italian criminals seek asylum in the Argentine than in the United States. Theoretically, of course, as no convict can procure a passport, none of them leave Italy at all--but that is one of the humors of diplomacy. The approved method among the continental countries of Europe of getting rid of their criminals is to induce them to "move on." A lot of them keep "moving on" until they land in America. Of course, the police should be able to cope with the Black Hand problem, and, with a free use of Italian detectives who speak the dialects and know their quarry, we may gradually, in the course of fifteen years or so, see the entire disappearance of this particular criminal phenomenon. But an ounce of prevention is worth--several tons of cure. Petrosino claimed--not boastfully--that he could, with proper deportation laws behind him, exterminate the Black Hand throughout the United States in three months. But, as far as the future is concerned, a solution of the problem exists--a solution so simple that only a statesman could explain why it has not been adopted long years ago. The statutes in force at Ellis Island permit the exclusion of immigrants who have been guilty of crimes involving moral turpitude in their native land, but do not provide for the compulsory production of the applicants' "penal certificate" under penalty of deportation. Every Italian emigrant is obliged to secure a certified document from the police authorities of his native place, giving his entire criminal record or showing that he has had none, and without it he can not obtain a passport. For several years efforts have been made to insert in our immigration laws a provision that every immigrant from a country issuing such a certificate must produce it before he can be sure of admission to the United States. If this proposed law should be passed by Congress the exclusion of Italian criminals would be almost automatic. But if it or some similar provisions fails to become law, it is not too much to say that we may well anticipate a Camorra of some sort in every locality in our country having a large Italian population. Yet government moves slowly, and action halts while diplomacy sagely shakes its head over the official cigarette. A bill amending the present law to this effect has received the enthusiastic approval of the immigration authorities and of the President. At first the Italian officials here and abroad expressed themselves as heartily in sympathy with this proposed addition to the excluded classes; but, once the bill was drawn and submitted to Congress, some of these same officials entered violent protests against it, on the ground that such a provision discriminated unfairly against Italy and the other countries issuing such certificates. The result of this has been to delay all action on the bill which is now being held in committee. Meanwhile the Black Hander is arriving almost daily, and we have no adequate laws to keep him out. 
5180	----	IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION INC., et al. : : v. : : UNITED STATES, et al. : NO. 01-1303 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MULTNOMAH COUNTY PUBLIC : CIVIL ACTION LIBRARY, et al. : : v. : : UNITED STATES OF AMERICA, et al. : NO. 01-1322 Before: BECKER, Chief Circuit Judge, FULLAM and BARTLE, District Judges. OPINION OF THE COURT May 31, 2002 Becker, Chief Circuit Judge CONTENTS I. Preliminary Statement II. Findings of Fact A. Statutory Framework 1. Nature and Operation of the E-rate and LSTA Programs 2. CIPA a. CIPA's Amendments to the E-rate Program b. CIPA's Amendments to the LSTA Program B. Identity of the Plaintiffs 1. Library and Library Association Plaintiffs 2. Patron and Patron Association Plaintiffs 3. Web Publisher Plaintiffs C. The Internet 1. Background 2. The Indexable Web, the "Deep Web"; Their Size and Rates of Growth and Change 3. The Amount of Sexually Explicit Material on the Web D. American Public Libraries 1. The Mission of Public Libraries, and Their Reference and Collection Development Practices 2. The Internet in Public Libraries a. Internet Use Policies in Public Libraries b. Methods for Regulating Internet Use E. Internet Filtering Technology 1. What Is Filtering Software, Who Makes It, and What Does It Do? 2. The Methods that Filtering Companies Use to Compile Category Lists a. The "Harvesting" Phase b. The "Winnowing" or Categorization Phase c. The Process for "Re-Reviewing" Web Pages After Their Initial Categorization 3. The Inherent Tradeoff Between Overblocking and Underblocking 4. Attempts to Quantify Filtering Programs' Rates of Over- and Underblocking 5. Methods of Obtaining Examples of Erroneously Blocked Web Sites 6. Examples of Erroneously Blocked Web Sites 7. Conclusion: The Effectiveness of Filtering Programs III. Analytic Framework for the Opinion: The Centrality of Dole and the Role of the Facial Challenge IV. Level of Scrutiny Applicable to Content-based Restrictions on Internet Access in Public Libraries A. Overview of Public Forum Doctrine B. Contours of the Relevant Forum: the Library's Collection as a Whole or the Provision of Internet Access? C. Content-based Restrictions in Designated Public Fora D. Reasons for Applying Strict Scrutiny 1. Selective Exclusion From a "Vast Democratic Forum" 2. Analogy to Traditional Public Fora V. Application of Strict Scrutiny A. State Interests 1. Preventing the Dissemination of Obscenity, Child Pornography, and Material Harmful to Minors 2. Protecting the Unwilling Viewer 3. Preventing Unlawful or Inappropriate Conduct 4. Summary B. Narrow Tailoring C. Less Restrictive Alternatives D. Do CIPA's Disabling Provisions Cure the Defect? VI. Conclusion; Severability FOOTNOTES 1. Preliminary Statement This case challenges an act of Congress that makes the use of filtering software by public libraries a condition of the receipt of federal funding. The Internet, as is well known, is a vast, interactive medium based on a decentralized network of computers around the world. Its most familiar feature is the World Wide Web (the "Web"), a network of computers known as servers that provide content to users. The Internet provides easy access to anyone who wishes to provide or distribute information to a worldwide audience; it is used by more than 143 million Americans. Indeed, much of the world's knowledge accumulated over centuries is available to Internet users almost instantly. Approximately 10% of the Americans who use the Internet access it at public libraries. And approximately 95% of all public libraries in the United States provide public access to the Internet. While the beneficial effect of the Internet in expanding the amount of information available to its users is self-evident, its low entry barriers have also led to a perverse result – facilitation of the widespread dissemination of hardcore pornography within the easy reach not only of adults who have every right to access it (so long as it is not legally obscene or child pornography), but also of children and adolescents to whom it may be quite harmful. The volume of pornography on the Internet is huge, and the record before us demonstrates that public library patrons of all ages, many from ages 11 to 15, have regularly sought to access it in public library settings. There are more than 100,000 pornographic Web sites that can be accessed for free and without providing any registration information, and tens of thousands of Web sites contain child pornography. Libraries have reacted to this situation by utilizing a number of means designed to insure that patrons avoid illegal (and unwanted) content while also enabling patrons to find the content they desire. Some libraries have trained patrons in how to use the Internet while avoiding illegal content, or have directed their patrons to "preferred" Web sites that librarians have reviewed. Other libraries have utilized such devices as recessing the computer monitors, installing privacy screens, and monitoring implemented by a "tap on the shoulder" of patrons perceived to be offending library policy. Still others, viewing the foregoing approaches as inadequate or uncomfortable (some librarians do not wish to confront patrons), have purchased commercially available software that blocks certain categories of material deemed by the library board as unsuitable for use in their facilities. Indeed, 7% of American public libraries use blocking software for adults. Although such programs are somewhat effective in blocking large quantities of pornography, they are blunt instruments that not only "underblock," i.e., fail to block access to substantial amounts of content that the library boards wish to exclude, but also, central to this litigation, "overblock," i.e., block access to large quantities of material that library boards do not wish to exclude and that is constitutionally protected. Most of the libraries that use filtering software seek to block sexually explicit speech. While most libraries include in their physical collection copies of volumes such as The Joy of Sex and The Joy of Gay Sex, which contain quite explicit photographs and descriptions, filtering software blocks large quantities of other, comparable information about health and sexuality that adults and teenagers seek on the Web. One teenager testified that the Internet access in a public library was the only venue in which she could obtain information important to her about her own sexuality. Another library patron witness described using the Internet to research breast cancer and reconstructive surgery for his mother who had breast surgery. Even though some filtering programs contain exceptions for health and education, the exceptions do not solve the problem of overblocking constitutionally protected material. Moreover, as we explain below, the filtering software on which the parties presented evidence in this case overblocks not only information relating to health and sexuality that might be mistaken for pornography or erotica, but also vast numbers of Web pages and sites that could not even arguably be construed as harmful or inappropriate for adults or minors. The Congress, sharing the concerns of many library boards, enacted the Children's Internet Protection Act ("CIPA"), Pub. L. No. 106-554, which makes the use of filters by a public library a condition of its receipt of two kinds of subsidies that are important (or even critical) to the budgets of many public libraries – grants under the Library Services and Technology Act, 20 U.S.C. Sec. 9101 et seq. ("LSTA"), and so-called "E-rate discounts" for Internet access and support under the Telecommunications Act, 47 U.S.C. Sec. 254. LSTA grant funds are awarded, inter alia, in order to: (1) assist libraries in accessing information through electronic networks, and (2) provide targeted library and information services to persons having difficulty using a library and to underserved and rural communities, including children from families with incomes below the poverty line. E-rate discounts serve the similar purpose of extending Internet access to schools and libraries in low-income communities. CIPA requires that libraries, in order to receive LSTA funds or E-rate discounts, certify that they are using a "technology protection measure" that prevents patrons from accessing "visual depictions" that are "obscene," "child pornography," or in the case of minors, "harmful to minors." 20 U.S.C. Sec. 9134(f)(1)(A) (LSTA); 47 U.S.C. Sec. 254(h)(6)(B) & (C) (E- rate). The plaintiffs, a group of libraries, library associations, library patrons, and Web site publishers, brought this suit against the United States and others alleging that CIPA is facially unconstitutional because: (1) it induces public libraries to violate their patrons' First Amendment rights contrary to the requirements of South Dakota v. Dole, 483 U.S. 203 (1987); and (2) it requires libraries to relinquish their First Amendment rights as a condition on the receipt of federal funds and is therefore impermissible under the doctrine of unconstitutional conditions. In arguing that CIPA will induce public libraries to violate the First Amendment, the plaintiffs contend that given the limits of the filtering technology, CIPA's conditions effectively require libraries to impose content-based restrictions on their patrons' access to constitutionally protected speech. According to the plaintiffs, these content- based restrictions are subject to strict scrutiny under public forum doctrine, see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 837 (1995), and are therefore permissible only if they are narrowly tailored to further a compelling state interest and no less restrictive alternatives would further that interest, see Reno v. ACLU, 521 U.S. 844, 874 (1997). The government responds that CIPA will not induce public libraries to violate the First Amendment, since it is possible for at least some public libraries to constitutionally comply with CIPA's conditions. Even if some libraries' use of filters might violate the First Amendment, the government submits that CIPA can be facially invalidated only if it is impossible for any public library to comply with its conditions without violating the First Amendment. Pursuant to CIPA, a three-judge Court was convened to try the issues. Pub. L. No. 106-554. Following an intensive period of discovery on an expedited schedule to allow public libraries to know whether they need to certify compliance with CIPA by July 1, 2002, to receive subsidies for the upcoming year, the Court conducted an eight-day trial at which we heard 20 witnesses, and received numerous depositions, stipulations and documents. The principal focus of the trial was on the capacity of currently available filtering software. The plaintiffs adduced substantial evidence not only that filtering programs bar access to a substantial amount of speech on the Internet that is clearly constitutionally protected for adults and minors, but also that these programs are intrinsically unable to block only illegal Internet content while simultaneously allowing access to all protected speech. As our extensive findings of fact reflect, the plaintiffs demonstrated that thousands of Web pages containing protected speech are wrongly blocked by the four leading filtering programs, and these pages represent only a fraction of Web pages wrongly blocked by the programs. The plaintiffs' evidence explained that the problems faced by the manufacturers and vendors of filtering software are legion. The Web is extremely dynamic, with an estimated 1.5 million new pages added every day and the contents of existing Web pages changing very rapidly. The category lists maintained by the blocking programs are considered to be proprietary information, and hence are unavailable to customers or the general public for review, so that public libraries that select categories when implementing filtering software do not really know what they are blocking. There are many reasons why filtering software suffers from extensive over- and underblocking, which we will explain below in great detail. They center on the limitations on filtering companies' ability to: (1) accurately collect Web pages that potentially fall into a blocked category (e.g., pornography); (2) review and categorize Web pages that they have collected; and (3) engage in regular re-review of Web pages that they have previously reviewed. These failures spring from constraints on the technology of automated classification systems, and the limitations inherent in human review, including error, misjudgment, and scarce resources, which we describe in detail infra at 58-74. One failure of critical importance is that the automated systems that filtering companies use to collect Web pages for classification are able to search only text, not images. This is crippling to filtering companies' ability to collect pages containing "visual depictions" that are obscene, child pornography, or harmful to minors, as CIPA requires. As will appear, we find that it is currently impossible, given the Internet's size, rate of growth, rate of change, and architecture, and given the state of the art of automated classification systems, to develop a filter that neither underblocks nor overblocks a substantial amount of speech. The government, while acknowledging that the filtering software is imperfect, maintains that it is nonetheless quite effective, and that it successfully blocks the vast majority of the Web pages that meet filtering companies' category definitions (e.g., pornography). The government contends that no more is required. In its view, so long as the filtering software selected by the libraries screens out the bulk of the Web pages proscribed by CIPA, the libraries have made a reasonable choice which suffices, under the applicable legal principles, to pass constitutional muster in the context of a facial challenge. Central to the government's position is the analogy it advances between Internet filtering and the initial decision of a library to determine which materials to purchase for its print collection. Public libraries have finite budgets and must make choices as to whether to purchase, for example, books on gardening or books on golf. Such content-based decisions, even the plaintiffs concede, are subject to rational basis review and not a stricter form of First Amendment scrutiny. In the government's view, the fact that the Internet reverses the acquisition process and requires the libraries to, in effect, purchase the entire Internet, some of which (e.g., hardcore pornography) it does not want, should not mean that it is chargeable with censorship when it filters out offending material. The legal context in which this extensive factual record is set is complex, implicating a number of constitutional doctrines, including the constitutional limitations on Congress's spending clause power, the unconstitutional conditions doctrine, and subsidiary to these issues, the First Amendment doctrines of prior restraint, vagueness, and overbreadth. There are a number of potential entry points into the analysis, but the most logical is the spending clause jurisprudence in which the seminal case is South Dakota v. Dole, 483 U.S. 203 (1987). Dole outlines four categories of constraints on Congress's exercise of its power under the Spending Clause, but the only Dole condition disputed here is the fourth and last, i.e., whether CIPA requires libraries that receive LSTA funds or E-rate discounts to violate the constitutional rights of their patrons. As will appear, the question is not a simple one, and turns on the level of scrutiny applicable to a public library's content-based restrictions on patrons' Internet access. Whether such restrictions are subject to strict scrutiny, as plaintiffs contend, or only rational basis review, as the government contends, depends on public forum doctrine. The government argues that, in providing Internet access, public libraries do not create a public forum, since public libraries may reserve the right to exclude certain speakers from availing themselves of the forum. Accordingly, the government contends that public libraries' restrictions on patrons' Internet access are subject only to rational basis review. Plaintiffs respond that the government's ability to restrict speech on its own property, as in the case of restrictions on Internet access in public libraries, is not unlimited, and that the more widely the state facilitates the dissemination of private speech in a given forum, the more vulnerable the state's decision is to restrict access to speech in that forum. We agree with the plaintiffs that public libraries' content-based restrictions on their patrons' Internet access are subject to strict scrutiny. In providing even filtered Internet access, public libraries create a public forum open to any speaker around the world to communicate with library patrons via the Internet on a virtually unlimited number of topics. Where the state provides access to a "vast democratic forum[]," Reno v. ACLU, 521 U.S. 844, 868 (1997), open to any member of the public to speak on subjects "as diverse as human thought," id. at 870 (internal quotation marks and citation omitted), the state's decision selectively to exclude from the forum speech whose content the state disfavors is subject to strict scrutiny, as such exclusions risk distorting the marketplace of ideas that the state has facilitated. Application of strict scrutiny finds further support in the extent to which public libraries' provision of Internet access uniquely promotes First Amendment values in a manner analogous to traditional public fora such as streets, sidewalks, and parks, in which content-based restrictions are always subject to strict scrutiny. Under strict scrutiny, a public library's use of filtering software is permissible only if it is narrowly tailored to further a compelling government interest and no less restrictive alternative would serve that interest. We acknowledge that use of filtering software furthers public libraries' legitimate interests in preventing patrons from accessing visual depictions of obscenity, child pornography, or in the case of minors, material harmful to minors. Moreover, use of filters also helps prevent patrons from being unwillingly exposed to patently offensive, sexually explicit content on the Internet. We are sympathetic to the position of the government, believing that it would be desirable if there were a means to ensure that public library patrons could share in the informational bonanza of the Internet while being insulated from materials that meet CIPA's definitions, that is, visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. Unfortunately this outcome, devoutly to be wished, is not available in this less than best of all possible worlds. No category definition used by the blocking programs is identical to the legal definitions of obscenity, child pornography, or material harmful to minors, and, at all events, filtering programs fail to block access to a substantial amount of content on the Internet that falls into the categories defined by CIPA. As will appear, we credit the testimony of plaintiffs' expert Dr. Geoffrey Nunberg that the blocking software is (at least for the foreseeable future) incapable of effectively blocking the majority of materials in the categories defined by CIPA without overblocking a substantial amount of materials. Nunberg's analysis was supported by extensive record evidence. As noted above, this inability to prevent both substantial amounts of underblocking and overblocking stems from several sources, including limitations on the technology that software filtering companies use to gather and review Web pages, limitations on resources for human review of Web pages, and the necessary error that results from human review processes. Because the filtering software mandated by CIPA will block access to substantial amounts of constitutionally protected speech whose suppression serves no legitimate government interest, we are persuaded that a public library's use of software filters is not narrowly tailored to further any of these interests. Moreover, less restrictive alternatives exist that further the government's legitimate interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors, and in preventing patrons from being unwillingly exposed to patently offensive, sexually explicit content. To prevent patrons from accessing visual depictions that are obscene and child pornography, public libraries may enforce Internet use policies that make clear to patrons that the library's Internet terminals may not be used to access illegal speech. Libraries may then impose penalties on patrons who violate these policies, ranging from a warning to notification of law enforcement, in the appropriate case. Less restrictive alternatives to filtering that further libraries' interest in preventing minors from exposure to visual depictions that are harmful to minors include requiring parental consent to or presence during unfiltered access, or restricting minors' unfiltered access to terminals within view of library staff. Finally, optional filtering, privacy screens, recessed monitors, and placement of unfiltered Internet terminals outside of sight- lines provide less restrictive alternatives for libraries to prevent patrons from being unwillingly exposed to sexually explicit content on the Internet. In an effort to avoid the potentially fatal legal implications of the overblocking problem, the government falls back on the ability of the libraries, under CIPA's disabling provisions, see CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(3)), CIPA Sec.1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)), to unblock a site that is patently proper yet improperly blocked. The evidence reflects that libraries can and do unblock the filters when a patron so requests. But it also reflects that requiring library patrons to ask for a Web site to be unblocked will deter many patrons because they are embarrassed, or desire to protect their privacy or remain anonymous. Moreover, the unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries. Accordingly, CIPA's disabling provisions do not cure the constitutional deficiencies in public libraries' use of Internet filters. Under these circumstances we are constrained to conclude that the library plaintiffs must prevail in their contention that CIPA requires them to violate the First Amendment rights of their patrons, and accordingly is facially invalid, even under the standard urged on us by the government, which would permit us to facially invalidate CIPA only if it is impossible for a single public library to comply with CIPA's conditions without violating the First Amendment. In view of the limitations inherent in the filtering technology mandated by CIPA, any public library that adheres to CIPA's conditions will necessarily restrict patrons' access to a substantial amount of protected speech, in violation of the First Amendment. Given this conclusion, we need not reach plaintiffs' arguments that CIPA effects a prior restraint on speech and is unconstitutionally vague. Nor do we decide their cognate unconstitutional conditions theory, though for reasons explained infra at note 36, we discuss the issues raised by that claim at some length. For these reasons, we will enter an Order declaring Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection Act, codified at 20 U.S.C. Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6), respectively, to be facially invalid under the First Amendment and permanently enjoining the defendants from enforcing those provisions.II. Findings of Fact 1. Statutory Framework 1. Nature and Operation of the E-rate and LSTA Programs In the Telecommunications Act of 1996 ("1996 Act"), Congress directed the Federal Communications Commission ("FCC") to take the steps necessary to establish a system of support mechanisms to ensure the delivery of affordable telecommunications service to all Americans. This system, referred to as "universal service," is codified in section 254 of the Communications Act of 1934, as amended by the 1996 Act. See 47 U.S.C. Sec. 254. Congress specified several groups as beneficiaries of the universal service support mechanism, including consumers in high-cost areas, low-income consumers, schools and libraries, and rural health care providers. See 47 U.S.C. Sec. 254(h)(1). The extension of universal service to schools and libraries in section 254(h) is commonly referred to as the Schools and Libraries Program, or "E-rate" Program. Under the E-rate Program, "[a]ll telecommunications carriers serving a geographic area shall, upon a bona fide request for any of its services that are within the definition of universal service . . ., provide such services to elementary schools, secondary schools, and libraries for educational purposes at rates less than the amounts charged for similar services to other parties." 47 U.S.C. Sec. 254(h)(1)(B). Under FCC regulations, providers of "interstate telecommunications" (with certain exceptions, see 47 C.F.R. Sec. 54.706(d)), must contribute a portion of their revenue for disbursement among eligible carriers that are providing services to those groups or areas specified by Congress in section 254. To be eligible for the discounts, a library must: (1) be eligible for assistance from a State library administrative agency under the Library Services and Technology Act, see infra; (2) be funded as an independent entity, completely separate from any schools; and (3) not be operating as a for-profit business. See 47 C.F.R. Sec. 54.501(c). Discounts on services for eligible libraries are set as a percentage of the pre-discount price, and range from 20% to 90%, depending on a library's level of economic disadvantage and its location in an urban or rural area. See 47 C.F.R. Sec. 54.505. Currently, a library's level of economic disadvantage is based on the percentage of students eligible for the national school lunch program in the school district in which the library is located. The Library Services and Technology Act ("LSTA"), Subchapter II of the Museum and Library Services Act, 20 U.S.C. Sec. 9101 et seq., was enacted by Congress in 1996 as part of the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208. The LSTA establishes three grant programs to achieve the goal of improving library services across the nation. Under the Grants to States Program, LSTA grant funds are awarded, inter alia, in order to assist libraries in accessing information through electronic networks and pay for the costs of acquiring or sharing computer systems and telecommunications technologies. See 20 U.S.C. Sec. 9141(a). Through the Grants to States program, LSTA funds have been used to acquire and pay costs associated with Internet-accessible computers located in libraries. 2. CIPA The Children's Internet Protection Act ("CIPA") was enacted as part of the Consolidated Appropriations Act of 2001, which consolidated and enacted several appropriations bills, including the Miscellaneous Appropriations Act, of which CIPA was a part. See Pub. L. No. 106-554. CIPA addresses three distinct types of federal funding programs: (1) aid to elementary and secondary schools pursuant to Title III of the Elementary and Secondary Education Act of 1965, see CIPA Sec. 1711 (amending Title 20 to add Sec. 3601); (2) LSTA grants to states for support of libraries, see CIPA Sec. 1712 (amending the Museum and Library Services Act, 20 U.S.C. Sec. 9134); and (3) discounts under the E-rate program, see CIPA Sec. 1721(a) & (b) (both amending the Communications Act of 1934, 47 U.S.C. Sec. 254(h)). Only sections 1712 and 1721(b) of CIPA, which apply to libraries, are at issue in this case. As explained in more detail below, CIPA requires libraries that participate in the LSTA and E-rate programs to certify that they are using software filters on their computers to protect against visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. CIPA permits library officials to disable the filters for patrons for bona fide research or other lawful purposes, but disabling is not permitted for minor patrons if the library receives E-rate discounts. 1. CIPA's Amendments to the E-rate Program Section 1721(b) of CIPA imposes conditions on a library's participation in the E-rate program. A library "having one or more computers with Internet access may not receive services at discount rates," CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(A)(i)), unless the library certifies that it is "enforcing a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are – (I) obscene; (II) child pornography; or (III) harmful to minors," and that it is "enforcing the operation of such technology protection measure during any use of such computers by minors." CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B)). CIPA defines a "technology protection measure" as "a specific technology that blocks or filters access to visual depictions that are obscene, . . . child pornography, . . . or harmful to minors." CIPA Sec. 1703(b)(1) (codified at 47 U.S.C. Sec. 254(h)(7)(I)). To receive E-rate discounts, a library must also certify that filtering software is in operation during adult use of the Internet. More specifically, with respect to adults, a library must certify that it is "enforcing a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are – (I) obscene; or (II) child pornography," and that it is "enforcing the operation of such technology protection measure during any use of such computers." CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(C)). Interpreting the statutory terms "any use," the FCC has concluded that "CIPA makes no distinction between computers used only by staff and those accessible to the public." In re Federal-State Joint Board on Universal Service: Children's Internet Protection Act, CC Docket No. 96-45, Report and Order, FCC 01-120, 30 (Apr. 5, 2001). With respect to libraries receiving E-rate discounts, CIPA further specifies that "[a]n administrator, supervisor, or other person authorized by the certifying authority . . . may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose." CIPA Sec.1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)). 2. CIPA's Amendments to the LSTA Program Section 1712 of CIPA amends the Museum and Library Services Act (20 U.S.C. Sec. 9134(f)) to provide that no funds made available under the Act "may be used to purchase computers used to access the Internet, or to pay for direct costs associated with accessing the Internet," unless such library "has in place" and is enforcing "a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions" that are "obscene" or "child pornography," and, when the computers are in use by minors, also protects against access to visual depictions that are "harmful to minors." CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)). Section 1712 contains definitions of "technology protection measure," "obscene," "child pornography," and "harmful to minors," that are substantially similar to those found in the provisions governing the E-rate program. CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(7)); see also supra note 2. As under the E-rate program, "an administrator, supervisor or other authority may disable a technology protection measure . . . to enable access for bona fide research or other lawful purposes." CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(3)). Whereas CIPA's amendments to the E-rate program permit disabling for bona fide research or other lawful purposes only during adult use, the LSTA provision permits disabling for both adults and minors. 2. Identity of the Plaintiffs 1. Library and Library Association Plaintiffs Plaintiffs American Library Association, Alaska Library Association, California Library Association, Connecticut Library Association, Freedom to Read Foundation, Maine Library Association, New England Library Association, New York Library Association, and Wisconsin Library Association are non-profit organizations whose members include public libraries that receive either E-rate discounts or LSTA funds for the provision of Internet access. Because it is a prerequisite to associational standing, we note that the interests that these organizations seek to protect in this litigation are central to their raison d'être. Plaintiffs Fort Vancouver Regional Library District, in southwest Washington state; Multnomah County Public Library, in Multnomah County, Oregon; Norfolk Public Library System, in Norfolk, Virginia; Santa Cruz Public Library Joint Powers Authority, in Santa Cruz, California; South Central Library System ("SCLS"), centered in Madison, Wisconsin; and the Westchester Library System, in Westchester County, New York, are public library systems with branch offices in their respective localities that provide Internet access to their patrons. The Fort Vancouver Regional Library District, for over three years from 1999-2001, received $135,000 in LSTA grants and $19,500 in E-rate discounts for Internet access. The Multnomah County Public Library received $70,000 in E-rate discounts for Internet access this year, and has applied for $100,000 in E-rate discounts for the upcoming year. The Norfolk Public Library System received $90,000 in E-rate discounts for Internet access this year, and has received a $200,000 LSTA grant to put computer labs in eight of its libraries. The Santa Cruz Public Library Joint Powers Authority received $20,560 in E-rate discounts for Internet access in 2001-02. The SCLS received between $3,000 and $5,000 this year in E-rate discounts for Internet access. The Fort Vancouver Regional Library District Board is a public board whose members are appointed by elected county commissioners. The Multnomah County Library is a county department, whose board is appointed by the county chair and confirmed by the other commissioners. The SCLS is an aggregation of 51 independently governed statutory member public libraries, whose relationship to SCLS is defined by state law. The governing body of the SCLS is the Library Board of Trustees, which consists of 20 members nominated by county executives and ratified by county boards of supervisors. 2. Patron and Patron Association Plaintiffs Plaintiffs Association of Community Organizations for Reform Now, Friends of the Philadelphia City Institute Library, and the Pennsylvania Alliance for Democracy are nonprofit organizations whose members include individuals who access the Internet at public libraries that receive E-rate discounts or LSTA funds for the provision of public Internet access. We note for the purpose of associational standing that the interests that these organizations seek to protect in this litigation are germane to their purposes. Plaintiffs Emmalyn Rood, Mark Brown, Elizabeth Hrenda, C. Donald Weinberg, Sherron Dixon, by her father and next friend Gordon Dixon, James Geringer, Marnique Tynesha Overby, by her next friend Carolyn C. Williams, William J. Rosenbaum, Carolyn C. Williams, and Quiana Williams, by her mother and next friend Sharon Bernard, are adults and minors who use the Internet at public libraries that, to the best of their knowledge, do not filter patrons' access to the Internet. Several of these plaintiffs do not have Internet access from home. Emmalyn Rood is a sixteen-year-old who uses the Multnomah County Public Library. When she was 13, she used the Internet at the Multnomah County Public Library to research issues relating to her sexual identity. Ms. Rood did not use her home or school computer for this research, in part because she wished her searching to be private. Although the library offered patrons the option of using filtering software, Ms. Rood did not use that option because she had had previous experience with such programs blocking information that was valuable to her, including information relating to gay and lesbian issues. Plaintiff Mark Brown used the Internet at the Philadelphia Free Library to research breast cancer and reconstructive surgery for his mother who had breast surgery. Mr. Brown's research at the library provided him and his mother with essential information about his mother's medical condition and potential treatments. 3. Web Publisher Plaintiffs Plaintiff Afraid to Ask, Inc., based in Saunderstown, Rhode Island, publishes a health education Web site, www.AfraidtoAsk.com. Dr. Jonathan Bertman, the president and medical director of Afraid to Ask, is a family practice physician in rural Rhode Island and a clinical assistant professor of family medicine at Brown University. AfraidtoAsk.com's mission is to provide detailed information on sensitive health issues, often of a sexual nature, such as sexually transmitted diseases, male and female genitalia, and birth control, sought by people of all ages who would prefer to learn about sensitive health issues anonymously, i.e., they are "afraid to ask." As part of its educational mission, AfraidtoAsk.com often uses graphic images of sexual anatomy to convey information. Its primary audience is teens and young adults. Based on survey data collected on the site, half of the people visiting the site are under 24 years old and a quarter are under 18. AfraidtoAsk.com is blocked by several leading blocking products as containing sexually explicit content. Plaintiff Alan Guttmacher Institute has a Web site that contains information about its activities and objectives, including its mission to protect the reproductive choices of women and men. Plaintiff Planned Parenthood Federation of America, Inc. ("Planned Parenthood") is a national voluntary organization in the field of reproductive health care. Planned Parenthood owns and operates several Web sites that provide a range of information about reproductive health, from contraception to prevention of sexually transmitted diseases, to finding an abortion provider, and to information about the drug Mifepristone. Plaintiff Safersex.org is a Web site that offers free educational information on how to practice safer sex. Plaintiff Ethan Interactive, Inc., d/b/a Out In America, is an online content provider that owns and operates 64 free Web sites for gay, lesbian, bisexual and transgendered persons worldwide. Plaintiff PlanetOut Corporation is an online content provider for gay, lesbian, bisexual and transgendered persons. Plaintiff the Naturist Action Committee ("NAC") is the nonprofit political arm of the Naturist Society, a private organization that promotes a way of life characterized by the practice of nudity. The NAC Web site provides information about Naturist Society activities and about state and local laws that may affect the rights of Naturists or their ability to practice Naturism, and includes nude photographs of its members. Plaintiff Wayne L. Parker was the Libertarian candidate in the 2000 U.S. Congressional election for the Fifth District of Mississippi (and is running again in 2002). He publishes a Web site that communicates information about his campaign and that provides information about his political views and the Libertarian Party to the public. Plaintiff Jeffrey Pollock was the Republican candidate in the 2000 U.S. Congressional election for the Third District of Oregon. He operates a Web site that is now promoting his candidacy for Congress in 2002. 3. The Internet 1. Background As we noted at the outset, the Internet is a vast, interactive medium consisting of a decentralized network of computers around the world. The Internet presents low entry barriers to anyone who wishes to provide or distribute information. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides an opportunity for those with access to it to communicate with a worldwide audience at little cost. At least 400 million people use the Internet worldwide, and approximately 143 million Americans were using the Internet as of September 2001. Nat'l Telecomm. & Info. Admin., A Nation Online: How Americans Are Expanding Their Use of the Internet (February 2002), available at http://www.ntia.doc.gov/ntiahome/dn/. The World Wide Web is a part of the Internet that consists of a network of computers, called "Web servers," that host "pages" of content accessible via the Hypertext Transfer Protocol or "HTTP." Anyone with a computer connected to the Internet can search for and retrieve information stored on Web servers located around the world. Computer users typically access the Web by running a program called a "browser" on their computers. The browser displays, as individual pages on the computer screen, the various types of content found on the Web and lets the user follow the connections built into Web pages – called "hypertext links," "hyperlinks," or "links" – to additional content. Two popular browsers are Microsoft Internet Explorer and Netscape Navigator. A "Web page" is one or more files a browser graphically assembles to make a viewable whole when a user requests content over the Internet. A Web page may contain a variety of different elements, including text, images, buttons, form fields that the user can fill in, and links to other Web pages. A "Web site" is a term that can be used in several different ways. It may refer to all of the pages and resources available on a particular Web server. It may also refer to all the pages and resources associated with a particular organization, company or person, even if these are located on different servers, or in a subdirectory on a single server shared with other, unrelated sites. Typically, a Web site has as an intended point of entry, a "home page," which includes links to other pages on the same Web site or to pages on other sites. Online discussion groups and chat rooms relating to a variety of subjects are available through many Web sites. Users may find content on the Web using engines that search for requested keywords. In response to a keyword request, a search engine will display a list of Web sites that may contain relevant content and provide links to those sites. Search engines and directories often return a limited number of sites in their search results (e.g., the Google search engine will return only 2,000 sites in response to a search, even if it has found, for example, 530,000 sites in its index that meet the search criteria). A user may also access content on the Web by typing a URL (Uniform Resource Locator) into the address line of the browser. A URL is an address that points to some resource located on a Web server that is accessible over the Internet. This resource may be a Web site, a Web page, an image, a sound or video file, or other resource. A URL can be either a numeric Internet Protocol or "IP" address, or an alphanumeric "domain name" address. Every Web server connected to the Internet is assigned an IP address. A typical IP address looks like "13.1.64.14." Typing the URL "http://13.1.64.14/" into a browser will bring the user to the Web server that corresponds to that address. For convenience, most Web servers have alphanumeric domain name addresses in addition to IP addresses. For example, typing in "http://www.paed.uscourts.gov" will bring the user to the same Web server as typing in "http://204.170.64.143." Every time a user attempts to access material located on a Web server by entering a domain name address into a Web browser, a request is made to a Domain Name Server, which is a directory of domain names and IP addresses, to "resolve," or translate, the domain name address into an IP address. That IP address is then used to locate the Web server from which content is being requested. A Web site may be accessed by using either its domain name address or its IP address. A domain name address typically consists of several parts. For example, the alphanumeric URL http://www.paed.uscourts.gov/documents/opinions can be broken down into three parts. The first part is the transfer protocol the computer will use in accessing the content (e.g., "http" for Hypertext Transfer Protocol); next is the name of the host server on which the information is stored (e.g., www.paed.uscourts.gov); and then the name of the particular file or directory on that server (e.g., /documents/opinions). A single Web page may be associated with more than one URL. For example, the URLs http://www.newyorktimes.com and http://www.nytimes.com will both take the user to the New York Times home page. The topmost directory in a Web site is often referred to as that Web site's root directory or root URL. For example, in http://www.paed.uscourts.gov/documents, the root URL is http://www.paed.uscourts.gov. There may be hundreds or thousands of pages under a single root URL, or there may be one or only a few. There are a number of Web hosting companies that maintain Web sites for other businesses and individuals, which can lead to vast amounts of diverse content being located at the same IP address. Hosting services are offered either for a fee, or in some cases, for free, allowing any individual with Internet access to create a Web site. Some hosting services are provided through the process of "IP-based hosting," where each domain name is assigned a unique IP number. For example, www.baseball.com might map to the IP address "10.3.5.9" and www.XXX.com might map to the IP address "10.0.42.5." Other hosting services are provided through the process of "name-based hosting," where multiple domain name addresses are mapped to a single IP address. If the hosting company were using this method, both www.baseball.com and www.XXX.com could map to a single IP address, e.g., "10.3.5.9." As a result of the "name-based hosting" process, up to tens of thousands of pages with heterogeneous content may share a single IP address. 2. The Indexable Web, the "Deep Web"; Their Size and Rates of Growth and Change The universe of content on the Web that could be indexed, in theory, by standard search engines is known as the "publicly indexable Web." The publicly indexable Web is limited to those pages that are accessible by following a link from another Web page that is recognized by a search engine. This limitation exists because online indexing techniques used by popular search engines and directories such as Yahoo, Lycos and AltaVista, are based on "spidering" technology, which finds sites to index by following links from site to site in a continuous search for new content. If a Web page or site is not linked by others, then spidering will not discover that page or site. Furthermore, many larger Web sites contain instructions, through software, that prevent spiders from investigating that site, and therefore the contents of such sites also cannot be indexed using spidering technology. Because of the vast size and decentralized structure of the Web, no search engine or directory indexes all of the content on the publicly indexable Web. We credit current estimates that no more than 50% of the content currently on the publicly indexable Web has been indexed by all search engines and directories combined. No currently available method or combination of methods for collecting URLs can collect the addresses of all URLs on the Web. The portion of the Web that is not theoretically indexable through the use of "spidering" technology, because other Web pages do not link to it, is called the "Deep Web." Such sites or pages can still be made publicly accessible without being made publicly indexable by, for example, using individual or mass emailings (also known as "spam") to distribute the URL to potential readers or customers, or by using types of Web links that cannot be found by spiders but can be seen and used by readers. "Spamming" is a common method of distributing to potential customers links to sexually explicit content that is not indexable. Because the Web is decentralized, it is impossible to say exactly how large it is. A 2000 study estimated a total of 7.1 million unique Web sites, which at the Web's historical rate of growth, would have increased to 11 million unique sites as of September 2001. Estimates of the total number of Web pages vary, but a figure of 2 billion is a reasonable estimate of the number of Web pages that can be reached, in theory, by standard search engines. We need not make a specific finding as to a figure, for by any measure the Web is extremely vast, and it is constantly growing. The indexable Web is growing at a rate of approximately 1.5 million pages per day. The size of the un-indexable Web, or the "Deep Web," while impossible to determine precisely, is estimated to be two to ten times that of the publicly indexable Web. In addition to growing rapidly, Web pages and sites are constantly being removed, or changing their content. Web sites or pages can change content without changing their domain name addresses or IP addresses. Individual Web pages have an average life span of approximately 90 days. 3. The Amount of Sexually Explicit Material on the Web There is a vast amount of sexually explicit material available via the Internet and the Web. Sexually explicit material on the Internet is easy to access using any public search engine, such as, for example, Google or AltaVista. Although much of the sexually explicit material available on the Web is posted on commercial sites that require viewers to pay in order to gain access to the site, a large number of sexually explicit sites may be accessed for free and without providing any registration information. Most importantly, some Web sites that contain sexually explicit content have innocuous domain names and therefore can be reached accidentally. A commonly cited example is http://www.whitehouse.com. Other innocent-sounding URLs that retrieve graphic, sexually explicit depictions include http://www.boys.com, http://www.girls.com, http://www.coffeebeansupply.com, and http://www.BookstoreUSA.com. Moreover, commercial Web sites that contain sexually explicit material often use a technique of attaching pop-up windows to their sites, which open new windows advertising other sexually explicit sites without any prompting by the user. This technique makes it difficult for a user quickly to exit all of the pages containing sexually explicit material, whether he or she initially accessed such material intentionally or not. The percentage of Web pages on the indexed Web containing sexually explicit content is relatively small. Recent estimates indicate that no more than 1-2% of the content on the Web is pornographic or sexually explicit. However, the absolute number of Web sites offering free sexually explicit material is extremely large, approximately 100,000 sites. 4. American Public Libraries The more than 9,000 public libraries in the United States are typically funded (at least in large part) by state or local governments. They are frequently overseen by a board of directors that is either elected or is appointed by an elected official or a body of elected officials. We heard testimony from librarians and library board members working in eight public library systems in different communities across the country, some of whom are also plaintiffs in this case. They hailed from the following library systems: Fort Vancouver, Washington; Fulton County, Indiana; Greenville, South Carolina; a regional consortium of libraries centered in Madison, Wisconsin; Multnomah County, Oregon; Norfolk, Virginia; Tacoma, Washington; and Westerville, Ohio. The parties also took depositions from several other librarians and library board members who did not testify during the trial, and submitted a number of other documents regarding individual libraries' policies. 1. The Mission of Public Libraries, and Their Reference and Collection Development Practices American public libraries operate in a wide variety of communities, and it is not surprising that they do not all view their mission identically. Nor are their practices uniform. Nevertheless, they generally share a common mission – to provide patrons with a wide range of information and ideas. Public libraries across the country have endorsed the American Library Association's ("ALA") "Library Bill of Rights" and/or "Freedom to Read Statement," including every library testifying on behalf of the defendants in this case. The "Library Bill of Rights," first adopted by the ALA in 1948, provides, among other things, that "[b]ooks and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves." It also states that libraries "should provide materials and information presenting all points of view on current and historical issues" and that library materials "should not be proscribed or removed because of partisan or doctrinal disapproval." The ALA's "Freedom to Read" statement, adopted in 1953 and most recently updated in July 2000, states, among other things, that "[i]t is in the public interest for publishers and librarians to make available the widest diversity of views and expressions, including those that are unorthodox or unpopular with the majority." It also states that "[i]t is the responsibility of . . . librarians . . . to contest encroachments upon th[e] freedom [to read] by individuals or groups seeking to impose their own standards or tastes upon the community at large." Public libraries provide information not only for educational purposes, but also for recreational, professional, and other purposes. For example, Ginnie Cooper, Director of the Multnomah County Library, testified that some of the library's most popular items include video tapes of the British Broadcasting Corporation's "Fawlty Towers" series, and also print and "books on tape" versions of science fiction, romance, and mystery novels. Many public libraries include sexually explicit materials in their print collection, such as The Joy of Sex and The Joy of Gay Sex. Very few public libraries, however, collect more graphic sexually explicit materials, such as XXX-rated videos, or Hustler magazine. The mission of public librarians is to provide their patrons with a wide array of information, and they surely do so. Reference librarians across America answer more than 7 million questions weekly. If a patron has a specialized need for information not available in the public library, the professional librarian will use a reference interview to find out what information is needed to help the user, including the purpose for which an item will be used. Reference librarians are trained to assist patrons without judging the patron's purpose in seeking information, or the content of the information that the patron is seeking. Many public libraries routinely provide patrons with access to materials not in their collections through the use of bibliographic access tools and interlibrary loan programs. Public libraries typically will assist patrons in obtaining access to all materials except those that are illegal, even if they do not collect those materials in their physical collection. In order to provide this access, a librarian may attempt to find material not included in the library's own collection in other libraries in the system, through interlibrary loan, or through a referral, perhaps to a government agency or a commercial bookstore. Interlibrary loan is expensive, however, and is therefore used infrequently. Public librarians also apply professional standards to their collection development practices. Public libraries generally make material selection decisions and frame policies governing collection development at the local level. Collection development is a key subject in the curricula of Masters of Library Science programs and is defined by certain practices. In general, professional standards guide public librarians to build, develop and create collections that have certain characteristics, such as balance in its coverage and requisite and appropriate quality. To this end, the goal of library collections is not universal coverage, but rather to find those materials that would be of the greatest direct benefit or interest to the community. In making selection decisions, librarians consider criteria including the content of the material, its accuracy, the title's niche in relation to the rest of the collection, the authority of the author, the publisher, the work's presentation, and how it compares with other material available in the same genre or on the same subject. In pursuing the goal of achieving a balanced collection that serves the needs and interests of their patrons, librarians generally have a fair amount of autonomy, but may also be guided by a library's collection development policy. These collection development policies are often drawn up in conjunction with the libraries' governing boards and with representatives from the community, and may be the result of public hearings, discussions and other input. Although many librarians use selection aids, such as review journals and bibliographies, as a guide to the quality of potential acquisitions, they do not generally delegate their selection decisions to parties outside of the public library or its governing body. One limited exception is the use of third- party vendors or approval plans to acquire print and video resources. In such arrangements, third-party vendors provide materials based on the library's description of its collection development criteria. The vendor sends materials to the library, and the library retains the materials that meet its collection development needs and returns the materials that do not. Even in this arrangement, however, the librarians still retain ultimate control over their collection development and review all of the materials that enter their library's collection. 2. The Internet in Public Libraries The vast majority of public libraries offer Internet access to their patrons. According to a recent report by the U.S. National Commission on Libraries and Information Science, approximately 95% of all public libraries provide public access to the Internet. John C. Bertot & Charles R. McClure, Public Libraries and the Internet 2000: Summary Findings and Data Tables, Report to National Commission on Libraries and Information Science, at 3. The Internet vastly expands the amount of information available to patrons of public libraries. The widespread availability of Internet access in public libraries is due, in part, to the availability of public funding, including state and local funding and the federal funding programs regulated by CIPA. Many libraries face a large amount of patron demand for their Internet services. At some libraries, patron demand for Internet access during a given day exceeds the supply of computer terminals with access to the Internet. These libraries use sign- in and time limit procedures and/or establish rules regarding the allowable uses of the terminals, in an effort to ration their computer resources. For example, some of the libraries whose librarians testified at trial prohibit the use of email and chat functions on their public Internet terminals. Public libraries play an important role in providing Internet access to citizens who would not otherwise possess it. Of the 143 million Americans using the Internet, approximately 10%, or 14.3 million people, access the Internet at a public library. Internet access at public libraries is more often used by those with lower incomes than those with higher incomes. About 20.3% of Internet users with household family income of less than $15,000 per year use public libraries for Internet access. Approximately 70% of libraries serving communities with poverty levels in excess of 40% receive E-rate discounts. 1. Internet Use Policies in Public Libraries Approximately 95% of libraries with public Internet access have some form of "acceptable use" policy or "Internet use" policy governing patrons' use of the Internet. These policies set forth the conditions under which patrons are permitted to access and use the library's Internet resources. These policies vary widely. Some of the less restrictive policies, like those held by Multnomah County Library and Fort Vancouver Regional Library, do not prohibit adult patrons from viewing sexually explicit materials on the Web, as long as they do so at terminals with privacy screens or recessed monitors, which are designed to prevent other patrons from seeing the material that they are viewing, and as long as it does not violate state or federal law to do so. Other libraries prohibit their patrons from viewing all "sexually explicit" or "sexually graphic" materials. Some libraries prohibit the viewing of materials that are not necessarily sexual, such as Web pages that are "harmful to minors," "offensive to the public," "objectionable," "racially offensive," or simply "inappropriate." Other libraries restrict access to Web sites that the library just does not want to provide, even though the sites are not necessarily offensive. For example, the Fulton County Public Library restricts access to the Web sites of dating services. Similarly, the Tacoma Public Library's policy does not allow patrons to use the library's Internet terminals for personal email, for online chat, or for playing games. In some cases, libraries instituted Internet use policies after having experienced specific problems, whereas in other cases, libraries developed detailed Internet use policies and regulatory measures (such as using filtering software) before ever offering public Internet access. Essentially four interests motivate libraries to institute Internet use policies and to apply the methods described above to regulate their patrons' use of the Internet. First, libraries have sought to protect patrons (especially children) and staff members from accidentally viewing sexually explicit images, or other Web pages containing content deemed harmful, that other patrons are viewing on the Internet. For example, some librarians who testified described situations in which patrons left sexually explicit images minimized on an Internet terminal so that the next patron would see them when they began using it, or in which patrons printed sexually explicit images from a Web site and left them at a public printer. Second, libraries have attempted to protect patrons from unwittingly or accidentally accessing Web pages that they do not wish to see while they are using the Internet. For example, the Memphis-Shelby County (Tennessee) Public Library's Internet use policy states that the library "employs filtering technology to reduce the possibility that customers may encounter objectionable content in the form of depictions of full nudity and sexual acts." Third, libraries have sought to keep patrons (again, especially children) from intentionally accessing sexually explicit materials or other materials that the library deems inappropriate. For example, a study of the Tacoma Public Library's Internet use logs for the year 2000 showed that users between the ages of 11 and 15 accounted for 41% of the filter blocks that occurred on library computers. The study, which we credit, concluded that children and young teens were actively seeking to access sexually explicit images in the library. The Greenville Library's Board of Directors was particularly concerned that patrons were accessing obscene materials in the public library in violation of South Carolina's obscenity statute. Finally, some libraries have regulated patrons' Internet use to attempt to control patrons' inappropriate (or illegal) behavior that is thought to stem from viewing Web pages that contain sexually explicit materials or content that is otherwise deemed unacceptable. We recognize the concerns that led several of the public libraries whose librarians and board members testified in this case to start using Internet filtering software. The testimony of the Chairman of the Board of the Greenville Public Library is illustrative. In December 1999, there was considerable local press coverage in Greenville concerning adult patrons who routinely used the library to surf the Web for pornography. In response to public outcry stemming from the newspaper report, the Board of Trustees held a special board meeting to obtain information and to communicate with the public concerning the library's provision of Internet access. At this meeting, the Board learned for the first time of complaints about children being exposed to pornography that was displayed on the library's Internet terminals. In late January to early February of 2000, the library installed privacy screens and recessed terminals in an effort to restrict the display of sexually explicit Web sites at the library. In February, 2000, the Board informed the library staff that they were expected to be familiar with the South Carolina obscenity statute and to enforce the policy prohibition on access to obscene materials, child pornography, or other materials prohibited under applicable local, state, and federal laws. Staff were told that they were to enforce the policy by means of a "tap on the shoulder." Prior to adopting its current Internet Use Policy, the Board adopted an "Addendum to Current Internet Use Policy." Under the policy, the Board temporarily instituted a two-hour time limit per day for Internet use; reduced substantially the number of computers with Internet access in the library; reconfigured the location of the computers so that librarians had visual contact with all Internet-accessible terminals; and removed the privacy screens from terminals with Internet access. Even after the Board implemented the privacy screens and later the "tap-on-the-shoulder" policy combined with placing terminals in view of librarians, the library experienced a high turnover rate among reference librarians who worked in view of Internet terminals. Finding that the policies that it had tried did not prevent the viewing of sexually explicit materials in the library, the Board at one point considered discontinuing Internet access in the library. The Board finally concluded that the methods that it had used to regulate Internet use were not sufficient to stem the behavioral problems that it thought were linked to the availability of pornographic materials in the library. As a result, it implemented a mandatory filtering policy. We note, however, that none of the libraries proffered by the defendants presented any systematic records or quantitative comparison of the amount of criminal or otherwise inappropriate behavior that occurred in their libraries before they began using Internet filtering software compared to the amount that happened after they installed the software. The plaintiffs' witnesses also testified that because public libraries are public places, incidents involving inappropriate behavior in libraries (sexual and otherwise) existed long before libraries provided access to the Internet. 2. Methods for Regulating Internet Use The methods that public libraries use to regulate Internet use vary greatly. They can be organized into four categories: (1) channeling patrons' Internet use; (2) separating patrons so that they will not see what other patrons are viewing; (3) placing Internet terminals in public view and having librarians observe patrons to make sure that they are complying with the library's Internet use policy; and (4) using Internet filtering software. The first category – channeling patrons' Internet use – frequently includes offering training to patrons on how to use the Internet, including how to access the information that they want and to avoid the materials that they do not want. Another technique that some public libraries use to direct their patrons to pages that the libraries have determined to be accurate and valuable is to establish links to "recommended Web sites" from the public library's home page (i.e., the page that appears when patrons begin a session at one of the library's public Internet terminals). Librarians select these recommended Web sites by using criteria similar to those employed in traditional collection development. However, unless the library determines otherwise, selection of these specific sites does not preclude patrons from attempting to access other Internet Web sites. Libraries may extend the "recommended Web sites" method further by limiting patrons' access to only those Web sites that are reviewed and selected by the library's staff. For example, in 1996, the Westerville, Ohio Library offered Internet access to children through a service called the "Library Channel." This service was intended to be a means by which the library could organize the Internet in some fashion for presentation to patrons. Through the Library Channel, the computers in the children's section of the library were restricted to 2,000 to 3,000 sites selected by librarians. After three years, Westerville stopped using the Library Channel system because it overly constrained the children's ability to access materials on the Internet, and because the library experienced several technical problems with the system. Public libraries also use several different techniques to separate patrons during Internet sessions so that they will not see what other patrons are viewing. The simplest way to achieve this result is to position the library's public Internet terminals so that they are located away from traffic patterns in the library (and from other terminals), for example, by placing them so that they face a wall. This method is obviously constrained by libraries' space limitations and physical layout. Some libraries have also installed privacy screens on their public Internet terminals. These screens make a monitor appear blank unless the viewer is looking at it head-on. Although the Multnomah and Fort Vancouver Libraries submitted records showing that they have received few complaints regarding patrons' unwilling exposure to materials on the Internet, privacy screens do not always prevent library patrons or employees from inadvertently seeing the materials that another patron is viewing when passing directly behind a terminal. They also have the drawback of making it difficult for patrons to work together at a single terminal, or for librarians to assist patrons at terminals, because it is difficult for two people to stand side by side and view a screen at the same time. Some library patrons also find privacy screens to be a hindrance and have attempted to remove them in order to improve the brightness of the screen or to make the view better. Another method that libraries use to prevent patrons from seeing what other patrons are viewing on their terminals is the installation of "recessed monitors." Recessed monitors are computer screens that sit below the level of a desk top and are viewed from above. Although recessed monitors, especially when combined with privacy screens, eliminate almost all of the possibility of a patron accidentally viewing the contents on another patron's screen, they suffer from the same drawbacks as privacy screens, that is, they make it difficult for patrons to work together or with a librarian at a single terminal. Some librarians also testified that recessed monitors are costly, but did not indicate how expensive they are compared to privacy screens or filtering software. A related technique that some public libraries use is to create a separate children's Internet viewing area, where no adults except those accompanying children in their care may use the Internet terminals. This serves the objective of keeping children from inadvertently viewing materials appropriate only for adults that adults may be viewing on nearby terminals. A third set of techniques that public libraries have used to enforce their Internet use policies takes the opposite tack from the privacy screens/recessed monitors approach by placing all of the library's public Internet terminals in prominent and visible locations, such as near the library's reference desk. This approach allows librarians to enforce their library's Internet use policy by observing what patrons are viewing and employing the tap-on-the-shoulder policy. Under this approach, when patrons are viewing materials that are inconsistent with the library's policies, a library staff member approaches them and asks them to view something else, or may ask them to end their Internet session. A patron who does not comply with these requests, or who repeatedly views materials not permitted under the library's Internet use policy, may have his or her Internet or library privileges suspended or revoked. But many librarians are uncomfortable with approaching patrons who are viewing sexually explicit images, finding confrontation unpleasant. Hence some libraries are reluctant to apply the tap-on-the- shoulder policy. The fourth category of methods that public libraries employ to enforce their Internet use policies, and the one that gives rise to this case, is the use of Internet filtering software. According to the June 2000 Survey of Internet Access Management in Public Libraries, approximately 7% of libraries with public Internet access had mandated the use of blocking programs by adult patrons. Some public libraries provide patrons with the option of using a blocking program, allowing patrons to decide whether to engage the program when they or their children access the Internet. Other public libraries require their child patrons to use filtering software, but not their adult patrons. Filtering software vendors sell their products on a subscription basis. The cost of a subscription varies with the number of computers on which the filtering software will be used. In 2001, the cost of the Cyber Patrol filtering software was $1,950 for 100 terminal licenses. The Greenville County Library System pays $2,500 per year for the N2H2 filtering software, and a subscription to the Websense filter costs Westerville Public Library approximately $1,200 per year. No evidence was presented on the cost of privacy screens, recessed monitors, and the tap-on-the-shoulder policy, relative to the costs of filtering software. Nor did any of the libraries proffered by the government present any quantitative evidence on the relative effectiveness of use of privacy screens to prevent patrons from being unwillingly exposed to sexually explicit material, and the use of filters, discussed below. No evidence was presented, for example, comparing the number of patron complaints in those libraries that have tried both methods. The librarians who testified at trial whose libraries use Internet filtering software all provide methods by which their patrons may ask the library to unblock specific Web sites or pages. Of these, only the Tacoma Public Library allows patrons to request that a URL be unblocked without providing any identifying information; Tacoma allows patrons to request a URL by sending an email from the Internet terminal that the patron is using that does not contain a return email address for the user. David Biek, the head librarian at the Tacoma Library's main branch, testified at trial that the library keeps records that would enable it to know which patrons made unblocking requests, but does not use that information to connect users with their requests. Biek also testified that he periodically scans the library's Internet use logs to search for: (1) URLs that were erroneously blocked, so that he may unblock them; or (2) URLs that should have been blocked, but were not, in order to add them to a blocked category list. In the course of scanning the use logs, Biek has also found what looked like attempts to access child pornography. In two cases, he communicated his findings to law enforcement and turned over the logs in response to a subpoena. At all events, it takes time for librarians to make decisions about whether to honor patrons' requests to unblock Web pages. In the libraries proffered by the defendants, unblocking decisions sometimes take between 24 hours and a week. Moreover, none of these libraries allows unrestricted access to the Internet pending a determination of the validity of a Web site blocked by the blocking programs. A few of the defendants' proffered libraries represented that individual librarians would have the discretion to allow a patron to have full Internet access on a staff computer upon request, but none claimed that allowing such access was mandatory, and patron access is supervised in every instance. None of these libraries makes differential unblocking decisions based on the patrons' age. Unblocking decisions are usually made identically for adults and minors. Unblocking decisions even for adults are usually based on suitability of the Web site for minors. It is apparent that many patrons are reluctant or unwilling to ask librarians to unblock Web pages or sites that contain only materials that might be deemed personal or embarrassing, even if they are not sexually explicit or pornographic. We credit the testimony of Emmalyn Rood, discussed above, that she would have been unwilling as a young teen to ask a librarian to disable filtering software so that she could view materials concerning gay and lesbian issues. We also credit the testimony of Mark Brown, who stated that he would have been too embarrassed to ask a librarian to disable filtering software if it had impeded his ability to research treatments and cosmetic surgery options for his mother when she was diagnosed with breast cancer. The pattern of patron requests to unblock specific URLs in the various libraries involved in this case also confirms our finding that patrons are largely unwilling to make unblocking requests unless they are permitted to do so anonymously. For example, the Fulton County Library receives only about 6 unblocking requests each year, the Greenville Public Library has received only 28 unblocking requests since August 21, 2000, and the Westerville, Ohio Library has received fewer than 10 unblocking requests since 1999. In light of the fact that a substantial amount of overblocking occurs in these very libraries, see infra Subsection II.E.4, we find that the lack of unblocking requests in these libraries does not reflect the effectiveness of the filters, but rather reflects patrons' reluctance to ask librarians to unblock sites. 5. Internet Filtering Technology 1. What Is Filtering Software, Who Makes It, and What Does It Do? Commercially available products that can be configured to block or filter access to certain material on the Internet are among the "technology protection measures" that may be used to attempt to comply with CIPA. There are numerous filtering software products available commercially. Three network-based filtering products – SurfControl's Cyber Patrol, N2H2's Bess/i2100, and Secure Computing's SmartFilter – currently have the lion's share of the public library market. The parties in this case deposed representatives from these three companies. Websense, another network-based blocking product, is also currently used in the public library market, and was discussed at trial. Filtering software may be installed either on an individual computer or on a computer network. Network-based filtering software products are designed for use on a network of computers and funnel requests for Internet content through a centralized network device. Of the various commercially available blocking products, network-based products are the ones generally marketed to institutions, such as public libraries, that provide Internet access through multiple terminals. Filtering programs function in a fairly simple way. When an Internet user requests access to a certain Web site or page, either by entering a domain name or IP address into a Web browser, or by clicking on a link, the filtering software checks that domain name or IP address against a previously compiled "control list" that may contain up to hundreds of thousands of URLs. The three companies deposed in this case have control lists containing between 200,000 and 600,000 URLs. These lists determine which URLs will be blocked. Filtering software companies divide their control lists into multiple categories for which they have created unique definitions. SurfControl uses 40 such categories, N2H2 uses 35 categories (and seven "exception" categories), Websense uses 30 categories, and Secure Computing uses 30 categories. Filtering software customers choose which categories of URLs they wish to enable. A user "enables" a category in a filtering program by configuring the program to block all of the Web pages listed in that category. The following is a list of the categories offered by each of these four filtering programs. SurfControl's Cyber Patrol offers the following categories: Adult/Sexually Explicit; Advertisements; Arts & Entertainment; Chat; Computing & Internet; Criminal Skills; Drugs, Alcohol & Tobacco; Education; Finance & Investment; Food & Drink; Gambling; Games; Glamour & Intimate Apparel; Government & Politics; Hacking; Hate Speech; Health & Medicine; Hobbies & Recreation; Hosting Sites; Job Search & Career Development; Kids' Sites; Lifestyle & Culture; Motor Vehicles; News; Personals & Dating; Photo Searches; Real Estate; Reference; Religion; Remote Proxies; Sex Education; Search Engines; Shopping; Sports; Streaming Media; Travel; Usenet News; Violence; Weapons; and Web-based Email. N2H2 offers the following categories: Adults Only; Alcohol; Auction; Chat; Drugs; Electronic Commerce; Employment Search; Free Mail; Free Pages; Gambling; Games; Hate/Discrimination; Illegal; Jokes; Lingerie; Message/Bulletin Boards; Murder/Suicide; News; Nudity; Personal Information; Personals; Pornography; Profanity; Recreation/Entertainment; School Cheating Information; Search Engines; Search Terms; Sex; Sports; Stocks; Swimsuits; Tasteless/Gross; Tobacco; Violence; and Weapons. The "Nudity" category purports to block only "non-pornographic" images. The "Sex" category is intended to block only those depictions of sexual activity that are not intended to arouse. The "Tasteless/Gross" category includes contents such as "tasteless humor" and "graphic medical or accident scene photos." Additionally, N2H2 offers seven "exception categories." These exception categories include Education, Filtered Search Engine, For Kids, History, Medical, Moderated, and Text/Spoken Only. When an exception category is enabled, access to any Web site or page via a URL associated with both a category and an exception, for example, both "Sex" and "Education," will be allowed, even if the customer has enabled the product to otherwise block the category "Sex." As of November 15, 2001, of those Web sites categorized by N2H2 as "Sex," 3.6% were also categorized as "Education," 2.9% as "Medical," and 1.6% as "History." Websense offers the following categories: Abortion Advocacy; Advocacy Groups; Adult Material; Business & Economy; Drugs; Education; Entertainment; Gambling; Games; Government; Health; Illegal/Questionable; Information Technology; Internet Communication; Job Search; Militancy/Extremist; News & Media; Productivity Management; Bandwidth Management; Racism/Hate; Religion; Shopping; Society & Lifestyle; Special Events; Sports; Tasteless; Travel; Vehicles; Violence; and Weapons. The "Adult" category includes "full or partial nudity of individuals," as well as sites offering "light adult humor and literature" and "[s]exually explicit language." The "Sexuality/Pornography" category includes, inter alia, "hard-core adult humor and literature" and "[s]exually explicit language." The "Tasteless" category includes "hard-to-stomach sites, including offensive, worthless or useless sites, grotesque or lurid depictions of bodily harm." The "Hacking" category blocks "sites providing information on or promoting illegal or questionable access to or use of communications equipment and/or software." SmartFilter offers the following categories: Anonymizers/Translators; Art & Culture; Chat; Criminal Skills; Cults/Occult; Dating; Drugs; Entertainment; Extreme/Obscene/Violence; Gambling; Games; General News; Hate Speech; Humor; Investing; Job Search; Lifestyle; Mature; MP3 Sites; Nudity; On-line Sales; Personal Pages; Politics, Opinion & Religion; Portal Sites; Self-Help/Health; Sex; Sports; Travel; Usenet News; and Webmail. Most importantly, no category definition used by filtering software companies is identical to CIPA's definitions of visual depictions that are obscene, child pornography, or harmful to minors. And category definitions and categorization decisions are made without reference to local community standards. Moreover, there is no judicial involvement in the creation of filtering software companies' category definitions and no judicial determination is made before these companies categorize a Web page or site. Each filtering software company associates each URL in its control list with a "tag" or other identifier that indicates the company's evaluation of whether the content or features of the Web site or page accessed via that URL meets one or more of its category definitions. If a user attempts to access a Web site or page that is blocked by the filter, the user is immediately presented with a screen that indicates that a block has occurred as a result of the operation of the filtering software. These "denial screens" appear only at the point that a user attempts to access a site or page in an enabled category. All four of the filtering programs on which evidence was presented allow users to customize the category lists that exist on their own PCs or servers by adding or removing specific URLs. For example, if a public librarian charged with administering a library's Internet terminals comes across a Web site that he or she finds objectionable that is not blocked by the filtering program that his or her library is using, then the librarian may add that URL to a category list that exists only on the library's network, and it would thereafter be blocked under that category. Similarly, a customer may remove individual URLs from category lists. Importantly, however, no one but the filtering companies has access to the complete list of URLs in any category. The actual URLs or IP addresses of the Web sites or pages contained in filtering software vendors' category lists are considered to be proprietary information, and are unavailable for review by customers or the general public, including the proprietors of Web sites that are blocked by filtering software. Filtering software companies do not generally notify the proprietors of Web sites when they block their sites. The only way to discover which URLs are blocked and which are not blocked by any particular filtering company is by testing individual URLs with filtering software, or by entering URLs one by one into the "URL checker" that most filtering software companies provide on their Web sites. Filtering software companies will entertain requests for recategorization from proprietors of Web sites that discover their sites are blocked. Because new pages are constantly being added to the Web, filtering companies provide their customers with periodic updates of category lists. Once a particular Web page or site is categorized, however, filtering companies generally do not re-review the contents of that page or site unless they receive a request to do so, even though the content on individual Web pages and sites changes frequently. 2. The Methods that Filtering Companies Use to Compile Category Lists While the way in which filtering programs operate is conceptually straightforward – by comparing a requested URL to a previously compiled list of URLs and blocking access to the content at that URL if it appears on the list – accurately compiling and categorizing URLs to form the category lists is a more complex process that is impossible to conduct with any high degree of accuracy. The specific methods that filtering software companies use to compile and categorize control lists are, like the lists themselves, proprietary information. We will therefore set forth only general information on the various types of methods that all filtering companies deposed in this case use, and the sources of error that are at once inherent in those methods and unavoidable given the current architecture of the Internet and the current state of the art in automated classification systems. We base our understanding of these methods largely on the detailed testimony and expert report of Dr. Geoffrey Nunberg, which we credit. The plaintiffs offered, and the Court qualified, Nunberg as an expert witness on automated classification systems. When compiling and categorizing URLs for their category lists, filtering software companies go through two distinct phases. First, they must collect or "harvest" the relevant URLs from the vast number of sites that exist on the Web. Second, they must sort through the URLs they have collected to determine under which of the company's self-defined categories (if any), they should be classified. These tasks necessarily result in a tradeoff between overblocking (i.e., the blocking of content that does not meet the category definitions established by CIPA or by the filtering software companies), and underblocking (i.e., leaving off of a control list a URL that contains content that would meet the category definitions defined by CIPA or the filtering software companies). 1. The "Harvesting" Phase Filtering software companies, given their limited resources, do not attempt to index or classify all of the billions of pages that exist on the Web. Instead, the set of pages that they attempt to examine and classify is restricted to a small portion of the Web. The companies use a variety of automated and manual methods to identify a universe of Web sites and pages to "harvest" for classification. These methods include: entering certain key words into search engines; following links from a variety of online directories (e.g., generalized directories like Yahoo or various specialized directories, such as those that provide links to sexually explicit content); reviewing lists of newly-registered domain names; buying or licensing lists of URLs from third parties; "mining" access logs maintained by their customers; and reviewing other submissions from customers and the public. The goal of each of these methods is to identify as many URLs as possible that are likely to contain content that falls within the filtering companies' category definitions. The first method, entering certain keywords into commercial search engines, suffers from several limitations. First, the Web pages that may be "harvested" through this method are limited to those pages that search engines have already identified. However, as noted above, a substantial portion of the Web is not even theoretically indexable (because it is not linked to by any previously known page), and only approximately 50% of the pages that are theoretically indexable have actually been indexed by search engines. We are satisfied that the remainder of the indexable Web, and the vast "Deep Web," which cannot currently be indexed, includes materials that meet CIPA's categories of visual depictions that are obscene, child pornography, and harmful to minors. These portions of the Web cannot presently be harvested through the methods that filtering software companies use (except through reporting by customers or by observing users' log files), because they are not linked to other known pages. A user can, however, gain access to a Web site in the unindexed Web or the Deep Web if the Web site's proprietor or some other third party informs the user of the site's URL. Some Web sites, for example, send out mass email advertisements containing the site's URL, the spamming process we have described above. Second, the search engines that software companies use for harvesting are able to search text only, not images. This is of critical importance, because CIPA, by its own terms, covers only "visual depictions." 20 U.S.C. Sec. 9134(f)(1)(A)(i); 47 U.S.C. Sec. 254(h)(5)(B)(i). Image recognition technology is immature, ineffective, and unlikely to improve substantially in the near future. None of the filtering software companies deposed in this case employs image recognition technology when harvesting or categorizing URLs. Due to the reliance on automated text analysis and the absence of image recognition technology, a Web page with sexually explicit images and no text cannot be harvested using a search engine. This problem is complicated by the fact that Web site publishers may use image files rather than text to represent words, i.e., they may use a file that computers understand to be a picture, like a photograph of a printed word, rather than regular text, making automated review of their textual content impossible. For example, if the Playboy Web site displays its name using a logo rather than regular text, a search engine would not see or recognize the Playboy name in that logo. In addition to collecting URLs through search engines and Web directories (particularly those specializing in sexually explicit sites or other categories relevant to one of the filtering companies' category definitions), and by mining user logs and collecting URLs submitted by users, the filtering companies expand their list of harvested URLs by using "spidering" software that can "crawl" the lists of pages produced by the previous four methods, following their links downward to bring back the pages to which they link (and the pages to which those pages link, and so on, but usually down only a few levels). This spidering software uses the same type of technology that commercial Web search engines use. While useful in expanding the number of relevant URLs, the ability to retrieve additional pages through this approach is limited by the architectural feature of the Web that page-to-page links tend to converge rather than diverge. That means that the more pages from which one spiders downward through links, the smaller the proportion of new sites one will uncover; if spidering the links of 1000 sites retrieved through a search engine or Web directory turns up 500 additional distinct adult sites, spidering an additional 1000 sites may turn up, for example, only 250 additional distinct sites, and the proportion of new sites uncovered will continue to diminish as more pages are spidered. These limitations on the technology used to harvest a set of URLs for review will necessarily lead to substantial underblocking of material with respect to both the category definitions employed by filtering software companies and CIPA's definitions of visual depictions that are obscene, child pornography, or harmful to minors. 2. The "Winnowing" or Categorization Phase Once the URLs have been harvested, some filtering software companies use automated key word analysis tools to evaluate the content and/or features of Web sites or pages accessed via a particular URL and to tentatively prioritize or categorize them. This process may be characterized as "winnowing" the harvested URLs. Automated systems currently used by filtering software vendors to prioritize, and to categorize or tentatively categorize the content and/or features of a Web site or page accessed via a particular URL operate by means of (1) simple key word searching, and (2) the use of statistical algorithms that rely on the frequency and structure of various linguistic features in a Web page's text. The automated systems used to categorize pages do not include image recognition technology. All of the filtering companies deposed in the case also employ human review of some or all collected Web pages at some point during the process of categorizing Web pages. As with the harvesting process, each technique employed in the winnowing process is subject to limitations that can result in both overblocking and underblocking. First, simple key-word-based filters are subject to the obvious limitation that no string of words can identify all sites that contain sexually explicit content, and most strings of words are likely to appear in Web sites that are not properly classified as containing sexually explicit content. As noted above, filtering software companies also use more sophisticated automated classification systems for the statistical classification of texts. These systems assign weights to words or other textual features and use algorithms to determine whether a text belongs to a certain category. These algorithms sometimes make reference to the position of a word within a text or its relative proximity to other words. The weights are usually determined by machine learning methods (often described as "artificial intelligence"). In this procedure, which resembles an automated form of trial and error, a system is given a "training set" consisting of documents preclassified into two or more groups, along with a set of features that might be potentially useful in classifying the sets. The system then "learns" rules that assign weights to those features according to how well they work in classification, and assigns each new document to a category with a certain probability. Notwithstanding their "artificial intelligence" description, automated text classification systems are unable to grasp many distinctions between types of content that would be obvious to a human. And of critical importance, no presently conceivable technology can make the judgments necessary to determine whether a visual depiction fits the legal definitions of obscenity, child pornography, or harmful to minors. Finally, all the filtering software companies deposed in this case use some form of human review in their process of winnowing and categorizing Web pages, although one company admitted to categorizing some Web pages without any human review. SmartFilter states that "the final categorization of every Web site is done by a human reviewer." Another filtering company asserts that of the 10,000 to 30,000 Web pages that enter the "work queue" to be categorized each day, two to three percent of those are automatically categorized by their PornByRef system (which only applies to materials classified in the pornography category), and the remainder are categorized by human review. SurfControl also states that no URL is ever added to its database without human review. Human review of Web pages has the advantage of allowing more nuanced, if not more accurate, interpretations than automated classification systems are capable of making, but suffers from its own sources of error. The filtering software companies involved here have limited staff, of between eight and a few dozen people, available for hand reviewing Web pages. The reviewers that are employed by these companies base their categorization decisions on both the text and the visual depictions that appear on the sites or pages they are assigned to review. Human reviewers generally focus on English language Web sites, and are generally not required to be multi-lingual. Given the speed at which human reviewers must work to keep up with even a fraction of the approximately 1.5 million pages added to the publicly indexable Web each day, human error is inevitable. Errors are likely to result from boredom or lack of attentiveness, overzealousness, or a desire to "err on the side of caution" by screening out material that might be offensive to some customers, even if it does not fit within any of the company's category definitions. None of the filtering companies trains its reviewers in the legal definitions concerning what is obscene, child pornography, or harmful to minors, and none instructs reviewers to take community standards into account when making categorization decisions. Perhaps because of limitations on the number of human reviewers and because of the large number of new pages that are added to the Web every day, filtering companies also widely engage in the practice of categorizing entire Web sites at the "root URL," rather than engaging in a more fine-grained analysis of the individual pages within a Web site. For example, the filtering software companies deposed in this case all categorize the entire Playboy Web site as Adult, Sexually Explicit, or Pornography. They do not differentiate between pages within the site containing sexually explicit images or text, and for example, pages containing no sexually explicit content, such as the text of interviews of celebrities or politicians. If the "root" or "top-level" URL of a Web site is given a category tag, then access to all content on that Web site will be blocked if the assigned category is enabled by a customer. In some cases, whole Web sites are blocked because the filtering companies focus only on the content of the home page that is accessed by entering the root URL. Entire Web sites containing multiple Web pages are commonly categorized without human review of each individual page on that site. Web sites that may contain multiple Web pages and that require authentication or payment for access are commonly categorized based solely on a human reviewer's evaluation of the pages that may be viewed prior to reaching the authentication or payment page. Because there may be hundreds or thousands of pages under a root URL, filtering companies make it their primary mission to categorize the root URL, and categorize subsidiary pages if the need arises or if there is time. This form of overblocking is called "inheritance," because lower-level pages inherit the categorization of the root URL without regard to their specific content. In some cases, "reverse inheritance" also occurs, i.e., parent sites inherit the classification of pages in a lower level of the site. This might happen when pages with sexual content appear in a Web site that is devoted primarily to non-sexual content. For example, N2H2's Bess filtering product classifies every page in the Salon.com Web site, which contains a wide range of news and cultural commentary, as "Sex, Profanity," based on the fact that the site includes a regular column that deals with sexual issues. Blocking by both domain name and IP address is another practice in which filtering companies engage that is a function both of the architecture of the Web and of the exigencies of dealing with the rapidly expanding number of Web pages. The category lists maintained by filtering software companies can include URLs in either their human-readable domain name address form, their numeric IP address form, or both. Through "virtual hosting" services, hundreds of thousands of Web sites with distinct domain names may share a single numeric IP address. To the extent that filtering companies block the IP addresses of virtual hosting services, they will necessarily block a substantial amount of content without reviewing it, and will likely overblock a substantial amount of content. Another technique that filtering companies use in order to deal with a structural feature of the Internet is blocking the root level URLs of so-called "loophole" Web sites. These are Web sites that provide access to a particular Web page, but display in the user's browser a URL that is different from the URL with which the particular page is usually associated. Because of this feature, they provide a "loophole" that can be used to get around filtering software, i.e., they display a URL that is different from the one that appears on the filtering company's control list. "Loophole" Web sites include caches of Web pages that have been removed from their original location, "anonymizer" sites, and translation sites. Caches are archived copies that some search engines, such as Google, keep of the Web pages they index. The cached copy stored by Google will have a URL that is different from the original URL. Because Web sites often change rapidly, caches are the only way to access pages that have been taken down, revised, or have changed their URLs for some reason. For example, a magazine might place its current stories under a given URL, and replace them monthly with new stories. If a user wanted to find an article published six months ago, he or she would be unable to access it if not for Google's cached version. Some sites on the Web serve as a proxy or intermediary between a user and another Web page. When using a proxy server, a user does not access the page from its original URL, but rather from the URL of the proxy server. One type of proxy service is an "anonymizer." Users may access Web sites indirectly via an anonymizer when they do not want the Web site they are visiting to be able to determine the IP address from which they are accessing the site, or to leave "cookies" on their browser. Some proxy servers can be used to attempt to translate Web page content from one language to another. Rather than directly accessing the original Web page in its original language, users can instead indirectly access the page via a proxy server offering translation features. As noted above, filtering companies often block loophole sites, such as caches, anonymizers, and translation sites. The practice of blocking loophole sites necessarily results in a significant amount of overblocking, because the vast majority of the pages that are cached, for example, do not contain content that would match a filtering company's category definitions. Filters that do not block these loophole sites, however, may enable users to access any URL on the Web via the loophole site, thus resulting in substantial underblocking. 3. The Process for "Re-Reviewing" Web Pages After Their Initial Categorization Most filtering software companies do not engage in subsequent reviews of categorized sites or pages on a scheduled basis. Priority is placed on reviewing and categorizing new sites and pages, rather than on re-reviewing already categorized sites and pages. Typically, a filtering software vendor's previous categorization of a Web site is not re-reviewed for accuracy when new pages are added to the Web site. To the extent the Web site was previously categorized as a whole, the new pages added to the site usually share the categorization assigned by the blocking product vendor. This necessarily results in both over- and underblocking, because, as noted above, the content of Web pages and Web sites changes relatively rapidly. In addition to the content on Web sites or pages changing rapidly, Web sites themselves may disappear and be replaced by sites with entirely different content. If an IP address associated with a particular Web site is blocked under a particular category and the Web site goes out of existence, then the IP address likely would be reassigned to a different Web site, either by an Internet service provider or by a registration organization, such as the American Registry for Internet Numbers, see http://www.arin.net. In that case, the site that received the reassigned IP address would likely be miscategorized. Because filtering companies do not engage in systematic re-review of their category lists, such a site would likely remain miscategorized unless someone submitted it to the filtering company for re-review, increasing the incidence of over- and underblocking. This failure to re-review Web pages primarily increases a filtering company's rate of overblocking. However, if a filtering company does not re-review Web pages after it determines that they do not fall into any of its blocking categories, then that would result in underblocking (because, for example, a page might add sexually explicit content). 3. The Inherent Tradeoff Between Overblocking and Underblocking There is an inherent tradeoff between any filter's rate of overblocking (which information scientists also call "precision") and its rate of underblocking (which is also referred to as "recall"). The rate of overblocking or precision is measured by the proportion of the things a classification system assigns to a certain category that are appropriately classified. The plaintiffs' expert, Dr. Nunberg, provided the hypothetical example of a classification system that is asked to pick out pictures of dogs from a database consisting of 1000 pictures of animals, of which 80 were actually dogs. If it returned 100 hits, of which 80 were in fact pictures of dogs, and the remaining 20 were pictures of cats, horses, and deer, we would say that the system identified dog pictures with a precision of 80%. This would be analogous to a filter that overblocked at a rate of 20%. The recall measure involves determining what proportion of the actual members of a category the classification system has been able to identify. For example, if the hypothetical animal- picture database contained a total of 200 pictures of dogs, and the system identified 80 of them and failed to identify 120, it would have performed with a recall of 40%. This would be analogous to a filter that underblocked 60% of the material in a category. In automated classification systems, there is always a tradeoff between precision and recall. In the animal-picture example, the recall could be improved by using a looser set of criteria to identify the dog pictures in the set, such as any animal with four legs, and all the dogs would be identified, but cats and other animals would also be included, with a resulting loss of precision. The same tradeoff exists between rates of overblocking and underblocking in filtering systems that use automated classification systems. For example, an automated system that classifies any Web page that contains the word "sex" as sexually explicit will underblock much less, but overblock much more, than a system that classifies any Web page containing the phrase "free pictures of people having sex" as sexually explicit. This tradeoff between overblocking and underblocking also applies not just to automated classification systems, but also to filters that use only human review. Given the approximately two billion pages that exist on the Web, the 1.5 million new pages that are added daily, and the rate at which content on existing pages changes, if a filtering company blocks only those Web pages that have been reviewed by humans, it will be impossible, as a practical matter, to avoid vast amounts of underblocking. Techniques used by human reviewers such as blocking at the IP address level, domain name level, or directory level reduce the rates of underblocking, but necessarily increase the rates of overblocking, as discussed above. To use a simple example, it would be easy to design a filter intended to block sexually explicit speech that completely avoids overblocking. Such a filter would have only a single sexually explicit Web site on its control list, which could be re-reviewed daily to ensure that its content does not change. While there would be no overblocking problem with such a filter, such a filter would have a severe underblocking problem, as it would fail to block all the sexually explicit speech on the Web other than the one site on its control list. Similarly, it would also be easy to design a filter intended to block sexually explicit speech that completely avoids underblocking. Such a filter would operate by permitting users to view only a single Web site, e.g., the Sesame Street Web site. While there would be no underblocking problem with such a filter, it would have a severe overblocking problem, as it would block access to millions of non-sexually explicit sites on the Web other than the Sesame Street site. While it is thus quite simple to design a filter that does not overblock, and equally simple to design a filter that does not underblock, it is currently impossible, given the Internet's size, rate of growth, rate of change, and architecture, and given the state of the art of automated classification systems, to develop a filter that neither underblocks nor overblocks a substantial amount of speech. The more effective a filter is at blocking Web sites in a given category, the more the filter will necessarily overblock. Any filter that is reasonably effective in preventing users from accessing sexually explicit content on the Web will necessarily block substantial amounts of non- sexually explicit speech. 4. Attempts to Quantify Filtering Programs' Rates of Over- and Underblocking The government presented three studies, two from expert witnesses, and one from a librarian fact witness who conducted a study using Internet use logs from his own library, that attempt to quantify the over- and underblocking rates of five different filtering programs. The plaintiffs presented one expert witness who attempted to quantify the rates of over- and underblocking for various programs. Each of these attempts to quantify rates of over- and underblocking suffers from various methodological flaws. The fundamental problem with calculating over- and underblocking rates is selecting a universe of Web sites or Web pages to serve as the set to be tested. The studies that the parties submitted in this case took two different approaches to this problem. Two of the studies, one prepared by the plaintiffs' expert witness Chris Hunter, a graduate student at the University of Pennsylvania, and the other prepared by the defendants' expert, Chris Lemmons of eTesting Laboratories, in Research Triangle Park, North Carolina, approached this problem by compiling two separate lists of Web sites, one of URLs that they deemed should be blocked according to the filters' criteria, and another of URLs that they deemed should not be blocked according to the filters' criteria. They compiled these lists by choosing Web sites from the results of certain key word searches. The problem with this selection method is that it is neither random, nor does it necessarily approximate the universe of Web pages that library patrons visit. The two other studies, one by David Biek, head librarian at the Tacoma Public Library's main branch, and one by Cory Finnell of Certus Consulting Group, of Seattle, Washington, chose actual logs of Web pages visited by library patrons during specific time periods as the universe of Web pages to analyze. This method, while surely not as accurate as a truly random sample of the indexed Web would be (assuming it would be possible to take such a sample), has the virtue of using the actual Web sites that library patrons visited during a specific period. Because library patrons selected the universe of Web sites that Biek and Finnell's studies analyzed, this removes the possibility of bias resulting from the study author's selection of the universe of sites to be reviewed. We find that the Lemmons and Hunter studies are of little probative value because of the methodology used to select the sample universe of Web sites to be tested. We will therefore focus on the studies conducted by Finnell and Biek in trying to ascertain estimates of the rates of over- and underblocking that takes place when filters are used in public libraries. The government hired expert witness Cory Finnell to study the Internet logs compiled by the public libraries systems in Tacoma, Washington; Westerville, Ohio; and Greenville, South Carolina. Each of these libraries uses filtering software that keeps a log of information about individual Web site requests made by library patrons. Finnell, whose consulting firm specializes in data analysis, has substantial experience evaluating Internet access logs generated on networked systems. He spent more than a year developing a reporting tool for N2H2, and, in the course of that work, acquired a familiarity with the design and operation of Internet filtering products. The Tacoma library uses Cyber Patrol filtering software, and logs information only on sites that were blocked. Finnell worked from a list of all sites that were blocked in the Tacoma public library in the month of August 2001. The Westerville library uses the Websense filtering product, and logs information on both blocked sites and non-blocked sites. When the logs reach a certain size, they are overwritten by new usage logs. Because of this overwriting feature, logs were available to Finnell only for the relatively short period from October 1, 2001 to October 3, 2001. The Greenville library uses N2H2's filtering product and logs both blocked sites and sites that patrons accessed. The logs contain more than 500,000 records per day. Because of the volume of the records, Finnell restricted his analysis to the period from August 2, 2001 to August 15, 2001. Finnell calculated an overblocking rate for each of the three libraries by examining the host Web site containing each of the blocked pages. He did not employ a sampling technique, but instead examined each blocked Web site. If the contents of a host Web site or the pages within the Web site were consistent with the filtering product's definition of the category under which the site was blocked, Finnell considered it to be an accurate block. Finnell and three others, two of whom were temporary employees, examined the Web sites to determine whether they were consistent with the filtering companies' category definitions. Their review was, of course, necessarily limited by: (1) the clarity of the filtering companies' category definitions; (2) Finnell's and his employees' interpretations of the definitions; and (3) human error. The study's reliability is also undercut by the fact that Finnell failed to archive the blocked Web pages as they existed either at the point that a patron in one of the three libraries was denied access or when Finnell and his team reviewed the pages. It is therefore impossible for anyone to check the accuracy and consistency of Finnell's review team, or to know whether the pages contained the same content when the block occurred as they did when Finnell's team reviewed them. This is a key flaw, because the results of the study depend on individual determinations as to overblocking and underblocking, in which Finnell and his team were required to compare what they saw on the Web pages that they reviewed with standard definitions provided by the filtering company. Tacoma library's Cyber Patrol software blocked 836 unique Web sites during the month of August. Finnell determined that 783 of those blocks were accurate and that 53 were inaccurate. The error rate for Cyber Patrol was therefore estimated to be 6.34%, and the true error rate was estimated with 95% confidence to lie within the range of 4.69% to 7.99%. Finnell and his team reviewed 185 unique Web sites that were blocked by Westerville Library's Websense filter during the logged period and determined that 158 of them were accurate and that 27 of them were inaccurate. He therefore estimated the Websense filter's overblocking rate at 14.59% with a 95% confidence interval of 9.51% to 19.68%. Additionally, Finnell examined 1,674 unique Web sites that were blocked by the Greenville Library's N2H2 filter during the relevant period and determined that 1,520 were accurate and that 87 were inaccurate. This yields an estimated overblocking rate of 5.41% and a 95% confidence interval of 4.33% to 6.55%. Finnell's methodology was materially flawed in that it understates the rate of overblocking for the following reasons. First, patrons from the three libraries knew that the filters were operating, and may have been deterred from attempting to access Web sites that they perceived to be "borderline" sites, i.e., those that may or may not have been appropriately filtered according to the filtering companies' category definitions. Second, in their cross-examination of Finnell, the plaintiffs offered screen shots of a number of Web sites that, according to Finnell, had been appropriately blocked, but that Finnell admitted contained only benign materials. Finnell's explanation was that the Web sites must have changed between the time when he conducted the study and the time of the trial, but because he did not archive the images as they existed when his team reviewed them for the study, there is no way to verify this. Third, because of the way in which Finnell counted blocked Web sites – i.e., if separate patrons attempted to reach the same Web site, or one or more patrons attempted to access more than one page on a single Web site, Finnell counted these attempts as a single block, see supra note 10 – his results necessarily understate the number of times that patrons were erroneously denied access to information. At all events, there is no doubt that Finnell's estimated rates of overblocking, which are based on the filtering companies' own category definitions, significantly understate the rate of overblocking with respect to CIPA's category definitions for filtering for adults. The filters used in the Tacoma, Westerville, and Greenville libraries were configured to block, among other things, images of full nudity and sexually explicit materials. There is no dispute, however, that these categories are far broader than CIPA's categories of visual depictions that are obscene, or child pornography, the two categories of material that libraries subject to CIPA must certify that they filter during adults' use of the Internet. Finnell's study also calculated underblocking rates with respect to the Westerville and Greenville Libraries (both of which logged not only their blocked sites, but all sites visited by their patrons), by taking random samples of URLs from the list of sites that were not blocked. The study used a sample of 159 sites that were accessed by Westerville patrons and determined that only one of them should have been blocked under the software's category definitions, yielding an underblocking rate of 0.6%. Given the size of the sample, the 95% confidence interval is 0% to 1.86%. The study examined a sample of 254 Web sites accessed by patrons in Greenville and found that three of them should have been blocked under the filtering software's category definitions. This results in an estimated underblocking rate of 1.2% with a 95% confidence interval ranging from 0% to 2.51%. We do not credit Finnell's estimates of the rates of underblocking in the Westerville and Greenville public libraries for several reasons. First, Finnell's estimates likely understate the actual rate of underblocking because patrons, who knew that filtering programs were operating in the Greenville and Westerville Libraries, may have refrained from attempting to access sites with sexually explicit materials, or other contents that they knew would probably meet a filtering program's blocked categories. Second, and most importantly, we think that the formula that Finnell used to calculate the rate of underblocking in these two libraries is not as meaningful as the formula that information scientists typically use to calculate a rate of recall, which we describe above in Subsection II.E.3. As Dr. Nunberg explained, the standard method that information scientists use to calculate a rate of recall is to sort a set of items into two groups, those that fall into a particular category (e.g., those that should have been blocked by a filter) and those that do not. The rate of recall is then calculated by dividing the number of items that the system correctly identified as belonging to the category by the total number of items in the category. In the example above, we discussed a database that contained 1000 photographs. Assume that 200 of these photographs were pictures of dogs. If, for example, a classification system designed to identify pictures of dogs identified 80 of the dog pictures and failed to identify 120, it would have performed with a recall rate of 40%. This would be analogous to a filter that underblocked at a rate of 60%. To calculate the recall rate of the filters in the Westerville and Greenville public libraries in accordance with the standard method described above, Finnell should have taken a sample of sites from the libraries' Internet use logs (including both sites that were blocked and sites that were not), and divided the number of sites in the sample that the filter incorrectly failed to block by the total number of sites in the sample that should have been blocked. What Finnell did instead was to take a sample of sites that were not blocked, and divide the total number of sites in this sample by the number of sites in the sample that should have been blocked. This made the denominator that Finnell used much larger than it would have been had he used the standard method for calculating recall, consequently making the underblocking rate that he calculated much lower than it would have been under the standard method. Moreover, despite the relatively low rates of underblocking that Finnell's study found, librarians from several of the libraries proffered by defendants that use blocking products, including Greenville, Tacoma, and Westerville, testified that there are instances of underblocking in their libraries. No quantitative evidence was presented comparing the effectiveness of filters and other alternative methods used by libraries to prevent patrons from accessing visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. Biek undertook a similar study of the overblocking rates that result from the Tacoma Library's use of the Cyber Patrol software. He began with the 3,733 individual blocks that occurred in the Tacoma Library in October 2000 and drew from this data set a random sample of 786 URLs. He calculated two rates of overblocking, one with respect to the Tacoma Library's policy on Internet use – that the pictorial content of the site may not include "graphic materials depicting full nudity and sexual acts which are portrayed obviously and exclusively for sensational or pornographic purposes" – and the other with respect to Cyber Patrol's own category definitions. He estimated that Cyber Patrol overblocked 4% of all Web pages in October 2000 with respect to the definitions of the Tacoma Library's Internet Policy and 2% of all pages with respect to Cyber Patrol's own category definitions. It is difficult to determine how reliable Biek's conclusions are, because he did not keep records of the raw data that he used in his study; nor did he archive images of the Web pages as they looked when he made the determination whether they were properly classified by the Cyber Patrol program. Without this information, it is impossible to verify his conclusions (or to undermine them). And Biek's study certainly understates Cyber Patrol's overblocking rate for some of the same reasons that Finnell's study likely understates the true rates of overblocking used in the libraries that he studied. We also note that Finnell's study, which analyzed a set of Internet logs from the Tacoma Library during which the same filtering program was operating with the same set of blocking categories enabled, found a significantly higher rate of overblocking than the Biek study did. Biek found a rate of overblocking of approximately 2% while the Finnell study estimated a 6.34% rate of overblocking. At all events, the category definitions employed by CIPA, at least with respect to adult use – visual depictions that are obscene or child pornography – are narrower than the materials prohibited by the Tacoma Library policy, and therefore Biek's study understates the rate of overblocking with respect to CIPA's definitions for adults. In sum, we think that Finnell's study, while we do not credit its estimates of underblocking, is useful because it states lower bounds with respect to the rates of overblocking that occurred when the Cyber Patrol, Websense, and N2H2 filters were operating in public libraries. While these rates are substantial – between nearly 6% and 15% – we think, for the reasons stated above, that they greatly understate the actual rates of overblocking that occurs, and therefore cannot be considered as anything more than minimum estimates of the rates of overblocking that happens in all filtering programs. 5. Methods of Obtaining Examples of Erroneously Blocked Web Sites The plaintiffs assembled a list of several thousand Web sites that they contend were, at the time of the study, likely to have been erroneously blocked by one or more of four major commercial filtering programs: SurfControl Cyber Patrol 6.0.1.47, N2H2 Internet Filtering 2.0, Secure Computing SmartFilter 3.0.0.01, and Websense Enterprise 4.3.0. They compiled this list using a two-step process. First, Benjamin Edelman, an expert witness who testified before us, compiled a list of more than 500,000 URLs and devised a program to feed them through all four filtering programs in order to compile a list of URLs that might have been erroneously blocked by one or more of the programs. Second, Edelman forwarded subsets of the list that he compiled to librarians and professors of library science whom the plaintiffs had hired to review the blocked sites for suitability in the public library context. Edelman assembled the list of URLs by compiling Web pages that were blocked by the following categories in the four programs: Cyber Patrol: Adult/Sexually Explicit; N2H2: Adults Only, Nudity, Pornography, and Sex, with "exceptions" engaged in the categories of Education, For Kids, History, Medical, Moderated, and Text/Spoken Only; SmartFilter: Sex, Nudity, Mature, and Extreme; Websense: Adult Content, Nudity, and Sex. Edelman then assembled a database of Web sites for possible testing. He derived this list by automatically compiling URLs from the Yahoo index of Web sites, taking them from categories from the Yahoo index that differed significantly from the classifications that he had enabled in each of the blocking programs (taking, for example, Web sites from Yahoo's "Government" category). He then expanded this list by entering URLs taken from the Yahoo index into the Google search engine's "related" search function, which provides the user with a list of similar sites. Edelman also included and excluded specific Web sites at the request of the plaintiffs' counsel. Taking the list of more than 500,000 URLs that he had compiled, Edelman used an automated system that he had developed to test whether particular URLs were blocked by each of the four filtering programs. This testing took place between February and October 2001. He recorded the specific dates on which particular sites were blocked by particular programs, and, using commercial archiving software, archived the contents of the home page of the blocked Web sites (and in some instances the pages linked to from the home page) as it existed when it was blocked. Through this process, Edelman, whose testimony we credit, compiled a list of 6,777 URLs that were blocked by one or more of the four programs. Because these sites were chosen from categories from the Yahoo directory that were unrelated to the filtering categories that were enabled during the test (i.e., "Government" vs. "Nudity"), he reasoned that they were likely erroneously blocked. As explained in the margin, Edelman repeated his testing and discovered that Cyber Patrol had unblocked most of the pages on the list of 6,777 after he had published the list on his Web site. His records indicate that an employee of SurfControl (the company that produces Cyber Patrol software) accessed his site and presumably checked out the URLs on the list, thus confirming Edelman's judgment that the majority of URLs on the list were erroneously blocked. Edelman forwarded the list of blocked sites to Dr. Joseph Janes, an Assistant Professor in the Information School of the University of Washington who also testified at trial as an expert witness. Janes reviewed the sites that Edelman compiled to determine whether they are consistent with library collection development, i.e., whether they are sites to which a reference librarian would, consistent with professional standards, direct a patron as a source of information. Edelman forwarded Janes a list of 6,775 Web sites, almost the entire list of blocked sites that he collected, from which Janes took a random sample of 859 using the SPSS statistical software package. Janes indicated that he chose a sample size of 859 because it would yield a 95% confidence interval of plus or minus 2.5%. Janes recruited a group of 16 reviewers, most of whom were current or former students at the University of Washington's Information School, to help him identify which sites were appropriate for library use. We describe the process that he used in the margin. Due to the inability of a member of Janes's review team to complete the reviewing process, Janes had to cut 157 Web sites out of the sample, but because the Web sites were randomly assigned to reviewers, it is unlikely that these sites differed significantly from the rest of the sample. That left the sample size at 699, which widened the 95% confidence interval to plus or minus 2.8%. Of the total 699 sites reviewed, Janes's team concluded that 165 of them, or 23.6% percent of the sample, were not of any value in the library context (i.e., no librarian would, consistent with professional standards, refer a patron to these sites as a source of information). They were unable to find 60 of the Web sites, or 8.6% of the sample. Therefore, they concluded that the remaining 474 Web sites, or 67.8% of the sample, were examples of overblocking with respect to materials that are appropriate sources of information in public libraries. Applying a 95% confidence interval of plus or minus 2.8%, the study concluded that we can be 95% confident that the actual percentage of sites in the list of 6,775 sites that are appropriate for use in public libraries is somewhere between 65.0% and 70.6%. In other words, we can be 95% certain that the actual number of sites out of the 6,775 that Edelman forwarded to Janes that are appropriate for use in public libraries (under Janes's standard) is somewhere between 4,403 and 4,783. The government raised some valid criticisms of Janes's methodology, attacking in particular the fact that, while sites that received two "yes" votes in the first round of voting were determined to be of sufficient interest in a library context to be removed from further analysis, sites receiving one or two "no" votes were sent to the next round. The government also correctly points out that results of Janes's study can be generalized only to the population of 6,775 sites that Edelman forwarded to Janes. Even taking these criticisms into account, and discounting Janes's numbers appropriately, we credit Janes's study as confirming that Edelman's set of 6,775 Web sites contains at least a few thousand URLs that were erroneously blocked by one or more of the four filtering programs that he used, whether judged against CIPA's definitions, the filters' own category criteria, or against the standard that the Janes study used. Edelman tested only 500,000 unique URLs out of the 4000 times that many, or two billion, that are estimated to exist in the indexable Web. Even assuming that Edelman chose the URLs that were most likely to be erroneously blocked by commercial filtering programs, we conclude that many times the number of pages that Edelman identified are erroneously blocked by one or more of the filtering programs that he tested. Edelman's and Janes's studies provide numerous specific examples of Web pages that were erroneously blocked by one or more filtering programs. The Web pages that were erroneously blocked by one or more of the filtering programs do not fall into any neat patterns; they range widely in subject matter, and it is difficult to tell why they may have been overblocked. The list that Edelman compiled, for example, contains Web pages relating to religion, politics and government, health, careers, education, travel, sports, and many other topics. In the next section, we provide examples from each of these categories. 6. Examples of Erroneously Blocked Web Sites Several of the erroneously blocked Web sites had content relating to churches, religious orders, religious charities, and religious fellowship organizations. These included the following Web sites: the Knights of Columbus Council 4828, a Catholic men's group associated with St. Patrick's Church in Fallon, Nevada, http://msnhomepages.talkcity.com/SpiritSt/kofc4828, which was blocked by Cyber Patrol in the "Adult/Sexually Explicit" category; the Agape Church of Searcy, Arkansas, http://www.agapechurch.com, which was blocked by Websense as "Adult Content"; the home page of the Lesbian and Gay Havurah of the Long Beach, California Jewish Community Center, http://www.compupix.com/gay/havurah.htm, which was blocked by N2H2 as "Adults Only, Pornography," by Smartfilter as "Sex," and by Websense as "Sex"; Orphanage Emmanuel, a Christian orphanage in Honduras that houses 225 children, http://home8.inet.tele.dk/rfb_viva, which was blocked by Cyber Patrol in the "Adult/Sexually Explicit" category; Vision Art Online, which sells wooden wall hangings for the home that contain prayers, passages from the Bible, and images of the Star of David, http://www.visionartonline.com, which was blocked in Websense's "Sex" category; and the home page of Tenzin Palmo, a Buddhist nun, which contained a description of her project to build a Buddhist nunnery and international retreat center for women, http://www.tenzinpalmo.com, which was categorized as "Nudity" by N2H2. Several blocked sites also contained information about governmental entities or specific political candidates, or contained political commentary. These included: the Web site for Kelley Ross, a Libertarian candidate for the California State Assembly, http://www.friesian.com/ross/ca40, which N2H2 blocked as "Nudity"; the Web site for Bob Coughlin, a town selectman in Dedham, Massachusetts, http://www.bobcoughlin.org, which was blocked under N2H2's "Nudity" category; a list of Web sites containing information about government and politics in Adams County, Pennsylvania, http://www.geocities.com/adamscopa, which was blocked by Websense as "Sex"; the Web site for Wisconsin Right to Life, http://www.wrtl.org, which N2H2 blocked as "Nudity"; a Web site that promotes federalism in Uganda, http://federo.com, which N2H2 blocked as "Adults Only, Pornography"; "Fight the Death Penalty in the USA," a Danish Web site dedicated to criticizing the American system of capital punishment, http://www.fdp.dk, which N2H2 blocked as "Pornography"; and "Dumb Laws," a humor Web site that makes fun of outmoded laws, http://www.dumblaws.com, which N2H2 blocked under its "Sex" category. Erroneously blocked Web sites relating to health issues included the following: a guide to allergies, http://www.x- sitez.com/allergy, which was categorized as "Adults Only, Pornography" by N2H2; a health question and answer site sponsored by Columbia University, http://www.goaskalice.com.columbia.edu, which was blocked as "Sex" by N2H2, and as "Mature" by Smartfilter; the Western Amputee Support Alliance Home Page, http://www.usinter.net/wasa, which was blocked by N2H2 as "Pornography"; the Web site of the Willis-Knighton Cancer Center, a Shreveport, Louisiana cancer treatment facility, http://cancerftr.wkmc.com, which was blocked by Websense under the "Sex" category; and a site dealing with halitosis, http://www.dreamcastle.com/tungs, which was blocked by N2H2 as "Adults, Pornography," by Smartfilter as "Sex," by Cyber Patrol as "Adult/Sexually Explicit," and by Websense as "Adult Content." The filtering programs also erroneously blocked several Web sites having to do with education and careers. The filtering programs blocked two sites that provide information on home schooling. "HomEduStation – the Internet Source for Home Education," http://www.perigee.net/~mcmullen/homedustation/, was categorized by Cyber Patrol as "Adult/Sexually Explicit." Smartfilter blocked "Apricot: A Web site made by and for home schoolers," http://apricotpie.com, as "Sex." The programs also miscategorized several career-related sites. "Social Work Search," http://www.socialworksearch.com/, is a directory for social workers that Cyber Patrol placed in its "Adult/Sexually Explicit" category. The "Gay and Lesbian Chamber of Southern Nevada," http://www.lambdalv.com, "a forum for the business community to develop relationships within the Las Vegas lesbian, gay, transsexual, and bisexual community" was blocked by N2H2 as "Adults Only, Pornography." A site for aspiring dentists, http://www.vvm.com/~bond/home.htm, was blocked by Cyber Patrol in its "Adult/Sexually Explicit" category. The filtering programs erroneously blocked many travel Web sites, including: the Web site for the Allen Farmhouse Bed & Breakfast of Alleghany County, North Carolina, http://planet- nc.com/Beth/index.html, which Websense blocked as "Adult Content"; Odysseus Gay Travel, a travel company serving gay men, http://www.odyusa.com, which N2H2 categorized as "Adults Only, Pornography"; Southern Alberta Fly Fishing Outfitters, http://albertaflyfish.com, which N2H2 blocked as "Pornography"; and "Nature and Culture Conscious Travel," a tour operator in Namibia, http://www.trans-namibia-tours.com, which was categorized as "Pornography" by N2H2. The filtering programs also miscategorized a large number of sports Web sites. These included: a site devoted to Willie O'Ree, the first African-American player in the National Hockey League, http://www.missioncreep.com/mw/oree.html, which Websense blocked under its "Nudity" category; the home page of the Sydney University Australian Football Club, http://www.tek.com.au/suafc, which N2H2 blocked as "Adults Only, Pornography," Smartfilter blocked as "Sex," Cyber Patrol blocked as "Adult/Sexually Explicit" and Websense blocked as "Sex"; and a fan's page devoted to the Toronto Maple Leafs hockey team, http://www.torontomapleleafs.atmypage.com, which N2H2 blocked under the "Pornography" category. 7. Conclusion: The Effectiveness of Filtering Programs Public libraries have adopted a variety of means of dealing with problems created by the provision of Internet access. The large amount of sexually explicit speech that is freely available on the Internet has, to varying degrees, led to patron complaints about such matters as unsought exposure to offensive material, incidents of staff and patron harassment by individuals viewing sexually explicit content on the Internet, and the use of library computers to access illegal material, such as child pornography. In some libraries, youthful library patrons have persistently attempted to use the Internet to access hardcore pornography. Those public libraries that have responded to these problems by using software filters have found such filters to provide a relatively effective means of preventing patrons from accessing sexually explicit material on the Internet. Nonetheless, out of the entire universe of speech on the Internet falling within the filtering products' category definitions, the filters will incorrectly fail to block a substantial amount of speech. Thus, software filters have not completely eliminated the problems that public libraries have sought to address by using the filters, as evidenced by frequent instances of underblocking. Nor is there any quantitative evidence of the relative effectiveness of filters and the alternatives to filters that are also intended to prevent patrons from accessing illegal content on the Internet. Even more importantly (for this case), although software filters provide a relatively cheap and effective, albeit imperfect, means for public libraries to prevent patrons from accessing speech that falls within the filters' category definitions, we find that commercially available filtering programs erroneously block a huge amount of speech that is protected by the First Amendment. Any currently available filtering product that is reasonably effective in preventing users from accessing content within the filter's category definitions will necessarily block countless thousands of Web pages, the content of which does not match the filtering company's category definitions, much less the legal definitions of obscenity, child pornography, or harmful to minors. Even Finnell, an expert witness for the defendants, found that between 6% and 15% of the blocked Web sites in the public libraries that he analyzed did not contain content that meets even the filtering products' own definitions of sexually explicit content, let alone CIPA's definitions. This phenomenon occurs for a number of reasons explicated in the more detailed findings of fact supra. These include limitations on filtering companies' ability to: (1) harvest Web pages for review; (2) review and categorize the Web pages that they have harvested; and (3) engage in regular re-review of the Web pages that they have previously reviewed. The primary limitations on filtering companies' ability to harvest Web pages for review is that a substantial majority of pages on the Web are not indexable using the spidering technology that Web search engines use, and that together, search engines have indexed only around half of the Web pages that are theoretically indexable. The fast rate of growth in the number of Web pages also limits filtering companies' ability to harvest pages for review. These shortcomings necessarily result in significant underblocking. Several limitations on filtering companies' ability to review and categorize the Web pages that they have harvested also contribute to over- and underblocking. First, automated review processes, even those based on "artificial intelligence," are unable with any consistency to distinguish accurately material that falls within a category definition from material that does not. Moreover, human review of URLs is hampered by filtering companies' limited staff sizes, and by human error or misjudgment. In order to deal with the vast size of the Web and its rapid rates of growth and change, filtering companies engage in several practices that are necessary to reduce underblocking, but inevitably result in overblocking. These include: (1) blocking whole Web sites even when only a small minority of their pages contain material that would fit under one of the filtering company's categories (e.g., blocking the Salon.com site because it contains a sex column); (2) blocking by IP address (because a single IP address may contain many different Web sites and many thousands of pages of heterogenous content); and (3) blocking loophole sites such as translator sites and cache sites, which archive Web pages that have been removed from the Web by their original publisher. Finally, filtering companies' failure to engage in regular re-review of Web pages that they have already categorized (or that they have determined do not fall into any category) results in a substantial amount of over- and underblocking. For example, Web publishers change the contents of Web pages frequently. The problem also arises when a Web site goes out of existence and its domain name or IP address is reassigned to a new Web site publisher. In that case, a filtering company's previous categorization of the IP address or domain name would likely be incorrect, potentially resulting in the over- or underblocking of many thousands of pages. The inaccuracies that result from these limitations of filtering technology are quite substantial. At least tens of thousands of pages of the indexable Web are overblocked by each of the filtering programs evaluated by experts in this case, even when considered against the filtering companies' own category definitions. Many erroneously blocked pages contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies' category definitions, such as "pornography" or "sex." The number of overblocked sites is of course much higher with respect to the definitions of obscenity and child pornography that CIPA employs for adults, since the filtering products' category definitions, such as "sex" and "nudity," encompass vast amounts of Web pages that are neither child pornography nor obscene. Thus, the number of pages of constitutionally protected speech blocked by filtering products far exceeds the many thousands of pages that are overblocked by reference to the filtering products' category definitions. No presently conceivable technology can make the judgments necessary to determine whether a visual depiction fits the legal definitions of obscenity, child pornography, or harmful to minors. Given the state of the art in filtering and image recognition technology, and the rapidly changing and expanding nature of the Web, we find that filtering products' shortcomings will not be solved through a technical solution in the foreseeable future. In sum, filtering products are currently unable to block only visual depictions that are obscene, child pornography, or harmful to minors (or, only content matching a filtering product's category definitions) while simultaneously allowing access to all protected speech (or, all content not matching the blocking product's category definitions). Any software filter that is reasonably effective in blocking access to Web pages that fall within its category definitions will necessarily erroneously block a substantial number of Web pages that do not fall within its category definitions. 2. Analytic Framework for the Opinion: The Centrality of Dole and the Role of the Facial Challenge Both the plaintiffs and the government agree that, because this case involves a challenge to the constitutionality of the conditions that Congress has set on state actors' receipt of federal funds, the Supreme Court's decision in South Dakota v. Dole, 483 U.S. 203 (1987), supplies the proper threshold analytic framework. The constitutional source of Congress's spending power is Article I, Sec. 8, cl. 1, which provides that "Congress shall have Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States." In Dole, the Court upheld the constitutionality of a federal statute requiring the withholding of federal highway funds from any state with a drinking age below 21. Id. at 211-12. In sustaining the provision's constitutionality, Dole articulated four general constitutional limitations on Congress's exercise of the spending power. First, "the exercise of the spending power must be in pursuit of 'the general welfare.'" Id. at 207. Second, any conditions that Congress sets on states' receipt of federal funds must be sufficiently clear to enable recipients "to exercise their choice knowingly, cognizant of the consequences of their participation." Id. (internal quotation marks and citation omitted). Third, the conditions on the receipt of federal funds must bear some relation to the purpose of the funding program. Id. And finally, "other constitutional provisions may provide an independent bar to the conditional grant of federal funds." Id. at 208. In particular, the spending power "may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress' broad spending power." Id. at 210. Plaintiffs do not contend that CIPA runs afoul of the first three limitations. However, they do allege that CIPA is unconstitutional under the fourth prong of Dole because it will induce public libraries to violate the First Amendment. Plaintiffs therefore submit that the First Amendment "provide[s] an independent bar to the conditional grant of federal funds" created by CIPA. Id. at 208. More specifically, they argue that by conditioning public libraries' receipt of federal funds on the use of software filters, CIPA will induce public libraries to violate the First Amendment rights of Internet content-providers to disseminate constitutionally protected speech to library patrons via the Internet, and the correlative First Amendment rights of public library patrons to receive constitutionally protected speech on the Internet. The government concedes that under the Dole framework, CIPA is facially invalid if its conditions will induce public libraries to violate the First Amendment. The government and the plaintiffs disagree, however, on the meaning of Dole's "inducement" requirement in the context of a First Amendment facial challenge to the conditions that Congress places on state actors' receipt of federal funds. The government contends that because plaintiffs are bringing a facial challenge, they must show that under no circumstances is it possible for a public library to comply with CIPA's conditions without violating the First Amendment. The plaintiffs respond that even if it is possible for some public libraries to comply with CIPA without violating the First Amendment, CIPA is facially invalid if it "will result in the impermissible suppression of a substantial amount of protected speech." Because it was clear in Dole that the states could comply with the challenged conditions that Congress attached to the receipt of federal funds without violating the Constitution, the Dole Court did not have occasion to explain fully what it means for Congress to use the spending power to "induce [recipients] to engage in activities that would themselves be unconstitutional." Dole, 483 U.S. at 210; see id. at 211 ("Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State's action in so doing would not violate the constitutional rights of anyone."). Although the proposition that Congress may not pay state actors to violate citizens' First Amendment rights is unexceptionable when stated in the abstract, it is unclear what exactly a litigant must establish to facially invalidate an exercise of Congress's spending power on this ground. In general, it is well-established that a court may sustain a facial challenge to a statute only if the plaintiff demonstrates that the statute admits of no constitutional application. See United States v. Salerno, 481 U.S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."); see also Bowen v. Kendrick, 487 U.S. 589, 612 (1988) ("It has not been the Court's practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that particular applications may result in unconstitutional use of funds.") (internal quotation marks and citation omitted). First Amendment overbreadth doctrine creates a limited exception to this rule by permitting facial invalidation of a statute that burdens a substantial amount of protected speech, even if the statute may be constitutionally applied in particular circumstances. "The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere. Under this principle, [a law] is unconstitutional on its face if it prohibits a substantial amount of protected expression." Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1399 (2002); see also Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). This more liberal test of a statute's facial validity under the First Amendment stems from the recognition that where a statute's reach contemplates a number of both constitutional and unconstitutional applications, the law's sanctions may deter individuals from challenging the law's validity by engaging in constitutionally protected speech that may nonetheless be proscribed by the law. Without an overbreadth doctrine, "the contours of regulation would have to be hammered out case by case – and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation." Dombrowski v. Pfister, 380 U.S. 479, 487 (1965); see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985) ("[A]n individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court – those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid."). Plaintiffs argue that the overbreadth doctrine is applicable here, since CIPA "threatens to chill free speech – because it will censor a substantial amount of protected speech, because it is vague, and because the law creates a prior restraint . . . ." Unlike the statutes typically challenged as facially overbroad, however, CIPA does not impose criminal penalties on those who violate its conditions. Cf. Freedom of Speech Coalition, 122 S. Ct. at 1398 ("With these severe penalties in force, few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law."). Thus, the rationale for permitting facial challenges to laws that may be constitutionally applied in some instances is less compelling in cases such as this, which involve challenges to Congress's exercise of the spending power, than in challenges to criminal statutes. Nonetheless, "even minor punishments can chill protected speech," id., and absent the ability to challenge CIPA on its face, public libraries that depend on federal funds may decide to comply with CIPA's terms, thereby denying patrons access to substantial amounts of constitutionally protected speech, rather than refusing to comply with CIPA's terms and consequently losing the benefits of federal funds. See 47 C.F.R. Sec. 54.520(e)(1) ("A school or library that knowingly fails to ensure the use of computers in accordance with the certifications required by this section, must reimburse any funds and discounts received under the federal universal support service support mechanism for schools and libraries for the period in which there was noncompliance."). Even in cases where the only penalty for failure to comply with a statute is the withholding of federal funds, the Court has sustained facial challenges to Congress's exercise of the spending power. See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (declaring unconstitutional on its face a federal statute restricting the ability of legal services providers who receive federal funds to engage in activity protected by the First Amendment). The Court's unconstitutional conditions cases, such as Velazquez, are not strictly controlling, since they do not require a showing that recipients who comply with the conditions attached to federal funding will, as state actors, violate others' constitutional rights, as is the case under the fourth prong of Dole. However, they are highly instructive. The Supreme Court's pronouncements in the unconstitutional conditions cases on what is necessary for a plaintiff to mount a successful First Amendment facial challenge to an exercise of Congress's spending power have not produced a seamless web. For example, in Rust v. Sullivan, 500 U.S. 173 (1991), the Court rejected a First Amendment facial challenge to federal regulations prohibiting federally funded healthcare clinics from providing counseling concerning the use of abortion as a method of family planning, explaining that: Petitioners are challenging the facial validity of the regulations. Thus, we are concerned only with the question whether, on their face, the regulations are both authorized by the Act and can be construed in such a manner that they can be applied to a set of individuals without infringing upon constitutionally protected rights. Petitioners face a heavy burden in seeking to have the regulations invalidated as facially unconstitutional. . . . The fact that the regulations might operate unconstitutionally under some conceivable set of circumstances is insufficient to render them wholly invalid. Id. at 183 (internal quotation marks, alterations, and citation omitted). In contrast, NEA v. Finley, 524 U.S. 569 (1998), which also involved a facial First Amendment challenge to an exercise of Congress's spending power, articulated a somewhat more liberal test of facial validity than Rust, explaining that "[t]o prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech." Id. at 580. Against this background, it is unclear to us whether, to succeed in facially invalidating CIPA on the grounds that it will "induce the States to engage in activities that would themselves be unconstitutional," Dole, 483 U.S. at 210, plaintiffs must show that it is impossible for public libraries to comply with CIPA's conditions without violating the First Amendment, or rather simply that CIPA will effectively restrict library patrons' access to substantial amounts of constitutionally protected speech, therefore causing many libraries to violate the First Amendment. However, we need not resolve this issue. Rather, we may assume without deciding, for purposes of this case, that a facial challenge to CIPA requires plaintiffs to show that any public library that complies with CIPA's conditions will necessarily violate the First Amendment and, as explained in detail below, we believe that CIPA's constitutionality fails even under this more restrictive test of facial validity urged on us by the government. Because of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies' own blocking criteria. We turn first to the governing legal principles to be applied to the facts in order to determine whether the First Amendment permits a library to use the filtering technology mandated by CIPA. 3. Level of Scrutiny Applicable to Content-based Restrictions on Internet Access in Public Libraries In analyzing the constitutionality of a public library's use of Internet filtering software, we must first identify the appropriate level of scrutiny to apply to this restriction on patrons' access to speech. While plaintiffs argue that a public library's use of such filters is subject to strict scrutiny, the government maintains that the applicable standard is rational basis review. If strict scrutiny applies, the government must show that the challenged restriction on speech is narrowly tailored to promote a compelling government interest and that no less restrictive alternative would further that interest. United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000). In contrast, under rational basis review, the challenged restriction need only be reasonable; the government interest that the restriction serves need not be compelling; the restriction need not be narrowly tailored to serve that interest; and the restriction "need not be the most reasonable or the only reasonable limitation." Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 808 (1985). Software filters, by definition, block access to speech on the basis of its content, and content-based restrictions on speech are generally subject to strict scrutiny. See Playboy, 529 U.S. at 813 ("[A] content-based speech restriction . . . can stand only if it satisfies strict scrutiny."). Strict scrutiny does not necessarily apply to content-based restrictions on speech, however, where the restrictions apply only to speech on government property, such as public libraries. "[I]t is . . . well settled that the government need not permit all forms of speech on property that it owns and controls." Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). We perforce turn to a discussion of public forum doctrine. 1. Overview of Public Forum Doctrine The government's power to restrict speech on its own property is not unlimited. Rather, under public forum doctrine, the extent to which the First Amendment permits the government to restrict speech on its own property depends on the character of the forum that the government has created. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). Thus, the First Amendment affords greater deference to restrictions on speech in those areas considered less amenable to free expression, such as military bases, see Greer v. Spock, 424 U.S. 828 (1976), jail grounds, see Adderley v. Florida, 385 U.S. 39 (1966), or public airport terminals, see Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), than to restrictions on speech in state universities, see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), or streets, sidewalks and public parks, see Frisby v. Schultz, 487 U.S. 474 (1988); Hague v. CIO, 307 U.S. 496 (1939). The Supreme Court has identified three types of fora for purposes of identifying the level of First Amendment scrutiny applicable to content-based restrictions on speech on government property: traditional public fora, designated public fora, and nonpublic fora. Traditional public fora include sidewalks, squares, and public parks: [S]treets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. Hague, 307 U.S. at 515. "In these quintessential public forums, . . . [f]or the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 45 (1983); see also Int'l Soc'y for Krishna Consciousness, 505 U.S. at 678 ("[R]egulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny."); Frisby, 487 U.S. at 480 ("[W]e have repeatedly referred to public streets as the archetype of a traditional public forum."). A second category of fora, known as designated (or limited) public fora, "consists of public property which the State has opened for use by the public as a place for expressive activity." Perry, 460 U.S. at 46. Whereas any content-based restriction on the use of traditional public fora is subject to strict scrutiny, the state is generally permitted, as long as it does not discriminate on the basis of viewpoint, to limit a designated public forum to certain speakers or the discussion of certain subjects. See Perry, 460 U.S. at 45 n.7. Once it has defined the limits of a designated public forum, however, "[r]egulation of such property is subject to the same limitations as that governing a traditional public forum." Int'l Soc'y for Krishna Consciousness, 505 U.S. at 678. Examples of designated fora include university meeting facilities, see Widmar v. Vincent, 454 U.S. 263 (1981), school board meetings, see City of Madison Joint School Dist. v. Wisc. Employment Relations Comm'n, 429 U.S. 167 (1976), and municipal theaters, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). The third category, nonpublic fora, consists of all remaining public property. "Limitations on expressive activity conducted on this last category of property must survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view." Int'l Soc'y for Krishna Consciousness, 505 U.S. at 679. 2. Contours of the Relevant Forum: the Library's Collection as a Whole or the Provision of Internet Access? To apply public forum doctrine to this case, we must first determine whether the appropriate forum for analysis is the library's collection as a whole, which includes both print and electronic resources, or the library's provision of Internet access. Where a plaintiff seeks limited access, for expressive purposes, to governmentally controlled property, the Supreme Court has held that the relevant forum is defined not by the physical limits of the government property at issue, but rather by the specific access that the plaintiff seeks: Although . . . as an initial matter a speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns, forum analysis is not completed merely by identifying the government property at issue. Rather, in defining the forum we have focused on the access sought by the speaker. When speakers seek general access to public property, the forum encompasses that property. In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 801 (1985). Thus, in Cornelius, where the plaintiffs were legal defense and political advocacy groups seeking to participate in the Combined Federal Campaign charity drive, the Court held that the relevant forum, for First Amendment purposes, was not the entire federal workplace, but rather the charity drive itself. Id. at 801. Similarly, in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), which addressed a union's right to access a public school's internal mail system and teachers' mailboxes, the Court identified the relevant forum as the school's mail system, not the public school as a whole. In Widmar v. Vincent, 454 U.S. 263 (1981), in which a student group challenged a state university's restrictions on use of its meeting facilities, the Court identified the relevant forum as the meeting facilities to which the plaintiffs sought access, not the state university generally. And in Christ's Bride Ministries, Inc. v. SEPTA, 148 F.3d 242 (3d Cir. 1998), involving a First Amendment challenge to the removal of advertisements from subway and commuter rail stations, the Third Circuit noted that the forum at issue was not the rail and subway stations as a whole, but rather the advertising space within the stations. Id. at 248. Although these cases dealt with the problem of identifying the relevant forum where speakers are claiming a right of access, we believe that the same approach applies to identifying the relevant forum where the parties seeking access are listeners or readers. In this case, the patron plaintiffs are not asserting a First Amendment right to compel public libraries to acquire certain books or magazines for their print collections. Nor are the Web site plaintiffs claiming a First Amendment right to compel public libraries to carry print materials that they publish. Rather, the right at issue in this case is the specific right of library patrons to access information on the Internet, and the specific right of Web publishers to provide library patrons with information via the Internet. Thus, the relevant forum for analysis is not the library's entire collection, which includes both print and electronic media, such as the Internet, but rather the specific forum created when the library provides its patrons with Internet access. Although a public library's provision of Internet access does not resemble the conventional notion of a forum as a well- defined physical space, the same First Amendment standards apply. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830 (1995) (holding that a state university's student activities fund "is a forum more in a metaphysical than a spatial or geographic sense, but the same principles are applicable"); see also Cornelius, 473 U.S. at 801 (identifying the Combined Federal Campaign charity drive as the relevant unit of analysis for application of public forum doctrine). 3. Content-based Restrictions in Designated Public Fora Unlike nonpublic fora such as airport terminals, see Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), military bases, see Greer v. Spock, 424 U.S. 828 (1976), jail grounds, see Adderley v. Florida, 385 U.S. 39 (1966), the federal workplace, see Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 805 (1985), and public transit vehicles, see Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the purpose of a public library in general, and the provision of Internet access within a public library in particular, is "for use by the public . . . for expressive activity," Perry Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 45 (1983), namely, the dissemination and receipt by the public of a wide range of information. We are satisfied that when the government provides Internet access in a public library, it has created a designated public forum. See Mainstream Loudoun v. Bd. of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552, 563 (E.D. Va. 1998); cf. Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992) (holding that a public library is a limited public forum). Relying on those cases that have recognized that government has leeway, under the First Amendment, to limit use of a designated public forum to narrowly specified purposes, and that content-based restrictions on speech that are consistent with those purposes are subject only to rational basis review, the government argues for application of rational basis review to public libraries' decisions about which content to make available to their patrons via the Internet. See Rosenberger, 515 U.S. 819, 829 (1995) ("The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics."); Perry, 460 U.S. at 46 n.7 (1983) ("A public forum may be created for a limited purpose such as use by certain groups . . . or for the discussion of certain subjects."). In particular, the government forcefully argues that a public library's decision to limit the content of its digital offerings on the Internet should be subject to no stricter scrutiny than its decisions about what content to make available to its patrons through the library's print collection. According to the government, just as a public library may choose to acquire books about gardening but not golf, without having to show that this content-based restriction on patrons' access to speech is narrowly tailored to further a compelling state interest, so may a public library make content-based decisions about which speech to make available on the Internet, without having to show that such a restriction satisfies strict scrutiny. Plaintiffs respond that the government's ability to restrict the content of speech in a designated public forum by restricting the purpose of the designated public forum that it creates is not unlimited. Cf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001) ("Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise."). As Justice Kennedy has explained: If Government has a freer hand to draw content-based distinctions in limiting a forum than in excluding someone from it, the First Amendment would be a dead letter in designated public forums; every exclusion could be recast as a limitation. . . . The power to limit or redefine forums for a specific legitimate purpose does not allow the government to exclude certain speech or speakers from them for any reason at all. Denver Area Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 801 (1996) (Kennedy, J., concurring in the judgment). Although we agree with plaintiffs that the First Amendment imposes some limits on the state's ability to adopt content-based restrictions in defining the purpose of a public forum, precisely what those limits are is unclear, and presents a difficult problem in First Amendment jurisprudence. The Supreme Court's "cases have not yet determined . . . that government's decision to dedicate a public forum to one type of content or another is necessarily subject to the highest level of scrutiny. Must a local government, for example, show a compelling state interest if it builds a band shell in the park and dedicates it solely to classical music (but not to jazz)? The answer is not obvious." Denver, 518 U.S. at 750 (plurality opinion); see also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 572-73 (1975) (Rehnquist, J., dissenting) ("May an opera house limit its productions to operas, or must it also show rock musicals? May a municipal theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis?"). We believe, however, that certain principles emerge from the Supreme Court's jurisprudence on this question. In particular, and perhaps somewhat counterintuitively, the more narrow the range of speech that the government chooses to subsidize (whether directly, through government grants or other funding, or indirectly, through the creation of a public forum) the more deference the First Amendment accords the government in drawing content-based distinctions. At one extreme lies the government's decision to fund a particular message that the government seeks to disseminate. In this context, content-based restrictions on the speech that government chooses to subsidize are clearly subject to at most rational basis review, and even viewpoint discrimination is permissible. For example, "[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, 22 U.S.C. Sec. 4411(b), it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism." Rust v. Sullivan, 500 U.S. 173, 194 (1991); see also Velazquez, 531 U.S. at 541 ("[V]iewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or in instances, like Rust, in which the government used private speakers to transmit information pertaining to its own program.") (internal quotation marks and citation omitted). Although not strictly controlling, the Supreme Court's unconstitutional conditions cases, such as Rust and Velazquez, are instructive for purposes of analyzing content-based restrictions on the use of public fora. This is because the limitations that government places on the use of a public forum can be conceptualized as conditions that the government attaches to the receipt of a benefit that it offers, namely, the use of government property. Public forum cases thus resemble those unconstitutional conditions cases involving First Amendment challenges to the conditions that the state places on the receipt of a government benefit. See Velazquez, 531 U.S. at 544 ("As this suit involves a subsidy, limited forum cases . . . may not be controlling in the strict sense, yet they do provide some instruction."). Even when the government does not fund the dissemination of a particular government message, the First Amendment generally permits government, subject to the constraints of viewpoint neutrality, to create public institutions such as art museums and state universities, dedicated to facilitating the dissemination of private speech that the government believes to have particular merit. Thus, in NEA v. Finley, 524 U.S. 569 (1998), the Court upheld the use of content-based restrictions in a federal program awarding grants to artists on the basis of, inter alia, artistic excellence. "The very assumption of the NEA is that grants will be awarded according to the artistic worth of competing applications, and absolute neutrality is simply inconceivable." Id. at 585 (internal quotation marks and citation omitted). Similarly, as Justice Stevens explained in his concurring opinion in Widmar v. Vincent, 454 U.S. 263 (1981), the First Amendment does not necessarily subject to strict scrutiny a state university's use of content-based means of allocating scarce resources, including limited public fora such as its meeting facilities: Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time – one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet – the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other. Id. at 278 (Stevens, J., concurring in the judgment). The more broadly the government facilitates private speech, however, the less deference the First Amendment accords to the government's content-based restrictions on the speech that it facilitates. Thus, where the government creates a designated public forum to facilitate private speech representing a diverse range of viewpoints, the government's decision selectively to single out particular viewpoints for exclusion is subject to strict scrutiny. Compare Rosenberger, 515 U.S. at 834 (applying heightened First Amendment scrutiny to viewpoint-based restrictions on the use of a limited public forum where the government "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers"), with Finley, 524 U.S. at 586 ("In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately encourage a diversity of views from private speakers.") (internal quotation marks and citation omitted). Similarly, although the government may create a designated public forum limited to speech on a particular topic, if the government opens the forum to members of the general public to speak on that topic while selectively singling out for exclusion particular speakers on the basis of the content of their speech, that restriction is subject to strict scrutiny. For instance, in City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976), the Court held that where a school board opens its meetings for public participation, it may not, consistent with the First Amendment, prohibit teachers other than union representatives from speaking on the subject of pending collective-bargaining negotiations. See id. at 175 (noting that the state "has opened a forum for direct citizen involvement"); see also Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 680 (1998) (distinguishing, for purposes of determining the appropriate level of First Amendment scrutiny, a televised debate in which a public broadcasting station exercises editorial discretion in selecting participating candidates from a debate that has "an open-microphone format"). Finally, content-based restrictions on speech in a designated public forum are most clearly subject to strict scrutiny when the government opens a forum for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics, while selectively excluding particular speech whose content it disfavors. Thus, in Conrad, the Court held that a local government violated the First Amendment when it denied a group seeking to perform the rock musical "Hair" access to a general-purpose municipal theater open for the public at large to use for performances. See also Denver, 518 U.S. at 802 (Kennedy, J., concurring in the judgment) (suggesting that strict scrutiny would not apply to a local government's decision to "build[] a band shell in the park and dedicate[] it solely to classical music (but not jazz)," but would apply to "the Government's creation of a band shell in which all types of music might be performed except for rap music"). Similarly, in FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984), the Court subjected to heightened scrutiny a federal program that funded a wide range of public broadcasting stations that disseminated speech on a wide range of subjects, where the federal program singled out for exclusion speech whose content amounted to editorializing. As the Court later explained: In FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) the Court was instructed by its understanding of the dynamics of the broadcast industry in holding that prohibitions against editorializing by public radio networks were an impermissible restriction, even though the Government enacted the restriction to control the use of public funds. The First Amendment forbade the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium. Velazquez, 531 U.S. at 543. In sum, the more widely the state opens a forum for members of the public to speak on a variety of subjects and viewpoints, the more vulnerable is the state's decision selectively to exclude certain speech on the basis of its disfavored content, as such exclusions distort the marketplace of ideas that the state has created in establishing the forum. Cf. Velazquez, 531 U.S. at 544 ("Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases . . . ."). Thus, we believe that where the state designates a forum for expressive activity and opens the forum for speech by the public at large on a wide range of topics, strict scrutiny applies to restrictions that single out for exclusion from the forum particular speech whose content is disfavored. "Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles." United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812 (2000); see also Denver, 518 U.S. at 782 (Kennedy, J., concurring in the judgment) (noting the flaw in a law that "singles out one sort of speech for vulnerability to private censorship in a context where content-based discrimination is not otherwise permitted"). Compare Forbes, 523 U.S. at 679 (holding that the state does not create a public forum when it "allows selective access for individual speakers rather than general access for a class of speakers") (emphasis added), with Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972) ("Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.") (emphasis added). We note further that to the extent that the government creates a public forum expressly designed to facilitate the dissemination of private speech, opens the forum to any member of the public to speak on any virtually any topic, and then selectively targets certain speech for exclusion based on its content, the government is singling out speech in a manner that resembles the discriminatory taxes on the press that the Supreme Court subjected to heightened First Amendment scrutiny in Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987), and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), which we explain in the margin. 4. Reasons for Applying Strict Scrutiny 1. Selective Exclusion From a "Vast Democratic Forum" Applying these principles to public libraries, we agree with the government that generally the First Amendment subjects libraries' content-based decisions about which print materials to acquire for their collections to only rational review. In making these decisions, public libraries are generally free to adopt collection development criteria that reflect not simply patrons' demand for certain material, but also the library's evaluation of the material's quality. See Bernard W. Bell, Filth, Filtering, and the First Amendment: Ruminations on Public Libraries' Use of Internet Filtering Software, 53 Fed. Comm. L.J. 191, 225 (2001) ("Librarians should have the discretion to decide that the library is committed to intellectual inquiry, not to the satisfaction of the full range of human desires."). Thus, a public library's decision to use the last $100 of its budget to purchase the complete works of Shakespeare even though more of its patrons would prefer the library to use the same amount to purchase the complete works of John Grisham, is not, in our view, subject to strict scrutiny. Cf. NEA v. Finley, 524 U.S. 569 (1998) (subjecting only to rational basis review the government's decision to award NEA grants on the basis of, inter alia, artistic excellence). Nonetheless, we disagree with the government's argument that public libraries' use of Internet filters is no different, for First Amendment purposes, from the editorial discretion that they exercise when they choose to acquire certain books on the basis of librarians' evaluation of their quality. The central difference, in our view, is that by providing patrons with even filtered Internet access, the library permits patrons to receive speech on a virtually unlimited number of topics, from a virtually unlimited number of speakers, without attempting to restrict patrons' access to speech that the library, in the exercise of its professional judgment, determines to be particularly valuable. Cf. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 834 (1995) (applying strict scrutiny to viewpoint-based restrictions where the state "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers"). See generally supra Section IV.C. In those cases upholding the government's exercise of editorial discretion in selecting certain speech for subsidization or inclusion in a state-created forum, the state actor exercising the editorial discretion has at least reviewed the content of the speech that the forum facilitates. Thus, in Finley the NEA examined the content of those works of art that it chose to subsidize, and in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), the public broadcaster specifically reviewed and approved each speaker permitted to participate in the debate. See id. at 673 ("In the case of television broadcasting, . . . broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations."); Finley, 524 U.S. at 586 ("The NEA's mandate is to make esthetic judgments, and the inherently content-based 'excellence' threshold for NEA support sets it apart from the subsidy at issue in Rosenberger – which was available to all student organizations that were 'related to the educational purpose of the University . . . .'") (quoting Rosenberger, 515 U.S. at 824); see also Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 804 (1985) ("The Government's consistent policy has been to limit participation in the [Combined Federal Campaign] to 'appropriate' voluntary agencies and to require agencies seeking admission to obtain permission from federal and local Campaign officials. . . . [T]here is no evidence suggesting that the granting of the requisite permission is merely ministerial."). The essence of editorial discretion requires the exercise of professional judgment in examining the content that the government singles out as speech of particular value. This exercise of editorial discretion is evident in a library's decision to acquire certain books for its collection. As the government's experts in library science testified, in selecting a book for a library's collection, librarians evaluate the book's quality by reference to a variety of criteria such as its accuracy, the title's niche in relation to the rest of the collection, the authority of the author, the publisher, the work's presentation, and how it compares with other material available in the same genre or on the same subject. Thus, the content of every book that a library acquires has been reviewed by the library's collection development staff or someone to whom they have delegated the task, and has been judged to meet the criteria that form the basis for the library's collection development policy. Although some public libraries use "approval plans" to delegate the collection development to third-party vendors which provide the library with recommended materials that the library is then free to retain or return to the vendor, the same principle nonetheless attains. In contrast, in providing patrons with even filtered Internet access, a public library invites patrons to access speech whose content has never been reviewed and recommended as particularly valuable by either a librarian or a third party to whom the library has delegated collection development decisions. Although several of the government's librarian witnesses who testified at trial purport to apply the same standards that govern the library's acquisition of print materials to the library's provision of Internet access to patrons, when public libraries provide their patrons with Internet access, they intentionally open their doors to vast amounts of speech that clearly lacks sufficient quality to ever be considered for the library's print collection. Unless a library allows access to only those sites that have been preselected as having particular value, a method that, as noted above, was tried and rejected by the Westerville Ohio Public Library, see supra at 46-47, even a library that uses software filters has opened its Internet collection "for indiscriminate use by the general public." Perry Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 47 (1983). "[M]ost Internet forums – including chat rooms, newsgroups, mail exploders, and the Web – are open to all comers." Reno v. ACLU, 521 U.S. 844, 880 (1997). The fundamental difference between a library's print collection and its provision of Internet access is illustrated by comparing the extent to which the library opens its print collection to members of the public to speak on a given topic and the extent to which it opens its Internet terminals to members of the public to speak on a given topic. When a public library chooses to carry books on a selected topic, e.g. chemistry, it does not open its print collection to any member of the public who wishes to write about chemistry. Rather, out of the myriad of books that have ever been written on chemistry, each book on chemistry that the library carries has been reviewed and selected because the person reviewing the book, in the exercise of his or her professional judgment, has deemed its content to be particularly valuable. In contrast, when a public library provides Internet access, even filtered Internet access, it has created a forum open to any member of the public who writes about chemistry on the Internet, regardless of how unscientific the author's methods or of how patently false the author's conclusions are, regardless of the author's reputation or grammar, and regardless of the reviews of the scientific community. Notwithstanding protestations in CIPA's legislative history to the contrary, members of the general public do define the content that public libraries make available to their patrons through the Internet. Any member of the public with Internet access could, through the free Web hosting services available on the Internet, tonight jot down a few musings on any subject under the sun, and tomorrow those musings would become part of public libraries' online offerings and be available to any library patron who seeks them out. In providing its patrons with Internet access, a public library creates a forum for the facilitation of speech, almost none of which either the library's collection development staff or even the filtering companies have ever reviewed. Although filtering companies review a portion of the Web in classifying particular sites, the portion of the Web that the filtering companies actually review is quite small in relation to the Web as a whole. The filtering companies' harvesting process, described in our findings of fact, is intended to identify only a small fraction of Web sites for the filtering companies to review. Put simply, the state cannot be said to be exercising editorial discretion permitted under the First Amendment when it indiscriminately facilitates private speech whose content it makes no effort to examine. Cf. Bell, supra, at 226 ("[C]ourts should take a much more jaundiced view of library policies that block Internet access to a very limited array of subjects than they take of library policies that reserve Internet terminals for very limited use."). While the First Amendment permits the government to exercise editorial discretion in singling out particularly favored speech for subsidization or inclusion in a state-created forum, we believe that where the state provides access to a "vast democratic forum[]," Reno, 521 U.S. at 868, open to any member of the public to speak on subjects "as diverse as human thought," id. at 870, and then selectively excludes from the forum certain speech on the basis of its content, such exclusions are subject to strict scrutiny. These exclusions risk fundamentally distorting the unique marketplace of ideas that public libraries create when they open their collections, via the Internet, to the speech of millions of individuals around the world on a virtually limitless number of subjects. A public library's content-based restrictions on patrons' Internet access thus resemble the content-based restrictions on speech subsidized by the government, whether through direct funding or through the creation of a designated public forum, that the Supreme Court has subjected to strict scrutiny, as discussed above in Section IV.C. Although the government may subsidize a particular message representing the government's viewpoint without having to satisfy strict scrutiny, see Rust v. Sullivan, 500 U.S. 173 (1991), strict scrutiny applies to restrictions that selectively exclude particular viewpoints from a public forum designed to facilitate a wide range of viewpoints, see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). Similarly, although the state's exercise of editorial discretion in selecting particular speakers for participation in a state-sponsored forum is subject to rational basis review, see Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998), selective exclusions of particular speakers from a forum otherwise open to any member of the public to speak are subject to strict scrutiny, see City of Madison Joint School Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167 (1976). And while the government may, subject only to rational basis review, make content-based decisions in selecting works of artistic excellence to subsidize, see NEA v. Finley, 524 U.S. 569 (1998), the Supreme Court has applied heightened scrutiny where the government opens a general-purpose municipal theater for use by the public, but selectively excludes disfavored content, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), where the government facilitates the speech of public broadcasters on a virtually limitless number of topics, but prohibits editorializing, see FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984), and where the government funds a wide range of legal services but restricts funding recipients from challenging welfare laws, see Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001). Similarly, where a public library opens a forum to an unlimited number of speakers around the world to speak on an unlimited number of topics, strict scrutiny applies to the library's selective exclusions of particular speech whose content the library disfavors. 2. Analogy to Traditional Public Fora Application of strict scrutiny to public libraries' use of software filters, in our view, finds further support in the extent to which public libraries' provision of Internet access promotes First Amendment values in an analogous manner to traditional public fora, such as sidewalks and parks, in which content-based restrictions on speech are always subject to strict scrutiny. The public library, by its very nature, is "designed for freewheeling inquiry." Bd. of Education v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting). As such, the library is a "mighty resource in the free marketplace of ideas," Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th Cir. 1976), and represents a "quintessential locus of the receipt of information." Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 547 (N.D. Tex. 2000) ("The right to receive information is vigorously enforced in the context of a public library . . . ."); cf. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 681 (1992) ("[A] traditional public forum is property that has as 'a principal purpose . . . the free exchange of ideas.'") (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985)). We acknowledge that the provision of Internet access in a public library does not enjoy the historical pedigree of streets, sidewalks, and parks as a vehicle of free expression. Nonetheless, we believe that it shares many of the characteristics of these traditional public fora that uniquely promote First Amendment values and accordingly warrant application of strict scrutiny to any content-based restriction on speech in these fora. Regulation of speech in streets, sidewalks, and parks is subject to the highest scrutiny not simply by virtue of history and tradition, but also because the speech-facilitating character of sidewalks and parks makes them distinctly deserving of First Amendment protection. Many of these same speech-promoting features of the traditional public forum appear in public libraries' provision of Internet access. First, public libraries, like sidewalks and parks, are generally open to any member of the public who wishes to receive the speech that these fora facilitate, subject only to narrow limitations. See Kreimer, 958 F.2d at 1260 (noting that a public library does not retain unfettered discretion "to choose whom it will permit to enter the Library," but upholding the library's right to exclude patrons who harass patrons or whose offensive personal hygiene precludes the library's use by other patrons). Moreover, like traditional public fora, public libraries are funded by taxpayers and therefore do not charge members of the public each time they use the forum. The only direct cost to library patrons who wish to receive information, whether via the Internet or the library's print collection, is the time spent reading. By providing Internet access to millions of Americans to whom such access would otherwise be unavailable, public libraries play a critical role in bridging the digital divide separating those with access to new information technologies from those that lack access. See generally National Telecommunications and Information Administration, U.S. Department of Commerce, Falling Through the Net: Defining the Digital Divide (1999), available at http://www.ntia.doc.gov/ntiahome/fttn99/contents.html. Cf. Velazquez, 531 U.S. at 546 (invalidating a content-based restriction on the speech of federally funded legal services corporations and noting that given the financial hardship of legal services corporations' clients, "[t]he restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel"). Public libraries that provide Internet access greatly expand the educational opportunities for millions of Americans who, as explained in the margin, would otherwise be deprived of the benefits of this new medium. Just as important as the openness of a forum to listeners is its openness to speakers. Parks and sidewalks are paradigmatic loci of First Amendment values in large part because they permit speakers to communicate with a wide audience at low cost. One can address members of the public in a park for little more than the cost of a soapbox, and one can distribute handbills on the sidewalk for little more than the cost of a pen, paper, and some photocopies. See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) ("Door to door distribution of circulars is essential to the poorly financed causes of little people."); Laurence H. Tribe, American Constitutional Law Sec. 12-24 at 987 (2d ed. 1988) ("The 'public forum' doctrine holds that restrictions on speech should be subject to higher scrutiny when, all other things being equal, that speech occurs in areas playing a vital role in communication – such as in those places historically associated with first amendment activities, such as streets, sidewalks, and parks – especially because of how indispensable communication in these places is to people who lack access to more elaborate (and more costly) channels."); Daniel A. Farber, Free Speech without Romance: Public Choice and the First Amendment, 105 Harv. L. Rev. 554, 574 n.86 (1991) (noting that traditional public fora "are often the only place where less affluent groups and individuals can effectively express their message"); Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 30 ("[T]he parade, the picket, the leaflet, the sound truck, have been the media of communication exploited by those with little access to the more genteel means of communication."). Similarly, given the existence of message boards and free Web hosting services, a speaker can, via the Internet, address the public, including patrons of public libraries, for little more than the cost of Internet access. As the Supreme Court explained in Reno v. ACLU, 521 U.S. 844 (1997), "the Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds." Id. at 870. Although the cost of a home computer and Internet access considerably exceeds the cost of a soapbox or a few hundred photocopies, speakers wishing to avail themselves of the Internet may gain free access in schools, workplaces, or the public library. As Professor Lessig has explained: The "press" in 1791 was not the New York Times or the Wall Street Journal. It did not comprise large organizations of private interests, with millions of readers associated with each organization. Rather, the press then was much like the Internet today. The cost of a printing press was low, the readership was slight, and anyone (within reason) could become a publisher – and in fact an extraordinary number did. When the Constitution speaks of the rights of the "press," the architecture it has in mind is the architecture of the Internet. Lawrence Lessig, Code 183 (1999). While public libraries' provision of Internet access shares many of the speech-promoting qualities of traditional public fora, it also facilitates speech in ways that traditional public fora cannot. In particular, whereas the architecture of real space limits the audience of a pamphleteer or soapbox orator to people within the speaker's immediate vicinity, the Internet renders the geography of speaker and listener irrelevant: Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. Reno, 521 U.S. at 870 . By providing patrons with Internet access, public libraries in effect open their doors to an unlimited number of potential speakers around the world, inviting the speech of any member of the public who wishes to communicate with library patrons via the Internet. Due to the low costs for speakers and the irrelevance of geography, the volume of speech available to library patrons on the Internet is enormous and far exceeds the volume of speech available to audiences in traditional public fora. See id. at 868 (referring to "the vast democratic forums of the Internet"). Indeed, as noted in our findings of fact, the Web is estimated to contain over one billion pages, and is said to be growing at a rate of over 1.5 million pages per day. See id. at 885 (noting "[t]he dramatic expansion of this new marketplace of ideas"). This staggering volume of content on the Internet "is as diverse as human thought," id. at 870, and "is thus comparable, from the reader's viewpoint, to . . . a vast library including millions of readily available and indexed publications," id. at 853. As a result of the Internet's unique speech-facilitating qualities, "it is hard to find an aspiring social movement, new or old, of left, right, or center, without a website, a bulletin board, and an email list." Kreimer, supra n.27, at 125. "[T]he growth of the Internet has been and continues to be phenomenal." Reno, 521 U.S. at 885. This extraordinary growth of the Internet illustrates the extent to which the Internet promotes First Amendment values in the same way that the historical use of traditional public fora for speaking, handbilling, and protesting testifies to their effectiveness as vehicles for free speech. Cf. Martin, 319 U.S. at 145 ("The widespread use of this method of communication [door-to-door distribution of leaflets] by many groups espousing various causes attests its major importance."); Schneider v. State, 308 U.S. 147, 164 (1939) ("[P]amphlets have proved most effective instruments in the dissemination of opinion."). The provision of Internet access in public libraries, in addition to sharing the speech-enhancing qualities of fora such as streets, sidewalks, and parks, also supplies many of the speech-enhancing properties of the postal service, which is open to the public at large as both speakers and recipients of information, and provides a relatively low-cost means of disseminating information to a geographically dispersed audience. See Lamont v. Postmaster Gen., 381 U.S. 301 (1965) (invalidating a content-based prior restraint on the use of the mails); see also Blount v. Rizzi, 400 U.S. 410 (1971) (same). Indeed, the Supreme Court's description of the postal system in Lamont seems equally apt as a description of the Internet today: "the postal system . . . is now the main artery through which the business, social, and personal affairs of the people are conducted . . . ." 381 U.S. at 305 n.3. In short, public libraries, by providing their patrons with access to the Internet, have created a public forum that provides any member of the public free access to information from millions of speakers around the world. The unique speech-enhancing character of Internet use in public libraries derives from the openness of the public library to any member of the public seeking to receive information, and the openness of the Internet to any member of the public who wishes to speak. In particular, speakers on the Internet enjoy low barriers to entry and the ability to reach a mass audience, unhindered by the constraints of geography. Moreover, just as the development of new media "presents unique problems, which inform our assessment of the interests at stake, and which may justify restrictions that would be unacceptable in other contexts," United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000), the development of new media, such as the Internet, also presents unique possibilities for promoting First Amendment values, which also inform our assessment of the interests at stake, and which we believe, in the context of the provision of Internet access in public libraries, justify the application of heightened scrutiny to content-based restrictions that might be subject to only rational review in other contexts, such as the development of the library's print collection. Cf. id. at 818 ("Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us."). A faithful translation of First Amendment values from the context of traditional public fora such as sidewalks and parks to the distinctly non-traditional public forum of Internet access in public libraries requires, in our view, that content-based restrictions on Internet access in public libraries be subject to the same exacting standards of First Amendment scrutiny as content-based restrictions on speech in traditional public fora such as sidewalks, town squares, and parks: The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding. . . . Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means. . . . The model for speech that the framers embraced was the model of the Internet – distributed, noncentralized, fully free and diverse. Lessig, Code, at 167, 185. Indeed, "[m]inds are not changed in streets and parks as they once were. To an increasing degree, the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media." Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 802-03 (1996) (Kennedy, J., concurring in the judgment). In providing patrons with even filtered Internet access, a public library is not exercising editorial discretion in selecting only speech of particular quality for inclusion in its collection, as it may do when it decides to acquire print materials. By providing its patrons with Internet access, public libraries create a forum in which any member of the public may receive speech from anyone around the world who wishes to disseminate information over the Internet. Within this "vast democratic forum[]," Reno, 521 U.S. at 868, which facilitates speech that is "as diverse as human thought," id. at 870, software filters single out for exclusion particular speech on the basis of its disfavored content. We hold that these content- based restrictions on patrons' access to speech are subject to strict scrutiny. 4. Application of Strict Scrutiny Having concluded that strict scrutiny applies to public libraries' content-based restrictions on patrons' access to speech on the Internet, we must next determine whether a public library's use of Internet software filters can survive strict scrutiny. To survive strict scrutiny, a restriction on speech "must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative." United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000) (citation omitted); see also Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 787 (3d Cir. 1990) (holding that a content-based burden on speech is permissible "only if [the government] shows that the restriction serves a compelling interest and that there are no less restrictive alternatives"). The application of strict scrutiny to a public library's use of filtering products thus requires three distinct inquiries. First, we must identify those compelling government interests that the use of filtering software promotes. It is then necessary to analyze whether the use of software filters is narrowly tailored to further those interests. Finally, we must determine whether less restrictive alternatives exist that would promote the state interest. 1. State Interests We begin by identifying those legitimate state interests that a public library's use of software filters promotes. 1. Preventing the Dissemination of Obscenity, Child Pornography, and Material Harmful to Minors On its face, CIPA is clearly intended to prevent public libraries' Internet terminals from being used to disseminate to library patrons visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. See CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A) & (B)), Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B) & (C)) (requiring any library that receives E-rate discounts to certify that it is enforcing "a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions" that are "obscene" or "child pornography," and, when the computers are in use by minors, also protects against access to visual depictions that are "harmful to minors"). The government's interest in preventing the dissemination of obscenity, child pornography, or, in the case of minors, material harmful to minors, is well-established. Speech that is obscene, under the legal definition of obscenity set forth in the margin, is unprotected under the First Amendment, and accordingly the state has a compelling interest in preventing its distribution. See Miller v. California, 413 U.S. 15, 18 (1973) ("This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material."); Stanley v. Georgia, 394 U.S. 557, 563 (1969) ("[T]he First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity."); Roth v. United States, 354 U.S. 476, 485 (1957) ("We hold that obscenity is not within the area of constitutionally protected speech of press."). The First Amendment also permits the state to prohibit the distribution to minors of material that, while not obscene with respect to adults, is obscene with respect to minors. See Ginsberg v. New York, 390 U.S. 629, 637 (1968) (holding that it is constitutionally permissible "to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see"). Proscribing the distribution of such material to minors is constitutionally justified by the government's well-recognized interest in safeguarding minors' well-being. See Reno v. ACLU, 521 U.S. 844, 869-70 (1997) ("[T]here is a compelling interest in protecting the physical and psychological well-being of minors which extend[s] to shielding them from indecent messages that are not obscene by adult standards . . . .") (internal quotation marks and citation omitted); New York v. Ferber, 458 U.S. 747, 756-57 (1982) ("It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling.") (internal quotation marks and citation omitted); Ginsberg, 390 U.S. at 640 ("The State . . . has an independent interest in the well-being of its youth."). The government's compelling interest in protecting the well- being of its youth justifies laws that criminalize not only the distribution to minors of material that is harmful to minors, but also the possession and distribution of child pornography. See Osborne v. Ohio, 495 U.S. 103, 111 (1990) (holding that a state "may constitutionally proscribe the possession and viewing of child pornography"); Ferber, 458 U.S. at 757, 763 (noting that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance," and holding that "child pornography [is] a category of material outside the protection of the First Amendment"). Thus, a public library's use of software filters survives strict scrutiny if it is narrowly tailored to further the state's well-recognized interest in preventing the dissemination of obscenity and child pornography, and in preventing minors from being exposed to material harmful to their well-being. 2. Protecting the Unwilling Viewer Several of the libraries that use filters assert that filters serve the libraries' interest in preventing patrons from being unwillingly exposed to sexually explicit speech that the patrons find offensive. Nearly every library proffered by either the government or the plaintiffs received complaints, in varying degrees of frequency, from library patrons who saw other patrons accessing sexually explicit material on the library's Internet terminals. In general, First Amendment jurisprudence is reluctant to recognize a legitimate state interest in protecting the unwilling viewer from speech that is constitutionally protected. "Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities simply by averting our eyes." Playboy, 529 U.S. at 813 (2000) (internal quotation marks and citation omitted); see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975) ("[W]hen the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power."). For example, in Cohen v. California, 403 U.S. 15 (1971), the Supreme Court reversed defendant's conviction for wearing, in a municipal courthouse, a jacket bearing the inscription "Fuck the Draft." The Court noted that "much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest." Id. at 21. This justification for suppressing speech failed, however, because it "would effectively empower a majority to silence dissidents simply as a matter of personal predilections." Id. The Court concluded that "[t]hose in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes." Id. Similarly, in Erznoznik, the Court invalidated on its face a municipal ordinance prohibiting drive-in movie theaters from showing films containing nudity if they were visible from a public street or place. The city's "primary argument [was] that it may protect its citizens against unwilling exposure to materials that may be offensive." 422 U.S. at 208. The Court soundly rejected this interest in shielding the unwilling viewer: The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, we are inescapably captive audiences for many purposes. Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, absent . . . narrow circumstances . . . the burden normally falls upon the viewer to avoid further bombardment of his sensibilities simply by averting his eyes. 422 U.S. at 210-11 (internal quotation marks and citation omitted). The state's interest in protecting unwilling viewers from exposure to patently offensive material is accounted for, to some degree, by obscenity doctrine, which originated in part to permit the state to shield the unwilling viewer. "The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the sensibilities of unwilling recipients from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws." Ferber, 458 U.S. at 756 (internal quotation marks and citation omitted); see also Miller, 413 U.S. at 18-19 ("This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.") (citation omitted). To the extent that speech has serious literary, artistic, political, or scientific value, and therefore is not obscene under the Miller test of obscenity, the state's interest in shielding unwilling viewers from such speech is tenuous. Nonetheless, the Court has recognized that in certain limited circumstances, the state has a legitimate interest in protecting the public from unwilling exposure to speech that is not obscene. This interest has justified restrictions on speech "when the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure." Erznoznik, 422 U.S. at 209 (citations omitted). Thus, in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court relied on the state's interest in shielding viewers' sensibilities to uphold a prohibition against profanity in radio broadcasts: Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. Id. at 748 (citation omitted); accord Frisby v. Schultz, 487 U.S. 474, 485 (1988) ("Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different."); see also Lehman v. City of Shaker Heights, 418 U.S. 298, 302 (1974) (plurality opinion) (upholding a content-based restriction on the sale of advertising space in public transit vehicles and noting that "[t]he streetcar audience is a captive audience"). Although neither the Supreme Court nor the Third Circuit has recognized a compelling state interest in shielding the sensibilities of unwilling viewers, beyond laws intended to preserve the privacy of individuals' homes or to protect captive audiences, we do not read the case law as categorically foreclosing recognition, in the public library setting, of the state's interest in protecting unwilling viewers. See Pacifica, 438 U.S. at 749 n.27 ("Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away.") (emphasis added). Under certain circumstances, therefore a public library might have a compelling interest in protecting library patrons and staff from unwilling exposure to sexually explicit speech that, although not obscene, is patently offensive. 3. Preventing Unlawful or Inappropriate Conduct Several of the librarians proffered by the government testified that unfiltered Internet access had led to occurrences of criminal or otherwise inappropriate conduct by library patrons, such as public masturbation, and harassment of library staff and patrons, sometimes rising to the level of physical assault. As in the case with patron complaints, however, the government adduced no quantitative data comparing the frequency of criminal or otherwise inappropriate patron conduct before the library's use of filters and after the library's use of filters. The sporadic anecdotal accounts of the government's library witnesses were countered by anecdotal accounts by the plaintiffs' library witnesses, that incidents of offensive patron behavior in public libraries have long predated the advent of Internet access. Aside from a public library's interest in preventing patrons from using the library's Internet terminals to receive obscenity or child pornography, which constitutes criminal conduct, we are constrained to reject any compelling state interest in regulating patrons' conduct as a justification for content-based restrictions on patrons' Internet access. "[T]he Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct." Ashcroft, 122 S. Ct. at 1403. First Amendment jurisprudence makes clear that speech may not be restricted on the ground that restricting speech will reduce crime or other undesirable behavior that the speech is thought to cause, subject to only a narrow exception for speech that "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). "The mere tendency of speech to encourage unlawful acts is insufficient reason for banning it." Ashcroft, 122 S. Ct. at 1403. Outside of the narrow "incitement" exception, the appropriate method of deterring unlawful or otherwise undesirable behavior is not to suppress the speech that induces such behavior, but to attach sanctions to the behavior itself. "Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgement of the rights of free speech." Kingsley Int'l Pictures Corp. v. Regents of the Univ. of the State of New York, 360 U.S. 684, 689 (1959) (quoting Whitney v. Cal., 274 U.S. 357, 378 (1927) (Brandeis, J., concurring)); see also Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) ("The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it."). 4. Summary In sum, we reject a public library's interest in preventing unlawful or otherwise inappropriate patron conduct as a basis for restricting patrons' access to speech on the Internet. The proper method for a library to deter unlawful or inappropriate patron conduct, such as harassment or assault of other patrons, is to impose sanctions on such conduct, such as either removing the patron from the library, revoking the patron's library privileges, or, in the appropriate case, calling the police. We believe, however, that the state interests in preventing the dissemination of obscenity, child pornography, or in the case of minors, material harmful to minors, and in protecting library patrons from being unwillingly exposed to offensive, sexually explicit material, could all justify, for First Amendment purposes, a public library's use of Internet filters, provided that use of such filters is narrowly tailored to further those interests, and that no less restrictive means of promoting those interests exist. Accordingly, we turn to the narrow tailoring question. 2. Narrow Tailoring Having identified the relevant state interests that could justify content-based restrictions on public libraries' provision of Internet access, we must determine whether a public library's use of software filters is narrowly tailored to further those interests. "It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). "[M]anifest imprecision of [a] ban . . . reveals that its proscription is not sufficiently tailored to the harms it seeks to prevent to justify . . . substantial interference with . . . speech." FCC v. League of Women Voters of Cal., 468 U.S. 364, 392 (1984). The commercially available filters on which evidence was presented at trial all block many thousands of Web pages that are clearly not harmful to minors, and many thousands more pages that, while possibly harmful to minors, are neither obscene nor child pornography. See supra, Subsection II.E.7. Even the defendants' own expert, after analyzing filtering products' performance in public libraries, concluded that of the blocked Web pages to which library patrons sought access, between 6% and 15% contained no content that meets even the filtering products' own definitions of sexually explicit content, let alone the legal definitions of obscenity or child pornography, which none of the filtering companies that were studied use as the basis for their blocking decisions. Moreover, in light of the flaws in these studies, discussed in detail in our findings of fact above, these percentages significantly underestimate the amount of speech that filters erroneously block, and at best provide a rough lower bound on the filters' rates of overblocking. Given the substantial amount of constitutionally protected speech blocked by the filters studied, we conclude that use of such filters is not narrowly tailored with respect to the government's interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors. To be sure, the quantitative estimates of the rates of overblocking apply only to those four commercially available filters analyzed by plaintiffs' and defendants' expert witnesses. Nonetheless, given the inherent limitations in the current state of the art of automated classification systems, and the limits of human review in relation to the size, rate of growth, and rate of change of the Web, there is a tradeoff between underblocking and overblocking that is inherent in any filtering technology, as our findings of fact have demonstrated. We credit the testimony of plaintiffs' expert witness, Dr. Geoffrey Nunberg, that no software exists that can automatically distinguish visual depictions that are obscene, child pornography, or harmful to minors, from those that are not. Nor can software, through keyword analysis or more sophisticated techniques, consistently distinguish web pages that contain such content from web pages that do not. In light of the absence of any automated method of classifying Web pages, filtering companies are left with the Sisyphean task of using human review to identify, from among the approximately two billion web pages that exist, the 1.5 million new pages that are created daily, and the many thousands of pages whose content changes from day to day, those particular web pages to be blocked. To cope with the Web's extraordinary size, rate of growth, and rate of change, filtering companies that rely solely on human review to block access to material falling within their category definitions must use a variety of techniques that will necessarily introduce substantial amounts of overblocking. These techniques include blocking every page of a Web site that contains only some content falling within the filtering companies' category definitions, blocking every Web site that shares an IP-address with a Web site whose content falls within the category definitions, blocking "loophole sites," such as anonymizers, cache sites, and translation sites, and allocating staff resources to reviewing content of uncategorized pages rather than re-reviewing pages, domain names, or IP-addresses that have been already categorized to determine whether their content has changed. While a filtering company could choose not to use these techniques, due to the overblocking errors they introduce, if a filtering company does not use such techniques, its filter will be ineffective at blocking access to speech that falls within its category definitions. Thus, while it would be easy to design, for example, a filter that blocks only ten Web sites, all of which are either obscene, child pornography, or harmful to minors, and therefore completely avoids overblocking, such a filter clearly would not comply with CIPA, since it would fail to offer any meaningful protection against the hundreds of thousands of Web sites containing speech in these categories. As detailed in our findings of fact, any filter that blocks enough speech to protect against access to visual depictions that are obscene, child pornography, and harmful to minors, will necessarily overblock substantial amounts of speech that does not fall within these categories. This finding is supported by the government's failure to produce evidence of any filtering technology that avoids overblocking a substantial amount of protected speech. Where, as here, strict scrutiny applies to a content-based restriction on speech, the burden rests with the government to show that the restriction is narrowly tailored to serve a compelling government interest. See Playboy, 529 U.S. at 816 ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions."); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) ("Content-based regulations are presumptively invalid."). Thus, it is the government's burden, in this case, to show the existence of a filtering technology that both blocks enough speech to qualify as a technology protection measure, for purposes of CIPA, and avoids overblocking a substantial amount of constitutionally protected speech. Here, the government has failed to meet its burden. Indeed, as discussed in our findings of fact, every technology protection measure used by the government's library witnesses or analyzed by the government's expert witnesses blocks access to a substantial amount of speech that is constitutionally protected with respect to both adults and minors. In light of the credited testimony of Dr. Nunberg, and the inherent tradeoff between overblocking and underblocking, together with the government's failure to offer evidence of any technology protection measure that avoids overblocking, we conclude that any technology protection measure that blocks a sufficient amount of speech to comply with CIPA's requirement that it "protect[] against access through such computers to visual depictions that are – (I) obscene; (II) child pornography; or (III) harmful to minors" will necessarily block substantial amounts of speech that does not fall within these categories. CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A)). Hence, any public library's use of a software filter required by CIPA will fail to be narrowly tailored to the government's compelling interest in preventing the dissemination, through Internet terminals in public libraries, of visual depictions that are obscene, child pornography, or harmful to minors. Where, as here, strict scrutiny applies, the government may not justify restrictions on constitutionally protected speech on the ground that such restrictions are necessary in order for the government effectively to suppress the dissemination of constitutionally unprotected speech, such as obscenity and child pornography. "The argument . . . that protected speech may be banned as a means to ban unprotected speech . . . . turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech." Ashcroft, 122 S. Ct. at 1404. This rule reflects the judgment that "[t]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted . . . ." Broadrick v. Oklahoma, 413 U.S. at 612. Thus, in Ashcroft, the Supreme Court rejected the government's argument that a statute criminalizing the distribution of constitutionally protected "virtual" child pornography, produced through computer imaging technology without the use of real children, was necessary to further the state's interest in prosecuting the dissemination of constitutionally unprotected child pornography produced using real children, since "the possibility of producing images by using computer imaging makes it very difficult for [the government] to prosecute those who produce pornography using real children." Ashcroft, 122 S. Ct. at 1404; see also Stanley, 394 U.S. at 567-58 (holding that individuals have a First Amendment right to possess obscene material, even though the existence of this right makes it more difficult for the states to further their legitimate interest in prosecuting the distribution of obscenity). By the same token, even if the use of filters is effective in preventing patrons from receiving constitutionally unprotected speech, the government's interest in preventing the dissemination of such speech cannot justify the use of the technology protection measures mandated by CIPA, which necessarily block substantial amounts of constitutionally protected speech. CIPA thus resembles the Communications Decency Act, which the Supreme Court facially invalidated in Reno v. ACLU, 521 U.S. 844 (1997). Although on its face, the CDA simply restricted the distribution to minors of speech that was constitutionally unprotected with respect to minors, as a practical matter, given Web sites' difficulties in identifying the ages of Internet users, the CDA effectively prohibited the distribution to adults of material that was constitutionally protected with respect to adults. Similarly, although on its face, CIPA, like the CDA, requires the suppression of only constitutionally unprotected speech, it is impossible as a practical matter, given the state of the art of filtering technology, for a public library to comply with CIPA without also blocking significant amounts of constitutionally protected speech. We therefore hold that a library's use of a technology protection measure required by CIPA is not narrowly tailored to the government's legitimate interest in preventing the dissemination of visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. For the same reason that a public library's use of software filters is not narrowly tailored to further the library's interest in preventing its computers from being used to disseminate visual depictions that are obscene, child pornography, and harmful to minors, a public library's use of software filters is not narrowly tailored to further the library's interest in protecting patrons from being unwillingly exposed to offensive, sexually explicit material. As discussed in our findings of fact, the filters required by CIPA block substantial numbers of Web sites that even the most puritanical public library patron would not find offensive, such as http://federo.com, a Web site that promotes federalism in Uganda, which N2H2 blocked as "Adults Only, Pornography," and http://www.vvm.com/~bond/home.htm, a site for aspiring dentists, which was blocked by Cyberpatrol as "Adult/Sexually Explicit." We list many more such examples in our findings of fact, see supra, and find that such erroneously blocked sites number in at least the thousands. Although we have found large amounts of overblocking, even if only a small percentage of sites blocked are erroneously blocked, either with respect to the state's interest in preventing adults from viewing material that is obscene or child pornography and in preventing minors from viewing material that is harmful to minors, or with respect to the state's interest in preventing library patrons generally from being unwillingly exposed to offensive, sexually explicit material, this imprecision is fatal under the First Amendment. Cf. Reno, 521 U.S. at 874 ("[T]he CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech."); League of Women Voters, 468 U.S. at 398 ("[E]ven if some of the hazards at which [the challenged provision] was aimed are sufficiently substantial, the restriction is not crafted with sufficient precision to remedy those dangers that may exist to justify the significant abridgement of speech worked by the provision's broad ban . . . ."). While the First Amendment does not demand perfection when the government restricts speech in order to advance a compelling interest, the substantial amounts of erroneous blocking inherent in the technology protection measures mandated by CIPA are more than simply de minimis instances of human error. "The line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. Error in marking that line exacts an extraordinary cost." Playboy, 529 U.S. at 817 (internal quotation marks and citation omitted). Indeed, "precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (internal quotation marks and citation omitted); see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963) ("The separation of legitimate from illegitimate speech calls for sensitive tools.") (internal quotation marks and citation omitted). Where the government draws content-based restrictions on speech in order to advance a compelling government interest, the First Amendment demands the precision of a scalpel, not a sledgehammer. We believe that a public library's use of the technology protection measures mandated by CIPA is not narrowly tailored to further the governmental interests at stake. Although the strength of different libraries' interests in blocking certain forms of speech may vary from library to library, depending on the frequency and severity of problems experienced by each particular library, we conclude, based on our findings of fact, that any public library's use of a filtering product mandated by CIPA will necessarily fail to be narrowly tailored to address the library's legitimate interests. Because it is impossible for a public library to comply with CIPA without blocking substantial amounts of speech whose suppression serves no legitimate state interest, we therefore hold that CIPA is facially invalid, even under the more stringent standard of facial invalidity urged on us by the government, which would require upholding CIPA if it is possible for just a single library to comply with CIPA's conditions without violating the First Amendment. See supra Part III. 3. Less Restrictive Alternatives The constitutional infirmity of a public library's use of software filters is evidenced not only by the absence of narrow tailoring, but also by the existence of less restrictive alternatives that further the government's legitimate interests. See Playboy, 529 U.S. at 813 ("If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative."); Sable, 492 U.S. at 126 ("The Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest."). As is the case with the narrow tailoring requirement, the government bears the burden of proof in showing the ineffectiveness of less restrictive alternatives. "When a plausible, less restrictive alternative is offered to a content- based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals." Playboy, 529 U.S. at 816; see also Reno, 521 U.S. at 879 ("The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective . . . ."); Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 787 (3d Cir. 1990) ("We focus . . . on the more difficult question whether the Commonwealth has borne its heavy burden of demonstrating that the compelling state interest could not be served by restrictions that are less intrusive on protected forms of expression.") (internal quotation marks and citation omitted). We find that there are plausible, less restrictive alternatives to the use of software filters that would serve the government's interest in preventing the dissemination of obscenity and child pornography to library patrons. In particular, public libraries can adopt Internet use policies that make clear to patrons that the library's Internet terminals may not be used to access illegal content. Libraries can ensure that their patrons are aware of such policies by posting them in prominent places in the library, requiring patrons to sign forms agreeing to comply with the policy before the library issues library cards to patrons, and by presenting patrons, when they log on to one of the library's Internet terminals, with a screen that requires the user to agree to comply with the library's policy before allowing the user access to the Internet. Libraries can detect violations of their Internet use policies either through direct observation or through review of the library's Internet use logs. In some cases, library staff or patrons may directly observe a patron accessing obscenity and child pornography. Libraries' Internet use logs, however, also provide libraries with a means of detecting violations of their Internet use policies. These logs, which can be kept regardless whether a library uses filtering software, record the URL of every Web page accessed by patrons. Although ordinarily the logs do not link particular URLs with particular patrons, it is possible, using access logs, to identify the patron who viewed the Web page corresponding to a particular URL, if library staff discover in the access logs the URL of a Web page containing obscenity or child pornography. For example, David Biek, Director of Tacoma Public Library's main branch, testified that in the course of scanning Internet use logs he has found what looked like attempts to access child pornography, notwithstanding the fact that Tacoma uses Websense filtering software. In two cases, he communicated his findings to law enforcement and turned over the logs to law enforcement in response to a subpoena. Once a violation of a library's Internet use policy is detected through the methods described above, a library may either issue the patron a warning, revoke the patron's Internet privileges, or notify law enforcement, if the library believes that the patron violated either state obscenity laws or child pornography laws. Although these methods of detecting use of library computers to access illegal content are not perfect, and a library, out of respect for patrons' privacy, may choose not to adopt such policies, the government has failed to show that such methods are substantially less effective at preventing patrons from accessing obscenity and child pornography than software filters. As detailed in our findings of fact, the underblocking that results from the size, rate of change, and rate of growth of the Internet significantly impairs the software filters from preventing patrons from accessing obscenity and child pornography. Unless software filters are themselves perfectly effective at preventing patrons from accessing obscenity and child pornography, "[i]t is no response that [a less restrictive alternative] . . . may not go perfectly every time." Playboy, 529 U.S. at 824; cf. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 759 (1996) ("No provision . . . short of an absolute ban, can offer certain protection against assault by a determined child."). The government has not offered any data comparing the frequency with which obscenity and child pornography is accessed at libraries that enforce their Internet use policies through software filters with the frequency with which obscenity and child pornography is accessed at public libraries that enforce their Internet use policies through methods other than software filters. Although the government's library witnesses offered anecdotal accounts of a reduction in the use of library computers to access sexually explicit speech when filtering software was mandated, these anecdotal accounts are not a substitute for more robust analyses comparing the use of library computers to access child pornography and material that meets the legal definition of obscenity in libraries that use blocking software and in libraries that use alternative methods. Cf. Playboy, 529 U.S. at 822 ("[T]he Government must present more than anecdote and supposition."). We acknowledge that some library staff will be uncomfortable using the "tap-on-the-shoulder" method of enforcing the library's policy against using Internet terminals to access obscenity and child pornography. The Greenville County Library, for example, experienced high turnover among library staff when staff were required to enforce the library's Internet use policy through the tap-on-the-shoulder technique. Given filters' inevitable underblocking, however, even a library that uses filtering will have to resort to a tap-on-the-shoulder method of enforcement, where library staff observes a patron openly violating the library's Internet use policy, by, for example, accessing material that is obviously child pornography but that the filtering software failed to block. Moreover, a library employee's degree of comfort in using the tap-on-the-shoulder method will vary from employee to employee, and there is no evidence that it is impossible or prohibitively costly for public libraries to hire at least some employees who are comfortable enforcing the library's Internet use policy. We also acknowledge that use of a tap on the shoulder delegates to librarians substantial discretion to determine which Web sites a patron may view. Nonetheless, we do not believe that this putative "prior restraint" problem can be avoided through the use of software filters, for they effectively delegate to the filtering company the same unfettered discretion to determine which Web sites a patron may view. Moreover, as noted above, violations of a public library's Internet use policy may be detected not only by direct observation, but also by reviewing the library's Internet use logs after the fact, which alleviates the need for library staff to directly confront patrons while they are viewing obscenity or child pornography. Similar less restrictive alternatives exist for preventing minors from accessing material harmful to minors. First, libraries may use the tap-on-the-shoulder method when minors are observed using the Internet to access material that is harmful to minors. Requiring minors to use specific terminals, for example in a children's room, that are in direct view of library staff will increase the likelihood that library staff will detect minors' use of the Internet to access material harmful to minors. Alternatively, public libraries could require minors to use blocking software only if they are unaccompanied by a parent, or only if their parent consents in advance to their child's unfiltered use of the Internet. "A court should not assume that a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act." Playboy, 529 U.S. at 824. In contrast to the "harmful to minors" statute upheld in Ginsberg v. New York, 390 U.S. 629 (1968), which permitted parents to determine whether to provide their children with access to material otherwise prohibited by the statute, CIPA, like the Communications Decency Act, which the Court invalidated in Reno, contains no exception for parental consent: [W]e noted in Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." Under the CDA, by contrast, neither the parents' consent – nor even their participation – in the communication would avoid the application of the statute. Reno, 521 U.S. at 865 (citation omitted); see also Ginsberg, 390 U.S. at 639 ("It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944))). The Court in Playboy acknowledged that although a regime of permitting parents voluntarily to block cable channels containing sexually explicit programming might not be a completely effective alternative to the challenged law, which effectively required cable operators to transmit sexually explicit programming only during particular hours, the challenged law itself was not completely effective in serving the government's interest: There can be little doubt, of course, that under a voluntary blocking regime, even with adequate notice, some children will be exposed to signal bleed; and we need not discount the possibility that a graphic image could have a negative impact on a young child. It must be remembered, however, that children will be exposed to signal bleed under time channeling as well. . . . The record is silent as to the comparative effectiveness of the two alternatives. Playboy, 529 U.S. at 826. Similarly, in this case, the government has offered no evidence comparing the effectiveness of blocking software and alternative methods used by public libraries to protect children from material harmful to minors. Finally, there are other less restrictive alternatives to filtering software that further public libraries' interest in preventing patrons from unwillingly being exposed to patently offensive, sexually explicit content on the Internet. To the extent that public libraries are concerned with protecting patrons from accidentally encountering such material while using the Internet, public libraries can provide patrons with guidance in finding the material they want and avoiding unwanted material. Some public libraries also offer patrons the option of using filtering software, if they so desire. Cf. Rowan v. Post Office Dept., 397 U.S. 728 (1970) (upholding a federal statute permitting individuals to instruct the Postmaster General not to deliver advertisements that are "erotically arousing or sexually provocative"). With respect to protecting library patrons from sexually explicit content viewed by other patrons, public libraries have used a variety of less restrictive methods. One alternative is simply to segregate filtered from unfiltered terminals, and to place unfiltered terminals outside of patrons' sight-lines and areas of heavy traffic. Even the less restrictive alternative of allowing unfiltered access on only a single terminal, well out of the line of sight of other patrons, however, is not permitted under CIPA, which requires the use of a technology protection measure on every computer in the library. See CIPA Sec. 1721(b)(6)(C) (codified at 47 U.S.C. Sec. 254(h)(6)(C)), CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A)) (requiring a public library receiving E-rate discounts or LSTA grants to certify that it "has in place a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access . . . ." (emphasis added)); In re Federal-State Joint Board on Universal Service: Children's Internet Protection Act, CC Docket No. 96-45, Report and Order, FCC 01-120, 30 (Apr. 5, 2001) ("CIPA makes no distinction between computers used only by staff and those accessible to the public."). Alternatively, libraries can use privacy screens or recessed monitors to prevent patrons from unwillingly being exposed to material viewed by other patrons. We acknowledge that privacy screens and recessed monitors suffer from imperfections as alternatives to filtering. Both impose costs on the library, particularly recessed monitors, which, according to the government's library witnesses, are expensive. Moreover, some libraries have experienced problems with patrons attempting to remove the privacy screens. Privacy screens and recessed monitors also make it difficult for more than one person to work at the same terminal. These problems, however, are not insurmountable. While there is no doubt that privacy screens and recessed terminals impose additional costs on libraries, the government has failed to show that the cost of privacy screens or recessed terminals is substantially greater than the cost of filtering software and the resources needed to maintain such software. Nor has the government shown that the cost of these alternatives is so high as to make their use prohibitive. With respect to the problem of patrons removing privacy screens, we find, based on the successful use of privacy screens by the Fort Vancouver Regional Library and the Multnomah County Public Library, that it is possible for public libraries to prevent patrons from removing the screens. Although privacy screens may make it difficult for patrons to work at the same terminal side by side with other patrons or with library staff, a library could provide filtered access at terminals that lack privacy screens, when patrons wish to use a terminal with others. Alternatively, a library can reserve terminals outside of patrons' sight lines for groups of patrons who wish unfiltered access. We therefore conclude that the government has failed to show that the less restrictive alternatives discussed above are ineffective at furthering the government's interest either in preventing patrons from using library computers to access visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors, or in preventing library patrons from being unwillingly exposed to patently offensive, sexually explicit speech. 4. Do CIPA's Disabling Provisions Cure the Defect? The Government argues that even if the use of software filters mandated by CIPA blocks a substantial amount of speech whose suppression serves no legitimate state interest, and therefore fails strict scrutiny's narrow tailoring requirement, CIPA's disabling provisions cure any lack of narrow tailoring inherent in filtering technology. The disabling provision applicable to libraries receiving LSTA grants states that "[a]n administrator, supervisor, or other authority may disable a technology protection measure . . . to enable access for bona fide research or other lawful purposes." CIPA Sec. 1712(a)(2) (codified at 20 U.S.C. Sec. 9134(f)(3)). CIPA's disabling provision with respect to libraries receiving E-rate discounts similarly states that "[a]n administrator, supervisor, or other person authorized by the certifying authority . . . may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose." CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)). To determine whether the disabling provisions cure CIPA's lack of narrow tailoring, we must first determine, as a matter of statutory construction, under what circumstances the disabling provisions permit libraries to disable the software filters. It is unclear to us whether CIPA's disabling provisions permit libraries to disable the filters any time a patron wishes to access speech that is neither obscenity, child pornography, or in the case of a minor patron, material that is harmful to minors. Whether CIPA permits disabling in such instances depends on the meaning of the provisions' reference to "bona fide research or other lawful purpose." On the one hand, the language "to enable access for bona fide research or other lawful purpose" could be interpreted to mean "to enable access to all constitutionally protected material." As a textual matter, this reading of the disabling provisions is plausible. If a patron seeks access to speech that is constitutionally protected, then it is reasonable to conclude that the patron has a "lawful purpose," since the dissemination and receipt of constitutionally protected speech cannot be made unlawful. Moreover, since a narrower construction of the disabling provision creates more constitutional problems than a construction of the disabling provisions that permits access to all constitutionally protected speech, the broader interpretation is preferable. "[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is fairly possible, we are obligated to construe the statute to avoid such problems." INS v. St. Cyr, 121 S. Ct. 2271, 2279 (2001) (internal quotation marks and citations omitted). On the other hand, interpreting CIPA's disabling provisions to permit disabling for access to all constitutionally protected speech presents several problems. First, if "other lawful purpose" means "for the purpose of accessing constitutionally protected speech," then this reading renders superfluous CIPA's reference to "bona fide research," which clearly contemplates some purpose beyond simply accessing constitutionally protected speech. In general, "courts should disfavor interpretations of statutes that render language superfluous." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992). Furthermore, Congress is clearly capable of explicitly specifying categories of constitutionally unprotected speech, as it did when it drafted CIPA to require funding recipients to use technology protection measures that protect against visual depictions that are "obscene," "child pornography," or, in the case of minors, "harmful to minors." CIPA Sec. 1712(a) (codified at 20 U.S.C. Sec. 9134(f)(1)(A)(i)(I)-(III)); CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B)(i)(I)-(III)). If Congress intended CIPA's disabling provisions simply to permit libraries to disable the filters to allow access to speech falling outside of these categories, Congress could have drafted the disabling provisions with greater precision, expressly permitting libraries to disable the filters "to enable access for any material that is not obscene, child pornography, or in the case of minors, harmful to minors," rather than "to enable access for bona fide research or other lawful purposes," which is the language that Congress actually chose. At bottom, however, we need not definitively construe CIPA's disabling provisions, since it suffices in this case to assume without deciding that the disabling provisions permit libraries to allow a patron access to any speech that is constitutionally protected with respect to that patron. Although this interpretation raises fewer constitutional problems than a narrower interpretation, this interpretation of the disabling provisions nonetheless fails to cure CIPA's lack of narrow tailoring. Even if the disabling provisions permit public libraries to allow patrons to access speech that is constitutionally protected yet erroneously blocked by the software filters, the requirement that library patrons ask a state actor's permission to access disfavored content violates the First Amendment. The Supreme Court has made clear that content-based restrictions that require recipients to identify themselves before being granted access to disfavored speech are subject to no less scrutiny than outright bans on access to such speech. In Lamont v. Postmaster General, 381 U.S. 301 (1965), for example, the Court held that a federal statute requiring the Postmaster General to halt delivery of communist propaganda unless the addressee affirmatively requested the material violated the First Amendment: We rest on the narrow ground that the addressee in order to receive his mail must request in writing that it be delivered. This amounts in our judgment to an unconstitutional abridgment of the addressee's First Amendment rights. The addressee carries an affirmative obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions. Id. at 307. Similarly, in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996), the Court held unconstitutional a federal law requiring cable operators to allow access to patently offensive, sexually explicit programming only to those subscribers who requested access to the programming in advance and in writing. Id. at 732-33. As in Lamont, the Court in Denver reasoned that this content-based restriction on recipients' access to speech would have an impermissible chilling effect: "[T]he written notice requirement will . . . restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the 'patently offensive' channel." Id. at 754; see also Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 785 (3d Cir. 1990) (considering the constitutionality of a state law requiring telephone users who wish to listen to sexually explicit telephone messages to apply for an access code to receive such messages, and invalidating the law on the ground that "[a]n identification requirement exerts an inhibitory effect"). We believe that CIPA's disabling provisions suffer from the same flaws as the restrictions on speech in Lamont, Denver, and Fabulous Associates. By requiring library patrons affirmatively to request permission to access certain speech singled out on the basis of its content, CIPA will deter patrons from requesting that a library disable filters to allow the patron to access speech that is constitutionally protected, yet sensitive in nature. As we explain above, we find that library patrons will be reluctant and hence unlikely to ask permission to access, for example, erroneously blocked Web sites containing information about sexually transmitted diseases, sexual identity, certain medical conditions, and a variety of other topics. As discussed in our findings of fact, software filters block access to a wide range of constitutionally protected speech, including Web sites containing information that individuals are likely to wish to access anonymously. That library patrons will be deterred from asking permission to access Web sites containing certain kinds of content is evident as a matter of common sense as well as amply borne out by the trial record. Plaintiff Emmalyn Rood, who used the Internet at a public library to research information relating to her sexual identity, testified that she would have been unwilling as a young teen to ask a librarian to disable filtering software so that she could view materials concerning gay and lesbian issues. Similarly, plaintiff Mark Brown stated that he would have been too embarrassed to ask a librarian to disable filtering software if it had impeded his ability to research surgery options for his mother when she was treated for breast cancer. As explained in our findings of fact, see supra at Subsection II.D.2.b, the reluctance of patrons to request permission to access Web sites that were erroneously blocked is further established by the low number of patron unblocking requests, relative to the number of erroneously blocked Web sites, in those public libraries that use software filters and permit patrons to request access to incorrectly blocked Web sites. Cf. Fabulous Assocs., 896 F.2d at 786 ("On the record before us, there is more than enough evidence to support the district court's finding that access codes will chill the exercise of some users' right to hear protected communications."). To be sure, the government demonstrated that it is possible for libraries to permit patrons to request anonymously that a particular Web site be unblocked. In particular, the Tacoma Public Library has configured its computers to present patrons with the option, each time the software filter blocks their access to a Web page, of sending an anonymous email to library staff requesting that the page be unblocked. Moreover, a library staff member periodically scans logs of URLs blocked by the filters, in an effort to identify erroneously blocked sites, which the library will subsequently unblock. Although a public library's ability to permit anonymous unblocking requests addresses the deterrent effect of requiring patrons to identify themselves before gaining access to a particular Web site, we believe that it fails adequately to address the overblocking problem. In particular, even allowing anonymous requests for unblocking burdens patrons' access to speech, since such requests cannot immediately be acted on. Although the Tacoma Public Library, for example, attempts to review requests for unblocking within 24 hours, requests sometimes are not reviewed for several days. And delays are inevitable in libraries with branches that lack the staff necessary immediately to review patron unblocking requests. Because many Internet users "surf" the Web, visiting hundreds of Web sites in a single session and spending only a short period of time viewing many of the sites, the requirement that a patron take the time to affirmatively request access to a blocked Web site and then wait several days until the site is unblocked will, as a practical matter, impose a significant burden on library patrons' use of the Internet. Indeed, a patron's time spent requesting access to an erroneously blocked Web site and checking to determine whether access was eventually granted is likely to exceed the amount of time the patron would have actually spent viewing the site, had the site not been erroneously blocked. This delay is especially burdensome in view of many libraries' practice of limiting their patrons to a half hour or an hour of Internet use per day, given the scarcity of terminal time in relation to patron demand. The burden of requiring library patrons to ask permission to view Web sites whose content is disfavored resembles the burden that the Supreme Court found unacceptable in Denver, which invalidated a federal law requiring cable systems operators to block subscribers' access to channels containing sexually explicit programming, unless subscribers requested unblocking in advance. The Court reasoned that "[t]hese restrictions will prevent programmers from broadcasting to viewers who select programs day by day (or, through 'surfing,' minute by minute) . . . ." Denver, 518 U.S. at 754. Similarly, in Fabulous Associates, the Third Circuit explained that a law preventing adults from listening to sexually explicit phone messages unless they applied in advance for access to such messages would burden adults' receipt of constitutionally protected speech, given consumers' tendency to purchase such speech on impulse. See Fabulous Assocs., 896 F.2d at 785 (noting that officers of two companies that sell access to sexually explicit recorded phone messages "testified that it is usually 'impulse callers' who utilize these types of services, and that people will not call if they must apply for an access code"). In sum, in many cases, as we have noted above, library patrons who have been wrongly denied access to a Web site will decline to ask the library to disable the filters so that the patron can access the Web site. Moreover, even if patrons requested unblocking every time a site is erroneously blocked, and even if library staff granted every such request, a public library's use of blocking software would still impermissibly burden patrons' access to speech based on its content. The First Amendment jurisprudence of the Supreme Court and the Third Circuit makes clear that laws imposing content-based burdens on access to speech are no less offensive to the First Amendment than laws imposing content-based prohibitions on speech: It is of no moment that the statute does not impose a complete prohibition. The distinction between laws burdening and laws banning speech is but a matter of degree. The Government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans. . . . When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not afforded to the Government merely because the law can somehow be described as a burden rather than outright suppression. United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812, 826 (2000) (invalidating a federal law requiring cable television operators to limit the transmission of sexually explicit programming to the hours between 10:00 p.m. and 6:00 a.m.); see also Fabulous Assocs., 896 F.2d at 785 ("[H]ere . . . there is no outright prohibition of indecent communication. However, the First Amendment protects against government inhibition as well as prohibition.") (internal quotation marks and citation omitted). Even if CIPA's disabling provisions could be perfectly implemented by library staff every time patrons request access to an erroneously blocked Web site, we hold that the content-based burden that the library's use of software filters places on patrons' access to speech suffers from the same constitutional deficiencies as a complete ban on patrons' access to speech that was erroneously blocked by filters, since patrons will often be deterred from asking the library to unblock a site and patron requests cannot be immediately reviewed. We therefore hold that CIPA's disabling provisions fail to cure CIPA's lack of narrow tailoring. 5. Conclusion; Severability Based upon the foregoing discussion, we hold that a public library's content-based restriction on patrons' access to speech on the Internet is subject to strict scrutiny. Every item in a library's print collection has been selected because library staff, or a party to whom staff delegates the decision, deems the content to be particularly valuable. In contrast, the Internet, as a forum, is open to any member of the public to speak, and hence, even when a library provides filtered Internet access, it creates a public forum in which the vast majority of the speech has been reviewed by neither librarians nor filtering companies. Under public forum doctrine, where the state creates such a forum open to any member of the public to speak on an unlimited number of subjects, the state's decision selectively to exclude certain speech on the basis of its content, is subject to strict scrutiny, since such exclusions risk distorting the marketplace of ideas that the state has created. Application of strict scrutiny to public libraries' content- based restrictions on their patrons' access to the Internet finds further support in the analogy to traditional public fora, such as sidewalks, parks, and squares, in which content-based restrictions on speech are always subject to strict scrutiny. Like these traditional public fora, Internet access in public libraries uniquely promotes First Amendment values, by offering low barriers to entry to speakers and listeners. The content of speech on the Internet is as diverse as human thought, and the extent to which the Internet promotes First Amendment values is evident from the sheer breadth of speech that this new medium enables. To survive strict scrutiny, a public library's use of filtering software must be narrowly tailored to further a compelling state interest, and there must be no less restrictive alternative that could effectively further that interest. We find that, given the crudeness of filtering technology, any technology protection measure mandated by CIPA will necessarily block access to a substantial amount of speech whose suppression serves no legitimate government interest. This lack of narrow tailoring cannot be cured by CIPA's disabling provisions, because patrons will often be deterred from asking the library's permission to access an erroneously blocked Web page, and anonymous requests for unblocking cannot be acted on without delaying the patron's access to the blocked Web page, thereby impermissibly burdening access to speech on the basis of its content. Moreover, less restrictive alternatives exist to further a public library's legitimate interests in preventing its computers from being used to access obscenity, child pornography, or in the case of minors, material harmful to minors, and in preventing patrons from being unwillingly exposed to patently offensive, sexually explicit speech. Libraries may use a variety of means to monitor their patrons' use of the Internet and impose sanctions on patrons who violate the library's Internet use policy. To protect minors from material harmful to minors, libraries could grant minors unfiltered access only if accompanied by a parent, or upon parental consent, or could require minors to use unfiltered terminals in view of library staff. To prevent patrons from being unwillingly exposed to offensive, sexually explicit content, libraries can offer patrons the option of using blocking software, can place unfiltered terminals outside of patrons' sight lines, and can use privacy screens and recessed monitors. While none of these less restrictive alternatives are perfect, the government has failed to show that they are significantly less effective than filtering software, which itself fails to block access to large amounts of speech that fall within the categories sought to be blocked. In view of the severe limitations of filtering technology and the existence of these less restrictive alternatives, we conclude that it is not possible for a public library to comply with CIPA without blocking a very substantial amount of constitutionally protected speech, in violation of the First Amendment. Because this conclusion derives from the inherent limits of the filtering technology mandated by CIPA, it holds for any library that complies with CIPA's conditions. Hence, even under the stricter standard of facial invalidity proposed by the government, which would require us to uphold CIPA if only a single library can comply with CIPA's conditions without violating the First Amendment, we conclude that CIPA is facially invalid, since it will induce public libraries, as state actors, to violate the First Amendment. Because we hold that CIPA is invalid on these grounds, we need not reach the plaintiffs' alternative theories that CIPA is invalid as a prior restraint on speech and is unconstitutionally vague. Nor need we decide whether CIPA is invalid because it requires public libraries, as a condition on the receipt of federal funds, to relinquish their own First Amendment rights to provide the public with unfiltered Internet access, a theory that we nonetheless feel constrained to discuss (at length) in the margin. Having determined that CIPA violates the First Amendment, we would usually be required to determine whether CIPA is severable from the remainder of the statutes governing LSTA and E-rate funding. Neither party, however, has advanced the argument that CIPA is not severable from the remainder the Library Services and Technology Act and Communications Act of 1934 (the two statutes governing LSTA and E-rate funding, respectively), and at all events, we think that CIPA is severable. "The inquiry into whether a statute is severable is essentially an inquiry into legislative intent." Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999). "Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Buckley v. Valeo, 424 U.S. 1, 108 (1976) (internal quotation marks and citation omitted). There is no doubt that if we were to strike CIPA from the sections of the United States Code where it is currently codified, the remaining statutory sections, providing eligible public libraries with E- rate discounts and LSTA grants, would be fully operative as law. Indeed, the LSTA and E-rate programs existed prior to the enactment of CIPA in substantially the same form as they would exist were we to strike CIPA and leave the rest of the programs intact. The second question, whether Congress would in this case have chosen to repeal the LSTA and E-rate subsidy programs instead of continuing to fund them if it had known that CIPA's limitations on these programs were constitutionally invalid, is less clear. CIPA contains "separability" clauses that state that if any of its additions to the statutes governing the LSTA and E- rate programs are found to be unconstitutional, Congress intended to effectuate as much of CIPA's amendments as possible. We interpret these clauses to mean, for example, that if a court were to find that CIPA's requirements are unconstitutional with respect to adult patrons, but permissible with respect to minors, that Congress intended to have the court effectuate only the provisions with respect to minors. These separability clauses do not speak to the situation before us, however, where we have found that CIPA is facially unconstitutional in its entirety. Nevertheless, the government has not pointed to anything in the legislative history or elsewhere to suggest that Congress intended to discontinue funding under the LSTA and E-rate programs unless it could effectuate CIPA's restrictions on the funding. And Congress's decision, prior to CIPA's enactment, to subsidize Internet access through the LSTA and E-rate programs without such restrictions, counsels that we reach the opposite conclusion. At bottom, we think that it is unclear what Congress's intent was on this point, and in the absence of such information, we exercise a presumption in favor of severability. Regan v. Time, Inc., 468 U.S. 641, 653 (1984) ("[T]he presumption is in favor of severability."); cf. Velazquez v. Legal Servs. Corp., 164 F.3d 757, 773 (2d Cir. 1999), aff'd 531 U.S. 533 (2001) (applying a presumption in favor of severability in the face of uncertainty whether Congress intended to fund the Legal Services Corporation even if a restriction on the funding was to be declared invalid). For the foregoing reasons, we will enter a final judgment declaring Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection Act, codified at 20 U.S.C. Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6), respectively, to be facially invalid under the First Amendment and permanently enjoining the defendants from enforcing those provisions. ___________________________ Edward R. Becker, Chief Circuit Judge IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION INC., et al. : : v. : : UNITED STATES, et al. : NO. 01-1303 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MULTNOMAH COUNTY PUBLIC : CIVIL ACTION LIBRARY, et al. : : v. : : UNITED STATES OF AMERICA, et al. : NO. 01-1322 ORDER AND NOW, this day of May, 2002, based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that: (1) judgment is entered in favor of the plaintiffs and against the defendants, declaring that Sec.Sec. 1712(a)(2) and 1721(b) of the Children's Internet Protection Act, 20 U.S.C. Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6), are facially invalid under the First Amendment to the United States Constitution; and (2) the United States, Michael Powell, in his official capacity as Chairman of the Federal Communications Commission, the Federal Communications Commission, Beverly Sheppard, in her official capacity as Acting Director of the Institute of Museum and Library Services, and the Institute of Museum and Library Services are permanently enjoined from withholding federal funds from any public library for failure to comply with Sec.Sec. 1712(a)(2) and 1721(b) of the Children's Internet Protection Act, 20 U.S.C. Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6). BY THE COURT: __________________________________ Ch. Cir. J. __________________________________ J. __________________________________ J. FOOTNOTES Plaintiffs advance three other alternative, independent grounds for holding CIPA facially invalid. First, they submit that even if CIPA will not induce public libraries to violate the First Amendment, CIPA nonetheless imposes an unconstitutional condition on public libraries by requiring them to relinquish their own First Amendment rights to provide unfiltered Internet access as a condition on their receipt of federal funds. See infra n.36. Second, plaintiffs contend that CIPA is facially invalid because it effects an impermissible prior restraint on speech by granting filtering companies and library staff unfettered discretion to suppress speech before it has been received by library patrons and before it has been subject to a judicial determination that it is unprotected under the First Amendment. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). Finally, plaintiffs submit that CIPA is unconstitutionally vague. See City of Chicago v. Morales, 527 U.S. 41 (1999). CIPA defines "[m]inor" as "any individual who has not attained the age of 17 years." CIPA Sec. 1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(D)). CIPA further provides that "[o]bscene" has the meaning given in 18 U.S.C. Sec. 1460, and "child pornography" has the meaning given in 18 U.S.C. Sec. 2256. CIPA Sec. 1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(E) & (F)). CIPA defines material that is "harmful to minors" as: any picture, image, graphic image file, or other visual depiction that – (i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors. CIPA Sec. 1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(G)). CIPA prohibits federal interference in local determinations regarding what Internet content is appropriate for minors: A determination regarding what matter is appropriate for minors shall be made by the school board, local educational agency, library or other authority responsible for making the determination. No agency or instrumentality of the United States Government may – (A) establish criteria for making such determination; (B) review the determination made by the certifying [entity] . . . ; or (C) consider the criteria employed by the certifying [entity] . . . in the administration of subsection (h)(1)(B). CIPA Sec. 1732 (codified at 47 U.S.C. Sec. 254(l)(2)). The government challenges the standing of several of the plaintiffs and the ripeness of their claims. These include all of the Web site publishers and all of the individual library patrons. Notwithstanding these objections, we are confident that the "case or controversy" requirement of Article III, Sec. 2 of the Constitution is met by the existence of the plaintiff libraries that qualify for LSTA and E-rate funding and the library associations whose members qualify for such funding. These plaintiffs are faced with the impending choice of either certifying compliance with CIPA by July 1, 2002, or foregoing subsidies under the LSTA and E-rate programs, and therefore clearly have standing to challenge the constitutionality of the conditions to which they will be subject should they accept the subsidies. We also note that the presence of the Web site publishers and individual library patrons does not affect our legal analysis or disposition of the case. The OCLC database, a cooperative cataloging service established to facilitate interlibrary loan requests, includes 40 million catalog records from approximately 48,000 libraries of all types worldwide. Slightly more than 400 of the libraries in the OCLC database are listed as carrying Playboy in their collections, while only eight subscribe to Hustler. Fort Vancouver Regional Library, for example, combines the methods of strategically placing terminals in low traffic areas and using privacy screens. A section headed "Confidentiality and Privacy" on the library's home page states: "in order to protect the privacy of the user and the interests of other library patrons, the library will attempt to minimize unintentional viewing of the Internet. This will be done by use of privacy screens, and by judicious placement of the terminals and other appropriate means." Indeed, we granted leave for N2H2's counsel to intervene in order to object to testimony that would potentially reveal N2H2's trade secrets, which he did on several occasions. Geoffrey Nunberg (Ph.D., Linguistics, C.U.N.Y. 1977) is a researcher at the Center for the Study of Language and Information at Stanford University and a Consulting Full Professor of Linguistics at Stanford University. Until 2001, he was also a principal scientist at the Xerox Palo Alto Research Center. His research centers on automated classification systems, with a focus on classifying documents on the Web with respect to their linguistic properties. He has published his research in numerous professional journals, including peer- reviewed journals. A "cookie" is "a small file or part of a file stored on a World Wide Web user's computer, created and subsequently read by a Web site server, and containing personal information (as a user identification code, customized preferences, or a record of pages visited)." Merriam-Webster's Collegiate Dictionary, available at http://www.m-w.com/dictionary.htm. Hunter drew three different "samples" for his test. The first consisted of "50 randomly generated Web pages from the Webcrawler search engine." The "second sample of 50 Web pages was drawn from searches for the terms 'yahoo, warez, hotmail, sex, and MP3,' using the AltaVista.com search engine." And the "final sample of 100 Web sites was drawn from the sites of organizations who filed amicus briefs in support of the ACLU's challenges to the Community [sic] Decency Act (CDA) and COPA [the Children's Online Protection Act], and from Internet portals, political Web sites, feminist Web sites, hate speech sites, gambling sites, religious sites, gay pride/homosexual sites, alcohol, tobacco, and drug sites, pornography sites, new sites, violent game sites, safe sex sites, and pro and anti-abortion sites listed on the popular Web directory, Yahoo.com." Lemmons testified that he compiled the list of sexually explicit sites that should have been blocked by entering the terms "free adult sex, anal sex, oral sex, fisting lesbians, gay sex, interracial sex, big tits, blow job, shaved pussy, and bondage" into the Google search engine and then "surfing" through links from pages generated by the list of sites that the search engine returned. Using this method, he compiled a list of 197 sites that he determined should be blocked according to the filtering programs' category definitions. Lemmons also attempted to compile a list of "sensitive" Web sites that, although they should not have been blocked according to the filtering programs' category definitions, might have been mistakenly blocked. In order to do this, he used the same method of entering terms into the Google search engine and surfing through the results. He used the following terms to compile this list: "breast feeding, bondages, fetishes, ebony, gay issues, women's health, lesbian, homosexual, vagina, vaginal dryness, pain, anal cancer, teen issues, safe sex, penis, pregnant, interracial, sex education, penis enlargement, breast enlargement, . . . and shave." If separate patrons attempted to reach the same Web site, or one or more patrons attempted to access more than one page on a single Web site, Finnell counted these attempts as a single block. For example, the total number of blocked requests for Web pages at Tacoma Library during the logged period was 2,812, but Finnell counted this as only 895 blocks of unique Web sites. Of the 895 unique blocked sites, Finnell was unable to access 59, yielding 836 unique blocked sites for his team to review. The confidence intervals that Finnell calculated represent the range of percentages within which we can be 95% confident that the actual rate of overblocking in that particular library falls. We note that these confidence intervals assume that the time period for which the study assessed the library's internet logs constitutes a random and representative sample. To illustrate the two different methods, consider a random sample of 1010 web sites taken from a library's Internet use log, 10 of which fall within the category that a filter is intended to block (e.g., pornography), and suppose that the filter incorrectly failed to block 2 of the 10 sites that it should have blocked and did not block any sites that should not have been blocked. The standard method of quantifying the rate of underblocking would divide the number of sites in the sample that the filter incorrectly failed to block by the number of sites in the sample that the filter should have blocked, yielding an underblocking rate in this example of 20%. Finnell's study, however, calculated the underblocking rate by dividing the number of sites that the filter incorrectly failed to block by the total number of sites in the sample that were not blocked (whether correctly or incorrectly) yielding an underblocking rate in this example of only .2%. According to Biek, the sample size that he used yielded a 95% confidence interval of plus or minus 3.11%. Edelman is a Harvard University student and a systems administrator and multimedia specialist at the Berkman Center for Internet and Society at Harvard Law School. Despite Edelman's young age, he has been doing consulting work on Internet-related issues for nine years, since he was in junior high school. The archiving process in some cases took up to 48 hours from when the page was blocked. In October 2001, Edelman published the results of his initial testing on his Web site. In February and March 2002 he repeated his testing of the 6,777 URLs originally found to be blocked by at least one of the blocking products, in order to determine whether and to what extent the blocking product vendors had corrected the mistakes that he publicized. Of those URLs blocked by N2H2 in the October 2001 testing, 55.10% remained blocked when tested by Edelman in March 2002. Of those URLs blocked by Websense in the October 2001 testing, 76.28% remained blocked when tested by Edelman in February 2002. Of those URLs blocked by SurfControl's Cyber Patrol product, only 7.16% remained blocked, i.e., Cyber Patrol had unblocked almost 93% of the Web pages originally blocked. Because the results posted to his Web site were accessed by an employee of SurfControl (as evidenced by Edelman's records of who was accessing his Web site), we infer that Cyber Patrol had determined that 93% of all 6,777 pages, or 6,302 Web pages, were originally wrongly blocked by the product. Two other expert witnesses reviewed subsets of the list of Web pages that Edelman compiled. Dr. Michael T. Ryan, Director of the Rare Book and Manuscript Library and of the Center for Electronic Text and Image at the University of Pennsylvania, reviewed a list of 204 sites that Edelman forwarded to him in order to determine their appropriateness and usefulness in the library setting. Because the sites that Ryan reviewed were not selected randomly (i.e., they were chosen by plaintiffs' counsel), his study says little about the character of the set of 6,777 sites that Edelman compiled, or the total amount of overblocking by the four filtering programs that Edelman used. Anne Lipow, a practicing librarian for more than 30 years and the director of a library consulting firm, also reviewed the same list of 204 URLs from the set that Edelman had collected for their appropriateness for a library's collection. She categorized sites in four different levels according to their appropriateness for a public library's collection. Again, because these URLs were not selected randomly, Lipow's study is not particularly relevant to the total set that Edelman compiled, or to the total amount of overblocking by the four filtering programs that Edelman used. Although the methodology used to select the list of Web pages that was forwarded to Ryan and Lipow is problematic, Ryan's and Lipow's testimony established that many of the erroneously blocked sites that Edelman identified would be useful and appropriate sources of information for library patrons. All of the reviewers that Janes recruited had some relevant experience in library reference services or library collection development. Janes divided the reviewers into two groups, a group of 11 less experienced reviewers, and a group of five more experienced reviewers. Janes assigned the less experienced group to do a first-round review with the purpose of identifying the most obviously overblocked sites. The more experienced group was to review the remaining sites (i.e., those that were not obviously overblocked) and to make final decisions regarding these sites. In the first round, each person evaluated two sets of around 80 sites, and each group was evaluated by two different people. Each set of sites included the following instructions: Look carefully at each of the Web sites on the list. Please make a notation of any site that appears to meet any of the following criteria: a. Contains information similar to that already found in libraries, or b. Contains information a librarian would want in the library if s/he had unlimited funds to purchase information and unlimited shelf space, or c. You would be willing to refer a patron (of any age) to the site if the patron appeared at a reference desk seeking information about the subject of the site. For this last criterion, we recognize that you might not refer a young child to a Calculus site just because it would not be useful to that child, but you should ignore that factor. Informational sites, such as a Calculus site, should be noted. A site that is purely erotica should not be noted. Sites that received "Yes" votes from both reviewers were determined to be of sufficient interest in a library context and removed from further analysis. Sites receiving one or two "No" votes would go to the next round. In the first round, 243 sites received "Yes" votes from both reviewers, while 456 sites received one or more "No" votes or could not be found. These 456 sites were sent forward to the second round of judging. The instructions for the second-round reviewers were the same as those given to the first-round reviewers, except that in section c, the following sentence was added: "Sites that have a commercial purpose should be included here if they might be of use or interest to someone wishing to buy the product or service or doing research on commercial behavior on the Internet, much as most libraries include the Yellow Pages in their collections." The second round of review produced the following results: 60 sites could not be found (due to broken links, 404 "not found" errors, domain for sale messages, etc.), 231 sites were judged "Yes," and 165 judged "No." Although it was not proffered as evidence in this trial, (and hence we do not rely on it to inform our findings), we note that Youth, Pornography, and the Internet, a congressionally commissioned study by the National Research Council, a division of the National Academies of Science, see Pub. L. 105-314, Title X, Sec. 901, comes to a conclusion similar to the one that we reach regarding the effectiveness of Internet filters. The commission concludes that: All filters–those of today and for the foreseeable future–suffer (and will suffer) from some degree of overblocking (blocking content that should be allowed through) and some degree of underblocking (passing content that should not be allowed through). While the extent of overblocking and underblocking will vary with the product (and may improve over time), underblocking and overblocking result from numerous sources, including the variability in the perspectives that humans bring to the task of judging content. Youth, Pornography, and the Internet (Dick Thornburgh & Herbert S. Lin, eds., 2002), available at http://bob.nap.edu/html/youth_internet/. Because we find that the plaintiff public libraries are funded and controlled by state and local governments, they are state actors, subject to the constraints of the First Amendment, as incorporated by the Due Process Clause of the Fourteenth Amendment. The Supreme Court has recognized that the First Amendment encompasses not only the right to speak, but also the right to receive information. See Reno v. ACLU, 521 U.S. 844, 874 (1997) (invalidating a statute because it "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another"); Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("[The] right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society."); see also Bd. of Educ. v. Pico, 457 U.S. 853, 867-68 (1982) (plurality opinion) ("[T]he right to receive ideas follows ineluctably from the sender's First Amendment right to send them."). Indeed, if the First Amendment subjected to strict scrutiny the government's decision to dedicate a forum to speech whose content the government judges to be particularly valuable, many of our public institutions of culture would cease to exist in their current form: From here on out, the National Gallery in Washington, D.C., for example, would be required to display the art of all would-be artists on a first-come-first-served basis and would not be able to exercise any content control over its collection through evaluations of quality. Such a conclusion, of course, strikes us as absurd, but that is only because we feel that the government should be free to establish public cultural institutions guided by standards such as "quality." . . . While the First Amendment articulates a deep fear of government intervention in the marketplace of ideas (because of the risk of distortion), it also seems prepared to permit state-sponsored and -supported cultural institutions that exercise considerable control over which art to fund, which pictures to hang, and which courses to teach. That these choices necessarily involve judgments about favored and disfavored content – judgments clearly prohibited in the realm of censorship – is indisputable. Lee C. Bollinger, Public Institutions of Culture and the First Amendment: The New Frontier, 63 U. Cin. L. Rev. 1103, 1110-15 (1995). In both of these cases, the taxation scheme at issue effectively subsidized a vast range of publications, and singled out for penalty only a handful of speakers. See Arkansas Writers' Project, 460 U.S. at 228-29 (noting that "selective taxation of the press – . . . [by] targeting individual members of the press – poses a particular danger of abuse by the State" and explaining that "this case involves a more disturbing use of selective taxation than Minneapolis Star, because the basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content"); Minneapolis Star, 460 U.S. at 591 ("Minnesota's ink and paper tax violates the First Amendment not only because it singles out the press, but also because it targets a small group of newspapers."); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 660 (1994) ("The taxes invalidated in Minneapolis Star and Arkansas Writers' Project . . . targeted a small number of speakers, and thus threatened to distort the market for ideas.") (internal quotation marks and citation omitted). [P]atrons at a library do not have the right to make editorial decisions regarding the availability of certain material. It is the exclusive authority of the library to make affirmative decisions regarding what books, magazines, or other material is placed on library shelves, or otherwise made available to patrons. Libraries impose many restrictions on the use of their systems which demonstrate that the content of the library's offerings are not determined by the general public. S. Rep. No. 106-141, at 8-9 (1999). In distinguishing restrictions on public libraries' print collections from restrictions on the provision of Internet access, we do not rely on the rationale adopted in Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783 (E.D. Va. 1998). The Loudoun Court reasoned that a library's decision to block certain Web sites fundamentally differs from its decision to carry certain books but not others, in that unlike the money and shelf space consumed by the library's provision of print materials, "no appreciable expenditure of library time or resources is required to make a particular Internet publication available" once the library has acquired Internet access. Id. at 793-94. We disagree. Nearly every librarian who testified at trial stated that patrons' demand for Internet access exceeds the library's supply of Internet terminals. Under such circumstances, every time library patrons visit a Web site, they deny other patrons waiting to use the terminal access to other Web sites. Just as the scarcity of a library's budget and shelf space constrains a library's ability to provide its patrons with unrestricted access to print materials, the scarcity of time at Internet terminals constrains libraries' ability to provide patrons with unrestricted Internet access: The same budget concerns constraining the number of books that libraries can offer also limits the number of terminals, Internet accounts, and speed of access links that can be purchased, and thus the number of Web pages that patrons can view. This is clear to anyone who has been denied access to a Website because no terminal was unoccupied. Mark S. Nadel, The First Amendment's Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Libraries Exclude?, 78 Tex. L. Rev. 1117, 1128 (2000). We have found that approximately 14.3 million Americans access the Internet at a public library, and Internet access at public libraries is more often used by those with lower incomes than those with higher incomes. We found that about 20.3% of Internet users with household family income of less than $15,000 per year use public libraries for Internet access, and approximately 70% of libraries serving communities with poverty levels in excess of 40% receive E-rate discounts. The widespread availability of Internet access in public libraries is due, in part, to the availability of public funding, including state and local funding and the federal funding programs regulated by CIPA. We acknowledge that traditional public fora have characteristics that promote First Amendment values in ways that the provision of Internet access in public libraries does not. For example, a significant virtue of traditional public fora is their facilitation of face-to-face communication. "In a face-to- face encounter there is a greater opportunity for the exchange of ideas and the propagation of views . . . ." Cornelius, 473 U.S. at 798. Face-to-face exchanges also permit speakers to confront listeners who would otherwise not actively seek out the information that the speaker has to offer. In contrast, the Internet operates largely by providing individuals with only that information that they actively seek out. Although the Internet does not permit face-to-face communication in the same way that traditional public fora do, the Internet, as a medium of expression, is significantly more interactive than the broadcast media and the press. "[T]he Web makes it possible to establish two-way linkages with potential sympathizers. Unlike the unidirectional nature of most mass media, websites, bulletin boards, chatrooms, and email are potentially interactive." Seth F. Kreimer, Technologies of Protest: Insurgent Social Movements and the First Amendment in the Era of the Internet, 150 U. Pa. L. Rev. 119, 130 (2001). We acknowledge that the Internet's architecture is a human creation, and is therefore subject to change. The foregoing analysis of the unique speech-enhancing qualities of the Internet is limited to the Internet as currently constructed. Indeed, the characteristics of the Internet that we believe render it uniquely suited to promote First Amendment values may change as the Internet's architecture evolves. See Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J. 869, 888 (1996) ("Cyberspace has no permanent nature, save the nature of a place of unlimited plasticity. We don't find cyberspace, we build it."); see also Lawrence Lessig, The Death of Cyberspace, 57 Wash. & Lee L. Rev. 337 (2000). For First Amendment purposes, obscenity is "limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Miller v. California, 413 U.S. 15, 24 (1973). The Supreme Court in Reno explained: The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. As a practical matter, the Court also found that it would be prohibitively expensive for noncommercial – as well as some commercial – speakers who have Web sites to verify that their users are adults. These limitations must inevitably curtail a significant amount of adult communication on the Internet. Reno, 521 U.S. at 876-77 (citation omitted). To the extent that filtering software is effective in identifying URLs of Web pages containing obscenity or child pornography, libraries may use filtering software as a tool for identifying URLs in their Internet use logs that fall within these categories, without requiring patrons to use filtering software. As the study of Benjamin Edelman, an expert witness for the plaintiffs, demonstrates, it is possible to develop software that automatically tests a list of URLs, such as the list of URLs in a public library's Internet use logs, to determine whether any of those URLs would be blocked by a particular software filter as falling within a particular category. Alternatively, library staff can review the Internet use logs by hand, skimming the list of URLs for those that are likely to correspond to Web pages containing obscenity or child pornography, as is the practice of Tacoma's David Biek, who testified as a government witness. Under either method, public libraries can assure patrons of their privacy by tracing a given URL to a particular patron only after determining that the URL corresponds to a Web site whose content is illegal. We need not decide whether these less restrictive alternatives would themselves be constitutional. See Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 787 n.6 (3d Cir. 1990) ("We intimate no opinion on the constitutionality of [a less restrictive alternative to the challenged law] . . ., inasmuch as we consider merely [its] comparative restrictiveness . . . ."). Whereas the disabling provision applicable to libraries that receive LSTA grants permits disabling for both adults and minors, the disabling provision applicable to libraries that receive E-rate discounts permits disabling only during adult use. Thus, the disabling provision applicable to libraries receiving E-rate discounts cannot cure the constitutional infirmity of CIPA's requirement that libraries receiving E-rate discounts use software filters when their Internet terminals are in use by minors. Software filters sometimes incorrectly block access to, inter alia, Web sites dealing with issues relating to sexual identity. For example, the "Gay and Lesbian Chamber of Southern Nevada," http://www.lambdalv.com, "a forum for the business community to develop relationships within the Las Vegas lesbian, gay transsexual, and bisexual community" was blocked by N2H2 as "Adults Only, Pornography." The home page of the Lesbian and Gay Havurah of the Long Beach, California Jewish Community Center, http://www.compupix.com/gay/havurah.htm, was blocked by N2H2 as "Adults Only, Pornography," by Smartfilter as "Sex," and by Websense as "Sex." Among the types of Web sites that filters erroneously block are Web sites dealing with health issues, such as the Web site of the Willis-Knighton Cancer Center, a Shreveport, Louisiana cancer treatment facility, http://cancerftr.wkmc.com, which was blocked by Websense under the "Sex" category. Although in light of our disposition of the plaintiffs' Dole claim, we do not rule upon plaintiffs' contention that CIPA's conditioning of funds on the installation of filtering software violates the doctrine of unconstitutional conditions, we are mindful of the need to frame the disputed legal issues and to develop a full factual record for the certain appeal to the Supreme Court. Cf. Ashcroft v. ACLU, 2002 U.S. LEXIS 3421 (May 13, 2002) (remanding the case to the Court of Appeals to review the legal and factual bases on which the District Court granted plaintiffs' motion for a preliminary injunction after vacating its opinion that relied on a different ground from the ones used by the District Court). Although we do not decide the plaintiffs' unconstitutional conditions claim, we think that our findings of fact on public libraries, their use of the Internet, and the technological limitations of Internet filtering software, see supra Subsections II.D-E, and our framing of the legal issue here, would allow the Supreme Court to decide the issue if it deems it necessary to resolve this case. The doctrine of unconstitutional conditions "holds that the government 'may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech' even if he has no entitlement to that benefit." Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). In this case, the plaintiffs argue that CIPA imposes an unconstitutional condition on libraries who receive E-rate and LSTA subsidies by requiring them, as a condition on their receipt of federal funds, to surrender their First Amendment right to provide the public with access to constitutionally protected speech. Under this theory, even if it does not violate the First Amendment for a public library to use filtering software, it nonetheless violates the First Amendment for the federal government to require public libraries to use filters as a condition of the receipt of federal funds. The government contends that this case does not fall under the unconstitutional conditions framework because: (1) as state actors, the recipients of the funds (the public libraries) are not protected by the First Amendment, and therefore are not being asked to relinquish any constitutionally protected rights; and (2) although library patrons are undoubtedly protected by the First Amendment, they are not the funding recipients in this case, and libraries may not rely on their patrons' rights in order to state an unconstitutional conditions claim. It is an open question in this Circuit whether Congress may violate the First Amendment by restricting the speech of public entities, such as municipalities or public libraries. The only U.S. Supreme Court opinion to weigh in on the issue is a concurrence by Justice Stewart, joined by Chief Justice Burger and Justice Rehnquist, in which he opined that municipalities and other arms of the state are not protected by the First Amendment from governmental interference with their expression. See Colum. Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 139 (1973) (Stewart, J., concurring) ("The First Amendment protects the press from governmental interference; it confers no analogous protection on the Government."); see also id. at 139 n.7 ("The purpose of the First Amendment is to protect private expression and nothing in the guarantee precludes the government from controlling its own expression or that of its agents.") (quoting Thomas Emerson, The System of Freedom of Expression 700 (1970) (internal quotation marks omitted)). The Court has subsequently made it clear, however, that it considers it to be an open question whether municipalities acting in their capacity as employers have First Amendment rights, suggesting that the question whether public entities are ever protected by the First Amendment also remains open. See City of Madison Joint Sch. Dist. No. 8 v. Wisc. Employment Relations Comm'n, 429 U.S. 167, 175 n.7 (1976) ("We need not decide whether a municipal corporation as an employer has First Amendment rights to hear the views of its citizens and employees."). Several courts of appeals have cited Justice Stewart's concurrence in Columbia Broadcasting Systems and have, with little discussion or analysis, concluded that a "government . . . speaker is not itself protected by the first amendment." Warner Cable Communications, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990); see also NAACP v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990) ("[T]he First Amendment protects citizens' speech only from government regulation; government speech itself is not protected by the First Amendment."); Student Gov't Ass'n v. Bd. of Trustees of the Univ. of Mass., 868 F.2d 473, 481 (1st Cir. 1989) (concluding that the legal services organization run by a state university, "as a state entity, itself has no First Amendment rights"); Estiverne v. La. State Bar Ass'n, 863 F.2d 371, 379 (5th Cir. 1989) (noting that "the first amendment does not protect government speech"). We do not think that the question whether public libraries are protected by the First Amendment can be resolved as simply as these cases suggest. This difficulty is demonstrated by the reasoning of the Seventh Circuit in a case in which that court considered whether municipalities are protected by the First Amendment and noted that it is an open question that could plausibly be answered in the affirmative, yet declined to decide it: Only a few cases address the question whether municipalities or other state subdivisions or agencies have any First Amendment rights. . . . The question is an open one in this circuit, and we do not consider the answer completely free from doubt. For many purposes, for example diversity jurisdiction and Fourteenth Amendment liability, municipalities are treated by the law as if they were persons. Monell v. Department of Social Services, 436 U.S. 658, 690 (1978); Moor v. County of Alameda, 411 U.S. 693, 717-18 (1973). There is at least an argument that the marketplace of ideas would be unduly curtailed if municipalities could not freely express themselves on matters of public concern, including the subsidization of housing and the demographic makeup of the community. To the extent, moreover, that a municipality is the voice of its residents—is, indeed, a megaphone amplifying voices that might not otherwise be audible—a curtailment of its right to speak might be thought a curtailment of the unquestioned First Amendment rights of those residents. See Meir Dan-Cohen, "Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State," 79 Calif. L. Rev. 1229, 1261-63 (1991); cf. Student Government Ass'n v. Board of Trustees, supra, 868 F.2d at 482. Thus if federal law imposed a fine on municipalities that passed resolutions condemning abortion, one might suppose that a genuine First Amendment issue would be presented. Against this suggestion can be cited the many cases which hold that municipalities lack standing to invoke the Fourteenth Amendment against actions by the state. E.g., Coleman v. Miller, 307 U.S. 433, 441 (1939); Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 (1933); City of East St. Louis v. Circuit Court for the Twentieth Judicial Circuit, 986 F.2d 1142, 1144 (7th Cir. 1993). But it is one thing to hold that a municipality cannot interpose the Fourteenth Amendment between itself and the state of which it is the creature, Anderson v. City of Boston, 380 N.E.2d 628, 637-38 (Mass. 1978), appeal dismissed for want of a substantial federal question, 439 U.S. 1060 (1979), and another to hold that a municipality has no rights against the federal government or another state. Township of River Vale v. Town of Orangetown, 403 F.2d 684, 686 (2d Cir. 1968), distinguishes between these two types of cases. Creek v. Village of Westhaven, 80 F.3d 186, 192-93 (7th Cir. 1996). We also note that there is no textual support in the First Amendment for distinguishing between, for example, municipal corporations, and private corporations, which the Court has recognized have cognizable First Amendment rights. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775-76 (1978). Unlike other provisions in the Bill of Rights, which the Supreme Court has held to be "purely personal" and thus capable of being invoked only by individuals, the First Amendment is not phrased in terms of who holds the right, but rather what is protected. Compare U.S. Const. amend V ("No person shall be held to answer . . .") (emphasis added) with U.S. Const. amend I ("Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ."); see also United States v. White, 322 U.S. 694, 698-701 (1944) (holding that the privilege against self- incrimination applies only to natural persons). The Supreme Court relied on this distinction (i.e., that the First Amendment protects a class of speech rather than a class of speakers) in a similar context in Bellotti. There, the Court invalidated a Massachusetts statute that prohibited corporations from spending money to influence ballot initiatives that did not bear directly on their "property, business or assets." Id. at 768. In so holding, the Court rejected the argument that the First Amendment protects only an individual's expression. The Court wrote: The Constitution often protects interests broader than those of the party seeking their vindication. . . . The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the government is] abridg[ing] expression that the First Amendment was meant to protect. Id. at 776. The Court thus concluded that corporations are entitled to assert First Amendment claims as speakers, noting that "[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Id. at 777. In view of the foregoing, the notion that public libraries may assert First Amendment rights for the purpose of making an unconstitutional conditions claim is clearly plausible, and may well be correct. But even if it is not, we think it plausible that they could rely on their patrons' rights, even though their patrons are not the ones who are directly receiving the federal funding. In similar cases, the Supreme Court has entertained unconstitutional conditions claims both by the organizations that receive federal funding and by their constituents. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 537 (2001) ("Lawyers employed by New York City LSC grantees, together with private LSC contributors, LSC indigent clients, and various state and local public officials whose governments contribute to LSC grantees, brought suit . . . to declare the restriction [on LSC lawyers' ability advocate the amendment of or to challenge the constitutionality of existing welfare law] . . . invalid."); Rust v. Sullivan, 500 U.S. 173, 181 (1991) ("Petitioners are Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients. . . . Petitioners challenged the regulations on the grounds that . . . they violate the First and Fifth Amendment rights of Title X clients and the First Amendment rights of Title X health providers."); FCC v. League of Women Voters of Cal., 468 U.S. 364, 370 n.6 (1984) (reviewing a First Amendment challenge to conditions on public broadcasters' receipt of federal funds, in which the plaintiffs included not only the owner of a public television station, but also viewers of the station's programs, including the League of Women Voters, and "Congressman Henry Waxman, . . . a regular listener and viewer of public broadcasting"). The question whether CIPA's requirement that libraries use filtering software constitutes an unconstitutional condition is not an easy one. The Supreme Court has held that it violates the First Amendment for the federal government to require public broadcasting stations that receive federal funds not to editorialize, see League of Women Voters, 468 U.S. at 366, 402; for states to subsidize "newspaper and religious, professional, trade, and sports journals," but not "general interest magazines," Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221, 223 (1987); for a state university to subsidize student publications only on the condition that they do not "primarily promote[] or manifest[] a particular belief in or about a deity or an ultimate reality," Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 823 (1995); and for the federal government to prevent legal services providers who receive federal funds from seeking to "amend or otherwise challenge existing welfare law." Velazquez, 531 U.S. at 537. On the other hand, the Supreme Court has held that it does not violate the First Amendment for the federal government to require healthcare providers who receive federal funds not to "encourage, promote or advocate abortion as a method of family planning," Rust, 500 U.S. at 180; for the federal government to subsidize charitable organizations only if they do not engage in lobbying activity, see Regan v. Taxation with Representation, 461 U.S. 540 (1983); and for the National Endowment for the Arts, in awarding grants on the basis of artistic excellence, to "take into consideration general standards of decency and respect for the diverse beliefs and values of the American Public." NEA v. Finley, 524 U.S. 569, 572 (1998). In light of the facts that we discuss above regarding the operation of public libraries, and the limits of Internet filtering software, see supra Sections II.D-E, we believe that the plaintiffs have a good argument that this case is more analogous to League of Women Voters, Arkansas Writers' Project, and Velazquez than it is to Rust, Finley and Taxation with Representation. Like the law invalidated in League of Women Voters, which targeted editorializing, and the law invalidated in Arkansas Writers' Project, which targeted general interest magazines but not "religious, professional, trade, and sports journals," the law in this case places content-based restrictions on public libraries' possible First Amendment right to provide patrons with access to constitutionally protected material. See Arkansas Writers' Project, 481 U.S. at 229 ("[T]he basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content. Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.") (internal quotation marks and citations omitted); League of Women Voters, 468 U.S. at 383 ("[T]he scope of [the challenged statute's] ban is defined solely on the basis of the content of the suppressed speech."). See generally Rosenberger, 515 U.S. at 828 ("It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys."). Because of the technological limitations of filtering software described in such detail above, Congress's requirement that public libraries use such software is in effect a requirement that public libraries block a substantial amount of constitutionally protected speech on the basis of its content. Plaintiffs' argument that the federal government may not require public libraries who receive federal funds to restrict the availability of constitutionally protected Web sites solely on the basis of the sites' content finds further support in the role that public libraries have traditionally served in maintaining First Amendment values. As evidenced by the many public libraries that have endorsed the Freedom to Read Statement and the Library Bill of Rights, see supra Subsection II.D.1, public libraries seemingly have a duty to challenge prevailing orthodoxy and make available to the public controversial, yet constitutionally protected material, even if it means drawing the ire of the community. See Bd. of Educ. v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting) (noting that "public libraries" are "designed for freewheeling inquiry"). By interfering with public libraries' discretion to make available to patrons as wide a range of constitutionally protected speech as possible, the federal government is arguably distorting the usual functioning of public libraries as places of freewheeling inquiry. The Velazquez Court, in invalidating the federal government's restrictions on the ability of federally funded legal services providers to challenge the constitutionality of welfare laws, relied on the manner in which the restrictions that the federal government placed on legal services' attorneys' speech distorted the usual functioning of the judicial system: [T]he Government seeks to use an existing medium of expression and to control it, in a class of cases, in ways which distort its usual functioning. . . . The First Amendment forb[ids] the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium. 531 U.S. at 543. By the same token, CIPA arguably distorts the usual functioning of public libraries both by requiring libraries to: (1) deny patrons access to constitutionally protected speech that libraries would otherwise provide to patrons; and (2) delegate decision making to private software developers who closely guard their selection criteria as trade secrets and who do not purport to make their decisions on the basis of whether the blocked Web sites are constitutionally protected or would add value to a public library's collection. At all events, CIPA clearly does not seem to serve the purpose of limiting the extent of government speech given the extreme diversity of speech on the Internet. Nor can Congress's decision to subsidize Internet access be said to promote a governmental message or constitute governmental speech, even under a generous understanding of the concept. As the Court noted in Reno v. ACLU, 521 U.S. 844 (1997), "[i]t is no exaggeration to conclude that the content on the Internet is as diverse as human thought." Id. at 852 (internal quotation marks omitted). Even with software filters in place, the sheer breadth of speech available on the Internet defeats any claim that CIPA is intended to facilitate the dissemination of governmental speech. Like in Velazquez, "there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives." Velazquez, 531 U.S. at 548. In sum, we think that the plaintiffs have good arguments that they may assert an unconstitutional conditions claim by relying either on the public libraries' First Amendment rights or on the rights of their patrons. We also think that the plaintiffs have a good argument that CIPA's requirement that public libraries use filtering software distorts the usual functioning of public libraries in such a way that it constitutes an unconstitutional condition on the receipt of funds. We do not decide these issues, confident that our findings of fact on the functioning of public libraries, their use of the Internet, and the technological limitations of Internet filtering software, see supra Sections II.D-E, would allow the Supreme Court to decide the unconstitutional conditions claim if the Court deems it necessary. CIPA Sec. 1712(a)(2) contains a provision titled "Separability," which is codified in the Library Services and Technology Act, 20 U.S.C. Sec. 9134(f)(6), and provides: "If any provision of this subsection is held invalid, the remainder of this subsection shall not be affected thereby." CIPA section 1721(e) also contained a similar provision that applied to E-rate funding, although it was not codified in the Communications Act. That section, also titled "Separability," provided: "If any provision of paragraph (5) or (6) of section 254(h) of the Communications Act of 1934, as amended by this section, or the application thereof to any person or circumstance is held invalid, the remainder of such paragraph and the application of such paragraph to other persons or circumstances shall not be affected thereby." CIPA Sec. 1721(e). 
4291	----	Copyright Law of the United States of America and Related Laws Contained in Title 17 of the *United States Code* Circular 92 ------------------------------------------------------------------------ Contents + The Constitutional Provision Respecting Copyright + Preface + Chapter 1 - Subject Matter and Scope of Copyright + Chapter 2 - Copyright Ownership and Transfer + Chapter 3 - Duration of Copyright + Chapter 4 - Copyright Notice, Deposit, and Registration + Chapter 5 - Copyright Infringement and Remedies + Chapter 6 - Manufacturing Requirements and Importation + Chapter 7 - Copyright Office + Chapter 8 - Copyright Arbitration Royalty Panels + Chapter 9 - Protection of Semiconductor Chip Products + Chapter 10 - Digital Audio Recording Devices and Media + Chapter 11 - Sound Recordings and Music Videos + Chapter 12 - Copyright Protection and Management Systems + Chapter 13 - Protection of Original Designs + Appendix I. Transitional and Supplementary Provisions of the Copyright Act of 1976 + Appendix II. Berne Convention Implementation Act of 1988 + Appendix III. Uruguay Round Agreements Act + Appendix IV. GATT/Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, Part II, Section 6: Layout-Designs (Topographies) of Integrated Circuits + Appendix V. Additional Provisions of the Digital Millennium Copyright Act + Appendix VI. Definition of "Berne Convention Work" + Appendix VII. Selected Provisions of the U.S. Code Relating to Copyright ------------------------------------------------------------------------ The Constitutional Provision Respecting Copyright The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries (United States Constitution, Article I, Section 8) ------------------------------------------------------------------------ Preface This volume contains the text of title 17 of the *United States Code*, including all amendments enacted through the end of the second session of the 106th Congress in 2000. It includes the Copyright Act of 1976 and all subsequent amendments to copyright law; the Semiconductor Chip Protection Act of 1984, as amended; and the Vessel Hull Design Protection Act, as amended. The Copyright Office is responsible for registering claims under all three. The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of title 17 of the *United States Code.* The Copyright Act of 1976, which provides the basic framework for the current copyright law, was enacted on October 19, 1976 as Pub. L. No. 94-553, 90 Stat. 2541. Listed below in chronological order of their enactment are subsequent amendments to copyright law. Chapters 9 and 13 of title 17 contain statutory design protection that is independent of copyright protection. Chapter 9 of title 17 is the Semiconductor Chip Protection Act of 1984 (SCPA), as amended. On November 8, 1984, the SCPA was enacted as title III of Pub. L. No. 98-620, 98 Stat. 3335, 3347. Chapter 13 of title 17 is the Vessel Hull Design Protection Act (VHDPA). It was enacted on October 28, 1998 as title V of the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860, 2905. Subsequent amendments to the SCPA and the VHDPA are also included in the list below, in chronological order of their enactment. For transitional and supplementary copyright provisions that were enacted as part of the Copyright Act of 1976 and the DMCA, but which do not amend title 17, see the Appendix. Statutory Enactments Contained in Title 17 of the *United States Code* + [Copyright Act of 1976], Pub. L. No. 94-553, 90 Stat. 2541 (for the general revision of copyright law, title 17 of the *United States Code*, and for other purposes), October 19, 1976. + Legislative Branch Appropriation Act, 1978, Pub. L. No. 95-94, 91 Stat. 653, 682 (amending Sec. 203 and 708, title 17, *United States Code*, regarding the deposit of moneys by the Register of Copyrights in the Treasury of the United States), enacted August 5, 1977. + [Copyright Amendments], Pub. L. No. 95-598, 92 Stat. 2549, 2676 (amending Sec. 201(e), title 17, *United States Code*, to permit involuntary transfer under the Bankruptcy Law), enacted November 6, 1978. + [Copyright Amendments], Pub. L. No. 96-517, 94 Stat. 3015, 3028 (amending Sec. 101 and 117, title 17, *United States Code*, regarding computer programs), enacted December 12, 1980. + Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No. 97-180, 96 Stat. 91, 93 (amending Sec. 506(a), title 17, *United States Code* and title 18 of the *United States Code*), enacted May 24, 1982. + [Copyright Amendments], Pub. L. No. 97-215, 96 Stat. 178 (amending the manufacturing clause in chapter 6, title 17, *United States Code*), enacted July 13, 1982. + [Copyright Amendments], Pub. L. No. 97-366, 96 Stat. 1759 (amending Sec. 110 and Sec. 708, title 17, *United States Code*, regarding the redesignation of registration fees as filing fees, and the exemption from copyright liability of certain performances of nondramatic literary or musical works), enacted October 25, 1982. + Record Rental Amendment of 1984, Pub. L. No. 98-450, 98 Stat. 1727 (amending Sec. 109 and Sec. 115, title 17, *United States Code*, with respect to rental, lease or lending of sound recordings), enacted October 4, 1984. + Semiconductor Chip Protection Act of 1984, title III of Pub. L. No. 98-620, 98 Stat. 3335, 3347 (adding chapter 9, title 17, *United States Code*, to provide design protection for semiconductor chips), November 8, 1984. + [Copyright Amendments], Pub. L. No. 99-397, 100 Stat. 848 (amending Sec. 111 and Sec. 801, title 17, *United States Code*, to clarify the definition of the local service area of a primary transmitter in the case of a low power television station), enacted on August 27, 1986. + [Amendments to the Semiconductor Chip Protection Act of 1984], Pub. L. No. 100-159, 101 Stat. 899 (amending chapter 9, title 17, *United States Code*, regarding protection extended to semiconductor chip products of foreign entities), enacted November 9, 1987. + Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, enacted October 31, 1988. (See the Appendix for certain provisions of this Act that do not amend title 17 of the *United States Code.*) + [Copyright Amendments], Pub. L. No. 100-617, 102 Stat. 3194 (extending for an additional eight-year period certain provisions of title 17, *United States Code*, relating to the rental of sound recordings and for other purposes), enacted November 5, 1988. + Satellite Home Viewer Act of 1988, title II of Pub. L. No. 100-667, 102 Stat. 3935, 3949, enacted November 16, 1988. + Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 Stat. 4642, 4672 (amending Sec. 912, title 17, *United States Code*), enacted November 19, 1988. + Copyright Fees and Technical Amendments Act of 1989, Pub. L. No. 101-318, 104 Stat. 287, enacted on July 3, 1990. + Copyright Royalty Tribunal Reform and Miscellaneous Pay Act of 1989, Pub. L. No. 101-319, 104 Stat. 290, enacted July 3, 1990. + Copyright Remedy Clarification Act, Pub. L. No. 101-553, 104 Stat. 2749, enacted November 15, 1990. + Visual Artists Rights Act of 1990, title VI of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5128, enacted December 1, 1990. + Architectural Works Copyright Protection Act, title VII of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5133, enacted December 1, 1990. + Computer Software Rental Amendments Act of 1990, title VIII of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat 5089, 5134, enacted December 1, 1990. + Semiconductor International Protection Extension Act of 1991, Pub. L. No. 102-64, 105 Stat. 320 (amending chapter 9, title 17, *United States Code*, regarding protection extended to semiconductor chip products of foreign entities), enacted June 28, 1991. + Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, 272 (amending title 17 of the *United States Code*, by deleting subsection 108(i) in its entirety), enacted June 26, 1992. + Copyright Renewal Act of 1992, title I of the Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, enacted June 26, 1992. + [Copyright Amendments], Pub. L. No. 102-492, 106 Stat. 3145 (amending Sec. 107, title 17, *United States Code*, regarding unpublished works), enacted October 24, 1992. + [Copyright Amendments], Pub. L. No. 102-561, 106 Stat. 4233 (amending Sec. 2319, title 18, *United States Code*, regarding criminal penalties for copyright infringement), enacted October 28, 1992. + Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat. 4237 (amending title 17 of the *United States Code* by adding a new chapter 10), enacted October 28, 1992. + North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2114 and 2115 (amending Sec. 109, title 17, *United States Code*, and adding a new Sec. 104A), enacted December 8, 1993. + Copyright Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198, 107 Stat. 2304 (amending, *inter alia*, chapter 8, title 17, *United States Code*), enacted December 17, 1993. + Satellite Home Viewer Act of 1994, Pub. L. No. 103-369, 108 Stat. 3477 (amending, *inter alia*, Sec. 111 and Sec. 119, title 17, *United States Code*, relating to the definition of a local service area of a primary transmitter), enacted October 18, 1994. + Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4973 (amending, *inter alia*, Sec. 104A, title 17, *United States Code*, and adding a new chapter 11), enacted December 8, 1994. (See the Appendix for the text of certain provisions of this Act that do not amend title 17 of the *United States Code.*) + Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (amending, *inter alia*, Sec. 114 and Sec. 115, title 17, *United States Code*), enacted November 1, 1995. + Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No. 104-153, 110 Stat. 1386, 1388 (amending Sec. 603(c), title 17, *United States Code* and Sec. 2318, title 18, *United States Code*), enacted July 2, 1996. + Legislative Branch Appropriations Act, 1997, Pub. L. No. 104-197, 110 Stat. 2394, 2416 (amending*, inter alia*, title 17 of the *United States Code*, by adding a new Sec. 121 concerning the limitation on exclusive copyrights for literary works in specialized format for the blind and disabled), enacted September 16, 1996. + [Copyright Amendments and Amendments to the Semiconductor Chip Protection Act of 1984], Pub. L. No. 105-80, 111 Stat. 1529 (making technical amendments to certain provisions of title 17, *United States Code*), enacted November 13, 1997. + No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678, enacted December 16, 1997. + Sonny Bono Copyright Term Extension Act, title I of Pub. L. No. 105-298, 112 Stat. 2827 (amending chapter 3, title 17, *United States Code*, to extend the term of copyright protection for most works to life plus 70 years), enacted October 27, 1998. + Fairness in Music Licensing Act of 1998, title II of Pub. L. No. 105-298, 112 Stat. 2827, 2830 (amending, *inter alia*, Sec. 110, title 17, *United States Code*, and adding Sec. 513 to provide a music licensing exemption for food service and drinking establishments), enacted October 27, 1998. + Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2887 (title IV amending Sec. 108, 112, 114, chapter 7 and chapter 8, title 17, *United States Code*), enacted October 28, 1998. (This Act also contains four separate acts within titles I, II, III and V that amended title 17 of the *United States Code.* These four acts are each separately listed below. See the Appendix for additional provisions of this Act that do not amend title 17 of the *United States Code.*) + WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998, title I of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2861 (amending title 17 of the *United States Code*, *inter alia*, to add a new chapter 12 which prohibits circumvention of copyright protection systems and provides protection for copyright management information), enacted October 28, 1998. + Online Copyright Infringement Liability Limitation Act, title II of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2877 (amending title 17 of the *United States Code*, to add a new Sec. 512), enacted October 28, 1998. + Computer Maintenance Competition Assurance Act, title III of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2886 (amending Sec. 117, title 17, *United States Code*), enacted October 28, 1998. + Vessel Hull Design Protection Act, title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2905 (adding chapter 13, title 17, *United States Code*, to provide design protection for vessel hulls), enacted October 28, 1998. + [Copyright Amendments and Amendments to the Vessel Hull Design Protection Act], Pub. L. No. 106-44, 113 Stat. 221 (making technical corrections to title 17 of the *United States Code*), enacted August 5, 1999. + Satellite Home Viewer Improvement Act of 1999, title I of the Intellectual Property and Communications Omnibus Reform Act of 1999, Pub. L. No. 106-113, 113 Stat. 1501, app. I (amending chapters 1 and 5 of title 17 of the *United States Code* to replace the Satellite Home Viewer Act of 1994 and amending chapters 12 and 13 of title 17), enacted November 29, 1999. + Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Pub. L. No. 106-160, 113 Stat 1774, (amending chapter 5 of title 17 of the *United States Code* to increase statutory damages for copyright infringement), enacted December 9, 1999. + Work Made for Hire and Copyright Corrections Act of 2000, Pub. L. No. 106-379, 114 Stat. 1444 (amending the definition of work made for hire in title 17 of the *United States Code*, amending chapter 7 of title 17, including changing the language regarding Copyright Office fees, and making other technical and conforming amendments to title 17), enacted October 27, 2000. ------------------------------------------------------------------------ Chapter 1 Subject Matter and Scope of Copyright + 101. Definitions + 102. Subject matter of copyright: In general + 103. Subject matter of copyright: Compilations and derivative works + 104. Subject matter of copyright: National origin + 104A. Copyright in restored works + 105. Subject matter of copyright: United States Government works + 106. Exclusive rights in copyrighted works + 106A. Rights of certain authors to attribution and integrity + 107. Limitations on exclusive rights: Fair use + 108. Limitations on exclusive rights: Reproduction by libraries and archives + 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord + 110. Limitations on exclusive rights: Exemption of certain performances and displays + 111. Limitations on exclusive rights: Secondary transmissions + 112. Limitations on exclusive rights: Ephemeral recordings + 113. Scope of exclusive rights in pictorial, graphic, and sculptural works + 114. Scope of exclusive rights in sound recordings + 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords + 116. Negotiated licenses for public performances by means of coin- operated phonorecord players + 117. Limitations on exclusive rights: Computer programs [1] + 118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting + 119. Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private home viewing + 120. Scope of exclusive rights in architectural works + 121. Limitations on exclusive rights: reproduction for blind or other people with disabilities + 122. Limitations on exclusive rights; secondary transmissions by satellite carriers within local market Section 101. Definitions [2] Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following: An "anonymous work" is a work on the copies or phonorecords of which no natural person is identified as author. An "architectural work" is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features. [3] "Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. The "Berne Convention" is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto. [4] The "best edition" of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes. A person's "children" are that person's immediate offspring, whether legitimate or not, and any children legally adopted by that person. A "collective work" is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works. "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. "Copyright owner", with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right. A work is "created" when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work". A "device", "machine", or "process" is one now known or later developed. A "digital transmission" is a transmission in whole or in part in a digital or other non-analog format. [5] To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. An "establishment" is a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly. [6] A "food service or drinking establishment" is a restaurant, inn, bar, tavern, or any other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink, in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly. [7] The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works. [8] A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission. The "Geneva Phonograms Convention" is the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, concluded at Geneva, Switzerland, on October 29, 1971. [9] The "gross square feet of space" of an establishment means the entire interior space of that establishment, and any adjoining outdoor space used to serve patrons, whether on a seasonal basis or otherwise. [10] The terms "including" and "such as" are illustrative and not limitative. An "international agreement" is- (1) the Universal Copyright Convention; (2) the Geneva Phonograms Convention; (3) the Berne Convention; (4) the WTO Agreement; (5) the WIPO Copyright Treaty; [11] (6) the WIPO Performances and Phonograms Treaty; [12] and (7) any other copyright treaty to which the United States is a party. [13] A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. "Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. "Motion pictures" are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any. To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. A "performing rights society" is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc. [14] "Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed. "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. [15] For purposes of section 513, a "proprietor" is an individual, corporation, partnership, or other entity, as the case may be, that owns an establishment or a food service or drinking establishment, except that no owner or operator of a radio or television station licensed by the Federal Communications Commission, cable system or satellite carrier, cable or satellite carrier service or programmer, provider of online services or network access or the operator of facilities therefor, telecommunications company, or any other such audio or audiovisual service or programmer now known or as may be developed in the future, commercial subscription music service, or owner or operator of any other transmission service, shall under any circumstances be deemed to be a proprietor. [16] A "pseudonymous work" is a work on the copies or phonorecords of which the author is identified under a fictitious name. "Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. To perform or display a work "publicly" means- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. "Registration", for purposes of sections 205(c)(2), 405, 406, 410(d), 411, 412, and 506(e), means a registration of a claim in the original or the renewed and extended term of copyright. [17] "Sound recordings" are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. "State" includes the District of Columbia and the Commonwealth of Puerto Rico, and any territories to which this title is made applicable by an Act of Congress. A "transfer of copyright ownership" is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license. A "transmission program" is a body of material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit. To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. A "treaty party" is a country or intergovernmental organization other than the United States that is a party to an international agreement. [18] The "United States", when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government. For purposes of section 411, a work is a "United States work" only if: (1) in the case of a published work, the work is first published- (A) in the United States; (B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States; (C) simultaneously in the United States and a foreign nation that is not a treaty party; or (D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States; (2) in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or (3) in the case of a pictorial, graphic, or sculptural work incorporated in a building or structure, the building or structure is located in the United States. [19] A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article". The author's "widow" or "widower" is the author's surviving spouse under the law of the author's domicile at the time of his or her death, whether or not the spouse has later remarried. The "WIPO Copyright Treaty" is the WIPO Copyright Treaty concluded at Geneva, Switzerland, on December 20, 1996. [20] The "WIPO Performances and Phonograms Treaty" is the WIPO Performances and Phonograms Treaty concluded at Geneva, Switzerland, on December 20, 1996. [21] A "work of visual art" is- (1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. A work of visual art does not include- (A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; (ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; (iii) any portion or part of any item described in clause (i) or (ii); (B) any work made for hire; or (C) any work not subject to copyright protection under this title. [22] A "work of the United States Government" is a work prepared by an officer or employee of the United States Government as part of that person's official duties. A "work made for hire" is- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment-- (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations. [23] The terms "WTO Agreement" and "WTO member country" have the meanings given those terms in paragraphs (9) and (10), respectively, of section 2 of the Uruguay Round Agreements Act. {24} A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. [25] Section 102. Subject matter of copyright: In general [26] (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Section 103. Subject matter of copyright: Compilations and derivative works (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Section 104. Subject matter of copyright: National origin [27] (a) Unpublished Works. The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author. (b) Published Works. The works specified by sections 102 and 103, when published, are subject to protection under this title if- (1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled; or (2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or (3) the work is a sound recording that was first fixed in a treaty party; or (4) the work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or (5) the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or (6) the work comes within the scope of a Presidential proclamation. Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States or to works that are first published in the United States, copyright protection on substantially the same basis as that on which the foreign nation extends protection to works of its own nationals and domiciliaries and works first published in that nation, the President may by proclamation extend protection under this title to works of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation, or which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under a proclamation. For purposes of paragraph (2), a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be. (c) Effect of Berne Convention. No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. (d) Effect of Phonograms Treaties. Notwithstanding the provisions of subsection (b), no works other than sound recordings shall be eligible for protection under this title solely by virtue of the adherence of the United States to the Geneva Phonograms Convention or the WIPO Performances and Phonograms Treaty. [28] Section 104A. Copyright in restored works [29] (a) Automatic Protection and Term.- (1) Term.- (A) Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration. (B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States. (2) Exception. Any work in which the copyright was ever owned or administered by the Alien Property Custodian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a restored work. (b) Ownership of Restored Copyright. A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. (c) Filing of Notice of Intent to Enforce Restored Copyright Against Reliance Parties. On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright Office a notice of intent to enforce that person's copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright Office is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. (d) Remedies for Infringement of Restored Copyrights.- (1) Enforcement of Copyright in Restored Works in the Absence of a Reliance Party. As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. (2) Enforcement of Copyright in Restored Works as Against Reliance Parties. As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a restored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: (A)(i) The owner of the restored copyright (or such owner's agent) or the owner of an exclusive right therein (or such owner's agent) files with the Copyright Office, during the 24-month period beginning on the date of restoration, a notice of intent to enforce the restored copyright; and (ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publication of the notice in the Federal Register; (II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or (III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. (B)(i) The owner of the restored copyright (or such owner's agent) or the owner of an exclusive right therein (or such owner's agent) serves upon a reliance party a notice of intent to enforce a restored copyright; and (ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; (II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or (III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. In the event that notice is provided under both subparagraphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publication or service of notice. (3) Existing Derivative Works.- (A) In the case of a derivative work that is based upon a restored work and is created- (i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the restored work is an eligible country on such date, or (ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. (B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of the restored work from the reliance party's continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. (4) Commencement of Infringement for Reliance Parties. For purposes of section 412, in the case of reliance parties, infringement shall be deemed to have commenced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. (e) Notices of Intent to Enforce a Restored Copyright.- (1) Notices of Intent Filed With the Copyright Office.- (A)(i) A notice of intent filed with the Copyright Office to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsection (d)(2)(A)(i) (hereafter in this paragraph referred to as the "owner"), or by the owner's agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright Office may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. (ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. (iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). (B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. (ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information Office of the Copyright Office and shall be available for public inspection and copying during regular business hours pursuant to sections 705 and 708. (C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. (D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Property referred to in section 101(d) (15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright Office shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. (ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. (2) Notices of Intent Served on a Reliance Party.- (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of restoration of the restored copyright. (B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner's agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. (3) Effect of Material False Statements. Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. (f) Immunity From Warranty and Related Liability.- (1) In General. Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 106 shall not be liable for legal, equitable, arbitral, or administrative relief if the warranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warranty, promise, or guarantee is made before January 1, 1995. (2) Performances. No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. (g) Proclamation of Copyright Restoration. Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work (1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or (2) which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. (h) Definitions. For purposes of this section and section 109(a): (1) The term "date of adherence or proclamation" means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes- (A) a nation adhering to the Berne Convention; (B) a WTO member country; (C) a nation adhering to the WIPO Copyright Treaty; [30] (D) a nation adhering to the WIPO Performances and Phonograms Treaty; [31] or (E) subject to a Presidential proclamation under subsection (g). (2) The "date of restoration" of a restored copyright is- (A) January 1, 1996, if the source country of the restored work is a nation adhering to the Berne Convention or a WTO member country on such date, or (B) the date of adherence or proclamation, in the case of any other source country of the restored work. (3) The term "eligible country" means a nation, other than the United States, that (A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; (B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; (C) adheres to the WIPO Copyright Treaty; [32] (D) adheres to the WIPO Performances and Phonograms Treaty; [33] or (E) after such date of enactment becomes subject to a proclamation under subsection (g). (4) The term "reliance party" means any person who- (A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; (B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or (C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or significant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. (5) The term "restored copyright" means copyright in a restored work under this section. (6) The term "restored work" means an original work of authorship that- (A) is protected under subsection (a); (B) is not in the public domain in its source country through expiration of term of protection; (C) is in the public domain in the United States due to- (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (iii) lack of national eligibility; (D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and (E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. [34] (7) The term "rightholder" means the person- (A) who, with respect to a sound recording, first fixes a sound recording with authorization, or (B) who has acquired rights from the person described in subparagraph (A) by means of any conveyance or by operation of law. (8) The "source country" of a restored work is- (A) a nation other than the United States; (B) in the case of an unpublished work- (i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or (ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and (C) in the case of a published work- (i) the eligible country in which the work is first published, or (ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work. Section 105. Subject matter of copyright: United States Government works [35] Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. Section 106. Exclusive rights in copyrighted works [36] Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. Section 106A. Rights of certain authors to attribution and integrity [37] (a) Rights of Attribution and Integrity. Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art (1) shall have the right- (A) to claim authorship of that work, and (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create; (2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and (3) subject to the limitations set forth in section 113(d), shall have the right- (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right. (b) Scope and Exercise of Rights. Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work. (c) Exceptions.- (1) The modification of a work of visual art which is the result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A). (2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence. (3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of "work of visual art" in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a). (d) Duration of Rights.- (1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author. (2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106. (3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author. (4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire. (e) Transfer and Waiver.- (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors. (2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work. Section 107. Limitations on exclusive rights: Fair use [38] Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Section 108. Limitations on exclusive rights: Reproduction by libraries and archives [39] (a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if- (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copy-right if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section. (b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if- (1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and (2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives. (c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if- (1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and (2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace. (d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if- (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. (e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if- (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. (f) Nothing in this section- (1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: *Provided*, That such equipment displays a notice that the making of a copy may be subject to the copyright law; (2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107; (3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or (4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections. (g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee- (1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or (2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): *Provided*, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work. (h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply. (2) No reproduction, distribution, display, or performance is authorized under this subsection if= (A) the work is subject to normal commercial exploitation; (B) a copy or phonorecord of the work can be obtained at a reasonable price; or (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies. (3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives. (i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e). Section 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord [40] (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A(e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on- (1) the date of the publication in the Federal Register of the notice of intent filed with the Copyright Office under section 104A(d)(2)(A), or (2) the date of the receipt of actual notice served under section 104A(d)(2)(B), whichever occurs first. (b)(1)(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection. (B) This subsection does not apply to- (i) a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or (ii) a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes. (C) Nothing in this subsection affects any provision of chapter 9 of this title. (2)(A) Nothing in this subsection shall apply to the lending of a computer program for nonprofit purposes by a nonprofit library, if each copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. (B) Not later than three years after the date of the enactment of the Computer Software Rental Amendments Act of 1990, and at such times thereafter as the Register of Copyrights considers appropriate, the Register of Copyrights, after consultation with representatives of copyright owners and librarians, shall submit to the Congress a report stating whether this paragraph has achieved its intended purpose of maintaining the integrity of the copyright system while providing nonprofit libraries the capability to fulfill their function. Such report shall advise the Congress as to any information or recommendations that the Register of Copyrights considers necessary to carry out the purposes of this subsection. (3) Nothing in this subsection shall affect any provision of the antitrust laws. For purposes of the preceding sentence, "antitrust laws" has the meaning given that term in the first section of the Clayton Act and includes section 5 of the Federal Trade Commission Act to the extent that section relates to unfair methods of competition. (4) Any person who distributes a phonorecord or a copy of a computer program (including any tape, disk, or other medium embodying such program) in violation of paragraph (1) is an infringer of copyright under section 501 of this title and is subject to the remedies set forth in sections 502, 503, 504, 505, and 509. Such violation shall not be a criminal offense under section 506 or cause such person to be subject to the criminal penalties set forth in section 2319 of title 18. (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. (d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it. (e) Notwithstanding the provisions of sections 106(4) and 106(5), in the case of an electronic audiovisual game intended for use in coin-operated equipment, the owner of a particular copy of such a game lawfully made under this title, is entitled, without the authority of the copyright owner of the game, to publicly perform or display that game in coin- operated equipment, except that this subsection shall not apply to any work of authorship embodied in the audiovisual game if the copyright owner of the electronic audiovisual game is not also the copyright owner of the work of authorship. Section 110. Limitations on exclusive rights: Exemption of certain performances and displays [41] Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made; (2) performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if- (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and (C) the transmission is made primarily for- (i) reception in classrooms or similar places normally devoted to instruction, or (ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or (iii) reception by officers or employees of governmental bodies as a part of their official duties or employment; (3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly; (4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if- (A) there is no direct or indirect admission charge; or (B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions; (i) the notice shall be in writing and signed by the copyright owner or such owner's duly authorized agent; and (ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and (iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation; (5)(A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless- (i) a direct charge is made to see or hear the transmission; or (ii) the transmission thus received is further transmitted to the public; (B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if- (i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and- (I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or (II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; (ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and (I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or (II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; (iii) no direct charge is made to see or hear the transmission or retransmission; (iv) the transmission or retransmission is not further transmitted beyond the establishment where it is received; and (v) the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed; (6) performance of a nondramatic musical work by a governmental body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such body or organization; the exemption provided by this clause shall extend to any liability for copyright infringement that would otherwise be imposed on such body or organization, under doctrines of vicarious liability or related infringement, for a performance by a concessionnaire, business establishment, or other person at such fair or exhibition, but shall not excuse any such person from liability for the performance; (7) performance of a nondramatic musical work by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work, or of the audiovisual or other devices utilized in such performance, and the performance is not transmitted beyond the place where the establishment is located and is within the immediate area where the sale is occurring; (8) performance of a nondramatic literary work, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, or deaf or other handicapped persons who are unable to hear the aural signals accompanying a transmission of visual signals, if the performance is made without any purpose of direct or indirect commercial advantage and its transmission is made through the facilities of: (i) a governmental body; or (ii) a noncommercial educational broadcast station (as defined in section 397 of title 47); or (iii) a radio subcarrier authorization (as defined in 47 CFR 73.293-73.295 and 73.593-73.595); or (iv) a cable system (as defined in section 111 (f)); (9) performance on a single occasion of a dramatic literary work published at least ten years before the date of the performance, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, if the performance is made without any purpose of direct or indirect commercial advantage and its transmission is made through the facilities of a radio subcarrier authorization referred to in clause (8) (iii), *Provided*, That the provisions of this clause shall not be applicable to more than one performance of the same work by the same performers or under the auspices of the same organization; and (10) notwithstanding paragraph (4), the following is not an infringement of copyright: performance of a nondramatic literary or musical work in the course of a social function which is organized and promoted by a nonprofit veterans' organization or a nonprofit fraternal organization to which the general public is not invited, but not including the invitees of the organizations, if the proceeds from the performance, after deducting the reasonable costs of producing the performance, are used exclusively for charitable purposes and not for financial gain. For purposes of this section the social functions of any college or university fraternity or sorority shall not be included unless the social function is held solely to raise funds for a specific charitable purpose. The exemptions provided under paragraph (5) shall not be taken into account in any administrative, judicial, or other governmental proceeding to set or adjust the royalties payable to copyright owners for the public performance or display of their works. Royalties payable to copyright owners for any public performance or display of their works other than such performances or displays as are exempted under paragraph (5) shall not be diminished in any respect as a result of such exemption. Section 111. Limitations on exclusive rights: Secondary transmissions [42] (a) Certain Secondary Transmissions Exempted. The secondary transmission of a performance or display of a work embodied in a primary transmission is not an infringement of copyright if- (1) the secondary transmission is not made by a cable system, and consists entirely of the relaying, by the management of a hotel, apartment house, or similar establishment, of signals transmitted by a broadcast station licensed by the Federal Communications Commission, within the local service area of such station, to the private lodgings of guests or residents of such establishment, and no direct charge is made to see or hear the secondary transmission; or (2) the secondary transmission is made solely for the purpose and under the conditions specified by clause (2) of section 110; or (3) the secondary transmission is made by any carrier who has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission, and whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others: *Provided*, That the provisions of this clause extend only to the activities of said carrier with respect to secondary transmissions and do not exempt from liability the activities of others with respect to their own primary or secondary transmissions; (4) the secondary transmission is made by a satellite carrier for private home viewing pursuant to a statutory license under section 119; or (5) the secondary transmission is not made by a cable system but is made by a governmental body, or other nonprofit organization, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service. (b) Secondary Transmission of Primary Transmission to Controlled Group. Notwithstanding the provisions of subsections (a) and (c), the secondary transmission to the public of a performance or display of a work embodied in a primary transmission is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, if the primary transmission is not made for reception by the public at large but is controlled and limited to reception by particular members of the public: *Provided*, however, That such secondary transmission is not actionable as an act of infringement if- (1) the primary transmission is made by a broadcast station licensed by the Federal Communications Commission; and (2) the carriage of the signals comprising the secondary transmission is required under the rules, regulations, or authorizations of the Federal Communications Commission; and (3) the signal of the primary transmitter is not altered or changed in any way by the secondary transmitter. (c) Secondary Transmissions by Cable Systems.- (1) Subject to the provisions of clauses (2), (3), and (4) of this subsection and section 114(d), secondary transmissions to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico shall be subject to statutory licensing upon compliance with the requirements of subsection (d) where the carriage of the signals comprising the secondary transmission is permissible under the rules, regulations, or authorizations of the Federal Communications Commission. (2) Notwithstanding the provisions of clause (1) of this subsection, the willful or repeated secondary transmission to the public by a cable system of a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico and embodying a performance or display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, in the following cases: (A) where the carriage of the signals comprising the secondary transmission is not permissible under the rules, regulations, or authorizations of the Federal Communications Commission; or (B) where the cable system has not deposited the statement of account and royalty fee required by subsection (d). (3) Notwithstanding the provisions of clause (1) of this subsection and subject to the provisions of subsection (e) of this section, the secondary transmission to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if the content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcements transmitted by the primary transmitter during, or immediately before or after, the transmission of such program, is in any way willfully altered by the cable system through changes, deletions, or additions, except for the alteration, deletion, or substitution of commercial advertisements performed by those engaged in television commercial advertising market research: *Provided*, That the research company has obtained the prior consent of the advertiser who has purchased the original commercial advertisement, the television station broadcasting that commercial advertisement, and the cable system performing the secondary transmission: *And provided further*, That such commercial alteration, deletion, or substitution is not performed for the purpose of deriving income from the sale of that commercial time. (4) Notwithstanding the provisions of clause (1) of this subsection, the secondary transmission to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station licensed by an appropriate governmental authority of Canada or Mexico is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and section 509, if (A) with respect to Canadian signals, the community of the cable system is located more than 150 miles from the United States-Canadian border and is also located south of the forty-second parallel of latitude, or (B) with respect to Mexican signals, the secondary transmission is made by a cable system which received the primary transmission by means other than direct interception of a free space radio wave emitted by such broadcast television station, unless prior to April 15, 1976, such cable system was actually carrying, or was specifically authorized to carry, the signal of such foreign station on the system pursuant to the rules, regulations, or authorizations of the Federal Communications Commission. (d) Statutory License for Secondary Transmissions by Cable Systems. [43] (1) A cable system whose secondary transmissions have been subject to statutory licensing under subsection (c) shall, on a semiannual basis, deposit with the Register of Copyrights, in accordance with requirements that the Register shall prescribe by regulation- (A) a statement of account, covering the six months next preceding, specifying the number of channels on which the cable system made secondary transmissions to its subscribers, the names and locations of all primary transmitters whose transmissions were further transmitted by the cable system, the total number of subscribers, the gross amounts paid to the cable system for the basic service of providing secondary transmissions of primary broadcast transmitters, and such other data as the Register of Copyrights may from time to time prescribe by regulation. In determining the total number of subscribers and the gross amounts paid to the cable system for the basic service of providing secondary transmissions of primary broadcast transmitters, the cable system shall not include subscribers and amounts collected from subscribers receiving secondary transmissions for private home viewing pursuant to section 119. Such statement shall also include a special statement of account covering any nonnetwork television programming that was carried by the cable system in whole or in part beyond the local service area of the primary transmitter, under rules, regulations, or authorizations of the Federal Communications Commission permitting the substitution or addition of signals under certain circumstances, together with logs showing the times, dates, stations, and programs involved in such substituted or added carriage; and (B) except in the case of a cable system whose royalty is specified in subclause (C) or (D), a total royalty fee for the period covered by the statement, computed on the basis of specified percentages of the gross receipts from subscribers to the cable service during said period for the basic service of providing secondary transmissions of primary broadcast transmitters, as follows: (i) 0.675 of 1 per centum of such gross receipts for the privilege of further transmitting any nonnetwork programming of a primary transmitter in whole or in part beyond the local service area of such primary transmitter, such amount to be applied against the fee, if any, payable pursuant to paragraphs (ii) through (iv); (ii) 0.675 of 1 per centum of such gross receipts for the first distant signal equivalent; (iii) 0.425 of 1 per centum of such gross receipts for each of the second, third, and fourth distant signal equivalents; (iv) 0.2 of 1 per centum of such gross receipts for the fifth distant signal equivalent and each additional distant signal equivalent thereafter; and in computing the amounts payable under paragraph (ii) through (iv), above, any fraction of a distant signal equivalent shall be computed at its fractional value and, in the case of any cable system located partly within and partly without the local service area of a primary transmitter, gross receipts shall be limited to those gross receipts derived from subscribers located without the local service area of such primary transmitter; and (C) if the actual gross receipts paid by subscribers to a cable system for the period covered by the statement for the basic service of providing secondary transmissions of primary broadcast transmitters total $80,000 or less, gross receipts of the cable system for the purpose of this subclause shall be computed by subtracting from such actual gross receipts the amount by which $80,000 exceeds such actual gross receipts, except that in no case shall a cable system's gross receipts be reduced to less than $3,000. The royalty fee payable under this subclause shall be 0.5 of 1 per centum, regardless of the number of distant signal equivalents, if any; and (D) if the actual gross receipts paid by subscribers to a cable system for the period covered by the statement, for the basic service of providing secondary transmissions of primary broadcast transmitters, are more than $80,000 but less than $160,000, the royalty fee payable under this subclause shall be (i) 0.5 of 1 per centum of any gross receipts up to $80,000; and (ii) 1 per centum of any gross receipts in excess of $80,000 but less than $160,000, regardless of the number of distant signal equivalents, if any. (2) The Register of Copyrights shall receive all fees deposited under this section and, after deducting the reasonable costs incurred by the Copyright Office under this section, shall deposit the balance in the Treasury of the United States, in such manner as the Secretary of the Treasury directs. All funds held by the Secretary of the Treasury shall be invested in interest-bearing United States securities for later distribution with interest by the Librarian of Congress in the event no controversy over distribution exists, or by a copyright arbitration royalty panel in the event a controversy over such distribution exists. (3) The royalty fees thus deposited shall, in accordance with the procedures provided by clause (4), be distributed to those among the following copyright owners who claim that their works were the subject of secondary transmissions by cable systems during the relevant semiannual period: (A) any such owner whose work was included in a secondary transmission made by a cable system of a nonnetwork television program in whole or in part beyond the local service area of the primary transmitter; and (B) any such owner whose work was included in a secondary transmission identified in a special statement of account deposited under clause (1) (A); and (C) any such owner whose work was included in nonnetwork programming consisting exclusively of aural signals carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programs. (4) The royalty fees thus deposited shall be distributed in accordance with the following procedures: (A) During the month of July in each year, every person claiming to be entitled to statutory license fees for secondary transmissions shall file a claim with the Librarian of Congress, in accordance with requirements that the Librarian of Congress shall prescribe by regulation. Notwithstanding any provisions of the antitrust laws, for purposes of this clause any claimants may agree among themselves as to the proportionate division of statutory licensing fees among them, may lump their claims together and file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf. (B) After the first day of August of each year, the Librarian of Congress shall, upon the recommendation of the Register of Copyrights, determine whether there exists a controversy concerning the distribution of royalty fees. If the Librarian determines that no such controversy exists, the Librarian shall, after deducting reasonable administrative costs under this section, distribute such fees to the copyright owners entitled to such fees, or to their designated agents. If the Librarian finds the existence of a controversy, the Librarian shall, pursuant to chapter 8 of this title, convene a copyright arbitration royalty panel to determine the distribution of royalty fees. (C) During the pendency of any proceeding under this subsection, the Librarian of Congress shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall have discretion to proceed to distribute any amounts that are not in controversy. (e) Nonsimultaneous Secondary Transmissions by Cable Systems.- (1) Notwithstanding those provisions of the second paragraph of subsection (f) relating to nonsimultaneous secondary transmissions by a cable system, any such transmissions are actionable as an act of infringement under section 501, and are fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, unless (A) the program on the videotape is transmitted no more than one time to the cable system's subscribers; and (B) the copyrighted program, episode, or motion picture videotape, including the commercials contained within such program, episode, or picture, is transmitted without deletion or editing; and (C) an owner or officer of the cable system (i) prevents the duplication of the videotape while in the possession of the system, (ii) prevents unauthorized duplication while in the possession of the facility making the videotape for the system if the system owns or controls the facility, or takes reasonable precautions to prevent such duplication if it does not own or control the facility, (iii) takes adequate precautions to prevent duplication while the tape is being transported, and (iv) subject to clause (2), erases or destroys, or causes the erasure or destruction of, the videotape; and (D) within forty-five days after the end of each calendar quarter, an owner or officer of the cable system executes an affidavit attesting (i) to the steps and precautions taken to prevent duplication of the videotape, and (ii) subject to clause (2), to the erasure or destruction of all videotapes made or used during such quarter; and (E) such owner or officer places or causes each such affidavit, and affidavits received pursuant to clause (2) (C), to be placed in a file, open to public inspection, at such system's main office in the community where the transmission is made or in the nearest community where such system maintains an office; and (F) the nonsimultaneous transmission is one that the cable system would be authorized to transmit under the rules, regulations, and authorizations of the Federal Communications Commission in effect at the time of the nonsimultaneous transmission if the transmission had been made simultaneously, except that this subclause shall not apply to inadvertent or accidental transmissions. (2) If a cable system transfers to any person a videotape of a program nonsimultaneously transmitted by it, such transfer is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, except that, pursuant to a written, nonprofit contract providing for the equitable sharing of the costs of such videotape and its transfer, a videotape nonsimultaneously transmitted by it, in accordance with clause (1), may be transferred by one cable system in Alaska to another system in Alaska, by one cable system in Hawaii permitted to make such nonsimultaneous transmissions to another such cable system in Hawaii, or by one cable system in Guam, the Northern Mariana Islands, or the Trust Territory of the Pacific Islands, to another cable system in any of those three territories, if- (A) each such contract is available for public inspection in the offices of the cable systems involved, and a copy of such contract is filed, within thirty days after such contract is entered into, with the Copyright Office (which Office shall make each such contract available for public inspection); and (B) the cable system to which the videotape is transferred complies with clause (1) (A), (B), (C) (i), (iii), and (iv), and (D) through (F); and (C) such system provides a copy of the affidavit required to be made in accordance with clause (1) (D) to each cable system making a previous nonsimultaneous transmission of the same videotape. (3) This subsection shall not be construed to supersede the exclusivity protection provisions of any existing agreement, or any such agreement hereafter entered into, between a cable system and a television broadcast station in the area in which the cable system is located, or a network with which such station is affiliated. (4) As used in this subsection, the term "videotape", and each of its variant forms, means the reproduction of the images and sounds of a program or programs broadcast by a television broadcast station licensed by the Federal Communications Commission, regardless of the nature of the material objects, such as tapes or films, in which the reproduction is embodied. (f) Definitions. As used in this section, the following terms and their variant forms mean the following: A "primary transmission" is a transmission made to the public by the transmitting facility whose signals are being received and further transmitted by the secondary transmission service, regardless of where or when the performance or display was first transmitted. A "secondary transmission" is the further transmitting of a primary transmission simultaneously with the primary transmission, or nonsimultaneously with the primary transmission if by a "cable system" not located in whole or in part within the boundary of the forty-eight contiguous States, Hawaii, or Puerto Rico: *Provided, however*, That a nonsimultaneous further transmission by a cable system located in Hawaii of a primary transmission shall be deemed to be a secondary transmission if the carriage of the television broadcast signal comprising such further transmission is permissible under the rules, regulations, or authorizations of the Federal Communications Commission. A "cable system" is a facility, located in any State, Territory, Trust Territory, or Possession, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system. The "local service area of a primary transmitter", in the case of a television broadcast station, comprises the area in which such station is entitled to insist upon its signal being retransmitted by a cable system pursuant to the rules, regulations, and authorizations of the Federal Communications Commission in effect on April 15, 1976, or such station's television market as defined in section 76.55(e) of title 47, Code of Federal Regulations (as in effect on September 18, 1993), or any modifications to such television market made, on or after September 18, 1993, pursuant to section 76.55(e) or 76.59 of title 47 of the Code of Federal Regulations, or in the case of a television broadcast station licensed by an appropriate governmental authority of Canada or Mexico, the area in which it would be entitled to insist upon its signal being retransmitted if it were a television broadcast station subject to such rules, regulations, and authorizations. In the case of a low power television station, as defined by the rules and regulations of the Federal Communications Commission, the "local service area of a primary transmitter" comprises the area within 35 miles of the transmitter site, except that in the case of such a station located in a standard metropolitan statistical area which has one of the 50 largest populations of all standard metropolitan statistical areas (based on the 1980 decennial census of population taken by the Secretary of Commerce), the number of miles shall be 20 miles. The "local service area of a primary transmitter", in the case of a radio broadcast station, comprises the primary service area of such station, pursuant to the rules and regulations of the Federal Communications Commission. A "distant signal equivalent" is the value assigned to the secondary transmission of any nonnetwork television programming carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programming. It is computed by assigning a value of one to each independent station and a value of one-quarter to each network station and noncommercial educational station for the nonnetwork programming so carried pursuant to the rules, regulations, and authorizations of the Federal Communications Commission. The foregoing values for independent, network, and noncommercial educational stations are subject, however, to the following exceptions and limitations. Where the rules and regulations of the Federal Communications Commission require a cable system to omit the further transmission of a particular program and such rules and regulations also permit the substitution of another program embodying a performance or display of a work in place of the omitted transmission, or where such rules and regulations in effect on the date of enactment of this Act permit a cable system, at its election, to effect such deletion and substitution of a nonlive program or to carry additional programs not transmitted by primary transmitters within whose local service area the cable system is located, no value shall be assigned for the substituted or additional program; where the rules, regulations, or authorizations of the Federal Communications Commission in effect on the date of enactment of this Act permit a cable system, at its election, to omit the further transmission of a particular program and such rules, regulations, or authorizations also permit the substitution of another program embodying a performance or display of a work in place of the omitted transmission, the value assigned for the substituted or additional program shall be, in the case of a live program, the value of one full distant signal equivalent multiplied by a fraction that has as its numerator the number of days in the year in which such substitution occurs and as its denominator the number of days in the year. In the case of a station carried pursuant to the late-night or specialty programming rules of the Federal Communications Commission, or a station carried on a part-time basis where full-time carriage is not possible because the cable system lacks the activated channel capacity to retransmit on a full-time basis all signals which it is authorized to carry, the values for independent, network, and noncommercial educational stations set forth above, as the case may be, shall be multiplied by a fraction which is equal to the ratio of the broadcast hours of such station carried by the cable system to the total broadcast hours of the station. A "network station" is a television broadcast station that is owned or operated by, or affiliated with, one or more of the television networks in the United States providing nationwide transmissions, and that transmits a substantial part of the programming supplied by such networks for a substantial part of that station's typical broadcast day. An "independent station" is a commercial television broadcast station other than a network station. A "noncommercial educational station" is a television station that is a noncommercial educational broadcast station as defined in section 397 of title 47. Section 112. Limitations on exclusive rights: Ephemeral recordings [44] (a)(1) Notwithstanding the provisions of section 106, and except in the case of a motion picture or other audiovisual work, it is not an infringement of copyright for a transmitting organization entitled to transmit to the public a performance or display of a work, under a license, including a statutory license under section 114(f), or transfer of the copyright or under the limitations on exclusive rights in sound recordings specified by section 114 (a) or for a transmitting organization that is a broadcast radio or television station licensed as such by the Federal Communications Commission and that makes a broadcast transmission of a performance of a sound recording in a digital format on a nonsubscription basis, to make no more than one copy or phonorecord of a particular transmission program embodying the performance or display, if- (A) the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and (B) the copy or phonorecord is used solely for the transmitting organization's own transmissions within its local service area, or for purposes of archival preservation or security; and (C) unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the transmission program was first transmitted to the public. (2) In a case in which a transmitting organization entitled to make a copy or phonorecord under paragraph (1) in connection with the transmission to the public of a performance or display of a work is prevented from making such copy or phonorecord by reason of the application by the copyright owner of technical measures that prevent the reproduction of the work, the copyright owner shall make available to the transmitting organization the necessary means for permitting the making of such copy or phonorecord as permitted under that paragraph, if it is technologically feasible and economically reasonable for the copyright owner to do so. If the copyright owner fails to do so in a timely manner in light of the transmitting organization's reasonable business requirements, the transmitting organization shall not be liable for a violation of section 1201(a)(1) of this title for engaging in such activities as are necessary to make such copies or phonorecords as permitted under paragraph (1) of this subsection. (b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance or display of a work, under section 110(2) or under the limitations on exclusive rights in sound recordings specified by section 114(a), to make no more than thirty copies or phonorecords of a particular transmission program embodying the performance or display, if (1) no further copies or phonorecords are reproduced from the copies or phonorecords made under this clause; and (2) except for one copy or phonorecord that may be preserved exclusively for archival purposes, the copies or phonorecords are destroyed within seven years from the date the transmission program was first transmitted to the public. (c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization to make for distribution no more than one copy or phonorecord, for each transmitting organization specified in clause (2) of this subsection, of a particular transmission program embodying a performance of a nondramatic musical work of a religious nature, or of a sound recording of such a musical work, if- (1) there is no direct or indirect charge for making or distributing any such copies or phonorecords; and (2) none of such copies or phonorecords is used for any performance other than a single transmission to the public by a transmitting organization entitled to transmit to the public a performance of the work under a license or transfer of the copyright; and (3) except for one copy or phonorecord that may be preserved exclusively for archival purposes, the copies or phonorecords are all destroyed within one year from the date the transmission program was first transmitted to the public. (d) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance of a work under section 110(8) to make no more than ten copies or phonorecords embodying the performance, or to permit the use of any such copy or phonorecord by any governmental body or nonprofit organization entitled to transmit a performance of a work under section 110(8), if- (1) any such copy or phonorecord is retained and used solely by the organization that made it, or by a governmental body or nonprofit organization entitled to transmit a performance of a work under section 110(8), and no further copies or phonorecords are reproduced from it; and (2) any such copy or phonorecord is used solely for transmissions authorized under section 110(8), or for purposes of archival preservation or security; and (3) the governmental body or nonprofit organization permitting any use of any such copy or phonorecord by any governmental body or nonprofit organization under this subsection does not make any charge for such use. (e) Statutory License. (1) A transmitting organization entitled to transmit to the public a performance of a sound recording under the limitation on exclusive rights specified by section 114(d)(1)(C)(iv) or under a statutory license in accordance with section 114(f) is entitled to a statutory license, under the conditions specified by this subsection, to make no more than 1 phonorecord of the sound recording (unless the terms and conditions of the statutory license allow for more), if the following conditions are satisfied: (A) The phonorecord is retained and used solely by the transmitting organization that made it, and no further phonorecords are reproduced from it. (B) The phonorecord is used solely for the transmitting organization's own transmissions originating in the United States under a statutory license in accordance with section 114(f) or the limitation on exclusive rights specified by section 114(d)(1)(C)(iv). (C) Unless preserved exclusively for purposes of archival preservation, the phonorecord is destroyed within 6 months from the date the sound recording was first transmitted to the public using the phonorecord. (D) Phonorecords of the sound recording have been distributed to the public under the authority of the copyright owner or the copyright owner authorizes the transmitting entity to transmit the sound recording, and the transmitting entity makes the phonorecord under this subsection from a phonorecord lawfully made and acquired under the authority of the copyright owner. (2) Notwithstanding any provision of the antitrust laws, any copyright owners of sound recordings and any transmitting organizations entitled to a statutory license under this subsection may negotiate and agree upon royalty rates and license terms and conditions for making phonorecords of such sound recordings under this section and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay, or receive such royalty payments. (3) No later than 30 days after the date of the enactment of the Digital Millennium Copyright Act, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for the activities specified by paragraph (1) of this subsection during the period beginning on the date of the enactment of such Act and ending on December 31, 2000, or such other date as the parties may agree. Such rates shall include a minimum fee for each type of service offered by transmitting organizations. Any copyright owners of sound recordings or any transmitting organizations entitled to a statutory license under this subsection may submit to the Librarian of Congress licenses covering such activities with respect to such sound recordings. The parties to each negotiation proceeding shall bear their own costs. (4) In the absence of license agreements negotiated under paragraph (2), during the 60-day period commencing 6 months after publication of the notice specified in paragraph (3), and upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of reasonable rates and terms which, subject to paragraph (5), shall be binding on all copyright owners of sound recordings and transmitting organizations entitled to a statutory license under this subsection during the period beginning on the date of the enactment of the Digital Millennium Copyright Act and ending on December 31, 2000, or such other date as the parties may agree. Such rates shall include a minimum fee for each type of service offered by transmitting organizations. The copyright arbitration royalty panel shall establish rates that most clearly represent the fees that would have been negotiated in the marketplace between a willing buyer and a willing seller. In determining such rates and terms, the copyright arbitration royalty panel shall base its decision on economic, competitive, and programming information presented by the parties, including- (A) whether use of the service may substitute for or may promote the sales of phonorecords or otherwise interferes with or enhances the copyright owner's traditional streams of revenue; and (B) the relative roles of the copyright owner and the transmitting organization in the copyrighted work and the service made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, and risk. In establishing such rates and terms, the copyright arbitration royalty panel may consider the rates and terms under voluntary license agreements negotiated as provided in paragraphs (2) and (3). The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their sound recordings under this section, and under which records of such use shall be kept and made available by transmitting organizations entitled to obtain a statutory license under this subsection. (5) License agreements voluntarily negotiated at any time between 1 or more copyright owners of sound recordings and 1 or more transmitting organizations entitled to obtain a statutory license under this subsection shall be given effect in lieu of any determination by a copyright arbitration royalty panel or decision by the Librarian of Congress. (6) Publication of a notice of the initiation of voluntary negotiation proceedings as specified in paragraph (3) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, in the first week of January 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with paragraph (3). The procedures specified in paragraph (4) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, upon filing of a petition in accordance with section 803(a) (1), during a 60-day period commencing on July 1, 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with paragraph (3). The procedures specified in paragraph (4) shall be concluded in accordance with section 802. (7)(A) Any person who wishes to make a phonorecord of a sound recording under a statutory license in accordance with this subsection may do so without infringing the exclusive right of the copyright owner of the sound recording under section 106(1) (i) by complying with such notice requirements as the Librarian of Congress shall prescribe by regulation and by paying royalty fees in accordance with this subsection; or (ii) if such royalty fees have not been set, by agreeing to pay such royalty fees as shall be determined in accordance with this subsection. (B) Any royalty payments in arrears shall be made on or before the 20th day of the month next succeeding the month in which the royalty fees are set. (8) If a transmitting organization entitled to make a phonorecord under this subsection is prevented from making such phonorecord by reason of the application by the copyright owner of technical measures that prevent the reproduction of the sound recording, the copyright owner shall make available to the transmitting organization the necessary means for permitting the making of such phonorecord as permitted under this subsection, if it is technologically feasible and economically reasonable for the copyright owner to do so. If the copyright owner fails to do so in a timely manner in light of the transmitting organization's reasonable business requirements, the transmitting organization shall not be liable for a violation of section 1201(a)(1) of this title for engaging in such activities as are necessary to make such phonorecords as permitted under this subsection. (9) Nothing in this subsection annuls, limits, impairs, or otherwise affects in any way the existence or value of any of the exclusive rights of the copyright owners in a sound recording, except as otherwise provided in this subsection, or in a musical work, including the exclusive rights to reproduce and distribute a sound recording or musical work, including by means of a digital phonorecord delivery, under section 106(1), 106(3), and 115, and the right to perform publicly a sound recording or musical work, including by means of a digital audio transmission, under sections 106(4) and 106(6). (f) The transmission program embodied in a copy or phonorecord made under this section is not subject to protection as a derivative work under this title except with the express consent of the owners of copyright in the preexisting works employed in the program. Section 113. Scope of exclusive rights in pictorial, graphic, and sculptural works [45] (a) Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 includes the right to reproduce the work in or on any kind of article, whether useful or otherwise. (b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title. (c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports. (d)(1) In a case in which- (A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and (B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply. (2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author's rights under paragraphs (2) and (3) of section 106A(a) shall apply unless- (A) the owner has made a diligent, good faith attempt without success to notify the author of the owner's intended action affecting the work of visual art, or (B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal. For purposes of subparagraph (A), an owner shall be presumed to have made a diligent, good faith attempt to send notice if the owner sent such notice by registered mail to the author at the most recent address of the author that was recorded with the Register of Copyrights pursuant to paragraph (3). If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author. (3) The Register of Copyrights shall establish a system of records whereby any author of a work of visual art that has been incorporated in or made part of a building, may record his or her identity and address with the Copyright Office. The Register shall also establish procedures under which any such author may update the information so recorded, and procedures under which owners of buildings may record with the Copyright Office evidence of their efforts to comply with this subsection. Section 114. Scope of exclusive rights in sound recordings [46] (a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (2), (3) and (6) of section 106, and do not include any right of performance under section 106(4). (b) The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. The exclusive rights of the owner of copyright in a sound recording under clauses (1), (2), and (3) of section 106 do not apply to sound recordings included in educational television and radio programs (as defined in section 397 of title 47) distributed or transmitted by or through public broadcasting entities (as defined by section 118(g)): *Provided*, That copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public. (c) This section does not limit or impair the exclusive right to perform publicly, by means of a phonorecord, any of the works specified by section 106(4). (d) Limitations on Exclusive Right. Notwithstanding the provisions of section 106(6)- (1) Exempt transmissions and retransmissions. The performance of a sound recording publicly by means of a digital audio transmission, other than as a part of an interactive service, is not an infringement of section 106(6) if the performance is part of- (A) a nonsubscription broadcast transmission; (B) a retransmission of a nonsubscription broadcast transmission: *Provided*, That, in the case of a retransmission of a radio station's broadcast transmission- (i) the radio station's broadcast transmission is not willfully or repeatedly retransmitted more than a radius of 150 miles from the site of the radio broadcast transmitter, however- (I) the 150 mile limitation under this clause shall not apply when a nonsubscription broadcast transmission by a radio station licensed by the Federal Communications Commission is retransmitted on a non- subscription basis by a terrestrial broadcast station, terrestrial translator, or terrestrial repeater licensed by the Federal Communications Commission; and (II) in the case of a subscription retransmission of a non-subscription broadcast retransmission covered by subclause (I), the 150 mile radius shall be measured from the transmitter site of such broadcast retransmitter; (ii) the retransmission is of radio station broadcast transmissions that are (I) obtained by the retransmitter over the air; (II) not electronically processed by the retransmitter to deliver separate and discrete signals; and (III) retransmitted only within the local communities served by the retransmitter; (iii) the radio station's broadcast transmission was being retransmitted to cable systems (as defined in section 111(f)) by a satellite carrier on January 1, 1995, and that retransmission was being retransmitted by cable systems as a separate and discrete signal, and the satellite carrier obtains the radio station's broadcast transmission in an analog format: *Provided*, That the broadcast transmission being retransmitted may embody the programming of no more than one radio station; or (iv) the radio station's broadcast transmission is made by a noncommercial educational broadcast station funded on or after January 1, 1995, under section 396(k) of the Communications Act of 1934 (47 U.S.C. 396(k)), consists solely of noncommercial educational and cultural radio programs, and the retransmission, whether or not simultaneous, is a nonsubscription terrestrial broadcast retransmission; or (C) a transmission that comes within any of the following categories- (i) a prior or simultaneous transmission incidental to an exempt transmission, such as a feed received by and then retransmitted by an exempt transmitter: *Provided*, That such incidental transmissions do not include any subscription transmission directly for reception by members of the public; (ii) a transmission within a business establishment, confined to its premises or the immediately surrounding vicinity; (iii) a retransmission by any retransmitter, including a multichannel video programming distributor as defined in section 602(12) of the Communications Act of 1934 (47 U.S.C. 522 (12)), of a transmission by a transmitter licensed to publicly perform the sound recording as a part of that transmission, if the retransmission is simultaneous with the licensed transmission and authorized by the transmitter; or (iv) a transmission to a business establishment for use in the ordinary course of its business: *Provided*, That the business recipient does not retransmit the transmission outside of its premises or the immediately surrounding vicinity, and that the transmission does not exceed the sound recording performance complement. Nothing in this clause shall limit the scope of the exemption in clause (ii). (2) Statutory licensing of certain transmissions.- The performance of a sound recording publicly by means of a subscription digital audio transmission not exempt under paragraph (1), an eligible nonsubscription transmission, or a transmission not exempt under paragraph (1) that is made by a preexisting satellite digital audio radio service shall be subject to statutory licensing, in accordance with subsection (f) if- (A)(i) the transmission is not part of an interactive service; (ii) except in the case of a transmission to a business establishment, the transmitting entity does not automatically and intentionally cause any device receiving the transmission to switch from one program channel to another; and (iii) except as provided in section 1002(e), the transmission of the sound recording is accompanied, if technically feasible, by the information encoded in that sound recording, if any, by or under the authority of the copyright owner of that sound recording, that identifies the title of the sound recording, the featured recording artist who performs on the sound recording, and related information, including information concerning the underlying musical work and its writer; (B) in the case of a subscription transmission not exempt under paragraph (1) that is made by a preexisting subscription service in the same transmission medium used by such service on July 31, 1998, or in the case of a transmission not exempt under paragraph (1) that is made by a preexisting satellite digital audio radio service- (i) the transmission does not exceed the sound recording performance complement; and (ii) the transmitting entity does not cause to be published by means of an advance program schedule or prior announcement the titles of the specific sound recordings or phonorecords embodying such sound recordings to be transmitted; and (C) in the case of an eligible nonsubscription transmission or a subscription transmission not exempt under paragraph (1) that is made by a new subscription service or by a preexisting subscription service other than in the same transmission medium used by such service on July 31, 1998- (i) the transmission does not exceed the sound recording performance complement, except that this requirement shall not apply in the case of a retransmission of a broadcast transmission if the retransmission is made by a transmitting entity that does not have the right or ability to control the programming of the broadcast station making the broadcast transmission, unless- (I) the broadcast station makes broadcast transmissions- (aa) in digital format that regularly exceed the sound recording performance complement; or (bb) in analog format, a substantial portion of which, on a weekly basis, exceed the sound recording performance complement; and (II) the sound recording copyright owner or its representative has notified the transmitting entity in writing that broadcast transmissions of the copyright owner's sound recordings exceed the sound recording performance complement as provided in this clause; (ii) the transmitting entity does not cause to be published, or induce or facilitate the publication, by means of an advance program schedule or prior announcement, the titles of the specific sound recordings to be transmitted, the phonorecords embodying such sound recordings, or, other than for illustrative purposes, the names of the featured recording artists, except that this clause does not disqualify a transmitting entity that makes a prior announcement that a particular artist will be featured within an unspecified future time period, and in the case of a retransmission of a broadcast transmission by a transmitting entity that does not have the right or ability to control the programming of the broadcast transmission, the requirement of this clause shall not apply to a prior oral announcement by the broadcast station, or to an advance program schedule published, induced, or facilitated by the broadcast station, if the transmitting entity does not have actual knowledge and has not received written notice from the copyright owner or its representative that the broadcast station publishes or induces or facilitates the publication of such advance program schedule, or if such advance program schedule is a schedule of classical music programming published by the broadcast station in the same manner as published by that broadcast station on or before September 30, 1998; (iii) the transmission- (I) is not part of an archived program of less than 5 hours duration; (II) is not part of an archived program of 5 hours or greater in duration that is made available for a period exceeding 2 weeks; (III) is not part of a continuous program which is of less than 3 hours duration; or (IV) is not part of an identifiable program in which performances of sound recordings are rendered in a predetermined order, other than an archived or continuous program, that is transmitted at- (aa) more than 3 times in any 2-week period that have been publicly announced in advance, in the case of a program of less than 1 hour in duration, or (bb) more than 4 times in any 2-week period that have been publicly announced in advance, in the case of a program of 1 hour or more in duration, except that the requirement of this subclause shall not apply in the case of a retransmission of a broadcast transmission by a transmitting entity that does not have the right or ability to control the programming of the broadcast transmission, unless the transmitting entity is given notice in writing by the copyright owner of the sound recording that the broadcast station makes broadcast transmissions that regularly violate such requirement; (iv) the transmitting entity does not knowingly perform the sound recording, as part of a service that offers transmissions of visual images contemporaneously with transmissions of sound recordings, in a manner that is likely to cause confusion, to cause mistake, or to deceive, as to the affiliation, connection, or association of the copyright owner or featured recording artist with the transmitting entity or a particular product or service advertised by the transmitting entity, or as to the origin, sponsorship, or approval by the copyright owner or featured recording artist of the activities of the transmitting entity other than the performance of the sound recording itself; (v) the transmitting entity cooperates to prevent, to the extent feasible without imposing substantial costs or burdens, a transmission recipient or any other person or entity from automatically scanning the transmitting entity's transmissions alone or together with transmissions by other transmitting entities in order to select a particular sound recording to be transmitted to the transmission recipient, except that the requirement of this clause shall not apply to a satellite digital audio service that is in operation, or that is licensed by the Federal Communications Commission, on or before July 31, 1998; (vi) the transmitting entity takes no affirmative steps to cause or induce the making of a phonorecord by the transmission recipient, and if the technology used by the transmitting entity enables the transmitting entity to limit the making by the transmission recipient of phonorecords of the transmission directly in a digital format, the transmitting entity sets such technology to limit such making of phonorecords to the extent permitted by such technology; (vii) phonorecords of the sound recording have been distributed to the public under the authority of the copyright owner or the copyright owner authorizes the transmitting entity to transmit the sound recording, and the transmitting entity makes the transmission from a phonorecord lawfully made under the authority of the copyright owner, except that the requirement of this clause shall not apply to a retransmission of a broadcast transmission by a transmitting entity that does not have the right or ability to control the programming of the broadcast transmission, unless the transmitting entity is given notice in writing by the copyright owner of the sound recording that the broadcast station makes broadcast transmissions that regularly violate such requirement; (viii) the transmitting entity accommodates and does not interfere with the transmission of technical measures that are widely used by sound recording copyright owners to identify or protect copyrighted works, and that are technically feasible of being transmitted by the transmitting entity without imposing substantial costs on the transmitting entity or resulting in perceptible aural or visual degradation of the digital signal, except that the requirement of this clause shall not apply to a satellite digital audio service that is in operation, or that is licensed under the authority of the Federal Communications Commission, on or before July 31, 1998, to the extent that such service has designed, developed, or made commitments to procure equipment or technology that is not compatible with such technical measures before such technical measures are widely adopted by sound recording copyright owners; and (ix) the transmitting entity identifies in textual data the sound recording during, but not before, the time it is performed, including the title of the sound recording, the title of the phonorecord embodying such sound recording, if any, and the featured recording artist, in a manner to permit it to be displayed to the transmission recipient by the device or technology intended for receiving the service provided by the transmitting entity, except that the obligation in this clause shall not take effect until 1 year after the date of the enactment of the Digital Millennium Copyright Act and shall not apply in the case of a retransmission of a broadcast transmission by a transmitting entity that does not have the right or ability to control the programming of the broadcast transmission, or in the case in which devices or technology intended for receiving the service provided by the transmitting entity that have the capability to display such textual data are not common in the marketplace. (3) Licenses for transmissions by interactive services.- (A) No interactive service shall be granted an exclusive license under section 106(6) for the performance of a sound recording publicly by means of digital audio transmission for a period in excess of 12 months, except that with respect to an exclusive license granted to an interactive service by a licensor that holds the copyright to 1,000 or fewer sound recordings, the period of such license shall not exceed 24 months: *Provided, however*, That the grantee of such exclusive license shall be ineligible to receive another exclusive license for the performance of that sound recording for a period of 13 months from the expiration of the prior exclusive license. (B) The limitation set forth in subparagraph (A) of this paragraph shall not apply if- (i) the licensor has granted and there remain in effect licenses under section 106(6) for the public performance of sound recordings by means of digital audio transmission by at least 5 different interactive services; *Provided, however*, That each such license must be for a minimum of 10 percent of the copyrighted sound recordings owned by the licensor that have been licensed to interactive services, but in no event less than 50 sound recordings; or (ii) the exclusive license is granted to perform publicly up to 45 seconds of a sound recording and the sole purpose of the performance is to promote the distribution or performance of that sound recording. (C) Notwithstanding the grant of an exclusive or nonexclusive license of the right of public performance under section 106(6), an interactive service may not publicly perform a sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the sound recording: *Provided*, That such license to publicly perform the copyrighted musical work may be granted either by a performing rights society representing the copyright owner or by the copyright owner. (D) The performance of a sound recording by means of a retransmission of a digital audio transmission is not an infringement of section 106(6) if- (i) the retransmission is of a transmission by an interactive service licensed to publicly perform the sound recording to a particular member of the public as part of that transmission; and (ii) the retransmission is simultaneous with the licensed transmission, authorized by the transmitter, and limited to that particular member of the public intended by the interactive service to be the recipient of the transmission. (E) For the purposes of this paragraph- (i) a "licensor" shall include the licensing entity and any other entity under any material degree of common ownership, management, or control that owns copyrights in sound recordings; and (ii) a "performing rights society" is an association or corporation that licenses the public performance of nondramatic musical works on behalf of the copyright owner, such as the American Society of Composers, Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc. (4) Rights not otherwise limited.- (A) Except as expressly provided in this section, this section does not limit or impair the exclusive right to perform a sound recording publicly by means of a digital audio transmission under section 106(6). (B) Nothing in this section annuls or limits in any way- (i) the exclusive right to publicly perform a musical work, including by means of a digital audio transmission, under section 106(4); (ii) the exclusive rights in a sound recording or the musical work embodied therein under sections 106(1), 106(2) and 106(3); or (iii) any other rights under any other clause of section 106, or remedies available under this title as such rights or remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995. (C) Any limitations in this section on the exclusive right under section 106(6) apply only to the exclusive right under section 106(6) and not to any other exclusive rights under section 106. Nothing in this section shall be construed to annul, limit, impair or otherwise affect in any way the ability of the owner of a copyright in a sound recording to exercise the rights under sections 106(1), 106(2) and 106(3), or to obtain the remedies available under this title pursuant to such rights, as such rights and remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995. (e) Authority for Negotiations.- (1) Notwithstanding any provision of the antitrust laws, in negotiating statutory licenses in accordance with subsection (f), any copyright owners of sound recordings and any entities performing sound recordings affected by this section may negotiate and agree upon the royalty rates and license terms and conditions for the performance of such sound recordings and the proportionate division of fees paid among copyright owners, and may designate common agents on a nonexclusive basis to negotiate, agree to, pay, or receive payments. (2) For licenses granted under section 106(6), other than statutory licenses, such as for performances by interactive services or performances that exceed the sound recording performance complement (A) copyright owners of sound recordings affected by this section may designate common agents to act on their behalf to grant licenses and receive and remit royalty payments: *Provided*, That each copyright owner shall establish the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other copyright owners of sound recordings; and (B) entities performing sound recordings affected by this section may designate common agents to act on their behalf to obtain licenses and collect and pay royalty fees: *Provided*, That each entity performing sound recordings shall determine the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other entities performing sound recordings. (f) Licenses for Certain Nonexempt Transmissions. [47] (1)(A) [48] No later than 30 days after the enactment of the Digital Performance Right in Sound Recordings Act of 1995, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for subscription transmissions by preexisting subscription services and transmissions by preexisting satellite digital audio radio services specified by subsection (d)(2) of this section during the period beginning on the effective date of such Act and ending on December 31, 2001, or, if a copyright arbitration royalty panel is convened, ending 30 days after the Librarian issues and publishes in the Federal Register an order adopting the determination of the copyright arbitration royalty panel or an order setting the terms and rates (if the Librarian rejects the panel's determination). Such terms and rates shall distinguish among the different types of digital audio transmission services then in operation. Any copyright owners of sound recordings, preexisting subscription services, or preexisting satellite digital audio radio services may submit to the Librarian of Congress licenses covering such subscription transmissions with respect to such sound recordings. The parties to each negotiation proceeding shall bear their own costs. (B) In the absence of license agreements negotiated under subparagraph (A), during the 60-day period commencing 6 months after publication of the notice specified in subparagraph (A), and upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of rates and terms which, subject to paragraph (3), shall be binding on all copyright owners of sound recordings and entities performing sound recordings affected by this paragraph. In establishing rates and terms for preexisting subscription services and preexisting satellite digital audio radio services, in addition to the objectives set forth in section 801(b)(1), the copyright arbitration royalty panel may consider the rates and terms for comparable types of subscription digital audio transmission services and comparable circumstances under voluntary license agreements negotiated as provided in subparagraph (A). (C)(i) Publication of a notice of the initiation of voluntary negotiation proceedings as specified in subparagraph (A) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe- (I) no later than 30 days after a petition is filed by any copyright owners of sound recordings, any preexisting subscription services, or any preexisting satellite digital audio radio services indicating that a new type of subscription digital audio transmission service on which sound recordings are performed is or is about to become operational; and (II) in the first week of January 2001, and at 5-year intervals thereafter. (ii) The procedures specified in subparagraph (B) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, upon filing of a petition in accordance with section 803(a) (1) during a 60-day period commencing- (I) 6 months after publication of a notice of the initiation of voluntary negotiation proceedings under subparagraph (A) pursuant to a petition under clause (i)(I) of this subparagraph; or (II) on July 1, 2001, and at 5-year intervals thereafter. (iii) The procedures specified in subparagraph (B) shall be concluded in accordance with section 802. (2)(A) No later than 30 days after the date of the enactment of the Digital Millennium Copyright Act, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for public performances of sound recordings by means of eligible nonsubscription transmissions and transmissions by new subscription services specified by subsection (d)(2) during the period beginning on the date of the enactment of such Act and ending on December 31, 2000, or such other date as the parties may agree. Such rates and terms shall distinguish among the different types of eligible nonsubscription transmission services and new subscription services then in operation and shall include a minimum fee for each such type of service. Any copyright owners of sound recordings or any entities performing sound recordings affected by this paragraph may submit to the Librarian of Congress licenses covering such eligible nonsubscription transmissions and new subscription services with respect to such sound recordings. The parties to each negotiation proceeding shall bear their own costs. (B) In the absence of license agreements negotiated under subparagraph (A), during the 60-day period commencing 6 months after publication of the notice specified in subparagraph (A), and upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of rates and terms which, subject to paragraph (3), shall be binding on all copyright owners of sound recordings and entities performing sound recordings affected by this paragraph during the period beginning on the date of the enactment of the Digital Millennium Copyright Act and ending on December 31, 2000, or such other date as the parties may agree. Such rates and terms shall distinguish among the different types of eligible nonsubscription transmission services then in operation and shall include a minimum fee for each such type of service, such differences to be based on criteria including, but not limited to, the quantity and nature of the use of sound recordings and the degree to which use of the service may substitute for or may promote the purchase of phonorecords by consumers. In establishing rates and terms for transmissions by eligible nonsubscription services and new subscription services, the copyright arbitration royalty panel shall establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller. In determining such rates and terms, the copyright arbitration royalty panel shall base its decision on economic, competitive and programming information presented by the parties, including- (i) whether use of the service may substitute for or may promote the sales of phonorecords or otherwise may interfere with or may enhance the sound recording copyright owner's other streams of revenue from its sound recordings; and (ii) the relative roles of the copyright owner and the transmitting entity in the copyrighted work and the service made available to the public with respect to relative creative contribution, technological contribution, capital in-vestment, cost, and risk. In establishing such rates and terms, the copyright arbitration royalty panel may consider the rates and terms for comparable types of digital audio transmission services and comparable circumstances under voluntary license agreements negotiated under subparagraph (A). (C)(i) Publication of a notice of the initiation of voluntary negotiation proceedings as specified in subparagraph (A) shall be repeated in accordance with regulations that the Librarian of Congress shall prescribe- (I) no later than 30 days after a petition is filed by any copyright owners of sound recordings or any eligible nonsubscription service or new subscription service indicating that a new type of eligible nonsubscription service or new subscription service on which sound recordings are performed is or is about to become operational; and (II) in the first week of January 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with subparagraph (A). (ii) The procedures specified in subparagraph (B) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, upon filing of a petition in accordance with section 803(a) (1) during a 60-day period commencing- (I) 6 months after publication of a notice of the initiation of voluntary negotiation proceedings under subparagraph (A) pursuant to a petition under clause (i)(I); or (II) on July 1, 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with subparagraph (A). (iii) The procedures specified in subparagraph (B) shall be concluded in accordance with section 802. (3) License agreements voluntarily negotiated at any time between 1 or more copyright owners of sound recordings and 1 or more entities performing sound recordings shall be given effect in lieu of any determination by a copyright arbitration royalty panel or decision by the Librarian of Congress. (4)(A) The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their sound recordings under this section, and under which records of such use shall be kept and made available by entities performing sound recordings. (B) Any person who wishes to perform a sound recording publicly by means of a transmission eligible for statutory licensing under this subsection may do so without infringing the exclusive right of the copyright owner of the sound recording- (i) by complying with such notice requirements as the Librarian of Congress shall prescribe by regulation and by paying royalty fees in accordance with this subsection; or (ii) if such royalty fees have not been set, by agreeing to pay such royalty fees as shall be determined in accordance with this subsection. (C) Any royalty payments in arrears shall be made on or before the twentieth day of the month next succeeding the month in which the royalty fees are set. (g) Proceeds From Licensing of Transmissions.- (1) Except in the case of a transmission licensed under a statutory license in accordance with subsection (f) of this section- (A) a featured recording artist who performs on a sound recording that has been licensed for a transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the artist's contract; and (B) a nonfeatured recording artist who performs on a sound recording that has been licensed for a transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the nonfeatured recording artist's applicable contract or other applicable agreement. (2) The copyright owner of the exclusive right under section 106(6) of this title to publicly perform a sound recording by means of a digital audio transmission shall allocate to recording artists in the following manner its receipts from the statutory licensing of transmission performances of the sound recording in accordance with subsection (f) of this section: (A) 21/2 percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians) who have performed on sound recordings. (B) 21/2 percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists) who have performed on sound recordings. (C) 45 percent of the receipts shall be allocated, on a per sound recording basis, to the recording artist or artists featured on such sound recording (or the persons conveying rights in the artists' performance in the sound recordings). (h) Licensing to Affiliates.- (1) If the copyright owner of a sound recording licenses an affiliated entity the right to publicly perform a sound recording by means of a digital audio transmission under section 106(6), the copyright owner shall make the licensed sound recording available under section 106(6) on no less favorable terms and conditions to all bona fide entities that offer similar services, except that, if there are material differences in the scope of the requested license with respect to the type of service, the particular sound recordings licensed, the frequency of use, the number of subscribers served, or the duration, then the copyright owner may establish different terms and conditions for such other services. (2) The limitation set forth in paragraph (1) of this subsection shall not apply in the case where the copyright owner of a sound recording licenses- (A) an interactive service; or (B) an entity to perform publicly up to 45 seconds of the sound recording and the sole purpose of the performance is to promote the distribution or performance of that sound recording. (i) No Effect on Royalties for Underlying Works. License fees payable for the public performance of sound recordings under section 106(6) shall not be taken into account in any administrative, judicial, or other governmental proceeding to set or adjust the royalties payable to copyright owners of musical works for the public performance of their works. It is the intent of Congress that royalties payable to copyright owners of musical works for the public performance of their works shall not be diminished in any respect as a result of the rights granted by section 106(6). (j) Definitions. As used in this section, the following terms have the following meanings: (l) An "affiliated entity" is an entity engaging in digital audio transmissions covered by section 106(6), other than an interactive service, in which the licensor has any direct or indirect partnership or any ownership interest amounting to 5 percent or more of the outstanding voting or non-voting stock. (2) An "archived program" is a predetermined program that is available repeatedly on the demand of the transmission recipient and that is performed in the same order from the beginning, except that an archived program shall not include a re-corded event or broadcast transmission that makes no more than an incidental use of sound recordings, as long as such recorded event or broadcast transmission does not contain an entire sound recording or feature a particular sound recording. (3) A "broadcast" transmission is a transmission made by a terrestrial broadcast station licensed as such by the Federal Communications Commission. (4) A "continuous program" is a predetermined program that is continuously performed in the same order and that is accessed at a point in the program that is beyond the control of the transmission recipient. (5) A "digital audio transmission" is a digital transmission as defined in section 101, that embodies the transmission of a sound recording. This term does not include the transmission of any audiovisual work. (6) An "eligible nonsubscription transmission" is a noninteractive nonsubscription digital audio transmission not exempt under subsection (d)(1) that is made as part of a service that provides audio programming consisting, in whole or in part, of performances of sound recordings, including retransmissions of broadcast transmissions, if the primary purpose of the service is to provide to the public such audio or other entertainment programming, and the primary purpose of the service is not to sell, advertise, or promote particular products or services other than sound recordings, live concerts, or other music-related events. (7) An "interactive service" is one that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large, or in the case of a subscription service, by all subscribers of the service, does not make a service interactive, if the programming on each channel of the service does not substantially consist of sound recordings that are performed within 1 hour of the request or at a time designated by either the transmitting entity or the individual making such request. If an entity offers both interactive and noninteractive services (either concurrently or at different times), the noninteractive component shall not be treated as part of an interactive service. (8) A "new subscription service" is a service that performs sound recordings by means of noninteractive subscription digital audio transmissions and that is not a preexisting subscription service or a preexisting satellite digital audio radio service. (9) A "nonsubscription" transmission is any transmission that is not a subscription transmission. (10) A "preexisting satellite digital audio radio service" is a subscription satellite digital audio radio service provided pursuant to a satellite digital audio radio service license issued by the Federal Communications Commission on or before July 31, 1998, and any renewal of such license to the extent of the scope of the original license, and may include a limited number of sample channels representative of the subscription service that are made available on a nonsubscription basis in order to promote the subscription service. (11) A "preexisting subscription service" is a service that performs sound recordings by means of noninteractive audio-only subscription digital audio transmissions, which was in existence and was making such transmissions to the public for a fee on or before July 31, 1998, and may include a limited number of sample channels representative of the subscription service that are made available on a nonsubscription basis in order to promote the subscription service. (12) A "retransmission" is a further transmission of an initial transmission, and includes any further retransmission of the same transmission. Except as provided in this section, a transmission qualifies as a "retransmission" only if it is simultaneous with the initial transmission. Nothing in this definition shall be construed to exempt a transmission that fails to satisfy a separate element required to qualify for an exemption under section 114(d)(1). (13) The "sound recording performance complement" is the transmission during any 3-hour period, on a particular channel used by a transmitting entity, of no more than- (A) 3 different selections of sound recordings from any one phonorecord lawfully distributed for public performance or sale in the United States, if no more than 2 such selections are transmitted consecutively; or (B) 4 different selections of sound recordings- (i) by the same featured recording artist; or (ii) from any set or compilation of phonorecords lawfully distributed together as a unit for public performance or sale in the United States, if no more than three such selections are transmitted consecutively: *Provided*, That the transmission of selections in excess of the numerical limits provided for in clauses (A) and (B) from multiple phonorecords shall nonetheless qualify as a sound recording performance complement if the programming of the multiple phonorecords was not willfully intended to avoid the numerical limitations prescribed in such clauses. (14) A "subscription" transmission is a transmission that is controlled and limited to particular recipients, and for which consideration is required to be paid or otherwise given by or on behalf of the recipient to receive the transmission or a package of transmissions including the transmission. (15) A "transmission" is either an initial transmission or a retransmission. Section 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords [49] In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section. (a) Availability and Scope of Compulsory License.- (1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery. A person may not obtain a compulsory license for use of the work in the making of phonorecords duplicating a sound recording fixed by another, unless: (i) such sound recording was fixed lawfully; and (ii) the making of the phonorecords was authorized by the owner of copyright in the sound recording or, if the sound recording was fixed before February 15, 1972, by any person who fixed the sound recording pursuant to an express license from the owner of the copyright in the musical work or pursuant to a valid compulsory license for use of such work in a sound recording. (2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner. (b) Notice of Intention to Obtain Compulsory License.- (1) Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after making, and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner. If the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. (2) Failure to serve or file the notice required by clause (1) forecloses the possibility of a compulsory license and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509. (c) Royalty Payable Under Compulsory License. [50]- (1) To be entitled to receive royalties under a compulsory license, the copyright owner must be identified in the registration or other public records of the Copyright Office. The owner is entitled to royalties for phonorecords made and distributed after being so identified, but is not entitled to recover for any phonorecords previously made and distributed. (2) Except as provided by clause (1), the royalty under a compulsory license shall be payable for every phonorecord made and distributed in accordance with the license. For this purpose, and other than as provided in paragraph (3), a phonorecord is considered "distributed" if the person exercising the compulsory license has voluntarily and permanently parted with its possession. With respect to each work embodied in the phonorecord, the royalty shall be either two and three- fourths cents, or one-half of one cent per minute of playing time or fraction thereof, whichever amount is larger. [51] (3)(A) A compulsory license under this section includes the right of the compulsory licensee to distribute or authorize the distribution of a phonorecord of a nondramatic musical work by means of a digital transmission which constitutes a digital phonorecord delivery, regardless of whether the digital transmission is also a public performance of the sound recording under section 106(6) of this title or of any nondramatic musical work embodied therein under section 106(4) of this title. For every digital phonorecord delivery by or under the authority of the compulsory licensee- (i) on or before December 31, 1997, the royalty payable by the compulsory licensee shall be the royalty prescribed under paragraph (2) and chapter 8 of this title; and (ii) on or after January 1, 1998, the royalty payable by the compulsory licensee shall be the royalty prescribed under subparagraphs (B) through (F) and chapter 8 of this title. (B) Notwithstanding any provision of the antitrust laws, any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may negotiate and agree upon the terms and rates of royalty payments under this paragraph and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay or receive such royalty payments. Such authority to negotiate the terms and rates of royalty payments includes, but is not limited to, the authority to negotiate the year during which the royalty rates prescribed under subparagraphs (B) through (F) and chapter 8 of this title shall next be determined. (C) During the period of June 30, 1996, through December 31, 1996, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for the activities specified by subparagraph (A) during the period beginning January 1, 1998, and ending on the effective date of any new terms and rates established pursuant to subparagraph (C), (D) or (F), or such other date (regarding digital phonorecord deliveries) as the parties may agree. Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. Any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may submit to the Librarian of Congress licenses covering such activities. The parties to each negotiation proceeding shall bear their own costs. (D) In the absence of license agreements negotiated under subparagraphs (B) and (C), upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine a schedule of rates and terms which, subject to subparagraph (E), shall be binding on all copyright owners of nondramatic musical works and persons entitled to obtain a compulsory license under subsection (a)(1) during the period beginning January 1, 1998, and ending on the effective date of any new terms and rates established pursuant to subparagraph (C), (D) or (F), or such other date (regarding digital phonorecord deliveries) as may be determined pursuant to subparagraphs (B) and (C). Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. In addition to the objectives set forth in section 801(b)(1), in establishing such rates and terms, the copyright arbitration royalty panel may consider rates and terms under voluntary license agreements negotiated as provided in subparagraphs (B) and (C). The royalty rates payable for a compulsory license for a digital phonorecord delivery under this section shall be established de novo and no precedential effect shall be given to the amount of the royalty payable by a compulsory licensee for digital phonorecord deliveries on or before December 31, 1997. The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their works under this section, and under which records of such use shall be kept and made available by persons making digital phonorecord deliveries. (E)(i) License agreements voluntarily negotiated at any time between one or more copyright owners of nondramatic musical works and one or more persons entitled to obtain a compulsory license under subsection (a)(1) shall be given effect in lieu of any determination by the Librarian of Congress. Subject to clause (ii), the royalty rates determined pursuant to subparagraph (C), (D) or (F) shall be given effect in lieu of any contrary royalty rates specified in a contract pursuant to which a recording artist who is the author of a nondramatic musical work grants a license under that person's exclusive rights in the musical work under paragraphs (1) and (3) of section 106 or commits another person to grant a license in that musical work under paragraphs (1) and (3) of section 106, to a person desiring to fix in a tangible medium of expression a sound recording embodying the musical work. (ii) The second sentence of clause (i) shall not apply to- (I) a contract entered into on or before June 22, 1995 and not modified thereafter for the purpose of reducing the royalty rates determined pursuant to subparagraph (C), (D) or (F) or of increasing the number of musical works within the scope of the contract covered by the reduced rates, except if a contract entered into on or before June 22, 1995, is modified thereafter for the purpose of increasing the number of musical works within the scope of the contract, any contrary royalty rates specified in the contract shall be given effect in lieu of royalty rates determined pursuant to subparagraph (C), (D) or (F) for the number of musical works within the scope of the contract as of June 22, 1995; and (II) a contract entered into after the date that the sound recording is fixed in a tangible medium of expression substantially in a form intended for commercial release, if at the time the contract is entered into, the recording artist retains the right to grant licenses as to the musical work under paragraphs (1) and (3) of section 106. (F) The procedures specified in subparagraphs (C) and (D) shall be repeated and concluded, in accordance with regulations that the Librarian of Congress shall prescribe, in each fifth calendar year after 1997, except to the extent that different years for the repeating and concluding of such proceedings may be determined in accordance with subparagraphs (B) and (C). (G) Except as provided in section 1002(e) of this title, a digital phonorecord delivery licensed under this paragraph shall be accompanied by the information encoded in the sound recording, if any, by or under the authority of the copyright owner of that sound recording, that identifies the title of the sound recording, the featured recording artist who performs on the sound recording, and related information, including information concerning the underlying musical work and its writer. (H)(i) A digital phonorecord delivery of a sound recording is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and section 509, unless- (I) the digital phonorecord delivery has been authorized by the copyright owner of the sound recording; and (II) the owner of the copyright in the sound recording or the entity making the digital phonorecord delivery has obtained a compulsory license under this section or has otherwise been authorized by the copyright owner of the musical work to distribute or authorize the distribution, by means of a digital phonorecord delivery, of each musical work embodied in the sound recording. (ii) Any cause of action under this subparagraph shall be in addition to those available to the owner of the copyright in the nondramatic musical work under subsection (c)(6) and section 106(4) and the owner of the copyright in the sound recording under section 106(6). (I) The liability of the copyright owner of a sound recording for infringement of the copyright in a nondramatic musical work embodied in the sound recording shall be determined in accordance with applicable law, except that the owner of a copyright in a sound recording shall not be liable for a digital phonorecord delivery by a third party if the owner of the copyright in the sound recording does not license the distribution of a phonorecord of the nondramatic musical work. (J) Nothing in section 1008 shall be construed to prevent the exercise of the rights and remedies allowed by this paragraph, paragraph (6), and chapter 5 in the event of a digital phonorecord delivery, except that no action alleging infringement of copyright may be brought under this title against a manufacturer, importer or distributor of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or against a consumer, based on the actions described in such section. (K) Nothing in this section annuls or limits (i) the exclusive right to publicly perform a sound recording or the musical work embodied therein, including by means of a digital transmission, under sections 106(4) and 106(6), (ii) except for compulsory licensing under the conditions specified by this section, the exclusive rights to reproduce and distribute the sound recording and the musical work embodied therein under sections 106(1) and 106(3), including by means of a digital phonorecord delivery, or (iii) any other rights under any other provision of section 106, or remedies available under this title, as such rights or remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995. (L) The provisions of this section concerning digital phonorecord deliveries shall not apply to any exempt transmissions or retransmissions under section 114(d)(1). The exemptions created in section 114(d)(1) do not expand or reduce the rights of copyright owners under section 106(1) through (5) with respect to such transmissions and retransmissions. (4) A compulsory license under this section includes the right of the maker of a phonorecord of a nondramatic musical work under subsection (a)(1) to distribute or authorize distribution of such phonorecord by rental, lease, or lending (or by acts or practices in the nature of rental, lease, or lending). In addition to any royalty payable under clause (2) and chapter 8 of this title, a royalty shall be payable by the compulsory licensee for every act of distribution of a phonorecord by or in the nature of rental, lease, or lending, by or under the authority of the compulsory licensee. With respect to each nondramatic musical work embodied in the phonorecord, the royalty shall be a proportion of the revenue received by the compulsory licensee from every such act of distribution of the phonorecord under this clause equal to the proportion of the revenue received by the compulsory licensee from distribution of the phonorecord under clause (2) that is payable by a compulsory licensee under that clause and under chapter 8. The Register of Copyrights shall issue regulations to carry out the purpose of this clause. (5) Royalty payments shall be made on or before the twentieth day of each month and shall include all royalties for the month next preceding. Each monthly payment shall be made under oath and shall comply with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall also prescribe regulations under which detailed cumulative annual statements of account, certified by a certified public accountant, shall be filed for every compulsory license under this section. The regulations covering both the monthly and the annual statements of account shall prescribe the form, content, and manner of certification with respect to the number of records made and the number of records distributed. (6) If the copyright owner does not receive the monthly payment and the monthly and annual statements of account when due, the owner may give written notice to the licensee that, unless the default is remedied within thirty days from the date of the notice, the compulsory license will be automatically terminated. Such termination renders either the making or the distribution, or both, of all phonorecords for which the royalty has not been paid, actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509. (d) Definition. As used in this section, the following term has the following meaning: A "digital phonorecord delivery" is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible. Section 116. Negotiated licenses for public performances by means of coin- operated phonorecord players [52] (a) Applicability of Section. This section applies to any nondramatic musical work embodied in a phonorecord. (b) Negotiated Licenses.- (1) Authority for negotiations. Any owners of copyright in works to which this section applies and any operators of coin-operated phonorecord players may negotiate and agree upon the terms and rates of royalty payments for the performance of such works and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay, or receive such royalty payments. (2) Arbitration. Parties not subject to such a negotiation, may determine, by arbitration in accordance with the provisions of chapter 8, the terms and rates and the division of fees described in paragraph (1). (c) License Agreements Superior to Copyright Arbitration Royalty Panel Determinations. License agreements between one or more copyright owners and one or more operators of coin-operated phonorecord players, which are negotiated in accordance with subsection (b), shall be given effect in lieu of any otherwise applicable determination by a copyright arbitration royalty panel. (d) Definitions. As used in this section, the following terms mean the following: (1) A "coin-operated phonorecord player" is a machine or device that- (A) is employed solely for the performance of nondramatic musical works by means of phonorecords upon being activated by the insertion of coins, currency, tokens, or other monetary units or their equivalent; (B) is located in an establishment making no direct or indirect charge for admission; (C) is accompanied by a list which is comprised of the titles of all the musical works available for performance on it, and is affixed to the phonorecord player or posted in the establishment in a prominent position where it can be readily examined by the public; and (D) affords a choice of works available for performance and permits the choice to be made by the patrons of the establishment in which it is located. (2) An "operator" is any person who, alone or jointly with others- (A) owns a coin-operated phonorecord player; (B) has the power to make a coin-operated phonorecord player available for placement in an establishment for purposes of public performance; or (C) has the power to exercise primary control over the selection of the musical works made available for public performance on a coin-operated phonorecord player. Section 117. Limitations on exclusive rights: Computer programs [53] (a) Making of Additional Copy or Adaptation by Owner of Copy. Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. (b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation. Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner. (c) Machine Maintenance or Repair. Notwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if- (1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and (2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine. (d) Definitions. For purposes of this section- (1) the "maintenance" of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and (2) the "repair" of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine. Section 118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting [54] (a) The exclusive rights provided by section 106 shall, with respect to the works specified by subsection (b) and the activities specified by subsection (d), be subject to the conditions and limitations prescribed by this section. (b) Notwithstanding any provision of the antitrust laws, any owners of copyright in published nondramatic musical works and published pictorial, graphic, and sculptural works and any public broadcasting entities, respectively, may negotiate and agree upon the terms and rates of royalty payments and the proportionate division of fees paid among various copyright owners, and may designate common agents to negotiate, agree to, pay, or receive payments. (1) Any owner of copyright in a work specified in this subsection or any public broadcasting entity may submit to the Librarian of Congress proposed licenses covering such activities with respect to such works. The Librarian of Congress shall proceed on the basis of the proposals submitted to it as well as any other relevant information. The Librarian of Congress shall permit any interested party to submit information relevant to such proceedings. (2) License agreements voluntarily negotiated at any time between one or more copyright owners and one or more public broadcasting entities shall be given effect in lieu of any determination by the Librarian of Congress: *Provided*, That copies of such agreements are filed in the Copyright Office within thirty days of execution in accordance with regulations that the Register of Copyrights shall prescribe. (3) In the absence of license agreements negotiated under paragraph (2), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of rates and terms which, subject to paragraph (2), shall be binding on all owners of copyright in works specified by this subsection and public broadcasting entities, regardless of whether such copyright owners have submitted proposals to the Librarian of Congress. In establishing such rates and terms the copyright arbitration royalty panel may consider the rates for comparable circumstances under voluntary license agreements negotiated as provided in paragraph (2). The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their works under this section, and under which records of such use shall be kept by public broadcasting entities. (c) The initial procedure specified in subsection (b) shall be repeated and concluded between June 30 and December 31, 1997, and at five-year intervals thereafter, in accordance with regulations that the Librarian of Congress shall prescribe. (d) Subject to the terms of any voluntary license agreements that have been negotiated as provided by subsection (b) (2), a public broadcasting entity may, upon compliance with the provisions of this section, including the rates and terms established by a copyright arbitration royalty panel under subsection (b) (3), engage in the following activities with respect to published nondramatic musical works and published pictorial, graphic, and sculptural works: (1) performance or display of a work by or in the course of a transmission made by a noncommercial educational broadcast station referred to in subsection (g); and (2) production of a transmission program, reproduction of copies or phonorecords of such a transmission program, and distribution of such copies or phonorecords, where such production, reproduction, or distribution is made by a nonprofit institution or organization solely for the purpose of transmissions specified in paragraph (1); and (3) the making of reproductions by a governmental body or a nonprofit institution of a transmission program simultaneously with its transmission as specified in paragraph (1), and the performance or display of the contents of such program under the conditions specified by paragraph (1) of section 110, but only if the reproductions are used for performances or displays for a period of no more than seven days from the date of the transmission specified in paragraph (1), and are destroyed before or at the end of such period. No person supplying, in accordance with paragraph (2), a reproduction of a transmission program to governmental bodies or nonprofit institutions under this paragraph shall have any liability as a result of failure of such body or institution to destroy such reproduction: *Provided*, That it shall have notified such body or institution of the requirement for such destruction pursuant to this paragraph: *And provided further*, That if such body or institution itself fails to destroy such reproduction it shall be deemed to have infringed. (e) Except as expressly provided in this subsection, this section shall have no applicability to works other than those specified in subsection (b). Owners of copyright in nondramatic literary works and public broadcasting entities may, during the course of voluntary negotiations, agree among themselves, respectively, as to the terms and rates of royalty payments without liability under the antitrust laws. Any such terms and rates of royalty payments shall be effective upon filing in the Copyright Office, in accordance with regulations that the Register of Copyrights shall prescribe. (f) Nothing in this section shall be construed to permit, beyond the limits of fair use as provided by section 107, the unauthorized dramatization of a nondramatic musical work, the production of a transmission program drawn to any substantial extent from a published compilation of pictorial, graphic, or sculptural works, or the unauthorized use of any portion of an audiovisual work. (g) As used in this section, the term "public broadcasting entity" means a noncommercial educational broadcast station as defined in section 397 of title 47 and any nonprofit institution or organization engaged in the activities described in paragraph (2) of subsection (d). Section 119. Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private home viewing [55] (a) Secondary Transmissions by Satellite Carriers.- (1) Superstations and PBS Satellite Feed. Subject to the provisions of paragraphs (3), (4), and (6) of this subsection and section 114(d), secondary transmissions of a performance or display of a work embodied in a primary transmission made by a superstation or by the Public Broadcasting Service satellite feed shall be subject to statutory licensing under this section if the secondary transmission is made by a satellite carrier to the public for private home viewing, with regard to secondary transmissions the satellite carrier is in compliance with the rules, regulations, or authorizations of the Federal Communications Commission governing the carriage of television broadcast station signals, and the carrier makes a direct or indirect charge for each retransmission service to each household receiving the secondary transmission or to a distributor that has contracted with the carrier for direct or indirect delivery of the secondary transmission to the public for private home viewing. In the case of the Public Broadcasting Service satellite feed, the statutory license shall be effective until January 1, 2002. [56] (2) Network stations.- (A) In general. Subject to the provisions of subparagraphs (B) and (C) of this paragraph and paragraphs (3), (4), (5), and (6) of this subsection and section 114(d), secondary transmissions of a performance or display of a work embodied in a primary transmission made by a network station shall be subject to statutory licensing under this section if the secondary transmission is made by a satellite carrier to the public for private home viewing, with regard to secondary transmissions the satellite carrier is in compliance with the rules, regulations, or authorizations of the Federal Communications Commission governing the carriage of television broadcast station signals, and the carrier makes a direct or indirect charge for such retransmission service to each subscriber receiving the secondary transmission. (B) Secondary transmissions to unserved households.- (i) In general. The statutory license provided for in subparagraph (A) shall be limited to secondary transmissions of the signals of no more than two network stations in a single day for each television network to persons who reside in unserved households. (ii) Accurate determinations of eligibility.- (I) Accurate predictive model. In determining presumptively whether a person resides in an unserved household under subsection (d)(10)(A), a court shall rely on the Individual Location Longley-Rice model set forth by the Federal Communications Commission in Docket No. 98-201, as that model may be amended by the Commission over time under section 339(c)(3) of the Communications Act of 1934 to increase the accuracy of that model. (II) Accurate measurements. For purposes of site measurements to determine whether a person resides in an unserved household under subsection (d)(10)(A), a court shall rely on section 339(c)(4) of the Communications Act of 1934. (iii) C-band exemption to unserved households.- (I) In general. The limitations of clause (i) shall not apply to any secondary transmissions by C-band services of network stations that a subscriber to C-band service received before any termination of such secondary transmissions before October 31, 1999. (II) Definition. In this clause the term "C-band service" means a service that is licensed by the Federal Communications Commission and operates in the Fixed Satellite Service under part 25 of title 47 of the Code of Federal Regulations. (C) Submission of subscriber lists to networks. A satellite carrier that makes secondary transmissions of a primary transmission made by a network station pursuant to subparagraph (A) shall, 90 days after commencing such secondary transmissions, submit to the network that owns or is affiliated with the network station a list identifying (by name and street address, including county and zip code) all subscribers to which the satellite carrier makes secondary transmissions of that primary transmission. Thereafter, on the 15th of each month, the satellite carrier shall submit to the network a list identifying (by name and street address, including county and zip code) any persons who have been added or dropped as such subscribers since the last submission under this subparagraph. Such subscriber information submitted by a satellite carrier may be used only for purposes of monitoring compliance by the satellite carrier with this subsection. The submission requirements of this subparagraph shall apply to a satellite carrier only if the network to whom the submissions are to be made places on file with the Register of Copyrights a document identifying the name and address of the person to whom such submissions are to be made. The Register shall maintain for public inspection a file of all such documents. (3) Noncompliance with reporting and payment requirements.- Notwithstanding the provisions of paragraphs (1) and (2), the willful or repeated secondary transmission to the public by a satellite carrier of a primary transmission made by a superstation or a network station and embodying a performance or display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, where the satellite carrier has not deposited the statement of account and royalty fee required by subsection (b), or has failed to make the submissions to networks required by paragraph (2)(C). (4) Willful alterations. Notwithstanding the provisions of paragraphs (1) and (2), the secondary transmission to the public by a satellite carrier of a performance or display of a work embodied in a primary transmission made by a superstation or a network station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if the content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcement transmitted by the primary transmitter during, or immediately before or after, the transmission of such program, is in any way willfully altered by the satellite carrier through changes, deletions, or additions, or is combined with programming from any other broadcast signal. (5) Violation of territorial restrictions on statutory license for network stations.- (A) Individual violations. The willful or repeated secondary transmission by a satellite carrier of a primary transmission made by a network station and embodying a performance or display of a work to a subscriber who does not reside in an unserved household is actionable as an act of infringement under section 501 and is fully subject to the remedies provided by sections 502 through 506 and 509, except that- (i) no damages shall be awarded for such act of infringement if the satellite carrier took corrective action by promptly withdrawing service from the ineligible subscriber, and (ii) any statutory damages shall not exceed $5 for such subscriber for each month during which the violation occurred. (B) Pattern of violations. If a satellite carrier engages in a willful or repeated pattern or practice of delivering a primary transmission made by a network station and embodying a performance or display of a work to subscribers who do not reside in unserved households, then in addition to the remedies set forth in subparagraph (A)- (i) if the pattern or practice has been carried out on a substantially nationwide basis, the court shall order a permanent injunction barring the secondary transmission by the satellite carrier, for private home viewing, of the primary transmissions of any primary network station affiliated with the same network, and the court may order statutory damages of not to exceed $250,000 for each 6-month period during which the pattern or practice was carried out; and (ii) if the pattern or practice has been carried out on a local or regional basis, the court shall order a permanent injunction barring the secondary transmission, for private home viewing in that locality or region, by the satellite carrier of the primary transmissions of any primary network station affiliated with the same network, and the court may order statutory damages of not to exceed $250,000 for each 6-month period during which the pattern or practice was carried out. (C) Previous subscribers excluded. Subparagraphs (A) and (B) do not apply to secondary transmissions by a satellite carrier to persons who subscribed to receive such secondary transmissions from the satellite carrier or a distributor before November 16, 1988. (D) Burden of proof. [57] In any action brought under this paragraph, the satellite carrier shall have the burden of proving that its secondary transmission of a primary transmission by a network station is for private home viewing to an unserved household. (E) Exception. The secondary transmission by a satellite carrier of a performance or display of a work embodied in a primary transmission made by a network station to subscribers who do not reside in unserved households shall not be an act of infringement if- (i) the station on May 1, 1991, was retransmitted by a satellite carrier and was not on that date owned or operated by or affiliated with a television network that offered interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more States; (ii) as of July 1, 1998, such station was retransmitted by a satellite carrier under the statutory license of this section; and (iii) the station is not owned or operated by or affiliated with a television network that, as of January 1, 1995, offered interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more States. (6) Discrimination by a satellite carrier. Notwithstanding the provisions of paragraph (1), the willful or repeated secondary transmission to the public by a satellite carrier of [a] performance or display of a work embodied in a primary transmission made by a superstation or a network station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, if the satellite carrier unlawfully discriminates against a distributor. [58] (7) Geographic limitation on secondary transmissions. The statutory license created by this section shall apply only to secondary transmissions to households located in the United States. (8) Transitional signal intensity measurement procedures. [59] (A) In general. Subject to subparagraph (C), upon a challenge by a network station regarding whether a subscriber is an unserved household within the predicted Grade B Contour of the station, the satellite carrier shall, within 60 days after the receipt of the challenge- (i) terminate service to that household of the signal that is the subject of the challenge, and within 30 days thereafter notify the network station that made the challenge that service to that household has been terminated; or (ii) conduct a measurement of the signal intensity of the subscriber's household to determine whether the household is an unserved household after giving reasonable notice to the network station of the satellite carrier's intent to conduct the measurement. (B) Effect of measurement. If the satellite carrier conducts a signal intensity measurement under subparagraph (A) and the measurement indicates that- (i) the household is not an unserved household, the satellite carrier shall, within 60 days after the measurement is conducted, terminate the service to that household of the signal that is the subject of the challenge, and within 30 days thereafter notify the network station that made the challenge that service to that household has been terminated; or (ii) the household is an unserved household, the station challenging the service shall reimburse the satellite carrier for the costs of the signal measurement within 60 days after receipt of the measurement results and a statement of the costs of the measurement. (C) Limitation on measurements.- (i) Notwithstanding subparagraph (A), a satellite carrier may not be required to conduct signal intensity measurements during any calendar year in excess of 5 percent of the number of subscribers within the network station's local market that have subscribed to the service as of the effective date of the Satellite Home Viewer Act of 1994. (ii) If a network station challenges whether a subscriber is an unserved household in excess of 5 percent of the subscribers within the network station's local market within a calendar year, subparagraph (A) shall not apply to challenges in excess of such 5 percent, but the station may conduct its own signal intensity measurement of the subscriber's household after giving reasonable notice to the satellite carrier of the network station's intent to conduct the measurement. If such measurement indicates that the household is not an unserved household, the carrier shall, within 60 days after receipt of the measurement, terminate service to the household of the signal that is the subject of the challenge and within 30 days thereafter notify the network station that made the challenge that service has been terminated. The carrier shall also, within 60 days after receipt of the measurement and a statement of the costs of the measurement, reimburse the network station for the cost it incurred in conducting the measurement. (D) Outside the predicted grade b contour.- (i) If a network station challenges whether a subscriber is an unserved household outside the predicted Grade B Contour of the station, the station may conduct a measurement of the signal intensity of the subscriber's household to determine whether the household is an unserved household after giving reasonable notice to the satellite carrier of the network station's intent to conduct the measurement. (ii) If the network station conducts a signal intensity measurement under clause (i) and the measurement indicates that- (I) the household is not an unserved household, the station shall forward the results to the satellite carrier who shall, within 60 days after receipt of the measurement, terminate the service to the household of the signal that is the subject of the challenge, and shall reimburse the station for the costs of the measurement within 60 days after receipt of the measurement results and a statement of such costs; or (II) the household is an unserved household, the station shall pay the costs of the measurement. (9) Loser pays for signal intensity measurement; recovery of measurement costs in a civil action. In any civil action filed relating to the eligibility of subscribing households as unserved households- (A) a network station challenging such eligibility shall, within 60 days after receipt of the measurement results and a statement of such costs, reimburse the satellite carrier for any signal intensity measurement that is conducted by that carrier in response to a challenge by the network station and that establishes the household is an unserved household; and (B) a satellite carrier shall, within 60 days after receipt of the measurement results and a statement of such costs, reimburse the network station challenging such eligibility for any signal intensity measurement that is conducted by that station and that establishes the household is not an unserved household. (10) inability to conduct measurement. If a network station makes a reasonable attempt to conduct a site measurement of its signal at a subscriber's household and is denied access for the purpose of conducting the measurement, and is otherwise unable to conduct a measurement, the satellite carrier shall within 60 days notice thereof, terminate service of the station's network to that household. (11) Service to recreational vehicles and commercial trucks.- (A) Exemption.- (i) In general. For purposes of this subsection, and subject to clauses (ii) and (iii), the term "unserved household" shall include- (I) recreational vehicles as defined in regulations of the Secretary of Housing and Urban Development under section 3282.8 of title 24 of the Code of Federal Regulations; and (II) commercial trucks that qualify as commercial motor vehicles under regulations of the Secretary of Transportation under section 383.5 of title 49 of the Code of Federal Regulations. (ii) Limitation. Clause (i) shall apply only to a recreational vehicle or commercial truck if any satellite carrier that proposes to make a secondary transmission of a network station to the operator of such a recreational vehicle or commercial truck complies with the documentation requirements under subparagraphs (B) and (C). (iii) Exclusion. For purposes of this subparagraph, the terms "recreational vehicle" and "commercial truck" shall not include any fixed dwelling, whether a mobile home or otherwise. (B) Documentation requirements. A recreational vehicle or commercial truck shall be deemed to be an unserved household beginning 10 days after the relevant satellite carrier provides to the network that owns or is affiliated with the network station that will be secondarily transmitted to the recreational vehicle or commercial truck the following documents: (i) Declaration. A signed declaration by the operator of the recreational vehicle or commercial truck that the satellite dish is permanently attached to the recreational vehicle or commercial truck, and will not be used to receive satellite programming at any fixed dwelling. (ii) Registration. In the case of a recreational vehicle, a copy of the current State vehicle registration for the recreational vehicle. (iii) Registration and license. In the case of a commercial truck, a copy of- (I) the current State vehicle registration for the truck; and (II) a copy of a valid, current commercial driver's license, as defined in regulations of the Secretary of Transportation under section 383 of title 49 of the Code of Federal Regulations, issued to the operator. (C) Updated documentation requirements. If a satellite carrier wishes to continue to make secondary transmissions to a recreational vehicle or commercial truck for more than a 2-year period, that carrier shall provide each network, upon request, with updated documentation in the form described under subparagraph (B) during the 90 days before expiration of that 2-year period. (12) Statutory license contingent on compliance with fcc rules and remedial steps. Notwithstanding any other provision of this section, the willful or repeated secondary transmission to the public by a satellite carrier of a primary transmission embodying a performance or display of a work made by a broadcast station licensed by the Federal Communications Commission is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and 509, if, at the time of such transmission, the satellite carrier is not in compliance with the rules, regulations, and authorizations of the Federal Communications Commission concerning the carriage of television broadcast station signals. [60] (b) Statutory License for Secondary Transmissions for Private Home Viewing.- (1) Deposits with the register of copyrights. A satellite carrier whose secondary transmissions are subject to statutory licensing under subsection (a) shall, on a semiannual basis, deposit with the Register of Copyrights, in accordance with requirements that the Register shall prescribe by regulation- (A) a statement of account, covering the preceding 6-month period, specifying the names and locations of all superstations and network stations whose signals were transmitted, at any time during that period, to subscribers for private home viewing as described in subsections (a) (1) and (a)(2), the total number of subscribers that received such transmissions, and such other data as the Register of Copyrights may from time to time prescribe by regulation; and (B) a royalty fee for that 6-month period, computed by- (i) multiplying the total number of subscribers receiving each secondary transmission of a superstation during each calendar month by 17.5 cents per subscriber in the case of superstations that as retransmitted by the satellite carrier include any program which, if delivered by any cable system in the United States, would be subject to the syndicated exclusivity rules of the Federal Communications Commission, and 14 cents per subscriber in the case of superstations that are syndex-proof as defined in section 258.2 of title 37, Code of Federal Regulations; (ii) multiplying the number of subscribers receiving each secondary transmission of a network station or the Public Broadcasting Service satellite feed during each calendar month by 6 cents; [61] and (iii) adding together the totals computed under clauses (i) and (ii). (2) Investment of fees. The Register of Copyrights shall receive all fees deposited under this section and, after deducting the reasonable costs incurred by the Copyright Office under this section (other than the costs deducted under paragraph (4)), shall deposit the balance in the Treasury of the United States, in such manner as the Secretary of the Treasury directs. All funds held by the Secretary of the Treasury shall be invested in interest-bearing securities of the United States for later distribution with interest by the Librarian of Congress as provided by this title. (3) Persons to whom fees are distributed. The royalty fees deposited under paragraph (2) shall, in accordance with the procedures provided by paragraph (4), be distributed to those copyright owners whose works were included in a secondary transmission for private home viewing made by a satellite carrier during the applicable 6-month accounting period and who file a claim with the Librarian of Congress under paragraph (4). (4) Procedures for distribution. The royalty fees deposited under paragraph (2) shall be distributed in accordance with the following procedures: (A) Filing of claims for fees. During the month of July in each year, each person claiming to be entitled to statutory license fees for secondary transmissions for private home viewing shall file a claim with the Librarian of Congress, in accordance with requirements that the Librarian of Congress shall prescribe by regulation. For purposes of this paragraph, any claimants may agree among themselves as to the proportionate division of statutory license fees among them, may lump their claims together and file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf. (B) Determination of controversy; distributions. After the first day of August of each year, the Librarian of Congress shall determine whether there exists a controversy concerning the distribution of royalty fees. If the Librarian of Congress determines that no such controversy exists, the Librarian of Congress shall, after deducting reasonable administrative costs under this paragraph, distribute such fees to the copyright owners entitled to receive them, or to their designated agents. If the Librarian of Congress finds the existence of a controversy, the Librarian of Congress shall, pursuant to chapter 8 of this title, convene a copyright arbitration royalty panel to determine the distribution of royalty fees. (C) Withholding of fees during controversy. During the pendency of any proceeding under this subsection, the Librarian of Congress shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall have discretion to proceed to distribute any amounts that are not in controversy. (c) Adjustment of Royalty Fees.- (1) Applicability and determination of royalty fees. The rate of the royalty fee payable under subsection (b)(1)(B) shall be effective unless a royalty fee is established under paragraph (2) or (3) of this subsection. (2) Fee set by voluntary negotiation.- (A) Notice of initiation of proceedings. On or before July 1, 1996, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining the royalty fee to be paid by satellite carriers under subsection (b)(1)(B). (B) Negotiations. Satellite carriers, distributors, and copyright owners entitled to royalty fees under this section shall negotiate in good faith in an effort to reach a voluntary agreement or voluntary agreements for the payment of royalty fees. Any such satellite carriers, distributors, and copyright owners may at any time negotiate and agree to the royalty fee, and may designate common agents to negotiate, agree to, or pay such fees. If the parties fail to identify common agents, the Librarian of Congress shall do so, after requesting recommendations from the parties to the negotiation proceeding. The parties to each negotiation proceeding shall bear the entire cost thereof. (C) Agreements binding on parties; filing of agreements. Voluntary agreements negotiated at any time in accordance with this paragraph shall be binding upon all satellite carriers, distributors, and copyright owners that are parties thereto. Copies of such agreements shall be filed with the Copyright Office within 30 days after execution in accordance with regulations that the Register of Copyrights shall prescribe. (D) Period agreement is in effect. The obligation to pay the royalty fees established under a voluntary agreement which has been filed with the Copyright Office in accordance with this paragraph shall become effective on the date specified in the agreement, and shall remain in effect until December 31, 1999, or in accordance with the terms of the agreement, whichever is later. (3) Fee set by compulsory arbitration.- (A) Notice of initiation of proceedings. On or before January 1, 1997, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of arbitration proceedings for the purpose of determining a reasonable royalty fee to be paid under subsection (b)(1)(B) by satellite carriers who are not parties to a voluntary agreement filed with the Copyright Office in accordance with paragraph (2). Such arbitration proceeding shall be conducted under chapter 8. (B) Establishment of royalty fees. In determining royalty fees under this paragraph, the copyright arbitration royalty panel appointed under chapter 8 shall establish fees for the retransmission of network stations and superstations that most clearly represent the fair market value of secondary transmissions. In determining the fair market value, the panel shall base its decision on economic, competitive, and programming information presented by the parties, including- (i) the competitive environment in which such programming is distributed, the cost of similar signals in similar private and compulsory license marketplaces, and any special features and conditions of the retransmission marketplace; (ii) the economic impact of such fees on copyright owners and satellite carriers; and (iii) the impact on the continued availability of secondary transmissions to the public. (C) Period during which decision of arbitration panel or order of librarian effective. The obligation to pay the royalty fee established under a determination which- (i) is made by a copyright arbitration royalty panel in an arbitration proceeding under this paragraph and is adopted by the Librarian of Congress under section 802(f), or (ii) is established by the Librarian of Congress under section 802(f), shall become effective as provided in section 802(g ), or July 1, 1997, whichever is later. (D) Persons subject to royalty fee. The royalty fee referred to in subparagraph (C) shall be binding on all satellite carriers, distributors, and copyright owners, who are not party to a voluntary agreement filed with the Copyright Office under paragraph (2). (4) Reduction. [62]- (A) Superstation. The rate of the royalty fee in effect on January 1, 1998, payable in each case under subsection (b)(1)(B)(i) shall be reduced by 30 percent. (B) Network and public broadcasting satellite feed. The rate of the royalty fee in effect on January 1, 1998, payable under subsection (b) (1)(B)(ii) shall be reduced by 45 percent. (5) Public broadcasting service as agent. For purposes of section 802, with respect to royalty fees paid by satellite carriers for retransmitting the Public Broadcasting Service satellite feed, the Public Broadcasting Service shall be the agent for all public television copyright claimants and all Public Broadcasting Service member stations. [63] (d) Definitions. As used in this section- (1) Distributor. The term "distributor" means an entity which contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers for private home viewing or indirectly through other program distribution entities. (2) Network station. The term "network station" means- (A) a television broadcast station, including any translator station or terrestrial satellite station that rebroadcasts all or substantially all of the programming broadcast by a network station, that is owned or operated by, or affiliated with, one or more of the television networks in the United States which offer an interconnected program service on a regular basis for 15 or more hours per week to at least 25 of its affiliated television licensees in 10 or more States; or (B) a noncommercial educational broadcast station (as defined in section 397 of the Communications Act of 1934). (3) Primary network station. The term "primary network station" means a network station that broadcasts or rebroadcasts the basic programming service of a particular national network. (4) Primary transmission. The term "primary transmission" has the meaning given that term in section 111(f) of this title. (5) Private home viewing. The term "private home viewing" means the viewing, for private use in a household by means of satellite reception equipment which is operated by an individual in that household and which serves only such household, of a secondary transmission delivered by a satellite carrier of a primary transmission of a television station licensed by the Federal Communications Commission. (6) Satellite carrier. The term "satellite carrier" means an entity that uses the facilities of a satellite or satellite service licensed by the Federal Communications Commission and operates in the Fixed-Satellite Service under part 25 of title 47 of the Code of Federal Regulations or the Direct Broadcast Satellite Service under part 100 of title 47 of the Code of Federal Regulations to establish and operate a channel of communications for point-to-multipoint distribution of television station signals, and that owns or leases a capacity or service on a satellite in order to provide such point-to-multipoint distribution, except to the extent that such entity provides such distribution pursuant to tariff under the Communications Act of 1934, other than for private home viewing. (7) Secondary transmission. The term "secondary transmission" has the meaning given that term in section 111(f) of this title. (8) Subscriber. The term "subscriber" means an individual who receives a secondary transmission service for private home viewing by means of a secondary transmission from a satellite carrier and pays a fee for the service, directly or indirectly, to the satellite carrier or to a distributor. (9) Superstation. The term "superstation"- (A) means a television broadcast station, other than a network station, licensed by the Federal Communications Commission that is secondarily transmitted by a satellite carrier; and (B) except for purposes of computing the royalty fee, includes the Public Broadcasting Service satellite feed. [64] (10) Unserved household. The term "unserved household", with respect to a particular television network, means a household that- (A) cannot receive, through the use of a conventional, stationary, outdoor rooftop receiving antenna, an over-the-air signal of a primary network station affiliated with that network of Grade B intensity as defined by the Federal Communications Commission under section 73.683(a) of title 47 of the Code of Federal Regulations, as in effect on January 1, 1999; (B) is subject to a waiver granted under regulations established under section 339(c)(2) of the Communications Act of 1934; (C) is a subscriber to whom subsection (e) applies; (D) is a subscriber to whom subsection (a)(11) applies; or (E) is a subscriber to whom the exemption under subsection (a)(2)(B) (iii) applies. (11) Local market. The term "local market" has the meaning given such term under section 122(j). (12) Public broadcasting service satellite feed. The term "Public Broadcasting Service satellite feed" means the national satellite feed distributed and designated for purposes of this section by the Public Broadcasting Service consisting of educational and informational programming intended for private home viewing, to which the Public Broadcasting Service holds national terrestrial broadcast rights. [65] (e) Moratorium on Copyright Liability. Until December 31, 2004, a subscriber who does not receive a signal of Grade A intensity (as defined in the regulations of the Federal Communications Commission under section 73.683(a) of title 47 of the Code of Federal Regulations, as in effect on January 1, 1999, or predicted by the Federal Communications Commission using the Individual Location Longley-Rice methodology described by the Federal Communications Commission in Docket No. 98-201) of a local network television broadcast station shall remain eligible to receive signals of network stations affiliated with the same network, if that subscriber had satellite service of such network signal terminated after July 11, 1998, and before October 31, 1999, as required by this section, or received such service on October 31, 1999. Section 120. Scope of exclusive rights in architectural works [66] (a) Pictorial Representations Permitted. The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. (b) Alterations to and Destruction of Buildings. Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building. Section 121. Limitations on exclusive rights: reproduction for blind or other people with disabilities [67] (a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities. (b)(1) Copies or phonorecords to which this section applies shall (A) not be reproduced or distributed in a format other than a specialized format exclusively for use by blind or other persons with disabilities; (B) bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and (C) include a copyright notice identifying the copyright owner and the date of the original publication. (2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs. (c) For purposes of this section, the term- (1) "authorized entity" means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities; (2) "blind or other persons with disabilities" means individuals who are eligible or who may qualify in accordance with the Act entitled "An Act to provide books for the adult blind", approved March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487) to receive books and other publications produced in specialized formats; and (3) "specialized formats" means braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities. Section 122. Limitations on exclusive rights; secondary transmissions by satellite carriers within local markets [68] (a) Secondary Transmissions of television Broadcast Stations by Satellite Carriers. A secondary transmission of a performance or display of a work embodied in a primary transmission of a television broadcast station into the station's local market shall be subject to statutory licensing under this section if- (1) the secondary transmission is made by a satellite carrier to the public; (2) with regard to secondary transmissions, the satellite carrier is in compliance with the rules, regulations, or authorizations of the Federal Communications Commission governing the carriage of television broadcast station signals; and (3) the satellite carrier makes a direct or indirect charge for the secondary transmission to- (A) each subscriber receiving the secondary transmission; or (B) a distributor that has contracted with the satellite carrier for direct or indirect delivery of the secondary transmission to the public. (b) Reporting Requirements.- (1) Initial lists. A satellite carrier that makes secondary transmissions of a primary transmission made by a network station under subsection (a) shall, within 90 days after commencing such secondary transmissions, submit to the network that owns or is affiliated with the network station a list identifying (by name in alphabetical order and street address, including county and zip code) all subscribers to which the satellite carrier makes secondary transmissions of that primary transmission under subsection (a). (2) Subsequent lists. After the list is submitted under paragraph (1), the satellite carrier shall, on the 15th of each month, submit to the network a list identifying (by name in alphabetical order and street address, including county and zip code) any subscribers who have been added or dropped as subscribers since the last submission under this subsection. (3) Use of subscriber information. Subscriber information submitted by a satellite carrier under this subsection may be used only for the purposes of monitoring compliance by the satellite carrier with this section. (4) Requirements of networks. The submission requirements of this subsection shall apply to a satellite carrier only if the network to which the submissions are to be made places on file with the Register of Copyrights a document identifying the name and address of the person to whom such submissions are to be made. The Register of Copyrights shall maintain for public inspection a file of all such documents. (c) No Royalty Fee Required. A satellite carrier whose secondary transmissions are subject to statutory licensing under subsection (a) shall have no royalty obligation for such secondary transmissions. (d) Noncompliance with Reporting and Regulatory Requirements. Notwithstanding subsection (a), the willful or repeated secondary transmission to the public by a satellite carrier into the local market of a television broadcast station of a primary transmission embodying a performance or display of a work made by that television broadcast station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided under sections 502 through 506 and 509, if the satellite carrier has not complied with the reporting requirements of subsection (b) or with the rules, regulations, and authorizations of the Federal Communications Commission concerning the carriage of television broadcast signals. (e) Willful Alterations. Notwithstanding subsection (a), the secondary transmission to the public by a satellite carrier into the local market of a television broadcast station of a performance or display of a work embodied in a primary transmission made by that television broadcast station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if the content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcement transmitted by the primary transmitter during, or immediately before or after, the transmission of such program, is in any way willfully altered by the satellite carrier through changes, deletions, or additions, or is combined with programming from any other broadcast signal. (f) Violation of territorial Restrictions on Statutory License for television Broadcast Stations.- (1) Individual violations. The willful or repeated secondary transmission to the public by a satellite carrier of a primary transmission embodying a performance or display of a work made by a television broadcast station to a subscriber who does not reside in that station's local market, and is not subject to statutory licensing under section 119 or a private licensing agreement, is actionable as an act of infringement under section 501 and is fully subject to the remedies provided by sections 502 through 506 and 509, except that- (A) no damages shall be awarded for such act of infringement if the satellite carrier took corrective action by promptly withdrawing service from the ineligible subscriber; and (B) any statutory damages shall not exceed $5 for such subscriber for each month during which the violation occurred. (2) Pattern of violations. If a satellite carrier engages in a willful or repeated pattern or practice of secondarily transmitting to the public a primary transmission embodying a performance or display of a work made by a television broadcast station to subscribers who do not reside in that station's local market, and are not subject to statutory licensing under section 119 or a private licensing agreement, then in addition to the remedies under paragraph (1)- (A) if the pattern or practice has been carried out on a substantially nationwide basis, the court- (i) shall order a permanent injunction barring the secondary transmission by the satellite carrier of the primary transmissions of that television broadcast station (and if such television broadcast station is a network station, all other television broadcast stations affiliated with such network); and (ii) may order statutory damages not exceeding $250,000 for each 6-month period during which the pattern or practice was carried out; and (B) if the pattern or practice has been carried out on a local or regional basis with respect to more than one television broadcast station, the court- (i) shall order a permanent injunction barring the secondary transmission in that locality or region by the satellite carrier of the primary transmissions of any television broadcast station; and (ii) may order statutory damages not exceeding $250,000 for each 6-month period during which the pattern or practice was carried out. (g) Burden of Proof. In any action brought under subsection (f), the satellite carrier shall have the burden of proving that its secondary transmission of a primary transmission by a television broadcast station is made only to subscribers located within that station's local market or subscribers being served in compliance with section 119 or a private licensing agreement. (h) Geographic Limitations on secondary Transmissions. The statutory license created by this section shall apply to secondary transmissions to locations in the United States. (i) Exclusivity with Respect to Secondary Transmissions of Broadcast Stations by Satellite to Members of the Public. No provision of section 111 or any other law (other than this section and section 119) shall be construed to contain any authorization, exemption, or license through which secondary transmissions by satellite carriers of programming contained in a primary transmission made by a television broadcast station may be made without obtaining the consent of the copyright owner. (j) Definitions. In this section- (1) Distributor. The term "distributor" means an entity which contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers or indirectly through other program distribution entities. (2) Local market.- (A) In general. The term "local market", in the case of both commercial and noncommercial television broadcast stations, means the designated market area in which a station is located, and- (i) in the case of a commercial television broadcast station, all commercial television broadcast stations licensed to a community within the same designated market area are within the same local market; and (ii) in the case of a noncommercial educational television broadcast station, the market includes any station that is licensed to a community within the same designated market area as the noncommercial educational television broadcast station. (B) County of license. In addition to the area described in subparagraph (A), a station's local market includes the county in which the station's community of license is located. (C) Designated market area. For purposes of subparagraph (A), the term "designated market area" means a designated market area, as determined by Nielsen Media Research and published in the 1999-2000 Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates or any successor publication. (3) Network station; satellite carrier; secondary transmission. The terms "network station", "satellite carrier", and "secondary transmission" have the meanings given such terms under section 119(d). (4) Subscriber. The term "subscriber" means a person who receives a secondary transmission service from a satellite carrier and pays a fee for the service, directly or indirectly, to the satellite carrier or to a distributor. (5) Television broadcast station. The term "television broadcast station"- (A) means an over-the-air, commercial or noncommercial television broadcast station licensed by the Federal Communications Commission under subpart E of part 73 of title 47, Code of Federal Regulations, except that such term does not include a low-power or translator television station; and (B) includes a television broadcast station licensed by an appropriate governmental authority of Canada or Mexico if the station broadcasts primarily in the English language and is a network station as defined in section 119(d)(2)(A). ------------------ Chapter 1 Endnotes 1 In 1980, section 117 was amended in its entirety with an amendment in the nature of a substitute that included a new title. However, the table of sections was not changed to reflect the new title. Pub. L. No. 96-517, 94 Stat. 3015, 3028. In 1997, a technical amendment made that change. Pub. L. No. 105-80, 111 Stat. 1529, 1534. 2 The Audio Home Recording Act of 1992 amended section 101 by inserting "Except as otherwise provided in this title," at the beginning of the first sentence. Pub. L. No. 102-563, 106 Stat. 4237, 4248. The Berne Convention Implementation Act of 1988 amended section 101 by adding a definition for "Berne Convention work." Pub. L. No. 100-568, 102 Stat. 2853, 2854. In 1990, the Architectural Works Copyright Protection Act amended the definition of "Berne Convention work" by adding paragraph (5). Pub. L. No. 101-650, 104 Stat. 5089, 5133. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 deleted the definition of "Berne Convention work" from section 101. Pub. L. No. 105-304, 112 Stat. 2860, 2861. The definition of "Berne Convention work," as deleted, is contained in part VI of the Appendix. 3 In 1990, the Architectural Works Copyright Protection Act amended section 101 by adding the definition for "architectural work." Pub. L. No. 101-650, 104 Stat. 5089, 5133. That Act states that the definition is applicable to "any architectural work that, on the date of the enactment of this Act, is unconstructed and embodied in unpublished plans or drawings, except that protection for such architectural work under title 17, United States Code, by virtue of the amendments made by this title, shall terminate on December 31, 2002, unless the work is constructed by that date." 4 The Berne Convention Implementation Act of 1988 amended section 101 by adding the definition of "Berne Convention." Pub. L. No. 100-568, 102 Stat. 2853, 2854. 5 The Digital Performance Right in Sound Recordings Act of 1995 amended section 101 by adding the definition of "digital transmission." Pub. L. No.104-39, 109 Stat. 336, 348. 6 The Fairness in Music Licensing Act of 1998 amended section 101 by adding the definition of "establishment." Pub. L. No. 105-298, 112 Stat. 2827, 2833. 7 The Fairness in Music Licensing Act of 1998 amended section 101 by adding the definition of "food service or drinking establishment." Pub. L. No. 105-298, 112 Stat. 2827, 2833. 8 In 1997, the No Electronic Theft (NET) Act amended section 101 by adding the definition for "financial gain." Pub. L. No. 105-147, 111 Stat. 2678. 9 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 101 by adding the definition of "Geneva Phonograms Convention." Pub. L. No. 105-304, 112 Stat. 2860, 2861. 10 The Fairness in Music Licensing Act of 1998 amended section 101 by adding the definition of "gross square feet of space." Pub. L. No. 105-298, 112 Stat. 2827, 2833. 11 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 requires that paragraph (5) of the definition of "international agreement" take effect upon entry into force of the WIPO Copyright Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 12 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 requires that paragraph (6) of the definition of "international agreement" take effect upon entry into force of the WIPO Performances and Phonograms Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 13 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 101 by adding the definition of "international agreement." Pub. L. No. 105-304, 112 Stat. 2860, 2861. 14 The Fairness in Music Licensing Act of 1998 amended section 101 by adding the definition of "performing rights society." Pub. L. No. 105-298, 112 Stat. 2827, 2833. 15 The Berne Convention Implementation Act of 1988 amended the definition of "Pictorial, graphic, and sculptural works" by inserting "diagrams, models, and technical drawings, including architectural plans" in the first sentence, in lieu of "technical drawings, diagrams, and models." Pub. L. No. 100-568, 102 Stat. 2853, 2854. 16 The Fairness in Music Licensing Act of 1998 amended section 101 by adding the definition of "proprietor." Pub. L. No. 105-298, 112 Stat. 2827, 2833. In 1999, a technical amendment added the phrase "For purposes of section 513,", to the beginning of the definition of "proprietor." Pub. L. No. 106-44, 113 Stat. 221, 222. 17 The Copyright Renewal Act of 1992 amended section 101 by adding the definition of "registration." Pub. L. No. 102-307, 106 Stat. 264, 266. 18 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 101 by adding the definition of "treaty party." Pub. L. No. 105-304, 112 Stat. 2860, 2861. 19 The Berne Convention Implementation Act of 1988 amended section 101 by adding the definition of "country of origin" of a Berne Convention work, for purposes of section 411. Pub. L. No. 100-568, 102 Stat. 2853, 2854. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended that definition by changing it to a definition for "United States work," for purposes of section 411. Pub. L. No. 105-304, 112 Stat. 2860, 2861. In 1999, a technical amendment moved the definition of "United States work" to place it in alphabetical order, after the definition for "United States." Pub. L. No. 106-44, 113 Stat. 221, 222. 20 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 101 by adding the definition of "WIPO Copyright Treaty." Pub. L. No. 105-304, 112 Stat. 2860, 2861. That definition is required to take effect upon entry into force of the WIPO Copyright Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 21 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 101 by adding the definition of "WIPO Performances and Phonograms Treaty." Pub. L. No. 105-304, 112 Stat. 2860, 2862. That definition is required to take effect upon entry into force of the WIPO Performances and Phonograms Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 22 The Visual Artists Rights Act of 1990 amended section 101 by adding the definition of "work of visual art." Pub. L. No. 101-650, 104 Stat. 5089, 5128. 23 The Satellite Home Viewer Improvement Act of 1999 amended the definition of "a work made for hire" by inserting "as a sound recording" after "audiovisual work." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. The Work Made for Hire and Copyright Corrections Act of 2000 amended the definition of "work made for hire" by deleting "as a sound recording" after "audiovisual work." Pub. L. No. 106-379, 114 Stat. 1444. The Act also added a second paragraph to part (2) of that definition. *Id.* These changes are effective retroactively, as of November 29, 1999. 24 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 101 by adding the definitions of "WTO Agreement" and "WTO member country," thereby transferring those definitions to section 101 from section 104A. Pub. L. No. 105-304, 112 Stat. 2860, 2862. See also endnote 29, *infra.* 25 In 1980, the definition of "computer program" was added to section 101. Pub. L. No. 96-517, 94 Stat. 3015, 3028. 26 In 1990, the Architectural Works Copyright Protection Act amended subsection 102(a) by adding at the end thereof paragraph (8). Pub. L. No. 101-650, 104 Stat. 5089, 5133. 27 The Berne Convention Implementation Act of 1988 amended section 104(b) by redesignating paragraph (4) as paragraph (5), by inserting after paragraph (3) a new paragraph (4) and by adding subsection (c) at the end. Pub. L. No. 100-568, 102 Stat. 2853, 2855. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 104 as follows: 1) by amending subsection (b) to redesignate paragraphs (3) and (5) as (5) and (6), respectively, and by adding a new paragraph (3); 2) by amending section 104(b), throughout; and 3) by adding section 104(d). Pub. L. No. 105-304, 112 Stat. 2860, 2862. 28 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 requires that subsection (d), regarding the effect of phonograms treaties, take effect upon entry into force of the WIPO Performances and Phonograms Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 29 In 1993, the North American Free Trade Agreement Implementation Act added section 104A. Pub. L. No. 103-182, 107 Stat. 2057, 2115. In 1994, the Uruguay Round Agreements Act amended section 104A in its entirety with an amendment in the nature of a substitute. Pub. L. No. 103-465, 108 Stat. 4809, 4976. On November 13, 1997, Section 104A was amended by replacing subsection (d)(3)(A), by striking the last sentence of subsection (e)(1)(B)(ii) and by rewriting paragraphs (2) and (3) of subsection (h). Pub. L. No. 105-80, 111 Stat. 1529, 1530. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 104A by rewriting paragraphs (1) and (3) of subsection (h); by adding subparagraph (E) to subsection (h)(6); and by amending subsection (h)(8)(B)(i). Pub. L. No. 105-304, 112 Stat. 2860, 2862. That act also deleted paragraph (9), thereby transferring the definitions for "WTO Agreement" and "WTO member country" from section 104A to section 101. Pub. L. No. 105-304, 112 Stat. 2860, 2863. See also endnote 24, *supra.* 30 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 requires that subparagraph (C) of the definition of "date of adherence or proclamation" take effect upon entry into force of the WIPO Copyright Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 31 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 requires that subparagraph (D) of the definition of "date of adherence or proclamation" take effect upon entry into force of the WIPO Performances and Phonograms Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 32 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 requires that subparagraph (C) of the definition of "eligible country" take effect upon entry into force of the WIPO Copyright Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 33 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 requires that subparagraph (D) of the definition of "eligible country" take effect upon entry into force of the WIPO Performance and Phonograms Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 34 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 requires that subparagraph (E) of the definition of "restored work" take effect upon entry into force of the WIPO Performances and Phonograms Treaty with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877. 35 In 1968, the Standard Reference Data Act provided an exception to Section 105, Pub. L. No. 90-396, 82 Stat. 339. Section 6 of that act amended title 15 of the *United States Code* by authorizing the Secretary of Commerce, at 15 U.S.C. 290e, to secure copyright and renewal thereof on behalf of the United States as author or proprietor "in all or any part of any standard reference data which he prepares or makes available under this chapter," and to "authorize the reproduction and publication thereof by others." See also section 105(f) of the Transitional and Supplementary Provisions of the Copyright Act of 1976, in Part I of the Appendix. Pub. L. No. 94-553, 90 Stat. 2541. 36 The Digital Performance Right in Sound Recordings Act of 1995 amended section 106 by adding paragraph (6). Pub. L. No. 104-39, 109 Stat. 336. In 1999, a technical amendment substituted "121" for "120." Pub. L. No. 106-44, 113 Stat. 221, 222. 37 The Visual Artists Rights Act of 1990 added section 106A. Pub. L. No. 101-650, 104 Stat. 5089, 5128. The Act states that, generally, section 106A is to take effect six months after the date of its enactment, that is, six months after December 1, 1990, and that the rights created by section 106A shall apply to (1) works created before such effective date but title to which has not, as of such effective date, been transferred from the author and (2) works created on or after such effective date, but shall not apply to any destruction, distortion, mutilation or other modification (as described in section 106A(a)(3)) of any work which occurred before such effective date. See also, endnote 3, chapter 3. 38 The Visual Artists Rights Act of 1990 amended section 107 by adding the reference to section 106A. Pub. L. No. 101-650, 104 Stat. 5089, 5132. In 1992, section 107 was also amended to add the last sentence. Pub. L. No. 102-492, 106 Stat. 3145. 39 The Copyright Amendments Act of 1992 amended section 108 by repealing subsection (i) in its entirety. Pub. L. No. 102-307, 106 Stat. 264, 272. In 1998, the Digital Millennium Copyright Act amended section 108 by making changes to subsections (a), (b) and (c); by redesignating subsection (h) as (i); and by adding a new subsection (h). Pub. L. No. 105-304, 112 Stat. 2860, 2889. 40 The Record Rental Amendment of 1984 amended section 109 by redesignating subsections (b) and (c) as subsections (c) and (d), respectively, and by inserting a new subsection (b) after subsection (a). Pub. L. No. 98-450, 98 Stat. 1727. Section 4(b) of the Act states that the provisions of section 109(b), as added by section 2 of the Act, "shall not affect the right of an owner of a particular phonorecord of a sound recording, who acquired such ownership before [October 4, 1984], to dispose of the possession of that particular phonorecord on or after such date of enactment in any manner permitted by section 109 of title 17, United States Code, as in effect on the day before the date of the enactment of this Act." Pub. L. No. 98-450, 98 Stat. 1727, 1728. Section 4(c) of the Act also states that the amendments "shall not apply to rentals, leasings, lendings (or acts or practices in the nature of rentals, leasings, or lendings) occurring after the date which is 13 years after [October 4, 1984]" In 1988, the Record Rental Amendment Act of 1984 was amended to extend the time period in section 4(c) from 5 years to 13 years. Pub. L. No. 100-617, 102 Stat. 3194. In 1993, the North American Free Trade Agreement Implementation Act repealed section 4(c) of the Record Rental Amendment of 1984. Pub. L. No. 103-182, 107 Stat. 2057, 2114. Also in 1988, technical amendments to section 109(d) inserted "(c)" in lieu of "(b)" and substituted "copyright" in lieu of "coyright" Pub. L. No. 100-617, 102 Stat. 3194. The Computer Software Rental Amendments Act of 1990 amended section 109(b) as follows: 1) paragraphs (2) and (3) were redesignated as paragraphs (3) and (4), respectively; 2) paragraph (1) was struck out and new paragraphs (1) and (2) were inserted in lieu thereof; and 3) paragraph (4), as redesignated, was amended in its entirety with a new paragraph (4) inserted in lieu thereof. Pub. L. No. 101-650, 104 Stat. 5089, 5134. The Act states that section 109(b), as amended, "shall not affect the right of a person in possession of a particular copy of a computer program, who acquired such copy before the date of the enactment of this Act, to dispose of the possession of that copy on or after such date of enactment in any manner permitted by section 109 of title 17, United States Code, as in effect on the day before such date of enactment." The Act also states that the amendments made to section 109(b) "shall not apply to rentals, leasings, or lendings (or acts or practices in the nature of rentals, leasings, or lendings) occurring on or after October 1, 1997." However, this limitation, which is set forth in the first sentence of section 804 (c) of the Computer Software Rental Amendments Act of 1990, at 104 Stat. 5136, was subsequently deleted in 1994 by the Uruguay Round Agreements Act. Pub. L. No. 103-465, 108 Stat. 4809, 4974. The Computer Software Rental Amendments Act of 1990 also amended section 109 by adding at the end thereof subsection (e). Pub. L. No. 101-650, 104 Stat. 5089, 5135. That Act states that the provisions contained in the new subsection (e) shall take effect 1 year after the date of enactment of such Act, that is, one year after December 1, 1990. The Act also states that such amendments so made "shall not apply to public performances or displays that occur on or after October 1, 1995." In 1994, the Uruguay Round Agreements Act amended section 109(a) by adding the second sentence, which begins with "Notwithstanding the preceding sentence." Pub. L. No. 103-465, 108 Stat. 4809, 4981. 41 In 1988, the Extension of Record Rental Amendment amended section 110 by adding paragraph (10). Pub. L. No. 97-366, 96 Stat. 1759. In 1997, the Technical Corrections to the Satellite Home Viewer Act amended section 110 by inserting a semicolon in lieu of the period at the end of paragraph (8); by inserting "; and" in lieu of the period at the end of paragraph (9); and by inserting "(4)" in lieu of "4 above" in paragraph (10). Pub. L. No. 105-80, 111 Stat. 1529, 1534. The Fairness in Music Licensing Act of 1998 amended section 110, in paragraph 5, by adding subparagraph (B) and by making conforming amendments to subparagraph (A); by adding the phrase "or of the audiovisual or other devices utilized in such performance" to paragraph 7; and by adding the last paragraph to section 110 that begins "The exemptions provided under paragraph (5)." Pub. L. No. 105-298, 112 Stat. 2827, 2830. In 1999, a technical amendment made corrections to conform paragraph designations that were affected by amendments previously made by the Fairness in Music Licensing Act of 1998. Pub. L. No. 106-44, 113 Stat. 221. 42 In 1986, section 111(d) was amended by striking out paragraph (1) and by redesignating paragraphs (2), (3), (4) and (5) as paragraphs (1), (2), (3) and (4), respectively. Pub. L. 99-397, 100 Stat. 848. Also, in 1986, section 111(f) was amended by substituting "subsection (d)(1)" for "subsection (d)(2)" in the last sentence of the definition of "secondary transmission" and by adding a new sentence after the first sentence in the definition of "local service area of a primary transmitter." Pub. L. No. 99-397, 100 Stat. 848. The Satellite Home Viewer Act of 1988 amended subsection 111(a) by striking "or" at the end of paragraph (3), by redesignating paragraph (4) as paragraph (5) and by inserting a new paragraph (4). Pub. L. No. 100-667, 102 Stat. 3935, 3949. That Act also amended section (d)(1)(A) by adding the second sentence which begins with "In determining the total number."* Id.* The Copyright Royalty Tribunal Reform Act of 1993 amended section 111(d) by substituting "Librarian of Congress" for "Copyright Royalty Tribunal" where appropriate, by inserting a new sentence in lieu of the second and third sentences of paragraph (2) and, in paragraph (4), by amending subparagraph (B) in its entirety with substitute language. Pub. L. No. 103-198, 107 Stat. 2304, 2311. The Satellite Home Viewer Act of 1994 amended section 111(f) by inserting "microwave" after "wires, cables," in the paragraph relating to the definition of "cable system" and by inserting new matter after "April 15, 1976," in the paragraph relating to the definition of "local service area of a primary transmitter." Pub. L. No. 103-369, 108 Stat. 3477, 3480. That Act provides that the amendment "relating to the definition of the local service area of a primary transmitter, shall take effect on July 1, 1994." *Id.* In 1995, the Digital Performance in Sound Recordings Act amended section 111(c)(1) by inserting "and section 114(d)" in the first sentence, after "of this subsection." Pub. L. No. 104-39, 109 Stat. 336, 348. The Satellite Home Viewer Improvement Act of 1999 amended section 111 by substituting "statutory" for "compulsory" and "programming" for "programing," wherever they appeared. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-543. The Act also amended sections 111(a) and (b) by inserting "performance or display of a work embodied in a primary transmission" in lieu of "primary transmission embodying a performance or display of a work." It amended paragraph (1) of section 111(c) by inserting "a performance or display of a work embodied in" after "by a cable system of" and by striking "and embodying a performance or display of a work." It amended subparagraphs (3) and (4) of section 111(a) by inserting "a performance or display of a work embodied in a primary transmission" in lieu of "a primary transmission" and by striking "and embodying a performance or display of a work." *Id.* 43 Royalty rates specified by the compulsory licensing provisions of this section are subject to adjustment by copyright arbitration royalty panels appointed and convened by the Librarian of Congress in accordance with the provisions of Chapter 8 of title 17 of the *United States Code, *as amended by the Copyright Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198, 107 Stat. 2304, 2311. 44 In 1998, the Digital Millennium Copyright Act amended section 112 by redesignating subsection (a) as subsection (a)(1); by redesignating former sections (a)(1), (a)(2) and (a)(3) as subsections (a)(1)(A), (a) (1)(B) and (a)(1)(C), respectively; by adding subsection (a)(2); and by amending the language in new subsection (a)(1). Pub. L. No. 105-304, 112 Stat. 2860, 2888. The Digital Millennium Copyright Act also amended section 112 by redesignating subsection (e) as subsection (f) and adding a new subsection (e). Pub. L. No. 105-304, 112 Stat. 2860, 2899. In 1999, a technical amendment to section 112(e) redesignated paragraphs (3) through (10) as (2) through (9) and corrected the paragraph references throughout that section to conform to those redesignations. Pub. L. No. 106-44, 113 Stat. 221. 45 The Visual Artists Rights Act of 1990 amended section 113 by adding subsection (d) at the end thereof. Pub. L. No. 101-650, 104 Stat. 5089, 5130. 46 The Digital Performance Right in Sound Recordings Act of 1995 amended section 114 as follows: 1) in subsection (a), by striking "and (3)" and inserting in lieu thereof "(3) and (6)"; 2) in subsection (b) in the first sentence, by striking "phonorecords, or of copies of motion pictures and other audiovisual works," and inserting "phonorecords or copies"; and 3) by striking subsection (d) and inserting in lieu thereof new subsections (d), (e), (f), (g), (h), (i), and (j). Pub. L. No. 104-39, 109 Stat. 336. In 1997, subsection 114(f) was amended by inserting all the text that appears after "December 31, 2000" (which is now December 31, 2001, in paragraph (1)(A)) and by striking "and publish in the Federal Register." Pub. L. No. 105-80, 111 Stat. 1529, 1531. In 1998, the Digital Millennium Copyright Act amended section 114(d) by replacing paragraphs (1)(A) and (2) with amendments in the nature of substitutes. Pub. L. No. 105-304, 112 Stat. 2860, 2890. That Act also amended section 114(f) by revising the title; by redesignating paragraph (1) as paragraph (1)(A); by adding paragraph (1)(B) in lieu of paragraphs (2), (3), (4) and (5); and by amending the language in newly designated paragraph (1)(A), including revising the effective date from December 31, 2000, to December 31, 2001. Pub. L. No. 105-304, 112 Stat. 2860, 2894. The Digital Millennium Copyright Act also amended subsection 114(g) by substituting "transmission" in lieu of "subscription transmission," wherever it appears and, in the first sentence in paragraph (g)(1), by substituting "transmission licensed under a statutory license" in lieu of "subscription transmission licensed." Pub. L. No. 105-304, 112 Stat. 2860, 2897. That Act also amended subsection 114(j) by redesignating paragraphs (2), (3), (5), (6), (7) and (8) as (3), (5), (9), (12), (13) and (14), respectively; by amending paragraphs (4) and (9) in their entirety and resdesignating them as paragraphs (7) and (15), respectively; and by adding new definitions, including, paragraph (2) defining "archived program," paragraph (4) defining "continuous program," paragraph (6) defining "eligible nonsubscription transmission," paragraph (8) defining "new subscription service," paragraph (10) defining "preexisting satellite digital audio radio service" and paragraph (11) defining "preexisting subscription service." Pub. L. No. 105-304, 112 Stat. 2860, 2897. 47 The Digital Millennium Copyright Act states that "the publication of notice of proceedings under section 114(f)(1) . . . as in effect upon the effective date of [the Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336], for the determination of royalty payments shall be deemed to have been made for the period beginning on the effective date of that Act and ending on December 1, 2001." Pub. L. No. 105-304, 112 Stat. 2860, 2899. 48 The Digital Millennium Copyright Act contains an additional effective date provision for the amendment that changed the date in subsection 114(f)(1)(A) to December 31, 2001. This provision is paragraph 405(a)(5) of the Digital Millennium Copyright Act which is in Appendix V of this publication. 49 The Record Rental Amendment of 1984 amended section 115 by redesignating paragraphs (3) and (4) of subsection (c) as paragraphs (4) and (5), respectively, and by adding a new paragraph (3). Pub. L. No. 98-450, 98 Stat. 1727. In 1997, section 115 was amended by striking "and publish in the Federal Register" in subparagraph 115(c)(3)(D). Pub. L. No. 105-80, 111 Stat. 1529, 1531. The same legislation also amended section 115(c)(3)(E) by replacing the phrases "sections 106(1) and (3)" and "sections 106(1) and 106(3)" with "paragraphs (1) and (3) of section 106." Pub. L. No. 105-80, 111 Stat. 1529, 1534. The Digital Performance Right in Sound Recordings Act of 1995 amended section 115 as follows: 1) in the first sentence of subsection (a)(1), by striking "any other person" and inserting in lieu thereof "any other person, including those who make phonorecords or digital phonorecord deliveries,"; 2) in the second sentence of the same subsection, by inserting before the period "including by means of a digital phonorecord delivery"; 3) in the second sentence of subsection (c)(2), by inserting "and other than as provided in paragraph (3)," after "For this purpose,"; 4) by redesignating paragraphs (3), (4) and (5) of subsection (c) as paragraphs (4), (5) and (6), respectively, and by inserting after paragraph (2) a new paragraph (3); and (5) by adding after subsection (c) a new subsection (d). Pub. L. No. 104-39, 109 Stat. 336, 344. 50 Royalty rates specified by the compulsory licensing provisions of this section are subject to adjustment by copyright arbitration royalty panels appointed and convened by the Librarian of Congress in accordance with the provisions of Chapter 8 of title 17 of the *United States Code*, as amended by the Copyright Royalty Tribunal Reform Act of 1993. Pub. L. No. 103-198, 107 Stat. 2304. 51 Pursuant to this subsection and section 803(a)(3) of title 17, the current rates have been established by regulation and may be found at 37 C.F.R. 255. 52 The Berne Convention Implementation Act of 1988 added section 116A. Pub. L. No. 100-568, 102 Stat. 2853, 2855. The Copyright Royalty Tribunal Reform Act of 1993 redesignated section 116A as section 116; repealed the preexisting section 116; in the redesignated section 116, struck subsections (b), (e), (f) and (g), and redesignated subsections (c) and (d) as subsections (b) and (c), respectively; and substituted, where appropriate, "Librarian of Congress" or "copyright arbitration royalty panel" for "Copyright Royalty Tribunal." Pub. L. No. 103-198, 107 Stat. 2304, 2309. In 1997, section 116 was amended by rewriting subsection (b)(2) and by adding a new subsection (d). Pub. L. No. 105-80, 111 Stat. 1529, 1531. 53 In 1980, section 117 was amended in its entirety. Pub. L. No. 96-517, 94 Stat. 3015, 3028. In 1998, the Computer Maintenance Competition Assurance Act amended section 117 by inserting headings for subsections (a) and (b) and by adding subsections (c) and (d). Pub. L. No. 105-304, 112 Stat. 2860, 2887. 54 The Copyright Royalty Tribunal Reform Act of 1993 amended section 118 by striking the first two sentences of subsection (b), by substituting a new first sentence in paragraph (3) and by making general conforming amendments throughout. Pub. L. 103-198, 107 Stat. 2304, 2309. In 1999, a technical amendment deleted paragraph (2) from section 118(e). Pub. L. No. 106-44, 113 Stat. 221, 222. 55 The Satellite Home Viewer Act of 1988 added section 119. Pub. L. No. 100-667, 102 Stat. 3935, 3949. The Copyright Royalty Tribunal Reform Act of 1993 amended subsections (b) and (c) of section 119 by substituting "Librarian of Congress" in lieu of "Copyright Royalty Tribunal" wherever it appeared and by making related conforming amendments. Pub. L. No. 103-198, 107 Stat. 2304, 2310. The Copyright Royalty Tribunal Reform Act of 1993 also amended paragraph (c)(3) by deleting subparagraphs (B), (C), (E) and (F) and by redesignating subparagraph (D) as (B), (G) as (C) and (H) as (D). The redesignated subparagraph (C) was amended in its entirety and paragraph (c)(4) was deleted. *Id.* The Satellite Home Viewer Act of 1994 further amended section 119. Pub. L. No. 103-369, 108 Stat. 3477. In 1997, technical corrections and clarifications were made to the Satellite Home Viewer Act of 1994. Pub. L. No. 105-80, 111 Stat. 1529. Those two acts amended section 119 as follows: 1) by deleting or replacing obsolete effective dates; 2) in subsection (a)(5), by adding subparagraph (D); 3) in subsection (a), by adding paragraphs (8), (9) and (10); 4) in subsection (b)(1)(B), by adjusting the royalty rate for retransmitted superstations; 5) in subsection (c)(3), by replacing subparagraph (B) with an amendment in the nature of a substitute; 6) in subsections (d)(2) and (d)(6), by modifying the definition of "network station" and "satellite carrier"; and 7) in subsection (d), by adding paragraph 11 to define "local market." Pursuant to section 4 of the Satellite Home Viewer Act of 1994, the changes made by that Act to section 119 of the *United States Code* ceased to be effective on December 31, 1999. Pub. L. No. 103-369, 108 Stat. 3477, 3481. However, section 1003 of the Satellite Home Viewer Improvement Act of 1999 extended that date to December 31, 2004. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-527. The Digital Performance Right in Sound Recordings Act of 1995 amended section 119 in the first sentence of subsections (a)(1) and (a)(2)(A), respectively, by inserting the words "and section 114(d)" after "of this subsection." Pub. L. No. 104-39, 109 Stat. 336, 348. In 1999, a technical amendment substituted "network station's" for "network's stations" in section 119(a)(8)(C)(ii). Pub. L. No. 106-44, 113 Stat. 221, 222. The Satellite Home Viewer Improvement Act of 1999 amended section 119(a) (1) as follows: 1) by inserting "AND PBS SATELLITE FEED" after "SUPERSTATIONS" in the paragraph heading; 2) by inserting "performance or display of a work embodied in a primary transmission made by a superstation or by the Public Broadcasting Service satellite feed" in lieu of "primary transmission made by a superstation and embodying a performance or display of a work," (see endnote 55, *infra*) and 3) by adding the last sentence, which begins "In the case of the Public Broadcasting Service." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-530 and 543. The Act states that these amendments shall be effective as of July 1, 1999, except for a portion of the second item, starting with "performance or display" through "superstation." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. The Act also amended section 119(a) by inserting the phrase "with regard to secondary transmissions the satellite carrier is in compliance with the rules, regulations, or authorization of the Federal Communications Commission governing the carriage of television broadcast stations signals" in paragraphs (1) and (2) and by inserting into paragraph (2), "a performance or display of a work embodied in a primary transmission made by a network station" in lieu of "programming contained in a primary transmission made by a network station and embodying a performance or display of a work." *Id.* at 1501A-531 and 544. The Act amended section 119(a)(2) by substituting new language for paragraph (B) and, in paragraph (C), by deleting "currently" after "the satellite carrier" near the end of the first sentence. *Id.* at 1501A-528 and 544. It also amended section 119(a)(4) by inserting "a performance or display of a work embodied in" after "by a satellite carrier of" and by deleting "and embodying a performance or display of a work." *Id.* at 1501A-544. The Satellite Home Viewer Improvement Act of 1999 further amended section 119(a) by adding subparagraph (E) to paragraph (5). *Id.* at 1501A-528. It amended section 119(a)(6) by inserting "performance or display of a work embodied in" after "by a satellite carrier of" and by deleting "and embodying a performance or display of a work."* Id.* The Act also amended section 119(a) by adding paragraphs (11) and (12). *Id.* at 1501A-529 and 531. The Satellite Home Viewer Improvement Act of 1999 amended section 119(b) (1) by inserting "or the Public Broadcasting Service satellite feed" into subparagraph (B). (See endnote 60, *infra.*) *Id.* at 1501A-530. The Act amended section 119(c) by adding a new paragraph (4). *Id.* at 1501A-527. The Act amended section 119(d) by substituting new language for paragraphs (9) through (11) and by adding paragraph (12).* Id.* at 1501A-527, 530 and 531. The Act substituted new language for section 119(e). *Id.* at 1501A-529. 56 The Satellite Home Viewer Improvement Act of 1999 amended section 119(a)(1) by deleting "primary transmission made by a superstation and embodying a performance or display of a work" and inserting in its place "performance or display of a work embodied in a primary transmission made by a superstation." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-543. This amendatory language did not take into account a prior amendment which had inserted "or by the Public Broadcasting Service satellite feed" after "superstation" into the phrase quoted above that was deleted. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-530. There was no mention of the phrase "or by the Public Broadcasting Service satellite feed" in that second amendment. To accommodate both amendments, the phrase "or by the Public Broadcasting Service satellite feed" has been placed at the end of the new language, after "superstation." 57 The Satellite Home Viewer Act of 1994 states that "The provisions of section 119(a)(5)(D) . . . relating to the burden of proof of satellite carriers, shall take effect on January 1, 1997, with respect to civil actions relating to the eligibility of subscribers who subscribed to service as an unserved household before the date of the enactment of this Act." Pub. L. No. 103-369, 108 Stat. 3477, 3481. 58 It appears that section 1011(b)(2)(D)(i) of the Satellite Home Viewer Improvement Act of 1999 inadvertently omitted the word "a" when it amended this paragraph. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-528. 59 The Satellite Home Viewer Act of 1994 states that "The provisions of section 119(a)(8)[,] . . . relating to transitional signal intensity measurements, shall cease to be effective on December 31, 1996." Pub. L. No. 103-369, 108 Stat. 3477, 3481. 60 It appears that Congress intended for the Satellite Home Viewer Improvement Act of 1999 to amend section 119(a) of title 17, as amended by section 1005(d) of the Satellite Home Viewer Improvement Act of 1999, by adding a new paragraph (12) at the end thereof. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-531. However, due to a drafting error, the reference in the amendment is to section 119(a) as amended by section 1005(e), instead. 61 It appears that Congress intended for the Satellite Home Viewer Improvement Act of 1999 to amend section 119(b)(1)(B)(ii) to insert "or the Public Broadcasting Service satellite feed" after "network station." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-530. However, due to a drafting error, the reference in the amendment is to section 119(b) (1)(B)(iii), instead. The Act states that this amendment shall be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. 62 The Satellite Home Viewer Improvement Act of 1999 states that section 119(c)(4) shall be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-527. 63 The Satellite Home Viewer Improvement Act of 1999 states that section 119(c)(5) shall be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. 64 The Satellite Home Viewer Improvement Act of 1999 states that section 119(d)(9) shall be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. 65 The Satellite Home Viewer Improvement Act of 1999 states that section 119(d)(12) shall be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. 66 In 1990, the Architectural Works Copyright Protection Act added section 120. Pub. L. No. 101-650, 104 Stat. 5089, 5133. 67 The Legislative Branch Appropriations Act, 1997, added section 121. Pub. L. No. 104-197, 110 Stat. 2394, 2416. The Work Made for Hire and Copyright Corrections Act of 2000 amended section 121 by substituting "section 106" for "sections 106 and 710." Pub. L. No. 106-379, 114 Stat. 1444, 1445. 68 The Satellite Home Viewer Improvement Act of 1999 added section 122. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-523. The Act states that section 122 shall be effective as of November 29, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. ------------------------------------------------------------------------ Chapter 2 Copyright Ownership and Transfer + 201. Ownership of copyright + 202. Ownership of copyright as distinct from ownership of material object + 203. Termination of transfers and licenses granted by the author + 204. Execution of transfers of copyright ownership + 205. Recordation of transfers and other documents Section 201. Ownership of copyright {1} (a) Initial Ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowner of copyright in the work. (b) Works Made for Hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. (c) Contributions to Collective Works. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. (d) Transfer of Ownership.- (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. (e) Involuntary Transfer. When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11. [2] Section 202. Ownership of copyright as distinct from ownership of material object. Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object. Section 203. Termination of transfers and licenses granted by the author [3] (a) Conditions for Termination. In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions: (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's interest. (2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows: (A) the widow or widower owns the author's entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author's interest; (B) the author's surviving children, and the surviving children of any dead child of the author, own the author's entire termination interest unless there is a widow or widower, in which case the ownership of one- half of the author's interest is divided among them; (C) the rights of the author's children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author's children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them. (D) In the event that the author's widow or widower, children, and grandchildren are not living, the author's executor, administrator, personal representative, or trustee shall own the author's entire termination interest. (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier. (4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee's successor in title. (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. (B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant. (b) Effect of Termination. Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests under clauses (1) and (2) of subsection (a), including those owners who did not join in signing the notice of termination under clause (4) of subsection (a), but with the following limitations: (1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. (2) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of subsection (a). The rights vest in the author, authors, and other persons named in, and in the proportionate shares provided by, clauses (1) and (2) of subsection (a). (3) Subject to the provisions of clause (4) of this subsection, a further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under clause (2) of this subsection, as are required to terminate the grant under clauses (1) and (2) of subsection (a). Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under clause (2) of this subsection, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person's legal representatives, legatees, or heirs at law represent him or her for purposes of this clause. (4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee's successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a). (5) Termination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws. (6) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by this title. Section 204. Execution of transfers of copyright ownership- (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. (b) A certificate of acknowledgment is not required for the validity of a transfer, but is prima facie evidence of the execution of the transfer if- (1) in the case of a transfer executed in the United States, the certificate is issued by a person authorized to administer oaths within the United States; or (2) in the case of a transfer executed in a foreign country, the certificate is issued by a diplomatic or consular officer of the United States, or by a person authorized to administer oaths whose authority is proved by a certificate of such an officer. Section 205. Recordation of transfers and other documents [4] (a) Conditions for Recordation. Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. (b) Certificate of Recordation. The Register of Copyrights shall, upon receipt of a document as provided by subsection (a) and of the fee provided by section 708, record the document and return it with a certificate of recordation. (c) Recordation as Constructive Notice. Recordation of a document in the Copyright Office gives all persons constructive notice of the facts stated in the recorded document, but only if- (1) the document, or material attached to it, specifically identifies the work to which it pertains so that, after the document is indexed by the Register of Copyrights, it would be revealed by a reasonable search under the title or registration number of the work; and (2) registration has been made for the work. (d) Priority Between Conflicting Transfers. As between two conflicting transfers, the one executed first prevails if it is recorded, in the manner required to give constructive notice under subsection (c), within one month after its execution in the United States or within two months after its execution outside the United States, or at any time before recordation in such manner of the later transfer. Otherwise the later transfer prevails if recorded first in such manner, and if taken in good faith, for valuable consideration or on the basis of a binding promise to pay royalties, and without notice of the earlier transfer. (e) Priority Between Conflicting Transfer of Ownership and Nonexclusive License. A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed or such owner's duly authorized agent, and if (1) the license was taken before execution of the transfer; or (2) the license was taken in good faith before recordation of the transfer and without notice of it. ------------------ Chapter 2 Endnotes 1 In 1978, section 201(e) was amended by deleting the period at the end and adding ", except as provided under title 11." 2 Title 11 of the *United States Code* is entitled "Bankruptcy." 3 In 1998, the Sonny Bono Copyright Term Extension Act amended section 203 by deleting "by his widow or her widower and his or her grandchildren" from the first sentence in paragraph (2) of subsection (a) and by adding subparagraph (D) to paragraph (2). Pub. L. No. 105-298, 112 Stat. 2827, 2829. 4 The Berne Convention Implementation Act of 1988 amended section 205 by deleting subsection (d) and redesignating subsections (e) and (f) as subsections (d) and (e), respectively. Pub. L. No. 100-568, 102 Stat. 2853, 2857. ------------------------------------------------------------------------ Chapter 3 [1] Duration of Copyright + 301. Preemption with respect to other laws + 302. Duration of copyright: Works created on or after January 1, 1978 + 303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978 + 304. Duration of copyright: Subsisting copyrights + 305. Duration of copyright: Terminal date Section 301. Preemption with respect to other laws [2] (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to- (1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or (2) any cause of action arising from undertakings commenced before January 1, 1978; (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106; or (4) State and local landmarks, historic preservation, zoning, or building codes, relating to architectural works protected under section 102(a)(8). (c) With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067. (d) Nothing in this title annuls or limits any rights or remedies under any other Federal statute. (e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder. (f)(1) On or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, all legal or equitable rights that are equivalent to any of the rights conferred by section 106A with respect to works of visual art to which the rights conferred by section 106A apply are governed exclusively by section 106A and section 113(d) and the provisions of this title relating to such sections. Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or statutes of any State. [3] (2) Nothing in paragraph (1) annuls or limits any rights or remedies under the common law or statutes of any State with respect to- (A) any cause of action from undertakings commenced before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990; (B) activities violating legal or equitable rights that are not equivalent to any of the rights conferred by section 106A with respect to works of visual art; or (C) activities violating legal or equitable rights which extend beyond the life of the author. Section 302. Duration of copyright: Works created on or after January 1, 1978 [4] (a) In General. Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author's death. (b) Joint Works. In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author's death. (c) Anonymous Works, Pseudonymous Works, and Works Made for Hire. In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person's interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. (d) Records Relating to Death of Authors. Any person having an interest in a copyright may at any time record in the Copyright Office a statement of the date of death of the author of the copyrighted work, or a statement that the author is still living on a particular date. The statement shall identify the person filing it, the nature of that person's interest, and the source of the information recorded, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall maintain current records of information relating to the death of authors of copyrighted works, based on such recorded statements and, to the extent the Register considers practicable, on data contained in any of the records of the Copyright Office or in other reference sources. (e) Presumption as to Author's Death. After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefit of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title. Section 303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978 [5] (a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047. (b) The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein. Section 304. Duration of copyright: Subsisting copyrights [6] (a) Copyrights in Their First Term on January 1, 1978. (1)(A) Any copyright, in the first term of which is subsisting on January 1, 1978, shall endure for 28 years from the date it was originally secured. (B) In the case of- (i) any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or (ii) any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of 67 years. (C) In the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work- (i) the author of such work, if the author is still living, (ii) the widow, widower, or children of the author, if the author is not living, (iii) the author's executors, if such author, widow, widower, or children are not living, or (iv) the author's next of kin, in the absence of a will of the author, shall be entitled to a renewal and extension of the copyright in such work for a further term of 67 years. (2)(A) At the expiration of the original term of copyright in a work specified in paragraph (1)(B) of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which- (i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in the proprietor of the copyright who is entitled to claim the renewal of copyright at the time the application is made; or (ii) if no such application is made or the claim pursuant to such application is not registered, shall vest, upon the beginning of such further term, in the person or entity that was the proprietor of the copyright as of the last day of the original term of copyright. (B) At the expiration of the original term of copyright in a work specified in paragraph (1)(C) of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which- (i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in any person who is entitled under paragraph (1)(C) to the renewal and extension of the copyright at the time the application is made; or (ii) if no such application is made or the claim pursuant to such application is not registered, shall vest, upon the beginning of such further term, in any person entitled under paragraph (1)(C), as of the last day of the original term of copyright, to the renewal and extension of the copyright. (3)(A) An application to register a claim to the renewed and extended term of copyright in a work may be made to the Copyright Office- (i) within 1 year before the expiration of the original term of copyright by any person entitled under paragraph (1)(B) or (C) to such further term of 67 years; and (ii) at any time during the renewed and extended term by any person in whom such further term vested, under paragraph (2)(A) or (B), or by any successor or assign of such person, if the application is made in the name of such person. (B) Such an application is not a condition of the renewal and extension of the copyright in a work for a further term of 67 years. (4)(A) If an application to register a claim to the renewed and extended term of copyright in a work is not made within 1 year before the expiration of the original term of copyright in a work, or if the claim pursuant to such application is not registered, then a derivative work prepared under authority of a grant of a transfer or license of the copyright that is made before the expiration of the original term of copyright may continue to be used under the terms of the grant during the renewed and extended term of copyright without infringing the copyright, except that such use does not extend to the preparation during such renewed and extended term of other derivative works based upon the copyrighted work covered by such grant. (B) If an application to register a claim to the renewed and extended term of copyright in a work is made within 1 year before its expiration, and the claim is registered, the certificate of such registration shall constitute prima facie evidence as to the validity of the copyright during its renewed and extended term and of the facts stated in the certificate. The evidentiary weight to be accorded the certificates of a registration of a renewed and extended term of copyright made after the end of that 1-year period shall be within the discretion of the court. (b) Copyrights in Their Renewal Term at the Time of the Effective Date of the Sonny Bono Copyright Term Extension Act. [7] Any copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured. [8] (c) Termination of Transfers and Licenses Covering Extended Renewal Term. In the case of any copyright subsisting in either its first or renewal term on January 1, 1978, other than a copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated by subsection (a)(1)(C) of this section, otherwise than by will, is subject to termination under the following conditions: (1) In the case of a grant executed by a person or persons other than the author, termination of the grant may be effected by the surviving person or persons who executed it. In the case of a grant executed by one or more of the authors of the work, termination of the grant may be effected, to the extent of a particular author's share in the ownership of the renewal copyright, by the author who executed it or, if such author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one- half of that author's termination interest. (2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows: (A) the widow or widower owns the author's entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author's interest; (B) the author's surviving children, and the surviving children of any dead child of the author, own the author's entire termination interest unless there is a widow or widower, in which case the ownership of one- half of the author's interest is divided among them; (C) the rights of the author's children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author's children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them. (D) In the event that the author's widow or widower, children, and grandchildren are not living, the author's executor, administrator, personal representative, or trustee shall own the author's entire termination interest. (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later. (4) The termination shall be effected by serving an advance notice in writing upon the grantee or the grantee's successor in title. In the case of a grant executed by a person or persons other than the author, the notice shall be signed by all of those entitled to terminate the grant under clause (1) of this subsection, or by their duly authorized agents. In the case of a grant executed by one or more of the authors of the work, the notice as to any one author's share shall be signed by that author or his or her duly authorized agent or, if that author is dead, by the number and proportion of the owners of his or her termination interest required under clauses (1) and (2) of this subsection, or by their duly authorized agents. (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, or, in the case of a termination under subsection (d), within the five-year period specified by subsection (d)(2), and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. (B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant. (6) In the case of a grant executed by a person or persons other than the author, all rights under this title that were covered by the terminated grant revert, upon the effective date of termination, to all of those entitled to terminate the grant under clause (1) of this subsection. In the case of a grant executed by one or more of the authors of the work, all of a particular author's rights under this title that were covered by the terminated grant revert, upon the effective date of termination, to that author or, if that author is dead, to the persons owning his or her termination interest under clause (2) of this subsection, including those owners who did not join in signing the notice of termination under clause (4) of this subsection. In all cases the reversion of rights is subject to the following limitations: (A) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. (B) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of this subsection. (C) Where the author's rights revert to two or more persons under clause (2) of this subsection, they shall vest in those persons in the proportionate shares provided by that clause. In such a case, and subject to the provisions of subclause (D) of this clause, a further grant, or agreement to make a further grant, of a particular author's share with respect to any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under this clause, as are required to terminate the grant under clause (2) of this subsection. Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under this subclause, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person's legal representatives, legatees, or heirs at law represent him or her for purposes of this subclause. (D) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the author or any of the persons provided by the first sentence of clause (6) of this subsection, or between the persons provided by subclause (C) of this clause, and the original grantee or such grantee's successor in title, after the notice of termination has been served as provided by clause (4) of this subsection. (E) Termination of a grant under this subsection affects only those rights covered by the grant that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws. (F) Unless and until termination is effected under this subsection, the grant, if it does not provide otherwise, continues in effect for the remainder of the extended renewal term. (d) Termination Rights Provided in Subsection (c) Which Have Expired on or Before the Effective Date of the Sonny Bono Copyright Term Extension Act. In the case of any copyright other than a work made for hire, subsisting in its renewal term on the effective date of the Sonny Bono Copyright Term Extension Act [9] for which the termination right provided in subsection (c) has expired by such date, where the author or owner of the termination right has not previously exercised such termination right, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated in subsection (a)(1)(C) of this section, other than by will, is subject to termination under the following conditions: (1) The conditions specified in subsections (c) (1), (2), (4), (5), and (6) of this section apply to terminations of the last 20 years of copyright term as provided by the amendments made by the Sonny Bono Copyright Term Extension Act. (2) Termination of the grant may be effected at any time during a period of 5 years beginning at the end of 75 years from the date copyright was originally secured. Section 305. Duration of copyright: Terminal date All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire. ------------------ Chapter 3 Endnotes 1 Private Law 92-60, 85 Stat. 857, effective December 15, 1971, states that: [A]ny provision of law to the contrary notwithstanding, copyright is hereby granted to the trustees under the will of Mary Baker Eddy, their successors, and assigns, in the work "Science and Health with Key to the Scriptures" (entitled also in some editions "Science and Health" or "Science and Health; with a Key to the Scriptures"), by Mary Baker Eddy, including all editions thereof in English and translation heretofore published, or hereafter published by or on behalf of said trustees, their successors or assigns, for a term of seventy-five years from the effective date of this Act or from the date of first publication, whichever is later. But *cf. United Christian Scientists v. Christian Science Board of Directors, First Church of Christ, Scientist*, 829 F.2d 1152, 4 USPQ2d 1177 (D.C. Cir. 1987) (holding Priv. L. 92-60, 85 Stat. 857, to be unconstitutional because it violates the Establishment Clause). 2 The Berne Convention Implementation Act of 1988 amended section 301 by adding at the end thereof subsection (e). Pub. L. No. 100-568, 102 Stat. 2853, 2857. In 1990, the Architectural Works Copyright Protection Act amended section 301(b) by adding at the end thereof paragraph (4). Pub. L. No. 101-650, 104 Stat. 5133, 5134. The Visual Artists Rights Act of 1990 amended section 301 by adding at the end thereof subsection (f). Pub. L. No. 101-650, 104 Stat. 5089, 5131. In 1998, the Sonny Bono Copyright Term Extension Act amended section 301 by changing "February 15, 2047" to "February 15, 2067" each place it appeared in subsection (c). Pub. L. No. 105-298, 112 Stat. 2827. 3 The Visual Artists Rights Act of 1990, which added subsection (f), states, "Subject to subsection (b) and except as provided in subsection (c), this title and the amendments made by this title take effect 6 months after the date of the enactment of this Act," that is, six months after December 1, 1990. Pub. L. No. 101-650, 104 Stat. 5089, 5132. See also endnote 37, chapter 1. 4 In 1998, the Sonny Bono Copyright Term Extension Act amended section 302 by substituting "70" for "fifty," "95" for "seventy-five" and "120" for "one hundred" each place they appeared. Pub. L. No. 105-298, 112 Stat. 2827. 5 In 1997, section 303 was amended by adding subsection (b). Pub. L. No. 105-80, 111 Stat. 1529, 1534. In 1998, the Sonny Bono Copyright Term Extension Act amended section 303 by substituting "December 31, 2047" for "December 31, 2027." Pub. L. No. 105-298, 112 Stat. 2827. 6 The Copyright Renewal Act of 1992 amended section 304 by substituting a new subsection (a) and by making a conforming amendment in the matter preceding paragraph (1) of subsection (c). Pub. L. No. 102-307, 106 Stat. 264. The Act, as amended by the Sonny Bono Copyright Term Extension Act, states that the renewal and extension of a copyright for a further term of 67 years "shall have the same effect with respect to any grant, before the effective date of the Sonny Bono Copyright Term Extension Act [October 27, 1998], of a transfer or license of the further term as did the renewal of a copyright before the effective date of the Sonny Bono Copyright Term Extension Act [October 27, 1998] under the law in effect at the time of such grant." The Act also states that the 1992 amendments "shall apply only to those copyrights secured between January 1, 1964, and December 31, 1977. Copyrights secured before January 1, 1964, shall be governed by the provisions of section 304(a) of title 17, United States Code, as in effect on the day before . . .[enactment on June 26, 1992], except each reference to forty-seven years in such provisions shall be deemed to be 67 years." Pub. L. No. 102-307, 106 Stat. 264, 266, as amended by the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827, 2828. In 1998, the Sonny Bono Copyright Term Extension Act amended section 304 by substituting "67" for "47" wherever it appeared in subsection (a), by substituting a new subsection (b) and by adding subsection (d) at the end thereof. Pub. L. No. 105-298, 112 Stat. 2827. That Act also amended subsection 304(c) by deleting "by his widow or her widower and his or her children or grandchildren" from the first sentence of paragraph (2), by adding subparagraph (D) at the end of paragraph (2) and by inserting "or, in the case of a termination under subsection (d), within the five- year period specified by subsection (d)(2)," into the first sentence of subparagraph (4)(A). *Id.* 7 A series of nine Acts of Congress extended until December 31, 1976, previously renewed copyrights in which the renewal term would otherwise have expired between September 19, 1962 and December 31, 1976. The last of these enactments is Pub. L. No. 93-573, 88 Stat. 1873, enacted December 31, 1974, which cites the eight earlier acts. See also section 102 of the Transitional and Supplementary Provisions of the Copyright Act of 1976, in Part I of the Appendix. Pub. L. No. 94-553, 90 Stat. 2541. 8 The effective date of the Sonny Bono Copyright Term Extension Act is October 27, 1998. 9 See endnote 8, *supra*. ------------------------------------------------------------------------ Chapter 4 Copyright Notice, Deposit, and Registration + 401. Notice of copyright: Visually perceptible copies + 402. Notice of copyright: Phonorecords of sound recordings + 403. Notice of copyright: Publications incorporating United States Government works + 404. Notice of copyright: Contributions to collective works + 405. Notice of copyright: Omission of notice on certain copies and phonorecords + 406. Notice of copyright: Error in name or date on certain copies and phonorecords + 407. Deposit of copies or phonorecords for Library of Congress + 408. Copyright registration in general + 409. Application for copyright registration + 410. Registration of claim and issuance of certificate + 411. Registration and infringement actions + 412. Registration as prerequisite to certain remedies for infringement Section 401. Notice of copyright: Visually perceptible copies [1] (a) General Provisions. Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. (b) Form of Notice. If a notice appears on the copies, it shall consist of the following three elements: (1) the symbol (the letter C in a circle), or the word "Copyright", or the abbreviation "Copr."; and (2) the year of first publication of the work; in the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. (c) Position of Notice. The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive. (d) Evidentiary Weight of Notice. If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2). Section 402. Notice of copyright: Phonorecords of sound recordings [2] (a) General Provisions. Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed phonorecords of the sound recording. (b) Form of Notice. If a notice appears on the phonorecords, it shall consist of the following three elements: (1) the symbol [P in a circle] (the letter P in a circle); and (2) the year of first publication of the sound recording; and (3) the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice. (c) Position of Notice. The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright. (d) Evidentiary Weight of Notice. If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2). Section 403. Notice of copyright: Publications incorporating United States Government works [3] Sections 401(d) and 402(d) shall not apply to a work published in copies or phonorecords consisting predominantly of one or more works of the United States Government unless the notice of copyright appearing on the published copies or phonorecords to which a defendant in the copyright infringement suit had access includes a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title. Section 404. Notice of copyright: Contributions to collective works [4] (a) A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 401 through 403. However, a single notice applicable to the collective work as a whole is sufficient to invoke the provisions of section 401(d) or 402(d), as applicable with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the ownership of copyright in the contributions and whether or not they have been previously published. (b) With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, where the person named in a single notice applicable to a collective work as a whole is not the owner of copyright in a separate contribution that does not bear its own notice, the case is governed by the provisions of section 406(a). Section 405. Notice of copyright: Omission of notice on certain copies and phonorecords [5] (a) Effect of Omission on Copyright. With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, the omission of the copyright notice described in sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if- (1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or (2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or (3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization of the public distribution of copies or phonorecords, they bear the prescribed notice. (b) Effect of Omission on Innocent Infringers. Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer's profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition for permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. (c) Removal of Notice. Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords. Section 406. Notice of copyright: Error in name or date on certain copies and phonorecords [6] (a) Error in Name. With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, where the person named in the copyright notice on copies or phonorecords publicly distributed by authority of the copyright owner is not the owner of copyright, the validity and ownership of the copyright are not affected. In such a case, however, any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein, unless before the undertaking was begun- (1) registration for the work had been made in the name of the owner of copyright; or (2) a document executed by the person named in the notice and showing the ownership of the copyright had been recorded. The person named in the notice is liable to account to the copyright owner for all receipts from transfers or licenses purportedly made under the copyright by the person named in the notice. (b) Error in Date. When the year date in the notice on copies or phonorecords distributed before the effective date of the Berne Convention Implementation Act of 1988 by authority of the copyright owner is earlier than the year in which publication first occurred, any period computed from the year of first publication under section 302 is to be computed from the year in the notice. Where the year date is more than one year later than the year in which publication first occurred, the work is considered to have been published without any notice and is governed by the provisions of section 405. (c) Omission of Name or Date. Where copies or phonorecords publicly distributed before the effective date of the Berne Convention Implementation Act of 1988 by authority of the copyright owner contain no name or no date that could reasonably be considered a part of the notice, the work is considered to have been published without any notice and is governed by the provisions of section 405 as in effect on the day before the effective date of the Berne Convention Implementation Act of 1988. Section 407. Deposit of copies or phonorecords for Library of Congress [7] (a) Except as provided by subsection (c), and subject to the provisions of subsection (e), the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication- (1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords. Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection. (b) The required copies or phonorecords shall be deposited in the Copyright Office for the use or disposition of the Library of Congress. The Register of Copyrights shall, when requested by the depositor and upon payment of the fee prescribed by section 708, issue a receipt for the deposit. (c) The Register of Copyrights may by regulation exempt any categories of material from the deposit requirements of this section, or require deposit of only one copy or phonorecord with respect to any categories. Such regulations shall provide either for complete exemption from the deposit requirements of this section, or for alternative forms of deposit aimed at providing a satisfactory archival record of a work without imposing practical or financial hardships on the depositor, where the individual author is the owner of copyright in a pictorial, graphic, or sculptural work and (i) less than five copies of the work have been published, or (ii) the work has been published in a limited edition consisting of numbered copies, the monetary value of which would make the mandatory deposit of two copies of the best edition of the work burdensome, unfair, or unreasonable. (d) At any time after publication of a work as provided by subsection(a), the Register of Copyrights may make written demand for the required deposit on any of the persons obligated to make the deposit under subsection (a). Unless deposit is made within three months after the demand is received, the person or persons on whom the demand was made are liable- (1) to a fine of not more than $250 for each work; and (2) to pay into a specially designated fund in the Library of Congress the total retail price of the copies or phonorecords demanded, or, if no retail price has been fixed, the reasonable cost to the Library of Congress of acquiring them; and (3) to pay a fine of $2,500, in addition to any fine or liability imposed under clauses (1) and (2), if such person willfully or repeatedly fails or refuses to comply with such a demand. (e) With respect to transmission programs that have been fixed and transmitted to the public in the United States but have not been published, the Register of Copyrights shall, after consulting with the Librarian of Congress and other interested organizations and officials, establish regulations governing the acquisition, through deposit or otherwise, of copies or phonorecords of such programs for the collections of the Library of Congress. (1) The Librarian of Congress shall be permitted, under the standards and conditions set forth in such regulations, to make a fixation of a transmission program directly from a transmission to the public, and to reproduce one copy or phonorecord from such fixation for archival purposes. (2) Such regulations shall also provide standards and procedures by which the Register of Copyrights may make written demand, upon the owner of the right of transmission in the United States, for the deposit of a copy or phonorecord of a specific transmission program. Such deposit may, at the option of the owner of the right of transmission in the United States, be accomplished by gift, by loan for purposes of reproduction, or by sale at a price not to exceed the cost of reproducing and supplying the copy or phonorecord. The regulations established under this clause shall provide reasonable periods of not less than three months for compliance with a demand, and shall allow for extensions of such periods and adjustments in the scope of the demand or the methods for fulfilling it, as reasonably warranted by the circumstances. Willful failure or refusal to comply with the conditions prescribed by such regulations shall subject the owner of the right of transmission in the United States to liability for an amount, not to exceed the cost of reproducing and supplying the copy or phonorecord in question, to be paid into a specially designated fund in the Library of Congress. (3) Nothing in this subsection shall be construed to require the making or retention, for purposes of deposit, of any copy or phonorecord of an unpublished transmission program, the transmission of which occurs before the receipt of a specific written demand as provided by clause (2). (4) No activity undertaken in compliance with regulations prescribed under clauses (1) and (2) of this subsection shall result in liability if intended solely to assist in the acquisition of copies or phonorecords under this subsection. Section 408. Copyright registration in general [8] (a) Registration Permissive. At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection. (b) Deposit for Copyright Registration. Except as provided by subsection (c), the material deposited for registration shall include- (1) in the case of an unpublished work, one complete copy or phonorecord; (2) in the case of a published work, two complete copies or phonorecords of the best edition; (3) in the case of a work first published outside the United States, one complete copy or phonorecord as so published; (4) in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work. Copies or phonorecords deposited for the Library of Congress under section 407 may be used to satisfy the deposit provisions of this section, if they are accompanied by the prescribed application and fee, and by any additional identifying material that the Register may, by regulation, require. The Register shall also prescribe regulations establishing requirements under which copies or phonorecords acquired for the Library of Congress under subsection (e) of section 407, otherwise than by deposit, may be used to satisfy the deposit provisions of this section. (c) Administrative Classification and Optional Deposit. (1) The Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be deposited in the various classes specified. The regulations may require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works. This administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title. (2) Without prejudice to the general authority provided under clause (1), the Register of Copyrights shall establish regulations specifically permitting a single registration for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, within a twelve-month period, on the basis of a single deposit, application, and registration fee, under the following conditions- (A) if the deposit consists of one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribution was first published; and (B) if the application identifies each work separately, including the periodical containing it and its date of first publication. (3) As an alternative to separate renewal registrations under subsection (a) of section 304, a single renewal registration may be made for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, upon the filing of a single application and fee, under all of the following conditions: (A) the renewal claimant or claimants, and the basis of claim or claims under section 304(a), is the same for each of the works; and (B) the works were all copyrighted upon their first publication, either through separate copyright notice and registration or by virtue of a general copyright notice in the periodical issue as a whole; and (C) the renewal application and fee are received not more than twenty- eight or less than twenty-seven years after the thirty-first day of December of the calendar year in which all of the works were first published; and (D) the renewal application identifies each work separately, including the periodical containing it and its date of first publication. (d) Corrections and Amplifications. The Register may also establish, by regulation, formal procedures for the filing of an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration. Such application shall be accompanied by the fee provided by section 708, and shall clearly identify the registration to be corrected or amplified. The information contained in a supplementary registration augments but does not supersede that contained in the earlier registration. (e) Published Edition of Previously Registered Work. Registration for the first published edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version. Section 409. Application for copyright registration [9] The application for copyright registration shall be made on a form prescribed by the Register of Copyrights and shall include (1) the name and address of the copyright claimant; (2) in the case of a work other than an anonymous or pseudonymous work, the name and nationality or domicile of the author or authors, and, if one or more of the authors is dead, the dates of their deaths; (3) if the work is anonymous or pseudonymous, the nationality or domicile of the author or authors; (4) in the case of a work made for hire, a statement to this effect; (5) if the copyright claimant is not the author, a brief statement of how the claimant obtained ownership of the copyright; (6) the title of the work, together with any previous or alternative titles under which the work can be identified; (7) the year in which creation of the work was completed; (8) if the work has been published, the date and nation of its first publication; (9) in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered; (10) in the case of a published work containing material of which copies are required by section 601 to be manufactured in the United States, the names of the persons or organizations who performed the processes specified by subsection (c) of section 601 with respect to that material, and the places where those processes were performed; and (11) any other information regarded by the Register of Copyrights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright. If an application is submitted for the renewed and extended term provided for in section 304(a)(3)(A) and an original term registration has not been made, the Register may request information with respect to the existence, ownership, or duration of the copyright for the original term. Section 410. Registration of claim and issuance of certificate (a) When, after examination, the Register of Copyrights determines that, in accordance with the provisions of this title, the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met, the Register shall register the claim and issue to the applicant a certificate of registration under the seal of the Copyright Office. The certificate shall contain the information given in the application, together with the number and effective date of the registration. (b) In any case in which the Register of Copyrights determines that, in accordance with the provisions of this title, the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal. (c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute *prima facie* evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court. (d) The effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office. Section 411. Registration and infringement actions [10] (a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue. (b) In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copyright owner- (1) serves notice upon the infringer, not less than 48 hours before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and (2) makes registration for the work, if required by subsection (a), within three months after its first transmission. Section 412. Registration as prerequisite to certain remedies for infringement [11] In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) or an action instituted under section 411(b), no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. ------------------ Chapter 4 Endnotes 1 The Berne Convention Implementation Act of 1988 amended section 401 as follows: 1) in subsection (a), by changing the heading to "General Provisions" and by inserting "may be placed on" in lieu of "shall be placed on all"; 2) in subsection (b), by inserting "If a notice appears on the copies, it" in lieu of "The notice appearing on the copies"; and 3) by adding subsection (d). Pub. L. No. 100-568, 102 Stat. 2853, 2857. 2 The Berne Convention Implementation Act of 1988 amended section 402 as follows: 1) in subsection (a), by changing the heading to "General Provisions" and by inserting "may be placed on" in lieu of "shall be placed on all"; 2) in subsection (b), by inserting "If a notice appears on the phonorecords, it" in lieu of "The notice appearing on the phonorecords"; and 3) by adding subsection (d). Pub. L. No. 100-568, 102 Stat. 2853, 2857. 3 The Berne Convention Implementation Act of 1988 amended section 403 in its entirety. Pub. L. No. 100-568, 102 Stat. 2853, 2858. 4 The Berne Convention Implementation Act of 1988 amended section 404 as follows: 1) in the second sentence of subsection (a), by inserting "to invoke the provisions of section 401(d) or 402(d), as applicable" in lieu of "to satisfy the requirements of sections 401 through 403" and 2) in subsection (b), by inserting "With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988," at the beginning of the sentence. Pub. L. No. 100-568, 102 Stat. 2853, 2858. 5 The Berne Convention Implementation Act of 1988 amended section 405 as follows: 1) in subsection (a), by inserting "With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, the omission of the copyright notice described in" at the beginning of the first sentence, in lieu of "The omission of the copyright notice prescribed by"; 2) in subsection (b), by inserting after "omitted," in the first sentence, "and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988"; and 3) by amending the section heading to add "on certain copies and phonorecords" at the end thereof. Pub. L. No. 100-568, 102 Stat. 2853, 2858. 6 The Berne Convention Implementation Act of 1988 amended section 406 as follows: 1) in subsection (a), by inserting "With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988," at the beginning of the first sentence; 2) in subsection (b), by inserting "before the effective date of the Berne Convention Implementation Act of 1988" after "distributed"; 3) in subsection (c), by inserting "before the effective date of the Berne Convention Implementation Act of 1988" after "publicly distributed" and by inserting "as in effect on the day before the effective date of the Berne Convention Implementation Act of 1988" after "405"; and 4) by amending the section heading to add "on certain copies and phonorecords" at the end thereof. Pub. L. No. 100-568, 102 Stat. 2853, 2858. 7 The Berne Convention Implementation Act of 1988 amended section 407 by striking out the words "with notice of copyright" in subsection (a). Pub. L. No. 100-568, 102 Stat. 2853, 2859. 8 The Berne Convention Implementation Act of 1988 amended section 408 by deleting "Subject to the provisions of section 405(a)," at the beginning of the second sentence of subsection (a). Pub. L. No. 100-568, 102 Stat. 2853, 2859. That Act also amended section 408(c)(2) by inserting "the following conditions:" in lieu of "all of the following conditions" and by striking subparagraph (A) and by redesignating subparagraphs (B) and (C) as subparagraphs (A) and (B), respectively. *Id.* The Copyright Renewal Act of 1992 amended section 408 by revising the first sentence of subsection (a), preceding the words "the owner of copyright or of any exclusive right." Pub. L. No. 102-307, 106 Stat. 264, 266. 9 The Copyright Renewal Act of 1992 amended section 409 by adding the last sentence. Pub. L. No. 102-307, 106 Stat. 264, 266. 10 The Berne Convention Implementation Act of 1988 amended section 411 as follows: 1) in subsection (a), by inserting "Except for actions for infringement of copyright in Berne Convention works whose country of origin is not the United States, and" before "subject"; 2) in paragraph (b)(2), by inserting ", if required by subsection (a)," after "work"; and 3) by inserting "and infringement actions" in the heading, in lieu of "as prerequisite to infringement suit." Pub. L. No. 100-568, 102 Stat. 2853, 2859. The Visual Artists Rights Act of 1990 amended section 411(a) by inserting "and an action brought for a violation of the rights of the author under section 106A(a)" after "United States." Pub. L. No. 101-650, 104 Stat. 5089, 5131. In 1997, section 411(b)(1) was amended in its entirety. Pub. L. No. 105-80, 111 Stat. 1529, 1532. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended the first sentence in section 411(a) by deleting "actions for infringement of copyright in Berne Convention works whose country of origin is not the United and" and by inserting "United States" after "no action for infringement of the copyright in any." Pub. L. No. 105-304, 112 Stat. 2860, 2863. 11 The Visual Artists Rights Act of 1990 amended section 412 by inserting "an action brought for a violation of the rights of the author under section 106A(a) or" after "other than." Pub. L. No. 101-650, 104 Stat. 5089, 5131. ------------------------------------------------------------------------ Chapter 5 [1] Copyright Infringement and Remedies + 501. Infringement of copyright + 502. Remedies for infringement: Injunctions + 503. Remedies for infringement: Impounding and disposition of infringing articles + 504. Remedies for infringement: Damages and profits + 505. Remedies for infringement: Costs and attorney's fees + 506. Criminal offenses + 507. Limitations on actions + 508. Notification of filing and determination of actions + 509. Seizure and forfeiture + 510. Remedies for alteration of programming by cable systems + 511. Liability of States, instrumentalities of States, and State officials for infringement of copyright + 512. Limitations on liability relating to material online + 513. [2] Determination of reasonable license fees for individual proprietors Section 501. Infringement of copyright [3] (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term "anyone" includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright. (c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station. (d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been altered by the cable system; and (ii) any broadcast station within whose local service area the secondary transmission occurs. (e) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 119(a)(5), a network station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station. (f)(1) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station. (2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station's rights under section 338(a) of the Communications Act of 1934. Section 502. Remedies for infringement: Injunctions (a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright. (b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk's office. Section 503. Remedies for infringement: Impounding and disposition of infringing articles (a) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. (b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. Section 504. Remedies for infringement: Damages and profits [4] (a) In General. Except as otherwise provided by this title, an infringer of copyright is liable for either- (1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). (b) Actual Damages and Profits. The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. (c) Statutory Damages. (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work. (d) Additional Damages in Certain Cases. In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years. Section 505. Remedies for infringement: Costs and attorney's fees In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs. Section 506. Criminal offenses [5] (a) Criminal Infringement. Any person who infringes a copyright willfully either (1) for purposes of commercial advantage or private financial gain, or (2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement. (b) Forfeiture and Destruction. When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall, in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all infringing copies or phonorecords and all implements, devices, or equipment used in the manufacture of such infringing copies or phonorecords. (c) Fraudulent Copyright Notice. Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500. (d) Fraudulent Removal of Copyright Notice. Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500. (e) False Representation. Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500. (f) Rights of Attribution and Integrity. Nothing in this section applies to infringement of the rights conferred by section 106A(a). Section 507. Limitations on actions [6] (a) Criminal Proceedings. Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose. (b) Civil Actions. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. Section 508. Notification of filing and determination of actions (a) Within one month after the filing of any action under this title, the clerks of the courts of the United States shall send written notification to the Register of Copyrights setting forth, as far as is shown by the papers filed in the court, the names and addresses of the parties and the title, author, and registration number of each work involved in the action. If any other copyrighted work is later included in the action by amendment, answer, or other pleading, the clerk shall also send a notification concerning it to the Register within one month after the pleading is filed. (b) Within one month after any final order or judgment is issued in the case, the clerk of the court shall notify the Register of it, sending with the notification a copy of the order or judgment together with the written opinion, if any, of the court. (c) Upon receiving the notifications specified in this section, the Register shall make them a part of the public records of the Copyright Office. Section 509. Seizure and forfeiture (a) All copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of section 506 (a), and all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced, and all electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords may be seized and forfeited to the United States. (b) The applicable procedures relating to (i) the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violations of the customs laws contained in title 19, (ii) the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof, (iii) the remission or mitigation of such forfeiture, (iv) the compromise of claims, and (v) the award of compensation to informers in respect of such forfeitures, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions of this section; except that such duties as are imposed upon any officer or employee of the Treasury Department or any other person with respect to the seizure and forfeiture of vessels, vehicles, merchandise, and baggage under the provisions of the customs laws contained in title 19 shall be performed with respect to seizure and forfeiture of all articles described in subsection (a) by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General. Section 510. Remedies for alteration of programming by cable systems [7] (a) In any action filed pursuant to section 111(c)(3), the following remedies shall be available: (1) Where an action is brought by a party identified in subsections (b) or (c) of section 501, the remedies provided by sections 502 through 505, and the remedy provided by subsection (b) of this section; and (2) When an action is brought by a party identified in subsection (d) of section 501, the remedies provided by sections 502 and 505, together with any actual damages suffered by such party as a result of the infringement, and the remedy provided by subsection (b) of this section. (b) In any action filed pursuant to section 111(c)(3), the court may decree that, for a period not to exceed thirty days, the cable system shall be deprived of the benefit of a statutory license for one or more distant signals carried by such cable system. Section 511. Liability of States, instrumentalities of States, and State officials for infringement of copyright [8] (a) In General. Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 121, for importing copies of phonorecords in violation of section 602, or for any other violation under this title. (b) Remedies. In a suit described in subsection (a) for a violation described in that subsection, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State, instrumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include impounding and disposition of infringing articles under section 503, actual damages and profits and statutory damages under section 504, costs and attorney's fees under section 505, and the remedies provided in section 510. Section 512. Limitations on liability relating to material online [9] (a) Transitory Digital Network Communications. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if- (1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and (5) the material is transmitted through the system or network without modification of its content. (b) System Caching. (1) Limitation on Liability. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which- (A) the material is made available online by a person other than the service provider; (B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and (C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met. (2) Conditions. The conditions referred to in paragraph (1) are that- (A) the material described in paragraph (1) is transmitted to the subsequent users described in paragraph (1)(C) without modification to its content from the manner in which the material was transmitted from the person described in paragraph (1)(A); (B) the service provider described in paragraph (1) complies with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online in accordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available, except that this subparagraph applies only if those rules are not used by the person described in paragraph (1)(A) to prevent or unreasonably impair the intermediate storage to which this subsection applies; (C) the service provider does not interfere with the ability of technology associated with the material to return to the person described in paragraph (1)(A) the information that would have been available to that person if the material had been obtained by the subsequent users described in paragraph (1)(C) directly from that person, except that this subparagraph applies only if that technology- (i) does not significantly interfere with the performance of the provider's system or network or with the intermediate storage of the material; (ii) is consistent with generally accepted industry standard communications protocols; and (iii) does not extract information from the provider's system or network other than the information that would have been available to the person described in paragraph (1)(A) if the subsequent users had gained access to the material directly from that person; (D) if the person described in paragraph (1)(A) has in effect a condition that a person must meet prior to having access to the material, such as a condition based on payment of a fee or provision of a password or other information, the service provider permits access to the stored material in significant part only to users of its system or network that have met those conditions and only in accordance with those conditions; and (E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in subsection (c)(3), except that this subparagraph applies only if- (i) the material has previously been removed from the originating site or access to it has been disabled, or a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled; and (ii) the party giving the notification includes in the notification a statement confirming that the material has been removed from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled. (c) Information Residing on Systems or Networks at Direction of Users. (1) In General. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider- (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. (2) Designated Agent. The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information: (A) the name, address, phone number, and electronic mail address of the agent. (B) other contact information which the Register of Copyrights may deem appropriate. The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory. (3) Elements of Notification. (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. (ii) In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A). (d) Information Location Tools. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider- (1)(A) does not have actual knowledge that the material or activity is infringing; (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link. (e) Limitation on Liability of Nonprofit Educational Institutions. (1) When a public or other nonprofit institution of higher education is a service provider, and when a faculty member or graduate student who is an employee of such institution is performing a teaching or research function, for the purposes of subsections (a) and (b) such faculty member or graduate student shall be considered to be a person other than the institution, and for the purposes of subsections (c) and (d) such faculty member's or graduate student's knowledge or awareness of his or her infringing activities shall not be attributed to the institution, if- (A) such faculty member's or graduate student's infringing activities do not involve the provision of online access to instructional materials that are or were required or recommended, within the preceding 3-year period, for a course taught at the institution by such faculty member or graduate student; (B) the institution has not, within the preceding 3-year period, received more than 2 notifications described in subsection (c)(3) of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f); and (C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright. (2) For the purposes of this subsection, the limitations on injunctive relief contained in subsections (j)(2) and (j)(3), but not those in (j) (1), shall apply. (f) Misrepresentations. Any person who knowingly materially misrepresents under this section- (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. (g) Replacement of Removed or Disabled Material and Limitation on Other Liability. (1) No Liability for Taking Down Generally. Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing. (2) Exception. Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider- (A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material; (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will re-place the removed material or cease disabling access to it in 10 business days; and (C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network. (3) Contents of Counter Notification. To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following: (A) A physical or electronic signature of the subscriber. (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. (D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. (4) Limitation on Other Liability. A service provider's compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C). (h) Subpoena to Identify Infringer. (1) Request. A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection. (2) Contents of Request. The request may be made by filing with the clerk- (A) a copy of a notification described in subsection (c)(3)(A); (B) a proposed subpoena; and (C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title. (3) Contents of Subpoena. The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider. (4) Basis for Granting Subpoena. If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider. (5) Actions of Service Provider Receiving Subpoena. Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification. (6) Rules Applicable to Subpoena. Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum. (i) Conditions for Eligibility. (1) Accommodation of Technology. The limitations on liability established by this section shall apply to a service provider only if the service provider- (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and (B) accommodates and does not interfere with standard technical measures. (2) Definition. As used in this subsection, the term "standard technical measures" means technical measures that are used by copyright owners to identify or protect copyrighted works and- (A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; (B) are available to any person on reasonable and nondiscriminatory terms; and (C) do not impose substantial costs on service providers or substantial burdens on their systems or networks. (j) Injunctions. The following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section: (1) Scope of Relief. (A) With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms: (i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider's system or network. (ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. (iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose. (B) If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms: (i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is using the provider's service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. (ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. (2) Considerations. The court, in considering the relevant criteria for injunctive relief under applicable law, shall consider- (A) whether such an injunction, either alone or in combination with other such injunctions issued against the same service provider under this subsection, would significantly burden either the provider or the operation of the provider's system or network; (B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement; (C) whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations; and (D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available. (3) Notice and Ex Parte Orders. Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider's communications network. (k) Definitions. (1) Service Provider. (A) As used in subsection (a), the term "service provider" means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received. (B) As used in this section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A). (2) Monetary Relief. As used in this section, the term "monetary relief" means damages, costs, attorneys' fees, and any other form of monetary payment. (l) Other Defenses Not Affected. The failure of a service provider's conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider's conduct is not infringing under this title or any other defense. (m) Protection of Privacy. Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on- (1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (i); or (2) a service provider gaining access to, removing, or disabling access to material in cases in which such conduct is prohibited by law. (n) Construction. Subsections (a), (b), (c), and (d) describe separate and distinct functions for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualifies for the limitations on liability under any other such subsection. Section 513. Determination of reasonable license fees for individual proprietors [10] In the case of any performing rights society subject to a consent decree which provides for the determination of reasonable license rates or fees to be charged by the performing rights society, notwithstanding the provisions of that consent decree, an individual proprietor who owns or operates fewer than 7 non-publicly traded establishments in which nondramatic musical works are performed publicly and who claims that any license agreement offered by that performing rights society is unreasonable in its license rate or fee as to that individual proprietor, shall be entitled to determination of a reasonable license rate or fee as follows: (1) The individual proprietor may commence such proceeding for determination of a reasonable license rate or fee by filing an application in the applicable district court under paragraph (2) that a rate disagreement exists and by serving a copy of the application on the performing rights society. Such proceeding shall commence in the applicable district court within 90 days after the service of such copy, except that such 90-day requirement shall be subject to the administrative requirements of the court. (2) The proceeding under paragraph (1) shall be held, at the individual proprietor's election, in the judicial district of the district court with jurisdiction over the applicable consent decree or in that place of holding court of a district court that is the seat of the Federal circuit (other than the Court of Appeals for the Federal Circuit) in which the proprietor's establishment is located. (3) Such proceeding shall be held before the judge of the court with jurisdiction over the consent decree governing the performing rights society. At the discretion of the court, the proceeding shall be held before a special master or magistrate judge appointed by such judge. Should that consent decree provide for the appointment of an advisor or advisors to the court for any purpose, any such advisor shall be the special master so named by the court. (4) In any such proceeding, the industry rate shall be presumed to have been reasonable at the time it was agreed to or determined by the court. Such presumption shall in no way affect a determination of whether the rate is being correctly applied to the individual proprietor. (5) Pending the completion of such proceeding, the individual proprietor shall have the right to perform publicly the copyrighted musical compositions in the repertoire of the performing rights society by paying an interim license rate or fee into an interest bearing escrow account with the clerk of the court, subject to retroactive adjustment when a final rate or fee has been determined, in an amount equal to the industry rate, or, in the absence of an industry rate, the amount of the most recent license rate or fee agreed to by the parties. (6) Any decision rendered in such proceeding by a special master or magistrate judge named under paragraph (3) shall be reviewed by the judge of the court with jurisdiction over the consent decree governing the performing rights society. Such proceeding, including such review, shall be concluded within 6 months after its commencement. (7) Any such final determination shall be binding only as to the individual proprietor commencing the proceeding, and shall not be applicable to any other proprietor or any other performing rights society, and the performing rights society shall be relieved of any obligation of nondiscrimination among similarly situated music users that may be imposed by the consent decree governing its operations. (8) An individual proprietor may not bring more than one proceeding provided for in this section for the determination of a reasonable license rate or fee under any license agreement with respect to any one performing rights society. (9) For purposes of this section, the term "industry rate" means the license fee a performing rights society has agreed to with, or which has been determined by the court for, a significant segment of the music user industry to which the individual proprietor belongs. ------------------ Chapter 5 Endnotes 1 Concerning the liability of the United States Government for copyright infringement, see 28 U.S.C. 1498. Title 28 of the *United States Code* is entitled "Judiciary and Judicial Procedure." 2 In 1998, two sections 512 were enacted into law. On October 17, 1998, the Fairness in Music Licensing Act of 1998 was enacted. This Act amended chapter five to add section 512 entitled "Determination of reasonable license fees for individual proprietors." Pub. L. No. 105-298, 112 Stat. 2827, 2831. On October 28, 1998, the Online Copyright Infringement Liability Limitation Act was enacted. This Act amended chapter five to add section 512 entitled "Limitations on liability relating to material online." Pub. L. No. 105-304, 112 Stat. 2860, 2877. In 1999, a technical correction was enacted to redesignate the section 512 that was entitled "Determination of reasonable license fees for individual proprietors" as section 513. Also, the table of sections was amended to reflect that change. Pub. L. No. 106-44, 113 Stat. 221. See also endnote 10*, infra.* 3 The Berne Convention Implementation Act of 1988 amended section 501(b) by striking out "sections 205(d) and 411" and inserting in lieu thereof "section 411." Pub. L. No. 100-568, 102 Stat. 2853, 2860. The Satellite Home Viewer Act of 1988 amended section 501 by adding subsection (e). Pub. L. No. 100-667, 102 Stat. 3935, 3957. In 1990, the Copyright Remedy Clarification Act amended section 501(a) by adding the last two sentences. Pub. L. No. 101-553, 104 Stat. 2749. The Visual Artists Rights Act of 1990 also amended section 501(a) as follows: 1) by inserting "or of the author as provided in section 106A(a)" after "118" and 2) by striking out "copyright." and inserting in lieu thereof "copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a)." Pub. L. No. 101-650, 104 Stat. 5089, 5131. In 1999, a technical correction amended the first sentence in subsection 501(a) by inserting "121" in lieu of "118." Pub. L. No. 106-44, 113 Stat. 221, 222. The Satellite Home Viewer Improvement Act of 1999 amended section 501 by adding a subsection (f) and, in subsection (e), by inserting "performance or display of a work embodied in a primary transmission" in lieu of "primary transmission embodying the performance or display of a work." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-527 and 544. The Satellite Home Viewer Improvement Act of 1999 states that section 501(f) shall be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. 4 The Berne Convention Implementation Act of 1988 amended section 504(c) as follows: 1) in paragraph (1), by inserting "$500" in lieu of "$250" and by inserting "$20,000" in lieu of "$10,000" and 2) in paragraph (2), by inserting "$100,000" in lieu of "$50,000" and by inserting "$200" in lieu of "$100." Pub. L. No. 100-568, 102 Stat. 2853, 2860. The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 amended section 504(c), in paragraph (1), by substituting "$750" for "$500" and "$30,000" for "$20,000" and, in paragraph (2), by substituting "$150,000" for "$100,000." Pub. L. No. 106-160, 113 Stat. 1774. 5 The Piracy and Counterfeiting Amendments Act of 1982 amended section 506 by substituting a new subsection(a). Pub. L. No. 97-180, 96 Stat. 91, 93. The Visual Artists Rights Act of 1990 amended section 506 by adding subsection (f). Pub. L. No.101-650, 104 Stat. 5089, 5131. In 1997, the No Electronic Theft (NET) Act again amended section 506 by amending subsection (a) in its entirety. Pub. L. No. 105-147, 111 Stat. 2678. That Act also directed the United States Sentencing Commission to "ensure that the applicable guideline range for a defendant convicted of a crime against intellectual property . . . is sufficiently stringent to deter such a crime" and to "ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the crime against intellectual property was committed." Pub. L. No. 105-147, 111 Stat. 2678, 2680. See also endnote 2 in Part VII of the Appendix. 6 In 1997, the No Electronic Theft (NET) Act amended section 507(a) by inserting "5" in lieu of "three." Pub. L. No. 105-147, 111 Stat. 2678. 7 The Satellite Home Viewer Improvement Act of 1999 amended the heading for section 510 by substituting "programming" for "programing" and, in subsection (b), by substituting "statutory" for "compulsory." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-543. 8 In 1990, the Copyright Remedy Clarification Act added section 511. Pub. L. No. 101-553, 104 Stat. 2749. In 1999, a technical correction amended subsection 511(a) by inserting "121" in lieu of "119." Pub. L. No. 106-44, 113 Stat. 221, 222. 9 In 1998, the Online Copyright Infringement Liability Limitation Act added section 512. Pub. L. No. 105-304, 112 Stat. 2860, 2877. In 1999, a technical correction deleted the heading for paragraph (2) of section 512(e), which was "Injunctions." Pub. L. No. 106-44, 113 Stat. 221, 222. 10 The Fairness in Music Licensing Act of 1998 added section 513. Pub. L. No. 105-298, 112 Stat. 2827, 2831. This section was originally designated as section 512. However, because two sections 512 had been enacted into law in 1998, a technical amendment redesignated this as section 513. Pub. L. No. 106-44, 113 Stat. 221. See also endnote 2*, supra.* ------------------------------------------------------------------------ Chapter 6 Manufacturing Requirements and Importation + 601. Manufacture, importation, and public distribution of certain copies + 602. Infringing importation of copies or phonorecords + 603. Importation prohibitions: Enforcement and disposition of excluded articles Section 601. Manufacture, importation, and public distribution of certain copies [1] (a) Prior to July 1, 1986, and except as provided by subsection (b), the importation into or public distribution in the United States of copies of a work consisting preponderantly of nondramatic literary material that is in the English language and is protected under this title is prohibited unless the portions consisting of such material have been manufactured in the United States or Canada. (b) The provisions of subsection (a) do not apply- (1) where, on the date when importation is sought or public distribution in the United States is made, the author of any substantial part of such material is neither a national nor a domiciliary of the United States or, if such author is a national of the United States, he or she has been domiciled outside the United States for a continuous period of at least one year immediately preceding that date; in the case of a work made for hire, the exemption provided by this clause does not apply unless a substantial part of the work was prepared for an employer or other person who is not a national or domiciliary of the United States or a domestic corporation or enterprise; (2) where the United States Customs Service is presented with an import statement issued under the seal of the Copyright Office, in which case a total of no more than two thousand copies of any one such work shall be allowed entry; the import statement shall be issued upon request to the copyright owner or to a person designated by such owner at the time of registration for the work under section 408 or at any time thereafter; (3) where importation is sought under the authority or for the use, other than in schools, of the Government of the United States or of any State or political subdivision of a State; (4) where importation, for use and not for sale, is sought- (A) by any person with respect to no more than one copy of any work at any one time; (B) by any person arriving from outside the United States, with respect to copies forming part of such person's personal baggage; or (C) by an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to copies intended to form a part of its library; (5) where the copies are reproduced in raised characters for the use of the blind; or (6) where, in addition to copies imported under clauses (3) and (4) of this subsection, no more than two thousand copies of any one such work, which have not been manufactured in the United States or Canada, are publicly distributed in the United States; or (7) where, on the date when importation is sought or public distribution in the United States is made- (A) the author of any substantial part of such material is an individual and receives compensation for the transfer or license of the right to distribute the work in the United States; and (B) the first publication of the work has previously taken place outside the United States under a transfer or license granted by such author to a transferee or licensee who was not a national or domiciliary of the United States or a domestic corporation or enterprise; and (C) there has been no publication of an authorized edition of the work of which the copies were manufactured in the United States; and (D) the copies were reproduced under a transfer or license granted by such author or by the transferee or licensee of the right of first publication as mentioned in subclause (B), and the transferee or the licensee of the right of reproduction was not a national or domiciliary of the United States or a domestic corporation or enterprise. (c) The requirement of this section that copies be manufactured in the United States or Canada is satisfied if- (1) in the case where the copies are printed directly from type that has been set, or directly from plates made from such type, the setting of the type and the making of the plates have been performed in the United States or Canada; or (2) in the case where the making of plates by a lithographic or photoengraving process is a final or intermediate step preceding the printing of the copies, the making of the plates has been performed in the United States or Canada; and (3) in any case, the printing or other final process of producing multiple copies and any binding of the copies have been performed in the United States or Canada. (d) Importation or public distribution of copies in violation of this section does not invalidate protection for a work under this title. However, in any civil action or criminal proceeding for infringement of the exclusive rights to reproduce and distribute copies of the work, the infringer has a complete defense with respect to all of the nondramatic literary material comprised in the work and any other parts of the work in which the exclusive rights to reproduce and distribute copies are owned by the same person who owns such exclusive rights in the nondramatic literary material, if the infringer proves- (1) that copies of the work have been imported into or publicly distributed in the United States in violation of this section by or with the authority of the owner of such exclusive rights; and (2) that the infringing copies were manufactured in the United States or Canada in accordance with the provisions of subsection (c); and (3) that the infringement was commenced before the effective date of registration for an authorized edition of the work, the copies of which have been manufactured in the United States or Canada in accordance with the provisions of subsection (c). (e) In any action for infringement of the exclusive rights to reproduce and distribute copies of a work containing material required by this section to be manufactured in the United States or Canada, the copyright owner shall set forth in the complaint the names of the persons or organizations who performed the processes specified by subsection (c) with respect to that material, and the places where those processes were performed. Section 602. Infringing importation of copies or phonorecords (a) Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. This subsection does not apply to- (1) importation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use; (2) importation, for the private use of the importer and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States with respect to copies or phonorecords forming part of such person's personal baggage; or (3) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity consisting of systematic reproduction or distribution, engaged in by such organization in violation of the provisions of section 108(g)(2). (b) In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were lawfully made, the United States Customs Service has no authority to prevent their importation unless the provisions of section 601 are applicable. In either case, the Secretary of the Treasury is authorized to prescribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by the Customs Service of the importation of articles that appear to be copies or phonorecords of the work. Section 603. Importation prohibitions: Enforcement and disposition of excluded articles [2] (a) The Secretary of the Treasury and the United States Postal Service shall separately or jointly make regulations for the enforcement of the provisions of this title prohibiting importation. (b) These regulations may require, as a condition for the exclusion of articles under section 602- (1) that the person seeking exclusion obtain a court order enjoining importation of the articles; or (2) that the person seeking exclusion furnish proof, of a specified nature and in accordance with prescribed procedures, that the copyright in which such person claims an interest is valid and that the importation would violate the prohibition in section 602; the person seeking exclusion may also be required to post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified. (c) Articles imported in violation of the importation prohibitions of this title are subject to seizure and forfeiture in the same manner as property imported in violation of the customs revenue laws. Forfeited articles shall be destroyed as directed by the Secretary of the Treasury or the court, as the case may be. ------------------ Chapter 6 Endnotes 1 In 1982, section 601(a) was amended in the first sentence by substituting "1986" for "1982." Pub. L. No. 97-215, 96 Stat. 178. 2 The Anticounterfeiting Consumer Protection Act of 1996 amended the last sentence of section 603(c) by deleting the semicolon and all text immediately following the words "as the case may be." Pub. L. No. 104-153, 110 Stat. 1386, 1388. ------------------------------------------------------------------------ Chapter 7 [1] Copyright Office + 701. The Copyright Office: General responsibilities and organization + 702. Copyright Office regulations + 703. Effective date of actions in Copyright Office + 704. Retention and disposition of articles deposited in Copyright Office + 705. Copyright Office records: Preparation, maintenance, public inspection, and searching + 706. Copies of Copyright Office records + 707. Copyright Office forms and publications + 708. Copyright Office fees + 709. Delay in delivery caused by disruption of postal or other services Section 701. The Copyright Office: General responsibilities and organization [2] (a) All administrative functions and duties under this title, except as otherwise specified, are the responsibility of the Register of Copyrights as director of the Copyright Office of the Library of Congress. The Register of Copyrights, together with the subordinate officers and employees of the Copyright Office, shall be appointed by the Librarian of Congress, and shall act under the Librarian's general direction and supervision. (b) In addition to the functions and duties set out elsewhere in this chapter, the Register of Copyrights shall perform the following functions: (1) Advise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters. (2) Provide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under this title, and related matters. (3) Participate in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a member of United States delegations as authorized by the appropriate Executive branch authority. (4) Conduct studies and programs regarding copyright, other matters arising under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations. (5) Perform such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in this title. (c) The Register of Copyrights shall adopt a seal to be used on and after January 1, 1978, to authenticate all certified documents issued by the Copyright Office. (d) The Register of Copyrights shall make an annual report to the Librarian of Congress of the work and accomplishments of the Copyright Office during the previous fiscal year. The annual report of the Register of Copyrights shall be published separately and as a part of the annual report of the Librarian of Congress. (e) Except as provided by section 706(b) and the regulations issued thereunder, all actions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act of June 11, 1946, as amended (c. 324, 60 Stat. 237, title 5, United States Code, Chapter 5, Subchapter II and Chapter 7). (f) The Register of Copyrights shall be compensated at the rate of pay in effect for level III of the Executive Schedule under section 5314 of title 5.3 The Librarian of Congress shall establish not more than four positions for Associate Registers of Copyrights, in accordance with the recommendations of the Register of Copyrights. The Librarian shall make appointments to such positions after consultation with the Register of Copyrights. Each Associate Register of Copyrights shall be paid at a rate not to exceed the maximum annual rate of basic pay payable for GS-18 of the General Schedule under section 5332 of title 5. Section 702. Copyright Office regulations [4] The Register of Copyrights is authorized to establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register under this title. All regulations established by the Register under this title are subject to the approval of the Librarian of Congress. Section 703. Effective date of actions in Copyright Office In any case in which time limits are prescribed under this title for the performance of an action in the Copyright Office, and in which the last day of the prescribed period falls on a Saturday, Sunday, holiday, or other nonbusiness day within the District of Columbia or the Federal Government, the action may be taken on the next succeeding business day, and is effective as of the date when the period expired. Section 704. Retention and disposition of articles deposited in Copyright Office (a) Upon their deposit in the Copyright Office under sections 407 and 408, all copies, phonorecords, and identifying material, including those deposited in connection with claims that have been refused registration, are the property of the United States Government. (b) In the case of published works, all copies, phonorecords, and identifying material deposited are available to the Library of Congress for its collections, or for exchange or transfer to any other library. In the case of unpublished works, the Library is entitled, under regulations that the Register of Copyrights shall prescribe, to select any deposits for its collections or for transfer to the National Archives of the United States or to a Federal records center, as defined in section 2901 of title 44. (c) The Register of Copyrights is authorized, for specific or general categories of works, to make a facsimile reproduction of all or any part of the material deposited under section 408, and to make such reproduction a part of the Copyright Office records of the registration, before transferring such material to the Library of Congress as provided by subsection (b), or before destroying or otherwise disposing of such material as provided by subsection (d). (d) Deposits not selected by the Library under subsection (b), or identifying portions or reproductions of them, shall be retained under the control of the Copyright Office, including retention in Government storage facilities, for the longest period considered practicable and desirable by the Register of Copyrights and the Librarian of Congress. After that period it is within the joint discretion of the Register and the Librarian to order their destruction or other disposition; but, in the case of unpublished works, no deposit shall be knowingly or intentionally destroyed or otherwise disposed of during its term of copyright unless a facsimile reproduction of the entire deposit has been made a part of the Copyright Office records as provided by subsection (c). (e) The depositor of copies, phonorecords, or identifying material under section 408, or the copyright owner of record, may request retention, under the control of the Copyright Office, of one or more of such articles for the full term of copyright in the work. The Register of Copyrights shall prescribe, by regulation, the conditions under which such requests are to be made and granted, and shall fix the fee to be charged under section 708(a)(10) if the request is granted. Section 705. Copyright Office records: Preparation, maintenance, public inspection, and searching [5] (a) The Register of Copyrights shall ensure that records of deposits, registrations, recordations, and other actions taken under this title are maintained, and that indexes of such records are prepared. (b) Such records and indexes, as well as the articles deposited in connection with completed copyright registrations and retained under the control of the Copyright Office, shall be open to public inspection. (c) Upon request and payment of the fee specified by section 708, the Copyright Office shall make a search of its public records, indexes, and deposits, and shall furnish a report of the information they disclose with respect to any particular deposits, registrations, or recorded documents. Section 706. Copies of Copyright Office records (a) Copies may be made of any public records or indexes of the Copyright Office; additional certificates of copyright registration and copies of any public records or indexes may be furnished upon request and payment of the fees specified by section 708. (b) Copies or reproductions of deposited articles retained under the control of the Copyright Office shall be authorized or furnished only under the conditions specified by the Copyright Office regulations. Section 707. Copyright Office forms and publications (a) Catalog of Copyright Entries. The Register of Copyrights shall compile and publish at periodic intervals catalogs of all copyright registrations. These catalogs shall be divided into parts in accordance with the various classes of works, and the Register has discretion to determine, on the basis of practicability and usefulness, the form and frequency of publication of each particular part. (b) Other Publications. The Register shall furnish, free of charge upon request, application forms for copyright registration and general informational material in connection with the functions of the Copyright Office. The Register also has the authority to publish compilations of information, bibliographies, and other material he or she considers to be of value to the public. (c) Distribution of Publications. All publications of the Copyright Office shall be furnished to depository libraries as specified under section 1905 of title 44, and, aside from those furnished free of charge, shall be offered for sale to the public at prices based on the cost of reproduction and distribution. Section 708. Copyright Office fees [6] (a) Fees. Fees shall be paid to the Register of Copyrights- (1) on filing each application under section 408 for registration of a copyright claim or for a supplementary registration, including the issuance of a certificate of registration if registration is made; (2) on filing each application for registration of a claim for renewal of a subsisting copyright under section 304(a), including the issuance of a certificate of registration if registration is made; (3) for the issuance of a receipt for a deposit under section 407; (4) for the recordation, as provided by section 205, of a transfer of copyright ownership or other document; (5) for the filing, under section 115(b), of a notice of intention to obtain a compulsory license; (6) for the recordation, under section 302(c), of a statement revealing the identity of an author of an anonymous or pseudonymous work, or for the recordation, under section 302(d), of a statement relating to the death of an author; (7) for the issuance, under section 706, of an additional certificate of registration; (8) for the issuance of any other certification; and (9) for the making and reporting of a search as provided by section 705, and for any related services. The Register of Copyrights is authorized to fix fees for other services, including the cost of preparing copies of Copyright Office records, whether or not such copies are certified, based on the cost of providing the service. (b) Adjustment of Fees. The Register of Copyrights may, by regulation, adjust the fees for the services specified in paragraphs (1) through (9) of subsection (a) in the following manner: [7] (1) The Register shall conduct a study of the costs incurred by the Copyright Office for the registration of claims, the recordation of documents, and the provision of services. The study shall also consider the timing of any adjustment in fees and the authority to use such fees consistent with the budget. (2) The Register may, on the basis of the study under paragraph (1), and subject to paragraph (5), adjust fees to not more than that necessary to cover the reasonable costs incurred by the Copyright Office for the services described in paragraph (1), plus a reasonable inflation adjustment to account for any estimated increase in costs. (3) Any fee established under paragraph (2) shall be rounded off to the nearest dollar, or for a fee less than $12, rounded off to the nearest 50 cents. (4) Fees established under this subsection shall be fair and equitable and give due consideration to the objectives of the copyright system. (5) If the Register determines under paragraph (2) that fees should be adjusted, the Register shall prepare a proposed fee schedule and submit the schedule with the accompanying economic analysis to the Congress. The fees proposed by the Register may be instituted after the end of 120 days after the schedule is submitted to the Congress unless, within that 120-day period, a law is enacted stating in substance that the Congress does not approve the schedule. (c) The fees prescribed by or under this section are applicable to the United States Government and any of its agencies, employees, or officers, but the Register of Copyrights has discretion to waive the requirement of this subsection in occasional or isolated cases involving relatively small amounts. (d) (1) Except as provided in paragraph (2), all fees received under this section shall be deposited by the Register of Copyrights in the Treasury of the United States and shall be credited to the appropriations for necessary expenses of the Copyright Office. Such fees that are collected shall remain available until expended. The Register may, in accordance with regulations that he or she shall prescribe, refund any sum paid by mistake or in excess of the fee required by this section. (2) In the case of fees deposited against future services, the Register of Copyrights shall request the Secretary of the Treasury to invest in interest-bearing securities in the United States Treasury any portion of the fees that, as determined by the Register, is not required to meet current deposit account demands. Funds from such portion of fees shall be invested in securities that permit funds to be available to the Copyright Office at all times if they are determined to be necessary to meet current deposit account demands. Such investments shall be in public debt securities with maturities suitable to the needs of the Copyright Office, as determined by the Register of Copyrights, and bearing interest at rates determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities. (3) The income on such investments shall be deposited in the Treasury of the United States and shall be credited to the appropriations for necessary expenses of the Copyright Office. Section 709. Delay in delivery caused by disruption of postal or other services In any case in which the Register of Copyrights determines, on the basis of such evidence as the Register may by regulation require, that a deposit, application, fee, or any other material to be delivered to the Copyright Office by a particular date, would have been received in the Copyright Office in due time except for a general disruption or suspension of postal or other transportation or communications services, the actual receipt of such material in the Copyright Office within one month after the date on which the Register determines that the disruption or suspension of such services has terminated, shall be considered timely. ------------------ Chapter 7 Endnotes 1 The Work Made for Hire and Copyright Corrections Act of 2000 amended the table of sections for chapter 7 by deleting section 710, entitled, "Reproduction for use of the blind and physically handicapped: Voluntary licensing forms and procedures." Pub. L. No. 106-379, 114 Stat. 1444, 1445. 2 The Copyright Fees and Technical Amendments Act of 1989 amended section 701 by adding subsection (e). Pub. L. No. 101-319, 104 Stat. 290. In 1998, the Digital Millennium Copyright Act amended section 701 by adding a new subsection (b), redesignating former subsections (b) through (e) as (c) through (f) respectively, and, in the new subsection (f), by substituting "III" for "IV" and "5314" for "5315." Pub. L. No. 105-304, 112 Stat. 2860, 2887. 3 Title 5 of the *United States Code* is entitled "Government Organization and Employees." 4 Copyright Office regulations are published in the *Federal Register [http://www.loc.gov/copyright/fedreg/] *and in title 37, Chapter II, of the *Code of Federal Regulations. [http://www.loc.gov/copyright/title37/] * 5 The Work Made for Hire and Copyright Corrections Act of 2000 amended section 705 by rewriting paragraph (a). Pub. L. No. 106-379, 114 Stat. 1444, 1445. 6 The Copyright Fees and Technical Amendments Act of 1989 amended section 708 by substituting a new subsection (a), by redesignating subsections (b) and (c) as subsections (c) and (d), respectively, and by adding a new subsection (b). Pub. L. No. 101-318, 104 Stat. 287. The Act states that these amendments "shall take effect 6 months after the date of the enactment of this Act" and shall apply to: (A) claims to original, supplementary, and renewal copyright received for registration, and to items received for recordation in the Copyright Office, on or after such effective date, and (B) other requests for services received on or after such effective date, or received before such effective date for services not yet rendered as of such date. With respect to prior claims, the Act states that claims to original, supplementary, and renewal copyright received for registration and items received for recordation in acceptable form in the Copyright Office before the above mentioned effective date, and requests for services which are rendered before such effective date "shall be governed by section 708 of title 17, United States Code, as in effect before such effective date." Pub. L. No. 101-318, 104 Stat. 287, 288. The Copyright Renewal Act of 1992 amended paragraph (2) of section 708(a) by striking the words "in its first term" and by substituting "$20" in lieu of "$12." Pub. L. No. 102-307, 106 Stat. 264, 266. In 1997, section 708 was amended by rewriting subsections (b) and (d) in their entirety. Pub. L. No. 105-80, 111 Stat. 1529, 1532. The Work Made for Hire and Copyright Corrections Act of 2000 amended section 708 by rewriting subsection (a), by substituting new language for the first sentence in subsection (b) and by substituting "adjustment" for "increase" in paragraph (b)(1), the word "adjust" for "increase" in paragraph (b)(2) and the word "adjusted" for "increased" in paragraph (b)(5). Pub. L. No. 106-379, 114 Stat. 1444, 1445. The Act also stated that "The fees under section 708(a) of title 17, United States Code, on the date of the enactment of this Act shall be the fees in effect under section 708(a) of such title on the day before such date of enactment." 7 The current fees may be found in the *Code of Federal Regulations, [http://www.loc.gov/copyright/title37/] * at 37 C.F.R. Sec. 201.3, [http://www.loc.gov/copyright/title37/] as authorized by Pub. L. No. 105-80, 111 Stat. 1529, 1532. In Pub. L. No. 105-80, Congress amended section 708(b) to require that the Register of Copyrights establish fees by regulation. ------------------------------------------------------------------------ Chapter 8 [1] Copyright Arbitration Royalty Panels + 801. Copyright arbitration royalty panels: Establishment and purpose + 802. Membership and proceedings of copyright arbitration royalty panels + 803. Institution and conclusion of proceedings Section 801. Copyright arbitration royalty panels: Establishment and purpose [2] (a) Establishment. The Librarian of Congress, upon the recommendation of the Register of Copyrights, is authorized to appoint and convene copyright arbitration royalty panels. (b) Purposes. Subject to the provisions of this chapter, the purposes of the copyright arbitration royalty panels shall be as follows: (1) To make determinations concerning the adjustment of reasonable copyright royalty rates as provided in sections 114, 115, 116, and 119, and to make determinations as to reasonable terms and rates of royalty payments as provided in section 118. The rates applicable under sections 114(f)(1)(B), 115, and 116 shall be calculated to achieve the following objectives: (A) To maximize the availability of creative works to the public; (B) To afford the copyright owner a fair return for his creative work and the copyright user a fair income under existing economic conditions; (C) To reflect the relative roles of the copyright owner and the copyright user in the product made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, risk, and contribution to the opening of new markets for creative expression and media for their communication; (D) To minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices. (2) To make determinations concerning the adjustment of the copyright royalty rates in section 111 solely in accordance with the following provisions: (A) The rates established by section 111(d)(1)(B) may be adjusted to reflect (i) national monetary inflation or deflation or (ii) changes in the average rates charged cable subscribers for the basic service of providing secondary transmissions to maintain the real constant dollar level of the royalty fee per subscriber which existed as of the date of enactment of this Act: *Provided*, That if the average rates charged cable system subscribers for the basic service of providing secondary transmissions are changed so that the average rates exceed national monetary inflation, no change in the rates established by section 111(d) (1)(B) shall be permitted: *And provided further, *That no increase in the royalty fee shall be permitted based on any reduction in the average number of distant signal equivalents per subscriber. The copyright arbitration royalty panels may consider all factors relating to the maintenance of such level of payments including, as an extenuating factor, whether the industry has been restrained by subscriber rate regulating authorities from increasing the rates for the basic service of providing secondary transmissions. (B) In the event that the rules and regulations of the Federal Communications Commission are amended at any time after April 15, 1976, to permit the carriage by cable systems of additional television broadcast signals beyond the local service area of the primary transmitters of such signals, the royalty rates established by section 111(d)(1)(B) may be adjusted to insure that the rates for the additional distant signal equivalents resulting from such carriage are reasonable in the light of the changes effected by the amendment to such rules and regulations. In determining the reasonableness of rates proposed following an amendment of Federal Communications Commission rules and regulations, the copyright arbitration royalty panels shall consider, among other factors, the economic impact on copyright owners and users: *Provided*, That no adjustment in royalty rates shall be made under this subclause with respect to any distant signal equivalent or fraction thereof represented by (i) carriage of any signal permitted under the rules and regulations of the Federal Communications Commission in effect on April 15, 1976, or the carriage of a signal of the same type (that is, independent, network, or noncommercial educational) substituted for such permitted signal, or (ii) a television broadcast signal first carried after April 15, 1976, pursuant to an individual waiver of the rules and regulations of the Federal Communications Commission, as such rules and regulations were in effect on April 15,1976. (C) In the event of any change in the rules and regulations of the Federal Communications Commission with respect to syndicated and sports program exclusivity after April 15, 1976, the rates established by section 111(d)(1)(B) may be adjusted to assure that such rates are reasonable in light of the changes to such rules and regulations, but any such adjustment shall apply only to the affected television broadcast signals carried on those systems affected by the change. (D) The gross receipts limitations established by section 111(d)(1)(C) and (D) shall be adjusted to reflect national monetary inflation or deflation or changes in the average rates charged cable system subscribers for the basic service of providing secondary transmissions to maintain the real constant dollar value of the exemption provided by such section; and the royalty rate specified therein shall not be subject to adjustment. (3) To distribute royalty fees deposited with the Register of Copyrights under sections 111, 116, 119(b), and 1003, and to determine, in cases where controversy exists, the distribution of such fees. (c) Rulings. The Librarian of Congress, upon the recommendation of the Register of Copyrights, may, before a copyright arbitration royalty panel is convened, make any necessary procedural or evidentiary rulings that would apply to the proceedings conducted by such panel, including- (1) authorizing the distribution of those royalty fees collected under sections 111, 119, and 1005 that the Librarian has found are not subject to controversy; and (2) accepting or rejecting royalty claims filed under sections 111, 119, and 1007 on the basis of timeliness or the failure to establish the basis for a claim. (d) Support and Reimbursement of Arbitration Panels. The Librarian of Congress, upon the recommendation of the Register of Copyrights, shall provide the copyright arbitration royalty panels with the necessary administrative services related to proceedings under this chapter, and shall reimburse the arbitrators presiding in distribution proceedings at such intervals and in such manner as the Librarian shall provide by regulation. Each such arbitrator is an independent contractor acting on behalf of the United States, and shall be hired pursuant to a signed agreement between the Library of Congress and the arbitrator. Payments to the arbitrators shall be considered reasonable costs incurred by the Library of Congress and the Copyright Office for purposes of section 802(h)(1). Section 802. Membership and proceedings of copyright arbitration royalty panels [3] (a) Composition of Copyright Arbitration Royalty Panels. A copyright arbitration royalty panel shall consist of 3 arbitrators selected by the Librarian of Congress pursuant to subsection (b). (b) Selection of Arbitration Panel. Not later than 10 days after publication of a notice in the Federal Register initiating an arbitration proceeding under section 803, and in accordance with procedures specified by the Register of Copyrights, the Librarian of Congress shall, upon the recommendation of the Register of Copyrights, select 2 arbitrators from lists provided by professional arbitration associations. Qualifications of the arbitrators shall include experience in conducting arbitration proceedings and facilitating the resolution and settlement of disputes, and any qualifications which the Librarian of Congress, upon the recommendation of the Register of Copyrights, shall adopt by regulation. The 2 arbitrators so selected shall, within 10 days after their selection, choose a third arbitrator from the same lists, who shall serve as the chairperson of the arbitrators. If such 2 arbitrators fail to agree upon the selection of a third arbitrator, the Librarian of Congress shall promptly select the third arbitrator. The Librarian of Congress, upon the recommendation of the Register of Copyrights, shall adopt regulations regarding standards of conduct which shall govern arbitrators and the proceedings under this chapter. [4] (c) Arbitration Proceedings. Copyright arbitration royalty panels shall conduct arbitration proceedings, subject to subchapter II of chapter 5 of title 5, for the purpose of making their determinations in carrying out the purposes set forth in section 801. The arbitration panels shall act on the basis of a fully documented written record, prior decisions of the Copyright Royalty Tribunal, prior copyright arbitration panel determinations, and rulings by the Librarian of Congress under section 801(c). Any copyright owner who claims to be entitled to royalties under section 111, 112, 114, 116, or 119, any transmitting organization entitled to a statutory license under section 112(f), any person entitled to a statutory license under section 114(d), any person entitled to a compulsory license under section 115, or any interested copyright party who claims to be entitled to royalties under section 1006, may submit relevant information and proposals to the arbitration panels in proceedings applicable to such copyright owner or interested copyright party, and any other person participating in arbitration proceedings may submit such relevant information and proposals to the arbitration panel conducting the proceedings. In ratemaking proceedings, the parties to the proceedings shall bear the entire cost thereof in such manner and proportion as the arbitration panels shall direct. In distribution proceedings, the parties shall bear the cost in direct proportion to their share of the distribution. (d) Procedures. Effective on the date of the enactment of the Copyright Royalty Tribunal Reform Act of 1993, the Librarian of Congress shall adopt the rules and regulations set forth in chapter 3 of title 37 of the Code of Federal Regulations to govern proceedings under this chapter. Such rules and regulations shall remain in effect unless and until the Librarian, upon the recommendation of the Register of Copyrights, adopts supplemental or superseding regulations under subchapter II of chapter 5 of title 5. (e) Report to the Librarian of Congress. Not later than 180 days after publication of the notice in the Federal Register initiating an arbitration proceeding, the copyright arbitration royalty panel conducting the proceeding shall report to the Librarian of Congress its determination concerning the royalty fee or distribution of royalty fees, as the case may be. Such report shall be accompanied by the written record, and shall set forth the facts that the arbitration panel found relevant to its determination. (f) Action by Librarian of Congress. Within 90 days after receiving the report of a copyright arbitration royalty panel under subsection (e), the Librarian of Congress, upon the recommendation of the Register of Copyrights, shall adopt or reject the determination of the arbitration panel. The Librarian shall adopt the determination of the arbitration panel unless the Librarian finds that the determination is arbitrary or contrary to the applicable provisions of this title. If the Librarian rejects the determination of the arbitration panel, the Librarian shall, before the end of an additional 30-day period, and after full examination of the record created in the arbitration proceeding, issue an order setting the royalty fee or distribution of fees, as the case may be. The Librarian shall cause to be published in the Federal Register the determination of the arbitration panel, and the decision of the Librarian (including an order issued under the preceding sentence). The Librarian shall also publicize such determination and decision in such other manner as the Librarian considers appropriate. The Librarian shall also make the report of the arbitration panel and the accompanying record available for public inspection and copying. (g) Judicial Review. Any decision of the Librarian of Congress under subsection (f) with respect to a determination of an arbitration panel may be appealed, by any aggrieved party who would be bound by the determination, to the United States Court of Appeals for the District of Columbia Circuit, within 30 days after the publication of the decision in the Federal Register. If no appeal is brought within such 30-day period, the decision of the Librarian is final, and the royalty fee or determination with respect to the distribution of fees, as the case may be, shall take effect as set forth in the decision. When this title provides that the royalty rates or terms that were previously in effect are to expire on a specified date, any adjustment by the Librarian of those rates or terms shall be effective as of the day following the date of expiration of the rates or terms that were previously in effect, even if the Librarian's decision is rendered on a later date. The pendency of an appeal under this paragraph shall not relieve persons obligated to make royalty payments under sections 111, 112, 114, 115, 116, 118, 119, or 1003 who would be affected by the determination on appeal to deposit the statement of account and royalty fees specified in those sections. The court shall have jurisdiction to modify or vacate a decision of the Librarian only if it finds, on the basis of the record before the Librarian, that the Librarian acted in an arbitrary manner. If the court modifies the decision of the Librarian, the court shall have jurisdiction to enter its own determination with respect to the amount or distribution of royalty fees and costs, to order the repayment of any excess fees, and to order the payment of any underpaid fees, and the interest pertaining respectively thereto, in accordance with its final judgment. The court may further vacate the decision of the arbitration panel and remand the case to the Librarian for arbitration proceedings in accordance with subsection (c). (h) Administrative Matters. (1) Deduction of costs of library of congress and copyright office from royalty fees. The Librarian of Congress and the Register of Copyrights may, to the extent not otherwise provided under this title, deduct from royalty fees deposited or collected under this title the reasonable costs incurred by the Library of Congress and the Copyright Office under this chapter. Such deduction may be made before the fees are distributed to any copyright claimants. In addition, all funds made available by an appropriations Act as offsetting collections and available for deductions under this subsection shall remain available until expended. In ratemaking proceedings, the reasonable costs of the Librarian of Congress and the Copyright Office shall be borne by the parties to the proceedings as directed by the arbitration panels under subsection (c). (2) Positions required for administration of compulsory licensing. Section 307 of the Legislative Branch Appropriations Act, 1994, shall not apply to employee positions in the Library of Congress that are required to be filled in order to carry out section 111, 112, 114, 115, 116, 118, or 119 or chapter 10. Section 803. Institution and conclusion of proceedings [5] (a)(1) With respect to proceedings under section 801(b)(1) concerning the adjustment of royalty rates as provided in sections 112, 114, 115, and 116, and with respect to proceedings under subparagraphs (A) and (D) of section 801(b)(2), during the calendar years specified in the schedule set forth in paragraphs (2), (3), (4), and (5), any owner or user of a copyrighted work whose royalty rates are specified by this title, established by the Copyright Royalty Tribunal before the date of the enactment of the Copyright Royalty Tribunal Reform Act of 1993, or established by a copyright arbitration royalty panel after such date of enactment, may file a petition with the Librarian of Congress declaring that the petitioner requests an adjustment of the rate. The Librarian of Congress shall, upon the recommendation of the Register of Copyrights, make a determination as to whether the petitioner has such a significant interest in the royalty rate in which an adjustment is requested. If the Librarian determines that the petitioner has such a significant interest, the Librarian shall cause notice of this determination, with the reasons therefor, to be published in the Federal Register, together with the notice of commencement of proceedings under this chapter. (2) In proceedings under section 801(b)(2)(A) and (D), a petition described in paragraph (1) may be filed during 1995 and in each subsequent fifth calendar year. (3) In proceedings under section 801(b)(1) concerning the adjustment of royalty rates as provided in section 115, a petition described in paragraph (1) may be filed in 1997 and in each subsequent tenth calendar year or as prescribed in section 115(c)(3)(D). (4)(A) In proceedings under section 801(b)(1) concerning the adjustment of royalty rates as provided in section 116, a petition described in paragraph (1) may be filed at any time within 1 year after negotiated licenses authorized by section 116 are terminated or expire and are not replaced by subsequent agreements. (B) If a negotiated license authorized by section 116 is terminated or expires and is not replaced by another such license agreement which provides permission to use a quantity of musical works not substantially smaller than the quantity of such works performed on coin-operated phonorecord players during the 1-year period ending March 1, 1989, the Librarian of Congress shall, upon petition filed under paragraph (1) within 1 year after such termination or expiration, convene a copyright arbitration royalty panel. The arbitration panel shall promptly establish an interim royalty rate or rates for the public performance by means of a coin-operated phonorecord player of non-dramatic musical works embodied in phonorecords which had been subject to the terminated or expired negotiated license agreement. Such rate or rates shall be the same as the last such rate or rates and shall remain in force until the conclusion of proceedings by the arbitration panel, in accordance with section 802, to adjust the royalty rates applicable to such works, or until superseded by a new negotiated license agreement, as provided in section 116(b). (5) With respect to proceedings under section 801(b)(1) concerning the determination of reasonable terms and rates of royalty payments as provided in section 112 or 114, the Librarian of Congress shall proceed when and as provided by those sections. (b) With respect to proceedings under subparagraph (B) or (C) of section 801(b)(2), following an event described in either of those subsections, any owner or user of a copyrighted work whose royalty rates are specified by section 111, or by a rate established by the Copyright Royalty Tribunal or the Librarian of Congress, may, within twelve months, file a petition with the Librarian declaring that the petitioner requests an adjustment of the rate. In this event the Librarian shall proceed as in subsection (a) of this section. Any change in royalty rates made by the Copyright Royalty Tribunal or the Librarian of Congress pursuant to this subsection may be reconsidered in 1980, 1985, and each fifth calendar year thereafter, in accordance with the provisions in section 801(b)(2)(B) or (C), as the case may be. (c) With respect to proceedings under section 801(b)(1), concerning the determination of reasonable terms and rates of royalty payments as provided in section 118, the Librarian of Congress shall proceed when and as provided by that section. (d) With respect to proceedings under section 801(b)(3) or (4), concerning the distribution of royalty fees in certain circumstances under section 111, 116, 119, or 1007, the Librarian of Congress shall, upon a determination that a controversy exists concerning such distribution, cause to be published in the Federal Register notice of commencement of proceedings under this chapter. ------------------ Chapter 8 Endnotes 1 The Copyright Royalty Tribunal Reform Act of 1993 amended chapter 8 by substituting a new chapter title heading and by repealing sections 803 and 805 through 810. Pub. L. No. 103-198, 107 Stat. 2304, 2308. 2 In 1986, section 801(b) was amended in paragraph (2)(A) by inserting "111(d)(1)(B)" in lieu of "111(d)(2)(B)," wherever it appeared. Pub. L. No. 99-397, 100 Stat. 848. The Satellite Home Viewer Act of 1988 amended section 801(b)(3) by substituting ", 116 and 119(b)" in lieu of "and 116." Pub. L. No. 100-667, 102 Stat. 3935, 3949, 3958. The Copyright Royalty Tribunal Reform Act of 1993 amended section 801 by giving it a new heading, by amending subsection (a) in its entirety, by making conforming amendments throughout subsection (b), by amending the first sentence of subsection (c) and by adding subsection (d). Pub. L. No. 103-198, 107 Stat. 2304. In 1997, section 801 was amended by inserting "119" in the first sentence of subsection (b)(1), by adding paragraphs (1) and (2) of subsection (c) and by amending subsection (d) in its entirety. Pub. L. No. 105-80, 111 Stat. 1529, 1533. In 1998, the Digital Millennium Copyright Act amended the first sentence of section 801(b) by inserting "114(f)(1)(B)" in lieu of "114." Pub. L. No. 105-304, 112 Stat. 2860, 2902. 3 The Copyright Royalty Tribunal Reform Act of 1993 amended section 802 in its entirety. Pub. L. No. 103-198, 107 Stat. 2304, 2305. In 1997, section 802(h)(1) was amended in its entirety. Pub. L. No. 105-80, 111 Stat. 1529. In 1998, the Digital Millennium Copyright Act amended section 802 as follows: 1) in subsection (c), by inserting in the third sentence "any transmitting organization entitled to a statutory license under section 112(f)" after "section 111, 112, 114, 116, and 119"; 2) in subsection (f), by inserting "90" in lieu of "60" in the first sentence and "an additional 30-day period" in lieu of "that additional 60 day period" in the third sentence; 3) in subsection (g), by adding the third sentence, which begins "When this title provides that the royalty rates" and by inserting "112" after "111"; and 4) by inserting "112" after "111" in subsection (h)(2). Pub. L. No. 105-304, 112 Stat. 2860, 2902. 4 See title 37, Chapter II, of the *Code of Federal Regulations.* 5 The Copyright Royalty Tribunal Reform Act of 1993 redesignated section 804 as section 803 and amended the newly designated section 803 in its entirety. Pub. L. No. 103-198, 107 Stat. 2304, 2307. In 1995, the Digital Performance Right in Sound Recordings Act amended section 803(a) by adding paragraph (5) and by making conforming amendments throughout chapter 8. Pub. L. No. 104-39, 109 Stat. 336, 349. In 1998, the Digital Millennium Copyright Act amended section 803(a) by inserting "112" before "114" in paragraphs (1) and (5) and by substituting "those sections" in lieu of "that section" in paragraph (5). Pub. L. No. 105-304, 112 Stat. 2860, 2902. ------------------------------------------------------------------------ Chapter 9 [1] Protection of Semiconductor Chip Products + 901. Definitions + 902. Subject matter of protection + 903. Ownership, transfer, licensure, and recordation [2] + 904. Duration of protection + 905. Exclusive rights in mask works + 906. Limitation on exclusive rights: reverse engineering; first sale + 907. Limitation on exclusive rights: innocent infringement + 908. Registration of claims of protection + 909. Mask work notice + 910. Enforcement of exclusive rights + 911. Civil actions + 912. Relation to other laws + 913. Transitional provisions + 914. International transitional provisions Section 901. Definitions (a) As used in this chapter (1) a "semiconductor chip product" is the final or intermediate form of any product- (A) having two or more layers of metallic, insulating, or semiconductor material, deposited or otherwise placed on, or etched away or otherwise removed from, a piece of semiconductor material in accordance with a predetermined pattern; and (B) intended to perform electronic circuitry functions; (2) a "mask work" is a series of related images, however fixed or encoded- (A) having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product; and (B) in which series the relation of the images to one another is that each image has the pattern of the surface of one form of the semiconductor chip product; (3) a mask work is "fixed" in a semiconductor chip product when its embodiment in the product is sufficiently permanent or stable to permit the mask work to be perceived or reproduced from the product for a period of more than transitory duration; (4) to "distribute" means to sell, or to lease, bail, or otherwise transfer, or to offer to sell, lease, bail, or otherwise transfer; (5) to "commercially exploit" a mask work is to distribute to the public for commercial purposes a semiconductor chip product embodying the mask work; except that such term includes an offer to sell or transfer a semiconductor chip product only when the offer is in writing and occurs after the mask work is fixed in the semiconductor chip product; (6) the "owner" of a mask work is the person who created the mask work, the legal representative of that person if that person is deceased or under a legal incapacity, or a party to whom all the rights under this chapter of such person or representative are transferred in accordance with section 903(b); except that, in the case of a work made within the scope of a person's employment, the owner is the employer for whom the person created the mask work or a party to whom all the rights under this chapter of the employer are transferred in accordance with section 903(b); (7) an "innocent purchaser" is a person who purchases a semiconductor chip product in good faith and without having notice of protection with respect to the semiconductor chip product; (8) having "notice of protection" means having actual knowledge that, or reasonable grounds to believe that, a mask work is protected under this chapter; and (9) an "infringing semiconductor chip product" is a semiconductor chip product which is made, imported, or distributed in violation of the exclusive rights of the owner of a mask work under this chapter. (b) For purposes of this chapter, the distribution or importation of a product incorporating a semiconductor chip product as a part thereof is a distribution or importation of that semiconductor chip product. Section 902. Subject matter of protection [3] (a)(1) Subject to the provisions of subsection (b), a mask work fixed in a semiconductor chip product, by or under the authority of the owner of the mask work, is eligible for protection under this chapter if- (A) on the date on which the mask work is registered under section 908, or is first commercially exploited anywhere in the world, whichever occurs first, the owner of the mask work is (i) a national or domiciliary of the United States, (ii) a national, domiciliary, or sovereign authority of a foreign nation that is a party to a treaty affording protection to mask works to which the United States is also a party, or (iii) a stateless person, wherever that person may be domiciled; (B) the mask work is first commercially exploited in the United States; or (C) the mask work comes within the scope of a Presidential proclamation issued under paragraph (2). (2) Whenever the President finds that a foreign nation extends, to mask works of owners who are nationals or domiciliaries of the United States protection (A) on substantially the same basis as that on which the foreign nation extends protection to mask works of its own nationals and domiciliaries and mask works first commercially exploited in that nation, or (B) on substantially the same basis as provided in this chapter, the President may by proclamation extend protection under this chapter to mask works (i) of owners who are, on the date on which the mask works are registered under section 908, or the date on which the mask works are first commercially exploited anywhere in the world, whichever occurs first, nationals, domiciliaries, or sovereign authorities of that nation, or (ii) which are first commercially exploited in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection extended under any such proclamation. (b) Protection under this chapter shall not be available for a mask work that- (1) is not original; or (2) consists of designs that are staple, commonplace, or familiar in the semiconductor industry, or variations of such designs, combined in a way that, considered as a whole, is not original. (c) In no case does protection under this chapter for a mask work extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Section 903. Ownership, transfer, licensing, and recordation (a) The exclusive rights in a mask work subject to protection under this chapter belong to the owner of the mask work. (b) The owner of the exclusive rights in a mask work may transfer all of those rights, or license all or less than all of those rights, by any written instrument signed by such owner or a duly authorized agent of the owner. Such rights may be transferred or licensed by operation of law, may be bequeathed by will, and may pass as personal property by the applicable laws of intestate succession. (c)(1) Any document pertaining to a mask work may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. The Register of Copyrights shall, upon receipt of the document and the fee specified pursuant to section 908(d), record the document and return it with a certificate of recordation. The recordation of any transfer or license under this paragraph gives all persons constructive notice of the facts stated in the recorded document concerning the transfer or license. (2) In any case in which conflicting transfers of the exclusive rights in a mask work are made, the transfer first executed shall be void as against a subsequent transfer which is made for a valuable consideration and without notice of the first transfer, unless the first transfer is recorded in accordance with paragraph (1) within three months after the date on which it is executed, but in no case later than the day before the date of such subsequent transfer. (d) Mask works prepared by an officer or employee of the United States Government as part of that person's official duties are not protected under this chapter, but the United States Government is not precluded from receiving and holding exclusive rights in mask works transferred to the Government under subsection (b). Section 904. Duration of protection (a) The protection provided for a mask work under this chapter shall commence on the date on which the mask work is registered under section 908, or the date on which the mask work is first commercially exploited anywhere in the world, whichever occurs first. (b) Subject to subsection (c) and the provisions of this chapter, the protection provided under this chapter to a mask work shall end ten years after the date on which such protection commences under subsection (a). (c) All terms of protection provided in this section shall run to the end of the calendar year in which they would otherwise expire. Section 905. Exclusive rights in mask works The owner of a mask work provided protection under this chapter has the exclusive rights to do and to authorize any of the following: (1) to reproduce the mask work by optical, electronic, or any other means; (2) to import or distribute a semiconductor chip product in which the mask work is embodied; and (3) to induce or knowingly to cause another person to do any of the acts described in paragraphs (1) and (2). Section 906. Limitation on exclusive rights: reverse engineering; first sale (a) Notwithstanding the provisions of section 905, it is not an infringement of the exclusive rights of the owner of a mask work for- (1) a person to reproduce the mask work solely for the purpose of teaching, analyzing, or evaluating the concepts or techniques embodied in the mask work or the circuitry, logic flow, or organization of components used in the mask work; or (2) a person who performs the analysis or evaluation described in paragraph (1) to incorporate the results of such conduct in an original mask work which is made to be distributed. (b) Notwithstanding the provisions of section 905(2), the owner of a particular semiconductor chip product made by the owner of the mask work, or by any person authorized by the owner of the mask work, may import, distribute, or otherwise dispose of or use, but not reproduce, that particular semiconductor chip product without the authority of the owner of the mask work. Section 907. Limitation on exclusive rights: innocent infringement (a) Notwithstanding any other provision of this chapter, an innocent purchaser of an infringing semiconductor chip product- (1) shall incur no liability under this chapter with respect to the importation or distribution of units of the infringing semiconductor chip product that occurs before the innocent purchaser has notice of protection with respect to the mask work embodied in the semiconductor chip product; and (2) shall be liable only for a reasonable royalty on each unit of the infringing semiconductor chip product that the innocent purchaser imports or distributes after having notice of protection with respect to the mask work embodied in the semiconductor chip product. (b) The amount of the royalty referred to in subsection (a)(2) shall be determined by the court in a civil action for infringement unless the parties resolve the issue by voluntary negotiation, mediation, or binding arbitration. (c) The immunity of an innocent purchaser from liability referred to in subsection (a)(1) and the limitation of remedies with respect to an innocent purchaser referred to in subsection (a)(2) shall extend to any person who directly or indirectly purchases an infringing semiconductor chip product from an innocent purchaser. (d) The provisions of subsections (a), (b), and (c) apply only with respect to those units of an infringing semiconductor chip product that an innocent purchaser purchased before having notice of protection with respect to the mask work embodied in the semiconductor chip product. Section 908. Registration of claims of protection (a) The owner of a mask work may apply to the Register of Copyrights for registration of a claim of protection in a mask work. Protection of a mask work under this chapter shall terminate if application for registration of a claim of protection in the mask work is not made as provided in this chapter within two years after the date on which the mask work is first commercially exploited anywhere in the world. (b) The Register of Copyrights shall be responsible for all administrative functions and duties under this chapter. Except for section 708, the provisions of chapter 7 of this title relating to the general responsibilities, organization, regulatory authority, actions, records, and publications of the Copyright Office shall apply to this chapter, except that the Register of Copyrights may make such changes as may be necessary in applying those provisions to this chapter. (c) The application for registration of a mask work shall be made on a form prescribed by the Register of Copyrights. Such form may require any information regarded by the Register as bearing upon the preparation or identification of the mask work, the existence or duration of protection of the mask work under this chapter, or ownership of the mask work. The application shall be accompanied by the fee set pursuant to subsection (d) and the identifying material specified pursuant to such subsection. (d) The Register of Copyrights shall by regulation set reasonable fees for the filing of applications to register claims of protection in mask works under this chapter, and for other services relating to the administration of this chapter or the rights under this chapter, taking into consideration the cost of providing those services, the benefits of a public record, and statutory fee schedules under this title. The Register shall also specify the identifying material to be deposited in connection with the claim for registration. (e) If the Register of Copyrights, after examining an application for registration, determines, in accordance with the provisions of this chapter, that the application relates to a mask work which is entitled to protection under this chapter, then the Register shall register the claim of protection and issue to the applicant a certificate of registration of the claim of protection under the seal of the Copyright Office. The effective date of registration of a claim of protection shall be the date on which an application, deposit of identifying material, and fee, which are determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration of the claim, have all been received in the Copyright Office. (f) In any action for infringement under this chapter, the certificate of registration of a mask work shall constitute prima facie evidence (1) of the facts stated in the certificate, and (2) that the applicant issued the certificate has met the requirements of this chapter, and the regulations issued under this chapter, with respect to the registration of claims. (g) Any applicant for registration under this section who is dissatisfied with the refusal of the Register of Copyrights to issue a certificate of registration under this section may seek judicial review of that refusal by bringing an action for such review in an appropriate United States district court not later than sixty days after the refusal. The provisions of chapter 7 of title 5 shall apply to such judicial review. The failure of the Register of Copyrights to issue a certificate of registration within four months after an application for registration is filed shall be deemed to be a refusal to issue a certificate of registration for purposes of this subsection and section 910(b)(2), except that, upon a showing of good cause, the district court may shorten such four-month period. Section 909. Mask work notice [4] (a) The owner of a mask work provided protection under this chapter may affix notice to the mask work, and to masks and semiconductor chip products embodying the mask work, in such manner and location as to give reasonable notice of such protection. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of notice for purposes of this section, but these specifications shall not be considered exhaustive. The affixation of such notice is not a condition of protection under this chapter, but shall constitute prima facie evidence of notice of protection. (b) The notice referred to in subsection (a) shall consist of- (1) the words "mask work", the symbol *M*, or the symbol [M in a circle] (the letter M in a circle); and (2) the name of the owner or owners of the mask work or an abbreviation by which the name is recognized or is generally known. Section 910. Enforcement of exclusive rights [5] (a) Except as otherwise provided in this chapter, any person who violates any of the exclusive rights of the owner of a mask work under this chapter, by conduct in or affecting commerce, shall be liable as an infringer of such rights. As used in this subsection, the term "any person" includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity. (b)(1) The owner of a mask work protected under this chapter, or the exclusive licensee of all rights under this chapter with respect to the mask work, shall, after a certificate of registration of a claim of protection in that mask work has been issued under section 908, be entitled to institute a civil action for any infringement with respect to the mask work which is committed after the commencement of protection of the mask work under section 904(a). (2) In any case in which an application for registration of a claim of protection in a mask work and the required deposit of identifying material and fee have been received in the Copyright Office in proper form and registration of the mask work has been refused, the applicant is entitled to institute a civil action for infringement under this chapter with respect to the mask work if notice of the action, together with a copy of the complaint, is served on the Register of Copyrights, in accordance with the Federal Rules of Civil Procedure. The Register may, at his or her option, become a party to the action with respect to the issue of whether the claim of protection is eligible for registration by entering an appearance within sixty days after such service, but the failure of the Register to become a party to the action shall not deprive the court of jurisdiction to determine that issue. (c)(1) The Secretary of the Treasury and the United States Postal Service shall separately or jointly issue regulations for the enforcement of the rights set forth in section 905 with respect to importation. These regulations may require, as a condition for the exclusion of articles from the United States, that the person seeking exclusion take any one or more of the following actions: (A) Obtain a court order enjoining, or an order of the International Trade Commission under section 337 of the Tariff Act of 1930 excluding, importation of the articles. (B) Furnish proof that the mask work involved is protected under this chapter and that the importation of the articles would infringe the rights in the mask work under this chapter. (C) Post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified. (2) Articles imported in violation of the rights set forth in section 905 are subject to seizure and forfeiture in the same manner as property imported in violation of the customs laws. Any such forfeited articles shall be destroyed as directed by the Secretary of the Treasury or the court, as the case may be, except that the articles may be returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury that the importer had no reasonable grounds for believing that his or her acts constituted a violation of the law. Section 911. Civil actions [6] (a) Any court having jurisdiction of a civil action arising under this chapter may grant temporary restraining orders, preliminary injunctions, and permanent injunctions on such terms as the court may deem reasonable to prevent or restrain infringement of the exclusive rights in a mask work under this chapter. (b) Upon finding an infringer liable, to a person entitled under section 910(b)(1) to institute a civil action, for an infringement of any exclusive right under this chapter, the court shall award such person actual damages suffered by the person as a result of the infringement. The court shall also award such person the infringer's profits that are attributable to the infringement and are not taken into account in computing the award of actual damages. In establishing the infringer's profits, such person is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the mask work. (c) At any time before final judgment is rendered, a person entitled to institute a civil action for infringement may elect, instead of actual damages and profits as provided by subsection (b), an award of statutory damages for all infringements involved in the action, with respect to any one mask work for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in an amount not more than $250,000 as the court considers just. (d) An action for infringement under this chapter shall be barred unless the action is commenced within three years after the claim accrues. (e)(1) At any time while an action for infringement of the exclusive rights in a mask work under this chapter is pending, the court may order the impounding, on such terms as it may deem reasonable, of all semiconductor chip products, and any drawings, tapes, masks, or other products by means of which such products may be reproduced, that are claimed to have been made, imported, or used in violation of those exclusive rights. Insofar as practicable, applications for orders under this paragraph shall be heard and determined in the same manner as an application for a temporary restraining order or preliminary injunction. (2) As part of a final judgment or decree, the court may order the destruction or other disposition of any infringing semiconductor chip products, and any masks, tapes, or other articles by means of which such products may be reproduced. (f) In any civil action arising under this chapter, the court in its discretion may allow the recovery of full costs, including reasonable attorneys' fees, to the prevailing party. (g)(1) Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of the owner of a mask work under this chapter, or for any other violation under this chapter. (2) In a suit described in paragraph (1) for a violation described in that paragraph, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State, instrumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include actual damages and profits under subsection (b), statutory damages under subsection (c), impounding and disposition of infringing articles under subsection (e), and costs and attorney's fees under subsection (f). Section 912. Relation to other laws [7] (a) Nothing in this chapter shall affect any right or remedy held by any person under chapters 1 through 8 or 10 of this title, or under title 35. (b) Except as provided in section 908(b) of this title, references to "this title" or "title 17" in chapters 1 through 8 or 10 of this title shall be deemed not to apply to this chapter. (c) The provisions of this chapter shall preempt the laws of any State to the extent those laws provide any rights or remedies with respect to a mask work which are equivalent to those rights or remedies provided by this chapter, except that such preemption shall be effective only with respect to actions filed on or after January 1, 1986. (d) Notwithstanding subsection (c), nothing in this chapter shall detract from any rights of a mask work owner, whether under Federal law (exclusive of this chapter) or under the common law or the statutes of a State, heretofore or hereafter declared or enacted, with respect to any mask work first commercially exploited before July 1, 1983. Section 913. Transitional provisions (a) No application for registration under section 908 may be filed, and no civil action under section 910 or other enforcement proceeding under this chapter may be instituted, until sixty days after the date of the enactment of this chapter. (b) No monetary relief under section 911 may be granted with respect to any conduct that occurred before the date of the enactment of this chapter, except as provided in subsection (d). (c) Subject to subsection (a), the provisions of this chapter apply to all mask works that are first commercially exploited or are registered under this chapter, or both, on or after the date of the enactment of this chapter. (d)(1) Subject to subsection (a), protection is available under this chapter to any mask work that was first commercially exploited on or after July 1, 1983, and before the date of the enactment of this chapter, if a claim of protection in the mask work is registered in the Copyright Office before July 1, 1985, under section 908. (2) In the case of any mask work described in paragraph (1) that is provided protection under this chapter, infringing semiconductor chip product units manufactured before the date of the enactment of this chapter may, without liability under sections 910 and 911, be imported into or distributed in the United States, or both, until two years after the date of registration of the mask work under section 908, but only if the importer or distributor, as the case may be, first pays or offers to pay the reasonable royalty referred to in section 907(a)(2) to the mask work owner, on all such units imported or distributed, or both, after the date of the enactment of this chapter. (3) In the event that a person imports or distributes infringing semiconductor chip product units described in paragraph (2) of this subsection without first paying or offering to pay the reasonable royalty specified in such paragraph, or if the person refuses or fails to make such payment, the mask work owner shall be entitled to the relief provided in sections 910 and 911. Section 914. International transitional provisions [8] (a) Notwithstanding the conditions set forth in subparagraphs (A) and (C) of section 902(a)(1) with respect to the availability of protection under this chapter to nationals, domiciliaries, and sovereign authorities of a foreign nation, the Secretary of Commerce may, upon the petition of any person, or upon the Secretary's own motion, issue an order extending protection under this chapter to such foreign nationals, domiciliaries, and sovereign authorities if the Secretary finds- (1) that the foreign nation is making good faith efforts and reasonable progress toward- (A) entering into a treaty described in section 902(a)(1)(A); or (B) enacting or implementing legislation that would be in compliance with subparagraph (A) or (B) of section 902(a)(2); and (2) that the nationals, domiciliaries, and sovereign authorities of the foreign nation, and persons controlled by them, are not engaged in the misappropriation, or unauthorized distribution or commercial exploitation, of mask works; and (3) that issuing the order would promote the purposes of this chapter and international comity with respect to the protection of mask works. (b) While an order under subsection (a) is in effect with respect to a foreign nation, no application for registration of a claim for protection in a mask work under this chapter may be denied solely because the owner of the mask work is a national, domiciliary, or sovereign authority of that foreign nation, or solely because the mask work was first commercially exploited in that foreign nation. (c) Any order issued by the Secretary of Commerce under subsection (a) shall be effective for such a period as the Secretary designates in the order, except that no such order may be effective after that date on which the authority of the Secretary of Commerce terminates under subsection (e). The effective date of any such order shall also be designated in the order. In the case of an order issued upon the petition of a person, such effective date may be no earlier than the date on which the Secretary receives such petition. (d)(1) Any order issued under this section shall terminate if- (A) the Secretary of Commerce finds that any of the conditions set forth in paragraphs (1), (2), and (3) of subsection (a) no longer exist; or (B) mask works of nationals, domiciliaries, and sovereign authorities of that foreign nation or mask works first commercially exploited in that foreign nation become eligible for protection under subparagraph (A) or (C) of section 902(a)(1). (2) Upon the termination or expiration of an order issued under this section, registrations of claims of protection in mask works made pursuant to that order shall remain valid for the period specified in section 904. (e) The authority of the Secretary of Commerce under this section shall commence on the date of the enactment of this chapter, and shall terminate on July 1, 1995. (f) (1) The Secretary of Commerce shall promptly notify the Register of Copyrights and the Committees on the Judiciary of the Senate and the House of Representatives of the issuance or termination of any order under this section, together with a statement of the reasons for such action. The Secretary shall also publish such notification and statement of reasons in the Federal Register. (2) Two years after the date of the enactment of this chapter, the Secretary of Commerce, in consultation with the Register of Copyrights, shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report on the actions taken under this section and on the current status of international recognition of mask work protection. The report shall include such recommendation for modifications of the protection accorded under this chapter to mask works owned by nationals, domiciliaries, or sovereign authorities of foreign nations as the Secretary, in consultation with the Register of Copyrights, considers would promote the purposes of this chapter and international comity with respect to mask work protection. Not later than July 1, 1994, the Secretary of Commerce, in consultation with the Register of Copyrights, shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report updating the matters contained in the report transmitted under the preceding sentence. ------------------ Chapter 9 Endnotes 1 In 1984, the Semiconductor Chip Protection Act amended title 17 of the *United States Code *to add a new chapter 9 entitled "Protection of Semiconductor Chip Products." Pub. L. No. 98-620, 98 Stat. 3347. 2 In 1997, the heading for section 903 in the table of sections was amended by adding ", transfer, licensure, and recordation" at the end thereof, in lieu of "and transfer." Pub. L. No. 105-80, 111 Stat. 1529, 1535. 3 In 1987, section 902 was amended by adding the last sentence in subsection (a)(2). Pub. L. No. 100-159, 101 Stat. 899, 900. 4 In 1997, section 909 was amended by correcting misspellings in subsection (b)(1). Pub. L. No. 105-80, 111 Stat. 1529, 1535. 5 In 1990, the Copyright Remedy Clarification Act amended section 910 by adding the last two sentences to subsection (a). Pub. L. No. 101-553, 104 Stat. 2749, 2750. In 1997, a technical correction amended section 910(a) by capitalizing the first word of the second sentence. Pub. L. No. 105-80, 111 Stat. 1529 1535. 6 In 1990, the Copyright Remedy Clarification Act amended section 911 by adding subsection (g). Pub. L. No. 101-553, 104 Stat. 2749, 2750. 7 In 1988, the Judicial Improvements and Access to Justice Act amended section 912 by deleting subsection (d) and redesignating subsection (e) as subsection (d). Pub. L. No. 100-702, 102 Stat. 4642, 4672. The Audio Home Recording Act of 1992 amended section 912 by inserting "or 10" after "8" in subsections (a) and (b). Pub. L. No. 102-563, 106 Stat. 4237, 4248. 8 In 1987, section 914 was amended in subsection (e) by inserting "on July 1, 1991" in lieu of "three years after such date of enactment" and by adding the last sentence to subsection (f)(2). Pub. L. No. 100-159, 101 Stat. 899. The Semiconductor International Protection Extension Act of 1991 amended section 914 by inserting "or implementing" after "enacting" in the first sentence of subsection (a)(1)(B), by changing the date in subsection (e) to "July 1, 1995" and by changing the date in the last sentence of subsection (f)(2) to "July 1, 1994." Pub. L. No. 102-64, 105 Stat. 320. On July 1, 1995, section 914 expired as required by subsection (e). It was rendered largely unnecessary upon the entry into force on January 1, 1995, of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)(Annex 1C to the World Trade Organization (WTO) Agreement). Part II, section 6 of TRIPs protects semiconductor chip products and was the basis for Presidential Proclamation No. 6780, March 23, 1995, under section 902(a)(2) extending protection to all present and future WTO members (34 countries as of February 10, 1999), as of January 1, 1996. See Part IV of the Appendix. For a discussion of Congressional findings regarding extending protection to semiconductor chip products of foreign entities, see Pub. L. No. 100-159, 101 Stat. 899, and the Semiconductor International Protection Extension Act of 1991, Pub. L. No. 102-64, 105 Stat. 320.5 ------------------------------------------------------------------------ Chapter 10 [1] Digital Audio Recording Devices and Media + Subchapter A--Definitions + 1001. Definitions + Subchapter B--Copying Controls + 1002. Incorporation of copying controls + Subchapter C--Royalty Payments + 1003. Obligation to make royalty payments + 1004. Royalty payments + 1005. Deposit of royalty payments and deduction of expenses + 1006. Entitlement to royalty payments + 1007. Procedures for distributing royalty payments + Subchapter D--Prohibition on Certain Infringement Actions, Remedies, and Arbitration + 1008. Prohibition on certain infringement actions + 1009. Civil remedies + 1010. Arbitration of certain disputes Subchapter A Definitions Section 1001. Definitions As used in this chapter, the following terms have the following meanings: (1) A "digital audio copied recording" is a reproduction in a digital recording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission. (2) A "digital audio interface device" is any machine or device that is designed specifically to communicate digital audio information and related interface data to a digital audio recording device through a nonprofessional interface. (3) A "digital audio recording device" is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for- (A) professional model products, and (B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds. (4)(A) A "digital audio recording medium" is any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device. (B) Such term does not include any material object- (i) that embodies a sound recording at the time it is first distributed by the importer or manufacturer; or (ii) that is primarily marketed and most commonly used by consumers either for the purpose of making copies of motion pictures or other audiovisual works or for the purpose of making copies of nonmusical literary works, including computer programs or data bases. (5)(A) A "digital musical recording" is a material object- (i) in which are fixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sounds, if any, and (ii) from which the sounds and material can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (B) A "digital musical recording" does not include a material object- (i) in which the fixed sounds consist entirely of spoken word recordings, or (ii) in which one or more computer programs are fixed, except that a digital musical recording may contain statements or instructions constituting the fixed sounds and incidental material, and statements or instructions to be used directly or indirectly in order to bring about the perception, reproduction, or communication of the fixed sounds and incidental material. (C) For purposes of this paragraph- (i) a "spoken word recording" is a sound recording in which are fixed only a series of spoken words, except that the spoken words may be accompanied by incidental musical or other sounds, and (ii) the term "incidental" means related to and relatively minor by comparison. (6) "Distribute" means to sell, lease, or assign a product to consumers in the United States, or to sell, lease, or assign a product in the United States for ultimate transfer to consumers in the United States. (7) An "interested copyright party" is- (A) the owner of the exclusive right under section 106(1) of this title to reproduce a sound recording of a musical work that has been embodied in a digital musical recording or analog musical recording lawfully made under this title that has been distributed; (B) the legal or beneficial owner of, or the person that controls, the right to reproduce in a digital musical recording or analog musical recording a musical work that has been embodied in a digital musical recording or analog musical recording lawfully made under this title that has been distributed; (C) a featured recording artist who performs on a sound recording that has been distributed; or (D) any association or other organization- (i) representing persons specified in subparagraph (A), (B), or (C), or (ii) engaged in licensing rights in musical works to music users on behalf of writers and publishers. (8) To "manufacture" means to produce or assemble a product in the United States. A "manufacturer" is a person who manufactures. (9) A "music publisher" is a person that is authorized to license the reproduction of a particular musical work in a sound recording. (10) A "professional model product" is an audio recording device that is designed, manufactured, marketed, and intended for use by recording professionals in the ordinary course of a lawful business, in accordance with such requirements as the Secretary of Commerce shall establish by regulation. (11) The term "serial copying" means the duplication in a digital format of a copyrighted musical work or sound recording from a digital reproduction of a digital musical recording. The term "digital reproduction of a digital musical recording" does not include a digital musical recording as distributed, by authority of the copyright owner, for ultimate sale to consumers. (12) The "transfer price" of a digital audio recording device or a digital audio recording medium- (A) is, subject to subparagraph (B)- (i) in the case of an imported product, the actual entered value at United States Customs (exclusive of any freight, insurance, and applicable duty), and (ii) in the case of a domestic product, the manufacturer's transfer price (FOB the manufacturer, and exclusive of any direct sales taxes or excise taxes incurred in connection with the sale); and (B) shall, in a case in which the transferor and transferee are related entities or within a single entity, not be less than a reasonable arms- length price under the principles of the regulations adopted pursuant to section 482 of the Internal Revenue Code of 1986, or any successor provision to such section. (13) A "writer" is the composer or lyricist of a particular musical work. Subchapter B-Copying Controls Section 1002. Incorporation of copying controls (a) Prohibition on Importation, Manufacture, and Distribution. No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to- (1) the Serial Copy Management System; (2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system's method of serial copying regulation and devices using the Serial Copy Management System; or (3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying. (b) Development of Verification Procedure. The Secretary of Commerce shall establish a procedure to verify, upon the petition of an interested party, that a system meets the standards set forth in subsection (a)(2). (c) Prohibition on Circumvention of the System. No person shall import, manufacture, or distribute any device, or offer or perform any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent any program or circuit which implements, in whole or in part, a system described in subsection (a). (d) Encoding of Information on Digital Musical Recordings. (1) Prohibition on encoding inaccurate information. No person shall encode a digital musical recording of a sound recording with inaccurate information relating to the category code, copyright status, or generation status of the source material for the recording. (2) Encoding of copyright status not required. Nothing in this chapter requires any person engaged in the importation or manufacture of digital musical recordings to encode any such digital musical recording with respect to its copyright status. (e) Information Accompanying Transmission in Digital Format. Any person who transmits or otherwise communicates to the public any sound recording in digital format is not required under this chapter to transmit or otherwise communicate the information relating to the copyright status of the sound recording. Any such person who does transmit or otherwise communicate such copyright status information shall transmit or communicate such information accurately. Subchapter C Royalty Payments Section 1003. Obligation to make royalty payments (a) Prohibition on Importation and Manufacture. No person shall import into and distribute, or manufacture and distribute, any digital audio recording device or digital audio recording medium unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments for such device or medium specified in section 1004. (b) Filing of Notice. The importer or manufacturer of any digital audio recording device or digital audio recording medium, within a product category or utilizing a technology with respect to which such manufacturer or importer has not previously filed a notice under this subsection, shall file with the Register of Copyrights a notice with respect to such device or medium, in such form and content as the Register shall prescribe by regulation. (c) Filing of Quarterly and Annual Statements of Account. (1) Generally. Any importer or manufacturer that distributes any digital audio recording device or digital audio recording medium that it manufactured or imported shall file with the Register of Copyrights, in such form and content as the Register shall prescribe by -regulation, such quarterly and annual statements of account with respect to such distribution as the Register shall prescribe by regulation. (2) Certification, verification, and confidentiality. Each such statement shall be certified as accurate by an authorized officer or principal of the importer or manufacturer. The Register shall issue regulations to provide for the verification and audit of such statements and to protect the confidentiality of the information contained in such statements. Such regulations shall provide for the disclosure, in confidence, of such statements to interested copyright parties. (3) Royalty Payments. Each such statement shall be accompanied by the royalty payments specified in section 1004. Section 1004. Royalty payments [2] (a) Digital Audio Recording Devices. (1) Amount of payment. The royalty payment due under section 1003 for each digital audio recording device imported into and distributed in the United States, or manufactured and distributed in the United States, shall be 2 percent of the transfer price. Only the first person to manufacture and distribute or import and distribute such device shall be required to pay the royalty with respect to such device. (2) Calculation for devices distributed with other devices. With respect to a digital audio recording device first distributed in combination with one or more devices, either as a physically integrated unit or as separate components, the royalty payment shall be calculated as follows: (A) If the digital audio recording device and such other devices are part of a physically integrated unit, the royalty payment shall be based on the transfer price of the unit, but shall be reduced by any royalty payment made on any digital audio recording device included within the unit that was not first distributed in combination with the unit. (B) If the digital audio recording device is not part of a physically integrated unit and substantially similar devices have been distributed separately at any time during the preceding 4 calendar quarters, the royalty payment shall be based on the average transfer price of such devices during those 4 quarters. (C) If the digital audio recording device is not part of a physically integrated unit and substantially similar devices have not been distributed separately at any time during the preceding 4 calendar quarters, the royalty payment shall be based on a constructed price reflecting the proportional value of such device to the combination as a whole. (3) Limits on royalties. Notwithstanding paragraph (1) or (2), the amount of the royalty payment for each digital audio recording device shall not be less than $1 nor more than the royalty maximum. The royalty maximum shall be $8 per device, except that in the case of a physically integrated unit containing more than 1 digital audio recording device, the royalty maximum for such unit shall be $12. During the 6th year after the effective date of this chapter, and not more than once each year thereafter, any interested copyright party may petition the Librarian of Congress to increase the royalty maximum and, if more than 20 percent of the royalty payments are at the relevant royalty maximum, the Librarian of Congress shall prospectively increase such royalty maximum with the goal of having no more than 10 percent of such payments at the new royalty maximum; however the amount of any such increase as a percentage of the royalty maximum shall in no event exceed the percentage increase in the Consumer Price Index during the period under review. (b) Digital Audio Recording Media. The royalty payment due under section 1003 for each digital audio recording medium imported into and distributed in the United States, or manufactured and distributed in the United States, shall be 3 percent of the transfer price. Only the first person to manufacture and distribute or import and distribute such medium shall be required to pay the royalty with respect to such medium. Section 1005. Deposit of royalty payments and deduction of expenses [3] The Register of Copyrights shall receive all royalty payments deposited under this chapter and, after deducting the reasonable costs incurred by the Copyright Office under this chapter, shall deposit the balance in the Treasury of the United States as offsetting receipts, in such manner as the Secretary of the Treasury directs. All funds held by the Secretary of the Treasury shall be invested in interest-bearing United States securities for later distribution with interest under section 1007. The Register may, in the Register's discretion, 4 years after the close of any calendar year, close out the royalty payments account for that calendar year, and may treat any funds remaining in such account and any subsequent deposits that would otherwise be attributable to that calendar year as attributable to the succeeding calendar year. Section 1006. Entitlement to royalty payments [4] (a) Interested Copyright Parties. The royalty payments deposited pursuant to section 1005 shall, in accordance with the procedures specified in section 1007, be distributed to any interested copyright party- (1) whose musical work or sound recording has been- (A) embodied in a digital musical recording or an analog musical recording lawfully made under this title that has been distributed, and (B) distributed in the form of digital musical recordings or analog musical recordings or disseminated to the public in transmissions, during the period to which such payments pertain; and (2) who has filed a claim under section 1007. (b) Allocation of Royalty Payments to Groups. The royalty payments shall be divided into 2 funds as follows: (1) The sound recordings fund. 66 2/3 percent of the royalty payments shall be allocated to the Sound Recordings Fund. 2 5/8 percent of the royalty payments allocated to the Sound Recordings Fund shall be placed in an escrow account managed by an independent administrator jointly appointed by the interested copyright parties described in section 1001(7)(A) and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians or any successor entity) who have performed on sound recordings distributed in the United States. 1 3/8 percent of the royalty payments allocated to the Sound Recordings Fund shall be placed in an escrow account managed by an independent administrator jointly appointed by the interested copyright parties described in section 1001(7)(A) and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists or any successor entity) who have performed on sound recordings distributed in the United States. 40 percent of the remaining royalty payments in the Sound Recordings Fund shall be distributed to the interested copyright parties described in section 1001(7)(C), and 60 percent of such remaining royalty payments shall be distributed to the interested copyright parties described in section 1001(7)(A). (2) The musical works fund. (A) 33 1/3 percent of the royalty payments shall be allocated to the Musical Works Fund for distribution to interested copyright parties described in section 1001(7)(B). (B)(i) Music publishers shall be entitled to 50 percent of the royalty payments allocated to the Musical Works Fund. (ii) Writers shall be entitled to the other 50 percent of the royalty payments allocated to the Musical Works Fund. (c) Allocation of Royalty Payments Within Groups. If all interested copyright parties within a group specified in subsection (b) do not agree on a voluntary proposal for the distribution of the royalty payments within each group, the Librarian of Congress shall convene a copyright arbitration royalty panel which shall, pursuant to the procedures specified under section 1007(c), allocate royalty payments under this section based on the extent to which, during the relevant period- (1) for the Sound Recordings Fund, each sound recording was distributed in the form of digital musical recordings or analog musical recordings; and (2) for the Musical Works Fund, each musical work was distributed in the form of digital musical recordings or analog musical recordings or disseminated to the public in transmissions. Section 1007. Procedures for distributing royalty payments [5] (a) Filing of Claims and Negotiations. (1) Filing of claims. During the first 2 months of each calendar year after calendar year 1992, every interested copyright party seeking to receive royalty payments to which such party is entitled under section 1006 shall file with the Librarian of Congress a claim for payments collected during the preceding year in such form and manner as the Librarian of Congress shall prescribe by regulation. (2) Negotiations. Notwithstanding any provision of the antitrust laws, for purposes of this section interested copyright parties within each group specified in section 1006(b) may agree among themselves to the proportionate division of royalty payments, may lump their claims together and file them jointly or as a single claim, or may designate a common agent, including any organization described in section 1001(7) (D), to negotiate or receive payment on their behalf; except that no agreement under this subsection may modify the allocation of royalties specified in section 1006(b). (b) Distribution of Payments in the Absence of a Dispute. After the period established for the filing of claims under subsection (a), in each year after 1992, the Librarian of Congress shall determine whether there exists a controversy concerning the distribution of royalty payments under section 1006(c). If the Librarian of Congress determines that no such controversy exists, the Librarian of Congress shall, within 30 days after such determination, authorize the distribution of the royalty payments as set forth in the agreements regarding the distribution of royalty payments entered into pursuant to subsection (a), after deducting its reasonable administrative costs under this section. (c) Resolution of Disputes. If the Librarian of Congress finds the existence of a controversy, the Librarian shall, pursuant to chapter 8 of this title, convene a copyright arbitration royalty panel to determine the distribution of royalty payments. During the pendency of such a proceeding, the Librarian of Congress shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall, to the extent feasible, authorize the distribution of any amounts that are not in controversy. The Librarian of Congress shall, before authorizing the distribution of such royalty payments, deduct the reasonable administrative costs incurred by the Librarian under this section. Subchapter D - Prohibition on Certain Infringement Actions, Remedies, and Arbitration Section 1008. Prohibition on certain infringement actions No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. Section 1009. Civil remedies (a) Civil Actions. Any interested copyright party injured by a violation of section 1002 or 1003 may bring a civil action in an appropriate United States district court against any person for such violation. (b) Other Civil Actions. Any person injured by a violation of this chapter may bring a civil action in an appropriate United States district court for actual damages incurred as a result of such violation. (c) Powers of the Court. In an action brought under subsection (a), the court- (1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain such violation; (2) in the case of a violation of section 1002, or in the case of an injury resulting from a failure to make royalty payments required by section 1003, shall award damages under subsection (d); (3) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof; and (4) in its discretion may award a reasonable attorney's fee to the prevailing party. (d) Award of Damages. (1) Damages for section 1002 or 1003 violations. (A) Actual damages. (i) In an action brought under subsection (a), if the court finds that a violation of section 1002 or 1003 has occurred, the court shall award to the complaining party its actual damages if the complaining party elects such damages at any time before final judgment is entered. (ii) In the case of section 1003, actual damages shall constitute the royalty payments that should have been paid under section 1004 and deposited under section 1005. In such a case, the court, in its discretion, may award an additional amount of not to exceed 50 percent of the actual damages. (B) Statutory damages for section 1002 violations. (i) Device. A complaining party may recover an award of statutory damages for each violation of section 1002(a) or (c) in the sum of not more than $2,500 per device involved in such violation or per device on which a service prohibited by section 1002(c) has been performed, as the court considers just. (ii) Digital musical recording. A complaining party may recover an award of statutory damages for each violation of section 1002(d) in the sum of not more than $25 per digital musical recording involved in such violation, as the court considers just. (iii) Transmission. A complaining party may recover an award of damages for each transmission or communication that violates section 1002(e) in the sum of not more than $10,000, as the court considers just. (2) Repeated violations. In any case in which the court finds that a person has violated section 1002 or 1003 within 3 years after a final judgment against that person for another such violation was entered, the court may increase the award of damages to not more than double the amounts that would otherwise be awarded under paragraph (1), as the court considers just. (3) Innocent violations of section 1002. The court in its discretion may reduce the total award of damages against a person violating section 1002 to a sum of not less than $250 in any case in which the court finds that the violator was not aware and had no reason to believe that its acts constituted a violation of section 1002. (e) Payment of Damages. Any award of damages under subsection (d) shall be deposited with the Register pursuant to section 1005 for distribution to interested copyright parties as though such funds were royalty payments made pursuant to section 1003. (f) Impounding of Articles. At any time while an action under subsection (a) is pending, the court may order the impounding, on such terms as it deems reasonable, of any digital audio recording device, digital musical recording, or device specified in section 1002(c) that is in the custody or control of the alleged violator and that the court has reasonable cause to believe does not comply with, or was involved in a violation of, section 1002. (g) Remedial Modification and Destruction of Articles. In an action brought under subsection (a), the court may, as part of a final judgment or decree finding a violation of section 1002, order the remedial modification or the destruction of any digital audio recording device, digital musical recording, or device specified in section 1002(c) that- (1) does not comply with, or was involved in a violation of, section 1002, and (2) is in the custody or control of the violator or has been impounded under subsection (f). Section 1010. Arbitration of certain disputes [6] (a) Scope of Arbitration. Before the date of first distribution in the United States of a digital audio recording device or a digital audio interface device, any party manufacturing, importing, or distributing such device, and any interested copyright party may mutually agree to binding arbitration for the purpose of determining whether such device is subject to section 1002, or the basis on which royalty payments for such device are to be made under section 1003. (b) Initiation of Arbitration Proceedings. Parties agreeing to such arbitration shall file a petition with the Librarian of Congress requesting the commencement of an arbitration proceeding. The petition may include the names and qualifications of potential arbitrators. Within 2 weeks after receiving such a petition, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of an arbitration proceeding. Such notice shall include the names and qualifications of 3 arbitrators chosen by the Librarian of Congress from a list of available arbitrators obtained from the American Arbitration Association or such similar organization as the Librarian of Congress shall select, and from potential arbitrators listed in the parties' petition. The arbitrators selected under this subsection shall constitute an Arbitration Panel. (c) Stay of Judicial Proceedings. Any civil action brought under section 1009 against a party to arbitration under this section shall, on application of one of the parties to the arbitration, be stayed until completion of the arbitration proceeding. (d) Arbitration Proceeding. The Arbitration Panel shall conduct an arbitration proceeding with respect to the matter concerned, in accordance with such procedures as it may adopt. The Panel shall act on the basis of a fully documented written record. Any party to the arbitration may submit relevant information and proposals to the Panel. The parties to the proceeding shall bear the entire cost thereof in such manner and proportion as the Panel shall direct. (e) Report to the Librarian of Congress. Not later than 60 days after publication of the notice under subsection (b) of the initiation of an arbitration proceeding, the Arbitration Panel shall report to the Librarian of Congress its determination concerning whether the device concerned is subject to section 1002, or the basis on which royalty payments for the device are to be made under section 1003. Such report shall be accompanied by the written record, and shall set forth the facts that the Panel found relevant to its determination. (f) Action by the Librarian of Congress. Within 60 days after receiving the report of the Arbitration Panel under subsection (e), the Librarian of Congress shall adopt or reject the determination of the Panel. The Librarian of Congress shall adopt the determination of the Panel unless the Librarian of Congress finds that the determination is clearly erroneous. If the Librarian of Congress rejects the determination of the Panel, the Librarian of Congress shall, before the end of that 60-day period, and after full examination of the record created in the arbitration proceeding, issue an order setting forth the Librarian's decision and the reasons therefor. The Librarian of Congress shall cause to be published in the Federal Register the determination of the Panel and the decision of the Librarian of Congress under this subsection with respect to the determination (including any order issued under the preceding sentence). (g) Judicial Review. Any decision of the Librarian of Congress under subsection (f) with respect to a determination of the Arbitration Panel may be appealed, by a party to the arbitration, to the United States Court of Appeals for the District of Columbia Circuit, within 30 days after the publication of the decision in the Federal Register. The pendency of an appeal under this subsection shall not stay the decision of the Librarian of Congress. The court shall have jurisdiction to modify or vacate a decision of the Librarian of Congress only if it finds, on the basis of the record before the Librarian of Congress, that the Arbitration Panel or the Librarian of Congress acted in an arbitrary manner. If the court modifies the decision of the Librarian of Congress, the court shall have jurisdiction to enter its own decision in accordance with its final judgment. The court may further vacate the decision of the Librarian of Congress and remand the case for arbitration proceedings as provided in this section. ------------------- Chapter 10 Endnotes 1 The Audio Home Recording Act of 1992 added chapter 10, entitled "Digital Audio Recording Devices and Media," to title 17. Pub. L. No. 102-563, 106 Stat. 4237. 2 The Copyright Royalty Tribunal Reform Act of 1993 amended section 1004(a)(3) by substituting "Librarian of Congress" in lieu of "Copyright Royalty Tribunal," where appropriate. Pub. L. No. 103-198, 107 Stat. 2304, 2312. 3 The Copyright Royalty Tribunal Reform Act of 1993 amended section 1005 by striking the last sentence which began "The Register shall submit to the Copyright Royalty Tribunal." Pub. L. No. 103-198, 107 Stat. 2304, 2312. 4 The Copyright Royalty Tribunal Reform Act of 1993 amended section 1006(c) by substituting "Librarian of Congress" in lieu of "Copyright Royalty Tribunal," where appropriate. Pub. L. No. 103-198, 107 Stat. 2304, 2312. In 1997, section 1006(b)(1) was amended to insert "Federation of Television" in lieu of "Federation Television" wherever it appeared. Pub. L. No. 105-80, 111 Stat. 1529, 1535. 5 The Copyright Royalty Tribunal Reform Act of 1993 amended section 1007 by substituting "Librarian of Congress" in lieu of "Copyright Royalty Tribunal" or "Tribunal," where appropriate, by amending the first sentence in subsection (c) and by inserting "the reasonable administrative costs incurred by the Librarian" in the last sentence of subsection (c), in lieu of "its reasonable administrative costs." Pub. L. No. 103-198, 107 Stat. 2304, 2312. In 1997, section 1007 was amended, in subsection (a)(1), by inserting "calendar year 1992" in lieu of "the calendar year in which this chapter takes effect" and, in subsection (b), by inserting "1992" in lieu of "the year in which this section takes effect," and also in subsection (b), by inserting "After" in lieu of "Within 30 days after." Pub. L. No. 105-80, 111 Stat. 1529, 1534 and 1535. 6 The Copyright Royalty Tribunal Reform Act of 1993 amended section 1010 by substituting "Librarian of Congress" in lieu of "Copyright Royalty Tribunal" or "Tribunal," where appropriate, and by inserting "Librarian's" in lieu of "its." Pub. L. No. 103-198, 107 Stat. 2304, 2312. That Act, which established copyright arbitration royalty panels, states that "[a]ll royalty rates and all determinations with respect to the proportionate division of compulsory license fees among copyright claimants, whether made by the Copyright Royalty Tribunal, or by voluntary agreement, before the effective date set forth in subsection (a) [December 17, 1993] shall remain in effect until modified by voluntary agreement or pursuant to the amendments made by this Act." Pub. L. No. 103-198, 107 Stat. 2304, 2313. ------------------------------------------------------------------------ Chapter 11 [1] Sound Recordings and Music Videos + 1101. Unauthorized fixation and trafficking in sound recordings and music videos Section 1101. Unauthorized fixation and trafficking in sound recordings and music videos (a) Unauthorized Acts. Anyone who, without the consent of the performer or performers involved- (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation, (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright. (b) Definition. As used in this section, the term "traffic in" means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of. (c) Applicability. This section shall apply to any act or acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act. (d) State Law Not Preempted. Nothing in this section may be construed to annul or limit any rights or remedies under the common law or statutes of any State. ------------------ Chapter 11 Endnote 1 In 1994, the Uruguay Round Agreements Act added chapter 11, entitled "Sound Recordings and Music Videos," to title 17. Pub. L. No. 103-465, 108 Stat. 4809, 4974. ------------------------------------------------------------------------ Chapter 12 [1] Copyright Protection and Management Systems + 1201. Circumvention of copyright protection systems + 1202. Integrity of copyright management information + 1203. Civil remedies + 1204. Criminal offenses and penalties + 1205. Savings clause Section 1201. Circumvention of copyright protection systems [2] (a) Violations Regarding Circumvention of Technological Measures. (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter. (B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C). (C) During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, the Librarian of Congress, upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceeding for purposes of subparagraph (B) of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works. In conducting such rule-making, the Librarian shall examine- (i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate. (D) The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period. (E) Neither the exception under subparagraph (B) from the applicability of the prohibition contained in subparagraph (A), nor any determination made in a rulemaking conducted under subparagraph (C), may be used as a defense in any action to enforce any provision of this title other than this paragraph. (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. (3) As used in this subsection- (A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. (b) Additional Violations. (1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that- (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; (B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof. (2) As used in this subsection- (A) to "circumvent protection afforded by a technological measure" means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and (B) a technological measure "effectively protects a right of a copyright owner under this title" if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title. (c) Other Rights, Etc., Not Affected. (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. (2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof. (3) Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1). (4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products. (d) Exemption for Nonprofit Libraries, Archives, and Educational Institutions. (1) A nonprofit library, archives, or educational institution which gains access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work for the sole purpose of engaging in conduct permitted under this title shall not be in violation of subsection (a)(1)(A). A copy of a work to which access has been gained under this paragraph- (A) may not be retained longer than necessary to make such good faith determination; and (B) may not be used for any other purpose. (2) The exemption made available under paragraph (1) shall only apply with respect to a work when an identical copy of that work is not reasonably available in another form. (3) A nonprofit library, archives, or educational institution that willfully for the purpose of commercial advantage or financial gain violates paragraph (1)- (A) shall, for the first offense, be subject to the civil remedies under section 1203; and (B) shall, for repeated or subsequent offenses, in addition to the civil remedies under section 1203, forfeit the exemption provided under paragraph (1). (4) This subsection may not be used as a defense to a claim under subsection (a)(2) or (b), nor may this subsection permit a nonprofit library, archives, or educational institution to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, component, or part thereof, which circumvents a technological measure. (5) In order for a library or archives to qualify for the exemption under this subsection, the collections of that library or archives shall be- (A) open to the public; or (B) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field. (e) Law Enforcement, Intelligence, and Other Government Activities. This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term "information security" means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network. (f) Reverse Engineering. (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title. (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title. (3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section. (4) For purposes of this subsection, the term "interoperability" means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged. (g) Encryption Research. (1) Definitions. For purposes of this subsection- (A) the term "encryption research" means activities necessary to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works, if these activities are conducted to advance the state of knowledge in the field of encryption technology or to assist in the development of encryption products; and (B) the term "encryption technology" means the scrambling and descrambling of information using mathematical formulas or algorithms. (2) Permissible Acts of Encryption Research. Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to circumvent a technological measure as applied to a copy, phonorecord, performance, or display of a published work in the course of an act of good faith encryption research if- (A) the person lawfully obtained the encrypted copy, phonorecord, performance, or display of the published work; (B) such act is necessary to conduct such encryption research; (C) the person made a good faith effort to obtain authorization before the circumvention; and (D) such act does not constitute infringement under this title or a violation of applicable law other than this section, including section 1030 of title 18 and those provisions of title 18 amended by the Computer Fraud and Abuse Act of 1986. (3) Factors in Determining Exemption. In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include- (A) whether the information derived from the encryption research was disseminated, and if so, whether it was disseminated in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, versus whether it was disseminated in a manner that facilitates infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security; (B) whether the person is engaged in a legitimate course of study, is employed, or is appropriately trained or experienced, in the field of encryption technology; and (C) whether the person provides the copyright owner of the work to which the technological measure is applied with notice of the findings and documentation of the research, and the time when such notice is provided. (4) Use of Technological Means for Research Activities. Notwithstanding the provisions of subsection (a)(2), it is not a violation of that subsection for a person to- (A) develop and employ technological means to circumvent a technological measure for the sole purpose of that person performing the acts of good faith encryption research described in paragraph (2); and (B) provide the technological means to another person with whom he or she is working collaboratively for the purpose of conducting the acts of good faith encryption research described in paragraph (2) or for the purpose of having that other person verify his or her acts of good faith encryption research described in paragraph (2). (5) Report to Congress. Not later than 1 year after the date of the enactment of this chapter, the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall jointly report to the Congress on the effect this subsection has had on- (A) encryption research and the development of encryption technology; (B) the adequacy and effectiveness of technological measures designed to protect copyrighted works; and (C) protection of copyright owners against the unauthorized access to their encrypted copyrighted works. The report shall include legislative recommendations, if any. (h) Exceptions Regarding Minors. In applying subsection (a) to a component or part, the court may consider the necessity for its intended and actual incorporation in a technology, product, service, or device, which- (1) does not itself violate the provisions of this title; and (2) has the sole purpose to prevent the access of minors to material on the Internet. (i) Protection of Personally Identifying Information. (1) Circumvention Permitted. Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to circumvent a technological measure that effectively controls access to a work protected under this title, if- (A) the technological measure, or the work it protects, contains the capability of collecting or disseminating personally identifying information reflecting the online activities of a natural person who seeks to gain access to the work protected; (B) in the normal course of its operation, the technological measure, or the work it protects, collects or disseminates personally identifying information about the person who seeks to gain access to the work protected, without providing conspicuous notice of such collection or dissemination to such person, and without providing such person with the capability to prevent or restrict such collection or dissemination; (C) the act of circumvention has the sole effect of identifying and disabling the capability described in subparagraph (A), and has no other effect on the ability of any person to gain access to any work; and (D) the act of circumvention is carried out solely for the purpose of preventing the collection or dissemination of personally identifying information about a natural person who seeks to gain access to the work protected, and is not in violation of any other law. (2) Inapplicability to Certain Technological Measures. This subsection does not apply to a technological measure, or a work it protects, that does not collect or disseminate personally identifying information and that is disclosed to a user as not having or using such capability. (j) Security Testing. (1) Definition. For purposes of this subsection, the term "security testing" means accessing a computer, computer system, or computer network, solely for the purpose of good faith testing, investigating, or correcting, a security flaw or vulnerability, with the authorization of the owner or operator of such computer, computer system, or computer network. (2) Permissible Acts of Security Testing. Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to engage in an act of security testing, if such act does not constitute infringement under this title or a violation of applicable law other than this section, including section 1030 of title 18 and those provisions of title 18 amended by the Computer Fraud and Abuse Act of 1986. (3) Factors in Determining Exemption. In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include- (A) whether the information derived from the security testing was used solely to promote the security of the owner or operator of such computer, computer system or computer network, or shared directly with the developer of such computer, computer system, or computer network; and (B) whether the information derived from the security testing was used or maintained in a manner that does not facilitate infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security. (4) Use of Technological Means for Security Testing. Notwithstanding the provisions of subsection (a)(2), it is not a violation of that subsection for a person to develop, produce, distribute or employ technological means for the sole purpose of performing the acts of security testing described in subsection (2), provided such technological means does not otherwise violate section (a)(2). (k) Certain Analog Devices and Certain Technological Measures. (1) Certain Analog Devices. (A) Effective 18 months after the date of the enactment of this chapter, no person shall manufacture, import, offer to the public, provide or otherwise traffic in any- (i) VHS format analog video cassette recorder unless such recorder conforms to the automatic gain control copy control technology; (ii) 8mm format analog video cassette camcorder unless such camcorder conforms to the automatic gain control technology; (iii) Beta format analog video cassette recorder, unless such recorder conforms to the automatic gain control copy control technology, except that this requirement shall not apply until there are 1,000 Beta format analog video cassette recorders sold in the United States in any one calendar year after the date of the enactment of this chapter; (iv) 8mm format analog video cassette recorder that is not an analog video cassette camcorder, unless such recorder conforms to the automatic gain control copy control technology, except that this requirement shall not apply until there are 20,000 such recorders sold in the United States in any one calendar year after the date of the enactment of this chapter; or (v) analog video cassette recorder that records using an NTSC format video input and that is not otherwise covered under clauses (i) through (iv), unless such device conforms to the automatic gain control copy control technology. (B) Effective on the date of the enactment of this chapter, no person shall manufacture, import, offer to the public, provide or otherwise traffic in- (i) any VHS format analog video cassette recorder or any 8mm format analog video cassette recorder if the design of the model of such recorder has been modified after such date of enactment so that a model of recorder that previously conformed to the automatic gain control copy control technology no longer conforms to such technology; or (ii) any VHS format analog video cassette recorder, or any 8mm format analog video cassette recorder that is not an 8mm analog video cassette camcorder, if the design of the model of such recorder has been modified after such date of enactment so that a model of recorder that previously conformed to the four-line colorstripe copy control technology no longer conforms to such technology. Manufacturers that have not previously manufactured or sold a VHS format analog video cassette recorder, or an 8mm format analog cassette recorder, shall be required to conform to the four-line colorstripe copy control technology in the initial model of any such recorder manufactured after the date of the enactment of this chapter, and thereafter to continue conforming to the four-line colorstripe copy control technology. For purposes of this subparagraph, an analog video cassette recorder "conforms to" the four-line colorstripe copy control technology if it records a signal that, when played back by the playback function of that recorder in the normal viewing mode, exhibits, on a reference display device, a display containing distracting visible lines through portions of the viewable picture. (2) Certain Encoding Restrictions. No person shall apply the automatic gain control copy control technology or colorstripe copy control technology to prevent or limit consumer copying except such copying- (A) of a single transmission, or specified group of transmissions, of live events or of audiovisual works for which a member of the public has exercised choice in selecting the transmissions, including the content of the transmissions or the time of receipt of such transmissions, or both, and as to which such member is charged a separate fee for each such transmission or specified group of transmissions; (B) from a copy of a transmission of a live event or an audiovisual work if such transmission is provided by a channel or service where payment is made by a member of the public for such channel or service in the form of a subscription fee that entitles the member of the public to receive all of the programming contained in such channel or service; (C) from a physical medium containing one or more prerecorded audiovisual works; or (D) from a copy of a transmission described in subparagraph (A) or from a copy made from a physical medium described in subparagraph (C). In the event that a transmission meets both the conditions set forth in subparagraph (A) and those set forth in subparagraph (B), the transmission shall be treated as a transmission described in subparagraph (A). (3) Inapplicability. This subsection shall not- (A) require any analog video cassette camcorder to conform to the automatic gain control copy control technology with respect to any video signal received through a camera lens; (B) apply to the manufacture, importation, offer for sale, provision of, or other trafficking in, any professional analog video cassette recorder; or (C) apply to the offer for sale or provision of, or other trafficking in, any previously owned analog video cassette recorder, if such recorder was legally manufactured and sold when new and not subsequently modified in violation of paragraph (1)(B). (4) Definitions. For purposes of this subsection: (A) An "analog video cassette recorder" means a device that records, or a device that includes a function that records, on electromagnetic tape in an analog format the electronic impulses produced by the video and audio portions of a television program, motion picture, or other form of audiovisual work. (B) An "analog video cassette camcorder" means an analog video cassette recorder that contains a recording function that operates through a camera lens and through a video input that may be connected with a television or other video playback device. (C) An analog video cassette recorder "conforms" to the automatic gain control copy control technology if it- (i) detects one or more of the elements of such technology and does not record the motion picture or transmission protected by such technology; or (ii) records a signal that, when played back, exhibits a meaningfully distorted or degraded display. (D) The term "professional analog video cassette recorder" means an analog video cassette recorder that is designed, manufactured, marketed, and intended for use by a person who regularly employs such a device for a lawful business or industrial use, including making, performing , displaying, distributing, or transmitting copies of motion pictures on a commercial scale. (E) The terms "VHS format," "8mm format," "Beta format," "automatic gain control copy control technology," "colorstripe copy control technology," "four-line version of the colorstripe copy control technology," and "NTSC" have the meanings that are commonly understood in the consumer electronics and motion picture industries as of the date of the enactment of this chapter. (5) Violations. Any violation of paragraph (1) of this subsection shall be treated as a violation of subsection (b)(1) of this section. Any violation of paragraph (2) of this subsection shall be deemed an "act of circumvention" for the purposes of section 1203(c)(3)(A) of this chapter. Section 1202. Integrity of copyright management information [3] (a) False Copyright Management Information. No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement- (1) provide copyright management information that is false, or (2) distribute or import for distribution copyright management information that is false. (b) Removal or Alteration of Copyright Management Information. No person shall, without the authority of the copyright owner or the law- (1) intentionally remove or alter any copyright management information, (2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or (3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title. (c) Definition. As used in this section, the term "copyright management information" means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work: (1) The title and other information identifying the work, including the information set forth on a notice of copyright. (2) The name of, and other identifying information about, the author of a work. (3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright. (4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work. (5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work. (6) Terms and conditions for use of the work. (7) Identifying numbers or symbols referring to such information or links to such information. (8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work. (d) Law Enforcement, Intelligence, and Other Government Activities. This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term "information security" means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network. (e) Limitations on Liability. (1) Analog Transmissions. In the case of an analog transmission, a person who is making transmissions in its capacity as a broadcast station, or as a cable system, or someone who provides programming to such station or system, shall not be liable for a violation of subsection (b) if- (A) avoiding the activity that constitutes such violation is not technically feasible or would create an undue financial hardship on such person; and (B) such person did not intend, by engaging in such activity, to induce, enable, facilitate, or conceal infringement of a right under this title. (2) Digital Transmissions. (A) If a digital transmission standard for the placement of copyright management information for a category of works is set in a voluntary, consensus standard-setting process involving a representative cross- section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to the particular copyright management information addressed by such standard if- (i) the placement of such information by someone other than such person is not in accordance with such standard; and (ii) the activity that constitutes such violation is not intended to induce, enable, facilitate, or conceal infringement of a right under this title. (B) Until a digital transmission standard has been set pursuant to subparagraph (A) with respect to the placement of copyright management information for a category of works, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to such copyright management information, if the activity that constitutes such violation is not intended to induce, enable, facilitate, or conceal infringement of a right under this title, and if- (i) the transmission of such information by such person would result in a perceptible visual or aural degradation of the digital signal; or (ii) the transmission of such information by such person would conflict with- (I) an applicable government regulation relating to transmission of information in a digital signal; (II) an applicable industry-wide standard relating to the transmission of information in a digital signal that was adopted by a voluntary consensus standards body prior to the effective date of this chapter; or (III) an applicable industry-wide standard relating to the transmission of information in a digital signal that was adopted in a voluntary, consensus standards-setting process open to participation by a representative cross-section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems. (3) Definitions. As used in this subsection- (A) the term "broadcast station" has the meaning given that term in section 3 of the Communications Act of 1934 (47 U.S.C. 153); and (B) the term "cable system" has the meaning given that term in section 602 of the Communications Act of 1934 (47 U.S.C. 522). Section 1203. Civil remedies [5] (a) Civil Actions. Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation. (b) Powers of the Court. In an action brought under subsection (a), the court- (1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution; (2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation; (3) may award damages under subsection (c); (4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof; (5) in its discretion may award reasonable attorney's fees to the prevailing party; and (6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2). (c) Award of Damages. (1) In General. Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either- (A) the actual damages and any additional profits of the violator, as provided in paragraph (2), or (B) statutory damages, as provided in paragraph (3). (2) Actual Damages. The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered. (3) Statutory Damages. (A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just. (B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000. (4) Repeated Violations. In any case in which the injured party sustains the burden of proving, and the court finds, that a person has violated section 1201 or 1202 within three years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just. (5) Innocent Violations. (A) In General. The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the burden of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation. (B) Nonprofit Library, Archives, Educational Institutions, or Public Broadcasting Entities. (i) Definition. In this subparagraph, the term "public broadcasting entity" has the meaning given such term under section 118(g). (ii) In general. In the case of a nonprofit library, archives, educational institution, or public broadcasting entity, the court shall remit damages in any case in which the library, archives, educational institution, or public broadcasting entity sustains the burden of proving, and the court finds, that the library, archives, educational institution, or public broadcasting entity was not aware and had no reason to believe that its acts constituted a violation. Section 1204. Criminal offenses and penalties [5] (a) In General. Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain- (1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense. (b) Limitation for Nonprofit Library, Archives, Educational Institution, or Public Broadcasting Entity. Subsection (a) shall not apply to a nonprofit library, archives, educational institution, or public broadcasting entity (as defined under section 118(g)). (c) Statute of Limitations. No criminal proceeding shall be brought under this section unless such proceeding is commenced within five years after the cause of action arose. Section 1205. Savings clause Nothing in this chapter abrogates, diminishes, or weakens the provisions of, nor provides any defense or element of mitigation in a criminal prosecution or civil action under, any Federal or State law that prevents the violation of the privacy of an individual in connection with the individual's use of the Internet. ------------------- Chapter 12 Endnotes 1 The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 added chapter 12, entitled "Copyright Protection and Management Systems," to title 17. Pub. L. No. 105-304, 112 Stat. 2860, 2863. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 is title I of the Digital Millennium Copyright Act. Pub. L. No. 105-304, 112 Stat. 2860. 2 The Satellite Home Viewer Improvement Act of 1999 amended section 1201(a)(1)(C) by deleting "on the record." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-594. 3 In 1999, section 1202 was amended by inserting "category of works" for "category or works," in subsection (e)(2)(B). Pub. L. No. 106-44, 113 Stat. 221, 222. 4 The Satellite Home Viewer Improvement Act of 1999 amended section 1203(c)(5)(B) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593. 5 The Satellite Home Viewer Improvement Act of 1999 amended section 1204(b) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593. ------------------------------------------------------------------------ Chapter 13 [1] Protection of Original Designs + 1301. Designs protected + 1302. Designs not subject to protection + 1303. Revisions, adaptations, and rearrangements + 1304. Commencement of protection + 1305. Term of protection + 1306. Design notice + 1307. Effect of omission of notice + 1308. Exclusive rights + 1309. Infringement + 1310. Application for registration + 1311. Benefit of earlier filing date in foreign country + 1312. Oaths and acknowledgments + 1313. Examination of application and issue or refusal of registration + 1314. Certification of registration + 1315. Publication of announcements and indexes + 1316. Fees + 1317. Regulations + 1318. Copies of records + 1319. Correction of errors in certificates + 1320. Ownership and transfer + 1321. Remedy for infringement + 1322. Injunctions + 1323. Recovery for infringement + 1324. Power of court over registration + 1325. Liability for action on registration fraudulently obtained + 1326. Penalty for false marking + 1327. Penalty for false representation + 1328. Enforcement by Treasury and Postal Service + 1329. Relation to design patent law + 1330. Common law and other rights unaffected + 1331. Administrator; Office of the Administrator + 1332. No retroactive effect Section 1301. Designs protected [3] (a) Designs Protected. (1) In General. The designer or other owner of an original design of a useful article which makes the article attractive or distinctive in appearance to the purchasing or using public may secure the protection provided by this chapter upon complying with and subject to this chapter. (2) Vessel Hulls. The design of a vessel hull, including a plug or mold, is subject to protection under this chapter, notwithstanding section 1302(4). (b) Definitions. For the purpose of this chapter, the following terms have the following meanings: (1) A design is "original" if it is the result of the designer's creative endeavor that provides a distinguishable variation over prior work pertaining to similar articles which is more than merely trivial and has not been copied from another source. (2) A "useful article" is a vessel hull, including a plug or mold, which in normal use has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article which normally is part of a useful article shall be deemed to be a useful article. (3) A "vessel" is a craft- (A) that is designed and capable of independently steering a course on or through water through its own means of propulsion; and (B) that is designed and capable of carrying and transporting one or more passengers. (4) A "hull" is the frame or body of a vessel, including the deck of a vessel, exclusive of masts, sails, yards, and rigging. (5) A "plug" means a device or model used to make a mold for the purpose of exact duplication, regardless of whether the device or model has an intrinsic utilitarian function that is not only to portray the appearance of the product or to convey information. (6) A "mold" means a matrix or form in which a substance for material is used, regardless of whether the matrix or form has an intrinsic utilitarian function that is not only to portray the appearance of the product or to convey information. Section 1302. Designs not subject to protection [3] Protection under this chapter shall not be available for a design that is- (1) not original; (2) staple or commonplace, such as a standard geometric figure, a familiar symbol, an emblem, or a motif, or another shape, pattern, or configuration which has become standard, common, prevalent, or ordinary; (3) different from a design excluded by paragraph (2) only in insignificant details or in elements which are variants commonly used in the relevant trades; (4) dictated solely by a utilitarian function of the article that embodies it; or (5) embodied in a useful article that was made public by the designer or owner in the United States or a foreign country more than 2 years before the date of the application for registration under this chapter. Section 1303. Revisions, adaptations, and rearrangements Protection for a design under this chapter shall be available notwithstanding the employment in the design of subject matter excluded from protection under section 1302 if the design is a substantial revision, adaptation, or rearrangement of such subject matter. Such protection shall be independent of any subsisting protection in subject matter employed in the design, and shall not be construed as securing any right to subject matter excluded from protection under this chapter or as extending any subsisting protection under this chapter. Section 1304. Commencement of protection The protection provided for a design under this chapter shall commence upon the earlier of the date of publication of the registration under section 1313(a) or the date the design is first made public as defined by section 1310(b). Section 1305. Term of protection (a) In General. Subject to subsection (b), the protection provided under this chapter for a design shall continue for a term of 10 years beginning on the date of the commencement of protection under section 1304. (b) Expiration. All terms of protection provided in this section shall run to the end of the calendar year in which they would otherwise expire. (c) Termination of Rights. Upon expiration or termination of protection in a particular design under this chapter, all rights under this chapter in the design shall terminate, regardless of the number of different articles in which the design may have been used during the term of its protection. Section 1306. Design notice (a) Contents of Design Notice. (1) Whenever any design for which protection is sought under this chapter is made public under section 1310(b), the owner of the design shall, subject to the provisions of section 1307, mark it or have it marked legibly with a design notice consisting of (A) the words "Protected Design", the abbreviation "Prot'd Des.", or the letter "D" with a circle, or the symbol "*D*"; (B) the year of the date on which protection for the design commenced; and (C) the name of the owner, an abbreviation by which the name can be recognized, or a generally accepted alternative designation of the owner. Any distinctive identification of the owner may be used for purposes of subparagraph (C) if it has been recorded by the Administrator before the design marked with such identification is registered. (2) After registration, the registration number may be used instead of the elements specified in subparagraphs (B) and (C) of paragraph (1). (b) Location of Notice. The design notice shall be so located and applied as to give reasonable notice of design protection while the useful article embodying the design is passing through its normal channels of commerce. (c) Subsequent Removal of Notice. When the owner of a design has complied with the provisions of this section, protection under this chapter shall not be affected by the removal, destruction, or obliteration by others of the design notice on an article. Section 1307. Effect of omission of notice (a) Actions with Notice. Except as provided in subsection (b), the omission of the notice prescribed in section 1306 shall not cause loss of the protection under this chapter or prevent recovery for infringement under this chapter against any person who, after receiving written notice of the design protection, begins an undertaking leading to infringement under this chapter. (b) Actions without Notice. The omission of the notice prescribed in section 1306 shall prevent any recovery under section 1323 against a person who began an undertaking leading to infringement under this chapter before receiving written notice of the design protection. No injunction shall be issued under this chapter with respect to such undertaking unless the owner of the design reimburses that person for any reasonable expenditure or contractual obligation in connection with such undertaking that was incurred before receiving written notice of the design protection, as the court in its discretion directs. The burden of providing written notice of design protection shall be on the owner of the design. Section 1308. Exclusive rights The owner of a design protected under this chapter has the exclusive right to- (1) make, have made, or import, for sale or for use in trade, any useful article embodying that design; and (2) sell or distribute for sale or for use in trade any useful article embodying that design. Section 1309. Infringement (a) Acts of Infringement. Except as provided in subsection (b), it shall be infringement of the exclusive rights in a design protected under this chapter for any person, without the consent of the owner of the design, within the United States and during the term of such protection, to- (1) make, have made, or import, for sale or for use in trade, any infringing article as defined in subsection (e); or (2) sell or distribute for sale or for use in trade any such infringing article. (b) Acts of Sellers and Distributors. A seller or distributor of an infringing article who did not make or import the article shall be deemed to have infringed on a design protected under this chapter only if that person- (1) induced or acted in collusion with a manufacturer to make, or an importer to import such article, except that merely purchasing or giving an order to purchase such article in the ordinary course of business shall not of itself constitute such inducement or collusion; or (2) refused or failed, upon the request of the owner of the design, to make a prompt and full disclosure of that person's source of such article, and that person orders or reorders such article after receiving notice by registered or certified mail of the protection subsisting in the design. (c) Acts without Knowledge. It shall not be infringement under this section to make, have made, import, sell, or distribute, any article embodying a design which was created without knowledge that a design was protected under this chapter and was copied from such protected design. (d) Acts in Ordinary Course of Business. A person who incorporates into that person's product of manufacture an infringing article acquired from others in the ordinary course of business, or who, without knowledge of the protected design embodied in an infringing article, makes or processes the infringing article for the account of another person in the ordinary course of business, shall not be deemed to have infringed the rights in that design under this chapter except under a condition contained in paragraph (1) or (2) of subsection (b). Accepting an order or reorder from the source of the infringing article shall be deemed ordering or reordering within the meaning of subsection (b)(2). (e) Infringing Article Defined. As used in this section, an "infringing article" is any article the design of which has been copied from a design protected under this chapter, without the consent of the owner of the protected design. An infringing article is not an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium. A design shall not be deemed to have been copied from a protected design if it is original and not substantially similar in appearance to a protected design. (f) Establishing Originality. The party to any action or proceeding under this chapter who alleges rights under this chapter in a design shall have the burden of establishing the design's originality whenever the opposing party introduces an earlier work which is identical to such design, or so similar as to make prima facie showing that such design was copied from such work. (g) Reproduction for Teaching or Analysis. It is not an infringement of the exclusive rights of a design owner for a person to reproduce the design in a useful article or in any other form solely for the purpose of teaching, analyzing, or evaluating the appearance, concepts, or techniques embodied in the design, or the function of the useful article embodying the design. Section 1310. Application for registration (a) Time Limit for Application for Registration. Protection under this chapter shall be lost if application for registration of the design is not made within 2 years after the date on which the design is first made public. (b) When Design is Made Public. A design is made public when an existing useful article embodying the design is anywhere publicly exhibited, publicly distributed, or offered for sale or sold to the public by the owner of the design or with the owner's consent. (c) Application by Owner of Design. Application for registration may be made by the owner of the design. (d) Contents of Application. The application for registration shall be made to the Administrator and shall state- (1) the name and address of the designer or designers of the design; (2) the name and address of the owner if different from the designer; (3) the specific name of the useful article embodying the design; (4) the date, if any, that the design was first made public, if such date was earlier than the date of the application; (5) affirmation that the design has been fixed in a useful article; and (6) such other information as may be required by the Administrator. The application for registration may include a description setting forth the salient features of the design, but the absence of such a description shall not prevent registration under this chapter. (e) Sworn Statement. The application for registration shall be accompanied by a statement under oath by the applicant or the applicant's duly authorized agent or representative, setting forth, to the best of the applicant's knowledge and belief- (1) that the design is original and was created by the designer or designers named in the application; (2) that the design has not previously been registered on behalf of the applicant or the applicant's predecessor in title; and (3) that the applicant is the person entitled to protection and to registration under this chapter. If the design has been made public with the design notice prescribed in section 1306, the statement shall also describe the exact form and position of the design notice. (f) Effect of Errors. (1) Error in any statement or assertion as to the utility of the useful article named in the application under this section, the design of which is sought to be registered, shall not affect the protection secured under this chapter. (2) Errors in omitting a joint designer or in naming an alleged joint designer shall not affect the validity of the registration, or the actual ownership or the protection of the design, unless it is shown that the error occurred with deceptive intent. (g) Design Made in Scope of Employment. In a case in which the design was made within the regular scope of the designer's employment and individual authorship of the design is difficult or impossible to ascribe and the application so states, the name and address of the employer for whom the design was made may be stated instead of that of the individual designer. (h) Pictorial Representation of Design. The application for registration shall be accompanied by two copies of a drawing or other pictorial representation of the useful article embodying the design, having one or more views, adequate to show the design, in a form and style suitable for reproduction, which shall be deemed a part of the application. (i) Design in More Than One Useful Article. If the distinguishing elements of a design are in substantially the same form in different useful articles, the design shall be protected as to all such useful articles when protected as to one of them, but not more than one registration shall be required for the design. (j) Application for More Than One Design. More than one design may be included in the same application under such conditions as may be prescribed by the Administrator. For each design included in an application the fee prescribed for a single design shall be paid. Section 1311. Benefit of earlier filing date in foreign country An application for registration of a design filed in the United States by any person who has, or whose legal representative or predecessor or successor in title has, previously filed an application for registration of the same design in a foreign country which extends to designs of owners who are citizens of the United States, or to applications filed under this chapter, similar protection to that provided under this chapter shall have that same effect as if filed in the United States on the date on which the application was first filed in such foreign country, if the application in the United States is filed within 6 months after the earliest date on which any such foreign application was filed. Section 1312. Oaths and acknowledgments (a) In General. Oaths and acknowledgments required by this chapter- (1) may be made- (A) before any person in the United States authorized by law to administer oaths; or (B) when made in a foreign country, before any diplomatic or consular officer of the United States authorized to administer oaths, or before any official authorized to administer oaths in the foreign country concerned, whose authority shall be proved by a certificate of a diplomatic or consular officer of the United States; and (2) shall be valid if they comply with the laws of the State or country where made. (b) Written Declaration in Lieu of Oath. (1) The Administrator may by rule prescribe that any document which is to be filed under this chapter in the Office of the Administrator and which is required by any law, rule, or other regulation to be under oath, may be subscribed to by a written declaration in such form as the Administrator may prescribe, and such declaration shall be in lieu of the oath otherwise required. (2) Whenever a written declaration under paragraph (1) is used, the document containing the declaration shall state that willful false statements are punishable by fine or imprisonment, or both, pursuant to section 1001 of title 18, and may jeopardize the validity of the application or document or a registration resulting therefrom. Section 1313. Examination of application and issue or refusal of registration [4] (a) Determination of Registrability of Design; Registration. Upon the filing of an application for registration in proper form under section 1310, and upon payment of the fee prescribed under section 1316, the Administrator shall determine whether or not the application relates to a design which on its face appears to be subject to protection under this chapter, and, if so, the Register shall register the design. Registration under this subsection shall be announced by publication. The date of registration shall be the date of publication. (b) Refusal To Register; Reconsideration. If, in the judgment of the Administrator, the application for registration relates to a design which on its face is not subject to protection under this chapter, the Administrator shall send to the applicant a notice of refusal to register and the grounds for the refusal. Within 3 months after the date on which the notice of refusal is sent, the applicant may, by written request, seek reconsideration of the application. After consideration of such a request, the Administrator shall either register the design or send to the applicant a notice of final refusal to register. (c) Application To Cancel Registration. Any person who believes he or she is or will be damaged by a registration under this chapter may, upon payment of the prescribed fee, apply to the Administrator at any time to cancel the registration on the ground that the design is not subject to protection under this chapter, stating the reasons for the request. Upon receipt of an application for cancellation, the Administrator shall send to the owner of the design, as shown in the records of the Office of the Administrator, a notice of the application, and the owner shall have a period of 3 months after the date on which such notice is mailed in which to present arguments to the Administrator for support of the validity of the registration. The Administrator shall also have the authority to establish, by regulation, conditions under which the opposing parties may appear and be heard in support of their arguments. If, after the periods provided for the presentation of arguments have expired, the Administrator determines that the applicant for cancellation has established that the design is not subject to protection under this chapter, the Administrator shall order the registration stricken from the record. Cancellation under this subsection shall be announced by publication, and notice of the Administrator's final determination with respect to any application for cancellation shall be sent to the applicant and to the owner of record. Costs of the cancellation procedure under this subsection shall be borne by the nonprevailing party or parties, and the Administrator shall have the authority to assess and collect such costs. Section 1314. Certification of registration Certificates of registration shall be issued in the name of the United States under the seal of the Office of the Administrator and shall be recorded in the official records of the Office. The certificate shall state the name of the useful article, the date of filing of the application, the date of registration, and the date the design was made public, if earlier than the date of filing of the application, and shall contain a reproduction of the drawing or other pictorial representation of the design. If a description of the salient features of the design appears in the application, the description shall also appear in the certificate. A certificate of registration shall be admitted in any court as prima facie evidence of the facts stated in the certificate. Section 1315. Publication of announcements and indexes (a) Publications of the Administrator. The Administrator shall publish lists and indexes of registered designs and cancellations of designs and may also publish the drawings or other pictorial representations of registered designs for sale or other distribution. (b) File of Representatives of Registered Designs. The Administrator shall establish and maintain a file of the drawings or other pictorial representations of registered designs. The file shall be available for use by the public under such conditions as the Administrator may prescribe. Section 1316. Fees The Administrator shall by regulation set reasonable fees for the filing of applications to register designs under this chapter and for other services relating to the administration of this chapter, taking into consideration the cost of providing these services and the benefit of a public record. Section 1317. Regulations The Administrator may establish regulations for the administration of this chapter. Section 1318. Copies of records Upon payment of the prescribed fee, any person may obtain a certified copy of any official record of the Office of the Administrator that relates to this chapter. That copy shall be admissible in evidence with the same effect as the original. Section 1319. Correction of errors in certificates The Administrator may, by a certificate of correction under seal, correct any error in a registration incurred through the fault of the Office, or, upon payment of the required fee, any error of a clerical or typographical nature occurring in good faith but not through the fault of the Office. Such registration, together with the certificate, shall thereafter have the same effect as if it had been originally issued in such corrected form. Section 1320. Ownership and transfer [5] (a) Property Right in Design. The property right in a design subject to protection under this chapter shall vest in the designer, the legal representatives of a deceased designer or of one under legal incapacity, the employer for whom the designer created the design in the case of a design made within the regular scope of the designer's employment, or a person to whom the rights of the designer or of such employer have been transferred. The person in whom the property right is vested shall be considered the owner of the design. (b) Transfer of Property Right. The property right in a registered design, or a design for which an application for registration has been or may be filed, may be assigned, granted, conveyed, or mortgaged by an instrument in writing, signed by the owner, or may be bequeathed by will. (c) Oath or Acknowledgment of Transfer. An oath or acknowledgment under section 1312 shall be prima facie evidence of the execution of an assignment, grant, conveyance, or mortgage under subsection (b). (d) Recordation of Transfer. An assignment, grant, conveyance, or mortgage under subsection (b) shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, unless it is recorded in the Office of the Administrator within 3 months after its date of execution or before the date of such subsequent purchase or mortgage. Section 1321. Remedy for infringement (a) In General. The owner of a design is entitled, after issuance of a certificate of registration of the design under this chapter, to institute an action for any infringement of the design. (b) Review of Refusal To Register. (1) Subject to paragraph (2), the owner of a design may seek judicial review of a final refusal of the Administrator to register the design under this chapter by bringing a civil action, and may in the same action, if the court adjudges the design subject to protection under this chapter, enforce the rights in that design under this chapter. (2) The owner of a design may seek judicial review under this section if- (A) the owner has previously duly filed and prosecuted to final refusal an application in proper form for registration of the design; (B) the owner causes a copy of the complaint in the action to be delivered to the Administrator within 10 days after the commencement of the action; and (C) the defendant has committed acts in respect to the design which would constitute infringement with respect to a design protected under this chapter. (c) Administrator as Party to Action. The Administrator may, at the Administrator's option, become a party to the action with respect to the issue of registrability of the design claim by entering an appearance within 60 days after being served with the complaint, but the failure of the Administrator to become a party shall not deprive the court of jurisdiction to determine that issue. (d) Use of Arbitration To Resolve Dispute. The parties to an infringement dispute under this chapter, within such time as may be specified by the Administrator by regulation, may determine the dispute, or any aspect of the dispute, by arbitration. Arbitration shall be governed by title 9. The parties shall give notice of any arbitration award to the Administrator, and such award shall, as between the parties to the arbitration, be dispositive of the issues to which it relates. The arbitration award shall be unenforceable until such notice is given. Nothing in this subsection shall preclude the Administrator from determining whether a design is subject to registration in a cancellation proceeding under section 1313(c). Section 1322. Injunctions (a) In General. A court having jurisdiction over actions under this chapter may grant injunctions in accordance with the principles of equity to prevent infringement of a design under this chapter, including, in its discretion, prompt relief by temporary restraining orders and preliminary injunctions. (b) Damages for Injunctive Relief Wrongfully Obtained. A seller or distributor who suffers damage by reason of injunctive relief wrongfully obtained under this section has a cause of action against the applicant for such injunctive relief and may recover such relief as may be appropriate, including damages for lost profits, cost of materials, loss of good will, and punitive damages in instances where the injunctive relief was sought in bad faith, and, unless the court finds extenuating circumstances, reasonable attorney's fees. Section 1323. Recovery for infringement (a) Damages. Upon a finding for the claimant in an action for infringement under this chapter, the court shall award the claimant damages adequate to compensate for the infringement. In addition, the court may increase the damages to such amount, not exceeding $50,000 or $1 per copy, whichever is greater, as the court determines to be just. The damages awarded shall constitute compensation and not a penalty. The court may receive expert testimony as an aid to the determination of damages. (b) Infringer's Profits. As an alternative to the remedies provided in subsection (a), the court may award the claimant the infringer's profits resulting from the sale of the copies if the court finds that the infringer's sales are reasonably related to the use of the claimant's design. In such a case, the claimant shall be required to prove only the amount of the infringer's sales and the infringer shall be required to prove its expenses against such sales. (c) Statute of Limitations. No recovery under subsection (a) or (b) shall be had for any infringement committed more than 3 years before the date on which the complaint is filed. (d) Attorney's Fees. In an action for infringement under this chapter, the court may award reasonable attorney's fees to the prevailing party. (e) Disposition of Infringing and Other Articles. The court may order that all infringing articles, and any plates, molds, patterns, models, or other means specifically adapted for making the articles, be delivered up for destruction or other disposition as the court may direct. Section 1324. Power of court over registration In any action involving the protection of a design under this chapter, the court, when appropriate, may order registration of a design under this chapter or the cancellation of such a registration. Any such order shall be certified by the court to the Administrator, who shall make an appropriate entry upon the record. Section 1325. Liability for action on registration fraudulently obtained Any person who brings an action for infringement knowing that registration of the design was obtained by a false or fraudulent representation materially affecting the rights under this chapter, shall be liable in the sum of $10,000, or such part of that amount as the court may determine. That amount shall be to compensate the defendant and shall be charged against the plaintiff and paid to the defendant, in addition to such costs and attorney's fees of the defendant as may be assessed by the court. Section 1326. Penalty for false marking (a) In General. Whoever, for the purpose of deceiving the public, marks upon, applies to, or uses in advertising in connection with an article made, used, distributed, or sold, a design which is not protected under this chapter, a design notice specified in section 1306, or any other words or symbols importing that the design is protected under this chapter, knowing that the design is not so protected, shall pay a civil fine of not more than $500 for each such offense. (b) Suit by Private Persons. Any person may sue for the penalty established by subsection (a), in which event one-half of the penalty shall be awarded to the person suing and the remainder shall be awarded to the United States. Section 1327. Penalty for false representation Whoever knowingly makes a false representation materially affecting the rights obtainable under this chapter for the purpose of obtaining registration of a design under this chapter shall pay a penalty of not less than $500 and not more than $1,000, and any rights or privileges that individual may have in the design under this chapter shall be forfeited. Section 1328. Enforcement by Treasury and Postal Service (a) Regulations. The Secretary of the Treasury and the United States Postal Service shall separately or jointly issue regulations for the enforcement of the rights set forth in section 1308 with respect to importation. Such regulations may require, as a condition for the exclusion of articles from the United States, that the person seeking exclusion take any one or more of the following actions: (1) Obtain a court order enjoining, or an order of the International Trade Commission under section 337 of the Tariff Act of 1930 excluding, importation of the articles. (2) Furnish proof that the design involved is protected under this chapter and that the importation of the articles would infringe the rights in the design under this chapter. (3) Post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified. (b) Seizure and Forfeiture. Articles imported in violation of the rights set forth in section 1308 are subject to seizure and forfeiture in the same manner as property imported in violation of the customs laws. Any such forfeited articles shall be destroyed as directed by the Secretary of the Treasury or the court, as the case may be, except that the articles may be returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury that the importer had no reasonable grounds for believing that his or her acts constituted a violation of the law. Section 1329. Relation to design patent law The issuance of a design patent under title 35, United States Code, for an original design for an article of manufacture shall terminate any protection of the original design under this chapter. Section 1330. Common law and other rights unaffected Nothing in this chapter shall annul or limit- (1) common law or other rights or remedies, if any, available to or held by any person with respect to a design which has not been registered under this chapter; or (2) any right under the trademark laws or any right protected against unfair competition. Section 1331. Administrator; Office of the Administrator In this chapter, the "Administrator" is the Register of Copyrights, and the "Office of the Administrator" and the "Office" refer to the Copyright Office of the Library of Congress. Section 1332. No retroactive effect Protection under this chapter shall not be available for any design that has been made public under section 1310(b) before the effective date of this chapter. ------------------- Chapter 13 Endnotes 1 In 1998, the Vessel Hull Design Protection Act added chapter 13, entitled "Protection of Original Designs," to title 17. Pub. L. No. 105-304, 112 Stat. 2860, 2905. The Vessel Hull Design Protection Act is title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860. 2 The Satellite Home Viewer Improvement Act of 1999 amended section 1301(b)(3) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593. 3 In 1999, section 1302(5) was amended to substitute "2 years" in lieu of "1 year." Pub. L. No. 106-44, 113 Stat. 221, 222. 4 The Satellite Home Viewer Improvement Act of 1999 amended section 1313(c) by adding at the end thereof the last sentence, which begins "Costs of the cancellation procedure." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-594. 5 In 1999, section 1320 was amended to change the spelling in the heading of subsection (c) from "acknowledgement" to "acknowledgment." Pub. L. No. 106-44, 113 Stat. 221, 222. ------------------------------------------------------------------------ Appendix I. Transitional and Supplementary Provisions of the Copyright Act of 1976 [1] Sec. 102. This Act becomes effective on January 1, 1978, except as otherwise expressly provided by this Act, including provisions of the first section of this Act. The provisions of sections 118, 304(b), and chapter 8 of title 17, as amended by the first section of this Act, take effect upon enactment of this Act. Sec. 103. This Act does not provide copyright protection for any work that goes into the public domain before January 1, 1978. The exclusive rights, as provided by section 106 of title 17 as amended by the first section of this Act, to reproduce a work in phonorecords and to distribute phonorecords of the work, do not extend to any nondramatic musical work copyrighted before July 1, 1909. Sec. 104. All proclamations issued by the President under section 1(e) or 9(b) of title 17 as it existed on December 31, 1977, or under previous copyright statutes of the United States, shall continue in force until terminated, suspended, or revised by the President. Sec. 105. (a)(1) Section 505 of title 44 is amended to read as follows: "Sec. 505. Sale of duplicate plates "The Public Printer shall sell, under regulations of the Joint Committee on Printing to persons who may apply, additional or duplicate stereotype or electrotype plates from which a Government publication is printed, at a price not to exceed the cost of composition, the metal, and making to the Government, plus 10 per centum, and the full amount of the price shall be paid when the order is filed." (2) The item relating to section 505 in the sectional analysis at the beginning of chapter 5 of title 44, is amended to read as follows: "505. Sale of duplicate plates.". (b) Section 2113 of title 44 is amended to read as follows: [To assist the reader, section 2113 of title 44, now designated section 2117, appears in part VII of the Appendix, *infra*, as currently amended.] (c) In section 1498(b) of title 28, the phrase "section 101(b) of title 17" is amended to read "section 504(c) of title 17". (d) Section 543(a)(4) of the Internal Revenue Code of 1954, as amended, is amended by striking out "(other than by reason of section 2 or 6 thereof)". (e) Section 3202(a) of title 39 is amended by striking out clause (5). Section 3206 of title 39 is amended by deleting the words "subsections (b) and (c)" and inserting "subsection (b)" in subsection (a), and by deleting subsection (c). Section 3206(d) is renumbered (c). (f) Subsection (a) of section 290(e) of title 15 is amended by deleting the phrase "section 8" and inserting in lieu thereof the phrase "section 105". [2] (g) Section 131 of title 2 is amended by deleting the phrase "deposit to secure copyright," and inserting in lieu thereof the phrase "acquisition of material under the copyright law,". Sec. 106. In any case where, before January 1, 1978, a person has lawfully made parts of instruments serving to reproduce mechanically a copyrighted work under the compulsory license provisions of section 1(e) of title 17 as it existed on December 31, 1977, such person may continue to make and distribute such parts embodying the same mechanical reproduction without obtaining a new compulsory license under the terms of section 115 of title 17 as amended by the first section of this Act. However, such parts made on or after January 1, 1978, constitute phonorecords and are otherwise subject to the provisions of said section 115. Sec. 107. In the case of any work in which an ad interim copyright is subsisting or is capable of being secured on December 31, 1977, under section 22 of title 17 as it existed on that date, copyright protection is hereby extended to endure for the term or terms provided by section 304 of title 17 as amended by the first section of this Act. Sec. 108. The notice provisions of sections 401 through 403 of title 17 as amended by the first section of this Act apply to all copies or phonorecords publicly distributed on or after January 1, 1978. However, in the case of a work published before January 1, 1978, compliance with the notice provisions of title 17 either as it existed on December 31, 1977, or as amended by the first section of this Act, is adequate with respect to copies publicly distributed after December 31, 1977. Sec. 109. The registration of claims to copyright for which the required deposit, application, and fee were received in the Copyright Office before January 1, 1978, and the recordation of assignments of copyright or other instruments received in the Copyright Office before January 1, 1978, shall be made in accordance with title 17 as it existed on December 31, 1977. Sec. 110. The demand and penalty provisions of section 14 of title 17 as it existed on December 31, 1977, apply to any work in which copyright has been secured by publication with notice of copyright on or before that date, but any deposit and registration made after that date in response to a demand under that section shall be made in accordance with the provisions of title 17 as amended by the first section of this Act. Sec. 111. Section 2318 of title 18 of the United States Code is amended to read as follows: [To assist the reader, section 2318 of title 18, as currently amended, along with related criminal provisions, appears in part VII of the Appendix, *infra*.] Sec. 112. All causes of action that arose under title 17 before January 1, 1978, shall be governed by title 17 as it existed when the cause of action arose. Sec. 113. (a) The Librarian of Congress (hereinafter referred to as the "Librarian") shall establish and maintain in the Library of Congress a library to be known as the American Television and Radio Archives (hereinafter referred to as the "Archives"). The purpose of the Archives shall be to preserve a permanent record of the television and radio programs which are the heritage of the people of the United States and to provide access to such programs to historians and scholars without encouraging or causing copyright infringement. (1) The Librarian, after consultation with interested organizations and individuals, shall determine and place in the Archives such copies and phonorecords of television and radio programs transmitted to the public in the United States and in other countries which are of present or potential public or cultural interest, historical significance, cognitive value, or otherwise worthy of preservation, including copies and phonorecords of published and unpublished transmission programs- (A) acquired in accordance with sections 407 and 408 of title 17 as amended by the first section of this Act; and (B) transferred from the existing collections of the Library of Congress; and (C) given to or exchanged with the Archives by other libraries, archives, organizations, and individuals; and (D) purchased from the owner thereof. (2) The Librarian shall maintain and publish appropriate catalogs and indexes of the collections of the Archives, and shall make such collections available for study and research under the conditions prescribed under this section. (b) Notwithstanding the provisions of section 106 of title 17 as amended by the first section of this Act, the Librarian is authorized with respect to a transmission program which consists of a regularly scheduled newscast or on-the-spot coverage of news events and, under standards and conditions that the Librarian shall prescribe by regulation- (1) to reproduce a fixation of such a program, in the same or another tangible form, for the purposes of preservation or security or for distribution under the conditions of clause (3) of this subsection; and (2) to compile, without abridgment or any other editing, portions of such fixations according to subject matter, and to reproduce such compilations for the purpose of clause (1) of this subsection; and (3) to distribute a reproduction made under clause (1) or (2) of this subsection- (A) by loan to a person engaged in research; and (B) for deposit in a library or archives which meets the requirements of section 108(a) of title 17 as amended by the first section of this Act, in either case for use only in research and not for further reproduction or performance. (c) The Librarian or any employee of the Library who is acting under the authority of this section shall not be liable in any action for copyright infringement committed by any other person unless the Librarian or such employee knowingly participated in the act of infringement committed by such person. Nothing in this section shall be construed to excuse or limit liability under title 17 as amended by the first section of this Act for any act not authorized by that title or this section, or for any act performed by a person not authorized to act under that title or this section. (d) This section may be cited as the "American Television and Radio Archives Act". Sec. 114. There are hereby authorized to be appropriated such funds as may be necessary to carry out the purposes of this Act. Sec. 115. If any provision of title 17, as amended by the first section of this Act, is declared unconstitutional, the validity of the remainder of this title is not affected. ------------------- Appendix I Endnotes 1 Part I of the Appendix contains the Transitional and Supplementary Provisions of the Copyright Act of 1976, Pub. L. No. 94-533, 90 Stat. 2541, that do not amend title 17 of the *United States Code.* 2 The correct reference is to "290e," not "290(e)." ------------------------------------------------------------------------ Appendix II. Berne Convention Implementation Act of 1988 [1] Sec. 2. Declarations. The Congress makes the following declarations: (1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto (hereafter in this Act referred to as the "Berne Convention") are not self-executing under the Constitution and laws of the United States. (2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law. (3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose. Sec. 3. Construction of the Berne Convention. (a) Relationship With Domestic Law. The provisions of the Berne Convention- (1) shall be given effect under title 17, as amended by this Act, and any other relevant provision of Federal or State law, including the common law; and (2) shall not be enforceable in any action brought pursuant to the provisions of the Berne Convention itself. (b) Certain Rights Not Affected. The provisions of the Berne Convention, the adherence of the United States thereto, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work, whether claimed under Federal, State, or the common law- (1) to claim authorship of the work; or (2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the work, that would prejudice the author's honor or reputation. Sec. 12. Works in the public domain. Title 17, United States Code, as amended by this Act, does not provide copyright protection for any work that is in the public domain in the United States. Sec. 13. Effective date: effect on pending cases. (a) Effective Date. This Act and the amendments made by this Act take effect on the date on which the Berne Convention (as defined in section 101 of title 17, United States Code) enters into force with respect to the United States. [2] (b) Effect on Pending Cases. Any cause of action arising under title 17, United States Code, before the effective date of this Act shall be governed by the provisions of such title as in effect when the cause of action arose. -------------------- Appendix II Endnotes 1 Part II of the Appendix consists of provisions of the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, that do not amend title 17 of the *United States Code.* 2 The Berne Convention entered into force in the United States on March 1, 1989. ------------------------------------------------------------------------ Appendix III. Uruguay Round Agreements Act [1] Sec. 2. Definitions. For purposes of this Act: (1) GATT 1947; GATT 1994. (A) GATT 1947. The term "GATT 1947" means the General Agreement on Tariffs and Trade, dated October 30, 1947, annexed to the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended, or modified by the terms of legal instruments which have entered into force before the date of entry into force of the WTO Agreement. (B) GATT 1994. The term "GATT 1994" means the General Agreement on Tariffs and Trade annexed to the WTO Agreement. (2) HTS. The term "HTS" means the Harmonized Tariff Schedule of the United States. (3)International trade commission. The term "International Trade Commission" means the United States International Trade Commission. (4) Multilateral trade agreement. The term "multilateral trade agreement" means an agreement described in section 101(d) of this Act (other than an agreement described in paragraph (17) or (18) of such section). (5) Schedule XX. The term "Schedule XX" means Schedule XX - United States of America annexed to the Marrakesh Protocol to the GATT 1994. (6) Trade representative. The term "Trade Representative" means the United States Trade Representative. (7) Uruguay round agreements. The term "Uruguay Round Agreements" means the agreements approved by the Congress under section 101(a)(1). (8) World trade organization and WTO. The terms "World Trade Organization" and "WTO" mean the organization established pursuant to the WTO Agreement. (9) WTO agreement. The term "WTO Agreement" means the Agreement Establishing the World Trade Organization entered into on April 15, 1994. (10) WTO member and WTO member country. The terms "WTO member" and "WTO member country" mean a state, or separate customs territory (within the meaning of Article XII of the WTO Agreement), with respect to which the United States applies the WTO Agreement. Sec. 101. Approval and entry into force of the Uruguay Round Agreements. (a) Approval of Agreements and Statement of Administrative Action. Pursuant to section 1103 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2903) and section 151 of the Trade Act of 1974 (19 U.S.C. 2191), the Congress approves- (1) the trade agreements described in subsection (d) resulting from the Uruguay Round of multilateral trade negotiations under the auspices of the General Agreement on Tariffs and Trade, entered into on April 15, 1994, and submitted to the Congress on September 27, 1994; and (2) the statement of administrative action proposed to implement the agreements that was submitted to the Congress on September 27, 1994. (b) Entry Into Force. At such time as the President determines that a sufficient number of foreign countries are accepting the obligations of the Uruguay Round Agreements, in accordance with article XIV of the WTO Agreement, to ensure the effective operation of, and adequate benefits for the United States under, those Agreements, the President may accept the Uruguay Round Agreements and implement article VIII of the WTO Agreement. (c) Authorization of Appropriations. There are authorized to be appropriated annually such sums as may be necessary for the payment by the United States of its share of the expenses of the WTO. (d) Trade Agreements to Which This Act Applies. Subsection (a) applies to the WTO Agreement and to the following agreements annexed to that Agreement: (1) The General Agreement on Tariffs and Trade 1994. (2) The Agreement on Agriculture. (3) The Agreement on the Application of Sanitary and Phytosanitary Measures. (4) The Agreement on Textiles and Clothing. (5) The Agreement on Technical Barriers to Trade. (6) The Agreement on Trade-Related Investment Measures. (7) The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994. (8) The Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994. (9) The Agreement on Preshipment Inspection. (10) The Agreement on Rules of Origin. (11) The Agreement on Import Licensing Procedures. (12) The Agreement on Subsidies and Countervailing Measures. (13) The Agreement on Safeguards. (14) The General Agreement on Trade in Services. (15) The Agreement on Trade-Related Aspects of Intellectual Property Rights. (16) The Understanding on Rules and Procedures Governing the Settlement of Disputes. (17) The Agreement on Government Procurement. (18) The International Bovine Meat Agreement. Sec. 102. Relationship of the agreements to United States law and state law. (a) Relationship of Agreements to United States Law. (1) United states law to prevail in conflict. No provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect. (2) Construction. Nothing in this Act shall be construed (A) to amend or modify any law of the United States, including any law relating to- (i) the protection of human, animal, or plant life or health, (ii) the protection of the environment, or (iii) worker safety, or (B) to limit any authority conferred under any law of the United States, including section 301 of the Trade Act of 1974, unless specifically provided for in this Act. (b) Relationship of Agreements to State Law.- (1) Federal-State Consultation. (A) In General. Upon the enactment of this Act, the President shall, through the intergovernmental policy advisory committees on trade established under section 306(c)(2)(A) of the Trade and Tariff Act of 1984 (19 U.S.C. 2114c(2)(A)), consult with the States for the purpose of achieving conformity of State laws and practices with the Uruguay Round Agreements. (B) Federal-State Consultation Process. The Trade Representative shall establish within the Office of the United States Trade Representative a Federal-State consultation process for addressing issues relating to the Uruguay Round Agreements that directly relate to, or will potentially have a direct effect on, the States. The Federal-State consultation process shall include procedures under which- (i) the States will be informed on a continuing basis of matters under the Uruguay Round Agreements that directly relate to, or will potentially have a direct impact on, the States; (ii) the States will be provided an opportunity to submit, on a continuing basis, to the Trade Representative information and advice with respect to matters referred to in clause (i); and (iii) the Trade Representative will take into account the information and advice received from the States under clause (ii) when formulating United States positions regarding matters referred to in clause (i). The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Federal-State consultation process established by this paragraph. (C) Federal-State Cooperation in WTO Dispute Settlement. (i) When a WTO member requests consultations with the United States under Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes referred to in section 101(d)(16) (hereafter in this subsection referred to as the "Dispute Settlement Understanding") concerning whether the law of a State is inconsistent with the obligations undertaken by the United States in any of the Uruguay Round Agreements, the Trade Representative shall notify the Governor of the State or the Governor's designee, and the chief legal officer of the jurisdiction whose law is the subject of the consultations, as soon as possible after the request is received, but in no event later than 7 days thereafter. (ii) Not later than 30 days after receiving such a request for consultations, the Trade Representative shall consult with representatives of the State concerned regarding the matter. If the consultations involve the laws of a large number of States, the Trade Representative may consult with an appropriate group of representatives of the States concerned, as determined by those States. (iii) The Trade Representative shall make every effort to ensure that the State concerned is involved in the development of the position of the United States at each stage of the consultations and each subsequent stage of dispute settlement proceedings regarding the matter. In particular, the Trade Representative shall- (I) notify the State concerned not later than 7 days after a WTO member requests the establishment of a dispute settlement panel or gives notice of the WTO member's decision to appeal a report by a dispute settlement panel regarding the matter; and (II) provide the State concerned with the opportunity to advise and assist the Trade Representative in the preparation of factual information and argumentation for any written or oral presentations by the United States in consultations or in proceedings of a panel or the Appellate Body regarding the matter. (iv) If a dispute settlement panel or the Appellate Body finds that the law of a State is inconsistent with any of the Uruguay Round Agreements, the Trade Representative shall consult with the State concerned in an effort to develop a mutually agreeable response to the report of the panel or the Appellate Body and shall make every effort to ensure that the State concerned is involved in the development of the United States position regarding the response. (D) Notice to States Regarding Consultations on Foreign Subcentral Government Laws. (i) Subject to clause (ii), the Trade Representative shall, at least 30 days before making a request for consultations under Article 4 of the Dispute Settlement Understanding regarding a subcentral government measure of another WTO member, notify, and solicit the views of, appropriate representatives of each State regarding the matter. (ii) In exigent circumstances clause (i) shall not apply, in which case the Trade Representative shall notify the appropriate representatives of each State not later than 3 days after making the request for consultations referred to in clause (i). (2) Legal Challenge. (A) In General. No State law, or the application of such a State law, may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with any of the Uruguay Round Agreements, except in an action brought by the United States for the purpose of declaring such law or application invalid. (B) Procedures Governing Action. In any action described in subparagraph (A) that is brought by the United States against a State or any subdivision thereof (i) a report of a dispute settlement panel or the Appellate Body convened under the Dispute Settlement Understanding regarding the State law, or the law of any political subdivision thereof, shall not be considered as binding or otherwise accorded deference; (ii) the United States shall have the burden of proving that the law that is the subject of the action, or the application of that law, is inconsistent with the agreement in question; (iii) any State whose interests may be impaired or impeded in the action shall have the unconditional right to intervene in the action as a party, and the United States shall be entitled to amend its complaint to include a claim or cross-claim concerning the law of a State that so intervenes; and (iv) any State law that is declared invalid shall not be deemed to have been invalid in its application during any period before the court's judgment becomes final and all timely appeals, including discretionary review, of such judgment are exhausted. (C) Reports to Congressional Committees. At least 30 days before the United States brings an action described in subparagraph (A), the Trade Representative shall provide a report to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate- (i) describing the proposed action; (ii) describing efforts by the Trade Representative to resolve the matter with the State concerned by other means; and (iii) if the State law was the subject of consultations under the Dispute Settlement Understanding, certifying that the Trade Representative has substantially complied with the requirements of paragraph (1)(C) in connection with the matter. Following the submission of the report, and before the action is brought, the Trade Representative shall consult with the committees referred to in the preceding sentence concerning the matter. (3) Definition of State Law. For purposes of this subsection- (A) the term "State law" includes- (i) any law of a political subdivision of a State; and (ii) any State law regulating or taxing the business of insurance; and (B) the terms "dispute settlement panel" and "Appellate Body" have the meanings given those terms in section 121. (c) Effect of Agreement With Respect to Private Remedies. (1) Limitations. No person other than the United States- (A) shall have any cause of action or defense under any of the Uruguay Round Agreements or by virtue of congressional approval of such an agreement, or (B) may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of the United States, any State, or any political subdivision of a State on the ground that such action or inaction is inconsistent with such agreement. (2) Intent of congress. It is the intention of the Congress through paragraph (1) to occupy the field with respect to any cause of action or defense under or in connection with any of the Uruguay Round Agreements, including by precluding any person other than the United States from bringing any action against any State or political subdivision thereof or raising any defense to the application of State law under or in connection with any of the Uruguay Round Agreements- (A) on the basis of a judgment obtained by the United States in an action brought under any such agreement; or (B) on any other basis. (d) Statement of Administrative Action. The statement of administrative action approved by the Congress under section 101(a) shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or application. Sec. 103. Implementing actions in anticipation of entry into force; regulations. (a) Implementing Actions. After the date of the enactment of this Act- (1) the President may proclaim such actions, and (2) other appropriate officers of the United States Government may issue such regulations, as may be necessary to ensure that any provision of this Act, or amendment made by this Act, that takes effect on the date any of the Uruguay Round Agreements enters into force with respect to the United States is appropriately implemented on such date. Such proclamation or regulation may not have an effective date earlier than the date of entry into force with respect to the United States of the agreement to which the proclamation or regulation relates. (b) Regulations. Any interim regulation necessary or appropriate to carry out any action proposed in the statement of administrative action approved under section 101(a) to implement an agreement described in section 101(d) (7), (12), or (13) shall be issued not later than 1 year after the date on which the agreement enters into force with respect to the United States. -------------------- Appendix III Endnote 1 Part III of the Appendix consists of provisions of the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, that do not amend title 17 of the *United States Code.* ------------------------------------------------------------------------ Appendix IV. GATT/Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, Part II: [1] Section 6: Layout-Designs (Topographies) of Integrated Circuits Article 35 Relation to IPIC Treaty Members agree to provide protection to the layout-designs (topographies) of integrated circuits (hereinafter referred to as "layout-designs") in accordance with Articles 2-7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions. Article 36 Scope of the Protection [2] Subject to the provisions of paragraph 1 of Article 37 below, Members shall consider unlawful the following acts if performed without the authorization of the right holder: importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only insofar as it continues to contain an unlawfully reproduced layout-design. Article 37 Acts not Requiring the Authorization of the Right Holder 1. Notwithstanding Article 36 above, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, he may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated license in respect of such a layout-design. 2. The conditions set out in sub-paragraphs (a)-(k) of Article 31 above shall apply *mutatis mutandis* in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder. Article 38 Term of Protection 1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of ten years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs. 2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than ten years from the date of the first commercial exploitation wherever in the world it occurs. 3. Notwithstanding paragraphs 1 and 2 above, a Member may provide that protection shall lapse fifteen years after the creation of the layout- design. -------------------- Appendix IV Endnotes 1 For an explanation of the relationship of this section of TRIPs to title 17 of the *United States Code*, see the second paragraph of endnote 8, chapter 9, *supra.* 2 The term "right holder" in this section shall be understood as having the same meaning as the term "holder of the right" in the Treaty on Intellectual Property in Respect of Integrated Circuits, done at Washington, D.C., on May 26, 1989. ------------------------------------------------------------------------ Appendix V. Additional Provisions of the Digital Millennium Copyright Act [1] Section 1. Short Title. This Act may be cited as the "Digital Millennium Copyright Act". Title I-WIPO Treaties Implementation SEC. 101. SHORT TITLE. This title may be cited as the "WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998". * * * * * * * SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT. (a) Evaluation by the Register of Copyrights and the Assistant Secretary for Communications and Information. The Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall jointly evaluate- (1) the effects of the amendments made by this title and the development of electronic commerce and associated technology on the operation of sections 109 and 117 of title 17, United States Code; and (2) the relationship between existing and emergent technology and the operation of sections 109 and 117 of title 17, United States Code. (b) Report to Congress. The Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall, not later than 24 months after the date of the enactment of this Act, submit to the Congress a joint report on the evaluation conducted under subsection (a), including any legislative recommendations the Register and the Assistant Secretary may have. SEC. 105. EFFECTIVE DATE. (a) In General. Except as otherwise provided in this title, this title and the amendments made by this title shall take effect on the date of the enactment of this Act. (b) Amendments Relating to Certain International Agreements. (1) The following shall take effect upon the entry into force of the WIPO Copyright Treaty with respect to the United States: (A) Paragraph (5) of the definition of "international agreement" contained in section 101 of title 17, United States Code, as amended by section 102(a)(4) of this Act. (B) The amendment made by section 102(a)(6) of this Act. (C) Subparagraph (C) of section 104A(h)(1) of title 17, United States Code, as amended by section 102(c)(1) of this Act. (D) Subparagraph (C) of section 104A(h)(3) of title 17, United States Code, as amended by section 102(c)(2) of this Act. (2) The following shall take effect upon the entry into force of the WIPO Performances and Phonograms Treaty with respect to the United States: (A) Paragraph (6) of the definition of "international agreement" contained in section 101 of title 17, United States Code, as amended by section 102(a)(4) of this Act. (B) The amendment made by section 102(a)(7) of this Act. (C) The amendment made by section 102(b)(2) of this Act. (D) Subparagraph (D) of section 104A(h)(1) of title 17, United States Code, as amended by section 102(c)(1) of this Act. (E) Subparagraph (D) of section 104A(h)(3) of title 17, United States Code, as amended by section 102(c)(2) of this Act. (F) The amendments made by section 102(c)(3) of this Act. * * * * * * * Title II - Online Copyright Infringement Liability Limitation SEC. 201. SHORT TITLE. This title may be cited as the "Online Copyright Infringement Liability Limitation Act". * * * * * * * SEC. 203. EFFECTIVE DATE. This title and the amendments made by this title shall take effect on the date of the enactment of this Act. * * * * * * * Title IV - Miscellaneous Provisions SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS AND TRADEMARKS AND THE REGISTER OF COPYRIGHTS- (a) Compensation. (1) Section 3(d) of title 35, United States Code, is amended by striking "prescribed by law for Assistant Secretaries of Commerce" and inserting "in effect for level III of the Executive Schedule under section 5314 of title 5, United States Code". * * * * * * * (3) Section 5314 of title 5, United States Code, is amended by adding at the end the following: "Assistant Secretary of Commerce and Commissioner of Patents and Trademarks. "Register of Copyrights.". * * * * * * * SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION. (a) Recommendations by Register of Copyrights. Not later than 6 months after the date of the enactment of this Act, the Register of Copyrights, after consultation with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, shall submit to the Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works. Such recommendations shall include any legislation the Register of Copyrights considers appropriate to achieve the objective described in the preceding sentence. (b) Factors. In formulating recommendations under subsection (a), the Register of Copyrights shall consider- (1) the need for an exemption from exclusive rights of copyright owners for distance education through digital networks; (2) the categories of works to be included under any distance education exemption; (3) the extent of appropriate quantitative limitations on the portions of works that may be used under any distance education exemption; (4) the parties who should be entitled to the benefits of any distance education exemption; (5) the parties who should be designated as eligible recipients of distance education materials under any distance education exemption; (6) whether and what types of technological measures can or should be employed to safeguard against unauthorized access to, and use or retention of, copyrighted materials as a condition of eligibility for any distance education exemption, including, in light of developing technological capabilities, the exemption set out in section 110(2) of title 17, United States Code; (7) the extent to which the availability of licenses for the use of copyrighted works in distance education through interactive digital networks should be considered in assessing eligibility for any distance education exemption; and (8) such other issues relating to distance education through interactive digital networks that the Register considers appropriate. * * * * * * * SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS; EPHEMERAL RECORDINGS. (a) Scope of Exclusive Rights in Sound Recordings. * * * * * * * (5) The amendment made by paragraph (2)(B)(i)(III) of this subsection shall be deemed to have been enacted as part of the Digital Performance Right in Sound Recordings Act of 1995, and the publication of notice of proceedings under section 114(f)(1) of title 17, United States Code, as in effect upon the effective date of that Act, for the determination of royalty payments shall be deemed to have been made for the period beginning on the effective date of that Act and ending on December 1, 2001. (6) The amendments made by this subsection do not annul, limit, or otherwise impair the rights that are preserved by section 114 of title 17, United States Code, including the rights preserved by subsections (c), (d)(4), and (i) of such section. * * * * * * * (c) Scope of Section 112(a) of Title 17 Not Affected. Nothing in this section or the amendments made by this section shall affect the scope of section 112(a) of title 17, United States Code, or the entitlement of any person to an exemption thereunder. * * * * * * * SEC. 406. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO- TRANSFERS OF RIGHTS IN MOTION PICTURES. (a) In General. Part VI of title 28, United States Code, is amended by adding at the end the following new chapter: "CHAPTER 180-ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS "Sec. 4001. Assumption of contractual obligations related to transfers of rights in motion pictures. "Sec. 4001. Assumption of contractual obligations related to transfers of rights in motion pictures "(a) Assumption of Obligations. (1) In the case of a transfer of copyright ownership under United States law in a motion picture (as the terms 'transfer of copyright ownership' and 'motion picture' are defined in section 101 of title 17) that is produced subject to 1 or more collective bargaining agreements negotiated under the laws of the United States, if the transfer is executed on or after the effective date of this chapter and is not limited to public performance rights, the transfer instrument shall be deemed to incorporate the assumption agreements applicable to the copyright ownership being transferred that are required by the applicable collective bargaining agreement, and the transferee shall be subject to the obligations under each such assumption agreement to make residual payments and provide related notices, accruing after the effective date of the transfer and applicable to the exploitation of the rights transferred, and any remedies under each such assumption agreement for breach of those obligations, as those obligations and remedies are set forth in the applicable collective bargaining agreement, if- "(A) the transferee knows or has reason to know at the time of the transfer that such collective bargaining agreement was or will be applicable to the motion picture; or "(B) in the event of a court order confirming an arbitration award against the transferor under the collective bargaining agreement, the transferor does not have the financial ability to satisfy the award within 90 days after the order is issued. "(2) For purposes of paragraph (1)(A), 'knows or has reason to know' means any of the following: "(A) Actual knowledge that the collective bargaining agreement was or will be applicable to the motion picture. "(B)(i) Constructive knowledge that the collective bargaining agreement was or will be applicable to the motion picture, arising from recordation of a document pertaining to copyright in the motion picture under section 205 of title 17 or from publication, at a site available to the public on-line that is operated by the relevant union, of information that identifies the motion picture as subject to a collective bargaining agreement with that union, if the site permits commercially reasonable verification of the date on which the information was available for access. "(ii) Clause (i) applies only if the transfer referred to in subsection (a)(1) occurs- "(I) after the motion picture is completed, or "(II) before the motion picture is completed and- "(aa) within 18 months before the filing of an application for copyright registration for the motion picture under section 408 of title 17, or "(bb) if no such application is filed, within 18 months before the first publication of the motion picture in the United States. "(C) Awareness of other facts and circumstances pertaining to a particular transfer from which it is apparent that the collective bargaining agreement was or will be applicable to the motion picture. "(b) Scope of Exclusion of Transfers of Public Performance Rights. For purposes of this section, the exclusion under subsection (a) of transfers of copyright ownership in a motion picture that are limited to public performance rights includes transfers to a terrestrial broadcast station, cable system, or programmer to the extent that the station, system, or programmer is functioning as an exhibitor of the motion picture, either by exhibiting the motion picture on its own network, system, service, or station, or by initiating the transmission of an exhibition that is carried on another network, system, service, or station. When a terrestrial broadcast station, cable system, or programmer, or other transferee, is also functioning otherwise as a distributor or as a producer of the motion picture, the public performance exclusion does not affect any obligations imposed on the transferee to the extent that it is engaging in such functions. "(c) Exclusion for Grants of Security Interests. Subsection (a) shall not apply to- "(1) a transfer of copyright ownership consisting solely of a mortgage, hypothecation, or other security interest; or "(2) a subsequent transfer of the copyright ownership secured by the security interest described in paragraph (1) by or under the authority of the secured party, including a transfer through the exercise of the secured party's rights or remedies as a secured party, or by a subsequent transferee. "The exclusion under this subsection shall not affect any rights or remedies under law or contract. "(d) Deferral Pending Resolution of Bona Fide Dispute. "A transferee on which obligations are imposed under subsection (a) by virtue of paragraph (1) of that subsection may elect to defer performance of such obligations that are subject to a bona fide dispute between a union and a prior transferor until that dispute is resolved, except that such deferral shall not stay accrual of any union claims due under an applicable collective bargaining agreement. "(e) Scope of Obligations Determined by Private Agreement. Nothing in this section shall expand or diminish the rights, obligations, or remedies of any person under the collective bargaining agreements or assumption agreements referred to in this section. "(f) Failure to Notify. If the transferor under subsection (a) fails to notify the transferee under subsection (a) of applicable collective bargaining obligations before the execution of the transfer instrument, and subsection (a) is made applicable to the transferee solely by virtue of subsection (a)(1)(B), the transferor shall be liable to the transferee for any damages suffered by the transferee as a result of the failure to notify. "(g) Determination of Disputes and Claims. Any dispute concerning the application of subsections (a) through (f) shall be determined by an action in United States district court, and the court in its discretion may allow the recovery of full costs by or against any party and may also award a reasonable attorney's fee to the prevailing party as part of the costs. "(h) Study. The Comptroller General, in consultation with the Register of Copyrights, shall conduct a study of the conditions in the motion picture industry that gave rise to this section, and the impact of this section on the motion picture industry. The Comptroller General shall report the findings of the study to the Congress within 2 years after the effective date of this chapter." * * * * * * * SEC. 407. EFFECTIVE DATE. Except as otherwise provided in this title, this title and the amendments made by this title shall take effect on the date of the enactment of this Act. * * * * * * * Title V-Protection of Certain Original Designs SEC. 501. SHORT TITLE. This Act may be referred to as the "Vessel Hull Design Protection Act". * * * * * * * SEC. 503. CONFORMING AMENDMENTS. * * * * * * * (b) Jurisdictions of District Courts Over Design Actions. (1) Section 1338(c) of title 28, United States Code, is amended by inserting ", and to exclusive rights in designs under chapter 13 of title 17," after "title 17". (2)(A) The section heading for section 1338 of title 28, United States Code, is amended by inserting "designs," after "mask works,". (B) The item relating to section 1338 in the table of sections at the beginning of chapter 85 of title 28, United States Code, is amended by inserting "designs," after "mask works,". (c) Place for Bringing Design Actions. (1) Section 1400(a) of title 28, United States Code, is amended by inserting "or designs" after "mask works". (2) The section heading for section 1400 of title 28, United States Code is amended to read as follows: "Patents and copyrights, mask works, and designs". (3) The item relating to section 1400 in the table of sections at the beginning of chapter 87 of title 28, United States Code, is amended to read as follows: "1400. Patents and copyrights, mask works, and designs.". (d) Actions Against the United States. Section 1498(e) of title 28, United States Code, is amended by inserting ", and to exclusive rights in designs under chapter 13 of title 17," after "title 17". SEC. 504. JOINT STUDY OF THE EFFECT OF THIS TITLE [2] (a) In General. Not later than November 1, 2003, the Register of Copyrights and the Commissioner of Patents and Trademarks shall submit to the Committees on the Judiciary of the Senate and the House of Representatives a joint report evaluating the effect of the amendments made by this title. (b) Elements for Consideration. In carrying out subsection (a), the Register of Copyrights and the Commissioner of Patents and Trademarks shall consider- (1) the extent to which the amendments made by this title has been effective in suppressing infringement of the design of vessel hulls; (2) the extent to which the registration provided for in chapter 13 of title 17, United States Code, as added by this title, has been utilized; (3) the extent to which the creation of new designs of vessel hulls have been encouraged by the amendments made by this title; (4) the effect, if any, of the amendments made by this title on the price of vessels with hulls protected under such amendments; and (5) such other considerations as the Register and the Commissioner may deem relevant to accomplish the purposes of the evaluation conducted under subsection (a). SEC. 505. EFFECTIVE DATE. [3] The amendments made by sections 502 and 503 shall take effect on the date of the enactment of this Act. ------------------- Appendix V Endnotes 1 Part V of the Appendix contains provisions from the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, that do not amend title 17 of the *United States Code.* 2 The Satellite Home Viewer Improvement Act of 1999 amended section 504(a) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593. 3 The Intellectual Property and Communications Omnibus Reform Act of 1999 amended section 505 by deleting everything at the end of the sentence, after "Act." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593. ------------------------------------------------------------------------ Appendix VI. Definition of "Berne Convention Work" The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 deleted the definition of "Berne Convention work" from section 101. [1] Pub. L. No. 105-304, 112 Stat. 2861. The definition of Berne Convention work, as deleted, is as follows: A work is a "Berne Convention work" if- (1) in the case of an unpublished work, one or more of the authors is a national of a nation adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a nation adhering to the Berne Convention on the date of first publication; (2) the work was first published in a nation adhering to the Berne Convention, or was simultaneously first published in a nation adhering to the Berne convention and in a foreign nation that does not adhere to the Berne Convention; (3) in the case of an audiovisual work- (A) if one or more of the authors is a legal entity, that author has its headquarters in a nation adhering to the Berne Convention; or (B) if one or more of the authors is an individual, that author is domiciled, or has his or her habitual residence in, a nation adhering to the Berne Convention; or (4) in the case of a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, the building or structure is located in a nation adhering to the Berne Convention; or (5) in the case of an architectural work embodied in a building, such building is erected in a country adhering to the Berne Convention. For purposes of paragraph (1), an author who is domiciled in or has his or her habitual residence in, a nation adhering to the Berne Convention is considered to be a national of that nation. For purposes of paragraph (2), a work is considered to have been simultaneously published in two or more nations if its dates of publication are within 30 days of one another. ------------------- Appendix VI Endnote 1 For a discussion of the legislative history of the definition of "Berne Convention work," see endnote 2, chapter 1, *supra.* ------------------------------------------------------------------------ Appendix VII. Selected Provisions of the U.S. Code Relating to Copyright Title 18 - Crimes and Criminal Procedure Part I - Crimes Chapter 113 - Stolen Property * * * * * * * Sec. 2318. Trafficking in counterfeit labels for phonorecords, copies of computer programs or computer program documentation or packaging, and copies of motion pictures or other audio visual works, and trafficking in counterfeit computer program documentation or packaging. [1] (a) Whoever, in any of the circumstances described in subsection (c) of this section, knowingly traffics in a counterfeit label affixed or designed to be affixed to a phonorecord, or a copy of a computer program or documentation or packaging for a computer program, or a copy of a motion picture or other audiovisual work, and whoever, in any of the circumstances described in subsection (c) of this section, knowingly traffics in counterfeit documentation or packaging for a computer program, shall be fined under this title or imprisoned for not more than five years, or both. (b) As used in this section- (1) the term "counterfeit label" means an identifying label or container that appears to be genuine, but is not; (2) the term "traffic" means to transport, transfer or otherwise dispose of, to another, as consideration for anything of value or to make or obtain control of with intent to so transport, transfer or dispose of; and (3) the terms "copy", "phonorecord", "motion picture", "computer program", and "audiovisual work" have, respectively, the meanings given those terms in section 101 (relating to definitions) of title 17. (c) The circumstances referred to in subsection (a) of this section are- (1) the offense is committed within the special maritime and territorial jurisdiction of the United States; or within the special aircraft jurisdiction of the United States (as defined in section 46501 of title 49); (2) the mail or a facility of interstate or foreign commerce is used or intended to be used in the commission of the offense; (3) the counterfeit label is affixed to or encloses, or is designed to be affixed to or enclose, a copy of a copyrighted computer program or copyrighted documentation or packaging for a computer program, a copyrighted motion picture or other audiovisual work, or a phonorecord of a copyrighted sound recording; or (4) the counterfeited documentation or packaging for a computer program is copyrighted. (d) When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all counterfeit labels and all articles to which counterfeit labels have been affixed or which were intended to have had such labels affixed. (e) Except to the extent they are inconsistent with the provisions of this title, all provisions of section 509, title 17, United States Code, are applicable to violations of subsection (a). Sec. 2319. Criminal infringement of a copyright [2] (a) Whoever violates section 506(a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b) and (c) of this section and such penalties shall be in addition to any other provisions of title 17 or any other law. (b) Any person who commits an offense under section 506 (a)(1) of title 17- (1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500; (2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and (3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case. (c) Any person who commits an offense under section 506(a)(2) of title 17, United States Code- (1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more; (2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and (3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000. (d) (1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim. (2) Persons permitted to submit victim impact statements shall include- (A) producers and sellers of legitimate works affected by conduct involved in the offense; (B) holders of intellectual property rights in such works; and (C) the legal representatives of such producers, sellers, and holders. (e) As used in this section- (1) the terms "phonorecord" and "copies" have, respectively, the meanings set forth in section 101 (relating to definitions) of title 17; and (2) the terms "reproduction" and "distribution" refer to the exclusive rights of a copyright owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 120, of title 17. Sec. 2319A. Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances [3] (a) Offense. Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain- (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation; (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance; or (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States; shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both, or if the offense is a second or subsequent offense, shall be imprisoned for not more than 10 years or fined in the amount set forth in this title, or both. (b) Forfeiture and Destruction. When a person is convicted of a violation of subsection (a), the court shall order the forfeiture and destruction of any copies or phonorecords created in violation thereof, as well as any plates, molds, matrices, masters, tapes, and film negatives by means of which such copies or phonorecords may be made. The court may also, in its discretion, order the forfeiture and destruction of any other equipment by means of which such copies or phonorecords may be reproduced, taking into account the nature, scope, and proportionality of the use of the equipment in the offense. (c) Seizure and Forfeiture. If copies or phonorecords of sounds or sounds and images of a live musical performance are fixed outside of the United States without the consent of the performer or performers involved, such copies or phonorecords are subject to seizure and forfeiture in the United States in the same manner as property imported in violation of the customs laws. The Secretary of the Treasury shall, not later than 60 days after the date of the enactment of the Uruguay Round Agreements Act, issue regulations to carry out this subsection, including regulations by which any performer may, upon payment of a specified fee, be entitled to notification by the United States Customs Service of the importation of copies or phonorecords that appear to consist of unauthorized fixations of the sounds or sounds and images of a live musical performance. (d) Victim Impact Statement. (1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim. (2) Persons permitted to submit victim impact statements shall include- (A) producers and sellers of legitimate works affected by conduct involved in the offense; (B) holders of intellectual property rights in such works; and (C) the legal representatives of such producers, sellers, and holders. (e) Definitions. As used in this section- (1) the terms "copy", "fixed", "musical work", "phonorecord", "reproduce", "sound recordings", and "transmit" mean those terms within the meaning of title 17; and (2) the term "traffic in" means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of. (f) Applicability. This section shall apply to any Act or Acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act. * * * * * * * Title 28 - Judiciary and Judicial Procedure Part IV - Jurisdiction and Venue Chapter 85 - District Courts; Jurisdiction * * * * * * * Sec. 1338. Patents, plant variety protection, copyrights, mask works, trade-marks, and unfair competition {4} (a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases. (b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trade-mark laws. (c) Subsections (a) and (b) apply to exclusive rights in mask works under chapter 9 of title 17 to the same extent as such subsections apply to copyrights. * * * * * * * * * Chapter 91 - United States Court of Federal Claims * * * * * * * * * Sec. 1498. Patent and copyright cases [5] * * * * * * * * * (b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations. Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date. (c) The provisions of this section shall not apply to any claim arising in a foreign country. * * * * * * * * * * (e) Subsections (b) and (c) of this section apply to exclusive rights in mask works under chapter 9 of title 17 to the same extent as such subsections apply to copyrights. * * * * * * * * * * Title 44 - Public Printing and Documents Chapter 21 - National Archives and Records Administration * * * * * * * * * * Sec. 2117. Limitation on liability [6] When letters and other intellectual productions (exclusive of patented material, published works under copyright protection, and unpublished works for which copyright registration has been made) come into the custody or possession of the Archivist, the United States or its agents are not liable for infringement of copyright or analogous rights arising out of use of the materials for display, inspection, research, reproduction, or other purposes. --------------------- Appendix VII Endnotes 1 In 1962, section 2318, entitled "Transportation, sale, or receipt of phonograph records bearing forged or counterfeit labels," was added to title 18 of the *United States Code.* Pub. L. No. 87-773, 76 Stat. 775. In 1974, section 2318 was amended to change the penalties. Pub. L. No. 93-573, 88 Stat. 1873. The Copyright Act of 1976 revised section 2318 with an amendment in the nature of a substitute. Pub. L. No. 94-553, 90 Stat. 2541, 2600. The Piracy and Counterfeiting Amendments Act of 1982 again revised section 2318 with an amendment in the nature of a substitute that included a new title, "Trafficking in counterfeit labels for phonorecords, and copies of motion pictures or other audiovisual works." Pub. L. No. 97-180, 96 Stat. 91. The Crime Control Act of 1990 made a technical amendment to section 2318 to delete the comma after "phonorecords" in the title. Pub. L. No. 101-647, 104 Stat. 4789, 4928. In 1994, section 2318(c)(1) was amended by inserting "section 46501 of title 49" in lieu of "section 101 of the Federal Aviation Act of 1958. Pub. L. No. 103-272, 108 Stat. 745, 1374. The Violent Crime Control and Law Enforcement Act of 1994 amended section 2318(a) by inserting "under this title" in lieu of "not more than $250,000." Pub. L. No. 103-322, 108 Stat. 1796, 2148. (As provided in 18 U.S.C. Sec. 3571, the maximum fine for an individual is $250,000, and the maximum fine for an organization is $500,000.) The Anticounterfeiting Consumer Protection Act of 1996 amended section 2318 by changing the title, by amending subsection (a) to insert "a computer program or documentation" through to "knowingly traffics in counterfeit documentation or packaging for a computer program" in lieu of "a motion picture or other audiovisual work" and by amending subsection (b)(3) to insert "computer program" after "motion picture." Pub. L. No. 104-153, 110 Stat. 1386. The Act also amended section 2318(c) by inserting "a copy of a copyrighted computer program or copyrighted documentation or packaging for a computer program" into paragraph (3) and by adding paragraph (4). *Id.* at 1387. 2 The Piracy and Counterfeiting Amendments Act of 1982 added section 2319 to title 18 of the *United States Code.* Pub. L. No. 97-180, 96 Stat. 91, 92. In 1992, section 2319 was amended by substituting a new subsection (b), by deleting "sound recording," "motion picture" and "audiovisual work" from subsection (c)(1) and by substituting "120" for "118" in subsection (c)(2). Pub. L. No. 102-561, 106 Stat. 4233. In 1997, a technical amendment corrected the spelling of "last" in subsection (b)(1) to "least." Pub. L. No. 105-80, 111 Stat. 1529, 1536. In 1997, the No Electronic Theft Act amended section 2319 of title 18 as follows: 1) in subsection (a) by inserting "and (c)" after "subsection (b),"; 2) in subsection (b), in the matter preceding paragraph (1), by inserting "section 506(a)(1) of title 17" in lieu of "subsection (a) of this section,"; 3) in subsection (b)(1) by inserting "including by electronic means" and by inserting "which have a total retail value" in lieu of "with a retail value," 4) by redesignating subsection (c) as subsection (e); and 5) by adding new subsections (c) and (d). Pub. L. No. 105-147, 111 Stat. 2678. The Act also directed the United States Sentencing Commission to "ensure that the applicable guideline range for a defendant convicted of a crime against intellectual property . . . is sufficiently stringent to deter such a crime" and to "ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the crime against intellectual property was committed."* Id.* See also endnote 5, chapter 5, *supra.* 3 In 1994, the Uruguay Round Agreements Act added section 2319A to title 18 of the *United States Code.* Pub. L. No. 103-465, 108 Stat. 4809, 4974. In 1997, the No Electronic Theft Act amended section 2319A by redesignating subsections (d) and (e) as subsections (e) and (f), respectively, and by adding subsection (d). Pub. L. No. 105-147, 111 Stat. 2678. See also endnote 2, *supra*, regarding the United States Sentencing Commission. 4 In 1948, section 1338, entitled "Patents, copyrights, trade-marks, and unfair competition," was added to title 28 of the *United States Code.* Pub. L. No. 773, 62 Stat. 869, 931. In 1970, the title of section 1338 and the text of subsection (b) were amended to insert "plant variety protection" after "patent." Pub. L. No. 91-577, 84 Stat. 1542, 1559. In 1988, the Judicial Improvements and Access to Justice Act amended section 1338 by adding "mask works" to the title and by adding subsection (c). Pub. L. No. 100-702, 102 Stat. 4642, 4671. 5 In 1960, section 1498 of the *United States Code* was amended to add subsections (b) and (c). Pub. L. No. 86-726, 74 Stat. 855. The Copyright Act of 1976 amended section 1498(b) to insert "section 504(c) of title 17" in lieu of "section 101(b) of title 17." Pub. L. No. 94-553, 90 Stat. 2541, 2599. The Federal Courts Improvement Act of 1982 amended section 1498(a) to insert "United States Claims Court" in lieu of "Court of Claims" and, in subsections (b) and (d), to insert "Claims Court" in lieu of "Court of Claims," wherever it appeared. Pub. L. No. 97-164, 96 Stat. 25, 40. In 1988, the Judicial Improvements and Access to Justice Act amended section 1498 by adding subsection (e). Pub. L. No. 100-702, 102 Stat. 4642, 4671. The Federal Courts Administration Act of 1992 amended section 1498 by inserting "United States Court of Federal Claims" in lieu of "United States Claims Court," wherever it appeared, and by inserting "Court of Federal Claims" in lieu of "Claims Court," wherever it appeared. Pub. L. No. 102-572, 106 Stat. 4506, 4516. In 1997, the No Electronic Theft (NET) Act amended section 1498(b) to insert "action which may be brought for such infringement shall be an action by the copyright owner" in lieu of "remedy of the owner of such copyright shall be by action." Pub. L. No. 105-147, 111 Stat. 2678, 2680. 6 In 1968, section 2113, entitled "Limitation on liability," was added to title 44 of the *United States Code.* Pub. L. No. 90-620, 82 Stat. 1238, 1291. The Copyright Act of 1976 amended section 2113 in its entirety. Pub. L. No. 94-553, 90 Stat. 2541, 2599. The National Archives and Records Administration Act of 1984 amended section 2113 by redesignating it as section 2117 and by inserting "Archivist" in lieu of "Administrator of General Services." Pub. L. No. 98-497, 98 Stat. 2280 and 2286. ------------------------------------------------------------------------ 09-Aug-2001 
40613	----	produced from scanned images of public domain material from the Google Print project.) ARGUMENTS BEFORE THE COMMITTEE ON PATENTS OF THE HOUSE OF REPRESENTATIVES, CONJOINTLY WITH THE SENATE COMMITTEE ON PATENTS, ON H.R. 19853, TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT. JUNE 6, 7, 8, AND 9, 1906. COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, FIFTY-NINTH CONGRESS. FRANK D. CURRIER, NEW HAMPSHIRE, _Chairman_. SOLOMON R. DRESSER, PENNSYLVANIA. JOSEPH M. DIXON, MONTANA. EDWARD H. HINSHAW, NEBRASKA. ROBERT W. BONYNGE, COLORADO. WILLIAM W. CAMPBELL, OHIO. ANDREW J. BARCHFELD, PENNSYLVANIA. JOHN C. CHANEY, INDIANA. CHARLES McGAVIN, ILLINOIS. WILLIAM SULZER, NEW YORK. GEORGE S. LEGARE, SOUTH CAROLINA. EDWIN Y. WEBB, NORTH CAROLINA. ROBERT G. SOUTHALL, VIRGINIA. JOHN GILL, JR., MARYLAND. EDWARD A. BARNEY, _Clerk_. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1906. Transcriber's Note: Printer's inconsistencies in spelling, punctuation and hyphenation have been retained. In this etext a caret (^) is used to indicate that the character following it is printed as superscript text. ARGUMENTS ON H.R. 19853, TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT. COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, _Wednesday, June 6, 1906_. The committee met at 10 o'clock a.m.; at the Senate reading room, Library of Congress, conjointly with the Senate Committee on Patents. Present, Senators Kittredge (chairman), Clapp, Smoot, Foster, and Latimer; Representatives Currier (chairman), Bonynge, Campbell, Chaney, McGavin, Sulzer, and Webb. The CHAIRMAN. We are met to consider Senate bill 6330, relative to the copyright law. We would like to hear first from Mr. Putnam regarding the history of the proposed legislation. STATEMENT OF HERBERT PUTNAM, ESQ., LIBRARIAN OF CONGRESS. Mr. PUTNAM. Mr. Chairman and gentlemen of the committee, the origin of this bill is indicated in the message of the President to Congress last December. The passage is brief; let me read it: Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the copyright office to administer with satisfaction to the public. Attempts to improve them by amendment have been frequent, no less than twelve acts for the purpose having been passed since the Revised Statutes. To perfect them by further amendment seems impracticable. A complete revision of them is essential. Such a revision, to meet modern conditions, has been found necessary in Germany, Austria, Sweden, and other foreign countries, and bills embodying it are pending in England and the Australian colonies. It has been urged here, and proposals for a commission to undertake it have, from time to time, been pressed upon the Congress. The inconveniences of the present conditions being so great an attempt to frame appropriate legislation has been made by the Copyright Office, which has called conferences of the various interests especially and practically concerned with the operation of the copyright laws. It has secured from them suggestions as to the changes necessary; it has added from its own experience and investigation, and it has drafted a bill which embodies such of these changes and additions as, after full discussion and expert criticism, appeared to be sound and safe. In form this bill would replace the existing insufficient and inconsistent laws by one general copyright statute. It will be presented to the Congress at the coming session. It deserves prompt consideration. So far the message. It did not contain what was the fact as to the origin of this project, that it did originate in an informal suggestion on the part of the chairman of this committee. The conferences to which it refers were not open, public meetings; they were not conventions; they were conferences, and conferences of organizations--that is to say, associations representing a group of interests; and those organizations were specially invited, additions being made to the list later as suggestions were made of others that should be added. The organizations selected were the most representative organizations that we could think of or that were brought to our attention as having practical concern in the amelioration of the law, but especially, of course, those concerned in an affirmative way--that is to say, in the protection of the right. They were nearly thirty in number. The list of them and their representatives is before you. (The list referred to was, by direction of the committee, made a part of the record, and is as follows:) _List of associations invited to take part and the delegates nominated to be present at the conference on copyright, together with other participants._ AUTHORS. American (Authors') Copyright League: Edmund Clarence Stedman^1,^2, president; Richard R. Bowker, vice president; Robert Underwood Johnson^1,^2, secretary; Edmund Munroe Smith, acting secretary (not present). National Institute of Arts and Letters: Edmund Clarence Stedman^1,^2, president; Brander Matthews^1,^2. DRAMATISTS AND PLAYWRIGHTS. American Dramatists Club: Bronson Howard, president; Joseph I. C. Clarke^1, first vice president; Harry P. Mawson^1,^2, chairman committee on legislation; Joseph R. Grismer^1, committee on legislation; Charles Klein^3. Association of Theatre Managers of Greater New York: Charles Burnham^1, first vice president; Henry B. Harris^1, secretary. ARTISTS: PAINTERS, SCULPTORS, ARCHITECTS. American Institute of Architects: Glenn Brown, secretary. Architectural League of America: D. Everett Waid^1,^2. National Academy of Design: Frank D. Millet. National Sculpture Society: Daniel Chester French^3, president; Karl Bitter^2,^3, vice president. Society of American Artists: John La Farge^1, president; John W. Alexander^1,^2. COMPOSERS. Manuscript Society: Miss Laura Sedgwick Collins^1 (charter member), F. L. Sealy^2. PUBLISHERS. American Publishers' Copyright League: William W. Appleton, president; George Haven Putnam^2,^3, secretary; Charles Scribner^1,^2, treasurer; Stephen H. Olin^2,^3, counsel. Association of American Directory Publishers: W. H. Lee^2,^3, president; W. H. Bates, secretary; Alfred Lucking^3, counsel; Everett S. Geer^3, president Hartford Printing Company; William E. Murdock^3, trustee of the Association of American Directory Publishers; Ralph L. Polk^3, trustee of the Association of American Directory Publishers; S. T. Leet^3. PUBLISHERS OF NEWSPAPERS AND MAGAZINES. American Newspaper Publishers' Association: Don C. Seitz^1,^2, acting chairman copyright committee; John Stewart Bryan^1,^2, copyright committee; Louis M. Duvall^1,^2, copyright committee; Thos. J. Walsh^2, at the request of Mr. Seitz. Periodical Publishers' Association of America: Charles Scribner^1,^2. PUBLISHERS OF ARTISTIC REPRODUCTIONS: LITHOGRAPHERS, PHOTOGRAPHERS. National Association of Photoengravers: B. W. Wilson, jr.^2 Photographers' Copyright League of America: B. J. Falk, president; Pirie MacDonald; A. B. Browne^3, counsel. Print Publishers' Association of America: W. A. Livingstone, president; Benjamin Curtis^3, secretary; George L. Canfield^3, counsel. Reproductive Arts Copyright League (Lithographers' Association--East): Robert M. Donaldson, president: Edmund B. Osborne^2, vice-president; A. Beverly Smith, secretary; Fanueil D. S. Bethune^2,^3, counsel. PUBLISHERS OF MUSIC. Music Publishers' Association of the United States: J. F. Bowers^2,^3, president; Charles B. Bayly^3, secretary; George W. Furniss, chairman copyright committee; Walter M. Bacon, of copyright committee; Nathan Burkan^2,^3, counsel; A. R. Serven,^3 counsel; Leo Feist^3; Isidore Witmark^3; R. L. Thomæ,^2,^3 (Victor Talking Machine Company, of Philadelphia). PRINTERS AND LITHOGRAPHERS. United Typothetæ of America: Isaac H. Blanchard^1, of executive committee; Chas. W. Ames^2,^3. International Typographical Union: J. J. Sullivan, chairman I. T. U. copyright committee; P. H. McCormick, president, and George J. Jackson, organizer, of New York Typographical Union No. 6. Central Lithographic Trades Council: W. A. Coakley^3. EDUCATIONAL INSTITUTIONS. National Educational Association: George S. Davis^1, associate city superintendent of schools; Claude G. Leland^2, librarian board of education of New York. PUBLIC LIBRARIES. American Library Association: Frank P. Hill, president; Arthur E. Bostwick. BAR ASSOCIATIONS. American Bar Association--Advisory committee: Arthur Steuart^1,^3, chairman; Edmund Wetmore^2, Frank F. Reed (not present). Association of the Bar of the City of New York--Advisory committee: Paul Fuller^3, chairman; William G. Choate, John E. Parsons, John L. Cadwalader, Edmund Wetmore^2, Henry Galbraith Ward, Arthur H. Masten. (Of this committee, appointed after the second conference, only Mr. Fuller was present.) MISCELLANEOUS. International Advertising Association: Will Phillip Hooper^1,^2; James L. Steuart^2, counsel. The Sphinx Club: Will Phillip Hooper^1,^2. OTHERS PRESENT, BUT NOT FORMALLY PARTICIPATING. Samuel J. Elder, of Boston; André Lesourd^3, of New York; A. Bell Malcomson^3, of New York; Ansley Wilcox^3, of Buffalo; A. W. Elson^2,^3, of Boston; Gen. Eugene Griffin^3, of New York; Charles H. Sergel^3, of Chicago. Librarian of Congress, Herbert Putnam. Register of Copyrights, Thorvald Solberg. Commissioner of Patents, Frederick I. Allen (was not present, but submitted written suggestions). Department of Justice, Henry M. Hoyt^3, Solicitor-General (present, but not formally participating); William J. Hughes^2,^3, of the Solicitor-General's Office (present, but not formally participating). Treasury Department, Charles P. Montgomery, of the Customs Division. NOTE.--Persons marked ^1,^2, or ^3 were present only at the sessions thus indicated. The absence of a mark following a name indicates attendance at all three sessions. Mr. PUTNAM. These men are the writers of books, the writers of plays, the composers of music, the architects, painters and sculptors, the photographers and photoengravers, the publishers of books, newspapers, periodicals, music, and prints, and the manufacturers, printers, typographers, and lithographers. The conference included, therefore, those interests that abroad are considered primary in such a matter--that is, the creators of the works which are to be protected and the publishers through whom the property in these becomes effective and remunerative; but it included under each of these genera several species and various subsidiary interests. It included the National Educational Association and the American Library Association as representing to some extent the consumers; and in addition to the legal counsel representing special interests it included two committees of the American Bar Association and of the New York Bar Association of experts upon copyright law, who gave gratuitous service as general advisors to the conference and in the framing of the bill. Upon questions of importation the conference had the benefit of information and advice from a representative of the Treasury Department, expert in the practice of that Department at ports of entry. The Solicitor-General, whose name appears upon the list, was not a formal participant, but his representative was present throughout as an observer of the proceedings; and if I do not emphasize the aid which he and which the Solicitor-General himself, in later informal criticism and suggestion, rendered, it is only because the practice of his office forbids him to take part in the initiation of legislation; and his assistance in this matter must not be taken as a precedent to his inconvenience. The conference held three meetings in June and November of last year and in March of this year, but, of course, as a conference it included various minor consultations and much correspondence. At the outset of the meeting last June each organization was invited to state the respects in which it deemed the present law defective or injurious, either to its own interest, or, in its opinion, to the general interest. The second conference had before it a memorandum prepared by the register embodying provisions deemed by the office important for consideration at that stage. The third conference, in March of this year, had before it a revision of this memorandum. The last conference, this third, resulted in the draft of a bill, which was sent to each participant for comment and suggestion, and the bill itself is before you. We would have no misunderstanding as to what this bill is. It is a bill resulting from the conference, but it is not a conference bill; for the conference did not draw it, nor did it by explicit vote or otherwise determine its precise provisions. It is rather a copyright office bill. The office submits it as embodying what, with the best counsel available, including the conferences, it deems worthy of your consideration, in accordance with your previously expressed desire. In calling the conferences and in submitting the draft it has proceeded upon your suggestion. Apart from the chapter relating to its own administration, it has no direct interest in the bill, except its general interest to secure a general amelioration of the law. It does not offer the bill to you as the unanimous decision of a council of experts, for it contains certain provisions as to which expert opinion as well as substantial interest was divided. It does not offer to you the bill as one that has passed the test of public discussion, for it has only now come before the public. It knows already of objection to certain of its provisions--objection which will be entitled to be heard by your committee; and it is informed by one critic that his objections are sufficient to cover fully one-half of the provisions of the bill. The bill comes before you with precisely that presumption to which its history entitles it--no less, but no more. The conference had certain aids prepared in advance by the copyright office, which were embraced in these particular publications, setting forth the present law in this country and all previous enactments in this country--a bibliography, indeed, of all bills introduced into Congress, all amendments of the copyright laws, and the laws in foreign countries so far as they could be epitomized. The conferences occupied eleven days in all, of twenty-two sessions--two sessions a day. Their labors are evidenced by these four volumes, which are the stenographer's record of the proceedings. The sincerity of their endeavor to secure a result that should be scientific yet conservative, is, perhaps, evidenced by the brevity of the bill. The memorandum of last November contains some 16,000 words; that of March contains some 11,000 words; the bill contains slightly over 8,000 words. I believe that the present group of statutes embodying the existing law will contain somewhat over 4,000 words; and they are alleged to be imperfect and neither systematic nor organic. The bill attempts to be both. It is, as you see, divided into eight chapters, with some supplementary miscellaneous provisions. I say that it is divided into chapters--that is, recited in the contents of the bill as printed officially and set forth in marginal references in the bill as printed at the Library. These chapters deal with the nature and extent of copyright, the subject-matter of copyright, who may obtain copyright, how to secure it, the duration of it, the protection and the transfer of copyright, and the copyright office. I have furnished to your committee some analysis of it. That analysis is contained in the printed statement marked "Memorandum," of which there are additional copies here dated June 5, including those before you, containing some slight changes from those sent out to members of your committee. I would ask to have this one, dated on the outside June 5, considered the recent one. (The memorandum above referred to was, by direction of the committee, made a part of the record, and the same is as follows:) MEMORANDUM. A.--_Some leading features._ As the present law consists of but a group of statutes, and the proposed bill is systematic and organic in form, the changes which it introduces other than mere abrogations are not easily explained by mere reference to the existing statutes. Throughout attempt has been made to substitute general terms for particular specifications, to provide for a protection as broad as the Constitution contemplated, and to insure that no specification shall tend to limit unduly either subject-matter or the protection. Important respects in which the bill modifies or amplifies existing law are as follows: _Nature and extent._--Section 1, like section 9, is fundamental. The existing law (Rev. Stat., sec. 4952) specifies as the exclusive right "the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending;" of public performance or representation; and of dramatization or translation. The bill omits the specifications "printing, reprinting, publishing, completing, executing, and finishing," but attempts others intended to be fully as broad. [Please see sec. 1.] It adds the right of oral delivery in the case of lectures, and the right to make, sell, distribute, or let for hire any device, etc., especially adapted to reproduce to the ear any musical work, and to reproduce it to the ear by means of such a device; but these latter are limited to works hereafter published and copyrighted. The copyright is to protect "all the copyrightable component parts of the work copyrighted and any and all reproductions or copies thereof in whatever form, style, or size." _Subject-matter of copyright._--A general statement that it is to include "all the works of an author," leaving the term "author" to be as broad as the Constitution intended. Certain specifications follow, but coupled with the proviso that they shall not be held to limit the subject-matter. The specifications [sec. 5] substitute, so far as possible, general terms for particulars. They omit, for instance, the terms "engravings, cuts, lithographs, painting, chromo, statue, and statuary." They assume, however, that these will be included under the more general terms as "prints and pictorial illustrations," or "reproductions of a work of art," or "works of art," or "models or designs for works of art." The term "works of art" is deliberately intended as a broader specification than "works of the fine arts" in the present statute, with the idea that there is subject-matter (e.g., of applied design, yet not within the province of design patents) which may properly be entitled to protection under the copyright law. Express mention is made of oral lectures, sermons, and addresses; periodicals, including newspapers; drawings and plastic works of a scientific or technical character, and new matter contained in new editions. Labels and prints relating to articles of manufacture hereafter to be registered in the copyright office instead of in the Patent Office. Additions, revisions, abridgments, dramatizations, translations, etc., to be regarded as new works. [Sec. 6.] _Who may obtain copyright._--As broad as heretofore. International reciprocal arrangements confirmed. The privilege extended to any foreign author who is living in the United States at the time of the making and first publication of his work, or first or contemporaneously publishes here. _How to secure copyright._--The copyright is to be "secured" by publication of the work with the notice affixed. This section, 9, with section 14, is fundamental. Sections 10, 11, and 13 prescribe subsequent procedure in the copyright office. Registration is provided for works (e.g., works of art) of which copies are not reproduced for sale, with the requirement that the notice shall be affixed to the original "before publication thereof." [Sec. 10.] The deposit to be not later than thirty days after publication; in the case of a periodical not later than ten days. The copies deposited to be of the "best edition," as required by the act of 1870. [Sec. 11.] In case of error or omission to make the deposit within the thirty days, permission to make it within a year after first publication, but with the proviso that no action shall be brought for infringement until it has been made. [Sec. 15.] In case of a printed book the copies deposited must be accompanied with the affidavit called for by House bill 13355, passed by the House April 26, 1904, that the requirements as to American typesetting, etc., have been complied with, and the affidavit is to specify the place and the establishment in which the work was done. Extends [sec. 13] the "manufacturing clause" to include texts produced by lithographic process, and also in certain cases illustrations and separate lithographs, but abrogates it in the case of photographs. The articles required to be deposited are to be entitled to free transmittal through the mails, as under earlier statutes (e.g., act of February 18, 1867; July 8, 1870). [Sec. 12.] The notice of copyright simplified. Specified only for the copies "published or offered for sale in the United States." Where right of public performance is reserved on musical compositions, a notice to this effect is required. [Sec. 14.] _Ad interim term_ [_sec. 16_].--Extends the ad interim term of protection in the case of books first published abroad in foreign languages from one year to two years. Provides for an ad interim term in the case of books first published abroad in English, of thirty days, but with prohibition of importation during the interim. _Duration_ [_sec. 18_].--Instead of the present term (forty-two years), varying terms according to the subject-matter. Provides a special term of twenty-eight years (instead of forty-two years as now) for labels and prints heretofore registered in the Patent Office; increases the term of other articles, and especially derivative articles, from forty-two years to fifty years; and in the case of original works increases the term to the life of the author and fifty years. Abolishes renewals. The bill also makes provision for the extension of subsisting copyrights to agree with the term provided in the present bill where the author is living or his widow or a child, provided the publisher or other assignee joins in the application for such extension. (See section 19 of the draft.) The right of dramatization or translation must be exercised within ten years or it will lapse. _Protection of copyright._--The present statute (Rev. Stat., sec. 4965) attempts to define acts which shall constitute infringements. The bill, having defined the exclusive rights which the copyright has secured to the author, defines (sec. 23) infringement as "doing or causing to be done" without his consent "any act the exclusive right to do or authorize which" is "reserved" to him. It contains, however (sec. 22), the one specification that "any reproduction" without his consent "of any work or any material part of any work" in which copyright is subsisting, shall be illegal and is prohibited. The civil remedies open to him (sec. 23) are the injunction and an action for damages and profits, or, in lieu of actual damages and profits, "such damages as to the court shall appear just, to be assessed" upon the basis of so much per copy or infringing act, but to be not less than a total minimum of $250 and maximum of $5,000. And the infringing copies are to include all copies made by the defendant, and not merely those "found in his possession" or "sold or exposed for sale." A provision for the impounding and destruction of infringing copies and means for producing them. Protection provided for [sec. 21] against publication or reproduction of any unpublished copyrightable work. A willful infringement for profit, now a misdemeanor in the case of such a performance or representation of dramatic or musical compositions, is made a misdemeanor in all cases, as is also the insertion of a false notice of a copyright or the removal of a true one. [Sec. 22.] _Importations_ [_secs. 26-29_].--Detailed provision for the treatment of copies supposed to be infringing or otherwise prohibited. Exceptions to prohibition modified as below under memorandum "B." _Suits_ [_secs. 32, etc._]--Actions may be instituted "in the district of which the defendant is an inhabitant, or in a district where the violation of any provision of the act has occurred." Limitation of actions to be three years instead of two and to apply to all actions under the act. [Sec. 34.] _Transfers_ [_secs. 37-45_].--Definitions of the copyright as distinct from the property in the material object and of the copyrights in derivative works as distinct among themselves. _The copyright office._--Sections 46 to 60 provide specifically for the administration of this. _Catalogue of title entries._--Detailed provision is made for the continuance of the printing of the catalogue on the allotment for printing of the Library of Congress (see secs. 55 and 56 of the draft); and the catalogue is to be made prima facie evidence of deposit and registration. Provision is made for the reprinting of the indexes and catalogues in classes at stated intervals, with authority to destroy the manuscript cards included in such printed volumes. The current catalogues to be distributed from the copyright office, and sold at a price fixed by the register; the subscriptions to be received by the superintendent of public documents. Following the provisions for the indexing and cataloguing of the articles deposited, provisions are made, in sections 57, 58, and 59 of the draft for the public inspection of the copyright office record books and deposits; for the permanent use of such deposited articles; for their transfer to other Government libraries where unnecessary to the Library of Congress; and for the disposal of accumulations of useless articles. Section 60 provides for fees. A uniform fee of $1 for registration; but this is to include the certificate which is to be furnished in all cases [a separate charge is now made for it]. And the certificate is given a new importance as prima facie evidence of the facts which it sets forth, including deposit and registration, thus exempting the complainant in an action from other affirmative proof of compliance with these formalities. A single fee for certain registrations heretofore requiring multiple fees. B.--_Provisions of existing law which are omitted from the bill._ The existing law is set forth in the twenty-odd pages of "Copyright Office Bulletin No. 1." It consists of Article I, section 8, of the Constitution, sections 4948 to 4970, inclusive, of the Revised Statutes, and twelve later acts in amendment thereof. The substantial provisions of these which are intentionally abrogated are the following [references are to pages of the Bulletin, copy herewith]: [Section 4950, page 6.--Omitted in the bill, but exists still as part of the act of February 19, 1897.] Section 4952, page 6_A_.--Ad interim copyright. The requirement for notice (of date of publication and reservation of copyright) on the foreign edition is abolished. Section 4952, page 7.--Labels and prints relating to articles of manufacture no longer to be registered in the Patent Office, but in the copyright office, with corresponding reduction of fee. Section 4954, page 7.--Renewal term abolished. Section 4956, page 8.--Requirement that the deposit of copies shall be "on or before the date of publication" is abolished, and a margin of thirty days is allowed, with provisions for making good omissions within a year. The deposit (registration) is no longer to be the act entitling to a copyright. The copyright is to be "secured" by "the publication of the work with the notice of copyright affixed," and dates from such publication. Registration with deposit remains compulsory, and after the expiration of the thirty days no action for infringement can be brought until it has been made; but it is no longer expressed as a formality the failure to comply with which is to avoid the copyright. Section 4956, page 8.--Preliminary deposit of title or description abolished. "Photographs" omitted from the "manufacturing clause." ["Chromos" also, in terms, but assumed to be covered by "lithographs."] Section 4956, page 9.--Importation by individuals of the foreign edition (two copies at any one time) is abolished except with the assent of the American copyright proprietor, and the two copies at a time are throughout reduced to one. The privilege of societies and institutions (under the act of October 1, 1890) is no longer to include the importation, without such assent, of "a foreign reprint of a book by an American author copyrighted in the United States unless copies of the American edition can not be supplied by the American publisher or copyright proprietor;" and the society or institution must be incorporated, unless it be a "college, academy, school, or seminary of learning" or a "State school, college, university, or free public library." Section 4957, page 9.--The particular language of the entry in the record books of the copyright office is no longer specified. Section 4959, page 11.--Deposit of "subsequent editions" not required unless the "changes" which they contain are "substantial" enough to induce a new registration. Section 4960, page 12.--Provisions of act of March 1, 1893, dropped as no longer effective. Section 4962, page 13.--_Notice._--The date and the word "by" no longer required in the notice. The abbreviation "Copr.," and in certain cases the letter C within a circle, permissible instead of the full word "Copyright." Sections 4963, page 13; 4964, page 14; 4965, page 15; 4966, page 16.--Penalties imposed for acts in the nature of misdemeanors no longer to be shared by the United States with "a person" suing for them; sums recovered by way of compensation to the copyright proprietor not to be shared by him with the United States. All infringements willful and for profit made misdemeanors, and the remedies provided by sections 4965 and 4966, including the specifications of a definite sum for each infringing copy, etc., and a minimum and maximum total are expressed definitely as compensation to the copyright proprietor rather than penalties. Section 4964, page 14.--Witnesses not to be required for the written consent of the copyright proprietor. Act of March 3, 1891, page 18.--Only one fee to be required in case of several volumes, or numbers or (in certain cases) parts of a series deposited at the same time with a view to a single registration. Act of January 7, 1904, page 19.--Omitted as obsolete. I have particularly noted in this memorandum the points in which the bill intentionally abrogates existing law and the more significant respects in which it modifies or amplifies it. The respects in which it intentionally abrogates existing law are very few, as shown in Part B of the memorandum. The phraseology of existing law is only here and there recognizable in the bill. That is because the bill attempts to be systematic and organic, and, second, because it has sought general terms, wherever descriptive, rather than particular specifications. Especially has it preferred this where the specifications might be limiting. This, as I have noted in the memorandum submitted to you, is particularly illustrated by the treatment of the "subject-matter." The bill contains only the general statement that the subject-matter is to include "all the works of an author," leaving the term "author" to be as broad as the Constitution intended; and, as you know, the courts have followed Congress in construing it to include the originator in the broadest sense, just as they have held "writings," as used in the Constitution, to include not merely literary but artistic productions. After this general statement certain specifications follow in the bill of particular classes under which a particular application is to be made in the office, but these specifications are coupled with the proviso that they shall not be held to limit the subject-matter. The specifications so far as possible also substitute general terms for particulars. They omit, for instance, the terms "engravings, cuts, lithographs, painting, chromo, statues and statuary." They assume, however, that all of these articles will be included under the more general terms, as "prints and pictorial illustrations" or "reproductions of a work of art" or "works of art" or "models or designs for works of art." The term "works of art" is deliberately intended as a broader specification than "works of the fine arts" in the present statute with the idea that there is subject-matter (for instance, of applied design, not yet within the province of design patents), which may properly be entitled to protection under the copyright law. The attempt to substitute general terms for particulars is evidenced also in the definition of the right, and of the acts which constitute an infringement of the right. The present statute (sec. 4952) defines the right to consist in the sole liberty to do certain things. The bill (sec. 1) defines the right to be the sole and exclusive right to do certain things, and it specifies those things; but its specifications are in terms very different from those in the present statute. The present statute (secs. 4965 and 4966) specifies certain acts which are to be deemed an infringement. The bill, having defined the right of the copyright proprietor as the exclusive right to do certain things, defines an infringement to consist in the doing or causing to be done without his consent of any of those things, the right to do or authorize which is exclusively reserved to him. It contents itself with this, adding only the one specification that "any reproduction," without his consent, "of any work or material part of any work in which [his] copyright is subsisting," shall be an infringement. So as to the person who may obtain copyright: The present statute mentions the "author, inventor, designer, or proprietor," and elsewhere the "originator." The bill rests with the term used in the Constitution, "author," adding only "proprietor," which is not merely in the existing statutes, but has been construed in a series of judicial decisions. Copyright consists of the exclusive right within a defined period to do certain things with certain subject-matter and to prevent other people from doing these things. The fundamental provisions of the copyright law are therefore these four: What is the subject-matter? What are the acts? How may the exclusive right to do them be secured? And who may secure it? Upon the third point, "How may the right be secured?" the bill modifies substantially the existing requirements of law. These make deposit and registration in the copyright office a condition precedent. They require the deposit to be at least coincident with the publication, and they stipulate that failure to comply precisely with this requirement shall avoid the copyright ab initio. The bill, in section 9, initiates the copyright from the date of the publication of the work, with the notice of copyright affixed. So, in effect, does the present law initiate the copyright from that date, provided the deposit and registration be effected then; but by the bill the publication with notice not merely initiates the copyright, it "secures" it. That is the expression used in the bill. Deposit and registration in the copyright office are still requisite, but a reasonable period after publication is allowed for them. The period is thirty days, and in the case of error or omission may be even an entire year, but with the proviso that after the thirty days no action for infringement may be brought until these requirements have been complied with. The right is to be exclusive for a limited period. This period is now twenty-eight years, with a possible renewal for fourteen years--a maximum, therefore, of forty-two years. The bill abolishes renewals and provides for three terms, according to the subject-matter. The shortest is twenty-eight years for labels and prints relating to articles of manufacture heretofore registered in the Patent Office, but which the bill proposes to be taken over into the copyright office. The second term, fifty years, is substantially identical with the present possible maximum of forty-two. It applies to some original and to all derivative works. It would probably cover the majority of copyright entries during any particular period--the majority in number, I do not say in importance. The longer term--the life of the author and fifty years after his death--applies only to original works, but applies to most of those. As to the merit of these terms, Mr. Chairman, and their necessity you will hear discussion. I merely call your attention to them with, however, these suggestions, which I feel in duty bound to communicate, because they have been so insistently urged upon us: First, that the present term, a maximum of forty-two years (and that a conditional maximum), does not insure to the author his copyright even throughout his own life, and it makes no certain provision for his immediate family after his death. These are admittedly grave defects, and they are perhaps not met by the fact--it is a fact--that at present the privilege of renewal is taken advantage of by only a small percentage of the authors or their families. The second is, that a term as long as life and fifty years exists in fifteen countries, including France; that England, with the minimum term of life and seven years proposes a term of life and thirty years, and that Germany, with a term of life and thirty years, is discussing--informally thus far, but is discussing a term of life and fifty years. The third suggestion is that a common disposition to question a long term for copyright, on the ground that a short term suffices for patents, is based upon false analogy. Literary and artistic productions and useful inventions may be equally the creations of the mind, and they are coupled in the Constitution; but they are coupled, it is pointed out, only as deserving protection. Their character, and the duration of the protection required by each, may be very different. It is alleged to be very different. The monopoly is different; the returns to the creator are different, and the interests of the public are different in the two cases. The monopoly by patent in an invention is a complete monopoly of the idea. The monopoly by copyright in a literary or artistic work is a monopoly merely of the particular expression of the idea. The inventor's exclusive control of his idea, it is said, may bar innumerable other inventions, applications of his idea, of importance to the public, while the author's or artist's exclusive control of his particular expression bars no one except the mere reproducer. The returns to an inventor are apt to be quick; the returns to an author are apt to be slow, and the slower in proportion to the serious character of his book, if a book. The returns to a successful inventor are apt to be large; the returns to even a successful author or artist are not apt to be more than moderate. Then the idea, it is said, covered by an invention or discovery, may concern the essential welfare, even the lives, of the community, and should be freely available at the earliest possible moment not unjust to the creator of it. Now, it is remarked that no particular book, at least none currently copyrighted to-day, can be said to be essential to the welfare or protection of the community. Many a man's pleasure may be enhanced by it, some men's profit; but no man's essential welfare depends upon it, and no man's life, save, perhaps, the author's own. I communicate those suggestions as having been pressed upon us. In no respect are the present statutes alleged to be less satisfactory than in their provisions for the protection of the right, and redress to the copyright proprietor for invasion of it. One inconvenience is that they provide a different class of remedies and recoveries for different subject-matter; another is that they seem to confuse the duty of the Government to punish a deliberate infringement as it would punish any other theft with the right of the copyright proprietor for compensation for his particular losses. The bill attempts to provide uniform remedies, and it divorces the civil action from the criminal. As the memorandum states it, "Penalties imposed for acts in the nature of misdemeanors are no longer to be shared by the United States with a person suing for them;" nor "are sums recovered by way of compensation to the copyright proprietor to be shared by him with the United States." Nor is his right to recover such sums to be imperiled by the necessity of proving that the defendant has committed an offense against the community as well as profited at his expense. The deliberate theft of a dramatic or musical composition by the willful performance of it for profit, without the assent of the owner, author, or copyright proprietor, is now by law a misdemeanor. The conference could not see why this provision should not apply to any infringement which is both willful and for profit, and section 25 of the bill extends it to all such. The existing provision (sec. 4966, Rev. Stat.) which provides remedies and penalties for infringement of dramatic and musical copyrights, is of great moment to the dramatists and composers; and now that it is merged in the general provisions of this and other sections of the bill they are in great apprehension lest it may suffer accident, if accident befall these. To guard against this the general repealing clause of the bill excepts and continues in force section 4966 of the Revised Statutes, but it does so with the intention that this exception shall be dropped in case the general provisions stand. The reason or merit of these and other provisions of the bill will at the proper time have to be made clear to you, if challenged. That is no part of my present duty, which is merely to introduce the bill to your attention, with some explanation as to how it came to be, and some note as to its leading features. But I except two matters, and I do so to avoid misapprehension; and I feel free to do so because both involve the administration of the copyright office. One is as to fees. The impression has gone out that the fee for registration is to be doubled. The fee for registration is now 50 cents, but 50 cents additional is charged for a certificate when furnished. The proposed fee is $1, but this is to include the certificate, which is to be furnished in all cases and as a matter of course. It ought to be furnished, in the opinion of the office, and no claimant of copyright ought to rest easy without it. It is the evidence of registration and deposit--indispensable formalities, even hereafter--and it is now to be prima facie evidence in a court of law of the facts which it sets forth. If the copyright is worth the 50 cents for the registration, it seems certainly worth the additional 50 cents for the certificate. But I note here that objections are to be raised to the provision for fees, and particularly as working hardships in some cases not made exceptions, as the case of a series of studio photographs registered under one title at the same time is made an exception. You will have some suggestions as to cases in which the exaction of this fee, without some special modification in certain cases, would work an undue hardship. On the other hand, the bill tends to reduce the aggregate fees payable by any one publisher and the aggregate receipts of the office by enabling a number of volumes of the same work, and in the case of photographs, prints, and like articles, an entire series, if registered at the same time, to be registered for a single fee. The other matter is that of copyright deposits. The volume of these is now prodigious. During the last year alone the articles deposited exceeded 200,000 in number. A large proportion of these are of great value to the Library and are drawn up into it. The rest remain in the cellar. The accumulations in the cellar now number a million and a half items. Many of these would be useful in other Government libraries; for instance, medical books in the library of the Surgeon-General's Office. Some of them might be useful in exchange with other libraries. A few might have value in exchange with dealers. The remainder are a heavy charge upon the Government for storage and care, without any corresponding benefit. They ought to be returned to the copyright proprietors if they want them, or, if not wanted, destroyed. Such dispositions are, I believe, already within the authority of law; but it is fair that they should be expressed. The bill (secs. 58 and 59) definitely expresses them. I ask your attention to them in due course. They have been accepted by the conferences, and therefore by the interests outside of the Government most nearly concerned with their operation. But they may awaken some apprehension elsewhere because of a quite common misunderstanding of the significance of the deposit and its relation to the copyright protection. The original purpose of such deposits was the enrichment of the Library. This is clear from their history, both in this country and abroad. They were made a condition of securing copyright, but they had no continuing relation to the copyright once secured. In England, for instance, the copies required (now five) are to be for the use of the libraries--five libraries--no one of which is the office of registration for copyrights. The earliest act in this country was that of Massachusetts, in 1783, which exacted a copy as a gift to the library of the University of Cambridge, Harvard University, "for the use of said university," which was not the office of copyright. The earliest act providing for deposit in the Library of Congress, that of 1846, provided that the copyright proprietor should give one copy of the book to this Library, and at the same time it provided that he should give one copy to the library of the Smithsonian for the use of that library. In 1867 the library of the Smithsonian became a part of the Library of Congress. The act of 1870 provided two copies, both to be addressed to the Library of Congress. But by that same act of 1870 the Library of Congress became the office of registration for copyright; and from that time, and because the failure to deposit not later than the date of publication actually voided the copyright, an impression has grown up that the articles deposited are an integral part of the record of registration, and have a peculiar sanctity as such. The fact of the deposit has been and will be an integral part of the record, and in times past this could most readily be proved by the copies themselves, the law providing neither for a certificate to the claimant admitting the receipt of the deposit nor an entry in the official record showing it. But hereafter the fact of deposit will be proved by the certificate itself. There is an impression--a very natural one, too--that the copies deposited are necessary evidence of the thing copyrighted, and essential as such in litigation. Now, during the past thirty-six years the copyright office has record or memory of only four cases in which articles deposited have been summoned into court, and an authority on copyright litigations remarks that in three of these he is quite certain that the reason was a fanciful one, and in the fourth he did not see any necessity for it. For the matter of that, however, there is little prospect that any article of sufficient importance to be a subject of litigation would be deliberately destroyed, or would fail to be drawn into the permanent collections of the Library--at least one copy of it. Mr. Chairman, having indicated something of what the bill is, let me say a word as to what it is not, in intention. First. It is not an attempt to codify the common law. The conservative bar was very fearful that it would be. Even more than the present statutes, it leaves to the courts to determine the meaning and extent of terms already construed by the courts. It does this even in cases where the temptation to define was considerable and where foreign statutes attempt a definition. For instance, Who is an author? What is publication in the case of works not reproduced in copies for sale? What is fair use? Now, many such definitions were proposed and lengthily discussed, and omitted because they did not stand the test of the best expert opinion of the most conservative advisers of the conference, particularly the committees of the bar associations. Second. The bill does not, in intention, attempt to regulate relations between authors and publishers which are or may be matter of private contract. Third. It is not an attempt at abstract and theoretic perfection, nor is it an attempt to transplant to this country theoretic or what might be charged to be sentimental provisions of foreign law. It tries to be a bill possible for this country at this time and under conditions local here. It contains, therefore, some provisions which are, in our judgment, neither theoretically sound nor according to modern usage abroad nor satisfactory to particular participants in the conference. These are a compromise between principle and expediency or between one interest and another at the conference, between which we could not decide for either extreme--I mean decide in the sense of bringing before you a suggestion in this particular form. We had not any decision in any other sense; we were not a commission. The bill is a compromise. I doubt if there is a single participant in the conferences whom it satisfies in every particular. Fourth--and I feel really, Mr. Chairman, in justice to the conferences, after their year of labor, impelled to say this--the bill is not a mere congeries of provisions proposed by a selfish group, each member of which was considering solely his own particular interest. It contains, of course, some provisions which concern only particular interests--for instance, the provision as to sound records, or that as to affidavit of domestic manufacturers. But these are easily distinguishable; we suppose and we should hope that they would be distinguished, and particularly so if, as we know to be true in the case of sound records, there is to be definite objection before you against the bill as it stands; and we should hope that that objection, with the arguments of those with whom the proposal originated particularly, should be set aside for special discussion distinct from the general discussion on the bill as a whole. I say there are provisions which concern particular interests, of course, particularly; but these we should hope would be distinguished in your consideration of it. The bill is the result of a sincere attempt, as we have seen it, to frame a reasonable general statute. I say "sincere," and I feel the right to say it because I followed the conferences closely, and had the best opportunity to judge of their temper and disposition. If some of the interests were selfish in one direction, they were met by the selfishness of others in another direction, and both were under criticism from the general advisors and under the influence of the main body. And neither such interests--and I am speaking of history now, of course--neither such interests nor any other participant in the conference initiated the conference, nor determined its composition, nor controlled its proceedings. The conference was initiated by the Copyright Office at your suggestion, Mr. Chairman. It was composed of organizations invited by the office, and it was theoretically held in the office. The Librarian presided at it, and except for the purpose of some formal resolutions it never organized or in any other way passed out of the control of the office. If the bill reveals some selfishness, it is perhaps condonable. It is the selfishness of men trying to protect their own property; for of course, as I have emphasized, the interests that were especially invited to the conferences were those that are concerned in an affirmative way with the protection of the right. The conferences were not generally representative--completely representative--in other respects. The bill has that purpose--that is, for the protection particularly of the property. It comes before you for consideration on the ground that it goes too far. It does not create, of course, a new species of property; it merely recognizes a species of property created by the Constitution and already recognized by statute. Its purpose is simply to secure to the man who has created it a species of property which peculiarly requires the protection of law, because the very act which makes it remunerative to him lays it open to expropriation--that is, the act of publication--and seems peculiarly entitled to the protection of the law, because it is that act, and that alone, which makes it of any use to the public; and of course it secures this protection--not permanently, but only against untimely expropriation. It may be said that the public was not represented at the conferences. The public in this matter would, I suppose, belong to one of four classes: In the first place, the producer, the creator, with his publisher and manufacturer; or, second, one who is to enjoy the work as a consumer; or, third, one who wishes to utilize the work in some other work, or to reproduce and market it for his own benefit, when this can be done innocently; or, fourth, the student and critic of the rights and obligations of property, and of the regulation of this by law. There may be a fifth class, the mere pirate. He was not invited to the conferences, and I suppose he would not be to your hearings. But the innocent reproducer was not unrepresented at the conferences or in the discussions. In fact, most of the producers were also reproducers, and quite insistent upon their convenience as such. The original producers, publishers, and manufacturers were there as of right, and the student and critic through their interest and public spirit. As for the consumers, two considerable groups were actually represented, and more would have been if organizations could have been found to represent them. Others also there spoke for them. But as I understand it, it is in the interest of the consumer just because it is in the interest of the producer that copyright laws were originally designed and were called for by the Constitution; and if this proposed one fails fairly to regard that interest of the consumer, its defects will surely be brought to your attention by the third great estate which is jealous of those interests--the newspaper and periodical press; for the bill is now before the public. Finally, Mr. Chairman, notwithstanding the labor put upon it, the bill is doubtless still imperfect in expressing its intentions; and I have no doubt that while it is under consideration those especially concerned will ask leave to submit to you some amendments of phraseology. I understand that any such amendments proposed by participants in the conferences will be communicated first to the copyright office, so that they may be formulated by the register for your convenient consideration; and the office will gladly do the same for any that may reach it from any other source. The relation of the office to this project has been peculiar, Mr. Chairman, and that alone has excused me in introducing the bill to you. But having introduced it, the office will, with your permission, relapse into its more normal position of informant to your committee on matters of fact, and an adviser when its opinion is asked. With the general structure of the bill, including its phraseology, the office will of course have especial concern. Upon the general principles involved and upon matters of practice the office will naturally have some opinions, and may not avoid ultimately expressing these, even though in doing so it incidentally supports a provision which concerns particularly a particular interest. It can not avoid this where a bill is referred to it by your committee for its opinion, and still less can it do it in the present case where it is itself in possession of the reasons which induce the various provisions and the principles supposed to underlie them. It must, as occasion requires and you think necessary, expound the bill. Mere advocacy, however, Mr. Chairman, of any particular provisions it must leave to others. Mr. Chairman, ordinarily I assume that in such a case as this those who are in a sense proponents of the measure would be heard in the affirmative in argument in support of the measure. It is my understanding that in so far as the proponents can be said to be those who participated in the conferences, they do not care for leave to make any argument as such. Certain of them, representing typical interests, would, however, be glad to submit a word or two in behalf of those interests--a very brief word, no one of them speaking for more than five minutes. We have thus far (which I am under duty to communicate to you) notice of objections to two or three particular provisions and then to the bill substantially as a whole. One of the particular provisions is that against reproduction of copyrighted musical compositions by means of some device or appliance for reproducing it to the ear. Another particular provision is that which, in two respects, curtails the privilege of American libraries to import foreign editions of works copyrighted here. Mr. CURRIER. It does so in more than two respects, does it not? Mr. PUTNAM. The present law permits two; the bill cuts the two to one. Mr. CURRIER. Yes; but there are various other restrictions embodied in the bill, are there not? Mr. PUTNAM. In regard to libraries? Mr. CURRIER. In regard to importation for libraries. Mr. PUTNAM. Yes; there may be other points. I was speaking of the two. Mr. CURRIER. The individuals are cut out, are they not? Mr. PUTNAM. The individuals are cut out. Mr. CURRIER. That is one restriction. Mr. PUTNAM. They are noted as cut out. Mr. CURRIER. The number of books is reduced from two to one? Mr. PUTNAM. In all cases; yes. Mr. CURRIER. Then the phraseology is so changed that it must mean something. When you say, "To any book published abroad," beginning on page 16, "with the authorization of the author or copyright proprietor," what does that mean? Mr. PUTNAM. Page 16 of the library print? Mr. CURRIER. Yes; it is subdivision E, page 16. Mr. PUTNAM. Section 30--"any book published abroad with the authorization of the copyright proprietor"--that is, the authorized foreign edition. Mr. CURRIER. Well, that phraseology is new. Mr. PUTNAM. I was not of the impression that the intent was new in that. It refers to the foreign authorized edition as distinguished from the foreign unauthorized edition, because the importation of any unauthorized edition is prohibited as a fraudulent invasion of the right. It may be, of course. If there is any diminution under that of the present privileges of libraries, there is a group of librarians who desire to be heard. I do not know that they had that so particularly in mind as the exception under subsection 3. Mr. CURRIER. In subsection 3 there is still another new restriction, is there not? Mr. PUTNAM. Yes. Mr. CURRIER. As to the privilege of importation without the consent of the American copyright proprietor, etc.? Mr. PUTNAM. Yes. Mr. CURRIER. That is still another restriction? Mr. PUTNAM. Yes; two copies reduced to one, this prohibition of the importation of the foreign edition of a book of an American author published here of which there is an authorized American edition---- Mr. CURRIER. And the cutting out of the right of the individual? Mr. PUTNAM. And the cutting out of the right of the individual. I was speaking of libraries first; yes. Mr. CURRIER. And then such restrictions as may be embodied in that phraseology? Mr. PUTNAM. Yes; if there is any restriction there, that also. Mr. CURRIER. I understood some two months ago that an agreement had been reached between the publishers and the librarians, satisfactory to both, which was to be embodied in the bill. Was that the proposition that is now a part of the bill? Mr. PUTNAM. I think that can best be answered, Mr. Currier, by Mr. Bostwick, who is here, who was a participant in the conferences in behalf of the American Library Association. That is the general association of this country. Mr. Bostwick and Mr. Hill were the two delegates to the meeting; and Mr. Bostwick will say whether this provision is satisfactory to his association as an association. Mr. CURRIER. I simply desire to say that my mail is filled with protests from librarians and from universities and colleges against this restriction. Mr. PUTNAM. Yes; and as I was saying, Mr. Currier, we have already note of that protest. Mr. Cutter, Doctor Steiner, and perhaps others--certainly those two, however--Mr. Cutter being librarian of the Forbes Library, at Northampton, and Doctor Steiner being librarian of the Enoch Pratt Library, at Baltimore, are here in behalf of remonstrants against any diminution of the present privileges of libraries. I had understood that this provision as it stands had been accepted by the representatives of the association simply as participants in the conference. May Mr. Bostwick state as to that, Mr. Chairman? I only suggest it because you asked the question. The CHAIRMAN. We have concluded that it is best to adopt the suggestion to hear first the proponents of the bill and then, at a later period, hear those who object to its provisions. Mr. PUTNAM. In that case, Mr. Chairman, if you will let me suggest, the interests represented at the conference are easily classifiable. They were the creators of literary productions, the authors; they were the dramatists; they were the composers and the publishers of those productions, the manufacturers, the reproducers; they were these two associations, so far as we had them there, representing the consumers; and then there were the two committees of the American Bar Association representing our general legal advisers. Mr. Bowker is here representing the author class particularly. The CHAIRMAN. We will hear from Mr. Bowker. Mr. SULZER. Mr. Chairman, I would like to have it noted on the record that I have received a letter from former Judge A. J. Dittenhoefer, the well-known lawyer of New York City, who represents the American Dramatists' Club and the Managers' Association, of New York, and who desires to appear at some subsequent time in favor of certain provisions in this proposed law. The CHAIRMAN. Does he desire to be heard if the committee is in favor of them? Mr. SULZER. No; not if the committee is in favor of them. That is the point. The CHAIRMAN. Perhaps that can be taken up, then, at a later date. Mr. SULZER. Yes. STATEMENT OF RICHARD ROGERS BOWKER, ESQ., VICE-PRESIDENT OF THE AMERICAN COPYRIGHT LEAGUE. The CHAIRMAN. Will you please state your name, Mr. Bowker, your residence, and whom you represent? Mr. BOWKER. My name is Richard Rogers Bowker. I speak as vice-president of the American Copyright League, commonly called the Authors' Copyright League. Mr. Chairman, the American Copyright League, for which I speak as vice-president in the absence of its president, Mr. Edmund Clarence Stedman, who regrets in this letter that ill-health detains him in New York, and who desires to be recorded as well satisfied with the bill as a basis for Congressional consideration, and in the absence of our secretary, Mr. Robert Underwood Johnson, of the Century, who has been our sentinel for years in respect to all matters as to copyright legislation, the American Copyright League asks that the first half hour be devoted by your committee to the originators of copyright property. Mr. Clemens, I understand, has reached Washington, and hopes to be present at one of these sessions as a member of the council of our league. Mr. Bronson Howard, the president of the American Dramatists' Club, and also a vice-president of this league, I hope will be present to speak for the dramatists. Mr. Sousa and Mr. Victor Herbert are here to-day representing musical composers. Mr. Frank D. Millet is here as the delegate of the National Academy of Design and of the Fine Arts Federation, and possibly Mr. Carl Bitter, president, or Mr. Daniel C. French, ex-president of the National Sculptors' Association, may also be here. We ask that a half hour be given to those gentlemen presently; and I shall occupy but five minutes or so of that time. The conference, sir, proceeded at its first session on a memorandum which formed the basis for discussion, presented by the American Copyright League; and I mention that to say that that memorandum included two important suggestions which were not incorporated in the bill--one the suggestion that the bill should be, as it were, a group of bills, representing separately and distinctively the literary, dramatic, musical, and artistic varieties of copyrightable property. An honest endeavor was made to do that, but it proved not practicable and workable. Again, members of our council, Mr. Stedman and Mr. Clemens among them, desired very much that the authors should be safeguarded in their relations with publishers by certain insertions in the bill. It was held by the legal authorities that that was not a proper subject of introduction in a copyright code; and on those two points the American Copyright League, I think I am authorized to state, recedes from any possible dissension. And I say it, sir, because there are doubtless many points on which the several organizations would prefer to have additions or omissions. A little girl I knew spoke of a compromise as something where everybody got what they did not want. Now, in that sense this bill is not a compromise. It represents, rather, the consensus of opinion of the originators of copyrightable property, of the reproducers, publishers and similar interests, and of representatives, as Mr. Putnam has told you, of various other interests. On behalf of the league we believe, sir, that you have before you a working basis for a just, broad, clear, workable copyright bill; and we feel confident that such a bill will emerge from your deliberations. We ask you, sir, to keep in mind two vital points: First, that the rights of the producing classes shall be first of all thought of, but not to the detriment of the great body of reproducers and readers, on whom the author classes depend for the possibility of realizing from their productions. As has been said to you, copyright is on a different basis from patents, in that it not only does not interfere with the rights or privileges of others as succeeding inventors, but that the world is the better for any original work contributed by help of the copyright laws to the community without detriment to anyone, and therefore it should have a broader scope before you in copyright legislation than in patent legislation; and we ask that in that view, in that spirit, the rights of the producing classes shall be kept in mind. Secondly, sir, this is a very difficult and complicated question. Those of us who have met in conference have recognized most fully the care, fairness, and wise consideration which have been given to all interests by the copyright office and the difficulties under which a practical bill has been framed. We ask you, sir, in your considerations in the committee and in the discussions in Congress so far as they are shaped by the committee, that you will keep in mind, sir, the importance of keeping a consistent bill throughout these difficult provisions. The copyright office has been of the greatest service to all of us in that very function; and I have no doubt, sir, from our experience, that it will be of the greatest service to your committee. The league had stood for a copyright commission instead of this conference. But when we find this bill, sir, presented as the result of only a year's work, and remember that the English copyright commission took years to produce a draft which has not yet, after nearly a generation, been enacted into law, we can not but express the greatest satisfaction with the result now before you. We do not feel, sir, that any bill can be presented to your committee which does not call for the most careful consideration, for protest from outside interests, and for discussion, not only in your committee and in the halls of Congress, but throughout the public. We do not feel that any such bill would be possible; and I wish very heartily, sir, to record the American copyright league as favoring the fullest discussion and the fullest consideration of any of what may be called the minority interests. We believe that the interests of the office are perfectly consistent with the interests of the public; and in that view, sir, we support most heartily, individually and as members of the conference, the bill which you have before you. STATEMENT OF FRANK D. MILLET. Mr. MILLET. I shall have very little to say, Mr. Chairman. The artists are interested in this bill because, as the committee undoubtedly understands, the copyright of a picture is often, almost always, more valuable to the artist than the original work--that is, of greater money value. We have had long experience with the law, and we have not found that we have been protected. So little protection has been afforded that it is no longer the habit for the artist to copyright his picture. We have gone out of the business of copyrighting, practically, as you will find if you will go to any exhibition, because we have not been able to get any relief in case our work had been infringed upon. We have always objected to the copyright notice which we have been obliged to put on the picture, because it is considered a disfigurement. That is another reason why we have not copyrighted. That has been a very great loss to us as a class. That has been one of the reasons why we prefer, many of us, to spend much of our time abroad. If you will pardon me for a moment I will give a personal instance. I have painted in England and in Europe over twenty years. I never had one bit of difficulty with my copyrights over there, and I have had considerable income from my copyrights; and I think $7 or $8 is about all the money I have ever gotten in America out of copyrights here. Since the conferences began last winter two of my pictures have been reproduced by a journal in New York, one of them in color. They cut off my name and copyrighted the picture themselves. In the case of the other they left my copyright on and published it without my consent. I have absolutely no redress, because the law says that I can get a dollar for every copy found in their possession, and they were not fools enough to have any copies in their possession, of course. I relate this little personal tale, because that is what has been the experience of all the artists, painters, and sculptors. We do not pretend to say that this bill, in these particular cases, or in the first case of notice, meets our highest desire, because we would like to have it exactly as it is abroad, no notice being required whatever. But we met our friends, our dearest foes, the reproducers, and made this compromise, which is satisfactory to us on the question of the notice, as to what we shall put on the picture without disfigurement, and we think that the bill is the best one that we could possibly agree to, and we are all of us fully in favor of the bill as it stands. I thank you. Mr. SULZER. Is the bill as it is drawn at present satisfactory to you? Mr. MILLET. It is satisfactory to us. Mr. SULZER. And you want it passed just as it is? Mr. MILLET. We would like to have it passed as it is. Mr. SULZER. That would protect the artists? Mr. MILLET. As far as we can make out, that would protect us. Mr. CURRIER. Is it the criminal remedy that is provided by this bill that would give the protection you need? Mr. MILLET. That is one of the things. Mr. BONYNGE. What are the new remedies given to the artists by the provisions of this bill? Mr. MILLET. At the end of the bill you will find them. Mr. CHANEY. Just state them from memory. Mr. MILLET. There is a misdemeanor clause that we are very keen on, the same as for the dramatists. We do not see why it should not be a misdemeanor, to apply to us as well as to the dramatists--sections 23 and 25. STATEMENT OF JOHN PHILIP SOUSA. Mr. SOUSA. Mr. Chairman, I would much rather have my brass band here. I think it would be more appreciated than my words will be. [Laughter.] Mr. CHANEY. We would rather have you, just now. Mr. SOUSA. Thank you. Mr. Chairman, I would like to quote Fletcher, of Saltoun, who said that he cared not who made the laws of the land if he could write its songs. We composers of America take the other view. We are very anxious as to who makes the laws of this land. We are in a very bad way. I think when the old copyright law was made, the various perforated rolls and phonograph records were not known, and there was no provision made to protect us in that direction. Since then, the talking machines have come out, and the claim is made that the record of sound is not a notation. There are three ways for the composer to make a living by his music: By sight or by sound or by touch. The notation of my compositions or the compositions of any other composer for the blind must be entirely different from the ordinary, because it must be read by the sense of touch. The notation that is made for a combination of instruments is brought out by sound. The claim that is made about these records is that they can not be read by any notation--simply that no method has been found to read them up to the present time, but there will be. Just as the man who wanted to scan the heavens discovered a telescope to do it. No doubt there will be found a way to read these records. We are entirely in favor of this bill. The provisions satisfy us, and we want to be protected in every possible form in our property. When these perforated-roll companies and these phonograph companies take my property and put it on their records they take something that I am interested in and give me no interest in it. When they make money out of my pieces I want a share of it. Mr. SULZER. They are protected in their inventions? Mr. SOUSA. Yes, sir. Mr. SULZER. And why should you not be protected in yours? Mr. SOUSA. That is my claim. They have to buy the brass that they make their funnels out of, and they have to buy the wood that they make the box out of, and the material for the disk; and that disk as it stands, without the composition of an American composer on it, is not worth a penny. Put the composition of an American composer on it and it is worth $1.50. What makes the difference? The stuff that we write. Mr. BONYNGE. What is the protection by the terms of this bill that is given you? Mr. SOUSA. That in any production of our music by any of these mechanical instruments they must make a contract with us or with our publishers; that they must pay us money for the use of our compositions. The publishers of this country make contracts with the composers, and agree to give them a sum outright or a royalty on sales for each and every copy that they publish and sell. The companies making records for talking machines take one copy of a copyrighted piece of music and produce by their method a thousand or more disks, cylinders, or perforated rolls. If they would buy one copy from my publishers and owners of my copyright and sell that one copy, I would have no objection; but they take the copyrighted copy and make what they claim is a noncopyrighted copy, sell it, and do not give the owner of the copyright a penny of royalty for its use; and they could not do this if the composer had not written it and the publisher had not published it, and I want to be paid for the use they make of my property. Mr. WEBB. Does this affect records already made? Mr. CURRIER. No; it does not affect existing copyrights. Mr. SOUSA. No. That is a sop--I am willing to let it stand for the sake of the future, but I think it is wrong. That is a sop to them, the talking-machine companies, and hereafter they will make money after this law passes on the pieces that I made before the law went into effect. Mr. CHANEY. So that we will get "El Capitan" from the phonographs in various places? Mr. SOUSA. Yes, sir; and I'll get nothing for it; and I am the man that made "El Capitan." [Laughter.] I speak in the interest of the publishers and the composers, and some of them asked me to come here because I could talk from the heart, and I do. I am sure of what I say. There may be some interests opposed to the bill for selfish reasons, but these interests know the bill simply gives us rights we are entitled to. As to the artists, Mr. Millet said that he got $8.75 for one of his pictures. You can take any catalogue of records of any talking machine company in this country and you will find from 20 to 100 of my compositions on it. I have yet to receive the first penny for the use of them. There is another point to consider. These talking machines are going to ruin the artistic development of music in this country. When I was a boy--I was born in this town--in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. To-day you hear these infernal machines going night and day. [Laughter.] We will not have a vocal chord left. [Laughter.] The vocal chords will be eliminated by a process of evolution, as was the tail of man when he came from the ape. The vocal chords will go because no one will have a chance to sing, the phonograph supplying a mechanical imitation of the voice, accompaniment, and effort. On this river, when I was a young man, we went out boating and the music of young voices filled the air. Last summer and the summer before I was in one of the biggest yacht harbors of the world, and I did not hear a voice the whole summer. Every yacht had a gramophone, a phonograph, an æolian, or something of the kind. They were playing Sousa marches, and that was all right, as to the artistic side of it [laughter], but they were not paying for them, and, furthermore, they were not helping the technical development of music. Go to the men that manufacture the instruments that are nearest the people--the banjo, the guitar, and the mandolin--and every one of them will tell you that the sale of those instruments has fallen off greatly. You can not develop music without these instruments, the country singing school, and the country brass band. Music develops from the people, the "folk songs," and if you do not make the people executants, you make them depend on the machines. Mr. CURRIER. Since the time you speak of, when they used to be singing in the streets---- Mr. SOUSA. Well, Mr. Currier, I am 50 years old---- Mr. CURRIER. I was just going to ask you: Since that time, the law has been passed to protect the authors of musical compositions, which would prohibit that. Is not that so? Mr. SOUSA. No, sir; you could always do it. Mr. CURRIER. Any public performance is prohibited, is it not, by that law? Mr. SOUSA. You would not call that a public performance. Mr. CURRIER. But any public performance is prohibited by the law of 1897? Mr. SOUSA. Not that I know of at all. I have never known that it was unlawful to get together and sing. Mr. CURRIER. It probably has not been enforced to that extent. Mr. MCGAVIN. You think it ought to be against the law for some people to attempt to do it, do you not, Mr. Sousa? [Laughter.] Mr. SOUSA. Yes. Mr. CURRIER. It is possible that that has deterred the young people from singing. Mr. SOUSA. Would you not consider it a greater crime to turn on a phonograph---- Mr. CURRIER. I do not consider singing a crime. Mr. SOUSA. If you would make it a misdemeanor, do you not think it much worse to have a lot of these machines going than to have a lot of fresh young voices singing? Mr. CURRIER. I think a great many people in this country get a great deal of comfort out of the phonograph. Mr. SOUSA. But they get much more out of the human voice, and I will tell you why: The phonograph companies know that. They pay Caruso $3,000 to make a record in their machine, because they get the human voice. And they pay a cornet player $4 to blow one of his blasts into it. [Laughter.] That is the difference. The people, the homes, want the human voice. First comes the country singing school, and next comes the country brass band. Let us do something to help them. You can do it by making these people pay me for everything that I compose. [Laughter.] STATEMENT OF VICTOR HERBERT, ESQ. Mr. HERBERT. Mr. Chairman and gentlemen, it is hardly necessary for me to add anything, I think, to Mr. Sousa's statement. I think he has made the question very plain and clear. I would like to say this, that both Mr. Sousa and I are not here representing ourselves as individuals and our personal interests, but we stand here for many hundreds of poor fellows who have not been able to come here--possibly because they have not got the price--brother composers whose names figure on the advertisements of these companies who make perforated rolls and talking machines, etc., and who never have received a cent, just as is the case with Mr. Sousa and myself. I do not see how they can deny that they sell their roll or their machine, because they are reproducing a part of our brain, of our genius, or whatever it might be. They pay, as Mr. Sousa said, the singer who sings a song into their machines. They pay Mr. Caruso $3,000 for each song--for each record. He might be singing Mr. Sousa's song, or my song, and the composer would not receive a cent. I say that that can not be just. It is as plain a question, Mr. Chairman, as it could be, to my mind. Morally, there is only one side to it, and I hope you will see it and recommend the necessary law. Mr. CURRIER. Just an incident: The talking machine company that pays a singer gets no protection on that record under the law, either, does it? Mr. HERBERT. I think they do. Mr. CURRIER. Could not a competing talking machine company immediately reproduce those records? Mr. HERBERT. Well, they would go for them. Mr. CURRIER. I have an impression that there is no law under which they could. Mr. HERBERT. I think they would. Mr. CURRIER. I think there is no protection at all. Mr. HERBERT. I know that we are not protected. Since the courts have held that the perforated roll is not an imitation of the sheet music we have absolutely no ground to stand on. STATEMENT OF MR. HORACE PETTIT. Mr. PETTIT. I represent the Victor Talking Machine Company. While I am not here as one of the advocates or proponents of the bill, it is very fitting, I think, at this time, immediately after Mr. Sousa's and Mr. Victor Herbert's appearance, that I should state what we have to say in regard to the talking machines. It may be that Mr. Herbert and Mr. Sousa have been somewhat abused by the talking-machine companies. They, however, certainly do not show it in their appearance. Our position is to be equitable and just in the matter. We believe that there should be protection, and we are willing that this bill, with certain amendments we have to suggest, should be passed, substantially on the lines indicated, so that the composer should have the protection against his music or his compositions being copied on a record of a talking machine; with the understanding, however, that it does not apply to subsisting copyrights. I believe that is the understanding as expressed, although there is some ambiguity in the language, and therefore I would suggest that section 3, in that regard, be modified, either by striking out the section or by adding to it. Section 3 reads (reading): SEC. 3. That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting, but without extending the duration of such copyright. I therefore would add to that, in view of that somewhat ambiguous language: _And provided_, That no devices, contrivances, or appliances, or dies, or matrices for making the same, made prior to the date this act shall go into effect shall be subject to any subsisting copyright. This, I believe, is the intention of the framers of the bill, although it is somewhat doubtfully expressed. So much in that regard. Further, gentlemen, if the talking machine companies are to pay the author and composer, as they will under this act if passed, a royalty on the copyrighted compositions, the talking machine companies should also be protected. We might pay Mr. Herbert or Mr. Sousa or Mr. Caruso, or any of the opera singers, a thousand dollars for making a record. It is perfectly possible, within the known arts, for that record, after we have made it, to be reproduced by a mere copperplating process by somebody else and copied, so that we would pay the thousand dollars or so and have no protection against the party manufacturing a duplicate of it. Therefore, not only for that reason, but for the other reasons which I shall briefly mention, the talking machine manufacturers should be entitled to register the particular records which they prepare, and that, therefore, should be included in the act. The bill evidently is intended to cover talking-machine records, although it is somewhat doubtfully expressed. Section 4 is the section upon which everything more or less hangs, and that is [reading]: That the works for which copyright may be secured under this act shall include all the works of an author. That is all that it says in that regard. The purport, however, is to cover substantially everything that was covered by the former copyright act. In section 18 the different things copyrighted are specified, in which section the duration of the terms are provided. Section 18 states, for instance: For twenty-eight years after the date of first publication in the case of any print or label relating to articles of manufacture. Then comes a proviso, and then: (b) For fifty years after the date of first publication in the case of any composite or collective work; any work copyrighted by a corporate body or by the employer of the author or authors; any abridgment, compilation, dramatization, or translation; any posthumous work; any arrangement or reproduction in some new form of a musical composition; any photograph; any reproduction of a work of art. I would suggest that you include in there, on line 14 of page 14, after the word "composition," the words "any talking-machine record;" so that there would be no room for doubt but what talking-machine records are intended to be included. For this purpose I would also amend section 5 (p. 4, lines 2 and 3) by adding between lines 2 and 3, before the word "Phonographs," the following: "(j) Talking-machine records." I want to say one more word in that regard: The talking-machine record is a new art. At the time that the former acts were passed and the Revised Statutes it had not acquired the state of perfection in which it is to-day. The talking machine is a writing upon a record tablet--not to be read visually, but audibly to be read through the medium of a vibrating pencil engaging in the record groove. This reproduces the thing that is uttered, in the characteristic manner in which it is uttered, and therefore that particular thing ought to be the subject-matter of a property right. For instance, we might say that a particular piece would be sung or played by some country brass band, such as Mr. Sousa alludes to. The instrumentation there of that particular piece as recorded would be as different from the instrumentation of the particular piece when played by Mr. Sousa himself, from the stage of one of the great opera houses, as could be imagined; and what should be protected there is the particular instrumentation as it is played by Mr. Sousa, as he has rendered it. The same thing applies to any orator, or any actor, or any recitationist. It is a picture of the voice, as perfectly as a photograph is the picture of a man, or of a thing; and all the personality and all the characteristics of speech of the man uttering it are there recorded. Mr. BONYNGE. Do you mean that if that lecturer delivers the lecture to one of the talking machines that you should take a copyright upon that disk, or whatever it is, that record, I suppose is what you call it, so as to prevent him from giving another reproduction of the same lecture to another talking machine? Mr. PETTIT. No, sir. That would be his right. His lecture is copyrightable. He has a perfect right to copyright that in the ordinary manner, and he has the further right, if he pleases, to have it copyrighted through the means of a talking-machine record, or, with his permission, we could do so. But wherever the thing is primarily copyrighted we could not use it in any sense without his permission. Mr. BONYNGE. Yes; but after he has copyrighted it and you have got his permission to use it in your particular talking machine and have paid him whatever you may have agreed to pay him as compensation for the use of it, would you seek to prohibit him from giving that same lecture to another talking machine? Mr. PETTIT. That would depend entirely on the terms of the contract; but that is not the idea at all. It is merely the means of recording a voice, the production of a particular man or band, or instrumentation, with all the characteristics of that particular voice or instrumentation, which we think should be subject to copyright. Mr. CHANEY. Do you not think, then, if you want that sort of an amendment to section 18 that you should also amend section 4? Mr. PETTIT. No, sir; I do not think that is necessary. Mr. CHANEY. You think that includes it? Mr. PETTIT. I think section 4 is broad enough to include it. You will understand that section 4 is understood to include a photograph. It is understood to include everything which is the subject-matter of copyright. Mr. CHANEY. I was just about to ask this: Understanding that this talking machine is a new arrangement, and was invented later than the date of the original copyright law, by that very fact it might be necessary to mention it in section 4. Mr. PETTIT. Well, I assumed that the word "author," as used by the Librarian of Congress in presenting the bill, was sufficiently broad to include anything which was originated of that character: and, as interpreted by the courts, for instance in the Sarony case (111 U. S. Repts., 59), it has been decided that the word "writing" was broad enough to include a photograph, and that therefore it would not be necessary to amend section 4, provided section 18 had specifically in it the words "talking-machine record," showing that it was meant to be included. Of course I should not object to including it. I should not object at all to having section 4 amended for that purpose, but I doubt whether it would be necessary under the circumstances. Mr. CHANEY. You would be satisfied without its amendment? Mr. PETTIT. I think so, provided the talking-machine record was inserted in sections 5 and 18. There should be no question but that the particular characteristic utterances of a singer, or recitationist, or of an actor, or of an orator, or the particular instrumentation of a pianist, or leader of an orchestra, etc., independent of the composition itself, whether it is copyrighted or not, should be equally entitled to protection, as a photograph or reproduction of a work of art. The present-day thoughts and ideas may be recorded and reproduced through this new form of writing--that is, by recording the uttered sound upon a properly prepared surface in a sound groove, by which the varied undulations of the voice are formed in the groove by corresponding undulations, lateral or vertical. Here we have a true writing of the voice, recording uttered sound, recording not only words, thoughts, and ideas, but also recording the special particular expression and characteristic method of speech employed by the person uttering the sound. In other words, we have the exact voice, with all its individuality recorded, to be reproduced through the medium of the reproducing device employing a stylus operating in the groove. Certainly a sound record is within the contemplation of the Constitution and should be unquestionably included in this proposed new act relative to copyrights. It matters not whether the subject-matter of the record is otherwise copyrightable or not. If the piece played is copyrighted as a musical composition it can not be reproduced on a sound record, in accordance with the bill, without the permission of the composer. A Paderewski, however, may play the copyrighted selection, and a record of his rendition of it, with all his personality and individuality thrown into the piece, should be entitled to a copyright on a sound record for reproducing purposes. This is true, also, of the voice of a Caruso or a Melba singing either a copyrighted or uncopyrighted piece. It is true, also, as a further illustration, of the recitation by Henry Irving of "Eugene Aram's Dream." What is here copyrighted in these records is the individuality and personality of the rendition by the performer. It is the picture of the voice or of the instrumentation as, for instance, a copyrighted photograph is a picture of a person or thing. Should another performer play the same piece played by a Paderewski the personality of Paderewski would be absolutely wanting, and the same difference between the two performances of the same composition would be in the respective sound records as would exist at the actual performance of the respective pieces. The same differences between Caruso's rendition of a selection from Rigoletto and a concert-hall singer's rendition of the same would exist in the sound record and the reproduction therefrom as would exist in the actual singing of the selection. This is true regarding the personality of every voice and instrumentation recorded. A large portion of the selections, musical and recitational, on talking-machine records are not copyrightable or copyrighted. These records, however, with all their originality, personality of the recitationist or singer, and peculiarity of arrangement, etc., should be copyrighted, and the private competitor prevented from purloining an artistic and characteristic production. So-called talking-machine records in this respect differ quite materially from the mechanical organ and piano for the reason that a so-called talking-machine record is an exact record of all the modulations, and all the characteristic articulations of the voice, as well as of all the characteristics of an instrumentation. In other words, it is an exact picture of all the merits and demerits of the original, and the original is reproduced with an exactness, so that frequently, at a distance, in the present perfected state of the art, the reproduction may very well be mistaken for the original. This record of the voice and instrumentation for sound reproducing is an art which was not commercially available or perfected when the earlier copyright laws were passed, and therefore was not included. The following were submitted by Mr. Pettit at the meeting of June 8, 1906, embodying his proposed amendments to the bill: JUNE 7, 1906. _To the honorable Joint Committee of the Senate and House of Representatives._ GENTLEMEN: Referring to the proposed bill, "To amend and consolidate the acts respecting copyrights," now before the committee, I would propose the following amendments: Amend section 3 (p. 3, line 8) by adding continuously at the end of said section the following: "_And provided_, That no devices, contrivances, or appliances, or dies, or matrices for making the same, such as referred to in clause (_g_), section 1, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright." Amend section 5 (page 4, lines 2 to 3) by adding between lines 2 and 3, before the word "Photographs," the following: "(_j_) Talking-machine records." Amend section 18, clause (_b_), (page 14, line 14) by adding between the word "composition" and the word "any" the words "any talking-machine record." Amend section 23 by striking out from the clause marked "First" (page 17, lines 18 to 20) the following: "or any device especially adapted to reproduce to the ear any copyrighted work." Amend section 23 by inserting in the clause marked "Fourth" (page 18, line 4), between the words "of" and "all," the following: "any device, contrivance, or appliance mentioned in section 1, clause (_g_) and." These amendments to section 23 are for the purpose of making the penalty relative to unlawful use of devices, etc., enumerated in section 1, Clause Z, one dollar instead of ten, which latter amount is excessive. It puts the device for reproducing sound on basis of books, etc., instead of in the class of paintings, statuary, or sculpture. A brief memorandum of argument will be submitted later. Senator SMOOT. I would like to ask Mr. Sousa a question. I was very much interested in your statement, Mr. Sousa, pertaining to talking machines taking the place of the human voice, and I will ask you this question: If you were protected in your productions and received a royalty from the talking machines, would that lessen the use of the talking machines any and strengthen the use of the voice and the brass band and the home choir, and so on? Mr. SOUSA. I do not think so, but I think it will reduce two wrongs to one. Senator SMOOT. Then, it is simply a question of your receiving the royalty that you think you are entitled to? Mr. SOUSA. Yes, sir. Senator SMOOT. I think there are other causes besides the general use of the talking machine that account for the fact that there is less singing than there used to be. I think we do not live quite as close to nature as we used to, and that that is what used to make us sing. Mr. SOUSA. That is very true. But the more leeway you give the talking machine the greater encroachments they will make. If they are made to pay a royalty on all compositions that they use, perhaps they will not have so many bad ones in their records. [Laughter.] Senator SMOOT. That is what I intended to find out, as to whether it was simply a personal affair. Mr. CAMPBELL. Is not the real reason that if it protects you and other composers, there is an incentive to you to compose? Mr. SOUSA. Oh, yes; I can compose better if I get a thousand dollars than I can for six hundred. [Laughter.] Mr. CAMPBELL. That is the real reason. STATEMENT OF PAUL FULLER, ESQ., OF NEW YORK. Mr. FULLER. My original rôle, Mr. Chairman and gentlemen, was as one of the members of the Bar Association of New York, and as chairman of the committee to express to you gentlemen all the efforts that had been made and the most extraordinary result that has been accomplished from conflicting interests in getting up the framework of this bill, and to say on behalf of a number of the conferees, we will call them--the American Publishers' Copyright League, the America Publishers' Association, the National Academy of Design, the Fine Arts Federation, the Music Publishers' Association, the American Library Association, the Print Publishers, the Engraving Copyright League, the United Typothetæ, and the National Typographical Union--that they felt that a great achievement had been reached in getting the framework of this bill in its present condition. It is in such shape now that when anything is the matter with it we know where to apply the remedy. In the present chaotic condition of the copyright laws it would require an X ray to find where the mistake was and how to remedy it. I did not intend to say more than a word, but the suggestions made by the last speaker, Mr. Pettit, are of so vicious a character--not intentionally so, but they show precisely how a good bill can be made bad--that I am going to extend my remarks for the five or ten minutes required to point out why they should not be regarded at all. For instance, take section 3. Our friend wants to alter that, and it is absolutely unalterable if justice and common sense are to prevail. All that section says is that the copyright shall extend to all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting. If there is no copyright subsisting to keep a man from singing my song through a phonograph, there is no harm done. If it is subsisting, he must pay the penalty, and the courts will ultimately determine that. The question is now before the courts. It seems to me strange that any court should hesitate to say that a man who not only copies my notation, but who actually reproduces the music, the sound, should not be required to pay me for that privilege. If a man engraves my music and sells it by the sheet, he is a counterfeiter, and I can get money from him and punish him, but if he does more than that--if he completes that counterfeit to the extent of the reproduction of the actual sound that the composer had in his brain when he put it there--they say he has not imitated. That question is before the courts. Do not touch it. Do not touch it. This new law makes it certain for the future, but do not endeavor to touch the past. Let the courts decide what the present law is. I say that the present law will protect these gentlemen from that piracy--because it is the ultimate form of piracy. It goes further than the reproduction of the composer's music sheet. It reproduces the sound. So that they have taken everything from the music man when they reproduce it on the disk. Therefore I say leave this provision in the bill: "And all matter reproduced therein in which copyright is already subsisting." Do not touch it. In section 18 my friend (Mr. Pettit) wants to have the disks copyrighted. Mr. Bonynge put his finger right on the point of that proposition, and perhaps it is unwise for me to say anything further. That is a patentable device, and it has been patented, and there is nothing original on that disk--nothing original to the company that makes that disk. The company has borrowed it or bought it or stolen it from somebody else, and they want to copyright that. For heaven's sake, let the copyright stop somewhere. Mr. Bonynge said: "Would you prevent the man who sang into your phonograph, or talked into it, from singing or talking into any other?" Certainly not. It is not an original production. It is not the work of an author or composer or artist. There is nothing intellectual about it, except that it is scientific, and the scientific part of it is protected by his patent. The reason I am so emphatic about that is that when you endeavor to put in the ideas of patents and the protection of inventions into this law you dislocate it and disarrange it. Senator LATTIMER. The musician may memorize that music, and may entertain an audience with it, but he can not sing it into a phonograph; is that it? According to your position, as I understand it, the singer may take the music of Mr. Sousa, commit it to memory, and may stand before an audience and entertain the audience with Mr. Sousa's music and reproduce it to the audience, but he can not reproduce it in a phonograph? Mr. FULLER. If he has paid Mr. Sousa for the privilege of that public performance. But he can not, at the same time, under the payment for the privilege of a one-night stand, sing it into a phonograph and give it to a million people all over the country. Mr. BONYNGE. And he can not give that public performance unless he has paid Mr. Sousa his royalty? Mr. FULLER. No. Mr. MCGAVIN. Would not the copyrighting of this phonograph record give the musician, say Mr. Sousa, double protection? He already has the protection of the copyright on his sheet music, has he not? Mr. FULLER. Yes. Mr. MCGAVIN. And he would have the further protection of the copyright of the music as it goes into the phonograph, would he not? Mr. FULLER. No; it is the talking-machine people who want a copyright on that, and to hold it against the original composer. Mr. CHANEY. I did not understand Mr. Pettit that way. Mr. FULLER. Mr. Sousa is entitled to it, whether he prints his music on a sheet of paper or whether he prints it on a disk; but the man that prints it on the disk is not entitled to it. That is all. Mr. BONYNGE. He has not originated anything. Mr. FULLER. No. Mr. BONYNGE. Except that the disk is a patentable thing, and on that he has a patent. Mr. FULLER. Yes. The bill is a compromise, and one which every lawyer here and every lawyer who was at the conference thinks he can better; but it is the best that could be had to protect and satisfy all the interests. It has been stated that perhaps none of the interests are entirely satisfied. If that is true, it is the best kind of a bill. There are only two kinds: The bill that is perfect, the one that satisfies everybody--and there is none such; and the one that satisfies nobody, because nobody has had injustice done. Mr. SULZER. Mr. Chairman, I move that two copies of the proceedings of these hearings be printed, one for the Senate and one for the House. Mr. CHANEY. I second that motion. (The motion was carried, and the committee thereupon adjourned until to-morrow, Thursday, June 7, 1906, at 10 o'clock a.m.) COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, _Thursday, June 7, 1906_. The committee met at 10 o'clock a.m., pursuant to adjournment, conjointly with the Senate Committee on Patents. Present: Senators Kittredge (chairman), Mallory, and Latimer; Representatives Currier, Hinshaw, Bonynge, Campbell, Chaney, McGavin, Sulzer, and Webb. Mr. PUTNAM. Mr. Chairman, Colonel Olin was next upon the list of those who were to speak for particular groups in the conference. Colonel Olin participated in the conference as counsel for the American Publishers' Copyright League, and I think that he tends in his remarks to express something of the sentiments of some others of the publishing group. STATEMENT OF STEPHEN H. OLIN, ESQ. Mr. OLIN. Mr. Chairman and gentlemen, a number of different bodies, mainly publishing and reproducing bodies, which participated in this conference, thought it proper, in view of the dignity of this occasion, the unprecedented meeting of the committees of the two Houses, that they should collectively say in very few words what they all thought of this bill, that so they could best serve the committee, so they could best provide that nothing should belittle the force of the language of the President or the clearness of the presentation as to the bill made by the Librarian. These bodies who have authorized me to speak in their behalf in this matter are the Academy of Design, the Fine Arts Federation, the American Publishers' Association, the American Publishers' Copyright League, which two bodies include practically all the publishers of the United States; the United Typothetæ, which include all the great employing printers of the United States; the Music Publishers' Association, some forty-two music publishers who, by habit, not only represent themselves but those musicians who rely upon them for protection; the Photographers' League of America, the Print Publishers' Association, which two bodies represent largely the illustrating interests of the country; the International Typographical Union, which, as the committee knows, represents the typesetters and printers; and finally the American Library Association, wish me on their behalf to say that this bill in its present form has their substantial approval. It is understood that suggestions of modifications as to detail may be made by these organizations individually through the Librarian of Congress; and I submit their signed paper to that effect to the committee. Mr. Chairman, it seems to me that this simple statement on behalf of these bodies carries a very strong prima facie argument in favor of this bill. The greater part of the effort of the authors of this bill has been to provide in that field of copyright which Congress has already bounded and established, and which the existing law creates, a reasonable and orderly regulation; to provide against these conflicts and uncertainties and difficulties which the repeated amendment of the law has brought about. I think everybody would, further, be glad if there could be such a bill as most men could read with some intelligence; that would not need not merely a lawyer, but a copyright lawyer, to interpret. I think most men would be glad, furthermore, in view of the importance of international copyright, if it were such a bill as an intelligent foreigner could understand and an intelligent foreign lawyer could advise about, and such a bill as that the people who are used to it here would thereby be taught something of the general copyright law and could better understand foreign rules. But at any rate, these organizations whose names I have read to you represent, with some few exceptions, roughly, the whole body of men interested in the actual working of the law. Most of them, I think, except those who are purely authors and creators, like the arts associations, have at some time or other been on each side of a copyright controversy. In their business some of them are owners of copyrights and desire to enforce their copyright as far as possible, and most of them are also desirous at times of using literary or artistic matter which is protected by copyright, and they desire that the law shall be precise, so that they can understand their rights and not unwittingly be guilty of offense. So, for all these reasons, it seems to me that when they come to you and say, substantially, "This law is satisfactory to us," you may be sure that prima facie there is a law here that is an improvement on what at present exists, and which, on the whole, will give a reasonable and sane regulation of this most important matter. And of course if any of them come to you with special ideas as to improvement, you will hear and pass upon them for what they are worth. I am going to leave that without any argument, because it seems to me the fact itself is persuasive and that it must impress this committee with the substantial value of this bill that has been presented. There is one thing which the committee will naturally scrutinize with great attention, and that is every provision of this bill which in any respect seems to extend the field of copyright as Congress has previously bounded it; that is to say, which gives copyright upon some new article, or extends the term of copyright, or gives copyright to people who did not formerly possess it, or which in any degree limits the right of the public as against the copyright owner. The bill, I think, makes no very large incursion into that region, but it is that region which, I am sure, this committee will principally wish to examine. With your permission, I shall briefly speak of those things which occur to me as to such extensions. First of all, the bill does extend the privilege of copyright to preventing the reproduction of musical sound or spoken words by machinery. That was spoken of before the committee yesterday. All that I can say about it is that this body whom I represent, although some of them have special interests in it (and they wish to be heard on it hereafter), in general look upon the matter as the circuit court of the United States in the second circuit looked upon it in their last decision on the subject, as being a matter germane to the copyright law, relating to the same kind of rights that Congress has hitherto protected, and that they see no reason why such rights should not hereafter be properly protected; and they respectfully refer the committee, so far as their suggestion goes, to the special information and advice of those on both sides of the question who have the greatest interest in it and the greatest capacity to inform the committee in regard to it. The CHAIRMAN. Can you give the citation of the decision that you have mentioned? Mr. OLIN. I can hand it to you. A printed copy of the decision was handed to me yesterday. It has not yet been reported. Mr. CHANEY. That was the decision that was distributed yesterday? Mr. OLIN. Yes; that is the one. The CHAIRMAN. Unless there is objection on the part of the committee, we will have this decision put in the record. (The decision referred to is as follows:) UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT. White-Smith Music Publishing Company, appellant, against Apollo Company, respondent. Judges Lacombe, Coxe, and Townsend. These causes come here upon appeal from a decree of the United States circuit court for the southern district of New York dismissing bill alleging infringement of copyright. The facts are stated in the opinion of the court below. (139 Fed. 427.) Per curiam: The questions raised in these cases are of vast importance and involve far-reaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant. But in view of the fact that the law of copyright is a creature of statute and is not declaratory of the common law and that it confers distinctive and limited rights, which did not exist at the common law, we are constrained to hold that it must be strictly construed and that we are not at liberty to extend its provisions, either by resort to equitable considerations or to a strained interpretation of the terms of the statute. We are therefore of the opinion that a perforated paper roll, such as is manufactured by defendant, is not a copy of complainant's staff notation, for the following reasons: It is not a copy in fact; it is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if true, would establish merely a theory or possibility of use, as distinguished from an actual use. The argument that because the roll is a notation or record of the music, it is, therefore, a copy, would apply to the disk of the phonograph or the barrel of the organ, which, it must be admitted, are not copies of the sheet music. The perforation in the rolls are not a varied form of symbols substituted for the symbols used by the author. They are mere adjuncts of a valve mechanism in a machine. In fact, the machine, or musical playing device, is the thing which appropriates the author's property and publishes it by producing the musical sounds, thus conveying the author's composition to the public. The decree is affirmed, with costs. Mr. OLIN. The second extension or modification of the present rights of the copyright proprietor as against the public are those instances mentioned yesterday by the chairman of the House committee in regard to the exceptions to the prohibition of importation. As the law stands to-day the importation into this country of a book which is copyrighted here is prohibited, and there are certain exceptions, in the first case, of certain libraries and colleges who may import not exceeding two copies in one invoice, and individuals who may import not exceeding two copies in one invoice. This bill makes a modification of the present rule. I would like to call the attention of the committee to the reason why the present law is as it is, and the reason why this suggestion of amendment is made. Of course, prior to 1891 there was nothing like this in the law. The law was perfectly simple, and had been perfectly simple for a hundred years. There could be no importation of the copyrighted article from abroad without the consent of the copyright proprietor. With his consent it could be freely imported. So far as I know there had never been the slightest dissatisfaction on the part of copyright proprietors or of the public with the working of that rule. As a matter of fact, it was to the interest of the copyright proprietor to bring in, I will say, the English edition of the book which he was publishing here, and to sell it--and so far as the public wanted it they always got it--at his shop or at other shops, through the regular channels of trade, so that the public and he alike were perfectly satisfied. Mr. CURRIER. Were there any importations before 1881? Mr. OLIN. Before 1891? I think there were. Mr. CURRIER. With the consent of the copyright proprietor? Mr. OLIN. I think, as a matter of fact, if you went into a bookstore you always found and could buy, at a somewhat higher price---- Mr. CURRIER. That is not the question. Were there any importations of such books? Mr. OLIN. There were, by the copyright proprietors, who put them on sale and sold them through the trade. Mr. CURRIER. Importations solely by the proprietor of the copyright--not by individuals? Mr. OLIN. Yes, sir; not by individuals. Congress undertook in 1891 to do two things: First, to admit to the privileges of copyright the foreigners resident in certain countries; and, second, to require that the manufacture of copyrighted books should be by American typesetters and plate makers here in this country. And they undertook to do these things with the minimum changes in the language of the statute. They inserted a few words in one section, and then a few words in another, and both of the desired results were brought about, just as they exist to-day. Then, in the last part of the discussion in Congress, as I remember it--and I am open to correction as to the historical account--it became apparent that the typesetter was not duly protected if only those changes were made, for the reason that the copyright proprietor, having the free right to import books from abroad, might perhaps comply with the typesetting clause colorably only, in an imperfect way, and might satisfy the public demand for his books by importation of those set up and printed abroad. Therefore, at the typesetters' request, there was imposed a prohibition of importation which affected the whole world, including the copyright proprietor. Nobody could import books. Mr. CURRIER. That was a perfectly satisfactory provision. Mr. OLIN. That was a perfectly satisfactory provision, both to the copyright owner and to the typesetter; but then the general public were heard, and they said "no;" an English edition may be better than an American edition, for one reason or another, and you must not deprive us of the privilege of getting the best books. Libraries were heard, and individuals were heard. And Congress then hit upon this expedient, which was very simple and on the whole has been very effectual. Congress said: But this prohibition shall not apply in the cases mentioned in certain specified sections referred to of the tariff act. The sections of the tariff act referred to enumerated a certain number of classes which Congress had thought were worthy of benefit from the Government to the extent of allowing them to import books in limited numbers free from duty. So there was ready-made for the hands of Congress a certain list of people who import books who might be allowed to benefit at the expense of the copyright proprietor, just as they had been theretofore benefited at the expense of the customs. That is the law as it stands to-day. Then Congress added this further provision, that any individual also shall be allowed to import not exceeding two copies in one invoice on payment of the duty thereon, for use, and not for sale. Like every other provision of a law after it has been duly tested by use, it is fair to bring it before the legislature again and to call attention to its results, and that is especially true where the provision of law was necessarily adopted with haste and was obviously a mere expedient for arriving at a wished-for result. And when this conference convened the publishers said: "To some extent this section has worked badly in certain ways," which I shall now point out. The librarians in libraries and the colleges have generally availed themselves of this privilege, being coupled with the privilege to import without the payment of duty, and have imported copyrighted books in those ways in large numbers. How far individuals have availed themselves of their privilege it is impossible, or at all events would be difficult, to tell; probably not to any great extent. The number of men who care so much for an English edition of a book that they are willing to write for it to a London bookseller and import it themselves is not very large. So far as it goes, the privilege of importation is an inroad on the rights given to the copyright proprietor. It is an inconsiderable inroad so far as most popular books--novels and the like--which have circulation are concerned. The few hundred books that come to individuals here amount to not a very substantial burden upon the proprietor of such copyrights. But there are certain classes of books, expensive to produce, and with a very limited circulation--books of a scientific character, books illustrated with plates--and they circulate among the precise classes; that is, the libraries and the colleges and these individuals who are particular about their libraries, the precise individuals who import books under these exceptions; and there were instances brought before the conference where publishers here had declined to undertake a book which would have been valuable to the public, which would have been valuable to the typesetter to set up, and the American publisher to bring out, and to the American bookseller to sell, for the reason that the very limited public which these books addressed would all, in the natural course of events, have their demands filled through these exceptions to the prohibition of importations. That did not hurt the libraries or the individuals who habitually get English editions. It did hurt, we maintain, the American public, the reading public, and a great many individuals among the American producing classes. So that there was a modification requested of the present rules, and the modification in regard to the libraries is this: There is to be not exceeding one copy to be introduced on an invoice, the privilege is not to relate to books which have their origin here in America. With your permission, I will briefly explain those two points. In the first place, ordinarily a library or a college needs only one book at a time. If it needs another copy of the same book it is not too much to ask that it make another importation to bring it in. Under the present rule, while delicate and careful men would not take advantage of it, it is constantly a temptation to a librarian who can import free of duty and free of the copyright proprietor's claims, two copies of a book from England, to import one for the legitimate use of the library and one for some other use. The effect of that influence can not be particularly measured. The other point is one which can be clearly understood. It is now the right of colleges and libraries, an important right, that in case of an English book they should be able to get the English edition, which in some instances is more complete or for other reasons better than the American edition. But it can almost never be an important right to obtain the English edition of an American book since the American edition is almost always more complete, or equally complete. So that the right to import the foreign edition of an American book, a book of American origin, would ordinarily be confined to the Tauchnitz and the like editions with which the gentlemen of the committee are all familiar, where a continental publisher publishes English and American books for the benefit of travelers, and they are not allowed to be reimported into England or America. It seems to the publishers fair that the same rule which applies to every Englishman and every American as to such Tauchnitz editions should be applied to libraries; that is, that they should get the American edition, and not the other, of which the only advantage is cheapness, arising from its special purpose. Whether or not these are reasonable changes has been very largely passed upon, it seems to me, in the controversy that has gone on with the American Library Association, which is a very powerful and very diligent and active association, and which has been very much interested in these matters; and in laying before you their approval of the bill in its present shape, it seems to me that as to this clause it must establish in the minds of the committee a clear prima facie case, at least, that this compromise that is agreed upon is a reasonable compromise. There are gentlemen here who represent certain libraries who, I understand, think that it is not a reasonable compromise. Mr. CURRIER. That minority is a very strong one, is it not? Mr. OLIN. I think it is a strong one; and they undoubtedly will be heard. They object that this compromise goes too far; and all that we can reasonably ask the committee at this moment is that if it occurs--if it seems to the committee that what this minority of librarians have to say overcomes the presumption of fairness that arises from a compromise satisfactory to the majority--that then the publishers may have their opportunity of showing to the committee that it is a fair compromise and a reasonable disposition of the matter. Now, we come to the next clause of these exceptions. Mr. CURRIER. Just an instant. Would the people you represent object seriously to an amendment to subdivision 3, on page 16, which would strike out all after the words "United States" where they occur? Mr. OLIN. On page 16? Mr. CURRIER. In the tenth line of subdivision 3. Mr. OLIN. Are you reading from the printed form of the bill? Mr. CURRIER. The library print. Mr. CHANEY. Section 21? Mr. CURRIER. I have not compared them. I have been using the library print all the time. Mr. CHANEY. Just take the other bill. Mr. PUTNAM. Section 30 of the bill. Mr. CHANEY. Page 24 of the Senate bill. Mr. CURRIER. Now, strike out all after the words "United States," in the twenty-fifth line, down to the fourth section. Mr. OLIN. I am now speaking merely for the publishers, whom I do represent generally, and not for these other associations. Mr. CURRIER. I was simply asking if the people whom you represent would make serious objection to that amendment. Mr. OLIN. Speaking only for the publishers, I think they would. I think they would wish to be heard fully on that before any such change was made. Mr. CURRIER. Right in that connection, let me call your attention to the first subdivision, beginning on line 13, which deals with the importation for an individual. Mr. OLIN. On what page? Mr. CURRIER. Page 24, line 13. Mr. OLIN. Yes. Mr. CURRIER. We would understand, would we not, that that was a practical prohibition of importations by individuals? Mr. OLIN. No, sir. Mr. CURRIER. Do you imagine that a book would ever be imported by an individual under that provision? Mr. OLIN. I should think they would be habitually, and to a much larger extent than at present; and I will give you my reasons for it. Mr. CURRIER. Would it not be a considerable inconvenience to secure the permission of the proprietor of the copyright? Mr. OLIN. I should think none at all. Mr. CURRIER. We would be glad to hear you on that, because it occurred to me that that was an absolute prohibition, in effect. Mr. OLIN. I am glad to have my attention called to this, because this is a matter where we have not been able to make any compromise. There are no representatives of the public who could discuss such a compromise, and we come before the committee to submit it to their judgment as to its fairness in the first instance. What I want to call the attention of the committee to is that the effect of this is simply to put the business back, as to importing one copy, to the condition that existed before 1891 as to importing all copies. We would be very glad, the copyright proprietors would be very glad, and the public would be very glad if it could altogether go back to that condition; that is, if you say books shall not be imported without the consent of the copyright proprietor. The copyright proprietor would then, as he did before, import books and put them into the trade and sell them freely. Mr. CURRIER. Yes; the proprietor would import, but I think, in answer to an inquiry a few moments ago, you said that under the former law individuals did not import. Mr. OLIN. No; but they did not need to. Mr. CURRIER. Under that provision beginning on line 18, while the proprietor might import, do you think an individual would ever import--go to the trouble of getting the consent of the proprietor? Mr. OLIN. I think the practical working of that would be just this---- Mr. CURRIER. I am only asking for information. Mr. OLIN. The practical working would be this: Scribner & Co. would publish here a book which was also published in England. An individual would wish to get a copy of it in the English edition, and he would either go to the Scribners' store, or write to him, or he would go to his bookseller, who would send word to the Scribners, asking that a copy should be imported for that individual through Mr. Scribner, and Scribner would import it for him. That is to say, the individual would have far less difficulty, wherever he was situated throughout the country, in getting the English edition of the book than he has at present, when he himself writes to an English bookseller in London and imports it himself. Mr. CURRIER. I am not expressing any opinion at all as to the correctness of that proposition, whether the individual should not be prohibited from importing. Mr. OLIN. My point is that the facility with which the individual would obtain an English edition of an American copyrighted book would be greatly increased by the passage of this bill, because it would put it in the regular course of business, just as it used to be before 1891, for the owner of the American copyright to see to those importations. The law would not allow the proprietor himself to make the importations, but he would be exceedingly glad to import that book for A, B, C, D, and E, all over the country, and to make it just as easy as it was possible to do for them to get that English edition. Mr. CURRIER. I am not at all sure that that is not so, but I think you agree with me that the individual himself, under that provision, would never directly import a book. Mr. OLIN. I think he would not. Mr. CURRIER. The proprietor would always do it for him. Mr. OLIN. It would be so much easier for him to make the proprietor his agent, and the proprietor would be so glad to act as his agent, and it would be so much to the interest of both parties that that should be so that that would be naturally the course that it would take. Mr. HINSHAW. Under existing law is the proprietor of the American copyright seriously injured by these importations? Mr. OLIN. In ordinary cases, as I said, he is not seriously injured--that is, in the case of popular books he is not substantially injured at all. He does not know how much he is injured, because there is no means of estimating the precise amount. It is an injury, but how great he does not know. Mr. HINSHAW. It is a sufficient injury, so that you think it ought to be restricted? Mr. OLIN. It is a sufficient injury, especially in the cases that I have spoken of, where valuable books that cost very much to produce and that have a limited field of sale are in question, and there it does repeatedly prevent such books from being published in America. Those are the only two limitations which affect the general public until we come to this provision of the bill which increases the term of the copyrights in different cases. As to them, of course the main argument is made by the producer, the author, or artist. He is the one who wants that addition to the term, and it is a matter of no great importance to these general organizations of reproducers whom I represent, one or two of them permanently and some only for the moment. But we may fairly make these observations: First, I repeat what was very clearly put by the Librarian yesterday, that the copyright is simply in the form of an idea, as the patent right is in the idea itself, and that consequently there is never like oppression to the public from the monopoly. If I have a patent on a needle with the eye in the point, nobody in the country can use that until my patent is out, and that is a great oppression. If I write a book about a needle with the eye in the point, or about anything else under the sun, my idea, for what it is worth, is at everybody's disposal when my book is published. He can not copy my form, but whatever good the idea does him in his own thinking or his own work he has. That is the first consideration which has always actuated Congress and all governments, so far as I know, in making the copyright term much more extensive than that of the patent. Then the next is a practical consideration which I think must be within the knowledge of every member of the committee, and that is that for practical purposes in most cases the public gives up nothing by extending the term, for the reason that at the end of forty-two years a very great majority of copyrights--I hesitate to say how large the majority would be--has become worthless. As a matter of fact, it is familiar to every member of the committee that people do not reproduce books that have fallen into the public domain by the expiry of the time of the copyright, except in very special cases of particularly popular works. So that in most instances the public would not be giving up anything really in adding to the end of this term a certain number of years. Then, next, there is the consideration that in practice it is true that the public does now get the fullest opportunity to buy cheaply (which, I think, must be the only interest of the public as distinguished from the interest of the different producing classes) because books start at a certain price and at the end of a year they go down below that price. At the end of two years there are new editions at perhaps half the price, and in a very few years the publisher is making every effort to attract the public by every reduction that is possible. There is one other consideration that I think may possibly be alluded to, and that is that since this term was fixed, partly by the improvements of science and partly by changes in legislation, the actual value of a given term of copyright has diminished. Part of the value of a term of copyright was always that at the expiration of the term the owner of the copyright had the plates and had the books and could compete to great advantage with other people. His right, his privilege in that respect, has been largely taken away by these photographic processes which have come into use. It is not necessary for the man who wishes to publish a book to go to work and have type set for it. He simply takes the existing edition and he photographs it, and he does that with great cheapness. Perhaps there would be an answer to this suggestion that the public should have the advantage that would come from all such cheapening processes; but it seems to me that it could reply that Congress has prohibited the copyright owner from taking advantage of these processes, by saying that he at first must make his book, as long as the copyright exists, in the most expensive way, from plates made by American mechanics and who receive American wages; and consequently that he is handicapped from the beginning. I do not wish to press this argument unduly. It is something, it seems to me, that may be suggested to the committee, whether or not this committee is now to act with the same liberality which Congress showed when the existing term was fixed, if it would not necessarily in some degree extend the term by reason of the facts to which I have referred. There is only one other, so far as I know, important extension of the right of copyright contained in this bill, and on its face it appears to be a matter of inadvertence. It is contained in section 8, where there are provisions A and B, on page 5. The present law of copyright allows a foreigner to take out a copyright if he is a resident in the United States, or if he is a citizen of one of those countries which allow similar privileges to citizens of the United States. Those are the two categories. At first glance at A and B, in section 8, it would appear that those were intended to represent the same classes and to give precisely the same rights; but, apparently by inadvertence, in the second line of subdivision A the word which should, I think, be "and" has become "or," so that as it at present reads a foreigner, no matter where he lives, no matter whether the country of which he is a citizen gives similar rights to citizens of the United States or not, may, if he shall first or cotemporaneously publish his work within the limits of the United States, have a copyright. I am not here to say that that would not be a wise extension of the law. I am not here to say on behalf of any of the parties whom I represent that they would or would not oppose it. I do not know anything about their views. This extension of copyright is not an extension which has been discussed in the conference. I have no right to give any approval of it, even to the limited extent that I have a right to give an approval of this bill on behalf of any of these bodies whom I represent. Mr. BETHUNE. Would not the interest of the publishers be safeguarded if the law provided that an individual may import one copy of the foreign edition, but only after he has asked the proprietor of the American copyright to buy one for him and his request has been refused? Mr. OLIN. If the committee chooses to put that in, I can see no harm in it at all. It seems to me that it will result in that, necessarily, if the American publisher is not actuated by his own interest, as he used to be prior to 1891, and as I think he would be again, and if he is not glad to import that copy from abroad. If he refused I think if anybody who is aggrieved should come to Congress, Congress would change the law instantly and compel the copyright proprietor to give consent; and if Congress thinks it right to put in that provision in the beginning nobody could complain. So that my answer is that I do not think anybody would object. Mr. JOHNSON. I would like to ask if an American citizen traveling in Europe should at the time he was there purchase one of these editions, would it not be a hardship on him to compel him to forego the bringing of that copy into the United States without the consent of the American proprietor? Mr. OLIN. Is that question addressed to me? Mr. JOHNSON. Yes. Mr. OLIN. If a hardship, it is inflicted by the English custom-house at present in regard to these very Tauchnitz editions. It is one of the few things they are rigorous about, and I think members of this committee may have had experience with the English customs and their rule about that. But in this bill it is provided that where there are parts of libraries or books in baggage brought back by traveling people they shall be admitted. I think it is a question of de minimis. I think in the case of a man bringing back such a book it would be no hardship worthy of the consideration of Congress. Mr. JOHNSON. All personal baggage is included also? Mr. OLIN. Yes. Mr. PUTNAM. For the information of Mr. Johnson, Mr. Chairman, I think that Mr. Olin was referring, in answer to that question, substantially to subsection 4, on page 25, which was supposed to take care of the person bringing in copies in his personal baggage. Mr. Ogilvie is here from Chicago, but before his statement is made I wish to say that, as I understood, Colonel Olin spoke in two capacities; in the first place, giving some general expression in behalf of a certain group of organizations, and their substantial acquiescence in the bill; in the second place, as counsel specially for the book publishers, with reference to certain particular provisions, particularly this importation clause. Mr. OLIN. Yes; and, finally, I wished merely to modify the general approval of the bill which I had given on behalf of all these organizations, by expressing my understanding that they considered the bill, as I supposed was intended, with "and" instead of "or" in the second line of subdivision A, in section 8, on page 5. Mr. PUTNAM. In that latter capacity, the provisions of the bill as to which Colonel Olin spoke were those as to importations particularly affecting the interests of the libraries; and, considering what will be most helpful to the committee, it would seem to me appropriate, and I submit it as a suggestion, that as soon as possible after the statement that you have had from Colonel Olin in explanation of those provisions you have the statement from representatives here of the group of libraries--librarians--that would dissent from the provision. Mr. Cutter is here, and, if I understand him rightly, his statement will be brief. Mr. Ogilvie, however, had been promised an opportunity to be heard early this morning. As I understood him, the oral statement that he proposes to make is an objection to certain provisions of the bill, and that he would be content with an opportunity for a ten-minute statement, to be supplemented, if he chose, in writing, to go into the record. STATEMENT OF GEORGE W. OGILVIE, ESQ., OF CHICAGO. Mr. OGILVIE. Mr. Chairman and gentlemen of the committee, as I understand that this bill is to take the place very largely of the copyright act of 1891, it may be proper to refer to some of the arguments that were advanced at that time as to why that particular bill should pass. In furtherance of that idea, I read from The Question of Copyright, by George Haven Putnam, on page 103, in which it is said: It is admitted that the proposed act or any other of a similar nature will raise the price of the very cheap reprints of English stories yet to be written a few cents apiece. A pamphlet of that sort now costing 20 cents will then cost 25 cents. Of the additional price, 2 cents will go to the author and 3 cents will go into better paper, better print, and better binding. For the 5 cents of increased cost an American story will be furnished oftener than an English story, an American author will get pay for his labor, and the reader will get a book that is 100 per cent better than the old one in paper, print, and binding. I submit that if an additional cost of 3 cents is to go into paper, print, and binding, and will produce a book that is 100 per cent better than the 20-cent book, and 2 cents of the increased price is to go to the author, that the publisher would receive no benefit whatever; and it is well to bear in mind that the disinterested patriots who requested the passage of the international copyright law did so for the purpose of benefiting not themselves, but the author of a book 2 cents per copy, and the producer of paper, printing, and binding 3 cents per copy, out of which they got nothing. It is the same gentlemen, as I understood it, who were sponsors for that bill who are the sponsors for this. Twenty cents per copy for a book costing 3 cents to produce shows a profit somewhere of 666 per cent; and it is probable that they were satisfied with that percentage. As a basis for further remark along that line, I desire to draw your attention to section 13 on page 6 of the bill, as I have it here. Mr. PUTNAM. That is the library copy. Mr. OGILVIE. It is section 13 of the third paragraph [reading]: Any person who, for the purpose of obtaining a copyright, shall knowingly be guilty of making a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited. The CHAIRMAN. For whom do you appear, Mr. Ogilvie? Mr. OGILVIE. For myself as a publisher and for several other Chicago publishers, none of whom were represented at or invited to the conferences of which this hill is the result. Mr. CHANEY. Had you no notice that there was going to be a conference? Mr. OGILVIE. The first information that I had that there was a conference was from a gentleman representing Lyon & Healy, of Chicago, in the Manhattan Hotel in New York, last November. That was the first intimation I had that there had been a conference. I knew that there were likely to be some, but I had no notice of their dates. Mr. CHANEY. We wanted you as well as everybody else. Mr. OGILVIE. I knew nothing about it. I may say, also, that the first draft of this bill that I have seen was received in my office in Chicago Saturday morning last. Again, on page 18 of the bill, section 25: That any person who willfully and for profit shall infringe any copyright secured by this act, or who shall knowingly or willfully aid or abet such infringement or in any wise knowingly and willfully take part in any such infringement shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine, etc. It seems to me a little out of order for the gentlemen who are sponsors for this bill to make it possible for them to get a copyright on a book, and if they are not caught in making a false affidavit in securing it, that a man shall go to the penitentiary for a year for pirating that particular book. It will be rather difficult for one to prove, after a number of years, that a publisher who has made an affidavit to secure a copyright to which he really was not entitled had committed perjury in connection with the securing of that copyright; but the question as to one's piracy of the book is open and "he that runs may read." It seems to me that there is a punishment there that they have applied to the wrong crime. If the man who makes a false affidavit were to go to the penitentiary for the year, I think it would protect the interests that desire protection in this country, in the form of labor, in the matter of setting up and manufacturing books wholly within the limits of the United States. The CHAIRMAN. Do I understand you to contend that the Librarian should be charged with any special duty in that regard, for the registry of the copyright? Mr. OGILVIE. No, sir; the Librarian can not determine whether a man is making a false or correct affidavit, but if one makes a false affidavit he is the man who should go to the penitentiary and not the individual who pirates his book. Mr. BONYNGE. Does not section 13 provide that the man who makes the affidavit shall be guilty of a misdemeanor? Mr. OGILVIE. Yes; and the penalty therein provided is, "he shall be fined not exceeding one thousand dollars." That is all. Mr. CURRIER. What is your suggestion? Mr. OGILVIE. That you change the punishment. Mr. CURRIER. And make it a penitentiary offense? Mr. OGILVIE. Let them both go to the penitentiary, if either one goes. Mr. CURRIER. In both cases? Mr. OGILVIE. In both cases, if necessary. Do not eliminate the publisher. I am a publisher, but if I have made a false affidavit, there is no reason why the man who pirates my book should go to the penitentiary and I should only have to pay a fine, if I am caught. I see no reason why a man should go to the penitentiary in either case, really. He may unwittingly infringe the copyright of a book. Mr. CURRIER. This says "willfully." Mr. OGILVIE. That is subject to the construction of the courts. We all know what that means. Mr. CURRIER. No; it puts the burden of proof on the Government to show it beyond a reasonable doubt. Mr. OGILVIE. The proof of the perjury should also be beyond a reasonable doubt and the one guilty of it should be equally punished. Mr. CHANEY. If he did it unwittingly it would not be willful, you know. Mr. OGILVIE. It is impossible for a publisher to make an "unwitting" affidavit of that sort. The publisher knows where the article that he is publishing is manufactured. I have been a publisher for a great many years, and I know where the articles that I am turning out are manufactured. It is possible for him to make an affidavit that is literally and absolutely true in regard to the place of manufacture of every article that he produces. Senator MALLORY. Where he willfully makes a false affidavit it is equivalent to perjury, and the penalty for that is generally imprisonment in the penitentiary. Mr. OGILVIE. Then why change the penalty in this law? It certainly limits his liability under this act. Mr. CURRIER. There is not any liability at all. No affidavit is required. There is no penalty for a false statement at all under the law now. Mr. OGILVIE. Not as it is at present, but as this new law proposes it there is a liability. Mr. CURRIER. This was a bill that passed the House last winter and was not reached in the Senate. Mr. OGILVIE. Well, the facts are here. The CHAIRMAN. It was reported favorably by the Senate committee. Mr. CURRIER. Yes; and not reached. Mr. OGILVIE. Section 19, the last portion of that section, reads: _And provided further_, That should such subsisting copyright have been assigned, or a license granted therein for publication upon payment of royalty, the copyright shall be renewed and extended only in case the assignee or licensee shall join in the application for such renewal and extension. Mr. PUTNAM. That provides for the extension of the existing copyright for an additional term. Mr. CHANEY. What is your suggestion on that? Mr. OGILVIE. That the gentlemen who framed this bill, and who wished to let themselves out of the penitentiary for committing perjury, would be likely to make a very liberal arrangement with the author, or his widow or children, if it was within his power to refuse to consent to a renewal of a copyright. He may have been paying a royalty of 20 per cent, and when the time came for securing a renewal of the copyright he would be likely to say, "I will give you 1 per cent, and if you do not agree to that I will not join the request for an extension of the copyright." I think that is wholly beyond the province of this act. Mr. CHANEY. Whose consent should be required? Mr. OGILVIE. Eliminate the publisher. He has no concern with it. The Constitution does not grant him any rights under the copyright law. He is not the "inventor" or the "author." Eliminate the publisher wholly, unless you desire, in case there may be an investment there that the publisher desires to protect, to let the author take care of that by contract, so that at the expiration of the copyright the publisher may have the right to continue the publication on the payment of the same royalty. Mr. CURRIER. Can you suggest an amendment to carry out your idea in the matter? Mr. OGILVIE. Yes, sir. Unless the publisher shall agree to pay at least the same royalty for an extension of the copyright as has been paid during the previous years, the author shall have the sole right to apply for and secure an extension of copyright. Mr. CHANEY. You are really talking against your own interests as a publisher just now? Mr. OGILVIE. I am, absolutely, talking against my interests as a publisher. Mr. SULZER. Do you contend that this provision would apply where the publisher had no interest in the publication beyond the ordinary time of copyright? Mr. OGILVIE. That is all; it shall apply only to that case. Mr. SULZER. I construe this provision in here to be just what you say. Mr. OGILVIE. No; I read it differently from the way you do, and place a different construction upon it. We will again refer to it and see if I am wrong. If I am wrong, I shall be glad to be put right, and if you are wrong, I know that you will be glad to be put right. Mr. SULZER. It says here unless the assignee or licensee shall join in the application. If a man is an assignee or licensee he has an interest in the copyright. Mr. OGILVIE. He takes it for the time limit only. Mr. SULZER. If he is not he has no interest, and would not have to join with the widow or children in this application for an extension of the copyright. Mr. OGILVIE. But if he is the assignee or licensee then he is interested in it only during the life of the copyright. Mr. SULZER. I do not understand it that way. Mr. HINSHAW. How could the licensee have any interest in the copyright beyond the life of it? Mr. SULZER. He would have an interest in it so far as it could be extended. Mr. OGILVIE. Why should he? Mr. BONYNGE. He has not. There is no provision now for the extension, and he would not have, except as he might get it under this bill. Mr. CAMPBELL. He would provide for that in his contract. Mr. OGILVIE. Yes. Leave it out of the law. Mr. CAMPBELL. When the assignment was made, he would provide for all extensions. Mr. OGILVIE. That is right. Mr. HINSHAW. Are these contracts for royalty made to include a possible extension of the copyright? Mr. OGILVIE. Not generally; because the author may be dead when the time for the renewal comes. Mr. CURRIER. But it can be renewed then by his widow. Mr. OGILVIE. But they do not do it generally. Mr. CURRIER. I should suppose that in almost all cases under the existing law they would get a renewal. Mr. OGILVIE. They do at times, but not often. Mr. SULZER. I think I understand what you mean, and that is this: That where there is no subsisting contract, then that the publisher shall not join---- Mr. OGILVIE. The publishers shall not be required to join. Mr. SULZER (continuing). In the application for the renewal of the copyright? Mr. OGILVIE. Yes. As this is, it makes it impossible for the author or his widow or children to secure the extension of the copyright without the licensee joining. Then he has it in his power to diminish the royalty paid to suit his own purpose. Mr. CAMPBELL. If the contract for the copyright does not provide as between the author and the publisher for any renewal, what position would you be in then? Mr. OGILVIE. According to this law it is impossible to get a renewal unless the licensee joins in the request. Mr. CAMPBELL. The license expires---- Mr. OGILVIE. But the license does not expire until after the copyright expires. Mr. CAMPBELL. What is the length of your contract that you usually make? Mr. OGILVIE. This is a new provision entirely. Mr. CAMPBELL. Under the old law, I mean? Mr. OGILVIE. Under the old law it usually lasts as long as the copyright lasts. Mr. CHANEY. You suggest that we leave out this last proviso absolutely? Mr. OGILVIE. Yes, sir. Mr. BONYNGE. Not to leave it out absolutely---- Mr. OGILVIE. I think it should be left out altogether. It is wholly unfair to an author. I can see no reason why the publisher should have any right of that kind. The Constitution grants the right to an author, and if the publisher desires to secure those rights that is a matter of contract. Let him make a contract covering that point. Mr. HINSHAW. If the copyright had been assigned, the original proprietor would have lost all interest in the copyright; would he not? Mr. OGILVIE. The party who now takes a copyright takes it with the understanding that it shall expire at a certain time; and then he is in no better position and no worse than any other publisher who has not had a contract with the author. Mr. CHANEY. Suppose your contracts under this bill, should it become a law, should provide for the life of the copyright, together with any extensions thereof--then what would you say as to the proviso? Mr. OGILVIE. Suppose the bill should provide for the life of the contract, together with any extension thereof? Mr. CHANEY. Suppose under this bill, should it become a law, your contracts with the author should provide for the license and assignment to extend the copyright during its life and all extensions thereof? Mr. OGILVIE. If the author wishes to make a contract of that sort, that is the author's business; but let the author thoroughly understand what he is doing. As it is here, the author may think he is entitled to the license for a renewal term, whereas he finds the publisher has it wholly within his hands. The publisher is not entitled to it; it is not his. Mr. SULZER. After all, it resolves itself down to a mere question of contract? Mr. OGILVIE. Yes; but this eliminates the necessity for making a contract, because this gives certain people rights. Mr. SULZER. Only where there is a subsisting contract, however. Mr. OGILVIE. But the contract as at present expressed is for the life of that copyright. Mr. MCGAVIN. The life is fourteen years? Mr. OGILVIE. Twenty-eight and fourteen. Now, then, let us assume, under this section, that a copyright expires next year. Let us assume that this bill passes, that a copyright expires next year, and that I am the author of a certain book. I go to my publisher and say: "Here under the law I am entitled to a renewal of the copyright for my book for a term of fifty years in all, or during my life, or whatever the term may be." The publisher replies: "Very well; you want me to join in the securing of that extension, do you?" "Yes." "Well, I have been paying you 20 per cent royalty; I will pay you 2 per cent hereafter, and if you do not take that I will pay you nothing." Is it impossible to suppose that some publishers would do that when they carefully provide against going to the penitentiary for committing perjury? I think not. Another point: in section 15, in the last paragraph, this language appears: Where the copyright proprietor has sought to comply with the requirements of this act as to notice, and the notice has been duly affixed to the bulk of the edition published, its omission by inadvertence from a particular copy or copies, though preventing recourse against an innocent infringer without notice, shall not invalidate the copyright. Now, let us see where that lands us. How have the public any means of determining whether "the bulk" of the books has contained a notice of copyright? Assume that I get hold of a book that contains no notice of copyright, and as a publisher I reprint it. It may have been an expensive book to reprint. It may have cost me several thousand dollars. What provision is there in this law to reimburse me for having innocently done that which, under the law, apparently I had a perfect right to do? Not any. I think there should be some provision to reimburse a man who does a thing of that kind under an apparent right. Mr. CHANEY. This is not a case of ignorance of the law; you think it is a case of ignorance of fact? Mr. OGILVIE. Ignorance of fact. You are not obligated at present to go to the Copyright Office to ask any questions. The book itself is supposed to present all evidence of existing copyright. Mr. CHANEY. Could you not obtain that information at the office of the Librarian? Mr. OGILVIE. In regard to that as arranged at present, just to illustrate the point, I will state that I printed a book in Chicago, an English book, apparently published in England, containing no notice of American copyright. I spent several thousand dollars in getting the book out, and have spent several thousand dollars since then in lawyers' fees. The point was this: The book was published under one title in the United States and under another title in Great Britain. It contained no notice of American copyright. In an excess of caution I communicated with the Librarian of Congress asking whether a copyright existed on that particular book, by title, in either the name of the English publisher or the name of an American publisher, whose name also happened to be on the title-page of the book; and I was informed that no copyright existed. I reproduced the book. Judge Kohlsaat, in the Federal circuit court of Chicago, decided that I was strictly within my rights. The circuit court of appeals reversed his decision and has refused a rehearing, and we must, consequently, take the matter to the Supreme Court. Now, I claim that under the law a man who does that is entitled to compensation. Mr. PUTNAM. Excuse me just a minute, Mr. Ogilvie; will you permit, Mr. Chairman, the register to say a word? The CHAIRMAN. Certainly. Mr. PUTNAM. It is simply in answer to Mr. Ogilvie's intimation that he answered his inquiry, and that his inquiry was whether a copyright existed upon that book. What was the answer that he got from the office of copyright? Mr. SOLBERG. The only purpose in making any remark on that point is that there shall not be a misunderstanding as to the nature of the replies to such inquiries. Any matter of fact on record in the copyright office is always at the disposal of any inquirer, but the copyright office is very careful not to undertake to state the termination of any copyright. It simply gives facts as to the registration of title or whether it has discovered any. In fact, it is very careful not to say even that there is no registration, but that the indices of the office and the records of the office after careful search do not disclose any. Mr. CHANEY. Mr. Ogilvie is substantially right in his statement, then. Mr. OGILVIE. And at this time I wish to publicly thank Mr. Solberg and Mr. Putnam for the uniform courtesy with which they reply to all inquiries that are addressed to their office. The gentleman is quite right. That was exactly the phraseology used in his reply. But that, I beg to submit, is the only source of information that publishers have; and when they get that sort of information they are justified in proceeding along lines indicated thereby. I say that every edition of a book that is copyrighted under the United States law should contain notice of copyright, irrespective of where it may be printed, and thus give the public due notice. Senator MALLORY. Let me ask you in regard to that instance that you speak of in your experience. That book had two different titles, you say? Mr. OGILVIE. Yes, sir. Senator MALLORY. That is, there was an English publication under one title and an American publication under a different title? Mr. OGILVIE. Yes. Senator MALLORY. Were they identically the same book? Mr. OGILVIE. No; not identically the same book, even. Senator MALLORY. Which title did you publish under? Mr. OGILVIE. Under the English title. Mr. SULZER. Was the subject-matter different? Mr. OGILVIE. The subject-matter was different. A portion of it, consisting of some 500 pages, was alike, but a considerable portion of it was different. Mr. HINSHAW. The English book was copyrighted in the United States? Mr. OGILVIE. The American book was copyrighted in the United States. The English book contained no notice of copyright, and I may go further and say---- Mr. SULZER. Did you publish the English book? Mr. OGILVIE. We published the English book. I may go further and say that the American publisher, by contract, agreed to the elimination of the American copyright mark; and he did that for this reason: The people who live in Great Britain refuse to buy, if they can avoid it, American books. I have had opportunities to sell several thousand copies of my copyright books, provided I would leave out of them the American copyright notice. I have in my office in Chicago at the present time a great number of American copyright books that have been printed in the United States and sold to publishers in Great Britain, who required the elimination of the American copyright notice; and the American publishers were foolish enough to comply with that request, thereby, in my humble judgment, vitiating their copyright. I say that in the case of an American copyright book the public are entitled to be informed, not merely by the insertion of the word "copyright," but by the insertion of the word "copyright," together with the date on which the copyright was taken out and the name of the person who took it out, exactly as the law is at present. It is not enough to simply substitute the word "copyright;" it means nothing. Mr. CURRIER. Suppose in the case you have referred to you began to publish this book without any knowledge that it was protected by copyright? Could you not go right on and publish and sell that book? Mr. OGILVIE. The courts have enjoined me. Mr. CURRIER. If this law is passed, could you not do that? Let me read it. (Reading:) "It's omission"--that is, notice of copyright--"by inadvertence from a particular copy or copies, though preventing recourse against an innocent infringer without notice." You are an innocent infringer; you can go right along and dispose of the books. That is your case; that is your defense in any proceeding against you for selling these books. Mr. OGILVIE. Yes. Mr. CURRIER. But it does not invalidate the copyright as against all others, nor prevent recovery for an infringement against any person who, after actual notification of the copyright, begins an undertaking to infringe it. Mr. OGILVIE. Well, will you tell me what this means--"shall not invalidate the copyright?" Mr. CURRIER. Why, the copyright exists as against everybody but you in that edition of the book. Mr. OGILVIE. Very well, if that is the case. Mr. CURRIER. But if this bill passes, you would have a right to go on and complete the edition of the book and sell it. Mr. OGILVIE. If that is the construction that the courts give it, very well. Mr. CURRIER. There can not be any doubt about the construction. It is only the man who, after actual notice that the copyright exists, begins an undertaking to infringe it who is affected. Mr. OGILVIE. I read that section very carefully, and I see the point that you raise; but I could not---- Mr. CURRIER. I think this gives you full protection. Mr. OGILVIE. I could not get over the statement, however, that it did not invalidate the copyright. Mr. CURRIER. But it does not invalidate the copyright. Mr. OGILVIE. As applied to everybody else? Mr. CURRIER. To anybody who has notice before he begins. Mr. OGILVIE. Very well. Now, then, with regard to the insertion of notice, to get back to the subject, I consider that the insertion of the notice is essential. If we are ashamed of the United States, if we must cater to England, and France, and Germany, and other nations by the elimination of a notice that indicates the origin of our books, why do we desire to protect their authors? Mr. CURRIER. Oh, this omission that is referred to is a mere inadvertence in a particular copy. Mr. PUTNAM. I understand now, Mr. Chairman, if you will permit me, Mr. Ogilvie, it is in aid of your statement---- Mr. OGILVIE. Yes. Mr. PUTNAM. I understand now that Mr. Ogilvie is referring to the requirement as to the notice being in terms limited to the edition sold in the United States. Mr. OGILVIE. Yes. Mr. PUTNAM. And it does not extend to any edition that may be produced and sold abroad? Mr. OGILVIE. Yes. Mr. PUTNAM. I understand that you think that it ought to be on all authorized editions of books? Mr. OGILVIE. All authorized editions. The copyright law says that the notice shall go on the title-page or the page immediately following. You turn to any book, and what do you find on the page immediately following? Practically nothing, unless the copyright notice is there. There is plenty of room for it. If they can engrave the Lord's prayer on a three-cent silver piece, there is certainly room enough to put those half dozen words on the back of their title-page. In regard to the publication of books under two titles, it seems to me that some provision should be made in the law to protect a man who publishes a book that is printed abroad under one title and is printed in this country under another, provided the foreign edition does not contain notice of copyright. As it is to-day, and as it will be under this law, one can import a book printed in England; it may have been written on the same subject as that which you intended to produce a book on; you have carefully warned your editors to abstain from making extracts from a book that is printed in this country or that contains a notice of copyright. You proceed. Your editor finds a book in a library that does not contain notice of United States copyright. It is published abroad by a publisher different from the one who issues it here. There is nothing to warn him. He makes copious extracts, and the owner of the copyright may be perfectly well aware of the fact that he has made those extracts. Under this law as it is proposed, he may permit that infringement to continue for three years and then claim damages, not less than one dollar a copy, although the book may have been sold for 10 cents per copy, and practically put the apparently infringing publisher, who acted in perfect good faith, out of business. It is unjust; and I submit, gentlemen, that those matters are proper subjects for consideration, and that they should not be enacted into a law in their present form. Now, to refer to some of the remarks made by my predecessor, Mr. Olin. He said that the American Publishers' Copyright League and the American Publishers' Association represented practically all of the publishers of the United States. I differ distinctly and materially with him. They do not. They represent a few and only a few of the publishers of the United States. I doubt very much if a single publisher west of the Alleghenies (with very few exceptions) is a member of either of those associations. There may be a few exceptions--I know now that there are--but very few, and he is not qualified to speak for the others who are not members of those associations, and they do not represent a majority. In regard to importation, he said that Scribner would be very glad to import a book if he were requested to do so. Now, I am a publisher, and if it were my book I do not think I should be very glad. I think I should tell the intending purchaser that I had a copy of the book that was at his disposal for the fixed price that I had placed upon it, and I think Scribner would do likewise. In regard to cheap editions, which he spoke of and said that at the end of the copyright a publisher was desirous of securing as large a circulation as possible for his books--that is true within a year or two of the end of the term of copyright. But I can not recall at this moment a single book the price of which has been reduced materially until so close to the end of the term of copyright as to make it practically valueless to the original publisher unless he did reduce the price; and he does it, not for love of the public, not because he is considering the public, but simply to get ahead of his fellow-publisher. He is the man who then has a couple of years in which to exploit a cheap edition; and it seems to me that under the law as it is suggested, a term of fifty years from the date of the death of the youngest of the authors is going beyond what the framers of the Constitution decided was a limited time. Let us assume that Mark Twain, if he were 80 years of age, were to write a book. He has his daughter, who may be 20, write a few lines in that same book. Mark Twain dies in a few years; she lives to be 90. There is seventy years of copyright, and fifty years after her death, making one hundred and twenty years. I do not believe that that is a "limited time" within the meaning of the phraseology of the Constitution. [Laughter.] Mr. CHANEY. That is the joint-author clause. Mr. OGILVIE. There is just one point that I had overlooked. I was not at any of the conferences, but I have been informed that an attorney representing certain of the special interests at those conferences suggested that the public should be considered; and to quote literally what I was told as to what happened, "he was hooted at and laughed down." And I think that very fully expresses the sentiment contained in this proposed copyright act, so far as the public are concerned. I thank you, gentlemen. STATEMENT OF FRANK H. SCOTT, ESQ., PRESIDENT OF THE CENTURY COMPANY, NEW YORK, AND PRESIDENT OF THE AMERICAN PUBLISHERS' ASSOCIATION. Mr. SCOTT. Mr. Chairman, I only wish to clear up two points that have been raised by my predecessor. I am not responsible for the exact wording of the clauses covering these two points, but I do wish to emphasize their importance. The first is as to the question of the original publisher's rights at the termination of the present contract or the present copyright. Under the law as it now stands, at the termination of the copyright the publisher would have a set of plates and possibly a large number of books on hand. He can enter the market, no matter who comes into the field, and compete on at least equal conditions. Under the bill as it is proposed now, if the author secures a continuation or a renewal of his copyright, and the publisher is not consulted the publisher would be left with his set of plates and his investment in the sheets and stock; and it would be absolutely impossible for him to sell them to anybody, because his contract having expired, and the author may have gone and made a new contract with a new publisher, leaving him entirely out of it. If there is no copyright whatever he can compete on equal terms. I am only explaining why I think the publisher ought to have some consideration under those circumstances. Mr. CURRIER. What do you say to the amendment suggested by the gentleman who last spoke? Mr. SCOTT. Just what was that amendment? Mr. CURRIER. That the publisher might have the right to control the extended term, provided he would pay the same royalty that he had paid. Mr. SCOTT. I think the publisher ought to be obliged to pay the same royalty that anyone else should pay at that time. It might be a very old work. It might be that the time during which he could continue to pay that royalty had expired. Mr. CURRIER. You could hardly set the right up at auction, could you? Mr. SCOTT. I am sorry to say it is very often done. Mr. CHANEY. Would you not think that would give the publisher an undue advantage over the author? Mr. SCOTT. I think the law as it is at present framed is very broad. I only wish to say now that I think the publisher ought to be consulted. I suppose this will come up later, and I have not prepared any argument on the subject. I am only pleading that the publisher ought to have some consideration under those circumstances. Mr. CHANEY. Can not the publisher provide against all that by the contract he makes? Mr. SCOTT. There will be no trouble about the copyrights taken out after the passage of this bill. It is only with reference to copyrights that are now in existence. Mr. CHANEY. Yes. Mr. BONYNGE. You think the language of the bill as it is is too broad? Mr. SCOTT. I think so. I think I should not have made it, myself, quite so broad. The other point I wish to make is with reference to the publication of the American copyright notice in editions of an American copyright work which are published abroad. What the gentleman has said might be very true if the matter were always within the control of the publisher of the American edition, but, as you will readily see, it is not always within his control. These books are very often written by a foreign author. The contracts of the foreign author, for instance, in the case of English novels, are made with his own publisher in London. They have their own arrangement between themselves as to what notice shall be put in the book. The American publisher is forced to place in his own books published in this country the American copyright notice, but he has no control as to what notice shall be placed upon books published in Germany, or in France, or in Spain, or in Russia, or in England. It is entirely beyond his control. Mr. CHANEY. Would you think the terms of this bill, then, are right? Mr. SCOTT. I should say the terms of this bill are right. It seems to me it is perfectly possible for anyone desiring to reprint a book in the United States to ascertain whether or not it is copyrighted. Indeed, the general facts about any book which is so important that anyone wishes to reprint it are notorious. It is known or it can be easily ascertained whether the book is published in the United States and whether it is copyrighted in the United States or not. And I do not think that anyone should be able to get hold of a single copy, whether printed abroad or printed in the United States, that does not happen to have the copyright notice, and be permitted to go ahead and reprint the book _ad libitum_. I think the rights of the owner would not be sufficiently protected if that were permitted. Mr. MCGAVIN. What do you say about the case of the gentleman who just preceded you--the lawsuit into which he got himself? Mr. SCOTT. That has been determined in the courts; it is not for me to say. One judge decided that he was right, and the judge to whom the case was appealed decided that he was wrong. Mr. MCGAVIN. He seems to have made all the necessary effort to find out whether there was a copyright or not. Mr. SCOTT. That book, as I happen to know, was an edition of one of the dictionaries, otherwise known as Webster's Dictionary. I think it was perfectly easy for him to find out whether that book was copyrighted in the United States or not. It is not for me to say whether there was any technical omission which endangered the copyright under the language of the present statute; but it does seem to me that in books generally published outside of the realm of the United States, and beyond the jurisdiction of the United States, it should not be necessary for the American publisher, who owns the copyright or who represents the owner of the copyright, to go abroad and undertake to make arrangements of this kind. It might be very difficult for him to make arrangements for the publication of the American copyright notice on foreign editions which he does not print himself and which he does not arrange to control. Mr. CHANEY. Mr. Chairman, I want to make a suggestion about the form of expression of that clause on page 12. You will notice that in the last line of that second paragraph of section 15 the word "undertaking" is used. I do not know whether people generally understand the use of that word "undertaking" as lawyers in my part of the country do, but I would prefer the word "action" rather than "undertaking," because "undertaking" usually refers to a bond of some kind. "Action," it seems to me, is the proper word. Mr. PUTNAM. That is page 12, line 18, is it not, Mr. Chaney? Mr. CHANEY. Yes. The word "undertaking," you know, is used by lawyers generally in the sense of a bond or some agreement to stand good for the default of another, whereas "action" is the name of the suit. Mr. PUTNAM. This was not intended to apply to a legal action. Mr. CHANEY. But is it not in the same nature? Mr. PUTNAM. No; it was simply meant to apply to the beginning of some enterprise, the beginning to prepare to manufacture. It is a business undertaking, not a legal one. Mr. CHANEY. I misunderstood it, then. Mr. BONYNGE. That is what I understood it to be--an enterprise. Mr. CURRIER. You might let the two words go out, so it would read, "who, after notification of the copyright, begins to infringe it." Then it would be a question of fact. Mr. PUTNAM. Mr. Chairman, you have asked me to announce that it will be the desire of the committee to have the names and addresses of all those present at these hearings, and the relations in which, if they desire to express it, they are here, whether in favor of or in opposition to the bill. We have provided a register at the door in which those names can be noted. I understand that it is desired that that shall extend to all those present. The CHAIRMAN. All present, and in such form that it may be placed in the record that we are making. Mr. CHANEY. You mean also to include, I suppose, a brief expression from these people as to their objections, and to what their objections related? Mr. PUTNAM. Yes. The register will be supplemented by their communications, I suppose--the register itself, including their names. Mr. Horace Pettit, Mr. Chairman, who spoke yesterday, desires to supplement his remarks with an additional suggestion or two, which he has put in writing, and asks simply to have entered in the record, with your permission. Doctor Lewandowski, present here, asks me to submit a request in writing from a firm of music publishers in New York, that he submit to you a communication in aid of the provisions for the protection of music publishers against reproduction by mechanical devices. He submits that in writing, with the request that it may be entered on the record. (The various papers above mentioned will be found at the end of this statement of Mr. Putnam.) Mr. PUTNAM. The copyright office, Mr. Chairman, is now in receipt, naturally, since the bill has been introduced, of some suggestions from those who have participated in the conferences, and since the bill has been introduced and is in the custody of your committee it would seem that those belong to the files of your committee. If you will permit me, I will submit these, without reading them, to be entered in the record. The CHAIRMAN. Do you think they ought to be printed in the record of the meeting? Mr. PUTNAM. I do, Mr. Chairman. I do not refer to mere formal communications, or those that may be disposed of absolutely by the copyright office. I do not mean all communications that come to us with reference to the bill. These are simply four communications, from four participants in the conference. One of them, Mr. A. W. Elson, makes certain definite proposals for amendments, including one to section 13 which would extend the manufacturing clause. He has sent a copy of this to you, Mr. Chairman, and I assume that it will go in the record, with the request for a hearing. The second is from Mr. Edmund C. Stedman, who was a participant, but is in ill-health, and can not be here; but it contains an expression upon the bill that I think should go in the record. Another is from Mr. Leo Feist, also a participant, and contains an expression about the bill that he would have made here orally if present. I think that should go in. Another is from Mr. Ansley Wilcox, who represented certain lithographic interests very much concerned with the protection of such prints as posters, and very much concerned, therefore, in the specifications of subject-matter. He writes a communication which I think should go into the record, expressing his content with the specifications of sections 4 and 5. The CHAIRMAN. Those will be printed in the record. (The above-mentioned papers will also be found at the end of this statement of Mr. Putnam.) Mr. PUTNAM. I have information, Mr. Chairman, that when the matter of the reproduction of music by mechanical devices comes up for discussion, Mr. John J. O'Connell, an attorney of New York, would like to be heard, representing ten manufacturers of automatic piano players in New York City, and desiring to be heard only in opposition to those portions of the bill respecting musical copyrights, and that in connection with the same general subject-matter Mr. Howlett Davis, an inventor of material that enters into these devices, desires an opportunity to make some opening remarks, pointing out how the proposed bill will, if enacted, act in restraint of invention, and show how it encroaches upon the existing patent laws. If it is your pleasure, now, Mr. Chairman, I would suggest that it would be helpful to have an expression from the librarians dissenting from the assent of the American Library Association with regard to the importation clause, while Colonel Olin's remarks are fresh in mind, and if that is your pleasure, I think it is only fair that I should make clear the status of that provision. The list of participants in the conference included two associations that might be interested or were certain to be interested in these importation provisions. One was the National Educational Association and the other the American Library Association. These importation clauses concededly contain a restriction, a limitation, a diminution of existing privileges of importations enjoyed by individuals and enjoyed by certain institutions. The National Educational Association might well have spoken for both individuals and institutions and generally. As a matter of fact, it should be clear that the participation of the National Educational Association in the conferences was of the slightest. They were invited, we urged them to be represented, and they were present by delegate at the first and the second conferences; but their participation was of the slightest. There was no expression from them upon the diminution in the case of individuals, and they contented themselves at the outset with an expression of dissent from any provisions which tended to diminish in any way the present privileges of libraries. The American Library Association was present by two accredited delegates, who considered, by later action of the representative board of the association, that they had authority to represent the association in assenting to final provisions. Those two delegates were the present president of the American Library Association, Mr. Frank P. Hill, of the Brooklyn Public Library, and Mr. Frank C. Bostwick, of the New York Public Library. Mr. Bostwick was here yesterday, but has had to leave to-day. Colonel Olin's remarks included the American Library Association as one of those associations for whom he could give a general assent to the bill substantially as it stood. Coupled with that, however, should, I think, be before you this entry in the record of our conference in March last. At that conference these provisions were, I believe, substantially (as far as they regarded libraries) as they stand in the bill, except that one proviso has been added, which is rather in favor of libraries, as we understand it, than otherwise. They expressed themselves then thus: Mr. HILL. There is very little that I need to say. The paragraph relating to the copyright respecting the libraries has been taken up very carefully by the executive board and the council and by the delegates, and we are satisfied as an association with the draft as submitted, and, personally, I approve of the change which has been agreed to this morning between the publishers and the delegates. That related to the additional proviso that they should not be prohibited from importing foreign editions in these exceptional cases, where they could not get the American edition. I think it is only fair to state, Mr. Librarian, that while the executive board and the council of the American Library Association have both voted for the adoption of this draft there will be individual opposition. There are some librarians and some libraries that are opposed to any change in any part of the law which affects importation, and so have reserved the right to oppose that part of the bill. I think it is due to you that such statement may be made, so that you may know the individual opinion as well as the general one. If Mr. Bostwick had been here, he would to-day have called attention to that. I do it simply because those delegates are not here to say that; and I do it in order to give Mr. Cutter's remarks a proper standing before you. Mr. Cutter, as I understand it, represents librarians and libraries who object to any diminution of the present privileges. (The papers referred to during the foregoing statement by Mr. Putnam are as follows:) THE NEW WILLARD, _Washington, D.C., June 7, 1906_. _To the honorable Joint Committee of the Senate and House of Representatives._ GENTLEMEN: Referring to the proposed bill to amend and consolidate the acts respecting copyright, now before the committee, I would propose the following amendments: Amend section 3 (p. 3, line 8) by adding continuously at the end of said section the following: "_And provided_, That no devices, contrivances, or appliances, or dies, or matrices for making the same, such as referred to in clause (g), section 1, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright." Amend section 5 (p. 4, lines 2 to 3) by adding, between lines 2 and 3, before the word "photographs," the following: "(j) talking-machine records." Amend section 18, clause (b) (p. 14, line 14), by adding, between the word "composition" and the word "any," the words "any talking-machine record;" Amend section 23 by striking out from the clause marked "First" (p. 17, lines 18 to 20) the following: "or any device especially adapted to reproduce to the ear any copyrighted work." Amend section 23 by inserting in the clause marked "Fourth" (p. 18, line 4), between the words "of" and "all," the following: "any device, contrivance, or appliance mentioned in section 1, clause (g) and". Hoping that these proposed amendments will meet with the approval of the committee, I remain, Yours, very respectfully, HORACE PETTIT, _For Victor Talking Machine Company_. JOS. W. STERN & CO., MUSIC PUBLISHERS, _New York, June 5, 1906_. Dr. D. P. LEWANDOWSKI, _Care of Raleigh Hotel, Washington, D.C._ MY DEAR DOCTOR: We herewith authorize you to represent us and speak in favor of the copyright bill at the meeting of the committee. Honorable Senator Kittredge, or any other honorable gentleman who will do anything to further the passage of this bill, will earn our everlasting gratitude and will be working for the advancement of an industry which has been sorely oppressed by piracy and injustice. There is an excellent opportunity now to show fair play to a body of citizens who have been working at a disadvantage and fighting for years for their just rights and for proper and adequate protection from the Government. With best wishes, we remain, Yours, very sincerely, JOS. W. STERN & CO. _To the Committee of the Senate on Patents, Senator Alfred B. Kittredge, of South Dakota, Chairman._ GENTLEMEN: I appear before you this morning in the name and as the representative of the firm of Jos. W. Stern & Co., music publishers, of New York, and in their behalf I wish to state that the bill on copyrights S. 6330, to amend and consolidate the acts representing copyrights, which is before you this morning, is of the highest importance, for the protection of the authors and composers and music publishers, to protect their copyrights. The old law is very vague and unsatisfactory. The proposed new law would help music publishers and composers very much. There has been a great deal of piracy going on and their best "hits" have been copied and pirated. The new law makes such piracy a criminal offense, punishable by fine or a year imprisonment. If passed, as we hereby most humbly pray that it should be so, it will punish the pirates, because the fine alone can not stop their unjust deeds, and they laugh and pay their fine, but a year of imprisonment will certainly change all for the best. The said pirate would not risk a year of prison at all times. Then again, the new law provides that no phonograph company or any makers of musical instruments, as well as makers of self-playing pianos, can deliberately use the work of the brain of the composer as well as the property of the publisher without permission to do so or paying some remuneration for the same. Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense the rights to the same and copyrights it. Along comes the phonographic companies and companies who cut music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for the said publisher's or composer's rights. They sell thousands and thousands of the "hits" of the publisher, which he has worked hard to make, without paying, as stated before, a cent of royalty for them. The new law proposed remedies this, but of course the phonographic companies are fighting the new bill tooth and nail. In this brief outline I shall include another important statement to show how much work, and anxiety of the brain a composer must use to write something in poetry or music, and what anxiety and worry he endures until the said "hit" is an accomplished fact. Sometimes his entire family depends upon the publishing of this brain work, and when it is accepted and the publisher issues the same for the public's appreciation, behold, in the next few days every sort of instrument is playing this man's composition. I for one have suffered this injustice and piracy. Therefore I feel how dreadful it is in general to suffer and to be deprived of remuneration for the just and intelligent inventive brain work which a man produces by his genius. This is, gentlemen, an excellent opportunity to show fair play to a body of citizens who have been working at a disadvantage and fighting for years for their just rights and for proper and adequate protection from the Government. I conclude by appealing most earnestly and respectfully to the honorable gentlemen of the committee to do their utmost to forward the passage of this bill, and I am convinced that they will earn everlasting thanks and gratitude for creating a law which will earn for them recognition and will carry their name to history for having worked for the advancement of an industry which has been sorely oppressed by piracy and injustice. Believing that my most humble indorsement of this new law and the desire of the firm of Jos. W. Stern & Co., who have authorized me to address this body in their behalf, will soon be upon the statute books protecting copyright, I have the honor to remain, Very respectfully, yours, D. P. LEWANDOWSKI, M.D. 34 EAST TWENTY-FIRST STREET, _New York City_. A. W. ELSON & CO., EDUCATIONAL ART PUBLISHERS, _Boston, June 5, 1906._ HERBERT PUTNAM, Esq., _Librarian of Congress, Washington, D.C._ DEAR SIR: As I do not expect to be able to be present at the first hearing of the copyright bill which is now introduced in Congress, I write to ask whether the suggestions that are made on the accompanying sheet can be placed in the hands of the committee. I should like to appear in favor of these suggestions at any subsequent hearing that may be given by the committee on the bill. I have arranged the suggestions in the order of importance from my own particular standpoint. As this may reach you during or after the hearing before the joint committee of the Senate and the House, I have mailed a duplicate of this to the chairman of the committee. Very truly, yours, A. W. ELSON. _Suggestions of additions and amendments to the copyright bill introduced before Congress May 31, 1906, entitled "A bill to amend and consolidate the acts respecting copyright."_ _Section 5 (subsection J)._--That the words "and negatives" be added after the word "photographs," so that subsection J shall read: "Photographs and negatives." Negatives are made the subject of copyright under the present copyright law, and there seems to be no valid reason why they should be omitted in the new copyright statute. It would very much simplify the copyrighting of all photographic reproductions if negatives were made the subject of copyright, and for the purpose of registration two prints of the negative copyrighted should be filed in the copyright office. I would therefore suggest that the following words be added to section 11, seventh line, after the word "edition," "or if the work be a negative, two prints made directly from it." _Section 13._--In this section typesetting and the lithographic process are singled out from all other processes connected with the manufacture of printed books, and given distinct protection from foreign competition over all other processes in making books that are copyrightable in the United States. Any such discrimination is unjust, and if this section is retained, the protection should be broadened to include any other processes besides lithography. I would therefore suggest that section 13 be amended as follows: After the words "lithographic process," in the seventh line, and after the same words on page 6, first line, nineteenth line, and thirtieth line, there be inserted the words "or any other process or method," and after the words "a process," in the same line, the words "or method." That the word "lithographs" in the second and third lines of the same page be erased, and the word "illustrations" be inserted in place of it; and on the same page, in the third line of that portion of section 13 on that page that the words "where" and "either" be erased. My preference would be to see the whole section dropped out, but failing in this no undue preference should be shown any one or two methods connected with the manufacture of books. _Section 39._--In its present form could be made clearer if it is intended to secure to an author of an original work of the fine arts any copyright which he may have obtained under the statutes on his work. On the other hand, if the section is intended to secure to an author or artist any potential copyright in a work on which he had not duly secured statutory copyright, then such provision, it would seem, would be unreasonable and unjust to the purchaser of the work; and I would therefore suggest the following wording for this section: "The author of any original work of the fine arts being the owner of such a work and having copyrighted it according to the provisions of this act or any previous United States copyright act, and who has marked upon such original work such notice of copyright as may be required by the act under which the work was copyrighted, shall not be deemed to sell or transfer said copyright upon selling or transferring the original work of art unless an agreement in writing covering the transfer of said copyright be signed by the author." _Section 37._--Is open to the same criticism as section 39. It might be corrected by the following changes, viz: That in the third and fourth lines the words "which is the subject of copyright" be struck out and the word "copyrighted" substituted for them. _Section 8._--In providing the conditions under which a foreign author or proprietor of any work may obtain copyright on such work within the United States, section 8 grants certain privileges to a foreign proprietor which are not granted to an American proprietor of a foreign work; as, for example, an American proprietor of a foreign painting who desired to copy and publish it in this country. I would therefore suggest that section 8 after the words "provided, however" in the fifth line and through subsection (_a_) read as follows: "That copyright secured by this act shall extend to the work of an author who is a citizen or subject of a foreign state or nation only when such author or the proprietor of the work (_a_) shall be living within the United States at the time of the making and first publication of the work or shall contemporaneously with publication in some foreign country publish the work within the limits of the United States." A. W. ELSON, _146 Oliver street, Boston_. NEW YORK, _June 4, 1906_. HERBERT PUTNAM, Esq., _Librarian of Congress, Washington, D.C._ DEAR MR. PUTNAM: I regret to find myself, after the strain of breaking up my home, totally unable to attend the meeting of the Senate and House committees on the 6th. In fact, it is out of my power to go to Washington this week for either the formal or the informal discussions. It seems to me that my time of active work, relative to copyright, is about ended; and possibly I ought to resign from the presidency of the American Copyright League. I am no longer the president of the National Institute of Arts and Letters, Professor Sloane having become my successor. I think the later draft of your bill is in excellent shape as a basis for consideration by the joint committee. Respectfully, yours, EDMUND C. STEDMAN. LEO FEIST, MUSIC PUBLISHER, _New York, June 1, 1906_. Hon. HERBERT PUTNAM, _Librarian of Congress, Washington, D.C._ DEAR SIR: Very many thanks for your courteous communication of the 29th instant, and I assure you that I appreciate the compliment paid in the sending thereof. If all is well, Mr. Witmark and myself will be at the conference. Earnestly hoping that the bill will be passed in its present perfect form, believe me, Very truly, yours, LEO FEIST. WILCOX & BULL, COUNSELORS AT LAW, _Buffalo, N.Y., June 5, 1906_. Hon. HERBERT PUTNAM, _Library of Congress, Washington, D.C._ MY DEAR MR. PUTNAM: I beg to acknowledge, with thanks, various circulars and documents relating to the new copyright bill, including the proof copy of the bill as printed May 19, and the printed copy of the bill as introduced May 31, with notices of the first hearing before the joint committees of the Senate and House, on Wednesday, June 6, at the Library building, and of the preliminary conference to be held to-day, all of which have had my careful attention. I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it, and particularly of yourself and Mr. Solberg. I am proud to have had any share, however slight, in outlining it, and shall be glad to take part as actively as possible in urging it upon Congress and commending it to the people at large. As affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened. The Consolidated Lithograph Company has suggested that I attend the hearing in Washington to-morrow. I should like to do this, at least for the purpose of showing the interest which we feel in the measure and to assist in impressing the committees of Congress with its importance, though I know that after this hearing the bill will simply lie over for further consideration and for action at the next session. But it seems impracticable for me to be in Washington to-morrow, and I think that I can be of more service at a later time, when I hope that the company will still be disposed to send me there. Very truly, yours, ANSLEY WILCOX. P.S.--Will you please send me an extra copy of the bill, or two if you have them to spare? STATEMENT OF WILLIAM P. CUTTER, ESQ., OF THE FORBES LIBRARY, NORTHAMPTON, MASS. Mr. CUTTER. Mr. Chairman and gentlemen, I claim to represent no association, nor to represent myself personally. I claim to represent only the public libraries of the following cities: Chicago, St. Louis, Baltimore, Louisville, Pittsburg, Newark, Minneapolis, Los Angeles, and Springfield, Mass. Also the libraries of the following universities and colleges: Yale, Cornell, Colgate, Wisconsin, Michigan, Amherst, and Brown; the New York State Library and the Connecticut State Library; the Western Massachusetts Library Club, comprising a membership of forty libraries, and the Connecticut Library Association, representing the organization of libraries in Connecticut. I wish to speak a few moments on that provision contained at the bottom of page 24 of the Senate print of the bill. Mr. WEBB. What section? Mr. CUTTER. Section 30; the third subsection of section 30, at the bottom of page 24, line 25, including all after the words "United States"--in other words, that portion of the bill which prohibits importation by public institutions of a certain class of books. You are well aware of the fact that existing law allows public libraries to import two copies of any book without any restriction as to what the book shall be. There are certain points that will make the suggested legislation a great hardship to the libraries. Mr. CURRIER. Pardon me just a minute. Can you import two copies of an unauthorized edition? Mr. CUTTER. Yes, sir. Mr. CURRIER. Can you do that to-day? Mr. CUTTER. Yes, sir; we can now. Mr. CURRIER. A fraudulent reprint, for instance? Mr. CUTTER. Yes, sir. Mr. CURRIER. There is absolutely no restriction, as you understand it to-day? Mr. CUTTER. There is no restriction at all, as I understand, on library importations; but there is in this bill in regard to it. Mr. CURRIER. I was asking about existing law. Mr. CUTTER. Yes; I understand that libraries can import any books that they wish. Mr. CURRIER. I had the contrary opinion, but I may be mistaken. Mr. CHANEY. You object to that entire part of the bill, do you? Mr. CUTTER. Yes; I object to it principally for this reason: In importations for large libraries, such as those that I represent--it does not apply to small libraries which import only a small number of books--a case of books will come in from abroad, books that are not copyrighted in this country, English books. One book in that case might, by a mistake, be one which was copyrighted here, printed in England, and containing no notice of its copyright in the United States of America. If that fact was discovered it would send all of that box of books to public store; it would place all the box of books, as I understand, in danger of being destroyed; and it would place the librarian who did the importing in danger of having to show the Secretary of the Treasury, under this law, that he was not guilty of trying to import that book illicitly. Mr. CURRIER. Under what section of this law? Let that go in the record right here. Mr. PUTNAM. Sections 28 and 29, I think. Mr. CUTTER. Section 28 is in regard to the condemnation, on page 21 of the Senate print. Sections 26 to 29 include the penalties that I have referred to. Our objection to that is the fact that libraries in these days must have at their disposal as quickly as possible the printed thought of foreign countries. If there is any delay in our obtaining the box of books (and those who have had experience, as I have, for thirteen years in importing books for libraries in this country, know that there is often six months delay in getting a box of books through the custom-house where there is the least question as to any of them) it would mean, practically, that our reason for buying the books at that time had disappeared. We want the printed English thought as quickly as possible. Mr. CHANEY. Do you think that is necessary to the efficiency of a public library? Mr. CUTTER. I do. Mr. CHANEY. That you should get those books immediately? Mr. CUTTER. I do; yes, sir. Now, my other reason is a commercial reason; and in order to state it I shall have to go somewhat into ancient history. About the year 1901 certain publishers of this country formed an association called the American Publishers' Association, and, in conjunction with the American Booksellers' Association, entered into an agreement to control absolutely the selling price of books in this country. It was an agreement among the publishers that they would not furnish books to booksellers who would not agree to sell the books at a standard price--in other words, a trust proposition. Mr. CHANEY. We have heard of trusts before. [Laughter.] Mr. CUTTER. The libraries were granted a 10 per cent discount from the price of the class of books affected by this agreement, so-called net-price books. We discovered, however, on examination, that these new prices which were fixed were so much higher that the net result to us was an advance of 25 per cent in the price of the book, and we found that the majority of those books were not books written by American authors, but they were books written by English authors and copyrighted in this country, and that there was a difference in price amounting to the 25 per cent tariff on printed books. So that this question, gentlemen, is a question of trusts and a question of tariff. Now, the librarians have been getting around that by importing English books, because the same book printed on the other side is sold in the case of these expensive books at a very much reduced price compared with the price on this side. If--I am going back now to my first position--if I am prevented, by the difficulties in getting through, by accident, a copyrighted book, from getting at the noncopyrighted book so long, then I will be forced to go to Mr. Scribner, who will buy the books for me abroad at his price, against my interest. Senator MALLORY. Do I understand you to say that that book trust is still in operation? Mr. CUTTER. Certainly. Now, I am connected with a library that spends $12,000 a year for books in a country town. Of this sum $5,000 is spent for English books. I am a representative of a city government which taxes itself to a certain extent to educate the people in its community, and I object seriously to paying $1,000 of that $12,000 to American publishers as a tax. That is my point. Mr. CURRIER. What changes in this bill do you suggest? Mr. CUTTER. I should suggest the entire elimination of that provision. Mr. CURRIER. Of the entire paragraph? Mr. CUTTER. No; after the words "United States." Mr. CURRIER. That was the suggestion I made some time ago--after the words "United States," in line 25. Mr. CHANEY. Yes; precisely. Mr. CURRIER. Would that be satisfactory to the people whom you represent? Mr. CUTTER. That would be satisfactory. I think it would be satisfactory to all librarians. Mr. HINSHAW. This would allow you to import, however, but one book, whereas you have had the privilege of importing two? Mr. CUTTER. One book, but we are perfectly satisfied with that. I think any library would be. A ruling of the Treasury Department has held that a branch library is a library itself, so that in the case of a large library wanting a book for each of several branches it would be possible to import more than one. Mr. CURRIER. With that stricken out, the people you represent would not object to sections 26, 27, 28, and 29? Mr. CUTTER. No; it does not affect them. The other point I wish to make is on behalf of another interest. I wish to speak a word in behalf of an interest which is not represented here at all--two interests, in fact. The first is the firms that are in the business of importing books into this country and are not represented and have not been asked to be represented; have not been asked to come to these meetings. There are certain firms that are not in the publishing business that are in the business of importing books. Mr. CURRIER. I think we ought to say right there, as you say they have not been asked, that the committee invites everybody. Mr. CUTTER. Yes; I mean up to this time they have not been asked. Mr. CURRIER. Those who were not represented at the conference, as well as those who were. Mr. CUTTER. Whether they were asked here or not I do not know. Of course, this being a public hearing, they had a right to appear. But the point I want to make is this: That a great many of our libraries have to import books through these men, because they get a cheaper rate of importation through them than through some of the firms that are also publishers of books. This would prevent the importation of some of these books through those firms. It would practically ruin their English business, largely ruin it; and on behalf of a library that uses that method of importation largely, it seems to me that some provision might be made for other importers than those who are publishers of books. Those are the only arguments that I wish to present. Mr. CHANEY. To what section of this bill do you now refer? Mr. CUTTER. I am referring to the subsection of this same section on page 24--section 30. Mr. CHANEY. Do you mean subsection E? Mr. CUTTER. Yes. Mr. CURRIER. No; the subdivision called "First." Mr. CHANEY. Oh, I see. Mr. CUTTER. I suggest this amendment to the clause reading, "When imported, not more than one copy at one time, for use and not for sale, under permission given by the proprietor of the American copyright." I suggest leaving out the consent of the American copyright proprietor. That changes existing law only in these particulars: It allows the importation of only one copy instead of two copies, as the existing law does; it gives the importer who has established a business here based on legislation, and who is closely in touch--the firms that I speak of serve libraries and learned men mostly with expensive books and have practically no sale to the ordinary public--it would give them an opportunity, and it would give a scholar in this country who wants a book for a particular purpose for his own use and not for sale an opportunity to import it. Mr. CHANEY. So that if you strike out "under permission given by the proprietor of the American copyright" it satisfies them? Mr. CUTTER. It would satisfy the request of the importers, who are not publishers. Mr. CURRIER. Do you appear for the importers? Mr. CUTTER. I appear for one of them only. The CHAIRMAN. Do you feel that you are authorized to speak for the others? Mr. CUTTER. I am authorized to speak for one firm only. The CHAIRMAN. Do you feel that you represent the other importing firms? Mr. CUTTER. I do not; no. I am quite convinced that I would be allowed to represent them, but I have had no communication with them. Mr. BONYNGE. But you think you state their views on the subject? Mr. CUTTER. I have not any doubt of it. Mr. CHANEY. You spoke of "ancient history" back as far as 1901. Do you regard anything back behind that as ancient history? Mr. CUTTER. No; but it is ancient history in the book business. That is when the publishers of this country discovered that the Carnegie gifts had made the library trade so large that they must do something to make some more money out of it. Mr. PUTNAM. With your permission, Mr. Chairman, I would suggest that Mr. Bethune, representing certain of the reproducing interests particularly--I ought not to limit that by the word "reproducing," but who represented at the conference the Reproductive Arts Copyright League--should be heard. STATEMENT OF FANEUIL D. S. BETHUNE, ESQ. Mr. BETHUNE. There are but two or three sections which the Reproductive Arts Copyright League wish at this time to comment upon. Mr. Millet, on behalf of the artists, has stated that they are satisfied with the sections relating to paintings as they stand, but as I understand it the word "accessible," in section 14---- Mr. CHANEY. Whereabouts? Mr. PUTNAM. It is the last line on page 10 of the bill. Mr. CHANEY. I see. Mr. PUTNAM. It is in the second paragraph in the Library print. Mr. BETHUNE. That is such an indefinite, uncertain term that we think---- Senator LATIMER. What are you referring to; what term? Mr. BETHUNE. The word "accessible"--"or if a work specified in subsections F to L, inclusive, of section 5 of this act, upon some accessible portion of the work itself or of the margin," etc. Mr. CHANEY. Where would you put it? Mr. BETHUNE. Let it be on some accessible portion, but let the bill provide that it shall be always uncovered. As it stands now, it might be on the back of the painting, and the painting might be in a box, and it would be accessible in a sense. Mr. CHANEY. You would put in the word "uncovered?" Mr. BETHUNE. It should be uncovered. Mr. PUTNAM. Accessible and uncovered? Mr. BETHUNE. Accessible and uncovered. We want to be able to ascertain at once by examining the painting in the frame, if it is in a frame, whether the picture is copyrighted or not. Section 9 provides, about the fifth or sixth line, that "in the case of a work of art" the notice "shall be affixed to the original before publication thereof." The word "publication" is not defined, and it has been the source of considerable litigation as to what is and is not publication. The CHAIRMAN. Has that been settled by the courts? Mr. BETHUNE. It has not been settled by the courts. There are differing decisions now. Mr. CURRIER. Is it not ordinarily understood to be the putting on sale of the object? Mr. BETHUNE. No; I think not--not if it is a private sale. I think a sale should be specifically stated by the statute to be a publication, whether a private or a public sale, and the public exhibition of a painting should be a publication of it. Mr. CURRIER. Will you suggest an amendment that will meet your idea? Mr. BETHUNE. I am not prepared to suggest an amendment, but I shall do so in writing to this committee, if I may. Mr. CHANEY. In a general way, what is your idea? Mr. BETHUNE. That the statute should state that certain things shall constitute publication of a work of art, and state that publication shall include a sale, whether a public or private sale, and a public exhibition of the work of art. I must refer again to section 14. That provides that not only in respect of paintings, but also maps and photographs, the notice can be on the back or the margin. Now, so far as a painting is concerned, that is quite satisfactory to us if the notice is to be "uncovered," but in respect of a photograph, which may be very loosely attached to a little piece of pasteboard, and the notice may be put on the pasteboard, which could be very easily removed from the photograph. The reproducer to whom the photograph is then brought, there being no evidence of its having been detached from any mount, may be easily misled, and before he discovers that he is infringing he may have invested thousands of dollars in the undertaking to reproduce it. Mr. CURRIER. Then your suggested amendment, "uncovered," does not meet this objection, which you now state, at all? Mr. BETHUNE. It does in respect of the painting, but I do not think that so far as the photograph is concerned the law should permit the notice of copyright to be simply on the thing to which it is attached or mounted. It should be on the photograph itself. I think that that will prevent litigation and expense to both photographers and reproducers. Mr. PUTNAM. Mr. Chairman, may I ask Mr. Bethune to state whether, under the present law, the notice can be put on the mount of a photograph? Is that your understanding--that it can not be, and that this is an extension of the privilege? Mr. BETHUNE. I understand that it can under the present law. Mr. PUTNAM. That it can now; so that this simply repeats the privilege. Mr. MCGAVIN. An objection was made here yesterday, I think, on the ground that it would deface the photograph. Mr. BETHUNE. Yes; that objection has been made by the photographers; but I leave it to the intelligence of this committee---- The CHAIRMAN. And in case of a fine picture, for instance, the artist might object to having the words prescribed by this act appearing permanently upon the face of the picture. Mr. BETHUNE. Yes, he might; but as a matter of fact, I am informed that there are very, very few artists who do not insist upon putting some mark, if not their name, upon the face of their painting. The CHAIRMAN. Can you call attention to that section? Mr. BETHUNE. There is no section in this bill providing for the placing of the notice upon the face of the painting; but, I say, there are very few artists, I am informed---- The CHAIRMAN. Where is the section that prescribes the form? Mr. BETHUNE. Section 14. Mr. MCGAVIN. On page 10. Mr. BETHUNE. It may be simply a "C," with a little circle around it. Senator MALLORY. Do you object to the word "accessible" here, on line 10? Mr. BETHUNE. Yes; the word "accessible." Mr. PUTNAM. Except as coupled with the word "uncovered." Mr. BETHUNE. Yes. Mr. MCGAVIN. If this language were made to read "accessible and uncovered," it would necessarily, then, require that it be placed upon the face of the photograph or picture, would it not? Mr. BETHUNE. No; I think not. Mr. MCGAVIN. You could not put it on the back, where it would be uncovered? Mr. BETHUNE. No; I do not think that that would be covered---- Mr. CAMPBELL. How about the word "visible?" Mr. BETHUNE. "Visible" was the word which I suggested at the conference. I do not know why it was not put in. Mr. PUTNAM. I may say, Mr. Bethune, if you will permit me, Mr. Chairman, that this question of notice was a long-discussed question between the artist group and the committee of the reproduction group; and they started, of course, at very opposite extremes. We understood finally that they reached this point: That in the first place there should be a notice. That was a concession on the part of the artist group, who thought there ought not to be any notice except their own name. That there should be a notice--that is, something to indicate copyright, even if it should be only "C" within a circle--was insisted upon by the reproducing group. So that it was agreed that there should be something to indicate copyright. Where should it be? Now, the present statute uses the term "visible;" but the reproducing group said (if I am wrong, Mr. Bethune will correct me): "We do not care that it shall be visible in the sense that he who runs may read it. We do not care, even, that it shall necessarily be on the front of the painting. It may be on the back of the painting. It must not be on the frame, because the frame is a detachable thing. People's tastes as to frames differ, and one collector likes one, while his successor may prefer another, and he will change the frame, and with it goes the notice. It must be on the thing itself"--that was their contention--"but it may be on the back." Now, if it is on the back, is the word "visible" descriptive? We wanted to get some word that would indicate that it might be put in some place where it could be found by somebody looking for it, and that was the requirement of the reproducer that somebody with a sincere desire, not with a malicious intention to appropriate it, but with a sincere desire to find out whether it was copyrighted or not, might find out with a reasonable search intending to look for it. That was satisfactory to them and that was the endeavor in using the word "accessible." Now, it is that little doubt which Mr. Bethune has suggested to you. Would it cover the back? And would it cover and prevent a case of covering it up? The notice might be covered up. So he has suggested the addition of the words "and uncovered," but the use of the word "accessible" rather than the word "visible" was to endeavor to express what we understood to be agreed to, as the agreed intention. Mr. BETHUNE. I think it will express it if "uncovered" is added. Mr. PUTNAM. I should add that the reproducers definitely objected to the privilege on the part of the photographers, and so on, the print publishers, etc., of putting the notice on the mount; but of course it was understood that they had that privilege at present. They have that privilege at present, but the reproducers never thought that that was reasonable, and did not concede it to be reasonable. Mr. BETHUNE. Now, reproducers are open to fraudulent attempts to sell to them copyrighted works by simply removing the notice of copyright, and section 25, in the draft of the bill, imposes simply a penalty of $100 as a minimum and $1,000 as a maximum fine for the removal of this notice. We think that the punishment should be imprisonment as well as fine. We want to protect ourselves from that fraud, which is very frequently encountered. Mr. CHANEY. So that that paragraph of that section as it stands is satisfactory to you? Mr. BETHUNE. Section 25, sir? Mr. CHANEY. Yes. Mr. BETHUNE. No. We want, as well as a punishment by fine of not less than $100, the words inserted "or imprisonment" or "and imprisonment," both for a specified term; it is not material how long it shall be. Mr. WEBB. Have you suggested your amendment to this section 14 that some word instead of "accessible" should be used? Did you suggest "visible"? Was that your idea? Mr. BETHUNE. That was the word which we did suggest, but "accessible" is satisfactory to us if "uncovered" is coupled with it. Mr. WEBB. You want it to read "accessible and uncovered"? Mr. BETHUNE. Yes. Mr. WEBB. Would that apply to a magazine picture--a picture in a magazine that had the notice on the back of the original? You could look for it, and it would be uncovered. Mr. BETHUNE. In the case of a magazine, as I understand, it would be covered by the copyright of the magazine. Mr. WEBB. Well, that is all right; I did not understand how that would be. Mr. BETHUNE. Those are the principal features---- Senator MALLORY. I would like to ask you with reference to that suggestion which you were referring to in regard to publication in the matter of a work of art, or a plastic work or drawing. Is there any definite suggestion that you could make, any definite change, so as to convey your idea? I think I know what you want; but it seems to me it is going to be pretty difficult to use an expression there that will convey the exact idea that you desire. Now, in the matter of a work of art, as long as it remains in the hands of the creator of it, one would think it would not be necessary, but it was suggested to me by the chairman here that even the maker of the work of art might want to copyright it, although he did not intend to sell it; he would want to prevent people from infringing on it. Mr. BETHUNE. Precisely. Senator MALLORY. And yet there would be no publication; he could keep it in his own library. Mr. BETHUNE. He has the right to copyright it at any time he pleases, before publication. Senator MALLORY. I know that; but the point is, What does the word "publication" here mean? And I would like to know, if you have given the thing any thought, if there is any suggestion you could make? Mr. BETHUNE. Yes, sir; I think the term "publication" should be explained. I do not think we can define altogether what "publication" is; but we can state that certain things shall be included within "publication." Senator MALLORY. What is your suggestion? Mr. BETHUNE. I think that sale, whether a public or private sale of the painting, and the public exhibition of the painting, should be construed as a publication. Mr. WEBB. You suggest inserting after "original" "before publication, exhibition, or offering for sale?" Mr. BETHUNE. No, sir; I should let "publication" stand there, but I should qualify or partially define in another section what "publication" is---- The CHAIRMAN. Is there not danger in making such definition? Mr. BETHUNE. No; I think not, if you state what it shall include, or rather what shall be included in it. The CHAIRMAN. Suppose we define publication in the manner you suggest, would there not be difficulty in cases not covered by that definition? Mr. BETHUNE. I think not, sir. The CHAIRMAN. Might not the courts construe that definition as covering all classes of publications? Mr. BETHUNE. Not if the statute specifically states that those expressions are not meant to be an exact definition of all that publication includes, and I think that can be very easily done. The CHAIRMAN. We would be very glad to have your suggestion on that point. Mr. BETHUNE. I should be very glad to submit it if you will be kind enough to permit me to do so. There are some other matters which I do not care to take up your time with now, and will do so in writing. Mr. CHANEY. Is your idea of expressing and defining "publication" for the purpose of limiting the word "publication?" Mr. BETHUNE. Not altogether; no, sir. I think that both the reproducer and the artist should know the exact situation at the very outset. If the artist exhibits a painting in a gallery and people pay fifty cents or nothing to go in and look at the painting, although there is a restriction, perhaps, made by the artist upon copying that painting, when the painting goes to that exhibition he should know at once, and the reproducer should know, that that being a public exhibition is a publication of the painting, and if the copyright notice is not on it then the artist has lost entirely the right to copyright it entirely. Mr. CHANEY. You are aware of the fact that if you undertake to define "publication" you do limit it to whatever you say it is? Mr. BETHUNE. I do if I attempt to fully define it, but I should not attempt to so define it. I should attempt to say that certain things should be embraced in the term "publication." Mr. CHANEY. Do you not thereby exclude everything else? Mr. BETHUNE. No, sir. Mr. PUTNAM. If Mr. Bethune will permit me, Mr. Chairman, the attention of the committee may not have been called to the fact that there is a definition of the date of publication where copies are reproduced for sale or distribution. That is in section 63. It is limited to that because, after discussion, the conference did not seem to be able, or none of our advisers seemed to be able, to suggest a definition for "publication" in the case of works of art, for instance, of which copies are not reproduced. It seemed to those who were advising us a dangerous thing to attempt. Mr. BETHUNE. I think it would be, and I would not undertake it, but I think you will save trouble and expense to both the artists and the reproducers if you will say that the sale, whether private or public, and the public exhibition, shall be a publication of the painting. Mr. WEBB. That is what I asked you a while ago--if you did not think, speaking of "publication" here, that it would be sufficient if you were to let it read "public exhibition or offering the same for sale," either public or private sale? Mr. BETHUNE. To be included in the term "publication." Mr. WEBB. But can you think of any other instance where publication would mean something else than those things? Mr. BETHUNE. No; I can not for the moment, but I think there is danger, as the chairman has just stated--there may be many things which do not occur to me now, or would not occur to this committee, which should be contained in a definition. Mr. WEBB. I think you would complicate it very much if you used the word "publication" generally, and then undertook to define "publication" also, and intended that "publication" should cover more points than you specified. Mr. BETHUNE. Why, sir, this bill starts in and says that all the works of an author may be copyrighted. It then specifies some of the things, and it then says that the things specified are not all that may be included. Mr. WEBB. I understand that; but you, a man who is expert in these matters, can not state to us what other points would be covered than public exhibition or offering the same for sale. Mr. BETHUNE. I am not a reproducer; I am a lawyer, and the reproducers may be able to advise me. Mr. CHANEY. A lawyer is an originator always. [Laughter.] The CHAIRMAN. You spoke earlier in your remarks about the decisions of courts on this subject. Mr. BETHUNE. Yes. The CHAIRMAN. And the lack of uniformity of the decisions relative to publication. Is not that fact due to the conditions which you now describe, and which have been suggested by different members of the committee--because what may be publication in one copyrightable article may not be publication in another? Mr. BETHUNE. Yes, sir. For that reason---- The CHAIRMAN. Now, then, if the courts, with this attempt to define publication, have found difficulty and have differed, is it not because of the different character of the articles that have been involved in the litigation before the courts? Mr. BETHUNE. No; it is the same article that I have in mind. There is one Massachusetts case, a Federal case, where, in the case of a public exhibition of a painting, the circuit court of appeals in the first district held that that was a publication of the painting. Mr. CAMPBELL. Was the exhibition given for hire, for profit? Mr. BETHUNE. Yes; my recollection is that it was a public exhibition for hire. Subsequently another case---- Senator MALLORY. It held that that constituted publication? Mr. BETHUNE. That that constituted publication. Senator MALLORY. It did not define what publication was any more than that? Mr. BETHUNE. No; it simply decided that that particular public exhibition was a publication of the work. The CHAIRMAN. In other words, it decided that in that case special acts constituted a publication? Mr. BETHUNE. Yes, sir. Now, the Federal courts in New York State have held the contrary view in respect of a public exhibition of a painting for hire (in the Workmeister cases). Those cases will probably go up to the Supreme Court, but they may not. The CHAIRMAN. What was the argument or the reasoning of the court in the latter decision? Mr. BETHUNE. The Massachusetts case was distinguished, if my memory is correct, on the fine point that in one case there was a reservation--in the one case the artist made some reservation in respect of the use of the painting when he loaned it to the exhibition, and in the other case he did not; but it is just those fine points which we want to eliminate. Senator MALLORY. From what you say, I think it would be well for us to avoid the word "publication" and state just what we want without using the word "publication" at all, if we are going to give rise to diverse decisions and litigation. I think we had better express it, perhaps, in the language which you have--"after sale or exhibition for hire" and "public exhibition." Mr. BETHUNE. Well, there you do limit it. Senator MALLORY. Just express it in those words. Mr. BETHUNE. There you do limit distinctly what would be, in effect, publication, though you do not call it so, and that we do not want. The CHAIRMAN. We would be very glad if you would submit your proposed amendment to the committee later. Mr. PUTNAM. Mr. Chairman, I understand that Mr. W. A. Livingstone, representing certain reproducing interests, and Mr. McDonald, representing the National Photographers' Copyright League, wish to have a note recorded--not to argue a point, but simply to have a note recorded in the minutes. STATEMENT OF WILLIAM A. LIVINGSTONE, ESQ., OF DETROIT, MICH. Mr. LIVINGSTONE. Mr. Chairman, I simply wish to state two things in contradiction of the last speaker. I stand here for a large reproductive interest, and consequently we are speaking also from the standpoint of the reproducer. We dissent very strongly from his opinion and we support the bill in respect to notice as it now is. That is all we wish to say now. Mr. WEBB. You want the word "accessible" kept in just as it is now? Mr. LIVINGSTONE. Yes, sir. Mr. WEBB. What do you understand that to mean? Mr. LIVINGSTONE. I understand that to imply that that notice must be easily get-at-able in the painting or other object. Mr. WEBB. Well, "accessible" means "get-at-able." Mr. LIVINGSTONE. Yes, sir. Mr. WEBB. But you have not got "easily accessible" in here. You have got "accessible," simply, whether with difficulty or whether with ease. Mr. LIVINGSTONE. In the case of a painting or work of art it is very easy--you can hardly conceive of a case where, if the notice is accessible at all, it can not be obtained. Mr. WEBB. Well, why should you object to the word "uncovered"--"accessible and uncovered?" Mr. LIVINGSTONE. Because if you include the word "uncovered" you then impose some other conditions which are the result of that term, as, for example, you may compel the notice to be on the face. I will give a concrete illustration that is easily understood. Suppose you have a very small miniature which is very delicately painted. You can not put that notice across the face of the miniature, and yet you can take the miniature in your hands and turn it over and find the notice in an accessible place with ease. Mr. WEBB. Do you think, though, that "accessible and uncovered" means putting it on the front of the painting or photograph? Could it not be on the back and be still uncovered on the back? Mr. LIVINGSTONE. The painting may be hanging on the wall. Mr. WEBB. It would still be uncovered. Mr. LIVINGSTONE. Oh, not necessarily; no, sir. Mr. WEBB. As far as the painting itself is concerned, I do not know why you all quibble between "accessible" and "uncovered," and I did not know what was the real difficulty between you on this word "accessible." The word "visible" has been suggested. Mr. LIVINGSTONE. Another case would be this: In certain kinds of sculptures you could not possibly put that notice upon the face of the sculpture without a serious marring of it, without a serious impairment of its commercial value. The law even now takes cognizance of this, and permits you, in those cases, to put it on the bottom or on the back. It may not necessarily be uncovered, but it is accessible. STATEMENT OF PIRIE MACDONALD, ESQ., OF THE PHOTOGRAPHERS' COPYRIGHT LEAGUE. Mr. PIRIE MACDONALD. We wish to stand for the word "accessible" as it has been evolved by the Librarian, and we would wish that in case the word "uncovered" is used it be very strictly defined; that it be defined as to when this picture should be uncovered. If, for example--and remember, please, that I am speaking merely for photographers, and not as a reproductionist--suppose I were to make a photograph of someone, and were to properly and duly mark it with the notice as prescribed by law (for example, a photograph of yourself), and you were to decide that you objected to the notice as being a defacement, and you were to take it on yourself not to take the notice from the picture (because that would be prevented by the proposed law) but to cover it up. It is your property, unquestionably; and it gets to the hand of a reproducer and he says, "This is not uncovered." Therefore I suggest that in case by any chance the word "uncovered" is used, it be very strictly defined. Mr. PUTNAM. Mr. Chairman, there are a great many people here who are interested in behalf of the provisions in the bill proposing protection against the mechanical devices for the reproduction of music to the ear. There are many here who are opposed to the provisions of the bill, and those who are its proponents are in favor of them. They are, of course, very desirous to near the arguments advanced by those who are against them, and, if it be your pleasure, I would suggest that it would be only fair to hear from the opponents of those provisions as soon as possible. I have called as many as I knew of the participants in the conference who cared to say anything at this stage in favor of the bill. One additional participant to those who have spoken, representing the directory publishers--I think that association is not here--states, in a letter: I take this opportunity to say that our association fully indorses the bill as presented to Congress, with the single exception of the final paragraph of section 13. That is the paragraph requiring that in the affidavit as to manufacture the place in which the work was done and the establishment shall be specified. I simply ask that that go into the record as coming from the American Directory Publishers. The CHAIRMAN. What reason is given for that request? Mr. PUTNAM. I understand the reason to be that it would be an undue burden upon the publishers. The CHAIRMAN. In what respect? Mr. PUTNAM. I think perhaps the publishers ought to answer that. It is a specification on which they alleged to the conferences might be inconvenient and difficult in some cases. In the case of directories, the directory publishers said that they were in the habit of having their work done at a great many establishments. Of our general legal advisers, as you have asked me, I feel that I ought to state this: The chairman of the advisory committee of the American Bar Association is not here to state it himself, as he stated it to us: but he was of the opinion that it was not relevant to the affidavit. But I do not see that at this point, sir, this question can be discussed, because the persons who are opposed to this provision are not fully represented here. Of those on the list of participants that cared to be heard at this point I know of no others, except that Mr. Sullivan, who represents the International Typographical Union, not caring to make any argument or statement, but possibly caring to do so later, if he may, would like to say just a word in behalf of the general principles of the bill, or on behalf of the bill as a whole--the feeling of the Typographical Union as to the bill. STATEMENT OF J. J. SULLIVAN, ESQ., REPRESENTING THE INTERNATIONAL TYPOGRAPHICAL UNION. Mr. SULLIVAN. Senators and Representatives, I do not desire to take up any of your time just at this hour, as there are many gentlemen here from out of town who wish to be heard before the committee. I therefore desire to be heard at some future time, as I understand you will have a session of this committee to-morrow; and on behalf of the organization, the International Typographical Union, which I have the honor to represent, I particularly protest against any modification of section 13, known as the manufacturing clause of the copyright law. Mr. CHANEY. Is that in this bill or the present law? Mr. CURRIER. This bill. Mr. SULLIVAN. I refer to section 13, known as the manufacturing clause of the old act and copied in the new one. Speaking also on behalf of my associates from New York, representing 7,500 typographers, we protest against any modification of this law. Mr. PUTNAM. You must make it clear whether you refer to this bill or to the existing law. Are you satisfied with the bill? Mr. SULLIVAN. I refer to the revised bill. Mr. PUTNAM. You are satisfied with the bill as it stands? Mr. SULLIVAN. The Senate bill. Mr. CURRIER. You are referring simply to section 13? Mr. SULLIVAN. Section 13; yes. That is, the old section. The CHAIRMAN. Do you approve in all respects the bill as introduced in the Senate and House? Mr. SULLIVAN. No, Senator; I respectfully beg to differ in this respect--that either through inadvertence or slight mistake in the draft of the bill that has been submitted to the Representatives taking part in these conferences there are six lines bracketed. Mr. PUTNAM. They are not bracketed in the official bill. They were left out of the bill as introduced. Mr. SULLIVAN. I respectfully request that section 13 of the bill as presented to the Representatives taking part in the conferences here be revised in the Senate bill so as to include the paragraph that is bracketed in the draft of the bill sent out to the delegates. Mr. PUTNAM. Well, Mr. Sullivan, I want you to be clear about this. The bill as introduced into Congress did not contain those brackets. That was a draft sent out some time ago, and the bill as introduced in Congress has not those brackets. Mr. SULLIVAN. (after examining the official copy of the bill). That is on page 9; that is all right. Mr. CURRIER. It is right as it is, as we understand? Mr. SULLIVAN. It is right as it is. That is all right, then; we have no objection, Senator, to the bill as it stands. I only wish to say at this time that that bill has already passed the lower branch of Congress. Mr. CURRIER. You refer to section 13? Mr. SULLIVAN. Yes, sir; and Representative Currier knows it has also passed his committee. We respectfully submit the resolution to your hands, and I desire to be heard on it to-morrow. Mr. PUTNAM. Mr. Chairman, with your permission Mr. G. Howlett Davis, of New York, desires to be heard as representing inventors who have allied themselves particularly to these devices for the reproduction of music to the ear. Mr. Davis's suggestion was that as the composers had been heard as the creators of the music in the first instance, one who is engaged as an inventor in the production of these devices should first be heard on the other side. Mr. S. T. CAMERON. May it please the committee, Mr. Chairman, I am one of those who are representing the interests of the talking machines of the country. The CHAIRMAN. Whom do you represent? Mr. CAMERON. I represent the American Graphophone Company of New York. The CHAIRMAN. Do you desire to be heard by the committee? Mr. CAMERON. Yes, sir. I wish to say at this point, however, sir, that with all due respect to the Librarian, it would seem to me that there is no good reason existing why he should depart from the mode of procedure in connection with these talking machines that has been taken in all the rest of the bill--that is, that those who are the proponents for the changes in this bill that are of a very radical nature and very radically different from existing law should present to the committee their reasons for such changes, before hearing from the opponents of the bill. Mr. PUTNAM. I had no intention, Mr. Chairman, of departing from that mode of procedure. I understood that two gentlemen in behalf of these provisions had been heard, Mr. Sousa and Mr. Herbert; and I had also been informed that the other interests, including those of the publishers, did not care to be heard at this point; they were content to have the provision before you as the affirmative. I desire now that the opponents of the bill should have the fullest opportunity, at the earliest possible moment, to present their views to the committee. The opponents have not advised me as to whether they had agreed upon any method of presenting their case. I simply had this suggestion from Mr. Davis which I laid before you, and the fact that Mr. O'Connell, representing ten manufacturers of automatic piano players, also wishes to be heard. Mr. PAUL H. CROMELIN. Mr. Chairman, as the representative of the Columbia Phonograph Company, I should like to know whether it is the purpose of this committee to sit to-morrow. I had promised certain gentlemen in New York City to telephone them between half after 12 to-day and 1 o'clock, so that they can leave on the Congressional Limited and be here to-morrow, if it is your intention to-morrow to hear the opponents of this bill. The CHAIRMAN (after consultation with other members of the committee). We will meet to-morrow morning at 10 o'clock. Mr. CROMELIN. And may I ask also, Mr. Chairman, if it is your intention to continue these proceedings this afternoon? The CHAIRMAN. We will continue this session until about half past 1. Mr. CROMELIN. Thank you very much. Mr. ALBERT H. WALKER. Mr. Chairman, I wish to inquire whether the committee is willing to sit also on Saturday to continue the hearings? The CHAIRMAN (after further consultation). It is the purpose of the committee, if possible, to finish its hearings to-morrow. Mr. WALKER. I wish to suggest to the committee that this bill is incomparably the most important measure that has been before any Committee on Patents of either House of the American Congress at any time since the civil war, and I think it is the most important measure that ever was before any Committee on Patents of the American Congress since the enactment of the patent law in 1836. The CHAIRMAN. It is not the purpose of the committee to deprive anyone who desires a hearing of that privilege. On the contrary, the committee will sit so long as anyone desires to be heard, within any sort of reason. Mr. WALKER. If the Senator will permit me one moment, I am prepared and have been preparing myself through a rather long lifetime to elucidate the subject of copyright law; and I appear before the committee in the interests of the American people and also in the interests of the authors. The CHAIRMAN. How much time do you wish, Mr. Walker? Mr. WALKER. I wish at least two hours, and I can take it at any time at the convenience of the committee, at any day. The CHAIRMAN (after further consultation with the other members of the committee). We will hear you, Mr. Walker, one hour to-morrow morning, if we are unable to reach you to-day, with the privilege of submitting in writing your views if you so desire. Mr. WALKER. If the chairman will allow me to make the suggestion, if I were to be heard to-morrow for an hour, that would probably cut off other gentlemen who would wish to speak much shorter than that, and it would be very convenient for me, if the committee is to sit at all on Saturday, to hear other gentlemen on Friday and let me speak on Saturday. The CHAIRMAN. If we are compelled to hold a session on Saturday, we will hear you on that day; but we hope that the gentlemen who are present to present their views to the committee will finish in such time as will permit you to have your hour to-morrow morning. Mr. WALKER. Then, is it understood that I am to speak first to-morrow morning? The CHAIRMAN. I think not. Mr. CURRIER. There are some other gentlemen here who will want five or ten minutes. The CHAIRMAN. Inasmuch as you prefer to go over until Saturday, if convenient to the committee, I should think that the members from out of town and the other gentlemen here should be first to address the committee. Mr. WALKER. That is very agreeable to me. Mr. SOUSA. I sincerely trust, Mr. Chairman, that in Mr. Walker's discussion it will not be permitted to discuss the copyright of the past. We are not after that. We want a copyright of the future. If he will talk about things that will be for the benefit of the future, I think you should give him the time; but if he is going into a discussion of what was done a hundred or two hundred or three hundred years ago, we do not want it. [Laughter.] That is the past; we want the future. Mr. CROMELIN. Mr. Chairman, I would like to give notice, as the representative of the Columbia Phonograph Company, representing large interests which are vitally affected by this bill; as the representative of a company which knew nothing of this proposed legislation before the publication took place on the 31st of May; as the representative of a company that was not invited to take part in the so-called conferences, notwithstanding the fact that its industry is so broad that it embraces the world, that I would like to be heard, and that it will probably take at least one hour or two hours to present this subject in all of its ramifications to your committee. It was my understanding that the committee would adjourn to-day at 12 or 1 o'clock, and in view of the fact that the opponents of this measure have had to come together quickly, and that they have had no time to organize, while on the other hand those who are proposing it have had conferences for more than one year, I propose, sir, that it would be meet and proper at this time to adjourn this conference until to-morrow morning, giving the opponents of the measure a chance to decide upon a plan of action for presenting this matter to your committee, and that we will come here to-morrow morning and present the various views of those who are interested. I therefore suggest the advisability of a postponement until to-morrow morning or an adjournment. The CHAIRMAN. Do I understand that all the opponents of the provisions of this law relative to talking-machine devices can be heard within one hour? Mr. CROMELIN. No, sir. I speak on behalf of myself, for my own industry only. There are others---- The CHAIRMAN. How many desire a hearing? Mr. CROMELIN. I believe that there are at least a half a dozen gentlemen who desire a hearing. The CHAIRMAN. Does each want one hour? Mr. CROMELIN. I do not know how long it will take them to present their views. The CHAIRMAN. We established a rule at the beginning of the hearings yesterday limiting the statements to ten minutes each. Mr. CROMELIN. I understood, Mr. Chairman, that that was in regard to the proponents of the measure. I did not understand that you intended to limit those persons whose interests are vitally affected by this measure to ten minutes to reply. I do not believe that is the intention of this committee; and I submit the question to the honorable chairman. Mr. CHANEY. Mr. Chairman, it is entirely out of all reason to expect us to remember what these gentlemen will say. We will want a good deal of it in typewriting anyhow; and they can simply give a synopsis of an argument here as to what they want to do, and we must expect them to submit to the committee in writing for our use such matters as they seem to think important for our consideration when we are giving the bill consideration. They do not need so long a time to make a speech here. Let them prepare their matter and hand it in. Mr. CROMELIN. Mr. Chairman, we hope to file briefs in addition to the oral statements. Mr. CURRIER. As far as the House committee is concerned there is no expectation that there will be a report of this bill at this session of the Congress. Mr. CROMELIN. Will the gentleman be good enough to state that positively on behalf of the committee, so that the interests that ought to be represented here to-day, and whose representatives must remain away, can be satisfied on that point? Mr. CURRIER. I can state it most positively, as far as the House is concerned. Mr. CROMELIN. I thank you very much. The CHAIRMAN. And the same is true so far as the Senate is concerned. Mr. CROMELIN. I thank you very much. We have endeavored to get that information from the Librarian, and he stated yesterday that it was highly improbable, but he could not state---- Mr. PUTNAM. Mr. Cromelin, if you will excuse me, I said that I had no right to give any such prophecy on the part of the committee; it was not within my control. You will do me the justice to say, Mr. Cromelin, that I added that when the copyright office asked for this bill to be introduced it had no expectation itself of any possibility of its being reported at this session. Mr. CROMELIN. Thank you very much for the information I have gotten from the Librarian and from the chairmen of the respective committees. That assures us on the point, for the first time, that this bill will not be reported at this session of Congress. (After a consultation between the members of the committees:) The CHAIRMAN. The committee has decided that it will hear some representative of all these interests, if they shall so desire, not exceeding an hour, with the same permission to supply in writing such matter as they may desire, as was given to Mr. Walker. I might add that it seems to us that the representatives of these interests can state concisely in that time their objections to the bill as introduced in the Senate and House, leaving the details to be supplied in writing, as I have suggested. It does not seem necessary to us, unless it is desired by these representatives, to have each gentleman representing each manufactory make a speech to this committee. We think that it will be giving you all a fair opportunity to be heard to comply with the suggestion that has been made. Mr. WEBB. The interests are about the same. The CHAIRMAN. The interests are precisely the same, as I understand it, so that the objections must be along the same line. Mr. CROMELIN. Mr. Chairman, may I merely state that as regards sound records as understood by a phonograph record, a graphophone record, or a telegraphonic record, the interests may not be the same. We are standing together against the whole measure; but it must be fully understood that in so far as relates to the reproduction of sounds previously produced, there may be a distinction between a sound-producing machine and a sound-reproducing machine. The CHAIRMAN. We think that those distinctions can be very well brought out in your written communications to the committee. Mr. JOHN J. O'CONNELL. Mr. Chairman, perhaps if the suggestion of Mr. Cromelin were complied with--that is, that a recess be taken until to-morrow morning at 10 o'clock--the various interests covering the music rolls and the phonographic records could get together and decide how to present their views to this committee, and in that way save time; and afterwards each could enlarge in his written brief on the points which he wishes to make. Mr. CHANEY. That is so as to that particular thing, but if there is someone who wishes to be heard on some other point, why not hear him now? The CHAIRMAN. We will postpone this question until to-morrow morning, and we will hope to finish that branch of the case, as well as the argument of Mr. Walker, to-morrow morning from 10 until 12. Mr. O'CONNELL. As I stated to the chairman, the only thing in which my clients are interested is the music rolls, and that is the only question I personally wish to present to this committee. Perhaps the same question may be embraced in the points to be raised by the phonographic record people as well. The CHAIRMAN. And I will say to you and the other gentlemen who are interested that you can divide that hour between yourselves as you may please, or you can select some representative to take the entire hour. Mr. CURRIER. Mr. Remich, of New Hampshire, is here, and wishes to be heard briefly on another section of the bill. STATEMENT OF DANIEL O. REMICH, ESQ., OF LITTLETON, N.H. Mr. REMICH. Mr. Chairman, I appear here to-day in behalf of the stereoscopic view manufacturers of the country. There are at least twelve large manufacturers of this description of views. There may be some that are not familiar with that class of view; it is the double view that you look at through the stereoscope. The firm to which I belong is the founder of this business, D. W. Kilburn & Co., of Littleton, N.H., in the White Mountains. There are, as I say, now twelve large concerns, which are competitors. I appear here in behalf of the stereoscopic view manufacturers, who approve of this bill, except one provision, and that is the provision as to the copyright fee. Mr. CURRIER. What section is that, Mr. Remich? Mr. REMICH. That is section 60. You will notice that under the old law the fee for copyrighting was 50 cents. The fee is now made a dollar, which advances that expense upon our industry 100 per cent. Inasmuch as the report of the office shows that there is a good handsome surplus of cash received, more than enough to pay for all the expense of maintaining the Copyright Office, and in addition to that some 213,000 objects, which the Librarian says are of great value to the Nation--books, paintings, etc.--and in view of the small profit in the manufacture of our goods, and the fact that in the conduct of our business we have to make long-term contracts with general agents who handle our goods, selling them over the entire world, and that our contracts have been made for a long term of years, this 100 per cent advance upon our class of goods would practically put us out of business. Mr. CHANEY. Suppose we except those views? Mr. REMICH. I have no objection to that. You will see that they have tried to modify this provision somewhat by a section at the bottom of the twenty-fifth page of the conference report, in which they say---- Mr. CURRIER. The thirty-eighth page of the bill, gentlemen. Mr. REMICH. The thirty-eighth page of the bill, in which they say: _Provided further_, That only one registration at one fee shall be required in the case of several volumes of the same book or periodical deposited at the same time, or of a numbered series of any work specified in subsections H, J, K, and L of section 5 of this act-- Which includes our class of products-- where such series represents the same subject with variances only in pose or composition, and the items composing it are deposited at the same time under one title with a view to a single registration. As a lawyer, I suggest that would inject a dangerous element into our business, if we tried to copyright a series of pictures which we claimed only differed from each other in pose, and we should have more litigation on our hands in a month than you could shake a stick at. It would ruin any stereoscopic view concern in a little while. As I suggested in our conference, that clause would apply satisfactorily to gallery work where a man, for instance, took my distinguished friend, the Representative from my district, Mr. Currier, in a gallery, and took a side view, a front view, a view standing up, a view sitting down, a view with his chin turned up, and a view with his nose turned out. In such a case there would be no change save in pose. But we send artists all over the world. We had an artist in the Japanese army during this war, and with the Russian army, and in the South African war, and in Cuba, and in the Boxer war. Our negatives are largely snapshots of moving objects and things. We may get one distinguished general in one snapshot, the next negative we make will show another distinguished general. If we go to a great parade to make negatives, as we did at the Czar's coronation in Russia, we are liable to get more than 500 different negatives, and they all differ in something besides pose and composition. You will see that a clause of that kind will make it absolutely impossible for us to take advantage of it, although any gallery artist could take advantage of it with success and safety. The CHAIRMAN. Have you the form of an amendment which you propose? Mr. REMICH. No. I have not framed any amendment. An exemption of the stereoscopic manufacturers from the $1 fee would be perfectly satisfactory to us. Mr. CURRIER. Not the exclusion of the entire fee? You do not mean that? Mr. REMICH. Not at all; we are perfectly willing to pay our 50-cent fee, although it amounts to a tremendous sum in our business, because we take so many negatives. To show the extent of our business, permit me to say that we have over 17,000 different subjects in stock ready for delivery. We have over 160,000 different negatives at the present time, and are importing them constantly and making them in this country. The CHAIRMAN. The reason I asked the question was because the language here indicates that the exception you propose should be inserted with much care. Mr. REMICH. Yes. The CHAIRMAN. And I will be glad if you will draw your proposed amendment and insert it in the record. Mr. REMICH. It seems to me it is going to be a difficult thing to make an exception. What is the necessity of an advance in the fee? Why is there any necessity for a change of the fee when in England, as I understand it, they charge only a shilling for doing this work, which is one-half of what we pay, and when, in point of fact, we are getting a handsome surplus--as the report of the copyright office shows, over $130,000 profit in the last six years? The office is not intended as a revenue producer. It is simply designed to protect the manufacturing interests of the country by copyright. Of course to the man who is producing a painting or a valuable book which he may sell and obtain in royalties $50,000 on, it does not make any difference. Some men have told me they do not care; they wish the copyright fee could be $75, because larger fees for copyrighting would tend to keep out a lot of fellows. But we have a great big industry which is employing a large number of people which would be ruined by these additional charges. The CHAIRMAN. Your suggestion, then, is to reduce the fee prescribed in section 60 from $1 to 50 cents? Mr. REMICH. Yes; leave it exactly as it is now; yes, sir. The CHAIRMAN. Were you present at the hearing yesterday? Mr. REMICH. I was not present; no. The CHAIRMAN. Mr. Putnam commented upon the situation, stating that the fee under existing law was 50 cents, and the fee for certification was 50 cents, and the only difference between the existing law and this bill upon that subject is that in all cases a certificate is to be issued, making the entire fee $1. Mr. REMICH. You can see the effect of that. In my experience in connection with the view business, for twenty years, we have had occasion to get but five certificates. Think of that. We have paid $2.50 in the whole time, whereas under this bill we shall be compelled to take a certificate at an expense of half a dollar with every negative that we copyright, whether we want it or not. Mr. CHANEY. How many times have you gotten certificates now? Mr. REMICH. I say, that in all my experience with the view business--and I have been connected with it ever since I married Mr. Kilbourn's daughter and went into the firm in 1890, sixteen years ago--we have had only five certificates. Mr. CHANEY. What is the object of your having those certificates? Mr. REMICH. We took them simply because we had a few views pirated, and in the litigation we wanted to show the fact that they were legally copyrighted by a certificate from the office. But this law is going to compel us to take out thousands of certificates that will be of no earthly use to us. This extra expense will practically drive us out of business. This is no "pipe dream," but an absolute fact. Senator MALLORY. You do not object to the 50 cents for the fee and 50 cents more for the certificate? Mr. REMICH. Not at all; only we do not want to be compelled to pay half a dollar each for thousands and thousands of certificates that are of no earthly use to us. Mr. CHANEY. I take it that the purpose of this law is to provide a notice in some form or other for everything, and this is in that nature. Mr. CURRIER. No; this is not in the nature of a notice. This certificate gives no notice to the public. Mr. REMICH. They would have to come here and dig out the records if they wanted to find out about that. The only argument that I have heard in favor of this suggestion is that it will diminish the amount of work that will have to be done in the copyright office. If they can make one certificate cover twenty views or twenty-five views or a hundred views, they will not have to make so many certificates. Is there any good reason why my business should be ruined to accomplish such a result when there are plenty of people that want to work in the office and when the present revenues are amply sufficient to pay for all the work done? In my town we are exempting property from taxation and offering big financial inducements to bring manufacturing interests into our town, because they are going to employ more labor. I do not suppose Washington has reached the point where it has so much population that it does not want more men and women employed in Washington, performing honest day labor and earning good money to be expended in the city. Senator MALLORY. What is the reason assigned for uniting these two fees in one; do you know? Mr. REMICH. I was not here, and I did not hear the reasons. Senator MALLORY. I was not here, either, so I do not know. Mr. PUTNAM. For the benefit of the Senator I might explain that the idea was this, Senator: That the office will hereafter furnish the certificate in all cases as a matter of course, which heretofore has been furnished only when requested; and that in furnishing it it should charge for it as heretofore, making the charge therefor $1. Senator MALLORY. Still, the certificate is not necessary except where it is desired to prove the fact that the copyright has been secured. Mr. PUTNAM. It was with the idea that it was a precaution that the copyright proprietor ought in reason to take. Senator MALLORY. I have no doubt that there are many persons situated as this gentleman is who do not want any certificate except in very rare cases. Mr. REMICH. That is right. The CHAIRMAN. To what extent do you now issue certificates? Mr. PUTNAM. Mr. Register, to what extent is that done? Mr. SOLBERG. For last year the total of registrations numbered 116,000, and of those 28,087 were certificates. Mr. REMICH. That is about one-fifth. Mr. SOLBERG. It should be remembered that requests for certificates additional to the certificate paid for at the time of registration are constant, and in addition to fees submitted to secure certificates, constant inquiry is made of the Copyright Office and answered at some service cost as to what entries have been made by particular firms. They ask us "just what entries did we make in May last?" The CHAIRMAN. What were the gross receipts of the Copyright Office for the last fiscal year? Mr. SOLBERG. The receipts--this is for the calendar year, Senator, those being the latest figures which I have. The CHAIRMAN. Very well. Mr. SOLBERG. The fees for the total calendar year were $78,518, of which the certificate fees were $14,043. The CHAIRMAN. What are the expenses of the office? Mr. SOLBERG. The total expenses of the office can not be given. The comparison given here is between the appropriations for service only, and I could give you that for the year. Mr. PUTNAM. That is for the fiscal year. In this case we have had to take the last fiscal year, with your permission. The CHAIRMAN. Yes, sir. Mr. SOLBERG. The fees for the fiscal year ending June 30, 1905, were $78,058. The appropriations for service during the same period were $74,662.46--the appropriation expended for service, but the only element covered is service cost. It does not cover printing, stationery, or any supplies, nor the printing of the catalogue of entries, which include all registrations made at any fee, even if no certificate is paid for. That is estimated at $25,000 per year--the printer's estimate for printing. If that is included with all other expenses, the fees do not cover the total expenses of running the office. Mr. CHANEY. By how much? Mr. SOLBERG. I have not been able to ascertain the exact figures for printing, but I should suppose that the balance might be some thousands of dollars against the office. The CHAIRMAN. You have some figures, Mr. Remich; you made some statement earlier in your remarks upon that subject. Mr. REMICH. Yes, sir. I took this leaf from the report, and I will read it. This is the last year's report of the office: The earned fees paid into the Treasury for the year ($78,518) exceeded the amount expended for salaries, which was $74,600.37. The additional expenditures during the year for stationery and other supplies can not at this date be obtained from the chief clerk of the Library, but for the first six months of the year they amounted to but $309.63, and the year's contingent expenditures, therefore, should be under $1,000. The yearly average for the last five years has been $954.29. Then they say: The appropriations for 1901, 1902, 1903, 1904, 1905, and the first half of the fiscal year 1906 include the sum of $25,740, to be used in bringing up the arrears of work prior to July 1, 1897, which amount should therefore be deducted from the total sum for appropriations for service as not properly a charge upon the current work of the office, leaving the excess of fees earned over appropriations used for service $125,675.39 for the eight and one-half years. The copyright fees are not, however, the most valuable assets of the office. During the year the articles deposited and credited numbered 213,498 articles. This large deposit of books, periodicals, maps, music, engravings, photographs, etc., includes many articles of considerable value which the Library of Congress would otherwise be required to purchase, and these articles therefore represent an annual acquisition of property to the value of many thousands of dollars. Mr. CHANEY. But they do not produce any money. Mr. REMICH. They do not produce any money--that is so; but they save you making an appropriation. This saves the Appropriations Committees of both House and Senate from appropriating money each year to buy these things that you would otherwise have to buy to place upon the shelves of the Library. Now, I want to do my share, and I want my business to do its share, toward supporting this Government. But I do not think, in view of this report, that there is any good reason why this great, rich Government should place this increased burden upon our industry. Mr. CHANEY. Do you not argue unfairly when you undertake to bring in the Library as against the proposition? Mr. REMICH. I am not trying to bring in the Library as against the proposition. Every author has to file two copies of his book, and they are placed in the Library. I say that if they did not do that, Mr. Putnam, the Librarian, would have to take money out of his appropriation and buy these books. I should suppose that that would be so. Otherwise he would not say that they were of great value. I am willing, if they want to make a certificate of every view we have and send to us, for any convenience of the office, to take them; but to force us to pay for thousands and thousands of certificates, which will make it impossible for us to make a profit in the manufacture of our goods at the close margin under which the business is conducted under our contracts, would be a hardship, and I do not believe you want to drive us out of business in that way. Mr. CHANEY. We certainly do not want to drive you out of business. Mr. REMICH. It seems to me that it would have that effect. Mr. CHANEY. But I take it that the Librarian's purpose was to try to make this thing pay its way. Mr. REMICH. I have no doubt about that. Mr. Putnam and Mr. Solberg have told me that by this consolidation of subjects many certificates could be saved. I should be glad to comply with their suggestion if our business was of such a character that we could do this series work; but you can see the difficulties. Mr. PUTNAM. We want to be as clear as possible, and to meet this difficulty. Let me ask you this: Do you not do any series work, or is it only that you do not do work in a series under this limitation as to pose or composition? Mr. REMICH. We do not do that class of work. Mr. PUTNAM. If the words "only in pose or composition" were stricken out, would there be a material reduction in your fees? In the first place, it seems to me that it would be convenient for us to know--how many copyright entries do you make in the course of a year? Mr. REMICH. I can not tell. Mr. PUTNAM. Have you any idea? Mr. REMICH. It varies with different years. Mr. PUTNAM. Would it run up into thousands? Mr. REMICH. Some years I think it does. Mr. PUTNAM. If you were privileged to register under one fee works in a series---- Mr. REMICH. But what would be a "series?" That is the question. Mr. CURRIER. Representing the same subject. Mr. PUTNAM. Representing the same subject under the same title with only slight variances, but not the variances described here as "only in pose or composition." What we would like to know is, would it enable you to enter a great many of these articles under one fee that you now enter separately? Mr. REMICH. That depends upon what you call the same subject. Mr. CURRIER. Is seems to me that you would have to introduce the word "general;" that is, make it read "the same general subject." Mr. REMICH. If you introduce that who will decide what is the same general subject, except the courts? It would encourage law suits. The CHAIRMAN. It would be the Librarian, would it not? Mr. REMICH. His decision would not be final. The law says we can go to the courts and test his construction. The CHAIRMAN. It would be the Librarian, so far as your fees were concerned? Mr. REMICH. Yes; but we do not want to pay a fee unless it is to be registered in such a way that the court will hold that we have a legal registration. We have an artist in San Francisco; and if we could register under one entry all the views that he will take in San Francisco while he is there, which will probably be 500 different subjects, for half a dollar, we would like to do it. But what subjects that he takes in San Francisco can we include as a series and have protected? He will take the Pacific Hotel, showing its ruin and present condition, and he may take a Chinese camp, and he may take the Flood Building, and so on. How many can we get into a series and have the court protect us when we come to try a case? That is the difficulty. Suppose this said you shall enter under a series all churches in Paris--under one entry fee, for 50 cents--that we may enter all negatives that we take of churches there. How will you describe it in your entry upon the book? Suppose we go to Rome, where they have 365 Catholic churches; they are not grouped in any way; we can not pose them. How will you describe the 365 views? Will you describe them as 365 views of the churches of Rome, or will you specify them under one head? You can see the difficulties, gentlemen. Mr. PUTNAM. Do you not publish those in series for selling purposes sometimes? Mr. REMICH. No. In selling we do this: We have a pictorial illustration of the Holy Land. It includes perhaps fifty pictures, but it covers the whole of the Holy Land. One is taken in Jerusalem, one in Jaffa, and one at Damascus, for instance. We should be glad to comply with any law that will protect us and not inject doubts into our business and encourage piracy. Mr. CURRIER. Mr. Webb desires to know if this amendment would take care of your matter: "Insert after 'seal,' in line 6, page 37, the words 'provided only 50 cents shall be charged for each stereoscopic view filed and registered.'" Mr. REMICH. That is all right. And if we want a certificate in our business, we will come and, as the old lady said, "heave down our 50 cents and get it." Mr. PUTNAM. "_Provided_, That in the case of stereoscopic views the certificate should not be furnished unless required, and in that case the fee shall be," etc. Mr. CURRIER. And in such case no certificate shall be issued unless the regular fee is paid. Mr. REMICH. That is perfectly satisfactory; but any attempt to define by series is sure to be unsatisfactory. Mr. CURRIER. I think you may be right about this matter of series. STATEMENT OF A. BELL MALCOMSON, ESQ. Mr. MALCOMSON. I intend, Mr. Chairman, to be brief. The remarks that I shall make are pertinent more to correct the law so as to make it more definite than for any other purpose. I have prepared a short statement of just what the changes I propose are. The matter is one relating to lithographs. I represent Mr. McLaughlin, or McLaughlin Brothers, who are probably the largest lithographers in the country. Mr. McLaughlin has spent millions in perfecting that art in this country. He, unfortunately, is abroad at the present time, and has asked me to be here to represent him. Lithographs have always been mentioned in the former copyright bills. A lithograph is something different from any other production of a picture or of any pictorial illustration. But in this case it has been thought by the framers of the bill that the words "print or pictorial illustration" would cover lithographs. The CHAIRMAN. Please refer to the section of the bill that you wish to call attention to. Mr. MALCOMSON. I am referring to page 4, line 4. Mr. CHANEY. "Prints and pictorial illustrations?" Mr. MALCOMSON. Yes. The word "lithograph" is not mentioned in the subjects of copyright. It has always heretofore been mentioned. The suggestion that I find in the little memorandum that was attached in relation to the bill is: "It is assumed, however, that these will be included under the more general terms as prints and pictorial illustrations;" that is, that lithographs, it is presumed by the framers of this bill, will be included under that term. Lithographs, as I say, are something entirely different from any other production, and I do not think--and I hope the committee will agree with me--that they are entirely and specifically included. Lithographs are not included under that term. Senator MALLORY. How about engravings? Mr. MALCOMSON. Engravings are prints. The lithographic process is something different from the mere printing from an engraving. The lithographic process is a very peculiar and a very interesting one. It would take too long for me to go into it and describe it, but it is entirely different from printing. The use of the colors, the manner in which the ink or the color is transferred from the stone to the paper, is not the mere act of printing. The color, I will say in brief, is held there by, as it were, grease. Grease forms a material component in the practicing of the lithographic process. The matter of lithographs has always been mentioned. The subject of lithographing has always been mentioned in previous bills, and not only that, but in this bill the lithographic process is specifically mentioned, and I shall come to that next. But the suggestion now is that there is a sufficient difference between lithographs and all other prints and pictorial illustrations to warrant the word "lithographs" being inserted there. Mr. CURRIER. Then you would insert, after the word "prints," in line 4, on page 4, the word "lithographs?" Mr. MALCOMSON. Yes, sir. That is my proposition. I do that because particularly in a late decision of great importance, made by the circuit court of appeals in our second circuit, they have used this language---- The CHAIRMAN. That is the decision that has already been put in the record? Mr. MALCOMSON. I think it has. It has been handed in to the committee. A printed copy of it has been loaned to me, and I will read an extract from it to show the pertinency of my remarks about interpolating this word "lithograph:" But in view of the fact that the law of copyright is a creature of statute and is not declaratory of the common law, and that it confers distinctive and limited rights which did not exist at the common law, we are constrained to hold that it must be strictly construed, and that we are not at liberty to extend its provisions, either by resort to equitable considerations or to a strained interpretation of the terms of the statute. I think that I am warranted, in view of that late decision, in asking the committee to interpolate that word "lithograph." The CHAIRMAN. What do you say to that suggestion, Mr. Putnam and Mr. Solberg? Mr. PUTNAM. I prefer that a suggestion as to phraseology in a section that has been so very carefully considered by our general legal advisers, these two committees of the bar association, should be submitted to them for their opinion as to its necessity and effect; and I think it would not be helpful to the committee to have me give an offhand opinion upon it. Mr. CHANEY. I do not think there is much doubt that that lithographic process would not be included in merely a pictorial illustration. Mr. MALCOMSON. Or in a print. Mr. CHANEY. Or in a print, either. Mr. MALCOMSON. It might possibly be in a print; but a print might be construed by the courts to be something in which type and ink, or a plate and ink, is used. The CHAIRMAN. Was this matter taken up at the conferences? Mr. MALCOMSON. I do not know. I was not present when it was specifically discussed. I was present at one of the conferences, but not when this was specifically discussed. I have always urged upon the Copyright Office, with whom I have colabored in this matter, that it should be included. And I am now here to stand up for it. I shall ask leave to be heard again on this, in view of the fact that Mr. Putnam states that he wishes to discuss it with the parties who drew the bill. I ask to be heard again at some subsequent hearing. I pass on now to page 8, and the next suggestion that I have to make is in line 21 on that page. We know from what I have said, or we have an idea of what a lithographic process is. In this section, which is on page 8, is the restriction in relation to the printing of books or of lithographs, which are copyrighted in this country, in a foreign country and importing them here. That applies to this case. In Germany they can do this kind of work and beat us out of our boots. We can not compete with them at all in that line of work. To such an extent is that so that to-day the pictures of our Capitol, the pictures of all prominent buildings in our cities, are printed on postcards, and you will find on these cards a little statement, if you look at it, "Made in Germany." That is so throughout our cities. They are not copyrighted, of course. If they were copyrighted they would have a protection which they do not now have; but that is the fact. In this section 13, on page 8, to which I am referring, there is a provision that where the book is copyrighted the type shall be set up in the United States and the book shall be printed in the United States. I will read section 13, so that we can comprehend it [reading]: SEC. 13. That of a printed book or periodical the text of the copies deposited under section 11, above, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made from type set within the limits of the United States; or if the text be produced by lithographic process, then by a process wholly performed within the limits of the United States; which requirements shall extend also to the illustrations produced by lithographic process within a printed book consisting of text and illustrations, and also to separate lithographs---- Now follows the matter that I am objecting to: "Except where in either case"--that is, in the case of the book being produced by lithographic process, or in the case of a separate illustration being in the book--"except where in either case the subjects represented are located in a foreign country." Now, the lithographic process is not one in which a man goes and sets himself down in front of a mountain and works his process and takes his color scheme from the mountain, or one in which he goes in front of a building in a foreign city and sets up his lithographic process and conducts it there, at all. Why that exception? What is the meaning of it? I have had no explanation of it. I can not get any. It is said, "Well, the picture may represent a building in a foreign country or foreign scenery." Not at all. There is no necessity for that exception in those cases. If a foreign scene is to be reproduced by a lithographic process, a photograph is taken of it in the foreign country, or a sketch is taken of it in the foreign country. The color scheme is then developed by the artist, possibly there, but no part of the lithographic process is necessary to be conducted in the foreign country at all. It is brought over here, and in the factory, in the print works in Brooklyn or Detroit or some other part of the United States, the lithographic process is then practiced. Mr. CHANEY. What effect does this section have? Mr. MALCOMSON. It would have the effect of throwing into the hands of the German lithographer all lithographic work in relation to pictures or paintings which related to any foreign city or foreign landscape. That is what the result of that exception would be. Every foreign landscape, every foreign building that is depicted by a lithograph under that section is outside of the restrictions of this section 13. That is what that means. You can not reason it out any other way; and that is the reason we except to it. We say we are properly protected by section 13, and that that exception should come out. Mr. CHANEY. As you explain it, I think it ought to. Mr. CAMPBELL. Just what do you want to strike out? Mr. MALCOMSON. I want to strike out those words that I have read. If the committee will be kind enough to mark the words, I will read them, on line 21, page 8: "Except where, in either case, the subjects represented are located in a foreign country." That ought to come out, for two reasons. It is ambiguous---- Mr. CURRIER. It would not occur to me that it is ambiguous. Mr. MALCOMSON. Well, it is pretty straight, I think, in one way. The CHAIRMAN. Where is your next point? Mr. MALCOMSON. The next one, if the committee please, is on page 14, line 15. That is exactly to the same import as the one on page 4, because it inserts the word "lithograph" after the work "print," you will see. Mr. CURRIER. You think it should be inserted there after the word "print," again? Mr. MALCOMSON. Yes. The same argument that I made before will apply to that. Mr. CURRIER. If it needs to be in the other place, it should be put in here, also. Mr. MALCOMSON. That is all that I have to offer. I am exceedingly obliged to you for your attention. Mr. CAMPBELL. Just a moment. I understood your objection on that page 4 and this last one is that the word "print" does not cover a lithograph? Mr. MALCOMSON. My objection is that it is a question--that it would leave a question for the courts; and in so far as it is really meant to be there, and we have had a decision of one of our highest courts of appeal, unless they get a writ of error and go to the Supreme Court of the United States, using the language that I have just read to you in relation to this copyright law, that it is a statutory law, and that it must be construed strictly--with those facts before me, I urge upon the committee that we do not leave that question open. Mr. CAMPBELL. What I wanted to inquire was just this: Do you not understand that the word "print" in its ordinary significance and meaning in the dictionary covers the lithograph? Mr. MALCOMSON. I understand that a "lithographic print" is a proper term; but I understand that that word "print" might be construed as not broad enough to cover a lithographic print. There are prints from engravings. They are prints; and in the old law, we have the word "cut." "Cut" and "print" are substantially the same, and there is a decision, which I have not gone into, because I do not want to take up any more time than I can help---- Mr. CURRIER. I see no objection to inserting the word "lithographs," if there is any doubt about it at all. Mr. CAMPBELL. What I want is information as to whether or not, in his experience, it is not already covered by the word "print." Under the ordinary definition in the dictionary, it seems to be perfectly covered. Mr. CHANEY. That decision that he referred to a while ago leaves it somewhat in doubt. Mr. MALCOMSON. I wrote a 15-page brief once on that part of the statute which related to "cuts" and "print" and discussed the subject most thoroughly; and it made me feel that we ought to have the word "lithograph" in there. Mr. PUTNAM. Can you tell us whether in case the word "lithograph" is put in there, it might be necessary to put in the words "etching" and "engraving?" Mr. MALCOMSON. No. Mr. PUTNAM. You make an entire distinction, as I understand it? Mr. MALCOMSON. Yes; an etching and an engraving would come under a pictorial illustration, without any question. An etching is a pictorial illustration of a subject, certainly, and an engraving is a pictorial illustration of a subject; but a lithograph, when the word is used subsequently in the law, it seems to me should have a place in the section which provides protection for certain subjects. Mr. CAMPBELL. I find here that in the dictionary, under the noun "print," is this definition: 1. An impression with ink from type, plates, etc.; printed characters collectively; printed matter; as, small print; the print is illegible. 2. Anything printed from an engraved plate or lithographic stone---- Mr. MALCOMSON. I agree with you that the courts might hold that that was sufficient to cover it--that the word "print" would cover a lithograph, and I should contend so before the court; but it is this late decision which leads me to feel that, in so much as it is not going to do any harm, why should we leave it out? Why should we leave it out? The CHAIRMAN. Are there any other gentlemen to be heard now? Mr. PUTNAM. Mr. A. Beverly Smith, speaking for the Reproductive Arts Copyright League, and particularly for certain groups of lithographers, simply desired me to say that he thinks also that the word "lithographs" should go in, but that it should go in in a separate subsection, and should be coupled with the word "posters." On the other hand, I ought, to complete the record of this day, to call your committee's attention to a communication from Mr. Ansley Wilcox, which has been presented to the committee. He was here in behalf of an establishment that gets out lithographs, and particularly posters, and he was at the conference particularly concerned about the protection of that material. He writes, and his letter has already gone down to be put in the record, or I should read it; but substantially this, that he considers the specifications of those subsections as very liberal and fully covering all that he is interested in. This is simply for your information. Mr. A. BEVERLY SMITH. May I correct the statement of the Librarian, Mr. Chairman? I do not think it is necessary that the word "lithographs" should go in there. Mr. PUTNAM. I beg pardon, then. I thought you did. Mr. A. BEVERLY SMITH. I agree with the statement made to you by the Librarian regarding consultation with your legal advisers as to whether or not it should be put in. If you decide to put it in, I think it would be much wiser not to couple it with prints and pictorial illustrations at all, but to make a separate classification. And if you do decide, after consultation, to put lithographs in, I think that that will also require the word "posters" to be put in. I personally do not believe that either one is necessary to be defined separately. (Thereupon the committee adjourned until to-morrow, Friday, June 8, 1906, at 10 o'clock, a.m.) COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, _Friday, June, 8, 1906_. The committee met at 10 o'clock a.m., conjointly with the Senate Committee on Patents. Present: Senators Kittredge (chairman), Smoot, and Latimer; Representatives Currier, Campbell, Chaney, McGavin, Webb, and Southall. Mr. CURRIER. Mr. Solberg, yesterday, when Mr. Cutter was testifying, I asked him this question: "Can you import two copies of an unauthorized edition?" He said, "Yes, sir." I asked, "Can you do that to-day?" He answered, "Yes, sir; we can now." I asked, then, "A fraudulent reprint, for instance?" "Yes, sir." "There is absolutely no restriction, as you understand it, to-day?" "There is no restriction at all, as I understand it, to-day." I would like to ask you if you understand the practice to be as Mr. Cutter states? Mr. SOLBERG. The prohibition of importation was introduced into the copyright law by the act of March 3, 1891, and it was a prohibition of importation additional or extra to that which is supposed to have existed in copyright law against any unauthorized copies. The law as it stood prior to that provided that these unauthorized copies could only be permitted importation upon the consent of the copyright proprietor. That is, the author himself or the copyright proprietor could import even a fraudulent copy. Mr. CURRIER. That was prior to 1891? Mr. SOLBERG. Yes. But in the act of March 3, 1891, it is stated, in connection with the typesetting clause, that copies of books not printed from type set within the limits of the United States or from plates made therefrom shall not be imported: and then certain exceptions are introduced, and one is an exception directly on behalf of the individual buyer. The other exceptions are on behalf of libraries, which consist in paragraphs of the free list of the tariff act taken over into the copyright law. It is therefore a matter of interpretation of the law what the interpolation of these exceptions means. Now, I can not authoritatively give that interpretation. Mr. CURRIER. I would like your understanding of the practice since the law of 1891. Mr. SOLBERG. Perhaps the best light I can throw on that is the statement that there is an opinion from the Department of Justice, the Attorney-General, that the exceptions would not bar an unauthorized copy. Mr. CURRIER. Then you understand that Mr. Cutter is right in what he says? Mr. SOLBERG. I would understand it so far as that decision or opinion would be supported and would be taken as final. Mr. CURRIER. Is there any opinion in conflict with that? Mr. SOLBERG. There are a number of opinions, none directly in conflict; none directly upsetting that. Mr. CURRIER. Do you know what the practice of the Treasury Department is now? Mr. SOLBERG. No; I am not competent, I think, to say; but Mr. Montgomery could answer that question if he is here, because it comes under the collector of customs. Mr. CURRIER. If there is any gentleman present who has information on that subject and can answer that question we would be glad to hear from him. Mr. PUTNAM. Mr. Montgomery was here yesterday; I think he will be here a little later. I think it might be helpful, if you will permit me to suggest, Mr. Chairman, as pertinent (it goes beyond your question, but is relevant in connection with it), as to whether such importation is, according to the register's information of foreign legislation, customary abroad--such privilege of importation of an unauthorized foreign edition of a book printed in the foreign country under domestic law there? Mr. CURRIER. My purpose in seeking this information is to establish the fact, if it be a fact, where you provide that the importation must be an authorized edition, whether that is a change in law or not, a change in practice, whether it is an additional restriction. That is what I was trying to get at. I have asked a number of times whether subdivision E, at the top of page 16, "To any book published abroad with the authorization of the author or copyright proprietor," etc., changes existing law and is an additional restriction upon importation; that is all. Mr. SOLBERG. You see, the question is difficult of answering categorically, Mr. Chairman, because it is a question of the interpretation of a complex statute. Senator SMOOT. From the present interpretation of the law there is not any doubt in the world, then, but what this is a restriction? Mr. SOLBERG. I should say that this act attempts to make clear that all fraudulent copies are barred. Senator SMOOT. That is a restriction, then? Mr. SOLBERG. As a protection of the copyright. (The following communication from the register of copyrights is printed in connection with his above remarks by direction of the chairman:) LIBRARY OF CONGRESS, COPYRIGHT OFFICE, _Washington, D.C., June 15, 1906_. DEAR SIR: I ask to be allowed to file for the printed report of the hearing on the copyright bill the following, in addition to my answers to the questions you asked me on Friday, June 8, in relation to the importation of copies of unauthorized editions of American books: 1. It is fundamental to the protection of copyright that all unauthorized reprints of copyrighted books shall be prohibited importation into the country of origin. It is therefore provided in all foreign copyright legislation that such unauthorized copies shall be prohibited importation. Such copies are treated as fraudulent copies, and I know of no provisions in any foreign legislation which permit importation of unauthorized copies either by individuals, educational or other institutions, or libraries. In the copyright legislation of the United States prior to 1891, the provisions prohibiting importation dealt only with unauthorized copies and these were prohibited importation, except with the direct consent in writing of the author or copyright proprietor. 2. The act of March 3, 1891, introduced an additional prohibition of importation, namely, of copies of authorized editions of foreign copyrighted books, or of authorized foreign reprints of American copyright books, unless printed from type set within the limits of the United States or from plates made therefrom. To this prohibition of importation certain exceptions were enacted in favor of private book buyers, educational institutions, and libraries; and some paragraphs of the free list of the act of October 1, 1890 (permitting importation without the payment of duty) were taken over into the copyright law to insure that the articles named in these paragraphs should be included in the exceptions to the prohibition of importation of copies of authorized editions of books. It was not supposed that Congress intended that these exceptions to the prohibition of importation should apply to unauthorized editions, but upon the matter being submitted to the Department of Justice an opinion was filed by the Solicitor-General ruling that the exceptions did extend to unauthorized reproductions of American books. (See Opinion of Holmes Conrad, April 19, 1895; Synopsis of Treasury Decisions for 1895, pp. 495-498.) 3. In the provisions of the new bill dealing with importation a careful distinction has been maintained between unauthorized (fraudulent) copies and copies of authorized editions not printed from type set within the limits of the United States. In the case of all unauthorized reprints of books the prohibition of importation is absolute, and any such copies introduced into the United States are subject to seizure, forfeiture, and destruction. (See sections 26 to 29 of the bill.) In the case of copies of authorized editions not set in the United States, such copies if imported are seized and exported, but not destroyed. (See copyright bill, sec. 31.) All exceptions, therefore, to the prohibition of importation of authorized editions in the bill concern only authorized copies, and there is no permission in favor of any one to import any unauthorized, pirated copies. Very respectfully, yours, THORVALD SOLBERG, _Register of Copyrights_. Hon. FRANK D. CURRIER, _Chairman House Committee on Patents, House of Representatives_. The CHAIRMAN. It seems that a Mr. Davis, who represents some manufacturers of musical devices, does not understand that he is to have any part of the hour assigned to the gentlemen mentioned yesterday. Is Mr. Davis here? Mr. PUTNAM. I think Mr. Davis has not yet come in. With your permission, Mr. Chairman, I will state as to the letter of Mr. Wilcox, to which I referred yesterday in connection with the suggestion from Mr. Malcomson as to the need of including lithographs in the specification of subject-matter, that the passage which I should have read if I had had the letter here (it was with the stenographer) was this: I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing, so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it. * * * As affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me, and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened. The copyright office has received a communication from Mr. Fritz von Briesen, requesting that in section 5, after line 7, a further subdivision, "Miscellaneous," be inserted, and that the following be added: _And provided furthermore_, That a series of maps, drawings, photographs, prints, and pictorial illustrations, and labels and prints relating to articles of manufacture, and other subjects of copyright of an artistic nature, constituting a unit or assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, should the applicant so elect, whether or not they are actually joined by binding, printing on the same sheet of material, or otherwise. I suggest this, Mr. Chairman, as appropriate to be inserted in connection with the discussion of the fees yesterday by Mr. Remicher. It bears on that point. The CHAIRMAN. That will go in the record. Mr. PUTNAM. I handed in, I believe, yesterday, a statement in writing from Mr. A. W. Elson, of Boston, making certain specific recommendations for changes. He telegraphs me, "Written presentation sent you fully covers my view." That is in answer to an inquiry as to whether he wished to have a hearing before the committee. I have received a communication from the International Brotherhood of Bookbinders, as follows: As president of Local No. 4, of Bookbinders' Union, of this city, and representative of the International Brotherhood of Bookbinders of the United States, I would be pleased to be heard on the Currier copyright bill to-morrow, immediately after Mr. J. J. Sullivan has spoken on bill. I will not consume more than ten minutes, and possibly less than that. I will be in attendance at the hearing. Very respectfully, J. L. FEENEY. The office has received, since the bill was introduced, from the Music Publishers' Association, certain proposed amendments, additional provisions in connection with the protection of the copyright on musical compositions. These, I should advise the chairman, have not been communicated to the gentlemen who are to speak in opposition to any of those provisions. They have not had them, therefore, before them in preparing their case this morning at all; and while I have manifolded copies here which are at their disposal, it is to be understood that these were not communicated to them. On the other hand, Mr. Serven, who in behalf of the music publishers handed these to me, states (if I am not correct, Mr. Serven, you will correct me) that these contain additional specifications but in the same general direction. That is all. Mr. A. R. SERVEN. That is correct, Mr. Librarian, and simply to conform subsection G of section 1 to comply with the recent decision of the United States circuit court of appeals in the White-Smith _v._ Apollo Company case. The same idea is represented simply. The case was decided, of course, since the bill was printed. The CHAIRMAN. Mr. Putnam, just call our attention to the proposed change. Mr. PUTNAM. This is contained in a written communication, and it will really take less time to read it from the communication. The CHAIRMAN. Yes. Mr. PUTNAM. (Reading:) Section 1, subsection G, should be amended to read as follows: "To make, sell, distribute, or let for hire any device, contrivance, or appliance adapted in any manner whatsoever when used in connection with any mechanism to reproduce to the ear or to cause the said mechanism to reproduce to the ear the sounds forming or identifying the whole or any material part of any work copyrighted after this act shall have gone into effect, or by means of any such device, contrivance, appliance, or mechanism publicly to reproduce to the ear the whole or any material part of such work." Omitting the explanations, the next amendment will be as follows: Section 3 should be amended to read as follows: "That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting, and the devices, appliances, or contrivances mentioned in section 1, subdivision (_g_) of this act, but without extending the duration of such copyright." Section 23, subdivision (_b_)---- The CHAIRMAN. I suppose the other amendments are simply to follow if the first amendment is approved? Mr. PUTNAM. If the first amendment is approved; that is my understanding. Mr. SERVEN. Mr. Chairman, that is true with the exception of one amendment. The Musical Publishers' Association suggests that the same right of appeal and review in interlocutory judgments and orders should be provided for in the new bill as is provided for in the existing law. That is the only thing that is different. Mr. HORACE PETTIT. Mr. Chairman, may I ask Mr. Serven whether he will add to his amended section 3 the clause which I suggested in my amendment to the original section 3? It would accomplish the same purpose as I had intended. My suggestion of amendment would also apply to your amended section 3, which adds: _And provided_, That no devices, contrivances, or appliances, or dies or matrices for making the same, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright. Mr. SERVEN, Yes, Mr. Chairman; I think that is only fair to the interests represented. Mr. PETTIT. You accept that as an addition to your amendment? Mr. SERVEN. We are very glad to, indeed. We think that is perfectly fair. Mr. CURRIER. A suggestion was made here the other day, the first day of the hearings, to strike out section 3, I think. M. PETTIT. Well, either that or that my amendment be added to it. Mr. CURRIER. Yes. Who was the gentleman who replied to you. Mr. PETTIT. Mr. Fuller, of New York. Mr. CURRIER. I understood Mr. Fuller to say that the question of whether subsisting copyrights covered these mechanical devices was now in the court, and they thought the court might hold that such devices were now covered. If such should be the decision of the court, would it not prohibit the use of graphophone cylinders and records already made and in use, if they were records of music covered by a subsisting copyright, under that section 3? Mr. PETTIT. If the decision of the court were such as to include talking-machine records or other sound records within the subsisting law, of course it would prohibit that. Mr. CURRIER. Does any gentleman here think we ought to legislate along that line? Mr. PETTIT. Not that I know of. I do not understand that they think so, unless Mr. Fuller was misunderstood. Mr. CURRIER. That would prevent any boy or girl in the country who has bought records and who is using them to-day from using them. Immediately, I suppose, a warning circular would go out that they must not use those records and cylinders that they had bought in good faith. It does not seem to me that we could pass any such legislation as that. A GENTLEMAN. Mr. Chairman, that is exactly the position of a great many of the interests involved and exactly the position on which we wish to be heard here to-day. Mr. CURRIER. I do not think you need spend much time in talking about subsisting copyrights. Mr. BURKAN. The intent of this act is to make it apply to compositions copyrighted after this act goes into effect. Mr. CURRIER. I understand that another section provides that; but it must be in conflict with this section if the courts should hold as Mr. Fuller thinks they may. Mr. BURKAN. But the amendment to section 3 should be that the devices and contrivances mentioned in subdivision (_g_) shall apply only to compositions copyrighted after this act shall have gone into effect, and say nothing about subsisting copyright. Mr. CHANEY. It can be readily modified to suit that. There is not any question that we do not want to make it retroactive. The CHAIRMAN. Mr. Putnam, is Mr. Davis here now? Mr. PUTNAM. Mr. Davis is here. Mr. Davis, it is necessary to know how the hour assigned to particular opponents of the music provision, or a group of them, is to be apportioned, and whether the statement that you are to submit is part of that or not. They understand that it is distinct from the group of statements by them, and they also state that they understood that you understood that, and that your statement would be brief, something like fifteen minutes. I ask in behalf of the Chairman as to this understanding. Whom do you represent? Mr. DAVIS. Inventors as a class of their own, and distinct from manufacturers. Mr. PUTNAM. No particular establishment? Mr. DAVIS. No, sir. Mr. PUTNAM. And no particular association? Mr. DAVIS. No, sir. The CHAIRMAN. How much time do you wish, Mr. Davis? Mr. DAVIS. About 20 minutes. The CHAIRMAN. You may proceed, Mr. Davis. STATEMENT OF G. HOWLETT DAVIS, ESQ. The CHAIRMAN. Will you not state your name and who you represent? Mr. DAVIS. My name is G. Howlett Davis. I have been an inventor during all of my majority and represent inventors as a class. I hope to show how the passage of this act will, first, discourage invention; second, restrict patent grants already held by inventors; third, provide authority to confiscate an inventor's physical property; fourth, to abrogate the inventor's constitutional rights, and, fifth, to create a monopoly which would be practically controlled by a few to the detriment of inventors and the public. Of course, there are a good many subjects to take up here in the limited time allowed me, and I am willing to take them up in any order you may designate. The CHAIRMAN. I think it only fair that in your case as well as that of the other gentlemen the time devoted to questions should not be considered as part of your time, and taken out of your time; but I would like to ask one or two questions before you begin. Do you understand that this bill proposes to interfere with existing patent rights? Mr. DAVIS. Yes, sir. The CHAIRMAN. Vested rights? Mr. DAVIS. Yes, sir. I shall take that up first, if you please. Senator SMOOT. You mean, then, that section 3 is the section that interferes with them? (Mr. Davis looks for the bill.) Senator SMOOT. If you have not it there, do not bother about looking for it now. Go right on. Mr. DAVIS. I had a marked copy here. Senator SMOOT. We will listen to you when you come to that section, anyhow. The CHAIRMAN. You may proceed, Mr. Davis, and we will not interrupt you during your twenty minutes. Mr. DAVIS. Thank you, sir. I would like to first explain that I am here without counsel and without any previous notice from the Copyright Office, and without invitation from any source whatever. I discovered the existence of the proposed bill by mere accident on Saturday last. I was then notified that a firm which operates under my patents would have to go out of business if this law passed, and would necessarily have to cancel its licenses with me. That concern is the Perforated Music Roll Company, with offices at 25 West Twenty-third street, New York City. I have also just to-day received similar intimation from another concern manufacturing under my patents in Philadelphia, the Electrelle Company, just organized for a million dollars for the manufacture under my patents for reproducing music mechanically. I have been inventing in numerous classes during the last twenty years, including printing presses, typesetting machines, typewriting machines, clocks, stencil duplicating apparatus, etc., but about ten years ago I took up the class of self-playing musical instruments. I recognized that there was a peculiar relation of this art to copyrighted musical compositions, and I saw that in some way whatever devices I might invent for the reproduction of music mechanically might interfere with the composer's rights, because music is a necessary component part of the class of self-playing musical instruments, and you all know that this industry has become one of the greatest of the young industries of the country. You can take up any magazine and you will see many pages filled with descriptions of self-playing musical devices, including phonographs, graphophones, apollos, angeluses, cecilians, pianophones, and a hundred other devices for reproducing music automatically. As far as I am able to ascertain none of these concerns have had notice of this bill, and the two concerns who are operating under my patents not only have had no notice, but have notified me, as before stated, that in case of the passage of the bill they will have to annul their contracts with me. From dire necessity I was compelled to work for two years with the Æolian Company, a concern which attempted to take from me without due consideration inventions which I believe have since been recognized as superior to their instrument, the pianola. During the St. Louis exposition the Government officials sought for a self-playing device which would represent the highest advancement of the art. Among others they considered the pianola, manufactured by the Æolian Company, and they also went further and considered the inventions of poor inventors who had no backing; and finally they selected my device as the sole exhibit. It was the only self-playing musical instrument which was exhibited in the Government building during the St. Louis exposition. After I left the Æolian Company, declining to accept the compensation which they offered me, they have persecuted me in the courts for years. Moreover, as I can prove to you if you will only give me time to produce the documents from my attorneys (I waited for them until the last minute this morning), this concern, failing to secure a monopoly or strangle my invention through the courts, and recognizing, as a result of the Government and other indorsements of it, that it would in time be universally recognized as a superior instrument, has connived with music publishers and secured from nearly every member of the Music Publishers' Association a contract which sets forth that in case the music rolls or records are decided by the courts to come within the copyright laws, they will take over from them the exclusive right of reproducing their music for a compensation. These contracts I have seen with my own eyes. I can swear that they exist, but unfortunately I can not produce them this morning. But I will agree to produce at least two of them if you will give me a week's time to do it. Mr. CURRIER. You will have the necessary time to put anything of that kind in the record. Mr. DAVIS. I thank you. Now, the Æolian Company, being back of the independent members of the Music Publishers' Association, have influenced in turn the music publishers as an association to insert in this bill clauses which will cover mechanical methods of reproducing music; and in proof of this I will say that as a result of Mr. Solberg's kindness yesterday afternoon in allowing me to search the records of the star-chamber proceedings presided over by the Librarian of Congress, that the first introduction of those clauses was made by Mr. Bacon for the Music Publishers' Association in the form of an amendment which now appears in all of its substantial terms as subdivision (_g_) page 2, of the bill. Now, the independent music publishers in turn control the great majority of composers, so that there is thus formed a complete monopolistic octopus, in which the Æolian Company forms the head and brains, the Music Publishers' Association the body, the independent publishers the writhing arms, and the composers the suckers and baiters. [Applause.] The Æolian Company is a ten-million-dollar concern whose monopolistic game has already been uncovered in several courts, as I will show by proofs, and the music publishers are here to pull its chestnuts out of the fire. [Applause.] Now, if the inventors of this country knew what was in this bill there would be enough here to fill up every room in this great building, but they do not know it. It will strike them like a thunderbolt out of a clear sky when they learn that there are clauses in this bill which not only seem to lessen or destroy the scope and commercial value of our existing patent and confiscate our physical property, etc., but also imprison us in case we infringe the proposed copyright act. Now I will read you from---- Mr. CHANEY. What is your first subheading there that you are going to talk from? Mr. DAVIS. That it will discourage invention, but I would like to take up this bill first; I would like to take it a little out of set up in my preamble. Mr. CURRIER. Subdivision (_g_) on page 2? Mr. DAVIS. Subdivision (_b_) on page 1. Mr. CHANEY. All right; "To sell, distribute, exhibit, or let for hire," etc.? Mr. DAVIS. Yes, sir. Mr. CURRIER. I do not see how that touches your industry. Mr. DAVIS. No, sir; I had my marked copy here---- Mr. CURRIER. I should say "(_g_)" was the first one that would affect you. Mr. DAVIS. Yes, sir "(_g_);" you are right, Mr. Currier. Mr. CHANEY. That is, "To make, sell, distribute, or let for hire any device, contrivance," etc.? Mr. DAVIS. "To make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work." Now, in this art of self-playing musical instruments alone I have been granted some twenty-seven patents by this country, and have also been granted patents all over the world. My patents read very similar to this--that I shall have the exclusive right to make, use, and sell the mechanical contrivance covered by the claims of those patents, and those claims embody, in connection with the mechanism, a perforated roll, which is a controller for the instrument, and is an essential part of it, and in the case of phonographs or graphophones they include the engraved record. Notwithstanding that I have gone ahead in good faith under the reading of the Constitution and the laws as construed by the courts right up to date, that composers shall be limited to their "writings," intimating thereby that we inventors should have the right to any methods that we might discover for mechanically reproducing music--notwithstanding that I have expended years of effort and all my money, time, and labor to devise these machines, and have built models and exhibited them, and companies have been formed around them--and notwithstanding that my patents give me the exclusive right to make, use, and sell these machines, this proposed act comes out and says that "any device especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any published and copyrighted work after this act shall have gone into effect," etc., shall be illegal, and subjects me to all those hardships enumerated in my preamble, and transfers to the copyrighter in almost the exact words of my patent those rights given me by the Commissioner of Patents under the authority of the Constitution. I am not a lawyer, and never made a public speech before in my life, and can only speak to you out of the fullness of my heart. I have not even been able to get my counsel here---- Mr. CHANEY. I do not think you need any. [Laughter.] Mr. DAVIS. After destroying or limiting the patent rights already vested in me as explained, and transferring them in whole or part to the copyrighter, as contemplated in subsection (_g_), page 2, in the bill, I am, by another part of the bill, liable to imprisonment if I infringe a copyrighted composition, and this I will do of necessity if I proceed under the authority of my existing patents giving me the exclusive right to make, use, and sell my mechanical device for reproducing music, whether copyrighted or not, thus through two conflicting grants, one to the composer and the other to me, I may innocently---- Mr. CURRIER. Not if you do it innocently. If you read it carefully you will find that that is the case. Mr. DAVIS. There is a paragraph further over, section 25, page 18, which provides that anyone who shall knowingly and willfully infringe the proposed copyright "shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year." Now, if I proceed "willfully" to exercise my full rights as vested in me by my existing patents in defiance of the conflicting and unconstitutional copyright grant proposed, then the copyrighter can put me in jail for a year and during my incarceration and during the entire life of my patents make, use, and sell my machines under the provisions of subsection (_g_). It is no misdemeanor for one inventor to infringe the patents of another inventor, no matter how frequent and willful such infringements may be; then why imprison an inventor for infringing a usurping copyrighter. Supposing such infringements are innocently made, then wealthy and unscrupulous corporations, such as the Æolian Company, through their unscrupulous lawyers, will succeed in jailing many poor and innocent inventors. It is hard enough now for most inventors to keep out of the poorhouse and the courts; don't add to their present hardships. Senator SMOOT. Mr. Davis, of course you mean that that would happen if you published something after the passage of this act that was copyrighted? This act plainly says, in section G: "Any work published and copyrighted after this act shall have gone into effect." It does not affect anything at all that you have done before? Mr. DAVIS. Yes; but it applies to machines that I have already invented and which I may use after this act, according to my patent, to mechanically reproduce any music of the past, present, or future. Mr. WEBB. It does not apply to pieces that you play on those machines now, though, even if they are now copyrighted, does it? It only applies to pieces copyrighted after this act goes into effect. Mr. DAVIS. My machines, those that I have been inventing and patenting for years, are specially adapted to reproduce, or may be specially adapted and arranged to reproduce any particular piece, whether copyrighted to-day or hereafter. Under the Constitution, as I understand it, I have the right to use anything that is not a writing, a readable writing; and I have gone ahead under the Constitution with the full reward therein provided as an incentive for my work. The bill covers not only pieces or controller records, but also the machines which they actuate. Mr. WEBB. You do not understand, though, Mr. Davis, that this act will destroy any of your vested rights at present, do you? Mr. DAVIS. I do, sir; as I have explained, though perhaps not clearly. Mr. WEBB. When it says that it shall only apply to works published and copyrighted in the future? It only applies to works copyrighted and published after this act goes into effect, and I do not see how it can affect any vested right which you have on account of your past investments. Mr. DAVIS. But the idea of inventions is to be able to produce a mechanism which can be specially adapted to any music, whether of to-day or to-morrow. My patent grant does not except new copyrighted pieces. Mr. WEBB. I understand that; but there are two propositions involved here. The first is, you say it will destroy what you have already invented. The next is, you say it will destroy you because of your inability to get hold of these pieces that will be published and copyrighted in the future. Is that your point, now? Is that your argument? Mr. DAVIS. I say that this practically depreciates or destroys the marketable value of my inventions or machines, which are capable of being used for mechanically reproducing either old or new music, as well as destroying in part or whole my existing patent rights. Mr. WEBB. Because it will not let you reproduce works published and copyrighted in the future? Is that the reason, now, why you say it will destroy your invention? Mr. DAVIS. Yes, sir; coupling this admission with my previous explanations. Mr. WEBB. I wanted to get your meaning. Senator SMOOT. Or, in other words, if Mr. Sousa should have a very popular air or piece produced in the future, you think that you ought, as you have in the past, to simply be permitted to reproduce that by your machine? Mr. DAVIS. Yes, sir; either I or any other patentee. Senator SMOOT. Without any consideration whatever? Mr. DAVIS. Yes, sir, I do; because outside of a possible minor and remote ethical or equity right, he possesses not a vestige of a statutory or legal right to stop me. Senator SMOOT. And whatever his brain, and his talent, and his gift has brought forward, you are entitled to use? Mr. DAVIS. And I want to go ahead and explain, if you will allow me, why I say that. Before I took up this art of self-playing musical instruments, as I said, I saw that there was a possible limitation, and that in order to make inventions commercially successful I would have to use musical compositions. If I used old music, they would be useless. I would have to use current music; and I read the Constitution, and the very first article of the Constitution that I came to, section 8, reads: That the Congress shall have power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. Mr. WEBB. Mr. Sousa insists on that, too. [Laughter.] Senator SMOOT. Yes; I was going to say, that is just exactly what Professor Sousa insists upon. Mr. CHANEY. That is where the other fellows claim they come in. Mr. DAVIS. There is where Mr. Sousa and the trust, on one side, and I are going to lock horns--right here with the Constitution as our battle ground. Mr. MCGAVIN. Would you like to amend that? Mr. DAVIS. No, sir; I want the Constitution to stand as it is. It is not the construction Mr. Sousa puts on this word "writing" therein; it is not the construction that I put on it; but I followed this matter down, as an inventor. Every decision that has ever been made in this country and England, as I read it, has limited that word "writing" to mean some visible and readable writing; not the mere making of a wave in the air. If I invent improvements in wireless telegraphy, the Government does not grant me anything but the mechanical means of doing that, or the method. It does not give me exclusive right to use God's free air and vibrate it. For instance, we will imagine Mr. Sousa facing an audience of ten thousand persons and behind him one hundred skilled musicians who, upon the movement of Mr. Sousa's baton perform in melodious concord upon one hundred different musical instruments. We will, for illustration, as audiences do without suggestion, forget the inventors who evolved the orchestral musical instruments and without which Sousa's band would be a nonentity, and take under consideration only one of the inventors who have formed part of the audience which has been enraptured. After the performance the thought occurs to many that it would be a blessing to mankind if such music as they had heard could be reproduced at will for their own pleasure and for that of those who are in remote sections of the world and for those who are too poor to pay for even the lowest-priced seat. One of the inventors present determines that he can produce the great desideration to practice, and from that moment commences to evolve in his mind thousands of different apparatus which appear to him feasible for the full achievement thereof. After years of experimenting he is ready to test a machine which, in some of its structural features, resemble that of the human organism. The inventor's machine is set up within the range of the air waves, set in vibration by the instruments of Sousa's band, and which air waves are escaping into space to be lost to man forever. The ear-like diaphragm of the instrument is impinged by and set in motion, and through connecting means resembling the human oricular bones and nerves there is engraved upon a sensitive surface not far unlike the material matter of the human brain a record of every minute vibration of all the one hundred instruments. After the performance no one in the audience, musician though he be, can simultaneously resound any two instruments, and the majority of the audience would be hissed if they attempted to resound any one of the instruments. Not so with the mechanical listener, for it is capable of resounding simultaneous and accurately all of the 100 instruments, and upon the expenditure of 50 cents for a copy of the machine-made record the poor man and his family in every part of the world can, by a slight movement of his hand, start up his $7 graphophone and thus be amused and enraptured, all owing to the inventor having caught, preserved, and provided means for mechanically reproducing the air waves which would have otherwise have escaped beyond Sousa's power to recall. Nevertheless, the bill provides that the lost chords must be all returned to Sousa by the inventor in the form of a royalty. There is no novelty in music, nor vibrating the air as a means of transmitting musical tones, for-- Long 'ere earth was matter or had form, Music out of wind and lightning was borne; It was thus God solaced nature, And her troubles were shorn. Now, defining an ethical or equity right which the inventor might claim with equal justice against Sousa and other composers, the common people all over the world, who listen to the mechanically reproduced lost chords of Sousa's band, do frequently order and pay for the sheet music score for the piano, banjo, violin, and other instruments which the purchaser plays or thinks he can play, and upon all these orders induced by the inventor's machine he is entitled to a commission, which in actual fact and adjustment would offset the alleged right of the royalty claimed in this bill. There are many other corelated equity rights which us inventors might set up but which it would be impracticable to secure to us. The CHAIRMAN. Mr. Davis, if I may interrupt you, do you claim that you have the right to take one of Mr. Sousa's compositions and use it in connection with your mechanical device without compensation to him? Mr. DAVIS. Under the Constitution and all the laws of the land, I say yes, decidedly; but I want to explain my contention and the position of inventors in a little different line of argument. The composer of music never conceives nor produces, and never did in respect of the actual composition, conceive or produce, any means for conveying to the ear the musical composition. On the contrary, all such means from the beginning to the present time are the direct result, not of authorship, not of composition, but of invention. The composer never conceives the idea of a mechanical means for playing a piece of music. That achievement is the result of the effort of the inventor. The Constitution makes no distinction in respect of right of protection as between an author and an inventor, but both are coequal under the Constitution, and the line or field within which each may be protected is clearly marked out in the Constitution, the result of authorship being distinctly distinguished from the result of invention. The author is restricted by the Constitution to protection for "writings" and the inventor to "discoveries." The courts have determined what may properly come within the constitutional provision of discoveries, and it has been determined a number of times that under the constitutional provision a writing does not include a mechanical contrivance. If the law under discussion be enacted it will operate to take away from the inventor the rights which are vouchsafed to him by the Constitution and by the laws of Congress enacted in pursuance thereof, and deliver his rights over to the author or composer of a literary production or a musical composition. Such a procedure would clearly annihilate the inventor, offering him up as a sacrifice to the author or composer. The Constitution intended no such thing, and in matter of every right, irrespective of the limitations provided by the Constitution, Congress ought not to pass a law which turns the inventor over to the mercy of the author or composer. It is needless to mention to this committee the unprecedented state of prosperity and material progress attained by this country as the direct result of invention. In all arts the work of the inventor will be found at the foundation of the progress and prosperity of the country. The author or composer has to do more with the pleasure or esthetics of life, the inventor with the real necessities, and in the art allied to the fine arts has had to do with placing throughout the United States in the possession of the common people everywhere the means by which the composer as composer can never give them. It is not for a moment intended to detract from the value of the work of the author or composer, for his work is valuable, but its value has certain limitations, and these limitations are defined in the Constitution and acts of Congress heretofore passed in pursuance thereof. The farmer or the workingman in all the small towns of this country, who are possessed of an electrical piano player or an automatic piano player, or a graphophone or a phonograph, which serves to relax the tension of their daily labor and fill their souls with music, is not because of the composer, for he rarely reached them, but it is the direct result of the inventor of the mechanical contrivances with which music may be conveyed. Yet this law attempts to reach out and take away from the inventor the product of his brain and to deliver it over to the composer. So far as the mass of the people of this country is concerned, the work of the composer is infinitesimal as compared with the work of the inventor, and the inventor is willing that the composer shall have his just rights under the Constitution; that is to say, shall have full protection in his writings, but does protest that a law should not be passed which will enable the composer to overstep the field of protection to which he is entitled under the Constitution and usurp that which the Constitution has particularly provided shall be with the inventor. Mr. CURRIER. Would you object to paying a reasonable royalty to a musical author or the proprietor of the copyright if all companies would get the right to use that piece of copyrighted music upon the same terms? Mr. DAVIS. Most assuredly not--no, sir; I would not, provided---- Mr. CURRIER. You would not object to paying a reasonable royalty if that right was given to all upon the same terms? Mr. DAVIS. Provisionally I would not object, but your proposition is one which mainly interests the manufacturers of my machine, whom I do not represent. As an inventor I approve of the bill as a whole and only seek to strike out therefrom those comparatively few words covering mechanical devices, the insertion of which vitally affects our present vested rights. Mr. CURRIER. If it could be worked out along the lines suggested, you would not object to that? Mr. DAVIS. No, sir; no, sir. But, in my opinion, you will never be able to draw a better or more workable line of demarkation between the inventor and composer than that now set up by the Constitution, particularly if you follow the lines of the present bill as regards mechanical devices, in respect to which collusive elements have been at work behind the drafting of the bill. I will give you my word of honor to produce evidence of it. The CHAIRMAN. Of what character? Mr. DAVIS. That Mr. Sousa, or rather the majority of composers, have been sold out by their publishers to this monopolistic octopus, the Æolian Co. and lesser satellites, and that contracts exist which anticipate and control benefits designed primarily for the composers, with whom us inventors have no direct fight. Mr. CHANEY. The idea is now, you know, to try to protect these people who produce the music to the public, and all that. They have rights which we are bound to respect, as well as the inventor. Mr. DAVIS. Yes, sir; and I would help you in all reasonable and lawful efforts. Mr. CHANEY. And the idea now is to try to evolve something that will treat everybody fairly. Mr. DAVIS. Yes, sir. But if the Constitution has led inventors on, given an incentive to them to go ahead and work and devote their funds and lives to developing these industries, which are second to none in the world as young industries, it would be wrong to come in at this stage and either curtail the incentive or subtract from rights already vested in them. Mr. CURRIER. Yes; but that very clause gives the same incentive and protection to the musical author, does it not, as to the inventor? He is protected on his writings as you are on your discovery? Mr. DAVIS. Yes, sir; there is a line of demarcation set up in the Constitution. I went in to try to get the line of demarcation between an inventor and a composer. I went in, as I thought, intelligently. I have studied the laws right down to the last decision of the 25th ultimo, that of the court of appeal for the second circuit, and all confirm the contention which I have made here that the only incentive held up to the composer is a specific protection for his "writings," not on machines. The CHAIRMAN. Would you object to Mr. Sousa taking your invention and combining it with his composition and putting it upon the market? Mr. DAVIS. If there was some fair, equitable way of doing that, no sir, I would not. But unfortunately, we inventors and composers are the ones that are generally imposed on, and naturally I am fearful that any change in the laws as they now exist will prove disadvantageous to both our interests. Mr. MCGAVIN. If I understand your position correctly, you feel that Mr. Sousa has no more right to require any further compensation from a phonograph company, if it be a phonograph company, for the use of any particular piece of music which has been copyrighted, and of which he has received the benefit, than an inventor of a drum would have a right, after he has been protected by a patent right, to require Mr. Sousa to pay further for the use of that right. That is your position, is it not? Mr. DAVIS. Well, you can look at that in two different lights. From the legal standpoint he has no right whatever. From an ethical standpoint there seems to be a sort of remote ethical right. I am not a lawyer, and not used to legal verbiage, and am not sure that I can clearly differentiate between legal and ethical rights. Mr. CHANEY. Well, this is the "Constitution between friends," you know. Mr. DAVIS. As inventors we proceeded under the laws of the land as they exist. Mr. MCGAVIN. That is just what I say. Mr. DAVIS. Mr. Sousa, through his publishers, has tried in the various courts to have the word "writing" broadened, but he has failed to do so, and he now comes to you to do it. In no copyright act or law has there ever been introduced before--you will not find it anywhere--one word or clause or phrase, before this one, that covers mechanical devices. Mr. CHANEY. Under that word "writing" you want to exclude such people as Mr. Sousa entirely from its operation in respect to self-playing musical instruments? Mr. DAVIS. If you are going to work under the Constitution; yes. Mr. CHANEY. Then, is it not high time that we were giving it a little wider construction than that? Mr. DAVIS. I think it is rather late in the day, after we inventors have spent our lives at this art and created a new industry. I think you ought to have done it soon after 1789, if at all, and if the law had been passed then there is no inventor in the land that would have gone ahead developing this particular art. Mr. CAMPBELL. Why not, Mr. Davis? Mr. DAVIS. Because we would have been dominated by composers, as I have explained at great length. Mr. CAMPBELL. Mr. Sousa can not use your machine nor your process. Mr. DAVIS. But we would have gone into other fields or arts not dominated by composers. We would have left this art undeveloped. He may make use of machines if he can construct them with "writings" or musical tones and infringe only a remote correlative ethical right of the inventors. Mr. CAMPBELL. Well, now if there is a mercantile demand, a commercial demand, for your method of reproducing music, why would you not have gone into it for exactly the same reason? If Mr. Sousa's music, played upon your machine, meets a public demand, he must use your instrument just exactly the same as you use his music. Mr. CURRIER. But suppose there are half a dozen of these concerns and one of them, by an arrangement with the musical publishers of the country, gets control of all the copyrights? Mr. DAVIS. That is what they have done, sir. Mr. CURRIER. Then would the competing concerns be able to use their instruments at all? Mr. DAVIS. They might use, but could not sell, and over their pecuniary misery would weep alone. [Applause.] Mr. CAMPBELL. The proposition here is that this bill, as I understand it, does not affect what has already been done. It applies to the future. You all stand upon the same level, and that relates right back to the contractual rights of the parties. If Mr. Sousa desires to make a contract with some machine producing music independent from yours, why should his right to do so be restricted by us under the law? That is the question I would like to have you answer. Mr. DAVIS. Well, sir, I am not a lawyer---- Mr. CAMPBELL. No; but that is a practical question. Mr. DAVIS. I have been trying to get counsel here. He would probably have advised me in my opening speech for the opposition to imitate Mr. Sousa in making a bid for your sympathy and avoid a discussion of fine legal points, but I will give you my practical ideas of that. I am an inventor who has studied the law, but without being a lawyer I am ready to say that as the law now stands---- Mr. CAMPBELL. I am speaking of the future. This bill affects the future. Mr. DAVIS. Well, "this bill affects the future," but has it the right to affect the future? Has it the right to change a situation which has existed since 1789? The bill proposes a change, not merely amend the Constitution, therefore I challenge the authority of Congress to enact it. At present the composer has no contractual right as regards a machine, and Congress can not give it to him. Mr. CAMPBELL. That is the very proposition we are trying to get at. The CHAIRMAN. We can not very well change the Constitution. Mr. CHANEY. It is not a question of changing the Constitution; it is a question of giving the Constitution its fullest scope. Mr. DAVIS. Well, a gentleman speaking here yesterday, Mr. Stephen H. Olin, counsel for the American Publishers' Copyright League, although favoring this bill as a whole, gave you a warning that if this bill attempted to broaden the word "writing" so as to include a machine, then the bill in this respect might be held by the Supreme Court to be unconstitutional, and I have already traced the introduction of the terms "machine" or "device" in the bill direct to the monopolistic octopus. Mr. Olin made that statement here yesterday voluntarily. Mr. CHANEY. I know that. Mr. DAVIS. Proceeding further, Mr. Olin said he was not interested in the introduction of any clause restricting the mechanical reproduction of music; that he was satisfied to leave that to the courts, and let the courts give the construction of that word "writing" in the Constitution. They have been at work at it for many years, with the result that a machine remains a machine and not a "writing." Mr. WEBB. Mr. Davis, your idea is that if the composer or publisher copyrights a piece of music and sells it and in the sale gets whatever price his copyright or royalty gives him, and you buy it, or anybody else buys it, that that purchaser has a right to play it or sing it in public or private, or anywhere else he pleases? Mr. DAVIS. No, sir; I do not say that, exactly, sir---- Mr. WEBB. What is your position, then, if that is not your position? Mr. DAVIS. Your proposition brings up the question of public performance. I say that the composer's rights are limited under existing laws to all benefits which he may receive from his visible, readable "writings" expressing his original musical conceptions, and that he can make copies of it in any manner he sees fit; but he has not the right to usurp the rights of an inventor to reproduce that music through self-acting mechanical means in public or private. The inventor has a peculiar field here. The Constitution, as I would translate it, in layman's language, says: "Now, Mr. Inventor, if you can come in and invent a machine in which the melodies that would otherwise be lost can be forever preserved and reproduced to the public for the public benefit, you shall be protected." This includes public performances. We do this in a way that does not decrease Mr. Sousa's income, but increases it, as I have explained. Mr. WEBB. If a man goes to a store and buys a piece of copyrighted music he expects to have the right to sing it and play it anywhere he pleases; otherwise, what does he want to buy it for? Mr. DAVIS. That is the human agency. Mr. Sousa's compensation may or may not cover all human agencies for reproducing that music, including public performances, and concerning which the inventor is not specially interested. The inventor should have the right to all mechanical agencies, where the human agency does not enter into it in any way whatever, including public performance. Mr. WEBB. Well, they say you can use your mechanical devices wherever you please, just so you do not use their music. Mr. DAVIS. Well, Mr. Sousa is not construing the laws. I am telling you my idea of the laws, as I understood them when I entered into this art ten years ago, and as the courts have sustained them right up to a few days ago. Senator SMOOT. Mr. Davis, as I understand you, you would not object at all to paying a royalty for any music that you may use upon any instrument that you may have invented or produced, providing that that same royalty is paid by all other concerns or individuals, and that all other concerns and individuals may have the same right to use it as any particular one that the producer of the music may even try to designate himself? Mr. DAVIS. Individually--and I believe I represent the class of inventors affected by the proposed act--and without retreating from the stand I have taken regarding our present rights, I would not object, because I recognize that remote ethical right which you are casting about to secure and deliver over to the composer together with the many other new gifts in the bill. If you can protect it in some such way as will meet my many objections, we inventors will be satisfied, but I am constrained to say that I think your efforts will be futile. The CHAIRMAN. I think that is all, Mr. Davis. You can submit in writing any further statement that you desire to make. Mr. DAVIS. Thank you; and may I submit later the evidences and proofs to which I have referred? The CHAIRMAN. You may do that. Mr. DAVIS. Senators and Representatives in joint committee assembled, I thank you for the close attention which you have given to my remarks and for the liberal extension of time within which to make them; and on behalf of the inventors of this country I assure you of our full confidence and belief that you will finally modify the proposed act in a way that will protect our properties and persons against the monopolistic giants who do now or may hereafter seek to destroy us. Mr. SOUSA. Mr. Chairman, the gentleman referred to "visible music." Now, as I think you can see, that [referring to sheet music] is music, one notation. This [indicating perforated roll] is a perforated roll. That is visible; that is music in another notation. That is what they are taking [indicating perforated roll]; that [indicating sheet music] is what we are paid for. Mr. HERBERT. Mr. Chairman, one word. Mr. Davis has made a statement which is absolutely untrue. He said, speaking about the Æolian Company and this contract which they have signed, or made the publishers sign with them, that "They control the publishers and the publishers control the composers." That is absolutely untrue in my case. Nobody controls my works, the works that I am going to write. I am going to bring out a work in September, of which I have only written a few notes so far. I do not even know what I am going to write, and nobody has a contract with me to-day. I want to state most emphatically that I have not even been approached by any firm for the future. Mr. CURRIER. Who is your publisher? Mr. HERBERT. Mr. Whitmark, of New York. Mr. CURRIER. Has anybody else published any of your music? Mr. HERBERT. Yes; Schubert & Co., Schirmer & Co., and so on. Mr. CURRIER. Do you mean lately? Mr. HERBERT. That was before I went with Whitmark. Mr. CURRIER. How long have you been with him? Mr. HERBERT. About six or seven years. Mr. CURRIER. And nobody else has published any of your music in six or seven years? Mr. HERBERT. Not since then; no, sir. Naturally, I have a perfect right to go around to my friends and get the best offer I can, have I not? Mr. CURRIER. Surely. Mr. HERBERT. There must be competition. But I want to state most emphatically--and I know that these gentlemen are going to try to make the point that arrangements have already been made--that there have no arrangements been made in my case--absolutely none. I have not even been approached by any one of the companies--not even by the company, for instance, that is in favor of paying the royalty, the Victor Talking Machine Company. They have never spoken a word to me about the future, and I have not made a contract for my next work with Whitmark & Sons yet. I may publish it with somebody else; I do not know. So I am perfectly free to say that his statement in that respect was absolutely untrue. Mr. SOUSA. I would like to say, Mr. Chairman, that I have never been approached by any of the mechanical instrument companies; and the house which I have a contract with, the publishing house, is not a member of the Music Publishers' Association. I have never even been approached by any of them, and I have no contract with anyone. The CHAIRMAN. We will hear you now, Mr. O'Connell. Mr. PUTNAM. Mr. Chairman, for the group of interests which are now to be heard I wish to make a statement that they might feel called upon or required to make, but which it is not fair should be taken out of their time. They were not participants in the conferences. How completely they were omitted is apparent only from the list. That list is before you. It will take but a moment to read the titles of these associations: American Authors' Copyright League, National Institute---- Senator SMOOT. We know them. The CHAIRMAN. They are already in the record. They have been laid before us. Mr. PUTNAM. They were not participants in the conferences. They were not invited to the conferences by the copyright office. There were no notices sent to them from the copyright office that the conferences were being held; that these provisions were being considered at them. The copyright office shows, so far as I am aware, no communication with them on the subject of any of these provisions. We have never, ourselves, in any way notified them that these provisions were being proposed for the bill. I say that as much because it is to their advantage that I should say it as for them to say it, and it is not fair that that statement should have to be made at the expense of their time. STATEMENT OF JOHN J. O'CONNELL. Mr. O'CONNELL. We intended to make that statement ourselves. The CHAIRMAN. Whom do you represent? Mr. O'CONNELL. I appear on behalf of ten independent manufacturers of automatic piano players in the city of New York, and the names of these concerns are as follows: Winter & Co., Ludwig & Co., Jacob Doll & Sons, Laffargue & Co., John Ludwig, the Regal Piano and Player Company, Ricca & Son, the Auto-Electric Piano Company, Newby & Evans, and the Estey Piano Company. I also appear on behalf, by arrangement here, of independent manufacturers of music rolls. I can also say that possibly what I shall have to say to your committee will represent the ideas of the various independent manufacturers of automatic piano players in the United States and the various independent manufacturers of perforated music rolls. To anybody reading the provisions of this bill it would appear very clearly that one of the great special interests were the manufacturers of perforated music rolls. Proceed a little further and it will be very apparent that the manufacturers of automatic piano-playing instruments, which can not be operated without music rolls, had a very special interest in this bill. It would be the easiest thing in creation to notify the manufacturers of music rolls and the manufacturers of automatic piano players of these conferences. Take up any directory of manufacturers in the United States and you would find them by the dozen. The CHAIRMAN. Let me interrupt you for a moment, Mr. O'Connell, to say that so far as I myself am concerned it does not seem necessary to continue longer upon that line, for the reason that the committees of the Senate and House are now giving you a hearing, and you shall have an ample opportunity to present your side of the case. Mr. O'CONNELL. I simply wanted to make it clear to the whole committee, as I explained it to the chairman yesterday, that it was only last Saturday that we knew what the situation was and knew what the provisions of this bill were. I might say at the outset that the companies which I represent are not members of that class which Mr. Putnam so delicately denominated as pirates. We are here to protect industries in which there are invested millions of dollars. It has also been said by some of these special interests which are appearing in favor of the bill, in elegant language, that we were "butters-in" at the eleventh hour, and that we are here for the purpose of a hold-up. If protecting our business makes us butters-in and hold-up artists, then we come under that definition. I want to say furthermore, at the outset, that we have no particular controversy or quarrel with those very eminent gentlemen, Mr. Herbert and Mr. Sousa. It is perfectly proper for them to seek to get all they possibly can from the products of their genius, but we are all a great deal too sentimentally inclined toward them and their possessions because of the many hours of delight they have given to every one of us. Here is our position, and I will try to outline it as briefly as I possibly can: A number of years ago in the city of New York, within the last decade, a number of gentlemen interested in a manufacturing concern, one of the pioneers in the piano-playing industry, had the foresight to realize that the industry was destined to become one in which there were millions of dollars of profit, followed the conclusion that they would like to get for themselves all of the millions in that particular industry. The question was how to achieve and attain that result. Naturally they turned to the patent laws, to get monopolies under patents covering not only the machines themselves, but also the music rolls, without which the machines could not be operated, and machinery for cutting such music rolls. Applications were made on their behalf for hundreds of patents, both on the machine and on the music rolls, and on machines for cutting the music rolls. Before they had gone very far, however, it developed that the patent laws would not afford them a monopoly of the machines or the music rolls, because of the fact that they could not get and control a basic patent, for the reasons that in the first place the operation by means of wind instruments, vacuums, etc., of an automatic playing device was as old as pipe organs, and furthermore that the perforated music roll or perforated music sheet was also as old as the very ancient hand organ. Therefore they saw that it was utterly impossible for them to obtain the monopoly which they wanted under the patent laws, and naturally the next thing for them to consider was: Can we not attain the required result through the copyright laws? Eminent counsel were retained, and those eminent counsel, after an examination of the existing copyright laws and decisions, made this discovery: That in what is known as the McTammany case, decided by Judge Colt in the United States circuit court for the district of Massachusetts some twenty years ago, that jurist held that the perforated music sheet used in a hand organ was not an infringement of the copyright music sheet covered by the statute. When they had reached this point it became necessary to develop a new line of action, and this was the new line of action: Now, there existed at that time an association of music publishers, and that association included and includes practically all of the big publishing houses which turn out the classical as well as the modern and popular compositions of the day. They said to themselves: Let us make contracts with all of these houses whereby we will get from these houses the exclusive right to reproduce the compositions which they handle in music rolls and other mechanical devices. Then we will go ahead and we will institute suits and try to obtain a reversal of the decision of Judge Colt in the McTammany case, and if we fail in that, then, holding exclusive contracts as we do with the vast majority of the publishing houses, we will go before the Congress and get from it what the courts refused us. Mr. Chairman and gentlemen, I am not speaking in the air about this. I have here with me a copy of two contracts made with one house in Chicago by this monopoly, and I now offer in evidence those two contracts. Mr. CURRIER. What is this monopoly? You have not mentioned the name of it. Mr. O'CONNELL. The Æolian Company, of New York, which is a Connecticut corporation. DEFENDANT'S EXHIBIT ÆOLIAN-SUMMY CONTRACT. _Document No. 1._ Memorandum of agreement, made and entered into this 30th day of April, 1902, by and between Clayton F. Summy Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the Æolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York in the State of New York, party of the second part, hereinafter called the Æolian Company, witnesseth: That whereas, the publisher is the proprietor of certain copyrights for musical compositions and the owner of rights in copyrights for other musical compositions; and Whereas, the Æolian Company is engaged in the business of manufacturing and selling automatic musical instruments controlled by perforated music sheets, and in manufacturing and selling machines for playing keyboard musical instruments, which machines are controlled by perforated music sheets, and in manufacturing and selling perforated music sheets for such automatic musical instruments and machines; and Whereas, the Æolian Company is desirous of acquiring the exclusive right for such perforated music sheets in and to all the copyrighted musical compositions of which the publisher is the proprietor, or as to which he is the owner of any rights, and of all those other musical compositions which may hereafter be protected by copyright, and the copyrights for which or rights in which may be acquired by him; Now, therefore, the publisher, for and in consideration of the premises, and of the sum of $1, lawful money of the United States, to him paid by the Æolian Company, receipt of which is hereby acknowledged, and for and in consideration of the true and faithful performance by the Æolian Company of its covenants hereinafter made, does hereby sell, assign, transfer, and set over unto the Æolian Company, the exclusive right for all perforated music sheets of the kinds aforesaid in and to all the copyrighted musical compositions of which the publisher is the proprietor, or in the case in which he is the owner of any less rights, to the extent of said rights, and does hereby covenant and agree with the Æolian Company to give and secure to it, the exclusive right in like manner for all perforated music sheets of the kinds aforesaid in and to all those other musical compositions which may hereafter be protected by copyright, and the copyrights or rights in which may be acquired by the publisher. And the publisher for the consideration aforesaid hereby covenants and agrees, so far as it may be reasonably in his power, to protect the Æolian Company against any claim of any third person in respect to any and all copyrighted musical compositions which may be involved in this agreement, and the copyright of which may be owned by the publisher. And the Æolian Company for and in consideration of the premises hereby agrees that it will keep correct and true books of account in which it will set down or cause to be set down entries of all perforated music sheets made by it for playing the copyrighted musical compositions owned or controlled by the publisher; that it will on the 20th day of each and every January and July, during the continuance of the manufacture and sale by it of the perforated music sheets for playing such musical compositions, render unto the publisher a correct and true statement of the number, names, and other designations of such perforated music sheets sold by it during the six preceding calendar months, and that at the time of rendering each and every such statement it will well and truly pay unto the publisher a license fee or royalty of 10 per cent of the list prices made by the United States publishers of the printed scores or copies of such musical compositions, but never more than 50 cents for any one of such perforated music sheets. And the parties hereto mutually covenant and agree that nothing herein contained is to obligate the Æolian Company to pay any license fee or royalty upon such perforated music sheets as shall be made by it in the United States and sold or shipped to any other country, unless it shall have been decided by a court of competent jurisdiction of such other country that the copyright laws of that country shall be applicable to perforated music sheets of the kind herein mentioned. And the parties hereto mutually agree and covenant that the term "perforated music sheets" is not to be construed as covering the controllers of those musical instruments which are generally known as phonographs, or music boxes, or hand organs. Anything herein to the contrary notwithstanding at the expiration of thirty-five years from the payment of the first license fee hereinbefore provided, the Æolian Company shall not be entitled to license under the copyrights thereafter acquired by the publisher, but all licenses existing under copyrights theretofore acquired by him shall remain in force until the expiration of the terms of the copyrights under the terms hereinbefore provided. During the existence of this contract, after the payment of the license fee hereunder, the Æolian Company obligates itself to prosecute diligently, at its own expense and by its own counsel, in the name of the proprietors of the copyright, all infringers of the rights granted to it, the Æolian Company. And the parties hereto mutually covenant and agree that all provisions of this agreement shall be binding upon and enure to the successors, executors, administrators and personal representatives of both the parties hereto. In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized. CLAYTON F. SUMMY CO. [SEAL.] THE ÆOLIAN CO. [SEAL.] By E. S. VOTEY, _Director_. Signature of publisher witnessed by-- J. F. BOWERS. THEODOR WILD. _Document No. 2._ Memorandum of agreement, made and entered into this 30th day of April, 1902, by and between Clayton F. Summy Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the Æolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York, in the State of New York, party of the second part, hereinafter called the Æolian Company, witnesseth That whereas the parties hereto have, of even date herewith, entered into an agreement whereby the Æolian Company is to have the exclusive right for all perforated music sheets intended for use in controlling-automatic musical instruments or machines for playing musical instruments, in and to the copyrighted musical compositions of which the publisher is the proprietor or as to which he is the owner of any rights, and in and to all those other musical compositions which may hereafter be protected by copyright and the copyrights or rights in which may be acquired by him; and Whereas the parties hereto are desirous of entering into a further agreement with reference to the matters and things expressed in the above-mentioned agreement of even date herewith; Now, therefore, the publisher, for and in consideration of the premises and the sum of $1 lawful money of the United States, to him by the Æolian Company in hand paid, receipt whereof is hereby acknowledged, does hereby covenant and agree that no charge shall be exacted from or be due from the Æolian Company for the manufacture or sale by it, or any of its customers, of any perforated music sheets of either of the kinds aforesaid, for playing any of the copyrighted musical compositions which are owned or controlled, or which shall be hereafter owned or controlled in whole or in part by the publisher, until a decision of the court of last resort in a suit which is to be instituted against some manufacturer or user, other than the Æolian Company, of such perforated music sheets, for the purpose of testing the applicability of the United States copyright laws to such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid. And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such case and from that time forward the Æolian Company will keep books of account, render statements, and pay royalties as provided by the aforesaid agreement of even date herewith, but shall be free from obligation to make payments for the past. And it is mutually understood and agreed by the parties hereto that neither party hereto is to be obligated in any way by any other provisions of this agreement, or of the aforesaid agreement of even date herewith, until the Æolian Company shall notify the publisher that a number of copyright owners satisfactory to the Æolian Company have made similar agreements with said company. And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and enure to the successors, executors, administrators, and personal representatives of both the parties hereto. In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized. CLAYTON F. SUMMY. [SEAL.] THE ÆOLIAN CO. [SEAL.] By E. S. VOTEY, _Director_. Witnessed by-- J. P. BOWERS. THEODORE WILD. Both of those contracts are dated April 30, 1902. After the making of those contracts, the action known as the White-Smith suit against the Apollo Company was commenced in the circuit court of the United States for the southern district of New York. That case went to a hearing before Judge Hazel. Right at this point I may interpolate that I now ask the chairman and the members of this committee to investigate, if they feel they have the power, into those contracts, to summon witnesses, if necessary, to determine what contracts have been made, with what music-publishing houses, by this particular concern, so that the committees may be able to determine for themselves whether this concern and the publishing houses with which they are affiliated can, in the event that this bill becomes a law, have an absolute monopoly of the vast majority of the publications, in so far as they may be reproduced into perforated music rolls or other mechanical devices for reproducing the sounds. Mr. CURRIER. I want to ask you the question that I asked Mr. Davis a moment ago: Would the people whom you represent object to paying a reasonable royalty to the author or proprietor of the musical composition if that right was given to all upon the same terms? Mr. O'CONNELL. Primarily, I appear, sir, for the independent manufacturers of automatic piano players. Here, to-day, as I understand, I am expected to speak for the interests of the independent cutters of music rolls as well. Speaking for the clients that I originally and personally represent, I answer that provided you have the power to pass such a law we have no objection to paying a reasonable royalty to the composers, provided we are put on an equal basis with everybody else and provided our business interests are protected. That is our attitude. We do not wish to be unfair to anybody. The CHAIRMAN. Protection in what way? How far do you wish that protection to extend? Mr. O'CONNELL. In this way: It is difficult to devise a plan--in answer to the question of Mr. Currier--which will protect us, and for this reason---- Mr. CURRIER. I realize the difficulties. Senator SMOOT. You have no idea of being protected any more than any other concern? Mr. O'CONNELL. No, sir; we want to have only the same rights as anybody else. You must understand, Mr. Chairman, that the Æolian Company is by far the largest manufacturer of automatic piano players. If they control the output of the device, without which those players can not be operated, it is perfectly clear that it is the easiest thing on earth for them to put one after the other of the independent manufacturers down and out. I have not thought up a plan which could be devised to protect them, because that is a very difficult thing to do, and the time given for preparation has been extremely brief. In line with what Mr. Herbert said a few moments ago, we are perfectly clear that neither Mr. Herbert nor Mr. Sousa can be controlled by this combination. They are too big. But they are the only composers in the United States to-day of whom that can be said. Mr. BURKAN. How about De Koven, and how about Julian Edwards; and how about---- Mr. O'CONNELL. That being so, it seems strange to me that those eminently respectable gentlemen, Mr. Herbert and Mr. Sousa, have been put forward here as advocates of this bill, when the very men who will be the greatest gainers by it have sedulously kept themselves in the background, and do not appear to be represented here, even nominally. What will be the result if these features of the bill are put through? Mr. Herbert and Mr. Sousa will get some benefits from it. Ninety-nine per cent of the composers will get absolutely nothing from it. The Æolian Company and the concerns affiliated with it will have millions of dollars turned into their coffers. And the net result is that the public will pay and the independent manufacturers whom we represent will either go out of business, or will have to transact business in such a way that it will be without any profit to themselves, or entirely on sufferance. That is the broad, general question that is before you, gentlemen, of these committees. We only want a square deal. We want no rights that anybody else does not get. But we do not want to have others put in a position where they can take away our right to do business on a reasonable basis. That being the broad general proposition, I shall expect during the summer vacation to supply your committees with as much information as I possibly can on these various matters, and I ask the committees to do what they can toward investigating how far I am right in this matter. I can say that those charges have been made in the White-Smith suits in the circuit court and circuit court of appeals, and they have not been answered in anyway by the representatives of the monopoly to which I refer, nor have they been denied. On the bill itself---- Mr. CHANEY. What section? Mr. O'CONNELL. I will take it from the beginning, if you please. The CHAIRMAN. Before you proceed with the bill: Have the companies that you represent made any effort to secure contracts with Mr. Sousa and Mr. Herbert and the other composers that have been mentioned? M. O'CONNELL. The companies that I represent do not make contracts with composers. The companies that I represent primarily, the 10 manufacturers, do not cut perforated music. They buy it. They buy it either from the Æolian Company, or from one of the many independent manufacturers of such rolls. So that we are not brought into direct contact with Mr. Sousa, Mr. Herbert, or any composers. We want to be in a position where the independents will not be forced out of the field, or where we can be forced to buy this perforated music at an exorbitant figure, or where they can be in the position of refusing to give it to us at any price. The CHAIRMAN. These companies, as I understand, under existing law simply go to the store offering the music for sale, which is music, and then put it upon the rolls. Is that right? Mr. O'CONNELL. I do not know what the particular arrangements are that the composers have with the publishers, or the publishers with the music companies. The CHAIRMAN. Under existing law, is it necessary for the manufacturer to do more than I have stated? Mr. O'CONNELL. Under the existing law, as it has been decided in the White-Smith suit, the cutter of music rolls can go anywhere and take a piece of music, copyrighted or uncopyrighted, and cut the roll from it. That is my understanding of it, without paying any royalty to anybody. The CHAIRMAN. And the gentlemen and concerns you represent desire the law to remain in that condition? Mr. O'CONNELL. I have not said that, sir. What we say is this: We want to be able to go out in the open market and buy our music rolls. We will not be in that position if this bill goes through, because with these contracts that I speak of we can not go into the open market, as there will be no open market whatever. The distribution of these music rolls will be in the hands of one house, and that house can put its own price on them, or refuse to sell them to us at all at any price. In other words, in passing this bill in its present shape, you are fostering too great a centralization of power, or putting an absolute monopoly into the hands of one group of men. That is our objection. If some means can be devised whereby we get in on the same basis, whereby we can buy our records or our perforated music sheets as Mr. Currier said, on the same terms as anybody else, we have no fault to find, then. The CHAIRMAN. How can law prevent Mr. Sousa from making a contract with the Æolian people or any other concern that he may desire to deal with? Mr. O'CONNELL. The law can not prevent him from making any contracts he chooses with them, provided he does not contravene the law of the land itself. He can make any contract he chooses for any price he chooses. But there is the unfortunate situation: Mr. Sousa and Mr. Herbert, and gentlemen situated as they are, naturally ought to be in a position, I suppose, where they have liberty of contract; but in passing a law the greatest good to the greatest number must always be considered. If you pass this bill you do some good to these gentlemen, you do a great deal of good to the monopoly, you do absolutely no good to the vast majority of the authors, and you do a great deal of damage to a great many millions of dollars interested and invested in manufacturing industries in this country, even if you leave the purchasing public out of consideration altogether. It is a question of which you will take, unless some means can be devised to eliminate those particular features. Taking the bill itself, it was stated here by Mr. Putnam the other day that the object of this bill was to give a copyright on music rolls as to musical compositions composed after the passage of this act. That was my understanding of what he said. Mr. PUTNAM. Copyrighted afterwards, I think I said. Mr. O'CONNELL. Then I assumed, from the remarks made by some members of the committee, that they considered the act to apply only to compositions originally composed after the passage of this act, and originally copyrighted after the passage of this act. I do not believe, therefore, that the members of the committee are aware of the very many peculiar features of the bill in that regard. Mr. CHANEY. The bill is only submitted as a tentative proposition, to get at the right thing. It is not the result of our genius at all. It belongs to some of the rest of you fellows. Mr. O'CONNELL. It does not belong, Mr. Chaney, to me or the rest of my fellows; and we are here trying to oppose the genius of the other men, the specially interested ones who did submit it to your committee. [Laughter.] Mr. CHANEY. Well, we fellows are not trying to shut out you fellows. Mr. O'CONNELL. I know that you are not, and all we want is a fair, full, and complete hearing. Taking first, Mr. Chairman and gentlemen of the committees, subdivision F of the first paragraph. There is still a subdivision B in that subdivision F: To make any arrangement or setting of such work, or of the melody thereof, In any system of notation. Mr. CHANEY. On page 2? Mr. O'CONNELL. I am reading from the House bill. Mr. CHANEY. We have the Senate bill here. What is the section? Mr. O'CONNELL. Section 1, subdivision F. Senator SMOOT. It is on page 2. Mr. O'CONNELL. It gives the right-- to make any arrangement or setting of such work, or of the melody thereof, in any system of notation. Then it goes on (subdivision G): To make, sell, distribute or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of the work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work. Mr. WEBB. Before you leave that, do you not think that section G prohibits the sale of the instrument itself, rather than the reproduction of the music or the work? You are a lawyer. Mr. O'CONNELL. It would seem that it prohibits both, sir. Mr. BURKAN. We will submit an amendment to cover that. Mr. WEBB. It seems that that is a prohibition of the sale of any instrument. Mr. CURRIER. Clearly so. Mr. O'CONNELL. I have not seen the proposed amendment, because it was only handed in this morning after we got here. Turning to section 6, it says--and this is very important: That additions to copyrighted works and alterations, revisions, abridgments, dramatizations, translations, compilations, arrangements, or other versions of works, whether copyrighted or in the public domain, shall be regarded as new works, subject to copyright under the provisions of this act. Now, if you please, turn to section 18, subdivision B. It gives a copyright for fifty years after the first publication, and you will find at line 13 of the House bill, which I hold, that it gives a copyright for fifty years after the date of the first publication, in "any arrangement or reproduction in some new form of a musical composition." Then, you will find further down, in subsection C of that section 18, where it gives a copyright for the lifetime of the author and for fifty years afterwards in the case of an original musical composition, thus making it clear, from a reading of all those sections together, that first, where there is an original composition, say of Mr. Sousa or Mr. Herbert, which has been already copyrighted under the present act, under the provisions of this new act they have the right to prohibit the cutting of music rolls for the period of fifty years from those original compositions which they have already copyrighted; and, secondly, the most dangerous provision of the bill, that any music-cutting establishment--this monopoly, for instance--can take any old work, that has never been cut to this day into a music roll, which is in the public domain--one of Beethoven's sonatas, or the Star Spangled Banner, if that has not already been done--and they can cut a music roll and can copyright that, and they can get the exclusive right because of such cutting, notwithstanding that everybody is free to perform that particular piece in every other way. This bill gives the right to cut it into a music roll and get a copyright for fifty years after the first publication in the form of a perforated music sheet. That, I submit, Mr. Chairman and gentlemen, is a very iniquitous provision--very iniquitous. Mr. CHANEY. That starts in on page 4 and concludes on page 14? Mr. O'CONNELL. Yes. Mr. CHANEY. I think you are right about that. Mr. O'CONNELL. Thank you for agreeing with me. Then, there is another provision of section 19, which was covered yesterday by Mr. Ogilvie, in regard to book publishing, to which I have the same objection, and that is that where the author dies his family can not get the continued copyright for fifty years unless the assignee or licensee shall join in the application for such renewal and extension. Some provision ought to be made there so that in case the licensee or assignee refuses, at the instance of the widow or orphans of the author, to apply for an extension of the contract, the widow and orphans shall have the right to proceed independently of the assignee or licensee. As Mr. Ogilvie very well said, where the publisher has the right to reproduce on the payment of a royalty of 20 per cent he may very well say now, after the author dies, "I will not apply with you for this extension unless you permit me to pay you merely a royalty of 2 per cent." I simply point that out as one of the injustices of the act, as showing that only special interests apparently seem to have been considered in the framing of the bill. There is another question there, which will probably be covered by Mr. Walker in what he has to say to the committee afterwards, and that is as to the constitutionality of these provisions as a whole. I will merely point out what the Constitution provides in that respect. Article 1, section 8, subdivision 8, gives the right to Congress-- to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries. It has been held, in the case of the Lithograph Company v. Sarony, 111 U.S., 53, at page 58, that the only thing which appears to infringe upon copyrighted matter would be-- some visible form of writing, printing, engraving, etching, by which the ideas in the mind of the author are given visible expression. Mr. Sousa pointed out the ordinary system of notation with the various notes, and he also held up to you a music roll with the perforations, slits, dots, and dashes, and he claimed, apparently, that those slits, dots, and dashes are visible and can be read. I doubt very much if Mr. Sousa can tell one note from another there. Mr. CURRIER. I could tell the notes on that sheet just as well as I could on the other. [Laughter.] Mr. O'CONNELL. All I have to say then is that apparently music is not one of your many accomplishments. [Laughter.] Some of us can not read Sanskrit, nor Hebrew, nor Greek, perhaps, but that does not mean that we can not read at all, nor that such languages can not be read. There are many of us that do understand the ordinary diatonic notation of music, and many of us that do not. The fact that the vast majority of people can not read music does not prevent it from being a writing. The CHAIRMAN. Do you contend that it is beyond the power of Congress to make that roll copyrightable? Mr. O'CONNELL. My contention is, sir, that it is absolutely beyond the power of Congress to make that roll copyrightable. Senator SMOOT. Are there people that can read that roll--that is, the same as Mr. Sousa can pick up that piece of music there [indicating] and read that music? In other words, every slit or cut or dash in that paper represents a note, does it not, just the same as the notes are differently represented upon the paper that Mr. Sousa exhibited--or a musical tone is represented? Mr. O'CONNELL. It may be, but I do not think that there is a person, firm, or corporation in the United States or elsewhere to-day that can take that music roll and tell you what particular note any particular slit or dot or dash represents. If I am wrong, I want to be corrected. Mr. CHANEY. It is a notation of tone, then? Mr. O'CONNELL. It is simply by relation to what is called the tracker board. This roll goes over a tracker board in which there are little holes. Each hole in the tracker board is connected with a little tube which carries the air through a bellows and to a device which strikes a hammer. As this roll goes over the tracker board of the instrument, when it strikes a hole corresponding to any particular one of those slits there is an ingress of air, because there is a vacuum underneath. That little tube is connected with a hammer which strikes the note A, B, C, and so forth, whatever it might be. They are differently arranged in different rolls. The roll that will play in one instrument will not play in another; and you can see, gentlemen, that there is a different-sized roll, different-sized slits [exhibiting sample rolls] notwithstanding that they are both the same piece of music, composed by Mr. Sousa. [Laughter.] Senator SMOOT. In looking at those two rolls, there is no question but what anybody can tell that they are the same piece of music. Mr. O'CONNELL. But look at the difference across---- Senator SMOOT. That is only as to the size. You can take that same sheet of music that Mr. Sousa exhibited and have it four inches wide or you can have it eight inches wide, and it would be just the same music. Mr. O'CONNELL. But can anybody tell me, if you please, sir, or will anybody tell us, what those notes are? Senator SMOOT. That is the question that I asked you. Mr. BOWKER. I can, by taking a scale corresponding to that instrument and putting it on the paper. By doing that you can tell what the note is. Mr. WALKER. I was counsel in the Apollo case, and the question whether those rolls could be read by inspection was litigated at great expense in that case, and the circuit court of appeals for the second circuit decided, a week ago last Friday, that the overwhelming preponderance of the evidence was that they could not be read. Mr. WEBB. And further, that that is not a copy of the music from which it is taken. Mr. WALKER. They so decided. Judge Colt decided in 1888 that these perforated rolls are not copies of music filed in the office of the Librarian of Congress. That decision was always acquiesced in until the Æolian Company invented its ingenious scheme to monopolize the business of mechanical musical instruments; and in pursuance of that event they endeavored to secure from the circuit court of appeals in the southern district of New York a reversal of Judge Colt's decision. After years of litigation the circuit court of appeals for the second circuit affirmed Judge Colt's decision, and held that these do not infringe the copyright on the sheet music, and, as the foundation for that holding, they stated the overwhelming preponderance of evidence was that they could not be read by anybody; and they stated for that reason that they were not copies, and were not infringements. Mr. O'CONNELL. I have been informed, while Mr. Walker was speaking, in response to what Mr. Bowker said, that in this White-Smith suit the complainants tried in every possible way to prove the truth of the assertion which Mr. Bowker has just made, and that they utterly and totally failed to sustain that assertion that those sheets could be read, even with the use of any kind of a scale. That has just been stated to me by a gentleman who is interested. If you please, Mr. Chairman, the portion of the decision relating to that particular point has been handed to me, and here it is---- Mr. CHANEY. We have that decision. Mr. O'CONNELL. I want to call attention briefly to just this point in it: It is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if it were true, would establish merely a theory of possibility of use as distinguished from an actual use. In deciding those cases, courts and committees of Congress do not act on possibilities. Here is another method of reproduction [exhibiting disk] of the same march of Mr. Sousa's. It is for use in a music box. I do not know what the name of the music box is. The disk was only handed to me this morning. That shows another method of reproducing, and I do not suppose that even Mr. Bowker, with the aid of a scale, can read the notes on it. [Laughter.] Again, there is still another one here [exhibiting cylinder], which has been handed to me by Mr. Walker, a phonograph record, which he unfortunately says he broke, and which contains the same march by Mr. Sousa. And I do not believe that even Mr. Bowker, with the aid of any kind of a scale, can read that. Mr. BOWKER. My name has been mentioned, and may I say that the character of the phonograph record which uses the very word "graph," meaning "writing," represents the earliest form of writing, that of incised character writing. Mr. CHANEY. Of the time of Rameses. Mr. DAVIS. May I state that it remained for the inventor to first devise that scale to which that perforated music was made, and, second, to devise a machine which would interpret that music to Mr. Currier, or all of the other members of the public, as a medium by which any music could be read. That is the only practicable way of reading it, and that was left to the inventor. A mere reversal of that scale, to read backwards, would not be requisite. Mr. SOUSA. I would like to ask the gentleman a question. What value would these various records have if my march was not on them--if I had never written that march? Mr. O'CONNELL. I will say to Mr. Sousa with perfect frankness that the only object of that particular record is to produce his march. [Laughter.] Mr. SOUSA. Without my consent. Mr. O'CONNELL. I shall not try to hedge. I merely state facts. Mr. CHANEY. Do you think you should do that without compensating him for the genius he displayed? Mr. O'CONNELL. Very early in my remarks I disavowed any such intention. I did say that we were in the position--the independent manufacturers that I represent--where we could be forced to the wall because of these contracts, and that the resulting benefits to Mr. Sousa and Mr. Herbert, if Congress had power to and did pass such an act, would be vastly offset by the great detriment to our manufacturing interests and to the public. While I am on that point I would ask leave to digress and to submit also a copy of a letter from the Æolian Company to the Chicago Music Company, dated the 5th of May, 1902, and offer it in evidence here. (The letter referred to is as follows:) THE ÆOLIAN COMPANY, _New York, May 5, 1902_. The CHICAGO MUSIC COMPANY, _Music Publishers, Chicago, Ill_. DEAR SIRS: Pursuant to the provision of the agreement granting us the exclusive right under your United States copyrights for all perforated music sheets intended for use in controlling automatic musical instruments and machines for playing musical instruments, we hereby notify you that a number of copyright owners satisfactory to us have made with us agreements similar to our agreement with you. From this date, therefore, our agreement goes into effect. Looking forward to profitable and pleasant business relations, we remain, Yours, truly, THE ÆOLIAN COMPANY, E. R. PERKINS, _General Manager_. I now ask you, Mr. Chairman and gentlemen, to turn to section 15 of the bill, found at page 11 of the House bill, which would seem to me to be rather ambiguous. It provides that the owner of the copyright may commence proceedings and so forth within thirty days, but that he has a whole year within which to complete his copyright. Now, that means that he does not have to put his mark on it, I suppose, and perhaps an independent manufacturer may go ahead for a year, or, rather, for three hundred and sixty-four days, believing that he has the right to do so, and then, on the three hundred and sixty-fifth day the owner of the copyright completes his record, and he is promptly sued for all that he has done for the past year. True, the act says that in such case no action shall be brought for infringement of the copyright until the requirements have been fully complied with; but that merely says that he can not commence the action until he has complied with the act. It does not say that after he has finally complied he can not recover for the infringement during the full year within which he practically permitted his copyright to lapse. Mr. PUTNAM. Do you understand that he is not obliged to give notice during the intervening period? Mr. O'CONNELL. I am speaking of the one-year provision. Mr. PUTNAM. The works that are issued carry a notice, do they not? You did not understand that it was supposed that the works issued were to be exempt from the notice upon them of copyright, did you? Mr. O'CONNELL. I would like to know what is the reason for the provision in question, then. If there is no reason for it, it should not be there. Mr. CHANEY. Then you would strike out all of section 15? Mr. O'CONNELL. Why not leave the act as it is, and provide that everything must be done before publication, instead of giving them a year in which they might possibly deceive the public? Mr. PUTNAM. Mr. O'Connell has asked what is the reason for this section. I will ask you, Mr. O'Connell, if you have observed that the section reads, this section 15, that "if, by reason of any error or omission the requirements prescribed above in section 11 have not been complied with," etc. Now, notice that section 11 does not refer to the requirement of notice upon the published works, but of the requirement of deposit and registration in the copyright office. Mr. O'CONNELL. In answer to that I will say that the Patent Committees of both Houses are probably aware of the fact that there have been means found and adopted for many, many years to keep applications for patents pending in the Patent Office and still not have them outlawed. It would be the easiest thing in the world for an applicant for a copyright to commit irregularities for that very purpose. Another point: In section 18, subdivision C, there may be a copyright obtained under an assumed name. I confess that I do not see the reason for that. Mr. CHANEY. Mark Twain, for instance, instead of Samuel L. Clemens? Is there objection to that? Mr. O'CONNELL. I do not see the reason for it, while it might be all right in the particular instance which you suggest. Of course if it is limited to giving a copyright to a man under his pen name, that might be all right. Mr. CHANEY. Is not that the purpose of it? Mr. O'CONNELL. It may be the particular purpose of it, but I think the section is so broad that it might include almost anything from Genesis to Revelations. Mr. PUTNAM. Where is that in section 18, that you may copyright under an assumed name? Will you state where you find that in that section? Mr. O'CONNELL. On page 15: The copyright in a work published anonymously or under an assumed name shall subsist for the same period as if the work had been produced bearing the author's true name. It is at the end of section 18. That would seem to me to give the right to copyright under an assumed name. Mr. PUTNAM. Oh, yes. Mr. O'CONNELL. As to the penalties, Mr. Chairman, I think there never has been an act passed where the penalties have been so severe. I will ask you, Mr. Chairman and gentlemen, to turn to section 23, on page 17, of the bill and I will point out as far as I may where it differs from the old act. In the first place, subdivision A gives the right to an injunction restraining such infringement. As to the damages, in addition to the injunction, it gives the copyright proprietor such damages as he may have suffered. In addition to the injunction and the damages, it gives him the right to all the profits which the infringer may have made from such infringement. And now comes the extraordinary provision. It says: "And in proving profits the plaintiff shall be required to prove sales only"--gross sales, I suppose it meant thereby--"and defendant shall be required to prove every element of cost which he claims." That provision is revolutionary. In every case, both at law and in equity, where the plaintiff has to prove either damages or loss of profits, it is absolutely essential that he prove the actual damages or the actual profits. By that is not meant gross profits, but the net profits which the infringer has made. Under this act all that the plaintiff is required to do would be to prove that the alleged infringer sold so many goods for such and such a price, and the onus or burden of proof is entirely on the defendant to establish all the items of the expense incurred in producing the infringing article. The old act has no such provision. Next it says that in lieu of damages and profits the court---- Mr. CHANEY. It says "actual damages." Mr. O'CONNELL. It says that the court, instead of actual damages and profits, may award an arbitrary sum, not less than $250 nor more than $5,000, and it says that that sum shall be made up in this way: For every copy of a music roll or a phonograph record, $10. The old act provided for practically the same kind of a record, the same genesis of things, $1. Why, Mr. Chairman and gentlemen, should you impose a penalty of $10? The old act has it that paintings, statues, or sculptures should pay a penalty of $10. It also has it that prints, etc., should pay $1. Why should you put a music roll into the category of paintings, statues, or sculptures at $10, rather than into the other category? Mr. BURKAN. We will submit an amendment making that $1. The music publishers will submit an amendment making that $1. Mr. O'CONNELL. I thank the music publishers for considering us, even in the very slightest degree. Five thousand dollars would seem to be the limit in any one suit, but suppose the complainant brings 20 or 50 different suits in different jurisdictions, which he would be permitted to do under other sections of the act, which I will point out presently. Subdivision third of that section 23, says: "In the case of a dramatic or musical composition not less than $100 for the first and not less than $50 for every subsequent infringing performance." I submit, Mr. Chairman and gentlemen, that we are also liable to that penalty as well as the $10 a roll, because these very astute gentlemen who are back of this bill, on the very first infringement will claim that any performance on an automatic piano player whereby Mr. Sousa's march or Mr. Herbert's composition is played on a pianola or one of the independent pianos, is a musical performance, and that for the first performance, in addition to the $10 a roll, we are liable to be fined $100, and for each subsequent performance $50. I think that this section, if the other provisions of the bill are to remain in, should be amended so as to say that this shall not include a performance on a perforated music roll or on phonograph or music machine disks. Some other extraordinary provisions of the penalties are, first, this subdivision C of the fourth paragraph of section 23 provides that the infringer is-- to deliver up on oath to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all goods alleged to infringe a copyright. That is an extraordinary provision. They get an injunction pendente lite, and not alone that, but we have to deliver up to them everything pendente lite. The injunction is not good enough, and we have to give the goods to them. Next, it says (subsection D): To deliver up, on oath, for destruction all the infringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies. It may be proper, as in the old act, to direct the infringer to deliver up the copies or the plates from which they are made, but it is absolutely revolutionary to direct that the machinery be delivered up, because that machinery may be useful for perfectly legitimate purposes, and yet it must be delivered up for destruction. It also provides that all those results can be obtained in a single action. As to the jurisdiction of courts in suits of this kind, here is the provision of the bill: SEC. 32. That all actions arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands. Actions arising under this act may be instituted in the district of which the defendant is an inhabitant, or in the district where the violation of any provision of this act has occurred. Let us assume that my client, a manufacturer of an automatic piano player in the city of New York, ships one of these with a box of music rolls to Manila or some inland town in the Philippines. If it is an infringement, the infringement has occurred in the Philippines, because the music roll is not published until it is taken out of the box. According to this act they have a right to commence an action in the Philippine Islands. According to another subsection of section 32 they can send the process to the marshal in the southern district of New York, and that marshal serves the process, and thereupon the court of first instance in the Philippine Islands has jurisdiction, and the defendant has to go to the Philippine Islands to defend the case. And a still greater objection is that the complainant in such an action may commence a hundred concurrent suits and distribute them in every court in the United States, the Territories, Porto Rico, and the Philippines. Mr. CHANEY. The idea, of course, is to put it within the reach of these people who are injured. Mr. O'CONNELL. Does that put it within the reach of the New York corporation, or is it part of their proper proceedings to get damages or redress that they should go to the Philippine Islands to sue my clients who are domiciled in New York, where the Æolian Company is domiciled, and make us go over there to defend the suit? Mr. CHANEY. No; but suppose the person injured lives in the Philippine Islands? Mr. O'CONNELL. If that is the conclusion, if you simply want the plaintiff to sue in the jurisdiction where either the real plaintiff or the defendant is an inhabitant, then that raises another question. Mr. CHANEY. Evidently that is what has been intended. There was no purpose of anybody to take all the fellows out of New York, because that is a splendid place to live, you know. [Laughter.] Mr. O'CONNELL. But we have to come to the fountainhead occasionally. [Laughter.] Mr. WEBB. The act distinctly says "In the district where any violation of this act has occurred." Mr. O'CONNELL. Under the old provision with regard to infringement, you could only sue a defendant where you found him, in the district where he resided. That is the provision in relation to patents, and the provision of the bill as the old act stands. Why should this new provision be inserted? Perhaps the members of this committee will be able to determine. Mr. CHANEY. I take it that that was for the purpose of making it convenient to the person injured, or the parties injured. Mr. O'CONNELL. That might be all right, if the party injured was a resident of the Philippines. Mr. CHANEY. Yes. Mr. O'CONNELL. Or of the Sandwich Islands, or Porto Rico? Mr. CHANEY. That is the idea. Mr. O'CONNELL. I think you will find that there are none of the owners of any of these copyrights living in any of those districts; none of them. I do not suppose that Mr. Sousa intends to change his residence just at present, or Mr. Herbert either. I think they will be found doing business here right along. [Laughter.] Section 34 provides-- That no action shall be maintained under the provisions of this act unless the same is commenced within three years after the cause of action arose. Why not leave that the old two-year limit? What is the necessity for three years? There is no reason for that. Then, look at the provision in section 35. Mr. CHANEY. Is there a disadvantage in putting it three years? Mr. O'CONNELL. Why should it be extended to three years? Mr. PUTNAM. Is it not true that the present limitation is only for actions for penalties or forfeitures, whereas this is a general limitation on all actions, including civil actions for infringement, so that although it enlarges by one year the criminal action, it reduces the term that the complainant at present has in his civil action? This now applies to all actions. Did you notice that, Mr. O'Connell? Mr. O'CONNELL. I think that the present provision relating to kindred actions of this kind is a two-year statute of limitations, and it has been found ample for a great many years, for all purposes, to protect patentees, inventors, and everybody else. Look at section 35: That in all recoveries under this act full costs shall be allowed. That is to say, where the complainant recovers he must get from the defendant, and the court must allow the complainant, full costs. Let us assume a case where the defendant gets the bill dismissed. That is not a recovery. He does not get a recovery, but there is no provision giving the defendant in that case full costs. Oh, no. They are only careful of the complainant where he recovers; but where his action fails there is no provision giving the defendant full costs. Mr. WEBB. You would strike out "recoveries" and insert "suits?" Mr. O'CONNELL. If you want to do it that way. You will not be then giving one side any more than the other. But I think that provision should not be in there at all. I think the court should have full discretion in the award of costs, these actions being mostly equitable actions, and the general rule being that in a court of equity the awarding or denial of costs is in the discretion of the court. I see no reason why the jurisdiction of the courts should be limited by a provision of this kind. I think it should be left to the courts to say in all cases whether costs should be awarded or withheld, and how much costs should be awarded; although I think there should be a provision to the effect that in the case of an action wilfully brought, and where there is no recovery--brought simply for the purpose of intimidation, where there is no reasonable ground for recovery, simply to get hold of the man's business and keep him from doing business--that there should be some provision in there giving a penalty against the complainant in such an action as that. I have only thought of that at this moment, but I think it is a good suggestion to make to the committee. Gentlemen, I thank you for the time you have given me, and I have no more to say on the subject. I again ask, however, as I did at the outset, that on these contracts and on the question of the monopoly in the hands of this concern and its associates, the committee should take proofs such as may be necessary to determine what the situation is. All I ask on behalf of the independent manufacturers of automatic musical instruments in the United States is that we should have a fair show, that our business should have the same protection as any other business has, and that you gentlemen may not do anything which will help this great centralization and put it in the power or a monopoly to ruin our business. Mr. PUTNAM. I understand that Mr. H. N. LOW is by agreement to speak next. STATEMENT OF H. N. LOW, ESQ., OF WASHINGTON, D.C. Mr. LOW. I appear for the manufacturers of the music rolls and of instruments operated by such rolls. Mr. CURRIER. I understood that the music-roll people had had over two hours now. Mr. LOW. Pardon me. My remarks will be very brief. Mr. CURRIER. The talking-machine people are to have thirty minutes, and the committee can not sit here a very great while. Mr. LOW. My suggestions will be very brief. The ACTING CHAIRMAN. We have to adjourn in a little while, and the gentleman who preceded you exceeded his time. Mr. LOW. Then to merely supplement the remarks of the gentleman who has preceded me, I ask leave of the committee to submit two more contracts, similar to the ones that he has submitted, with the Æolian Company in the carrying out of the agreement that we allege. My information is that that agreement now embraces practically the whole music-publishing trade, and those outside of that agreement are very small manufacturers, and the trust or combination is just about complete and ready for this legislation. I submit that this legislation is most dangerous, and that this pretended revision of the copyright law is a cloak for something that is very wrong. [The contracts referred to by Mr. LOW are as follows:] Memorandum of agreement made and entered into this 30th day of April, 1902, by and between Chicago Music Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the Æolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York, in the State of New York, party of the second part, hereinafter called the Æolian Company, witnesseth: That whereas the publisher is the proprietor of certain copyrights for musical compositions and the owner of rights in copyrights for other musical compositions; and Whereas the Æolian Company is engaged in the business of manufacturing and selling automatic musical instruments controlled by perforated music sheets, and in manufacturing and selling machines for playing keyboard musical instruments, which machines are controlled by perforated music sheets, and in manufacturing and selling perforated music sheets for such automatic musical instruments and machines; and Whereas the Æolian Company is desirous of acquiring the exclusive right for such perforated music sheets in and to all the copyrighted musical compositions of which the publisher is the proprietor, or as to which he is the owner of any rights, and of all those other musical compositions which may hereafter be protected by copyright, and the copyrights for which or rights in which may be acquired by him; Now, therefore, the publisher, for and in consideration of the premises, and of the sum of $1, lawful money of the United States, to him paid by the Æolian Company, receipt of which is hereby acknowledged, and for and in consideration of the true and faithful performance by the Æolian Company of its covenants hereinafter made, does hereby sell, assign, transfer, and set over unto the Æolian Company the exclusive right for all perforated music sheets of the kinds aforesaid in and to all the copyrighted musical compositions of which the publisher is the proprietor, or in the case in which he is the owner of any less rights, to the extent of said rights, and does hereby covenant and agree with the Æolian Company to give and secure to it the exclusive right in like manner for all perforated music sheets of the kinds aforesaid in and to all those other musical compositions which may hereafter be protected by copyright, and the copyrights or rights in which may be acquired by the publisher, except that if the Æolian Company do not accept any price offered them within three months after said offer, then the publisher may be at liberty to dispose of the same otherwise. And the publisher, for the consideration aforesaid, hereby covenants and agrees, so far as it may be reasonably in his power, to protect the Æolian Company against any claim of any third person in respect to any and all copyrighted musical compositions which may be involved in this agreement, and the copyright of which may be owned by the publisher. And the Æolian Company, for and in consideration of the premises, hereby agrees that it will keep correct and true books of account in which it will set down or cause to be set down entries of all perforated music sheets made by it for playing the copyrighted musical compositions owned or controlled by the publisher; that it will on the 20th day of each and every January and July, during the continuance of the manufacture and sale by it of the perforated music sheets for playing such musical compositions, render unto the publisher a correct and true statement of the number, names, and other designations of such perforated music sheets sold by it during the six preceding calendar months, and that at the time of rendering each and every such statement it will well and truly pay unto the publisher a license fee or royalty of 10 per cent of the list prices made by the United States publishers of the printed scores or copies of such musical compositions, but never more than 50 cents for any one of such perforated music sheets. And the parties hereto mutually covenant and agree that nothing herein contained is to obligate the Æolian Company to pay any license fee or royalty upon such perforated music sheets as shall be made by it in the United States and sold or shipped to any other country, unless it shall have been decided by a court of competent jurisdiction of such other country that the copyright laws of that country shall be applicable to perforated music sheets of the kinds herein mentioned. And the parties hereto mutually agree and covenant that the term "perforated music sheets" is not to be construed as covering the controllers of those musical instruments which are generally known as phonographs, or music boxes, or hand organs. Anything herein to the contrary notwithstanding, at the expiration of thirty-five years from the payment of the first license fee hereinbefore provided, the Æolian Company shall not be entitled to licenses under the copyrights thereafter acquired by the publisher, but all licenses existing under copyrights theretofore acquired by him shall remain in force until the expiration of the terms of the copyrights under the terms hereinbefore provided. During the existence of this contract, after the payment of the license fee hereunder, the Æolian Company obligates itself to prosecute diligently, at its own expense and by its own counsel, in the name of the proprietors of the copyright, all infringers of the rights granted to it, the Æolian Company. And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and inure to the successors, executors, administrators, and personal representatives of both the parties hereto. In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized. CHICAGO MUSIC COMPANY, [SEAL.] PLATT P. GIBBS. THE ÆOLIAN COMPANY. [SEAL.] By E. S. VOTEY, _Director_. Signature of publisher witnessed by-- J. F. BOWERS, PAULINE FLAHERTY. Memorandum of agreement made and entered into this 30th day of April, 1902, by and between Chicago Music Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the Æolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York, in the State of New York, party of the second part, hereinafter called the Æolian Company, witnesseth: That whereas the parties hereto have, of even date herewith, entered into an agreement whereby the Æolian Company is to have the exclusive right for all perforated music sheets intended for use in controlling automatic musical instruments or machines for playing musical instruments, in and to the copyrighted musical compositions of which the publisher is the proprietor or as to which he is the owner of any rights, and in and to all those other musical compositions which may hereafter be protected by copyright and the copyrights or rights in which may be acquired by him; and Whereas the parties hereto are desirous of entering into a further agreement with reference to the matters and things expressed in the above-mentioned agreement of even date herewith; Now, therefore, the publisher, for and in consideration of the premises and the sum of $1, lawful money of the United States, to him by the Æolian Company in hand paid, receipt whereof is hereby acknowledged, does hereby covenant and agree that no charge shall be exacted from or be due from the Æolian Company for the manufacture or sale by it, or any of its customers, of any perforated music sheets of either of the kinds aforesaid, for playing any of the copyrighted musical compositions which are owned or controlled, or which shall hereafter be owned or controlled in whole or in part by the publisher, until a decision of the court of last resort in a suit which is to be instituted against some manufacturer or user, other than the Æolian Company, of such perforated music sheets for the purpose of testing the applicability of the United States copyright laws to such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid. And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid, and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such case and from that time forward the Æolian Company will keep books of account, render statements, and pay royalties, as provided by the aforesaid agreement of even date herewith, but shall be free from obligation to make payments for the past. And it is mutually understood and agreed by the parties hereto that neither party hereto is to be obligated in any way by any of the provisions of this agreement, or of the aforesaid agreement of even date herewith, until the Æolian Company shall notify the publisher that a number of copyright owners, satisfactory to the Æolian Company, have made similar agreements with said company. And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and inure to the successors, executors, administrators, and personal representatives of both the parties hereto. In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized. CHICAGO MUSIC CO., [SEAL.] PLATT P. GIBBS, _President_. THE ÆOLIAN CO. [SEAL.] By E. S. VOTEY, _Director_. Witnessed by-- PAULINE FLAHERTY. J. F. BOWERS. THE ÆOLIAN COMPANY, _New York, May 5, 1902._ The CHICAGO MUSIC COMPANY, _Music Publishers, Chicago, Ill._ DEAR SIRS: Pursuant to the provision of the agreement granting us the exclusive right under your United States copyrights for all perforated music sheets intended for use in controlling automatic musical instruments and machines for playing musical instruments, we hereby notify you that a number of copyright owners satisfactory to us have made with us agreements similar to our agreement with you. From this date, therefore, our agreement goes into effect. Looking forward to profitable and pleasant business relations, we remain, Yours, truly, THE ÆOLIAN COMPANY, E. R. PERKINS, _General Manager_. Mr. CHANEY. I would like to have this gentleman who has just spoken to us (Mr. Low) submit a typewritten statement relating to the various sections in the bill to which he objects, and setting out his objections. The ACTING CHAIRMAN. Without objection that privilege will be accorded to him. WASHINGTON, D.C., _June, 12, 1906_. _To the Committees on Patents of the United States Senate and House of Representatives._ GENTLEMEN: I file herewith in typewriting specific suggestions for the amendment of the said bill, in pursuance of the resolution of the joint committee, passed on the 8th day of June, 1906; these remarks or this statement to follow in the record the exhibit contracts which I presented to your committees at that time. Very respectfully, H. N. LOW. SUGGESTIONS AS TO THE AMENDMENT OF THE PENDING COPYRIGHT BILL. _To the Committees on Patents of United States Senate and House of Representatives._ GENTLEMEN: If the allegations which have been made before the committee, and not denied, and which can not be successfully denied, that there has been effected a combination in the nature of a trust to secure practically all of the commercial business of this country in the manufacture, sale, and use of mechanical records or controllers for the production of music, etc., by mechanical means are true, then a very serious situation confronts you. The agencies relied upon to make said combination of publishers and manufacturers successful are-- 1. The contracts which have heretofore been entered into in anticipation of this legislation, four of which contracts have been filed in connection with the remarks of Mr. O'Connell and of Mr. Low. 2. New legislation of the character proposed by this copyright bill and especially by paragraph (g) of section 1. In one of the contracts referred to, dated April 30, 1902, between the Chicago Music Company and the Æolian Company, it is provided-- "During the existence of this contract, after the payment of the license fee thereunder, the Æolian Company obligates itself to prosecute diligently, at its own expense and by its own counsel, in the name of the proprietors of the copyright, all infringers of the rights granted to it, the Æolian Company." In the other contract of the same date and between the same parties, a facsimile of which has been filed with your committees, it is provided-- "That no charge shall be exacted from or be due from the Æolian Company * * * until a decision of the court of last resort in a suit which is to be instituted against some manufacturer or user other than the Æolian Company of such perforated music sheets for the purpose of testing the applicability of the United States copyright laws to perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid. And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit," etc. Such test suit was instituted entitled The White-Smith Music Publishing Company _v._ The Apollo Company by and at the expense of the Æolian Company, the real complainant, and decided against the Æolian Company, the holding of the court of last resort, the United States circuit court of appeals for the second circuit, being that such perforated music sheets were not infringements of the copyrights of the nominal complainant. Although defeated so far, it is not reasonable to suppose that the combination of the Æolian Company and its "number of copyright owners satisfactory" to that company would rest without further effort to make effective for profit the agreement into which they had entered. The only remaining means was by new legislation, and I submit that the aim and end of the pending bill is to be a substitute for that favorable decision of a court of last resort which the Æolian Company failed after strenuous efforts to obtain. Certain provisions of the bill here and there--for example, the lengthening of the copyright term--have attracted to the support of the bill various interests who are totally indifferent one way or the other to the question of perforated music sheets or phonographic records, but I submit that these other provisions are more or less unimportant, do not improve the present law, and most of them would never have been heard of except for the desire of the special interests above referred to to obtain new legislation as to the mechanical producers of sound. In the spring of 1904 attempt was made by this same combination to obtain the legislation desired by the insertion of a specific provision in the law to substantially this effect: "_Provided_, That in the case of a musical composition authors or their assigns shall have the exclusive right to use said copyright musical compositions in the form of perforated rolls for playing attachments, copyright on which music rolls may be obtained by said author or his assigns in the same manner as now provided by law for copyright on musical compositions." I have not been able to discover that this proposed amendment of the law was ever introduced in the form of a bill into either House of Congress. It may have been. But I am informed that it was formulated for the purpose of introduction as a bill in Congress in the terms above set forth. It was found impracticable to obtain the new legislation in such specific and undisguised form, and resort is now had to a pretended revision or codification of the entire copyright law, for which there is not the slightest necessity and which will inevitably give rise to a great amount of litigation before the meaning and effect of the words used in the new law can be legally understood, for the sole purpose that the Æolian Company may have with its contracting publishers and copyright owners "pleasant and profitable business relations," as expressed in the notice from the Æolian Company to the contracting publishers, dated May 5, 1902 (a facsimile of which I have filed with your committees). This notice states "a number a copyright owners satisfactory to us have made with us agreements similar to our agreement with you." Although the matters above referred to have been opened up before your committee in the remarks of Mr. O'Connell, I have felt it my duty to give my view of the matter in brief form, both in confirmation of what Mr. O'Connell has said, and for the purpose of indicating that the bill itself and proposed amendments thereto must be scrutinized by your committees with the greatest care before it is reported. As to amendments of the bill, I see no alternative to the striking out of paragraph (g) of section 1. If the combine exists as is alleged it is obvious that the patents, inventions, machinery, and plants of all those manufacturers of mechanical records who are not inside of the combine, that is to say, of all the manufacturers of perforated music rolls excepting the Æolian Company, and all the manufacturers of talking machines and records excepting the two companies who are alleged to be members of another combination or trust for the exclusive manufacture of such machines, and of all without exception of the manufacturers and users and sellers of pianos and organs which are operated by perforated music sheets, will be rendered practically useless, the owners of such manufactories will be put out of business, and their workmen will have their field of labor and bread taken away. If this will be the result of the bill, and especially of the paragraph section 1 (g), the bill is most unjust and class legislation of the worst type. And that is just what the bill is intended to be, but I am thankful that its object can not be concealed. It is no answer to the above objection to say that the bill provides only for the future. So do the contracts between the Æolian Company and its "satisfactory number" of copyright owners. The said contracts are unlimited as to time, having been signed by the great bulk of the trade (meaning thereby almost all of the great music publishers of the country), they leave outside of the combination only small publishers, and the contracts provide as follows: "Now, therefore, the publisher, for and in consideration of the premises, and of the sum of one dollar, lawful money of the United States, to him paid by the Æolian Company, receipt of which is hereby acknowledged, and for and in consideration of the true and faithful performance by the Æolian Company of its covenants hereinafter made, does hereby sell, assign, transfer, and set over unto the Æolian Company the exclusive right for all perforated music sheets of the kinds aforesaid in and to all the copyrighted compositions of which the publisher is the proprietor, or in the case in which he is the owner of any less rights, to the extent of said rights, and does hereby covenant and agree with the Æolian Company to give and secure to it the exclusive right in like manner for all perforated music sheets of the kinds aforesaid in and to all those other musical compositions which may hereafter be protected by copyright, and the copyrights or rights in which may be acquired by the publisher, except that if the Æolian Company do not accept any piece offered them within three months after said offer then the publisher may be at liberty to dispose of the same otherwise." From the foregoing we arrive at this conclusion, and there is no escape from it, that there is in existence a combination whose design and effect upon very important business and laboring interests of this country will be injurious and unlawful if the bill should be passed as proposed, which combination is of unlimited duration as to time, and which combination will control, for the purpose of producing perforated music sheets, all the copyrights or rights of production hereafter for such unlimited duration of time which may be acquired by the great bulk of the trade (music publishers) of this country. Your committees will see, therefore, that the bill provides for the profitable future of the members of the combination without limit as to time. The result of this will be threefold: 1. The Æolian Company will secure for itself practically the entire business of the United States in the manufacture of perforated music sheets, and will be in a position to dictate the prices for such sheets to the trade, including the manufacturers and sellers of pianos and organs operated by said sheets as well as the sellers of the sheets alone, and to raise the price to the public generally for such sheets. 2. The publishers who have contracted with the Æolian Company to give the latter all the rights which the publishers have or may have in copyrighted music will receive from the Æolian Company certain royalties, which royalties will either be clear profit to the publishers or will be less than any extra royalties which the publishers will pay to the composers. It is practically certain that in the long run the composers will get no more royalties than they now receive, for the composer, for his own advantage in obtaining a large sale of his works, must go to one of the large publishers of music, and will be compelled by such publisher to accept in full payment of his copyright just such a royalty as he now gets under existing law, and all the extra profits which can be mulcted from the public under section 1 (g) of the bill will be divided between the members of the combination. 3. The public will foot all the bills without any more advantage to themselves than they have under existing law. The assertion made in support of the bill, that it relates only to the future, is completely met with the reply that the bill does not provide for the future of anyone who is outside of the combination. If the existing copyright law is bad or insufficient and anything like a revision of or a codification of the copyright statutes in a new law must be made in the interests of justice, let it be done. But let care be taken that you do not do injustice. If a new copyright law is to be enacted, and the pending bill is to be the foundation of such a law, the practical question is, how is it to be amended in order that it may not cause the evils above referred to. Mr. Putnam in his introductory remarks indicated that your committees would find evidences of "selfishness" in the bill. He is undoubtedly right. It is, however, much more far reaching in this respect than Mr. Putnam had any idea of. It is extraordinary that the conference which advised Mr. Putnam adopted such radical legislation as is proposed in section 1 (g) without inviting the attendance at the conference of a single person interested adversely to this legislation. In fact it would appear that such persons were purposely kept in ignorance of what the conference was doing. But I do not think that the selfishness of the interests which are opposed to the said new legislation, and who are now fully aware that it is proposed, extends beyond a rightful effort to prevent their own extinction. In my opinion the manufacturers of mechanical music controllers or records are willing to pay a fair and reasonable royalty to composers of music which they use, or to other owners of copyrights for musical compositions, but this must be provided for otherwise than by an enactment which will give rise to the evils attending the said paragraph, section 1 (g) of the bill. That paragraph should be eliminated and other parts of the bill corresponding with this paragraph, and there should be substituted for it, probably at some other more appropriate part of the bill, a provision like the following: "Any person, firm, or corporation who shall make, use, or sell, or let for hire, any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, shall pay to the author or composer of such work a fair and reasonable royalty to be determined according to the market price for such or similar royalties. "And the author or composer of the work so used shall have the same remedies for the recovery from such person, firm, or corporation of such royalty or royalties as is provided in this act for the recovery of damages for the infringement of copyright. "And after the amount of such royalty or royalties shall have been ascertained and become due by express contract between the parties, or shall have been ascertained and adjudged to be due by any circuit court of the United States, and is not paid, then the author or composer shall have the same remedy by injunction against such person, firm, or corporation, as is provided in this act in cases of the infringement of a copyright." It is believed that such an enactment would give to the composers who have appeared before your committees all the rights and remuneration which is due them, and at the same time will defeat the unlawful combination which exists and is hereinbefore referred to. I believe that it will not be at all difficult to arrive at the just value of such royalties, and in almost every instance they would be settled by contract between the owner of the copyright and the maker of the mechanical appliance for producing the music. In the case of a composition of any value the composer will dispose of it for an agreed-upon royalty to some music publisher in the usual way. He will then dispose of his right to the composition for reproduction by mechanical means to some manufacturer of such mechanical means for a royalty agreed upon. If any other such manufacturer, not in contractual relations with the owner of the copyright thereafter makes use of the composition, the amount of the royalty for which the owner of the copyright has contracted will aid in determining what royalty is fair and reasonable and is to be paid by such other manufacturer. I suppose that in some cases litigation may be necessary to arrive at the amount of the royalty, but not more than is inevitable in human affairs. It is not to be supposed that a manufacturer will resist the payment of the royalty for a musical composition which he has utilized and pay to the complainant the cost of litigation rather than make a fair settlement upon terms which are well settled, or will soon become well settled under this act, in the trade. A provision like that above suggested is analogous to, and appears to be quite similar in its effect to, the compulsory-license provision of some of the foreign statutes. For instance, in the law of the Dominion of Canada, lately enacted, in 1903, we have the following: "7. (_a_) Any person, at any time while a patent continues in force, may apply to the commissioner, by petition, for a license to make, construct, use, and sell the patented invention, and the commissioner shall, subject to general rules to be made for carrying out this section, hear the person applying and the owner of the patent, and if he is satisfied that the reasonable requirements of the public in reference to the invention have not been satisfied by reason of the neglect or refusal of the patentee or his legal representatives to make, construct, use, or sell the invention, or to grant licenses to others on reasonable terms to make, construct, use, or sell the same, may make an order under his hand and seal of the patent office requiring the owner of the patent to grant a license to the person applying therefor, in such form and upon such terms as to the duration of the license, the amount of the royalties, security for payment, and otherwise, as the commissioner, having regard to the nature of the invention and the circumstances of the case, deems just." I instance this foreign law to show that under a system of jurisprudence exactly like our own it has been found best to limit rights heretofore granted in the most exclusive form, and provide for compelling the owners of such rights to deal reasonably and fairly with the public. This Canadian law relates to exclusive rights to inventions under letters patent, where the ascertainment of what is a just license fee or royalty is always more or less complicated and difficult. In the case of copyrights much simpler conditions prevail, the value of musical compositions are more easily measurable and there would be far less difficulty in arriving at a fair royalty by a contract between the parties or by arbitration, or, in the last resort, by the judgment of a circuit court. I have mentioned a circuit court merely for purpose of illustration. It would probably be more convenient to confer this jurisdiction on a United States district court. It seems to me that under the conditions which confront your committees, there being on the one hand a desire to recompense musical composers, and on the other hand the necessity of defeating the unlawful combination which will have entrenched itself most securely if the bill should become a law including the objectionable paragraph which I have discussed, an amendment of the bill in some such way as above indicated is inevitable. SPECIFIC AMENDMENT OF THE BILL. I submit that in the interest of the public it is far better to correct any evil in the existing copyright law, which was pretty thoroughly revised not very many years ago, than to pass a revision of the law which uses so many new terms and words which have not received judicial interpretation, and which bill evidently requires itself revision and amendment in almost every section. It requires such amendment in detail in the first place to eliminate those matters which have been embodied in the bill for the purpose of most thoroughly carrying out the provisions of section 1 (g), upon which I have already commented. If it is necessary to eliminate the paragraph specified, it is also necessary to revise the bill in many other sections where corresponding matter appears. In the second place, the bill requires amendment as to the term of copyright proposed, as to the damages for infringement, as to the effect which the certificate of the filing of the entry shall have, as to the way in which and the terms in which the notice of copyright shall be given, and as to broad and uncertain expressions which are found in many sections, which can have no good effect and which will only be productive of uncertainty, confusion, and litigation. I am informed that a substitute bill will be submitted to your committees in the nature of specific amendments to the existing law to cure any evils which may exist therein and, among other things, to give reasonable compensation to authors or composers for the use of their works by the manufacturers of automatic mechanical reproducing devices. I believe that it will be preferable to thus amend existing law, leaving the great bulk of the law in those words and terms and provisions which there is no necessity of changing and which have become well understood by years of judicial interpretation. I will however proceed to discuss the pending bill and point out the specific amendments which appear to be necessary in the interest of the public, both as to clearness and certainty of expression and as to the relative just claims of the author and of the public. Section 1, paragraph (f), should be amended by striking out the words "or for purpose" and the remainder of line 10 and to the end of line 13, and by inserting the words "or to make any variation, adaptation, or arrangement thereof." It will be seen that to retain this paragraph in the present form would be equivalent to retaining paragraph (g), because it was the intent in framing paragraph (f) to have the word "performance" cover the operation of an automatic mechanical device; and the words "arrangement or setting" were intended to include the production of a perforated music sheet. Paragraph (g) should be eliminated for the reasons already given. Paragraph (h) should be amended by inserting at the end thereof the words "amounting to a copy thereof." It is obvious that this paragraph is altogether too broad and uncertain. The paragraph should only protect against infringements which are copies, and it must be left to judicial determination in the future as it has been in the past to say whether or not any particular abridgment, adaptation, or arrangement is a copy within the meaning of the law. Section 2 appears to be substantially similar to section 36, and one of the two sections should be eliminated or they should be consolidated. Section 3 should be amended by striking out "the copyrightable" and the rest of line 4, and to the end of line 8, and substituting "matters copyrighted after this act goes into effect." So amended the section does not appear to be necessary in the bill, but on the other hand in its present form it will be seen at once that it is retroactive and very injurious, making in effect certain matters infringements of the copyright granted under existing law which are not infringements now and are within the public domain. Section 4 is absurdly broad and indefinite and covers pastry or other works of a cook. It should be amended by inserting the word "literary" before the word "works," or by substituting the word "writings," which is used in the Constitution and is the preferable word to employ, or by inserting after the word "works" the words "mentioned in section 5 hereof." In section 5 paragraph (h) should be eliminated. This paragraph was intended to cover perforated music sheets or talking-machine records which are to be otherwise provided for. As to other matters it may be said that if the reproductions referred to are copies of things already copyrighted, they are infringements; if not copies, they are works of art in themselves under paragraph (g) of section 5. On page 4 "The above specifications shall," in line 8 and line 9 and line 10, to and including the words "nor shall," should be canceled, and in line 11, after "classification," insert the words "shall not." It is obvious that an unlimited subject-matter of copyright is highly undesirable from the standpoint of the public. In section 6, line 15, after "compilations," insert "or," and in the same line strike out "or other versions." These words are plainly unnecessary and are intended to have a capability of elastic interpretation unduly favorable to the author and prejudicial to the public. In section 7, paragraph (b), the words "of a work" and the rest of line 6 and lines 7, 8, and 9, to and including the word "text," should be canceled. If a work has fallen into the public domain, even though subsequent to 1891, it would be retroactive to now bring it within the copyright law and deprive the public of its use. Section 8, paragraph (a), in the interest of clearness should be amended by striking out the words "or cotemporaneously" in line 21, and by inserting after line 22 "shall publish his work within the limits of the United States cotemporaneously with its first publication elsewhere; or." Section 9 should be amended by inserting after the word "Act," line 14, the words "and by the performance of the other conditions precedent mentioned in the act, and by entry of the title of the work as hereinafter provided." It is plain that a person does not "secure" copyright by the publication with notice, which is all that is mentioned in this section. Section 10, line 24, the words "and such registration shall be prima facie evidence to ownership" should be struck out. There does not appear to be sufficient reason for giving a mere assertion of claim the prima facie standing of absolute ownership. It would put upon the true author, whose production had been entered for copyright by another person, the burden of proof, and this section if not amended would be very susceptible of fraudulent use. I am inclined to think that it is advisable, certainly if the copyright entry is to be prima facie evidence of ownership, to require that the claim be verified before it is presented to the Librarian, and that false swearing to such a claim shall subject the affiant to the penalty for perjury. Section 13, page 9, line 19, "and all his rights and privileges under said copyright shall thereafter be forfeited" should be canceled. These words might lead to the unjust forfeiture of a copyright if the false affidavit were made by the agent or printer without the knowledge of the author or owner. Also the words seem superfluous. If a condition precedent has not been performed, the right is lost by operation of law without these words. To insert them implies that the provisions of section 13 are not conditions precedent to obtaining a valid copyright. In line 24 the word "and" should be substituted for "or;" and at the end of line 25 the words "if it has been published" should be inserted. It is very desirable that all the facts upon which the copyright depends should be clearly stated when possible. Section 14, line 2, the words "or the," and the following matter down to, but not including the word "accompanied," in lines 5 and 6, should be canceled, and the words "with the date of entry of the copyright" should be inserted. The notice of copyright must be clear and in such usual words, not signs which hardly anyone will understand, as are intelligible to the public. I consider it highly important that the date of copyright, including the year, month, and day, should appear in the notice, and also the name of the person by whom the original entry is made in the copyright office. The indexes will be kept by these names, and any subsequent entry or transfer should always be indexed under such original names. These remarks apply also to sections 44 and 45 hereafter considered. In line 10, after "some," the words "uncovered and" should be inserted. In line 13, after "name," the words "as in the original entry of copyright" should be inserted. Line 19, the word "its" should be changed to "the," and in line 20, after "following," the words "of each separate volume" should be inserted; and in line 24, after "accessible," the word "uncovered" should be inserted. Page 11, line 3 should be stricken out or amended to cure its indefiniteness as to the meaning of the word "composite." In line 4, the word "musical" should be changed to "musical-dramatic." It has never been intended by the copyright law to use the word "performance," excepting of such works as are only useful when represented or "performed" in a dramatic sense. The word "dramatic" has not always seemed sufficiently broad, and the words "musical composition" have often been added to include operas, oratorios, and musical works that are not purely dramatic, and yet are partially so. It is submitted that it has never been the intention of the law to make the mere singing of a song from copyrighted notes that have been paid for, or the playing of music, infringements of copyright, and it is believed that this section will carry out the full intent of the law if the word "dramatic" be coupled with the word "musical," as above indicated. In view of the use of the word "performance" in other parts of this bill for the purpose of including the use of automatic mechanical devices, it should be made clear that the word "performance," in line 5, has nothing beyond its ordinary significance. I suggest that this can best be attained by striking out the word "performance," in line 5, and inserting the word "representation." Section 15 should be amended by striking out the words "if, by reason" and the rest of line 11 and lines 12 and 13. It is plain that these words in the bill leave an open door for free publication which brings a work within the public domain, and subsequent monopoly of the work upon a mere allegation of error. The Librarian has not the facilities or legal machinery to try such question of error, and it should be left to the courts to determine whether there has been an error or omission, and whether by reason thereof any condition precedent for a valid copyright has been left unperformed. Page 12, line 13, the words "bulk of the" should be stricken out. These words are uncertain and would allow the proprietor to omit the notice from 49 per cent of the edition. This would clearly amount to insufficient notice to the public and could be made the instrument of fraud. Line 14 and the remainder of the section are entirely sufficient for the purpose without the words "bulk of the." Section 17, line 22, the words "be extended to" should be canceled, and at the end of line 24 the words "such term beginning with the date of filing the request for the reservation of the copyright," should be inserted. There appears to be no reason for granting more than the specific term, which the law will provide, in the case which section 17 is intended to cover. Section 18 relates to the term of copyright. The whole system provided in the Constitution is for the benefit of the public, the intent is to accumulate for the use of the public, matters of literature, art, and invention. The stimulus in the way of a reward given by the public in return for these matters is subsidiary to the main object. The reward consists in "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The objection to the term provided in the bill is that it is unconscionably long. It may easily amount to a hundred years or more, during which time the public will have paid tribute to the author for something which will be so old fashioned as to be useless to the public when the copyright has expired. The word "limited" in the Constitution shows that the framers of that instrument had in mind to secure for the public certain benefits after the time had expired. To provide such a long copyright term as the authors seek to obtain in this bill would practically defeat the object of the said clause of the Constitution and the intention of its framers. I submit that it could only be considered for a moment on the ground that it is a matter of indifference to the public because the works so to be protected are entirely useless in themselves. I do not think there is any sufficient reason for lengthening the term--twenty-eight years with an extension of fourteen years--provided by existing law. In another respect this section is bad in making the length of the term dependent upon an event which is uncertain in advance, and of which no public accessible record may be made when it occurs; that is to say, the death of the author. I see no reason why a young author should have longer protection than an old author, and the provision would leave open to publishers a door of fraud by securing copyrights for the productions of old authors in the name of some younger person. The objection to a long term especially applies to music which depends almost entirely upon fashion and taste, and these soon change and the music becomes useless to the public. In my opinion, purely musical productions should have a relatively short term of copyright, but I have not considered the subject sufficiently to be justified in fixing any precise number of years. But as to all copyrights it is my conviction that the interest of the public unquestionably requires that they be granted for a definite term of years, and that, if an extension is provided, the extension should be for a fixed and definite time. It is only this which enables the public to know, upon reading a notice of the copyright, when the monopoly will terminate. If for any reason it should seem wiser to make the term dependent in its length upon the death of an author, then the continuance of the copyright should depend upon definite evidence being filed in the copyright office showing positively the date of death. At the end of section 18, page 15, line 8, after "name," the words "_Provided_, That in such published work the notice of copyright be given as required in this act" should be inserted. Section 19 should, in my opinion, be canceled. It is retroactive in its character. Definite contracts have been entered into between authors and the public with respect to matters already copyrighted, and it would impair the obligations of those contracts to provide any renewal or extension of such copyrights. It has already been agreed between such authors and the public at what time their copyrighted works shall pass into the public domain. Recurring to lines 3 and 4 of page 15, I submit that they should be canceled, so that the copyright shall extend for a definite number of years after the date of original entry. There seems to be no sound reason for giving an author a longer copyright, longer by a year, if he makes his entry on the 2d of January, than another author will have who enters his copyright on the 30th of December preceding. Section 21 should be canceled, as it gives, in effect, copyright privileges where the conditions precedent required by this act have not been performed. Section 22, line 14, is too broadly worded for the benefit of the authors of this bill, and the word "reproduction" should be canceled and the words "copy or representation" should be inserted. In lines 22 and 23 the words "such fraudulent" and the rest of the section should be canceled, and the words "copies which are infringements is hereby prohibited." Section 23, paragraph (b), should be canceled and made to read: "(b) To pay to the copyright proprietor damages for the infringement." As the paragraph now reads, it gives double damages. The proprietor should receive damages which will be judicially ascertained in the ordinary way, either by estimating the profits which the infringer has made, or by estimating the damages or loss which the proprietor has suffered. If there is no actual damage it should not be provided that $250 should be recovered, and if the damages are greater than $5,000 there is no sound reason for limiting them to the latter sum. For the same reasons lines 18 to 24 on page 17, and lines 1 to 7 on page 18, should be canceled. Paragraph (c) on page 18 should be amended by striking out the word "alleged", in line 10, and inserting "shown to the satisfaction of the court." Section 25 should be amended by inserting at the end of line 23 "and with intent to deprive the owner of the copyright of lawful profit." The word "willfully" does not appear to make the section sufficiently clear, and it is submitted that an infringer should not be held guilty of a misdemeanor unless he have the intent specified in the suggested amendment. After line 6 on page 19 the following words should be inserted: "_Provided_, That any person who performs the alleged infringing acts under a mistake of fact or law shall not be deemed to be a willful infringer." The alleged infringer may have good reason to think that conditions precedent have not been performed and that no valid copyright exists; he may be under a mistake as to when the term expires; he may be of the opinion that what he has produced is not a copy, and he may perform his alleged infringing acts under advice of counsel. It does not seem proper under such circumstances to hold him to be a willful infringer and guilty of a misdemeanor. In line 14 of page 19, after "knowingly," the following words should be inserted: "and with fraudulent intent." Page 20, line 9, before "publish," the following words should be inserted: "send notice of such seizure by registered mail to the person to whom the article seized is consigned or directed, and shall." Section 27, line 24, after "first," there should be inserted the words "mailing or". Section 29, lines 6 and 7, the words "supposed to contain" should be canceled, and the words "which contains" should be inserted. It is unreasonable to permit a postmaster to detain a package upon a mere supposition. In line 9, before "mail," there should be inserted the word "registered." Page 24, lines 16 and 17, the words "not more than one copy at one time" should be canceled, and in line 17 the word "or" changed to "and." At the end of section 32 the following should be inserted: "_Provided_, That the owner of the right to perform any copyrighted work by means of any automatic mechanical device shall not have the remedy by injunction herein provided until the amount of fair and reasonable royalty for such use shall have been ascertained by express contract between the parties, or by judgment of a court, and shall be due and not paid." Section 35, line 8, the word "full" should be canceled; and in line 9, after "allowed," there should be inserted "according to the practice of law and equity." In many cases it might be inequitable to allow costs, and the court should be left free to exercise its legal discretion. Section 36, line 11, the word "common" should be inserted before the word "law." This section should be compared with section 2, and they should be consolidated, or preferably they should both be omitted as unnecessary and as being outside of the purview of this act. Section 38, line 23, there should be inserted after the word "musical" the word "-dramatic." Line 25, the word "make" should be canceled and there should be inserted the words "produce by." It is evident that the right to make belongs to the patentee of the device. Page 30, line 1, the words "ninety days" should be changed to "three months" as more convenient and as excluding any contention whether or not Sundays and holidays are included in the ninety days. The similar provision of the patent law reads "three months." Section 44 should be amended by inserting after "assignment", in line 12, the words: "and index the same under the name of the person by whom the original entry of copyright was made." Section 45 should be amended so that lines 21 to 23 shall read as follows: "signee shall in all cases give in the statutory notice of copyright prescribed by this act the name of the person by whom the original entry of the copyright was made." Without this provision the public will be put to great inconvenience in finding the original entry on which the copyright depends. The copyright notice should be of a clear and specific character so as to cause the public as little inconvenience and uncertainty as possible. Paragraph 52 should be amended by striking out "provided" and all thereafter to the end of the paragraph in lines 2 and 3 of page 33. This provision is altogether too broad and the courts should be left free to determine what are conditions precedent to a valid copyright and whether there has been any breach of them. Section 54 should be amended by striking out the words "the date of the" and inserting "that the affidavit states the dates of;" and in line 20 cancel the words "as stated in the said affidavit," and insert the words "which dates shall be given in the certificate." Section 55 provides for the destruction of card catalogues. The wisdom of this provision is very doubtful. A single card catalogue for each class of copyright work would save an immense amount of time and error to the public, and to the Librarian in making searches. Instead of periodically destroying card catalogues, they should be added to and preserved. As soon as they are destroyed, instead of being able to make one examination of one part of the card catalogue, the public will be compelled to examine a great number of periodically made printed indexes. I therefore suggest that the words "and thereupon", to and including the word "intervals," lines 9 to 12 of page 34, be canceled. As to the destruction of articles provided for in section 59, I suggest that the section be amended by inserting in line 10 of page 36, after the word "provided," the words "and with the authorization of the Committees on Patents of the Senate and of the House of Representatives." Section 63 should be amended by striking out the words "sold or placed on" in line 7, and by inserting "made public, or sold publicly or privately, or placed on public." As to section 64, I have to suggest that the present bill is supposed to be what may be termed a codification of the copyright law; if so, section 4966 of the Revised Statutes has no proper place outside of this bill. If there is anything desirable in the section it should be embodied in the bill at the proper place, and in doing so it should be made plain that the word "musical" where it first occurs in section 4966 means "musical-dramatic," meaning thereby a composition which is dependent upon representation or performance in the dramatic sense. I do not believe that the people of this country are aware of what the musical composers and publishers are attempting to do in the way of securing monopolies. If the public were aware that these persons, after having secured copyrights giving them the exclusive right of copying and publishing music for sale, and after having sold the copies of such music are attempting to secure laws by which they may impose further taxes upon the public for the use of such music by singing or playing, and are seeking to provide fines and terms of imprisonment for those members of the public who do not pay the additional tax, there will be such a storm of protests before your committees as could not be disregarded. Section 4966 of the Revised Statutes should be repealed altogether, and so far as its provisions appear in this bill they should be limited to musical-dramatic compositions, and the provisions for damages other than actual damages and for imprisonment should be absolutely eliminated. Very respectfully, H. N. LOW. The ACTING CHAIRMAN. Now we will hear the gentleman who represents the talking machines. STATEMENT OF S. T. CAMERON, ESQ., REPRESENTING THE AMERICAN GRAPHOPHONE COMPANY, OF NEW YORK CITY. Mr. CAMERON. Gentlemen, the first objection we have to the bill is, in our mind, the most serious one, and one which has been several times touched upon heretofore, so that I shall not attempt to go into any very great detail in discussing it here, but shall simply call attention to the fact that we object to it, and point out to you why, in connection with our particular business, it is especially important. If you will turn to section 4 you will find that it reads: That the works for which copyright may be secured under this act shall include all the works of an author. Our position is that this is in direct contravention of the Constitution. If you will substitute in that clause the word used by the Constitution, and say that the works for which copyright may be secured under this act shall include all the "writings" of an author, then we do not object to that section. Now, if you will take certain other sections of this bill, with that change made in section 4, and attempt to read them, particularly where the word "reproduce" occurs, or the word "reproductions" occurs, you will see the importance of it to us. Take, for example, section 3, immediately above: That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof. If you read that word "reproductions" with the word "works" in section 4 changed to "writings," reproduction means a very different thing. If you will turn to section 18, on page 14, subclause b, you will find this language: Any arrangement or reproduction in some new form of a musical composition. Mr. CHANEY. What do you understand the word "works" to mean in section 4? Mr. CAMERON. It may mean anything that is reduced to writing, or that is not reduced to writing. It may be an oral speech that is absolutely wafted upon the winds of the air and never gets into permanent form. In proof of that we go to section 5, line 20: "Oral lectures, sermons, addresses." The talking-machine art stands in a somewhat different position from that of the perforated music roll. You take a sheet of music and you have Sousa's or any other band play that music into the horn of an instrument, a patented apparatus. That machine engraves lines corresponding to what? To the sound waves produced by the band or the voice of the performer on the wax or other tablet. Now, if you make that word "works" read "writings," as I understand, as the Supreme Court has interpreted the word "writings," it means this, in its broadest signification: That the idea of the author has been recorded in some tangible form, in such a way that another, through the eye, may have the idea of the author impressed upon his brain. That may be a painting; it may be the work of an artist. I think the Supreme Court has included a painting under that term because of that very fact, that the idea of the artist was recorded in some tangible form and, through the eye of the beholder, the idea of the artist was conveyed to the brain of the beholder. That is what a writing is, as I understand it, within the meaning of the Constitution. Mr. CHANEY. The effect of your argument is, then, to limit the word to something that can be read by anybody? Mr. CAMERON. Not necessarily by anybody. Mr. CURRIER. But by somebody? Mr. CAMERON. Yes. I can not read Sanskrit. Mr. CHANEY. I mean to say, that can be read by persons understanding the same language? Mr. CAMERON. Yes; something that is capable of conveying to the reader, if you may call him such, the idea of the author. Mr. CHANEY. And in that respect it would cut out the music-roll proposition altogether? Mr. CAMERON. As my predecessor has told you, there is a dispute in regard to that, and I am not qualified to state. As far as I have been able to analyze the evidence, the preponderance is against the idea that the music roll can be read. But I do know this: There is a graphophone record of the disk form [exhibiting record to the committee]. There is a graphophone record of the cylinder form [exhibiting record]. I defy anyone--I defy Mr. Sousa to read that and tell whether it is one of his marches or whether it is a speech of a Member of Congress. [Laughter.] Mr. CHANEY. They are often very much alike. [Laughter.] Mr. CAMERON. They are both musical. [Laughter.] Mr. MCGAVIN. They are alike in volume of sound. [Laughter.] Mr. CAMERON. I am not making this statement theoretically nor as a lawyer. I make it as an expert in this particular art. I have spent months and months of time with the microscope myself striving to do that very thing, and I know it can not be done. Now, let us go one step further. What is it that makes that graphophonic record valuable? I can take Mr. Sousa's score and I can select some person, some alleged musician in this audience, and I can hand him a graphophone and tell him to make that record, and it would not be worth one cent upon the market. It takes the genius of a Sousa to play into the horn. It takes the voice of the magnificent singer to sing into the horn; and it takes the skill of the mechanician who is operating the graphophone to make a fine record that has a marketable value. You ask me if I would use Sousa's march, make that record and sell it, and not pay him any royalty. I answer, "Yes; I would;" because I have paid him royalty. Whenever Mr. Sousa publishes one of his pieces of music and puts it out upon the market and I pay the price of that music, that sheet of music passes from under the monopoly, just as when I patent a cornet and sell the cornet to Mr. Sousa, and he pays the price for it, it passes out from under the patent monopoly, and he has a right to use it. Suppose I should come here and say to you that every time one of Mr. Sousa's cornet players played the cornet that I had sold to him that he should pay me royalty for having played it! That is what he is asking of you. That is not all. Mr. Sousa himself does not scorn, as he pretended to the other day, these "infernal talking machines." The day has been when Mr. Sousa himself came with advance scores and begged to have them put upon the machines, in order that they might popularize his own music. Nor is that all. He to-day is under contract, and he plays into these "infernal machines" with his band, and he is contributing, as he told you a few days ago, to stifle these "beautiful young voices that now have disappeared throughout our city and our land." [Laughter.] He does it for the almighty dollar. That is what he is after, and he frankly told you so. Mr. SOUSA. I am honest, anyway. [Laughter.] Mr. CAMERON. You are; and, as I said to you the other day, I respect you for it. All the men urging this bill are not as honest as you are, sir. Mr. CHANEY. That is neither here nor there. We give them all credit for being honest. Mr. CAMERON. I would not have made that remark if I had not been interrupted. It was stated a moment ago, and it is a fact of which I wanted to speak, that the intention here is to give everyone a fair show. The gentleman here on my left (Mr. Webb) suggested that this bill would not prohibit the perforated music rolls (and the same question would apply to the graphophonic cylinder) from the reproduction of those pieces of music or other copyrightable works which had appeared and been copyrighted prior to this act. In that he is in error. Section 3 says: Any and all reproductions, or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting. So that it does not go only to matter that is copyrighted subsequent to the passage of this act. Mr. WEBB. I was speaking particularly of section g. That was the section that the gentleman was objecting to, and I referred to that particular portion. Mr. CAMERON. The act, however, would apply by reason of section 3 to subsisting copyright. Mr. WEBB. Yes; that may be so. Mr. CAMERON. There is a situation in the talking-machine art that is perhaps divisible. You see two distinct forms of records. The company which I represent--the American Graphophone Company--makes both of those forms. There are a great many other companies, some of them making the machines and the records, and some of them making only the records. Some of them make the cylindrical form of record and some of them make the disk form of record; but there are two large, prominent companies, one of which makes the disk form of record and the other of which makes the cylindrical form of record. As I say, the company which I represent makes both. Follow me now, if you please. There is also as close a musical trust, as has already been said to you by my predecessor, in this country as it is possible to form. That extends not only throughout this country, but throughout the world. There are a few musical geniuses who are able to stand above it and make them scramble for the genius. You have two of them with you to-day, Victor Herbert and John Philip Sousa. But John Philip Sousa can not speak for the struggling young composer who is not powerful enough to compel this trust to come to him instead of the young man going to the trust. How does that effect us? Did you hear any opposition to this bill from the attorney of the Victor Talking Machine Company? No. They make the disk form of record. Have you heard any opposition from the National Phonograph Works--the Edison Company--in regard to this bill? No. They make the cylindrical form of record. Why does the Victor Talking Machine Company come here with such a virtuous show of regard for the author, and say they have no objection to this? Why is not the representative of the Edison Company--the National Phonograph Works--here opposing this bill? Because, as I charge, and I think I can substantiate it before I get through--not here, but I mean before the hearings before this committee are through--there is under way the same iniquitous proceeding that was outlined to you by my predecessor in connection with the music rolls. Mr. PETTIT. That is absolutely untrue, as far as the Victor Talking Machine is concerned. Mr. CAMERON. You can have a chance to reply when your time comes. One company gets the exclusive right to make the disk form of record from copyrighted music, and the other the exclusive right to make the cylindrical form of record. Let us assume for a minute that what the gentleman says is literally true. Let us assume, I say. Is it not possible for just that combination to be made, and should the American Graphophone Company, which has millions of dollars invested in the enterprise, honestly and fairly built up under the laws of this country, money put in and money which it had an absolute right to presume the law would protect--should that company be placed in the position where it should be practically driven out of business by any such monopolistic combination? Will you gentlemen give them that opportunity? I am not prepared to say that this music publishers' combination is the most gigantic trust on earth, but it is an absolutely close and effective trust. You may reply that we have the right to play and put upon these records all of the old noncopyrighted productions, those that are now within the public domain. To that I reply that the perforated music roll man or the talking machine man who attempts to rely solely upon old music will go out of business inside of eighteen months. He has got to meet the demand for the popular airs of the day. He has got to be able to produce Sousa's and Victor Herbert's latest productions. "I want what I want when I want it." That is where the public stands. [Laughter.] You wait three years instead of fifty, and where would we be? Moreover, we go to Japan, we go to China, we go to the various countries of the earth, and make these records--get the original records. We do not make the original record on that disk. We do not make it upon that cylinder. We make an original record from the voice of the singer. That original record in the case of the cylinder is first very carefully covered with plumbago, to render it electrically conductive. It is then electroplated with copper; by applying cold, the original record is shrunk out, and you then have a mold, which has on its interior a perfect counterpart of the sound groove cut upon the face of the original record. We pour into that mold melted wax, or a composition that is called wax in the trade. When that is hot, it takes the impression of the mold and retains that until it sets; and as it cools it contracts, and we are then able to withdraw that from the mold, and after trimming the ends, that reproduction, that copy, is as perfect a record as the original one. If it were not so, we could not make and sell a record for fifty cents when we have to pay the singer from $500 to $1,000 or $3,000 for making the original record. Mr. WEBB. I was going to ask, How do you get Mr. Sousa's pieces? Do you pay him for it? Mr. CAMERON. We do not; no, sir. Mr. WEBB. Who does? Mr. CAMERON. The Victor Talking Machine Company has an exclusive contract with Mr. Sousa, and he gets paid for that. He did not tell you that the other day. Mr. SOUSA. That is absolutely untrue. Mr. CAMERON. If it is untrue I am ready to beg the gentleman's pardon. I had that information direct this morning, but I will gladly withdraw it upon Mr. Sousa's word--gladly. I do not want to make any misstatement. Mr. SOUSA. I have never received one penny for my compositions from any kind of talking machine, nor have I ever made a contract with any of those companies. Mr. CAMERON. I did not state that. I stated that Mr. Sousa, with his band, played into the horns of these instruments to make these records and was paid for doing it. Mr. SOUSA. An organization known as "Sousa and his band," employed just as any other body of musicians, in which I have no part myself, plays into the instrument. That goes under arrangements made with the management of that organization to play anybody's compositions that these firms may elect; it may be a noncopyrighted piece or a copyrighted piece, or anything else. Mr. CAMERON. I am very glad Mr. Sousa stated that. He says that he does not play his own music only, but his band stands ready to play any other man's music, copyrighted or not copyrighted, into these machines. Mr. SOUSA. Not myself; no. Senator LATIMER. I want to ask a question of Mr. Sousa, so as to clear the matter up a little further. The statement is that you have a band that plays into these instruments, and you, I understand, have denied that? Mr. SOUSA. No, sir; I do not deny that "Sousa and his band," an organization known as "Sousa and his band," play for talking machines. Senator LATIMER. Do I understand you to say that you have no connection with that band? Mr. SOUSA. I am the director of that band, but I have no personal part in the performance of those pieces. I have never been in the gramophone company's office in my life. Mr. MCGAVIN. Do you play for anyone else besides the Victor Talking Machine Company? Mr. SOUSA. My manager has a contract with them for so many performances. Senator LATIMER. You have an interest in the band and receive profit from it? Mr. SOUSA. Yes; surely. Mr. WEBB. You allow your name to be used all over the country? Mr. SOUSA. In the performance of these pieces, certainly. Mr. CAMERON. That was my charge. Mr. HERBERT. In regard to the untruth the gentleman has stated---- The CHAIRMAN. Do you want to deny any statement that he has made? Mr. HERBERT. Yes. In regard to this, naturally it would be inferred that it was the same case with me. In fact, he mentioned us two together. A band played into these instruments, calling itself "Victor Herbert's band," and I sued the talking machine company. That is what I got out of the company. Mr. CAMERON. The gentleman misunderstood me. I have made no statement in regard to him, and I have no information in regard to him one way or the other. Mr. CURRIER. He made no charge against you, Mr. Herbert. Mr. HERBERT. Since our names have been linked all the time, I thought he intended what he said to apply to me also. Mr. PETTIT. I would like to say to Mr. Cameron in regard to his statement about the Victor Company and Mr. Sousa, that whenever we have used Mr. Sousa's music, or rather whenever we used his band on Victor records, we always paid him for it--that is, we pay Mr. Sousa for playing. Senator LATIMER. I want to bring out one point in connection with that. In making these records, if I understand, now, Mr. Sousa has a band that represents him, playing these pieces, and you pay for that music when you get it, or do you not? Mr. CAMERON. Whoever employed Mr. Sousa pays for it. Senator LATIMER. Then it is paid for when you get these records? Mr. CAMERON. I do not wish to be misunderstood. We can take and do take one of Sousa's marches and have another band, with which Mr. Sousa is not connected, play, and we make the record; and in that case Mr. Sousa does not get any of the compensation whatever. None of that goes to him. Mr. WEBB. But you do not advertise it as being played by Sousa's band? Mr. CAMERON. Not at all. We advertise it as Sousa's march. Mr. WEBB. You advertise it as a march by Sousa as a composer, but played by somebody else as the executant? Mr. CAMERON. Yes. That is recognized as such a valuable thing to the composer, that John Philip Sousa has been to the office of the American Graphophone Company, in years gone by, with advance scores, and asked them to send them out, to advertise and help John Philip Sousa along. He will not deny it. Moreover, we are flooded to-day with artists that are struggling on the lower rounds of the ladder, that are not as high up as John Philip Sousa was a few years ago, either, begging us to do the same thing for them. I mention that to show you that even John Philip Sousa, before he got where he bestrode the musical world like a colossus, even he recognized the advertising value of the talking machine to a composer. We are not doing him such a great injury. Mr. SOUSA. I would like to say, Mr. Chairman, that the gramophone, these talking machines, are really of very recent date. I believe the gentleman will agree with me when I say that if we go back fifteen years or sixteen years ago, we looked upon them purely as a toy. I remember the first one I saw here in this city where I was born. A gentleman had a man bark into it, and it was a remarkable thing to hear this thing bark---- The ACTING CHAIRMAN. I would suggest, Mr. Sousa, that you are taking up this gentleman's time. Unless you want to specifically deny something that he has said, or ask a question, it is hardly fair to him. Mr. SOUSA. If I ever did allow the Gramophone Company to do it, it was because I did not think it was as important to them or to me as I do now. Mr. CAMERON. Please do not confuse us with the Gramophone Company. It is a different thing. Mr. CURRIER. Do you wish to deny that you are a musical colossus? [Laughter.] Mr. SOUSA. No. I will admit that. [Laughter.] Mr. CAMERON. One thing more in regard to the constitutional question which I mentioned. I shall submit, or the company I represent will submit, a written brief. You will be addressed on that point much more ably than I can address you by Mr. Walker, who will succeed me. I want, in closing, however, to emphasize one fact which my predecessor, I understood, was told was unnecessary. With all deference to the chairman, who said so, I disagree with him. That is the fact that not only was the American Graphophone Company and the talking-machine interests not notified, not only were these conferences--quarterly conferences, we might call them, held in secret---- Mr. CURRIER. I think you gentlemen had better all make it clear, when you speak about these conferences, that you do not refer to committees of Congress. Mr. CAMERON. No, sir; we do not. We refer to these star chamber proceedings, before this bill was introduced into Congress. Mr. CURRIER. By whom? Not by anybody connected with the Congress? Mr. CAMERON. By Herbert Putnam and the men he brought around him. That is by whom. Mr. CURRIER. I wanted it made clear that you were not referring to any committees of Congress. Mr. CAMERON. Every effort was made to keep us from knowing that any such bill was under way. It was not merely an act of omission, but it was an act of commission. That is not all. Not only were the American Graphophone Company not notified, but, if you will turn to the list of those present, you will find that one of those whom I have mentioned here, the representative of the Victor Talking Machine Company, at the third stage of the proceedings, was present--as what? As one of the musical publishers of the country, representing the Victor Talking Machine as one of the musical publishers of this country. See how close the association is. The gentleman who follows me will point out that association a little closer. I think by that time the committee will realize that my suggestion of a close cooperation between the National Phonograph Works, the Victor Talking Machine Company, and the Musical Publishers' Association is well founded. I thank you. The CHAIRMAN. Gentlemen, we will meet to-morrow morning at 10 o'clock to hear Mr. Walker. Mr. BURKAN. I represent the publishers and the composers. An attack has been made here, and we feel that we should get at least several minutes to answer the charges that have been made. Mr. CURRIER. You will have some time to-morrow. We meet at 10 o'clock to hear Mr. Walker for an hour. After that you gentlemen will have an opportunity to be heard, undoubtedly. Mr. CROMELIN. I was to appear here to-day for the manufacturers, in behalf of the talking machine interests, and was to follow Mr. Cameron. If the chairman pleases, I should be very glad to continue the first thing to-morrow morning, and let Mr. Walker follow. The CHAIRMAN. I could not consent to that, because I understand that Mr. Walker has been notified that he will be heard the first thing to-morrow morning. Mr. CROMELIN. I think Mr. Walker will agree to that. Mr. WALKER. It will be quite consistent with my convenience to let this gentleman precede me for whatever time he wishes. The CHAIRMAN. How long would you want? Mr. CROMELIN. Probably fifteen minutes to half an hour. The CHAIRMAN. With that understanding, Mr. Walker, he will precede you. Mr. WALKER. Yes, sir. And I am to have an hour after that? The CHAIRMAN. Yes. (Thereupon the committee adjourned until to-morrow, Saturday, June 9, 1906, at 10 o'clock a.m.) COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, _Saturday, June 9, 1906_. The committee met at 10 o'clock a.m., conjointly with the Senate Committee on Patents, pursuant to adjournment. Present: Senators Kittredge (chairman), Clapp, and Smoot; Representatives Currier, Dresser, Bonynge, Campbell, Chaney, McGavin, and Sulzer. Mr. PUTNAM. I have one or two communications, Mr. Chairman, in effect addressed to the committee, which I offer for the record. The CHAIRMAN. They may be inserted. The communications referred to are as follows: WASHINGTON, D.C., _June 8, 1906_. The JOINT COMMITTEE ON PATENTS, _United States Senate and House of Representatives_. GENTLEMEN: On behalf of the Photographers' Copyright League of America, having participated in the conferences called by the Librarian of Congress upon the subject of a new copyright law, we beg to say that we give our hearty assent to the principles of the bill as proposed. Of course, there are minor matters which might have been otherwise drafted by us, but we as cheerfully surrender such particular items, as did many other interests represented at the conference. Copyright legislation has for its basic principle the protection of the property of the copyright owner, and though remedies for damage are manifestly necessary, prevention of injury is the matter of highest importance to the copyright owner. Legislation which acts as a deterrent is the active principle of protection prescribed by the Constitution. For these reasons we believe the pending bill has been framed upon logical and consistent lines which, if enacted into legislation, will doubtless form precedent for other countries. Very respectfully, PHOTOGRAPHERS' COPYRIGHT LEAGUE OF AMERICA. B. T. FALK, _President_. PIRIE MACDONALD, _Delegate_. HORACE PETTIT LAW OFFICES, _Philadelphia, June 1, 1906_. HERBERT PUTNAM, Esq., _Librarian of Congress_, _Washington, D.C._ DEAR SIR: Referring to the proposed bill to amend and consolidate the act respecting copyright, a copy of which has been handed me, with your circular letter regarding suggestions, I would say that I would propose that the following clause be added continuously to the end of section 3: "_And provided_, That nothing herein contained shall apply to sound records made or to be pressed from dies or matrices manufactured prior to the passage of this act." That the following be added to section 18, paragraph (_b_), line 7, of said paragraph, between the word "composition" and the word "any," viz, "including any talking-machine record." The amendment to section 3 is mainly designed to protect talking-machine manufacturers who have invested very large sums of money in records and in dies or matrices for pressing the same, many of which contain musical compositions the notation of which has been copyrighted, but which under existing laws these records do not in any manner infringe. To now take away the right to use these matrices and records, into which so much money has been put, would be very unjust and inequitable and work a great hardship upon the talking-machine manufacturers--that is, if my reading and understanding of this bill is correct. This would tie up a very large amount of capital, and place the talking-machine record manufacturers at the mercy of the owners of subsisting copyrights. The object of the amendment to section 18, paragraph (_b_), is to relieve any doubt that records containing the characteristic articulation of the human voice, or the characteristic instrumentation by a performer, adapted for reproducing these characteristic utterances and performances to the ear are intended to be included as copyrightable matter under section 4 of this bill. I think there will be no question but that the particular characteristic utterances of a singer, or recitationist, or of an actor, or of an orator, or the particular instrumentation of a pianist, or leader of an orchestra, etc., independent of the composition itself, whether it is copyrighted or not, should be equally entitled to protection, as a photograph or reproduction of a work of art. It matters not whether the subject-matter of the record is otherwise copyrightable or not. If the piece played is copyrighted as a musical composition, it can not be reproduced on a sound record, in accordance with the bill, without the permission of the composer. A Paderewski, however, may play the copyrighted selection, and a record of his rendition of it, with all his personality and individuality thrown into the piece, should be entitled to a copyright on a sound record for reproducing purposes. This is true also of the voice of a Caruso or a Melba singing either a copyrighted or uncopyrighted piece. It is true also, as a further illustration, of the recitation by Henry Irving of "Eugene Aramas' Dream." What is here copyrighted in these records is the individuality and personality of the rendition by the performer. It is the picture of the voice, or of the instrumentation, as, for instance, a copyrighted photograph is a picture of a person or thing. Should another performer play the same piece played by a Paderewski the personality of Paderewski would be absolutely wanting, and the same difference between the two performances of the same composition would be in the respective sound records as would exist at the actual performance of the respective pieces. The same differences between Caruso's rendition of a selection from Rigoletto and a concert hall singer's rendition of the same would exist in the sound record and the reproduction therefrom as would exist in the actual singing of the selection. This is true regarding personality of every voice and instrumentation recorded. So-called talking-machine records in this respect differ quite materially from the mechanical organ and piano, for the reason that a so-called talking-machine record is an exact record of all the modulations, and all the characteristic articulations of the voice, as well as of all the characteristics of an instrumentation. In other words, it is an exact picture of all the merits and demerits of the original, and the original is reproduced with an exactness so that frequently, at a distance, in the present perfected state of the art, the reproduction may very well be mistaken for the original. This record of the voice and instrumentation for sound reproducing is an art which was not commercially available, or perfected, when the earlier copyright laws were passed, and therefore were not included. It is doubtless the intention of the framers of this bill to include such sound records as copyrightable matter, but in order to relieve the bill from any doubt it may properly be expressed in this section as I suggest. Hoping that this will meet with your approval, I remain, Yours, very truly, HORACE PETTIT. THE PLAYWRIGHTS LEAGUE CLUB, _New York, N.Y., June 2, 1906_. LIBRARIAN OF CONGRESS, _Washington, D.C._ DEAR SIR: We are in receipt of your favor of the 31st ultimo, with copy of proposed copyright law. After careful consideration the provisions of this law seem admirably suited to the purposes, and its framers deserve great commendation. As circumstances do not permit my attendance at the hearings, I would consider it a favor if you would read this letter to the committee, if not all of it, then the portions which may not be referred to at the hearing, should anything herein referred to fail to be considered. The latter paragraphs of the letter are especially brought to your attention. In section 1, subdivision C, provision is made for the protection of an "oral delivery" which has been prepared. Would it not be well to specifically allow a speaker to announce at the conclusion of an extemporaneous address his intention of copyrighting it, not permitting this announcement, however, to interfere with the liberty of the press in reporting portions of it? Section 9 directs that notice of copyright shall be given at each public delivery of a lecture or similar work. Does "similar work" include dramatic composition? Is the proposed notice to be given orally, or by publication on a programme, if there is a programme? It would seem that in the case of a dramatic composition theatrical managers should be compelled by law to print on each programme copyright notice of the play or plays produced, being allowed, where there is no programme, to announce it orally. It would also seem important that in the case of a dramatic composition publicly acted in foreign countries notice of copyright in the United States, together with legal title of the work in English, be printed on the programmes, as well as on the manuscript copies of the play. This would serve as a notice against translators, who otherwise would have great difficulty in finding out whether a foreign play had been copyrighted here, since the name of the play or its English equivalent rather, would be very uncertain. Does the new law specifically require all titles to be also in English? Does the law provide for the registration of the title in advance of the deposit of copies as at present--a valuable privilege? Section 20 seems calculated to work an injustice to novelists. That the author's exclusive right to dramatize his copyrighted work should cease in the event of his being unable within ten years to induce managers to produce his dramatization would be unfair--would, in fact, encourage producers to wait until after ten years before producing a dramatization of a novel. Would it not be sufficient to state that the exclusive right terminates at the end of ten years provided the author does not file at least an unpublished dramatized version? Does this section 20 mean that a foreign dramatist who deposits an unpublished and untranslated copy of a dramatic composition loses his rights if his play is not produced publicly in ten years, or does it allow him to deposit a translated unpublished copy any time within ten years, in order to protect his rights? Section 45 might be profitably augmented by including the privilege of allowing an author who writes under a pen name to print the notice of copyright also under the same pen name. This would be a considerable privilege, since at present he must go through the complicated process of assigning his copyright to another if he does not wish his real name to appear. In his claim for copyright he could state both his real name and his pen name in which he wished the copyright to appear. This would work injustice to no one and would be a great convenience to authors whose real names are of an uninspiring nature. This section 45 might also contain a provision allowing an author to change the title of an unpublished work without deposit for further copies, provided he paid a fee, since almost every unpublished play is renamed. The duplication of copies of the same work under different titles is of no service to the copyright office and is frequently an expense to authors. The production of a play under any other than its copyrighted title should invalidate the copyright. The requirement of section 60, raising the copyright fee from 50 cents to $1, will work a real hardship to many writers, particularly those who write short plays for vaudeville and have a hard time to make a living, to those who write many plays without ever securing any returns, and to the writers of words of songs, whose work is apt to be stolen unless copyrighted and who receive a very small compensation in any event, as a rule. We would strongly recommend that for unpublished works and short articles in periodicals especially copyrighted and for photographs the fee be held at 50 cents, or even reduced to 25 cents. Upon the enactment of the new law the copyright office will receive from the dramatic writers a great many more works than are at present offered, owing to the unsatisfactory condition of the existing law. The number of dramatic compositions offered will also be greatly increased by the favorable fact of the omission on the notice of copyright of the year. At present the author of an unpublished play must state the year of his copyright on his title-page, and as it is often ten years or more after a play is written before it secures a production, this telltale date proves a great drawback in submitting the play to managers, and therefore many authors prefer to run the risk of losing their plays rather than to affix this hall-mark of antiquity. The prospect of this increased revenue should be sufficient to induce the makers of the law to reduce the copyright fee on unpublished works. I should recommend also that a specific clause be added making it a misdemeanor to copy from an unpublished manuscript any portion without authority, or to be found in the possession of an unpublished copyrighted manuscript or parts thereof without authority. This would correct two grave abuses, one, the stealing of an author's ideas and dialogue by a manager to whom the play might be submitted, and the second, the stealing of manuscripts after a play is produced. One bureau openly advertises and continually sells for a few dollars manuscripts of produced plays, and the sale of such manuscripts enables infringers to deprive authors of great sums in royalties. The adoption of such a section as this will, of course, be sharply contested, but there is absolutely nothing inequitable in it for any person not intending fraud. It might also be well to deny the privilege of copyright to authors who allow their plays to be publicly performed without first securing a copyright. I trust that none of these suggestions will be taken as a criticism of the proposed law, which will confer great benefits upon and will greatly stimulate native art, but I am confident that the importance of some of the proposed additions and the convenience of others will at once be seen. Allow me to thank you for your courtesy in sending us the copy of the proposed law, and to request the favor of any further matter which the copyright office may have to issue upon the subject. Yours, respectfully, THE PLAYWRIGHTS LEAGUE CLUB, By EDWIN HOPKINS, _President_. BRIESEN & KNAUTH, COUNSELORS AT LAW, _New York, June 8, 1906_. REGISTER OF COPYRIGHTS, _Library of Congress, Washington, D.C._ SIR: On behalf of a number of clients, who are interested in the new copyright bill, we respectfully beg to suggest that in order fully to carry out the broad purpose of the framers of the bill, the bill should be amended substantially as shown in the accompanying draft amendment. The bill as it now stands does not provide for the registration, by means of one entry, of a great many works of literature or art which from necessity are printed on detached sheets. Section 60 of the bill provides that several volumes of the same book or a series of photographs, drawings, etc., relating to the same subject--with variances only in pose or composition--may be registered for one fee. But a connected series of instruction carded for educational use, a series of color prints to be used on toy building blocks, sliced animals, games of authors, and other card games are protected. There is no doubt that a new game, such as pit, flinch, etc., should be copyrightable as a unit, whether with or without rules for instruction, in such a manner that all the artistic work and literary work may be fully covered by copyright, although the items of the series are not physically connected, and are not each provided with separate copyright notice. While the experts in charge of the bill may be able to phrase this purpose in words more apt than those contained in the proposed amendment, there is no doubt that it is the intention of the framers of the bill to include the articles referred to in this letter, and also that the bill as it now stands does not cover such articles. Respectfully, BRIESEN & KNAUTH. _Proposed amendments to bill S. 6330._ Section 5, page 4, after line 7 insert "(m) Miscellaneous." Line 12, change period to colon, and add: "_And provided, furthermore_, That a series of copyrightable works, assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, fee and notice should the applicant elect, whether or not the items comprising said series are actually joined by binding or otherwise." Section 60, page 38, line 15, change period to comma, and add: "or of a series considered as the subject-matter of a single copyright registration as provided for in section 5 of this act, where the items composing it are deposited at the same time under one title with a view to single registration." Mr. Chairman, I ask leave to interpolate a word to the group of interests adverse to these "musical-device" provisions of the bill. I say it for the Government. And in order to avoid a syllable more than is necessary I have written it. The reasons, gentlemen, why your group was not invited to the conferences were made plain in my opening statement. First, the conference was a conference of associations, and your interests are not organized into an association. But, second, the conference was to be particularly of those interests concerned "in an affirmative way"--that is, in amplifying the copyright protection; and your interests are negative. We quite anticipated the issue raised by these provisions, but it was not an issue which seemed appropriate to the conference nor for other reasons one likely to be settled by the conference. Mr. Thomae represented that his interests might in one aspect be affirmative also and asked to hear the discussion. He was permitted to. He was not invited; he did not participate; he uttered not a word in the course of the entire proceedings. But he asked to come and listen, and he was permitted to. On the list of the few others present as observers you will find the name of Gen. Eugene Griffin. General Griffin came to us in March saying that he understood some such provisions as these were under consideration; he had some interest in a concern which would be affected; could he attend the conference and hear what was proposed? Certainly. And he did. Mr. Thomae was to us but the maker of a particular typical device. With Mr. Thomae as a competitor among you we had no concern. What device or company General Griffin was interested in we did not know and I do not know to this day. But we took care to insert the names of both gentlemen on the printed list of those present, so that you and others might be free to make such inference as you chose from the fact of their presence. And this list was furnished freely to all requesting it. These conferences have been going on for a year past. The fact that they were being held, their purpose, and the associations participating in them was freely published. Among these associations were the composers and the music publishers. In the Apollo suit then pending they were trying to secure protection of this sort under existing law. There was every reason to suppose that they would urge it in the new statute. Did any of you ever inquire of us whether they were doing so? As long ago as last December the President announced to Congress, and in the most public way to the country, that the bill had already been prepared. Did you ask us for it? Did you even ask whether such a bill would be likely to include any such provisions? As long ago as January the music trade journals began to refer to the fact that it would do so. Did you then ask leave to come to the next conference? Did you ask even as to the character of the provisions? Did you communicate with the Copyright Office in any way in the matter? You know you did not. The fact that you did not is not to prejudice you in any way, and the fact that you did not participate in the conferences I have myself emphasized to the committee to your advantage, pointing out that these provisions had been inserted without discussion at the conferences by any interest naturally adverse to them. The fact is to your advantage. I earnestly suggest that you avoid giving it a twist such as Mr. Cameron gave it yesterday; I mean by such expression as "star chamber proceedings." We can't let such imputations against the Government stand uncorrected. But we hate to have to divert attention from the main issue in order to correct them. The main issue is the merit of these provisions. We are as anxious as is the committee to know your substantial objections to them. And our interest is absolutely identical with that of the committee in seeing that the objections you show shall have due value and effect. (The following letter was subsequently written by Mr. Putnam, and by direction of the chairman made part of the record:) JUNE 16, 1906. Messrs. CHAIRMEN: In my remarks to the representatives of the talking machine and perforated roll interests at the hearing of June 9 I stated that Mr. Thomae had not been "invited" to the conferences. Of course he was invited or he could not have attended. What I meant was that he was not among those originally invited or in our list of those naturally entitled to be present. I had thought the distinction sufficiently clear from the context; but I find that it was not. The chief purpose of my reference to him and to General Griffin was not, of course, to excuse or explain their presence, but to indicate how readily access to the conference could be secured by a request to the copyright office. Very respectfully, HERBERT PUTNAM, _Librarian of Congress_. The CHAIRMEN OF THE COMMITTEES ON PATENTS OF THE UNITED STATES SENATE AND HOUSE OF REPRESENTATIVES. Mr. CURRIER. I wish to say that last winter some time Mr. Griffin, who is interested in one of the perforated-roll concerns, called at the committee room and talked about this matter, and I advised him at that time to see Mr. Solberg and Mr. Putnam. The committee clerk has had some correspondence with him since that time, and other gentlemen connected with that same business, I suppose, have been into the committee room to make inquiries regarding this matter pretty nearly every week for months. Mr. CAMERON. I would like to say that I do not even know who Mr. Griffin is. Mr. CURRIER. He is the vice-president of the General Electric Company. I think he lives in Brooklyn and is connected with some perforated-roll company. Mr. CAMERON. I wish to point out that the remarks that I made were in connection with the American Graphophone Company and the automatic talking machine, and not the perforated-roll business. That is the matter that is involved in these suits, not the talking machines. Mr. BURKAN. Mr. Griffin represents the Edison Company, and they manufacture talking machines. Mr. DAVIS. Mr. Griffin does not represent the Edison Company, and he is a director of the Perforated Music Roll Company, who operated under my patents. General Griffin is now in Europe, and this notice which I referred to yesterday, in which I stated that notice was given me that my license would be canceled in case this bill passed, came from Mr. Henderson, the acting manager of the Perforated Music Roll Company, on behalf of General Griffin and other directors. Mr. Henderson notified me that the passage of this act would put them out of business. He also stated to me that General Griffin had stated to him that he attended these conferences, and that he considered them logrolling proceedings, and that in time he would take action to oppose them. But at present General Griffin is in Europe. I am sure, from his remarks, that he would oppose this measure in the strongest possible way. Mr. CURRIER. I have no doubt that he would. He gave me so to understand. Mr. CHANEY. I think it is due to this record to say that the ultimate responsibility about this whole matter rests with Congress, and that these matters are all simply advisory, to help us to the proper conclusion and result, and that none of these gentlemen are going to be deprived of an opportunity to express themselves in whatever way they please, and to say whatever they may have to say, and that, so far as we are concerned, there is no star-chamber proceeding about it, and no logrolling business about it. We are here simply to get advice the best we can, and therefore we shall undertake to hear everybody. The CHAIRMAN. Mr. Chaney is entirely right. The sentiments that he has expressed have been freely stated by the committee during the past three or four days that we have been in session. The committees of the Senate and the House are willing, and will be willing, to hear anyone who has objections to or who is in favor of this bill at any time within any sort of reason. It seems to me that it is to little purpose, so far as the committees are concerned, that there should be any controversy between anyone regarding the past. Who is the next witness? Mr. CURRIER. I might say that it was for that reason that both committees decided to make no effort to report this bill at this session, but to let it go over until next winter, in order that people could have an opportunity during vacation to file briefs and such statements as they might desire to offer. The CHAIRMAN. That is the precise purpose of the statement made by Mr. Currier in behalf of the House committee at the first session or the second, and by myself in behalf of the Senate committee. Who is the gentleman that desires to be heard further? Mr. PUTNAM. Mr. Cromelin. The CHAIRMAN. You have how many minutes? Mr. CROMELIN. I understand that I have half an hour. The CHAIRMAN. You were limited, two days ago, to one hour for your enterprises. Mr. O'Connell had a little over an hour, and I am told that after I was compelled to leave for the Senate yesterday somebody representing these interests had fifteen minutes. We will give you fifteen minutes, with the privilege of submitting in writing any further statement that you desire to make. Mr. CURRIER. It is necessary to do that, for the reason that two gentlemen are on the way here from Chicago who want to be heard this morning, representing the same interests that you represent. Mr. SERVEN. I present, Mr. Chairman, a letter from the chairman of the copyright committee of the Music Publishers' Association, explaining how Mr. Thomae, who was criticised yesterday as being one of their delegates, came to have a seat with them in the conferences. It occurred to me that it would save time to have it read for the information of these gentlemen. The CHAIRMAN. You may put it in the record. (The letter referred to is as follows:) The CHAIRMAN OF THE JOINT SENATE AND HOUSE COMMITTEES ON PATENTS. _Washington, D.C._ DEAR SIR: I beg to make reply to an accusation against the Music Publishers' Association of the United States yesterday by the manufacturers of mechanical perforated music rolls, cylinders, and disks, in which they claimed our association had corralled into its ranks, by promise and contracts, the Victor Talking Machine Company, of Camden, N.J. They further claimed that the Librarian of Congress had made no attempt to seek them out and give them representation at the various conferences he had called for the purpose of securing suggestions from organizations of authors, composers, and others interested in receiving copyright protection for their productions. I beg to state that the copyright department during the interim between the first and second conferences conferred with me and asked if the talking machine and music roll manufacturers had an organization. I replied that I did not know but would inquire about it. About that time I met Mr. R. L. Thomae, a representative of the Victor Talking Machine Company, who had just drafted a bill with the view of presenting it to Congress, for protection on musical compositions for which his company had secured the right, having expended about $35,000 for well-known artists who had sung in the records for them. They wanted protection from the pirates in their own business from copying such valuable subjects. As a result of our talk Mr. Thomae decided to drop the bill and secure protection in the new copyright draft which was then being formulated. Mr. Thomae and myself made a trip to Washington, called on the copyright department, and it was agreed, in view of the fact that the talking machine people had no organization, that the delegates from the Music Publishers' Association should be increased from two to three, provided the third member was some representative of the talking-machine interests. After conferring with the president of the association it was decided to do this, and Mr. Thomae was selected as such representative. We believe that the talking machine people should have as good protection as ourselves on their original or characteristic works embodying the personalities and instrumentation of their artists, bands, orchestras, etc., employed by them. We hereby declare that the Victor Talking Machine Company has no contracts of any kind whatsoever with any member of the Music Publishers' Association of the United States in regard to any future purchase for use of compositions belonging to us. This statement will explain in detail how the Victor Talking Machine Company came to be associated with the Music Publishers' Association in the copyright conferences held to aid in drafting the bill here under consideration. All statements to the contrary are not substantiated by the facts. On behalf of the Music Publishers' Association of the United States, whose list of members is attached, I beg to remain, Sincerely, yours, GEORGE W. FURNISS, _Chairman Copyright Committee_. _Members Music Publishers' Association, June, 1905 to 1906._ Allbright Music Company, Chicago, Ill. Anthony Brothers, Fall River, Mass. Ascher, Emil, 24 East Twenty-first street, New York. Biglow & Main Company, 135 Fifth avenue, New York. Bloom, Sol, Forty-second street and Broadway, New York. Boosey & Co., 9 East Seventeenth street, New York. Bouvier, A. J., Fall River, Mass. Chandler-Held Company, 439 Fulton street, Brooklyn, N.Y. Ditson, Chas. H., & Co., 867 Broadway, New York. Ditson, J. E., & Co., Philadelphia, Pa. Ditson, Oliver, Company, Boston, Mass. Ellis, Jno. F., & Co., Washington, D.C. Feist, Leo, 134 West Thirty-seventh street, New York. Fischer, Carl, 6 Fourth avenue, New York. Fischer, J., & Bro., 7 Bible House, New York. Frain Publishing Company, 20 West Fifteenth street, New York. Francis, Day, & Hunter, New York. Goggan, Thos., & Bro., Galveston, Tex. Gordon, H. S., 1241 Broadway, New York. Groene, J. C., & Co., Cincinnati, Ohio. Hald, J. R., Company, 337 Wabash avenue, Chicago, III. Harms, T. B., Company, 126 West Forty-fourth street, New York. Harris, Chas. K., 31 West Thirty-first street, New York. Haviland, F. B., Publishing Company, 125 West Thirty-seventh street, New York. Jacobs, Walter, 165 Tremont street, Boston, Mass. Lyon & Healy, 199 Wabash avenue, Chicago, Ill. Mills, F. A., 48 West Twenty-ninth street, New York. Molineux, Geo., 150 Fifth avenue, New York. Novello, Ewer, & Co., 21 East Seventeenth street, New York. Parks, J. A., Company, York, Nebr. Paull, E. T., Music Company, 46 West Twenty-eighth street, New York. Remick, J. H., & Co., 45 West Twenty-eighth street, New York. Rohlfing Sons' Music Company, Milwaukee, Wis. Schmidt, Arthur P., 146 Boylston street, Boston, Mass. Schuberth, E., Company, 11 East Twenty-second street, New York. Sherman, Clay, & Co., San Francisco, Cal. Stern, J. W., & Co., 34 East Twenty-first street, New York. Summy, Clayton F., Company, Chicago, Ill. Swisher, M. D., 115 South Tenth street, Philadelphia, Pa. Thiebes-Stierlin Music Company, St. Louis, Mo. Thompson, C. W., & Co., 13 West street, Boston, Mass. Thompson Music Company, 169 Wabash avenue, Chicago, Ill. Vandersloot Music Company, Williamsport, Pa. Victor-Keemer Company, Chicago, Ill. White-Smith Music Publishing Company, Boston, Mass. White-Smith Music Publishing Company, Chicago, Ill. White-Smith Music Publishing Company, 13 East Seventeenth street, New York. Whitmark, M., & Sons, 144 West Thirty-seventh street, New York. Witzmann, E., & Co., Memphis, Tenn. Wood Music Company, The B. F., Boston, Mass. York Music Company (A. von Tilzer, manager), New York. STATEMENT OF PAUL H. CROMELIN, ESQ. Mr. CROMELIN. Before proceeding, I would like to make this point clear: That Mr. O'Connell yesterday, in appearing before your committee, was representing the perforated-roll interests. I represent the talking-machine interests, which means more in dollar capitalization than the perforated-roll interests. I trust, while I shall endeavor to finish my remarks in fifteen or twenty minutes, that if General Walker is willing, you will extend my time to half an hour. The CHAIRMAN. We are compelled to limit you absolutely to fifteen minutes. Mr. CROMELIN. Very well, sir. Mr. Chairman and gentlemen of the committee, on behalf of the Columbia Phonograph Company and the Columbia Phonograph Company, General, sole sales agents for the American Graphophone Company, I protest against those portions of the proposed copyright law by which it is proposed to extend the copyright protection to reproductions to the ear, so as to include under the term "writings," as this term is used in the Constitution of the United States in the protection of authors and composers in their writings, mechanical or other reproductions to the ear; and, in particular, in so far as this bill may be construed to cover talking machine sound records in any form soever. In view of the fact that you are going to limit me to fifteen minutes, I think it best that I should state specifically my reasons for opposing this bill, and I have put them down in writing. I have fifteen specific reasons, and I would request that during the time I am stating these reasons I shall not be interrupted. I invite the committee at the conclusion of my statement of these specific reasons to ask any questions they wish, and I request permission to appear before the committees at some future time, during the recess of Congress, to explain in detail all the statements that are made. Without attempting to elucidate, gentlemen: First. We protest that such legislation, in so far as it relates to talking machine sound records of any kind, is unconstitutional. Second. That such legislation is against public policy and directly contrary to the spirit and progress of the times. Third. That the demand for such legislation does not emanate from the great mass of the musical authors (composers), nor is it demanded by them, but has been conceived by certain selfish individuals who have conspired together to form and create a giant monopoly, the like of which the world has never known. Fourth. That such legislation, instead of being in the interest of the composers, is directly opposed to their real interest, which is to have the greatest possible distribution of such records as the best means for creating a demand for their sheet music. Abundant evidence can be furnished to sustain this fact, if desired. Mr. CURRIER. It is desired. Mr. CROMELIN. Fifth. That it is class legislation in the interests of the few as opposed to the enjoyment and happiness of the masses, whose rights seem regularly to have been lost sight of during its preparation, and that it is particularly vicious when the rights of the poor are considered. Sixth. That in so far as the question of copyright must of necessity be viewed from an international standpoint, it is inadmissible, intolerable, and distinctly un-American to grant to foreign composers the right to extract toll from every American citizen where such right is denied such foreigner at home in his own land and is denied to American composers abroad. I hope during the recess to explain my connection with this matter. I was the representative of my company in Berlin, Germany, for four years, and had occasion to appear in this very matter; and I want to warn you gentlemen against what happened there. I trust that freedom will be given to all mechanical musical instruments and that no Æolian monopoly will be able to tack on a provision which will give them perforated-roll rights and exclusive rights. I propose to show that this monopoly is not of a national character, but the attempt to create it is an international conspiracy. Seventh. That such legislation is directly contrary to all recent legislation in foreign countries, the most important of which is the act of the German Reichstag in 1901, by which perfect freedom is given to use copyrighted works for the purpose of mechanical reproduction; and by which, by reason of an interpretation announced by the minister of justice prior to the third reading of the bill, the right to record and reproduce any copyrighted work by means of talking machines was expressly permitted. Eighth. That such legislation is contrary to the spirit of the Berne convention. Ninth. That in no other country is substantially like protection afforded to composers, but that such protection has been universally denied. Tenth. That even if such rights were granted under the laws of Great Britain, Germany, France, Belgium, and other countries, which they are not, it is beyond the power of Congress to do other than that which it is expressly permitted to do under our Constitution, and the only way by which such a law could be enacted which would stand the test of the highest court of judicial inquiry would be by an amendment to the Constitution of the United States. On behalf of my company, I protest against being plunged into such long and expensive litigation as would necessarily ensue if this bill becomes a law, unless the necessity for the same is urgent, and this I emphatically deny. Eleventh. That such legislation is in direct contradiction to all recent judicial decisions on the subject in this country and abroad in which common law rights and statutory rights of authors and composers, their scope, extent, intent, and purpose have been discussed, the most noted of which in this country is the decision handed down by the United States circuit court of appeals, second circuit, during the last week of May, in the Æolian suit against the Apollo Company, Judges Lacombe, Townsend, and Coxe, without a dissenting voice, approving and upholding Judge Hazel's opinion rendered in the court below sustaining the contention that the perforated roll is not a violation of the copyright, and it is interesting to note that the court went out of its way to say: The argument that because the roll is a notation or record of the music it is, therefore, a copy would apply to the disks of the phonograph * * * which it must be admitted is not a copy of the sheet music. In England the same position is taken by the courts, the leading and most recent case being Boosey _v._ Whight, in which it was clearly held that the perforated roll was not a violation of the copyright. In Belgium, by decree of the fourth chamber of the court of appeals in Brussels, December 29, 1905, in the case of Massenet and Puccini, composers, _v._ Ullman & Co. and Pathe Frères, manufacturers, in dismissing the suit, with costs, the court uses this language--I want to say to you, gentlemen, that this was a graphophone case: Considering that these apparatus can not be assimilated to the writing, or the notation by an engraving process, of the thoughts of the author; that they have nothing in common with the conventional signs permitting reading or comprehension of the work to which they are related; that isolated from the rest of the instrument they remain in the actual state of human knowledge, without any utility, that they are only one organ of an instrument of execution. In dismissing the suit the court referred to a similar suit decided in France February 1, 1905, in which it was confirmed that-- airs of music on disks or cylinders of graphophones and gramophones do not constitute a musical infringement. Twelfth. That the proposed legislation in so far as relates to mechanical reproductions is in furtherance of the plans of certain powerful interests to obtain a monopoly--an international monopoly--on mechanical reproducing instruments of all kinds, and that they are attempting to use the legislative branch of the Government to secure that which has been repeatedly denied them by the courts. Thirteenth. That it is vicious, in that if it is permitted to be enacted into law it will deal a deathblow to great American industries which have been extended until now they embrace all countries, and in which millions of dollars have been invested in the knowledge that the right to manufacture was perfectly lawful and that the right to continue such manufacture, unhampered by such ruinous conditions as would be imposed by this bill, could never be brought into question or become the subject of serious dispute. Fourteenth. That if this bill becomes a law it will seriously affect the rights of thousands upon thousands of American citizens who have purchased these machines and who have the right to expect to continue to use them and to obtain the supplies for them at reasonable prices instead of paying tribute to a grasping monopoly. Fifteenth. And finally, that whatever arguments may be advanced by the association of musical publishers (and their allied interests, whose representatives framed the bill, and who, if it becomes a law, will get 99 per cent of the benefits to be derived therefrom), regarding other methods of mechanically producing sound on the theory that the same constitutes a method or system of notation and under certain conditions may be read by persons skilled in the art, under no circumstances can such arguments be truthfully advanced to cover or apply to talking machine sound records. No man living has ever been able to take a talking-machine record and by examining it microscopically or otherwise state what said record contains. In this sense it stands preeminently in a class by itself, being unlike perforated rolls, cylinders containing pins, metal sheets, and other devices used in mechanical production of sound, and is not to be likened in any manner to the raised characters used in methods of printing for the blind, where by the sense of touch the meaning is intended to be conveyed. The sense of touch is a mere incident due to the disability of the blind, but it is perfectly feasible and easy to read the characters with the eye, and they are very properly the subject of copyright. I repeat, that to attempt to decipher a phonograph disk is in the very nature of the proceeding "reaching for the impossible." How utterly preposterous and ridiculous it would be to pass this act in its present shape, which would make a telegraphonic sound record, which is something that can not even be seen--the record itself being caused by the magnetization and demagnetization of an electric current of an ordinary piece of wire or a cylinder or disk of steel--a violation of the copyright laws. You have seen several examples, gentlemen, of methods of reproducing sound. Mr. Cameron showed you yesterday the disk form of talking-machine record. [Exhibiting disk.] That record, if you were to examine it under a microscope, is an engraving of the sound, which is produced by a method wherein the sound waves are engraved laterally at a uniform depth. Another form is the cylindrical record. Mark you, gentlemen, our company is the only one on earth that manufactures both forms. We are vitally interested in this legislation. In the cylindrical record the cut is of uneven depth. It is an up-and-down cut. There are other methods, and one or the most important discoveries of the age--a discovery which was considered of so much importance that at the St. Louis Exposition of 1904 it was given great prominence in the Government exhibits--is the telegraphone. I have here a record [exhibiting record] and I would like to ask Mr. John Philip Sousa if he can recognize "The Stars and Stripes forever" upon it. I would like Mr. Bowker, who stood up yesterday and said that he could read the music roll--which I emphatically deny--whether he recognizes an address of Mr. Victor Herbert upon this form of record [exhibiting record]? I doubt very much whether these persons who have come down here for the purpose of putting through this legislation have ever seen this thing. They do not know what it is, even. That is the sound record. I do not know what it is. Nobody knows what it is until you put it on the machine. Yet it can be reproduced indefinitely, and it can be destroyed by that peculiar power which we know not, because no one knows at the present time what electricity is. I want to tell you what you are doing: When you pass this bill and make it a law, you make that piece of steel copyrightable [indicating]. You make this record spring copyrightable. You do not see anything on it. Look at it closely. There is nothing but a magnetic current--an electric current--by which the sound is actually recorded and can be reproduced indefinitely. I regret, gentlemen, that I am not able to show you; and I hope at the sessions of Congress, or during the recess, to personally demonstrate what I am bringing to your notice this morning. There is one other point I would like to bring to the attention of you gentlemen, and that is this: That in the cylindrical form of talking machine it is not necessary for the manufacturer to make the roll. In every other mechanical instrument which has been referred to here the process is a factory process; but, as I am speaking, the very words that I am uttering are being taken down by Mr. Hanna, and in less time than an hour these words will be transferred to a graphophonic record; and by that means to-morrow morning you will get your printed record. For fifteen years the reports of the House of Representatives and the Senate of the United States have been prepared in this manner. And now, when you make this bill a law I can not, notwithstanding the fact that I have purchased a piece of music of Mr. Herbert, take that which I have purchased and sing it into my machine at all. It is impossible to do so. I wish to draw this fine distinction, and show you that in the cylindrical form of talking machine it is not a mechanical operation which is done in a factory, but that it is an instantaneous form of photographing the voice. I would like to have a notation made of that. You have limited me as to time, but before closing I want to show you what the practical operation of this bill would mean. The CHAIRMAN. Your time has expired. Mr. CROMELIN. May I have just one moment? The CHAIRMAN. You may have one minute more. Mr. CROMELIN. I would like to show you the point of the multiplicity of royalties. Under this law I go down to John F. Ellis's and buy a sheet of music composed by Mr. Victor Herbert. I pay the royalty at the time that I buy that music. I am a singer and I want to sing it. I go to a talking-machine company; but no, I do not dare. I must seek Mr. Herbert. And he says: "You are going to make a big sum on it, and you must pay me $25." I pay him $25, and I go to the talking-machine company and the company does not dare to proceed. They must first seek Mr. Herbert. Mr. Herbert says: "You are going to make a lot of money out of this; I want $100 before you can make the record." We pay that for the record. I do not know when I get the record whether I am going to get a thing. It goes through a factory process, which costs me another hundred dollars, and then the record is made. I am about to announce the record to the people of the United States, and to give them the privilege of hearing it. What happens? No; I do not dare to do it. Every American has to pay tribute to Mr. Herbert. Before I can sell those records Mr. Herbert must get a royalty of 10 per cent on every one of them. I do not believe it is the meaning of the Constitution to do this. Let us go one step further. At a recent banquet in Portland, Oreg., of the "Ad. Men's Association," by arrangement with the telephone company, over the seat of every person who participated in that banquet there was a little horn attached to the telephone, and there was a Columbia graphophone at the central office. But if this bill becomes a law the telephone company would not dare do that. They would not dare give the people in the country the privilege of an evening's entertainment, where they can not get to the big cities, without first arranging with Mr. Herbert. Mr. Herbert would say: "No; you can not do this. I want a hundred dollars' profit before you do that." After you have done it, everybody who pays a toll of 5 cents for an evening's entertainment to the telephone company pays its tribute to Mr. Herbert. I do not believe that that is the intention of you gentlemen. I regret that I am so much limited as to time, and I hope to appear before you during the summer session, as I believe that I can throw some new light on the situation. Mr. CURRIER. You gentlemen speak of the committee holding sessions during the summer season. The House has no such authority. The members of the House are likely to have a very busy season, and it will be impossible to get the House committee here during the summer. But the House committee will be here on the first Monday in December, ready to hear you gentlemen. Mr. CROMELIN. I thank you very much for your attention. Mr. CHANEY. In the statement that you submit I would like to have you make it specific as to which sections you object to, and make your argument apply to those sections. Mr. CROMELIN. I shall be glad to do that. Senator SMOOT. And let it follow your remarks in the record? Mr. CROMELIN. Yes, sir. STATEMENT OF ALBERT H. WALKER, ESQ., OF NEW YORK. Mr. WALKER. Gentlemen of the committee, I sincerely thank you for the compliment implied in giving me an hour in which to express my views upon this bill. The allowance is liberal, and it will not be extended except at the request of the committee. My hour will be an hour of sixty minutes, and my remarks will end at twenty minutes before 12, if they end in the middle of a sentence. I do not appear in behalf of any particular interest, although I have one client which is interested in one section of the bill. I do not propose, however, to address myself particularly to the interests of that client. I do propose to address myself to the bill as a whole. I think that the gentlemen who prepared this bill are to be thanked by the committee, and by the people of the United States, and by everybody else, for the large amount of labor which they have devoted to the preparation of that proposition for legislation. I particularly desire to express my personal appreciation of the labors of Mr. Putnam--his entirely disinterested and very skillful labors in the preparation of the bill. We have had copyright laws in this country now for exactly one hundred and sixteen years, and none of them have been scientific; none of them have been systematic; none of them have been well developed. It is high time that the whole system of legislation upon the subject should be put upon a scientific basis and should be developed in a scientific form. This bill is a sincere attempt to accomplish that result. It contains a number of provisions which I heartily approve. It contains much that I think ought to be amended. I trust that out of this bill, and before the end of the present Congress, a bill will be evolved which will be enacted into law, and which will be just as to all parties and of very much benefit to the American people, and of benefit to the composers and the authors, who are the particular subjects of the bill. I believe, however, that before that result is accomplished extensive amendments must be made in this bill. I am going to devote the first ten minutes of my time to stating the principles upon which I think those amendments ought to be framed, and after that I am going to apply those principles to portions of the bill, to show what changes would result from the application of those principles to the bill. In order to say what I intend to say on the subject of principles, it will be necessary for me to indulge in a few moments of historical statement. When the scholar looks over the civilizations of history, he finds only one principle that pervades them all, and that principle is the principle and idea of the continuity of private property. China, Greece, Rome, Babylon, Nineveh, Judea, Egypt, England, Germany, Russia, the United States are all pervaded, as Japan is, by the notion of the continuity of private property. And when I speak of the continuity of private property I mean its continuous continuity, its hereditable character, its passing down from father to son, from age to age, and from generation to generation. My good friends Victor Herbert and John Philip Sousa, men whom I respect personally as well as professionally, are basing their desire for the passage of this bill upon the notion which they have that that idea of the continuity of private property inheres in their intellectual productions; and there is exactly where my brothers are mistaken. I am myself an author. I am an author of books and writings. A hundred of them probably have been published. I am the author of a very large number of addresses, which have been delivered without writing, on religious, historical, economic, legal, scientific, and miscellaneous subjects; but I know, as well as I know any proposition in history or in law, that I have not any element of private property in any of those intellectual productions, in the sense in which I am defining private property, namely, with the idea of continuity. Why is that so? It is so because from the foundation of the world until now there never was a nation and there never was a day when the idea of the continuity of private property was connected in the minds of men with intellectual productions. England has developed the idea of private property more fully than has any other nation; and England never ascribed the idea of the continuity of private property to any intellectual production, either for an invention or for a writing. To this day no man has a right in England to a patent on an invention, and never has had. The granting of any patent on an invention in England is dependent entirely upon the pleasure of Edward the Seventh; and the patents themselves, when granted, each one of them sets forth that fact, and states that Edward the Seventh thinks on the whole that it will benefit the realm to grant this patent, and proceeds to grant it. But if Edward the Seventh and those who represent him choose to decline to issue a patent in pursuance of any particular application they can do so in entire conformity with the laws of England. In respect to the protection of private property relevant to intellectual productions in the domain of books or musical compositions, this is the history in England: Prior to the time of Milton nobody had a right to publish anything in England without the permission of the Crown, and that permission was granted or refused, not with reference to the deserts or the merits of the author or the composer, but with reference to the opinion of the Crown as to whether or not the published thing would be beneficial or not beneficial to the public interests. And the Crown usually identified the public interests with the interests of the Crown, so that it suppressed what it desired to suppress and permitted to fly what it desired to be published. At the time of the Commonwealth publication became free and was free, but there was still no notion of any exclusive right to publish a particular literary or musical composition inhering in the author of that composition; and that right never did begin and never was heard of in England until the reign of Anne, when Parliament passed a statute establishing such a right for a limited time. In 1769 a copyright which had been issued under the statute of Anne had expired, and the owner of that copyright determined to test the question in the English courts as to whether or not there was a perpetual right of copyright under the common law of England, regardless of the statute of Anne, and the owners of that copyright brought suit for its infringement after the term established by the statute of Anne had expired; and the question whether such a common-law right existed or not came before the court of king's bench when Lord Mansfield was chief justice of that court. The court of king's bench decided, as an academic proposition, that there had been anciently an exclusive right to an intellectual production under the laws of England. That was, however, a purely speculative statement. They could not point to the time when anybody asserted any such right or to an instance when anybody had acquiesced in it. They simply took the ground, as an academic proposition, that anciently there had been such a right. They also decided, however, that whether that right existed or not, it had been ended by the statute of Anne, and that the statute of Anne circumscribed the right to the limited time provided for by that statute. From that decision or the court of king's bench the plaintiff appealed to the House of Lords, sitting in its judicial capacity. We sometimes have the notion that when the House of Lords sits in its judicial capacity all the peers of the Realm--500 in number--assemble together and hear the arguments and render a final decision, but it is not so. Only the law lords participate; and if an ordinary nobleman should venture to sit when the House of Lords was sitting in its judicial capacity he would be hooted out of the room, and his presence would be made to appear to him to be extremely unwelcome. The number of law lords that sat at the time of the hearing of that argument was 11, and 6 of them rendered the opinion that the statute of Anne was the only foundation known to the law of England for exclusive right to an intellectual production, and that therefore the plaintiff was not entitled to recover. That was the situation of the laws of England at the time of the foundation of our Union, at the time of the Declaration of Independence, and at the time of the framing of our Constitution. In 1787 our Constitution was framed, and the fathers inserted in that Constitution this provision: The Congress shall have power to promote the progress of science and the useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. That is the only foundation that exists for the patent laws of the United States, and it is the only foundation that exists for the copyright laws of the United States. It is true that a copyright when it is issued in accordance with the statute made in pursuance of that Constitution is property, but it is not property in the historic sense of property. It entirely lacks the notion of continuity. It entirely lacks the notion of permanency. It is a species of property created, and not arising out of the circumstances of civilization and human life, as property in general has always done, long preceding governments. It is a species of property created by the law-making power, and a species of property created by the law-making power in a matter not inherently subject to property right. In creating that particular property the constitutional convention was influenced by this consideration: We will not grant a permanent property right in any intellectual production, because in our judgment that would be inconsistent with the progress of civilization as a whole, but we can consistently, with the progress of civilization as a whole, grant a limited property right in an intellectual production. Therefore they did provide in the Constitution that though Congress might give to authors an exclusive right, the right must be limited in point of duration, and therefore Congress has not the slightest power to grant a permanent right in any intellectual production. Victor Herbert may hereafter, as I hope he may, rival some of the great composers of the past and produce music far better than the splendid music that he has thus far produced, but if he does it will be impossible for Congress to reward him and his heirs with a permanent absolute property right in any such intellectual production. The best we can do, Mr. Herbert, is to give you a limited right to your intellectual production. That limited right is limited not only in respect of duration, but it is limited in respect of quality, in respect of formal expression, and it is limited thus: There shall be, according to the constitutional provision, an exclusive right for a limited time and for a limited form of expression, and that limited form of expression is defined by the word "writings." Mr. Chairman and gentlemen of the committee, I have spent my laborious life as a lawyer, a scholar, an inventor, an author, and a lecturer. I have delivered hundreds of addresses that never were reduced to writing. I have delivered but few that were. In so far as I delivered those lectures that were never reduced to writing, I am not entitled, either by law or by ethical principles, to any exclusive right. I am entitled to an exclusive right to my intellectual productions only when I reduce them to writing and file them in the office of the Librarian of Congress, where they will remain a permanent monument, and can be handed down to future times and can be read and availed of by my contemporaries. The Constitutional Convention wisely provided that if the American people are to grant a monopoly in an intellectual production the man who makes that intellectual production shall give it to the American people; and he gives it to the American people by first furnishing them the fullest information of its character, in the case of a patent, or in the case of a copyright he gives it to the American people by consenting to the terms upon which it was issued, namely, that it shall be free after the expiration of the limited time for which it was granted. Further than that, in taking out a copyright, or in taking out a patent, the man consents that the copyright shall be confined to his writing, and shall not extend to any other form of expression of his intellectual idea. I am not alone in this. The Supreme Court of the United States is with me. Mr. CHANEY. Just a moment: It has not occurred to me that this is not either a question of continuity of property or a question of the quality of the property. It is simply a question of just to what extent people are to be given the control of their own writings, and as to just through what different forms they will be able to trace their property. Mr. WALKER. That is the question, and that is the exact question which I am going to address myself to now. Mr. CHANEY. Very well. Mr. WALKER. The case of the "Trade-Mark Cases" was decided by the Supreme Court of the United States in 1880, and it is reported in 100 United States Reports, at page 94. In that case the owners of certain collocations of words which they were using as trade-marks sought to sustain the validity of their trade-mark under the copyright law, holding that those words constituted writings which were copyrightable and which had been copyrighted. The Supreme Court unanimously decided that the statute which they invoked, which statute was abundantly broad enough to cover that provision, was unconstitutional, because although these collocations of words were writings in the literal sense they were not writings within the sense of the Constitution. In so deciding, the Supreme Court narrowed down the meaning of the word "writings" instead of extending it, by holding that the Constitution gives a monopoly not to writings in general but only to such writings as have some literary character and permanent value in themselves. This is the language of Justice Miller: And while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like. The case which the Supreme Court had before it on this subject next is the Sarony case, decided in 1883, and reported in 111 U.S., page 58. Mr. CHANEY. We had that yesterday. Mr. WALKER. In that case Mr. Sarony sought to sustain the validity of a copyright upon a photograph of that then very ornamental gentleman, Oscar Wilde. It turned out that in this picture which Mr. Sarony personally took of Oscar Wilde, in his esthetic costume at the time he captured the hearts of the American women by his highly ornamental appearance [laughter], Mr. Sarony had personally posed Oscar Wilde, so as to give him a peculiar beauty, which might not have been developed by the ordinary photographer; and the Supreme Court of the United States sustained the validity of that particular copyright upon the particular ground that Mr. Sarony put particular skill in the posing of the man so as to produce a particularly artistic effect. But if I should go into a photograph gallery and have somebody pose me who did not have that skill--and also because the subject would not admit of it, and would not produce any particularly attractive effect--and the attempt should be made to copyright that photograph, he would go right up against the decision of the Supreme Court in the Sarony case, and he would be told that the copyright was invalid, because it did not involve any intellectual effort in its production. Mr. CHANEY. I think your picture would influence the committee quite as much as Oscar Wilde's. [Laughter.] Mr. WALKER. Well, Oscar Wilde is dead, and not here to speak for himself; and I am living still. Mr. CHANEY. I hope you will live long, sir. Mr. WALKER. Thank you. The next case, and the last case in which these matters have been before the Supreme Court, is the case of Higgins _v._ Keuffel, decided by that tribunal in the October term of 1890, and reported in 140 U.S. In that case a copyright had been issued, in strict conformity with the copyright law of 1874, upon a label used for manufacturing purposes, as a label on a bottle or a package. There was no doubt whatever but what the copyright was in strict conformity with the statute, but the Supreme Court held that the statute was unconstitutional, because although the label was a writing, it was not a writing in the sense that the Supreme Court had defined that word in the Trade-Mark cases. Here Justice Field delivered the opinion of the court, and he said: The clause of the Constitution under which Congress is authorized to legislate for the protection of authors and inventors is contained in the eighth section of Article 1, which declares that "the Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." This provision evidently has reference only to such writings and discoveries as are the result of intellectual labor. It was so held in the Trade-Mark cases, where the court said that "while the word 'writing' may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original and are founded in the creative powers of the mind." In the year 1888, a suit was brought in the United States circuit court for the eastern district of Massachusetts for the purpose of subjecting a perforated roll like one of these [exhibiting] to the domain of a copyright upon a sheet of music which had been lawfully and regularly copyrighted. That case was elaborately litigated, and was the subject of argument on both sides before his honor, Judge Colt, then the circuit judge and now the chief judge of the circuit court of appeals for the first judicial circuit. Judge Colt in that case, commonly called the McTamanny case, gave an elaborate and learned decision to the effect that this perforated paper roll, or any sheet of perforated paper like it, intended for the mechanical reproduction of a tune, did not infringe a copyright upon the tune thus reproduced. That was in 1888, and that decision was universally acquiesced in by all the judges and all the people of the United States for thirteen years. During that thirteen years a number of gentlemen devoted themselves to making the machines, pianolas, or whatnot, that are capable of being used with these perforated sheets; and among those gentlemen is the modest and excellent inventor, Mr. Davis, who appeared before the committee yesterday. Those men proceeded in full reliance upon the decision of Judge Colt, acquiesced in by everybody that they had a perfect right to perforate those sheets of music and use them in mechanical playing instruments; and great amounts of ingenuity have been devoted to the development of that particular art, and large amounts of capital have been devoted to it, in full reliance upon the decision of Judge Colt, in which everybody acquiesced. But the Æolian Company, of Meriden, Conn.--and in the statement that I am about to make I am going to state what is true; I can not prove the statements here to-day, but I could prove them if the committee should sit and take testimony and send for persons and papers---- Senator SMOOT. You can file the proof, can you not, Mr. Walker? Mr. WALKER. It would be like a big litigation to do so, and it would be putting a very heavy expense upon me that I would hardly be called upon to bear. But I can tell you how I know. Mr. CURRIER. If the statements that you are to make now are not true, gentlemen can controvert them. Mr. WALKER. Certainly. They have had chances to controvert them heretofore. This is not the first time that I am making these statements in public. I have made them in court over and over again, and they have passed entirely unchallenged, because they are perfectly true. The Æolian Company made certain contracts with a large number of members, and I think with every one of the members of the Musical Publishers' Association---- Mr. BURKAN. I beg to deny that---- Mr. CURRIER. Later on you can be heard, if you wish. Mr. WALKER. A gentleman showed me one of the contracts to-day, and I have it in my pocket. Mr. BURKAN. It was the one offered in evidence. Mr. WALKER. I can not be interrupted. I am telling what I know to be true. The CHAIRMAN. You shall not be interrupted, Mr. Walker. Mr. WALKER. Thank you. The Æolian Company made contracts with nearly all or all of the members of the Musical Publishers' Association. Each of those contracts provided as follows: That the particular member of the Music Publishers' Association granted to the Æolian Company the exclusive right to make perforated sheets of paper to play the tunes represented by all of the music published by that particular publisher; and that contract also provided that the Æolian Company should never pay any money for that exclusive right until the Æolian Company succeeded in getting some court to decide that the copyright laws covered the perforated paper roll. That contract also provided that the Æolian Company should pay all the expenses of some test suit made for the purpose of testing that question. In pursuance of that contract, the Æolian Company caused the White-Smith Music Publishing Company to bring a suit against the Apollo Company, in the southern district of New York, upon a couple of little negro melodies, one of which was entitled "Little Cotton Dolly" and the other of which was entitled "The Kentucky Babe Schottische." I fancy that the copyright on both those negro melodies was not worth as much as a dollar and a half, and that certainly $3 would cover the value of both of them; but they answered the purpose of a test case. The Æolian Company poured out money like water in that litigation, and endeavored to secure from the United States courts a reversal of the decision of Judge Colt, which had been made many years before. In the course of that litigation I was retained by the Automusic Perforating Company, which was not a party to this litigation, but which had an interest a hundred times greater than that of the nominal defendant. In pursuance of that retainer I presented a petition to Judge Hazel, before whom the case was heard, and in that petition I asked that my client be made a defendant. And I set forth in that petition the whole Æolian scheme in full, with all the clearness of statement of which I was capable, and it was sworn to by my client. When that statement was filed before the judge, a printed copy was served upon the attorney for the Æolian Company, Mr. Charles E. Hughes, one of the ablest men in the United States, who has distinguished himself in the recent insurance investigation in New York. Anything that he does not think of is not likely to be worth thinking of, and when he put in, as he did, an elaborate brief in reply to my petition, he did not controvert one solitary word of the statement of evidence set forth in the petition about the inherent character of the Æolian scheme, which he would have done if he could have done so. The CHAIRMAN. What was his reply--raising questions of law? Mr. WALKER. I do not think his reply amounted to a row of pins. The CHAIRMAN. Is that a matter of printed record? Mr. WALKER. His reply? I have a copy of his brief in my office in New York. The CHAIRMAN. Will you send that to the committee? Mr. WALKER. I will; yes. Senator CLAPP. And your petition? Mr. WALKER. Yes. Mr. SULZER. He raised the question of jurisdiction in his reply, did he not? Mr. WALKER. No; not at all. Mr. SULZER. What was his reply, if you remember? Mr. WALKER. I would rather not tell, because I do not think it is particularly creditable to Mr. Hughes. Mr. SULZER. You just complimented him very highly. Mr. WALKER. And I do not desire to deduct anything from that compliment. Mr. BONYNGE. You are going to file a copy of it, are you not? Mr. WALKER. Yes; but my time is limited, and if I gave the honorable gentleman from New York an account of that it would take me ten minutes to do so. The CHAIRMAN. You will have an opportunity to inspect his reply and that petition when we have the records here. Mr. WALKER. Now, let me tell you the rest of the story. His reply did not contain a word controverting my statements of fact in the petition. He did not take any issue with the statements of fact in the petition at all--not the slightest. But so far as his reply contained any matter at all, it was first of all an attempt to show that my client was not entitled to be admitted as a defendant anyway, and that, if I was entitled to be heard, he took the ground that my argument was not very conclusive. He did not reflect upon the petition at all; his reply applied entirely to my argument. Judge Hazel afterwards overruled the petition, and the same day that he overruled the petition he decided the case in favor of the defendant, and followed my brief in his decision. So that the intellectual origin of Judge Hazel's decision can be traced back to the brief that I filed in pursuance of the petition which he overruled. Very well. The Æolian people then caused that case to be appealed to the circuit court of appeals. When the case came up there I filed a petition in that court to be permitted to argue the case on behalf of the defendant, and also file a brief, both of which petitions were granted. In that petition I repeated the whole Æolian story over again, and I served a copy of that petition on Mr. Hughes a week before the argument came up, and he had abundant opportunity to reply to it. I also called him up and asked him if he was going to reply to it, and he said "No." And when he came to the argument he was as silent as the grave; though he had nearly two hours for his speech, he was as silent as was the grave in respect to all the allegations I had made about the inherent character of the Æolian scheme, and confined himself entirely to attempting to persuade the court that a perforated paper roll was an infringement of sheet music, and that however unconscientious the Æolian scheme might be as the representative of the Æolian company it was entitled to the pound of flesh. And that was the way he met the second presentation of the Æolian scheme. Afterwards, two weeks ago yesterday, the circuit court of appeals for the second circuit decided against him again. Mr. BONYNGE. How long ago? Mr. WALKER. Two weeks ago yesterday. Mr. CURRIER. The decision is in the record already. Mr. WALKER. Certainly. Now, I wish to say this to the committee, that that Æolian scheme is the most ingenious scheme that I ever knew to be invented by anybody in this country for the purpose of acquiring wealth by means of a patent or a copyright monopoly. And, further than that, I wish to say that the Æolian scheme is so ingenious that it does not violate any law whatever except one, and that is the golden rule. You can not square the Æolian scheme with the Sermon on the Mount, but you can square it with the Sherman antitrust act, and you can square it with every statute on the statute books. They have dodged a violation of every statute in inventing their scheme. And now they lack nothing at all to consummate their scheme except for Congress to pass this bill in the form in which it is drawn. That will place the capstone upon the monument, and will give to the Æolian Company a million of dollars a year out of the pockets of the people of the United States. And of that million of dollars they will keep at least $900,000, and about $90,000 of the rest will go to the music publishers, and not one cent over $10,000 of the whole million will go into the pockets of any music composers during their natural lives. In the nature of the case it must be so. My statements are not based alone upon any special contracts or facts; but as long as human nature remains as it is, as long as the business problem involved in mechanical playing instruments remains as it is, it must be true that a proposition, if enacted and enforced, to subject perforated music rolls to copyright protection will enormously burden the American people for the benefit of corporations and middlemen, and only very slightly for the benefit of musical composers. These distinguished gentlemen--Mr. Herbert and Mr. Sousa--are so distinguished that they can make their own terms, and this bill would enrich them. I do not see that they need to be enriched. I believe that these gentlemen, for amusing the American people, are each one of them receiving more money than Theodore Roosevelt is receiving for regulating the affairs of mankind. [Laughter.] And I myself have contributed many a dollar to their coffers, and I have always obtained full value therefor. I have had the pleasure of listening to two of their operas lately, and if any of you gentlemen get a chance to hear one of them I hope you will not miss it, because it is worth the price. But this business problem that I am expounding is one of great complexity, and while the result of many years of experience with this general topic and the result of many months of special investigation of this subject convinces me that all my statements as to how the thing must work are correct, I can not, in any brief period of time, prove these statements to be true by depositions or testimony of witnesses. Mr. CHANEY. Can you give us an illustration of the respect in which the mere copyrighting of the music roll will do all that? Mr. WALKER. Yes; I can. I think I can do it in three or four minutes. The music that the American people want to play now is made up of two kinds--classic music, uncopyrighted music, and the current music that comes out. Now, if this scheme were carried out the Æolian people would have the exclusive right to perforate paper rolls in accordance with all the current music covered by their contracts with the music publishers; and those contracts cover at least nine-tenths of all the music being produced month by month and year by year. Now, inasmuch as the Æolian Company would have the exclusive right to perforate sheets for half the music that the people want, nobody could sell a music-playing instrument unless it was manufactured by the Æolian Company, because the Æolian Company as a part of their policy would refuse to sell their perforated sheets except for use in connection with their own instruments; and this would be the situation: You want to buy a pianola. You go to New York and call on the Æolian people. They say: "We will sell you a pianola, and if you buy it from us you can use it to play any tune known to man, classical or modern. Go over to our neighbor across the street, and he will sell you a pianola, too, but he can only sell you music rolls to represent classic music and uncopyrighted music. If you are contented with Beethoven and Mozart and the masters, and do not care for Sousa and Victor Herbert and their contemporaries, go across the street and buy your pianola. But if you want a pianola that will enable you to play any copyrighted music at all, you must buy it from us; for there is not another party in the United States that can sell you one of those machines." So that the passage and enforcement of this bill would practically give the Æolian Company, of Meriden, Conn., a permanent patent on an old machine, namely, the automatically played piano, and all other musical instruments played by perforated paper roll. I assure you, gentlemen, that this bill must in the nature of the case have that operation. So that the moment that the Congress passes that bill, if it were to be enforced by the courts afterwards, Congress would be giving to the Æolian Company, of Meriden, Conn., a permanent patent on that great industry, without those people ever having invented a solitary part of the origin of the business, and without ever having composed a single piece of music played in their machines. The CHAIRMAN. Mr. Walker, had you intended to speak specifically about the provisions of this bill? Mr. WALKER. I had, but I have been interrupted so much that I have not been able to do so up to this point. Now I am going to devote myself entirely to that. The CHAIRMAN. You have only twenty-five minutes. Mr. WALKER. I realize that. Mr. CHANEY. You were going to speak of the constitutionality of the bill, also. Mr. WALKER. That is what I am going to take up now. The Constitution provides that copyrights may be granted on writings. This bill provides that copyrights may be granted on works. The fourth section of this bill reads as follows: That the works for which copyright may be secured under this act shall include all the works of an author. Although this bill purports to be founded on the Constitution, and although the Constitution is confined to the word "writings," that word "writings" does not appear among the 8,000 words of that bill. It is not there once. This bill is based upon the theory that Congress has power to grant an exclusive right to works, and the word "works" is used more than 30 times where the word "writings" ought to have been used, and the word "writings" is not printed in that bill from its beginning to its end. I am not reflecting upon any gentleman who drafted the bill in that way, because the bill was drawn upon the theory that the Constitution justifies copyright upon an author's works. Now, the word "works" includes "writings" and is far more comprehensive than "writings." Take the case of Theodore Roosevelt. He has published and printed 15 volumes of original works, and he has delivered without writing more than 1,500 speeches. Now, those books that he has printed and those speeches that he has delivered are equally his works, but they are not equally his writings, because he never has reduced those speeches to writing. So that there is a plain distinction between works and writings, and that distinction is recognized in this bill, as follows. (Now I will devote myself for the rest of the time to strict analysis.) SEC. 4. That the works for which copyright may be secured under this act shall include all the works of an author. Then twelve classes of works are enumerated. The third of those classes of works is said to be "oral lectures, sermons, and addresses." Now, those productions come under the head of works, and do not come under the head of writings, confessedly. Mr. BONYNGE. But they could not be copyrighted until they were reduced to writing, could they? Mr. WALKER. Yes; they could, under this bill. Mr. BONYNGE. How? Mr. CURRIER. What would you file in the copyright office? Mr. WALKER. You do not have to file anything for a year. Mr. CURRIER. I know that; but you have got to file something then. Mr. WALKER. But you get a year's copyright without ever doing that, and this bill would give a man a monopoly of a whole year on a speech never reduced to writing, and that is a "limited time." And if he chooses ever to reduce it to writing, then all he has got to do is to file one copy in the office of the Library of Congress and not publish it at all. Mr. CHANEY. Well, you must remember that we must confine this to copyrighted matter. Mr. WALKER. You must confine it quite narrowly, I think; but please let me develop my particular thought. It is perfectly plain that under this bill a man may have a copyright on an oral sermon, lecture, or address and maintain that copyright for a whole year without that discourse ever being even put into typewriting during that period. That is a perfectly plain case, therefore, of copyrighting a work that is not a writing. Now, come down to subsection G, "works of art." There is another item. Now, that word is much broader than "writings." I have made a good many works of art myself. Everybody that invents a complicated machine produces a work of art and a work of high art. There are a great many works of art here in this room which could not by any possible strain of language be denominated "writings." There is a perfectly plain case of attempting to copyright, under this statute, a work which is not also a writing. Mr. CURRIER. What change would you suggest in subsection G? Mr. WALKER. I have formulated such a change as that, but it would take a little time to explain it. Mr. CURRIER. Very well. Take your own course. Mr. WALKER. I am very glad to be at the disposal of the committee, but it would take me five minutes to explain. It is a very important point. Subsection H covers "Reproductions of a work of art." There is a perfectly flagrant case of attempting to copyright not only a thing that is not necessarily a writing, but also a thing that is not even original; whereas the Supreme Court has told us over and over again that nothing can be copyrighted that is not original. Now, go over to the next page, page 4, Class L: Labels and prints relating to articles of manufacture, as heretofore registered in the Patent Office under the act of June 18, 1874. That was the very act that the Supreme Court held fifteen years ago was unconstitutional as not authorizing copyright on things which are not writings. So that there is a recommendation to this committee to reenact a law that the Supreme Court has expressly held to be unconstitutional. Now, come, if you please, to the second page of this bill. The first section of this bill enumerates exclusive rights to be covered by copyright. Subsection C is: To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery. Mr. CAMPBELL. What page is that? Mr. WALKER. The top of page 2. Senator SMOOT. Subdivision C. Mr. WALKER. (Reading): To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery. A lecture could be copyrighted under this statute without any copy ever being put even into typewriting, as I stated a little while ago, and that copyright could be maintained for a year, when the discourse has no existence whatever except in the mind of the man who delivers it, and in the ears of those who heard it, and in the air that transmitted it from the vocal organs of the lecturer. D--To publicly perform or represent a copyrighted dramatic work. Section 4966 of the Revised Statutes covers that ground already, and provides that copyright may cover the performance of dramatic work. But I hold, and I hold without the slightest hesitation, that that whole section 4966 is unconstitutional. No court has ever held it to be constitutional, and any attempt on the part of Congress to grant a copyright to enable a man to monopolize the rendering of a play on the stage is preposterous. The fathers who went to Philadelphia in 1787 had more weighty business on hand than to give to playwrights an added grip on the monopoly of their productions in addition to the common-law grip that they already had. At that time and now the author of a play is abundantly protected under the common law, but Congress in 1870 provided an additional grip for the playwright under the copyright statute, in face and eyes of the fact that the Constitution under which they were acting was confined to writings. But if I do not remember wrongly (and I think the gentleman from North Carolina will agree with my recollection) about 1870 Congress did several things that could not be fully vindicated under the Constitution. Mr. WEBB. Yes. The CHAIRMAN. Mr. Walker, have you in mind the exact language of the Constitution? Mr. WALKER. Certainly. The CHAIRMAN. Will you not put it on the record at this point? Mr. WALKER. "Congress shall have power to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." "F. To publicly perform a copyrighted musical work, or any part thereof." Now, is Mr. Sousa present? If not, I see Mr. Victor Herbert here, and I would like to ask Mr. Victor Herbert whether, during the last few years, he has with his orchestra performed copyrighted music of other composers, of which copyrighted music he purchased and had the sheets there for the performance? Mr. HERBERT. With their permission. Mr. WALKER. Did you get any other permission than the purchase of the sheets? Mr. HERBERT. That is included. Mr. WALKER. Did you get any special permission to perform? Mr. HERBERT. The permission is written on the sheet. Mr. WALKER. What is written on the sheet? Mr. HERBERT. Permission for performance. Mr. WALKER. It is on the sheet, is it? Mr. HERBERT. Yes. Mr. WALKER. In all cases? Mr. HERBERT. That is, on the corner of the sheets--"permission to perform." Mr. WALKER. Very well, if in his case it is there. But this is the situation of the law at the present time: If one of you gentlemen goes to church and joins in the singing of a hymn that is the subject of a copyright, you are liable to a penalty of $100 for the first time you join in that singing, and a penalty of $50 for every subsequent time, unless you yourself bought that particular hymn book at first hand from the publisher. That is the law now. Mr. SULZER. Suppose the church bought it? Mr. WALKER. Then you are liable for the penalty. Now, that section 4966 has been violated more than a million times since Congress enacted it in 1897, and Congress does not notice the difference; and I take it that it has taken no steps to vindicate its dignity. Mr. BONYNGE. There is a bill pending before our committee on that proposition. Mr. WALKER. Yes; I understand about that pending bill, but I am speaking of the law as it now exists. So that, gentlemen, I take the ground that any legislation that gives to the composer of any music the exclusive right to publicly perform that music is outside of the Constitution, because a copyright on a writing can be infringed only by writing; and when some gentleman or some lady stands up in a church and sings a song out of his or her mind he or she is not doing anything about any writing. Clause G is one to which I direct attention. That clause G is the one that is directed against all music-playing instruments. The gentleman who preceded me did not make entirely clear the nature of this beautiful instrument that he showed the committee, which he stated was capable of rendering music. What he showed to the committee was a perfectly plain steel cylinder. When you look at it you can see no---- Mr. CURRIER. Most members of both committees are perfectly familiar with that instrument. Mr. WALKER. Very well; I am very glad to hear that. There are a very great many persons who are not. Mr. CURRIER. That instrument was exhibited before the House committees in the Fifty-seventh Congress. Mr. WALKER. Oh, yes--then you know all about it. There are a great many gentlemen who have not been informed about it, and I thought I would mention it. Aside from the matters of constitutional consideration--I have twelve minutes left, and during those twelve minutes I wish to devote myself to some criticisms of this bill which have nothing to do with the constitutional questions that I have been discussing. Those criticisms are equally applicable whether the bill is to be framed and enacted on the basis of "works," or whether it is to be framed and enacted on the basis of "writings." And in any view that anybody may take about the scope of the copyright, the criticisms to which I am now calling attention deserve consideration. The first one is in section 13, which is one of those sections that is intended to give the American manufacturer the monopoly of manufacturing copyrighted books. That purpose is a good one, but that section is not well drawn to effect that purpose, because the gentlemen who drew the section were not thoroughly acquainted with the art of printing in its modern development; and the suggestions I have to make to the committee are with a view to strengthening that section so as to close up some loopholes that the authors of the section left wide open. The language is: That of a printed book or periodical the text of the copies deposited under section 11 above shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made from type set within the limits of the United States, or if the text be produced by lithographic process, then by a process wholly performed within the limits of the United States. The trouble there is that the author of that section supposed that the lithographic process was the only other process of producing a book besides printing it from type or a streotyped plate. Now, the lithographic process is not the only process. There are modern processes of photomechanical printing that have nothing at all to do with lithography, that are much cheaper than lithography, and that do all that lithography does. As an illustration, those beautiful illustrated supplements that come out every week with the New York Tribune on Sunday are supposed by some gentlemen to be lithographs. They are not. They are printed on aluminum cylinders at great speed and with great cheapness, and they are very much cheaper and very much better than can be done by the old art of lithography. Mr. CURRIER. Could not that be said to be a plate within the meaning of this act? Mr. WALKER. No; because a stereotype plate is meant. But that is very easily corrected. I would suggest that for the words "by lithographic process" be substituted "any other process." Then that covers lithography and every other possible process. Then, on the 21st line of that page, I would suggest the substitution of "illustrations" for "lithographs," because illustrations may be made otherwise than by lithography. The gentleman who delivered himself upon that particular subject upon behalf of the American mechanic was uninformed about the matter, and complained that a large number of printed illustrations were being imported into this country that would be kept out under the lithographic clause if you put the lithographic clause in strong enough. Now, he is entirely mistaken about that, because the very things that are being imported and that he complains of are not made by lithography at all, but by another process. Section 15 contains a provision as to what shall happen if the copyrighter does not deposit his copies in the office of the Librarian of Congress on time; and there is a proviso in lines 19, 20, and 21 which reads: That in such case no action shall be brought for infringement of the copyright until such requirements have been fully complied with. That ought to be amended by adding the words "or be based on any infringement begun before the time of that compliance," because otherwise the public would have no protection at all. A man could go on and innocently infringe during that year, and the only protection this section gives him is that he would not be sued until after the end of the year, but when sued the action would be retroactive; and that amendment ought to go in to perfect the section. Section 18 relates to the duration of copyright. Gentlemen, that is a topic to which I have given great consideration, and I can do no more than state my opinion. I should like to elaborate it, but what I would recommend the committee to adopt on that subject is this very short provision: That the copyrights secured by this act shall endure for a hundred years in the case of an original book or dramatic or musical composition (one hundred years, Mr. Herbert, I liberally advocate in your behalf) and for fifty years in every other case. I am totally opposed to any law providing for the extension of any copyright or any patent. The public ought to know, when the copyright comes out and when the patent comes out, exactly when it is going to expire; and it ought not to be made contingent upon anything so uncertain as human life. On the other hand, there is every reason in favor of giving the copyrighter a very long period of monopoly. Seventeen years is long enough for the patentee. I am a patentee myself. I would be very glad indeed to have Congress extend some of my patents, but I have not the effrontery to ask Congress to do it, because I do not deserve it. Mr. CURRIER. Do you think a hundred years is a limited time within the meaning of the Constitution? Mr. WALKER. Oh, yes; certainly. A thousand would be. [Laughter.] And I wish to make this suggestion: It was suggested to me that the word "limited" meant definitely limited, and that therefore Congress would not be conforming to the Constitution if it made the period dependent upon any uncertain contingency. Now there is some force in that. Mr. SULZER. I agree with you, Mr. Walker, upon making the number of years definite; whether you make the years few or many, make them definite. Now, right there, without any intention to be facetious, do you not think that fifty years is sufficient? Mr. WALKER. No; and I will tell you why. Harriet Beecher Stowe wrote "Uncle Tom's Cabin" in 1853. She got a copyright on it for twenty-eight years, then an extension of fourteen years, and at the end of that time, in 1895, the copyright expired. Harriet Beecher Stowe then was dead--died in 1896--but she left two maiden daughters; and it would be a comfort to me, and it would be a comfort to all those who honor the memory of Harriet Beecher Stowe, if those two ladies could now be in the receipt of some royalty from "Uncle Tom's Cabin," which they can not be. Mr. SULZER. Is there any government that grants a patent or copyright for more than fifty years that you know of? Mr. WALKER. Not that I know of. Fifty years would be altogether excessive for any patent. The longest period that could possibly be vindicated by argument for a patent would be twenty years. Mr. BONYNGE. How about copyright? Mr. WALKER. I wish I could argue the matter; but I hold that all original works ought to be copyrighted for a hundred years, and all derivative works, such as dictionaries and encyclopedias, for fifty. Mr. BONYNGE. What is the longest period granted by any government, that you recall, for a copyright? Mr. WALKER. I can not speak as to that with certainty. Mr. SULZER. Fifty years? Mr. WALKER. The nations are numerous. Now, I must come to another point, section 23, in respect of the damages that may be recovered. Section 23 begins as follows: That if any person shall infringe the copyright in any work protected under the copyright laws of the United States by doing or causing to be done, without the consent of the copyright proprietor first obtained in writing, any act the exclusive right to do or authorize which is by such laws reserved to such proprietor, etc. The trouble with that is that it makes the man who does the thing an absolute infringer unless he can show a consent in writing; and that repels the whole doctrine of implied licenses and equitable estoppel, which two doctrines are found to be absolutely indispensable to the administration of justice in patent cases, and heretofore in copyright cases. The idea that there can be no answer to an infringement suit for a copyright except a written license is new in this statute. It has never been in any copyright law before, and it would work havoc with justice, because it would enable the wilfully malicious copyrighters to mislead men into unwitting infringement, and then pounce on them with an infringement suit, and then, when they set up equitable estoppel or an implied license, say, "Equitable estoppel and implied license do not go in this statute. You must show a written license." Words can not express how badly that would work. Again, in subdivision B, this man is-- to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer may have made from such infringement. That is wrong, because it gives him two recoveries; and in patent cases the courts have established for more than a quarter of a century that the patentee is entitled to a recovery of profits or damages, whichever he prefers, but is not entitled to recover both. No proposition has ever been made, in any statute, to give anybody a double recovery until it is made here; and here he is told that he shall have both. And what is worse, down at the bottom there of the subsection, if it turns out that there were no damages inflicted and no profits made, then the provision is that the judge shall fix the damages at such a sum as he finds to be just; and then, after the judge is told to exercise his discretion to fix a just sum, he is told that that sum must not be less than $250. On page 18, among the evils and misfortunes that are to be inflicted upon the unwitting infringer as well as the willful infringer, is the following. He must-- deliver up on oath, to be impounded during the pendency of action, upon such terms and conditions as the court may prescribe, all goods alleged to infringe a copyright. So that if anybody wants to drive his competitor out of business, all he has to do is to file a bill alleging that the competing goods infringe, and he does not even have to swear to that; and then, in pursuance of that bill, all the property of that alleged infringer is impounded during the course of the litigation. And it would be a very dull complainant that could not keep the litigation going at least five years, and to that extent eliminate competition. The next one is wickeder still. The infringer must-- deliver up on oath for destruction all the infringing copies or devices, etc. Here is a case of an unwitting infringer. He is found to infringe. He thought he did not infringe. Good lawyers told him he did not. The court finally found that he did, and there, among the penalties, all his goods must be delivered up for destruction. Now, that is entirely wrong. The courts have decided in patent cases that under precisely those circumstances the defendant has a right to export his goods and sell them in foreign countries; and there is no ethical and no legal reason why an unwitting infringer of a copyright, after having been found to infringe in this country, should not export his goods and sell them elsewhere. And the circuit court of appeals for the second circuit has unanimously decided, in patent cases, that that is perfectly right. Mr. WEBB. Not only the copyrighted goods, but the machines themselves. Mr. WALKER. I will come to the other point--certainly; and he must not only have those destroyed, but the "plates, molds, matrices, or other means of making such infringing copies." My client, the Automusic Perforating Company, has a plant that cost $50,000. That mechanism is adapted to perforating rolls, and if they should use that mechanism in perforating 500 rolls with perfect right, and then inadvertently use that mechanism in perforating one roll that was held to infringe, under this bill their whole plant would be cleared out of their place and would be destroyed. Gentlemen, that is so surprising a proposition that I presume it may be of interest to know the origin of it. The patent laws of England provide that, at the discretion of the court, infringing material may be destroyed. That is because the Parliament of England is not subject to any constitutional limitations, and can pass any kind of a law that it pleases. Mr. Justice Gray knew more about the laws of England than he did about the laws of America; and at one time, one of the two times when he was deciding a patent case while he was on the bench, he ran across an English decision in which it was held that the infringing goods might be destroyed. And then, by way of obiter dictum, without having the slightest occasion to do so, he wrote into the decision an obiter dictum to the effect that that was the law of this country. But the judges of the circuit courts know better, and never have enforced that obiter dictum. And if they were to enforce it they would violate two or three provisions of the Constitution, among others that no person shall be deprived of property without due process of law. But the authors of this provision, taking the hint from that obiter dictum of Justice Gray, have not only applied it to the same matter that Judge Gray applied it to, namely, the infringing thing itself, but to the entire plant of the infringer. (At this point it was announced that Mr. Walker's time was up.) Mr. WALKER. I promised to stop at the end of an hour, and I will do so. The CHAIRMAN. Can you finish what you desire to say regarding the provisions of this bill in five minutes additional? Mr. WALKER. Well, I can talk five minutes; I ought to have ten. [Laughter.] The CHAIRMAN. We will give you five minutes more because of the interruptions. Mr. WALKER. Yes. Section 30, in respect to this matter of importations--I am now speaking on behalf of the gentlemen, no one of whom I know, namely, those who desire to be protected in this country against the competition of the labor of Europe in getting up copyrighted books. Section 30 reads: That during the existence of the American copyright in any book the importation into the United States of any foreign edition or editions thereof (although authorized by the author or proprietor) not printed from type set within the limits of the United States or from plates made therefrom, or any plates of the same not made from type set within the limits of the United States, or any editions thereof produced by lithographic process not performed within the limits of the United States, in accordance with the requirements of section 13 of this act, shall be, and is hereby, prohibited. Now, gentlemen of the committee, that prohibition does not amount to a row of pins. It is as void as is the atmosphere around the North Pole at Christmas time of all human interest, because, although one would suppose by a superficial reading that it put a fence up around all parts of the lot, it leaves at least half the sides of the lot entirely uninclosed. Thus, it prohibits nothing except the importation of an entire edition. Now, somebody may say: "No; it is not an entire edition it is aimed at, but only one specimen of the edition." But I say in response to that, that that language "Edition or editions" is taken out of the present statute, and in the present statute the words "edition or editions" are confined in their meaning to entire editions by the circumstance that the present statute prohibits also the importation of individual copies. So that if Congress were to enact that section, and it should come before a court, the lawyer for the defendant would say: "It is perfectly plain that Congress intended to change the law. Formerly, in its wisdom, it prohibited the importation of an edition or editions, and also the importation of individual copies. Now it has expressly left out prohibition of the importation of individual copies and prohibited only the importation of an entire edition," and there would not be any answer whatever to that argument. Mr. SULZER. Then, in the interest of the working people of the United States, you would prefer to have the law left just as it is now? Mr. WALKER. That would be much better than this; but I would strengthen that law. I know how to strengthen it, and I---- Mr. SULZER. Will you tell us, briefly, how you would strengthen the present law? Mr. WALKER. Yes; I would do it by amending this section in three places, very simply, if the stenographer will take this down. Mr. SULZER. He takes everything down. Mr. WALKER. Very well. I propose that section 30 be amended in the interest of American mechanics by substituting the word "copy" for the words "edition or editions" in line 5 of page 23. Then in line 9 of that section---- Mr. SULZER. "Or any part thereof?" Mr. WALKER. Wait a moment--and by substituting the word "copy" for the word "editions" in line 9 of page 23; and by substituting the words "any other" for the word "lithographic" in line 10 of page 23. Now, with those amendments, every door would be closed, and the American mechanic would be protected at every point. Mr. SULZER. Would that preclude any part of that edition being imported? Mr. WALKER. It would, because that language, "or any part thereof," is contained elsewhere. Section 32: There is a statement that-- all actions arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands. Gentlemen, one of the competitors of the gentlemen before me wrote an opera, and that was George Ade, and in this opera he inserted this witticism: The Constitution may follow the flag, but the cocktail is sure to. We are told by the Supreme Court that the Constitution does not follow the flag necessarily; it follows it if Congress sends it there. Now, if in the wisdom of Congress the copyright law should be extended to Hawaii, Porto Rico, and the Philippine Islands, that can be accomplished only by a statute expressing that intention. And the statement that the courts in those outlying regions shall have jurisdiction of copyright cases amounts to nothing unless you extend the copyright laws to those portions of the earth's surface. I am not in favor of doing it; but if you want to make copyrights effective in those outlying regions you must do so by express enactment. Here is a more important matter: Actions arising under this act may be instituted in the district of which the defendant is an inhabitant, or in the district where the violation of any provision of this act has occurred. That ought to be amended by substituting the word "his" for the word "the," because as it reads now you can sue a man for somebody else's infringement. Mr. CHANEY. So that it would read "his violation?" Mr. WALKER. Yes; substitute "his" for "the." Then there should be added to that section this language: "And wherein the defendant has a regular and established place of business." The public policy involved in that point has been threshed out for many years in patent cases; and in patent cases it has been found to be unjust to compel anybody to submit to an action for infringement of a patent in any district unless it be in the district of which he is an inhabitant, or a district where he has a regular and established place of business. You can not sue somebody for infringing a patent merely by proving that he did formerly infringe that patent in a particular district away from home, or by finding him in that particular place. You can not go to Chicago and sue a New York man for infringing a patent on the allegation that a year or so ago he did infringe that patent in the northern district of Illinois, unless you prove also that he has a regular and established place of business in Chicago. No man ought to be sued for infringing a copyright except in the district where he resides; or, lacking that, in the district where he is engaged in business. Mr. CHANEY. Then you would favor the defendant rather than the complainant in such a case? Mr. WALKER. No; I would be just to both; and my proposition is deduced from the present patent statute, and that patent statute is deduced from considerations of justice as they have worked out during fifty years of patent litigation as on the whole being most equitable. Section 35 provides that "In all recoveries under this act full costs shall be allowed." That ought to be amended by substituting the word "actions" for the word "recoveries," so as to permit recovery in behalf of a successful defendant as well as in behalf of a successful complainant; and the word "full" ought to be erased, and these words ought to be added "in accordance with law," so that the section would read: That in all actions under this act, costs shall be allowed in accordance with law; and the law that would be put into operation by that amendment would be those general statutes of the United States which relate to the taxation of costs in all litigations in the United States courts. Here is a bad section, 43-- That in place of the original instrument of assignment there may be sent for record a true copy of the same, duly certified as such by any official authorized to take an acknowledgment to a deed. That opens the door wide to fraud, because hardly anything is easier than to get a notary public to certify that one document is a copy of another, particularly where he is acting in a capacity outside of his office, and therefore would not be liable for any inconvenience or penalty if the certificate should turn out to be false. So here is a proposition to make the ownership of a copyright depend upon the record in the copyright office of an alleged copy of an assignment, which alleged copy may be fraudulent, and if fraudulent then resulting in no punishment to the wrongdoer. Mr. CHANEY. You would confine that to some other official, then; would you? Mr. WALKER. No; I would take it out altogether, and leave it as in patent cases--that only originals are entitled to be recorded. Such a thing as allowing a copy of an assignment of a patent or a copyright to be recorded in the place of the original is entirely unknown, and it would open the door widely to fraud. The CHAIRMAN. Your time has expired, Mr. Walker. Mr. WALKER. Yes. I wish to express my thanks to the committee for hearing me so long and so patiently, and to express my best wishes for the future of the bill, and my own entire willingness to contribute, if I am found to be competent to contribute, to the perfection of the bill hereafter. Senator SMOOT. Mr. Walker, I have been wondering, for the hour that you have been delivering your intelligent speech here, on what basis your congratulations were extended to Mr. Putnam and other persons who took part in the preparation of this bill. [Laughter.] Mr. WALKER. Why, I am surprised that you did not see that. Mr. PUTNAM. I can say, Senator, It is because they have had the benefit of such lucid criticism at such an early stage. I can say that it was not expected by us that anyone would take up this bill with such a penetrating intelligence as Mr. Walker has shown, within a week after its introduction into Congress. Mr. WALKER. And I wish to say to the Senator from Utah, if I may be permitted, that while I have criticized this bill in plain terms, the framework of the bill as a whole is very scientific, and in one day or two days I could so amend the bill as to entirely remove all my objections and still preserve the substance of the scheme which Mr. Putnam has put upon paper. Senator SMOOT. I have been very much interested, Mr. Walker, in your statement. Mr. SULZER. Mr. Chairman, I agree with the Senator from Utah; I have been very much interested in what Mr. Walker has said, and I was going to make this suggestion: That he be allowed to file a brief with the committee, which will be printed in the record as a part of the record. The CHAIRMAN. That was understood the other day. Mr. WALKER. Thank you very much. Mr. SULZER. Mr. Chairman, I would be glad to have the committee hear now Mr. Nathan Burkan, who represents the publishers and composers of music. Mr. CURRIER. Mr. Sulzer, two gentlemen who are now present have come all the way from Chicago to address the committee and have just this moment gotten here. The CHAIRMAN. We will hear Mr. Burkan after them. Mr. CURRIER. We will hear him later. Mr. PUTNAM. Mr. Chairman, you have requested me to remind the gentlemen present that it is the desire of the committee to have a register of the names of all who have attended these hearings, and the capacity (if they desire to indicate it) in which they have been here. Some of you who were not here before will find opportunity to register at the door, and I would suggest that as the register was not opened until Thursday, any of you who know of any persons present on Wednesday who had left by Thursday, and whose names therefore did not appear upon the register, will please pass a memorandum of their names in to us. Mr. Chairman, I have a memorandum handed in which I offer to the committee on behalf of Mr. Charles W. Ames, calling attention to a misunderstanding, as he has believed, of two sections, section 3 and section 19, and another communication simply filing objections to certain sections, 13, 18, 32, 33, and 34, and desiring an opportunity later to be heard. The CHAIRMAN. They will go in the record. (The papers above referred to, together with a letter from Mr. Leo Feist, were directed to be made part of the record, and are as follows:) WASHINGTON, _D.C._, _June 9, 1906_. Mr. HERBERT PUTNAM, _Librarian of Congress_. DEAR SIR: I wish to file with the committee at this time objections to sections 13, 18, 32, 33, and 34 of the copyright bill. I will indicate briefly the grounds of my objection and will make further argument on them at some future time if the committee should desire. Yours, respectfully, CHARLES W. AMES. _Section 13, page 9._--I have always objected to the proposed affidavits of domestic manufacture. I believe there is no real need for it and that it imposes an unnecessary burden on the copyright proprietor and the copyright office. It has been demanded only by the Typographical Union, which claims to have private reasons for believing that the requirement of domestic manufacture is being frequently violated by publishers. The records of the copyright office do not show such violations, nor have I ever heard of any being shown in the courts. The publishers generally throughout the country regard this requirement as an imposition and an outrage--that on the suspicion of the Typographical Union they should be required to swear that they were not violating the law whenever they take out copyright. The publishers would have questioned the propriety of this measure when it was pending before the last Congress if opportunity had been offered, and strenuous opposition would have been made to the passage of the bill. At the first conference last year, the representatives of the Association of Publishers, in a spirit of conciliation, agreed with the representatives of the Typographical Union that they would not oppose the requirement of an affidavit. As a member of that Association of Publishers. I shall not now oppose the affidavit section as a whole, which requires me to swear five hundred times a year that I have done something, failure to do which would have invalidated many thousands of dollars' worth of copyright property. But I do object earnestly and emphatically to the final paragraph of section 13 (lines 21-25, p. 9), requiring the statement in the affidavit of the particular establishment in which the work has been done. This fact is wholly irrelevant to the purpose of the affidavit and has no bearing on the requirements of the copyright law. It is purely a private business matter. In case the affidavit is challenged (as it would be in only an infinitesimal proportion of registrations) and proof of domestic manufacture is required in any action, of course the establishment would be readily shown. Copyright proprietors should not be required to disclose it otherwise, satisfying the curiosity of business rivals and others. It seems also an unnecessary insult to the publishers to provide special penalties for false affidavits. Will not the ordinary penalties for the crime of perjury be sufficient to cover all cases where publishers, in addition to jeopardizing their property rights by violating the provision for domestic manufacture, swear falsely in the premises? I believe that Mr. Sullivan, in behalf of the Typographical Union, stated at the last conference that the union was not disposed to insist on the specification of the establishment in the affidavit if it should appear that this fact was unnecessary and irrelevant to the purpose of the affidavit. I hope that the union will make no opposition to the elimination of this provision, which is obnoxious to the publishers. By so doing they will at least minimize the opposition of the publishers to the affidavit provision as a whole. There are very many publishers throughout the country who are not members of the association referred to, and will not be governed by the agreement made at the conference. The date of publication, if given in the affidavit, might serve for convenience as furnishing an essential fact to be a part of the record covered by the Librarian's certificate. _Section 18, page 14._--This section relates to the term of copyright. In fixing the term I think due consideration has never been given to the fact that a vast majority of copyrights become commercially worthless after a very few years. Thus the records of the copyright office show that last year but 2.7 per cent of the copyrights completing their original term of twenty-eight years were thought by the authors of sufficient value to renew them for the additional fourteen years under the comparatively simple provisions of the present law. It is safe to say that not more than 5 per cent of all the copyrights have any commercial value after twenty-eight years. It would seem feasible to provide for the extension of the property rights in these valuable literary or artistic properties without conferring undeserved or undesired extensions of term in hundreds of thousands of copyrights of no pecuniary value to the owners. On the other hand, there is some intrinsic value to the public in a portion of the copyrighted material after it has lost all pecuniary value to the author or his assignee. I believe that the great majority of copyrights should fall into the public domain at a definite and easily ascertainable time. I hold, therefore, that the ordinary copyright term should be no longer than the twenty-eight years as fixed at present. But the few valuable copyrights could be secured for a much longer term by a simple and easy arrangement for renewal, as by requiring merely the filing of a notice of the desire to extend and allowing the author or his heirs to file such notice; or, in case there has been an outright assignment, permitting the author and assignee or licensee under royalty to join as provided in section 32 of the present draft. Some provision should also be made for the renewal of valuable proprietary copyrights of the sort enumerated in subsection _(b)_ of section 18. _Sections 32-33, pages 26-27._--My most serious and strenuous objections are to this section 32, regarding actions arising under the copyright law, and especially the second paragraph, providing that actions may be brought and jurisdiction secured in any district of the United States where violation of any provision of this act has occurred. This means that any copyright proprietor or any publisher may be brought into any district in the United States or every district simultaneously in the case of many articles sold generally throughout the country. And it therefore concerns very nearly every person interested in the copyright law. Every copyright proprietor may be defendant in a suit as well as complainant. Suits may be brought in good faith or for malicious reasons; for the real protection of property or for harassing business rivals. They may be well founded or groundless, honest or frivolous. Now, speaking as the proprietor of a large number of copyrights and a great deal of valuable copyright property which I am anxious to protect against infringement, I would much prefer to forego the advantages offered to complainants under this section rather than run the risk of the infinite vexation which might be caused my company as defendant in malicious and frivolous suits brought in foreign jurisdictions chiefly for purposes of blackmail. I see no good reason why copyright proprietors should have facilities for the use of the Federal courts not accorded to any other class of suitors. It is true that certain classes of copyright property may require special provisions for their protection, but it should be noted that section 966 of the Revised Statutes is by this bill retained (see sec. 64), and would therefore still protect dramatists and musical people in the peculiar rights which they now have under the present law. The penal provisions of this bill are severe and even harsh, including misdemeanor clauses with fines and forfeitures and even imprisonment. On the other hand, the law is full of novel provisions. It will be, at best, years before these can be judicially construed so that they may be generally understood. Meanwhile, everyone concerned will find many doubtful points and open questions on which legal advice will vary, and can in no case be conclusive. To subject authors and publishers to the danger of being peremptorily summoned to defend an action in a distant district for some supposed violation of some provision, "any provision of this act," however insignificant, with the issuance of ex parte injunctions operative throughout the whole country, with possible "impounding" of important and valuable publications for an indefinite period of time (during the pendency of the suit, see sec. 23, p. 18), a publisher in New York might sue his neighbor across the street in any distant district, possibly Alaska or the Philippine Islands; a rich and powerful house might crush a feeble competitor by forcing him to defend suits brought simultaneously in a hundred jurisdictions. These possibilities may well terrorize all persons interested in copyrightable property of any description. Finally, I say from long experience that it is a mistaken kindness to make copyright litigation easy. The protection of the copyright law is chiefly moral. Remedies for actual wrongs committed are in most cases illusory. A copyright suit should never be brought except for the most serious reasons and to protect large business interests. I believe, therefore, that section 32 should be eliminated altogether from this bill, unless it is thought necessary to retain the first paragraph; and I suppose section 33 would go with it. If this were done, perhaps section 4966 of the Revised Statutes should be incorporated in the new law at this point and reenacted for the sake of completeness, if the committee thinks that it should be retained. _Section 34, page 28._--The limitation of actions in the present law applies only to actions for penalties and forfeitures. I do not think it should be applied, as in this section 34, to all actions; if it should be so applied the term should be at least six years (which is the rule with patents, I understand). The statutes should show clearly that the time runs from the date of the discovery of infringement by the complainant. In these days of an ever-increasing multitude of publications, the copyright proprietor should not be required to examine everything which is issued to see whether his works have possibly been pirated; nor should he be debarred from seeking a remedy if knowledge of piracy should come to him long after the offense has been committed. Unfairness is not always shown on the face of an infringing work, and direct evidence is often required to prove this even to the injured proprietor. [Memorandum by Charles W. Ames.] JUNE 9, 1906. As a constant attendant at the last two conferences, I venture to offer a few words in explanation of two sections of this bill, which, I think, have been misunderstood by some of the gentlemen who have appeared before the committee. Section 3 has been supposed to have some particular reference to and bearing on now existing copyrights taken under the present law. On the contrary, I understand this section to be general and permanent in its character, the purpose of the last three lines being to specifically protect all copyrighted matter for its proper term and no longer, when reproduced in whole or in part, under license or otherwise, in connection with a later copyrighted work. This section is very important as definitely clearing up for the future a question which has been frequently raised in connection with the present law. Section 19, on the other hand, relates merely to now existing copyrights. It has the laudable purpose of extending the benefits of the new law to authors of valuable literary and artistic works copyrighted under the present law. The provisions at the end of the section are designed to secure such new privileges to the authors without interfering with the vested rights and investments of their publishers. After such authors have enjoyed the full forty-two years of monopoly granted them under existing law, they may secure such additional term as is to be accorded to authors under the new law; but if under the contracts which they have already made they have conferred rights upon their publishers as assignees or licensees, then they must have the publishers join with them in their request for the extension. It is questionable whether, in the absence of such provision, the new privileges could be lawfully conferred upon authors who have assigned their rights without impairment of existing contracts. For example, when an author has sold his copyright altogether, the publisher has combined with the literary property investment in plates, stock, and good will, which should not be taken from him at the expiration of the copyright term. In such cases, he could, under the provisions of the present section, secure an extension of exclusive rights only with the help of the author with proper compensation, and the author could secure extension only by fair consideration of the publisher's rights. If they fail to agree, they are left just where they expected to be when they made their contract under the terms of the present law. As to the licensee for publication under royalty, I see no objection to the addition of such a provision as was proposed by Mr. Ogilvie, to protect the author against unfair treatment in respect to future royalties. WASHINGTON, D.C., _June 8, 1906_. The CHAIRMAN OF THE JOINT COMMITTEE ON PATENTS OF THE SENATE AND HOUSE OF REPRESENTATIVES. SIR: At the meeting of the Joint committee held to-day, counsel representing one of the talking machine companies made a statement to the effect that Hon. Herbert Putnam, Librarian of Congress, in the preparation of the copyright bill had called into conference only such interests as he wanted, and with whom he was in league, and intimated that the Librarian has acted in an unfair manner. When recess was taken and the gentleman was leaving the building, I called him aside and emphatically took exception to the remarks referred to. As one attending but not participating in the last two conferences held, I think it no more than fair and just and my duty to express to the joint committee the fact that Mr. Putnam's course throughout the conferences was fair, just, and equitable to all interests represented, and that every interest concerned was invited to present its views. The interests were varied and frequently antagonistic, and Mr. Putnam was decided in his expressions that every representative should be heard to the fullest and freest extent, and that after the wishes of those interested was ascertained he was confident an equitable bill would be the outcome; that while it might not be satisfactory in every respect to each, yet he felt positive that with the assistance of the Department of Justice, the Treasury Department, and the cooperation and counsel of the American Bar Association, and the Bar Association of the City of New York, no interest or line of industry, whether represented or not, would be unjustly or unfairly treated. His attitude in all of the conferences was in the highest degree dignified and impartial. To my positive knowledge the trade journals, as well as the newspapers, contained full information concerning the copyright conferences and the proposed copyright bill as long ago as February, 1906; yet the gentleman referred to claims that the conferences were star chamber proceedings for the benefit of selected private interests. No interested concern could have failed to become acquainted with the fact that the conferences were being held, and no one seeking admission was denied opportunity to present his views. This statement is made solely for the reason that the unjust, unfair, and undeserved criticism of Mr. Putnam, known to me to be absolutely true, has stirred my deepest indignation, and I present this protest to the committee and ask that the reflections upon Mr. Putnam be stricken from the record. Sincerely, yours, LEO FEIST. STATEMENT OF FREDERICK W. HEDGELAND, ESQ. The CHAIRMAN. Whom do you represent? Mr. HEDGELAND. I represent the Kimball Company. I wish to state, gentlemen, that three or four days ago I first learned of the introduction of this measure. I have heard what the advocates of this bill have said with reference to there being one side to this question. There are really four sides to this question--the public, the composer, the manufacturers of the automatic musical instruments, and the inventors that have made that industry possible. The bill as drawn practically gives the monopoly of all this capital that has been invested, the genius that has been displayed and made this field possible to the composer, to the publisher and composer, in its entirety. Now, the brains and effort that have made this market open to the publisher should be recognized in this bill. The bill should not be a retroactive one, to punish the inventor and the capitalist for what they have done in the past to provide a field for the composer. Mr. CURRIER. It will not be retroactive. Mr. HEDGELAND. It must be equitable; and as to any rights that are conveyed in that bill to the publisher or the composer, it must put these industries on an equal footing. Otherwise it is creating one of the worst features of trusts that one can conceive of. In a recent suit it has been claimed that these instruments discourage education in music. Such is not the case. In a recent test case it was proven and never contradicted that learning, both vocal and instrumental, has increased year after year, and that the sale of these staff notation copies has been increased rather than diminished by the automatic musical instruments. Now, those things all being taken into consideration, I think this industry deserves very careful equitable consideration on your part. I have had no time to prepare the different phases of this matter, and would like, if the committee will give me permission, to file a short brief from the manufacturers' and inventors' standpoint. The CHAIRMAN. You may have that privilege. Mr. HEDGELAND. With that, gentlemen, I will not take any more of your time. _To the joint committee of the Senate and House_: In obedience to the privilege extended me on my short address June 9 by your honorable committee I now file the following brief: There are, without question, four vital interests involved in the copyright legislation now before your committee, as applying to mechanical reproductions of musical compositions, as set forth specifically in section 1, paragraph (g), and section 38; this bill, H.R. 19853, also bristles in many sections with conditions that might easily be construed as applying to mechanical industry, and calls for careful analytical legal investigation. The interests of equity involved are: The inventor; the composer; the manufacturer of automatic instruments and their controllers; the public. I shall take up the equities in the order named. _The inventor._--Being an inventor, and the majority of my inventions being on automatic musical instruments and devices for making the controllers (which patents largely outnumber any contributed by any other individual to this art), I am well fitted to state the part these devices have taken in the advancement of music. Automatic musical instruments date back six decades or over. The barrel organ, with its cylinder and pins, was used to accompany divine worship in English churches before pianos adorned the homes of the congregation, and they have been constantly manufactured up to the present time, and are known now as orchestrions. Twenty-three years ago, at the inventions exhibition held in London, England, automatic reed organs (æolians) were exhibited by the Mechanical Organette Company, of New York, and, mechanically, I had charge of the instruments on exhibition. There were also exhibited piano players of French and German manufacture and the Miranda pianista, an English pneumatic player. Both æolians and piano players have constantly been manufactured up to the present time, inventive genius constantly laboring for perfection in operation, ease of operation, and reduction of cost to place them in reach of the masses. It is a fact beyond dispute that barrel organs are as old as or older than pianos or reed organs. I have labored twenty-three years in this industry and contributed between thirty and forty patents to the automatic-instrument industry, and have invented and patented machines that would record on controllers for automatic musical instruments the conceptions of pianists and authors, when played on an instrument by them, and I have yet to acquire a competency for my labors. The inventor's labors are always discounted by the following conditions: First. Capital and machinery to market and manufacture the invention. Second. State of the prior art as brought out in the Patent Office search. Third. The liability of infringement and the slow and tedious and expensive process of stopping it, taking testimony from Maine to California, etc. I have a case of flagrant infringement which was prosecuted four years ago and has not yet been adjudged by the circuit court--as is usual in such cases, temporary injunction being denied, which the composer or author could and does readily obtain. _The composer._--The composer or author of musical compositions rarely, if ever, follows composing or copyrighting alone as the means of making a livelihood. In all my experience I can not recall a single instance where this has been the case. With practically no exceptions, the composers of musical compositions are engaged in various other walks of life, and this line of work is more or less incidental to the occupations they follow. As an illustration I will name a few of them: Band masters, professional pianists, organists, choir leaders, teachers of music, piano salesmen, music salesmen, and many other callings. The amount of time or application spent in framing musical compositions is oftentimes but a few hours and in the majority of cases in otherwise idle hours. For instance, the testimony of George Schleiffarth, given under oath, which appears later in this brief. He states: "I have composed 1,500 pieces in thirty-seven years and have netted only $5,000 for these thirty-odd years." This is an average earning of $3.33 for each piece he copyrighted, or a yearly income during these thirty-seven years of $135 per year from his copyrights. It is patent to anyone that he did not procure his livelihood by this means. This is not an exceptional case, but rather a fair average of them. I do not believe a single case can be produced where a musical composer has earned a livelihood by his compositions alone. This is a very different case with the author of a book with whom the composer shares like privileges under the copyright act. In the majority of cases the author follows writing as his only means of livelihood. This class of work occupies a great deal of time, expense, travel, and study of the subjects forming the foundation of his work. The composers rarely treat their compositions as a serious business proposition, but rather as a side issue of net gain on what they realize from them. The publishers of the country are banded and organized together for mutual protection and enrichment to profit by this condition at the expense of the composer, the policy to fight royalties in favor of outright purchases for nominal amounts being general. _The manufacturer of automatic musical instruments and their controllers._--The equitable interest of the automatic instrument manufacturer consists really of two classes, namely, their rights as legitimate manufacturers to a self-made industry; and the part they have taken in the musical education of mankind, and the right they have to continue uninterrupted in an industry and art in which they have been so potent a factor, without molestation. First. All manufacturers of automatic musical instruments or their controllers have vast interests involved. Capital and time have been heavily spent in creating an honest, legitimate and, beyond question, legal business. They have acquired patent rights, built at large expense special machinery to make a more perfect and less costly product. In short, have exercised and exhibited the same ambition and enterprise that is put into any business where price and merit is the determining factor of success. Second. The manufacturer of self-playing instruments has done much to extend and create cultivated musical taste in the community. This has at no time been at the expense of the composer, but, to the contrary, has increased not only the sale of sheet music but has not diminished the study of music, as the following witnesses testified under oath in the recent copyright case: White Smith Music Publishing Company _v._ Apollo Company, which testimony was never rebutted or disputed as to fact. Mr. George Schleiffarth, witness called on behalf of defendant, being duly sworn, testified as follows: "I have been writing music for thirty-seven years. I have written about fifteen hundred copyrighted compositions, several comic operas, and innumerable musical sketches of all sorts. I have also published some music personally and have now compositions with nearly all the leading publishers in the United States. My best-known compositions are 'Doris,' 'Ambolena Snow,' 'Douglas Club Two-step,' 'Who Will Buy My Roses Red?' and the comic opera 'Rosita,' which has been playing for about twelve years, * * * and as the composer is anxious to be known, I have often asked my publishers to allow the reproduction of my compositions on graphophones and self-playing devices. "Q. 5. Is it your actual observation that the demand for the sheet music is created and stimulated so that the sale thereof is increased by having the musical compositions played by the piano players and other self-playing instruments, and that the cutting of the perforated rolls for a given musical composition and the selling of such rolls with and for the piano players does increase the demand for the sheet music?--A. As I am not in the sheet business on such a scale that I could judge to what extent it has increased, I still claim, from knowing the amount of music sold in the United States to-day, especially in the popular composition line, it is stimulated by all self-playing devices. For example, I would sit at a piano player and play a catchy melody; six or eight people standing around me will immediately ask--or some of them will--'What is this tune you are playing?' and I know from personal knowledge that many copies, especially of my own compositions, which are cut for self-players, have been bought in sheet-music form on account of my playing them on the machine. "Redirect: "Q. 22. I inferred from your statements in that regard that you received usually what you regard as very small compensation or price for a great many of your compositions thus sold. Will you give some instances of this sort, illustrating the disparity between the price you received and the popularity, in sales, of the pieces respectively?--A. My first great success, 'Careless Elegance," which I published on royalty twenty-eight years ago, and which is still selling to-day, netted me $11. My great song, 'Who Will Buy My Roses Red?' which sold 100,000 copies, netted me $83. My great composition, 'The World's Exposition March,' $5. 'The Cadet Two-step' (50,000 copies sold), $4. And so I may go on ad infinitum. Out of 1,500 compositions I have probably earned $5,000." "PETER C. LUTKIN, witness called on behalf of the defendant, being duly sworn, testified as follows: "Q. 4. Have you in mind the rate of growth in respect to pupils in attendance in the school of music for which you are dean, for five or six years back; and if so, will you kindly give us the facts in general?--A. I have the statistics for the past five years. The attendance in the school of music for the year 1898-99 was 248; for the next year, 297; the next, 348; for the next, 366; for the present year, 460. The figures for the present year are an underestimate rather than an overestimate, as the year is not yet closed; actual number is 453 to date, but will probably run to 475. "No cross examination." "JULIUS W. PETERS, a witness called on behalf of the defendant company, being sworn, deposes and testifies as follows: "Direct examination by Mr. BURTON: "Q. 1. Please state your name, age, residence, and occupation.--A. Julius W. Peters; age, 45; residence, 4465 Oakenwald avenue, Chicago, Ill.; bookkeeper for Chicago Musical College. "Q. 2. In your capacity of such bookkeeper, have you been intrusted with the keeping of the attendance of that institution?--A. I have. "Q. 3. Will you please state what those records show as to the rate of growth of the attendance of pupils at that institution during recent years, giving, if you can do so, the rate from year to year, down to the current year?--A. I have taken this report from the year 1896-97, and our years run from September to September, The increase from 1896-97 to 1897-98 over the preceding year was 9.6 per cent, in the following year 10 per cent, in the next year 10 per cent, in the next 23-3/4 per cent, and in the next year 12.9 per cent. "Q. 4. Can you give, from the indications so far in this year, the approximate rate of increase?--A. I should say it would be at least as much as last year, which was approximately 13 per cent. "Q. 5. What is the total increase in attendance from the first year of which you have stated the figures, to the present time?--A. 75.3 per cent; that is, up to September, 1902. "No cross-examination." "Mr. WILLIAM MCKINLEY, a witness called on behalf of defendant, being duly sworn, deposes and testifies as follows: "Direct examination by Mr. BURTON: "Q. 1. Please state your name, age, residence, and occupation.--A. William McKinley; 41; 3306 Indiana avenue, Chicago, Ill.; music publisher. "Q. 6. During the period, say, for the past three years, during which the manufacture and sale of these automatic players has been most rapidly increasing, what has been the fact with regard to the sales of sheet music, as to growth or diminution?--A. My business has greatly increased. "Q. 7. If you have made any examination with regard to the compositions which have been cut in perforated rolls and used in automatic players by the different companies making such players, as to the sales which have been made of these pieces in sheet-music form during the period, say of the last three or four years, or since the time when they were cut in perforated rolls, will you state how the sales of such pieces have run? Have they increased or decreased during those years?--A. My business has very greatly increased in certain pieces that I know are issued in the form of a perforated roll. "Q. 8. Have you in mind--if so, you may state as near as you recall--the rate of increase of any number of those which you have looked up and remember, giving their titles, if you recall them; and, if not, in general?--A. The sales of some of the pieces have doubled within the last two years--double what they were for the four years previous. I have traced up about 20 pieces of that sort to get these figures from which I stated the comparison above. I know when I desire to get new music for my family I call on the operator or performer of some of the stores that handle the music rolls. They often give me a list of the pieces. I usually purchase that. I have a list in my pocket of perhaps at least 20 pieces that I have been recommended to purchase. They have been recommended to me by one of the young men who has charge of that department--music rolls--in one of the stores; pieces I had never heard before. "Q. 9. I understand you mean by your last statement that the pieces that you are recommended to purchase are so recommended by persons who have opportunity to hear them played by means of the perforated rolls?--A. Yes, sir. "No cross-examination." "WALTER LUTZ, witness, called on behalf of defendant, being duly sworn, deposes and testifies as follows: "Direct examination by Mr. BURTON: "Q. 1. Please state your name, age, residence, and occupation.--A. Walter Lutz; 29 years; 902 North Halstead street, Chicago, Ill.; salesman with H. B. McCoy in the music business, Chicago. "Q. 2. How long have you been employed as music salesman?--A. Sixteen years. "Q. 3. From your experience as a salesman of sheet music, have you had any opportunity or occasion to judge what effect, if any, the introduction and increasing use of the piano players and other automatic instruments of this class has upon the demand for and sale of the sheet music of the same compositions?--A. Yes; I have had people come in the store and ask for music which they had heard from the various players. "No cross-examination." I wish to call the committee's attention to the fact that the above testimony was taken to prove the opinions expressed by two witnesses for the plaintiffs were in error when they stated as their opinion that the mechanical player was detrimental to the sale of sheet music. Note the lawyers for the White Smith Music Publishing Company did not dispute the facts by not cross-examining these witnesses. The plaintiff is a big music publishing house and influential members of the Music Publishers' Association, with all the evidence and aid their association could lend, could not and did not attack these undisputable facts. It is a coincident worthy of your close attention that W. M. Bacon, a partner in the plaintiff's firm in this case and also of the copyright committee of the Music Publishers' Association, who was leader of the prosecuting forces and signally failed to prove that this industry did other than to improve the sale of music, now comes to your committee with a copyright measure framed by his associate on the copyright committee of his association. Mr. G. W. Furniss, who is chairman, presented it and had it drafted in at the first conference, at which they both were present, and they were at every other conference to guard their conspiracy; conspiracy I say, because Mr. Bacon's firm has a contract (and his lawyers had to so stipulate), identical to the contract filed with your committee, between a publisher and the Æolian Company. Read the contract; they have conspired against the composer and against the public for an undue personal gain, grafted what they wanted in their copyright measure, and now come to you gentlemen with it under the guise that the composer is being robbed of his dues by automatic devices. I submit it is a prima facie case of the principals to this contract not only planning to sweat the composer, but to hold up the public. It is a conspiracy in which the copyright office has aided them, possibly innocently, and they have asked your assistance, the public funds paying the expenses, the same public they want to get under their grasp. I can prove every word of this at any time. Is it not time Uncle Sam should arouse? _The public._--The public side of this question is an important one. They have purchased in good faith instruments and self-playing devices and invested their money on the reasonable assurance of being able to continue undisturbed in these rights, and, by their patronage, have helped develop one of the foremost industries of this country and must be permitted to continue to buy controllers from the different manufacturers of their instruments. The public's spending power in this industry, being the foundation of this great and prosperous industry and the foundation on which compensation is now sought by copyright legislation for the composer, it is obvious that it must not be impaired at this late date by any measure calculated to give either the composer or his publishers legislation that will place either of them in a position to dominate this extensive industry and interests, and the public. PERTINENT POINTS OF FACT. This bill, H.R. 19853, as presented, is an iniquitous measure, framed not by the "poor composer" nor by the public interested, but by banded, bonded interests, which have conspired together for special privileges and greed and have had the audacity to submit it to Congress for its seal of approval. There is no secret now about this. The Librarian's records show, as also his admissions, that the interests I have enumerated in this brief were never notified of intended proceedings and never invited, although these uninvited interests are the very ones bartered in in the bill. The conferees at the conference consisted of the Book Publishers' Association, the Music Publishers' Association, etc. The two mentioned could hardly represent the authors and composers. Have they any credentials to this effect? The facts are, they represent copyrights they own and for which they seek further favorable concessions, out of which the exploited beneficiaries, the composers, would get nothing. It had been maintained that mechanical players tend to discourage learning and reduce the sale of copyright music, but all the evidence taken on this subject proves the contrary is the case, and it was never questioned, even by counsel representing the publishers, who now seek special privileges. The publishers can not prove that they have paid an average of 1 per cent on copyright music they have published, nor the composers that they have earned an average of 1 per cent on their copyrights, in an industrial field of their own, yet they ask legislation giving them a dominating interest in an industry that other brains and money have created. Any amendment to this measure placing all interests on an equitable footing will be fought by its advocates, showing their corrupt intentions. This industry has been hampered for past years by threats of the mentioned combinations, and Congress in any new bill should clearly define whether this mechanical matter is or is not included in the amendment. To end this matter once and for all, I am in favor of giving the composers (not the proprietor or owner of a copyright) the specific right to copyright his composition as applied to mechanical reproductions, and to collect reasonable royalties from manufacturers who may wish to use it, leaving it to a court of equity to determine what a reasonable equity would be, if such a measure is considered advisable. I should urge that, as this provision will apply solely to mechanical reproductions and receive its benefits therefrom, the term of this copyright should, in all equity, take the life of a patent with which it associates. The following parallel ethical equities with the case of the composer might well be considered by the committee: The architect, the man of brains, who conceives a wonderful conception of a piece of architecture or arrangement of a building, how can he prevent anyone else from duplicating this result or building it, which is the creation of his conception and work? A man discovers a treatment for some disease; others use it and apply it. A surgeon discovers a new form of operation; the others use it. A business man, by dint of his brain, figures out a great system for running his business, which makes it immensely profitable; his fellow-beings adopt it and don't pay him a cent. There are hundreds of parallel cases. Gentlemen, if it had not been for this gigantic conspiracy you would not have heard of the composer's woes. This amendment has been fathered throughout by publishers, associations, and rings. They have exploited the composers' interests when they do not represent them, but, instead, their own selfish interests, which have been safeguarded in advance by contract. Any legislation in favor of the oppressed composer should be so worded and framed as to not place him any further under the power of these combinations. I shall be pleased, at any time, to prove to your honorable committee any statements made in this brief. F. W. HEDGELAND, _Representing Inventors, Manufacturers, Composers, and the Public, 1535 West Monroe street, Chicago, Ill._ STATEMENT OF CHARLES S. BURTON, ESQ., OF CHICAGO, ILL. The CHAIRMAN. Whom do you represent? Mr. BURTON. I speak for the manufacturers of the perforated rolls and automatic instruments. The CHAIRMAN. How much time do you wish? Mr. BURTON. I do not know how much time the committee has at its disposal nor what has transpired. It may appear that some of the points on which I wish to speak have already been handled, and if I am informed of that as I touch them I will not take up further time with them. As I say, I speak for the manufacturers of perforated rolls and automatic instruments. The CHAIRMAN. We have had several speakers on that subject. Mr. BURTON. I understand that some points have been presented. The CHAIRMAN. Perhaps it would answer your purpose to be permitted to see what they have said and supply in writing any additions you may desire to make. Mr. BURTON. I should be very glad to do so. I have been obliged to come here on the shortest possible notice. I left my desk with my mail half opened and jumped for a train upon a telegraphic request to be here, and have only had that much time to determine just the form in which I would like to present what I have to say. But I could give you in ten minutes, probably, the results which, it seems to me, the bill should accomplish, and if I touch on points that have already been discussed it will not be necessary to speak further on them. The CHAIRMAN. You may have ten minutes. Mr. BURTON. But I would like to take advantage of the permission to file a full brief, giving my suggestions in detail as to the changes which, it seems to me, ought to be made in the bill. Mr. CHANEY. Of course we want that, Mr. Burton. We think that will be more valuable to the committee than a speech. Mr. BURTON. That is what I wanted to present, and if I had had time I should have been glad to have brought it in that form here. I want to say first that it seems to me that while the bill follows the previous statutes in general in respect to copyrights, in the point I am going to speak of it ought to be amended. The practice in respect of patents is that the inventor shall verify his inventorship; he shall make oath that he believes himself to be the inventor, and any rights that pass to an assignee of the inventor must pass by an instrument which can be placed of record, signed by the inventor. But on the contrary, in the case of copyrights, in order to obtain a copyright the person claiming as the proprietor has merely to come in and make the claim as proprietor. He does not even have to verify that; and thereupon this bill expressly provides that he has a prima facie title to the copyright thus obtained. It seems to me that that opens the door, as it always has--there is nothing new in this bill in that respect--to a large amount of fraud upon the author or whoever is the one in whom the right originates. I think, therefore, that when the bill is made up it should require the author to verify his authorship. The bill should provide that the application for registration should be accompanied by an affidavit of authorship, and if application is made on behalf of an assignee as proprietor there should be an instrument conveying the right from the person who originates it, namely, the author, accompanying the petition. It seems to me that no hardship can arise from requiring this of an author and the assignee of an author, as it is required of an inventor and the assignee of an inventor. The bill provides that there shall be a very careful prima facie case made by affidavit as to the printing and preparation of the mechanical material for publication in order to come within the statute. All that must be verified, but the fundamental authorship requisite goes upon a mere assertion, without even the verification of an oath of the party claiming. A change should be made in that respect. Then, furthermore, with regard to the right respecting perforated rolls, in respect of which I am speaking particularly, I think the right should be entirely distinct and separate from the fundamental copyright, the copyright of the "work," using the term that has been used; that the right to the perforated roll or whatever other form of mechanical reproduction is claimed should be based upon the filing of a copy of that perforated roll; that the filing of the copy of the original work should carry the copyright in the common sense of the word, but if the author desires to claim copyright in a perforated roll on his work, for that purpose, if you please to put it so, he should take it for that purpose, and make his claim of copyright upon that roll. If he wishes it in any other form of reproduction, such as the disk of the talking machine, he should file that; and I think that right should be entirely separate from the right which might pass by an assignment of the copyright. The publisher who may acquire the copyright on the work from the author should not, without express conveyance (although the same person might acquire both) acquire the right to control the perforated roll or the phonograph record or the talking-machine disk; they should be entirely separate. The bill does provide that these shall be regarded as separate estates; but in view of the decisions in which a similar phrase is used, it is clear to me that that means that when the copyright has been obtained by the one proceeding provided for here, all these elements of it are separate estates which might be passed by separate assignments, but they would all be contained in the one copyright. I think that is wrong. I think that the right for the perforated roll should be acquired by filing a copy of that roll, in order that the public may know just exactly what is claimed, and whether it is claimed or not, and whether it is to be utilized. Furthermore, I think that is a right that is naturally distinct from the other. It is a right that goes into manufacture instead of into publication. It is not to be done by the same people, naturally. The manufacturer, having a factory, makes the perforated roll. The publisher makes the books in an entirely different way. The two things are like different lines of trade. They are not naturally blended, either in use or sale. And therefore the composer or author, whichever it be, a work of words or of music, should be entitled to handle it entirely himself, apart from any right that he may have passed to the publisher by the transfer of his copyright. I think I overheard as I came in a remark indicating that the next point I desire to press has already been suggested. In section 3 of the bill as I read it, as it stands now, there is a provision which would make it possible (and the committee will interrupt me if it has already been discussed, for in that event I should not wish to spend any time upon it) for the owners of copyrights of existing music to simply refile that music for copyright under this statute, and publish it with the mark that is required by this bill, and thereupon all that was contained in the previous copyright that is contained in that refiled and recopyrighted matter would come under this act, with all the privileges that this act gives over former copyright acts. For example, this very matter of the right to mechanically reproduce would attach to a piece of music which had been previously copyrighted and of which a copy is now filed under this statute, and all the privileges of the bill except the longer term would attach to old copyrighted music which is simply refiled. So it would be possible to make the provisions of this act retroactive, so that the publishers, upon taking this proceeding, for 50 cents, with all their copyrighted music, would immediately cause the loss of the millions of dollars that have been invested in those rolls. Mr. CURRIER. That has been discussed by several gentlemen, and objection taken to it--the same objection you are discussing now. Mr. BURTON. Very well; I will not talk of that. Mr. CHANEY. His point is that he would let the copyright go to each one of these interests, as I understand it. Mr. CURRIER. That is on another point, however. He is speaking about section 3 now, in reference to subsisting copyrights. Mr. BURTON. In section 3 there is a provision which ought to be changed to prevent the subsisting copyright from carrying over these provisions into the new---- Mr. CURRIER. That has been discussed by several gentlemen. Mr. BURTON. Then if you are not going to make it retroactive--I judge the committee is clear upon that point--so as to bring under a copyright and make infringements all these outstanding millions of rolls, the question next should be, Should it be possible for the composer, by copyrighting now his perforated roll or taking any steps under this statute, to have the right from this time on to control the cutting of music which has heretofore been cut? That strikes one at once with a little semblance of justice; but the injustice of that proposition consists in this: That for every piece of music which has been cut by a manufacturer, that has been lawfully cut under the present decisions, where he has a perfect right to do it, he has been obliged to expend from $10 to $25. He has that much investment lying under this music that is out in the market. Now, if it is not reasonable that all this outstanding music, lawfully made and lawfully sold, should become outlawed by a new act, is it reasonable that all this provision for making that investment, which amounts to millions of dollars, in the preparation for cutting this music, should become outlawed immediately, so that no more compensation can come to this manufacturer who has this $25 or this $10 invested in each piece, and say to him: "You can not use that music; you can not cut any more of that music?" Is it reasonable that that investment should be killed--that that investment, lawfully made, in a lawful product, should become immediately unlawful and waste paper? Mr. WEBB. What section has that effect? Mr. BURTON. I do not say the bill would certainly have that effect. It is entirely uncertain, but it seems to me the bill would have the effect, as I read it, of permitting the composer to claim the rights except as to outstanding music--that is, the right from this time on to cut it. The bill should be clear. I have had only a very short time to examine it, and a provision may possibly lurk somewhere under which the continued production of perforated rolls now being produced would be permitted, but I think not. I think it is possible, or might be held possible, under the bill for the composer to claim the rights from this time on to cut the music. Mr. CURRIER. Oh, very clearly so; he can sell that right. Mr. BURTON. If that is the case, it seems to me unjust. Mr. CAMPBELL. Where the copyright has run out? Mr. CURRIER. No; for copyrights taken out after the passage of this bill. Mr. BURTON. I am talking about the music that is now on the market, not the rolls, but the means of cutting them--whether the composer can, under this bill, acquire the right to stop the cutting from now on of that music. Mr. CURRIER. I do not think you need to take any time with that proposition. Mr. BURTON. If that is clear, I will pass it. It seems to me the bill gives it; but if you make it entirely clear that it does not---- Mr. CURRIER. It is not the purpose of the committee, I judge, to allow that. Your time has expired. Mr. BURTON. Then I will ask leave to file a complete brief suggesting changes. Mr. CURRIER. And I might say to you what has been said to others here--that neither the Senate nor the House committee will take any action on this bill at this session. It will go over until next winter, and at any time before action is taken you can file any further brief or any further suggestions with the committee. Mr. BURTON. I thank the committee on behalf of the interests I represent. _To the Senate and House Committees on Patents_: Pursuant to the permission granted me at the conclusion of the few minutes' oral hearing with which I was favored before the joint meeting of your committees, I beg to submit herewith a brief and suggestions with respect to the amendments to Senate bill 6330 and House bill 19853, deemed proper and necessary in order to make the act contained in said bills properly protective of the rights and conservative of the interests arising out of and connected with the industries of automatic musical instruments and controlling devices--perforated rolls, talking-machine disks, and phonograph cylinders--for the same. All of which is respectfully submitted. The following facts should be taken into consideration in making any amendment to the copyright law affecting automatic reproducing devices as well as perforated rolls for reproducing music, talking-machine disks, and phonograph cylinders for their respective purposes. 1. To the modern arts relating to automatic music-playing devices and automatic means for reproducing sound, such as talking machines and graphophones, authors and music composers have contributed not a single iota. These arts have been the result of the combined efforts of thousands of scientific, industrious, and artistic inventors. These inventors and the manufacturers cooperating with them by their capital and business skill and enterprise have created these entire arts and to them is due the entire benefit which the public has derived and is deriving from these arts. 2. Musical composers and song writers, notwithstanding their entire lack of participation in the creation and development of these arts, have derived already and are still deriving large pecuniary benefit from them. This is most clearly provable in respect to musical compositions. For any musical composition which has been largely reproduced by automatic players employing perforated roll controllers a largely increased demand immediately arises. The sale of the ordinary staff notation of any such composition experiences a notable stimulus immediately upon the production and sale of the perforated rolls for producing the composition automatically upon musical instruments. This fact is conclusively established by the record in the suit of Apollo _v._ White-Smith Music Publishing Company, lately determined in the United States circuit court of appeals in the eastern division of the southern district of New York. We are filing herewith a copy of the printed record of the defendant in that suit, having marked the pages[1] containing the testimony upon this point, and also a copy of the brief on behalf of the defendant citing[2] the facts as established by the record upon both sides to the effect that in the face of the testimony by wholesale and retail dealers in sheet music, that the sale of perforated rolls for such music largely and promptly increased the demand for the sheet music, there was offered not one word of testimony to the contrary, although in the control of the complainants and available as witnesses in their behalf--practically as cocomplainants or cobeneficiaries with them in the suit--were included nearly all the large publishers of and dealers in sheet music, whose records of sales would have established the facts one way or the other overwhelmingly, so that the absence of testimony from these sources must be taken as an admission of the fact as testified to by the few publishers who were accessible to the defendants. [1] Schleiffarth, pp. 48-51; McKinley, pp. 97-100; Lutz, pp. 100-101; Jansen, pp. 131-133. [2] Pp. 29-34. We assert, and challenge contradiction, that the experience and observation of the music trade during the past ten years, during which this art has grown from infancy to its present proportions, establishes the proposition, viz, that the sale of perforated rolls and other means for automatically reproducing musical compositions to the ear tends largely to increase the demand for the ordinary staff notation or other published form of the particular compositions which are thus reproduced. 3. The making of a perforated roll or equivalent device or appliance for reproducing to the ear a musical composition is not a mere mechanical process nor one involving mere mechanical skill. It is, on the contrary, an artistic process requiring musical taste and ability and affording opportunity for the exercise of the very highest musical taste and ability, conjoined with the most exact and delicate understanding of the mechanical principles and features of the mechanism with which the controller device--perforated roll or the like--is designed to cooperate for reproducing the music to the ear. The art of the "arranger," as he is termed, of a perforated roll brings into exercise an artistic sense and skill of as high a rank as that of the musical composer and requires, in addition thereto, an ability to understand accurately and minutely the intricate mechanism to which the device produced must correspond and with which it must cooperate. In the case of the talking-machine disk and phonograph cylinder, the contribution of the singer and player is even more obvious, as the essential and controlling element in the value of the devices which result and which are the distinct product of the art of the singer and player is a thing apart from the art of the composer. The producer of a perforated roll or of a talking machine disk or phonograph cylinder, therefore, is as much entitled to be considered an "author" in virtue of the production of such roll, disk, or cylinder, entirely apart from and subsequent to the composition of the music as is the painter by virtue of his sensitive appreciation of beauties of form and color in nature and his skill in reproducing them upon the canvas. The landscape painter does not create the nature scene, but he is not the less an artist because he depicts it only, instead of creating it from his imagination. Nor is he less entitled to a copyright upon his painting, because it is a more or less perfect reproduction to the eye of that which existed for the eye before he reproduced it, than if he had evolved the scene from his imagination and then depicted it to the eye by the same skill. The photographer who merely posed his subject is entitled to a copyright upon his photograph. He did not cast the features, nor shape the form, nor arrange the hair, nor devise the costume. He merely posed them all, and chose the position with respect to light and shadow, and adjusted the contrivances for affecting both. This was his art, and the photograph is the result; and it is his photograph for purposes of copyright. The "arranger" of the perforated roll is an artist of as high merit as the photographer, and in some respects of as high merit as the landscape painter. If there is to be secured or conferred upon anyone an exclusive right to the perforated roll, or to the talking-machine disk, or to the phonograph cylinder, for producing to the ear a particular composition, that right, in virtue of authorship, belongs to the arranger of the perforated roll and to the singer or player who produces the talking-machine disk or the phonograph cylinder. That copyright may reasonably be granted to the producers of these devices for the devices themselves seems too obvious for argument, and that it should not be in the power of any composer whose composition is published and on the market to discriminate between different arrangers of perforated rolls or different singers or players, in respect to the right of making such records, respectively, and of selling or renting the same, seems also obvious justice. It would be no injustice, in view of the observed facts above stated--that the composer derives benefit only and never injury from the sale of these automatic devices--that he should have no rights in respect to them, except to be credited with the compositions by having them marked with the title which he has given them for market and with his name as composer. But in view of the possibility that there may be reciprocal advantage--that the name and repute of the music and of its author may contribute to the sale of the reproducing devices--a royalty for the use of the title and name may reasonably be allowed to the composer. But the composer should not be recognized as having any right entitling him to prohibit anyone who desires to do so from making such automatic reproducing devices by employing either the art of the arranger of the perforated roll, or the voice of the singer, or the skill of the player on musical instruments. And the royalty should be uniform for all makers of each sort of device; that is, all makers of perforated rolls for a given composition should pay the same royalty to the composer for the use of his name and the title of his music, and all makers of vocalizing disks or cylinders should likewise pay the same royalty for a given composition. This right to royalty should be allowed, not in virtue of any domination or supposed domination of the original copyright over the act of reproduction, but solely in virtue of the natural right of the composer to have his name and the title which he has given to his music associated therewith, howsoever it is produced, and of the fact that presumably a commercial value attaches to such name and title, which will benefit the seller of the automatic reproducing device. This right of royalty should therefore not run to the proprietor of the original copyright as such, but to the composer as such. If the composer has sold his copyright the purchaser should not, by virtue of that purchase, acquire any interest in the royalty of the composer for the use of his name and the title of his music. Of course the composer could sell this royalty right, and if he chose to sell it with the copyright and to the same person he could do so, but it should not pass without express mention. It should not pass as incident or appertaining to the copyright. Such a provision would be precisely like the provision in the present statute with respect to translations. In the statute it is now provided, not that the copyright includes the right of translation, but that the author whose work has been copyrighted has the exclusive right of translation. He may sell his copyright, but such sale does not divest him of the monopoly of the translation nor vest such monopoly of translation in the assignee of his copyright. NOTE.--This point is somewhat fully developed in brief of the defendants in White-Smith Music Publishing Company _v._ Apollo, copy of which brief is herewith furnished. (See p. 46 to 50, inclusive.) The position above stated and presented in brief, as above noted, was not controverted and was apparently fully conceded as a legal proposition, by counsel for the complainants in that suit. The ultimate propositions supported by the above contention in that suit were contested upon other grounds. Copy of complainants' brief upon this point will be furnished the committee later, with citation to the particular paragraphs sustaining the above statement. Outside of and as an exception to the general class of musical compositions to which the foregoing considerations are pertinent, there is a class more closely related to automatic reproducing devices and in respect to which the composer has a more vital interest, viz: Musical compositions not reproducible to the ear by a single human performer upon any instrument, but which can be produced by means of perforated rolls on an automatic instrument. The staff notations of such compositions have practically no market value, except in case they are arranged in the forms of orchestral scores, so as to be produced by a plurality of instruments simultaneously played by different performers. The number of copies of such orchestral scores which will be required is necessarily very limited, and the sale of such staff notations offers a very limited field from which the composer may derive a just compensation for his work. The only source of revenue to the composer of such works is in the sale of the only means of playing these, viz, the perforated rolls. It may be deemed proper and it will not be denied that it would be just that a composer of a musical composition of this class who causes it to be embodied in the form of perforated roll, and who can derive a revenue from it practically only in this form, should be considered in the light of both composer and arranger, and as entitled to obtain original and independent copyright of the perforated roll, so as to control the composition absolutely in this form. It is believed that it will not be difficult to frame a provision of the statute to do justice to this class of composition, and which shall not trench upon the natural equity of the perforated roll arranger for other musical compositions, or upon the natural right of the public to derive the use of the automatic reproducing devices upon ordinary musical compositions, without requiring the consent of or paying tribute to the composer. _4. As to duration of copyright._--The bill before your committees proposes a remarkable extension of the period of copyright beyond anything heretofore granted. This is believed to be contrary to sound public policy and of doubtful constitutionality. The Constitution expressly limits the power of Congress in respect to their copyright protection to granting such protection "for limited periods." The term "limited" can have only a relative meaning, and the obvious meaning is limited with respect to or in comparison with the period during which the public will have desire or use for the copyrighted work. It is contemplated, evidently, that in compensation for the protection which the statute gives the composer for a limited period the public shall derive the unqualified use and benefit of the work for a remaining period. If there is no remaining period, the consideration for the protection has failed. It needs no statistics to establish to the common knowledge of the committee that not one book in ten thousand has any commercial value fifty years after its publication. It will probably be safer to say that not one published work in a hundred thousand has any life after fifty years. If, therefore, the author is given the monopoly for fifty years, the public has nothing left to compensate it for that monopoly and protection. Not one work in a million endures so as to have any value after one hundred years. But the bill proposes, as to the great bulk of copyrightable matter, that the period of copyright shall be substantially one hundred years--fifty years after the death of the author. It is respectfully submitted that this transcends the intention of the constitutional limitation, and that the public would, by such an enactment, be deprived of substantially all the compensation which the Constitution intended should be reserved to it in return for the copyright protection granted the author. Whether the constitutional limitation should or should not be so strictly applied, it seems beyond doubt that sound public policy forbids thus bartering away all the public benefit arising from the free right of publication after the expiration of copyright. There is a second objection to the particular form in which the bill gives this extended copyright term. There does not appear to be any logical relation between the copyright protection and the duration of the life of the author. The privilege or protection granted is in no respect personal, except as to the revenue which may be derived. There does not appear any reason why the work of a mature writer of 60, presumably capable of giving to the public compositions of peculiar value, especially if they relate to scientific or philosophical subjects, should receive less protection from his copyright than would be granted to a youth of 20, whose immature productions would obtain the protection of a presumably long life before him (during which he would often regret his immature publication). Furthermore, the particular form or provision of the bill with respect to joint authors (line 24, p. 14; line 26, p. 15), when corrected to cure the obvious error in the phraseology and express the doubtless intended meaning, opens the way most obviously for practical fraud upon the public. An aged author, by associating with himself in a nominal yet unimpeachably colorable way a youthful assistant, and obtaining copyright in their names as joint authors, will secure protection for his work concurrent with the life of the junior and fifty years thereafter, instead of concurrently with his own nearly ended life and subsequent fifty years. It is obvious that joint authorship will become exceedingly popular if this paragraph of the bill is retained; and by the expedient of triple or quadruple authorship the chances of a long period will be greatly increased. NOTE.--The very obvious error above indicated--line 24, page 14, line 2, page 15--has probably received the attention of the committee. The sentence supplying the connection from the commencement of section 18 now reads: "That the copyright secured by this act shall endure * * * in the case of joint authors, during their joint lives and for fifty years after the death of the last survivor of them." The gap which is left between the dates of death of the first and last dying of the joint authors is uncovered by the copyright under this form of statement. That is, the copyright would lapse upon the death of the first dying--the end of their joint lives--and revive at the death of the last survivor. The correction is obvious. Make the sentence read: "In the case of joint authors, until the death of the last survivor of them and for fifty years thereafter." It is believed that the present term of copyright should not be disturbed unless to shorten it. Twenty-eight years, with a possible extension of fourteen, exceeds the actual life of a great majority of copyrighted publications and leaves the public nothing for its concession of temporary monopoly to the inventor; but it is, perhaps, a fair average, and at least it has caused no serious complaint upon either hand. An exception should, however, be made in respect to any protection which may be given to anyone, whether composer or arranger, with respect to the automatic reproducing devices--such as perforated rolls--associated so closely, as these devices necessarily are, with manufacture as distinguished from publications and with inventions as distinguished from literary or artistic works. The duration of the patents, whose owners must pay tribute to the holders of any form of copyright upon the perforated rolls, are granted only seventeen years' monopoly in which to derive all compensation for their inventions. The copyright protection, if any, granted in any form upon perforated rolls should not exceed the term of patents--seventeen years. _5. Verification of authorship and ownership should be required._--All our copyright laws hitherto have been unaccountably lax in respect to the requirements for making prima facie title to copyright by virtue of authorship or proprietorship. It has only been necessary, and the present bill only makes it necessary, that the applicant for registration under the copyright statute should state, without verification of any sort, that he claims as the author or proprietor, as the case may be. So singularly loose is the requirement that the applicant is not even required to declare that he is the author or proprietor, but only to state that he claims as author. How easily a fraudulently disposed claimant will satisfy his conscience in stating that he claims as the author, when he might hesitate to declare that he is, in fact, the author; and how much more easily one who conceives that he has a shadow of right to ownership will make the like statement that he claims as the proprietor when he would hesitate to declare that in fact he is the proprietor, is obvious without comment. But it is certainly obvious that so vast and important a right as that conferred by the copyright statute should not be vested and given prima facie validity in anyone who has merely the effrontery to declare even that he is the owner or that he is the proprietor. Why should less be required of the claimant to copyright than is required of the claimant to patent right? The applicant for patent must make oath that he believes himself to be the first and original inventor, and his oath must also declare affirmatively the existence of all of the other conditions precedent to his right to obtain a patent. Why should not the author claiming copyright be subject to a similar requirement? The assignee of an inventor desiring a patent to issue to himself must file in the Patent Office an instrument in writing, signed by the inventor, conveying to the assignee the whole or such portion of the interest as it is desired to have appear in the name of the assignee upon the issue of the patent, and must in addition expressly request that the patent so issue to the assignee. Why should less proof be required of one claiming copyright as proprietor? It seems that no argument is necessary to enforce these suggestions. Under the present law and under the proposed bill any publisher obtaining possession of an author's manuscript under any color of right not involving him in larceny by reason of the possession may proceed to put the work in print and make application for copyright, not even averring that he is the proprietor, but stating that he claims as proprietor. The copyright certificate will issue, and his title to the copyright will be prima facie established by the proceedings which he takes pursuant to the statute and the action of the copyright office therein; and the author, who may be ignorant of the proceedings, who may have only entered upon negotiations with the publisher without any intention of accepting the offers which may have been made, finds himself in the position of being obliged to contest a prima facie right on the part of the publisher to the copyright in his work, with the alternative that if the publisher's title is not conceded to be good the author's right is lost by publication. How many authors have succumbed to the embarrassment of just this situation, deliberately created by greedy publishers, will never be known, but it is time that the statute which offers such inducement to greedy human nature to perpetrate frauds of this character should be remedied, and that the prima facie right acquired under copyright statutes should have behind it at least the support of the oath as to authorship and of an instrument of assignment by the author to the party claiming as proprietor. _6. Penal provisions._--It is respectfully submitted that the penal provisions of this statute are grossly disproportionate to the offenses or injuries to which they are directed, and obviously provocative of blackmail and coercion, and in some instances clearly unconstitutional and unenforceable. No attempt will be made here to discuss all of these provisions, but attention will be directed only to those which bear upon the particular matter on behalf of which this presentation is made, namely, automatic reproducing devices; and without discussion it is suggested as too obvious for argument that a penalty of $10 for each and every infringing copy of a perforated roll found in the possession of the alleged infringer, his agents or employees, is grossly excessive, in view of the selling price of such rolls, which seldom exceeds $3, and probably averages not far from $1. Severe penalties are only proper where the offense complained of can not be committed by accident or inadvertence, and where there can be no possible mistake as to a given act constituting the offense. In any case in which there might be room for difference of opinion, or where the offense might be committed unwittingly, such penalties are grossly improper. But when the situation is such that the party entitled to complain or who might allege injury by reason of the alleged offense is to be the beneficiary of the penalty, and especially, as in the present bill, is to absorb the entire penalty, it is obviously contrary to reason and good morals to make the penalty materially exceed the damage, because there is thereby created a motive on the part of the person alleging injury to promote and encourage surreptitiously the alleged offense until it has grown to large proportions, so that he may thereby reap a greater benefit from the trespass than he could possibly have reaped otherwise from the property trespassed upon. In the case of the perforated rolls, all these objections to severe penalties are found concurrent, for-- (_a_) There will easily arise wide and honest difference of opinion as to whether two given perforated rolls are infringements, one of the other, and even whether a given perforated roll is an infringement of a particular musical composition (if the bill should be retained in such form as to make the original copyright apply to perforated rolls). It is well known that controversies are constantly arising upon the question of infringement as between two staff notations, the second author often claiming and frequently establishing, contrary to the belief of the first, that his composition was an independent one, both having derived their theme from sources in the public domain. A perforated roll presenting a composition only so similar to a public and copyrighted composition as to raise a question of infringement if it were a staff notation, instead of a perforated roll, will raise the same question as a perforated roll. The copyright owner will reap an advantage, it may be, of 10 per cent, upon the selling price of the sheet music, let us say 15 to 25 cents for every copy sold. He will reap a profit of $10 as a minimum upon every copy which he can find in the possession of the alleged infringer, his agents, or employees. Is there any doubt which remedy he will elect? Is there any doubt that he will await his opportunity for finding a large stock in the hands of the alleged infringer? Is there any doubt that a statute so framed would offer almost irresistible inducement to blackmail, which might be perpetrated under such circumstances? The extravagant injustice of the provisions for impounding the "goods alleged to infringe" upon the commencement of a suit and for delivering up for destruction all copies, as well as all plates, molds, matrices, and other means for making infringing copies, have been well discussed by Mr. Walker. It is not deemed conceivable that your committee will seriously entertain such obviously oppressive legislation. On what possible pretense of equity or justice may a complainant, who thinks that his copyright has been infringed, upon that mere allegation lock up his competitor's stock of goods, while he on his part monopolizes the market during the pendency of a long litigation to determine the justice of that which may have been only a colorable charge at the start? One's sense of justice is startled into horror at the suggestion of subsection d, on page 18 of the bill, that "all plates, molds, matrices, and other means for making infringing copies shall be delivered up for destruction," even if it is understood that this is to be done only at the conclusion of a suit. Whoever drafted this provision was either malicious or ignorant. (This statement is made with careful deliberation and we wish to repeat it: He was either malicious or ignorant.) Mr. Walker's presentation must make this clear. I make the same for my own client, which has an equipment involving an investment of many thousand dollars for producing perforated rolls, every element of which would enter into the production of each single roll, and all of which would be subject to destruction under the language quoted. Under this provision of the bill a single accidental, inadvertent infringement will subject that entire plant to destruction, though the copyright owner may not be damaged 50 cents. Could anything be easier than for a malicious manufacturer to ruin his competitor by entrapping him into the manufacture of a single infringing roll and then bringing suit under this section and destroying his establishment? Your committee will not doubt that the writer of this section was ignorant of this possibility, if it acquits him of being malicious in the drafting of this provision. _7. Section 4966--Public performance._--Your committees have not failed to notice the single provision of section 64 of the bill which, "providing that all acts and parts of acts inconsistent with are hereby repealed," makes exception of section 4966, and in respect to that section provides that its provisions "are hereby confirmed and continued in force, anything contrary in this act notwithstanding." The framers of this bill were more anxious than for anything else that the monopoly of public performance given by section 4966 should in no respect be weakened, and although they have embodied in this bill provisions in terms more stringent than those of that section, fearing that these more stringent provisions might not be constitutional, or that by some slip they might be found to leave a loophole, they reversed the ordinary procedure, and, instead of making the bill as a new act, repealing all inconsistent acts, they make the section of the former act nullify the bill as to all inconsistent features. It will occur to the committee that this is an unscientific mode of proceeding, and that the bill, when enacted into law, should be clear and consistent within itself, and not subject to nullification by its own terms in any respect. But it is believed that section 4966 of the present statute has been tacitly treated as meaning something which the legislature in enacting it never intended, and that the provisions in the present bill, developing into express terms that which has been tacitly treated as involved in the terms of said section of the present law, crystalizes into dangerous permanency a defect which would have been eliminated from the present statute whenever the United States courts had occasion to review it. Protection for public performance is justifiable only in respect to compositions which by their nature yield no considerable revenue to the author by the sale of copies or otherwise than by public performance. Dramatic compositions clearly fall within this class. A dramatic composition is written primarily to be performed and only incidentally to be read. Some dramatic compositions may have such literary character that they would be bought to be read and so little dramatic quality that they will not be largely performed; but the dramatic composition whose value is in performance and not in reading gets little protection from the copyright statute without special provision giving monopoly of public performance. A hundred copies will supply all the actors who need it; no one else wants it; but a million people will be glad to see it performed and will pay high prices for their seats. The dramatic writer must get his revenue from the million--not from the hundred--or he will fail of adequate compensation. Recognizing this situation, Congress, in 1870, enacted the following provision: "SEC. 4966. Any person publicly performing or representing any dramatic composition for which copyright has been obtained, without the consent of the proprietor or his heirs or assigns, shall be liable," etc. In 1897 the section was amended by inserting the provisions now contained in section 4966, making it include musical compositions, the words "or musical" being inserted after the word "dramatic" in the second line of above. There can be no reasonable doubt that the intention of the amendment of this section, by making it refer also to musical compositions, was to include musical-dramatic with other simple dramatic compositions; that is, to make the scope of the protection take in all compositions whose value rested in dramatic performance as distinguished from mere vocalization. The word "perform" in the section clearly points to this significance and intention. It is not believable that Congress intended to provide by this amendment that every member of a religious congregation joining publicly in the singing of a copyrighted tune should be liable to the penalties prescribed by this section; nor even that every member of a church choir, having purchased the copies of the copyrighted anthem, sold only for such purpose and useful only for such use, should be subject to these penalties, if the publisher omitted to grant expressly the permission to sing with the sale of a printed copy. But no other interpretation can possibly be derived from the present section unless the word "perform" is taken as applying to dramatic performance and as not including mere vocalization in public. The present bill is intended to leave no doubt upon this point, and in that respect it is contrary to public policy, sound sense, and every consideration of justice. The holder of a musical copyright should not be vested, by virtue of that copyright, with the right to sell his music, which is made to be sung, and prohibit its singing; to sell his music, which is made to be played, and prohibit its playing. Still more obnoxious to justice is it that one who has been openly sold a copy of a piece of music, and who has done with it that which constitutes the only motive for buying it, namely, has sung it, or played it, or procured some one else to sing it for his entertainment, should, if he chances to do that in public, be penalized and put in the position of one who has committed a misdemeanor or transgressed another's rights. Reason and sense revolt at such a statute or such an interpretation of a statute; and musical composers demanding such rights place themselves in contempt of civilized society. Section 4966 should be amended by making clear that it relates only to dramatic performance, while it includes such performance of compositions which are musical as well as dramatic. And all provisions of the present bill exceeding such protection should be limited. _8. As to right of translation._--The present bill makes a radical departure from the present statute in respect to the right of translation of a copyrighted work into other languages. Under the present statute, as above noted and presented in the brief cited, the right of translation inheres in the author as author, conditioned only upon copyright having been obtained of his original work, but not conditioned upon that copyright remaining in him. His assignment of the original copyright does not carry to the purchaser, or divest from the author, the right of translation. The translation, when made by the author, is his own product. He may copyright it or not as he pleases; but the owner of the original copyright has no right in the translation unless expressly conveyed to him (which may be done, of course, by express mention in the conveyance of the original copyright, or by the transference of the manuscript of the original work before copyright, putting the purchaser in the position fully of the author as to all the rights arising out of authorship). The present bill, however, makes the right of translation not merely one which is conditioned upon the existence of copyright of the original work, but an essential and integral part of that copyright, so that it will pass with the assignment of the copyright without special mention, and the proprietor of the copyright, and not the author, would thereafter have the right of translation. The author could not translate his own work without infringing the copyright which he had sold to the proprietor. Any translation, however maladroit or misleading, which the copyright owner--publisher--might approve would pass under the author's name as his work into the foreign language, and he would have no voice to protest against the libel, no power to remedy the injury by putting out a correct translation. It can not be doubted that such considerations as these governed in the enactment of the present statute in such form that the right of translation inheres in the author and does not pass without his express act, though the original copyright may have been assigned. It is obvious that the author ought to have a right in respect to translation which will not require express reservation in order to remain his own when he sells his copyright. It will be apparent that negotiations between an author and publisher for the sale of his copyright will commonly proceed in general terms, referring to the copyright by that term, and that the author will commonly be considering only what may be termed the original copyright in such negotiations, and that he will in some instances convey the copyright with no thought of the appurtenant rights involved in it, and will wake up only too late to find that he has no control over translation, if the term "copyright" carries the whole right, including that of translation, as the present bill provides. The statute is right as it stands and the bill should be amended to conform to the present statute in this respect. I have drafted amendments to the various sections and paragraphs of the bill such as are necessary, in my judgment, to make it conform with the requirements of equity to the different interests affected, and with sound public policy, in the various respects above pointed out and discussed, and would submit them herewith, but find that they are so numerous and require insertions and emendations at so many points in the bill that I believe the purposes of the committee will be much better served by the submission a little later of a full draft of a bill embodying the various changes which I would suggest, so that the matter may be considered in a form consistent throughout instead of in the piecemeal form which would result from the many amendments which would be required to put the present bill in desirable form. Such completely framed bill I promise to submit to the committee at an early day and in ample time for full consideration upon the reassembling of the committee in the fall. Thanking the committee for the opportunity which has been afforded me for presenting my views in the interest of my client, I am, Respectfully, CHAS. S. BURTON, _Representing Melville Clark Piano Company_. STATEMENT OF NATHAN BURKAN, ESQ., OF NEW YORK CITY. Mr. BURKAN. Gentlemen, there has been a great deal said here about this "monopoly," this great "music trust," that intends to---- Mr. CHANEY. You are a publisher, are you? Mr. BURKAN. I represent the Music Publishers' Association. This combination between the Music Publishers' Association and the Æolian Company, the purpose of which is to destroy the independent manufacturers of perforated rolls, cylinders, and disks adapted to reproduce musical sounds. I think we should at this time refer to the history of this alleged contract between Æolian Company and some of the publishers. A number of years ago an action was brought in the circuit court of Massachusetts to restrain the manufacture and sale of perforated rolls on the ground that such perforated rolls infringed the complainant's copyright on his musical composition. The case was argued before Judge Colt, and he decided that a perforated roll was not a copy of a sheet of music, and therefore not an infringement of the copyright. (Kennedy _v._ McTammany, 33 Fed. Rep., 584.) A number of years thereafter another action was begun in the District of Columbia, the case of Stern _v._ Rosey, to restrain the manufacture of cylinders and disks adapted to reproduce musical sounds--applying particularly to talking machines. That court decided against the publisher. Thereafter these companies grew up, one after another, and manufactured rolls, disks, and cylinders, and appropriated for use upon these devices the property of the composer, for which he did not receive a dollar. The Æolian Company, the pioneer in this line of industry, became a very large concern, investing millions of dollars in the establishment of a plant and in the manufacture of these rolls. They knew, or were advised by counsel, that this question, whether a perforated roll adapted to reproduce a copyrighted musical composition was not a "copy" of the composition within the meaning of the copyright law, was uncertain; it had never been decided by any appellate court. And it was very essential for the welfare of the company, and for the protection of its interests, to ascertain whether in fact it was infringing upon a copyright every time it made or sold a roll. The ACTING CHAIRMAN. Do you represent the Æolian Company? Mr. BURKAN. No, sir; I do not. I have no interest in the Æolian Company. I never appeared in any action for it, am not appearing for it now, and do not expect and will not receive or accept any compensation for my services here. I represent the music publishers, and I am a friend of Mr. Victor Herbert. I desire to reiterate that the Æolian Company was advised by able counsel that there was some doubt about this proposition. The Æolian Company, to protect its property, and in order to settle this question once for all, sent its agents to several publishers who stated to them: "Gentlemen, we have sought legal counsel--the ablest that we could find in the city of New York--who advise us that there is grave doubt as to whether the manufacture by us of these perforated sheets do not infringe your copyrights, and that question ought to be determined by the highest court or the land." No single publisher, gentlemen, had sufficient funds to carry on such an expensive litigation, because these music publishers are not the millionaires that our friends on the other side have attempted to point out and show. Most of them are poor men. No single composer would be able to supply the funds to carry on such a litigation. There was a great deal involved; and when this company came and said: "Gentlemen, we will take up this litigation; we will try to establish your rights; but for our trouble, if we do establish your rights, if we can get the highest court in the land to decide that the present copyright laws are applicable to these perforated sheets, then we want the exclusive rights to manufacture perforated rolls adapted to reproduce your music upon specified royalties for a number of years." Was there anything inherently wrong in that? A number of publishers naturally jumped at that offer. It would mean to a large publisher thousands of dollars if the courts decided in his favor. At the time when this offer was made, the perforated roll companies were appropriating his copyrighted music for which he received not a single penny. And the contract that was entered into between the Æolian Company and some of the publishers, a copy of which was offered in evidence here, provides that the consideration for this agreement was this litigation. Nothing was concealed; everything in connection with this contract was done in the open, and the consideration for the contract is expressed in the contract as follows: And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting such suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of kinds aforesaid, and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such, case and from that time forward the Æolian Company will keep the books of account and pay the royalties. These gentlemen, the publishers who made this contract, did not have in mind the creation of a monopoly. Each publisher, naturally, as any other business man, wanted to get something for his property, and it was very advantageous to the publisher to get the highest court to decide in his favor, without paying the enormous expense of such a litigation. Mr. Davis, the inventor of these perforated rolls, properly said--he said it truthfully and honestly--"My invention depends upon Mr. Sousa and Mr. Herbert and their compositions." The music of these gentlemen is a component part of my invention. The ACTING CHAIRMAN. The Æolian Company, as the law stood, did not have to pay to musical publishers a cent? Mr. BURKAN. Not a cent. The ACTING CHAIRMAN. What was their object in getting a decision of the court which would force them to pay large sums to the musical publishers? Mr. BURKAN. They are the largest manufacturers of these rolls in the world. They have manufactured thousands and thousands of these rolls representing the best copyrighted compositions. Suppose a large number of publishers or a number of public-spirited men had gotten together a fund, and suppose a case to test the applicability of the present copyright laws to perforated rolls had been carried to the highest court and won--then the Æolian Company would have been obliged to account for all its profits on these perforated rolls to the publisher, and would have been obliged to pay Mr. Herbert, Mr. Sousa, Mr. Chadwick, Mr. Damrosch, and other composers thousands of dollars in back royalties; whereas under this agreement the Æolian Company protected itself, because the publisher who signed it consented to the use of his composition for the perforated rolls, and he would have been estopped under such agreement from suing for an accounting of profits. The ACTING CHAIRMAN. Yes; but the Æolian Company originated this litigation. Mr. BURKAN. Yes--very true, sir; very true. The Æolian Company (and I do not appear in this matter as its champion at all) had spent thousands of dollars to improve and protect its patents to these perforated rolls. It employs the most skillful and talented arrangers to arrange and edit these compositions embodied in the roll, so that when you purchase an Æolian record or roll and pay your $2.50, or whatever the price may be, you get a roll when used in connection with the playing instrument which gives an exact reproduction of the music as written by the composer, say, by Mr. Nevins, Mr. Chadwick, or Mr. Foote. There were a small number of companies that also sold perforated rolls, but instead of the rolls producing exact reproductions of the music they gave distorted and feeble imitations or versions of that music. They did not give to the public what the public was bargaining for, and instead of creating a taste and demand for this form of reproduction of music, the tendency was to destroy the taste and lessen the demand; and the result was not only to destroy this great industry, of which the Æolian Company was the pioneer and in which it was vitally interested, but also to injure the composer whose work was thus reproduced. There is an artistic side to this question, sir. If you made a speech in Congress, Mr. Chairman, and I should get someone else to repeat your speech into a machine, and your speech lasted fifteen minutes, but in order to crowd it into a cylinder that is adapted to reproduce a speech of two minutes' duration, I should cut, distort, and disfigure it, and then it was reproduced to the public all over the land and sold as Mr. Currier's speech, you naturally would be offended. That is the artistic side of this case. Mr. WEBB. You would have no right to represent it as his voice, his work. Mr. BURKAN. That is what they are doing--representing it as his, the composer's work, and Mr. Herbert's work is judged by the reproduction of it by these mechanical devices. The public says, "That is Victor Herbert's composition," or "That is Mr. Chadwick's composition." And I want to say to the gentlemen here that this proposed law does not only cover music, but it covers poems, speeches, and stories. Now, then, some of these men made this contract. This contract is solely dependent upon the decision of the Supreme Court. It is not dependent upon any legislation at all, and the Æolian Company took absolutely no part in this legislation. The Music Publishers' Association received an invitation from Mr. Putnam to appear at the conferences, and we appeared, and we naturally were interested in getting this legislation. But I say this---- Mr. CROMELIN. Mr. Chairman, may I interrupt one moment? Mr. CROMELIN. May I deny that? The ACTING CHAIRMAN. You will suspend. Mr. BURKAN. The Æolian Company took absolutely no part, had nothing whatever to do with this legislation at all. And I say to you, sir, that if the purpose of these contracts is to stifle competition and to control the industry of making perforated rolls and talking-machine cylinders, then the Sherman Act covers contracts of this kind. I say to you that the Donnelly Act or antitrust law in our State (New York) is very stringent; if it should appear to Mr. Jerome or to the attorney-general of New York, in which State the Æolian Company has its principal place of business, that these contracts tend to stifle trade, or were entered into to destroy competition, each one of these conspirators could be sent to jail, and could be restrained by injunction from enforcing the contracts. We have antitrust laws, sir; and under those laws each of these men could be restrained by injunction from enforcing the contract and criminally punished for entering into it. The ACTING CHAIRMAN. Your time has expired. Mr. Cromelin, you may have one minute to contradict any statement he has made. Mr. CROMELIN. Mr. Chairman, just one minute. Just before leaving New York Saturday I spoke with the manager of the Æolian Company, and I wish this to go on record--that he told me that they did not want to oppose this legislation; that they had contracts; and when people have contracts of this kind they do not go to the house tops and proclaim the fact. The only reason you know of this contract, sir, is because it is a matter of record in the case of the Apollo Company in the second circuit of New York. Mr. CHANEY. Do you mean to say that this contract is an improper one to make? Mr. CROMELIN. Not at all; I did not say that, sir. Mr. CHANEY. Then what concern is it to us, who are engaged in framing this bill, about that contract? Mr. CROMELIN. The chairman asked the gentleman whether the Æolian Company was interested in this---- Mr. BURKAN. Absolutely not. Mr. CROMELIN. And the manager of the company told me that they were. The ACTING CHAIRMAN. It might occur to some members of this committee that if one concern was to get an absolute monopoly of making perforated rolls or musical disks, it did concern this committee. Mr. BURKAN. Can I say a word, sir, on that point? There are hundreds of publishers, sir--hundreds of publishers who are under no contract with the Æolian Company; there are hundreds of composers who are under no contract with this company. You are legislating for the future, and it seems unfair that hundreds of publishers and composers, not parties to this agreement, should be punished because a number of publishers, 10 or 20, have made an unlawful agreement. That is the question that you must consider in connection with this "monopoly" charge. Mr. WEBB. Now, you are a lawyer? Mr. BURKAN. Yes, sir. Mr. WEBB. May I ask you your opinion as to whether or not the word "writings," referred to in article 8 of the Constitution covers these rolls? Mr. BURKAN. Yes, sir; yes, sir. If you will just allow me three minutes---- The ACTING CHAIRMAN. No; answer the question. I can not allow you three minutes, because we shall have to go over to the House. The hearings will be closed right here, as soon as you answer that question. Mr. BURKAN. In the circuit court of appeals, White-Smith Company _v._ Apollo Company case, the court said in a decision involving the question as to whether a perforated roll is an infringement of the copyrighted work which it is adapted to reproduce, and it is important in connection with the claim that Congress has no power to enact this legislation---- The questions raised in these cases are of vast importance and involve far-reaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant. This language of the court is in itself, without further argument on the definition of the word "writings," sufficient warrant and authority for the Congress to enact this legislation. (The hearings were thereupon announced closed.) 
40400	----	file was produced from images generously made available by the Posner Memorial Collection (http://posner.library.cmu.edu/Posner/)) HISTORY OF THE ORIGIN, FORMATION, AND ADOPTION OF THE CONSTITUTION OF THE UNITED STATES; WITH NOTICES OF ITS PRINCIPAL FRAMERS. BY GEORGE TICKNOR CURTIS. IN TWO VOLUMES. VOLUME I. NEW YORK: HARPER AND BROTHERS, FRANKLIN SQUARE. 1854. Entered according to Act of Congress, in the year 1854, by GEORGE T. CURTIS, in the Clerk's Office of the District Court of the District of Massachusetts TO GEORGE TICKNOR, ESQ., THE HISTORIAN OF SPANISH LITERATURE, BY WHOSE ACCURATE SCHOLARSHIP AND CAREFUL CRITICISM THESE PAGES HAVE LARGELY PROFITED, I DEDICATE THIS WORK, IN AFFECTIONATE ACKNOWLEDGMENT OF TIES, WHICH HAVE BEEN TO ME CONSTANT SOURCES OF HAPPINESS THROUGH MY WHOLE LIFE. PREFACE. A special history of the origin and establishment of the Constitution of the United States has not yet found a place in our national literature. Many years ago, I formed the design of writing such a work, for the purpose of exhibiting the deep causes which at once rendered the Convention of 1787 inevitable, and controlled or directed its course and decisions; the mode in which its great work was accomplished; and the foundations on which our national liberty and prosperity were then deliberately settled by the statesmen to whom the American Revolution gave birth, and on which they have rested ever since. In the prosecution of this purpose I had, until death terminated his earthly interests, the encouragement and countenance of that illustrious person, whose relation to the Constitution of the United States, during the last forty years, has been not inferior in importance to that of any of its founders during the preceding period. Mr. Webster had for a long time the intention of writing a work which should display the remarkable state of affairs under whose influence the Constitution was first brought into practical application; and this design he relinquished only when all the remaining plans of his life were surrendered with the solemn and religious resignation that marked its close. It was known to him that I had begun to labor upon another branch of the same subject. In the spring of 1852 I wrote to him to explain the plan of my work, and to ask him for a copy of some remarks made by his father in the Convention of New Hampshire when the Constitution was ratified by that State. I received from him the following answer. "WASHINGTON, March 7th, [1852]. "MY DEAR SIR,-- "I will try to find for you my father's speech, as it was collected from tradition and published some years ago. If I live to see warm weather in Marshfield, I shall be glad to see you beneath its shades, and to talk of your book. "You are probably aware that I have meditated the writing of something upon the History of the Constitution and the Administration of Washington. I have the plan of such a work pretty definitely arranged, but whether I shall ever be able to execute it I cannot say:--'the wills above be done.' "Yours most truly, "DANL. WEBSTER." Regarding this kind and gracious intimation as a wish not to be anticipated in any part of the field which he had marked out for himself, I replied, that if, when I should have the pleasure of seeing him, my work should seem to involve any material part of the subject which he had comprehended within his own plan, I should of course relinquish it at once. When, however, the period of that summer's leisure arrived, and brought with it, to his watchful observation, so many tokens that "the night cometh," he seemed anxious to impress upon me the importance of the task I had undertaken, and to remove any obstacle to its fulfilment that he might have suggested. Being with him alone, on an occasion when his physician, after a long consultation, had just left him, he said to me, with an earnestness and solemnity that can never be described or forgotten: "_You_ have a future; _I_ have none. You are writing a History of the Constitution. _You_ will write that work; _I_ shall not. Go on, by all means, and you shall have every aid that I can give you." The event of which these words were ominous was then only four weeks distant. Many times, during those short remaining weeks, I sought "the shades of Marshfield"; but now it was for the offices and duties, not for the advantages, of friendship;--and no part of my work was ever submitted to him to whose approbation, sympathy, and aid I had so long looked forward, as to its most important stimulus and its most appropriate reward. But the solemn injunction which I had received became to me an ever-present admonition, and gave me--if I may make such a profession--the needful fidelity to my great subject. Whatever may be thought of the manner in which it has been treated, a consciousness that the impartial spirit of History has guided me will remain, after every ordeal of criticism shall have been passed. And here, while memories of the earlier as well as of the later lost crowd upon me with my theme, I cannot but think of him, jurist and magistrate, friend of my younger as well as riper years, who was called from all human sympathies before I had conceived the undertaking which I have now completed. Fortunate shall I be, if to those in whom his blood flows united with mine I can transmit a work that may be permitted to stand near that noble Commentary, which is known and honored wherever the Constitution of the United States bears sway. The plan of this work is easily explained. The first volume embraces the Constitutional History of the United States from the commencement of the Revolution to the assembling of the Convention of 1787, together with some notices of the principal members of that body. The second volume is devoted to the description of the process of forming the Constitution, in which I have mainly followed, of course, the ample Record of the Debates preserved by Mr. Madison, and the official Journal of the proceedings.[1] The period of our history from the commencement of the Revolution to the beginning of Washington's administration is the period when our State and national institutions were formed. With the events of the Revolution, its causes, its progress, its military history, and its results, the people of this country have long been familiar. But the constitutional history of the United States has not been written, and few persons have made themselves accurately acquainted with its details. How the Constitution of the United States came to be formed; from what circumstances it arose; what its relations were to institutions previously existing in the country; what necessities it satisfied; and what was its adaptation to the situation of these States,--are all points of the gravest importance to the American people, and all of them require to be distinctly stated for their permanent welfare. For the history of this Constitution is not like the history of a monarchy, in which some things are obsolete, while some are of present importance. The Constitution of the United States is a living code, for the perpetuation of a system of free government, which the people of each succeeding generation must administer for themselves. Every line of it is as operative and as binding to-day as it was when the government was first set in motion by its provisions, and no part of it can fall into neglect or decay while that government continues to exist. The Constitution of the United States was the means by which republican liberty was saved from the consequences of impending anarchy; it secured that liberty to posterity, and it left it to depend on their fidelity to the Union. It is morally certain that the formation of some general government, stronger and more efficient than any which had existed since the independence of the States had been declared, had become necessary to the continued existence of the Confederacy. It is equally certain, that, without the preservation of the Union, a condition of things must at once have ensued, out of which wars between the various provinces of America must have grown. The alternatives, therefore, that presented themselves to the generation by whom the Constitution was established, were either to devise a system of republican government that would answer the great purposes of a lasting union, or to resort to something in the nature of monarchy. With the latter, the institutions of the States must have been sooner or later crushed;--for they must either have crumbled away in the new combinations and fearful convulsions that would have preceded the establishment of such a power, or else they must have fallen speedily after its triumph had been settled. With the former alternative, the preservation of the States, and of all the needful institutions which marked their separate existence, though a difficult, was yet a possible result. To this preservation of the separate States we owe that power of minute local administration, which is so prominent and important a feature of our American liberty. To this we are indebted for those principles of self-government which place their own interests in the hands of the people of every distinct community, and which enable them, by means of their own laws, to defend their own particular institutions against encroachments from without. Finally, the Constitution of the United States made the people of these several provinces one nation, and gave them a standing among the nations of the world. Let any man compare the condition of this country at the peace of 1783, and during the four years which followed that event, with its present position, and he will see that he must look to some other cause than its merely natural and material resources to account for the proud elevation which it has now reached. He will see a people ascending, in the comparatively short period of seventy years, from an attitude in which scarcely any nation thought it worth while to treat with them, to a place among the four principal powers of the globe. He will see a nation, once of so little account and so little strength that the corsairs of the Mediterranean could prey unchecked upon its defenceless merchantmen, now opening to their commerce, by its overawing diplomacy and influence, an ancient empire, on the opposite side of the earth we inhabit, which has for countless ages been firmly closed against the whole world. He will first see a collection of thirteen feeble republics on the eastern coast of North America, inflicting upon each other the manifold injuries of rival and hostile legislation; and then again he will behold them grown to be a powerful confederacy of more than thirty States, stretching from the Atlantic to the Pacific, with all their commercial interests blended and harmonized by one superintending legislature, and protected by one central and preponderating power. He will see a people who had at first achieved nothing but independence, and had contributed nothing to the cause of free government but the example of their determination to enjoy it, founding institutions to which mankind may look for hope, for encouragement and light. He will see the arts of peace--commerce, agriculture, manufactures, jurisprudence, letters--now languishing beneath a civil polity inadequate and incompetent, and now expanding through a continent with an energy and force unexampled in the history of our race,--subduing the farthest recesses of nature, and filling the wilderness with the beneficent fruits of civilization and Christianity. Surveying all this,--looking back to the period which is removed from him only by the span of one mortal life, and looking around and before him, he will see, that among the causes of this unequalled growth stands prominent and decisive, far over all other human agencies, the great code of civil government which the fathers of our republic wrought out from the very perils by which they were surrounded. It is for the purpose of tracing the history of the period in which those perils were encountered and overcome, that I have written this work. But in doing it, I have sought to write as an American. For it is, I trust, impossible to study the history of the Constitution which has made us what we are, by making us one nation, without feeling how unworthy of the subject--how unworthy of the dignity of History--would be any attempt to claim more than their just share of merit and renown for names or places endeared to us by local feeling or traditionary attachment. Historical writing that is not just, that is not impartial, that is not fearless,--looking beyond the interests of neighborhood, the claims of party, or the solicitations of pride,--is worse than useless to mankind. BOSTON, July, 1854. FOOTNOTE: [1] In citing the "Madison Papers," I have constantly referred to the edition contained in the fifth (supplementary) volume of Mr. Jonathan Elliot's "Debates," &c., because it is more accessible to general readers. The accuracy of that publication, and its full and admirable Index, make it a very important volume to be consulted in connection with the subject of this work. In this relation, I may suggest the desirableness of a new and carefully revised edition of the Journals of the old Congress;--an enterprise that should be the care of the national government. A great magazine of materials for our national history, from the first Continental Congress to the adoption of the Constitution, exists in those Journals. CONTENTS OF VOLUME FIRST. BOOK I. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE COMMENCEMENT OF THE REVOLUTION TO THE ADOPTION OF THE ARTICLES OF CONFEDERATION. CHAPTER I. 1774-1775. ORGANIZATION OF THE FIRST CONTINENTAL CONGRESS.--ORIGIN OF THE UNION.--SITUATION OF THE COLONIES BEFORE THE REVOLUTION. Page Political Organizations of the Colonies 3 Provincial Governments 4 Proprietary Governments 5 Charter Governments 5 Causes of the Revolution 6 Local Legislatures 7 Power of the Colonies to unite, asserted by the Revolution 8 Reasons why they were enabled to effect the Union 8 A General Congress 10 First Step towards it 11 Assembling of the Congress 13 Delegates 14 Method of Voting 15 Rights of the Colonies 16 Separation from Great Britain not contemplated 18 Relations of the Congress to the Country 19 Authority of Parliament 20 Declaration of Rights 22 Cessation of Exports and Imports 23 Another Congress proposed 25 Royal Government terminated in Massachusetts 25 Provincial Congress of Massachusetts 26 Battle of Lexington 27 CHAPTER II. 1775-1776. THE SECOND CONTINENTAL CONGRESS.--FORMATION AND CHARACTER OF THE REVOLUTIONARY GOVERNMENT.--APPOINTMENT OF A COMMANDER-IN-CHIEF.--FIRST ARMY OF THE REVOLUTION. New Continental Congress 28 Delegates 29 Colonies represented 29 Duration of this Congress 30 War commenced 31 Massachusetts and New York apply to the Congress for Direction and Assistance 31 The Congress proceeds to put the Country into a State of Defence 32 American Continental Army created 32 Washington chosen Commander-in-Chief 33 Measures to defray the Expenses of War 34 Treasury Department established 35 General Post-office organized 35 Militia 35 Relations with Indian Tribes 35 Royalists 36 The Congress advise Provisional Governments 37 Separation from England determined upon 38 Suppression of the Royal Authority 39 National Union formed before the State Governments 39 The Revolutionary Government 40 Note on Washington's Appointment as Commander-in-Chief 41 CHAPTER III. 1776-1777. CONTINUANCE OF THE REVOLUTIONARY GOVERNMENT.--DECLARATION OF INDEPENDENCE.--PREPARATIONS FOR A NEW GOVERNMENT.--FORMATION OF THE CONTINENTAL ARMY. Independence proposed 49 Committee to prepare the Declaration 50 Instructions to the Delegates 51 Declaration adopted 51 Consequences of its Adoption 51 The Title "United States of America" first used 52 Articles of Confederation proposed 53 The Revolutionary Congress, the Real Government 54 Power of the Congress 55 General Washington's Position 55 Difficulties which he had to encounter 56 Machinery of Government defective 57 Formation of the Army 58 Remodelling of the Army 59 Difficulties attending it 59 Committee appointed to confer with General Washington 60 Error of Short Enlistments 60 Washington does not concur in their Expediency 60 Powers of the National Government 62 Difficulties attending their Exercise 63 Popular Feeling about the Grievances 64 Tories 65 Officers of the Royal Government in New Hampshire seized 66 General Lee's Offer to seize the Tories of New York 66 He prepares to defend New York 67 Orders to disarm the Tories in Queen's County 68 Orders countermanded 68 Washington's Regret 69 His Directions to Lee 70 Tories of Queen's County arrested 71 Inhabitants of New York alarmed 71 Congress compelled to submit the Subject to the Colonial Authorities 72 Questions of Prize 73 Origin of the American Navy 73 Vessels fitted out to intercept the Enemy's Supplies 73 Falmouth burned 74 Letters of Marque and Reprisal 75 Prizes captured 75 Adjudication of Prizes 76 Delay in obtaining Decisions 77 Means of defraying the Public Expenses 77 Paper Money issued 78 Delay in Signing the Bills 79 Pressing Wants of the Army 79 Washington borrows Money of the Province of Massachusetts Bay 80 Defects of the Revolutionary Government 80 Jealousy of Standing Armies 80 Note on the Authorship of the Declaration of Independence 81 CHAPTER IV. JULY, 1776-NOVEMBER, 1777. CONSEQUENCES OF THE DECLARATION OF INDEPENDENCE.--REORGANIZATION OF THE CONTINENTAL ARMY.--FLIGHT OF THE CONGRESS FROM PHILADELPHIA.--PLAN OF THE CONFEDERATION PROPOSED. Effect of the Declaration of Independence 89 More vigorous and decisive Measures adopted by the Congress 90 Mischievous Adhesion to State Interests 90 History of the Army 91 General Washington abandons the City of New York 91 Writes to the President of Congress 91 He retreats to the Heights of Haerlem, and again appeals to Congress 92 The Congress organizes a new Army 92 Number of Battalions raised by each State 93 Inducements to enlist 93 Serious Defects in the Plan 93 Washington suggests a Remedy 94 Promotion of the Officers provided for 95 Another Defect in the Plan 95 Massachusetts and Connecticut offer further Pay to their Men 95 Washington remonstrates 96 Congress augments the Pay of the Army 96 Ill Effects of the System 96 Number of the American Forces near New York 96 Washington's Discouragement 97 His Situation and Trials 97 His Retreat through New Jersey 98 Loss of Philadelphia threatened 99 Washington asks for Extraordinary Powers from the Congress 100 Powers intrusted to him 100 Unsettled Condition of the Political System 101 The Congress apologizes to the Governors of the States 102 Inaccuracy of their Position 103 The States acquiesce in the Powers granted to Washington 104 Articles of Confederation pending in Congress 104 Eminent Men retire from Congress 104 Delegations of the States renewed 105 Striking Instance of State Jealousy 106 Washington requires an Oath of Allegiance to the United States 107 The Requisition denounced as improper 107 Its Propriety 108 Formation of a new Army 110 Embarrassments in the Formation of the Army 110 Persistence of the States in giving Extra Bounties 110 Bounty offered by Massachusetts 111 Army greatly reduced 111 Washington hindered in his Efforts to plan and carry out a Campaign 112 Applications for Troops to defend particular Neighborhoods 112 Battle of the Brandywine 113 The Congress leaves Philadelphia 113 Sir William Howe takes Possession of it 113 The Congress removes to Yorktown 113 They resolve to consider the Articles of Confederation 114 The Plan of a Confederacy submitted to the several Legislatures 114 Necessity for a National Government 114 End of the Revolutionary Government approaching 115 Want of a Civil Executive 115 States engaged in forming Governments 116 Colonies accustomed to the Business of Government 116 Practice of Representation familiar 117 Previous Political Training of the People 118 Distinctions between the Departments of Government 119 Ideas not yet applied to a General Government 120 Union of the People of the United States, as distinguished from a Union of the States, learned by a bitter Experience 122 First Stage in the Constitutional History of the Country 123 CHAPTER V. NOVEMBER, 1777-MARCH, 1781. ADOPTION OF THE ARTICLES OF CONFEDERATION.--CESSIONS OF WESTERN TERRITORY.--FIRST POLITICAL UNION OF THE STATES. Adoption of the Articles of Confederation 124 Causes which delayed the Adoption of the Confederation 125 Changes of the Members of Congress 126 The present Congress compared with that of 1776 127 Objections made to the Articles of Confederation 128 Propositions for Amendments rejected 129 Objection made by the State of New Jersey 129 Their Suggestion rejected 130 Claims of the Larger States to Vacant Lands 131 Objection of the Smaller States 131 Assent of Maryland to the Confederation withheld 133 New York authorizes its Delegates in Congress to limit the Western Boundaries of the State 134 Congress urges other States to surrender a Portion of their Claims 134 Generous Example of New Jersey 135 Delaware follows it 135 Maryland adopts the Articles of Confederation 136 Virginia yields her Claim to some of her Territory 137 Progress of the People of the United States towards a National Character 139 Security against a Dissolution of the Confederacy 140 CHAPTER VI. NATURE AND POWERS OF THE CONFEDERATION. Nature of the Government established by the Confederation 142 Provisions in the Confederation for the States as separate Communities 143 Form of Government established by it 143 The Confederation a League for Mutual Defence and Protection 144 Powers of Congress with regard to the External Relations of the Country 144 Powers of Congress with regard to Internal Affairs 145 Committee of the States to sit in the Recess of Congress 146 Restrictions imposed upon Congress 146 Revenues of the Country 147 No Provision for enforcing Measures adopted by Congress 148 The United States enter upon a New Era of Civil Polity 149 The Confederation demonstrates the Necessity for a more perfect Union 149 BOOK II. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE ADOPTION OF THE ARTICLES OF CONFEDERATION, IN 1781, TO THE PEACE OF 1783. CHAPTER I. 1781-1783. REQUISITIONS.--CLAIMS OF THE ARMY.--NEWBURGH ADDRESSES.--PEACE PROCLAIMED.--THE ARMY DISBANDED. Congress assembles under the Confederation 155 Treaty of Peace signed 155 Treaty of Alliance with France 156 Delay of the States in complying with the Requisitions of Congress 156 Washington addresses Letters to the States on the Subject of Finance, and completing their Quotas of Troops 157 Force of the Army 158 Discontents in the Army 158 The Newburgh Addresses 159 Congress votes an Establishment of Half-Pay for the Officers 160 Impracticable Adherence to the Principles of Civil Liberty 161 Provision for the Officers found to be inadequate 162 Congress recommends to the States to make Provision for the Officers and Soldiers 162 Pennsylvania places her Officers upon Half-Pay for Life 163 Congress pass a Resolve giving Half-Pay for Life to the Officers 163 Disappointment of the Officers 164 The Congress of the Confederation refuse to redeem the Pledge of the Revolutionary Congress 164 Officers offer to commute the Half-Pay for Life 165 Breach of Public Faith 166 Situation of Washington 167 Anonymous Address circulated among the Officers at Newburgh 168 Washington forbids an Assemblage at the Call of an Anonymous Paper 168 He appoints a Day to hear the Report of their Committee 168 The Officers again refer their Claims to the Consideration of Congress 169 Half-Pay commuted to Five Years' Full Pay 170 The Army disbanded 170 Value of the Votes which fixed the Compensation of the Officers 171 CHAPTER II. 1781-1783. FINANCIAL DIFFICULTIES OF THE CONFEDERATION.--REVOLUTIONARY DEBT.--REVENUE SYSTEM OF 1783. Public Debt of the United States 172 Congress recommend a Duty upon Importations 173 Office of Superintendent of Finance established 174 Rhode Island refuses to grant to Congress the Power of Levying Duties 174 Virginia repeals the Act by which she had granted this Power to Congress 175 No Means of paying the Public Debts 175 Another Plan for collecting Revenues recommended to the States 176 Strong Appeal to the People in Favor of it 177 Claims of the various Classes of the Public Creditors 178 Character of the United States involved 179 The Confederation a Government for Purposes of War 181 Its Great Defects 181 The Moral Feelings an Unsafe Reliance for the Operations of Government 183 Proofs of this in the History of the Confederation 184 Design of the Framers of the Revenue System 185 Claims of the Army 186 Wisdom of proposing a Scheme of Finance during the Continuance of the War 186 Influence of the Revenue System of 1783 188 The System of 1783 different from the Present Constitution 188 Note on the Half-Pay for the Officers of the Revolution 190 Note on the Newburgh Addresses 194 CHAPTER III. 1781-1783. OPINIONS AND EFFORTS OF WASHINGTON, AND OF HAMILTON.--DECLINE OF THE CONFEDERATION. Washington's Relations to the People of this Country 200 His Address to them on resigning his Office 201 His Views at the Close of the War 202 Hamilton's Opinions 203 His Advice and Suggestions 204 The Necessity for a Complete Sovereignty in Congress 204 Hamilton's Entry into Congress 206 Nature of a Federal Constitution not understood 206 Hamilton urges the Necessity of vesting the Appointment of Collectors of Revenue in the General Government 208 Ratio of Contribution by the States to the Treasury uncertain 210 Hamilton desires to change the Principle of the Confederation 211 Advises General Taxes to be collected under Continental Authority 212 An Attempt to substitute Specific Taxes on Land and Houses 212 It is determined to adopt Population as the Basis of Contribution 213 Hamilton's Views on a Peace Establishment 214 Committee to arrange the Details of such a System 215 An Army and Navy necessary 216 No Provision in the Articles of Confederation for their Maintenance during Peace 216 Hamilton advises Federal Provision for Defence 219 Congress driven from Philadelphia 220 Hamilton examines the Confederation 221 Its Defects 222, 223 He proposes to revise it 224 His Plan unsuccessful 224 Improvement in the Revenue System 225 Causes of the Decline of a National Spirit 226 Falling off in the Attendance of Members of Congress 226 Results of the Confederation 228 Its Defects displayed 229 Another Government necessary for the great Duties of Peace 230 BOOK III. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE PEACE OF 1783 TO THE FEDERAL CONVENTION OF 1787. CHAPTER I. JANUARY, 1784-MAY, 1787. DUTIES AND NECESSITIES OF CONGRESS.--REQUISITIONS ON THE STATES.--REVENUE SYSTEM OF 1783. State of the Union from 1783 to 1787 233 Dangers and Evils which existed during the Four Years after the War 234 A New Congress 235 Washington's Resignation 235 Congress urge the Attendance of absent Members 236 Ratification of the Treaty of Peace 237 Congress perpetually in Session during the War 238 Number of Delegates from each State 238 Low State of the Representation 239 Duties of the Government 240 Supplies for the Year 1784 240 How to be obtained 241 Old Requisitions unpaid 241 Supplies necessary for the Year 1785 242 Supplies necessary for the Year 1786 242 Rhode Island and New Jersey propose to pay their Quotas in their own Paper Currency 242 Inadequacy of Requisitions 243 States which had assented to the Revenue System in February, 1786 244 Congress make known the Public Embarrassments 245 Impost granted by all the States except New York 246 Argument used in Support of her Refusal 247 Hamilton's Answer to it 247 Congress recommend to New York to reconsider the Revenue System 247 The Governor refuses to summon the Legislature 247 Failure of the Revenue System 248 CHAPTER II. 1784-1787. INFRACTIONS OF THE TREATY OF PEACE. Provisions of the Treaty of Peace 249 Departure of the British Troops from the Atlantic Coast 249 Western Posts retained 249 Interests of British Subjects 250 Confiscated Property 250 Power of Confiscation belonging to the United States 252 Refugees 252 State Laws prohibiting the Recovery of British Debts 253 Articles of the Treaty infringed by New York 254, 255 Powers of the Government inadequate 255 Treaty of Peace 256 Violations of its Articles 257 Congress recommend to the States to repeal all Acts repugnant to the Treaty 258 The two Countries remain in the same Position 259 CHAPTER III. 1786-1787. NO SECURITY AFFORDED BY THE CONFEDERATION TO THE STATE GOVERNMENTS.--SHAYS'S REBELLION IN MASSACHUSETTS, AND ITS KINDRED DISTURBANCES. Defence against External Assaults, the Object of the Confederation 260 Construction of the State Constitutions 261 Fundamental Doctrine of the American Constitutions 262 Commencement of Discontents in Massachusetts 263 The Confederation without Power to act upon the Internal Condition of a State 264, 265 State Governments exposed to the Dangers of Anarchy 265 Insurrection in Massachusetts 266 Debt of that State at the Close of the War 266 Decrease of Exports and Fisheries 267 General Condition of the State 267, 268 Private Debts 268 The Tender Act 268 Effects of this Law 269 Shays's Rebellion 269 Firmness of Governor Bowdoin 270 Insurrection suppressed 270 Congress unable to interpose 271 Hostile Disposition of the Western Indians 271 Troops to be raised by the New England States 272 Extent of the Disaffection in New England 273 Beneficial Effect of these Disturbances 273 The Union necessary to the Preservation of Order 274 Washington's Anxieties 274 CHAPTER IV. ORIGIN AND NECESSITY OF THE POWER TO REGULATE COMMERCE. Inability of the Confederation to manage Foreign Commerce 276 Essential that it should be managed by the United States 277 Views of the Revolutionary Statesmen 277, 278 Commercial Relations of the United States with Foreign Countries 279 Negotiation of the Treaty with the Netherlands 280 Duties and Imposts 281 Congress without Power to enforce Treaty Stipulations upon the States 282 Relations of the United States with Great Britain 282 Measure of Mr. Pitt 282 Change of the English Administration 283 Mr. Pitt's Bill 283 Views of the New English Administration 283, 284 American Trade excluded from the British West Indies 284 The three great Branches of American Commerce 285 Congress apply to the States for further Powers 286 Action of the States thereupon 286 Success of Treaties dependent on the Grant of further Powers 287 Incongruities in the Grants of the several States 288 Failure of the Attempt to negotiate Commercial Treaties 289 Discordant Legislation of the States 290 CHAPTER V. 1783-1787. THE PUBLIC LANDS.--GOVERNMENT OF THE NORTHWESTERN TERRITORY.--THREATENED LOSS OF THE WESTERN SETTLEMENTS. Relations of Congress to the Public Lands 291 Efforts to procure Cessions from the States 292 Cession by New York 293 Disposal of the Territories 293 Power of Congress to acquire and hold Lands 293 Its Constitutional Authority to deal with acquired Territory 294 Cession of Northwestern Territory by Virginia 295 States to be formed from this Territory 296 Congress pass a Resolve for the Regulation of ceded Territory 296 Principles on which the Government of New States should be established 297 Provision for admitting New States into the Union 298 Compact between the Old and New States 299 The Public Lands the true Resources for the Payment of the Public Debt 299 Slavery to be excluded from the New States 299 Cession by Massachusetts and Connecticut of a Portion of their Territorial Claims 299, 300 Modification by Virginia of her Act of Cession 300 Cession of Lands by South Carolina 301 No other Lands ceded to the United States before 1787 301 Ordinance for the Government of the Northwestern Territory enacted 302 Its Provisions concerning Property 302 Civil Government of the Territory 303 Laws to be adopted 303 Appointment of Civil Officers 304 Counties and Townships to be formed 304 Representation in the Legislature provided for 304 Articles of Compact between the Original States and the People and States in the Territory 305, 306 Wisdom of this Scheme of Government 306, 307 Political Difficulties in the Management of this Territory 308 Threatened Loss of the Western Settlements 309, 310 Washington's Plan of uniting the Eastern and Western States 310 He considers the Opening of the Mississippi not important 311 The Southern Boundary of the United States, by the Treaty of Peace 312 Secret Article in that Treaty 312 Spain refuses to concede the Navigation of the Mississippi 313 Arrival of Guardoqui as Minister from Spain 313 The United States insist on the Right to navigate the Mississippi 314 The Right refused, but a Commercial Treaty tendered 314 Importance of this Treaty 314 The States divided with Regard to the Mississippi 314, 315 Mr. Jay proposes a Middle Course 315 Treaty to be limited to Twenty-five Years 316 Use of the River to be suspended for the same Period 316 Change in Mr. Jay's Instructions 317 Seizure of American Property at Natchez 318 Inhabitants of the Western Settlements alarmed 318 Richness of their Territory 319 Their Complaints of Congress 320 Their Resolves 321 Retaliatory Seizure of Spanish Property 322 The Executive of Virginia disavows the Act 322 Guardoqui adheres to his Position 323 Committees of Correspondence formed in the West 323 The Inhabitants of Kentucky in Motion 323 Remonstrances of Virginia on the Subject of shutting up the Mississippi 323 Their Delegates intercede with the Spanish Minister 324 Their Efforts ineffectual 324 The Vote of Seven States attacked in Congress 325 Unconstitutionality of that Vote 325, 326 It is not rescinded 326 Critical Position of the Country 326 The Subject of the Mississippi postponed to await the Action of the Federal Convention 326, 327 CHAPTER VI. 1783-1787. DECAY AND FAILURE OF THE CONFEDERATION.--PROGRESS OF OPINION.--STEPS WHICH LED TO THE CONVENTION OF 1787.--INFLUENCE AND EXERTIONS OF HAMILTON.--MEETING OF THE CONVENTION. The Federal Power under the Confederation unequal to the Discharge of its Duties 328 The Confederation destitute of Political Sovereignty 329 Capacities of the Country 330 Difficulties in the Formation of a Federal Constitution 331 Progress of Opinion upon the Subject of a General Government 332, 333 Important Centres of Opinion 334 Action of Massachusetts 334 Distress pervading the Commercial Classes 334, 335 Governor Bowdoin's Message 336 The Legislature recommend a General Convention 336, 337 Their Delegates in Congress refuse to present the Resolves 337 Congress desire only a Temporary Power over Commerce 337 Jealousy in Congress of the Changes likely to be made in the Government 338 The Legislature of Massachusetts rescind their Resolutions 339 Condition of Congress in 1785 339 Action of Virginia 340 Proposed Enlargement of the Powers of Congress over Trade 340 Difficulties between the Citizens of Virginia and Maryland 341 Meeting at Alexandria 341 Report of the Commissioners of Virginia and Maryland to their Governments 342 Virginia invites a Meeting of Commissioners from all the States at Annapolis 343 Action of New York 343 Final Appeal by Congress for the Establishment of the Revenue System of 1783 344 Exertions of Hamilton 345 The Revenue System again rejected by the New York Legislature 346 Commissioners appointed by New York to attend the Commercial Convention 346 Course of New York upon the Revenue System 346 Five States only represented at Annapolis 347 Hamilton's Original Plan, and its Modification 347, 348 His Report 348 He desires an entirely New System of Government 349 Caution in his Proposal 350 His extensive Views 350 Reception of the Recommendation of the Annapolis Commissioners in Virginia 351 Objections to it in Congress 352-355 Report of the Commissioners taken into Consideration 355 Opinions of different Members upon the Subject 355 Legal Difficulties in the Way of a Convention 356 Views entertained in Congress 357 Critical State of the Country 357, 358 It impels Congress to Action 358 Influence of the Course of New York upon Congress 358, 359 Their Delegation instructed to move a Convention 360 Failure of this Proposition 360 Adoption of a Resolve proposed by the Massachusetts Members for the same Purpose 361 Mode of Amendment recommended by Congress 362 Importance of this Action of Congress 362 Dangers of Inaction 363 Importance of the Sanction of the Old Government, in the Formation of a new one 364 Hamilton's Wisdom 365 Reason for not intrusting the Revision of the System of Government to Congress 365, 366 Powers of the Convention not defined by Congress 367 Nature of the Crisis 368 Danger of an Attempt to establish Monarchical Government 369 Washington's Opinions 370, 371 Other Difficulties attending the Revision of the Federal System 371 Sectional Jealousy and its Causes 371, 372 New Idea of a Union 372, 373 Prevailing Feeling among Statesmen concerning the Convention 373 Hamilton fully equal to the Demands of the Crisis 373, 374 Assembling of the Convention 374 Novelty of their Undertaking 374, 375 State of Political Science in Modern Europe 375 The Results of English Liberty 376, 377 French Discussions 377, 378 The English Constitution an imperfect Guide 378 Nature of the Problem 379 CHAPTER VII. THE FRAMERS OF THE CONSTITUTION.--WASHINGTON, PRESIDENT OF THE CONVENTION. Embarrassments attending the Assembling of the Convention 380 Discipline to which the American People had been subjected 381, 382 The Constitution the Result of Circumstances 382 Consequences of a Want of Power in the First Government 383 Its Incapacity 384 Sufferings of the People 384 Civil Liberty the Result of Trial and Suffering 385, 386 Qualities of the Framers of the Constitution 386, 387 Hamilton 387 Washington 388 Madison 388 Franklin 388 Gouverneur Morris 388 Their Characters formed during the Revolution 388, 389 Diversities of Opinion in such an Assembly 389 Patriotism of its Members 390 A Republican System their great Object 390 Slight Value of the Examples of other Countries 391 Necessity for a National Head 392 The New Government established without Violence 393 Washington at Mount Vernon 393, 394 His Opinions upon the Powers of the Federal Government 394-396 His Fears as to the Result of a Convention 396, 397 The Legislature of Virginia desire to place him at the Head of their Delegation 397 Refuses informally 398 Declines a Re-election as President of the Society of the Cincinnati 398 Receives Official Notice of his Appointment to the Convention 399 Declines the Appointment 399 The Insurrection in Massachusetts changes his Determination 399, 400 He leaves Mount Vernon for Philadelphia 401 Is elected President of the Convention 401 His great Object, to secure a Republican Government 402 The Idea of a Monarchical Government entertained to some Extent 402 Coercive Power necessary in the General Government 403 Washington's Character as a Statesman 404 His Fitness for the Chair of the Convention 405 CHAPTER VIII. HAMILTON. Causes why Hamilton is less known at the present Day, than other Statesmen of the Revolution 406 Immediate Effect of his Death upon the Country 407 His Birth and Education 408 Very early Entrance upon Political Life 408 His Essays on the Rights of the Colonies 408 Appointed Aide-de-Camp to Washington 409 Elected to Congress from New York 409 A Member of the Legislature 409 Delegate to the Federal Convention 409 One of the Authors of the Federalist 409 Elected to the State Convention 409 Secretary of the Treasury 409 Retirement 409 Command of the Provisional Army 409 Practice of the Law 409 Death 409, 410 Character 410-419 CHAPTER IX. MADISON. His Birth and Education 420 Entrance into Congress 421 His Influence in inducing Virginia to yield the Northwest Territory 422 Other important Services in the Congress of the Confederation 422, 423 Retires to Virginia 423 Efforts for the Enlargement of Commercial Powers 423, 424 His Connection with the Events which led to the Convention 424-427 Appointed one of the Commissioners to Annapolis 427 Drafts the Act of Virginia appointing Delegates to the Federal Convention 427 His Labors in the Convention 427, 428 Records the Debates 428 His Character 428-431 CHAPTER X. FRANKLIN. His long Career of Public Service 433, 434 His distinguished Residences abroad 434, 435 Importance and Influence of his Presence in the Convention 435-437 His Objections to the Constitution 437 Sacrifices them to the Public Good 437 His Efforts to produce Unanimity 437, 438 CHAPTER XI. GOUVERNEUR MORRIS. Birth and Education 440 Views on the Independence of America 441 Services in Congress 442 Appointed Assistant Financier 443 Elected to the Federal Convention 444 His Character 444-447 CHAPTER XII. KING. Birth and Education 448 Elected to Congress 448 His Opinions on the Subject of a Federal Convention 449 His Views of the Insurrection in Massachusetts 450 Disappointment concerning the Powers of the Confederation 450 Change of Opinion 450, 451 View of the true Principle for the new Government 451 Introduces the Prohibition against Laws affecting the Obligation of Contracts 452 His Character 453 CHAPTER XIII. CHARLES COTESWORTH PINCKNEY. Descent and Education 454 Military Career 454 Appointed to the Federal Convention 455 His Course on the Slave-Trade, and the Regulation of Commerce 456 Vindication of the Framers of the Constitution 456-460 Note on the Abolition of the Slave-Trade 460 CHAPTER XIV. WILSON. Birth and Education 462 Emigration to America 462 Services in Congress 462, 463 His Opinions in the Convention 463, 464 Exertions for a Representative Government 464 Appointed Judge of the Supreme Court of the United States 465 His Speech on the Constitution in the Pennsylvania Convention 465-479 CHAPTER XV. RANDOLPH. An Aide-de-camp to Washington 480 Services in Congress 480 Elected Governor of Virginia 481 Procures the Attendance of Washington 481 His Opinions on the Constitution, and the existing Crisis 481-485 Genealogy 485 CHAPTER XVI. CONCLUSION OF THE PRESENT VOLUME. The Other Members of the Convention 486, 487 Responsible Position of the American People 487, 488 APPENDIX. Circular Letter of Congress recommending the Articles of Confederation 491 Representation of New Jersey on the Articles of Confederation 493 Act of New Jersey accepting the Confederation 497 Resolutions passed by the Council of Delaware respecting the Articles of Confederation 498 Act to authorize the Delegates of the Delaware State to ratify the Articles of Confederation 500 Instructions of the General Assembly of Maryland to their Delegates, respecting the Articles of Confederation 501 Act of the Legislature of New York, to facilitate the Completion of the Articles of Confederation and Perpetual Union among the United States of America 505 Report of the Committee of Congress as to the Proceedings of the Legislatures of Maryland, New York, and Virginia in Relation to the Articles of Confederation 506 Act to empower the Delegates of Maryland to ratify the Articles of Confederation 508 Articles of Confederation and Perpetual Union between the States 509 Members of the Convention which formed the Constitution 516 BOOK I. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE COMMENCEMENT OF THE REVOLUTION TO THE ADOPTION OF THE ARTICLES OF CONFEDERATION. CHAPTER I. 1774-1775. ORGANIZATION OF THE FIRST CONTINENTAL CONGRESS.--ORIGIN OF THE UNION. The thirteen British colonies in North America, by whose inhabitants the American Revolution was achieved, were, at the commencement of that struggle, so many separate communities, having, to a considerable extent, different political organizations and different municipal laws: but their various populations spoke almost universally the English language. These colonies were Virginia, Massachusetts, New Hampshire, Connecticut, Rhode Island, Maryland, New York, New Jersey, Pennsylvania, Delaware, North Carolina, South Carolina, and Georgia. From the times when they were respectively settled, until the union formed under the necessities of a common cause at the breaking out of the Revolution, they had no political connection; but each possessed a domestic government peculiar to itself, derived directly from the crown of England, and more or less under the direct control of the mother country. The political organizations of the colonies have been classed by jurists and historians under the three heads of Provincial, Proprietary, and Charter governments. To the class of Provincial governments belonged the Provinces of New Hampshire, New Jersey, Virginia, the two Carolinas, and Georgia. These had no other written constitutions, or fundamental laws, than the commissions issued to the Governors appointed by the crown, explained by the instructions which accompanied them. The Governor, by his commission, was made the representative or deputy of the King, and was obliged to act in conformity with the royal instructions. He was assisted by a Council, the members of which, besides participating with him, to a certain extent, in the executive functions of the government, constituted the upper house of the provincial legislature; and he was also authorized to summon a general assembly of representatives of the freeholders of the Province. The three branches thus convened, consisting of the Governor, the Council, and the Representatives, constituted the provincial Assemblies, having the power of local legislation, subject to the ratification and disapproval of the crown. The direct control of the crown over these provincial governments may also be traced in the features, common to them all, by which the Governor had power to suspend the members of the Council from office, and, whenever vacancies occurred, to appoint to those vacancies, until the pleasure of the crown should be known; to negative all the proceedings of the assembly; and to prorogue or dissolve it at his pleasure. The Proprietary governments, consisting of Maryland, Pennsylvania, and Delaware, were those in which the subordinate powers of legislation and government had been granted to certain individuals called the proprietaries, who appointed the Governor and authorized him to summon legislative assemblies. The authority of the proprietaries, or of the legislative bodies assembled by the Governor, was restrained by the condition, that the ends for which the grant was made to them by the crown should be substantially pursued in their legislation, and that nothing should be done, or attempted, which might derogate from the sovereignty of the mother country. In Maryland, the laws enacted by the proprietary government were not subject to the direct control of the crown; but in Pennsylvania and Delaware they were.[2] The Charter governments, consisting, at the period of the Revolution, of Massachusetts, Rhode Island, and Connecticut, may be said, in a stricter sense, to have possessed written constitutions for their general political government. The charters, granted by the crown, established an organization of the different departments of government similar to that in the provincial governments. In Massachusetts, after the charter of William and Mary granted in 1691, the Governor was appointed by the crown; the Council were chosen annually by the General Assembly, and the House of Representatives by the people. In Connecticut and Rhode Island, the Governor, Council, and Representatives were chosen annually by the freemen of the colony. In the charter, as well as the provincial governments, the general power of legislation was restrained by the condition, that the laws enacted should be, as nearly as possible, agreeable to the laws and statutes of England. One of the principal causes which precipitated the war of the Revolution was the blow struck by Parliament at these charter governments, commencing with that of Massachusetts, by an act intended to alter the constitution of that Province as it stood upon the charter of William and Mary; a precedent which justly alarmed the entire continent, and in its principle affected all the colonies, since it assumed that none of them possessed constitutional rights which could not be altered or taken away by an act of Parliament. The "Act for the better regulating the government of the Province of Massachusetts Bay," passed in 1774, was designed to create an executive power of a totally different character from that created by the charter, and also to remodel the judiciary, in order that the laws of the imperial government might be more certainly enforced. The charter had reserved to the King the appointment of the Governor, Lieutenant-Governor, and Secretary of the Province. It vested in the General Assembly the choice of twenty-eight councillors, subject to rejection by the Governor; it gave to the Governor, with the advice and consent of the Council, the appointment of all military and judicial officers, and to the two houses of the legislature the appointment of all other civil officers, with a right of negative by the Governor. The new law vested the appointment of councillors, judges, and magistrates of all kinds, in the crown, and in some cases in the Governor, and made them all removable at the pleasure of the crown. A change so radical as this, in the constitution of a people long accustomed to regard their charter as a compact between themselves and the crown, could not but lead to the most serious consequences. * * * * * The statements which have now been made are sufficient to remind the reader of the important fact, that, at the commencement of the Revolution, there existed, and had long existed, in all the colonies, local legislatures, one branch of which was composed of representatives chosen directly by the people, accustomed to the transaction of public business, and being in fact the real organs of the popular will. These bodies, by virtue of their relation to the people, were, in many instances, the bodies which took the initiatory steps for the organization of the first national or Continental Congress, when it became necessary for the colonies to unite in the common purpose of resistance to the mother country. But it should be again stated, before we attend to the steps thus taken, that the colonies had no direct political connection with each other before the Revolution commenced, but that each was a distinct community, with its own separate political organization, and without any power of legislation for any but its own inhabitants; that, as political communities, and upon the principles of their organizations, they possessed no power of forming any union among themselves, for any purpose whatever, without the sanction of the Crown or Parliament of England.[3] But the free and independent power of forming a union among themselves, for objects and purposes common to them all, which was denied to their colonial condition by the principles of the English Constitution, was one of the chief powers asserted and developed by the Revolution; and they were enabled to effect this union, as a revolutionary right and measure, by the fortunate circumstances of their origin, which made the people of the different colonies, in several important senses, one people. They were, in the first place, chiefly the descendants of Englishmen, governed by the laws, inheriting the blood, and speaking the language of the people of England. As British subjects, they had enjoyed the right of dwelling in any of the colonies, without restraint, and of carrying on trade from one colony to another, under the regulation of the general laws of the empire, without restriction by colonial legislation. They had, moreover, common grievances to be redressed, and a common independence to establish, if redress could not be obtained: for although the precise grounds of dispute with the Crown or the Parliament of England had not always been the same in all the colonies, yet when the Revolution actually broke out, they all stood in the same attitude of resistance to the same oppressor, making common cause with each other, and resting upon certain great principles of liberty, which had been violated with regard to many of them, and with the further violation of which all were threatened. * * * * * It was while the controversies between the mother country and the colonies were drawing towards a crisis, that Dr. Franklin, then in England as the political agent of Pennsylvania, of Massachusetts, and of Georgia, in an official letter to the Massachusetts Assembly, dated July 7th, 1773, recommended the assembling of a general congress of all the colonies. "As the strength of an empire," said he, "depends not only on the _union_ of its parts, but on their readiness for united exertion of their common force; and as the discussion of rights may seem unseasonable in the commencement of actual war, and the delay it might occasion be prejudicial to the common welfare; as likewise the refusal of one or a few colonies would not be so much regarded, if the others granted liberally, which perhaps by various artifices and motives they might be prevailed on to do; and as this want of concert would defeat the expectation of general redress, that might otherwise be justly formed; perhaps it would be best and fairest for the colonies, in a general congress now in peace to be assembled, or by means of the correspondence lately proposed, after a full and solemn assertion and declaration of their rights, to engage firmly with each other, that they will never grant aids to the crown in any general war, till those rights are recognized by the King and both houses of Parliament; communicating at the same time to the crown this their resolution. Such a step I imagine will bring the dispute to a crisis."[4] The first actual step towards this measure was taken in Virginia. A new House of Burgesses had been summoned by the royal Governor to meet in May, 1774. Soon after the members had assembled at Williamsburg, they received the news that, by an act of Parliament, the port of Boston was to be closed on the first day of the succeeding June, and that other disabilities were to be inflicted on the town. They immediately passed an order, setting apart the first day of June as a day of fasting, humiliation, and prayer, "to implore the Divine interposition for averting the heavy calamity which threatened destruction to their civil rights, and the evils of civil war, and to give them one heart and one mind firmly to oppose, by all just and proper means, every injury to American rights." Thereupon, the Governor dissolved the House. But the members immediately assembled at another place of meeting, and, having organized themselves as a committee, drew up and subscribed an Association, in which they declared that the interests of all the colonies were equally concerned in the late doings of Parliament, and advised the local Committee of Correspondence to consult with the committees of the other colonies on the expediency of holding a general Continental Congress. Pursuant to these recommendations, a popular convention was holden at Williamsburg, on the 1st of August, which appointed seven persons as delegates to represent the people of Virginia in a general Congress to be held at Philadelphia in the September following.[5] The Massachusetts Assembly met on the last of May, and, after negativing thirteen of the Councillors, Governor Gage adjourned the Assembly to meet at Salem on the 7th of June. When they came together at that place, the House of Representatives passed a resolve, declaring a meeting of committees from the several colonies on the continent to be highly expedient and necessary, to deliberate and determine upon proper measures to be recommended to all the colonies for the recovery and establishment of their just rights and liberties, civil and religious, and for the restoration of union and harmony with Great Britain. They then appointed five delegates[6] to meet the representatives of the other colonies in congress at Philadelphia, in the succeeding September. These examples were at once followed by the other colonies. In some of them, the delegates to the Continental Congress were appointed by the popular branch of the legislature, acting for and in behalf of the people; in others, they were appointed by conventions of the people called for the express purpose, or by committees duly authorized to make the appointment.[7] The Congress, styling themselves "the delegates appointed by the good people of these colonies," assembled at Philadelphia on the 5th of September, 1774, and organized themselves as a deliberative body by the choice of officers and the adoption of rules of proceeding. Peyton Randolph of Virginia was elected President, and Charles Thompson of Pennsylvania Secretary of the Congress. No precedent existed for the mode of action to be adopted by this assembly. There was, therefore, at the outset, no established principle which might determine the nature of the union; but that union was to be shaped by the new circumstances and relations in which the Congress found itself placed. There had been no general concert among the different colonies as to the numbers of delegates, or, as they were called in many of the proceedings, "committees" of the colonies, to be sent to the meeting at Philadelphia. On the first day of their assembling, Pennsylvania and Virginia had each six delegates in attendance; New York had five; Massachusetts, New Jersey, and South Carolina had four each; Connecticut had three; New Hampshire, Rhode Island, Delaware, and Maryland had two each. The delegates from North Carolina did not arrive until the 14th.[8] As soon as the choice of officers had taken place,[9] the method of voting presented itself as the first thing to be determined; and the difficulties arising from the inequalities between the colonies in respect to actual representation, population, and wealth, had to be encountered upon the threshold. Insuperable obstacles stood in the way of the adoption of interests as the basis of votes. The weight of a colony could not be ascertained by the numbers of its inhabitants, the amount of their wealth, the extent of their trade, or by any ratio to be compounded of all these elements, for no authentic evidence existed from which data could be taken.[10] As it was apparent, however, that some colonies had a larger proportion of members present than others, relatively to their size and importance, it was thought to be equally objectionable to adopt the method of voting by polls. In these circumstances, the opinion was advanced, that the colonial governments were at an end; that all America was thrown into one mass, and was in a state of nature; and consequently, that the people ought to be considered as represented in the Congress according to their numbers, by the delegations actually present.[11] Upon this principle, the voting should have been by polls. But neither the circumstances under which they were assembled, nor the dispositions of the members, permitted an adoption of the theory that all government was at an end, or that the boundaries of the colonies were effaced. The Congress had not assembled as the representatives of a people in a state of nature, but as the committees of different colonies, which had not yet severed themselves from the parent state. They had been clothed with no legislative or coercive authority, even of a revolutionary nature; compliance with their resolves would follow only on conviction of the utility of their measures; and all their resolves and all their measures were, by the express terms of many of their credentials, limited to the restoration of union and harmony with Great Britain, which would of course leave the colonies in their colonial state. The people of the continent, therefore, as a people in the state of nature, or even in a national existence as one people standing in a revolutionary attitude, had not then come into being. The nature of the questions, too, which they were to discuss, and of the measures which they were to adopt, were to be considered in determining by what method of voting those questions and measures should be decided. The Congress had been called to secure the _rights_ of the colonies. What were those rights? By what standard were they to be ascertained? By the law of nature, or by the principles of the English Constitution, or by the charters and fundamental laws of the colonies, regarded as compacts between the crown and the people, or by all of these combined? If the law of nature alone was to determine their rights, then all allegiance to the British crown was to be regarded as at an end. If the principles of the English Constitution, or the charters, were to be the standard, the law of nature must be excluded from consideration. This exclusion would of necessity narrow the ground, and deprive them of a resource to which Parliament might at last compel them to look.[12] In order, therefore, to leave the whole field open for consideration, and at the same time to avoid committing themselves to principles irreconcilable with the preservation of allegiance and their colonial relation to Great Britain, it was necessary to consider themselves as an assembly of committees from the different colonies, in which each colony should have one voice, through the delegates whom it had sent to represent and act for it. But, as if foreseeing the time when population would become of necessity the basis of congressional power, when the authority of Parliament should have given place to a system of American continental legislation, they inserted, in the resolve determining that each colony should have one vote, a caution that would prevent its being drawn into precedent. They declared, as the reason for the course which they adopted, that the Congress were not possessed of, or able to procure, the proper materials for ascertaining the importance of each colony.[13] It appears, therefore, very clear, that an examination of the relations of the first Congress to the colonies which instituted it will not enable us to assign to it the character of a government. Its members were not elected for the express purpose of making a revolution. It was an assembly convened from separate colonies, each of which had causes of complaint against the imperial government to which it acknowledged its allegiance to be due, and each of which regarded it as essential to its own interests to make common cause with the others, for the purpose of obtaining redress of its own grievances. The idea of separating themselves from the mother country had not been generally entertained by the people of any of the colonies. All their public proceedings, from the commencement of the disputes down to the election of delegates to the first Congress, including the instructions given to those delegates, prove, as we have seen, that they looked for redress and relief to means which they regarded as entirely consistent with the principles of the British Constitution.[14] Still, although this Congress did not take upon themselves the functions of a government, or propose revolution as a remedy for the wrongs of their constituents, they regarded and styled themselves as "the guardians of the rights and liberties of the colonies";[15] and in that capacity they proceeded to declare the causes of complaint, and to take the necessary steps to obtain redress, in what they believed to be a constitutional mode. These steps, however, although not directly revolutionary, had a revolutionary tendency. On the 6th of September, 1774, a resolve was passed, that a committee be appointed to state the rights of the colonies in general, the several instances in which those rights had been violated or infringed, and the means most proper to be pursued for obtaining a restoration of them. Another committee was ordered on the same day, to examine and report the several statutes affecting the trade and manufactures of the colonies. On the following day, it was ordered that the first committee should consist of two members, and the second of one member, from each of the colonies.[16] Two questions presented themselves to the first of these committees, and created a good deal of embarrassment. The first was, whether, in stating the rights of the colonies, they should recur to the law of nature, as well as to the British Constitution and the American charters and grants. The second question related to the authority which they should allow to be in Parliament;--whether they should deny it wholly, or deny it only as to internal affairs, admitting it as to external trade; and if the latter, to what extent and with what restrictions. It was soon felt that this question of the authority of Parliament was the essence of the whole controversy. Some denied it altogether. Others denied it as to every species of taxation; while others admitted it to extend to the regulation of external trade, but denied it as to all internal affairs. The discussions had not proceeded far, before it was perceived that this subject of the regulation of trade might lead directly to the question of the continuance of the colonial relations with the mother country. For this they were not prepared. It was apparent that the right of regulating the trade of the whole country, from the local circumstances of the colonies and their disconnection with each other, could not be exercised by the colonies themselves: it was thought that the aid, assistance, and protection of the mother country were necessary to them; and therefore, as a proper equivalent, that the colonies must admit the right of regulating the trade, to some extent and in some mode, to be in Parliament. The alternatives were, either to set up an American legislature, that could control and regulate the trade of the whole country, or else to give the power to Parliament. The Congress determined to do the latter; supposing that they could limit the admission, by denying that the power extended to taxation, but ceding at the same time the right to regulate the external trade of the colonies for the common benefit of the whole empire.[17] They grounded this concession upon "the necessities of the case," and "the mutual interests of both countries";[18] meaning by these expressions to assert that all legislative control over the external and internal trade of the colonies belonged of right to the colonies themselves, but, as they were part of an empire for which Parliament legislated, it was necessary that the common legislature of the whole empire should retain the regulation of the external trade, excluding all power of taxation for purposes of revenue, in order to secure the benefits of the trade of the whole empire to the mother country. The Congress, therefore, after having determined to confine their statement to such rights as had been infringed by acts of Parliament since the year 1763, unanimously adopted a Declaration of Rights, in which they summed up the grievances and asserted the rights of the colonies. This document placed the rights of the colonies upon the laws of nature, the principles of the English Constitution, and the several charters or compacts. It declared, that, as the colonies were not, and from their local situation could not be, represented in the English Parliament, they were entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation could alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as had been before accustomed. At the same time, from the necessity of the case and from a regard to the mutual interests of both countries, they cheerfully consented to the operation of such acts of Parliament as were in good faith limited to the regulation of their external commerce, for the purpose of securing the commercial advantages of the whole to the mother country, and the commercial benefit of its respective members; excluding every idea of taxation, internal and external, for raising a revenue on the subjects in America, without their consent.[19] In addition to this, they asserted, as great constitutional rights inherent in the people of all these colonies, that they were entitled to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England; to the common law of England, and especially to trial by a jury of the vicinage; to the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws; and to the right of peaceably assembling to consider grievances and to petition the King.[20] In order to enforce their complaints upon the attention of the government and people of Great Britain, and as the sole means which were open to them, short of actual revolution, of coercing the ministry into a change of measures, they resolved that after the 10th of September, 1775, the exportation of all merchandise, and every commodity whatsoever, to Great Britain, Ireland, and the West Indies, ought to cease, unless the grievances of America should be redressed before that time; and that after the first day of December, 1774, there should be no importation into British America, from Great Britain or Ireland, of any goods, wares, or merchandise whatever, or from any other place, of any such goods, wares, or merchandise as had been exported from Great Britain or Ireland, and that no such goods, wares, or merchandise be used or purchased.[21] They then prepared an association, or agreement, of non-importation, non-exportation, and non-consumption, in order, as far as lay in their power, to cause a general compliance with their resolves. This association was subscribed by every member of the Congress, and was by them recommended for adoption to the people of the colonies, and was very generally adopted and acted upon.[22] They resorted to this as the most speedy, effectual, and peaceable measure to obtain a redress of the grievances of which the colonies complained; and they entered into the agreement on behalf of the inhabitants of the several colonies for which they acted. * * * * * This Congress, which sat from the 5th of September to the 26th of October, 1774, had thus made the restoration of commercial intercourse between the colonies and the other parts of the British empire to depend upon the repeal by Parliament of the obnoxious measures of which they complained, and upon the recognition of the rights which they asserted; for although their acts had not the foundation of laws, the general adoption of their recommendations throughout the colonies gave them a power that laws rarely possess. Before they adjourned, they recommended that another Congress of all the colonies should be held at Philadelphia on the 10th of the following May, unless their grievances were redressed before that time, and that the deputies to such new Congress should be chosen immediately.[23] But while the Continental Congress were engaged in the adoption of these measures of constitutional resistance, and still acknowledged their colonial relations to the imperial government, the course of events in Massachusetts had put an end to the forms of law and government in that colony, as established or upheld by imperial authority. The last Assembly held in the Province upon the principles of its charter had been dissolved by the Governor's proclamation, at Salem, on the 17th of June, 1774. The new law for the alteration of the government had taken effect; and in August the Governor received from England a list of thirty-six councillors, who were to be called into office by the King's writ of _mandamus_, instead of being elected, as under the charter, by the House of Representatives. Two thirds of the number accepted their appointment; but popular indignation, treating them as enemies of their country, compelled the greater part of them to renounce their offices. The new judges were prevented everywhere from proceeding with the business of the courts, which were obstructed by assemblies of the people, who would permit no judge to exercise his functions, save in accordance with the ancient laws and usages of the Colony. Writs had been issued for a new General Assembly, which was to meet at Salem in October; but it was found, that, while the old constitution had been taken away by act of Parliament, the new one had been rejected by the people. The compulsory resignation of so many of the councillors left that body without power, and the Governor deemed it expedient to countermand the writs by proclamation, and to defer the holding of the Assembly until the popular temper should have had time to cool. But the legality of the proclamation was denied; the elections were everywhere held, and the members elect assembled at Salem, pursuant to the precepts. There they waited a day for the Governor to attend, administer the oaths, and open the session; but as he did not appear, they resolved themselves into a Provincial Congress, to be joined by others who had been or might be elected for that purpose, and adjourned to the town of Cambridge, to take into consideration the affairs of the Colony, in which the regular and established government was now at an end. Their acts were at first couched in the form of recommendations to the people, whose ready compliance gave to them the weight and efficacy of laws, and there was thus formed something like a new and independent government. Under the form of recommendation and advice, they settled the militia, regulated the public revenue, provided arms, and prepared to resist the British troops. In December, 1774, they elected five persons to represent the Colony in the Continental Congress that was to assemble at Philadelphia in the ensuing May. They were met by a proclamation, issued by the Governor, in which their assembly was declared unlawful, and the people were prohibited, in the King's name, from complying with their recommendations, requisitions, or resolves. Through the winter, the Governor held the town of Boston, with a considerable body of royal troops, but the rest of the Province generally yielded obedience to the Provincial Congress. In this posture of affairs, the encounter between a detachment of the King's forces and a body of militia, commonly called the battle of Lexington, occurred, on the 19th of April, 1775. FOOTNOTES: [2] Story's Commentaries on the Constitution, § 160. [3] That a union of the colonies into one general government, for any purpose, could not take place without the sanction of Parliament, was always assumed in both countries. The sole instance in which a plan of union was publicly proposed and acted upon, before the Revolution, was in 1753-4, when the Board of Trade sent instructions to the Governor of New York to make a treaty with the Six Nations of Indians; and the other colonies were also instructed to send commissioners to be present at the meeting, so that all the provinces might be comprised in one general treaty, to be made in the King's name. It was also recommended by the home government, that the commissioners at this meeting should form a plan of union among the colonies for their mutual protection and defence against the French. Twenty-five commissioners assembled at Albany in May, 1754, from New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, and Maryland. In this body, a plan of union was digested and adopted, which was chiefly the work of Dr. Franklin. It was agreed that an act of Parliament was necessary to authorize it to be carried into effect. It was rejected by all the colonial Assemblies before which it was brought, and in England it was not thought proper by the Board of Trade to recommend it to the King. In America it was considered to have too much of _prerogative_ in it, and in England to be too _democratic_. It was a comprehensive scheme of government, to consist of a Governor-General, or President-General, who was to be appointed and supported by the crown, and a Grand Council, which was to consist of one member chosen by each of the smaller colonies, and two or more by each of the larger. Its duties and powers related chiefly to defence against external attacks. It was to have a general treasury, to be supplied by an excise on certain articles of consumption. See the history and details of the scheme, in Sparks's Life and Works of Franklin, I. 176, III. 22-55; Hutchinson's History of Massachusetts, III. 23; Trumbull's History of Connecticut, II. 355; Pitkin's History of the United States, I. 140-146. In 1788, Franklin said of it: "The different and contradictory reasons of dislike to my plan make me suspect that it was really the true medium; and I am still of opinion it would have been happy for both sides, if it had been adopted. The colonies so united would have been sufficiently strong to have defended themselves: there would have been no need of troops from England: of course the subsequent pretext for taxing America, and the bloody contest it occasioned, would have been avoided. But such mistakes are not new: history is full of the errors of states and princes." (Life, by Sparks, I. 178.) We may not join in his regrets now. [4] It is not certain by whom the first suggestion of a Continental Congress was made. Thomas Cushing, Speaker of the Massachusetts Assembly, and a correspondent of Dr. Franklin, appears to have expressed to him the opinion, previously to the date of Franklin's official letter quoted in the text, that a congress would grow out of the committees of correspondence which had been recommended by the Virginia House of Burgesses. But Mr. Sparks thinks that no other direct and public recommendation of the measure can be found before the date of Franklin's letter to the Massachusetts Assembly. Sparks's Life of Franklin, I. 350, note. In the early part of the year 1774, the necessity of such a congress began to be popularly felt throughout all the colonies. Sparks's Washington, II. 326. [5] These delegates were Peyton Randolph, Richard Henry Lee, George Washington, Patrick Henry, Richard Bland, Benjamin Harrison, and Edmund Pendleton. [6] Thomas Cushing, Samuel Adams, Robert Treat Paine, James Bowdoin, and John Adams. [7] The delegates in the Congress of 1774 from New Hampshire were appointed by a Convention of Deputies chosen by the towns, and received their credentials from that Convention. In Rhode Island, they were appointed by the General Assembly, and commissioned by the Governor. In Connecticut, they were appointed and instructed by the Committee of Correspondence for the Colony, acting under authority conferred by the House of Representatives. In New York, the mode of appointment was various. In the city and county of New York, the delegates were elected by popular vote taken in seven wards. The same persons were also appointed to act for the counties of West Chester, Albany, and Duchess, by the respective committees of those counties; and another person was appointed in the same manner for the county of Suffolk. The New York delegates received no other instructions than those implied in the certificates, "to attend the Congress and to represent" the county designated. In New Jersey, the delegates were appointed by the committees of counties, and were simply instructed "to represent" the Colony. In Pennsylvania, they were appointed and instructed by the House of Assembly. In the counties of New Castle, Kent, and Sussex on Delaware, delegates were elected by a convention of the freemen assembled in pursuance of circular letters from the Speaker of the House of Assembly. In Maryland, the appointment was by committees of the counties. In Virginia, it was by a popular convention of the whole Colony. In South Carolina, it was by the House of Commons. Georgia was not represented in this Congress. [8] Journals, I. 1, 12. [9] The President and Secretary appear to have been chosen _viva voce_ or by a hand vote. John Adam's Works, II. 365. [10] Adams, II. 366. [11] This opinion, we are told by Mr. Adams, was advanced by Patrick Henry. See notes of the debate, in Adams, II. 366, 368. [12] See the very interesting notes of their debates in Adams's Works, II. 366, 370-377. [13] Journals, I. 10. [14] The instructions embraced in the credentials of the delegates to the first Congress were as follows:--NEW HAMPSHIRE,--"to devise, consult, and adopt such measures as may have the most likely tendency to extricate the colonies from their present difficulties; to secure and perpetuate their rights, liberties, and privileges; and to restore that peace, harmony, and mutual confidence which once happily subsisted between the parent country and her colonies." MASSACHUSETTS,--"to deliberate and determine upon wise and proper measures, to be by them recommended to all the colonies, for the recovery and establishment of their just rights and liberties, civil and religious, and the restoration of union and harmony between Great Britain and the colonies, most ardently desired by all good men." RHODE ISLAND,--"to meet and join with the other commissioners or delegates from the other colonies in consulting upon proper measures to obtain a repeal of the several acts of the British Parliament for levying taxes upon his Majesty's subjects in America without their consent, and particularly the commercial connection of the colonies with the mother country, for the relief of Boston and the preservation of American liberty." VIRGINIA,--"to consider of the most proper and effectual manner of so operating on the commercial connection of the colonies with the mother country, as to procure redress for the much injured Province of Massachusetts Bay, to secure British America from the ravage and ruin of arbitrary taxes, and speedily to procure the return of that harmony and union so beneficial to the whole empire, and so ardently desired by all British America." SOUTH CAROLINA,--"to consider the acts lately passed and bills depending in Parliament with regard to the port of Boston and Colony of Massachusetts Bay, which acts and bills, in the precedent and consequences, affect the whole continent of America;--also the grievances under which America labors by reason of the several acts of Parliament that impose taxes or duties for raising a revenue, and lay unnecessary restraints and burdens on trade;--and of the statutes, parliamentary acts, and royal instructions, which make an invidious distinction between his Majesty's subjects in Great Britain and America; with full power and authority to concert, agree to, and effectually prosecute such legal measures as, in the opinion of the said deputies and of the deputies so to be assembled, shall be most likely to obtain a repeal of the said acts and a redress of these grievances." The delegates from New York and New Jersey were simply instructed "to represent" those colonies in the Congress. Journals, I. 2-9. [15] Letter of the Congress to Governor Gage, October 10, 1774. Journals, I. 25, 26. [16] Additions were made to it. [17] Works of John Adams. [18] See the origin of these expressions explained, in Adams's Works, II. 373-375. [19] Journals, I. 29. [20] Ibid. They adopted also an Address to the People of Great Britain, and a Petition to the King, embodying similar principles with those asserted in the Declaration of Rights. Ibid. 38, 67. [21] Journals, I. 21. [22] This association, signed by the delegates, of Maryland, Virginia, North Carolina, and South Carolina, as well as of the other colonies, contained, among other things, the following agreement:--"We will neither import nor purchase any slaves imported after the first day of December next; after which time we will wholly discontinue the slave-trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures, to those who are concerned in it." Journals, I. 33. [23] Journals, I. 56. Oct. 22, 1774. CHAPTER II 1775-1776. THE SECOND CONTINENTAL CONGRESS.--FORMATION AND CHARACTER OF THE REVOLUTIONARY GOVERNMENT.--APPOINTMENT OF A COMMANDER-IN-CHIEF.--FIRST ARMY OF THE REVOLUTION. A new Continental Congress assembled at Philadelphia on the 10th of May, 1775; and in order to observe the growth of the Union, it is necessary to trace the organization of this body, and to describe briefly the kind of sovereignty which it exercised, from the time of its assembling until the adoption and promulgation of the Declaration of Independence.[24] The delegates to this Congress were chosen partly by the popular branch of such of the colonial legislatures as were in session at the time, the choice being afterwards ratified by conventions of the people; but they were principally appointed by conventions of the people held in the various colonies. All these appointments, except those made in New York, took place before the battle of Lexington, and most of them had been made in the course of the previous winter.[25] The credentials of the delegates, therefore, while they conferred authority to adopt measures to recover and establish American rights, still expressed, in many instances, a desire for the restoration of harmony between Great Britain and her colonies. In some cases, however, this desire was not expressed, but a naked authority was granted, to consent and agree to all such measures as the Congress should deem necessary and effectual to obtain a redress of American grievances. When this Congress assembled, it seems to have been tacitly assumed that each colony should continue to have one vote through its delegation actually present. All the thirteen colonies were represented at the opening of the session, except Georgia and Rhode Island. Three days after the session commenced, a delegate appeared from the Parish of St. Johns in Georgia, who was admitted to a seat, but did not claim the right of voting for the colony. On the 15th of May, a delegation from Rhode Island appeared and took their seats. The credentials of the delegates contained no limitation of their powers with respect to time, with the exception of those from Massachusetts and South Carolina, whose authority was not to extend beyond the end of the year. The Congress continued in session until the 1st of August, and then adjourned for a recess to the 5th of September. When they were again assembled, the delegations of several of the colonies were renewed, with different limitations as to their time of service. Georgia sent a full delegation, who took their seats on the 13th of September. Still later, the delegations of several other colonies were renewed from time to time, and this practice was pursued both before and after the Declaration of Independence, thus rendering the Congress a permanent body.[26] Notwithstanding the absence of any express authority in their instructions to enter upon revolutionary measures, the circumstances under which the Congress assembled placed it in the position and cast upon it the powers of a revolutionary government. Civil war had actually commenced, and blood had been shed. Whether this war was to be carried on for independence, or was only to be waged until the British ministry could be compelled to acknowledge the rights which the colonies had asserted, the Congress necessarily became, at once, the organ of the common resistance of the colonies against the parent state. The first thing which evinces its new relation to the country was the application made to it by the Provincial Congress of Massachusetts, immediately after the battle of Lexington, for direction and assistance. While they informed the Continental Congress that they had proceeded, at once, to raise a force of thirteen thousand six hundred men, and had made proposals to the other New England colonies to furnish men in the same proportions, stating that the sudden exigency of their affairs precluded the possibility of waiting for direction, they suggested that an American army ought forthwith to be raised for the common cause.[27] In the same manner, the city and county of New York applied for the advice of Congress, how to conduct themselves with regard to the British troops expected in that quarter. These applications caused the Congress at once to resolve itself into a committee of the whole, to take into consideration the state of America.[28] These proceedings were soon followed by another application on the part of the Provincial Convention of Massachusetts, setting forth the difficulties under which they were laboring for want of a regular form of government; requesting explicit advice respecting the formation of a new government; and offering to submit to such a general plan as the Congress might direct for the colonies, or to endeavor to form such a government for themselves as should not only promote their own advantage, but the union and interest of the whole country.[29] Placed in this manner at the head of American affairs, the Continental Congress proceeded, at once, to put the country into a state of defence, and virtually assumed a control over the military operations of all the colonies. They appointed committees to prepare reports on military measures: first, to recommend what posts should be occupied in the city of New York; secondly, to devise ways and means for procuring ammunition and military stores; thirdly, to make an estimate of the moneys necessary to be raised; and fourthly, to prepare rules and regulations for the government of the army. They then proceeded to create a continental, or national army. To the battle of Lexington had succeeded the investment of Boston, by an army composed of regiments raised by the New England provinces, under the command of General Ward of Massachusetts. This army was adopted by the Congress; and, with other forces raised for the common defence, became known and designated as the American Continental Army.[30] Six companies of riflemen were ordered to be immediately raised in Pennsylvania, two in Maryland, and two in Virginia, and directed to join the army near Boston, and to be paid by the continent.[31] On the 15th of June, 1775, Colonel George Washington, one of the delegates in Congress from Virginia, was unanimously chosen to be commander-in-chief of the continental forces.[32] Having accepted the appointment, he received from the Congress a commission, together with a resolution by which they pledged their lives and fortunes to maintain, assist, and adhere to him in his great office, and a letter of instructions, in which they charged him to make it his special care, "that the liberties of America receive no detriment."[33] In the commission given to the general, the style of "the United Colonies" was for the first time adopted, and the defence of American Liberty was assumed as the great object of their union.[34] On the 21st of June, Washington left Philadelphia to take command of the army, and arrived at Cambridge in Massachusetts on the 2d of July. Four major-generals and eight brigadier-generals were also appointed by the Congress for the continental army; rules and regulations for its government were adopted and proclaimed, and the pay of the officers and privates was fixed.[35] The Congress also proceeded, as the legislative authority of the United Colonies, to create a continental currency, in order to defray the expenses of the war. This was done by issuing two millions of dollars, in bills of credit, for the redemption of which the faith of the confederated colonies was pledged. A quota of this sum was apportioned to each colony, and each colony was made liable to discharge its proportion of the whole, but the United Colonies were obligated to pay any part which either of the colonies should fail to discharge.[36] The first of these quotas was made payable in four, the second in five, the third in six, and the fourth in seven years from the last day of November, 1775, and the provincial assemblies or conventions were required, by the resolves of the Congress, to provide taxes in their respective provinces or colonies, to discharge their several quotas.[37] The Congress also directed reprisals to be made, both by public and private armed vessels, against the ships and goods of the inhabitants of Great Britain found on the high seas, or between high and low water-mark; this being a measure of retaliation against an act of Parliament, which had authorized the capture and condemnation of American vessels, and which was considered equivalent to a declaration of war. They also threw open the ports of the United Colonies to all the world, except the dominions and dependencies of Great Britain. Further, they established a general Treasury Department, by the appointment of two joint Treasurers of the United Colonies, who were required to give bonds for the faithful performance of the duties of their office,[38] and they organized a general Post-Office, by the appointment of a Postmaster-General for the United Colonies, to hold his office at Philadelphia, to appoint deputies, and to establish a line of posts from Falmouth in Massachusetts to Savannah in Georgia, with such cross posts as he should judge proper.[39] The proceedings of the Congress on the subject of the Militia were, of course, in the nature of recommendations only. They advised the arming and training of the militia of New York, in May, 1775,[40] and in July they recommended to all the colonies to enroll all the able-bodied, effective men among their inhabitants, between sixteen and fifty years of age, and to form them into proper regiments.[41] The powers of the Congress to call into the field the militia thus embodied were considered to be subject to the consent of those exercising the executive powers of government in the colony, for the time being.[42] The relations of the country with the Indian tribes and nations were deemed to be properly within the exclusive jurisdiction of the Congress. Three departments of Indian Affairs, Northern, Southern, and Middle, with separate commissioners for each, were therefore established in July, having power to treat with the Indians in the name and on behalf of the United Colonies.[43] Negotiations and treaties were entered into by these departments, and all affairs with the Indians were conducted by them, under the direction and authority of the Congress.[44] With regard to those inhabitants of the country who adhered to the royalist side of the controversy, the Congress of 1775-6 did not assume and exercise directly the powers of arrest or restraint, but left the exercise of such powers to the provincial assemblies, or conventions, and committees of safety, in the respective colonies, with recommendations from time to time as to the mode in which such powers ought to be exercised.[45] Besides all this, the different applications made to the Congress by the people of Massachusetts,[46] of New Hampshire,[47] of Virginia,[48] and of South Carolina, concerning the proper exercise of the powers of government in those colonies, and the answers to those applications, furnish very important illustrations of the position in which the Congress were placed. To the people of Massachusetts, they declared that no obedience was due to the act of Parliament for altering their charter, and that, as the Governor and Lieutenant-Governor would not observe the directions of that instrument, but had endeavored to subvert it, their offices ought to be considered vacant; and, as the Council was actually vacant, in order to conform as near as might be to the spirit and substance of the charter, they recommended to the Provincial Convention to write letters to the inhabitants of the several towns entitled to representation in the Assembly, requesting them to choose representatives, and requesting the Assembly when chosen to elect councillors; adding their wish, that these bodies should exercise the powers of government until a Governor of the King's appointment would consent to govern the colony according to its charter.[49] The Provincial Conventions of New Hampshire, Virginia, and South Carolina were advised to call a full and free representation of the people, in order to establish such a form of government as, in their judgment, would best promote the happiness of the people and most effectually secure peace and good order in their Provinces, during the continuance of the dispute with Great Britain.[50] This advice manifestly contemplated the establishment of provisional governments only. But between the date of these last proceedings and the following spring a marked change took place, both in the expectations and wishes of the people of most of the colonies, with regard to an accommodation of the great controversy. The last petition of the Congress to the King was refused a hearing in Parliament, as emanating from an unlawful assembly, in arms against their sovereign. In November, the town of Falmouth in Massachusetts was bombarded and destroyed by the King's cruisers. In the latter part of December, an act was passed in Parliament, prohibiting all trade and commerce with the colonies; warranting the capture and condemnation of all American vessels, with their cargoes, and authorizing the commanders of the King's ships to compel the masters, crews, and other persons found in such vessels, to enter the King's service. The act also empowered the King to appoint commissioners, with authority to grant pardon, on submission, to individuals and to colonies, and after such submission to exempt them from its operation.[51] Great preparations were made to reduce the colonies to the submission required by this act, and a part of the troops that were to be employed were foreign mercenaries. The necessity of a complete separation from the mother country, and the establishment of independent governments, had, therefore, in the winter of 1775-6, become apparent to the people of America. Accordingly, the Congress, asserting it to be irreconcilable to reason and good conscience for the people of the colonies any longer to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and declaring that the exercise of every kind of authority under that crown ought to be suppressed, and a government of the people of the colonies substituted in its place, recommended to the respective assemblies and conventions of the colonies, where no government sufficient for the exigencies of their affairs had been already established, to adopt such a government as in the opinion of the representatives of the people would best conduce to the happiness and safety of their constituents and of America in general.[52] * * * * * It is apparent, therefore, that, previously to the Declaration of Independence, the people of the several colonies had established a national government of a revolutionary character, which undertook to act, and did act, in the name and with the general consent of the inhabitants of the country. This government was established by the union, in one body, of delegates representing the people of each colony; who, after they had thus united for national purposes, proceeded, in their respective jurisdictions, by means of conventions and other temporary arrangements, to provide for their domestic concerns by the establishment of local governments, which should be the successors of that authority of the British crown which they had "everywhere suppressed." The fact that these local or state governments were not formed until a union of the people of the different colonies for national purposes had already taken place, and until the national power had authorized and recommended their establishment, is of great importance in the constitutional history of this country; for it shows that no colony, acting separately for itself, dissolved its own allegiance to the British crown, but that this allegiance was dissolved by the supreme authority of the people of all the colonies, acting through their general agent, the Congress, and not only declaring that the authority of Great Britain ought to be suppressed, but recommending that each colony should supplant that authority by a local government, to be framed by and for the people of the colony itself. The powers exercised by the Congress, before the Declaration of Independence, show, therefore, that its functions were those of a revolutionary government. It is a maxim of political science, that, when such a government has been instituted for the accomplishment of great purposes of public safety, its powers are limited only by the necessities of the case out of which they have arisen, and of the objects for which they were to be exercised. When the acts of such a government are acquiesced in by the people, they are presumed to have been ratified by the people. To the case of our Revolution, these principles are strictly applicable, throughout. The Congress assumed, at once, the exercise of all the powers demanded by the public exigency, and their exercise of those powers was fully acquiesced in and confirmed by the people. It does not at all detract from the authoritative character of their acts, nor diminish the real powers of the Revolutionary Congress, that it was obliged to rely on local bodies for the execution of most of its orders, or that it couched many of those orders in the form of recommendations. They were complied with and executed, in point of fact, by the provincial congresses, conventions, and local committees, to such an extent as fully to confirm the revolutionary powers of the Congress, as the guardians of the rights and liberties of the country. But we shall see, in the further progress of the history of the Congress, that while its powers remained entirely revolutionary, and were consequently coextensive with the great national objects to be accomplished, the want of the proper machinery of civil government and of independent agents of its own rendered it wholly incapable of wielding those powers successfully. * * * * * NOTE TO PAGE 33. ON WASHINGTON'S APPOINTMENT AS COMMANDER-IN-CHIEF. The circumstances which attended the appointment of Washington to this great command are now quite well known. He had been a member of the Congress of 1774, and his military experience and accomplishments, and the great resources of his character, had caused his appointment on all the committees charged with making preparations for the defence of the colonies. Returned as a delegate from Virginia to the Congress of 1775, his personal qualifications pointed him out as the fittest person in the whole country to be invested with the command of any army which the United Colonies might see fit to raise; and it is quite certain that there would have been no hesitation about the appointment, if some political considerations had not been suggested as obstacles. At the moment when the choice was to be made, the scene of actual operations was in Massachusetts, where an army composed of troops wholly raised by the New England colonies, and under the command of General Ward, of that Province, was besieging the enemy in Boston. This army was to be adopted by the Congress into the service of the continent, and serious doubts were entertained by some of the members of the Congress as to the policy of appointing a Southern general to the command of it, and a good deal of delicacy was felt on account of General Ward, who, it was thought, might consider himself injured by such an appointment. On the other hand, there were strong reasons for selecting a general-in-chief from Virginia. That colony had taken the lead, among the Southern provinces, in the cause of the continent, and the appointment seemed to be due to her, if it was to be made upon political considerations. The motives for this policy were deemed sufficient to outweigh the objections arising from the character and situation of the army which the general would, in the first instance, have to command. But after all, it cannot be doubted, that the preëminent qualifications of Washington had far more weight with the majority of the Congress, than any dictates of mere policy, between one part of the Union and another, or any local jealousies or sectional ambition. Mr. John Adams, whose recently published autobiography contains some statements on this subject, speaks of the existence of a Southern party against a Northern, and a jealousy against a New England army under the command of a New England general, which, he says, he discovered after the Congress had been some time in session, and after the necessity of having an army and a general had become a topic of conversation. (Works, II. 415.) In a letter, also, written by Mr. Adams in 1822 to Timothy Pickering, he states that, on the journey to Philadelphia, he and a party of his colleagues, the delegates from Massachusetts to this Congress, were met at Frankfort by Dr. Rush, Mr. Mifflin, Mr. Bayard, and others of the Philadelphia patriots, who desired a conference with them; that, in this conference, the Philadelphia gentlemen strongly advised the Massachusetts delegates not to come forward with bold measures, or to endeavor to take the lead; and represented that Virginia was the most populous State in the Union, proud of its ancient dominions, and that "they [the Virginians] think they have a right to take the lead, and the Southern States, and the Middle States, too, are too much disposed to yield it to them." "I must confess," says Mr. Adams, "that there appeared so much wisdom and good sense in this, that it made a deep impression on my mind, and it had an equal effect on all my colleagues." "This conversation," he continues, "and the principles, facts, and motives suggested in it, have given a color, complexion, and character to the whole policy of the United States from that day to this. _Without it, Mr. Washington would never have commanded our armies_; nor Mr. Jefferson have been the author of the Declaration of Independence; nor Mr. Richard Henry Lee the mover of it; nor Mr. Chase the mover of foreign connections. _If I have ever had cause to repent of any part of this policy, that repentance ever has been and ever will be unavailing._ I had forgot to say, nor had Mr. Johnson ever have been the nominator of Washington for general." (Works, II. 512, 513.) Without impeaching the accuracy of Mr. Adams's recollection, on the score of his age when this letter was written, and without considering here how or why Mr. Jefferson came to be the author of the Declaration of Independence, it is believed that Mr. Adams states other facts, in his autobiography, sufficient to show that motives of policy towards Virginia were _not_ the sole or the principal reasons why Washington was elected general. Mr. Adams states in his autobiography, that at the time when he observed the professed jealousy of the South against a New England army under the command of a Northern general, it was very visible to him "that Colonel Washington was their object"; "and," he adds, "so many of our stanchest men were in the plan, that we could carry nothing without conceding it." (Works, II. 415.) When Mr. Adams came, as he afterwards did, to put himself at the head of this movement, and to propose in Congress that the army at Cambridge should be adopted, and that a general should be appointed, he referred directly to Washington as the person whom he had in his mind, and spoke of him as "a gentleman from Virginia who was among us and very well known to all of us, a gentleman whose skill and experience as an officer, whose independent fortune, great talents, and excellent universal character, would command the approbation of all America, and unite the cordial exertions of all the colonies better than any other person in the Union. Mr. Washington, who happened to sit near the door, as soon as he heard me allude to him, from his usual modesty, darted into the library-room." (Works, II. 417.) It is quite clear, therefore, that Mr. Adams put the appointment of Washington, in public, upon his qualifications and character, known all over the Union. He further states, that the subject came under debate, and that nobody opposed the appointment of Washington on account of any personal objection to him; and the only objection which he mentions as having been raised, was on the ground that the army near Boston was all from New England, and that they had a general of their own, with whom they were entirely satisfied. He mentions one of the Virginia delegates, Mr. Pendleton, as concurring in this objection; that Mr. Sherman of Connecticut and Mr. Cushing of Massachusetts also concurred in it, and that Mr. Paine of Massachusetts expressed strong personal friendship for General Ward, but gave no opinion upon the question. Afterwards, he says, the subject being postponed to a future day, "pains were taken out of doors to obtain a unanimity, and the voices were generally so clearly in favor of Washington, that the dissentient members were persuaded to withdraw their opposition, and Mr. Washington was nominated, I believe, by Mr. Thomas Johnson of Maryland, unanimously elected, and the army adopted." (Ibid.) It is worth while to inquire, therefore, what were the controlling reasons, which so easily and so soon produced this striking unanimity. If it was brought about mainly by the exertions of a Southern against a Northern party, and by the yielding of Northern men to the Virginians from motives of policy, it would not have been accomplished with so much facility, although even a Washington were the candidate of Virginia. Sectional jealousies and sectional parties inflame each other; the struggles which they cause are protracted; and the real merits of men and things are lost sight of in the passions which they arouse. If policy, as a leading or a principal motive, gave to General Washington the great body of the Northern votes, there would have been more dissentients from that policy than any of the accounts authorize us to suppose there were, at any moment, while the subject was under consideration. Nor does the previous conduct of Virginia warrant the belief, that her subsequent exertions in the cause of American liberty were mainly purchased by the honors bestowed upon her great men, or by so much of precedence as was yielded in the public councils to the unquestionable abilities of her statesmen. Some of them had undoubtedly been in favor of measures of conciliation to a late period; and some of them, as Washington, Patrick Henry, and Richard Henry Lee, had been, from an early period, convinced that the sword must decide the controversy. They were perhaps as much divided upon this point, until the army at Boston was adopted, as the leading men of other colonies. But when the necessity of that measure became apparent, it was the peculiar happiness of Virginia to be able to present to the country, as a general, a man whose character and qualifications threw all local and political objects at once into the shade. In order to form a correct judgment, at the present day, of the motives which must have produced a unanimity so remarkable and so prompt, we have only to recollect the previous history of Washington, as it was known to the Congress, at the moment when he shrank from the mention of his name in that assembly. He was forty-three years of age. From early youth, he had had a training that eminently fitted him for the great part which he was afterwards to play, and which unfolded the singular capacities of his character to meet the extraordinary emergencies of the post to which he was subsequently called. That training had been both in military and in civil life. His military career had been one of much activity and responsibility, and had embraced several brilliant achievements. In 1751, it became necessary to put the militia of Virginia in a condition to defend the frontiers against the French and the Indians. The province was divided into military districts, in each of which an adjutant-general, with the rank of major, was commissioned to drill and inspect the militia. Washington, at the age of nineteen, received the appointment to one of these districts; and in the following year, the province was again divided into four grand military divisions, of which the northern was assigned to him as adjutant-general. In 1753, the French crossed the lakes, to establish posts on the Ohio, and were joined by the Indians. Major Washington was sent by the Governor of Virginia to warn them to retire. This expedition was one of difficulty and of delicacy. He crossed the Alleghany Mountains, reached the Ohio, had interviews with the French commander and the Indians, and returned to Williamsburg to make report to the Governor. Of this journey, full of perilous adventures and narrow escapes, he kept a journal, which was published by the Governor; was copied into most of the newspapers of the other colonies; and was reprinted in London, as a document of much importance, exhibiting the views and designs of the French. In 1754, he was appointed, with the rank of lieutenant-colonel, second in command of the provincial troops raised by the Legislature to repel the French invasion. On the first encounter with a party of the enemy under Jumonville, on the 28th of May, 1754, the chief command devolved on Washington, in the absence of his superior. The French leader was killed, and most of his party were taken prisoners. Washington commanded also at the battle of the Great Meadows, and received a vote of thanks for his services from the House of Burgesses. This was in 1754, when he was at the age of twenty-two. During the next year, in consequence of the effect of some new arrangement of the provincial troops, he was reduced from the rank of colonel to that of captain, and thereupon retired from the army, with the consolation that he had received the thanks of his country for the services he had rendered. In 1755, he consented to serve as aide-de-camp to General Braddock, who had arrived from England with two regiments of regular troops. In this capacity he served in the battle of the Monongahela with much distinction. The two other aids were wounded and disabled early in the action, and the duty of distributing the General's orders devolved wholly upon Washington. It was in this battle that he acquired with the Indians the reputation of being under the special protection of the Great Spirit, because he escaped the aim of many of their rifles, although two horses were shot under him, and his dress was perforated by four bullets. His conduct on this occasion became known and celebrated throughout the country; and when he retired to Mount Vernon, as he did soon after, at the age of three-and-twenty, he not only carried with him a decisive reputation for personal bravery, but he was known to have given advice to Braddock, before the action, which all men saw, after it, would, if it had been duly heeded, have prevented his defeat. But he was not allowed to remain long in retirement. In August, 1755, he was appointed commander-in-chief of all the provincial forces of Virginia, and immediately entered upon the duties of reorganizing the old and raising new troops, in the course of which he visited all the outposts along the frontier. Soon afterwards, a dispute about rank having arisen with a person who claimed to take precedence of provincial officers because he had formerly held the King's commission, it became necessary for Colonel Washington to make a visit to Boston, in order to have the point decided by General Shirley, the commander-in-chief of his Majesty's armies in America. He commenced his journey on the 4th of February, 1756, and passed through Philadelphia, New York, New London, Newport, and Providence, and visited the Governors of Pennsylvania and New York. In all the principal cities his character, and his remarkable escape at Braddock's defeat, made him the object of a strong public interest. At Boston, he was received with marked distinction by General Shirley and by the whole society of the town, and the question of rank was decided according to his wishes. General Shirley explained to him the intended operations of the next campaign; and, after an absence from Virginia of seven weeks, he returned to resume his command. The next three years were spent in the duties of this laborious and responsible position, the difficulties and embarrassments of which bore a strong resemblance to those which he afterwards had to encounter in the war of the Revolution. In 1758, he commanded the Virginia troops in the expedition against Fort Duquesne, under General Forbes. Great deference was paid by that officer to his opinions and judgment, in arranging the line of march and order of battle, on this important expedition; for the fate of Braddock was before him. The command of the advanced division, consisting of one thousand men, was assigned to him, with the temporary rank of brigadier. When the army had approached within fifty miles of Fort Duquesne, the French deserted it; its surrender to the English closed the campaign; and in December Washington resigned his commission, and retired to Mount Vernon. What he had been, and what he then was, to the Colony of Virginia, is shown by the Address presented to him by the officers of the provincial troops, on his retirement. "In our earliest infancy," said they, "you took us under your tuition, trained us up in the practice of that discipline which alone can constitute good troops, from the punctual observance of which you never suffered the least deviation. Your steady adherence to impartial justice, your quick discernment, and invariable regard to merit, wisely intended to inculcate those genuine sentiments of true honor and passion for glory, from which the greatest military achievements have been derived, first heightened our natural emulation and our desire to excel. How much we improved by those regulations and your own example, with what alacrity we have hitherto discharged our duty, with what cheerfulness we have encountered the severest toils, especially while under your particular directions, we submit to yourself, and flatter ourselves that we have in a great measure answered your expectations.... It gives us additional sorrow, when we reflect, to find our unhappy country will receive a loss no less irreparable than our own. Where will it meet a man so experienced in military affairs, one so renowned for patriotism, conduct, and courage? Who has so great a knowledge of the enemy we have to deal with? Who so well acquainted with their situation and strength? Who so much respected by the soldiery? Who, in short, so able to support the military character of Virginia? Your approved love to your King and country, and your uncommon perseverance in promoting the honor and true interest of the service, convince us that the most cogent reasons only could induce you to quit it; yet we, with the greatest deference, presume to entreat you to suspend those thoughts for another year, and to lead us on to assist in the glorious work of extirpating our enemies, towards which so considerable advances have already been made. In you we place the most implicit confidence. Your presence only will cause a steady firmness and vigor to actuate every breast, despising the greatest dangers, and thinking light of toils and hardships, while led on by the man we know and love. But if we must be so unhappy as to part, if the exigencies of your affairs force you to abandon us, we beg it as our last request, that you will recommend some person most capable to command, whose military knowledge, whose honor, whose conduct, and whose disinterested principles we may depend on. Frankness, sincerity, and a certain openness of soul, are the true characteristics of an officer, and we flatter ourselves that you do not think us capable of saying any thing contrary to the purest dictates of our minds. Fully persuaded of this, we beg leave to assure you, that, as you have hitherto been the actuating soul of our whole corps, we shall at all times pay the most invariable regard to your will and pleasure, and shall be always happy to demonstrate by our actions with how much respect and esteem we are," &c. Washington's marriage took place soon after his resignation (January 6th, 1759), and his civil life now commenced. He had been elected a member of the House of Burgesses, before the close of the campaign, and in the course of the winter he took his seat. Upon this occasion, his inability, from confusion and modesty, to reply to a highly eulogistic address made to him by the Speaker, Mr. Robinson, drew from that gentleman the celebrated compliment, "Sit down, Mr. Washington, your modesty equals your valor, and that surpasses the power of any language that I possess." He continued a member of the House of Burgesses until the commencement of the Revolution, a period of fifteen years. He was not a frequent speaker; but his sound judgment, quick perception, and firmness and sincerity of character, gave him an influence which the habit of much speaking does not give, and which is often denied to eloquence. As the time drew near, when the controversies between the colonies and England began to assume a threatening aspect, he was naturally found with Henry, Randolph, Lee, Wythe, and Mason, and the other patriotic leaders of the colonies. His views concerning the policy of the non-importation agreements were early formed and made known. In 1769, he took charge of the Articles of Association, drawn by Mr. Mason, which were intended to bring about a concert of action between all the colonies, for the purpose of presenting them to the Assembly, of which Mr. Mason was not a member. In 1774, he was chosen a member of the first Virginia Convention, and was by that body elected a delegate to the first Continental Congress, where he was undoubtedly the most conspicuous person present. The second Virginia Convention met in March, 1775, and reflected the former delegates to the second Continental Congress, from which Washington was removed by his appointment as Commander-in-chief. There can be no doubt, therefore, that Washington was chosen Commander-in-chief for his unquestionable merits, and not as a compromise between sectional interests and local jealousies. (The authorities for the statements in this note concerning Washington's history are the biographies by Marshall and Sparks, and the Writings of Washington, edited by the latter.) FOOTNOTES: [24] Peyton Randolph, President of the first and reëlected President of the second Congress, died very suddenly at Philadelphia on the 22d of October, 1775, and was succeeded in that office by John Hancock. Mr. Randolph was one of the most eminent of the Virginia patriots, and an intimate friend of Washington. Richard Henry Lee wrote to Washington, on the day after his death, that "in him American liberty lost a powerful advocate, and human nature a sincere friend." He was formerly Attorney-General of Virginia, and in 1753 went to England as agent of the House of Burgesses, to procure the abolition of a fee, known as the pistole fee, which it had been the custom of the Governors of Virginia to charge for signing land patents, as a perquisite of their office. He succeeded in getting the fee abolished in cases where the quantity of land exceeded one hundred acres. He was commander of a company of mounted volunteers called the Gentlemen Associators, who served in the French war. He was President of the Virginia Convention, as well as a Delegate in Congress, at the time of his death. Sparks's Washington, II. 58, 161; III. 139, 140; XII. 420. [25] In Massachusetts, Pennsylvania, and Maryland, they were made in December; in Connecticut, in November; in New Jersey, in January; in South Carolina, in February; in the Lower Counties on Delaware and in Virginia, in March; in North Carolina, on the 5th of April; and in New York, on the 22d of April. [26] Virginia renewed her delegation for one year from the 11th of August, 1775, and Maryland hers with powers to act until the 25th of March, 1776. These new delegations, as well as that of Georgia, appeared on the 13th of September, 1775. On the 16th of September, a renewed delegation appeared from New Hampshire, without limitation of time; Connecticut sent a new delegation on the 16th of January, 1776, and Massachusetts did the same on the 31st of January, for the year 1776. The persons of the delegates were not often changed. [27] Journals, I. 81, 82. [28] May 15, 1775. Journals, I. 162. [29] Journals, I. 112. [30] Form of enlistment, Journals, I. 118. [31] Ibid. [32] See note at end of the chapter. [33] Secret Journals of Congress, I. 18; Pitkin's History of the United States, I. 334, 335. [34] Journals, I. 122. [35] June 16-July 4, 1775. Journals, I. 112-133. [36] Journals, I. 125, June 23, 1775. Ibid., I. 185, July 29, 1775. [37] Ibid. [38] Journals, I. 186, July 29, 1775. Michael Hillegas and George Clymer, Esquires, were elected Treasurers. [39] Journals, I. 177, 178, July 26, 1775. Dr. Franklin was elected Postmaster-General for one year, and until another should be appointed by a future Congress. [40] Journals, I. 106. [41] Journals, I. 170. [42] Journals, I. 285. [43] Journals, I. 161, 162. [44] Journals, II. 112, 141, 163, 201, 255, 302, 304. [45] Journals, I. 213; II. 5. [46] June 9, 1775. [47] November 3, 1775. [48] December 4, 1775. [49] Journals, I. 115. [50] Journals, I. 231, 235, 279. [51] Annual Register. [52] May 10, 1776. Journals, II. 166, 174. CHAPTER III. 1776-1777. CONTINUANCE OF THE REVOLUTIONARY GOVERNMENT.--DECLARATION OF INDEPENDENCE.--PREPARATIONS FOR A NEW GOVERNMENT.--FORMATION OF THE CONTINENTAL ARMY. On the 7th of June, 1776, after the Congress had in fact assumed and exercised sovereign powers with the assent of the people of America, a resolution was moved by Richard Henry Lee of Virginia, and seconded by John Adams of Massachusetts, "That these United Colonies are, and of right ought to be, free and independent states; and that all political connection between them and the state of Great Britain is and ought to be totally suppressed."[53] This resolution was referred to a committee of the whole, and was debated until the 10th, when it was adopted in committee. On the same day, a committee, consisting of five members,[54] was instructed to prepare a declaration "that these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain is, and ought to be, dissolved." The resolution introduced by Mr. Lee on the 7th was postponed until the 1st of July, to give time for greater unanimity among the members, and to enable the people of the colonies to instruct and influence their delegates. The postponement was immediately followed by proceedings in the colonies, in most of which the delegates in Congress were either instructed or authorized to vote for the resolution of Independence; and on the 2d of July that resolution received the assent in Congress of all the colonies, excepting Pennsylvania and Delaware. The Declaration of Independence was reported by the committee, who had been instructed to prepare it, on the 28th of June, and on the 4th of July it received the vote of every colony, and was published to the world.[55] This celebrated instrument, regarded as a legislative proceeding, was the solemn enactment, by the representatives of all the colonies, of a complete dissolution of their allegiance to the British crown. It severed the political connection between the people of this country and the people of England, and at once erected the different colonies into free and independent states. The body by which this step was taken constituted the actual government of the nation, at the time, and its members had been directly invested with competent legislative power to take it, and had also been specially instructed to do so. The consequences flowing from its adoption were, that the local allegiance of the inhabitants of each colony became transferred and due to the colony itself, or, as it was expressed by the Congress, became due to the laws of the colony, from which they derived protection;[56] that the people of the country became thenceforth the rightful sovereign of the country; that they became united in a national corporate capacity, as one people; that they could thereafter enter into treaties and contract alliances with foreign nations, could levy war and conclude peace, and do all other acts pertaining to the exercise of a national sovereignty; and finally, that, in their national corporate capacity, they became known and designated as the United States of America. This Declaration was the first national state paper in which these words were used as the style and title of the nation. In the enacting part of the instrument, the Congress styled themselves "the representatives of the United States of America in general Congress assembled"; and from that period, the previously "United Colonies" have been known as a political community, both within their own borders and by the other nations of the world, by the title which they then assumed.[57] On the same day on which the committee for preparing the Declaration of Independence was appointed, another committee, consisting of one member from each colony, was directed "to prepare and digest the form of a confederation to be entered into between these colonies." This committee reported a draft of Articles of Confederation, on the 12th of July, which were debated in Congress on several occasions between that day and the 20th of August of the same year, at which time a new draft was reported, and ordered to be printed. The subject was not again resumed, until the 8th of April, 1777; but, between that date and the 15th of the following November, sundry amendments were discussed and adopted, and the whole of the articles, as amended, were printed for the use of the Congress and the State Legislatures. On the 17th of November, a circular letter was reported and adopted, to be addressed to the Legislatures of the thirteen States, recommending to them "to invest the delegates of the State with competent powers, ultimately, in the name and behalf of the State, to subscribe Articles of Confederation and Perpetual Union of the United States, and to attend Congress for that purpose on or before the 10th day of March next."[58] A year and five months had thus elapsed, between the agitation of the subject of a new form of national government, and the adoption and recommendation of a form, by the Congress, for the consideration of the States.[59] During this interval, the affairs of the country were administered by the Revolutionary Congress, which had been instituted, originally, for the purpose of obtaining redress peaceably from the British ministry, but which afterwards became _de facto_ the government of the country, for all the purposes of revolution and independence. In order to appreciate the objects of the Confederation, the obstacles which it had to encounter, and the mode in which those obstacles were finally overcome, it is necessary here to take a brief survey of the national affairs during the period beginning with the commencement of the war and the Declaration of Independence, and extending to the date of the submission of the Articles of Confederation to the State Legislatures. From no point of view can so much instruction be derived, as from the position in which Washington stood, during this period. By following the fortunes and appreciating the exertions of him who had been charged with the great military duty of achieving the liberties of the country, and especially by observing his relations with the government that had undertaken the war, we can best understand the fitness of that government for the great task to which it had been called. The continental government, which commissioned and sent General Washington to take the command of the army which it had adopted, consisted solely of a body of delegates, chosen to represent the people of the several colonies or states, for certain purposes of national defence, safety, redress, and revolution. When the war had actually commenced, and the United Colonies were engaged in waging it, the Congress possessed, theoretically and rightfully, large political powers, of a vague revolutionary nature; but practically, they had little direct civil power, either legislative or executive. They were obliged to rely almost wholly on the legislatures, provincial congresses and committees, or other local bodies of the several colonies or states, to carry out their plans. When Washington arrived at Cambridge and found the army then encamped around Boston in a state requiring it to be entirely remodelled, he came as the general of a government which could do little more for him than recommend him to the Provincial Congress, to the Committee of Safety, and to the prominent citizens of Massachusetts Bay. The people of the United States, at the present day, surrounded by the apparatus of national power, can form some idea of Washington's position, and of that of the government which he served, from the fact that, when he left Philadelphia to take the command of the army, he requested the Massachusetts delegates to recommend to him bodies of men and respectable individuals, to whom he might apply, to get done, through voluntary coöperation, what was absolutely essential to the existence of that army.[60] In truth, the whole of his residence in Massachusetts during the summer of 1775, and the winter of 1775-6, until he saw the British fleet go down the harbor of Boston, was filled with complicated difficulties, which sprang from the nature of the revolutionary government and the defects in its civil machinery, far more than from any and all other causes. These difficulties required the exertion of great intellectual and physical energy, the application of consummate prudence and forecast, and the patience and fortitude which in him were so happily combined with power. They would have broken down many of the greatest generals whom the world has seen; but it is our good fortune to be able to look back upon his efforts to encounter them as among the more prominent and striking manifestations of the strength of Washington's mind and character, and as among the most valuable proofs of what we owe to him. On the one side of him was the body of delegates, sitting at Philadelphia, by whom he had been commissioned, who constituted the government of America, and from whom every direction, order, or requisition, concerning national affairs, necessarily proceeded. On the other side were the Provincial Congresses, and other public bodies of the New England colonies, on whom he and the Congress were obliged to rely for the execution of their plans. He was compelled to become the director of this complicated machinery. There were committees of the Congress, charged with the different branches of the public service; but General Washington was obliged to attend personally to every detail, and to suggest, to urge, and to entreat action upon all the subjects that concerned the army and the campaign. His letters, addressed to the President of Congress, were read in that body, and votes or resolutions were passed to give effect to his requests or recommendations. But this was not enough. Having obtained the proper order or requisition, he was next obliged to see that it was executed by the local bodies or magistrates, with whom he not infrequently was forced to discuss the whole subject anew. He met with great readiness of attention, and every disposition to make things personally convenient and agreeable to him; but he found, as he has recorded, a vital and inherent principle of delay, incompatible with military service, in the necessity he was under to transact business through such numerous and different channels.[61] His applications to the Governor of Connecticut for hunting-shirts for the army;[62] to the Governor of Rhode Island for powder;[63] to the Massachusetts Provincial Congress to apprehend deserters and to furnish supplies;[64] and to the New York Provincial Congress to prevent their citizens from trading with the enemy in Boston,[65]--together with the earnest appeals which he was obliged to make on these and many other subjects, which should never have been permitted to embarrass him,--show how feeble were the powers and how defective was the machinery of the government which he served. But there are two or three topics which it will be necessary to examine more particularly, in order fully to understand the character and working of the revolutionary government. The first of these is the formation of the army. In order to carry on a war of any duration, it is the settled result of all experience, that the soldier should be bound to serve for a period long enough to insure discipline and skill, and should be under the influence of motives which look to substantial pecuniary rewards, as well as those founded on patriotism. According to Washington's experience, this is as true of officers as it is of common soldiers; and undoubtedly no army can be formed, and kept long enough in the field to be relied upon for the accomplishment of great purposes, if these maxims are neglected in its organization. Unfortunately, the Revolutionary Congress, at the very commencement of the war, committed the serious error of enlisting soldiers for short periods. When Washington arrived at Cambridge, the army which the Congress had just adopted as the continental establishment consisted of certain regiments, raised on the spur of the moment by the provinces of Massachusetts, New Hampshire, Rhode Island, and Connecticut; acting under their respective officers; regulated by their own militia laws; and, with the exception of those from Massachusetts, under no legal obligation to obey the general then in command. The terms of service of most of these men would expire in the autumn; and as they had enlisted under their local governments for a special object, and had not been in service long enough to have merged their habits of thinking and feeling, as New England citizens, in the character of soldiers, they denied the power of their own governments or of the Congress to transfer them into another service, or to retain them after their enlistments had expired.[66] The army was therefore to be entirely remodelled; or, to speak more correctly, an army was to be formed, by making enlistments under the Articles of War which had been adopted by the Congress, and by organizing new regiments and brigades under officers holding continental commissions. But the greatest difficulties had to be encountered in this undertaking. The continental Articles of War required a longer term of service than any of these troops had originally engaged for, and the rules and regulations were far more stringent than the discipline to which they had hitherto been subjected. There was, moreover, great reluctance, on the part of both officers and men, to serve in regiments consisting of the inhabitants of different colonies. A Connecticut captain would not serve under a Massachusetts colonel; a Massachusetts colonel was unwilling to command Rhode Island men; and the men were equally indisposed to serve under officers from another colony, or under any officers, in fact, but those of their own choosing.[67] In this state of things, a committee, consisting of Dr. Franklin, Mr. Lynch, and Colonel Harrison, was sent by the Congress to confer with General Washington and with the local governments of the New England colonies, on the most effectual method of continuing, supporting, and regulating a continental army.[68] This committee arrived at Cambridge on the 18th of October, and sat until the 24th.[69] They rendered very important services to the commander-in-chief, in the organization of the army; but in forming this first military establishment of the Union, the strange error was committed by the Congress, of enlisting the men for the term of one year only, if not sooner discharged;--a capital mistake, the consequences of which were severely felt throughout the whole war. There is no reason to suppose that General Washington concurred in the expediency of such short enlistments, then or at any other time; but he was obliged to yield to the pressure of the causes to which the mistake is fairly to be attributed. In fact, we find him, in a short time after the new system had been put into operation, pointing it out as a fatal error, in a letter to the President of Congress.[70] The error may have been owing to the character of the government, to the opinions and prejudices prevailing in Congress, and to the delusive idea, which still lingered in the minds of many of the members, that, although the sword had been drawn, the scabbard was not wholly thrown aside, and that they should be able to coerce the British ministry into a redress of grievances, which might be followed by a restoration of the relations between the colonies and the mother country, upon a constitutional basis. No such idea was entertained by Washington, from the beginning. He entertained no thought of accommodation, after the measures adopted in consequence of the battle of Bunker's Hill. But at the time of which we are treating, the issue had not been made, as Washington would have made it; and, when we consider the state of things before the Declaration of Independence was adopted, and look attentively at the objects for which the Congress had been assembled, and at the nature of their powers, we may perceive how they came to make the mistake of not organizing a military establishment on a more permanent footing. The delegates to the first Congress were, as we have seen, sent with instructions, which were substantially the same in all the colonies. These instructions, in some instances, looked to "a redress of grievances," and in others, to "the recovery and establishment of the just rights and liberties of the colonies"; and the delegates were directed "to deliberate upon wise and proper measures, to be by them recommended to all the colonies," for the attainment of these objects. But with this was coupled the declared object of a "restoration of union and harmony" upon "constitutional principles." We have seen how far this body proceeded towards a revolution. The second, or Revolutionary Congress, was composed of delegates who were originally assembled under similar instructions; but the conflict of arms that had already taken place, between the times of their respective appointments and the date of their meeting, had materially changed the posture of affairs. Powers of a revolutionary nature had been cast upon them, by the force of circumstances; and when they finally resolved to take the field, the character of those powers, as understood and acted upon by themselves, is illustrated by the commission which they issued to their General-in-chief, which embraced in its scope the whole vast object of "the defence of American liberty, and the repelling every hostile invasion thereof," by force of arms, and "by the rules and discipline of war, as herewith given." It is obvious, therefore, that, at the time when the first continental army was to be formed, the powers of the national government were very broad, although vague and uncertain. There seems to have been no reason, upon principle, why they should not have adopted decrees, to be executed by their own immediate agents, and by their own direct force. But a practical difficulty embarrassed and almost annulled this theoretical and rightful power. The government of the Congress rested on no definite, legislative faculty. When they came to a resolution, or vote, it constituted only a voluntary compact, to which the people of each colony pledged themselves, by their delegates, as to a treaty, but which depended for its observance entirely on the patriotism and good faith of the colony itself. No means existed of compelling obedience from a delinquent colony, and the government was not one which could operate directly upon individuals, unless it assumed the full exercise of powers derived from the revolutionary objects at which it aimed. These powers were not assumed and exercised to their full extent, for reasons peculiar to the situation of the country, and to the character, habits, and feelings of the people. The people of the colonies had indeed sent their delegates to a Congress, to consult and determine upon the measures necessary to be adopted, in order to assert and maintain their rights. But they had never been accustomed to any machinery of government, or legislation, other than that existing in their own separate jurisdictions. They had imparted to the Congress no proper legislative authority, and no civil powers, except those of a revolutionary character. This revolutionary government was therefore entirely without civil executive officers, fundamental laws, or control over individuals; and the union of the colonies, so far as a union had taken place, was one from which any colony could withdraw at any time, without violating any legal obligation. In addition to this, the popular feeling on the subject of the grievances existing, and of the measures that ought to be taken for redress, was quite different in the different colonies, before the Declaration of Independence was adopted. The leading patriotic or Whig colonies made common cause with each other, with great spirit and energy, and the more lukewarm followed, but with unequal steps.[71] Virginia had, upon the whole, less to complain of than Massachusetts; but she adopted the whole quarrel of her Northern sister, with the firmness of her Washington and the ardor of her Henry. New York, on the other hand, for a considerable period, and down to the month of January, 1775, stood nearly divided between the Whigs and the Tories, and did not choose its delegates to the second Congress until the 20th of April,--twenty days only before that body assembled.[72] One of the most striking illustrations, both of the character of the revolutionary government and of the state of the country, is presented by the proceedings respecting the Loyalists, or, as they were called, the Tories. This is not the place to consider whether the American Loyalists were right or wrong in adhering to the crown. Ample justice is likely to be done, in American history, to the characters and motives of those among them whose characters and motives were pure. From a sense of duty, or from cupidity, or from some motive, good or bad, they made their election to adhere to the public enemy; and they were, therefore, rightfully classed, according to their personal activity and importance, among the enemies of the country, by those whose business it was to conduct its affairs and to fight its battles. General Washington was, at a very early period, of opinion, that the most decisive steps ought to be taken with these persons; and he seems at first to have acted as if it belonged, as in fact it did properly belong, to the commander of the continental forces to determine when and how they should be arrested. He first had occasion to act upon the subject in November, 1775, when he sent Colonel Palfrey, one of his aids, into New Hampshire, with orders to seize every officer of the royal government, who had given proofs of an unfriendly disposition to the American cause, and when he had secured them, to take the opinion of the Provincial Congress, or Committee of Safety, in what manner to dispose of them in that Province.[73] Early in the month of January, 1776, General Washington was led to suppose that the enemy were about to send from Boston a secret expedition by water, for the purpose of taking possession of the city of New York; and it was believed that a body of Tories on Long Island, where they were numerous, were about rising, to join the enemy's forces on their arrival. While Washington was deliberating whether he should be warranted in sending an expedition to check this movement and to prevent the city from falling into the hands of the enemy, without first applying to Congress for a special authority, he received a letter from Major-General Charles Lee, offering to go into Connecticut, to raise volunteers, and to march to the neighborhood of New York, for the purpose of securing the city and suppressing the anticipated insurrection of the Tories.[74] He was inclined to adopt Lee's suggestion, but doubted whether he had power to disarm the people of an entire district, as a military measure, without the action of the civil authority of the Province. Upon this point, he consulted Mr. John Adams, who was then attending the Provincial Congress of Massachusetts. Mr. Adams gave it, unhesitatingly, as his clear opinion, that the commission of the Commander-in-chief extended to the objects proposed in General Lee's letter; and he reminded General Washington, that it vested in him full power and authority to act as he should think for the good and welfare of the service.[75] Lee was thereupon authorized to raise volunteers and to proceed to the city of New York, which he was instructed to prevent from falling into the hands of the enemy, by putting it into the best posture of defence and by disarming all persons upon Long Island and elsewhere, (and, if necessary, by otherwise securing them,) whose conduct and declarations had rendered them justly suspected of designs unfriendly to the views of the Congress.[76] At the same time, General Washington wrote to the Committee of Safety of New York, informing them of the instructions which he had given to General Lee, and requesting their assistance; but without placing Lee under their authority.[77] * * * * * It happened, that at this time, while Washington was considering the expediency of sending this expedition, the Congress had under consideration the subject of disarming the Tories in Queen's County, Long Island, where the people had refused to elect members to the Provincial Convention.[78] Two battalions of minute-men had been ordered to enter that county, at its opposite sides, on the same day, and to disarm every inhabitant who had voted against choosing members to the Convention.[79] A part of these orders were suddenly countermanded, and in place of the minute-men from Connecticut, three companies were ordered to be detailed for this service from the command of Lord Stirling. This change in the original plan was made on the 10th of January; and when Washington received notice of it from Lee, he seems to have understood it as an abandonment of the whole scheme of the expedition,--a course which he deeply regretted.[80] He thought, that the period had arrived when nothing less than the most decisive measures ought to be pursued; that the enemies of the country were sufficiently numerous on the other side of the Atlantic, and that it was highly important to have as few internal ones as possible. But supposing that Congress had changed their determination, he directed Lee to disband his troops so soon as circumstances would in his judgment admit of it.[81] Lee was at this time at Stamford in Connecticut, with a body of about twelve hundred men, whom he had raised in that colony, preparing to march to New York to execute the different purposes for which he had been detached. On the 22d of January,--the day before the date of General Washington's letter to him directing him to disband his forces,--he had written to the President of Congress, urging in the strongest terms the expediency of seizing and disarming the Tories;[82] and he immediately communicated to Washington the fact of his having done so. Washington wrote again on the 30th, informing Lee that General Clinton had gone from Boston on some expedition with four or five hundred men; that there was reason to believe that this expedition had been sent on the application of Tryon, the royal Governor of New York, who, with a large body of the inhabitants, would probably join it; and that the Tories ought, therefore, to be disarmed at once, and the principal persons among them seized. He also expressed the hope that Congress would empower General Lee to act conformably to both their wishes; but that, if they should order differently, their directions must be obeyed.[83] General Washington was mistaken in supposing that Congress had resolved to abandon the expedition against the Tories of Queen's County. That expedition had actually penetrated the county, under Colonel Heard, who had arrested nineteen of the principal inhabitants and conducted them to Philadelphia. Congress directed them to be sent to New York, and delivered to the order of the Convention of that Colony, until an inquiry could be instituted by the Convention into their conduct, and a report thereon made to Congress.[84] This destination of the prisoners had become necessary, in consequence of the local fears and jealousies excited by the approach of General Lee to the city of New York, at the head of a force designed to prevent it from falling into the possession of the enemy. The inhabitants of the city were not a little alarmed at the idea of its becoming a post to be contended for; and the Committee of Safety wrote to General Lee earnestly deprecating his approach.[85] Lee replied to them, and continued his march, inclosing their letter to Congress. It was received in that body on the 26th, and a committee of three members was immediately appointed to repair to New York, to consult and advise with the Council of Safety of the Colony, and with General Lee, respecting the defence of the city.[86] The Provincial Congress of New York were in session at the time of the arrival of this committee,[87] and, in consequence of the temper existing in that body and in the local committees, the Continental Congress found themselves obliged to recede from the course which they had taken of disarming the Tories of Queen's County by their own action, and to submit the whole subject again to the colonial authorities everywhere, by a mere recommendation to them to disarm all persons, within their respective limits, notoriously disaffected to the American cause.[88] Thus, after having resolved on the performance of a high act of sovereignty, which was entirely within the true scope of their own powers, and eminently necessary, the Congress was obliged to content itself with a recommendation on the subject to the colonial authorities; not only because it felt itself, as a government, far from secure of the popular coöperation in many parts of the country, but because it had not finally severed the political tie which had bound the country to the crown of Great Britain, and because it had no civil machinery of its own, through which its operations could be conducted. Another topic, which illustrates the character of the early revolutionary government, is the entire absence, at the period now under consideration, of a proper national tribunal for the determination of questions of Prize;--a want which gave General Washington great trouble and embarrassment, during his residence at Cambridge and for some time afterwards. As this subject is connected with the origin of the American Navy, a brief account may here be given of the commencement of naval operations by the United Colonies. * * * * * When General Washington arrived at Cambridge, no steps had been taken by the Continental Congress towards the employment of any naval force whatever. In June, 1775, two small schooners had been fitted out by Rhode Island, to protect the waters of that Colony from the depredations of the enemy; and in the same month, the Provincial Congress of Massachusetts resolved to provide six armed vessels; but none of them were ready in the month of October.[89] In the early part of that month, the first movement was made by the Continental Congress towards the employment of any naval force. General Washington was then directed to fit out two armed vessels, with all possible despatch, to sail for the mouth of the St. Lawrence, in order to intercept certain ships from England bound to Quebec with powder and stores. He was to procure these vessels from the government of Massachusetts.[90] The authorities of Massachusetts had then made no such provision; but in the latter part of August, General Washington had, on the broad authority of his commission, proceeded to fit out six armed schooners, to cruise in the waters of Massachusetts Bay, so as to intercept the enemy's supplies coming into the port of Boston. One of them sailed in September, and in the course of a few weeks they were all cruising between Cape Ann and Cape Cod.[91] On the 17th of September, 1775, the town of Falmouth in Massachusetts (now Portland in Maine) was burnt by the enemy. This act stimulated the Continental Congress to order the fitting out of two armed vessels on the 26th of October, and of two others, on the 30th. It also stimulated the Massachusetts Assembly to issue letters of marque and reprisal, and to pass an act establishing a court to try and condemn all captures made from the enemy, by the privateers and armed vessels of that Colony. In the autumn of this year, therefore, there were two classes of armed vessels cruising in the waters of Massachusetts: one consisting of those sailing under the continental authority, and the other consisting of those sailing under the authority of the Massachusetts Assembly. Captures were made by each, and some of those sailing under the continental authority were quite successful. Captain Manly, commanding the Lee, took, in the latter part of November, a valuable prize, with a large cargo of arms, ammunition, and military tools; and several other captures followed before any provision had been made for their condemnation,--a business which was thus thrown entirely upon the hands of General Washington. The court established by the Legislature of Massachusetts, at its session in the autumn of 1775, for the trial and condemnation of all captures from the enemy, was enabled to take cognizance only of captures made by vessels fitted out by the Province, or by citizens of the Province. As the cruisers fitted out at the continental expense did not come under this law, General Washington early in November called the attention of Congress to the necessity of establishing a court for the trial of prizes made by continental authority.[92] On the 25th of November, the Congress passed resolves ordering all trials of prizes to be held in the court of the colony into which they should be brought, with a right of appeal to Congress.[93] But these resolves do not seem to have been, for a considerable period of time, communicated to General Washington; for, during the months of November, December, and January, he supposed it to be necessary for him to attend personally to the adjudication of prizes made by continental vessels,[94] and it was not until the early part of February that the receipt of the resolves of Congress led to a resort to the jurisdiction of the admiralty court of Massachusetts. When, however, this was done, an irreconcilable difference was found to exist between the resolves of Congress and the law of the Colony respecting the proceedings; the trials were stopped for a long time, to enable the General Court of Massachusetts to alter their law, so as to make it conform to the resolves; and in the mean while, many of the captors, weary of the law's delay, applied, without waiting for the decisions, for leave to go away, which General Washington granted.[95] As late as the 25th of April, 1776, there had been no trials of any of the prizes brought into Massachusetts Bay. At that date, General Washington wrote to the President of Congress, from New York, that some of the vessels which he had fitted out were laid up, the crews being dissatisfied because they could not obtain their prize-money; that he had appealed to the Congress on the subject; and that, if a summary way of proceeding were not resolved on, it would be impossible to have the continental vessels manned. At this time Captain Manly and his crew had not received their share of the valuable prize taken by them in the autumn previous.[96] * * * * * Another remarkable defect in the revolutionary government was found in the mode in which it undertook to supply the means of defraying the public expenses. It was a government entirely without revenues of any kind; for, in constituting the Congress, the colonies had not clothed their delegates with power to lay taxes, or to establish imposts. At the time when hostilities were actually commenced, the commerce of the country was almost totally annihilated; so that if the Congress had possessed power to derive a revenue from commerce, little could have been obtained for a long period after the commencement of the war. But the power did not exist; money in any considerable quantity could not be borrowed at home; the expedient of foreign loans had not been suggested; and consequently the only remaining expedient to which the Congress could resort was, like other governments similarly situated, to issue paper money. The mode in which this was undertaken to be done was, in the first instance, to issue two millions of Spanish milled dollars, in the form of bills, of various denominations, from one dollar to eight dollars each, and a few of twenty dollars, designed for circulation as currency. The whole number of bills which made up the sum of $2,000,000 was 403,800.[97] The next emission amounted to $1,000,000, in bills of thirty dollars each, and was ordered on the 25th of July.[98] When the bills of the first emission were prepared, it would seem to have been the practice to have them signed by a committee of the members; but this was found so inconvenient, from the length of time during which it withdrew the members from the other business of Congress, that, when the second emission was ordered, a committee of twenty-eight citizens of Philadelphia was appointed for the purpose, and the bills were ordered to be signed by any two of them.[99] At this time, no continental Treasurers had been appointed.[100] Such a clumsy machinery was poorly adapted to the supply of a currency demanded by the pressing wants of the army and of the other branches of the public service. The signers of the bills were extremely dilatory in their work. In September, 1775, the paymaster and commissary, at Cambridge, had not a single dollar in hand, and they had strained their credit, for the subsistence of the army, to the utmost; the greater part of the troops were in a state not far from mutiny, in consequence of the deduction which had been made from their stated allowance; and there was imminent danger, if the evil were not soon remedied, and greater punctuality observed, that the army would absolutely break up. In November, General Washington deemed it highly desirable to adopt a system of advanced pay, but the unfortunate state of the military chest rendered it impossible. There was not cash sufficient to pay the troops for the months of October and November. Through the months of December and January, the signing of the bills did not keep pace with the demands of the army, notwithstanding General Washington's urgent remonstrances; and in February his wants became so pressing, that he was obliged to borrow twenty-five thousand pounds of the Province of Massachusetts Bay, in order that the recruiting service might not totally cease.[101] These facts show significantly, that, before the Declaration of Independence, scarcely any progress had been made towards the formation of a national government with definite powers and appropriate departments. In matters of judicature, and in measures requiring executive functions and authority, the Congress were obliged to rely almost entirely upon the local institutions and the local civil machinery of the different colonies; while, in all military affairs, the very form of the revolutionary government was unfavorable to vigor, despatch, and consistent method. There were also causes existing in the temper and feelings of many of the members of that government, both before and after the Declaration of Independence, which, at times, prevented the majority from acting with the decision and energy demanded by the state of their affairs. Many excellent and patriotic men in the Congress of 1775-6, while they concurred fully in the necessity for resistance to the measures of the British ministry, and had decided, or were fast deciding, that a separation must take place, still entertained a great jealousy of standing armies. This jealousy began to exhibit itself very soon after the appointment of the Commander-in-chief, and was never wholly without influence in the proceedings of Congress during the entire period of the war. It led to a degree of reliance upon militia, which, in the situation of the colonies, was too often demonstrated to be a weak and fatal policy.[102] * * * * * NOTE TO PAGE 51. ON THE DECLARATION OF INDEPENDENCE. The Declaration of Independence was drawn by Thomas Jefferson; and the circumstances under which he was selected for this honorable and important task have been for more than a quarter of a century somewhat in doubt, and that doubt has been increased by the recent publication of a part of the Works of Mr. John Adams. The evidence on the subject is to be derived chiefly from statements made by both of these eminent persons in their memoirs, and in a letter written by each of them. We have seen, in a former note, that in 1822 Mr. Adams declared, that had it not been for a conversation which occurred in 1775, before the meeting of the Congress of that year, between himself and his Massachusetts colleagues and certain of the Philadelphia "sons of liberty," in which the Massachusetts members were advised to concede precedence to Virginia, from motives of policy, and but for the principles, facts, and motives suggested in that conversation, many things would not have happened which did occur, and among them, that Mr. Jefferson never would have been the author of the Declaration of Independence. In regard to the same speculation, concerning the election of Washington as Commander-in-chief, I have ventured, on Mr. Adams's own authority, to suggest doubts whether that election ought now to be considered to have turned upon motives which Mr. Adams made so prominent in 1822. In regard to the authorship of the Declaration of Independence, I shall only endeavor to state fairly and fully the conflicting evidence, in order that the reader may judge what degree of weight ought to be assigned to the cause, _without_ which Mr. Adams supposed Mr. Jefferson would not have been selected to draft it. Mr. Jefferson, as it appeared when his writings came to be published in 1829, wrote in 1821, when at the age of seventy-seven, a memoir of some of the public transactions in which he had been engaged. At this time, he had in his possession a few notes of the debates which took place in Congress on the subject of Independence, and which he made at the time. These notes he inserted bodily, as they stood, in his memoir, and they are so printed. (Jefferson's Works, I. 10-14.) They are easily distinguishable from the text of the memoir, but they do not appear to throw any especial light upon the fact now in controversy; although, as Mr. Jefferson, in 1823, when writing on this subject, supported his recollection by "written notes, taken at the moment and on the spot," it is proper to allow that those notes may in some way have aided his memory, although we cannot now see in what way they did so. He made this latter reference in a letter which he wrote to Mr. Madison, in reply to the statements in Mr. Adams's letter to Timothy Pickering, under date of August 6, 1822. (Jefferson's Works, IV. 375, 376.) At or near the beginning of the present century, Mr. Adams, then about sixty-six, wrote an autobiography, which has recently been published [1850], and in which he gave an account of the authorship of the Declaration. In 1822, when about eighty-six, Mr. Adams wrote the letter to Mr. Pickering, which called forth Mr. Jefferson's contradiction in his letter to Mr. Madison, under date of August 30, 1823. (Adams's Works, II. 510-515.) Mr. Jefferson, in his memoir written in 1821, states simply that the committee for drawing the Declaration desired him to do it; that he accordingly wrote it, and that, being approved by the committee, he reported it to the Congress on Friday, the 28th of June, when it was read and ordered to lie on the table; and that on Monday, the 1st of July, the Congress, in committee of the whole, proceeded to consider it. "The pusillanimous idea," he continues, "that we had friends in England worth keeping terms with, still haunted the minds of many. For this reason, those passages which conveyed censures on the people of England were struck out, lest they should give them offence. The clause, too, reprobating the enslaving the inhabitants of Africa, was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who, on the contrary, wished to continue it. Our Northern brethren, also, I believe, felt a little tender under those censures; for though their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others. The debates having taken up the greater parts of the 2d, 3d, and 4th days of July, were, on the evening of the last, closed." (Jefferson's Works, I. 14, 15.) In Mr. Adams's autobiography, the following account is given:--"The Committee of Independence were Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert R. Livingston. Mr. Jefferson had been now about a year a member of Congress, but had attended his duty in the house a very small part of the time, and, when there, had never spoken in public. During the whole time I sat with him in Congress, I never heard him utter three sentences together. It will naturally be inquired how it happened that he was appointed on a committee of such importance. There were more reasons than one. Mr. Jefferson had the reputation of a masterly pen; he had been chosen a delegate in Virginia, in consequence of a very handsome public paper which he had written for the House of Burgesses, which had given him the character of a fine writer. Another reason was, that Mr. Richard Henry Lee was not beloved by the most of his colleagues from Virginia, and Mr. Jefferson was set up to rival and supplant him. This could be done only by the pen, for Mr. Jefferson could stand no competition with him or any one else in elocution and public debate.... The committee had several meetings, in which were proposed the articles of which the Declaration was to consist, and minutes made of them. The committee then appointed Mr. Jefferson and me to draw them up in form, and clothe them in a proper dress. The sub-committee met, and considered the minutes, making such observations on them as then occurred, when Mr. Jefferson desired me to take them to my lodgings, and make the draft. This I declined, and gave several reasons for declining: 1. That he was a Virginian, and I a Massachusettensian. 2. That he was a Southern man, and I a Northern one. 3. That I had been so obnoxious for my early and constant zeal in promoting the measure, that any draft of mine would undergo a more severe scrutiny and criticism in Congress than one of his composition. 4. And lastly, and that would be reason enough if there were no other, I had a great opinion of the elegance of his pen, and none at all of my own. I therefore insisted that no hesitation should be made on his part. He accordingly took the minutes, and in a day or two produced to me his draft. Whether I made or suggested any corrections I remember not. The report was made to the committee of five, by them examined, but whether altered or corrected in any thing, I cannot recollect. But, in substance, at least, it was reported to Congress, where, after a severe criticism, and striking out several of the most oratorical paragraphs, it was adopted on the 4th of July, 1776, and published to the world." (Adams's Works, II. 511-515.) The account in Mr. Adams's letter to Mr. Pickering is as follows:--"You inquire why so young a man as Mr. Jefferson was placed at the head of the committee for preparing a Declaration of Independence? I answer, it was the Frankfort advice to place Virginia at the head of every thing. Mr. Richard Henry Lee might be gone to Virginia, to his sick family, for aught I know; but that was not the reason of Mr. Jefferson's appointment. There were three committees appointed at the same time. One for the Declaration of Independence, another for preparing Articles of Confederation, and another for preparing a treaty to be proposed to France. Mr. Lee was chosen for the Committee of Confederation, and it was not thought convenient that the same person should be upon both. Mr. Jefferson came into Congress in June, 1775, and brought with him a reputation for literature, science, and a happy talent of composition. Writings of his were handed about, remarkable for their peculiar felicity of expression. Though a silent member in Congress, he was so prompt, frank, explicit, and decisive upon committees and in conversation,--not even Samuel Adams was more so,--that he soon seized upon my heart; and upon this occasion I gave him my vote, and did all in my power to procure the votes of others. I think he had one more vote than any other, and that placed him at the head of the committee. I had the next highest number, and that placed me second. The committee met, discussed the subject, and then appointed Mr. Jefferson and me to make the draft, I suppose because we were the two first on the list. The sub-committee met. Jefferson proposed to me to make the draft. I said, 'I will not.' 'You should do it.' 'O, no.' 'Why will you not? You ought to do it.' 'I will not.' 'Why?' 'Reasons enough.' 'What can be your reasons?' 'Reason first,--You are a Virginian, and a Virginian ought to appear at the head of this business. Reason second,--I am obnoxious, suspected, and unpopular. You are very much otherwise. Reason third,--You can write ten times better than I can.' 'Well,' said Jefferson, 'if you are decided, I will do as well as I can.' 'Very well. When you have drawn it up, we will have a meeting.' "A meeting we accordingly had, and conned the paper over. I was delighted with its high tone and the flights of oratory with which it abounded, especially that concerning negro slavery, which, though I knew his Southern brethren would never suffer to pass in Congress, I certainly never would oppose. There were other expressions which I would not have inserted, if I had drawn it up, particularly that which called the King tyrant. I thought this too personal; for I never believed George to be a tyrant in disposition and in nature; I always believed him to be deceived by his courtiers on both sides of the Atlantic, and in his official capacity only, cruel. I thought the expression too passionate, and too much like scolding, for so grave and solemn a document; but as Franklin and Sherman were to inspect it afterwards, I thought it would not become me to strike it out. I consented to report it, and do not now remember that I made or suggested a single alteration. "We reported it to the committee of five. It was read, and I do not remember that Franklin or Sherman criticized any thing. We were all in haste. Congress was impatient, and the instrument was reported, as I believe, in Jefferson's handwriting, as he first drew it. Congress cut off about a quarter of it, as I expected they would; but they obliterated some of the best of it, and left all that was exceptionable, if any thing in it was. I have long wondered that the original draft has not been published. I suppose the reason is, the vehement philippic against negro slavery. "As you justly observe, there is not an idea in it but what had been hackneyed in Congress for two years before. The substance of it is contained in the declaration of rights and the violation of those rights, in the Journals of Congress, in 1774. Indeed, the essence of it is contained in a pamphlet, voted and printed by the town of Boston, before the first Congress met, composed by James Otis, as I suppose, in one of his lucid intervals, and pruned and polished by Samuel Adams." Mr. Jefferson, on the contrary, in his letter to Mr. Madison, says:--"These details are quite incorrect. The committee of five met; no such thing as a sub-committee was proposed, but they unanimously pressed on myself alone to undertake the draft. I consented; I drew it; but, before I reported it to the committee, I communicated it _separately_ to Doctor Franklin and Mr. Adams, requesting their correction, because they were the two members of whose judgments and amendments I wished most to have the benefit, before presenting it to the committee; and you have seen the original paper now in my hands, with the corrections of Doctor Franklin and Mr. Adams interlined in their own handwritings. Their alterations were two or three only, and merely verbal. I then wrote a fair copy, reported it to the committee, and from them, unaltered, to Congress. This personal communication and consultation with Mr. Adams he has misremembered into the actings of a sub-committee. Pickering's observations, and Mr. Adams's in addition, 'that it contained no new idea, that it is a commonplace compilation, its sentiments hackneyed in Congress for two years before, and its essence contained in Otis's pamphlet,' may all be true. Of that I am not to be the judge. Richard Henry Lee charged it as copied from Locke's Treatise on Government. Otis's pamphlet I never saw, and whether I had gathered my ideas from reading or reflection I do not know. I know only that I turned to neither book nor pamphlet while writing it. I did not consider it as any part of my charge to invent new ideas altogether, and to offer no sentiment which had ever been expressed before. Had Mr. Adams been so restrained, Congress would have lost the benefit of his bold and impressive advocations of the rights of revolution. For no man's confident and fervid addresses, more than Mr. Adams's, encouraged and supported us through the difficulties surrounding us, which, like the ceaseless action of gravity, weighed on us by night and by day. Yet, on the same ground, we may ask what of these elevated thoughts was new, or can be affirmed never before to have entered the conceptions of man? "Whether, also, the sentiment of Independence, and the reasons for declaring it, which make so great a portion of the instrument, had been hackneyed in Congress for two years before the 4th of July, 1776, or this dictum of Mr. Adams be another slip of memory, let history say. This, however, I will say for Mr. Adams, that he supported the Declaration with zeal and ability, fighting fearlessly for every word of it. As to myself, I thought it a duty to be, on that occasion, a passive auditor of the opinions of others, more impartial judges than I could be of its merits or demerits. During the debate I was sitting by Doctor Franklin, and he observed that I was writhing a little under the acrimonious criticisms on some of its parts; and it was on that occasion, that, by way of comfort, he told me the story of John Thomson, the hatter, and his new sign." (Jefferson's Works, IV. 376.) The substantial point of difference in these two accounts of the same transaction, relates to the action of the committee in designating the person or persons who were to prepare the draft of a Declaration. Mr. Adams states that Mr. Jefferson and himself were appointed a sub-committee to prepare it; Mr. Jefferson states that he alone was directed by the committee to write the Declaration. This question is not important, since Mr. Adams's version does not in the least impair Mr. Jefferson's claim to the authorship of the instrument. The latter, it must be allowed, gracefully parries the criticisms of Mr. Adams, by a noble allusion to the eloquence which sustained his compatriots in the difficulties and embarrassments that surrounded them, and which they did not think of analyzing, for the purpose of tracing the exact originality of its sentiments. It is proper to add, that Mr. Jefferson's account is confirmed by the original manuscript draft of the Declaration, a fac-simile of which was published in 1829, in the fourth volume of his Works, exhibiting the corrections and interlineations made by Dr. Franklin and Mr. Adams in their respective handwritings. These emendations were not important. The reasons assigned by Mr. Adams for the selection of Mr. Jefferson as the writer of the Declaration are so numerous, that it is difficult to determine which of them he intended should be regarded as the principal or decisive one. In the autobiography, he states that there were more reasons than one why Mr. Jefferson was appointed on a committee of such importance. He assigns two reasons: one, Mr. Jefferson's reputation as a writer, and the other, the desire of his Virginia colleagues to have Mr. Jefferson supplant Mr. Richard Henry Lee. In his letter to Mr. Pickering, Mr. Adams gives as the reason why Mr. Jefferson was placed at the head of the committee, that it was "the Frankfort advice to place Virginia at the head of every thing"; but he also adds, that Mr. Jefferson brought with him to Congress "a reputation for literature, science, and a happy talent of composition," and that this reputation had then been sustained by writings "remarkable for their peculiar felicity of expression." As in the case of Washington, therefore, it would seem that there were reasons of eminent fitness and qualification for the duty assigned; and certainly the Declaration of Independence itself fully justifies the selection. Few state papers have ever been written with more skill, or greater adaptation to the purposes in view. Whether its sentiments were purely original with its author, or were gathered from the political philosophy which had become familiar to the American mind, through the great discussions of the time, it must for ever remain an imperishable monument of his power of expression, and his ability to touch the passions, as well as to address the reason, of mankind. It would be inappropriate to apply to its style the canons of modern criticism. Its statements of political truth, taken in the sense in which they were manifestly intended, can never be successfully assailed. With regard to the passage concerning slavery, we may well conceive that both Northern and Southern men might have felt the injustice of the terrible denunciation with which he charged upon _the King_ all the horrors, crimes, and consequences of the African slave-trade, and in which he accused him of exciting the slaves to insurrection, and "to purchase the liberty of which _he_ had deprived them by murdering the people upon whom _he_ had obtruded them." Mr. Jefferson, in drawing up the list of our national accusations against the King, obviously intended to refer to him as the representative of the public policy and acts of the mother country; and it is true that the imperial government was, and must always remain, responsible for the existence of slavery in the colonies. But this was not one of the grievances to be redressed by the Revolution; it did not constitute one of the reasons for aiming at independence; and there was no sufficient ground for the accusation that the government of Great Britain had knowingly sought to excite general insurrections among the slaves. The rejection of this passage from the Declaration shows that the Congress did not consider this charge to be as tenable as all their other complaints certainly were. FOOTNOTES: [53] Richard Henry Lee, the mover of this resolution, was born on the 20th of June, 1732, at Stratford, Westmoreland County, Virginia. His earlier education was completed in England, whence he returned in his nineteenth year. Possessed of a good fortune, he devoted himself to public affairs. At the age of twenty-five, he entered the House of Burgesses, where he became a distinguished advocate of republican doctrines, and a strenuous opponent of the right claimed by Parliament to tax the colonies, of the Stamp Act, and of the other arbitrary measures of the home government, coöperating with Patrick Henry in all his great patriotic efforts. He was the author of the plan adopted by the House of Burgesses in 1773, for the formation of committees of correspondence, to be organized by the colonial legislatures, and out of which grew the plan of the Continental Congress. In 1774, he was elected one of the delegates from Virginia to the Congress, in which body, from his known ability as a political writer and his services in the popular cause, he was placed on the committees to prepare the addresses to the King, to the People of Great Britain, and to the People of the Colonies, the last of which he wrote. In the second Congress, he was selected to move the resolution of Independence; and besides serving on other very important committees, he furnished, as chairman of the committee instructed to prepare them, the commission and instructions to General Washington. As mover of the resolution of Independence, he would, according to the usual practice, have been made chairman of the committee to prepare the Declaration; but on the 10th of June, the day when the subject was postponed, he was obliged to leave Congress, and return home for a short time, on account of the illness of some member of his family. He came back to Congress and remained a member until June, 1777, when he went home on account of ill health. In August, 1778, he was again elected a member, and continued to serve until 1780; but from feeble health was compelled to take a less active part than he had taken in former years. He was out of Congress from 1780 until 1784, when he was elected its President, but retired at the end of the year. He was opposed to the Constitution of the United States, but voted in Congress to submit it to the people. After its adoption, he was elected one of the first Senators under it from Virginia, and in that capacity moved and carried several amendments. In 1792, his continued ill health obliged him to retire from public life. He died June 19, 1794. [54] Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and R. R. Livingston. [55] See note at the end of the chapter. [56] On the 24th of June, 1776, the Congress declared, by resolution, that "all persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owed allegiance to the said laws, and were members of such colony; and that all persons passing through or making a temporary stay in any of the colonies, being entitled to the protection of the laws, during the time of such passage, visitation, or temporary stay, owed, during the same, allegiance thereto." Journals, II. 216. [57] The title of "The United States of America" was formally assumed in the Articles of Confederation, when they came to be adopted. But it was in use, without formal enactment, from the date of the adoption of the Declaration of Independence. On the 9th of September, 1776, it was ordered that in all continental commissions and other instruments, where the words "United Colonies" had been used, the style should be altered to the "United States." Journals, II. 349. [58] Journals, II. 263, 320; III. 123, 502, 513. [59] From June 11, 1776, to November 17, 1777. [60] Sparks's Washington, III. 20, note. [61] Works, III. 20. [62] Ibid. 46. [63] Ibid. 47. [64] Ibid. 55. [65] Ibid. 56. [66] Letters of General Washington to the President of Congress, September 21, 1775 (Works, III. 98); October 30, 1775 (Ibid. 137); November 8, 1775 (Ibid. 146). [67] Letters of General Washington to Joseph Reed, November 8, 1775 (Works, III. 150); November 28, 1775 (Ibid. 177); and to the President of Congress, December 4, 1775 (Ibid. 184); to Governor Cooke of Connecticut, December 5, 1775 (Ibid. 188). [68] Journals of Congress, II. 208, September 29, 1775. [69] Writings of Washington, III. 123, note. [70] February 9, 1776 (Works, III. 278). [71] Mr. Jefferson once said to my kinsman, Mr. George Ticknor, that when they had any doubtful and difficult measure to carry in this Congress, they counted the four New England colonies, and Virginia, as _sure_; and then they looked round to see where they could get two more, to make the needful majority. [72] The General Assembly of New York met on the 10th of January, 1775, and by a small majority refused to approve of the non-importation association formed by the first Congress, and also declined to appoint delegates to the second Congress, which was to assemble in May. They adopted, however, a list of grievances, which was substantially the same with that which had been put forth by the first Congress. Towards the close of the session, in the absence of some of the patriotic members, petitions to the King and to Parliament were adopted, which differed somewhat from the principles contained in their list of grievances, and in which they disapproved "of the violent measures that had been pursued in some of the colonies." But the people of New York generally conformed to the non-importation agreement; and on the 20th of April they met in convention and appointed delegates to the second Congress, "to concert and determine upon such matters as shall be judged most advisable for the preservation and reëstablishment of American rights and privileges." Pitkin's History of the United States, I. 324. [73] "I do not mean," the orders continued, "that they should be kept in close confinement. If either of these bodies should incline to send them to any interior towns, upon their parole not to leave them until they are released, it will meet with my concurrence. For the present, I shall avoid giving you the like order in respect to the Tories in Portsmouth; but the day is not far off, when they will meet with this, or a worse fate, if there is not a considerable reformation in their conduct." Writings of Washington, III. 158, 159. [74] Writings of Washington, III. 230, note. [75] Writings of Washington, III. 230, note. See also Marshall's Life of Washington, II. 285-287. [76] Writings of Washington, III. 230. [77] Ibid., note. [78] Journals of Congress, II. 7-9. January 3, 1776. Congress had, on the 2d of January, passed resolves, recommending to the different assemblies, conventions, and committees or councils of safety, to restrain the Tories, and had declared that they ought to be disarmed, and the more dangerous of them kept in custody. For this purpose, the aid of the continental troops stationed in or near the respective colonies was tendered to the local authorities. Journals, II. 4, 5. [79] The resolves of the Congress on this subject amounted to an outlawry of the persons against whom they were directed. They were introduced by a preamble, reciting the disaffection of a majority of the inhabitants of Queen's County, evinced by their refusal to elect deputies to the convention of the colony, by their public declaration of a design to remain inactive spectators of the contest, and their general want of public spirit; and declaring, that "those who refuse to defend their country should be excluded from its protection, and prevented from doing it injury." The first resolve then proceeded to declare that all the inhabitants of Queen's County named in a list of delinquents published by the Convention of New York be put out of the protection of the United Colonies, that all trade and intercourse with them cease, and that no inhabitant of that county be permitted to travel or abide in any part of the United Colonies, out of that county, without a certificate from the Convention or Committee of Safety of New York, setting forth that such inhabitant is a friend to the American cause, and not of the number of those who voted against sending deputies to the Convention; and that any inhabitant found out of the county, without such certificate, be apprehended and imprisoned three months. The second resolve declared that any attorney or lawyer who should commence, prosecute, or defend any action at law, for any inhabitant of Queen's County who voted against sending deputies to the Convention, ought to be treated as an enemy to the American cause. The fourth resolve directed that Colonel Nathaniel Heard, of Woodbridge, N. J., should march, with five or six hundred minute-men, to the western part of Queen's County, and that Colonel Waterbury, of Stamford, Connecticut, with the same number of minute-men, march to the eastern side; that they confer together and endeavor to enter the county on the same day, and that they proceed to disarm every person in the county who voted against sending deputies to the Convention, and cause them to deliver up their arms and ammunition on oath, and confine in safe custody, until further orders, all those who should refuse compliance. These resolves were passed on the 3d of January, 1776, and were reported by a committee on the state of New York. On the 10th of January, on account of "the great distance from Colonel Heard to Colonel Waterbury, and the difficulty of coöperating with each other in their expedition into Queen's County," Congress directed Lord Stirling to furnish Colonel Heard with three companies from his command, who were to join Colonel Heard with his minute-men, and proceed immediately on the expedition; and also directed Heard to inform Waterbury that his services would not be required. Journals, II. 21. [80] He received this impression from General Lee, who wrote on the 16th of January and informed him that Colonel Waterbury had "received orders to disband his regiment, and the Tories are to remain unmolested till they are joined by the King's assassins." Sparks's Life of Gouverneur Morris, I. 75. [81] Letter to General Lee, January 23, 1776. Writings of Washington, III. 255. [82] Marshall's Life of Washington, II., Appendix, xvii. [83] Letter to General Lee, January 31, 1776. Writings of Washington, III. 275. [84] February 6, 1776. Journals, II. 51. [85] Sparks's Life of Gouverneur Morris, I. 75, 76. They wished to "save appearances with the [enemy's] ships of war, till at least the month of March." [86] January 26, 1776. Journals, II. 39. [87] January 30. [88] March 14, 1776. Journals, II. 91. [89] Letter of General Washington to the President of Congress. [90] Resolve passed October 5, 1775. Journals of Congress, II. 197. [91] These vessels were fitted out from the ports of Salem, Beverly, Marblehead, and Plymouth. They were officered and manned chiefly by sea-captains and sailors who happened to be at that time in the army. They sailed under instructions from General Washington, to take and seize all vessels in the ministerial service, bound into or out of Boston, having soldiers, arms and ammunition, or provisions on board, and to send them into the nearest port, under a careful prize-master, to wait his further directions. The first person commissioned in this way by the Commander-in-chief was Captain Nicholas Broughton of Marblehead, who sailed in the schooner Hannah, fitted out at Beverly; and in his instructions he was described as "a captain in the army of the United Colonies of North America," and was directed to take the command of "a detachment of said army, and proceed on board the schooner Hannah, lately fitted out, &c. at the continental expense." Another of these vessels, called the Lee, was commanded by Captain John Manly. The names of three others of them were the Harrison, the Washington, and the Lynch. The name of the sixth vessel is not known, but the names of the four other captains were Selman, Martindale, Coit, and Adams. (Writings of Washington, III. 516.) When Washington received directions from the President of Congress to send two vessels to the mouth of the St. Lawrence, he wrote, on the 12th of October, that one of these vessels was then out, and that two of them would be despatched as directed, immediately. (Ibid., III. 124.) In the course of a few weeks, they were all out. [92] Letter to the President of Congress, November 11, 1775. Writings of Washington, III. 154. [93] Journals, I. 260. [94] On the 4th of December, he repeated his former recommendation to the President of Congress. (Writings of Washington, III. 184.) On the 26th of December, he wrote to Richard Henry Lee, in Congress, begging him to use his influence in having a court of admiralty or some power appointed to hear and determine all matters relative to captures; saying, "You cannot conceive how I am plagued on this head, and how impossible it is for me to hear and determine upon matters of this sort, when the facts, perhaps, are only to be ascertained at ports forty, fifty, or more miles distant, without bringing the parties here [Cambridge] at great trouble and expense. At any rate, my time will not allow me to be a competent judge of this business." Ibid., III. 217. [95] Letter to the President of Congress, February 9, 1776. Ibid., III. 282. Letter to Joseph Reed, February 10, 1776. Ibid., III. 284. [96] Ibid., III. 370. [97] This was the emission ordered on the 23d of June, 1775. There were _forty-nine thousand_ bills of each denomination from one dollar to eight dollars, inclusive, and _eleven thousand eight hundred_ bills of the denomination of twenty dollars. The form of the bills was as follows (Journals, I. 126):-- CONTINENTAL CURRENCY. No. ________________ Dollars. This Bill entitles the Bearer to receive ________________ Spanish milled Dollars, or the value thereof in Gold or Silver, according to the Resolutions of the Congress, held at Philadelphia on the 10th day of May, A. D. 1775. [98] Journals, I. 177. [99] Journals, I. 126, 177. The signers of the bills were allowed a commission of one dollar and one third of a dollar on each thousand of the bills signed by them. Ibid. [100] Ante, p. 35. [101] Writings of Washington, III. 104, 167, 173, 178, 283. [102] Writings of Washington, III. 278; IV. 115; V. 328. Mr. Sparks has preserved an anecdote, which shows the perpetuation of this feeling about standing armies, and evinces also that Washington possessed more humor than has been generally attributed to him. In the Convention for forming the Constitution of the United States, some member proposed to insert a clause in the Constitution, limiting the army of the United States to _five thousand men_. General Washington, who was in the chair, observed that he should not object to such a clause, if it were so amended as to provide that no enemy should ever presume to invade the United States with more than _three thousand_. CHAPTER IV. JULY, 1776--NOVEMBER, 1777. CONSEQUENCES OF THE DECLARATION OF INDEPENDENCE.--REORGANIZATION OF THE CONTINENTAL ARMY.--FLIGHT OF THE CONGRESS FROM PHILADELPHIA.--PLAN OF THE CONFEDERATION PROPOSED. When the Declaration of Independence at length came, it did not in any way change the form of the revolutionary government. It created no institution, and erected no civil machinery. Its political effect has already been described. Its moral effect, both upon the members of the Congress and upon the country, was very great, inasmuch as it put an end alike to the hope and the possibility of a settlement of the controversy upon the principles of the English Constitution, for it made the colonies free, sovereign, and independent states. Men who had voted for such a measure, and who had put their signatures to an instrument which the British Parliament or the Court of King's Bench could have had no difficulty in punishing as treasonable, could no longer continue to feed themselves on "the dainty food of reconciliation."[103] Thenceforward, there was no retreat. The colonies might be conquered, overrun, and enslaved; but this, or the full and final establishment of their own sovereignty, were the sole alternatives. The consequence was, that the Declaration was followed by a greater alacrity on the part of the whole body of the Congress to adopt vigorous and decisive measures, than had before prevailed among them. But there was one feeling which the Declaration did not dispel, and another to which it immediately gave rise, both of which were unfavorable to concentrated, vigorous, and effective action on the part of the revolutionary government. The Declaration of Independence did not dissipate the unreasonable and ill-timed jealousy of standing armies, which gave way, at last, only when the country was in such imminent peril that Washington felt it to be his duty to ask for extraordinary powers, to be conferred upon himself. It was followed, too, as an immediate consequence, by that jealousy with regard to State rights, and that adhesion to State interests, which have existed in our system from that day to the present, and are not entirely separable from it. As the Declaration made the colonies sovereign and independent, and was followed by the formation of State governments, before the creation of any well-defined national system, State sovereignty became at once an ever-present cause of embarrassment to the Congress, in whose proceedings entire delegations sometimes made the interests of the country bend to the interests of their own State, to a mischievous extent. To explain these observations, we must recur again to the history of the army, and to the efforts of Washington to have the military establishment put into a safe and efficient condition. * * * * * After the evacuation of Boston by the British forces, General Washington proceeded, at once, with the continental army to the city of New York, where he arrived on the 13th of April, 1776. The loss of the battle of Long Island on the 27th of August, and the extreme improbability of his being able to hold the city against the superior forces by which it had been invested through the entire summer, made it necessary for him to appeal once more to the Congress for the organization of a permanent army, capable of offering effectual resistance to the enemy. The establishment formed at Cambridge in the autumn previous was to continue for one year only; it was about to be dissolved; and in the month of September General Washington was compelled to abandon the city of New York to the enemy. Before he withdrew from it, he addressed a letter to the President of Congress, on the 2d of September, in which he told that body explicitly that the liberties of the country must of necessity be greatly hazarded, if not entirely lost, should their defence be left to any but a permanent standing army; and that, with the army then under his command, it was impossible to defend and retain the city.[104] On the 20th of the same month, he again wrote, expressing the opinion that it would be entirely impracticable to raise a proper army, without the allowance of a large and extraordinary bounty.[105] At length, when he had retreated to the Heights of Haerlem, and found himself surrounded by a body of troops impatient of restraint, because soon to be entitled to their discharge, and turbulent and licentious, because they had never felt the proper inducements which create good conduct in the soldier, he made one more appeal to the patriotism and good sense of the Congress. Few documents ever proceeded from his pen more wise, or evincing greater knowledge of mankind, or a more profound apprehension of the great subject before him, than the letter which he then wrote concerning the reorganization of the army.[106] Before this letter was written, however, urged by his repeated requests and admonished by defeat, the Congress had adopted a plan, reported by the Board of War, for the organization of a new army, to serve during the war. A long debate preceded its adoption, but the resolves were at length passed on the 16th of September, 1776.[107] They authorized the enlistment of a body of troops, to be divided into eighty-eight battalions, and to be enlisted as soon as possible. These battalions were to be raised by the States; a certain number being assigned to each State as its quota. The highest quota, which was 15, was assigned to the States of Virginia and Massachusetts, respectively. Pennsylvania had 12; North Carolina, 9; Maryland and Connecticut, 8 each; South Carolina, 6; New York and New Jersey, 4 each; New Hampshire, 3; Rhode Island, 2; and Delaware and Georgia, 1 each. The inducements to enlist were a bounty of twenty dollars and one hundred acres of land to each non-commissioned officer or soldier; and to the commissioned officers, the same bounty in money, with larger portions of land.[108] The States were to provide arms and clothing for their respective quotas, and the expense of clothing was to be deducted from the pay.[109] Although the officers were to be commissioned by the Continental Congress, each State was to appoint the officers of its own battalions, from the colonel to those of the lowest grade, inclusive. A circular letter was addressed by Congress to each State, urging its immediate attention to the raising of these troops; and a committee of three members of the Congress was sent to the head-quarters of General Washington, to confer with him on the subject.[110] Two serious defects in this plan struck the Commander-in-chief, as soon as it was laid before him; but the resolves had been passed, and passed with difficulty, before he had an opportunity specifically to point out the mistakes. In the first place, by giving the appointment of the officers to the States, any central system of promoting or placing the officers then serving on the continental establishment according to their characters and deserts was rendered impossible. The resolutions of Congress did not even recommend these officers to the consideration of their respective States. They were left to solicit their appointments at a distance, or to go home and make personal application. Those who chose to do the latter were more likely to get good places than those who remained at their posts; but they were also less likely to be deserving of important commissions than those who stayed with the army. To expect that a proper attention would be paid to the claims of men of real merit, under such a system,--whether they had or had not been in service before,--or that the army when brought together would be found to be officered on a uniform principle, exhibiting an adaptation of character to station, was, in Washington's view, to expect that local authorities would not be influenced by local attachments, and that merit would make its way, in silence and absence, against personal importunity and bold presumption. But Washington saw no remedy for these evils, except by opening a direct communication with the States, through which he might exert some influence over their appointments. He immediately suggested to the Congress, that each State should send a commission to the army, with authority to appoint all the officers of the new regiments. Congress passed a resolve recommending this step to the States, and advising that the Commander-in-chief should be consulted in making the appointments; that those officers should be promoted who had distinguished themselves for bravery and attention to their duties; that no officer should be appointed who had left his station without leave; and that all the officers to be appointed should be men of honor and known abilities, without particular regard to their having been in service before.[111] This was but a partial remedy for the defects of the system. Several of the States sent such a commission to act with the Commander-in-chief; but many of them were tardy in making their appointments, and finally the Congress authorized General Washington to fill the vacancies. Another and a dangerous defect in this plan was, that the continental pay and bounty on enlistment were fixed so low, that some of the States, in order to fill up their quotas, deemed it expedient to offer a further pay and bounty to their own men. This was done immediately by the States of Connecticut and Massachusetts. The consequence was likely to be, that, if the quotas of some States were raised before the fact became known that other States had increased the pay and the bounty, some regiments would, when the army came together, be on higher pay than others, and jealousy, impatience, and mutiny must inevitably follow. Knowing that a different pay could not exist in the same army without these consequences, General Washington remonstrated with the Governor of Connecticut, arrested the proceedings of the commissioners of that State and of Massachusetts, and prevented them from publishing their terms, until the sense of the Congress could be obtained.[112] That body, on receiving from him another strong representation on the subject, passed a resolve augmenting the pay. * * * * * Still, the system, notwithstanding these efforts to amend it, worked ill. The appointment of the officers by the States was incapable of being well managed; the pay and bounty, even after they were increased, were insufficient; and the whole scheme of raising a permanent army was entered upon at too late a period to be effectually accomplished. As late as the middle of November, so little had been done, that the whole force on one side of the Hudson, opposed to Howe's whole army, did not exceed two thousand men of the established regiments; while, on the other side, there was a force not much larger to secure the passes into the Highlands.[113] "I am wearied almost to death," said the Commander-in-chief, in a private letter, "with the retrograde motion of things, and I solemnly protest that a pecuniary reward of twenty thousand pounds a year would not induce me to undergo what I do; and after all, perhaps, to lose my character, as it is impossible, under such a variety of distressing circumstances, to conduct matters agreeably to public expectation, or even to the expectations of those who employ me, as they will not make proper allowances for the difficulties their own errors have occasioned."[114] There are few pages in our history so painful as those on which are recorded the complaints extorted from Washington, at this period, by the trials of his situation. That he, an accomplished soldier, who had retired with honor from the late war with France to his serene Mount Vernon; who had left it again, to stake life, and all that makes life valuable, on the new issue of his country's independence; who asked no recompense and sought no object but her welfare, should have been compelled to pass into the dark valley of the retreat through New Jersey, with all its perplexities, dangers, and discouragements,--its cruel exertions and its humiliating reverses,--without a powerful and energetic government to lean upon, and with scarcely more than Divine assistance to which to turn, presents, indeed, to our separate contemplation, a disheartening and discreditable fact. But no trials are appointed to nations, or to men, without their fruits. The perplexities and difficulties which surrounded Washington in the early part of the Revolution contributed, undoubtedly, to give him that profound civil wisdom, that knowledge of our civil wants, and that influence over the moral sense of the country, which were afterwards so beneficently felt in the establishment of the Constitution. The very weakness of the government which he served became in this manner his and our strength. Without the trials to which it subjected him, it may well be doubted whether we should now possess that tower of strength,--that security against distracted counsels and clashing interests,--which exist for us in the character and services of that extraordinary man. It is not necessary to sketch the scene or to follow the route of General Washington's retreat through New Jersey, except as they illustrate the subject of this work,--the constitutional history of the country. Its remarkable military story is well known. On the 23d of November, four days after the date of the letter to his brother above quoted, he was at Newark, with a body of troops whose departure was near at hand, and for supplying whose places no provision had been made. The enemy were pressing on his rear, and in order to impress upon Congress the danger of his situation, he sent General Mifflin to lay an exact account of it before them.[115] On the 28th, he marched out of Newark in the morning, and Lord Cornwallis entered it on the afternoon of the same day. On the 30th, he was at Brunswick, endeavoring, but with little success, to raise the militia;--the terms of service of the Jersey and Maryland brigades expiring on that day. On the 1st of December, his army numbered only four thousand men, and the enemy were pushing forward with the greatest energy.[116] On the 5th, he resolved to march back to Princeton; but neither militia nor regulars had come in, and it was too late to prevent an evil, which he had both foreseen and foretold.[117] On the 8th, he crossed the Delaware.[118] On the 12th, he saw his little handful of men still further decrease, and now, without succors from the government, or spirited exertions on the part of the people, the loss of Philadelphia--"an event," said he, "which will wound the heart of every virtuous American"--rose as a spectre in his path.[119] On the 16th, as he moved on, gathering all the great energies of his character to parry this deep disgrace, concentrating every force that remained to him towards the defence of the city, and animating and directing public bodies, in a tone of authority and command, he once more urged the Congress to discard all reliance upon the militia, to augment the number of the regular troops, and to strain every nerve to recruit them.[120] Finally,--being still in doubt whether Howe did not intend an attack on Philadelphia, before going into winter quarters,--with less than three thousand men fit for duty, to oppose a well-appointed army of ten or twelve thousand, and surrounded by a population rapidly submitting to the enemy,--he felt that the time had come, when to his single hands must be given all the military authority and power which the Continental Union of America held in trust for the liberties of the country. On the 20th of December, therefore, he wrote to the President of Congress a memorable letter, asking for extraordinary powers, but displaying at the same time all the modesty and high principle of his character.[121] To this appeal Congress at once responded, in a manner suited to the exigency. On the 27th of December, 1776, they passed a resolution, vesting in General Washington ample and complete power to raise and collect together, in the most speedy and effectual manner from all or any of the United States, sixteen battalions of infantry, in addition to those already voted; to appoint the officers of these battalions; to raise, officer, and equip three regiments of artillery and a corps of engineers, and to establish their pay; to apply to any of the States for such aid of their militia as he might judge necessary; to form such magazines of provisions, and in such places, as he should think proper; to displace and appoint all officers under the rank of brigadier-general; to fill up all vacancies in every other department of the American army; to take, wherever he might be, whatever he might want for the use of the army, if the inhabitants would not sell it, allowing a reasonable price for the same; to arrest and confine persons who should refuse to receive the continental currency, or were otherwise disaffected to the American cause; and to return to the States of which such persons were citizens their names and the nature of their offences, together with the witnesses to prove them. These powers were vested in the Commander-in-chief for the space of six months from the date of the resolve, unless sooner revoked by the Congress.[122] * * * * * The powers thus conferred upon General Washington were in reality those of a military dictatorship; and in conferring them, the Congress acted upon the maxim that the public safety is the supreme law. They acted, too, as if they were the proper judges of the exigency, and as if the powers they granted were then rightfully in their hands. But it is a singular proof of the unsettled and anomalous condition of the political system of the country, and of the want of practical authority in the continental government, that, in three days after the adoption of the resolves conferring these powers, the Congress felt it necessary to address a letter to the Governors of the States, apologizing for this step. Nor was their letter a mere apology. It implied a doubt whether the continental government possessed a proper authority to take the steps which the crisis demanded, and whether the execution of all measures did not really belong to the States, the Congress having only a recommendatory power. "Ever attentive," their letter declared, "to the security of civil liberty, Congress would not have consented to the vesting of such powers in the military department as those which the inclosed resolves convey to the continental Commander-in-chief, if the situation of public affairs did not require, at this crisis, a decision and vigor which distance and numbers deny to assemblies far removed from each other and from the seat of war." The letter closed, by requesting the States to use their utmost exertions to further such levies as the general might direct, in consequence of the new powers given him, and to make up and complete their quotas as formerly settled.[123] Strictly examined, therefore, the position taken by the Congress was, that a crisis existed demanding the utmost decision and vigor; that the measures necessary to meet it, such as the raising of troops and the compulsory levying of supplies, belonged to the States; but that, the State governments being removed from each other and from the seat of war, the Congress confers upon the continental general power to do things which in reality it belongs to the States to do. In this there was a great inaccuracy, according to all our present ideas of constitutional power. But still the action of the Congress expresses and exhibits their real situation. It contains a contradiction between the true theory of their revolutionary powers and the powers which they could in fact practically exercise. Upon principle, it was just as competent to the Congress to take the steps required by the exigency, as it was to adjudge them to the States; and it was just as competent to the Congress to do any thing directly, as to confer a power to do it on their general. But the jealousies of the States, the habits of the country, and the practical working of the existing institutions, had never permitted the full exercise of the revolutionary powers which properly resided in the hands of the Congress. The true theory of their situation was limited by practical impossibilities; and an escape from contradictions became impossible. It was perceived that the States would neither pass laws or resolves for the summary raising of forces and levying of supplies, nor allow this to be done by committees or commissioners of Congress; but it was believed that they would acquiesce in its being done by General Washington, out of respect for his character, for his abilities and his motives, and from conviction that he alone could save the country. The expectations of the Congress were not disappointed. It was felt throughout the country, that such powers could be lodged in the hands of Washington without danger. The States in general acquiesced in the necessity and propriety of this measure, and there was little disposition to encroach upon or to complain of the authority conferred. To this acquiescence, however, there were exceptions.[124] * * * * * The period which now followed was a part of the interval during which the Articles of Confederation were pending in Congress. We have seen that the plan of a confederation was reported to that body in July, 1776, and finally adopted for recommendation to the States in November, 1777. But soon after the extraordinary powers had been conferred upon General Washington, the attendance of the members began to diminish, and several of the most eminent and able men, who had hitherto served, retired from Congress. In January, 1777, there were no delegations present from the States of Delaware and New York;[125] and in February, the absence of many distinguished men, whose counsels had been of vast importance, made a striking deficiency. The formation of the State governments, and the local affairs of the States, absorbed for a time, with a few important exceptions, the best civil talent in the country.[126] While the personal efficiency and wisdom of the Congress thus sensibly declined, no change took place in the nature of their powers, or in their relations to the States, that would impart greater vigor to their proceedings. The delegations of many of the States were renewed in the winter of 1776-7; but there was a great diversity, and in some cases a great vagueness, in their instructions.[127] In such a state of things,--with no uniform rule prescribing the powers of the Congress, and with some uncertainty in that body itself with regard to its authority to confer upon the Commander-in-chief the powers with which he was now invested,--however general might be the readiness of the country to acquiesce in their necessity, it is not surprising that State jealousy was sometimes aroused, or that it should have been unreasonable in some of its manifestations. A striking instance of this jealousy occurred upon the occasion of a proclamation issued by General Washington at Morristown, on the 25th of January, 1777. Sir William Howe had published a proclamation in New Jersey, offering protection to such of the inhabitants as would take an oath of allegiance to the King. Many of the substantial farmers of the country had availed themselves of this offer, and had received protections from the British general. The English and Hessian troops, however, made no distinction between friends and foes, but frequently committed great outrages both upon person and property. The resentment of the population would have restored them to the patriot side; but many who had taken the oath of allegiance felt, or affected, in consequence, scruples of conscience. General Washington therefore issued a counter-proclamation, commanding all persons who had received the enemy's protection to repair to head-quarters, or to some general officer of the army, and to surrender their protections and take an oath of allegiance to the United States;--allowing thirty days for those who preferred to remain under the protection of Great Britain to withdraw within the enemy's lines. This was considered in some quarters as an undue exercise of power. The idea of an oath of allegiance to the United States, before the Confederation was formed, was regarded by many as an absurdity. Allegiance, it was said, was due exclusively to the State of which a man was an inhabitant; the States alone were sovereign; and it was for each State, not for the United States, which possessed no sovereignty, to exact this obligation. The Legislature of New Jersey were disposed to treat General Washington's proclamation as an encroachment on their prerogatives: and one of the delegates of that State in Congress denounced it as improper.[128] This feeling was shared by other members; but it is not to be doubted, that the proceeding was a legitimate exercise of the authority vested in the Commander-in-chief. He had been expressly empowered to arrest and confine persons disaffected to the American cause; and the requiring them to attend at his head-quarters was clearly within the scope of this authority. Moreover, although no confederation or political union of the States had been formed under a written compact, yet the United States were waging war, as a government regularly constituted by its representatives in a congress, for the very purpose of carrying on such war. They had an army in the field, whose officers held continental commissions, and were paid by a continental currency. They were exercising certain of the attributes of sovereignty as a belligerent power; and in that capacity they had a complete right to exact such an obligation not to aid the enemy, as would separate their friends from their foes. It was a military measure; and the tenor of the proclamation shows that General Washington exacted the oath in that relation. To pause at such a moment, and to consider nicely how much sovereignty resided in each of the States, and how much or how little belonged to the United States, was certainly a great refinement. But it marks the temper of the times, and the extreme jealousy with which all continental power and authority were watched at that period.[129] We have seen that the powers conferred upon General Washington authorized him to raise, in the most speedy and effectual manner, sixteen battalions of infantry, in addition to those before voted by Congress, three regiments of artillery, and a corps of engineers; and also to apply to any of the States for the aid of their militia when wanted.[130] At the period when he addressed himself to this great undertaking of forming a new army, for the third time, the existing force which he had with him in and around New Jersey was about to be dissolved. The additional regiments of the regular line were to be raised by the States, and upon them alone could he depend for the supply of a new army, with which to commence the campaign in the spring of 1777. He had labored, he said, ever since he had been in the service, to discourage all kinds of local attachments and distinctions of country, denominating the whole by the greater name of AMERICAN; but he had found it impossible to overcome prejudices. Two causes especially embarrassed his efforts in the formation of the new army; and both of them show how powerful were the centrifugal forces of our system at that period, and how little hold that great central name had taken upon the people of the different States. One of these causes was the persistence of some of the States in giving extra bounties to encourage enlistments into their quotas of the original eighty-eight battalions not yet raised. The bounty allowed by Congress was twenty dollars to every soldier enlisting into the new establishment for three years or during the war. The additional bounty offered by Massachusetts was sixty-six dollars and two thirds. There was thus an inducement of eighty-six dollars and two thirds offered to the men then in the service of the United States, not to reënlist in their old regiments, as fast as their time of service expired, but to go to Massachusetts and enlist in the fresh quotas which were forming in that State, and which were to be afterwards mustered into the continental service. The same inconsiderate and unpatriotic policy was pursued in all the Eastern States, and before the spring opened, the consequences began to be felt in the state of the new continental battalions which General Washington was endeavoring to procure from some of the Middle States, and in which he would not sanction the allowance of an extra bounty, regarding it as an indirect breach of the union, and of the agreement entered into by the delegates of the States in Congress to give a bounty of twenty dollars only for service in the continental army.[131] The month of April arrived, and he had not received a man of the new levies, except a few hundreds from Jersey, Pennsylvania, and Virginia, while the few old regiments which remained, after the dissolution of the army in January, were reduced to a handful of men, the enemy being in great force, and making every preparation to seize upon Philadelphia. Nor did the allowance of these irregular bounties help the States, in raising the old levies, as had been anticipated. They rather caused the soldiers to set a high price upon themselves, and to hold back from enlisting; while the second cause, to which I have alluded, as embarrassing the Commander-in-chief, was a great hinderance to his efforts to plan and carry out a campaign, having for its object the general benefit of the whole Union. This cause was the inability of many local authorities to comprehend the necessity of such a campaign. General Washington was, at this period, harassed by numerous applications to allow the troops, which had been raised in the States for the service of the continent, to remain for the defence of particular neighborhoods against incursions of the enemy. Nothing, he said on one of these occasions, could exceed the pleasure which he should feel, if he were able to protect every town and every individual on the continent. But as this was a pleasure which he never should realize, and as the continental forces were wanted to meet and counteract the main designs of the enemy on the principal theatre of the war, he could not consent to divide them and detach them to every point where the enemy might possibly attempt an impression; "for that," he added, "would be in the end to destroy ourselves and subjugate our country."[132] From the operation of these and other causes connected with the political system of the country, the army with which Washington was obliged to take the field, in the spring of 1777, did not exceed five thousand seven hundred and thirty-eight effective men, exclusive of a small body of cavalry and artillery.[133] The consequence was, a necessary reliance upon militia, to a great extent, throughout that summer. The battle of the Brandywine, fought with an effective force of only eleven thousand men, including militia, against a thoroughly disciplined army of fifteen thousand British and Hessian troops, and fought for the city of Philadelphia as a stake, was lost on the 11th of September.[134] The Congress broke up on the 18th. Sir William Howe took possession of the city on the 26th; and on the 27th, the Congress reassembled at Lancaster. In a few days, they removed to Yorktown, where their sessions continued to be held for several months. The position in which they found themselves, amid the dark clouds which lowered around their cause, seems to have recalled to their recollection the Articles of Confederation, which had lain slumbering upon their table since the 8th of April. On that day, they had resolved that the report should be taken into consideration on the following Monday, and that two days in each week should be employed on the subject, until it had been wholly discussed. When the Monday came, it was postponed; and it was only after they had been driven from Philadelphia by the approach of the enemy, that they seem to have fully realized the fact, that, without a more perfect union and a more efficient government, the country could not be saved. As soon as they had reassembled at Yorktown, after the urgent business of the moment had been attended to, they passed a resolve, on the 2d of October, that the Articles of Confederation be taken into consideration the next day, at eleven o'clock. The discussion did not actually commence, however, until the 7th of October; but from that day it was continued until the 17th of November, when the Articles, as they afterwards went into operation, were adopted for recommendation to the States, and a circular letter was addressed to the several legislatures, submitting the plan of a confederacy, and urging its adoption. * * * * * We are now approaching the period when the American people began to perceive that something more was necessary to their safety and happiness than the formation of State governments;--when they found, or were about to find, that some digested system of national government was essential to the great objects for which they were contending; and that, for the formation of such a government, other arrangements than the varying instructions of different colonies or states to a body of delegates were indispensable. The previous illustrations, drawn from the civil and military history of the country, have been employed to show the character and operation of the revolutionary government, the end of which is drawing near. For we have seen that the great purpose of that government was to secure the independence of each of these separate communities or states from the crown of Great Britain; that it was instituted by political societies having no direct connection with each other except the bond of a common danger and a common object; and that it was formed by no other instrumentality, and possessed no other agency, than a single body of delegates assembled in a congress. For certain great purposes, and in order to accomplish certain objects of common interest, a union of the people of the different States had indeed taken place, bringing them together to act through their representatives; but this union was now failing, from the want of definite powers; from the unwillingness of the people of the country to acquiesce in the exercise of the general revolutionary powers with which it was impliedly clothed; and from the want of suitable civil machinery. In truth, the revolutionary government was breaking down, through its inherent defects, and the peculiar infelicity of its situation. Above all, it was breaking down from the want of a civil executive to take the lead in assuming and exercising the powers implied from the great objects for which it was contending. Its legislative authority, although defined in no written instruments or public charters, was sufficient, under its implied general powers, to have enabled it to issue decrees, directing the execution, by its own agents, of all measures essential to the national safety. But this authority was never exercised, partly because the States were unwilling to execute it, but chiefly because no executive agency existed to represent the continental power, and to enforce its decrees. * * * * * It is a singular circumstance, that, while the revolutionary government was left to conduct the great affairs of the continent through the mere instrumentality of a congress of delegates, and was thus failing for the want of departments and powers, the States were engaged in applying those great principles in the organization and construction of popular governments, under which they may be formed with rapidity and ease, and which are capable of the most varied adaptation to the circumstances and wants of a free people. The suppression of the royal authority throughout the colonies, by virtue of the resolve of the Continental Congress passed on the 10th of May, 1776, rendered necessary the formation of local governments, capable at once of answering the ends of political society, and of continuing without interruption the protection of law over property, life, and public order. Fortunately, as we have seen, the previous constitutions of all the colonies had accustomed the people, to a great extent, to the business of government; and, when the recommendation of the Continental Congress to the several colonies to adopt such governments as would best conduce to their happiness and safety was made immediately after the first effusion of blood, it was addressed to civil societies, in which the people had, in different modes, been long accustomed to witness and to exercise the functions of legislation, and in all of which there were established forms of law, of judicature, and of executive power. The new political situation in which they now found themselves required, in many of the colonies, but little departure from these ancient institutions. The chief innovation necessary was, to bring into practical working the authority of the people, in place of that of the crown of England, as the source of all political power. The changes requisite to effect this were of course to be made at once; the materials for these changes existed everywhere, in the representative institutions which had been long a part of the system of every colony since the first settlement of the country. Thus, as we have seen, in all the provincial, the proprietary, and the charter governments, the freemen of the colony had been accustomed to be represented in the government, in some form; and although those governments, with a few exceptions, were under the direct or indirect restraint of the crown, and could all be reached and controlled by the exercise of arbitrary power, the practice of representation, through popular elections, was everywhere known and familiar. The old constitutions of some of the colonies had also been highly democratic, admitting an election of the executive, as well as of the legislature, directly by the people;[135] while, in others, where the executive was appointed by the crown, the second or less numerous branch of the legislature had been elected by the people, either directly, or indirectly through the popular assembly. The foundations, therefore, for popular governments existed in all the colonies, and furnished the means for substituting the new source of political power, the will of the people, in the place of that of an external sovereign. But there were other materials, also, for the formation of regular and balanced governments, with nearer approaches to perfection and with far greater completeness than a mere democracy can afford to any people, however familiar they may be with the exercise and the practice of government. The people of these colonies had been so trained as to be able to apply those principles in the construction and operation of government which enable it to work freely, successfully, and wisely, while resting on a popular basis. They were able to see, that the whole of what is meant and understood by government is comprehended in the existence and due operation of legislative, executive, and judicial powers.[136] They had lived under political arrangements, in which these powers had been distributed so as to keep them for the most part distinct from each other, and so as to mark the proper limitations of each. If, in some instances, the same individuals had exercised more than one of these powers, the distinctions between the departments, and the principles which ought to regulate such distinctions, had become known. The people of the colonies, in general, therefore, saw that nothing was so important, in constructing a government with popular institutions, as to balance each of these departments against the others, so as to leave to neither of them uncontrolled and irresponsible power. In general, too, they understood, and had always been accustomed to the application of that other fundamental principle, essential to a well-regulated liberty, the division of the legislative power between two separate chambers, having distinct origins and of distinct constructions.[137] But none of these ideas were applied, or were yet thought of being applied, to the construction of a government for the United States; and it is therefore at this period that we are to observe the slow progress making, through disaster and trial, to those great discoveries which led the way to the Constitution, and that we are to mark the first of those failures by which the people of America learnt the bitter wisdom of experience. For the fate of the revolutionary government presents the first illustration in our history of the complete futility of a federative union, whose operation as a government should consist merely in agreeing upon measures in a general council, leaving the execution of those measures to the separate members of the confederacy. But this first illustration, we shall soon see, was not sufficient to establish this truth in the convictions of the American people. Another and a severer trial awaited them. They were not only to be taught once more that a mere federative union was a rope of sand, but they were also to be taught, that a government instituted upon this principle for the purposes of a war, in which the separate members of the confederacy had a common interest, would not answer the exigencies of a country like this, in time of peace. They were to learn, by a trying experience, that the vast concerns of peace are far more complex than the concerns of war; that there were important functions of government to be discharged upon this continent, which only national power and national authority can accomplish, and that those functions are essential, not only to the prosperity and happiness of this nation, but to the continued existence of republican liberty within the States themselves. They were to learn this through a state of things verging upon anarchy; amidst the decay of public virtue; the conflict of sectional interests; and the almost total dissolution of the bands by which society is held together. In this state of things was to be at last developed the fundamental idea on which the Constitution of the United States now rests,--the political union of the _people_ of the United States, as distinguished from a union of the _States_ of which they are citizens. We have, therefore, now reached the first stage in the constitutional history of the country. What has thus far been stated comes to a single point, the earliest great illustration of the radical defects in a purely federative union. The next stage which succeeds presents the second illustration of this important truth. FOOTNOTES: [103] Washington's Writings, III. 403. [104] Writings of Washington, IV. 72. [105] Writings of Washington, IV. 100. [106] Letter to the President of Congress, Washington's Writings, IV. 110. September 24, 1776. [107] Journals, II. 357. [108] 500 acres to a colonel; 450 to a lieutenant-colonel; 400 to a major; 300 to a captain; 200 to a lieutenant; and 150 to an ensign. [109] Journals, II. 357. Subsequently, by a resolve passed November 12 (1776), the option was given to enlist for the war or for three years, taking away the land bounty from those who enlisted for the latter period only. Ibid. 454. [110] Ibid. [111] Journals, II. 403. October 8, 1776. [112] Writings of Washington, IV. 173. [113] Ibid. 183, 184. [114] Writings of Washington, IV. 184. [115] Writings, IV. 190. [116] Ibid. 197. [117] Ibid. 202. [118] Ibid. 206. [119] Ibid. 211. [120] Ibid. 225. [121] Writings, IV. 232. [122] Journals, II. 475. A committee, at the head of which was Robert Morris, was appointed to transmit this resolve to General Washington, and in their letter they said: "We find by these resolves that your Excellency's hands will be strengthened by very ample powers; and a new reformation of the army seems to have its origin therein. Happy it is for this country, that the general of their forces can safely be intrusted with the most unlimited power, and neither personal security, liberty, nor property be in the least degree endangered thereby." In his reply, the General said to the committee: "Yours of the 31st of last month inclosed to me sundry resolves of Congress, by which I find they have done me the honor to intrust me with powers, in my military capacity, of the highest nature, and almost unlimited in extent. Instead of thinking myself freed from all _civil_ obligations, by this mark of their confidence, I shall constantly bear in mind, that, as the sword was the last resort for the preservation of our liberties, so it ought to be the first thing laid aside when those liberties are firmly established. I shall instantly set about the most necessary reforms in the army; but it will not be in my power to make so great a progress as if I had a little leisure time upon my hands." Writings of Washington, IV. 257, 552. [123] Writings of Washington, IV. 551. [124] Writings of Washington, IV. 551. [125] Journals, III. 35. [126] "We have now to lament," said Robert Morris, in a private Letter to General Washington, under date of February 27th, 1777 "the absence from the public councils of America of Johnson, Jay, R. R. Livingston, Duane, Deane, W. Livingston, Franklin, Dickinson, Harrison, Nelson, Hooper, Rutledge, and others not less conspicuous, without any proper appointments to fill their places, and this at the very time they are most wanted, or would be so, if they had not very wisely supplied the deficiency by delegating to your Excellency certain powers, that they durst not have intrusted to any other man. But what is to become of America, and its cause, if a constant fluctuation is to take place among its counsellors, and at every change we find reason to view it with regret?" Writings of Washington, IV. 340, note. [127] Massachusetts, in December, 1776, renewed the credentials of John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry, Francis Dana, and James Lovell, giving power to any three or more of them, with the delegates from the other American States, to concert, direct, and order such further measures as shall to them appear best calculated for the establishment of right and liberty to the American States, upon a basis permanent and secure against the power and art of the British administration; for prosecuting the present war, concluding peace, contracting alliances, establishing commerce, and guarding against any future encroachments and machinations of their enemies; with power to adjourn, &c. (Journals, IV. 14.) New Hampshire in the same month sent William Whipple, Josiah Bartlett, and Mathew Thornton, making any one of them a full delegation, without any other instructions than "to represent" the State in the Continental Congress for one year, and allowing only two of them to attend at a time. (Ibid. 41.) Virginia in the same month appointed Mann Page, in the room of George Wythe, with the same general instructions "to represent" the State. (Ibid. 42.) North Carolina in the same month appointed William Hooper, Joseph Hewes, and Thomas Burke, and invested them "with such powers as may make any act done by them, or any of them, or consent given in the said Congress in behalf of this State, obligatory upon every inhabitant thereof." (Ibid. 37.) South Carolina chose Arthur Middleton, Thomas Hayward, Jr., and Henry Laurens, with power "to concert, agree to, and _execute_ every measure which one or all of them should judge necessary for the defence, security, or interest of this State in particular, and of America in general." (Ibid. 53.) Connecticut sent Roger Sherman, Samuel Huntington, Eliphalet Dyer, Oliver Wolcott, Richard Law, and William Williams, "to consult, advise, and resolve upon measures necessary to be taken and pursued for the defence, security, and preservation of the rights and liberties of the said United States, and for their common safety"; but requiring them "of such their proceedings and resolves to transmit authentic copies from time to time to the General Assembly of this state." (Ibid. 5.) Of the other states, Pennsylvania, Rhode Island, New York, New Jersey, Maryland, and Georgia, which renewed their delegations somewhat later in the year, instructed them simply "to represent" the state in the Continental Congress; and Delaware empowered its delegates, on behalf of the state, "to concert, agree to, and execute any measure which they, together with a majority of the Continental Congress, should judge necessary for the defense, security, interest, and welfare of that State in particular, and America in general." (Ibid. 64, 315, 171, 169, 395, 54, 403, 86.) [128] This was Mr. Abraham Clark, one of the signers of the Declaration of Independence. Mr. Sparks has preserved a curious letter written by this gentleman on the subject. Writings of Washington, IV. 298. [129] The whole of this alarm evidently arose from the use of the words "oath of allegiance" in General Washington's proclamation. Probably this phrase was used by him as a convenient description of the obligation which he intended to exact. He did not use it as a jurist, but as a general and a statesman. In a letter written by him on the 5th of February (1777) to the President of Congress, desiring that body to urge the States to adopt an oath of fidelity, he said: "From the first institution of civil government, it has been the national policy of every precedent state to endeavor to engage its members to the discharge of their public duty by the obligation of some oath"; and he then observes, with his characteristic wisdom, that "an oath is the only substitute that can be adopted to supply the _defect of principle_." He advised that every State should fix upon some oath or affirmation of allegiance, to be tendered to all the inhabitants without exception, and to outlaw those that refused it. (Writings, IV. 311, 312.) Afterwards, when the Legislative Council of New Jersey--where some of the people had refused to take the oath required by his proclamation--applied to him to explain the nature of the oath, and to be furnished with a copy of it, that they might know whether it was the oath prescribed by the General Assembly of that State, he informed them that he had prescribed no form, and had reverted to none prescribed by them; that his instructions to the brigadiers who attended to that duty were, to insist on nothing more than an obligation in _no manner to injure the States_; and that he had left the form to his subordinates; but that if he had known of any form adapted to the circumstances of the inhabitants, he would certainly have ordered it. (Ibid. 319, note.) This explanation makes it quite certain, that what General Washington called in his proclamation an oath of allegiance was merely a military exaction of an obligation in favor of a belligerent power against the enemy; and his advice on the subject of a general civil oath of allegiance, to be exacted by the States, shows that he understood the niceties of the subject as well as any casuist in or out of Congress. This topic may be dismissed by reverting here to the fact, that in February, 1778, Congress prescribed an oath or affirmation, to be taken by the officers of the army, and all others holding office under Congress, which was simply a renunciation of allegiance to the King of Great Britain, an acknowledgment of the independence of the United States, and a promise to support, maintain, and defend them against King George III. and his successors, and to serve the United States in the office mentioned with fidelity, and the best skill and understanding of the party taking the oath. Journals, IV. 49. [130] Ante, p. 100. [131] Letter to General Knox, February 11, 1777. Writings, IV. 316. [132] Letter to Governor Trumbull, May 11, 1777. Writings, IV. 413. See also Letter to Major-General Stephen, May 24, 1777. Ibid. 431. [133] Marshall's Life of Washington, III. 102. [134] The exact numbers of the troops on both sides, in this battle, are not known. Sir William Howe estimated the American force at 15,000, including militia; and this number is given in the Annual Register. But the effective force of the American army was always, at this period of the war, considerably less than the total number; and Chief Justice Marshall states it to have been, on this occasion, 11,000, including militia. The Annual Register gives the number of the royal army brought into action as 15,000. Marshall supposes it to have been 18,000, when they landed on the shores of the Chesapeake. Marshall's Life of Washington, III. 140, 141. Annual Register for 1777, XX. 127. [135] Connecticut and Rhode Island. [136] See John Adams's letter to R. H. Lee. [137] Three of the colonies, namely, New Hampshire, South Carolina, and Virginia, proceeded to form constitutions of government before the Declaration of Independence was adopted, under a special recommendation given to each of them by Congress, in the latter part of the year 1775, addressed to the provincial convention, advising them "to call a full and free representation of the people, to establish such a form of government as in their judgment will best promote the happiness of the people, and most effectually secure good order in the province during the continuance of the present dispute between Great Britain and the colonies." (Journals, I. 231, 235, 279.) In New Hampshire, this suggestion was carried out in January, 1776, by the representatives of the people, who had first met as a Provincial Congress of deputies from the towns, and then assumed the name and authority of a "house of representatives," or "assembly" of the Colony; in which capacity they proceeded to elect twelve persons from the several counties, to form a distinct branch of the legislature, as a council. The council were to elect their own presiding officer. All acts and resolves, to be valid, were required to pass both branches; all public officers, except clerks of courts, were to be appointed by the two houses, and all money bills were to originate in the popular branch. In case the dispute with Great Britain should continue longer than the year 1776, and the general Congress should not give other instructions, it was provided that the council should be chosen by the people of each county, in a mode to be prescribed by the council and house. This form of government continued through the Revolution, and until the year 1790, when a new constitution was formed. (Pitkin's History of the United States, II. 294.) In South Carolina, the Provincial Congress likewise resolved itself a "general assembly," and elected a legislative council, from their own body. By these two bodies, acting jointly, an executive, styled a president, a commander-in-chief, and a vice-president, was chosen. The legislative authority was vested in the president and the two houses. The judiciary were elected by the two houses and commissioned by the president, and were to hold their offices during good behavior, subject to removal on the address of both houses. This form of government remained until June, 1790, when a new constitution was formed by a convention. On the 15th of May, 1776, the Provincial Convention of Virginia proceeded to prepare a declaration of rights and a constitution. The latter declared that the legislative, executive, and judiciary departments ought to be distinct and separate, and divided the legislative department into two branches, the house of delegates and the senate, to be called "the General Assembly of Virginia." The members of the house of delegates were chosen from each county, and one from the city of Williamsburg and one from the borough of Norfolk. The senate consisted of twenty-four members, chosen from as many districts. A governor and council of state were chosen annually by joint ballot of both houses. The legislature appointed the judges, who were commissioned by the governor, and held their offices during good behavior. Massachusetts was one of the colonies whose situation rendered it necessary to defer the formation of a constitution for several years. The transition in that colony from the government of the King to a government of the people took place in the latter part of the year 1774 and the beginning of 1775. The occurrences which led the House of Representatives to resolve themselves into a Provincial Congress have been stated in the text of a previous chapter (ante, p. 26). This body, which assumed the control of the affairs of the colony in October, 1774, first assembled at Cambridge, where they continued in session until the 10th of December, and then dissolved themselves, having first appointed a _Committee of Safety_ to manage the public concerns, until a new Congress should be assembled. On the 1st of February, 1775, a new Provincial Congress met at Cambridge, adjourned to Concord, and thence to Watertown, and were dissolved on the 23d of May. On the 16th of May, they wrote to the Continental Congress, requesting their advice on "taking up and exercising the powers of civil government." In their letter they said, "As the sword should in all free states be subservient to the civil powers, and as it is the duty of the magistrate to support it for the people's necessary defence, we tremble at having an army, although consisting of our own countrymen, established here, without a civil power to provide for and control them." On the 9th of June, the Continental Congress passed a resolve, recommending the election of a new General Assembly, under the directions of the Provincial Congress, and that the Assembly, when chosen, should exercise the powers of government, until a governor of the King's appointment would consent to govern the Colony according to its charter. (Journals, I. 115.) Meanwhile, a third Provincial Congress met at Watertown, on the 31st of May, and sat until the 19th. The new General Assembly of the Province, called "the General Court," after its ancient usage, met in the mode provided by the charter, and elected a council. These two branches continued to administer the government, as nearly in the spirit of the charter as might be, without a governor, until 1780, when a convention was called and a constitution framed, similar in all its main features to the present constitution of the State. The constitutions of the other States were formed under the general recommendation of the resolve of Congress of May 10th, 1776, addressed to all the colonies, which contemplated the formation of permanent governments, and dissolved the allegiance of the people to the crown of Great Britain. The constitutions of New Jersey, Maryland, Delaware, and North Carolina were formed in 1776, and that of New York in April, 1777; all having three branches, the legislative, the executive, and the judiciary, and all having a legislature consisting of two houses. The constitution of Georgia was formed in 1789, after the same general model. That of Pennsylvania was formed in 1776, with a legislature consisting of a single branch, but with the like division of the legislative, executive, and judicial departments. CHAPTER V. NOVEMBER, 1777--MARCH, 1781. ADOPTION OF THE ARTICLES OF CONFEDERATION.--CESSIONS OF WESTERN TERRITORY.--FIRST POLITICAL UNION OF THE STATES. We have now to examine the period which intervened between the recommendation of the Confederation by Congress, in November, 1777, and its final adoption by all the States, in March, 1781;--a period of three years and a half. The causes which protracted the final assent of the States to the new government, and the mode in which the various objections were at length obviated, are among the most important topics in our constitutional history. But, before they are examined, the order of events by which the Confederation finally became obligatory upon all the States should here be stated. The last clause of the Articles of Confederation directed that they should be submitted to the legislatures of all the States to be considered; and if approved of by them, they were advised to authorize their delegates to ratify the instrument in Congress; upon which ratification, it was to become binding and conclusive. On the 20th of June, 1778, a call was made in Congress for the report of the delegations on the action of their several States, and on the 26th of the same month a form of ratification was adopted for signature. On the 9th of July, the ratification was signed by the delegates of eight States; New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, and South Carolina. North Carolina ratified the Articles on the 21st of July; Georgia on the 24th; New Jersey on the 26th of November; Delaware on the 5th of May, 1779; Maryland on the 1st of March, 1781. On the 2d of March, 1781, Congress met under the Confederation. * * * * * Undoubtedly one of the causes which deferred the full adoption of the Confederation to so late a period after it was proposed, was the absence from Congress of many of the most important and able men, whose attention had hitherto been devoted to the affairs of the continent, but who began to be occupied with local affairs, soon after the extraordinary powers were conferred upon General Washington. In October, 1777, Hancock left the chair of Congress, for an absence of two months; and the votes on a resolution of thanks to him, for his services as presiding officer, show a great paucity of talent in Congress at that moment.[138] Twenty-two members only were present, and of these the only names much known to fame, at that time or since, were those of Samuel Adams, John Adams, and Elbridge Gerry of Massachusetts, the two Lees of Virginia, Hayward and Laurens of South Carolina, and Samuel Chase of Maryland. Franklin, Arthur Lee, and Silas Deane were then in France. Patrick Henry was Governor of Virginia. Mr. Jefferson was in the legislature of Virginia, having left Congress in September, in order, as he has himself recorded, to reform the legislation of the State, which, under the royal government, was, he says, full of vicious defects.[139] Mr. Madison was also in the legislature of his native State, a young man of great promise, but unknown at that time as a continental statesman. He entered Congress in March, 1780. In the year 1778, when the delegations were called upon for reports on the action of their several States upon the Confederation, and when the first objections to the Articles were to be encountered, Hancock had returned to Congress. Samuel Adams and Elbridge Gerry were among his colleagues from Massachusetts. Mr. John Adams was in Europe, as Commissioner of the United States to the Court of France. Dr. Franklin was still abroad. Richard Henry Lee of Virginia, Mr. Laurens and Mr. Hayward of South Carolina, Roger Sherman, Samuel Huntington, and Oliver Wolcott of Connecticut, and Robert Morris of Pennsylvania, were present. The rest of the members, with one brilliant exception, were not men of great distinction, influence, or capacity. That exception was Gouverneur Morris, who came into Congress in January of this year, with a somewhat remarkable youthful reputation, acquired in the public councils of New York. When this Congress is compared with that of the year 1776, and it is remembered that the Declaration of Independence bears the names of John Adams and Robert Treat Paine of Massachusetts, Francis Hopkinson of New Jersey, Benjamin Rush and Dr. Franklin of Pennsylvania, Cæsar Rodney of Delaware, Samuel Chase of Maryland, George Wythe, Thomas Jefferson, and Benjamin Harrison of Virginia, William Hooper of North Carolina, and Edward Rutledge and Arthur Middleton of South Carolina,--none of whom were now present,--we perceive at once a striking difference in the two bodies. This difference was not unobserved by those who were then deeply interested in watching the course of public affairs. More than once it filled Washington with dark forebodings;[140] and in the early part of the year 1778, it had attracted the notice of Hamilton, whose vigilant comprehension surveyed the whole field of public affairs, and detected the causes of every danger that threatened the health of the body politic.[141] The objections made by the legislatures of several of the States to the Articles of Confederation were found, when examined, to consist almost entirely of propositions for mere verbal amendments, chiefly for the purpose of rendering the instrument more clear. All of these amendments were rejected. Some of the States objected to the rule for apportioning the taxes and forces to be raised by the States for the service of the Union; but Congress rejected every proposition to alter it, as it was believed to be impossible that any other rule should be agreed upon. But there was an objection made by the State of New Jersey, which should be particularly noticed here, because it foreshadowed the great idea which the Constitution of the United States afterwards embodied. This objection was, that the Articles of Confederation contained no provision by which the foreign trade of the country would be placed under the regulation of Congress. The sixth of the Articles of Confederation declared, that no State should levy any imposts or duties, which might interfere with any stipulations entered into by the United States with any foreign power pursuant to the treaties already proposed to the courts of France and Spain; while the ninth article declared that no treaty of commerce should be made by the United States, whereby the legislative power of the respective States should be restrained from imposing such imposts and duties on foreigners as their own people were subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever. The effect of these provisions was simply to restrain the States from laying imposts which would interfere with the then proposed treaties; in all other respects, the foreign trade of each State was left to be regulated by State legislation. The legislature of New Jersey, in a very able memorial, laid before Congress on the 25th of June, 1778, declared that the sole and exclusive power of regulating the trade of the United States with foreign nations ought to be clearly vested in the Congress, and that the revenue arising from duties and customs ought to be appropriated to the building and support of a navy for the protection of trade and the defence of the coasts, and to other public and general purposes, for the common benefit of the States. They suggested that a great security would be derived to the Union, from such an establishment of a common and mutual interest.[142] But this suggestion was both premature and tardy. It was premature, because the States had not yet learned that their control over foreign commerce must be surrendered, if they would avoid the evils of perpetual conflict with each other; and it came too late, because the Articles of Confederation were practically incapable of amendment, at the period when the suggestion was made.[143] * * * * * The great obstacle, however, to the adoption of the Confederation, which delayed the assent of several of the smaller States for so long a period, was the claim of some of the larger States to the vacant lands lying within what they considered their rightful boundaries. The boundaries of the great States, as fixed by their charters derived from the crown of England, extended, in terms, "to the South Sea," and each of these States, as successor, by the Revolution, to the crown, with regard to territorial sovereignty, claimed to own both the jurisdiction and the property of all the crown lands within its limits. This claim was strenuously resisted by Rhode Island, Delaware, New Jersey, and Maryland. They insisted that Congress ought to have the right to fix the boundaries of the States whose charters stretched to such an indefinite extent into the Western wilderness, and that the unoccupied lands ought to be the property of the whole Union; since, if the independence of the country should be finally established, those lands would have been conquered from the crown of England by the common blood and treasure of all the States. The effect of a tacit recognition of the claims of the great States upon the welfare of such a State as Maryland, through the absence from the Articles of Confederation of any provision on the subject, was strikingly exhibited, by its legislature, in certain instructions to their delegates in Congress, which were laid before that body on the 21st of May, 1779. They pointed out two consequences likely to result from a confirmation of the claim which Virginia had set up to an extensive and fertile country; the one would be, they said, directly injurious to Maryland, while the other would be inconsistent with the letter and spirit of the proposed Confederation. They supposed, on the one hand, that a sale by Virginia of only a small proportion of these lands would draw into her treasury vast sums of money, enabling her to lessen her taxes, and thereby to drain the less wealthy neighboring State of its most useful inhabitants, which would cause it to sink, in wealth and consequence, in the scale of the confederated States. On the other hand, they suggested that Virginia might, and probably would, be obliged to divide its territory, and to erect a new State, under the auspices and direction of the elder, from whom it would receive its form of government, to whom it would be bound by some alliance, and by whose counsels it would be influenced. They declared that, if this were to take place, it would be inconsistent with the letter and spirit of the Confederation already proposed; that, if it were to result in the establishment of a sub-confederacy, an _imperium in imperio_, the State possessed of this extensive dominion must then either submit to all the inconveniences of an overgrown and unwieldy government, or suffer the authority of Congress to interpose at a future time, and lop off a part of its territory to be erected into a new and free state, and admitted into a confederation on such conditions as should be settled by nine States. If, they asked, it should be necessary for the happiness and tranquillity of a State thus overgrown, that Congress should, at some future time, interfere and divide its territory, why should the claim to that territory be now made and insisted upon? Policy and justice, they urged, alike required, that a country,--unsettled at the commencement of the war, claimed by the British crown and ceded to it by the treaty of Paris,--if wrested from the common enemy by the blood and treasure of the thirteen States, should be considered as a common property, subject to be parcelled out by Congress into free, convenient, and independent governments, in such manner and at such times as their wisdom might thereafter direct. Coolly and dispassionately considering the subject, weighing probable inconveniences and hardships against the sacrifice of just and essential rights, they then instructed their delegates to withhold the assent of Maryland to the Confederation, until an article or articles could be obtained in conformity with these views.[144] Against this proposition, the State of Virginia, which had already ratified the Articles of Confederation, so remonstrated, that there appeared to be no prospect of reconciling the difficulty. At this juncture the State of New York came forward, and by an act of its legislature, passed on the 19th of February, 1780, authorized its delegates in Congress to limit the western boundaries of the State, and ceded a portion of its public lands for the use and benefit of such of the United States as should become members of the federal alliance. The motives upon which this concession was expressly made had reference to the formation of the Union, by removing, as far as depended upon the State of New York, the impediment which had so long prevented it.[145] After they had received official notice of this act, by a report made on the 6th of September, 1780, Congress pressed upon the other States, similarly situated, the policy of a liberal surrender of a portion of their territorial claims, as they could not be preserved entire without endangering the stability of the general confederacy;--reminding them how indispensably necessary it was to establish the Federal Union on a fixed and permanent basis, and on principles acceptable to all its respective members,--how essential it was to public credit and confidence, to the support of the army, to the vigor of the national councils, to tranquillity at home, to reputation abroad, and to the very existence of the people of America as a free, sovereign, and independent people. At the same time, they earnestly requested the legislature of the State of Maryland to accede to the Confederation.[146] That State was not without examples of patriotic confidence among her smaller sister States. As early as the 20th of November, 1778, New Jersey had led the way to a generous trust on the part of the States which still remained out of the Union. She declared that the Articles of Confederation were in divers respects unequal and disadvantageous to her, and that her objections were of essential moment to the welfare and happiness of her people; yet, convinced of the present necessity of acceding to the confederacy proposed, feeling that every separate and detached interest ought to be postponed to the general good of the Union, and firmly believing that the candor and justice of the several States would, in due time, remove the inequality of which she complained, she authorized her delegates to accede to the Confederation.[147] Delaware followed with not unequal steps. On the 1st of February, 1779, she declared that, although she was justly entitled to a right, in common with the other members of the Union, to that extensive tract of country lying to the westward of the frontiers of the United States, gained by the blood and treasure of all, and therefore proper to become a common estate, to be granted out on terms beneficial to all; yet, for the same reasons, and from the same motives with those announced by New Jersey, and with a like faith in the sense of justice of her great confederates, she ratified the Articles of Confederation.[148] These examples were not without influence upon the councils of patriotic Maryland. On the 30th of January, 1781, her legislature passed an act, the preamble of which commences with these memorable words: "Whereas it hath been said, that the common enemy is encouraged, by this State not acceding to the Confederation, to hope that the union of the sister States may be dissolved; and they therefore prosecute the war in expectation of an event so disgraceful to America; and our friends and illustrious ally are impressed with an idea, that the common cause would be promoted by our formally acceding to the Confederation: This General Assembly, conscious that this State hath, from the commencement of the war, strenuously exerted herself in the common cause, and fully satisfied that, if no formal confederation were to take place, it is the fixed determination of this State to continue her exertions to the utmost, agreeable to the faith pledged in the Union;--from an earnest desire to conciliate the affection of the sister States, to convince all the world of our unalterable resolution to support the independence of the United States, and the alliance with his most Christian Majesty, and to destroy for ever any apprehension of our friends, or hope in our enemies, of this State being again united to Great Britain;--Be it enacted," &c. The act then proceeded to adopt and ratify the Articles of Confederation, relying on the justice of the other States to secure the interests of the whole in the unoccupied Western territory.[149] As soon as this act of Maryland was laid before Congress, the joyful news was announced to the country, that the Union of the States was consummated under the written instrument, which had been so long projected. The same month which saw the completion of this Union witnessed a cession by Virginia to the United States of all her claims to lands northwest of the river Ohio; but the cession was not finally completed and accepted until the month of March, 1784. This vast territory, now the seat of prosperous and powerful States, came into the possession of the United States, under a provision made by Congress, that such lands should be disposed of for the common benefit of the United States, and should be settled and formed into distinct republican States, to become members of the Federal Union, with the same rights of sovereignty, freedom, and independence as the other States. The historian who may, in any generation, record these noble acts of patriotism and concession, should pause and contemplate the magnitude of the event with which they were connected. He should pause, to render honor to the illustrious deeds of that great community, which first generously withdrew the impediment of its territorial claims; and to the no less gallant confidence of those smaller States, which trusted to the future for the final and complete removal of the inequality of which they complained. He should render honor to the State of New York, for the surrender of a territory to which she believed her legal title to be complete; a title which nothing but the paramount equity of the claims of the whole Confederacy ought to have overcome. That equity she acknowledged. She threw aside her charters and her title-deeds; she ceased to use the language of royal grants, and discarded the principle of succession. She came forth from among her parchments into the forum of conscience, in presence of the whole American people; and--recognizing the justice of their claim to territories gained by their common efforts--to secure the inestimable blessings of union, for their good and for her own, she submitted to the national will the determination of her western boundaries, and devoted to the national benefit her vast claims to unoccupied territories. Equal honor should be rendered to New Jersey, to Delaware, and to Maryland. The two former, without waiting for the action of a single State within whose reputed limits these public domains were situate, trusted wholly to a future sense of justice, and ratified the Union in the confidence that justice would be done. The latter waited; but only until she saw that the common enemy was encouraged, and that friends were disheartened, by her reserve. Seeing this, she hesitated no longer, but completed the union of the States before Virginia had made the cession, which afterwards so nobly justified the confidence that had been placed in her.[150] The student of American constitutional history, therefore, cannot fail to see, that the adoption of the first written constitution was accomplished through great and magnanimous sacrifices. The very foundations of the structure of government since raised rest upon splendid concessions for the common weal, made, it is true, under the stern pressure of war, but made from the noblest motives of patriotism. These concessions evince the progress which the people of the United States were then making towards both a national character and a national feeling. They show that, while there were causes which tended to keep the States apart,--the formation of State constitutions, the conflicting interests growing out of the inequalities of these different communities, and the previous want of a national legislative power,--there were still other causes at work, which tended to draw together the apparently discordant elements, and to create a union in which should be bound together, as one nation, the populations which had hitherto known only institutions of a local character. The time was indeed not come, when these latter tendencies could entirely overcome the former. It was not until the trials of peace had tested the strength and efficiency of a system formed under the trials of war,--when another and a severer conflict between national and local interests was to shake the republic to its centre,--that a national government could be formed, adequate to all the exigencies of both. Still, the year 1781 saw the establishment of the Confederation, caused by the necessities of military defence against an invading enemy. But it was accomplished only through the sacrifice of great claims; and the fact that it was accomplished, and that it led the way to our present Constitution, proves at once the wisdom and the patriotism of those who labored for it. The great office of the Confederation, in our political history, will be a proper topic for consideration, after the analysis of its provisions. But we should not omit to observe here, that, when the union of the States was thus secured, the motives on which it was formed, and the concessions by which it was accompanied and followed, created a vast obstacle to any future dissolution. The immediate object of each State was to obtain its own independence of the crown of Great Britain, through the united, and therefore more powerful, action of all the States. But, in order to effect such a union, that immense territory, over which, in the language of Maryland, "free, convenient, and independent governments" were afterwards to be formed, was to be ceded in advance, or to be impliedly promised to be ceded, to the use and benefit of the whole confederacy. A confederacy of states, which had become possessed of such a common property, was thus bound together by an interest, the magnitude and force of which cannot now be easily estimated. The Union might incur fresh dangers of dissolution, after the war had ceased; its frame of government and its legislative power might prove wholly inadequate to the national wants in time of peace; the public faith might be prostrated, and the national arm enfeebled;--still, while the Confederacy stood as the great trustee of property large enough for the accommodation of an empire, a security existed against its total destruction. No State could withdraw from the Confederation, without forfeiting its interest in this grand public domain; and no human wisdom could devise a satisfactory distribution of property ceded as a common fund for the common benefit of sovereign States, without any fixed ratio of interest in the respective beneficiaries, and without any clear power in the government of the Confederation to deal with the trust itself.[151] FOOTNOTES: [138] Hancock retired on the 31st of October, for a short absence, after an unremitted service of two years and five months in the chair. A vote of thanks was moved, as soon as he had concluded his address; but before the question was put, it was moved "to resolve as the opinion of Congress, that it is improper to thank any president for the discharge of the duties of that office"; and it is a curious fact, that on this motion the States were equally divided. The previous motion was then put, and five States voted in the affirmative, three in the negative, and the delegation of one State was divided. Journals, III. 465-467. [139] Writings of Jefferson, I. 29. [140] Writings of Washington, V. 326, 327, 350. [141] "America once had a representation that would do honor to any age or nation. The present falling off is very alarming and dangerous. What is the cause? and How is it to be remedied? are questions that the welfare of these States requires should be well attended to. The great men who composed our first council,--are they dead, have they deserted the cause, or what has become of them? Very few are dead, and still fewer have deserted the cause: they are all, except the few who still remain in Congress, either in the field, or in the civil offices of their respective States; far the greater part are engaged in the latter. The only remedy, then, is to take them out of these employments, and return them to the place where their presence is infinitely more important. Each State, in order to promote its own internal government and prosperity, has selected its best members to fill the offices within itself, and conduct its own affairs. Men have been fonder of the emoluments and conveniences of being employed at home; and local attachment, falsely operating, has made them more provident for the particular interests of the States to which they belonged, than for the common interests of the Confederacy. This is a most pernicious mistake, and must be corrected. However important it is to give form and efficiency to your interior constitutions and police, it is infinitely more important to have a wise general council; otherwise, a failure of the measures of the Union will overturn all your labors for the advancement of your particular good, and ruin the common cause. You should not beggar the councils of the United States to enrich the administration of the several members. Realize to yourself the consequences of having a Congress despised at home and abroad. How can the common force be exerted, if the power of collecting it be put in weak, foolish, and unsteady hands? How can we hope for success in our European negotiations, if the nations of Europe have no confidence in the wisdom and vigor of the great continental government? This is the object on which their eyes are fixed; hence it is, America will derive its importance or insignificance in their estimation." Letter by Hamilton to George Clinton, written from the head-quarters of the army, February 13, 1778. Writings of Washington, V. 508. [142] Journals, IV. 269, 270. This wise and well-considered document contained many other very important suggestions; among which was that of an oath, test, or declaration to be taken by the delegates in Congress, previous to their admission to their seats. "It is indeed to be presumed," said the memorial, "that the respective States will be careful that the delegates they send to assist in managing the general interests of the Union, take the oaths to the government from which they derive their authority: but as the United States, collectively considered, have interests as well as each particular State, we are of opinion, that some test or obligation, binding upon each delegate while he continues in the trust, to consult and pursue the former as well as the latter, and particularly to assent to no vote or proceeding which may violate the general confederation is necessary. The laws and usages of all civilized nations evince the propriety of an oath on such occasions, and the more solemn and important the deposit, the more strong and explicit ought the obligation to be." [143] Three States only voted in favor of adopting any of the suggestions made by New Jersey: six voted against them, and one was divided. Journals, IV. 272. [144] Secret Journals, I. 433. [145] Secret Journals, I. 440. [146] Ibid. 442. [147] Secret Journals, I. 421. [148] Ibid. 424. [149] Secret Journals, I. 445. [150] After the Confederation had thus been formed, by subsequent cessions of their claims by the other States, to use the language of Mr. Justice Story, "this great source of national dissension was at last dried up." [151] One of the great inducements to the adoption of the Constitution of the United States was to give the general government adequate constitutional power to dispose of the Western territory and to form new States out of it. Congress, under the Confederation, had no express authority to do this, although they proceeded both to dispose of the lands and to erect new States, by the Ordinance of 1787. See The Federalist, No. 38, 42, 43. Story's Commentaries on the Constitution, III. 184-190, 1st edition. CHAPTER VI. NATURE AND POWERS OF THE CONFEDERATION. The nature of the government established by the Articles of Confederation can be understood only by an analysis of their provisions. For this purpose, the instrument must here be examined with reference to three principal topics: first, the union which it established between the different members of the Confederacy; second, the form of the government which it created; and third, the powers which it conferred, or omitted to confer, upon that government. I. The parties to this instrument were free, sovereign, and independent political communities,--each possessing within itself all the powers of legislation and government, over its own citizens, which any political society can possess. But, by this instrument, these several States became united together for certain purposes. The instrument was styled, "Articles of Confederation and Perpetual Union between the States," and the political body thus formed was entitled "The United States of America." The Articles declared--as would, indeed, be implied, in such circumstances, without any express declaration--that each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated by the instrument itself to the United States in Congress assembled. The nature and objects of this union were described as a firm league of friendship between the States, for their common defence, the security of their liberties, and their mutual and general welfare; and the parties bound themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or under any pretence whatever. It was also provided, that the free inhabitants of each State should be entitled to all the privileges of free citizens in the several States;[152] that there should be an open intercourse and commerce between the different States; that fugitives from justice from one State to another should be delivered up; and that full faith and credit should be given in each State to the records, acts, and judicial proceedings of every other State.[153] II. The government established by the Articles of Confederation consisted of a single representative body, called a General Congress. In this body were vested all the powers, executive, legislative, and judicial, granted to the United States. The members of it were to be chosen by the States, in such manner as the legislature of each State might determine; no State to be represented by more than seven delegates, or by less than two. No delegate was eligible for more than three years in a period of six; and no delegate could hold any office of emolument under the United States. Each State was to maintain its own delegates, and in the determination of questions, the voting was to be by States, each State having one vote. III. It should be remembered, that the objects and purposes of the Confederation related chiefly to the defence of the States against external attacks; and it was, therefore, as it purported to be, a league for mutual defence and protection, through the combined powers of the whole, operating in certain forms and under certain restrictions. For the manner in which this new authority was to be exercised, we are to look at the powers conferred upon "the United States in Congress assembled." These powers related to external and to internal affairs. With regard to the external relations of the country, Congress was invested with the sole and exclusive right of determining on peace and war, unless in case of an invasion of a State by enemies, or an imminent danger of invasion by Indians; of sending and receiving ambassadors; of entering into treaties and alliances, under the limitation that no treaty of commerce could be made, which would have the effect to restrain the legislature of any State from imposing such imposts and duties on foreigners as their own people were subjected to, or which would operate to prohibit the exportation or importation of any commodity whatever. Congress was also invested with power to deal with all captures and prizes made by the land or naval forces of the United States; to grant letters of marque and reprisal in times of peace; and to establish courts for the trial of piracies and felonies committed on the high seas, and for determining appeals in cases of capture. With regard to internal affairs, Congress was invested with power to decide, in the last resort, on appeal, all disputes between two or more States, concerning boundary, jurisdiction, or any other cause; and also all controversies concerning land-titles, where the parties claimed under different grants of two or more States before the settlement of their jurisdiction; but no State was to be deprived of territory for the benefit of the United States. Congress was also invested with the sole and exclusive right and power of regulating the alloy and value of coin struck by their authority, or by that of any of the United States; of fixing the standard of weights and measures throughout the United States; of regulating the trade and managing all affairs with the Indians, who were not members of any State, provided that the legislative authority of any State, within its own limits, should not be infringed or violated; of establishing and regulating post-offices from one State to another, and exacting postage to defray the expenses; of appointing all officers of the land forces in the service of the United States, and of making rules for the government and regulation of the land and naval forces, and directing their operations. Congress was also invested with power to appoint a "committee of the States," to sit in the recess of Congress, to consist of one delegate from each State, and other committees and civil officers, to manage the general affairs under their direction; to appoint one of their number to preside, but authorizing no person to serve in the office of president more than one year in a term of three years; to ascertain and appropriate the necessary sums for the public service; to borrow money and emit bills on the credit of the United States; to build and equip a navy; and to agree upon the number of land forces and make requisitions upon each State for its quota, in proportion to the numbers of white inhabitants in such State. The legislature of each State was to appoint the regimental officers, enlist the men, and clothe, arm, and equip them, at the expense of the United States. Such were the powers conferred upon Congress by the Articles of Confederation. But the restrictions imposed, in the same instrument, greatly qualified and weakened, and in fact almost rendered nugatory, the greater part of them. It was expressly provided, that Congress should never engage in a war; nor grant letters of marque or reprisal in time of peace; nor enter into any treaties or alliances; nor coin money or regulate its value; nor ascertain the sums of money necessary for the public purposes; nor emit bills; nor borrow money on the credit of the United States; nor appropriate money; nor agree upon the number of vessels for the navy, or the number of land or sea forces to be raised; nor appoint a commander-in-chief of the army or navy;--unless nine States should assent to the same. The Committee of the States authorized to sit during the recess of Congress could not do any of these things, for the assent of nine States could not be delegated. The revenues of the country were left by the Articles of Confederation wholly in the control of the separate States. It was provided, that all charges of war, and all other expenses for the common defence or general welfare, should be defrayed out of a common treasury; but this treasury was to be supplied, not by taxes, duties, or imposts, levied by or under the authority of Congress, but by taxes to be laid and levied by the legislatures of the several States, within such time as might be fixed by Congress. The amount to be furnished by each State was in proportion to the value of the land within its limits granted or surveyed, and the buildings and improvements thereon, to be estimated according to the mode prescribed by Congress. The sole means, therefore, which the Confederation gave to Congress of supplying the treasury of the United States, was to vote what sum was wanted, and to call upon the legislature of each State to pay in its proportion within a given time. The commerce of the country was left entirely within the control of the State legislatures; rendering it the commerce of thirteen different States, each of which could levy what duties it saw fit upon all exports and imports, provided they did not interfere with any treaties then proposed, or touch the property of the United States, or that of any other State. The United States had no power of taxation, direct or indirect. The Articles of Confederation were also entirely without any provision for enforcing the measures which they authorized Congress to adopt for the general welfare of the Union. It was declared in the instrument, that every State should abide by the determinations of Congress on all the questions over which the instrument gave that body control; that the Articles should be inviolably observed by every State; that the Union should be perpetual; and that no alterations should be made in any of the Articles, unless agreed to by Congress, and confirmed by the legislature of every State. But these declarations, however strong and emphatic in their terms, only made the Confederation in fact, as in name, a league or compact between sovereign States; for it gave the government of the Union no power to enforce its own measures or laws by process upon the persons of individuals, and consequently any party to the instrument could infringe any or all of its provisions, without any other consequence than a resort to arms by the general Confederacy, which would have been civil war. These, with some restrictions upon the power of the States in regard to the making of treaties, engaging in war, sending ambassadors, and some other topics, were the main provisions of the Articles of Confederation; and under the government thus constituted, the United States, on the second day of March, 1781, entered upon a new era of civil polity, and commenced a new existence, under somewhat happier auspices than they had known before. It will be seen, in the further development of the period which followed the establishment of this Confederation, down to the calling of the Convention which framed the Constitution, that what I have called the great office of the Confederation, in our political system, was indeed a function of vast importance to the happiness of the American people, but, at the same time, was one that was necessarily soon fulfilled, to be followed by a more perfect organization for the accomplishment of the objects and the satisfaction of the wants which it brought in its train. This office of the Confederation was, to demonstrate to the people of the American States the practicability and necessity of a more perfect union. The Confederation showed to the people of these separate communities, that there were certain great purposes of civil government, which they could not discharge by their separate means; that independence of the crown of Great Britain could not be achieved by any one of them, unassisted by all the rest; that no one of them, however respectable in population or resources, could be received and dealt with, by the governments of the world, as a nation among nations;--but that, by union among themselves, by some political tie, which should combine all their resources in the hands of one directing power, and make them, in some practical sense, one people, it was possible for them to achieve their independence, and take a place among the nations. The Confederation made it manifest, that these consequences could be secured. It did not, indeed, answer all the purposes, or accomplish all the objects, which had been designed or hoped from it: it was defective as a means; but it taught the existence of an end, and demonstrated the possibility of reaching that end, by showing that in some form, and for some purposes, a union of the States was both possible and necessary. It thus made the permanent idea of union familiar to the people of the different States. It did more than this. It created a larger field for statesmanship, by creating larger interests, to be managed by that higher order of men, who could rise above local concerns and sectional objects, and embrace within the scope of their vision the happiness and welfare of a continent. It introduced to men's minds the great ideas of national power and national sovereignty, as the agencies that were to work out the difficult results, which no local power could accomplish; and, although these ideas were at first vague and indefinite, and made but a slow and difficult progress against influences and prejudices of a narrower kind, they were planted in the thoughts of men, to ripen into maturity and strength in the progress of future years. When the eagle grasped in his talons the united shafts of power, and unfurled the scroll which taught that one people could be formed out of many communities, the destiny of America was ascertained.[154] FOOTNOTES: [152] That is to say, that a citizen of any State might go and reside in any other State, and be there entitled to all the privileges of a citizen of that State. [153] The meaning of this is, that, on the production in any State of a law passed or of a judgment rendered in any other State, properly authenticated, it should be admitted that such a law had been passed or such a judgment rendered in the State whose act it purported to be, and that all the legal consequences should follow. [154] The armorial bearings of the United States were adopted on the 20th of June, 1782. Journals, VII. 395. BOOK II. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE ADOPTION OF THE ARTICLES OF CONFEDERATION, IN 1781, TO THE PEACE OF 1783. CHAPTER I. 1781-1783. REQUISITIONS.--CLAIMS OF THE ARMY.--NEWBURGH ADDRESSES.--PEACE PROCLAIMED.--THE ARMY DISBANDED. The interval of time which extends from the adoption of the Articles of Confederation to the initiatory steps for the formation of the Constitution, must, for our purpose, be divided into two periods; that which preceded and that which followed the peace of 1783; in both of which the defects of the Confederation were rapidly developed, and in both of which efforts were made to supply those defects, by an enlargement of the powers of Congress. Our attention, however, will be confined, in the present Book, to the first of these periods. * * * * * Congress assembled, under the Confederation, on the 2d of March, 1781, and the Treaty of Peace, which put an end to the war and admitted the independence of the United States, was definitively signed on the 3d of September, 1783, and was ratified and proclaimed by Congress on the 14th of January, 1784. Notwithstanding the solemn engagements into which the States had entered with each other, under the Articles of Confederation, the prospect of bringing the war to a close, through a compliance with those obligations, was exceedingly faint, at the commencement of the campaign of 1782. The United States had made a treaty of alliance with the king of France, in 1778;[155] and in pursuance of that treaty, six thousand French troops arrived at Newport in July, 1780, and in the spring of 1781 joined the American army near New York. The presence in the country of a foreign force, sent hither by the ancient rival of England, to assist the people of the United States in their contest for independence, encouraged an undue reliance upon external aid. Many of the States became culpably remiss in complying with the requisitions of Congress; and, although they had so recently authorized Congress to make requisitions, both for men and money, and had provided the form in which they were to be made, the adoption of the Articles of Confederation had very little tendency to render the States prompt to discharge the obligations which they imposed. In October and November, 1781, Congress called upon the States to raise their several quotas of eight millions of dollars, for the use of the United States, and recommended to them to lay taxes for raising these quotas separate from those laid for their own particular use, and to pass acts directing the collectors of the taxes, intended for the use of the United States, to pay the same directly into the treasury of the Union.[156] In December of the same year, Congress also called upon the States, with great urgency, to complete their quotas of troops for the next campaign.[157] The aid of Washington was invoked, to influence the action of the States upon these requisitions. On the 22d of January, 1782, he addressed a circular letter to the governors of the States, to be laid before their respective legislatures, on the subject of finance; reminding them how the whole army had been thrown into a ferment twelve months before, for the want of pay and a regular supply of clothing and provisions; warning them that the recent successes in Virginia, by the capture of Lord Cornwallis's army, might have a fatal tendency to cool the ardor of the country in the prosecution of the war; assuring them that a vigorous prosecution of that war could alone secure the independence of the United States; and urging them to adopt such measures as would insure the prompt payment of the sums which Congress had called for.[158] A few days afterwards, he addressed a similar letter to the States, on the subject of completing their quotas of troops, in which he told them that the continuance or termination of the war now rested on their vigor and decision; and that, even if the enemy were, in consequence of their late reverses, disposed to treat, nothing but a decidedly superior force could enable us boldly to claim our rights and dictate the terms of pacification. "And soon," he said, "might that day arrive, and we might hope to enjoy all the blessings of peace, if we could see again the same animation in the cause of our country inspiring every breast, the same passion for freedom and military glory impelling our youths to the field, and the same disinterested patriotism pervading every rank of men, that was conspicuous at the commencement of this glorious revolution; and I am persuaded that only some great occasion was wanting, such as the present moment exhibits, to rekindle the latent sparks of that patriotic fire into a generous flame, to rouse again the unconquerable spirit of liberty, which has sometimes seemed to slumber for a while, into the full vigor of action."[159] Notwithstanding these urgent appeals, the spring of 1782 arrived, and the summer passed away, without any substantial compliance by the States with the requisitions of Congress for either men or money. When Washington arrived in camp, in May, to commence the campaign that was to extort from the British government--now in the hands of a new ministry, supposed to be more favorable to peace--the terms which he hoped might be procured, there were less than ten thousand men in the Northern army; and their numbers were not much increased during the summer.[160] Great and dangerous discontents now existed in the army, both among officers and soldiers, concerning the arrearages of pay; for, as the prospects of peace became brighter, it seemed to become more and more probable, that the army would ultimately be disbanded without adequate provision for its claims, and that officers and men would be thrown penniless upon the world, unpaid by the country whose independence they had achieved. At this period there occurred the famous proceedings of the officers, called the Newburgh Addresses, on the subject of half-pay; and since the claims of the officers and soldiers, as public creditors of the United States, are intimately connected with the constitutional history of the country, it is needful to give here a brief account of them. The pay of the officers in the Revolutionary army was originally established upon so low a scale, that men with families dependent upon them could feel little inducement to remain long in a service, the close of which was to be rewarded only with a patent for a few hundred acres of land in some part of the Western wilderness. In the year 1778, it had become apparent to Washington, that something must be done to avert the consequences of the mistaken policy on which Congress had acted with reference to the army; and while at Valley Forge,--that scene of dreadful suffering by the army,--he wrote on this subject to the President of Congress the first of a series of most able and instructive letters, which extend through the five following years.[161] On the 17th of April, after this first letter had been laid before Congress, a resolution was moved, that an establishment of half-pay be made for officers, who should serve during the war; to begin after its conclusion.[162] Four days afterwards, the sense of the house was taken on the question, whether there should be any provision made for the officers after the conclusion of the war, and the affirmative was carried, by the votes of eight States against four.[163] On the 26th of April, a proposition, that half-pay be granted for life, to commence at the close of the war, passed by a majority of one State; six States voting in the affirmative, five in the negative, and one being divided.[164] The next day, the value of this vote was destroyed by a resolution, which provided that the United States should have the right to redeem the half-pay for life, by giving to the officer entitled six years' half-pay;[165] and on the 15th of May, Congress substituted for the whole scheme a provision of half-pay for seven years, taking away the option of half-pay for life.[166] This miserable and vacillating legislation shows the unpopularity of the scheme of such an establishment, although demanded alike by considerations of justice and policy.[167] The spirit which, for a time, actuated a large part of the people of this country towards the men who were suffering so much in the cause of national independence, evinces an extreme jealousy for the abstract principles of civil liberty, unmitigated by the generous virtues of justice and gratitude. This spirit was duly represented in Congress. The main arguments employed out of doors were, that pensions were contrary to the maxims and spirit of our institutions; that to grant half-pay for life to the officers was establishing a privileged class of men, who were to live upon the public for the rest of their days; and that the officers entered the service on the pay and inducements originally offered, without any promise or prospect of such a reward. This kind of impracticable adherence to a principle, working in this instance the greatest injustice and leading ultimately to a breach of public faith, was the principal cause that prolonged the war, and made it cost so much suffering, so much blood, and so much treasure. The people of the United States adhered so tenaciously to the principles and axioms of freedom, that, even when they had undertaken a war for their own security and independence against a foreign foe, they would not establish a government with the power of direct taxation, or organize an army with suitable rewards for service. The want of such a power in their government led to the enormous emissions of paper money, which brought with them a long train of sufferings and disasters, ending at last in national bankruptcy. The want of justice to the army placed the civil liberty of the country in imminent danger, and finally led to the cruel oppression of men, whose valor had first won, and whose patriotism then saved it from destruction. In the six months which followed the vote of the 15th of May, 1778, the provision which it had made was found to be wholly inadequate, and General Washington, then at Philadelphia, again earnestly pressed the subject upon the attention of Congress. On the 11th of August, 1779, a report from a committee on this subject being under consideration, a motion was made to amend it, by inserting a provision that the half-pay granted by the resolve of the 15th of May, 1778, be extended so as to continue for life; and this motion was carried by a vote of eight States against four.[168] On the 17th, Congress resolved that the consideration of that part of the report for extending the half-pay be postponed, and that it be recommended to the several States that had not already adopted measures for that purpose, to make such further provision for the officers and soldiers enlisted for the war, who should continue in service till the establishment of peace, as would be an adequate compensation for their dangers, losses, and hardships, either by granting to the officers half-pay for life and proper rewards to the soldiers, or in such other manner as might appear most expedient to the legislatures of the several States.[169] Before the passage of this resolve, the State of Pennsylvania had placed her officers upon an establishment of half-pay for life, and with the happiest consequences. But no other State followed her example; and in the autumn of 1780, it became necessary for Washington to apply to Congress again.[170] At length, in consequence of his earnest and repeated appeals, a resolve was passed, on the 21st of October, that the officers who should continue in service to the end of the war should be entitled to half-pay during life, to commence from the time of their reduction.[171] From this time, therefore, the officers of the army continued in the service, relying upon the faith of the country, as expressed in the vote of the 21st of October, 1780, and believing, until they saw proof to the contrary, that the public faith thus pledged to them would be observed.[172] But they were destined to a severe disappointment; and one of the causes of that disappointment was the adoption of the Articles of Confederation. The very change in the constitutional position of the country, from which the most happy results were anticipated, and which undoubtedly cemented the Union, became the means by which they were cheated of their hopes. The Congress of 1780, which had pledged to them a half-pay for life, was the Revolutionary Congress; but the Congress which was to redeem this pledge was the Congress of the Confederation, which required a vote of nine States for an appropriation of money, or a call upon the States for their proportions. When the vote granting the half-pay for life was passed, there were less than nine States in favor of the measure; and after the Confederation was established, the delegates of the States which originally opposed the provision could not be brought to consider it in its true light,--that of a compact with the officers. It was even contended that the vote, having passed before the Confederation was signed and acted upon, was not obligatory upon the Congress under the Confederation, as that instrument required the votes of nine States for an appropriation of money. In this manner, men deluded themselves with the notion, that a change in the form of a government, or in the constitutional method of raising money to discharge the obligations of a contract, can dissolve those obligations, or alter the principles of justice on which they depend. The States in the opposition to the measure refused to be coerced, as they were pleased to consider it, and in the autumn of 1782, the officers became convinced that they had nothing to hope for from Congress, but a reference of their claims to their several States.[173] In November, 1782, preliminary and eventual articles of peace were agreed upon between the United States and Great Britain, by their plenipotentiaries. Nothing had been done by Congress for the claims of the army, and it seemed highly probable that it would be disbanded without even a settlement of the accounts of the officers, and if so, that they would never receive their dues. Alarmed and irritated by the neglect of Congress; destitute of money and credit and of the means of living from day to day; oppressed with debts; saddened by the distresses of their families at home, and by the prospect of misery before them,--they presented a memorial to Congress in December, in which they urged the immediate adjustment of their dues, and offered to commute the half-pay for life, granted by the resolve of October, 1780, for full pay for a certain number of years, or for such a sum in gross, as should be agreed on by their committee sent to Philadelphia to attend the progress of the memorial through the house. It is manifest from statements in this document, as well as from other evidence, that the officers were nearly driven to desperation, and that their offer of commutation was wrung from them by a state of public opinion little creditable to the country. They recited their hardships, their poverty, and their exertions in the cause; and all that they said was fully borne out by their great commander, in his personal remonstrances with many of the members of Congress. The officers asserted, that many of their brethren, who had retired on the half-pay promised by the resolve of 1780, were not only destitute of any effectual provision, but had become objects of obloquy; and they referred with chagrin to the odious view in which the citizens of too many of the States endeavored to place those who were entitled to that provision. But, from the prevailing feeling in Congress and in the country, nothing better was to be expected than a compromise in place of the discharge of a solemn obligation; and this feeling no American historian should fail to record and to condemn. If these men had borne only the character of public creditors, a state of public feeling which drove them into a compromise of their claims ought always to be severely reprehended. But, beyond the capacity of public creditors, they were the men who had fought the battles which liberated the country from a foreign yoke; who had endured every extremity of hardship, every form of suffering, which the life of a soldier knows; who had stood between the common soldiery and the civil power; and often, at the hazard of their lives, preserved that discipline and subordination which the civil power had done too much to hazard. They were, in a word, the men of whom their commander said, that they had exhibited more virtue, fortitude, self-denial, and perseverance, than had perhaps been then paralleled in the history of human enthusiasm. Painful, therefore, as it is, this lesson, of the wrong that may be done by a breach of public faith, must be read. It lies open on the page of history, and is the case of those to whose right arms the people of this country owe the splendid inheritance of liberty. All real palliations should be sought for and admitted. The country was poor: no proper system of finance had been, or could be, developed by a government which had no power of taxation; and the ideas and feelings of the people of many of the States were provincial, and without the liberality and enlargement of thought which comes of intercourse with the world. But, after every apology has exhausted its force, the conscientious student of history must mark the dereliction from public duty; must admit what the public faith required; and must observe the dangerous consequences which attend, and must ever attend, the breach of a public obligation. The immediate consequences which followed, in this instance, were predicted by General Washington, who gave the clearest warning, in advance of the officers' memorial, of the hazards that would attend the further neglect of their claims. But his warning seems to have been unheeded, or to have made but little impression against the prevailing aversion to touch the unpopular subject of half-pay. The committee of the officers were in attendance upon Congress during the whole winter, and early in March, 1783, they wrote to their constituents that nothing had been done. At this moment, the predicament in which Washington stood, in the double relation of citizen and soldier, was critical and delicate in the extreme. In the course of a few days, all his firmness and patriotism, all his sympathies as an officer, on the one side, and his fidelity to the government on the other, were severely tried. On the 10th of March, an anonymous address was circulated among the officers at Newburgh, calling a meeting of the general and field officers, and of one officer from each company, and one from the medical staff, to consider the late letter from their representatives at Philadelphia, and to determine what measures should be adopted to obtain that redress of grievances which they seemed to have solicited in vain. It was written with great ability and skill.[174] It spoke the language of injured feeling; it pointed directly to the sword, as the remedy for injustice; and it spoke to men who were suffering keenly under public ingratitude and neglect. Its eloquence and its passion fell, therefore, upon hearts not insensible, and a dangerous explosion seemed to be at hand. Washington met the crisis with firmness, but also with conciliation. He issued orders forbidding an assemblage at the call of an anonymous paper, and directing the officers to assemble on Saturday, the 15th, to hear the report of their committee, and to deliberate what further measures ought to be adopted as most rational and best calculated to obtain the just and important object in view. The senior officer in rank present was directed to preside, and to report the result to the Commander-in-chief. On the next day after these orders were issued, a second anonymous address appeared from the same writer. In this paper, he affected to consider the orders of General Washington, assuming the direction of the meeting, as a sanction of the whole proceeding which he had proposed. Washington saw, at once, that he must be present at the meeting himself, or that his name would be used to justify measures which he intended to discountenance and prevent. He therefore attended the meeting, and under his influence, seconded by that of Putnam, Knox, Brooks, and Howard, the result was the adoption of certain resolutions, in which the officers, after reasserting their grievances, and rebuking all attempts to seduce them from their civil allegiance, referred the whole subject of their claims again to the consideration of Congress. Even at this distant day, the peril of that crisis can scarcely be contemplated without a shudder. Had the Commander-in-chief been other than Washington, had the leading officers by whom he was surrounded been less than the noblest of patriots, the land would have been deluged with the blood of a civil war. But men who had suffered what the great officers of the Revolution had suffered, had learned the lessons of self-control which suffering teaches. The hard school of adversity in which they had passed so many years made them sensible to an appeal which only such a chief as Washington could make; and, when he transmitted their resolves to Congress, he truly described them as "the last glorious proof of patriotism which could have been given by men who aspired to the distinction of a patriot army; not only confirming their claim to the justice, but increasing their title to the gratitude, of their country."[175] The effect of these proceedings was the passage by Congress of certain resolves, on the 22d of March, 1783, commuting the half-pay for life to five years' full pay after the close of the war, to be received, at the option of Congress, in money, or in such securities as were given to other creditors of the United States.[176] On the 4th of July, the accounts of the army were ordered to be made up and adjusted, and certificates of the sums due were required to be given in the form directed by the Superintendent of the Finances. On the 18th of October, a proclamation was issued, disbanding the army. * * * * * From this time, the officers passed into the whole mass of the creditors of the United States; and although they continued to constitute a distinct class among those creditors, the history of their claims is to be pursued in connection with that of the other public debts of the country. The value of the votes which fixed their compensation, and paid them in public securities, depended, of course, upon the ability of the government to redeem the obligations which it issued. The general financial powers of the Union, therefore, under the Confederation, must now be considered. FOOTNOTES: [155] The treaty was concluded at Paris, February 6, 1778, and was ratified by Congress on the 5th of May. Journals, IV. 256, 257. [156] Resolves of October 30 and November 2, 1781. Journals, VII. 167, 169. [157] Resolves of December 10, 1781. Journals, VII. 190. [158] Writings, VIII. 226. [159] Writings, VIII. 232, 235. [160] Sparks's Life of Washington, p. 380. [161] Letter of April 10, 1778. Writings of Washington, V. 312. [162] Journals, IV. 221. [163] Ibid. 228, 229. The States which voted in the negative were Rhode Island, Connecticut, New Jersey, and South Carolina. [164] Ibid. 243. The States voting in the negative were Massachusetts, Rhode Island, Connecticut, New Jersey, and South Carolina. The State whose vote was divided was Pennsylvania. [165] Ibid. 244. Under this resolve, each officer was entitled to receive half-pay annually, for the term of seven years after the conclusion of war, if living. [166] Ibid. 288. [167] On the 21st of April, in the resolution reported by a committee, the words "an establishment of half-pay for life" were, on motion, changed to a "provision of half-pay";--an amendment which reveals very plainly the character of the popular objections. Journals, IV. 228. [168] Journals, V. 312. [169] Ibid. 316, 317. [170] Writings of Washington, VII. 165, 246. [171] Journals, VI. 336. [172] See General Washington's letter to General Sullivan (in Congress), November 20, 1780. Writings, VII. 297. [173] See the letter of General Lincoln, Secretary at War, to Washington, cited by Mr. Sparks, VIII. 356. [174] The "Newburgh Addresses" were written by John Armstrong, (afterwards General Armstrong,) then a young man, and aide-de-camp to General Gates, with the rank of Major. (Sparks's Life of Gouverneur Morris, I. 253. United States Magazine for January 1, 1823, New York.) The style of these papers, considering the period when they appeared, is remarkably good. They are written with great point and vigor of expression and great purity of English. For the purpose for which they were designed,--a direct appeal to feeling,--they show the hand of a master. [175] March 18, 1783. Writings, VIII. 396. [176] The resolves gave the option to lines of the respective States, and not to the officers individually in those lines, to accept or refuse the commutation. Journals, VIII. 162. CHAPTER II. 1781-1783. FINANCIAL DIFFICULTIES OF THE CONFEDERATION.--REVOLUTIONARY DEBT.--REVENUE SYSTEM OF 1783. It is not easy to ascertain the amount of the public debt of the United States, at the time when the Confederation went into operation. But on the 1st of January, 1783, it amounted to about forty-two millions of dollars. About eight millions were due on loans obtained in France and Holland, and the residue was due to citizens of the United States. The annual interest of the debt was a little more than two million four hundred thousand dollars.[177] The Confederation had no sooner gone into operation, than it was perceived by many of the principal statesmen of the country, that its financial powers were so entirely defective, that Congress would never be able, under them, to pay even the interest on the public debt. Indeed, before the Confederation was finally ratified, so as to become obligatory upon all the States, on the 3d of February, 1781, Congress passed a resolve, recommending to the several States, as indispensably necessary, to vest a power in Congress to levy for the use of the United States a duty of five per cent. _ad valorem_, at the time and place of importation, upon all foreign goods and merchandise imported into any of the States; and that the money arising from such duties should be appropriated to the discharge of the principal and interest of the debts already then contracted, or which might be contracted, on the faith of the United States, for the support of the war; the duties to be continued until the debts should be fully and finally discharged. It was at this time that the office of Superintendent of the Finances was established, and Robert Morris was unanimously elected by Congress to fill it. He was an eminent merchant of Philadelphia, of known financial skill, devoted to the cause of the country, and possessed of very considerable private resources, which he more than once sacrificed to the public service. Under his administration, it is more than probable that, if the States had complied with the requisitions of Congress, the war would have been brought to a close at an earlier period. But there was scarcely any compliance with those requisitions, and, contemporaneously with this neglect, the proposal to vest in Congress the power to levy duties met with serious opposition. On the 30th of October, 1781, Congress made a requisition upon the States for eight millions of dollars, to meet the service of the ensuing year. In January, 1783, one year and three months from the date of this requisition, less than half a million of this sum had been received into the treasury of the United States. After a delay of nearly two years, one State entirely refused its concurrence with the plan of vesting in Congress a power to levy duties, another withdrew the assent it had once given, and a third had returned no answer. The State which refused to grant this power to Congress was Rhode Island. On the 6th of December, 1782, Congress determined to send a deputation to that State, to endeavor to procure its assent to this constitutional change. The increasing discontents of the army, the loud clamors of the public creditors, the extreme disproportion between the current means and the demands of the public service, and the impossibility of obtaining further loans in Europe unless some security could be held out to lenders, made it necessary for Congress to be especially urgent with the legislature of Rhode Island. But, at the moment when the deputation was about to depart on this mission, the intelligence was received that Virginia had repealed the act by which she had previously granted to Congress the power of laying duties, and the proposal was therefore abandoned for a time.[178] But the leading persons then in Congress--who saw the ruin impending over the country; who were aware that the whole amount of money which Congress had received, to carry on the public business for the year then just expiring, was less than two millions of dollars,[179] while the three branches of feeding, clothing, and paying the army exceeded five millions of dollars per annum, exclusive of all other departments of the public service; and who were equally aware that no means whatever existed of paying the interest on the public debts--resolved still to persevere in their endeavors to procure the establishment of revenues equal to the purpose of funding all the debts of the United States. Among these persons, Hamilton and Madison were the most active; and the part which they took, at this period, in the measures for sustaining the sinking credit of the country, and the efforts which they made, are among the less conspicuous, but not less important services, which those great men performed for their country. Another plan was devised, after the failure of that of 1781, for investing Congress with a power to derive a revenue from duties, and, in April, 1783, its promoters procured for it the almost unanimous consent of Congress. This plan recommended the States to vest in Congress the power of levying certain duties upon goods imported into the country, partly specific and partly _ad valorem_; the proceeds of such duties to be applied to the discharge of the interest or principal of the debts incurred by the United States for supporting the war. The duties were to be collected by collectors appointed by the States, but accountable to Congress. It also recommended to the States to establish, for a term of twenty-five years, substantial and effectual revenues, exclusive of the duties to be levied by Congress for supplying their proportions of fifteen millions of dollars annually, for the same purpose; and that, when this plan had been acceded to by all the States, it should be considered as forming a mutual compact, irrevocable by one or more of them without the consent of the whole. It was also proposed that the rule of proportion fixed by the Confederation should be changed from the basis of real estate to the basis of population. This plan was sent out to the States, accompanied by an address, prepared by Mr. Madison, in which the necessity of the measure was urged with much ability and force. Annexed to this paper were various documents, exhibiting the nature and origin of the public debts, and the meritorious characters of the various public creditors; the whole of the Newburgh Addresses, and the proceedings of the officers; the contracts made with the king of France; and a very able answer by Hamilton to the objections of Rhode Island. No stronger and more direct appeal was ever made to the sense of right of any people. Never was the cause of national honor, public faith, and public safety more powerfully and eloquently set forth.[180] And when we consider the various classes of the public creditors, at the close of the war, and remember that the debts of the country had been contracted for the great purpose of establishing its independence, and that there was scarcely a creditor who had not some claim to the gratitude of the country, we cannot but be astonished that such an appeal as was then made should have fallen, as it did, unheeded upon the legislatures and people of many of the States. In the first place, the debts were due to an ally, the generous king of France, who had loaned to the American people his armies and his treasures; who had added to his loans liberal donations; and whose very contracts for repayment contained proof of his magnanimity. In the next place, they were due to that noble band of officers and soldiers, who had fought the battles of their country, and who now asked only such a portion of their dues as would enable them to retire, with the means of daily bread, from the field of victory and glory into the bosom of peace and privacy, and such effectual security for the residue of their claims, as their country was unquestionably able to provide. In the last place, they were due partly to those citizens of the country who had lent their funds to the public, or manifested their confidence in the government by receiving transfers of public securities from those who had so lent, and partly to those whose property had been taken for the public service.[181] The United States had achieved their independence. They were about to take rank among the nations of the world. As they should meet this crisis, their character would be determined. The rights for which they had contended were the rights of human nature. These rights had triumphed, and now formed the basis of the civil polity of thirteen independent States. The forms of republican government were therefore called upon to justify themselves by their fruits. The higher qualities of national character--justice, good faith, honor, gratitude--were called upon to display an example, that would save the cause of republican liberty from reproach and disgrace.[182] But, unhappily, the establishment of peace tended to weaken the slender bond which held the Union together, by turning the attention of men to the internal affairs of their own States. The advantage and the necessity of giving the regulation of foreign commerce to the general government, if perceived at all, was perceived only by a few leading statesmen. The commercial States fancied that they profited by a condition of things which enabled them as importers to levy contribution on their neighbors. The people did not as yet perceive, that, without some central authority to regulate the whole trade alike, the clashing regulations of rival States would sooner or later destroy the Confederacy. Nor were they willing to be taxed for the payment of the public debts. The people of the United States had not yet begun to feel, that such a burden is to be borne as one of the first of public and social duties. That part of the financial plan of 1783, which required from the States a pledge of internal revenues for twenty-five years, met with so much opposition, that Congress was obliged to abandon it, and to confine its efforts to that part of the scheme which related to the duties on imports. In 1786, all the States, except New York, had complied with the latter part of the plan; but the refusal of that State rendered the whole of it inoperative, and no resource remained to Congress, after the close of the war, but the old method of making requisitions on the States, under the rule of the Confederation.[183] At the return of peace, therefore, the Confederation had had a trial of two years and six months, as a government for purposes of war. It was for these purposes, mainly, that it was established; being in fact, as it was in name, a league of friendship between sovereign States, for their common defence, the security of their liberties, and their mutual and general welfare; the parties to which had bound themselves by it to assist each other against all external attacks. Doubtless the framers of the Confederation contemplated its duration beyond the period of the war; for, besides the perpetual character of the Union, which it sought and professed to establish, it had certain functions which were manifestly to be exercised in peace as well as in war. These functions, however, were few. The government was framed during a revolutionary war, for the purposes of that war, and it went into operation while the war was still waged; taking the place and superseding the powers of the Revolutionary Congress, under which the war had been commenced and prosecuted. A written constitution, with a precise and well-defined mode of operation, had thus succeeded to the vague and indefinite, but ample, powers of the earlier government. But in the very modes of its operation, there was a monstrous defect, which distorted the whole system from the true proportions and character of a government. It gave to the Confederation the power of contracting debts, and at the same time withheld from it the power of paying them. It created a corporate body, formed by the Union and known as the United States, and gave to it the faculty of borrowing money and incurring other obligations. It provided the mode in which its treasury should be supplied for the reimbursement of the public creditor. But over the sources of that supply, it gave the government contracting the debts no power whatever. Thirteen independent legislatures granted or withheld the means which were to enable the general government to pay the debts which the general constitution had enabled it to contract, according to their own convenience or their own views and feelings as to the purposes for which those debts had been incurred. Yet the debts were wholly national in their character, and by the nation they were to be discharged. But, by the operation of the system under which the nation had undertaken to discharge its obligations, the duty of performance was parcelled out among the various subordinate corporations of States, and the country was thus placed in the position of an empire whose power was at the mercy of its provinces, and was sure to be controlled by provincial objects and ideas. A government thus situated, engaged in the prosecution of a war, perpetually borrowing, but never paying, and scarce likely ever to pay, was in a position to prosecute that war with far less than the real energies and resources of the nation: and it stands the recorded opinion of him who conducted his country through the whole struggle, and without whom it could not, under this defective system, have achieved its independence, that the war would have terminated sooner, and would have cost vastly less both of blood and treasure, if the government of the Union had possessed the power of direct or indirect taxation.[184] But the government of the Confederation was one that trusted too much to the patriotism and sense of honor of the different populations of the different States. The moral feelings of a people will prompt to high and heroic deeds; will impel them with irresistible force and energy to the accomplishment of the great objects of liberty and happiness; and will develop in individuals the highest capacity for endurance that human nature can display. They did so in the American Revolution. The annals of no people, struggling for liberty, exhibit more of the virtues of fortitude, self-denial, and an ardent love of freedom, than ours exhibit, especially in the earlier stages of the contest. But any _feelings_ are an unsafe and uncertain reliance for the regular and punctual operations of civil government. The fiscal concerns of a nation, left to depend principally upon the prevailing sentiments of justice, honor, and gratitude,--upon the connection between these sentiments and that passion for liberty which animated the earlier struggles for national independence,--are exposed to great hazards. If an appeal to the feelings of a people constitutes the principal ground of security for the public creditor, other feelings may intervene, which will lead to a denial of the justice of the claim; for it is the very nature of such an appeal to submit the whole question of obligation and duty to popular determination. That government alone is likely to discharge the just obligations of any people, which possesses both the power to declare what those obligations are, and the power to levy the means of payment, without a reference of either point to popular sentiment. The history of the Confederation contains abundant proofs of the soundness of this position. At the close of the war, a debt of more than forty millions of dollars was due from the United States to various classes of creditors, and the whole of it had been contracted either by the government of the Confederation, or by its predecessors, for whose contracts the Confederation was expressly bound, by the Articles, to provide. This debt could not be discharged without a grant of internal revenues from the States, and without a grant of the power to collect other revenues from the external trade of the country. The appeal that was made by the government in order to obtain these grants was addressed almost wholly to the moral sentiments of the people of the different States; the time had scarcely arrived, although rapidly approaching, for an appeal to those interests which were involved in the surrender to the general government of the power of regulating foreign commerce;[185] and consequently the arguments addressed to the sense of justice and the feeling of gratitude were answered by discussions of the propriety, justice, and reasonableness of some of the claims, for which the States were thus called upon to provide, as existing debts of the country, not without the hope, entertained in some quarters, of involving the whole in confusion and final rejection.[186] The design of the framers of the revenue system of 1783 was twofold; first, to do justice to the creditors of the country, by procuring adequate power to fund the public debts; and second, to strengthen and consolidate the national government, by means of those debts and of the various interests which would be combined in the great object of their liquidation. They foresaw, on the approach of peace, that to leave these debts to be provided for by the States individually would lead to a separation of interests fatal to the continuance of the Union; but that to make the United States responsible for the whole of them would be to create a bond of union, that would be effectual and operative, after the external pressure of war, which had hitherto held the States together, should have been removed. For this purpose, they undoubtedly availed themselves of the discontents of the army, a class of the public creditors the justice of whose claims there was immediate danger in denying. There is no reason to suppose that these discontents were promoted by any one concerned in giving direction to the action of Congress. But before the crisis had been reached in the "Newburgh Addresses," it was perceived to be extremely important to prevent the army from turning away from the general government, as their debtor, to look to their respective States; and, after the imminent hazard of that moment had passed, the claims of the army were used, and used most rightfully, to impress upon the States the necessity of yielding to Congress the powers necessary to do justice.[187] In the proposal of this scheme of finance, involving, as it did, a material change in the operation of the existing constitution of the country, there was great wisdom; and it was eminently fortunate that it went forth before the advent of peace, to be considered and acted upon by the States. The system of the Confederation had utterly failed to supply the means of sustaining the public credit of the Union, and the consciousness of that failure tended to produce a resolution of the Union into its component elements, the States. Men had begun to abandon the hope of paying the debts of the country; or, if they were to be paid at all, they had begun to look to the States, in their individual capacities, as the ultimate debtors, to whom at least a part of the claims was to be referred. Had the country been permitted to pass from a state of war to a state of peace, without the suggestion and proposal of a definite system for funding these debts on continental securities, the Union would at once have been exhausted of all vitality. The Confederation, left to discharge the functions which belonged to it in peace, without the power of relieving the burdens which it had entailed upon the country during the war, would have been everywhere regarded as a useless machine, the purposes of which--poorly answered in the period of its greatest activity--had entirely ceased to exist. Congress would have been attended by delegates from few of the States, if attended at all;[188] and the rapid decay of the Union would have been marked by the feeble, spasmodic, and unsuccessful efforts of some of them to discharge so much of the general burdens as could have been assigned to them in severalty; the open repudiation of others; and the final confusion and loss of the whole mass of the debts, in universal bankruptcy, poverty, and disgrace. But the comprehensive scheme of 1783, although never adopted, saved the imperfect Union that then existed from the destruction to which it was hastening. It saved it for a prolonged, though feeble existence, through a period of desperate exhaustion. It saved it, by ascertaining the debts of the country, fixing their national character, and proposing a national system for their discharge. It directed the attention of the States to the advantage and the necessity of giving up to the Union some part of the imposts that might be levied on foreign commodities, and thus led the way to that grand idea of uniformity of regulation, which was afterwards developed as the true interest of communities, which, from their geographical and moral relations, constitute in fact but one country. It is not intended, however, in assigning this influence to the revenue system proposed in 1783, to suggest that it contained the germ of the present Constitution. It was an essentially different system. It proposed the enlargement of the powers of Congress, as they existed under the Confederation, only by the grant to the United States of the right to collect certain duties on foreign importations, for the limited period of twenty-five years, to be applied to the discharge of the debts contracted for the purposes of the war, but to be collected by officers appointed by the States, although amenable to Congress; and the levy and collection by the States of certain internal taxes, during the same limited term, for the purpose of raising certain proportionate sums, to be paid over to the United States, for the same object. So far, therefore, as this system suggested any new powers, there is a wide difference between its features and principles and those of an entire and irrevocable surrender to the Union of the whole subject of taxing and regulating foreign commerce. But the influence of this proposal upon the country, during the four years which followed, is to be measured by the evident necessities which it revealed, and by the means to which it pointed for their relief;--means which, though never applied, and, if applied, would have proved inadequate, still showed, through the period of increasing weakness in the Union, the high obligations which rested upon the country, and which could be discharged only by the preservation of the Union. * * * * * NOTE TO PAGE 185. ON THE HALF-PAY FOR THE OFFICERS OF THE REVOLUTION. In Connecticut, the opposition to the plan of enabling Congress to fund the public debts arose from the jealousy with which the provision of half-pay for the officers of the army had always been regarded in that State. In October, 1783, Governor Trumbull, in an address to the Assembly declining a reëlection, had spoken of the necessity of enlarging the powers of Congress, and of strengthening the arm of the government. A committee reported an answer to this address, which contained a paragraph approving of the principles which the Governor had inculcated, but it was stricken out in the lower house. Jonathan Trumbull, Jr., who had been one of Washington's aids, thus wrote to him concerning the rejection of this paragraph: "It was rejected, lest, by adopting it, they should seem to convey to the people an idea of their concurring with the political sentiments contained in the address; so exceedingly jealous is the spirit of this State at present respecting the powers and the engagements of Congress, arising principally from their aversion to the half-pay and commutation granted to the army; principally, I say, arising from this cause. It is but too true, that some few are wicked enough to hope, that, by means of this clamor, they may be able to rid themselves of the whole public debt, by introducing so much confusion into public measures as shall eventually produce a general abolition of the whole." (Writings of Washington, IX. 5, note.) It appears from the Journals of Congress, that in November, 1783, the House of Representatives of Connecticut sent some remonstrance to Congress respecting the resolution which had granted half-pay for life to the officers, which was referred to a committee, to be answered. In the report of this committee it was said, that "the resolution of Congress referred to appears by the yeas and nays to have been passed according to the then established rules of that body in transacting the business of the United States; the resolution itself had public notoriety, and does not appear to have been formally objected against by the legislature of any State till after the Confederation was completely adopted, _nor till after the close of the war_." These words were stricken out from the report by a vote of six States against one, two States declining to vote. The journal gives no further account of the matter. (Journals, IX. 79. March 12, 1784.) In Massachusetts, the half-pay had always been equally unpopular. The legislature of that State, on the 11th of July, 1783, addressed a letter to Congress, to assign, as a reason for not agreeing to the impost duty, the grant of half-pay to the officers. The tone of this letter does little credit to the State. "_Commonwealth of Massachusetts._ "Boston, July 11. 1783. "Sir:-- "The Address of the United States in Congress assembled has been received by the legislature of the Commonwealth of Massachusetts; and, while they consider themselves as bound in duty to give Congress the highest assurance that no measures consistent with their circumstances, and the constitution of this government and the Federal Union, shall remain unattempted by them to furnish those supplies which justice demands, and which are necessary to support the credit and honor of the United States, they find themselves under a necessity of addressing Congress in regard to the subject of the half-pay of the officers of the army, and the proposed commutation thereof; with some other matters of a similar nature, which produce among the people of this Commonwealth the greatest concern and uneasiness, and involve the legislature thereof in no small embarrassments. The legislature have not been unacquainted with the sufferings, nor are they forgetful of the virtue and bravery, of their fellow-citizens in the army; and while they are sensible that justice requires they should be fully compensated for their services and sufferings, at the same time it is most sincerely wished that they may return to the bosom of their country, under such circumstances as may place them in the most agreeable light with their fellow-citizens. Congress, in the year 1780, resolved, that the officers of the army, who should continue therein during the war, should be entitled to half-pay for life; and at the same time resolved, that all such as should retire therefrom, in consequence of the new arrangement which was then ordered to take place, should be entitled to the same benefit; a commutation of which half-pay has since been proposed. The General Court are sensible that the United States in Congress assembled are, by the Confederation, vested with a discretionary power to make provision for the support and payment of the army, and such civil officers as may be necessary for managing the general affairs of the United States; but in making such provision, due regard ever ought to be had to the welfare and happiness of the people, the rules of equity, and the spirit and general design of the Confederation. We cannot, on this occasion, avoid saying, that, with due respect, we are of opinion those principles were not duly attended to, in the grant of half-pay to the officers of the army; that being, in our opinion, a grant of more than an adequate reward for their services, and inconsistent with that equality which ought to subsist among citizens of free and republican States. Such a measure appears to be calculated to raise and exalt some citizens in wealth and grandeur, to the injury and oppression of others, even if the inequality which will happen among the officers of the army, who have performed from one to eight years' service, should not be taken into consideration. The observations which have been made with regard to the officers of the army will in general apply to the civil officers appointed by Congress, who, in our opinion, have been allowed much larger salaries than are consistent with the state of our finances, the rules of equity, and a proper regard to the public good. And, indeed, if the United States were in the most wealthy and prosperous circumstances, it is conceived that economy and moderation, with respect to grants and allowances, in opposition to the measures which have been adopted by monarchical and luxurious courts, would most highly conduce to our reputation, even in the eyes of foreigners, and would cause a people, who have been contending with so much ardor and expense for republican constitutions and freedom, which cannot be supported without frugality and virtue, to appear with dignity and consistency; and at the same time would, in the best manner, conduce to the public happiness. It is thought to be essentially necessary, especially at the present time, that Congress should be expressly informed, that such measures as are complained of are extremely opposite and irritating to the principles and feelings which the people of some Eastern States, and of this in particular, inherit from their ancestry. The legislature cannot without horror entertain the most distant idea of the dissolution of the Union which subsists between the United States, and the ruin which would inevitably ensue thereon; but with great pain they must observe, that the extraordinary grants and allowances which Congress have thought proper to make to their civil and military officers have produced such effects in this Commonwealth as are of a threatening aspect. From these sources, and particularly from the grant of half-pay to the officers of the army, and the proposed commutation thereof, it has arisen, that the General Court has not been able hitherto to agree in granting to the United States an impost duty, agreeable to the recommendation of Congress; while the General Assembly at the same time have been deeply impressed with a sense of the necessity of speedily adopting some effectual measures for supplying the continental treasury, for the restoration of the public credit, and the salvation of the country;--and propose, as the present session is near terminating, again to take the subject of the impost duty into consideration early in the next. From these observations, you may easily learn the difficult and critical situation the legislature is in, and they rely on the wisdom of Congress to adopt and propose some measure for relief in this extremity. "In the name and by order of the General Court, "We are your Excellency's most obedient humble servants, "SAMUEL ADAMS, _President of the Senate_. "TRISTRAM DALTON, _Speaker of the House of Representatives_. "HIS EXCELLENCY THE PRESIDENT OF CONGRESS." This letter was thought worthy an answer, and accordingly a report upon it was brought in by Mr. Madison, and adopted in Congress, containing among other things the following:-- "Your committee consider the measure of Congress as the result of a deliberate judgment, framed on a general view of the interests of the Union at large. They consider it to be a truth, that no State in this Confederacy can claim (more equitably than an individual in a society) to derive advantages from a Union, without conforming to the judgment of a constitutional majority of those who compose it; still, however, they conceive it will be found no less true, that, if a State every way so important as Massachusetts should withhold her solid support to constitutional measures of the Confederacy, the result must be a dissolution of the Union;--and then she must hold herself as alone responsible for the anarchy and domestic confusion that may succeed, and for exposing all these confederated States (who at the commencement of the late war leagued to defend her violated rights) an easy prey to the machinations of their enemies, and the sport of European politics; and therefore they are of opinion, that Congress should still confide that a free, enlightened, and generous people will never hazard consequences so perilous and alarming, and in all circumstances rely on the wisdom, temper, and virtue of their constituents, which (guided by an all-wise Providence) have ever interposed to avert impending evils and misfortunes. Your committee beg leave further to observe, that, from an earnest desire to give satisfaction to such of the States as expressed a dislike to the half-pay establishment, a sum in gross was proposed by Congress, and accepted by the officers, as an equivalent for their half-pay. That your committee are informed, that such equivalent was ascertained on established principles which are acknowledged to be just, and adopted in similar cases; but that if the objections against the commutation were ever so valid, yet, as it is not now under the arbitration of Congress, but an act finally adopted, and the national faith pledged to carry it into effect, they could not be taken into consideration. With regard to the salaries of civil officers, it may be observed, that the necessaries of life have been very high during the war: hence it has happened that even the salaries complained of have not been found sufficient to induce persons properly qualified to accept of many important offices, and the public business is left undone." (Journals of Congress, VIII. 379--385. September 25, 1783.) * * * * * NOTE TO PAGE 186. ON THE NEWBURGH ADDRESSES. There was a period in this business, when the officers would have accepted from Congress a recommendation to their several States for the payment of their dues. Their committee, consisting of General McDougall, Colonel Brooks of Massachusetts, and Colonel Ogden of New Jersey, arrived in Philadelphia about the 1st of January. In their memorial to Congress, they abstained from designating the funds from which they desired satisfaction of their demands, because their great object was to get a settlement of their accounts and an equivalent for the half-pay established. But they were, in fact, at one time, impressed with the belief that their best, and indeed their only security, was to be sought for in funds to be provided by the States, under the recommendation of Congress. This plan would have involved a division of the army into thirteen different parts, leaving the claims of each part to be satisfied by its own State: a course that would unquestionably have led to the rejection of their demands in some States, and probably in many. To prevent this, there is little doubt that the influence of those members of Congress who wished to promote their interests, and to identify them with the interests of the other public creditors, was used; and by the middle of February the committee of the officers became satisfied, that the army must unitedly pursue a common object, insisting on the grant of revenues to the general government, adequate to the liquidation of all the public debts. (Letter of Gouverneur Morris to General Greene, February 15, 1783. Life, by Sparks, I. 250.) The point, however, which they continued to urge, was the commutation; and upon this they encountered great obstacles. The committee of Congress to whom their memorial was referred went into a critical examination of the principles of annuities, in order to determine on an equivalent for the half-pay for life, promised by the resolve of 1780. The result was a report, declaring that six years' full pay was the proper equivalent. This report was followed by a declaratory resolve, which was passed, "that the troops of the United States, in common with all the creditors of the same, have an undoubted right to expect security; and that Congress will make every effort to obtain, from the respective States, substantial funds, adequate to the object of funding the whole debt of the United States, and will enter upon an immediate and full consideration of the nature of such funds, and the most likely mode of obtaining them." The remainder of the report, however, was referred to a new committee of five, the number of years being considered too many. The second committee reported five years' whole pay as an equivalent, after another calculation of annuities; but the approval of nine States could not be obtained. A desire was then expressed by some of the members, who were opposed both to the commutation and the half-pay, to have more time for consideration, and this was granted. This was the position of the matter on the 8th of February, when the committee of the officers wrote to General Knox on the part of the army. They stated that "Massachusetts, New York, Pennsylvania, Virginia, North and South Carolina were for the equivalent; New Hampshire, Rhode Island, Connecticut, and Jersey against it. There is some prospect of getting one more of these States to vote for the commutation. If this is accomplished, with Maryland and Delaware, the question will be carried; whenever it is, as the report now stands, it will be at the election of the line, as such, to accept of the commutation or retain their claim to the half-pay, Congress being determined, that no alteration shall take place in the emolument held out to the army but by their consent. This rendered it unnecessary for us to consult the army on the equivalent for half-pay. The zeal of a great number of members of Congress to get continental funds, while a few wished to have us referred to the States, induced us to conceal what funds we wished or expected, lest our declaration for one or the other might retard a settlement of our accounts, or a determination on the equivalent for half-pay. Indeed, some of our best friends in Congress declared, however desirous they were to have our accounts settled, and the commutation fixed, as well as to get funds, yet they would oppose referring us to the States for a settlement and security, till all prospect of obtaining continental funds was at an end. Whether this is near or not, as commutation for the half-pay was one of the principal objects of the address, the obtaining of that is necessary, previous to our particularizing what fund will be most agreeable to us: this must be determined by circumstances. If Congress get funds, we shall be secured. If not, the equivalent settled, a principle will be established, which will be more acceptable to the Eastern States than half-pay, if application must be made to them. As it is not likely that Congress will be able to determine soon on the commutation, (for the reasons above mentioned,) it is judged necessary that Colonel Brooks return to the army, to give them a more particular detail of our prospects than can be done in the compass of a letter." (Writings of Washington, VIII. 553, 554.) Two classes of persons existed at this time in Congress, of very different views; the one attached to State, the other to continental politics; the one strenuous advocates for funding the public debts upon solid securities, the other opposed to this plan, and finally yielding to it only in consequence of the clamors of the army and the other public creditors. The advocates for continental funds, convinced that nothing could be done for the public credit by any other measures, determined to blend the interests of the army and those of the other creditors in their scheme, in order to combine all the motives that could operate upon different descriptions of men in the different States. Washington, who naturally regarded the interests of the army as the first object in point of importance, and who had not given his attention so much to the general financial affairs of the country, seems to have thought it unadvisable to bring the claims of the army before the States, in connection with the other public debts. On the 4th of March, he wrote to Hamilton (then in Congress), that "the just claims of the army ought, and it is to be hoped will, have their weight with every sensible legislature in the United States, if Congress point to their demands, and show, if the case is so, the reasonableness of them, and the impracticability of complying with them without their aid. In any other point of view, it would in my opinion be impolitic to introduce the army on the tapis, lest it should excite jealousy and bring on its concomitants. The States surely cannot be so devoid of common sense, common honesty, and common policy, as to refuse their aid on a full, clear, and candid representation of facts from Congress; more especially if these should be enforced by members of their own body, who might demonstrate what the inevitable consequences of failure will lead to." (Writings, VIII. 390.) But while the advocates of the continental system were maturing their plans, new difficulties arose, in consequence of the proceedings of the officers at Newburgh, and of the jealousies which the army began to entertain. Among the resolutions adopted by the officers was one, which expressed their unshaken confidence in the justice of Congress and the country, and their conviction that Congress would not disband them, until their accounts had been liquidated, and adequate funds established for their payment. But Congress had no constitutional power, under the Confederation, to demand funds of the States; and to determine that the army should be continued in service until the States granted the funds, which it was intended to recommend, would be to determine that it should remain a standing army in time of peace, until the States should comply with the recommendation. On the other hand, Congress had no present means of paying the army, if they were to disband them. This dilemma rendered it necessary to evade for a short time any explicit declaration of the purposes of Congress as to disbanding the army; and hence arose a jealousy, on the part of the army, that they were to be used as mere puppets to operate upon the country, in favor of a general revenue system. Washington himself communicated the existence of these suspicions to Hamilton, on the 4th of April, advising that the army should be disbanded as soon as possible, consulting its wishes as to the mode. He also intimated that the Superintendent of the Finances, Robert Morris, was suspected to be at the bottom of the scheme of keeping the army together, for the purpose of aiding the adoption of the revenue system. Hamilton's reply explains the position of the whole matter, and the motives and purposes of those with whom he acted. "But the question was not merely how to do justice to the creditors, but how to restore public credit. Taxation in this country, it was found, could not supply a sixth part of the public necessities. The loans in Europe were far short of the balance, and the prospect every day diminishing; the court of France telling us, in plain terms, she could not even do as much as she had done; individuals in Holland, and everywhere else, refusing to part with their money on the precarious tenure of the mere faith of this country, without any pledge for the payment either of principal or interest. In this situation, what was to be done? It was essential to our cause that vigorous efforts should be made to restore public credit; it was necessary to combine all the motives to this end, that could operate upon different descriptions of persons in the different States. The necessity and discontents of the army presented themselves as a powerful engine. But, sir, these gentlemen would be puzzled to support their insinuations by a single fact. It was indeed proposed to appropriate the intended impost on trade to the army debt, and, what was extraordinary, by gentlemen who had expressed their dislike to the principle of the fund. I acknowledge I was one that opposed this, for the reasons already assigned, and for these additional ones: _that_ was the fund on which we most counted to obtain further loans in Europe; it was necessary we should have a fund sufficient to pay the interest of what had been borrowed and what was to be borrowed. The truth was, these people in this instance wanted to play off the army against the funding system. As to Mr. Morris, I will give your Excellency a true explanation of his conduct. He had been for some time pressing Congress to endeavor to obtain funds, and had found a great backwardness in the business. He found the taxes unproductive in the different States; he found the loans in Europe making a very slow progress; he found himself pressed on all hands for supplies; he found himself, in short, reduced to this alternative,--either of making engagements which he could not fulfil, or declaring his resignation in case funds were not established by a given time. Had he followed the first course, the bubble must soon have burst; he must have sacrificed his credit and his character, and _public_ credit, already in a ruined condition, would have lost its last support. He wisely judged it better to resign; this might increase the embarrassments of the moment, but the necessity of the case, it was to be hoped, would produce the proper measures, and he might then resume the direction of the machine with advantage and success. He also had some hope that his resignation would prove a stimulus to Congress. He was, however, ill-advised in the publication of his letters of resignation. This was an imprudent step, and has given a handle to his personal enemies, who, by playing upon the passions of others, have drawn some well-meaning men into the cry against him. But Mr. Morris certainly deserves a great deal from his country. I believe no man in this country but himself could have kept the money machine going during the period he has been in office. From every thing that appears, his administration has been upright as well as able. The truth is, the old leaven of Deane and Lee is at this day working against Mr. Morris. He happened in that dispute to have been on the side of Deane, and certain men can never forgive him.... The matter, with respect to the army, which has occasioned most altercation in Congress, and most dissatisfaction in the army, has been the half-pay. The opinions on this head have been two: one party was for referring the several lines to their States, to make such commutation as they should think proper; the other, for making the commutation by Congress, and funding it on continental security. I was of this last opinion, and so were all those who will be represented as having made use of the army as our puppets. Our principal reasons were:--First, by referring the lines to their respective States, those which were opposed to the half-pay would have taken advantage of the officers' necessities to make the commutation short of an equivalent. Secondly, the inequality which would have arisen in the different States when the officers came to compare, (as has happened in other cases,) would have been a new source of discontent. Thirdly, such a reference was a continuance of the old, wretched State system, by which the ties between Congress and the army have been nearly dissolved,--by which the resources of the States have been diverted from the common treasury and wasted: a system which your Excellency has often justly reprobated. I have gone into these details to give you a just idea of the parties in Congress. I assure you, upon my honor, sir, I have given you a candid statement of facts, to the best of my judgment. The men against whom the suspicions you mention must be directed, are in general the most sensible, the most liberal, the most independent, and the most respectable characters in our body, as well as the most unequivocal friends to the army; in a word, they are the men who think continentally." (Life of Hamilton, II. 162-164.) FOOTNOTES: [177] The debt due to the crown of France was ascertained in 1782 to be eighteen millions of livres; and by the contract entered into by the Unites States with the king of France, on the 16th of July, 1782, the principal of this debt was to be paid in twelve annual instalments of one million five hundred thousand livres each, in twelve years, to commence from the third year after a peace, at the royal treasury in Paris. The interest was payable annually, at the time and place stipulated for the payment of the instalments of the principal, at five per cent. The king generously remitted the arrears of interest due at the date of the contract. There was also due to the King of France ten millions of livres, borrowed by him of the States-General of the Netherlands for the use of the United States, and the payment of which he had guaranteed. This sum was to be paid in Paris in ten annual instalments of one million of livres each, commencing on the 5th of November, 1787. The interest on this loan was payable in Paris immediately, and the first payment of interest became due on the 5th of November, 1782. There was also due to the Farmers-General of France one million of livres, and to the king six millions of livres, on a loan for the year 1783; making in the whole thirty-eight millions of livres, or $7,037,037, due in France. There was also due to money-lenders in Holland $671,000; for money borrowed by Mr. Jay in Spain, $150,000; and a year's interest on the Dutch loan of ten millions of livres, amounting to $26,848;--making the whole foreign debt $7,885,085. The domestic debt amounted to $34,115,290. Five millions of this were due to the army, _under the commutation_ resolves of March, 1783. The residue was held by other citizens, or consisted of arrears of interest. The whole debt of the United States was estimated at $42,000,375, and the annual interest of this sum was $2,415,956. [178] Mr. Madison (under the date of December 24, 1782) says, that, on the receipt of this intelligence, "the most intelligent members were deeply affected, and prognosticated a failure of the impost scheme, and the most pernicious effects to the character, the duration, and the interests of the Confederacy. It was at length, notwithstanding, determined to persist in the attempt for permanent revenue, and a committee was appointed to report the steps proper to be taken." Debates in the Congress of the Confederation, Elliot, I. 17. [179] $1,545,818 and 30/90 was the whole amount. [180] On the final question, as to the revenue system, Hamilton voted against it. His reasons were given in a letter to the Governor of New York, under date of April 14, 1783. They were, "First, that it does not designate the funds (except the impost) on which the whole interest is to arise; and by which (selecting the capital articles of visible property) the collection would have been easy, the funds productive, and necessarily increasing with the increase of the country. Secondly, that the duration of the funds is not coextensive with the debt, but limited to twenty-five years, though there is a moral certainty that in that period the principal will not, by the present provision, be fairly extinguished. Thirdly, that the nomination and appointment of the collectors of the revenue are to reside in each State, instead of, at least, the nomination being in the United States; the consequence of which will be, that those States which have little interest in the funds, by having a small share of the public debt due to their own citizens, will take care to appoint such persons as are the least likely to collect the revenue." Still, he urged the adoption of the plan by his own State, "because it is her interest, at all events, to promote the payment of the public debt in continental funds, independent of the general considerations of union and propriety. I am much mistaken, if the debts due from the United States to the citizens of the State of New York do not considerably exceed its proportion of the necessary funds; of course, it has an immediate interest that there should be a continental provision for them. But there are superior motives that ought to operate in every State,--the obligations of national faith, honor, and reputation. Individuals have been too long already sacrificed to the public convenience. It will be shocking, and, indeed, an eternal reproach to this country, if we begin the peaceable enjoyment of our independence by a violation of all the principles of honesty and true policy. It is worthy of remark, that at least four fifths of the domestic debt are due to the citizens of the States from Pennsylvania, inclusively, northward." Life of Hamilton, II. 185, 186. [181] Address. [182] Ibid. [183] With what success this was attended may be seen from the fact, that, from the year 1782 to the year 1786, Congress made requisitions on the States for the purpose of paying the interest on the public debts, of more than six millions of dollars, and on the 31st of March, 1787, about one million only of this sum had been received. The interest of the debt due to domestic creditors remained wholly unpaid; money was borrowed in Europe to pay the interest on the foreign loans; and the domestic debt sunk to so low a value, that it was often sold for one tenth of its nominal amount. [184] General Washington's letter to Hamilton, March 31, 1783. Writings, VIII. 409, 410. Circular Letter to the Governors of the States, on disbanding the army. Ibid. 439, 451. [185] None of the documents, connected with the Address to the People of the United States, issued by Congress in 1783, discussed the question as one of direct interest and advantage, except Hamilton's answer to the objections of Rhode Island. The Address itself appealed entirely to considerations of honor, justice, and good faith. Hamilton's paper, however, showed with great perspicacity, that the proposed impost would not be unfavorable to commerce, but the contrary; that it would not diminish the profits of the merchant, being too moderate in amount to discourage the consumption of imported goods, and therefore that it would not diminish the extent of importations; but that, even if it had this tendency, it was a tendency in the right direction, because it would lessen the proportion of imports to exports, and incline the balance in favor of the country. But the great question of yielding the control of foreign commerce to the Union, _for the sake of uniformity of regulation_, was not touched in any of these papers. The time for it had not arrived. [186] See note at the end of this chapter. [187] See note on page 194. [188] As it was, the approach of peace had reduced the attendance upon Congress below the constitutional number of States necessary to ratify the treaty, when it was received. On the 23d of December, 1783, a resolve was passed, "That letters be immediately despatched to the executives of New Hampshire, Connecticut, New York, New Jersey, South Carolina, and Georgia, informing them that the safety, honor, and good faith of the United States require the immediate attendance of their delegates in Congress; that there have not been during the sitting of Congress at this place [Annapolis] more than seven States represented, namely, Massachusetts, Rhode Island, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina, and most of those by only two delegates; and that the ratification of the definitive treaty, and several other matters, of great national concern, are now pending before Congress, which require the utmost despatch, and to which the assent of at least nine States is necessary." (Journals, IX. 12.) CHAPTER III. 1781-1783. OPINIONS AND EFFORTS OF WASHINGTON AND OF HAMILTON.--DECLINE OF THE CONFEDERATION. The proposal of the revenue system went forth to the country, although not in immediate connection, yet nearly at the same time, with those comprehensive and weighty counsels which Washington addressed to the States, when the great object for which he had entered the service of his country had been accomplished, and he was about to return to a private station. His relations to the people of this country had been peculiar. He had been, not only the leader of their armies, but, in a great degree, their civil counsellor; for although he had rarely, if ever, gone out of the province of his command to give shape or direction to constitutional changes, yet the whole circumstances of that command had constantly placed him in contact with the governments of the States, as well as with the Congress; and he had often been obliged to interpose the influence of his own character and opinions with all of them, in order that the civil machine might not wholly cease to move. At the moment when he was about to lay aside the sword, he saw very clearly that there were certain principles of conduct which must be called into action in the States, and among the people of the States, for the preservation of the Union. He, and he alone, could address to them with effect the requisite words of admonition, and point out the course of safety and success. This great service, the last act of his revolutionary official life, was performed with all the truth and wisdom of his character, before he proceeded to resign into the hands of Congress the power which he had held so long, and which he now surrendered with a virtue, a dignity, and a sincerity, with which no such power has ever been laid down by any of the leaders of revolutions whom the world has seen. His object in this Address was not so much to urge the adoption of particular measures, as to inculcate principles which he believed to be essential to the welfare of the country. So clearly, however, did it appear to him, that the honor and independence of the country were involved in the adoption of the revenue system which Congress had recommended, that he did not refrain from urging it as the sole means by which a national bankruptcy could be averted, before any different plan could be proposed and adopted. But how far, at this time, any other or further plans, for the formation of a better constitution, had been formed, or how far any one perceived both the vicious principle of the Confederation and the means of substituting for it another and more efficient power, we can judge only by the published writings of the Revolutionary statesmen. It is quite certain that at this period Washington saw the defects of the Confederation, as he had seen them clearly, and suffered under them, from the beginning. He saw that in the powers of the States, which far exceeded those of the Continental Congress, lay the source of all the perplexities which he had experienced in the course of the war, and of almost the whole of the difficulties and distresses of the army; and that to form a new constitution, which would give consistency, stability, and dignity to the Union, was the great problem of the time. He saw, also, that the honor and true interest of this country were involved in the development of continental power; that local and State politics were destined to interfere with the establishment of any more liberal and extensive plan of government, which the circumstances of the country required, as they had perpetually weakened the bond by which the Union had thus far been held together; and that such local influences would make these States the sport of European policy. He predicted, moreover, that the country would reach, if it reached at all, some system of sufficient capabilities, only through mistakes and disasters, and through an experience purchased at the price of further difficulties and distress. Such were his general views, at the close of the war.[189] But there was one man in the country who had looked more deeply still into its wants, and who had formed in his enlarged and comprehensive mind the clearest views of the means necessary to meet them, even before the Confederation had been practically tried. A reorganization of the government had engaged the attention of Hamilton, as early as 1780; and, with his characteristic penetration and power, he saw and suggested what should be the remedy. He entertained the opinion, at this time, as he had always entertained it, that the discretionary powers originally vested in Congress for the safety of the States, and implied in the circumstances and objects of their assembling, were fully competent to the public exigencies. But their practice, from the time of the Declaration of Independence through all the period that preceded the establishment of the Confederation, had accustomed the country to doubts of their original authority, and had at last amounted to a surrender of the ground from which they might have exercised it. No remedy, therefore, remained, applicable to the circumstances, and capable of rescuing the affairs of the country from their deplorable situation, but to vest in Congress, expressly and by a direct grant, the powers necessary to constitute an efficient government and a solid, coercive union. The project then before the country, in the Articles of Confederation, had been designed to accomplish what the revolutionary government had failed to do. But it was manifestly destined to fail in its turn; for it left an uncontrollable sovereignty in the States, capable of defeating the beneficial exercise of the very powers which it undertook to confer upon Congress. It made the army, not a unit, formed and organized by a central and supreme authority, and looking up to that authority alone, but a collection of several armies, raised by the several States. It gave to the State legislatures the effective power of the purse, by withholding all certain revenues from Congress. It proposed to introduce no method and energy of administration; and without an executive, it left every detail of government to be managed by a deliberative body, whose constitution rendered it fit for none but legislative functions. Under these circumstances, it was Hamilton's advice, before the Confederation took effect, that Congress should plainly, frankly, and unanimously confess to the States their inability to carry on the contest with Great Britain, without more ample powers than those which they had for some time exercised, or those which they could exercise under the Confederation; and that a convention of all the States be immediately assembled, with full authority to agree upon a different system. He suggested that a complete sovereignty should be vested in Congress, except as to that part of internal police which relates to the rights of property and life among individuals, and to raising money by internal taxes, which he admitted should be regulated by the State legislatures. But in all that relates to war, peace, trade, and finance, he maintained that the sovereignty of Congress should be complete; that it should have the entire management of foreign affairs, and of raising and officering armies and navies; that it should have the entire regulation of trade, determining with what countries it should be carried on, laying prohibitions and duties, and granting bounties and premiums; that it should have certain perpetual revenues of an internal character, in specific taxes; that it should be authorized to institute admiralty courts, coin money, establish banks, appropriate funds, and make alliances offensive and defensive, and treaties of commerce. He recommended also that Congress should immediately organize executive departments of foreign affairs, war, marine, finance, and trade, with great officers of state at the head of each of them.[190] Hamilton's entry into Congress in 1782 marks the commencement of his public efforts to develop the idea of a general government, whose organs should act directly, and without the intervention of any State machinery. He first publicly propounded this idea in the paper which he prepared, as chairman of a committee, to be addressed to the legislature of Rhode Island, in answer to the objections of that State to the revenue system proposed in 1781. One of these objections was, that the plan proposed to introduce into the State officers unknown and unaccountable to the State itself, and therefore that it was against its constitution. From the prevalence of this notion, we may see how difficult it was to create the idea of a national sovereignty, that would consist with the sovereignty of the States, and would work in its appropriate sphere harmoniously with the State institutions, because directed to a different class of objects. The nature of a federal constitution was little understood. It was apparent that the exercise of its powers must affect the internal police of its component members, to some extent; but it was not well understood that political sovereignty is capable of partition, according to the character of its subjects, so that powers of one class may be imparted to a federal, and powers of another class remain in a State constitution, without destroying the sovereignty of the latter. Hamilton presented this view, and at the same time pointed out, that, unless the constitution of a State expressly prohibited its legislature from granting to the federal government new power to appoint officers for a special purpose, to act within the State itself, it was competent to the legislative authority of the State to communicate such power, just as it was competent to it originally to enter into the Confederation.[191] In the same paper, also, he urged the necessity of vesting the appointment of the collectors of the proposed revenue in the general government, because it was designed as a security to creditors, and must therefore be general in its principle and dependent on a single will, and not on thirteen different authorities. This was the earliest suggestion of the principle, that, in exercising its powers, the federal government ought to act directly, through agents of its own appointment, and thus be independent of State negligence or control. When the debate came on in January, 1783, upon the new project of a revenue system, he again urged the necessity of strengthening the federal government, through the influence of officers deriving their appointments directly from Congress;--a suggestion that was received at the moment with pleasure by the opponents of the scheme, because it seemed to disclose a motive calculated to touch the jealousy rather than to propitiate the favor of the States. But the temporary expedients of the moment always pass away. The great ideas of a statesman like Hamilton, earnestly bent on the discovery and inculcation of truth, do not pass away. Wiser than those by whom he was surrounded, with a deeper knowledge of the science of government and the wants of the country than all of them, and constantly enunciating principles which extended far beyond the temporizing policy of the hour, the smiles of his opponents only prove to posterity how far he was in advance of them.[192] The efforts of Hamilton to effect a change in the rule of the Confederation, as to the ratio of contribution by the States to the treasury of the Union, also evince both the defects of the existing government and the foresight with which he would have obviated them, if he could have been sustained. The rule of the Confederation required that the general treasury should be supplied by the several States in proportion to the value of all lands within each State, granted or surveyed, with the buildings and improvements thereon, to be estimated according to such mode as Congress should from time to time direct and appoint; the taxes for paying such proportion to be laid and levied by the State legislatures, within the time fixed by Congress. But Congress had never appointed any mode of ascertaining the valuation of lands within the States. The first requisition called for after the Confederation took effect was apportioned among the several States without any valuation,--provision being made by which each State was to receive interest on its payments, as far as they exceeded what might afterwards be ascertained to be its just proportion, when the valuation should have been made.[193] At the outset, therefore, a practical inequality was established, which gave rise to complaints and jealousies between the States, and increased the disposition to withhold compliance with the requisitions. The dangerous crisis in the internal affairs of the country which attended the approach of peace, had arrived in the winter and spring of 1783, and nothing had ever been done to carry out the rule of the Confederation, by fixing upon a mode of valuation. When the discussion of the new measures for sustaining the public credit came on, three courses presented themselves, with regard to this part of the subject;--either, first, to change the principle of the Confederation entirely; or, secondly, to carry it out by fixing a mode of valuation, at once; or, thirdly, to postpone the attempt to carry it out, until a better mode could be devised than the existing state of the country then permitted. Hamilton's preference was for the first of these courses, as the one that admitted of the application of those principles of government which he was endeavoring to introduce into the federal system; for he saw that in the theory of the Confederation there was an inherent inequality, which would constantly increase in practice, and which must either be removed, or destroy the Union. He maintained, that, where there are considerable differences in the relative wealth of different communities, the proportion of those differences can never be ascertained by any common measure; that the actual wealth of a country, or its ability to pay taxes, depends on an endless variety of circumstances, physical and moral, and cannot be measured by any one general representative, as _land_, or _numbers_; and therefore that the assumption of such a general representative, by whatever mode its local value might be ascertained, would work inevitable inequality. In his view, the only possible way of making the States contribute to the general treasury in an equal proportion to their means, was by general taxes imposed under continental authority; and it is a striking proof of the comprehensive sagacity with which he looked forward, that, while he admitted that this mode would, for a time, produce material inequalities, he foresaw that balancing of interests which would arise in a continental legislation, and would relieve the hardships of one tax in a particular State by the lighter pressure of another bearing with proportional weight in some other part of the Confederacy.[194] Accordingly, after an attempt to postpone the consideration of a mode of carrying out the Confederation, he made an effort to have its principle changed, by substituting specific taxes on land and houses, to be collected and appropriated, as well as the duties, under the authority of the United States, by officers to be nominated by Congress, and approved by the State in which they were to exercise their functions, but accountable to and removable by Congress.[195] These ideas, however, as he himself saw, were not agreeable to the spirit of the times, and his plan was rejected. After many fruitless projects had been suggested and discussed, for making the valuation required by the Confederation,--some of them proposing that it should be done by commissioners appointed by the United States, and some by commissioners appointed by the States,--it was determined to propose no other change in the principle of making requisitions on the States, than to substitute population in the place of land, as the rule of proportion.[196] Equally extensive and important were his views on the subject of a peace establishment, for which he saw the necessity of providing, as the time approached when the Confederation would necessarily be tested as a government for the purposes of peace. To adapt a constitution, whose principal powers were originally designed to be exercised in a state of war, to a state of peace, for which it possessed but few powers, and those not clearly defined, was a problem in the science of government of a novel character. It might prove to be an impossible task; for on applying the constitutional provisions to the real wants and necessities of the country, it might turn out that the Confederation was in some respects destitute of the capacity to provide for them; and in undertaking to carry out its actual and sufficient powers, which had never hitherto been exercised, opposition might spring up, from State jealousy and local policy, which, in the real weakness of the federal government, would be as effectual a barrier as the want of constitutional authority. Still the effort was to be made; and Hamilton approached the subject with all the sagacity and statesmanship for which he was so distinguished. He saw that the Confederation contained provisions which looked to the continuance of the Union after the war had terminated, and that these provisions required practical application, through a machinery which had never been even framed. The Articles of Confederation vested in Congress the exclusive management of foreign relations; but the department of foreign affairs had never been properly organized. They also gave to Congress the exclusive regulation of trade and intercourse with the Indian nations; but no department of Indian affairs had been established with properly defined powers and duties. Nothing had been done to carry out the provision for fixing the standard of weights and measures throughout the United States, or to regulate the alloy and value of coin. Above all, the great question of means, military and naval, for the external and internal defence of the country during peace, for the preservation of tranquillity, the protection of commerce, the fulfilment of treaty stipulations, and the maintenance of the authority of the United States, had not been so much as touched. To regulate these important subjects was the design of a committee, at the head of which Hamilton was placed; and his earliest attention was directed to the most serious and difficult of them,--the provision for a peace establishment of military and naval forces.[197] The question whether the United States could constitutionally maintain an army and navy, in time of peace, was, under the Articles of Confederation, not free from difficulty; but it became of imminent practical importance, under the treaty of peace. That treaty provided for an immediate withdrawal of the British forces from all posts and fortifications within the United States; and it became at once an important question, whether these posts and fortifications--especially those within certain districts, the jurisdiction and property of which had not been constitutionally ascertained--should be garrisoned by troops of the United States, or of the States within which they were situated. There was also territory appertaining to the United States, not within the original claim of the United States. The whole of the Western frontier required defence. The navigation of the Mississippi and the lakes, and the rights of the fisheries and of foreign commerce, all belonging to the United States, and depending on the laws of nations and treaty stipulations, demanded the joint protection of the Union, and could not with propriety be left to the separate establishments of the States. But the Articles of Confederation contained no express provision for the establishment and maintenance of any military and naval forces during peace. They empowered the United States, generally, (and without mention of peace or war,) to build and equip a navy, and to agree upon the number of land forces to be raised, and to call upon the States to furnish their quotas. But they also declared that no vessels of war should be kept up by any State in time of peace, except such number only as should be deemed necessary by Congress for the defence of such State or its trade; and that no body of forces should be kept up by any State in time of peace, except such number only as Congress should deem requisite to garrison the posts necessary for the defence of such State. This provision might be construed to imply, that, in time of peace, the general defence was to be provided for by the forces of each State, and, in time of war, by those of the Union. But it was the opinion of Hamilton, that the restrictions on the powers of the States, with regard to maintaining forces during peace, could not with propriety be said to contain any directions to the United States, or to contravene the positive power vested in the latter to raise both sea and land forces, without mention of peace or war. He strengthened this view by the capital inconvenience of the contrary construction, and by the manifest necessities of the country, which could only be provided for by the power of the Union. If the United States could have neither army nor navy, until war had been declared, they would be obliged to begin to create both at the very moment when both were needed in actual hostilities; and, if the States were to be intrusted with the defence of the country in time of peace, that defence would be left to thirteen different armies and navies, under the direction of as many different governments.[198] He contemplated, therefore, the formation of a peace establishment, to consist of certain corps of infantry, artillery, cavalry, engineers, and dragoons;[199] a general survey, preparatory to the adoption of a general system of land fortifications; the establishment of arsenals and magazines, and the erection of founderies and manufactories of arms. He advised the establishment of ports and maritime fortifications, and the formation and construction of a navy; and his report embraced also a plan for classing and disciplining the militia.[200] In all this design, Hamilton pursued the purpose, which he had long entertained, of strengthening and consolidating the Union, and guarding against its dissolution, by providing the means necessary for its defence. Federal, rather than State provision for the defence of every part of the Confederacy, in peace as well as in war, seemed to him essential. He thought, that the general government should have exclusively the power of the sword, and that each State should have no forces but its militia.[201] But his great plans were arrested, partly in consequence of the doubts entertained on the point of constitutional power, and partly by reason of the great falling off of the attendance of members in Congress. At the very time when this important subject was under consideration, Congress were driven from Philadelphia, by the mutiny of a handful of men, whom they could not curb at the moment without the aid of the local authorities, and that aid was not promptly and efficiently given.[202] Convinced, at length, that no temporary expedients would meet the wants of the country, and that a radical reform of its constitution could alone preserve the Union from dissolution, Hamilton surveyed the Confederation in all its parts, and determined to lay before the country its deep defects, with a view to the establishment of a government with proper departments and adequate powers. In this examination, he applied to the Confederation the approved maxims of free government, which had been made familiar in the formation of the State constitutions, and which point to the distinct separation of the legislative, executive, and judicial functions. The Confederation vested all these powers in a single body, and thus violated the principles on which the government of nearly every State in the Union was founded. It had no federal judicature, to take cognizance of matters of general concern, and especially of those in which foreign nations and their subjects were concerned; and thus national treaties, the national faith, and the public tranquillity were exposed to the conflict of local regulations against the powers vested in the Union. It gave to Congress the power of ascertaining and appropriating the sums necessary for the public expenses, but withheld all control over either the imposition or collection of the taxes by which they were to be raised, and thus made the inclinations, not the abilities, of the respective States, the criterion of their contributions to the common expenses of the Union. It authorized Congress to borrow money, or emit bills, on the credit of the United States, without the power of providing funds to secure the repayment of the money, or the redemption of the bills emitted. It made no proper or competent provision for interior or exterior defence; for interior defence, because it allowed the individual States to appoint all regimental officers of the land forces, and to raise the men in their own way, while at the same time an ambiguity rendered it uncertain whether the defence of the country in time of peace was not left to the particular States, both by sea and land;--for exterior defence, because it authorized Congress to build and equip a navy, without providing any compulsory means of manning it. It failed to vest in the United States a general superintendence of trade, equally necessary both with a view to revenue and regulation. It required the assent of nine States in Congress to matters of principal importance, and of seven to all others except adjournments from day to day, and thus subjected the sense of a majority of the people of the United States to that of a minority, by putting it in the power of a small combination to defeat the most necessary measures. Finally, it vested in the federal government the sole direction of the interests of the United States in their intercourse with foreign nations, without empowering it to pass _all general laws_ in aid and support of the laws of nations; thus exposing the faith, reputation, and peace of the country to the irregular action of the particular States.[203] Having thus fully analyzed for himself the nature of the existing constitution, Hamilton proposed to himself the undertaking of inducing Congress freely and frankly to inform the country of its imperfections, which made it impossible to conduct the public affairs with honor to themselves and advantage to the Union; and to recommend to the several States to appoint a convention, with full powers to revise the Confederation, and to adopt and propose such alterations as might appear to be necessary, which should be finally approved or rejected by the States.[204] But he was surrounded by men, who were not equal to the great enterprise of guiding and enlightening public sentiment. He was in advance of the time, and far in advance of the men of the time. He experienced the fate of all statesmen, in the like position, whose ideas have had to wait the slow development of events, to bring them to the popular comprehension and assent. He saw that his plans could not be adopted; and he passed out of Congress to the pursuits of private life, recording upon them his conviction, that their public proposal would have failed for want of support.[205] There was in fact a manifest indisposition in Congress to propose any considerable change in the principle of the government. Hence, nothing but the revenue system, with a change in the rule by which a partition of the common burdens was to be made, was publicly proposed. Although this system was a great improvement upon that of the Confederation, it related simply to revenue, in regard to which it proposed a reform, not of the principle of the government, but of the mode of operation of the old system; for it embraced only a specific pledge by the States of certain duties for a limited term, and not a grant of the unlimited power of levying duties at pleasure. There was confessedly a departure from the strict maxims of national credit, by not making the revenue coextensive with its object, and by not placing its collection in every respect under the authority charged with the management and payment of the debt which it was designed to meet.[206] These relaxations were a sacrifice to the jealousies of the States; and they show that the time had not come for a change from a mere federative union to a constitutional government, founded on the popular will, and therefore acting by an energy and volition of its own. The temper of the time was wholly unfavorable to such a change. The early enthusiasm with which the nation had rushed into the conflict with England, guided by a common impulse and animated by a national spirit, had given place to calculations of local interest and advantage; and the principle of the Confederation was tenaciously adhered to, while the events which accompanied and followed the peace were rapidly displaying its radical incapacity. The formation of the State governments, and the consequent growth and importance of State interests, which came into existence with the Confederation, and the fact that the Confederation was itself an actual diminution of the previous powers of the Union, may be considered the chief causes of the decline of a national spirit. That spirit was destined to a still further decay, until the conflict of State against State, and of section against section, by shaking the government to its foundation, should reveal both the necessity for a national sovereignty and the means by which it could be called into life. As a consequence and proof of the decline of national power, it is worthy of observation, that, at the close of the year 1783, Congress had practically dwindled to a feeble junto of about twenty persons, exercising the various powers of the government, but without the dignity and safety of a local habitation. Migrating from city to city and from State to State, unable to agree upon a seat of government, from jealousy and sectional policy; now assembling in the capitol of a State, and now in the halls of a college; at all times dependent upon the protection and even the countenance of local authorities, and without the presence of any of the great and powerful minds who led the earlier counsels of the country, this body presented a not inadequate type of the decaying powers of the Union.[207] At no time in the history of the Confederation, had all the States been represented at once; and the return of peace seemed likely to reduce the entire machinery of the government to a state of complete inaction.[208] The Confederation, at the close of the war, is found to have accomplished much, and also to have failed to accomplish much more. It had effected the cession of the public lands to the United States; for although that cession was not completed until after the peace, still the arch on which the Union was ultimately to rest for whatever of safety and perpetuity remained for it through the four following years, was deposited in its place, when the Confederation was established. It had also placed the United States, as a nation, in a position to contract some alliances with foreign powers. It had finished the war; it had achieved the independence of the nation; and had given peace to the country. It had thus demonstrated the value of the Union, although its defective construction aided the development of tendencies which weakened and undermined its strength. But its imperfect performance of the great tasks to which it had been called, displayed its inherent defects. It had often been unequal to the purpose of effectually drawing forth the resources of its members for the common welfare and defence. It had often wanted an army adequate to the protection and proportioned to the abilities of the country. It had, therefore, seen important posts reduced, others imminently endangered, and whole States and large parts of others overrun by small bodies of the enemy;--had been destitute of sufficient means of feeding, clothing, paying, and appointing its troops, and had thus exposed them to sufferings for which history scarcely affords a parallel. It had been compelled to make the administration of its affairs a succession of temporary expedients, inconsistent with order, economy, energy, or a scrupulous adherence to public engagements. It found itself, at the close of the war, without any certain means of doing justice to those who had been the principal supporters of the Union;--to an army which had bravely fought, and patiently suffered,--to citizens and to foreigners, who had cheerfully lent their money,--and to others who had contributed property and personal service to the common cause. It was obliged to rely, for the last hope of doing that justice, on the precarious concurrence of thirteen distinct legislatures, the dissent of either of which might defeat the plan, and leave the States, at an early period of their existence, involved in all the disgrace and mischiefs of violated faith and national bankruptcy.[209] While, therefore, the United States emerged from the war, which for seven long years had wasted the energies and drained the resources of the people, with national independence, dark and portentous clouds gathered about the dawn of peace, as the future opened before them. The past had been crowned with victory;--dearly bought, but not at too dear a price, for it brought with it the vast boon of civil liberty. But the dangers and embarrassments through which that victory had been achieved made it apparent that the government of the country was unequal to its protection and prosperity. That government was now called to assume the great duties of peace, without the acknowledged power of maintaining either an army or a navy, and without the means of combining and directing the forces and wills of the several parts to a general end; without the least control over commerce; without the power to fulfil a treaty; without laws acting upon individuals; and with no mode of enforcing its own will, but by coercing a delinquent State to its federal obligations by force of arms. How it met the great demands upon its energy and durability which its new duties involved, we are now to inquire. FOOTNOTES: [189] Letter to Hamilton, March 31, 1783. Writings, VIII. 409. Letter to Lafayette, April 5, 1783. Ibid. 411. Address to the States, June 8, 1783. Ibid. 439. [190] These suggestions were made by Hamilton, in a letter of great ability, written in 1780, while he was still in the army, to James Duane, a member of Congress from New York. It was not published until it appeared in his Life, I. 284. At its close, he says: "I am persuaded a solid confederation, a permanent army, a reasonable prospect of subsisting it, would give us treble consideration in Europe, and produce a peace this winter. _If a convention is called, the minds of all the States and the people ought to be prepared to receive its determinations by sensible and popular writings_, which should conform to the views of Congress. There are epochs in human affairs when _novelty_ is useful. If a general opinion prevails that the old way is bad, whether true or false, and this obstructs or relaxes the operations of the public service, a change is necessary, if it be but for the sake of change. This is exactly the case now. 'T is an universal sentiment, that our present system is a bad one, and that things do not go right on this account. The measure of a convention would revive the hopes of the people, and give a new direction to their passions, which may be improved in carrying points of substantial utility. The Eastern States have already pointed out this mode to Congress: they ought to take the hint, and anticipate the others." What is here said of the action of the Eastern States probably refers, not to any suggestion of a convention to revise the powers of the general government, but to a convention of committees of the Eastern States, which first assembled at Hartford, and afterwards at Boston, in November, 1779, and in August, 1780, _for regulating the prices of commodities_. Journals of Congress, V. 406; VI. 271, 331, 392. But the writer may have had in his mind the convention which had just assembled in Massachusetts to form the constitution of that State. I am aware of no public proposal, as early as 1780, of a general convention to remodel the Confederacy. [191] "It is not to be presumed," he said, "that the constitution of any State means to define and fix the precise numbers and descriptions of all officers to be permitted in the State, excluding the creation of any new ones, whatever might be the necessity derived from that variety of circumstances incident to all political institutions. The legislature must always have a discretionary power of appointing officers, not expressly known to the constitution, and this power will include that of authorizing the federal government to make the appointments in cases where the general welfare may require it. The denial of this would prove too much; to wit, that the power given by the Confederation to Congress, to appoint all officers in the post-office, was illegal and unconstitutional. The doctrine advanced by Rhode Island would perhaps prove also that the federal government ought to have the appointment of no internal officers whatever; a position that would defeat all the provisions of the Confederation, and all the purposes of the union. The truth is, that no federal constitution can exist without powers that in their exercise effect the internal police of the component members. It is equally true, that no government can exist without a right to appoint officers for those purposes which proceed from, and concentre in, itself; and therefore the Confederation has expressly declared, that Congress shall have authority to appoint all such 'civil officers as may be necessary for managing the general affairs of the United States under their direction.' All that can be required is, that the federal government confine its appointments to such as it is empowered to make by the original act of union, or by the subsequent consent of the parties; unless there should be express words of exclusion in the constitution of a State, there can be no reason to doubt that it is within the compass of legislative discretion to communicate that authority. The propriety of doing it upon the present occasion, is founded on substantial reasons. The measure proposed is a measure of necessity. Repeated experiments have shown, that the revenue to be raised within these States is altogether inadequate to the public wants. The deficiency can only be supplied by loans. Our applications to the foreign powers on whose friendship we depend, have had a success far short of our necessities. The next resource is to borrow from individuals. These will neither be actuated by generosity nor reasons of state. 'Tis to their interest alone we must appeal. To conciliate this, we must not only stipulate a proper compensation for what they lend, but we must give security for the performance. We must pledge an ascertained fund, simple and productive in its nature, general in its principle, and at the disposal of a single will. There can be little confidence in a security under the constant revisal of thirteen different deliberatives. It must, once for all, be defined and established on the faith of the States, solemnly pledged to each other, and not revocable by any without a breach of the general compact. 'Tis by such expedients that nations whose resources are understood, whose reputations and governments are erected on the foundation of ages, are enabled to obtain a solid and extensive credit. Would it be reasonable in us to hope for more easy terms, who have so recently assumed our rank among the nations? Is it not to be expected, that individuals will be cautious in lending their money to a people in our circumstances, and that they will at least require the best security we can give? We have an enemy vigilant, intriguing, well acquainted with our defects and embarrassments. We may expect that he will make every effort to instil diffidences into individuals, and in the present posture of our internal affairs he will have too plausible ground on which to tread. Our necessities have obliged us to embrace measures, with respect to our public credit, calculated to inspire distrust. The prepossessions on this article must naturally be against us, and it is therefore indispensable we should endeavor to remove them, by such means as will be the most obvious and striking. It was with these views Congress determined on a general fund; and the one they have recommended must, upon a thorough examination, appear to have fewer inconveniences than any other. It has been remarked as an essential part of the plan, that the fund should depend on a single will. This will not be the case, unless the collection, as well as the appropriation, is under the control of the United States; for it is evident, that, after the duty is agreed upon, it may, in a great measure, be defeated by an ineffectual mode of levying it. The United States have a common interest in a uniform and equally energetic collection; and not only policy, but justice to all the parts of the Union, designates the utility of lodging the power of making it where the interest is common. Without this, it might in reality operate as a very unequal tax." Journals of Congress, VIII. 153. [192] He said, as an additional reason for the revenue being collected by officers under the appointment of Congress, that, "as the energy of the federal government was evidently short of the degree necessary for pervading and uniting the States, it was expedient to introduce the influence of officers deriving their emoluments from, and consequently interested in supporting the power of Congress." Upon this Mr. Madison observes: "This remark was imprudent, and injurious to the cause it was intended to serve. This influence was the very source of jealousy which rendered the States averse to a revenue under collection, as well as appropriation, of Congress. All the members of Congress who concurred in any degree, with the States in this jealousy, smiled at the disclosure. Mr. Bland, and still more Mr. Lee, who were of this number, took notice, in private conversation, that Mr. Hamilton had let out the secret." Elliot's Debates, I. 35. [193] March 18 and 23, 1781. Journals, VII. 56, 67. [194] Life of Hamilton, II. 50-57. [195] March 20, 1783. Journals, VIII. 157-159. [196] The census was to be of "the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes, in each State; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint." When the Articles of Confederation were framed and adopted in Congress, a valuation of land as the rule of proportion was adopted instead of numbers of inhabitants, in consequence of the impossibility of compromising the different ideas of the Eastern and Southern States as to the rate at which slaves should be counted; the Eastern States of course wishing to have them counted in a near ratio to the whites, and the Southern States wishing to diminish that ratio. Numbers would have been preferred by the Southern States to land, if half their slaves only could have been taken; but the Eastern States were opposed to this estimate. (Elliot's Debates, I. 79.) In 1783, when it was proposed to change the rule of proportion from land to numbers, the first compromise suggested (by Mr. Wolcott of Connecticut) was to include only such slaves as were between the ages of sixteen and sixty; this was found to be impracticable; and it was agreed on all sides, that, instead of fixing the proportion by ages, it would be best to fix it in absolute numbers, and the rate of three fifths was agreed upon. (Ibid. 81, 82.) [197] Life of Hamilton, II. 204-212. [198] Ibid. [199] He proposed that the States should transfer to Congress the right to appoint the regimental officers, and that the men should be enlisted under continental direction. [200] That the subject of a peace establishment originated with Hamilton is certain, from the fact that early in April, soon after the appointment of the committee, he wrote to General Washington, wishing to know his sentiments at large on such institutions of every kind for the interior defence of the States as might be best adapted to their circumstances. (Writings of Washington, VIII. 417.) Washington wrote to all the principal officers of the army then in camp, for their views, and from the memoirs which they presented to him an important document was compiled, which was forwarded by him to the committee of Congress. In one of these memoirs Colonel Pickering suggested the establishment of a military academy at West Point. "If any thing," he said, "like a military academy in America be practicable at this time, it must be grounded on the permanent military establishment of our frontier posts and arsenals, and the wants of the States, separately, of officers to command the defences of their sea-coasts. On this principle, it might be expedient to establish a military school, or academy, at West Point. And that a competent number of young gentlemen might be induced to become students, it might be made a rule, that vacancies in the standing regiments should be supplied from thence; those few instances excepted where it would be just to promote a very meritorious sergeant. For this end, the number which shall be judged requisite to supply vacancies in the standing regiment might be fixed, and that of the students, who are admitted with an exception of filling them, limited accordingly. They might be allowed subsistence at the public expense. If any other youth desired to pursue the same studies at the military academy, they might be admitted, only subsisting themselves. Those students should be instructed in what is usually called military discipline, tactics, and the theory and practice of fortification and gunnery. The commandant and one or two other officers of the standing regiment, and the engineers, making West Point their general residence, would be the masters of the academy; and the inspector-general superintend the whole." (Ibid.) The subject of a peace establishment was made one of the four principal topics on which Washington afterwards enlarged in his circular letter to the States, in June; but his suggestions related chiefly to a uniform organization of the militia throughout the States. He subsequently had several conferences with the committee of Congress, on the whole subject, but nothing was done. (Vide note, infra.) [201] Life of Hamilton, II. 214-219. The State of New York precipitated the constitutional question, by demanding that the Western posts within her limits should be garrisoned by troops of her own, and by instructing her delegates in Congress to obtain a declaration, conformably to the sixth article of the Confederation, of the number of troops necessary for that purpose. Hamilton forbore to press this application while the general subject of a peace establishment was under consideration. But the doubts that arose as to the constitutional power of Congress to raise an army for the purposes of peace, and the urgency of the case, made it necessary to adopt a temporary measure with regard to the frontier posts, and to direct the commander-in-chief to garrison them with a part of the troops of the United States which had enlisted for three years. This was ordered on the 12th of May. Soon after, the mutiny of a portion of the new levies of the Pennsylvania line occurred, which drove Congress from Philadelphia to Princeton, on the 21st of June. At Princeton, they remained during the residue of the year, but with diminished numbers and often without a constitutional quorum of States. In September, General Washington wrote to Governor Clinton: "Congress have come to no determination yet respecting a peace establishment, nor am I able to say when they will. I have lately had a conference with a committee on this subject, and have reiterated my former opinions: but it appears to me, that there is not a sufficient representation to discuss great national points; nor do I believe there will be, while that honorable body continue their sessions at this place. The want of accommodation, added to a disinclination in the Southern delegates to be farther removed than they formerly were from the centre of the empire, and an aversion in the others to give up what they conceive to be a point gained by the late retreat to this place, keep matters in an awkward situation, to the very great interruption of national concerns. Seven States, it seems, by the Articles of Confederation, must agree, before any place can be fixed upon for the seat of the federal government; and seven States, it is said, never will agree; consequently, as Congress came here, here they are to remain, to the dissatisfaction of the majority and a great let to business, having none of the public offices about them, nor any place to accommodate them, if they were brought up; and the members, from this or some other cause, are eternally absent." [202] Mr. Madison has given the following account of this occurrence:--"On the 19th of June, Congress received information from the Executive Council of Pennsylvania, that eighty soldiers, who would probably be followed by others, were on the way from Lancaster to Philadelphia, in spite of the expostulations of their officers, declaring that they would proceed to the seat of Congress and demand justice, and intimating designs against the Bank. A committee, of which Colonel Hamilton was chairman, was appointed to confer with the executive of Pennsylvania, and to take such measures as they should find necessary. After a conference, the committee reported that it was the opinion of the executive that the militia of Philadelphia would probably not be willing to take arms before they should be provoked by some actual outrage; that it would hazard the authority of government to make the attempt; and that it would be necessary to let the soldiers come into the city, if the officers who had gone out to meet them could not stop them. The next day the soldiers arrived in the city, led by their sergeants, and professing to have no other object than to obtain a settlement of accounts, which they supposed they had a better chance for at Philadelphia than at Lancaster. On the 21st, they were drawn up in the street before the State-House, where Congress were assembled. The Executive Council of the State, sitting under the same roof, was called on for the proper interposition. The President of the State (Dickinson) came in and explained the difficulty of bringing out the militia of the place for the suppression of the mutiny. He thought that, without some outrages on persons or property, the militia could not be relied on. General St. Clair, then in Philadelphia, was sent for, and desired to use his interposition, in order to prevail on the troops to return to the barracks. But his report gave no encouragement. In this posture of things, it was proposed by Mr. Izard that Congress should adjourn. Colonel Hamilton proposed that General St. Clair, in concert with the Executive Council of the State, should take order for terminating the mutiny. Mr. Reed moved that the General should endeavor to withdraw the mutineers, by assuring them of the disposition of Congress to do them justice. Nothing, however, was done. The soldiers remained in their position, occasionally uttering offensive words and pointing their muskets at the windows of the hall of Congress. At the usual hour of adjournment the members went out, without obstruction; and the soldiers retired to their barracks. In the evening Congress reassembled, and appointed a committee to confer anew with the executive of the State. This conference produced nothing but a repetition of the doubts concerning the disposition of the militia to act, unless some actual outrage were offered to persons or property, the insult to Congress not being deemed a sufficient provocation. On the 24th, the efforts of the State authority being despaired of, Congress were summoned by the President to meet at Trenton." (Elliot's Debates, I. 92-94.) The mutiny was afterwards suppressed by marching troops into Pennsylvania under Major-General Howe. (Journals, VIII. 281.) [203] Life of Hamilton, II. 230-237. [204] Life of Hamilton, II. 230-237. [205] Ibid. [206] See the Address to the States, accompanying the proposed revenue system, April 26, 1783, from the pen of Mr. Madison. Journals, VIII. 194-201. [207] The first Continental Congress was called to meet at Philadelphia, that being the nearest to the centre of the Union of any of the principal cities in the United States. Succeeding Congresses had been held there, with the exception of the period when the city was in the possession of the enemy, in the year 1777, until, on the 21st of June, 1783, in consequence of the mutiny of the soldiers, the President was authorized to summon the members to meet at Trenton, or Princeton, in New Jersey, "in order that further and more effectual measures may be taken for suppressing the present revolt, and maintaining the dignity and authority of the United States." On the 30th, Congress assembled at Princeton, in the halls of the college, which were tendered by its officers for their use. In August, a proposition was made to return to Philadelphia, and that, on the second Monday in October, Congress should meet at Annapolis, unless in the mean time it had been ordered otherwise. But this was not agreed to. A committee was then appointed (in September), "to consider what jurisdiction may be proper for Congress in the place of their permanent residence." This seems to have been followed by propositions from several of the States, from New York to Virginia inclusive, respecting a place for the permanent residence of Congress, although the Journal does not state what they were. A question was then taken (October 6), in which State buildings should be provided and erected for the residence of Congress, beginning with New Hampshire and proceeding with all the States in their order. Each State was negatived in its turn. The highest number of votes given (by States) were for New Jersey and Maryland, which had four votes each. A resolution was then carried, "that buildings for the use of Congress be erected on or near the banks of the Delaware, provided a suitable district can be procured on or near the banks of said river, for a federal town; and that the right of soil, and an exclusive or such jurisdiction as Congress may direct, shall be vested in the United States"; and a committee was appointed, to repair to the falls of the Delaware, to view the country, and report a proper district for this purpose. A variety of motions then followed, for the selection of a place of temporary residence, but none was adopted. On the 17th of October, a proposition was made by a delegate of Massachusetts (Mr. Gerry), to have buildings provided for the alternate residence of Congress in two places, with the idea of "securing the mutual confidence and affection of the States, and preserving the federal balance of power"; but the question was lost. Afterwards, the following resolution was agreed to: "Whereas, there is reason to expect that the providing buildings for the alternate residence of Congress in two places will be productive of the most salutary effects, by securing the mutual confidence and affections of the States, _Resolved_, That buildings be likewise erected, for the use of Congress, at or near the lower falls of the Potomac, or Georgetown, provided a suitable district on the banks of the river can be procured for a federal town, and the right of soil, and an exclusive jurisdiction, or such as Congress may direct, shall be vested in the United States; and that until the buildings to be erected on the banks of the Delaware and Potomac shall be prepared for the reception of Congress, their residence shall be alternately, at equal periods of not more than one year and not less than six months, in Trenton and Annapolis; and the President is hereby authorized and directed to adjourn Congress on the twelfth day of November next, to meet at Annapolis on the twenty-sixth day of the same month, for the despatch of public business." (Journals of Congress from June to November, 1783.) [208] Report of a committee appointed to devise means for procuring a full representation in Congress, made November 1, 1783. Journals, VIII. 480-482. [209] Hamilton's proposed Resolutions; Life, II. 230-237. BOOK III. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE PEACE OF 1783 TO THE FEDERAL CONVENTION OF 1787. CHAPTER I. JANUARY, 1784-MAY, 1787. DUTIES AND NECESSITIES OF CONGRESS.--REQUISITIONS ON THE STATES.--REVENUE SYSTEM OF 1783. The period which now claims our attention is that extending from the Peace of 1783 to the calling of the Convention which framed the Constitution, in 1787. It was a period full of dangers and difficulties. The destinies of the Union seemed to be left to all the hazards arising from a defective government and the illiberal and contracted policy of its members. Patriotism was generally thought to consist in adhesion to State interests, and a reluctance to intrust power to the organs of the nation. The national obligations were therefore disregarded; treaty stipulations remained unfulfilled; the great duty of justice failed to be discharged; rebellion raised a dangerous and nearly successful front; and the commerce of the country was exposed to the injurious policy of other nations, with no means of counteracting or escaping from its effects. At length, the people of the United States began to see danger after they had felt it, and the growth of sounder views and higher principles of public conduct gave to the friends of order, public faith, and national security a controlling influence in the country, and enabled the men, who had won for it the blessings of liberty, to establish for it a durable and sufficient government. Four years only elapsed, between the return of peace and the downfall of a government which had been framed with the hope and promise of perpetual duration;--an interval of time no longer than that during which the people of the United States are now accustomed to witness a change of their rulers, without injury to any principle or any form of their institutions. But this brief interval was full of suffering and peril. There are scarcely any evils or dangers, of a political nature, and springing from political and social causes, to which a free people can be exposed, which the people of the United States did not experience during this period. That these evils and dangers did not precipitate the country into civil war, and that the great undertaking of forming a new and constitutional government, by delegates of the people, could be entered upon and prosecuted, with the calmness, conciliation, and concession essential to its success, is owing partly to the fact that the country had scarcely recovered from the exhausting effects of the Revolutionary struggle; but mainly to the existence of a body of statesmen, formed during that struggle, and fitted by hard experience to build up the government. But before their efforts and their influences are explained, the period which developed the necessity for their interposition must be described. He who would know what the Constitution of the United States was designed to accomplish, must understand the circumstances out of which it arose. On the 3d of November, 1783, a new Congress, according to annual custom, was assembled at Annapolis, and attended by only fifteen members, from seven States. Two great acts awaited the attention of this assembly;--both of an interesting and important character, both of national concern. The one was the resignation of Washington; a solemnity which appealed to every feeling of national gratitude and pride, and which would seem to have demanded whatever of pomp and dignity and power the United States could display. The other was a legislative act, which was to give peace to the country, by the ratification of the Treaty. Several weeks passed on, and yet the attendance was not much increased. Washington's resignation was received, at a public audience of seven States, represented by about twenty delegates;[210] and on the same day letters were despatched to the other States, urging them, for the safety, honor, and good faith of the United States, to require the immediate attendance of their members.[211] It was not, however, until the 14th of January that the Treaty could be ratified by the constitutional number of nine States; and, when this took place, there were present but three-and-twenty members.[212] It should undoubtedly be considered, that, from the nature and form of the government, the delegates in Congress had in some sense an ambassadorial character, and were assembled as the representatives of sovereign States. But with whatever dignity, real or fictitious, they may be considered as having been clothed, the government itself was one that created a constant tendency to the neglect of its functions, and therefore produced great practical evils. The Articles of Confederation provided that delegates should be annually appointed by the States, to meet in Congress on the first Monday in November in every year; and although they also gave to Congress the power of adjournment for a recess, during which the government was to be devolved on a Committee of the States, they fixed no period for the termination of a session. While the war lasted, it had been both customary and necessary for the old Congress, and for its successors under the Confederation, to be perpetually in session; and this practice was continued after the peace, with very short intervals of Committees of the States, partly from habit, and partly in consequence of the reduction of the delegations to the lowest constitutional number. This rendered despatch impossible, by putting it in the power of a few members to withhold from important matters the constitutional concurrence of nine States. Without any reference to population by the Articles of Confederation, not less than two nor more than seven delegates were allowed to each State; and by casting the burden of maintaining its own delegates upon each State, they created a strong motive for preferring the smaller number, and often for not being represented at all. This motive became more active after the peace, when the immediate stimulus of hostilities was withdrawn; and it was at the same time accompanied, in most of the States, by a great jealousy of the powers of Congress, a disinclination to enlarge them, and a prevalent feeling that each State was sufficient unto itself for all the purposes of government.[213] The consequence was, that the Congress of the Confederation, from the ratification of the Treaty of Peace to the adoption of the Constitution, although entitled to ninety-one members, was seldom attended by one third of that number; and the state of the representation was sometimes so low, that one eighth of the whole number present could, under the constitutional rule, negative the most important measures.[214] Such was the government which was now called to provide for the payment of at least the interest on the public debts, and to procure the means for its own support; to carry out the Treaty of Peace, and secure to the country its advantages; to complete the cessions of the Western lands, and provide for their settlement and government; to guard the commerce of the country against the hostile policy of other nations; to secure to each State the forms and principles of a republican government; to extend and secure the relations of the country with foreign powers; and to preserve and perpetuate the Union. By tracing the history of its efforts and its failures with regard to these great objects, we may understand the principal causes which brought about the conviction on the part of the people of the United States, that another and a stronger government must take the place of the Confederation. It was ascertained in April, 1784, that a sum exceeding three millions of dollars would be wanted to pay the arrears of interest, and to meet the interest and current expenses of the public service for the year.[215] Two sources only could be looked to for this supply. It must either be obtained by requisitions on the States, according to the old rule of the Confederation, or from the new duties and taxes proposed by the revenue system of 1783. But that proposal was still under the consideration of the State legislatures; some of them having as yet acceded to the impost only, and others having decided neither on the impost nor on the supplementary taxes. Some time must therefore elapse before the final confirmation of this system, even if its final confirmation were probable; and, after it should have been confirmed, further time would be requisite to bring it into operation. It was quite clear, therefore, that other measures must be resorted to. Requisitions presented the sole resource. But in what mode were they to be made? The preceding Congress had offered two recommendations to the States on the subject of the rule of the Confederation, which directed that the quotas of the several States should be apportioned according to the value of their lands. The Congress of 1783, in order to give this rule a fair trial, had recommended to the States to make returns of their lands, buildings, and inhabitants;[216] but, apprehending that the insufficiency of the rule would immediately show itself, they had followed this recommendation with another, to change the basis of contribution from land to numbers of inhabitants.[217] Both of these propositions were still under the consideration of the State legislatures, and four States only had acceded to them.[218] A new requisition, therefore, if made at all, must be made under the old rule of the Confederation, and with entirely imperfect means of making it with justice and equality. It was found, however, that large arrears were still due from the States, of the old requisitions made during the war.[219] A new call upon them to pay one half of these arrears, deducting therefrom the amount of their payments to the close of the year, would, if complied with, produce a sum nearly sufficient for the wants of the government. This resource was accordingly tried.[220] In the year 1785, three millions, it was ascertained, would be required for the service of the year. A renewed call was made for the remaining unpaid moiety of the old requisition of eight millions, and for the whole of the old requisition of two millions; but, considering that the public faith required Congress to continue their annual demand for money, they issued a new requisition for three millions, and adjusted it according to the best information they could obtain.[221] In the year 1786, a sum of more than three millions was wanted for the current demands on the treasury, and a new requisition was made for it, under the old rule of the Confederation.[222] Two of the States, Rhode Island and New Jersey, thereupon passed acts, making their own paper currency receivable on all arrears of taxes due to the United States, and proposing to pay their quotas in such currency.[223] But the entire inadequacy of this source of supply to maintain the federal government, and to discharge the annual public engagements, had now become but too apparent. From the 1st of November, 1781, to the 1st of January, 1786, less than two and a half millions of dollars had been received from requisitions made during that period, amounting to more than ten millions.[224] For the last fourteen months of that interval, the average receipts from requisitions amounted to less than four hundred thousand dollars per annum, while the interest alone due on the foreign debt was more than half a million; and, in the course of each of the nine following years, the average sum of one million, annually, would become due by instalments on the principal of that debt.[225] In addition to this, the interest on the domestic debt; the security of the navigation and commerce of the country against the Barbary powers; the immediate protection of the people dwelling on the frontier from the savages; the establishment of military magazines in different parts of the Union, quite indispensable to the public safety; the maintenance of the federal government at home, and the support of the public servants abroad,--each and all depended upon the contribution of the States under the annual requisitions, and were each and all likely to be involved in a common failure and ruin.[226] There can be no doubt that the continuance of the practice of making requisitions, after the proposal of the revenue system of 1783, had some tendency to prevent the adoption of that system by the States. But there was no other alternative within the constitutional reach of Congress; and in the mean time, the revenue system, submitted as it necessarily was to the legislatures of thirteen different States, was, as far as it was assented to, embarrassed with the most discordant and irreconcilable provisions. It was ascertained in February, 1786, that seven of the States had granted the impost part of the system, in such a manner, that, if the other six States had made similar grants, the plan of the general impost might have been immediately put into operation.[227] Two of the other States had also granted the impost, but had embarrassed their grants with provisos, which suspended their operation until all the other States should have passed laws in full conformity with the whole system.[228] Two other States had fully acceded to the system in all its parts;[229] but four others had not decided in favor of any part of it.[230] No member of the Confederacy had, at this time, suggested to Congress any reasonable objection to the principles of the system; and the contradictory provisions by which their assent to it had been clogged, present a striking proof of the inherent difficulties of obtaining any important constitutional change from the legislatures of the States. The government was founded upon a principle, by which all its powers were derived from the States in their corporate capacities; in other words, it was a government created by, and deriving its authority from, the governments of the States. They alone could change the fundamental law of its organization; and they were actuated by such motives and jealousies, as rendered a unanimous assent to any change a great improbability. Still, the Congress of 1786 hoped that, by a clear and explicit declaration of the true position of the country, the requisite compliance of the States might be obtained. They accordingly made known, in the most solemn manner, the public embarrassments, and declared that the crisis had arrived, when the people of the United States must decide whether they were to continue to rank as a nation, by maintaining the public faith at home and abroad; or whether, for want of timely exertion in establishing a general revenue, they would hazard the existence of the Union, and the great national privileges which they had fought to obtain.[231] Under the influence of this urgent representation, all the States, except New York, passed acts granting the impost, and vesting the power to collect it in Congress, pursuant to the recommendations of 1783, but upon the condition that it should not be in force until all the States had granted it in the same manner. The State of New York passed an act[232], reserving to itself the sole power of levying and collecting the impost; making the collectors amenable to and removable by the State, and not by Congress; and making the duties receivable in specie or bills of credit, at the option of the importer. Such a departure from the plan suggested by Congress, and adopted by the other States, of course made the whole system inoperative in the other States, and there remained no possibility of procuring its adoption, but by inducing the State of New York to reconsider its determination. All hope of meeting the public engagements, and of carrying on the government, now turned upon the action of a single State. The principal argument made use of, by those who supported the conduct of New York, was, that Congress, being a single body, might misapply the money arising from the duties. An answer to this pretence, from the pen of Hamilton, declared that the interests and liberties of the people were not less safe in the hands of those whom they had delegated to represent them for one year in Congress, than they were in the hands of those whom they had delegated to represent them for one or four years in the legislature of the State; that all government implies trust, and that every government must be trusted so far as it is necessary to enable it to attain the ends for which it is instituted, without which insult and oppression from abroad, and confusion and convulsion at home, must ensue[233]. The real motive, however, with those who ruled the counsels of New York at this period, was a hope of the commercial aggrandizement of the State; and the jealousies and fears of national power, which were widely prevalent, were diligently employed to defeat the system proposed by Congress. After the passage of the act of New York, and the adjournment of the legislature, Congress earnestly recommended to the executive of that State to convene the legislature again, to take into its consideration the recommendation of the revenue system, for the purpose of granting the impost to the United States, in conformity with the grants of other States, so as to enable the United States to carry it into immediate effect[234]. The Governor declined to accede to this recommendation.[235] Congress repeated it, declaring that the critical and embarrassed state of the finances required that the impost should be carried into immediate operation, and expressing their opinion, that the occasion was sufficiently important and extraordinary for them to request that the legislature should be specially convened.[236] The executive of New York again refused the request of Congress, and the fate of the impost system remained suspended until the meeting of the legislature, at its regular session in January, 1787. It was never adopted by that State, and consequently never took effect. FOOTNOTES: [210] The Journals give the following account of General Washington's resignation:-- "According to order, his Excellency the Commander-in-chief was admitted to a public audience, and being seated, the President, after a pause, informed him that the United States in Congress assembled were prepared to receive his communications; whereupon he arose and addressed as follows: 'MR. PRESIDENT,--The great events on which my resignation depended having at length taken place, I have now the honor of offering my sincere congratulations to Congress, and of presenting myself before them to surrender into their hands the trust committed to me, and to claim the indulgence of retiring from the service of my country. Happy in the confirmation of our independence and sovereignty, and pleased with the opportunity afforded the United States of becoming a respectable nation, I resign with satisfaction the appointment I accepted with diffidence; a diffidence in my abilities to accomplish so arduous a task; which, however, was superseded by a confidence in the rectitude of our cause, the support of the supreme power of the Union, and the patronage of Heaven. The successful termination of the war has verified the most sanguine expectations; and my gratitude for the interposition of Providence, and the assistance I have received from my countrymen, increases with every review of the momentous contest. While I repeat my obligations to the army in general, I should do injustice to my own feelings not to acknowledge, in this place, the peculiar services and distinguished merits of the gentlemen who have been attached to my person during the war. It was impossible the choice of confidential officers to compose my family should have been more fortunate. Permit me, sir, to recommend in particular those who have continued in the service to the present moment, as worthy of the favorable notice and patronage of Congress. I consider it an indispensable duty to close this last act of my official life by commending the interests of our dearest country to the protection of Almighty God, and those who have the superintendence of them to his holy keeping. Having now finished the work assigned me, I retire from the great theatre of action, and, bidding an affectionate farewell to this august body, under whose orders I have so long acted, I here offer my commission, and take my leave of all the employments of public life.' He then advanced and delivered to the President his commission, with a copy of his address, and having resumed his place, the President (Thomas Mifflin) returned him the following answer: 'SIR,--The United States in Congress assembled receive with emotions too affecting for utterance the solemn resignation of the authorities under which you have led their troops with success through a perilous and doubtful war. Called upon by your country to defend its invaded rights, you accepted the sacred charge, before it had formed alliances, and whilst it was without funds or a government to support you. You have conducted the great military contest with wisdom and fortitude, invariably regarding the rights of the civil power through all disasters and changes. You have, by the love and confidence of your fellow-citizens, enabled them to display their martial genius, and transmit their fame to posterity. You have persevered, till these United States, aided by a magnanimous king and nation, have been enabled, under a just Providence, to close the war in freedom, safety, and independence; on which happy event we sincerely join you in congratulations. Having defended the standard of liberty in this New World, having taught a lesson useful to those who inflict and to those who feel oppression, you retire from the great theatre of action with the blessings of your fellow-citizens; but the glory of your virtues will not terminate with your military command; it will continue to animate remotest ages. We feel with you our obligations to the army in general, and will particularly charge ourselves with the interests of those confidential officers who have attended your person to this affecting moment. We join you in commending the interests of our dearest country to the protection of Almighty God, beseeching him to dispose the hearts and minds of its citizens to improve the opportunity afforded them of becoming a happy and respectable nation. And for you we address to him our earnest prayers that a life so beloved may be fostered with all his care; that your days may be happy as they have been illustrious; and that he will finally give you that reward which this world cannot give." Journals, IX. 12, 13. December 22, 1783. [211] Ibid. [212] Journals, IX. 30. January 14, 1784. [213] See Washington's letter to Governor Harrison, of the date of January 18, 1784. Writings, IX. 11. [214] Twenty-three members voted on the ratification of the Treaty, January 14, 1784. On the 19th of April of the same year, the same number being present, eleven States only being represented, and nine of these having only two members each, the following resolution was passed: "_Resolved_, That the legislatures of the several States be informed, that, whilst they are respectively represented in Congress by two delegates only, such a unanimity for conducting the most important public concerns is necessary as can be rarely expected; that if each of the thirteen States should be represented by two members, five out of twenty-six, being only a fifth of the whole, may negative any measures requiring the voice of nine States; that of eleven States now on the floor of Congress, nine being represented by only two members from each, it is in the power of three out of twenty-five, making only one eighth of the whole, to negative such a measure, notwithstanding that by the Articles of Confederation the dissent of five out of thirteen, being more than one third of the number, is necessary for such a negative; that in a representation of three members from each State, not less than ten of thirty-nine could so negative a matter requiring the voice of nine States; that, from facts under the observation of Congress, they are clearly convinced that a representation of two members from the several States is extremely injurious, by producing delays, and for this reason is likewise much more expensive than a general representation of three members from each State; that therefore Congress conceive it to be indispensably necessary, and earnestly recommend, that each State, at all times when Congress are sitting, be hereafter represented by three members at least; as the most injurious consequences may be expected from the want of such representation." At the time when the report of the Convention, transmitting the Constitution, was received (September 28, 1787), there were thirty-three members in attendance, from twelve States. Rhode Island was not represented. [215] The sum reported by a committee, and finally agreed to be necessary, was $3,812,539.33. Journals, IX. 171. April 27, 1784. [216] Journals, VIII. 129. February 17, 1783. [217] Ibid. 198. April 26, 1783. [218] Connecticut, New Jersey, Pennsylvania, and South Carolina. [219] Of the old requisition of $8,000,000, made October 30, 1781, only $1,486,511.71 had been paid by all the States before December 31, 1783. [220] Journals, IX. 171-179. April 27, 1784. [221] Journals, X. 325-334. September 27, 1785. [222] Journals, XI. 167. August 2, 1786. [223] Ibid. 224. September 18, 1786. Upon this attempt of Rhode Island and New Jersey to pay their proportions in their own paper currency, the report of a committee declared, "That, to admit the receipt of bills of credit, issued under the authority of an individual State, in discharge of their specie proportions of a requisition, would defeat its object, as the said bills do not circulate out of the limits of the State in which they are emitted, and because a paper medium of any State, however well funded, cannot, either in the extensiveness of its circulation, or in the course of its exchange, be equally valuable with gold and silver. That if the bills of credit of the States of Rhode Island and New Jersey were to be received from those States in discharge of federal taxes, upon the principles of equal justice, bills emitted by any other States must be received from them also in payment of their proportions, and thereby, instead of the requisitions yielding a sum in actual money, nothing but paper would be brought into the federal treasury, which would be wholly inapplicable to the payment of any part of the interest or principal of the foreign debt, or the maintenance of the government of the United States." [224] Journals, XI. 34-40. February 15, 1786. [225] Ibid. [226] Journals, XI. 34-40. February 15, 1786. [227] New Hampshire, Massachusetts, Connecticut, New Jersey, Virginia, North Carolina, and South Carolina. [228] Pennsylvania and Delaware. [229] Delaware and North Carolina. [230] Rhode Island, New York, Maryland, and Georgia. [231] The report on this occasion (February 15, 1786), drawn by Rufus King, declared, "that the requisitions of Congress for eight years past have been so irregular in their operation, so uncertain in their collection, and so evidently unproductive, that a reliance on them in future as a source from whence moneys are to be drawn to discharge the engagements of the Confederacy, definite as they are in time and amount, would be not less dishonorable to the understandings of those who entertain such confidence, than it would be dangerous to the welfare and peace of the Union. The committee are therefore seriously impressed with the indispensable obligation that Congress are under, of representing in the immediate and impartial consideration of the several States the utter impossibility of maintaining and preserving the faith of the federal government by temporary requisitions on the States, and the consequent necessity of an early and complete accession of all the States to the revenue system of the 18th of April, 1783." [232] May 4, 1786. [233] Life of Hamilton, II. 385. [234] August 11, 1786. [235] The ground of his refusal was, "that he had not the power to convene the legislature before the time fixed by law for their stated meeting, except upon '_extraordinary occasions_,' and as the present business had already been particularly laid before them, and so recently as at their last session received their determination, it cannot come within that description." Life of Hamilton, II. 389. [236] August 23, 1786. CHAPTER II. 1784-1787. INFRACTIONS OF THE TREATY OF PEACE. The Treaty of Peace, ratified on the 14th of January, 1784, contained provisions of great practical and immediate importance. One of its chief objects, on the part of the United States, was, of course, to effect the immediate withdrawal of the British troops, and of every sign of British authority, from the country whose independence it acknowledged. A stipulation was accordingly introduced, by which the King bound himself, with all convenient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, to withdraw all his armies, garrisons, and fleets from the United States, and from every post, place, and harbor within the same. Although the ratification of the Treaty was followed by the departure of the British forces from the Atlantic coast, many important posts in the Western country, within the incontestable limits of the United States, with a considerable territory around each of them, were still retained[237]. On the part of England, it was of great consequence to secure to British subjects the property, and rights of property, of the enjoyment of which the state of hostilities had deprived them. A war between colonies and the parent state, which had sundered the closest intimacies of social and commercial intercourse, involved of necessity vast private interests. There were two large classes of English creditors, whose interests required protection; the British merchants to whom debts had been contracted before the Revolution, and the Tories, who had been obliged to depart from the United States, leaving debts due to them, and landed property, which had been seized. Clear and explicit stipulations were inserted in the Treaty, in order to protect these interests. It was provided that creditors on either side should meet with no lawful impediments to the recovery of the full value in sterling money of all _bona fide_ debts contracted before the date of the Treaty.[238] It was also agreed, that Congress should earnestly recommend to the legislatures of the respective States to provide for the restitution of all estates, rights, and properties, which had been confiscated, belonging to real British subjects, and to persons resident in districts in the possession of his Majesty's arms, and who had not borne arms against the United States; that persons of any other description should have free liberty to go into any of the States, and remain for the period of twelve months unmolested in their endeavors to obtain the restitution of their property and rights which had been confiscated; that Congress should recommend to the States a reconsideration and revision of all their confiscation laws, and a restoration of the rights and property of the last-mentioned persons, on their refunding the _bona fide_ price which any purchaser might have given for them since the confiscation. It was also agreed, that all persons having any interest in confiscated lands, either by debts, marriage settlements, or otherwise, should meet with no lawful impediment in the prosecution of their just rights.[239] It was further provided, that there should be no future confiscations made, nor any prosecutions commenced against any person on account of the part he might have taken in the war, and that no person should, on that account, suffer any future loss or damage, either in person, liberty, or property, and that those who might be in confinement on such charges, at the time of the ratification of the Treaty in America, should be immediately set at liberty, and the prosecutions be discontinued.[240] These provisions related to a great subject, with which, in the existing political system of this country, it was difficult to deal. The action of the States, with regard to some of the interests involved in these stipulations, had been irregular from an early period of the war. The Revolutionary Congress, on the commencement of hostilities, had suffered the opportunity of asserting their rightful control over the subject of alien interests, except as to property found on the high seas, to pass away; and the consequence was, that the States had, on some points, usurped an authority which belonged to the Union. A Union, founded in compact, and vesting the rights of war and peace in Congress, was formed in 1775; and from that time the Colonies, or, as they afterwards became, States, were never rightfully capable of passing laws to sequester or confiscate the debts or property of a national enemy[241]. After the great acts of national sovereignty which took place in 1775-6, a British subject could not, with any propriety, be considered as the enemy of Massachusetts, or of Virginia; he was the enemy of the United States, and by that authority alone, as the belligerent, was his property, in strictness, liable to be seized, or the debts due to him sequestered. But neither the Revolutionary Congress, nor that of the Confederation, appear to have ever exercised the power of confiscating the debts or property of British subjects, within the States, or to have recommended such confiscation to the States themselves[242]. On the other hand, they did not interfere when the States saw fit to do it. With regard to those inhabitants of the States who, adhering to the British crown, had abandoned the country, and left property behind them, it cannot so clearly be affirmed that the States should not have dealt with their persons or property. Congress, as we have seen, at an early period of the war, committed the whole subject of restraining the persons of the Tories to the Colonies or States; and as Congress never assumed or exercised any jurisdiction over their property, it was of course left to be dealt with by the legislatures of the States, to whom Congress had declared that their several inhabitants owed allegiance[243]. But as these persons, by adhering to the crown, might claim of the crown the rights and protection of British subjects, the propriety of confiscating or withholding their property would remain for solution, at the negotiation of the Treaty of Peace, as a question of general justice and equity, rather than of public law. The interests of both of these classes of persons were too important to be overlooked. Three millions sterling were due from the inhabitants of the Colonies to merchants in Great Britain, at the commencement of the war. At the return of peace, the laws of five of the States were found either to prohibit the recovery of the principal, or to suspend its collection, or to prohibit the recovery of interest, or to make land a good payment in place of money.[244] The purpose of the Treaty was to declare, that all _bona fide_ debts, contracted before the date of the Treaty, and due to citizens of either country, remained unextinguished by the war; and consequently, that interest, when agreed to be paid, or payable by the custom, or demandable as damages for delay of payment, was justly due. Over this whole subject of foreign debts, the national sovereignty, of right, had exclusive control; for confiscation of the property of a national enemy belongs exclusively to the power exercising the rights of war; and therefore whatever State laws might have been passed during the war, exercising rights which belonged to the national sovereign, they could have no validity when that sovereign came to resume its control over the subject, and to stipulate that the right of confiscation, if it ever existed, should not be exercised. The State laws, however, existed, and remained in conflict with the Treaty, for several years, producing consequences to which we shall presently advert. The fifth article of the Treaty was infringed by an act passed by the State of New York, authorizing actions for rent to be brought by persons who had been compelled to leave their lands and houses by the enemy, against those who had occupied them while the enemy were in possession, and declaring that no military order or command of the enemy should be pleaded in justification of such occupation.[245] The sixth article was also violated by an act of the same State, which made those inhabitants who had adhered to the enemy, if found within the State, guilty of misprision of treason, and rendered them incapable of holding office, or of voting at elections.[246] The powers of the government were entirely inadequate to meet this state of things. The Confederation gave to the United States in Congress assembled the sole and exclusive right of determining on peace and war, and of entering into treaties and alliances. The nature of the sovereignty thus established made a treaty the law of the land, and binding upon every member of the Union; but there existed no means of enforcing the obligation. If the legislatures of the States passed laws restraining or interfering with the provisions of a treaty, Congress could only declare that they ought to be, and recommend that they should be, repealed. The simple and effectual intervention of a national judiciary, clothed with the power of declaring void any State legislation that conflicted with the national sovereignty, and of giving the means of enforcing all rights which that sovereignty had guaranteed by compact with a foreign power, did not exist. Resort, it is true, could be had to the State tribunals; and, on one memorable occasion, such resort was had to them with success. But the legislative power assailed the independence of the judiciary, and indignantly declared a decision, made with fairness by a competent tribunal, subversive of law and good order, because it recognized the paramount authority of a treaty over a statute of the State.[247] The effect of such State legislation upon the relations of the two countries was direct and mischievous. The Treaty of Peace was designed, and was adapted, to produce a fair and speedy adjustment of those relations, upon principles of equity and justice. But its obligations were reciprocal, and it could not execute itself. It was made, on the one side, by a power capable of performing, but also capable of waiting for the performance of the obligations which rested upon the other contracting party. On the other side, it was made by a power possessed of very imperfect means of performance, yet standing in constant need of the benefit which a full compliance with its obligations would insure. After the lapse of three years from the signature of the preliminary articles, and of more than two years from that of the definitive Treaty, the military posts in the Western country were still held by British garrisons, avowedly on account of the infractions of the Treaty on our part. The Minister of the United States at St. James's was told, in answer to his complaints, that one party could not be obliged to a strict observance of the engagements of a treaty, and the other remain free to deviate from its obligations; and that whenever the United States should manifest a real determination to fulfil their part of the Treaty, Great Britain would be ready to carry every article of it into complete effect.[248] An investigation of the whole subject, therefore, became necessary, and Congress directed the Secretary of Foreign Affairs to make inquiry into the precise state of things. His report ascertained that the fourth and fifth articles of the Treaty had been constantly violated on our part by legislative acts still in existence and operation; that on the part of England, the seventh article had been violated, by her continuing to hold the posts from which she had agreed to withdraw her garrisons, and by carrying away a considerable body of negroes, the property of American inhabitants, at the time of the evacuation of New York.[249] The serious question recurred,--what was to be done? The United States had neither committed nor approved of any violation of the Treaty; but an appeal was made to their justice, relative to the conduct of particular States, for which they were obliged eventually to answer. They could only resolve and recommend; and accordingly, after having declared that the legislatures of the States could not, of right, do any thing to explain, interpret, or limit the operation of a treaty, Congress recommended to the States to pass a general law, repealing all their former acts that might be repugnant to the Treaty, and leaving to their courts of justice to decide causes that might arise under it, according to its true intent and meaning, by determining what acts contravened its provisions.[250] This recommendation manifestly left the interests of the Union exposed to two hazards; the one, that the legislatures of the States might not pass the repealing statute, which would submit the proper questions to their courts, and the other, that their courts might not decide with firmness and impartiality between the policy of the State, on the one hand, and the interests of foreigners and obnoxious Tories, on the other. But this was all that could be done, and partial success only followed the effort. Most of the States passed acts, in compliance with the recommendation of Congress, to repeal their laws which prevented the recovery of British debts.[251] But the State of Virginia, although it passed such an act, suspended its operation, until the Governor of the State should issue a proclamation, giving notice that Great Britain had delivered up the Western posts, and was taking measures for the further fulfilment of the Treaty, by delivering up the negroes belonging to the citizens of that State, which had been carried away, or by making compensation for their value.[252] The two countries were thus brought to a stand, in their efforts to adjust the matters in dispute, and the Western posts remained in the occupation of British garrisons, inflaming the hostile temper of the Indian tribes, and enhancing the difficulty of settling the vacant lands in the fertile region of the Great Lakes.[253] FOOTNOTES: [237] Secret Journals of Congress, IV. 186, 187. [238] Article IV. [239] Article V. [240] Article VI. [241] See the Report made to Congress on this subject by Mr. Jay, Secretary of Foreign Affairs, October, 1786. Secret Journals, IV. 209. [242] Ibid. [243] Resolve of June 24, 1776. Journals, II. 216. Ante, p. 52, note. [244] An act passed by the legislature of Massachusetts, November 9, 1784, suspended judgment for interest on British debts, until Congress should have put a construction upon the Treaty declaring that it was due. An act of the State of New York, of July 12, 1782, restrained the collection of debts due to persons within the enemy's lines. Pennsylvania, soon after the peace, passed a law restraining the levy of executions. Virginia, at the time of the peace, had existing laws inhibiting the recovery of British debts. South Carolina had made land a good payment, in place of money. (See Mr. Jay's Report.) [245] Passed March 17, 1783. Secret Journals, IV. 267. [246] Passed May 12, 1784, after the Treaty had been ratified. Secret Journals, IV. 269-274. [247] This happened in New York, in a case under the "Trespass Act," where a suit was brought in the Mayor's Court of the City of New York, "to recover the rents of property held by the defendant under an order of Sir Henry Clinton." Hamilton, in the defence of this case, contended, with great power, that the act was a violation of the Treaty, and the court sustained his position. But the legislature passed resolves, declaring the decision to be subversive of law and good order, and recommending the appointing power "to appoint such persons Mayor and Recorder of New York as will govern themselves by the known law of the land." Life of Hamilton, II. 244, 245. [248] Mr. John Adams was sent as the first Minister of the United States to the Court of St. James's in 1785. He received this reply to a memorial which he addressed to the British government, on the subject of the Western posts, in February, 1786. Secret Journals, IV. 187. [249] Secret Journals, IV. 209. [250] March 21, 1787. [251] New Hampshire, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland, Virginia, and North Carolina passed such acts. [252] Pitkin's History of the United States, II. 198. [253] Marshall's Life of Washington, V. 67, 68. CHAPTER III. 1786-1787. NO SECURITY AFFORDED BY THE CONFEDERATION TO THE STATE GOVERNMENTS.--SHAYS'S REBELLION IN MASSACHUSETTS, AND ITS KINDRED DISTURBANCES. No federative government can be of great permanent value, which is not so constructed that it may stand, in some measure, as the common sovereign of its members, able to protect them against internal disorders, as well as against external assaults. The Confederation undertook but one of these great duties. It was formed at a time when the war with England was the great object of concern to the revolted Colonies, and when they felt only the exigencies which that war created. Hence its most important powers, as well as its leading purpose, concerned the common cause of resistance to a foreign domination. A federal league of States independent of each other, formed principally for mutual defence against a common enemy, was all that succeeded to the general superintending power of the British crown, by which the internal affairs of each of them had always been regulated and controlled, in the last resort. When the tie was broken by which they had been held to the parent state, each of them created for itself a new government, resting for its basis on the popular will, and deriving its authority directly from the people; but none of them provided for the creation of a power, external to itself, which might stand as the guarantor and protector of their new institutions, and secure the principles on which they rested against violence and overthrow. Yet the constitutions thus formed, from their peculiar nature, eminently needed the safeguards which such a power could afford. These constitutions were admirably constructed. They contained principles imperfectly known to the ancient governments; found in modern times only in the government of England; and applied there with far less consistency and completeness. They embraced the regular distribution of political power into distinct departments; legislative checks and balances, by means of two coördinate branches of the legislature; a judiciary in general holding office during good behavior; and the representation of the people in the legislature, by deputies of their own actual election, in which the theory of such representation was more perfectly carried into practice than it had ever been in the country from which it was derived. But the fundamental principle on which they all rested, and without which they could not maintain existence, required means of defence. They were established upon the great doctrine, that it is the right of every political society to govern itself, and for the purposes of such self-government, to create such constitutions and ordain such fundamental laws as its own judgment and its own intelligent choice may find best suited to its own interests. But society can act only by an expression of the aggregate will of its members; and as there may be members who dissent from the views and determinations of the great mass of society, and it is therefore necessary to decide with whom the power of compelling obedience resides,--since there must be obedience in order that there may be peace,--nature and reason have determined that this power is to reside with a majority of the members. The American constitutions, therefore, are founded wholly upon the principle, that a majority expresses the will of the whole society, and may establish, change, and abrogate forms of government at its pleasure.[254] It follows, as a necessary deduction from this fundamental doctrine, that so soon as society has acted in the formation and establishment of a government, upon this principle, no change can take place, but by a new expression of the will of society through the voice of a majority; and whether a majority desires or has actually decreed a change, is a fact that must be made certain, and can only be made certain in one of two modes,--either by the evidence and through the channels which the society has previously ordained for this purpose, or by the submission of all its members to a violent and successful revolution. The first constitution of Massachusetts did not designate any mode in which it was to be amended or changed. But no peaceable change can take place in any government founded on the expressed will of a majority of the people, consistently with the principle on which it had been established, until it has been ascertained, in some mode, that a change is demanded by the same authority. The vital importance of ascertaining this fact with precision was not so clearly perceived, at that early period, as it is now. Seizing upon the newly established doctrine, which made them the sources of all political power, the people did not at once apprehend the rule which preserves and upholds that power, and makes the doctrine itself both practicable and safe. Hence, when troubles arose, individuals were led to suppose that they had only to declare a grievance, to demand a change, and to compel a compliance with their demand by force. So far as they reasoned at all, they persuaded themselves that, as their government was the creation of the people, by their own direct act, bodies of the people could assemble in their primary capacity, and, by obstructing any of its functions which they connected with a particular grievance, produce a reform, which the people have always a right to make. By overlooking, in this manner, the only safe and legitimate mode in which the popular will can be really ascertained, they passed into the mischiefs of anarchy and rebellion, mistaking the voices of a minority for the ascertained will of society. To these tendencies, the recently established governments of New England, where the spirit of liberty was most vigorous, could oppose no efficient check; while, in any open outbreak, they were without any external defender, on whose power they could lean. The Confederation succeeded to the Revolutionary Congress, as we have more than once had occasion to observe, with less power than its predecessor might have exercised. It was formed by a written constitution, yet it was, strictly speaking, scarcely a government. It was a close union of the States; but it was a union from which all powers had been jealously withheld which would have enabled it to interfere with vigor and success between an insurgent minority of the people of a State and its lawful rulers. The Revolutionary Congress was once possessed of such large, indefinite powers, that, upon principles of public necessity, it might have assumed, in a great emergency, to hold a direct relation to the internal concerns of any Colony. It was, in fact, looked to, in some degree, for direction in the formation of the State governments, after it had broken the bonds of colonial allegiance to the English crown; and it might very properly have undertaken to support the governments whose establishment it had recommended. But such a relation between the early States and the continental power, though it certainly existed in 1776, was soon lost in the independent and jealous attitude which they began to occupy, and the Union rapidly assumed a position, where the character of sovereignty which it appeared to wear when it promulgated the Declaration of Independence was scarcely to be discerned. At no period in the history of the Confederation did it act upon the internal concerns or condition of a State. Its written articles of union hardly admitted of a construction which would have enabled it to do so, and certainly contained no express delegation of such a power. At the same time, some of the State governments, during the period of which we are treating, were singularly exposed to the dangers of anarchy. None of them had any standing forces of any consequence, three years after the peace, and the New England States had no military forces whatever but their militia. No State could call upon its neighbors for aid in quelling an insurrection, for their militia would not have obeyed the summons, if it had been issued; and no State could call upon the federal government, in such an emergency, with any certainty of success in the application.[255] In such a state of things, the year 1786 witnessed an insurrection in Massachusetts of a very dangerous character, which, from the fortunate circumstance that her counsels were then guided by a man of singular energy and firmness of character, she was just able to subdue. The remote causes of this insurrection lie too far from the path of our main subject to be more than summarily stated. At the close of the Revolutionary war, the State of Massachusetts was oppressed with an enormous debt. At the breaking out of that war, the debt of the Colony was less than one hundred thousand pounds. The private debt of the State, in the year 1786, was one million three hundred thousand pounds, besides two hundred and fifty thousand pounds due to the officers and soldiers of the State line of the Revolutionary army. The State's proportion of the federal debt was not less than one million and a half of pounds.[256] According to the customary mode of taxation, one third of the whole debt was to be paid by the ratable polls, which scarcely exceeded ninety thousand.[257] The Revolution had made the people of Massachusetts familiar with the great general doctrines of liberty and human rights; but it had given them little insight into the principles of revenue and finance, and little acquaintance with the rules of public economy. No sufficient means, therefore, to relieve the people from direct taxation, by encouraging a revival of trade and at the same time drawing from it a revenue, were devised by the legislature. The exports of the State, moreover, had suffered a fearful diminution. The fisheries, which had been a fruitful source of prosperity to the colony, had been nearly destroyed by the war, and the markets of the West Indies and of Europe were now closed to the products of this lucrative industry, by which wealth had formerly been drawn from the wastes of the ocean. The State had scarcely any other commodity to exchange for the precious metals in foreign commerce. Its agriculture yielded only a scanty support to its population, if it yielded so much; its manufactures were in a languishing condition; and its carrying trade had been driven from the seas during the war, and was afterwards annihilated by the oppressive policy of England, which succeeded the Peace. The people were every year growing poorer than they had been the year before, and taxes, onerous taxes, beyond their resources and always odious, were pressing upon them with a constantly increasing accumulation, from which the political state of the country seemed to promise no relief.[258] But the demand of the tax-gatherer was not the sole burden which individuals had to encounter. Private debts had accumulated during the war, in almost as large a ratio as the public obligations. The collection of such debts had been generally suspended, while the struggle for political freedom was going on; but that struggle being over, creditors necessarily became active, and were often obliged to be severe. Suits were multiplied in the courts of law beyond all former precedent, and the first effect of this sudden influx of litigation was to bring popular odium upon the whole machinery of justice. In a state of society approaching so nearly to a democracy, the class of debtors, if numerous, must be politically formidable. They had begun to be so before the close of the war. Their clamors and the supposed necessity of the case led the legislature, in 1782, to a violation of principle, in a law known as the Tender Act, by which executions for debt might be satisfied by certain articles of property, to be taken at an appraisement. This law was limited in its operation to one year; but in the course of that year it taught the debtors their strength, and gave the first signal for an attack upon property. A levelling, licentious spirit, a restless desire for change, and a disposition to throw down the barriers of private rights, at length broke forth in conventions, which first voted themselves to be the people, and then declared their proceedings to be constitutional. At these assemblies, the doctrine was publicly broached, that property ought to be common, because all had aided in saving it from confiscation by the power of England. Taxes were voted to be unnecessary burdens, the courts of justice to be intolerable grievances, and the legal profession a nuisance. A revision of the constitution was demanded, in order to abolish the Senate, reform the representation in the House, and make all the civil officers of the government eligible by the people. A passive declaration of their grievances did not, however, content the disaffected citizens of Massachusetts. They proceeded to enforce their demands. The courts of justice were the nearest objects for attack, as well as the most immediately connected with the chief objects of their complaints. Armed mobs surrounded the court-houses in several counties, and sometimes effectually obstructed the sessions of the courts. These acts were repeated, until, in the autumn of 1786, the insurrection broke out in a formidable manner in the western part of the State. The insurgents actually embodied, and in arms against the government, in the month of December, in the counties of Worcester and Hampshire, numbered about fifteen hundred men, and were headed by one Daniel Shays, who had been a captain in the continental army.[259] The executive chair of the State was at that time filled by James Bowdoin; a statesman, firm, prudent, of high principle, and devoted to the cause of constitutional order. In the first stages of the disaffection, he had been thwarted by a House of Representatives, in which the majority were strongly inclined to sympathize with the general spirit of the insurgents; but the Senate had supported him. Afterwards, when the movement grew more dangerous, the legislature became more reconciled to the use of vigorous means to vindicate the authority of the government, and a short time before it actually took the form of an armed and organized rebellion against the Commonwealth, they had encouraged the Governor to use the powers vested in him by the constitution to enforce obedience to the laws. The Executive promptly met the emergency. A body of militia was marched against the insurgents, and by the middle of February they were dispersed or captured, with but little loss of life. The actual resources of the State, however, to meet an emergency of this kind, were feeble and few. A voluntary loan, from a few public-spirited individuals, supplied the necessary funds, of which the treasury of the State was wholly destitute.[260] At one time, so general was the prevalence of discontent, even among the militia on whom the government were obliged to rely, that men were known openly to change sides in the field, when the first bodies of troops were called out.[261] Had the government of the State been in the hands of a person less firm and less careless of popularity than Bowdoin, it would have been given up to anarchy and civil confusion. The political situation of the country did not seem to admit of an application to Congress for direct assistance, and there is no reason to suppose that such an application would have been effectively answered, if it had been made.[262] When the news of the disturbances in Massachusetts, in the autumn of 1786, was received in Congress, it happened that intelligence from the Western country indicated a hostile disposition on the part of several Indian tribes against the frontier settlements. A resolve was unanimously adopted, directing one thousand three hundred and forty additional troops to be raised, for the term of three years, for the protection and support of the States bordering on the Western territory and the settlements on and near the Mississippi, and to secure and facilitate the surveying and selling of the public lands.[263] From the fact that the whole of these troops were ordered to be raised by the four New England States, and one half of them by the State of Massachusetts, and from other circumstances, it is quite apparent that the object assigned was an ostensible one, and that Congress intended by this resolve to strengthen the government of that State and to overawe the insurgents.[264] But this motive could not be publicly announced. The enlistment went on very slowly, however, until February, when a motion was made by Mr. Pinckney of South Carolina to stop it altogether, upon the ground that the insurrection in Massachusetts, the real, though not the ostensible, object of the resolve, had been crushed. Mr. King of Massachusetts earnestly entreated that the federal enlistments might be permitted to go on, otherwise the greatest alarm would be felt by the government of the State and its friends, and the insurrection might be rekindled. Mr. Madison advised that the proposal to rescind the order for the enlistments should be suspended, to await the course of events in Massachusetts. At the same time, he admitted that it would be difficult to reconcile an interference of Congress in the internal controversies of a State with the tenor of the Articles of Confederation.[265] The whole subject was postponed, and the direct question of the power of Congress was not acted upon. In the Convention which framed the Constitution, it was very early declared, that the Confederation had neither constitutional power, nor means, to interfere in case of a rebellion in any State.[266] This generation can scarcely depict to itself the alarm which these disturbances spread through the country, and the extreme peril to which the whole fabric of society in New England was exposed. The numbers of the disaffected in Massachusetts amounted to one fifth of the inhabitants in several of the populous counties. Their doctrines and purposes were embraced by many young, active, and desperate men in Rhode Island, Connecticut, and New Hampshire, and the whole of this faction in the four States was capable of furnishing a body of twelve or fifteen thousand men, bent on annihilating property, and cancelling all debts, public and private.[267] But this great peril was not without beneficial consequences. It displayed, at a critical moment, when a project of amending the Federal Constitution for other purposes was encountering much opposition, a more dangerous deficiency than any to which the public mind had hitherto been turned. While thoughtful and considerate men were speculating upon the causes of diminished prosperity and the general feebleness of the system of government, a gulf suddenly yawned beneath their feet, threatening ruin to the whole social fabric. It was but a short time before, that the people of this country had shed their blood to obtain constitutions of their own choice and making. Now, they seemed as ready to overturn them as they had once been to extort from tyranny the power of creating and erecting them in its place. It was manifest, that to achieve the independence of a country is but half of the great undertaking of liberty;--that, after freedom, there must come security, order, the wise disposal of power, and great institutions on which society may repose in safety. It was clear, that the Federal Union alone could certainly uphold the liberty which it had gained for the people of the States, and that, to enable it to do so, it must become a government.[268] From his retreat at Mount Vernon, Washington observed the progress of these disorders with intense anxiety. To him, they carried the strongest evidence of a want of energy in the system of the Federal Union. They did more than all things else to convince him that "a liberal and energetic constitution, well checked and well watched to prevent encroachments, might restore us to that degree of respectability and consequence to which we had the fairest prospect of attaining."[269] He was kept accurately informed of the state of things in New England, and the probability that he would be obliged to come forward, and take an active part in the support of order against civil discord, was directly intimated to him.[270] He had foreseen the possibility of this; but the successful issue of the struggle relieved him from the contemplation of this painful task, and left to him only the duty of giving the whole weight of his influence and presence in the Convention, which was to assemble in the following May, for the revision of the Federal Constitution. FOOTNOTES: [254] Gibbon, with that graceful satire which knew how to hit two objects with the same stroke of his pen, describes hereditary monarchy as "an expedient which deprives the multitude of the dangerous, and indeed the ideal, power of giving themselves a master." The historian of the Decline and Fall began to publish his great work, just as the American Revolution burst upon the world. Since that sentence was penned, the experiment of a system, by which the multitude give to themselves a master, in the constitutional organs of their own will, has had a fair trial. We may not say that its trial is past, or that the system is established beyond the possibility of further dangers. But we may with a just pride point to its escape, in the days of its first establishment and greatest danger, and to the securities which the Constitution of the United States now affords, against similar perils, when they threaten the constitutions of the States. [255] A power to interfere in the internal concerns of a State would only have been exercised by a broad construction of the third of the Articles of Confederation, which was in these words: "The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever." When this is compared with the clear and explicit provision in the Constitution, by which it is declared that "the United States shall guarantee to every State in this Union a republican form of government," there can be no wonder that a doubt was felt in the Congress of 1786-87 as to their powers upon this subject. It is true that the Massachusetts delegation, when they laid before Congress the measures which had been taken by the State government to suppress the insurrection, expressed the confidence of the legislature that the firmest support and most effectual aid would have been afforded by the United States, had it been necessary, and asserted that such support and aid were expressly and solemnly stipulated by the Articles of Confederation. (Journals, XII. 20. March 9, 1787.) But this was clearly not the case; and it was not generally supposed in Congress that the power existed by implication. All that was done by Congress towards raising troops, at the time of the insurrection, was done for the _ostensible_ purpose of protecting the frontiers against an Indian invasion, as we shall see hereafter. [256] Minot's History of the Insurrection, p. 6. [257] Ibid. [258] See the next chapter for some particulars respecting the trade of Massachusetts. [259] Minot's History of the Insurrection, p. 82 et seq. [260] Governor Bowdoin's Speech to the Legislature, February 3, 1787. [261] Minot. [262] In the spring of 1786, the State had asked the loan from Congress of sixty pieces of field artillery. The application was refused, by the negative vote of six States out of eight, one being divided, and the delegation from Massachusetts alone supporting it. Journals, XI. 65-67. April 19, 1786. [263] Journals, XI. 258. October 30, 1786. [264] It was well understood, for instance, in the legislature of Virginia, that this was the real purpose; for Mr. Madison says that this consideration inspired the ardor with which they voted, towards their quota of the funds called for to defray the expenses of this levy, a tax on tobacco, which would scarcely have been granted for any other purpose, as its operation was very unequal. Elliot's Debates, V. 95. February 19, 1787. [265] Ibid. [266] Ibid. 127. [267] This was the estimate of their numbers formed by General Knox, on careful inquiry, and by him given to General Washington. See a letter from General Washington to Mr. Madison. Works, IX. 207. [268] Washington, writing to Henry Lee in Congress, October 31, 1786, says: "You talk, my good sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorders. _Influence_ is not _government_. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once." Works, IX. 204. [269] Ibid. 208. [270] Ibid. 221. CHAPTER IV. ORIGIN AND NECESSITY OF THE POWER TO REGULATE COMMERCE. Among all the causes which led to the establishment of the Constitution of the United States, there is none more important, and none that is less appreciated at the present day, than the inability of the Confederation to manage the foreign commerce of the country. We have seen that, when the Articles of Confederation were proposed for adoption by the States, the State of New Jersey remonstrated against the absence of all provision for placing the foreign trade of the States under the regulation of the federal government. But this remonstrance was without effect, and the instrument went into operation in 1781, with no other restriction upon the powers of the States to regulate trade according to their pleasure, than a prohibition against levying imposts or duties which would interfere with the treaties then proposed. While the war continued, the subject was of comparatively little importance. But the return of peace found this country capable of becoming a great commercial, as well as agricultural nation; and it could not be overlooked, that its government possessed very inadequate means for establishing such relations with foreign powers as would best develop its resources and conduce to its internal harmony and prosperity. How early this great interest had attracted the attention of those who were most capable of enlarged and statesmanlike views of the actual nature of the Union and the wants of the States, there are perhaps as yet before the world no sufficient means of determining. We know, however, that, before the peace, Hamilton saw clearly that it was essential for the United States to be vested with a general superintendence of trade, both for purposes of revenue and regulation; that he foresaw the encouragement of our own products and manufactures, by means of general prohibitions of particular articles and a judicious arrangement of duties, and that this could only be effected by a central authority; and that the due observance of any commercial treaty which the United States might make with a foreign power could not be expected, if the different States retained the regulation of their own trade, and thus held the practical construction of treaties in their own hands.[271] But it does not appear that, among the other principal statesmen of the Revolution, these ideas had made much progress, until the entire incapacity of the Confederation to negotiate advantageous commercial treaties, for want of adequate power to enforce them, had displayed the actual weakness of its position, and the oppressive measures of other countries had taught them that there was but one remedy for such evils. Then, indeed, they saw that the United States could have a standing as a commercial power among the other powers of the world, only when their representatives could be received and dealt with as the representatives of one, and not of thirteen sovereignties; and that, if the measures of other countries, injurious to the trade of America, were to be counteracted at all, it must be by a power that could prohibit access to all the States alike, or grant it as to all, as circumstances might require.[272] The actual commercial relations of the United States with other countries, when the peace took place, were confined to treaties of amity and commerce with France, Sweden, and the Netherlands; the two latter transcending, in some degree, the powers of the Confederation. In 1776, the Revolutionary Congress had adopted a plan of treaties to be proposed to France and Spain, which contemplated that the subjects of each country should pay no duties in the other except such as were paid by natives, and should have the same rights and privileges as natives in respect to navigation and commerce.[273] When a treaty of amity and commerce came to be concluded with France, in 1778, the footing on which the subjects of the two countries were placed, in the dominions of each other, was that of the most favored nations, instead of that of natives.[274] The Articles of Confederation, proposed in 1777, and finally ratified in March, 1781, reserved to the States the right of levying duties and imposts, excepting only such as would interfere with any treaties that might be made "pursuant to the treaties proposed to France and Spain." The United States could therefore constitutionally complete these two treaties, and such as were dependent upon them, but no others which should have the effect of restraining the legislatures of the States from prohibiting the exportation or importation of any species of goods or merchandise, or laying whatever duties or imposts they thought proper.[275] In 1782, negotiations were entered into for a similar treaty with the States General of the Netherlands. When the instructions to Mr. Adams to negotiate this treaty were under consideration in Congress, it was recollected that the French treaty contained a stipulation, the effect of which would enable the heirs of the subjects of either party, dying in the territories of the other, to inherit real property, without obtaining letters of naturalization.[276] The doubt suggested itself,--as it well might,--whether such an indefinite license to aliens to possess real property within the United States, was not an encroachment upon the rights of the States. It seems to have been expected, when the French treaty was entered into, that the States would acquiesce in this provision, on account of the peculiar relations of this country to France, and because of the saving clause in the Articles of Confederation in favor of the treaties to be made with that power and with Spain.[277] But such a stipulation as this was clearly not within the meaning of that clause; and it was received with great repugnance by many of the States.[278] In the treaty with the Netherlands, it was proposed to insert a similar provision; but it was found to be extremely improbable that the States would comply with a similar engagement with another power. The language was therefore varied, so as to give the privilege of inheritance only as to the "effects" of persons dying in the country;--an expression which would probably exclude real property, but which might possibly be construed to include it.[279] With regard to duties and imposts, the Dutch treaty contained the same stipulation as the French, putting the subjects of either power on the footing of the most favored nations, and thereby holding out to the subjects of the United Provinces the promise of an equality, under the laws of the United States, with the subjects of France.[280] The same stipulation was inserted in a treaty subsequently made at Paris with the King of Sweden.[281] If these stipulations were supposed or intended to be binding upon the States, so as to restrain them from adopting, within their respective jurisdictions, any other rule than that fixed by the French treaty, for the subjects of the United Provinces and the King of Sweden, it is quite clear that the Articles of Confederation gave no authority to Congress to make them. They could have no effect, therefore, in producing a uniformity of regulation throughout the United States, with regard to the trade with Sweden and the Netherlands. The relations of the United States with Great Britain were, however, far more important, than their relations with Sweden or Holland. When the war was drawing to a close, and the provisional articles of peace had been agreed upon, a measure was in preparation in England, under the auspices of Mr. Pitt, designed as a temporary arrangement of commercial intercourse between Great Britain and the United States, and which would have enabled the government of this country to have formed a treaty so advantageous, that the States would doubtless have conformed their legislation to its provisions. That great statesman perceived, that it was extremely desirable to establish the intercourse of the two countries on the most enlarged principles of reciprocal benefit, and his purpose was, by a provisional arrangement, to evince the disposition of England to be on terms of amity with the United States, preparatory to the negotiation of a treaty.[282] But the administration, in which he was then Chancellor of the Exchequer, went out of office immediately after he had proposed this measure, and their successors, following a totally different line of policy, procured an act of Parliament authorizing the King in Council to regulate the commercial intercourse between the United States and Great Britain and her dependencies.[283] Mr. Pitt's bill was designed to admit the vessels and subjects of the United States into all the ports of Great Britain, in the same manner as the subjects and vessels of other independent sovereign states, and to admit merchandise and goods, the growth, produce, or manufacture of this country, under the same duties and charges as if they were the property of British subjects, imported in British vessels. It also proposed to establish an entirely free trade between the United States and the British islands, colonies, and plantations in America. The new administration, on the contrary, believing that this would encourage the American marine, to the ruin of that of Great Britain, and would deprive the latter of a monopoly in the consumption of her colonies, and in their carrying trade, resolved to reverse this entire policy. In this course, they were encouraged by the views which they took of the internal situation of this country, and which were, to a great extent, justified by the fact. They believed that we could not act, as a nation, upon questions of commerce; that the climates, the staples, and the manners of the States were different, and their interests therefore opposite; and that no combination was likely to take place, from which England would have reason to fear retaliation. They supposed, that, inasmuch as the Confederation had no power to make any but general treaties, and as the States had reserved to themselves nearly every power concerning the regulation of trade, no treaty could be made that would be binding upon all the States; and that, if treaties should become necessary, they must be made with the States respectively. But they denied that treaties were necessary, and maintained that it would be unwise to enter at present into any arrangements by which they might not wish afterwards to be bound. They determined, therefore, to deal with this country as a collection of rival States, with each of which they could make their own terms, after the pressure of their policy, and the impossibility of escaping from its effects, had begun to be felt. They accordingly began, by excluding from the British West Indies, under Orders in Council, the whole American marine, and by prohibiting fish, and many important articles of our produce, from being carried there, even in British vessels.[284] At the termination of the war, the foreign commerce of the United States was capable of great expansion. It consisted of three important branches,--the trade of the Eastern, that of the Middle, and that of the Southern States; each of which required at once the means of reaching foreign markets. The rice and indigo of the South might be carried to Europe. The Middle States might export to Europe tobacco, tar, wheat, and flour; and to the West Indies, pork, beef, bread, flour, lumber, tar, and iron. The Eastern States might supply the markets of Europe with spars, ship-timber, staves, boards, fish, and oil, and those of the West Indies with lumber, pork, beef, live cattle, horses, cider, and fish. The whole of these great interests of course received a sudden and almost fatal blow from the English Orders in Council, and no means whatever existed of countervailing their effects, but such as each State could provide for its own people, by its own legislation. Congress, however, awoke to the perception of an efficient and appropriate remedy, of a temporary character, and prepared to apply it, through an amendment of their powers. For the purpose of meeting the policy of Great Britain with similar restrictions on her commerce, they recommended to the States to vest in Congress, for the term of fifteen years, authority to prohibit the vessels of any power, not having treaties of commerce with the United States, from importing or exporting any commodities into or from any of the States, and also with the power of prohibiting, for a like term, the subjects of any foreign country, unless authorized by treaty, from importing into the United States any merchandise not the produce or manufacture of such country.[285] There was already before the States, as we have seen, in the revenue system of 1783, a proposal to them to vest in Congress power to levy certain duties on foreign commodities, for the same period; and if these two grants of power had been made, and made promptly, by the States, Congress would have possessed, for a time, an effectual control over commerce, and the practical means of forming suitable commercial treaties. But the proposal of the 30th of April, 1784, met with a tardy and reluctant attention among the States. Only one of them had acted upon it, as late as the following February, when the delegates for Maryland laid before Congress an act of that State upon the subject.[286] New Hampshire was the next State to comply, in the succeeding June.[287] In the mean time, however, Congress prepared to prosecute negotiations in Europe, trusting to the chances of an enlargement of their powers, in pursuance of their recommendation. Accordingly, they proceeded, in the spring of 1784, to appoint a commission to negotiate commercial treaties, and settled the principles on which such treaties were to be formed. The leading principle then determined on was, that each party to the treaty should have a right to carry their own produce, manufactures, and merchandise in their own bottoms to the ports of the other, and to take thence the produce, manufactures, and merchandise of the other, paying, in both cases, such duties only as were paid by the most favored nation. The resolves appointing the commission also contained a very explicit direction, that "the United States, in all such treaties, and in every case arising under them, should be considered as one nation, upon the principles of the Federal Constitution."[288] Yet the Federal Constitution did not, at that very moment, make the United States one nation for this purpose. Its principles gave to Congress no authority which could prevent the States from prohibiting any exportations or importations whatever, as to their respective territories; and the validity of these treaties, thus proposed to be negotiated with fifteen European powers, depended altogether upon the precarious assent of the thirteen States to the alterations in the principles of the Federal Constitution which Congress had proposed. That assent was not likely to be given, so as to become effectual for the purposes for which it had been asked. The action of the States was found, in the spring of 1786, to present a mass of incongruities, which rendered the whole scheme of thus increasing the federal powers almost hopeless. Four of the States had passed laws, conforming substantially to the recommendations of Congress, but restraining their operation until the other States should have complied.[289] Three of the States had passed the requisite acts, and had fixed different periods at which they were to take effect.[290] One State had granted full powers to regulate its trade, by restrictions or duties, for fifteen years, with a proviso that the law should be suspended until all the other States had done the same.[291] Another State had granted power, for twenty-five years, to regulate trade between the respective States, and to prohibit or regulate the importation only of foreign goods in foreign vessels, but restricting the operation of the act until the other States had passed similar laws.[292] Still another State had granted powers like the last, but without limitation of time, and with the proviso that, when all the other States had made the same grants, it should become an Article of the Confederation.[293] The three remaining States had passed no act upon the subject.[294] Upon these conflicting and irreconcilable provisions, Congress could take no other action, than to call the attention of the States again to the original proposal, and request them to revise their laws.[295] While this discordant legislation was manifesting at home the entire impracticability of amending the Federal Constitution by means of the separate action of the State legislatures, the commissioners abroad were engaged in efforts, nearly as fruitless, to negotiate the treaties which they had been instructed to make. The commission was opened at Paris on the 13th of August, 1784, and its objects announced to the different governments. France was not disposed to change the existing relations. England perceived the real want of power in the federal government, and recognized nothing in the commission but the fact that it had been issued by Congress, while the separate States had conferred no powers upon either Congress or the commissioners.[296] Prussia alone entered into a treaty, upon some of the principles laid down in the commission, and soon after it was executed, the commissioners ceased to do any thing whatever.[297] During the period which elapsed from the Treaty of Peace with England to the assembling of the Convention at Annapolis, the legislation of the different States, designed to protect themselves against the policy of England, was of course without system or concert, and without uniformity of regulation. At one time duties were made extravagantly high; at another, competition reduced them below the point at which any considerable revenue could be derived. At one time, the States acted in open hostility to each other; at another, they contemplated commercial leagues, without regard to the prohibition contained in the Articles of Confederation. No steady system was pursued by any of them, and the inefficacy of State legislation became at length so apparent, that a conviction of the necessity of new powers in Congress forced itself upon the public mind. FOOTNOTES: [271] Life of Hamilton, II. 233, 234. See also his resolutions on the defects of the federal government, intended to be offered in Congress in 1783, and especially the eighth resolution. Works of Hamilton, II. 269. [272] Hamilton himself, in some papers which he published in 1781, under the title of The Continentalist, gave the general sum of American statesmanship and its opportunities, down to that period. The events of the next seven years gave it a wonderful development. "It would be the extreme of vanity in us," said he, "not to be sensible that we began this revolution with very vague and confined notions of the practical business of government. To the greater part of us, it was a novelty; of those who under the former constitution had had opportunities of acquiring experience, a large proportion adhered to the opposite side, and the remainder can only be supposed to have possessed ideas adapted to the narrow colonial sphere in which they had been accustomed to move, not of that enlarged kind suited to the government of an independent nation. There were, no doubt, exceptions to these observations;--men in all respects qualified for conducting the public affairs with skill and advantage;--but their number was small; they were not always brought forward in our councils; and when they were, their influence was too commonly borne down by the prevailing torrent of ignorance and prejudice. On a retrospect, however, of our transactions, under the disadvantages with which we commenced, it is perhaps more to be wondered at, that we have done so well, than that we have not done better. There are, indeed, some traits in our conduct, as conspicuous for sound policy as others for magnanimity. But, on the other hand, it must also be confessed, there have been many false steps, many chimerical projects and Utopian speculations, in the management of our civil as well as of our military affairs. A part of these were the natural effects of the spirit of the times, dictated by our situation. An extreme jealousy of power is the attendant on all popular revolutions, and has seldom been without its evils. It is to this source we are to trace many of the fatal mistakes, which have so deeply endangered the common cause; particularly that defect which will be the object of these remarks,--a want of power in Congress." Works, II. 186. [273] Secret Journals, II. 7, 8. [274] Ibid. 59. [275] Articles of Confederation, Art. VI., IX. The expression in the _sixth_ article was: "No State shall lay any imposts, &c. that shall interfere with any stipulations in treaties entered into by the United States with any king, prince, or state, _in pursuance of_ any treaties already proposed by Congress to the court of France and Spain." The _ninth_ article saved to the States the general power of levying duties and laying prohibitions. [276] Secret Journals, II. 65, 66. Art. XIII of the Treaty of Amity and Commerce with France. The expression employed was, "goods movable and immovable," and the right of succession was given, _ab intestato_, without first obtaining letters of naturalization. [277] See a report on this _projet_ of the treaty, made by Mr. Madison, July 17, 1782. Secret Journals, II. 142-144. [278] Ibid. [279] Art. VI. of the Treaty of Amity and Commerce with the Netherlands, executed by Mr. Adams at the Hague, October 8, 1782. Journals, VIII. 96. [280] Ibid., Art. II., III. [281] April 3, 1783. Journals, VIII. 386-398. [282] Mr. Pitt's bill was brought in in March, 1783, and he went out of office immediately afterwards. [283] April, 1783. [284] July, 1783. Their idea was, that, if the American States should choose to send consuls, they should be received, and consuls sent to them in return that each State would soon enter into all necessary regulations with the consul, and that nothing more was necessary. See Lord Sheffield's Observations on American Commerce. [285] April 30, 1784. [286] February 14, 1785. Journals, X. 53. [287] By an act passed June 22-23, 1785; laid before Congress October 10, 1785. Ibid. 353. [288] The commission consisted of Mr. John Adams, then at the Hague, Dr. Franklin, then in France, and Mr. Jefferson, then in Congress. Mr. Jefferson sailed from Boston on the 5th of July, and arrived in Paris on the 6th of August, 1784. (Works, I. 49.) The powers with whom they were to negotiate commercial treaties were Russia, Austria, Prussia, Denmark, Saxony, Hamburg, Great Britain, Spain, Portugal, Genoa, Tuscany, Rome, Naples, Venice, Sardinia, and the Ottoman Porte. Secret Journals, III. 484-489. May 7, 1784. [289] Massachusetts, New York, New Jersey, and Virginia. [290] Connecticut, Pennsylvania, and Maryland. [291] New Hampshire. [292] Rhode Island. [293] North Carolina. [294] Delaware, South Carolina, and Georgia. [295] See a report made in Congress, March 3, 1786. Journals, XI. 41. [296] The Duke of Dorset, the English Ambassador at Paris, wrote to the commissioners (March 26, 1785) as follows: "Having communicated to my court the readiness you expressed in your letter to me of the 9th of December to remove to London, for the purpose of treating upon such points as may materially concern the interests, both political and commercial, of Great Britain and America; and having at the same time represented that you declared yourselves to be fully authorized and empowered to negotiate, I have been, in answer thereto, instructed to learn from you, gentlemen, what is the real nature of the powers with which you are invested,--whether you are merely commissioned by Congress, or whether you have received separate powers from the respective States. A committee of North American merchants have waited upon his Majesty's principal Secretary of State for Foreign Affairs, to express how anxiously they wished to be informed upon this subject; repeated experience having taught them in particular, as well as the public in general, how little the authority of Congress could avail in any respect, where the interest of any one individual State was even concerned, and particularly so where the concerns of that State might be supposed to militate against such resolutions as Congress might think proper to adopt. The apparent determination of the respective States to regulate their own separate interests renders it absolutely necessary, towards forming a permanent system of commerce, that my court should be informed how far the commissioners can be duly authorized to enter into any engagements with Great Britain, which it may not be in the power of any one of the States to render totally fruitless and ineffectual." Diplomatic Correspondence, II. 297. [297] Jefferson's Works, I. 50, 51. The whole proceedings of this commission may be found in the Diplomatic Correspondence, II. 193-346. CHAPTER V. 1783-1787. THE PUBLIC LANDS.--GOVERNMENT OF THE NORTHWESTERN TERRITORY.--THREATENED LOSS OF THE WESTERN SETTLEMENTS. The Confederation, although preceded by a cession of Western territory from the State of New York for the use of the United States, contained no grant of power to Congress to hold, manage, or dispose of such property. There had been, while the Articles of Confederation were under discussion in Congress, a proposal to insert a provision, giving to Congress the sole and exclusive right and power to ascertain and fix the western boundary of such States as claimed to the Mississippi or the South Sea, and to lay out the land beyond the boundary so ascertained into separate and independent States, from time to time, as the numbers and circumstances of the inhabitants might require.[298] This proposal was negatived by the vote of every State except Maryland and New Jersey.[299] Its rejection caused the adoption of the Confederation to be postponed for a period of more than two years after it was submitted to the States.[300] Virginia had set up claims to an indefinite extent of territory, stretching far into the Western wilderness, which were looked upon with especial jealousy by Maryland; and when the Articles of Confederation came before the legislature of that State for consideration, the absence of any provision vesting in the Union any control over these claims, or any power to ascertain and fix the western boundaries of the great States, became at once a cause of irritation and alarm. The steps taken by Maryland to have this power introduced into the Articles have already been detailed.[301] But the Articles could not be amended. Congress could only make efforts to remove this impediment to their adoption, by recommending to the States to cede their territorial claims to the Union. The first step which they took, for this purpose, was to recommend to the State of Virginia, and all the other States similarly situated, not to make sales of unappropriated lands during the continuance of the war.[302] This was followed by a full consideration of the subject presented by the objections of Maryland and the remonstrance of Virginia. Declining to reopen the question of the merits or policy of attempting to engraft the proposed power upon the Confederation, Congress deemed it more advisable to endeavor to procure a surrender of a portion of the territorial claims of the several States.[303] In pressing a recommendation to this effect, they were greatly aided by the course of the State of New York, which had already authorized its delegates in Congress to limit its western boundaries, and to cede a portion of its vacant lands to the United States.[304] They then immediately declared, by resolve, the purposes for which such cessions were to be held. The territories were to be disposed of for the common benefit of the United States; to be settled and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence as the other States. Each State so formed was to contain a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square; the necessary expenses incurred by any State in acquiring the territory ceded, were to be reimbursed; and the lands were to be granted or settled at such times, and under such regulations, as should thereafter be agreed upon by the United States in Congress assembled, or any nine or more of them.[305] The cessions were made under the guaranties of this resolve. Strictly speaking, there was no express constitutional power under which Congress could thus act, either before or after the adoption of the Articles of Confederation. Before that period, if the United States could acquire and hold lands, for any purpose, it could only be by the common attribute of sovereignty belonging to every government. Perhaps this power existed, by implication, in the revolutionary government; but the compact which was to constitute the new government contained no authority for the establishment of new States within the limits of the Union. But when, aside from the Articles of Confederation, and before they had been adopted, the Revolutionary Congress undertook, in 1780, to hold out these inducements to the States, as motives for their adoption of that instrument, and these motives were acted upon and the cessions made, it must be taken that the territory came rightfully into the possession of the United States. Whether the adoption of the Articles, containing no power for the government of such territories, or for the admission of new States into the Union, did not place the new government in a position where, if it acted at all, it would act beyond the scope of its constitutional authority, certainly admitted of grave question.[306] But the acquisition of the territory itself rested upon acts, which were so directly and expressly connected with the establishment of the new Union under the Confederation, as to make the acquisition itself part of the fundamental conditions of that Union, and the principal guaranty of its continuance. Among the declared purposes for which these acquisitions were made, was that of forming them into new States, to be admitted into the Union; and as all the States acquiesced in and embraced this purpose, they may be said to have conferred upon Congress an implied power to legislate to carry it into effect. Still, the want of an express authority in the Articles thus to deal with acquired territory was afterwards felt and insisted upon, as the Confederation drew towards the close of its career.[307] Virginia, in 1781, offered to make a cession to the United States of her title to lands northwest of the Ohio, upon certain conditions, which were not satisfactory, and the subject had not been acted upon in Congress when the revenue system of 1783 was adopted for recommendation to the States. Looking to the prospect of vacant lands, as a means of hastening the extinguishment of the public debts, as well as of establishing the harmony of the Union, Congress accompanied the recommendation of the revenue system by new solicitations to the States which had made no cessions of their public lands, or had made them in part only, to comply fully with the former recommendations. This drew from the State of New Jersey, apprehensive that the offer of Virginia might be accepted, a remonstrance against the cession proposed by that State, as partial, unjust, and illiberal.[308] Congress again took the subject into consideration, examined the conditions which the legislature of Virginia had annexed to their proposed grant, declared some of them inadmissible, and stated the conditions on which the cession could be received.[309] Virginia complied with the terms proposed by Congress, and upon those terms ceded to the United States all right, title, and claim, both of soil and jurisdiction, which the State then had to the territory within the limits of its charter, lying to the northwest of the river Ohio. That magnificent region, in which now lie the powerful States of Ohio, Indiana, Illinois, Michigan, and Wisconsin, became the property of the United States, by a grant of twenty lines, executed in Congress by Thomas Jefferson and three of his colleagues, on the 1st day of March, 1784.[310] Soon after this cession had been completed, Congress passed a resolve for the regulation of the territory that had been or might be ceded to the United States, for the establishment of temporary and permanent governments by the settlers, and for the admission of the new States thus formed into the Union.[311] This resolve provided, that the territory which had been or might be ceded to the United States, after the extinguishment of the Indian title, and when offered for sale by Congress, should be divided into separate States, in a manner specified; that the settlers on such territory, either on their own petition or on the order of Congress, should receive authority to form a temporary government; and that when there should be twenty thousand free inhabitants within the limits of any of the States thus designated, they should receive authority to call a convention of representatives to establish a permanent constitution and government for themselves, provided that both the temporary and permanent governments should be established on these principles, as their basis:--1. That they should for ever remain a part of the Confederacy of the United States of America. 2. That they should be subject to the Articles of Confederation and the acts and ordinances of Congress, like the original parties to that instrument. 3. That they should in no case interfere with the disposal of the soil by Congress. 4. That they should be subject to pay a part of the federal debts, present and prospective, in the same measure of apportionment with the other States. 5. That they should impose no tax upon lands, the property of the United States. 6. That their respective governments should be republican. 7. That the lands of non-resident proprietors should not be taxed higher than those of residents, in any new State, before its delegates had been admitted to vote in Congress. The resolve also contained a provision, which appears to have been designed to meet the want of constitutional power, under the Articles of Confederation, relative to the admission of new States. It was declared, that whenever any of the States thus formed should have as many free inhabitants as the least numerous of the thirteen original States, it should be admitted by its delegates into Congress on an equal footing with the original States, provided the assent of so many States in Congress should be first obtained, as might at the time be competent to such admission. It was further declared, that, in order to adapt the Articles of Confederation to the condition of Congress when it should be thus increased, it should be proposed to the original States, parties to that instrument, to change the rule, which required a vote of nine States, to a vote of two thirds of all the States in Congress; and that when this change had been agreed upon, it should be binding upon the new States. After the establishment of a temporary government, and before its admission into the Union, each of the new States was to have the right to keep a member in Congress, with the privilege of debating, but not of voting. It was also provided, that measures not inconsistent with the principles of the Confederation, and necessary for the preservation of peace and good order among the settlers in any of the said new States, until they had assumed a temporary government, might, from time to time, be taken by the United States in Congress assembled. These provisions were to stand as a charter of compact and as fundamental constitutions between the thirteen original States and each of the new States thus described, unalterable from and after the sale of any part of the territory of such State, but by the joint consent of the United States in Congress assembled, and of the particular State to be affected.[312] New and urgent recommendations followed the passage of this resolve, pressing the States to consider that the war was now happily brought to a close, by the services of the army, the supplies of property by citizens, and loans of money by citizens and foreigners, constituting a body of creditors who had a right to expect indemnification, and that the vacant territory was an important resource for this great object.[313] The subject does not seem to have again occupied the attention of Congress until the spring of the following year, when a proposition was introduced and committed, to exclude slavery and involuntary servitude, otherwise than in punishment of crimes, from the States described in the resolve of April 23d, 1784, and to make this provision part of the compact established by that resolve.[314] Soon afterwards, a cession was made by Massachusetts of all its right and title, both of soil and jurisdiction, to the Western territory lying within the limits of the charter of that State.[315] In the succeeding month, Congress adopted an ordinance for ascertaining the mode of disposing of the Western lands to settlers.[316] In the course of the next year, the cession by Connecticut was made, after various negotiations, with a reservation to that State of the property in a considerable tract of country, since called the Connecticut Reserve, lying to the south of Lake Erie, and now embraced within the State of Ohio.[317] Before this transaction had been completed, it had become manifest, from the knowledge that had been obtained of the country northwest of the Ohio, that it would be extremely inconvenient to lay it out into States of the extent and dimensions described in the resolve of October 10, 1780, under which the cession of Virginia had been made; and the legislature of that State were accordingly asked to modify their act of cession, so as to enable Congress to lay out the territory into not more than five nor less than three States, as the situation and circumstances of the country might require.[318] This suggestion was complied with.[319] A cession by South Carolina then followed, of all its claim to lands lying towards the river Mississippi;[320] but no other cessions were made to the United States under the Confederation; those of Georgia and North Carolina having been made after the adoption of the Constitution.[321] It appears, therefore, that, with the exception of the claims of South Carolina to territory lying due west from that State towards the river Mississippi, the United States, before the 13th of July, 1787, had become possessed of the title to no other territory than that which had been surrendered to them by the States of New York, Virginia, Massachusetts, and Connecticut. The great mass of this territory was that embraced within the cession of Virginia, and lying to the northwest of the river Ohio; and after the whole title to this region, with the exception of some reserved tracts, had become complete in the United States, it was subject to the resolves of 1780 and of 1784. The provisions of the resolve of 1784, however, were soon seen to be inconvenient and inapplicable to the pressing wants of this region. Immediate legislation was plainly demanded for this territory, which could not wait the slow process of forming first temporary and then permanent governments, as had been contemplated by that resolve. Congress had had cast upon it the administration of an empire, exterior to the Confederation, and rapidly filling with people, in which the rights and tenure of property, the preservation of order and tranquillity, and the shaping of its political and social destinies, required instant legislation. This legislation was therefore provided in the celebrated Ordinance for the Government of the Northwestern Territory, enacted July 13, 1787, which was designed to supersede and in terms directly repealed the resolve of 1784. As this fundamental law for a new and unsettled country--at that time a novel undertaking--must always be regarded with interest in every part of the world, and as it lies at the foundation of the civil polity of a sixth part of these United States, its principles and provisions should be carefully examined. The territory was, for the purposes of temporary government, constituted one district, subject to be divided into two, as future circumstances might require. An equal distribution of property among the children of persons dying intestate, with a life estate to the widow in one third of the real and personal estate, was made the law of the territory, until it should be altered by its legislature. Persons of full age were empowered to dispose of their estates by a written will, executed in the presence of three witnesses. Real estates were authorized to be conveyed by deed, executed by a person of full age, acknowledged and attested by two witnesses. Both wills and deeds were required to be registered. Personal property was transferable by delivery. The civil government of the territory was to consist of executive, legislative, and judicial branches. A Governor was to be appointed from time to time by Congress, and to be commissioned for three years, subject to removal; but he was to reside in the district, and to have a freehold estate there in one thousand acres of land, while in the exercise of his office. A Secretary was also to be appointed from time to time by Congress, and to be commissioned for four years, subject to removal, but to reside in the district, and to have a freehold estate there in five hundred acres of land, while in the exercise of his office. There was also to be appointed a court of common law jurisdiction, to consist of three judges, any two of whom should form a court; they were to reside in the district, and to have each a freehold estate there in five hundred acres of land, while in the exercise of their office; their commissions to continue in force during good behavior. The Governor and Judges, or a majority of them, were to adopt and publish in the district such laws of the original States, criminal and civil, as might be necessary and best suited to the circumstances of the district, to be in force in the district until the organization of the General Assembly, unless disapproved by Congress, to whom, from time to time, they should be reported;--but the legislature, when constituted, were to have authority to alter them as they should think fit. Magistrates and other civil officers were to be appointed by the Governor, previous to the organization of the General Assembly, for the preservation of peace and good order. After the organization of the General Assembly, the powers and duties of magistrates and other civil officers were to be regulated and defined by the legislature, but their appointment was to remain with the Governor. For the prevention of crimes and injuries, the laws to be adopted or made were to have force in all parts of the district, and for the execution of process, criminal and civil, the Governor was to make proper divisions of the territory, and to lay out the portions where the Indian titles had been extinguished, from time to time, into counties and townships, subject to future alteration by the legislature. As soon as there should be five thousand free male inhabitants, of full age, in the district, upon giving proof thereof to the Governor, they were to receive authority to elect representatives from their counties or townships, to represent them in the General Assembly. For every five hundred male inhabitants, there was to be one representative; and so on progressively the right of representation was to increase, until the number of representatives should amount to twenty-five, after which their numbers and proportions were to be regulated by the legislature. The qualifications of a representative were to be previous citizenship in one of the United States for three years, and residence in the district, or a residence of three years in the district, with a fee-simple estate, in either case, of two hundred acres of land within the district. The qualifications of electors were to be a freehold in fifty acres of land in the district, previous citizenship in one of the United States, and residence in the district, or the like freehold and two years' residence in the district. The Ordinance then proceeded to state certain fundamental articles of compact between the original States and the people and States in the territory, which were to remain unalterable, except by common consent. The first provided for freedom of religious opinion and worship. The second provided for the right to the writ of _habeas corpus_; for trial by jury; for a proportionate representation in the legislature; for judicial proceedings according to the course of the common law; for offences not capital being bailable; for fines being moderate, and punishments not cruel nor unusual; for no man's being deprived of his liberty or property, but by the judgment of his peers or the law of the land; for full compensation for property taken or services demanded for the public; and that no law should ever be made, or have force in the territory, that should in any manner whatever interfere with or affect private contracts or engagements, previously formed, _bona fide_ and without fraud. The third provided for the encouragement of religion and education, for schools, and for good faith towards the rights and property of the Indian tribes. The fourth provided that the territory and the States to be formed therein should for ever remain a part of the Confederacy, subject to the constitutional authority of Congress; that the inhabitants should be liable to be taxed proportionately for the public expenses; that the legislature in the territory should never interfere with the primary disposal of the soil by Congress, nor with their regulations for securing the title to purchasers; that no tax should be imposed on lands, the property of the United States; that non-resident proprietors should not be taxed more than residents; and that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying-places between them, should be common highways and for ever free. The fifth provided, that there should be formed in the territory not less than three, nor more than five States, with certain boundaries; and that whenever any of the States should contain sixty thousand free inhabitants, such State should be (and might be before) admitted by its delegates into Congress, on an equal footing with the original States in all respects whatever, and should be at liberty to form a permanent constitution and State government, provided it should be republican, and in conformity with these articles of compact. The sixth provided, that there should be neither slavery nor involuntary servitude in the territory, otherwise than in the punishment of crimes; but that fugitives owing service in other States might be reclaimed. American legislation has never achieved any thing more admirable, as an internal government, than this comprehensive scheme. Its provisions concerning the distribution of property, the principles of civil and religious liberty which it laid at the foundation of the communities since established under its sway, and the efficient and simple organization by which it created the first machinery of civil society, are worthy of all the praise that has ever attended it. It was not a plan devised in the closet, upon theoretical principles of abstract fitness. It was a constitution of government drawn by men who understood, from experience, the practical working of the principles which they undertook to embody. Those principles were, it is true, to be applied to a state of society not then formed; but they were taken from states of society in which they had been tried with success. The equal division of property; general, not universal suffrage, but a suffrage guarded by some degree of interest in society; representative government; the division of the three grand departments of political power; freedom of religious opinion and worship; the _habeas corpus_, trial by jury, and the course of the common law; the right to be bailed for offences not capital, and the prohibition of immoderate fines and cruel or unusual punishments; the great principle of compensation for property or service demanded by the public, and the legislative inviolability of contracts; the encouragement of schools and the means of education,--were all taken from the ancient or recent constitutions of States, from which the greater part of the inhabitants of the new territory would necessarily come. A community founded on these principles was predestined to prosperity and happiness. But it was in the provisions of the Ordinance relative to the admission into the Union of the new States to be formed upon this territory, that the relation between the existing government of the United States and its great dependency was afterwards found to involve serious difficulties. The Union was at that time a confederacy of thirteen States, originally formed mainly with reference to the exigencies of the war; and, although the Articles of Confederation had been ratified under circumstances which gave to the United States the authority to acquire this property, they had vested in Congress no power to enlarge the Confederacy by the admission of new States. Yet the Ordinance undertook to declare that new States should be admitted into the Congress of the United States on an equal footing with the existing States in all respects whatever, without proposing to submit that question to the original parties to the Confederacy. It does not appear from contemporary evidence that this difficulty attracted public attention, at the time of the passage of the Ordinance. In the year 1787, the Confederation was laboring under far more pressing and alarming defects than the want of strict constitutional power to create new States. Public attention was consequently more engaged with the consideration of evils which affected the prosperity of the original States themselves, than with the destiny of the new communities, or the method by which they were to be brought into the Union. It was not immediately perceived, also, that a property, capable at no distant day of becoming a vast mine of wealth to the United States, as a great and independent revenue, had come under the management of a single body of men, constituted originally without reference to such a trust, and with no declared constitutional provisions for its administration. When, however, the Constitution was in the process of formation, the necessity for provisions under which Congress could dispose of the public lands, and by which new States could be admitted into the Union, was at once felt and conceded on all sides.[322] Far more serious difficulties, however, attended the management by the Confederation of the interests of the Western country;--difficulties which commenced immediately after the Peace, and continued to increase, until the course taken by Congress had nearly lost to the Union the whole of that immense region which now pours its commerce down the Mississippi and its great tributary waters. These difficulties sprang from the inherent weakness of the federal government,--from the absolute incapacity of Congress, constituted as it was, to deal wisely, safely, and efficiently with the foreign relations of the country and its internal affairs, under the delicate and critical circumstances in which it was then placed. After the Treaty of Peace, the Western settlements, flanked by the dependencies of Great Britain at the north and of Spain at the south, and rapidly filling with a bold, adventurous, and somewhat lawless population, whose ties of connection with the Eastern States were almost sundered by the remoteness of their position and the difficulties of communication, stood upon a pivot, where accident might have thrown them out of the Union. This population found themselves seated in a luxuriant and fertile country, capable of a threefold greater production than the States eastward of the Alleghany and Appalachian Mountains, and intersected by natural water communications of the most ample character, all tending to the great highway of the Mississippi. A soil richer than any over which the Anglo-Saxon race had hitherto spread itself upon this continent, in any of its temperate climes; large plains and meadows, capable, without labor, of supporting millions of cattle; and fields destined to vie with the most favored lands on the globe in the production of wheat, were already accumulating upon the banks of their great rivers a weight of produce far beyond the necessities of subsistence, and loudly demanding the means of reaching the markets of the world. The people of the Atlantic States knew little of the resources or situation of this country. They valued it chiefly as a means of paying the public debts by the sale of its lands; but until they were in imminent danger of losing it, from the inefficiency of the national government, they had little idea of the supreme necessity of securing for it an outlet to the sea, if they would preserve it to the Union. Washington, in the autumn of 1784, after his retirement to Mount Vernon, made a tour into the Western country, for the express purpose of ascertaining by what means it could be most effectually bound to the Union. The policy of opening communications eastward, by means of the rivers flowing through Virginia to the Atlantic Ocean struck him at once. On his return, he addressed a letter to the Governor of the State, in which he recommended the appointment of a commission, to make a survey of the whole means of natural water communication between Lake Erie and the tide-waters of Virginia. He does not seem at this time to have considered the navigation of the Mississippi as of great importance; but he thought rather that the opening of that river would have a tendency to separate the Western from the Eastern States.[323] A year later, he held a clear opinion, that its navigation ought not at present to be made an object by the United States, but that their true policy was to open all the possible avenues between the Atlantic States and the Western territory, and that, until this had been done, the obstructions to the use of the Mississippi had better not be removed.[324] Those obstructions, however, involved the hazard of a loss of the territory to which the navigation of that river had already become extremely important. Their nature is, therefore, now to be explained. The Treaty of Peace with Great Britain recognized, as the southern boundary of the United States, a line drawn from a point where the thirty-first degree of north latitude intersected the river Mississippi, along that parallel due east to the middle of the river Appalachicola; thence along the middle of that river to its junction with the Flint River; thence in a straight line to the head of St. Mary's River; and thence down the middle of that river to the Atlantic Ocean.[325] At the time of the negotiation of this treaty West Florida was in the possession of Spain; and a secret article was executed by the British and American plenipotentiaries, which stipulated that in case Great Britain, at the conclusion of a peace with Spain, should recover or be put in possession of West Florida, the north boundary between that province and the United States should be a line drawn from the mouth of the river Yassous, where it unites with the river Mississippi, due east to the river Appalachicola.[326] The treaty also stipulated, that the navigation of the Mississippi, from its source to the ocean, should for ever remain free and open to the subjects of Great Britain and the citizens of the United States.[327] When the treaty came to be ratified and published, in 1784, the Spanish government was already acquainted with this secret article. Justly assuming that no treaty between Great Britain and the United States could settle the boundaries between the territories of the latter power and those of Spain, or give of itself a right to navigate a river passing wholly through their dominions, they immediately caused it to be signified to Congress, that, until the limits of Louisiana and the two Floridas should be settled and determined, by an admission on the part of Spain that they had been rightfully described in the Treaty with England, they must assert their territorial claims to the exclusive control of the river; and also, that the navigation would under no circumstances be conceded, while Spain held the right to its control.[328] To accommodate these difficulties, Congress resolved to send Mr. Jay, their Secretary of Foreign Affairs, to Spain; but his departure was prevented by the arrival in the United States of Don Diego Guardoqui, as Minister from Spain, charged with the negotiation of a treaty.[329] Preparatory to this negotiation, the first instruction which Mr. Jay received from Congress was, to insist upon the right of the United States to the territorial boundaries and the free navigation of the Mississippi, as settled by their treaty with Great Britain.[330] Upon this point, however, the Spanish Minister was immovable. A long negotiation ensued, in which he evinced entire readiness to make a liberal commercial treaty with the United States, conceding to their trade very important advantages; but at the same time refusing the right to use the Mississippi. Such a treaty was regarded as extremely important to the United States. There was scarcely a single production of this country that could not be advantageously exchanged in the Spanish European ports for gold and silver. The influence of Spain in the Mediterranean, with Portugal, with France, with the States of Barbary, and the trade with her Canaries and the adjacent islands, rendered a commercial alliance with her of the utmost importance. That importance was especially felt by the Eastern and Middle States, whose influence in Congress thus became opposed to the agitation of the subject of opening the Mississippi.[331] Indeed, the prevailing opinion in Congress, at this time, was for not insisting on the right of navigation as a necessary requisite in the treaty with Spain; and there were some important and influential persons in that body ready to agree to the abandonment of the right, rather than defer longer a free and liberal system of trade with a power able to give conditions so advantageous to the United States.[332] The Eastern States considered a commercial treaty with Spain as the best remedy for their distresses, which flowed, as they believed, from the decay of their commerce. Two of the Middle States joined in this opinion. Virginia, on the other hand, opposed all surrender of the right.[333] In this posture of affairs, Mr. Jay proposed to Congress a middle course. Believing, as Washington continued to believe,[334] that the navigation of the Mississippi was not at that time very important, and that it would not become so for twenty-five or thirty years, he suggested that the treaty should be limited to that period, and that one of its articles should stipulate, that the United States would forbear to use the navigation of the river below their territories to the ocean. It was supposed that such a forbearance, carrying no surrender of the right, would, at the expiration of the treaty, leave the whole subject in as favorable a position as that in which it now stood. Besides, the only alternative to obtaining such an article from Spain was to make war with her, and enforce the opening of the river. The experiment, at least, it was argued, would do no injury, and might produce much good.[335] These arguments prevailed, so far as to cause a change in Mr. Jay's instructions, by a vote, which was deemed by him sufficient to confer authority to obtain such an article as he had suggested, but which was clearly unconstitutional. Seven States against five voted to rescind the instructions of August 25, 1785, by which the Secretary had been directed to insist on the right of navigation, and not to conclude or sign any treaty until he had communicated it to Congress.[336] Mr. Jay accordingly agreed with the Spanish Minister on an article which suspended the use of the Mississippi, without relinquishing the right asserted by the United States.[337] While these proceedings were going on, and before the vote of seven States in Congress had been obtained in favor of the present suspension of this difficult controversy, an occurrence took place at Natchez, which aroused the jealousy of the whole West. A seizure was made there, by the Spanish authorities, of certain American property, which had been carried down the river for shipment or sale at New Orleans.[338] The owner, returning slowly in the autumn to his home, in the western part of North Carolina, by a tedious land journey through Kentucky, detailed everywhere the story of his wrongs and of the loss of his adventure. The news of this seizure, as it circulated up the valley from below, encountered the intelligence coming from the eastward, that Congress proposed to surrender the present use of the Mississippi. Alarm and indignation fired the whole population of the Western settlements. They believed themselves to be on the point of being sacrificed to the commercial policy of the Atlantic States; and, feeling that they stood in the relation of colonists to the rest of the Union, they held language not unlike that which the old colonies had held towards England, in the earlier days of the great controversy. They surveyed the magnificent region which they were subduing from the dominion of Nature;--the inexhaustible resources of its soil already yielding an abundance, which needed only a free avenue to the ocean to make them rich and prosperous;--and they felt that the mighty river which swept by them, with a volume of waters capable of sustaining the navies of the world, had been destined by Providence as a natural channel through which the productions of their imperial valley should be made to swell the commerce of the globe. But the Spaniard was seated at the outlet of this noble stream, sullenly refusing to them all access to the ocean. To him they must pay tribute. To enrich him, they must till those luxuriant lands, which gave, by an almost spontaneous production, the largest return which American labor had yet reaped under the industry of its own free hands. Their proud spirits, unaccustomed to restraint, and expanding in a liberty unknown in the older sections of the country, could not brook this vassalage. Into the comprehensive schemes of statesmen, who sought to unite them with the East by a great chain of internal improvements, and thus to blend the interests of the West with the commercial prosperity of the whole country, they were too impatient, and too intent upon the engrossing object of their own immediate advantage, to be able to enter. What, they exclaimed, could have induced the legislature of the United States, which had been applauded for their assertion and defence of the rights and privileges of the country, so soon to endeavor to subject a large part of their dominion to a slavery worse than that to which Great Britain had presumed to subject any part of hers? To give up to the Spaniards the greatest share of the fruits of their toils,--to surrender to them, on their own terms, the produce of that large, rich, and fertile country, and thus to enable them to command the benefits of every foreign market,--was an intolerable thought. What advantage, too, would it be to the Atlantic States, when Spain, from the amazing resources of the Mississippi, could undersell them in every part of the world? Did they think by this course of policy to prevent emigration from a barren country, loaded with taxes and impoverished by debts, to the most luxurious and fertile soil within the limits of the Union? The idea was vain and presumptuous. As well might the fishes of the sea be prevented from gathering on a bank that afforded them ample nourishment. The best and largest part of the United States was not thus to be left uncultivated; a home for savages and wild beasts. Providence had destined it for nobler purposes. It was to be the abode of a great, prosperous, and cultivated people,--of Americans in feeling, in rights, in spirit, incapable of becoming the bondmen of Spain, while the rest of their country remained free. Their own strength could achieve for them what the national power refused or was unable to obtain. Twenty thousand effective men, west of the Alleghanies, were ready to rush to the mouth of the Mississippi, and drive the Spaniards into the sea. Great Britain stood with open arms to receive them. If not countenanced and succored by the federal government, their allegiance would be thrown off, and the United States would find too late that they were as ignorant of the great valley of the Mississippi, as England was of the Atlantic States when the contest for independence began.[339] Such was the feeling that prevailed in the Western country, as soon as it became known that a treaty was actually pending, by which the right to navigate the Mississippi might be suspended for a quarter of a century. That it should have been accompanied by acts of retaliation and outrage against the property of Spanish subjects, was naturally to have been expected. A certain General Clarke, pretending to authority from the State of Virginia, undertook to enlist men and establish a garrison at Port St. Vincennes, ostensibly for the protection of the district of Kentucky, then under the jurisdiction of Virginia. He made a seizure there of some Spanish property for the purpose of clothing and subsisting his men, and sent an officer to the Illinois, to advise the settlers there of the seizures of American property made at Natchez, and to recommend them to retaliate for any outrages the Spaniards might commit upon their property.[340] The executive of Virginia disavowed these acts, as soon as officially informed of them; ordered the parties to be brought to punishment; and sent a formal disclaimer, through their delegates in Congress, to the Spanish Minister.[341] Guardoqui was not disturbed. He expected these occurrences, and maintained his ground, refusing to yield the right of navigating the river; and having assented to Mr. Jay's proposal of an article which suspended the use for a period of twenty-five years, he was quite ready to go on and conclude the treaty. The people of the Western country, however, began to form committees of correspondence, in order to unite their counsels and interests.[342] The inhabitants of Kentucky sent a memorial to the General Assembly of Virginia, which induced them to instruct their delegates in Congress to oppose any attempt to surrender the right of the United States to the free use of the Mississippi, as a dishonorable departure from the comprehensive and benevolent feeling that constituted the vital principle of the Confederation, and as provoking the just resentment and reproaches of the Western people, whose essential rights and interests would be thereby sacrificed. They also instructed their delegates to urge such negotiations with Spain as would obtain her consent to regulations for the mutual and common use of the river.[343] The members from Virginia, with one exception, concurred in the policy of these instructions,[344] and at first addressed themselves to some conciliatory expedient for obviating the effect of the vote of seven States. They first represented to Guardoqui that it would be extremely impolitic, both for the United States and Spain, to make any treaty which should have the effect of shutting up the Mississippi. They stated to him, that such a treaty could not be enforced; that it would be the means of peopling the Western country with increased rapidity, and would tend to a separation of that country from the rest of the Union; that Great Britain would be able to turn the force that would spring up there against Spanish America; and that the result would be the creation of a power in the valley of the Mississippi hostile both to Spain and the United States. These representations produced no impression. The Spanish Minister remained firm in the position which he had held from the first, that Spain never would concede the claim of the United States to navigate the river. He answered, that the result of what had been urged was, that Congress could make no treaty at all, and consequently that the trade of the United States must remain liable to be excluded from the ports of Spain.[345] Foiled in this quarter, the next expedient, for those who felt the necessity of preventing such a treaty as had been contemplated, was to gain time, by transferring the negotiation to Madrid; and Mr. Madison introduced a resolution into Congress for this purpose, which was referred to the Secretary for Foreign Affairs.[346] In a few days, the Secretary reported against the proposal, and nothing remained for the opponents of the treaty, but to attack directly the vote of seven States, under which the Secretary had acted in proceeding to adjust with the Spanish Minister an article for suspending the right of the United States to the common use of the river below their southern boundary. The Articles of Confederation expressly declared, that the United States should not enter into any treaty or alliance, unless nine States in Congress assented to the same.[347] It was very justly contended, therefore, that, to proceed to negotiate a treaty authorized by a vote of only seven States, would expose the United States to great embarrassment with the other contracting party, since the vote made it certain that the treaty could not be constitutionally ratified; and that the vote itself, having passed in a case requiring the assent of nine States, was not valid for the purpose intended by it. This was not denied; but the advocates of the treaty, by means of a parliamentary rule, resisted the introduction of a resolution to rescind the vote of seven States.[348] But while this dangerous subject was pending, the affairs of the country had taken a new turn. The Convention at Annapolis had been held, in the autumn of 1786, and the Convention called to revise the system of the federal government was to meet in May, 1787. It had become sure and plain, that a large increase of the powers of the national government was absolutely essential to the continuance of the Union and the prosperity of the States. Every day the situation of the country was becoming more and more critical. No money came into the federal treasury; no respect was paid to the federal authority; and all men saw and admitted that the Confederation was tottering to its fall. Some prominent persons in the Eastern States were suspected of leaning towards monarchy; others openly predicted a partition of the States into two or more confederacies; and the distrust which had been created by the project for closing the Mississippi rendered it extremely probable, that the Western country at least would be severed from the Union. The advocates of that project recoiled, therefore, from the dangers which they had unwittingly created. They saw, that the crisis required that harmony and confidence should be studiously cherished, now that the great enterprise of remodelling the government upon a firmer basis was to be attempted. They saw that no new powers could be obtained for the Federal Constitution, if the government then existing were to burden itself with an act so certain to be the source of dissension, and so likely to cause a dismemberment of the Confederacy, as the closing of the Mississippi. Like wise and prudent men, therefore, they availed themselves of the expected and probable formation of a new government, as a fit occasion for disposing of this question; and after an effort to quiet the apprehensions that had been aroused, the whole matter was postponed, by general consent, to await the action of the great Convention of May, 1787.[349] After the Constitution had been formed and adopted, the negotiation was formally referred to the new federal government which was about to be organized, in March, 1789, with a declaration of the opinion of Congress that the free navigation of the river Mississippi was a clear and essential right of the United States, and ought to be so considered and supported.[350] FOOTNOTES: [298] October 15, 1777. Secret Journals, I. 328. [299] Ibid. [300] See the account of the adoption of the Confederation, ante, pp. 131-141. [301] Ante, pp. 131-136. [302] October 30, 1779. Journals, V. 401, 402. [303] September 6, 1780. [304] February 19, 1780. [305] October 10, 1780. [306] The Federalist. [307] Ibid. [308] June 20, 1783. [309] September 13, 1783. [310] The granting part of the deed of cession, exclusive of its recitals, is as follows: "That we, the said Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Munroe, by virtue of the power and authority committed to us by the act of the said General Assembly of Virginia before recited, and in the name and for and on behalf of the said Commonwealth, do by these presents convey, transfer, assign, and make over unto the United States in Congress assembled, for the benefit of the said States, Virginia inclusive, all right, title, and claim, as well of soil as of jurisdiction, which the said Commonwealth hath to the territory or tract of country within the lines of the Virginia charter, situate, lying, and being to the northwest of the river Ohio, to and for the uses and purposes, and on the conditions, of the said recited act." The cession was made with the reservation of such a portion of the territory ceded, between the rivers Scioto and Little Miami, as might be required to make up the deficiencies of land on the south side of the Ohio, called the Green River lands, reserved for the Virginia troops on continental establishment. (Journals, IX. 47-49.) Subsequently, the act of cession was altered, so as to admit of the formation of not more than five, nor less than three States, of a size more convenient than that described in the act of cession and in the resolve of October 10, 1780. (Journals, XI. 139, 140. July 9, 1786.) [311] April 23, 1784. Journals, IX. 153. [312] April 23, 1784. Journals, IX. 153. [313] April 29, 1784. Journals, IX. 184. [314] This proposition was introduced by Rufus King, March 16, 1785, and was committed by the votes of _eight_ States against _four_. [315] April 19, 1785. [316] May 20, 1785. [317] September 14, 1786. Journals, XI. 221-223. The deed of cession, and the act of Connecticut recited in it, do not disclose this reservation. The territory ceded is described by certain lines which include less than the whole claim of Connecticut. It appears from the Journals, under the date of May 22-26, 1786, and from various propositions considered between those dates, that the State of Connecticut claimed to own a larger extent of territory than she proposed to cede; and by way of compromise, her claim was so far acceded to, that Congress agreed to accept of a cession of less than the whole. The reservation embraced about six millions of acres. See Sparks's Washington, IX. 178, note, where it appears that the right of the State to this territory was considered very feeble at the time. [318] July 9, 1786. [319] December 30, 1788. [320] August 9, 1789. [321] That of North Carolina was made February 25, 1790, and that of Georgia, April 24, 1802. [322] See Mr. Madison's notes of the Debates in the Confederation. Elliot, V. 128, 157, 190, 211, 376, 381. [323] His recommendation contemplated a survey of James River and the Potomac, from tide-water to their respective sources; then to ascertain the best portage between those rivers and the streams capable of improvement which run into the Ohio; then to traverse and survey those streams to their junction with the Ohio; then, passing down the Ohio to the mouth of the Muskingum, to ascend that river to the carrying-place to the Cuyahoga; then down the Cuyahoga to Lake Erie, and thence to Detroit. He also advised a survey of Big Beaver Creek, and of the Scioto, and of all the waters east and west of the Ohio, which invited attention by their proximity and the ease of land transportation between them and the James and Potomac Rivers. "These things being done," he said, "I shall be mistaken if prejudice does not yield to facts, jealousy to candor, and finally, if reason and nature, thus aided, do not dictate what is right and proper to be done." (Writings of Washington, IX. 65.) This suggestion was adopted, and a commission appointed. [324] Writings, IX. 63, 117-119. August 22, 1785. [325] Article II. Journals, IX. 26. [326] Executed November 30, 1782. Secret Journals, III. 338. [327] Article VIII. Journals, IX. 29. [328] June 25, 1784. Communicated to Congress November 19, 1784. Secret Journals, III. 517, 518. [329] Guardoqui arrived and was recognized July 2, 1785. Secret Journals, III. 563. [330] August 25, 1785. Secret Journals, III. 585, 586. [331] See the communication made by Mr. Jay to Congress, August 3, 1786. Secret Journals, IV. 43. [332] Henry Lee, then in Congress, wrote to Washington on the 3d of July, 1786, as follows: "Your reasoning is perfectly conformable to the prevalent doctrine on that subject in Congress. We are very solicitous to form a treaty with Spain for commercial purposes. Indeed, no nation in Europe can give us conditions so advantageous to our trade as that kingdom. The carrying business they are like ourselves in, and this common source of difficulty in adjusting commercial treaties between other nations does not apply to America and Spain. But, my dear General, I do not think you go far enough. Rather than defer longer a free and liberal system of trade with Spain, why not agree to the exclusion of the Mississippi? This exclusion will not, cannot, exist longer than the infancy of the Western emigrants. Therefore, to these people what is now done cannot be important. To the Atlantic States it is highly important; for we have no prospect of bringing to a conclusion our negotiations with the court of Madrid, but by yielding the navigation of the Mississippi. Their Minister here is under positive instructions on that point. In all other arrangements, the Spanish monarch will give to the States testimonies of his regard and friendship. And I verily believe, that, if the above difficulty should be removed, we should soon experience the advantages which would flow from a connection with Spain." (Writings of Washington, IX. 173, note.) [333] Washington's Writings, IX. 205, 206, note. [334] Washington had not changed his opinion, at the time of these negotiations. On the 18th of June, 1786, he wrote to Henry Lee, in answer to his letter above quoted: "The advantages with which the inland navigation of the rivers Potomac and James is pregnant, must strike every mind that reasons upon the subject; but there is, I perceive, a diversity of sentiment respecting the benefits and consequences which may flow from the free and immediate use of the Mississippi. My opinion of this matter has been uniformly the same; and no light in which I have been able to consider the subject is likely to change it. It is, neither to relinquish nor to push our claim to this navigation, but in the mean while to open _all_ the communications which Nature has afforded between the Atlantic States and the Western territory, and to encourage the use of them to the utmost. In my judgment, it is matter of very serious concern to the well-being of the former to make it the interest of the latter to trade with them; without which, the ties of consanguinity, which are weakening every day, will soon be no bond, and we shall be no more, a few years hence, to the inhabitants of that country, than the British and Spaniards are at this day; not so much, indeed, because commercial connections, it is well known, lead to others, and united are difficult to be broken. These must take place with the Spaniards, if the navigation of the Mississippi is opened. Clear I am, that it would be for the interest of the Western settlers, as low down the Ohio as the Big Kenhawa, and back to the Lakes, to bring their produce through one of the channels I have named; but the way must be cleared, and made easy and obvious to them, or else the ease with which people glide down streams will give a different bias to their thinking and acting. Whenever the new States become so populous and so extended to the westward as really to need it, there will be no power which can deprive them of the use of the Mississippi. Why, then, should we prematurely urge a matter which is displeasing, and may produce disagreeable consequences, if it is our interest to let it sleep? It may require some management to quiet the restless and impetuous spirits of Kentucky, of whose conduct I am more apprehensive in this business than I am of all the opposition that will be given by the Spaniards." (IX. 172, 173.) On the 26th of July of the same year, he again wrote to the same gentleman, expressing the same opinions; and on the 31st of October, he said that these sentiments "are controverted by only one consideration of weight, and that is, the operation which the occlusion of the river may have on the minds of the Western settlers, who will not consider the subject in a relative point of view, or on a comprehensive scale, and may be influenced by the demagogues of the country to acts of extravagance and desperation, under the popular declamation, that their interests are sacrificed." In July, 1787, he retained the same views as to the true policy of the different sections of the country interested in this question, but admitted that, from the spirit manifested at the West, it had become a moot point to determine, when every circumstance was brought into view, what was best to be done. (IX. 172, 180, 205, 261.) [335] See Mr. Jay's reasoning, Secret Journals, IV. 53, 54. [336] August 29, 1786. Secret Journals, IV. 109, 110. The States which voted to rescind these instructions were New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, and Maryland; Virginia, North and South Carolina, and Georgia, voted not to rescind. Another resolution was carried on the following day (August 30), by the votes of seven States, instructing the Secretary to insist on the territorial limits or boundaries of the United States, as fixed in the Treaty with Great Britain, and not to form any treaty with the Spanish Minister, unless those boundaries were acknowledged and secured. Ibid. 111-116. [337] This agreement was made between the 29th of August, the date of the rescinding resolution, and the 6th of October, 1786. See Mr. Jay's communication to Congress under the latter date, Secret Journals, IV. 297-301. [338] This seizure was made on the 6th of June, 1786. Secret Journals, IV. 325. [339] See the documents laid before Congress, April 13, 1787. Secret Journals, IV. 315-328. On the 30th of January, 1787, Mr. Jefferson thus writes to Mr. Madison, from Paris: "If these transactions give me no uneasiness, I feel very differently at another piece of intelligence, to wit, the possibility that the navigation of the Mississippi may be abandoned to Spain. I never had any interest westward of the Alleghany; and I never will have any. But I have had great opportunities of knowing the character of the people who inhabit that country; and I will venture to say, that the act which abandons the navigation of the Mississippi is an act of separation between the Eastern and Western country. It is a relinquishment of five parts out of eight of the territory of the United States; an abandonment of the fairest subject for the payment of our public debts, and the chaining those debts on our own necks, _in perpetuam_. I have the utmost confidence in the honest intentions of those who concur in this measure; but I lament their want of acquaintance with the character and physical advantages of the people, who, right or wrong, will suppose their interests sacrificed on this occasion to the contrary interests of that part of the Confederacy in possession of present power. If they declare themselves a separate people, we are incapable of a single effort to retain them. Our citizens can never be induced, either as militia or as soldiers, to go there to cut the throats of their own brothers and sons, or rather, to be themselves the subjects instead of the perpetrators of the parricide. Nor would that country quit the cost of being retained against the will of its inhabitants, could it be done. But it cannot be done. They are able already to rescue the navigation of the Mississippi out of the hands of Spain, and to add New Orleans to their own territory. They will be joined by the inhabitants of Louisiana. This will bring on a war between them and Spain; and that will produce the question with us, whether it will not be worth our while to become parties with them in the war, in order to reunite them with us, and thus correct our error. And were I to permit my forebodings to go one step further, I should predict that the inhabitants of the United States would force their rulers to take the affirmative of that question. I wish I may be mistaken in all these opinions." (Jefferson, II. 87.) [340] Secret Journals, IV. 311-313. [341] February 28, 1787. [342] Madison. Elliot's Debates, V. 97. [343] These instructions were adopted in November, 1786. Pitkin, II. 207. They were laid before Congress, April 19, 1787. Madison. Elliot's Debates, V. 103. [344] Henry Lee did not approve of this policy. See Washington's Works, IX. 205, note. [345] See Madison's account of two interviews with Guardoqui, March 13 and 19, 1787. Elliot, V. 98, 100. At the first of these interviews, Guardoqui stated that he had had no conference with Mr. Jay since the previous October, and never expected to confer with him again. [346] April 18, 1787. Madison. Elliot, V. 102. On the next day (April 19) the instructions of Virginia were laid before Congress, but a motion to refer them also to the Secretary was lost, Massachusetts and New York voting against it, and Connecticut being divided. Ibid. When Mr. Jay's report came under consideration, Mr. Gorham of Massachusetts, according to Madison, avowed his opinion, that the shutting of the Mississippi would be advantageous to the Atlantic States, and wished to see it shut. Ibid. 103. [347] Article IX. [348] Madison. Elliot, V. 104, 105. [349] Ibid. [350] September 16, 1788. Secret Journals, IV. 449-454. CHAPTER VI. 1783-1787. DECAY AND FAILURE OF THE CONFEDERATION.--PROGRESS OF OPINION.--STEPS WHICH LED TO THE CONVENTION OF 1787.--INFLUENCE AND EXERTIONS OF HAMILTON.--MEETING OF THE CONVENTION. The prominent defects in the Confederation, which have been described in the previous chapters, and which were so rapidly developed after the treaty of 1783, made it manifest, that a mere league between independent States, with no power of direct legislation, was not a government for a country like this, in a time of peace. They showed, that this compact between the States, without any central arbiter to declare or power to enforce the duties which it involved, could not long continue. It had, indeed, answered the great purpose of forming the Union, by bringing the States into relations with each other, the continuance of which was essential to liberty; since nothing could follow the rupture of those relations but the reëstablishment of European power, or the native despotism which too often succeeds to civil commotion. By creating a corporate body of confederate States, and by enabling them to go into the money-markets of Europe for the means of carrying on and concluding the war, the Confederation had made the idea and the necessity of a Union familiar to the popular mind. But the purposes and objects of the war were far less complex and intricate than the concerns of peace. It was comparatively easy to borrow money. It was another thing to pay it. The federal power, under the Confederation, had little else to do, before the peace, than to administer the concerns of an army in the field, and to attend to the foreign relations of the country, as yet not complicated with questions of commerce. But the vast duties, capable of being discharged by no other power, which came rapidly into existence before the creation of the machinery essential to their performance, exhibited the Confederation in an alarming attitude. It was found to be destitute of the essence of political sovereignty,--the power to compel the individual inhabitants of the country to obey its decrees. It was a system of legislation for States in their corporate and collective capacities, and not for the individuals of whom those States were composed. It could not levy a dollar by way of impost or assessment upon the property of a citizen. It had no means of annulling the action of a State legislature, which conflicted with the lawful and constitutional requirements of Congress. It made treaties, and was forced to stand still and see them violated by its own members, for whose benefit they had been made. It owed an enormous debt, and saw itself, year by year, growing more and more unable to liquidate even the annually increasing interest. It stood in the relation of a protector to the principles of republican liberty on which the institutions of the States were founded, and on the first occurrence of danger, it stretched forward only a palsied arm, to which no man could look for succor. It undertook to rescue commerce from the blighting effects of foreign policy, and failed to achieve a single conspicuous and important advantage. Every day it lost something of respect abroad and of confidence at home, until all men saw, with Washington, that it had become a great shadow without the substance of a government; while few could even conjecture what was to rise up and supplant it. Few men could see, amidst the decay of empire and the absolute negation of all the vital and essential functions of government, what was to infuse new life into a system so nearly effete. Yet the elements of strength existed in the character of the people; in the assimilation, which might be produced, in the lapse of years, by a common language, a common origin, and a common destiny;--in the almost boundless resources of the country;--and, above all, in the principles of its ancient local institutions, that were capable, to an extent not then conceived, of expansion and application to objects of far greater magnitude than any which they had yet embraced. Through what progress of opinion the people of this country were enabled to grasp and combine these elements into a new system, which could satisfy their wants, we must now inquire. In this inquiry, the student of political history should never fail to observe, that the great difficulty of the case, which made it so complex and embarrassing, arose from the separate, sovereign, and independent existence of the States. The formation of new constitutions, in countries not thus divided, involves only the adaptation of new institutions and forms to the genius, the laws, and the habits of the people. The monarchy of France has, in our day, been first remodelled, and afterwards swept from the face of Europe, to be followed by a republican constitution, which has in its turn been crushed and superseded. But France is a country that has long been subjected to as complete and powerful a system of centralization as has existed anywhere since the most energetic period of the Roman empire; and whether its institutions of government have or have not needed to be changed, as they have been from time to time, those changes have been made in a country in which an entire political unity has greatly facilitated the operation. In the United States, on the contrary, a federal government was to be created; and it was to be created for thirteen distinct communities;--a government that should not destroy the political sovereignties of the States, and should yet introduce a new sovereignty, formed by means of powers, whose surrender by the States, instead of weakening their present strength, would rather develop and increase it. This peculiar difficulty may be constantly traced, amidst all the embarrassments of the period in which the fundamental idea of the Constitution was at length evolved. The progress of opinion and feeling in this country, on the subject of its government, from the peace of 1783 to the year 1787, may properly be introduced by a brief statement of the political tendencies of two principal classes of men. All contemporary evidence assures us that this was a period of great pecuniary distress, arising from the depreciation of the vast quantities of paper money issued by the Federal and State governments; from rash speculations; from the uncertain and fluctuating condition of trade; and from the great amount of foreign goods forced into the country as soon as its ports were opened. Naturally, in such a state of things, the debtors were disposed to lean in favor of those systems of government and legislation which would tend to relieve or postpone the payment of their debts; and as such relief could come only from their State governments, they were naturally the friends of State rights and State authority, and were consequently not friendly to any enlargement of the powers of the Federal Constitution. The same causes which led individuals to look to legislation for irregular relief from the burden of their private contracts, led them also to regard public obligations with similar impatience. Opposed to this numerous class of persons were all those who felt the high necessity of preserving inviolate every public and private obligation; who saw that the separate power of the States could not accomplish what was absolutely necessary to sustain both public and private credit; and they were as naturally disposed to look to the resources of the Union for these benefits, as the other class were to look in an opposite direction. These tendencies produced, in nearly every State, a struggle, not as between two organized parties, but one that was all along a contest for supremacy between opposite opinions, in which it was at one time doubtful to which side the scale would turn.[351] The three most important centres of opinion in the Union, before the formation of the Constitution, were Massachusetts, Virginia, and New York.[352] The public proceedings of each of them, in the order of time, on the subject of enlarging the federal powers, are, therefore, important to a just understanding of the course of events which ended in the calling of the Convention. The legislature of Massachusetts was assembled in the summer of 1785. The proposal of Congress, made to the States in 1784, to grant the power of regulating trade, had been responded to by only four of the States, and the negotiations in Europe were failing from the want of it. Great uneasiness and distress pervaded all the commercial classes, and extended to every other class capable of being affected by a state of things in which a large balance, occasioned by the extravagant importation and use of foreign manufactures, was thrown against the country. The money of the State was rapidly drawn off to meet this balance, which its other exhausted means of remittance could not satisfy. It was impossible for the State to recover its former prosperity, while Great Britain and other nations continued the commercial systems which they had adopted. It had become plain to the comprehension of all intelligent persons concerned in trade, that nothing could break up those systems so long as the United States were destitute of the same power to regulate their foreign trade, by admitting or excluding foreign vessels and cargoes according to their interests; and it needed only the popular expression of this palpable truth, enforced by a clear and decided executive message, to induce the legislature to act upon it.[353] Governor Bowdoin gave the necessary impulse, and suggested the appointment of special delegates from the States to settle and define the powers with which Congress ought to be invested.[354] This message caused the adoption of the first resolution, passed by the legislature of any State, declaring the Articles of Confederation to be inadequate to the great purposes which they were originally designed to effect, and recommending a convention of delegates from all the States, for the purpose of revising them, and reporting to Congress how far it might be necessary to alter or enlarge the powers of the Federal Union, in order to secure and perpetuate its primary objects. Congress was requested by these resolves to recommend such a convention. A letter, urging the importance of the subject, was addressed by the Governor of Massachusetts to the President of Congress, and another to the executive of each of the other States. The resolves were also inclosed to the delegates of the State in Congress, with instructions to lay them before that body at the earliest opportunity, and to make every exertion to carry them into effect.[355] They were, however, never presented to Congress. That body was wholly unprepared for such a step, and the delegation of Massachusetts were entirely opposed to it, as premature. It had been all along the policy of Congress to obtain only a grant of temporary power over commerce, and to this policy they were committed by their proposition, now pending with the legislatures of the States, and by the instructions of the commissioners whom they had sent to Europe to negotiate commercial treaties. The prevalent idea in Congress was, that at the expiration of fifteen years,--the period for which they had asked the States to grant them power over commerce,--a new commercial epoch would commence, when the States would have a more clear and comprehensive view of their interests, and of the best means for promoting them, whether by treaties abroad, or by the delegation and exercise of greater power at home. It was argued, also, that the most safe and practicable course was, to grant temporary power in the first instance, and to leave the question of its permanent adoption as a part of the Confederation to depend on its beneficial effects. Another objection, which afterwards caused serious difficulty, was, that the Articles of Confederation contained no provision for their amendment by a convention, but that changes should originate in Congress and be confirmed by the State legislatures, and that, if the report of a convention should not be adopted by Congress, great mischiefs would follow. But a deep-seated jealousy in Congress of the radical changes likely to be made in the system of government lay at the foundation of these objections. There was an apprehension that the Convention might be composed of persons favorable to an aristocratic system; or that, even if the members were altogether republican in their views, there would be great danger of a report which would propose an entire remodelling of the government. The delegation from Massachusetts, influenced by these fears, retained the resolutions of the State for two months, and then replied to the Governor's letter, assigning these as their reasons for not complying with the directions given to them.[356] The legislature of Massachusetts thereupon annulled their resolutions recommending a Convention.[357] It is manifest from this occurrence, that Congress in 1785 were no more in a condition to take the lead and conduct the country to a revision of the Federal Constitution, than they were in 1783, when Hamilton wished to have a declaration made of its defects, and found it impracticable. There were seldom present more than five-and-twenty members; and, at the time when Massachusetts proposed to call upon them to act upon this momentous subject, the whole assembly embraced as little eminent talent as had ever appeared in it. They were not well placed to observe that something more than "the declamation of designing men" was at work, loosening the foundations of the system which they were administering.[358] They saw some of its present inconveniences; but they did not see how rapidly it was losing the confidence of the country, of which the following year was destined to deprive it altogether. Before the year 1785 had closed, however, Virginia was preparing to give the weight of her influence to the advancing cause of reform. A proposition was introduced into the House of Delegates of Virginia, to instruct the delegates of the State in Congress to move a recommendation to all the States to authorize Congress to collect a revenue by means of duties uniform throughout the United States, for a period of thirteen years.[359] The absolute necessity for such a system was generally admitted; but, as in Massachusetts, the opinions of the members were divided between a permanent grant of power and a grant for a limited term. The advocates of the limitation, arguing that the utility of the measure ought to be tested by experiment, contended, that a temporary grant of commercial powers might be and would be renewed from time to time, if experience should prove its efficacy. They forgot that the other powers granted to the Union, on which its whole fabric rested, were perpetual and irrevocable; and that the first sacrifices of sovereignty made by the States had been the result of circumstances which imperatively demanded the surrender, just as the situation of the country now demanded a similar surrender of an irrevocable power over commerce. The proposal to make this grant temporary only, was a proposal to engraft an anomaly upon the other powers of the Confederacy, with very little prospect of its future renewal; for the caprice, the jealousy, and the diversity of interests of the different States, were obstacles which the scheme of a temporary grant could only evade for the present, leaving them still in existence when the period of the grant should expire. But the arguments in favor of this scheme prevailed, and the friends of the more enlarged and liberal system, believing that a temporary measure would stand afterwards in the way of a permanent one, and would confirm the policy of other countries founded on the jealousies of the States, were glad to allow the subject to subside, until a new event opened the prospect for a more efficient plan.[360] The citizens of Virginia and Maryland, directly interested in the navigation of the rivers Potomac and Pocomoke, and of the Bay of Chesapeake, had long been embarrassed by the conflicting rights and regulations of their respective States; and, in the spring of 1785, an effort at accommodation was made, by the appointment of commissioners on the part of each State to form a compact between them for the regulation of the trade upon those waters. These commissioners assembled at Alexandria in March, and while there made a visit at Mount Vernon, where a further scheme was concerted for the establishment of harmonious commercial regulations between the two States.[361] This plan contemplated the appointment of other commissioners, having power to make arrangements, with the assent of Congress, for maintaining a naval force in the Chesapeake, and also for establishing a tariff of duties on imports, to be enacted by the legislatures of both the States. A report, embracing this recommendation, was accordingly made by the Alexandria commissioners to their respective governments. In the legislature of Virginia this report was received while the proposition for granting temporary commercial powers to Congress was under consideration; and it was immediately followed by a resolution directing that part of the plan which respected duties on imports to be communicated to all the States, with an invitation to send deputies to the meeting. In a few days afterwards, the celebrated resolution of Virginia, which led the way to the Convention at Annapolis, was adopted by the legislature, directing the appointment of commissioners to meet with the deputies of all the other States who might be appointed for the same purpose, to consider the whole subject of the commerce of the United States.[362] The circular letter which transmitted this resolution to the several States proposed that Annapolis in the State of Maryland should be the place, and that the following September should be the time of meeting. The fate of this measure now turned principally upon the action of the State of New York. The power of levying a national impost, proposed in the revenue system of 1783, had been steadily withheld from Congress by the legislature of that State. Ever since the peace, the State had been divided between two parties, the friends of adequate powers in Congress, and the adherents of State sovereignty; and the belief that the commercial advantage of the State depended upon retaining the power to collect their own revenues, had all along given to the latter an ascendency in the legislature. In 1784, they established a custom-house and a revenue system of their own. In 1785, a proposition to grant the required powers to Congress was lost in the Senate; and in 1786, it became necessary for Congress to bring this question to a final issue. Three other States, as we have seen, stood in the same category with New York, having decided in favor of no part of the plan which Congress had so long and so repeatedly urged upon their adoption.[363] Declaring, therefore, that the crisis had arrived when the people of the United States, by whose will and for whose benefit the federal government was instituted, must decide whether they would support their work as a nation, by maintaining the public faith at home and abroad, or whether, for want of a timely exertion in establishing a general revenue system, and thereby giving strength to the Confederacy, they would hazard the existence of the Union and the privileges for which they had contended,--Congress left the responsibility of the decision with the legislatures of the States.[364] It was now that the influence of Hamilton upon the destinies of this country began to be favored by the events which had brought its affairs to the present juncture. To his sagacious and watchful forecast, the proposal of a commercial convention, emanating from Virginia, presented the opportunity which he had long desired, to effect an entire change in the system of the federal government; while, at the same time, the final appeal made by Congress for the establishment of the revenue system gave him an occasion to bring the State of New York into the movement which had been originated by Virginia. He determined that this system should be again presented to the legislature, for distinct approval or rejection, and that, if it should be rejected, the State should still send a representation to the Convention at Annapolis. He therefore caused the revenue system, as proposed by Congress, to be again brought before the legislature, where it was again rejected; and he and his friends then threw their whole influence in favor of the appointment of commissioners to attend the commercial convention, and succeeded,--Hamilton himself being appointed one of them.[365] This great step having been taken, the course of the State of New York upon the revenue system of 1783, which brought her at length to an open controversy with Congress, tended strongly to aid the plans of Hamilton, and finally gave him the ascendency in the State itself. The legislature, in May, 1786, passed an act for granting imposts and duties to the United States, and soon afterwards adjourned. It was immediately pronounced by Congress not to be a compliance with their recommendation, and the Governor was earnestly requested to reassemble the legislature. This he declined to do, upon the ground of a want of constitutional power. Congress again urged the summoning of the legislature, for the purpose of granting the system of impost in such a manner as to enable them to carry it into effect, and the Governor again refused.[366] Arrived at Annapolis, Hamilton found there the representatives of five States only.[367] He had come with the determination that the Convention should lay before the country the whole subject of the condition of the States and the want of an efficient federal government. But the avowed purpose of the meeting was solely to consider the means of establishing a uniform system of commercial regulations, and not to reform the existing government of the Union. New Jersey alone, of the five States represented, had empowered her commissioners to consider of "other important matters," in addition to the subject of commercial regulations. Four other States had appointed commissioners, none of whom had attended; and the four remaining States had made no appointments at all.[368] Under these circumstances, it was certainly a matter of great delicacy for the commissioners of five States only to pass upon the general situation of the Union, and to pronounce its existing government defective and insufficient. Hamilton, however, felt that this opportunity, once lost, might never occur again; and although willing to waive his original purpose of a full exposition of the defects of the Confederation, he did not deem it expedient that the Convention should adjourn without proposing to the country some measure that would lead to the necessary reforms. He modified his original plan, therefore, and laid before his colleagues a report, which formally proposed to the several States the assembling of a general convention, to take into consideration the situation of the United States. In this document, it was declared that the regulation of trade, which had been made the object of the meeting at Annapolis, could not be effected alone, for the power of regulating commerce would enter so far into the general system of the federal government, that it would require a corresponding adjustment of the other parts of the system. That the system of the general government was seriously defective; that those defects were likely to be found greater on a close inspection; that they were the cause of the embarrassments which marked the state of public affairs, foreign and domestic; and that some mode by which they could be peaceably supplied was imperatively demanded by the public necessities,--were propositions which the country was then prepared to receive. A convention of deputies from the different States, for the special and sole purpose of investigating the defects of the national government, seemed to be the course entitled to preference over all others.[369] It was indeed the only method by which the object of the great statesman who drafted this report could have been reached. The Articles of Confederation had provided, that they should be inviolably observed by every State; that the Union should be perpetual; and that no alteration should be made in any of the Articles, unless agreed to in a Congress of the United States, and confirmed by the legislature of every State.[370] To have left the whole subject to the action of Congress would have insured, at most, only a change in some of the features of the existing government, instead of the great reform which Hamilton believed to be essential,--the substitution of a totally different system. At the same time, the coöperation and assent of Congress were necessary to the success of the plan of a convention, in order that it might not seem to be a violent departure from the provisions of the Articles of Confederation, and also for the sake of their influence with the States. The proposal of the report was therefore cautious. It did not suggest the summoning of a convention to frame a new constitution of government, but "to devise such further provisions as might appear to be necessary to render the constitution of the federal government adequate to the exigencies of the Union." It proposed also, that whatever reform should be agreed on by the convention should be reported to Congress, and, when agreed to by them, should be confirmed by the _legislatures_ of all the States. In this manner, the proposal avoided any seeming violence to the Articles of Confederation, and suggested the convention as a body to prepare for the use of Congress a plan to be adopted by them for submission to the States.[371] At the same time, Hamilton undoubtedly contemplated more than any amendment of the existing constitution. In 1780, he had analyzed the defects of the general government, sketched the outline of a Federal Constitution, and suggested the calling of a convention to frame such a system.[372] The idea of such a convention was undoubtedly entertained, by many persons, before the meeting at Annapolis. It had been recommended by the legislature of New York in 1782, and by that of Massachusetts in 1785. But Hamilton had foreseen its necessity in 1780, more than seven years before the meeting at Annapolis; and, although he may not have been the author of the first public proposal of such a measure, his private correspondence contains the first suggestion of it, and proves that he had conceived the main features of the Constitution of the United States, even before the Confederation itself was established.[373] The recommendation of the Annapolis commissioners was variously received. In the legislature of Virginia it met with a cordial approval, and an act was passed during the autumn to provide for the appointment of delegates to the proposed convention. In Congress, it was received at first with little favor. Doubts were entertained there whether any changes in the federal government could be constitutionally made, unless they were to originate in Congress and were then to be adopted by the legislatures of the States, pursuant to the mode provided by the Articles of Confederation. The legislatures, it was argued, could not adopt any scheme that might be proposed by a convention; and if it were submitted to the people, it was not only doubtful what degree of assent on their part would make it valid, but it was also doubtful whether they could change the Federal Constitution by their own direct action. To these difficulties was to be added the further hazard, that, if the report of the convention should be made to Congress, as proposed, they might not finally adopt it, and if it should be rejected, that fatal consequences would ensue.[374] The report of the Annapolis commissioners was, however, taken into consideration; and in the course of the following winter a report upon it was made in Congress, which conceded the fact that the Confederation required amendments, and that the proposed convention was the most eligible mode of effecting them.[375] But this report had to encounter the objection, entertained by many members, that the measure proposed would tend to weaken the federal authority, by lending the sanction of Congress to an extra-constitutional proceeding. Others considered that a more summary mode of proceeding was advisable, in the form of a direct appeal to the people of every State to institute State conventions, which should choose delegates to a general convention, to revise and amend, or change, the federal system, and to publish the new constitution for general observance, without any reference to the States, for their acceptance or confirmation.[376] There were still others, who preferred that Congress should take up the defects of the existing system, point them out to the legislatures of the States, and recommend certain distinct alterations to be adopted by them.[377] It was no doubt true, that a convention originating with the State legislatures was not a mode pointed out by the Articles of Confederation for effecting amendments to that instrument. But it was equally true, that the mere amendment of that instrument was not what the critical situation of the country required. On the other hand, a convention originating with the people of the States would undoubtedly rest upon the authority of the people, in its inception; but, if the system which it might frame were to go into operation without first being adopted by the people, it would as certainly want the true basis of their consent. These difficulties were felt in and out of Congress. But it does not seem to have occurred to those who raised them, that the source from which the convention should derive its powers to frame and recommend a new system of government was of far less consequence, than that the mode in which the system recommended should be adopted, should be one that would give it the full sanction and authority of the people themselves. A constitution might be framed and recommended by any body of individuals, whether instituted by the legislatures or by the people of the States; but if adopted and ordained by the States in their corporate capacities, it would rest on one basis, and if adopted and ordained by the people of the States, acting upon it directly and primarily, it would obviously rest upon another, a different, and a higher authority. The latter mode was not contemplated by Congress when they acted upon the recommendation of the Annapolis commissioners. Accustomed to no other idea of a union than that formed by the States in their corporate capacities as distinct and sovereign communities; belonging to a body constituted by the States, and therefore officially related rather to the governments than to the people of the States; and entertaining a becoming and salutary fear of departing from a constitution which they had been appointed to administer,--the members of the Congress of 1786-87 were not likely to go beyond the Annapolis recommendation, which in fact proposed that the new system should be confirmed by the legislatures of the States. But the course of events tended to a different result,--to an actual, although a peaceable revolution, by the quiet substitution of a new government in place of the old one, and resting upon an entirely different basis. While Congress were debating the objections to a convention, the necessity for action became every day more stringent. The insurrection in Massachusetts, which had followed the meeting of the commissioners at Annapolis and had reached a dangerous crisis when their report was before Congress, had alarmed the people of the older States by the dangers of an anarchy with which the existing national government would be obviously unable to cope. The peril of losing the navigation of the Mississippi, and with it the Western settlements, through the inefficiency of Congress, was also at that moment impending; while, at the same time, the commerce of the country was nearly annihilated by a course of policy pursued by England, which Congress was utterly unable to encounter. Under these dangers and embarrassments, a state of public opinion was rapidly developed, in the winter of 1787, which drove Congress to action. The objections to the proposal before them yielded gradually to the stern requirements of necessity, and a convention was at last accepted, not merely as the best, but as the only practicable, mode of reaching the first great object by which an almost despairing country might be reassured of its future welfare. The final change in the views of Congress in regard to a convention was produced by the action of the legislature of New York. In that body, as we have seen, the impost system had been rejected, in the session of 1786, and the Governor of the State had even refused to reassemble the legislature for the reconsideration of this subject. A new session commenced in January, 1787, in the city of New York, where Congress was also sitting. A crisis now occurred, in which the influence of Hamilton was exerted in the same manner that it had been in the former session, and with a similar result. On that occasion he had followed up the rejection of the impost system with a resolve for the appointment of commissioners to attend the meeting at Annapolis. It was now his purpose, in case the impost system should be again rejected, to obtain the sanction of Congress to the recommendation of a convention, made by the Annapolis commissioners. This, he was aware, could be effected only by inducing the legislature of New York to instruct the delegates of their State in Congress to move and vote for that decisive measure. The majority of the members of Congress were indisposed to adopt the plan of a convention; and although they might be brought to recommend it at the instance of a State, they were not inclined to do so spontaneously.[378] The crisis required, therefore, all the address of Hamilton and of the friends of the Union, to bring the influence of one of these bodies to bear upon the other. The reiterated recommendation by Congress of the impost system, now addressed solely to the State of New York, who remained alone in her refusal, necessarily occupied the earliest attention of the new legislature.[379] A warm discussion upon a bill introduced for the purpose of effecting the grant as Congress had asked for it, ended, on the 15th of February, in its defeat. The subject of a general convention of the States, according to the plan of the Annapolis commissioners, was then before Congress, on the report of a grand committee;[380] and Congress were hesitating upon its expediency. At this critical juncture, Hamilton carried a resolution in the legislature of New York, instructing the delegates of that State in Congress to move for an act recommending the States to send delegates to a convention for the purpose of revising the Articles of Confederation, which, four days afterwards, was laid before Congress.[381] Virginia and North Carolina had already chosen delegates to the Convention, in compliance with the recommendation from Annapolis; and Massachusetts was about to make such an appointment, under the influence of her patriotic Bowdoin. In this posture of affairs, although the proposition of the New York delegation failed to be adopted,[382] the fact that she had thus solicited the action of Congress was of decisive influence, when the members from Massachusetts followed it immediately by a resolve more acceptable to a majority of the assembly.[383] The recommendation, as it went forth from Congress, was strictly limited to a revision of the Articles of Confederation, by a convention of delegates, and the alterations and new provisions were to be reported to Congress, and were to be agreed to in Congress and confirmed by the States. Thus the resolution pursued carefully the mode of amendment and alteration provided by the Articles of Confederation, except that it interposed a convention for the purpose of originating the changes to be proposed in the existing form of government; adding, however, the great general purpose of rendering the Federal Constitution adequate to the exigencies of government and the preservation of the Union. The point thus gained was of vast and decisive importance. That Congress should forego the right of originating changes in the system of government;[384] that it should advise the States to confer that power upon another assembly; and that it should sanction a general revision of the Federal Constitution, with the express declaration of its present inadequacy,--were all preliminaries essential to a successful reform. Feeble as it had become from the overgrown vitality of State power, and from the lack of numbers and talent upon its roll, it was still the government of the Union; the Congress of America; the lineal successors of that renowned assembly which had defied the power of England, and brought into existence the thirteen United States. If it stood but the poor shadow of a great name, it was still a name with which to do more than conjure; for it bore a constitutional relation to the States, still reverenced by the wise and thoughtful, and still necessary to be regarded by all who desired the security of constitutional liberty. The risk of immediate attempts to establish a monarchical form of government was not inconsiderable. The risk that civil confusion would follow a longer delay to provide for the pressing wants of the country was greater. Dejection and despondency had taken hold of many minds of the highest order; while the great body of the people were desiring a change which they could not define, and which they feared, while they invited its approach. In such a state of things, considerate men were naturally unwilling to turn entirely away from Congress, or to exclude its agency altogether from the processes of reform, and to embark upon the uncertain sea of political experiment, without chart or rule to guide their course; for no man could tell what projects, what schemes, and what influences might arise to jeopard those great principles of republican liberty on which the political fabric had rested from the Declaration of Independence to the present hour of danger and distress. For the wise precedent, thus established, of placing the formation of a new government under the direct sanction of the old one, the people of this country are indebted chiefly to Hamilton. Nothing can be more unfortunate, in any country, than the necessity or the rashness which sweeps away an established constitution, before a substitute has been devised. Whether the interval be occupied by provisional arrangements or left to a more open anarchy, it is an unfit season for the creation of new institutions. At such a time, the crude projects of theorists are boldly intruded among the deliberations of statesmen; despotism lies in wait for the hazards by which liberty is surrounded; the multitude are unrestrained by the curb of authority; and society is exposed to the necessity of accepting whatever is offered, or of submitting to the first usurper who may seize the reins of government, because it has nothing on which to rest as an alternative. True liberty has gained nothing, in any age or country, from revolutions, which have excluded the possibility of seeking or obtaining the assent of existing power to the reforms which the progress of society demands. In the days when the Confederation was tottering to its fall; when its revenues had been long exhausted; and when its Congress embraced, in actual attendance, less than thirty delegates from only eleven of the States, it would have been the easy part of a demagogue to overthrow it by a sudden appeal to the passions and interests of the hour, as the first step to a radical change.[385] But the great man, whose mature and energetic youth, trained in the school of Washington, had been devoted to the formation and establishment of the Union, knew too well, that, if its golden cord were once broken, no human agency could restore it to life. He knew the value of habit, the respect for an established, however enfeebled authority; and while he felt and insisted on the necessity for a new constitution, and did all in his power to make the country perceive the defects of the old one, he wisely and honestly admitted that the assent of Congress must be gained to any movement which proposed to remedy the evil. But the reason for not moving the revision of the system of government by Congress itself was one that could not be publicly stated. It was, that the highest civil talent of the country was not there. The men to whom the American people had been accustomed to look in great emergencies,--the men who were called into the Convention, and whose power and wisdom were signally displayed in its deliberations,--were then engaged in other spheres of public life, or had retired to the repose which they had earned in the great struggle with England. Had the attempt been made by Congress itself to form a constitution for the acceptance of the States, the controlling influence and wisdom of Washington, Franklin's wide experience and deep sagacity, the unrivalled capacities of Hamilton, the brilliant powers of Gouverneur Morris, Pinckney's fertility, and Randolph's eloquence, with all the power of their eminent colleagues and all the strength of principle and of character which they brought to the Convention, would have been withheld from the effort. One great man, it is true, was still there. Madison was in Congress; and Madison's part in the framing of the Constitution was eminently conspicuous and useful. But without the concentration of talent which the Convention drew together, representing every interest and every part of the Union, nothing could have been presented to the States, by the Congress of 1787, which would have commanded their assent. The Constitution owed as much, for its acceptance, to the weight of character of its framers, as it did to their wisdom and ability, for the intrinsic merits which that weight of character enforced. It was fortunate, also, that Congress did nothing more than to recommend the Convention, without undertaking to define its powers. The doubts concerning its legality, which led many persons of great influence to hesitate in sanctioning it, were thus removed, and the States were left free to join in the movement, as an expedient to discover and remedy the defects of the federal government, without fettering their delegates with explicit instructions.[386] In this way the Convention, although experimental and anomalous, derived its influence from the sources in which it originated, and was enabled, though not without difficulty, to meet the crisis in which the country was placed. That crisis was one of a singular character; for the continued existence of the Union, and the fate of republican governments, were both involved. It was felt and admitted by the wisest men of that day, that if the Convention should fail in devising and agreeing upon some system of government, at once capable of pervading the country with an efficient control, and essentially republican in its form, the Federal Union would be at an end. But its dissolution, in the state in which the country then was, must have been followed by an attempt to establish monarchical government; because the State institutions were destitute of the strength necessary to encounter the agitation which would have followed the downfall of the federal power, and yet some substitute for that power must have been found. But without civil war, and the most frightful social convulsions, nothing in the nature of monarchy could ever have been established in this country after the Revolution. "Those who lean to a monarchical government," said Washington, "have either not consulted the public mind, or they live in a region which (the levelling principles in which they were bred being entirely eradicated) is much more productive of monarchical ideas than is the case in the Southern States, where, from the habitual distinctions which have always existed among the people, one would have expected the first generation and the most rapid growth of them. I am also clear, that, even admitting the utility, nay, necessity, of the form, the period is not arrived for adopting the change without shaking the peace of this country to its foundation. That a thorough reform of the present system is indispensable, no one, who has a capacity to judge, will deny; and with hand and heart I hope the business will be essayed in a full convention. After which, if more powers and more decision are not found in the existing form, if it still wants energy and that secrecy and despatch (either from the non-attendance or the local views of its members) which are characteristic of good government, and if it shall be found (the contrary of which, however, I have always been more afraid of than the abuse of them) that Congress will, upon all proper occasions, exert the powers which are given with a firm and steady hand, instead of frittering them back to the States, where the members, in place of viewing themselves in their national character, are too apt to be looking,--I say, after this essay is made, if the system proves inefficient, conviction of the necessity of a change will be disseminated among all classes of the people. Then, and not till then, in my opinion, can it be attempted without involving all the evils of civil discord."[387] There were other difficulties besides those which may be called legal, or technical, attending this effort to revise the system of the federal government. The failure of that system, as it had been put in operation in 1781, had, to a great extent, chilled the hopes of many of the best statesmen of America. It had been established under auspices which seemed to promise far different fruits from those it had actually produced. Its foundations were laid in the patriotism and national feeling of the States. The concessions which had been made to secure a union of republics, having various, and, in some respects, conflicting interests, seemed at first to guarantee the prompt and faithful performance of its obligations. But this fair promise had melted into most unsubstantial performance. The Confederation was framed upon a principle which never has enabled, and probably never will enable, a government to become effective and permanent,--the principle of a league. Another and a very serious cause for discouragement was the sectional jealousy and State pride which had been constantly growing, from the Declaration of Independence to the time when the States were called upon to meet each other upon broader grounds, and to make even larger sacrifices than at any former period. It is difficult to trace to all its causes the feeling which has at times arrayed the different extremities of this Union against each other. It was very early developed, after the different provinces were obliged to act together for their great mutual objects of political independence; but, even in its highest paroxysms, it has always at last found an antidote in the deeper feelings and more sober calculations of a consistent patriotism. Perhaps its prevalence and activity may with more truth be ascribed, in every generation, to the ambition of men who find in it a convenient instrument of local influence, rather than to any other cause. It is certain, that, when it has raged most violently, this has been its chief aggravating element. The differences of neither manners, institutions, climate, nor pursuits would at any time have been sufficient to create the perils to which the Union of the States has occasionally been exposed, without the mischievous agency of men whose personal objects are, for the time, subserved by the existence of such peculiarities. The proof of this is to be found in the fact, that the seasonable sagacity of the people has always detected the motives of those who have sought to employ their passions, and has compelled them at last to give way to that better order of men who have appealed to their reason. The difficulty of getting the assent of all the States to radical changes in the federal system, and the uncertainty as to the mode in which such changes could be effectively adopted, were also among the reasons which led many persons to regard the Convention as an experiment of doubtful expediency. The States had hitherto acted only in their corporate capacities, in all that concerned the formation and modification of the Union. The idea of a Union founded on the direct action of the people of the States, in a primary sense, and proceeding to establish a federal government, of limited powers, in the same manner in which the people of each State had established their local constitutions, had not been publicly broached, and was not generally entertained. Indeed, there was no expectation on the part of any State, when the delegates to the Convention were appointed, that any other principle would be adopted as the basis of action, than that by which the Articles of Confederation contemplated that all changes should be effected by the action of the States assembled in Congress, confirmed by the unanimous assent of the different State legislatures. The prevailing feeling, among the higher statesmen of the country, was, that the Convention was an experiment of doubtful tendency, but one that must nevertheless be tried. Washington, Madison, Jay, Knox, Edmund Randolph, have all left upon record the evidence of their doubts and their fears, as well as of their convictions of the necessity for this last effort in favor of the preservation of a republican form of government.[388] Hamilton advanced to meet the crisis, with perhaps less hesitation than any of the Revolutionary statesmen. His great genius for political construction; his large knowledge of the means by which a regulated liberty may be secured; and the long study with which he had contemplated the condition of the country, led him to enter the Convention with more of eagerness and hope than most of its members. He saw, with great clearness, that the difficulty which embarrassed nearly all his contemporaries--the question of the mode of enacting a new constitution--was capable of solution. He did not propound that solution in advance of the assembling of the Convention; for it was eminently necessary that the States should not be alarmed by the suggestion of a principle so novel and so unlike the existing theory of the Union. But he was fully prepared to announce it, so soon as it could be received and acted upon. * * * * * It was under such auspices and with such views that the Convention assembled at Philadelphia, on the fourteenth day of May in the year seventeen hundred and eighty-seven. At that time, the world had witnessed no such spectacle as that of the deputies of a nation, chosen by the free action of great communities, and assembled for the purpose of thoroughly reforming its constitution, by the exercise, and with the authority, of the national will. All that had been done, both in ancient and in modern times, in forming, moulding, or modifying constitutions of government, bore little resemblance to the present undertaking of the States of America. Neither among the Greeks nor the Romans was there a precedent, and scarcely an analogy. The ancient leagues of some of the cities or republics of Greece did not amount to constitutions, in the sense of modern political science; and the Roman republic was but the domination of a single race of the inhabitants of a single city. In modern Europe, we find no trace of political science until after the nations were divided, and partial limits set to the different orders and powers of the state. The feudal system, which acknowledged no relations in society but those of lord and serf, necessarily forbade all consideration of any forms of government which were not essentially founded on that relation; and it was not until that relation had been in some degree broken in upon, that there began to be any thing like theoretical inquiries into natural rights. When this took place,--at the end, or towards the end, of the Middle Ages,--the peculiar forms of the European governments gave rise to inquiries into the relation of sovereign and subject. From the beginning of the fifteenth down to the end of the seventeenth century, there were occasional discussions on the Continent, growing out of particular events, of such questions as the right of the people to depose bad princes, and how far it was lawful to resist oppression. But questions of constitutional form, or of the right of the people to arrange and distribute the different powers of government, or the best mode of doing it, did not arise at all. In England, from the time of the Conquest, until Magna Charta had gone far towards destroying the system, a feudal monarchy had precluded all questions touching the form or the spirit of government. The chief traits of the present constitution, which arose in a great measure from the circumstance that the lower orders of the nobility became gradually so much amalgamated with the people as to give rise to the distinct power of the commons, have all along been inconsistent with the enactment of new forms of civil polity; although from the time of the Reformation to the Revolution of 1688, the active principles of English freedom have, at different junctures, made advances of the utmost importance. The foundations on which the Stuarts sought to establish their throne were directly at variance with the spirit and principles of the Reformation, which totally denied the doctrine of passive and unlimited obedience, and which led to the struggles that gave birth to the Puritans. Those severe reformers, whose church constitution was purely republican, naturally sought to carry its principles into the state. The result was the Parliamentary troubles of James the First, the execution of Charles the First under the forms of judicial proceeding, and the despotism of Cromwell under the forms of a commonwealth. Charles the Second returned, untaught by all that had happened, to attempt the reëstablishment of the Stuart principles of unlimited obedience; and James the Second, who naturally united to them the Catholic religion, being driven from his kingdom, the question arose of a vacant throne, and how it should be filled. In all these events, however, from the death of Elizabeth to the great discussions which followed the abdication of James the Second, the idea of calling upon the people of England to frame a government of their own choice, and to define the limits and powers of its various departments, never arose. The Convention Parliament discussed, and were summoned to discuss, but a single fundamental question,--that involving the disposal of the crown. Still, the political troubles of England gave rise to many theoretical discussions of natural right, and of the origin and structure of society. As soon as Charles the First was executed, this discussion arose abroad, from his friends, who wrote, or influenced others to write, in defence of the divine right of kings. Hobbes and Filmer followed, in England, on the same side, and Milton, Locke, and Algernon Sidney vindicated the natural and inalienable rights of the subject and the citizen. In the works of these great writers, the foundations of society are examined with an acuteness which has left little to be done in the merely speculative part of political inquiry. But the practical effect of their theories never went farther than the promotion, to a greater or less extent, of the particular views which they desired to inculcate concerning the existing constitution, or the particular events out of which the discussions arose. Nor should we forget what had been done in France, by the wise and cautious Montesquieu, or by the vehement and passionate Rousseau, and the writers of his school. The former, drawing all his views from history and experience, undertook to show, from the antecedents of each state, the character of its constitution, to explain and develop its peculiar properties, and thence to determine the principles on which its legislation should proceed. The latter, starting from an entirely opposite point, and designing to write a treatise on Politics in the widest sense of the term, became a mere theorist, and produced only certain brilliant speculations upon the social compact, of a purely democratic character, as fragments of a work which he never finished. The crowd of writers, too, who preceded, and in part created the French Revolution, which was just commencing its destructive activity as our Constitution was formed, really contributed nothing of practical value to the solution of such great questions as the mode of forming, vesting, and distributing the various branches of sovereign power. Thus there was little for American statesmen of that day to look to, in the way of theories which had been practically proved to be sound and useful. The constitution of England, it is true, presented to them certain great maxims, the application of which was not unsuited to the circumstances and habits of a people whose laws and institutions had been derived from their English ancestors and their English blood. But the constitution of England, embracing the three estates of King, Lords, and Commons, had become what it was, only by the extortion from the crown of the rights and privileges of the two orders of the people. The American Revolution, on the other hand, had settled, as the fundamental principle of American society, that all sovereignty resides originally in the people; that they derive no rights by way of grant from any other source; and consequently, that no powers or privileges can exist in any portion of the people as distinct from the whole. The English constitution could, therefore, furnish only occasional analogies for particular details in the structure of departments, which might after all really require to be founded on different fundamental principles. But the great problem to be solved--for which English experience was of no value--was, so to parcel out those portions of original sovereignty, which the people of the States might be willing to withdraw from their State institutions, as to constitute an efficient federal republic, which yet would not control and absorb the powers that might be reserved. But to comprehend the results that were accomplished, and to understand the true nature of the system bequeathed to us, it is indispensable to examine in detail the means and processes by which it was formed. Before we turn, however, to this great subject, the characters of the principal framers of the Constitution demand our attention. FOOTNOTES: [351] "The war, as you have very justly observed," General Washington wrote to James Warren of Massachusetts, in October, 1785, "has terminated most advantageously for America, and a fair field is presented to our view; but I confess to you, my dear Sir, that I do not think we possess wisdom or justice enough to cultivate it properly. Illiberality, jealousy, and local policy mix too much in all our public counsels for the good government of the Union. In a word, the Confederation appears to me to be little more than a shadow without the substance, and Congress a nugatory body, their ordinances being little attended to. To me it is a solecism in politics; indeed, it is one of the most extraordinary things in nature, that we should confederate as a nation, and yet be afraid to give the rulers of that nation (who are the creatures of our own making, appointed for a limited and short duration, and who are amenable for every action and may be recalled at any moment, and are subject to all the evils which they may be instrumental in producing) sufficient powers to order and direct the affairs of the same. By such policy as this, the wheels of government are clogged, and our brightest prospects, and that high expectation which was entertained of us by the wondering world, are turned into astonishment; and, from the high ground on which we stood, we are descending into the vale of confusion and darkness. "That we have it in our power to become one of the most respectable nations upon earth, admits, in my humble opinion, of no doubt, if we would but pursue a wise, just, and liberal policy towards one another, and keep good faith with the rest of the world. That our resources are ample and increasing, none can deny; but while they are grudgingly applied, or not applied at all, we give a vital stab to public faith, and shall sink, in the eyes of Europe, into contempt. "It has long been a speculative question among philosophers and wise men, whether foreign commerce is of real advantage to any country; that is, whether the luxury, effeminacy, and corruptions which are introduced along with it are counterbalanced by the convenience and wealth which it brings. But the decision of this question is of very little importance to us. We have abundant reason to be convinced that the spirit of trade which pervades these States is not to be repressed. It behooves us, then, to establish just principles; and this cannot, any more than other matters of national concern, be done by thirteen heads differently constructed and organized. The necessity, therefore, of a controlling power, is obvious; and why it should be withheld is beyond my comprehension." Writings, IX. 139-141. [352] They are named in this order, because it represents the order in which they respectively acted upon the enlargement of the federal powers. [353] One of the necessary and immediate effects of the Revolution of course was, the loss of the exclusive commercial advantages which this country had enjoyed with Great Britain and her dependencies; and the prohibitory acts and impositions, which fell with their full weight on the American trade, after the peace, were particularly disastrous to the trade of Massachusetts. The whale fishery, a business of great importance, had brought into the Province, before the war, 172,000 guineas per annum, giving employment to American seamen, and not requiring the use of any foreign materials, except a small quantity of cordage. A duty was now laid on whale oil in England of £18 per tun. In addition to the loss thus sustained, the exportation of lumber and provisions in American bottoms to the West Indies was entirely prohibited. Another great inconvenience, which came in fact to be intolerable, was the vast influx of British goods, consigned to English factors for sale, depriving the native merchants, manufacturers, and artisans of the market. At the same time, the revenue of the State, derived from impost and excise duties and a tax on auctions of one per cent., fell short of the annual interest on the private debt of the State, 30,000 pounds (currency) per annum, and a tax of 20,000 pounds (currency) was computed to be necessary to cancel the debt, principal and interest, in fifteen years, and pay the ordinary charges of the government. Besides this, the State's proportion of the federal debt was to be provided for. It was in this state of things that two remarkable popular meetings were held in Boston, in the spring of 1785, to act upon the subject of trade and navigation, and to call the attention of Congress to the necessity for a national regulation of commerce. The first was a meeting of the merchants and tradesmen, convened at Faneuil Hall on the 18th of April. They appointed a committee to draft a petition to Congress, representing the embarrassments under which the trade was laboring, and took measures to cause the legislature to call the attention of the delegation in Congress to the importance of immediate action upon the subject. They also established a committee of correspondence with the merchants in the other seaports of the United States, to induce a similar action; and they entered into a pledge not to purchase any goods of the British merchants and factors residing in Boston, who had made very heavy importations, which tended to drain the specie of the State. The other meeting was an assembly of the artisans and mechanics, held at the Green Dragon Tavern, on the 28th of April, at which similar resolutions were adopted. It is quite apparent, from these proceedings, that all branches of industry were threatened with ruin; and in the efforts to counteract the effects of the great influx of foreign commodities, we trace the first movements of a popular nature towards a national control over commerce. [354] Governor Bowdoin's first Message to the Legislature, May 31, 1785. [355] July 1, 1785. [356] The delegation at that time consisted of Elbridge Gerry, Samuel Holten, and Rufus King. Their "Reasons assigned for suspending the delivery to Congress of the Governor's letter for revising and altering the Confederation" may be found in the Life of Hamilton, II. 353. See also Boston Magazine for 1785, p. 475. [357] November 25, 1785. [358] Letter of Messrs. Gerry, Holten, and King, delegates in Congress, to the Governor of Massachusetts, assigning reasons for suspending the delivery of his letter to Congress, dated September 3, 1785. Life of Hamilton, II. 353, 357. "We are apprehensive," said they, "and it is our duty to declare it, that such a measure would produce throughout the Union an exertion of the friends of an aristocracy to send members who would promote a change of government; and we can form some judgment of the plan which such members would report to Congress. But should the members be altogether republican, _such have been the declamations of designing men_ against the Confederation generally, against the rotation of members, which, perhaps, is the best check to corruption, and against the mode of altering the Confederation by the unanimous consent of the legislatures, which effectually prevents innovations in the articles by intrigue or surprise, that we think there is great danger of a report which would invest Congress with powers that the honorable legislature have not the most distant intention to delegate." [359] November 30th, 1785. [360] The resolution introduced on the 30th of November was agreed to in the Delegates, but before it was carried up to the Senate, it was reconsidered and laid upon the table. Elliot's Debates, I. 114, 115. Letter of Mr. Madison to General Washington, of December 9, 1785, Washington's Works, IX. 508. [361] What direct agency General Washington had in suggesting or promoting this scheme, does not appear; although it seems to have originated, or to have been agreed upon, at his house. His published correspondence contains no mention of the visit of the commissioners; but Chief Justice Marshall states that such a visit was made, and in this statement he is followed by Mr. Sparks. (Marshall, V. 90; Sparks, I. 428.) Mr. Madison, writing to General Washington in December, 1785, refers to "the proposed appointment of commissioners for Virginia and Maryland, _concerted at Mount Vernon_, for keeping up harmony in the commercial regulations of the two States," and says that the meeting of commissioners from all the States, which had then been proposed, "seems naturally to grow out of it." (Washington's Writings, IX. 509.) That Washington foresaw that the plan agreed upon at his house in March would lead to a general assembly of representatives of all the States, seems altogether probable, from the opinions which he entertained and expressed to his correspondents, during that summer, upon the subject of conferring adequate commercial powers upon Congress. (See his Letters to Mr. McHenry and Mr. Madison of August 22d and November 30th, Writings, IX. 121, 145.) [362] This resolution, passed January 21, 1786, was in these words: "_Resolved_, That Edmund Randolph, James Madison, Jr., Walter Jones, St. George Tucker, Meriweather Smith, David Ross, William Ronald, and George Mason, Esquires, be appointed commissioners, who, or any five of whom, shall meet such commissioners as may be appointed by the other States in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress assembled effectually to provide for the same; that the said commissioners shall immediately transmit to the several States copies of the preceding resolution, with a circular letter respecting their concurrence therein, and proposing a time and place for the meeting aforesaid." [363] Rhode Island, Maryland, and Georgia. [364] "The committee," said the Report, "have thought it their duty candidly to examine the principles of this system, and to discover, if possible, the reasons which have prevented its adoption; they cannot learn that any member of the Confederacy has stated or brought forward any objections against it, and the result of their impartial inquiries into the nature and operation of the plan has been a clear and decided opinion, that the system itself is more free from well-founded exceptions, and is better calculated to receive the approbation of the several States, than any other that the wisdom of Congress can devise. In the course of this inquiry, it most clearly appeared that the requisitions of Congress for eight years past have been so irregular in their operation, so uncertain in their collection, and so evidently unproductive, that a reliance on them in future, as a source from whence moneys are to be drawn to discharge the engagements of the Confederacy, definite as they are in time and amount, would be not less dishonorable to the understandings of those who entertain such confidence, than it would be dangerous to the welfare and peace of the Union. The committee are therefore seriously impressed with the indispensable obligation that Congress are under of representing to the immediate and impartial consideration of the several States, the utter impossibility of maintaining and preserving the faith of the federal government by temporary requisitions on the States, and the consequent necessity of an early and complete accession of all the States to the revenue system of the 18th of April, 1783." (Journals of Congress, XI. 35, 36. February 15, 1786.) [365] Life of Hamilton, II. 374, 375 [366] The legislature of New York were willing to grant the duties to Congress, but insisted upon reserving the power of levying and collecting them; and, instead of making the collectors amenable to and removable by Congress, they made them removable by the State, on conviction for default or neglect of duty in the State courts. This was a material departure from the plan recommended by Congress, and was entirely inconsistent with the grants already made by several of the States. See the Report and proceedings in Congress on the New York Act, July 27-August 23, 1786. Journals, XI. 153, 184, 197, 200. [367] New York was represented by Alexander Hamilton and Egbert Benson; New Jersey by Abraham Clark, William C. Houston, and James Schureman; Pennsylvania by Tench Coxe; Delaware by George Read, John Dickinson, and Richard Bassett; Virginia by Edmund Randolph (Governor), James Madison, Jr., and St. George Tucker. [368] General Knox, writing to General Washington under date of January 14, 1787, says: "You ask what prevented the Eastern States from attending the September meeting at Annapolis. It is difficult to give a precise answer to this question. Perhaps torpidity in New Hampshire; faction and heats about their paper money in Rhode Island; and jealousy in Connecticut. Massachusetts had chosen delegates to attend, who did not decline until very late, and the finding of other persons to supply their places was attended with delay, so that the convention had broken up by the time the new-chosen delegates had reached Philadelphia." Writings of Washington, IX. 513. [369] Report of the Annapolis Convention, Elliot's Debates, I. 116; Hamilton's Works, II. 336. [370] Article XIII. [371] Report, ut supra. [372] See his letter to James Duane, written in 1780, Life, I. 284-305. [373] Ibid. The first public proposal of a continental convention is assigned by Mr. Madison to one Pelatiah Webster, whom he calls "an able, though not conspicuous citizen," and who made this suggestion in a pamphlet published in May, 1781. Recent researches have not added to our knowledge of this writer. In the summer of 1782, the legislature of New York, under the suggestion of Hamilton, passed resolutions recommending such a convention. On the 1st of April, 1783, Hamilton, in a debate in Congress, expressed his desire to see a general convention take place. In 1784, the measure was a good deal talked of among the members of Congress, and in the winter of 1784-85, Noah Webster, an eminent political writer in Connecticut, suggested "a new system of government, which should act, not on the States, but directly on individuals, and vest in Congress full power to carry its laws into effect." In 1786, the subject was again talked of among members of Congress, before the meeting at Annapolis. (Madison. Elliot, V. 117, 118.) But Hamilton's letter to James Duane, in 1780, although not published at the time, was of course earlier than any of these suggestions. In that letter, after showing that the fundamental defect of the then existing system was a want of power in Congress, he thus analyzes in advance the Articles of Confederation, which had not then taken effect:--"But the Confederation itself is defective, and requires to be altered. It is neither fit for war nor peace. The idea of an uncontrollable sovereignty, in each State, over its internal police, will defeat the other powers given to Congress, and make our Union feeble and precarious. There are instances, without number, where acts necessary for the general good, and which rise out of the powers given to Congress, must interfere with the internal police of the States; and there are as many instances in which the particular States, by arrangements of internal police, can effectually, though indirectly, counteract the arrangements of Congress. You have already had examples of this, for which I refer to your own memory. The Confederation gives the States, individually, too much influence in the affairs of the army; they should have nothing to do with it. The entire foundation and disposal of our military forces ought to belong to Congress. It is an essential element of the Union; and it ought to be the policy of Congress to destroy all ideas of State attachment in the army, and make it look up wholly to them. For this purpose, all appointments, promotions, and provisions whatsoever ought to be made by them. It may be apprehended, that this may be dangerous to liberty. But nothing appears more evident to me, than that we run much greater risk of having a weak and disunited federal government, than one which will be able to usurp upon the rights of the people. Already some of the lines of the army would obey their States in opposition to Congress, notwithstanding the pains we have taken to preserve the unity of the army. If any thing would hinder this, it would be the personal influence of the general,--a melancholy and mortifying consideration. The forms of our State constitutions must always give them great weight in our affairs, and will make it too difficult to blind them to the pursuit of a common interest, too easy to oppose what they do not like, and to form partial combinations, subversive of the general one. There is a wide difference between our situation and that of an empire under one simple form of government, distributed into counties, provinces, or districts, which have no legislatures, but merely magistratical bodies to execute the laws of a common sovereign. There the danger is that the sovereign will have too much power, and oppress the parts of which it is composed. In our case, that of an empire composed of confederate states, each with a government completely organized within itself, having all the means to draw its subjects to a close dependence on itself, the danger is directly the reverse. It is, that the common sovereign will not have power sufficient to unite the different members together, and direct the common forces to the interest and happiness of the whole.... The Confederation, too, gives the power of the purse too entirely to the State legislatures. It should provide perpetual funds in the disposal of Congress, by a land-tax, poll-tax, or the like. All imposts upon commerce ought to be laid by Congress, and appropriated to their use; for without certain revenues, a government can have no power; that power which holds the purse-strings absolutely, must rule. This seems to be a medium which, without making Congress altogether independent, will tend to give reality to its authority. Another defect in our system is, want of method and energy in the administration. This has partly resulted from the other defect; but in a great degree from prejudice and the want of a proper executive. Congress have kept the power too much in their own hands, and have meddled too much with details of every sort. Congress is properly a deliberative corps, and it forgets itself when it attempts to play the executive. It is impossible that a body, numerous as it is, constantly fluctuating, can ever act with sufficient decision, or with system. Two thirds of the members, one half the time, cannot know what has gone before them, or what connection the subject in hand has to what has been transacted on former occasions. The members who have been more permanent will only give information that promotes the side they espouse, in the present case, and will as often mislead as enlighten. The variety of business must distract, and the proneness of every assembly to debate must at all times delay. Lastly, Congress, convinced of these inconveniences, have gone into the measure of appointing boards. But this is, in my opinion, a bad plan. A single man, in each department of the administration, would be greatly preferable. It would give us a chance of more knowledge, more activity, more responsibility, and, of course, more zeal and attention. Boards partake of the inconveniences of larger assemblies; their decisions are slower, their energy less, their responsibility more diffused. They will not have the same abilities and knowledge as an administration by single men. Men of the first pretensions will not so readily engage in them, because they will be less conspicuous, of less importance, have less opportunity of distinguishing themselves. The members of boards will take less pains to inform themselves and arrive at eminence, because they have fewer motives to do it. All these reasons conspire to give a preference to the plan of vesting the great executive departments of the state in the hands of individuals. As these men will be, of course, at all times under the direction of Congress, we shall blend the advantages of a monarchy in one constitution.... I shall now propose the remedies which appear to me applicable to our circumstances, and necessary to extricate our affairs from their present deplorable situation. The first step must be to give Congress powers competent to the public exigencies. This may happen in two ways: one, by resuming and exercising the discretionary powers I suppose to have been originally vested in them for the safety of the States, and resting their conduct on the candor of their countrymen and the necessity of the conjuncture; the other, _by calling immediately a convention of all the States_, with full authority to conclude finally upon a general confederation, stating to them beforehand explicitly the evils arising from a want of power in Congress, and the impossibility of supporting the contest on its present footing, that the delegates may come possessed of proper sentiments, as well as proper authority, to give efficacy to the meeting. _Their commission should include a right of vesting Congress with the whole or a proportion of the unoccupied lands, to be employed for the purpose of raising a revenue, reserving the jurisdiction to the States by whom they are granted._ The Confederation, in my opinion, should give Congress a complete sovereignty; except as to that part of internal police which relates to the rights of property and life among individuals, and to raising money by internal taxes. It is necessary that every thing belonging to this should be regulated by the State legislatures. Congress should have complete sovereignty in all that relates to war, peace, trade, finance; and to the management of foreign affairs; the right of declaring war, of raising armies, officering, paying them, directing their motions in every respect; of equipping fleets, and doing the same with them; of building fortifications, arsenals, magazines, &c.; of making peace on such conditions as they think proper; of regulating trade, determining with what countries it shall be carried on; granting indulgences; laying prohibitions on all the articles of export or import; imposing duties, granting bounties and premiums for raising, exporting, or importing; and applying to their own use the product of these duties, only giving credit to the States on whom they are raised in the general account of revenues and expense; instituting admiralty courts, &c.; of coining money, establishing banks on such terms, and with such privileges, as they think proper; appropriating funds, and doing whatever else relates to the operations of finance; transacting every thing with foreign nations; making alliances offensive and defensive, and treaties of commerce, &c.... The second step I would recommend is, that Congress should instantly appoint the following great officers of state: a Secretary for Foreign Affairs; a President of War; a President of Marine; a Financier; a President of Trade.... These officers should have nearly the same powers and functions as those in France analogous to them, and each should be chief in his department, with subordinate boards, composed of assistants, clerks, &c., to execute his orders." (Life of Hamilton, I. 284-305.) [374] Abstract of an Address made to the Legislature of Massachusetts, by the Hon. Rufus King, in October, 1786. Boston Magazine for the year 1786, p. 406. [375] Mr. Madison's Notes of Debates in the Congress of the Confederation. Elliot, V. 96. [376] This was the opinion of Mr. Jay. He thought that no alterations should be attempted, unless deduced from the only source of just authority, the people. He seems to have considered that, if the people of the States, acting through their primary conventions, were to send delegates to a general convention, with authority to alter the Articles of Confederation, the new system would rest upon the authority of the people, without further sanction. See his letter to General Washington, of date January 7, 1787. Writings of Washington, IX. 510. [377] Letter of General Knox to General Washington, January 14, 1787. Writings of Washington, IX. 513. [378] Madison. Elliot, V. 96. [379] It was brought before them by the speech of the Governor (Clinton), informing them of the resolutions of Congress, which had requested an immediate call of the legislature to consider the revenue system, "a subject," he observed, "which had been repeatedly submitted to them, and must be well understood." [380] Journals, XII. 15. February 21, 1787. [381] Ibid. The vote rejecting the impost bill was taken on the 15th of February. The resolution of instructions was passed on the 17th, and was laid before Congress on the 21st. [382] Mr. Madison has recorded the suspicions with which this resolution of the New York legislature was received. Their previous refusal of the impost act, and their known anti-federal tendencies, gave rise, he says, to the belief that their object was to obtain a convention without having it called under the authority of Congress, or else, by dividing the plans of the States in their appointments of delegates, to frustrate them all. (Madison. Elliot, V. 96.) But whatever grounds there might have been for either of these suspicions, the latter certainly was not well founded. The New York resolution was drafted by Hamilton, and although it was passed by a body in which a majority had not exhibited a disposition to enlarge the authority of Congress, it was manifestly not intended to prevent the adoption of the plan of a convention. It contemplated the passage by Congress of an act, recommending the States to institute a convention of representatives of the States to revise the Articles of Confederation; and the resolution introduced by the New York delegation into Congress proposed that the alterations and amendments which the convention might consider necessary to render the Articles of Confederation "adequate to the preservation and support of the Union," should be reported to Congress and to the States respectively, but did not direct how they should be adopted. This would have left open a great question, and seemed to be a departure from the mode in which the Articles of Confederation directed that amendments should be made. Probably it was Hamilton's intention to leave the form in which the new system should be adopted for future action, without fettering the movement by prescribing the mode before the convention had assembled. But this course was practically impossible. Congress could not be prevailed upon to recommend a convention, without making the condition that the new provisions should be reported to Congress and confirmed by the States. This gave rise to great embarrassment in the convention, when it came to be admitted that the Confederation must be totally superseded, and not _amended_; and it was finally disregarded. But it was the only mode in which the convention could have been recommended by Congress, and without that recommendation, probably, it could not have been instituted. [383] The resolution introduced by the Massachusetts delegation, when that of New York had been rejected, after being amended, was finally passed in the following terms: "Whereas, there is provision in the Articles of Confederation and Perpetual Union for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such a convention appearing to be the most probable means of establishing in these States a firm national government, _Resolved_, That, in the opinion of Congress, it is expedient that, on the second Monday day in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." Journals, XII. 17. February 21, 1787. [384] The Articles of Confederation did not expressly require that amendments should be prepared and proposed in Congress. The thirteenth Article provided, that no alteration should be made, unless it should "be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State." But it was clearly implied by this, that Congress were to have the power of recommending alterations, and this power was exercised in 1783, with regard to the rule of apportionment. [385] Governor Randolph of Virginia writing to General Washington, on the 11th of March, 1787, and urging him to attend the Convention, said: "I must call upon your friendship to excuse me for again mentioning the Convention at Philadelphia. Your determination having been fixed on a thorough review of your situation, I feel like an intruder when I again hint a wish that you would join the delegation. But every day brings forth some new crisis, and the Confederation is, I fear, the last anchor of our hope. Congress have taken up the subject, and appointed the second Monday in May next as the day of meeting. _Indeed, from my private correspondence, I doubt whether the existence of that body, even through this year, may not be questionable under our present circumstances._" Sparks's Washington, IX. 243, note. [386] The States of Virginia, New Jersey, Pennsylvania, North Carolina, and Delaware had appointed their delegates to the Convention before it was sanctioned by Congress. Virginia led the way; and the following preamble to her act shows with what motives and objects she did so. "Whereas, the commissioners who assembled at Annapolis, on the 14th day of September last, for the purpose of devising and reporting the means of enabling Congress to provide effectually for the commercial interests of the United States, have represented the necessity of extending the revision of the federal system to all its defects, and have recommended that deputies for that purpose be appointed by the several legislatures, to meet in convention in the city of Philadelphia, on the 2d day of May next,--a provision which was preferable to a discussion of the subject in Congress, where it might be too much interrupted by the ordinary business before them, and where it would, besides, be deprived of the valuable counsels of sundry individuals who are disqualified by the constitution or laws of particular States, or restrained by peculiar circumstances from a seat in that assembly: And whereas the General Assembly of this Commonwealth, taking into view the actual situation of the Confederacy, as well as reflecting on the alarming representations made from time to time by the United States in Congress, particularly in their act of the 15th day of February last, can no longer doubt that the crisis is arrived at which the good people of America are to decide the solemn question, whether they will, by wise and magnanimous efforts, reap the just fruits of that independence which they have so gloriously acquired, and of that Union which they have cemented with so much of their common blood,--or whether, by giving way to unmanly jealousies and prejudices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the Revolution, and furnish to its enemies an eventful triumph over those by whose virtue and valor it has been accomplished: And whereas the same noble and extended policy, and the same fraternal and affectionate sentiments, which originally determined the citizens of this Commonwealth to unite with their brethren of the other States in establishing a federal government, cannot but be felt with equal force now as motives to lay aside every inferior consideration, and to concur in such further concessions and provisions as may be necessary to secure the great objects for which that government was instituted, and to render the United States as happy in peace as they have been glorious in war: _Be it therefore enacted_, &c., That seven commissioners be appointed, by joint ballot of both houses of Assembly, who, or any three of them, are hereby authorized as deputies from this Commonwealth to meet such deputies as may be appointed and authorized by other States, to assemble in convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union; and in reporting such an act, for that purpose, to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same." (Elliot, I. 132.) The instructions of New Jersey to her delegates were, "to take into consideration the state of the Union as to trade and other important objects, and of devising such other provisions as shall appear to be necessary to render the constitution of the federal government adequate to the exigencies thereof." (Ibid. 128.) The act of Pennsylvania provided for the appointment of deputies to join with the deputies of other States "in devising, deliberating on, and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution fully adequate to the exigencies of the Union, and in reporting such act or acts, for that purpose, to the United States in Congress assembled, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same." (Ibid. 130.) The instructions of Delaware were of the same tenor. (Ibid. 131.) The act of North Carolina directed her deputies "to discuss and decide upon the most effectual means to remove the defects of our Federal Union, and to procure the enlarged purposes which it was intended to effect; and that they report such an act to the General Assembly of this State, as, when agreed to by them, will effectually provide for the same." (Ibid. 135.) The instructions to the delegates of New Hampshire were of the same tenor. (Ibid. 126.) The appointment of the delegates of Massachusetts was made with reference to the terms of the resolve of Congress recommending the Convention, and for the purposes declared therein. (Ibid. 126, 127.) The appointment of Connecticut was made with the same reference, and with the further direction "to discuss upon such alterations and provisions, agreeably to the general principles of republican government, as they shall think proper to render the Federal Constitution adequate to the exigencies of government and the preservation of the Union; and they are further directed, pursuant to the said act of Congress, to report such alterations and provisions as may be agreed to by a majority of the United States represented in convention, to the Congress of the United States, and to the General Assembly of this State." (Ibid. 127.) The resolutions of New York, Maryland, South Carolina, and Georgia pursued nearly the same terms with the resolve of Congress. (Ibid. 127, 131, 136, 137.) [387] Sparks's Washington, IX. 223, 225, 230, 236, 508-520. [388] Sparks's Washington, IX. 223, 225, 230, 236, 508-520. CHAPTER VII. THE FRAMERS OF THE CONSTITUTION.--WASHINGTON, PRESIDENT OF THE CONVENTION. The narrative to which the reader has thus far attended must now be interrupted for a while, that he may pause upon the threshold of an assembly which had been summoned to the grave task of remodelling the constitution of this country, and here consider the names and characters of the men to whom its responsible labors had been intrusted. The civil deeds of statesmen and lawgivers, in establishing and forming institutions, incorporating principles into the forms of public administration, and setting up the defences of public security and prosperity, are far less apt to attract and hold the attention of mankind, than the achievements of military life. The name, indeed, may be for ever associated with the work of the hand; but the mass of mankind do not study, admire, or repeat the deeds of the lawgiver, as they do those of the hero. Yet he who has framed a law, or fashioned an institution in which some great idea is made practical to the conditions of human existence, has exercised the highest attributes of human reason, and is to be counted among the benefactors of his race. The framers of the Constitution of the United States assembled for their work amidst difficulties and embarrassments of an extraordinary nature. No general concert of opinion had taken place as to what was best, or even as to what was possible to be done. Whether it were wise to hold a convention, whether it were even legal to hold it, and whether, if held, it would be likely to result in any thing useful to the country, were points upon which the most opposite opinions prevailed in every State of the Union. But it was among the really fortunate, although apparently unhappy, circumstances under which they were assembled, that the country had experienced much trial, suffering, distress, and failure. It has been a disagreeable duty to describe the disasters and errors of a period during which the national character was subjected to the discipline of adversity. We now come to the period of compensation which such discipline inevitably brings. There is a law of the moral government of the universe, which ordains that all that is great and valuable and permanent in character must be the result, not of theoretical teaching, or natural aspiration,--of spontaneous resolve, or uninterrupted success,--but of trial, of suffering, of the fiery furnace of temptation, of the dark hours of disappointment and defeat. The character of the man is distinguishable from the character of the child that he once was, chiefly by the effects of this universal law. There are the same natural impulses, the same mental, moral, and physical constitution, with which he was born into the world. What is it that has given him the strength, the fortitude, the unchanging principle, and the moral and intellectual power, which he exhibits in after years? It has not been constant pleasure and success, nor unmingled joy. It has been the hard discipline of pain and sorrow, the stern teachings of experience, the struggle against the consequences of his own errors, and the chastisement inflicted by his own faults. This law pertains to all human things. It is as clearly traceable in its application to the character of a people, as to that of an individual; and as the institutions of a people, when voluntarily formed by them out of the circumstances of their condition, are necessarily the result of the previous discipline and the past teachings of their career, we can trace this law also in the creation and growth of what is most valuable in their institutions. When we have so traced it, the unalterable relations of the moral universe entitle us to look for the elements of greatness and strength in whatever has been the product of such teachings, such discipline, and such trials. The Constitution of the United States was eminently the creature of circumstances;--not of circumstances blindly leading the blind to an unconscious submission to an accident, but of circumstances which offered an intelligent choice of the means of happiness, and opened, from the experience of the past, the plain path of duty and success, stretching onward to the future. All that has been said in the previous chapters tends to illustrate this fact. We have seen the American people,--divided into separate and isolated communities, without nationality, except such as resulted from a general community of origin,--undertaking together the work of throwing off the domination of their parent state. We have seen them enter upon this undertaking without forming any political bond of a national character, and without instituting any proper national agency. We have seen, that the first government which they created was, practically, a mere general council for the recommendation of measures to be adopted and executed by the several constituencies represented. We have seen no machinery instituted for the accomplishment, by the combined authority of these separate communities, of the great objects at which they were aiming; and although in theory the Revolutionary Congress would have been entitled to assume and exercise the powers necessary to accomplish the objects for which it was assembled, we have seen that the people of the country, from a jealous and unreasonable fear of all power, would not permit this to be done. The consequences of this want of power were inevitable. An army could not be kept in the field, on a permanent footing, capable of holding the enemy in check. The city of New York fell into the hands of that enemy, the intermediate country between that city and the city of Philadelphia was overrun, and from the latter capital, the seat of the general government, the Congress was obliged to fly before the invading foe. Taught by these events that a more effective union was necessary to the deliverance of the country from a foreign yoke, the States at length united in the establishment of a government, the leading purpose of which was mutual defence against external attacks, and called it a Confederation. But its powers were so restricted, and its operations so clogged and impeded by State jealousies and State reservations of power, that it lacked entirely the means of providing the sinews of war out of the resources of the country, and was driven to foreign loans and foreign arms for the means of bringing that war to a close. A vast load of debt was thus accumulated upon the country; and, as soon as peace was established, it became apparent, that, while the Confederation was a government with the power of contracting debts, it was without the power of paying them. This incapacity revealed the existence of great objects of government, without which the people of the several States could never prosper, and which, in their separate capacities, the States themselves could never accomplish. Now it is as certain as history can make any thing, that the whole period, from the commencement of the war to the end of the Confederation, was a period of great suffering to the people of the United States. The trials and hardships of war were succeeded by the greater trials and hardships of a time of peace, in which the whole nation experienced that greatest of all social evils, the want of an efficient and competent government. There was a gloom upon the minds of men,--a sense of insecurity,--a consciousness that American society was not fulfilling the ends of its being by the development of its resources and the discharge of its obligations,--which constituted altogether a discipline and a chastisement of the whole nation, and which we are not at liberty to regard as the mere accidents of a world ungoverned by an overruling Power. It was from the midst of that discipline that the American people came to the high undertaking of forming for themselves a constitution, by which to work out the destiny of social life in this Western World. Had they essayed their task after years of prosperity, and after old institutions and old forms of government had, upon the whole, yielded a fair amount of success and happiness, they would have wanted that power which comes only from failure and disappointment,--the power to adapt the best remedy to the deepest social defects, and to lay hold on the future with the strength given by the hard teachings of the past. Civil liberty,--American liberty,--that liberty which resides in law, which is protected by great institutions and upheld by the machinery of a popular government,--is not simply the product of a desire, or a determination, to be free. Such liberty comes, if it comes at all, only after serious mistakes,--after frightful deficiencies have taught men that power must be lodged somewhere. It comes when a people have learned, by adversity and disappointment, that a total negation of all authority, and a jealousy of all restraint, can end only in leaving society without the defences and securities which nothing but law can raise for it. It comes when the passions are exhausted, and the rivalries of opposing interests have worn themselves out, in the vain endeavor to reach what reason and justice and self-sacrifice alone can procure. Then, and then only, is the intellect of a nation sure to operate with the fidelity and energy of its native power. Then only does it grasp the principles of freedom with the ability to incorporate them into the practical forms of a public administration whose strength and energy shall give them vitality, and prevent their diffusion into the vagueness of mere abstractions, which return to society the cold and mocking gift of a stone for its craving demand of bread. * * * * * The Convention was a body of great and disinterested men, competent, both morally and intellectually to the work assigned them. High qualities of character are requisite to the formation of a system of government for a wide country with different interests. Mere talent will not do it. Intellectual power and ingenuity alone cannot compass it. There must be a moral completeness in the characters of those who are to achieve such a work; for it does not consist solely in devising schemes, or creating offices, or parcelling out jurisdictions and powers. There must be adaptation, adjustment of conflicting interests, reconciliation of conflicting claims. There must be the recognition and admission of great expedients, and the sacrifice, often, of darling objects of ambition, or of local policy, to the vast central purpose of the greatest happiness of the greatest number. Hence it is, that, wherever this mighty work is to be successfully accomplished, there must be a high sense of justice; a power of concession; the qualities of magnanimity and patriotism; and that broad moral sanity of the intellect, which is farthest removed from fanaticism, intolerance, or selfish adhesion either to interest or to opinion. These qualities were preëminently displayed by many of the framers of the Constitution. There was certainly a remarkable amount of talent and intellectual power in that body. There were men in that assembly, whom, for genius in statesmanship, and for profound speculation in all that relates to the science of government, the world has never seen overmatched. But the same men, who were most conspicuous for these brilliant gifts and acquirements, for their profound theories and their acute perception of principles, were happily the most marked, in that assembly, for their comprehensive patriotism, their justice, their unselfishness and magnanimity. Take, for instance, Hamilton. Where, among all the speculative philosophers in political science whom the world has seen, shall we find a man of greater acuteness of intellect, or more capable of devising a scheme of government which should appear theoretically perfect? Yet Hamilton's unquestionable genius for political disquisition and construction was directed and restrained by a noble generosity, and an unerring perception of the practicable and the expedient, which enabled him to serve mankind without attempting to force them to his own plans, and without compelling them into his own views. Take Washington, whose peculiar greatness was a moral elevation, which secured the wisest and best use of all his powers in either civil or military life. Take Madison, who certainly lacked neither ability nor inclination for speculative inquiries, and who had a mind capable of enforcing the application of whatever principles he espoused. Yet his calm good sense, and the tact with which he could adapt theory to practice, were no less among his prominent characteristics. Take Franklin, who sometimes held extreme opinions, and occasionally pushed his peculiar fancies, springing from an excess of worldly wisdom, to the utmost verge of truth, but whose intellect was tempered, and whose whole character was softened, by the wide and varied experience of a life that had been commenced in obscurity, and was now closing with the honors of a reputation that filled the Eastern as well as the Western hemisphere. Take Gouverneur Morris, who was ardent, impulsive, and not disinclined to tenacity of opinion; but he rose above all local and narrow objects, and embraced, in the scope of his clear and penetrating vision, the happiness and welfare of this whole continent. It was a most fortunate thing for America, that the Revolutionary age, with its hardships, its trials, and its mistakes, had formed a body of statesmen capable of framing for it a durable constitution. The leading persons in the Convention which formed the Constitution had been actors, either in civil or military life, in the scenes of the Revolution. In those scenes their characters as American statesmen had been formed. When the condition of the country had fully revealed the incapacity of its government to provide for its wants, these men were naturally looked to, to construct a system which should save it from anarchy. And their great capacities, their high, disinterested purposes, their freedom from all fanaticism and illiberality, and their earnest, unconquerable faith in the destiny of their country, enabled them to found that government, which now upholds and protects the whole fabric of liberty in the States of this Union. Of course no such assembly, in that or in any other age, in this or in any other country, could be called together for such a purpose, without exhibiting a great diversity of opinions, wishes, and views. The very object for which they were assembled was of a nature to develop, to the fullest extent, the most conflicting opinions and the most opposite theories. That object was to devise a system which should best secure the permanent liberty and happiness of a vast country. What subject, in the whole range of human thought and human endeavor, could be more complex than this? What occasion, among all the diversities of human affairs, could present a wider field for honest differences of opinion, and for severe conflicts of mind with mind? Yet it should never be forgotten, as the merit of this assembly, that, collectively and individually, they were animated by the most pure and exclusive devotion to the object for which they were called together. It was this high patriotism, this deep and never-ceasing consciousness that the great experiment of republican liberty turned on the result of their labors, as on the hazard of a die, that brought at last all conflicts of interest, all diversities of opinion and feeling, into a focus of conciliation and unanimity. More than once the reader will find them on the point of separating without having accomplished any thing; and more than once he will see them recalled to their mighty task by the eloquence of some master-spirit, who knew how to touch the key-note of that patriotic feeling, which was never wholly lost in the jarring discords of debate and intellectual strife. For four months the laborious effort went on. The serene and unchanging presence of Washington presided over all. The chivalrous sincerity and disinterestedness of Hamilton pervaded the assembly with all the power of his fascinating manners. The flashing eloquence of Gouverneur Morris recalled the dangers of anarchy, which must be accepted as the alternative of an abortive experiment. The calm, clear, statesmanlike views of Madison, the searching and profound expositions of King, the prudent influence of Franklin, at length ruled the hour. In examining their work, and in reading all that is left to us of their discussions, we are to consider the materials out of which they had to frame a system of republican liberty, and the point of view, in reference to the whole subject, at which they stood. We are to remember how little the world had then seen of real liberty united with personal safety and public security; and how entirely novel the undertaking was, to form a complete system of government, wholly independent on tradition, exactly defined in a written constitution, to be created at once, and at once set in motion, for the accomplishment of the great objects of human liberty and social progress. The examples of Greece and Rome, the modern republics of Italy, the federal relations of the Swiss Cantons, and the distant approach to republicanism that had been seen in Holland, might be resorted to for occasional and meagre illustrations of a few general principles. But, unquestionably, the country which, up to that moment, had exhibited, by the working of its government, the greatest amount of liberty combined with the greatest public security, was England. England, however, was a monarchy; and monarchy was the system which they both desired, and were obliged, to avoid. If it was within the range of human possibility to establish a system of republican government, which would fulfil its appropriate duties, over this vast and rapidly extending country, _that_ they felt, one and all, to be their great task. On the other hand, they knew that, if to that form they could not succeed in giving due stability and wisdom, it would be, in the words of Hamilton, "disgraced and lost among ourselves, disgraced and lost to mankind for ever."[389] Here was their trial,--the difficulty of all their difficulties; and it was here that they exhibited a wisdom, a courage, and a capacity, which have been surpassed by no other body of lawgivers ever assembled in the world. Their country had, a few years before, passed through a long and distressing war with its parent state. The yoke of her domination had been thrown off, and its removal was naturally followed by a loosening of the bands of all authority, and an indisposition to all new restraints. The American Colonies had become independent States; and as the spirit of liberty which pervaded them made individuals impatient of control in their political relations, so the States reflected the same spirit in their corporate conduct, and looked with jealousy and distrust upon all powers which were not to be exercised by themselves. Yet it was clear that there were powers and functions of government, which, for the absolute safety of the country, must be withdrawn from the States, and vested in some national head, which should hold and exercise them in the name of the whole, for the good of the whole. The great question was, what that national head was to be; and the great service performed by the framers of the Constitution consisted in devising a system by which a national sovereignty might be endowed with energy, dignity, and power, and the forms and substance of popular liberty still be preserved; a system by which a supreme authority in all the matters which it touched might be created, resting directly on the popular will, and to be exercised, in all coming time, through forms and institutions under which that will should have a direct and perpetual and perpetually renewed expression. This they accomplished. They accomplished it, too, without abolishing the State governments, and without impairing a single personal right which existed before they began their work. They accomplished it without violence; without the disruption of a single fibre in that whole delicate tissue of which society is made up. No drop of blood was shed to establish this government, the work of their hands; and no moment of interruption occurred to the calm, even tenor of the pursuits of men,--the daily on-goings of society, in which the stream of human life and happiness and progress flows on in beneficence and peace. * * * * * First upon the list of those who had been called together for this great purpose, we are to mention him, without whose presence and countenance all men felt that no attempt to meliorate the political condition of the country could succeed. I have already given an account of the proceedings which led directly to the calling of the Convention; and have mentioned the interesting fact, that the impulse to those proceedings was given at Mount Vernon. Thither General Washington had retired, at the close of the war, with no thought of ever engaging again in public affairs. He supposed that for him the scene was closed. "The noontide of life," said he, in a letter to the Marchioness de Lafayette, "is now past, with Mrs. Washington and myself; and all we have to do is to glide gently down a stream which no human effort can ascend."[390] But wise and far-seeing as he was, he did not foresee how soon he was to be called from that grave and sweet tranquillity. He was busy with the concerns of his farm; he was tasting the happiness of home, from which he had been absent nine long years; he was "cultivating the affections of good men, and practising the domestic virtues." But it was not in his nature to be inattentive to the concerns of that country for whose welfare he had labored and suffered so much. He maintained an active correspondence with several of the most eminent and virtuous of his compatriots in different parts of the Union; and in that correspondence, running through the years 1784, 1785, and 1786, there exists the most ample evidence of the downward tendency of things, and of the fears it excited. It had become evident to him that we never should establish a national character, nor be justly considered and respected by the nations of Europe, without enlarging the powers of the federal government for the regulation of commerce. The objection which had been hitherto urged, that some States might be more benefited than others by a commercial regulation, seemed to him to apply to every matter of general utility. "We are," said he, writing in the summer of 1785, "either a united people under one head, and for federal purposes, or we are thirteen independent sovereignties eternally counteracting each other. If the former, whatever such a majority of the States as the constitution points out conceives to be for the benefit of the whole, should, in my humble opinion, be submitted to by the minority. Let the Southern States always be represented; let them act more in union; let them declare freely and boldly what is for the interest of, and what is prejudicial to, their constituents; and there will, there must be, an accommodating spirit. In the establishment of a navigation act, this, in a particular manner, ought and will doubtless be attended to. If the assent of nine States, or, as some propose, of eleven, is necessary to give validity to a commercial system, it insures this measure, or it cannot be obtained. "Wherein, then, lies the danger? But if your fears are in danger of being realized, cannot certain provisos in the ordinance guard against the evil? I see no difficulty in this, if the Southern delegates would give their attendance in Congress, and follow the example, if it should be set them, of adhering together to counteract combination. I confess to you candidly, that I can foresee no evil greater than disunion; than those unreasonable jealousies (I say _unreasonable_, because I would have a _proper_ jealousy always awake, and the United States on the watch to prevent individual States from infracting the constitution with impunity) which are continually poisoning our minds and filling them with imaginary evils for the prevention of real ones."[391] But, while he desired to see the ninth article of the Confederation so amended and extended as to give adequate commercial powers, he feared that it would be of little avail to give them to the existing Congress. The members of that body seemed to him to be so much afraid of exerting the powers which they already possessed, that they lost no opportunity of surrendering them, or of referring their exercise to the individual States. The speculative question, whether foreign commerce is of any real advantage to a country, he regarded as of no importance, convinced that the spirit of trade which pervaded these States was not to be restrained. It behooved us, therefore, to establish just principles of commercial regulation, and this could not, any more than other matters of national concern, be done by thirteen heads differently constructed and organized. The necessity, in fact, of a controlling power was obvious, and why it should be withheld was, he declared, beyond his comprehension. With these views, he looked to the Convention at Annapolis as likely to result in a plan which would give to the federal government efficient powers for all commercial purposes, although he regretted that more objects had not been embraced in the project for the meeting. The failure of this attempt to enlarge the commercial powers of Congress, and the recommendation of a general convention made by the Annapolis commissioners, placed the country in an extremely delicate situation. Washington thought, when this recommendation was announced, that the people were not then sufficiently misled to retract their error, and entertained some doubt as to the consequences of an attempt to revise and amend the Articles of Confederation. Something, however, must be done, he said, or the fabric which was certainly tottering, would inevitably fall. "I think," said he, "often of our situation, and view it with concern. From the high ground we stood upon, from the plain path which invited our footsteps, to be so fallen, so lost, is really mortifying; but virtue, I fear, has in a great degree taken its departure from our land, and the want of a disposition to do justice is the source of the national embarrassments; for, whatever guise or color is given to them, this I apprehend is the origin of the evils we now feel, and probably shall labor under for some time yet."[392] At this time the legislature of Virginia were acting upon the subject of a delegation to the Federal Convention, and a general wish was felt to place Washington at the head of it. No opposition had been made in that body to the bill introduced for the purpose of organizing and instructing such a delegation, and it was thought advisable to give the proceeding all the weight which could be derived from a single State. To a private intimation of this desire of the legislature he returned a decided refusal. Several obstacles appeared to him to put his attendance out of the question. The principal reason that he assigned was, that he had already declined a re-election as President of the Society of the Cincinnati, and had signified that he should not attend their triennial general meeting, to be held in Philadelphia in the same month with the Convention.[393] He felt a great reluctance to do any thing which might give offence to those patriotic men, the officers of the army who had shared with him the labors and dangers of the war. He had declined to act longer with that Society, because the motives and objects of its founders had been misconceived and misrepresented. Originally a charitable institution, it had come to be regarded as anti-republican in its spirit and tendencies. Desiring, on the one hand, to avoid the charge of deserting the officers who had nobly supported him, and had always treated him with the greatest attention and attachment; and wishing, on the other hand, not to be thought willing to give his support to an institution generally believed incompatible with republican principles,--he had excused his attendance upon the ground of the necessity of attending to his private concerns. He had, in truth, a great reluctance to appear again upon any public theatre. His health was far from being firm; he felt the need and coveted the blessing of retirement for the remainder of his days; and although some modifications of the Society whose first President he had been, were then allaying the jealousies it had excited, he withdrew from this, the last relation which had kept him in a conspicuous public position. But Washington at Mount Vernon, cultivating his estate, and rarely leaving his own farms, was as conspicuous to the country as if he were still placed in the most active and important public stations. All eyes were turned to him in this emergency; all thoughts were employed in considering whether his countenance and his influence would be given to this attempt to create a national government for the States whose liberties he had won. And his friends represented to him, that the posture of public affairs would prevent any criticism on the situation in which the contemporary meeting of the Cincinnati would place him, if he were to accept a seat in the Convention. Still, when the official notice of his appointment came, in December, he formally declined, but was requested by the Governor of the State to reserve his decision.[394] At this moment, the insurrection in Massachusetts broke upon him like a thunderbolt. "What, gracious God!" he exclaimed, "is man, that there should be such inconsistency and perfidiousness in his conduct! It was but the other day that we were shedding our blood to obtain the constitutions under which we now live,--constitutions of our own choice and making,--and now we are unsheathing the sword to overturn them! The thing is so unaccountable, that I hardly know how to realize it, or to persuade myself that I am not under the illusion of a dream."[395] It was clear that, in case of civil discord and open confusion extending through any considerable part of the country, he would be obliged to take part on one side or the other, or to withdraw from the continent; and he, as well as other reflecting men, were not without fears that the disturbances in the Eastern States might extend throughout the Union. He consulted with his friends in distant parts of the country, and requested their advice, but still, as late as February, hesitated whether he should attend the Convention. In that month, he heard of the suppression of the rebellion in Massachusetts; but the developments which it had made of the state of society, the necessity which it had revealed for more coercive power in the institutions of the country, and the fear which it had excited that this want might lead men's minds to entertain the idea of monarchical government, finally decided him to accept the appointment. The possibility that his absence at such a juncture might be construed into what he called "a dereliction of republicanism," seems to have influenced his decision more than all other reasons. Congress, it is true, had now sanctioned the Convention, and this had removed one obstacle which had weighed with him and with others. He entertained great doubts as to the result of the experiment, but was entirely satisfied that it ought to be tried.[396] He left Mount Vernon in the latter part of April. Public honors attended him everywhere on his route. At Chester, fifteen miles from the city of Philadelphia, he was met by the Speaker of the Assembly of Pennsylvania and several officers and gentlemen of distinction, who accompanied him to Gray's Ferry, where a military escort was in waiting to receive him and conduct him into the city. On his arrival, he immediately paid a visit to Dr. Franklin, at that time President of the State of Pennsylvania.[397] On the assembling of the Convention, Robert Morris, by the instruction and in behalf of the deputation of Pennsylvania, proposed that General Washington should be elected President. John Rutledge of South Carolina seconded this suggestion, observing that the presence of General Washington forbade any observations on the occasion which might otherwise be proper.[398] His opinions, at the time when he took the chair of the Convention, as to what was proper to be done, and what was practicable, can only be gathered from his correspondence. He had formed some general views of the principles on which a national government should be framed, but he had not proceeded at all to the consideration of details. The first and most important object he held to be, to establish such a constitution as would secure and perpetuate the republican form of government, by satisfying the wants of the country and the time, and thus checking all tendency to monarchical ideas. He had come to the Convention, as we have seen, in order that the great experiment of self-government, on which this country had entered at the Revolution, might have a further trial beyond the hazards of the hour. He knew--he had had occasion to know--that the thought of a monarchy, as being necessary to the safety of the country, had been to some extent entertained. There had been those in a former day, in the darkest period of the war, who had proposed to him to assume a crown,--men who could possibly have bestowed it upon him, or have assisted him to acquire it,--but who met a rebuke which the nature of their proposition and his character should have taught them to expect. There were those in that day who sincerely despaired of republican liberty, and who had allowed themselves to think that some of the royal families of Europe might possibly furnish a sovereign fitted to govern and control the turbulent elements of our political condition. Washington understood the genius and character of the people of this country so well, that he held it to be impossible ever to establish that form of government over them without the deepest social convulsions. It was the form of the government against which they had waged a seven years' war; and it was certain that, apart from all questions of theoretical fitness or value, nothing but the most frightful civil disorders, menacing the very existence of society itself, could ever bring them again under its sway. He was also satisfied, that, whatever particular system was to be adopted, it must be one that would create a national sovereignty and give it the means of coercion. What the nature of that coercion ought to be, he had not considered; but that obedience to the ordinances of a general government could not be expected, unless it was clothed with the power of enforcing them, all his experience during the war, and all his observation since, had fully satisfied him. He was convinced, also, that powers of a more extensive nature, and which would comprehend other objects, ought to be given to the general government; that Congress should be so placed as to enable and compel them to exert their constitutional authority with a firm and steady hand, instead of referring it back to the States. He proposed to adopt no temporizing expedients, but to have the defects of the Confederation thoroughly examined and displayed, and a radical cure provided, whether it were accepted or not. A course of this kind, he said, would stamp wisdom and dignity on their proceedings, and hold up a light which sooner or later would have its influence.[399] Persuaded that the primary cause of all the public disorders lay in the different State governments, and in the tenacity with which they adhered to their State powers, he saw that incompatibility in the laws of different States and disrespect to the authority of the Union must continue to render the situation of the country weak, inefficient, and disgraceful. The principle with which he entered the Convention, and on which he acted throughout to the end, was, "with a due consideration of circumstances and habits, to form such a government as will bear the scrutinizing eye of criticism, and trust it to the good sense and patriotism of the people to carry it into effect."[400] The character of Washington as a statesman has, perhaps, been somewhat undervalued, from two causes; one of them being his military greatness, and the other, the extraordinary balance of his mind, which presented no brilliant and few salient qualities. Undoubtedly, as a statesman he was not constructive, like Hamilton, nor did he possess the same abundant and ever-ready resources. He was eminently cautious, but he was also eminently sagacious. He had had a wide field of observation during the war, the theatre of which, commencing in New England, had extended through the Middle and into the Southern States. He had, of course, been brought in contact with the men and the institutions of all the States, and had been concerned in their conflicts with the federal authority, to a greater extent than any other public man of the time. This experience had not prepared him--as the character of his mind had not prepared him--to suggest plans or frame institutions fitted to remedy the evils he had observed, and to apply the principles which he had discovered. But it had revealed to him the dangers and difficulties of our situation, and had made him a national statesman, as incapable of confining his politics to the narrow scale of local interests and attachments, as he had been of confining his exertions to the object of achieving the liberties of a single state. He would have been fitly placed in the chair of any deliberative assembly into which he might have been called at any period of his life; but it was preëminently suitable that he should occupy that of the Convention for forming the Constitution. He had no talent for debate, and upon the floor of this body he would have exerted less influence, and have been far less the central object towards which the opinions and views of the members were directed, than he was in the high and becoming position to which he was now called. FOOTNOTES: [389] Madison's Debates in the Federal Convention. Elliot, V. 244. [390] Washington's Writings, IX. 166. [391] Washington's Writings, IX. 121. [392] Washington's Writings, IX. 167. [393] Washington's Writings, IX. 212. [394] Washington's Writings, IX. 219. [395] Washington's Writings, IX. 221. [396] Washington's Writings, IX. 236. [397] Sparks's Life of Washington, p. 435. [398] Madison's Debates, Elliot, V. 123. [399] Washington's Writings, IX. 250. [400] Washington's Writings, IX. 258. CHAPTER VIII. HAMILTON. Next to the august name of the President should be mentioned that great man who, as a statesman, towered above all his compeers, even in that assembly of great men,--Alexander Hamilton. This eminent person is probably less well known to the nation at the present day, than most of the leading statesmen of the Revolution. There are causes for this in his history. He never attained to that high office which has conferred celebrity on inferior men. The political party of which he was one of the founders and one of the chief leaders became unpopular with the great body of his countrymen before it was extinct. His death, too, at the early age of forty-seven, while it did not leave an unfinished character, left an unfinished career, for the contemplation of posterity. In this respect, his fate was unlike that of nearly all his most distinguished contemporaries. Washington, Adams, Jefferson, Madison, Jay, and in fact almost all the prominent statesmen of the Revolution, died in old age or in advanced life, and after the circle of their public honors and usefulness had been completed. Hamilton was cut off at a period of life when he may be said to have had above a third of its best activity yet before him: and this is doubtless one cause why so little is popularly known, by the present generation, of him who was by far the greatest statesman of the Revolutionary age. It is known, indeed, traditionally, what a thrill of horror--what a sharp, terrible pang--ran through the nation, proving the comprehension by the entire people of what was lost, when Aaron Burr took from his country and the world that important life. In the most distant extremities of the Union, men felt that one of the first intellects of the age had been extinguished. From the utmost activity and public consideration, in the fulness of his strength and usefulness, the bullet of a duellist had taken the first statesman in America;--a man who, while he had not been without errors, and while his life had not been without mistakes, had served his country, from his boyhood to that hour of her bitter bereavement, with an elevation of purpose and a force of intellect never exceeded in her history, and which had caused Washington to lean upon him and to trust him, as he trusted and leaned upon no other man, from first to last. The death of such a man, under such circumstances, cast a deep gloom over the face of society; and Hamilton was mourned by his contemporaries with a sorrow founded on a just appreciation of his greatness, and of what they owed to his intellect and character. But by the generations that have succeeded he has been less intimately known than many of his compatriots, who lived longer, and reached stations which he never occupied. He was born in the island of St. Christopher's, in the year 1757; his mother being a native of that island, and his father being a Scotchman. At the age of fifteen, after having been for three years in the counting-house of a merchant at Santa Cruz, he was sent to New York to complete his education, and was entered as a private student in King's (now Columbia) College. At the age of seventeen, his political life was already begun; for at that age, and while still at college, he wrote and published a series of essays on the Rights of the Colonies, which attracted the attention of the whole country. These essays appeared in 1774, in answer to certain pamphlets on the Tory side of the controversy; and in them Hamilton reviewed and vindicated the whole of the proceedings of the first Continental Congress. There are displayed in these papers a power of reasoning and sarcasm, a knowledge of the principles of government and of the English Constitution, and a grasp of the merits of the whole controversy, that would have done honor to any man at any age, and in a youth of seventeen are wonderful. To say that they evince precocity of intellect, gives no idea of their main characteristics. They show great maturity;--a more remarkable maturity than has ever been exhibited by any other person, at so early an age, in the same department of thought. They produced, too, a great effect. Their influence in bringing the public mind to the point of resistance to the mother country, was important and extensive. Before he was nineteen years old, Hamilton entered the army as a captain of artillery; and when only twenty, in 1777, he was selected by Washington to be one of his aides-de-camp, with the rank of lieutenant-colonel. In this capacity he served until 1782, when he was elected a member of Congress from the State of New York, and took his seat. In 1786, he was chosen a member of the legislature of New York. In 1787, he was appointed as a delegate to the Convention which framed the Constitution. In the following year, when only thirty years old, he published, with Madison and Jay, the celebrated essays called "The Federalist," in favor of the form of government proposed by the Convention. In 1788, he became a member of the State Convention of New York, called to ratify the Constitution, and it was chiefly through his influence that it was adopted in that State. In 1789, he took office in Washington's administration, as Secretary of the Treasury. In 1795, he retired to the practice of the law in the city of New York. In 1798, at Washington's absolute demand, he was appointed second in command of the provisional army, raised under the elder Adams's administration, to repel an apprehended invasion of the French. On the death of Washington, in 1799, he succeeded to the chief command. When the army was disbanded, he again returned to the bar, and practised with great reputation until the year 1804, when his life was terminated in a duel with Colonel Burr, concerning which the sole blame that has ever been imputed to Hamilton is, that he felt constrained to accept the challenge. His great characteristic was his profound insight into the principles of government. The sagacity with which he comprehended all systems, and the thorough knowledge he possessed of the working of all the freer institutions of ancient and modern times, united with a singular capacity to make the experience of the past bear on the actual state of society, rendered him one of the most useful statesmen that America has known. Whatever in the science of government had already been ascertained; whatever the civil condition of mankind in any age had made practicable or proved abortive; whatever experience had demonstrated; whatever the passions, the interests, or the wants of men had made inevitable,--he seemed to know intuitively. But he was no theorist. His powers were all eminently practical. He detected the vice of a theory instantly, and shattered it with a single blow. His knowledge, too, of the existing state of his own and of other countries was not less remarkable than his knowledge of the past. He understood America as thoroughly as the wisest of his contemporaries, and he comprehended Europe more completely than any other man of that age upon this continent.[401] To these characteristics he added a clear logical power in statement, a vigorous reasoning, a perfect frankness and moral courage, and a lofty disdain of all the arts of a demagogue. His eloquence was distinguished for correctness of language and distinctness of utterance, as well as for grace and dignity. In theory, he leaned decidedly to the constitution of England, as the best form of civil polity for the attainment of the great objects of government. But he was not, on that account, less a lover of liberty than those who favored more popular and democratic institutions. His writings will be searched in vain for any disregard of the natural rights of mankind, or any insensibility to the blessings of freedom. It was because he believed that those blessings can be best secured by governments in which a change of rulers is not of frequent occurrence, that he had so high an estimate of the English Constitution. At the period of the Convention, he held that the chief want of this country was a government into which the element of a permanent tenure of office could be largely infused; and he read in the Convention--as an illustration of his views, but without pressing it--a plan by which the Executive and the Senate could hold their offices during good behavior. But the idea, which has sometimes been promulgated, that he desired the establishment of a monarchical government in this country, is without foundation. At no period of his life did he regard that experiment as either practicable or desirable. Hamilton's relation to the Constitution is peculiar. He had less direct agency in framing its chief provisions than many of the other principal persons who sat in the Convention; and some of its provisions were not wholly acceptable to him when framed. But the history, which has been detailed in the previous chapters of this work, of the progress of federal ideas, and of the efforts to introduce and establish principles tending to consolidate the Union, has been largely occupied with the recital of his opinions, exertions, and prevalent influence. Beginning with the year 1780, when he was only three-and-twenty years of age, and when he sketched the outline of a national government strongly resembling the one which the Constitution long afterwards established; passing through the term of his service in Congress, when his admirable expositions of the revenue system, the commercial power, and the ratio of contribution, may justly be said to have saved the Union from dissolution; and coming down to the time when he did so much to bring about, first, the meeting at Annapolis, and then the general and final Convention of all the States;--the whole period is marked by his wisdom and filled with his power. He did more than any other public man of the time to lessen the force of State attachments, to create a national feeling, and to lead the public mind to a comprehension of the necessity for an efficient national sovereignty. Indeed, he was the first to perceive and to develop the idea of a real union of the people of the United States. To him, more than to any one else, is to be attributed the conviction that the people of the different States were competent to establish a general government by their own direct action; and that this mode of proceeding ought to be considered within the contemplation of the State legislatures, when they appointed delegates to a convention for the revision and amendment of the existing system.[402] The age in which he lived, and the very extraordinary early maturity of his character, naturally remind us of that remarkable person who was two years his junior, and who became prime-minister of England at the age of twenty-four. The younger Pitt entered public life with almost every possible advantage. Inheriting "a great and celebrated name,"[403] educated expressly for the career of a statesman, and introduced into the House of Commons at a moment when power was just ready to drop into the hands of any man capable of wielding it, he had only to prove himself a brilliant and powerful debater, in order to become the ruler of an empire, whose constitution had been settled for ages, and was necessarily administered by the successful leaders of regular parties in its legislative body. That he was a most eminent parliamentary orator, a consummate tactician and leader of party, a minister of singular energy, and a statesman of a very high order of mind and character, at an age when most men are scarcely beginning to give proofs of what they may become,--all this History has deliberately and finally recorded. What place it may assign to him among the statesmen by whose lives and actions England and the world have been materially and permanently benefited is not yet settled, and it is not to the present purpose to consider. The theatre in which Hamilton appeared, lived, and acted, was one of a character so totally different, that the comparison necessarily ends with the contrast which it immediately suggests. Like Pitt, indeed, he seems to have been born a statesman, and to have had no such youth as ordinarily precedes the manhood of the mind. But, in the American colonies, no political system of things existed that was fitted to train him for a career of usefulness and honor; and yet, when the years of his boyhood were hardly ended, he sprang forth into the troubled affairs of the time, with the full stature of a matured and well-furnished statesman. He, in truth, showed himself to be already the man that was wanted. Every thing was in an unsettled and anxious state;--a state of change and transition. There was no regular, efficient government. It was all but a state of civil war, and the more clear-sighted saw that this great disaster was coming. He was compelled, therefore, to mark out for himself, step by step, beginning in 1774, a system of political principles which should serve, not to administer existing institutions with wisdom and beneficence, but to create institutions able to unite a people divided into thirteen independent sovereignties; to give them the attitude and capacity of an independent nation; and then to carry them on, with constantly increasing prosperity and power, to their just place in the affairs of the world. It was a great work, but Mr. Hamilton was equal to it. He was by nature, by careful study, and by still more careful, anxious, and earnest thought, eminently fitted to detect and develop those resources of power and progress, which, in the dark condition of society that attends and follows an exhausting period of revolution, lie hidden, like generous seeds, until some strong hand disencumbers them of the soil with which they had been oppressed, and gives them opportunity to germinate and bear golden fruit. At the age of three-and-twenty he had already formed well-defined, profound, and comprehensive opinions on the situation and wants of these States. He had clearly discerned the practicability of forming a confederated government, and adapting it to their peculiar condition, resources, and exigencies. He had wrought out for himself a political system, far in advance of the conceptions of his contemporaries, and one which, in the hands of those who most opposed him in life, became, when he was laid in a premature grave, the basis on which this government was consolidated; on which, to the present day, it has been administered; and on which alone it can safely rest in that future, which seems so to stretch out its unending glories before us. Mr. Hamilton, therefore, I conceive, proved himself early to be a statesman of greater talent and power than the celebrated English minister whose youthful success was in the eyes of the world so much more brilliant, and whose early death was no less disheartening; for none can doubt, that to build up a free and firm state out of a condition of political chaos, and to give it a government capable of developing the resources of its soil and people, and of insuring to it prosperity, power, and permanence, is a greater work than to administer with energy and success--even in periods of severe trial--the constitution of an empire whose principles and modes of action have been settled for centuries. Hamilton was one of those statesmen who trust to the efficacy of the press for the advancement and inculcation of correct principles of public policy, and who desire to accomplish important results mainly through the action of an enlightened public opinion. That he had faith in the intelligence and honesty of his countrymen, is proved by the numerous writings which he constantly addressed to their reason and good sense, in the shape of essays or letters, from the beginning to the end of his career, upon subjects on which it was important that they should act with wisdom and principle. His own opinions, although held with great firmness, were also held in subordination to what was practicable. It was the rare felicity of his temperament, to be able to accept a less good than his principles might have led him to insist upon, and to labor for it, when nothing better could be obtained, with as much patriotic energy and zeal as if it had been the best result of his own views. The Constitution itself remains, in this particular, a monument of the disinterestedness of his character. He thought it had great defects. But he accepted it, as the best government that the wisdom of the Convention could frame, and the best that the nation would adopt. In this spirit, as soon as it was promulgated for the acceptance of the country, he came forward and placed himself in the foremost rank of its advocates, making himself, for all future time, one of the chief of its authoritative expounders. He was very ably assisted in the Federalist by Madison and Jay; but it was from him that the Federalist derived the weight and the power which commanded the careful attention of the country, and carried conviction to the great body of intelligent men in all parts of the Union. The extraordinary forecast with which its luminous discussions anticipated the operation of the new institutions, and its profound elucidation of their principles, gave birth to American constitutional law, which was thus placed at once above the field of arbitrary constructions and in the domain of legal truth. They made it a science; and so long as the Constitution shall exist, they will continue to be resorted to as the most important source of contemporaneous interpretation which the annals of the country afford.[404] In the two paramount characters of statesman and jurist, in the comprehensive nature of his patriotism, in his freedom from sectional prejudices, in his services to the Union, and in the kind and magnitude of his intellect, posterity will recognize a resemblance to him whom America still mourns with the freshness of a recent grief, and who has been to the Constitution, in the age that has succeeded, what Hamilton was in the age that witnessed its formation and establishment. Without the one of these illustrious men, the Constitution probably would never have existed; without the other, it might have become a mere record of past institutions, whose history had been glorious until faction and civil discord had turned it into a record of mournful recollections. The following sentences, written by Hamilton soon after the adjournment of the Convention, contain a clew to all his conduct in support of the plan of government which that body recommended:--"It may be in me a defect of political fortitude, but I acknowledge that I cannot feel an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A nation without a national government is an awful spectacle. The establishment of a constitution, in a time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety." FOOTNOTES: [401] While these sheets are passing through the press, Mr. Ticknor writes to me as follows: "One day in January, 1819, talking with Prince Talleyrand, in Paris, about his visit to America, he expressed the highest admiration of Mr. Hamilton, saying, among other things, that he had known nearly all the marked men of his time, but that he had never known one, on the whole, equal to him. I was much surprised and gratified with the remark; but still, feeling that, as an American, I was in some sort a party concerned by patriotism in the compliment, I answered with a little reserve, that the great military commanders and the great statesmen of Europe had dealt with larger masses and wider interests than he had. 'Mais, Monsieur,' the Prince instantly replied, 'Hamilton avoit _deviné_ l'Europe.'" [402] See his first speech in the Convention, as reported by Mr. Madison. [403] Burke, speaking of Lord Chatham. [404] The current editions of the Federalist are taken from an edition published at Washington in 1818, by Jacob Gideon, in which the numbers written by Mr. Madison purport to have been corrected by himself. There had been three editions previous to this. The first edition was published in 1788, in two small volumes, by J. & A. McLean, 41 Hanover Square, New York, under the following title: "The Federalist: a Collection of Essays written in Favor of the New Constitution, as agreed upon by the Federal Convention, September 17, 1787." The first volume was issued before the last of the essays were written, and the second followed it, as soon as the series was completed. The authentic text of the work is to be found in this edition; two of the authors were in the city of New York at the time it was printed, and probably superintended it. It was reissued from the same type, in 1789, by John Tiebout, 358 Pearl Street, New York. A second edition was published in 1802, at New York, in two volumes, containing also "Pacificus on the Proclamation of Neutrality, and the Constitution, with its Amendments." A third edition was published in 1810, by Williams & Whiting, New York. I have seen copies of the first and second editions only, in the library of Peter Force, Esq., of Washington, editor of the "American Archives." There are some discrepancies between the text of the first edition and that of 1818, from which the current editions are taken. By whom or on what authority the alterations were made, I have not been able to ascertain, nor have I learned when, or why, or how far Mr. Madison may have corrected or altered the papers which he wrote. Such of the changes as I have examined do not materially affect the sense; but it is very desirable that the true text of the Federalist should be reproduced. That text exists in the first edition, which was issued while the Constitution was before the people of the United States for their ratification; and as the Federalist was an argument addressed to the people in favor of the adoption of the Constitution, the exact text of that argument, as it was read and acted upon, ought to be restored, without regard to the reasons which may have led any of the writers, or any one else, to alter it. I know of no evidence that Colonel Hamilton ever made or sanctioned the alteration of a word. After the text of the Constitution itself, there is scarcely any thing the preservation of which is more important than the text of the Federalist as it was first published. CHAPTER IX. MADISON. From Hamilton we naturally turn to his associate in the Federalist,--James Madison, afterwards fourth President of the United States,--whose faithful and laborious record has preserved to us the debates of the Convention. * * * * * Mr. Madison was thirty-six years old when he entered that assembly. His previous life had fitted him to play a conspicuous and important part in its proceedings. He was born in 1751, of a good family, in Orange County, Virginia, and was educated at Princeton College in New Jersey, where he took the degree of Bachelor of Arts in 1772. He returned to Virginia in the spring of 1773, and commenced the usual studies preparatory to an admission to the bar; but the disputes between the Colonies and the mother country soon drew him into public life. In 1776, he became a member of the State Convention which formed the first Constitution of Virginia. He was afterwards a member of the legislature and of the Council of the State, until he was appointed one of its delegates in Congress, where he took his seat in March, 1780.[405] From this time to the assembling of the Federal Convention in 1787, his services to the Union were of the most important character. He entered Congress without a national reputation, but with national views. Indeed, it may be said of him, that he came from his native Commonwealth,--"mother of great men,"--grown to the full proportions of a continental statesman. At the moment when he appeared upon the larger theatre of the national interests, the Articles of Confederation had not been finally ratified by all the States. Maryland had insisted, as a necessary condition of her accession to the new Confederacy, that the great States should surrender to the Union their immense claims to the unoccupied territories of the West; Virginia had remonstrated against this demand; and the whole scheme of the Confederation had thus been long encountered by an apparently insurmountable obstacle.[406] The generous example of New York, whose Western claims were ceded to the United States in the month preceding Mr. Madison's entry into Congress, had furnished to the advocates of the Union the means for a powerful appeal to both sides of this critical and delicate controversy; but it required great tact, discretion, and address to make that appeal effectual, by inducing Maryland to trust to the influence of this example upon Virginia, and by inducing Virginia to make a cession that would be satisfactory to Maryland. In this high effort of statesmanship--a domestic diplomacy full of difficulties--Mr. Madison took part. He did not prepare the very skilful report which, while it aimed to produce cessions of their territorial claims by the larger States, appealed to Maryland to anticipate the result;[407] but the vast concession by which Virginia yielded the Northwestern Territory to the Union was afterwards brought about mainly by his exertions. In 1782, he united with Hamilton in the celebrated report prepared by the latter upon the refusal of the State of Rhode Island to comply with the recommendations of Congress for a duty on imports.[408] In 1783, he was named first upon a committee with Ellsworth and Hamilton, to prepare an Address to the States, urging the adoption of the revenue system which has been described in a previous chapter, and the Address was written by him.[409] The great ability and high tone of this paper gave it a striking effect. The object of this plan of revenue was, as we have seen, to fund the national debts, and to make a sufficient provision for their discharge. I have already assigned to it the merit of having preserved the Union from the premature decay that had begun to destroy its vitality;[410] and it may here be added, that the statesman whose pen could produce the comprehensive and powerful appeal by which it was pressed upon the States, was certain to become one of the chief founders of the Constitution of which the plan itself was the forerunner. It settled the fact, that a national unity in dealing with the debts of the Revolution was "necessary to render its fruits a full reward for the blood, the toils, the cares, and the calamities which had purchased them." Such were Mr. Madison's most important services in the Congress of the Confederation; but they are of course not the whole. A member so able and of such broad and national views must have had a large agency in every important transaction; and accordingly the Journals, during the whole period of his service, bear ample testimony to his activity, his influence, and his zeal. At the close of the war, he retired to Virginia, and during the three following years was a member of the legislature, still occupied, however, with the interests of the Union. His attention was specially directed to the subject of enlarging the powers of Congress over the foreign trade of the country. It is a striking fact, and a proof of the comprehensive character of Mr. Madison's statesmanship, that Virginia, a State not largely commercial, should have taken so prominent a part in the efforts to give the control of commerce to the general government;--an object which has justly been regarded as the corner-stone of the Constitution. It arose partly from the accident of her geographical position, which made it necessary for her to aim at something like uniformity of regulation with the other States which bordered upon her contiguous waters; but it is also to be attributed to the enlightened liberality and forecast of her great men, who saw in the immediate necessities of their own State the occasion for a measure of general advantage to the country. Mr. Madison's first effort was, to procure a declaration by the legislature of Virginia of the necessity for a uniform regulation of the commerce of the States by the federal authority. For this purpose, he introduced into the legislature a series of propositions, intended to instruct the delegates of the State in Congress to propose a recommendation to the States to confer upon Congress power to regulate their trade and to collect a revenue from such regulation. This measure, as we have seen, encountered the opposition of those who preferred a temporary to a perpetual and irrevocable grant of such power; and the propositions were so much changed in the Committee of the Whole, that they were no longer acceptable to their original friends. The steps which finally led the legislature of Virginia to recommend a general convention of all the States have been detailed in a previous chapter of this work; but it is due to Mr. Madison's connection with this movement, that they should here be recapitulated with reference to his personal agency in the various transactions. A conflict of jurisdiction between the two States of Virginia and Maryland over the waters which separated them had, in the spring of 1785, led to the appointment of commissioners on the part of each State, who met at Alexandria in March. These commissioners, of whom Mr. Madison was one, made a visit to General Washington at Mount Vernon, and it was there proposed that the two States, whose conflicting regulations, ever since the peace, had produced great inconvenience to their merchants, and had been a constant source of irritation, should be recommended by the commissioners to make a compact for the regulation of their impost and foreign trade. Mr. Madison has left no written claim, that I am aware of, to the authorship of this suggestion, but there exists evidence of his having claimed it in conversation.[411] The recommendation was made by the commissioners, and their report was adopted by both States;--by Virginia unconditionally, and by Maryland with the qualification that the States of Delaware and Pennsylvania should be invited to unite in the plan. After the commercial propositions introduced by Mr. Madison had lain on the table for some time as a report from the Committee of the Whole, the report of the Alexandria commissioners was received and ratified by the legislature of Virginia. Although the friends of those propositions were gradually increasing, Mr. Madison had no expectation that a majority could be obtained in favor of a grant of commercial powers to Congress for a longer term than twenty-five years. The idea of a general convention of delegates from all the States, which had been for some time familiar to Mr. Madison's mind, then suggested itself to him, and he prepared and caused to be introduced the resolution which led to the meeting that afterwards took place at Annapolis, for the purpose of digesting and reporting the requisite augmentation of the powers of Congress over trade.[412] His resolution, he says, being, on the last day of the session, "the alternative of adjourning without any effort for the crisis in the affairs of the Union, obtained a general vote; less, however, with some of its friends, from a confidence in the success of the experiment, than from a hope that it might prove a step to a more comprehensive and adequate provision for the wants of the Confederacy."[413] Mr. Madison was appointed one of the commissioners of Virginia to the meeting at Annapolis. There he met Hamilton, who came meditating nothing less than the general revision of the whole system of the Federal Union, and the formation of a new government. Mr. Madison, although less confident than the great statesman of New York as to the measures that ought to be taken, had yet for several years been equally convinced that the perpetuity and efficacy of the existing system could not be confided in. He therefore concurred readily in the report recommending a general convention of all the States; and when that report was received in the legislature of Virginia, he became the author of the celebrated act which passed that body on the 4th of December, 1786, and under which the first appointment of delegates to the Convention was made. It was also chiefly through his exertions, combined with the influence of Governor Randolph, that General Washington's name was placed at the head of the delegation, and that he was induced to accept the appointment. Mr. Madison himself was the fourth member of the delegation. In the Convention, his labors must have been far more arduous than those of any other member of the body. He took a leading part in the debates, speaking upon every important question; and in addition to all the usual duties devolving upon a person of so much ability and influence, he preserved a full and careful record of the discussions with his own hand. Impressed, as he says, with the magnitude of the trust confided to the Convention, and foreseeing the interest that must attach to an authentic exhibition of the objects, the opinions, and the reasonings from which the new system of government was to receive its peculiar structure and organization, he devoted the hours of the night succeeding the session of each day to the preparation of the record with which his name is imperishably associated. "Nor was I," he adds, "unaware of the value of such a contribution to the fund of materials for the history of a Constitution on which would be staked the happiness of a people, great even in its infancy, and possibly the cause of liberty throughout the world."[414] As a statesman, he is to be ranked, by a long interval, after Hamilton; but he was a man of eminent talent, always free from local prejudices, and sincerely studious of the welfare of the whole country. His perception of the principles essential to the continuance of the Union and to the safety and prosperity of the States, was accurate and clear. His studies had made him familiar with the examples of ancient and modern liberty, and he had carefully reflected upon the nature of the government necessary to be established. He was one of the few persons who carried into the Convention a conviction that an amendment of the Articles of Confederation would not answer the exigencies of the time. He regarded an individual independence of the States as irreconcilable with an aggregate sovereignty of the whole, but admitted that a consolidation of the States into a simple republic was both impracticable and inexpedient. He sought, therefore, for some middle ground, which would at once support a due supremacy of the national authority, and leave the local authorities in force for their subordinate objects. For this purpose, he conceived that a system of representation which would operate without the intervention of the States was indispensable; that the national government should be armed with a positive and complete authority in all cases where a uniformity of measures was necessary, as in matters of trade, and that it should have a negative upon the legislative acts of the States, as the crown of England had before the Revolution. He thought, also, that the national supremacy should be extended to the judiciary, and foresaw the necessity for national tribunals, in cases in which foreigners and citizens of different States might be concerned, and also for the exercise of the admiralty jurisdiction. He considered two branches of the legislature, with distinct origins, as indispensable; recognized the necessity for a national executive, and favored a council of revision of the laws, in which should be included the great ministerial officers of the government. He saw also, that, to give the new system its proper energy, it would be necessary to have it ratified by the authority of the people, and not merely by that of the legislatures.[415] Such was the outline of the project which he had formed before the assembling of the Convention. How far his views were modified by the discussions in which he took part will be seen hereafter. As a speaker in a deliberative assembly, the successive schools in which he had been trained had given him a habit of self-possession which placed all his resources at his command. "Never wandering from his subject," says Mr. Jefferson, "into vain declamation, but pursuing it closely, in language pure, classical, and copious, soothing always the feelings of his adversaries by civilities and softness of expression, he rose to the eminent station which he held in the great national Convention of 1787; and in that of Virginia which followed, he sustained the new Constitution in all its parts, bearing off the palm against the logic of George Mason and the fervid declamation of Mr. Henry. With these consummate powers were united a pure and spotless virtue, which no calumny has ever attempted to sully."[416] Mr. Madison's greatest service in the national Convention consisted in the answers which he made to the objections of a want of power in that assembly to frame and propose a new constitution, and his paper on this subject in the Federalist is one of the ablest in the series. As this work is confined to the period which terminated with the adoption of the Constitution, it is not necessary to examine those points on which the two principal writers of the Federalist became separated from each other, when the administration of the government led to the formation of the first parties known in our political history. These topics it may become my duty to discuss hereafter, should I pursue the constitutional history of the country through the administration of Washington. At present, it may be recorded of both, that, upon almost all the great questions that arose before the Constitution was finally adopted, the single purpose of establishing a system as efficient as the theory of a purely republican government would admit, was the object of their efforts; and that, although they may have differed with regard to the details and methods through which this object was to be reached, the purpose at which they both aimed places them in the same rank at the head of those founders of our government, towards whom the gratitude of the succeeding generations of America must be for ever directed.[417] FOOTNOTES: [405] Article "Madison" in the Penny Encyclopædia, written for that work by Professor George Tucker of the University of Virginia. [406] Ante, pp. 131-141. [407] It was drawn by James Duane of New York. [408] Ante, pp. 174, 206-208. [409] Ante, pp. 177-179. [410] Ante, pp. 176, 186, 188. [411] In preparing the note to page 342 (ante), I refrained from attributing to General Washington the suggestion of the enlarged plan recommended by the Alexandria commissioners, although it was concerted at his house, because there is no evidence, beyond that fact, of his having proposed this enlargement of the plan. Since that note was printed, I have learned in a direct manner, that Mr. Madison had stated to the Hon. Edward Coles, formerly his private secretary and afterwards Governor of Illinois, that he (Mr. Madison) first suggested it. In assigning, therefore, to the different individuals who took a prominent part in the measures which led to the formation of the Constitution, the various suggestions which had an important influence upon the course of events,--a curious and interesting inquiry,--I consider that to Mr. Madison belongs the credit of having originated that series of Virginia measures which brought about the meeting of commissioners of all the States at Annapolis, for the purpose of enlarging the powers of Congress over commerce; while Hamilton is to be considered the author of the plan in which the Convention at Annapolis was merged, for an entire revision of the federal system and the formation of a new constitution. [412] The resolve was introduced by Mr. Tyler, father of the Ex-President, a person of much influence in the legislature, and who had never been in Congress. Although prepared by Mr. Madison, it was not offered by him, for the reason that a great jealousy was felt against those who had been in the federal councils, and because he was known to wish for an enlargement of the powers of Congress. See Madison's Introduction to the Debates in the Convention, Elliot, V. 113. [413] Ibid., p. 114. [414] Introduction to the Debates, Elliot, V. 121. [415] Letter to Edmund Randolph, dated New York, April 8, 1787. [416] Jefferson's Autobiography. Works, I. 41, edition of 1853. [417] The following extract from an autograph letter of Mr. Madison, hitherto unpublished, which lies before me, written after the adoption of the Constitution, shows very clearly that he concurred with Hamilton in the opinion that the strongest government consistent with the republican form was necessary in the situation of this country. The letter is dated at Philadelphia, December 10, 1788, and is addressed to Philip Mazzei, at Paris. "Your book, as I prophesied, sells nowhere but in Virginia; a very few copies only have been called for, either in New York or in this city. The language in which it is written will account for it. In order to attract notice, I translated the panegyric in the French Mercure, and had it made part of the advertisement. I did not translate the comment on the Federal Constitution, as you wished, because I could not spare the time, as well as because I did not approve the tendency of it. Some of your remarks prove that Horace's '_Coelum non animum mutant qui trans mare currunt_' does not hold without exception. In Europe, the abuses of power continually before your eyes have given a bias to your political reflections, which you did not feel in equal degree when you left America, and which you would feel less of, if you had remained in America. Philosophers on the old continent, in their zeal against tyranny would rush into anarchy; as the horrors of superstition drive them into atheism. Here, perhaps, the inconveniences of relaxed government have reconciled too many to the opposite extreme. If your plan of a single legislature, as in Pennsylvania, &c., were adopted, I sincerely believe that it would prove the most deadly blow ever given to republicanism. Were I an enemy to that form, I would preach the very doctrines which are preached by the enemies to the government proposed for the United States. Many of our best citizens are disgusted with the injustice, instability, and folly which characterize the American administrations. The number has for some time been rapidly increasing. Were the evils to be much longer protracted, the disgust would seize citizens of every description. "It is of infinite importance to the cause of liberty to ascertain the degree of it which will consist with the purposes of society. An error on one side may be as fatal as on the other. Hitherto, the error in the United States has lain in the excess. "All the States, except North Carolina and Rhode Island, have ratified the proposed Constitution. Seven of them have appointed their Senators, of whom those of Virginia, R. H. Lee and Colonel Grayson, alone are among the opponents of the system. The appointments of Maryland, South Carolina, and Georgia will pretty certainly be of the same stamp with the majority. The House of Representatives is yet to be chosen, everywhere except in Pennsylvania. From the partial returns received, the election will wear a federal aspect unless the event in one or two particular counties should contradict every calculation. If the eight members from this State be on the side of the Constitution, it will in a manner secure the majority in that branch of the Congress also. The object of the anti-Federalists is, to bring about another general convention, which would either agree on nothing, as would be agreeable to some, and throw every thing into confusion, or expunge from the Constitution parts which are held by its friends to be essential to it. The latter party are willing to gratify their opponents with every supplemental provision for general rights, but insist that this can be better done in the mode provided for amendments. "I remain, with great sincerity, your friend and servant, "JAS. MADISON, JR." CHAPTER X. FRANKLIN. The Convention was graced and honored by the venerable presence of Dr. Franklin, then President of the State of Pennsylvania, and in his eighty-second year. He had returned from Europe only two years before, followed by the admiration and homage of the social, literary, and scientific circles of France; laden with honors, which he wore with a plain and shrewd simplicity; and in the full possession of that predominating common-sense, which had given him, through a long life, a widely extended reputation of a peculiar character. The oldest of the public men of America, his political life had embraced a period of more than half a century, extending back to a time when independence had not entered into the dreams of the boldest among the inhabitants of the English Colonies. For more than twenty years before the Revolution commenced, he had held a high and responsible office under the crown, the administration of which affected the intercourse and connection of all the Colonies;[418] and more than twenty years before the first Continental Congress was assembled, he had projected a plan of union for the thirteen Provinces which then embraced the whole of the British dominions in North America.[419] Nearly as long, also, before the Declaration of Independence, he had become the resident agent in England of several of the Colonies, in which post he continued, with a short interval, through all the controversies that preceded the Revolution, and until reconciliation with the mother country had become impossible.[420] Returning in 1775, he was immediately appointed by the people of Pennsylvania one of their delegates in the second Continental Congress. In the following year, he was sent as commissioner to France, where he remained until he was recalled, and was succeeded by Mr. Jefferson, in 1785. With the fame of his two residences abroad--the one before and the other after the country had severed its connection with England--the whole land was filled. The first of them, commencing with an employment for settling the miserable disputes between the people and the Proprietaries of Pennsylvania, was extended to an agency for the three other Colonies of Georgia, New Jersey, and Massachusetts, which finally led him to take part in the affairs of all British America, and made him virtually the representative of American interests. His brief service in Congress, during which he signed the Declaration of Independence, was followed by his appointment as Commissioner at the Court of Versailles, which he made the most important sphere that has ever been filled by any American in Europe, and in which that treaty of alliance with France was negotiated which enabled the United States to become in fact an independent nation. His long career of public service; his eminence as a philosopher, a philanthropist, and a thinker; the general reverence of the people for his character; his peculiar power of illustrating and enforcing his opinions by a method at once original, simple, and attractive,--made his presence of the first importance in an assembly which was to embrace the highest wisdom and virtue of America. It is chiefly, however, by the countenance he gave to the effort to frame a Constitution, that his services as a member of this body are to be estimated. His mind was at all times ingenious, rather than large and constructive; and his great age, while it had scarcely at all impaired his natural powers, had confirmed him in some opinions which must certainly be regarded as mistaken. His desire, for example, to have the legislature of the United States consist of a single body, for the sake of simplicity, and his idea that the chief executive magistrate ought to receive no salary for his official services, for the sake of purity, were both singular and unsound. But there were points upon which he displayed extraordinary wisdom, penetration, and forecast. When an objection to a proportionate representation in Congress was started, upon the ground that it would enable the larger States to swallow up the smaller, he declared that, as the great States could propose to themselves no advantage by absorbing their inferior neighbors, he did not believe they would attempt it. His recollection carried him back to the early part of the century, when the union between England and Scotland was proposed, and when the Scotch patriots were alarmed by the idea that they should be ruined by the superiority of England, unless they had an equal number of members in Parliament; and yet, notwithstanding the great inferiority in their representation as established by the act of union, he declared, that, down to that day, he did not recollect that any thing had been done in the Parliament of Great Britain to the prejudice of Scotland.[421] Although he spoke but seldom in the Convention, his influence was very great, and it was always exerted to cool the ardor of debate, and to check the tendency of such discussions to result in irreconcilable differences. His great age, his venerable and benignant aspect, his wide reputation, his acute and sagacious philosophy,--which was always the embodiment of good sense,--would have given him a controlling weight in a much more turbulent and a far less intelligent assembly. When--after debates in which the powerful intellects around him had exhausted the subject, and both sides remained firm in opinions diametrically opposed--he rose and reminded them that they were sent to consult and not to contend, and that declarations of a fixed opinion and a determination never to change it neither enlightened nor convinced those who listened to them, his authority was felt by men who could have annihilated any mere logical argument that might have proceeded from him in his best days. Dr. Franklin was one of those who entertained serious objections to the Constitution, but he sacrificed them before the Convention was dissolved. Believing a general government to be necessary for the American States; holding that every form of government might be made a blessing to the people by a good administration; and foreseeing that the Constitution would be well administered for a long course of years, and could only end in despotism when the people should have become so corrupted as to be incapable of any other than a despotic government, he gladly embraced a system which he was astonished to find approaching so near to perfection. "The opinions I have had of its errors," said he, "I sacrifice to the public good. Within these walls they were born, and here they shall die. If every one of us, in returning to our constituents, were to report the objections he has had to it, and endeavor to gain partisans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages, resulting naturally in our favor, among foreign nations as well as among ourselves, from our real or apparent unanimity. Much of the strength and efficiency of any government in procuring and securing happiness to the people depends on opinion,--on the general opinion of the goodness of the government, as well as of the wisdom and integrity of its governors. I hope, therefore, that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (approved by Congress and confirmed by the conventions) wherever our influence may extend, and turn our future thoughts and endeavors to the means of having it well administered."[422] And thus, with a cheerful confidence in the future, sustaining the hopes of all about him, and hailing every omen that foretold the rising glories of his country,[423] this wise old man passed out from the assembly, when its anxious labors had been brought to a close with a nearer approach to unanimity than had ever been expected. He lived, borne down by infirmities, "To draw his breath in pain" for nearly three years after the Convention was dissolved; but it was to see the Constitution established, to witness the growing strength of the new government, and to contemplate the opening successes and the beneficent promise of Washington's administration. Writing to the first President in 1789, he said: "For my own personal ease, I should have died two years ago; but though those years have been spent in excruciating pain, I am pleased that I have lived them, since they have brought me to see our present situation."[424] FOOTNOTES: [418] In 1753, he was appointed Deputy Postmaster-General for the British Colonies, from which place he was dismissed in 1774, while in England, on account of the part he had taken in American affairs. [419] In 1754. See an account of this plan, ante, p. 8. [420] He first went to England in 1757, as agent of the Pennsylvania Assembly to settle their difficulties with the Proprietaries, where he remained until 1762. In 1764, he was reappointed provincial agent in England for Pennsylvania; in 1768, he received a similar appointment from Georgia; in 1769, he was chosen agent for New Jersey; and in 1770, he became agent for Massachusetts. His whole residence in England, from 1757 to 1775, embraced a period of sixteen years, two years having been passed at home. He resided in France about nine years, from 1776 to 1785. [421] He added, with his usual quiet humor, that "whoever looks over the lists of public officers, civil and military, of that nation, will find, I believe, that the North Britons enjoy their full proportion of emolument." Madison, Elliot, V. 179. [422] Madison, Elliot, V. 554. [423] Mr. Madison has recorded the following anecdote at the end of the Debates, as an incident worthy of being known to posterity. "Whilst the last members were signing, Dr. Franklin, looking towards the President's chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had often found it difficult, in their art, to distinguish a rising from a setting sun. 'I have,' said he, 'often and often, in the course of the session, and the vicissitude of my hopes and fears as to its issue, looked at that behind the President, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising, and not a setting sun.'" [424] Sparks's Life of Franklin, 528. CHAPTER XI. GOUVERNEUR MORRIS. This brilliant, energetic, and patriotic statesman was born in the Province of New York, at Morrisania,--the seat of his family for several generations,--in the year 1752. He was educated for the bar; but in 1775, at the age of three-and-twenty, he was elected a member of the Provincial Congress of New York, in which he became at once distinguished. When the recommendation of the Continental Congress to the Colonies, to organize new forms of government, was received, he took a leading place in the debates on the formation of a new constitution for the State; and when the subject of independence was brought forward, in order that the delegates of New York in the Continental Congress might be clothed with sufficient authority, he delivered a speech of great power, of which fragments only are preserved, but which evidently embraced the most comprehensive and statesmanlike views of the situation and future prospects of this country. Speaking of the capacity of America to sustain herself without a connection with Great Britain, he said:-- "Thus, Sir, by means of that great gulf which rolls its waves between Europe and America; by the situation of these Colonies, always adapted to hinder or interrupt all communication between the two; by the productions of our soil, which the Almighty has filled with every necessary to make us a great maritime people; by the extent of our coasts and those immense rivers, which serve at once to open a communication with our interior country, and to teach us the arts of navigation; by those vast fisheries, which, affording an inexhaustible mine of wealth and a cradle of industry, breed hardy mariners, inured to danger and fatigue; finally, by the unconquerable spirit of freemen, deeply interested in the preservation of a government which secures to them the blessings of liberty and exalts the dignity of mankind;--by all these, I expect a full and lasting defence against any and every part of the earth; while the great advantages to be derived from a friendly intercourse with this country almost render the means of defence unnecessary, from the great improbability of being attacked. So far, peace seems to smile upon our future independence. But that this fair goddess will equally crown our union with Great Britain, my fondest hopes cannot lead me to suppose. Every war in which she is engaged must necessarily involve us in its detestable consequences; whilst, weak and unarmed, we have no shield of defence, unless such as she may please (for her own sake) to afford, or else the pity of her enemies and the insignificance of slaves beneath the attention of a generous foe."[425] In 1778, Mr. Morris was chosen a delegate to the Continental Congress from the State of New York. His reputation for talent, zeal, activity, and singular capacity for business, had preceded him. On the very day when he presented his credentials, he was placed upon a committee to proceed to Valley Forge, to confer with General Washington on the measures necessary for a reorganization of the army. He remained in Congress for two years, discharging, with great ability and high patriotism, the most important functions, and subjected all the while to the most unjust popular suspicions of his fidelity to the cause of the country. Few of all the prominent men of the Revolution sacrificed or suffered more than Gouverneur Morris. The fact that all the other members of his family adhered to the royalist side, and an ineffectual effort which he once made to visit his mother, at his ancestral home, then within the British lines, gave his enemies the means of inflicting upon him a deep injury in the popular estimation. He was not re-elected to Congress; but short as his career in that body was, it was filled with services inferior to those of none of his associates. Before he left Congress, in February, 1779, he made--as chairman of a committee to whom certain communications from the French minister in the United States were referred--a report which became the basis of the peace that afterwards followed; and when the principles on which the peace was to be negotiated had been settled, he drew the instructions to the commissioners, and they were unanimously adopted without change.[426] On leaving Congress, Mr. Morris took up his residence in Philadelphia, and resumed the practice of the law. His remarkable talent for business, however, and his intimate knowledge of financial subjects, led to his appointment as Assistant Financier with Robert Morris. In this capacity, he suggested the idea of the decimal notation, which was afterwards made the basis of the coinage of the United States.[427] Having been appointed one of the delegates from the State of Pennsylvania to the Convention for forming the Constitution of the United States, Mr. Morris attended the whole session, with the exception of a few days in June, and entered into its business with his accustomed ardor. To remove impediments, obviate objections, and conciliate jarring opinions, he exerted all his fine faculties, and employed his remarkable eloquence. But he is chiefly to be remembered, in connection with the Constitution, as the author of its text. To his pen belongs the merit of that clear and finished style,--that _lucidus ordo_,--that admirable perspicuity, which have so much diminished the labors and hazards of interpretation for all future ages.[428] The character of Gouverneur Morris was balanced by many admirable qualities. His self-possession was so complete in all circumstances, that he is said to have declared, that he never knew the sensation of fear, inferiority, or embarrassment, in his intercourse with men. Undoubtedly, his self-confidence amounted sometimes to boldness and presumption; but we have it on no less an authority than Mr. Madison's, that he added to it a candid surrender of his opinions, when the lights of discussion satisfied him that they had been too hastily formed.[429] He was a man of genius, fond of society and pleasure, but capable of prodigious exertion and industry, and possessed of great powers of eloquence. He loved to indulge in speculations on the future condition of the country, and often foresaw results which gave him patience under the existing state of things. In 1784, writing to Mr. Jay, at a time when the clashing commercial regulations of the States seemed about to put an end to the Union, he said: "True it is, that the general government wants energy, and equally true it is, that this want will eventually be supplied. A national spirit is the natural result of national existence, and although some of the present generation may feel colonial oppositions of opinion, yet this generation will die away and give place to a race of Americans."[430] He was himself, at all times, an American, and never more so than during the discussions of the Convention. Appealing to his colleagues to extend their views beyond the narrow limits of place whence they derived their political origin, he declared, with his characteristic energy and point, that State attachments and State importance had been the bane of this country. "We cannot annihilate," said he, "but we may perhaps take out the teeth of the serpents."[431] In truth, the circumstances of his life had prevented him from feeling those strong local attachments which he considered the great impediments to the national prosperity. Born in one State, he had then resided for seven years in another, from whose inhabitants he had received at least equal marks of confidence with those that had been bestowed upon him by the people among whom he first entered public life. In his political opinions, he probably went farther in opposition to democratic tendencies than any other person in the Convention. He was in favor of an executive during good behavior, of a Senate for life, and of a freehold qualification for electors of representatives. In several other respects, the Constitution, as actually framed, was distasteful to him; but, like many of the other eminent men who doubted its theoretical or practical wisdom, he determined at once to abide by the voice of the majority. He saw that, as soon as the plan should go forth, all other considerations ought to be laid aside, and the great question ought to be, Shall there be a national government or not? He acknowledged that the alternatives were, the adoption of the system proposed, or a general anarchy;--and before this single and fearful issue all questions of individual opinion or preference sank into insignificance.[432] It is a proof both of his sincerity and of the estimate in which his abilities were held, that, when this great issue was presented to the people, he was invited by Hamilton to become one of the writers of the Federalist.[433] It is not known why he did not embrace the opportunity of connecting himself with that celebrated publication; but his correspondence shows that it was from no want of interest in the result. He took pains to give to Washington his decided testimony, from personal observation, that the idea of his refusing the Presidency would, if it prevailed, be fatal to the Constitution in many parts of the country.[434] Mr. Morris filled two important public stations, after the adoption of the Constitution. He was the first Minister to France appointed by General Washington, and filled that office from May, 1792, until August, 1794. In February, 1800, he was chosen by the legislature of New York to supply a vacancy in the Senate of the United States, which he filled until the 4th of March, 1803. He died at Morrisania on the 6th of November, 1818. "Let us forget party," said he, "and think of our country, which embraces all parties."[435] FOOTNOTES: [425] Sparks's Life of G. Morris, I. 103. The florid and declamatory style of this speech belongs to the period and to the youth of the speaker. The breadth of its views and its vigor of thought display the characteristics which belonged to him through life. He had a prophetic insight of the future resources of this country, and made many remarkable predictions of its greatness. His biographer has claimed for him the suggestion of the plan for uniting the waters of Lake Erie with those of the Hudson, and upon very strong evidence. [426] See the Report and the debates thereon, Secret Journals, II. 132 et seq. [427] In January, 1782, the Financier made a report, which was officially signed by him, but which Mr. Jefferson says was prepared by his Assistant, Gouverneur Morris. It embraced an elaborate statement of the denominations and comparative value of the foreign coins in circulation in the different States, and proposed the adoption of a money unit and a system of decimal notation for a new coinage. The unit suggested was such a portion of pure silver as would be a common measure of the penny of every State, without leaving a fraction. This common divisor Mr. Morris found to be one 1440th of a dollar, or one 1600th of the crown sterling. The value of a dollar was therefore to be expressed by 1,440 units, and that of a crown by 1,600, each unit containing a quarter of a grain of fine silver. Nothing, however, was done, until 1784, when Mr. Jefferson, being in Congress, took up the subject. He approved of Mr. Morris's general views, and his method of decimal notation, but objected to his unit as too minute for ordinary use. Mr. Jefferson proposed the dollar as the unit of account and payment, and that its divisions and subdivisions should be in the decimal ratio. This plan was adopted in August, 1785, and in 1786 the names and characters of the coins were determined. The ordinance establishing the coinage was passed August 8, 1786, and that establishing the mint, on the 16th of October, in the same year. (Jefferson's Autobiography, Works, I. 52-54. Life of Gouverneur Morris, I. 273. Journals of Congress, XI. 179, 254.) [428] The materials for the final preparation of the instrument, consisting of a reported draft in detail and the various resolutions which had been adopted, were placed in the hands of a committee of revision, of which William Samuel Johnson, of Connecticut, was the chairman; the other members being Messrs. Hamilton, Gouverneur Morris, Madison, and King. The chairman committed the work to Mr. Morris, and the Constitution, as adopted, was prepared by him. (See Mr. Madison's letter to Mr. Sparks, Life of Gouverneur Morris, I. 284. Madison's Debates, Elliot, V. 530.) [429] Life of Morris, I. 284-286. [430] Ibid. 266. [431] Madison, Elliot, V. 276, 277. [432] Madison, Elliot, V. 556. [433] Life, I. 287. [434] Ibid. 288-290. [435] Ibid. 517. CHAPTER XII. KING. Rufus King, celebrated as a jurist, a statesman, an orator, and a diplomatist, was sent to the Convention by the Commonwealth of Massachusetts. Born in her District of Maine, in 1755, and graduated at Harvard College in 1777, he came very early into public life, and was rarely out of it until his death, which occurred in 1827, in the seventy-third year of his age. His first public service was in the year 1778, as a volunteer in the expedition against the British in Rhode Island, in which he acted as aide-de-camp to General Sullivan. In 1780, he commenced the practice of the law in the town of Newburyport, and was soon after elected from that town to the legislature of the State. There he distinguished himself by a very powerful speech in favor of granting to the general government the five per cent. impost recommended by Congress as part of the revenue system of 1783. He was soon after elected a member of Congress from Massachusetts, in which body he took his seat on the 6th of December, 1784, and served until the close of the year 1787. He was thus a member both of the Convention for forming the Constitution and of the Congress which sanctioned and referred it to the people. He was also a member of the Convention of Massachusetts, in which the Constitution was ratified by that State. Mr. King did not favor the plan of a convention for the revision of the federal system, until after the meeting at Annapolis had been held; and, indeed, he did not concur in its expediency, until after the troubles in Massachusetts had made its necessity apparent. In 1785, as we have seen, he joined with the other members of the Massachusetts delegation in opposing it.[436] In the autumn of 1786, when the report of the Annapolis Convention was before Congress, he expressed the opinion, in person, to the legislature of Massachusetts, that the Articles of Confederation could not be altered, except by the consent of Congress and the confirmation of the several legislatures; that Congress ought, in the first instance, to make the examination of the federal system, since, if it was done by a convention, no legislature would have a right to confirm it; and further, that, if Congress should reject the report of a convention, the most fatal consequences might follow. For these reasons, he at that time held Congress to be the proper body to propose alterations.[437] At the moment when he was making this address to the legislature, the disturbances in Massachusetts were fast gathering into that formidable insurrection, which two months afterwards burst forth in the interior of the State.[438] Mr. King spoke of these commotions in grave and pointed terms. He told the legislature that Congress viewed them with deep anxiety; that every member of the national councils felt his life, liberty, and property to be involved in the issue of their decisions; that the United States would not be inactive on such an occasion, for, if the lawful authority of the State were to be prostrated, every other government would eventually be swept away. He entreated them to remember, that, if the government were in a minority in the State, they had a majority of every State in the Union to join them.[439] He returned to Congress immediately. But there he found that the reliance which he had placed upon the ability of the Confederation to interfere and suppress such a rebellion was not well founded. The power was even doubted, or denied, by some of the best statesmen in that body; and although the insurrection was happily put down by the government of the State itself, the fearful exposure of a want of external power adequate to such emergencies produced in Mr. King, as in many others, a great change of views, both as to the necessity for a radical change of the national government and as to the mode of effecting it. His vote, in February, was given to the proposition introduced by the delegation of New York for a national convention; and when that failed, he united with his colleague, Mr. Dane, in bringing forward the resolution by which the Convention was finally sanctioned in Congress.[440] The Convention having been sanctioned by Congress, no man was more ready than Mr. King to maintain its power to deliberate on and propose any alterations that Congress could have suggested in the Federal Articles. He held that the proposing of an entire change in the mode of suffrage in the national legislature, from a representation of the States alone to a representation of the people, was within the scope of their powers, and consistent with the Union; for if that Union, on the one hand, involved the idea of a confederation, on the other hand it contained also the idea of consolidation, from which a national character resulted to the individuals of whom the States were composed. He doubted the practicability of annihilating the State governments, but thought that much of their power ought to be taken from them.[441] He declared, that, when every _man_ in America might be secured in his rights, by a government founded on equality of representation, he could not sacrifice such a substantial good to the phantom of _State_ sovereignty. If this illusion were to continue to prevail, he should be prepared for any event, rather than sit down under a government founded on a vicious principle of representation, and one that must be as short-lived as it would be unjust.[442] There is one feature of the Constitution with which the name of Mr. King should always be connected, and of which he may be said, indeed, to have been the author. Towards the close of the session, he introduced the prohibition on the States to pass laws affecting the obligation of contracts. It appears that the Ordinance for the government of the Northwestern Territory, which had been passed by Congress about a month previous, contained a similar prohibition on the States to be formed out of that territory. That any of the jurists who were concerned in the framing of either instrument foresaw at the moment all the great future importance and extensive operation of this wise and effective provision, we are not authorized to affirm. But a clause which has enabled the supreme national judicature to exercise a vast, direct, and uniform influence on the security of property throughout all the States of this Confederacy, should be permanently connected with the names of its authors.[443] Mr. King was but little past the age of thirty when the Constitution was adopted. After that event, he went to reside in the city of New York, and entered upon the career of distinction which filled up the residue of his life, as a Senator in Congress, and as Minister to England. No formal biography of him has yet appeared; but when that duty shall have been discharged by those to whom it appropriately belongs, there will be added to our literature an account of a man of the most eminent abilities and the purest patriotism, whose influence and agency in the great transactions which attended the origin and first operations of the government were of the utmost importance. FOOTNOTES: [436] Ante, p. 339, note. [437] Mr. King being in Boston in October, 1786, was desired by the legislature to attend and give an account of the state of national affairs. For an abstract of his address, see Boston Magazine for the year 1786, p. 406. [438] Ante, p. 266 et seq. [439] Ibid. [440] Journals, XII. 15-17. [441] Madison, Elliot, V. 212, 213. [442] Madison, Elliot, V. 266. [443] The Ordinance for the government of the Northwestern Territory was drawn by Nathan Dane of Massachusetts. It was reported in Congress July 11th, 1787, and was passed July 13th. The committee by whom it was reported were Messrs. Carrington and R. H. Lee of Virginia, Kearney of Delaware, Smith of New York, and Mr. Dane. The clause relating to contracts was in these words: "And in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made or have force in the said territory, that shall in any manner whatever interfere with or affect private contracts or engagements, _bona fide_ and without fraud previously formed." On the 28th of August, Mr. King moved in the Convention to insert the same clause in the Constitution; but it was opposed, and was not finally adopted until September 14, when it was incorporated in the phraseology in which it now stands in the Constitution. (Madison, Elliot, V. 485; Journal of the Convention, Elliot, I. 311.) CHAPTER XIII. CHARLES COTESWORTH PINCKNEY. Charles Cotesworth Pinckney of South Carolina, the eldest son of a chief justice of that Colony, distinguished both as a soldier and a civilian, was educated in England, and read law at the Temple. He returned to his native province in 1769, and commenced the practice of his profession; which, like many of the young American barristers of that day, he was obliged to abandon for the duties of the camp, when the troubles of the Revolution began. He became colonel of the first regiment of the Carolina infantry, and served under General Moultrie in the defence of the fort on Sullivan's Island. This gallant resistance having freed the South, for a time, from invasion, Pinckney repaired to the Northern army, and was made aide-de-camp to General Washington; in which capacity he served at the battles of the Brandywine and Germantown. He afterwards acquired great distinction in the defence of South Carolina against the British under Sir Henry Clinton. On the return of peace, he devoted himself to the law, in which he became eminent. He belonged to that school of public men, who had been trained in the service of the country under the eye of Washington, and who had experienced with him the fatal defects of the successive governments which followed the Declaration of Independence. Of his abilities, patriotism, and purity of character we have the strongest evidence, in the repeated efforts made by Washington, after the establishment of the Constitution, to induce him to accept some of the most important posts in the government. He was, indeed, one of that order of men to whom Washington gave his entire confidence from the first. A ripe scholar, a profound lawyer, with Revolutionary laurels of the most honorable kind,--wise, energetic, and disinterested,--it is not singular that the people of South Carolina should have selected him as one of their delegates to an assembly, which was to frame a new constitution of government for the country to whose service his earlier years had been devoted. General Pinckney entered the Convention with a desire to adhere, if possible, to the characteristic principles of the Confederation; but also with the wish to make that government more effective, by giving to it distinct departments and enlarged powers.[444] But in the progress of the discussions, he surrendered these views, and became a party to those arrangements by which mutual concessions between the opposing sections of the Union made a different form of government a practicable result. He was a strenuous supporter of the interests of the slaveholding States, in all that related to their right to hold and increase their slave population. He contended earnestly against a grant of authority to the general government to prohibit the importation of slaves; for he supposed that his constituents would not surrender that right. But he finally entered into the arrangement, by which the postponement of the power to prohibit the slave-trade to the year 1808 was made a ground of consent on the part of the Southern States to give the regulation of commerce to the Union. He considered it, he said, the true interest of the Southern States to have no regulation of commerce; but he yielded it, in consideration of the losses brought upon the commerce of the Eastern States by the Revolution, and of their liberality towards the interests of the Southern portion of the Confederacy. The framers of the Constitution of the United States have often been bitterly reproached for permitting the slave-trade to be carried on for twenty years after the period of its formation; and the Eastern States have been especially accused of a sordid spirit of trade in purchasing for themselves the advantage of a national regulation of commerce by this concession. It is the duty of History, however, to record the facts in their true relations. At the time when the Convention for framing our Constitution was assembled, no nation had prohibited the African slave-trade. The English Quakers, following the example of their American brethren, had begun to move upon the subject, but it was not brought formally before Parliament until 1788; the trade was not abolished by act of Parliament until 1807, nor made a felony until 1810. Napoleon's decree of 1815 was the first French enactment against the traffic. But in 1787, many of the members of the American Convention insisted that the power to put an end to this trade ought to be vested in the new government which they were endeavoring to form. But they found certain of the Southern States unwilling to deprive themselves of the supply of this species of labor for their new and yet unoccupied lands. Those States would not consent to a power of immediate prohibition, and they were extremely reluctant to yield even a power that might be used at a future period. They preferred to keep the whole subject in their own hands, and to determine for themselves when the importation should cease. The members of the Convention, therefore, who desired the abolition of this trade, found that, if they attempted to force these States to a concession that it ought to be immediately prohibited, either the regulation of commerce--the chief object for which the Convention had been called--could not be obtained for the new Constitution, or, if it were obtained, several of the Southern States would be excluded from the Union. The question, then, that presented itself to them was a great question of humanity and public policy, to be judged and decided upon all the circumstances that surrounded it. Were they to form a Union that should include only those States willing to consent to an immediate prohibition of the slave-trade, and thus leave the rest of the States out of that Union, and independent of its power to restrain the importation of slaves? Were they to abandon the hope of forming a new Constitution for the thirteen States that had gone together through all the conflicts and trials and sacrifices of the Revolution, or were they to form such a government, and secure to it the power at some early period of putting an end to this traffic? If they were to do the latter,--if the cause of humanity demanded action upon this and all the other great objects dependent upon their decisions,--how could the commercial interests of the country be better used, than in the acquisition of a power to free its commerce from the stain and reproach of this inhuman traffic? By the arrangement which was to form one of the principal "compromises" of the Constitution, American commerce might achieve for itself the opportunity to do what no nation had yet done. By this arrangement, it might be implied in the fundamental law of the new government about to be created for the American people, that the abolition of the slave-trade was an object that ought to engage the attention of Christian states. Without it, the abolition of this trade could not be secured within any time or by any means capable of being foreseen or even conjectured. That the framers of the Constitution judged wisely: that they acted upon motives which will enable History to shield them from all reasonable reproach; and that they brought about a result alike honorable to themselves and to their country,--will not be denied by those who remember and duly appreciate the fact, that the Congress of the United States, under the Constitution, was the first legislative body in the world to prohibit the carrying of slaves to the territories of foreign countries.[445] It is no inconsiderable honor to the statesmen situated as General Pinckney and other representatives of the Southern States were, that they should have frankly yielded the prejudices, and what they supposed to be the interests, of their constituents, to the great object of forming a more perfect union. Certainly they could urge, with equal if not greater force and truth, the same arguments for the continuance of the slave-trade, which for nearly twenty years afterwards were continually heard in the British Parliament, and which postponed its abolition until long after the people of England had become satisfied both of its inhumanity and its impolicy. Whether General Pinckney was right or wrong in the opinion that his constituents needed no national regulation of commerce, there can be no doubt of his sincerity when he expressed it. Nor can there be any doubt that he was fully convinced of the fact, when he asserted that they would not adopt a constitution that should vest in the national government an immediate power to prohibit the importation of slaves. He made, therefore, a real concession, when he consented to the prohibition at the end of twenty years, and he made it in order that the union of the thirteen States might be preserved under a Constitution adequate to its wants. For this, as well as for other services, he is entitled to a place of honor among the great men who framed the charter of our national liberties; and when we recollect that by his action he armed the national government with a power to free the American name from the disgrace of tolerating the slave-trade, before it was effectually put down by any other people in Christendom, we need not hesitate to rank him high among those who made great sacrifices for the general welfare of the country and the general good of mankind.[446] FOOTNOTES: [444] Madison, Elliot, V. 133. [445] Denmark, it is said, abolished the foreign slave-trade and the importation into her colonies in 1792, but the prohibitions were not to take effect until 1804. 1 Kent's Commentaries, 198, note (citing Mr. Wheaton). [446] In the first draft of the Constitution reported by the Committee of Detail, it was provided that the importation of such persons as the States might think proper to admit should not be prohibited. When the committee to arrange, if possible, certain compromises between the Northern and Southern States was raised, this provision, with other matters, was referred, and it was finally agreed that the importation should not be prohibited before the year 1808. After the adoption of the Constitution, Congress, by the acts of March 22d, 1794, and May 10, 1800, prohibited the citizens and residents of the United States from carrying slaves to any foreign territory for the purpose of traffic. By the act of March 2, 1807, the importation of slaves into the United States after January 1, 1808, was prohibited under severe penalties. In 1818 and 1819 these penalties were further increased, and in 1820, the offence was made piracy. Although the discussion of the subject commenced in England at about the same time (1788), it was nearly twenty years before a bill could be carried through Parliament for the abolition of the traffic. Through the whole of that period, and down to the very last, counsel were repeatedly heard at the bar, in behalf of interested parties, to oppose the reform. The trade was finally abolished by act of Parliament in March, 1807; it was made a felony in 1810, and declared to be piracy in 1824. While, therefore, the representatives of a few of the Southern States of this Union refused to consent to an immediate prohibition, they did consent to engraft upon the Constitution what was in effect a declaration that the trade should be prohibited at a fixed period of time; and the trade was thus abolished by the United States, under a government of limited powers, with respect to their own territories, as soon as it was abolished by the "omnipotent" Parliament of Great Britain. Moreover, by consenting to give to the Union the power to regulate commerce, the Southern States enabled Congress to abolish the slave-trade with foreign countries thirteen years before the same trade was made unlawful to British vessels. CHAPTER XIV. WILSON. James Wilson, a signer of the Declaration of Independence, and one of the early Judges of the Supreme Court of the United States, was one of the first jurists in America during the latter part of the last century. He was born in Scotland about the year 1742. After studying at Glasgow, St. Andrews, and Edinburgh, he emigrated to Pennsylvania in 1766. He became, soon after his arrival, a tutor in the Philadelphia College, in which place he acquired great distinction as a classical scholar. He subsequently studied the law, and was admitted to the bar; and, after practising at different places, took up his residence at Philadelphia, where he continued to reside during the rest of his life.[447] For six years out of the twelve that elapsed from 1775 to the summoning of the Convention of 1787, he was a member of Congress. Concerned in all the great measures of independence, the establishment of the Confederation, the peace, and the revenue system of 1783, he had acquired a fund of political experience, which became of great value to the country and to himself. Although a foreigner by birth, he was thoroughly American in all his sentiments and feelings, and, at the time he entered the Convention, there were few public men in the country who perceived more clearly the causes of the inherent weakness of the existing government. During the war, he had always considered the States, with respect to that war, as forming one community;[448] and he did not admit the idea, that, when the Colonies became independent of Great Britain, they became independent of each other.[449] From the Declaration of Independence he deduced the doctrine that the States by which that measure was adopted were independent in their confederated character, and not as individual communities. This rather subtile distinction may seem now to have been of no great practical moment, since the Confederation had actually united the States as such, rather than the inhabitants of the States. But it was one of the positions assumed by those who desired to combat the idea that the States, when assembled in Convention, were restrained, by their position as equal and independent sovereignties, from adopting a plan of government founded on a representation of the people. To this objection Mr. Wilson repeatedly addressed himself, and his efforts had great influence in causing the adoption of the principle by which the people of the States became directly represented in the government in the ratio of their numbers. He showed that this principle had been improperly violated in the Confederation, in consequence of the urgent necessity of forming a union, and the impossibility at that time of forming any other than a union of the States. As a new partition of the States was now impracticable, it became necessary for them to surrender a portion of their sovereignties, and to permit their inhabitants to enter into direct relations with a new federal union. He pointed out the twofold relation in which the people must henceforth stand;--in the one, they would be citizens of the general government; in the other, they would be citizens of their particular State. As both governments were derived from the people, and both were designed for them, both ought to be regulated on the same principles. In no other way could the larger States consent to a new union; and if the smaller States could not admit the justice of a proportionate representation, it was in vain to expect to form a constitution that would embrace and satisfy the whole country. This great idea of a representative government was in fact the aim of all Mr. Wilson's exertions; and when the Constitution was formed, he enforced this idea in the Convention of Pennsylvania with singular power. His speech in that body is one of the most comprehensive and luminous commentaries on the Constitution that have come down to us from that period. It drew from Washington a high encomium, and it gained the vote of Pennsylvania for the new government, against the ingenious and captivating objections of its opponents. The life of this wise, able, and excellent man was comparatively short. In 1789, he was appointed by Washington a Judge of the Supreme Court of the United States. While on a circuit in North Carolina, in the year 1798, he died at Edenton, at about the age of fifty-six. The character of his mind and the sources of his influence will be best appreciated, by examining some of the more striking passages of his great speech on the Constitution.[450] FOOTNOTES: [447] Encyclopædia Americana, Art. "Wilson, James." [448] Madison, Elliot, V. 78. [449] Ibid. 213. [450] The following extracts from the speech referred to will well repay a careful perusal. "_Tacitus_,--the profound politician Tacitus,--who lived towards the latter end of those ages which are now denominated _ancient_, who undoubtedly had studied the constitutions of all the states and kingdoms known before and in his time, and who certainly was qualified, in an uncommon degree, for understanding the full force and operation of each of them, considers, after all he had known and read, a mixed government, composed of the three simple forms, as a thing rather to be wished than expected. And he thinks that, if such a government could even be instituted, its duration could not be long. One thing is very certain,--that the doctrine of representation in government was altogether unknown to the ancients. Now, the knowledge and practice of this doctrine is, in my opinion, essential to every system that can possess the qualities of freedom, wisdom, and energy. "It is worthy of remark, and the remark may, perhaps, excite some surprise, that representation of the people is not, even at this day, the sole principle of any government in Europe. Great Britain boasts--and she may well boast--of the improvement she has made in politics by the admission of representation; for the improvement is important as far as it goes; but it by no means goes far enough. Is the executive power of Great Britain founded on representation? This is not pretended. Before the Revolution, many of the kings claimed to reign by divine right, and others by hereditary right; and even at the Revolution, nothing further was effected or attempted than the recognition of certain parts of an original contract (_Blackstone_, 233), supposed, at some former remote period, to have been made between the king and the people. A contract seems to exclude, rather than to imply, delegated power. The judges of Great Britain are appointed by the crown. The judicial authority, therefore, does not depend upon representation, even in its most remote degree. Does representation prevail in the legislative department of the British government? Even here it does not predominate, though it may serve as a check. The legislature consists of three branches,--the king, the lords, and the commons. Of these, only the latter are supposed by the constitution to represent the authority of the people. This short analysis clearly shows to what a narrow corner of the British constitution the principle of representation is confined. I believe it does not extend farther, if so far, in any other government in Europe. For the American States were reserved the glory and the happiness of diffusing this vital principle throughout the constituent parts of government. Representation is the chain of communication between the people and those to whom they have committed the exercise of the powers of government. This chain may consist of one or more links, but in all cases it should be sufficiently strong and discernible. "To be left without guide or precedent was not the only difficulty in which the Convention were involved, by proposing to their constituents a plan of a confederate republic. They found themselves embarrassed with another, of peculiar delicacy and importance. I mean that of drawing a proper line between the national government and the governments of the several States. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined, in its operation and effects, within the bounds of a particular State, should be considered as belonging to the government of that State; whatever object of government extends, in its operation or effects, beyond the bounds of a particular State, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care. It is only in mathematical science that a line can be described with mathematical precision. But I flatter myself that, upon the strictest investigation, the enumeration will be found to be safe and unexceptionable, and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature. Particulars under this head will be more properly explained, when we descend to the minute view of the enumeration which is made in the proposed Constitution. "After all, it will be necessary that, on a subject so peculiarly delicate as this, much prudence, much candor, much moderation, and much liberality should be exercised and displayed both by the federal government and by the governments of the several States. It is to be hoped that those virtues in government will be exercised and displayed, when we consider that the powers of the federal government and those of the State governments are drawn from sources equally pure. If a difference can be discovered between them, it is in favor of the federal government, because that government is founded on a representation of the _whole_ Union; whereas the government of any particular State is founded only on the representation of a part, inconsiderable when compared with the whole. Is it not more reasonable to suppose that the counsels of the whole will embrace the interest of every part, than that the counsels of any part will embrace the interests of the whole? "I intend not, Sir, by this description of the difficulties with which the Convention were surrounded, to magnify their skill or their merit in surmounting them, or to insinuate that any predicament in which the Convention stood should prevent the closest and most cautious scrutiny into the performance which they have exhibited to their constituents and to the world. My intention is of far other and higher aim,--to evince, by the conflicts and difficulties which must arise from the many and powerful causes which I have enumerated, that it is hopeless and impracticable to form a constitution which, in every part, will be acceptable to every citizen, or even to every government, in the United States; and that all which can be expected is, to form such a constitution as, upon the whole, is the best that can possibly be obtained. Man and perfection!--a state and perfection!--an assemblage of states and perfection! Can we reasonably expect, however ardently we may wish, to behold the glorious union? "I can well recollect, though I believe I cannot convey to others, the impression which, on many occasions, was made by the difficulties which surrounded and pressed the Convention. The great undertaking sometimes seemed to be at a stand; at other times, its motion seemed to be retrograde. At the conclusion, however, of our work, many of the members expressed their astonishment at the success with which it terminated. "Having enumerated some of the difficulties which the Convention were obliged to encounter in the course of their proceedings, I shall next point out the end which they proposed to accomplish. Our wants, our talents, our affections, our passions, all tell us that we were made for a state of society. But a state of society could not be supported long or happily without some civil restraint. It is true, that, in a state of nature, any one individual may act uncontrolled by others; but it is equally true, that, in such a state, every other individual may act uncontrolled by him. Amidst this universal independence, the dissensions and animosities between interfering members of the society would be numerous and ungovernable. The consequence would be, that each member, in such a natural state, would enjoy less liberty, and suffer more interruption, than he would in a regulated society. Hence the universal introduction of governments of some kind or other into the social state. The liberty of every member is increased by this introduction; for each gains more by the limitation of the freedom of every other member, than he loses by the limitation of his own. The result is, that civil government is necessary to the perfection and happiness of man. In forming this government, and carrying it into execution, it is _essential_ that the _interest_ and _authority_ of the whole community should be binding in every part of it. "The foregoing principles and conclusions are generally admitted to be just and sound with regard to the nature and formation of single governments, and the duty of submission to them. In some cases, they will apply, with much propriety and force, to states already formed. The advantages and necessity of civil government among individuals in society are not greater or stronger than, in some situations and circumstances, are the advantages and necessity of a federal government among states. A natural and very important question now presents itself,--Is such the situation, are such the circumstances, of the United States? A proper answer to this question will unfold some very interesting truths. "The United States may adopt any one of four different systems. They may become consolidated into one government, in which the separate existence of the States shall be entirely absolved. They may reject any plan of union or association, and act as separate and unconnected States. They may form two or more confederacies. They may unite in one federal republic. Which of these systems ought to have been formed by the Convention? To support, with vigor, a single government over the whole extent of the United States, would demand a system of the most unqualified and the most unremitted despotism. Such a number of separate States, contiguous in situation, unconnected and disunited in government, would be, at one time, the prey of foreign force, foreign influence, and foreign intrigue; at another, the victims of mutual rage, rancor, and revenge. Neither of these systems found advocates in the late Convention. I presume they will not find advocates in this. Would it be proper to divide the United States into two or more confederacies? It will not be unadvisable to take a more minute survey of this subject. Some aspects under which it may be viewed are far from being, at first sight, uninviting. Two or more confederacies would be each more compact and more manageable than a single one extending over the same territory. By dividing the United States into two or more confederacies, the great collision of interests apparently or really different and contrary, in the _whole extent_ of their dominion, would be broken, and, in a great measure, disappear, in the several parts. But these advantages, which are discovered from certain points of view, are greatly overbalanced by inconveniences that will appear on a more accurate examination. Animosities, and perhaps wars, would arise from assigning the extent, the limits, and the rights of the different confederacies. The expenses of governing would be multiplied by the number of federal governments. The danger resulting from foreign influence and mutual dissensions would not, perhaps, be less great and alarming in the instance of different confederacies, than in the instance of different, though more numerous, unassociated States. "These observations, and many others that might be made on the subject, will be sufficient to evince that a division of the United States into a number of separate confederacies would probably be an unsatisfactory and an unsuccessful experiment. The remaining system which the American States may adopt, is a union of them under one confederate republic. It will not be necessary to employ much time, or many arguments, to show that this is the most eligible system that can be proposed. By adopting this system, the vigor and decision of a wide-spreading monarchy may be joined to the freedom and beneficence of a contracted republic. The extent of territory, the diversity of climate and soil, the number and greatness and connection of lakes and rivers with which the United States are intersected and almost surrounded,--all indicate an enlarged government to be fit and advantageous for them. The principles and dispositions of their citizens indicate that, in this government, liberty shall reign triumphant. Such, indeed, have been the general opinions and wishes entertained since the era of independence. If those opinions and wishes are as well founded as they have been general, the late Convention were justified in proposing to their constituents one confederate republic, as the best system of a national government for the United States. "In forming this system, it was proper to give minute attention to the interest of all the parts; but there was a duty of still higher import,--to feel and to show a predominating regard to the superior interests of the whole. If this great principle had not prevailed, the plan before us would never have made its appearance. The same principle that was so necessary in forming it is equally necessary in our deliberations, whether we should reject or ratify it. "I make these observations with a design to prove and illustrate this great and important truth,--that, in our decisions on the work of the late Convention, we should not limit our views and regards to the State of Pennsylvania. The aim of the Convention was to form a system of good and efficient government, on the more extensive scale of the United States. In this, and in every other instance, the work should be judged with the same spirit with which it was performed. A principle of duty, as well as candor, demands this. "We have remarked, that civil government is necessary to the perfection of society; we now remark, that civil liberty is necessary to the perfection of civil government. Civil liberty is natural liberty itself, divested of only that part which, placed in the government, produces more good and happiness to the community than if it had remained in the individual. Hence it follows that civil liberty, while it resigns a part of natural liberty, retains the free and generous exercise of all the human faculties, so far as it is compatible with the public welfare. "In considering and developing the nature and end of the system before us, it is necessary to mention another kind of liberty, which has not yet, as far as I know, received a name. I shall distinguish it by the appellation of _federal liberty_. When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republic is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as States. The principles which directed, in the former case, what part of the natural liberty of the man ought to be given up, and what part ought to be retained, will give similar directions in the latter case. The States should resign to the national government that part, and that part only, of their political liberty, which, placed in that government, will produce more good to the whole than if it had remained in the several States. While they resign this part of their political liberty, they retain the free and generous exercise of all their other faculties, as States, so far as it is compatible with the welfare of the general and superintending confederacy. "Since _States_, as well as citizens, are represented in the Constitution before us, and form the objects on which that Constitution is proposed to operate, it was necessary to notice and define _federal_ as well as _civil_ liberty. "These general reflections have been made in order to introduce, with more propriety and advantage, a practical illustration of the end proposed to be accomplished by the late Convention. "It has been too well known, it has been too severely felt, that the present Confederation is inadequate to the government, and to the exigencies, of the United States. The great struggle for Liberty in this country, should it be unsuccessful, will probably be the last one which she will have for her existence and prosperity in any part of the globe. And it must be confessed that this struggle has, in some of the stages of its progress, been attended with symptoms that foreboded no fortunate issue. To the iron hand of Tyranny, which was lifted up against her, she manifested, indeed, an intrepid superiority. She broke in pieces the fetters which were forged for her, and showed that she was unassailable by force. But she was environed with dangers of another kind, and springing from a very different source. While she kept her eye steadily fixed on the efforts of oppression, licentiousness was secretly undermining the rock on which she stood. "Need I call to your remembrance the _contrasted_ scenes of which we have been witnesses? On the glorious conclusion of our conflict with Britain, what high expectations were formed concerning us by others! What high expectations did we form concerning ourselves! Have those expectations been realized? No. What has been the cause? Did our citizens lose their perseverance and magnanimity? No. Did they become insensible of resentment and indignation at any high-handed attempt that might have been made to injure or enslave them? No. What, then, has been the cause? The truth is, we dreaded danger only on one side: this we manfully repelled. But, on another side, danger, not less formidable, but more insidious, stole in upon us; and our unsuspicious tempers were not sufficiently attentive either to its approach or to its operations. Those whom foreign strength could not overpower have wellnigh become the victims of internal anarchy. "If we become a little more particular, we shall find that the foregoing representation is by no means exaggerated. When we had baffled all the menaces of foreign power, we neglected to establish among ourselves a government that would insure domestic vigor and stability. What was the consequence? The commencement of peace was the commencement of every disgrace and distress that could befall a people in a peaceful state. Devoid of _national power_, we could not prohibit the extravagance of our importations, nor could we derive a revenue from their excess. Devoid of national _importance_, we could not procure for our exports a tolerable sale at foreign markets. Devoid of national _credit_, we saw our public securities melt in the hands of the holders, like snow before the sun. Devoid of national _dignity_, we could not, in some instances, perform our treaties on our part; and, in other instances, we could neither obtain nor compel the performance of them on the part of others. Devoid of national _energy_, we could not carry into execution our own resolutions, decisions, or laws. "Shall I become more particular still? The tedious detail would disgust me. The years of languor are now over. We have felt the dishonor with which we have been covered; we have seen the destruction with which we have been threatened. We have penetrated to the causes of both, and when we have once discovered them, we have begun to search for the means of removing them. For the confirmation of these remarks, I need not appeal to an enumeration of facts. The proceedings of Congress, and of the several States, are replete with them. They all point out the weakness and insufficiency as the cause, and an _efficient_ general government as the only cure, of our political distempers. "Under these impressions, and with these views, was the late Convention appointed; and under these impressions, and with these views, the late Convention met. "We now see the great end which they proposed to accomplish. It was to frame, for the consideration of their constituents, one federal and national constitution,--a constitution that would produce the advantages of good, and prevent the inconveniences of bad government;--a constitution whose beneficence and energy would pervade the whole Union, and bind and embrace the interests of every part;--a constitution that would insure peace, freedom, and happiness to the States and people of America. "We are now naturally led to examine the means by which they proposed to accomplish this end. This opens more particularly to our view the discussion before us. But, previously to our entering upon it, it will not be improper to state some general and leading principles of government, which will receive particular application in the course of our investigations. "There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable. Where does this power reside? To this question writers on different governments will give different answers. Sir William Blackstone will tell you, that in Britain the power is lodged in the British Parliament; that the Parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are, at least, no traces of practice conformable to such a principle. The British Constitution is just what the British Parliament pleases. When the Parliament transferred legislative authority to Henry VIII., the act transferring could not, in the strict acceptation of the term, be called unconstitutional. "To control the power and conduct of the legislature by an overruling constitution, was an improvement in the science and practice of government reserved to the American States. "Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that, in our governments, the supreme, absolute, and uncontrollable power _remains_ in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed, the superiority, in this last instance, is much greater; for the people possess over our constitutions control in _act_, as well as right. "The consequence is, that the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them. "These important truths, Sir, are far from being merely speculative. We, at this moment, speak and deliberate under their immediate and benign influence. To the operation of these truths we are to ascribe the scene, hitherto unparalleled, which America now exhibits to the world,--a gentle, a peaceful, a voluntary, and a deliberate transition from one constitution of government to another. In other parts of the world, the idea of revolutions in government is, by a mournful and an indissoluble association, connected with the idea of wars, and all the calamities attendant on wars. But happy experience teaches us to view such revolutions in a very different light,--to consider them only as progressive steps in improving the knowledge of government, and increasing the happiness of society and mankind. "Oft have I marked, with silent pleasure and admiration, the force and prevalence, through the United States, of the principle that the supreme power resides in the people, and that they never part with it. It may be called the _panacea_ in politics. There can be no disorder in the community but may here receive a radical cure. If the error be in the legislature, it may be corrected by the constitution; if in the constitution, it may be corrected by the people. There is a remedy, therefore, for every distemper in government, if the people are not wanting to themselves; if they are wanting to themselves, there is no remedy. From their power, as we have seen, there is no appeal; of their error, there is no superior principle of correction. "There are three simple species of government;--monarchy, where the supreme power is in a single person; aristocracy, where the supreme power is in a select assembly, the members of which either fill up, by election, the vacancies in their own body, or succeed to their places in it by inheritance, property, or in respect of some _personal_ right or qualification; a republic or democracy, where the people at large _retain_ the supreme power, and act either collectively or by representation. "Each of these species of government has its advantages and disadvantages. "The advantages of a _monarchy_ are strength, despatch, secrecy, unity of counsel. Its disadvantages are tyranny, expense, ignorance of the situation and wants of the people, insecurity, unnecessary wars, evils attending elections or successions. "The advantages of _aristocracy_ are wisdom, arising from experience and education. Its disadvantages are dissensions among themselves, oppression to the lower orders. "The advantages of _democracy_ are liberty, equality, cautious and salutary laws, public spirit, frugality, peace, opportunities of exciting and producing abilities of the best citizens. Its disadvantages are dissensions, the delay and disclosure of public counsels, the imbecility of public measures, retarded by the necessity of a numerous consent. "A government may be composed of two or more of the simple forms above mentioned. Such is the British government. It would be an improper government for the United States, because it is inadequate to such an extent of territory, and because it is suited to an establishment of different orders of men. A more minute comparison between some parts of the British Constitution, and some parts of the plan before us, may perhaps find a proper place in a subsequent period of our business. "What is the nature and kind of that government which has been proposed for the United States by the late Convention? In its principle, it is purely democratical. But that principle is applied in different forms, in order to obtain the advantages, and exclude the inconveniences, of the simple modes of government. "If we take an extended and accurate view of it, we shall find the streams of power running in different directions, in different dimensions, and at different heights,--watering, adorning, and fertilizing the fields and meadows through which their courses are led; but if we trace them, we shall discover that they all originally flow from one abundant fountain. "In this Constitution, _all authority is derived from the people_. "Fit occasions will hereafter offer for particular remarks on the different parts of the plan." After an elaborate examination of the Constitution, he thus concludes:-- "A free government has often been compared to a pyramid. This allusion is made with peculiar propriety in the system before you; it is laid on the broad basis of the people; its powers gradually rise, while they are confined in proportion as they ascend, until they end in that most permanent of all forms. When you examine all its parts, they will invariably be found to preserve that essential mark of free governments,--a chain of connection with the people. "Such, Sir, is the nature of this system of government; and the important question at length presents itself to our view,--Shall it be ratified, or shall it be rejected, by this Convention? In order to enable us still further to form a judgment on this truly momentous and interesting point, on which all we have, or can have, dear to us on earth is materially depending, let us for a moment consider the consequences that will result from one or the other measure. Suppose we reject this system of government; what will be the consequence? Let the farmer say,--he whose produce remains unasked for; nor can he find a single market for its consumption, though his fields are blessed with luxuriant abundance. Let the manufacturer, and let the mechanic, say; they can feel, and tell their feelings. Go along the wharves of Philadelphia, and observe the melancholy silence that reigns. I appeal not to those who enjoy places and abundance under the present government; they may well dilate upon the easy and happy situation of our country. Let the merchants tell you what is our commerce; let them say what has been their situation since the return of peace,--an era which they might have expected would furnish additional sources to our trade, and a continuance, and even an increase, to their fortunes. Have these ideas been realized? or do they not lose some of their capital in every adventure, and continue the unprofitable trade from year to year, subsisting under the hopes of happier times under an efficient general government? The ungainful trade carried on by our merchants has a baneful influence on the interests of the manufacturer, the mechanic, and the farmer; and these, I believe, are the chief interests of the people of the United States. "I will go further. Is there now a government among us that can do a single act that a national government ought to do? Is there any power of the United States that can _command_ a single shilling? This is a plain and a home question. "Congress may recommend; they can do no more: they may require; but they must not proceed one step further. If things are bad now,--and that they are not worse is only owing to hopes of improvement or change in the system,--will they become better when those hopes are disappointed? We have been told, by honorable gentlemen on this floor, that it is improper to urge this kind of argument in favor of a new system of government, or against the old one: unfortunately, Sir, these things are too severely felt to be omitted; the people feel them; they pervade all classes of citizens, and every situation from New Hampshire to Georgia: the argument of necessity is the patriot's defence, as well as the tyrant's plea. "Is it likely, Sir, that, if this system of government is rejected, a better will be framed and adopted? I will not expatiate on this subject; but I believe many reasons will suggest themselves to prove that such expectation would be illusory. If a better could be obtained at a future time, is there any thing wrong in this? I go further. Is there any thing wrong that cannot be amended more easily by the mode pointed out in the system itself, than could be done by calling convention after convention, before the organization of the government? Let us now turn to the consequences that will result if we assent to and ratify the instrument before you. I shall trace them as concisely as I can, because I have trespassed already too long on the patience and indulgence of the house. "I stated, on a former occasion, one important advantage; by adopting this system, we become a _nation_; at present, we are not one. Can we perform a single national act? Can we do any thing to procure us dignity, or to preserve peace and tranquillity? Can we relieve the distress of our citizens? Can we provide for their welfare or happiness? The powers of our government are mere sound. If we offer to treat with a nation, we receive this humiliating answer: 'You cannot, in propriety of language, make a treaty, because you have no power to execute it.' Can we borrow money? There are too many examples of unfortunate creditors existing, both on this and the other side of the Atlantic, to expect success from this expedient. But could we borrow money, we cannot command a fund, to enable us to pay either the principal or interest; for, in instances where our friends have advanced the principal, they have been obliged to advance the interest also, in order to prevent the principal from being annihilated in their hands by depreciation. Can we raise an army? The prospect of a war is highly probable. The accounts we receive, by every vessel from Europe, mention that the highest exertions are making in the ports and arsenals of the greatest maritime powers. But whatever the consequence may be, are we to lie supine? We know we are unable, under the Articles of Confederation, to exert ourselves; and shall we continue so, until a stroke be made on our commerce, or we see the debarkation of a hostile army on our unprotected shores? Who will guarantee that our property will not be laid waste, that our towns will not be put under contribution, by a small naval force, and subjected to all the horror and devastation of war? May not this be done without opposition, at least effectual opposition, in the present situation of our country? There may be safety over the Appalachian Mountains, but there can be none on our sea-coast. With what propriety can we hope our flag will be respected, while we have not a single gun to fire in its defence? "Can we expect to make internal improvement, or accomplish any of those great national objects which I formerly alluded to, when we cannot find money to remove a single rock out of a river? "This system, Sir, will at least make us a nation, and put it in the power of the Union to act as such. We shall be considered as such by every nation in the world. We shall regain the confidence of our citizens, and command the respect of others. "As we shall become a nation, I trust that we shall also form a national character, and that this character will be adapted to the principles and genius of our system of government: as yet we possess none; our language, manners, customs, habits, and dress depend too much upon those of other countries. Every nation, in these respects, should possess originality; there are not, on any part of the globe, finer qualities for forming a national character, than those possessed by the children of America. Activity, perseverance, industry, laudable emulation, docility in acquiring information, firmness in adversity, and patience and magnanimity under the greatest hardships;--from these materials, what a respectable national character may be raised! In addition to this character, I think there is strong reason to believe that America may take the lead in literary improvements and national importance. This is a subject which, I confess, I have spent much pleasing time in considering. That language, Sir, which shall become most generally known in the civilized world will impart great importance over the nation that shall use it. The language of the United States will, in future times, be diffused over a greater extent of country than any other that we know. The French, indeed, have made laudable attempts towards establishing a universal language; but, beyond the boundaries of France, even the French language is not spoken by one in a thousand. Besides the freedom of our country, the great improvements she has made, and will make, in the science of government, will induce the patriots and _literati_ of every nation to read and understand our writings on that subject; and hence it is not improbable that she will take the lead in political knowledge. "If we adopt this system of government, I think we may promise security, stability, and tranquillity to the governments of the different States. They would not be exposed to the danger of competition on questions of territory, or any other that have heretofore disturbed them. A tribunal is here found to decide, justly and quietly, any interfering claim; and now is accomplished what the great mind of Henry IV. of France had in contemplation,--a system of government for large and respectable dominions, united and bound together, in peace, under a superintending head, by which all their differences may be accommodated, without the destruction of the human race. We are told by Sully that this was the favorite pursuit of that good king during the last years of his life; and he would probably have carried it into execution, had not the dagger of an assassin deprived the world of his valuable life. I have, with pleasing emotion, seen the wisdom and beneficence of a less efficient power under the Articles of Confederation, in the determination of the controversy between the States of Pennsylvania and Connecticut; but I have lamented that the authority of Congress did not extend to extinguish, entirely, the spark which has kindled a dangerous flame in the district of Wyoming. "Let gentlemen turn their attention to the amazing consequences which this principle will have in this extended country. The several States cannot war with each other; the general government is the great arbiter in contentions between them; the whole force of the Union can be called forth to reduce an aggressor to reason. What a happy exchange for the disjointed, contentious State sovereignties! "The adoption of this system will also secure us from danger, and procure us advantages from foreign nations. This, in our situation, is of great consequence. We are still an inviting object to one European power at least; and, if we cannot defend ourselves, the temptation may become too alluring to be resisted. I do not mean that, with an efficient government, we should mix with the commotions of Europe. No, Sir; we are happily removed from them, and are not obliged to throw ourselves into the scale with any. This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war. I cannot forbear, on this occasion, the pleasure of mentioning to you the sentiments of the great and benevolent man, whose works I have already quoted on another subject. M. Necker has addressed this country in language important and applicable in the strictest degree to its situation and to the present subject. Speaking of war, and the greatest caution that all nations ought to use in order to avoid its calamities,--'And you, rising nation,' says he, 'whom generous efforts have freed from the yoke of Europe! let the universe be struck with still greater reverence at the sight of the privileges you have acquired, by seeing you continually employed for the public felicity: do not offer it as a sacrifice at the unsettled shrine of political ideas, and of the deceitful combinations of warlike ambition; avoid, or at least delay, participating in the passions of our hemisphere; make your own advantage of the knowledge which experience alone has given to our old age, and preserve, for a long time, the simplicity of childhood; in short, honor human nature, by showing that, when left to its own feelings, it is still capable of those virtues that maintain public order, and of that prudence which insures public tranquillity.' "Permit me to offer one consideration more, that ought to induce our acceptance of this system. I feel myself lost in the contemplation of its magnitude. By adopting this system, we shall probably lay a foundation for erecting temples of liberty in every part of the earth. It has been thought by many, that on the success of the struggle America has made for freedom will depend the exertions of the brave and enlightened of other nations. The advantages resulting from this system will not be confined to the United States, but will draw from Europe many worthy characters, who pant for the enjoyment of freedom. It will induce princes, in order to preserve their subjects, to restore to them a portion of that liberty of which they have for many ages been deprived. It will be subservient to the great designs of Providence with regard to this globe,--the multiplication of mankind, their improvement in knowledge, and their advancement in happiness." (Elliot's Debates, II. 423-434, 524-529.) CHAPTER XV. RANDOLPH. Edmund Randolph, a "child of the Revolution,"[451] was Governor of Virginia at the time of the Federal Convention. Probably it was on account of his position as the chief magistrate of the State that he was, by the general consent of his colleagues, selected to bring forward the Virginia plan of government, which was submitted at an early period of the deliberations, and which became, after great modifications, the nucleus of the Constitution. At an early age, in August, 1775, this gentleman joined the army at Cambridge, and was immediately taken into Washington's military family as an aide-de-camp.[452] He served in this capacity, however, no longer than until the following November, when he was suddenly recalled to Virginia by the death of his relative, Peyton Randolph, the President of the First Continental Congress. In 1779, he became a member of Congress from Virginia, and served until March, 1782. In 1786, he was elected Governor of Virginia, succeeding in that office Patrick Henry. In this capacity, it became his duty to secure the attendance of Washington upon the Federal Convention. This matter he managed with great tact and delicacy; and, by the aid of other friends, he succeeded in overcoming the scruples of the illustrious patriot then reposing in the retirement of Mount Vernon. Governor Randolph's conduct with regard to the Constitution might seem to be marked by inconsistency, if we were not able to explain it by the motive of disinterested patriotism from which he evidently acted. He brought to the Convention the most serious apprehensions for the fate of the Union. But he thought that the dangers with which it was surrounded might be averted, by correcting and enlarging the Articles of Confederation. When, at length, the government which was actually framed was found to be a system containing far greater restraints upon the powers of the States than he believed to be either expedient or safe, he endeavored to procure a vote authorizing amendments to be submitted by the State conventions and to be finally decided on by another general convention. This proposition having been rejected, he declined to sign the Constitution, desiring to be free to oppose or advocate its adoption, when it should come before his own State, as his judgment might dictate. When the time for such action came, he saw that the rejection of the Constitution must be followed by disunion. He had wearied himself in endeavoring to find a possibility of preserving the Union without an unconditional ratification by Virginia. To the people of Virginia, therefore, he painted with great force and eloquence the consequences of their becoming severed from the rest of the country. Virginia was not, he said, invulnerable. She was accessible to a foreign enemy by sea, and through the waters of the Chesapeake. Her situation by land was not less exposed. Her frontiers adjoined the States of Pennsylvania, Maryland, and North Carolina. With the first she had long had a disputed boundary, concerning which there had been imminent danger of a war, that had been averted with the greatest difficulty. With Maryland, there was an ancient controversy upon the navigation of the Potomac, and that controversy, if decided on grounds of strict right, would be determined by the charter of Maryland in favor of that State. With North Carolina, too, the boundary was still unsettled. Let them call to mind, then, the history of every part of the world, where independent nations bordered in the same way on one another. Such countries had ever been a perpetual scene of bloodshed; the inhabitants of one escaping from punishment into the other,--protection given to them,--consequent pursuit, violence, robbery, and murder. A numerous standing army, that dangerous expedient, could alone defend such borders. On her Western frontier, Virginia was peculiarly exposed to the savages, the natural enemies of the white race, whom foreign gold could always incite to commit the most horrible ravages upon her people. Her slave population, bearing a very large proportion to the whites,[453] necessarily weakened her capacity to defend herself against such an enemy. Virginia, then, must be defended. Could they rely on the militia? Their militia did not, at the utmost, exceed sixty thousand men. They had performed exploits of great gallantry during the late war, but no militia could be relied on as the sole protectors of any country. Besides, a part of them would be wanted for the purposes of agriculture, for manufactures, and for the mechanic arts necessary for the aid of the farmer and the planter. They must have an army; and they must also have a navy. But how were these to be maintained without money? The enormous debt of Virginia, including her proportion of the Continental debts, was already beyond her ability to pay from any revenue that could be derived from her present commerce. In this state of things, looking forward to the consequences of a dissolution of the Union, he could not but remind the people of Virginia of what took place in 1781, when the power of a dictator was given to the commander-in-chief, to save the country from destruction. At some period, not very remote, might not their future distress impel them to do what the Dutch had done,--throw all power into the hands of a Stadtholder? How infinitely more wise and eligible than this desperate alternative would be a union with their American brethren. "I have labored," said he, "for the continuance of the Union,--the rock of our salvation. I believe, as surely as that there is a God, that our safety, our political happiness and existence, depend on the union of the States; and that, without this union, the people of this and the other States will undergo the unspeakable calamities which discord, faction, turbulence, war, and bloodshed have produced in other countries. The American spirit ought to be mixed with American pride, to see the Union magnificently triumphant. Let that glorious pride, which once defied the British thunder, reanimate you again. Let it not be recorded of Americans, that, after having performed the most gallant exploits, after having overcome the most astonishing difficulties, and after having gained the admiration of the world by their incomparable valor and policy, they lost their acquired reputation, their national consequence and happiness, by their own indiscretion. Let no future historian inform posterity that they wanted wisdom and virtue to concur in any regular, efficient government. Should any writer, doomed to so disagreeable a task, feel the indignation of an honest historian, he would reprehend our folly with equal severity and justice. Catch the present moment,--seize it with avidity,--for it may be lost, never to be regained! If the Union be now lost, I fear it will remain so for ever. I believe gentlemen are sincere in their opposition, and actuated by pure motives; but when I maturely weigh the advantages of the Union, and the dreadful consequences of its dissolution; when I see safety on my right, and destruction on my left; when I behold respectability and happiness acquired by one course, but annihilated by the other,--I cannot hesitate in my decision."[454] NOTE.--The following account of the genealogy of Governor Randolph, for which I am indebted to one of his female descendants, was not received in season to be incorporated in the text. Edmund Randolph was the son of John Randolph and grandson of Sir John Randolph, each of whom was Attorney-General of the Colony under the royal government. He was educated at William and Mary's College. Peyton Randolph, President of the First Continental Congress, was also a son of Sir John Randolph, and of course was uncle of Edmund Randolph, to whom he devised his estate. Sir John Randolph was one of five or six sons of William Randolph of Turkey Island in Virginia, from whom all the Randolphs in Virginia are descended. Of this William Randolph little is known, beyond the fact that he was a large landholder, and a nephew of Thomas Randolph, the poet, who flourished in the reigns of James I. and Charles I., 1605-1634. FOOTNOTES: [451] His own description of himself in a speech made in the Virginia Convention which ratified the Constitution. Elliot, III. 65. [452] Washington's Writings, IX. 66. [453] He stated the number of blacks to be 236,000, and that of the whites only 352,000. [454] Debates in the Virginia Convention, Elliot, III. 65-84, 85, 86. CHAPTER XVI. CONCLUSION OF THE PRESENT VOLUME. The limits of this volume do not admit of a farther description of the Framers of the Constitution. The nine persons of whom some account has been given were the most important members of the Convention, and those who exercised the largest influence upon its decisions. But the entire list embraced other men of great distinction and ability, celebrated, before and since the Convention, in that period of the political history of America which commenced with the Revolution and closed with the eighteenth century. Such were Roger Sherman of Connecticut, Robert Morris of Pennsylvania, John Dickinson of Delaware, John Rutledge and Charles Pinckney of South Carolina, and George Mason of Virginia. Of the rest, all were men of note and influence in their respective States, possessing the full confidence of the people whom they represented. The whole assembly consisted of only fifty-five members, representing twelve sovereign and distinct communities.[455] That so small a body should have contained so large a number of statesmen of preëminent ability is a striking proof of the nature of the crisis which called it into existence. The age which had witnessed the Revolution, and the wants and failures that succeeded it, produced and trained these great men, made them capable of the highest magnanimity, and gave them the intellectual power necessary to surmount the difficulties that obstructed the progress of their country to prosperity and renown. These, with a few of their contemporaries at that moment engaged in other spheres of public duty, are the men who illustrate and adorn it, and the knowledge of their lives and actions is of unspeakable importance to the people of the United States. To that people is committed a trust, which imposes upon them a greater responsibility than now rests upon any other people on the globe. They possess a written and exact constitution of government, framed with great wisdom by their own deputed agents, and deliberately adopted and enacted by themselves. That Constitution rules over a country of vast extent, inhabited by more than twenty millions of prosperous and intelligent freemen, who constitute one of the first nations of the world. Nowhere on the face of the globe has the experiment of self-government--that experiment so rarely tried, so rarely successful, and so important to the welfare of mankind--been conducted on a scale so grand and imposing. To prevent a failure so disastrous to the best interests of the human race as the failure of that experiment here must inevitably become; to guard this Constitution, the work of their own hands, from every kind of attack; to administer it in the wise spirit in which it was framed; to draw from it the blessings which it was designed to confer; to unfold, to cherish, and to defend its great principles for the benefit of a countless posterity;--this is the high duty imposed by a noble ancestry and an overruling Providence upon the people of this Union of each succeeding generation. It calls upon them, with a remonstrance in whose tones there is both a warning and a cheering voice, to remember that they have a country; to appreciate and fearlessly to survey the truth, that national honor and success, internal tranquillity and peace, reputation abroad and safety at home, can exist, for them, only under the Union which the Divine government, for its own all-wise purposes, has made a necessity of their condition; and to see that the ruin of self-government in America must involve its ruin for the whole world.[456] FOOTNOTES: [455] For a full list of the Delegates, see the Appendix to this volume. [456] In this connection, I cannot avoid a reference to Dr. Francis Lieber's profound and admirable work "On Civil Liberty and Self-government." Whoever will follow that very able writer in his masterly exposition of the principles of Anglican liberty, will become satisfied that the American branch of it is more strictly a system of "self-government" than any other, speaking with reference to the application of the principle to every department. The destruction of such a system, therefore, would be the destruction of self-government in its most complete form. No one can suppose that the popular principles in the English Constitution would continue to expand, as they have done for the last fifty years, if the corresponding principles in America were to be overthrown, or even if they were to receive a sensible check. APPENDIX. IN CONGRESS. CIRCULAR LETTER OF CONGRESS RECOMMENDING THE ADOPTION OF THE ARTICLES OF CONFEDERATION. IN CONGRESS, YORKTOWN, November 17th, 1777. Congress having agreed upon a plan of confederacy for securing the freedom, sovereignty, and independence of the United States, authentic copies are now transmitted for the consideration of the respective legislatures. This business, equally intricate and important, has in its progress been attended with uncommon embarrassments and delay, which the most anxious solicitude and persevering diligence could not prevent. To form a permanent union, accommodated to the opinion and wishes of the delegates of so many States differing in habits, produce, commerce, and internal police, was found to be a work which nothing but time and reflection, conspiring with a disposition to conciliate, could mature and accomplish. Hardly is it to be expected that any plan, in the variety of provisions essential to our union, should exactly correspond with the maxims and political views of every particular State. Let it be remarked, that, after the most careful inquiry and the fullest information, this is proposed as the best which could be adapted to the circumstances of all, and as that alone which affords any tolerable prospect of general satisfaction. Permit us, then, earnestly to recommend these articles to the immediate and dispassionate attention of the legislatures of the respective States. Let them be candidly reviewed, under a sense of the difficulty of combining in one general system the various sentiments and interests of a continent divided into so many sovereign and independent communities, under a conviction of the absolute necessity of uniting all our counsels and all our strength to maintain and defend our common liberties; let them be examined with a liberality becoming brethren and fellow-citizens surrounded by the same imminent dangers, contending for the same illustrious prize, and deeply interested in being for ever bound and connected together by ties the most intimate and indissoluble; and, finally, let them be adjusted with the temper and magnanimity of wise and patriotic legislators, who, while they are concerned for the prosperity of their own more immediate circle, are capable of rising superior to local attachments, when they may be incompatible with the safety, happiness, and glory of the general confederacy. We have reason to regret the time which has elapsed in preparing this plan for consideration; with additional solicitude we look forward to that which must be necessarily spent before it can be ratified. Every motive loudly calls upon us to hasten its conclusion. More than any other consideration, it will confound our foreign enemies, defeat the flagitious practices of the disaffected, strengthen and confirm our friends, support our public credit, restore the value of our money, enable us to maintain our fleets and armies, and add weight and respect to our counsels at home and to our treaties abroad. In short, this salutary measure can no longer be deferred. It seems essential to our very existence as a free people, and without it we may feel constrained to bid adieu to independence, to liberty and safety,--blessings which, from the justice of our cause and the favor of our Almighty Creator visibly manifested in our protection, we have reason to expect, if, in an humble dependence on his divine providence, we strenuously exert the means which are placed in our power. To conclude, if the legislature of any State shall not be assembled, Congress recommend to the executive authority to convene it without delay; and to each respective legislature it is recommended to invest its delegates with competent powers ultimately, in the name and behalf of the State, to subscribe Articles of Confederation and Perpetual Union of the United States; and to attend Congress for that purpose on or before the tenth day of March next. * * * * * NEW JERSEY. REPRESENTATION OF THE STATE OF NEW JERSEY ON THE ARTICLES OF CONFEDERATION, READ IN CONGRESS, JUNE 25, 1778. _To the United States in Congress assembled: The Representation of the Legislative Council and General Assembly of the State of New Jersey showeth_:-- That the Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, proposed by the honorable the Congress of the said States, severally for their consideration, have been by us fully and attentively considered; on which we beg leave to remark as follows:-- 1. In the fifth article, where, among other things, the qualifications of the delegates from the several States are described, there is no mention of any oath, test, or declaration, to be taken or made by them previous to their admission to seats in Congress. It is, indeed, to be presumed the respective States will be careful that the delegates they send to assist in managing the general interest of the Union take the oaths to the government from which they derive their authority; but as the United States, collectively considered, have interests, as well as each particular State, we are of opinion that some test or obligation binding upon each delegate while he continues in the trust, to consult and pursue the former as well as the latter, and particularly to assent to no vote or proceeding which may violate the general confederation, is necessary. The laws and usages of all civilized nations evince the propriety of an oath on such occasions; and the more solemn and important the deposit, the more strong and explicit ought the obligation to be. 2. By the sixth and ninth articles, the regulation of trade seems to be committed to the several States within their separate jurisdictions, in such a degree as may involve many difficulties and embarrassments, and be attended with injustice to some States in the Union. We are of opinion, that the sole and exclusive power of regulating the trade of the United States with foreign nations ought to be clearly vested in the Congress; and that the revenue arising from all duties and customs imposed thereon ought to be appropriated to the building, equipping, and manning a navy for the protection of the trade and defence of the coasts, and to such other public and general purposes as to the Congress shall seem proper, and for the common benefit of the States. This principle appears to us to be just, and it may be added, that a great security will by this means be derived to the Union from the establishment of a common and mutual interest. 3. It is wisely provided, in the sixth article, that no body of forces shall be kept up by any State in time of peace, except such number only as, in the judgment of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such States. We think it ought also to be provided and clearly expressed, that no body of troops be kept up by the United States in time of peace, except such number only as shall be allowed by the assent of the nine States. A standing army, a military establishment, and every appendage thereof, in time of peace, is totally abhorrent from the ideas and principles of this State. In the memorable act of Congress declaring the United Colonies free and independent States, it is emphatically mentioned, as one of the causes of separation from Great Britain, that the sovereign thereof had kept up among us, in time of peace, standing armies without the consent of the legislatures. It is to be wished the liberties and happiness of the people may by the Confederation be carefully and explicitly guarded in this respect. 4. On the eighth article we observe, that, as frequent settlements of the quotas for supplies and aids to be furnished by the several States in support of the general treasury will be requisite, so they ought to be secured. It cannot be thought improper, or unnecessary, to have them struck once at least in every five years, and oftener if circumstances will allow. The quantity or value of real property in some States may increase much more rapidly than in others; and therefore the quota which is at one time just will at another be disproportionate. 5. The boundaries and limits of each State ought to be fully and finally fixed and made known. This we apprehend would be attended with very salutary effects, by preventing jealousies, as well as controversies, and promoting harmony and confidence among the States. If the circumstances of the times would not admit of this, previous to the proposal of the Confederation to the several States, the establishment of the principles upon which and the rule and mode by which the determination might be conducted at a time more convenient and favorable for despatching the same at an early period, not exceeding five years from the final ratification of the Confederation, would be satisfactory. 6. The ninth article provides, that no State shall be deprived of territory for the benefit of the United States. Whether we are to understand, that by territory is intended any land, the property of which was heretofore vested in the crown of Great Britain, or that no mention of such land is made in the Confederation, we are constrained to observe, that the present war, as we always apprehended, was undertaken for the general defence and interest of the confederating Colonies, now the United States. It was ever the confident expectation of this State, that the benefits derived from a successful contest were to be general and proportionate; and that the property of the common enemy, falling in consequence of a prosperous issue of the war, would belong to the United States, and be appropriated to their use. We are therefore greatly disappointed in finding no provision made in the Confederation for empowering the Congress to dispose of such property, but especially the vacant and impatented lands, commonly called the crown lands, for defraying the expenses of the war, and for such other public and general purposes. The jurisdiction ought in every instance to belong to the respective States within the charter or determined limits of which such lands may be seated; but reason and justice must decide that the property which existed in the crown of Great Britain, previous to the present Revolution, ought now to belong to the Congress, in trust for the use and benefit of the United States. They have fought and bled for it in proportion to their respective abilities; and therefore the reward ought not to be predilectionally distributed. Shall such States as are shut out by situation from availing themselves of the least advantage from this quarter be left to sink under an enormous debt, whilst others are enabled, in a short period, to replace all their expenditures from the hard earnings of the whole confederacy? 7. The ninth article also provides, that requisitions for the land forces to be furnished by the several States shall be proportioned to the number of _white_ inhabitants in each. In the act of Independence we find the following declaration: "We hold these truths to be self-evident, that all men are created equal; that they are endued by their Creator with certain unalienable rights, among which are life, liberty, and the pursuit of happiness." Of this doctrine it is not a very remote consequence, that all the inhabitants of every society, be the color of their complexion what it may, are bound to promote the interest thereof, according to their respective abilities. They ought, therefore, to be brought into the account on this occasion. But admitting necessity or expediency to justify the refusal of liberty in certain circumstances to persons of a peculiar color, we think it unequal to reckon upon such in this case. Should it be improper, for special local reasons, to admit them in arms for the defence of the nation, yet we conceive the proportion of forces to be embodied ought to be fixed according to the whole number of inhabitants in the State, from whatever class they may be raised. If the whole number of inhabitants in a State, whose inhabitants are all whites, both those who are called into the field, and those who remain to till the ground and labor in the mechanical arts and otherwise, are reckoned in the estimate for striking the proportion of forces to be furnished by that State, ought even a part of the latter description to be left out in another? As it is of indispensable necessity in every war, that a part of the inhabitants be employed for the uses of husbandry and otherwise at home, while others are called into the field, there must be the same propriety that the owners of a different color who are employed for this purpose in one State, while whites are employed for the same purpose in another, be reckoned in the account of the inhabitants in the present instance. 8. In order that the quota of troops to be furnished in each State on occasion of a war may be equitably ascertained, we are of opinion that the inhabitants of the several States ought to be numbered as frequently as the nature of the case will admit, once at least every five years. The disproportioned increase in the population of different States may render such provisions absolutely necessary. 9. It is provided in the ninth article, that the assent of nine States out of the thirteen shall be necessary to determine in sundry cases of the highest concern. If this proportion be proper and just, it ought to be kept up, should the States increase in number, and a declaration thereof be made for the satisfaction of the Union. That we think it our indispensable duty to solicit the attention of Congress to these considerations and remarks, and to request that the purport and meaning of them be adopted as part of the general confederation; by which means we apprehend the mutual interest of all the States will be better secured and promoted, and that the legislature of this State will then be justified in ratifying the same. ACT OF NEW JERSEY ACCEPTING THE CONFEDERATION, PASSED NOVEMBER 19, 1778. _An Act to authorize and empower the Delegates of the State of New Jersey in Congress to subscribe and ratify the Articles of Confederation and Perpetual Union between the several States._ Whereas, Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed in the Congress of the said States by the Honorable Henry Laurens, Esquire, their President, have been laid before the legislature of this State, to be ratified by the same, if approved: And whereas, notwithstanding the terms of the said Articles of Confederation and Perpetual Union are considered as in divers respects unequal and disadvantageous to this State, and the objections to several of the said articles, lately stated and sent to the general Congress aforesaid on the part of this State, are still viewed as just and reasonable, and sundry of them as of the most essential moment to the welfare and happiness of the good people thereof: Yet, under the full conviction of the present necessity of acceding to the confederacy proposed, and that every separate and detached State interest ought to be postponed to the general good of the Union: And moreover, in firm reliance that the candor and justice of the several States will, in due time, remove as far as possible the inequality which now subsists:-- SECT. 1. Be it enacted by the Council and General Assembly of this State, and it is hereby enacted by the authority of the same, That the Honorable John Witherspoon, Abraham Clark, Nathaniel Scudder, and Elias Boudinot, Esquires, delegates representing this State in the Congress of the United States, or any one or more of them, be and they are hereby authorized, empowered, and directed, on behalf of this State, to subscribe and ratify the said Articles of Confederation and Perpetual Union between the States aforesaid. SECT. 2. And be it further enacted by the authority aforesaid, That the said Articles of Confederation and Perpetual Union, so as aforesaid subscribed and ratified, shall thenceforth become conclusive as to this State, and obligatory thereon. * * * * * DELAWARE. RESOLUTIONS PASSED BY THE COUNCIL OF THE STATE OF DELAWARE, JANUARY 23, 1779, RESPECTING THE ARTICLES OF CONFEDERATION AND PERPETUAL UNION, AND CONCURRED IN BY THE HOUSE OF ASSEMBLY, JANUARY 28, 1779, PREVIOUS TO THEIR PASSING A LAW TO EMPOWER THEIR DELEGATES TO SIGN AND RATIFY THE SAID ARTICLES OF CONFEDERATION AND PERPETUAL UNION. _Resolved_, That the paper laid before Congress by the delegate from Delaware, and read, be filed; provided, that it shall never be considered as admitting any claim by the same set up or intended to be set up. The paper is as follows, viz.:-- IN THE COUNCIL, Saturday, January 23, 1779, P. M. The Council, having resumed the consideration of the committee's report on the Articles of Confederation and Perpetual Union, &c., came to the following resolutions therein:-- _Resolved_, That this State think it necessary for the peace and safety of the States to be included in the Union, that a moderate extent of limits should be assigned for such of those States as claim to the Mississippi or South Sea; and that the United States in Congress assembled should and ought to have the power of fixing their western limits. _Resolved also_, That this State consider themselves justly entitled to a right, in common with the members of the Union, to that extensive tract of country which lies to the westward of the frontiers of the United States, the property of which was not vested in, or granted to, individuals at the commencement of the present war: That the same hath been, or may be, gained from the king of Great Britain, or the native Indians, by the blood and treasure of all, and ought therefore to be a common estate, to be granted out on terms beneficial to the United States. _Resolved also_, That the courts of law established within this State are competent for the purpose of determining all controversies concerning the private right of soil claimed within the same; and they now, and at all times hereafter, ought to have cognizance of all such controversies: That the indeterminate provision, in the ninth article of the Confederation, for deciding upon controversies that may arise about some of those private rights of soil, tends to take away such cognizance, and is contrary to the declaration of rights of this State; and therefore ought to receive an alteration. The Council, then, taking into consideration the strong and earnest recommendations of Congress forthwith to accede to the present plan of confederacy, and the probable disadvantages that may attend the further delaying a ratification thereof,-- _Resolved_, That, notwithstanding the terms of the Articles of Confederation aforesaid are considered as in divers respects unequal and disadvantageous to this State, and the objections in the report of the committee of this house, and the resolves made thereon, are viewed as just and reasonable, and of great moment to the welfare and happiness of the good people thereof; yet, under the full conviction of the present necessity of acceding to the confederacy proposed, and in firm reliance that the candor and justice of the several States will in due time remove as far as possible the objectionable parts thereof, the delegates appointed to represent this State in Congress, or any one or more of them, be authorized, empowered, and directed, on behalf of this State, to subscribe and ratify the said Articles of Confederation and Perpetual Union between the several States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and that the said articles, when so subscribed and ratified, shall be obligatory on this State. Extract from the Minutes. BENJAMIN VINING, _Clerk of the Council_. Sent for concurrence. IN HOUSE OF ASSEMBLY, Thursday, January 28, 1779. The foregoing resolutions being read three times, and considered, are concurred in. NICHOLAS VAN DYKE, _Speaker_. THURSDAY, FEBRUARY 16, 1779. Mr. M'Kean, a delegate for Delaware, laid before Congress the following instrument, empowering the delegates of that State, or any of them, to ratify and sign the Articles of Confederation. His Excellency Cesar Rodney, Esquire, President, Captain-General, and Commander-in-Chief of the Delaware State, to all to whom these Presents shall come,--Greeting. Know ye, That, among the records remaining in the rolls office in the Delaware State, there is a certain instrument of writing, purporting to be an act of the General Assembly of the said State, which said act is contained in the words and tenor here following, to wit: IN THE YEAR 1779. _An Act to authorize and empower the Delegates of the Delaware State to subscribe and ratify the Articles of Confederation and Perpetual Union between the several States._ Whereas Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed in the general Congress of the said States by the Honorable Henry Laurens, Esquire, their then President, have been laid before the legislature of this State, to be ratified by the same, if approved: And whereas, notwithstanding the terms of the Articles of Confederation and Perpetual Union are considered as in divers respects unequal and disadvantageous to this State; and the objections stated on the part of this State are viewed as just and reasonable, and of great moment to the welfare and happiness of the good people thereof; yet, under the full conviction of the present necessity of acceding to the present confederacy proposed, and that the interest of particular States ought to be postponed to the general good of the Union; and moreover, in firm reliance that the candor and justice of the several States will in due time remove as far as possible the objectionable parts thereof: Be it enacted by the General Assembly of Delaware, and it is hereby enacted by the authority of the same, That the Honorable John Dickinson, Nicholas Van Dyke, and Thomas M'Kean, Esquires, delegates appointed to represent this State in Congress, or any one or more of them, be, and they hereby are, authorized, empowered, and directed, on behalf of this State, to subscribe and ratify the said Articles of Confederation and Perpetual Union between the several States aforesaid. And be it further enacted by the authority aforesaid, That the said Articles of Confederation and Perpetual Union, so as aforesaid subscribed and ratified, shall thenceforth become obligatory on this State. Signed by order of the House of Assembly. NICHOLAS VAN DYKE, _Speaker_. Signed by order of the Council. THOMAS COLLINS, _Speaker_. Passed at Dover, February 1, 1779. All which, by the tenor of these presents, I have caused to be exemplified. In testimony whereof, the great seal of the Delaware State is hereunto affixed, at Dover, the sixth day of February, in the year of our Lord one thousand seven hundred and seventy-nine, and in the third year of the Independence of the United States of America. CESAR RODNEY. By his Excellency's command. JAMES BOOTH, _Secretary_. * * * * * MARYLAND. FRIDAY, MAY 21, 1779. The delegates of Maryland informed Congress that they have received instructions respecting the Articles of Confederation, which they are directed to lay before Congress, and have entered on their Journals. The instructions, being read, are as follows:-- _Instructions of the General Assembly of Maryland, to George Plater, William Paca, William Carmichael, John Henry, James Forbes, and Daniel of St. Thomas Jenifer, Esquires._ GENTLEMEN,-- Having conferred upon you a trust of the highest nature, it is evident we place great confidence in your integrity, abilities, and zeal to promote the general welfare of the United States, and the particular interest of this State, where the latter is not incompatible with the former; but to add greater weight to your proceedings in Congress, and take away all suspicion that the opinions you there deliver and the votes you give may be the mere opinions of individuals, and not resulting from your knowledge of the sense and deliberate judgment of the State you represent, we think it our duty to instruct as followeth on the subject of the Confederation,--a subject in which, unfortunately, a supposed difference of interest has produced an almost equal division of sentiments among the several States composing the Union. We say a supposed difference of interests; for if local attachments and prejudices, and the avarice and ambition of individuals, would give way to the dictates of a sound policy, founded on the principles of justice, (and no other policy but what is founded on those immutable principles deserves to be called sound,) we flatter ourselves this apparent diversity of interests would soon vanish, and all the States would confederate on terms mutually advantageous to all; for they would then perceive that no other confederation than one so formed can be lasting. Although the pressure of immediate calamities, the dread of their continuance from the appearance of disunion, and some other peculiar circumstances, may have induced some States to accede to the present Confederation, contrary to their own interests and judgments, it requires no great share of foresight to predict, that, when those causes cease to operate, the States which have thus acceded to the Confederation will consider it as no longer binding, and will eagerly embrace the first occasion of asserting their just rights, and securing their independence. Is it possible that those States who are ambitiously grasping at territories to which, in our judgment, they have not the least shadow of exclusive right, will use with greater moderation the increase of wealth and power derived from those territories, when acquired, than what they have displayed in their endeavors to acquire them? We think not. We are convinced the same spirit which hath prompted them to insist on a claim so extravagant, so repugnant to every principle of justice, so incompatible with the general welfare of all the States, will urge them on to add oppression to injustice. If they should not be incited by a superiority of wealth and strength to oppress by open force their less wealthy and less powerful neighbors, yet depopulation, and consequently the impoverishment, of those States will necessarily follow, which, by an unfair construction of the Confederation, may be stripped of a common interest, and the common benefits derivable from the Western country. Suppose, for instance, Virginia indisputably possessed of the extensive and fertile country to which she has set up a claim, what would be the probable consequences to Maryland of such an undisturbed and undisputed possession? They cannot escape the least discerning. Virginia, by selling on the most moderate terms a small proportion of the lands in question, would draw into her treasury vast sums of money; and in proportion to the sums arising from such sales would be enabled to lessen her taxes. Lands comparatively cheap, and taxes comparatively low, with the lands and taxes of an adjacent State, would quickly drain the State thus disadvantageously circumstanced of its most useful inhabitants; its wealth and its consequence in the scale of the confederated States would sink of course. A claim so injurious to more than one half, if not to the whole, of the United States, ought to be supported by the clearest evidence of the right. Yet what evidences of that right have been produced? What arguments alleged in support either of the evidences or the right? None that we have heard of deserving a serious refutation. It has been said, that some of the delegates of a neighboring State have declared their opinion of the practicability of governing the extensive dominion claimed by that State. Hence also the necessity was admitted of dividing its territory, and erecting a new State under the auspices and direction of the elder, from whom no doubt it would receive its form of government, to whom it would be bound by some alliance or confederacy, and by whose councils it would be influenced. Such a measure, if ever attempted, would certainly be opposed by the other States as inconsistent with the letter and spirit of the proposed Confederation. Should it take place by establishing a sub-confederacy, _imperium in imperio_, the State possessed of this extensive dominion must then either submit to all the inconveniences of an overgrown and unwieldy government, or suffer the authority of Congress to interpose at a future time, and to lop off a part of its territory, to be erected into a new and free State, and admitted into a confederation on such conditions as shall be settled by nine States. If it is necessary for the happiness and tranquillity of a State thus overgrown, that Congress should hereafter interfere and divide its territory, why is the claim to that territory now made, and so pertinaciously insisted on? We can suggest to ourselves but two motives; either the declaration of relinquishing at some future period a proportion of the country now contended for was made to lull suspicion asleep, and to cover the designs of a secret ambition, or, if the thought was seriously entertained, the lands are now claimed to reap an immediate profit from the sale. We are convinced, policy and justice require, that a country unsettled at the commencement of this war, claimed by the British crown, and ceded to it by the treaty of Paris, if wrested from the common enemy by the blood and treasure of the thirteen States, should be considered as a common property, subject to be parcelled out by Congress into free, convenient, and independent governments, in such manner and at such times as the wisdom of that assembly shall hereafter direct. Thus convinced, we should betray the trust reposed in us by our constituents, were we to authorize you to ratify, on their behalf, the Confederation, unless it be further explained. We have coolly and dispassionately considered the subject; we have weighed probable inconveniences and hardships against the sacrifice of just and essential rights; and do instruct you not to agree to the Confederation, unless an article or articles be added thereto in conformity with our declaration. Should we succeed in obtaining such article or articles, then you are hereby fully empowered to accede to the Confederation. That these our sentiments respecting our Confederation may be more publicly known, and more explicitly and concisely declared, we have drawn up the annexed declaration, which we instruct you to lay before Congress, to have it printed, and to deliver to each of the delegates of the other States in Congress assembled copies thereof, signed by yourselves, or by such of you as may be present at the time of delivery; to the intent and purpose that the copies aforesaid may be communicated to our brethren of the United States, and the contents of the said declaration taken into their serious and candid consideration. Also we desire and instruct you to move, at a proper time, that these instructions be read to Congress by their Secretary, and entered on the Journals of Congress. We have spoken with freedom, as became freemen; and we sincerely wish that these our representations may make such an impression on that assembly as to induce them to make such addition to the Articles of Confederation as may bring about a permanent union. A true copy from the proceeding of December 15, 1778. Test, T. DUCKETT, _C. H. D._ * * * * * IN CONGRESS. SATURDAY, APRIL 1, 1780. The committee to whom was referred the act of the legislature of the State of New York, entitled, "An Act to facilitate the completion of the Articles of Confederation and Perpetual Union among the United States of America," report,-- That, having met on the business, but not being able to agree to any resolution thereon, desire to be discharged; which act is in the words following, viz.:-- _An Act to facilitate the Completion of the Articles of Confederation and Perpetual Union among the United States of America._ Whereas nothing under Divine Providence can more effectually contribute to the tranquillity and safety of the United States of America than a federal alliance, on such liberal principles as will give satisfaction to its respective members: And whereas the Articles of Confederation and Perpetual Union recommended by the honorable the Congress of the United States of America have not proved acceptable to all the States, it having been conceived that a portion of the waste and uncultivated territory, within the limits or claim of certain States, ought to be appropriated as a common fund for the expenses of the war: And the people of the State of New York being on all occasions disposed to manifest their regard for their sister States, and their earnest desire to promote the general interest and security; and more especially to accelerate the federal alliance, by removing, as far as it depends upon them, the before-mentioned impediment to its final accomplishment: Be it therefore enacted, by the people of the State of New York, represented in Senate and Assembly, and it is hereby enacted by the authority of the same, That it shall and may be lawful to and for the delegates of this State, in the honorable Congress of the United States of America, or the major part of such of them as shall be assembled in Congress, and they the said delegates, or a major part of them, so assembled, are hereby fully authorized and empowered, for and on behalf of this State, and by proper and authentic acts or instruments, to limit and restrict the boundaries of this State, in the western parts thereof, by such line or lines, and in such manner and form, as they shall judge to be expedient, either with respect to the jurisdiction as well as the right or preëmption of soil, or reserving the jurisdiction in part, or in the whole, over the lands which may be ceded, or relinquished, with respect only to the right or preëmption of the soil. And be it further enacted by the authority aforesaid, That the territory which may be ceded or relinquished by virtue of this act, either with respect to the jurisdiction as well as the right or preëmption of soil, or the right or preëmption of soil only, shall be and enure for the use and benefit of such of the United States as shall become members of the federal alliance of the said States, and for no other use or purpose whatever. And be it further enacted by the authority aforesaid, That all the lands to be ceded and relinquished by virtue of this act, for the benefit of the United States, with respect to property, but which shall nevertheless remain under the jurisdiction of this State, shall be disposed of and appropriated in such manner only as the Congress of the said States shall direct; and that a warrant under the authority of Congress for surveying and laying out any part thereof shall entitle the party in whose favor it shall issue to cause the same to be surveyed and laid out and returned according to the directions of such warrant; and thereupon letters patent under the great seal of this State shall pass to the grantee for the estate specified in the said warrant; for which no other fee or reward shall be demanded or received than such as shall be allowed by Congress. Provided always, and be it further enacted by the authority aforesaid, That the trust reposed by virtue of this act shall not be executed by the delegates of this State, unless at least three of the said delegates shall be present in Congress. _State of New York, ss._ I do hereby certify that the aforegoing is a true copy of the original act, passed the 19th of February, 1780, and lodged in the Secretary's office. ROBERT HARPUR, _D'y Sec'y State_. WEDNESDAY, SEPTEMBER 6, 1780. Congress took into consideration the report of the committee to whom were referred the instructions of the General Assembly of Maryland to their delegates in Congress respecting the Articles of Confederation, and the declaration therein referred to; the act of the legislature of New York on the same subject; and the remonstrance of the General Assembly of Virginia, which report was agreed to, and is in the words following:-- That, having duly considered the several matters to them submitted, they conceive it unnecessary to examine into the merits or policy of the instructions or declaration of the General Assembly of Maryland, or of the remonstrances of the General Assembly of Virginia, as they involve questions a discussion of which was declined, on mature consideration, when the Articles of Confederation were debated; nor, in the opinion of the committee, can such questions be now revived with any prospect of conciliation: That it appears more advisable to press upon these States which can remove the embarrassments respecting the Western country a liberal surrender of a portion of their territorial claims, since they cannot be preserved entire without endangering the stability of the general confederacy; to remind them how indispensably necessary it is to establish the Federal Union on a fixed and permanent basis, and on principles acceptable to all its respective members; how essential to public credit and confidence, to the support of our army, to the vigor of our councils, and success of our measures, to our tranquillity at home, our reputation abroad, to our very existence as a free, sovereign, and independent people; that we are fully persuaded the wisdom of the respective legislatures will lead them to a full and impartial consideration of a subject so interesting to the United States, and so necessary to the happy establishment of the Federal Union; that they are confirmed in these expectations by a view of the before-mentioned act of the legislature of New York, submitted to their consideration; that this act is expressly calculated to accelerate the federal alliance, by removing, as far as depends on that State, the impediment arising from the Western country, and for that purpose to yield up a portion of territorial claim for the general benefit. Whereupon, _Resolved_, That copies of the several papers referred to the committee be transmitted, with a copy of the report, to the legislatures of the several States; and that it be earnestly recommended to these States who have claims to the Western country to pass such laws, and give their delegates in Congress such powers, as may effectually remove the only obstacle to a final ratification of the Articles of Confederation: and that the legislature of Maryland be earnestly requested to authorize their delegates in Congress to subscribe the said articles. * * * * * MARYLAND. MONDAY, FEBRUARY 12, 1781. The delegates of Maryland laid before Congress a certified copy of an act of the legislature of that State, which was read as follows:-- _An Act to empower the Delegates of this State in Congress to subscribe and ratify the Articles of Confederation._ Whereas it hath been said that the common enemy is encouraged, by this State not acceding to the Confederation, to hope that the union of the sister States may be dissolved; and therefore prosecute the war in expectation of an event so disgraceful to America; and our friends and illustrious ally are impressed with an idea, that the common cause would be promoted by our formally acceding to the Confederation: This General Assembly, conscious that this State hath from the commencement of the war strenuously exerted herself in the common cause, and fully satisfied that, if no formal confederation was to take place, it is the fixed determination of this State to continue her exertions to the utmost, agreeable to the faith pledged in the union,--from an earnest desire to conciliate the affections of the sister States, to convince all the world of our unalterable resolution to support the independence of the United States, and the alliance with his most Christian Majesty; and to destroy for ever any apprehension of our friends, or hope in our enemies, of this State being again united to Great Britain: Be it enacted by the General Assembly of Maryland, That the delegates of this State in Congress, or any two or three of them, shall be, and are hereby, empowered and required, on behalf of this State, to subscribe the Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed in the general Congress of the said States by the Honorable Henry Laurens, Esquire, their then President, and laid before the legislature of this State to be ratified, if approved; and that the said Articles of Confederation and Perpetual Union, so as aforesaid subscribed, shall thenceforth be ratified and become conclusive as to this State, and obligatory thereon. And it is hereby declared, that, by acceding to the said Confederation, this State doth not relinquish, or intend to relinquish, any right or interest she hath with the other united or confederated States to the back country; but claims the same as fully as was done by the legislature of this State in their declaration which stands entered on the journals of Congress: this State relying on the justice of the several States hereafter, as to the said claim made by this State. And it is further declared, That no article in the said Confederation can or ought to bind this or any other State to guarantee any exclusive claim of any particular State to the soil of the said back lands, or any such claim of jurisdiction over the said lands, or the inhabitants thereof. By the House of Delegates, January 30, 1781. Read and assented to. By order, F. GREEN, _Clerk_. By the Senate, February 2, 1781. Read and assented to. By order, JAS. MACCUBBIN, _Clerk_. THOMAS LEE. [L. S.] * * * * * ARTICLES OF CONFEDERATION AND PERPETUAL UNION BETWEEN THE STATES OF NEW HAMPSHIRE, MASSACHUSETTS BAY, RHODE ISLAND AND PROVIDENCE PLANTATIONS, CONNECTICUT, NEW YORK, NEW JERSEY, PENNSYLVANIA, DELAWARE, MARYLAND, VIRGINIA, NORTH CAROLINA, SOUTH CAROLINA, AND GEORGIA. ART. 1. The style of this Confederacy shall be "The United States of America." ART. 2. Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled. ART. 3. The said States hereby severally enter into a firm league of friendship with each other for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to or attacks made upon them on account of religion, sovereignty, trade, or any other pretence whatever. ART. 4. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property imported into any State to any other State, of which the owner is an inhabitant; provided also, that no imposition, duties, or restriction shall be laid by any State on the property of the United States, or either of them. If any person guilty of or charged with treason, felony, or other high misdemeanor in any State, shall flee from justice and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offence. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State. ART. 5. For the more convenient management of the general interests of the United States, delegates shall be annually appointed, in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the year. No State shall be represented in Congress by less than two nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or any other for his benefit, receives any salary, fees, or emolument of any kind. Each State shall maintain its own delegates in any meeting of the States, and while they act as members of the committee of the States. In determining questions in the United States in Congress assembled, each State shall have one vote. Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress; and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from and attendance on Congress, except for treason, felony, or breach of the peace. ART. 6. No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No State shall lay any imposts or duties, which may interfere with any stipulations in treaties entered into by the United States in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts of France and Spain. No vessels of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States in Congress assembled for the defence of such State or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only as, in the judgment of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and have constantly ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage. No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies or shall have certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commission to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the kingdom or state and the subjects thereof against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise. ART. 7. When land forces are raised by any State for the common defence, all officers of or under the rank of colonel shall be appointed by the legislatures of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct; and all vacancies shall be filled up by the State which first made the appointment. ART. 8. All charges of war and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States, within the time agreed upon by the United States in Congress assembled. ART. 9. The United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article; of sending and receiving ambassadors; entering into treaties and alliances, provided that no treaty of commerce shall be made, whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever; of establishing rules for deciding in all cases what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in time of peace; appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed judge of any of the said courts. The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever, which authority shall always be exercised in the manner following: whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent commissioners or judges to constitute a court for hearing and determining the matter in question; but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge sufficient, or, being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress, for the security of the parties concerned: provided, that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the Supreme or Superior Court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection, or hope of reward"; provided, also, that no State shall be deprived of territory for the benefit of the United States. All controversies concerning the private right of soil, claimed under different grants of two or more States, whose jurisdictions as they may respect such lands and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States. The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States; fixing the standard of weights and measures throughout the United States; regulating the trade and managing all affairs with the Indians not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated; establishing and regulating post-offices from one State to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office; appointing all officers of the naval forces, and commissioning all officers whatever in the service of the United States; making rules for the government and regulation of the said land and naval forces, and directing their operations. The United States in Congress assembled shall have authority to appoint a committee to sit in the recess of Congress, to be denominated "a Committee of the States," and to consist of one delegate from each State, and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States, under their direction; to appoint one of their number to preside, provided that no person be allowed to serve in the office of President more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses; to borrow money or emit bills on the credit of the United States, transmitting every half-year to the respective States an account of the sums of money so borrowed or emitted; to build and equip a navy; to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldierlike manner, at the expense of the United States; and the officers and men to be clothed, armed, and equipped shall march to the place appointed, and within the time agreed on, by the United States in Congress assembled: but if the United States in Congress assembled shall, on consideration of circumstances, judge proper that any State should not raise men or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared. And the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on, by the United States in Congress assembled. The United States in Congress assembled shall never engage in a war nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them; nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States in Congress assembled. The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request, shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States. ART. 10. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled is requisite. ART. 11. Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into and entitled to all the advantages of this Union; but no other Colony shall be admitted into the same unless such admission be agreed to by nine States. ART. 12. All bills of credit emitted, moneys borrowed, and debts contracted by or under the authority of Congress, before the assembling of the United States, in pursuance of the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged. ART. 13. Every State shall abide by the determinations of the United States in Congress assembled on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. These Articles shall be proposed to the legislatures of all the United States, to be considered, and if approved of by them, they are advised to authorize their delegates to ratify the same in the Congress of the United States; which being done, the same shall become conclusive. * * * * * MEMBERS OF THE CONVENTION WHICH FORMED THE CONSTITUTION.[457] Those with numbers before their names signed the Constitution. Those without numbers attended, but did not sign. The dates denote the first day of their attendance. Those in italics never attended. NEW HAMPSHIRE. 1. John Langdon, 23 July. _John Pickering._ 2. Nicholas Gilman, 23 July. _Benjamin West._ MASSACHUSETTS. _Francis Dana._ Elbridge Gerry, 29 May. 3. Nathaniel Gorham, 28 May. 4. Rufus King, 25 May. Caleb Strong, 28 May. RHODE ISLAND. [No appointment.] CONNECTICUT. 5. William S. Johnson, 2 June. 6. Roger Sherman, 30 May. Oliver Ellsworth, 29 May. NEW YORK. Robert Yates, 25 May. 7. Alexander Hamilton, 25 May. John Lansing, 2 June. NEW JERSEY. 8. William Livingston, 5 June. 9. David Brearley, 25 May. William C. Houston, 25 May. 10. William Patterson, 25 May. _John Neilson._ _Abraham Clark._ 11. Jonathan Dayton, 21 June. PENNSYLVANIA. 12. Benjamin Franklin, 28 May. 13. Thomas Mifflin, 28 May. 14. Robert Morris, 25 May. 15. George Clymer, 28 May. 16. Thomas Fitzsimons, 25 May. 17. Jared Ingersoll, 28 May. 18. James Wilson, 25 May. 19. Gouverneur Morris, 25 May. DELAWARE. 20. George Read, 25 May. 21. Gunning Bedford, Jr. 28 May. 22. John Dickinson, 28 May. 23. Richard Bassett, 25 May. 24. Jacob Broom, 25 May. MARYLAND. 25. James McHenry, 29 May. 26. Daniel of St. Thomas Jenifer, 2 June. 27. Daniel Carroll, 9 July. John Francis Mercer, 6 Aug. Luther Martin, 9 June. VIRGINIA. 28. George Washington, 25 May. _Patrick Henry_ (declined). Edmund Randolph, 25 May. 29. John Blair, 25 May. 30. James Madison, Jr. 25 May. George Mason, 25 May. George Wythe, 25 May. James McClurg (in the room of P. Henry) 25 May. NORTH CAROLINA. _Richard Caswell_ (resigned). Alexander Martin, 25 May. William R. Davie, 25 May. 31. William Blount (in the room of R. Caswell) 20 June. _Willie Jones_ (declined). 32. Richard D. Spaight, 25 May. 33. Hugh Williamson (in the room of W. Jones), 25 May. SOUTH CAROLINA. 34. John Rutledge, 25 May. 35. Charles C. Pinckney, 25 May. 36. Charles Pinckney, 25 May. 37. Pierce Butler, 25 May. GEORGIA. 38. William Few, 25 May. 39. Abraham Baldwin, 11 June. William Pierce, 31 May. _George Walton._ William Houstoun, 1 June. _Nathaniel Pendleton._ FOOTNOTE: [457] This Table is taken from the 12th volume of Mr. Sparks's edition of Washington's Writings, p. 426. END OF VOL. I. * * * * * Transcriber's Notes: Obvious typos and punctuation errors repaired. Period spellings and grammatical uses retained. On rejoining "co-" and "pre-" with "o" and "e" roots at the ends of lines, a diaresis was added to the second "o" or "e" per author practice (for example: coöperation, preëminent). Semicolons were consistently placed outside closing quotes in the original; retained. P. 78, Footnote #97: The form included blank spaces, represented here as underlines. P. 175, Footnote #179: Amount in the original was shown as $1,545,818 followed by 30/90 in fraction form; represented here as "$1,545,818 and 30/90." P. 218, Marker for footnote #200 beginning on this page was missing. I have placed it at the end of the paragraph: "disciplining the militia." P. 431, Marker for footnote #417 beginning on this page was missing. I have placed it at the end of the paragraph: "be for ever directed." P. 489, Dupicate "APPENDIX" heading removed. 
58534	----	THE PRISONER AT THE BAR BOOKS BY ARTHUR TRAIN THE PRISONER AT THE BAR SIDELIGHTS ON THE ADMINISTRATION OF CRIMINAL JUSTICE BY ARTHUR TRAIN Assistant District Attorney, New York County SECOND EDITION REVISED AND ENLARGED NEW YORK CHARLES SCRIBNER'S SONS 1915 Copyright, 1906, 1908, by CHARLES SCRIBNER'S SONS [Illustration] To ETHEL KISSAM TRAIN PREFACE TO THE SECOND EDITION The favorable reception accorded to the "Prisoner at the Bar," not only in the United States but in England, and the fact that it has won a place in several colleges and law schools as a reference book, and in some instances as a sort of elementary text-book upon criminal procedure, have resulted in a demand for a new edition. When the book was written the author's sole intention was to present in readable form a popular account of the administration of criminal justice. Upon its publication he discovered to his surprise that it was the only book of its exact character in the English language or perhaps in any other. Reviewers pointed out that whereas there were annotated text-books of criminal procedure and isolated articles on special topics, most of them relating to the jury system, there was in existence no other sketch of criminal justice as a whole, from arrest to conviction, based upon either actual experience or hearsay. This new edition has been indexed and is supplied with cross-references to other works on allied subjects. A chapter has been added upon "Insanity and the Law," and such statistics as the book contains have been brought down to date. It is satisfactory to add that these show a greatly increased efficiency in the jury system in criminal cases in New York County, and that the tabulations of an eight years' experience as a prosecutor only serve to confirm the conclusions set forth in the first edition. The author desires to express his thanks to Prof. John H. Wigmore, of the Northwestern University Law School, for his many kind suggestions and flattering references to this book in his masterly work upon the law of evidence; to Augustin Derby, Esq., of the New York bar, who most unselfishly gave much time to the examination of references, and voluntarily undertook the ungrateful task of compiling the index; and to those many others who, by comment or appreciation, have made a second edition necessary. _Bar Harbor, Me._, Sept. 1, 1908. PREFACE TO THE FIRST EDITION The prisoner at the bar is a figure little known to most of us. The newspapers keep us steadily informed as to the doings of all sorts of criminals up to the time of their capture, and prison literature is abundant, but just how the criminal becomes a convict is not a matter of common knowledge. This, however, does not prevent the ordinary citizen from expressing pronounced and, frequently, vociferous opinions upon our methods of administering criminal justice, in the same way that he stands ready at any time to criticise the Darwinian theory, free trade or foreign missions. Full knowledge of any subject is inevitably an impediment to forcible asseveration. Generalities are easy to formulate and difficult to disprove. The man who sits with his feet up and his chair tilted back in the "drummer's" hotel will inform you that there is no such thing as criminal justice and that the whole judiciary, state and federal, is "owned" or can be bought; you yourself doubtless believe that the jury system is a failure and successfully evade service upon it; while your neighbor is firmly convinced that prosecutors secure their positions by reason of their similarity to bloodhounds and retain them by virtue of the same token. The only information available to most people on this exceedingly important subject is that offered by the press, and the press (save in the case of sensational murder trials) usually confines itself to dramatic accounts of the arrest of the more picturesque sort of criminals, with lurid descriptions of their offences. The report or "story" concludes with the statement that "Detective-Sergeant Smith immediately arraigned his prisoner (Robinson) before Magistrate Jones, who committed the latter to jail and adjourned the hearing until the following Tuesday." This ends the matter, and the grewsome or ingenious details of the crime having been served up to satisfy the public appetite, and the offender having been locked up, there is nothing, from the reporters' point of view, any longer in the story. We never hear of Robinson again unless he happens to be the president of a bank or a degenerate millionaire. He is "disposed of," as they say in the criminal reports, without exciting anybody's interest, and his conviction or acquittal is not attended by newspaper comment. If on the other hand the case be one of sensational interest we are treated daily to long histories of the defendant and his family, illustrated by grotesque reproductions from the ancestral photograph album. We become familiar with what he eats and drinks, the number of cigars he smokes and his favorite actor and author. The case consumes months in preparation and its trial occupies weeks. A battalion of "special" talesmen marches to the court house,--"the standing army of the gibbet," as one of my professional brethren (on the other side of the bar) calls them. As each of the twelve is chosen his physiognomy appears on the front page of an evening edition, a tear dropping from his eye or his jaws locked in grim determination, in accordance with the sentiments of the editor or the policy of the owner. Then follows a pictorial procession of witnesses. The prosecutor makes a full-page address to the public in the centre of which appears his portrait, heroic size, arm sawing the air. "I am innocent!" cries a purple defendant, in green letters. "Murderer!" hisses a magenta prosecutor, in characters of vermilion. Finally the whole performance comes to an end without anybody having much of an idea of what has actually taken place, and leaving on the public mind an entirely false and distorted conception of what a criminal trial is like. The object of this book is to correct the very general erroneous impression as to certain phases of criminal justice, and to give a concrete idea of its actual administration in large cities in ordinary cases,--cases quite as important to the defendants and to the public as those which attract widespread attention. The millionaire embezzler and the pickpocket are tried before the same judge and the same jury, and the same system suffices to determine the guilt or innocence of the boy who has broken into a cigar store and the actress who has murdered her lover. It is in crowded cities, like New York, containing an excessive foreign-born population, that the system meets with its severest test, and if tried and not found wanting under these conditions it can fairly be said to have demonstrated its practical efficiency and stability. Has the jury system broken down? Are prosecutors habitually vindictive and over-zealous? It is the hope of the writer that the chapters which follow may afford some data to assist the reader in formulating an intelligent opinion upon these and kindred subjects. It is needless to say that no attempt is made to discuss police corruption, the increase or decrease of crime, or penology in general, and the writer has confined himself strictly to that period of the criminals' history described in the title as "AT THE BAR." To my official chief, William Travers Jerome, and to my associates, Charles Cooper Nott, Charles Albert Perkins, and Nathan A. Smyth, I desire to acknowledge my gratitude for their advice and assistance; to my friend, Leonard E. Opdycke, who suggested the collection and correlating of these chapters, I wish to express my thanks for his constant interest and encouragement; but my debt to these is naught compared to that which I owe to her to whom this book is dedicated, who, with unsparing pains, has read, re-read and revised these chapters in manuscript, galley and page and who has united the functions of critic, censor and collaborator with a patience, good humor, and discretion which make writing a joy and proof-reading a vacation. Arthur Train. _Bar Harbor, Me._, Sept. 1, 1906. CONTENTS PAGE Introduction. By Prof. John H. Wigmore xvii CHAPTER I What Is Crime? 1 CHAPTER II Who Are the Real Criminals 19 CHAPTER III The Arrest 31 CHAPTER IV The Police Court 42 CHAPTER V The Trial of Misdemeanors 62 CHAPTER VI The Grand Jury 81 CHAPTER VII The Law's Delays 102 CHAPTER VIII Red Tape 129 CHAPTER IX The Trial of Felonies 148 CHAPTER X The Judge 178 CHAPTER XI The Jury 205 CHAPTER XII The Witness 224 CHAPTER XIII The Verdict 241 CHAPTER XIV The Sentence 261 CHAPTER XV Women in the Courts 279 CHAPTER XVI Tricks of the Trade 303 CHAPTER XVII What Fosters Crime 334 CHAPTER XVIII Insanity and the Law 350 Index 377 INTRODUCTION By Prof. John H. Wigmore, Dean of the Law School of Northwestern University. Mr. Train's book, "The Prisoner at the Bar," as an entertaining and vivid picture of the criminal procedure of to-day, and a repertory of practical experience and serious discussion of present-day problems in the administration of justice, is, in my opinion, both unique and invaluable. I know of no other book which so satisfyingly fills an important but empty place in a modern field. At one extreme stand the scientific psycho-criminologists, usefully investigating and reflecting, but commonly severed from the practical treatment of any branch of the subject until the prison doors are reached. At another extreme are the professional lawyers, skilled in the technique of present procedure, but too much tied by precedent to take anything but a narrow, backward-looking view. Off in a third corner are the economists, sociologists, physicians, and serious citizens in general, who notice that some things are going wrong, but have no accurate conception of what is actually seen and done every day in courts of justice; these good people run the risk of favoring impracticable fads or impossible theories. Now comes Mr. Train's book, casting in the centre of the field an illumination useful to all parties. It enlightens the serious citizen as to the actual experiences of our criminal justice, and shows him the inexorable facts that must be reckoned with in any new proposals. The professional lawyer is stimulated to think over the large tendencies involved in his daily work, to realize that all is _not_ necessarily for the best, and to join and help with his skill. The scientific criminologist is warned against trusting too much to the cobwebs of his ideal theories, or adhering too implicitly to the Lombrosan school or other foreign propaganda, and is forced to keep in mind a living picture of the practical needs of American justice. I do not hesitate to say that every thoughtful American citizen ought to know all the things that are told in this book; and if he did, and as soon as he did, we might then begin to work with encouragement to accomplish in a fashion truly practical as well as scientific the needed improvements in our criminal justice. Such effort is likely to be hopeless until people come to realize _what the facts are_. Judging by my own case, I feel that most people will never really know and appreciate the facts unless they read Mr. Train's book. THE PRISONER AT THE BAR The Prisoner at the Bar CHAPTER I WHAT IS CRIME? A crime is any act or omission to act punishable as such by law. It is difficult, if not impossible, to devise any closer definition. Speaking broadly, crimes are certain acts, usually wrongful, which are regarded as sufficiently dangerous or harmful to society to be forbidden under pain of punishment. The general relation of crimes to wrongs as a whole is sometimes illustrated by a circle having two much smaller circles within it. The outer circle represents wrongful acts in the aggregate; the second, wrongful acts held by law to be _torts_, that is to say, infractions of private rights for which redress may be sought in the civil courts, and the smallest or inner circle, acts held to be so injurious to the public as to be punishable as crimes. This does well enough for the purpose of illustrating the relative proportion of crimes to torts or wrongful acts in general, and, if a tiny dot be placed in the centre of the bull's-eye to represent those crimes which are actually punished, one gets an excellent idea of how infinitely small a number of these serve to keep the whole social fabric in order and sustain the majesty of the law. But the inference might naturally be drawn that whatever was a crime must also be a tort or at least a wrong, which, while true in the majority of instances, is not necessarily the case in all. In a certain sense crimes are always wrongs or, at least, wrong, but only in the sense of being infractions of law are they _always_ wrongs or wrong. [Illustration] The word wrong being the antithesis of the word right, and carrying with it generally some ethical or moral significance, will vary in its meaning according to the ideas of the individual who makes use of it. Indeed, it is conceivable that the only really right thing to do under certain circumstances would be to commit an act designated by law as a crime. So, conversely, while a wrong viewed as an infraction of the laws of God is a sin, that which is universally held sinful is by no means always a crime. Speaking less broadly, a wrong is an infraction of a right belonging to another, which he derives from the law governing the society of which he is a member. Many wrongs are such that he may sue and obtain redress therefor in the courts. But it by no means follows that every crime involves the infraction of a private right or the commission of a tort. Thus "perjury" and most crimes against the State are not torts at all. It will thus be seen that no accurate definition of a crime can be given save that it is an act or omission which the State punishes as such, and that technically the word carries with it no imputation or implication of sin, vice, iniquity, or in a broad sense even of wrong. The act may or may not be repugnant to our ideas of right. Numerically considered, only a minority of crimes have any ethical significance whatever, the majority being designated by the law itself as _mala prohibita_, rather than _mala in se_. It is the duty of a prosecutor to see that infractions of the criminal law are punished and to represent the public in all proceedings had for that purpose, but, in view of what has just been said, it will be observed that his duties do not necessarily involve familiarity with vice, violence or even sin. The crimes he is called upon to prosecute may be disgusting, depraved and wicked, or they may be, and frequently are, interesting, ingenious, amusing or, possibly (though not probably), commendable. For example, a man who chastises the foul slanderer of a young woman's character may have technically committed an assault of high degree, yet if he does so in the proper spirit, in a suitable place, and makes the offender smart sufficiently, he deserves the thanks and congratulations of all decent men and honest women. Yet, indubitably, he has committed a crime, although, thanks to our still lingering spirit of chivalry, he would never be stamped by any jury as a criminal. A prosecutor is frequently asked if he does not find that his experience has a "hardening" effect. "Why should it?" he might fairly reply. "I have to do with criminals, it is true, but the criminals as a rule are little or no worse than the classes of people outside from which they have been drawn. Their arrest and conviction are largely due to accidental causes, such as weak heads, warm hearts, quick temper, ignorance, foolishness or drunkenness. We see all of these characteristics in our immediate associates. A great many convicted persons have done acts which are not wrong at all, but are merely forbidden. Even where their acts are really wrong it is generally the stupid, the unfortunate, or the less skilful who are caught. For every rogue in jail there are at least ten thousand at large. The ones who escape are wiser and very likely meaner. Last, but not least, a very great number of the most despicable, wicked, and harmful deeds that can be committed are not crimes at all. The fact that a man is a criminal argues nothing at all against his general decency, and when I meet a convict I assume, and generally assume correctly, that to most intents and purposes he is a gentleman. The code which puts one man in stripes and allows another to ride in an automobile is purely artificial, and strictly speaking proves not a whit which is the better man." Now while such an answer might seem frivolous enough to the lay reader, it would nevertheless be substantially true. Your criminal, that is to say, strictly, the law-breaker who is brought to book for his offence, is very likely a pretty good sort of fellow as fellows go. If he has been guilty merely of an act which is prohibited, not because of its inherent wrong, but simply on grounds of public policy--_malum prohibitum_--he is probably as good as anybody. His offence may be due to ignorance or accident. Assuming that his crime be one which would seem to involve moral turpitude--_malum in se_--there are very likely mitigating circumstances which render his offence, if not excusable, at least less reprehensible than would appear at first glance. Crimes bear no absolute relation to one another. A murderer may or may not be worse than a thief,--and either may be better than his accuser. The actual danger of any particular offender to the community lies not so much in the kind or degree of crime which he may have committed as in the state of his mind. Even the criminals who are really criminal, in the sense that they have a systematic intention of defying the law and preying upon society, are generally not criminal in all directions, but usually only in one, so that taken upon their unprofessional side they present the same characteristics as ordinary and, roughly speaking, law-abiding citizens. The bank robber usually is a bank robber and nothing more. He specializes in that one pursuit. It is his vocation and his joy. He prides himself on the artistic manner in which he does his work. He would scorn to steal your watch and is a man of honor outside of bank-breaking hours,--"Honor among thieves." Often enough he is a model husband and father. So, too, may be your forger, gambler, swindler, burglar, highwayman, or thief,--any in fact except the real moral pervert; and of course murder is entirely compatible on occasion with a noble, dignified and generous character. "There is nothing essentially incongruous between crime and culture." The prosecutor who begins by loathing and despising the man sitting at the bar may end by having a sincere admiration for his intellect, character or capabilities. This by way of defence to crime in general. Our forefathers contented themselves with a rough distinction between crimes as _mala prohibita_ and _mala in se_. When they sought to classify criminal acts under this arrangement they divided them accordingly as the offence carried or did not carry with it a suggestion of moral turpitude. Broadly speaking, all felonies were and are regarded as _mala in se_. Murder, arson, burglary, theft, etc., in general indubitably imply a depraved mind, while infractions of Sunday observance laws or of statutes governing the trade in liquor do not. Yet it must be perfectly clear that any such distinction is inconclusive. There can be no general rule based merely on the name or kind of crime committed which is going to tell us which offender is really the worst. A misdemeanor may be very much more heinous than a felony. The adulterator of drugs or the employer of illegal child labor may well be regarded as vastly more reprehensible than the tramp who steals part of the family wash. So far as that goes there are an alarming multitude of acts and omissions not forbidden by statute or classed as crimes which are to all intents and purposes fully as criminal as those designated as such by law. This is the inevitable result of the fact that crimes are not crimes merely because they are wrong, but because the State has enjoined them. For example, to push a blind man over the edge of a cliff so that he is killed upon the rocks below is murder, but to permit him to walk over it, although by stretching out your hand you might prevent him, is no crime at all. It is a crime to defame a woman's character if you write your accusation upon a slip of paper and pass it to another, but it is no crime in New York State to arise in a crowded lecture hall and ruin her forever by word of mouth. It is a crime to steal a banana off a fruit-stand, but it is no crime to borrow ten thousand dollars from a man whose entire fortune it is, although you have no expectation of returning it. You can be a swindler all your life--the meanest sort of a mean swindler, but there is no crime of being a swindler or of being a mean man. It is a crime to ruin a girl of seventeen years and eleven months, but not to ruin a girl of eighteen. The "age of consent" varies in the different States. It is a crime to obtain a dollar by means of a false statement as to a past or existing fact, but it is no crime to obtain as much money as you can by any other sort of a lie. Lying is not a crime, but lying under oath is a crime,--provided it be done in a legal proceeding and relates to a _material_ matter. The most learned jurists habitually disagree as to what is material and what is not. Even when the acts to be contrasted are all crimes there is no way of actually discriminating between them except by carefully scrutinizing the circumstances of each. The so-called "degrees" mean little or nothing. If you steal four hundred and ninety-nine dollars out of a man's safe in the daytime it is grand larceny in the second degree. If you pick the same man's pocket of a subway ticket after sunset it is grand larceny in the first degree. You may get five years in the first instance and ten in the second. If you steal twenty-five dollars out of a bureau drawer you commit petty larceny and may be sent to prison for only one year. If the degree of any particular crime of which a defendant is found guilty is no index to his real criminality or of his danger to society, still less is the name of the crime he has committed an index to his moral character, save in the case of certain offences which it is not necessary to enumerate. Most men charged with homicide are indicted for murder in the first degree. This may be a wise course for the grand jury to pursue in view of the additional evidence which often comes to light during a trial. But it frequently is discovered before the case goes to the jury that in point of fact the killing was in hot blood and under circumstances which evince no great moral turpitude in the slayer. For example, two drunken men become involved in an altercation and one strikes the other, who loses his equilibrium and falls, hitting his head against a curbstone and fracturing his skull. The striker is indicted and tried for murder. Now he is doubtless guilty of manslaughter, but he is less dangerous to the community than a professional thief who preys upon the public by impersonating a gasman or telephone repairer and by thus gaining access to private dwellings steals the owner's property. One is an accidental, the other an intentional criminal. One is hostile to society as a whole and the other is probably not really hostile to anybody. Yet the less guilty is denominated a murderer, and the other is rarely held guilty of more than petty larceny. A fellow who bumps into you on the street, if he be accompanied by another, and grabs your cane, is guilty of robbery in the first degree,--"highway" robbery,--and may get twenty years for it, but the same man may publish a malicious libel about you, and by accusing you of the foulest practices rob you of your good name and be only guilty of a misdemeanor. Yet the reader should not infer that definitions and grades of crime capable of corresponding punishments are not proper, desirable, and necessary. Of course they are. The practical use of such statutes is to fix a maximum sentence of punishment. As a rule the minimum is anything the judge sees fit. Hence you may deduce a general principle to the effect that the charge against the prisoner, even assuming his guilt, indicates nothing definite as to his moral turpitude, danger to the community, or general undesirability. But we may honestly go much further. Not only are the names and degrees of the crimes which a defendant may have committed of very little assistance in determining his real criminality, but the fact that he has committed them by no means signifies that he is morally any worse than some man who has committed no so-called crime at all. Many criminals, even those guilty of homicide, are as white as snow compared with others who have never transgressed the literal wording of a penal statute. "We used to have So and So for our lawyer," remarked the president of a large street railway corporation. "He was always telling us what we _couldn't_ do. Now we have Blank, and pay him one hundred thousand dollars a year to tell us how we _can_ do the same things." The thief who can have the advice of able counsel "how to do it" need never go to jail. Many of the things most abhorrent to our sense of right do not come within the scope of the criminal law. _Omissions_, no matter how reprehensible, are usually not regarded as criminal, because in most cases there is no technical legal duty to perform the act omitted. Thus, not to remove your neighbor's baby from the railroad track in front of an on-rushing train, although it would cause you very little trouble to do so, is no crime, even if the child's life be lost as a result of your neglect. You can let your mother-in-law choke to death without sending for a doctor, or permit a ruffian half your size to kill an old and helpless man, or allow your neighbor's house to burn down, he and his family peacefully sleeping inside it, while you play on the pianola and refuse to ring up the fire department, and never have to suffer for it--in this world. Passing from felonies--_mala in se_--to misdemeanors--generally only _mala prohibita_--almost anything becomes a crime, depending upon the arbitrary act of the legislature. It is a crime in New York State to run a horse race within a mile of where a court is sitting; to advertise as a divorce lawyer; to go fishing or "play" on the first day of the week; to set off fire-works or make a "disbursing noise"[1] at a military funeral in a city on Sunday; to arrest or attach a corpse for payment of debt; to keep a "slot machine"; to do business under any name not actually your own full name without filing a certificate with the county clerk (as, for example, if, being a tailor, you call your shop "The P.D.Q. Tailoring Establishment"); to ride in a long-distance bicycle race more than twelve hours out of twenty-four; to shoe horses without complying with certain articles of the Labor Law; to fail to supply seats for female employés in a mercantile establishment; to steal a ride in a freight car, or to board such a car or train while in motion; to set fire negligently to one's own woods, by means of which the property of another is endangered; to run a ferry without authority, or, having contracted to run one, to fail to do so; to neglect to post ferry rates (under certain conditions) in English; to induce the employé of a railroad company to leave its service because it requires him to wear a uniform; to wear a railroad uniform without authority; to fish with a net in any part of the Hudson River (except where permitted by statute); to secretly loiter about a building with intent to overhear discourse therein, and to repeat the same to vex others (eavesdropping); to sell skimmed milk without a label; to plant oysters (if you are a non-resident) inside the State without the consent of the owner of the water; to maintain an insane asylum without a license; to enter an agricultural fair without paying the entrance fee; to assemble with two or more other persons "disguised by having their faces painted, discolored, colored or concealed," save at a fancy-dress ball for which permission has been duly obtained from the police; or to wear the badge of the "Patrons of Husbandry," or of certain other orders without authority. These illustrations are selected at random from the New York Penal Code. Where every business, profession, and sport is hedged around by such _chevaux-de-frise_ of criminal statutes, he must be an extraordinarily careful as well as an exceptionally well-informed citizen who avoids sooner or later crossing the dead-line. It is to be deprecated that our law-makers can devise no other way of regulating our existences save by threatening us with the shaved head and striped shirt. The actual effect of such a multitude of statutes making anything and everything crimes, punishable by imprisonment, instead of increasing our respect for law, decreases it, unless they are intended to be and actually are enforced. Acts _mala in se_ are lost in the shuffle among the acts _mala prohibita_, and we have to become students to avoid becoming criminals. Year by year the legislature goes calmly on _creating_ all sorts of new crimes, while failing to amplify or give effect to the various statutes governing existing offences which to a far greater degree are a menace to the community. For example, it is not a crime in New York State to procure money by false pretences provided the person defrauded parts with his money for an illegal purpose.[2] In the McCord[3] case, in which the Court of Appeals established this extraordinary doctrine, the defendant had falsely pretended to the complainant, a man named Miller, that he was a police officer and held a warrant for his arrest. By these means he had induced Miller to give him a gold watch and a diamond ring as the price of his liberty. The conviction in this case was reversed on the ground that Miller parted with his property for an unlawful purpose; but there was a very strong dissenting opinion from Mr. Justice Peckham, now a member of the bench of the Supreme Court of the United States. In a second case, that of Livingston,[4] the complainant had been defrauded out of five hundred dollars by means of the "green-goods" game; but this conviction was reversed by the Appellate Division of the Second Department on the authority of the McCord case. The opinion was written by Mr. Justice Cullen, now Chief Judge of the New York Court of Appeals, who says in conclusion: "We very much regret being compelled to reverse this conviction. Even if the prosecutor intended to deal in counterfeit money, it is no reason why the appellant should go unwhipped of justice. _We venture to suggest that it might be well for the legislature to alter the rule laid down in McCord vs. People._" Well might the judges regret being compelled to set a rogue at liberty simply because he had been ingenious enough to invent a fraud which involved the additional turpitude of seducing another into a criminal conspiracy. Livingston was turned loose upon the community, in spite of the fact that he had swindled a man out of five hundred dollars, because he had incidentally led the latter to believe that in return he was to receive counterfeit money or "green goods" which might be put into circulation. Yet, because, some years before, the judges of the Court of Appeals had, in the McCord matter, adopted the rule followed in civil cases, to wit, that as the complaining witness was himself in fault and did not come into court with clean hands he could have no standing before them, the Appellate Division in the next case felt obliged to follow them and to rule tantamount to saying that two wrongs could make a right and two knaves one honest man. It may seem a trifle unfair to put it in just this way, but when one realizes the iniquity of such a rule as applied to criminal cases, it is hard to speak softly. Thus the broad and general doctrine seemed to be established that so long as a thief could induce his victim to believe that it was to his advantage to enter into a dishonest transaction, he might defraud him to any extent in his power. Immediately there sprang into being hordes of swindlers, who, aided by adroit shyster lawyers, invented all sorts of schemes which involved some sort of dishonesty upon the part of the person to be defrauded. The "wire-tappers," of whom "Larry" Summerfield was the Napoleon, the "gold-brick" and "green-goods" men, and the "sick engineers" flocked to New York, which, under the unwitting protection of the Court of Appeals, became a veritable Mecca for persons of their ilk. The "wire-tapping" game consisted in inducing the victim to put up money for the purpose of betting upon a "sure thing," knowledge of which the thief pretended to have secured by "tapping" a Western Union wire of advance news of the races. He usually had a "lay out" which included telegraph instruments connected with a dry battery in an adjoining closet, and would merrily steal the supposed news off an imaginary wire and then send his dupe to play his money upon the "winner" in a pretended pool-room which in reality was nothing but a den of thieves, who instantly absconded with the money. In this way one John Felix was defrauded out of fifty thousand dollars on a single occasion.[5] Now the simplest legislation could instantly remedy this evil and put all the "wire-tappers" and similar swindlers out of business, yet a bill framed and introduced in accordance with the suggestion of the highest court in the State was defeated. Instead the legislature passes scores of entirely innocuous and respectable acts like the following, which became a law in 1890: An Act for the Prevention of Blindness Section 1. Should ... _nurse having charge of an infant ... notice_ that one or both eyes of such infant are inflamed or reddened at any time within two weeks after its birth it shall be the duty of such nurse ... to report the fact in writing within six hours to the health officer or some legally qualified practitioner of medicine ... Section 2. Any failure to comply with the provisions of this act shall be punished by a fine not to exceed one hundred dollars, _or imprisonment not to exceed six months_, _or both_. The criminal law which had its origin when violence was rife is admirably adapted to the prevention, prosecuting and punishment of crude crimes, such as arson, rape, robbery, burglary, mayhem, assault, homicide, and "common-law" larceny,--theft accompanied by a trespass. In old times everything was against the man charged with crime--at least that was the attitude of the court and jury. "Aha!" exclaims the judge as the evidence goes in. "You thought you were stealing only a horse! But you stole a _halter as well_!" And the spectators are convulsed with merriment. We take honest pride in the protection which our law affords to the indicted prisoner. It is the natural expression of our disapproval of a system which at the time of our severance from England ignored the rights of the individual for those of the community. We touched the lips of the defendant and gave him the right to speak in his own behalf. We gave him an unlimited right of appeal on any imaginable technicality.[6] But while we have been making it harder and harder to convict our common criminals, we have to a very great extent failed to recognize the fact that all sorts of new and ingenious crimes have come into existence with which the law in its present state is utterly unable to cope. The evolution of the modern corporation has made possible larcenies to the punishment of which the law is entirely inadequate. "Acts for the prevention of blindness" are perhaps desirable, but how about a few statutes to prevent the officers of insurance companies from arbitrarily diverting the funds of that vague host commonly alluded to as "widows and orphans"? The careless nurse is a criminal and may be confined in a penitentiary; while perhaps a man who may be guilty of a great iniquity and known to be so drives nonchalantly off in his coach and four. What is crime? We may well ask the question, only eventually to be confronted by that illuminating definition with which begins the Penal Code--"A crime is an act or omission forbidden by law and punishable upon conviction by ... penal discipline." Let us put on our glasses and find out what these acts or omissions are. When we have done that we may begin to look around for the criminals. But it will be of comparatively little assistance in finding the _sinners_. So-called criminologists delight in measuring the width of the skulls between the eyes, the height of the foreheads, the length of the ears, and the angle of the noses of persons convicted of certain kinds of crimes, and prepare for the edification of the simple-minded public tables demonstrating that the burglar has this kind of a head, the pickpocket that sort of an ear, and the swindler such and such a variety of visage. Exhaustive treatises upon crime and criminals lay down general principles supposed to assist in determining the kind of crime for which any particular unfortunate may have a predilection. One variety of criminal looks this way and another looks that way. One has blue eyes, the other brown eyes.[7] Some look up, others look down. My friend, if you examine into the question, you will probably discover that the clerk who sells you your glass of soda water at the corner drug store will qualify for some one of these classes, so will your host at dinner this evening, so, very likely, will the family doctor or the pastor of your church. The writer is informed that there has recently been produced an elaborate work on political criminals in which an attempt is made to set forth the telltale characteristics of such. It is explained that the tendency to commit such crimes may be inherited. You are about as likely to inherit an inclination to commit a political crime as you are to derive from a maiden aunt a tendency to violate a speed ordinance or make a "disbursing" noise. Let some one codify all the sins and meannesses of mankind, let the legislatures make them crimes and affix appropriate penalties, then those of us who still remain outside the bars may with more propriety indulge ourselves in reflections at the expense of those who are not. FOOTNOTES: [Footnote 1: New York Penal Code, Section 276.] [Footnote 2: No longer the law of New York. After this book was published the Court of Appeals reversed the conviction of Tracy for his $50,000 fraud upon Felix by means of the "wire-tapping" game and affirmed as law the doctrine of People _vs._ McCord. The author takes satisfaction in recording that the Legislature thereupon awoke to its duties and amended the penal code in such a fashion as to render such offences criminal.] [Footnote 3: 46 New York 470.] [Footnote 4: 47 App. Div. 283.] [Footnote 5: The operations of these swindlers recently became so notorious that the District Attorney of New York County determined to prosecute the perpetrators of the Felix swindle, in spite of the fact that the offence appeared to come within the language of the Court of Appeals in the McCord and Livingston cases. Accordingly Christopher Tracy, alias Charles Tompkins, alias Topping, etc., etc., was indicted (on the theory of "trick and device") for the "common-law" larceny of Felix's fifty thousand dollars. The trial came on before Judge Warren W. Foster in Part III of the General Sessions on February 27, 1906. A special panel quickly supplied a jury, which, after hearing the evidence, returned a verdict of guilty in short order. It now remains for the judges of the Court of Appeals to decide whether they will extend the doctrine of the McCord and Livingston cases to a fraud of this character, whether they will limit the doctrine strictly to cases of precisely similar facts, or whether they will frankly refuse to be bound by any such absurd and iniquitous theory and consign the McCord case to the dust-heap of discarded and mistaken doctrines, where it rightfully belongs. Their action will determine whether the perpetrators of the most ingenious, elaborate and successful bunco game in the history of New York County shall be punished for their offence or instead be turned loose to prey at will upon the community at large. (See "The Last of the Wire-Tappers" in the _American Magazine_ for June, 1906; also incorporated in the author's "True Stories of Crime," pp. 103-121, published by Charles Scribner's Sons, 1908.)] [Footnote 6: Cf. in general, references given _infra_, p. 339.] [Footnote 7: The following appeared in the New York _Globe_ for April 25, 1905: "Criminal eyes--It is well known," says Dr. Beddoe, F.R.S., "that brown eyes and dark hair are particularly common among the criminal classes. An American observer calls the brown the criminal eye, etc., etc."] CHAPTER II WHO ARE THE REAL CRIMINALS? Some reader of the preceding chapter may perhaps remark, "This is all very well so far as it goes. It doubtless is entirely true from a purely technical point of view. But that is only one side of the matter. How about the _real_ criminals?" This is neither an unexpected nor an uninvited criticism. Who _are_ the "_real_" criminals? Charles Dudley Warner says: "Speaking technically, we put in that [the criminal] class those whose sole occupation is crime, who live upon it as a profession and who have no other permanent industry. They prey upon society. They are by their acts at war upon it and are outlaws." Now the class of professional criminals to which Mr. Warner refers as contrasted with the great mass of criminal defendants as a whole is, in point of fact, relatively so small, and so easily recognized and handled, that it plays but an inconspicuous part in the administration of criminal justice. The criminals who conform accurately to childhood's tradition are comparatively few in number. The masked highwayman, the safe-cracker and even the armed house burglar have, with a few exceptions, long since withdrawn from the actual pursuit of their romantic professions and exist practically only in the eagerly devoured pages of Sherlock Holmes and the "memoirs of great detectives." New and almost more picturesque figures have taken their places,--the polite and elegant swindler, the out-at-the-elbows but confidence-inspiring promoter of assetless corporations, the dealer in worthless securities, and the forger who drives in his own carriage to the bank he intends to defraud. In some cases the individuals are the same, the safe-cracker merely having doffed his mask in favor of the silk hat of Nassau Street. Of yore he stole valuable securities which he was compelled to dispose of at a tremendous discount; now he sells you worthless stocks and bonds at a slight premium. Mr. J. Holt Schorling, writing in _The Contemporary Review_ for June, 1902, points out that while all crimes other than fraud decreased materially in England from 1885 to 1899, the crime of fraud itself materially increased during the same period.[8] The subject is a tempting one, but it is not essential to our thesis. The devil is not dead; he has merely changed his clothes. Criminal activity has not subsided; it has instead sought new ways to meet modern conditions, and so favorable are these that while polite crime may be said still to be in its infancy, it is nevertheless thriving lustily. While the degenerate criminal class is the subject of much elaborate and minute analysis by our continental neighbors, its extent is constantly exaggerated and its relation to the other criminal classes not fully appreciated. To read some supposedly scientific works one would imagine that every court of criminal justice was or should be nothing but a sort of clinic. To these learned authors, civilization, it is true, owes a debt for their demonstration that some crime is due to insanity and should be prevented, and, where possible, cured in much the same manner. But they have created an impression that practically all crime is the result of abnormality. Every great truth brings in its train a few falsehoods,--every great reform a few abuses. The first penological movement was in the direction of prison reform. While perhaps the psychological problem was not entirely overlooked, it was completely subordinated to the physical. It is a noble thing that the convict should have a warm cell in winter and a cool one in summer, with electric light and running water, wholesome and nutritious food, books, bathrooms, hospitals, chapels, concerts, ball games and chaplains. "But it must be noted that along with this movement has grown up a sickly sentimentality about criminals which has gone altogether too far, and which, under the guise of humanity and philanthropy, confounds all moral distinctions." To a large number of well-meaning people every convict is a person to whom the State has done an injury. Then came the study of degeneracy, with the cranium of every criminal as a subject of investigation. In 1881 or thereabouts Professor Benedickt published his conclusion that "the brains of criminals exhibit a deviation from the anthropological variety of their species, at least among the cultured races." It was a commendable thing to point out the relation of insanity to crime. It is an undeniable truth that there are insane people who are predisposed to crime just as there are those who are predisposed to dance. The vicious criminal class contains many who are actually or incipiently insane, and it numbers a great many more who are physically and mentally normal, who yet by reason of their education and environment are not much to be blamed for doing wrong. But it is far from true that a majority of the "real" criminals are mentally defective. Crime and insanity are no more closely related than sin and insanity. Certain criminals are also perverts. But they would be criminals even if they were not perverts. The fact that a man who takes drugs is also a criminal does not prove that he is a criminal because he takes drugs. We know many drug-takers who are otherwise highly respectable. Go to the General Sessions and watch the various defendants who are brought into court and you will discover little more degeneracy or abnormality than you would find on the corner of Twenty-third Street and Fifth Avenue among the same number of unaccused citizens. The point which the writer desires to make is that, leaving out the accidental and experimental criminals, there is a much closer relation between all law-breakers than the public and our legislators seem to suppose. The man who adulterates his milk to make a little extra money is in the same class with the financial swindler. One waters his milk, the other his stock. The same underhanded desire to better one's self at the expense of one's neighbor is the moving cause in each case. The forger belongs to the class whose heads the criminologists delight to measure, but they would not measure your milkman's. The man who steals your purse is a felon and a subject of scientific investigation and discussion; the man who forges a trade-mark commits only a misdemeanor and excites no psychological interest. But they are criminals of exactly the same type. The "crime-is-a-disease" theory has been worked entirely too hard. It is a penologic generality which does not need any truckling to popular sentimentality to demonstrate its truth. But there are as many sorts of this "disease" as there are kinds of crime, and some varieties would be better described by other and less euphemistic names. Crime is no more a disease than sin, and the sinners deserve a good share of the sympathy that is at present wasted on the criminals. The poor fellow who has merely done wrong gets but scant courtesy, but once jerk him behind the bars and the women send him flowers. If crime is a disease, sin is also a disease, and we have all got a case of it. It is strange that there is not more "straight talk" on this subject. Every one of us has criminal propensities,--that is to say, in every one of us lurks the elemental and unlawful passions of sex and of acquirement. It is but a play on words to say that the man who yields to his inclinations to the extent of transgressing the criminal statutes is "diseased." Up to a certain point it is his own business, beyond it becomes ours, and he transgresses at his peril. The ordinary criminal usually is such because he "wants the money"; he either does not like to work or wants more money than he can earn honestly. He has no "irresistible impulse" to steal,--he steals because he thinks he can "get away with it." The so-called professional thief is usually one who has succeeded in so doing or who, having been convicted of larceny, finds he cannot live agreeably other than by thieving; but the man is no less a professional thief who systematically puts money in his pocket by dishonest and illegal methods in business. The fact that it is not, in the ordinary sense, his "sole occupation" does not affect the question at all. Indeed, it would be difficult for one whose business life was permeated by graft to refute the general allegation that his "sole occupation" was criminal. Granting this, your dishonest business man fulfils every requirement of Mr. Warner's definition, for he "preys upon society and is [secretly] at war upon it." He may not be an "outlaw," but he should be one under any enlightened code of criminal laws.[9] There is no practical distinction between a man who gets all of a poor living dishonestly and one who gets part of an exceedingly good living dishonestly. The thieving of the latter may be many times more profitable than that of the former. So long as both keep at it systematically there is little to choose between the thief who earns his livelihood by picking pockets and the grocer or the financier who swindles those who rely upon his representations. The man who steals a trade-mark, counterfeits a label, or adulterates food or drugs, who makes a fraudulent assignment of his property, who as a director of a corporation declares an unearned dividend for the purpose of selling the stock of himself and his associates at an inflated value, who publishes false statements and reports, makes illegal loans, or who is guilty of any of the thousand and one dishonest practices which are being uncovered every day in the management of life insurance, banking, trust, and railroad companies, is precisely as "real" a criminal as one who lurks in an alley and steals from a passing wagon. _Each is guilty of a deliberate violation of law implying conscious wrong_, and each commits it for essentially the same reason. Yet at the present time the law itself recognizes a fictitious distinction between these crimes and those of a more elementary sort. The adulteration of foods, the theft of trade-marks, stock-jobbing, corporation frauds, and fraudulent assignments are as a rule only misdemeanors. The trouble is that we have not yet adjusted ourselves to the idea that the criminal who wears a clean collar is as dangerous as one who does not. Of course, in point of fact he is a great deal worse, for he has not the excuse of having a gnawing at his vitals. If a rascally merchant makes a fraudulent conveyance of his property and then "fails," although he may have secreted goods worth fifty thousand dollars, the punishment of himself and his confederate is limited to a year in the penitentiary and a thousand dollars fine, while if a bank cashier should steal an equivalent amount and turn it over to an accomplice for safe keeping he could receive ten years in State's prison. Even in this last case the receiver's punishment could not exceed _five_ years. Thus Robert A. Ammon, who was the sole person to profit by the notorious "Franklyn Syndicate,"[10] when convicted of receiving the proceeds of the fraud, could be sentenced to only five years in Sing Sing, while his dupe, Miller, who sat at the desk and received the money, although he acted throughout by the other's advice and counsel, in fact did receive a sentence of ten years for practically the same offence. However inequitable this may seem, what inducements are offered in the field of fraudulent commercial activity when a similar kind of theft is punishable by only a year in the penitentiary? One can hardly blame such picturesque swindlers as "Larry" Summerfield, who saw gigantic financial and commercial frauds being perpetrated on every side, while the thieves who had enriched themselves at the expense of a gullible public went scot-free, for wanting to participate in the feast. Almost every day sees some new corporation brought into being, the only object of which is to enable its organizers to foist its worthless stock among poorly paid clerks, stenographers, trained nurses, elevator men and hard-working mechanics. The stock is disposed of and the "corporation" (usually a copper or gold mining enterprise) is never heard of again. Apparently if you do the thing correctly there can be no "come back." Accordingly Summerfield and his gang of "sick engineers" hawked through the town nearly eighty thousand dollars' worth of the securities of the Horse Shoe Copper Mining Company, which owned a hole in the ground in Arizona. It was all done under legal advice and was undoubtedly believed to be within the letter of the law. But there were a few unnecessary falsehoods, a few slips in the schedule, a few complainants who would not be placated, and "Larry" found himself in the toils. He was convicted of grand larceny in the first degree, secured a certificate of reasonable doubt and gave bail in a very large amount. Within a short time he was re-arrested for working the same game upon an unsuspecting southerner. This time his bail was increased to thirty thousand dollars. It was not long after the investigations into the Ship-Building Trust scandal and New York had been edified by seeing the inside workings of some very high finance. After his temporary release Summerfield strolled over to Pontin's restaurant for lunch, where he sat down at a table adjoining one occupied by the assistant district attorney who had prosecuted and convicted him. "How are you, Mr. ----?" inquired "Larry" with his usual urbanity. "How are things?" "So so," replied the prosecutor, amused at the nonchalance of a man who might reasonably expect to be in Sing Sing within three months. "How's business?" "Oh, pretty good," returned Larry. "You know there is a sucker born every minute." "I should think after your conviction you would have had sense enough to keep out of swindling for a while," continued the assistant. "Swindling!" exclaimed Summerfield. "Swindling nothin'! My lawyer says I didn't commit any crime. Didn't the Supreme Court say there was a reasonable doubt in my case? Well, I'm just giving myself the benefit of it,--that's all. I'm entitled to it. How about those Ship-Building fellers?" The "Ship-Building fellers" have never been convicted of any wrong-doing. Perhaps they committed no crime. Summerfield has three years more to serve in Sing Sing.[11] In this connection the reader will recall the attitude of the inhabitants of Lilliput as chronicled by Gulliver.--"They look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege that care and vigilance, with a very common understanding, may preserve a man's goods from theft, but honesty has no _defence_ against superior cunning; ... the honest dealer is always undone, and the knave gets the advantage. I remember when I was once interceding with the king for a criminal who had wronged his master for a great sum of money, which he had received by order, and ran away with; and happening to tell his Majesty by way of extenuation that it was only a breach of trust, the Emperor thought it monstrous in me to offer as a defence the greatest aggravation of the crime; and truly I had little to say in return, further than the common answer, that different nations had different customs; for, I confess, I was heartily ashamed." Any definition of the criminal class which limits it to those who "make their living" by crime is inadequate and begs the question entirely. There is no choice between the grafter and the "professional" thief, the boodler and the bank robber. They are all "real" criminals. One is as "diseased" and "degenerate" as the other. Every reversed conviction of a "grafter" lowers a peg the popular respect for law. The clerk in the corner grocery in Dakota feels the wireless influence of the boodler in St. Louis, and the "successful" failure in New York sets some fellow thinking in San Francisco. The so-called degenerate and professional criminals constitute a very small fraction of the law-breakers and it is not from either class that we have most to fear. Our real danger lies in those classes of the population who have no regard for law, if not an actual contempt for it, and who may become criminals, or at least criminal, whenever any satisfactory reason, coupled with adequate opportunity, presents itself. From this class spring the experimental criminals of every sort, who in time become "professionals," and from it the embezzler, the stock jobber, the forger and business thief. From it as well are largely recruited those who commit the crimes of violence which, however undeservedly, give the United States such an unenviable place upon the tables of the statisticians. From it spring the "fellow who does not care" or who "will take a chance," the dynamiter, the man who is willing to "turn a trick" at a price, and all those who need the strong arm of the law to restrain them from yielding to their entirely normal evil inclinations. The man who deliberately violates the law by doing that which he knows to be wrong is a real criminal, whether he be a house-breaker, an adulterator of drugs, the receiver of a fraudulent assignment or a trade-mark thief, an insurance "grafter," a bribe giver, or a butcher who charges the cook's commission against next Sunday's delivery. The writer fails to see the slightest valid distinction between them and believes it should be made possible to punish them all with equal severity. There is no reason why one should be a felon, another guilty of only a misdemeanor, while still another is guilty of nothing at all. The cause of crime is our general and widespread lack of respect for law, and this in turn is largely due to the unpunished, and often unpunishable, dishonesty which seems to permeate many phases of commercial activity. Diogenes's job is still vacant. FOOTNOTES: [Footnote 8: Including under the general term "fraud," obtaining money by false pretences, thefts by solicitors, bankers, agents, directors, trustees, etc. ("generally recorded under the euphony 'misappropriation'"), falsifying accounts, etc., Mr. Schorling found that taking the number of these two divisions of crime between 1885-1889 as 100% there had been the following relative decrease and increase between them: _All Crimes Except Fraud_ _Frauds_ 1885-1889 100 % | 1885-1889 100 % 1890-1894 96.2% | 1890-1894 110.1% 1895-1899 90.4% | 1895-1899 138.3% A similar table constructed for the United States during the last fifteen years would be instructive but perhaps unduly depressing. Recent financial and other disclosures would probably send up the mercury of the "fraud" thermometer until it burst.] [Footnote 9: Cf. "Unpunished Commercial Crime" in "Moral Overstrain," by G.W. Alger. Houghton, Mifflin & Co., 1906.] [Footnote 10: See "True Stories of Crime," referred to _supra_, p. 15.] [Footnote 11: Since the publication of this book Summerfield has been discharged from prison, having earned his parole by exemplary conduct. He has gone West to lead a new and better life, and there is reason to believe that he will succeed in doing so.] CHAPTER III THE ARREST To most of us modest folk a police officer looks not an inch less than eight feet in height,--and his blue coat and brass buttons typify the majesty and inflexibility of the law. At his most trivial gesture the coachmen rein in their curvetting steeds upon the crowded thoroughfare, and at his lightest word the gaping pedestrian obediently "moves on." When necessity compels we address him deprecatingly and, as it were, with hat in hand, and if he deign to listen to us, and still more if he condescend to reply, we thrill with pride. We experience a certain surprise that he has seen fit to give heed to us at all and has not, instead, ordered us roughly about our business with threatening mien and uplifted club. That he has rendered us assistance fills us with humble gratitude. One feels like Dr. Holmes, "How kind it was of him To mind a slender man like me! He of the mighty limb!" It rarely occurs to us that these stomachic Titans are in fact our servants and that they have no authority save that which they have received from ourselves,--that, horrible thought! they wear our livery as assuredly as does Jeames or Wilkins. Why do these big men patrol the streets and order us about? Simply because in these busy days the ordinary citizen has neither time nor inclination to attend to his own criminal business, and because it is better upon the whole for the State to attend to it for him. Eight hundred years ago the punishment of crime was a matter of private vengeance gradually evolving itself into the criminal procedure of modern English law. The injured citizen took his appeal "to the county" and fought it out with his wrong-doer either personally or by proxy. The idea was, originally, that the man who had been injured ought to have his revenge, and criminal justice in England even to-day savors for this reason somewhat of private litigation. Of course, nowadays, crime is punished on the theory that the public has been injured; and that not only does the safety of the community require that a repetition of the same crime by the same offender should be prevented, but also that an example should be made of the evil-doer as a lesson to others. Be this as it may, vengeance and not public spirit is still the moving cause of ninety per cent of all prosecutions for crime. Just as the right to apprehend a wrong-door was an inherent right at the common law of every free-born English subject, it is our inherent right to-day, modified or extended by the statute law of the several States, and, save where a court of justice has issued its warrant and commands its agents to apprehend the party named therein, one person has substantially the same right as another to arrest a criminal, even if that other be an officer of the law. The policeman has no greater rights in the matter of preventing crime or arresting evil-doers than the citizen. He is merely hired by the citizen to do it for him. The only difference is that it is the _duty_ of the officer by virtue of his position to make arrests, just as it is that of the fireman to extinguish fires. Yet it is undoubtedly the fact that nine-tenths of us really believe that the policeman's blue coat, helmet, and club invest him with some sacred and peculiar authority of his own. If every citizen recognized the fallacy of this idea, and if some elementary instruction in such matters were given in the public schools, even at the sacrifice of clay modelling and decorative art, it might add much to the spirit of independence and to the practical efficiency of the coming generation. We are slaves to the magic of the word "police." We imagine that without a representative of the law we can do nothing. Of course we know in general that we may defend the persons and protect the property of ourselves and others by the exercise of reasonable force. Beyond this rather vague principle we are not prepared to go. Where the situation offers no particular inconvenience we are ready to do our part, but if anything disagreeable is going on we prefer to be excused. We are out of the habit of doing the simplest police duty. Most of us would have enough public spirit to summon an officer if a felony were being committed before our very eyes, provided we could do so without making ourselves ridiculous, but few of us, the writer fancies, would join the hue and cry after a pickpocket unless ours happened to be the pocket he had picked. We leave that to those whose natural bellicosity is greater and who do not object to being undignified. It is nevertheless true, however unpleasant the thought may be, that at any moment we may find ourselves in the centre of a whirlpool of events where individual action on our part will be necessary unless we are willing to allow some vicious and cruel violation of the law to go unpunished. Such exigencies may run all the way from the malicious beating of an overloaded horse to the garrotting of a feeble old man. Our efficiency on such occasions might be represented by a fraction, of which our physical capacity would be the numerator and our disinclination the denominator, but obviously, to make the formula complete, this would have to be multiplied by another representing our knowledge of our rights. Suppose for example that Mr. Ordinary Citizen on a nocturnal ramble should, at about three o'clock in the morning, observe some ill-favored person with a heavy bag in his hand, furtively making his exit from the area door of a stylish mansion in the residential district. What should he do? What would _you_ do? Without discussing this embarrassing question, does the reader know what he would have a right to do? The chances are largely in favor of his being obliged to answer this question in the negative. Indeed, our indifference to the unexpected is so great that we are generally mute and helpless in the face of any unusual situation where anybody's rights are concerned. We hesitate to act without the advice of counsel, and in the meantime the burglar has made his escape! In the State of New York and generally in this country, any person, whether he be an officer of the law or not, may make an arrest, without a warrant, for any crime, of any grade, actually committed in his presence. It makes no difference whether the offence be that of spitting in a street-car or murder in the first degree, the offender may be haled before a magistrate by any one who has seen him commit it. But the statutes governing the right of arrest, while extensive enough to safeguard the public interest, are carefully limited to prevent arbitrary interference with the liberty of innocent persons. The law, therefore, makes it a positive condition that before any one, whether he be citizen or officer, may arrest another for a felony _not_ committed in his presence the felony must _in fact have been committed_. Thus the right to apprehend a suspected wrong-doer is invoked at the peril of him who seeks to exercise it. If no felony has been committed the arrest is illegal. In one respect only does the law recognize any difference between the private citizen and the public officer paid to keep the peace,--if a felony has in fact been committed, the officer may arrest any one who he has _reasonable ground to believe_ is the guilty party, while a citizen may arrest only the person who is actually guilty. Thus the citizen must guarantee not only the commission of the crime but the identity of the criminal, while the officer, so long as the law has actually been violated, may take a chance as to the identity of the perpetrator of the offence. Now, the police invariably interpret the law to mean that they may arrest anybody who they _have reasonable cause for believing has committed a felony_,--but of course the statute gives them no such power.[12] The _felony must have been committed_; the "reasonable cause" refers only to the _identity_ of the criminal. This, however, does not worry the average policeman at all. He sees "Mr. O.C.'s" burglar coming out of the area with his bag, promptly pounces upon him and hales him off to the precinct house in spite of the burglar's protests and expletives. If the burglar prove refractory he is clubbed into submission, or if he attempt to run he may be shot in the leg. Now suppose that on reaching the police station the burglar turns out not to be a burglar at all but the family doctor? Or a late caller upon the cook? Or a gentleman who has mistaken some one's else area for his own? Of course no felony has been committed. The policeman had no right to make the arrest. Assuming that the house _had_ been burglarized, the officer beyond a doubt had reasonable cause for a hastily formed opinion that the man in the area was the guilty party and had a right to make the arrest, but in law he makes this assumption at his peril. If he is wrong the victim has a good cause of action against the policeman for false arrest. But the execution following his civil judgment against the latter will probably be returned _nulla bona_ by the sheriff, and he will have to pay for his own medical treatment and legal advice. Now let us see in what position is O.C., who is not a peace officer, when he discovers the suspicious figure in the area. He may lawfully make an arrest, although he has not seen the crime committed, "when the person arrested has committed a felony." In other words, if it turns out that no crime has occurred, or that if one has in fact been perpetrated he has got hold of the wrong man, he will have to patch up the matter and very likely his own head as best he can. We will assume O.C. to be a public-spirited citizen and that he forthwith lays hands on his burglar and reduces him to subjection. Having done so he rings the front door bell and rouses the owner of the house, who in turn discovers that the mansion _has_ been burglarized. They then investigate the prisoner and find that he is a commercial traveller in an advanced state of intoxication who has rambled into that particular area by accident. O.C. has been guilty of an illegal arrest. Even should it prove that the intruder was in fact a burglar, but not the _right_ burglar, the arrest would still have been without authority.[13] To carry the illustration a little further let us assume that in each case a burglary has been committed and that the prisoner is the guilty party. What can the officer do, and what can "O.C." do, if his quarry attempt to escape? Roughly speaking, a person lawfully engaged in arresting another for a felony or in preventing the escape of such an one lawfully arrested, may use all the force necessary for the purpose, even to taking the life of the prisoner.[14] It is by virtue of this salutary provision of law that the unscrupulous policeman gets "square" with his enemies of the under world. When the officer clubs the "drunk" on the corner, it is on the pretext that the latter is "resisting" arrest. It is practically an impossibility to prove that it was not justifiable unless there be eye-witnesses to what has occurred, and an officer may safely be guilty of a good deal of physical brutality so long as he brings his victim to the station house under actual arrest for some alleged offence. It is only when the victim of such an assault is not arrested that the officer finds himself in an awkward situation. He must then explain why he clubbed the citizen unless the latter had committed some offence and was trying to resist arrest, and, if so, why he did not then conduct him to the station house. There is a story told of an old veteran upon the force who was heard to remark to a companion as they left court together after the acquittal of an ex-convict on the charge of assaulting the officer: "Begorra, Tom, 'twon't be long before I'll be afther arrestin' the cuss agin, and whin I do, _pray God that he resists arrest_!" It is said that in some of the southwestern states the personal right to make an arrest at times resulted, practically, in the privilege of shooting cattle thieves upon sight. The foreman would send out Jack to "look for" cattle thieves. Jack would lie all day in a gully and when Sonora Slim hove in sight, perhaps on an entirely lawful errand, would "let him have it." Then he would ride leisurely over, abstract Sonora's "gun," discharge it a couple of times and throw it carelessly upon the ground. Half an hour later he would appear at the ranch. "Sorry, Bill," he would report, "but I caught Sonora Slim driving off three of our two-year-olds. I headed him off and says, "'Look here, Sonora, you've got some of our heifers there.' "'Go to----!' says Sonora and pulls his gun. "'That's all right,' says I. 'You're under arrest!' "We swapped a few shots and I had to drop him to prevent his escape." "All right, Jack," the foreman would reply, "we'll ride over and tell the sheriff about it." "See here, sheriff," he would announce on their arrival, "Jack here arrested Sonora Slim stealin' our cattle, and the feller resisted arrest and Jack had to shoot him. Jack's here if you want him." "Yes, sheriff, here I am," Jack would say. The sheriff would rub his forehead and reply: "No, I don't want you. Sorry you had to kill him, but I'll have to have some evidence that what you say ain't true." It may be well to suggest that, while a thorough knowledge of our rights is always desirable, it by no means follows that it is wise to invoke them upon every occasion when we observe a technical violation of the law. Regrettable as it may seem, no police force, however large, could arrest all the violators of every law, and no system of courts could dispose of the multitude of offenders. We do the best we can and make an example of a few, hoping thus to persuade the others to be good. If every citizen undertook to exercise his right of arresting every individual whom he saw committing petty crime, the business of the community would come to a standstill and the magistrates' courts would be hopelessly congested with great hordes of prisoners, irate witnesses, and gratuitous policemen. The prisons would overflow and the magistrates would resign. Moreover, the enforcement of such a disused and unexpected technical right would lead to immense disorder and violence. The ignorant infractor of an obscure section of the Penal Code would rise in his wrath and in resisting arrest become guilty of assault in the second degree or of manslaughter. It is probably very much better that trivial offences should go unpunished than that public conveyances and thoroughfares should be made the scenes of violent altercations and obstructive volunteer police work. Having hired a certain class of persons to attend to this business for us, it is better to leave it to them when possible. We need the best police force that we can get, and this naturally depends upon the efficiency of the higher police officials who hold their offices by appointment. An active interest on the part of our citizens in the betterment of municipal conditions through the purification of politics is probably more to be desired than any general attempt to participate in the ordinary duties of "the man on the beat." FOOTNOTES: [Footnote 12: An attempt has apparently been made by the legislature of New York State to enlarge the powers of the police during the night-time by giving them authority to arrest "on reasonable suspicion of felony." The statute (Penal Code) reads as follows: "Section 179. _May arrest at night, on reasonable suspicion of felony._ "He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, _though it afterwards appear that a felony had been committed_, but that the person arrested did not commit it." This statute clearly stultifies itself. The writer is not aware of any judicial interpretation of its meaning up to the present time.] [Footnote 13: In People v. Hochstim (36 Misc., 562, 571) it is said that "in the matter of arresting without a warrant, whether for a misdemeanor or for a felony, a private citizen and a peace officer have the very same right and power under the law, namely: (1) Either may without a warrant arrest a person who commits any crime, whether misdemeanor or felony, in his view, and (2) either may without a warrant arrest any person who has in fact committed a felony although not in his view, but (3) neither may arrest any one without a warrant in the case of a felony unless the alleged felony has in fact been committed. If no felony has in fact been committed, then the arrest without a warrant is in every case unlawful and may be lawfully resisted. The law does not justify either an officer or a private citizen in arresting for a felony without a warrant on mere suspicion or information that a felony has been committed. If either act without a warrant on groundless suspicion or information on the question of whether a felony has in fact been committed, he acts at his peril. Nothing but the absolute fact that the felony has actually been committed will suffice to justify and protect the person making such an arrest, whether an officer or a private citizen. But if a felony has in fact been committed, the law does justify an officer, but not a private citizen, in arresting a person therefor without a warrant 'on reasonable cause for believing' (to quote the words of the statute) that such person is the one who committed it. In a word, an officer, the same as a private citizen, is not permitted to act on mere grounds of belief on the question of whether a felony has in fact been committed; nothing but the absolute fact that it has been committed will suffice; but an officer is permitted to act on reasonable cause for belief on the question of whether the person arrested is the person who committed it. All of this is plain statute law (Code of Criminal Procedure, secs. 177, 183)."] [Footnote 14: A distinction exists in this respect between misdemeanors and felonies. In the case of the former it is not lawful to kill a prisoner even if his escape cannot otherwise be prevented, and although there be a warrant for his apprehension. In the case of a felony the offender's life may be taken provided there is _absolute necessity_ for so doing to prevent his escape. Conraddy v. People, 5 Park 234.] CHAPTER IV THE POLICE COURT The procedure by which a law-breaker is convicted for his offence begins with his arrest and ends with the formal pronouncement of sentence against him after he has been declared guilty. Prior to his arrest he has been merely a criminal; after sentence (or, to be strictly technical, after the verdict against him) he becomes a convict; during the proceedings he is a "prisoner at the bar." Whatever has been the manner of his arrest he is in most instances taken at once before the nearest magistrate in order that the latter may inquire into the charge against him and determine whether upon the evidence there is reasonable cause to believe him guilty.[15] If the arrest takes place after four o'clock in the afternoon, or no magistrate happens to be holding court, the prisoner is locked up until the following morning.[16] If he be charged with a felony he must remain in confinement until the magistrate admits him to bail, for no police official can fix or receive bail in such cases: if, however, he has been arrested for the commission of a misdemeanor only, the sergeant on duty at "the desk" must fix the bail and give him a reasonable opportunity to procure it. If arrested while a police court is in session he is entitled to an immediate hearing, and to the services of counsel, for whom the magistrate must send, free of charge, through an officer. After the arrival of counsel or after waiting a reasonable time for his appearance, the magistrate may then proceed to examine into the case, and can only adjourn the hearing for forty-eight hours at a time for "good cause," unless at the request of the defendant himself. The subjects of the rights of apprehended persons is too extensive to be adequately treated in a few pages. The power which the magistrate may arbitrarily exercise of holding persons merely "suspected" of crime for further examination is very great. Where a prisoner is brought in under arrest as a fugitive from another State he is frequently "held" (without any formal charge being made against him) for several days at the mere telegraphic request of some police official in a distant city. The writ of habeas corpus may secure his release, but persons unjustly arrested on "suspicion" have little redress in ordinary cases, whether they are discharged immediately or held for long periods. While no technical authority exists for such detentions (the right of arrest being strictly limited as set forth in the last chapter) they are practically necessary to prevent the escape of dangerous criminals. "Arrest on suspicion" is a euphemistic description of a technically illegal proceeding, which is universally recognized as necessary for the protection of society.[17] The police court is the great clearing house of crime. Inasmuch as all persons arrested, whether innocent or guilty, are brought there together, they should naturally, so far as possible, be accorded the benefit of the doubt as to their guilt in the treatment which they receive. They are presumed to be innocent, and indeed many of them are, until a jury has declared to the contrary. However, the attitude generally taken towards a prisoner in a police court is that he is guilty and that it is useless for him to deny it, and he feels the discomfort and ignominy of his position far more at this state of the proceedings than he does later, when he is accorded more individual importance. As a rule he is brought into a crowded, stuffy court where a vociferous pair of shyster lawyers are shouting at each other's witnesses and the magistrate is with difficulty trying to preserve order. A great throng of complainants, defendants, witnesses, policemen, lawyers and idlers fill the room, and the prisoner instantly becomes the centre of vision for all eyes as the officer leads him up to the clerk's desk and makes his formal accusation. The altercation in front of the magistrate is suspended long enough for the latter to "commit" the defendant, who instantly finds himself locked in a narrow cell where he must remain until some friend or relation has had an opportunity to reach a lawyer, secure a bondsman, and compass his release. What he must naturally feel most is his own insignificance. He is merely one of a huge multitude of miserable people who are all in the same box. The hours until his lawyer arrives are very dark indeed,--particularly as he probably has no idea of what is going to happen to him in the meantime. If he be a poor man accused of drunkenness or disorderly conduct he may be, and frequently is, sent to the island before he has any adequate opportunity to notify his family, who may suffer an agony of anxiety before they discover what has become of him. The punishment of the minor offender for trifling breaches of the peace is not only swift, but is characterized by a certainty unknown to that which the law attaches to crimes of a higher order. The police court has sometimes been termed "The Poor Man's Court of Appeals." So far as this implies that five out of every seven defendants arraigned there are summarily disposed of and accept the decision or sentence of the presiding judge as final, and that the same number of aggrieved persons who seek justice there do the same, it is a correct description. No court has a more direct influence for good or evil, or for the creation of a respect or a disregard for law. For an overwhelming majority of our citizens, particularly those of foreign birth or extraction, it is the only court of justice in existence.[18] There may be higher courts or higher laws but they know them not. To them the magistrate is an autocrat. They are avenged or punished by virtue of his will alone, and as he is just or unjust, honest or corrupt, so do they come to regard American institutions as a whole. The officers of the precinct are his minions, only a little lower in majesty, and even more terrible and implacable. When it is considered that the magistrates in the first division of the City of New York (namely, the Boroughs of Manhattan and the Bronx) alone disposed of 138,047 cases in the year 1907, and that in 104,622 of these they exercised a summary jurisdiction over the liberty of the prisoner, with power in many instances to inflict severe punishment, it will be seen that the importance of these courts cannot be easily overrated. Including the defendants arraigned in the "Children's Court" and before certain judges of the Special Sessions sitting as magistrates, there were 149,494 persons arrested during 1907 in New York County alone. The summary jurisdiction of the police judge embraces all offences classed as "disorderly conduct," violations of so-called "corporation ordinances" (such as peddling without a license, etc.), infractions of the "Sabbath law," the disposition of persons alleged to be insane, vagrancy, and the offence (not recognized by any statute) of being a "suspicious person." Any person whom the magistrate finds guilty of any of these charges (except the last) he may fine or imprison. It is quite true that the defendant may, if convicted, take an appeal to the Court of General Sessions or test the jurisdiction of the magistrate by a writ of habeas corpus, but the grounds of appeal are few, and the victim rarely is aware or advised of his rights in this respect. Even were he fully informed, his purse would not usually permit of further proceedings, unless taken for him from charity by some outside party or organization. The fact that there were, out of this multitude of cases, but one hundred and fifty-nine appeals taken (of which only seventy-seven were successful) speaks for itself. Besides those charged with the offences over which the magistrate has final jurisdiction, before him come all persons arrested for crimes which are triable in higher courts.[19] These persons he must "hold for trial" (either for the court which tries misdemeanors or for the grand jury) or discharge. Should he have reasonable ground to believe that the accused has committed the crime alleged he is obliged by law to "hold" him, but if the judge sees fit to discharge the prisoner, the aggrieved person has no appeal and his only alternative is to try to persuade the district attorney in spite of the decision of the magistrate to take personal action either by laying the matter before the grand jury, or in cases of misdemeanors by filing an information in the Court of Special Sessions. He is usually unaware of this possibility and at all events it is a difficult proceeding, so that even in the case of crimes in which the magistrate has not a final jurisdiction, his action, so far as setting free the prisoner is concerned, is generally a conclusion of the matter. When a police judge unwarrantably discharges a prisoner accused of a felony the complainant rarely takes any further steps to get justice. The enormous power wielded by what people are accustomed to call "mere police judges" is obvious when we realize that one of them may send a woman to a reformatory for _three years_, and boys to similar institutions for the same period. Their jurisdiction is, however, strictly confined to certain classes of offences; and if, for example, the crime charged be "larceny" in any form they are compelled to hold the defendant for the action of a higher court even if he admit his guilt. Thus a vagrant who is caught begging can be sent away for six months, but if the same man steal an old rug from a door-step or a gunny-sack from a wagon he must willy nilly be sent to the Tombs to await a trial in Special Sessions. Now, in any case where he is going to plead guilty he would probably vastly prefer to have his case disposed of by the magistrate and have done with it. There would seem to be good reason for believing that coincident with other reforms in the magistrates' courts their original jurisdiction might well be extended to cases of petit larceny where the defendant admits the commission of the offence. A deal of time, money, and inconvenience to the prisoner might be saved. The present situation results in a tendency on the part of the judge to construe as many cases as he can of "petit larceny" into "disorderly conduct." Very often a trivial theft is accompanied by acts which make it perfectly proper for the magistrate to overlook the larceny for the disorder. Certainly it is better for the offender, where possible, to be classed as a "disorderly" rather than as a thief. In the latter case he may, with the stigma thus fastened upon him, go forth to a life of crime; in the first he would never be regarded as a criminal. This jurisdiction to punish any act or omission tending to create a breach of the peace offers a boundless opportunity for an arbitrary judge to arrogate to himself powers which an ignorant or helpless offender can hardly be expected successfully to defy. If illegally "committed" his only redress is a writ of habeas corpus, which probably is a phrase entirely unintelligible to him and which will cost more money to procure than he has ever had at any one time in his existence. The magistrates might also be given jurisdiction to impose punishment in all cases of "simple assault," and in certain cases even of assaults with weapons. There is no particular reason why, if the magistrate can send an old woman away for begging, or for being drunk of a Saturday night, he cannot be trusted to punish her properly for hitting her husband over the head with a hot-water kettle. Moreover, the magistrate before whom the damaged party hales the offender is able to see with his own eyes the actual extent of the injuries which have been inflicted, whereas, by the time the case is tried before the judge of the Sessions, Dame Nature has usually restored the victim's battered physiognomy to its pristine condition of refined elegance. No one could fail to profit by a day spent upon the police-court bench watching the judge exercise his many diverse yet not inconsistent duties, which variously include those of magistrate, lawyer, clergyman, almoner, arbitrator of domestic difficulties, and general adviser. He will begin his day's work, which, before it be concluded, will have required him to pass upon anywhere from fifty to eighty cases, by disposing of a long line of drunks and disorderlies of both sexes. Justice is plentifully tempered with mercy, however, and the unpleasant business is soon over. Next comes the disposition of unfinished business, which includes the continuance of trials not concluded on the preceding court day. These, of course, embrace every possible offence known to the law. The extraordinary number of petty burglaries is sure to attract the attention of the spectator.[20] Boy after boy is brought to the bar charged with breaking into a tobacco shop, or a small grocery, or a room used for the storage of merchandise, push-carts or fruit. At the very outside the value of the plunder cannot exceed a few dollars. One defendant, his head heavily bandaged, is half carried to the bar by a husky officer and charged with attempting to burglarize the shed adjoining Isadore Aselovitch's junk store. He is clearly much the worse for a severe clubbing. "Izzy," the complainant, exhibiting an iron bar several feet in length and weighing upwards of twenty pounds, proudly claims to have effected the arrest of the defendant by merely giving him "a little poke mit it." In response to the interrogatories of the magistrate, Izzy explains that he and another kept their junk in a certain rear room and from time to time noticed that various odd pieces of iron seemed to be missing. They thereupon concealed themselves behind a pile of old push-cart wheels and waited for the thief. After several hours of inactivity they finally heard a rattling among the iron and discovered the defendant apparently in the very act of stealing a crowbar. Being upon his hands and knees he was unable to offer any effectual resistance to their combined onslaught and barely succeeded in escaping with his life. His cries had brought an officer who had arrested him, upon Izzy's complaint, for attempted burglary. The defendant in turn had charged the two with felonious assault, alleging that he had a right to be in the store-room, inasmuch as he was accustomed to leave junk there himself. He further tearfully asserts that he is a rival of Izzy's in the push-cart business, which accounts for the extreme animosity of the latter. "It vas a lie, your honor, chuge," urges Izzy. "Dot man vas a purglar. He ain't got no push-cart. Gif him ten years, chuge!" The judge, who is wise in his generation, fines "the burglar" three dollars for disorderly conduct, to the intense disgust of Izzy. "Tree dollars!" he cries with fine scorn. "Tree dollars for a purglar! _I_ vould be a purglar _myself_ for _tree dollars_!" Very likely the next case will be that of a small merchant charged with obstructing the sidewalk with his boxes. He is let off with a warning or, if it be a second offence, with a small fine. Then a couple of boys will be brought in charged with "shooting craps," and on their heels a half-drunken driver who is accused by a little girl (having on an S.P.C.A. badge) of driving an overloaded horse. The crap boys are let go, but as the "cop" agrees with the little girl that the driver was abusing his horse the latter is "held" for Special Sessions. While these matters are being attended to a great uproar is heard and a large crowd forces its way into the court-room. Above the clamor the wails of a young Jewess make themselves distinctly audible. The judge has just ordered the drunken driver locked up and is all ready to take up the new case. The defendant, a slick, pale-faced young Hebrew, loudly proclaims his innocence and demands an immediate hearing. No time is lost, for the parents of the girl have procured a lawyer who at once causes a charge of robbery to be entered. The girl, hysterically weeping, tells her story. Up to a certain point it is lucid enough. She had been walking along the street when a nice-looking young "feller" had accosted her and inquired the way to the nearest pawnbroker's. While they were conversing pleasantly upon this subject a second young gentleman had joined them and asked the first to purchase a pair of beautiful diamond earrings which he exhibited. This the other regretfully had explained he could not do, since he had no money (being even then on the way to the pawnbroker's). The diamonds had glistened and sparkled in the sunlight. The girl had asked to look at them and while she was doing so the owner had suggested that perhaps she might like to purchase them herself, giving as part of the consideration her own modest little baubles. This tempting offer she says she refused, on the ground that she did not know the young gentleman. She then rapidly states that the two set upon her, struck her, and that she "knew no more," until on recovering her senses she found that her own earrings had disappeared and that those of the stranger were in her ears. "Hm!" says the magistrate; "and do you say that the defendant struck you?" "Shure, your honor," replies the young lady. "And that you fainted?" "Shure, your honor." "Did you fall?" inquires the judge sharply. "N--n--no," admits the complainant. "Defendant discharged," announces the magistrate. "Get out of here, all of you," orders the officer at the bridge. "Get along, now!" The explanation, as the reader already guesses, is simply that by a time-honored trick the girl has been persuaded by an oily-tongued trickster to exchange her own earrings for his worthless ones. This she has done quite voluntarily. She has then hurried home only to find that her newly acquired gems are paste. The family goes into a paroxysm of anger and lamentation. The nearest lawyer is consulted, who, of course, agrees to secure the return of the earrings. They pay him a five-dollar fee, the defendant is sought for and arrested, and in her eagerness to see him punished and to obtain her property the victim swears away her own case. Probably had she told the truth the defendant could have been "held" for grand larceny by false pretences. These proceedings may no sooner be concluded than perchance a giant negro is brought in charged with assault. A dozen officers bring him manacled to the bar, while a crowd of reporters follow and gather on each side, notebook in hand. It appears that the prisoner suddenly ran out of a saloon, drew a revolver and began an indiscriminate shooting. The "reserves" were called out and three policemen now lie dangerously wounded in the hospital. He is held for examination, pending a possible inquest by the coroner. Meantime a lank youth from New Jersey listens vacantly while an officer accuses him of abandoning a horse which has suddenly expired while harnessed to the defendant's truck wagon. He pays a fine and vanishes. Two young Irish-Americans, mutually damaged, are arraigned for "disorderly conduct." They, too, are fined, being already substantially punished--by each other. A man accused of "Sunday selling" follows a woman who tells a pitiful tale of how her husband has abandoned her and her five little ones. Later in the day the husband is found and ordered to pay her ten dollars per week. Two retail milk dealers charged with adulteration or "keeping a cow in an unhealthy place," a band of pickpockets who have been caught "working" a horse-car, a woman accused of "soliciting," and a bartender who has allowed a "slot machine" to be left upon the premises, give place to a vociferous store-keeper who has caused the arrest of a very stout man for the larceny of four pairs of trousers. He explains loudly that the defendant (who weighs at least 325 pounds) came into the store, asked to see some "pants," and while the clerk was not looking stuffed four pairs of these articles inside his waistband and made his escape. The complainant not only identifies the defendant with absolute certainty but goes so far as to state with equal positiveness that the accused now has on the very trousers into which he stuffed the stolen property. Four pairs identical in size and material with those alleged to have been purloined are produced and marked in evidence. The fat man indignantly denies having been in the store at all. The reporters are interested. "Gentlemen," says the judge, "I appoint you a committee to conduct the defendant to my private room for the purpose of determining whether or not you can stuff these articles of apparel inside his waistband." The reporters, followed more slowly by the perspiring defendant, make their way to a back room, from which they presently emerge to announce through their spokesman that it would be impossible to thrust any object, much less four pairs of trousers, inside the band of the defendant's trousers. In the interim the judge has been settling matrimonial difficulties, giving all sorts of gratuitous legal advice, acting as arbitrator over the question of the mutual use of the "landings" on the stairs in tenement houses, issuing warrants, and endeavoring to find an opportunity to continue the hearing in a complicated "false label" case. In this last several rather well-known attorneys are retained, who stand about disgustedly while the more immediate business of the court is being attended to. In most cases, however, the lawyers are hardly likely to add to the general reputation of the profession for ability. The inordinate number of cases which the magistrates have to dispose of results oftentimes in an inconclusive method of hearing charges of misdemeanors or of felonies, which, if the defendant be held at all, must of necessity be tried in a higher court or, as the magistrates say, "go downtown." If the defendant be a man of some influence, with enough money to retain a boisterous and bully-ragging lawyer, the line of least resistance may lead the judge almost unconsciously to regard the case as having "nothing in it." If, on the other hand, the complainant be a man of independence and insistence, with perhaps a bit of a pull, it is much easier to "hold" a defendant than to assume the responsibility of "turning him out." In point of fact some magistrates are prone to shift the responsibility off their own shoulders and to "hold" anyway. Thus there can be "no kick coming" so far as they are concerned. There are also cases where, rather than take the time for a careful examination of the case, the magistrate will "hold," when, if he had really examined into it with the necessary care, he would find that there was no _reasonable_ ground for his action. Now the grand jury is apt to find an indictment almost as a matter of course, and the defendant must then be placed on trial before a petit jury. In large measure this is the reason why the calendars of the criminal courts are crowded with cases which should never have gone beyond the police court, and why prisoners charged with homicide often lie for months in the Tombs before the petty business of the General Sessions can be cleaned up sufficiently to allow time for their trial. In this way much of the work which should be done by the police judge is cast upon the already over-burdened petit jury. The evil, however, does not stop there. When a petit jury finds that a majority of the cases brought before it have little or no merit it frequently gets the idea that all criminal business is of the same character and that it is empanelled for the purpose of a general jail delivery. After a jury has "turned out" twenty men in succession it can hardly be blamed for thinking that the twenty-first, who may be a real sinner, ought likewise to be sent home with the others to join his family. Respect for law cannot be maintained unless each part of the machine of justice does its full duty and assumes its own burdens and responsibilities. It goes without saying that no official comes into closer contact with the police than the magistrate. He gets to know them collectively and individually as no other person can. In determining what should be done in any given case he takes largely into consideration the personal equation of the officer making the arrest. He is able to detect exaggerated or manufactured evidence, which might easily pass as truth and perhaps convince a jury in a higher court. Hence one of the arguments for giving him a wider original jurisdiction. Petit juries are ordinarily disinclined to convict and send a man to State's prison in what seems to them trivial cases. If the magistrate had a wider scope in the disposal of such cases one of the principal reasons for our lack of respect for law (the sentimental and arbitrary action of juries) would be largely done away with. The magistrate, if he be the right kind of a man, can do more real good, right more real wrongs, and exert a more wholesome and salutary influence upon the working people of large cities than any benevolent or charitable association. He can do much to break up the alliance of the police with crime and to prevent arbitrary acts of violence and lawlessness upon their part committed either to compel the payment of blackmail or cover derelictions of duty. The police judge also soon learns the character of the practitioners who appear so constantly before him. Many a case which on its face seems founded on justice may be shown by a little questioning on the part of the magistrate to be nothing but an attempt to "hold up" or injure the defendant. The quasi-criminal classes know well the power of the criminal law and frequently invite it to secure private vengeance. When two rogues fall out there is often a race to see who can get to the police court first. In other cases the dense ignorance of complainant or defendant renders justice almost impossible. The shyster plays upon this to his profit. There is a story told of a practitioner with a large Italian following who was accustomed to display prominently upon a table in his office a small Testament and a huge Webster's Dictionary. After his clients had stated their case he would turn to them and ask: "Do you wish the law from the big book or the little book?" The clients would inquire the relative cost. "The law from the little book is ten dollars--the law from the big book is twenty-five dollars." The clients would consult together and on the assumption that the bigger the book the better the law, would almost invariably pay their twenty-five dollars and procure the best advice which Noah Webster could give. The fact that most police magistrates are appointed for purely political reasons is much to be deprecated. The days of bribery are over, but occasionally the public has some excuse for believing that the desire to do "a favor" for a political friend may have influenced the action of one of them. This would have less color were they usually appointed for some other and better reason than mere party fealty. Ordinarily the appointment goes to some faithful worker, who has won distinction in ward politics. Like enough he may make an excellent judge. At any rate he has a direct personal knowledge of the people with whom he is called to deal. He has equally first-hand information of local conditions and the _personnel_ of the police attached to the neighboring precincts. His judgment is apt to have a practical wisdom that a mere student of law could never achieve. He knows a crooked officer, a crooked lawyer, and a crooked complainant when he sees one. Whatever the verbal testimony happens to be he may very well "know different." He is, as the slang phrase accurately puts it, "wise to his job." And when all is said and done the "influence" exerted upon him will probably be only a request to "Do the best you can for So and So,--he's a friend of mine," which will not affect his action in the least. A college-bred lawyer with no actual knowledge of existing conditions might have the wool pulled over his eyes at every turn, and, while theoretically enforcing the law as it is printed on the statute books, fail utterly to achieve the rough-and-ready justice which the situation demands and which his less educated brethren can dispense by virtue of instinct acquired from long experience. It must be admitted, however, that the system of political appointments is just as bad, if not worse, when applied to police magistracies as when exercised in higher places. The appointees may or may not turn out successfully, and in New York we have had some extraordinary surprises in both directions. Did space permit a judicious selection of the historic rulings of traditional magistrates would make entertaining reading. One of the most famous was that of a certain learned member of this bench who is said to have discharged a defendant accused of killing a robin in Central Park in the following words: "You are charged with breaking a park ordinance forbidding the public to kill the robins. Of course you ought _not_ to kill the robins for they are harmless birds, but I have looked this thing up a little, and I find that from time immemorial it has been held that there can be no right of property in wild beasts. Now, a robin is clearly _ferræ naturæ_--of a wild nature--and so the city has no property in it. The ordinance is therefore unconstitutional, and I am constrained to discharge you. You may go." Nowhere than on the magistrate's bench is better illustrated the proverb that a little learning is a dangerous thing, but only a little learning, even such as classifies an innocent park robin as a wild beast, is preferable to an openly expressed intention of enforcing only those laws which appeal to the judge's individual sense of propriety. The writer recalls endeavoring some six years ago to induce a certain magistrate to hold a defendant for the grand jury for a certain statutory offence. The learned magistrate positively refused to do so on the ground that there was "no _sense_ in the law." "But it _is the law_!" returned the writer. "Well, I don't care if it is," replied the judge tartly. "I didn't make it. It's no law of mine, and I don't propose to follow it. Go and get the grand jury to indict if you can, but I won't hold this man for doing what I might want to do myself some day."[21] Taken as a body our magistrates, with a few obvious exceptions, are men of wide experience and practical common sense, who handle the enormous stream of business which comes before them with efficiency and dispatch. A forbidding exterior and, occasionally, a diction which might startle a Friday evening prayer meeting may co-exist with a fair mind, a kind heart, and an honest determination to see that justice is done. While the rights of the defendant are fully protected it is probable that actual justice is more nearly accomplished in these than in higher courts, where "reasonable doubt," the presumption of innocence, and kindred privileges, as interpreted by a sympathetic jury, intervene between the rights of the community and those of the prisoner at the bar. FOOTNOTES: [Footnote 15: Of course if he has been indicted by the grand jury in the first instance, he is arrested on a "bench warrant" issued by a judge of the General Sessions and placed in confinement without any preliminary examination.] [Footnote 16: This condition has been much improved in New York City by the institution of the "Night" Court in which one magistrate is always on duty. All minor offenders are at once arraigned before him, no matter what the hour, and thus may be disposed of without undue confinement.] [Footnote 17: "Many persons are arrested under suspicious circumstances, such as well-known criminals mysteriously loitering about the streets at night, or frequenting crowded places, or persons having property in their possession for which they can give no good account, nor of themselves. Frequently such an arrest is the first step in the detection of some crime in which (after investigation), if the proper complainant is found, a formal complaint is taken, and the prisoner is held for trial. In many instances such an arrest prevents the commission of crime." _Comparison with Previous Years._ ----------------+---------------------------------------- |Number Arraigned and Discharged. Year. |-----------+-----------+---------------- | Males. | Females. | Total. ----------------+-----------+-----------+---------------- 189 | 2,335 | 120 | 2,455 1897 | 1,756 | 129 | 1,885 1898 | 1,628 | 154 | 1,782 1899 | 2,033 | 301 | 2,334 1900 | 2,023 | 293 | 2,316 1901 | 2,066 | 197 | 2,263 1902 | 2,337 | 200 | 2,537 1903 | 2,634 | 115 | 2,749 1904 | 3,734 | 224 | 3,958 1905 | 3,551 | 231 | 3,782 1906 | 5,483 | 180 | 5,663 1907 | 2,656 | 118 | 2,774 ----------------+-----------+-----------+---------------- ] [Footnote 18: The nativity of the persons held for trial in 1907 or summarily tried and convicted in magistrates' courts was: United States 30,261 Ireland 8,061 Germany 4,219 England 1,044 Scotland 473 France 869 Italy 8,243 Russia 9,254 Greece 3,039 Other countries 5,790 ------ Total 71,253 ] [Footnote 19: In 1905 the number of persons so held in New York County by the magistrates of the first division, was 36,340.] [Footnote 20: During 1907 there were arrested 1,669 persons on charges of burglary, of whom 1,055 were held for trial.] [Footnote 21: See latter half of Subdivision 5, Section 278 New York Penal Code.] CHAPTER V THE TRIAL OF MISDEMEANORS One of the most efficient, effective, and important criminal courts in the civilized world is that established for the trial of misdemeanors in New York County. Three judges, each having an equal voice, act as arbiters of both law and fact. Originally this bench was filled by three regular police magistrates sitting in rotation, and in many cases the same judge before whom the prisoner had been arraigned in the first instance assisted in determining the final question of his guilt or innocence. But the old Court of Special Sessions acquired a very unsavory reputation for many reasons, the chief among them being its alleged susceptibility to political influence and the looseness with which its funds were handled, and it was finally legislated out of existence in 1895. Then a new court was created composed of three justices who, while they had the powers of police magistrates, did not sit in magistrates' courts, but devoted their entire time to the trial of misdemeanors. In the last eight years this court disposed of 65,579 cases, in which 40,894 persons were convicted of crime, either by trial or by plea of guilty. During the year 1907 alone 13,140 cases were disposed of, in which there were 7,960 convictions. The judges in this huge mill of justice rarely make mistakes, and few appeals are ever taken from their decisions. They have become, by virtue of long experience, experts in fact, and the training thus received has qualified several of them for higher office.[22] As the reader is already aware, a defendant charged in a magistrate's court with the commission of a misdemeanor, say that of petit larceny, is given an immediate hearing, and, if there be reasonable ground to believe him guilty, is held for trial in the Special Sessions. The information or affidavit, to which the complaining witness has sworn and which contains a more or less succinct account of the facts alleged against the prisoner, is thereupon forwarded to the clerk of the court and in due course the defendant appears, if he be on bail, or is brought from prison, if he be in confinement, to "plead." This information, which is the basis of the proceedings against him and which is practically the only record in the case, is commonly called the "complaint" and corresponds with the indictment found by the grand jury where the defendant is charged with the commission of a felony. After the prisoner has entered his plea, if he be in prison, he is given a trial almost immediately; if not, his case will probably come up within a week or two. The offences over which these three judges have jurisdiction are as many and as diversified as human ingenuity and the demands of modern civilized life, qualified by ineffective legislation, have combined to make them. As might be expected, petty larcenies and assaults furnish together more than thirty per cent of the cases tried. The following table will show the more numerous and important offences for which defendants were held in 1907 for the Special Sessions and their relative proportions: Petit larceny 2,890 Assault, third degree 2,097 Maintaining a disorderly house 674 Carry concealed pistol 988 Cruelty to animals 887 Failure to provide for minor 235 Possessing obscene prints 124 Indecent exposure 84 Malicious mischief 111 Unlawful entry 93 Adultery 11 Adulterated milk 252 Impure food 80 Possessing burglars' implements 35 Offence against trade-marks (364 P.C.) 6 Violation Liquor Tax Law 2,109 Violation Motor Vehicle Law 2,709 Violation Sanitary Code 321 Violation Labor Law 176 Violation Medical Law 48 Violation Dental Law 16 Miscellaneous 1,122 ------ Total 15,068 A spectator may in the course of a morning hear thirty or forty cases actually tried in which the charges cover almost every conceivable kind of sin, wrong, or prohibition. One prisoner is being prosecuted for assaulting a non-union workman, another for maintaining a public nuisance, another for a violation of the Liquor Tax Law, another for practising medicine without a license; a dozen cases will be rapidly disposed of wherein the defendants are charged with shoplifting or "illegal entry" (a charge frequently lodged against a suspected burglar who has made an entry without a "break" and has been caught before he has accomplished his purpose); others still will be tried for carrying concealed weapons, publishing or possessing indecent literature, violating trade-mark laws, breaking speed ordinances, or "malicious mischief"; while, if the student of institutions be patient, he may be rewarded by the exciting spectacle of one who is defending himself against the charge of selling skimmed milk, holding a mock auction, driving a spavined horse, writing a threatening letter, making a fraudulent assignment, pawning borrowed property, using a false weight, opening another's letter, keeping a cow in an unhealthy place, running a cock-fight, misrepresenting the circulation of a newspaper, divulging the contents of a telegram, impersonating a policeman, adulterating food; or, provided he be exceptionally fortunate, may hear the trial of a celebrated actress for her impersonation of "Sappho," or of a manager for producing "Mrs. Warren's Profession." He will see every conceivable type of man, woman, and child, either as defendant or witness, and he may also study every variety of human failing or weakness. No mock defence or prepared lie can deceive these argus-eyed judges; short shrift is made of the guilty, while the "reasonable doubt" is recognized the instant it puts in the most furtive appearance. In fact defendants are often found guilty or acquitted almost before they are aware they are on trial,--and this with no detriment to them or to their cause. The advocates of the abandonment of the jury system point to this court as their strongest argument. No time is lost in the selection of a jury,--a matter often of hours in the General Sessions in cases of no greater importance. There is no opening address on the part of the district attorney or counsel for the defendant,--the written statement or information sworn to by the complainant being entirely sufficient for the court. Cross-examination is cut down to its essentials and tests of "credibility" are almost unnecessary. At the conclusion of the case there are no harangues from either side, and the judges almost immediately announce their decision and generally impose sentence on the spot. Of course in nine cases out of ten the evidence is conclusive and the merest glance at the complainant and his or her witnesses is enough to satisfy the onlooker that their claim is honest and the charge substantial. In such cases the trials proceed with lightning-like celerity. The owner of the stolen property is sworn while the defendant and his lawyer are pushing their way through the crowd to the bar. "Mr. Blickendecker, are you a grocer, fifty-five years of age, residing at 1000-A-rear, First Avenue, and having a store at 666-1/2 Catharine Street?" rapidly articulates the deputy assistant district attorney. "Ya; I vas," answers Blickendecker heavily, trying helplessly to catch up. "Did you, about 4:49 P.M., onn Tueday, the 17th of April, observe the defendant near your place of business?" "Ya; I vas--I mean, ya, I did." "What did you see him do?" Blickendecker wipes his forehead and turns towards the court: "Your honors, gentlemens, I see dot feller dere----" "The defendant?" interrupts the presiding judge, patiently. "Ya--the defender, I see dot defender mit a leetle vagon on two wheels, py mein store mit anoder feller, unt dey catch up ein crate of eggs unt put him in de vagon unt skip mit him, unt I hollers 'Tief!' unt runs, unt de officer----" "That's enough. Any cross-examination? No? Call the officer." The officer is sworn. "Are you a member of the Municipal Police force of the city and county of New York, attached to the ---- Precinct, and were you so attached on the 17th of April last, and did you see the defendant on that day near the premises 666-1/2 Catharine Street?" "Shure I seen him. Him and another feller. They were makin' off wid old 'Delicatessen's' eggs. I catched this young feller----" "That's enough. Any cross-examination? No? Leave the stand." "The People rest," announces the assistant. "Take the stand," directs the lawyer, and his client shambles into the chair. "Did you steal Mr. Blickendecker's eggs?" "No, your honor; Cully Fagan asked me to go round and help him deliver some eggs. He said he'd gimme a drink. So I went along wid him. All of a sudden out comes this old guy and yells 'thief.' I gets scared and runs. I didn't mean no harm." "That is our case," says the lawyer. "No cross-examination," says the assistant. The judges consult for a moment. "We find the defendant guilty," announces the presiding judge, dipping his pen into the ink. "Now, young man, have you ever been convicted?" "No, your honor." "I advise you not to steal any more eggs. One month in the penitentiary. Next case!" Now here is a defendant given a perfectly fair, if not a very full, trial in less than three minutes. Of course it is in such a case practically a mere formality. Two witnesses who have had no previous acquaintance with the prisoner, whose eyesight is perfect, and who have no motive to swear falsely, identify him as caught _in flagrante delicto_. The defendant has merely put in his defence "on the chance." His sentence would be about the same in either case. The only disadvantage of so active a court is the fact that the multitude of the defendants render it almost impossible to make any very exhaustive study of the majority of them before sentence. However, as the sentences are all light, the defendant always gets the benefit of the doubt, and the court resolves all doubts in his favor. Sometimes in such a case a criminal conspiracy between the complainant and the officer is disclosed to "do" a mischievous, but not criminal, youth who has fallen into their disfavor. Then the witnesses are subjected to such a fire of questions that they wilt and wither in the blast, the defendant is acquitted and the prosecution's witnesses sometimes held for the action of the grand jury on a charge of perjury. Many a _cause célèbre_ has originated in the Special Sessions through the perspicacity of some member of that bench during a petty trial, and defendants there convicted often divulge in their confessions evidence which for a time sets the newspaper world by the ears. This is especially true of cases where some civil officer is accused of taking a bribe to influence his action or to make an appointment. He may be convicted, confess, and for a day or two the papers are full of the unearthing of a far-reaching conspiracy to debauch the city government, barter offices at wholesale, and deliver the city to a coterie of criminals. The next step in the proceeding is the unfortunate discovery that the defendant's confession, since it cannot be corroborated, is entirely worthless. Yet, as he has apparently done all he could to atone for his offence, he receives a mitigated sentence, while the uproar occasioned by his sensational disclosures subsides as suddenly as it began. The bane of the Court of Special Sessions in New York County and very likely the bane of all similar courts, are the so-called "Liquor Tax cases." As one of the officers of this court recently said: "In this class of cases the court knows that it is being 'flim-flammed,' and, in addition, that it is helpless. We convict in about sixty per cent of the cases, but the judges know perfectly well that a considerable number of those convicted are men who, while not honest enough not to violate the law, are too honest to pay corruption money." The possibilities for blackmail and the arbitrary and unequal way in which the law is enforced in different parts of the city (one section being allowed to be "wide open" while an adjacent district is "dry") render the judges loath to convict even in "straight" cases. When Liquor Tax cases are transferred, by order of the judge presiding in Part I, for trial in the General Sessions, the juries before which they are prosecuted will not convict at all.[23] In the same way the court looks with grave suspicion on most cases where a defendant is arraigned charged with "assault" on an officer. They expect to see arraigned at the bar (and are usually not disappointed) a small man covered with bandages, while a burly officer without a scratch upon his rosy countenance takes the stand and swears that the defendant assaulted him. The policeman always has plenty of corroboration--the defendant none at all. The chances are that the relative sizes of the two men are such that if the officer coughed the defendant would drop dead. The proper charge in such a case would be, not attempted assault on an officer, but _attempted suicide_. The truth of the matter probably is that the small man, having done or said something to irritate the officer, has been pounded to a pulp and then ignominiously haled away to the station house, while his terrified companions, knowing full well that if they interfered theirs would be a similar fate, have retired to their homes privately to execrate a state of civilization where humble citizens can be subjected to such persecution. Practically the Special Sessions is the final court of disposition for most misdemeanors. Except in automobile, theatrical, health, copyright, and trade-mark cases and a few others, a majority of the defendants do not have enough money even to hire a lawyer, to say nothing of taking an appeal. They are disposed of then and there just as in certain cases they are disposed of in the magistrates' courts. For them a sentence once imposed is final. Occasionally the Special Sessions is the scene of a great trial, as celebrated as those fought out in the "Parts" upstairs or in the criminal trial term of the Supreme Court across the hall. A prominent druggist may have been accused of refilling bottles with spurious or diluted contents. He is being prosecuted by the owners of the trade-mark or label. They retain distinguished counsel to prepare the case for the prosecution. The accused engages equally able lawyers to defend him. The crime is highly technical and the evidence almost entirely a matter of chemical analysis and expert opinion. The battle goes on for weeks or even months. A jury would have become hopelessly confused and the issue successfully obscured, but the three judges are expert jurymen, and in due course, if he be guilty, the defendant is inevitably convicted. Such a trial may cost the parties tens of thousands of dollars for expert testimony alone, while the sentence of the defendant will very likely be not more than a two-hundred-and-fifty-dollar fine. Even so, the integrity of the trade-mark has been sustained and the swindler stamped as a criminal. Fifty per cent or more of the work of the Special Sessions is practically amplified police-court business, but it is accomplished with an exactitude and efficiency that makes much of that done in the magistrates' courts appear crude indeed. The lesson of this particular court is that police business can be done speedily, effectively, and justly, provided the right men are selected to do it. Fully seventy-five per cent of the criminals begin with petty infractions of the law. A driver for an iceman may "swipe" his comrade's horse blanket. If he be convicted and sent to the penitentiary he may learn to commit crimes of which he had never dreamed in his driver days, when his highest ambition was to get a ticket to a "chowder" or to a "grand ball." His next appearance may be in the General Sessions charged with burglary, and his last in the Supreme Court under indictment for murder. If, on the other hand, having been found guilty, he be merely reprimanded and paroled under a suspended sentence, he will in all likelihood never appear in court as a defendant again. Hence an opportunity, greater even than that of the police justice, for the exercise of a wise and humane discretion. The multitude of prisoners who are unable to employ counsel have created a bevy of lawyers, abundantly able to look out for the interests of petty offenders, who stand or sit near the bar and are assigned by the court to the various defendants. A whispered fifteen seconds' conversation with their unfortunate client and they are enabled to take charge of the case. Long experience has made them almost as expert in estimating human nature as the judges themselves, and they are familiar with every trick of the trade which may raise a "reasonable doubt." The leaders among them have skilful "runners" who haunt the police courts and the corridors of the building, heralding the virtues and successes of their masters, handing cards to prospective clients, and currying business in every conceivable manner. Observing a forlorn person, who timidly responds when his case is called, the runner instantly offers him the services of the "biggest" lawyer in the court for a five-, three-, or two-dollar retainer. If the client escapes conviction he is supposed to pay twenty-five dollars more and is dunned until he does. This may seem petty business and small pickings, but when one considers that thirteen thousand odd cases are disposed of each year, one sees that at even the modest fee of ten dollars per case there is over a hundred thousand dollars a year in the Special Sessions waiting for somebody. The best of these lawyers earn as much as five thousand dollars per year, including their outside and police-court business. The runner usually gets nearly as much. Sometimes there will be a one-hundred-dollar, a two-hundred-and-fifty-dollar, or even a five-hundred-dollar fee. In reality there is more money to be made in the police court than in the Special Sessions, for it is when the offender has just been caught and is in his first spasm of terror that he is most ready to "give up." Police-court fees are sometimes very high. The most notable figure of this bar was Tom Cherry, otherwise known as "The Attorney-General of the Special Sessions." When sober he was a most capable, rough-and-ready, catch-as-catch-can, police-court lawyer. His fame extended to every magistrate's court, and his business was so constant that he never sat down, but stood at the bar from the opening of court to its adjournment, defending almost every prisoner who had money to pay a fee, and being assigned to practically all those who had not. His success was his undoing. Without any knowledge of law, although he presumably had passed the Bar examinations (Heaven knows how!), his judgment of character, his ready wit, and his quick tongue made him no unworthy antagonist for a well-trained youngster. But Cherry never took an unfair advantage, and his statement as to his client's past, and sometimes as to his innocence, was received without question by the court. It was a boon to a new assistant to gain Cherry's confidence; and it was a reproach to many that they did not do so. Cherry finally succumbed to his closest friend and worst enemy--drink. His periodic absences became more and more frequent, and finally the word was sadly whispered through the building that Cherry had "passed." His memory is still green and his smiling face will never be forgotten by those who knew him. A rival attorney almost immediately succeeded to his practice and his particular place beside the bar, but the Court of Special Sessions is not the same. The practices of the shysters are the curse of the lower courts, and their enormities are such that a special cycle in Hades should be reserved for their particular retribution. Preying upon ignorance and vice, they become hardened to every appeal of human sympathy and often deserve punishment a thousand times more heavy than the miserable wretches whom they make a pretence of defending. They pervert justice and prostitute a sacred calling, extorting from their clients the uttermost farthing by fear and false pretence. To show that this charge is not ill-founded, the reader may take as an example the practice of the shyster in dealing with those unfortunate women who are the common prey of the corrupt plain-clothes man and his conscienceless ally--the police-court lawyer. Let us suppose that a certain section of the town is, as the saying goes, "wide open," and the police are regularly collecting protection money according to the approved method of "the system." The houses which pay up are left undisturbed--and all do pay up. So does the little street walker who plies her trade in the open. Some citizen or newspaper makes a complaint that the police are not doing their duty. There is a bare chance that political capital will be made of it and word is sent to the captain of the precinct to "get busy." He sends for the plain-clothes man, and tells him "there are not arrests enough." The officer answers that "everything is quiet." "Get busy," says the captain. A scapegoat is necessary and so the officer goes out and, leaving the bawdy-houses untroubled, tracks some miserable creature to her lonely room and there arrests her under the pretence that she is violating the "Tenement House Law." Now the worst that would happen to such an unfortunate would be, having "waived examination" before the magistrate, and pleaded guilty in Special Sessions, to be fined twenty-five or fifty dollars. The girl usually does not know this. When she is brought in under arrest the keeper "tips off" the runner for some lawyer, who first frightens her into believing that a long term of imprisonment confronts her, and then introduces his master. The latter in turn offers to get her out on bail, meantime determining by an expert cross-examination, at which he is a past master, exactly how much money she has in the world. He then proceeds to acquire this by every means at his command. An actual case will illustrate what follows. A young girl who had fallen from virtue, but who had never been arrested before, was brought into the Jefferson Market prison. She had saved five hundred dollars with which she intended the following week to return to her native town in New Hampshire and start life anew. The keeper led her to believe that she would be imprisoned in the penitentiary for nearly a year unless she could "beat the case." One of these buzzards learned of her distress and offered to procure bail for her for the sum of fifty dollars. A straw bondsman was produced, and she paid him the money and was liberated. Meanwhile the lawyer had learned of the existence of her five hundred dollars. By terrifying her with all sorts of stories as to what would possibly happen to her, he succeeded in inducing her to pay him three hundred as a retainer to appear for her at the hearing in the magistrate's court. He had guaranteed to get her off then and there, but when her case was called he happened to be engaged in reading a newspaper and, looking up from where he was sitting, merely remarked, "Waives examination, your honor." The girl had only one hundred and fifty dollars left, and as yet had had no defence, but the shyster now demanded and received one hundred dollars more for representing her in the Special Sessions. She now had but fifty dollars. Immediately after the hearing in the police court the bondsman "surrendered" her and she was locked up in the Tombs pending her trial, for she had not money enough to secure another bail bond. Here she languished three or four days. When at last her case appeared upon the calendar the shyster did not even take the trouble to come to court himself, but telephoned to another buzzard that she still had fifty dollars, telling him to "take her on." Abandoned by her counsel, alone and in prison, she gave up the last cent she had, hoping thus still to escape the dreadful fate predicted for her. When she was called to the bar the second lawyer informed her she had no defence and the best thing she could do was to plead guilty. This she did and was fined twenty-five dollars, but, having now no money, was compelled to serve out her time, a day for each dollar, in the City Prison, at the end of which time she was cast penniless upon the streets. Many an originally honest young fellow who, in a sincere attempt to build up a small practice, has haunted the magistrate's court and secured petty police business has been gradually drawn into the vortex of crime until he is even more tainted than those whom he defends. The Legal Aid Society, which, so far as the writer is aware, is the only bona fide charitable organization existing in New York for the purpose of assisting impoverished persons to secure legal counsel, does not undertake any criminal business. No greater service could be rendered to the community than by some society organized to protect helpless defendants who have fallen victims to the vultures who prey upon the prison pens. At the present time the official prosecutor himself is the only person to whom one charged with a criminal offence can turn with any hope of relief from his own lawyer, and if the number of cases were known where the prosecutor has befriended the prosecuted the eyes of jurors and of the public would be opened to the real spirit which animates a fair-minded district attorney. A favorite trick of shysters if they have an imprisoned client who still refuses to "give up," is to plead "not guilty and not ready" and thus have the case adjourned until they squeeze their victim dry. A defendant who has any money is never permitted to go to trial or even to plead guilty before his money is entirely exhausted. This is not romance, it is practice. The men who do these things can be seen any day in every police court in New York--heartless, cynical, merciless. Lying and deceit are their stock in trade, corruption their daily food. Within three months one of these gentry not only compelled an eighteen-year-old girl to give him a fine Etruscan ring which she had inherited, and which he pawned for five dollars, but stripped her of a new silk petticoat which he carried away in a newspaper as a fee. This woman served ten days because she could not pay her fine. Another woman who had _stolen an umbrella_ gave a shyster her watch. He pawned it and then abandoned her, when she came up for trial. Each of these men has a special line of clients which he serves, either because he is supposed to be particularly expert in such cases or because he is regularly retained by the "trust" which they compose. Thus the East Side pickpockets have one attorney, the "green-goods" men another, the opium sellers a third, the abortionists a fourth, while every "short changing," "thimble rigging," or "flim-flam" case sees the same lawyer for the defence. It is a fact of considerable significance that most retailers charged with selling adulterated milk are defended by the same lawyers. The large milk companies apparently invite the trade of the small dealer by offering him cheap milk, and a guarantee that if he is caught selling their product they will not only defend him but, if he be found guilty, will pay his fine. Who does the adulterating? The company or the retailer? It is almost impossible to say. Nevertheless, if lack of evidence prevents proceedings against the companies themselves, the next best thing is to punish the dealers who act as their agents, under the guise of doing an independent business. If prison sentences were invariably inflicted in such cases the dealers would soon find their miserable business as unhealthy as do the consumers who buy from them. Some very disreputable, but, nevertheless, highly amusing tricks are invoked by wily practitioners in the Special Sessions to secure the release of their clients. One of the most adroit is to secure adjournments from day to day on various pretexts until the patience of the complaining witness is nearly exhausted. When the case is at last about to be called for trial the lawyer tells his runner to go into the corridor outside the court-room and send in word that some one desires to see the complainant. The complainant goes out to see what is wanted. In the meantime the case is moved for trial, and when his name is called he naturally fails to respond. The shyster, in a most aggrieved tone, then informs the court that the defendant "is a hard-working man who has already been dragged down to court four or five times," on each occasion being compelled to lose an entire day's pay; that he is the only support of an invalid wife, an aged mother, six children, and an imbecile brother; that the defence is and always has been ready to proceed with the case; that simply in the interests of justice he requests that the defendant be discharged on his own recognizance or acquitted. In many cases this motion is granted and the complainant hurries back into the court-room just in time to meet the defendant making a triumphal exit. The tears and laughter of the police courts are the tears and laughter of the Sessions. The _Miserables_ of Hugo are the miserables of to-day. Jean Valjean, Fantine, and Cosette haunt the corridors of our courts. As well try to paint the sufferings and experiences of mankind in a single picture as the ten thousand yearly tragedies of the Special Sessions in a single chapter. FOOTNOTES: [Footnote 22: Misdemeanors Disposed of During the Year 1907. Convicted 1,853 Acquitted 1,045 Plead Guilty 6,107 Discharged 502 Demurrers allowed 1 Forfeited 457 Actions dismissed 3,175 ------ Total 13,140 ] [Footnote 23: See note, infra, p. 210.] CHAPTER VI THE GRAND JURY The constitutions and laws of most of the States of the Union provide that no person shall be tried for a felony unless he shall first have been indicted for his offence by a grand jury. The defendant may have been caught in the very act, have freely acknowledged his guilt to the officer who arrested him, have admitted it before the magistrate, and have signed a full and complete confession of his crime in every detail, yet he cannot be placed on trial or his plea of guilty received until a body of twenty-three intelligent, but exceedingly busy, gentlemen, sitting together in a secluded chamber, have solemnly deliberated upon the case. If they agree with the prisoner in his contention that he is guilty they thereupon file a diffuse and perplexing document to that effect, which they have not read, and probably would not understand if they had. The proceeding has cost the county some additional expense and the defendant a day or two longer in jail, and he has still to be tried before a petit jury, where the evidence must be presented again at the greatest length, and where the grand jury's action cannot be considered in any way as affecting the issue. If, on the other hand, the prisoner contends that he is innocent, and yet the magistrate who has heard the case thinks otherwise, the same twenty-three gentlemen, hearing, as a general rule, only the evidence in his _dis_favor, will almost inevitably return a true bill against him, and he will be put to his trial. Of all the features of modern criminal procedure, bar only the office of coroner, the grand jury, or "The Grand Inquest," as it is called, is the most archaic. While without any doubt in thinly populated districts it may still be of value, in crowded cities like New York, where the volume of criminal business is overwhelming, it has in large measure ceased to be either effective or desirable so far as the ordinary run of criminal cases is concerned. Some States manage to dispense entirely with the services of the grand jury. The prosecutor receives the complaint against the accused directly from the committing magistrate, files an information and puts the prisoner on trial. Truly this would seem both cheap and expeditious. Among the dusty archives of the Court of General Sessions lie a pile of parchment-bound volumes which contain the earliest minutes of criminal proceedings in the county. The first page of the most ancient of these presents an account of the empanelling of the first grand jury of which any record now remains in New York. It reads as follows: PROVINCE OF NEW YORK. Att the General Quarter Sessions of our Lord the King held att the Citty Hall in the Citty of New-York for Our Sayd Lord the King, and the body of the sayd Citty and County of New-York, that is to say on Tuesday the 8th day of February, in the Six and thirtieth year of the Reigne of our Sovereigne Lord Charles the Second of England, Scottland, France and Ireland, King, Defender of the faith, & before Cornelis Steenyck, Esqr, Mayr of the sayd Citty, and James Graham, Recorder, Nicholas Bayard, John Inians, Wm Pinho ... Guyl. Ver Plank, Jno Robinson and William Cox, Esqrs, Aldermen and Justices of the Peace of the sayd Citty and County, Commisionated by Authority undr his Royal Highness James Duke of York and Albany Lord Proprietr of the Province aforesd. * * * * * The Grand Jury "which consisted of Nineteen [?],[24] was Called and Sworne According to An Oath Agreed On by the Court, and was as followeth, viz.: "You Shall diligently Enquire and true Presentmt make of all Such things and mattrs as shall be giuen you in Charge Or shall Come to your knowledge this Present Servise. The Kings, His Royal Highness Lord Proprietr and this City Councell Yor fallows and your owne you shall well and Truely keep Secreet. You shall present nothing for Malace or Euill will that you Bare to Any Person, Neither shall you Leaue anything unpresented for Loue, favour, affection Reward Or Any hopes thereof, but in all things that shall Concerne this Present Servise you Shall Present the truth the whole truth and nothing but the truth, According to yor best skill and knowledge--Soe help you God." Mr. Francis Rumbout was Apoynted foreman. * * * * * The Recorder ... read to them ther Charge whch was Deliuered in Writeing. Then follows the quaint record of the first presentment or bill of indictment: John Robinson, } For Our Lord the Kings sworne to Wm Cox, } declare to the grand jury wt they Richard Elliott, } know about the Burgulary Henry Darby Bryan. } Thomassen is Charged with. The Bill Against him was Committed to the Grand Jury wth the Examncon of the witnesses, and the Court adjourned till four in the afternoone. In the Afternoone the Court being opened the Indictmt agst Henry Thomassen was returned by the Grand Jury Billa vera. Henry Thomassen being Called for the Sherriff returnes that he has Broak Prison and made his Escape, and Desires tyme till the next Sessions to Persue him. Ordered That the Sherriff doe make Persuits after the prisonr to haue him att the next session to abide his Tryall. The Grand Jury was dismissed from further Attendance till ye next sessions and ye court dissolved. It is interesting to observe that on the 13th day of the November following, in the first year of "the Reigne of our Sovereignee Lord James the Second of England, Scotland, France, and Ireland," etc., the "sherriff" having apparently made good "persuits" of Thomassen and effected his capture, the latter was brought to the bar and duly charged: "For that he not haveing the feare of God before his eyes, but being Lead by the instigation of the divell ... by force and armes the Cellar belonging to and being parte of the dwelling house of William Cox of the Citty of New-Yorke merchant in the night Season, To Witt, between or about the houres of tenn or Eleven of the Clock ... feloniously and burgularly did breake and into the same did Enter with an intent to steale and spoile the goods and Chattles of the said William Cox contrary to the peace of our said sovereigne Lord the King his Crowne and dignity." Having pleaded not guilty and put himself upon the county a jury was empanelled who swore: "That the said Henry Thomassen is guilty of the feleony and burgularly aforesaid in the said inditement above specifyed in manner and forme as above against him is supposed, Therefore it is considered by the Court, that the aforesaid Henry Thomassen be branded on the forehead with the Letter B, and be whipped on the bare back eleven Stripes on the fourteenth day of November instant in the morning by Eleven of the Clock, before the City Hall and pay all costs and charges of prosecution." The oath of the grand jurors, their general procedure, and the form of indictment are practically the same up to the present day. To appreciate fully just what part the grand jury plays in the administration of criminal justice the reader should remember that almost all defendants in criminal cases are brought immediately after their arrest before a police magistrate and given, if they so desire, an exhaustive hearing. If the magistrate thinks there is sufficient cause to believe the prisoner has committed the crime charged against him he is held (if the crime be a felony or a libel) for the action of the grand jury, or if it be a misdemeanor, for whatever court tries such offences,--in New York County the Court of Special Sessions. Of course it is the privilege of the defendant to be admitted to bail, save where the charge is one of murder, until the proceedings against him result either in his final discharge or his indictment, and, as has been said before, once he is _held_ for the grand jury he cannot, even if he be a self-confessed criminal, be tried or punished until that body has deliberated upon his case. The following table shows the number of arrests for felony in New York County each year since 1900, the number of persons so arrested who were "held" by magistrates for the action of the grand jury, and the number of indictments "found" by that body: ------+-------------+----------------+-------------+-------------- Year | Number of | Number of | Number of | Population of | Arrests for | Persons "Held" | Indictments | New York | Felony | for Action of | Found | County | | Grand Jury | | ------+-------------+----------------+-------------+-------------- 1900 | 8,588 | 4,473 | 3,674 | 2,050,600 1901 | 8,435 | 4,395 | 4,210 | 2,095,116 1902 | 9,465 | 5,020 | 3,890 | 2,139,632 1903 | 9,939 | 4,372 | 3,898 | 2,186,017 1904 | 9,238 | 3,452 | 3,950 | 2,235,060 1905 | 11,688 | 4,751 | 4,199 | 2,468,046 1906 | 11,553 | 4,169 | 4,116 | 2,553,100 1907 | 13,913 | 5,879 | 5,295 | 2,687,800 ------+-------------+----------------+-------------+-------------- Total | 119,206 | 57,241 | 52,027 | ....... ------+-------------+----------------+-------------+-------------- It may be of some interest to note how this inquisitorial body is brought into being. Every year a Board of Commissioners, consisting of the Mayor, the Recorder, the Presiding Justice of the Supreme Court, and others, meet and make up a list of a thousand names from which the grand jurors for the year are to be drawn. These names are placed in a wheel and each month fifty of them are drawn out at random by the County Clerk in the presence of one of the judges of the General Sessions. From these fifty names the grand jury of the succeeding month are chosen by lot. Of course the selection of jurors must perforce be made with ostensible impartiality, for a grand jury which was amenable to political influence would render the administration of justice worse than a farce. Such a condition has not been unknown. Not so very long ago Recorder Goff observed that certain representative gentlemen who had served on the grand jury for years were no longer drawn. In view of the significance of the political situation at that time the fact seemed peculiar and he determined to make a personal investigation. Accordingly at the next monthly drawing the Recorder inserted his own hand in the wheel and found that some of the slips were heavier and of a different texture from the others, and could easily be separated by the sense of touch. The inference was obvious. Undoubtedly the opportunity thus to elect between the sheep and the goats had been made good use of. No excuse for this astounding situation was offered, and all the slips at once were destroyed by order of the court. Later on it was explained that the manufacturer "_had not been able to furnish all the slips of the same material_." As but twenty-three grand jurymen are selected each month, only two hundred and seventy-six out of the total number chosen ever actually serve. The judge appoints a foreman, usually a man of some previous experience, and the jury are sworn. The court then delivers a charge and reads or calls to their attention certain sections from the Code of Criminal Procedure. If there is any matter of public notoriety which comes within their purvue, such as crimes against the elective franchise, or insurance, banking, or other frauds, he is likely to dwell upon the necessity of paying particular attention to this variety of offence. The jury then retire to the rooms prepared for them and begin their secret deliberations. They are now prepared to hear the evidence against all persons charged with felonies or libel, who have been held for their action by the police magistrates. The original papers in all these cases have already been copied under the direction of the district attorney and the witnesses subpoenaed to attend and give their testimony. These subpoenas are served by attachés of the prosecutor's office, commonly known as "county detectives," or, more popularly, "sleuths." It should be observed that the district attorney in fact decides what cases shall be submitted, and prepares the daily calendar of the grand jury, which as a rule does not know in advance what business it is to consider. In addition to this, the district attorney draws, usually in advance, all the indictments. The indictment may be said to be the most important individual paper in criminal procedure, for upon its sufficiency depends the question of whether or not a defendant may be tried, or if tried and convicted, sentenced to prison. The general form of these instruments has varied little during many centuries. They are as archaic as the grand jury itself. Originally the draughter of documents was paid by the word, and the more prolix he could be the better it was for him. This fact naturally influenced the form of all legal papers. His sins are still directly visited upon us. Moreover, not the best forms, but the worst are our inheritance, for usually only the sufficiency of the worst is questioned and tested by appeal. If an indictment is not absolutely defective, it is sustained by the higher courts, and having been passed upon and not found wanting, immediately becomes a model for all future draughtsmen. It may fairly be said that the more faulty an indictment is (so long as it be not actually void) the better its chance of immortality. Probably the simplest indictment which the grand jury can find is one for larceny. Let us suppose that a servant, Maria Holohan, has stolen the teapot of her master, the Hon. Silas Appleboy. The grand jury present an indictment against her in the following terms: Court of General Sessions of the Peace in and for the County of New York. The People of the State of New York against Maria Holohan. The People of the State of New York, by this indictment, accuse Maria Holohan of the crime of grand larceny in the second degree committed as follows: The said Maria Holohan, late of the Borough of Manhattan of the City of New York, in the County of New York, aforesaid, on the 1st day of April, in the year of our Lord, One thousand, nine hundred and seven, at the Borough and County aforesaid, one teapot of the value of $50, of the goods, chattels and personal property of one Silas Appleboy, then and there being found, then and there feloniously did steal, take and carry away, against the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity. A. BIRD, District Attorney. This is merely saying that "the grand jury charge Maria Holohan with stealing the silver teapot of Silas Appleboy on April 1, 1907." It is the shortest indictment possible. A complicated indictment may fill hundreds of pages. Many interesting old indictments are on file among the records of the General Sessions; and if one can judge by the frequency with which the names of divers ungodly and reckless Philadelphians are inscribed upon their pages, "the general reputation" of the City of Brotherly Love for "peace and quiet" must have considerably improved during the past two hundred years. As a usual thing we find among the papers filed with the indictment the original "information" sworn to by the aggrieved party. Give heed to the "unmerciful conduct" of Mr. William Miller: CITY OF NEW } YORK ss: } Mathew O'Brien of the City of New York Mariner maketh Oath and Saith that on Sunday night the first Day of November instant he this Deponent being at the Tavern kept by Francis King on the Dock between the Hours of Ten and Eleven of the Clock and having a dispute with the Landlord relative to a French Crown dropped by this Deponent one William Miller who this Deponent heard and believes _is Marker to a Billiard Table in Philadelphia_ immediately challenged this Dept. to fight him and stopped this Deponent from going out either at the Door or window altho. he made frequent attempts for that purpose and thereupon knocked this Deponent down, and beat kicked and wounded him in a desperate and unmerciful manner. This Dept. Saith he also lost out of his pocket the whole of his Money then about him consisting of five Guineas in Gold two Crown pieces and a Note of hand for ten guineas. And further saith not. Mathew O'Brien. Sworn the 1 Day of Novr. 1704 before me Jno Broome, Just Peace. The grand jury of to-day is the same old grand jury that indicted William Miller; and the cases are piling up,--piling up, at the rate of three, four, five, or even six hundred a month. What would Mr. Francis Rumbout, who was "apoynted" foreman of that earliest grand jury, have said if he had been obliged to pass upon six hundred cases in a month? The time which could actually be given to the consideration of any particular charge under such circumstances would average about _six minutes_! For example, Giuseppe Candido, having been summoned to appear suddenly, finds himself standing in the centre of a large room around which are arranged a semi-circle of inquisitors. He states where he lives, what his business is, that he knows Michael Angelo Spaghetti, and that the latter cut him in the shoulder in a quarrel over a glass of beer. He is then excused. The grand jury take a vote and Spaghetti is indicted for "wilfully and feloniously committing an assault with intent to kill." Generally only one side of the case is heard. There is very little attempt made to hold the witnesses down to the strict rules of evidence. It is all _ex parte_. "_L'évidence at jurie est que cunque chose que serve le partie a prover l'issue pur luy_," as Henry Finch put it at the beginning of the seventeenth century. Once in a great while, if there is something a little peculiar in the charge or in the manner in which the witnesses give their testimony, the jurors may become suspicious and send out for other witnesses or possibly for the defendant himself. Of course he cannot be compelled to testify, but usually he is glad of a chance to explain away the accusation if he can. Perchance the inquisitors refuse to indict. But what a waste of time for twenty-three busy men! And as a rule what trivial matters are brought to their attention! Most of the cases dismissed are so inherently weak that the district attorney would himself have discharged the defendants of his own motion, but the action of the grand jury saves him the trouble and the odium, if any, and diffuses it among an irresponsible body. The same thing is true of indictments found against influential persons,--the responsibility is with twenty-three, not merely one. But if the grand jury is to exist at all, it must be constituted, and required to act, in accordance with the law. The indictment is invalid if there be on the grand jury one who has not the proper qualification to sit, or if an unauthorized person be present, or if the evidence is not legally sufficient. Even if the defendant be as guilty as the Father of Sin, he may make a motion to dismiss the indictment on any of these grounds, and, whether the point be well taken or no, the case may in consequence be delayed for weeks. Where the defendant has the means to employ astute and learned counsel, he may retard his trial for weeks, or even months, by questioning the proceedings of the grand jury which found the indictment against him. For example, when Fire Commissioner John J. Scannel was indicted for conspiracy to defraud the city of New York, his lawyers ferreted out the fact that one of the grand jurors who had found the indictment lived a large portion of the year in the town of New Rochelle. When the defendant was called upon to plead to his indictment the lawyers offered "_a plea in abatement_," although the law expressly provides that no pleas save of "guilty" or "not guilty" or of "_autrefois acquit_" may now be entered. They insisted, however, on their right to such a plea and the matter was delayed for a long time. Their plea having been refused they then moved to dismiss the indictment because of the alleged irregularity in having this juror present who spent his summers at the seashore. The determination of this motion took months. How like the situation to that which existed in 1433, when a statute was enacted in order to remedy, if possible, somewhat similar abuses. " ... When the Grand Jury appears and is ready to pass, a tenant or defendant or one of the petit jury pleads false pleas not tryable by the Grand Jury, and so delays proceedings until this be tried. When this is settled for the plaintiff, another pleads a like false plea since the last continuance; and so each of the defendants, tenants, or jurors, one after another, may plead and delay the Grand Jury; and although all be false and feigned, the Common Law has no penalty. This has caused great vexation and travail to the grand juries, and plaintiffs have been so impoverished that they could not pursue their cases, and jurors are more emboldened to swear falsely."[25] A substantial proportion of the delays in criminal procedure are due to the interminable motions based upon alleged irregularities in the constitution and action of the grand jury, and the insufficiency of indictments. Such delays would vanish with the abolition of that body. But beyond its general power to investigate specific charges of crime laid before it, the grand jury constitutes the only general inquisitorial body that we have, and its value and services in this respect must not be overlooked. It is highly important that the power should reside in some responsible body to summon witnesses and compel testimony anent suspected offences, conspiracies, and official misconduct. This is precisely what the grand jury did as far back as 1300, when it acted as a "suspecting" jury. Only through some such power can a rumor of crime, unsubstantial and intangible in itself, be traced to its source and the knowledge of those who can testify as to the perpetration of it secured at first hand. Acting within its legal powers as an investigating body, the grand jury has a vast power and can be immensely useful to the community, but when it attempts to do more, its action has no more validity and is entitled to no more respect than that of any other self-constituted inquisitorial body of intelligent citizens. A belief is quite prevalent, however, among grand jurymen that it is their duty not only to ascertain what crimes have been committed and to find indictments for them, but to act as the censors of the public morals, as watchdogs of the public treasury, as the promoters of legislation, and generally as the conservators of the public interests. This impression is entirely erroneous, and yet it is surprising to what an extent grand jurors imagine that because of their office some particular sanctity attaches to their enunciation of opinions in matters that do not concern them. A grand juror walking in the morning from his house to the corner to take a street-car, accidentally stumbles over a coal-hole cover; he reports it to his associates; many of them know persons who have stumbled over coal-hole covers; they talk the matter over and decide that there should be no coal-holes, since with the abolition of the coal-hole the coal-hole cover also would disappear. They call upon the commissioner of public works to appear before them and testify; upon the street-cleaning commissioner; upon the commissioner of buildings; they learn how many coal-holes there are in the city; what their covers are made of; how they are fastened or are not fastened in place; and some day when the grand jury comes down into court, the foreman arises and states that he has a presentment. The judge on the bench requests him to hand it up; he delivers it to the clerk, who passes it to the judge, who returns it to the clerk and directs him to read it. The clerk stands; the grand jurors stand; the clerk reads: "To the Honorable John Smith, Presiding Justice of the Court of General Sessions: The Grand Jury of the County of New York respectfully present: Our attention has been called to the large number of unprotected and unguarded coal-holes existing in the County of New York; we have called before us a large number of witnesses and given much time to the taking of testimony relative thereto; we find that in the past year ten thousand persons have lost their lives through falling into improperly guarded coal-holes, and that the records of the hospitals show lists of over one hundred thousand others who have been severely injured by similar catastrophies; while it is beyond the capacity of the mind of man to comprehend the infinite number of those who have been wounded, bruised, lacerated and contused by similar accidents, to an extent not sufficient to render hospital aid necessary, etc." And such a presentment goes on with its statistics and figures and ends with the recommendation that the legislature pass a certain law, that the aldermen pass a certain ordinance, that certain laws or certain ordinances be repealed, or that other legislative interference be had, or legislative action should be taken, or that some city official or city officials do this or do that, or that some department make such and such an investigation and act thereon in such and such a way, and concludes with the signature of the foreman and secretary of the grand jury. The court then arises, bows to the grand jurors, says: "Gentlemen, we have heard your presentment; I now direct that it be placed on file in this court and that copies thereof be forwarded forthwith by the clerks to the heads of the appropriate departments." And the grand jurors retire, imagining that in some way they have contributed directly to the public weal. An examination of the long list of presentments on file in the office of the clerk of the Court of General Sessions will show the diversified interests to which the grand jury, acting as we have shown as a merely self-constituted _censor morum_, has devoted its attention and in which it has consumed many of its working hours in the past. So far as we know, no action whatever has ever been taken upon any of these presentments. That at times they may have done some good through calling to the attention of the public press matters which otherwise would not be under scrutiny, may be admitted; but the discussion of them in the press has usually been as ephemeral as the existence of the grand jury by which they were filed; and in general it may be said that the only effect of a grand jury's meddling with these things is to detract from the dignity of its office and the importance of the work which it and it alone can lawfully do. The lay reader will naturally be led to inquire why this archaic institution which it costs so much time and money to perpetuate, which causes so much unnecessary inconvenience to witnesses and offers so many technical opportunities for delay, which frequently is ineffective and officious, and for the most part concerns itself with the most trivial matters only, should not be abolished, and why prisoners charged with crime whose cases have been properly examined by committing magistrates should not be immediately placed upon their trial. It is doubtful if any very convincing arguments in favor of retaining the grand jury for the purpose of indicting ordinary offenders can be advanced. That it should be continued for the purposes of investigation, with power of indictment, to be summoned when the need thereof arises, is indisputable. But the original necessity for the grand jury has disappeared with the onward march of the centuries.[26] In early days, when the influence of the crown threatened the liberties of the English freeman, and when judges and magistrates owed their positions to royal favor, it was often difficult if not impossible to secure the punishment of a criminal if he happened to be a retainer or under the protection of those in power. So, too, the defenceless subject might be accused of crime by an influential person and haled to the bar upon a baseless and malicious charge. Some barrier was needed between the powerful and the weak, and some tribunal before which the weak could accuse the powerful of their wrongs. This was supplied by the grand jury, which, ever changing its members and deliberating in secret, seemed well calculated to safeguard the people's liberties. But at present we need no such protection against a government of and by the people, and indeed such a body, deliberating secretly and hearing the evidence against an accused person without giving him the opportunity to be heard, seems strangely out of harmony with the spirit of our institutions. To-day, the grand jury, initiating a proceeding against a citizen who may be ignorant that he is even under suspicion, may be led to accuse him of some foul crime upon the mere _ex parte_ statement of malicious witnesses, without giving him an opportunity to explain or contradict the evidence. The mere charge of crime is often enough to ruin a man forever. The argument that a suspected person may escape before arrest unless the charge is considered secretly, has in these days of telegraphs, railroads and extradition treaties little of the force which it may have carried with it in cruder times. Moreover, the possibility of indicting public officials or others upon insufficient evidence for political purposes, or for "moral effect," would be done away with, and only those against whom legal testimony made the charge reasonably clear would be threatened with prosecution, and then only when their defence had been heard by a magistrate and held insufficient. Prosecutors now prefer to take as few cases before their grand juries in the first instance as possible, and to send the man with a grievance, who thinks he has some political pull and "wants to get the fellow indicted anyway," into the magistrate's court to make good his charge. Almost twenty-five per cent of the States in the Union have modified their procedure in this regard so as to conform to modern requirements. The State constitutions of Indiana, Illinois, Iowa, Nebraska, Oregon and Colorado give the legislatures the power to make laws dispensing with grand juries in any case, and in California, Connecticut, Kansas, Louisiana, Montana, South Dakota, Utah, Vermont, Wisconsin and Wyoming constitutional provisions exist permitting all criminal proceedings to be made by information, or dispensing with grand juries in certain cases. This is also true of the Federal Government. Experience has demonstrated that ample protection is afforded the accused where the State is permitted to prosecute those held to bail by an examining magistrate upon proof of probable cause. He is better protected than by a grand jury which hears in secret only the evidence against him and gives him no opportunity of explanation. A system which would allow of the prosecution of all felonies by information would do away with the great and practically useless labor of our grand jurors in the ordinary run of cases, would save endless time and money to all concerned, and might still retain the grand jury for such purposes as necessity requires. Justice would be more speedy and just as effective if the prosecution of all crimes were instituted before an examining magistrate, and the grand jury would then, at the summons of the court, meet to perform only those important and peculiar functions of investigation that are consonant with its dignity and necessary to the public weal. FOOTNOTES: [Footnote 24: Record illegible.] [Footnote 25: The historical development of the grand jury is highly interesting. Originally the assize at which the knights assembled was not unlike a sort of county parliament and all manner of matters were submitted to them. Gradually as the jury developed out of this unorderly gathering together, the sheriffs got into the habit of summoning only enough men to form the grand jury and as many petty juries (when those came into existence) as might be needed. In the beginning private vengeance was the moving cause of all criminal procedure. The aggrieved party made a direct appeal to the county and the issue was fought out, the complainant and defendant appearing in person or by champions. This was exceedingly unsatisfactory for many reasons, among others that not seldom a rich man would hire all the champions within reaching distance and the poor man be left without any, which suggests the somewhat similar practice of many wealthy litigants at the present day. But this mode of individual redress colored all English procedure and is the direct cause which makes English criminal trials in so many ways resemble private litigation. Private vengeance was at the bottom of it. When the "county" or the public were the accusers, a mere accusation was practically equivalent to a conviction subject to the chance of the defendant's escaping by a favorable termination of "the ordeal of water." But "the ordeal" in time died out, just as did wager of battle, and something had to take its place. This was the jury. From very early times we find "grand" or "accusing" juries presenting charges for the trial jury to dispose of, although the accusing jury frequently acted as trial jury as well. By 1212 it had become customary to submit a charge found by a presenting jury to a larger combination jury which included the original body which had presented the charge. This enlarged jury, usually composed of a jury from another "hundred" and "the four vills," delivered a unanimous verdict. By 1300 it had begun to be the privilege of an accused to "challenge" those who had presented the charge against him, but it was the approved practice to try an accused by some at least of those who had presented him. "The four knights were called, who came to the bar girt with swords (above their garments) and were charged--to choose twelve knights girt with swords for themselves and the others--and the justices ordered the parties to go with the knights into a chamber to choose or to declare their challenges of the others chosen by the four, for after the return of the panel so made by the four knights the parties shall have no challenge to panel or polls before the justices." (1406) Y.B. 7 H. IV, 20, 28. The idea seemed to be that unless there were a few on the jury who had already formed a provisional opinion as to his guilt the prosecution would not have a fair chance. In Willoughby's case in 1340, Parning, J. naively remarked, "In such case the inquest should be taken by the indictors (the accusors) and others. Certainly if the indictors be not there _it is not well for the King_." In 1351 by St. 25 Edw. III, c. 3, it was enacted that "no indictor be put on an inquest upon the deliverance of one indicted for trespass or felony, if he be challenged for this cause by the party indicted." Persons "presented" or accused could "put themselves" upon different counties, that is to say, could submit their case to juries drawn from such counties, with certain limitations, as they might elect. Thus we find a case where one having been "presented" by an accusing jury "puts himself on the County of Surrey and on all men in England who know him." At Easter came riding twenty-four knights from Surrey at the king's summons who promptly found him to be a robber, and, says the record, "Since he put himself upon these, _let him be hanged_." There is a criminal case in Y.B. 30 & 31 Edw. I, 528, which throws a good light on the procedure of the time. W. was the stabler of J.'s horse and had been kicked, while trying to mount, so that he died. The horse thereupon became forfeit to the king as a _deodand_. The jury accused J. of keeping the horse in spite of this and also charged him with having buried W. without calling in the coroner. This he denied and "put himself on the county." The judge, addressing the jury, which was probably the same that had made the accusation, charged as follows: "If W. died from the kick of the horse, the horse would be _deodand_. If not it would be John's. If the king should lose through you what rightly belongs to him, you would be perjured. If you should take away from John what is his, you would commit a mortal sin. Therefore, by the oath you have made, disclose and tell us the truth, whether the said W. died of the horse's kick or not. If you find that he did, tell us in whose hands is the _deodand_ horse and what he is worth; and whether the said W. was buried without a view of the coroner." All things considered--a pretty good charge. Gradually, and in large measure because the "ordeal" had disappeared and the grand jury as a distinct body had been fully established, no method of ascertaining the truth of an accusation was left, and a mere presentment in fact amounted to a conviction, so that the need of some other jury to pass upon the issue was apparent. Out of this need the modern petty jury developed. In course of time the accusing jury became as it is now, a distinct and separate body, deliberating secretly, its members being no longer permitted to sit as trial jurors. They acted on common report, their own personal information, and upon the application of injured parties, and initiated most criminal proceedings. It was necessary for some one to ferret out crime and hold the perpetrators for trial, and the jury did practically the whole business. As the years went on the jury became more and more a purely _ex parte_ accusing body with practically no judicial supervision and receiving about what it saw fit as evidence. From time to time the powers and the character of the grand jury has been fiercely assailed. Two centuries ago it came near receiving a knock-out blow, but it had become too firmly established. In Shaftsbury's case, 8 How. St. Tr. 759 (1681), they were in fact compelled to receive their evidence publicly in court, but their vigorous protests and the failure of the attempt left the body all the more securely entrenched in English procedure.--_Condensation from Prof. J.B. Thayer's masterly chapter on "Trial by Jury and Its Development" in his "Preliminary Treatise on the Law of Evidence."_] [Footnote 26: Cf. "Reform in Criminal Procedure," H.W. Chapin, 7 Harvard Law Review 189.] CHAPTER VII THE LAW'S DELAYS "IF THE COOK SHOULD STEAL THE TEAPOT" "I would have her locked up and punished!" the reader undoubtedly exclaims as he notes our title. It is hardly likely, however, that he realizes the possible significance of such an undertaking. For the edification, therefore, of those who have cooks and teapots, and in order to be forewarned, if not fore-armed, let us suppose that the worthy Mr. Appleboy has not only the domestic necessary for our case, but also a family heirloom which is worth more than twenty-five dollars, the requisite value to make its abstraction, with felonious intent, grand larceny in the second degree. Mr. Appleboy, after a moderately hard day's work, has been for an hour at the club, and is now ascending his front steps. As he is about to place the key in the door, he observes his cook, Maria, making her exit from the area with some large object concealed beneath her shawl. A flash from the dying sun, setting over the elevated railroad tracks of Sixth Avenue, betrays a telltale protruding spout. Maria does not perceive her master, but the latter, being of an inquiring disposition, descends the steps and follows her down the street. She hurries along upon her journey until, reaching Eighth Avenue, she turns the corner and enters a pawnshop. Mr. Appleboy, puffing, follows hard, and opens the door just as Maria is in the act of receiving from the pawnbroker the sum of ten dollars. She has the money in one hand, the teapot in the other; she is caught _in flagrante delicto_, or, in the modern equivalent, "with the goods on." Maria shrieks and calls upon the saints. Appleboy, purple from his exertions, pounds the floor with his gold-headed cane and fiercely inquires what she means by going off with his silver teapot. In reply Maria falls on her knees, breaks into tears, and confesses her crime, offering no excuse, and suggesting no palliating circumstance. She implores his forgiveness, but Appleboy, righteously indignant, is obdurate. She could have stolen anything but his grandmother's teapot, and he would have overlooked it. The pawnbroker, who takes but a mild interest in the proceedings, merely seizes the opportunity to remove from the cook's unresisting fingers the roll of bills. Appleboy resolves to do his duty. He will set an example of good citizenship--he will have her arrested, locked up, and sent to prison. "Summon a policeman!" he cries to the indifferent pawnbroker. "Get one yourself!" replies the other. Appleboy starts for the door, keeping one eye on the prostrate Maria. Two blocks distant he sees a stalwart officer in the act of conversing affably with a street cleaner. At this moment an urchin notices Maria couchant upon the floor. An expansive grin takes possession of his features, and, placing his fingers to his mouth, he emits a shrill whistle. Instantly, like a flight of vultures, a small army of boys descend upon Appleboy, who now decides that the only way to procure the policeman is to shout for him. In his embarrassment he yells: "Stop thief! Stop thief! Police!" but the officer pays no attention. He is discussing Tommy Sullivan's chowder party of the night before. "Say, mister, I'll get the copper for ye," shouts some little fellow, and starts on a run up the avenue. A few follow him and quickly corral the officer, who, protesting, dawdles slowly in the direction of Mr. Appleboy, swinging his club, and apparently taking little interest in their remarks. Meantime, the pawnbroker has shut and locked the door. Maria, within, is still in a state of coma. The much-annoyed old gentleman is fast being surrounded by a dense throng of loafers, tradesmen, ladies of the neighborhood and pedestrians, while the street is blocked with vagrant cabs and grocery carts. He wishes he were at home in his comfortable library, but realizes that he is in for it now, and must stick it out. "Well, what do you want?" demands the officer, pushing his way through the crowd until he confronts the innocent cause of the disturbance. "What are yer makin' all this row about, and blockin' up the street fer?" "Maria, my cook, stole my silver teapot," answers Mr. Appleboy. "I caught her trying to sell it in _there_. I ask that you place her under arrest." "What's yer name?" asks the policeman. "Who are yer anyway?" The crowd cheers delightedly, for while the copper is not popular in the neighborhood, an old swell like this is "nuts" for everybody. "I am a citizen and a taxpayer," replies Mr. Appleboy stiffly, "and I insist upon your doing your duty and arresting this woman." "Aw, come on now and give us yer name," continues the officer. "You can't expec' me t'arrest a person unless I know who I'm doin' it fer. How do _I_ know yer ain't throwin' some game into me?" At this moment one of the boys shies a banana peel at Mr. Appleboy's tall hat. The latter, seeing his disadvantage, responds: "My name is Silas Appleboy, and I am a taxpayer and a freeholder. I demand that you arrest this woman." The policeman, somewhat impressed by the other's vehemence and the statement that he is a freeholder (the meaning of which the official naturally does not understand), inquires a little more genially where the lady is. "In that shop," replies her master. The crowd, with a whoop, rushes at the door, but the pawnbroker is standing inside in an attitude of defence. The policeman, closely followed by Appleboy, pushes his way through the mob, and raps loudly. "Stand back there, now," shouts the officer, waving his club. The small boys shrink back, leaving Appleboy in the centre of the ring. The pawnbroker opens the door. Maria is upon her knees, calling vaguely upon Heaven to defend her. The silver teapot reposes upon the counter. The officer grasps Maria roughly by the shoulder and yanks her to her feet. "Get up there and pull yerself together!" he exclaims. "What's yer name?" "Me name is Maria Holohan," she replies hysterically. "Do yer know that man?" continues the officer, pointing at Appleboy. "Shure, I know him," is the answer. "Haven't I worked for him for fourteen years?" "Did you steal his teapot?" asked the officer. "Oh, Holy Mother! Holy Mother!" wails Maria. "I took a dhrop too much, an' shure I didn't know what I was doin' at all, at all." "Well, the first thing you'll do," remarks the officer, "'ll be to walk to the house. Come on, now!" And forthwith he drags Maria to the door, and, holding her firmly by the wrist, marches her upon the sidewalk. Mr. Appleboy, the teapot clasped to his bosom, follows immediately behind. Their appearance is greeted with vociferous approval by the waiting crowd, who fall in and escort the group towards the police station. But Maria's strength fails her, and, presently, with a groan she collapses. Perhaps the drop too much has taken effect in her legs. At all events, despite the efforts of the officer, she refuses to move, and remains limp. The crowd has now become so dense as entirely to obstruct all traffic in the street, long lines of electric cars leading in each direction up the avenue, motor-men and conductors forming a strong adjunct to those giving gratuitous advice. Two grocery wagons get their wheels locked in the throng. Some one telephones to the station house. At last the distant clanging of the patrol is heard. The crowd scatters, the carts and cabs extricate themselves, and the "hurry-up wagon" backs to the sidewalk with a flourish, two more coppers swinging on behind. They bundle Maria unceremoniously inside, escort her erstwhile employer with hardly more courtesy into the same vehicle, and toss in the teapot: the gong rings: and Mr. Appleboy starts upon his task of bringing an evil-doer to justice, and proving himself worthy of the proud title of citizen. The drive to the station seems hours long, and the fumes of whiskey are very evident upon Maria. The officers are taciturn. The nose has been knocked off the teapot. Mr. Appleboy, holding himself tense in his seat, endeavors not to be jostled against the lady who has, previously, cooked his meals. Now and again she addresses him in no complimentary terms. She has by this time reached the belligerent stage, although she has no thought of denying her guilt. The wagon draws up with a jerk in front of the precinct station house. Into a second crowd of gamins and loafers, Appleboy, still clutching the noseless teapot, emerges. He is followed by two policemen, half carrying, half supporting Maria. The doorman allows the party to enter, while repelling the inquisitive throng who would like to accompany them. Once inside, Maria and her master, little distinction being made between them, are brought before the sergeant, who reclines behind a desk upon an elevated platform. This official interrogates Mr. Appleboy somewhat brusquely as to his name, address and the charge which he makes against the defendant, laboriously copying the answers in the "blotter." Maria, petrified with terror, absolutely refuses to answer any questions, and mutters incoherently to herself. The sergeant, satisfied of Mr. Appleboy's respectability by reason of his highly polished hat and gold-headed cane, commits the prisoner to a cell to await the hearing before the magistrate on the following morning. As the charge is one of felony, and as none of her friends as yet know of her detention or arrest, the question of her release upon bail does not arise, and after the sergeant has directed Mr. Appleboy to attend at the nearest police court the next morning at half-past eight punctually, that gentleman escapes down the steps of the precinct house, feeling that he has lived through untold ages of misery. The crowd cheers him as he descends, and he hastens homeward, the joy of release tempered only by the prospective agony of the morrow. The noseless teapot remains in the custody of the sergeant at the station house. We can imagine Appleboy telling the story to his wife and children. How heroically he figures in his own account of the proceedings! How picturesquely penitent is Maria! How dramatic her capture in the very act of disposing of the stolen property! How the policemen cower at the majestic Appleboy's approach! By the time the old fellow has taken his coffee and lighted his perfecto he is almost restored to his former condition of pompous dignity. His intention to vindicate his position as a freeholder and to see that the law shall take its course is revived, and he dreams of Maria hurtling through the abyss with dozens of silver teapots tied about her ample neck. DELAY THE FIRST The next morning Appleboy orders his carriage and drives in state to the police court. His tall hat secures him easy access to a long room with a low ceiling, in which the air is full of strange odors. Across the end of the court, two-thirds of the way towards the front, stretches an iron grating through which a gate admits police officers, local politicians, lawyers and the witnesses in any examination actually in progress. He enters the room exactly at eight-thirty. Already it is crowded, and, having no business inside the gate, he is forced to sit upon a bench in company with various friends of the divers defendants who have been committed during the night. It is early as yet, and a substantial breakfast has put Mr. Appleboy in an optimistic frame of mind. Once the judge arrives how quickly the case will be disposed of and our hero receive the thanks of the magistrate for acting as he has done! But alas! Already a long file of officers is forming at the left of the desk behind the grating. Each officer has located at a safe distance one or more "drunks" or "disorderlies" whom he has gathered in during the preceding evening, and who have spent the night in the station house. The officers have recently come off post and now are waiting sleepily for the arrival of the magistrate to dispose of "The Watch." By a quarter to nine the line has reached immense proportions. Twenty officers stand in single file and the procession of prisoners reaches to the doorway of the cells. In the meantime the jam in the room itself has become greater, and the heat and odors more oppressive. Mr. Appleboy wipes his brow with his silk handkerchief. He wishes he had brought his wife's smelling salts. Presently he discerns amid the crowd inside the railing the now familiar features of Pat, the officer, who beckons him to come within. Our friend rises to his feet to obey, but instantly another officer bawls: "Sit down there, you!" and Appleboy collapses. "Hi, there, Rounds, let that old guy in, will ye?" asks Pat good-naturedly. The roundsman condescendingly nods to the grizzled guardian of the gate, who holds it open just wide enough to allow our hero to squeeze through. "Mornin'," remarks Pat, chewing vigorously. "Good-morning, officer," replies Appleboy. "Where is the prisoner?" "She came in the wagon half an hour ago," says Pat. "Step up while he makes out the complaint. After that we'll arrange her." So Pat and his complainant join the mob which is besieging the clerk's desk, and finally secure enough of that functionary's scattered attention to induce him to draw up a brief statement of the facts in the case. Pat disappears into the cells to emerge in a few minutes, escorting the bewildered Maria. She is then "arranged," which in police parlance is to say she is arraigned. She has no counsel, and evidently supposes her interrogator to be the judge, for she insists on addressing him as "Yer onner." The clerk briefly warns her of her rights and puts the few necessary questions, which Maria answers in a quavering voice. It is obvious that she expects to be at once deported to Sing Sing or the "Island." "Name?" "Maria Holohan, yer onner." "Address?" "Two East Seventy-first Strate, yer onner, wid this man here." (Indicating Appleboy.) "Occupation?" "Shure, 'tis his cook, Oi am." ("Housework" puts down the clerk.) "How long have you lived at this last address?" "Fourteen year, yer onner, come St. Michael's Day." "What have you to say, if anything, relative to the charge against you?" (Maria mutters incoherently) "Shure Oi took the taypot, all right, all right." "Guilty?" asks the clerk. "Guilty," whispers Maria. "That's all," says the other. "Stand back there and give some one else a chance." Pat, holding the papers in his hands, escorts Maria to the end of the line, and Appleboy returns to his seat. In his deposition he has stated that his occupation is that of "Bank President" and he has instantly observed a change of attitude in those about him. "Rounds" even expels two unsavory characters for the purpose of making room for him in the front row. In a moment more the judge enters hurriedly, takes his seat at the desk, and begins rapidly to dispose of the file of prisoners before him. One after another the officers press forward, make a brief statement of the circumstances of the arrest, and the prisoner is led away with a fine, a lecture, or a sentence of a few days in the workhouse. There is no opportunity for other cases until all the "disorderlies" and street-walkers have been dealt with. Half-past nine comes, quarter of ten and ten o'clock, the hour at which Mr. Appleboy usually makes a leisurely descent to his office, but still there is no respite. The monotonous business continues. But Mr. Appleboy's time is valuable, and he begins to fume and fidget. He thinks of the dollars he is losing by performing his duty as a citizen. Pat has gradually neared the desk. At length there is but one more case to be heard, and the "Rounds" summons our hero once more inside. Maria is thrust in front of the platform and stands with her hands on the rail. It has seemed an easy thing to Mr. Appleboy for a complainant to tell his story, and he has smiled scornfully to himself at the wandering and unconvincing statements he has heard during the morning, but as he is pushed upon the platform under the sharp eye of the magistrate, his courage begins to ooze out of him. He wishes again for the hundredth time he had let Maria go off with the old teapot. The very thought of tea sickens him. "Next," calls the "Rounds," as a dowdy young woman is led away, weeping hysterically. Pat hands up the papers. "Maria Holohan," mutters the judge, running his eye over the "information." "Stole a teapot,--um--um--Is this the defendant?" "He indentifies her," answers Pat. The judge turns to Appleboy. "Are you the complainant?" he asks briskly. "Y-e-e-s," answers our hero, "I am. This is my cook." "That will do," says the magistrate. "Answer only the questions that are put to you. Do you swear that the statements contained in this complaint are the truth, the whole truth, and nothing but the truth, so help you, God?" "I do," replies Appleboy with vigor. Luckily for Appleboy, no lawyer appears for the delinquent Maria. Unfamiliar with all the vagaries and devices of the criminal law, this lady, realizing that she has been caught red-handed, foolishly supposes that there is nothing for her to do but to cry for forgiveness and beg for mercy. "Do you desire counsel?" asks the judge. Maria stares vaguely. "Have ye got a lawyer?" interprets the nearest copper. "Don't want no lawyer!" snaps Maria. "I see you plead guilty," says the judge. "Shure," she answers. "Well," says the magistrate, "as she pleads guilty, I will not detain you further. Your cook, eh? Well, well, it's too bad! Why will they do such things? I am glad you did not lose the teapot. That is all." Maria is led away, while Mr. Appleboy descends from the platform, to be followed by some other righteously indignant complainant. The whole transaction has occupied less than a minute and a half. In order to accomplish it, Mr. Appleboy has remained in court from half-past eight in the morning until a quarter to twelve. "Thank goodness," he says to himself, "it is all over now. The rest will be plain sailing." Ah, how little do the Appleboys know of the administration of criminal justice! Pat accompanies him to his carriage, expressing regret that the matter could not have been disposed of more speedily. Appleboy is not ungenerous. He always tips the colored porter in the sleeping-car most liberally, but although it is obvious, possibly, that Pat would like a drink and some cigars, Appleboy, believing that by accommodating him he would be committing a felony or, at least, a misdemeanor, coldly bids him good-afternoon, and Patrick, crestfallen, returns to the precinct house. Meanwhile the magistrate fixes bail for Maria at five hundred dollars, and the teapot is tagged and returned to the custody of the sergeant at the station. Tired out, but feeling that "a duty well performed is a rainbow to the heart," Mr. Appleboy seeks the bosom of his family. DELAY THE SECOND Cookless, the Appleboys struggle through the following week. It is in the height of the season and cooks are scarce; they are also ill-tempered; and in five days Mrs. Appleboy has tried and dismissed three. The family, dinnerless, nightly seek a neighboring restaurant, and endeavor to console themselves with the theatre. But after the fourth night this bores them. They begin to long for Maria's omelets and Irish stew. After fourteen years one gets used to a particular kind of pudding. "I almost wish," said Appleboy to his wife when they are alone, "that I had not done anything about Maria, but just let her come back and cook for us. I don't think she would have tried to steal the teapot a second time." "But how do you know, Silas?" replies his wife. "Think of the orgies that may have been going on in the kitchen in the last fourteen years!" "True, true," answers Appleboy, and again renews his determination to see the thing through to the bitter end. Then Mr. Appleboy receives at his office a green slip calling for his attendance on the morrow before the grand jury of the County of New York, promptly at ten o'clock. He has never been to the Criminal Courts building in his life. He only supposes vaguely that it is situated somewhere near the "wholesale district" and not far from the Italian quarter. He associates it with trips to Chinatown, the East Side and the Bowery. After being thoroughly shaken up by a long journey over the cobblestones in his carriage, Mr. Appleboy finds himself on Franklin Street, between the Tombs, on the one hand, and the Criminal Courts building upon the other. Over his head runs "The Bridge of Sighs." A congregation of loafers, lawyers, runners, policemen and reporters linger upon the sidewalk. Unfamiliar with the means of entrance and exit, Appleboy turns the corner and climbs two long flights of stone steps upon the outside of the building instead of utilizing the side entrance upon the ground floor and taking the elevator. He enters an enormous hall around which, on all four sides, corridors reach to the top of the building. A motley collection of people are hurrying hither and thither. After some difficulty, Appleboy discovers a lift packed with odoriferous Italians, men with bandaged eyes and faces, small, half-clad children, and divers persons smoking enormous, evil-smelling cigars, whom he later discovers to be members of the legal profession. The car stops at the third floor. "District attorney and grand jury," calls the elevator man. "Grand jury to the right." Appleboy gets off with the rest of the mob, and wanders down a narrow corridor past rows of offices, until he comes to a policeman standing by the door of a small room crowded with people. There is hardly space to breathe, much less to sit down. From time to time a bell jingles in the distance, a door into another room opens, somebody comes out, and an officer calls out a name. Its owner hastily responds, is shot through the door into the other room, and the door closes again. This process goes on interminably. In a corner, clerks separated by a railing are busily engaged in making out subpoenas and filling in certificates of attendance. Police officers are everywhere. Appleboy takes his stand by the door. It is half-past ten o'clock. He has no means of knowing when he will be summoned before the august body who are deliberating in the next room. He has a craving to smoke, although he makes it a rule never to do so before six o'clock in the afternoon. He has left his newspaper at home, and has yielded up his subpoena to the officer at the door. There is nothing to occupy his attention except the sour visages of those about him. They belong to a class of people who instinctively fill him with disgust, being representatives of what Appleboy and his wife are accustomed to term the "masses." Person after person is summoned into the other room, but no one seems to want the banker. Pat is there, to be sure, but he is at his usual pastime, enjoying the delights of mastication. He no longer has any "use" for Appleboy. At about a quarter-past eleven, the officer beside the outer door calls the name of Silas Appleboy. Our hero, believing that at last his turn has arrived, starts from his seat, only to be directed to "Come here!" by the officer. He discovers that he has been summoned to confer with a representative of the district attorney, who invites him into a neighboring office. "Mr. Appleboy," says this young gentleman when the two are comfortably seated, "I see by the papers in the case that a Maria Holohan stole a teapot from you. Under what circumstances was the theft committed?" Mr. Appleboy, who supposes that the merits of his case have been long since known personally to the district attorney, commences at the beginning and rehearses all his woes and difficulties. The assistant listens courteously, and then, without comment, bows Appleboy out, who returns once more to the ante-chamber of the grand jury. His seat has, meanwhile, been usurped by a corpulent lady in deep mourning, and its former occupant is forced to stand in the corridor for an hour longer. During this period he perchance has the annoyance of hearing Pat remark to a fellow officer in no uncertain tones that "the old guy is no good--a 'dead one'--I didn't even get a smoke off him." The ante-chamber gradually has been thinning out. Finally Appleboy gets a seat. The bell keeps on ringing until only he and a man with a broken nose are left. At last a policeman hurries out of the open door, the bell rings again, and the clerk at the desk shouts "Appleboy! Appleboy!" Appleboy arises. "Right in through that door," directs the clerk, and Mr. Appleboy, shrinking, enters timidly the chamber of horrors and finds himself in the centre of a semi-circle of gentlemen of varying ages and appearance. To Appleboy a thousand eyes seem peering at him from every side. The silence is appalling. He stands, silk hat in hand, feeling like a very small boy who has been called before the head master to be punished for some offence. A man in the middle of the semi-circle and directly in front of him, is scratching busily with his pen. The grand jurors whisper among themselves. Presently the foreman looks up, observes Appleboy standing, and remarks: "Sit down, sir." Mr. Appleboy sinks into a chair beside the stenographer. The foreman glances at the indictment already prepared, and then says sharply: "Stand up, sir,--and be sworn!" A Bible is forced into his unenthusiastic hand. "You do solemnly swear the evidence you shall give to the Grand Inquest upon the complaint against Maria Holohan shall be the truth, the whole truth, and nothing but the truth: So help you, God!" Mr. Appleboy replies faintly: "I do," and makes an ineffectual attempt to kiss the Bible. "Sit down!" directs his interlocutor. "Ahem! You had a teapot worth over fifty dollars, and your cook stole it? Did you see her?" "Yes," answers Appleboy, and in a few words describes the occurrence. The foreman sweeps the grand jury with his eye. "Any questions?" he asks. There is no response from the others. "That is all, sir," says the foreman. "I see that the woman pleaded guilty in the police court. Good-morning." Appleboy takes his hat and retires. Two hours' wait for an examination occupying thirty seconds! He has heard of the "law's delays," now he knows what they are. The bell rings again as he is making his way out into the corridor, and the man with the broken nose stumbles in through the door by which our friend has made his exit. DELAY THE THIRD Mr. Appleboy now believes that his troubles are over, for he has consulted his family lawyer in order to make sure that everything is all right, and has learned that since Maria has pleaded guilty in the police court, she will, after her indictment, undoubtedly do likewise in the General Sessions. Two days later Appleboy receives a subpoena to attend in "Part I of the Court of General Sessions of the Peace" as complainant in the case of "The People of the State of New York against Maria Holohan." Down he goes and sits for a full hour in an ice-cold court-room which is thronged with policemen, irate complainants, and sympathizing friends of the defendants, until, among the line of bedraggled prisoners, who are brought in batches of from four to six from the Tombs through a little door in the back of the room, he recognizes the erstwhile queen of his kitchen--Maria, the unapproachable. She looks much the worse for wear. The feathers of her hat hang disconsolate. In addition she is minus her collar and goes clumping around the room after the policeman as if she had never broiled a lobster or tossed a flapjack. As she turns the corner by the jury box she spies her lawyer, and immediately brightens. They hold an animated conversation in whispers as he takes his place beside her at the bar. "Maria Holohan," says the clerk severely, "you have been indicted by the grand jury for grand larceny in the first degree. Do you plead guilty or not guilty?" Appleboy starts from his seat almost ready to call out in explanation: "She pleads guilty, your honor," but before he has an opportunity to do so, or to suffer any of the uncomfortable consequences of such an act, the weazened-faced little attorney representing Maria responds sharply: "Not guilty." Appleboy is stunned. Why, the woman has already confessed her guilt, after having been caught in the act! What absurdity! What nonsense! But the plea is taken; the lawyer asks that a date be set for trial not nearer than a week on the ground that he may conclude upon investigation to advise his client to change her plea, and because he has a witness living outside the State; and the court grants this application. Not guilty! As Maria tramps out in company with other defendants, Appleboy makes up his mind that he will see what all this means, and steps forward through the gate to speak in person to the representative of the district attorney. A hand is laid upon his shoulder, and he is hauled back unceremoniously. "Here! Where are you going?" "I want to speak to the district attorney," he replies meekly. "Sit down," replies the officer. "He can't speak to you now. Look him up in his office after court adjourns." Mr. Appleboy, chastened by experience, makes no protest and retires from the room. He has lost too much money already by absence from his office to make it worth his while to wait until the adjournment of the court, so he goes down town to attend to his business, and at the first opportunity calls up his attorney to inquire what it all means. The lawyer responds briefly that the mere fact that the defendant has pleaded guilty in the police court does not preclude her from changing her mind and denying her guilt later when called upon to plead to an indictment. He regrets the inconvenience to which his client has been put, and suggests by implication that it would have been well if Mr. Appleboy had consulted him before taking any action in the matter. Appleboy has already come to this conclusion himself. DELAY THE FOURTH A week later Appleboy receives another subpoena which commands him under penalty to call at the district attorney's office at half after ten o'clock and "Ask to see" Mr. John Smith, whom he finds, after some difficulty, in a little office in the same building and corridor through which he passed when he appeared before the grand jury. "Is this Mr. Smith?" he inquires. "Yes," answers the young man. "What do you want?" "I have a subpoena," replies the other, "to see you this morning." "Oh, yes, I remember," remarks the assistant. "You're in the Holohan case, aren't you? Woman stole your teapot, didn't she?" "Yes," mutters Mr. Appleboy, "she did, some time ago. What can I do for you?" "Well, I want you to tell me about the case," mildly explains the assistant. "Who's Maria Holohan, anyway?" So Appleboy begins at the beginning and tells the whole story through, while, from time to time, the assistant laughs softly to himself. When the history is concluded, the young man leans back in his chair, blows a ring of smoke towards the ceiling and exclaims: "That's always the way! Some miserable little shyster gets hold of 'em in the Tombs and swears that he can get 'em off, no matter how plain the facts are, or even if they have pleaded guilty in the police court. Well, I'll make a note of the case, and when it comes up for trial you'll get a subpoena. Sorry to have had to bother you. Good-morning!" DELAY THE FIFTH Appleboy departs. Three days later he gets another subpoena to appear before the Court of General Sessions. When the case is called, however, Maria's lawyer gets up and moves for an inspection of the grand jury minutes upon the ground that there was not sufficient evidence before that body to warrant the finding of an indictment. The judge denies this motion peremptorily, since there has already been a hearing in the police court. Upon this the attorney states that he is actually engaged in a trial of another action elsewhere. The case therefore "goes over," of necessity. Nearly three weeks have now elapsed since the theft. Presently Appleboy gets another subpoena. He trots down to court half an hour before the opening. The case is marked "Ready." He is told to remain in court, but some other case is already on trial, having lasted over from the day before, and at noon it is still in full swing. The court adjourns for an hour, from one to two. Appleboy returns obediently at that time, but the case which was on trial in the morning continues throughout the entire afternoon. He departs at four o'clock, furious. Next morning he is dragged down again. This time, however, the case against Holohan is adjourned without date, owing to the fact that Maria's counsel has applied to the court for a commission to take testimony in Boston. They intimate that they may interpose the defence of insanity, or at least dipsomania, and evince an unaccountable eagerness to examine Maria's great aunt, who is acting as general housework girl for a minister's family in Roxbury, Mass. The district attorney strenuously opposes this motion. The judge, however, "takes the papers," as he is obliged to assume that the request is made in good faith. DELAY THE SIXTH Appleboy hears nothing of the case for another week. At the end of that time he gets a subpoena of a different color, and again journeys down to court. But this time he first seeks out Smith in his office and asks if there is any likelihood of the case being tried that day. Mr. Smith, whose room is thronged with witnesses, tells Mr. Appleboy that he is no longer assigned to that part of the General Sessions on whose calendar the case appears, and that another assistant, Mr. Jones, will have to try the case. He therefore conducts Mr. Appleboy to an adjoining office and presents him to Jones. The latter receives Appleboy courteously and assures him that he will try the Holohan case the very first of all. They talk the matter over and unite in their objurgations against defendants' lawyers in general. Jones, however, is confident that this time they will succeed in disposing of the matter. They adjourn together to the court-room. But on the call of the calendar Maria's lawyer claims that one of his most material witnesses is absent, and that without him his client's interests would be jeopardized. The judge, who by this time has correctly gauged the situation, nevertheless directs him to go on with the case. The lawyer then states that he has had a bad night and feels very unwell. The judge continues unsympathetic. The assistant is openly skeptical. The attorney thereupon is suddenly taken with great pain and retires for air to the corridor outside the court-room. Nothing can be done. Perhaps the lawyer really has a pain. The assistant shrugs his shoulders and announces that he will move the case of Michael Angelo Spaghetti, indicted for assault; the defendant is ordered to the bar, and the court directs the clerk to announce that "no other case will be tried" that day. Appleboy drags himself with the rest of the throng through the door into the corridor. This is the third time he has practically given up an entire morning to appearing as complainant in a case which seems fated never to be tried. He goes downstairs swearing vengeance against Maria and her lawyer. This performance is repeated possibly some four or five times more with variations. But he never gets nearer than having the case marked "ready," and something always intervenes, Maria's lawyer exhibiting an almost supernatural cleverness in the invention of excuses. On all these occasions, while awaiting the call of the calendar, Appleboy is likely to sit in close proximity to the defendant, who has been released on bail pending her trial, and who casts withering glances in his direction. Her brother Terence also seizes the opportunity presented by the various adjournments to tell Appleboy what he thinks of him and what he intends to do to him after the case has been disposed of. The district attorney has done everything in his power to force the defence to trial, but his every attempt has been unavailing. Nevertheless, Appleboy blames him personally for every idiosyncrasy of the law and for every delay procured by the defence. DELAY THE SEVENTH It was now the end of June. Mr. Appleboy has planned to take his family abroad, but, although the annual adjournment of court for vacation is at hand, through the dilatory tactics of Maria's pettifogging counsel, the case is still untried. Appleboy had been in attendance at court eleven separate times, but the only satisfaction which he receives is the assurance that he will be paid fifty cents for each one of his subpoenas. He is by this time so disgusted with the whole business and has taken such a fierce dislike to all judges, district attorneys, policemen and lawyers, that he would long ago have thrown up the case had it not been for the fact that he has a vague idea that in so doing he might be compounding a felony. His desire to set an example as a model citizen has long since evaporated. Countless members of the Holohan family beset him at home and at the office, beseeching him for clemency. It is possible that without consulting the district attorney, and under the assumption that he must remain at hand as a witness, he gives up Europe and takes a house on the mosquito coast instead. His wife is very unpleasant about it. She hints that Appleboy need not have been so vindictive in the first place. After he has cancelled his passage, and the whole family are safely ensconced for the summer, Appleboy discovers that cases in which the defendants have been released upon bail are not tried during July, August, and September. Appleboy's feeling can be easily imagined. It is needless to say that he does not impart the information to his lady. The summer proves generally unsatisfactory. The visits of Maria's family and their efforts to persuade him not to prosecute are redoubled. Most of them are domestics on their evenings "out," plentiful of tears and reproaches. It is impossible to escape them. He also receives numerous letters from the lady's attorney suggesting that he call at the latter's office. These he has systematically ignored. DELAY THE EIGHTH October comes. The family return. Once more the familiar subpoena is served upon our hero at his office. At the sight of it he scowls fiercely as he watches the white smoke sailing up the air shaft into the azure of the sky. It is a beautiful autumn day. He recalls the police court, and the grand jury, the Criminal Courts building, the General Sessions, and Maria and Terence, and his miserable summer! Vestryman Appleboy mutters something very much resembling profanity. He thinks: "If I had not tried to punish that cook for stealing the teapot, why!--I might be spending to-day in Rome or Paris!" The next morning, however, finds him once more on his dreary way to court. He consults Jones again upstairs, who promises by all that is holy that nothing shall prevent a trial. The case is marked "Ready," without opposition, and the assistant district attorney moves the indictment. "Maria Holohan to the bar!" calls the clerk, as a jury is rapidly empanelled. Appleboy is exultant. He is to reap the reward of virtue and fidelity to principle. At last the criminal is to be made to pay the penalty. He looks eagerly for Maria. "Holohan! Maria Holohan!" reiterates the clerk. But Maria comes not. "Call her in the corridor," directs the judge to the officer at the door. There is a sudden silence in the court-room. No response is heard outside. The assistant district attorney says something to the judge, who nods to the clerk. "Maria Holohan, come forth and answer pursuant to the terms of your recognizance or your recognizance will be forfeited," shouts that official. There is no reply. "Terence Holohan, bring forth Maria Holohan, for whom you are bound pursuant to the terms of your recognizance, or your recognizance will be forfeited," solemnly intones the clerk. Terence arises and comes slowly forward from where he has been sitting. "Are you the bondsman in this case?" asks the clerk. "Oi am!" replies Terence. "Where is the defendant?" Terence looked sheepish. "Where is the defendant?" repeats the clerk sharply. "In Ireland! Bad cess to her!" answers Terence. "And divil a bit can Oi bring her forth," he murmurs, "whin she's in the ould country!" "Forfeit the bail!" orders the judge. Appleboy grasps the arm of the assistant. "What's the trouble?" he asks anxiously. "She's skipped!" answers the other with a grim laugh. "That's all." "H--l!--I mean, thank God!" exclaims Vestryman Appleboy. This, gentle reader, is what _might_ happen to you if your cook should steal the teapot. CHAPTER VIII RED TAPE Mr. Appleboy makes his way from the court-room to the corridor of the Criminal Courts building a sadder, wiser and more chastened member of society. He now has personal knowledge of the way in which our criminal laws are enforced and some idea of the administration of criminal justice in general in New York City. He has been dragged down to the Criminal Courts building, to the district attorney's office, the grand jury room, and the General Sessions not less than a dozen times, and he now takes a solemn vow that never, if he can possibly avoid it, will he be prevailed upon to go there again. Our defeated hero on reaching home finds Mrs. Appleboy waiting luncheon for him. "Well, Silas," she inquires, "has that woman been convicted at last?" Her husband laughs somewhat shamefacedly. "No; I'm afraid she has gotten the best of us," he replies, unfolding his napkin and beaming pleasantly upon his better half. "The fact is that she has skipped her bail--gone back to Ireland." "What!" returns Mrs. Appleboy. "Do you mean to say that that woman has been allowed to get away after you have been doing nothing, apparently, for the last six months but spend your time in those miserable court-rooms down there? It's outrageous." "Oh, you can't help that," he replies, "so long as prisoners are admitted to bail--they have the sacred privilege, guaranteed under our Constitution, of running away." "Rubbish!" exclaims the lady. "And do you know," continues Appleboy, "it really is a tremendous relief to feel that I shall not have to take the witness stand and be cross-examined as to my past career by some miserable little shyster lawyer from the Tombs." "Why, Silas," interrupts his wife sharply, "what have you been doing that you are ashamed to tell of?" "Oh, I didn't mean that," he adds hastily, "but they ask such embarrassing questions; I might have to tell how much property I own, and then the tax collector would get after us." "Speaking of property," continues Mrs. Appleboy, "where's the teapot?" Appleboy gazes at her blankly. In the excitement attendant upon Maria's non-appearance in the court-room, the family heirloom had completely escaped his mind. "I forgot all about it," confesses Appleboy. "Silas!" cries his wife. "I should think that after all your experiences you would have had sense enough not to leave the Criminal Courts building without bringing that teapot with you. How do you know Maria hasn't taken it with her to Ireland?" "Oh, I'm sure she hasn't," answers her husband; "it's down at the police station; they tagged it, you know, and left it in the custody of the sergeant." "Well, hurry through your dinner," commands his wife, "and go right down and get it. I am surprised at you." Appleboy skips his usual demi-tasse and fragrant perfecto, the result of which omission is to leave him but half satisfied and with a feeling of incipient indigestion, and betakes himself as fast as possible to the police station, where he has last seen the teapot. Now the police station, as is a way with police stations, is located without any reference whatever to the conveniences of transportation, hence Vestryman Appleboy is obliged to walk some ten or twelve blocks towards the river after a heavy meal, and reaches his destination very much out of breath and in a distinctly ill humor. To his surprise the doorkeeper at once recalls him. "How are you, Mr. Appleboy? Come right in," says that functionary in greeting. "How do you do?" responds Appleboy. "I have come to get my teapot." "Ask the sergeant about it," directs the doorman. So Appleboy makes his way to the desk, where he is again recognized, this time by the sergeant on duty. "Well, Mr. Appleboy," remarks the sergeant, "what became of that cook of yours? She was a bad one! I hope they convicted her." "They did not," replies Mr. Appleboy; "they didn't even get a chance at her. She got away." "Jumped?" inquires the sergeant with a grin. "That's what she did," acknowledges Appleboy, "after she had kept me chasing up and down for nearly six months." "Oh, she was a sly one," answers the sergeant sympathetically. "A little vacation up the river would have done her good." "I suppose there's no objection to my having the teapot back, is there?" "Sure not," answers the sergeant. "It's yours, ain't it? Of course you can have it back." "Do you mind letting me have it then?" asks Appleboy. "Oh, we haven't got your teapot!" exclaims the sergeant. "That was handed over to the property clerk at Police Headquarters. I suppose when the case was set for trial the pot was sent down to the district attorney's office; he's probably got it locked up in his safe,--I mean whatever assistant was going to try the case." "Well, well," says Mr. Appleboy; "of course, I assumed it was right here, where I saw it last. What would you advise me to do?" "Better go right down and see the assistant district attorney," says the sergeant. "Skipped her bail, did she? Well, that's a pretty good one, too!" Although it is now three o'clock, Mr. Appleboy goes to the nearest elevated station and takes the train down town. This occupies about half an hour. He gets off at the corner of Franklin Street and walks to the Criminal Courts building. He is now thoroughly familiar with this lugubrious locality and finds the elevator without difficulty, ascending amid the usual odoriferous company to the floor upon which Mr. Smith, the assistant district attorney, has his office. Mr. Smith's door, however, is locked, and inquiry from a deaf attendant in a neighboring corridor elicits the fact that the assistant is engaged in trying a murder case in Part IV of the General Sessions. Appleboy now bethinks him of Jones and forthwith descends to the next tier of offices, but there finds to his chagrin that the latter also is trying a case. Determined not to be thwarted by any such trifling matter, our hero takes the elevator to the second floor of the building, upon which the court-rooms are located. He first applies at Part I. The superannuated attendant at the door eyes him sharply, asks him for a subpoena, and upon his failure to produce it denies him admittance. Appleboy, naturally indignant, inquires the reason. The watchdog at the door brusquely replies that persons having no business in the court-room are not permitted to enter. "But I want to speak to Mr. Jones." "Well, he can't see you now, anyhow," replies the doorkeeper. "It won't do you a particle of good to go in; he's right in the middle of summing up the case to the jury." This seems a sufficient excuse, even to our much-annoyed old gentleman, and he thereupon makes his way to the court-room in which he has been informed that Smith is disporting himself. Here he makes a second attempt to secure admission. On this occasion there is not even the question of a subpoena. No one can be admitted, because the judge is "charging the jury." The answer is definite and final. The doorkeeper, however, is a good-natured, genial, warm-hearted Irishman, and notes with some sympathy the disappointment and chagrin of the weary little old man. Appleboy observes the benignity of the other's expression and tenders a cigar,--not what is commonly known about the building as a "cigar" (six for a quarter) or even a "good cigar" (a ten-center), but a bang-up, A-1, twenty-five-cent Havana, with a gorgeous coat of many colors. Being very tired he lights another for himself. The two converse amicably. It now develops that the doorkeeper not only remembers Appleboy, but the case and the teapot, and finally, having become conversant with the entire situation, he pronounces judgment, namely, that Mr. Appleboy will find the teapot at the property clerk's office at Police Headquarters; that while it is possible that it might remain in the custody of one of the assistants, or in charge of the property clerk, attached to the district attorney's office, it is very unlikely that such is the case, since the defendant was never placed on trial. He therefore advises Appleboy to return with all haste to 300 Mulberry Street and secure the return of his property from the person there having it in charge. Appleboy is very much pleased; he begins to regard himself as quite a "mixer," while for a brief moment visions of running for mayor or perhaps for alderman hover in his mind; and after presenting the doorkeeper with a couple more Havanas he makes his way out of the building upon the Center Street side. Appleboy supposes, as is not unnatural, that Police Headquarters must be somewhere in the immediate neighborhood of the Criminal Courts building. A laborer, in response to his question, waves his hand in a northerly direction, and Appleboy sets out, traversing what seems to him to be an interminable distance. Every one whom he addresses states that Headquarters is just a block or two farther on. Soon he finds himself on Mulberry Street; swarms of little children congregate upon the sidewalk and pass comments upon his appearance; Italian ladies in faded négligée look down upon him from upper windows; bunches of macaroni in a half-solidified condition stream from frame-works erected in the areas, and Appleboy shudders as he thinks of the germs wafted down the side streets and from the open windows of the tenements which must, as he believes, collect and form a thick crust upon the surface of this unattractive variety of nutriment. From time to time he crosses the street for the purpose of avoiding a fight between small boys or a group of children dancing around an organ; occasionally he is obliged to walk in the middle of the street itself. After twenty minutes he comes in sight of an inhospitable-looking structure, which, he is informed by the peanut seller upon the corner, is that for which he seeks. "Polica Headquarta!" chatters the Italian and grins; he knows well enough what it is, and "many there be that go in thereat." Appleboy crosses the street and ascends the steps, meeting as he does so a squad of policemen who bang open the door and come marching down in pairs. He shrinks to one side, and then timidly makes his entry. An officer in the hall inquires his business. "I desire to see the property clerk," says Mr. Appleboy, "and to secure the return of a teapot which was stolen from me." "The property clerk's office closes at four o'clock," says the officer; "you'll have to come to-morrow morning, at nine." Appleboy is disgusted; he has spent what is practically an entire afternoon in the pursuit of his teapot and has accomplished nothing. "It's outrageous," he cries; "the idea of a public office closing at four o'clock in the afternoon! What do these fellows do, I would like to know, to earn their salary? Nine to four,--pooh! Why, it isn't half a day's work." The officer has turned on his heel and walks slowly away, leaving Mr. Appleboy fuming by the door. The corridor is musty and dark, its stone flagging worn by the tread of millions of heavily booted feet. Poor old Mr. Appleboy is very tired; the dingy windows, the gloomy corridor, the unsympathetic policeman, the noise and smells of the Italian quarter, the weary trip to the district attorney's office and to the station house have brought him almost to the verge of tears. He is ashamed to go home and tell his wife that he has accomplished nothing,--he has not even _seen_ the teapot. Feeling very small indeed Appleboy pushes open the door and passes out upon Mulberry Street. No one notices him; in this official world a bank president is but a unit among the countless multitudes of the public. He stumbles into a subway train, seeks sanctuary in his club and takes a Turkish bath. Let us pass over the painful scene upon the return of Appleboy teapotless. His lady is hardly to be blamed for showing irritation over her husband's failure to recover that interesting relic and valuable domestic adjunct. She knows she could have done much better herself. At any rate she would not now calmly return home from the court with the humiliating admission that the prisoner had escaped and that the teapot had disappeared. Things are very unpleasant that evening, and no suggestion on the part of Appleboy that they go to the theatre or the opera will bring a smile over the features of his irate spouse. The next morning Mr. Appleboy is up betimes. He does not wait for his wife to come down to breakfast, but pours himself a cup of coffee and snatches a roll at the sideboard. A quarter to nine finds him at Police Headquarters. In the clear morning sunshine the building does not look so repellent, and he trots up the steps, pushes open the door, and, avoiding his adversary of the afternoon before, saunters nonchalantly down the corridor until he sees a small door at the top of a couple of steps bearing the legend, "Property Clerk's Office." The property clerk, whoever he is, is already there. Appleboy finds himself in a small room divided by a wire grating; this has a small opening through which he is obliged to converse with the official in charge. "I have come to get a teapot which was stolen from me," explains Appleboy. "What is the state of the case?" inquires the property clerk. "The thief has forfeited his, I mean her, bail," replies our hero. "What was her name?" "Maria Holohan." "When did she steal the teapot?" "Last June." "Where did you last see the teapot?" asks the clerk. "At the station house, with a tag on it," Appleboy replies. "Well, what makes you think we have it?" asks the clerk. "Why, the policeman down at the court-room told me that you kept all the property which was retained as evidence," answers Appleboy. The clerk rapidly turns over the leaves in a large book. Evidently he finds what he is looking for and, nodding, answers: "Well, here's the record of the case. One silver teapot, value fifty. Officer making arrest, Patrick McGinnis. Prisoner's name, Maria Holohan. Claimant's name, Silas Appleboy. That's you, is it? Stolen property, teapot. Held for evidence, yes. There you are, and you say now she skipped her bail?" "Certainly," answers Appleboy. "And you want the teapot?" "Of course I do," answers Appleboy. "Well, first you have to get an order from the court to that effect," says the clerk. Appleboy almost loses his temper. Has he got to make another trip down to that miserable Criminal Courts building? "Look here," he exclaims rather angrily, "what is the sense of all this red tape? The case is over, I own the teapot,--why don't you give it to me and be done with it?" The clerk smiles,--a trifle condescendingly, thinks Appleboy. "My dear sir," he says, "are you aware that I have no means of knowing that you are the Silas Appleboy who owns this teapot, except your own say so?" "Isn't that enough?" shouts Appleboy. "It ought to be," responds the clerk, "but sometimes it isn't. I don't even know that the woman has skipped her bail." Appleboy begins to see the force of the clerk's argument. "I never imagined that a gentleman would be tossed about from pillar to post, as I have been since I lost that teapot. What is it you say I must do; get an order from the mayor?" "No, no,--the judge," answers the clerk. "How shall I get it?" inquires Appleboy rather huffily. "Oh, ask the assistant district attorney; he will probably get it for you." "Thank you," says Appleboy stiffly, and marches out. This time he takes the subway to Canal Street, reaching the Criminal Courts building a few moments after nine. Much to his surprise Mr. Smith is already down at his office hard at work. "Ah, Mr. Appleboy, good-morning to you," he exclaims. "How are you, Mr. Smith?" responds Appleboy. "I have come after that confounded teapot." "Oh, the one your cook stole. I remember it well. Where is it?" "At Police Headquarters," responds Appleboy, "and they want me to get an order from some judge or something before they will give it up to me." "That's easily managed," responds the assistant, "but you have to get a waiver from this office of any claim that we may have upon the teapot as evidence. There is a regular printed blank. I think, inasmuch as Jones was actually going to try the case when Maria skipped her bail, that he had better fill it out. After you get it, come back here and I'll make the application for you." Appleboy begins to feel better. Here is some one that knows his business. He lights a cigar and descends to the next floor, where he finds his old friend Jones. Jones is quite ready to give the desired waiver, and selects one from a pigeon-hole in his desk. He fills it out to read as follows: New York, October 7, 1907. District Attorney's Office, County of New York. The People of the State of } New York on the complaint } of } } For Grand Larceny Silas Appleboy } in the Second Degree against } Maria Holohan. } This office has no further use for the property taken from the defendant in this case, and now in the possession of the property clerk of the police department. No objection is therefore made by me to its delivery to any person who proves to your satisfaction his right to the possession of the same,--one silver teapot. A. BIRD, District Attorney. Per William Jones, D.A.D.A. To the Property Clerk of the Police Department, Borough of Manhattan, City of New York. "Now we'll go down and see if the judge will give us an order," says Jones. "Why, is there any doubt about it?" inquires Appleboy, fearful that perhaps after all he is going to lose his teapot. "It all depends on circumstances," answers Jones. "Some of the judges are perfectly willing to give orders while others are not. You see, the trouble in your case is that the woman has never been tried, so that the question of whether or not she stole your teapot has really not been decided at all." "The wicked flee--!" murmurs Appleboy in his most approved Friday evening manner. They take the elevator down to the second floor, and make their way to that part of the Sessions upon whose calendar Maria's case appeared at the time she forfeited her bail. A trial is going on, and a pompous little lawyer is cross-examining a stout lady who weeps and laughs hysterically by turns. As the lawyer pauses for breath Mr. Jones arises and addresses the court. "May it please your Honor, in the case of the People against Maria Holohan, charged with grand larceny, the bail in which was forfeited before your Honor about a week ago, I desire to apply for an order directing the property clerk at Police Headquarters to turn over the property, namely a silver teapot, to the complainant, who is here in court." "But the case has never been tried, you say, Mr. Jones," objects his Honor. "That is all very true," returns the assistant, "but the woman has run away, her bail has been forfeited, and judgment entered and satisfied." "Supposing, however, she were captured and brought back and tried, how do I know but that the jury might acquit her? And they might acquit her on the specific ground that the teapot belonged to her, and not to the defendant. I should then be in a position of having directed its return to a person to whom it did not belong." "Of course what your Honor says is entirely correct," answers Jones, "but it is unlikely that we shall ever hear of the case again." "I don't know about that," answers the judge. "Your office might become suddenly extremely energetic and try to extradite her." "Well, it seems rather hard on Mr. Appleboy," responds Jones. "Of course it's hard; he has my entire sympathy," replies the judge; "but I cannot take the responsibility of deciding who owns property in a case which has not been tried. I am not here for that purpose. Let him take the proper legal steps to secure the return of his property in the civil courts." Appleboy, who has understood very little of this colloquy, but who supposes that, for some entirely insufficient reason apparently, the judge is trying to block his efforts to secure the return of his property, suddenly jumps to his feet and shouts:-- "Look here, your Honor, I would like to have a word about this, if I may! That teapot of mine was stolen last June; I caught my cook in the very act of selling it to a pawnbroker; I had her arrested on the spot; she admitted her crime, and acknowledged her guilt in the police court. My teapot is tagged and locked up in a room at Police Headquarters, and they won't give it to me unless your Honor will grant an order directing them to do so. Kindly tell me what I am to do." The crowd in the court-room titters and the court attendant raps loudly with a paper-weight on the oaken railing for silence. The judge regards Mr. Appleboy good-naturedly. "I am very sorry you have had so much trouble. My position in the matter simply is that I cannot personally take the responsibility of deciding to whom this property belongs, particularly when no jury has ever passed upon the guilt or innocence of the defendant. I shall be very glad, however, to approve any certificate which the district attorney may choose to give you stating that he has no further need or use for the property." Appleboy brightens. "Your Honor," says he, "Mr. Jones has already given me such a certificate, and I shall be much obliged to you if you will approve it." Jones hands it to the judge, who writes the word "Approved" upon it, then returns it to the assistant. "You will observe," says his Honor, "that all I do in the matter is to approve the statement of the district attorney that he makes no objection to the delivery of the property to any person who proves to the satisfaction of the property clerk his right to the possession of the same. My approval really does not amount to anything at all. I cannot grant you a court order. I am aware that several of my associates might do so under exactly similar circumstances, but I personally do not care to assume any such responsibility. Proceed with the case on trial." Out in the corridor Appleboy inquires anxiously of Jones how on earth he is going to prove to the satisfaction of the property clerk his right to the possession of the teapot. "Oh, you won't have any difficulty at all," says Jones; "this certificate from us, with the judge's 'O.K.' on it, is equivalent to a court order, even if it is not one technically." "I don't know," answers Appleboy doubtfully; "this paper seems to leave it up to me to persuade the intelligence of the property clerk." "You won't have any trouble," laughs the assistant. "Good-by." Mr. Appleboy leaves the building once more, and again takes the subway to Police Headquarters. "Back again?" inquires the property clerk pleasantly. "I have a certificate from the district attorney, approved by the judge giving you permission to return the teapot to me," says Appleboy, shoving the paper through the wicket. The clerk takes it. "This isn't a court order," says he. "Still, if the woman has skipped her bail and the judgment has been satisfied, I guess we can take a chance and let you have your teapot, provided of course you are properly identified. You see, so far as we know, you may have picked this certificate up on the street. The thing for you to do is to get hold of the officer who made the arrest, and who knows all about the case, and have him identify you." "How shall I do that?" asks Appleboy, very much irritated. "I don't know where he is; I can't go chasing all over the City of New York after police officers; I'm sick of this whole business; you know perfectly well I am Silas Appleboy, else I shouldn't have this paper, and I shouldn't be around here trying to get that teapot." "Don't be too sure about that," replies the property clerk. "We have had three women here at the same time claiming the same pair of diamond earrings, and each woman looked absolutely respectable. One of them came in a carriage with a footman. We found out afterwards that the earrings didn't belong to any one of them, but to an entirely different person." Appleboy loses all patience. Just as he is about to place his hands upon the teapot, _presto_, it vanishes. Two Italians and a Chinaman, escorted by an officer, now elbow past Appleboy, who disconsolately gives them place. He is "up against it" again; there is no help for it; rules are rules and the law is the law. How now to find Patrick, the officer! He begins to wish he had been nicer to Patrick;--if he had been a little more liberal in the way of cigars at the time the teapot was stolen, things might have been very much easier for him now. He utters an imprecation under his breath against all policemen and police red tape. Grinding his teeth, he goes to the nearest telephone booth and asks to be connected with the precinct to which Patrick is attached. The operator refers him to 3100 Spring, namely, Headquarters,--but there he is informed that private citizens may not be connected with police stations. He hangs up the receiver with something almost like an oath, Poor Vestryman Appleboy! Let us not be too hard upon him. It is now half-past eleven o'clock. He takes the car uptown and returns to the station house, but the sergeant informs him that Patrick is down in the Criminal Courts building as a witness in a burglary case. This is the last straw. Frenzied, he rushes from the station house, takes another car and sits tensely until once more he is at the Criminal Courts building. Fortunately he has had the forethought to inquire of the sergeant to which of the four parts of the General Sessions Patrick has been subpoenaed, and he now finds that it is the same court-room at the door of which presides his friend of the day before. The doorkeeper greets him genially, and in response to Appleboy's inquiries replies, shure, that he knows Pat McGinnis;--that Pat has been there all the morning, but has just shtepped out over to Tom Foley's saloon. Although Appleboy has not been inside the portals of such a place since he was nineteen years old, he frantically inquires its direction, and, fearful lest he lose the object of his search, dashes across the street to the corner bar-room. The little old gentleman with the shining silk hat sticks his head timidly through the door and observes Patrick at the end of the bar crooking his elbow in the customary manner. He draws an inspiration from the sight; with a bland smile he steps up to the bar himself, slaps the officer familiarly on the back and, pulling off his gloves, remarks, "Well, Pat, old boy, how do you feel? Have another on me!" Patrick gazes at him open-mouthed. Can this be the stiff, little old bank president he knew six months ago? But there can be no question as to Appleboy's intention when he hears the latter order "two rye high-balls _and another-for-yourself_" of the astonished barkeeper. Appleboy toasts Patrick, Patrick toasts Appleboy. Patrick produces cigars; Appleboy replaces them with others, larger and thicker than any seen at Foley's. "By the way," says Appleboy, "step up to Police Headquarters with me, will you, Pat? Now that I happen to be down this way, I might as well take that teapot home with me, don't you know." "Shure," says Pat; "court's adjourned by this time, and I can get back by two o'clock all right." The best of friends, they go up in the subway together to Police Headquarters. With a bold front and fearless eye Appleboy enters the office of the property clerk, produces his certificate from the district attorney, and demands his teapot. "This officer will identify me," says he. "Shure I indentify him," announces Pat. The clerk takes the certificate, opens the record book and, with a rubber stamp, enters up on the back of the original report the words: "_Identified by officer_ _as owner of the property_." "Write your name there," says he to Patrick, and McGinnis laboriously scrawls his name between the lines. The clerk now disappears into an adjoining room, presently returning with an object about the size of a football, wrapped in coarse paper, tied with a multitude of strings and bearing a tag. "Here you are, sir," says he, opening the door in the wire grating and passing the football to Appleboy, whose heart beats wildly. The clerk then stamps the words "_Delivered on identification of officer_" upon his record book, closes the same with a slam and turns aside to other more important business. How simple it all is when you once know how to do it! "Easy, ain't it?" remarks Pat. "Easy as rolling off a log," answers Appleboy with a grim smile. CHAPTER IX THE TRIAL OF FELONIES It is a fact, which may at first appear paradoxical, that the jury in the ordinary run of criminal cases passes upon the guilt or innocence of very few professional criminals. A moment's consideration will reveal the reason. The professional criminal usually has a "record" and he knows full well that in view of his past history, if there be any sort of a case against him, his own defence, however eloquent or ingenious, will go for nothing. An affirmative answer to the simple question, "Have you ever been convicted?" is, in three cases out of five, equivalent to a plea of guilty. Now it is an understood thing that any prisoner, who is willing to admit his guilt and save the county the expense and trouble of a trial, shall receive some consideration in return therefor when it comes time to impose his sentence, and usually he expects to receive in addition a guarantee of good faith from the assistant district attorney in the shape of the latter's acceptance of his plea to a lower degree of the same crime. The real "gun" is apt to have his life pretty well mapped out. He anticipates serving about so much time "in stir" and figures on beating about every other case before it reaches an actual trial. If worst comes to worst, and he finds he must face a jury of his peers, he dickers for the lowest plea he can get. Whole court terms often go by without a single professional crook being actually tried. If one of them is "caught with the goods" he generally throws up his hands and stolidly takes his medicine. The ordinary citizen quite naturally gains his impressions of the administration of criminal justice by reading accounts of sensational trials. He imagines that the daily life of the prosecutor consists in demanding the conviction of hardened felons with sordid, crime-tracked features, varied by occasional spectacular "star cases" where counsel for the defendant and the prosecutor vie with one another in stupendous outbursts of oratory in which the bird of liberty screams unrestrained and Justice frantically waves her scales. He supposes, if he gives the matter any consideration at all, that defendants languish away their lives in the Tombs waiting for trials which never come, and that influential criminals walk the streets while the indictments against them lie accumulating an overcoat of dust in some forgotten pigeon-hole. He frankly assumes that the jury system is pretty nearly a failure, and knows of his own knowledge, or thinks he does, that any one with enough money can either avoid being tried for crime at all or, if by any mischance he be convicted, can easily escape punishment or at least delay it indefinitely by technicalities of procedure and appeals. In his customary dialect he "has no use" for the criminal or the criminal courts, and his only dread is that he may some time be drawn as a juror and be compelled to serve in a region of the city where he will be unable to find a satisfactory place to get his lunch and in the society of those whose companionship he fancies he is not likely to enjoy. Let us assume that Mr. Ordinary Citizen has been so unfortunate as to receive one of those pink slips which call upon him to "all business or other matters lay aside" and to attend at Part I of the General Sessions of the Peace at ten o'clock on the first Monday of the month. He finds himself in a large and well-lighted court-room, at one end of which, on a dais, sits a judge more or less surrounded by various persons who continually approach and engage him in conversation. At a desk in front, a clerk and his assistant are busy with piles of documents, which "O.C." learns later to be indictments, and with big ledgers which are in fact the "Minutes of the Sessions." The room is crowded, all the benches being filled with a varied, but, on the whole, a respectable-appearing assortment of humanity. In front of the judge and clerk, wandering around inside an enclosure, at one side of which stands the temporarily empty jury-box, are several young men who are earnestly engaged in talking to the lawyers, complainants and policemen who throng at the bar. Suddenly the clerk raises his voice and shouts, "Harken to the call of the calendar!" An officer pounds on a railing with a paper-weight, another bellows, "Find seats there! An' quit talkin'!" and the judge, gazing at a long sheet of foolscap in his hand, remarks inquiringly: "People against Murphy?" The young assistant district attorney at once answers: "People are ready." "If your Honor please," nervously exclaims a stout man pushing his way to the front, "this case has never been on the calendar before. I was only retained last night and I did not receive any notice that it was to be tried until this morning. I ask that it go over until next week." "What do you say, Mr. District Attorney?" asks the judge. "Oh, it's a very simple case," answers the assistant. "There's no reason why it should not be tried to-day." "Well, I'll give you until to-morrow," says the judge. "You must be ready _then_." "People against Smith?" he continues. Both sides happen to be ready in this case. "People against McCord?" "Defendant's going to plead," says the assistant. "People against Vermicelli?" "We expect to make a recommendation in that case, your Honor," announces the assistant,--and so it goes until fifteen or twenty cases have been marked "Ready" or "Passed for the day" or adjourned to let the defendant get his witnesses or, in point of fact, for the lawyer to extract his fee. The clerk then calls the roll of the jury, and after the rush which ensues to present excuses to the effect that the talesman's health or business is in a precarious condition, the court settles gradually down to its routine work. A jury is empanelled and a lank, seedy-looking youth takes his seat at the bar between a spruce, bald-headed little man and a court officer. He is charged with having "policy-slips in his possession." So far "O.C.," our juror, has been impressed with the business-like and cheerful manner in which the proceedings have been conducted. Most of the lawyers, instead of clamoring for a trial for their languishing clients, have exerted all their efforts to secure delays. Then he learns to his surprise that the average length of time which elapses between a defendant's arrest for felony and his trial, unless the prisoner be out on bail, is _less than one week_.[27] "Jury satisfactory to both sides?" inquires the clerk. "Entirely so," reply the little bald-headed man and the prosecutor together. Suddenly the lank youth leans over and whispers to the lawyer, who after a moment's conversation beckons to the prosecutor. There is a brief consultation and the assistant tosses the indictment to the clerk with the announcement: "He pleads guilty." The defendant gets up and shuffles to the bar, where his pedigree is taken and a day set for his sentence, which, in the event of his never having been convicted before, will probably be a fine of twenty-five dollars or a month in the penitentiary. "Call the next case," says the judge. "People against Thompson," shouts the clerk. "Bring up Thompson." The door in the back of the room opens and "Thompson" is "brought up." He is a good-looking young negro, defended by a member of his own race. The jury say they have no prejudice against negroes and are sworn without leaving the box. The charge is one of assault in the first degree--that is to say, with intent to kill. The complainant is a flashily dressed young mulatto woman, who asserts that the defendant "done crack her head wif an ice-pitcher," and produces the fragments of pitcher, done up in a newspaper. She admits that at the time of the unfortunate occurrence she was living with the defendant as his wife. There are no other witnesses for the People, and the defendant is sworn without more ado. He explains that the complainant accused him of being too attentive to a "yaller gal" on the next street and when he attempted to go out of the house she attacked him with a pen-knife. In confirmation of this he exhibits a small cicatrix on his wrist. After hearing the evidence the assistant announces to the judge that the case ought in his opinion to have been disposed of in the police court and that the interests of justice will be subserved if his Honor will discharge the defendant on his own recognizance. This the judge does with an admonitory lecture, and the defendant and the complainant go away together. "O.C.," the juror, begins to conclude that the assistant is a pretty fair sort of a chap. Trial follows trial with great rapidity. Gradually the crowd in the court-room thins out. By one o'clock only a dozen or fifteen witnesses and spectators remain, and by half-past three the benches are practically empty. "O.C." has heard a dozen different complaining witnesses tell the story of how as many defendants have wronged them. The Bowery merchant whose packing-cases have been broken into has followed as complainant the man who has been robbed in a saloon; the "clothes-line fight" has given place to the story of the actual abduction of a young girl by a "cadet"; the landlady who has received a bad cheque from a lodger can hardly wait to recount the history of her misfortunes, for the man who has lost a horse and wagon through a drunken driver, whom he charges with grand larceny. Generally the "People's case" consists of the complainant's version of what has occurred, somewhat corroborated by another witness or two, and the officer who made the arrest. Then the lawyer for the defendant takes his client by the shoulder and with a gruff "Go 'round there, young man," or, if he be playing for sympathy, a gentle "Please take the stand, William," starts him upon that most dangerous of all adventures, a journey to the witness-chair in his own behalf. In two cases out of three the defendant's own testimony, if he is guilty, is what convicts him. Both sides "sum" up in short, disconnected speeches, and the judge delivers a brief charge. The jury file out and another is immediately sworn. As the next trial begins very likely the door from the "pen" will open and the proceedings be interrupted long enough to allow another prisoner to tramp around the court-room, take his stand at the bar, and plead guilty. "John Keenan, alias Foxy Keenan, alias Gum-Shoe Jack, do you now desire to withdraw the plea of 'Not guilty' heretofore entered by you, and to now plead guilty to grand larceny in the second degree?" The defendant acknowledges with no very amiable expression that this is his inclination, and his pedigree, which is taken by the clerk forthwith, discloses that he has served five times in State's prison and twice in the penitentiary. "O.C." looks at his fellow jurors and whistles under his breath. That was the real thing and no mistake. Very likely the jury upon which he is now serving will convict, it having thus been brought to their attention by a concrete illustration that all the defendants are not innocent persons unjustly accused of crime. "Remanded," says the clerk, and Gum-Shoe Jack tramps back to the little door and the interrupted trial goes on. The stream of complainants, witnesses and defendants is as varied as that in Balzac's "Comédie Humaine." "O.C." begins to take a keen interest and now and then to put a question himself. He has taken the opportunity to make the acquaintance of the assistant district attorney at the noon hour and now feels that he is really a part of the machinery of justice.[28] Ordinarily in a full court day there will occur from two to four complete trials, while an equal number of pleas may be taken. Sometimes a hundred and fifty cases will be got rid of by trial or plea in a single term in one part of the General Sessions alone. On the other hand, if the calendar is made up of "old-bail cases," indictments for receiving stolen goods, misappropriation, and Italian or Chinese homicides, the office accounts itself lucky in getting rid of half a dozen cases in the month. Occasionally, when a brisk, business-like judge is sitting, a "homicide calendar" will be disposed of at the rate of one a day, but this is rare and can occur only when most of the cases are for manslaughter or criminal negligence. When trials are rapid their speed always redounds to the benefit, not of the People, but of the defendant. Such a performance in a court of justice as the following, recounted by Lord Brampton, could not take place to-day. It is worth reproduction as marking the progress of criminal procedure: The first thing that struck me in the after-dinner trials was the extreme rapidity with which the proceedings were conducted. As judges and counsel were exhilarated, the business was proportionately accelerated. But of all the men I had the pleasure of meeting on these occasions, the one who gave me the best idea of rapidity in an after-dinner case was Muirhouse. Let me illustrate it by a trial which I heard: Jones was the name of the prisoner. His offence was that of picking pockets, entailing of course a punishment corresponding in severity with the barbarity of the times. It was not a plea of "Guilty," when perhaps a little more inquiry might have been necessary; it was a case in which the prisoner solemnly declared he was "Not guilty," and therefore had a right to be tried. The accused having "held up his hand," and the jury having solemnly sworn "to hearken to the evidence," etc., the witness for the prosecution climbs into the box, which was like a pulpit, and before he has time to look around and see where the voice comes from, he is examined by the prosecuting counsel. "I think you were walking up Ludgate Hill on Thursday 25th about half-past two in the afternoon and suddenly felt a tug at your pocket and missed your handkerchief, which the constable now produces. Is that it?" "Yes, sir." "I suppose you have nothing to ask him?" says the judge. "Next witness." Constable stands up. "Were you following the prosecutor on the occasion when he was robbed on Ludgate Hill, and did you see the prisoner put his hand into the prosecutor's pocket and take the handkerchief out of it?" "Yes, sir." Judge to the prisoner: "Nothing to say, I suppose?" Then to the jury: "Gentlemen, I suppose you have no doubt? I have none." Jury: "Guilty, my lord," as though to oblige his lordship. Judge to prisoner: "Jones, we have met before--we shall not meet again for some time--seven years' transportation. Next case." Time: two minutes and fifty-three seconds. But to return to our juror. What strikes "O.C.," who has now become entirely disabused of his previous ideas of what criminal trials are like, is the fairness with which those trials are conducted in the General Sessions and the fact that the interests of the accused are safeguarded in every possible way. Plenty of time is taken to try out even a pickpocket case or a street-corner brawl. The judge always covers the law fully and accentuates the necessity of giving every reasonable doubt to the defendant. In his heart "O.C." begins to have a slight feeling that the devil is getting a little more than his due. He has acquitted so many of the persons who have been tried that when he now sees a head he is not at all unwilling to hit it. He is fast reaching that state of mind which the prosecutor has anticipated when he has told his chief that in a few days he will have the jury "knocked into shape," in other words, he no longer believes every hard-luck story that he hears, he knows that certain criminal attorneys are capable of almost any kind of misrepresentation, he realizes that practically every defendant has already had a pretty exhaustive trial in the police court before indictment, he is quite as anxious to see the guilty convicted as he is to see the innocent acquitted, and he has been properly disgusted with the attitude and actions of certain of his colleagues in the jury-room whom he regards quite properly as anarchists or idiots. The district attorney at the end of a week has found out who some of these are. They have been "excused" for the remainder of the term, and he can rely pretty safely on the others rendering a fair verdict in any important case which he now desires to move before them. What naturally interests "O.C." and his fellow jurors most of all is the defendant's own story of how he came to be involved in the transaction out of which the charge against him arises. For the first few days he very probably gives such explanations rather more credit than they deserve, for he is sympathetically inclined to believe that the prisoner is more likely to be the victim of circumstances than guilty of an act of moral turpitude. The eager attitude of some of the complainants likewise gives him an excuse for believing them to be actuated by more than a mere desire to see justice done and to have the truth prevail. He is inclined to look for hidden motives for every prosecution. This gradually wears off and his attention becomes centred on the defendant himself. Will he put in a defence? Will he testify in his own behalf? What will he say? Little by little "O.C." gets to inventing defences to fit the facts established against the prisoner by the people's case. Meantime he is learning a little law. That "the people must prove the defendant's guilt beyond every reasonable doubt," and "that no unfavorable inference must be drawn as against the defendant from his failure to testify in his own behalf." "O.C." has some difficulty with the "reasonable doubt." Perhaps he says to himself, "I am a reasonable man,--hence any doubt I have must be reasonable." However, the judge's reiteration that not every doubt is a reasonable one and that the words do not mean "a mere guess or conjecture that the defendant may, after all, be innocent, but a substantial doubt arising out of the evidence in the case, for which a reason can be given," and of such a character as would influence him in the important affairs of his daily life, eventually clears his mind on this somewhat abstruse psychological problem, and he translates "beyond any reasonable doubt" into the more lucid and comprehensive "moral certainty" of ordinary existence.[29] But that he shall not permit himself to be prejudiced against a defendant by the latter's refusal to testify is a much more difficult matter. He knows it to be the law, and he tries hard to obey it, but in a majority of cases he cannot escape the sub-conscious deduction that if the defendant were innocent he would not hesitate to offer an explanation. As time goes on and he gains in experience it becomes even harder to follow the instructions of the judge in this respect. He discovers that the district attorney cannot prove the prison record or bad character of the defendant unless the latter subjects himself to cross-examination by taking the witness-stand, and hence is likely to suspect that any defendant who does not testify is an ex-convict. Three jurors out of five will convict any man who is unwilling to offer an explanation of the charge against him. How they reconcile this with their oath it would be hard to understand, if they were accustomed to obey it literally in other respects. The writer has heard more than one talesman say, in discussing a verdict, "Of course we couldn't take it against him, but we _knew_ he was guilty because he was afraid to testify." As the reader is doubtless aware, under the common law no defendant in either a civil suit or criminal prosecution could testify in his own behalf. He was regarded as a party in interest whose bias must necessarily render his evidence of questionable, if of any, value. This doctrine, along with many others, our fathers adopted on their severance from England, and it continued to be the law in New York for a long time,--in civil cases until 1849, and in criminal until 1869. Then, ostensibly for the sake of the defendant and for the protection of the innocent, the rule was abolished. That the change from the common law was not generally approved either by the bench or bar of New York is clear from the opinion of the Court of Appeals in one of the earliest cases which arose under the new practice.[30] The court expressed the opinion that the change would redound to the benefit of the glib, quick-witted and hardened criminal who could invent a plausible defence, and result in the confusion of the innocent man unjustly accused of crime who might from stupidity or timidity involve himself in apparent contradiction; to say nothing of the fact that if the defendant did not take the stand the jury, however much they were instructed to the contrary, would inevitably draw an unfavorable conclusion from his failure to deny his guilt. Now to any fair-minded American it must seem almost rudimentary justice that the accused should have a chance to tell his own story. That in itself is a sufficient reason for the rule. Just why, theoretically, if a defendant does not see fit to give an explanation and subject himself to cross-examination, the jury should _not_ be permitted to draw an unfavorable inference is not so clear. Experience has demonstrated that an innocent man need have no fear about taking the stand. Jurors sympathize with a defendant who is subjected to a withering fire of questions, and do not expect him to be able to give a lucid account of himself since the day of his birth, or to explain without the minutest contradiction every detail in the evidence against him. But they do want him to deny his guilt and to have an opportunity to "size him up." On the other hand, the slightest word of explanation may suffice to change the whole complexion of a case.[31] In the old days the guiltiest of criminals could, almost with impunity, shield himself behind his lawyer's eloquent assertion that his client had a "perfect defence," but that the law "had sealed his lips." To-day in the vast majority of cases the prisoner who does not take the stand is doomed. Out of three hundred defendants tried by the writer's associate, Mr. C.C. Nott, twenty-three failed to take the stand in cases submitted to the jury. Of these twenty-one were convicted, one was acquitted, and as to one the jury disagreed. Had these men been prevented by law from testifying in their own behalf, the ratio would have been very different. Thus a rule originally intended to benefit the innocent defendant by _permitting_ him to offer his explanation of the charge against him has practically resulted in _compelling_ all defendants, guilty or innocent alike, to testify. It goes without saying that this has resulted in a considerable benefit to the community. Its only disadvantage, and this is probably more theoretical than practical, is that ex-convicts on trial can no longer successfully conceal their pasts. If they do not testify they will probably pay the usual penalty, and if they do testify they are more than likely to be convicted "on their records." Clever criminals often seek to avoid this dilemma by declining the services of counsel and conducting their own cases, thus rendering it impossible for themselves to take the stand, for in such an event there would be no lawyer to examine them. This ruse is well calculated to deceive the ordinary juryman. The jury are also far less inclined to draw an unfavorable inference from a defendant's failure to testify if, on the conclusion of the evidence of the prosecution, he merely "rests on the people's case" and puts in no defence at all, than if he puts in only a partial defence. They readily appreciate that his counsel may honestly believe that as matter of law no case has been made out against him, and they bend their energies to the determination of the simple and unobstructed issue of whether the uncontradicted evidence of the prosecution has of itself established the guilt of the prisoner beyond a reasonable doubt. If he puts in a defence and calls witnesses to contradict those of the people, the jury are apt to concentrate their attention upon the question of the relative truthfulness of the witnesses on either side. Juries, quite naturally, are quick to infer guilt from any attempt at deception on the part of the defence, and habitually visit the sins of his witness upon the prisoner. Every criminal lawyer has had the unpleasant experience of seeing his client convicted merely because the jury have caught one of the witnesses for the defence lying on an immaterial point. Whether the jury hear one or both sides of a case, they inevitably labor under the disadvantage of never being able to pierce the screen which the law has hung between them and the truth in every case. Many a jury is struggling manfully with the question of the defendant's guilt or innocence, while the latter sits in the pen chewing the cud of narcotic contentment and wondering whether the yarn he "framed" for them will be believed. He has figured out what he is likely to get, knowing that even if he were found guilty the judge would probably not "give" him "more than Elmira," and has resolved to "take a chance." As the Elmira sentence is indeterminate, the defendant has nothing to gain by pleading. Once there, he will be released in fourteen months if his conduct appears to warrant it. The only real "chance" that he takes, is, that the judge may send him to State's prison, but he usually has made a study of the judge's character and past performances. Similarly he may have offered to plead to a lower degree of the same offence and his offer may have been refused, yet the matter is confidential and the case has to be tried by the district attorney as though he had no knowledge of the defendant's guilt. So the jury retire and frequently end their deliberations by acquitting the defendant, who leaves the court-room triumphantly to the great chagrin of the prosecutor. The jury, on the other hand, are filled with complacent satisfaction at having restored to liberty a man unjustly accused of crime. But these trifling considerations are as nothing when compared with the limitations which the laws of evidence and procedure place upon the presentation of what is ofttimes a perfectly plain case.[32] The prosecutor who has thoroughly investigated a case has a knowledge of its real merits which can never be brought to the minds of the jury. There is much evidence, not technically admissible, which properly should be considered by him in determining his official action, and there is usually an equal amount of evidence, the competency of which will depend on the course of the trial. He occupies a delicate and frequently a very difficult position, since he must prosecute the case without reference to facts which might conclusively prove the defendant guilty, could they be introduced in evidence. The real character of the accused can almost never be demonstrated, for unless he takes the stand in his own behalf his "record" is inadmissible, and even when he does take the stand, he can deny with impunity any allegation as to his past offences and conduct, since the law does not permit the prosecutor to disprove such denials unless they relate to actual convictions for crime. Similarly the excellent character of the complainant and his witnesses may not be shown, unless the defendant himself directly attacks it, so that it is probable that throughout the case the injured party and the wrong-doer appear to the jury to be of equal credibility. The district attorney is a "quasi-judicial" officer, who must be at one and the same time the friend and right arm of the court and the advocate of the public right. His official position gives him an influence with the jury which honor forbids him to abuse, and demands an impartial consideration of the evidence and a dignified method of conducting the case, irrespective of the tactics of the defence. He represents not only the public, but the defendant, who is one of the public. He should be glad to welcome at any stage of the proceedings credible evidence tending to establish the innocence of the accused, and if it convinces him that the defendant is not guilty, he should, even in the midst of a trial, arise and move that the jury be discharged and the prisoner set free. But this is by no means inconsistent with a vigorous insistence upon the people's rights, nor does it require that the prosecutor should refrain from using the advocate's customary weapons of attack and defence. While he is cross-examining the witnesses for the defence and arguing to the jury, he is for the time being the lawyer for the people, and the appellate courts have said that it would be manifestly unfair not to extend to him in summing up the case an equal latitude of expression and scope of argument with counsel for the defendant. It is the consciousness that he is indeed sore let and hindered in really laying the truth before the jury that makes the accusation of "unfairness" so bitter to a prosecutor, and it is the cause of whatever "overzealousness" it is often popular to ascribe to the district attorney's office. One would think, to read the communications in the evening papers during a recent trial, that the community had no privileges at all. A prosecutor frequently reaches that conclusion from experience. The writer is not aware that the constitutional guarantees which protect the liberty of the individual were intended to deprive the public of an advocate. In the nature of things, if justice is to be done, the People should be entitled to the same rights as the individual. If we are to have respect for law, the law must be deserving of respect, and law which makes rather for the acquittal than for the conviction of the guilty is not of that sort. But with a trained panel of jurors, at the end of the second week of the term, the chaff having been separated from the wheat, the prosecution may reasonably expect to see the mill of justice grinding smoothly and reasonably fine, the jury at home in the court-room, familiar with their duties, and appreciative of the fact that all the assistant is trying to accomplish is the disposal of as many cases as possible consistent with fair trials and just verdicts. By the middle of the term he must be a very indifferent sort of fellow if he has not made friends of the jury; and assuming that he has done his work disinterestedly and in a business-like fashion, he will find that he has now the good-will and respect of the entire panel,--a regard which may well stand him in good stead later on in his career. This is the prosecutor's reward,--to try cases before a body of men who know that he is anxious to do the right thing, ready to welcome any evidence that really tends to establish the innocence of the accused, but insistent that no guilty man shall go free unless his act is first stamped as wrong by a conscientious verdict on the part of the jury. Yet, as the writer has already stated, when the jury disband at the conclusion of the term with the thanks of the court, they have seen few professional criminals, save for a fleeting glance as one or two are led to the bar to admit their guilt. One exception readily suggests itself,--namely, the prosperous swindler who, by means of the "wire-tapping," "sick engineer" or other similar device, has parted some gullible person from his savings. Yet these gentry always save plenty of money with which to engage able counsel and are only forced to trial after they have exhausted every means of delay known to the law. They never plead guilty, but fight until the last gun is fired, believing that as they have escaped punishment in the past, so they will in the future. Their records rarely make it possible for them to take the stand in their own behalf, and if the case goes to the jury at all they are immediately convicted. Almost every panel has the opportunity to hear at least one "sucker" tell his story and to render a speedy verdict in his favor. It needs little explanation from a prosecutor to convince the twelve hard-working tradesmen before him that the defendants in this class of cases are the "real" criminals,--systematic enemies of society. The great bulk of cases, that is to say, nearly seventy-five per cent, are disposed of by plea, by direction of the court, or "recommendation," that is to say, on the written application of the district attorney that the defendant's bail be discharged. Hundreds of cases are thus "turned out" every year, and for the most part represent those instances where the magistrate and grand jury have not had either the time or the inclination to assume the responsibility of discharging the defendants, preferring to put the question "up" to the district attorney or a petit jury. These recommendations are made on numberless grounds, the principal being (1) that it is clearly apparent that a reasonable doubt exists on the evidence; in other words, that as a matter of law the case should not be submitted to a jury; (2) that the People's witnesses have disappeared or left the jurisdiction; (3) that the case has once been tried with the jury standing almost unanimously for acquittal; (4) that owing to the peculiar circumstances in the case it is quite unreasonable to suppose that any jury would convict,--such as where an entirely respectable young woman being out of work has, in a fit of despair, attempted her own life.[33] Two or three cases are disposed of in this manner in each part of the Sessions almost every calendar day in the year. The defendants who plead guilty are professional criminals, ex-convicts, and prisoners whose guilt is so overwhelmingly clear that they have no hope of getting even a disagreement. Thus most of the cases tried are neither "dead open and shut," as the saying is, nor exceptionally weak. They usually present some question of doubt,--usually only a conjectural one, however, or at least admit of a more or less logical argument for an acquittal on the part of the defence. In trivial cases the jury are inclined to take the law into their own hands. Boys charged with attempting to pick pockets or burglarize small stores, with assaulting police officers, carrying concealed weapons such as knives and brass knuckles, having policy-slips in their possession, rioting, malicious mischief, etc., are usually acquitted. This is because the jury think that they have been already punished enough for the character of offence which they have committed,--not because they believe them innocent. Cases where the charge is a serious one and which are tried before trained panels on a substantial amount of evidence usually result in conviction. In so-called "important" or "star" cases, defendants are rarely acquitted. If the reader will recall the sensational first trials of the last ten years he will find that there is hardly a single acquittal among them.[34] It is the petty law-breaker who profits by the lawlessness of the modern jury. The fact that the prosecutor appears every day before the general panel of jurors in the Part to which he is assigned throughout the term and soon gains among them the reputation of being fair, and that he on his side knows their peculiarities and idiosyncrasies is what makes the jury system in criminal cases work more accurately and accomplish better results than in civil trials, where the jury usually has never seen either counsel before and probably distrusts both of them. A prosecutor who knows his petit jury, its faults, virtues and foibles, can move an important case before it, even though it be composed of retail cigar and newspaper dealers and small tailors from the East Side, more safely and with a better expectation of a just verdict than before a "special" panel of bankers and architects with whom he is unfamiliar. The ordinary panel at its daily task during the last two weeks of every term illustrates the jury system at its best. Cases moved at the beginning of the term usually result in acquittals. Occasionally a jury will open a term with a rather unexpected conviction, but it takes three or four days before they realize that a reasonable doubt is not meant to include "a mere guess or conjecture that the defendant may, after all, be innocent." Wily criminal practitioners seek if possible to have their cases put on the calendars at the opening of a term, and to secure adjournments at the end of the term in order that they may go over to the beginning of the next. Court officers often win fame in accordance with their ability as "plea getters." They are anxious that the particular Part to which they are assigned shall make as good a showing as possible in the number of cases disposed of. Accordingly each morning some of them visit the pens on the floor below the court-room and negotiate with the prisoners for pleas. The writer suspects that the assistant in charge of the Part is usually depicted as a fierce and relentless prosecutor and the jury as a hardened, heartless crew who would convict their own mothers on the slightest pretext. The joys of Elmira as contrasted with other places of confinement are alluringly described and a somewhat paradoxical readiness to accept any sort of plea, in view of his bull-dog character, is attributed to the assistant. The writer has known of the entire population of a prison pen pleading guilty one after another under the persuasion of an eloquent bluecoat assisted by an opportune conviction. Of course the prisoners expect to be treated with a considerable degree of leniency, and if one of their comrades goes up to plead and returns with the story that the judge is "easy" and the assistant "all right," and a sentence to Elmira, the others are apt very quickly to follow suit. If, however, the first of the batch called for trial does not come back at all (having been acquitted), the remainder will not "plead" under any circumstances. The same thing is true if the first prisoner who pleads gets a severe sentence. Prosecutors anxious to dispose of business hope for light sentences at the beginning of the term. Most of the homicide cases are tried in the Criminal Term of the Supreme Court, and a great many pleas to "manslaughter" are accepted by the judge where the technical charge is murder in the first degree. The grand jury indict for murder in almost every homicide case on the theory that some evidence may possibly be given at the trial which will warrant such a verdict. A very large proportion of these defendants plead guilty to manslaughter, and are encouraged in all legitimate ways to do so. About two years ago, in the Supreme Court, the first defendant called to the bar concluded that discretion was the better part of valor and pleaded guilty. The judge, who had never sat in Criminal Term before, promptly gave him eighteen years,--only two less than the maximum, although the shooting had occurred during a quarrel over a game of "craps." Not a single other prisoner offered a plea to any degree of crime during the remainder of the term. A great deal of interest is felt everywhere in the practical results of the jury system, and particularly in the proportion of convictions to acquittals. Figures purporting to show such ratios should be scrutinized with great care, as they usually include among "verdicts of conviction" pleas of guilty voluntarily offered by the defendant, and similarly include among "acquittals" all cases where defendants are discharged without trial on the motion of the prosecutor. The only figures which have any particular bearing on the question of how far the jury system is efficacious are those drawn from the results of actual trials in which verdicts have been rendered. The following table shows the comparative number of convictions, pleas, acquittals, etc., in New York County during the last eight years: -----+--------+------+-----------+------------+----------+----------+ Year |Convic |Pleas |Acquittals |Discharged | Bail |Indictment| | -tions | |by Jury and| on Own |Discharged|Dismissed | | | | Direction |Recognizance| | | -----+--------+------+-----------+------------+----------+----------+ 1900 | 424 | 1,672| 733 | 366 | 185 | 76 | 1901 | 551 | 1,838| 688 | 434 | 192 | 165 | 1902 | 419 | 2,009| 698 | 351 | 457 | 257 | 1903 | 485 | 1,918| 615 | 321 | 299 | 92 | 1904 | 495 | 1,971| 700 | 363 | 272 | 50 | 1905 | 489 | 2,001| 602 | 352 | 207 | 57 | 1906 | 464 | 2,079| 560 | 428 | 344 | 99 | 1907 | 582 | 2,266| 656 | 493 | 202 | 100 | -----+--------+------+-----------+------------+----------+----------+ Total| 3,909|15,754| 5,252 | 3,108 | 2,158 | 896 | -----+--------+------+-----------+------------+----------+----------+ -------+------+----------+----------+----------+----------+--------+------ Forfeit|Decl- |Sentenced |Superseded|Dismissed |Discharged|Disch- |Total -ures | ared |on another|Indictment| by | on Writ | arged | |Insane|Indictment| |Grand Jury| | (Comp.)| -------+------+----------+----------+----------+----------+--------+------ 74| 13 | 60 | 19 | 1,093 | 4 | 141 | 4,860 113| 8 | 77 | 36 | 1,045 | 4 | 116 | 5,267 97| 5 | 67 | 62 | 863 | 2 | 73 | 5,360 62| 12 | 65 | 40 | 807 | 7 | 86 | 4,809 63| 8 | 63 | 37 | 898 | 20 | 99 | 5,039 51| 8 | 82 | 38 | 1,035 | 5 | 93 | 5,020 47| 11 | 137 | 45 | 980 | 2 | 69 | 5,265 45| 12 | 179 | 38 | 1,529 | 4 | 131 | 6,237 -------+------+----------+----------+----------+----------+--------+------ 552| 77 | 730 | 315 | 8,250 | 48 | 808 |41,857 -------+------+----------+----------+----------+----------+--------+------ During 1907 in New York County out of 4,573 indictments .62 per cent. (including pleas of guilty) resulted in convictions. The following table shows a gradually increasing percentage of such convictions for the past eight years: -----+-----------------------+-------------------+------- Year | Number of Indictments | Total Convictions | Ratio | Disposed of | | -----+-----------------------+-------------------+------- 1900 | 3,620 | 2,096 | .5790 1901 | 4,096 | 2,389 | .5839 1902 | 4,410 | 2,428 | .5506 1903 | 3,909 | 2,403 | .6144 1904 | 4,022 | 2,466 | .6131 1905 | 3,887 | 2,490 | .6405 1906 | 4,214 | 2,543 | .6035 1907 | 4,573 | 2,848 | .6228 -----+-----------------------+-------------------+------- During this eight-year period 32,731 indictments were finally disposed of either by trial, plea, direction of the court or on the recommendation of the district attorney. These dispositions bear the following ratios to each other: ----+-----------+--------+----------+----------+----------+------------ Year|Convictions|Pleas of|Acquittals|Acquittals|Discharges| Minor | by | Guilty |by Verdict| Directed | |Dispositions | Verdict | | | | | ----+-----------+--------+----------+----------+----------+------------ 1900| .1171 | .4619 | .1013 | .1012 | .1707 | .0478 1901| .1345 | .4487 | .0840 | .0840 | .1831 | .0657 1902| .0950 | .4556 | .0792 | .0791 | .2324 | .0587 1903| .1239 | .4905 | .0786 | .0785 | .1770 | .0515 1904| .1231 | .4901 | .0887 | .0853 | .1685 | .0443 1905| .1258 | .5148 | .0769 | .0779 | .1585 | .0461 1906| .1101 | .4934 | .0584 | .0745 | .2067 | .0569 1907| .1273 | .4955 | .0577 | .0857 | .1739 | .0599 ----+-----------+--------+----------+----------+----------+------------ What the reader is naturally most curious to discover is in what proportion of cases (where they had any say in the matter at all) the jury let the defendant go. Roughly speaking, the proportion of convictions to acquittals _by actual verdict_ is considerably more than two to one,--the ratio for 1907 being as 69 is to 31: ----+-----------+----------+-----------+---------- Year| Number | Number |Convictions|Acquittals |Convictions|Acquittals| Per Cent | Per Cent |by Verdict |by Verdict| | ----+-----------+----------+-----------+---------- 1900| 424 | 367 | 54 | 46 1901| 551 | 344 | 62 | 38 1902| 419 | 349 | 55 | 45 1903| 485 | 307 | 61 | 39 1904| 495 | 357 | 58 | 42 1905| 489 | 299 | 62 | 38 1906| 464 | 246 | 65 | 35 1907| 582 | 264 | 69 | 31 ----+-----------+----------+-----------+---------- The writer desires very particularly not to be understood as suggesting that because the district attorney in all these cases thought the defendant guilty or even _knew_ him to be guilty, the action of the jury was necessarily improper. So far as his opinion may be worth anything he believes thoroughly in the jury system in criminal cases, with some trifling modifications. In a vast proportion of the cases in which acquittals resulted there was undoubtedly room for an honest difference of opinion as between reasonable men,--men in the long run better qualified to judge of the defendant's guilt _on the evidence_ than the prosecutor himself, who is always at the disadvantage of knowing the "inside" or "unprovable" elements of the People's case, a fact which is apt to lead him to believe that the record establishes his own contention more than it appears to do so to the jury. The propriety of any jury's action must be determined only upon the basis of the evidence presented to them, and upon which they are permitted to act. The writer is inclined to believe that nearer eighty than seventy per cent of the defendants tried should be convicted. In the heat of conflict he might even claim ninety per cent and maintain that if a majority of eleven on each jury could render a verdict, nine out of every ten defendants, after a hearing in the magistrate's court, an examination by the grand jury, and a careful investigation by the prosecutor's office, should be convicted. The writer submits that the increasing percentage of convictions shown on the opposite page is evidence of the effectiveness of the jury in criminal cases in New York County. FOOTNOTES: [Footnote 27: This is a vast improvement over the conditions which existed in this regard six or seven years ago, when defendants in prison could count themselves fortunate if tried within three weeks, or, if on bail, within a year. It was by no means unusual to have cases appear upon the calendars from three to five years old, the backs of the indictments being covered with the names of assistants long since departed from official life. The writer once tried a case that had appeared on the calendar TWENTY-EIGHT times, and cases which had appeared there from ten to twenty times were the rule, not the exception. In the days when the present district attorney was a deputy, indictments were so carelessly found and treated that in order to clear the calendars bushel baskets of them would be brought into court and dismissed "on the recommendation" of the district attorney. A house-cleaning process of this sort would ordinarily occur just before it became necessary to make an official report on the number of cases "disposed of." To-day there are very few indictments not tried within the year, and almost any defendant who wants one can get a speedy trial, such delays as arise being generally caused by the defendant himself. Of course during the summer months when but two courts are open, and the judges sit from only ten-thirty to one o'clock, action is somewhat less speedy, and as homicide cases usually require more time for trial than others, and are tried _seriatim_ in order of age, the defendants may have to wait a little longer than in cases of less gravity. Even in such cases defendants generally have to be "forced to trial" against their will.] [Footnote 28: The writer's colleague, Mr. Charles Cooper Nott, Jr., has recorded, as follows, the actual proceedings of an ordinary court day: "Maria Dzialozindky takes the stand and swears that after a brief acquaintance she married (as she supposed) the defendant before a rabbi of his choosing; a man in charge of an officer is identified by her as the rabbi; he is brought over from the penitentiary on Blackwell's Island where he is serving a sentence for larceny, being a thief and not a rabbi; Maria then goes on to relate how the defendant then procured from her one hundred and forty-nine dollars, and disappeared, leaving her alone in the Suffolk Street tenement which was to have been their connubial bower of bliss; it further appears that the defendant had a wife living at the time that he went through the ceremony of a mock marriage with Maria. Defendant takes the stand, modestly admits that he is possessed of such unusual attractions that Maria persecuted him into this marriage; that she forced the one hundred and forty-nine dollars upon him, and that he unfortunately slumbered in a saloon and it was stolen from his person. The jury fail to give credence to his tale, and promptly convict him. The next defendant is smooth and well dressed, a hanger-on in the region known as the Tenderloin. Testimony is given that he and another did take and carry away and sell certain typewriting machines from an office in Thirty-fourth Street. Defendant with an engaging smile tells how his companion had just been discharged from the office in question, and had enlisted his (defendant's) aid to remove the machines, which he informed defendant were his own, and how shocked he was later to learn that this wicked companion had no right or title to them. His smile is so engaging, and his looks so respectable, that the jury acquit him, and are somewhat chagrined when the judge, in discharging him, states that in the court's opinion he is a smooth and plausible thief and guilty beyond a doubt--which is the fact, as previous to the trial he had offered to plead guilty to a lower degree of the crime charged. Next comes a stalwart Irishman who describes with much feeling how the defendant (unfortunately a much smaller man), without any provocation whatever, viciously assaulted him in the hallway of the West Side tenement-house where they both lived, and cut him in various vital parts with a pocket knife. Defendant (bandaged to no less a degree than complainant) describes how he had "an argument" (a term embracing any affray ending in anything short of murder in the first degree) with complainant and his brother over a game of cards, whereupon they followed him to the hallway, threw him down and kicked him, and then struck at them with a large key. His talk sounding reasonable and being corroborated by several neighbors, defendant is acquitted. Lastly, an unsuspecting passenger and an alert trolley-car conductor tell how defendant, a shifty-looking young gentleman, while sitting next to the unsuspecting passenger, kept with one hand a newspaper shoved under the latter's chin, while with the other he abstracted a fine diamond scarf pin adorning his cravat. When their tale is completed, the defendant and his counsel put their respective heads together, and counsel then announces that his client, the sole support of a widowed mother, did, in a moment of temptation induced by filial anxiety, endeavor to acquire this pin, and he therefore desires to throw himself upon the mercy of the court and plead guilty, which he does. It appears, however (of course to counsel's astonishment), that his portrait has for several years ornamented the Rogues' Gallery, and that his record as a son is not all that it might be, whereupon he is sentenced upon the spot, and court adjourns. This is the summary of the actual record of a court day presenting no unusual features"--_"In the District Attorney's Office," Atlantic Monthly for April, 1905._] [Footnote 29: Cf. "Reform in Criminal Procedure," by Everet P. Wheeler, 4 Columbia Law Rev. 356.] [Footnote 30: Ruloff vs. The People, 45 N.Y. 221.] [Footnote 31: Mr. Nott cites the following case: "The complainant, A, a well-dressed bartender, testified that he had known the defendant, B, for some time; that on the night in question B came to A's rooms, and shortly after B's departure, A found that his watch was missing; the watch had been in the pocket of A's vest, which A had left hanging on a chair, and A had stepped out of the room for ten minutes, leaving B alone there. B afterwards admitted to A that he had "hocked" the watch. Of course this testimony, if believed, made a case against B, and it is difficult now to realize how any one could ever have believed that the chance of explaining or contradicting it could be more dangerous to B than the certainty of having A's testimony go to the jury uncontradicted. B took the stand and testified that he was getting a good salary as manager of an "intelligence office"; had never been even arrested before; that A had obtained a loan of fifteen dollars from him and had left the watch with him on the understanding that B was to pawn it for fifteen dollars and give A the ticket; B did pawn it in his own name and was shortly thereafter arrested. This case is a fair illustration of a puzzling class. On the one hand, no motive or reason was shown why A should cause the arrest of his friend on a false charge (unless that of getting the watch back from the pawnbroker without payment of the fifteen dollars, on the ground that it had been stolen, is an adequate one). Upon the other hand, B's character and position in life seemed to make it unlikely that he would commit such a theft, and his act in pawning the watch under his true name gave color to his story. The jury acquitted, and who can say that there was not at least a reasonable doubt?"] [Footnote 32: Mr. Nott gives the following illustration from an actual trial: "Take, for example, a certain case tried in the Criminal Branch of the Supreme Court in the January term of 1902. The jury saw the defendant, a stalwart, open-faced laboring man of nearly sixty years, on trial for murder in the first degree; they heard a bartender and a smooth-shaven, bullet-headed witness describe how the defendant in the saloon became involved in a dispute with the deceased, caused by the defendant's bad taste in reminding him that he had done time for killing his own father; and they heard him of the bullet-head admit on cross-examination that a scar adorning his neck had been inflicted by the deceased some two years before; they heard the two witnesses describe how the deceased left, breathing threatenings and slaughter, and how a few minutes later the defendant, in the room back of the saloon, was approaching the rear door, cutting a plug of tobacco with his knife, which he had providentially drawn for that purpose, when the deceased leaped upon him from the door and tried to stab him, whereupon a fight ensued, in which the defendant was cut, and after which the deceased left, followed a few minutes later by the defendant and the bullet-headed, who saw naught further of him. To mar the symmetry of this tale of self-defence (proved by the prosecution's own case), but two jarring facts appeared--first, the saloon proper (not the rear room) was found soaked in blood, and, second, the deceased was found shortly after the defendant's departure at three A.M. lying on the sidewalk in plain sight of the rear door, with his throat cut from ear to ear. No evidence was put in for the defence, the defendant modestly refrained from taking the stand, and of course an acquittal was inevitable. "From behind the scenes, however, the facts assumed a different aspect. The frank-faced defendant was one 'Red,' who had served time for robbery and other offences; the bullet-head surmounted shoulders upon which rested a heavy load of crime and violence, their owner having served the State several times and been implicated in numerous crimes, including murder; the bartender would have considered it quite as safe, and far more comfortable, to put a bullet through his head than to testify against this choice pair; while it was true that the deceased had killed his own father, the act was performed while parent and son were in a drunken fight, by striking the old man on the head with a water pitcher, and had occasioned great mortification to the son when he became sober; and it was true that defendant and the bullet-headed were both bitter enemies of the deceased. On this statement of facts, there is little doubt that the deceased was murdered in the saloon where the blood was found, and his body thrown out on to the sidewalk, and the story arranged, the defendant shouldering the quarrel because he had received a cut in the course of the fight. As the defendant did not take the stand, his record and character could not be shown; as the State was compelled to call the bartender and the other witness (they being the sole witnesses to the occurrence), it could not impeach their veracity nor attack their character. To the prosecuting officer, therefore, was presented the choice of recommending the 'turning out' of a desperate criminal without a trial, or of putting in what facts the law permitted to be shown, and leaving the jury to acquit, while marvelling that such a weak case should be presented to them."] [Footnote 33: The number of these cases is one of the saddest commentaries upon the conditions of life in a great city. Upon this charge during the year 1905, 268 males and 114 females, a total of 382, were arrested. Thirteen males and no females were held for trial and the others were discharged. _Comparison with Previous Years_ ------+--------------------------+------------------------- | Number Arraigned | Number Held for Trial Year +--------+---------+-------+-------+---------+------- | Males | Females | Total | Males | Females | Total ------+--------+---------+-------+-------+---------+------- 1896 | 147 | 72 | 219 | 30 | 6 | 36 1897 | 228 | 130 | 358 | 42 | 12 | 54 1898 | 202 | 159 | 361 | 26 | 15 | 41 1899 | 257 | 140 | 397 | 40 | 13 | 53 1900 | 251 | 173 | 424 | 40 | 12 | 52 1901 | 244 | 143 | 387 | 24 | 3 | 27 1902 | 244 | 158 | 402 | 23 | 6 | 29 1903 | 374 | 156 | 530 | 15 | 4 | 19 1904 | 234 | 123 | 357 | 15 | - | 15 1905 | 268 | 114 | 382 | 13 | - | 13 1906 | 269 | 136 | 405 | 20 | 2 | 22 1907 | 258 | 135 | 393 | 13 | 1 | 14 --------------------------------------------------------- ] [Footnote 34: Peo. _vs._ Molineux, Peo. _vs._ Bissert, Peo. _vs._ Glennon, Peo. _vs._ Mills, Peo. _vs._ Patrick, Peo. _vs._ Ammon, Peo. _vs._ "Al" Adams, Peo. _vs._ Hummel, Peo. _vs._ Wickes, Peo. _vs._ Wooten, Peo. _vs._ Rothschild, Peo. _vs._ Kanter, Peo. _vs._ Summerfield, Peo. _vs._ Sam Parks, Peo. _vs._ Weinseimer, Peo. _vs._ Burnham, Peo. _vs._ Gillette, Peo. _vs._ H. Huffman Browne.] CHAPTER X THE JUDGE The two principal functions of the judge of a criminal court are, first, to preside at the trial, declaring the law and seeing to it that the rules of procedure and of evidence are properly observed and, second, to impose sentence in case of a conviction. In the first case he is a judge of the law; in the last he becomes a judge of the facts. It would be impossible to say which of these duties is the more important, but the latter is certainly vastly the more difficult. An unjust sentence is as bad, if not worse, than an unfair trial, for the defendant does not have a chance of escape and, since punishment is a matter of discretion upon the part of the judge, it cannot be considered or reversed on appeal. It must be of precious little satisfaction to a convicted prisoner to know that he has had a perfectly impartial trial, if at the same time he receives a sentence four times longer than he deserves, and equally little consolation to a prosecutor when, after a fair contest, he has convicted a political rascal of influence if the judge "suspend sentence" and the defendant is permitted to walk the streets in spite of his offences. The amount of learning requisite to preside with efficiency at an ordinary criminal trial is comparatively small, and provided the judge be honest, impartial, possessed of common-sense and what is known as "backbone," neither prosecutor nor defendant's counsel need, as a rule, complain, but the trouble, time, courage and discrimination necessary adequately to determine what punishment should be meted out to a particular offender for a given offence cannot well be overestimated. It is not a difficult matter to preside with dignity at a trial, preserve order, exclude hearsay testimony, apply the other simple rules of evidence that are ordinarily involved in a case of assault, larceny, burglary or homicide, and instruct a jury as to "reasonable doubt," "good reputation" and the "presumption of innocence" in words of one syllable. We may fairly assume that it is no harder for the ordinary judge to try a man for picking a pocket than it is to dress himself in the morning. It must in time become automatic if not almost sub-conscious. He could probably do it in his sleep. Most petty criminal cases "try themselves." The trouble begins when the same judge is compelled to decide whether the convict shall be sent to the Elmira Reformatory (where he may reasonably expect to be discharged in fourteen months) or to State's prison for twenty years. Let us consider first the conduct of the judge during the trial itself. Theoretically it is his duty, at least in most States of the Union, simply to declare the law governing the case and to rule impartially upon the questions of evidence presented. He is supposed to give no hint of his own opinion as to whether or not the defendant should be convicted and to refrain from any marshalling of the facts claimed to have been proven by either side in such a way as to influence the verdict of the jury. In England he may and generally does "sum up" the case; in America such a course would usually be a ground for reversal, his function being limited to an abstract discussion of the law involved, with little reference to the facts save in so far as it may be necessary for purposes of illustrating the way in which the jury shall apply it. He is supposed to sit upon his dais serenely, indifferent as to whether a murderer be convicted or acquitted, whether an inexperienced assistant district attorney be "trounced" by an astute criminal lawyer with a couple of generations of trial experience, or, on the other hand, a bulldozing prosecutor bedevil a miserable prisoner, defended by an ignorant and untutored counsel, into State's prison,--provided either be done within the strict rules of evidence and proper court behavior. This may be all very well in theory,--but it is very far from what is either followed in practice or, to speak frankly, desirable. What the people want in our criminal courts is, of course, a "fair trial," but they want a "fair trial" that results in the acquittal of the innocent and the conviction of the guilty,--so long as he is convicted by what they deem fair means. The people do not expect a judge to be more than human. Did he appear as indifferent to results as theory might seem to require the jury would quickly infer that the case was of slight importance and their action a matter of utter indifference to the court. Juries need to be kept in order and made to behave themselves, and, if judges did not from time to time exert a disciplinary influence, would easily run wild and become hopelessly demoralized. It is almost impossible to overestimate the awe with which the ordinary juryman regards the judge presiding at a criminal trial. He may have a supreme contempt for his personality or private conduct, but once let the judicial ermine enshroud the individual and he sees only the judge,--the personification of the law, the autocrat of the court-room, the "boss" of the particular "job" upon which he is temporarily employed. He knows nothing of the abstract theory of the situation. He wants to do well as a juryman and believes, quite naturally, that an improper verdict will be visited by the judicial wrath and a just one be acknowledged by a look of benignant commendation. If he thought the judge did not care he would take little interest in the business himself, and the apprehension of the court's approval or disapproval is an ever-present factor in keeping him doing conscientious work,--quite as important in its results as his own lightly murmured oath as a juror. The judge, in addition to his theoretic duties, is in effect the individual who must keep the gang at work and see that every one of them earns his two dollars a day. If he appeared to them to be star-gazing or studying Epictetus they would soon rest on their shovels. Many juries take their cue from the court, laughing when he laughs, and frowning when he frowns, and instinctively, however much he may admonish them to the contrary, trying to determine from his manner and charge what his own impression of the case may be. Now, a judge who has sat for ten or fifteen years on the criminal bench is usually keener to detect a liar or see through a "faked" defence than any twelve men drawn indiscriminately from different walks of business activity. A timely question from him may demolish a perjured explanation which, but for his interference, would have acquitted a guilty criminal. Theoretically it is none of his business. Practically it is. An inexperienced prosecutor may be so inadequate to the task of coping with some old war-horse of a lawyer that save for the assistance of the court a rascal would be turned loose upon the community; or, turn about, a stupid lawyer may convict his own client if not prevented by a considerate presiding justice. Theoretically the judge must let the parties fight it out by themselves. In point of fact it is his business to even things up. The old country judge was not so far wrong when on being assigned to the criminal term of the Supreme Court in New York City he said to the prosecutor: "Mr. District Attorney, I reckon that, between us, we shall let no innocent man be convicted,--and no guilty man escape." Practically this expresses in a nutshell the popular idea of what a criminal judge is for, and it is certainly the idea which pervades the minds of the jury. Nothing can eradicate it. It is a fact,--an existing condition, which the court must inevitably take into consideration in determining his course of conduct upon the bench. By this it is not meant that a judge should be either counsel for the defendant or district attorney, nor that he should force his ideas upon the jury, but simply that to be effective he must be more than a nonentity, a mere law book, or an ornament, must guide the course of the trial, and, in default of its being done by the counsel on either side, test by his questions the truth or falsity of the testimony. More than this, he should in his charge indicate the tests which the jury should apply to the various phases of the evidence and, while not influencing them upon the questions of fact which they are to determine, should nevertheless so elucidate their task that they may be guided in their deliberations and not go astray among the tangled underbrush of an adroit counsellor's "requests to charge." The writer has endeavored in the preceding paragraphs to set forth briefly the theoretical function of the judge as opposed to his proper practical function if he is to be of any value in the actual administration of criminal justice. One more step is necessary, namely, to comment on the actual conduct of some judges who from natural disposition or a conscientious purpose to "do justice" are inclined to usurp the function of the jury and practically to direct either an acquittal or a conviction. Under our prevailing doctrines the court has no right to influence the jury on the facts in the slightest degree, and indeed most judges expressly direct the jury to disregard absolutely any idea they may have obtained of what the court's opinion may be. This, in the face of the balance of the charge, must often seem paradoxical to the talesman, for few judges entirely succeed in concealing their own views of the case, however hard they may honestly try to do so. It is quite as foreign to the spirit of our institutions for a judge to interfere with the jury on questions of fact as for a jury to arrogate to itself the decision of points of law. The system is designed to do "justice" by means of its several parts working harmoniously together, but neither part "working justice" by itself. If the judge arrogate the jury's function, the jury becomes superfluous. This is not the intent of the Constitution. There is no real trial by jury when the judge decides the whole matter, and it would be far more dangerous for a single man to act as arbiter of the defendant's fate than for twelve. Yet more or less consciously there is often a tendency upon the part of the criminal bench to lend itself to the success of one party or the other, however positively it may declare and direct to the contrary. The actual amount of suggestion needed to give the jury an effective hint is infinitesimal. The almost imperceptible accentuation of a word, the slightest lifting of an eyebrow, and a verdict has been determined--by the judge. Now a printed record on appeal fails utterly to disclose the tone of the voice or the stage effects of a judge's charge. A distinguished member of the bench, now long since deceased, was accustomed to deliver charges so drastic that a defendant charged with a serious offence rarely, if ever, escaped. Upon appeal absolutely no exception could be taken to his remarks, yet nothing more unfair could be conceived of. The record would show that the judge had charged: "If you believe the defendant's testimony you will of course acquit him. He is presumed to be innocent until the contrary is proved. If you have any reasonable doubt as to his guilt you must give him the benefit of it. On the other hand, if you accept the testimony offered by the People you may and will convict him." Now, nothing on its face would seem to be fairer. What the jury actually heard was: "If [scornfully] you _believe_ the defendant's testimony you will of course acquit him. He is _presumed_ [with a shrug of the shoulders] to be innocent until the contrary is proved. If you _have_ [another shrug] any _reasonable_ doubt as to his guilt you must give him the benefit of it. _On the other hand_, if you accept the testimony offered in behalf _of the People_ you may _and will convict him_!" [The last few words in tones of thunder.] Sometimes a judge becomes known as a "convicting" judge, although, perhaps, at the same time as a learned one. This usually occurs where a man of pronounced opinions with the advocate's temperament is elevated to the bench. Very likely by inclination he is a "prosecutor," with strong prejudices against law-breakers and bitterly intolerant of technicalities. The powers that prey may cower inert in their dens of darkness knowing full well that if one of them be haled before this Jeffries he will pay the uttermost penalty. Yet the spectacle of such a judge does not increase the public respect for law, and juries sometimes revolt and acquit out of sheer resentment at such dictation. But happily these men are of the past, and the more enlightened sentiment of to-day would frown as much upon a "hanging" judge as upon a jelly-backed wearer of the gown who was afraid of the displeasure of some politician if a "heeler" were convicted and who ruled systematically against the people because they had no appeal and could take no exceptions to his conduct. Nothing strikes so sharply at our conception of liberty as the failure of criminal justice, and the conviction of a defendant not legally proven guilty or the acquittal of an influential criminal has a more disastrous effect upon the body politic than ten thousand bales of anarchistic propaganda. The partisan judge, who makes up his mind to convict or acquit if he can, may be right nine times out of ten, but the other time he commits an outrage. The judicial temperament is a jewel above all price. The writer recalls a certain case of a variety subject at the time to great public condemnation, where the judge before the indictment was moved for trial, inquired casually of the clerk what the defendant was charged with. When he learned the nature of the accusation he exclaimed audibly: "Ha! He's one of those ----s, is he? Well, I'll try _this_ case." And he did. Unfortunately judges often "try" cases, either for the defendant or against him. Nothing is more unfortunate for the judicial equilibrium than the fact that the prosecution has no right of appeal in the event of a verdict of acquittal. The judge may persistently prevent the district attorney from putting questions which are both competent and proper and rule flatly against him on the most obvious points of law without any redress on the part of the people. A weak judge will take no chances on being reversed and will pursue this course, while at the same time he is allowing every latitude to defendant's counsel and is ruling in his favor in defiance of the established doctrines of law. A criminal lawyer of great adroitness, learning and probity, after he had concluded an argument of the most utter absurdity to which the presiding judge had listened with much attention and apparent consideration, frankly stated to the writer: "You think my argument was nonsense? Well, you are quite right, it was. But no proposition of law is too far-fetched or ridiculous to be advanced in behalf of a defendant without some prospect of success in our criminal courts." The lawyer in question will undoubtedly recognize his dictum in these pages. The attitude and disposition of the various judges becomes speedily known among the members of what is popularly known as the "criminal bar," and heroic efforts (often successful) are made to bring certain cases before the "right" judge. "Do you think I'd try the Smith case before ----?" one will say. "Not on your life!" In similar fashion lawyers retained by complainants will seek to have their cases put on the calendar of such and such a judge. "Put it before ----," they will say. "He's _hell_ on larceny!" Some judges are supposed to be more lenient in the matter of sentences than their brothers of the bench, but the writer, after six years of observation, believes this to be a fiction. They are all lenient,--entirely too much so. Much of the impression among criminal lawyers that they will fare worse at the hands of one member of the judiciary than another is due to the obvious fact that some judges are by reason of their training better suited to sit in certain classes of cases than others. One may have had an exhaustive experience in commercial matters and thus be better qualified to pass upon the questions of law involved therein. Another may have heard many complicated cases involving expert testimony, etc., etc. Of course as a rule the less well equipped a judge is to hear a certain kind of case the more apt he will be to listen to ill-founded argument on the law or the facts. No insurance swindler would want to be tried before an expert on insurance law. He would very naturally prefer a judge whose experiences had converged upon assault and battery. It must be admitted that occasionally a judge is to be found who seems to feel that every complainant who has lost money in a commercial transaction has no standing in the criminal courts but must be relegated to civil tribunals. This is but another way of saying that such a judge does not believe that the criminal law is meant to cover cases where there has been fraud in commercial transactions. This is hardly to be wondered at considering the present ineffectiveness of our statutes governing such classes of crime. The writer recalls prosecuting such a case before a certain judge who, after hearing some rather complicated evidence in regard to certain written instruments, called abruptly for the defendant. The latter took the stand, and the judge inquired with a smile: "You didn't intend to cheat this man, did you?" "Certainly not!" cried the defendant. "Gentlemen of the jury!" said the judge. "This is not the kind of case that should be brought before a jury at all. This court is not the place to collect civil debts. I instruct you to acquit." Learning wisdom by experience, the writer moved the case of the co-defendant for trial before another judge and convicted him, although he was, if anything, less guilty than the first. He was sentenced to a substantial term in State's prison. As a rule, however, little fault can be found with the conduct of our judges at criminal jury trials. In some instances it may seem to one side or the other that a judge shows bias, but these cases are comparatively few and seldom result in any actual miscarriage of justice. If some judges are inclined to rule against the People upon doubtful questions of law, this in the long run has at least the beneficial effect of reducing the number of cases reversed upon appeal. The judges are almost invariably courteous, long-suffering, and given to allowing the greatest latitude to each side in getting its evidence before the jury. In addition they are practical men of common-sense, most of them of long and profitable experience, and experts in the rapid disposition of business. Let us now turn to the other and no less important function of the judge,--the imposition of sentence. It is a platitude that the chief failing of modern criminal justice is the inequality of punishment. It may well be and often is the case that in one branch of the General Sessions a prisoner is being released upon "parole" under a "suspended" sentence at the precise moment that some other and no more guilty defendant in another branch of the same court is being sentenced to prison for three, five or even ten years at hard labor. That most able and practical of English criminal judges, Sir Henry Hawkins, has this to say in his reminiscences in the matter of sentences of convicted persons: "The want of even an approach to uniformity in criminal sentences is no doubt a very serious matter, and is due, not to any defect in the criminal law (much as I think that might be improved in many respects), but is owing to the great diversity of opinion, and therefore of action, which not unnaturally exists among criminal judges.... "The result of this state of things is extremely unsatisfactory, and the most glaring irregularities, diversity and variety of sentences are daily brought to our notice, the same offence committed under similar circumstances being visited by one judge with a long term of penal servitude, by another with simple imprisonment, with nothing appreciable to account for the difference. "In one or the other of these sentences discretion must have been erroneously exercised.... Experience, however, has told us that the profoundest lawyers are not always the best administrators of the criminal law...." Sir Henry likewise speaks of the great intellectual difficulty of a conscientious English judge in trying to determine for himself the amount of punishment he should inflict in any given case. The English bench occupies an altitude practically unknown in this country. Access to it is far less easy than with us, and the personal, familiar, and off-hand method of communication between the judge and the bar, not to mention interested outside parties, witnesses, and relatives of the defendant, in vogue in our trial courts would hardly be viewed there with favor. It is the wholesale attempted interference with the action of the judges in our criminal courts that imparts a flavor of indecision and arbitrariness to so many scenes upon a sentence day. It is not unheard of to see a prisoner actually at the bar awaiting sentence while the judge upon the bench holds a sort of open levee, free to all comers, in which the prisoner's lawyer, his wife, the officer who made the arrest, the complainant, and the district attorney (and sometimes others who have far less claim to be heard) endeavor to bring the judge to their own particular way of thinking, and harangue him and each other in tones by no means always either deferential or amicable. Meanwhile the judge who will permit any such performance sits with an expression of exasperated indecision, and usually finally ends the matter by "remanding" the prisoner for further investigation. Such scenes are calculated to bring the administration of justice into contempt. Snap-shot judgments formed in the midst of an altercation may be unfair to the defendant and frequently are so to the People. A judge who tries to please everybody ends by pleasing nobody and makes a farce of justice. The administration of the criminal law is not a pleasing matter nor is it conducted for the purpose of pleasing the various parties. The judge is there to attend to his own business and make his own decisions. The writer once heard a judge inflict sentence in the following manner: "Your counsel says sentence ought to be suspended upon you. The district attorney says you ought to get five years in State's prison. Well, I'll split the difference and send you to the Elmira Reformatory." The sentence may have been the result of a conscientious and careful attempt upon the part of the judge to decide the question, but the phraseology in which it was couched will hardly commend itself as a standard. A thousand indefinite factors enter into the determination of the exact amount of punishment to be meted out to an offender, and relatively trivial circumstances may eventually decide whether the stroke of the judge's pen in his sentence book shall swerve from a "three" into a "five." Assuming that the judge have the rectitude of a granite monolith and be impervious to influence of every sort, he is nevertheless compelled when inflicting sentence to depend in large measure upon "hearsay" testimony and evidence that could not possibly be admitted upon actual trial. He seeks to find out if he can what the past record and reputation of the defendant have been, and in so doing often is forced to rely almost entirely upon the word of the officer who originally made the arrest. If the latter be vindictive he can easily convey the impression that the defendant is a man of the worst possible character who has hitherto had the luck to escape being caught. In most cases the prisoner has little opportunity to traverse these vague and generally unheard allegations. Again it often happens that he has been previously arrested. This fact is of course excluded upon the trial for his present crime upon the common-sense doctrine that the fact of his former arrest of itself proves nothing whatever as to his guilt or innocence of the charge upon which he was thus arrested. When, however, he comes up for sentence it is frequently considered by the court, no matter what the subsequent disposition of the case against him may have been, on the general assumption that "where there is so much smoke there is generally a little fire." If he has actually been convicted before, the fact weighs heavily against him. Almost anything may be presented for the consideration of the judge, however remote its connection with the crime of which the defendant has been convicted, and either as militating for or against the prisoner. Affidavits, letters, newspaper clippings and memoranda are submitted tending to show that he is of either good or bad character, has had a reputable or a disreputable past, has or has not committed or attempted to commit other crimes, or is or is not likely to "reform." Often these may have a good deal of weight, but the persons who present them are almost never sworn or placed upon the witness-stand or the defendant or prosecutor given a chance to cross-examine them as to their accuracy. The mere attitude of complainants, obviously an entirely immaterial matter, is also often a considerable factor in determining how the prisoner shall be disposed of. If they are vindictive and anxious to "make an example" of the offender it may happen that they will persuade the judge honestly to believe that a heavy sentence should be inflicted, whereas if they are sorry for the prisoner and his family and are willing to "give him another chance," and intercede strongly for him, the judge may "suspend sentence" upon the same man. Now the attitude of the parties wronged is largely determined by the character and disposition of the parties themselves, and of course in many cases has no relation whatever to the real rights of the case. For example, a half-drunken laborer lacking the money to buy liquor may wander into an area and cut away a strip of copper water-spout belonging to some old lady. He sells it for a few cents and then is arrested and is convicted of petty larceny. No one has any particular interest in the case and the old lady comes into court and begs for the defendant's "parole." He has hitherto led a decent life and the judge lets him go. Now, if the same man, instead of stealing a piece of pipe out of an area, finds himself in the vicinity of a freight yard and cabbages a piece of iron belonging to a railroad company, he is no sooner convicted than the attorneys for the company swarm about the judge demanding that "this wholesale pillage of corporation property" be put an end to, that an example be made of such thieves, and insisting that it is an important case where a severe sentence should be inflicted. The judge cannot be blamed if his mind is, to a certain extent, affected by the representations of these gentlemen and he may easily give the defendant six months or a year in the penitentiary. The moral guilt of the prisoner is precisely the same and so will be the significance of his punishment so far as its serving as a deterrent to himself or to others is concerned. Another instance is where a young clerk in a banking, express, or insurance office is caught pilfering. He has, to be sure, violated the trust reposed in him, but if the officers of the company are disposed to intercede in his behalf and express the belief that he "has learned his lesson" it is probable that they can persuade the judge to give the boy another chance, whereas if their attitude were otherwise he would, and perhaps very properly, be sent to Elmira or to State's prison. It thus, in many cases, lies within the power of the lawyer for a defendant, if he be assiduous, persuasive, or have influence which can be exerted upon the complainant in the case, to lessen materially the sentence of his client, who without his services would perhaps receive the maximum of punishment. The poor or friendless prisoner, who cannot pay for able or indefatigable counsel, inevitably suffers in consequence, for his _defence to punishment_ after trial cannot be adequately presented. His guilt is the same. Another matter, frequently entirely fortuitous, which yet may affect the question of punishment, is the fact of restitution. Where a prisoner has been guilty of embezzlement or theft and afterwards returns the money it is almost inevitably taken into consideration when sentence is imposed. Naturally it is apt to affect the attitude of the complainant in the highest degree. Now, if the offender be merely foolish, he very probably has spent the money he has stolen in gambling or feasting, while if he be shrewd and cunning he has laid it by until he can accumulate enough to go to South America. In the latter case he can be made to disgorge; in the former he cannot, and is often far worse off when he comes to be sentenced than if he had been more criminally minded. From what has been said the reader should not infer that the majority of sentences are excessive. In point of fact the leniency of most of our judges is surprising, and when they err it is invariably upon the side of mercy.[35] The sentences actually inflicted are often so short that they must seem to the average layman almost trivial, and the number of cases in which sentence is "suspended" and the offender paroled in the custody of the Prison Association is almost seventy-five per cent of the total number of first convictions. The reasons for this leniency are varied. Primarily it is because the judge realizes that it is not so much the length of imprisonment as the fact that the defendant is imprisoned at all that, in the majority of cases, acts as a deterrent upon that particular offender and upon those to whom his conviction is calculated to serve as an example; secondarily, it is due to the sentimental attitude of society towards criminals of all varieties; and, lastly, to an appreciation of the unfortunate inequality of punishment, and the difficulty in adequately and justly determining what weight should be given to hearsay evidence as to the convict's past history. In some instances leniency may arise from other and less creditable sources, such as sheer cowardice in defying influence, political or otherwise, the desire to curry popular favor in the hope of subsequent preferment in office, or possibly from the hope that if a light sentence is inflicted the case will not be appealed and the conviction reversed. This dread of reversal in the case of some judges amounts almost to hysteria, and there are well-known instances in which judges in the criminal courts have stood heroically by the district attorney and the People with the result that some scoundrel of great political influence has been convicted, and have then completely nullified the effect of their good conduct by weakly suspending sentence or by inflicting one so slight as to arouse the amusement and contempt of even the defendant himself. The ultimate object of the proper administration of criminal justice is to sustain and increase the general respect for law. If it result in a lessened regard for law by engendering a belief that its officers are weak, cowardly, venal, or ineffective, it is a failure. The adjuration therefore to avoid even the appearance of evil applies strongly to all members of the bench. Nothing conduces more to lawlessness than a popular impression that criminal judges are incapable, "easy," or are subject to influence. A judge who, it is supposed, can be "reached," is an incentive to crime. Now it is highly improbable that any judge is ever "reached." Our judges are honorable men. But once let an impression to the contrary get abroad among criminals and the same result follows as if the judge were actually "crooked." If a judge is supposed to be amenable to influence, the criminal will assume that his own particular pull will be effective. As an illustration, let us suppose that one of a band or "gang" of young toughs has been apprehended in making a vicious assault which might well have resulted in murder. Perhaps he has been paid fifty or a hundred dollars to "knock out" (kill) his victim. He receives a fair trial and is convicted. He deserves all he can get--ten years. Instead he is sent to the Elmira Reformatory. The rest of the gang, with their hangers-on, amounting in number very likely to forty or fifty youths and men, are immediately convinced either that they have been able to influence the judge through their political friends or that he and his associates are "easy." "Going to Elmira" is nothing in their eyes; and the conviction of their comrade results in no deterrent effect upon them whatever. He becomes a clever hero. Any one of them is ready to undertake the same job at the same price. If his conviction be reversed and he be set at liberty they conclude that in addition the authorities are incapable and that they can "beat the case" any time they happen to be caught. The effect of an important conviction reversed in its effect upon lawless sentiment cannot be overestimated. A sense of judicial propriety is one of the most to be desired qualities in a judge. The slightest suspicion that he is giving ear to voices from behind the dais nullifies his effectiveness and destroys popular respect for the law which he may perhaps in fact enforce with ability and justice. The sight of a politician emerging from a judge's chambers may baselessly destroy the latter's influence for good. Actual infractions of judicial propriety should be visited with the utmost severity. Prescott speaks of the jealousy of the Aztecs of the integrity of their bench: "To receive presents or a bribe, to be guilty of collusion in any way with a suitor, was punished in a judge with death. Who or what tribunal decided as to his guilt does not appear. In Tezcuco this was done by the rest of the court. But the king presided over that body. The Tezcucan prince, Nezahua Epilli, who rarely tempered justice with mercy, put one judge to death for taking a bribe, and another for determining suits in his own house,--a capital offence, also, by law." Perhaps this was going too far. "The judges of the higher tribunals," he continues, "were maintained from the produce of a part of the crown lands, reserved for the purpose. They, as well as the supreme judge, held their offices for life. The proceedings in the courts were conducted with decency and order. The judges wore an appropriate dress, and attended to business both parts of the day, dining always, for the sake of despatch, in an apartment of the same building where they held their session; a method of proceeding much commended by the Spanish chroniclers, to whom despatch was not very familiar in their own tribunals." We can appreciate to a considerable extent the emotions of the Spanish chroniclers. Judges often dine together, but not always for the sake of despatch. The writer has no hesitation in affirming that disregard of the comfort and time of jurors and witnesses is the most obvious fault of certain of them. Some judges occasionally adjourn court from one until two and make their own appearance any time before three. It is small consolation to a juror nervously distracted by waiting to find that the judge expects conscientiously to make up the time thus lost by keeping the jury at work until five. In most instances, however, the judges are more punctual and business-like than the jurors and counsel who appear before them. Some judges occasionally seem to feel that the benefit of the "reasonable doubt" to which a prisoner is entitled before the jury remains with and should be given to him even after conviction. This sometimes manifests itself in the extraordinary phenomenon of a defendant who has stood trial and perjured himself in his own behalf receiving a less severe sentence than his co-defendant who has pleaded guilty and saved the county the expense and labor of a trial. There was once a case where this occurred in which two of the perpetrators of a brutal robbery pleaded guilty and received seven years apiece, while their "side-partner," after being convicted before a jury, was given five years by another judge. It was not in this case, but an earlier one, in which a judge, obviously on the theory of reasonable doubt, addressed the prisoner substantially as follows: "Young man, you have been convicted by a jury of your peers after a fair trial. Your offence is a heinous one. You took the stand and perjured yourself, asserting your innocence. I might inflict a severe punishment. Still, under all the circumstances, _and in view of your claim that you are not guilty_, I will suspend sentence." The reader should not and will not assume that these instances of unequal punishment and erratic clemency are set forth for the purpose of illustrating the usual course of justice. They are the exception, not the rule. That they sometimes occur cannot be denied. They should never occur. They are probably due frequently to utter weariness on the part of the judge, coupled with the realization that it is sometimes practically a human impossibility to get at the true inwardness of a case or know _what_ to do. Seemingly arbitrary sentences on close observation are sometimes found to be erratic only in the language in which they are phrased,--not in the amount of the punishment. The table on the opposite page shows, the writer believes, that the average sentences imposed in the various classes of crime bear a remarkably sound relation to one another. Could, however, the separate sentences be examined, an astonishing and lamentable inequality would be discovered,--an inequality which is an actual injustice, but an injustice which cannot be prevented under our present system. Unless all offences should be tried before a single judge of unvarying disposition and physical condition absolute equality could not be secured. Where they are tried before four or five different judges there will be four or five different and constantly varying factors which must be multiplied into the constants shown by the record. Some judges regard certain crimes as more detestable than others do, and some judges see greater possibilities of reformation in any given criminal than others. Some are more affected by the immorality, as distinguished from the illegality, of a given crime than others, and certain judges will take into consideration features of the case that would be entirely disregarded by their associates. ======================================================================== _Classified list of the number of persons convicted, and the average term imposed for each particular crime during the year 1907 in New York County._ MALES -----------------------------+-----+----------------+---------------- | | Aggregate | Average Term | | Term of | Each Person Offence | No. | Sentences | | +-------+--------+-------+-------- | | Years | Months | Years | Months -----------------------------+-----+-------+--------+-------+-------- Abduction | 4 | 32 | .. | 8 | .. Abandonment | 2 | 4 | .. | 2 | .. Assault, 1st degree | 4 | 27 | 1 | 6 | 9 " 2d degree | 48 | 161 | 7 | 3 | 4 Bigamy | 6 | 20 | 10 | 3 | 6 Bribery | 1 | 3 | 6 | 3 | 6 Burglary, 1st degree | 5 | 94 | 7 | 18 | 11 " 2d degree | 30 | 187 | 5 | 6 | 3 " 3d degree | 120 | 385 | 2 | 3 | 2 Blackmail | 4 | 17 | 6 | 4 | 4 Carrying burglar's tools | 6 | 23 | 4 | 3 | 11 Carrying concealed weapons | 9 | 34 | .. | 3 | 9 Election law | 8 | 26 | 1 | 3 | 3 Extortion | 6 | 14 | 6 | 2 | 5 Felony (N.C.) | 2 | 12 | .. | 6 | .. Forgery, 1st degree | 2 | 10 | 6 | 5 | 3 " 2d degree | 13 | 63 | 2 | 4 | 10 " 3d degree | 3 | 10 | 3 | 3 | 5 Grand larceny, 1st degree | 38 | 209 | 8 | 5 | 6 " " 2d degree | 146 | 478 | .. | 3 | 3 Kidnapping | 3 | 44 | 1 | 14 | 8 Maiming | 1 | 2 | .. | 2 | .. Manslaughter, 1st degree | 11 | 165 | 1 | 15 | .. " 2d degree | 3 | 30 | 9 | 10 | 3 Murder, 1st degree | 3 |Sentenced to be executed " 2d degree | 13 | 260 |See note| 20 | .. Attempted murder, 1st degree | 1 | 24 | 6 | 24 | 6 Perjury | 2 | 19 | 5 | 9 | 8 Rape, 1st degree | 1 | 18 | .. | 18 | .. " 2d degree | 10 | 80 | 6 | 8 | .. Receiving stolen goods | 11 | 42 | .. | 3 | 10 Robbery, 1st degree | 23 | 245 | 7 | 10 | 8 " 2d degree | 6 | 59 | 2 | 9 | 10 " 3d degree | 1 | 5 | 6 | 5 | 6 Seduction | 1 | 4 | 9 | 4 | 9 Sodomy | 3 | 29 | 1 | 9 | 8 -----------------------------+-----+-------+--------+-------+-------- Total | 550 | 2,845 | 7 | 5 | 2 -----------------------------+-----+-------+--------+-------+-------- Note.--In preparing the above table, the maximum terms of all indeterminate sentences are computed, except in convictions of murder in the second degree, in which the minimum terms of twenty years are used. (Section 187. Penal Code.) STATE PRISON--FEMALES --------------------------+-----+----------------+--------------- Offence | No. | Term of | Average Term | | Sentence | of Sentence | +-------+--------+-------+------- | | Years | Months | Years | Months --------------------------+-----+-------+--------+-------+------- Assault, 2d degree | 5 | 13 | 10 | 2 | 9 Grand larceny, 1st degree | 7 | 40 | 3 | 5 | 9 " " 2d degree | 7 | 23 | 8 | 3 | 4 Manslaughter, 1st degree | 1 | 7 | 5 | 7 | 5 " 2d degree | 1 | 13 | 6 | 13 | 6 Receiving stolen goods | 1 | 5 | .. | 5 | .. Robbery, 1st degree | 1 | 3 | 6 | 3 | 6 --------------------------+-----+-------+--------+-------+------- Total | 23 | 107 | 2 | 4 | 8 --------------------------+-----+-------+--------+-------+------- This divergency of mental attitude accounts in part for the great curse of the inequality of sentences. Two cases suggest themselves vividly as examples. A conductor on a surface car took the place of the motorman and carelessly ran into a wagon, throwing out the driver, who died in consequence. He was convicted of manslaughter in the _second_ degree and sentenced to ten years in State's prison. Another defendant who had killed a woman by cutting her throat and hacking her up with a razor was convicted of the _first_ degree of the same crime and sentenced to _the Elmira Reformatory_. Both defendants were of approximately the same age. In each case the particular sentence seemed just and fair to the judge who presided at the trial. It was conscientiously imposed. Yet the thing speaks for itself. It has sometimes been suggested that all sentences should be imposed by all the judges sitting _en banc_. While this would entail great labor and expense it would undoubtedly, if it were practicable, do much to obviate the present unfortunate condition. Assuming that four judges composed this sentencing board, the vote of the justice who had presided at the trial might, by virtue of his greater familiarity with the facts, be given a weight equal to that of the other three combined. Had the two sentences just named been imposed by such a board it is far from probable that they would have been inflicted in the same terms. An effort has been made in the preceding pages to set forth some of the failings of criminal justice on the part of the court which seem open to honest criticism. The members of the bench themselves would be the last to minimize the injustice of the inequality of sentences which under our present system seems inevitable, and are continually endeavoring to remedy it so far as possible. They also recognize the fact that it is often difficult, if not out of the question, to preserve in the face of overwhelming evidence an imperturbable serenity of demeanor when the fact of the defendant's guilt is clear and the details of his crime are revolting to every moral sense, and they are equally ready to acknowledge that on occasion they may inadvertently disclose their impression that while they may "let a case go to the jury," the defendant should be acquitted. Judges are, after all, but men, and to err is human. But there is hardly a judge upon the bench who does not conscientiously strive to perform his duties in such a way that justice may be secured in the manner provided by the Constitution,--by leaving the jury untrammelled in their function of determining upon the sworn evidence in the case the guilt or innocence of the defendant. Finally it should be said that it is not the weak but the strong judge that is most apt to transgress in this direction, and that it is the strong judge who is most likely to serve the best interests of the community. For the weak judge there is no place in the administration of criminal justice. His presence upon the bench is an incentive to crime and a reproach to his fellows. FOOTNOTES: [Footnote 35: Cf. "Light Sentences and Pardons," by Frederick Bausman, 39 American Law Rev. 727.] CHAPTER XI THE JURY Is trial by jury successful in criminal cases? Certainly it is popularly so regarded. Even lawyers and prosecutors will usually agree that it "works substantial justice," but this does not answer the question. In about three cases out of five "Judge Lynch" himself works "substantial justice." The function of the jury is not to "work justice" at all, but to decide a limited question of fact. They are there for the purpose of determining the issue without prejudice on the one hand or sympathy upon the other, and having no regard for the consequences of their verdict; they must accept unquestioningly the law from the judge upon every point and base their conclusions solely upon the sworn evidence in the case. This they swear that they will do. Yet they do not. Why? Is it want of intelligence, lack of regard for law, or vital misconception of their function? Certainly it is not from want of intelligence. There can be no question as to the capability of the ordinary juryman to perform his duties. The independent American is singularly adapted to just this form of investigation. If the English be "a nation of shopkeepers," we are a nation of natural cross-examiners. You will find fully as good verbal fencing in a New England corner grocery store about mail time as you will in most courts of justice. But the very innate capacity of the native American to perceive the truth and get to the bottom of things, leads him to believe that he knows equally well, if not better than the judge, what ought to be done about it and what punishment, if any, should be inflicted upon the defendant under the circumstances. It is not that our jurors are incapable or uninterested, but, paradoxical as it may seem, that they are too capable and too interested. They want to be not only jurors, but district attorney, counsel for the defendant, expert witness, and judge into the bargain. Your shopkeeper in England makes a less intelligent, but a far more satisfactory juror. There they will empanel a jury in a few moments in a capital case, and so deeply implanted in the bosom of each juryman is a respect for the law as such and an inherited reverence for the judiciary, which its uniformly high character has done so much to foster, that, provided the facts are sufficiently established, the sex of the defendant, the condition of his or her family, the character of the motive for the act, will not be the subject of discussion or even of consideration in determining the verdict. It is enough that they are sworn to decide the facts and the facts alone. They are told by the judge what evidence they may consider, and what facts they _may not_ consider, and did they not obey his instructions they would receive the severe censure of the public and the press. There is an historical reason for this. In 1666, when a jury found a verdict of manslaughter after having been instructed that the evidence showed that it was murder, Kelyng, C.J., promptly fined them five pounds apiece. On petition, he reduced it to forty shillings, "which they all paid." In 1667 he fined eleven of the grand jury twenty pounds apiece for refusing to indict for murder. The judges of the King's Bench said he was quite right, adding, "and where a petty juror, contrary to directions of the court, will find a murder manslaughter, ... yet the court will fine them" (King _vs._ Windham, 2 Keble, 180). For centuries it was the common practice to punish severely by imprisonment, fine, and attainder juries who refused to convict on what appeared to the court to be sufficient evidence. Perhaps Throckmorton's case in 1554, when the jury acquitted the defendant of treason, is the most famous illustration of this. The court committed the jury to prison, eight being confined from April 17 to December 12, and on their discharge fined them, some sixty and some two hundred and twenty pounds apiece. The reasoning under the circumstances was obvious. If a jury found a man guilty improperly, he could be pardoned, but "if, having pregnant evidence, nevertheless, the twelve do acquit the malefactor, which they will do sometime ... the prisoner escapeth...." It is refreshing to observe that even English juries "will do [this] sometime." All this naturally created, as it was designed to create, a tremendous regard for the judge and his instructions. There is at the present time little of this wholesome regard for law in America. The jury realize that the judge's elevation to the bench is often a matter of politics alone, and sometimes have comparatively little respect for his character, learning, or ability. They frequently feel by no means confident that the punishment will fit the crime, and are anxious, so far as they can, to dispose of the case for themselves. For example, in one case where three defendants were found guilty of stealing in company a single article of value, the jury rendered a verdict of grand larceny in the first degree against one, grand larceny in the second degree against another, and petty larceny against the third. They did this because of the varying ages of the defendants, but in so doing obviously violated their oaths and usurped the functions of the judge. Very likely "substantial justice" was accomplished. There are hundreds of jurors who, having in all honesty taken the oath to "a true verdict find," will, once in the jury-room, frankly turn to their fellows and exclaim: "Oh, let him go! He's only a kid. Give him another chance!" "Substantial justice," again at the expense of our regard for law. As an example of what may occur, the case of Rosa di Pietro, tried for murder before the Recorder, in December, 1904, is illuminating. The defendant was a young Italian woman of good repute charged with shooting and killing her brother-in-law, who, the evidence clearly showed, had endeavored to persuade her to yield to his desires. She claimed to have shot him in self-defence. Her story was so obviously a fabrication that no jury could have believed her, and must have found (if they had considered the matter at all) that she pursued her would-be seducer down the stairs and shot him in a dark hallway, as he was leaving the building. A "special" jury of perfectly intelligent men promptly acquitted her. The writer presumes that after this all the Italian residents will get their wives to do their killing for them. In a well-known case the jury found the defendant guilty of manslaughter, instead of murder, because one of their number had read that the prisoner had been a "Rough Rider" in the Cuban campaign. After they had returned their verdict they learned that he had been nothing of the kind. The action of the New York County jury in a criminal case is right as to the defendant's guilt or innocence about four times out of five, but less frequently as to the appropriate _degree_ of crime.[36] The percentage of proper verdicts differs, of course, in different varieties of crime. In cases of common felony, such as larceny, burglary, rape, robbery, arson, forgery, etc., it is usually high; in homicides and gambling much lower; and in commercial frauds and liquor-tax cases smaller still, the number of convictions being inconsiderable. Making due allowance for the unconscious prejudices, sympathies, and idiosyncrasies of mankind, we have still, as citizens, a right to demand a far higher degree of accuracy in the verdicts of our juries--to expect the murderer to be found guilty of murder and the thief to be stigmatized as a thief. What is the explanation for this? The fundamental reason for the arbitrary character of the verdicts of our juries lies not in our lack of intelligence as a nation, but in our small regard for human life, our low standard of commercial honesty, our hypocrisy in legislation, our consequent lack of respect for law, and the general misapprehension that the function of the jury is to render "substantial justice"--a misapprehension fostered by public sentiment, the press, and even in some cases by the bench itself, to the complete abandonment of the literal interpretation of the juror's oath of office. The writer has heard judges from the bench congratulate juries upon having rendered a "merciful verdict"! They are popularly expected "to temper justice with mercy," "exercise a wise discretion," and "to be moved to magnanimity." But the jurors who satisfy their emotions at the expense of their honesty, and the judge who countenances the performance, are worse law-breakers than the defendant himself. We carry upon our statute books laws which we have no intention of enforcing, and which, in our present state of development, are actually unenforceable. Even law-abiding, law-loving, and (ordinarily) conscientious jurors will become lawless when compelled to sit in a case of this character. Thus while the three judges of Special Sessions find guilty some sixty per cent of those brought before them for violations of various phases of the liquor-tax law, a conviction by a jury in the General Sessions is practically unheard of. The grand jury have now reached the point where they practically refuse to indict at all in liquor-tax cases.[37] Just as long as we have hypocrisy in religion, in business, and in legislation, so long shall we have hypocrisy in our courts of justice. Of course, as we live in an age when violence is found inconvenient and annoying, your jury naturally condemns by its verdict crimes of a violent character, and will make but short work of highwayman and thug. Burglars are unpopular both with the public and with the juror; and it needs no burst of rhetoric to induce a jury to find a verdict against a "firebug" or a "cadet." But once step into that class of cases, the subject of which is commercial fraud, and the jury look upon the prosecution with averted eye. Just so long as dishonesty of one kind or another is openly countenanced in business, just so long it will be practically impossible, except under unusual conditions, to convict the fraudulent bankrupt or the retailer who has secured goods and credit upon false representations. Mayhap there is upon the jury some tradesman who has "padded" his own credit statement; some one who has placed a fictitious valuation on his stock, or has told alluring but unsubstantial stories as to his "orders on hand," "cash in bank," and "bills receivable." What chance under those circumstances of a conviction? "The jury, passing on the prisoner's life, May have in the sworn twelve a thief or two Guiltier than him they try." "Why," says a juror, "here they are trying to convict this fellow Einstein of what everybody does every day in the year. Rubbish! Am _I_ a thief! _I_ don't have any _criminal intent_. He was just tryin' to boost his assets a little. He's no criminal." And out he goes to the jury-room and persuades the other eleven that the defendant is no worse than everybody. Of course, everybody isn't a thief. The syllogism is irrefutable. "I suppose you didn't believe that Mr. Einstein made those false statements?" says the writer, approaching him as he steps into the corridor. The juror pauses in lighting his cigar. "_Sure_, he made 'em!" he remarks. "Of _course_ he _made_ 'em! But, _H--l, he's no criminal_!" This is an actual experience. Our distaste for physical violence has had a rather paradoxical result so far as the jury is concerned, for it appears to be coupled with a small (and what seems to be a decreasing) regard for human life. Verdicts of murder in the first degree are exceedingly rare, and it requires a crime of a peculiarly atrocious character to induce the jury to send the defendant to the electric chair. This is due in part to cowardice and in part to the misconception of their function already dwelt upon, since in almost all murder cases the jury regard themselves as fixing the penalty. Inasmuch as most persons who meet death from violence are themselves of violent character, the jury frequently seems to believe that the defendant is entitled to a certain amount of consideration for ridding the community of his victim, and this often finds joyful expression in a verdict of manslaughter. Totally distinct, however, from this trifling with justice, whether it be wilful or voluntary, is the unconscious bias of each member of the human family due to race, religion, education, and character. Hence jurors are examined with an elaborate care and minuteness of investigation which in practice is often shown to be ridiculous. In fact certain maxims having almost the force of legal doctrines have grown up about the selection of a jury. A defendant's counsel will invariably challenge an Irishman if his client be a negro, and vice versa. This is likewise apt to be the case if the client be an Italian. Talesmen with wives and children are generally supposed to be more susceptible to arguments directed to their sympathies. Hebrews are presumed to make particularly undesirable jurors for the defence where the crime charged is one of violence or arson, and are likewise usually challenged when the defence is self-defence. Old men are popularly supposed to make indulgent jurors, although the writer's own experience is to the contrary, and he has noticed that persons with long, drooping mustaches are invariably excused. Neither side as a rule cares for missionaries or persons engaged in philanthropic enterprises, since the prosecutor feels instinctively that their eleemosynary tendencies will extend to the prisoner, while the defence has a presentiment that they will lead him to favor the damaged complainant. Writers, editors, and publishers are generally excused by the defence as _too intelligent_, _i.e._, too prone to theoretic arguments as distinguished from a "broad view," which from the prisoner's standpoint means one including every sympathetic reason that can be suggested. Artists are distrusted by prosecutors as romantic and imaginative. Butchers, coffin-makers, sextons, grave-diggers, undertakers, and dealers in electrical supplies are invariably excused for obvious reasons by the defendant in homicide cases. Liquor dealers are believed to be prone to take a lenient view of the shortcomings of humanity in general, while persons of brisk, incisive manners naturally suggest heartlessness to the cowering defendant. The writer knows an assistant who will not try a case if there is a man with a pompadour on the jury, and neither prosecution nor defence cares for long-haired jurors of the "yarb doctor" variety, while the dapper little man with the "dickey" and red necktie is invariably excused by the defence unless the defendant be a woman. The frivolous character of these rules needs no comment. Almost every lawyer and every prosecutor believes himself to be a past master in the study of character from external evidence, and upon the most trivial and unnatural of pretexts will challenge a talesman so unfortunate as not to suit his fancy. Yet when all is done and when, after the most exhaustive examination and cross-examination of several hundred special talesmen, wrenched from their places of business or the bosoms of their families, twelve men have been finally selected and sworn, it is probable that they are in no respect superior to the first twelve who might have been chosen. In murder cases each side may challenge peremptorily thirty talesmen, and numerous are the legal "jumps" over which they must successfully ride before they can qualify for service. Thus it is unusual in a homicide case to select a jury in less than two days, and in some instances it has taken two weeks. On the other hand, equally satisfactory juries have occasionally been selected in such cases in less than an hour. The general futility of trying to secure a jury of particular capacity or intelligence, or one which will contain no juror of pronounced idiosyncrasies, is rather well illustrated by the following incident: The defendant's counsel, a man of considerable repute at the criminal bar, had spent over two days in the elaborate selection of a jury. It had taken him two hours to get a foreman to his fancy, but at last he had accepted a solid-looking old German grocer. After a trial lasting several days the jury convicted the defendant in short order, greatly to the disgust of the eminent lawyer, who vented his indignation rather loudly in the presence of the foreman as he was leaving the box. The old German leaned over good-naturedly and remarked, pointing to the door in the back of the court-room leading to the prison pen: "Vell, Mr. ----, if you vant to know vat I tinks, I tells you. Ven I see him come in through dot leetle door back dere, den I _knows_ he's guilty!" This lawyer now selects a jury in thirty minutes. Of course, some examination into the general qualifications of jurors and their possible bias in the case is imperative, and frequently the interposition of a peremptory challenge is not only justifiable, but absolutely necessary. A talesman will sometimes betray by an inflection of his voice a sentiment or prejudice which his _words_ deny, or suggest to the vigilant counsel for the defendant the juror's susceptibility to the insidious flattery of the prosecutor in making him a part of the "organization of the court." During the selection of a jury to try Moran, the dynamiter, in March, 1906, before Judge Foster, in the General Sessions, a little old man took the stand who qualified satisfactorily as a juror so far as the prosecution was concerned. Daniel F. Cohalan, attorney for the defendant, then took him in hand somewhat as follows: "Have you any prejudice against a man accused of crime?" "I have not," replied the little old man. "Or against this defendant?" "I have not." "Do you think you would make an absolutely fair and impartial juror?" "I do." "Do you know of any reason to the contrary?" "I do not." Cohalan turned to another line of examination. "Do you read the papers?" "Yes. Yes." "What paper do you read?" "What paper?" "Yes. What paper do you read in the morning?" The little old man settled himself in his chair and, eyeing Cohalan suspiciously, replied: "I read the _Herald_, _Times_, _World_, _Journal_, _Sun_, _Tribune_, _Press_, _Staats Zeitung_, _Telegraph_----" "Stop!" cried Cohalan feebly; "that's quite enough. Don't you do anything but read the papers?" The little old man regarded the lawyer scornfully. "I spend six hours a day keeping myself informed of what is going on. I flatter myself that there is nothing in the whole world with which I am not fully acquainted. Knowledge is power!" Cohalan collapsed into his seat. "That is all. You are excused. You know too much for us!" As the little old man shuffled off he whispered to the prosecutor: "I'd have given the ---- twenty years!" On the other hand, the hyper-sensitiveness of counsel renders it easy for talesmen to escape who do not wish to serve. The writer knows an estimable man who is regularly drawn about four times a year upon the special jury. He has never served. His method is as follows: Having taken his seat upon the witness-stand he wrinkles his forehead and looks fiercely at the defendant. When asked if he has any objection to capital punishment he thrusts out his under jaw and exclaims: "I should _say not_! I think hangin's too good for 'em!" In reality he is the mildest, the most sympathetic and the "easiest" of human beings. Another observant talesman who appears periodically has learned, the writer believes, his trick from the first. His stock reply to the same question relative to capital punishment is, "I have _not_. I believe in the Biblical injunction of 'an eye for an eye,' and 'a tooth for a tooth,' and, 'Whoso sheddeth man's blood by man shall his blood be shed.'" Needless to say, he leaves the stand with the same alacrity as the other. Jurors readily enter into friendly relations with the prosecutor and defendant's counsel, but rarely with any effect upon their verdicts. In the first trial of Mock Duck, a Chinaman indicted for murder, where the defence interposed was an alibi, to wit, that the prisoner had been buying a terrapin in Fulton Market at the time of the commission of the crime (whence the prosecutor claimed that it was the case of a Mock Duck with a _mock turtle_ defence), a juryman met the defendant's counsel during recess and told him that there was no further need for him to call any more witnesses for the defendant, as the jury "understood the situation perfectly." The lawyer took the hint, and upon the reopening of court closed his case, feeling sure of an acquittal or at least of a disagreement. When the jury had retired the talesman in question made a long speech in favor of murder in the first degree, and refused to vote for any other crime. Such performances are rare. Of course, it not infrequently occurs that a juror by his manner of asking questions shows plainly his state of mind. The feelings of a prosecutor can be easily imagined when a juror turns in disgust from one of the People's witnesses, or those of a defendant's counsel when another, looking towards the prisoner, grinds his teeth as the evidence goes in and ejaculates, "Brute!" The jury offers a fertile field for the study of human nature, and lawyers and prosecutors learn to look regularly for certain characters. Of these may be mentioned the too officious juror who asks hundreds of incompetent and irrelevant questions to which the lawyers are naturally afraid to object, and whose inquisitiveness has to be curbed by the court itself. Such a juror usually shows much conviction one way or the other in the early stages of the case, and before he has heard the evidence. Unfortunately his executive abilities usually fill the balance of the jury with such disgust that to have a juror of this sort on one's side is more of a misfortune than a boon. Jurors of this variety frequently at inopportune moments interrupt counsel during their addresses. In one case an aggressive talesman broke in upon a burst of carefully prepared eloquence with the brutal interrogation: "How about the _knife_?" The counsel stopped, bowed to the juror, smiled, and said calmly: "Thank you, Mr. Smith, I'm _glad_ you spoke of that. I am coming to it in a moment." The juror, satisfied, leaned back contentedly, but the lawyer has not "come" to the knife yet. Practically the thing most desired by prosecutors and lawyers who are both convinced of the justice of their cause is homogeneity of some sort in the jury-box. Naturally antagonistic elements are undesirable, and a wise selector of juries will try to get men of approximately the same age, class in society, nationality, religion, and general character. Of course, this is a difficult matter, but without a friendly and helpful spirit among the jurors cases will result frequently in disagreements. This is naturally less objectionable to the defendant than to the People, for ordinarily it may be said that "two disagreements are equivalent to an acquittal." The common idea that juries are prone to leave their decisions to chance, as by flipping a coin, or to act upon impulse, whim, caprice, or from a desire to get away, is grossly exaggerated. It was Pope who sang in the "Rape of the Lock": "The hungry judges soon the sentence sign, And wretches hang, that jurymen may dine." Unfortunately, if the jury is hungry or exhausted and anxious to dispose of the case, the defendant invariably gets the benefit of it. The "wretches" don't "hang," but instead are turned out with a rush. Instances of verdicts being determined by such considerations are in fact rare. Much of the seeming misguidedness of juries in criminal cases is due, just as it is due in civil cases, to the idiosyncrasy, or the avowed purpose to be "agin' the government," of a single talesman. In an ideal community, no matter how many persons constituted the jury, provided the evidence was clear one way or the other, the jury would always agree, since they would all be honest and reasonable men. But just as a certain portion of our population is mentally unbalanced, anarchistic, and criminal, so will be a certain portion of our jurors. In addition to these elements there will almost invariably be found some men upon every panel who are so obstinate, conceited, and overbearing as to be totally unfit to serve, either from the point of view of the people or the defence. It is enough for one of these recalcitrant gentlemen that eleven other human beings desire something else. That settles it. They shall go his way or not at all. The writer believes, therefore, that some allowance should be made for the single lunatic or anarchist that gets himself drawn on about every fifth jury, for if he once be empanelled a disagreement will inevitably follow. This could be accomplished by reducing the number necessary for a verdict to eleven.[38] Hundreds of juries have been "hung" by just one man.[39] The trouble, as Professor Thayer points out, began a long, long time ago in a case reported in the Book of Assizes in 1367. "In another assize before the same justices at Northampton, the assize was sworn. They were all agreed except one, who would not agree with the eleven. They were remanded and stayed there all that day and the next, without drink or food. Then the judges asked him if he would agree with his associates, and he said never,--he would die in prison first. Whereupon they took the verdict of the eleven and ordered him to prison, and thereupon a day was given upon this verdict in the Common Bench. ... And afterwards by assent of all the justices it was declared that this was no verdict. It was therefore awarded that this panel be quashed and annulled, and that he who was in prison be enlarged, and that the plaintiff sue a new venire facias.... _Note, that the justices said they ought to have taken the assize with them in a wagon until they were agreed._" How much happier would not only the eleven, but the twelfth juror, who swore he would "die first," have been if, unanimity not being required, they could comfortably have agreed to disagree and yet returned to court and rendered a verdict. A jury naturally tends to lean towards the defence--to let the accused go if they can conscientiously do so; to find somewhere a reasonable doubt as to the prisoner's guilt--and it is only because the cases are so well sifted before they come to trial at all, and the wheat separated from the chaff (the defendants in very weak cases being frequently discharged on the recommendation of the district attorney himself), that the percentage of acquittals is not vastly greater. This natural feeling of sympathy for the accused makes it all the easier for juries to be affected consciously or unconsciously by considerations they have sworn to disregard. Then if the defendant be a woman, or a poor man with a large family, or his crime has injured no one's purse, or restitution has been made, or if the offence charged is merely that of swindling by means of false representations as to credit, or the defendant is very young or very old, or wears a clean collar, or has an attractive personality, or, better, a beautiful wife, he is turned out with a cheer. "For twelve honest men have decided the cause, Who are judges alike of the facts and the laws." Yes, the jury system in criminal cases is a "practical success"--and it "works substantial justice." It works the exact justice that we want--the exact justice that we deserve. As we grow to have a greater respect for human life and a higher regard for law and honesty, the verdicts of our juries will continue to keep pace with our condition. Then we shall want something better, and we shall have it. The day will come when dishonesty in business will lead to the ball and chain as assuredly as arson and rape. But the time is not yet. Then juries will decide the issues submitted to them upon the evidence alone, without prejudice or sympathy, in accordance with the laws which they are sworn to uphold, without truckling to popular sentiment or fear of newspaper disapproval; then they will allow the judge to perform the functions vested in him by law without usurpation by their verdicts; and will "true deliverance make" between the People on the one hand and the defendant on the other. Then there will probably be no need for juries--for there will be no criminals.[40] FOOTNOTES: [Footnote 36: This estimate does not apply to the actions of juries outside of New York County. In other cities and in other states, particularly in rural districts, the percentage of convictions is often shockingly small.] [Footnote 37: The following figures may be of interest to those readers who are interested in the question of amending the laws governing the sale of liquor: In the year 1907, out of a total of 1,237 cases which came before the Court of Special Sessions, there were 334 convictions, 7 pleas of guilty, 223 acquittals, 18 discharges and 116 transfers to the General Sessions. During the last eight years, out of a total of 7,416 cases, there were 3,129 convictions, 244 pleas of guilty, 2,143 acquittals, 395 discharges, 361 demurrers allowed and 1,144 cases transferred, on the defendants' motion, to General Sessions, to be tried under indictment. During this period, very nearly half the cases have resulted in convictions. These cases were tried, as the reader is aware, by a bench of three judges, who decide both law and fact. Compare this record with the result of 91 transfers, taken as illustrative, from the Special to the General Sessions in 1905. Of course, each case had to be taken first before the grand jury. Eighty-four of these cases were summarily dismissed by that body. In the remaining seven instances, indictments were secured. Four of these seven defendants pleaded guilty, two were acquitted by the jury, one was discharged on his own recognizance and none were convicted. In other words, out of the whole bunch of transfers, less than four per cent of the defendants were convicted, as against nearly fifty per cent of convictions in the Special Sessions, in all liquor-tax cases in the last eight years. In the same period, out of a total of 1,241 cases presented to the grand jury, 987 were dismissed by that body. Of the balance, viz., 254 in which indictments were secured, 25 pleaded guilty, 36 were discharged on their own recognizances, in 12 cases the bail was forfeited, and of the 181 cases which actually were tried before juries, 165 defendants were acquitted and 16 were convicted. In 1906, out of 85 cases transferred, 79 were dismissed, and of the remaining six, 5 defendants were acquitted and 1 was discharged. In 1907 there were 98 transferred and _all were dismissed_ by the grand jury. The significance of these figures becomes evident when it is realized that the defendants whose cases are thus transferred are those who are the actual holders of licenses. They can afford to pay for the services of counsel, and their conviction is of vastly more importance to the community than that of their hirelings who actually sell the liquor over the bar. The barkeeper who violates the law and is caught, comes to trial in the Special Sessions, either pleads guilty or is convicted, and receives a fine which his employer promptly pays. The owner of the saloon thereupon discharges the defendant from his service and secures another barkeeper. This process can be continued indefinitely. But when the owner himself is caught and convicted, he is either driven out of business or has got to operate under another name. These are the men who apply for and are apparently able to secure transfers of their cases to the General Sessions, although any judge granting such motions is, or, at least, should be, aware of what the practical result of his action will be. The transfer of a liquor-tax case upon the order of the judge sitting in Part I of the General Sessions is practically tantamount to a dismissal of it.] [Footnote 38: Whatever the actual origin of the number twelve for this purpose there certainly lingered in olden times a feeling that it had a sacred or foreordained character, and in Duncomb's Trials _per pais_, the following illuminating explanation is to be found: "And first as to their number twelve: and this number is no less esteemed by our law than by Holy Writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason has the law to appoint the number of twelve to try our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve. Therefore not only matters of fact were tried by twelve, but of ancient times twelve judges were to try matters in law, in the Exchequer Chamber, and there are twelve counsellors of state for matters of state; and he that wageth his law must have eleven others with him who believe he says true. And the law is so precise in this number of twelve, that if the trial be by more or less, it is a mistrial." (Cf. Thayer's Preliminary Treatise, as cited, p. 90.)] [Footnote 39: Cf. "Criminal Law and Its Administration," by Robert Earl, 2 Columbia Law Rev. 144.] [Footnote 40: Many cases result in mis-trials owing to the sickness or death of a single juror. In persecutions which it can be foreseen will be long the swearing of an _extra juror_ would obviate this difficulty. Cf. "Newspapers and the Jury," Clarence B. Smith, 17 Greenbag 223.] CHAPTER XII THE WITNESS The probative value of all honestly given testimony depends, naturally, first upon the witness's original capacity to observe; second, upon the extent to which his memory may have played him false; and third, upon how far he really means exactly what he says. This is just as true of testimony in cases of so-called circumstantial evidence as in cases where the evidence is direct, for the circumstances themselves must be testified to by witnesses who have observed them, and the authoritativeness of everything these witnesses have to say must lie in their ability to see, remember, and describe accurately what they have seen. The subject of perjury is so distinct and far-reaching that it deserves separate consideration. The crime is easy to commit and difficult to establish by competent proof, for it is a highly technical offence and one which juries seem to find it easy to condone. The brother or friend of the accused has but to take the stand and swear to an alibi and lo! he is free. The chance of detection is small in comparison with the immediate benefit secured, while the temptation to swear falsely must, at least in the case of the immediate family of the prisoner, often be overwhelming. Where convictions for perjury are secured heavy sentences are invariably imposed and a wholesome apprehension instilled into the hearts of prospective witnesses, yet the amount of deliberate false swearing in our criminal courts would be inadequately described as shocking. To estimate its quantity would be difficult if not impossible, for it varies with the character of the case and the nature of the defence. When the latter is an alibi the entire testimony for the prisoner is frequently manufactured out of whole cloth, and it is probably not very wide of the mark to say that anywhere from a quarter to seventy-five per cent of the testimony offered by the defendant's witnesses _upon the direct point in issue_ in the ordinary run of criminal trials is perjured. Yet a careful scrutiny of even the honestly given testimony in such cases gives rise to the belief that the amount of strictly accurate evidence adduced is relatively small, so small as probably to stagger the credulity of the layman and to give the lawyer ground for reflection. It must be borne in mind, however, that this refers to criminal trials only and to testimony of a character closely relevant to the issue. The first consideration is how far the witness was originally capable of receiving correct impressions through his senses. Naturally this depends almost entirely upon his physical equipment and the keenness and accuracy of his general observation, both of which are usually evidenced to a considerable degree by his appearance and conduct upon the stand. Children are proverbially observant, and make remarkable witnesses, habitually noticing details which inevitably escape the attention of their elders; while various classes of persons by reason of their professional requirements are, of course, better qualified than others to observe certain facts or conditions, as a gem merchant the shape and cutting of a diamond, or a doctor the physical condition of a patient. Witnesses are often honestly mistaken, however, as to their own ability to observe facts, and will unhesitatingly testify that they could hear sounds and discern objects at extraordinary distances. Lawyers frequently attempt to induce aged or infirm witnesses to testify that they could hear plainly what was said by the defendant, in an ordinary tone, at a distance, say, of forty feet. The lawyer speaks in loud and distinct tones during the preliminary examination, and then gradually drops his voice to that usually employed in speaking, in the hope that the witness will ask him to repeat the question. This ruse usually fails by reason of the fact that the lawyer, in his anxiety to show that the witness could not possibly hear the distance claimed, lowers his voice to such an extent that the test is obviously unfair. For similar reasons counsel often call upon such witnesses to state the time by the clock which usually hangs upon the rear wall of the court-room. A distinguished but conceited advocate, not long ago, after securing an unqualified statement from an octogenarian, who was bravely enduring cross-examination, that he "saw the whole thing as if it had occurred ten feet away," suddenly challenged him to tell the time by the clock referred to. The lawyer did not look around himself, as he had done so about half an hour before, when he had noticed that it was half after eleven. The old man looked at the clock and replied, after a pause, "Half-past eleven," upon which the lawyer, knowing that it must be nearly twelve, turned to the jury and burst into a derisive laugh, exclaiming sarcastically, "That is _all_," and threw himself back in his seat with an air of having finally annihilated the entire value of the witness's testimony. The distinguished practitioner, however, found himself laughing alone. Presently one of the jury chuckled, and in a trice the whole court-room was in a roar at the lawyer's expense. The clock had stopped--at half-past eleven. The professional actor upon the stage presents the _illusion_ of nature by exaggerating those details of action which ordinarily would escape the attention of the observer. In daily life we are quite as likely as not to be deceived by what we have seen, and this fact is so familiar to jurors that they are apt to distrust witnesses who profess to have seen much of complicated or rapidly conducted transactions. They want the main facts stated convincingly. The rest can take care of themselves. The extraordinary extent to which the complex development of modern life has dwarfed our powers of observation is noticeable nowhere more markedly than in the court-room. Things run so smoothly, transportation facilities are so perfect, specialization is carried to so high a degree, and our whole existence goes on so much indoors, that it ceases to be a matter of note or even of interest that the breakfast is properly cooked and served, that we are whisked downtown (a little matter say of five miles) in ten or twelve minutes, that we are shot up to our offices through twenty floors in an electric elevator, that there is a blizzard or a deluge, or that part of Broadway has been blown up or a fifteen-story building fallen down. We pass days without paying the remotest attention to the weather, and forget that we have relations. Instead of walking home to supper, pausing to talk to our friends by the way, we drop into the subway, bury ourselves in newspapers, and are vomited forth almost without our knowing it at our front doorsteps. The multiplicity of detail deprives us of either the desire or the capacity to observe, and we cultivate a habit of not observing lest our eyes and brains be overwhelmed with fatigue. Observation has ceased to be necessary and has taken its place among the lost arts. Compare the old days when a Greek could go to hear the "OEdipus," and on returning home could recount practically the whole of it from beginning to end for the benefit of the wife, who was not allowed to go herself, or even the comparatively recent period when the funeral oration over Alexander Hamilton could be reported in the "Evening Post" _from memory_. Much the more difficult problem, however, is to determine how far the witness is the victim of his memory and is unconsciously confusing fact with imagination, or knowledge with belief. It is a matter of common experience that almost all cases are stronger in court than they give the impression of being when the witnesses are first examined in the private office. Time and again, cases which in the beginning have seemed hopeless to prosecute have resulted in verdicts of conviction, and defences originally so fragile as to appear but gossamer have returned many a defendant to his despairing family. The reason is not far to seek. Witnesses to the events leading up to a crime are acquainted with a thousand details which are as vivid, and probably more vivid, to them than the occurrence in regard to which their testimony is actually desired. It may well be that the immaterial facts are the only ones which have interested them at all, while their knowledge of the criminal act is relatively slight. For example, they _know_, of course, that they were in the saloon; are _positive_ that the complainant and defendant were playing cards, even remembering some of the hands dealt; are _sure_ that the complainant arose and walked away; _have a very vivid recollection_ that in a few moments the defendant got up and followed him across the room; are _pretty clear_, although their attention was still upon the game, that the two men had an argument; and _have a strong impression_ that the defendant hit the complainant. In point of fact, their evidence is really of far _less_ value, if of any at all, in regard to the _actual striking_ than in regard to the events leading up to it, for at the time of the blow their attention was being given less to the participants in the quarrel than to something else. Their ideas are in truth very hazy as to the latter part of the transaction. However, they become witnesses, pronouncing themselves ready to swear that they saw the blow struck, which is perhaps the fact. Their evidence is practically of no value on the question of justification or self-defence. But finding, on being examined, that their testimony is wanted principally on that aspect of the case, they naturally tell their entire story as if they were as clear in their own minds upon one part of it as another. Being able to give details as to the earlier aspect of the quarrel, they feel obliged to be equally definite as to all of it. If they have an idea that the striking was without excuse, they gradually imagine details to fit their point of view. This is done quite unconsciously. Before long they are as glib with their description of the assault as they are about the game of cards. They get hazy on what occurred before, and overwhelmingly positive as to what occurred towards and at the last, and on the witness-stand swear convincingly that they _saw_ the defendant strike the complainant, exactly how he did it, the words he said, and that the complainant made no offer of any sort to strike the defendant. From allowing their minds to dwell on their own conception of what _must_ have occurred, they are soon convinced that it _did_ occur in that way, and their account flows forth with a circumstantiality that carries with it an irresistible impression of veracity. The witness remembers in a large proportion of cases what he _wants_ to remember, or believes occurred. The liar with his prepared lie is far less dangerous than the honest, but mistaken witness, or the witness who draws inadvertently upon his imagination. Most juries instinctively know a liar when they see and hear one, but few of them can determine in the case of an honestly intentioned witness how much of his evidence should be discarded as unreliable, and how much accepted as true. The greatest difficulty in the trial of jury cases so far as the evidence is concerned lies in the fallibility of the human mind, and not in the inventive genius of the devil. An old man who combines a venerable appearance with a failing memory is the witness most to be feared by either side. In a recent case a patriarch of some eighty-five years positively, convincingly, and ultra-dramatically identified the defendant as a man who had knocked him down and robbed him of a ring. The identification was so perfect that on the evidence of this aged witness alone the jury convicted the defendant after but a few moments' deliberation. He was sentenced to ten years in State's prison, although he denied vehemently that he had ever _seen_ the complainant. As he was being led from the bar, the real criminal arose among the audience and gave himself up, stating that he could not sit by and see an innocent man receive _so great_ a punishment. The inference was, that had the sentence been lighter his conscience would not have pricked him sufficiently to sanction his act of self-sacrifice. In cross-examination lies the only corrective of this sort of specious testimony, but it would be manifestly inadequate to prevent injustice in such an instance as that just described. Juries must and do take the evidence of most well-intentioned witnesses with a grain of salt. Both men and women habitually testify to facts as actually occurring on a specific occasion because they occurred on most occasions: _Q._ "_Did_ your husband _lock_ the door?" _A._ "Of course he did." _Q._ "How do you know?" _A._ "He _always_ locks the door." Witness after witness will take the stand and testify positively that certain events took place, or certain acts were done, when in point of fact all they can really swear to is that they usually took place or usually were done: _Q._ "Did he put on his hat?" _A._ "Certainly he did." _Q._ "Did you _see_ him?" _A._ "No, but he _must_ have put on his hat _if he went_ out." And the probability is that the whole question to be determined was whether or not "_he_" _did go out_ or stay in. The layman chancing to listen to a criminal trial finds himself gasping with astonishment at the deluge of minute facts which pour from the witnesses' mouths in regard to the happenings of some particular day a year or so before. He knows that it is humanly impossible actually to _remember_ any such facts, even had they occurred the day before yesterday. He may ask himself what he did that very morning and be unable to give any satisfactory reply. And yet the jury believe this testimony, and because the witness swears to it it goes upon the record as evidence of actual knowledge. In ninety-nine cases out of a hundred counsel's only recourse is to argue to the jury that such a memory is impossible. But in the same proportion of cases the jury will take the oath of the witness against the lawyer's reasoning and their own common-sense. This is because of the fictitious value given to the witness's oath by talesmen who attach little significance to their own. "He _swears_ to it," says the juryman, rubbing his forehead. "Well, he _must_ remember it or he wouldn't swear to it!" And the witness probably thinks he _does_ remember it. Yet who of us could state with certainty the guests at a particular dinner six months ago? Or the transactions of a morning only a week ago, with any accuracy as to time? What the witness frequently does is to discuss the matter with his friends who were present on the occasion in question, and, as it were, form a sort of "pool" of their common recollections, impressions, and beliefs. One suggestion corrects or modifies another until a comparatively lucid and logical story is evoked. When this has been accomplished the witness mentally exclaims: "Of course! That was just the way it was! Now I remember it all!" The time is so distant that whatever the final crystallization of the matter may be, it is far from likely that it will thereafter be shown to be inaccurate by any piece of evidence which will present itself to the witness and his friends. The account thus developed by mutual questions and "refreshing" of each other's recollection becomes, so far as the parties to it are concerned, _the fact_. The witness is now positive that he did and said exactly so and so, and nothing will swerve him from it, for inherently there is nothing in the story or its make-up that affords any reason for questioning its accuracy. This story repeated from time to time becomes one of the most vivid things in the witness's mental experience. He repeats it over and over, is cross-examined by his own attorney upon it, incorporates it in an affidavit to which he swears, and when he takes the stand recounts these ancient happenings with an aggressiveness and enthusiasm that bring dismay to the other side. But what a farce to call this recollection! What is this circumstantial romance when it comes to be analyzed? Jones, a friend of Smith the prospective witness, is anxious to establish an alibi, and asks Smith if he doesn't remember meeting him in the club on February 12, two years before. Smith has no recollection of it at all, but Jones says: "Oh, yes, you were going to the theatre with Robinson." Of course, if Jones is so sure, Smith naturally begins to think it is probably the fact, and he does remember vaguely that he and Robinson spent an evening together. So he consults his diary and finds it recorded there that he did attend the theatre on the day in question with Robinson. He does not remember the play, but Robinson recalls that it was "The Chinese Honeymoon," and believes that they dined together first at the club. Smith now thinks he remembers this himself. Then Robinson suggests that they probably went to the theatre in a cab. They look in a file of old papers and find that it was raining. That settles it--of _course_, they went in a cab. The next question is the hour. They have no recollection of being late, so they must have arrived on time. Well, the paper says the play commenced at eight, and it takes a cab about twenty minutes to get from the club to Daly's Theatre, so it is reasonably clear that they must have started a little before eight. Smith unconsciously is persuaded to believe that if Jones was right about their going to the theatre, he _must_ also have been in the club at the time he says he was there. Both he and Robinson recall that Jones was always hanging round the club two years ago, and as neither can remember an evening when he wasn't there, they decide he must have been there _that_ night. Robinson has a dim recollection that they had a drink together. That is a pretty safe guess and has all the air of verisimilitude. In an hour or two Smith is ready to swear positively from _recollection_ that he dined with Robinson at the club on February 12 two years ago, met Jones, had a drink with him, that this occurred at seven fifty-five, that it was raining, that they took a cab, etc., etc. In its elements this testimony is entirely hearsay upon the only vital point, _i.e._, Jones's presence in the club at that time, and the immaterial remainder is made up of equal parts of diary, newspaper, play-bill, weather report, usual custom, reliance on Robinson's alleged recollection, and belief in Jones's innocence. He has practically no actual memory of the facts at all, and the only thing he really does remember is that a long time ago he did attend some theatre with Robinson. The common doctrine of what is known as "refreshing the memory" in actual practice is notoriously absurd. Witnesses who have made memoranda as to certain facts, or even, in certain cases, of conversations, and who have no independent recollection thereof, are permitted to read them for the purpose of "refreshing" their memories. Having done so, they are then asked if they _now_ have, _independently of the paper_, any recollection of them. In ninety-nine cases out of a hundred it would be absolutely impossible for them really to _remember_ anything of the sort. They read the entry, know it is probably accurate, and are morally convinced that the fact is as thereon stated. They answer _yes_, that their recollection _has_ been refreshed and that they now do remember, and are allowed to testify to the fact as of their own knowledge. In most instances they do not clearly understand the distinction they are called upon to draw between actual independent recollection and a strong belief on their own part that the fact must be as recorded. It is the exceptional witness indeed who makes any such distinction. There are also many cases where a defendant has been put in jeopardy because some one, remembering that he _intended_ to do an act, becomes convinced that he _has_ done so, to the extent of being willing to swear thereto. No better illustration of this kind of error could be given than the disappearance of the famous necklace of a prominent resident of Newport during the summer of 1904. There lives hardly a family which has not frequently had such an experience. Some night the husband can't find his pearl shirt-studs. He knows he had them on the evening before. The hue and cry is raised. Maledictions are called down upon Anna or Delia or Nora. But the studs are not in the shirt. Their owner swears he left them there. Then Delia tremblingly suggests that "master dined in his ordinary clothes last evening," and he realizes that it was so late when he got home that at the last minute he decided not to change. Amid great excitement the studs are located in the bureau drawer where they belonged. The final question to be determined by the juror in regard to the testimony of any witness is how far the latter has succeeded in conveying his actual recollections through the medium of speech and gesture. This necessarily depends upon a variety of considerations. Among these are his familiarity with the English language; inadvertent accentuation of wrong words or of the less important features of his testimony; his physical condition, which in nine cases out of ten is one of extreme nervousness and timidity, if not of actual fear; and a hundred other trifling, but, in the aggregate, material matters. The most effective testimony is that which is given with what the jury regard as the evidences of candor. It is a familiar fact that the surer a person is of anything, particularly among the laboring classes, the more loudly will he assert its truth. This is so well known to the jury as ordinarily constituted that unless testimony is given with positiveness it might as well not be given at all. Much as it is to be deprecated, an assertive lie is of much more weight with a jury than an anemic statement of the truth. The juror imagines himself telling the story, and feels that if he were doing so and his testimony were true, he would be so convincing that the jury could have no doubt about it at all. Ofttimes a witness leads the jury to suspect that he is a liar simply because he has too strong a sense of the proprieties of his position vehemently to resent a suggestion of untruthfulness. The gentleman who mildly replies "That is not so" to a challenge of his veracity, makes far less impression on the jury than the coal-heaver who leans forward and shakes his fist in the shyster's face, exclaiming: "If ye said that outside, ye little spalpeen, I'd knock yer head off." "Ah," say the jury, "there's a _man_ for you." Just as your puritan is at a disadvantage in an alehouse, and your dandy in a mob, so are the hyper-conscientious and the oversensitive and refined before a jury. The most effective witness is he whom the general run of jurors can understand, who speaks their own language, feels about the same emotions, and is not so morbidly conscientious about details that in qualifying testimony he finds himself entangled and rendered helpless in his own refinements. A distinguished lawyer testifying in a recent case was so careful to qualify every statement and refine every bit of his evidence that the jury took the word of a perjured loafer and a street-walker in preference. This kind of thing happens again and again, and the wily witness who thinks himself clever in appearing overdisinterested is "hoist by his own petard." The jury at once distrust him. They feel either that he is making it all up, or is in fact not sure of his evidence, else, they argue, he would be more positive in giving it. Most witnesses in the general run of criminal cases have no comprehension of the meaning of words of more than three syllables. It is hopeless to make use of even such modest members of our national vocabulary as "preceding," "subsequent," "various," etc. A negro when asked if certain shots were _simultaneous_ replied: "Yas, boss. Dat's it! 'Zactly simultaneous! One _right_ after de odder." The ordinary witness usually says "minutes" when he means "seconds." He will testify without hesitation that the defendant drew his revolver and immediately shot the complainant, illustrating on the stand the rapidity of the movement. When asked how long it took, he will answer: "Oh, about two or three minutes." A proper medium in which to converse between the lawyer and witness is sometimes difficult to find, and invariably much tact is required in handling witnesses of limited education. The writer remembers one witness who was completely disconcerted by the use of the word "cravat," and at the precise moment the attorney was so confused as not to be able to remember any synonym. The Tenderloin and the Bowery have a vocabulary of their own differing somewhat from that of beggars and professional criminals. The language of the ordinary policeman is a polyglot of all three. Popular writers on the "powers that prey," and dabblers in criminology in general, are apt to become the victims of self-alleged "ex-convicts" and "criminals" who are anxious to sell unreliable information for honest liquor. A large part of the lingo in realistic treatises on prison life and "life among the burglars," originates in the doped imagination of whatever fanciful "reformed" thief happens to be the personal gold mine of that particular author. Thieves, like any distinct class, make use of slang, some of which is peculiar to them alone. But for the most part the "tough" elements in the community make themselves easily understood either in the office or on the witness-stand. Where the witness speaks a foreign language the task of discovering exactly what he knows, or even what he actually says, is herculean. In the first place interpreters, as a rule, give the substance--as they understand it--of the witness's testimony rather than his exact words. It is also practically impossible to cross-examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply. One could cross-examine a deaf-mute by means of the finger alphabet about as effectively as an Italian through a court interpreter, who probably speaks (defectively) seventeen languages. The reader might perhaps conclude from what has been said that the action of the ordinary jury in most cases must be founded simply upon shrewd guesswork. To a certain degree this cannot be denied, and it is equally true that all the delicate processes of the human mind, and the shadowy presences there of intent, motive, and recollection, can never be demonstrated save by inference. Our machinery is crude indeed. Ofttimes it is like trying to dissect a butterfly with a pair of pincers, and the wonder is that the jury are able to get at the truth as frequently as they do. Hence the necessity for the advocate to assist the jury and remedy their ignorance of the psychology of testimony by his own observation, knowledge, and experience. With the jury keenly alive to all the possibilities of error in the testimony of even the most honest of witnesses, it is for the advocate, the psychologist of the law, to test by his cross-examination and demonstrate in his summing up the precise probative value of the evidence, frequently revealing, below an apparently limpid stream of truth, a turbid bed of conjecture, assumption, belief, hearsay, and inaccuracy of expression, with the rank weeds of perjury growing just beneath the surface. CHAPTER XIII THE VERDICT The judge having delivered his charge, and the jury having gathered up their collection of miscellaneous garments and retired to the jury-room, a court officer claps the prisoner upon the shoulder and leads him away to the prison pen. Once the door of the court-room has closed behind him, he is conducted along a narrow corridor to the head of a flight of iron steps at the foot of which stands a keeper. As he descends the stairs the attendant notifies the keeper that the defendant is on his way down: and once the latter is safely below the keeper shouts "All right!" to the officer above, who returns once more to his duties in the court-room. Since there is little danger of an escape the officers sometimes become a trifle lax in the handling of prisoners awaiting the verdict. An incident recently occurred which shows how much care is necessary in guarding a defendant who confidently expects a verdict of conviction. At the conclusion of a trial for grand larceny the jury went out and the prisoner was conducted to the head of the stairs leading down to the pen. The court officer notified the keeper when the prisoner was about half-way down, and distinctly heard the latter reply "All right!" He thereupon departed. The keeper, however, had not uttered a syllable and was entirely unaware of the return of the defendant, who, being something of a ventriloquist, had answered for him, and had then calmly reascended the stairs, passed through the corridor to another court-room where he had mingled with the crowd, and later had had no difficulty in making his escape first into the main corridor and thence into the street. When the jury presently returned and the prisoner was sent for, his flight was discovered. The court waited patiently while the pens, corridors and finally the entire building were searched, but without disclosing a trace of the prisoner. Meanwhile the jury, who had found the defendant guilty, wondered why their verdict was not received. According to law, however, all the proceedings incident to a trial for felony up to and including the rendition of the verdict must take place in the presence of the prisoner, and in this case his voluntary absence compelled the court to declare a "mistrial." When it became evident that the defendant was unlikely to return, terrible was the humiliation of the court officers, who, for a few days, lived in terror of losing their official heads, if not of being imprisoned and fined for contempt. The prisoner's wife, however, had been present throughout the trial in the court-room, although, as his escape was entirely extemporaneous, she was as much surprised as anybody else at his departure. After the discharge of the jury several detectives followed her to her home in Hoboken. Late in the evening she left the house in response to a message and met her husband in a deserted part of the city, where he was recaptured. He was immediately brought back to New York and his case placed once more on trial; but this time he pleaded guilty. From a dramatic point of view it is to be regretted that the jury at the first trial had not found a verdict of "not guilty." As the first talesman who happens to be selected for the jury in any given case becomes _ipso facto_ its foreman, amusing incidents sometimes occur owing to his inexperience. Where an indictment contains but a single count, as, for example, "receiving stolen goods," the foreman's answer to the clerk's interrogation of, "Do you find the prisoner guilty or not guilty," is, of course, simple enough; he answers "guilty" or "not guilty," or "not guilty, with a recommendation to the mercy of the court"; but where the indictment contains either a number of counts set forth separately, or the crime charged is of such a character that the jury may find in a lesser degree, some confusion is apt to result. If, for example, a defendant is being tried for murder in the first degree the court is obliged to submit, under the law, not only murder in its first degree, but the lesser crimes of murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and occasionally assault in one or more degrees. Sometimes the foreman forgets entirely what he was going to say and stands staring, open-mouthed, until the clerk comes to his assistance. In a case where the court charged the jury that they could find the defendant guilty of murder, manslaughter, or assault, or else acquit him on the ground that he was justified in taking the life of the deceased, the jury retired and deliberated for many hours. As the time dragged on the defendant became convinced that he was to be convicted. Late at night the jury informed the court that they had agreed upon a verdict. They filed back and took their places in the box. The defendant was arraigned, pale with apprehension. The clerk arose. "Gentlemen of the jury," said he, "have you agreed upon a verdict?" "We have," replied the foreman. "The jury will rise," continued the clerk. "The defendant will rise." The jury and prisoner arose. "Jurymen, look upon the prisoner. Prisoner, look upon the jury," continued the clerk, and turning to the foreman, "How say you? Do you find the defendant guilty or not guilty?" "Guilty," stammered the foreman. The defendant uttered a loud groan and collapsed into the arms of the court attendant beside him. "_Of justifiable homicide_," hastily added the inexperienced foreman. In spite of the laughter of the rest of the jurymen and the smiles of the court it took some moments to convince the unnerved prisoner that he was not to be electrocuted. In a recent case the jury returned a verdict of "_Pretty nearly guilty_!" A very considerable proportion of jury trials in criminal cases result in disagreements. The question of reasonable doubt is always a troublesome one, and even where all the jury believe the defendant guilty, as likely as not half of them will not think that they are convinced beyond what they regard as a reasonable doubt. On this account many jurors are of the opinion that what is known as a Scotch verdict, or a verdict of "Not proven," should be allowed. The writer has been informed on good authority that in one of the recent trials of Nan Patterson eleven of the twelve jurymen believed her guilty, but that only six of them were of the opinion that they were so convinced beyond a reasonable doubt. Had the Scotch verdict been permissible it would probably have been rendered in this case. Inasmuch as the ordinary American petit jury are apt to go outside the evidence and to decide the issue, in some degree at least, on evidence which properly they should not consider at all, no further loopholes of escape from rendering a verdict one way or the other should be afforded them. Had we the Scotch verdict, instead of disagreeing and giving the prosecution the opportunity to try the defendant over again, juries would probably make use of it in all cases where they disliked to render a verdict in accordance with the evidence. Juries frequently incorporate with the verdict of guilty the words "with a recommendation to mercy." Of course this is no part of the verdict and has no legal effect whatever. It is merely a formal expression of opinion that in the eyes of the jury it would be well for the court to treat the defendant with leniency. The judge usually comments upon this recommendation and intimates that he will give it consideration in imposing sentence. It is not likely, however, that in any case which has appealed to the sympathies of the jury the court will not be equally moved. In point of fact, did juries fix the sentence in cases where they found the defendant guilty it is exceedingly probable that they would be much more severe than the bench. Most jurors, however, are under the impression that "a recommendation to mercy" is an integral part of their verdict and it frequently does yeoman's service by inducing a juror or two who have a lingering feeling that perhaps the crime has not been as fully proven as it might have been, or that maybe the defendant is not guilty after all or should be given another chance, to agree with the majority of their fellows. The writer had one panel of jurors in the General Sessions which, having returned a verdict of guilty "with a recommendation to mercy" in the first case tried during the month, affixed the same recommendation to each verdict which they rendered thereafter. It is his impression that they convicted every prisoner who came before them, so that the recommendation must in many cases have seemed to the hapless defendant but a hollow mockery. There is even a traditional case where a jury in a murder trial found the defendant guilty of murder in the first degree, "with a strong recommendation to the mercy of the court." Verdicts of murder in the first degree are comparatively rare and are, practically, only to be expected when the circumstances surrounding the crime are peculiarly atrocious. It is also a well-known fact that juries rarely find a verdict in a degree of crime higher than the one for which the majority vote upon the first ballot. For example, if on the first ballot the jury stands five for murder in the first degree, six for murder in the second degree and one for manslaughter only a miracle could account for a final verdict of murder in the first degree. In other words, a jury will almost never work _up_ their verdict, argument invariably tending to work them _down_ to a lesser degree. Most cases of what is technically murder in the first degree result in verdicts of murder in the second degree, and most cases of murder in the second degree result in verdicts of manslaughter. The jury having rendered a verdict of conviction, say of murder in the first degree, there remains to counsel but one last act which he can perform in his client's behalf, namely, to demand that the jury be polled. This must be done upon the requirement of either the defendant or the People, in which case, "they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation." The writer has never heard of a jury which, on being polled, showed a disagreement. It is not unusual, however, as the roll is called to see various members of the jury look apprehensively towards one of their number who has evidently put up in the jury-room a hard fight for a lesser degree and may be "of the same opinion still." A prosecutor always breathes more freely when the ordeal is over, and probably experiences during the process very much the same kind of emotion as that felt by the bride-groom at the altar as he listens apprehensively at the conclusion of the clergyman's announcement that "if any one has any just cause, etc., let him now speak or forever hold his peace." Defendants who are convicted rarely show any emotion when receiving the verdict. This is of course to be expected, as the defendant, if guilty, has probably been anticipating that he will be so found by the jury, and has steeled himself for the occasion, while an innocent man is practically never convicted. Hundreds of defendants, however, who confidently expect to be convicted, are acquitted through the leniency of the jury. Their exclamations of gratification and joy upon such occasions are frequently most amusing. Such a defendant not seldom thanks the court and the jury for their kindness, and in some cases his thanks are certainly due to those who have violated the letter and spirit of their oaths in acquitting him. The writer recalls one old colored mammy who, on being acquitted of stealing some wash which had been confided to her care, curtsied in all directions and remarked, "Ah t'anks your honor, an' Ah t'anks your Honors, gen'lemen ob de jury, one an' all." An Irishman, who had been but a few weeks in this country, and who had been acquitted on the charge of stealing a truck and horse which had been left in his charge, on learning of his acquittal invited the jury collectively in a loud voice to come across the street and have a drink. Before the jury is discharged, however, and the prisoner remanded to the Tombs for sentence, he is required to answer certain questions relative to his age, parentage, education, previous convictions, etc. If the spectator is fortunate enough to be able to forget the solemnity of what has taken place, he may well be entertained, not only at the answers given by the defendant, but at the method of conducting the examination by the court officer. The clerk takes the indictment and, with a large rubber die, stamps upon it the statement that the defendant, on being arraigned, made answer to the questions put to him, as follows: Counsel Assigned ............................................ Sex ......................................................... Age ......................................................... Nativity .................................................... Residence ................................................... Occupation ................................................... Married or Single ............................................ Education .................................................... Religious Instruction ........................................ Parents Living ............................................... Temperate or Intemperate ..................................... Before Convicted ............................................. Of course, the court officer who repeats the prisoner's answers to the clerk is usually so familiar with the order of the questions as to render any vocal action upon the part of the clerk unnecessary. The officer stands by the prisoner and, leaning over, asks in a low tone how old he is, if his parents are living, if he is addicted to the use of liquor, if he has had any religious instruction, or if he has been previously convicted of crime. It is really the officer to whom the defendant makes his replies, the former repeating them in a loud voice to the clerk. In some courts the clerk does not put the questions at all, but the officer merely gives in their order the answers of the defendant. For example, in Part II, upon the rendition of a verdict one will see Mr. Samuel Wolff, the clerk, stamp the indictment, dip his pen in the ink, turn to the officer of the court and say, "All ready?" The officer answers, "Yes." A subdued conversation then takes place between the prisoner and the officer, who raises his voice and answers: "Twenty-nine;--U.S.--No;--None;--Single--Yes;--No.--" All of which answers are properly recorded opposite the appropriate questions upon the indictment. All this is a little startling to the juror who has rendered his first verdict. He has no idea at all of what is going on. The officer returns, if possible, a categorical reply to each question, but frequently prisoners make statements which are of course irrelevant in character and are not incorporated in the answer. At times it requires quite a little cross-examining on the part of the officer to determine whether or not the defendant _is_ temperate or intemperate, or whether he _has_ really ever been convicted of crime theretofore. Any one who could overhear these colloquies would be well repaid for his trouble. The writer knows of one officer of a somewhat waggish disposition who, when he approaches the interrogation directed towards the prisoner's usual habits, first puts the question in its proper form: "Are you temperate or intemperate?" The prisoner, who perhaps does not understand these terms, or, at any rate, is a little doubtful himself as to his usual condition, stammers and hesitates. The officer, dropping his voice, remarks, confidentially: "Say, do you ever take a drink?" "Sure," says the defendant, without hesitation. "_Moderate_," shouts the officer to the clerk. A certain element of humor enters into the situation when a defendant convicted of bigamy is asked if he is married. The answer "Yes" is generally accompanied by an irrepressible grin. There used to be an old court officer in one of the parts of the General Sessions a few years ago who was a loyal son of Old Erin and a devout member of the Roman Church. On one occasion, a defendant having been found guilty he was arraigned at the bar for the purpose of having his pedigree taken, old Flaherty officiating. The conversation which ensued may be worth preservation. Flaherty to Defendant: "Say, me friend, where was ye born?" Defendant to Flaherty: "_Lowell, Mass._" Flaherty to Clerk: "Lowell, Mass." Flaherty to Defendant: "Where do yez hang out?" Defendant: "Nowhere." Flaherty to Clerk: "_Ain't got none._" Flaherty to Defendant: "Phat do yez do fer a livin'?" Defendant: "Nothin'." Flaherty to Clerk: "_Ain't got none._" Flaherty to Defendant: "Are ye married?" Defendant: "No,--thank God." Flaherty to Clerk: "_He says 'No, thank God!'_" Flaherty to Defendant: "Ever receive any previous religious instruction?" Defendant: "How's that?" Flaherty to Defendant: "Phat's yer religion?" Defendant: "Don't believe in nothin'." Flaherty to Clerk (loudly): "PROTESTANT!" * * * * * For a convict to give under oath false answers to the questions thus put to him is, of course, perjury. It is frequently of no small importance for a prisoner to conceal his identity, or at least his record. But if a Bible is thrust into his right hand he is loath to put himself within the statute governing false swearing, for the chances are all in favor of his being found out, in which case his punishment will be severe. The writer recalls a dramatic incident of a man who endeavored to prevent his past offences coming to the knowledge of the judge. He bore, however, all the ear-marks of an ex-convict, and the court became suspicious that all was not right. He had just been convicted of stealing a purse. The jury had remained out until eleven o'clock at night and the court-room was practically deserted. The prisoner was placed before the bar. We will call him James Graham. The clerk put the usual questions and then inquired: "Have you ever been convicted before?" "No," answered the prisoner in a low voice. There was a long pause, and then the judge, looking down intently from the bench, said: "Graham, is that the truth?" "Yes, sir," replied the prisoner. "Are you quite sure?" insisted the court. "Yes, sir." "Swear him!" ordered the judge. The officer started to place the Bible in Graham's hand, but he refused to take it. "No, no, I can't!" he whispered. "I can't--I--I--it's no use!" he added. "When were you convicted?" "I served six months for petty larceny about five years ago." "Is that all?" "Yes, sir." "Are you sure?" "Yes, sir." "Quite sure? Think again." "Yes, sir." "Swear him!" Again the book was placed in his hand and again it was declined. "I served three years in Charlestown for larceny, and was discharged two months ago." "Is that all?" "O God! Isn't that enough?" suddenly groaned the prisoner, breaking down completely. "No, sir, it isn't all! It's always been the same old story! Concord, Joliet, Elmira, Springfield, Sing Sing, Charlestown--Yes, six times. Twelve years!--_I'm a jail bird!_" Before rendering a verdict the members of almost every jury take the opportunity in the jury-room to stretch their legs and satisfy their craving to smoke. Juries rarely return in less time than it takes to burn a cigar. While this may torture the prisoner it would seem a fairly earned perquisite on the part of his judges. Some jurors are instinctively, and a few are actually lawyers. These rarely add much to the general usefulness of the panel. Jurymen not infrequently seize the opportunity to display their oratorical ability, since their audience cannot get away and must perforce hear them out. The writer recalls one instance where in a well-known extortion case an enthusiastic talesman made a digest of the speeches of counsel for the defence and for the prosecution and then prepared a long harangue of his own which he committed to memory. When the jury were safely locked into their council chamber this self-sacrificing gentleman arose and began, "In this case the defence claims, thus and so." After he had repeated practically in toto the argument of the defence he got his second wind and continued, "On the other hand, the People assert, thus and so." At the end of about an hour he had reached his own humble views of the case, which he expanded at great length, ending with a peroration in which the great American eagle could be heard screaming all the way into the court-room. The jury, probably out of sheer fatigue, took but a single vote and found the defendant guilty. The orator to this day claims that he "did it." While the deliberations of the jury are theoretically secret, the rooms in which they are confined are often so located with reference to corridors, retiring rooms, etc., that officers on duty, turnkeys, and other persons are occasionally made involuntary eavesdroppers. It is said that in other and more barbarous times interested parties would lurk near by in order to get an idea of how the wind was blowing. There is a story for which the writer assumes no responsibility that ten or fifteen years ago a noted prosecutor was accustomed to follow the jury out, climb upon a ladder, and listen at the transom to their arguments and comments; and there is also a report, which perhaps is but a fable, that there was a knot-hole in the jury-room of the old "Brownstone" building from which the plug was regularly removed to allow of similar surreptitious observations. The rumors which come from the direction of the jury-room are quite as apt to be incorrect as accurate, and neither prosecutor nor prisoner really knows what is the result of the jury's deliberations until the foreman's word ends the suspense. Many strange and amusing stories are told of how certain historic verdicts in criminal cases were reached. Perhaps the most famous is that of the trial of the first indictment which followed the robbery of the Manhattan Bank. The case was tried before Judge Cowing in the General Sessions, and after a speedy, but conclusive, trial the jury retired. A vote, which was immediately taken, showed that they stood eleven to one for conviction. The twelfth juror was obstinate and no progress whatever was made by the others. The situation remained unchanged during the night and up to twelve o'clock of the next day, which happened to be a Saturday. At that hour Judge Cowing sent word that he was going downtown and would not return until two o'clock. In some way the jury got the idea that the judge intended to lock them up until Monday if they did not agree. They accordingly asked for five minutes more before the judge left the building. This was granted and at the end of that time they announced that they had agreed. Into court they filed. "Have you agreed upon a verdict?" asked the clerk. "We have," replied the foreman. "How say you? Do you find the defendant guilty or not guilty?" "_Not guilty_," answered the foreman defiantly. The defendant, who was as guilty a man as ever was brought to the bar of justice, almost collapsed from astonishment, and the judge gave the jury a frank piece of his mind in no uncertain language. Rather than suffer any further inconvenience this high-minded jury had simply faced about and voted to acquit. There are some cases, however, where one strong-minded and able juryman has swung the whole body to his way of thinking after a vote of eleven against him, and this is as true of verdicts of conviction as of acquittal. Few jurors, however, can, as a rule, stand out against the assertions and incriminations of their fellows. Most of them are easy-going and like to be led by a strong hand. A positive stand taken by a fellow talesman will often bring them to his views when they are really inclined to be in doubt. If the flag is raised they will quickly rally to it, but they will never reach the point where they would be willing to elevate it of their own accord. An experienced and highly intelligent juryman once told the writer that the first thing he always did when the jury had retired, whether he was the foreman or not, was to stand up at the end of the table and say: "Gentlemen, this man is _guilty_ [or innocent, as the case might be]! The sooner we say so the better, _but my mind is made up_." In this way he invariably secured at the outset the support and co-operation of a majority of the jury. In capital cases where the prisoner's life hangs in the balance there will always be found in the first vote a few blank ballots. These are cast, as the expression is, "to provoke discussion." Shrewd old jurors, realizing that no man can convince another half so well as that other can convince himself, will often vote for "not guilty" in order to get their fellows worked up to a white heat of intellectual frenzy in the effort to bring them over. There is many a wily Odysseus among the variegated personalities of a jury. "My first jury trial," said one of the judges of the General Sessions recently, "occurred when I was a very young man and had just been admitted to the bar. It was my initial appearance in a court of justice. However, I threw out my chest and tried to make the jury think I was an old hand at the business, by objecting to almost every question and taking exceptions by the score. My client was an old woman who had been illegally ejected, or who claimed to have been illegally ejected, by the agent of a tenement house which belonged to Mr. W.D. Sloane. Of course, I don't suppose Mr. Sloane ever heard of the incident, but I was suing him for damages and put in my case with a great deal of vigor. The lawyer for the defence was a big, good-natured man who did not seem to care very much which way the jury decided the case. The judge charged and the jury retired. They were gone a very long time. At last an officer appeared with a slip of paper. The judge beckoned the lawyer for the other side and myself to the bench and showed us the jury's message. "'We want a bottle of whiskey and a box of cigars,' it read, and was signed, 'William Smith, Foreman.' "'Let 'em have them!' remarked the good-natured lawyer. 'I don't blame 'em for being thirsty.' "'I don't know,' I replied. 'It does not seem to me that whiskey would help them to decide the facts any more clearly!' "'Of course, if Mr. ---- does not agree to it!' exclaimed the lawyer, 'I have nothing to say!' Then he turned away and the judge whispered in my ear: "'Young man, I should advise you to let these refreshments go into the jury-room. You have not had a great deal of experience and probably do not appreciate the effect which a denial of their request may have upon the jurors. Take a quiet tip from me and let the whiskey go in.' "'All right, your Honor,' said I. 'I bow to your Honor's long acquaintance with men and your experience at the bar--of justice.' "Well, the whiskey and cigars went in, and I could see as the officer brought them through the court-room that the whiskey was the very best King William and the cigars were Havana perfectos. I wondered with some misgivings who was paying for them. "In about an hour the jury filed in flushed and happy and rendered a verdict in favor of Mr. Sloane. Some time afterwards I happened to be in the court-room and learned from the officer that the jury had stood eleven to one in my favor for over three hours. The foreman, the only one against me, had finally remarked that he was thirsty and had offered to treat the rest of the jury. In less than an hour after the refreshments had arrived the other eleven came over and decided that Mr. Sloane was in the right." Another judge tells of an experience of his when serving upon a jury in Ireland. The case over they retired to the jury-room and found that they stood eleven to one for acquittal, but that one happened to be a very complacent old gentleman in a billy-cock hat who, with his chin resting upon the head of a thick bamboo cane, announced defiantly that he was ready to stay there as long as anybody. The hours dragged slowly by, evening drew on, and still the old gentleman obstinately held out. The jurors disposed their weary bodies as best they could along the floor and the hard benches, and prepared to make a night of it. From time to time the old gentleman would contemplatively suck the head of his bamboo cane. Finally he fell fast asleep and the cane fell heavily to the floor. Then one of the jurors picked it up and found to his surprise _that it was hollow and filled with good old Irish whiskey_. They passed the cane around, relieved it of its contents, and then awoke the owner. Slowly he lifted the cane to his mouth, sucked ineffectually for a moment, looked at his watch and then arose with the announcement: "B'ys! I'm afther changin' me moind!" A recent trial, Donohue _vs._ The New York, New Haven and Hartford Railroad, illustrates the vagaries of individuals which may seriously interfere with the course of justice. The judge had been particularly careful to elucidate the point of law which the jury were to apply to the facts as they found them. The jury unanimously agreed that the facts were thus and so, but one of their number refused to follow the law as laid down by the court. At first he insisted that the judge had charged differently, but it soon became obvious that this was not the true cause of his indecision. "Well," exclaimed the foreman at last, on the verge of distraction, "should we go back into court and the judge should instruct you that what we say _is_ the law, would you find a verdict _then_?" The juryman hesitated and then announced with deliberation: "No; _not until I had consulted my attorney_." A frankly unscrupulous member of the criminal bar tells the following story at his own expense. His client was indicted for murder and on the evidence apparently guilty. The lawyer's only chance, as he thought, lay in trying to "work it down" to manslaughter, which would get his client off with twenty years' imprisonment. Accordingly he told his clerk to become friendly with the jurymen, treat them to drinks, and see what he could do. The clerk reported that he had become very thick with the twelfth juror, an old Irishman, who had promised to "hold out for manslaughter." The lawyer told his client, and both ceased to worry about the result, as death no longer stared the prisoner in the face. The jury retired and remained out twenty-three hours. At the end of that time, tired, dishevelled, exasperated, they filed into court and returned a verdict of manslaughter. The lawyer warmly congratulated his client. As the jury were separating the old Irishman leaned over to the lawyer and exultantly whispered: "Bedad, I had th' divil av a time av it! Elivin o' thim were for _lettin' him go entirely_!" CHAPTER XIV THE SENTENCE "What have you to say why judgment of the court should not be pronounced against you according to law?" With these words begins the final chapter of the convict's history. He has been arraigned for the last time at the bar of justice, after a jury of his peers has declared him "guilty," and now awaits his sentence. The judge who presides at the trial of a criminal case does but begin his labors when he receives the jury's verdict. If he be a man of sensibilities the strain of a trial is as nothing compared with the responsibility of determining whether the defendant shall be let go free under a "suspended" sentence or ordered to prison. No one appreciates the horror of prison life or its effect upon the individual better than the judge himself, and he may pass many a sleepless night before sentencing a man whose circumstances and whose years suggest the possibility of reformation. Where the defendant has been found guilty of murder in any of its degrees the judge is, of course, relieved of the responsibility of determining the sentence, which is fixed by law, and the interrogation of the clerk must seem but a mockery to the prisoner, who knows that, whatever he may say in his own behalf, the judgment of the court will be the same. For this reason counsel rarely address the court upon the sentence in such a case, but sometimes the prisoner himself seeks a last public opportunity to assert his innocence or proclaim his repentance. On Saturday morning, March 21, 1829, Richard Johnson, convicted of the murder of Ursula Newman, was brought to the bar of the New York Court of Oyer and Terminer, and was asked what he had to say why judgment of death should not be pronounced against him according to law. In the faded ink of the records of the General Sessions is inscribed the following: The prisoner replies: If your Honor please. I am asked what I have to say why judgment of death should not be pronounced against me? To this I reply--To the judgment of the law, nothing. A jury of my country has pronounced me guilty; and there remains no discretion with the court but to pronounce upon me the sentence of the law. But to the judgment of the world I have much to say. I have been convicted of a crime the bare recital of which causes humanity to shudder. And it is a duty which I owe to myself while living, and to my memory when dead that the circumstances of my offence should be fully explained. Before entering into the detail, I must take this public opportunity in the name of that omniscient and all-merciful Being who will hereafter pronounce his judgment, alike upon my judges & myself, of disclaiming any knowledge of the transactions of that fatal 20th of November. I do not mean to impugn the decision of the jury; the movements of the mind were beyond their power to penetrate; and hard as is my fate I humbly bow to their verdict. I cannot here enter fully into the details of my intimacy with the unfortunate cause of my present awful situation. Duped and betrayed as I have been into sorrow and bitter despair, and lastly involuntary crime I am unwilling while living to indulge in unavailing reproaches. In life the deceased was the object of my tenderest affection. An affection that her own unkind conduct seemed to inflame, and that, baffled in its honorable purpose--expelled reason from her throne, and, in its absence, led to the commission of the offence, for which I am now to satisfy the offended community by my own life. Was I conscious of any moral guilt, at this result I should not repine. Accustomed throughout my life to respect the law, I have not now to learn that the blood of the murderer is alike a propitiating sacrifice to the laws of God and man. Convicted of the legal crime I know my fate. For the moral offence I have to answer to my conscience and my God; and that innate monitor tells me, that I stand before this court and this community a legal but not a moral murderer. To my counsel who have so ably though vainly made my defence, I tender my warmest thanks. Of the court I have but one request to make, that the period allowed me to prepare for my impending fate may be as long as the law will permit. The sentence of the court was then pronounced. Compare this solemn and thrilling declaration with what occurred upon the sentence of Dr. Carlyle W. Harris, convicted of the murder of his girl-wife by the administration of morphine capsules which he compounded and furnished to her. He had married her secretly under an assumed name and in all probability had never intended to recognize her as his wife. Events finally rendered it impossible for him to conceal the marriage longer, and, realizing this, he procured for her the medicine which caused her death. Harris was a gentleman,--or rather he was a very debonair, nonchalant, and brazen imitation of one. Throughout his trial he had preserved an absolutely unruffled exterior, chatting affably with counsel and court attendants, and receiving the verdict with undiminished equanimity. On the day set for his sentence he came into court with the easy and gracious manner of a young man paying an afternoon call. He was arraigned at the bar and the Recorder [Smyth] proceeded to rehearse the history of his terrible crime and stigmatize the loathsome character of his act. Harris listened politely, and apparently endeavored to show a considerable interest in his remarks. Then the Recorder made some slight error in giving a date. "Pardon me, your Honor," interrupted the blithe defendant, "it was the eighteenth and not the nineteenth----" and corrected him. The Recorder frowned and replied with dignity. "That is a matter of slight importance!" "I beg your Honor's pardon," returned Harris flippantly; "you see, I have never been sentenced to death before, and am not as familiar with the procedure as might be." Unpleasant as is the duty of the prosecutor who is obliged to move that the sentence of death be pronounced, it is less terrible than listening to the few simple but hopeless words that doom a convict to life imprisonment. The murderer must die; but it will soon be over. The ghost of his victim will in a few weeks cease to haunt his dreams. But the "lifer"! Who can picture the horror of a life-time of repentance or of mocking remorselessness? "Civilly dead," he is doomed to drag out his weary years in an earthly tomb, a silent, forgotten creature, numbered like a human specimen, enduring all the tortures of purgatory until the end seems a far distant haven of oblivion. The court-room echoes, like the empty future of the white-faced prisoner, to the dull fall of the words upon his barren soul--"_for the rest of your natural life_." The listener shudders. "God grant that it be short!" he murmurs, then looks away. Of course, in the seventeenth century and early in the eighteenth all felonies were punishable, not only in England but in America, by death. When the severity of punishment began to be abated and imprisonment substituted for the extreme penalty, all sentences were for a fixed and definite term, and the only way that the convict could obtain release or secure the modification of his sentence was by pardon from the supreme executive authority of the country. Sometimes a ray of sunshine illumines the dreary pages of these parchment-bound volumes, the stiff phraseology of the crabbed entries failing to obscure it. For example, on Monday morning, March 29, 1784, "The Court met pursuant to adjournment" and was "opened by proclamation." The grand jury came into court and presented an indictment against one Sylvia, a negro slave, "for stealing monies from Alexr Johnson." "The prisoner being set to the bar and arraigned, did plead guilty, and for trial put herself upon God and the country." Her case was immediately moved. One witness, the Alexander Johnson mentioned, testified. "The jury without going from the Bar say, that they find the prisoner at the bar Guilty of the Felony whereof she stands indicted...." Just one week later, Sylvia, now a convict, "was called to the Bar, for judgment, and it being demanded of her in the usual manner what she could say for herself why judgment of Death should not now pass against her, according to law, she did produce and plead a pardon of the People of the State of New York, under the Great Seal, bearing test the 31st March, 1784, which was read and allowed, and the Prisoner discharged." Sylvia was undoubtedly a valuable piece of personal property--valuable enough evidently to make it worth her master's while to urge his claims upon the Governor for clemency. White offenders did not always fare as well. But for them in the colonial times still occasionally remained that quaint old plea of "benefit of clergy." This lingered on as late as 1784, when the record shows that one John Cullen, having been convicted of forgery, "ON MOTION of Mr. Attorney-General ... was sent to the Bar for judgment, and it being demanded of him in the usual form what he could say for himself why judgment of death should not pass against him according to Law, he prayed the Benefit of Clergy, which was granted by the Court. THEREUPON IT WAS ORDERED that the said John Cullen be branded in the brawn of the left Thumb with the letter T in the presence of the court, and that the sheriff execute the order immediately, which was done accordingly." Benefit of clergy was the historic privilege accorded in England to all priests of being tried only in the ecclesiastical courts for their crimes. Coke says that "it took its root from a constitution of the Pope that no man should accuse the priests of Holy Church before a secular judge." As all common-law felonies (except petty larceny and mayhem) were _punishable by death_ even as late as 1826, and as these felonies included homicide, rape, burglary, arson, robbery and larceny, and _all were clergyable_, it must have been a prerogative of considerable value to any member of the cloth of lively disposition. Originally the privilege could be claimed _before trial_, and ousted the lay courts of any jurisdiction whatever, the right being strictly limited, however, to those who exhibited all the physical attributes and garb of priesthood, having "_habitum et tonsuram clericalem_," but long before (1350) it was provided that "_all manner of clerks_, as well secular as religious, shall from henceforth freely have and enjoy the privileges of Holy Church." As a priest's trial in the ecclesiastical courts was hardly more than a matter of form, with rarely any result save that of acquittal, he who could plead his "benefit" was practically immune so far as punishment for his crimes was concerned. In course of time the right was accorded only _after_ conviction in the secular courts. In 1487 it was provided that every person convicted of a clergyable felony should be branded in the brawn of his thumb, so that mere inspection would reveal second offenders. The letter M stood for murderer and T for thief or forger, as we have seen in Cullen's case. The statute also provided that no person could plead his clergy a second time unless he were actually in orders. Thus as late as 1487 practically any one who could read or write might commit as many crimes, including murder, as he chose, with no fear of punishment save of having to make his purgation, and after that date could, so to speak, have one murder, arson or larceny and escape with branding, while the priest in orders continued free to violate the law to his heart's content. Perhaps this wholesale extension of the privilege was made in the interest of education and as an incentive to literary accomplishment. It certainly put a premium on learning which a mere "degree" could not offer. From the beginning of the eighteenth century on (the privilege having been extended by statute to all the inhabitants of England, male or female), _any one_, irrespective of his learning, could plead his clergy once to any crime that remained clergyable, if he could find one, and priests in orders could do so indefinitely. But the crimes which were clergyable were correspondingly reduced in number. In 1779 branding was practically done away with in England. (19 Geo. 3, c. 74 s. 3.) It is interesting to find the custom still in vogue in America as late as 1784, as shown by the case of Cullen.[41] In one or two of the Southern States the plea lingered on for nearly another half century. When the defendant could not avail himself of clergy and no pardon was at hand to save him, the law in the early days took its full and awful course. Thus we read in the first almost illegible volume of the records, the phraseology of the sentence, save for its terms, being practically the same to this day: Att a Court holden for the tryal of negro and Indian slaves at the Citty Hall of the Citty of New-York, on Tuesday the 15th day of April, Anno Dom. 1712. Present: Caleb Heathsope, } Esquires, William Smith, } Justices Edward Blagge } Court opened-- { The defendt Tom being brought to the Barr Dom Regina { & having nothing to say for himself why vs. { judgment of death should not pass agt him Tom the Negro man, slave { according to the verdict &c. It is considered of Nicholas Rossvelt { by the Court that he be carryed from hence to J.D. { the place from whence he came and from thence { to the place of execution and thence to be burned with a slow fire that he may continue in torment for eight or ten hours and continue burning in said fire untill he be dead and consumed to ashes. At present, when "benefit of clergy" is but a legal tradition, and pardons are obtained with difficulty, but one legal barrier can be raised to the interposition of sentence upon a convict--proof of his insanity. If, in the opinion of the court, there is reasonable ground for believing him to be mentally unbalanced, the question must be determined as provided in the Code. If he is found to be sane, judgment must then be pronounced, but if found insane he must be committed to the State Lunatic Asylum until he recovers his sanity, and when notice is given of that fact he must be brought before the court for judgment. Of course, he may also allege legal ground why the judgment should be arrested or why a new trial should be granted, but at this time a technical discussion of these motions would be unnecessary. Defendants are far less likely to feign insanity at the time of their sentence than they are upon the actual trial; for if a man is clever enough to act the part of a lunatic he is shrewd enough to realize that the best time to do so is before he has been convicted of the crime charged against him. There is a reputed case, the memory of which still lingers around the criminal courts, where it is said that a defendant who was charged with murder in its first degree feigned insanity just before his case was moved for trial. This was many years ago, at a time when such a fact did not, of itself, necessarily excite the same suspicion that it does to-day. The issue of the defendant's sanity was tried before a lay jury, who promptly found that he was incapable of understanding the proceedings against him or of making proper preparation for his defence. He was thereupon committed to the State Asylum for the Insane, where he remained incarcerated for many years. It so happened that there was but a single eye-witness to the shooting, and the circumstances surrounding the affair were such that without the testimony of this witness it would be a practical impossibility to determine whether the deceased had been murdered or had committed suicide. After twenty years, in the course of which the defendant's lawyer had died and the entire family of the prisoner had either died or disappeared, another lawyer, who had found among some old papers a memorandum of the case, went to Matteawan, located the defendant, and discovered, as he had anticipated, that he was entirely sane. A writ of habeas corpus was thereupon procured and the defendant brought back to New York. In that time the entire aspect of the city had changed. Buildings twenty-five stories in height had replaced those of six; the city had reached far up and entirely covered the island; electric surface cars had taken the place of ramshackle, bobtail horse cars. The defendant, prematurely aged and with clothes long out of date, impressed those in the court-room as a sort of Rip Van Winkle, awakened after a long sleep. There was absolutely no question as to the man's sanity, and he was discharged upon the writ of habeas corpus and remanded to the Tombs to await his trial. The following morning he was brought into court, and the district attorney moved that the indictment against him be dismissed on the ground that there was no longer any evidence upon which the people could proceed to prosecution. Then for the first time _the defendant discovered that the only witness against him had died ten days after he had been committed to the asylum_. Although the writer does not vouch for the authenticity of this story, the incident may well have happened. In addition to the legal ground of insanity why judgment should not be imposed, a convict or his counsel may properly, on his arraignment, state to the court any general reasons for a mitigation of sentence or for its absolute suspension when such is within the discretion of the court, and few sentences are imposed without a more or less lengthy appeal for clemency from the defendant's lawyer, who usually does not confine himself merely to the contrition of the defendant, his past respectability and his pledges to lead a new and better life, but is prone to discourse volubly upon the reputable connections of the defendant, the hardship which a sentence will impose upon his family, and the fact that the complainant or those who have been interested in the prosecution now have a profound sympathy for the prisoner. The gist of many of these appeals is to the effect that because the defendant, by reason of his education and opportunities, ought to have known better than to commit crime, he should now, since he has discovered his mistake, be excused from paying the penalty. The judge invariably listens with courtesy to these orations, which are not often made with any idea of actually influencing the court's decision. They are grateful to the defendant and his family, and impress the latter with the fact that the lawyer is doing everything in his power to get his client off. It is now the judge's soul is tried. How far may he temper justice with mercy? How far are the interests of the public and the prisoner irreconcilable? Many youthful offenders, who have not hitherto been convicted, escape with a suspended sentence or a commitment to a reformatory--even when found guilty of crimes as serious as manslaughter or robbery. Little mercy is shown to old offenders. In fact, the law now provides that they may be tried under an indictment charging them with having committed a "second offence," under which, if found guilty, they must be sentenced to the maximum penalty set for a first offence of the same crime. It should be noticed that originally only one sentence, and that a definite one, could be passed by the judge upon a prisoner for any given offence. At first there were no provisions of law granting to convicts as a matter of right any reduction or commutation of sentence because of good behavior. Then laws were passed which provided for the definite commutation of the sentences of all convicts confined in State's prison. The question as to whether or not the convict had earned his commutation by good behavior was left to a board composed of the State superintendent of prisons and others. A carefully prepared scale or table showed exactly how much commutation it was possible for any prisoner to earn.[42] In 1889 there was introduced into New York State for the first time what is commonly known as the "indeterminate sentence," that is to say, a sentence consisting of a minimum and a maximum term of imprisonment during which the prisoner may be discharged at the option of a board consisting of various persons, but distinct from that which passes upon the question of whether or not he has earned his "commutation." The introduction of this form of sentence is in conformity with the most recent and most enlightened view of the proper attitude of the State towards its criminals. Whenever the indeterminate sentence has been introduced into any State it has been invariably attacked as being unconstitutional, but the courts have uniformly upheld it. The principal difference to be noted between "commutation" and "indeterminateness" of sentence is that the latter is vastly broader in effect, since only the prisoner's good behavior while actually undergoing his sentence in State's prison may be considered by the board which passes upon his commutation, while, in the case of the indeterminate sentence, the parole board may consider all the facts surrounding the commission of the crime, the convict's past life, and whatever other facts they see fit, as well as his good behavior during his period of confinement.[43] After conviction the natural optimism of the human race reasserts itself and the defendant begins to believe that the worst is, after all, over, and to rely upon the assurances of his counsel or his political friends that the judge is going to be easy on him and give him a light sentence. Terrible is the disappointment of such a one who finds that he is going to be sentenced to State's prison when he expected the penitentiary or to the penitentiary when he expected to be set free entirely under a suspended sentence. The judge usually prefaces the sentence with a few remarks of an admonitory character, commenting upon the severity of the crime which the defendant has committed, and upon the fact that it is within his power to sentence the latter to a long term of imprisonment. He generally adds that, under all the circumstances and considering the fact that the defendant has never been convicted before and has hitherto led a reputable life, he will be merciful and give him only so and so many years in State's prison. Of course, this occurs only in such cases as deserve leniency. But where the defendant is a hardened criminal, or an ex-convict, or when his crime is one of atrocity, he is apt to learn, in no unmeasured terms, what the judge and the community think of him. The writer has heard a prisoner censured in such language that he blushed for the human race of which the convict could be the offspring. Most defendants receive their sentence with imperturbability, for they are able with approximate accuracy to figure out what punishment they will probably receive. The experiences of their acquaintances in the Tombs are of great assistance in this matter, yet more than one convict falls senseless on the floor when sentence is pronounced upon him, and hundreds lose their nerve and stagger away bewilderedly at the thought of the interminable years before them. Yet a layman happening to be present on a Friday in the Court of General Sessions would be surprised at the apparent lightness of most of the sentences. The judges of our criminal courts are merciful men and rightly believe that a year or two in State's prison has a better effect upon the defendant than a longer term. A short-term man emerges, at least it is so to be hoped, with some aspirations for the future and with health as yet not undermined. To most judges the infliction of sentence upon a fellow human being ever remains a bitter experience. In the old days, however, there were some judges who, not unlike Jeffries, took a certain grim satisfaction in the performance of this duty. There was, many years ago, one of them who seemed to take a particular delight in so far as possible prolonging the agony of the defendant's uncertainty. When a prisoner had been arraigned for sentence the judge would wait for absolute silence, and would then with the greatest deliberation address a long harangue to the unfortunate man, characterize his crime in the severest manner, excoriate him for having committed it, name the maximum penalty which the law allowed, intimate that he was going to impose it, and then, after a long hiatus, slowly take down his sentence book, ink his pen with annoying deliberation, cough two or three times, look around the court-room and begin carefully inscribing each word upon the record before him, "I--shall--therefore--sentence--you--to--[cough, another glance around the room]--five years in State's prison." Many pathetic and also amusing incidents occur upon these occasions. There is a true story of an incident which, however, did not occur in the General Sessions of New York County, where a prisoner who had been convicted was arraigned before the judge for sentence. This judge was an aged man with a great reputation for his bitter wit and sarcasm. The convict, who had been convicted of being a common gambler and who was described by the court officers as a "fly guy," appeared in a loudly checked yellow and black suit with a red necktie and a large paste diamond horseshoe pin. The judge from under his beetling eyebrows looked fiercely down upon him from the bench and remarked with intense scorn: "I sentence you to pay a fine of fifty dollars----' "That's all right, judge," interrupted the "fly guy" nonchalantly, thrusting his hand into his trousers. "Got it in my pants pocket." "----And to three years and six months in State's prison," continued his Honor, with a slight twinkle in his eye. "_Have you got_ THAT _in your pants pocket_?" Recorder Smyth is said to have had a habit of entering the sentences which he proposed to inflict in a book which he kept for that purpose. He also generally made use of a regular set form of expression when imposing them. A miserable little defendant who was gifted with a greater fund of originality than of common-sense, had conceived the extraordinary idea of stealing a ship's anchor belonging to a company which owned a dock in the North River. For this purpose he procured a dray, drawn by six or eight horses, and a derrick, by means of which he hoisted the anchor in question upon the dray in the dead of night and, as might have been expected, succeeded in getting only about half way down the dock with it before he was apprehended by a watchman. Naturally he had no adequate explanation to offer and promptly pleaded guilty. He was arraigned at the bar in company with several other defendants. Recorder Smyth, his mind still dwelling upon the words with which he had sentenced the latter, thus addressed the trembling miscreant: "You have pleaded guilty to the crime of stealing a ship's anchor!"--then raising his voice he continued, with perfect solemnity: "The crime of stealing a ship's anchor is _becoming entirely too prevalent_! I sentence you to three years and a half in State's prison." In contrast with those cheerful days on Manhattan, not much over a century and a half ago, when negroes were burnt to death in chains, and thieves branded in open court and then, tied bareback to the tail of a cart, whipped at every street corner from the City Hall to the Battery and return, the following incident may serve as a pleasant reminder of our progress in civilization: A young Irishman of excellent address, and employed in a responsible position in an express company, appropriated, at the instigation of evil companions, some of the funds intrusted to his keeping. The larceny was detected, he was arrested and admitted his guilt. Meantime, some one had written to his parents in Ireland who lived in a remote parish in the humblest circumstances. The two old people sold their little cottage, as well as their pig and cow, and took steerage passage from Queenstown to New York. They arrived upon the day set for their son's sentence, entering the court-room as he was arraigned at the bar. A tearful recognition followed, and the prisoner, overwhelmed at this touching proof of his parents' love, begged the judge to listen to their supplication for mercy. Their simple story deeply affected the court, who discharged the defendant in their keeping, under his solemn promise to return with them to Ireland, there to honor and labor for them so long as they should live. FOOTNOTES: [Footnote 41: The whipping post and the pillory were in active use until comparatively recent times. Under Dutch rule the former occupied a conspicuous place in front of the Stadt Huys on the strand. As a matter of great leniency the floggings were sometimes conducted in a room to which the public was not admitted. But the disgrace of the performance was regarded as an integral part of the punishment. The offenders were at the same time branded and frequently banished. A New York paper, dated 1712, says that one woman at the whipping post "created much amusement by her resistance." The New York _Gazette_ for May 14, 1750, states: "Tuesday last one David Smith was convicted in the Mayor's Court of Taking or Stealing Goods off a Shop Window in this City, and was sentence to be whipped at the Cart's Tail round this Town and afterwards whipped at the Pillory which sentence was accordingly executed on him." The same paper for October 2, 1752, describes the pillorying of a boy for picking pockets and the whipping of an Irishman for stealing deerskins. In the olden days many a common scold was ducked into quiescence in the North River.] [Footnote 42: The periods of commutation are shown by the following table: ---------+----------------+ Sentence | Commutation | ---------+-------+--------+ Years | Years | Months | ---------+-------+--------+ 1 | .. | 2 | 2 | .. | 4 | 3 | .. | 8 | 4 | 1 | .. | 5 | 1 | 5 | 6 | 1 | 10 | 7 | 2 | 3 | 8 | 2 | 8 | 9 | 3 | 1 | 10 | 3 | 6 | 11 | 3 | 11 | 12 | 4 | 4 | 13 | 4 | 9 | 14 | 5 | 2 | 15 | 5 | 7 | 20 | 7 | 8 | 25 | 9 | 9 | 30 | 11 | 10 | 35 | 13 | 11 | ---------+-------+--------+ ] [Footnote 43: Cf. "Some Aspects of the Indeterminate Sentence," by C.D. Warner, 8 Yale Law Journal 219. See also 9 Yale Law Journal 17, as well as "Das Moderne Amerikanische Besserungssystem," Dr. Paul Herr (Berlin, 1907).] CHAPTER XV WOMEN IN THE COURTS AS WITNESSES Women appear in the criminal courts constantly as witnesses, although less frequently as complainants and defendants. As complainants are always witnesses, and as defendants may, and in point of fact generally do become so, whatever generalizations are possible regarding women in courts of law can most easily be drawn from their characteristics as givers of testimony. Roughly speaking, women exhibit about the same idiosyncrasies and limitations in the witness-chair as the opposite sex, and at first thought one would be apt to say that it would be fruitless and absurd to attempt to predicate any general principles in regard to their testimony, but a careful study of female witnesses as a whole will result in the inevitable conclusion that their evidence has virtues and limitations peculiar to itself. The ancient theory that woman was man's inferior showed itself in the tendency to reject, or at least to regard with suspicion, her evidence in legal matters. "The following law," says W.M. Best, "is attributed to Moses by Josephus: 'Let the testimony of women not be received on account of the _levity_ and _audacity_ of their sex'; a law which looks apocryphal, but which, even if genuine, could not have been of universal application.... The law of ancient Rome, though admitting their testimony in general, refused it in certain cases. The civil and canon laws of mediæval Europe seem to have carried the exclusion much further. Mascardus says: '_Feminis plerumque omnino non creditur, et id dumtaxat, quod sunt feminæ, quæ ut plurimum solent esse fraudulentæ, fallaces, et dolosæ_' [Generally speaking, no credence at all is given to women, and for this reason, because they _are_ women, who are usually deceitful, untruthful, and treacherous in the very highest degree]. And Lancelottus, in his 'Institutiones Juris Canonici,' lays it down in the most distinct terms, that women cannot in general be witnesses, citing the language of Virgil: '_Varium et mutabile semper femina._' ... "Bruneau, although a contemporary of Madame de Sévigné, did not scruple to write, in 1686, that the deposition of three women was only equal to that of two men. At Berne, so late as 1821, in the Canton of Vaud, so late as 1824, the testimony of two women was required to counterbalance that of one man.... A virgin was entitled to greater credit than a widow.... In the 'Canonical Institutions of Devotus,' published at Paris in 1852, it is distinctly stated that, except in a few peculiar instances, women are not competent witnesses in criminal cases. In Scotland also, until the beginning of the eighteenth century, sex was a cause of exclusion from the witness-box in the great majority of instances." Cockburn in his Memoirs tells of an incident during the trial of Glengarry, in Scotland, for murder in a duel, which is, perhaps, explicable by this extraordinary attitude:--A lady of great beauty was called as a witness and came into court heavily veiled. Before administering the oath, Lord Eskgrove, the judge (to whom this function belongs in Scotland), gave her this exposition of her duty: "Young woman, you will now consider yourself as in the presence of Almighty God and of this High Court. _Lift up your veil, throw off all your modesty, and look me in the face._" Whatever difference does exist in character between the testimony of men and women has its root in the generally recognized diversity in the mental processes of the two sexes. Men, it is commonly declared, rely upon their powers of reason; women upon their intuition. Not that the former is frequently any more accurate than the latter. But our courts of law (at least those in English-speaking countries) are devised and organized, perhaps unfortunately, on the principle that testimony not apparently deduced by the syllogistic method from the observation of relevant fact is valueless, and hence woman at the very outset is placed at a disadvantage and her usefulness as a probative force sadly crippled. The good old lady who takes the witness-chair and swears that she _knows_ the prisoner took her purse has perhaps quite as good a basis for her opinion and her testimony (even though she cannot give a single reason for her belief and becomes hopelessly confused on cross-examination) as the man who reaches the same conclusion ostensibly by virtue of having seen the defendant near by, observed his hand reaching for the purse, and then perceived him take to his heels. She has never been taught to reason and has really never found it necessary, having wandered through life by inference or, more frankly, by guesswork, until she is no longer able to point out the simplest stages of her most ordinary mental processes. As the reader is already aware, the value of all honestly given testimony depends first upon the witness's original capacity to observe the facts; second upon his ability to remember what he has seen and not to confuse knowledge with _imagination_, _belief_ or _custom_, and lastly, upon his power to express what he has, in fact, seen and remembers. Women do not differ from men in their original capacity to observe, which is a quality developed by the training and environment of the individual. It is in the second class of the witness's limitations that women as a whole are more likely to trip than men, for they are prone to swear to circumstances as facts, of _their own knowledge_, simply because they confuse what they have really observed with what they believe did occur or should have occurred, or with what they are convinced did happen simply because it was accustomed to happen in the past. Perhaps the best illustration of the female habit of swearing that facts occurred because they _usually_ occurred, was exhibited in the Twitchell murder trial in Philadelphia, cited in Wellman's "Art of Cross-Examination." The defendant had killed his wife with a blackjack, and having dragged her body into the back yard, carefully unbolted the gate leading to the adjacent alley and, retiring to the house, went to bed. His purpose was to create the impression that she had been murdered by some one from outside the premises. To carry out the suggestion, he bent a poker and left it lying near the body smeared with blood. In the morning the servant girl found her mistress and ran shrieking into the street. At the trial she swore positively that she was first obliged to _unbolt the door_ in order to get out. Nothing could shake her testimony, and she thus unconsciously negatived the entire value of the defendant's adroit precautions. He was justly convicted, although upon absolutely erroneous testimony. The old English lawyers occasionally rejected the evidence of women on the ground that they are "frail." But the exclusion of women as witnesses in the old days was not for psychological reasons, nor did it originate from a critical study of the probative value of their testimony. Though the conclusions to which women frequently jump may usually be shown by careful interrogation to be founded upon observation of actual fact, their habit of stating inferences often leads them to claim knowledge of the impossible--"wiser in [their] own conceit than seven men that can render a reason." In a very recent case where a clever thief had been convicted of looting various apartments in New York City of over eighty thousand dollars' worth of jewelry, the female owners were summoned to identify their property. The writer believes that in every instance these ladies were absolutely ingenuous and intended to tell the absolute truth. Each and every one positively identified various of the loose stones found in the possession of the prisoner as her own. This was the case even when the diamonds, emeralds and pearls had no distinguishing marks at all. It was a human impossibility actually to identify any such objects, and yet these eminently respectable and intelligent gentlewomen swore positively that they could recognize their jewels. They drew the inference merely that as the prisoner had stolen similar jewels from them these must be the actual ones which they had lost, an inference very likely correct, but valueless in a tribunal of justice. Where their inferences are questioned, women, as a rule, are much more ready to "swear their testimony through" than men. They are so accustomed to act upon inference that, finding themselves unable to substantiate their assertion by any sufficient reason, they become irritated, "show fight," and seek refuge in prevarication. Had they not, during their entire lives, been accustomed to mental short-cuts, they would be spared the humiliation of seeing their evidence "stricken from the record." One of the ladies referred to testified as follows: "Can you identify that diamond?" "_I am quite sure that it is mine._" "How do you know?" "_It looks exactly like it._" "But may it not be a similar one and not your own?" "_No; it is mine._" "But how? It has no marks." "_I don't care. I know it is mine. I SWEAR IT IS!_" The good lady supposed that, unless she swore to the fact, she might lose her jewel, which was, of course, not the case at all, as the sworn testimony founded upon nothing but inference left her in no better position than she was in before. The writer regrets to say that observation would lead him to believe that women as a rule have somewhat less regard for the spirit of their oaths than men, and that they are more ready, if it be necessary, to commit perjury. This may arise from the fact that women are fully aware that their sex protects them from the same severity of cross-examination to which men would be subjected under similar circumstances. It is to-day fatal to a lawyer's case if he be not invariably gentle and courteous with a female witness, and this is true even if she be a veritable Sapphira. In spite of these limitations, which, of course, affect the testimony of almost every person, irrespective of sex, women, with the possible exception of children, make the most remarkable witnesses to be found in the courts. They are almost invariably quick and positive in their answers, keenly alive to the dramatic possibilities of the situation, and with an unerring instinct for a trap or compromising admission. A woman will inevitably couple with a categorical answer to a question, if in truth she can be induced to give one at all, a statement of damaging character to her opponent. For example: "Do you know the defendant?" "Yes,--to my cost!" Or: "How old are you?" "Twenty-three,--old enough to have known better than to trust him." Forced to make an admission which would seem to hurt her position, the explanation, instead of being left for the re-direct examination of her own counsel, is instantly added to her answer then and there. "Do you admit that you were on Forty-second Street at midnight?" "Yes. _But it was in response to a message sent by the defendant through his cousin._" What is commonly known as "silent cross-examination" is generally the most effective. The jury realize the difficulties of the situation for the lawyer, and are not unlikely to sympathize with him, unless he makes bold to attack the witness, when they quickly change their attitude. One question, and that as to the witness's means of livelihood, is often sufficient. "How do you support yourself?" "I am a lady of leisure!" replies the witness (arrayed in flamboyant colors) snappishly. "That will do, thank you," remarks the lawyer with a smile. "You may step down." The writer remembers being nicely hoisted by his own petard on a similar occasion: "What do you do for a living?" he asked. The witness, a rather deceptively arrayed woman, turned upon him with a glance of contempt: "I am a respectable married woman, with seven children," she retorted. "_I do nothing for a living except_ cook, wash, scrub, make beds, clean windows, mend my children's clothes, mind the baby, teach the four oldest their lessons, take care of my husband, and try to get enough sleep to be up by five in the morning. I guess if some lawyers worked as hard as I do they would have sense enough not to ask impertinent questions." An amusing incident is recorded of how a feminine witness turned the laugh upon Mr. Francis L. Wellman, the noted cross-examiner. In his book he takes the opportunity to advise his lawyer readers to "avoid the mistake, so common among the inexperienced, of making much of trifling discrepancies. It has been aptly said," he continues, "that 'juries have no respect for small triumphs over a witness's self-possession or memory!' Allow the loquacious witness to talk on; he will be sure to involve himself in difficulties from which he can never extricate himself. _Some witnesses prove altogether too much; encourage them and lead them by degrees into exaggerations_ that will conflict with the common-sense of the jury." Mr. Wellman is famous for following this precept himself and, with one eye significantly cast upon the jury, is likely to lead his witness a merry dance until the latter is finally "bogged" in a quagmire of absurdities. Not long ago, shortly after the publication of his book, the lawyer had occasion to cross-examine a modest-looking young woman as to the speed of an electric car. The witness seemed conscious that she was about to undergo a severe ordeal, and Mr. Wellman, feeling himself complete master of the situation, began in his most winsome and deprecating manner: "And how fast, Miss ----, would you say the car was going?" "I really could not tell exactly, Mr. Wellman." "Would you say that it was going at ten miles an hour?" "Oh, fully that!" "Twenty miles an hour?" "Yes, I should say it was going twenty miles an hour." "Will you say it was going thirty miles an hour?" inquired Wellman with a glance at the jury. "Why, yes, I will say that it was." "Will you say it was going forty?" "Yes." "Fifty?" "Yes, I will say so." "Seventy?" "Yes." "Eighty?" "Yes," responded the young lady with a countenance absolutely devoid of expression. "A hundred?" inquired the lawyer with a thrill of eager triumph in his voice. There was a significant hush in the court-room. Then the witness, with a patient smile and a slight lifting of her pretty eyebrows, remarked quietly: "Mr. Wellman, _don't you think we have carried our little joke far enough_?" There is no witness in the world more difficult to cope with than a shrewd old woman who apes stupidity, only to reiterate the gist of her testimony in such incisive fashion as to leave it indelibly imprinted on the minds of the jury. The lawyer is bound by every law of decency, policy and manners to treat the aged dame with the utmost consideration. He must allow her to ramble on discursively in defiance of every rule of law and evidence in answer to the simplest question; must receive imperturbably the opinions and speculations upon every subject of both herself and (through her) of her neighbors; only to find when he thinks she must be exhausted by her own volubility, that she is ready, at the slightest opportunity, to break away again into a tangle of guesswork and hearsay, interwoven with conclusions and ejaculation. Woe be unto him if he has not sense enough to waive her off the stand! He might as well try to harness a Valkyrie as to restrain a pugnacious old Irishwoman who is intent on getting the whole business before the jury in her own way. In the recent case of Gustav Dinser, convicted of murder, a vigorous old lady took the stand and testified forcibly against the accused. She was as "smart as paint," as the saying goes, and resolutely refused to answer any questions put to her by counsel for the defence. Instead, she would raise her voice and make a savage onslaught upon the prisoner, rehearsing his brutal treatment of the deceased on previous occasions, and getting in the most damaging testimony. "Do you say, Mrs. ----," the lawyer would inquire deferentially, "that you heard the sound of _three_ blows?" "Oh, thim blows!" the old lady would cry--"thim turrible blows! I could hear the villain as he laid thim on! I could hear the poor, pitiful groans av her, and she so sufferin'! 'Twas awful! Howly Saints, 'twould make yer blood run cowld!" "Stop! stop!" exclaimed the lawyer. "Ah, stop is it? Ye can't stop me till Oi've had me say to tell the whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste is afther murtherin' the poor thing,' says I; 'run out an' git an officer!'" "I object to all this!" shouts the lawyer. "Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been after objectin' if ye'd heard thim turrible blows that kilt her--the poor, sufferin', swate crayter! I hope he gits all that's comin' to him--bad cess to him for a blood-thirsty divil!" The lawyer ignominiously abandoned the attack. The writer recalls a somewhat similar instance, but one even better exhibiting the cleverness of an old woman, which occurred in the year 1901. A man named Orlando J. Hackett, of prepossessing appearance and manners, was on trial, charged with converting to his own use money which had been intrusted to him for investment in realty. The complainant was a shrewd old lady, who, together with her daughter, had had a long series of transactions with Hackett which would have entirely confused the issue could the defence have brought them before the jury. The whole contention of the prosecution was that Hackett had received the money for one purpose and used it for another. During preparation for the trial the writer had had both ladies in his office and remembers making the remark: "Now, Mrs. ----, don't forget that the charge here is that you gave Mr. Hackett the money to put into real estate. Nothing else is comparatively of much importance." "Be sure and remember that, mother," the daughter had admonished her. In the course of a month the case came on for trial before Recorder Goff, in Part II of the General Sessions. Mrs. ---- gave her testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now Lieutenant-Governor of the State, arose to cross-examine her. "Madam," he began courteously, "you say you gave the defendant money?" "I told him to put it into real estate, _and he said he would_!" replied Mrs. ---- firmly. "I did not ask you that, Mrs. ----," politely interjected Mr. Chanler. "How _much_ did you give him?" "_I told him to put it into real estate_, and he said he would!" repeated the old lady wearily. "But, madam, you do not answer my question!" exclaimed Chanler. "How _much_ did you give him?" "I told him to put it into real----" began the old lady again. "Yes, yes!" cried the lawyer; "we know that! Answer the question." "----estate, _and he said he would_!" finished the old woman innocently. "If your Honor please, I will excuse the witness. And I move that her answers be stricken out!" cried Chanler savagely. The old lady was assisted from the stand, but as she made her way with difficulty towards the door of the court-room she could be heard repeating stubbornly: "I told him to put it _into real estate,--and he said he would_!" Almost needless to say, Hackett was convicted and sentenced to seven years in State's prison. To recapitulate, the quickness and positiveness of women make them ordinarily better witnesses than men; they are vastly more difficult to cross-examine; their sex protects them from many of the most effective weapons of the lawyer, with the result that they are the more ready to yield to prevarication; and, even where the possibility of complete and unrestricted cross-examination is afforded, their tendency to inaccurately inferential reasoning, and their elusiveness in dodging from one conclusion to another, render the opportunity of little value. In general, however, women's testimony differs little in quality from that of men, all testimony being subject to the same three great limitations irrespective of the sex of the witness, and the conclusions set forth above are merely the result of an effort on the part of the writer to comment somewhat upon those small differences which, under close scrutiny, may fairly be said to exist. These differences are quite as noticeable at the breakfast-table as in the court-room; and are no more patent to the advocate than to the ordinary male animal whose forehead habitually reddens when he hears the unanswerable reason which, in default of all others, explains and glorifies the mental action of his wife, sister or mother: "Just because!" AS COMPLAINANTS AND DEFENDANTS The ratio of women to men indicted and tried for crime is, roughly, about one to ten. Could adequate statistics be procured, the proportion of female to male complainants in criminal cases would very likely prove to be about the same. In a very substantial proportion, therefore, of all prosecutions for crime a woman is one of the chief actors. The law of the land compels the female prisoner to submit the question of her guilt or innocence to twelve individuals of the opposite sex; and permits the female complainant to rehearse the story of her wrongs before the same collection of colossal intellects and adamantine hearts. The first thing the ordinary woman hastens to do if she be summoned to appear in a court of justice is not, as might be expected, to think over her testimony or try to recall facts obliterated or confused by time, but to buy a new hat; and precisely the same thing is true of the female defendant called to the bar of justice, whether it be for stealing a pair of gloves or poisoning her lover. Yet how far does the element of sex defeat the ends of justice? To answer this question it is necessary to determine how far juries are liable to favor the testimony of a woman plaintiff merely because she is a woman, and how far sympathy for a woman arraigned as a prisoner is likely to warp their judgment. As to the first, it is fairly safe to say that a woman is much more likely to win a verdict in a civil court or to persuade the jury that the prisoner is guilty in a criminal case than a man would be in precisely similar circumstances. In most criminal prosecutions for the ordinary run of felonies little injustice is likely to result from this. There is one exception, however, where juries should reach conclusions with extreme caution, namely, where certain charges are brought by women against members of the opposite sex. Here the jury is apt to leap to a conclusion, rendered easy by the attractiveness of the witness and the feeling that the defendant is a "cur anyway," and ought to be "sent up." The difficulty of determining, even in one's office, the true character of a plausible woman is enhanced tenfold in the court-room, where the lawyer is generally compelled to proceed upon the assumption that the witness is a person of irreproachable life and antecedents. Almost any young woman may create a favorable impression, provided her taste in dress be not too crude, and, even when it is so, the jury are not apt to distinguish carefully between that which cries to Heaven and that which is merely "elegant." When the complaining witness is a woman who has merely lost money through the acts of the defendant, the jury are not so readily moved to accept her story _in toto_ as when the crime charged is of a different character. They realize that the complainant, feeling that she has been injured, may be inclined to color her testimony, perhaps unconsciously, until the wrong becomes a crime. An ordinary example of this variety of prosecution is where the witness is a young woman from the East Side, usually a Polish or Russian Jewess, who charges the defendant, a youth of about her own age, with stealing her money by means of false pretences. They have been engaged to be married, and she has turned over her small savings to him to purchase the diamond ring and perhaps set him up in a modest business of his own. He has then fallen in love with some other girl, has broken the engagement, and the ring now adorns the fourth finger of her rival. Her money is gone. She is without a _dot_. She hurries with her parents and loudly vociferating friends to the Essex Market Police Court, and secures a warrant for the defendant on the theory that he defrauded her by "trick and device" or "false representations." Usually the only "representation" has been a _promise_ to marry her. Her real motive is revenge upon her faithless _fiancé_. In nine cases out of ten the fellow is a cad, who has deliberately deserted her after getting her money, but it is doubtful whether any real crime is involved. If the judge lets the case go to the jury it is a pure gamble as to what the result will be, and it may largely turn on the girl's physical attractiveness. If she be pretty and demure a mixture of emotions is aroused in the jury. "He probably did love her," say the twelve, "because any one would be likely to do so. If he did love her, of course he didn't falsely pretend to do so; but if he deserted a woman like that he ought to be in jail anyway." Thus the argument that ought to _acquit_ in fact may _convict_ the defendant. If the rival also is pretty, hopeless confusion results; while if the complainant be a homely girl the jury feels that he must have intended to swindle her anyway, as he could never have honestly intended to marry her. Thus in any case the Lothario is apt to pay a severe penalty for his faithlessness. The man prosecuted by a woman, provided she cannot be persuaded to withdraw the charge against him, is likely to get but cold consideration for his side of the story and short shrift in the jury-room. Turn about, if he can get a young and attractive woman to swear to his alibi or good reputation, the honest masculine citizen whom he has defrauded may very likely have to whistle for his revenge. Many a scamp has gone free by producing some sweetly demure maiden who faithfully swears that she knows him to be an honest man. A blush at the psychological moment and a wink from the lawyer is quite enough to lead the jury to believe that, if they acquit the defendant, they will "make the young lady happy," whereas if he is convicted she will remain for aye a heart-broken spinster. Like enough she may be only the merest acquaintance. The writer is not likely to forget a distinguished lawyer's instructions to his client--who happened also to be a childhood acquaintance--as she was about to go into court as the plaintiff in a suit for damages: "I would fold my hands in my lap, Gwendolyn--yes, like that--and be calm, very calm. And, Gwendolyn, above all things, be _demure_, Gwendolyn! Be _demure_!" Gwendolyn was the demurest of the demure, letting her eyes fall beneath their pendant black lashes at the conclusion of each answer, and won her case without the slightest difficulty. The unconscious or conscious influence of women upon the intellects of jurymen has given rise to a very prevalent impression that it is difficult if not impossible successfully to prosecute a woman for crime. This feeling expresses itself in general statements to the effect that as things stand to-day a woman may commit murder with impunity. Experience, supplemented by the official records, demonstrates, however, that, curious as it must seem, the same sentiment aroused by a woman supposed to have been _wronged_ is not inspired in a jury by a woman _accused_ of crime. It is, indeed, true that juries are apt to be more lenient with women than with men, but this leniency shows itself not in acquitting them of the crimes charged against them, but of finding them guilty in lower degrees. Of course flagrant miscarriages of justice frequently occur, which, by reason of their widespread publicity in the press, would seem to justify the almost universal opinion that women are immune from the penalties for homicide. It is also true that such miscarriages of justice are more likely when the defendant is a woman than if he be a man. One of these hysterical acquittals which give color to popular impression, but which the writer believes to be an exception, was the case of a young mother tried and acquitted for murder in the first degree, December 22, 1904. This young woman, whose history was pathetic in the extreme, was shown clearly by the evidence to have deliberately taken the life of her child by giving it carbolic acid. The story was a shocking one, yet the jury apparently never considered at all the possibility of convicting her, but on retiring to the jury-room spent their time in discussing how much money they should present her on her acquittal. No better actor ever played a part upon the court-room stage than old "Bill" Howe. His every move and gesture was considered with reference to its effect upon the jury, and the climax of his summing-up was always accompanied by some dramatic exhibition calculated to arouse sympathy for his client. Himself an adept at shedding tears at will, he seemed able to induce them when needed in the lachrymal glands of the most hardened culprit whom he happened to be defending. Mr. Wellman tells the story of how he was once prosecuting a woman for the murder of her lover, whom she had shot rather than allow him to desert her. She was a parson's daughter who had gone wrong and there seemed little to be said in her behalf. She sat at the bar the picture of injured innocence, with a look of spirituality which she must have conjured up from the storehouse of her memories of her father. Howe was rather an exquisite so far as his personal habits were concerned, and allowed his finger-nails to grow to an extraordinary length. He had arranged that at the climax of his address to the jury he would turn and, tearing away the slender hands of his client from her tear-stained face, challenge the jury to find guilt written there. Wellman was totally unprepared for this and a shiver ran down his spine when he saw Howe, his face apparently surcharged with emotion, turn suddenly towards his client and roughly thrust away her hands. As he did so he embedded his finger-nails in her cheeks, and the girl uttered an involuntary scream of nervous terror and pain that made the jury turn cold. "Look, gentlemen! Look in this poor creature's face! Does she look like a guilty woman? No! A thousand times no! Those are the tears of innocence and shame! Send her back to her aged father to comfort his old age! Let him clasp her in his arms and press his trembling lips to her hollow eyes! Let him wipe away her tears and bid her sin no more!" The jury acquitted, and Wellman, aghast, followed them downstairs to inquire how such a thing were possible. The jurors said that they had agreed to disclose nothing of their deliberations. "But," explained Wellman, "you see, in a way I am your attorney, and I want to know how to do better next time. She had offered to plead guilty if she could get off with twenty years!" The abashed jury slunk downstairs in silence and the secret of their deliberations remains as yet untold. In spite of such cases, where guilty women have been acquitted through maudlin sentiment or in response to popular clamor, nothing could be more erroneous than the idea that few women who are brought to the bar of justice are made to suffer for their offences. Thus, although no woman has suffered the death penalty in New York County in twenty years, _the average number of convictions for crime is practically the same for women as for men in proportion to the number indicted_. The last unreversed conviction of a woman for murder in the first degree was that of Chiara Cignarale, in May, 1887. Her sentence was commuted to life imprisonment. Since then thirty women have been actually tried before juries for homicide with the following results: Convicted of murder in first degree 0 " " murder in second degree 3 " " manslaughter in first degree 10 " " manslaughter in second degree 10 Acquitted 7 -- Total 30 The percentage of convictions to acquittals is as follows: ----------+-------------+------------+-------------+----------- | Convictions | Acquittals | Convictions | Acquittals | | | Per Cent | Per Cent ----------+-------------+------------+-------------+----------- 1887-1907 | 23 | 7 | 77 | 23 ----------+-------------+------------+-------------+----------- It is distinctly interesting to compare this with the table showing the results of all the homicide trials for the past eight years irrespective of the sex of the defendants: --------+-------------+------------+-------------+----------- | Convictions | Acquittals | Convictions | Acquittals | | | Per Cent | Per Cent --------+-------------+------------+-------------+----------- 1900 | 5 | 12 | 29 | 71 1901 | 17 | 17 | 50 | 50 1902 | 15 | 11 | 58 | 42 1903 | 24 | 8 | 75 | 25 1904 | 19 | 14 | 58 | 42 1905 | 18 | 13 | 58 | 42 1906 | 21 | 22 | 49 | 51 1907 | 16 | 10 | 62 | 38 --------+-------------+------------+-------------+----------- Total | 135 | 107 | Aver. 55 | Aver. 45 --------+-------------+------------+-------------+----------- The reader will observe that the percentage of convictions to acquittals of women defendants averages twenty-two per cent greater than the percentage for both sexes. A more elaborate table would show that where the defendants are men there are a greater proportionate number of _acquittals_, but more verdicts in higher degrees. A verdict of manslaughter in the second degree in the case of a man charged with murder is infrequent, but convictions of murder in the second degree are exceedingly common. The reason for the higher percentage of convictions of women is that fewer women who commit crime are prosecuted than men, and that they are rarely indicted unless they are clearly guilty of the degree of crime charged against them; while practically every man who is charged with homicide and who, it seems, may be found guilty is indicted for murder in the first degree. The trial of women for crime invariably arouses keen public interest, and the dethronement of a Czar, or the assassination of an Emperor, pales to insignificance before the prosecution of a woman for murder. Some of this interest is fictitious and stimulated merely by the yellow press, but a great deal of it is genuine. The writer remembers attending a dinner of gray-headed judges and counsellors during the trial of Ann Eliza, alias "Nan," Patterson, where one would have supposed that the lightest subject of conversation would be not less weighty than the constitutionality of an income tax, and finding to his astonishment that the only topic for which they showed any zest was whether "Nan" would be found guilty. One of the earliest, if not the earliest, record of a woman being held for murder is that of Agnes Archer, indicted by twelve men on April 4, 1435, sworn before the mayor and coroner to inquire as to the death of Alice Colynbourgh. The quaint old report begins in Latin, but "the pleadings" are set forth in the language of the day, as follows: "Agnes Archer, is that thy name? which answered, yes.... Thou art endyted that thou ... feloney moderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed.... I am not guilty of thoo dedys, ne noon of hem, God help me so.... How wylte thou acquite the?... By God and by my neighbours of this town." The subsequent history of Agnes is lost in obscurity, but since she had to procure but thirty-six compurgators who were prepared to swear that they believed her innocent, and as she was at liberty to choose these herself from her native village of Winchelsea, it is probable that she escaped.[44] Fortunately the sight of a woman, save of the very lowest class, at the bar of justice is rare. The number of cases where women of good environment appear as defendants in the criminal courts in the course of a year may be numbered upon the fingers of a single hand, and, although the number of female defendants may equal ten per cent of the total number of males, not one-tenth of the women brought to the bar of justice have had the benefit of an honest bringing up and good surroundings. FOOTNOTES: [Footnote 44: Cf. Thayer, as cited, _supra_.] CHAPTER XVI TRICKS OF THE TRADE "Tricks and treachery," said Benjamin Franklin, "are the practice of fools that have not wit enough to be honest." Had the kindly philosopher been familiar with all the exigencies of the criminal law he might have added a qualification to this somewhat general, if indisputably moral, maxim. Though it doubtless remains true as a guiding principle of life that "Honesty is the best policy," it would be an unwarrantable aspersion upon the intellectual qualities of the members of the criminal bar to say that the tricks by virtue of which they often get their clients off are "_the practice of fools_." On the contrary, observation would seem to indicate that in many instances the wiser, or at least the more successful, the practitioner of criminal law becomes, the more numerous and ingenious become the "tricks" which are his stock in trade. This must not be taken to mean that there are not high-minded and conscientious practitioners of criminal law, many of them financially successful, some filled with a noble humanitarian purpose, and some drawn to their calling by a sincere enthusiasm for the vocation of the advocate which, in these days of "business" law and commercial methods, reaches perhaps its highest form in the criminal courts. There are no more "tricks" practised in these tribunals than in the civil, but they are more ingenious in conception, more lawless in character, bolder in execution and less shamefaced in detection. Let us not be too hard upon our brethren of the criminal branch. Truly, their business is to "get their clients off." It is unquestionably a generally accepted principle that it is better that ninety-nine guilty men should escape than that one innocent man should be convicted. However much persons of argumentative or philosophic disposition may care to quarrel with this doctrine, they must at least admit that it would doubtless appear to them of vital truth were they defending some trembling client concerning whose guilt or innocence they were themselves somewhat in doubt. "Charity believeth all things," and the prisoner is entitled to every reasonable doubt, even from his own lawyer. It is the lawyer's business to create such a doubt if he can, and we must not be too censorious if, in his eagerness to raise this in the minds of the jury, he sometimes oversteps the bounds of propriety, appeals to popular prejudices and emotions, makes illogical deductions from the evidence, and impugns the motives of the prosecution. The district attorney should be able to take care of himself, handle the evidence in logical fashion, and tear away the flimsy curtain of sentimentality hoisted by the defence. These are hardly "tricks" at all, but sometimes under the name of advocacy a trick is "turned" which deserves a much harsher name. Not long ago a celebrated case of murder was moved for trial after the defendant's lawyer had urged him in vain to offer a plea of murder in the second degree. A jury was summoned and, as is the usual custom in such cases, examined separately on the "_voir dire_" as to their fitness to serve. The defendant was a German, and the prosecutor succeeded in keeping all Germans off the jury until the eleventh seat was to be filled, when he found his peremptory challenges exhausted. Then the lawyer for the prisoner managed to slip in a stout old Teuton, who replied, in answer to a question as to his place of nativity, "Schleswig-Holstein." The lawyer made a note of it, and, the box filled, the trial proceeded with unwonted expedition. The defendant was charged with having murdered a woman with whom he had been intimate, and his guilt of murder in the first degree was demonstrated upon the evidence beyond peradventure. At the conclusion of the case, the defendant not having dared to take the stand, the lawyer arose to address the jury in behalf of what appeared a hopeless cause. Even the old German in the back row seemed plunged in soporific inattention. After a few introductory remarks the lawyer raised his voice and in heart-rending tones began: "In the beautiful county of _Schleswig-Holstein_ sits a woman old and gray, waiting the message of your verdict from beyond the seas." (Number 11 opened his eyes and looked at the lawyer as if not quite sure of what he had heard.) "There she sits" (continued the attorney), "in _Schleswig-Holstein_, by her cottage window, waiting, waiting to learn whether her boy is to be returned to her outstretched arms." (Number 11 sat up and rubbed his forehead.) "Had the woman, who so unhappily met her death at the hands of my unfortunate client, been _like those women of Schleswig-Holstein_--noble, sweet, pure, lovely women of _Schleswig-Holstein_--I should have naught to say to you in his behalf." (Number 11 leaned forward and gazed searchingly into the lawyer's face.) "But alas, no! _Schleswig-Holstein_ produces a virtue, a loveliness, a nobility of its own." (Number 11 sat up and proudly expanded his chest.) When, after about an hour or more of _Schleswig-Holstein_ the defendant's counsel surrendered the floor to the district attorney, the latter found it quite impossible to secure the slightest attention from the eleventh juror, who seemed to be spending his time in casting compassionate glances in the direction of the prisoner. In due course the jury retired, but had no sooner reached their room and closed the door than the old Teuton cried, "Dot man iss _not guilty_!" The other eleven wrestled with him in vain. He remained impervious to argument for seventeen hours, declining to discuss the evidence, and muttering at intervals, "Dot man iss _not guilty_!" The other eleven stood unanimously for murder in the first degree, which was the only logical verdict that could possibly have been returned upon the evidence. At last, worn out with their efforts, they finally induced the old Teuton to compromise with them on a verdict of manslaughter. Wearily they straggled in, the old native of Schleswig-Holstein bringing up the rear, bursting with exultation and with victory in his eye. "Gentlemen of the jury, have you agreed upon a verdict?" inquired the clerk. "We have," replied the foreman. "How say you, do you find the defendant guilty or not guilty?" "Guilty--of manslaughter," returned the foreman feebly. The district attorney was aghast at such a miscarriage of justice, and the judge showed plainly by his demeanor his opinion of such a verdict. But the old inhabitant of Schleswig-Holstein cared for this not a whit. The old mother in Schleswig-Holstein might still clasp her son in her arms before she died! The defendant was arraigned at the bar. Then for the first time, and to the surprise and disgust of No. 11, he admitted in answer to the questions of the clerk that his parents were _both dead_ and that he was born in _Hamburg_, a town for whose inhabitants the old juryman had, like others of his compatriots, a constitutional antipathy. The "tricks" of the trade as practised by the astute and unscrupulous criminal lawyer vary with the stage of the case and the character of the crime charged. They are also adapted with careful attention to the disposition, experience and capacity of the particular district attorney who happens to be trying the case against the defendant. An illustration of one of these occurred during the prosecution of a bartender for selling "spirituous liquors" without a proper license. He was defended by an old war-horse of the criminal bar famous for his astuteness and ability to laugh a case out of court. The assistant district attorney who appeared against him was a young man recently appointed to office, and who was almost overcome at the idea of trying a case against so well known a practitioner. He had personally conducted but very few cases, had an excessive conception of his own dignity, and dreaded nothing so much as to appear ridiculous. Everything, except the evidence, favored the defendant, who, however, was, beyond every doubt, guilty of the offence charged. The young assistant put in his case, calling his witnesses one by one, and examining them with the most feverish anxiety lest he should forget something. The lawyer for the defence made no cross-examination and contented himself with smiling blandly as each witness left the stand. The youthful prosecutor became more and more nervous. He was sure that something was wrong, but he couldn't just make out what. At the conclusion of the People's case the lawyer inquired, with a broad grin, "if that was all." The young assistant replied that it was, and that, in his opinion, it was "quite enough." "Let that be noted by the stenographer," remarked the lawyer. "Now, if your Honors please," he continued, addressing the three judges of the Special Sessions, "you all know how interested I am to see these young lawyers growing up. I like to help 'em along--give 'em a chance--teach 'em a thing or two. I trust it may not be out of place for me to say that I like my young friend here and think he tried his case very well. But he has a great deal to learn. I'm always glad, as I said, to give the boys a chance--to give 'em a little experience. I shall not put my client upon the stand. It is not necessary. _The fact is_," turning suddenly to the unfortunate assistant district attorney--"my client _has_ a license." He drew from his pocket a folded paper and handed it to the paralyzed young attorney with the harsh demand: "What do you say to that?" The assistant took the paper in trembling fingers and perused it as well as he could in his unnerved condition. "Mr. District Attorney," remarked the presiding justice dryly (which did not lessen the confusion of the young lawyer), "is this a fact? Has the defendant a license?" "Yes, your Honors," replied the assistant; "this paper seems to be a license." "Defendant discharged!" remarked the court briefly. The prisoner stepped from the bar and rapidly disappeared through the door of the court-room. After enough time had elapsed to give him a good start and while another case was being called, the old lawyer leaned over to the assistant and remarked with a chuckle: "I am always glad to give the boys a chance--help 'em along--teach 'em a little. That license was a _beer_ license!" BEFORE TRIAL To begin at the beginning, whenever a person has been arrested, charged with crime, and has secured a criminal lawyer to defend him, the first move of the latter is naturally to try and nip the case in the bud by inducing the complaining witness to abandon the prosecution. In a vast number of cases he is successful. He appeals to the charity of the injured party, quotes a little of the Scriptures and the "Golden Rule," pictures the destitute condition of the defendant's family should he be cast into prison, and the dragging of an honored name in the gutter if he should be convicted. Few complainants have ever before appeared in a police court, and are filled with repugnance at the rough treatment of prisoners and the suffering which they observe upon every side. After they have seen the prisoner emerge from the cells, pale, hollow-eyed, bedraggled, and have beheld the tears of his wife and children as they crowd around the husband and father, they begin to realize the horrible consequences of a criminal prosecution and to regret that they ever took the steps which have brought the wrong-doer where he is. The district attorney has not yet taken up the case; the prosecution up to this point is of a private character; there are loud promises of "restitution" and future good behavior from the defendant, and the occasion is ripe for the lawyer to urge the complainant to "temper justice with mercy" and withdraw "before it be too late and the poor man be ruined forever." If the complainant is, however, bent on bringing the defendant to justice and remains adamantine to the arguments of the lawyer and the tears of the defendant's family connections, it remains for the prisoner's attorney to endeavor to get the case adjourned "until matters can be adjusted"--to wit, restitution made if money has been stolen, or doctors' bills paid if a head has been cracked, with perhaps another chance of "pulling off" the complainant and his witnesses. Failing in an attempt to secure an adjournment, two courses remain open: first, to persuade the court that the matter is a trivial one arising out of petty spite, is all a mistake, or that at best it is a case of "disorderly conduct" (and thus induce the judge to "turn the case out" or inflict some trifling punishment in the shape of a fine); or, second, if it be clear that a real crime has been committed, to clamor for an immediate hearing in order, if it be secured, to subject the prosecution's witnesses to a most exhaustive cross-examination, and thus get a clear idea of just what evidence there is against the accused. At the conclusion of the complainant's case, if it appear reasonably certain that the magistrate will "hold" the prisoner for the action of a superior court, the lawyer will then "waive further examination," or, in other words, put in no defence, preferring the certainty of having to face a jury trial to affording the prosecution an opportunity to discover exactly what defence will be put in and to secure evidence in advance of the trial to rebut it. Thus it rarely happens in criminal cases of importance that the district attorney knows what the defence is to be until the defendant himself takes the stand, and, by "waiving further examination" in the police court, the astute criminal attorney may select at his leisure the defence best suited to fit in with and render nugatory the prosecution's evidence. The writer has frequently been told by the attorney for a defendant _on trial_ for crime that "the defence has not yet been decided upon." In fact, such statements are exceedingly common. In many courts the attitude of all parties concerned seems to be that the defendant will put up a perjured defence (so far as his own testimony is concerned, at any rate) as a matter of course, and that this is hardly to be taken against him. On the other hand, if a guilty defendant has been so badly advised as to give his own version of the case before the magistrate in the first instance, it requires but slight assiduity on the part of the district attorney to secure, in the interval between the hearing and the jury trial, ample evidence to rebut it. As illustrating merely the fertility and resourcefulness of some defendants (or perhaps their counsel), the writer recalls a case which he tried in the year 1902 where the defendant, a druggist, was charged with manslaughter in having caused the death of an infant by filling a doctor's prescription for calomel with morphine. It so happened that two jars containing standard pills had been standing side by side upon an adjacent shelf, and, a prescription for morphine having come in at the same time as that for the calomel, the druggist had carelessly filled the morphine prescription with calomel, and the calomel prescription with morphine. The adult for whom the morphine had been prescribed recovered immediately under the beneficent influence of the calomel, but the baby for whom the calomel had been ordered died from the effects of the first morphine pill administered. All this had occurred in 1897--five years before. The remainder of the pills had disappeared. Upon the trial (no inconsistent contention having been entered in the police court) the prisoner's counsel introduced six separate defences, to wit: That the prescription had been _properly_ filled with calomel and that the child had died from natural causes, the following being suggested: 1. Acute gastritis. 2. Acute nephritis. 3. Cerebro-spinal meningitis. 4. Fulminating meningitis. 5. That the child had died of _apomorphine_, a totally distinct poison. 6. That it had received and taken calomel, but that, having eaten a small piece of pickle shortly before, the conjunction of the vegetable acid with the calomel had formed, in the child's stomach, a precipitate of corrosive sublimate, from which it had died. These were all argued with great learning. During the trial the box containing the balance of the pills, which the defence contended were calomel, unexpectedly turned up. It has always been one of the greatest regrets of the writer's life that he did not then and there challenge the defendant _to eat one of the pills_ and thus prove the good faith of his defence. This was one of the very rare cases where a chemical analysis has been conducted in open court. The chemist first tested a standard trade morphine pill with sulphuric acid, so that the jury could personally observe the various color reactions for themselves. He then took one of the contested pills and subjected it to the same test. The first pill had at once turned to a brilliant rose, but the contested pill, being antiquated, "hung fire," as it were, for some seconds. As nothing occurred, dismay made itself evident on the face of the prosecutor, and for a moment he felt that all was lost. Then the five-year-old pill slowly turned to a faint brown, changed to a yellowish red, and finally broke into an ardent rose. The jury settled back into their seats with an audible "Ah!" and the defendant was convicted. Let us return, however, to that point in the proceedings where the defendant has been "held for trial" by the magistrate. The prisoner's counsel now endeavors to convince the district attorney that "there is nothing in the case," and continues unremittingly to work upon the feelings of the complainant. If he finds that his labors are likely to be fruitless in both directions, he may now seek an opportunity to secure permission for his client to appear before the grand jury and explain away, if possible, the charge against him. We will assume, however, that, in spite of the assiduity of his lawyer, the prisoner has at last been indicted and is awaiting trial. What can be done about it? Of course, if the case could be indefinitely adjourned, the complainant or his chief witness might die or move away to some other jurisdiction, and if the indictment could be "pigeon-holed" the case might die a natural death of itself. Indictments, however, in New York County, whatever may be the case elsewhere, are no longer "pigeon-holed," and they cannot be adequately "lost," since certified copies are made of each. The next step, therefore, is to secure as long a time as possible before trial. Usually a prisoner has nothing to lose and everything to gain by delay, and the excuses offered for adjournment are often ingenious in the extreme. The writer knows one criminal attorney who, if driven to the wall in the matter of excuses, will always serenely announce the death of a near relative and the obligation devolving upon him to attend the funeral. Another, as a last resort, regularly is attacked in open court by severe cramps in the stomach. If the court insists on the trial proceeding, he invariably recovers. Of course, there are many legitimate reasons for adjourning cases which the prosecution is powerless to combat. The most effective method invoked to secure delay, and one which it is practically useless for the district attorney to oppose, is an application "to take testimony" upon commission in some distant place. Here again it must be borne in mind that such applications are often legitimate and proper and should be granted in simple justice to the defendant. Although this right to take the testimony of absent witnesses is confined in New York State to the defendant and does not extend to the prosecution, and is undoubtedly often the subject of much abuse, it not infrequently is the cause of saving an innocent man. An example of this was the case of William H. Ellis, recently brought into the public eye through his connection with the treaty between the United States Government and King Menelik of Abyssinia. Ellis was accused in 1901 by a young woman of apparently excellent antecedents and character of a serious crime. Prior to his indictment a colored man employed in his office (the alleged scene of the crime) disappeared. When the case was moved for trial, Ellis, through his attorneys, moved for a commission to take the testimony of this absent, but clearly material, witness in one of the remote States of Mexico--a proceeding which would require a journey of some two weeks on muleback, beyond the railway terminus. The district attorney, in view of the peculiarly opportune disappearance of this person from the jurisdiction, strenuously opposed the application and hinted at collusion between Ellis and the witness. The application, however, was granted, and a delay of over a month ensued. During that time evidence was procured by the counsel of the prisoner showing conclusively that the complaining witness _was mentally unsound and had made similar and groundless charges against others_. The indictment was at once dismissed. But such delays are not always so righteously employed. There is a story told of a case where a notorious character was charged with the unusual crime of "mayhem"--biting off another man's finger. The defendant's counsel secured adjournment after adjournment--no one knew why. At last the case was moved for trial and the prosecution put in its evidence, clearly showing the guilt of the prisoner. At the conclusion of the People's testimony, the lawyer for the defendant arose and harshly stigmatized the story of the complainant as a "pack of lies." "I will prove to you in a moment, gentlemen," exclaimed he to the jury, "how absurd is this charge against my innocent client. Take the stand!" The prisoner arose and walked to the witness-chair. "Open your mouth!" shouted the lawyer. The defendant did so. He had not a tooth in his head. The delay had been advantageously employed. The importance of mere delay to a guilty defendant cannot well be overestimated. "You never can tell what may happen to knock a case on the head." For this reason a sufficiently paid and properly equipped counsel will run the whole gamut of criminal procedure, and-- 1. Demur to the indictment. 2. Move for an inspection of the minutes of the proceedings before the grand jury. 3. Move to dismiss the indictment for lack of sufficient evidence before that body. 4. Move for a commission to take testimony. 5. Move for a change of venue. 6. Secure, where possible, a writ of habeas corpus and a stay of proceedings from some federal judge on the ground that his client is confined without due process of law. All these steps he will take _seriatim_, and some cases have been delayed for as much as two years by merely invoking "legitimate" legal processes. In point of fact it is quite possible for any defendant absolutely to prevent an immediate trial provided he has the services of vigilant counsel, for these are not the only proceedings of which he can avail himself. A totally distinct method is for the defendant to secure bail, and, after securing as many adjournments as possible, simply flee the jurisdiction. He will then remain away until the case is hopelessly stale, or he no longer fears prosecution. In default of all else he may go "insane" just before the case is moved for trial. This habit of the criminal rich when brought to book for their misdeeds is too well known to require comment. All that is necessary is for a sufficient number of "expert" alienists to declare it to be their opinion that the defendant is mentally incapable of understanding the proceedings against him or of preparing his defence, and he is shifted off to a "sanitarium" until some new sensation occupies the public mind and his offences are partially forgotten. In this way justice is often thwarted and the law cheated of its victim, but unless fortune favors him, sooner or later the indicted man must return for trial and submit the charge against him to a jury. But if this happens, even if he be guilty, all hope need not be lost. There are still "tricks of the trade" which may save him from the clutches of the law. AT THE TRIAL What can be done when at last the prisoner who has fought persistently for adjournment has been forced to face the witnesses against him and submit the evidence to a jury of peers? Let us assume further that he has been "out on bail," with plenty of opportunity to prepare his defence and lay his plans for escape. When the case is finally called and the defendant takes his seat at the bar after a lapse of anywhere from six months to a year or more after his arrest, the first question for the district attorney to investigate is whether or no the person presenting himself for trial be in point of fact the individual mentioned in the indictment. This is often a difficult matter to determine. "Ringers"--particularly in the magistrates' courts--are by no means unknown. Sometimes they appear even in the higher courts. If the defendant be an ex-convict or a well-known crook, his photograph and measurements will speedily remove all doubt upon the subject, but if he be a foreigner (particularly a Pole, Italian or a Chinaman), or even merely one of the homogeneous inhabitants of the densely-populated East Side of New York, it is sometimes a puzzling problem. "Mock Duck," the celebrated Highbinder of Chinatown, who was set free after two lengthy trials for murder, was charged not long ago with a second assassination. He was pointed out to the police by various Chinamen, arrested and brought into the Criminal Courts building for identification, but for a long time it was a matter of uncertainty whether friends of his (masquerading as enemies) had not surrendered a substitute. Luckily the assistant district attorney who had prosecuted this wily and dangerous Celestial in the first instance was able to identify him. Many years ago, during the days of Fernando Wood, a connection of his was reputed to be the power behind the "policy" business in New York City--the predecessor of the notorious Al Adams. A "runner" belonging to the system having been arrested and policy slips having been found in his possession, the reigning Policy King retained a lawyer of eminent respectability to see what could be done about it. The defendant was a particularly valuable man in the business and one for whom his employer desired to do everything in his power. The lawyer advised the defendant to plead guilty, provided the judge could be induced to let him off with a fine, which the Policy King agreed to pay. Accordingly, the lawyer visited the judge in his chambers and the latter practically promised to inflict only a fine in case the defendant, whom we will call, out of consideration for his memory, "Johnny Dough," should plead guilty. Unfortunately for this very satisfactory arrangement, the judge, now long since deceased, was afflicted with a serious mental trouble which occasionally manifested itself in peculiar losses of memory. When "Johnny Dough," the Policy King's favorite, was arraigned at the bar and, in answer to the clerk's interrogation, stated that he withdrew his plea of "not guilty" and now stood ready to plead "guilty," the judge, to the surprise and consternation of the lawyer, the defendant, and the latter's assembled friends, turned upon him and exclaimed: "Ha! So you plead guilty, do you? Well, I sentence you to the penitentiary for one year, you miserable scoundrel!" Utterly overwhelmed, "Johnny Dough" was led away, while his lawyer and relatives retired to the corridor to express their opinion of the court. About three months later the lawyer, who had heard nothing further concerning the case, happened to be in the office of the district attorney, when the latter looked up with a smile and inquired: "Well, how's your client--Mr. Dough?" "Safe on the Island, I suppose," replied the lawyer. "Not a bit of it," returned the district attorney. "He never went there." "What do you mean?" inquired the lawyer. "I heard him sentenced to a year myself!" "I can't help that," said the district attorney. "The other day a workingman went down to the Island to see his old friend 'Johnny Dough.' There was only one 'Johnny Dough' on the lists, but when he was produced the visitor exclaimed: '_That_ Johnny Dough! That ain't him _at all_, at all!' The visitor departed in disgust. We instituted an investigation and found that the man at the Island was a 'ringer.'" "You don't say!" cried the lawyer. "Yes," continued the district attorney. "But that is not the best part of it. You see, the 'ringer' says he was to get two hundred dollars per month for each month of Dough's sentence which he served. The prison authorities have refused to keep him any longer, and _now he is suing them for damages_, and is trying to get a writ of mandamus to compel them to take him back and let him serve out the rest of the sentence!" Probably the most successful instance on record of making use of a dummy occurred in the early stages of the now famous Morse-Dodge divorce tangle. Dodge had been the first husband of Mrs. Morse, and from him she had secured a divorce. A proceeding to effect the annulment of her second marriage had been begun on the ground that Dodge had never been legally served with the papers in the original divorce case--in other words, to establish the fact that she was still, in spite of her marriage to Morse, the wife of Dodge. Dodge appeared in New York and swore that he had never been served with any papers. A well-known and reputable lawyer, on the other hand, Mr. Sweetser, was prepared to swear that he had served them personally upon Dodge himself. The matter was sent by the court to a referee. At the hour set for the hearing in the referee's office, Messrs. Hummel and Steinhardt arrived early, in company with a third person, and took their seats with their backs to a window on one side of the table, at the head of which sat the referee, and opposite ex-Judge Fursman, attorney for Mrs. Morse. Mr. Sweetser was late. Presently he appeared, entered the office hurriedly, bowed to the referee, apologized for being tardy, greeted Messrs. Steinhardt and Hummel, and then, turning to their companion, exclaimed: "How do you do, Mr. Dodge?" It was not Dodge at all, but an acquaintance of one of Howe & Hummel's office force who had been asked to accommodate them. Nothing had been said, no representations had been made, and Sweetser had voluntarily walked into a trap. The attempt to induce witnesses to identify "dummies" is frequently made by both sides in criminal cases, and under certain circumstances is generally regarded as professional. Of course, in such instances no false suggestions are made, the witness himself being relied upon to "drop the fall." In case he does identify the wrong person, he has, of course, invalidated his entire testimony. Not in one case out of five hundred, however, is any attempt made to substitute a "dummy" for the real defendant, the reason being, presumably, the prejudice innocent people have against going to prison even for a large reward. The question resolves itself, therefore, into how to get the client off when he is actually on trial. First, how can the sympathies of the jury be enlisted at the very start? Weeping wives and wailing infants are a drug on the market. It is a friendless man indeed, even if he be a bachelor, who cannot procure for the purposes of his trial the services of a temporary wife and miscellaneous collection of children. Not that he need swear that they are his! They are merely lined up along a bench well to the front of the court-room--the imagination of the juryman does the rest. A defendant's counsel always endeavors to impress the jury with the idea that all he wants is a fair, open trial--and that he has nothing in the world to conceal. This usually takes the form of a loud announcement that _he_ is willing "to take the first twelve men who enter the box." Inasmuch as the defence needs only to secure the vote of one juryman to procure a disagreement, this offer is a comparatively safe one for the defendant to make, since the prosecutor, who must secure unanimity on the part of the jury (at least in New York State), can afford to take no chances of letting an incompetent or otherwise unfit talesman slip into the box. Caution requires him to _examine_ the jury in every important case, and frequently this ruse on the part of the defendant makes it appear as if the State had less confidence in its case than the defence. This trick was invariably used by the late William F. Howe in all homicide cases where he appeared for the defence. The next step is to slip some juryman into the box who is likely for any one of a thousand reasons to lean towards the defence--as, for example, one who is of the same religion, nationality or even name as the defendant. The writer once tried a case where the defendant was a Hebrew named Bauman, charged with perjury. Mr. Abraham Levy was the counsel for the defendant. Having left an associate to select the jury the writer returned to the court-room to find that his friend had chosen for foreman a Hebrew named _Abraham Levy_. Needless to say, a disagreement of the jury was the almost inevitable result. The same lawyer not many years ago defended a _client_ named Abraham Levy. In like manner he managed to get an Abraham Levy on the jury, and on that occasion succeeded in getting his client off scot-free. No method is too far-fetched to be made use of on the chance of "catching" some stray talesman. In a case defended by Ambrose Hal. Purdy, where the deceased had been wantonly stabbed to death by a blood-thirsty Italian shortly after the assassination of President McKinley, the defence was interposed that a quarrel had arisen between the two men owing to the fact that the deceased had loudly proclaimed anarchistic doctrines and openly gloried in the death of the President, that the defendant had expostulated with him, whereupon the deceased had violently attacked the prisoner, who had killed him in self-defence. The whole thing was so thin as to deceive nobody, but Mr. Purdy, as each talesman took the witness-chair to be examined on the _voir dire_, solemnly asked each one: "Pardon me for asking such a question at this time--it is only my duty to my unfortunate client that impels me to it--but have you _any sympathy with anarchy_ or with _assassination_?" The talesman, of course, inevitably replied in the negative. "Thank you, sir," Purdy would continue. "In _that event_ you are _entirely acceptable_!" Not long ago two shrewd Irish attorneys were engaged in defending a client charged with an atrocious murder. The defendant had the most Hebraic cast of countenance imaginable, and a beard that reached to his waist. Practically the only question which these lawyers put to the different talesmen during the selection of the jury was, "Have you any prejudice against the defendant _on account of his race_?" In due course they succeeded in getting several Hebrews upon the jury who managed in the jury-room to argue the verdict down from murder to manslaughter in the second degree. As the defendant was being taken across the bridge to the Tombs he fell on his knees and offered up a heartfelt prayer such as could only have emanated from the lips of a devout Roman Catholic. Lawyers frequently secure the good-will of jurors (which may last throughout the trial and show itself in the verdict) by some happy remark during the early stages of the case. During the Clancy murder trial each side exhausted its thirty peremptory challenges and also the entire panel of jurors in filling the box. At this stage of the case the foreman became ill and had to be excused. No jurors were left except one who had been excused by mutual consent for some trifling reason, and who out of curiosity had remained in court. He rejoiced in the name of Stone. Both sides then agreed to accept him as foreman provided he was still willing to serve, and this proving to be the case he triumphantly made his way towards the box. As he did so, the defendant's counsel remarked: "The Stone which the builders refused is become the head Stone of the corner." The good-will generated by this meagre jest stood him later in excellent stead. In default of any other defence, some criminal attorneys have been known to seek to excite sympathy for their helpless clients by appearing in court so intoxicated as to be manifestly unable to take care of the defendant's interests, and prisoners have frequently been acquitted simply by virtue of their lawyer's obvious incapacity. The attitude of the jury in such cases seems to be that the defendant has not had a "fair show" and so should be acquitted anyway. Of course, this appeals to the juryman's sympathies and he overlooks the fact that by his action the prosecution is given no "show" at all. Generally speaking, the advice credited to Mr. Lincoln, as being given by him to a young attorney who was about to defend a presumably guilty client, is religiously followed by all criminal practitioners: "Well, my boy, if you've got a good case, stick to the evidence; if you've got a weak one, go for the People's witnesses; but--if you've got no case at all, _hammer the district attorney_!" As a rule, however, criminal lawyers are not in a position to "hammer" the prosecuting officer, but endeavor instead to suggest by innuendo or even open declaration his bias and unfairness. "Be _fair_, Mr. ----!" is the continual cry. "Try to be _fair_!" The defendant, whether he be an ex-convict or thirty-year-old professional thief, is always "this poor boy," and, as he is not compelled by law to testify, and as his failure to do so must not be weighed against him by the jury, he frequently walks out of court a free man, because the jury believe from the lawyer's remarks that he is in fact a mere youthful offender of hitherto good reputation and deserves another chance. By all odds the greatest abuse in criminal trials lies in the open disregard of professional ethics on the part of lawyers who deliberately supply of themselves, in their opening and closing addresses to the jury, what incompetent bits of evidence, true or false, they have not been able to establish by their witnesses. There is no complete cure for this, for even if the judge rebukes the lawyer and directs the jury to disregard what he has said as "not being in the evidence," the damage has been done, the statement still lingering in the jury's mind without any opportunity on the part of the prosecutor to disprove it. There is no antidote for such jury-poison. A shyster lawyer need but to keep his client off the stand and he can saturate the jury's mind with any facts concerning the defendant's respectability and history which his imagination is powerful enough to supply. On such occasions an ex-convict with no relatives may become a "noble fellow, who, rather than have his family name tainted by being connected with a criminal trial, is willing to risk even conviction"--"a veteran of the glorious war which knocked the shackles from the slave"--"the father of nine children"--"a man hounded by the police." The district attorney may shout himself hoarse, the judge may pound his gavel in righteous indignation, the lawyer may apologize because in the zeal with which he feels inspired for his client's cause he perhaps (which only makes matters worse) has _overstepped the mark_--but some juryman may suppose that, after all, the prisoner _is_ a hero or nine times a father. There is one notorious attorney who poses as a philanthropist and who invariably promises the jury that if they acquit his client he will personally give him employment. If he has kept half of his promises he must by this time have several hundred clerks, gardeners, coachmen, choremen and valets. In like manner attorneys of this feather will deliberately state to the jury that _if_ the defendant had taken the stand he _would have_ testified thus and so; or that if certain witnesses who have not appeared (and who perhaps in reality do not exist at all) _had_ testified they would have established various facts. Such lawyers should be locked up or disbarred; courts are powerless to negative entirely their dishonesty in individual cases. Clever counsel, of course, habitually make use of all sorts of appeals to sympathy and prejudice. In one case in New York in which James W. Osborne appeared as prosecutor the defendant wore a G.A.R. button. His lawyer managed to get a veteran on the jury. Mr. Osborne is a native of North Carolina. The defendant's counsel, to use his own words, "worked the war for all it was worth," and the defendant lived, bled and died for his country over and over again. In summing up the case, the attorney addressed himself particularly to the veteran on the back row, and, after referring to numerous imaginary engagements, exclaimed: "Why, gentlemen, my client was pouring out his life blood upon the field of battle when the ancestors of Mr. Osborne were raising their hands against the flag!" For once Mr. Osborne had no adequate words to reply. By far the most effective and dangerous "trick" employed by guilty defendants is the deliberate shouldering of the entire blame by one of two persons who are indicted together for a single offence. A common example of this is where two men are caught at the same time bearing away between them the spoil of their crime and are jointly indicted for "criminally receiving stolen property." Both, probably, are "side partners," equally guilty, and have burglarized some house or store in each other's company. They may be old pals and often have served time together. They agree to demand separate trials, and that whoever is convicted first shall assume the entire responsibility. Accordingly, A. is tried and, in spite of his asseveration that he is innocent and that the "stuff" was given him by a strange man, who paid him a dollar to transport it to a certain place, is properly convicted.[45] The bargain holds. B.'s case is moved for trial and he claims never to have seen A. in his life before the night in question, and that he volunteered to help the latter carry a bundle which seemed to be too heavy for him. He calls A., who testifies that this is so--that B., whom he did not know from Adam, tendered his services and that he availed himself of the offer. The jury are usually prone to acquit, as the weight of evidence is clearly with the defendant. Many changes are rung upon this device. There is said to have been a case in which the defendant was convicted of murder in the first degree and sentenced to be executed. It was one of circumstantial evidence and the verdict was the result of hours of deliberation on the part of the jury. The prisoner had stoutly denied knowing anything of the homicide. Shortly before the date set for the execution, another man turned up who admitted that he had committed the crime and made the fullest sort of a confession. A new trial was thereupon granted by the Appellate Court, and the convict, on the application of the prosecuting attorney, was discharged and quickly made himself scarce. It then developed that apart from the prisoner's own confession there was practically nothing to connect him with the crime. Under a statute making such evidence obligatory in order to render a confession sufficient for a conviction, the prisoner had to be discharged. In the case of Mabel Parker, a young woman of twenty, charged with the forgery of a large number of checks, many of them for substantial amounts, her husband made an almost successful attempt to procure her acquittal by means of a new variation of the old game. Mrs. Parker, after her husband had been arrested for _passing_ one of the bogus checks, had been duped by a detective into believing that the latter was a fellow criminal who was interested in securing Parker's release. In due course she took this supposed friend into her confidence, made a complete confession, and illustrated her skill by impromptu copies of her forgeries from memory upon a sheet of pad paper. This the detective secured and then arrested her. She was indicted for forging the name _Alice Kauser_ to a check upon the Lincoln National Bank. On her trial she denied having done so, and claimed that the detective had found the sheet containing her supposed handwriting in her husband's desk, and that she had written none of the alleged copies upon it. The door of the court-room then opened, and James Parker was led to the bar and _pleaded guilty_ to the forgery of the check in question. (For the benefit of the layman it should be explained that as a rule indictments for forgery also contain a count for "uttering.") He then took the stand, admitted that he had not only uttered but had also written the check, and swore that it was _his handwriting_ which appeared on the pad. The prosecutor was nonplussed. If he should ask the witness to prove his capacity to forge such a check from memory on the witness-stand, the latter, as he had had ample time to practise the signature while in prison, would probably succeed in doing so. If, on the other hand, he should not ask him to write the name, the defendant's counsel would argue to the jury that he was _afraid_ to do so. The district attorney therefore took the bull by the horns and challenged Parker to make from memory a copy of the signature, and, much as he had suspected, the witness produced a very good one. An acquittal seemed certain, and the prosecutor was at his wit's end to devise a means to meet this practical demonstration that the husband was in fact the forger. At last it was suggested to him that it would be comparatively easy to memorize such a signature, and acting on this hint he found that after half an hour's practice he was able to make almost as good a forgery as Parker. When therefore it came time for him to address the jury he pointed out the fact that Parker's performance on the witness-stand really established nothing at all--that any one could forge such a signature from memory after but a few minutes' practice. "To prove to you how easily this can be done," said he, "I will volunteer to write a better Kauser signature than Parker did." He thereupon seized a pen and began to demonstrate his ability to do so. Mrs. Parker, seeing the force of this ocular demonstration, grasped her counsel's arm and cried out: "For God's sake, don't let him do it!" The lawyer objected, the objection was sustained, but the case was saved. Why, the jury argued, should the lawyer object unless the making of such a forgery were in fact an easy matter? In desperate cases, desperate men will take desperate chances. The traditional instance where the lawyer, defending a client charged with causing the death of another by administering poisoned cake, met the evidence of the prosecution's experts with the remark: "_This is my answer to their testimony!_" and calmly ate the balance of the cake, is too familiar to warrant detailed repetition. The jury retired to the jury-room and the lawyer to his office, where a stomach pump quickly put him out of danger. The jury is supposed to have acquitted. Such are some of the tricks of the legal trade as practised in its criminal branch. Most of them are unsuccessful and serve only to relieve the gray monotony of the courts. When they achieve their object they add to the interest of the profession and teach the prosecutor a lesson by which, perhaps, he may profit in the future. FOOTNOTES: [Footnote 45: The defence that the accused innocently received the stolen property into his possession was a familiar one even in 1697, as appears by the following record taken from the Minutes of the Sessions. It would seem that it was even then received with some incredulity. CITY & COUNTY OF NEW YORK: ss: Att a Meeting of the Justices of the Peace for the said City & County att the City Hall of the said City on Thursday the 10th day of June Anno Dom 1697. PRESENT. William Morrott } Esquires James Graham } quorum Jacobus Cortlandt } Esquires Grandt Schuylor } Justices Leonard Lowie } of the Peace Jacobus Cortlandt, Esq., one of his Majestys Justices of the peace for ye said City and County Informed the Kings Justices that a peace of Linnen Ticking was taken out of his Shop this Morning. That he was informed a Negro Slave Named Joe was seen to take the same whereupon the said Jacobus Van Cortlandt Pursued the said Joe and apprehended him and found the said piece of ticking in his custody and had the said Negro Joe penned in the cage, upon which the said Negro man being brought before the said Justices said he did not take the said ticking out of the Shop window but that a Boy gave itt to him, but upon Examination of Sundry other Evidence itt Manifestly Appeareth to the said Justices that the said Negro man Named Joe, did steal the said piece of linnen ticking out of the Shop Window of the said Jacobus Van Cortlandt and thereupon doe order the punishment of the said Negro as follows vigt. That the said Negro man Slave Named Joe shall be forthwith by the Common whipper of the City or some of the Sheriffs officers att the Cage be stripped Naked from the Middle upwards and then and there shall be tyed to the tayle of a Cart and being soe stripped and tyed shall be Drove Round the City and Receive upon his naked body att the Corner of each Street nine lashes until he return to the place from whence he sett out and that he afterwards Stand Committed to the Sheriffs custody till he pay his fees.] CHAPTER XVII WHAT FOSTERS CRIME To lack of regard for law is mainly due the existence of crime, for a perfect respect for law would involve entire obedience to it. Yet crime continues and from time to time breaks forth to such an extent as to give ground for a popular impression that it is increasing out of proportion to our growth as a nation. Now, while it may be fairly questioned whether there is any actual increase of crime in the United States, and while, on the contrary, observation would seem to show an actual decrease, not only in crimes of violence, but in all major crimes, there nevertheless exists to-day a widespread contempt for the criminal law which, if it has not already stimulated a general increase of criminal activity, is likely to do so in the future. This contempt for the law is founded not only upon actual conditions, but also upon belief in conditions erroneously supposed to exist, which is fostered by current literature and by the sensational press. Thus, as has already been pointed out, while it is popularly believed that women are almost never convicted of crime, and particularly of homicide, the fact is, at least in New York County, that a much greater proportion of women charged with murder are convicted than of men charged with the same offence. To read the newspapers one would suppose that the mere fact that the defendant was a female instantly paralyzed the minds of the jury and reduced them to a state of imbecility. The inevitable result of this must be to encourage lawlessness among the lower orders of women and to lead them to look upon arrest as a mere formality without ultimate significance. The writer recalls trying for murder a negress who had shot her lover not long after the discharge of a notorious female defendant in a recent spectacular trial in New York. When asked why she had killed him she replied: "Oh, Nan Patterson did it and got off." This is not offered as a reflection upon the failure of the jury to reach a verdict in the Patterson case, but as an illuminating illustration of the concrete and immediate effect of all actual or supposed failures of justice. A belief that the course of criminal justice is slow and uncertain, that the chances are all in favor of the defendant, and that he has but to resort to technicalities to secure not only indefinite delay but generally ultimate freedom, breeds an indifference amounting almost to arrogance among law-breakers, powerful and otherwise, and a painful yet hopeless conviction among honest men that nothing can prevent the wicked from flourishing. Honesty seems no longer even a good policy, and the young business man resorts to sharp practices to get ahead of his unscrupulous competitor. In some localities the uncertainty and delay attendant upon the execution of the law is the alleged, and maybe the actual, cause of the community crime of lynching. Even where the administration of justice is seen at its best many people who have been wronged believe that there is so little likelihood that the offender will after all be punished that the cheapest and easiest course is to let the matter drop. All this gives aid and comfort to the powers of darkness. The widespread impression as to the uncertainty of the law is not entirely a misapprehension. "We have long since passed the period when it is possible to punish an innocent man. We are now struggling with the problem whether it is any longer possible to punish the guilty." It is a melancholy fact that at the present time "penal statutes and procedure tend more to defeat and retard the ends of justice than to protect the rights of the accused." The subject of criminal-law reform is too extensive to be discussed here even superficially, but historically the explanation of existing conditions is simple enough. The present overgrown state of the criminal law is the direct result of our exaggerated regard for personal liberty, coupled with a wholesale adoption of the technicalities of English law invented when only such technicalities could stand between the minor offender and the barbarous punishments of a bygone age. We forget that the community is composed of individuals, and we tend to disregard its interests for those of any particular individual who happens to be a prisoner at the bar. We revolted from England and incidentally from her system of administering the criminal law, by which the defendant could have no voice at his own trial, where practically every crime was punishable with death, and where only the Crown could produce and examine witnesses. Every one will have to agree that the English system was very harsh and very unfair indeed. To-day it is better than ours, simply because its errors have been systematically and wisely corrected, without diminution in the national respect for law. When we devised our own system we adopted those humane expedients for evading the law which were only justified by the existing penalties attached to convictions for crime,--and then discarded the penalties. We were through with tyrants once and for all. The Crown had always been opposed to the defendant and the Crown was a tyrant. We naturally turned with sympathy towards the prisoner. We gave him the right of appeal on all matters of law through all the courts of our States, and even into the courts of the United States, while we allowed the People no right of appeal at all. If the prisoner was convicted he could go on and test the case all along the line,--if he was acquitted the People had to rest satisfied. We stopped the mouth of the judge and made it illegal for him to "sum up" the case or discuss the facts to any extent. We clipped the wings of the prosecutor and allowed him less latitude of expression than an English judge. Then we gazed on the work of our intellects and said it was good. If an ignorant jury acquitted a murderer under the eyes of a gagged and helpless judge, we said that it was all right and that it was better that ninety-nine guilty men should escape than that one innocent man should be convicted. Yes,--better for whom? If another murderer, about whose guilt the highest court in one of the States said there was no possible doubt, secured three new trials and was finally acquitted on the fourth, it merely demonstrated how perfectly we safeguarded the rights of the individual. The result is that we have unnecessarily fettered ourselves, have furnished a multitude of technical avenues of escape to wrong-doers, and have created a popular contempt for courts of justice, which shows itself in the sentimental and careless verdicts of juries, in a lack of public spirit, and in an indisposition to prosecute wrong-doers. In addition, the impression sought to be conveyed by the yellow press that our judiciary is corrupt and that money can buy anything--even justice--leads the jury in many cases to feel that their presence is merely a formal concession to an archaic procedure and that their oaths have no real significance. The community, the "People," have a sufficiently hard task to secure justice at any criminal trial. On the one hand is the abstract proposition that the law has been violated, on the other sits a human being, ofttimes contrite, always an object of pity. He is presumed innocent, he is to be given the benefit of every reasonable doubt. He has the right to make his own powerful appeal to the jury and to have the services of the best lawyer he can secure to sway their emotions and their sympathies. If the prosecutor resorts to eloquence he is stigmatized as "over-zealous" and as a "persecutor." If a plainly guilty defendant be acquitted, not the trampled ideal of justice, but the vision of a liberated prisoner rejoicing in his freedom hovers in the talesman's dreams. So far so good; we can afford to stand by a system which in the long run has served us fairly well. But an occasional evil, an evil which when it occurs is productive of great harm and serves to give color to the popular opinion of criminal law, begins only when the lawyers have had their opportunity for elocution. At the conclusion of the charge the defendant's attorney proceeds to put the judge through what is familiarly known as "a course of sprouts." He makes twenty or thirty "requests to charge the jury" on the most abstract propositions of law which his fertile mind can devise,--relevant or irrelevant, applicable or inapplicable to the facts,--and the judge is compelled to decide from the bench, without opportunity for reflection, questions which the attorney has labored upon, perchance, for weeks. If he guesses wrong, the lawyer "excepts" and the case may be reversed on appeal. This is not a test of the defendant's guilt or innocence, but a test of the abstract learning and quickness of the presiding judge. It is generally believed that appellate courts are prone to reverse criminal cases on purely technical grounds. Whether this belief be well founded or ill, its wide acceptance as fact is fertile in bringing the law into disrepute.[46] Justice to be effective must be not only sure but swift. An "iron hand" cannot always compensate for a "leaden heel." It is probably true that in some of the States such a tendency exists and may result in making the administration of justice a laughing stock, but it is far from being so in States of the character of New York and Massachusetts. The Appellate Division, First Department, and Court of Appeals in New York are distinctly opposed to reversing criminal cases on technical grounds and are prone to disregard trivial error where the guilt of the defendant is clear. The writer can recall no recent criminal case where the district attorney's office has felt aggrieved at the action of the higher courts, and on the contrary believes that their action is generally based on broad principles of public policy and common-sense. During the year 1905 the district attorney of New York County defended forty-seven appeals from convictions in criminal cases in the Appellate Division. Of these convictions only _three_ were reversed. He defended eighteen in the Court of Appeals, of which only _two_ were reversed. One of the writer's associates computed that he had secured, during a four years' term of office, twenty-nine convictions in which appeals had been taken. Of these but two were reversed, one of them immediately resulting in the defendant's re-conviction for the same crime. The other is still pending and the defendant awaiting his trial. Certainly there is little in the actual figures to give color to the impression that the criminal profits by mere technicalities on appeal,--at least in New York State. In nine cases out of ten the reversal of a conviction in a criminal case is due to the carelessness or inefficiency of the prosecuting officer or trial judge and not to any inadequacy in our methods of procedure. Yet the tenth case, the case where the criminal does beat the law by a technicality, does more harm than can easily be estimated. That is the one case everybody knows about,--the one the papers descant upon, the one that cheers the heart of the grafter and every criminal who can afford to pay a lawyer. Yet the evil influence of the reversal of a conviction on appeal, however much it is to be deprecated, is as nothing compared with a deliberate acquittal of a guilty defendant by a reckless, sentimental, or lawless jury. Few can appreciate as does a prosecutor the actual, practical and immediate effect of such a spectacle upon those who witness it. Two men were seen to enter an empty dwelling-house in the dead of night. The alarm was given by a watchman near by, and a young police officer, who had been but seven months on the force, bravely entered the black and deserted building, searched it from roof to cellar, and found the marauders locked in one of the rooms. He called upon them to open, received no reply, yet without hesitation and without knowing what the consequences to himself might be, smashed in the door and apprehended the two men. One was found with a large bundle of skeleton keys in his pocket and several candles, while a partially consumed candle lay upon the floor. In the police court they _pleaded guilty_ to a charge of burglary, and were promptly indicted by the grand jury. At the trial they claimed to have gone into the house _to sleep_, said they had found the bunch of keys on the stairs, _denied_ having the candles at all or that they were in a room on the top story, and asserted that they were in the entrance hall when arrested. The story told by the defendants was so utterly ridiculous that one of the two could not control a grin while giving his version of it on the witness-stand. The writer, who prosecuted the case, regarded the trial as a mere formality and hardly felt that it was necessary to sum up the evidence at all. Imagine his surprise when an intelligent-looking jury _acquitted_ both the defendants after practically no deliberation. Both had offered to plead guilty to a slightly lower degree of crime before the case was moved for trial. These two defendants, who were neither insane nor degenerates, consorted with others in Bowery hotels and saloons,--incubators of crime. What effect could such a performance have upon them and their friends save to inculcate a belief that they were licensed to commit as many burglaries as they chose? They had a practical demonstration that the law was "no good" and the system a failure. If they could beat a case in which they had already pleaded _guilty_, what could they not do where the evidence was less obvious? They were henceforth immune. Who shall say how many embryonic law-breakers took courage at the story and started upon an experimental attempt at crime? The news of such an acquittal must instantly have been carried to the Tombs, where every other guilty prisoner took heart and prepared anew his defence. Those about to plead guilty and throw themselves upon the mercy of the court, abandoned their honest purpose and devised some perjury instead. Criminals almost persuaded that honesty was the best policy changed their minds. The barometer of crime swung its needle from "stormy" to "fair." But, apart from the law-breakers, consider the effect of such a miscarriage of justice upon a young, honest and zealous officer. First, all his good work, his bravery, his conscientious effort at safeguarding the sleeping public had been disregarded, tossed aside with a sneer, and had gone for naught. The jury had stamped his story as a lie and stigmatized him, by their action, as a perjurer. They had chosen two professional criminals as better men. His whole conduct of the case instead of being commended as meritorious had resulted in a solemn public declaration that he was not worthy of credence and that he had attempted wilfully to railroad to State's prison two innocent men. In other words, that he ought to be there himself. What was the use of trying to do good work any longer? He might just as well loiter in an area on a barrel and smoke a furtive cigar when he ought to be "on post." Perhaps he might better "stand in" with those who would inevitably be preferred to him by a jury of their peers. What must have been the effect on the court officers, the witnesses, the defendants out on bail, the complainants, the spectators? That the whole business was nonsense and rot! That the jury system was ridiculous. That the jurymen were either crooks or fools. That the only people who were not insulted and sneered at were the law-breakers themselves. That if two such rogues were to be set free all the other jailbirds might as well be let go. That an honest man could whistle for his justice and might better straightway put on his hat and go home. That the only way to punish a criminal was to punish him yourself--kill him if you got the chance or get the crowd to lynch him. That if a thief stole from you the shrewdest thing to do was to induce him as a set-off to give you the proceeds of his next thieving. That it was humiliating to live in a town where a self-confessed rascal could snap his fingers at the law and go unwhipped of justice. The jury's action must have been due either to a wilful disregard of their oath or an entire misconception of it. Assuming that the jury deliberately declined to obey the law, the whole twelve elected to become, and thereby did become, law-breakers. They disqualified themselves forever as talesmen. No prosecutor in his senses would move a case before a jury which numbered any one of them. They had arraigned themselves upon the side, and under the standard, of crime. They became accessories after the fact. If on the other hand they misconceived the purpose for which they were there the performance was a shocking example of what is possible under present conditions. Just as there are three general classes of wrongs, so there are three general and varyingly effective forms of restraint against their perpetration. First there is the moral control exerted by what is ordinarily called conscience, secondly there is the restraint which arises out of the apprehension that the commission of a tort will be followed by a judgment for damages in a civil court, and lastly there is the restraint imposed by the criminal law. All these play their part, separately or in conjunction. For some men conscience is a sufficient barrier to crime or to those acts which, while equally reprehensible, are not technically criminal; for others the possibility of pecuniary loss is enough to keep them in the straight and narrow way; but for a large proportion of the community the fear of criminal prosecution, with implied disgrace and ignominy, forfeiture of citizenship, and confinement in a common jail is about the only conclusive reason for doing unto others as they would the others should do unto them. Were the criminal law done away with in our present state of civilization, religion, ethics and civil procedure would be absolutely inefficacious to prevent anarchy. It is as imperative to the ordinary citizen to know that if he steals he will be locked up as it is for the child to know that if he puts his hand into the fire it will be burned. The acquittal of every thief breeds another, and the unpunished murder is an incentive for a dozen similar homicides. Crimes are either deliberate or the result of accident or impulse. The last class may rise to a high degree of enormity,--such as manslaughter, but these crimes are rarely possible of restraint. The perpetrator does not stop to consider, even if he be sober enough to think at all, whether his act be moral, whether it will entail any civil liability, or what will be its consequences, if it be a crime. So far as such acts are concerned those who commit them are hardly criminals in the ordinary sense, and no influence in the world is able to prevent them. The question is how far these different kinds of restraint operate upon the community as a whole in the prevention of _deliberate_ crime. Clearly the fear of pecuniary loss through actions brought to judgment in the civil courts is practically _nil_. Most persons who set out to commit crime have no bank account, the absence of one being generally what leads them into a criminal career. The writer has no intention of attempting to discuss or estimate the efficacy of religion or ethics as restraining influences. A certain limited proportion of the community would not commit crime under any circumstances. It is enough for them that the act is forbidden by the State even if it be not really wrong from their own personal point of view. Side by side with these very good people are a very large number who wear just as fashionable clothing, have the same friends, attend the same churches, but who would commit almost any crime so long as they were sure of not being caught. If we had no criminal law we should soon discover who were the hypocrites. But for an overwhelming majority of the community something more practical than either religion, ethics, or philosophy is necessary to keep them in order. They must be convinced that the transgressor will surely be punished,--not some time, not next year or the year after, but _now_. Not, moreover, that his way will be merely hard, but that he will be put in stripes and made to break stones. Hence the necessity for a vigorous and adequate criminal law and procedure which shall command the respect and loyalty of the community, administered by a fearless judiciary who will hold jurors to a rigid and conscientious obedience to their oath. There is nothing sacred about an archaic criminal procedure which in some respects is less devised for the protection of the community than for the exculpation of the guilty. The portals of liberty would not fall down or the framers of the constitution turn in their graves if the peremptory challenges allowed to both sides in the selection of a jury were reduced to a reasonable number, or if persons found guilty of crime after due process of law were compelled to stay in jail until their appeals were decided, instead of walking the streets free as air under a certificate of "reasonable doubt" issued by some judge who personally knew nothing of the actual trial of the case. As things stand to-day, a thief caught in the very act of picking a pocket in the night-time may challenge arbitrarily the twenty most intelligent talesmen called to sit as jurors in his case. Does such a practice make for justice? It is even possible that the sacred bird of liberty would not scream if eleven jurors, instead of twelve, were permitted to convict a defendant or set him free, while the question of how far the right of appeal in criminal cases might properly be limited or, in default of such limitation, how far under certain conditions it might be correspondingly extended to the community, is by no means purely academic.[47] It is also conceivable that some means might be found to do away with the interminable technicalities which can now be interposed on behalf of the accused to prevent trials or the infliction of sentence after conviction. Yet these considerations are of slight moment in contrast to that most crying of all present abuses,--the domination of the court-room by the press.[48] It is no fiction to say that in many cases the actual trial is conducted in the columns of yellow journals and the defendant acquitted or convicted purely in accordance with an "editorial policy." Judges, jurors, and attorneys are caricatured and flouted. There is no evidence, however incompetent, improper, or prejudicial to either side, excluded by the judge in a court of criminal justice, that is not deliberately thrust under the noses of the jury in flaring letters of red or purple the moment they leave the court-room. The judge may charge one way in accordance with the law of the land, while the editor charges the same jury in double-leaded paragraphs with what "unwritten" law may best suit the owner of his conscience and his pen. "Contempt of court" in its original significance is something known to-day only to the reader of text books.[49] Each State has its own particular problem to face, but ultimately the question is a national one. Lack of respect for law is characteristic of the American people as a whole. Until we acquire a vastly increased sense of civic duty we should not complain that crime is increasing or the law ineffective. It would be a most excellent thing for an association of our leading citizens to interest itself in criminal-law reform and demand and secure the passage of new and effective legislation, but it would accomplish little if its individual members continued to evade jury service and left their most important duty to those least qualified by education or experience to perform it.[50] It would serve some of this class of reformers right, if one day, when after a life-time of evasion, they perchance came to be tried by a jury of their peers, they should find that among their twelve judges there was not one who could read or write the English language with accuracy and that all were ready to convict anybody because he lived in a brown-stone front. Merchants, who in return for a larger possible restitution habitually compound felonies by tacitly agreeing not to prosecute those who have defrauded them, have no right to complain because juries acquit the offenders whom they finally decide it to be worth their while to pursue. The voter who has not the courage to insist that hypocritical laws should be wiped from the statute books should express no surprise when juries refuse to convict those who violate them. The man who perjures himself to escape his taxes has no right to expect that his fellow citizens are going to place a higher value upon an oath than he. FOOTNOTES: [Footnote 46: Cf. "Criminal Law Reform," G.W. Alger, "The Outlook," June, 1907. Also article having same title in "Moral Overstrain," by same author. See also, by Hon. C.F. Amidon, "The Quest for Error and the doing of Justice," 40 American Law Rev. 681, and article on same subject in "The Outlook" for June, 1906.] [Footnote 47: "Limitation of the Right of Appeal in Criminal Cases," by Nathan A. Smythe, 17 Harvard Law Rev. 317 (1905).] [Footnote 48: Cf. "Sensational Journalism and the Law," in "Moral Overstrain," by G.W. Alger.] [Footnote 49: By the New York Penal Code § 143, an editor is only guilty of contempt of court (a misdemeanor) if he publishes "a false or grossly inaccurate report" of its proceedings. The most insidious, dangerous, offensive and prejudicial matter spread broadcast by the daily press does not relate to actual trials at all, but to matters entirely outside the record, such as what certain witnesses of either side could establish were they available, the "real" past and character of the defendant, etc. The New York Courts, under the present statute, are powerless to prevent this abuse. In Massachusetts half a dozen of our principal editors and "special writers" would have been locked up long ago to the betterment of the community and to the increase of respect for our courts of justice.] [Footnote 50: "The Citizen and the Jury," in "Moral Overstrain," by G.W. Alger.] CHAPTER XVIII INSANITY AND THE LAW Harry Kendall Thaw shot and killed Stanford White on the 25th day of June, 1905. Although most of the Coroner's jury which first sat upon the case considered him irrational, he was committed to the Tombs and, having been indicted for murder, remained there over six months pending his trial. During that time it was a matter of common knowledge that his defence was to be that he was insane at the time of the shooting, but as under the New York law it is not necessary specifically to enter a plea of insanity to the indictment in order to take advantage of that defence (which may be proven under the general plea of "not guilty"), there was nothing officially on record to indicate this purpose. Neither was it possible for the District Attorney to secure any evidence of Thaw's mental condition, since he positively refused either to talk to the prosecutor's medical representatives or to allow himself to be examined by them. Mr. Jerome therefore was compelled to enter upon an elaborate and expensive preparation of the case, not only upon its merits, but upon the possible question of the criminal irresponsibility of the defendant. The case was moved in January, 1906, and the defence thereupon proceeded to introduce a limited amount of testimony tending to show that Thaw was insane when he did the shooting. While much of this evidence commended itself but little to either the prosecutor or the jury, it was sufficient to raise grave doubt as to whether the accused was a fit subject for trial. The District Attorney's experts united in the opinion that, while he knew that he was doing wrong when he shot White, he was, nevertheless, the victim of a hopeless progressive form of insanity called _dementia præcox_. In the midst of the trial, therefore, Mr. Jerome moved for a commission to examine into the question of how far Thaw was capable of understanding the nature of the proceedings against him and consulting with counsel, and frankly expressed his personal opinion in open court that Thaw was no more a proper subject for trial than a baby. A commission was appointed which reported the prisoner sane enough to be tried, and the case then proceeded at great length with the surprising result that, in spite of the District Attorney's earlier declaration that he believed Thaw to be insane, the jury disagreed as to his criminal responsibility, a substantial number voting for conviction. Of course, logically, they would have been obliged either to acquit entirely on the ground of insanity or convict of murder in the first degree, but several voted for murder in the second degree. A year now elapsed, during which equally elaborate preparations were made for a second trial. The State had already spent some $25,000, and yet its experts had never had the slightest opportunity to examine or interrogate the defendant, for the latter had not taken the stand at the first trial. The District Attorney still remained on record as having declared Thaw to be insane, and his own experts were committed to the same proposition, yet his official duty compelled him to prosecute the defendant a second time. The first prosecution had occupied months and delayed the trial of hundreds of other prisoners, and the next bid fair to do the same. But at this second trial the defence introduced enough testimony within two days to satisfy the public at large of the unbalanced mental condition of the defendant from boyhood. After a comparatively short period of deliberation the jury acquitted the prisoner "on the ground of insanity," which may have meant either one of two things: (_a_) that they had a reasonable doubt in their own minds that Thaw knew that he was doing wrong when he committed the murder--something hard for the layman to believe, or (_b_) that, realizing that he was undoubtedly the victim of mental disease, they refused to follow the strict legal test. Nearly two years had elapsed since the homicide; over a hundred thousand dollars had been spent upon the case; every corner of the community had been deluged with detailed accounts of unspeakable filth and depravity; the moral tone of society had been depressed; and the only element which had profited by this whole lamentable and unnecessary proceeding had been the sensational press. Yet the sole reason for it all was that the law of the land in respect to insane persons accused of crime was hopelessly out of date. The question of how far persons who are victims of diseased mind shall be held criminally responsible for their acts has vexed judges, jurors, doctors, and lawyers for the last hundred years. During that time, in spite of the fact that the law has lagged far behind science in the march of progress, we have blundered along expecting our juries to reach substantial justice by dealing with each individual accused as most appeals to their enlightened common sense. And the fact that they have obeyed their common sense rather than the law is the only reason why our present antiquated and unsatisfactory test of who shall be and who shall not be held "responsible" in the eye of the law remains untouched upon the statute-books. Because its inadequacy is so apparent, and because no experienced person seriously expects juries to apply it consistently, it fairly deserves first place in any discussion of present problems. Thanks to human sympathy, the law governing insanity has had comparatively few victims, but the fact remains that more than one irresponsible insane man has swung miserably from the scaffold. But "hard cases" do more than "make bad law," they make lawlessness. A statute systematically violated is worse than no statute at all, and exactly in so far as we secure a sort of justice by evading the law as it stands, we make a laughing-stock of our procedure. The law is, simply, that any person is to be held criminally responsible for a deed unless he was at the time laboring under such a defect of reason as not to know the nature and quality of his act and that it was wrong. This doctrine first took concrete form in 1843, when, after a person named McNaughten, who had shot and killed a certain Mr. Drummond under an insane delusion that the latter was Sir Robert Peel, had been acquitted, there was such popular uneasiness over the question of what constituted criminal responsibility that the House of Lords submitted four questions to the fifteen judges of England asking for an opinion on the law governing responsibility for offences committed by persons afflicted with _certain forms_ of insanity. It is unnecessary to set forth at length these questions, but it is enough to say that the judges formulated the fore-going rule as containing the issue which should be submitted to the jury in such cases.[51] Now, with that commendable reverence for judicial utterance which is so characteristic of the English nation, and is so conspicuously absent in our own country, it was assumed until recently that this solemn pronunciamento was the last word on the question of criminal responsibility and settled the matter once and forever. Barristers and legislators did not trouble themselves particularly over the fact that in 1843 the study of mental disease was in its infancy, and judges, including those of England, probably knew even less about the subject than they do now. In 1843 it was supposed that insanity, save of the sort that was obviously maniacal, necessitated "delusions," and unless a man had these delusions no one regarded him as insane. In the words of a certain well-known judge: "The true criterion, the true test of the absence or presence of insanity, I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely, delusion.... In short, I look on delusion ... and insanity to be almost, if not altogether, convertible terms."[52] This in a certain broad sense, probably not intended by the judge who made the statement, is nearly true, but, unfortunately, is not entirely so. The dense ignorance surrounding mental disease and the barbarous treatment of the insane within a century are facts familiar to everybody. Lunatics were supposed to be afflicted with demons or devils which took possession of them as retribution for their sins, and in addition to the hopelessly or maniacally insane, medical science recognized only a so-called "partial" or delusionary insanity. To-day it would be regarded about as comprehensive to relate all mental diseases to the old-fashioned "delusion" as to regard as insane only those who frothed at the mouth. But the particular individual out of whose case in 1843 arose the rule that is in 1908 applied to all defendants indiscriminately was the victim of a clearly defined insane delusion, and the four questions answered by the judges of England relate only to persons who are "_afflicted with insane delusions in respect to one or more particular subjects or persons_." Nothing is said about insane persons _without_ delusions, or about persons with _general_ delusions, and the judges limit their answers even further by making them apply "to those persons who labor under such partial delusion only _and are not in other respects insane_"--a medical impossibility. Modern authorities agree that a man cannot have insane delusions and not be in other respects insane, for it is mental derangement which is the cause of the delusion. In the first place, therefore, a fundamental conception of the judges in answering the questions was probably fallacious, and in the second, although the test they offered was distinctly limited to persons "_afflicted with insane delusions_," it has ever since been applied to all insane persons irrespective of their symptoms. Finally, whether the judges knew anything about insanity or not, and whether in their answers they weighed their words very carefully or not, the test _as they laid it down_ is by no means clear from a medical or even legal point of view. Was the accused laboring under such a defect of reason as not to _know_ the nature and quality of the act he was doing, or not to _know_ that it was wrong? What did these judges mean by _know_? What does the reader mean by _know_? What does the ordinary juryman mean by it? We are left in doubt as to whether the word should be given, as Justice Stephens contended it should be, a very broad and liberal interpretation such as "able to judge calmly and reasonably of the moral or legal character of a proposed action,"[53] or a limited and qualified one. There are all grades and degrees of "knowledge," and it is more than probable that there is a state of mind which I have heard an astute expert call upon the witness stand "an insane knowledge," and equally obvious that there may be "imperfect" or "incomplete knowledge," where the victim sees "through a glass darkly." Certainly it seems far from fair to interpret the test of responsibility to cover a condition where the accused may have had a hazy or dream-like realization that his act was technically contrary to the law, and even more dangerous to make it exclude one who was simply unable to "judge calmly and reasonably" of his proposed action, a doctrine which could almost be invoked by any one who committed homicide in a state of anger. Ordinarily the word is not defined at all and the befuddled juryman is left to his own devices in determining what significance he shall attach not only to this word but to the test as a whole. An equally ambiguous term is the word "wrong." The judges made no attempt to define it in 1843, and it has been variously interpreted ever since. Now it may mean "contrary to the dictates of conscience" _or_, as it is usually construed, "contrary to the law of the land"--and exactly _what_ it means may make a great difference to the accused on trial. If the defendant thinks that God has directed him to kill a wicked man, he may know that such an act will not only be contrary to law, but also in opposition to the moral sense of the community as a whole, and yet he may believe that it is his conscientious duty to take life. In the case of Hadfield, who deliberately fired at George III in order to be hung, the defendant believed himself to be the Lord Jesus Christ, and that only by so doing could the world be saved. Applying the legal test and translating the word "wrong" as contrary to the common morality of the community wherein he resided or contrary to law, Hadfield ought to have achieved his object and been given death upon the scaffold instead of being clapped, as he was, into a lunatic asylum. On the other hand, if the word "wrong" is judicially interpreted to mean "contrary to the dictates of conscience," it would seem to be given an elasticity which would invite inevitable confusion as well as abuse. Moreover, the test in question takes no cognizance of persons who have no power of control. The law of New York and most of the states does not recognize "irresistible impulses," but it should admit the medical fact that there are persons who, through no fault of their own, are born practically without any inhibitory capacity whatever, and that there are others whose control has been so weakened, through accident or disease, as to render them morally irresponsible,--the so-called psychopathic inferiors. Most of us are only too familiar with the state of a person just falling under the influence of an anesthetic, when all the senses seem supernaturally acute, the reasoning powers are active and unimpaired, and the patient is convinced that he can do as he wills, whereas, in reality, he says and does things which later on seem impossible in their absurdity. Such a condition is equally possible to the victim of mental disease, where the knowledge of right and wrong has no real relevancy. The test of irresponsibility as defined by law is hopelessly inadequate, judged by present medical knowledge. There is no longer any pretence that a perception of the nature and quality of an act or that it is wrong or right is conclusive of the actual insanity of a particular accused. In a recent murder case a distinguished alienist, testifying for the prosecution, admitted that over seventy per cent. of the patients under his treatment, all of whom he regarded as insane and irresponsible, knew what they were doing and could distinguish right from wrong. Countless attempts have been made to reconcile this obvious anachronism with justice and modern knowledge, but always without success, and courts have wriggled hard in their efforts to make the test adequate to the particular cases which they have been trying, but only with the result of hopelessly confounding the decisions. But, however it is construed, the test as laid down in 1843 is insufficient in 1908. Medical science has marched on with giant strides, while the law, so far as this subject is concerned, has never progressed at all. It is no longer possible to determine mental responsibility by any such artificial rule as that given by the judges to the Lords in McNaughten's case, and which juries are supposed to apply in the courts of to-day. I say "supposed," for juries do not apply it, and the reason is simple enough--you cannot expect a juryman of intelligence to follow a doctrine of law which he instinctively feels to be crude and which he knows is arbitrarily applied. No juryman believes himself capable of successfully analyzing a prisoner's past mental condition, and he is apt to suspect that, however sincere the experts on either side may appear, their opinions may be even less definite than the terms in which they are expressed. The spectacle of an equal number of intellectual-looking gentlemen, all using good English and all wearing clean linen, reaching diametrically opposite conclusions on precisely the same facts, is calculated to fill the well-intentioned juror with distrust. Painful as it is to record the fact, juries are sometimes almost as sceptical in regard to doctors as they always are in regard to lawyers. The usual effect of the expert testimony on one side is to neutralize that on the other, for there is no practical way for the jury to distinguish between experts, since the foolish ones generally look as learned as the wise ones. The result is hopeless confusion on the part of the juryman, an inclination to "throw it all out," and a resort to other testimony to help him out of his difficulty. Of course he has no individual way of telling whether the defendant "_knew_ right from _wrong_," whatever that may mean, and so the ultimate test that he applies is apt to be whether or not the defendant is really "queer," "nutty" or "bughouse," or some other equally intelligible equivalent for "medically insane." The unfortunate consequence is that there is so general and growing a scepticism about the plea of insanity, entirely apart from its actual merits, that it is difficult in ordinary cases, whatever the jurors may think or say in regard to the matter, to secure twelve men who will give the defence fair consideration at the outset. This is manifest in frequent expressions from talesmen such as: "I think the defence of insanity is played out," or "I believe everybody is a little insane, anyhow" (very popular and regarded by jurymen as witty), or "Well, I have an idea that when a fellow can't cook up any other defence he claims to be insane." The result is a rather paradoxical situation: The attitude of the ordinary jury in a homicide case, where the defence of insanity is interposed, is usually at the outset one of distrust, and their impulse is to brush the claim aside. This tendency is strengthened by the legal presumption, which the prosecutor invariably calls to their attention, that the defendant is sane. Every expert who has testified for the defence in the ordinary "knock down and drag out" homicide case must have felt with the prisoner's attorneys, that it was "up to them" not so much to create a _doubt_ of the defendant's sanity as to _prove_ that he was insane, if they expected consideration from the jury. Now let us assume that the defence is meritorious and that the prisoner's experts have created a favorable impression. Let us go even further and assume that they have generated a reasonable doubt in the mind of the jury as to the defendant's responsibility at the time he committed the offence. What generally occurs? Not, as one would suppose, an _acquittal_, but, in nine cases out of ten, a _conviction_ in a lower degree. The only usual result of an honest claim of irresponsibility on the ground of insanity is to lead the jury to reduce the grade of the offence from murder in the first, entailing the death penalty, to murder in the second degree. The jury have no intention of "taking the chance" involved in turning the man loose on the community and their minds are filled with the predominating fact that a human being has been killed. They have an idea that it is as easy to get "sworn out" of a lunatic asylum as they suppose it is to get "sworn into" one, and they know that if the prisoner is found to be insane when sent to State's prison he will be transferred elsewhere. They, therefore, as a rule, waste little time upon the question of how far the defendant was irresponsible within the legal definition when he committed the deed, but convict him "on general principles," trusting the prison officials to remedy any possible injustice. The jury in such cases ignore the law and decline either to acquit _or_ to convict in accordance with the test. Their action becomes rather that of a lay commission condemning the prisoner to hard labor for life on the ground that he is medically insane. Assuming that the jury take the defence seriously, there is only one class of cases where, in the writer's opinion, they follow the legal test as laid down by the court--that is to say, in cases of extreme brutality. Here they hold the prisoner to the letter of the law, and the more abhorrent the crime (even where its nature might indicate to a physician that the accused was the victim of some sort of mania) the less likely they are to acquit. The writer has prosecuted perhaps a dozen homicide and other cases where the defence was insanity. In his own experience he has known of no acquittal. In several instances the defendants were undoubtedly insane, but, strictly speaking, probably vaguely knew the nature and quality of their acts and that they were wrong. In a few of these the juries convicted of murder in the first degree because the circumstances surrounding the homicides were so brutal that the harshness of the technical doctrine they were required to apply was overshadowed in their minds by their horror of the act itself. In other cases, where either the accused appeared obviously abnormal as he sat at the bar of justice, or the details of the crime were less abhorrent, they convicted of murder in the second degree in accordance with the reasoning set forth in the fore-going paragraph. The writer seriously advances the suggestion that the more the brutality of a homicide indicates mental derangement the less chance the defendant has to secure an acquittal upon the plea of insanity. And this leads us to that increasingly large body of cases where the usual scepticism of the jury in regard to such defences is counterbalanced by some real or imaginary element of sympathy. In cities like New York, where the jury system is seen at its very best, where the statistics show seventy per cent. of convictions by verdict for the year 1907, and where the sentiment of the community is against the invocation of any law supposedly higher than that of the State, our talesmen are unwilling to condone homicide or to act as self-constituted pardoning bodies, for they know that an obviously lawless verdict will bring down upon them the censure of the public and the press. This is perhaps demonstrated by the fact that in New York County a higher percentage of women are convicted of homicide than of men. But the plea of insanity, with its vague test of responsibility, whose terms the juryman may construe for himself (or which his fellow-jurors may construe for him) offers an unlimited and fertile field for the "reasonable" doubt and an easy excuse for the conscientious talesman who wants to acquit if he can. Juries take little stock in irresistible impulses and emotional or temporary insanity save as a cloak to cover an unrighteous acquittal. In no other class of cases does "luck" play so large a part in the final disposition of the prisoner. A jury is quite as likely to send an insane man to the electric chair as to acquit a defendant who is fully responsible for his crime. To recapitulate from the writer's experience: (1) The ordinary juror tends to be sceptical as to the good faith of the defence of insanity. (2) When once this distrust is removed by honest evidence on the part of the defence, he usually declines to follow the legal test as laid down by the court on the general theory that any one but an idiot or a maniac has some knowledge of what he is doing and whether it is right or wrong. (3) He applies the strict legal test only in cases of extreme brutality. (4) In all other cases he follows the medical rather than the legal test, but instead of acquitting the accused on account of his medical irresponsibility, merely convicts in a lower degree. The following deductions may also fairly be made from observation: (1) That the present legal test for criminal responsibility is admittedly vague and inadequate, affording great opportunity for divergent expert testimony and a readily availed of excuse for the arbitrary and sentimental actions of juries, to which is largely due the distrust prevailing of the claim of insanity when interposed as a defence to crime. (2) That expert medical testimony in such cases is largely discounted by the layman. (3) That in no class of cases are the verdicts of jurors so apt to be influenced solely by emotion and prejudice, or to be guided less by the law as laid down by the court. (4) That a new definition of criminal responsibility is necessary, based upon present knowledge of mental disease and its causes. (5) Lastly, that, as whatever definition may be adopted will inevitably be difficult of application by an untutored lay jury, our procedure should be so amended that they may be relieved wherever possible of a task sufficiently difficult for even the most experienced and expert alienists. * * * * * A classification of the different forms of insanity, based upon its causes to which the case of any particular accused might be relegated, such as has recently been urged by a distinguished young neurologist, would not, with a few exceptions, assist us in determining his responsibility. It would be easy to say then, as now, that lunatics or maniacs should not be held responsible for their acts, but we should be left where we are at present in regard to all those shadowy cases where the accused had insane, incomplete or imperfect knowledge of what he was doing. It would be ridiculous, for example, to lay down a general rule that no person suffering from hysterical insanity should be punished for his acts. Yet, even so, such a classification would instantly remedy that anachronism in our present law which refuses to recognize as irresponsible those born without power to control their emotions--the psychopathic inferiors of science, and the real victims of _dementia præcox_. Of course, if the insanity under which the defendant labors bears no relation to or connection with the deed for which he is on trial, there would logically be no reason why his insanity on other subjects should be any defence to his crime. For example, there is the well-known case of the Harvard professor who was apparently sane on all other matters, yet believed himself to be possessed of glass legs. Had this man in wanton anger struck and killed another, his "glass leg" delusion could not logically have availed him. If, however, he had struck and killed one who he believed was going to shatter his legs it might have been important. The illustration is clear enough, but its application probably involves a mistaken premise. If he thought he had glass legs his mind was undoubtedly deranged--whether enough or not enough to constitute him irresponsible or beyond the effect of penal discipline might be a difficult question. The generally accepted doctrine is, that if a man has a delusion concerning something, which if _actually existing_ as he believed it to be would be _no excuse_ for his committing the criminal act, he is responsible and liable to punishment; but, as Bishop well says: "This branch of the doctrine should be cautiously received; for delusion of any kind is strongly indicative of a generally diseased mind." The new test to determine responsibility will recognize, as does the law of Germany, that there can be no criminal act where the free determination of the will is excluded by disease, and that the capacity to distinguish between right and wrong is inconclusive. It may perhaps have to take a general form, leaving it to a lay, expert, or a mixed lay-and-expert jury to say merely whether the accused had a disease of the mind of a type recognized by science, and whether the alleged criminal act was of such a character as would naturally flow from that type of insanity, in which case it would seem obviously just to regard the defendant as partially irresponsible, and perhaps entirely so. Possibly the practical needs of the moment might be met by permitting such a jury to determine whether the defendant had _such_ a knowledge of the wrongful nature and consequences of his act and such a control over his will as to be a proper subject of punishment.[54] This would require the jury to find that the defendant had some knowledge of right and wrong and the power to choose between them. In any event, to render the accused entirely irresponsible, his act should arise out of and be caused solely by the diseased condition of his mind. The law, while asserting the responsibility of many insane people, should recognize "partial" responsibility as well. The reader may feel that little after all would be gained, but he will observe that at any rate such a test, however imperfect, would permit juries to do lawfully that which they now do by violating their oaths. The writer believes that the best concrete test yet formulated and applied by any court is that laid down in Parsons _vs._ The State of Alabama (81 Ala., 577): "1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane? "2. If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible. "3. If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur: "(1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed. "(2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely." But whatever modification in the present test of criminal responsibility is adopted, there must come an equally, if not even more important, reform in the procedure in insanity cases, which to-day is as cumbersome and out of date as the law itself. As things stand now in New York and most other jurisdictions there are no adequate means open to the State to find out the actual present or past mental condition of the defendant until the trial itself, and ofttimes not even then. In New York, in cases like Thaw's, the accused, while fully intending to interpose the defense of insanity (which he is now permitted to do simply under the general plea of "not guilty") may not only conceal the fact until the trial, but may likewise successfully block every effort of the authorities to examine him and find out his present mental condition. He may thus keep it out of the power of the District Attorney to secure the facts upon which to move for a commission to determine whether or not he ought to be in an insane asylum or is a fit subject for trial, and at the same time prevent the prosecutor from obtaining any evidence through direct medical observation by which to meet the claim, which may be "sprung" suddenly upon him later at the trial, that the defendant was irresponsible. In order that this may be clearly understood by the reader he should fully appreciate the distinction between (1) the claim on the part of an accused that he is at present insane, and for that reason should not be either tried or punished for his alleged offence, and (2) the defence that he was (irrespective of his _present_ mental condition) insane within the legal definition of irresponsibility at the time he committed it. No person who is incapable of understanding the nature of the proceedings against him or of consulting with counsel and preparing his defence can be placed on trial at all, or, if already on trial, can continue to be tried, and if a defendant "appears to the court to be insane," the judge may appoint a commission to examine him and report as to his present condition. This may be done upon the application either of the State or of the accused through his counsel. It was such a commission to determine the accused's present mental condition that District Attorney Jerome, upon the basis of the evidence introduced by the defence, applied for and secured during the first trial of Harry K. Thaw. The commission reported that Thaw was sane enough to be tried and the court then proceeded with the original case for the purpose of allowing the jury to say whether he knew the nature and quality of his act and that it was wrong when he shot and killed White. This was a totally distinct proceeding from the interposition of the DEFENCE that the accused was irresponsible _when he committed the crime_ charged against him and was not inconsistent with it. Now supposing that the Commission had reported that Thaw _was_ insane at the time of examination and not a fit subject for trial, but, on the contrary, ought to be confined in an insane asylum, the District Attorney would have spent some twenty odd thousand dollars and a year's time of one or more of his assistants in fruitless preparation. Yet, as the law stands on the books to-day in New York, there is no adequate way for the prosecution to find out whether this enormous expenditure of time or money is necessary or not, for it cannot compel the defendant to submit either to a physical or mental examination. To do so has been held to be a violation of his constitutional rights and equivalent to compelling him to give evidence against himself. Thus when Thaw came to the bar at his first trial the State had never had any opportunity, through an examination by its physicians, to learn what his present condition was or past mental condition had been. The accused, on the other hand, had had over six months to prepare his defence and had fully availed himself of the time to submit to the most exhaustive examinations on the part of his own experts. The defendant's physicians came to court brimming with facts to which they could testify; while the State's experts had only the barren opportunity for determining the defendant's condition afforded by observing him daily in the court room and hearing what Thaw's own doctors claimed that they had discovered. There was no chance to rebut anything which the latter alleged that they had observed, and their testimony, save in so far as it was inconsistent or contradictory in itself, remained irrefutable. There is probably no procedure which would be held constitutional whereby a compulsory examination of the accused could be had upon the mere application of the prosecuting authorities; but as a commission may generally be appointed at any time after an accused has been indicted if he "appears" to the court to be "insane," and as it is usually within the power of the District Attorney where such is the case to bring sufficient evidence of it to the attention of the court before the prisoner is brought to trial, little time is actually lost and justice is rarely defeated except in those cases (such as Thaw's) where an attempt is to be made to prove the accused insane _at the time of the alleged crime_ although _sane_ at the time of trial. Even here it would be the simplest thing in the world to remedy the difficulty and the proper legal steps in all jurisdictions should be taken immediately. The two chief objects of such reforms should be, first, to relieve the ordinary jury in as many cases as possible from the necessity of passing upon the delicate issue of a defendant's mental condition at a previous time, and second, where this may not be avoided, to make their task as easy as possible by providing (_a_) a more scientific and definite test of legal responsibility and (_b_) an opportunity for adequate examination of defendants availing themselves of this defence. This last and most practical reform can be easily secured by a slight alteration in the New York Code of Criminal Procedure, which already provides both for the entering of the specific plea of insanity and for the introduction of the defence and the proof of insanity under the general plea of "not guilty." At present the defendant has his choice of openly announcing or of concealing until the trial his intention of claiming that he was insane and so irresponsible for his crime. This is an advantage the results of which were probably not fully contemplated by the Legislature, and one to which an accused has no fair claim. Fortunately, in the same section of the Code (658), which provides that the court may appoint a Commission to inquire into the sanity of a defendant at the time of his trial, there exists another provision, hitherto little noticed, that "When a defendant PLEADS INSANITY, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his insanity _at the time of the commission of the crime_." If a defendant intends to prove himself irresponsible for his offence, why should he not be compelled to enter a specific plea to that effect? Once he has entered that plea, the law as it stands just quoted will do the rest. No reason has been brought to the attention of the writer why the admission of any evidence upon the defendant's trial tending to show that he was mentally irresponsible at the time of committing the crime should not be made contingent upon the defence of insanity having been _specifically pleaded_ either at the time of his arraignment or later by substitution for or in conjunction with the plea of "not guilty." This would deprive him of no constitutional right whatever. There is no legal necessity of permitting an accused to prove insanity under a general answer of "not guilty." Then upon his own plea _that he had been insane_ he could instantly be committed to some place of observation where a permanent medical board of inquiry could be given full opportunity to examine him and study his case with a view to determining his present and past mental condition. He would still have in prospect his regular jury trial, but if this board found him at the present time insane, the court could immediately commit him to an asylum pending recovery, precisely as under the present procedure, while if they found him sane at the present time, but reported that, in their opinion (whatever test, "medical" or "legal," they might have applied), he was _irresponsible at the time he committed the crime_, it is unlikely that any prosecutor would bring him to trial. If, however, they reported _that he was not only sane, but had been sane_ at the time of his crime, it is probable that any proposed defence of insanity would be abandoned, while if it was still urged by the accused, the opinion of such a board would carry far greater weight at the ultimate trial of the case than the individual opinions of experts retained and paid by either side for that particular occasion only, and having had only a comparatively limited opportunity for examination. At any rate, if the court called in the services of such a board of medical judges to assist as _amici curiæ_ in determining the defendant's condition, while their opinion would not be conclusive upon the jury, it would at least do away with the present lamentable necessity of learned men answering "yes" or "no" to a hypothetical question fifty thousand words long, when the most superficial personal examination of the accused would settle the matter definitely in their minds. Such a procedure is in general use in Germany and other continental countries, and is likewise substantially followed in Massachusetts, Maine, Vermont, and New Hampshire.[55] There is good reason to hope that we may soon see in all the states adequate provision for preliminary examination upon the plea of insanity, and a new test of criminal responsibility consistent with humanity and modern medical knowledge. Even then, although murderers who indulge in popular crime will probably be acquitted on the ground of insanity, we shall at least be spared the melancholy spectacle of juries arbitrarily committing feeble-minded persons charged with homicide to imprisonment at hard labor for life, and in a large measure do away with the present unedifying exhibition of two groups of hostile experts, each interpreting an archaic and inadequate test of criminal responsibility in his own particular way, and each conscientiously able to reach a diametrically opposite conclusion upon precisely the same facts. FOOTNOTES: [Footnote 51: The questions propounded to the judges and their answers are here given: _Question 1._--"What is the law respecting alleged crimes committed by persons _afflicted with insane delusion in respect of one or more particular subjects or persons_, as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit? _Answer 1._--"Assuming that your lordships' inquiries are confined to those persons who labor _under such partial delusions only, and are not in other respects insane_, we are of opinion that, notwithstanding the accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is, nevertheless, punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land. _Question 4._--"If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused? _Answer 4._--"The answer must of course depend on the nature of the delusion; but, making the same assumption as we did before, namely, that he labors under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusions exist were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and kills the man, as he supposes in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. _Question 2._--"What are the proper questions to be submitted to the jury when a person, afflicted with insane delusions respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for instance), and insanity is set up as a defence? _Question 3._--"In what terms ought the question to be left to the jury as to the prisoner's state of mind when the act was committed? _Answers 2 and 3._--"As these two questions appear to us to be more conveniently answered together, we submit our opinion to be that the jurors ought to be told, in all cases, that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." (The remainder of the answer goes on to discuss the usual way the question is put to the jury.)] [Footnote 52: Dew _vs._ Clark.] [Footnote 53: "General View of the Criminal Law," p. 80.] [Footnote 54: See State _vs._ Richards, 1873, Conn.] [Footnote 55: Another equally efficacious means of dealing with the matter would be to substitute, upon a defendant's plea of insanity, a full jury of experts--like any "special" jury--for the ordinary petit jury.] INDEX Abatement, plea in, 96 Acquittals, table of percentages of, 175, 176, 177 of women, 299, 300 danger of, by lawless jury, 340-344 "on ground of insanity," meaning of, 352 Adams, "Al," 319 Alabama, test of criminal responsibility in, 368 Alibi, use of perjured evidence to prove, 224, 225 Ammon, Robert A., and "The Franklin Syndicate," 25, 26 Appeal, from magistrate's decision, 47 number of appeals so taken, 47 no appeal by aggrieved person if magistrate discharges, 47 few appeals from Special Sessions, 62 unfortunate that prosecution cannot appeal on verdict of acquittal, 186, 337 defendant has right of, 337 reversals on, 339, 340 Archer, Agnes, case of, 301 Arrest (see Chapter III), right of citizen to arrest, despite common belief, 33 right to, ordinarily left to police, 33 anyone may arrest for crime committed in his presence, 35 no one may arrest for felony without his view, unless felony committed, 35 difference in citizen's and officer's right to arrest, 35, 37 police construe their right to arrest more broadly than law permits, 35 example of above, 36 right of police to arrest at night under New York Criminal Code, 36 force permissible in making arrest, 38 cases in which the power may be abused, 38 Arrest, power to arrest to be exercised with discrimination, 40, 41 the first step in procedure toward conviction, 42 after arrest prisoner taken before magistrate, 42 on bench warrant if indicted by Grand Jury, 42 on suspicion illegal but necessary, 43 number of arrests in New York County in 1907, 46 table showing nativity of those arrested, 46 Arrest of judgment, motion for, 269 Assault, power of magistrate should be extended to punish simple assault, 49 Autrefois Acquit. See Pleas. Bail, in case of misdemeanor may be assessed by sergeant on duty, 42 right of accused to, except in case of murder, 85 bail cases not tried in summer, 126 forfeiture of, 127, 128 recommendation for discharge of, 170 "skipping" bail, 317 Bauman, case of, 323 Bench warrant, indicted and arrested under, 42 Blindness, "An Act for the Prevention of," 15 Branding, 266-268, 278 Breach of peace, 49 "Bridge of Sighs," 115 Capital punishment, no woman has suffered here in two decades, 299 cases of, comparatively rare, 246 Challenges, number of peremptory in homicide cases, 215 reduction to reasonable number desirable, 325, 346 in larceny cases, 346 Cherry, "Tom," 73, 74 Cignarale Chiara, case of, 299 Clancy murder case, 325 Code. See Statutes and Criminal Law Cohalan, Daniel F., 216 Commercial Crime. See Crime Commission, to take testimony without state, 123 application for, to take testimony for purpose of delay, 315 right to take such testimony confined to defendant, 315 motion for, 317 to determine present mental condition of an accused, 369-72 to determine mental condition at time of offense, 369-76 desirability of such being permanent and salaried, 373, 374 Commutation, of sentence for good behavior, 273 how determined, 273 periods of, (note) 273 distinguished from indeterminate sentence, 274 Complaints, in Court of Special Sessions, 63 or informations, ancient form of, 89 Confession, not sufficient to convict without corroboration, 330 Contempt of court, practical inability of New York courts to punish editorial contempts, 347 defined in Penal Code, 348 Convictions, proof of prior, admitted for what purpose, 148, 166 table showing percentages of, 175, 176 too few, 177 of innocent men almost unknown, 247, 336 of women indicted, in same proportion as men, 299, 300 County clerk, grand jurors drawn by, 358 "County Detectives," 87 Court officers as plea getters, 173 Cowing, Rufus B., Judge, 255 Crime, What is Crime? Chapter I, definition of, 1 relation of, to wrongs, 1, 2, 3 artificial character of laws defining, 4 _mala prohibita_ and _mala in se_, 6 little significance in mere name of crimes, 6 arbitrary nature of acts made crimes, 7 relation of, to insanity, 22 theory that crime is a disease overworked, 23 criminal instinct in all, 23 commercial crime favored by law, 24, 30, 223 Crimes, definition of, limiting it to those who "make a living" thereby is inadequate, 28 fundamental cause of, disrespect for law, 30, 334 attitude of jury toward commercial crime, 210, 211 What Fosters Crime? Chapter XVII not on increase in proportion to growth of population, 334 fostered by idea that criminal justice is slow and uncertain, 335, 336 by constitutional safeguards, 335, 336 by defects in our criminal law and procedure, 338 by attitude of "yellow" press, 338 by belief that higher courts reverse on technical grounds, 339 by acquittal of guilty by sentimental juries, 340-342 restraints on, 344-346 fear of present criminal prosecution and punishment greatest restraint on, 344-346 may be deliberate or the result of accident or impulse, 345 Criminal Courts Building, description of, 115 Criminal law, adapted especially to punishment of crimes of violence, 16 impression of ordinary citizen concerning, 149, 335 at present tends to retard and defeat justice, 336 present state of, result of exaggerated regard for personal liberty, 336 English system of, better than ours, 336 leaves many technical avenues of escape, 338 Criminal responsibility (see Insanity and the Law, Chapter XVIII), 350 test of, 353 unchanged since case of McNaughten, 353 questions propounded by House of Lords to the judges, with their answers, 354 delusions in the law of insanity, significance of, 355, 356 doubtful interpretation to be given to words "wrong" and "know," 357 Hadfield's case, 358 Criminal responsibility, present New York test does not recognize any lack of inhibitory capacity, 359 test is imperfect, inadequate, and vague, 357, 359 difficult of application, 357 juries disregard it except in extreme cases, 360-366 expert testimony in insanity cases discounted by jury, 360, 361 requirements of proposed new tests, 366-368 Alabama test, 368 the "defense" of insanity often confused with claim of present insanity, 369 present insanity determined by commission, 369-376 mental condition at time of crime should be likewise determined, 369-376 defendant may refuse to permit examination, 370 present ineffectuality of law in New York, 370-376 could be easily remedied, 372-374 plea of insanity should be made compulsory, 373 defendants so pleading should be remanded for observation by permanent, salaried, expert commission, as in Germany and elsewhere, 373, 374 probable unconstitutionality of other suggested remedies, 374 Criminals, not necessarily worse than other people, 5, 9 not usually criminal in all directions, 5 generally specialists, 5 intentional, as distinguished from accidental or occasional, 9 as distinguished from sinners, 17 Who are the Real Criminals? Chapter II Charles D. Warner's definition of, 19 traditional criminals few, 19 the modern criminal, 20 degenerate class of, exaggerated by continental writers, 21 sentimentality concerning, over-done, 21, 23, 196 majority of, not mentally defective, 22 close relation between all, 22, 29 why men are criminals, 24 dishonest business men real criminals, 24, 25 law at present favors business criminal, 25 Criminals, professional criminals and degenerates form small proportion of law breakers, 29 distinction between criminals and convicts, 42 begin with petty infractions of law, 72 professional criminals generally plead guilty, 148 receive consideration for saving expense of trial, 148 may obtain speedy trial if desired, 152 weight given to prior conviction, 148 Criminology, modern tendencies in, 17 penological movements, first in direction of prison reform, 21 and second in study of degeneracy, 22 Cross-examination, use of, 231, 240 impossible to cross-examine through interpreter, 239 of women difficult, 291, 292 Defendants, hostile attitude of courts to, in ancient times, 16 present rights of, 16, 17 presumed to be innocent, 44 have right to counsel, 43 sensations of, 45 cannot be compelled to testify, 91, 326 may move to dismiss indictment and thus retard trial, 91 may easily obtain speedy trial, 152 their own testimony generally convicts, 154 rapid trial redounds to their benefit, 156 if innocent need not fear to testify, 162 majority of those failing to testify convicted, 163 may defend themselves, 164 often wise to rest on People's case, 164 danger to, by perjury of one of their own witnesses, 164 influenced to plead by result of prior cases, 174 benefit by prosecutor's desire to dispose of case, 220 favored by jury, 222 description of, while waiting verdict, 241 right to poll jury, 247 when convicted rarely show emotion, 247, 248 may present plea for clemency before sentence, 271 latitude allowed, 337, 338 (See Criminals.) Degrees of crime, arbitrary character of, 8 Delays, The Law's, Chapter VII secured by motions based on irregularities before Grand Jury, 93 delay the first, in the police court, 108 delay the second, before the Grand Jury, 114 delay the third, pleading, 119 delay the fourth, in preparation of case for trial, 121 delay the fifth, after case on calendar, before trial, 122 delay the sixth, dilatory tactics of counsel for defense, 123 delay the seventh, bail cases not tried in summer, 126 delay the eighth, forfeiting recognizance, 126 alienates support of citizens, 129 defendant has everything to gain by delay, 314 method of securing, 315, 316 motions to secure, 316 many penal statutes and procedure tend to retard and defeat justice, 336 (See Red Tape, Chapter VIII, 129.) Delusions, significance of, in law of insanity, 355, 356 _Dementia præcox_, 351 Demurrer, 316 Dinser, Gustav, case of, 289 Disagreements, two equivalent to acquittal, 220 large number of trials resulting in, 244 Disorderly conduct, jurisdiction over, by magistrate, 49 Dodge-Morse divorce case, 321, 322 Donohue _v._ N.Y., N.H. & H.R.R., case of, 259 Dummies, 318-322 attempt to induce witness to identify, 321, 322 most famous case of, 321 District Attorney (see Prosecutor), power to act when magistrate discharges, 47, 48 copies papers forwarded from magistrate and subpoenas witnesses for Grand Jury, 87 prepares calendar for Grand Jury, 87 draws indictments, 87 preliminary examination of witnesses by, 117 a quasi-judicial officer, 167, 168 limitations placed upon, by laws of evidence and procedure, 165, 168 District Attorney, should move defendant's discharge if convinced of innocence, 168 has same latitude in summing up as defendant's attorney 168 in presentation of case, People should have same rights as an individual, 168 should win confidence of jury, 169 function of, 304 can rebut defense more easily where it has been exposed before magistrate, 312 necessity of examination of jury by, 323 Electric chair, jury send to, only in atrocious cases, 213 Ellis, William H., case of, 315, 316 Elmira, release from, 165 sentence to, indeterminate, 165 Evidence, character of defendant provable only when put in issue by himself, 161, 166 defendant's right to give, himself, 161-162 but no inference to be drawn from defendant's failure to testify, 160, 162 rule permitting defendant to testify practically forces him to do so, 163 good character of complainant and witnesses only provable on attack, 167 amount of strictly accurate testimony very small, 225 "refreshing recollection," in practice absurd, 235 method of refreshing recollection, 235 (See Witnesses) Ex Parte, proceeding before Grand Jury is, 90, 99 Felix, John, case of, 15 Felonies, The Trial of, Chapter IX (See District Attorney, Prosecutor, Defendants, etc.) distinction between felonies and misdemeanors often without merit, 30 number of persons arrested for, 85 should be prosecuted by information, 100 rapidity of trials for, 152, 154 description of trials for, 150 attempted suicide, 171 compounding, by agreeing not to prosecute, 349 Foster, Judge Warren W., 216 "Franklin Syndicate, The," 26 Fursman, Judge, 321 General Sessions, Court of, appeal to, from magistrate's courts, 47 procedure in, 119, 150, 151 description of (see Felonies), 150 Goff, Recorder, 86, 290 Habeas Corpus, for prisoners held in police court, 43 to test magistrate's jurisdiction, 47 only remedy for illegal commitment, 49 writ of, often secured for delay, 317 Hackett, Orlando J., case of, 290 Hadfield's Case, 358 Harris, Carlyle W., case of, 263, 264 Hawkins, Sir Henry, on want of uniformity in sentences, 189, 190 Homicide, typical case of manslaughter, 8 large proportion of defendants charged with, plead guilty to manslaughter, 174 charge of court in cases of, 243 verdicts in cases of, 246 sentence in cases of murder fixed by law, 261 larger proportion of women indicted convicted of, than men, 334 Howe, "Bill," 297, 298, 323 Howe & Hummel, 322 Hummel, Abraham, 321, 322 Imprisonment, pending appeal, advisability of, 346 Impulse. See Irresistible. Indeterminate sentence, definition of, 273 constitutionality of, upheld by courts, 274 distinguished from commutation, 274 Indictments, found by Grand Jury, 81 "true bills," 82 number of, found, 85 drawn by District Attorney, 87 form of, 87, 88 for larceny, 88, 89 invalid, when, 91 defendant may move to dismiss, when, 91, 92 ratio of women to men indicted, 292 not "pigeon-holed" or "lost" in New York County, 314 motion to dismiss, 317 for forgery, 331 Information, in Court of Special Sessions, 48, 49 Information, of aggrieved party, old form, 89 proceeding by, in different states, 100 all felonies should be prosecuted by, 100 Insanity, not true that majority of criminals are mentally defective, 22 sentence cannot be pronounced on insane person, 269 how those insane at sentence are dealt with, 269 defendants unlikely to feign, at sentence, 270 used as means of avoiding trial by rich, 317 As a Defense to Crime, Chapter XVIII, 350 (Also see Criminal Responsibility and Commissions) Inspection, of Grand Jury minutes, 122, 316 Interpreters, usually very incompetent, 239 difficulty of cross-examining through, 239 Irresistible impulses not recognized by present New York test of responsibility, 359 Johnson, Richard, words of, before sentence, 262 Judge, The (Chapter X), functions of, 178 most difficult function of, to impose sentence, 178, 179 his conduct during trial, 179 may "sum up" in England but not here, 179, 337 his business practically to "even things up," 182 should interrogate witnesses, 182 difference between his theoretical and practical functions, 179, 182 should not interfere with jury on questions of fact, 183 able to convey opinion to jury despite the law to contrary, 184 most judges too lenient, 187, 195, 196 tendencies often well known, 187, 188 want of uniformity in sentences, 189, 199 interference with judges in sentences, 191 matters presented to, in determination of sentence, 192, 193 restitution considered by, in sentencing, 195 reasons for leniency, 195, 196 fear of reversal, 196 Judge, impression that judge is easy-going or subject to influence conduces to lawlessness, 197 judicial propriety desirable, 198 sometimes gives benefit of reasonable doubt after conviction, 199, 200 inequality in punishment, 200-202 no place for weak judge, 204 when a law-breaker, 210 responsibility of, in sentencing, 261, 272 Judgment, arrest of, 269 Jury, Grand (Chapter VI) power to hold for, by magistrate, 47 indict as matter of course, 56 indictment must precede trial for felony, 81 composition of, 81, 82 finding true bill by, 82 is archaic, 82 procedure by information in states where there is no grand jury, 82 first record of Grand Jury proceeding in New York, 82, 83 number of persons held for, in last six years, 85 how chosen, 86 charged by judge, 87 calendar of, prepared by district attorney, 87 nature of proceedings before, 90 may send for witnesses, 91 relieves district attorney of responsibility for failure to prosecute, 91 historical development of, (footnote) 92-95 irregularities before, 93 power as general inquisitorial body, 93, 94 power of, vast, 94 tendency to exceed powers, 95, 96 presentment by (see Presentment), 96, 97 why not abolish? 99 original necessity for, has disappeared, 98, 99 one purpose only for which it should be continued, 98, 101 original advantage of, 99 out of harmony with present institutions, 99 few cases originate before, 100 abolished in certain states, 100 subpoenas to appear before 115 description of proceeding before, 116-118 delay before, 119 indict for "murder" in most homicide cases, 174 Jury, Petit (Chapter XI), trial before, after indictment, 56 disinclination of, to convict, 57 find it difficult not to be prejudiced by defendant's failure to testify, 160, 161 improves with service, 169 see little of professional criminals, 148, 169 inclined to take law in its own hands in trivial cases, 171, 172 inclined to convict on substantial evidence in serious cases, 172 petty offender profits by lawlessness of, 172 why efficient in criminal cases, 172 when at its best, 173 apt to acquit early in term, 173 percentage of convictions to acquittals by, 175, 176 function of, 205 capacity of, 205 apt to usurp functions of judge, 206 English jury more satisfactory, 206 have little regard for law here, 207, 208 inaccuracy of verdicts by, 209 reason for arbitrariness on part of, 209 attitude of, toward different crimes, 211, 212 have small regard for life, 209, 213 time require to select, in homicide case, 215 futility of wasting time in selection of, 215 some examination of, imperative, 216 method of escaping service on, 217 often contains officious members, 219 desirability of homogeneity in, 219, 220 eleven jurors should find verdict, 221, 222 favors defendant, 222 practically successful, 223 first member of, selected is foreman, 243 take time before returning verdict, 253 deliberations of secret, 254 failure in duty by, 255 the influence of one strong-minded member upon, 255, 256 effect on, of women's evidence, 293 effect of appeals to sympathy, 322 disregard the law in applying test of criminal responsibility, 360-366 Jury system, works best in criminal cases, 192 a practical success, 223 works "substantial justice," 223 brought in contempt by sentimental or lawless acquittal, 343, 344 Jurisdiction, of magistrate, 47 of courts tested by habeas corpus, 43, 47 Larceny, magistrate compelled to hold defendant for higher court in all cases of, 48 summary jurisdiction of magistrate should be extended to petit larceny, 48 now frequently treated in police courts as disorderly conduct, 49 form of indictment for, 88 grand, value necessary to constitute, 102 Lawyers, retained to advise prospective criminals, 10 seek to postpone rather than hasten trials, 152 business of, to create reasonable doubt, 304 (See Shysters) Legal Aid Society, 77 "Legal" insanity, 354, 360-366 Levy, Abraham, 323 Lincoln, Abraham, advice of, 326 Liquor Tax cases, the bane of Special Sessions, 69 few convictions for violation of (see note), 210 juries reluctant to convict in, 70, 209, 210 Livingston, case of, 13 Magistrates, broad power of, 43, 48 committment by, 45 how regarded by humble classes, 46 number of cases disposed of yearly by, 46 jurisdiction of, 46, 47, 48 power to hold for higher court of, 47, 85 jurisdiction of, should be extended over petit larceny and simple assault, 48, 49, 57 jurisdiction of, over breach of peace, 49 tendency of, to hold for higher courts rather than spend time for examination, 56 power of, for good, 58 close contact of, with police, 58 appointment of, generally political, 59 (See Police Courts) _Mala prohibita_, as distinguished from _mala in se_, 6 illustrations of, 10 Manhattan Bank, case of, 254 Mayhem, crime of, 316 McCord, People _vs._, case of, 12 McNaughten's case, 353 doctrine of, 354 "Medical" insanity and "legal" insanity, 354, 365 Miller and "The Franklin Syndicate," 26 Misdemeanors (Chapter V), may be morally worse than felonies, 6 illustrations of what are, in New York state, 10 distinction between, and felony often without merit, 30 tried in Special Sessions, 85 (See Special Sessions) Mock Duck, case of, 218, 318, 319 Moran, trial of, 216 Morse-Dodge divorce case, 320, 322 Motions, for delay in proceedings, 316, 317 New trial, motion for, at sentence, 276 "Not proven," inadvisability of a verdict of, 244, 245 Nott, Charles C., "In the District Attorney's Office," 155 cases cited by 162, 166 quoted on defendant's failure to testify, 163 Oath, in police court, 112 before Grand Jury, 118 Omissions, usually not crimes, 10 illustrations of, 10 Osborne, James W., 328 Parker, Mabel, case of, 330 Parole. See Suspended Sentence Patterson, Nan, case of, 299, 301, 335 Pedigree, taking of, 155, 248, 252 Perjury, crime of, 224, 225 large amount of, among defendants' witnesses, 225 false answer in taking pedigree is perjury, 251 women more ready to commit, than men, 285 in defendant's own testimony, 311 Plea, in Court of Special Sessions, 63, 120 in abatement, 92 of "guilty," "not guilty," and "autrefois acquit," 92 withdrawal of, 155 benefit of clergy, 266-269 of "insanity" should be compulsory, where defense is anticipated, 373 Police Courts (Chapter IV). See Magistrates right of arrested to immediate hearing in, 43, 85 right to counsel in, 43 attitude in, toward defendants, 44 description of, 44, 109 harsh treatment in, 45 proportion of cases there disposed of summarily, 45 great importance of, 45 a day's work in, 50, 56 proceedings in, 110, 111 delay in, 113 Police headquarters, described, 32 Police judge. See Magistrate Police officers, great awe of persons in general for, 31 right to arrest (see Arrest) contact with magistrate, 58 assault on, 70 the police sergeant, 107 Police station, proceeding in, 107 "Policy," business of, 319 (See Al. Adams) Polling, of jury, 247 "Poor Man's Court of Appeals, The." See Police Courts. Prescott, quoted on integrity of judges among Aztecs, 198 Presentments, by Grand Jury, 96 often unnecessary and frivolous, 97, 98 Press, sensational press fosters crime, 334, 338 domination of court room by, 347 trial by, 347, 348 Property clerk, at police headquarters, 132, 134, 137, 138, 146, 147 at district attorney's office, 134 Prosecutor, effect of experience on, 4 often protects accused from shysters, 78 delicate position of, when informed of facts inadmissible in evidence, 166 allowed small latitude, 337 (See District Attorney) Punishment, unfair apportionment of, under the law, 26 once a matter of private vengeance, 32 now for protection of public safety, 32 desire for punishment of accused still moving cause of most prosecutions, 32 imposed by magistrate, 47 inequality in, the exception, 200 (See Sentences) Purdy, Ambrose H., 324 Questions of House of Lords to English Judges after McNaughten's case, 354 Reasonable doubt, definition of, 160 giving benefit of, _after_ conviction, 199, 200 difficulty in finding guilt beyond, 244, 245 defendant entitled to benefit of, 304 certificate of, 346 Recognizance, form of (see Bail), 127 Recommendation, cases dismissed on, of district attorney, without trial, 170 ground of, 170, 171 to mercy by jury, 245 to mercy usually considered by jurors as part of verdict, 245 to mercy, facilitates agreement, 246 "Red Tape" (Chapter VIII), at police headquarters, 137, 138, 144, 147 at district attorney's office, 140, 143 (See Delays) Requests, to charge, 339 Reversals of convictions, effect on community of, 198 number of, on appeal, 339, 340 rare on technical grounds in New York state, 339 usually fault of trial judge, 340 "Ringers," 318-320 "Runners," methods of, 73, 75 Scannell, John J., case of, 92 Schorling, J. Holt, quoted, table of increase and decrease in specific crimes, 20 Sentences (Chapter XIV), want of uniformity in, 189, 199 judges too lenient in, 187, 195 matters considered by judge in imposing, 192, 195 impossible to secure equality in, 200, 202 table showing sentences for different crimes, 201, 202 might be imposed by judges _en banc_, 203 for perjury, heavy, 224 jury would be more severe in, than judge, 245 for murder fixed by law, 261 great responsibility of judge in matter of, 261 to life imprisonment, 264 of death in all felony cases, formerly, 265 Sentences, motions to arrest judgment, 269, 270 appeal for clemency before, 271, 272 little mercy to old offenders in, 272 (See Indeterminate Sentences) remarks of judge at time of, 274, 275 lightness of, 275 advantages of short sentences, 275 "Shysters," methods of, 58, 74-80, 122, 327 (See Tricks of the trade) "Sick engineers," 14, 170 never plead guilty, 170 Special panel, 173 Special Sessions, Court of (see Misdemeanors), information in, 48 power to try petit larceny cases, 48 old court of, 62 present composition of, 62 number of cases disposed of in, 62, 63 procedure in bringing cases before, 63 speedy trial in, 63 jurisdiction of, 64, 65 rapidity of procedure in, 65, 66 Liquor tax cases in, 69 attitude of, toward assaults on police officers, 70 practically final court of disposition for misdemeanor, 71 important cases often tried therein, 71 efficiency of, 62, 72 lawyers in, 72, 73 menace of "shysters" in Special Sessions and police courts, 79, 80 Statutes, multiplicity of, undesirable 12 "to prevent blindness," 15 punishing contempt, 348 Stay, of proceedings, 317 Stolen property, recovery of, by owner. See Red Tape innocently receiving, 329 Street walkers, 75, 76, 77 Subpoenas, served by district attorney for Grand Jury, 87 Summerfield, "Larry," 14, 26, 27 Sweetser, William A., 321 Supreme Court, Criminal Term, tries most of homicide cases, 174 Suspended sentences, in large number of cases against first offenders, 195, 261 Technicalities, reversal on technical grounds, 339, 340 Technicalities, means to abolish, 347 Test of criminal responsibility, 353 proposed new tests, 360-368 Thayer, J.B., on historical development of Grand Jury (footnote), 92, 95 cited, 221, 301 Thaw, case of H.K., 350, 370 "Tombs," The, 115 Tricks of the Trade (Chapter XVI), of the successful practitioner, 303 bolder than in civil courts, 304 inducing complainant to withdraw charge, 309, 310 securing adjournments, 310 persuading court that case is trivial, 310 obtaining immediate hearing to find out People's evidence, 311 waiving examination to conceal defendant's case, 311 which are utilized after magistrate has held accused, 314 securing permission for defendant to appear before Grand Jury, 314 securing delay in trial, 314 introducing "ringers" in place of real defendant, 318-320 attempt to have witnesses identify dummies, 321, 322 appeals to sympathy of jury, 305, 307, 322 offer to "take first twelve" jurors, 323 obtaining one favorable juror, 323 getting members of same race as defendant on jury, 324 gaining good will of jury by chance remark, 325 defendant's counsel intentionally appearing intoxicated, 325 supplying missing evidence in counsel's opening or closing, 326, 328 getting one of two defendants to take entire blame, 328, 332 most of them unsuccessful, 333 True bill. See Indictment Twitchell, case of, 282, 283 Verdicts (Chapter XIII), lack of accuracy in, 209 arbitrariness of, 209 form of, 243 procedure in rendering, 244 difficulty in reaching, 244, 245 of murder in first degree rare, 246 how received by defendants, 246, 247 slowness in reaching, 253 Verdicts, in Manhattan Bank case, 255 by eleven jurors, advisability of, 347 _Voir dire_, 305, 324 Warren, Chas. D., definition of criminals by, 19, 24 within the definition, 24 "Watch, The," 109 Wellman's "Art of Cross-Examination," 282, 287, 298, 299 Wigmore, Professor John H. See Introduction "Wire tappers," wire tapping described, 14 (See McCord and Livingston and Tompkins cases) Witnesses (Chapter XII). See Evidence. value of testimony of, 224 original capacity of, for observing correctly, 225 children make remarkable, 225, 226 often honestly mistaken, 226 present stronger testimony in court than upon preliminary examination, 228 unconscious amplification by, 229, 230 fallibility of the honest witnesses, 230 recollect impossible details, 232 who refresh recollection, 233 ultimate test of value of testimony of, 236 physical condition of important, 236 to be convincing must be positive, 237 the most effective witness with jury, 237 measurement of time by, 238 difficulty of finding language comprehensible to, 238, 239 difficulty with foreign, 239 Wood, Fernando, 319 Women in the Courts (Chapter XV), sentences of, table, 202 their evidence originally regarded with suspicion, 279-281 men said to rely on power of 281 Women in the Courts, reason, women on intuition, 281 do not differ from men in original capacity to observe, 282 confuse knowledge with imagination and belief, 282 illustration, 283 their habit of stating inference, 283 more ready to swear testimony through than men, 284 more ready to commit perjury than men, 285 often make remarkable witnesses, 285 frequently couple with answer statement damaging to defendant, 285 silent cross-examination of, the most effective, 286 old women simulating stupidity the most dangerous, 288 more difficult to cross-examine than men, 291, 292 testimony of, little different from men's, 292 number of, indicted and tried, 292 number of complaints by, 292 tried by opposite sex, 293 more likely to persuade jury than men 293, 295 effect of beauty of, on jury, 295 juries apt to be more lenient with, 296 no woman has suffered death penalty in this country in twenty years, 299 number of, convicted in proportion to those indicted compared with men, 299, 300 number of, prosecuted, few, 300, 301 earliest case on record of prosecution of woman for murder, 301 larger proportion of, charged with murder, than men convicted, 334 false popular impression that few women are convicted, 334 Wrongs, relation of, to crime, 1, 2, 3 huge number of, not crimes at all, 7 BY ARTHUR TRAIN TRUE STORIES OF CRIME FROM THE DISTRICT ATTORNEY'S OFFICE _Illustrated. 12mo, $1.50_ "The fascination of the detective story and the flavor of truth combine to give these stories a unique place in literature."--_Montreal Gazette._ "Each chapter recounts some peculiar and notable phase of criminal activity. 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New and Enlarged Edition $1.50 Mortmain. Illustrated $1.50 CHARLES SCRIBNER'S SONS 
8691	----	Kaelbling, Charles Franks and the Online Distributed Proofreading Team THE AMERICAN JUDICIARY BY SIMEON E. BALDWIN, LL.D. CONTENTS PART CASES CITED. I. THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES. II. THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS. _PART I_ CHAPTER I. ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY. II. THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS. III. THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT. IV. THE FORCE OF JUDICIAL PRECEDENTS. V. THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW. VI. THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW. VII. THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW NOT TO BE LAW. _PART II_ VIII. THE ORGANIZATION OF THE COURTS OF THE STATES. IX. THE ORGANIZATION OF THE COURTS OF THE UNITED STATES. X. RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES, AND OF THE UNITED STATES JUDICIARY TO THE STATES. XI. RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES. XII. TRIAL BY JURY. XIII. FORMALITIES IN JUDICIAL PROCEDURE. XIV. TRIAL COURTS FOR CIVIL CAUSES. XV. PROBATE COURTS. XVI. BANKRUPTCY AND INSOLVENCY COURTS. XVII. CRIMINAL PROCEDURE. XVIII. THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT. XIX. APPELLATE COURTS. XX. THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS OF COURT. XXI. JUDICIAL PROCEEDINGS IN TERRITORIES SUBJECT TO MARTIAL LAW. XXII. APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES. XXIII. THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH. XXIV. THE LAW'S DELAYS. XXV. THE ATTITUDE OF THE PEOPLE TOWARDS THE JUDICIARY. INDEX. * * * * * TABLE OF CASES Ableman _v._ Booth Allinson, Hale _v._ American Insurance Co. _v._ Canter Ames _v._ Kansas Ames, Smyth _v._ Andrews, _Ex parte_ Anthes, Commonwealth _v._ Bachert _v._ Lehigh Coal and Navigation Co. Baldwin, Robertson _v._ Bank, Bardes _v._ Bank of Kentucky, Briscoe _v._ Bank of Mississippi _v._ Duncan Bank of the U. S., Osborn _v._ Bardes _v._ Bank Barrows _v._ Bell Batchelder _v._ Moore Baxter _v._ Brooks Baxter, State _v._ Bean _v._ Beckwith Bean, Beckwith _v._ Beckham, Taylor _v._ Beckwith _v._ Bean Beckwith, Bean _v._ Bell, Barrows _v._ Bell's Gap R. R. Co., McCloskey _v._ Bernard, Coggs _v._ Biddle, Green _v._ Bidwell, Downes _v._ Bissell _v._ Dickerson Blacker, Board of Supervisors _v._ Blair _v._ Williams Blake _v._ McClung Board of Supervisors _v._ Blacker Bodley _v._ Gaither Boffman, Hickman _v._ Bonham's case Booth _v._ Clark Booth, Ableman _v._ Borden, Luther _v._ Bowman _v._ Middleton Boyd _v._ Thayer Boyd _v._ U. S. Bradburn, Mincey _v._ Bradley _v._ Fisher Bradley _v._ New Haven Bradley, _Ex parte_ Brainerd, Fitch _v._ Branch, _In re_ Brashears, Lapsley _v._ Briggs _v._ Garrett Brine _v._ Insurance Co. Briscoe _v._ Bank of Kentucky Brooks _v._ State Brooks, Baxter _v._ Brown, Kellogg _v._ Brown, Parkersburg _v._ Bulkley, State _v._ Bull, Calder _v._ Burgess _v._ Seligman Burr's Trial Burrows, Nudd _v._ Bush, Perry _v._ Bushnell, _Ex parte_ Calder _v._ Bull California, Hurtado _v._ Call Publishing Co., Western Union Telegraph Co. _v._ Calvin _v._ Huntley Canfield _v._ Mitchell Canter, American Insurance Co. _v._ Carriere, Tua _v._ Cherokee Nation _v._ Georgia, Chisholm _v._ Georgia Christmas _v._ Russell Church _v._ Pearne City of South Bend _v._ Turner Claflin _v._ Houseman Clark, Booth _v._ Clarke's Appeal Cleveland, Painesville and Eastern R. R. Co., _v._ Pritschau Clymer, Norris _v._ Cochran, Gernon _v._ Coffin _v._ United States Coggs _v._ Bernard Cohens _v._ Virginia Coleman _v._ Tennessee Coler _v._ Tacoma Railway and Power Co. Colt, Stanley _v._ Commonwealth _v._ Anthes Conn. Pipe Mfg. Co., Ward _v._ Consul of Spain _v._ Consul of Great Britain Cooper, Application of Cooper, _In re_ Cooper, In the matter of Copass, Hall-Moody Institute _v._ Croswell, People _v._ Cunningham, State _v._ Danbury, Hoyt _v._ Dartmouth College _v._ Woodward Debs, U. S. _v._ Debs, _In re_ Delaware, Lackawanna and Western R. R. Co., Forepaugh _v._ Demorest, Hutkoff, _v._ Dennison, Kentucky _v._ Deposit Bank _v._ Frankfort Dickerson, Bissell _v._ Diggs _v._ Wolcott Donoghue, Hanley _v._ Dorr _v._ United States Dorrance, Vanhorne's Lessee, _v._ Dougherty, Lanark _v._ Dow _v._ Johnson Downes _v._ Bidwell Dred Scott _v._ Sandford Drehman _v._ Stifle Duncan, Bank of Mississippi _v._ Duncan, Johnson _v._ Dyson _v._ Rhode Island Co. Eakin _v._ Raub Eckrich _v._ St. Louis Transit Co. Ellington, Miel _v._ Erdman _v._ Mitchell Exchange Bank _v._ Rice Farmers' Loan and Trust Co., Pollock _v._ Faulkner _v._ Hart Finney _v._ Guy Fish _v._ Smith Fisher, Bradley _v._ Fitch _v._ Brainerd Fletcher _v._ Peck Flynn _v._ Morgan Forepaugh _v._ Delaware, Lackawanna and Western R. R. Co. Frankfort, Deposit Bank _v._ French _v._ Waterbury Frost _v._ Leighton Gaither, Bodley _v._ Garland, _Ex parte_ Garrett, Briggs _v._ Genesee Chief, The Georgia _v._ Stanton Georgia, Cherokee Nation _v._ Georgia, Chisholm _v._ Georgia, Worcester _v._ Gernon _v._ Cochran Gibbons _v._ Ogden Goshen _v._ Stonington Gould _v._ Hudson River R. R. Co. Grady's case Grapeshot, The Gray, James _v._ Green _v._ Biddle Griffin _v._ Wilcox Griswold, Hepburn _v._ Griswold, United States _v._ Grover & Baker Sewing Machine Co. _v._ Radcliffe Groves _v._ Slaughter Guy, Finney _v._ Hale _v._ Allinson Hall-Moody Institute _v._ Co-pass Ham _v._ McClaws Hanley _v._ Donoghue Hanover National Bank _v._ Moyses Hans _v._ Louisiana Harris, Norris _v._ Hart, Faulkner _v._ Hawes _v._ Oakland Hayburn's Case Hepburn _v._ Griswold Heywood, Wilcox _v._ Hickman _v._ Boffman Hildreth's Heirs _v._ McIntire's Devisee Hill _v._ Smith Hill, Koehler _v._ Hoffman, People _v._ Holmes _v._ Walton Houseman, Claflin _v._ Houser, State _v._ Howle, Metropolitan Life Insurance Co. _v._ Hoyt _v._ Danbury Hudson River R. R. Co., Gould _v._ Huntley, Calvin _v._ Hurtado, _v._ California Hutkoff _v._ Demorest Insurance Co., Brine _v._ International Distillery, Pearson _v._ Irvine _v._ Stone James _v._ Gray Jecker _v._ Montgomery Johnson _v._ Duncan Johnson _v._ People Johnson, Dow _v._ Johnson, Mississippi _v._ Johnson, State _v._ Joint Traffic Association, United States _v._ Judges, State _v._ Kansas, Ames _v._ Katz _v._ Walkinshaw Kellogg _v._ Brown Kellogg _v._ Warmoth Kentucky _v._ Dennison Kentucky, Louisville Ferry Co. _v._ Kepner _v._ U. S. Ketcham _v._ McNamara Kilbourn _v._ Thompson Klein, U. S. _v._ Kneedler _v._ Lane Koehler _v._ Hill Lachenmeyer, Pepin _v._ Lanark _v._ Dougherty La Ninfa, The Lane, Kneedler _v._ Lapsley _v._ Brashears Lee, State _v._ Legal Tender Cases, The Lehigh Coal and Navigation Co., Bachert _v._ Leighton, Frost _v._, Lennon _v._ Rawitzer, Letson, Louisville, Cincinnati and Charleston R. R. Co. _v._, Little Charles, The schooner, U. S. _v._, Loan Association _v._ Topeka, Loomis _v._ Newhali, Lottawanna, The, Louisiana, Hans, _v._, Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson, Louisville Ferry Co. _v._ Kentucky, Luke _v._ Lyde, Luther _v._ Borden, Lyde, Luke _v._ McCardle, _Ex parte_, McClaws, Ham _v._, McCloskey _v._ Bell's Gap R. R. Co., McClung, Blake _v._, McConnaughy, Pennoyer _v._, McCulloch _v._ Maryland, McDaniel, Terry _v._, McDowell _v._ Oyer, McFarland _v._ People, McIntire's Devisee, Hildreth's Heirs _v._, M'Kim _v._ Voorhies, McLeod's Case, McNamara, Ketcham _v._, McVeigh _v._ Ripley Madison, Marbury _v._, Main, State _v._, Marbury _v._ Madison, Maryland, McCulloch _v._, Mather, Rand _v._, Merriman _v._ Social Mfg. Co., Merryman, _Ex parte_, Metropolitan Life Insurance Co. _v._ Howle, Mial _v._ Ellington, Middleton, Bowman _v._, Milligan, _Ex parte_, Miln, New York _v._, Mincey _v._ Bradburn, Mississippi _v._ Johnson, Mitchell, Canfield _v._, Mitchell, Erdman _v._, Montgomery, Jecker _v._, Moore, _Ex parte_, Moore, Batchelder _v._, Morgan, Flynn _v._, Mormon Church _v._ United States, Morrill, State _v._, Moses Taylor, The, Moyses, Hanover National Bank _v._, Mutual Reserve Fund Life Association, Vincent _v._, Myers _v._ South Bethlehem Nash, United States _v._, Neagle, _In re_, Neff, Pennoyer _v._, Newhall, Loomis _v._, New Haven, Bradley _v._, New Jersey _v._ New York, Newman, _Ex parte_, New York _v._ Miln, New York, New Jersey _v._, New York and New England R. R. Co., Rumsey _v._, New York, New Haven and Hartford R. R. Co., Stack _v._, Noble _v._ Union River Logging Co., Norris _v._ Clymer, Norris _v._ Harris, Northern Securities Co. _v._ United States, Norwalk Street Railway Co.'s Appeal Nudd _v._ Burrows Oakland, Hawes _v._ Ogden _v._ Saunders Ogden, Gibbons _v._ Ohio and Mississippi R. R. Co. _v._ Wheeler Olcott, People _v._ Osborn _v._ Bank of the U. 8. Oyer, McDowell _v._ Parkersburg _v._ Brown Patterson, William Paul _v._ Virginia Pearne, Church _v._ Pearson _v._ International Distillery Pease, Starr _v._ Peck, Fletcher _v._ Pennoyer _v._ McConnaughy Pennoyer _v._ Neff Pennsylvania, Prigg _v._ Pennsylvania Coal Co., Sanderson _v._ People _v._ Croswell People _v._ Hoffman People _v._ Olcott People _v._ Webb People, Johnson _v._ People, McFarland _v._ Pepin _v._ Lachenmeyer Perkins, United States _v._ Perry _v._ Bush, Peters, Wheaton _v._ Pollock _v._ Farmers' Loan and Trust Co. Prigg _v._ Pennsylvania Pritschau, Cleveland, Painesville and Eastern R. R. Co. _v._ Radcliffe, Grover & Baker Sewing Machine Co. _v._ Rand _v._ Mather Raub, Eakin _v._ Rawitzer, Lennon _v._ Reese, United States _v._ Regents _v._ Williams Rhode Island Co., Dyson _v._ Rice, Exchange Bank _v._ Rich, Upshur County _v._ Ripley, McVeigh _v._ Robbins' Case Robertson _v._ Baldwin Robinson, _Ex parte_ Royall, _Ex parte_ Rumsey _v._ New York and New England R. R. Co. Russell, Christmas _v._ Rutgers _v._ Waddington Sanderson _v._ Penn. Coal Co. Sandford, Dred Scott _v._ Saunders, Ogden _v._ Scott _v._ Sandford Seligman, Burgess _v._ Shepherd, State _v._ Sheve, U. S. _v._ Siebold, _Ex parte_ Sims' Case Slaughter, Groves _v._ Smith, Fish _v._ Smith, Hill _v._ Smith, U. S. _v._ Smyth _v._ Ames Social Mfg. Co., Merriman _v._ South Bethlehem, Myers _v._ Sparf _v._ U. S. St. Louis Transit Co., Eckrich _v._ Stack _v._ New York, New Haven and Hartford R. R. Co. Stanley _v._ Colt Stanley, U. S. _v._ Stanton, Georgia _v._ Starr _v._ Pease State _v._ Baxter State _v._ Bulkley State _v._ Cunningham State _v._ Houser State _v._ Johnson State _v._ Judges State _v._ Lee State _v._ Main State _v._ Morrill State _v._ Shepherd State _v._ Travelers' Insurance Co. State _v._ Ward State _v._ Worden State, Brooks _v._ Stephens, petitioner Stifle, Drehman _v._ Stone, Irvine _v._ Stonington, Goshen _v._ Swift _v._ Tyson Tacoma Railway and Power Co., Coler _v._ Tassel's Case Taylor _v._ Beckham Tennessee, Coleman _v._ Terry _v._ McDaniel Thayer, Boyd _v._ The Genesee Chief The Grapeshot The La Ninfa The Lottawanna The Moses Taylor The Schooner Little Charles, U. S. _v._ The Thomas Jefferson Thomas Jefferson, The Thompson, Kilbourn _v._ Topeka, Loan Association _v._ Trademark Cases Travelers' Insurance Co., State _v._ Trevett _v._ Weeden Tua _v._ Carriere Turner, City of South Bend _v._ Tyson, Swift _v._ Union River Logging Co., Noble, _v._ United States _v._ Debs United States _v._ Griswold United States _v._ Joint Traffic Association United States _v._ Klein United States _v._ Nash United States _v._ Perkins United States _v._ The Schooner Little Charles United States _v._ Reese United States _v._ Robbins United States _v._ Sheve United States _v._ Smith United States _v._ Sparf United States _v._ Stanley United States _v._ Wilson United States _v._ Worrall United States, Boyd _v._ United States, Coffin _v._ United States, Dorr _v._ United States, Kepner _v._ United States, Mormon Church _v._ United States, Northern Securities Co. _v._ Upshur County _v._ Rich Vanhorne's lessee _v._ Dorrance Vincent _v._ Mutual Reserve Fund Life Association Virginia, Cohens _v._ Virginia, Paul _v._ Voorhies, M'Kim _v._ Waddington, Rutgers _v._ Walkinshaw, Katz _v._ Walton, Holmes _v._ Ward _v._ Conn. Pipe Mfg. Co., Ward, State _v._, Warmoth, Kellogg _v._, Waterbury, French _v._, Webb, People _v._, Weeden, Trevett _v._, Western Union Telegraph Co. v. Call Publishing Co., Wheaton v. Peters, Wheeler, Ohio and Mississippi R. R. Co., _v._, Wheeler's Appeal, Wilcox v. Heywood, Wilcox, Griffin _v._, Williams, Blair _v._, Williams, Regents _v._, Wilson, U. S. _v._, Wolcott, Diggs _v._, Woodward, Dartmouth College, _v._, Worcester v. Georgia, Worden, State _v._, Worrall, U. S. _v._ Additional cases cited in Second edition. Janvrin v. Revere Water Co., Revere Water Co., Janvrin, _v._, O'Brien's Petition, Seery v. Waterbury, Waterbury, Seery _v._ * * * * * PART I THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES * * * * * CHAPTER I ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. It must be permanent in its character. Only what is permanent will have the confidence of the people. It must always be ready to act on the instant. The unexpected is continually happening, and it is emergencies that put governments to the test. The judiciary holds this position in the United States. The institutions which underlie and characterize it, both of the United States and of each of the States, considered by itself,[Footnote: I do not except Louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen English colonies on the Atlantic coast, which declared their independence in 1776. The colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for Englishmen, based on the common law of the English people. So far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of England. The proviso to this effect in the roving patent given by Queen Elizabeth to Sir Walter Raleigh may be taken as a type: "so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of England."[Footnote: Poore, "Charters and Constitutions," II, 1381.] In the Southern New England colonies, when first settled, the common law of England was disowned. They made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the Bible. Connecticut continued to insist on this view, with general consistency, until the days of the Stamp Act, when it became the interest of her people to claim the benefit of the principles of the English constitution and of the common law, on which it was built up.[Footnote: Colonial Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._ citations by D. Davenport, _arguendo,_ in Flynn _v._ Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State archives.] In early Massachusetts the written pleadings often referred to the Bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[Footnote: Publications of the Colonial Society of Mass., III, 324.] As was anticipated in the Raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. These the colonists were, in the main, left free to make at their pleasure. Much of this work came to be done by their legislative assemblies; more by their courts. The assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent. The assemblies, however, were themselves courts. At first they kept in their own hands a large share of judicial power. They acted as the early parliaments of England had acted, both as a legislature and a judicial tribunal. In several colonies they long kept to themselves the right of deciding private controversies on equitable principles. They sat as a court of review, to grant new trials or review judgments. They passed acts of attainder. They settled insolvent estates.[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 314.] This mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. As the Roman plebeian, in the days before the Twelve Tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. In the colony of New Haven a code was early framed; but there they built on a written law--the Bible.[Footnote: New Haven Colony Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one. Winthrop, writing in 1639, describes it with his usual clearness and discrimination thus: "The people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of magistrates.... Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arise _pro re nata_ upon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs, consuetudines. 2. For that it would professedly transgress the limits of our charter, which provide we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression."[Footnote: Winthrop, "History of New England," I, 322.] The tendency toward partial codification proved too strong to be resisted, and all the colonies soon had a substantial body of written law published in official form. The exercise of judicial power by colonial legislatures was steadily contracting throughout the century preceding the Revolution. Where there were Governors appointed by the crown, they discouraged it. The courts were correspondingly strengthened. Law became better understood and more wisely applied. A large body of local statute law had grown up by 1750, much of it already venerable by antiquity, and intimately interwoven with the life of the people. Its form and color differed in different colonies. Religious views and preferences had had a large effect in shaping it. So had influences proceeding from the civil war, the Commonwealth, and the Restoration. Yet at bottom there was the same substructure in Virginia as in Massachusetts, in Pennsylvania as in New York. It was the common law of England as it existed in the days of the last of the Tudor and first of the Stuart reigns. This had been built into the foundations of American institutions and kept firm in place, not only because the colonists were habituated to it[Footnote: Fitch _v._ Brainerd, 2 Day's (Conn.) Reports, 163, 189.] and themselves both English subjects and the descendants of Englishmen of those days, but largely by force of the British system of colonial government through the Lords of Trade and Plantations. The ancient _aula regis_, in which the king dispensed justice at first hand, had survived in another form in the tribunal known as the King in Council. This, so far as the colonies were concerned, was represented by a standing committee of the Privy Council. It was substantially the same thing as the Court of Star Chamber, but since 1640 without the extraordinary penal jurisdiction which gave that so evil a reputation for Americans.[Footnote: Maitland, "Justice and Police," 5.] This committee was after this restriction of its powers known as the Lords of Trade and Plantations,[Footnote: It was afterward and is now called the Judicial Committee of the Privy Council.] and by its authority from the time when England first had colonies of any commercial importance (and those in America were the first) their statutes could be set aside and the judgments of their courts, when of any considerable magnitude and importance, reversed.[Footnote: See Paper on Appeals to the Lords of Trade from Colonial Courts, by Harold D. Hazeltine, Report of the American Historical Association for 1894, 299.] This revisory jurisdiction, though questioned and occasionally evaded or thwarted by the colonial governments, became solidly established long before the Revolution.[Footnote: "Two Centuries' Growth of American Law," 12, 18, 264.] In but one case did a colonial court formally ignore a judgment of reversal. This was in 1738, when the Superior Court of Judicature of Massachusetts, at its sittings in York County, in what is now the State of Maine, disobeyed an order of the King in Council made on appeal from one of its judgments, and when it was repeated a year later, adhered to its original position.[Footnote: Frost _v._ Leighton, Publications of the Colonial Society of Massachusetts, III, 246.] The amount involved was trifling, and the Lords of Trade and Plantations made no further effort to enforce their order. The natural effect of this court of appeal at London was to keep the public proceedings of the colonies in line with the common law of England, so far as related to its fundamental principles. A certain uniformity of result was thus secured. American law, in its substantial framework, was not allowed to vary from English law in any case where agreement was reasonably practicable. There was a central power at London ever ready to enforce the charter rule. The colonial courts, if their judgments were to stand, must proceed in conformity to the British constitution. Justice must be administered by due course of law, and to find out what that due course was the judges were forced to study the English law-books. When Blackstone's Commentaries were first published, more copies were sold in America than in England.[Footnote: "Two Centuries' Growth of American Law," 20.] The colonial bench was weaker than the colonial bar. Judicial station was at first always, and later often, a mere incident of political office. When judges were appointed whose functions were wholly judicial, their selection was largely dictated by political considerations or executive favor. Few of them were really learned in the law. Of the bar many were. That of Massachusetts did not conceal its disapprobation when Lieutenant-Governor Hutchinson, although he had never been a member of it, was appointed Chief Justice in 1760. None of the judges of the first Superior Court in that colony were lawyers.[Footnote: Winsor, "Narrative and Critical History of America," V, 166.] In some of the others the Governor was the Chancellor, and in Maryland he was at one time the Chief Justice also.[Footnote: Steiner, "Maryland's First Courts," Reports of American Historical Association for 1901, 211; Osgood, "The American Colonies in the Seventeenth Century," I, Chap. II; II, Chap. XII.] In several the judges were appointed during the king's pleasure, and the Governor removed them at his discretion, without any notice or hearing.[Footnote: Bancroft, "History of the United States," II, 279. A notable instance of a removal in consequence in part, at least, of a decision as to the royal prerogative, not relished by the Governor, was the case of Chief Justice Lewis Morris of New York, in 1733. Documents relating to the Colonial History of New York, V, 948; VI, 4, 8, 951.] In those colonies which were provided by charter with a Court of Assistants, this body soon came to act as a judicial court. This took place in the colony of Massachusetts Bay as soon as the seat of the company's government was transferred from England to America, and took place as a matter of course. Divisional courts were frequently held by part of the assistants, with original jurisdiction of minor causes, and all sat semi-annually, or oftener, to try larger ones and hear appeals.[Footnote: Noble, "Records of the Court of Assistants of Massachusetts Bay," I, Preface; Publications of the Colonial Society of Massachusetts, III, 317.] In Connecticut, appellate jurisdiction was originally retained by the General Assembly, but when the docket became too crowded, resort was occasionally had to the appointment of a special and temporary commission of appeals to clear it off. As early as 1719, one was constituted for this purpose to hold office for two years. No colony set up a permanent supreme court with full appellate jurisdiction. None probably cared to do this, and none probably thought that it could. The Lords of Trade and Plantations would have rightly thought such a step hardly consistent with the maintenance of their revisory and controlling powers. It would have been too costly to allow two appeals; and for them to reverse a judgment of a colonial supreme court would have been more distasteful to Americans than the exercise of a similar power as to a court professedly of superior, not supreme, jurisdiction. New York had a court named Supreme, but its business was largely the trial of original causes, and the Governor and Council claimed the right of reviewing its judgments. The judges in 1765 denied the existence of such a right, but the King in Council decided against them.[Footnote: Hunt, "Life of Edward Livingston," 26.] As soon as regular judges, not members of other departments of the government, were appointed for the highest court, they were generally required to perform circuit duty in the various counties during part of each year.[Footnote: See "Am. Hist. Review," III, 44.] This was a leading feature of the judicial establishment set up in 1686 under Sir Edmund Andros for the "Dominion of New England."[Footnote: Col. Rec. of Conn., III, 402, 411.] South Carolina, for a hundred years, centered all her judicial business at Charleston. No courts sat anywhere else and all the lawyers in the State resided in the city. In the latter part of the eighteenth century she followed the other colonies in establishing a circuit system and county courts.[Footnote: Morse, "American Universal Geography," ed. 1796, 690; Osgood, "The American Colonies in the Seventeenth Century," II, 279, 300.] There was occasionally some little approach to English form when the colonial judges went on the circuit. In Massachusetts the sheriff or his deputy was accustomed to come out from the court town to meet the judges as they approached it, to open a term of court.[Footnote: "Life and Works of John Adams," II, 280. See Chap. XIII.] Acts of Parliament directly affecting procedure in American courts, and unifying its methods in some particulars, were occasionally passed during the colonial era. Such was the Act of 1732 (V, Geo. II, Chap. VII), making affidavits taken in England admissible in any suit in an American colony to which an Englishman might be a party, and providing that all American real estate (including negro slaves employed upon it) should be subject to be levied on for any debts of the owner, although real estate in England could only be taken for debts of a particular kind.[Footnote: Connecticut promptly passed a statute extending the new remedy thus given, so as to authorize the sale of land belonging to the estate of a deceased person, to pay his debts, if he did not leave sufficient personal estate for that purpose. Col. Rec. of Conn., VII, 444.] Other English statutes, passed after the settlement of the colonies, and not in terms applying to them, were often adopted here, either by the enactment of colonial statutes to the same effect or by incorporation into our common law by tacit consent, as interpreted by the courts.[Footnote: State _v._ Ward, 43 Connecticut Reports, 489, 494.] The benefit of the writ of _habeas corpus_, which, though issuable at common law, really first took its present shape in 1679, by the Act of 31 Charles II, Chap. II, was thought in this country, though not by the Lords of Trade and Plantations, to be a privilege of Americans, as British subjects. In some colonies this statute was re-enacted, or, as in Virginia, rights under it conceded under the royal prerogative. In others, as in Maryland, it was treated as being, by tacit adoption, the birthright of the inhabitants. In the "Declaration and Resolves" of the first Continental Congress, they assert "that the respective colonies are entitled to the Common Law of England," and in the address to the people of Great Britain they complain that the English settlers in Canada "are now the subjects of an arbitrary Government, deprived of Trial by Jury, and when imprisoned cannot claim the Benefit of the _Habeas Corpus_ Act, that great Bulwark and Palladium of English Liberty."[Footnote: Journals of Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the Colonies," American Historical Review, VIII, 18.] The same sentiments dictated the terms of the Ordinance of 1787, under which our first Territories were to be organized. One of its leading provisions was this: ART. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. A recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the Revolution. It might fairly be called American, but it was thoroughly English by heredity, and had been shaped by a long succession of English influences, and steadied by the firm hand of English power. The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812. Several of the States, New Jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the English courts made since the Declaration of Independence. Under one of these Henry Clay, in 1808, was stopped by the Supreme Court of Kentucky when reading in argument from an opinion of Lord Ellenborough;[Footnote: Hickman _v._ Boffman, Hardin's Rep., 348, 364.] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436 (1799); Morehead and Brown, "Digest of the Statutes of Kentucky," I, 613 (1807).] In courts held by unlearned judges, also, English law-books were lightly considered. One of this kind was Chief Justice Livermore, of New Hampshire. Shortly after the close of the Revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not "understand the principles of justice as well as the old wigged lawyers of the dark ages did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.] But whether cited or not from their original sources, the settled doctrines of English law were sure in the end to permeate both bar and bench in every State. The Roman law and the law of nations were studied in preparation for admission to the American bar more generally and more thoroughly in the years immediately preceding and following the Revolutionary era than they have been since.[Footnote: See Chap. XXIII.] The law student was also set then to reading more books on English law than he is now.[Footnote: See Report of the American Bar Association for 1903, p. 675.] He learned his profession by the eye and not by the ear. His only lectures were the occasional arguments on a demurrer or writ of error which he might hear in the court room, and these were a reiteration of rules laid down in English law-books. The reason why he read more of Roman law than is now required in legal education was mainly that there was more time for it, since of English law reports there were then few, and of American none. When the Revolution broke out it also became important in helping to explain the practice in prize courts. These were set up (or existing common law courts invested with admiralty jurisdiction) in all the States, and American privateers gave them not a little business. In order to secure uniformity of decision in matters so directly affecting our foreign relations, the Continental Congress claimed the right to exercise appellate functions, through a standing committee of its members, and in 1780 organized a formal court for the purpose, styled "The Court of Appeals in Cases of Capture." Three judges were appointed and provided with a register and seal. They held terms at Hartford, New York, Philadelphia and Richmond during the next six years. On an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[Footnote: See Jameson, "Essays on the Constitutional History of the United States," I; J. C. Bancroft Davis, "Federal Courts Prior to the Adoption of the Constitution," 131 United States Reports, Appendix, XIX.] The influence of French ideas was strong in shaping constructive work in American politics, as the colonies passed into States; but aside from the separation of the judicial department from the executive and legislative it had little effect upon the courts until the opening of the nineteenth century. Then the principles of the Roman law, particularly as presented and illustrated by the French jurists, were seized upon by Kent and Story, and served greatly to expand and enrich our jurisprudence.[Footnote: "Memoirs and Letters of James Kent," 117.] The course of events which has been sketched left certain ideas in regard to the position and powers of the judiciary with respect to the other branches of the government firmly imbedded in the American mind. These may be thus summarized: Judges were to proceed according to established rules, so far as established rules might exist. They were to proceed in analogy to established rules as to points which no established rule might cover. They were to look to the common law and political institutions of England to determine what rules were established, as to points not covered by local usage or legislation. Local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of England. There were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority. This higher authority might be judicial or political, or one which shared both judicial and political functions. * * * * * CHAPTER II THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS From the colonial system of legislatures by which all the powers of government were at times exercised to the modern American State, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step. So far as the United States were concerned, the weakness of the government under the Articles of Confederation had been universally acknowledged and was generally thought to come in part from throwing whatever powers the States had granted, in a mass, into the hands of the Continental Congress. Nevertheless, the Constitution of the United States is not framed upon the principles of a strict tripartite division. It places the executive power in the hands of the President, all the legislative powers which were granted by it in Congress, and the judicial power in certain courts; but it does not follow the earlier State Constitutions in declaring that whatever was vested in either of these three depositaries was and must always be different in kind from that vested in any other of them. On this point Virginia set the fashion, but the sonorous phrase of the Massachusetts Constitution of 1780 is the most familiar, in its declaration (Part the First, Art. XXX) that "in the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."[Footnote: The last declaration of purpose was taken from Harrington's _Oceana_, in which it is said that while a monarchy is an empire of men, "a commonwealth is an empire of laws and not of men." Works, London ed., 35, 42, 224.] It was from an unwillingness to commit themselves to such a principle that the people of Connecticut and Rhode Island preferred for many years to be governed in the old way by their legislatures, without a written constitution. During this period, the General Assembly of Connecticut repeatedly exercised the power of setting aside judgments of courts, and its right to do so was sustained by the Supreme Court of the United States.[Footnote: Calder _v._ Bull, 2 Root's Reports, 350; 3 Dallas' Reports, 386.] The courts of the United States were called upon at an early day to determine how far Congress could invest them with functions that were not judicial or not to be performed in a judicial manner. An act was passed requiring the Circuit Courts to pass upon claims for invalid pensions, their decisions to be subject to review by Congress. The performance of this duty was declined, and the attempt to put a judgment of a court under the control of the legislature made the refusal so plainly proper that the act was repealed at the next session.[Footnote: Hayburn's Case, 2 Dallas' Reports, 409.] It was easier for the United States to maintain from the first this general scheme for the division of power than for the early States. Their people had grown up under too different a plan of government. It had become so familiar to them that they could hardly believe that it had been abolished. Tradition for them interpreted their new Constitutions and overmastered them. The State legislatures therefore continued for a time to claim some control over the judiciary, or at least a right to criticise and censure its doings.[Footnote: See Chap. VII.] In many of our State Constitutions, after providing for a distribution of powers between three separate departments, instead of absolutely prohibiting any of them from exercising any power properly belonging to either of the others, it is declared that this shall not be done, except as may be expressly allowed in subsequent articles. Such a declaration was proposed in the draft of the Constitution of Connecticut, reported to the convention which framed it in 1818; but on objection it was struck out.[Footnote: Journal of the Constitutional Convention of Connecticut, pp. 78, 55.] It was thought better to leave the relations of the departments to each other to be worked out in practice, and for nearly eighty years afterward the legislature continued to exercise some judicial power. It sometimes gave equitable relief to carry out a charitable purpose in a will, which would otherwise fail. It interfered repeatedly in probate proceedings. It released sureties in judicial recognizances. It set aside judgments. [Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315; Stanley _v._ Colt, 5 Wallace's Reports, 119.] A decision of the Supreme Court of Errors sanctioned the practice;[Footnote: Starr _v._ Pease, 8 Conn. Reports, 541, 547.] but in 1898 the court overruled its former opinion, and held that as the three departments were made separate and distinct, it needed no express constitutional declaration to prevent either from invading the province of the other, and so that no power not judicial in its nature could be conferred upon the courts.[Footnote: Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080.] But may not a power be judicial in its nature and yet not wholly so? It is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions. Courts, for instance, make rules of practice. In one sense this is a judicial act, because it is one appropriate for the judiciary. In another point of view it is an act of legislation. In nothing does it resemble the act of judging a litigated cause. Impeachments are both political and judicial proceedings, but American constitutions leave them wholly to the legislative department. Franchises to exist as an artificial person are the proper subjects of legislative grant, but with the growing insistence in our Constitutions on absolute equality of right, they are now almost everywhere given only by general laws. Such a law will offer incorporation for certain purposes to any who choose to avail themselves of the privilege by fulfilling certain conditions and filing certain papers in a public office. But what shall be the nature of this office, and who shall decide whether these conditions have been fulfilled and these papers filed? The legislature may select an executive, a legislative, or a judicial office. It may entrust this power of decision to an executive, a legislative, or a judicial officer. It has, in fact, in some States, entrusted it to a court, and authorized it, if it decided in favor of those claiming incorporation, not only to record the decision, but to issue the paper which shows that they are entitled to possess and enjoy the franchise. It is safe to assert that in no State are the functions of the courts purely judicial. Many belonging to the administration of the methods of political government are in all intrusted to judicial officers either originally or by way of review. Some of these concern such matters of internal police, as the enforcement of laws to preserve the public health or to regulate the sale of intoxicating liquors, and the establishment and repair of highways.[Footnote: Application of Cooper, 22 New York Reports, 67, 82, 84; Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley _v._ New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter, 960; Upshur County _v._ Rich, 135 U. S. Reports, 467, 477; Janvrin _v._ Revere Water Co., 174 Mass. Rep. 514; 55 North Eastern Rep. 381.] Instead of creating a system of bureaus and prefects, we have adhered to the English plan of administering local and county concerns through justices of the peace, courts of quarter-sessions, and county or parish courts.[Footnote: See Maitland, "Justice and Police," 85.] Of the affairs committed to such authorities some pertain to the conduct of elections, and courts are frequently empowered to appoint election officers or clerks, because it is felt that thus a wise impartiality in selection can best be attained.[Footnote: People _v._ Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596; 56 American Reports, 793; _Ex parte_ Siebold, 100 U. S. Reports, 371, 397.] It is vital to the proper working of government under a written constitution that these constitutional restrictions on the powers of the courts should not be too strictly interpreted. Every step in the progress of civilization makes this the more obvious. No absolute trinity of governmental form can be maintained in human society, as the relations of each individual to his fellows, and of the State to all, become, and necessarily become, more numerous and complicated. In every State that department which in practice proves the strongest will push its jurisdiction furthest. It may be said, in view of its now established power to decide between higher and lower forms of law,[Footnote: See Chap. VII.] that the judiciary has proved the strongest. The legislature, as has been stated, have found it a convenient depositary of many quasi-legislative and quasi-executive functions, and this also has largely increased its power. The theory of the French philosophers that all the powers of government could be divided into three parts, each bearing a name descriptive only of itself, is not supported by the practical experience of Americans. There are functions that might as well be assigned to one of these parts as to another, or made into a fourth and called administrative.[Footnote: Under authority of her present Constitution, Virginia in 1904 organized a State Commission for the Supervision of Corporations, which has both judicial and administrative functions.] The Constitution of the United States recognizes this in effect. It makes the Senate an executive council, as well as a legislative chamber. It allows Congress to vest the appointment of any inferior officers in the courts (Art. II, Sec. 3). In practice this power has been freely used. The Supreme Court of the United States has had occasion to consider this question in connection with the statutes defining the jurisdiction of the Circuit Courts. It extends to certain "suits." But what is a suit? It is not necessarily a proceeding at common law or in equity or admiralty. It may be a statutory process. "Even," they say, "an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of Congress."[Footnote: Upshur County _v._ Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding by the government to take land for public use on payment of due compensation, they observe that "the general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of Congress."[Footnote: _Ibid_., 475.] In one point of considerable importance express constitutional provisions generally narrow the jurisdiction of American, as compared with English courts. Each house of the legislature is made the final judge of the returns and qualifications of its members. In England, election contests as to a seat in the House of Commons has been made by Act of Parliament the subject of judicial determination. This avoids partizan decisions and is so far good. It diminishes, however, the independence of the legislative house in which the seat is contested. This is jealously guarded by our traditions as well as our Constitutions. The practice of wearing hats during the sessions of the House of Commons was an expression of the early feeling of the English Commons on this subject. They would not uncover before speaker or king. In some of the early American legislatures the same thing was done. Hats were occasionally worn in the House of Representatives at Washington as late as the second quarter of the nineteenth century.[Footnote: Hunt, "Life of Edward Livingston," 301. They were worn in the Continental Congress on occasions of ceremony. McMaster, "History of the People of the United States," I, 105.] On the other hand, American courts interfere more readily than the English to protect a citizen from arrest by legislative authority. Each house of the British parliament has large inherited powers over those who may treat it with contempt. Each house of an American legislature has some powers of this description, but they are far narrower ones.[Footnote: Kilbourn _v._ Thompson, 103 U. S. Reports, 168.] * * * * * CHAPTER III THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT Courts of Claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[Footnote: One exists for the United States; and one for New York.] The system of administrative law prevailing on the Continent of Europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here. If the Secretary of War of the United States should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. So may even the President of the United States be sued after the expiration of his term. The President, while President, however, cannot be compelled to obey a summons to appear in court. The country cannot spare him to go here and there in obedience to a writ. Chief Justice Marshall issued one against President Jefferson, directing him to appear at the trial of Aaron Burr and bring with him a certain paper. Jefferson declined to obey, and there was no attempt to enforce the subpoena. Had there been, it would have been found that he had taken measures for his protection.[Footnote: Thayer, "John Marshall," 79.] Marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. This admission is now generally thought by the legal profession to have been ill-advised. If the President could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the United States. But while there is nothing like an administrative court for the disposition of causes against individuals in the United States, considered as a collection of States or of people within those States, more freedom has been used by Congress in providing for the Territories. This has been conspicuously the case in regard to the Philippines. By the Act of Congress of July 1, 1902, they were left under the supervision of the War Department, in which there was constituted a "Bureau of Insular Affairs," the business assigned to which "shall embrace all matters pertaining to civil government in the island possessions of the United States subject to the jurisdiction of the War Department; and the Secretary of War is hereby authorized to detail an officer of the army whom he may consider especially well qualified to act under the authority of the Secretary of War as the Chief of said Bureau." The officer filling the position of chief published in 1904 this account of the practical working of the provisions made for the disposition of matters of legal controversy occurring on the islands: "The establishment of a judicial system in the Philippines affords a means for the adjudication of litigated questions between the inhabitants and of many questions respecting the jurisdiction and authority of officials of that government. Whenever possible, controversies are referred to those tribunals. In some instances questions have arisen affecting the action or authority of officers of the executive department of that government in matters controlled by the discretion of the administrative branch and affecting the administration of civil affairs. These questions are considered and determined by the War Department, upon investigation and report by the law officer."[Footnote: _National Geographic Magazine_ for June, 1904, p. 251.] Under our American constitutional system, the only courts of an administrative or political nature for calling public officers directly to account for a breach of public duty are our courts of impeachment. These act only occasionally, and when specially convened for the purpose of hearing charges against a particular individual. They do not grant relief to any party injured by the wrongful acts which are the subject of the accusation. They sit only to punish the public wrong. In constituting courts of impeachment, the control of the cause is generally given to officers of the legislative department, but judicial officers are often joined with them. Such a tribunal was long maintained in New York, of which the senators formed the majority, but in which the chancellor and judges of the Supreme Court also sat. The first Constitution of South Carolina, adopted in 1778, contained a similar provision (Art. XXIII). In most States the Senate alone constitutes the court for trying impeachments, but should the Governor be thus brought before them, the Chief Justice is added to it, and presides. A similar provision is contained in the Constitution of the United States as respects the President. The main reason for putting such a proceeding under judicial direction is to avoid giving the second in rank of the executive magistracy, whose function it generally is to preside over the Senate, a position of authority over his chief, in a proceeding which, if successful, would put him in his place. It also, of course, tends to promote a trial in accordance with all the rules of law. The court in such a proceeding cannot be regarded as fully organized until the Chief Justice is present. It is then first competent to prescribe the rules to govern it during the progress of the cause. This was the ruling of Chief Justice Chase on the impeachment of President Johnson, which was tacitly acquiesced in by the Senate. New York originally not only gave her legislature a share in judicial power, but her judges a share in that of legislation. Her Constitution of 1777 provided for a council of revision, consisting of the Governor, the Chancellor, and the judges of the Supreme Court, to whom all bills which passed the Senate and Assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill should become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless re-passed by a vote of two-thirds of the members of each house. For forty years this remained the law, and the Council of Revision contained from time to time judges of great ability, Chancellor Kent being one. During this period 6,590 bills in all were passed. One hundred and twenty-eight of them were returned by the Council with their objections, and only seventeen of these received the two-thirds vote necessary to re-enact them.[Footnote: Poore, "Charters and Constitutions," II, 1332, 1333, note.] An obvious objection to this method of legislation is that the judges who, as members of a council of revision, find nothing objectionable in a bill presented for their scrutiny, must naturally have a certain pride of opinion to conquer before, should its constitutionality become afterward the subject of litigation before them, they could be in a frame of mind to render an unprejudiced judgment. One of the bills which came under the eye of Chancellor Kent as a member of the Council was afterward the source of controversy before him in court. He adhered to his original views, but was overruled by the Supreme Court of the United States. Chief Justice Marshall gave the opinion, and half apologetically alluded to this circumstance in these words: The State of New York maintains the constitutionality of these laws; and their legislature, their council of revision, and their judges, have repeatedly concurred in this opinion. It is supported by great names--by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them, with that independence which the people of the United States expect from this department of the government.[Footnote: Gibbons _v._ Ogden, 9 Wheaton's Reports, 1.] A device for obtaining the same end--the views of the judges in advance of the enactment of a law--in a different way, has been from the first quite common. This is for the legislature to ask them specially for their opinion as to the constitutionality of a bill before it is put upon its passage. An analogous practice has always obtained in England, and was followed in several of the colonies. Some of our State Constitutions expressly authorize such proceedings. In the absence of such authority, the judges can properly decline to comply with the request. It always asks them to prejudge a question which may later come before them in court, and to prejudge it without hearing any of the parties whom it may affect injuriously.[Footnote: See the Reply of the Judges of the Supreme Court of the General Assembly, 33 Conn. Reports, 586.] President Washington, in 1793, brought a matter of this kind before the justices of the Supreme Court of the United States. It was during the controversy with M. Genet, the French minister, as to his right to refit a captured English merchantman as a privateer at an American port, and then send her out for a cruise. By the advice of his Cabinet, the President asked the justices a series of questions comprehending all the subjects of difference as to the proper exposition of the provisions of our treaties with France under which her minister made claim. They replied that they deemed it improper to enter the field of politics by declaring their opinions on questions not growing out of some case actually before them.[Footnote: Marshall, "Life of Washington," V, 433, 441.] No further request of this kind has since been made by any of the political departments to a court of the United States, except such as have been addressed to the Court of Claims. Idaho, in her Constitution (Art. V, Sec. 25), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. The judges of her trial courts are annually to report to those of her Supreme Court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the Governor such defects and omissions, both in the Constitution and in the laws, as they may find to exist. The duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the Constitution, and by the decision indirectly to affect legislation, is treated of elsewhere.[Footnote: Chap. VII.] The courts of the United States, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. If they have a treaty to construe, any construction of it as to the point in question already given by the State Department will be followed, unless plainly wrong. If it becomes material to determine whether a certain country is subject to a certain power, and the President of the United States has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the United States), his action will be accepted as conclusive. His proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the United States.[Footnote: Luther _v._ Borden, 7 Howard's Reports, 1.] When questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the Department of State. It will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts. So an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[Footnote: Gernon _v._ Cochran, Bee's Reports, 209.] In prize cases, which must all be brought before the District Court, an appeal is allowed directly to the Supreme Court of the United States, although the judgments of the District Court generally are reviewable only in an intermediate court. This secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the United States. But there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. They may even to a greater extent affect our relations to foreign governments. How far can the courts, in dealing with these, govern their action by that of the executive? This question came up for decision shortly after the adoption of the Constitution. Great Britain and Spain were at war. A British man-of-war brought a Spanish felucca into Charleston, claiming her as a prize, and she was advertised for sale. No proceedings to have her adjudicated a lawful prize had been taken before any court. The Spanish consul applied to the Circuit Court for an injunction against the sale, claiming that for the United States to permit it would be a breach of neutrality and contrary to the law of nations. The British consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of Congress on the subject, except by the President. The Chief Justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the United States; that it was a matter proper to be dealt with by the President; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the President.[Footnote: Consul of Spain _v._ Consul of Great Britain, Bee's Reports, 263.] Here, therefore, an act which might have been a _casus belli_ was stayed by a court until and unless the Executive should intervene and permit it. The extradition of criminals under a treaty on the demand of a foreign government presents a debatable ground in respect to the subject now under consideration. The surrender is an executive proceeding and a political act. But the laws may provide for a preliminary inquiry before a court into the propriety of complying with the demand. They certainly provide for a judicial proceeding by writ of _habeas corpus_ to release any one arrested in such a proceeding if held without due cause. Is the court before which either of these proceedings may be had at liberty to receive advice or submit to instructions from the President of the United States? This question stirred the country to its depths in 1799. Great Britain applied to our government for the extradition of a seaman who claimed to be an American citizen and was charged with committing murder on a British man-of-war. He was arrested in South Carolina, under a warrant from the District Judge, and lodged in jail. There was a treaty of extradition between the two powers covering cases of murder, but no particular machinery had been provided for regulating the surrender. The British consul asked the judge who had made the commitment to order his delivery to him. The judge doubted his power to do so. Thereupon the Secretary of State, by authority of the President, wrote him that the President advised and requested him to make the surrender, if satisfied with the proofs of criminality, as he (the President) was of opinion that any crime committed on a man-of-war was committed within the territory of the power to which it belonged. The judge complied with this request, after a public hearing on a writ of _habeas corpus_, under which he ordered the man in question to be brought before him, and in the course of it this letter was shown to counsel on both sides. The surrender became at once the subject of heated debates in Congress, but the President's course was ably and conclusively defended by Marshall on the floor of the House,[Footnote: United States _v._ Nash _alias_ Robins, Bee's Reports, 266; Robbins' Case, Wharton's State Trials, 392.] and the course pursued has since been followed in substance by our extradition statutes.[Footnote: United States Revised Statutes, Secs. 5270, 5272.] These provide for a hearing of a judicial character, and then, if that results in a determination that a surrender should be made, it may be ordered on a warrant from the State Department. On the other hand, the peculiar provision of the Constitution of the United States which makes treaties the supreme law of the land calls upon the courts to enforce them according to whatever interpretation they may conclude to give them, even if it should differ from that adopted by the President or the State Department. If a treaty prescribes a rule by which the rights of private individuals are to be determined, and those rights are such as can be appropriately made the subject of a lawsuit, the court before which it may be brought has as full authority to construe the treaty as it would have to construe an act of Congress, were the matter in controversy one of a statutory nature. They cannot be appropriately made the subject of a lawsuit so long as the questions involved are under active consideration in the course of diplomatic negotiation and pending for decision before the President. Let him, however, once make his decision and the doors of the court fly open. These principles are well illustrated by some incidents of our controversy with Great Britain over the seal fisheries in Behring Sea. There was a serious dispute between the two governments as to the limits of our jurisdiction over the waters adjacent to Alaska. We maintained that it ran to the middle of Behring's Straits and from the meridian of 172° to that of 193° west longitude. Great Britain contended for the three-mile limit. Pending diplomatic negotiations as to this point, one of our revenue cruisers seized a Canadian vessel which was engaged in seal fishing nearly sixty miles from the Alaskan coast, and she was condemned, on a libel by the United States, by an admiralty court in Alaska. The owner in 1891 applied to the Supreme Court of the United States for a writ to prohibit the enforcement of this decree of confiscation. The Attorney-General of Canada filed in this suit papers in aid of the application, stating that he did so with the knowledge and approval of the imperial government, and that he would be represented by counsel employed by the British minister resident. The writ was refused on technical grounds, but the court, through Chief Justice Fuller, made these observations as to the merits of the cause: In this case, Her Britannic Majesty's Attorney-General of Canada has presented, with the knowledge and approval of the Imperial government of Great Britain, a suggestion on behalf of the claimant. He represents no property interest in the vessel, as is sometimes done by consuls, but only a public political interest. We are not insensible to the courtesy implied in the willingness thus manifested that this court should proceed to a decision on the main question argued for the petitioner; nor do we permit ourselves to doubt that under such circumstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.... We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, "since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."[Footnote: _In re_ Cooper, 143 United States Reports, 472, 503.] In the following year a convention was concluded between the United States and Great Britain for the submission of the question of our jurisdiction over Behring's Sea to arbitration. The arbitration took place and the award supported the British contention. Congress passed an act to give it full effect. The convention provided in terms that "the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration as a full, perfect and final settlement of all the questions referred to by the arbitrators." In July, 1891, before the award was made, an American vessel engaged in the seal fishery outside the three-mile limit was seized by one of our revenue cutters. A libel was filed by the United States in the admiralty court for Alaska and she was condemned. Her owners appealed to the Circuit Court of Appeals, on the ground that the seizure was made outside of the jurisdiction of the United States. If so, they were entitled to her release. The court held that the limits of this jurisdiction were conclusively settled by the award, and thus adverted to the claim that they should treat the case as the Supreme Court of the United States had dealt with that which followed the seizure of the year before: This question has been settled by the award of the arbitrators, and this settlement must be accepted "as final." It follows therefrom that the words "in the waters thereof," as used in section 1956, and the words "dominion of the United States in the waters of Behring Sea," in the amendment thereto, must be construed to mean the waters within three miles from the shores of Alaska. In coming to this conclusion, this court does not decide the question adversely to the political department of the government. It is undoubtedly true, as has been decided by the Supreme Court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the government. "They are beyond the sphere of judicial cognizance," and "if a wrong has been done, the power of redress is with Congress, not with the judiciary." The Cherokee Tobacco, 11 Wall., 616-621. But in the present case there is no pending question left undetermined for the political department to decide. It has been settled. The award is to be construed as a treaty which has become final. A treaty when accepted and agreed to becomes the supreme law of the land. ... The duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time _in re_ Cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same "as a full, complete, and final settlement of all questions referred to by the arbitrators," and from the further fact that the government since the rendition of the award has passed "an act to give effect to the award rendered by the tribunal of arbitration."[Footnote: The La Ninfa, 75 Federal Reporter, 513, 517.] The degree of confiscation was therefore reviewed. It will be noticed that this result was reached in a suit by the United States in one of their own courts, in which the claim of the government was one of territorial boundary, and yet that the court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. The treaty was the law. This law provided for the award and made it, whichever view should be adopted, final. It was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly. The courts before the Revolution, and in some States for half a century after it, served as a kind of political mouthpiece. The institution of the grand jury[Footnote: See Chap. XVII.] afforded the means. Those composing it are personally selected by the sheriff from the principal men in the county. It is the duty of the court to instruct them at the opening of the term which they are summoned to attend as to the law and practice governing the exercise of their functions. Frequently this charge was prefaced by an harangue from the judge on the social, moral, religious or political questions of the day.[Footnote: "Life and Works of John Adams," II, 169.] To this the grand jury were not backward in responding with compliments and perhaps presentments. In Massachusetts they went even further in 1774. The House of Representatives of the Provincial Assembly impeached the Chief Justice for accepting a salary from the Crown instead of relying on legislative grants, as had been the practice. The Council before which the articles were exhibited declined to entertain them. The people, however, felt that the House was right, and this sentiment was manifested at the next sessions of the courts by the grand and petit juries in every county. They refused to take the oaths and stated that they could not take part in proceedings presided over by a judge who was under impeachment. No business was done in court until the following year, when, after the battle of Lexington, new judges were appointed by the Council.[Footnote: "Life and Works of John Adams," II, 332; X, 240; "Principles and Acts of the Revolution," 100.] Sometimes the laws of the State were criticised in this way by judge and jury. In December, 1788, a grand jury in South Carolina made this presentment: We present as a grievance of the greatest magnitude the many late interferences of the legislature of the State in private contracts between debtor and creditor. We should be wanting in our duty to our country and regardless of the obligation of our solemn oath and the high trust at this time devolving upon us by operation of the laws of the land, did we omit this occasion between the expiration of one legislature and the meeting of a new representative body, to express our utter abhorrence of such interferences.[Footnote: "American Museum," VII, Appendix II, 10. _Cf. ibid._, 19.] In a similar way unpopular treaties[Footnote: McMaster, "History of the People of the United States," II, 229.] or acts of Congress were formerly attacked. In 1819, the action of the House of Representatives as to the introduction of slavery in Missouri was the subject of a warm protest from a grand jury in that territory, which closed thus: They hope those restrictions will never more be attempted; and, if they should, they hope by the assistance of the genius of '76 and the interposition of Divine Providence to find means to protect their rights.[Footnote: Niles' Register, XVII, 71.] The protective tariffs of the United States were frequently presented as grievances in the South during the years preceding the nullification movement in South Carolina.[Footnote: U. B. Phillips, "Georgia and State Rights," Report of the American Historical Association for 1901, II, 117.] In 1825, a grand jury in Pennsylvania presented as a grievance the suspension of Commodore Porter from duty for six months under sentence of a naval court martial, approved by the Secretary of the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a grand jury in Tennessee presented a "protest against the bold and daring usurpations of power by the present Executive of the United States" (John Quincy Adams), and stated that "being decidedly opposed to the present administration, we have for ourselves resolved to oppose all those we have just reason to suspect to be friendly thereto, and recommend the same course to all our fellow-citizens of Blount County."[Footnote: Niles' Register, XXXII, 366.] In 1777, the Chief Justice of South Carolina began his charge to a grand jury with a long statement of the justice of the Revolution, its military successes, and the duties of patriotism. The court thereupon ordered "That the political part of the Chief Justice's charge" be forthwith printed.[Footnote: Principles and Acts of the Revolution, 347.] In 1790, Judge Grimke of the same State took advantage of a similar occasion to comment with severity on those who had opposed the ratification of the Constitution of the United States. Jealousy had done much to poison their minds, he said, "for it is observable that throughout the whole of the United States a majority of the leaders of the opposition to our newly adopted government are not natives of our soil; hence this pernicious quality of the mind displays itself more widely in America."[Footnote: "American Museum," VIII, Appendix II, 33.] In 1798, when Elbridge Gerry was the Republican candidate for Governor of Massachusetts, a Federalist newspaper reported approvingly a charge of Chief Justice Dana of that State. He had been an ardent politician before going on the bench and had declined a nomination as minister to France during the preceding year. "The learned judge," said the Boston _Centinel_, "in a forcible manner proved the existence of a French faction in the bosom of our country and exposed the French system among us from the quintumvirate of Paris to the Vice-President and minority of Congress as apostles of atheism and anarchy, bloodshed and plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin, "Memoirs of Elbridge Gerry," II, 296, note.] In 1800, Justice Chase of the Supreme Court of the United States made several charges in Maryland hardly less objectionable, one of which was afterward unsuccessfully set up by the House of Representatives as a ground of his impeachment. The article stating it described the charge as "an intemperate and inflammatory political harangue with intent to excite the fears and resentment of the said grand jury and of the good people of Maryland against their state government and Constitution." He had, indeed, used this language: You know, gentlemen, that our State and national institutions were framed to secure to every member of the society, equal liberty and equal rights; but the late alteration of the federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our State constitution, by the establishment of universal suffrage, and the further alteration that is contemplated in our State judiciary (if adopted) will, in my judgment, take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. The independence of the judges of this State will be entirely destroyed if the bill for the abolition of the two supreme courts should be ratified by the next general assembly. The change of the State constitution, by allowing universal suffrage, will, in my opinion, certainly and rapidly destroy all protection to property, and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments. I can only lament that the main pillar of our State constitution has already been thrown down by the establishment of universal suffrage. By this shock alone the whole building totters to its base and will crumble into ruins before many years elapse, unless it be restored to its original state. All this was less indefensible under the judicial practice of a century ago than it would be now, and there were not enough votes of Guilty on the article of impeachment founded upon it to secure a conviction. In the same year, Judge Alexander Addison of the Circuit Court of Pennsylvania was charging a Pennsylvania grand jury that the Jeffersonians had assumed a name that did not belong to them. "Such men," he said, "disgrace the name of Republicans by exclusively assuming it. In their sheep's clothing they are ravening wolves."[Footnote: Wharton's State Trials, 47, note.] For this, among other things, he was very properly impeached and removed in 1803, after the Republicans came into power in that State.[Footnote: McMaster, "History of the People of the United States," III, 154.] It is difficult for the American of the twentieth century to conceive how honorable men could so have abused official position.[Footnote: Wharton's State Trials, 376. Justice Washington made it a rule not to enter into any political questions in his charges unless necessary for the guidance of the grand jury in the work before them, and until 1817, when party feeling had moderated, not to give out copies of any charges for publication. Niles' Register, XIII, 169.] The cause lies in the extreme rancor which then embittered politics and debased society. Federalists and Republicans were hardly on speaking terms. Many who were actively engaged in politics felt compelled to carry a sword cane for defence if attacked. Judge Addison's charge brought out an open letter to him in a Pittsburgh newspaper, signed by a Republican who was on the Supreme bench of the State, expressing his astonishment that the people who heard him "were not fired with sudden indignation and did not drag you from your seat and tread you under foot."[Footnote: Wharton's State Trials, 47, note.] On the other hand, at a political banquet of the Boston Federalists, at about the same time, their approval of Judge Dana's charges to grand juries was manifested by this toast: "The Honorable Francis Dana, Chief Justice of the learned Associate Judges of our Supreme Judicial Court. While the political opinions delivered from the bench are dictated by intelligence, integrity and patriotism, may they be as highly respected as have ever been its judicial decisions."[Footnote: Austin, "Life of Elbridge Gerry," II, 297, note.] The judiciary may, and often do, command and compel inferior executive officers to do specific official acts which it is their plain duty to perform, or issue an injunction to prevent their doing an official act which is plainly beyond their powers. Heads of Departments of the State or the United States are subject to this power.[Footnote: Noble _v._ Union River Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169 U. S. Reports, 466.] So in the Federal Courts are Governors of States acting under a law repugnant to the Constitution of the United States.[Footnote: Pennoyer _v._ McConnaughy, 140 U. S. Reports, 1.] No such writ will be issued, however, when the case is of a political nature and involves the exercise of any official discretion,[Footnote: Georgia _v._ Stanton, 6 Wallace's Reports, 50.] nor under any circumstances against the President of the United States.[Footnote: Mississippi _v._ Johnson, 4 Wallace's Reports, 475.] As to whether it can in some cases be granted by a State court against the Governor there is a conflict of authority. The development of party government in the United States has led of recent years to much legislation for the regulation of party conventions and party organization in the interest of fair dealing and public order. Statutes of this nature relating to the form and heading of ballots for use at popular elections are common. If conflicting factions contend for the right of issuing ballots in the name of the same party, the courts may be called upon to decide between them on an application for an injunction or writ of mandamus. The legislature, however, may provide that some standing agency or committee of a party shall decide finally upon any such conflicting claims, and in such case their decision will be conclusive upon the courts.[Footnote: State _v._ Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.] When title to a political office is contested, the courts, unless there is some constitutional provision to the contrary, may be appealed to for a decision. This is true even in respect to the office of Governor.[Footnote: Boyd _v._ Thayer, 143 U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports, 548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It is a remedy which has been, though in rare instances, abused for party purposes.[Footnote: Such a case was the issue by a District Judge of the United States in 1872 of an injunction-order under which the Marshal took possession of the Louisiana State-house, and excluded those claiming to be the legislature of the State. Gibson, "A Political Crime," 347 _et seq._; Senate Report, 457, Forty-second Congress, third session.] The right of the Governors, which exists under the Constitutions of several States, to ask the judges of the Supreme Court for their opinion on any question of law, may throw upon them the delicate task of deciding in a collateral proceeding who is Governor, if the title to the office is claimed by two. This was the case in Florida in 1869. The House of Representatives had commenced proceedings of impeachment against the Governor. It was on the first day of a special session of the Assembly. There could be no such session unless a quorum was present in each house. There were but twelve Senators in attendance. The Lieutenant-Governor regarded the proceedings as regular, and assumed to exercise the office of Governor pending the trial. The Governor claimed that twelve Senators were not a quorum, and that the proceedings were void. On these points he requested the opinion of the Justices of the Supreme Court, and they gave one supporting his contentions.[Footnote: 12 Florida Reports, 653.] A few weeks later a regular session was held, at which a quorum was present in each house, and the proceedings of the special session were treated as void.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 518, 520.] In the early days of the United States, under the present Constitution, the Chief Justices of the Supreme Court of the United States at times filled also a political office, and so were invested at the same time with political and judicial functions. John Jay, the first Chief Justice, while holding that office, was made our Envoy Extraordinary to Great Britain, and spent a year abroad in that capacity. His acceptance of the position, however, occasioned general and unfavorable comment. John Marshall was both Chief Justice and Secretary of State for five weeks, during which he held one term of the Supreme Court. Oliver Ellsworth was both Chief Justice and minister to France at the same time, and for a period of over a year, during which he held one term of court. Nothing of this kind has since occurred, nor would it now be thought consistent with the proprieties of judicial office. When the result of the election of the President and Vice-President of the United States was contested in 1877, Congress, as a temporary makeshift, bridged over the difficulty by creating a commission of fifteen, five from each house and five from the Supreme Court, to decide upon the returns. Four of the justices were especially selected by the act passed for this purpose, two of them being Republicans and two Democrats, and they were directed to choose the fifth.[Footnote: 19 United States Statutes at Large, 228.] They agreed on Justice Bradley, a Republican. The Congressional members were equally divided politically. The result proved to be that on every important question in controversy every Republican voted for the view favorable to the Republican candidates and every Democrat voted for the other. The country could not fail to see that judges, as well as other public men, may be insensibly influenced by their political affiliations, and regarded the whole matter as a new proof of the wisdom of separating the judiciary from any unjudicial participation in the decision of political issues.[Footnote: See Wilson, "Division and Reunion," 286; S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy, "Some Account of the Work of Stephen J. Field," 440.] Justices of the Supreme Court have since sat on international tribunals of arbitration, but this is, or should be, a strictly judicial proceeding. In the State Constitutions, the judges of the highest courts are now often expressly forbidden to accept other office,[Footnote: See Chap XXII.] but in the absence of such a prohibition it would be considered as unbecoming. Formerly and during the first third of the nineteenth century this was in many States not so. Some were then judges because they held legislative office and as an incident of it. Others did not hesitate to accept political positions. Of the six Federalist electors chosen in New Hampshire at the presidential election of 1800, three were judges of her Supreme Court.[Footnote: Wharton's State Trials, 47.] Judges have frequently taken part in constitutional conventions of their States. In Virginia, Chief Justice Marshall was a member of that of 1829, and Judge Underwood of the District Court presided over that of 1867. Chancellor Kent and Chief Justice Spencer were members of that of 1821 in New York. It may well be doubted if the advantages to be gained by their counsel in such a position are not outweighed by the evil of exposing it to criticism as dictated by selfish considerations. A member of the New York convention thus alluded upon the floor to the measures supported by the Chief Justice and Chancellor: He regretted that such an opinion and plan had been proposed by the Chief Justice. It must have arisen from the politics of the Supreme Court. The judges of that court had been occupied so much in politics that they had been compelled to press upon the public a system that had nothing else to recommend it than such a relief to themselves from the burthen of official duties as would leave them to the free exercise of their electioneering qualifications. But for this, the Chief Justice might have shown a Holt, or a Mansfield. The elevated character of the Chancellor had been often asserted and alluded to. He meant no disrespect to that honorable gentleman. He respected him as highly as any man when he confined himself to the discharge of the official duties of his office; but when he stepped beyond that line; when he became a politician, instead of being his fancied oak, which, planted deeply in our soil, extended its branches from Maine to Mexico, he rather resembled the Bohon Upas of Java, that destroyed whatever sought for shelter or protection in its shade.[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 615.] The pardoning power is essentially of a political nature. Judicial officers are to do justice. Mercy is an act of policy or grace. A pardon after conviction presupposes guilt. Nevertheless, in a few States this royal prerogative of pardoning has been committed to a board of officers, headed by the Governor, of which some of the judiciary are members. There is this advantage in it, that judges know best how fully circumstances of extenuation are always taken into account by the court before pronouncing sentence, and therefore cannot but exercise a restraining power against the influences of mere sentimental promptings to inconsiderate clemency. It may be said, in general, that the tendency towards keeping the judiciary apart from any active connection with the executive department has steadily increased since the first quarter of the nineteenth century. When our position as a neutral power, in 1793, involved us in serious questions affecting the rights of Great Britain and France, Washington's cabinet advised him that the ministers of those countries be informed that the points involved would be referred to persons learned in the law, and that with this in view the Justices of the Supreme Court of the United States be invited to come to the capitol, six days later, "to give their advice on certain matters of public concern, which will be referred to them by the President."[Footnote: Jefferson's Writings, Library Ed., I, 370.] Nothing of this nature would now be dreamed of, under any conditions. * * * * * CHAPTER IV THE FORCE OF JUDICIAL PRECEDENTS The antipathy to legal codification, which, until recent years, was a characteristic both of the English and American bar, and still prevails, though with diminishing force, has given, and necessarily given, great force to judicial precedents. It is mainly through them that with us unwritten law passes into written law. Precedent is a fruit of reason ripened by time. Time, it has been said, is the daughter of Antiquity and takes place after Reason, which is the daughter of Eternity. Precedent rests on both. A legal code framed in any American State is little more than the orderly statement of what American courts have decided the law to be on certain points. When reason is set to work upon the solution of a problem growing out of the affairs of daily life, it often happens that two minds will pursue different paths and perhaps come to different results. Not infrequently neither result can fairly be pronounced untenable. An English judge has said that nine-tenths of the cases which had ever gone to judgment in the highest courts of England might have been decided the other way without any violence to the principles of the common law. Every lawsuit looks to two results: to end a controversy, and to end it justly; and in the administration of human government the first is almost as important as the last.[Footnote: Hoyt _v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of the essence of justice; but among men and as administered by their governments it can only be such certainty as may be attained by an impartial, intelligent, and well-trained judge. If such a judge has, after a proper hearing, declared what, under a particular set of circumstances, the law is which determines the rights of the parties interested, this declaration makes it certain, once and forever, as far as they are concerned, and helps to make it certain as to any others in the future between whom there is a controversy under circumstances that are similar. If it is the declaration of a court of supreme authority it is ordinarily accepted as of binding force by any inferior courts of the same government, and treated with great respect and as high evidence of the law by any other of its superior courts, as well as by courts of other States before which a similar question may be presented. A decision on a point of law by the highest court in a State does not, however, bind its lower courts as absolutely as would a statute. An inferior court may disregard it and decide the same point another way if it be fully satisfied that the action taken by the court above was ill-considered and erroneous. It is possible that in such event, on reconsideration, the court of last resort may reverse its original position.[Footnote: A good instance of this is furnished by the case of Johnson _v._ People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895. In McFarland _v._ People, 72 Illinois Reports, 368, the Supreme Court had stated in its opinion, that if two unimpeached witnesses gave the only testimony as to a certain point material to the plaintiff's case, and testified in contradiction of each other, the case failed for want of proof. Many years later a charge to the jury to this effect was asked and refused in an inferior court. An appeal was taken to the Supreme Court, and there Mr. Justice Schofield, the author of the original opinion, thus disposed of it: "Although in McFarland _v._ People, 72 III., 368, the writer of this opinion expressed the belief that a similar instruction was free of legal objection, his remarks in that respect were unnecessary to a determination of the case then before the court, and they were made without sufficient consideration, and are manifestly inaccurate. They are now overruled. The question of competency is one of law, and therefore for the court; but the question of credibility,--that is, of worthiness of belief,--and therefore the effect of the competent evidence of each witness, is one of fact, and for the jury."] If not, that acquires by this attack a double force. Chief Justice Bleckley of Georgia once remarked that courts of last resort lived by correcting the errors of others and adhering to their own. Nevertheless, they have often, years after formally announcing a certain legal doctrine in one of their opinions, declared it to be unsound, and overruled the case in which it was laid down. They do this, however, with natural and proper reluctance, and never if this doctrine is one affecting private rights of property and has been followed for so long a course of time that it may be considered as a rule on which the people have relied in exchanging values and transferring titles. The public, however, have rights to be regarded as fully as individuals, and if a right of private ownership has been adjudged to exist, which involves a public loss, the precedent thus created might be overruled with less hesitation than one would be determining rights and correlative obligations that were purely private. Thus the North Carolina courts for seventy years held that a public office was the private property of the incumbent. No other courts in the United States took that view, and it has, by a recent decision, been repudiated in North Carolina.[Footnote: Mial _v._ Ellington, 134 North Carolina Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports Annotated, 697.] Still more are public interests to be regarded when a question arises as to reversing a decision as to the proper construction of a constitutional provision. If a judicial mistake be made in construing a statute it is easily remedied. The next legislature can amend the law. But a Constitution can only be amended with extreme difficulty and by a slow process. If the court falls into error as to its meaning, the correction must ordinarily come from its own action or not at all. Hence an opinion on a matter of constitutional construction is less to be regarded as a final and conclusive precedent than one rendered on a matter of mere private right. It has been the position of some American statesmen and jurists that judicial decisions on points of constitutional construction were not binding upon the executive or legislative department of the government. President Jackson asserted this with great force in his message to the Senate of July 10, 1832, disapproving the re-charter of the Bank of the United States. He conceded, however, that a judicial precedent may be conclusive when it has received the settled acquiescence of the people and the States. But while such acquiescence may strengthen the authority of a decision, it can hardly be regarded as that which gives it authority. That comes from the fact that it is an exercise of the judicial power of the government in a case for the disposal of which this judicial power has been properly invoked. The decision of the court in McCulloch _v._ Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby, "The American Constitutional System," 44, 123.] unquestionably settled forever, as between the cashier of the bank and the State of Maryland, that the bank was a lawful institution. That in Osborn _v._ The Bank of the United States[Footnote: 9 Wheaton's Reports, 738.] reaffirmed it as between the bank and the Treasurer of the State of Ohio. It would be intolerable if such judgments were not in effect equally conclusive for the determination of all controversies between all men and all States growing out of the creation of such a corporation. Practically, then, the opinion of the executive department to the contrary could only be of importance in such a case as Jackson had in hand; that is, in its influencing executive action in approving or disapproving some proposed measure of legislation. It could not disturb the past. The authority of a judicial precedent is weakened if it comes from a divided court, and especially if a dissenting opinion is filed in behalf of the minority. A silent dissent indicates that the judge from whom it proceeds is not so impressed by the fact, or the importance to the public, of what he deems the error of the majority that he thinks it worth while to express the reasons which lead him to differ from them. No departure from precedent in any American court has ever awakened so much feeling as that by the Supreme Court of the United States in 1872, when it decided that Congress could make government notes a legal tender for debts contracted before the law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's Reports, 457, 529.] It had held precisely the contrary two years before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's Reports, 603.] but it was by a bare majority and in the face of a strong dissenting opinion. In the opinions filed in the second case stress was laid upon this division of the court.[Footnote: 12 Wallace's Reports, 553, 569. See George F. Hoar, "Autobiography," I, 286.] The word "established" is often used to describe the kind of precedent to which courts are bound to adhere. What serves to establish one? Long popular usage, repeated judicial affirmations, and general recognition by approved writers on legal topics. Of these, in fact, the last is probably the most powerful. Lawyers and courts, in countries without codes, get their law mainly from the standard text-books. Such authors as Coke, Blackstone, Kent and Cooley are freely cited and relied on as authorities by the highest tribunals.[Footnote: See, for instance, Western Union Telegraph Co. _v._ Call Publishing Co., 181 United States Reports, 101; Louisville Ferry Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It is by the writings of such men that judicial precedents are sifted and legal doctrines finally clothed in appropriate terms and arranged in scientific order. The English courts long ago declared it to be a rule of law to prevent perpetuities that no estate in lands could be created which was not to commence within the compass of a life or lives of persons then existing, with an exception intended to favor a minor heir. American courts accepted this rule, but some of them construed it as meaning that no estate in lands could be created which was to continue after the expiration of such a period. This construction was shown by Professor John C. Gray, in a work on "Perpetuities," to be unwarranted, and since its publication the cases which had proceeded on that basis have been generally treated as erroneous. The nature of a legal presumption, also, had been misconceived by several American courts. It had been treated as evidence of facts.[Footnote: Coffin _v._ United States, 156 United States Reports, 432.] Professor J. B. Thayer, in his "Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-575.] argued so forcibly against this view that in at least one State a decision in which it had been taken has been formally overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life Association, 77 Connecticut Reports, 281, 291; 58 Atlantic Reporter, 963.] The Court of Appeals of New York once held in a carefully prepared opinion that a railroad might be built along the shore of a navigable river, under authority from the State, without first making compensation to the riparian proprietors, whose access to the waters might thus be obstructed.[Footnote: Gould _v._ Hudson River Railroad Co., 6 New York Reports, 522.] In a text-book written by Chief Justice Cooley, this decision was justly criticised,[Footnote: Cooley on Constitutional Limitations, 670.] and not long after the publication of that work it was formally overruled.[Footnote: Rumsey _v._ New York and New England Railroad Co., 133 New York Reports, 79; 30 Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.] It is safe to say that its fate was largely the result of the comments thus made by a distinguished jurist, whose only motive could be to maintain the integrity and consistency of legal science. The general doctrine of the courts, which is commonly expressed by the rule "_stare decisis_," was never better stated than by Chief Justice Black of Pennsylvania, in these words: When a point has been solemnly ruled by the tribunal of the last resort, after full argument and with the assent of all the judges, we have the highest evidence which can be procured in favor of the unwritten law. It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that _stare decisis_ is itself a principle of great magnitude and importance.... A palpable mistake, violating justice, reason and law, must be corrected, no matter by whom it may have been made. There are cases in our books which bear such marks of haste and inattention, that they demand reconsideration. There are some which must be disregarded, because they cannot be reconciled with others. There are old decisions of which the authority has become obsolete, by a total alteration in the circumstances of the country and the progress of opinion. _Tempora mutantur_. We change with the change of the times, as necessarily as we move with the motion of the earth. But in ordinary cases, to set up our mere notions above the principles which the country has been acting upon as settled and established, is to make ourselves not the ministers and agents of the law, but the masters of the law and the tyrants of the people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports, 423.] Generally, overruling a former decision is due to a change of circumstances, which has given the court a new view-point. A marked instance of this occurred in 1851, in proceedings before the Supreme Court of the United States. More than a quarter of a century before, a suit in admiralty for seamen's wages on an inland river had been dismissed by the District Court of Kentucky for want of jurisdiction, and on appeal this action had been affirmed. Mr. Justice Story gave the opinion of the court, and said that a court of admiralty could only take cognizance of such a claim when the services were rendered at sea or upon waters within the ebb and flow of the tide.[Footnote: The Thomas Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a true statement of what had always been the doctrine of both English and American courts. But out of what did this doctrine spring? From the fact that in England there were no navigable waters except those in which the tide ebbed and flowed, and that in the United States, up to that time, there were none of a different kind which had been largely used for commercial purposes. Twenty years passed. Steam navigation had opened the great lakes and the great rivers of the country to a profitable carrying trade. The day was dawning when the bulk of American shipping was to be employed upon them. A suit in admiralty was brought against a ship for sinking another on Lake Ontario. The defendants put in an answer relying on the doctrine laid down by Story. The District Court overruled it. The case came by appeal to the Supreme Court, and in an opinion by Chief Justice Taney the appeal was dismissed. "The conviction," he said, referring to the opinion of Mr. Justice Story, "that this definition of admiralty powers was narrower than the Constitution contemplated, has been growing stronger every day with the growing commerce on the lakes and navigable rivers of the western States.... These lakes are in truth inland seas. Different States border on them on one side and a foreign nation on the other. A great and growing commerce is carried on upon them between different States and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them and prizes been made, and every reason which existed for the grant of admiralty jurisdiction to the general government on the Atlantic seas applies with equal force to the lakes. There is an equal necessity for the instance and for the prize power of the admiralty court to administer international law, and if the one cannot be established neither can the other.... The case of the _Thomas Jefferson_ did not decide any question of property or lay down any rule by which the right of property should be determined.... The rights of property and of parties will be the same by whatever court the law is administered. And as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it."[Footnote: The Genesee Chief, 12 Howard's Reports, 443, 451.] But without any change of circumstances, the proper desire of all American courts to keep their common law in harmony with that of the other States is often sufficient to induce the abandonment of a doctrine once distinctly asserted.[Footnote: City of South Bend _v._ Turner, 156 Indiana Reports, 418; 60 Northeastern Reporter, 271.] The consistency of American law as a whole is immeasurably more important than the consistency of the law of any single State. Sometimes a court of last resort treats a doctrine which it had formerly asserted as manifestly unsound and abandons it without stopping to give a reason or even to overrule the decision which first announced it. Illinois for a long generation adopted the rule that if an injury occurred to one man through the concurring negligence of himself and another, but his negligence was slighter than that of the other, he might hold the latter responsible for the damages suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was not a doctrine justified by the common law nor generally held in this country, and in 1894 the Supreme Court of the State refused to recognize it, with little or nothing more than this brief _ipse dixit_: "The doctrine of comparative negligence is no longer the law of this court."[Footnote: Lanark _v._ Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter, 892.] Occasionally a case is overruled because it has been forgotten. An early decision in Massachusetts (Loomis _v._ Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the position that if a statute required contracts of a certain kind to be put in writing, and a contract of that kind, but embracing also a different and distinct matter not touched by the statute, was made orally, it was wholly void. Such a rule was illogical and unsound, and in a later decision the same court, forgetting that it had indorsed it, said so, and said so when it was not necessary to the decision.[Footnote: Irvine _v._ Stone, 6 Cushing's Reports, 508, 510.] Subsequently, both these cases having been brought to its attention, it affirmed the latter, though remarking that "what was there said on this point was not essential to the decision of that case, and would have been omitted or modified if Loomis _v._ Newhall had been then remembered."[Footnote: Rand _v._ Mather, 11 Cushing's Reports, 1, 5.] The authority of an opinion as a precedent on any point is always proportioned to the necessity of determining that point in order to support the judgment which was rendered. Some judges write treatises instead of decisions or in addition to decisions. Whatever goes beyond that which is required to show that the judgment is the legal conclusion from the ascertained facts is styled in law language _obiter dictum_. It may be interesting and even persuasive, but it is not an authoritative statement of law. It may grow to be such by adoption in subsequent cases. The Court of King's Bench in England was called on, at the beginning of the eighteenth century, to say whether if a man undertook as a friendly act, and not for pay, to cart another's goods, and did it carelessly, he was bound to answer for any damage that might result. There were four judges who heard the case, of whom three gave their opinions.[Footnote: Coggs _v._ Bernard, Lord Raymond's Reports, 909.] Two of these opinions were confined to the precise point of law on which the case turned. In the third, Chief Justice Holt seized the opportunity to lay down the law of England as to all sorts of contracts arising out of the reception by one man of the goods of another. This he did mainly by setting forth what were the rules of the Roman law on the subject, but not referring to their Roman origin, and quoting them, so far as he could, from Bracton, an English legal writer of the thirteenth century, who had also stated them as English law. For four or five centuries these rules had been laid down in an unofficial treatise, but the courts had not fully recognized them. Now the Chief Justice of England had given such recognition in the amplest manner. Meanwhile the trade of England had reached a point at which some definite rules on all these matters had become of the utmost importance. The bar were only too glad to advise their clients in accordance with Lord Holt's opinion. It was not long before it was universally practiced upon, and no case in the English language touching contract relations of that nature is of greater importance as a precedent. Yet it became such not because of its intrinsic authority as a judgment, so much as on account of its orderly and scientific statement of a whole body of law of a kind that the people needed and for the origin of which--whether at Rome or London--they cared little, so long as it had been accepted by the highest judicial authority in the realm. On the other hand, the greatest judges have often, in delivering the opinion of the court, asserted doctrines the consideration of which was not essential to the decision, and later retracted the assertion on fuller consideration or seen the court in a later case retract it for them. Two of the great opinions of Chief Justice Marshall are Marbury _v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens _v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the first the court held that it had no jurisdiction to command the Secretary of State to deliver a commission executed under the preceding administration, because, although Congress had assumed to confer it, Congress had no power to do so; and in defending this position Marshall observed that the Constitution defined the jurisdiction of the Supreme Court over cases brought there in the first instance, and that in this clause of the Constitution affirmative words had the force of negative words so far as to exclude jurisdiction over any other cases than those specifically mentioned. In the second case this observation was relied on by Virginia to defeat the power of the court to review a State judgment. But, said the Chief Justice, "it is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.... In the case of Marbury _v._ Madison, the single question before the court, so far as that case can be applied to this, was whether the legislature could give this court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But in the reasoning of the court in support of this decision some expressions are used which go far beyond it.... The general expressions in the case of Marbury _v._ Madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case or the tenor of its reasoning." He then proceeded to dispose of the case in hand by saying that Virginia having obtained an erroneous judgment against Cohens, Cohens had a right to appeal, and the suit still remained a suit by a State against him and not by him against a State. Unfortunately, here again came in next an _obiter dictum_. If, he said, this were not so, there was another principle equally decisive in support of the jurisdiction, namely, that the Constitution gave the United States judicial power over all cases arising under the Constitution or laws of the United States without respect to parties. Nearly a hundred years later a State was sued in the courts of the United States on a cause of action arising under the Constitution, and Cohens _v._ Virginia was relied on as a precedent. "It must be conceded," was the reply of the Supreme Court, "that the last observation of the Chief Justice does favor the argument of the plaintiff. But the observation was unnecessary to the decision, and in that sense extra-judicial, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion."[Footnote: Hans _v._ Louisiana, 134 United States Reports, 1, 20.] It may be added that decisions on a point not material to the cause are generally made without the benefit of previous argument by counsel. The lawyers will naturally address themselves to the controlling questions, and if well trained will see what these are quite as clearly as the court. It is the argument at the bar, in which different views of law are presented and each defended by men of learning and ability, which enables the judge, after hearing both sides and weighing all that is said in behalf of one against all that is said in behalf of the other, to come to the true conclusion. The Romans recognized this in their rule as to the force of precedent in a matter of customary law. The first thing to ask was whether "_contradicto aliquando judicio consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de legibus_, etc., 34.] The retrospective effect which a refusal to follow a former decision may have in disturbing vested rights being one of the most cogent reasons for adhering to precedent, there is less objection to departing from it when the decision can be so limited as to have only a future operation. This is occasionally feasible. Thus the High Court of Errors and Appeals of Mississippi by an early decision held that on the dissolution of a bank all its rights and liabilities were extinguished. Thirty years later the Supreme Court of the same State overruled that decision, declaring it "condemned by reason and the principles of modern and enlightened jurisprudence," but nevertheless applied it as a controlling precedent to a case arising out of the dissolution of a bank which had been incorporated previously to the time when the original decision was made.[Footnote: 1 Bank of Mississippi _v._ Duncan, 56 Mississippi Reports, 165.] The effect of overruling a former opinion may also be limited by the dual character of our government. The courts of the United States follow the decisions of the State courts in the determination of matters of State law. If a State law is held by the courts of the State to have a particular meaning and effect it will be accorded the same in the federal courts. But if a federal judgment is for that reason rendered in a certain form, and there is no appeal, it settles the rights of the parties to the suit forever, even should the State courts afterward reverse their former rulings as being erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191 United States Reports, 499.] De Tocqueville, in his estimate of the American bar,[Footnote: 3 "Democracy in America," II, Chap. XVI.] speaks of it as devoted to investigating what has been done rather than what ought to be done; to the pursuit of precedent rather than of reason. In a very limited sense this is true. Where codes are wanting, former judicial decisions must serve in their place. But it would be a mistake to suppose that it is a large part of the business of American lawyers to search out precedents for the guidance of the courts. Most cases, after any facts in dispute are once settled, depend on the application of the simplest processes of ordinary reasoning. No aid from the past is needed for this and none is to be had. It has been well said by an English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10 Chancery Appeal Cases, 526.] that the clearer a thing is the more difficult it is to find any express authority or any _dictum_ exactly to the point. Nor, if there be one, is it to be accepted without regard to the circumstances out of which it arose or the end to be effected by the judgment. A precedent may indeed be used slavishly, but so it may be used in the free spirit in which it was conceived. Many an argument at the bar, however, is ruined by an excessive anxiety to repeat the _ipsissima verba_ of some ancient opinion, when the soul of it is the only thing of value. And occasionally courts are chargeable with pursuing the letter of some of their former deliverances rather than the spirit which called them forth and gave them all their vitality. * * * * * CHAPTER V THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW The English common law was and is an unwritten law. To find it one has to look in legal treatises and reports of judicial decisions. Its historical development has been not unlike that of Rome. In Rome, as in England, there were in early times written enactments or governmental declarations of standing rules on but few points. Some of these writings were of special importance, such as the twelve tables of Rome and the _Magna Charta_ of England. These were regarded as so bound up with the very life of the people as to have a place by themselves, and a superior force to anything to the contrary to which the free consent of the people was not formally given. But in general Romans and Englishmen preferred to make custom their law, and to let this law grow "not with observation," but insensibly from day to day as the needs of their social organization might be found to require. It was a wise preference, and founded on a better philosophy than they knew--than the world knew, until the theory of evolution was demonstrated by Darwin and applied to governmental science by Spencer. A customary law for a people of advancing civilization and power must expand with corresponding rapidity. There will soon be disputes as to what it is on certain points and a demand for some authoritative information as to this. In Rome, the priests gave it at first, and then the lawyers. In England, the priests never gave it, as priests. There was no sacred college of law. Priests took part in legislation. A priest, at the king's right hand, was his spokesman in doing equity. But it was from the first the king as a judge, or the king's judges deputed by him and sitting for him, who settled controverted questions of common law. For the Roman and for the Englishman the first representatives of government who could be called judges were primarily and principally executive officers. The Roman _prætor_ was not given judicial functions because he had legal attainments. The _aula regis_ of early England was composed of the great officers of state. The chief justiciar, however, soon ceased to be prime minister. His associates on the bench, as law became a recognized profession, came to be chosen largely for their fitness for judicial work and to be kept at it during the king's pleasure. At Rome, on the contrary, the prætorship remained a political place, held for a fixed term, and a brief one. Information as to the unwritten law applicable to any controversy between parties had therefore to be sought from others. The lawyers could give it; and it was to them, not to the judges, that resort was had. The opinion of a great jurist was for Rome what the opinion of a judge was for England. It was commonly accepted as conclusive not only by the people but by the courts. Such opinions profess to state what the law was by which rights accrued out of a past transaction. In fact, they often do much more. By declaring that to be the law, and declaring it with authority, they are the first to make it certain that it is the law. The difference between this and making law is not great. The Romans at first accorded authority to the opinions (_responsa_) of lawyers only because of the standing and reputation of those who gave them. Later the emperors gave an official character and weight to the opinions of certain lawyers of the past. The English always accorded authority to the opinions of their judges, because they spoke for the state. Americans from the first have done the same. American judges have exercised these powers of ascertaining and developing unwritten law even more freely than English judges. They were forced to it as a result of applying the common law of one people to another people inhabiting another part of the world and living under very different social conditions. In doing this it was necessary to reject not a little of what for England had already been definitely settled and universally accepted. The legislatures of the colonies and States rejected much, but the courts rejected more. The legislatures also added much, but the courts added yet more. Usages grow up rapidly in new settlements and along frontiers bounded by territory held by savages. Of such usages, under the rulings of the courts, many were soon crystallized into law. New inventions and new political conceptions in the eighteenth century began to change the face of the civilized world. The common law as to agency had to be adapted to the operations of business corporations; that as to highways to railroads; that as to contracts by mail to contracts by telegram, and later to contracts by telephone. The whole law of master and servant, which for the English people was bottomed on the relation of land-owner and serf, was to be recast. Public assemblies were to be regulated and their proceedings published with greater regard to public and less to private interest.[Footnote: Barrows _v._ Bell, 7 Gray's Reports, 301; 66 American Decisions, 479.] Along all these lines and many others the American courts have now for nearly three hundred years been quarrying out American law from the mine of the unwritten law of the people within their jurisdiction. It has been their natural endeavor to make each part of the new system of jurisprudence which they were gradually building up harmonious with every other and to give a certain symmetry to the whole. This has forced them to deduce rule from rule and principle from principle with a freedom for which in older countries of settled institutions there is less occasion. The process has gone on during the last fifty years with ever-increasing rapidity, and for two reasons. There have been more novel questions to meet and there has been a greater wealth of suggestion and precedent at command. Not a little, however, of the development of our unwritten law has been and remains of a local character. This is particularly true of that of the Pacific States, both on account of climatic conditions and historical antecedents.[Footnote: Katz _v._ Walkinshaw, 141 California Reports, 116.] Chief Justice Field of the Supreme Court of California, afterward so long a member of the Supreme Court of the United States, did both a constructive and a destructive work in shaping the jurisprudence of that State. He found it seated in a land on which certain institutions of civil law origin had been impressed for centuries and into which other institutions of common law origin had been introduced in recent years. His judicial opinions molded these into one mass, rejecting something from each and retaining something from each.[Footnote: Pomeroy, "Some Account of the Work of Stephen J. Field," 38, 45.] Some of the results of his creative touch have been the foundation of decisions in distant States, but most were so dependent on local circumstances and conditions as to be incapable of transplantation. But as to all questions of general concern which can be answered from analogies drawn from the common law, the judges of each State--and it is the State judiciary on which the burden of developing unwritten law mainly rests--now find in the reported decisions of the courts of last resort in all the other States a fertile source of supply when they are looking for a rule to fit a case for which the ancient law made no direct provision. Keen intellects from the bench, aided perhaps by keener ones from the bar in forty-five different jurisdictions, are discussing the problems of the day as they appear mirrored in litigated causes. What is a new question in one State was set at rest ten years or ten days ago by a judicial decision in another. If the decision was a just and logical deduction from accepted principles of the older law it will probably be followed everywhere. If unjust and illogical, its very faults will serve to guard other courts to better conclusions. How far judges advance along these paths depends greatly on the character of the bar. A judge rarely initiates anything. He is apt to fall into a mistake if he does. The business which he has to do is brought before him by others. It is brought before him in the best way to throw all possible light upon it, because it is set before him from two opposite points of view by two antagonists, each strenuously endeavoring to detect a flaw in the reasoning of the other. These two men have previously given the subject in controversy much careful thought. What views neither presents are generally not worth presenting. As was said in the preceding chapter, it is only in the plainest case that a judge can properly or safely base his decision on a position not suggested at the bar or as to the soundness of which he has not asked the opinion of the counsel at the hearing. The development of law, therefore, whether unwritten or written, is primarily the work of the lawyer. It is the adoption by the judge of what is proposed at the bar.[Footnote: See Chap. VI, X.] There are obvious limits to this power of developing unwritten law. The courts are not to push forward into a place more appropriate for the legislature to occupy. Mr. Justice Holmes of the Supreme Court of the United States, when Chief Justice of Massachusetts, stated with his usual elegance and force the bounds within which, as it seemed to him, judicial authority should be kept. In a common law suit against a railroad company for damages suffered by an accident on its road, the defendant had asked the trial court to order the plaintiff to submit to an examination of his person by a physician whom it named, for the purpose of determining what injuries he had really suffered. "We agree," said the Chief Justice, "that in view of the great increase of actions for personal injuries it may be desirable that the courts should have the power in dispute. We appreciate the ease with which, if we were careless or ignorant of precedent, we might deem it enlightened to assume that power. We do not forget the continuous process of developing the law that goes on through the courts in the form of deduction or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based upon a deeper insight into the present wants of society. But the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. Their general duty is not to change, but to work out, the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds with such consistency as he may be able to attain.... In the present case we perceive no such pressing need of our anticipating the legislature as to justify our departure from what we cannot doubt is the settled tradition of the common law to a point beyond that which we believe to have been reached by equity, and beyond any to which our statutes dealing with kindred subjects ever have seen fit to go. It will be seen that we put our decision, not upon the impolicy of admitting such a power, but on the ground that it would be too great a step of judicial legislation to be justified by the necessities of the case."[Footnote: Stack _v._ New York, New Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155; 58 Northeastern Reporter, 686.] The theory of judicial power thus stated carries implications that would not be universally accepted. It is intimated that if the necessity had seemed strong enough to call for the order asked for in the trial court it ought to have been granted, although not justified by any settled rule or authoritative precedent, nor by any clear analogy from such a rule or precedent. This is a view taken, though with less caution and qualification, in a work written by the same hand many years before, which is recognized as a legal classic on both sides of the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after discussing some of the reasons which actuate judges in assuming to unfold the unwritten law, it is stated thus: The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy: most generally, to be sure, under our practice and traditions the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis.... The truth is that the law is always approaching and never reaching consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow. Courts enter on a dangerous ground when, to justify their action, they rely on any rule of public policy not stated in Constitution or statute and unknown to the common law. If such was once the habit of the English courts, it was because of social conditions with which they had to deal which no longer exist either in their country or in ours. It is for the judge to adapt old principles rather than adopt new ones. What one man thinks is public policy another, equally clear-headed and well-informed, may not. The safe course for the judiciary is to rely on the legislature to declare it, so far as the common law does not. If, however, the courts of a State are called upon for the first time to declare what any rule of the common law, governing a past transaction, is, or at a given time was, in that State, and this be a doubtful question, the decision virtually calls for the making of a new rule, though under the form of applying an old one, and that will be adopted which may be deemed best calculated to do justice in cases of that particular character.[Footnote: Seery _v._ Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.] * * * * * CHAPTER VI THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW As governments must provide some authority to declare what the unwritten law governing any transaction was, so they must provide some authority to declare what the written law governing any transaction means. Few statements of any rule or principle can be written out in such a way as to convey exactly the same impression to every mind. Thought is subtler than its expression. The meaning of written laws will therefore often be questioned. An answer is sometimes attempted by the authority from which the law proceeded. A king declares what he intended by the terms of an ambiguous edict. A legislature passes an act to declare the meaning of a previous one. But meanwhile rights have accrued. Something has been done in reliance upon a certain construction of the law. If it was a right construction, then what was done was lawful, and no subsequent explanation of his intentions by the lawgiver can change this fact. Laws are addressed to the community at large, and their meaning must be determined once for all from the language used, however inadequate it may have been to express the real design of those who enacted them, unless that design so clearly appears, notwithstanding an unfortunate choice of words, as to compel an interpretation against the letter but in obedience to the spirit of the enactment. A "declaratory statute"--one declaring what a previous statute meant--is therefore, if it gives it a meaning unwarranted by its terms when so interpreted, only effectual as respects future transactions. As to the past, the meaning is for the courts, and while such a statute may aid, it cannot control them. Are the courts to send such questions to a jury or shall the judges decide them? The answer must be determined by considerations applicable to every sort of written paper. If the true construction of an ambiguous document be left to juries, it is evident that there would be no certainty that different results would not be reached in different cases, and probable that unanimity would seldom be attainable. If left to judges, a decision will certainly be reached and, it may be presumed, be reasoned out with care, while if the matter be one of public importance the grounds on which they proceed will be so expressed as to furnish a guide to others toward the same conclusion. The construction of all writings is therefore, by the Anglo-American common law, as by the judicial system of most countries, deemed, in case of a question affecting litigated rights, to belong of right to the judges. Their possession of this power in the United States is especially necessary in respect to written law. In every government there must be some human voice speaking with supreme authority. It may be that of one man or of many men. The essential thing is that it should be a personal utterance, proceeding from persons to whom, by acknowledged law or custom, submission is due, and one that, if need be, can be enforced by the whole power of the State. The fundamental principle of American government, as laid down in the words of Harrington in the oldest of our State Constitutions, after which many of the rest, and that of the United States as well, have been largely patterned, is that it is one of "laws and not of men."[Footnote: Constitution of Massachusetts, Part the First, Art. XXX, quoted more fully in Chapter II.] Laws, however, must be administered by men. Their meaning, if it be uncertain, must be determined by men. It must be the subject, as the same Constitution twice affirms, of "impartial interpretation."[Footnote: _Id_., Preamble, and Part the First, Art. XXIX.] This interpretation is really what gives them force. It is the personal utterance of one speaking for the State, and who speaks the last word. It was simply following English precedent to give this power to the courts as respects legislative enactments. But the principle which required it inevitably extended with equal force to constitutional provisions. The people who adopt written constitutions for their government put their work in a form which must often give rise to questions as to what they intended to express. They rely on the judiciary to secure their enforcement, and the judiciary must enforce them according to what it understands their meaning to be. There is but a step from interpretation to enlargement. Every statute is passed to accomplish something. If the object is clear, the rules of Anglo-American law allow the court that may be called on to apply it to extend its operation to cases within the purpose evidently intended, although the language used is inadequate fully to express it. This is styled giving effect to "the equity of the statute." Even violence can be done to the words, if so only can this judge-discovered intent be made effectual. The rules governing judicial interpretation of statute law fill a good-sized volume. As the Roman lawyers worked out by force of logic and analogy an extensive system of private law from the meagre fabric of the Twelve Tables, so under the lead of American lawyers American judges have applied the processes familiar in the development of unwritten law to the development of our written law, both statutory and constitutional. Carlyle said that the Roman republic was allowed so long a day because on emergencies the constitution was suspended by a dictatorship. The American republics have a right, upon this theory, to a still longer one. With them the Constitution need not be temporarily set aside on an emergency. It may simply be permanently enlarged or limited by judicial construction. A Constitution is the garment which a nation wears. Whether written or unwritten, it must grow with its growth. As Mr. Bryce has put it: "Human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government; and if the Constitution is Rigid, Flexibility must be supplied from the minds of the Judges."[Footnote: "Studies in History and Jurisprudence," 197.] The Constitution of the United States declares that no State shall pass any law impairing the obligation of contracts. This proposition being the major premise, Chief Justice Marshall added the minor premise that every charter of a private corporation is a contract, and completed the syllogism by the conclusion that no State can pass any law impairing the obligation of such charters. The counsel who opposed this doctrine urged that every one must acknowledge that neither the men who framed the Constitution nor the people who adopted it ever thought that the word "contracts," as so used, embraced "charters." Be it so, was Marshall's answer, that proves nothing unless you can go farther and satisfy the court that if they had contemplated the construction we put upon it they would have used words to exclude it.[Footnote: Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.] The acquisition of foreign territory is a matter not especially provided for in the Constitution of the United States. Jefferson hesitated to make the Louisiana purchase on this account, and was quite inclined to think, when he did make it, that he had transcended the bounds of his authority. The courts gave the Constitution a different interpretation, and stamped this upon it as permanently as if it had been a birthmark. It was done by Marshall in a single sentence. "The Constitution," he observed, "confers absolutely on the government of the Union the powers of making war and of making treaties: consequently that government possesses the power of acquiring territory either by conquest or by treaty."[Footnote: American Insurance Co. _v._ Canter, 1 Peters' Reports, 511, 542.] In the course of the same opinion, the great Chief Justice led the way toward the doctrine, to be developed later, that the manner in which such territory was to be held and its inhabitants governed need not be such as the Constitution prescribed for the territory within one of the United States. It was to be prescribed by Congress under its power "to make all needful rules and regulations respecting the territory or other property belonging to the United States." Congress had set up a Legislative Council in the Territory of Florida, and the Legislative Council had established a court of admiralty, with judges holding office for four years. The case in hand turned upon the effect of a judgment of that court. It was contended at the bar that it had no effect, because by the express terms of the Constitution the judicial power of the United States extended to all cases of admiralty jurisdiction, and must be vested in one Supreme Court and such inferior courts as Congress might ordain. "We have only," was Marshall's reply, "to pursue this subject one step further to perceive that this provision of the Constitution does not apply to it. The next sentence declares that 'the judges both of the Supreme and inferior courts shall hold their offices during good behaviour.' The Judges of the Superior Courts of Florida hold their offices for four years. These Courts, then, are not constitutional Courts in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by Congress in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the States in those Courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of a State government."[Footnote: 'American Insurance Co. _v._ Canter, 1 Peters' Reports, 511, 546.] It will be perceived that the argument here was that the Florida court did not exercise any of the judicial power of the United States because it could not, and that it could not because the judges were not commissioned for life. This left unanswered the deeper question whether any act of Congress could serve to support a court existing under authority of the United States, the judges of which were to hold office only for a term of years. It was assumed that the provision for a life tenure did not apply to the Florida judges, because if it did the court would be illegally constituted. Whether it was legally or illegally constituted was not discussed, except for the general reference to the power of Congress to legislate for the territories and exercise the rights of sovereignty over territory newly acquired by contest or treaty. On this decision has been built up our present system of governing territorial dependencies at the will of Congress.[Footnote: Mormon Church _v._ United States, 136 United States Reports, 1, 43; Dorr _vs._ United States, 195 United States Reports, 138, 141.] Marshall's was the last appointment made to the Supreme bench from the Federalist party. It was not many years before that party disappeared from the face of the earth. Jefferson put three men there representing the other school of political doctrine,[Footnote: Among Jefferson's papers is a description of five men whom he especially considered with reference to filling the first vacancy which occurred during his administration. Politics figures largely in the sketch of each. As to William Johnson, whom he selected, it is noted that he is of "republican convictions and of good nerves in his political principles." American Historical Review, III, 282.] and his appointments were followed by others of a similar nature, until in 1830, after Mr. Justice Baldwin had taken his seat, it became evident that the nationalizing tendencies which the great Chief Justice from the beginning of the century had impressed upon its opinions were likely soon to cease. He apprehended himself that the court would come to decline jurisdiction in the cases ordinarily presented over writs of error to reverse the judgments of State courts.[Footnote: Proceedings: Massachusetts Historical Society, 2d Series, XIV, 342.] In the following year he thought seriously of resigning. He disliked, he wrote to Mr. Justice Story, to leave him almost alone to represent the old school of thought, but he adds, "the solemn convictions of my judgment, sustained by some pride of character, admonish me not to hazard the disgrace of continuing in office a mere inefficient pageant."[Footnote: Proceedings Massachusetts Historical Society, 2d Series, XIV, 347.] The next Chief Justice, while far from being of Marshall's school, was not one to attempt to overthrow what he had done. In Ableman _v._ Booth,[Footnote: 21 Howard's Reports, 506.] he insisted on the supremacy of the courts of the United States over those of the States with the utmost firmness, and defended the doctrine on principle with force and ability. The Supreme Court, however, under Taney, was not looked on with much favor by the survivors of the old Federalists. "I do not," wrote Chancellor Kent in 1845 to Justice Story, "regard their decisions (yours always excepted) with much reverence, and for a number of the associates I feel habitual scorn and contempt."[Footnote: Proceedings of the Massachusetts Historical Society, 2d Series, XIV, 420.] Our State constitutions generally guarantee the citizen against deprivation of his rights without "due process of law" or "due course of law." A similar provision was made for the United States by the fifth amendment to their Constitution, and since 1868 the fourteenth amendment has established the same rule inflexibly for every State. What is due process of law? It is for the courts to say, and while they have cautiously refrained from assuming to give any precise and exhaustive definition, they have, in many instances, enforced the guaranty at the cost of declaring some statute which they held incompatible with it to be no law. They have also, and much more frequently, supported some act of government claimed to contravene it, and which, according to the ancient common law of England, would contravene it, because in their opinion this ancient law had been outgrown. Sir Edward Coke, whom no expounder of the English common law outranks in authority, in his "Institutes," in treating of _Magna Charta_, referred to the phrase _per legem terrae_, as equivalent to "by the law of the land (that is, to speak it once for all) by the due course and process of law." It is incontestable that due course and process of law in England at the time when the American colonies were planted was understood to require the action of a grand jury before any one could be put on trial for a felony. Some of our States have abolished grand juries in whole or part. To review a capital sentence for murder in one of these States, a writ of error was prayed out from the Supreme Court of the United States in 1883. The constitutionality of the State law was sustained. In disposing of the case the court did not controvert the position that by the English common law no man could be tried for murder unless on a presentment or indictment proceeding from a grand jury. But, said the opinion, while that is due process of law which had the sanction of settled usage, both in England and in this country, at the time when our early American constitutions were adopted in the eighteenth century, it by no means follows that nothing else can be. To hold that every feature of such procedure "is essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.... It is most consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.... It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law."[Footnote: Hurtado _v._ California, 110 United States Reports, 513, 528, 529, 530, 537.] Many of our State Constitutions specify certain rights as inherent and indefeasible, and among them that "of acquiring, possessing, and protecting property." What is property? American courts have said that it includes the right of every one to work for others at such wages as he may choose to accept. One of them, in supporting a decree for an injunction against combined action by a labor union to deprive non-union men of a chance to work, by force or intimidation, notwithstanding a statute abrogating the common law rule making such acts a criminal conspiracy, has put it thus: The right to the free use of his hands is the workman's property, as much as the rich man's right to the undisturbed income from his factory, houses, and lands. By his work he earns present subsistence for himself and family. His savings may result in accumulations which will make him as rich in houses and lands as his employer. This right of acquiring property is an inherent, indefeasible right of the workman. To exercise it, he must have the unrestricted privilege of working for such employer as he chooses, at such wages as he chooses to accept. This is one of the rights guaranteed to him by our Declaration of Rights. It is a right of which the legislature cannot deprive him, one which the law of no trades union can take from him, and one which it is the bounden duty of the courts to protect. The one most concerned in jealously maintaining this freedom is the workman himself.[Footnote: Erdman _v._ Mitchell, 207 Pennsylvania State Reports, 79; 56 Atlantic Reporter, 331.] But, as already suggested in the preceding chapter, the judges whose opinions have vitalized and enlarged our written law by reading into it some new meaning or application have but echoed the voice of the bar. The greatest achievements of Marshall in this direction were really but a statement of his approbation of positions laid down before him by Daniel Webster. In the early stages of the Dartmouth College case, when it was before the State courts in New Hampshire, it was Webster and his associates, Jeremiah Mason and Jeremiah Smith, both lawyers of the highest rank, who first put forward the doctrine that the charter of a private corporation was a contract; and when the cause came before the Supreme Court of the United States it fell to the lot of Webster to bring it to the attention of the great Chief Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the Florida case it was he, in supporting the cause of the prevailing party, who suggested that the Territory of Florida, though owned by the United States, was no part of them. "By the law of England," he went on to say, "when possession is taken of territories, the king, _Jure Corona_, has the power of legislation until parliament shall interfere. Congress have the _Jus Corona_ in this case, and Florida was to be governed by Congress as she thought proper."[Footnote: American Insurance Co. _v._ Canter, 1 Peters' Reports, 611, 538.] This argument did not spend its force in its effect on Marshall. When, after the lapse of two generations, greater problems of the relations of the United States to territory newly acquired from Spain arose, it was, as has been said above, made one of the cornerstones of the opinion of the same court which determined what they were.[Footnote: Downes _v._ Bidwell, 182 United States Reports, 244, 265.] So in the Hurtado case, which has been described at length, no description of due process of law was found better and none is better than that given by Webster so many years before in the Dartmouth College case. The Supreme Court of New Hampshire, from whose judgment that cause came up by writ of error, had held--and on that point its decision was final--that the change in the college charter was no violation of the bill of rights embodied in the Constitution of that state. This, following _Magna Charta_, provided (Part I, Art. 15) that no subject should be "despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers or the law of the land." _Magna Charta_ was wrung from a tyrant king. So, said the State court, this article was inserted to protect the citizens against the abuse of the executive power. When it speaks of the law of the land it means the law of New Hampshire, and that is whatever the legislature of New Hampshire chooses to enact, so long as it contravenes no other constitutional provision. Webster, in paving the way toward his claim that the charter was a contract, and, as a vested right of property, inviolable by a State, alluded to the sacredness of all rights under the guaranties to be found in our American system of constitutional government. It was not surprising that the Constitution of the United States should protect them in the way he asserted. All the States, and New Hampshire among them, had done the same in placing the great features of _Magna Charta_ in their bills of rights. What, he asked, was this law of the land by which all things were to be tried and judged? This was his answer: "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land."[Footnote: "Works of Daniel Webster," V, 486.] In the opinion by Mr. Justice Mathews in Hurtado _v._ California he observes: "It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.'" [Footnote: Hurtado _v._ California, 110 United States Reports, 516, 535.] Other instances might be mentioned, equally conspicuous, which will entitle Webster to the name given him by his contemporaries of "the expounder of the Constitution."[Footnote: See Article by Everett P. Wheeler on Constitutional Law of the United States as Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII, p. 366, and in the 27th Annual Report of the New York State Bar Association.] No one American lawyer has done as much in that direction, but there are few of the greater ones who have not done something. As, however, the glory of a battle won is for the commander of the victorious forces, so the glory of adding a new meaning to a constitution at a vital point is, with the public, always for the judge whose opinion is the first to announce it. Who announced it to him they never know or soon forget. The acknowledged possession by the judiciary of the power to interpret written law, and thus to delimit its effect, has led to a serious abuse in our methods of legislation. Statutes are often favorably reported and enacted, both in Congress and the State legislatures, which are admitted to be either of doubtful constitutionality or to contain expressions of doubtful meaning, on the plea that those are questions for the courts to settle. This has been aptly termed the method of the "_referendum_ to the courts in legislation."[Footnote: Thomas Thacher, Address before the State Bar Association of New Jersey, 1903.] It is unfair to them, so far as any question of the Constitution is concerned, since as soon as the measure is enacted a presumption arises that it is not unconstitutional. The courts will not hold otherwise without strong grounds. It comes to them with the benefit of a full legislative endorsement. It is unfair to the people, both as to questions of constitutionality and of interpretation. A statute can be so drawn as to need no interpretation, or none the outcome of which can be a matter of doubt to any competent lawyer. A legislature abandons its function when it enacts what it does not understand. The Sherman Anti-Trust Act is an instance of legislation of this character. It forbids contracts "in restraint of trade or commerce" between the States. When the bill was reported it was objected in the House of Representatives that these terms were vague and uncertain. The chairman of the committee himself stated that just what contracts will be in restraint of such commerce would not and could not be known until the courts had construed and interpreted the phrase. The real intent of those who inserted it was that it should not embrace contracts which were reasonable and not contrary to public policy. A similar term in the English Railway and Canals Traffic Act had received that interpretation in the English courts, and they supposed that our courts would follow those precedents.[Footnote: George F. Hoar, "Autobiography," II, 364.] The Supreme Court of the United States did construe it as embracing all contracts in restraint of inter-State trade, whether reasonable or unreasonable, fair or unfair.[Footnote: United States _v._ Joint Traffic Association, 171 United States Reports, 505, 570.] One of the justices who concurred in that opinion, in a subsequent case arising under the same statute intimated that on reconsideration he thought the view that had been thus adopted was wrong.[Footnote: Northern Securities Co. _v._ United States, 193 United States Reports, 197, 361.] The addition by those who drafted the bill of three or four words to make their intended meaning clear would have avoided a result unexpected by them and probably undesired, and relieved the court from deciding questions of doubtful construction involving important political considerations and immense pecuniary interests. * * * * * CHAPTER VII THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW NOT TO BE LAW Government is a device for applying the power of all to secure the rights of each. Any government is good in which they are thus effectually secured. That government is best in which they are so secured with the least show of force. It is not too much to say that this result has been worked out in practice most effectually by the American judiciary through its mode of enforcing written constitutions. How far it has gone in developing their meaning and building upon the foundations which they furnish has been made the subject of discussion in the preceding chapter. It remains to consider its office of adjudging statutes which come in conflict with their meaning, as thus determined, to be void. The idea of a supreme authority exercising the function of setting aside acts of legislative bodies which it deemed inconsistent with a higher law was familiar to Americans from an early period of our colonial history.[Footnote: See Chap. I; Dicey, "Law of the Constitution," 152; "Two Centuries Growth of American Law," 12, 19.] The charter of each colony served the office of a constitution. The Lords of Trade and Plantations exercised the power of enforcing its observance. They did in effect what, as the colonies passed into independent States with written Constitutions, naturally became the function of their own courts of last resort. The Constitution, like the charter, was the supreme law of the land. Whatever statutes the legislature of a State might pass, it passed as the constitutional representative of the people of that State. It was not made their plenary representative. Every Constitution contained some provisions restricting the legislative power. If any particular legislative action transgressed these restrictions, it necessarily went beyond the authority of the body from which it emanated. The Judicial Committee of the Privy Council, which now exercises the functions formerly belonging to the Lords of Trade and Plantations, and is in fact the same body, deals in a similar way today with questions of a constitutional character. If one of the provinces included in the Dominion of Canada should in its local legislation infringe upon a field belonging to the Dominion Parliament, this committee can "humbly advise the king" that the act in question is for that reason void.[Footnote: In July, 1903, for instance, an Act of the Province of Ontario, entitled the "Lord's Day Profanation Act," was thus declared _ultra vires_.] The Revolution found the new-made States of the Union without this safeguard against a statute repugnant to a higher law. They had enjoyed as colonies the advantage which Burke declared was an ideal in government. "The supreme authority," he said, "ought to make its judicature, as it were, something exterior to the State." The supreme judicature for America had been in England. There was now no King in Council with power to set a statute aside forthwith by an executive order. But the other function of the King in Council, that of acting as a court of appeal from colonial judgments, had been simply transferred to new hands. The State into which the colony had been converted now exercised it for itself and through her judiciary. The judgment of a court is the legal conclusion from certain facts. Unless it is a legal conclusion from the facts on which it purports to rest it is erroneous, and, if there is any higher court of appeal, can be reversed. If such a judgment depends upon a statute which justifies or forbids the act or omission which constituted the cause of action, it is legal or illegal according as this statute is or is not law. It cannot be law if its provisions contravene rules laid down by the Constitution of the State to restrict the legislative power. The court which tries the cause must meet this question whenever it arises like any other and decide it. A court of law must be governed by law. What has the form of law is not law, in a country governed by a written constitution, unless it is consistent with all which that instrument provides. The first decision of an American court bottomed on these principles was probably rendered as early as 1780, and in New Jersey.[Footnote: Holmes _v._ Walton, IV _American Historical Review_, 456.] One of her greatest statesmen, who after taking a distinguished part in framing the federal Constitution became a justice of the Supreme Court of the United States, vigorously enforced the same doctrine on the circuit fifteen years later in trying a cause turning on the unconstitutionally of a confirming act passed by the legislature of Pennsylvania. "I take it," Justice Patterson said in charging the jury, "to be a clear position that if a legislative act oppugns a constitutional principle the former must give way and be rejected on the score of repugnance. I hold it to be a position equally clear and sound that in such case it will be the duty of the court to adhere to the Constitution, and to declare the act null and void."[Footnote: Vanhorne's Lessee _v._ Dorrance, 2 Dallas' Reports, 304, 309, 316.] The accession of the Republicans to power in 1801, only to find the courts of the country controlled by judges appointed from the ranks of the Federalists, was the occasion of new attacks upon the doctrine thus laid down. It was vigorously denied by Senator Breckenridge of Kentucky, afterward Attorney-General of the United States, in the debates preceding the repeal of the Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A year later (in 1803) the question came for the first time before the Supreme Court of the United States, and the same positions advanced by Patterson were taken in what is known as the leading case upon this subject by Chief Justice Marshall.[Footnote: Marbury _v._ Madison, I Cranch's Reports, 137. See Willoughby, "The American Constitutional System," 39.] It was unfortunate that the action was one involving a matter of practical politics, in which the plaintiff sought the benefit of a commission the issue of which had been directed by President Adams at the close of his term, but which was withheld by the Secretary of State under President Jefferson. Party feeling ran high at this time. The views of Breckenridge were shared by many, and the supremacy of the judicial department, which this prerogative, if it possessed it, seemed to imply, was distasteful to a large part of the people. An eminent judge of a State court, Chief Justice Gibson of Pennsylvania, as late as 1825, in a dissenting opinion, combated at length the reasoning of Marshall as weak and inconclusive. If, he said, the judiciary had the power claimed, it would be a political power. Our judicial system was patterned after that of England. Our judges had, as such, no power not given by the common law. It was conceded that English judges could not hold an act of Parliament void because it departed from the British constitution. No more could American judges hold an act of a State legislature void because it departed from the State Constitution, unless that Constitution in plain terms gave them such a power. The Constitution of the United States did give it, political though it was, to all judges (Art. XI, Sec. 2), and a State statute which was contrary to that Constitution might therefore properly be declared void by the courts.[Footnote: Eakin _v._ Raub, 12 Sergeant and Rawle's Reports, 330.] Later in his judicial career Gibson abandoned this position, [Footnote: Norris _v._ Clymer, 2 Pennsylvania State Reports, 281.] and the ground taken by Marshall has been since 1845 universally accepted. The last official attack upon it was made in 1831, at the time when the feeling against protective tariffs was strong in the South, and South Carolina was known to be meditating opposition to their enforcement. The judiciary committee of the House of Representatives reported a bill to repeal the section of the Judiciary Act which gave the Supreme Court of the United States the right to reverse judgments of State courts that it might deem contrary to the Constitution of the United States. The report said that such a grant was unwarranted by the Constitution and "a much greater outrage upon the fundamental principles of theoretical and practical liberty as established here than the odious writ of _quo warranto_ as it was used in England by a tyrannical king to destroy the right of corporations." The House, however, rejected the bill by a very large majority. A proper regard for the coordination of the departments of government forbids courts to declare that a statute is inconsistent with the Constitution unless the inconsistency is plain. It has been judicially asserted that it must be plain beyond a reasonable doubt, thus applying a rule of evidence which governs the disposition of a criminal cause. As judgments declaring a statute inconsistent are often rendered by a divided court, this position seems practically untenable. The majority must concede that there is a reasonable doubt whether the statute may not be consistent with the Constitution, since some of their associates either must have such a doubt, or go further and hold that there is no inconsistency between the two documents. This right of a court to set itself up against a legislature, and of a court of one sovereign to set itself up against the legislature of another sovereign, is something which no other country in the world would tolerate. It rests on solid reason, but as the Due de Noailles has said, "Un semblable raisonnement ne ferait pas fortune aupres des républicans d'Europe, fort chatouilleux sur le chapitre de la puissance législative. C'est que la notion de l'�tat diffère d'une façon essentielle sur les deux rives de l'Atlantique."[Footnote: Cent Ans de République aux �tats-Unis, II, 145.] Our people have been satisfied with the interposition of the courts to defend their Constitutions from executive or legislative attack, because these Constitutions stand for something in which they thoroughly believe. President Hadley has well said that "a written Constitution serves much the same purpose in public law which a fence serves in the definition and protection of private rights to real estate. A fence does not make a boundary; it marks one. If it is set where a boundary line has previously existed by tradition and agreement, it forms an exceedingly convenient means of defending it against encroachments. If it is set near the boundary and allowed to stay there unchallenged, it may in time become itself the accepted boundary. But if the attempt is made to establish a factitious boundary by the mere act of setting up a fence the effort fails."[Footnote: Freedom and Responsibility, 30.] Americans took principles and institutions with which they had become familiar in colonial days and made their Constitutions out of them. Their attachment to what the Constitution provides goes behind the Constitution to the rock of ancient custom and precedent on which it rests, the common heritage of all the States. There is an obvious reason for the unwillingness of the judiciary to exercise the power under consideration unless in case of necessity. The legislature presumably does only what the public sentiment of the day justifies or demands. One branch of it, at least, is the direct representative of the people. To defeat the operation of a statute is therefore always presumably an unpopular thing to do, and if in any case there is known to be truth behind the presumption, it requires, as the Federalist [Footnote: No. LXXVIII.] put it, "an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution." It is seldom that an inferior court declares a statute void. The mere fact that it was enacted by the legislature imports the opinion of that body that it was within its powers; and such an opinion of a department of government is entitled to great respect. If a different, opinion is to prevail, it should ordinarily be first pronounced by the highest authority that can speak for the judicial department. So far, however, as the question of power or jurisdiction is concerned, a justice of the peace, in trying a five-dollar case, has the same authority to disregard a statute, whether it be one enacted by the State legislature or by Congress, if he deems it unconstitutional, which belongs to the full bench of the Supreme Court of the United States. If he is wrong, the only remedy is by appeal. The number of statutes which have been judicially pronounced in whole or part invalid in the United States is very large. Among the Acts of Congress which have fallen in this manner and have been made the subject of elaborate opinions may be mentioned the provision in the original Judiciary Act giving the Supreme Court of the United States greater original jurisdiction than the Constitution provided;[Footnote: Marbury _v._ Madison, I Cranch's Reports, 137.] the Act of 1865, excluding from practice in the United States courts attorneys who could not take the "iron-clad oath" that they had not supported the South in the Civil War;[Footnote: _Ex parte_ Garland, 4 Wallace's Reports, 333.] the Legal Tender Act of 1866;[Footnote: Hepburn _v._ Griswold, 8 Wallace's Reports, 603, overruled in the Legal Tender Cases, 12 Wallace's Reports, 457.] the Act of 1870, to protect the colored voter;[Footnote: United States _v._ Reese, 92 U. S. Reports, 214.] the Civil Rights Act of 1875;[Footnote: United States _v._ Stanley, 109 U. S. Reports, 3.] the Trade Mark Act of 1876,[Footnote: The Trade Mark Cases, 100 U. S. Reports, 82.] and the Income Tax Act of 1894.[Footnote: Pollock _v._ Farmers' Loan and Trust Co., 157 U. S. Reports, 429.] Fifteen others of less importance have fallen by the same sword. The Supreme Court of the United States has also set aside in the same manner, as inconsistent with the Constitution of the United States, over two hundred statutes passed by States. Of the twenty-one acts of Congress thus declared unconstitutional, the decisions as to all but two were rendered after 1830; of the State statutes all but twenty-six.[Footnote: Condensed Reports Supreme Court (Peters' Ed.), 325. note a; see also 131 U. S. Reports, ccxxxv.] The fourteenth amendment has added largely to the list of the latter since its adoption in 1868. State statutes set aside by the State courts since 1780 as in violation of their respective State constitutions number thousands. In the year from October 1, 1902, to October 1, 1903, the legislatures of forty-four States and fully organized Territories of the United States were in session and nearly 14,400 new statutes were enacted. During the same year fifty State statutes were declared in whole or part unconstitutional by courts of last resort. Three of these decisions were rendered by the Supreme Court of the United States. Five statutes of Missouri and as many of Indiana were thus set aside; three each of California, Kansas and Ohio; two each of Florida, Illinois, Mississippi, Montana, Nebraska, New York, Oregon and Wisconsin, and one each of those of Kentucky, Maine, Michigan, Minnesota, New Jersey, Georgia, South Carolina, South Dakota, Tennessee, Texas, Vermont, Washington and West Virginia.[Footnote: Bulletin No. 86, New York State Library, "Comparative Summary and Index of Legislation, 1903," 273, 281.] On the average probably as many as one statute out of every three hundred that are enacted from year to year are thus judicially annulled. The declaration by a court that a statute is unconstitutional and void is only a step in a cause. In the judgment it may not be found necessary or proper even to allude to it. But the order of the court which the judgment contains must be executed precisely as if no such statute had ever been enacted. It may, in effect, be directed against the State whose statute is pronounced void if the plaintiff complains of action taken under it which has deprived him of property and put it in the hands of public officers, or seeks a remedy to prevent a threatened wrong. The State of Ohio in 1819 passed a statute reciting that a branch of the United States Bank was transacting business there contrary to the law of the State, and imposing a tax upon it, in case it continued to do so, of $50,000 a year, to be collected by the auditor and paid over to the treasurer. The auditor subsequently sent a man to the bank who forcibly seized and carried off $98,000 in specie. This was given to the State treasurer, who kept it in the treasury in a trunk by itself. The bank sued all three for the money in the Circuit Court, setting forth all these proceedings at length. Judgment went against them and, with a slight modification, was affirmed by the Supreme Court of the United States. It was held by Marshall in giving the opinion that the statute was void; that the money had never become mingled with the funds of the State; and that they were liable for it precisely as if they were private individuals who had wrongfully seized it.[Footnote: Osborn _v._ Bank of the United States, 9 Wheaton's Reports, 738.] These proceedings awakened great feeling in Ohio, and became the subject of much criticism throughout the country by those adhering to the Democratic party. The legislature of Ohio adopted resolutions denouncing them as unauthorized by the Constitution of the United States, and directed the Governor to forward a copy to the legislature of every other State with a request for its opinion on the subject. The replies varied in tone according to the political predilections of the party then in control of the State addressed. Still closer does a court come to collision with the political sovereignty of the State when it commands a public officer to do something in violation of a statute which it pronounces void, or not to do something which such a statute requires. A striking instance of this is furnished by the power to nullify legislative gerrymanders. The Constitutions of almost every State provide that it shall be districted from time to time by the legislature for the purpose of electing certain officers or local representatives, and that this shall be so done as to make the districts as nearly equal in population as conveniently may be, and composed of contiguous territory. If a legislature undertakes to construct districts by any other rule, the courts can compel those charged with the conduct of elections to disregard it and to hold them according to the districts previously established under the former law.[Footnote: State _v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35; 17 Lawyers' Reports Annotated, 145; 35 American State Reports, 29; Board of Supervisors _v._ Blacker, 92 Michigan Reports, 638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70 Northeastern Reporter, 980.] But however necessary may be the conclusion from the premises, it can hardly be agreeable to the authors of a law which it serves to destroy. In effect, though not in theory, it subordinates one department of government to another. The practical result is to give the judiciary a superior power to the legislature in determining what laws the latter can enact. It is not a right of veto, but in a case which calls for its exercise it is an equal right exercised in a different way. In the first instance of a resort to it[Footnote: See p. 100.] the section of the New Jersey Constitution of 1776 confirming the right of trial by jury was held by the full bench of the Supreme Court to render a statute void which authorized a trial without appeal before a jury of six, on a proceeding for the forfeiture of goods brought in from British territory or the British military lines. This was an unwelcome decision to many who were interested in such seizures, and they sent in several petitions to the legislature for redress. No action criticising the judges, however, was taken by that body. Four years later the Mayor's Court of New York, in the case of Rutgers _v._ Waddington, held that an act of the legislature of that State, if given the effect which it was plainly intended to secure, would be contrary to the Constitution of the State, and therefore allowed it so limited an operation as virtually to annul it. The legislature retorted by resolutions of censure.[Footnote: Hunt, "Life of Edward Livingston," 49-51.] What was probably the second instance of the actual use of the power in question arose in 1786, out of a statute of Rhode Island passed to support the credit of her paper money of that year's issue. Any one declining to receive it in payment for goods sold at par was to be liable to a _qui tum_ action, to be tried without a jury. Counsel for a man sued in such a proceeding put in a plea that the act was unconstitutional and so void.[Footnote: Trevett _v._ Weeden. See Coxe, "Judicial Power and Unconstitutional Legislation," 234, 237.] The court, which was composed of five judges, threw out the action on this ground, treating the charter from Charles II and the long usage under it as having established trial by jury as a fundamental and indefeasible right. The General Assembly shortly afterward summoned the judges before it to account for this judgment. They appeared and stated their reasons for their conclusion, protesting also against the adoption of any resolution for their removal from office (which had been suggested) until after a formal trial. They were not impeached, but at the ensuing session, their terms of office having expired, the Assembly chose others in their place. Not far from the same time the Supreme Judicial Court of Massachusetts pronounced a statute unconstitutional, but there the legislature displayed no feeling, and at the next session unanimously repealed it.[Footnote: This, no doubt, was one of the instances of the exercise of this power referred to by Elbridge Gerry in the Federal Convention of 1787. Elliot's Debates, V, 151. It is described in Proceedings Massachusetts Historical Society, XVII, 507.] In 1808, Judge Calvin Pease of the Ohio Circuit Court was impeached for holding a law of Ohio unconstitutional. He avowed the act, and insisted that as it was a judicial one the soundness or unsoundness of his conclusions could not be inquired into as a ground of impeachment. The result was an acquittal.[Footnote: Foster, "Commentaries on the Constitution of the United States," I, 691.] Georgia was the only one of the original States which set up no Supreme Court at the beginning of its statehood. Her Constitution established (Art. III, Sec. 1) a Superior Court, and left it to the General Assembly to give it, if they thought best, appellate jurisdiction. The judges were subsequently by statute authorized to sit _in banc_ and hear appeals. In 1815, while so sitting, they declared a certain statute of the State unconstitutional and void. The legislature showed its resentment by a set of resolutions, of which the parts material in this connection read thus: Whereas, John McPherson Berrien, Robert Walker, Young Gresham and Stephen W. Harris, judges of the Superior Court, did, on the 13th day of January, 1815, assemble themselves together in the city of Augusta, pretending to be in legal convention, and assuming to themselves ... the power to determine on the constitutionality of laws passed by the general assembly, and did declare certain acts of the legislature to be unconstitutional and void; and ... the extraordinary power of determining upon the constitutionality of acts of the state legislature, if yielded by the general assembly whilst it is not given by the constitution or laws of the state, would be an abandonment of the dearest rights and liberties of the people, which we, their representatives, are bound to guard and protect inviolate; Be it therefore resolved, That the members of this general assembly view, with deep concern and regret, the aforesaid conduct of the said judges ... and they can not refrain from an expression of their entire disapprobation of the power assumed by them of determining upon the constitutionality of laws regularly passed by the general assembly, as prescribed by the constitution of this state; we do, therefore, solemnly declare and protest against the aforesaid assumption of powers, as exercised by the said judges, and we do, with heartfelt sensibility, deprecate the serious and distressing consequences which followed such decision; yet we forbear to look with severity on the past, in consequence of judicial precedents, calculated in some measure to extenuate the conduct of the judges, and hope that for the future this explicit expression of public opinion will be obeyed. In 1821 a case was argued before the Supreme Court of the United States involving the validity of a Kentucky statute passed to protect occupants of land who had made valuable improvements upon it in good faith, in case it should be subsequently proved to belong to some one else. The occupant had employed no lawyer, and it was surmised that the court would decide against him. The Governor of Kentucky called the attention of the legislature to this, and advised the employment of counsel to defend the law. The legislature responded by resolving "that they consider an adjudication, that the laws in question are void, incompatible with the constitutional powers of this state, and highly injurious to the best interests of the people; and therefore do, in the name of the commonwealth of Kentucky, and the good people thereof, solemnly remonstrate and protest against any such adjudication," but that two commissioners should be appointed "to attend the Supreme Court of the United States at the next term and oppose any decision that may be attempted to be procured from the Supreme Court, that those laws are void in such manner as they may deem most respectful to the court and most consistent with the dignity of this state."[Footnote: Niles' Register, XXI, 190, 404, 405.] The case had already been heard _ex parte_, and the court soon proceeded to give judgment that the statute in question was void. The Kentucky commissioners employed counsel, who moved for a reargument, and obtained one, but with the same result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports, 1.] The legislature at its next session discussed the opinion in the case and resolved "that they do most solemnly protest against the doctrines promulgated in that decision as ruinous in their practical effects to the good people of this commonwealth and subversive of their dearest and most valuable political rights."[Footnote: Niles' Register, XXV, 275.] They then took up two decisions of their own Court of Appeals, declaring other statutes of the State unconstitutional and void, and resolved "that in the opinion of this legislature the decision of the Court of Appeals of Kentucky in the cases of Blair against Williams[Footnote: 4 Littell's Kentucky Reports, 34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.] are erroneous, and the laws declared therein to be unconstitutional are, in the opinion of this present General Assembly, constitutional and valid acts."[Footnote: Niles' Register, XXV, 275.] The next step was to endeavor to remove the judges, but the two-thirds vote required by the Constitution to support an address to the Governor for that purpose could not be secured. At the next session, in 1824, the judges were summoned to show cause why they should not be removed. They defended their conclusions so well that the two-thirds vote of each house required by the Constitution could not be obtained. By a majority vote the court was then abolished, a new one set up by the same name, and four new judges appointed. The old court refused to recognize the validity of their proceedings. The new one assumed to organize and to do business. At the next election the question which court ought to be recognized was the dominant one. The result was that the friends of the old court gained control of the House and those of the new court that of the Senate, one of them being also chosen as the Governor. The new court now got possession of most of the papers of the old court. The latter ordered their sergeant to bring them back. The Governor made preparations to use military force to resist the execution of this order. At last, in 1826, an act was passed (Session Laws, p. 13) over the Governor's veto, declaring the acts abolishing the old court unconstitutional and void. The Governor thereupon appointed a warm champion of the new court chief justice of the old one to fill a vacancy which had occurred on that bench, and for the first time for two years the judicial establishment of the State was on a proper footing.[Footnote: Niles' Register, XXXI, 324; McMaster "History of the People of the United States," V, 162-166; "The Old and the New Court, in The Green Bag," XVI, 520.] Meanwhile both courts had been sitting and disposing of cases. New appeals from the inferior courts had been entered in the one which the appellant's counsel thought most likely to stand as the rightful authority. The judges of the inferior courts were in despair when the mandates of the Court of Appeals came down, and they were called upon to determine whether to obey them. Some held that the new court was a _de facto court_, and to be respected accordingly. The ultimate decision fell to the old court, which, after the repealing Act of 1826, held that there could be no such thing as a _de facto_ Court of Appeals so long as civil government was maintained and the _de jure_ court was in the exercise of its functions.[Footnote: Hildreth's Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky Reports, 206.] The same spirit of jealousy still occasionally manifests itself in a less outspoken but more effective fashion. If a question of political importance is likely to come before a court, it may be within the power of the legislature to prevent it by a change in its statutory jurisdiction. In this way the Supreme Court of the United States was kept from passing on the validity of the Reconstruction Acts enacted by Congress at the close of the Civil War, in a case which was actually pending. Under these Acts a Mississippi newspaper editor was arrested in 1867 by military order on account of an article which he had published reflecting on the policy of the government, and held for trial before a military commission. He appealed to the Circuit Court of the United States for the District of Mississippi for discharge on a writ of _habeas corpus_. Judgment went against him, and he appealed to the Supreme Court of the United States. The court, on August 1, held that it had jurisdiction to review the decision and to decide whether he could be tried before such a commission.[Footnote: _Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The cause was then heard on its merits and all the questions involved discussed at length, four days being devoted to it. Congress apprehended a decision that the Reconstruction Acts were unconstitutional, and before one was arrived at, during the same month, passed an act repealing the right of appeal in such cases from the Circuit Court. The purpose of this was obvious, but it was none the less effective, and the court, without deciding the case, dismissed it for want of jurisdiction.[Footnote: _Ex parte_ McCardle, 7 Wallace's Reports, 506.] A legislature whose work has been set aside by the courts as unconstitutional sometimes asks, in effect, for a reconsideration of the question by passing another law substantially of the same nature, although expressed in somewhat different terms. This is oftenest done when the decision was made by a divided court or is contrary to the weight of judicial opinion in other States. Early in the history of California, for instance, a statute was passed making it a misdemeanor to keep open any store, shop or factory, or to sell goods, on Sunday. The Supreme Court of the State held this to be contrary to the provisions in her Constitution that all men had the inalienable right of acquiring property, and that the free exercise of religious profession should be allowed without discrimination or preference. Most of the other States had similar statutes, and their courts had supported their validity. Judge Stephen J. Field, then on the California bench, dissented in a vigorous opinion.[Footnote: _Ex parte_ Newman, 9 California Reports, 502.] Three years later the legislature, unconvinced by the reasoning of the majority of his associates, passed a new Sunday law, which did not differ materially from the other, and after a few months the court overruled their former decision, on the very ground taken by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California Reports, 679.] Any dissent from a judgment setting aside a statute greatly weakens its force. It has also much less claim to public confidence if all the judges on the bench did not participate in it. In 1825, the Court of Appeals of Kentucky declined to follow a decision of the Supreme Court of the United States, which held certain statutes of Kentucky to be contrary to the Constitution of the United States.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports, 1.] The reason stated for this was that the decision was not concurred in by a majority of the court. It had been made by a majority of a quorum, but not by a majority of the whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's Kentucky Reports, 57.] After this it became the practice of the Supreme Court under Chief Justice Marshall not to give judgment in any case involving constitutional questions, unless a majority of the court concurred in opinion in regard to these.[Footnote: New York _v._ Miln, 8 Peters' Reports, 118, 122.] Several American courts have asserted the doctrine that the judiciary can disregard a statute which plainly violates the fundamental principles of natural justice, although it may not contravene any particular constitutional provisions. The English courts now claim no such power, although Sir Edward Coke, in one of his discursive opinions, very little of which was necessary for the determination of the cause, asserted that an act of Parliament "against common right and reason" could be adjudged void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's Reports, 114, 118.] So far as there was any previous judicial authority for this position, however, it is believed that it can only be found in decisions made before the Reformation, on questions arising from interference by Parliament with rights claimed under the Church of Rome. Such questions were of the nature of those arising under a written Constitution. The law of the church within its province was then accepted as a supreme law.[Footnote: Coxe, "Judicial Power and Unconstitutional Legislation,"' 147, _et seq_.] The rule laid down by Sir Edward Coke was accepted by the Supreme Court of South Carolina in two early cases,[Footnote: Ham _v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._ Middleton, _Ibid_., 252.] and has been substantially repeated in some judicial opinions in other States.[Footnote: See Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31 American Decisions, 72.] In the Supreme Court of the United States its authority was emphatically denied by Mr. Justice Iredell, near the close of the eighteenth century,[Footnote: Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874 the full court only one member dissenting, held a State statute void which authorized cities to issue bonds in aid of private manufacturing enterprises, because they could only be discharged by taxation, and to tax for such a purpose would be taking property from all for the good of one. That, said Mr. Justice Miller in delivering the opinion, "is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's Reports, 655, 664; approved in Parkersburg _v._ Brown, 106 U. S. Reports, 487, 501.] This view of the law had been forcibly, though tentatively, put shortly after he came to the bench by Chief Justice Marshall in a leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's Reports, 87.] but one in which it was not necessary to decide whether the doctrine was sound. "It may well be doubted," he observed, "whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection." The weight of American authority is in favor of the position taken by Iredell.[Footnote: Cooley's "Constitutional Limitations," Chap, VII; State _v._ Travelers' Insurance Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299; 57 Lawyers' Reports Annotated, 481.] Time has made it safer to stand upon it, for since he spoke not only have our State constitutions been generally expanded by adding important restrictions on the legislative power, but the fourteenth amendment has added to the Constitution of the United States a prohibition of State laws depriving any person of life, liberty, or property without due process of law. "Due process of law" is an elastic term. Requiring it certainly imports that no one is to be made to suffer in person or property unless he has had an opportunity to claim before an impartial tribunal the protection of his rights by the settled law of the land. The principle of Roman law that, as custom can make law, so disuse can destroy it has never been adopted in the United States. No court, therefore, will pronounce a statute not to have the force of law on the ground that it is obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840, undertook to import the doctrine into American jurisprudence, but without effect. Hill _v._ Smith, Morris' Reports, 70; explained and limited in Pearson _v._ International Distillery, 72 Iowa Reports, 357.] * * * * * PART II THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS * * * * * CHAPTER VIII THE ORGANIZATION OF THE COURTS OF THE STATES The State Constitutions differ fundamentally from that of the United States in respect to the nature of the judicial establishment. Each of the States possesses all judicial powers belonging to any sovereignty, except so far as the people of the United States may have provided otherwise in the Constitution of the United States. The State Constitutions do not define those powers. They simply commit them to certain courts and officers. Their general language is that the judicial power is vested in a Supreme Court and such other inferior courts as may be created by law. On the other hand, the Constitution of the United States defines the judicial powers of the United States exactly and within a somewhat narrow range, investing the courts of the United States with those powers and no others. Hence the States require a much more complicated and extensive judicial establishment than do the United States, for not only is the great mass of litigated cases throughout the country to be disposed of by State courts, but they must also pass upon by far the greatest variety of legal questions. In each State there is one appellate court of last resort[Footnote: See Chap. XIX.] and several courts for the trial of original causes. Local justices of the peace are commonly given jurisdiction over prosecutions for petty misdemeanors, and civil cases involving small amounts (seldom over $50 or $100), which do not affect title to land. Then come County Courts (often styled Courts of Common Pleas or District Courts), having cognizance of actions involving greater sums, and to which appeals from judgments of justices of the peace can be taken. These generally have both civil and criminal jurisdiction. A higher court, which may be styled a Superior Court, or Circuit Court, often exists, with unlimited jurisdiction as respects values in controversy, and also as to crimes, the County Courts in such case having a limited jurisdiction in these respects. Municipal courts are to be found in all considerable cities and in many of the lesser municipalities, such as towns and boroughs. City Courts often have jurisdiction over civil causes to which one residing in the city is a party, or growing out of a transaction occurring within the city, irrespective of the amount of the matter in demand. They frequently have a criminal side, before which convictions may be had for petty misdemeanors, and those charged with higher offenses bound over for trial in some court of general criminal jurisdiction.[Footnote: See Goodnow, "City Government in the United States," Chap. IX.] For the settlement of the estates of deceased persons and the appointment and superintendence of guardians and similar agents of the law, and proceedings in insolvency, there are in many States special courts, known as Courts of Probate, Surrogate's Courts, or Orphans' Courts, and Courts of Insolvency. In others these functions belong to the County Courts. The early practice in this country favored having several judges hold all trial courts, whether a jury was or was not to be called in. It was a method wasteful of time and money. In Massachusetts it survived for their highest _nisi prius_ court until 1804. In many States it endured much longer for County Courts. County Courts in some States are courts only in name, except, perhaps, for some very limited purposes. Their real functions are administrative. Some or all of those who hold them are often styled commissioners, and their principal duties are to manage the general business affairs of the county.[Footnote: See Constitution of West Virginia, Amendment of 1880; Constitution of Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903 indicates that those in that State are not fountains of law, for it requires the district attorneys in each county, or their deputies, to advise the County Courts "on all legal questions that may arise." In Virginia, County Courts for a long period were held by all the justices of the peace in the county, or such of them as might attend. These magistrates nominated their own successors to the Governor, who almost never refused to commission the person so recommended. The court also nominated the officers of militia below the rank of General, and managed all the county affairs, besides having an extensive civil and criminal jurisdiction, including the power of acquittal in cases of felony. However clumsy and ill-ordered such a scheme appears, it gave general satisfaction for a long course of years, partly from a usage on the part of the older members of the bar who might be in attendance to volunteer advice as _"amci curiae"_ whenever any doubtful question of law chanced to arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378; Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where County Courts have jurisdiction of ordinary lawsuits the judges, or a majority of them, are sometimes without any legal training, though this is now less common than it once was.[Footnote: McMaster, "History of the People of the United States," III, 154.] The Constitutions of the States generally require the existence of a Supreme Court of last resort, and often specify also by name one or more of inferior jurisdiction. Such courts stand on a firmer footing than those created by the legislature under a general power to establish inferior courts. The power to establish implies a power to limit and to destroy. A tribunal created by a Constitution, with functions defined in the Constitution, is, as to these and as to its independence of existence and action, beyond legislative control. The Republicans in Congress were within their rights when, in 1802, they repealed the act passed by the Federalists the year before to create a system of Circuit Courts. Those of Massachusetts were within theirs when, in 1811, they abolished the ancient Court of Common Pleas of that State and created a new "Circuit Court," with fifteen judges, to take its place. Both would have been glad to go farther and reconstitute in some way the court of last resort, which was filled with old Federalists. Why they did not has been frankly stated by one of them in his account of Governor Gerry's administration: With the Supreme Judicial Court the party did not interfere. In respect for the authority of the Constitution this forbearance was observed; it having been conceded after due deliberation by men having the confidence of the dominant party that neither the court nor the judges were within the power of the legislature. The result was very reluctantly acceded to, for the imposing influence of that court had been felt in the political agitation of the times, and some of the judges, like some ministers of the gospel, had been unwise enough to give to the extension of their political feelings the aid directly derived from their official authority.[Footnote: Austin, "Life of Elbridge Gerry," II, 339. See Chap. XXII.] The weakest point in this system of judicial organization is the vesting of jurisdiction of small civil causes in justices of the peace. Of these there are generally several in each town, having jurisdiction over the whole county. Some may be lawyers. None need be, and few are. Any one of them can try cases. Which of them shall try any particular case is left to be determined by the lawyer who brings it. Justices of the peace can be trusted to dispose of petty criminal prosecutions and to conduct preliminary examinations into charges of any offence for the purpose of determining whether there is ground for holding the accused for trial before a jury, although even here mischief often results from their ignorance of law, and the sufferers have little means of redress.[Footnote: See McVeigh _v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic Reporter, 701.] Such prosecutions are brought by a public officer, who will not be apt to select an incompetent magistrate, and has no strong motive for choosing one specially likely to give judgment against the defendant. But in civil cases, for the lawyer who institutes them to pick out his judge at will from a number who are equally competent to assume jurisdiction, and at the same time (as is generally the law) are left wholly without salaries, receiving nothing except fees for cases actually brought before them, is to place the defendant in a much less favorable position than the plaintiff. If the justice decides in favor of the latter, he is obviously more likely to get the subsequent patronage of his lawyer. In most justice suits judgment does go for the plaintiff, and not infrequently it is to be feared that he gets it from that consideration. Some justices rarely give any other judgment. Many lawyers bring all their cases before one justice, and seldom fail of success. In 1903, a justice of the peace in one of our largest cities resigned his office and made his reasons public. They were that no one could afford to hold it who was not willing to stoop to unworthy practices. Lawyers having a large collection practice, who were the best customers at such a shop of justice, threw their business where they could get it done most cheaply. They expected the justice of the peace whom they favored to favor them. One way was by making them a discount on his legal fees. There was a competition among the justices for business on these terms, and the lowest bidder generally got it. Blank writs of summons, even, signed by the justice would be sold at so much a dozen, to be filled in to suit the attorneys. A system in which such things are possible is inherently vicious, and only endurable because the defeated party can always appeal and have a new trial before a higher court. That relief, however, is expensive. Judgments ought to be just in the first instance, and it is the business of governments to ensure this, so far as they reasonably can. The natural remedy would seem to be to have fewer justices of the peace who are authorized to try cases and to pay them a fixed salary. Better men could thus be had and independence of action promoted. That this is not done comes mainly from the feeling that small controversies ought to be settled by a neighborhood court; that any man of good common sense can generally deal with them as well as a lawyer; and that to salary every justice would be an unreasonable burden to impose on the taxpayer. The system is also an ancient one; it works well with honest men; and the people have an inherited attachment for it. In a few States a sharp line of division is drawn between courts of law and courts of equity. This distinction was inherited from England, though it has been for most purposes abolished there by the Judicature Acts of 1873 and 1875. It originated in the royal prerogative of interposing to do justice between private individuals in cases of an extraordinary character when the regular courts had no power to grant the necessary relief. The King was accustomed to refer requests for such action on his part to his principal secretary and councillor. The next step was to address the request directly to this officer, who was styled the Chancellor. If a man were acting toward another in a way that was against good conscience, though without absolutely transgressing any settled rule of law, the Chancellor could compel him to desist. If the legal title to land had been conveyed to one for the use of another, and the holder of this title refused to recognize the beneficial interest to serve which he had been invested with it, the Chancellor could bring him to account, although the common law would give no remedy. Soon, whenever a man seemed to have justice on his side, but not law, it was deemed a case for the Chancellor, or a case in chancery. Relief was given because it was equitable to give it, and so it was called relief in equity. The jurisdiction expanded. Wherever there was a right, but no adequate remedy at law, the Court of Chancery, or, as it was oftener called, of equity, was recognized as competent to step in and do justice. The Chancellor had often been an ecclesiastic. He was apt to be more familiar with canon law and civil law than with the common law. The justice which he administered came from the Crown, not from the people. The people spoke through a jury, called in law language "the country." The Chancellor spoke for himself. If he called in the aid of a jury, it was to advise him, not, as in a common law court, to make a final decision as to the question submitted to it. The result came to be that for several hundred years, embracing the whole colonial period, England had two distinct sets of courts, acting under different rules, and each trying a different kind of cases. Those involving questions of trust, account, fraud, mistake or accident, were the principal subjects of equitable jurisdiction. Equity also could prevent wrongs, while law could only punish them.[Footnote: See Chap. XX.] It was not, however, always easy to mark the line between cases, and say which belonged in the common law tribunals and which in those of chancery. Many an action failed, not because there was no just cause of action, but because it had been brought in the wrong court. In the American colonies, and for many years in the States which succeeded them, these distinctions of procedure were generally observed.[Footnote: In Pennsylvania the courts largely disregarded them and asserted that equity was a part of its common law. See Myers _v._ South Bethlehem, 149 Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In some there were, in some there still are, separate courts of equity held by a Chancellor, aided, if necessary, by Vice-Chancellors. In others two dockets or lists of cases were (and in a number of them still are) kept in the same court, and the same judge disposed of those on one docket as a court of equity and of those on the other as a court of law. Such a system is intrinsically absurd. It has been maintained by whatever States yet tolerate it for two reasons: because the lawyers and the community are used to it, and because it furnishes a convenient test of any claim of right to a jury trial. All our State Constitutions have some provision for maintaining such rights, but they do not define the cases in which the right exists. That is left to the courts, and their rule is that it cannot be claimed in cases that call for equitable as distinguished from legal relief. In most of our States and Territories legal and equitable causes of action or defenses may now be joined, and legal and equitable relief given in one suit. This reform in procedure was largely due to the labors of David Dudley Field, and became general throughout the country during the last half of the nineteenth century. The result has been that separate courts of equity are now to be found only in a few States. Congress has made use of the State courts in certain cases as part of the machinery of the federal government. While by the Constitution "the judicial power of the United States" can only be vested in the courts of the United States, the phrase as thus used refers only to the power of judging causes in courts of record. State courts and magistrates can therefore be given jurisdiction by Congress over any acts in aid of the functions of the United States, the supervision of which may be regarded as ministerial, or as incidental to judicial power rather than a part of it. They have received it in this way with respect to such matters as seizure of deserters from a merchantman, the arrest and commitment or bail of offenders against the criminal laws of the United States, the taking of affidavits and depositions for use in proceedings before federal authorities, and the naturalization of aliens.[Footnote: Robertson _v._ Baldwin, 165 U. S. Reports, 275.] State courts also have jurisdiction over any civil action to enforce a right given by the laws of the United States, unless Congress has otherwise provided. They constitute together with the federal courts one general judicial system for the whole country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports, 130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59 Northeastern Reporter, 435.] Almost all American courts are known as "courts of record." A court of record, in modern parlance, is one which tries causes between parties and is required to keep a full official and permanent record of its disposition of them. For this purpose most courts are furnished with a recording officer, called the clerk. His record is the only evidence of their judgments and cannot be contradicted or impeached in any collateral proceeding. If there is any error in it, it can only be shown on a direct proceeding brought to correct it. Justices of the peace, when authorized to try causes, act only in small matters and in a summary way. In most States they are not, when exercising this function, deemed to constitute a court of record. Nor is any court, even though furnished with a clerk, if its proceedings are not recorded in full, but simply made the subject of brief notes or minutes,[Footnote: Hutkoff _v._ Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.] unless there is a statute or local practice giving such notes or minutes the effect of a record. A court of record has inherent power to preserve order in proceedings before it[Footnote: See Chap. XX.] and, unless other provision be made by law, to appoint a crier or other officer to attend upon its sessions. By statute it is commonly made the duty of the sheriff of the county to attend all courts of record, either personally or by deputy. He also executes such processes as under the practice of the court may be directed to him. Witnesses and jurors are thus summoned by him to appear before the court; arrests and attachments of property are made; and executions are levied to enforce final judgments. * * * * * CHAPTER IX THE ORGANIZATION OF THE COURTS OF THE UNITED STATES The Constitution of the United States (Art. III) provides that there must always be one Supreme Court of the United States. The establishment of such inferior courts as may be deemed proper from time to time is left to Congress. The judicial power of the United States is limited to cases of certain kinds or between certain kinds of parties. Either (1) the subject-matter of the action must be of a kind that concerns the whole nation, or (2) some party to it must be or claim under a political sovereign, or (3) it must be between a citizen of a State of the Union and one of another of the States or of a foreign country. In a few of the second class the Supreme Court is given original jurisdiction: in all others of both classes it has appellate jurisdiction, with such exceptions as Congress may think fit to make, save only that no fact tried by a jury can be thus re-examined, except so far as the rules of the common law would have permitted. Its original jurisdiction is confined to cases affecting ambassadors, ministers, and consuls and those to which a State shall be a party. It is not necessarily exclusive as respects any of them,[Footnote: Ames _v._ Kansas, 111 U. S. Reports, 449, 469.] and by the eleventh amendment to the Constitution is so limited as not to include suits against a State by citizens of any other State or foreign government. In point of fact, few original suits have ever been brought before the court, and almost all of these have been instituted by or against States. The Supreme Court is held at Washington. There is a Chief Justice with eight associate justices, and each is also assigned for circuit duty as a judge of the Circuit Court of the United States in one of nine judicial circuits into which the country is divided. Originally there were but six judges, and each was required to hold two circuits a year in each district in his circuit. They were assigned to the circuits in pairs, and both sat together with the District Judge. The consequence was that three-fourths of their time was spent in traveling from one court town to another. They complained of this to Congress through the President in 1792, and the next year it was provided that Circuit Courts might be held by one justice, alone or with the District Judge. In 1801, an ultimate reduction of the number to five was provided for. They were to devote their time entirely to the Supreme Court, while the Circuit Courts were to be held by a new set of eighteen Circuit Judges. In 1802, they had only ten cases pending before them, and the average for some years had not exceeded that number. For this and other reasons mentioned elsewhere the Act of 1801 was repealed by the next Congress. In 1807, another Justice of the Supreme Court was added and two more in 1837. Each circuit has a judicial establishment of its own, and is composed of a certain number of judicial districts. Of these there are in the whole United States about eighty. The smaller States constitute one district. In the larger ones there are several. Each district generally has its own judge, called the District Judge, and always its own court, called the District Court of that district. Each circuit has several Circuit Judges, whose main work is to sit in a court held in each circuit, styled the Circuit Court of Appeals. They can also hold a District Court. Until 1911, the District Courts had a narrow jurisdiction, and there were Circuit Courts having a wider one. In 1911, the Circuit Court was abolished, and the District Court now is the general trial court of the United States in the first instance. Anyone can sue there to enforce a right arising under the laws of the United States when the amount in dispute is more than $3,000. Rights arising under certain of these laws can only be enforced there, and as to them the pecuniary limitation does not apply. Such are patent-rights and copyrights. Any suit involving an amount exceeding $3,000 may be brought there when the controversy is between citizens of different States or citizens of a State and citizens of a foreign country. So may a suit by citizens of the same State claiming land under grants from different States, without respect to the value of the subject of controversy. Suits of any of these kinds which are brought in a State court may, at the option of the defendant, be transferred for trial into the District Court. On filing proper papers the case is transferred automatically. The District Court has jurisdiction also over bankruptcy and admiralty matters, a few other kinds of civil cases of minor importance, and of all offenses against the United States.[Footnote: The Judicial Code of the United States, Chapter II.] The pecuniary limit of jurisdiction was for a hundred years fixed at $500. The increase to $3,000 was due partly to the fact that the Supreme Court was overburdened by appeals from the trial courts, many of which involved small amounts, and more to a desire to keep judicial power over ordinary controversies between man and man, as far as practicable, in the hands of the State courts. Early in the nineteenth century a practice began of bringing suits in the Circuit Court of the United States, which purported to be between citizens of different States, but in which the plaintiff had either changed his residence for the purpose of giving the court jurisdiction or was really suing for the benefit of a citizen of the same State with the defendant. This was due to the high opinion entertained of the federal judiciary[Footnote: Niles' Register, XXIX, 14.] and the desire to bring the cause before a federal, rather than a State tribunal. Such a mode of proceeding, while within the letter of the governing statute, was contrary to its spirit, and little better than a fraud. It was also an evident perversion of the intent of the Constitution, and became at last so far-spreading that both Congress and the courts used their best endeavors to put an end to it, and with success.[Footnote: U. S. Statutes at Large, XVIII, 470; Hawes _v._ Oakland, 104 U. S., 450, 459.] Another cause is also effective in lessening the docket of the District Courts. The ordinary lawyer prefers to sue in a State court, when he has the choice, on account of his greater familiarity with the practice there. Many American lawyers have never brought an action in a federal court. Most cases which could be so brought can also be and are brought in a State court. Congress has thus far maintained for the federal courts the ancient distinction between procedure in law and in equity explained in the preceding chapter. There are those who claim that the reference in Art. III, Sec. 2, of the Constitution of the United States to "cases in law and equity" requires its preservation; but this seems a strained construction of the phrase. Separate dockets are kept in the District Court of legal and of equitable actions. They are brought in different form, tried in a different way, and disposed of by different rules, though by the same judges and at the same term of court. As to equity cases, the rules of the old English chancery practice are substantially followed. In cases of a common law nature, the practice existing at the time in regard to those of a similar kind in the courts of the State within which the federal court may be held is to be followed, as nearly as may be.[Footnote: U. S. Revised Statutes, § 914.] In fact, there is a departure from it in many points in most States,[Footnote: See Nudd _v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in those which have reformed their procedure in civil actions by fusing remedies at law with those in equity. If an action framed in this method be removed from a State court to a federal court, the plaintiff must thereupon split it in two, and present his case at law on one set of papers and his case in equity on another. The Supreme Court, under power derived from acts of Congress, has framed rules of procedure for the inferior trial courts of the United States in equity and admiralty cases, and the latter courts have supplemented them by further rules of their own making. The Equity Rules promulgated by the Supreme Court were revised in 1912, and took effect as changed in 1913.[Footnote: They are printed in Volume 226 of the United States Reports.] They greatly simplify the former procedure. Suits are now tried generally on oral testimony taken stenographically in open court. Formerly the evidence was usually given before officials known as examiners or masters in chancery. The former reported the testimony at length to the trial court. The latter reported their conclusions from it. The new rules have abolished demurrers in equity causes in favor of what is substantially the present English practice.[Footnote: See _infra,_ page 203.] In common law causes in the District Court, the State remedies by way of attaching the property of a defendant to respond to a judgment, or seizing it on execution, or imposing a lien upon it by a judgment, are adopted and enforced.[Footnote: U. S. Rev. Stat., §§ 915, 916, 967, 988.] The field of national legislation being narrow, the offenses against the nation are correspondingly few. Any acts done on lands ceded by a State, which would have been crimes under its law in 1873, may be punished as such in the federal courts in the same manner which that law provided.[Footnote: _Ibid_., § 5391.] In the Circuit Courts, before 1866 it was customary to defer the trial of important causes until the Justice of the Supreme Court assigned to the circuit could be present. If he differed on any material point from the District Judge, this point could be certified up to the full Supreme Court for argument and decision there. During this period the published reports of the decisions of the Circuit Court contain many opinions of the highest value. Several of the best which Story and Bushrod Washington wrote are to be found among them. The Act of 1866, by which a resident Circuit Judge was appointed for each circuit, provided notwithstanding that each member of the Supreme Court should attend at least one term of the Circuit Court in each district as often as once in two years. The press of business at Washington, however, soon became such as to make it practically impossible for the Supreme Court Justices to do any substantial circuit work. When some case of national importance was to be heard in any district, the Justice in whose circuit it was included would make a special effort to go down. In this way Chief Justice Chase heard and sustained the plea with which Jefferson Davis met the indictment against him for treason. But ordinarily the Circuit Judge took the place of the Supreme Court Justice, and the latter, if he appeared at all during the term, remained hardly for a day. The Supreme Court, therefore, during over a hundred years remained the only court of the United States existing mainly for appellate purposes. The work which it had before it at the last term during which it occupied this position (October Term, 1890) will show how much it was then overburdened. Its docket contained 1,177 appeals brought forward by continuance because they could not be disposed of at the preceding term, 623 new cases of the same kind, and 16 cases of original jurisdiction, making a total of 1,816 actions. Of these, although the term lasted nearly eight months, it was only able to dispose of 617, thus leaving 1,199 for continuance to the following term.[Footnote: 140 U. S. Reports, Appendix.] It will be observed that the court was no longer able to cope with its new business, not to mention that left over from previous years. Appeals now lie in most civil cases from the final judgments of the District and Circuit Courts, and from convictions for infamous crimes, not capital, to the Circuit Court of Appeals. They also extend to judgments granting a temporary injunction. There is a court of this name for each of the nine circuits, which was established in 1891 for the further relief of the Supreme Court and the speedier termination of litigation. This measure originated in the American Bar Association, by which it was pressed upon the attention of Congress. It had become an absolute necessity to devise some plan of expediting the disposition of appeals from the trial courts of the United States. There was more than enough of such business by the close of the Civil War (the events attending which brought up for decision many novel questions of the highest importance) to require the entire attention of the Supreme Court. It soon took three years after an appeal was docketed before it could be reached for argument. This was intolerable, and it was obviously necessary either to restrict the liberty of appeal; to constitute divisions of the court, one to hear appeals of a certain class and another those of another class; or to set up an intermediate court. The last method was preferred. The practice in the Circuit Court of Appeals is governed by rules of its own making, but in general conforms to that of the Supreme Court of the United States in appealed cases. The commission appointed some years since to prepare a revision of the laws of the United States have reported in favor of abolishing all jurisdiction of the Circuit Court over original cases and turning it into an appellate court.[Footnote: Senate Doc. 68, 57th Congress, 1st Session.] Should this recommendation be adopted, the District Court would acquire the jurisdiction now vested in the Circuit Court, the District Judges would sit in the District Court only, and the Circuit Court Judges in the Circuit Court only, while the Circuit Court of Appeals would come to an end. The American Bar Association voted in 1903 that it was desirable to establish a new appellate court to sit at Washington and take cognizance of patent and copyright cases. Such a measure would tend to relieve the Supreme Court of the United States of any undue pressure of business, and promote both uniformity and promptitude of decision in a class of actions in which promptitude and uniformity are of special importance. As things stand now, a patent may be pronounced invalid in one circuit and upheld in another by courts of equal authority; and while in such event the Supreme Court would probably, on a special application, call both these judgments up before it for review, this remedy cannot be claimed as a matter of absolute right, and is at best a slow one. The Circuit Court of Appeals is held by three judges, two constituting a quorum. Those generally sitting are the Circuit Judges belonging to the circuit. The Justice of the Supreme Court assigned to the circuit may also sit, and any of the District Judges in the circuit can be called in. Except in a very limited class of cases, the decision of this court is final, unless the Supreme Court, on special application, should think the questions involved to be of sufficient importance to require a review, when it can order the record sent up to Washington for that purpose. The Circuit Court of Appeals can also of its own motion certify up any questions in a cause to the Supreme Court for its instructions before making a final disposition of it. The Supreme Court has direct appellate jurisdiction over the District and Circuit Courts in cases turning on the limits of their jurisdiction, in prize causes, in equity suits by the United States under the statutes regulating inter-State commerce, and in all cases involving the construction or application of the Constitution of the United States, or of a treaty. Appeals also lie to it from judgments of conviction in the Circuit Court for capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32 _ib_. 823.] The consequence of the Circuit Courts, which had been impaired by the practical withdrawal of the justices of the Supreme Court, was further lessened by the creation of the Circuit Court of Appeals. Before that their judgments in most cases were final. In criminal causes there was no appeal, and in ordinary civil causes none after 1875, unless the matter in controversy exceeded $5,000 in value. This left the life, liberty and property of the citizen top much in the hands of one man; and the people, led by the bar, insisted on stripping him of powers so liable to abuse.[Footnote: See an attack on a similar state of things existing in Louisiana at one time in the District Court, by Edward Livingston in 1826. Hunt, "Life of Edward Livingston," 302, 303.] No sovereign can be sued in his own courts without his consent. The United States consent to be sued on most claims against them of a contractual nature, which they may dispute. For this purpose a Court of Claims has been established at Washington, consisting of a Chief Justice and four associates. Originally it was little more than an administrative bureau; but by successive amendments of the law it has come to have fully a judicial character,[Footnote: United States _v._ Klein, 13 Wallace's Reports, 128, 144; 24 U. S. Statutes at Large, 505.] except in one particular. It is a general principle that a court will make no decree that it cannot enforce. The Court of Claims cannot issue an execution to enforce its judgments. Money can be drawn from the treasury of the United States only to meet appropriations made by Congress. An appropriation is made by each Congress of a gross sum to satisfy any judgments that have been or may be rendered by the Court of Claims; but should this provision be omitted in any appropriation bill the judgments of the Court of Claims could not be collected. Concurrent jurisdiction in these respects is given to the District Court of claims not exceeding $1,000 in amount, and to the Circuit Court of those exceeding $1,000 and not exceeding $10,000. Aliens can sue in the Court of Claims when their own country accords a similar privilege in its courts to citizens of the United States.[Footnote: U. S. Revised Statutes, § 1068.] This court has also a peculiar kind of advisory jurisdiction. Congress, or any committee of either house, can refer to it any questions of fact which may have come before them. The judges must then ascertain the facts and report them back. The head of any of the great executive departments may, in like manner, in dealing with any claim against the government, if the claimant consents, refer any uncontroverted questions, either of fact or law, to the court, which must then report back to him its findings and opinion. This does not take the form of a judgment, for there is no case and no parties are before it. It is a mere expression of opinion, and stands on much the footing of the report of a committee of inquiry to a superior authority.[Footnote: 22 U. S. Statutes at Large, 485; 24 _id._, 507.] A temporary court is also in existence called the Court of Private Land Claims. This is composed of a Chief Justice and four associate justices, and has jurisdiction to hear and determine claims of title to land as against the United States, founded on Spanish or Mexican grants in New Mexico, Arizona, Utah, Nevada, Colorado or Wyoming. An appeal from the final judgment is given to the Supreme Court of the United States.[Footnote: 26 U. S. Statutes at Large, 854.] The District of Columbia has a special judicial establishment. There is a court of general jurisdiction known as the Supreme Court of the District of, Columbia, and appeals from its judgments lie to the Court of Appeals of the District of Columbia. This is composed of a Chief Justice and two associate justices, and its judgments are reviewable by the Supreme Court of the United States, if $5,000 is involved, or the validity of an authority exercised under the United States or a treaty or Act of Congress is in question. An appeal also lies to it from decisions of the Commissioner of Patents as to claims of a right to a patent.[Footnote: 27 U. S. Statutes at Large, 434.] When new territory comes by conquest or cession permanently under the jurisdiction of the United States, it belongs to the President, in the exercise of his executive power, to see to its proper government until Congress makes other provision. He can institute courts there for that purpose, or if he finds courts created by the former sovereign in existence, can expressly or impliedly permit them to continue in the exercise of judicial functions. Each fully organized Territory has a set of local courts and one Supreme Court to which appeals can be taken and the judgments of which, in cases of large pecuniary magnitude or great legal importance, can be reviewed by the Supreme Court of the United States. These territorial courts do not exercise what is known in the strict sense and designated in the Constitution as "the judicial power of the United States." They are created to meet temporary conditions, and with judges whose commissions run only for a few years. Such courts are instruments through which Congress exercises its power of regulating the territory of the United States. They act judicially. They have judicial power. But the source of this power is not the clause in the Constitution under which the judicial power of the United States is defined.[Footnote: American Insurance Co. _v._ Canter, 1 Peters' Reports, 511.] It is therefore not necessary to confine such courts strictly to the consideration of judicial business. In the organization of our earliest Territories the judges were given legislative functions, and while this was originally due to the terms of the Ordinance of 1787, it was confirmed by various Acts of Congress after the adoption of the Constitution of the United States. The Philippines are governed under an Act of Congress by a commission acting under the supervision of the Secretary of War. The organization of courts established by Spain has been in substance preserved. The Spanish law which was in force there was expressed in codes mainly founded on those framed for France under Napoleon I. In 1901, the Spanish code of civil procedure was supplanted by one prepared by a member of the Philippine Commission, and which is now familiarly known by his name as the Ide Code. In substance, it establishes the mode of proceeding in civil cases which is known in the United States as code pleading. Trial by jury has not been introduced into the Philippines either in civil or criminal causes, and need not be.[Footnote: Dorr _v._ United States, 195 U. S. Reports, 138.] In criminal causes, the Spanish system was originally retained, allowing either party, the United States or the defendant, to appeal from the judgment of the court of first instance to the Supreme Court of the islands and have there a new hearing both as to fact and law. This, however, so far as concerns an appeal by the government, was held to be contrary to the Act of Congress under which it was constituted.[Footnote: Kepner _v._ United States, 195 U. S. Reports, 100.] The courts of the United States are generally provided with an officer styled a marshal. He executes their process, attends their sessions, and exercises in general the functions which belong to a sheriff as respects State courts. Each District Court appoints a convenient number of District Court Commissioners, who issue warrants of arrest on criminal proceedings, take bail, inquire whether there is probable cause to hold the accused to answer to the charge in court, and discharge in such respects substantially the functions generally belonging to justices of the peace in the States. * * * * * CHAPTER X RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES AND OF THE UNITED STATES JUDICIARY TO THE STATES Every judicial officer of a State is required by the Constitution of the United States to bind himself by oath or affirmation to support it, and this obligation compels him to respect every Act of Congress made in pursuance of the Constitution, and every treaty made under the authority of the United States, as, in case of conflict, superior to anything in his State Constitution or laws. The courts of the national government are complementary to those of the States. Both belong to one judicial system. Rights arising under the laws of the United States may be enforced by a State court as well as by a federal court, and rights arising under a State law by a federal as well as by the State court, unless in cases where there is some special restriction upon its jurisdiction. Such a restriction may be imposed by either government, as respects any right which it creates. The judicial power of the United States extends only to certain classes of cases. As to some of these it is necessarily exclusive: as to any of the rest Congress can make it such.[Footnote: The Moses Taylor, 4 Wallace's Reports, 411, 429.] On the other hand Congress may assume to invest a State court with power to dispose of a certain matter of federal right, and the State may decline to permit the exercise of such a power. The United States cannot in that manner compel the courts of another government to do their bidding. It would tend to throw on the States a greater burden than they might deem necessary or proper. They provide courts to meet the wants of those looking to their own sovereignties for justice. Thus, although nothing could seem more anomalous than for one sovereignty to confer citizenship in another, the laws of the United States allow naturalization to be obtained by proceedings in State courts. Most aliens who become citizens of the United States do so in that way, because the State courts are more easy of access. But a State can at any time restrict or forbid the use of its courts for such a purpose.[Footnote: Stephens, petitioner, 4 Gray's (Mass.) Reports, 559; State _v._ Judges, 58 N. J. Law Reports, 97; 32 Atlantic Reporter, 743.] The federal courts can lend their aid to carry into effect a right arising wholly from the statute of a State, even if it affect maritime interests and must be enforced, if at all, through an admiralty court. Admiralty suits, it is true, can only be brought in the courts of the United States, but that is the very reason why, if such a suit gives the only remedy, jurisdiction of it should be entertained in the only sovereignty competent to give relief.[Footnote: The Lottawanna, 21 Wallace's Reports, 558, 580.] There are many civil cases which can be brought, at the option of the plaintiff, either in a court of the United States or in a State court. Some of these, if brought in a State court, the defendant can, at his option, allow to remain there or remove for trial into the Circuit Court of the United States. Criminal prosecutions by a State may also be removed, under certain conditions, to the Circuit Court of the United States, when the defense is one arising under the laws of the United States. In any cause tried in a State court, if the decision turns on a claim of right, set up under the Constitution, laws or treaties of the United States, and is against its validity, the losing party, if unable to secure its reversal by appeal to a higher court of the State, can ask such relief from the Supreme Court of the United States. It will be observed that it is the losing party only who has this remedy. If the State court decides, however erroneously, that the claim of a federal right is well grounded, this is conclusive as respects the controversy in that suit. If all State courts in which the validity of an unconstitutional Act of Congress was contested should uphold it, the courts of the United States would be powerless to right the wrong, unless they were called upon to enforce the statute in some suit brought before them for original trial. The obvious object of the limitation is to preserve so far as is possible the sovereignty of the States. The courts of the nation are to set aside acts or judgments flowing from that only in case of necessity and to preserve rights flowing from the sovereignty of the nation. For the same reasons, resort can be had to the Supreme Court of the United States only after every right of review given by the laws of the State has been exhausted. Usually this requires one who loses his cause in a trial court to take it up to the State court of last resort. Where, however, this is not permitted by the State law, he may ask for a writ of error from the Supreme Court of the United States to whatever court was the highest to which he was able to remove it; and if, by the State law, he was unable to appeal at all, then the writ will go to the trial court. One of the greatest of Chief Justice Marshall's great opinions was rendered on a writ of error to the quarterly session court for the borough of Norfolk in Virginia, held by the mayor, recorder, and aldermen of the borough.[Footnote: Cohens _v._ Virginia, 6 Wheaton's Reports, 264.] It was the opinion of Hamilton that an appeal might be given from the State courts to the inferior federal courts, in case of a decision turning on a right claimed under the Constitution or laws of the United States.[Footnote: _Federalist_, No. LXXXII.] This is probably true, but Congress has wisely forborne to make any such provision. It imposes a strain sufficiently great on the sovereignty of a State to subject the judgments of its court of last resort to reversal by the Supreme Court of the nation. The power to declare a statute void because inconsistent with constitutional provisions belongs to every court in every case in which such a statute is relied on either to support the action or in defense.[Footnote: See Chap. VII.] It therefore belongs, as respects a State statute which may be attacked as inconsistent with the Constitution of the United States, to the trial courts of the United States as well as to the Supreme Court. This makes it possible for a District or Circuit Court of the United States to adjudge the statute of a State in which it sits to be unconstitutional and void, although it may have been declared valid by a judgment of the highest court of the State, from which no appeal to the Supreme Court of the United States was ever taken. However derogatory to the sovereignty of the States the possession of such authority may seem and be, it is evidently a necessary feature of our dual system of government. In some way it was indispensable to provide for maintaining the full powers of the United States against encroachments by State legislation, and also for enforcing all the special limitations on the powers of State legislation which the Constitution of the United States lays down. This could have been done effectually in but two ways: either by giving to Congress or to the President a veto upon State laws; or by leaving the right of control to lie dormant until a necessity for exercising it should arise, and then putting it in the hands of the judiciary. The latter method was clearly open to the least objection.[Footnote: See Hamilton's discussion on this point in the _Federalist_, No. LXXX.] Jefferson maintained that there was a third, and one which the Constitution expressly provided. This was the calling of a convention of all the States for proposing amendments to it. If, he said, a State on the one hand by her highest authorities asserts a certain line of action to be within her powers, and the United States by their highest authorities deny it, "the ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs."[Footnote: Letter to Mr. Justice Johnson, Tucker, "Life of Thomas Jefferson," II, 455.] There seems a plain fallacy in this proposition. The question to be decided, in case of a conflict of judicial authority, is not which doctrine ought to be adopted, but which was adopted when the Constitution was framed. To amend that instrument and make it something else could not justly be allowed to alter the effect of acts previously done. But one serious proposition has ever been made to call a national constitutional convention for any such purpose. That was by Kentucky in January, 1861, when civil war was threatened; and it was not pressed. The very delays which would be inevitable in assembling such a body were then a reason for the call, for they would give time for the "sober second thought." The plan, however, seemed and probably was impracticable. The movement toward secession had gone too far.[Footnote: Debates and Proceedings of the National Peace Convention, 45, 61, 67.] There were many, at the time when the Constitution of the United States was before the people for ratification, who feared that the jurisdiction of their courts would be extended by judicial construction beyond the limits of the grant. New York in her vote of ratification incorporated a declaration that she understood it to be impossible that the jurisdiction of any court of the United States could ever be enlarged "by any fiction." In the Maryland Convention, this sentiment took shape in a proposed amendment to the Constitution adopted by a committee appointed for the purpose, but never reported, "that the Federal courts shall not be entitled to jurisdiction by fictions or collusion."[Footnote: Elliot's Debates, 550; Proceedings Massachusetts Historical Society, XVII, 504-7.] Had such an amendment been proposed and adopted, it would have cut off a large share of the most important cases now brought before the Circuit Courts. In 1787, there were only twenty-seven business corporations in the United States.[Footnote: Report of the American Historical Association for 1902, 267; _American Historical Review_, VIII, 449.] It was not long before they became countless and the large affairs of the country were in their hands. Could they sue and be sued in the courts of the United States? The decision on this point was that, by force of a pure legal fiction, invented for the purpose, they might be. They were, indeed, not citizens of any State;[Footnote: Paul _v._ Virginia, 8 Wallace Reports, 168.] but the persons who composed them probably were. Therefore, it must be assumed that they certainly were, and also that they were all citizens of the same State and that the State from which incorporation was obtained.[Footnote: Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports, 286.] Sir Henry Maine maintained that legal fictions were the rude device of early stages in government, and to add to them disturbed the symmetry of a legal system and was unworthy the approval of modern courts.[Footnote: Ancient Law, 26.] But while they are among the things that it is hard to justify on principle, it is harder to dispense with them in actual practice, as the instance given conspicuously illustrates. Although the United States are the only depositary of the power of ordering foreign relations, foreign governments are often aggrieved by acts of the courts of a State which the United States have but imperfect means of preventing or rectifying. In 1841, we were brought to the verge of war with Great Britain by an incident of this nature. An insurrection broke out in Canada in 1837, and a New York steamboat was chartered to bring supplies across the Niagara River to those engaged in it. One night when she was moored on the New York side of the river a party of loyal Canadians seized and burned her. During the accompanying affray an American was killed. A Canadian named McLeod, who was charged with having fired the fatal shot, was afterwards arrested in New York and indicted for murder. The British government then informed ours that it had ordered the burning of the steamer, and thereupon demanded McLeod's release. Our Secretary of State replied that the prosecution was in the hands of the State of New York, and the United States had no control over it. Lord Palmerston made the affair the subject of a dispatch, in which he stated that McLeod's execution would produce "a war of retaliation and vengeance." The President at once requested the Governor of New York to order a discontinuance of the prosecution. This was declined, but with a promise to grant a pardon in case of conviction.[Footnote: Lothrop, "Life of William H. Seward," 35.] The State courts refused to discharge the prisoner. He was tried on the original charge, but acquitted. Congress in 1842 did what it could to prevent the recurrence of such a conflict of authority by passing an Act giving the Circuit and District Courts of the United States jurisdiction on _habeas corpus_ proceedings in favor of foreigners held by State authority, who might claim a right of release under the principles of international law.[Footnote: U. S. Revised Statutes, § 762.] The Circuit Court has since 1875 been given power to entertain original jurisdiction of any causes arising under the Constitution, laws or treaties of the United States, regardless of the citizenship of the parties, if a value of $2,000 is involved. In all cases, also, of imprisonment by State authority, whether under arrest before trial or after a sentence of conviction, in violation of rights claimed under the Constitution, laws or treaties of the United States, the prisoner may now be summarily discharged on a writ of _habeas corpus_ by a court or judge of the United States. Ordinarily, however, as a matter of comity, he will be left to seek his remedy in the State courts, and if without success there, on a writ of error from the Supreme Court of the United States.[Footnote: _In re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117 U. S. Reports, 241.] The State courts have no power to release on _habeas corpus_ one who is held under the authority of the United States. If that authority has been illegally exerted, his remedy is in the federal courts alone.[Footnote: Ableman _v._ Booth, 21 Howard's Reports, 506.] The cases in which a State can be sued in an original suit in the Supreme Court of the United States are defined in the Constitution and, as limited by the eleventh amendment to it, are quite few. Several such actions have been brought. In the earlier ones, the State declined to recognize the jurisdiction of the court and did not enter an appearance. The court thereupon decided to proceed _ex parte_ on hearing the plaintiff;[Footnote: See New Jersey _v._ New York, 5 Peters' Reports, 283; U. B. Phillips, "Georgia and State Rights;" Report of American Historical Association for 1901, II, 83.] and in the later cases the States have appeared and made defense. The court, in one of these suits, was asked to issue an injunction in favor of the Cherokee Indians against the State of Georgia to prevent her and her Governor, judges and other officers whatsoever from enforcing certain of her statutes which were alleged to be unconstitutional. The case went off on another point, but the majority of the court intimated it to be their opinion that no such injunction could properly issue against a sovereign State. Marshall thought it savored "too much of the exercise of political power to be within the proper province of the judicial department." Mr. Justice Johnson said that it was an attempt to compel the President of the United States, and by indirection, to do what he had declined to do on the plaintiff's application to him; namely, "to declare war against a State or to use the public force to repel the force and resist the laws of a State."[Footnote: Cherokee Nation _v._ Georgia, 5 Peters' Reports, 1, 19, 29.] It would be no easy thing to enforce a judgment against a State should it resist. Hence the Supreme Court has been justly reluctant ever to make any order which would take money out of a State treasury, unless in cases where the Treasurer was individually sued, and the money in dispute was not mingled with other public funds. In 1794, four years before the adoption of the eleventh amendment, a judgment against the State of Georgia, authorizing an assessment of general money damages against her, had been entered in the Supreme Court in favor of one Chisholm, to whom she owed a debt. Georgia had refused to enter an appearance in the suit, and in anticipation of this result her House of Representatives had resolved, in 1793, that if any Federal marshal should attempt to levy an execution on such a judgment against the State, it should be a felony, and on conviction he should be hanged. The Senate had not concurred in this measure, but it reflected pretty closely the general state of public feeling in a State largely indebted for what her people thought it belonged to the United States to pay. The eleventh amendment was proposed by Congress during the term of court at which judgment was entered, but not adopted until 1798. Meanwhile, the court had thought best to defer further proceedings, and none were ever taken afterwards. The plaintiff therefore won a barren victory.[Footnote: U. B. Phillips, "Georgia and State Rights," Report of American Historical Association for 1901, II, 25.] The appellate jurisdiction of the Supreme Court of the United States over States is large, for the State is the party in whose name all criminal prosecutions in its courts are brought, and in many of these the defendant sets up some claim under the laws of the United States which is overruled. Here again, in case of resistance, it would be difficult to enforce a judgment of reversal. Shortly before the action of the Cherokee Nation for an injunction, the Georgia courts had sentenced Corn Tassel, one of the tribe, to death for murdering another of them. Tassel had claimed that by the laws of the United States and their treaty with his nation he could only be prosecuted before one of his tribal courts. He obtained a writ of error from the Supreme Court to review his case on this ground. It was served, but before it could be heard the day set for his execution had arrived. By the laws of the United States the allowance of the writ of error superseded the sentence until the appeal should be decided. The Governor laid the matter before the legislature, saying that he did not propose to regard any orders from the Supreme Court interfering with those of Georgia courts, and should resist any attempt to enforce them with all the forces at his command. The legislature approved his position,[Footnote: U. B. Phillips, "Georgia and State Rights," Report of American Historical Association for 1901, II, 77.] and Tassel was hanged on the day originally set.[Footnote: "Memoirs of William Wirt," II, 291.] There had been no time to resort again to the Supreme Court for relief, and as soon as he was dead his writ of error fell with him, for such a proceeding is legally terminated if the plaintiff in error dies. Two years later, Rev. Mr. Worcester, a missionary who had gone to teach the Christian religion to the Cherokees, was convicted in the Superior Court of Gwinnet County on an indictment for residing among them without a license from the State, and sent to the State prison. He appealed to the Supreme Court of the United States, which decided that Georgia had no jurisdiction over the Cherokee reservation, and could not require such licenses. The judgment against him was therefore reversed, and an order made "that all proceedings on the said indictment do forever surcease; and that the said Samuel A. Worcester be and hereby is henceforth dismissed therefrom, and that he go thereof quit without day, and that a special mandate do go from this court to the said Superior Court to carry the judgment into execution."[Footnote: Worcester _v._ Georgia, 6 Peters' Reports, 515, 596.] The Superior Court of Gwinnet County paid no respect to this mandate; the Governor of Georgia characterized it as an attempt at usurpation which he should meet in a spirit of determined resistance; and Worcester remained in prison until, on expressing his willingness to abandon any further efforts for his discharge by authority of the judgment on his writ of error, the Governor gave him a pardon on condition of his leaving the State. A year later, James Grady, who lay under a sentence of death under proceedings similar to those in Tassel's case, like him obtained a writ of error from the Supreme Court of the United States and had it served on the Georgia court, only to find it disregarded. His execution, in spite of the _"supersedeas"_ which goes by law with every such suit, was the last of this series of judicial outrages.[Footnote: "Georgia and State Rights," 83.] It was unfortunate for the sufferers in these proceedings that they took place at a time when the cry of "State Rights" was particularly loud and general in the South. South Carolina had been quieted with difficulty by Jackson's action in regard to her nullification ordinance, and he did not wish to go farther than he thought it necessary in insisting on the supremacy of the United States. Since the Civil War, such defiance by a State of the authority of the Supreme Court of the United States has been unknown and would be almost inconceivable. The absolute right of the Supreme Court of the United States to pronounce finally, so far as the States are concerned, upon every question brought before it as to the meaning and effect of the national Constitution, has come to be universally acknowledged. The courts of a State have the same right, except that it is not final. This the original Judiciary Act of 1789 (Sec. 25) fully recognized. Something like it may belong to a Convention of the whole people of a State, called to act upon its fundamental concerns; for that would represent the sovereignty of the State as a whole in the fullest manner. It was from such a convention that the nullifying ordinance of 1832 proceeded, but the vice of its action was, not so much that it pronounced the protective tariff Acts unconstitutional and void, but that it assumed to deny any right of appeal in litigation growing out of these Acts and the Ordinance of Nullification, from the courts of South Carolina to the courts of the United States. This liberty of appeal in the regular course of judicial procedure is the one thing which keeps the United States in existence. The law governing the ordinary transactions of life is that of the State where they may have their seat. This was affirmed in the original Judiciary Act,[Footnote: U. S. Revised Statutes, § 721. As "equity follows the law," State legislation creating new equitable rights or varying those formerly established also affects causes in equity in the Federal courts. Brine _v._ Insurance Co., 96 U. S. Reports, 627; but see James _v._ Gray, 131 Federal Reporter, 401.] as a general rule for the courts of the United States in trials at common law. By another Act of Congress,[Footnote: _Ibid_., § 914.] the practice, pleadings, and form and mode of proceeding in civil causes, other than those of equity and admiralty jurisdiction, in the Circuit and District Courts are to conform as nearly as may be to that followed in the State within which these courts may be held. The State laws which are thus made a rule for the United States courts are the law of the State as it is understood and applied in its own courts. Hence the construction of a State statute, or the doctrines of the common law in a particular State, if definitely settled by the courts of that State, must be followed in subsequent litigation in the federal courts. Where, however, a State court has taken a certain position as to what the law is, and afterwards changes its position, the federal courts are not compelled to change with it, if this would do injustice to one who has meanwhile acted on the faith of the original ruling.[Footnote: Burgess _v._ Seligman, 107 U. S. Reports, 20, and see argument of Daniel Webster in Groves _v._ Slaughter, 15 Peters' Reports, 449, 489.] Nor are the federal courts, in large questions of a commercial nature, bound always to accept the opinion of a State court as to what the common law of the State may be. The manner in which this doctrine has been evolved is an interesting example of the manner in which law develops by litigation, and new points are struck out in a single case as the joint product of lawyer and judge.[Footnote: See Chaps, XVII, XVIII.] A bill of exchange drawn in Maine on one Tyson, a merchant in New York, and bearing his acceptance, was indorsed over to one Swift, who took it in good faith before it fell due, in payment of a pre-existing debt. He sued Tyson upon it in the Circuit Court of the United States in Maine. If his rights were as good as if he had paid value for it at the time he received it, he was entitled to recover. If not, his action failed; for the acceptance had been obtained by fraud. It was made in New York. The judicial decisions of that State, contrary to the prevailing opinion as to what was the general common law rule, seemed to favor the view that a pre-existing debt did not stand on as good a footing as a present payment, in support of a claim upon negotiable paper. Samuel Fessenden of Portland, a lawyer of great ability, was his counsel. The cause was submitted on briefs, without oral argument. Mr. Fessenden, admitting that the law of the place where acceptance was made must govern the obligations of Tyson, insisted that the New York decisions were wrong in principle and ought not to be regarded. "If," said his brief, "there is any question of law, not local, but widely general in its nature and effects, it is the present question. It is one in which foreigners, the citizens of different States in their contests with each other, nay, every nation of the civilized commercial world, are deeply interested. By all without the United States this Court is looked to as the judiciary of the whole nation, known as the United States, whose commerce and transactions are as widely diffused as is the use of bills of exchange.... How can this Court preserve its control over the reason and affections of the people of the United States; that control in which its usefulness consists, and which its own untrammeled learning and judgment would enable it naturally to maintain; if its records show that it has decided-as it may be compelled to decide if the construction referred to, advocated on the part of the defendant, is established-the same identical question, arising on a bill of exchange, first one way, and then the other, with vacillating inconsistency?" Mr. Dana, for Tyson, maintained the opposite view with equal ability. "In coming together," he said, "from the respective States, the framers of the Constitution, and our representatives in Congress after them, must be regarded as having had in view the language, laws, and institutions of the States which they represented." Mr. Justice Story gave the opinion of the court. Referring to the provision in the Judiciary Act (now U. S. Revised Statutes, Sec. 721) above mentioned, on the construction of which the case must turn, "It never," he remarked, "has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.... The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke _v._ Lyde, 2 Burr. B., 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. _Non erit alia lex Romæ, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit."_[Footnote: Swift _v._ Tyson, 16 Peters' Reports, 1, 8, 9, 10, 11, 13, 18.] This opinion had been submitted to the court for the first time during the evening before it was delivered.[Footnote: _Ibid_., 23.] It could not have received any very close scrutiny. It relied on no authority except that of Cicero, for Lord Mansfield, in the case of Luke _v._ Lyde, was speaking of the law of the sea, which in the nature of things no one nation can prescribe or change. It was not easy to reconcile it with precedents cited by Mr. Dana, in one of which Mr. Justice Chase of the same court had held on the circuit as early as 1798 that the United States had no common law of their own, and that the "common law, therefore, of one State is not the common law of another; but the common law of England is the law of each State, so far as each State has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a Federal, or State, Court."[Footnote: United States _v._ Worrall, 2 Dallas' Reports, 384, 394.] So the Supreme Court itself had said, in 1834, in a famous judgment, concurred in by Mr. Justice Story himself, that "it is clear, there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States; each of which may have its local usages, customs and common law. There is no principle which pervades the union and has the authority of law that is not embodied in the constitution or laws of the union. The common law could be made a part of our federal system only by legislative adoption. When, therefore, a common law right is asserted, we must look to the State in which the controversy originated."[Footnote: Wheaton _v._ Peters, 8 Peters' Reports, 658.] The State courts have looked upon the doctrine announced in Swift _v._ Tyson with an unfriendly eye. In some, its authority is denied.[Footnote: See Porepaugh _v._ Delaware, Lackawanna and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18 Atlantic Reporter, 503.] In none will it affect the disposition of a cause turning upon its own law, and not pending in the federal courts. It has, however, been repeatedly reaffirmed by the Supreme Court of the United States, though the later decisions appear to limit its effect to questions growing out of commercial transactions not wholly confined to a single State.[Footnote: Western Union Telegraph Co. _v._ Call Publishing Co., 181 United States Reports, 92. See Article on the Common Law of the Federal Courts, by Edward C. Eliot, _American Law Review_, XXXVI, 498.] The right of recovery on a cause of action of a commercial nature will therefore often depend on the court which the plaintiff selects. If he sues in a State court, the common law of the State, as the judicial authorities of that State declare it to be, will be applied; if he sues in a court of the United States, the common law of the State as the judicial authorities of the United States declare it to be. Each tribunal will profess to decide by the same rule--the law of the State; but the federal court will really apply the common law of England, as it is generally understood to be, instead of the common law of that State as it is locally understood to be. The relations between the federal and State courts which have been described obviously present many occasions for conflicts of authority. That such conflicts are so infrequent is mainly due to a spirit of comity, which the judges of each sovereignty should and generally do show to those of the other. The federal courts are also prohibited by Act of Congress from issuing any injunction to stay proceedings in a State court, except in certain cases arising under the bankruptcy laws. Independent of any statute, however, the general principles of jurisprudence forbid any direct attempt either by a court of the State to control the action of a court of the United States or by a court of the United States to control the action of a State court, except to the limited extent for which provision is made in the national Constitution.[Footnote: Diggs _v._ Wolcott, 4 Cranch's Reports, 179; M'Kim _v._ Voorhies, 7 Cranch's Reports, 279.] Each court, this exception aside, exercises powers belonging to an independent sovereign, and therefore subject to control by that sovereign only. The equitable jurisdiction of the courts of the United States enables them to interfere in disputes arising out of State elections in certain cases in which the claim is set up that rights held under the Constitution or laws of the United States have been violated. Actions for such relief are rare, and instances have occurred in which the remedy has been abused for political purposes.[Footnote: See the proceedings in the case of Kellogg _v._ Warmoth in the United States Circuit Court in Louisiana in 1872. McPherson's "History of Reconstruction," 100-108.] The centralizing and nationalizing tendencies which set in early in the nineteenth century and were so greatly strengthened by the course of events during and following soon after the Civil War have greatly weakened the position and influence of the State courts. They have thus rendered the State bench less attractive. In 1791, John Rutledge, an associate justice of the Supreme Court of the United States, resigned that office for the Chief Justiceship of South Carolina. During the last half century, several Chief Justices of States have resigned to become Associate Justices of the Supreme Court of the United States. Associate Justices of Supreme Courts in the smaller States have also frequently resigned to accept the position of District Judge, attracted by the life tenure, larger salary, and retiring pension. * * * * * CHAPTER XI RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES Every State has all the rights of an independent sovereign, except so far as its sovereignty is limited by the Constitution of the United States. As respects each other the States are for most purposes in the position of foreign governments. The courts of one are regarded by those of any other as foreign courts, except so far as the Constitution may have prescribed a different rule. No legal process from a court can have any inherent force outside of the territorial boundaries of the government in which it is issued. The law of that government may attach certain consequences to the fact of its service in a foreign country, but it can do so only with reference to the effect of the proceeding on persons or property subject to its own jurisdiction. Courts, as a general rule, can act only when they have jurisdiction over the person, the subject-matter, and the cause. In rare cases, jurisdiction over the subject-matter may be regarded as giving jurisdiction over the person, so far as may be necessary to uphold a judgment settling the possession or title to property. Such a proceeding is, either in form or substance, one not _in personam_ but _in rem_. The commonest instance is a suit in admiralty to enforce a maritime lien, such as that given by the universal law of the sea for seamen's wages. Wherever the vessel is found, this lien is recognized and will be enforced by seizing and selling her, but only after some kind of public notice has been given to all who have any pecuniary interest in her to appear and be heard. In such a suit, personal notice to her owners, served within the jurisdiction of the government to the courts of which the seamen may resort, is not indispensable. The presence of the ship within the power of the court is enough. While State courts have no admiralty jurisdiction, they can adjudicate upon a claim of title or right of possession to fixed property within the territorial limits of their State, although the parties adversely interested are not and have not been personally served with process there or anywhere. Here again their power over the property necessarily implies such power of control over those who might lay claim to it as will suffice to settle any dispute over its ownership or possession. But in all ordinary cases they are not only powerless to subject any one to obedience to their judgments who is not personally within the State in which they exist, but powerless so to subject one who is personally within it, but who did not belong there and was not there served with process in the original proceeding leading up to the judgment, unless he voluntarily took part in the proceeding. In most civilized nations there is a recognized form of proceeding by which a judgment of a foreign court, fairly rendered after giving a proper opportunity to the defendant for a hearing, can be enforced by process from a domestic tribunal. This is styled making the foreign judgment executory. The English common law did not recognize such a right, and gave no remedy to one desiring to enforce a foreign judgment, except that of bringing a fresh suit. In like manner, whoever has recovered a judgment against an inhabitant of any State, in a court held outside of that State, can enforce it against him in his own State only by bringing a new action. This either is, or is in the nature of, the common law action of "debt on judgment"; and only two defenses are available. These are, first, that no such judgment exists or is in force; and, second, that if it exists, it was rendered by a court having no jurisdiction over the subject-matter or the defendant.[Footnote: Pennoyer _v._ Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was jurisdiction, it is of no consequence that it was erroneously or unfairly exercised. The remedy for that must be sought in the State where the judgment was pronounced. Even fraud on the part of the plaintiff in procuring it, though a defense against a judgment of a foreign country is not one against a judgment of another State.[Footnote: Christmas _v._ Russell, 5 Wallace's Reports, 290.] These rules are established by Art. IV, Sec. I of the Constitution of the United States and by Acts of Congress passed to enforce it.[Footnote: U. S. Revised Statutes, Sec. 905.] Commercial intercourse between the different States is so great and so constant that questions in the courts of one often arise which turn on the law of another. Those who do any act do it with implied reference to the law of the place where it is done, so far as respects its legal consequences. If it is a wrongful act there, it will in most instances be deemed a wrongful act everywhere. If it leads to a certain result as regards property rights there, it will ordinarily give a right of action anywhere, to secure the benefit of that result. The law of each State is largely an unwritten common law. Even in those where they have full codes defining civil rights, these codes are expressed in terms for the definitions of many of which the common law gives the rule. But this common law is not precisely the same in any two States. In minor points certainly, and perhaps in capital ones, there will be a divergence. In England there is one uniform common law. Here, divided as we are for most business purposes into forty-five different sovereignties, it is multiform. If, then, the court of one State in determining the legal effect of a transaction having its seat in another must be governed by the common law of that State, where is it to be found? If there have been decisions of its highest courts in regard to what it is with reference to the point in question, they will ordinarily be accepted as conclusive. This is not by virtue of the provision in the Constitution of the United States that full faith and credit is to be given in each State to the public records and proceedings of the others. That refers to the effect of public records and proceedings upon the rights of those who are or claim under parties to them. Such decisions as those which have been described are accepted as conclusive as to the rights of those who were not parties to them, and simply because they are considered the best evidence attainable of a rule of unwritten law of general application. But they are not universally so considered. The rule that transactions are governed by the law of the place where they have their seat is one founded on the presumed intent of the parties to them. But in fact the parties to a business transaction act on their general notions of what the law is or must be, rather than on any particular knowledge of what courts have declared that it is. The rule that one country will accept the opinion of the judicial authorities of another as to what its law is, is one not to be pressed so far as to sacrifice essential justice. In this point of view, some courts hold that it is permissible to disregard decisions of other States which are based on a departure from what is generally considered a settled doctrine of the common law as to a commercial question. This is substantially the same position taken by the Supreme Court of the United States, and elsewhere described,[Footnote: See Chap. X.] concerning the right of a federal court to refuse to be bound by State decisions as to the unwritten law affecting foreign trade or trade between the States.[Footnote: Faulkner _v._ Hart, 82 N. Y. Reports, 413, 423.] Another rule of practice of great importance is that in the absence of proof to the contrary the courts will presume, in a State basing its jurisprudence on the English common law, that the unwritten law of any other American State is the same as its own. As the reason of this rule fails in the case of Louisiana, Florida and Texas, which were subject to organized governments not derived from Great Britain at the time when they were incorporated into the United States, it is not applied to them.[Footnote: Norris _v._ Harris, 15 California Reports, 253.] Decisions of a court constitute a precedent of binding obligation only within the particular territorial jurisdiction which is subject to its process. In the tribunals of one State decisions rendered in another on legal points are, so far as respects transactions not governed by its local law, without any authoritative force. They may be read, just as the opinions of an author expressed in a legal treatise, or as the decisions of an English or German court might be, for what they appear to be worth. No formal proof that they were really the deliverances of the court from which they purport to emanate is necessary to support their use for this purpose. The reported decisions of courts of other States, whether published officially or unofficially, may be cited in argument in any cause, to fortify the claims of counsel as to the proper rules to be followed in reaching a decision. For this use they are introduced simply for the intrinsic value of the reasoning and conclusions. If it is claimed that they prove the law of the State from which they come to be of a certain nature (and that is a material point in the case), they should be made the subject of proof before argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports, 1.] In many States this is dispensed with by statutes allowing courts to take judicial notice of all reported decisions in other States; that is, in effect, to take any means which they think proper to learn what they are. It is also the general practice of the bar where no such statutes exist to allow the reports of other States to be read for any purpose without objection. Most States have statutes to facilitate the proof in court of the statute laws of other States. The mode prescribed by Act of Congress (Revised Statutes, Sec. 905) under the constitutional provision, to which reference has been made, involves considerable expense for the proper certification of copies. Common provisions of State legislation are that all courts may take judicial notice of the laws of other States (that is, take them into account without any formal proof at all), or that a copy of the official publications containing them shall be competent evidence of what they are. There is a certain spirit of comity to which courts often give expression in rendering assistance to courts of other countries. This judicial comity has been defined as "the deference commonly paid by the courts of one jurisdiction to the laws or proceedings of another, in causes affecting rights claimed under such laws or proceedings."[Footnote: "Dict. of Philosophy and Psychology," _Comity_.] As between courts of the different States in the United States this sentiment naturally is particularly strong. In pursuance of it, it is usual, if there has been a judicial appointment in one State of a representative of the law to administer an estate of any kind, part of which is in another State, for the courts of the latter to give him such further powers or appointment as may be necessary to put in his possession or control whatever is within their jurisdiction. An administrator of the estate of a deceased person would thus be appointed, almost as a matter of course, administrator of such estate in whatever State property or rights of action belonging to it might be found. A receiver appointed by a court of equity to take possession of property would ordinarily, in like manner, be appointed to the same office wherever any part of such property might be situated; and in some States such an officer has been permitted to sue for it under his original appointment. The general doctrine, however, is that a receiver in chancery (that is, a receiver appointed by a court of equity) is simply an arm of the court which appoints him, and has no authority to act outside of the territorial jurisdiction of that court.[Footnote: Hale _v._ Allinson, 188 U. S. Reports, 56.] A receiver of an insolvent corporation often finds that it has shareholders living in several different States, who have not fully paid in their subscriptions to its capital stock. In such case, if the statute of the State under the laws of which it was incorporated provided for the appointment of a receiver for insolvent corporations of that character, he may be regarded in other States as one to whom each shareholder, in legal effect, promised to pay such part of his subscription as had not been previously paid to the corporation itself. On this theory of liability, a foreign receiver has a right of action by virtue of his official position, indeed, but not because of authority from a foreign court to use that position for such a purpose. He sues as one to whom the shareholder promised to make a payment, and on a direct contract between the two, which is implied by law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47 Atlantic Reporter, 711; 84 American State Reports, 161.] The sentiment or rule (for from being a sentiment it has risen to be a rule) of comity between States both aids in the enforcement in one of rights acquired under the other,[Footnote: Finney _v._ Guy, 189 U. S. Reports, 335, 346.] and in the prevention by one of acts which would infringe on prohibitions created by the other. Thus, if a corporation of one State has been organized to do business in another, it may be enjoined in its home State from amalgamating with a corporation of the other, contrary to the public policy of the other as declared by its courts.[Footnote: Coler _v._ Tacoma Railway and Power Co., 70 New Jersey Law Reports; 54 Atlantic Reporter, 413.] As no legal process can be effective outside the limits of the sovereignty by authority of which it is issued, no court of a State can summon before it witnesses not found within its jurisdiction, who live in another State. This, in view of the free intercourse and trade between all parts of the United States, would work intolerable hardship had not statutes been passed by every State permitting testimony to be taken outside of its limits by written deposition for use in civil cases. So far as criminal causes are concerned, this mode of relief generally cannot be pursued, owing to the common provision in our State Constitutions that the accused must be confronted by the witnesses against him. Most of the Northeastern States, to meet this difficulty, have passed statutes requiring their citizens when summoned by a local magistrate at the request of a court of another State to appear and testify before it in such a prosecution, to do so upon receiving payment for their time and expenses, on pain of a considerable pecuniary forfeiture.[Footnote: New Hampshire inaugurated this legislation more than sixty years ago. Public Stat., ed. 1842, 382. Most of the statutes apply only to adjoining or neighboring States, and some require reciprocity on their part.] * * * * * Lawyers of one State have no right to practice in any other. By courtesy and on motion of a member of the bar, it is customary for the courts of other States to allow them to participate in the conduct of any particular cause. In some States, lawyers who have removed their residence into them from another may in the same manner be admitted to their bar; in most there is a standing rule on the subject which requires proof of their having practiced in the courts of their original State for a certain number of years, and otherwise provides for an examination into their legal attainments. * * * * * CHAPTER XII TRIAL BY JURY To have a trial by jury is, as a general rule, the right of every man who sues or is sued in court on a cause of action not of a kind to be disposed of in a court of equity or admiralty. The American colonies did not all adopt this mode of procedure at first, and few of them ever practiced it precisely on the English plan. In the colony of New Haven there were no juries. In all the New England colonies, later, there were juries, but verdicts in civil causes had not the conclusive force given them by the common law. The defeated party had what was styled the privilege of a review. This was a new trial before another jury, either in the same court or a higher one. If he lost his case again, it was the end of the litigation. If he gained it on the second trial, the other party could demand a third, and the event of that decided the cause forever.[Footnote: Bissell _v._ Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.] In criminal prosecutions a similar right was sometimes conceded to the defendant in case of conviction.[Footnote: Statutes of Connecticut, ed. 1715, p. 131.] South of New England there was no such radical departure from the common law, but there were before the Revolution variations of considerable importance.[Footnote: The _Federalist_, No. LXXXIII.] Instead of sending a case before an ordinary jury, the court has power, at the request of the parties, to direct a special jury to be summoned to hear it. This is seldom asked or granted unless the matter in controversy is of peculiar importance and difficulty. Such a jury is more carefully selected, with the assistance of the parties, so as to make it sure that it will be composed of men exceptionally competent to decide a cause and such a cause. They are generally paid a larger compensation than ordinary jurors receive, the parties furnishing the additional sum required. Prepayment of these sums may be and often is made a condition of granting a trial before such a jury.[Footnote: Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports, 621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports Annotated, 911.] The requirement of unanimity on the part of the jury in civil causes, which we have inherited from England, is indefensible in principle. In practice, it has saved the institution from destruction. No one would feel himself safe if a majority of twelve men, of no special training in the study of legal rights, could strip him of his property. But among that number of persons there can hardly fail to be one or two of superior character and intelligence. These, with the aid of the judge, if he be one who fulfills properly his part of the proceeding, can generally lead the rest to a just conclusion. If the verdict is for the plaintiff, they may have to yield to some compromise as to the amount of damages. Not infrequently this has been arrived at by calling for the separate estimates of each juror, adding them together and dividing them by twelve. It is a rough way, and not the fairest, but the wiser heads may consent to it to secure the concurrence of the weaker. In criminal cases, the importance of a verdict to the defendant is so great that unanimity may well be required. While there is a legal presumption that he is innocent until found guilty, this in practice is of little avail to him with the jury. They know from their every-day observation of affairs that there are few prosecutions which reach the final stage of a trial on the merits, under which there ought not to be a conviction. In several States verdicts in civil causes by a three-fourths vote are permitted. This radical change is not likely to become general. Its best defense is that temptations to corruption are thus removed. So long as one juror, by refusing to concur with the rest, whether with or without reason, can prevent a verdict, there will be defendants seeking to prevent the recovery of what they know to be a just demand, who will be ready to buy a vote. In 1899, seven of the bailiffs in attendance on the Chicago courts were accused of lending themselves to such negotiations, and twenty men who had been jurors confessed that they had either taken or been offered bribes.[Footnote: Report of the New York State Bar Association for 1904, 51.] The Anglo-American jury is unique because it is nothing unless unanimous, and because it may render a general verdict, stating no reasons for the decision, on which a general judgment, save in exceptional cases, is entered as of course. In the early judicial history of the American colonies juries were less under the control of the judge than they are now.[Footnote: See Chap. XIV.] In some colonies they received no instructions as to the law, the chance of an unjust decision being guarded against in civil cases, as previously stated, by an absolute right in the losing party to claim a new trial before another jury. The general tendency of judicial practice in later years has been to emphasize the influence of the judge upon verdicts. This often extends to directing a verdict, peremptorily, for one party or the other, when the law is clear upon the facts claimed or admitted. Still more often it takes the shape of a caution as to the weight that can properly be given to certain testimony, or an opinion as to what really are the controlling sources of evidence. Without the guidance of an intelligent judge, a jury would frequently come to unfortunate and even unjust conclusions. That there should be such guidance is an essential part of the jury system, and it is generally given most effectually where the judges are the ablest and the most independent. The judge has at common law and by practice in most American States a right in his charge to comment on the evidence and intimate his opinion as to the weight which should or should not be given to any particular testimony. It is a right to be cautiously exercised, for juries are greatly influenced in their conclusions by remarks of that character. They feel that he is the head of the court, and there is a certain sentiment of loyalty to him as well as of respect for any one occupying the position in which they find him placed by the authority of the State. Sometimes this power is abused. The judge desires to indicate a decided opinion. He fears that if he put it in plain words it might seem so strong as to indicate partiality, and furnish ground of appeal. He therefore uses language, perhaps in reference to the credibility of a witness, which looks fair and even colorless on paper, but by the tone or emphasis in which some vital word is uttered, or with the aid of a shrug or glance, carries to those whom he is addressing an unmistakable conviction that he means it to be taken in a certain sense. Any such judicial action, however, is rare, and would be looked upon with disapprobation by the bar.[Footnote: See Metropolitan Life Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68 Northeastern Reporter, 4.] If the case is one which has been pressed by counsel especially upon the sympathies of the jury, such as a suit arising out of a labor strike, or by a widow to recover for an injury resulting in her husband's death, it is customary for the court to caution them in their charge that justice and not sympathy is their rule of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter, 765.] The American colonies were settled at a time when the English criminal code was extremely harsh, and the English judges were disposed to administer it in such a way as to favor the crown. If the government promoted a prosecution, there was little hope for the defendant, except from the jury. The courts held that on criminal proceedings for publishing a libel it was for them to say whether the paper was libellous, and for the jury to decide only as to its publication by the accused. This was the occasion of the Charles James Fox Libel Act of 1792, and of many constitutional provisions to the same effect in this country, under which juries, even in libel cases, can render a general verdict of Not Guilty. It was under the influence of these ideas, and in view of the fact that the colonial judge often knew no more law than the jury, that it became common in this country either to give a jury in a criminal cause no instruction as to the law at all or to charge them that they were judges both of the law and fact.[Footnote: 2 Swift's "System of the Laws of Connecticut," 258, 401.] In some of the States, a charge to the effect last stated is now sometimes required by statute. A jury trial is a poor mode of doing justice, if there is a rule of law which, as applied to certain facts, should control the verdict, unless that rule of law be both stated by the judge, and so stated as to impress upon the jury that it is their sworn duty to apply it, if the facts which they may find to exist are such as to come under its operation. That they should be so instructed, even if declared by express statute to be the judges both of the law and the facts, is the prevailing opinion of American courts and jurists.[Footnote: Commonwealth _v._ Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156 U. S. Reports, 51, 71.] It is of especial importance that the duty of juries to take the law from the court should be clearly stated to them in a country of written Constitutions. Most crimes are defined by statute. It is easy for the defendant's counsel to claim that the statute on which the prosecution is based is unconstitutional. If it be, the accused is entitled to an acquittal; but if the jury acquit him on that ground, and the ground is false, injustice is done. Any such claim must be disposed of by the court, in order to give the Constitution its due supremacy.[Footnote: State _v._ Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61 American State Reports, 30.] Mr. Justice Baldwin of the Supreme Court of the United States came to the bench, in 1829, strongly inclined to minimize the power of the federal judiciary. In one of his first cases on the circuit, he charged the jury in a capital case that they were judges of both law and fact, and if they were prepared to say that the law was different from what he had stated it to be, were not bound by the opinion of the court.[Footnote: United States _v._ Wilson, 1 Baldwin's Reports, 109.] It was not long before he found himself compelled to retreat from his position. A man was being tried before him for forging notes of the United States Bank, and his counsel claimed an acquittal because the law incorporating the bank was unconstitutional, reading to prove it the veto message of President Jackson, with the accompanying documents. To the Jackson Democrats on the panel this was quite an imposing argument, and Mr. Justice Baldwin was obliged in his charge to sound the warning that for a jury to exercise the power of treating an Act of Congress as invalid was virtually to give us a country without a Constitution and without laws.[Footnote: United States _v._ Sheve, 1 Baldwin's Reports, 510, 513; Pennsylvania Law Journal for November, 1846, p. 9.] In one of the Southern States where it is a statutory right to demand instructions that the jury are the judges of the law, it was the custom of a certain trial judge of commanding presence, when called upon to give them, to say to the jury after he had done so, rising to his full height, "But, gentlemen, you must recollect that I have told you what the law that governs this case is, and to this I am the only witness who has appeared or could appear." It was one of the acute observations of Alexander Hamilton that under our American Constitutions judges are less to be relied on by one who is attacked by the government, because those who direct the government are the choice of the people, and whatever they do is presumably popular. The judiciary, he said, was less independent here than in England, and therefore we had the more reason to cling to the trial by Jury and their power to render general verdicts as our greatest safety.[Footnote: People _v._ Croswell, 3 Johnson's Cases, 337, 353.] The States which guard these most closely are those in which there is the most jealousy of anything like a standing order, and the widest scope of popular election. Georgia was the State, among the old thirteen, in which these characteristics were most marked. Her first Constitution of 1777 expressly threw the power of determining the law into the hands of the jury in every case, though they were allowed to ask the judges holding the court for their opinion, in which case each judge gave his in rotation. The party who lost his case could demand a new trial before a special jury. The ordinary jury were to be sworn to bring in a verdict according to law and the evidence, provided it be not repugnant to the Constitution. The special jury were to be sworn to bring one in according to law and the evidence, "provided it be not repugnant to justice, equity, and conscience, and the rules and regulations contained in this Constitution, of which they shall judge." Apparently the meaning of this was that while the decision of the first jury as to the law could be revised by a second, that of the second, however contrary to the highest law, could not be. * * * * * Resort is occasionally had to the assistance of a jury by a court of chancery for the better disposition of some disputed question of fact on which the equities of the parties depend. This cannot (except by force of some express statute) be claimed as a matter of right. The judge sends the issue to a jury for trial only if he thinks it would be helpful to him, but their verdict has no conclusive effect. He can adopt it or ignore it, at his pleasure. * * * * * The selection of jurors is a long process. The general plan is to commit to some local authorities in each city, town, or county the choice of a considerable number out of the inhabitants whom they may think suitable to serve in that capacity; then to have that list revised by some higher officials or persons specially appointed by the courts for the purpose, who must strike out a large part of the names; and finally to have those who are to be summoned to attend any particular term of court for jury duty chosen by drawing from the remaining names by lot. In many States special qualifications as to age, education, and intelligence are required. Out of the jurors thus summoned to attend the court, there is a further choice by lot of those to try each particular case, subject to objections made by either party to any thus drawn, for proper cause. The statutes of the United States provide that jurors in the Circuit and District Courts shall be selected in each State from those qualified to serve in its highest trial courts, and in substantially the same manner. * * * * * The right to a jury trial is in civil actions often waived by both parties, in which case the facts as well as the law are determined by the judge. If not expressly claimed, it is by the rules of practice in some States treated as waived. The number of civil causes tried to the jury, taking the country as a whole, is declining. The decline is generally found to be quite accurately proportioned to the confidence felt by the bar in the ability and independence of the judge,[Footnote: See Paper by Justice Henry B. Brown, in the American Bar Association Report for 1889, p. 265, on "Judicial Independence."] or perhaps to that confidence in the case of a former generation. Tradition and custom have a large influence on whatever pertains to the practice of law. In several of the States a majority of the civil causes which might be tried to the jury are not: in Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency in England is also toward dispensing with the jury in ordinary civil trials. Over a million cases are brought every year in the English county courts, and in not one in a thousand of them is there a jury trial, although if the matter in demand is over £5 in value either party may claim it.[Footnote: Maitland, "Justice and Police," 28, 29, 54. For small cases the jury is one of five, but their verdict must be unanimous.] Criminal trials, except in case of trivial offenses, it is generally necessary to hold before a jury, by express provisions of the Constitution.[Footnote: See Cooley, "Constitutional Limitations," 389.] During the colonial era the defendant was allowed in Massachusetts to waive a jury, even in capital cases.[Footnote: Proceedings of the Colonial Society of Massachusetts, VI, 95.] Statutory permission to the same effect has since been given in some States where there is no constitutional provision to the contrary.[Footnote: State _v._ Worden, 46 Connecticut Reports, 349.] In civil causes, the right to demand a jury in petty cases has been restricted in a number of States.[Footnote: In New Hampshire, for instance, a constitutional amendment was passed in 1877 denying it in cases involving less than $100, unless title to land is involved.] At common law the judges were accustomed and allowed to put great pressure upon juries, if necessary, to force them to unite in rendering a verdict. They could be kept together without food or beds all night, and even carted about from one court town to another until they were ready to report an agreement. Very little of this practice remains in the United States. In some States they are allowed to separate and go to their homes at night during the trial even of a capital case, and while deliberating over their verdict they are generally supplied with food and other comforts. The right of trial by jury was limited at common law to trials of what are called "issues of fact;" that is, of the truth of a statement of material facts made by one party and denied by the other. If, therefore, in a civil cause a judgment has been ordered for the plaintiff without a verdict, as where the defendant has failed to appear and answer, it is for the court to say for the recovery of what amount of damages the judgment shall be rendered. It may inquire into this by the aid of a jury, but such a jury need not consist of twelve. The inquiry may also be conducted by the judge alone.[Footnote: Dyson _v._ Rhode Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter, 771.] In most of our States this common law practice has been abandoned, and damages, in cases of the kind above described, would be assessed by a jury of twelve. This is because otherwise a defendant who did not dispute his liability for the act complained of and only wished to reduce the amount of damages claimed in the writ might, after declining to appear and plead, come forward with a motion to be heard by the court on the question of damages. A motion of that kind would naturally be granted, and the effect would be to transfer the decision of the only actual controversy between the parties from a jury to a judge. In Connecticut the old practice was maintained until 1907, and the courts held that on the hearing as to the damages, in actions where there had been no contract between the parties to fix the rule of assessment, the defendant might show, if he could, that only nominal damages should be given, because really the plaintiff had no cause of action at all.[Footnote: Lennon _v._ Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter, 334.] The result was that many suits arising out of railway accidents in that State were brought against the company in fault in other States in which process could be served to compel its appearance, and where a full jury trial could be secured. The legislature finally interposed and gave the plaintiff a right to claim a trial by jury, notwithstanding a default.[Footnote: Public Acts of 1907, 665.] * * * * * CHAPTER XIII FORMALITIES IN JUDICIAL PROCEDURE The sessions of a court of record of general jurisdiction are daily opened by a formal proclamation made, at the command of the judge, by the crier or sheriff's officer in attendance. In many States the ancient English style of expression has been preserved, which dates back to the Norman conquest, and begins with a cry of "_Oyez, Oyez, Oyez_." These proclamations are often closed with such words as (for instance) "God save the Commonwealth of Rhode Island and Providence Plantations." The adjournment from day to day is announced in a similar but less elaborate manner. Many courts hold a certain number of stated "terms" annually, the first day of which is fixed by statute, and each of which is adjourned whenever the business that may come before it is finished, lasting sometimes but a few days and sometimes months. In a number of States such terms are opened by prayer offered by a minister of religion, invited in for the purpose by the sheriff or court attendant. No regular chaplain is employed, and one term may be opened by a Presbyterian minister and the next by a Roman Catholic priest. In some of the smaller counties in Massachusetts the sheriff or his deputy daily escorts the judge to and from the court house, in accordance with what has been the usage from colonial times. Formerly it was the practice in New England to ring the bell of the principal church in the town daily at the hour when court opened.[Footnote: This was continued in Connecticut until the last quarter of the nineteenth century.] In many courts it is the custom for all present to rise on a signal from the sheriff or marshal when the judge enters the court room to take his seat on the bench. This is the general usage in the federal courts and in the appellate courts of States. In the latter a formal proclamation is often made by the sheriff to announce the coming of the judicial procession, concluding with a "God save the Commonwealth." In some States formal bows are interchanged between bench and bar as the judges take their places, after which the court is opened by the customary proclamation and the bar then requested by the judges to resume their seats. The rules of official precedence are strictly observed in appellate courts. In entering the court room the chief justice advances first, and his associates follow in the order of the dates of their commissions, the senior associate justice taking his seat on his right, the second in seniority on his left, the third in seniority on the right of the senior associate justice, and so on; the junior in commission occupying the end seat on the left of the bench. The members of the Supreme Court and of the Circuit Court of Appeals of the United States have always worn black silk gowns. The members of the Supreme Court of South Carolina have worn them from a time antedating the Revolution. The New York Court of Appeals in 1877, at the request of the bar, preferred through David Dudley Field, adopted the practice,[Footnote: In 1903 it was extended to _nisi prius_ courts held by justices of the Supreme Court.] and the same thing has since been done by appellate courts in several other States. In one of these, Massachusetts, they had been worn in the colonial era. About 1760, Chief Justice Hutchinson introduced gowns and cassocks there on the Supreme bench, and also gowns, bands, and tie-wigs for lawyers who were admitted as barristers of the Superior Court.[Footnote: "Life and Works of John Adams," II, 133, note, 197.] The latter soon abandoned these, but gowns were retained by the judges until 1793.[Footnote: Publications of the Colonial Society of Massachusetts, V, 22; Amory, "Life of James Sullivan," I, 261, note.] In North Carolina gowns and bands were worn by the members of the Supreme Court in 1767.[Footnote: Proceedings of the Colonial Society of Massachusetts, VI, 389.] In New Jersey, the bar were at one time required to assume them by a rule of the Supreme Court, but the rule was vacated in 1791. At the first opening of the Supreme Court of the United States, in 1790, Chief Justice Jay wore a gown with salmon-colored facings on the front and sleeves, of the style then used by Doctors of Laws created by the University of Dublin, from which he had received that degree.[Footnote: 134 U. S. Reports, Appendix.] It has not since, in that or any other American court, been the practice for judges to wear academic hoods or other decorations on the bench. * * * * * Counsel, in addressing the court, rise and begin with "May it please the Court," "May it please your honor," or, before a court in bane, "May it please your honors." The term "you" would never be used to a judge on the bench; but that of "your Honor" would be employed. Great pains is taken by the officers in attendance to prevent anything on the part of the audience that could in any way disturb the proceedings, such as loud conversation or unnecessary moving from place to place. There is a good deal of antique form in the manner in which, under the direction of the clerk, prisoners are arraigned and juries are made up or "impanelled" for the trial of a cause. In charging a jury, the judge commonly rises and the jury do the same. When sentence is pronounced on a conviction for crime the prisoner is required to rise. In cases of capital offenses, he is asked by the judge if he has anything to say why judgment of death should not be pronounced against him. It is highly improbable at that stage of the cause that he should have anything to urge which has not been already considered, but the ancient English practice in this respect is still followed, for it is not absolutely impossible that something may have occurred since the verdict that would affect the judgment. * * * * * CHAPTER XIV TRIAL COURTS FOR CIVIL CAUSES The great bulk of litigation is confined to the civil trial courts, that is, to courts for the trial of ordinary causes between man and man. It also has its seat in the trial courts of the States, for not only is the judicial power of the United States confined by the Constitution within narrow limits, but these have been made still narrower by the action of Congress from time to time. Most lawsuits never get to trial. The defendant generally has no defense, and is well aware of it. The suit is brought to obtain security or force a settlement. He employs no lawyer and lets things take their course. The result is a judgment against him for default of appearance; for if one who has been duly summoned to court to answer to a demand fails to attend and answer, the court assumes that there is no answer that he could make, and disposes of the cause on such evidence as the plaintiff may produce. On the other hand, the plaintiff often does not care for a judgment. He has become satisfied that, if he got one, he could not collect it, or he has availed himself of the suit to secure a compromise of the matter in demand on satisfactory terms. In such case, or if, after bringing an action, he becomes convinced that he cannot maintain it, he withdraws it, or if the defendant insists, suffers a judgment to go against him, called a nonsuit. In some States the writ or process by which the action is begun must be accompanied by a full statement of the particular nature of the plaintiff's claim. In others this is not required, and such a statement is only furnished when specially ordered by the court. If the case goes to trial on the merits, it will be on such a statement furnished by the plaintiff, and on some paper filed by the defendant by way of answer. Occasionally these pleadings, as they are called, are such as to call out further statements or claims by way of reply and rejoinder. Their form is now generally regulated by statutes, and is much the same in most of the States, being based upon a system known as "Code Pleading," which originated in New York about the middle of the nineteenth century. It is simpler and less technical than the system under the common law which it replaced. If the defendant has any objections to the maintenance of the suit, on such a ground as that it is brought in a wrong court, or a wrong way, these are first disposed of. Then, if he asserts that the plaintiff on his own showing has no case, or if the plaintiff asserts that the defense set up is insufficient on its face, this being a question of law, the judge decides it without the aid of a jury. When, however, the facts are in dispute, a jury must be called in, if either party claims it, in an action not of an equitable nature, when the matter in controversy is one of any considerable amount. In this country we adhere to the old common law mode of taking exceptions to the legal sufficiency of written pleadings. This was by filing a paper called a "demurrer," in which the particular objections were set out, unless, as was frequently the case, they were so fundamental as to be apparent at the first glance. In many States, however, the objections must always be particularized. In England demurrers are no longer used. Her Judicature Act of 1873 put an end to the common law system of pleading, reconstituted her whole method of judicial procedure, and authorized the judges to make rules and orders from time to time to adopt the new scheme to convenience in practice. One of their orders, passed in 1883, abolished demurrers. In place of them, the party desiring to have the benefit of points of law arising on the face of the pleadings may state his point to the court and ask to have it set down for separate argument before proceeding to a trial of the cause on the facts. American lawyers are not satisfied with the reasons which led to this change. They were that the old practice made it a matter of right to claim a special hearing on a law point, while the new order would leave it to the discretion of the judge. The English judges are few and able. Such a plan may work satisfactorily under their administration, but it might often lead to useless delays and expense if introduced in a country where judges are so numerous and of such different qualifications as is the case in the United States. Our trial courts are now generally held by a single judge. Until the latter half of the nineteenth century it was not uncommon to have three judges sit together in county or city courts. One of them would be a lawyer and the others not.[See Chap. VIII.] In cities the two side judges were generally aldermen. A tribunal thus constituted is better adapted in some respects to trying questions of fact than a single judge. It is a jury of three acting by a majority. But for the conduct of a jury trial it is unwieldy, slow-moving and uncertain. In most cases any question of law or legal practice will be virtually decided by the presiding judge, but he will usually pause to go through the form of consulting his associates. Occasionally they will overrule him, and in such case it will be apt to be by a misunderstanding or misapplication of law. The expense of three judges, however moderate the compensation, has also weighed in favor of an abandonment of the system. It naturally results in paying too little to the chief judge, and too much to the others; and always costs more than it would to pay one man a sufficient salary. We have not the need of several judges to hold a trial court, which is felt in many countries. They use them for a purpose which our juries supply. For similar reasons Americans have not seen any occasion for organizing special courts, such as are the German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to try special classes of causes. A jury of twelve will be apt to contain some men who will adequately represent those interested in any ordinary industrial or commercial controversy. Petty suits not of an equitable nature must generally be brought before a justice of the peace, who disposes of them himself, both as to matters of evidence and fact, but subject to an appeal to a higher court in which a jury trial can be had. In some States he can summon in a jury of six and leave the facts to their determination. The pleadings before him are usually in the same form as in the higher courts. In jury trials of civil causes the judicial function is, so far as possible, divided into two distinct parts. All questions of pure law are decided by the judge alone. All questions of pure fact are decided by the jury alone. All questions turning on the application of the law to the facts are decided by the jury under instructions from the judge as to what applications of the law it would be competent for them to make under the particular circumstances which they may find to have existed. The judge also has a large discretionary power in minor matters arising in the course of the suit. It is for him to say when it shall be tried; whether the written pleadings are in proper shape, and if not whether they may be amended; and in what order and within what limits the evidence may be introduced. No countries in the world have so artificial a set of rules of evidence as England and the United States. This is because in no other country is the right to a jury trial so extensive. Many of these rules date back to the early history of the English common law. It was a time of general illiteracy. The ordinary juror could not read or write. His powers of reasoning and discrimination had had little or no cultivation. It was thought dangerous to allow him to listen to any evidence that was not of the clearest and best kind. It was thought necessary to bring all witnesses in person before him and let him hear their voice and look into their faces in order to give him the fullest possible opportunity to determine whether their testimony was worthy of credit. But while our rules of evidence were devised for jury trials, they are applied with equal rigidity in all trials. A jury may be waived; a single judge may hear the cause; and yet he must rule out of consideration whatever would have been inadmissible if it had been made the subject of a jury trial. Much that in other countries is helpful in reaching a just conclusion is in this manner shut out in American courts. A man of the highest character, for instance, may say before twenty listeners that he saw a certain person shoot and kill another, and state how the whole thing happened. The person thus accused is sued for damages under a statute permitting such a remedy by the representatives of the man shot. Before the trial the witness of the act dies. He was the sole witness. There is no other testimony to be had. Under our system of practice, those to whom the statement was made cannot be allowed to testify to it. Such testimony would be "hearsay." It would put before the jury two questions, first whether such a statement was really made, and then whether, if made, it was true. The law of evidence says that they ought not to be perplexed by questions upon questions. The tendency of American legislation of late years has been strongly toward removing some of these artificial bars to getting at the truth. The common law thought it dangerous to allow a jury to hear any witness not under oath, nor under such an oath as implied his belief in the existence of a God, or any witness having a pecuniary interest, in the event of the cause. An atheist or an agnostic could not testify. The plaintiff and the defendant could not. These restrictions have been almost everywhere repealed. The trial judge has also, and necessarily, a large discretionary power in excluding testimony which has only a remote bearing on the case, and in limiting or extending the examination of a witness so as on the one hand to prevent needless repetition, and on the other to get out the truth and nothing but the truth. He has similar authority to restrain the arguments of counsel within reasonable limits. A trial judge suddenly called upon to make a ruling on some point of law in the progress of a trial may make a wrong one. If so, he may have an opportunity to correct it at a later stage of the proceeding. He has admitted evidence which should have been excluded. In his charge to the jury he may instruct them to disregard it, and his error will thus be cured. He has excluded evidence which should have been admitted. Before the case is closed he can change his ruling and allow it to come in. But so long as any ruling stands unchanged, whether it is in accordance with law or not, it is the law of the case for the purposes of the trial. Counsel may endeavor to procure a reconsideration of the question, but they cannot ask the jury to adopt a different view from that taken by the judge. Their only remedy is by a motion for a new trial, after the verdict, or proceedings in error before a higher court. * * * * * Trial courts generally sit during a greater number of hours in the day than appellate courts. This is particularly true when they are held for short terms in a country shire town. In the larger cities where they sit during a large part of the year they generally have established hours from which they rarely depart, such as from ten in the morning to five in the afternoon, with a recess of an hour for lunch or dinner. Formerly nine o'clock was a more common hour for opening court. In New York in 1829 the sittings were from eight to three, when there was a recess of two hours for dinner, and then from five till some time in the evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs of William Wirt," II, 231.] The modern tendency everywhere is toward a shortening of the hours of daily session, especially when an official stenographer is employed. The clerk keeps a docket-book in which each case returned to court is entered and numbered. The entry reads thus: John Doe Smith vs. Richard Roe Jones. Doe is here the plaintiff and Smith is the attorney who brought the suit for him. Roe is the defendant and Jones is the attorney who appears in his behalf. If there be more than one party on either side the words _et al._ will be added, signifying as the case may be, _et alius, et alii_ or et alium,_ or should there be three or more defendants, _et als_, signifying _et alios_.[Footnote: Another book is kept for criminal cases, which are docketed as "The State _v._ John Doe," in others as "The People _v._ John Doe," and in the federal courts as "The United States _v._ John Doe."] From this docket trial lists are made up for each term or session of court. Assignments for trial are sometimes made by the court and sometimes arranged by the bar subject to the approval of the court. Several cases are commonly set down for each day, so that if one falls out another may be ready, and in every case so assigned the parties must be prepared at their peril to appear and proceed at any minute when called upon. In courts having a large docket of cases it is customary to set apart one day in the week for the disposition of incidental motions and for arguments on points of law. When a case is called for trial the plaintiff's counsel opens by stating its nature and the main facts as set out in the declaration or complaint which he expects to prove. Sometimes the pleadings on both sides are read at length. The plaintiff's witnesses are then examined orally, after the examination of each an opportunity being given for his cross-examination by the other party. The testimony of witnesses whose attendance cannot be had, which may include any living out of the State (or, in the federal courts, over one hundred miles from the place of trial), or who are infirm or sick, may be secured by previously taking it down out of court in the form of a written deposition, under oath, before a magistrate. In such case the adverse party must have such notice as to enable him to be present and cross-examine the deponent, or to file written cross-interrogatories. Depositions are received in the same manner and subject to the same objections as oral testimony. In cases in equity a considerable part of the testimony is generally presented in written form, either by depositions of the kind described or certified by a special officer appointed by the court for the purpose, who may be called an "examiner." When the plaintiff's case has been thus presented, his attorney announces that he "rests." The defendant's attorney then states what he proposes to prove, and produces his evidence, at the close of which the plaintiff has the opportunity to meet any testimony so produced as to points not covered by the plaintiff's case as presented "in chief," by rebutting testimony. Should there be any new point brought out in the latter which the defendant had not anticipated in presenting his case (which rarely happens), he may now be allowed to introduce further testimony as to that. At the close of the evidence the plaintiff's counsel argues for his client; the defendant's counsel replies; and the plaintiff's counsel is then heard in answer to anything which has been said in behalf of the other side. If the trial has been had before a judge without a jury he then commonly takes the written pleadings and makes up his decision at his leisure; but if the case is plain may give final judgment on the spot. If the trial has been before a jury the parties argue as to facts in dispute to them, but as to the law upon these facts to the court.[Footnote: See Chap. XII.] In some States the arguments on the latter question are made before those on the former, and written requests or "prayers" for instructions to the jury as to the law are submitted to the court, upon which it passes before the jury are addressed. In most States there is no such division of argument; judge and jury are addressed in turn during the same speech, and counsel first know what view of the law is taken by the court when the judge gives his final charge. In every jury trial, after all the evidence is in and the arguments concluded, it is the duty of the court to instruct the jury as to what the precise controversy is and what disposition of the cause it would be permissible for them to make. If in view of facts which are undisputed by either party there can be in law but one conclusion, the judge should direct them to render a verdict accordingly. But if the facts might fairly be found as they are claimed to be by either party, he instructs them as to the law applicable to the facts so claimed by each. He can, at common law and by the practice in most States, give his own opinion as to the weight of evidence on any point in controversy. The common law requires unanimity on the part of the jury before they can return a verdict. If it cannot be had they report a disagreement, and the case stands over for another trial. If they agree upon a verdict, it must, to be effective, be accepted by the court. This acceptance is ordinarily a matter of course, but if the verdict is plainly contrary to the evidence or to the law as laid down in the charge, it may be set aside and a new trial ordered. If it gives damages which are plainly excessive, the judge may set it aside, unless the prevailing party enters a _remittitur_ of a certain amount, that is, formally stipulates on the record that the verdict shall stand only for such sum as the judge may have thus indicated to be what seems to him to be the utmost limit that ought to be allowed. In some States, if the verdict is unsatisfactory to the judge, though not so manifestly against the evidence that he would be justified in setting it aside, he may return the jury to a second consideration of the cause. When a verdict is accepted judgment is rendered in accordance with it. To this rule there are, however, certain exceptions. It sometimes happens that a verdict is returned for a plaintiff whose case as stated in his pleadings is one which in law is no case; the defendant having failed to take this objection and made his contest only on the facts. He then can ask the court not to render any judgment upon it. This is technically called a motion in arrest of judgment. Again, the verdict may be rendered, by reason of the state of the written pleadings, on some immaterial point, in favor of one party, when there are other points of controlling importance in favor of the other, on which it has been admitted that he is in the right. In such case the party against whom the verdict is rendered may ask for judgment in his own favor notwithstanding the verdict. Verdicts are ordinarily given directly for the plaintiff or the defendant. Printed blanks for such verdicts, one headed "plaintiff's verdict," and the other "defendant's verdict," are often handed to the jury when they retire, to choose from according as they may find the facts. Such a verdict is called a general verdict. Occasionally one of a different form is returned at the request of counsel and by the permission of the court. This is termed a "special verdict," and sets forth the particular facts as found by the jury in detail, without finding the ultimate issue for either party. This is only proper when such a finding would have been simply a legal conclusion from these facts. A special verdict leaves it to the court to apply the law and render judgment as that requires. In many causes the testimony is all taken out of court, before some officer or arm of the court, who only reports his conclusions from it as to the matters in controversy. This is a common practice in equity, the case being sent to a "master in chancery" for this purpose. In cases of a common law nature the consent of both parties is generally required; but with that any cause may be disposed of before an arm of the court commonly termed an "auditor," "referee" or "committee." The report of such a hearing sometimes is confined to the facts which are found to have been established. In other cases it may extend to a provisional decision of questions of law arising on those facts. The ultimate decision of any question of law is always for the court, and if it accepts the report it is its duty to draw the proper legal conclusions from the facts established. As to whether the report shall be accepted, and as to the legal questions arising upon it, the parties have a right to be heard in court. Improper or irregular conduct on the part of the officer making the report may be shown as a cause for rejecting it. If it is accepted the facts found generally stand as conclusively established. Equity causes are generally tried before a single judge, who decides all questions both of fact and law, proceeding in the same manner as in a common law cause in which a jury has been waived. * * * * * CHAPTER XV PROBATE COURTS The English common law regarded wills of lands as in the nature of conveyances, the due execution of which, if ever called in question in a lawsuit, was to be established then and there; but if never so called in question, need never be established at all by any judicial proceeding. Wills of personal property, on the other hand, were to be proved as soon as might be before an ecclesiastical court, and unless so established were ineffectual. This difference in the treatment of the two kinds of wills was due to the legal principle that so far as personal rights and obligations were concerned the personality of the dead was, after a certain fashion, continued in existence by attributing personality to their estates. These were to be administered by some one as the "personal representative" of the former owner. This personal representative discharged his personal obligations so, far as there might be personal estate or rights of property sufficient for the purpose. He was styled an executor if designated by will; an administrator if there were no testamentary appointment. A man's lands, however, went upon his death straight to his heirs unless he had by will conveyed them to some one else. That when he died they were part of his estate did not charge them with the fulfillment of his personal obligations. For the discharge of these the creditor must resort to his personal representative. His heirs occupied no such position. The administrator was always appointed by an ecclesiastical court and rendered his accounts to it. Long use and the existence of a State church with a regular judicial establishment, made such a system tolerable to the English people; but the new conditions under which those of them came who planted the American colonies made it both intolerable and impossible here. While most of the colonies had an established church, none had bishops or bishops' courts. The bishop of London claimed a certain jurisdiction over all, but in none was it recognized as extending over the estates of the dead. In the Crown colonies the instructions to the Governors generally referred to it as sanctioned by the government but not as extending to the probate of wills. Some of the Governors were given _ex-officio_ full probate powers.[Footnote: "The American Jurisdiction of the Bishop of London," Transactions of the American Antiquarian Society, Vol. XIII, 188, 194, 197.] The same considerations which early led to the general adoption of a recording system for deeds of land in all the colonies extended to wills, since they also might convey it. Such records, to attain their purpose, had to be public in the fullest sense. Nothing was allowed to go upon them which had not some kind of authoritative sanction proceeding from the State. Deeds were first to be acknowledged before a magistrate. As to wills, the practice finally came to be to require them to be established once for all as the act of the testator by a court invested with special jurisdiction for that purpose, and also over all estates of those who die leaving no will. This, if organized for that special function particularly, is ordinarily styled a Court of Probate, occasionally a Surrogate's Court or Orphans' Court. It is sometimes given, and sometimes not given, a certain authority over the real property within the State while the estate is in settlement. All real estate left by a decedent is ordinarily made, by statute, liable for his debts in case of a deficiency of personal property, except so far as it may be charged with a right of dower. Even if it has gone into the possession of an heir or devisee, the proper Probate Court can order its sale for this purpose, if it should appear on the allowance of the administration account to be necessary. The formal establishment or "probate" of a will does not affirm the validity of its provisions. It simply adjudges the instrument to be a will legally executed by one competent to make it and who had a home or property within the territorial jurisdiction of the court. Commonly, if not universally, an opportunity is given, either in the first instance or by appeal to a higher court, to have these questions tried before a jury. The succession of particular persons to the property of the dead is not a matter of natural right. It rests upon positive law and is regulated by the authority of the government at its pleasure.[Footnote: United States _v._ Perkins, 163 U. S. Reports, 625.] Probate procedure is therefore wholly determined by local legislation and practice. In many States, probate jurisdiction belongs to the county courts. In others it is invested in local courts for lesser subdivisions of territory with the purpose of cheapening the settlement of estates. In a few these local courts are very numerous, all the towns of the State being distributed into small groups and each furnished with its Probate Court, the judge of which, in many instances, has had no legal training, and receives no compensation except stated fees for such business as may actually come before him. An appeal is given from his orders to a higher court of general jurisdiction. In practice such a system works fairly well. If there are suitable lawyers in the group of towns forming a probate district, one of them who belongs to the prevailing party is generally made the judge if he will accept the office, and if he fills it well is apt to be re-elected, whichever party may then be uppermost. If a lawyer is not appointed and a case of any difficulty presents itself, the judge will probably consult some counsel in whom he feels confidence, and who will be sufficiently flattered by the request to advise him without making any charge for it. The proper seat of administration is in the State and the local subdivision of the State where the dead man belonged. Proceedings there affect all his personal property wherever it may be found, and generally his real estate situated anywhere in the State. Real estate in another State can be affected by probate proceedings only if they take place there, by its authority. For that purpose "ancillary" administration is often taken out, that is, one designed to serve the interests of the general succession as administered in the seat of the principal administration. Since the right of a personal representative to act for the estate of the dead comes from the positive law of the particular sovereign having the proper jurisdiction, and since no law of a particular sovereign can be enforced, by virtue of his power or anything dependent on it, outside of his territorial jurisdiction, it follows that no executor or administrator can of right maintain a suit, as such, out of the State from the laws of which he derives his authority. He may take possession of the goods of the estate found in another State, or collect debts due from its citizens if no objection be made, but if forced to claim the aid of judicial process he must first prove his title there before the appropriate Probate Court by taking out ancillary administration, in which case he will probably be compelled to give security for the proper discharge of his duties under such appointment. * * * * * CHAPTER XVI BANKRUPTCY AND INSOLVENCY COURTS It is within the power of Congress to assume the exclusive regulation of bankruptcy proceedings throughout the United States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is in this country no real difference in meaning between the terms bankruptcy and insolvency. Each denotes a _status_ into which one unable to pay his debts, as and when they fall due, may put himself, or be put by his creditors. The remedy is not confined to any particular classes of persons, and no more fault is implied on the part of one who is adjudged a bankrupt than on the part of one who is adjudged an insolvent. During most of the history of the United States there has been no uniform law on the subject of bankruptcy for the whole country. Three bankrupt Acts were enacted by Congress from time to time during the first century after the adoption of the Constitution. Each followed some serious financial crisis, and was repealed not long after the immediate effects of the crisis had passed away. They were adopted as a kind of [Greek: seisachtheia] to help insolvent debtors to get on their feet again. A later Act passed in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large, 544; 32 _id._, 797.] and as it contains many provisions which have been found useful by creditors as well as by debtors, it is not unlikely to remain permanently upon the statute-books. The prosperity of the United States rests mainly on the absolute free trade which exists between the several States. That necessarily results in innumerable credits extended by citizens of one State to those of others, and in immense property interests in each State belonging to non-residents. In case of insolvency full justice can not be worked out except through the legislative powers vested in the United States. The Act of 1898 allows any one except a corporation to become a voluntary bankrupt. Practically any insolvent debtor can be thrown into involuntary bankruptcy, except wage earners, farmers, incorporated banks, or business corporations owing less than $1,000. This is so even if a State court of insolvency has already taken charge of his affairs; and if that has occurred it is of itself a sufficient reason for bankruptcy proceedings. Petitions in bankruptcy are preferred to a District Court of the United States. Each bankrupt estate is put in charge of one or more trustees. They can maintain actions to recover or protect it, as a general rule, in the courts of any State as well as in those of the United States.[Footnote: See Bardes _v._ Bank, 178 U. S. Reports, 524.] Their title does not extend to anything which by the laws of the State where the bankrupt belongs is exempt from his creditors. Such exemptions differ greatly in different parts of the country. In some States certain property of the value of $5,000 may be exempt; in others the amount which the debtor can retain is comparatively trifling. There is, therefore, no uniformity in the result; but there is, nevertheless, uniformity in the rule under which the results are reached, and this is enough to support the validity of this provision of the statute.[Footnote: Hanover National Bank _v._ Moyses, 186 U. S. Reports, 181.] The bankrupt may propose a composition to his creditors, and it may be accepted by a majority of them in number if they also hold the major part of the indebtedness. If such an acceptance is confirmed by the court the entire indebtedness is discharged when the total amount to be paid (including whatever is necessary to discharge all preferred claims) is deposited in court. A discharge may be granted to every honest bankrupt (whether his estate pays anything to his creditors or not), which clears him forever of all his ordinary debts. It does not apply to taxes nor to liabilities for certain wrongs of an aggravated character; nor can two successive discharges in bankruptcy be procured within six years unless the first was the result of involuntary proceedings. Whenever there has been no national bankruptcy law in existence, the States have been held to be free to pass such insolvent laws as they might think proper. During the existence of a national bankruptcy law no State insolvent law can be of any force which covers the same field.[Footnote: Ogden _v._ Saunders, 12 Wheaton's Reports, 213; Tua _v._ Carriere, 117 U. S. Reports, 201; Ketcham _v._ McNamara, 72 Conn. Reports, 709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded or suspended as a necessary effect of the enactment of the Act of Congress, although that contains no express provision to that effect. Most of the States have on their statute-books provisions for a permanent system of insolvency proceedings. In some they are as favorable to the debtor as the United States bankrupt law of 1898: in more they are less favorable. Generally such proceedings are brought before a court of special jurisdiction, constituted both for this purpose and for the settlement of the estates of deceased persons and of those who are incapable of managing their own affairs. In the older States it is often made a condition of a discharge that the creditors shall have received a certain percentage of their claims. The relief which the States are competent to give either to debtor or to creditor is very inadequate. The discharge of the debtor is of no avail except as against those creditors who were subject to the jurisdiction of the court. None are so subject except those belonging in the State, or actually taking part in the proceedings. Every bankruptcy or insolvency proceeding is a great lawsuit. The discharge is the final judgment in it. It can bind none who are not parties to the action. Only those are parties who were bound to appear, or who did appear. No one belonging to any other State or country can be bound to appear, unless in the rare case of a personal service of proper process upon him, made while he was within the territorial jurisdiction. Any creditor, wherever he may reside, who files a claim against the insolvent estate, or receives a dividend from it, makes himself a voluntary party. But as against a non-resident who keeps aloof and takes no part in the proceedings the discharge is worthless, even in the courts of the very State by authority of which it was granted. On the other hand, the creditor gets less aid from the State courts than a trustee in bankruptcy. The trustee in bankruptcy can sue in any court in the country in which the debtor could have sued for the same cause of action. The trustee or assignee in insolvency, acting under the appointment of a State court, can only sue within that State, unless his title has been fortified by a conveyance from the insolvent which would be good at common law. So far as his title rests on a law, by which it was taken away from the bankrupt and vested in him, it is ineffectual wherever that law is ineffectual; and the law of no sovereign is effectual of its own force outside of his territorial jurisdiction. *[Footnote: Booth _v._ Clark, 17 Howard's Reports, 322, 337; Hale _v._ Allinson, 188 U. S. Reports, 56.]* If, therefore, as is commonly true in estates of any magnitude, part of the assets can only be recovered by suit in other States, there must be ancillary insolvency proceedings there, to clothe the principal assignee with the right of action. Should the insolvent be the owner of land in another State, the title to this can only be transferred in accordance with its law, and a foreign assignment in insolvency will be wholly ineffectual. Nor will ancillary proceedings in insolvency be allowed to prejudice the rights of citizens of the State in which they are instituted to any security which they might otherwise have for debts due them from the insolvent.[Footnote: Ward _v._ Conn. Pipe Mfg Co., 71 Conn., 345; 41 Atlantic Reporter, 1057; 42 Lawyers' Reports Annotated, 706; 71 Am. State Reports, 207.] The right, however, of every sovereignty to postpone claims under a foreign bankruptcy or insolvency to the interests of its own people is modified in the United States by the constitutional provision that the citizens of each State are entitled to all privileges of citizens in the other States.[Footnote: Blake _v._ McClung, 172 U. S. Reports, 239.] * * * * * CHAPTER XVII CRIMINAL PROCEDURE The American system of criminal procedure rests on the principle that the government should decide on the propriety of beginning all prosecutions, and then should bring and maintain, at its own expense, such as it may deem proper. The first step ordinarily is the filing by an informing officer of a written complaint in the office of some court or with some magistrate, upon which a warrant of arrest issues as of course. In some jurisdictions original informations in a trial court, as distinguished from indictments, can only be filed by leave of court first obtained. Such is the rule in the courts of the United States.[Footnote: United States _v._ Smith, 40 Federal Reporter, 755.] There is no such preliminary consultation with judicial officers as characterizes European criminal procedure. The prosecuting officer assumes the entire responsibility of initiating the prosecution and of giving it the particular form that it may assume. He commonly acts only on such matters as are officially brought to his attention by constables or other officers of police. It is rare that the party injured by an offense complains to him personally. Hence many of the lesser offences go unpunished, particularly in large cities, because the police fail to report them, on account of favoritism or corruption. The warrant refers to the complaint for its support. Between them, the offense charged, the person accused, and the thing to be done by the officer who is to make service must be particularly stated. "General warrants," that is, warrants of arrest or seizure, not specifying the person who is to be arrested, nor the particular place where the seizure is to be made, are expressly forbidden by the fourth amendment of the Constitution of the United States as respects federal courts, and as respects those of the States, are generally prohibited by their Constitutions. Any private individual may, by night or day, arrest without warrant one whom he sees committing a felony or a breach of the peace or running off with goods which he has stolen. If he knows that a felony has been committed and has reasonable grounds for suspecting that it was the act of a certain person, he may arrest the latter, although without personal knowledge of his guilt. A sheriff, constable, or other peace officer may arrest without warrant any one whom he has reasonable ground for suspecting to be guilty of a felony, although it may turn out that no such felony was ever committed. For any ordinary misdemeanor he could not, at common law, arrest without a warrant, unless he personally witnessed the wrongful act or was near enough to hear sounds indicating what was being done. In practice, officers of local police arrest freely on mere suspicion and with no personal knowledge either that any offense has been committed or that, if any, the person taken in charge was connected with it. The only risk which they run is of an action for damages, and that is slight. If one were brought and they showed that they acted in good faith and not wholly without cause, the amount recovered would probably be very small, and in any case it would be difficult to collect a judgment against one of them, as they are generally men of small means. In some of the original States a justice of the peace or higher magistrate, in whose actual presence certain misdemeanors were committed, could deal with the offender summarily and sentence him to a fine without any written complaint or warrant. This was a survival of colonial conceptions of the majesty of official station, and the statutes justifying the practice soon became practically obsolete. It is one of the distinguishing features of the English system of criminal procedure that any private individual can initiate a criminal prosecution, and that prosecutions are generally instituted in that manner. In doing so, he exercises a right belonging to every member of the general public, and the proceeding is, in that point of view, a public one.[Footnote: See Maitland, "Justice and Police," 141.] At common law there were but two guaranties against thus bringing forward frivolous or malicious accusations. The complainant was obliged to verify his charge by oath, and he was liable to a civil action if the defendant was acquitted and it appeared that there was no reasonable ground for the prosecution. In some of our States, also, if any private individual files a complaint under oath before a proper magistrate accusing another of a properly specified offense, a warrant of arrest may issue. In many there are statutes authorizing _qui tam_ actions to be brought by any one. These are actions to recover a statutory penalty prescribed for some wrongful act in the nature of a misdemeanor. The term _qui tam_ comes from the Latin terms of the old English writ used for such proceedings, in which the plaintiff describes himself as one _qui tam pro domino rege quam pro seipso in hoc parte sequitur_. The plaintiff is styled "a common informer," and his action is for the joint benefit of himself and of the State, or of some other public corporation or officers designated by the statute. He is sometimes given an option to sue in the form of a civil action, or by an information and the use of criminal process. In proceedings of the latter description a warrant issues upon which the defendant is liable to arrest.[Footnote: Canfield _v._ Mitchell, 43 Conn. Reports, 169.] The action may, under some statutes, be brought in the name of the government, though by and at the cost of the informer. In such case, unless it is otherwise provided, he retains the exclusive management of the cause as fully as if he appeared as the sole plaintiff on the face of the record. If the plaintiff obtains judgment, and collects the penalty, he must pay half of it over to the government. If he fails, he is personally liable to the defendant for the taxable costs of the action. Under such a statute, a public prosecuting officer can sue for the entire penalty, whenever no action has been brought by a private individual. The tendency of modern American legislation is toward placing the collection of penalties for misdemeanors wholly in the hands of public officers. The _qui tam_ action is certainly a cheap mode of enforcing laws, and one likely to be pressed to a prompt issue. As observed by the late Judge Deady, "prosecutions conducted by such means compare with the ordinary methods as the enterprising privateer does to the slow-going public vessel."[Footnote: United States _v._ Griswold, 24 Federal Reporter, 361; 30 _id_., 762.] But they appeal to sordid motives and are liable to abuse. One who is exposed to such a suit often gets a friend to bring it, in order to forestall proceedings by others or by the State, and with a view to delaying or defeating the collection of the penalty. These considerations induced Parliament to restrict the remedy in England as early as the reign of Henry VII, and have proved of equal force in course of time in the United States. Justices of the peace and local municipal courts of criminal jurisdiction are generally given power to deal finally with a few petty offenses, subject to a right of appeal to a court where a jury trial can be had. As to all others, their function is, when the warrant of arrest has been executed, to inquire whether there is probable cause for holding the defendant to answer to the charge which has been made against him in a higher court, and if they find that such cause exists, to order him to give sufficient security that he will appear before it for trial. The question is not whether the evidence satisfies them of his guilt, but simply whether it is sufficient, in their judgment, to make it proper to send him where the charge can be more thoroughly investigated by those who have the right to condemn or to acquit. In making this inquiry, they hear both sides, if the defendant has any testimony to offer. In most States he is now a competent witness in his own behalf, provided he desires to testify. He cannot be interrogated in any court or before any magistrate without his consent. This is a weakness in the American system of criminal procedure. Under the English system of prosecutions by private persons, there are greater objections to subjecting an accused person to an examination, and it can now only be had by his consent.[Footnote: Maitland, "Justice and Police," 129.] The certainty in England also that criminal prosecutions may in any case be subjected to the power of a public officer by the interposition of the Attorney-General or the Director of Public Prosecutions makes it more important to safeguard a defendant who may be arraigned for a political offense, and whose prosecution may be inspired by reasons of a partisan nature. The magistrates upon whom the task of conducting or superintending the examination would naturally fall are also largely both representative of class interests and unlearned in the law. In the United States local prosecutors are often of a different party from that which controls the State or the United States. They have no close connection with those administering the general affairs of the government. They hold office for fixed terms, not dependent on any shifting of parliamentary majorities or change of ministry. Committing magistrates are in a similar position. They are also in many cases trained lawyers. If our Constitutions could be so modified or so construed as to allow them to ask the accused the questions that the sheriff who makes the arrest or the reporter who hurries after him to the jail is sure to ask, there are many reasons for believing that it would oftener prove a safeguard to innocence than an occasion for extorted and perhaps inconsiderate or misunderstood admissions. And be that as it may, it would certainly lead up to important clues, and frequently bring out admissions that were both unquestionably true and necessary to establish guilt. The fifth amendment to the Constitution of the United States, and similar provisions in the various State Constitutions, preclude, so long as they stand, any radical reform in this direction. They speak for a policy that was necessary under the political conditions preceding the American Revolution, but which is out of harmony with those now existing in the United States. The interests of society are greater than those of any individual, and yet it is with us the State that is deprived in public prosecutions of an equal chance with the accused. While burdened with the necessity of proving his guilt beyond a reasonable doubt, it cannot, according to the prevailing judicial opinion in this country, so much as ask him at any stage of the prosecution where he was at the time when the crime charged was committed. The terms of our Constitutions are not such as necessarily to demand the construction which has been generally given them by the courts. They have been commonly interpreted with a view to making them as helpful as possible to the accused.[Footnote: Boyd _v._ United States, 116 U. S. Reports, 616.] Provisions against compelling him to testify have been treated as if they forbade requesting him to testify. They would seem, on principle, quite compatible with a procedure under which the committing magistrates should in every case ask the defendant when first brought before them whether he desires to make a statement, telling him at the same time that he can decline if he chooses. Should he then make one, it should be written down at length in his own words, read over to him for his assent or correction, and properly attested. Many a guilty man is now acquitted whose conviction could have been secured on what such a paper would have disclosed or have given a clue to ascertaining. Such an inquiry has long been the English practice. The hearing before the committing magistrate, if any contest is made, generally does not take place until some time after the arrest. Each party is apt to wish time to prepare for it. Meanwhile, the defendant can generally claim the privilege of release on bail, unless the crime be capital and the circumstances strongly point to his guilt. Here our practice differs from that of an English court of inquiry. While there bail must be allowed in case of misdemeanors and may be in case of felonies; the amount required is frequently so large as to be prohibitory.[Footnote: Maitland, "Justice and Police," 131.] The essence of bail is that the prisoner should enter into an obligation, together with one or more others of pecuniary responsibility as his sureties, to appear whenever he may be called for in the course of the pending proceeding, on pain of forfeiting a certain sum of money. All our Constitutions forbid the taking of excessive bail. The sum should be large enough to give a reasonable assurance that he will not allow it to be forfeited. In fixing the amount, which in each case is left to the good judgment of the officer before whom it is taken, special regard should be had to the gravity of the offense, the nature of the punishment in case of conviction, and the means of the defendant or his friends. If too large an amount is demanded, the defendant can get relief on a writ of _habeas corpus_ issued by some superior judge. This privilege of bail in most States extends to, or at the discretion of the court may be allowed at, any stage of a cause, not capital, even after a final judgment and sentence, provided an appeal has been allowed with a stay of execution. Bail is given orally or in writing, according to the practice of the particular State. When given orally, it is termed a recognizance. This is entered into by the personal appearance of those who are to assume the obligation before a proper magistrate or clerk of court, and their due acknowledgment before him that they do assume it. He makes a brief minute of the fact at the time, from which at any subsequent time he can make up a full record in due form. When bail is given in writing, the obligation is prepared in behalf of the government and executed by the parties to it. Whoever gives bail as surety for another is by that very fact given a kind of legal control over him. He can take him into actual manual custody without any warrant, and against his will, for the purpose of returning him to court and surrendering him to the sheriff. This right is a common law right, arising from the contract of suretyship, and is not bounded by State lines. If the principal absconds from the State, the surety can have him followed and brought back without any warrant of arrest. The amount of the bail, should it be forfeited, is payable either to the government or to some other representative of the public interests, as may be prescribed by statute. If the sureties have any equitable claim to relief by a reduction of the amount, there is often given by statute or judicial practice a right to the court in which the obligation was given or before which its enforcement is sought to grant a reduction from the sum which would otherwise be due upon it. When a committing magistrate requires the defendant to give bail to appear in a higher court, and he does not give it, he will be committed to jail to await his trial there. In this court he is sometimes tried on the complaint upon which he was originally arrested: oftener a new accusation is prepared. This may be either an information or an indictment. At common law, no one could be tried for a felony unless a grand jury were first satisfied that there was good ground for it. The grand jury consisted of not more than twenty-four inhabitants of the county, and in practice never of more than twenty-three, summoned for that purpose to attend at the opening of a term of court. To authorize a prosecution the assent of twelve of them was required. They heard only the case for the prosecution, and heard it in secret, after having been publicly charged by the court as to the nature of the business which would be brought before them. The court appointed one of them to act as their foreman, and he reported back their conclusions in writing, and in one or the other of two forms--by presentment or indictment. A presentment was a presentation, on their own motion, of an accusation against one or more persons. They were the official representatives of the public before the court, and it might well be that offenses had occurred, and become matters of common notoriety, prosecutions for which no one cared or dared to bring. Such a proceeding was comparatively rare. The common course was to pass only on such written accusations as others might submit to their consideration. These were called bills of indictment. If the grand jury believed that there were sufficient grounds for upholding any of them, their foreman endorsed it as "A true bill," and it then became an indictment. If, on the other hand, they rejected a bill of indictment as unfounded, the foreman indorsed it as "Not a true bill," or with the Latin term "_Ignoramus_," and this was the end of it. The organization and functions of the American grand jury are similar, except that here we have prosecuting attorneys to procure the presence of the necessary witnesses and direct the course of their examination. In the Federal courts almost all criminal accusations, great or small, are, and by the fifth amendment to the Constitution of the United States all charges of infamous crimes must be, prosecuted by presentment or indictment. In most of the States the intervention of a grand jury is requisite only in case of serious offenses; in some only in capital cases. It is obvious that it is less needed here than in England, since here it is not within the power of any private individual to institute criminal proceedings against another at his own will, but they are brought by a public officer commissioned for that very purpose and acting under the grave sense of responsibility which such authority is quite sure to carry with it. The grand jury, however, has its plain uses wherever political feeling leads to public disorder. It has also, since the Civil War, been found an effective restraint in some of the Southern States, whether for good or ill, upon prosecutions for violations of certain laws of the United States, brought against members of a community in which those laws were regarded with general disfavor. Prosecutions by information are those not founded on a presentment or indictment. The information is a written accusation filed in court by the prosecuting officer. In certain classes of cases, the leave of the court must be first asked in some jurisdictions. It is not necessary that it be supported by any previous statement or complaint under oath. The officer who prepares it acts under an oath of office, and that is deemed sufficient to give probability to whatever charges he may make. If the defendant has already been bound over by a committing magistrate, such an information may take the place of the original complaint on which the arrest was made. If he has not yet been arrested, or if he was arrested and discharged by such a magistrate, the filing of an information is accompanied by a request for the issue of a warrant for his arrest from the court. Such a paper is called a bench warrant, and is granted whenever necessary, whether upon a presentment, indictment, or information. An information may be amended by leave of the court at any time. A presentment or indictment cannot be. They, when returned to court, are the work of the grand jury, and they end its work. An amendment of a legal process can logically be made only by the hand which originally prepared it. This rule leads to the escape of many a criminal. If prosecuted by indictment, the case against him must be substantially proved--in whole or part--as there stated, or he goes free. Prosecuting officers therefore naturally prefer to proceed upon information whenever the law permits it. The intervention of a grand jury is also often the necessary cause of a delay alike prejudicial to the State and to the prisoner. It can only be called in when a court is in session, by which it can be instructed as to its duties and to which it is to report its doings. Months often elapse in every year when no such court is in session. For this reason, in case of a poor man under arrest on a charge of crime, who cannot furnish bail, it would often be much better for him were his liability to be brought to trial to be settled promptly by a single examining magistrate. At the hearing in that case also he has a right to be present and to be heard. Before a grand jury he has no such right. In most States, the great majority of indictments are against those who have already been committed on a magistrate's warrant to answer to the charge, should an indictment be found. The accused thus has two chances of escape before he can be put on trial for the charge against him: one by a discharge ordered by the committing magistrate, and one by the refusal of the grand jury to return "a true bill." A grand jury is more apt to throw out a charge as groundless than a single magistrate. He feels the full weight of undivided responsibility. If he err by discharging the prisoner, he knows that it may let a guilty man go free, untried. If he err by committing him for trial, he knows that, if innocent, the jury are quite sure to acquit him. He acts also in public. The whole community knows or may know the proofs before him, and will hold him to account accordingly. On the other hand, in the grand jury room all is secret. The prosecuting attorney, if admitted, does not remain while the jurors are deliberating over their decision. No one outside knows who may vote for and who against the return of an indictment. Every opportunity is thus afforded for personal friendship for the accused or business connection with him to have its influence. Judges know this, and in their charge often emphasize the importance and gravity of the duty to be performed. In 1903, the prosecuting officer in one of the small counties in Kentucky had prepared indictments against several men of some local prominence for arson and bribery. A special grand jury was summoned to act upon them. There was reason to expect some reluctance on the part of several. Of the witnesses for the State some were no less reluctant. There was great public excitement in the court town. One witness came there over ninety miles by rail hidden, for fear of his life, in a closed chest in the car of an express company. The grand jury were told by the court that they must make their inquiry a thorough one and indict without fear or favor every person in the county who ought to be indicted. "If," the judge added, "the evidence calls for indictments and you don't make them, they will be made anyway. If you do not do your full duty, I will do mine by assembling another grand jury." They did theirs under these stirring injunctions, and the indictments were promptly found. After the indictment or information comes the arraignment. This is bringing the defendant before the court and, after the charge made against him has been read, directing him to plead to it. Before the plea is entered, if he has no counsel, he is asked if he desires the aid of one, and if he responds that he does (or should he not, if the court thinks he ought to have counsel), some lawyer will be assigned to that duty. Some of the younger members of the bar who are present are generally desirous of being so assigned to defend those who have no means to employ such assistance. The court ordinarily makes the assignment from among their number, but in grave cases often appoints lawyers of greater experience and reputation. No one who is so assigned is at liberty to decline without showing good cause for excuse. A small fee is often allowed by statute in such cases from the public treasury. Statutes are also common providing that witnesses for the defense may be summoned at the cost of the government, if the defendant satisfies the court that their testimony will be material, and that he is unable to meet this expense. In the federal courts, in capital cases, the defendant must be furnished with a copy of the indictment and a list of the jurors summoned to court and of the government witnesses, at least two days before the trial. Whether impanelling the jury for the trial of a case is a long or short process will depend largely on the intelligence and firmness of the judge who holds the court. Each side can challenge a certain number of the jurors in attendance without stating any reasons for it, as well as any and every one of them for cause shown. If a juror has formed an opinion as to the guilt of the accused so definite as to amount to a settled prejudice against him, he is incompetent. In grave cases the prisoner's counsel will often seek to examine every juror whose name is drawn at great length as to whether he has such an opinion. A capable judge will keep such an inquiry within close limits. In 1824, an indictment for murder was found in Kentucky against a son of the Governor. The case was one which excited great public interest, and was talked over from one end of the State to the other. The result was that when the trial came on it was found impossible, term after term, to make up a jury of men who, from what they had heard or read, had not formed what the defense claimed and the court thought to be a sufficiently firm opinion as to the guilt or innocence of the accused to justify their exclusion. The legislature was finally appealed to for relief and passed a statute that an opinion formed from mere rumor should not be a ground of challenge. The case was then, in 1827, taken up for the ninth time, but with the same result, whereupon the defendant's father gave him a pardon, on the ground that "the prospect of obtaining a jury is entirely hopeless," and that he had "no doubt of his being innocent of the foul charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII, 336.] When a capital case is coming on, great pains will often be taken by the prisoner's counsel to ascertain the characteristics and disposition toward his client of each of the jurors who have been summoned to court. This has sometimes been carried to the extent of trickery, particularly in some of the Southern States. Agents have been sent over the county to see every man capable of jury service. There is some ostensible reason given for the call. He is perhaps asked to buy a photograph of the accused; perhaps to contribute to a fund to provide him with counsel. This naturally leads to some expression of opinion in regards to the charge made against him, and if the man thus "interviewed" should be afterwards offered as a juror, he is challenged or not challenged according to the information so obtained. In every criminal case the defendant's guilt must be proved beyond a reasonable doubt. A mere preponderance of evidence is not enough. In other respects the rules of evidence are applicable which obtain in civil cases. If a verdict of Not Guilty is returned, the court orders the discharge of the prisoner, as a matter of course, unless provision has been made by statute for an appeal by the State for errors of law committed on the trial. No such appeal can be allowed for the purpose of obtaining a new trial on the ground that the jury came to a wrong conclusion on the facts. This would be to put the defendant twice in jeopardy, which our Constitutions generally forbid. Even under the practice prevailing in the Philippine Islands, where they have no juries, and an appeal to a higher court for a new trial on the merits has always been allowed to either party in a criminal case, as a matter of right, this rule is held to apply.[Footnote: Kepner _v._ United States, 195 U. S. Reports, 100.] If the verdict is one of Guilty, the sentence is pronounced by the judge. He generally has a broad discretion as to the extent and nature of the punishment. For many offenses, either fine or imprisonment or both may be imposed, according to his best judgment. For most, when imprisonment is ordered, it may be for a term such as he may prescribe within certain limits, as, for instance, from one to five years. In a number of States of late years the judge is permitted in such a case to sentence for not less than one year, and it is left to some administrative board to determine later how much, if any, longer the confinement shall last, in view of the circumstances of the offense, the character of the prisoner, and his conduct since his sentence. A considerable and increasing group of penologists is pressing upon our legislatures the extension of the principle of the "indeterminate sentence" by removing the limit of a _minimum_ term. It is doubtful if such a change would satisfy the constitutional requirement of a trial by jury. That in its nature involves a trial before a judge and a sentence imposed by the court upon the verdict. Can that be deemed a judicial sentence to imprisonment which is a sentence to imprisonment during the pleasure of certain administrative officials? Judgments are to ascertain justice. To do this they must be themselves certain. In a purely indeterminate sentence there is no certainty until it has been made certain by the subsequent action of the administrative authorities. It may turn out to be imprisonment for life, and the advocates of this mode of action frankly say that such ought to be the disposition of all incorrigible and habitual criminals. If so, ought not the fate to be meted out to them by judicial authority? Can anything less than that be considered as due process of law? An experienced and able judge seldom makes any serious error in grading the punishment of offenders who have been tried before him. The sentence is not pronounced until they have been fully heard as to all circumstances of extenuation, nor until the government has been heard both as to these and as to any circumstances of aggravation. The sentence, if the offense be a grave one, cannot be pronounced except in the presence of the convicted man. He has an opportunity for the last word. Judges who are neither able nor experienced frequently impose sentences too light or too severe. We have too many such judges in the United States. The real remedy for the evil is to choose better ones. As between judges and boards of prison officers or of public charities, the judge always has the great advantage of having tried the case and heard the witnesses. He ought therefore to be best able to fix the term of punishment. The punishment to which one can be sentenced on a conviction of crime is now generally limited to fine or imprisonment. For graver offenses both may be inflicted: for murder, and in some States for a very few other crimes the penalty is death. The policy of the older States long was to require those whose offenses were directed against property to make good the loss of the injured party. Whipping was also often added, and it was formerly a common mode of punishment throughout the country for all minor offenses. Every colony used it. It was authorized by the original Act of Congress in 1790 on the subject of crimes, and was not abolished for the courts of the United States until 1839. It was provided for in the early statutes of most of the States, and in some still is. Until 1830, it was the only mode of corporal punishment allowed in Connecticut for the general crime of theft. For boys it is often the only punishment that can properly be administered. To fine them is to punish others. To imprison them is, in nine cases out of ten, to degrade them beyond recall. Virginia, in 1898, reverted to it as an alternative to fine or imprisonment in the case of boys under sixteen, provided the consent of his father or guardian be first given. Such a statute seems absolutely unobjectionable from any standpoint. It is often asserted that whipping is a degrading and inhuman invasion of the sanctity of the person. To shut a man up in jail against his will is a worse invasion. But as against neither is the person of a criminal convict sacred. He has justly forfeited his right to be treated like a good citizen. Whether whipping is a degradation or not must depend much on the place of its infliction. The old way in this country, as in England, was to inflict it in public. This puts the convict to unnecessary shame. Let him be whipped in private, and his only real degradation will be from his crime. So inhumanity is needless. A moderate whipping only should be allowed. That is far more humane to most men than a term of jail; that is, it detracts less from their manhood than the long slavery of confinement. Of late years there has been a decided movement in the United States toward a return to the penalty of whipping for atrocious cases of assault or offenses by boys.[Footnote: See Paper on "Whipping and Castration as Punishments for Crime," _Yale Law Journal_, Vol. VIII, 371, and President Roosevelt's Message to Congress in December, 1904.] It is probable that it will find more favor hereafter in the South as a punishment for negroes. Most of their criminals are of that race. The jails have no great terrors for them. They find them the only ground where they can mingle with their white fellow-citizens on terms of social equality. But they are sensitive to physical pain. A flogging they dread just as a boy dreads a whipping from his father, because it hurts. The South may have been held back from applying this remedy in part from the apprehension that it might be considered as reinstating the methods of slavery. No such criticism could fairly be made. Confinement in jail is involuntary servitude, and involuntary servitude is slavery. Whipping is a substitute for it: it saves from slavery. In several of the Southern States, instead of imprisonment, ordinary offenders are set at work in the open air, either on convict farms, or in chain gangs on the highway, or in the construction of railroads or similar works. This plan prevails in Georgia and Arkansas to such an extent that very few are confined in the penitentiary. The convicts in these States are mainly negroes. When, as has been at times permitted, they have been turned over to private employers to work in this manner for wages paid to the State, many of the abuses of slavery have reappeared, and public sentiment is becoming decidedly adverse to the allowance of such contracts for convict labor. Similar objections do not lie in their employment on State farms, and in North Carolina and Texas this has been tried with considerable success.[Footnote: See "Bulletin de la Commission Pénétentiaire Internationale," 5th series, II, 179.] Special courts have been organized, or special sessions of existing courts directed, for the disposition of prosecutions against children in several of the States and in the District of Columbia during the past few years. The judge holding such a "Juvenile Court" or "Children's Court" is expected to deal with those brought before him rather in a paternal fashion. An officer is generally provided, known as a Probation Officer, to whom the custody of the accused is largely committed both before and after trial. He is to inquire into each case and represent the defense at the hearing. In case of conviction, the child can, on his advice, be released on probation, or the sentence can be suspended. For errors of law committed by the judge in the course of the trial the defendant commonly has a right of appeal. Until 1891 this was not true in the federal courts, and a man convicted and sentenced there under an erroneous view of the law and in disregard of any of his rights had no remedy, even in a capital case. It was so in Delaware until 1897. In some States there is a right of appeal in favor of the government as well as of the defendant for errors of law, and this even after a jury trial ending in a verdict of acquittal. It is there held that the common constitutional provision that no man shall be put twice in jeopardy of life or limb is not contravened by the allowance of such a remedy. The writ of error is a stage in the original prosecution. One acquitted of crime is deemed not to be put out of jeopardy unless he has been acquitted according to the forms of law, and after a trial conducted according to the rules of law. What these rules are, in case of dispute between the government and the accused, must be determined by such proceedings in the cause as the legislature may deem best adapted to ascertain them in an authoritative manner. Such a mode may properly be furnished by allowing a resort to a higher court, and a resort in favor of either party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30 Atlantic Reporter, 1110; 48 American State Reports, 202; Kent, _J_., in People _v._ Olcott, 2 Day's Reports, 507, note.] In other States such a review, in favor of the government, of the conduct of the cause is only supported when the exceptions taken are founded on what may have preceded the trial.[Footnote: People _v._ Webb, 38 California Reports, 467.] This distinction is approved by the Supreme Court of the United States.[Footnote: Kepner _v._ United States, 195 United States Reports, 100, 130.] For errors in conclusions of fact the defendant, in certain cases, has a remedy on a petition for a new trial, but in no case can the State ask for one. This is true even though the trial was not had to a jury. There is no doubt that new trials are too often granted in the United States in favor of those who have been convicted of crime. Particularly is this true when they are ordered because of some irregularity of procedure or slip in the admission or exclusion of evidence. A verdict, whether in a civil or criminal case, should stand, notwithstanding it was preceded by erroneous rulings or omissions of due form, unless the court of review can see that substantial injustice may on that account have been done.[Footnote: See Paper on "New Trials for Erroneous Rulings upon Evidence," by Professor J. H. Wigmore, in the _Columbia Law Review_ for November, 1903.] To release a convicted criminal for error in mere technicalities not really affecting the question of his guilt tends to make the people lose faith in their courts and resort to lynch law as a surer and swifter mode of punishment. Appeals in criminal causes are, however, much rarer and also much less often successful than is generally supposed. About eleven thousand persons were convicted of felonies in the County Courts of New York during the five years from 1898 to 1902, inclusive of each, and of these less than nine in a thousand pursued an appeal, not a third of whom secured a judgment of reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_ for March, 1904.] In Massachusetts, about a hundred thousand criminal prosecutions are annually brought, and the appeals to the Supreme Judicial Court from sentences of conviction rarely exceed twenty to twenty-five in number, and upon these in each of the years 1902 and 1903 only two new trials were granted.[Footnote: _Law Notes_ for December, 1904.] A comparison of the number of those put to death in the United States for crime by the courts, and on a charge of crime by a mob, for the past three years shows these results: Executed by Judicial Sentence. Lynched. Total. 1901 118 125 243 1902 144 96 240 1903 123 125 248 A large majority of those lynched were negroes, and met their fate in the South. It is extremely difficult to secure a conviction of those who take part in such acts of violence. They commit the crime of murder, and the penalty is so heavy that their fellow-citizens are unwilling to subject them to it. The offenses with which the men whom they kill are charged are also generally of a nature which make them peculiarly offensive to the community. Many are negroes charged with the rape of a white woman, to whom it would be intensely disagreeable to testify against them. Not a few are men under sentence of death, who it is feared may escape or delay punishment by an appeal. Such considerations cannot excuse, but present some slight palliation for those acts of mob violence by which the people of the United States are so often disgraced. It may be added that out of the Southern States they are quite rare, and in the Northeastern States substantially unknown. Of the one hundred and four lynchings in 1903, only twelve occurred in the North or West. * * * * * CHAPTER XVIII THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT A public officer, whose duties are mainly other than judicial, may be invested with judicial power to be exercised only in certain causes which may be brought before him, in disposing of which he acts as a court. Such an one is a judge only when he is holding court. When it is adjourned, no court exists of which he could be a judge. Justices of the peace and parish judges are officers of this description. But ordinarily judges are appointed to hold some regular court, with stated sessions, which is always in existence. To such a judge considerable powers of a judicial nature are usually given for exercise when his court is not in session. The writ of _habeas corpus_, for instance, may be issued either by a court of record or by a judge of such a court, if applied for when the court is not in actual session. In the latter case, the return of the writ is made to him, the trial had before him, and judgment rendered out of court, or, as it is styled, "at chambers." While sitting for such a purpose, he may be regarded as exercising functions which really belong to the court and acting as a part of it. Statutes often, in case of a court having but a single judge, give him power to hold special courts whenever he may think proper. In such a case no very definite line is drawn between what judicial business the judge does and what the court does. While the proper and normal constitution of a court of record requires the attendance not only of a judge, but of a clerk and a crier or sheriff's officer, the only one whose presence is indispensable is the judge. A District Judge of the United States has this power of holding special courts, and is a court wherever and whenever he pleases to transact judicial business, whether he describes himself in such papers or process as he may issue, as court or judge.[Footnote: The U. S. _v._ The Schooner "Little Charles," 1 Brockenbrough's Reports, 382.] The judges of courts having equitable jurisdiction act often out of court in the issue of temporary injunctions. These are writs directing some one to refrain from doing a certain act. They generally direct it under pain of a specified pecuniary forfeiture; but whether they do so or not, disobedience is punishable also by arrest and imprisonment, being treated as a contempt of court. The need of an injunction is often immediate. It would be worthless unless promptly granted. When, therefore, no court having power to issue one is in actual session, there would be a failure of justice if the judge could not act to the extent of granting temporary relief. Whether the injunction should be made permanent is a subsequent question, to be determined after a full hearing by the court. It may, in urgent cases admitting of no delay, be issued _ex parte_, but ordinarily the defendant is notified and has an opportunity for a summary hearing, either orally or on affidavits, before action is taken. A similar power often vested in judges at chambers is that of appointing a temporary receiver; that is, of some one to take temporary charge of property in behalf of and as agent of the court, when this seems necessary in order to preserve it. If the affairs of a commercial partnership get into such a condition that the partners cannot agree on the mode of conducting it, such an appointment can be made to tide matters along for the time being. So in case of an insolvent debtor his estate may, under certain circumstances, be placed in a receiver's hands by a summary order, issued out of court. It may be added that by the statutes both of the United States and of all the States many powers of a _quasi_-judicial character are conferred on judges to be exercised out of court, such as those of ordering the arrest of one suspected of criminal conduct, examining into the charges against him on his arrest, and admitting him to bail or sending him to jail for want of it. * * * * * CHAPTER XIX APPELLATE COURTS For each of the States and Territories as well as for the United States there is one supreme court of appellate jurisdiction. The Supreme Court of the United States can entertain original actions of certain kinds.[Footnote: See Chap. IX.] A few also of the State supreme courts of appeal have a limited original jurisdiction. This is generally confined to equity causes, election contests and certain actions for extraordinary relief known as prerogative writs, such as informations in the nature of _quo warranto_ and writs of mandamus. The term "appeal" in its strictest signification is confined to a removal of a cause after trial to a higher court for a new trial on the merits. It is also and now more commonly used to denote such a removal for the purpose only of inquiring whether any legal errors were committed on the trial or are to be found in the judgment. In this sense it covers proceedings by a writ of error, and any other mode of reviewing questions of law.[Footnote: See the _Federalist_, No. LXXXI.] If it does not appear from the record of the lower court that any of the errors that may be claimed (or "assigned," as the phrase is) exist, the judgment is affirmed; otherwise the cause is sent back for a new trial or, if the objections are fundamental and fatal to its maintenance, is dismissed. Appellate courts are of many kinds. Some are such exclusively; some mainly. In others the functions of entertaining appeals is a minor one, most of their time being occupied in trying original causes. An appeal from judgments of a justice of the peace, for instance, is generally given on the merits to county courts, but the greater part of the litigation before them comes there in the first instance. So the judgments of county or other minor courts are often reviewable on appeal for errors in law in some superior court which, like them, is principally occupied in the exercise of an original jurisdiction. When the American colonies passed into States, as has been seen, they were habituated to the thought of a supreme controlling authority exercised by one tribunal of a judicial character of last resort. The judicial committee of the Privy Council had administered this sovereign power for them, and for a long period of years, with general acquiescence.[Footnote: See Chap. I.] The uniformity of result thus obtained was acknowledged to be advantageous. It was now necessary to replace them by American courts of last resort, and it was not difficult in doing so to improve upon the English model. The time had come for separating, as far as it could conveniently be accomplished, judicial from political power. Virginia was the first to act. A few days before the Declaration of Independence she adopted a Constitution (under which the government, was carried on until 1830, though it was never formally submitted to or ratified by the people) providing for a separate judiciary headed by a Supreme Court of Appeals whose judges should hold office during good behavior, and be ineligible to the Privy Council or General Assembly. This divorce of judiciary and legislature was not the plan universally followed. New Jersey, in which as a colony the Governor and Council had possessed an appellate power like that vested in the English House of Lords, was so well satisfied with this arrangement as to continue it in her Constitution of July 3, 1776, and up to the present time puts upon her Supreme Court a certain number of judges who give but a part of their time to this work, and are not necessarily (though in practice of late years they generally have been) lawyers. New York, in her Constitution of 1777, pursued a somewhat similar plan. Her highest court was one "for the trials of impeachments and the correction of errors." Its members were the Senate with the Chancellor and judges of the Supreme Court. When a judgment of that court was brought up for review the judges were to state their reasons for giving it, but had no vote. This scheme was adhered to with little modification until 1846. What made it tolerable was that many of those elected Senators were naturally lawyers, and that to be in the Senate soon became the ambition of a lawyer with any desire to know how it would feel to be a judge. Able and learned opinions were pronounced by such men in exercising their judicial functions, and some of them in the New York reports are still frequently the subject of reference as clear and satisfactory statements of legal principles. Connecticut, in 1784, when she instituted for the first time a court of last resort, made it up of the Lieutenant Governor and the twelve Assistants, and soon added to it the Governor himself. A plan of this kind was likely to work in that State, as in New York, better than it looked. Lawyers by this time had come to fill most of the higher offices of state. Although the Assistants were elected annually it was under a complicated scheme of nomination, which, unless in case of a political revolution, ensured re-election in every case. A majority of the Assistants were always members of the bar. They were also Federalists from the beginning of party divisions in the country. Naturally, the Republicans found such a state of things intolerable. All the power of government in Connecticut, said one of those who were celebrating Jefferson's second election to the Presidency in 1804, "together with a complete control of elections, are in the hands of seven lawyers who have gained a seat at the council board. These seven men virtually make and repeal laws as they please, appoint all the Judges, plead before those Judges, and constitute themselves a Supreme Court of Errors to decide in the last resort on the laws of their own making. To crown this absurdity, they have repealed a law which prohibited them to plead before the very court of which they are Judges." Attacks like this were too just to be resisted, and two years later the Governor, Lieutenant-Governor and Assistants were replaced by the Judges of the Superior Court. Constitutional provisions that the right of trial by jury shall be preserved inviolate preclude, as a general rule, the establishment of courts in which the judges can make a final disposition of petty causes which turn on disputed facts. An appeal from their decision must be allowed, and a new hearing given on the merits in a court furnished with a jury. Under the Constitution of the United States a trial by jury cannot be claimed in civil cases at common law involving a demand of not over twenty dollars, and in most of the older States it cannot be in cases where it was not a matter of right prior to the adoption of their Constitutions. The verdict of a jury can only be reviewed on its merits by a court of last resort where it was clearly and palpably against the weight of evidence, and in order to do this the whole evidence given in the trial court must be certified up. Where a judgment has been rendered on a finding of facts made by a judge in a cause of an equitable nature, this finding can, in the courts of the United States and in many of the States, be reversed on any point on appeal. For this purpose also all the evidence that was before him, or all that is pertinent to questions involved, must be reported to the court above. Except so far as the right of trial by jury may require it, it is a matter of legislative discretion whether to give any remedy in a higher court for the errors of a lower one. In some States an appeal is given from a judgment of an inferior court even though rendered on the verdict of a jury, to a higher one where another trial may be had before a judge of presumably greater ability. In many States errors in law of petty courts may be reviewed in higher trial courts. In a few of the larger ones, as in the United States,[Footnote: See Chap. IX.] errors in law of the higher trial courts, in a considerable class of cases, are finally disposed of in an intermediate appellate court, constituted to relieve the court of last resort from an overweight of business. * * * * * Ordinarily it is the statutory right of a defeated litigant to take an appeal, provided he can state any colorable ground of exception. In some jurisdictions he is required to obtain the approval of the trial court or else of some member of the appellate court. There are many judges who think that such a practice should be universally adopted. It would certainly tend to relieve the dockets of appellate tribunals, and to bring lawsuits to a speedier end. If one were sure that the judge to whom application was made for an approval of the appeal would always act intelligently and impartially, such a precaution against useless litigation would be admirable. But the trial judge is not in a position that naturally leads to an unprejudiced judgment. The appeal is asked on account of mistakes of his, and he will not be apt to think that he has made any. The judge of the appellate court will be impartial and unprejudiced, but he will have a very imperfect knowledge of the case. He could only be asked to make a hasty examination of the points involved, and it would be quite possible for him to reject as frivolous grounds which, on a lengthy investigation after a full argument, might have seemed to him substantial. In view of these objections, and of the unequal attainments and experience of the different judges of our courts, the bar are generally in favor of making appeals a matter of right; and what the bar favors in such a matter the legislature usually enacts. * * * * * The opinions and judgments of all American courts of last resort are officially reported for publication. At first they were not so reported. The earliest volume of American judicial decisions (Kirby's) was published in 1789 as a private venture. A few years later the States began to provide official reporters for their highest courts and soon assumed the expense of publication. There are now more than fifty current sets of federal and State reports, the annual output being about four hundred volumes, containing 25,000 cases. The mere indexing and digesting of these reports for the use of the bench and bar has become a science. While consulted by comparatively few who are not connected with the legal profession, they constitute a set of public records of the highest value to every student of history and sociology.[Footnote: See "Two Centuries' Growth of American Law," 6.] It is the custom to prefix to the report of each case a head-note stating briefly the points decided. Ordinarily this is the work of the reporter. In a few States the judges are required to prepare it; and to do so then naturally falls to the lot of that one of them who wrote the opinion. Occasionally the head-note contains statements not supported by the opinion. In such case the opinion controls unless it is otherwise provided by statute. It has not been the usual custom of English judges of courts of last resort to write out their opinions. They have commonly pronounced them orally and left it to the reporters to put them in shape. The consequence has been that English reports have a conversational tone, and are not free from useless repetition. This has been not only a matter of tradition but of necessity. The English judges have always been few in number. Their time has been largely occupied in the trial of cases on the facts. It is only in recent years that certain judges have been set apart especially for appellate work. American judges, on the other hand, are numerous. There is the waste of energy in our judicial system which is the necessary concomitant of the independent sphere belonging to each separate State. Combination of all of them into one empire would make it easy to reduce the judiciary to a tithe of its present numbers. Their salaries are part of the price we pay--and can well afford to pay--for our peculiar system of political government, under which every State is an _imperium in imperio_. The ever-increasing number of our States, each with a body of law not exactly like that of any other, and each with a written Constitution which is its supreme law, requires a court of last resort in each. Experience tends to show that it ought not to be composed of less than five. There should certainly be an uneven number to facilitate decisions by a majority; and unless a minority consists of as many as two, its dissent is apt to carry little weight in public opinion. In most of the States the court of last resort is not overworked. In some the judges find time to do considerable circuit duty in the trial of original causes. This keeps them in touch with the daily life of the community, and is so far good. On the other hand it disqualifies them from sitting on an appeal from their own decisions, and so either reduces the number of the appellate court occasionally below that which is normal and presumably necessary, or involves calling in some one to act temporarily, which imperils the continuity of thought and uniformity of doctrine which should characterize every such tribunal. There is also a certain natural bias, insensible perhaps to themselves, which tends to make appellate courts stand by one of their members whose rulings while holding a trial court are brought in question. For these reasons it has now become common for the States to confine their appellate judges exclusively to appellate work. The time, therefore, which the English judge gives to circuit duty the American judge can give to writing out his opinions with all the art and care which he can command. He speaks in most instances to a small audience--the bar alone. But it is the bar of this year and the next year and the next century. Every volume of reports is part of the history of American jurisprudence and of American jurisprudence itself. Occasionally some case arises which involves large political questions, or one of especial local interest. The opinion is then read more widely. The newspapers seize it: reviews take it up. It is not always easy to anticipate what decision will become a matter of public notoriety; what opinion will be quoted as an authority in other States; and what drop unnoticed except by the lawyers in the cause. A judge, therefore, though he have no better motive than personal ambition, is apt to do his best in every case to state the grounds of his conclusions clearly and in order. A certain style of American judicial opinion has thus grown up. It is dogmatic. It offers no apologies. There is neither time nor need for them. The writer speaks "as one having authority." He does not argue out conclusions previously settled by former precedents, but contents himself with a reference to the case in the reports in which the precedent is to be found. He is as brief as he dares to be without risking obscurity. It is undoubtedly true that many reported opinions are of a very different type. Some of Marshall's assume a tone of apology; but in his day it was needed. He struck at cherished rights of States, upheld by their highest courts, and struck them down, at a time when the country was unfamiliar with the conception of the United States as a national force. Many of those of judges of inferior ability do not rise above their source. They are verbose, repetitious, slovenly, inaccurate in statement, loose in form; perhaps sinking into a humor or sarcasm always out of place in the reports;[Footnote: See, for instance, Mincey _v._ Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel, _ibid_., 415; Hall-Moody Institute _v._ Copass, 108 _id_., 582.] possibly unfair in describing the claims that are overruled. But, as a whole, Americans need not fear to compare the reports of their courts with those of foreign tribunals. No judicial opinions, viewed from the point of style and argument, rank higher than some of those written by American judges. Those of appellate courts are generally composed and delivered by a single one of their members, but he speaks not only for the court but for every other member of it who does not expressly dissent. Nevertheless, as their conclusions depend on one man for their proper expression, the responsibility for the particular manner in which the opinion may set them forth is properly deemed in a peculiar sense to rest upon him. Nor, if the opinion is afterwards relied on as establishing a precedent, is the court bound by anything except the statement of the conclusions necessary to support the judgment. If unsound reasons for those conclusions are given, defective illustrations used, or unguarded assertions made, it is chargeable with no inconsistency in subsequently treating them as merely the individual expressions of the judge who wrote the opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107 Mass. Reports, 37, 41. This position is not, universally accepted. See Merriman _v._ Social Manufacturing Co., 12 R. I. Reports, 175, 184.] When Marshall became Chief Justice of the United States he introduced the practice of writing all the opinions himself, and with a few exceptions maintained it for ten years, and until, by successive changes in the court, a majority were Republicans. This, as has been well said, "seemed all of a sudden to give to the judicial department a unity like that of the executive, to concentrate the whole force of that department in its chief, and to reduce the side justices to a sort of cabinet advisers."[Footnote: Thayer, "John Marshall," 54.] In some of the State Supreme Courts in early days, it was the practice for the Chief Justice to deliver an opinion in every case, but his associates frequently added concurring or dissenting ones. Of late years the business of appellate courts in the United States and in most of the States is so considerable that it is necessary to divide the labor, and the cases are generally distributed equally for the preparation of opinions. It is the prevailing practice to have the opinion, when drafted by the judge to whom that duty is assigned, typewritten or printed, and a copy sent to each of the other judges for their consideration separately. At a subsequent conference each judge is called upon by the Chief Justice to state whether he concurs in it, and if alterations are proposed there is opportunity for their discussion. This practice did not become general until the latter part of the nineteenth century, when the typewriter had come into common use. Prior to that time the draft opinion was ordinarily first made known by its author to the other judges either by reading it aloud at the final consultation or by sending one manuscript copy around to each in succession for his endorsement of approval or disapproval. In some courts it was never thus submitted at all, and so they were occasionally committed to positions which they had never intended to adopt and afterwards found it necessary to repudiate.[Footnote: See for an example of this Wilcox _v._ Heywood, 12 R. I. Reports, 196, 198.] Our courts of last resort generally have before them a printed statement of the doings in the lower court which they are asked to review, and a printed argument from each party to the appeal. Oral arguments are also usually heard, except in a few States where the press of business renders it practically impossible except in cases of special importance. Such a press occurs mainly in the largest States, but exists also in some whose Constitutions make it easy and over-cheap for every defeated litigant to carry his case up to the highest court. In the Supreme Court of Georgia no costs exceeding $10 can be taxed against the unsuccessful party; and it has had eight hundred cases in one year upon its docket. In most States he has substantial costs to pay. These mainly are to meet the expense of printing the record sent up from the court below. A single case will sometimes fill a volume or even a set of volumes, particularly in equity causes in the federal courts, in which all the testimony is generally written out at length. The appellant has to pay for the printing in the first instance, but ordinarily, if he succeeds, the other party will be obliged to reimburse him. The cost involved is occasionally several thousand dollars. The party taking the appeal must file a paper stating his grounds for it separately, distinctly, clearly and concisely. There is a temptation to include all that can be thought of, good, bad and indifferent; and whether this is done or not will depend largely on the opinion which the lawyers have of the ability of the court. In the smaller States the judges have time to enable all to study each case with care. In the largest ones it is not uncommon to assign every case on the docket, in advance of the argument, to a particular judge. He is expected to give it special attention with a view to reporting his conclusions upon it to the court, and, should they be approved in consultation, to writing out its opinion subsequently. The assignment for a term of court is not infrequently made in the order in which the docket (or printed list of cases to be heard) is made out, the chief justice taking the first case, the senior associate justice the second, and so on. At the next term the same practice will be pursued, except that the justice next in seniority to the one who had the last case under the previous assignments will now take the first case on the new list, and the next junior justice the second. Appellate courts generally sit not over four or five hours a day; this time being either preceded or followed by a consultation. They are seldom in session more than five days in the week. The cases before them are not usually assigned for argument on particular days. A list is made up of all which are ready to be heard, numbered in order, the oldest first. They are then taken up successively as reached, and the counsel concerned in each must be ready at their peril. Often a limit is fixed by rule as to the number of cases that can be called for argument in any one day. In the Supreme Court of the United States this is the practice, and the number is ten. In some of the States it rises as high as twenty. At the first consultation over a case which has been argued, the Chief Justice (unless a special assignment has been previously made of it to some particular member of the court) asks the junior justice his opinion as to the proper disposition to be made of it, and each justice in turn then gives his, in the reverse order of seniority. If there is any serious disagreement the matter is generally allowed to stand over for further discussion later. At some convenient time after the views of the various justices have been ascertained the cases are distributed and, as a rule, equally for the purpose of preparing the opinions. This distribution is sometimes made by the Chief Justice and sometimes by agreement, or according to the arrangement of the docket. Until the opinion has been finally adopted it is not usual to announce the decision. Not infrequently the ultimate decision is made the other way, and a new opinion prepared by the same, or, if he remains unconvinced that his first one was wrong, by another judge. Still more often the draft opinion is altered in material points to meet criticisms and avoid dissent. Dissenting opinions are comparatively rare, particularly in courts where there is a Chief Justice with the qualities of a leader; that is, with ability, learning and tact, each in full measure.[Footnote: Perhaps tact counts the most, for the Chief Justice has the advantage of hearing the opinions of all his associates at all consultations before he gives his own. Senator Hoar makes a pungent comment on Chief Justice Shaw's want of it, in his Autobiography, II, 413.] Every instance of dissent has a certain tendency to weaken the authority of the decision and even of the court. Law should be certain, and the community in which those charged with its judicial administration differ irreconcilably as to what its rules really are, as applied to the transaction of the daily business of life, will have some cause to think that either their laws or their courts are defective and inadequate. For these reasons judges of appellate courts often concur in opinions, of the soundness of which they are only convinced because of the respect they entertain for the good judgment of their associates. They are willing to distrust themselves rather than them. Not seldom, however, dissent and the preparation of a dissenting opinion has in the course of time, aided, perhaps, by some change of membership, converted the court and led to overruling a position incautiously taken which was inconsistent with settled law.[Footnote: A striking instance of this is the case of Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State Reports, 401; 94 _id_., 302; 102 _id_., 370; 113 _id_., 126; 6 Atlantic Reporter, 453.] More than eighty out of every hundred of the opinions delivered in the courts of last resort of each State of the United States, excepting one (New Jersey), and contained in the last volume of the reports of each published prior to June, 1904, were unanimous. In New Jersey seventy-three out of every hundred were. In two States, Maryland and Vermont, there was dissent in but two out of every hundred cases, and in all the States taken together, out of nearly 5,000 cases decided a dissent is stated in 284 only. This made the proportion of unanimous decisions of State courts, in the country at large, to those in which there was dissent nineteen to one.[Footnote: _Law Notes_ for June, 1904, p. 285.] A dissenting judge sometimes files an opinion which is then printed in full in the reports. More often the fact of his dissent is simply noted. In cases involving constitutional questions it is rare for a dissenting judge not to state his reasons. The importance of the subject justifies if it does not demand it. As Mr. Justice Story once observed, "Upon constitutional questions the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent."[Footnote: Briscoe _v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.] The official reports of the courts have some of the faults of officialism. They often do not appear until long after the decisions which they chronicle have been made and their general make-up is sometimes unworkmanlike and unscientific. It requires rare gifts to make a good reporter of judicial opinions. He must have the art of clear and concise statement; the power to select what is material and drop the rest; and the faculty of close analysis of abstract reasoning.[Footnote: Four of the reporters of the Supreme Judicial Court of Massachusetts have been appointed justices of that court, largely in consequence of their good work in reporting. A good reporter always has the making of a good judge.] Many of our reporters also are practicing lawyers of no special training for the work, and who give to it but a portion of the year. The modern sense of the value of time, of scientific treatment of whatever can be treated scientifically, and of uniformity in scientific methods led toward the close of the nineteenth century to competition in reporting. Private publishing houses undertook the prompt publication, in scientific arrangement upon a uniform plan, of the opinions of the courts. This work began in 1879. The result has been that the series of official reports of the Circuit Court of Appeals of the United States has been discontinued, and that the decisions of all our other appellate courts are now twice reported. One publishing house has grouped the States into clusters, issuing for each cluster its own series of reports, known, respectively, as the Atlantic, the Northeastern, the Northwestern, the Southeastern, the Southern, the Southwestern and the Pacific Reporters. The States forming each group have been selected mainly because they were neighbors geographically, but partly from commercial reasons. Thus Massachusetts, which would naturally be assigned to the Atlantic Reporter, has been put into the Northeastern; and such inland States as Kansas and Colorado find their place in the Pacific Reporter. All the reported decisions of all the States in each group are printed in pamphlet form weekly, as they may be handed down, in chronological order; and every few months the whole issued as a bound volume. In this way, for a trifling sum a copy of any opinion of any American court of last resort can be had in a few days or weeks after its announcement, and a lawyer's library can, at slight expense, be furnished with the decisions not only of his own State but of several others having not unlike laws and institutions. The multiplication of American reports makes judicial precedents of decreasing value to the American lawyer. English cases are cited as authority far less frequently than they were before the middle of the nineteenth century. The omnipotence of Parliament and the free hand with which that has been exerted to change the common law have tended to separate English from American jurisprudence. Our written Constitutions have perpetuated here ideas of government and property which England does not recognize. Hence American precedents are of more use than English. But American precedents are becoming so numerous that the advocate who seeks to avail himself of them is tempted to cite too many and to examine them with too little care. In each State its own reports are the expression of its ultimate law. With these every member of its bar must be familiar. But the courts before which he argues listen to him with more satisfaction and greater benefit if he deals with the principles of law rather than with foreign precedents which may or may not correctly apply them.[Footnote: See a valuable statistical article on "Reports and Citations" in _Law Notes_ for August, 1904.] Not every opinion which is delivered is officially reported. In most States the court has and exercises the power of directing that such as they may deem of no substantial value to the profession at large shall not be. Many are simply applications of familiar rules which obviously control. Opinions of that kind interest only the lawyers in the cause. In the unofficial reports, however, such cases are sure to appear and the bar is divided in opinion as to whether they should not also be given a place in the official ones. It is not always easy for the court or the reporter to determine what decision may thereafter be relied on as a precedent. Repeated instances have occurred in which such a use has in fact been made and properly made of some not noted in the regular reports, and not infrequently they have subsequently been inserted in them.[Footnote: In the centennial volume (Vol. CXXXI) of those of the Supreme Court of the United States, one hundred and twelve opinions are printed, the first delivered over fifty years before, which previous reporters had thought best to omit, and two hundred and twenty-one more such are published in Vol. CLIV. Whoever runs them over will be apt to think that the previous reporters were right.] There is also in case of an opinion not to be officially reported a loss of a valuable safeguard against unsound decisions. A judge writes with more care and examines the points of law which may be presented more closely if he writes for the public and for posterity. On the whole the prevailing sentiment is that the reasons for repressing some are stronger than those for publishing all judicial opinions. It will be few only that, under any circumstances, will be omitted. The leading lawyers in every State are expected to run over, if they do not read, every case in every new volume of its reports. Every case dropped lightens this task. It helps to keep indexes of reports and digests of reports and legal treatises within reasonable limits. It cuts into an accumulating mass of material, most of which must, in any event, so far as points of law are concerned, be a mere repetition of twice-told tales, that is becoming so vast in the United States as to becloud rather than illuminate whoever seeks to know what American law really is. If reporters will not select and discriminate between adjudged cases publishers can and will. Many sets have been prepared and issued in recent years of selected cases on all subjects taken from the official reports of all the States. Their professed aim has been to include all worth preserving. In fact, they have naturally been guided to a considerable extent by commercial considerations. To every lawyer the leading cases in his own State are of the first importance. He is not likely to buy any compilation in which a number of these do not appear, even if intrinsically, as statements of law, they may be of no great value. Hence in the collections in question the rule of selection is often the rule of three, and they are apt to contain a certain proportion of the decisions of every State. The leading sets are the "American Decisions," running from 1760[Footnote: Long after the publication of Kirby's Reports in 1784, some unofficial reports were published of cases decided in colonial courts prior to any which he included.] to 1869; the "American Reports," from 1869 to 1886; the "American State Reports," from 1886 to the present time, which three sets include over two hundred and fifty volumes and nearly 40,000 opinions; and the "Lawyers' Reports Annotated," now extending over more than sixty volumes, the first of which was published in 1888, and contains no cases reported prior to the preceding year. Spencer's rule of social evolution that all progress is from the homogeneous to the heterogeneous tends steadily and inexorably in the United States to lessen the value of judicial reports out of the State in which the cases were decided. Each of forty-five different commonwealths is building upon legal foundations that are not dissimilar, but some of them are advancing far faster than others, and none proceed at exactly the same rate or on exactly the same lines. They are building by statute, by popular usage and by judicial decision. Heterogeneity is most marked in legislation and it tells most there. Whoever looks over a volume of reports will find a large proportion of the cases turning upon some local statute. An important index title is that of "Statutes Cited and Expounded." In Vol. 138, for instance, of the Massachusetts Reports (a volume selected at random for this purpose), 223 statutes or sections of statutes are noted as having been made the subject of remark in the 170 cases which it contains. Almost all are Massachusetts statutes, a very small proportion of which have been re-enacted elsewhere. Appellate courts thus forced at every turn to study with care into the effect of local legislation, much of which, to get at its meaning, must be traced back historically through various changes during a long course of years, and in the older States sometimes for centuries, listen unwillingly to citations from decisions of other States which are even remotely affected by the statutes that may be there in force. The newer States and those with a small population are naturally the ones that rely most on foreign authority. In the last volume (Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases cited in the opinions of the court are of that kind. In the last volume (Vol. 178) of the New York Reports, the percentage is but thirty, and in the last of the Massachusetts Reports (Vol. 185) it is only twenty-five.[Footnote: _Law Notes_ for April, 1905, 8.] * * * * * In the Supreme Court of the United States and in several of the appellate courts of the larger States each judge is provided with a clerk at public expense. While this is a means of relief from much which is in the nature of drudgery, it sometimes leads to a deterioration in the quality of the judicial opinions. A dictated opinion is apt to be unnecessarily long, and when a clerk is set to looking up authorities, although he can hardly be expected always to select the most apposite, it is easier to accept his work and use what he has gathered than to institute an independent search. Some of the appellate courts which are most fully employed, both State and federal, are provided with special libraries of considerable extent, and each of the individual judges is also often furnished with an official library, sometimes containing several thousand volumes, for his personal use, to be handed over to his successor when he retires from office.[Footnote: In New York, the private library of the Court of Appeals contains over 6,000 volumes, comprehending all the reports of all the States, and the personal libraries provided for each judge have come to comprise 3,500 volumes.] In some States counsel have the right to demand to be heard before a full court, and those who have taken the appeal generally exercise it. As decisions go by majorities, the chance of reversing a judgment before, for instance, a court of five, which is a common number, is obviously greater when all its members sit than when four do. In either case it must be the act of three judges, and one is more likely to convince three out of five than three out of four. In the Supreme Court of the United States there is no means of supplying the place of a judge who is absent or disqualified. The remaining members, provided they constitute a quorum (that is, a majority), proceed without him. In most of the States there is some provision for filling the vacancy in such a contingency. Sometimes it is by calling in a judge of an inferior court; sometimes by application to the Governor for the temporary appointment of some member of the bar as a special associate justice to sit in a particular case. In several of the larger States all the members of the court of last resort do not and need not sit in every case. In some two permanent divisions are constituted, to each of which certain judges are assigned, and both divisions may be in session at the same time. In other States certain judges are detached for a certain time, during which they study causes which have been argued and prepare opinions. This done, they resume their seats, and others are released for similar duties. In Ohio, for instance, the Supreme Court consists of six judges and commonly sits in two divisions of three each, having equal authority. The whole court sits to hear any cause involving a point of constitutional law. It also decides those which have been heard in one of its divisions and in which the divisional court is in favor of reversing the judgment appealed from. An affirmance by the divisional court is final, but if it inclines to a reversal the judges communicate their opinions to the full court, which also reads the printed briefs submitted on the original argument, and then without any further oral hearing pronounces final judgment. Four judges, therefore, at least, must concur to accomplish a reversal. Should the full court in any case be equally divided, the judgment appealed from stands. Under the Constitution of California (Art. VI, Sec. 2) the Supreme Court, which consists of seven judges, ordinarily sits in two departments. Three judges can render a decision, but the judgment does not go into full effect for thirty days unless three, including the Chief Justice, have given it their approval. The Chief Justice also, with the concurrence of two of his associates, or four of these without his concurrence, can direct that any cause be heard before a full court within thirty days after judgment by a department court. He can also order the removal into the full court of any cause before judgment. In Michigan only five out of the eight judges sit to hear a case, and if one of them files an opinion dissenting from that of his associates, the losing party can demand a rehearing before the full court. Neither the bar nor the bench are quite satisfied with such methods of appellate procedure. The Ohio scheme is excellently adapted for the dispatch of business, but may prevent an oral argument before those who are ultimately to decide the cause. That of California often protracts litigation. Any such plan of division also must increase the risk of the court's taking a position inconsistent with one which it had previously assumed. The judges in one division may come to conclusions different from those reached in the other division; or where the court does not sit in divisions, a point may be determined by a narrow majority in one case which in a later one, through the substitution of one or two judges for those who heard the former, may be ruled the other way. The freedom of appeal which is generally conceded to defeated litigants in this country has been made the subject of severe criticism. It seems, however, a necessary incident of our political institutions. They are built upon the foundation of a profound reverence for the rights of the individual and of the equality of all before the law. Our Constitutions guaranty every man against deprivation of life, liberty or property without due process of law. If we could count on having as judges of our trial courts none but men of ability, learning and independence, it might be safe to leave it to them to say what this due process was. But the tenure of judicial office in most States is too brief, the pay too meagre, and the mode of appointment too subject to political influence to give always that assurance that could be wished either of the independence of the judiciary or of its representing only what is best in the legal profession. In England, until recently, there was little or no right of review in favor of one convicted of crime. But the judges are appointed for life on ample salaries, and tradition requires that they be selected only from among the leaders at the bar. Nor is the right of the individual against the State deemed so sacred under English as under American institutions. It cannot be in any country where an hereditary aristocracy has from ancient times had a share in government. As has been seen, the English practice in this respect for nearly a hundred years was adopted in the courts of the United States, but public sentiment finally pronounced against it. Much less could it be safely followed in the States, where criminal courts are often held by judges of little ability, less learning, and inferior standing at the bar, to which, after the expiration of a brief term, perhaps of but a year, they will return should they fail to secure a party renomination. The same reasons, if in less degree, support a liberal right of appeal in cases involving property only, and oppose restrictions based only on the amount in controversy. Americans could never tolerate keeping their appellate courts for the trial of large causes only. There must be no rich men's courts. There certainly must be none to which a claim of right founded on a constitutional provision cannot be carried up, however trifling in pecuniary value may be the matter in demand. Most appeals fail. There are few in which the counsel who takes them are fully confident of success. Every lawyer of large experience knows that he has often won when he expected to lose, and lost when he expected to prevail. There are not many cases involving large pecuniary interests or strong personal feeling that are not appealed if there is any color for it. The proportion of appeals which are successful will generally be not far from a third of the whole number taken. Of course, however, this must depend largely on the competency of the trial judges in the court where it is claimed that errors have occurred. The abler and more experienced those who do circuit duty may be, the oftener will their doings be supported in the court of last resort. Short terms of office and consequent lack of practical acquaintance with the business of a trial judge is the real cause why so many appeals are taken, and are allowed to be taken in our American States. As for the federal courts of appeal, there is another and unavoidable occasion for large dockets. They have the last word to pronounce on constitutional questions, and there has probably never been a year since the United States came into existence when the legitimate powers of the general government have not been repeatedly infringed upon by State legislation. In the Supreme Court of the United States, the reporter began its second century with a plan of stating the number of cases affirmed or reversed at each term, but dropped it after two years. The record of these years was as follows: Affirmed Reversed October Term, 1890 248 104 October Term, 1891 185 103 A tabulation of the decisions reported in the various States in their last volumes published prior to June, 1904, shows that on a general average, in sixty-three out of every hundred appeals the judgment of the inferior court was affirmed. In Massachusetts the percentage was eighty-seven per cent. In Texas it was only thirty-four per cent., and in Arkansas and Kentucky not much over forty per cent.[Footnote: _Law Notes_ for June 1904, p. 285.] Many more appeals are taken by convicted persons in criminal cases at the South than in the North. Many more criminal prosecutions are brought there, in proportion to the population. This is due largely to the presence of so large a body of colored people, most of whom have had a very inferior education and training. Many more such appeals are successful also in the South than in the North. In the reports of the courts of last resort of Alabama, Florida, Louisiana and Mississippi between December 20, 1902, and April 25, 1903,[Footnote: As given in Vol. XXXIII of the Southern Reporter.] ninety-four criminal cases appear, in forty-six of which the judgment of conviction was set aside. In Connecticut, Delaware, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island and Vermont between March 12 and June 25, 1903,[Footnote: As given in Vol. LIV of the Atlantic Reporter.] the reports show only twenty such cases, of which seven were set aside.[Footnote: _Law Notes_ for September, 1903, 105.] This would seem to indicate either that the trial judges of criminal courts in the Gulf States are careless or that the appellate courts there (under the pressure, perhaps, of unwise statutes)[Footnote: See Paper on "Judicial Independence," by Justice Henry B. Brown in the Reports of the Am. Bar Association for 1889, 265.] are inclined to be too technical. If either is true it is a just cause for public dissatisfaction with the administration of criminal justice, and some palliation for the frequent resorts to Lynch law by the Southern people. The American plan of written opinions, at least in all cases of novelty or general interest, works better in small States than in large ones. No judge can find time to prepare more than a certain and quite moderate number in a year, if they are such as they should be. The shorter they are, the more time generally has been spent in condensing them. In a great State there must, therefore, either be a larger number of judges, or every few years there must be a temporary addition to the judicial force to clear off an accumulation of cases. The latter expedient is generally preferred. Sometimes a small number of lawyers are selected to serve as a special commission of appeals. They sit by themselves, but there may be a provision for their submitting their opinions to review by the regular court. Some of the leading cases in our reports have been decided by such commissioners. In California, where such a body now exists, its members are appointed by the court, and removable at its pleasure; but ordinarily they are chosen by the executive or legislative departments. Sometimes when the cases on the docket of the court of last resort reach a certain number (in New York this is put at 200) the Governor may call in judges of the next court in rank to sit with the regular judges until the accumulation is cleared off. Fewer causes can be heard and disposed of in American appellate courts than in those of other countries by reason of two things, our practice of delivering written opinions and the fulness of treatment thought necessary in such opinions, especially when they deal with questions of constitutional law. In France, the Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these, 219 were sustained and 597 rejected.] Nothing approaching this number could be properly disposed of on the merits in any American Court of last resort. Many appeals, however, are here, as everywhere, abandoned or dismissed for some failure to comply with the rules of practice or because manifestly frivolous, and in these no opinions are ordinarily given. During the court year closing with the Summer of 1903, the Court of Appeals of New York filed only 221 opinions, although it disposed, in one way or another, of 640 cases; and the Supreme Court of the United States filed 212 opinions and disposed of 420 cases.[Footnote: See Chap. XXIV.] In the calendar year 1904, the Court of Appeals of New York filed 327 opinions, and the Supreme Court of Illinois over 500. * * * * * CHAPTER XX THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS OF COURT No court can with propriety pass a decree which it cannot enforce.[Footnote: Clarke's Appeal from Probate, 70 Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178 U. S. Reports, 186.] After the judgment comes the issue of appropriate process to compel obedience to it, unless such obedience (as is generally the case) is voluntarily rendered. The whole power of government is at the command of the court for this purpose. A sheriff with a judicial process to serve who meets with resistance can summon to his aid the _posse comitatus_. By this term is meant the whole power of his county; that is, any or all of its able-bodied inhabitants on whom he may choose to call. Not to respond to such a call is a legal offense. The marshals have similar powers in serving process from the Federal courts. The fact that there is this force behind a writ is so well understood by the community that occasions for resorting to its use, or indeed to the use of any actual force, are extremely rare. If the process was lawfully issued, it would be useless to resist. If unlawfully, it is easier and safer to seek relief by an injunction, or in case of an arrest, by a writ of _habeas corpus_. But there have been occasions in the judicial history of the United States when, under the influence of a general popular ferment, the service of process from the courts, and even the holding of courts, have been forcibly prevented. Shay's Rebellion in Massachusetts (in 1786) was the first of these after the Revolution. Similar uprisings of less importance took place at about the same time in New Hampshire and Vermont. A few years later, the service of process from the New York courts was interrupted in Columbia County. There was a strip of territory adjoining the Hudson River, title to which was claimed both by New York and Massachusetts. Conflicting claims, awaking much bitter feeling, arose under grants from each government. In 1791, the sheriff of Columbia County was ordered by the courts, in the course of a lawsuit, to sell a tract of this land. Seventeen persons disguised as Indians appeared at the time of sale to resist it, and he was killed by a shot from one of them.[Footnote: Report Am. Historical Association for 1896, I, 152, note.] Then came the Whiskey Rebellion in Pennsylvania. The statutes of the United States[Footnote: United States Revised Statues, 5299.] provide that if their courts meet with opposition of a serious nature, the President may use the army or call out the militia of one or more States to restore order. Opposition to the enforcement of the revenue tax on whiskey in 1794 called for the first exercise of this power. Marshals were resisted in serving process, and several counties were in a state of insurrection. Washington sent so large a force of troops to suppress it that the rioters vanished on their approach, and there was no further obstruction of the ordinary course of justice. The total expense to the government in this affair was nearly $1,000,000.[Footnote: Wharton's "State Trials," 102.] In 1799, somewhat similar opposition arose in the same State against the enforcement of the house taxes laid by Congress. President Adams here also sent a sufficient force of militia to suppress it.[Footnote: _Ibid_., 48, 459.] In 1839, a general combination was formed among the tenant farmers in New York holding long or perpetual leases from manorial proprietors to resist the payment of the stipulated rents. In several counties the greater part of the land was occupied under such a tenure. The design was to compel the landlords to sell to the existing tenants at a price fixed by public appraisal, or else that the State should take the lands by eminent domain and dispose of them to the same persons on reasonable terms. Sheriffs were forcibly prevented from serving writs in dispossession proceedings. One who took with him a _posse comitatus_ of five hundred armed men, a hundred of whom were mounted, was met and turned back by a larger band, who were all mounted. The Governor was finally compelled to issue a proclamation against the "up-renters," as they were called, and to protect the sheriff by a large body of militia. Put down in one county, the movement soon reappeared in others. Disguises were assumed, the rioters figuring under Indian names and wearing more or less of the Indian garb. Three hundred of them, with twice that number not in disguise, prevented a sheriff from levying an execution for rent on tenants upon the Livingston manor. For six years the contest went on in several counties. Several lives were lost on both sides. Sheriff's officers were tarred and feathered and their writs destroyed. Of the rioters many were arrested and prosecuted from time to time and some convicted. Five were sent to the State's prison for life. Two were sentenced to be hanged. The State used its militia freely to defend the sheriffs, at a cost in one county of over $60,000, and in 1845 a series of prosecutions and convictions, resulting in over eighty sentences at one term of court, broke the back of the insurrection. It died half-victorious, however, for an "anti-rent" Governor and Lieutenant-Governor were elected the next year, and several statutory changes in the law of leases which the malcontents had desired were soon afterwards enacted.[Footnote: See Paper by David Murray on the "Anti-rent Episode in New York," Report of the American Historical Association for 1896, I, 139.] During the period of reconstruction in the Southern States, following the civil war, the courts were repeatedly broken up by violence and the service of legal process resisted, in some instances by authority of the military Governor.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 469, 472, 495, 496, 509, 544, 565.] The writ to enforce the judgment of a court of law is called an execution. It is directed to the sheriff or other proper executive officer, and requires him to seize and sell the defendant's property or, as the case may be, to arrest and imprison him, to turn him out of possession of certain lands, or to take some other active step against one who has been adjudged in the wrong, in order to right the wrong, as the judgment may command. A judgment for equitable relief is not ordinarily the subject of an execution.[Footnote: See Chap. VIII.] A judgment at law is generally to the effect that one of the parties shall recover certain money or goods or land from the other. On the prevailing party lies the burden of moving to get possession of what has thus been adjudged to be due. This he does by taking out an execution. A judgment in equity is an order on the defendant to do or not to do some particular act. It is now an affair between him and the court. He must obey this mandate or he will be treating the court with disrespect. To treat a court with disrespect, or, in legal parlance, to be in contempt of court, is to incur very serious responsibilities. It is in the nature of a criminal wrong, for it is a direct opposition to the expressed will of the State. Whoever is guilty of it makes himself liable to arrest and to be subjected to fine or imprisonment. If, for instance, an injunction is obtained in a suit for the infringement of a patent right, it becomes at once the duty of the defendant to desist from making or selling what the plaintiff has proved that he only can lawfully make and sell. If he does not desist, the plaintiff can complain to the court, and if after a preliminary hearing it appears that his complaint is well founded, can obtain a warrant of arrest, styled a "process of attachment." On this, the proper officer takes the defendant into custody, and brings him before the court to answer for violating the injunction order. If the case is an aggravated one, he will be both fined and imprisoned, and the imprisonment will be in the common jail for such time as the court may order. It is the sting in the tail of an injunction that makes it especially formidable. The debtor who fails to pay to the sheriff, when demand is made upon an execution, a judgment for money damages commits no contempt of court. The man who keeps on doing what a court of equity has forbidden him to do does commit one. A conspicuous instance of the efficacy of an injunction was furnished by the great Chicago railroad strike and boycott of 1894, initiated by the American Railway Union. Mob violence followed. More than a thousand freight cars were burned. Trains were derailed, passengers fired at, and lives lost. The officers of the union, after two or three weeks, wrote to the managers of the railroads principally affected, describing the strike as threatening "not only every public interest, but the peace, security and prosperity of our common country."[Footnote: United States _v._ Debs, 64 Federal Reporter, 724, 729.] A temporary injunction was issued against these officers and others by the Circuit Court of the United States in an equitable action brought by the United States under the direction of the Attorney-General. They disobeyed the injunction. Their arrest for this contempt of court promptly followed. This stopped the flood at its source. To quote from testimony given a few weeks later by Mr. Debs, the President of the Union, "As soon as the employees found that we were arrested and taken from the scene of action, they became demoralized and that ended the strike.... The men went back to work and the ranks were broken and the strike was broken up,... not by the army, and not by any other power, but simply and solely by the action of the United States court in restraining us from discharging our duties as officers and representatives of our employees."[Footnote: United States _v._ Debs, 64 Federal Reporter, 724, 759.] The defendants in the contempt proceedings having been found guilty and sentenced to jail for terms varying from three to six months, appealed to the Supreme Court of the United States, but without avail.[Footnote: _In re_ Debs, 158 U. S. Reports, 564, 600.] Injunctions not infrequently are granted as an equitable relief against a legal judgment. _Summum jus, summa injuria_ is an ancient maxim of the courts. The foundation of equitable jurisdiction is that courts of law cannot always do justice. One may, for instance, be invited to build a house on another's land, and promised a deed of the site. He builds the house and then is refused a deed. The invitation and promise were by word of mouth. The rules of law make such a house the legal property of the landowner. The rules of equity make it the equitable property of the man who built it on the faith of the landowner's invitation and promise. If the latter sue at law for the possession of the house, he may get judgment, but equity will prevent his enforcing the judgment, not because it is not a legal judgment, but because he is endeavoring to make an inequitable use of a legal right. A court of equity sometimes makes a decree establishing a title. To enforce such a judgment, a writ may be issued, called a writ of assistance. It is directed to the sheriff and requires him to do some specific act, such as putting the defendant out of possession of certain lands and turning it over to the plaintiff. It is, as appears from instances which have been given, possible that the execution of process from the courts may be defeated by violence which they cannot overcome. It is possible in fact though impossible in theory. As the sheriff can employ the _posse comitatus_, he ought always to have an overwhelming force at his command. But it is easier to "call spirits from the vasty deep" than to make them respond. Public feeling may be so strong in opposition to the service of the process that mob violence will be tolerated and even openly supported. An armed mob can only be effectually met by an armed force which is not a mob--that is, by disciplined soldiers. The sheriff, if so opposed, may call upon the Governor of the State for military assistance. How efficient it will prove will, of course, depend on the discipline of the militia and the firmness of its commanding officers. It is seldom that it fails to restore order, if the men carry loaded guns and are directed to fire at the first outbreak of forcible resistance. But the Governor may refuse to comply with the sheriff's request. In such case, the execution of the process of the court fails because of want, not of power, but of the will to exercise it on the part of those on whom that duty rests. In every government constituted by a distribution of the supreme authority between different departments, each of them must do its part loyally with respect to the others, or the whole scheme, for the time being, breaks down. In the United States this danger is doubly great because of the interdependence of the general government and the particular States. Judicial process may issue from a State court against those who oppose its execution under claim of authority from the United States; or from a federal Court against those who oppose its execution under claim of authority from a State. Some instances of such conflicts of jurisdiction have been already mentioned.[Footnote: Chap. X.] When the Supreme Court of the United States reverses a judgment of a State court, it can either[Footnote: U. S. Revised Statutes, Sec. 709.] itself render the judgment which the State court ought to have rendered, and issue execution, or remand the cause to it with directions that this be done. If the latter course be taken, the directions may be disobeyed. A Georgia court was guilty of this contumacy in the case of Worcester _v._ Georgia.[Footnote: 6 Peters' Reports, 515, 596.] If the former course be taken, the service of the execution may be resisted by the power of the State. Worcester was illegally confined in the Georgia penitentiary. The sentence against him had been set aside and the indictment adjudged to furnish no ground of prosecution. But if the Supreme Court had rendered a judgment dismissing the prosecution, and given a writ to the marshal directing him to set Worcester at liberty, the officer would have found the prison doors shut in his face. Every prison is a fortress, so built as to prevent rescue from without as well as escape from within. To lay siege to one would be too great an enterprise for the marshal to undertake without military assistance. For this the President could have been called upon. But he might have refused it. If so, the judgment of the judicial department would have proved inoperative, simply because the officer charged with the duty of rendering it operative had declined to fulfil that duty. The Supreme Court, in the Worcester case, probably had reason to believe that if it had directed a call on President Jackson for a military force it would have been refused. It is reported that the President, in private conversation, intimated as much. Possibly he might have been justified in the refusal. South Carolina was on the brink of war with the United States. Georgia was her next neighbor, and might have been induced to make common cause with her, if Jackson had battered down the doors of her penitentiary to release a man who, her courts insisted, had been properly convicted of a serious crime. A court can do nothing short of justice. The executive power, perhaps, may sometimes rightly act or decline to act from motives of national policy. In one instance the armed forces of a State were actually engaged, under the authority of the legislature, in forcibly resisting the service of process from the federal courts. It was in 1809, when the marshal in Pennsylvania was opposed by a large body of the militia called out by order of the Governor for the purpose. Their commanding officer was subsequently arrested and convicted for the offense in the Circuit Court of the United States.[Footnote: Wharton's State Trials, 48; McMaster, "History of the People of the U. S.," V, 405; Willoughby, "The American Constitutional System," 41, 43.] In 1859, the Governor of Ohio refused to honor a requisition from the Governor of Kentucky for the surrender of a fugitive from justice. The act charged was assisting a slave to escape. This was a crime in the State from which the man had fled, but not in the State where he had found refuge. The Supreme Court of the United States was asked by Kentucky to compel the surrender. It held that the Governor had violated his duty, but that the Constitution of the United States furnished no means for enforcing its performance by him.[Footnote: Kentucky _v._ Dennison, 24 Howard's Reports, 66, 109.] Under the shelter of this doctrine, a man indicted for murder in Kentucky has been for several recent years residing in safety in Indiana, because the Governor of that State has refused to comply with repeated requisitions for his surrender. * * * * * Every court of record while in session has inherent power to compel all who appear before it to preserve order, to obey its lawful commands issued in due course of judicial procedure, and to refrain from any expressions of disrespect to its authority, under pain of fine or imprisonment, or both. This power, unless withdrawn by statute, belongs to any justice of the peace who has authority to hold a court of record, while he is holding one. Commonly it is, in his case, regulated by statute.[Footnote: Church _v._ Pearne, 75 Conn. Reports, 350; 53 Atlantic Reporter, 955.] At common law, superior courts of record also have power during the progress of a cause to repress or punish any disrespectful acts or words done or uttered, not in its presence, but so near to it as to constitute a breach of order or tend directly to lessen its efficiency. These are deemed powers inherent in such a court, because necessary to support its proper dignity and independence. Statutes are common to define or restrict them, but they cannot take them away altogether. To do so would be to take away an essential incident of the judicial power. Nor can they so far reduce the penalty that may be inflicted as to deprive the court of a reasonable measure of the right of self-protection.[Footnote: Batchelder _v._ Moore, 42 California Reports, 412.] It is, to say the least, doubtful if they can even restrict its exercise by any court created by the Constitution itself.[Footnote: State _v._ Morrill, 16 Arkansas Reports, 384; State _v._ Shepherd, 177 Missouri Reports, 205; 76 Southwestern Reporter, 79; _Ex parte_ Robinson, 19 Wallace's Reports, 505, 510.] The accused is not entitled as of right to a trial by jury. The judge is the best guardian of the dignity of the court.[Footnote: _In re_ Debs, 158 U. S. Reports, 564, 595.] The rule of criminal law that to convict a man of crime requires proof of guilt beyond a reasonable doubt applies to all proceedings of contempt. The accused is also allowed to go free on giving bail until final sentence, if that is to be preceded by any preliminary inquiry involving adjournments from day to day. No such inquiry is necessary when the contempt is plain and was committed in the presence of the court. In the courts of the United States and in most of the States no appeal is allowed for errors in law from a summary sentence of punishment for a contempt of court. Appeals lie only from final judgments in a cause, and such a sentence for contempt is not so regarded.[Footnote: _ex parte_ Bradley, 7 Wallace's Reports, 364, 376.] If the contempt be (as it may be) made the subject of a formal criminal prosecution and a jury trial, an appeal is allowed. A punishment inflicted for contempt, even though it goes beyond the rightful jurisdiction of the court in such a matter, is a judicial act, and does not expose the judge passing the sentence to an action for damages.[Footnote: Bradley _v._ Fisher, 13 Wallace's Reports, 335.] * * * * * CHAPTER XXI JUDICIAL PROCEEDINGS IN TERRITORY SUBJECT TO MARTIAL LAW Martial law is the exercise of military power. It is martial rule at the will of the commanding military officer. In time of war and at the seat of war martial rule is a necessity, and under such conditions martial law may rightfully be enforced by any sovereign as an incident of the war, whether that is being waged with foreign or domestic enemies. The case is different when, though war exists, an attempt is made to enforce martial law at a place which is not the seat of war, nor so near it as to make military rule necessary for military success. Constitutional provisions may also affect the question. Those affecting the United States contain limitations stricter than those found in some of the State Constitutions. Ordinarily no military officer can rightfully enforce martial law in a place where the regular courts of his sovereign are open and in the proper and unobstructed exercise of their jurisdiction.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.] The first serious contest between the judiciary and the military power in this country as to the questions thus involved took place during the war of 1812. General Jackson, in 1814, was at New Orleans in command of the military Department of the South. The city was threatened with invasion. He declared martial law, and not long afterwards arrested a Mr. Louaillier, a member of the State legislature, for writing a newspaper article in which he objected to the continuance of this kind of military government. Louaillier obtained a writ of _habeas corpus_ from the District Judge of the United States (Judge Hall), directed to Jackson. The General, instead of obeying it, forthwith took possession of the original writ, arrested the Judge, and deported him from the city. Two days later despatches were received from the War Department officially announcing the conclusion of a treaty of peace. Judge Hall now returned, and a rule to show cause why Jackson should not be attached for contempt of court was issued. Jackson appeared and filed a long answer, first stating various objections to the jurisdiction, and then setting up the circumstances calling for his proclamation of martial law. He had been told, he said, that the legislature was "politically rotten." The Governor had warned him that the State was "filled with spies and traitors," and advised, in the presence of Judge Hall, and with no dissent from him, that martial law be proclaimed. It seemed a time when "constitutional forms must be suspended for the permanent preservation of constitutional rights." The lengthy paper, which was evidently written by a skilful lawyer, closed thus: "The powers which the exigency of the times forced him to assume have been exercised exclusively for the public good; and, by the blessing of God, they have been attended with unparalleled success. They have saved the country; and whatever may be the opinion of that country, or the decrees of its courts in relation to the means he has used, he can never regret that he employed them."[Footnote: Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court, not particularly impressed with these arguments, ordered the proceedings to go forward and required the General to answer certain interrogatories respecting his course of conduct, by a day appointed. He appeared on that day and declined to answer them, with this concluding shot: "Your honour will not understand me as intending any disrespect to the court; but as no opportunity has been afforded me of explaining the reasons and motives by which I was influenced, so it is expected that censure will constitute no part of that sentence, which you imagine it your duty to pronounce."[Footnote: _Ibid_., 387.] The sentence was a fine of $1,000, which was at once paid. The sympathy of the country was with "the hero of New Orleans" in this affair, whose gallant defense of that city had cast a gleam of glory upon the close of a long and apparently fruitless war. Some of her people subscribed the money to reimburse to him the amount of the penalty, but he declined to accept it. Nearly thirty years afterwards Congress made an appropriation for the purpose, and he received the full amount with interest (in all $2,700) from the treasury, as a legislative compensation for a judicial wrong. It would seem, however, that Judge Hall acted within the limits of his authority. When he signed the writ of _habeas corpus_ the State was at peace, and it was generally known, though not officially proclaimed, that a formal treaty of peace had been signed between the United States and Great Britain. The courts were open; his court was open; and the General should have respected the process which issued from it.[Footnote: Johnson _v._ Duncan, 3 Martin's La. Reports, O. S., 530. See opinion of Mr. Justice Miller in Dow _v._ Johnson, 100 U. S. Reports, 158, 193; _Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.] During the Civil War, President Lincoln was responsible for many arrests by military officers of citizens of States remote from the seat of actual hostilities, and in which the courts were open. At its first outbreak he entirely suspended the privilege of the writ of _habeas corpus_, and one issued by the Chief Justice of the United States was disobeyed.[Footnote: _Ex parte_ Merryman, Taney's Decisions, 246.] Congress in 1863 enacted that any order of the President, or under his authority, in the course of the war, should be a defense to any action in any court for what was done by virtue of it. The State courts disregarded the statute. If, they said, either the common law or martial law justified the order, it justified the act; if neither did, the fiat of Congress cannot make the act a lawful one.[Footnote: Griffin _v._ Wilcox, 21 Indiana Reports, 370.] The Supreme Court of the United States had this question before them, but did not find it necessary to decide it.[Footnote: Bean _v._ Beckwith, 18 Wallace's Reports, 510; Beckwith _v._ Bean, 98 U. S. Reports, 266. (See the dissenting opinion of two justices in the last report, p. 292.)] Had they done so, it would probably have been answered in the same way. Missouri inserted in her Constitution of 1865 a provision similar to the Act of Congress. This, of course, so far as that State could do it, abrogated any rule of law to the contrary, and it was held not to contravene any provision of the Federal Constitution.[Footnote: Drehman _v._ Stifle, 8 Wallace's Reports, 595.] The transaction in controversy, however, was before the adoption of the fourteenth amendment, and had the prohibition in that been then in existence, a different result would probably have been reached. The Governor of North Carolina (William W. Holden) in 1870 declared two counties in a state of insurrection. The militia were called out and a number of citizens arrested. Writs of _habeas corpus_ in their favor were issued by Chief Justice Pearson of the Supreme Court of the State against the military officers.[Footnote: _Ex parte_ Moore, 64 North Carolina Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at first refused, by the Governor's authority, to obey them. Similar writs were then obtained from the District Judge of the United States, upon which the petitioners were, by the Governor's orders, produced before the State judge. The result was the impeachment of Governor Holden and his removal from office.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 458.] While martial law is the will of the commanding officer, it may be his will to have it applied, so far as ordinary matters of litigation are concerned, by courts. For that purpose, when in occupation of enemy's territory, he may allow the courts previously existing under the government of the enemy to continue in the exercise of their functions as his temporary representatives; or he can institute new tribunals of local jurisdiction having the name and form of civil courts, and proceeding according to the ordinary rules of administrative justice. All such courts act really as his agents and subject to his control, but in practice he seldom interferes with their judgments. He cannot, however, in establishing such a temporary tribunal, give it the powers of an admiralty court over prize cases. The judgment _in rem_ of an admiralty court, condemning a captured ship as a lawful prize of war, is treated as conclusive all over the world; but this is because it is a decree of a competent court, properly established to administer a branch of maritime law which, in its main principles, is part of the law of nations and common to the world. No mere military court on enemy's territory occupies that position.[Footnote: Jecker _v._ Montgomery, 13 Howard's Reports, 498, 515.] This right of the military commander exists equally on foreign territory in military occupation and on domestic territory, when the ordinary courts of his country are not open. During our Civil War, in 1864, President Lincoln, as commander in chief of the army and navy, set up a "Provisional Court for the State of Louisiana," after the Southern portion of that State had been occupied by the national forces and martial law declared. Judge Charles A. Peabody of New York, who had been a justice of the Supreme Court of that State, was commissioned to hold it and to dispose of both civil and criminal causes. Its docket became at once a full one, and important litigation was transacted there with general acceptance until the close of the war.[Footnote: The Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical Association for 1892, 199.] In the original proclamation of martial law in Louisiana the commanding officer announced that civil causes between parties would be referred to the ordinary tribunals. One of the State courts, known as a District Court of the City and Parish of New Orleans, the judge of which took the oath of allegiance to the United States, continued to sit and dispose of business in the usual course. A few months later a citizen of New York sued a military officer before it for ravaging a plantation which he owned in Louisiana, and recovered judgment. A suit upon it was afterwards brought in Maine, where the defendant resided. He pleaded that the property of the plaintiff had been taken to furnish his troops with necessary supplies. The case ultimately came before the Supreme Court of the United States. Here it was thrown out, the court saying that the District Court of New Orleans had no jurisdiction to call military officers to account for acts done under claim of military right.[Footnote: Dow _v._ Johnson, 100 U. S. Reports, 158.] So far, however, as litigation between private parties unconnected with military operations is concerned, a court of this character, established by law, and suffered by the military authorities to continue its sessions, has competent jurisdiction, and its judgments will be enforced in other States.[Footnote: Pepin _v._ Lachenmeyer, 45 New York Reports, 27.] They have no power to entertain criminal charges against those in the military service, who would be punishable by court martial.[Footnote: Coleman _v._ Tennessee, 97 U. S. Reports, 509, 519.] In 1864, during the war, but in Indiana, a State distant from the seat of hostilities, the military commandant of the district ordered the arrest of a private citizen and his trial before a military commission on charges of conspiracy against the United States, as a member of a secret organization known as the Order of American Knights or Sons of Liberty. The trial resulted in his conviction, and a sentence to death, which was approved by the President of the United States. Before it could be executed, he applied to the Circuit Court of the United States for the District of Indiana for a writ of _habeas corpus_. The judges of that court were divided in opinion in regard to the case, but it was decided in his favor when it came before the Supreme Court of the United States.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision was unanimous, but in stating the reasons for it the court was divided in a manner which has not been uncommon since the death of Chief Justice Marshall when any great question of a political nature has been involved. Five justices held that the trial of a civilian by a military commission can never be vindicated in a peaceful State where the courts are open and their process unobstructed. Four justices dissented, and Chief Justice Chase thus summarized their conclusions: There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress, while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war within districts or localities where ordinary law no longer adequately secures public safety and private rights. We think that the power of Congress in such times and in such localities to authorize trials for crimes against the security and safety of the national forces may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 141.] The Constitution of the United States contains some provisions restricting the jurisdiction of military authorities and tribunals over controversies, which are not found in the Constitutions of the States. It may well be that martial law has for the United States a narrower meaning than it may possess in a particular State. The legislature of Rhode Island in 1842, during "Dorr's Rebellion," by a Public Act put that State under martial law until further order, or until its termination should be proclaimed by the Governor. A squad of militia broke into the house of a private citizen to arrest him as an abettor of Dorr, and were afterwards sued in trespass before the civil courts. The cause finally came before the Supreme Court of the United States, where (one justice only dissenting) it was held that the Act could not be pronounced an unjustifiable exercise of legislative power under any provision of the federal Constitution.[Footnote: Luther _v._ Borden, 7 Howard's Reports, 1, 45.] Whether the courts of Rhode Island could have taken a different view, under the fundamental laws of the State, was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 129.] On the other hand, there are States in which the Constitution explicitly provides that "the military power shall always be held in an exact subordination to the civil authority and be governed by it."[Footnote: Constitution of Massachusetts, Declaration of Rights, Art. 17. _Cf._ Constitution of Colorado, Art. 2, Sec, 22.] It is a serious question whether, under such provisions, a legislative or executive declaration of martial law in time of peace, in order the better to cope with some local disturbance, is to be regarded as an expression of the will of the civil authority, by virtue of which the civil courts lose the power of discharging on _habeas corpus_ one restrained of his liberty by military command. That it is such an expression was held in Colorado in 1904, but by a court composed of only three judges, of whom one, in a dissenting opinion, observed that the decision of his associates "is so repugnant to my notions of civil liberty, so antagonistic to my ideas of a republican form of government, and so shocking to my sense of propriety and justice that I cannot properly characterize it." A similar question arose, but was not judicially determined, in Arkansas in 1874. There was a contest over the election of Governor. The Constitution provided that such contests should be decided by the joint vote of both houses of the legislature. Baxter, the candidate who was elected on the face of the returns, was declared elected by the President of the Senate and took the oath of office. Brooks, the other candidate, presented a petition for a contest to the lower house, which refused to grant it. He then applied to the Supreme Court on _quo warranto_ proceedings, which threw out the case for want of jurisdiction.[Footnote: State _v._ Baxter, 28 Arkansas Reports, 129.] A similar suit was then brought in a _nisi prius_ court, on which judgment was rendered in his favor,[Footnote: This judgment was reversed on appeal. Baxter _v._ Brooks, 29 _id_., 173.] and he was put in possession of the executive chambers by an armed force which he assembled. Baxter then declared martial law in the county in which the capital was situated, and arrested two of the judges of the Supreme Court on their way to attend a special session called to take action in _mandamus_ proceedings brought in behalf of Brooks. They were rescued after a day or two by United States troops and proceeded to join their associates. The court then gave judgment for Brooks in his third suit, directing the State Treasurer to pay his warrants. At this point the legislature applied to the President of the United States for protection against domestic violence, under Art. IV of the Constitution of the United States, and his compliance by a proclamation officially recognizing Governor Baxter and ordering the Federal troops to support him closed the history of this disgraceful incident.[Footnote: McPherson, "Hand-book of Politics for 1874," 87-100.] * * * * * CHAPTER XXII APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES The oldest which survives of our American Constitution, that adopted by Massachusetts in 1780, requires the appointment of judges to be made by the Governor of the State, with the advice of the Council, and for good behavior.[Footnote: Constitution of Massachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.] This plan was substantially followed in framing the Constitution of the United States. That was planned for a small number of States, perhaps only nine, certainly at first not over thirteen. The Senate, therefore, would be a body small enough to serve as an executive council. Its necessary enlargement by the admission of new States has long made it but ill-suited for this purpose, and has thrown the power of confirming or rejecting an executive nomination for judicial office largely under the control of the Senators from the State to which the person named belongs, although this control is much weakened if they do not belong to the party of the administration. The principle that the greater the concentration of the appointing power, the greater will be the sense of individual responsibility for every appointment made, makes this result of a Senate of ninety members not wholly unfortunate. The President now consults a council of two. Thirteen States in all originally gave to the Governor the power either of appointing or of nominating the judges of the higher courts; fourteen gave their election to the legislature; the rest preferred an election by the people.[Footnote: 'Baldwin, "Modern Political Institutions," 58, 59.] If we compare the original practice in each State with its present practice, we find that there are now fewer in which the Governor appoints or nominates; fewer in which the legislature elects; more in which the people do. Legislative elections have been found to imply a system of caucus nominations, and have often led to a parcelling out of places among the different counties in which geographical considerations told for more than did fitness for office. In one State[Footnote: Conn. Constitution, Twenty-sixth Amendment.] since 1880, the legislature has elected on the Governor's nomination. In practice they have never failed to act favorably upon it. Mississippi, which, in 1832, became a leader in the movement toward the choice of the judges by popular election, in her latest Constitution (of 1890) follows the plan of the United States, the Governor nominating and the Senate confirming. The action of the confirming or electing body when unfavorable in any State has generally been unfortunate. It is apt to be affected by local or personal political influence to which the chief executive would be insensible. A large number of able men have thus, from time to time, been deprived of a seat on the Supreme Court of the United States who would have added to its luster. In 1867 Massachusetts lost a Chief Justice of the first rank in this way by the defeat of Benjamin F. Thomas. The council refused, by a majority of one, to confirm his nomination because, though of the same party with them, he was of a different wing.[Footnote: Proceedings Mass. Historical Society, 2d Series, XIV, 301.] In most of the States the judges are now elected by the people.[Footnote: In thirty-three. In one other (Florida) the people elect the judges of the Supreme Court, and the Governor, with the advice and consent of the Senate, appoints those of the superior courts. The Governor nominates in Delaware, Mississippi and New Jersey, and in the four largest New England States. In Rhode Island and Vermont, South Carolina and Virginia, the legislature elects.] This makes the choice more a political affair. The nominations are made by party conventions, and generally in connection with others of a purely political character. It also, in case of a nomination for re-election, places a judge on the bench in the disagreeable position of being a candidate for popular favor at the polls and an object of public criticism by the political press. In 1902 a justice of the Supreme Court of Michigan was nominated for re-election. There was an opposing candidate, some of whose friends published a statement that in the nine years during which the justice had already served he had written opinions in 68 railroad and street railway cases of which 51 were in favor of the companies. He was re-elected, but some time afterwards this fact was reprinted in a local periodical accompanied by the remark that "we must conclude that either the railroad and railway companies--4 to 1--had exceptionally good cases from the standpoint of law and justice or his Honor's mind was somewhat warped in their favor.... You can't expurge mental prejudice from judicial opinions any more than you can from the reasonings of theologians and atheists.... To imagine a justice deciding a case against his personal interests is too great a stretch of imagination for us to appreciate." A less brutal but more dangerous attack, made in 1903 by a religious newspaper, illustrates the same evil. The Supreme Court of Nebraska has decided that under their Constitution the Bible cannot be used in the public schools. It was, of course, a pure question of the construction of a law, for the policy of which the court had no responsibility. The newspaper in question[Footnote: The Boston _Congregationalist_ of Oct. 3, 1903.] which, though published in the East, had some circulation in that State, printed this paragraph: "The Supreme Court judge of Nebraska who wrote the decision that the State constitution prohibits the use of the Bible in the public schools is standing for re-election, and the fact that he made such a decision is not forgotten by the Christian voters." In States the control of which by one of the great political parties is assured, the real contest is for the nomination, and here there is even more license for unfavorable comment on the judicial record of one who seeks it. In a Southern State there was such a struggle in 1903 for the nomination of the prevailing party for Governor. The person who then held that place desired it. So did one of the justices of the Supreme Court. It is said that the friends of the former circulated a cartoon representing the five justices together as five jackasses, and another in which the justice whom they were trying to run off the field was caricatured in the act of setting aside a verdict in favor of a child injured by a railway accident. The two candidates subsequently met upon the platform for a joint discussion of the issues before the people. The Governor sharply criticised the character of the Supreme Court. The judge caught him by the collar and was about to strike him when friends intervened, and an explanation of the remarks was made which was accepted as satisfactory. In the heat of a political campaign men do not always stop to measure words or weigh questions of propriety. The personal character and public acts of an opponent are a legitimate subject of description and comment. Sharp attacks must be expected as a natural incident of such a contest, and by candidates for judicial office as well as others. The public record of all for whom votes are asked at a public election must be the subject of open criticism, or there would be danger that unworthy men would succeed. To treat such observations as have been quoted upon opinions previously written by a candidate for re-election, however unseemly or unjust, as a contempt of court would be indirectly to impair the right of free suffrage. If assertions published as to acts done or words said are false, it does not follow that they are libellous. An honest mistake may be a defense for such a misstatement.[Footnote: Briggs _v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic Reporter, 513.] Judges of trial courts, when candidates for re-election, may expect the publication of similar attacks on rulings which they have made. The following dispatches, which appeared in the same issue of a local newspaper in Pennsylvania in 1903, when a county election was soon to occur, will sufficiently illustrate this: HOT JUDICIAL FIGHT PROMISED FOR MERCER. COUNTY WILL BE SCENE OF AN INTERESTING STRUGGLE FOR SEATS IN THE LEGISLATURE. Sharon, Pa., Dec. 25.--From present indications the coming judicial fight in Mercer County will be a bitter one. Public interest centers in the efforts of Judge S. H. Miller and his friends to secure a re-election, and the attempts of his opponents to place A. W. Williams of Sharon on the bench instead. While the sole topic politically is on the judgeship, the twenty or more candidates for Assembly are not losing the opportunity of fixing their fences. They, too, have assumed a reticence in regard to the matter of the judgeship. It is expected that on the last lap of the race Williams and Miller will be the only two men remaining. There are three other candidates for the Republican nomination who have thus far announced themselves. They are: W. J. Whieldon of Mercer; W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville. Judge Miller and A. W. Williams are the closest of friends. JUDGE MILLER ASKS FOR MODERATION. BARS PURE FOOD PROSECUTIONS BY REFUSING TO SENTENCE THOSE CONVICTED. Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner Warren has been confronted with a new proposition in his crusade in Western Pennsylvania against violators of the pure food laws. Judge S. H. Miller of Mercer County, before whom several oleomargarine dealers were recently convicted for the illegal sale of "oleo," has refused to sentence them on the ground that the procedure of the State Pure Food Bureau is persecution and lacking in equity. He takes the position that grocers and saloon keepers, not being expert chemists, should at least be warned previous to arrest, and be given a chance to determine whether the foods they are handling are pure or adulterated. Judge Miller's position is a serious impediment in the way of the enforcement of the law, and Commissioner Warren is preparing to take action that may compel him to punish offenders convicted before him. Not infrequently in the judicial history of the United States there has been presented to a judge the choice between rendering a decision according to his opinion of the law and the facts and losing his seat, and rendering one according to public opinion, or the public opinion of his party friends, and keeping it. A judge of the High Court of Errors and Appeals in Mississippi was one of the earlier martyrs in the cause of judicial independence. The State had incurred a heavy bonded debt, which she found it inconvenient to pay. The Governor, who had approved the bills under which over $15,000,000 of the bonds had been issued, concluded in 1841, after the issue, that it was forbidden by the Constitution of the State, and issued a proclamation declaring them void. In a suit in chancery this question came up for decision in 1852. Meanwhile the policy of "Repudiation" had been made a political issue and the people had given it their approval by electing its advocates year after year to the highest offices. The chancellor upheld the validity of the bonds, and on appeal his decision was unanimously affirmed.[Footnote: State _v._ Johnson, 25 Mississippi Reports, 625; Memoir of Sergeant S. Prentiss, II, 268.] A few months later the term of office of one of the judges who had concurred in this opinion expired, and the people put a successor in his place who held doctrines better suited to the public sentiment of the hour. In the days preceding the Civil War, the validity of the laws enacted by Congress to secure the recapture of slaves who had fled to the free States was frequently attacked in the press and on the platform. The Constitution expressly provided for such proceedings, and the Supreme Court of the United States in 1842 had pronounced the "Fugitive Slave law" of 1793 to be valid in all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters' Reports, 539.] The principle of this decision plainly covered the later Act of 1850, but as public sentiment in the North became more and more uncompromising in its hostility to the existence of slavery under the flag of the United States, the State courts were not always strong enough to withstand the pressure to disregard precedents and let the Constitution give place to what the phrase of the time called a "higher law." In 1859, a citizen of Ohio was convicted in the District Court of the United States and sentenced to jail for rescuing a fugitive slave who had been recaptured in Ohio by an agent of his master, to whom he had been committed in proceedings under the Act of Congress. He was imprisoned in an Ohio jail, the United States then having none of their own, but placing all their convicts in State jails or prisons under a contract with the State to keep them for a certain price. His counsel applied to the judges of the Supreme Court at chambers for a writ of _habeas corpus_ against the Ohio jailer. He produced his prisoner and submitted a copy of the warrant of commitment from the District Court. The public were extremely interested in the outcome of the proceedings. The Attorney-General of the State assisted in presenting the petitioner's case. The Governor was one of the multitude present in the crowded court room. The Attorney-General declared that the position that the Supreme Court of the United States had the power to decide conclusively as to the constitutionality of the laws of the United States and so tie the hands of the State authority was untenable and monstrous. "Georgia," he said, "hung Graves and Tassel over the writ of error of this same Supreme Court. God bless Georgia for that valiant and beneficent example."[Footnote: _Ex parte_ Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a sectional court composed of sectional men, judging sectional questions upon sectional influences."[Footnote: _Ibid._, 161.] Of the five judges, three held that the constitutionality of the Fugitive Slave law was settled conclusively by repeated decisions of the Supreme Court of the United States, and that the State courts could not release the prisoner. Chief Justice Swan gave the leading opinion. Its positions were thoroughly distasteful to the people of Ohio. He knew they would be. His term, which was one of five years, expired in the following February, and the vacancy was to be filled at the State election in October. On the day before the judgment was announced he told his wife that this would be fatal to his re-election. "If the law makes it your duty to give such an opinion," said she, "do it, whatever happens." He gave it, and what they anticipated occurred. The convention of his party declined to renominate him. He resigned his office immediately after the election and retired to private life at an age and under circumstances which made it impracticable for him to re-enter the bar with success, but with the consolation of knowing that he had acted right. Chief Justice Day of Iowa, one of the ablest men who ever sat on her Supreme bench, in the same way lost a re-election by writing an opinion of the court, which announced a doctrine that was legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa Reports, 543, 603.] His term was soon to expire. He, too, knew that this decision would prevent his renomination, and it did. In 1885, Chief Justice Cooley of Michigan, one of the great jurists and judges of the country, failed to secure a re-election to its Supreme Court, which he had adorned for twenty-one years, largely on account of an opinion which he had written supporting a large verdict against a Detroit newspaper for libel. The newspaper, upon his renomination, described him as a railroad judge, and kept up a running fire through the campaign, which contributed materially to his defeat. Political contests cost money, and if judges appear as candidates for popular suffrage they are naturally expected to contribute to the expense. The other candidates on the same ticket do this, and if those nominated for the bench did not, somebody would have to do it for them, thus bringing them under obligations that might have an unfortunate appearance, if not an unfortunate effect. In New York, where some of the judicial salaries are higher than anywhere else in the country, and the terms for the highest places are long (fourteen years), it has been customary for those placed in nomination to contribute a large sum to the campaign expenses of their party. This is tacitly understood to be a condition of their accepting the nomination, and the amount to be paid is fixed by party practice. For an original nomination by the party in power, it is said to be about equal to a year's salary; for a renomination half that sum may suffice. But a judge holding office by popular election must in any case owe something to somebody for supporting his candidacy. He is therefore under a natural inclination to use his power, so far as he properly can, in such a way as to show that he has not forgotten what his friends have done for him. There is always a certain amount of judicial patronage to be bestowed. There are clerks and messengers, trustees and receivers, referees and committees, perhaps public prosecuting attorneys and their assistants, to appoint. Other things being equal, no one would blame a judge for naming a political friend for such a position. But as to whether other things are equal he is to decide. To the most upright and fearless man the danger of this is great; to a weak or bad man the feeling of personal obligation will be controlling. Justice Barnard of the Supreme Court of New York once observed on the bench that judges had considerable patronage to be disposed of at their discretion, and that for his part he had always succeeded in life by helping his friends and not his enemies. For this practice, among other things, he was impeached and removed from office; but how many judges are there who yield to this temptation without avowing it? A French critic of the elective judiciary has thus referred to these remarks of Justice Barnard: Le Juge Barnard, qui formulait en plein tribunal cette déclaration de principes, fut décrété d'accusation et condamné, non sans justes motifs. Mais son crime impardonable était de proclamer trop franchement les doctrines de la magistrature élective: il trahissait le secret professionnel.[Footnote: Duc De Noailles, _Cent Ans de République aux Etats-Unis_, II, 232.] Most of the old thirteen States in their first Constitutions provided that the judges of their highest courts should hold office during good behavior, or until seventy years of age. New York at first put the age of superannuation at sixty, but after losing by this the services of Chancellor Kent for some of his best and most fruitful years, postponed it to seventy. Georgia was the first to set the fashion of short terms. Her Constitution of 1798 provided that the judges of her highest court should be "elected" for three years, but that those of her inferior courts should be "appointed" by the legislature and hold during good behavior. The legislature construed this as allowing it to frame such a scheme of election as it thought best, and that adopted was for the House to nominate three, from whom the Senate elected one.[Footnote: Schouler, "Constitutional Studies," 65.] In all but three States (Massachusetts, New Hampshire and Rhode Island) at the present time all judges hold for a term of years, and as a general rule those of the higher courts have longer terms than those of the inferior ones. The change from life tenure to that for a term of years was partly due to several instances which occurred early in the nineteenth century, in which it was evident that judges had outlived their usefulness. Judge Pickering of the District Court of New Hampshire lost his reason, and to get rid of him it became necessary to go through the form of impeachment. In 1803, Judge Bradbury of the Supreme Judicial Court of Massachusetts, who had been incapacitated by paralysis, was displaced in the same way, though only a few months before his death. In 1822, an old man who was the chief judge of one of the judicial districts of Maryland was presented by the grand jury as a "serious grievance," on account of his habitual absence from court. His physician certified that his life would be hazarded if he undertook to attend, but the natural answer was that then he should resign. At present, for judges of the State courts of last resort, the term in Pennsylvania is twenty-one years (but with a prohibition of re-election); in Maryland, fifteen; in New York, fourteen; in California, Delaware, Louisiana, Virginia, and West Virginia, twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado, Illinois, and Mississippi, nine. The general average is eight, although that particular number obtains in but seven States. In eighteen it is six. The shortest term is two, and is found in Vermont. It may be noted that the original rule in Vermont was to elect judges annually. As compared with the terms of office prescribed at the middle of the nineteenth century, those at the opening of the twentieth are on the average decidedly longer. * * * * * The compensation of most American judges is a fixed salary. In some States, courts of probate and insolvency, and in all justices of the peace when holding court, are paid by such fees as they may receive, at statutory rates, for business done. As in the case of sheriffs and clerks, judges under such a system sometimes receive a much larger official income than any one would venture to propose to give them were they to be paid for their services from the public treasury. A clerk of court often receives more than the judge, and some judges of probate and insolvency more than the Chief Justice of their State. In colonial times, judges were sometimes paid in part by fees, in part by occasional grants by the legislature, and in part by a regular stipend. This practice of legislative grants from time to time in addition to their salaries was continued in Massachusetts in favor of the justices of the Supreme Judicial Court for a quarter of a century, in the face of a Constitution which provided that they "should have honourable salaries ascertained and established by standing laws."[Footnote: Memoir of Chief Justice Parsons, 228.] It was evidently indefensible in principle, and to remove judges, as far as possible, from temptation either to court the favor or dread the displeasure of the legislature it is now generally provided in our American Constitutions that their salaries shall be neither increased nor decreased during the term for which they may have been elected by any subsequent change of the law. In a few States it is thought sufficient to guard against the consequences of legislative disfavor, and the Constitutions forbid only such a decrease of salary. The Chief Justice of the Supreme Court of the United States receives $13,000 a year and his associates $12,500. Circuit Judges have $7,000, and District Judges $6,000. In the States, the Chief Judge of the New York Court of Appeals receives $10,500 and his associates $10,000. The same salaries are given in Pennsylvania. In New Jersey, the Chancellor and the Chief Justice each receive $10,000 and the associate judges $9,000. In Massachusetts, the Chief Justice receives $8,500 and his associates $8,000. In the other States less is paid, the average for associate judges in the highest courts being about $4,350. Only nine States pay over $5,000. The Chief Justice in many receives $500 more. These salaries are, however, generally supplemented by a liberal allowance for expenses, and in some States each judge is provided with a clerk. In New York, this addition amounts to $3,700; in Connecticut, to $1,500; in Vermont, to $300. The salaries for the highest trial court generally closely approximate those paid to the judges of the Supreme Court, and in case of trial courts held in large cities are often greater. Those for the inferior courts are much lower. The judges of the principal _nisi prius_ court (which is misnamed the Supreme Court) in New York City are allowed by law to accept additional compensation from the county, and receive from that source more than from the State, their total official income being $17,500. The trial judges in Chicago also receive $10,000, although the highest appellate judges in the State have a salary of only $7,000. It is not surprising that American judicial salaries are no greater, but rather that they are so large. They are fixed by a legislature, the majority of the members of which are men of very moderate income, and when originally fixed in the older States it was often by men not altogether friendly to the judiciary. It was a saying of Aaron Burr, which was not wholly untrue in his day, that "every legislature in their treatment of the judiciary is a damned Jacobin club."[Footnote: "Memoir of Jeremiah Mason," 186.] Only the influence of the bar has carried through the successive increases which have been everywhere made. The first pension to a retired judge ever granted in the United States was one of $300 voted in Kentucky in 1803. It was offered to one of the members of the Court of Appeals to induce him to resign, but the year after his resignation the statute was repealed on the ground that it was unconstitutional.[Footnote: Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United States have allowed their judges who have reached the age of seventy, after not less than ten years' service, to retire, at their option, receiving the full official salary during the remainder of their lives. Rhode Island gives hers the same privilege after twenty-five years' service, and Massachusetts and Maryland have somewhat similar provisions, except that the judges on retirement receive but part of what they formerly did. The Connecticut legislature is in the habit of appointing her judges, both of the Supreme and Superior Court, when retired at the age of seventy, State referees for life, with an allowance of $2,500 for salary and expenses, their duties being to try such questions of fact as the courts may refer to them and to report their conclusions. Our State Constitutions now generally provide that judges shall hold no other public office. Some also provide that all votes for any of them for any other than a judicial office shall be void. * * * * * Occasionally a judge, in order to eke out his official income, accepts a salaried position, calling for but little of his time, in a matter of private business employment. This, however, is rarely done and there are obvious objections to it when the employer is one likely to have business before the court. Many of the judges of the higher courts, including several of the justices of the Supreme Court of the United States, are professors or lecturers in law schools. The best mode of appointing judges is that which secures the best men. Such men are unlikely to accept a place on the bench of one of the higher courts, unless it carries with it some prospect of permanence. It does, if it comes to them by way of promotion after they have served acceptably for a length of time in an inferior court. But most judges must be taken from the bar and, save in very unusual cases, will be in large and active practice. This must be totally abandoned if they take one of the higher judicial positions; and if they take the lowest, must be made secondary to it. A lawyer's practice is more easily lost than gathered. If it is a solid one, it is of slow growth. For one who has turned from the bar to the bench to expect on retirement from office to resume his old practice would be to expect the impossible. He may have achieved a position by his judicial work which will enable him to take a better position at the bar; but in that case his clients will be mainly new ones. He is more likely, particularly if no longer young, to sink into a meagre office practice and feel the pinch of narrow means, always doubly sharp to one who by force of circumstances has a certain social standing to maintain. The leaders at the bar therefore seldom consent to go upon the bench unless they have property enough to ensure their comfortable support after they leave it, without returning to the labors of the bar. This is one of those evils which carry in some sort their own antidote. The lawyers, as a body, are always anxious for their own sake to have an able and independent bench. They do not wish to trust their causes, when they come before a court of last resort for final disposition, to men of inferior capacity and standing. They therefore can generally be relied on to urge on the nominating or appointing power the selection of competent men. Their influence in this respect is little short of controlling. If competent men will not ordinarily go on the bench of an appellate court, unless by way of promotion, until they have accumulated a sufficient fortune to make them comfortable in old age, then as competent men will usually, in one way or another, be selected, and as few of these are men who from their youth have been occupying judicial positions, the judges will usually be possessed of some independent means. A property qualification almost is thus imposed by circumstances on those forming the American judiciary in its highest places. The same thing is true of our higher diplomatic positions. As Goethe has said, there is a dignity in gold. It is a poor kind of dignity when unsupported by merit, but if to gold merit be joined, each lends to the other solidity and power. Among the men of the first eminence at the bar whom the meagerness of the salary has kept off the bench may be mentioned Jeremiah Mason, who declined the position of Chief Justice of New Hampshire on this account, and William Wirt. Wirt in 1802 was made one of the Chancellors of Virginia at the age of twenty-nine. The salary and fees amounted to about five hundred pounds a year. He married on the strength of it, but in a few months found that his income was insufficient to maintain his family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91, 99.] Dignity and power, however, are strong attractions. Theophilus Parsons in 1806 left a practice worth $10,000 a year--the largest in New England in his day--to take the place of Chief Justice of Massachusetts on a salary of $2,500. After three years he sent in his resignation, saying that he found that this sum was insufficient for his support, even with the addition of the income from such property as he possessed. The legislature thereupon raised the salary to $3,500, and he remained on the bench through a long life.[Footnote: "Memoir of Chief Justice Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode Island, who then had a practice of $8,000 a year, gave it up for the Chief Justiceship of the State, though the salary was then but $750, supplemented by some trifling fees. In a few years, however, he resigned the office on account of the inadequacy of the compensation.[Footnote: Payne, "Reminiscences of the Rhode Island Bar," 75.] The qualities of a judge are by no means the qualities of a politician. The faculty of looking at both sides of a question and the power of forming deliberate and well-considered judgments do not tell for much in a campaign speech. The politician's title to support is standing by his friends. The judge's duty may be to decide a cause against his friends. Many a lawyer of eminence might accept a nomination from a President or Governor involving no participation in a political election contest who would refuse one from a party convention. The general sentiment of thinking men in the United States is that judges should never be chosen by popular vote. It is, however, an unpopular sentiment. The people in general do not appreciate the difference between their fitness to select political rulers and to select judicial rulers--to choose out good men and to choose out good lawyers. And the people make and ought to make our Constitutions. Rufus Choate once said that the question at bottom was, Are you afraid to trust the people? If you answer Yes, then they cry out that "he blasphemeth." If you answer No, they naturally reply, Then let them elect their judges. Jefferson was the first to suggest an elective judiciary, basing his opinion on a misconception of the usage in Connecticut. There, he wrote, the judges had been chosen by the people every six months for nearly two centuries, yet with few changes on the bench, "so powerful is the curb of incessant responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of July 12, 1816, regarding a new Constitution for Virginia.] In fact, the Connecticut judges were chosen annually, and those not holding judicial powers as an incident of political ones were appointed by the legislature. The experiment of resorting to popular election was first fully tried in Mississippi in 1832, under the influence of Governor Henry T. Foote, but in later life he expressed his regret at the course which he had taken, and the belief that it had weakened the character of the bench.[Footnote: "Casket of Reminiscenses," 348.] The scheme of popular election may be pursued with reasonable success if the bar use all the influence at their command to secure both good nominations originally and the re-election of all who have served well.[Footnote: It is not uncommon for local bar associations after the party nominations for the bench have been made to refer them to a committee, on the report of which those deemed the best are commended for popular approval. In two judicial districts in Iowa, the lawyers nominate judges for the district in a convention of delegates from the bar, and then see to it that the nominations are ratified by the party conventions. Simon Fleischmann, "The Influence of the Bar in the Selection of Judges," Report of 28th annual meeting of the New York State Bar Association (1905).] A conspicuous instance of its success under such conditions is shown by the repeated re-election of Judge Joseph E. Gary of the criminal court of the city of Chicago. Originally elected in 1863, when it was called the Recorder's Court, he has been re-elected for successive terms of six years without a break, and in 1903, when he was 82 years old and still in active service on the bench, received well-merited addresses of congratulation from the Chicago Law Institute and the Chicago Bar Association. Judges of Probate, whose functions are largely of a business character, and who are brought into close contact with the people at first hand, are frequently re-elected for a long period of years with little regard to their party affiliations.[Footnote: In the Probate District of Hartford in Connecticut there have been but two judges during the last forty years, though the elections have been annual or biennial.] In case of those having long terms of office, a re-election comes more easily and commonly. A man who has been ten or twenty years upon the bench has become set apart from the community. The people have ceased to think of him as one of themselves, so far as the active political and business life of the day is concerned. His position and his work, if it has been good, have given him a certain elevation of station. Men have learned to trust him, and to feel that his presence on the court helps to make liberty and property more secure. If he receives his party nomination, he is apt to secure a majority of votes, whether the others on the ticket are or are not elected. The opposing party often nominates him also, and sometimes, if his own gives the nomination to another, nominates him itself, and with success. In New York it has been generally the case that a good judge of the Court of Appeals or Supreme Court is re-elected until he reaches the age limit set by the Constitution. To accomplish this, however, it has been necessary for the bar to use constant efforts to bring the nominating conventions of both parties to the support of the same man or men, and personal ambition and party feeling have on a number of occasions set up an effectual bar. Before a recent election of two judges in that State, in preparation for which a scheme had been suggested by which one of the outgoing judges of each party should be re-elected, a third candidate for the succession, himself a prominent member of the bar and an officer of the State, published a lengthy statement of his claims, which concluded thus: "I am a candidate for nomination to the office of Associate Judge of the Court of Appeals at the coming Democratic State Convention. I appeal to my fellow-citizens for their support. While I do not believe that support for judicial candidacy should be unduly importuned, I feel that the present circumstances justify me in making this announcement. I have always stood by my party in its dark days, when others voted the Republican ticket in the interest of their business. I have assisted in endeavors to so shape its policies as to make success possible. Now that this has been accomplished, I do not think that my fellow-Democrats will thrust me aside to make way for those who neither affiliate with the party nor vote its ticket." As a general rule, in the country at large political considerations are decisive, both in cases of popular election and of executive nomination, but as to the latter exceptions are more frequent. One instance has occurred in which a President of the United States nominated to the Supreme Court a member of the party in opposition to the administration,[Footnote: Howell E. Jackson, a Democrat, was thus appointed by President Harrison, a Republican, in 1893. President Taft, a Republican, has since appointed two Democrats, justices Lurton and Lamar, and made a third Chief Justice.] and the same President, upon the creation of the Circuit Court of Appeals, when there were a number of new judges to be appointed, gave several of the places to those not of his political faith. It is, however, to be expected that the Presidents of the United States, as a general rule, will place upon the Supreme Court none whose political opinions are not similar to their own. It is a court wielding too great a political power to allow this ground of qualification to be lightly passed over. Precisely because of this, the political antecedents of the justices of the Supreme Court are more apt to be discoverable in their opinions than is the case in State courts. Professor William G. Sumner, in referring to the change of character of the Supreme Court by reason of Jackson's appointments to it, remarks with some truth that "the effect of political appointments to the bench is always traceable after two or three years in the reports, which come to read like a collection of old stump speeches."[Footnote: "Life of Andrew Jackson," 363.] In States where the judges are only appointed for a certain term of years, it is not unusual for the Governor, if he has the power of nomination, to exercise it in favor of outgoing judges who are his political opponents. So, also, if there happen to be several original vacancies to fill, it is the traditional method in a few States to give one of the places to a member of the opposition party. If the election belongs to the legislature, a similar practice prevails in some of the older States. In Connecticut but six instances of refusing a re-election to judges of the higher courts for mere party reasons have occurred for more than a hundred years.[Footnote: Judges Baldwin, Goddard, Gould and Trumbull were dropped in 1818 and 1819 as an incident of the political revolution which destroyed the Federalist party in Connecticut and brought about the adoption of a Constitution, under which the judges were to hold for life, to replace the royal charter. Judges Seymour and Waldo were dropped in 1863 during the Civil War, because they were classed with the "Peace Democrats." Their successors, however, were appointed from the "War Democrats," though the legislature was Republican.] In Vermont, where elections to the Supreme Court were annual, Judge Redfield was placed on the Supreme bench and then re-elected year after year for twenty-three successive years by legislatures controlled by the party politically opposed to him.[Footnote: Edward J. Phelps, "Orations and Essays," 220.] In a few States it is not customary for his party to renominate a judge more than once. Two terms are considered enough for one man, and when he has served them he should make room for some one else. Many a judge has thus been taken from the bench at a time when, with the aid of experience, he was doing his best work. Appointments to appellate courts are generally provided for by a scheme calculated to prevent any sudden and general changes of membership. Not more than one or two receive an appointment in any one year, so that the terms of not more than one or two can expire at the same time. Where judges hold for life or--as is frequently the case--if there is a constitutional provision that no judge shall hold office after reaching the age of seventy, the vacancies will, of course, occur and be filled at irregular intervals. All this, in connection with the natural tendency to reappoint judges who have earned the public confidence, secures to the court a certain continuity of existence and consistency of view. In every court of last resort in the older States there will be apt to be found some who have served ten or twenty years and were at first associated with those who had themselves then served as long. It is not easy to "pack" a court thus constituted. If, however, some question of supreme political importance is looming up, likely soon to become the subject of litigation, the nominating or appointing power is not likely to be insensible of the party advantages that may result from its decision in a particular way by the highest judicial authority, nor of the importance of the vote to be cast by each who may share in its administration. During the Civil War Congress passed a conscription law. The Supreme Court of Pennsylvania pronounced it unconstitutional, and advised the issue of a temporary injunction to prevent its enforcement by the officials charged with that function. The term of the Chief Justice was about to expire. The decision had been made by three judges, of whom he was one, against two who dissented. The political party to which he belonged renominated him, but he was defeated at the polls. A motion was soon afterwards made to dissolve the injunction. His successor joined with the former minority in advising that the motion be granted, and on the ground that the Act of Congress was not unconstitutional. The two remaining members of the court adhered to their former opinion.[Footnote: Kneedler _v._ Lane, 45 Penn. State Reports, 238. See this case reviewed in Pomeroy, "Introduction to the Constitutional Law of the United States," Sec. 479.] In some States the justices of the Supreme Court select one of their number annually to be Chief Justice for the year ensuing. In several, whenever there is a vacancy, the office falls, as of course, to the justice who has the shortest time to serve. This is a ready way to pass a title about and attach it to as many men as possible in quick succession. Its ostensible defense is that there can be no unfair discrimination and favoritism in such an appointment, and that as the judge whose term has most nearly elapsed will naturally be the one who has served the longest, he will certainly have the advantages of experience. These considerations deserve little weight in view of the sacrifices that such a scheme entails. Unfair discrimination is indeed prevented, but so is a just and proper discrimination. The plan of promoting the senior associate justice when a vacancy occurs is liable to similar objections, though in less degree. He is at least not unlikely to serve for a considerable time. To be a good Chief Justice requires special gifts. Whoever holds that office should have not only learning and ability, but patience and courtesy in a high degree. He must be methodical in the transaction of business, if the docket of the court is a large one. He should have the art of presiding over its public sessions and disposing of the minor motions which may be made from the bar with dignity and tact. He should be a man who commonly carries his associates with him at its private consultations in support of any doctrine which he is firmly convinced to be the law applicable to the case in hand. He should have the faculty of conciliation. He should know when to yield as well as to insist, in order to secure the best results for his court and for his State. He should be able to write a clear and forcible opinion. The best lawyer in the jurisdiction who may be supposed to have these qualities and will accept the position ought to be at the head of its judiciary. Many have been tempted from the bar by an offer of that place who would have refused the appointment of associate justice. John Marshall was one of these. Chief Justice Parsons of Massachusetts was another. In the Supreme Court of the United States no Chief Justice has ever been appointed from among the associate justices, although a nomination was offered to and declined by Mr. Justice Cushing in 1796. In the State courts the general practice is to the contrary, and it is common to fill a vacancy by appointing one of the associate justices. Popular election and life tenure cannot well go together. The chance of an irremediable mistake is too great. Judicial nominations are often the mere incident of the prevalence in a party convention of one faction of the delegates, whose main object is to control the nominations for other positions. American experience seems to indicate life tenure and executive nomination, with some suitable provision for securing retirement at a certain age, as likely to secure the best judges of the higher courts. This has worked well for the United States, and no State courts have stood higher in the general opinion of the bar than those thus organized. For the lower courts there is less necessity and less chance for getting men of the first rank in attainments and character. Shorter terms of office can therefore reasonably be prescribed, and the objections to popular election are correspondingly less. Even as to them, however, the plan of executive nomination is safer than that of party nomination. A man acts carefully when he is the only one whom the public can hold responsible for what is done. It is customary to provide that vacancies in judicial offices can be temporarily filled by the Executive until there is an opportunity for a new appointment or election by the proper authority. The place of a judge who is absent or disqualified is in some States, by authority of a statute or agreement of the parties, occasionally taken by a member of the bar called in to try a particular cause or hold a particular term of court.[Footnote: See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg _v._ Brown, 32 Connecticut Reports, 112.] So the English assize judges are constituted by special commissions for each circuit, which include also the barristers on the circuit who are sergeants at law, king's counsel, or holders of patents of precedence. It is hard to dislodge a judge for misconduct or inefficiency. Our Constitutions give remedies by impeachment or by removal by the Governor on address of the legislature, but lengthy proceedings are generally necessary to obtain the benefit of them, and the decision is often in favor of the judge. Party feeling is apt to have its influence in such matters. Whether it does or does not, it is an unpleasant task to assume the initiative. Those who best know the facts are the lawyers, and if some of them are the ones to move, it is at the risk, should they fail, of having afterwards to conduct causes in a court presided over by one who is not likely to regard them with a friendly eye. The number of judicial impeachments in the history of the country has been comparatively small, and few of these have resulted in convictions.[Footnote: See Chap. III.] Of the cases which were successful, the most noteworthy is that of Justice George G. Barnard of the Supreme Court of New York, who was convicted of having abused his right to issue _ex parte_ orders and of other measures of improper favoritism. The Bar Association of the City of New York brought the charges, and were influential in carrying the whole proceeding through to a favorable result. In another instance, occurring in 1854 in Massachusetts, the right of impeachment was stretched to its limit by removing a Judge of Probate, Edward G. Loring, the only real ground being that as a United States Commissioner he had ordered the return of a fugitive slave under the laws of the United States--laws the constitutionality of which the highest court of the State had recently declared to be fully settled.[Footnote: Sims' Case, 7 Cushing's Reports, 285.] Judges of inferior courts are sometimes removable by the higher ones for cause, on complaint of a public prosecutor. In such case, the proceeding being strictly a judicial one, there is more assurance of success if the charges are well founded. Here also, however, it will be known from whom they come, and the hearings are likely to be so protracted and expensive to the State that only a flagrant case will usually be taken up. The hearings on such a complaint, brought in New York in 1903, extended over thirty-six days; the stenographic minutes of the testimony covered over 3,300 pages; there were over four hundred exhibits introduced; and the items of cost presented for taxation amounted to over $20,000. Removals by the Governor on the address of the legislature have been more frequent, and occasionally have been dictated largely by party managers who desired to make places for those of their own political faith.[Footnote: Schouler, "Constitutional Studies," 288, note.] In one instance it was attempted, but unsuccessfully, in Kentucky as a punishment for giving a judicial opinion that a stay-law recently passed by the legislature was unconstitutional. A two-thirds vote of each house was required, and as in the lower house, though it voted for an address by a large majority, this could not be obtained, the proceeding was allowed to drop.[Footnote: Niles' Register, XXII, 266. See _ante_ p. 114.] In all there have been in the whole country since 1776 not over thirty removals, whether on impeachment and conviction or on address of the two houses, of judges of a higher grade than justices of the peace.[Footnote: See Foster, "Commentaries on the Constitution of the United States," Appendix, 633.] Wholesale removals have also, in rare instances, been effected for similar purposes by abolishing courts, the judges of which held during good behavior.[Footnote: See Chap. VII.] Maryland was the first to do this, abolishing a court and re-establishing it at the same session, almost in the words of the former law. Congress followed in 1802 by repealing the statute of the year before by which a new scheme of Circuit Courts was arranged and under which sixteen Federalists had been appointed to the bench. Massachusetts did the same thing in 1811 with respect to her Courts of Common Pleas.[Footnote: See Chap. VIII.] The occurrence of vacancies has sometimes been prevented in a similar manner when the nominating or appointing authority was politically opposed to the legislature. The existence of a supreme court is required by all our Constitutions, but the number of the judges is frequently left to be fixed from time to time by statute. The Federalists, when they were about to go out of power, provided that the Supreme Court of the United States should on the next vacancy be reduced from six to five, thus seeking to prevent Jefferson from filling such vacancy. By 1863 the number had been raised to ten, but three years later, when a Democratic President was contending with a Republican Congress, it was enacted that as vacancies might occur it should be reduced to seven. In 1869, when a Republican President had come in, the number was restored to nine, and the new justice for whom a place was thus made shortly joined in reversing a decision made by the court not long before and quite unsatisfactory to the majority in Congress on an important constitutional point. Similar legislation, for like reasons, has been had in many of the States. * * * * * CHAPTER XXIII THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH Every lawyer is an officer of the court as fully as is the judge or the clerk. He has, indeed, a longer term of office than is generally accorded to them, for he holds his position for life, or during good behavior. Courts could not exist under the American system without lawyers to stand between litigants and the judge or jury. It is a system that requires written pleadings, originally very artificial in form and still somewhat so. It imposes many limitations on the introduction of evidence, which often seem to shut out what ought to be admitted, and rest on reasons not apparent to any who have not been specially instructed in legal history. It divides the decision of a cause between judge and jury in a manner only to be understood after a long and close study. It gives a defeated party a right of review dependent on a number of technical rules, and to be availed of only by those who are skilled in the preparation of law papers of a peculiar kind. A class of men has therefore been set apart to keep the people from direct approach to the bench, except when they may desire to argue their own cases, which rarely occurs. In England there are two such barriers, the class of barristers and the class of attorneys. The attorneys keep the people from access to the barristers; the barristers keep the attorneys from access to the court. The attorney prepares the case, represents his client in the proceedings preliminary to the trial, and assists the barrister whom he may retain at the trial, but cannot examine a witness or argue the cause. In America we do not thus divide lawyers into two classes. There are many of them who never in fact address the court, but it is not because they have not a legal right to do so. Every member of the bar of any court has all the legal rights of any other member of it. The qualifications for admission to the bar are generally left to be regulated by the courts. In a few States they are fixed by constitutional or statutory provisions. In all, when the Constitutions do not regulate it, the legislature can. It has indeed been asserted that the admission of attorneys is in its nature a matter for the courts only.[Footnote: See _American Law School Review_, I, 211.] English history does not support this contention.[Footnote: Pollock & Maitland, "History of English Law," I, 211-217; II, 226. O'Brien's Petition, 79 Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of Court, which are mere voluntary associations of lawyers, have from time immemorial exercised the function of calling to the bar, so far as barristers are concerned, and the admission of attorneys has always been regulated by Acts of Parliament.[Footnote: See In the Matter of Cooper, 22 N. Y. Reports, 67, 90.] By our American legislatures the same course has been generally pursued. The duty of ascertaining whether candidates for admission have the prescribed qualifications is occasionally performed by the judges in person; more often by a committee of the bar appointed by the court for that purpose; in some States by a standing board of State examiners, receiving compensation for their services.[Footnote: This comes from fees paid by those examined.] The latter method was introduced in the latter part of the nineteenth century and is steadily gaining in favor. A committee of a local bar is unavoidably subject to some local influences or prepossessions. A State board can act with greater independence and maintain with more ease a high standard of admission. In early colonial days the legislature sometimes set a limit to the number of attorneys who could be allowed to practice before the courts. In some colonies the number at the bar of a particular court was fixed; in others the number of lawyers in each county.[Footnote: Acts and Laws of the Colony of Conn., May session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.] No such limitation now exists in any State, and the matter is left to be regulated by the law of supply and demand. This by the census of 1900 required over 114,000. The freer a country is, and the quicker its step in the march of civilization, the more lawyers it will naturally have. The growth and importance of the bar are stunted wherever it is overshadowed by an hereditary aristocracy. A land of absolutism and stagnation has no use for lawyers. The institutions of China would not be safe if she had a bar. Lawyers are a conservative force in a free country; an upheaving force under a despotic government. In Russia one is found enough to serve over thirty thousand; in the United States there is about one to every six hundred and sixty of the population,[Footnote: In 1870, there was one to every 946; in 1880, one to every 782.] and in England one to every eleven hundred. The colonial lawyers of the seventeenth and eighteenth centuries occupied an inferior place in the community as compared with that now held by the legal profession. There was comparatively little opportunity to rise to eminence. The positions on the bench, as has been seen, were largely held by those not trained as lawyers. Before such judges it was a waste of words to make elaborate arguments on points of law. Among the first settlers were a few who had been educated for the English bar. One of them, in Massachusetts, Rev. Nathaniel Ward, drafted the _Magna Charta_ or "Body of Liberties" of that colony, adopted in 1641. His opinion of the need of lawyers may be inferred from the fact that it provided expressly that those who pleaded causes for others should receive no compensation for it. Virginia adopted the same policy from 1645 to 1662. Later, lawyers practicing in Massachusetts were excluded from the General Court. As that had large judicial powers, it was thought fitting to give no opportunity to any to sit there to-day to judge and to appear to-morrow before an inferior court to argue as an advocate.[Footnote: Hutchinson, "History of Massachusetts," III, 104.] As time went on, an American was occasionally sent to London to read law. He was apt to be a young man of fortune, who entered the Temple or the Inns of Court more as a means of gaining pleasant acquaintances than for any serious purpose of education. Most of them came from Pennsylvania and the Southern colonies. Two Presidents of the Continental Congress, Randolph and McKean, four signers of the Declaration of Independence, Heyward, Lynch, Middleton, Edward Rutledge, and John Rutledge, one of the first associate justices of the Supreme Court of the United States, were of the number. Not infrequently there were legal proceedings in London which concerned colonial interests. Their charters were attacked or colony laws and judgments put in question before the Lords of Trade and Plantations. In such proceedings, if counsel were needed, English barristers were generally employed. An American lawyer now and then went over to consult with them and perhaps to join in the argument, but the leading part was theirs. It was not until the quickening and deepening of American life which preceded and portended the Revolution that anything like a colonial bar, led by a man of learning and position, really came into existence.[Footnote: "Two Centuries' Growth of American Law," 16.] From the middle of the eighteenth century to its close there was a steady and rapid progress in this direction. Legal education was taken seriously. In the case of many it began with the fundamental notions of justice and right. The Greek and Latin classics on those heads were read.[Footnote: "Life of Peter Van Schaick," 9.] The private law of the Romans was studied to a greater extent relatively than it is now. The first chair of law in the United States was established at William and Mary College in 1779, and there, under Chancellor Wythe, John Marshall was a student. President Stiles of Yale, in his "Literary Diary," so full of that kind of historical incident which after a few years have passed it is most difficult to trace, enumerates the books read by his son, Ezra Stiles, Jr., between 1778 and 1781, in preparation for the Connecticut bar, under the advice and in the offices of Judge Parker of Portsmouth and Charles Chauncey of New Haven. They comprehended, besides much in English and Scotch law, Burlamaqui's _Principes de Droit Naturel_, Montesquieu, _de l'Esprit des Lois_, the Institutes of Justinian, certain titles of the Pandects, and Puffendorf _de Officio Hominis et Civis juxta Legem Naturalem_. James Kent at about the same time was reading Grotius and Puffendorf in the office of the Attorney-General of New York, and Edward Livingston, under Chancellor Lansing, explored all parts of the _Corpus Juris Civilis_.[Footnote: Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few years later, under the instruction of Chief Justice Parsons of Massachusetts, took up Vattel and the Institutes of Justinian.[Footnote: Report of the American Bar Association for 1903, 675, note.] The latter, as well as Van Muyden's _Compendiosa Tractatio_ of them, his father had studied in his preparation for the bar thirty years before.[Footnote: "Life and Works of John Adams," I, 46.] The lectures of Chancellor Wythe at William and Mary, like those of Mr. Justice Wilson in 1790 at the University of Pennsylvania and of Chancellor Kent in 1794 at Columbia, were designed, as were Blackstone's at Oxford, to give such information as to the nature and principles of law as might be of service to any one desirous of acquiring a liberal education. Such instruction could not be considered as anything approaching a proper preparation for entering on the practice of the legal profession. The United States preceded England in the endeavor to provide such a preparation by a systematic course of study pursued under competent teachers at a seat of learning established for that sole purpose. The need of something of the kind was felt to be pressing after the independence of the United States had been fully established. An unusual number of young men of promise were turning from the army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788, the number of attorneys in the State of New York had risen to 120. Morse's "American Geography," ed. 1796, 506. Thirty years later it was 1,200. Miles' "Register," XIV, 311.] Those already members of it had educated themselves as best they could, with slight assistance from the lawyers in whose offices they had studied. They in turn were indisposed to do more for such as might desire to read law in their offices. Few of them were competent to do much.[Footnote: See "Life of Peter Van Schaick," 9, 13.] There was a demand for a professed school of law, and in 1784 the first in any English-speaking country was opened at Litchfield, Connecticut. There are now 104 of them,[Footnote: Report of the American Bar Association for 1903, p. 398.] with a total attendance of over fourteen thousand students. The course of study in a few may be completed in one year; in most two are required; in the rest three, with perhaps an offer of a fourth for advanced instruction leading to the degree of master or doctor of laws. The ordinary degree is that of bachelor of laws (LL.B.). The American Bar Association has had an important influence from its first organization, in 1877, in prolonging the period and raising the standards of legal education. In affiliation with it there is an "Association of American Law Schools," representing a large majority of the teachers and students engaged in law school work. This admits no institution into its ranks at which students are received without a preliminary education at least equal to that given by the ordinary high school. A few of the schools so associated receive no student, save in exceptional cases, unless he already holds a degree in arts, science, philosophy, or letters from some collegiate institution. In several of the States having boards of State examiners no one is admitted to the final examination before them who did not prior to the beginning of his education receive one of the degrees above indicated or else pass a special examination before the same board on certain prescribed studies, corresponding substantially with those ordinarily pursued in a high school. Some proof is everywhere required that an applicant for admission to the bar possesses a good moral character. It is necessarily largely a matter of form. Certificates are sometimes required from those familiar with his previous life, and sometimes the mere motion for his admission by a member of the bar representing the examining committee is accepted as sufficiently implying that no unworthy person would be thus presented. In a few States a distinction is made between attorneys with reference to the courts in which they may practice. When first admitted it is to the bar of the trial courts. Later, after a few years of experience, they can be admitted on further examination to practice also in the highest courts of the State. This distinction reaches back, in New Jersey, to the colonial era. Attorneys were there a different class from "counsellors," and, following the English practice, the style of "sergeant" was also formerly bestowed on leaders at the bar. The last lawyer bearing the title survived until nearly the middle of the nineteenth century. In this State the Governor has always issued the licenses or commissions to attorneys and solicitors in chancery, but for more than a hundred and fifty years only on the recommendation of the Supreme Court.[Footnote: _In re_ Branch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.] The admission of attorneys in the several courts of the United States is determined by rules which they respectively establish from time to time. These rules make the only qualification membership in regular standing for a certain period of time in the bar of a State and good moral character. There is no doubt that the United States have been in advance of England both in providing means of legal education and in requiring their use. The length of the course of study now established at our older Law Schools--three years--seems all that can reasonably be exacted, if a proper foundation of general discipline and knowledge has been previously laid. The first provision for one or more years of graduate study for those who may desire it was made at Yale University in 1876, and a similar opportunity has since been offered at several others; but it has been availed of by few, and of these a considerable part had in view the teaching of law as their ultimate vocation rather than its practice. Unquestionably the American bar is now, as a whole, a far better trained class of men than it was twenty or thirty years ago, and the efficiency of the courts has been correspondingly increased. * * * * * Members of the bar are always subject to punishment by the court for official misconduct. This may be by censure, temporary suspension from practice, or disbarment. If guilty of contempt of court, they can also be sentenced to fine or imprisonment.[Footnote: See Chap. XX.] As suspension or disbarment means a loss, temporary or permanent, of a livelihood, it is only ordered in aggravated cases and after an opportunity for a formal hearing. Disbarment cannot be decreed by the legislative department. That would be virtually an act of attainder. It must come from a judicial sentence.[Footnote: _Ex parte_ Garland, 4 Wallace's Reports, 333, 378.] In some States the principal trial court, which is the one by order of which attorneys generally are admitted to the bar, appoints a standing committee on grievances. In others such committees are created by Bar Associations, of which almost every State has one for the whole State, while several have also one or more local associations. It is the duty of such a committee to inquire into any instances of professional misconduct that may be brought to their notice and either institute proceedings for a hearing before themselves or bring the matter to the attention of the court, so that they may be instituted there by its order and conducted by the public prosecutor. In the larger States, several inquiries of this nature are ordinarily set on foot every year, which result in suspension or disbarment. In the smaller States they are rare, both because they have smaller bars and because the smaller a bar is the more difficult is it for any one of its number to hide any misdoing from the rest. The Bar Associations, which first began to start up soon after the Civil War, have been of great service in upholding the honor of the profession. Their Constitutions generally name this particularly as among their professed objects. One State[Footnote: Alabama] has recently under such influences, passed a statute making it a misdemeanor for an attorney to send out "runners" to solicit practice, and requiring the public prosecuting officer to institute proceedings for any violation of the law, upon the complaint of the council of the State Bar Association. The steadily and rapidly increasing proportion of lawyers to the population in the United States necessarily tends to a lowering of their average professional income, and this tendency is not fully overcome by the increase of the wealth and business of the country. The principle of the concentration of industry also works against the great majority of them. Searching titles to real estate, for instance, was until the last half of the nineteenth century part of the business of every lawyer. It is now in the larger cities monopolized by certain firms or corporations, who own copies or abstracts of the public records, laboriously prepared, which give them special facilities for doing the work rapidly and well. So collecting uncontested debts was formerly the staple of many a lawyer's practice. The general abolition of imprisonment for debt about the middle of the nineteenth century rendered the process much more difficult and the fees less, and of late years great collection agencies, generally corporations, have sprung up, with an extensive system of correspondents among members of the bar, by whom most suits of such a nature are now brought under an agreement to divide their fees with the central bureau. Until the last half of the nineteenth century there were probably no lawyers in this country whose average net income from year to year was equal to that of the leaders of the English bar. In 1806 there was but one lawyer in New England with an annual professional income of $10,000: until about 1860 there was none in Connecticut, and probably not over a hundred in the entire country.[Footnote: Parton, "Life of Aaron Burr." 153; Great American Lawyers, III, 55.] In 1827, William Wirt was informed by Justice Thompson of the Supreme Court of the United States that "six, eight, and ten thousand dollars is considered great practice in New York and ten thousand dollars the _maximum_."[Footnote: Kennedy, "Memoirs of William Wirt," II, 209.] Thirty years later the same was true, except that twenty thousand dollars had then become the highest annual average, and that but of a very few.[Footnote: Parton, "Life of Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000 when at the height of his career.[Footnote: Harvey, "Reminiscences of Daniel Webster," 84.] The Civil War was the occasion of many important business enterprises, and gave rise to much litigation. It brought also a great increase of wealth to the North and West, and new and greater investments of Northern capital in the South. From that time the business of the leading lawyers in every State became more remunerative. Incomes of $20,000 and $25,000 were occasionally earned in the smaller States, and of four or five times as much in the larger ones. The American lawyer of the eighteenth century was apt to have his office in his house. During the nineteenth century this became less and less common and is now comparatively rare. In cities certain streets, generally near the court-house, are crowded with lawyers' offices. These are generally over business stores, but in some places residential streets have been converted to this use, and what was formerly a handsome mansion will have the chambers of counsel on every floor. In many of the counties in Virginia chambers for the accommodation of the lawyers are built in the rear of the court-house on public ground. A small rent is paid by the occupants to the county. When court is about to open each day the crier calls out from one of the court-house windows the name of each lawyer to notify him of the fact. The relations of the bar to the bench assume a peculiar character under the conditions of American society. The judges stand closer to the lawyers in this country than in any other. All of them, unlike those of continental Europe, have been themselves practicing lawyers. The majority, unlike those of England, are young men, sitting in minor courts, who have generally left the bar for but a brief period, expecting, if not desiring, soon to return to it. Not a few hold court but one or two days in the week or one or two hours in the day, and for the rest of the time are actively engaged in professional practice before other courts. Those of the latter description always occupy a somewhat unfortunate position. The State does not expect them to devote themselves entirely to its service. It does not provide for their compensation on that basis. It expects them to continue the general practice of their profession, except so far as their judicial duties may necessarily prevent. They certainly cannot practice in their own court with propriety. Statutes to prevent it are not uncommon. For the same man to charge the jury one day as judge and address them the next in argument as counsel must tend to confuse their notions as to the weight they should give to what he says, and to lend it often a weight which it may not deserve. So, too, his relations to the clerk and other court officers are such officially as to give him opportunities for influencing them when he is engaged at the bar, not shared by his brother lawyers.[Footnote: French _v._ Waterbury, 72 Conn. Reports, 435; 44 Atlantic Reporter, 740.] There are, however, in every State quite a number of judges of higher courts who receive a salary deemed sufficient for their support and who are expected to devote their entire time to judicial duties. As respects those of the United States courts there is a statute (U. S. Revised Statutes, Sec. 713) making it criminal for them to practice law. Similar legislation exists in some of the States with regard to the judges of their higher courts, but without it a sense of propriety dictates their abstaining from it, and it has even been held that the right of any judge of a superior trial court of general jurisdiction over important causes to act as an attorney or counsellor, except in his own cause, is suspended by implication of law so long as he retains his seat on the bench.[Footnote: Perry _v._ Bush, 45 Florida Reports; 35 Southern Reporter, 225.] The demeanor of the judges to the bar is inevitably affected to some extent by their tenure of office. If they hold their places for life, they naturally are less sedulous to avoid giving offense and less ready to tolerate a poor or tedious argument. A greater distance is maintained for this cause between bench and bar in the federal courts than is usual in most of the State courts. No judge, however, desires to have the reputation of being overbearing, rough or impatient, and few are. Chief Justice Parsons of Massachusetts at one time fell into an inveterate habit on the circuit of checking counsel in argument rather curtly when they seemed to him to wander from the vital point. The leaders of the bar of Boston finally determined to stop it, and arranged at the next term at which he was to preside that whoever of them was thus treated should leave the court room. The first to address the court was checked in the usual manner, and observing that he regretted his argument seemed not worthy of the court's attention, took his papers and went out. The next met the same kind of interruption in the same way, and so on until the court room was cleared. The Chief Justice afterwards sought an explanation, received it in good part, and was forever cured of what had been a serious impediment to his usefulness on the bench.[Footnote: See George F. Hoar, Autobiography, II, 397.] Occasionally a trial judge will have a similar lesson taught him by finding no business to be disposed of when he opens court, and learning later that the bar agreed to the continuance of all pending cases, because they did not care to trust him with them, or were disinclined to submit to his manner of conducting a hearing. Judges are universally desirous of securing the good opinion of the bar as respects their knowledge of law and powers of discrimination and analysis. The bar is their little world. It is a critical world, for in every case that is tried there will be one lawyer who is dissatisfied with the result, and likely to think the judge wrong rather than himself, if every proposition of law which he has asserted has not been conceded. It is much more common for American judges to be too tolerant of a waste of time by counsel than to be too impatient at it.[Footnote: See a striking instance of this tendency given in Cleveland, Painesville & Eastern R. R. Co. _v._ Pritschau, 69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They dislike even to seem harsh. Most of them also hold office only for a term of years and do not forget that undue severity may jeopardize their re-election. This is one reason for the fact that at all points the bar are subject to fewer restrictions upon their conduct in the trial of causes in American courts than in those of most other countries. Another, and a more fundamental one, is that the judges and lawyers stand more nearly on the same level both in public regard and official position. The lawyer holds a more permanent office in the court than the judge. He is quite likely to be his superior in learning and ability. He belongs to a class that is influential in the community, and whose members usually share quite actively in the direction of party politics. The judge in most instances holds but a brief authority. He does not wish to parade it in such a manner as might seem offensive. He is in danger of seeming to parade it if he goes beyond what is necessary in regulating the conduct of the lawyers who may appear before him. The judge who keeps a rigid watch on the examination of witnesses to exclude all improper testimony, whether objection be made to it or not, declines to hear argument on matters that may appear to him too clear to justify it, and is impatient when argument on doubtful points is continued longer than he thinks worth while, may be respected, but he will never be popular. Trials for these reasons are longer in the United States than in England. Fewer summary rulings are made. More questionable evidence is admitted. More time is allowed to counsel in the argument of the cause, and more freedom in arguing points that may seem immaterial to the court. The broad liberty of appeal generally allowed is another reason for hesitation on the part of trial judges to interfere more than seems absolutely necessary with the management of a cause by counsel. It is not merely the legal right of appeal but the practice under it which is a peculiar feature of our judicial system. A foreign lawyer often hesitates to cross swords with the judge. He distrusts his own judgment if it differs from that of the court. He defers to the opinion of the bench, not only as stating the law of the case, but as probably stating the law of the land. He therefore seldom appeals on minor points of procedure, even if he could. In the United States probably one case in ten of all that go to trial is carried up for review on points of law; many of them mere matters of practice not affecting the merits of the cause. The American lawyer can also safely speak with freedom of the conduct of the government or of high officials should it come in question. Those in any court, high or low, who hope for a reappointment know that the best way to obtain it is to secure the good will of the bar. The reputation of a judge depends on the opinion which the lawyers have of him. The general public may be deceived as to his character, ability and attainments; the bar cannot be. In the public sessions of court there are few judges who are not impressed with the necessity of maintaining the dignity of their position as representing the power of the State. The lawyers recognize this feeling as just. It is common for them to rise as a body when the judge enters the bench. They find no difficulty in using the conventional style of address of "May it please the Court," or "May it please your Honor." When a ruling is made in the course of a trial the lawyer, whose client is adversely affected by it, accepts it without further discussion, simply reserving his exception, if he have one, for purposes of review in a higher court. If, in addressing the jury, counsel exceed the bounds of professional license in commenting on testimony or alluding to the character of the parties, the court will check them without hesitation. Less outward respect was shown toward the courts by the bar in former times than now, and it often received less courtesy of treatment from the bench. An incident occurring in Massachusetts about the beginning of the nineteenth century may serve as an illustration. Robert Treat Paine, a signer of the Declaration of Independence, resigned his seat on the bench of the Supreme Judicial Court in 1804, at the age of seventy, largely on account of deafness. Naturally somewhat imperious in temperament, his bearing toward the bar had seemed harsher from this infirmity. Fisher Ames used to refer to him as _Ursa Major_, and once told a friend that he should not go into court again, when Judge Paine held it, without a club in one hand and a speaking trumpet in the other. Theophilus Parsons, not long afterwards made Chief Justice of the State, was arguing before him one day when the judge, under the misconception into which a deaf old person so easily falls, that the younger generation all speak hurriedly and indistinctly, cried out, "Mr. Parsons, I tell you once for all, take that glove off your tongue." "Certainly, Sir," was the quick retort, "and may I beg your honor to take the wool out of your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.] Some twenty years later Roger Minott Sherman, the leader of the Connecticut bar, in trying a cause before an empty-headed judge who had been put on the bench for no other apparent reason than that his father was a man of distinction, quoted several English authorities and was about to read from another when the judge remarked that he need not take the trouble to read anything more of that sort to him. "Then," said Mr. Sherman, "with your Honor's permission I will read from it to the jury, and let me say that it is an opinion of Lord Ellenborough, a Chief Justice of England who rose to the bench by his own merits, and shone by no reflected light." One of the anecdotes of the Boston bar is that while Samuel Dexter, one of the great lawyers of his day, was arguing a cause in the Circuit Court of the United States before Justice Story, soon after his accession to the bench, the court suddenly interposed, as a certain principle was asserted, with "That proposition is not law, Sir," to which Mr. Dexter retorted, "It is the law, if your Honor please, and will finally be declared to be the law by this court," as indeed it was later by Justice Story himself.[Footnote: Payne, "Reminiscences of the Rhode Island Bar," 241.] Such a passage at arms between court and counsel as took place in either of these instances could now hardly occur. Out of court there is no longer this distance between judge and lawyer. While they will not talk over an unfinished case, one that is finally disposed of is often the subject of free comment by each. They are now entirely upon the same level in the community. Officialism is put off when the court room is closed. Socially they meet in the same circles and on the same footing. It is considered not improper for a judge to accept the hospitality of a lawyer concerned in a case before him, and even a case on trial. The American rule in this respect is much less strict than the English.[Footnote: See "Memoir of Chief Justice Parsons," 208-211.] * * * * * CHAPTER XXIV THE LAW'S DELAYS The right to be heard before judgment, the right to have judgment rendered only on due process of law, and the right in most cases to a jury trial, necessarily make the course of justice slower in this country than it need be in one where there are no such guaranties in favor of those against whom the aid of a court is invoked. The plaintiff, too, has corresponding rights. It was found not so easy by Frederick the Great to enforce his famous decree that every lawsuit in his dominions must be finished in a year. In a freer land no such result is possible. The power of the judge to expedite trials is also much less in the United States than in most countries. They must be had mainly on oral testimony. The testimony must be so given that thirteen different men may each understand it. What the witnesses may be allowed to tell, and what they cannot be, depends on the application of numerous and artificial rules of evidence. If there is a question as to whether this rule or that applies, the judges sometimes invite and generally allow a discussion by counsel. Appeals are liberally conceded. If exceptions to any ruling of the court are to be made the basis of proceedings in error, they must be carefully noted at the time, and afterwards made the subject of a lengthy set of papers. Many trial judges are young men of little experience either on the bench or at the bar. They are learning the law by administering it. Such men cannot decide controverted points in a moment, and shut off all unnecessary discussion in the manner that might be expected and tolerated from judges of the first rank. It is hardly probable that they will always come to the right decision at last. Hence it is that so great a liberty of appeal is granted in every American State. Appeal means delay.[Footnote: See Chap. XIX.] A man is fortunate whose appeal is heard within three months and decided within six. Oftener he must expect to wait a year or two. During a long course of years an appeal to the Supreme Court of the United States could not be reached for argument in regular order in less than three years after it was taken. In Nebraska, for some time prior to 1901 the Supreme Court was so overwhelmed with business that it could not hear a cause until five years after it was docketed. In 1882 a brakeman was injured on a New York railroad. He brought suit against the company, and in 1884 recovered $4,000 damages. The judgment in 1886 was reversed on appeal. On a new trial he got a verdict for $4,900. This was appealed to two courts successively. The first affirmed and the second reversed the judgment. In 1889, there was a third trial, at which the company won. Two appeals by the brakeman followed. On the first the intermediate appellate court, in 1894, decided against him. On the second, in 1897, the court of last resort decided for him. For the fourth time the case came on in the trial court, and a verdict for $4,500 was recovered. The company appealed and with success. A fifth trial gave him a verdict for $4,900. This, too, was set aside on appeal. A sixth trial followed with exactly the same results. In 1902, the seventh and final trial took place. The verdict this time was for $4,500. The company appealed again, but was defeated.[Footnote: Case and Comment, X, 50.] A lawsuit that embraces seven appeals and lasts for twenty years is, of course, a rarity, but the system of administrative justice under which such things are possible is faulty somewhere. The right of trial by jury is one cause of such delays. The broad right of appeal is another. The want of skill and experience on the part of trial judges and trial lawyers may be a third. The twenty-three English judges of the High Court of Justice (with the aid of masters in chancery and referees) actually try and determine about fifty-six hundred cases a year.[Footnote: This was the average number for each of the years 1900 and 1901.] Each judge, therefore, on the average, dispatches over two hundred and forty. No American judges under our American system of practice could do as much and do it well. We tolerate a succession of motions and objections and arguments from the bar which English courts would not. We often take more time in impanelling a jury than they would in trying the case. The American bar, unlike the English, is not so constituted that a certain number of its members are professedly devoted in a special way to the trial of cases. The English barrister in active practice may almost be said to do nothing else. His standing and his income depend on his ability to try case after case in rapid succession. Others are responsible for their slow and careful preparation. He is responsible for their quick and effective dispatch when the preparation is ended. He becomes necessarily familiar with the _technique_ of a trial at every point. In examining a witness, he strikes directly at what is material, and would be ashamed to appear ignorant of what that is. In argument he stops when he is through. The ordinary American lawyer who tries a case to-day, draws papers constituting a partnership or a corporation the next, and prepares an opinion on the construction of a will the day after, has not that concentration of knowledge which comes from concentration of occupation. The art of making a clear and definite statement of the points in controversy on paper is also one not sufficiently cultivated by the American bar. Without it the system of "code pleading," which has in most States supplanted the rigid and often meaningless forms of the common law, leads to confusion and obscurity. The claims of each party ought to be, but seldom are, so presented that matters of law are, so far as possible, kept distinct from matters of fact, and what he means to prove is set forth, but not the evidence by which he hopes to establish it. This looseness of pleading leads to endless motions to expunge this and correct that, and time of the court is taken up by the preliminaries of trials which, if the lawyers used more care or had more skill, would be devoted to the trials themselves. Still worse is it when such motions are postponed until the case comes on for final hearing, and witnesses and juries are compelled to wait during tedious arguments over questions of mere form. In our great centers of population business under these circumstances almost necessarily accumulates too fast for the courts to handle it. In bringing on criminal trials there is little delay, unless at the request of the accused, and for what seems good reason. Our Constitutions generally provide that whoever is to be tried on a criminal charge shall be tried promptly, and the practice of the courts conforms to this rule. The broad right of appeal, however, for errors of law on the part of the court may serve to postpone the execution of a sentence, and too many new trials are granted by the courts for steps in procedure in matters of a purely technical character. Delays from this cause are, however, comparatively infrequent. Most convicts are too poor to take advantage of it. Most also know that their sentence is just, and are anxious only to have it executed and through with as soon as possible. In hardly one case in a hundred is an appeal taken or, if taken, pursued to the end.[Footnote: See Chap. XVII.] In our largest cities the disposition of criminal business occupies the time of several judges, and the prosecuting officer has a staff of professional assistants. In cases of such importance as to call for his personal management a postponement is occasionally inevitable. In Chicago, in December, 1903, over a thousand cases were awaiting trial in the Criminal Court. It tends to expedition in the trial of any cause if it is heard before a judge especially familiar with the class of questions which it involves. Criminal courts, particularly in cities, are largely held by judges whose work is either wholly or mainly confined to them. This helps greatly to prevent delays in such tribunals. For a similar cause admiralty business is dispatched with great rapidity by the District Judges at our principal ports, and patent causes by the Circuit Courts. In the criminal courts of New York City in 1903, there were about 3,000 prosecutions on which indictments were found, and the defendant committed for want of bail. In most of these cases there was a plea of guilty, but counting them with the others, the average time as to all which elapsed between the original arrest and the final judgment was only eight days. During the same time those who gave bail were generally tried within three months from their arrest.[Footnote: Nathan A. Smyth in the Harvard Law Review for March, 1904.] An insufficiency of judges was formerly one great cause of delay, but the modern tendency has been to have too many, rather than too few. In the Court of Chancery in Virginia (which was held by a single Chancellor, then a man seventy-six years old) there were in 1802, 2,627 causes pending at one term. In the city of New York a jury trial in civil causes cannot ordinarily be reached until two years after they are brought. In its principal trial court between four and five thousand cases are annually disposed of, and in 1903, there were nearly ten thousand on its docket. When the criminal courts in the borough of Manhattan--the greatest division of the city--were opened in October of that year, there were nearly five hundred different prosecutions to be disposed of, and a hundred and sixty-seven prisoners awaiting trial who had been unable to procure bail. In the county containing the city of Chicago (and which contains little else), there were in 1903 twenty thousand civil cases on the dockets of the courts. This mass of business it would require more than two years and a half to dispose of with the number of judges then provided, were no new suits instituted to divide their attention. A very large part of the cases tried to the jury are claims for damages for accidental injuries received by employees in the course of their service. In the county in Missouri including Kansas City there were, in December, 1903, over fifty-one hundred civil causes on the dockets of the various courts. The population of the county was less than two hundred thousand. About three-fourths of the cases were against corporations for injuries received by their employees. The defendant in such an action is generally in no hurry to bring it to trial. The plaintiff often is not. He may have a weak case, brought in the hope of forcing a settlement. He has probably no money to pay his lawyer for trying it, and finds it hard to get together what is necessary to summon his witnesses and provide expert testimony as to the nature of his injuries. Whenever it is tried, however, he is sure to want a jury, for if the case is a good one a jury is apt to give larger damages than a judge, and if a bad one a jury is less likely to appreciate its weakness.[Footnote: McCloskey _v._ Bell's Gap R. R. Co., 156 Pennsylvania State Reports, 254; 27 Atlantic Reporter, 246.] A jury trial is much slower than a trial before a judge, although the decision is apt to come more quickly. It also facilitates appeals by necessarily presenting more occasions for error. A judge in trying a cause, if evidence of doubtful competency is offered, can admit it provisionally and exclude it afterwards if, on deliberation, he thinks that it should not be considered. With a jury this is impossible. There must be an immediate ruling one way or the other. In the charge to a jury, also, opportunities are offered for exceptions which do not exist if the cause is to be decided by the judge alone. He does not have to instruct himself in public. He can study the case in private at his leisure. A cause of delay formerly existed in several States which arose from the method of computing the costs taxable against the losing party. They included, by statute, a certain sum, say twenty-five or thirty-three cents a day for each day's attendance at court by the prevailing party. This was construed to mean each day during which the action lay in court, since upon any of them it might by possibility be called up, and the client was always represented by his attorney of record, a notice to whom was a notice to him. Christian Roselius, one of the leaders of the New Orleans bar in the nineteenth century, once said that he had spent a fourth of his life in the court house waiting for his cases to be called. The lawyers, as the duty of attendance fell on them, generally considered this allowance as their perquisite. An attorney with a large docket received, therefore, a number of dollars for every day the court sat, and the longer the term lasted or the more terms to which a cause was carried over, the larger was his gain if his client ultimately obtained judgment, and the defendant was of financial responsibility. This system was not universally discontinued until the last quarter of the nineteenth century. A few States, by statute or constitutional provision, set a certain time within which a decision must be rendered after the trial. California gives ninety days; Idaho (Const., Art. V., Sec. 17) thirty. A sanction for the law sometimes provided is that the judge cannot draw his salary until he has made oath that he is in no default. * * * * * CHAPTER XXV THE ATTITUDE OF THE PEOPLE TOWARD THE JUDICIARY Americans are proud of their country and of their State. They are proud of their scheme of government, by which an imperial world-power has been created for certain national and international purposes, resting on a collection of States, each of which is an independent sovereignty, absolutely as respects the others, and for the most part as respects the United States. They are in the mass an educated and intelligent people. The public schools have thus far been found adequate to Americanizing the children of foreign immigrants. The colored population of the South stands largely by itself, and constitutes no active and self-moving force in matters of political concern. An educated and intelligent people living under a government of written law of their own making cannot but know how vital it is that this law should be fully guarded and fairly administered. Americans have become distrustful of their legislatures. They believe that much of their work is ill-considered, and that some of it has its source in corruption. They are far removed from the chief executive magistrates, and from the sphere in which they move. The President comes nearer to them than the Governor of their State because he stands for more, and personifies their country, but it is not from him that they look for peace and safety in the ordinary affairs of life and home. They look for these to the courts, and they know that they will seldom look in vain. Only an educated and intelligent people can live under a written Constitution. It requires of those whom it governs a certain spirit of conservatism, a certain sentiment of reverence for ancient institutions. Our Constitutions are mainly the work of former generations. We may amend or recast them, but the substantial framework will remain the same. Our Declarations of Rights speak the language and the lessons of the eighteenth century. Their provisions are almost wholly aimed at our executives and legislators. They give guarantees which the judiciary only can enforce. No people can steadily prosper unless a just mean be preserved between reform and conservatism in the administration of the government. The courts stand for conservatism, but by their recognition of custom as law, and their free use of logic and analogy to develop law, they also keep a door open for the entrance of reform. The courts also come very close to the people. They are to be found in every county and almost every township. They settle the estates of the dead. They protect the living. They act largely through juries made up of the people and returning to them after a brief term of public service. All these considerations put Americans in a friendly attitude toward the judiciary. It makes less show of authority than the policeman or the militiaman. But the people feel that it has authority and is ready to exercise it always to secure that right be done. When a plain man who thinks that he has been wronged by another declares that he "will have the law on him," it expresses his conviction that he can get justice from the courts. The creation of the judiciary of the United States was welcomed at the outset by all.[Footnote: See "Life of Peter Van Schaick," 435.] It was not until party feeling had become intense that Republicans found it difficult to look with approval on a force evidently becoming stronger every day, and that Jefferson could describe the Supreme Court as the sappers and miners who were gradually undermining the foundations of American liberty.[Footnote: Letter to Thomas Ritchie of Dec. 25, 1870. "Works of Thomas Jefferson," VII, 192.] Of the political questions which engaged attention over the whole country from time to time from the adoption of the Constitution to the close of the Civil War, almost all bore some relation to the institution of slavery and derived their real vitality from that connection. Slavery depended on State laws. Unless the authority of each State to allow and regulate it were preserved, its countenance would be endangered. This was largely the source of the "State Rights" cry. Almost all the powers which the United States possessed the States had lost. For thirteen years each had been in the position of a full sovereign. Its courts had exercised jurisdiction over all kinds of actions. Now a new set of courts had risen up having over many actions an equal jurisdiction, over some a superior one.[Footnote: See Chap. X.] The case of Chisholm _v._ Georgia,[Footnote: 2 Dallas' Reports, 419.] in 1793, and the institution of similar suits against other States of the South showed that the Supreme Court of the United States claimed authority to render a money judgment against a State, which meant that it could then issue an execution to collect it by levying on the property of the State. In 1798, the Alien and Sedition Laws were passed, and a crime previously cognizable exclusively in the State courts was made a subject of prosecution in those of the United States if it affected an officer of the United States. A member of Congress, Matthew Lyon, of Vermont, who was sentenced in the Fall of that year to a fine of $1,000 and four months in jail for writing of the President and Senate, that his message to Congress in 1797 was a bullying speech, which the Senate in a stupid answer had echoed with more servility than ever Geo. III. experienced from either house of parliament, served his time and paid the fine, but for the amount of the latter he was reimbursed by Congress in 1840. The case of Jonathan Robbins[Footnote: See Chap. III.] in South Carolina in 1799, showed that the Circuit Court at the request of the President could surrender an American citizen to a foreign government to be carried off and tried for murder. This and the sentence of Lyon became immediately the subject of hot discussion in Congress, and both contributed to the political revolution which put Jefferson in the seat of Adams in 1801. The creation by the outgoing party of places for eighteen new Circuit Judges appointed by Adams in the last month of his administration strengthened the popular feeling that the courts of the United States were too powerful. That Act was at once repealed,[Footnote: See Chaps. IX, XXII.] and also the provision for the next regular term of the Supreme Court. The latter measure was taken to prevent any legal proceedings in the Supreme Court to secure its intervention in behalf of the displaced judges. The new circuit system had been swept away, but the full bench at Washington, headed by Marshall, remained. The unsuccessful impeachment of one of them followed in 1804.[Footnote: See Chap. III.] His acquittal the next year, and that of a majority of the Supreme Court of Pennsylvania,[Footnote: McMaster, "History of the United States," III, 159.] who were impeached there at the same time for punishing a libel on certain proceedings before that court by a sentence of imprisonment, satisfied all that it was practically impossible to secure the removal of a judge except for the gravest cause. Judicial independence had been secured by the very struggle to defeat it. What has won in any contest finds favor with the multitude. They admire a victor. From this time on the courts both of the United States and the States grew in public esteem. When those of the former seemed to trench on the fields of State sovereignty, particularly in the South, the inroad was resented.[Footnote: See letters of Marshall alluding to this, in "Proceedings of the Massachusetts Historical Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern State it was even opposed by force.[Footnote: See Chap. X.] As late as 1854 the supremacy of the Supreme Court of the United States in expounding the federal Constitution was contested by the courts of a Northern State; there also in a case growing out of the system of slavery.[Footnote: Ableman _v._ Booth, 21 Howard's Reports, 506.] Another decision by the same tribunal of a similar nature--that in the Dred Scott case[Footnote: Dred Scott _v._ Sandford, 19 Howard's Reports, 393.]--greatly strengthened the confidence of the Southern people in the federal courts, and weakened that of the North. It did much to bring on the Civil War, but the result of that struggle was to confirm the authority not only of the Supreme Court but of the Supreme Court as it was under Marshall and his original associates. In 1901, the centenary of his appointment was celebrated all over the country, North and South. Such a tribute was never paid before in any country to the memory of a judge. His services were commemorated for the very reason that led Jefferson to depreciate them--because they led to the establishment of a strong national government with a controlling judicial authority adequate to protect it within its sphere from interference or obstruction in any way by any State. Confidence in the State courts has also been strengthened during the last century. It was greatly shaken at the time of the fall of the Federalists. They had lost the executive and legislative power, but they retained the judicial, and the Republicans found it hard to tolerate courts that represented the political ideas of a former generation. This continued long after the extinction of the Federalist party, and often extended to distrust of judges elected by the Republicans who were thought to have become affected by the influence of their senior associates. In the New York constitutional convention of 1821, Peter R. Livingston appealed to the lawyers present to say "whether it has not been the case that when a man in the country of any political standing has had a suit depending at a circuit court, he has not consulted with his counsel to know what judge was to preside at the circuit; and whether he has not been frequently told that a political judge was to preside and it would not do to let the cause come on."[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 618.] Who, he asked, were the present judges of their Supreme Court? "Judge Spencer came into office under a republican administration; Judge Van Ness was appointed by a mongrel council; and the elevation to the bench of Judge Platt was occasioned by the defection from the Republican ranks of a man elected to the Senate from the county of Dutchess, who acted the part of a political Judas, and sold his party. We have been bought and sold--there is not one of these men who would have been on the bench if our administration had been truly republican.... There is not a man in this Convention who is a republican of any standing or character who would like to have his liberty or property placed in the hands of a political judge of a different party."[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 620.] The judiciary may also have suffered somewhat in the esteem of dispassionate observers on account of its attitude in many of the States toward the financial enterprises in corporate form, in which so much money was made and lost in the first third of the nineteenth century. In commenting on a judicial opinion in a Southern bank case, the author of one of our leading American legal treatises, himself once a judge, has referred to this period in these plain words: Decisions of this kind, which were not infrequent in the era of State banks of issue, can only be "reconciled" with modern holdings in view of the well-known fact that nearly all the politicians were creditors of those political banks, by notes often renewed, at the time when they finally suspended, and that all the judges were politicians. It can hardly be doubted that in many of those semi-barbarous decisions the judges were either rendering decisions to exonerate themselves from their liabilities to the insolvent banks or to exonerate powerful and influential politicians upon whom they depended for the tenure of their offices.[Footnote: Thompson on "Private Corporations," V, p. 5306.] It is quite probable that an insensible bias in favor of friends and neighbors may have had its share in producing the judgments to which reference was thus made, but quite improbable that they were the fruit of baser motives. Independently of other considerations, every judge is watched by sharp eyes in every step which he may take in the progress of a cause. He acts in view of the bar at large, and of two of their number in particular, one of whom probably will be disappointed by his decision, and solicitous to ascertain and employ every reasonable ground for overturning it. The Bar Association of the country have exercised a large influence during the past thirty years in maintaining public confidence in the purity of the bench. It is extremely rare that suspicion of corruption attaches to a judge; and rarer still that it attaches justly. Jurors are occasionally found who are guilty of it, and more who, without being chargeable with so black a crime, are more interested in serving a friend than in doing justice. As a whole, however, American courts are clean-handed throughout, and the people know it. The judiciary has been popularized in most States by constitutional provisions replacing tenure during good behavior by stated terms of years, and appointment by the Governor or legislature by election by the people. The powers of judges have been on the whole increased. The only matter in which they have been substantially cut down is that of punishment for contempt. Serious attempts have been made to abridge their jurisdiction over injunctions, but without success. These attacks have come from those representing certain labor unions. The more thorough organization of working-men in all trades and callings during the last half century, and the development of collectivism as a working theory, have produced a class of leaders among them who regard the courts as manned by representatives of capital and controlled in the interests of capital.[Footnote: The number of the _Pennsylvania Grange News_ for Sept., 1904, states this view at length.] As a judicial office can only be properly filled by one who has had a legal education and as, aside from a few petty magistrates and local tribunals, practically all our judges are trained lawyers, it necessarily follows that they cannot belong to the class of working-men in the general acceptation of that term. Their education has cost money and is generally the fruit of capital. The judges of the higher courts are usually men of some means. If they were not, they could not have afforded to accept their places. But the people at large do not believe that only the poor man can be relied on to deal justly on the bench. The mass of working-men do not believe it. They do believe that courts have too much power over them in their associated relations. They are in favor of cutting off the right of issuing injunctions to suppress boycotts or "picketing" in case of strikes. But they know that it is from the legislatures and not from the courts that this must be sought. The federal judges stand higher in public estimation than the State judges of corresponding rank. This is partly on account of the paramount authority of the government which they represent. It is partly also because there are none of them who occupy the lower grades of judicial station with a petty jurisdiction over petty controversies. It is more because of their permanence of tenure. This removes them from that field of criticism which surrounds every public officer who holds for a term limited in duration, and is always in the position of a candidate for re-appointment. Our methods of judicial appointment are not such as always to exclude political feeling from the bench either of the States or of the United States, but the people know that there is less of it there than in any other department of governmental action. President Hadley of Yale University has thus expressed what is the general view of the work of the courts held by thoughtful men in the United States; and it is they who in the long run form and lead public opinion. "On the whole, federal and State courts alike have been not only a protection, but the one really efficient protection of minority interests against oppression by the majority.... It has more than once happened that an impatient majority has denounced these courts as instruments of partisanship. The anti-slavery leaders, the soft money leaders, and the labor leaders have in turn taken exception to their utterances, and even ventured to impugn their motives. But I think that most intelligent men who know the history of the country will say that our courts have been the real bulwarks of American liberty; and that while Hamilton and his associates would be somewhat disappointed in the working of the machinery of legislation and administration if they could see it in its present shape, they would be filled with admiration at the work which has been accomplished by the judiciary. I believe it to be the judgment of sober-minded men that the courts have furnished the agency which has guarded us against excesses, and have saved the American republic from the necessity of repeating the successive revolutionary experiences which France underwent before she could attain to a stable democracy."[Footnote: "Freedom and Responsibility," 23, 24.] This confidence in and respect for the judiciary as a whole has increased with the general advance of the country in population and wealth. There have been larger questions with which to deal, and the courts have been found adequate to the task. But at the same time the personal consequence and reputation of every individual American judge has been steadily decreasing. As States multiply and the range of litigation widens, the work of judicial exposition of legal principles comes to be shared by so many hands that what any one man does is of comparatively small account. There is no room for star players upon the stage. Broad as it is, it is too crowded for one to make a conspicuous place for himself and stand as Marshall or Story, Kent or Parsons, did, apart from his fellows. Popular confidence is now not placed in courts because this or that man is the ruling spirit in them. It is impersonal and attaches itself to the institution of the judiciary as, all things considered, the best guaranty of good government in the United States. This spirit of confidence is, of course, not universal and unqualified. It is often not found in bodies of working men, associated as Labor Unions. They have repeatedly found a court enforcing public order in a way that interfered with their manner of conducting a strike. They have been met by injunctions, and more often by criminal prosecutions. The membership of a Labor Union, in many parts of the country, is apt to be largely of foreign birth. The leaders not infrequently know little of the English language and less of American institutions. They have been led, in their native land, to regard the law and its officers as their enemies, and they look at them in the same way here. It is believed, however, that a large majority of the Unions regard them with respect, and it is certain that such is the prevailing feeling of non-union men. But that the public trust in our judges is less than it was when the first edition of this work was published,[Footnote: See _supra_, page 340.] is indicated by the favor with which, in many quarters, the doctrine of the "judicial recall" has been received. The dangers incident to its practice are obvious, and seem far to outweigh any attending advantages. In the United States, of all lands on the face of the earth, it is important that the judges should act with resolution and without thought of the consequences personal to themselves. Elsewhere in form, but here only in fact, are judges armed with the power of declaring legislative action void which is in conflict with a higher form of law, that proceeded directly from the people, and mainly from the people of a former generation. To expose one who exercises this power to immediate displacement, by a popular vote--largely, perhaps, composed of his political opponents--is to invite the enactment of questionable statutes, and still worse--to weaken the attractions of the bench for able and honest men. Our judicial terms, in most of the States, are already too brief for the public good. To make them determinable at the will of the electoral constituency tends powerfully to keep good lawyers at the bar, who might otherwise have done honor to a judicial station. 
41095	----	The Journal of the Debates in the Convention Which Framed The Constitution of the United States May-September, 1787 As Recorded by James Madison Edited by Gaillard Hunt In Two Volumes Volume II. G. P. Putnam's Sons New York and London =The Knickerbocker Press= 1908 =The Knickerbocker Press, New York= CONTENTS OF VOLUME II. PAGE Chronology vii Journal of the Constitutional Convention 1 Index 417 * * * * * FAC-SIMILE. FACING PAGE First Page of the Constitution, reduced 414 CHRONOLOGY OF JAMES MADISON. 1787. * * * * * 1787 July 19. Advocates election of the Executive by the people. July 20. Speaks in favor of making the Executive impeachable. July 21. Seconds proposition to include the Judiciary with the Executive in power to revise laws. Moves that judges be appointed by the Executive with concurrence of two-thirds of Senate. July 25. Shows the difficulty of devising satisfactory mode of selecting Executive. August 7. Advocates liberal suffrage. August 8. Moves that basis of representation in House of Representatives be one to not more than 40,000 inhabitants. Opposes proposition that money bills originate only in House of Representatives. August 9. Opposes incorporation in constitution of provision against persons of foreign birth holding office. August 10. Moves that legislature have power to compel attendance of members. August 11. Moves that Congress publish its journals, except such parts of Senate proceedings as may be ordered kept secret. Advocates a centrally located capital. August 13. Seconds motion in favor of liberal treatment of foreigners. Speaks in favor of participation of Senate in making appropriations. August 15. Moves that all bills be passed upon by the Executive and Judiciary before becoming laws. August 16. Advocates national power to tax exports. August 17. Moves that legislature have power to declare war. August 18. Submits propositions for national power over public lands, to form governments for new States, over Indian affairs, over seat of government, to grant charters of incorporation, copyrights, to establish a university, grant patents, acquire forts, magazines, etc. Speaks in favor of national control of militia. August 22. Appointed on committee to consider navigation acts. Moves that States have power to appoint militia officers under rank of general officers. Moves to commit question of negative of State laws. Moves to include the Executive in treaty-making power. August 25. Declares it is wrong to admit the idea of property in men in constitution. August 27. Suggests that in case of death of President his council may act. Moves form of oath for President. Moves that judges' salaries be fixed. Expresses doubt whether Judiciary should have power over cases arising under constitution. August 28. Moves that States be forbidden to lay embargoes, export and import duties. August 29. Speaks in favor of navigation acts. August 31. Moves that ratification of constitution be by a majority of States and people. Advocates ratification by State conventions. Appointed on committee to consider parts of constitution and propositions not yet acted upon. Sept 3. Thinks eventual election of President by legislature should be made difficult. Sept 7. Moves that Senate have power to make treaties of peace without President. Sept 8. Moves that quorum of Senate be two-thirds of all the members. Seconds motion to increase representation. Sept 14. Suggests that legislature should have power to grant charters of incorporation. Sept 17. Signs constitution. JOURNAL OF THE CONSTITUTIONAL CONVENTION OF 1787. THURSDAY JULY 19. IN CONVENTION. On reconsideration of the vote rendering the Executive re-eligible a 2^d time, M^r Martin moved to re-instate the words, "to be ineligible a 2^d time." M^r Governeur Morris. It is necessary to take into one view all that relates to the establishment of the Executive; on the due formation of which must depend the efficacy & utility of the Union among the present and future States. It has been a maxim in Political Science that Republican Government is not adapted to a large extent of Country, because the energy of the Executive Magistracy can not reach the extreme parts of it. Our Country is an extensive one. We must either then renounce the blessings of the Union, or provide an Executive with sufficient vigor to pervade every part of it. This subject was of so much importance that he hoped to be indulged in an extensive view of it. One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize & perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, ag^{st} Legislative tyranny, against the Great & the wealthy who in the course of things will necessarily compose the Legislative body. Wealth tends to corrupt the mind to nourish its love of power, and to stimulate it to oppression. History proves this to be the spirit of the opulent. The check provided in the 2^d branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1^{st} branch to legislate too much to run into projects of paper money & similar expedients. It is no check on Legislative tyranny. On the contrary it may favor it, and if the 1^{st} branch can be seduced may find the means of success. The Executive therefore ought to be so constituted as to be the great protector of the Mass of the people.--It is the duty of the Executive to appoint the officers & to command the forces of the Republic: to appoint 1. ministerial officers for the administration of public affairs. 2. officers for the dispensation of Justice. Who will be the best Judges whether these appointments be well made? The people at large, who will know, will see, will feel the effects of them. Again who can judge so well of the discharge of military duties for the protection & security of the people, as the people themselves who are to be protected & secured? He finds too that the Executive is not to be re-eligible. What effect will this have? 1. it will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. It may give a dangerous turn to one of the strongest passions in the human breast. The love of fame is the great spring to noble & illustrious actions. Shut the Civil road to Glory & he may be compelled to seek it by the sword. 2. It will tempt him to make the most of the short space of time allotted him, to accumulate wealth and provide for his friends. 3. It will produce violations of the very constitution it is meant to secure. In moments of pressing danger the tried abilities and established character of a favorite magistrate will prevail over respect for the forms of the Constitution. The Executive is also to be impeachable. This is a dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the Legislature. These then are the faults of the Executive establishment as now proposed. Can no better establish^t be devised? If he is to be the Guardian of the people let him be appointed by the people? If he is to be a check on the Legislature let him not be impeachable. Let him be of short duration, that he may with propriety be re-eligible. It has been said that the candidates for this office will not be known to the people. If they be known to the Legislature, they must have such a notoriety and eminence of Character, that they cannot possibly be unknown to the people at large. It cannot be possible that a man shall have sufficiently distinguished himself to merit this high trust without having his character proclaimed by fame throughout the Empire. As to the danger from an Unimpeachable magistrate he could not regard it as formidable. There must be certain great Officers of State; a minister of finance, of war, of foreign affairs &c. These he presumes will exercise their functions in subordination to the Executive, and will be amenable by impeachment to the Public Justice. Without these ministers the Executive can do nothing of consequence. He suggested a biennial election of the Executive at the time of electing the 1^{st} branch, and the Executive to hold over, so as to prevent any interregnum in the administration. An election by the people at large throughout so great an extent of country could not be influenced by those little combinations and those momentary lies, which often decide popular elections within a narrow sphere. It will probably, be objected that the election will be influenced by the members of the Legislature; particularly of the 1^{st} branch, and that it will be nearly the same thing with an election by the Legislature itself. It could not be denied that such an influence would exist. But it might be answered that as the Legislature or the candidates for it would be divided, the enmity of one part would counteract the friendship of another; that if the administration of the Executive were good, it would be unpopular to oppose his re-election, if bad it ought to be opposed & a reappointm^t prevented; and lastly that in every view this indirect dependence on the favor of the Legislature could not be so mischievous as a direct dependence for his appointment. He saw no alternative for making the Executive independent of the Legislature but either to give him his office for life, or make him eligible by the people. Again, it might be objected that two years would be too short a duration. But he believes that as long as he should behave himself well, he would be continued in his place. The extent of the Country would secure his re-election ag^{st} the factions & discontents of particular States. It deserved consideration also that such an ingredient in the plan would render it extremely palatable to the people. These were the general ideas which occurred to him on the subject, and which led him to wish & move that the whole constitution of the Executive might undergo reconsideration. M^r Randolph urged the motion of M^r L. Martin for restoring the words making the Executive ineligible a 2^d time. If he ought to be independent, he should not be left under a temptation to court a re-appointment. If he should be re-appointable by the Legislature, he will be no check on it. His revisionary power will be of no avail. He had always thought & contended as he still did that the danger apprehended by the little States was chimerical; but those who thought otherwise ought to be peculiarly anxious for the motion. If the Executive be appointed, as has been determined, by the Legislature, he will probably be appointed either by joint ballot of both houses, or be nominated by the 1^{st} and appointed by the 2^d branch. In either case the large States will preponderate. If he is to court the same influence for his re-appointment, will he not make his revisionary power, and all the other functions of his administration subservient to the views of the large States. Besides, is there not great reason to apprehend that in case he should be re-eligible, a false complaisance in the Legislature might lead them to continue an unfit man in office in preference to a fit one. It has been said that a constitutional bar to re-appointment will inspire unconstitutional endeavours to perpetuate himself. It may be answered that his endeavours can have no effect unless the people be corrupt to such a degree as to render all precautions hopeless; to which may be added that this argument supposes him to be more powerful & dangerous, than other arguments which have been used, admit, and consequently calls for stronger fetters on his authority. He thought an election by the Legislature with an incapacity to be elected a second time would be more acceptable to the people than the plan suggested by M^r Gov^r Morris. M^r King did not like the ineligibility. He thought there was great force in the remark of M^r Sherman, that he who has proved himself most fit for an Office, ought not to be excluded by the constitution from holding it. He would therefore prefer any other reasonable plan that could be substituted. He was much disposed to think that in such cases the people at large would chuse wisely. There was indeed some difficulty arising from the improbability of a general concurrence of the people in favor of any one man. On the whole he was of opinion that an appointment by electors chosen by the people for the purpose, would be liable to fewest objections. M^r Patterson's ideas nearly coincided he said with those of M^r King. He proposed that the Executive should be appointed by Electors to be chosen by the States in a ratio that would allow one elector to the smallest and three to the largest States. M^r Wilson. It seems to be the unanimous sense that the Executive should not be appointed by the Legislature, unless he be rendered in-eligible a 2^d time: he perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people. M^r Madison. If it be a fundamental principle of free Gov^t that the Legislative, Executive & Judiciary powers should be _separately_ exercised, it is equally so that they be _independently_ exercised. There is the same & perhaps greater reason why the Executive sh^d be independent of the Legislature, than why the Judiciary should. A coalition of the two former powers would be more immediately & certainly dangerous to public liberty. It is essential then that the appointment of the Executive should either be drawn from some source, or held by some tenure that will give him a free agency with regard to the Legislature. This could not be if he was to be appointable from time to time by the Legislature. It was not clear that an appointment in the 1^{st} instance even with an ineligibility afterwards would not establish an improper connection between the two departments. Certain it was that the appointment would be attended with intrigues and contentions that ought not to be unnecessarily admitted. He was disposed for these reasons to refer the appointment to some other source. The people at large was in his opinion the fittest in itself. It would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem. There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections. M^r Gerry. If the Executive is to be elected by the Legislature he certainly ought not to be re-eligible. This would make him absolutely dependent. He was ag^{st} a popular election. The people are uninformed, and would be misled by a few designing men. He urged the expediency of an appointment of the Executive by Electors to be chosen by the State Executives. The people of the States will then choose the 1^{st} branch; the legislatures of the States the 2^d branch of the National Legislature, and the Executives of the States, the National Executive. This he thought would form a strong attachm^t in the States to the National System. The popular mode of electing the chief Magistrate would certainly be the worst of all. If he should be so elected & should do his duty, he will be turned out for it like Gov^r Bowdoin in Mass^{ts} & President Sullivan in N. Hampshire. On the question on M^r Gov^r Morris motion to reconsider generally the Constitution of the Executive Mas. ay. C^t ay. N. J. ay. & all the others ay. M^r Elseworth moved to strike out the appointm^t by the Nat^l Legislature, and to insert, to be chosen by electors appointed by the Legislatures of the States in the following ratio; to wit--one for each State not exceeding 200,000[1] inhab^{ts} two for each above y^t number & not exceeding 300,000. and three for each State exceeding 300,000.--M^r Broome 2^{ded}. the motion.[2] [1] The Journal gives it 100,000.--_Journal of the Federal Convention_, 190. [2] "Mr. Broom is a plain good Man, with some abilities, but nothing to render him conspicuous. He is silent in public, but chearful and conversable in private. He is about 35 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 330. M^r Rutlidge was opposed to all the modes, except the appointm^t by the Nat^l Legislature. He will be sufficiently independent, if he be not re-eligible. M^r Gerry preferred the motion of M^r Elseworth to an appointm^t by the Nat^l Legislature, or by the people; tho' not to an app^t by the State Executives. He moved that the electors proposed by M^r E. should be 25 in number, and allotted in the following proportion. to N. H. 1. to Mas. 3. to R. I. 1. to Con^t 2. to N. Y. 2. N. J. 2. P^a 3. Del. 1. M^d 2. V^a 3. N. C. 2. S. C. 2. Geo. 1. The question as moved by M^r Elseworth being divided, on the 1^{st} part shall y^e Nat^l Executive be appointed by Electors? Mas. div^d. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. On 2^d part shall the Electors be chosen by the State Legislatures? Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. ay. The part relating to the ratio in which the States s^d chuse electors was postponed nem. con. M^r L. Martin moved that the Executive be ineligible a 2^d time. M^r Williamson, 2^{ds} the motion. He had no great confidence in Electors to be chosen for the special purpose. They would not be the most respectable citizens; but persons not occupied in the high offices of Gov^t. They would be liable to undue influence, which might the more readily be practised as some of them will probably be in appointment 6 or 8 months before the object of it comes on. M^r Elseworth supposed any persons might be appointed Electors, excepting, solely, members of the Nat^l Legislature. On the question Shall he be ineligible a 2^d time? Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no. On the question Shall the Executive continue for 7 years? It passed in the negative Mas. div^d. Con^t ay.[3] N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. div^d. S. C. ay. Geo. ay. [3] In the printed Journal Con^t, no: N. Jersey ay.--Madison's Note. M^r King was afraid we sh^d shorten the term too much. M^r Gov^r Morris was for a short term, in order to avoid impeach^{ts} which w^d be otherwise necessary. M^r Butler was ag^{st} the frequency of the elections. Geo. & S. C. were too distant to send electors often. M^r Elseworth was for 6 years. If the elections be too frequent, the Executive will not be firm eno. There must be duties which will make him unpopular for the moment. There will be _outs_ as well as _ins_. His administration therefore will be attacked and misrepresented. M^r Williamson was for 6 years. The expence will be considerable & ought not to be unnecessarily repeated. If the Elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted. On the question for 6 years? Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. Adjourned FRIDAY JULY 20. IN CONVENTION. The postponed Ratio of Electors for appointing the Executive; to wit 1 for each State whose inhabitants do not exceed 100.000. &c. being taken up. M^r Madison observed that this would make in time all or nearly all the States equal. Since there were few that would not in time contain the number of inhabitants intitling them to 3 Electors; that this ratio ought either to be made temporary, or so varied as that it would adjust itself to the growing population of the States. M^r Gerry moved that in the _1^{st} instance_ the Electors should be allotted to the States in the following ratio: to N. H. 1. Mass. 3. R. I. 1. Con^t 2. N. Y. 2. N. J. 2. P^a 3. Del. 1. M^d 2. V^a 3. N. C. 2. S. C. 2. Geo. 1. On the question to postpone in order to take up this motion of M^r Gerry. It passed in the affirmative Mass. ay. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Elseworth moved that 2 Electors be allotted to N. H. Some rule ought to be pursued; and N. H. has more than 100,000 inhabitants. He thought it would be proper also to allot 2. to Georgia. M^r Broom & M^r Martin moved to postpone M^r Gerry's allotment of Electors, leaving a fit ratio to be reported by the Committee to be appointed for detailing the Resolutions. On this motion, Mass. no. C^t no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. M^r Houston 2^{ded} the motion of M^r Elseworth to add another Elector to N. H. & Georgia. On the Question; Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. M^r Williamson moved as an amendment to M^r Gerry's allotment of Electors in the 1^{st} instance that in future elections of the Nat^l Executive, the number of Electors to be appointed by the several States shall be regulated by their respective numbers of Representatives in the 1^{st} branch pursuing as nearly as may be the present proportions. On question on M^r Gerry's ratio of Electors Mass. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no. "to be removable on impeachment and conviction for malpractice or neglect of duty," see Resol. 9. M^r Pinkney & M^r Gov^r Morris moved to strike out this part of the Resolution. M^r P. observ^d he ought not to be impeachable whilst in office. M^r Davie. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this as an essential security for the good behaviour of the Executive. M^r Wilson concurred in the necessity of making the Executive impeachable whilst in office. M^r Gov^r Morris. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be a sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach. Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate & difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Nat^l Legislature. One objection ag^{st} Electors was the danger of their being corrupted by the Candidates, & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt? Doc^r Franklin was for retaining the clause as favorable to the Executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out ag^{st} this as unconstitutional. What was the practice before this in cases where the Chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in w^{ch} he was not only deprived of his life but of the opportunity of vindicating his character. It w^d be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal where he should be unjustly accused. M^r Gov^r Morris admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined. M^r Madison thought it indispensable that some provision should be made for defending the Community ag^{st} the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the Public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic. M^r Pinkney did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant. M^r Gerry urged the necessity of impeachments. A good Magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the chief magistrate could do no wrong. M^r King expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Gov^{ts} should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a form should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature. Like them, particularly the Senate whose members would continue in appointm^t the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties. M^r Randolph. The propriety of impeachments was a favorite principle with him. Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the Public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen (from Col. Hamilton) of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just ground of impeachment existed. Doct^r Franklin mentioned the case of the Prince of Orange during the late war. An agreement was made between France & Holland; by which their two fleets were to unite at a certain time & place. The Dutch fleet did not appear. Every body began to wonder at it. At length it was suspected that the Statholder was at the bottom of the matter. This suspicion prevailed more & more. Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengthening his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities & contentions. Had he been impeachable, a regular & peaceable enquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the Public. M^r King remarked that the case of the Statholder was not applicable. He held his place for life, and was not periodically elected. In the former case impeachments are proper to secure good behaviour. In the latter they are unnecessary; the periodical responsibility to the electors being an equivalent security. M^r Wilson observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive, ought to be subject to impeachment & removal. M^r Pinkney apprehended that some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him: He presumed that his powers would be so circumscribed as to render impeachments unnecessary. M^r Gov^r Morris's opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any length of time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard ag^{st} it by displacing him. One would think the King of England well secured ag^{st} bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II. was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery: Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature. It was moved & 2^{ded} to postpone the question of impeachments which was negatived, Mas. & S. Carolina only being ay. On y^e Question, Shall the Executive be removable on impeachments &c.? Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. "Executive to receive fixed compensation." Agreed to nem. con. "to be paid out of the national Treasury" agreed to, N. Jersey only in the negative. M^r Gerry & Gov^r Morris moved that the Electors of the Executive shall not be members of the Nat^l Legislature, nor officers of the U. States, nor shall the Electors themselves be eligible to the supreme magistracy. Agreed to nem. con. Doc^r McClurg[4] asked whether it would not be necessary, before a Committee for detailing the Constitution should be appointed, to determine on the means by which the Executive, is to carry the laws into effect, and to resist combinations ag^{st} them. Is he to have a military force for the purpose, or to have the command of the Militia, the only existing force that can be applied to that use? As the Resolutions now stand the Committee will have no determinate directions on this great point. [4] "Mr. McClurg is a learned physician, but having never appeared before in public life his character as a politician is not sufficiently known. He attempted once or twice to speak, but with no great success. It is certain that he has a foundation of learning, on which, if he pleases, he may erect a character of high renown. The Doctor is about 38 years of age, a Gentleman of great respectability, and of a fair and unblemished character."--Pierce's Notes, _Am. Hist. Rev._, iii., 332. M^r Wilson thought that some additional directions to the Committee w^d be necessary. M^r King. The Committee are to provide for the end. Their discretionary power to provide for the means is involved according to an established axiom. Adjourned. SATURDAY JULY 21 IN CONVENTION M^r Williamson moved that the Electors of the Executive should be paid out of the National Treasury for the Service to be performed by them. Justice required this: as it was a national service they were to render. The motion was agreed to Nem. Con. M^r Wilson moved as an amendment to Resol^n 10. that the supreme Nat^l Judiciary should be associated with the Executive in the Revisionary power. This proposition had been before made and failed: but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort: The Judiciary ought to have an opportunity of remonstrating ag^{st} projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.--M^r Madison 2^{ded} the motion. M^r Ghorum did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Nor can it be necessary as a security for their constitutional rights. The Judges in England have no such additional provision for their defence, yet their jurisdiction is not invaded. He thought it would be best to let the Executive alone be responsible, and at most to authorize him to call on Judges for their opinions. M^r Elseworth approved heartily of the motion. The aid of the Judges will give more wisdom & firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive cannot be expected always to possess. The Law of Nations also will frequently come into question. Of this the Judges alone will have competent information. M^r Madison considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the Judiciary departm^t by giving it an additional opportunity of defending itself ag^{st} Legislative encroachments: It would be useful to the Executive, by inspiring additional confidence & firmness in exerting the revisionary power: It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican Codes. It would moreover be useful to the Community at large as an additional check ag^{st} a pursuit of those unwise & unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged ag^{st} the motion, it must be on the supposition that it tended to give too much strength either to the Executive or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with Republican principles. M^r Mason said he had always been a friend to this provision. It would give a confidence to the Executive, which he would not otherwise have, and without which the Revisionary power would be of little avail. M^r Gerry did not expect to see this point which had undergone full discussion, again revived. The object he conceived of the Revisionary power was merely to secure the Executive department ag^{st} legislative encroachment. The Executive therefore who will best know and be ready to defend his rights ought alone to have the defence of them. The motion was liable to strong objections. It was combining & mixing together the Legislative & the other departments. It was establishing an improper coalition between the Executive & Judiciary departments. It was making statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights & interests. It was making the Expositors of the Laws, the Legislators which ought never to be done. A better expedient for correcting the laws, would be to appoint as had been done in Pen^a, a person or persons of proper skill, to draw bills for the Legislature. M^r Strong thought with M^r Gerry that the power of making ought to be kept distinct from that of expounding, the laws. No maxim was better established. The Judges in exercising the function of expositors might be influenced by the part they had taken in framing the laws. M^r Gov^r Morris. Some check being necessary on the Legislature, the question is in what hands it should be lodged. On one side it was contended that the Executive alone ought to exercise it. He did not think that an Executive appointed for 6 years, and impeachable whilst in office w^d be a very effectual check. On the other side it was urged that he ought to be reinforced by the Judiciary department. Ag^{st} this it was objected that Expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from England. What weight was due to them might be easily determined by an attention to facts. The truth was that the Judges in England had a great share in y^e Legislation. They are consulted in difficult & doubtful cases. They may be & some of them are members of the Legislature. They are or may be members of the privy Council, and can there advise the Executive as they will do with us if the motion succeeds. The influence the English Judges may have in the latter capacity in strengthening the Executive check can not be ascertained, as the King by his influence in a manner dictates the laws. There is one difference in the two cases however which disconcerts all reasoning from the British to our proposed Constitution. The British Executive has so great an interest in his prerogatives and such powerful means of defending them that he will never yield any part of them. The interest of our Executive is so inconsiderable & so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting incroachments. He was extremely apprehensive that the auxiliary firmness & weight of the Judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from Legislative usurpations than from any other source. It had been said that the Legislature ought to be relied on as the proper Guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. On the latter supposition no check will be wanted. On the former a strong check will be necessary: and this is the proper supposition. Emissions of paper money, largesses to the people--a remission of debts and similar measures, will at some times be popular, and will be pushed for that reason. At other times such measures will coincide with the interests of the Legislature themselves, & that will be a reason not less cogent for pushing them. It may be thought that the people will not be deluded and misled in the latter case. But experience teaches another lesson. The press is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether. M^r L. Martin, considered the association of the Judges with the Executive as a dangerous innovation; as well as one which could not produce the particular advantage expected from it. A knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature. And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating ag^{st} popular measures of the Legislature. Besides in what mode & proportion are they to vote in the Council of Revision? M^r Madison could not discover in the proposed association of the Judges with the Executive in the Revisionary check on the Legislature any violation of the maxim which requires the great departments of power to be kept separate & distinct. On the contrary he thought it an auxiliary precaution in favor of the maxim. If a Constitutional discrimination of the departments on paper were a sufficient security to each ag^{st} encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the Theory in the Constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the Theory in practice. In so doing we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British Constitution. Yet it was not only the practice there to admit the Judges to a seat in the legislature, and in the Executive Councils, and to submit to their previous examination all laws of a certain description, but it was a part of their Constitution that the Executive might negative any law whatever; a part of _their_ Constitution which had been universally regarded as calculated for the preservation of the whole. The objection ag^{st} a union of the Judiciary & Executive branches in the revision of the laws, had either no foundation or was not carried far enough. If such a Union was an improper mixture of powers, or such a Judiciary check on the laws, was inconsistent with the Theory of a free Constitution, it was equally so to admit the Executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether. Col. Mason observed that the defence of the Executive was not the sole object of the Revisionary power. He expected even greater advantages from it. Notwithstanding the precautions taken in the Constitution of the Legislature, it would still so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect not only of hindering the final passage of such laws; but would discourage demagogues from attempting to get them passed. It has been said (by M^r L. Martin) that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in preventing every improper law. Their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences. M^r Wilson. The separation of the departments does not require that they should have separate objects but that they should act separately tho' on the same objects. It is necessary that the two branches of the Legislature should be separate and distinct, yet they are both to act precisely on the same object. M^r Gerry had rather give the Executive an absolute negative for its own defence than thus to blend together the Judiciary & Executive departments. It will bind them together in an offensive and defensive alliance ag^{st} the Legislature, and render the latter unwilling to enter into a contest with them. M^r Gov^r Morris was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. Suppose that the three powers, were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws. Would it not be very natural for the two latter after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that as a security ag^{st} legislative acts of the former which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence, or at least to have an opportunity of stating their objections ag^{st} acts of encroachment? And would any one pretend that such a right tended to blend & confound powers that ought to be separately exercised? As well might it be said that If three neighbours had three distinct farms, a right in each to defend his farm ag^{st} his neighbours, tended to blend the farms together. M^r Ghorum. All agree that a check on the Legislature is necessary. But there are two objections ag^{st} admitting the Judges to share in it which no observations on the other side seem to obviate, the 1^{st} is that the Judges ought to carry into the exposition of the laws no prepossessions with regard to them. 2^d that as the Judges will outnumber the Executive, the revisionary check would be thrown entirely out of the Executive hands, and instead of enabling him to defend himself, would enable the Judges to sacrifice him. M^r Wilson. The proposition is certainly not liable to all the objections which have been urged ag^{st} it. According (to M^r Gerry) it will unite the Executive & Judiciary in an offensive & defensive alliance ag^{st} the Legislature. According to M^r Ghorum it will lead to a subversion of the Executive by the Judiciary influence. To the first gentleman the answer was obvious: that the joint weight of the two departments was necessary to balance the single weight of the Legislature. To the 1^{st} objection stated by the other Gentleman it might be answered that supposing the prepossession to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient. To the 2^d objection, that such a rule of voting might be provided in the detail as would guard ag^{st} it. M^r Rutlidge thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them. He thought it equally unnecessary. The Executive could advise with the officers of State, as of war, finance &c. and avail himself of their information & opinions. On Question on M^r Wilson's motion for joining the Judiciary in the Revision of laws it passed in the negative-- Mass. no. Con^t ay. N. J. not present. P^a div^d. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. div^d. Resol. 10, giving the Ex a qualified veto, without the amend^t was then ag^d to nem. con. The motion made by M^r Madison July 18. & then postponed, "that the Judges sh^d be nominated by the Executive & such nominations become appointments unless disagreed to by 2/3 of the 2^d branch of the Legislature," was now resumed. M^r Madison stated as his reasons for the motion, 1. that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2^d b. of it, who might hide their selfish motives under the number concerned in the appointment. 2. that in case of any flagrant partiality or error, in the nomination it might be fairly presumed that 2/3 of the 2^d branch would join in putting a negative on it. 3. that as the 2^d b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that there sh^d be a concurrence of two authorities, in one of which the people, in the other the States should be represented. The Executive Magistrate w^d be considered as a national officer, acting for and equally sympathizing with every part of the U. States. If the 2^d branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of y^e Northern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States. M^r Pinkney was for placing the appointm^t in the 2^d b. exclusively. The Executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust. M^r Randolph w^d have preferred the mode of appointm^t proposed formerly by M^r Ghorum, as adopted in the Constitution of Mass^{ts} but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniences will proportionally prevail if the appointments be referred to either branch of the Legislature or to any other authority administered by a number of individuals. M^r Elseworth would prefer a negative in the Executive on a nomination by the 2^d branch, the negative to be overruled by a concurrence of 2/3 of the 2^d b. to the mode proposed by the motion; but preferred an absolute appointment by the 2^d branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses & intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment. M^r Gov^r Morris supported the motion. 1. The States in their corporate capacity will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote the Judges ought not to be appointed by the Senate. Next to the impropriety of being Judge in one's own cause, is the appointment of the Judge. 2. It had been said the Executive would be uninformed of characters. The reverse was y^e truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the U. S. required by the nature of his administration, will or may have the best possible information. 3. It had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of Jealousy in the present case. He added that if the Objections ag^{st} an appointment of the Executive by the Legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the Judges by the Legislature or by any part of it. M^r Gerry. The appointment of the Judges like every other part of the Constitution sh^d be so modelled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters throughout the Union, as the Senate. It appeared to him also a strong objection that 2/3 of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress. And the appointments of Congress have been generally good. M^r Madison, observed that he was not anxious that 2/3 should be necessary to disagree to a nomination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject. Col. Mason found it his duty to differ from his colleagues in their opinions & reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was Substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate & require some precautions in the case of regulating navigation, commerce & imposts; but he could not see that it had any connection with the Judiciary department. On the question, the motion now being "that the executive should nominate & such nominations should become appointments unless disagreed to by the Senate" Mass. ay. C^t no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. On question for agreeing to the clause as it stands by which the Judges are to be appointed by the 2^d branch Mass. no. C^t ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay. Adjourned. MONDAY JULY 23. IN CONVENTION M^r John Langdon & M^r Nicholas Gilman[5] from N. Hampshire,[6] took their seats. [5] M^r Gilman is modest, genteel, and sensible. There is nothing brilliant or striking in his character, but there is something respectable and worthy in the man.--About 30 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 325. He did not speak in the convention. [6] The act appointing deputies to the convention was not passed by the New Hampshire Legislature till June 27, 1787.--_Journal of Federal Convention_, 17. Resol:^n 17. that provision ought to be made for future amendments of the Articles of Union, agreed to, nem. con. Resol^n 18. "requiring the Legis: Execut: & Jud^y of the States to be bound by oath to support the articles of Union," taken into consideration. M^r Williamson suggests that a reciprocal oath should be required from the National officers, to support the Governments of the States. M^r Gerry moved to insert as an amendm^t that the oath of the officers of the National Government also should extend to the support of the Nat^l Gov^t which was agreed to nem. con. M^r Wilson said he was never fond of oaths, considering them as a left handed security only. A good Gov^t did not need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of the existing Gov^t in case future alterations should be necessary; and prove an obstacle to Resol: 17. just ag^d to. M^r Ghorum did not know that oaths would be of much use; but could see no inconsistency between them and the 17. Resol. or any regular amend^t of the Constitution. The oath could only require fidelity to the existing Constitution. A constitutional alteration of the Constitution, could never be regarded as a breach of the Constitution, or of any oath to support it. M^r Gerry thought with M^r Ghorum there could be no shadow of inconsistency in the case. Nor could he see any other harm that could result from the Resolution. On the other side he thought one good effect would be produced by it. Hitherto the officers of the two Governments had considered them as distinct from, and not as parts of the General System, & had in all cases of interference given a preference to the State Gov^{ts}. The proposed oath will cure that error. The Resol^n (18) was agreed to nem. con. Resol: 19. referring the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying it was next taken into consideration. M^r Elseworth moved that it be referred to the Legislatures of the States for ratification. M^r Patterson 2^{ded} the motion. Col. Mason considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Gov^t would stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some weight. In some of the States the Gov^{ts} were not derived from the clear & undisputed authority of the people. This was the case in Virginia. Some of the best & wisest citizens considered the Constitution as established by an assumed authority. A national Constitution derived from such a source would be exposed to the severest criticisms. M^r Randolph. One idea has pervaded all our proceedings, to wit, that opposition as well from the States as from individuals, will be made to the System to be proposed. Will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. Added to other objections ag^{st} a ratification by the Legislative authority only, it may be remarked that there have been instances in which the authority of the Common law has been set up in particular States ag^{st} that of the Confederation which has had no higher sanction than Legislative ratification.--Whose opposition will be most likely to be excited ag^{st} the System? That of the local demagogues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the Convention. It is of great importance therefore that the consideration of this subject should be transferred from the Legislatures where this class of men, have their full influence to a field in which their efforts can be less mischievous. It is moreover worthy of consideration that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people. M^r Gerry. The arguments of Col. Mason & M^r Randolph prove too much. They prove an unconstitutionality in the present federal system & even in some of the State Gov^{ts}. Inferences drawn from such a source must be inadmissible. Both the State Gov^{ts} & the federal Gov^t have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The last article of it authorizing alterations must consequently be so as well as the others, and every thing done in pursuance of the article must have the same high authority with the article. Great confusion he was confident would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people. M^r Ghorum was ag^{st} referring the plan to the Legislatures. 1. Men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the Legislature who are to lose the power which is to be given up to the Gen^l Gov^t. 2. Some of the Legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the Legislatures, than thro' a Convention. 3. in the States many of the ablest men are excluded from the Legislatures, but may be elected into a convention. Among these may be ranked many of the Clergy who are generally friends to good Government. Their services were found to be valuable in the formation & establishment of the Constitution of Massach^{ts}. 4. the Legislatures will be interrupted with a variety of little business, by artfully pressing which designing men will find means to delay from year to year, if not to frustrate altogether the national system. 5. If the last art: of the Confederation is to be pursued the unanimous concurrence of the States will be necessary. But will any one say, that all the States are to suffer themselves to be ruined, if Rho. Island should persist in her opposition to general measures. Some other States might also tread in her steps. The present advantage which N. York seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable, that she will be of the number. It would therefore deserve serious consideration whether provision ought not to be made for giving effect to the System without waiting for the unanimous concurrence of the States. M^r Elseworth. If there be any Legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as w^d be competent. He thought more was to be expected from the Legislatures than from the people. The prevailing wish of the people in the Eastern States is to get rid of the public debt; and the idea of strengthening the Nat^l Gov^t carries with it that of strengthening the public debt. It was said by Col. Mason 1. that the Legislatures have no authority in this case. 2. that their successors having equal authority could rescind their acts. As to the 2^d point he could not admit it to be well founded. An Act to which the States by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the 1^{st} point, he observed that a new sett of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Cong^s applied on subsequent occasions for further powers? To the Legislatures; not to the people. The fact is that we exist at present, and we need not enquire how, as a federal Society, united by a charter one article of which is that alterations therein may be made by the Legislative authority of the States. It has been said that if the confederation is to be observed, the States must _unanimously_ concur in the proposed innovations. He would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures. M^r Williamson thought the Resol:^n (19) so expressed as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought too that Conventions were to be preferred as more likely to be composed of the ablest men in the States. M^r Gov^r Morris considered the inference of M^r Elseworth from the plea of necessity as applied to the establishment of a new System on y^e consent of the people of a part of the States, in favor of a like establishm^t on the consent of a part of the Legislatures, as a non sequitur. If the Confederation is to be pursued no alteration can be made without the unanimous consent of the Legislatures: Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void. Whereas in case of an appeal to the people of the U. S., the supreme authority, the federal compact may be altered by a _majority of them_; in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendm^t moved by M^r Elseworth erroneously supposes that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation. M^r King thought with M^r Elseworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation, being equivalent to a formal ratification by the people. He thought with M^r E. also that the plea of necessity was as valid in the one case as the other. At the same time he preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new Constitution; as well as the most likely means of drawing forth the best men in the States to decide on it. He remarked that among other objections made in the State of N. York to granting powers to Cong^s one had been that such powers as would operate within the State, could not be reconciled to the Constitution; and therefore were not grantible by the Legislative authority. He considered it as of some consequence also to get rid of the scruples which some members of the State Legislatures might derive from their oaths to support & maintain the existing Constitutions. M^r Madison thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a _league_ or _treaty_, and a _Constitution_. The former in point of _moral obligation_ might be as inviolable as the latter. In point of _political operation_, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it. On question on M^r Elseworth's motion to refer the plan to the Legislatures of the States N. H. no. Mass. no. C^t ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. M^r Gov^r Morris moved that the reference of the plan be made to one general Convention, chosen & authorized by the people to consider, _amend_, & establish the same.--Not seconded. On question for agreeing to Resolution 19. touching the mode of Ratification as reported from the Committee of the Whole; viz, to refer the Const^n, after the approbation of Cong^s to assemblies chosen by the people; N. H. ay. Mass. ay. C^t ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gov^r Morris & M^r King moved that the representation in the second branch consist of ---- members from each State, who shall vote per capita. M^r Elseworth said he had always approved of voting in that mode. M^r Gov^r Morris moved to fill the _blank_ with _three_. He wished the Senate to be a pretty numerous body. If two members only should be allowed to each State, and a majority be made a quorum, the power would be lodged in 14 members, which was too small a number for such a trust. M^r Ghorum preferred two to three members for the blank. A small number was most convenient for deciding on peace & war &c. which he expected would be vested in the 2^d branch. The number of States will also increase. Kentucky, Vermont, the Province of Mayne & Franklin will probably soon be added to the present number. He presumed also that some of the largest States would be divided. The strength of the General Gov^t will lie not in the largeness, but in the smallness of the States. Col. Mason thought 3 from each State including new States would make the 2^d branch too numerous. Besides other objections, the additional expence ought always to form one, where it was not absolutely necessary. M^r Williamson. If the number be too great, the distant States will not be on an equal footing with the nearer States. The latter can more easily send & support their ablest Citizens. He approved of the voting per capita. On the question for filling the blank with "_three_" N. H. no. Mass. no. Con^t no. P^a ay. Del. no. V^a no. N. C. no. S. C. no. Geo. no. On question for filling it with "two." Agreed to nem. con. M^r L Martin was opposed to voting per Capita, as departing from the idea of the _States_ being represented in the 2^d branch. M^r Carroll,[7] was not struck with any particular objection ag^{st} the mode; but he did not wish so hastily to make so material an innovation. [7] "Mr. Carrol is a Man of large fortune, and influence in his State. He possesses plain good sense, and is in the full confidence of his Countrymen. This Gentleman is about [blank] years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 330. On the question on the whole motion viz. the 2^d b. to consist of 2 members from each State and to vote per Capita, N. H. ay. Mass. ay. C^t ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Houston[8] & M^r Spaight moved "that the appointment of the Executive by Electors chosen by the Legislatures of the States, be reconsidered." M^r Houston urged the extreme inconveniency & the considerable expence, of drawing together men from all the States for the single purpose of electing the Chief Magistrate. [8] "Mr. Houston is an Attorney at Law, and has been Member of Congress for the State of Georgia. He is a Gentleman of Family, and was educated in England. As to his legal or political knowledge he has very little to boast of. Nature seems to have done more for his corporeal than mental powers. His Person is striking, but his mind very little improved with useful or elegant knowledge. He has none of the talents requisite for the Orator, but in public debate is confused and irregular. Mr. Houston is about 30 years of age of an amiable and sweet temper, and of good and honorable principles."--Pierce's Notes, _Am. Hist. Rev._, iii., 334. On the question which was put without any debate N. H. ay. Mass. ay. Ct. ay. P^a no. Del. ay. M^d no. Virg^a no. N. C. ay. S. C. ay. Geo. ay. Ordered that tomorrow be assigned for the reconsideration, Con^t & Pen^a no--all the rest ay. M^r Gerry moved that the proceedings of the Convention for the establishment of a Nat^l Gov^t (except the part relating to the Executive), be referred to a Committee to prepare & report a Constitution conformable thereto. Gen^l Pinkney reminded the Convention that if the Committee should fail to insert some security to the Southern States ag^{st} an emancipation of slaves, and taxes on exports, he sh^d be bound by duty to his State to vote ag^{st} their Report. The app^t of a Com^e as moved by M^r Gerry. Ag^d to nem. con. Shall the Com^e consist of 10 members one from each State pres^t--All the States were _no_, except Delaware, _ay_. Shall it consist of 7. members N. H. ay. Mas. ay. C^t ay. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. ay. Geo. no. The question being lost by an equal division of Votes. It was agreed, nem-con- that the Committee consist of 5 members to be appointed tomorrow. Adjourned. TUESDAY JULY 24. IN CONVENTION The appointment of the Executive by Electors reconsidered. M^r Houston moved that he be appointed by the "Nat^l Legislature," instead of "Electors appointed by the State Legislatures" according to the last decision of the mode. He dwelt chiefly on the improbability, that capable men would undertake the service of Electors from the more distant States. M^r Spaight seconded the motion. M^r Gerry opposed it. He thought there was no ground to apprehend the danger urged by M^r Houston. The election of the Executive Magistrate will be considered as of vast importance and will create great earnestness. The best men, the Governours of the States will not hold it derogatory from their character to be the electors. If the motion should be agreed to, it will be necessary to make the Executive ineligible a 2^d time, in order to render him independent of the Legislature; which was an idea extremely repugnant to his way of thinking. M^r Strong supposed that there would be no necessity, if the Executive should be appointed by the Legislature, to make him ineligible a 2^d time; as new elections of the Legislature will have intervened; and he will not depend for his 2^d appointment on the same sett of men as his first was rec^d from. It had been suggested that _gratitude_ for his past appointment w^d produce the same effect as dependence for his future appointment. He thought very differently. Besides this objection would lie ag^{st} the Electors who would be objects of gratitude as well as the Legislature. It was of great importance not to make the Gov^t too complex which would be the case if a new sett of men like the Electors should be introduced into it. He thought also that the first characters in the States would not feel sufficient motives to undertake the office of Electors. M^r Williamson was for going back to the original ground; to elect the Executive for 7 years and render him ineligible a 2^d time. The proposed Electors would certainly not be men of the 1^{st} nor even of the 2^d grade in the States. These would all prefer a seat either in the Senate or the other branch of the Legislature. He did not like the Unity in the Executive. He had wished the Executive power to be lodged in three men taken from three districts into which the States should be divided. As the Executive is to have a kind of veto on the laws, and there is an essential difference of interests between the N. & S. States, particularly in the carrying trade, the power will be dangerous, if the Executive is to be taken from part of the Union, to the part from which he is not taken. The case is different here from what it is in England; where there is a sameness of interests throughout the Kingdom. Another objection ag^{st} a single Magistrate is that he will be an elective King, and will feel the spirit of one. He will spare no pains to keep himself in for life, and will then lay a train for the succession of his children. It was pretty certain he thought that we should at some time or other have a King; but he wished no precaution to be omitted that might postpone the event as long as possible.--Ineligibility a 2^d time appeared to him to be the best precaution. With this precaution he had no objection to a longer term than 7 years. He would go as far as 10 or 12 years. M^r Gerry moved that the Legislatures of the States should vote by ballot for the Executive in the same proportions as it had been proposed they should chuse electors; and that in case a majority of the votes should not centre on the same person, the 1^{st} branch of the Nat^l Legislature should chuse two out of the 4 candidates having most votes, and out of these two, the 2^d branch should chuse the Executive. M^r King seconded the motion--and on the Question to postpone in order to take it into consideration. The _noes_ were so predominant, that the States were not counted. Question on M^r Houston's motion that the Executive be app^d by the Na^l Legislature. N. H. ay. Mass. ay. C^t no. N. J. ay. P^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. M^r L. Martin & M^r Gerry moved to re-instate the ineligibility of the Executive a 2^d time. M^r Elseworth. With many this appears a natural consequence of his being elected by the Legislature. It was not the case with him. The Executive he thought should be reelected if his conduct proved him worthy of it. And he will be more likely to render himself, worthy of it if he be rewardable with it. The most eminent characters also, will be more willing to accept the trust under this condition, than if they foresee a necessary degradation at a fixt period. M^r Gerry. That the Executive sh^d be independent of the Legislature is a clear point. The longer the duration of his appointment the more will his dependence be diminished. It will be better then for him to continue 10. 15. or even 20. years and be ineligible afterwards. M^r King was for making him re-eligible. This is too great an advantage to be given up for the small effect it will have on his dependence, if impeachments are to lie. He considered these as rendering the tenure during pleasure. M^r L. Martin, suspending his motion as to the ineligibility, moved "that the appointm^t of the Executive shall continue for Eleven years. M^r Gerry suggested fifteen years. M^r King twenty years. This is the medium life of princes.[9] [9] This might possibly be meant as a carricature of the previous motions in order to defeat the object of them.--Madison's Note. M^r Davie eight years. M^r Wilson. The difficulties & perplexities into which the House is thrown proceed from the election by the Legislature which he was sorry had been reinstated. The inconveniency of this mode was such that he would agree to almost any length of time in order to get rid of the dependence which must result from it. He was persuaded that the longest term would not be equivalent to a proper mode of election, unless indeed it should be during good behaviour. It seemed to be supposed that at a certain advance of life, a continuance in office would cease to be agreeable to the officer, as well as desirable to the public. Experience had shewn in a variety of instances that both a capacity & inclination for public service existed in very advanced stages. He mentioned the instance of a Doge of Venice who was elected after he was 80 years of age. The Popes have generally been elected at very advanced periods, and yet in no case had a more steady or a better concerted policy been pursued than in the Court of Rome. If the Executive should come into office at 35 years of age, which he presumes may happen & his continuance should be fixt at 15 years, at the age of 50. in the very prime of life, and with all the aid of experience, he must be cast aside like a useless hulk. What an irreparable loss would the British Jurisprudence have sustained, had the age of 50. been fixt there as the ultimate limit of capacity or readiness to serve the public. The great luminary (L^d Mansfield) held his seat for thirty years after his arrival at that age. Notwithstanding what had been done he could not but hope that a better mode of election would yet be adopted; and one that would be more agreeable to the general sense of the House. That time might be given for further deliberation he w^d move that the present question be postponed till tomorrow. M^r Broom seconded the motion to postpone. M^r Gerry. We seem to be entirely at a loss on this head. He would suggest whether it would not be advisable to refer the clause relating to the Executive to the Committee of detail to be appointed. Perhaps they will be able to hit on something that may unite the various opinions which have been thrown out. M^r Wilson. As the great difficulty seems to spring from the mode of election, he w^d suggest a mode which had not been mentioned. It was that the Executive be elected for 6 years by a small number, not more than 15 of the Nat^l Legislature, to be drawn from it, not by ballot, but by lot and who should retire immediately and make the election without separating. By this mode intrigue would be avoided in the first instance, and the dependence would be diminished. This was not he said a digested idea and might be liable to strong objections. M^r Gov^r Morris. Of all possible modes of appointment that by the Legislature is the worst. If the Legislature is to appoint, and to impeach or to influence the impeachment, the Executive will be the mere creature of it. He had been opposed to the impeachment but was now convinced that impeachments must be provided for, if the app^t was to be of any duration. No man w^d say, that an Executive known to be in the pay of an Enemy, should not be removable in some way or other. He had been charged heretofore (by Col. Mason) with inconsistency in pleading for confidence in the Legislature on some occasions, & urging a distrust on others. The charge was not well founded. The Legislature is worthy of unbounded confidence in some respects, and liable to equal distrust in others. When their interest coincides precisely with that of their Constituents, as happens in many of their Acts, no abuse of trust is to be apprehended. When a strong personal interest happens to be opposed to the general interest, the Legislature cannot be too much distrusted. In all public bodies there are two parties. The Executive will necessarily be more connected with one than with the other. There will be a personal interest therefore in one of the parties to oppose as well as in the other to support him. Much had been said of the intrigues, that will be practised by the Executive to get into office. Nothing had been said on the other side of the intrigues to get him out of office. Some leader of a party will always covet his seat, will perplex his administration, will cabal with the Legislature, till he succeeds in supplanting him. This was the way in which the King of England was got out, he meant the real King, the Minister. This was the way in which Pitt (L^d Chatham) forced himself into place. Fox was for pushing the matter still farther. If he had carried his India bill, which he was very near doing, he would have made the Minister, the King in form almost as well as in substance. Our President will be the British Minister, yet we are about to make him appointable by the Legislature. Something had been said of the danger of Monarchy. If a good government should not now be formed, if a good organization of the Executive should not be provided, he doubted whether we should not have something worse than a limited monarchy. In order to get rid of the dependence of the Executive on the Legislature, the expedient of making him ineligible a 2^d time had been devised. This was as much as to say we sh^d give him the benefit of experience, and then deprive ourselves of the use of it. But make him ineligible a 2^d time--and prolong his duration even to 15 years, will he by any wonderful interposition of providence at that period cease to be a man? No he will be unwilling to quit his exaltation, the road to his object thro' the Constitution will be shut; he will be in possession of the sword, a civil war will ensue, and the Co[~m]ander of the victorious army on which ever side, will be the despot of America. This consideration renders him particularly anxious that the Executive should be properly constituted. The vice here would not, as in some other parts of the system be curable. It is the most difficult of all rightly to balance the Executive. Make him too weak: The Legislature will usurp his powers. Make him too strong. He will usurp on the Legislature. He preferred a short period, a re-eligibility, but a different mode of election. A long period would prevent an adoption of the plan: it ought to do so. He sh^d himself be afraid to trust it. He was not prepared to decide on M^r Wilson's mode of election just hinted by him. He thought it deserved consideration. It would be better that chance sh^d decide than intrigue. On a question to postpone the consideration of the Resolution on the subject of the Executive N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. div^d. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. M^r Wilson then moved that the Executive be chosen every ---- years by ---- Electors to be taken by lot from the Nat^t Legislature who shall proceed immediately to the choice of the Executive and not separate until it be made." M^r Carrol 2^{ds} the motion. M^r Gerry. This is committing too much to chance. If the lot should fall on a sett of unworthy men, an unworthy Executive must be saddled on the Country. He thought it had been demonstrated that no possible mode of electing by the Legislature could be a good one. M^r King. The lot might fall on a majority from the same State which w^d ensure the election of a man from that State. We ought to be governed by reason, not by chance. As nobody seemed to be satisfied, he wished the matter to be postponed. M^r Wilson did not move this as the best mode. His opinion remained unshaken that we ought to resort to the people for the election. He seconded the postponement. M^r Gov^r Morris observed that the chances were almost infinite ag^{st} a majority of Electors from the same State. On a question whether the last motion was in order, it was determined in the affirmative: 7 ays. 4 noes. On the question of postponem^t it was agreed to nem. con. M^r Carrol took occasion to observe that he considered the clause declaring that direct taxation on the States should be in proportion to representation, previous to the obtaining an actual census, as very objectionable, and that he reserved to himself the right of opposing it, if the Report of the Committee of detail should leave it in the plan. M^r Gov^r Morris hoped the Committee would strike out the whole of the clause proportioning direct taxation to representation. He had only meant it as a bridge[10] to assist us over a certain gulph; having passed the gulph the bridge may be removed. He thought the principle laid down with so much strictness, liable to strong objections. [10] The object was to lessen the eagerness on one side, & the opposition on the other, to the share of representation claimed by the S. States on account of the Negroes.--Madison's Note. On a ballot for a Committee to report a Constitution conformable to the Resolutions passed by the Convention, the members chosen were M^r Rutlidge, M^r Randolph, M^r Ghorum, M^r Elseworth, M^r Wilson-- On motion to discharge the Com^e of the whole from the propositions submitted to the Convention by M^r C. Pinkney as the basis of a constitution, and to refer them to the Committee of detail just appointed, it was ag^d to nem: con. A like motion was then made & agreed to nem: con: with respect to the propositions of M^r Patterson. Adjourned. WEDNESDAY JULY 25. IN CONVENTION Clause relating to the Executive being again under consideration[11] [11] "Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on, any but a natural _born_ citizen."--John Jay to Washington, July 25, 1787 (Wash. MSS.). M^r Elseworth moved "that the Executive be appointed by the Legislature," except when the magistrate last chosen shall have continued in office the whole term for which he was chosen, & be reeligible, in which case the choice shall be by Electors appointed by the Legislatures of the States for that purpose. By this means a deserving magistrate may be reelected without making him dependent on the Legislature. M^r Gerry repeated his remark that an election at all by the Nat^l Legislature was radically and incurably wrong; and moved that the Executive be appointed by the Governours & Presidents of the States, with advice of their Councils, and where there are no Councils by Electors chosen by the Legislatures. The executives to vote in the following proportions: viz-- M^r Madison. There are objections ag^{st} every mode that has been, or perhaps can be proposed. The election must be made either by some existing authority under the Nat^l or State Constitutions--or by some special authority derived from the people--or by the people themselves.--The two Existing authorities under the Nat^l Constitution w^d be the Legislative & Judiciary. The latter he presumed was out of the question. The former was in his Judgment liable to insuperable objections. Besides the general influence of that mode on the independence of the Executive, 1. the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3. The Ministers of foreign powers would have and would make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governm^t a man attached to their respective politics & interests. No pains, nor perhaps expence, will be spared, to gain from the Legislature an appointm^t favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho' the elective Magistrate has very little real power, his election has at all times produced the most eager interference of foreign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Nat^l Executive by the first was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Nat^l Legisl^{re} was to controul this propensity. One object of the Nat^l Executive, so far as it would have a negative on the laws, was to controul the Nat^l Legislature so far as it might be infected with a similar propensity. Refer the appointm^t of the Nat^l Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointm^t of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Nat^l Executive would be rendered subservient to them.--An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciary had not & he presumed w^d not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people--and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged ag^{st} it, and greatly preferable to an appointment by the Nat^l Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a further precaution, it might be required that they should meet at some place, distinct from the seat of Gov^t and even that no person within a certain distance of the place at the time sh^d be eligible. This Mode however had been rejected so recently & by so great a majority that it probably would not be proposed anew. The remaining mode was an election by the people or rather by the qualified part of them, at large: With all its imperfections he liked this best. He would not repeat either the general argum^{ts}. for or the objections ag^{st} this mode. He would only take notice of two difficulties which he admitted to have weight. The first arose from the disposition in the people to prefer a Citizen of their own State, and the disadvantage this w^d throw on the smaller States. Great as this objection might be he did not think it equal to such as lay ag^{st} every other mode which had been proposed. He thought too that some expedient might be hit upon that would obviate it. The second difficulty arose from the disproportion of qualified voters in the N. & S. States, and the disadvantages which this mode would throw on the latter. The answer to this objection was 1. that this disproportion would be continually decreasing under the influence of the Republican laws introduced in the S. States, and the more rapid increase of their population. 2. That local considerations must give way to the general interest. As an individual from the S. States, he was willing to make the sacrifice. M^r Elseworth. The objection drawn from the different sizes of the States, is unanswerable. The Citizens of the largest States would invariably prefer the candidate within the State; and the largest States w^d invariably have the man. Question on M^r Elseworth's motion as above. N. H. ay. Mass. no. C^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. M^r Pinkney moved that the election by the Legislature be qualified with a proviso that no person be eligible for more than 6 years in any twelve years. He thought this would have all the advantage & at the same time avoid in some degree the inconveniency, of an absolute ineligibility a 2^d time. Col. Mason approved the idea. It had the sanction of experience in the instance of Cong^s and some of the Executives of the States. It rendered the Executive as effectually independent, as an ineligibility after his first election, and opened the way at the same time for the advantage of his future services. He preferred on the whole the election by the Nat^l Legislature: Tho' Candor obliged him to admit, that there was great danger of foreign influence, as had been suggested. This was the most serious objection with him that had been urged. M^r Butler. The two great evils to be avoided are cabal at home, & influence from abroad. It will be difficult to avoid either if the Election be made by the Nat^l Legislature. On the other hand. The Gov^t should not be made so complex & unwieldy as to disgust the States. This would be the case, if the election sh^d be referred to the people. He liked best an election by Electors chosen by the Legislatures of the States. He was ag^{st} a re-eligibility at all events. He was also ag^{st} a ratio of votes in the States. An equality should prevail in this case. The reasons for departing from it do not hold in the case of the Executive as in that of the Legislature. M^r Gerry approved of M^r Pinkney's motion as lessening the evil. M^r Gov^r Morris was ag^{st} a rotation in every case. It formed a political School, in w^{ch} we were always governed by the scholars, and not by the Masters. The evils to be guarded ag^{st} in this case are. 1. the undue influence of the Legislature. 2. instability of Councils. 3. misconduct in office. To guard ag^{st} the first, we run into the second evil. We adopt a rotation which produces instability of Councils. To avoid Sylla we fall into Charibdis. A change of men is ever followed by a change of measures. We see this fully exemplified in the vicissitudes among ourselves, particularly in the State of Pen^a. The self-sufficiency of a victorious party scorns to tread in the paths of their predecessors. Rehoboam will not imitate Soloman. 2. the Rotation in office will not prevent intrigue and dependence on the Legislature. The man in office will look forward to the period at which he will become re-eligible. The distance of the period, the improbability of such a protraction of his life will be no obstacle. Such is the nature of man, formed by his benevolent author no doubt for wise ends, that altho' he knows his existence to be limited to a span, he takes his measures as if he were to live for ever. But taking another supposition, the inefficacy of the expedient will be manifest. If the magistrate does not look forward to his re-election to the Executive, he will be pretty sure to keep in view the opportunity of his going into the Legislature itself. He will have little objection then to an extension of power on a theatre where he expects to act a distinguished part; and will be very unwilling to take any step that may endanger his popularity with the Legislature, on his influence over which the figure he is to make will depend. 3. To avoid the third evil, impeachments will be essential. And hence an additional reason ag^{st} an election by the Legislature. He considered an election by the people as the best, by the Legislature as the worst, mode. Putting both these aside, he could not but favor the idea of M^r Wilson, of introducing a mixture of lot. It will diminish, if not destroy both cabal & dependence. M^r Williamson was sensible that strong objections lay ag^{st} an election of the Executive by the Legislature, and that it opened a door for foreign influence. The principal objection ag^{st} an election by the people seemed to be, the disadvantage under which it would place the smaller States. He suggested as a cure for this difficulty, that each man should vote for 3 candidates, one of them he observed would be probably of his own State, the other 2. of some other States; and as probably of a small as a large one. M^r Gov^r Morris liked the idea, suggesting as an amendment that each man should vote for two persons one of whom at least should not be of his own State. M^r Madison also thought something valuable might be made of the suggestion with the proposed amendment of it. The second best man in this case would probably be the first, in fact. The only objection which occurred was that each Citizen after hav^g given his vote for his favorite fellow Citizen, w^d throw away his second on some obscure Citizen of another State, in order to ensure the object of his first choice. But it could hardly be supposed that the Citizens of many States would be so sanguine of having their favorite elected, as not to give their second vote with sincerity to the next object of their choice. It might moreover be provided in favor of the smaller States that the Executive should not be eligible more than ---- times in ---- years from the same State. M^r Gerry. A popular election in this case is radically vicious. The ignorance of the people would put it in the power of some one set of men dispersed through the Union & acting in Concert to delude them into any appointment. He observed that such a Society of men existed in the Order of the Cincinnati. They are respectable, united, and influential. They will in fact elect the chief Magistrate in every instance, if the election be referred to the people. His respect for the characters composing this Society could not blind him to the danger & impropriety of throwing such a power into their hands. M^r Dickinson. As far as he could judge from the discussions which had taken place during his attendance, insuperable objections lay ag^{st} an election of the Executive by the Nat^l Legislature; as also by the Legislatures or Executives of the States. He had long leaned towards an election by the people which he regarded as the best & purest source. Objections he was aware lay ag^{st} this mode, but not so great he thought as ag^{st} the other modes. The greatest difficulty in the opinion of the House seemed to arise from the partiality of the States to their respective Citizens. But might not this very partiality be turned to a useful purpose. Let the people of each State chuse its best Citizen. The people will know the most eminent characters of their own States, and the people of different States will feel an emulation in selecting those of which they will have the greatest reason to be proud. Out of the thirteen names thus selected, an Executive Magistrate may be chosen either by the Nat^l Legislature, or by Electors appointed by it. On a Question which was moved for postponing M^r Pinkney's motion, in order to make way for some such proposition as had been hinted by M^r Williamson & others, it passed in the negative. N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. On M^r Pinkney's motion that no person shall serve in the Executive more than 6 years in 12. years, it passed in the negative. N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. On a motion that the members of the Committee be furnished with copies of the proceedings it was so determined; S. Carolina alone being in the negative. It was then moved that the members of the House might take copies of the Resolutions which had been agreed to; which passed in the negative. N. H. no. Mas. no. Con. ay. N. J. ay. P^a no. Del. ay. Mary^d no. V^a ay. N. C. ay. S. C. no. Geo. no. M^r Gerry & M^r Butler moved to refer the resolution relating to the Executive (except the clause making it consist of a single person) to the Co[~m]ittee of detail. M^r Wilson hoped that so important a branch of the System w^d not be committed untill a general principle sh^d be fixed by a vote of the House. M^r Langdon. was for the commitment--Adj^d. THURSDAY JULY. 26. IN CONVENTION.[12] [12] "The affairs of the federal government are, I believe, in the utmost confusion: The convention is an expedient that will produce a decisive effect. It will either recover us from our present embarrassments or complete our ruin; for I do suspect that if what they recommend sho^d be rejected this wo^d be the case. But I trust that the presence of Gen^l Washington will have great weight in the body itself so as to overawe & keep under the demon of party, & that the signature of his name to whatever act shall be the result of their deliberations will secure its passage thro' the union."--Monroe to Jefferson, July 27, 1787 (_Writings of Monroe_, i., 173). Col. Mason. In every stage of the Question relative to the Executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared. Nor have any of the modes of constituting that department been satisfactory. 1. It has been proposed that the election should be made by the people at large; that is that an act which ought to be performed by those who know most of Eminent characters, & qualifications, should be performed by those who know least. 2. that the election should be made by the Legislatures of the States. 3. by the Executives of the States. Ag^{st} these modes also strong objections have been urged. 4. It has been proposed that the election should be made by Electors chosen by the people for that purpose. This was at first agreed to: But on further consideration has been rejected. 5. Since which, the mode of M^r Williamson, requiring each freeholder to vote for several candidates has been proposed. This seemed like many other propositions, to carry a plausible face, but on closer inspection is liable to fatal objections. A popular election in any form, as M^r Gerry has observed, would throw the appointment into the hands of the Cincinnati, a Society for the members of which he had a great respect, but which he never wished to have a preponderating influence in the Gov^t. 6. Another expedient was proposed by M^r Dickinson, which is liable to so palpable & material an inconvenience that he had little doubt of its being by this time rejected by himself. It would exclude every man who happened not to be popular within his own State; tho' the causes of his local unpopularity might be of such a nature as to recommend him to the States at large. 7. Among other expedients, a lottery has been introduced. But as the tickets do not appear to be in much demand, it will probably, not be carried on, and nothing therefore need be said on that subject. After reviewing all these various modes, he was led to conclude, that an election by the Nat^l Legislature as originally proposed, was the best. If it was liable to objections, it was liable to fewer than any other. He conceived at the same time that a second election ought to be absolutely prohibited. Having for his primary object for the pole-star of his political conduct, the preservation of the rights of the people, he held it as an essential point, as the very palladium of civil liberty, that the Great officers of State, and particularly the Executive should at fixed periods return to that mass from which they were at first taken, in order that they may feel & respect those rights & interests, Which are again to be personally valuable to them. He concluded with moving that the constitution of the Executive as reported by the Com^e of the whole be reinstated, viz. "that the Executive be appointed for seven years, & be ineligible a 2^d time." M^r Davie seconded the motion. Doc^r Franklin. It seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. This he thought was contrary to republican principles. In free Governments the rulers are the servants, and the people their superiors & sovereigns. For the former therefore to return among the latter was not to _degrade_ but to _promote_ them. And it would be imposing an unreasonable burden on them, to keep them always in a State of servitude, and not allow them to become again one of the Masters. Question on Col. Masons motion as above; which passed in the affirmative N. H. ay. Mass^{ts} not on floor. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gov^r Morris was now ag^{st} the whole paragraph. In answer to Col. Mason's position that a periodical return of the great officers of the State into the mass of the people, was the palladium of Civil liberty he w^d observe that on the same principle the Judiciary ought to be periodically degraded; certain it was that the Legislature ought on every principle, yet no one had proposed, or conceived that the members of it should not be re-eligible. In answer to Doc^r Franklin, that a return into the mass of the people would be a promotion, instead of a degradation, he had no doubt that our Executive like most others would have too much patriotism to shrink from the burthen of his office, and too much modesty not to be willing to decline the promotion. On the question on the whole resolution as amended in the words following--"that a National Executive be instituted--to consist of a single person--to be chosen by the Nat^l legislature--for the term of seven years--to be ineligible a 2^d time--with power to carry into execution the nat^l laws--to appoint to offices in cases not otherwise provided for--to be removable on impeachment & conviction of mal-practice or neglect of duty--to receive a fixt compensation for the devotion of his time to the public service, to be paid out of the Nat^l treasury"--it passed in the affirmative N. H. ay. Mass. not on floor. C^t ay. N. J. ay. P^a no. Del. no. M^d no. V^a div^d. M^r Blair & Col. Mason ay. Gen^l Washington & M^r Madison no. M^r Randolph happened to be out of the House. N. C. ay. S. C. ay. Geo. ay. M^r Mason moved "that the Co[~m]ittee of detail be instructed to receive a clause requiring certain qualifications of landed property & citizenship of the U. States, in members of the Legislature, and disqualifying persons having unsettled Acc^{ts} with or being indebted to the U. S., from being members of the Nat^l Legislature."--He observed that persons of the latter descriptions had frequently got into the State Legislatures, in order to promote laws that might shelter their delinquencies; and that this evil had crept into Cong^s if Report was to be regarded. M^r Pinckney seconded the motion. Mr. Gov^r Morris. If qualifications are proper, he w^d prefer them in the electors rather than the elected. As to debtors of the U. S. they are but few. As to persons having unsettled accounts he believed them to be pretty many. He thought however that such a discrimination would be both odious & useless, and in many instances, unjust & cruel. The delay of settlem^t had been more the fault of the Public than of the individuals. What will be done with those patriotic Citizens who have lent money, or services or property to their Country, without having been yet able to obtain a liquidation of their claims? Are they to be excluded? M^r Ghorum was for leaving to the Legislature the providing ag^{st} such abuses as had been mentioned. Col. Mason mentioned the parliamentary qualifications adopted in the Reign of Queen Anne, which he said had met with universal approbation. M^r Madison had witnessed the zeal of men having acc^{ts} with the public, to get into the Legislatures for sinister purposes. He thought however that if any precaution were taken for excluding them, the one proposed by Col. Mason ought to be new modelled. It might be well to limit the exclusion to persons who had rec^d money from the public, and had not accounted for it. M^r Gov^r Morris. It was a precept of great antiquity as well as of high authority that we should not be righteous overmuch. He thought we ought to be equally on our guard ag^{st} being wise overmuch. The proposed regulation would enable the Govern^t to exclude particular persons from office as long as they pleased. He mentioned the case of the Co[~m]ander in Chief's presenting his account for secret services, which he said was so moderate that every one was astonished at it; and so simple that no doubt could arise on it. Yet had the Auditor been disposed to delay the settlement, how easily he might have effected it, & how cruel w^d it be in such a case to keep a distinguished & meritorious Citizen under a temporary disability & disfranchisement. He mentioned this case merely to illustrate the objectionable nature of the proposition. He was opposed to such minutious regulations in a Constitution. The parliamentary qualifications quoted by Col. Mason, had been disregarded in practice; and was but a scheme of the landed ag^{st} the monied interest. M^r Pinckney & Gen^l Pinckney moved to insert by way of amendm^t the words Judiciary & Executive so as to extend the qualifications to those departments which was agreed to nem con. M^r Gerry thought the inconveniency of excluding a few worthy individuals who might be public debtors or have unsettled acc^{ts} ought not to be put in the scale ag^{st} the public advantages of the regulation, and that the motion did not go far enough. M^r King observed that there might be great danger in requiring landed property as a qualification since it would exclude the monied interest, whose aids may be essential in particular emergencies to the public safety. M^r Dickinson, was ag^{st} any recital of qualifications in the Constitution. It was impossible to make a compleat one, and a partial one w^d by implication tie up the hands of the Legislature from supplying the omissions. The best defence lay in the freeholders who were to elect the Legislature. Whilst this Source should remain pure, the Public interest would be safe. If it ever should be corrupt, no little expedients would repel the danger. He doubted the policy of interweaving into a Republican constitution a veneration for wealth. He had always understood that a veneration for poverty & virtue, were the objects of republican encouragement. It seemed improper that any man of merit should be subjected to disabilities in a Republic where merit was understood to form the great title to public trust, honors & rewards. M^r Gerry if property be one object of Government, provisions to secure it cannot be improper. M^r Madison moved to strike out the word _landed_, before the word "qualifications." If the proposition s^d be agreed to he wished the Committee to be at liberty to report the best criterion they could devise. Landed possessions were no certain evidence of real wealth. Many enjoyed them to a great extent who were more in debt than they were worth. The unjust Laws of the States had proceeded more from this class of men, than any others. It had often happened that men who had acquired landed property on credit, got into the Legislatures with a view of promoting an unjust protection ag^{st} their Creditors. In the next place, if a small quantity of land should be made the standard, it would be no security; if a large one, it would exclude the proper representatives of those classes of Citizens who were not landholders. It was politic as well as just that the interests & rights of every class should be duly represented & understood in the public Councils. It was a provision every where established that the Country should be divided into districts & representatives taken from each, in order that the Legislative Assembly might equally understand & sympathize with the rights of the people in every part of the Community. It was not less proper that every class of Citizens should have an opportunity of making their rights be felt & understood in the public Councils. The three principal classes into which our citizens were divisible, were the landed the commercial, & the manufacturing. The 2^d & 3^d class, bear as yet a small proportion to the first. The proportion however will daily increase. We see in the populous Countries in Europe now, what we shall be hereafter. These classes understand much less of each others interests & affairs, than men of the same class inhabiting different districts. It is particularly requisite therefore that the interests of one or two of them should not be left entirely to the care, or impartiality of the third. This must be the case if landed qualifications should be required; few of the mercantile, & scarcely any of the manufacturing class chusing whilst they continue in business to turn any part of their Stock into landed property. For these reasons he wished if it were possible that some other criterion than the mere possession of land should be devised. He concurred with M^r Gov^r Morris in thinking that qualifications in the Electors would be much more effectual than in the elected. The former would discriminate between real & ostensible property in the latter; But he was aware of the difficulty of forming any uniform standard that would suit the different circumstances & opinions prevailing in the different States. M^r Gov^r Morris 2^{ded} the motion. On the Question for striking out "landed" N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. On Question on 1^{st} part of Col. Masons proposition as to "qualification of property & citizenship," as so amended N. H. ay. Mas^{ts} ay. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. "The 2^d part, for disqualifying debtors, and persons having unsettled accounts," being under consideration M^r Carrol moved to strike out "having unsettled accounts" M^r Ghorum seconded the motion; observing that it would put the commercial & manufacturing part of the people on a worse footing than others as they would be most likely to have dealings with the public. M^r L. Martin, if these words should be struck out, and the remaining words concerning debtors retained, it will be the interest of the latter class to keep their accounts unsettled as long as possible. M^r Wilson was for striking them out. They put too much power in the hands of the Auditors, who might combine with rivals in delaying settlements in order to prolong the disqualifications of particular men. We should consider that we are providing a Constitution for future generations, and not merely for the peculiar circumstances of the moment. The time has been, and will again be, when the public safety may depend on the voluntary aids of individuals which will necessarily open acc^{ts} with the public, and when such acc^{ts} will be a characteristic of patriotism. Besides a partial enumeration of cases will disable the Legislature from disqualifying odious & dangerous characters. M^r Langdon[13] was for striking out the whole clause for the reasons given by M^r Wilson. So many exclusions he thought too would render the system unacceptable to the people. [13] "M^r Langdon is a man of considerable fortune, possesses a liberal mind, and a good plain understanding--about 40 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 325. M^r Gerry. If the argum^{ts} used today were to prevail, we might have a Legislature composed of Public debtors, pensioners, placemen & contractors. He thought the proposed qualifications would be pleasing to the people. They will be considered as a security ag^{st} unnecessary or undue burdens being imposed on them. He moved to add "pensioners" to the disqualified characters which was negatived. N. H. no. Mas. ay. Con. no. N. J. no. P^a no. Del. no. Mary^d ay. V^a no. N. C. divided. S. C. no. Geo. ay. M^r Gov^r Morris. The last clause, relating to public debtors will exclude every importing merchant. Revenue will be drawn it is foreseen as much as possible, from trade. Duties of course will be bonded, and the Merch^{ts} will remain debtors to the public. He repeated that it had not been so much the fault of individuals as of the public that transactions between them had not been more generally liquidated & adjusted. At all events to draw from our short & scanty experience rules that are to operate through succeeding ages, does not savour much of real wisdom. On question for striking out, "persons having unsettled accounts with the U. States." N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no. M^r Elseworth was for disagreeing to the remainder of the clause disqualifying Public debtors; and for leaving to the wisdom of the Legislature and the virtue of the Citizens, the task of providing ag^{st} such evils. Is the smallest as well as the largest debtor to be excluded? Then every arrear of taxes will disqualify. Besides how is it to be known to the people when they elect who are or are not public debtors. The exclusion of pensioners & placemen in Engl^d is founded on a consideration not existing here. As persons of that sort are dependent on the Crown, they tend to increase its influence. M^r Pinkney s^d he was at first a friend to the proposition, for the sake of the clause relating to qualifications of property; but he disliked the exclusion of public debtors; it went too far. It w^d exclude persons who had purchased confiscated property or should purchase Western territory of the public, and might be some obstacle to the sale of the latter. On the question for agreeing to the clause disqualifying public debtors N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. no. Geo. ay. Col. Mason, observed that it would be proper, as he thought, that some provision should be made in the Constitution ag^{st} choosing for the Seat of the Gen^l Gov^t the City or place at which the Seat of any State Gov^t might be fixt. There were 2 objections ag^{st} having them at the same place, which without mentioning others, required some precaution on the subject. The 1^{st} was that it tended to produce disputes concerning jurisdiction. The 2^d & principal one was that the intermixture of the two Legislatures tended to give a provincial tincture to y^e Nat^l deliberations. He moved that the Com^e be instructed to receive a clause to prevent the seat of the Nat^l Gov^t being in the same City or town with the Seat of the Gov^t of any State longer than untill the necessary public buildings could be erected. M^r Alex. Martin 2^{ded} the motion. M^r Gov^r Morris did not dislike the idea, but was apprehensive that such a clause might make enemies of Philad^a & N. York which had expectations of becoming the Seat of the Gen^l Gov^t. M^r Langdon approved the idea also: but suggested the case of a State moving its seat of Gov^t to the nat^l Seat after the erection of the Public buildings. M^r Ghorum. The precaution may be evaded by the Nat^l Legisl^{re} by delaying to erect the Public buildings. M^r Gerry conceived it to be the gen^l sense of America, that neither the Seat of a State Gov^t nor any large commercial City should be the seat of the Gen^l Gov^t. M^r Williamson liked the idea, but knowing how much the passions of men were agitated by this matter, was apprehensive of turning them ag^{st} the System. He apprehended also that an evasion, might be practised in the way hinted by M^r Ghorum. M^r Pinkney thought the Seat of a State Gov^t ought to be avoided; but that a large town or its vicinity would be proper for the Seat of the Gen^l Gov^t. Col. Mason did not mean to press the motion at this time, nor to excite any hostile passions ag^{st} the system. He was content to withdraw the motion for the present. M^r Butler was for fixing by the Constitution the place, & a central one, for the seat of the Nat^l Gov^t. The proceedings since Monday last were referred unanimously to the Com^e of detail, and the Convention then unanimously adjourned till Monday, Aug^{st} 6. that the Com^e of detail might have time to prepare & report the Constitution. The whole proceedings as referred are as follow[14]: [14] Madison's note says: "here copy them from the Journal p. 207." In the _Journal_ they are given as having been "collected from the proceedings of the convention, as they are spread over the journal from June 19^{th} to July 26^{th}."--_Journal of Federal Convention_, 207. The dates show when the resolutions were agreed to, and are correct. June 20. I. RESOLVED, That the Government of the United States ought to consist of a supreme legislative, judiciary, and executive. June 21. II. RESOLVED, That the legislature consist of two branches. III. RESOLVED, That the members of the first branch of the legislature ought to be elected by the people of the several states, for the term of two years; to be paid June 22. out of the publick treasury; to receive an adequate compensation for their services; to be of the age of June 23. twenty-five years at least; to be ineligible and incapable of holding any office under the authority of the United States (except those peculiarly belonging to the functions of the first branch) during the term of service of the first branch. June 25. IV. RESOLVED, That the members of the second branch of the legislature of the United States ought to be chosen by the individual legislatures; to be of the age of June 26. thirty years at least; to hold their offices for six years, one third to go out biennally; to receive a compensation for the devotion of their time to the publick service; to be ineligible to and incapable of holding any office, under the authority of the United States (except those peculiarly belonging to the functions of the second branch) during the term for which they are elected, and for one year thereafter. V. RESOLVED, That each branch ought to possess the right of originating acts. VI. RESOLVED, That the national legislature ought to Postponed 27. possess the legislative rights vested in Congress by the July 16. confederation; and moreover, to legislate in all cases for the general interests of the union, and also in July 17. those to which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation. VII. RESOLVED, That the legislative acts of the United States, made by virtue and in pursuance of the articles of union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, as far as those acts or treaties shall relate to the said states, or their July 17 citizens and inhabitants; and that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary, notwithstanding. July 16. VIII. RESOLVED, That in the original formation of the legislature of the United States, the first branch thereof shall consist of sixty-five members; of which number New Hampshire shall send three, Massachusetts eight, Rhode Island one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, Georgia three. But as the present situation of the states may probably alter in the number of their inhabitants, the legislature of the United States shall be authorized, from time to time, to apportion the number of representatives; and in case any of the states shall hereafter be divided, or enlarged by addition of territory, or any two or more states united, or any new states created within the limits of the United States, the legislature of the United States shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principle of their number of inhabitants according to the provisions hereafter mentioned, namely--Provided always, that representation ought to be proportioned to direct taxation. And in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the states-- IX. RESOLVED, That a census be taken within six years from the first meeting of the legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their resolution of April 18, 1783; and that the legislature of the United States shall proportion the direct taxation accordingly. X. RESOLVED, That all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature of the United States, and shall not be altered or amended by the second branch; and that no money shall be drawn from the publick treasury, but in pursuance of appropriations to be originated by the first branch. XI. RESOLVED, That in the second branch of the legislature of the United States, each state shall have an equal vote. July 26. XII. RESOLVED, That a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of mal-practice or neglect of duty; to receive a fixed compensation for the devotion of his time to the publick service; to be paid out of the publick treasury. July 21. XIII. RESOLVED, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two third parts of each branch of the national legislature. July 18. XIV. RESOLVED, That a national judiciary be established, to consist of one supreme tribunal, the judges of which July 21. shall be appointed by the second branch of the national July 18. legislature; to hold their offices during good behaviour; to receive punctually, at stated times, a fixed compensation for their services, in which no diminution shall be made, so as to affect the persons actually in office at the time of such diminution. XV. RESOLVED, That the national legislature be empowered to appoint inferior tribunals. XVI. RESOLVED, That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature; and to such other questions as involve the national peace and harmony. XVII. RESOLVED, That provision ought to be made for the admission of states lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole. XVIII. RESOLVED, That a republican form of government shall be guarantied to each state; and that each state shall be protected against foreign and domestick violence. July 23. XIX. RESOLVED, That provision ought to be made for the amendment of the articles of union, whensoever it shall seem necessary. XX. RESOLVED, That the legislative, executive, and judiciary powers within the several states, and of the national government, ought to be bound, by oath, to support the articles of union. XXI. RESOLVED, That the amendments which shall be offered to the confederation by the convention ought, at a proper time or times after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon. XXII. RESOLVED, That the representation in the second branch of the legislature of the United States consist of two members from each state, who shall vote per capita. July 26. XXIII. RESOLVED, That it be an instruction to the committee, to whom were referred the proceedings of the convention for the establishment of a national government, to receive a clause or clauses, requiring certain qualifications of property and citizenship, in the United States, for the executive, the judiciary, and the members of both branches of the legislature of the United States. With the above resolutions were referred the propositions offered by M^r C. Pinckney on the 29^{th} of May, & by M^r Patterson on the 15^{th} of June.[15] [15] "Aug 1. 1787 WILLIAMSB. "DEAR COL. "We are here & I believe every where all Impatience to know something of your conventional Deliberations. If you cannot tell us what you are doing, you might at least give us some Information of what you are not doing. This w^d afford food for political conjecture, and perhaps be sufficient to satisfy present Impatience. I hope you have already discovered the means of preserving the American Empire united--& that the scheme of a Disunion has been found pregnant with y^e greatest Evils--But we are not at this distance able to judge with any accuracy upon subjects so truly important & interesting as those w^{ch} must engage you at present--We can only hope, that you will all resemble Cæsar, at least in one particular: 'nil actum reputans si quid superesset agendum';--& that your Exertions will be commensurate to y^e great Expectations w^{ch} have been formed... "J. MADISON."[A] [A] President of William and Mary College, and the first Bishop of the Episcopal Church in Virginia. He was a second cousin of James Madison, of Orange. (Mad. MSS.) "RICHMOND Aug^t 5. 87. "DEAR SIR, "I am much obliged to you for your communication of the proceedings of y^e Convention, since I left them; for I feel that anxiety about y^e result, which it's Importance must give to every honest citizen. If I thought that my return could contribute in the smallest degree to it's Improvement, nothing should Keep me away. But as I know that the talents, knowledge, & well-established character, of our present delegates have justly inspired the country with y^e most entire confidence in their determinations; & that my vote could only _operate_ to produce a division, & so destroy y^e vote of y^e State, I think that my attendance now would certainly be useless, perhaps injurious. "I am credibly inform'd that M^r Henry has openly express'd his disapprobation of the circular letter of Congress, respecting y^e payment of British debts; & that he has declared his opinion that y^e Interests of this state cannot safely be trusted with that body. The doctrine of three confederacies, or great Republics, has its advocates here. I have heard Hervie support it, along with y^e extinction of State Legislatures within each great Department. The necessity of some independent power to controul the Assembly by a negative, seems now to be admitted by y^e most zealous republicans--they only differ about y^e mode of constituting such a power. B. Randolph seems to think that a magistrate annually elected by y^e people might exercise such a controul as independently as y^e King of G. B. I hope that our representative, Marshall, will be a powerful aid to Mason in the next Assembly. He has observ'd the actual depravation of mens manners, under y^e corrupting Influence of our Legislature; and is convinc'd that nothing but y^e adoption of some efficient plan from y^e Convention can prevent anarchy first, & civil convulsions afterwards. M^r H----y has certainly converted a majority of Prince Edward, formerly y^e most averse to paper money, to y^e patronage of it.... "Your friend & humble serv^t. "JAMES MCCLURG." (Mad. MSS.) MONDAY AUGUST 6^{TH}. IN CONVENTION M^r John Francis Mercer from Maryland took his seat. M^r Rutlidge delivered in the Report of the Committee of detail as follows: a printed copy being at the same time furnished to each member[16]: [16] Madison's printed copy is marked: "As Reported by Com^e of Detail viz of five. Aug. 6. 1787." It is a large folio of seven pages. In the enumeration of the Articles by a misprint VI. was repeated, and the alterations in Article VII. and succeeding articles were made by Madison. In Sect. II of Article VI., as it was printed, it appeared: "The enacting stile of the laws of the United States shall be. 'Be it enacted and it is hereby enacted by the House of Representatives, and by the Senate of the United States, in Congress assembled,'" which Madison altered to read: "The enacting stile of the laws of the United States shall be. 'Be it enacted by the Senate & representatives, in Congress assembled.'" The printed copy among the Madison papers is a duplicate of the copy filed by General Washington with the papers of the Constitution, and Sec. II is there given as actually printed.--_Journal of the Federal Convention_, 219. (Const. MSS.) Madison accurately transcribed the report for his journal and it is this copy which is used in the text. "We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity. ARTICLE I The stile of the Government shall be, "The United States of America." II The Government shall consist of supreme legislative, executive, and judicial powers. III The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives and a Senate; each of which shall in all cases have a negative on the other. The Legislature shall meet on the first Monday in December in every year. IV Sect. 1. The members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures. Sect. 2. Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen in the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen. Sect. 3. The House of Representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner hereinafter described, consist of sixty-five Members, of whom three shall be chosen in New-Hampshire, eight in Massachusetts, one in Rhode-Island and Providence Plantations, five in Connecticut, six in New-York, four in New-Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North-Carolina, five in South-Carolina, and three in Georgia. Sect. 4. As the proportions of numbers in different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more States may be united; as new States will be erected within the limits of the United States, the Legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for every forty thousand. Sect. 5. All bills for raising or appropriating money, and for fixing the salaries of the officers of Government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the Public Treasury, but in pursuance of appropriations that shall originate in the House of Representatives. Sect. 6. The House of Representatives shall have the sole power of impeachment. It shall choose its Speaker and other officers. Sect. 7. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State, in the representation from which they shall happen. V Sect. 1. The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature. Each member shall have one vote. Sect. 2. The Senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two and three. The seats of the members of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, of the third class at the expiration of the sixth year, so that a third part of the members may be chosen every second year. Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen. Sect. 4. The Senate shall chuse its own President and other officers. VI Sect. 1. The times and places and manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States. Sect. 2. The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient. Sect. 3. In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day. Sect. 4. Each House shall be the judge of the elections, returns and qualifications of its own members. Sect. 5. Freedom of speech and debate in the Legislature shall not be impeached or questioned in any Court or place out of the Legislature; and the members of each House shall, in all cases, except treason felony and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it. Sect. 6. Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member. Sect. 7. The House of Representatives, and the Senate, when it shall be acting in a legislative capacity, shall keep a journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each House, on any question, shall at the desire of one-fifth part of the members present, be entered on the journal. Sect. 8. Neither House, without the consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate, when it shall exercise the powers mentioned in the ---- article. Sect. 9. The members of each House shall be ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected: and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards. Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State, in which they shall be chosen. Sect. 11. The enacting stile of the laws of the United States shall be, "Be it enacted by the Senate and Representatives in Congress assembled." Sect. 12. Each House shall possess the right of originating bills, except in the cases beforementioned. Sect. 13. Every bill, which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider the bill. But if after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of the other House also, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return; in which case it shall not be a law. VII Sect. 1. The Legislature of the United States shall have the power to lay and collect taxes, duties, imposts and excises; To regulate commerce with foreign nations, and among the several States; To establish an uniform rule of naturalization throughout the United States; To coin money; To regulate the value of foreign coin; To fix the standard of weights and measures; To establish Post-offices; To borrow money, and emit bills on the credit of the United States; To appoint a Treasurer by ballot; To constitute tribunals inferior to the Supreme Court; To make rules concerning captures on land and water; To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations; To subdue a rebellion in any State, on the application of its legislature; To make war; To raise armies; To build and equip fleets; To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions; And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the government of the United States, or in any department or officer thereof; Sect. 2. Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted. Sect. 3. The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except Indians not paying taxes) which number shall, within six years after the first meeting of the Legislature, and within the term of every ten years afterwards, be taken in such manner as the said Legislature shall direct. Sect. 4. No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited. Sect. 5. No capitation tax shall be laid, unless in proportion to the Census hereinbefore directed to be taken. Sect. 6. No navigation act shall be passed without the assent of two thirds of the members present in each House. Sect. 7. The United States shall not grant any title of Nobility. VIII The acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the several States, and of the citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; any thing in the Constitutions or laws of the several States to the contrary notwithstanding. IX Sect 1. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court. Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the Legislature, or the Executive authority, or lawful agent of any State, in controversy with another, shall by memorial to the Senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the Senate, to the Legislature or the Executive authority of the other State in Controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before the House. The Agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a Court for hearing and determining the matter in question. But if the Agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or Judges to hear and finally determine the controversy; provided a majority of the Judges, who shall hear the cause, agree in the determination. If either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such Court; or shall not appear to prosecute or defend their claim or cause, the Court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records for the security of the parties concerned. Every Commissioner shall, before he sit in judgment, take an oath, to be administered by one of the Judges of the Supreme or Superior Court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward." Sect. 3. All controversies concerning lands claimed under different grants of two or more States, whose jurisdictions, as they respect such lands, shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States. X Sect. 1. The Executive Power of the United States shall be vested in a single person. His stile shall be, "The President of the United States of America;" and his title shall be, "His Excellency." He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time. Sect. 2. He shall, from time to time, give information to the Legislature, of the state of the Union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper: he shall take care that the laws of the United States be duly and faithfully executed: he shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive Ambassadors, and may correspond with the supreme Executives of the several States. He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. He shall be commander in chief of the Army and Navy of the United States, and of the militia of the several States. He shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during his continuance in office. Before he shall enter on the duties of his department, he shall take the following oath or affirmation, "I ---- solemnly swear, (or affirm) that I will faithfully execute the office of President of the United States of America." He shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery, or corruption. In case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties, until another President of the United States be chosen, or until the disability of the President be removed. XI Sect. 1. The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States. Sect. 2. The Judges of the Supreme Court, and of the Inferior Courts, shall hold their offices during good behaviour. They shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of officers of the United States; to all cases of Admiralty and maritime jurisdiction; to controversies between two or more States, (except such as shall regard Territory or Jurisdiction) between a State and Citizens of another State, between Citizens of different States, and between a State or the Citizens thereof and foreign States, citizens or subjects. In cases of impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be party, this jurisdiction shall be original. In all the other cases beforementioned, it shall be appellate, with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the jurisdiction abovementioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time. Sect. 4. The trial of all criminal offences (except in cases of impeachments) shall be in the State where they shall be committed; and shall be by Jury. Sect. 5. Judgment, in cases of Impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit, under the United States. But the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law. XII No State shall coin money; nor grant letters of marque and reprisal; nor enter into any Treaty, alliance, or confederation; nor grant any title of Nobility. XIII No State, without the consent of the Legislature of the United States, shall emit bills of credit, or make any thing but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent, as not to admit of a delay, until the Legislature of the United States can be consulted. XIV The Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. XV Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence. XVI Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and magistrates of every other State. XVII New States lawfully constituted or established within the limits of the United States may be admitted, by the Legislature, into this government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the Legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the Public debt which shall be then subsisting. XVIII The United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign invasions, and, on the application of its Legislature, against domestic violence. XIX On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose. XX The members of the Legislatures, and the Executive and Judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution. XXI The ratification of the Conventions of ---- States shall be sufficient for organizing this Constitution. XXII This Constitution shall be laid before the United States in Congress Assembled, for their approbation; and it is the opinion of this Convention, that it should be afterwards submitted to a Convention chosen, under the recommendation of its legislature, in order to receive the ratification of such Convention. XXIII To introduce this government, it is the opinion of this Convention, that each assenting Convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the Conventions of ---- States, should appoint and publish a day, as early as may be, and appoint a place, for commencing proceedings under this Constitution; that after such publication, the Legislatures of the several States should elect members of the Senate, and direct the election of members of the House of Representatives; and that the members of the Legislature should meet at the time and place assigned by Congress, and should, as soon as may be, after their meeting, choose the President of the United States, and proceed to execute this Constitution. A motion was made to adjourn till Wednesday, in order to give leisure to examine the Report; which passed in the negative-- N. H. no. Mas. no. C^t no. P^a ay. M^d ay. Virg. ay. N. C. no. S. C. no. The House then adjourned till to-morrow 11 OC. TUESDAY AUGUST 7.[17] IN CONVENTION [17] Although the secrecy of the proceedings was guarded carefully, the reason of the long adjournment was generally known outside of the Convention. "The Convention adjourned about three weeks ago and appointed a Committee consisting of M^r Rutlege, M^r Randolph, M^r Wilson, M^r Elsworth, & M^r Gorham to draw into form the measures which had been agreed upon--they reassembled last Monday sen'night to receive the report--I suppose we shall have the result of this great business in a few weeks more."--Edward Carrington to Monroe, August 7, 1787. Monroe MSS. _Cf._ King's account of the debate confirming the accuracy of Madison's report (King's _Life and Correspondence of Rufus King_, i., 617). The Report of the Committee of detail being taken up, M^r Pinkney moved that it be referred to a Committee of the whole. This was strongly opposed by M^r Ghorum & several others, as likely to produce unnecessary delay; and was negatived, Delaware Mary^d & Virg^a only being in the affirmative. The preamble of the Report was agreed to nem. con. So were Art: I & II. Art: III considered. Col. Mason doubted the propriety of giving each branch a negative on the other "in all cases." There were some cases in which it was he supposed not intended to be given as in the case of balloting for appointments. M^r Gov^r Morris moved to insert "legislative acts" instead of "all cases." M^r Williamson 2^{ds} him. M^r Sherman. This will restrain the operation of the clause too much. It will particularly exclude a mutual negative in the case of ballots, which he hoped would take place. M^r Ghorum contended that elections ought to be made by _joint ballot_. If separate ballots should be made for the President, and the two branches should be each attached to a favorite, great delay contention & confusion may ensue. These inconveniences have been felt in Mas^{ts} in the election of officers of little importance compared with the Executive of the U. States. The only objection ag^{st} a joint ballot is that it may deprive the Senate of their due weight; but this ought not to prevail over the respect due to the public tranquility & welfare. M^r Wilson was for a joint ballot in several cases at least; particularly in the choice of the President, and was therefore for the amendment. Disputes between the two Houses during & concern^g the vacancy of the Executive might have dangerous consequences. Col. Mason thought the amendment of M^r Gov^r Morris extended too far. Treaties are in a subsequent part declared to be laws, they will therefore be subjected to a negative; altho' they are to be made as proposed by the Senate alone. He proposed that the mutual negative should be restrained to "cases requiring the distinct assent" of the two Houses. M^r Gov^r Morris thought this but a repetition of the same thing; the mutual negative and distinct assent, being equivalent expressions. Treaties he thought were not laws. M^r Madison moved to strike out the words each of which shall in all cases, have a negative on the other; the idea being sufficiently expressed in the preceding member of the article; vesting the "legislative power" in "distinct bodies," especially as the respective powers and mode of exercising them were fully delineated in a subsequent article. Gen^l Pinkney 2^{ded} the motion. On question for inserting legislative Acts as moved by M^r Gov^r Morris N. H. ay. Mas. ay. C^t ay. P^a ay. Del. no. M^d no. V^a no. N. C. ay. S. C. no. Geo. no. On question for agreeing to M^r M's motion to strike out &c.---- N. H. ay. Mas. ay. C^t no. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. ay. Geo. ay. M^r Madison wished to know the reasons of the Com^e for fixing by y^e Constitution the time of Meeting for the Legislature; and suggested, that it be required only that one meeting at least should be held every year leaving the time to be fixed or varied by law. M^r Gov^r Morris moved to strike out the sentence. It was improper to tie down the Legislature to a particular time, or even to require a meeting every year. The public business might not require it. M^r Pinkney concurred with M^r Madison. M^r Ghorum. If the time be not fixed by the Constitution, disputes will arise in the Legislature; and the States will be at a loss to adjust thereto, the times of their elections. In the N. England States the annual time of meeting had been long fixed by their Charters & Constitutions, and no inconvenience had resulted. He thought it necessary that there should be one meeting at least every year as a check on the Executive department. M^r Elseworth was ag^{st} striking out the words. The Legislature will not know till they are met whether the public interest required their meeting or not. He could see no impropriety in fixing the day, as the Convention could judge of it as well as the Legislature. M^r Wilson thought on the whole it would be best to fix the day. M^r King could not think there would be a necessity for a meeting every year. A great vice in our system was that of legislating too much. The most numerous objects of legislation belong to the States. Those of the Nat^l Legislature were but few. The chief of them were commerce & revenue. When these should be once settled alterations would be rarely necessary & easily made. M^r Madison thought if the time of meeting should be fixed by a law it w^d be sufficiently fixed & there would be no difficulty then as had been suggested, on the part of the States in adjusting their elections to it. One consideration appeared to him to militate strongly ag^{st} fixing a time by the Constitution. It might happen that the Legislature might be called together by the public exigencies & finish their Session but a short time before the annual period. In this case it would be extremely inconvenient to reassemble so quickly & without the least necessity. He thought one annual meeting ought to be required; but did not wish to make two unavoidable. Col. Mason thought the objections against fixing the time insuperable: but that an annual meeting ought to be required as essential to the preservation of the Constitution. The extent of the Country will supply business. And if it should not, the Legislature, besides _legislative_, is to have _inquisitorial_ powers, which cannot safely be long kept in a state of suspension. M^r Sherman was decided for fixing the time, as well as for frequent meetings of the Legislative body. Disputes and difficulties will arise between the two Houses, & between both & the States, if the time be changeable--frequent meetings of Parliament were required at the Revolution in England as an essential safeguard of liberty. So also are annual meetings in most of the American charters & constitutions. There will be business eno' to require it. The Western Country, and the great extent and varying state of our affairs in general will supply objects. M^r Randolph was ag^{st} fixing any day irrevocably; but as there was no provision made any where in the Constitution for regulating the periods of meeting, and some precise time must be fixed, untill the Legislature shall make provision, he could not agree to strike out the words altogether. Instead of which he moved to add the words following--"unless a different day shall be appointed by law." M^r Madison 2^{ded} the motion, & on the question N. H. no. Mass. ay. C^t no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gov^r Morris moved to strike out Dec^r & insert May. It might frequently happen that our measures ought to be influenced by those in Europe, which were generally planned during the Winter and of which intelligence would arrive in the Spring. M^r Madison 2^{ded} the motion, he preferred May to Dec^r because the latter would require the travelling to & from the seat of Gov^t in the most inconvenient seasons of the year. M^r Wilson. The Winter is the most convenient season for business. M^r Elseworth. The summer will interfere too much with private business, that of almost all the probable members of the Legislature being more or less connected with agriculture. M^r Randolph. The time is of no great moment now, as the Legislature can vary it. On looking into the Constitutions of the States, he found that the times of their elections with which the election of the Nat^l Representatives would no doubt be made to coincide, would suit better with Dec^r than May. And it was advisable to render our innovations as little incommodious as possible. On the question for "May" instead of "Dec^r" N. H. no. Mass. no. C^t no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. M^r Read moved to insert after the word "Senate," the words, "subject to the Negative to be hereafter provided." His object was to give an absolute Negative to the Executive--He considered this as so essential to the Constitution, to the preservation of liberty, & to the public welfare, that his duty compelled him to make the Motion. M^r Gov^r Morris 2^{ded} him. And on the question N. H. no. Mass. no. C^t no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Rutlidge. Altho' it is agreed on all hands that an annual meeting of the Legislature should be made necessary, yet that point seems not to be free from doubt as the clause stands. On this suggestion, "Once at least in every year," were inserted, nem. con. Art. III with the foregoing alterations was ag^d to nem. con., and is as follows: "The Legislative power shall be vested in a Congress to consist of 2 separate & distinct bodies of men; a House of Rep^s & a Senate. The Legislature shall meet at least once in every year, and such meeting shall be on the 1^{st} Monday in Dec^r unless a different day shall be appointed by law." "Article IV. Sect. 1. taken up." M^r Gov^r Morris moved to strike out the last member of the section beginning with the words "qualifications of Electors," in order that some other provision might be substituted which w^d restrain the right of suffrage to freeholders. M^r Fitzsimons 2^{ded} the motion. M^r Williamson was opposed to it. M^r Wilson. This part of the Report was well considered by the Committee, and he did not think it could be changed for the better. It was difficult to form any uniform rule of qualifications for all the States. Unnecessary innovations he thought too should be avoided. It would be very hard & disagreeable for the same persons at the same time, to vote for representatives in the State Legislature and to be excluded from a vote for those in the Nat^l Legislature. M^r Gov^r Morris. Such a hardship would be neither great nor novel. The people are accustomed to it and not dissatisfied with it, in several of the States. In some the qualifications are different for the choice of the Gov^r & Representatives; In others for different Houses of the Legislature. Another objection ag^{st} the clause as it stands is that it makes the qualifications of the Nat^l Legislature depend on the will of the States, which he thought not proper. M^r Elseworth. thought the qualifications of the electors stood on the most proper footing. The right of suffrage was a tender point, and strongly guarded by most of the State Constitutions. The people will not readily subscribe to the Nat^l Constitution if it should subject them to be disfranchised. The States are the best Judges of the circumstances & temper of their own people. Col. Mason. The force of habit is certainly not attended to by those Gentlemen who wish for innovations on this point. Eight or nine States have extended the right of suffrage beyond the freeholders. What will the people there say, if they should be disfranchised. A power to alter the qualifications would be a dangerous power in the hands of the Legislature. M^r Butler. There is no right of which the people are more jealous than that of suffrage. Abridgments of it tend to the same revolution as in Holland where they have at length thrown all power into the hands of the Senates, who fill up vacancies themselves, and form a rank aristocracy. M^r Dickinson. had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the Country. He considered them as the best guardians of liberty; And the restriction of the right to them as a necessary defence ag^{st} the dangerous influence of those multitudes without property & without principle with which our Country like all others, will in time abound. As to the unpopularity of the innovation it was in his opinion chimerical. The great mass of our Citizens is composed at this time of freeholders, and will be pleased with it. M^r Elseworth. How shall the freehold be defined? Ought not every man who pays a tax, to vote for the representative who is to levy & dispose of his money? Shall the wealthy merchants & manufacturers, who will bear a full share of the public burthens be not allowed a voice in the imposition of them. Taxation & representation ought to go together. M^r Gov^r Morris. He had long learned not to be the dupe of words. The sound of aristocracy therefore had no effect on him. It was the thing, not the name, to which he was opposed, and one of his principal objections to the Constitution as it is now before us, is that it threatens this Country with an aristocracy. The aristocracy will grow out of the House of Representatives. Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. We should not confine our attention to the present moment. The time is not distant when this Country will abound with mechanics & manufacturers who will receive their bread from their employers. Will such men be the secure & faithful guardians of liberty? Will they be the impregnable barrier ag^{st} aristocracy?--He was as little duped by the association of the words, "taxation & Representation." The man who does not give his vote freely is not represented. It is the man who dictates the vote. Children do not vote. Why? because they want prudence, because they have no will of their own. The ignorant & the dependent can be as little trusted with the public interest. He did not conceive the difficulty of defining "freeholders" to be insuperable. Still less that the restriction could be unpopular. 9/10 of the people are at present freeholders and these will certainly be pleased with it. As to Merch^{ts}. &c. if they have wealth & value the right they can acquire it. If not they don't deserve it. Col. Mason. We all feel too strongly the remains of antient prejudices, and view things too much through a British medium. A Freehold is the qualification in England, & hence it is imagined to be the only proper one. The true idea in his opinion was that every man having evidence of attachment to & permanent common interest with the Society ought to share in all its rights & privileges. Was this qualification restrained to freeholders? Does no other kind of property but land evidence a common interest in the proprietor? does nothing besides property mark a permanent attachment. Ought the merchant, the monied man, the parent of a number of children whose fortunes are to be pursued in his own Country to be viewed as suspicious characters, and unworthy to be trusted with the common rights of their fellow Citizens. M^r Madison. the right of suffrage is certainly one of the fundamental articles of republican Government, and ought not to be left to be regulated by the Legislature. A gradual abridgment of this right has been the mode in which aristocracies have been built on the ruins of popular forms. Whether the Constitutional qualification ought to be a freehold, would with him depend much on the probable reception such a change would meet with in States where the right was now exercised by every description of people. In several of the States a freehold was now the qualification. Viewing the subject in its merits alone, the freeholders of the Country would be the safest depositories of Republican liberty. In future times a great majority of the people will not only be without landed, but any other sort of property. These will either combine, under the influence of their common situation: in which case, the rights of property & the public liberty, will not be secure in their hands: or which is more probable, they will become the tools of opulence & ambition, in which case there will be equal danger on another side. The example of England has been misconceived (by Col. Mason.) A very small proportion of the Representatives are there chosen by freeholders. The greatest part are chosen by the Cities & boroughs, in many of which the qualification of suffrage is as low as it is in any one of the U. S. and it was in the boroughs & Cities rather than the Counties, that bribery most prevailed, & the influence of the Crown on elections was most dangerously exerted.[18] [18] "Note to speech of J. M. in Convention of 1787, August 7^{th}.: "As appointments for the General Government here contemplated will, in part, be made by the State Gov^{ts}, all the Citizens in States where the right of suffrage is not limited to the holders of property, will have an indirect share of representation in the General Government. But this does not satisfy the fundamental principle that men cannot be justly bound by laws in making which they have no part. Persons & property being both essential objects of Government, the most that either can claim, is such a structure of it as will leave a reasonable security for the other. And the most obvious provision, of this double character, seems to be that of confining to the holders of property the object deemed least secure in popular Gov^{ts} the right of suffrage for one of the two Legislative branches. This is not without example among us, as well as other constitutional modifications, favouring the influence of property in the Government. But the U. S. have not reached the stage of Society in which conflicting feelings of the Class with, and the Class without property, have the operation natural to them in Countries fully peopled. The most difficult of all political arrangements is that of so adjusting the claims of the two Classes as to give security to each and to promote the welfare of all. The federal principle,--which enlarges the sphere of power without departing from the elective basis of it and controuls in various ways the propensity in small republics to rash measures & the facility of forming & executing them, will be found the best expedient yet tried for solving the problem."--Madison's Note. * * * * * "Note to the speech of J. M. on the [7^{th}.] day of [August]. "These observations (in the speech of J. M. see debates in the Convention of 1787, on the [7^{th}.] day of [August]) do not convey the speaker's more full & matured view of the subject, which is subjoined. He felt too much at the time the example of Virginia. "The right of suffrage is a fundamental Article in Republican Constitutions. The regulation of it is, at the same time, a task of peculiar delicacy. Allow the right exclusively to property, and the rights of persons may be oppressed. The feudal polity, alone sufficiently proves it. Extend it equally to all, and the rights of property, or the claims of justice, may be overruled by a majority without property or interested in measures of injustice. Of this abundant proof is afforded by other popular Gov^{ts} and is not without examples in our own, particularly in the laws impairing the obligation of contracts. "In civilized communities, property as well as personal rights is an essential object of the laws, which encourage industry by securing the enjoyment of its fruits; that industry from which property results, & that enjoyment which consists not merely in its immediate use, but in its posthumous destination to objects of choice and of kindred affection. "In a just & a free Government, therefore, the rights both of property & of persons ought to be effectually guarded. Will the former be so in case of a universal & equal suffrage? Will the latter be so in case of a suffrage confined to the holders of property? "As the holders of property have at stake all the other rights common to those without property, they may be the more restrained from infringing, as well as the less tempted to infringe the rights of the latter. It is nevertheless certain, that there are various ways in which the rich may oppress the poor; in which property may oppress liberty; and that the world is filled with examples. It is necessary that the poor should have a defence against the danger. "On the other hand, the danger to the holders of property cannot be disguised, if they be undefended against a majority without property. Bodies of men are not less swayed by interest than individuals, and are less controlled by the dread of reproach and the other motives felt by individuals. Hence the liability of the rights of property, and of the impartiality of laws affecting it, to be violated by Legislative majorities having an interest real or supposed in the injustice: Hence agrarian laws, and other leveling schemes: Hence the cancelling or evading of debts, and other violations of contracts. We must not shut our eyes to the nature of man, nor to the light of experience. Who would rely on a fair decision from three individuals if two had an interest in the case opposed to the rights of the third? Make the number as great as you please, the impartiality will not be increased; nor any further security against injustice be obtained, than what may result from the greater difficulty of uniting the wills of a greater number. "In all Gov^{ts} there is a power which is capable of oppressive exercise. In Monarchies and Aristocracies oppression proceeds from a want of sympathy & responsibility in the Gov^t towards the people. In popular Governments the danger lies in an undue sympathy among individuals composing a majority, and a want of responsibility in the majority to the minority. The characteristic excellence of the political System of the U. S. arises from a distribution and organization of its powers, which at the same time that they secure the dependence of the Gov^t on the will of the nation, provides better guards than are found in any other popular Gov^t against interested combinations of a Majority against the rights of a Minority. "The U. States have a precious advantage also in the actual distribution of property particularly the landed property; and in the universal hope of acquiring property. This latter peculiarity is among the happiest contrasts in their situation to that of the old world, where no anticipated change in this respect, can generally inspire a like sympathy with the rights of property. There may be at present, a Majority of the Nation, who are even freeholders, or the heirs or aspirants to Freeholds. And the day may not be very near when such will cease to make up a Majority of the community. But they cannot always so continue. With every admissible subdivision of the Arable lands, a populousness not greater than that of England or France will reduce the holders to a Minority. And whenever the majority shall be without landed or other equivalent property and without the means or hope of acquiring it, what is to secure the rights of property ag^{st} the danger from an equality & universality of suffrage, vesting compleat power over property in hands without a share in it: not to speak of a danger in the meantime from a dependence of an increasing number on the wealth of a few? In other Countries this dependence results in some from the relations between Landlords & Tenants in others both from that source & from the relations between wealthy capitalists and indigent labourers. In the U. S. the occurrence must happen from the last source; from the connection between the great Capitalists in Manufactures & Commerce and the numbers employed by them. Nor will accumulations of Capital for a certain time be precluded by our laws of descent & of distribution; Such being the enterprise inspired by free Institutions, that great wealth in the hands of individuals and associations may not be unfrequent. But it may be observed, that the opportunities may be diminished, and the permanency defeated by the equalizing tendency of our laws. "No free Country has ever been without parties, which are a natural offspring of Freedom. An obvious and permanent division of every people is into the owners of the soil, and the other inhabitants. In a certain sense the country may be said to belong to the former. If each landholder has an exclusive property in his share, the Body of Landholders have an exclusive property in the whole. As the Soil becomes subdivided, and actually cultivated by the owners, this view of the subject derives force from the principle of natural law, which vests in individuals an exclusive right to the portions of ground with which he has incorporated his labour & improvements. Whatever may be the rights of others derived from their birth in the Country, from their interest in the highways & other parcels left open for common use, as well as in the national edifices and monuments; from their share in the public defence, and from their concurrent support of the Gov^t, it would seem unreasonable to extend the right so far as to give them when become the majority, a power of Legislation over the landed property without the consent of the proprietors. Some barrier ag^{st} the invasion of their rights would not be out of place in a just and provident System of Gov^t. The principle of such an arrangement has prevailed in all Gov^{ts} where peculiar privileges or interests held by a part were to be secured ag^{st} violation, and in the various associations where pecuniary or other property forms the stake. In the former case a defensive right has been allowed; and if the arrangement be wrong, it is not in the defense but in the kind of privilege to be defended. In the latter case, the shares of suffrage, allotted to individuals have been with acknowledged justice apportioned more or less to their respective interests in the Common Stock. "These reflections suggest the expediency of such a modification of Gov^t as would give security to the part of the Society having most at stake and being most exposed to danger. Three modifications present themselves. "1. _Confining_ the right of suffrage to freeholders, & to such as hold an equivalent property, convertible of course into freeholds. The objection to this regulation is obvious. It violates the vital principle of free Gov^t that those who are to be bound by laws, ought to have a voice in making them. And the violation w^d be more strikingly unjust as the law makers become the minority. The regulation would be as unpropitious, also, as it would be unjust. It would engage the numerical & physical force in a constant struggle ag^{st} the public authority; unless kept down by a standing army fatal to all parties. "2. Confining the right of suffrage for one Branch to the holders of property, and for the other Branch to those without property. This arrangement which w^d give a mutual defence, where there might be mutual danger of encroachment, has an aspect of equality & fairness. But it w^d not be in fact either equal or fair, because the rights to be defended would be unequal, being on one side those of property as well as of persons, and on the other those of persons only. The temptation also to encroach tho' in a certain degree mutual, w^d be felt more strongly on one side than on the other: It would be more likely to beget an abuse of the Legislative Negative in extorting concessions at the expence of property, than the reverse. The division of the State into two Classes, with distinct & independ^t Organs of power, and without any intermingled agency whatever, might lead to contests & antipathies not dissimilar to those between the Patricians & Plebeians at Rome. "3. Confining the right of electing one Branch of the Legislature to freeholders, and admitting all others to a common right with holders of property in electing the other Branch. This w^d give a defensive power to holders of property, and to the class also without property when becoming a majority of electors, without depriving them in the meantime of a participation in the Public Councils. If the holders of property would thus have a two-fold share of representation, they w^d have at the same time a two-fold stake in it, the rights of property as well as of persons, the two-fold object of political Institutions. And if no exact & safe equilibrium can be introduced, it is more reasonable that a preponderating weight sh^d be allowed to the greater interest than to the lesser. Experience alone can decide how far the practice in this case would correspond with the Theory. Such a distribution of the right of suffrage was tried in N. York and has been abandoned whether from experienced evils, or party calculations, may possibly be a question. It is still on trial in N. Carolina, with what practical indications is not known. It is certain that the trial, to be satisfactory ought to be continued for no inconsiderable period; untill in fact the non-freeholders should be the majority. "4. Should experience or public opinion require an equal & universal suffrage for each branch of the Gov^t such as prevails generally in the U. S., a resource favorable to the rights of the landed & other property, when its possessors become the minority, may be found in an enlargement of the Election Districts for one branch of the Legislature, and an extension of its period of service. Large districts are manifestly favorable to the election of persons of general respectability, and of probable attachment to the rights of property, over competitors depending on the personal solicitation practicable on a contracted theatre. And altho' an ambitious candidate, of personal distinction, might occasionally recommend himself to popular choice by espousing a popular though unjust object, it might rarely happen to many districts at the same time. The tendency of a longer period of service would be, to render the Body more stable in its policy, and more capable of stemming popular currents taking a wrong direction, till reason & justice could regain their ascendancy. "5. Should even such a modification as the last be deemed inadmissible, and universal suffrage and very short periods of elections within contracted spheres, be required for each branch of the Gov^t, the security for the holders of property when the minority, can only be derived from the ordinary influence possessed by property, & the superior information incident to its holders; from the popular sense of justice enlightened & enlarged by a diffusive education; and from the difficulty of combining & effectuating unjust purposes throughout an extensive country; a difficulty essentially distinguishing the U. S. & even most of the individual States, from the small communities where a mistaken interest or contagious passion, could readily unite a majority of the whole under a factious leader, in trampling on the rights of the minor party. "Under every view of the subject, it seems indispensable that the Mass of Citizens should not be without a voice, in making the laws which they are to obey, & in chusing the Magistrates who are to administer them, and if the only alternative be between an equal & universal right of suffrage for each branch of the Gov^t and a confinement of the _entire_ right to a part of the Citizens, it is better that those having the greater interest at stake namely that of property & persons both, should be deprived of half their share in the Gov^t than, that those having the lesser interest, that of personal rights only, should be deprived of the whole."--Madison's Note. Doc^r Franklin. It is of great consequence that we sh^d not depress the virtue & public spirit of our common people; of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it. He related the honorable refusal of the American seamen who were carried in great numbers into the British Prisons during the war, to redeem themselves from misery or to seek their fortunes, by entering on board the Ships of the Enemies to their Country; contrasting their patriotism with a contemporary instance in which the British seamen made prisoners by the Americans, readily entered on the ships of the latter on being promised a share of the prizes that might be made out of their own Country. This proceeded he said from the different manner in which the common people were treated in America & G. Britain. He did not think that the elected had any right in any case to narrow the privileges of the electors. He quoted as arbitrary the British Statute setting forth the danger of tumultuous meetings, and under that pretext narrowing the right of suffrage to persons having freeholds of a certain value; observing that this Statute was soon followed by another under the succeeding Parliam^t subjecting the people who had no votes to peculiar labors & hardships. He was persuaded also that such a restriction as was proposed would give great uneasiness in the populous States. The sons of a substantial farmer, not being themselves freeholders, would not be pleased at being disfranchised, and there are a great many persons of that description. M^r Mercer. The Constitution is objectionable in many points, but in none more than the present. He objected to the footing on which the qualification was put, but particularly to the _mode of election_ by the people. The people can not know & judge of the characters of Candidates. The worse possible choice will be made. He quoted the case of the Senate in Virg^a as an example in point. The people in Towns can unite their votes in favor of one favorite; & by that means always prevail over the people of the Country, who being dispersed will scatter their votes among a variety of candidates. M^r Rutlidge thought the idea of restraining the right of suffrage to the freeholders a very unadvised one. It would create division among the people & make enemies of all those who should be excluded. On the question for striking out as moved by M^r Gov^r Morris, from the word "qualifications" to the end of the III article N. H. no. Mass. no. C^t no. P^a no. Del. ay. M^d div^d. V^a no. N. C. no. S. C. no. Geo. not pres^t. Adjourned WEDNESDAY AUG^{ST} 8. IN CONVENTION Art: IV. sect. 1.--M^r Mercer expressed his dislike of the whole plan, and his opinion that it never could succeed. M^r Ghorum. he had never seen any inconveniency from allowing such as were not freeholders to vote, though it had long been tried. The elections in Phil^a, N. York & Boston where the Merchants & Mechanics vote are at least as good as those made by freeholders only. The case in England was not accurately stated yesterday (by M^r Madison). The Cities & large towns are not the seat of Crown influence & corruption. These prevail in the Boroughs, and not on account of the right which those who are not freeholders have to vote, but of the smallness of the number who vote. The people have been long accustomed to this right in various parts of America, and will never allow it to be abridged. We must consult their rooted prejudices if we expect their concurrence in our propositions. M^r Mercer did not object so much to an election by the people at large including such as were not freeholders, as to their being left to make their choice without any guidance. He hinted that Candidates ought to be nominated by the State Legislatures. On the question for agreeing to Art: IV--Sect, 1 it pass^d nem. con. Art. IV. Sect. 2. taken up. Col. Mason was for opening a wide door for emigrants; but did not chuse to let foreigners and adventurers make laws for us & govern us. Citizenship for three years was not enough for ensuring that local knowledge which ought to be possessed by the Representative. This was the principal ground of his objection to so short a term. It might also happen that a rich foreign Nation, for example Great Britain, might send over her tools who might bribe their way into the Legislature for insidious purposes. He moved that "seven" years instead of "three," be inserted. M^r Gov^r Morris 2^{ded} the Motion, & on the question, all the States agreed to it except Connecticut. M^r Sherman moved to strike out the word "resident" and insert "inhabitant," as less liable to misconstruction. M^r Madison 2^{ded} the motion, both were vague, but the latter least so in common acceptation, and would not exclude persons absent occasionally for a considerable time on public or private business. Great disputes had been raised in Virg^a concerning the meaning of residence as a qualification of Representatives which were determined more according to the affection or dislike to the man in question, than to any fixt interpretation of the word. M^r Wilson preferred "inhabitant." M^r Gov^r Morris, was opposed to both and for requiring nothing more than a freehold. He quoted great disputes in N. York occasioned by these terms, which were decided by the arbitrary will of the majority. Such a regulation is not necessary. People rarely chuse a nonresident--It is improper as in the 1^{st} branch, _the people at large_, not the _States_, are represented. M^r Rutlidge urged & moved, that a residence of 7 years sh^d be required in the State Wherein the Member sh^d be elected. An emigrant from N. England to S. C. or Georgia would know little of its affairs and could not be supposed to acquire a thorough knowledge in less time. M^r Read reminded him that we were now forming a _Nat^l_ Gov^t and such a regulation would correspond little with the idea that we were one people. M^r Wilson. enforced the same consideration. M^r Madison suggested the case of new States in the West, which could have perhaps no representation on that plan. M^r Mercer. Such a regulation would present a greater alienship among the States than existed under the old federal system. It would interweave local prejudices & State distinctions in the very Constitution which is meant to cure them. He mentioned instances of violent disputes raised in Maryland concerning the term "residence." M^r Elseworth thought seven years of residence was by far too long a term: but that some fixt term of previous residence would be proper. He thought one year would be sufficient, but seemed to have no objection to three years. M^r Dickinson proposed that it should read "inhabitant actually resident for ---- years." This would render the meaning less indeterminate. M^r Wilson. If a short term should be inserted in the blank, so strict an expression might be construed to exclude the members of the Legislature, who could not be said to be actual residents in their States whilst at the Seat of the Gen^l Government. M^r Mercer. It would certainly exclude men, who had once been inhabitants, and returning from residence elsewhere to resettle in their original State; although a want of the necessary knowledge could not in such cases be presumed. M^r Mason thought 7 years too long, but would never agree to part with the principle. It is a valuable principle. He thought it a defect in the plan that the Representatives would be too few to bring with them all the local knowledge necessary. If residence be not required, Rich men of neighbouring States, may employ with success the means of corruption in some particular district and thereby get into the public Councils after having failed in their own State. This is the practice in the boroughs of England. On the question for postponing in order to consider M^r Dickinsons motion N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay. On the question for inserting "inhabitant" in place of "resident"--ag^d to nem. con. M^r Elseworth & Col. Mason move to insert "one year" for previous inhabitancy. M^r Williamson liked the Report as it stood. He thought "resident" a good eno' term. He was ag^{st} requiring any period of previous residence. New residents if elected will be most zealous to conform to the will of their constituents, as their conduct will be watched with a more jealous eye. M^r Butler & M^r Rutlidge moved "three years" instead of "one year" for previous inhabitancy. On the question for 3 years, N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. On the question for "1 year" N. H. no.--Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay. Art. IV. Sect. 2. as amended in manner preceding, was agreed to nem. con. Art. IV. Sect. 3. taken up. Gen^l Pinkney & M^r Pinkney moved that the number of Representatives allotted to S. Carol^a be "six." On the question, N. H. no. Mass. no. C^t no. N. J. no. P^a no. Delaware ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. The 3. Sect of Art: IV, was then agreed to. Art: IV. Sect. 4. taken up. M^r Williamson moved to strike out "according to the provisions hereinafter made" and to insert the words "according to the rule hereafter to be provided for direct taxation."--See Art. VII. Sect. 3. On the question for agreeing to M^r Williamson's amendment N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r King wished to know what influence the vote just passed was meant to have on the succeeding part of the Report, concerning the admission of Slaves into the rule of Representation. He could not reconcile his mind to the article if it was to prevent objections to the latter part. The admission of slaves was a most grating circumstance to his mind, & he believed would be so to a great part of the people of America. He had not made a strenuous opposition to it heretofore because he had hoped that this concession would have produced a readiness which had not been manifested, to strengthen the Gen^l Gov^t and to mark a full confidence in it. The Report under consideration had by the tenor of it, put an end to all those hopes. In two great points the hands of the Legislature were absolutely tied. The importation of slaves could not be prohibited--exports could not be taxed. Is this reasonable? What are the great objects of the Gen^l System? 1. defence ag^{st} foreign invasion. 2. ag^{st} internal sedition. Shall all the States then be bound to defend each; & shall each be at liberty to introduce a weakness which will render defence more difficult? Shall one part of the U. S. be bound to defend another part, and that other part be at liberty not only to increase its own danger, but to withhold the compensation for the burden? If slaves are to be imported shall not the exports produced by their labor, supply a revenue the better to enable the Gen^l Gov^a to defend their Masters? There was so much inequality & unreasonableness in all this, that the people of the Northern States could never be reconciled to it. No candid man could undertake to justify it to them. He had hoped that some accommodation w^d have taken place on this subject; that at least a time w^d have been limited for the importation of slaves. He never could agree to let them be imported without limitation & then be represented in the Nat^l Legislature. Indeed he could so little persuade himself of the rectitude of such a practice, that he was not sure he could assent to it under any circumstances. At all events, either slaves should not be represented, or exports should be taxable. M^r Sherman regarded the slave trade as iniquitous; but the point of representation having been settled after much difficulty & deliberation, he did not think himself bound to make opposition; especially as the present article as amended did not preclude any arrangement whatever on that point in another place of the Report. M^r Madison objected to 1 for every 40.000 inhabitants as a perpetual rule. The future increase of population if the Union sh^d be permanent, will render the number of Representatives excessive. M^r Ghorum. It is not to be supposed that the Gov^t will last so long as to produce this effect. Can it be supposed that this vast Country including the Western territory will 150 years hence remain one nation? M^r Elseworth. If the Gov^t should continue so long, alterations may be made in the Constitution in the manner proposed in a subsequent article. M^r Sherman & M^r Madison moved to insert the words "not exceeding," before the words "1 for every 40.000." which was agreed to nem. con. M^r Gov^r Morris moved to insert "free" before the word inhabitants. Much he said would depend on this point. He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of heaven on the States where it prevailed. Compare the free regions of the Middle States, where a rich & noble cultivation marks the prosperity & happiness of the people, with the misery & poverty which overspread the barren wastes of V^a Mary^d & the other States having slaves. Travel thro' y^e whole Continent & you behold the prospect continually varying with the appearance & disappearance of slavery. The moment you leave y^e E. States & enter N. York, the effects of the institution become visible, passing thro' the Jerseys & entering P^a every criterion of superior improvement witnesses the change. Proceed southw^{dly}. & every step you take thro' y^e great regions of slaves presents a desert increasing, with y^e increasing [word is illegible] proportion of these wretched beings. Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens and let them vote. Are they property? Why then is no other property included? The Houses in this city (Philad^a) are worth more than all the wretched Slaves which cover the rice swamps of South Carolina. The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Gov^t instituted for protection of the rights of mankind, than the Citizen of P^a or N. Jersey who views with a laudable horror, so nefarious a practice. He would add that Domestic slavery is the most prominent feature in the aristocratic countenance of the proposed Constitution. The vassalage of the poor has ever been the favorite offspring of Aristocracy. And What is the proposed compensation to the Northern States for a sacrifice of every principle of right, of every impulse of humanity. They are to bind themselves to march their militia for the defence of the S. States; for their defence ag^{st} those very slaves of whom they complain. They must supply vessels & seamen in case of foreign Attack. The Legislature will have indefinite power to tax them by excises, and duties on imports: both of which will fall heavier on them than on the Southern inhabitants; for the bohae tea used by a Northern freeman, will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence and the rag that covers his nakedness. On the other side the Southern States are not to be restrained from importing fresh supplies of wretched Africans, at once to increase the danger of attack, and the difficulty of defence; nay they are to be encouraged to it by an assurance of having their votes in the Nat^l Gov^t increased in proportion, and are at the same time to have their exports & their slaves exempt from all contributions for the public service. Let it not be said that direct taxation is to be proportioned to representation. It is idle to suppose that the Gen^l Gov^t can stretch its hand directly into the pockets of the people scattered over so vast a Country. They can only do it through the medium of exports imports & excises. For What then are all the sacrifices to be made? He would sooner submit himself to a tax for paying for all the negroes in the U. States, than saddle posterity with such a Constitution. M^r Dayton 2^{ded} the motion. He did it he said that his sentiments on the subject might appear whatever might be the fate of the amendment. M^r Sherman, did not regard the admission of the Negroes into the ratio of representation, as liable to such insuperable objections. It was the freemen of the South^n States who were in fact to be represented according to the taxes paid by them, and the Negroes are only included in the Estimate of the taxes. This was his idea of the matter. M^r Pinkney, considered the fisheries & the Western frontier as more burthensome to the U. S. than the slaves. He thought this could be demonstrated if the occasion were a proper one. M^r Wilson, thought the motion premature. An agreement to the clause would be no bar to the object of it. Question On motion to insert "free" before "inhabitants," N. H. no. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. On the suggestion of M^r Dickinson the words, "provided that each State shall have one representative at least,"--were added nem. con. Art. IV. Sect. 4. as amended was agreed to con. nem. Art. IV. Sect. 5. taken up. M^r Pinkney moved to strike out Sect. 5. As giving no peculiar advantage to the House of Representatives, and as clogging the Gov^t. If the Senate can be trusted with the many great powers proposed, it surely may be trusted with that of originating money bills. M^r Ghorum. was ag^{st} allowing the Senate to _originate_; but only to _amend_. M^r Gov^r Morris. It is particularly proper that the Senate sh^d have the right of originating money bills. They will sit constantly, will consist of a smaller number, and will be able to prepare such bills with due correctness; and so as to prevent delay of business in the other House. Col. Mason was unwilling to travel over this ground again. To strike out the Section, was to unhinge the compromise of which it made a part. The duration of the Senate made it improper. He does not object to that duration. On the Contrary he approved of it. But joined with the smallness of the number, it was an argument against adding this to the other great powers vested in that body. His idea of an Aristocracy was that it was the govern^t of the few over the many. An aristocratic body, like the screw in mechanics, work^g its way by slow degrees, and holding fast whatever it gains, should ever be suspected of an encroaching tendency. The purse strings should never be put into its hands. M^r Mercer, considered the exclusive power of originating Money bills as so great an advantage, that it rendered the equality of votes in the Senate ideal & of no consequence. M^r Butler was for adhering to the principle which had been settled. M^r Wilson was opposed to it on its merits without regard to the compromise. M^r Elseworth did not think the clause of any consequence, but as it was thought of consequence by some members from the larger States, he was willing it should stand. M^r Madison was for striking it out; considering it as of no advantage to the large States as fettering the Gov^t and as a source of injurious altercations between the two Houses. On the question for striking out "Sect. 5, Art. IV". N. H. no. Mass. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay. Adj^d. THURSDAY, AUG^{ST} 9. IN CONVENTION Art: IV. Sect. 6. M^r Randolph expressed his dissatisfaction at the disagreement yesterday to Sect. 5. concerning money bills, as endangering the success of the plan, and extremely objectionable in itself; and gave notice that he should move for a reconsideration of the vote. M^r Williamson said he had formed a like intention. M^r Wilson, gave notice that he sh^d move to reconsider the vote, requiring seven instead of three years of Citizenship as a qualification of candidates for the House of Representatives. Art. IV. Sec. 6. & 7. Agreed to nem. con. Art. V. Sect. 1. taken up. M^r Wilson objected to vacancies in the Senate being supplied by the Executives of the States. It was unnecessary as the Legislatures will meet so frequently. It removes the appointment too far from the people; the Executives in most of the States being elected by the Legislatures. As he had always thought the appointment of the Executives by the Legislative department wrong; so it was still more so that the Executive should elect into the Legislative department. M^r Randolph thought it necessary in order to prevent inconvenient chasms in the Senate. In some States the Legislatures meet but once a year. As the Senate will have more power & consist of a smaller number than the other House, vacancies there will be of more consequence. The Executives might be safely trusted he thought with the appointment for so short a time. M^r Elseworth. It is only said that the Executive _may_ supply vacancies. When the Legislative meeting happens to be near, the power will not be exerted. As there will be but two members from a State vacancies may be of great moment. M^r Williamson. Senators may resign or not accept. This provision is therefore absolutely necessary. On the question for striking out "vacancies shall be supplied by the Executives" N. H. no. Mass. no. C^t no. N. J. no. P^a ay. M^d div^d. V^a no. N. C. no. S. C. no. Geo. no. M^r Williamson moved to insert after "vacancies shall be supplied by the Executives," the following words "unless other provision shall be made by the Legislature" (of the State). M^r Elseworth. He was willing to trust the Legislature, or the Executive of a State, but not to give the former a discretion to refer appointments for the Senate to whom they pleased. Question on M^r Williamson's motion N. H. no. Mass. no. C^t no. N. J. no. P^a no. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay. M^r Madison in order to prevent doubts whether resignations could be made by Senators, or whether they could refuse to accept, moved to strike out the words after "vacancies," & insert the words "happening by refusals to accept, resignations or otherwise, may be supplied by the Legislature of the State in the representation of which such vacancies shall happen, or by the Executive thereof until the next meeting of the Legislature." M^r Gov^r Morris this is absolutely necessary, otherwise, as members chosen into the Senate are disqualified from being appointed to any office by Sect. 9. of this art: it will be in the power of a Legislature by appointing a man a Senator ag^{st} his consent, to deprive the U. S. of his services. The motion of M^r Madison was agreed to nem. con. M^r Randolph called for division of the Section, so as to leave a distinct question on the last words "each member shall have one vote." He wished this last sentence to be postponed until the reconsideration should have taken place on Sect. 5. Art. IV. concerning money bills. If that section should not be reinstated his plan would be to vary the representation in the Senate. M^r Strong concurred in M^r Randolph's ideas on this point. M^r Read did not consider the section as to money bills of any advantage to the larger States and had voted for striking it out as being viewed in the same light by the larger States. If it was considered by them as of any value, and as a condition of the equality of votes in the Senate, he had no objection to its being re-instated. M^r Wilson--M^r Elseworth & M^r Madison urged that it was of no advantage to the larger States, and that it might be a dangerous source of contention between the two Houses. All the principal powers of the Nat^l Legislature had some relation to money. Doc^r Franklin, considered the two clauses, the originating of money bills, and the equality of votes in the Senate, as essentially connected by the compromise which had been agreed to. Col. Mason said this was not the time for discussing this point. When the originating of money bills shall be reconsidered, he thought it could be demonstrated that it was of essential importance to restrain the right to the House of Representatives the immediate choice of the people. M^r Williamson. The State of N. C. had agreed to an equality in the Senate, merely in consideration that money bills should be confined to the other House: and he was surprised to see the smaller States forsaking the condition on which they had received their equality. Question on the section 1. down to the last sentence N. H. ay. Mass. no. C^t ay. N. J. ay. P^a[19] no. Del. ay. M^d ay. Virg^a ay. N. C. no. S. C. div^d. Geo. ay. [19] "In the printed Journal Pennsylvania ay."--Madison's Note. M^r Randolph moved that the last sentence "each member shall have one vote," be postponed. It was observed that this could not be necessary; as in case the sanction as to originating money bills should not be reinstated, and a revision of the Constitution should ensue, it w^d still be proper that the members should vote per Capita. A postponement of the preceding sentence allowing to each State 2 members w^d have been more proper. M^r Mason, did not mean to propose a change of this mode of voting per capita in any event. But as there might be other modes proposed, he saw no impropriety in postponing the sentence. Each State may have two members, and yet may have unequal votes. He said that unless the exclusive originating of money bills should be restored to the House of Representatives, he should, not from obstinacy but duty and conscience, oppose throughout the equality of Representation in the Senate. M^r Gov^r Morris. Such declarations were he supposed, addressed to the smaller States in order to alarm them for their equality in the Senate, and induce them ag^{st} their judgments, to concur in restoring the section concerning money bills. He would declare in his turn that as he saw no prospect of amending the Constitution of the Senate & considered the section relating to money bills as intrinsically bad, he would adhere to the section establishing the equality at all events. M^r Wilson. It seems to have been supposed by some that the section concerning money bills is desirable to the large States. The fact was that two of those States (P^a & V^a) had uniformly voted ag^{st} it without reference to any other part of the system. M^r Randolph, urged as Col. Mason had done that the sentence under consideration was connected with that relating to Money bills, and might possibly be affected by the result of the motion for reconsidering the latter. That the postponement was therefore not improper. Question for postponing "each member shall have one vote," N. H. div^d. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. The words were then agreed to as part of the section. M^r Randolph then gave notice that he should move to reconsider this whole Sect: 1. Art. V. as connected with the 5. Sect. Art. IV. as to which he had already given such notice. Art. V. Sect. 2^d taken up. M^r Gov^r Morris moved to insert after the words, "immediately after," the following "they shall be assembled in consequence of," which was agreed to nem. con. as was then the whole sect. 2. Art: V. Sect. 3. taken up. M^r Gov^r Morris moved to insert 14 instead of 4 years citizenship as a qualification for Senators: urging the danger of admitting strangers into our public Councils. M^r Pinkney 2^d him. M^r Elseworth, was opposed to the motion as discouraging meritorious aliens from emigrating to this Country. M^r Pinkney. As the Senate is to have the power of making treaties & managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments. He quoted the jealousy of the Athenians on this subject who made it death for any stranger to intrude his voice into their Legislative proceedings. Col. Mason highly approved of the policy of the motion. Were it not that many not natives of this Country had acquired great merit during the revolution, he should be for restraining the eligibility into the Senate, to natives. M^r Madison was not averse to some restrictions on this subject; but could never agree to the proposed amendment. He thought any restriction however in the _Constitution_ unnecessary, and improper, unnecessary; because the Nat^l Legisl^{re} is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence or conditions of enjoying different privileges of Citizenship: Improper; because it will give a tincture of illiberality to the Constitution: because it will put it out of the power of the Nat^l Legislature even by special acts of naturalization to confer the full rank of Citizens on meritorious strangers & because it will discourage the most desirable class of people from emigrating to the U. S. Should the proposed Constitution have the intended effect of giving stability & reputation to our Gov^{ts} great numbers of respectable Europeans; men who love liberty and wish to partake its blessings, will be ready to transfer their fortunes hither. All such would feel the mortification of being marked with suspicious incapacitations though they s^d not covet the public honors. He was not apprehensive that any dangerous number of strangers would be appointed by the State Legislatures, if they were left at liberty to do so: nor that foreign powers would make use of strangers as instruments for their purposes. Their bribes would be expended on men whose circumstances would rather stifle than excite jealousy & watchfulness in the public. M^r Butler was decidedly opposed to the admission of foreigners without a long residence in the Country. They bring with them, not only attachments to other Countries; but ideas of Gov^t so distinct from ours that in every point of view they are dangerous. He acknowledged that if he himself had been called into public life within a short time after his coming to America, his foreign habits opinions & attachments would have rendered him an improper agent in public affairs. He mentioned the great strictness observed in Great Britain on this subject. Doc^r Franklin was not against a reasonable time, but should be very sorry to see any thing like illiberality inserted in the Constitution. The people in Europe are friendly to this Country. Even in the Country with which we have been lately at war, we have now & had during the war, a great many friends not only among the people at large but in both houses of Parliament. In every other Country in Europe all the people are our friends. We found in the course of the Revolution, that many strangers served us faithfully, and that many natives took part ag^{st} their Country. When foreigners after looking about for some other Country in which they can obtain more happiness, give a preference to ours, it is a proof of attachment which ought to excite our confidence & affection. M^r Randolph did not know but it might be problematical whether emigrations to this Country were on the whole useful or not: but he could never agree to the motion for disabling them for 14 years to participate in the public honours. He reminded the Convention of the language held by our patriots during the Revolution, and the principles laid down in all our American Constitutions. Many foreigners may have fixed their fortunes among us under the faith of these invitations. All persons under this description, with all others who would be affected by such a regulation, would enlist themselves under the banners of hostility to the proposed System. He would go as far as seven years, but no further. M^r Wilson said he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very Constitution, which he had shared in the trust of making. He remarked the illiberal complexion which the motion would give to the System & the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement & mortification they must feel from the degrading discrimination now proposed. He had himself experienced this mortification. On his removal into Maryland, he found himself, from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he assuredly did not desire & would not have accepted the offices to which they related. To be appointed to a place may be matter of indifference. To be incapable of being appointed, is a circumstance grating and mortifying. M^r Gov^r Morris. The lesson we are taught is that we should be governed as much by our reason, and as little by our feelings as possible. What is the language of Reason on this subject? That we should not be polite at the expence of prudence. There was a moderation in all things. It is said that some tribes of Indians, carried their hospitality so far as to offer to strangers their wives & daughters. Was this a proper model for us? He would admit them to his house, he would invite them to his table, would provide for them comfortable lodgings; but would not carry the complaisance so far as, to bed them with his wife. He would let them worship at the same altar, but did not choose to make Priests of them. He ran over the privileges which emigrants would enjoy among us, though they should be deprived of that of being eligible to the great offices of Government; observing that they exceeded the privileges allowed to foreigners in any part of the world; and that as every Society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted, there could be no room for complaint. As to those philosophical gentlemen, those Citizens of the World as they called themselves, He owned he did not wish to see any of them in our public Councils. He would not trust them. The men who can shake off their attachments to their own Country can never love any other. These attachments are the wholesome prejudices which uphold all Governments. Admit a Frenchman into your Senate, and he will study to increase the commerce of France: an Englishman, he will feel an equal bias in favor of that of England. It has been said that The Legislatures will not chuse foreigners, at least improper ones. There was no knowing what Legislatures would do. Some appointments made by them, proved that every thing ought to be apprehended from the cabals practised on such occasions. He mentioned the case of a foreigner who left this State in disgrace, and worked himself into an appointment from another to Congress. Question on the motion of M^r Gov^r Morris to insert 14 in place of 4 years N.H. ay. Mass. no. C^t no. N.J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. On 13 years, moved by M^r Gov^r Morris N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. On 10 years moved by Gen^l Pinkney N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. D^r Franklin reminded the Convention that it did not follow from an omission to insert the restriction in the Constitution that the persons in question w^d be actually chosen into the Legislature. M^r Rutlidge. 7 years of Citizenship have been required for the House of Representatives. Surely a longer time is requisite for the Senate, which will have more power. M^r Williamson. It is more necessary to guard the Senate in this case than the other House. Bribery & cabal can be more easily practised in the choice of the Senate which is to be made by the Legislatures composed of a few men, than of the House of Represent^s who will be chosen by the people. M^r Randolph will agree to 9 years with the expectation that it will be reduced to seven if M^r Wilson's motion to reconsider the vote fixing 7 years for the House of Representatives should produce a reduction of that period. On a question for 9 years N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. ay. M^d no. V^a ay. N. C. div^d. S. C. ay. Geo. ay. The term "Resident" was struck out, & "inhabitant" inserted nem. con. Art. V. Sect. 3. as amended agreed to nem. con. Sect. 4. agreed to nem. con. Article VI. Sect. 1. taken up. M^r Madison & M^r Gov^r Morris moved to strike out "each House" & to insert "the House of Representatives;" the right of the Legislatures to regulate the times & places &c. in the election of Senators being involved in the right of appointing them, which was disagreed to. Division of the question being called, it was taken on the first part down to "but their provisions concerning &c." The first part was agreed to nem. con. M^r Pinkney & M^r Rutlidge moved to strike out the remaining part viz but their provisions concerning them may at any time be altered by the Legislature of the United States. The States they contended could & must be relied on in such cases. M^r Ghorum. It would be as improper take this power from the Nat^l Legislature, as to Restrain the British Parliament from regulating the circumstances of elections, leaving this business to the Counties themselves-- M^r Madison.[20] The necessity of a Gen^l Gov^t supposes that the State Legislatures will sometimes fail or refuse to consult the common interest at the expence of their local conveniency or prejudices. The policy of referring the appointment of the House of Representatives to the people and not to the Legislatures of the States, supposes that the result will be somewhat influenced by the mode. This view of the question seems to decide that the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, sh^d all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures, and might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Nat^l Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Nat^l Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures. If the latter therefore could be trusted, their representatives could not be dangerous. 2. of Representatives elected by the same people who elect the State Legislatures; Surely then if confidence is due to the latter, it must be due to the former. It seemed as improper in principle, though it might be less inconvenient in practice, to give to the State Legislatures this great authority over the election of the Representatives of the people in the Gen^l Legislature, as it would be to give to the latter a like power over the election of their Representatives in the State Legislatures. [20] Madison wrote to Jefferson, July 18: "I have taken lengthy notes of everything that has yet passed, and mean to go on with the drudgery, if no indisposition obliges me to discontinue it. It is not possible to form any judgment of the future duration of the Session. I am led by sundry circumstances to guess that the residue of the work will not be very quickly despatched. The public mind is very impatient for ye event, and various reports are circulating which tend to inflame curiosity. I do not learn however that any discontent is expressed at the concealment; and have little doubt that the people will be as ready to receive as we shall be able to propose, a Government that will secure their liberties & happiness."--Mad. MSS. M^r King. If this power be not given to the Nat^l Legislature, their right of judging of the returns of their members may be frustrated. No probability has been suggested of its being abused by them. Altho this scheme of erecting the Gen^l Gov^t on the authority of the State Legislatures has been fatal to the federal establishment, it would seem as if many gentlemen, still foster the dangerous idea. M^r Gov^r Morris observed that the States might make false returns and then make no provisions for new elections. M^r Sherman did not know but it might be best to retain the clause, though he had himself sufficient confidence in the State Legislatures. The motion of M^r P. & M^r R. did not prevail. The word "respectively" was inserted after the word "State." On the motion of M^r Read the word "their" was struck out, & "regulations in such cases" inserted in place of "provisions concerning them" the clause then reading--"but regulations in each of the foregoing cases may at any time, be made or altered by the Legislature of the U. S." This was meant to give the Nat^l Legislature a power not only to alter the provisions of the States, but to make regulations in case the States should fail or refuse altogether. Art. VI. Sect. 1. as thus amended was agreed to nem. con. Adjourned. FRIDAY AUG^{ST} 10. IN CONVENTION Art. VI. Sect. 2. taken up. M^r Pinkney. The Committee as he had conceived were instructed to report the proper qualifications of property for the members of the Nat^l Legislature; instead of which they have referred the task to the Nat^l Legislature itself. Should it be left on this footing, the first Legislature will meet without any particular qualifications of property; and if it should happen to consist of rich men they might fix such qualifications as may be too favorable to the rich; if of poor men, an opposite extreme might be run into. He was opposed to the establishment of an undue aristocratic influence in the Constitution but he thought it essential that the members of the Legislature, the Executive, and the Judges, should be possessed of competent property to make them independent & respectable. It was prudent when such great powers were to be trusted to connect the tie of property with that of reputation in securing a faithful administration. The Legislature would have the fate of the Nation put into their hands. The President would also have a very great influence on it. The Judges would have not only important causes between Citizen & Citizen but also where foreigners are concerned. They will even be the Umpires between the U. States and individual States as well as between one State & another. Were he to fix the quantum of property which should be required, he should not think of less than one hundred thousand dollars for the President, half of that sum for each of the Judges, and in like proportion for the members of the Nat^l Legislature. He would however leave the sums blank. His motion was that the President of the U. S. the Judges, and members of the Legislature should be required to swear that they were respectively possessed of a cleared unincumbered Estate to the amount of ---- in the case of the President &c &c. M^r Rutlidge seconded the motion, observing that the Committee had reported no qualifications because they could not agree on any among themselves, being embarrassed by the danger on one side of displeasing the people by making them high, and on the other of rendering them nugatory by making them low. M^r Elseworth. The different circumstances of different parts of the U. S. and the probable difference between the present and future circumstances of the whole, render it improper to have either _uniform_ or _fixed_ qualifications. Make them so high as to be useful in the S. States, and they will be inapplicable to the E. States. Suit them to the latter, and they will serve no purpose in the former. In like manner what may be accommodated to the existing State of things among us, may be very inconvenient in some future state of them. He thought for these reasons that it was better to leave this matter to the Legislative discretion than to attempt a provision for it in the Constitution. Doct^r Franklin expressed his dislike of every thing that tended to debase the spirit of the common people. If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property. Some of the greatest rogues he was ever acquainted with, were the richest rogues. We should remember the character which the Scripture requires in Rulers, that they should be men hating covetousness. This Constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich will not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from removing to this Country. The Motion of M^r Pinkney was rejected by so general a _no_, that the States were not called. M^r Madison was opposed to the Section as vesting an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Gov^t and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorized to elect. In all cases where the representatives of the people will have a personal interest distinct from that of their Constituents, there was the same reason for being jealous of them, as there was for relying on them with full confidence, when they had a common interest. This was one of the former cases. It was as improper as to allow them to fix their own wages, or their own privileges. It was a power also which might be made subservient to the views of one faction ag^{st} another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of a weaker faction. M^r Elseworth, admitted that the power was not unexceptionable; but he could not view it as dangerous. Such a power with regard to the electors would be dangerous because it would be much more liable to abuse. M^r Gov^r Morris moved to strike out "with regard to property" in order to leave the Legislature entirely at large. M^r Williamson. This would surely never be admitted. Should a majority of the Legislature be composed of any particular description of men, of lawyers for example, which is no improbable supposition, the future elections might be secured to their own body. M^r Madison observed that the British Parliam^t possessed the power of regulating the qualifications both of the electors, and the elected; and the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties. Question on the motion to strike out with regard to property N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del.[21] no. M^d no. V^a no. N. C. no. S. C. no. Geo. ay. [21] In the printed Journal Delaware did not vote--Madison's Note. M^r Rutlidge was opposed to leaving the power to the Legislature--He proposed that the qualifications should be the same as for members of the State Legislatures. M^r Wilson thought it would be best on the whole to let the Section go out. A uniform rule would probably never be fixed by the Legislature, and this particular power would constructively exclude every other power of regulating qualifications. On the question for agreeing to Art. VI. Sect. 2^d N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. M^d no. V^a no. N. C. no. S. C. no. Geo. ay. On motion of M^r Wilson to reconsider Art: IV. Sect. 2; so as to restore 3 in place of seven years of citizenship as a qualification for being elected into the House of Represent^s. N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no. Monday next was then assigned for the reconsideration; all the States being ay. except Mass^{ts}. & Georgia. Art: VI. Sect. 3. taken up. M^r Ghorum contended that less than a majority in each House should be made a Quorum, otherwise great delay might happen in business, and great inconvenience from the future increase of numbers. M^r Mercer was also for less than a majority. So great a number will put it in the power of a few by seceding at a critical moment to introduce convulsions, and endanger the Governm^t. Examples of secession have already happened in some of the States. He was for leaving it to the Legislature to fix the Quorum, as in Great Britain, where the requisite number is small & no inconveniency has been experienced. Col. Mason. This is a valuable & necessary part of the plan. In this extended Country, embracing so great a diversity of interests, it would be dangerous to the distant parts to allow a small number of members of the two Houses to make laws. The Central States could always take care to be on the Spot and by meeting earlier than the distant ones, or wearying their patience, and outstaying them, could carry such measures as they pleased. He admitted that inconveniences might spring from the secession of a small number; But he had also known good produced by an apprehension, of it. He had known a paper emission prevented by that cause in Virginia. He thought the Constitution as now moulded was founded on sound principles, and was disposed to put into it extensive powers. At the same time he wished to guard ag^{st} abuses as much as possible. If the Legislature should be able to reduce the number at all, it might reduce it as low as it pleased & the U. States might be governed by a Juncto--A majority of the number which had been agreed on, was so few that he feared it would be made an objection ag^{st} the plan. M^r King admitted there might be some danger of giving an advantage to the Central States; but he was of opinion that the public inconveniency on the other side was more to be dreaded. M^r Gov^r Morris moved to fix the quorum at 33 members in the H. of Rep^s & 14 in the Senate. This is a majority of the present number, and will be a bar to the Legislature: fix the number low and they will generally attend knowing that advantage may be taken of their absence, the Secession of a small number ought not to be suffered to break a quorum. Such events in the States may have been of little consequence. In the national Councils they may be fatal. Besides other mischiefs, if a few can break up a quorum, they may seize a moment when a particular part of the Continent may be in need of immediate aid, to extort, by threatening a secession, some unjust & selfish measure. M^r Mercer 2^{ded} the motion. M^r King said he had just prepared a motion which instead of fixing the numbers proposed by M^r Gov^r Morris as Quorums, made those the lowest numbers, leaving the Legislature at liberty to increase them or not. He thought the future increase of members would render a majority of the whole extremely cumbersome. M^r Mercer agreed to substitute M^r King's motion in place of M^r Morris's. M^r Elseworth was opposed to it. It would be a pleasing ground of confidence to the people that no law or burden could be imposed on them by a few men. He reminded the movers that the Constitution proposed to give such a discretion with regard to the number of Representatives that a very inconvenient number was not to be apprehended. The inconveniency of secessions may be guarded ag^{st} by giving to each House an authority to require the attendance of absent members. M^r Wilson concurred in the sentiments of M^r Elseworth. M^r Gerry seemed to think that some further precautions than merely fixing the quorum might be necessary. He observed that as 17 w^d be a majority of a quorum of 33, and 8 of 14, questions might by possibility be carried in the H. of Rep^s by 2 large States, and in the Senate by the same States with the aid of two small ones.--He proposed that the number for a quorum in the H. of Rep^s should not exceed 50, nor be less than 33, leaving the intermediate discretion to the Legislature. M^r King. As the quorum could not be altered with^t the concurrence of the President by less than 2/3 of each House, he thought there could be no danger in trusting the Legislature. M^r Carrol. This would be no security ag^{st} a continuance of the quorums at 33 & 14. when they ought to be increased. On question on M^r King's motion "that not less than 33 in the H. of Rep^s nor less than 14 in the Senate sh^d constitute a Quorum which may be increased by a law, on additions of the members in either House. N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Randolph & M^r Madison moved to add to the end of Art. VI. Sect. 3, "and may be authorized to compel the attendance of absent members in such manner & under such penalties as each House may provide." Agreed to by all except Pen^a which was divided. Art. VI. Sect. 3. agreed to as amended nem. con. Sect. 4. } Agreed to nem. con. Sect. 5. } M^r Madison observed that the right of expulsion (Art. VI. Sect. 6.) was too important to be exercised by a bare majority of a quorum: and in emergencies of faction might be dangerously abused. He moved that, "with the concurrence of 2/3," might be inserted between may & expel. M^r Randolph & M^r Mason approved the idea. M^r Gov^r Morris. This power may be safely trusted to a majority. To require more may produce abuses on the side of the minority. A few men from factious motives may keep in a member who ought to be expelled. M^r Carrol thought that the concurrence of 2/3 at least ought to be required. On the question requiring 2/3 in cases of expelling a member. N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a div^d. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. Art. VI. Sect. 6. as thus amended agreed to nem. con. Art: VI. Sect. 7. taken up. M^r Gov^r Morris urged that if the yeas & nays were proper at all any individual ought to be authorized to call for them; and moved an amendment to that effect.--The small States may otherwise be under a disadvantage, and find it difficult to get a concurrence of 1/5. M^r Randolph 2^{ded} y^e motion. M^r Sherman had rather strike out the yeas & nays altogether. They never have done any good, and have done much mischief. They are not proper as the reasons governing the voter never appear along with them. M^r Elseworth was of the same opinion. Col. Mason liked the Section as it stood, it was a middle way between two extremes. M^r Ghorum was opposed to the motion for allowing a single member to call the yeas & nays, and recited the abuses of it in Mass^{ts}. 1 in stuffing the journals with them on frivolous occasions. 2 in misleading the people who never know the reasons determing the votes. The motion for allowing a single member to call the yeas & nays was disag^d to nem. con. M^r Carrol. & M^r Randolph moved to strike out the words, "each House" and to insert the words, "the House of Representatives" in Sect. 7. Art. 6. and to add to the section the words "and any member of the Senate shall be at liberty to enter his dissent." M^r Gov^r Morris & M^r Wilson observed that if the minority were to have a right to enter their votes & reasons, the other side would have a right to complain, if it were not extended to them: & to allow it to both, would fill the Journals, like the records of a Court, with replications, rejoinders &c. Question on M^r Carrol's motion to allow a member to enter his dissent N. H. no. Mass. no. Con^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay. M^r Gerry moved to strike out the words "when it shall be acting in its legislative capacity" in order to extend the provision to the Senate when exercising its peculiar authorities and to insert "except such parts thereof as in their judgment require secrecy" after the words "publish them."--(It was thought by others that provision should be made with respect to these when that part came under consideration which proposed to vest those additional authorities in the Senate.) On this question for striking out the words "when acting in its legislative capacity" N. H. div^d. Mass. ay. C^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. Adjourned. SATURDAY AUG^{ST} 11 IN CONVENTION M^r Madison & M^r Rutlidge moved "that each House shall keep a journal of its proceedings, & shall publish the same from time to time; except such part of the proceedings of the Senate, when acting not in its Legislative capacity as may be judged by that House to require secrecy." M^r Mercer. This implies that other powers than legislative will be given to the Senate which he hoped would not be given. M^r Madison & M^r R's motion was disag^d to by all the States except Virg^a. M^r Gerry & M^r Sherman moved to insert after the words "publish them" the following "except such as relate to treaties & military operations." Their object was to give each House a discretion in such cases.--On this question N. H. no. Mass. ay. C^t ay. N. J. no. P^a no. Del. no. V^a no. N. C. no. S. C. no. Geo. no. M^r Elseworth. As the clause is objectionable in so many shapes, it may as well be struck out altogether. The Legislature will not fail to publish their proceedings from time to time. The people will call for it if it should be improperly omitted. M^r Wilson thought the expunging of the clause would be very improper. The people have a right to know what their Agents are doing or have done, and it should not be in the option of the Legislature to conceal their proceedings. Besides as this is a clause in the existing confederation, the not retaining it would furnish the adversaries of the reform with a pretext by which weak & suspicious minds may be easily misled. M^r Mason thought it would give a just alarm to the people, to make a conclave of their Legislature. M^r Sherman thought the Legislature might be trusted in this case if in any. Question on 1^{st} part of the section down to "_publish them_" inclusive: Agreed to nem. con. Question on the words to follow, to wit "except such parts thereof as may in their Judgment require secrecy." N. H. div^d. Mass. ay. C^t ay. N. J. ay. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. ay. The remaining part as to yeas & nays,--agreed to nem. con. Art VI. Sect. 8. taken up. M^r King remarked that the section authorized the 2 Houses to adjourn to a new place. He thought this inconvenient. The mutability of place had dishonored the federal Gov^t and would require as strong a cure as we could devise. He thought a law at least should be made necessary to a removal of the Seat of Gov^t. M^r Madison viewed the subject in the same light, and joined with M^r King in a motion requiring a law. Mr. Govern^r Morris proposed the additional alteration by inserting the words, "during the Session" &c. M^r Spaight. This will fix the seat of Gov^t at N. Y. The present Congress will convene them there in the first instance, and they will never be able to remove, especially if the Presid^t should be [a] Northern Man. M^r Gov^r Morris such a distrust is inconsistent with all Gov^t. M^r Madison supposed that a central place for the seat of Gov^t was so just and w^d be so much insisted on by the H. of Representatives, that though a law should be made requisite for the purpose, it could & would be obtained. The necessity of a central residence of the Gov^t w^d be much greater under the new than old Gov^t. The members of the new Gov^t w^d be more numerous. They would be taken more from the interior parts of the States; they w^d not like members of y^e present Cong^s come so often from the distant States by water. As the powers & objects of the new Gov^t would be far greater y^e heretofore, more private individuals w^d have business calling them to the seat of it, and it was more necessary that the Gov^t should be in that position from which it could contemplate with the most equal eye, and sympathize most equally with, every part of the nation. These considerations he supposed would extort a removal even if a law were made necessary. But in order to quiet suspicions both within & without doors, it might not be amiss to authorize the 2 Houses by a concurrent vote to adjourn at their first meeting to the most proper place, and to require thereafter, the sanction of a law to their removal. The motion was accordingly moulded into the following form: "the Legislature shall at their first assembling determine on a place at which their future sessions shall be held; neither House shall afterwards, during the session of the House of Rep^s without the consent of the other, adjourn for more than three days, nor shall they adjourn to any other place than such as shall have been fixt by law." M^r Gerry thought it would be wrong to let the Presid^t check the will of the 2 Houses on this subject at all. M^r Williamson supported the ideas of M^r Spaight. M^r Carrol was actuated by the same apprehensions. M^r Mercer, it will serve no purpose to require the two Houses at their first meeting to fix on a place. They will never agree. After some further expressions from others denoting an apprehension that the seat of Gov^t might be continued at an improper place if a law should be made necessary to a removal, and the motion above stated with another for recommitting the section had been negatived, the section was left in the shape in which it was reported as to this point. The words, "during the session of the Legislature" were prefixed to the 8^{th} section--and the last sentence "But this regulation shall not extend to the Senate when it shall exercise the powers mentioned in the ---- article" struck out. The 8^{th} section as amended was then agreed to. M^r Randolph moved according to notice to reconsider Art: IV. Sect. 5. concerning money bills which had been struck out. He argued 1. that he had not wished for this privilege whilst a proportional Representation in the Senate was in contemplation, but since an equality had been fixed in that house, the large States would require this compensation at least. 2. that it would make the plan more acceptable to the people, because they will consider the Senate as the more aristocratic body, and will expect that the usual guards ag^{st} its influence be provided according to the example in G. Britain. 3. the privilege will give some advantage to the House of Rep^s if it extends to the originating only--but still more if it restrains the Senate from amend^g. 4. he called on the smaller States to concur in the measure, as the condition by which alone the compromise had entitled them to an equality in the Senate. He signified that he should propose instead of the original section, a clause specifying that the bills in question should be for the purpose of Revenue, in order to repel y^e objection ag^{st} the extent of the words, "_raising money_," which might happen incidentally, and that the Senate should not so amend or alter as to increase or diminish the sum; in order to obviate the inconveniences urged ag^{st} a restriction of the Senate to a simple affirmation or negative. M^r Williamson 2^{ded} the motion. M^r Pinkney was sorry to oppose the opportunity gentlemen asked to have the question again opened for discussion, but as he considered it a mere waste of time he could not bring himself to consent to it. He said that notwithstanding what had been said as to the compromise, he always considered this section as making no part of it. The rule of Representation in the 1^{st} branch was the true condition of that in the 2^d branch.--Several others spoke for & ag^{st} the reconsideration, but without going into the merits.--On the Question to reconsider N. H. ay. Mass. ay. C^t ay. N. J.[22] ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. div^d. Geo. ay.--Monday was then assigned-- [22] In the printed Journal N. Jersey--no.--Madison's Note. Adj^d.[23] [23] The next day being Sunday, Madison wrote to his father: "PHILAD^A Aug^{st} 12, 1787. "HON^D SIR "I wrote to you lately inclosing a few newspapers. I now send a few more, not because they are interesting but because they may supply the want of intelligence that might be more so. The Convention reassembled at the time my last mentioned that they had adjourned to. It is not possible yet to determine the period to which the Session will be spun out. It must be some weeks from this date at least, and possibly may be computed by months. Eleven states are on the ground, and have generally been so since the second or third week of the Session. Rhode Island is one of the absent States. She has never yet appointed deputies. N. H. till of late was the other. That State is now represented. But just before the arrival of her deputies, those of N. York left us.--We have till within a few days had very cool weather. It is now pleasant, after a fine rain. Our acc^{ts} from Virg^a give us but an imperfect idea of the prospects with you. In particular places the drouth we hear has been dreadful. Gen^l Washington's neighbourhood is among the most suffering of them. I wish to know how your neighbourhood is off. But my chief anxiety is to hear that your health is re-established. The hope that this may procure me that information is the principal motive for writing it, having as you will readily see not been led to it by any thing worth communicating. With my love to my mother & the rest of the family I remain Dear Sir "Y^r aff^t son." (Mad. MSS.) Edward Carrington wrote to Madison from New York, August 11, showing the solicitude of federalist members of Congress: "... The President has been requested to write to the states unrepresented, pressing upon them the objects which require the attendance of their delegations, & urging them to come forward, amongst the objects is that of the report of the convention, which, it is supposed, is now in the State of parturition--this bantling must receive the blessing of Congress this session, or, I fear, it will expire before the new one will assemble; every experiment has its critical stages which must be taken as they occur, or the whole will fail--the peoples expectations are rising with the progress of this work, but will desert it, should it remain long with Congress--permit me to suggest one idea as to the mode of obtaining the accession of the States to the new plan of government--let the convention appoint _one_ day, say the 1^{st} of May, upon which a convention appointed by the people shall be held in each state, for the purpose of accepting or rejecting in toto, the project--supposing an act of the ordinary legislatures to be equally authentic, which would not be true, yet many reasons present themselves in favor of--special conventions--many men would be admitted who are excluded from the legislatures--the business would be taken up unclogged with any other--and it would effectually call the attention of all the people to the object as seriously affecting them. All the States being in convention at the same time, opportunities of speculating upon the views of each other would be cut off--the project should be decided upon without an attempt to alter it--you have doubtless found it difficult to reconcile the different opinions in your body--will it not be impossible then, to reconcile those which will arise amongst numerous assemblies in the different states? It is possible there never may be a general consent to the project as it goes out; but it is absolutely certain there will never be an agreement in amendments. It is the lot of but few to be able to discern the remote principles upon which their happiness & prosperity essentially depend--."--(Mad. MSS.) MONDAY, AUG^{ST} 13. IN CONVENTION Art. IV. Sect. 2. reconsidered-- M^r Wilson & M^r Randolph moved to strike out "7 years" and insert "4 years," as the requisite term of Citizenship to qualify for the House of Rep^s. M^r Wilson said it was very proper the electors should govern themselves by this consideration; but unnecessary & improper that the Constitution should chain them down to it. M^r Gerry wished that in future the eligibility might be confined to Natives. Foreign powers will intermeddle in our affairs, and spare no expence to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services. He was not singular in these ideas. A great many of the most influential men in Mass^{ts} reasoned in the same manner. M^r Williamson moved to insert 9 years instead of seven. He wished this Country to acquire as fast as possible national habits. Wealthy emigrants do more harm by their luxurious examples, than good, by the money, they bring with them. Col. Hamilton was in general ag^{st} embarrassing the Gov^t with minute restrictions. There was on one side the possible danger that had been suggested. On the other side, the advantage of encouraging foreigners was obvious & admitted. Persons in Europe of moderate fortunes will be fond of coming here where they will be on a level with the first Citizens. He moved that the section be so altered as to require merely citizenship & inhabitancy. The right of determining the rule of naturalization will then leave a discretion to the Legislature on this subject which will answer every purpose. M^r Madison seconded the motion. He wished to maintain the character of liberality which had been professed in all the Constitutions & publications of America. He wished to invite foreigners of merit & republican principles among us. America was indebted to emigration for her settlement & Prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture & the arts. There was a possible danger he admitted that men with foreign predilections might obtain appointments but it was by no means probable that it would happen in any dangerous degree. For the same reason that they would be attached to their native Country, our own people w^d prefer natives of this Country to them. Experience proved this to be the case. Instances were rare of a foreigner being elected by the people within any short space after his coming among us. If bribery was to be practised by foreign powers, it would not be attempted among the electors but among the elected, and among natives having full Confidence of the people not among strangers who would be regarded with a jealous eye. M^r Wilson cited Pennsylv^a as a proof of the advantage of encouraging emigrations. It was perhaps the youngest (except Georgia) settlem^t on the Atlantic; yet it was at least among the foremost in population & prosperity. He remarked that almost all the Gen^l officers of the Pen^a line of the late army were foreigners. And no complaint had ever been made against their fidelity or merit. Three of her deputies to the Convention (M^r R. Morris, M^r Fitzsimons & himself) were also not natives. He had no objection to Col. Hamilton's motion & would withdraw the one made by himself. M^r Butler was strenuous ag^{st} admitting foreigners into our public Councils. Question on Col. Hamilton's Motion N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. no. Md. ay. V^a ay. N. C. no. S. C. no. Geo. no. Question on M^r Williamson's motion to insert 9 years instead of seven. N. H. ay. Mass^{ts} no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. M^r Wilson renewed the motion for 4 years instead of 7; & on question N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. M^r Gov^r Morris moved to add to the end of the section (Art IV. S. 2) a proviso that the limitation of seven years should not affect the rights of any person now a Citizen. M^r Mercer 2^{ded} the motion. It was necessary he said to prevent a disfranchisement of persons who had become Citizens under and on the faith & according to the laws & Constitution from being on a level in all respects with natives. M^r Rutlidge. It might as well be said that all qualifications are disfranchisem^{ts} and that to require the age of 25 years was a disfranchisement. The policy of the precaution was as great with regard to foreigners now Citizens; as to those who are to be naturalized in future. M^r Sherman. The U. States have not invited foreigners nor pledged their faith that they should enjoy equal privileges with native Citizens. The Individual States alone have done this. The former therefore are at liberty to make any discriminations they may judge requisite. M^r Ghorum. When foreigners are naturalized it w^d seem as if they stand on an equal footing with natives. He doubted then the propriety of giving a retrospective force to the restriction. M^r Madison animadverted on the peculiarity of the doctrine of M^r Sherman. It was a subtilty by which every national engagement might be evaded. By parity of reason, Whenever our public debts, or foreign treaties become inconvenient nothing more would be necessary to relieve us from them, than to new model the Constitution. It was said that the _U. S._ as such have not pledged their faith to the naturalized foreigners, & therefore are not bound. Be it so, & that the States alone are bound. Who are to form the New Constitution by which the condition of that class of citizens is to be made worse than the other class? Are not the States y^e Agents? Will they not be the members of it? Did they not appoint this Convention? Are not they to ratify its proceedings? Will not the new Constitution be their Act? If the new Constitution then violates the faith pledged to any description of people will not the makers of it, will not the States, be the violaters? To justify the doctrine it must be said that the States can get rid of their obligation by revising the Constitution, though they could not do it by repealing the law under which foreigners held their privileges. He considered this a matter of real importance. It would expose us to the reproaches of all those who should be affected by it, reproaches which w^d soon be echoed from the other side of the Atlantic; and would unnecessarily enlist among the Adversaries of the reform a very considerable body of Citizens: We should moreover reduce every State to the dilemma of rejecting it or of violating the faith pledged to a part of its Citizens. M^r Gov^r Morris considered the case of persons under 25 years, as very different from that of foreigners. No faith could be pleaded by the former in bar of the regulation. No assurance had ever been given that persons under that age should be in all cases on a level with those above it. But with regard to foreigners among us, the faith had been pledged that they should enjoy the privileges of Citizens. If the restriction as to age had been confined to natives, & had left foreigners under 25 years, eligible in this case, the discrimination w^d have been an equal injustice on the other side. M^r Pinkney remarked that the laws of the States had varied much the terms of naturalization in different parts of America; and contended that the U. S. could not be bound to respect them on such an occasion as the present. It was a sort of recurrence to first principles. Col. Mason was struck not like (Mr. Madison) with the _peculiarity_, but the _propriety_ of the doctrine of M^r Sherman. The States have formed different qualifications themselves, for enjoying different rights of citizenship. Greater caution w^d be necessary in the outset of the Gov^t than afterwards. All the great objects w^d then be provided for. Every thing would be then set in motion. If persons among us attached to G. B. should work themselves into our Councils, a turn might be given to our affairs & particularly to our Commercial regulations which might have pernicious consequences. The Great Houses of British Merchants will spare no pains to insinuate the instruments of their views into the Gov^t. M^r Wilson read the clause in the Constitution of Pen^a giving to foreigners after two years residence all the rights whatsoever of Citizens. Combined it with the article of Confederation making the Citizens of one State Citizens of all, inferred the obligation Pen^a was under to maintain the faith thus pledged to her citizens of foreign birth, and the just complaints which her failure would authorize: He observed likewise that the Princes & States of Europe would avail themselves of such breach of faith to deter their subjects from emigration to the U. S. M^r Mercer enforced the same idea of a breach of faith. M^r Baldwin could not enter into the force of the arguments ag^{st} extending the disqualification to foreigners now Citizens. The discrimination of the place of birth, was not more objectionable than that of age which all had concurred in the propriety of. Question on the proviso of M^r Gov^r Morris in favor of foreigners now Citizens N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. no. Mary^d ay. V^t ay. N. C. no. S. C. no. Geo. no. M^r Carrol moved to insert "5 years" instead of "seven" in Sect. 2^d Art: IV N. H. no. Mass. no. C^t ay. N. J. no. P^a div^d. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. The Section (Art IV. Sec. 2.) as formerly amended was then agreed to nem. con. M^r Wilson moved that (in Art: V. Sect. 3.) 9 years be reduced to seven, which was disag^d to and the 3^d section (Art. V.) confirmed by the following vote. N. H. ay. Mass. ay. C^t no. N. J. ay. P^a no. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Art. IV. Sec. 5. being reconsidered. M^r Randolph moved that the clause be altered so as to read--"Bills for raising money for the _purpose of revenue_ or for appropriating the same shall originate in the House of Representatives and shall not be so amended or altered by the Senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation."--He would not repeat his reasons, but barely remind the members from the smaller States of the compromise by which the larger States were entitled to this privilege. Col. Mason. This amendment removes all the objections urged ag^{st} the section as it stood at first. By specifying _purposes of revenue_, it obviated the objection that the section extended to all bills under which money might incidentally arise. By authorizing amendments in the Senate it got rid of the objections that the Senate could not correct errors of any sort, & that it would introduce into the House of Rep^s the practice of tacking foreign matter to money bills. These objections being removed, the arguments in favor of the proposed restraint on the Senate ought to have their full force. 1. the Senate did not represent the _people_, but the _States_ in their political character. It was improper therefore that it should tax the people. The reason was the same ag^{st} their doing it; as it had been ag^{st} Cong^s doing it. Nor was it in any respect necessary in order to cure the evils of our Republican system. He admitted that notwithstanding the superiority of the Republican form over every other, it had its evils. The chief ones, were the danger of the majority oppressing the minority, and the mischievous influence of demagogues. The Gen^l Government of itself will cure them. As the States will not concur at the same time in their unjust & oppressive plans, the General Gov^t will be able to check & defeat them, whether they result from the wickedness of the majority, or from the misguidance of demagogues. Again, the Senate is not like the H. of Rep^s chosen frequently and obliged to return frequently among the people. They are to be chosen by the Sts for 6 years, will probably settle themselves at the seat of Gov^t will pursue schemes for their own aggrandisement--will be able by weary^g out the H. of Rep^s and taking advantage of their impatience at the close of a long Session, to extort measures for that purpose. If they should be paid as he expected would be yet determined & wished to be so, out of the Nat^l Treasury, they will particularly extort an increase of their wages. A bare negative was a very different thing from that of originating bills. The practice in Engl^d was in point. The House of Lords does not represent nor tax the people, because not elected by the people. If the Senate can originate, they will in the recess of the Legislative Sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried (to use a common phrase) for the meeting of the H. of Rep^s. He compared the case to Poyning's law--and signified that the House of Rep^s might be rendered by degrees like the Parliament of Paris, the mere depository of the decrees of the Senate. As to the compromise so much had passed on that subject that he would say nothing about it. He did not mean by what he had said to oppose the permanency of the Senate. On the contrary he had no repugnance to an increase of it--nor to allowing it a negative, though the Senate was not by its present constitution entitled to it. But in all events he would contend that the purse-strings should be in the hands of the Representatives of the people. M^r Wilson was himself directly opposed to the equality of votes granted to the Senate by its present Constitution. At the same time he wished not to multiply the vices of the system. He did not mean to enlarge on a subject which had been so much canvassed, but would remark that as an insuperable objection ag^{st} the proposed restriction of money bills to the H. of Rep^s that it would be a source of perpetual contentions where there was no mediator to decide them. The Presid^t here could not like the Executive Magistrate in England interpose by a prorogation, or dissolution. This restriction had been found pregnant with altercation in every State where the Constitution had established it. The House of Rep^s will insert other things in money bills, and by making them conditions of each other, destroy the deliberate liberty of the Senate. He stated the case of a Preamble to a money bill sent up by the House of Commons in the reign of Queen Anne, to the H. of Lords, in which the conduct of the displaced Ministry, who were to be impeached before the Lords, was condemned; the Co[~m]ons thus extorting a premature judgm^t without any hearing of the Parties to be tried, and the H. of Lords being thus reduced to the poor & disgraceful expedient of opposing to the authority of a law, a protest on their Journals ag^{st} its being drawn into precedent. If there was anything like Poynings law in the present case, it was in the attempt to vest the exclusive right of originating in the H. of Rep^s and so far he was ag^{st} it. He should be equally so if the right were to be exclusively vested in the Senate. With regard to the purse strings, it was to be observed that the purse was to have two strings, one of which was in the hands of the H. of Rep^s the other in those of the Senate. Both houses must concur in untying, and of what importance could it be which untied first, which last. He could not conceive it to be any objection to the Senate's preparing the bills, that they would have leisure for that purpose and would be in the habits of business. War, Commerce, & Revenue were the great objects of the Gen^l Government. All of them are connected with money. The restriction in favor of the H. of Represent^s would exclude the Senate from originating any important bills whatever-- M^r Gerry considered this as a part of the plan that would be much scrutinized. Taxation & representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses. In short the acceptance of the plan will inevitably fail, if the Senate be not restrained from originating money bills. M^r Govern^r Morris. All the arguments suppose the right to originate & to tax, to be exclusively vested in the Senate.--The effects commented on may be produced by a Negative only in the Senate. They can tire out the other House, and extort their concurrence in favorite measures, as well by withholding their negative, as by adhering to a bill introduced by themselves. M^r Madison thought If the substitute offered by M^r Randolph for the original section is to be adopted it would be proper to allow the Senate at least so to amend as to _diminish_ the sums to be raised. Why should they be restrained from checking the extravagance of the other House? One of the greatest evils incident to Republican Gov^t was the spirit of contention & faction. The proposed substitute, which in some respects lessened the objections ag^{st} the section, had a contrary effect with respect to this particular. It laid a foundation for new difficulties and disputes between the two houses. The word _revenue_ was ambiguous. In many acts, particularly in the regulation of trade, the object would be twofold. The raising of revenue would be one of them. How could it be determined which was the primary or predominant one; or whether it was necessary that revenue sh^d be the sole object, in exclusion even of other incidental effects. When the Contest was first opened with G. B. their power to regulate trade was admitted. Their power to raise revenue rejected. An accurate investigation of the subject afterwards proved that no line could be drawn between the two cases. The words _amend or alter_ form an equal source of doubt & altercation. When an obnoxious paragraph shall be sent down from the Senate to the House of Rep^s, it will be called an origination under the name of an amendment. The Senate may actually couch extraneous matter under that name. In these cases, the question will turn on the _degree_ of connection between the matter & object of the bill and the alteration or amendment offered to it. Can there be a more fruitful source of dispute, or a kind of dispute more difficult to be settled? His apprehensions on this point were not conjectural. Disputes had actually flowed from this source in Virg^a where the Senate can originate no bill. The words, "so as to _increase or diminish_ the sum to be raised," were liable to the same objections. In levying indirect taxes, which it seemed to be understood were to form the principal revenue of the new Gov^t the sum to be raised, would be increased or diminished by a variety of collateral circumstances influencing the consumption, in general, the consumption of foreign or of domestic articles--of this or that particular species of articles and even by the mode of collection which may be closely connected with the productiveness of a tax.--The friends of the section had argued its necessity from the permanency of the Senate. He could not see how this argum^t applied. The Senate was not more permanent now than in the form it bore in the original propositions of M^r Randolph and at the time when no objection whatever was hinted ag^{st} its originating money bills. Or if in consequence of a loss of the present question, a proportional vote in the Senate should be reinstated as has been urged as the indemnification the permanency of the Senate will remain the same.--If the right to originate be vested exclusively in the House of Rep^s either the Senate must yield ag^{st} its judgment to that House, in which case the Utility of the check will be lost--or the Senate will be inflexible & the H. of Rep^s must adapt its money bill to the views of the Senate, in which case, the exclusive right will be of no avail.--As to the Compromise of which so much had been said, he would make a single observation. There were 5 States which had opposed the equality of votes in the Senate, viz, Mass^{ts}. Penn^a Virg^a N. Carolina & South Carol^a. As a compensation for the sacrifice extorted from them on this head, the exclusive origination of money bills in the other House had been tendered. Of the five States a majority viz. Penn^a Virg^a & S. Carol^a have uniformly voted ag^{st} the proposed compensation, on its own merits, as rendering the plan of Gov^t still more objectionable. Mass^{ts} has been divided. N. Carolina alone has set a value on the compensation, and voted on that principle. What obligation then can the small States be under to concur ag^{st} their judgments in reinstating the section? M^r Dickenson. Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has given a sanction to them. This is then our guide. And has not experience verified the utility of restraining money bills to the immediate representatives of the people. Whence the effect may have proceeded he could not say: whether from the respect with which this privilege inspired the other branches of Gov^t to the H. of Co[~m]ons, or from the turn of thinking it gave to the people at large with regard to their rights, but the effect was visible & could not be doubted--Shall we oppose to this long experience, the short experience of 11 years which we had ourselves, on this subject. As to disputes, they could not be avoided any way. If both Houses should originate, each would have a different bill to which it would be attached, and for which it would contend.--He observed that all the prejudices of the people would be offended by refusing this exclusive privilege to the H. of Repres^s and these prejudices sh^d never be disregarded by us when no essential purpose was to be served. When this plan goes forth it will be attacked by the popular leaders. Aristocracy will be the watchword; the Shiboleth among its adversaries. Eight States have inserted in their Constitutions the exclusive right of originating money bills in favor of the popular branch of the Legislature. Most of them however allowed the other branch to amend. This he thought would be proper for us to do. M^r Randolph regarded this point as of such consequence, that as he valued the peace of this Country, he would press the adoption of it. We had numerous & monstrous difficulties to combat. Surely we ought not to increase them. When the people behold in the Senate, the countenance of an aristocracy; and in the president, the form at least of a little monarch, will not their alarms be sufficiently raised without taking from their immediate representatives, a right which has been so long appropriated to them.--The Executive will have more influence over the Senate, than over the H. of Rep^s Allow the Senate to originate in this Case, & that influence will be sure to mix itself in their deliberations & plans. The Declaration of War he conceived ought not to be in the Senate composed of 26 men only, but rather in the other House. In the other House ought to be placed the origination of the means of war. As to Commercial regulations which may involve revenue, the difficulty may be avoided by restraining the definition to bills, for the _mere_ or _sole_, purpose of raising revenue. The Senate will be more likely to be corrupt than the H. of Rep^s and should therefore have less to do with money matters. His principal object however was to prevent popular objections against the plan, and to secure its adoption. M^r Rutlidge. The friends of this motion are not consistent in their reasoning. They tell us that we ought to be guided by the long experience of G. B. & not our own experience of 11 years; and yet they themselves propose to depart from it. The _H. of Co[~m]ons_ not only have the exclusive right of originating, but the _Lords_ are not allowed to alter or amend a money bill. Will not the people say that this restriction is but a mere tub to the whale. They cannot but see that it is of no real consequence; and will be more likely to be displeased with it as an attempt to bubble them, than to impute it to a watchfulness over their rights. For his part, he would prefer giving the exclusive right to the Senate, if it was to be given exclusively at all. The Senate being more conversant in business, and having more leisure, will digest the bills much better, and as they are to have no effect, till examined & approved by the H. of Rep^s there can be no possible danger. These clauses in the Constitutions of the States had been put in through a blind adherence to the British model. If the work was to be done over now, they would be omitted. The experiment in S. Carolina, where the Senate can originate or amend money bills, has shewn that it answers no good purpose; and produces the very bad one of continually dividing & heating the two houses. Sometimes indeed if the matter of the amendment of the Senate is pleasing to the other House they wink at the encroachment; if it be displeasing, then the Constitution is appealed to. Every Session is distracted by altercations on this subject. The practice now becoming frequent is for the Senate not to make formal amendments; but to send down a schedule of the alterations which will procure the bill their assent. M^r Carrol. The most ingenious men in Mary^d are puzzled to define the case of money bills, or explain the Constitution on that point, tho it seemed to be worded with all possible plainness & precision. It is a source of continual difficulty & squabble between the two houses. M^r McHenry[24] mentioned an instance of extraordinary subterfuge, to get rid of the apparent force of the Constitution. [24] "Mr. McHenry was bred a physician, but he afterwards turned Soldier and acted as Aid to Gen^l Washington and the Marquis de la Fayette. He is a Man of Specious talents, with nothing of genious to improve them. As a politician there is nothing remarkable in him, nor has he any of the graces of the Orator. He is however, a very respectable young Gentleman, and deserves the honor which his country has bestowed on him. Mr. McHenry is about 32 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 330. On Question on the first part of the motion as to the exclusive originating of Money bills in the H. of Rep^s N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. Virg^a ay. M^r Blair & M^r M. no. M^r R, Col. Mason and Gen^l Washington[25] ay. N. C. ay. S. C. no. Geo. no. [25] He disapproved & till now voted ag^{st} the exclusive privilege, he gave up his judgment he said because it was not of very material weight with him & was made an essential point with others who if disappointed, might be less cordial in other points of real weight.--Madison's Note. Question on Originating by H. of Rep^s & _amending_ by Senate, as reported Art IV. Sect. 5. N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a[26] ay. N. C. ay. S. C. no. Geo. no. [26] In the printed Journ Virg^a--no.--Madison's Note. Question on the last clause of Sect. 5, Art: IV--viz "No money shall be drawn from the Public Treasury, but in pursuance of _appropriations_ that shall originate in the House of Rep^s. It passed in the negative-- N. H. no. Mas. ay. Con. no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. Adj^d. TUESDAY AUG. 14[27]. IN CONVENTION [27] General Henry Knox wrote to Washington from New York under date of August 14th: "Influenced by motives of delicacy I have hitherto forborne the pleasure my dear Sir of writing to you since my return from Philadelphia. "I have been apprehensive that the stages of the business of the convention, might leak out, and be made an ill use of, by some people. I have therefore been anxious that you should escape the possibility of imputation. But as the subjects seem now to be brought to a point, I take the liberty to indulge myself in communicating with you. "Although I frankly confess that the existence of the State governments is an insuperable evil in a national point of view, yet I do not well see how in this stage of the business they could be annihilated--and perhaps while they continue the frame of government could not with propriety be much higher toned than the one proposed. It is so infinitely preferable to the present constitution, and gives such a bias to a proper line of conduct in future that I think all men anxious for a national government should zealously embrace it. "The education, genius, and habits of men on this continent are so various even at this moment, and of consequence their views of the same subject so different, that I am satisfied with the result of the convention, although it is short of my wishes and of my judgment. "But when I find men of the purest intentions concur in embracing a system which on the highest deliberation, seems to be the best which can be obtained, under present circumstances, I am convinced of the propriety of its being strenuously supported by all those who have wished for a national republic of higher and more durable powers. "I am persuaded that the address of the convention to accompany their proposition will be couched in the most persuasive terms. "I feel anxious that there should be the fullest representation in Congress, in order that the propositions should receive their warmest concurrence and strongest impulse...."--Wash. MSS. Article VI. Sect. 9. taken up. M^r Pinkney argued that the making the members ineligible to offices was _degrading_ to them, and the more improper as their election into the Legislature implied that they had the confidence of the people; that it was _inconvenient_, because the Senate might be supposed to contain the fittest men. He hoped to see that body become a School of public Ministers, a nursery of Statesmen: that it was _impolitic_, because the Legislature would cease to be a magnet to the first talents and abilities. He moved to postpone the section in order to take up the following proposition viz--"the members of each House shall be incapable of holding any office under the U. S. for which they or any of others for their benefit receive any salary, fees, or emoluments of any kind--and the acceptance of such office shall vacate their seats respectively." Gen^s Mifflin[28] 2^{ded} the motion. [28] "General Mifflin is well known for the activity of his mind, and the brilliancy of his parts. He is well-informed and a graceful Speaker. The General is about 40 years of age and a very handsome man."--Pierce's Notes, _Am. Hist. Rev._, iii., 328. Col. Mason ironically proposed to strike out the whole section, as a more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the American Soil--for compleating that Aristocracy which was probably in the contemplation of some among us, and for inviting into the Legislative Service, those generous & benevolent characters who will do justice to each other's merit, by carving out offices & rewards for it. In the present state of American morals & manners, few friends it may be thought will be lost to the plan, by the opportunity of giving premiums to a mercenary & depraved ambition. M^r Mercer. It is a first principle in political science, that whenever the rights of property are secured, an aristocracy will grow out of it. Elective Governments also necessarily become aristocratic, because the rulers being few can & will draw emoluments for themselves from the many. The Governments of America will become aristocracies. They are so already. The public measures are calculated for the benefit of the Governors, not of the people. The people are dissatisfied & complain. They change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. The people gain nothing by it, but an addition of instability & uncertainty to their other evils.--Governm^{ts} can only be maintained by _force_ or _influence_. The Executive has not _force_, deprive him of influence by rendering the members of the Legislature ineligible to Executive offices, and he becomes a mere phantom of authority. The Aristocratic part will not even let him in for a share of the plunder. The Legislature must & will be composed of wealth & abilities, and the people will be governed by a Junto. The Executive ought to have a Council, being members of both Houses. Without such an influence, the war will be between the aristocracy & the people. He wished it to be between the Aristocracy & the Executive. Nothing else can protect the people ag^{st} those speculating Legislatures which are now plundering them throughout the U. States. M^r Gerry read a Resolution of the Legislature of Mass^{ts} passed before the Act of Cong^s recommending the Convention, in which her deputies were instructed not to depart from the rotation established in the 5^{th} art: of Confederation, nor to agree in any case to give to the members of Cong^s a capacity to hold offices under the Government. This he said was repealed in consequence of the Act of Cong^s with which the State thought it proper to comply in an unqualified manner. The Sense of the State however was Still the same. He could not think with M^r Pinkney that the disqualification was degrading. Confidence is the road to tyranny. As to Ministers & Ambassadors few of them were necessary. It is the opinion of a great many that they ought to be discontinued, on our part; that none may be sent among us, & that source of influence be shut up. If the Senate were to appoint Ambassadors as seemed to be intended, they will multiply embassies for their own sakes. He was not so fond of those productions as to wish to establish nurseries for them. If they are once appointed, the House of Rep^s will be obliged to provide salaries for them, whether they approve of the measures or not. If men will not serve in the Legislature without a prospect of such offices, our situation is deplorable indeed. If our best Citizens are actuated by such mercenary views we had better chuse a single despot at once. It will be more easy to satisfy the rapacity of one than of many. According to the idea of one Gentleman (M^r Mercer) our Government it seems is to be a Gov^t of plunder. In that case it certainly would be prudent to have but one rather than many to be employed in it. We cannot be too circumspect in the formation of this System. It will be examined on all sides and with a very suspicious eye. The people who have been so lately in arms ag^{st} G. B. for their liberties, will not easily give them up. He lamented the evils existing at present under our Governments, but imputed them to the faults of those in office, not to the people. The misdeeds of the former will produce a critical attention to the opportunities afforded by the new system to like or greater abuses. As it now stands it is as compleat an aristocracy as ever was framed. If great powers should be given to the Senate we shall be governed in reality by a Junto as has been apprehended. He remarked that it would be very differently constituted from Cong^s. 1. there will be but 2 deputies from each State, in Cong^s there may be 7. and are generally 5.--2. they are chosen for six years, those of Congress annually. 3. they are not subject to recall; those of Cong^s are. 4. In Congress 9 _States_ are necessary for all great purposes, here 8 _persons_ will suffice. Is it to be presumed that the people will ever agree to such a system? He moved to render the members of the H. of Rep^s as well as of the Senate ineligible not only during, but for one year after the expiration of their terms.--If it should be thought that this will injure the Legislature by keeping out of it men of abilities who are willing to serve in other offices it may be required as a qualification for other offices, that the Candidate shall have served a certain time in the Legislature. M^r Gov^r Morris. Exclude the officers of the army & navy, and you form a band having a different interest from & opposed to the civil power: you stimulate them to despise & reproach those "talking Lords who dare not face the foe." Let this spirit be roused at the end of a war, before your troops shall have laid down their arms, and though the Civil authority "be intrenched in parchment to the teeth" they will cut their way to it. He was ag^{st} rendering the members of the Legislature ineligible to offices. He was for rendering them eligible ag^n after having vacated their Seats by accepting office. Why should we not avail ourselves of their services if the people chuse to give them their confidence. There can be little danger of corruption either among the people or the Legislatures who are to be the Electors. If they say, we see their merits, we honor the men, we chuse to renew our confidence in them, have they not a right to give them a preference; and can they be properly abridged of it. M^r Williamson; introduced his opposition to the motion by referring to the question concerning "money bills." That clause he said was dead. Its Ghost he was afraid would notwithstanding haunt us. It had been a matter of conscience with him, to insist upon it as long as there was hope of retaining it. He had swallowed the vote of rejection, with reluctance. He could not digest it. All that was said on the other side was that the restriction was not _convenient_. We have now got a House of Lords which is to originate money-bills.--To avoid another _inconveniency_, we are to have a whole Legislature at liberty to cut out offices for one another. He thought a self-denying ordinance for ourselves would be more proper. Bad as the Constitution has been made by expunging the restriction on the Senate concerning money bills he did not wish to make it worse by expunging the present Section. He had scarcely seen a single corrupt measure in the Legislature of N. Carolina, which could not be traced up to office hunting. M^r Sherman. The Constitution sh^d lay as few temptations as possible in the way of those in power. Men of abilities will increase as the Country grows more populous and as the means of education are more diffused. M^r Pinkney. No State has rendered the members of the Legislature ineligible to offices. In S. Carolina the Judges are eligible into the Legislature. It cannot be supposed then that the motion will be offensive to the people. If the State Constitutions should be revised he believed restrictions of this sort w^d be rather diminished than multiplied. M^r Wilson could not approve of the section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. He considered himself as acting & responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own Judgment in a case where they authorized him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of Penn^a had not good sense enough to receive a good Government? Under this impression he should certainly follow his own Judgment which disapproved of the section. He would remark in addition to the objections urged ag^{st} it, that as one branch of the Legislature was to be appointed by the Legislatures of the States, the other by the people of the States, as both are to be paid by the States, and to be appointable to State offices, nothing seemed to be wanting to prostrate the Nat^l Legislature, but to render its members ineligible to Nat^l offices, & by that means take away its power of attracting those talents which were necessary to give weight to the Govern^t and to render it useful to the people. He was far from thinking the ambition which aspired to Offices of dignity and trust, an ignoble or culpable one. He was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards, which might engage it in the career of public service. He observed that the State of Penn^a which had gone as far as any State into the policy of fettering power, had not rendered the members of the Legislature ineligible to offices of Gov^t. M^r Elsworth did not think the mere postponement of the reward would be any material discouragement of merit. Ambitious minds will serve 2 years or 7 years in the Legislature for the sake of qualifying themselves for other offices. This he thought a sufficient security for obtaining the services of the ablest men in the Legislature, although whilst members they should be ineligible to Public offices. Besides, merit will be most encouraged, when most impartially rewarded. If rewards are to circulate only within the Legislature, merit out of it will be discouraged. M^r Mercer was extremely anxious on this point. What led to the appointment of this Convention? The corruption & mutability of the Legislative Councils of the States. If the plan does not remedy these, it will not recommend itself; and we shall not be able in our private capacities to support & enforce it: nor will the best part of our Citizens exert themselves for the purpose.--It is a great mistake to suppose that the paper we are to propose will govern the U. States. It is The men whom it will bring into the Govern^t and interest in maintaining it that is to govern them. The paper will only mark out the mode & the form. Men are the substance and must do the business. All Gov^t must be by force or influence. It is not the King of France--but 200,000 janisaries of power that govern that Kingdom. There will be no such force here; influence then must be substituted; and he would ask whether this could be done, if the members of the Legislature should be ineligible to offices of State; whether such a disqualification would not determine all the most influential men to stay at home, & prefer appointments within their respective States. M^r Wilson was by no means satisfied with the answer given by M^r Elseworth to the argument as to the discouragement of merit. The members must either go a second time into the Legislature, and disqualify themselves--or say to their Constituents, we served you before only from the mercenary view of qualifying ourselves for offices, and have^g answered this purpose we do not chuse to be again elected. M^r Gov^r Morris put the case of a war, and the Citizen the most capable of conducting it, happening to be a member of the Legislature. What might have been the consequence of such a regulation at the commencement, or even in the Course of the late contest for our liberties? On question for postponing in order to take up M^r Pinkney's motion, it was lost, N. H. ay. Mas. no. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. div^d. M^r Gov^r Morris moved to insert, after "office," except offices in the army or navy: but in that case their offices shall be vacated. M^r Broom 2^{ds} him. M^r Randolph had been & should continue uniformly opposed to the striking out of the clause; as opening a door for influence & corruption. No arguments had made any impression on him, but those which related to the case of war, and a co-existing incapacity of the fittest commanders to be employed. He admitted great weight in these, and would agree to the exception proposed by M^r Gov^r Morris. M^r Butler & M^r Pinkney urged a general postponem^t of 9. Sect. Art. VI. till it should be seen what powers would be vested in the Senate, when it would be more easy to judge of the expediency of allowing the officers of State to be chosen out of that body.--A general postponement was agreed to nem. con. Art: VI. Sect. 10. taken up--"that members be paid by their respective States." M^r Elseworth said that in reflecting on this subject he had been satisfied that too much dependence on the States would be produced by this mode of payment. He moved to strike it out and insert that they should "be paid out of the Treasury of the U. S. an allowance not exceeding ([blank]) dollars per day or the present value thereof." M^r Gov^r Morris, remarked that if the members were to be paid by the States it would throw an unequal burden on the distant States, which would be unjust as the Legislature, was to be a national Assembly. He moved that the payment be out of the Nat^l Treasury; leaving the quantum to the discretion of the Nat^l Legislature. There could be no reason to fear that they would overpay themselves. M^r Butler contended for payment by the States; particularly in the case of the Senate, who will be so long out of their respective States, that they will lose sight of their Constituents unless dependent on them for their support. M^r Langdon was ag^{st} payment by the States. There would be some difficulty in fixing the sum; but it would be unjust to oblige the distant States to bear the expence of their members in travelling to and from the Seat of Gov^t. M^r Madison. If the H. of Rep^s is to be chosen _biennially_--and the Senate to be _constantly_ dependent on the Legislatures which are chosen _annually_, he could not see any chance for that stability in the Gen^l Gov^t the want of which was a principal evil in the State Gov^{ts}. His fear was that the organization of the Gov^t supposing the Senate to be really independ^t for six years, would not effect our purpose. It was nothing more than a combination of the peculiarities of two of the State Gov^{ts} which separately had been found insufficient. The Senate was formed on the model of that of Maryl^d. The Revisionary check, on that of N. York. What the effect of a union of these provisions might be, could not be foreseen. The enlargement of the sphere of the Government was indeed a circumstance which he thought would be favorable as he had on several occasions undertaken to show. He was however for fixing at least two extremes not to be exceeded by the Nat^l Legisl^{re} in the payment of themselves. M^r Gerry. There are difficulties on both sides. The observation of M^r Butler has weight in it. On the other side, the State Legislatures may turn out the Senators by reducing their salaries. Such things have been practised. Col. Mason. It has not yet been noticed that the clause as it now stands makes the House of Represent^s also dependent on the State Legislatures: so that both houses will be made the instruments of the politics of the States whatever they may be. M^r Broom could see no danger in trusting the Gen^l Legislature with the payment of themselves. The State Legislatures had this power, and no complaint had been made of it. M^r Sherman was not afraid that the Legislature would make their own wages too high; but too low, so that men ever so fit could not serve unless they were at the same time rich. He thought the best plan would be to fix a moderate allowance to be paid out of the Nat^l Treas^y and let the States make such additions as they might judge fit. He moved that 5 dollars per day be the sum, any further emoluments to be added by the States. M^r Carrol had been much surprised at seeing this clause in the Report. The dependence of both Houses on the State Legislatures is compleat; especially as the members of the former are eligible to State offices. The States can now say: if you do not comply with our wishes, we will starve you; if you do we will reward you. The new Gov^t in this form was nothing more than a second edition of Congress in two volumes, instead of one, and perhaps with very few amendments-- M^r Dickenson took it for granted that all were convinced of the necessity of making the Gen^l Gov^t independent of the prejudices, passions, and improper views of the State Legislatures. The contrary of This was effected by the section as it stands. On the other hand there were objections ag^{st} taking a permanent standard as wheat which had been suggested on a former occasion, as well as against leaving the matter to the pleasure of the Nat^l Legislature. He proposed that an Act should be passed every 12 years by the Nat^l Legisl^{re} settling the quantum of their wages. If the Gen^l Gov^t should be left dependent on the State Legislatures, it would be happy for us if we had never met in this Room. M^r Elseworth was not unwilling himself to trust the Legislature with authority to regulate their own wages, but well knew that an unlimited discretion for that purpose would produce strong, tho' perhaps not insuperable objections. He thought changes in the value of money, provided for by his motion in the words, "or the present value thereof." M^r L. Martin. As the Senate is to represent the States, the members of it ought to be paid by the States. M^r Carrol. The Senate was to represent & manage the affairs of the whole, and not to be the advocates of State interests. They ought then not to be dependent on nor paid by the States. On the question for paying the Members of the Legislature out of the Nat^l Treasury, N. H. ay. Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. M^r Elseworth moved that the pay be fixed at 5 doll^{rs} or the present value thereof per day during their attendance & for every thirty miles in travelling to & from Congress. M^r Strong preferred 4 dollars, leaving the Sts. at liberty to make additions. On question for fixing the pay at 5 dollars. N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. M^r Dickenson proposed that the wages of the members of both houses s^d be required to be the same. M^r Broome seconded him. M^r Ghorum. this would be unreasonable. The Senate will be detained longer from home, will be obliged to remove their families, and in time of war perhaps to sit constantly. Their allowance should certainly be higher. The members of the Senates in the States are allowed more, than those of the other house. M^r Dickenson withdrew his motion. It was moved & agreed to amend the section by adding--"to be ascertained by law." The section (Art. VI. Sect. 10) as amended, agreed to nem. con. Adj^d. WEDNESDAY AUGUST 15. IN CONVENTION. Art: VI. Sect. 11. Agreed to nem. con. Art: VI. Sect 12. taken up. M^r Strong moved to amend the article so as to read--"Each House shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same and for fixing the salaries of the officers of the Gov^t which shall originate in the House of Representatives; but the Senate may propose or concur with amendments as in other cases". Col. Mason, 2^{ds} the motion. He was extremely earnest to take this power from the Senate, who he said could already sell the whole Country by means of Treaties. M^r Ghorum urged the amendment as of great importance. The Senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them. M^r Govern^r Morris opposed it as unnecessary and inconvenient. M^r Williamson, some think this restriction on the Senate essential to liberty, others think it of no importance. Why should not the former be indulged. He was for an efficient and stable Gov^t: but many would not strengthen the Senate if not restricted in the case of money bills. The friends of the Senate would therefore lose more than they would gain by refusing to gratify the other side. He moved to postpone the subject till the powers of the Senate should be gone over. M^r Rutlidge 2^{ds} the motion. M^r Mercer should hereafter be ag^{st} returning to a reconsideration of this section. He contended (alluding to M^r Mason's observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding that Treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. This was the case of Treaties in Great Britain; particularly the late Treaty of Co[~m]erce with France. Col. Mason, did not say that a Treaty would repeal a law; but that the Senate by means of treaty might alienate territory &c., without legislative sanction. The cessions of the British Islands in W. Indies by Treaty alone were an example. If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union. He wished the motion to be decided now, that the friends of it might know how to conduct themselves. On the question for postponing Sect: 12. it passed in the affirmative. N. H. ay. Mass. ay. C^t no. N. J. no. Pen^a no. Del: no. Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Madison moved that all acts before they become laws should be submitted both to the Executive and supreme Judiciary Departments, that if either of these should object 2/3 of each House, if both should object, 3/4 of each House, should be necessary to overrule the objections and give to the acts the force of law.[29] [29] Madison's Note says: "See the motion at large in the Journal of this date, page 253, and insert it here." The Journal gives it as follows: "It was moved by Mr. Madison, and seconded, to agree to the following amendment of the thirteenth section of the sixth article: "Every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law." M^r Wilson seconds the motion. M^r Pinkney opposed the interference of the Judges in the Legislative business: it will involve them in parties, and give a previous tincture to their opinions. M^r Mercer heartily approved the motion. It is an axiom that the Judiciary ought to be separate from the Legislative; but equally so that it ought to be independent of that department. The true policy of the axiom is that legislative usurpation and oppression may be obviated. He disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable. M^r Gerry. This motion comes to the same thing with what has been already negatived. Question on the motion of M^r Madison N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. ay. Mary^d ay. Virg^a ay. N. C. no. S. C. no. Geo. no. M^r Gov^r Morris regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public Credit, and the difficulty of supporting it without some strong barrier against the instability of legislative Assemblies. He suggested the idea of requiring three fourths of each house to _repeal_ laws where the President should not concur. He had no great reliance on the revisionary power as the Executive was now to be constituted (elected by Congress.) The legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. Were the National legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. The requiring 3/4 to repeal would, though not a compleat remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities. M^r Dickenson was strongly impressed with the remark of M^r Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. The Justiciary of Arragon he observed became by degrees the lawgiver. M^r Gov^r Morris, suggested the expedient of an absolute negative in the Executive. He could not agree that the Judiciary which was part of the Executive, should be bound to say that a direct violation of the Constitution was law. A controul over the legislature might have its inconveniences. But view the danger on the other side. The most virtuous Citizens will often as members of a legislative body concur in measures which afterwards in their private capacity they will be ashamed of. Encroachments of the popular branch of the Government ought to be guarded ag^{st}. The Ephori at Sparta became in the end absolute. The Report of the Council of Censors in Pennsylv^a points out the many invasions of the legislative department on the Executive numerous as the latter[30] is, within the short term of seven years, and in a State where a strong party is opposed to the Constitution, and watching every occasion of turning the public resentments ag^{st} it. If the Executive be overturned by the popular branch, as happened in England, the tyranny of one man will ensue. In Rome where the Aristocracy overturned the throne, the consequence was different. He enlarged on the tendency of the legislative Authority to usurp on the Executive and wished the section to be postponed, in order to consider of some more effectual check than requiring 2/3 only to overrule the negative of the Executive. [30] The Executive consists at this time of ab^t 20 members.--Madison's Note. M^r Sherman. Can one man be trusted better than all the others if they all agree? This was neither wise nor safe. He disapproved of Judges meddling in politics and parties. We have gone far enough in forming the negative as it now stands. M^r Carrol. When the negative to be overruled by 2/3 only was agreed to, the _quorum_ was not fixed. He remarked that as a majority was now to be the quorum, 17. in the larger, and 8 in the smaller house might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws. He thought the controuling power however of the Executive could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed. M^r Ghorum saw no end to these difficulties and postponements. Some could not agree to the form of Government before the powers were defined. Others could not agree to the powers till it was seen how the Government was to be formed. He thought a majority as large a quorum as was necessary. It was the quorum almost every where fixt in the U. States. M^r Wilson; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the Gov^t from the legislature swallowing up all the other powers. He remarked that the prejudices ag^{st} the Executive resulted from a misapplication of the adage that the parliament was the palladium of liberty. Where the Executive was really formidable, _King_ and _Tyrant_, were naturally associated in the minds of people; not _legislature_ and _tyranny_. But where the Executive was not formidable, the two last were most properly associated. After the destruction of the King in Great Britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch. He insisted that we had not guarded ag^{st} the danger on this side by a sufficient self-defensive power either to the Executive or Judiciary department. M^r Rutlidge was strenuous ag^{st} postponing; and complained much of the tediousness of the proceedings. M^r Elseworth held the same language. We grow more & more sceptical as we proceed. If we do not decide soon, we shall be unable to come to any decision. The question for postponement passed in the negative: Del: & Mary^d only being in the affirmative. M^r Williamson moved to change, "2/3 of each House" into "3/4" as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the Presid^t alone, to admitting the Judges into the business of legislation. M^r Wilson 2^{ds} the motion; referring to and repeating the ideas of M^r Carroll. On this motion for 3/4, instead of two-thirds; it passed in the affirmative. N. H. no. Mass. no. C^t ay. N. J. no. Pen^a div^d. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no. M^r Madison, observing that if the negative of the President was confined to _bills_; it would be evaded by acts under the form and name of Resolutions, votes &c., proposed that "or resolve" should be added after "_bill_" in the beginning of sect 13. with an exception as to votes of adjournment &c. After a short and rather confused conversation on the subject, the question was put & rejected, the States being as follows, N. H. no. Mass. ay. C^t no. N. J. no. Pen^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no. "_Ten_ days (Sundays excepted)" instead of "_seven_" were allowed to the President for returning bills with his objections N. H. & Mas: only voting ag^{st} it. The 13 Sect: of Art. VI as amended was then agreed to. Adjourned. THURSDAY. AUGUST 16. IN CONVENTION. M^r Randolph having thrown into a new form the motion putting votes, Resolutions &c. on a footing with Bills, renewed it as follows--"Every order resolution or vote, to which the concurrence of the Senate & House of Rep^s may be necessary (except on a question of adjournment and in the cases hereinafter mentioned) shall be presented to the President for his revision; and before the same shall have force shall be approved by him, or being disapproved by him shall be repassed by the Senate & House of Rep^s according to the rules & limitations prescribed in the case of a Bill." M^r Sherman thought it unnecessary, except as to votes taking money out of the Treasury which might be provided for in another place. On Question as moved by M^r Randolph N. H. ay. Mass. not present. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. The Amendment was made section 14. of Art. VI. Art: VII. Sect. 1. taken up. M^r L. Martin asked what was meant by the Committee of detail in the expression,--"_duties_" and "_imposts_." If the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear. M^r Wilson. _Duties_ are applicable to many objects to which the word _imposts_ does not relate. The latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties &c. M^r Carroll reminded the Convention of the great difference of interests among the States, and doubts the propriety in that point of view of letting a majority be a quorum. M^r Mason urged the necessity of connecting with the power of levying taxes duties &c., the prohibition in Sect. 4 Art. VI that no tax should be laid on exports. He was unwilling to trust to its being done in a future article. He hoped the North^n States did not mean to deny the Southern this security. It would hereafter be as desirable to the former when the latter should become the most populous. He professed his jealousy for the productions of the Southern or as he called them, the staple States. He moved to insert the following amendment: "provided that no tax duty or imposition shall be laid by the Legislature of the U. States on articles exported from any State." M^r Sherman had no objection to the proviso here, other than it would derange the parts of the report as made by the Committee, to take them in such an order. M^r Rutlidge. It being of no consequence in what order points are decided, he should vote for the clause as it stood, but on condition that the subsequent part relating to negroes should also be agreed to. M^r Governeur Morris considered such a proviso as inadmissible any where. It was so radically objectionable, that it might cost the whole system the support of some members. He contended that it would not in some cases be equitable to tax imports without taxing exports; and that taxes on exports would be often the most easy and proper of the two. M^r Madison. 1. the power of laying taxes on exports is proper in itself, and as the States cannot with propriety exercise it separately, it ought to be vested in them collectively. 2. it might with particular advantage be exercised with regard to articles in which America was not rivalled in foreign markets, as Tob^o &c. The contract between the French Farmers Gen^l and M^r Morris stipulating that if taxes s^d be laid in america on the export of Tob^o they s^d be paid by the Farmers, shewed that it was understood by them, that the price would be thereby raised in America, and consequently the taxes be paid by the European Consumer. 3. it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled N.H. Con^t N. Jer^y Del: and N. Carolina with loud complaints, as it related to imports, and they would be equally authorized by taxes by the States on exports. 4. The South^n States being most in danger and most needing naval protection, could the less complain if the burthen should be somewhat heaviest on them. 5. we are not providing for the present moment only, and time will equalize the situation of the States in this matter. He was for these reasons ag^{st} the motion. M^r Williamson considered the clause proposed ag^{st} taxes on exports as reasonable and necessary. M^r Elseworth was ag^{st} Taxing exports; but thought the prohibition stood in the most proper place, and was ag^{st} deranging the order reported by the Committee. M^r Wilson was decidedly ag^{st} prohibiting general taxes on exports. He dwelt on the injustice and impolicy of leaving N. Jersey Connecticut &c. any longer subject to the exactions of their commercial neighbours. M^r Gerry thought the legislature could not be trusted with such a power. It might ruin the Country. It might be exercised partially, raising one and depressing another part of it. M^r Gov^r Morris. However the legislative power may be formed, it will if disposed be able to ruin the Country. He considered the taxing of exports to be in many cases highly politic. Virginia has found her account in taxing Tobacco. All Countries having peculiar articles tax the exportation of them; as France her wines and brandies. A tax here on lumber, would fall on the W. Indies & punish their restrictions on our trade. The same is true of live stock and in some degree of flour. In case of a dearth in the West Indies, we may extort what we please. Taxes on exports are a necessary source of revenue. For a long time the people of America will not have money to pay direct taxes. Seize and sell their effects and you push them into Revolts. M^r Mercer was strenuous against giving Congress power to tax exports. Such taxes are impolitic, as encouraging the raising of articles not meant for exportation. The States had now a right where their situation permitted, to tax both the imports and the exports of their uncommercial neighbours. It was enough for them to sacrifice one half of it. It had been said the Southern States had most need of naval protection. The reverse was the case. Were it not for promoting the carrying trade of the North^n States, the South^n States could let the trade go into foreign bottoms, where it would not need our protection. Virginia by taxing her tobacco had given an advantage to that of Maryland. M^r Sherman. To examine and compare the States in relation to imports and exports will be opening a boundless field. He thought the matter had been adjusted, and that imports were to be subject, and exports not, to be taxed. He thought it wrong to tax exports except it might be such articles as ought not to be exported. The complexity of the business in America would render an equal tax on exports impracticable. The oppression of the uncommercial States was guarded ag^{st} by the power to regulate trade between the States. As to compelling foreigners, that might be done by regulating trade in general. The Government would not be trusted with such a power. Objections are most likely to be excited by considerations relating to taxes & money. A power to tax exports would shipwreck the whole. M^r Carrol was surprised that any objection should be made to an exception of exports from the power of taxation. It was finally agreed that the question concerning exports sh^d lie over for the place in which the exception stood in the report: Mary^d alone voting ag^{st} it. Sect: 1. (Art. VII) agreed to; M^r Gerry alone answering, no. Clause for regulating commerce with foreign nations &c. agreed to nem. con. for coining money. ag^d to nem. con. for regulating foreign coin. d^o d^o. for fixing standard of weights & measures. d^o d^o. "To establish post-offices," M^r Gerry moved to add, and post-roads. M^r Mercer 2^{ded}. & on question N.H. no. Mass. ay. C^t no. N.J. no. Pen^a no. Del. ay. M^d ay. V^a ay. N.C. no. S.C. ay. Geo. ay. M^r Gov^r Morris moved to strike out "and emit bills on the credit of the U. States"--If the United States had credit such bills would be unnecessary; if they had not, unjust & useless. M^r Butler, 2^{ds} the motion. M^r Madison, will it not be sufficient to prohibit the making them a _tender_? This will remove the temptation to emit them with unjust views. And promissory notes in that shape may in some emergencies be best. M^r Gov^r Morris, striking out the words will leave room still for notes of a _responsible_ minister which will do all the good without the mischief. The Monied interest will oppose the plan of Government, if paper emissions be not prohibited. M^r Ghorum was for striking out, without inserting any prohibition, if the words stand they may suggest and lead to the measure. Col. Mason had doubts on the subject. Cong^s he thought would not have the power unless it were expressed. Though he had a mortal hatred to paper money, yet as he could not forsee all emergencies, he was unwilling to tie the hands of the Legislature. He observed that the late war could not have been carried on, had such a prohibition existed. Mr. Ghorum. The power as far as it will be necessary or safe, is involved in that of borrowing. M^r Mercer was a friend to paper money, though in the present state & temper of America, he should neither propose nor approve of such a measure. He was consequently opposed to a prohibition of it altogether. It will stamp suspicion on the Government to deny it a discretion on this point. It was impolitic also to excite the opposition of all those who were friends to paper money. The people of property would be sure to be on the side of the plan, and it was impolitic to purchase their further attachment with the loss of the opposite class of Citizens. M^r Elseworth thought this a favorable moment to shut and bar the door against paper money. The mischiefs of the various experiments which had been made, were now fresh in the public mind and had excited the disgust of all the respectable part of America. By withholding the power from the new Govern^t more friends of influence would be gained to it than by almost any thing else. Paper money can in no case be necessary. Give the Government credit, and other resources will offer. The power may do harm, never good. M^r Randolph, notwithstanding his antipathy to paper money, could not agree to strike out the words, as he could not foresee all the occasions that might arise. M^r Wilson. It will have a most salutary influence on the credit of the U. States to remove the possibility of paper money. This expedient can never succeed whilst its mischiefs are remembered. And as long as it can be resorted to, it will be a bar to other resources. M^r Butler remarked that paper was a legal tender in no Country in Europe. He was urgent for disarming the Government of such a power. M^r Mason was still averse to tying the hands of the Legislature _altogether_. If there was no example in Europe as just remarked it might be observed on the other side, that there was none in which the Government was restrained on this head. M^r Read, thought the words, if not struck out, would be as alarming as the mark of the Beast in Revelations. M^r Langdon had rather reject the whole plan than retain the three words ("and emit bills"). On the motion for striking out N.H. ay. Mass. ay. C^t ay. N.J. no. P^a ay. Del. ay. M^d no. V^a ay.[31] N.C. ay. S.C. ay. Geo. ay. [31] This vote in the affirmative by Virg^a was occasioned by the acquiescence of M^r Madison who became satisfied that striking out the words would not disable the Gov^t from the use of public notes as far as they could be safe & proper; & would only cut off the pretext for a paper currency and particularly for making the bills a tender either for public or private debts.--Madison's Note. The clause for borrowing money, agreed to nem. con. Adj^d. FRIDAY AUGUST 17. IN CONVENTION Art. VII. Sect. 1. resumed, on the clause, "to appoint Treasurer by ballot," M^r Ghorum moved to insert "joint" before ballot, as more convenient as well as reasonable, than to require the separate concurrence of the Senate. M^r Pinkney 2^{ds} the motion. M^r Sherman opposed it as favoring the larger States. M^r Read moved to strike out the clause, leaving the appointment of the Treasurer as of other officers to the Executive. The Legislature was an improper body for appointments. Those of the State legislatures were a proof of it. The Executive being responsible would make a good choice. M^r Mercer 2^{ds} the motion of M^r Read. On the motion for inserting the word "joint" before ballot N.H. ay. Mass. ay. C^t no. N.J. no. P^a ay. M^d no. V^a ay. N.C. ay. S.C. ay. Geo. ay. Col. Mason in opposition to M^r Read's motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it. On striking out the clause as amended by inserting "Joint" N.H. no. Mass. no. C^t no. P^a ay. Del. ay. M^d ay. V^a no. N.C. no. S.C. ay. Geo. no. "To constitute inferior tribunals" agreed to nem. con. "To make rules as to captures on land & water" d^o d^o. "To declare the law and punishment of piracies and felonies &c &c." considered. M^r Madison moved to strike out "and punishment &c." M^r Mason doubts the safety of it, considering the strict rule of construction in criminal cases. He doubted also the propriety of taking the power in all these cases wholly from the States. M^r Govern^r Morris thought it would be necessary to extend the authority further, so as to provide for the punishment of counterfeiting in general. Bills of exchange for example might be forged in one State and carried into another. It was suggested by some other member that _foreign_ paper might be counterfeited by Citizens; and that it might be politic to provide by national authority for the punishment of it. M^r Randolph did not conceive that expunging "the punishment" would be a constructive exclusion of the power. He doubted only the efficacy of the word "declare." M^r Wilson was in favor of the motion. Strictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them. On motion for striking out "and punishment" as moved by M^r Madison N.H. no. Mass. ay. C^t no. P^a ay. Del. ay. M^d no. V^a ay. N.C. ay. S.C. ay. Geo. ay. M^r Gov^r Morris moved to strike out "declare the law" and insert "punish" before "piracies," and on the question. N.H. ay. Mass. ay. C^t no. P^a ay. Del. ay. M^d ay. V^a no. N.C. no. S.C. ay. Geo. ay. M^r Madison & M^r Randolph moved to insert "define &," before "punish." M^r Wilson thought "felonies" sufficiently defined by common law. M^r Dickenson concurred with M^r Wilson. M^r Mercer was in favor of the amendment. M^r Madison. Felony at common law is vague. It is also defective. One defect is supplied by Stat: of Anne as to running away with vessels which at co[~m]on law was a breach of trust only. Besides no foreign law should be a standard farther than is expressly adopted. If the laws of the States were to prevail on this subject, the Citizens of different States would be subject to different punishments for the same offence at Sea. There would be neither uniformity nor stability in the law--The proper remedy for all these difficulties was to vest the power proposed by the term "define" in the Nat^l legislature. M^r Gov^r Morris would prefer _designate_ to _define_, the latter being as he conceived, limited to the preexisting meaning. It was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies & of piracies. The motion of M^r M. & M^r R. was agreed to. M^r Elseworth enlarged the motion so as to read "to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and current coin of the U. States, and offences ag^{st} the law of Nations" which was agreed to nem. con. "To subdue a rebellion in any State, on the application of its legislature" M^r Pinkney moved to strike out, "on the application of its legislature". M^r Gov^r Morris 2^{ds}. M^r L. Martin opposed it as giving a dangerous & unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever. M^r Mercer supported the opposition of M^r Martin. M^r Elseworth proposed to add after "legislature," "or Executive." M^r Gov^r Morris. The Executive may possibly be at the head of the Rebellion. The Gen^l Gov^t should enforce obedience in all cases where it may be necessary. M^r Elseworth. In many cases The Gen^l Gov^t ought not to be able to interpose, unless called upon. He was willing to vary his motion so as to read "or without it when the legislature cannot meet." M^r Gerry was ag^{st} letting loose the myrmidons of the U. States on a State without its own consent. The States will be the best Judges in such cases. More blood would have been spilt in Mass^{ts} in the late insurrection, if the Gen^l Authority had intermeddled. M^r Langdon was for striking out as moved by M^r Pinkney. The apprehension of the national force, will have a salutary effect in preventing insurrections. M^r Randolph. If the Nat^l Legislature is to judge whether the State legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of M^r Pinkney. M^r Gov^r Morris. We are acting a very strange part. We first form a strong man to protect us, and at the same time wish to tie his hands behind him. The legislature may surely be trusted with such a power to preserve the public tranquillity. On the motion to add, "or without it (application) when the legislature cannot meet" N.H. ay. Mass. no. C^t ay. P^a div^d. Del. no. M^d no. V^a ay. N.C. div^d. S. C. ay. Geo. ay. So agreed to. M^r Madison and M^r Dickenson moved to insert as explanatory, after "State"--"against the Government thereof". There might be a rebellion ag^{st} the U. States--which was agreed to nem. con. On the clause as amended N.H. ay. Mass.[32] abs^t. C^t ay. Pen. abs^t. Del. no. M^d no. V^a ay. N.C. no. S.C. no. Georg. ay.--so it was lost. [32] In the printed Journal, Mas. no.--Madison's Note. "To make war" M^r Pinkney opposed the vesting this power in the Legislature. Its proceedings were too slow. It w^d meet but once a year, the H^s of Rep^s would be too numerous for such deliberations. The Senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in the Senate, so as to give no advantage to the large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace. M^r Butler. The Objections ag^{st} the Legislature lie in a great degree ag^{st} the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. M^r Madison and M^r Gerry moved to insert "_declare_," striking out "_make_" war; leaving to the Executive the power to repel sudden attacks. M^r Sherman thought it stood very well. The Executive sh^d be able to repel and not to commence war. "Make" is better than "declare" the latter narrowing the power too much. M^r Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war. M^r Elsworth. There is a material difference between the cases of making _war_ and making _peace_. It sh^d be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate & secret negociations. M^r Mason was ag^{st} giving the power of war to the Executive because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "_declare_" to "_make_." On the motion to insert "_declare_"--in place of "_make_," it was agreed to. N.H. no. Mass, abs^t. Con^t no.[33] P^a ay. Del. ay. M^d ay. V^a ay. N.C. ay. S.C. ay. Geo. ay. [33] On the remark by M^r King that "_make_" war might be understood to "conduct" it which was an Executive function. M^r Elsworth gave up his objection, and the vote of Con. was changed to _ay_.--Madison's Note. M^r Pinkney's motion to strike out whole clause, disag^d to without call of States. M^r Butler moved to give the Legislature the power of peace, as they were to have that of war. M^r Gerry 2^{ds} him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the U. States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature. On the motion for adding "and peace" after "war," N.H. no. Mas. no. C^t no. P^a no. Del. no. M^d no. V^a no. N.C. no. S.C. no. Geo. no. Adjourned. SATURDAY AUGUST 18. IN CONVENTION M^r Madison submitted, in order to be referred to the Committee of detail the following powers as proper to be added to those of the General Legislature: "To dispose of the unappropriated lands of the U. States." "To institute temporary Governments for new States arising therein." "To regulate affairs with the Indians as well within as without the limits of the U. States." "To exercise exclusively Legislative authority at the seat of the General Government, and over a district around the same, not exceeding ---- square miles; the Consent of the Legislature of the State or States comprising the same, being first obtained." "To grant charters of incorporation in cases where the public good may require them, and the authority of a single State may be incompetent" "To secure to literary authors their copy rights for a limited time." "To establish an University." "To encourage by premiums & provisions, the advancement of useful knowledge and discoveries." "To authorize the Executive to procure and hold for the use of the U. S. landed property for the erection of Forts, magazines, and other necessary buildings." These propositions were referred to the Committee of detail which had prepared the Report and at the same time the following which were moved by M^r Pinkney:--in both cases unanimously: "To fix and permanently establish the seat of Government of the U. S. in which they shall possess the exclusive right of soil & jurisdiction." "To establish seminaries for the promotion of literature and the arts & sciences." "To grant charters of incorporation." "To grant patents for useful inventions." "To secure to Authors exclusive rights for a certain time." "To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades and manufactures." "That funds which shall be appropriated for the payment of public Creditors, shall not during the time of such appropriation, be diverted or applied to any other purpose and that the Committee prepare a clause or clauses for restraining the Legislature of the U. S. from establishing a perpetual revenue." "To secure the payment of the public debt." "To secure all creditors under the new Constitution from a violation of the public faith when pledged by the authority of the Legislature." "To grant letters of mark and reprisal." "To regulate Stages on the post roads." M^r Mason introduced the subject of regulating the militia. He thought such a power necessary to be given to the Gen^l Government. He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The Militia ought therefore to be the more effectually prepared for the public defence. Thirteen States will never concur in any one system, if the disciplining of the Militia be left in their hands. If they will not give up the power over the whole, they probably will over a part as a select militia. He moved as an addition to the propositions just referred to the Comittee of detail, & to be referred in like manner, "a power to regulate the militia." M^r Gerry remarked that some provision ought to be made in favor of public Securities, and something inserted concerning letters of marque, which he thought not included in the power of war. He proposed that these subjects should also go to a Committee. M^r Rutlidge moved to refer a clause "that funds appropriated to public creditors should not be diverted to other purposes." M^r Mason was much attached to the principle, but was afraid such a fetter might be dangerous in time of war. He suggested the necessity of preventing the danger of perpetual revenue which must of necessity subvert the liberty of any country. If it be objected to on the principle of M^r Rutlidge's motion that public Credit may require perpetual provisions, that case might be excepted; it being declared that in other cases, no taxes should be laid for a longer term than ---- years. He considered the caution observed in Great Britain on this point as the paladium of public liberty. M^r Rutlidge's motion was referred--He then moved that a Grand Committee be appointed to consider the necessity and expediency of the U. States assuming all the State debts--A regular settlement between the Union & the several States would never take place. The assumption would be just as the State debts were contracted in the common defence. It was necessary, as the taxes on imports the only sure source of revenue were to be given up to the Union. It was politic, as by disburdening the people of the State debts it would conciliate them to the plan. M^r King and M^r Pinkney seconded the motion. (Col. Mason interposed a motion that the Committee prepare a clause for restraining perpetual revenue, which was agreed to nem. con.) M^r Sherman thought it would be better to authorize the Legislature to assume the State debts, than to say positively it should be done. He considered the measure as just and that it would have a good effect to say something about the matter. M^r Elseworth differed from M^r Sherman. As far as the State debts ought in equity to be assumed, he conceived that they might and would be so. M^r Pinkney observed that a great part of the State debts were of such a nature that although in point of policy and true equity they ought, yet would they not be viewed in the light of federal expenditures. M^r King thought the matter of more consequence than M^r Elseworth seemed to do; and that it was well worthy of commitment. Besides the considerations of justice and policy which had been mentioned, it might be remarked that the State Creditors an active and formidable party would otherwise be opposed to a plan which transferred to the Union the best resources of the States without transferring the State debts at the same time. The State Creditors had generally been the strongest foes to the impost-plan. The State debts probably were of greater amount than the federal. He would not say that it was practicable to consolidate the debts, but he thought it would be prudent to have the subject considered by a Committee. On M^r Rutlidge's motion, that a Com^e be appointed to consider of the assumption &c. N. H. no. Mass. ay. C^t ay. N. J. no. P^a div^d. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gerry's motion to provide for public securities, for stages on post roads, and for letters of marque & reprisal, were committed nem. con. M^r King suggested that all unlocated lands of particular States ought to be given up if State debts were to be assumed:--M^r Williamson concurred in the idea. A Grand Committee was appointed consisting of M^r Langdon, M^r King, M^r Sherman, M^r Livingston, M^r Clymer, M^r Dickenson, M^r M^cHenry, M^r Mason, M^r Williamson, M^r C. C. Pinkney, M^r Baldwin. M^r Rutlidge remarked on the length of the Session, the probable impatience of the public and the extreme anxiety of many members of the Convention to bring the business to an end; concluding with a motion that the Convention meet henceforward precisely at 10 Oc A.M. and that precisely at 4 Oc P.M. the President adjourn the House without motion for the purpose, and that no motion to adjourn sooner be allowed. On this question N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a no. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Elseworth observed that a Council had not yet been provided for the President. He conceived there ought to be one. His proposition was that it should be composed of the President of the Senate, the Chief Justice, and the ministers as they might be estab^d for the departments of foreign & domestic affairs, war finance and marine, who should advise but not conclude the President. M^r Pinkney wished the proposition to lie over, as notice had been given for a like purpose by M^r Gov^r Morris who was not then on the floor. His own idea was that the President sh^d be authorized to call for advice or not as he might chuse. Give him an able Council and it will thwart him; a weak one and he will shelter himself under their sanction. M^r Gerry was ag^{st} letting the heads of the Departments, particularly of finance have any thing to do in business connected with legislation. He mentioned the Chief Justice also as particularly exceptionable. These men will also be so taken up with other matters as to neglect their own proper duties. M^r Dickenson urged that the great appointments should be made by the Legislature in which case they might properly be consulted by the Executive, but not if made by the Executive himself--This subject by general consent lay over; & the House proceeded to the clause "To raise armies." M^r Ghorum moved to add "and support" after "raise." Agreed to nem. con. and then the clause was agreed to nem. con. as amended. M^r Gerry took notice that there was no check here ag^{st} standing armies in time of peace. The existing Cong^s is so constructed that it cannot of itself maintain an army. This w^d not be the case under the new system. The people were jealous on this head, and great opposition to the plan would spring from such an omission. He suspected that preparations of force were now making ag^{st} it. (he seemed to allude to the activity of the Gov^r of N. York at this crisis in disciplining the militia of that State.) He thought an army dangerous in time of peace & could never consent to a power to keep up an indefinite number. He proposed that there shall not be kept up in time of peace more than ---- thousand troops. His idea was that the blank should be filled with two or three thousand. Instead of "to build and equip fleets"--"to provide and maintain a navy" agreed to nem. con. as a more convenient definition of the power. "To make rules for the Government and regulation of the land & naval forces," added from the existing Articles of Confederation. M^r L. Martin and M^r Gerry now regularly moved "provided that in time of peace the army shall not consist of more than ---- thousand men." Gen^l Pinkney asked whether no troops were ever to be raised untill an attack should be made on us? M^r Gerry. If there be no restriction, a few States may establish a military Gov^t. M^r Williamson, reminded him of M^r Mason's motion for limiting the appropriation of revenue as the best guard in this case. M^r Langdon saw no room for M^r Gerry's distrust of the Representatives of the people. M^r Dayton. Preparations for war are generally made in peace; and a standing force of some sort may, for ought we know, become unavoidable. He should object to no restrictions consistent with these ideas. The motion of M^r Martin and M^r Gerry was disagreed to nem. con. M^r Mason moved as an additional power "to make laws for the regulation and discipline of the militia of the several States, reserving to the States the appointment of the officers." He considered uniformity as necessary in the regulation of the Militia throughout the Union. Gen^l Pinkney mentioned a case during the war in which a dissimilarity in the militia of different States had produced the most serious mischiefs. Uniformity was essential. The States would never keep up a proper discipline of their militia. M^r Elseworth was for going as far in submitting the militia to the Gen^l Government as might be necessary, but thought the motion of M^r Mason went too far. He moved that the militia should have the same arms & exercise and be under rules established by the Gen^l Gov^t when in actual service of the U. States and when States neglect to provide regulations for militia, it sh^d be regulated & established by the Legislature of U. S. The whole authority over the militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power. He thought the Gen^l Authority could not sufficiently pervade the Union for such a purpose, nor could it accommodate itself to the local genius of the people. It must be vain to ask the States to give the Militia out of their hands. M^r Sherman 2^{ds} the motion. M^r Dickenson. We are come now to a most important matter, that of the sword. His opinion was that the States never would nor ought to give up all authority over the Militia. He proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole Militia. M^r Butler urged the necessity of submitting the whole Militia to the general Authority, which had the care of the general defence. M^r Mason. had suggested the idea of a select militia. He was led to think that would be in fact as much as the Gen^l Gov^t could advantageously be charged with. He was afraid of creating insuperable objections to the plan. He withdrew his original motion, and moved a power "to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the States." Gen^l Pinkney, renewed M^r Mason's original motion. For a part to be under the Gen^l and a part under the State Gov^{ts} w^d be an incurable evil. he saw no room for such distrust of the Gen^l Gov^t. M^r Langdon 2^{ds} General Pinkney's renewal. He saw no more reason to be afraid of the Gen^l Gov^t than of the State Gov^{ts}. He was more apprehensive of the confusion of the different authorities on this subject, than of either. M^r Madison thought the regulation of the Militia naturally appertaining to the authority charged with the public defence. It did not seem in its nature to be divisible between two distinct authorities. If the States would trust the Gen^l Gov^t with a power over the public treasure, they would from the same consideration of necessity grant it the direction of the public force. Those who had a full view of the public situation w^d from a sense of the danger, guard ag^{st} it: the States would not be separately impressed with the general situation, nor have the due confidence in the concurrent exertions of each other. M^r Elseworth, considered the idea of a select militia as impracticable; & if it were not it would be followed by a ruinous declension of the great body of the Militia. The States would never submit to the same militia laws. Three or four shillings as a penalty will enforce better obedience in New England, than forty lashes in some other places. M^r Pinkney thought the power such an one as could not be abused, and that the States would see the necessity of surrendering it. He had however but a scanty faith in Militia. There must be also a real military force. This alone can effectually answer the purpose. The United States had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy.[34] [34] This had reference to the disorders particularly that had occurred in Massach^{ts} which had called for the interposition of the federal troops.--Madison's Note. M^r Sherman, took notice that the States might want their militia for defence ag^{st} invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point. In giving up that of taxation, they retain a concurrent power of raising money for their own use. M^r Gerry thought this the last point remaining to be surrendered. If it be agreed to by the Convention, the plan will have as black a mark as was set on Cain. He had no such confidence in the Gen^l Gov^t as some gentlemen possessed, and believed it would be found that the States have not. Col. Mason, thought there was great weight in the remarks of M^r Sherman, and moved an exception to his motion "of such part of the militia as might be required by the States for their own use." M^r Read doubted the propriety of leaving the appointment of the Militia officers in the States. In some States they are elected by the Legislatures; in others by the people themselves. He thought at least an appointment by the State Executives ought to be insisted on. On committing to the grand Committee last appointed, the latter motion of Col. Mason, & the original one revived by Ge^l Pinkney N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay. Adjourned. MONDAY AUGUST 20. IN CONVENTION M^r Pinkney submitted to the House, in order to be referred to the Committee of detail, the following propositions--"Each House shall be the judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same, or who, in the place where the Legislature may be sitting and during the time of its Session, shall threaten any of its members for any thing said or done in the House; or who shall assault any of them therefor--or who shall assault or arrest any witness or other person ordered to attend either of the Houses in his way going or returning; or who shall rescue any person arrested by their order." "Each branch of the Legislature, as well as the supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." "The privileges and benefit of the Writ of Habeas corpus shall be enjoyed in this Government in the most expeditious and ample manner; and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ---- months." "The liberty of the Press, shall be inviolably preserved." "No troops shall be kept up in time of peace, but by consent of the Legislature." "The military shall always be subordinate to the Civil power, and no grants of money shall be made by the Legislature for supporting military Land forces, for more than one year at a time." "No soldier shall be quartered in any house in time of peace without consent of the owner." "No person holding the office of President of the U. S. a Judge of their supreme Court, Secretary for the department of Foreign Affairs, of Finance, of Marine, of War, or of ----, shall be capable of holding at the same time any other office of Trust or emolument under the U. S. or an individual State." "No religious test or qualification shall ever be annexed to any oath of office under the authority of the U. S." "The U. S. shall be forever considered as one Body corporate and politic in law, and entitled to all the rights privileges and immunities, which to Bodies corporate ought to or do appertain." "The Legislature of the U. S. shall have the power of making the Great Seal which shall be kept by the President of the U. S. or in his absence by the President of the Senate, to be used by them as the occasion may require.--It shall be called the Great Seal of the U. S. and shall be affixed to all laws." "All commissions and writs shall run in the name of the U.S." "The Jurisdiction of the Supreme Court shall be extended to all controversies between the U. S. and an individual State, or the U. S. and the Citizens of an individual State." These propositions were referred to the Committee of detail without debate or consideration of them by the House. M^r Gov^r Morris 2^{ded} by M^r Pinkney, submitted the following propositions which were in like manner referred to the Committee of Detail. "To assist the President in conducting the Public affairs there shall be a Council of State composed of the following officers--1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U. S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union: He shall be President of the Council in the absence of the President. 2. The Secretary of Domestic affairs who shall be appointed by the President and hold his office during pleasure. It shall be his duty to attend to matters of general police, the State of Agriculture and manufactures, the opening of roads and navigations, and the facilitating communications thro' the U. States; and he shall from time to time recommend such measures and establishments as may tend to promote those objects. 3. The Secretary of Commerce and Finance who shall also be appointed by the President during pleasure. It shall be his duty to superintend all matters relating to the public finances, to prepare & report plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his Judgment promote the commercial interests of the U. S. 4. The Secretary of foreign affairs who shall also be appointed by the President during pleasure. It shall be his duty to correspond with all foreign Ministers, prepare plans of Treaties, & consider such as may be transmitted from abroad, and generally to attend to the interests of the U. S. in their connections with foreign powers. 5. The Secretary of War who shall also be appointed by the President during pleasure. It shall be his duty to superintend every thing relating to the war Department, such as the raising and equipping of troops, the care of military stores, public fortifications, arsenals & the like--also in time of war to prepare & recommend plans of offence and Defence. 6. The Secretary of the Marine who shall also be appointed during pleasure--It shall be his duty to superintend every thing relating to the Marine Department, the public ships, Dock Yards, naval Stores & arsenals--also in the time of war to prepare and recommend plans of offence and defence. The President shall also appoint a Secretary of State to hold his office during pleasure; who shall be Secretary to the Council of State, and also public Secretary to the President. It shall be his duty to prepare all Public dispatches from the President which he shall countersign. The President may from time to time submit any matter to the discussion of the Council of State, and he may require the written opinions of any one or more of the members: But he shall in all cases exercise his own judgment, and either Conform to such opinions or not as he may think proper; and every officer above mentioned shall be responsible for his opinion on the affairs relating to his particular Department. Each of the officers above mentioned shall be liable to impeachment & removal from office for neglect of duty malversation or corruption." M^r Gerry moved "that the Committee be instructed to report proper qualifications for the President, and a mode of trying the Supreme Judges in cases of impeachment." The clause "to call forth the aid of the Militia &c. was postponed till report should be made as to the power over the Militia referred yesterday to the Grand Committee of eleven. M^r Mason moved to enable Congress "to enact sumptuary laws." No Government can be maintained unless the manners be made consonant to it. Such a discretionary power may do good and can do no harm. A proper regulation of excises & of trade may do a great deal but it is best to have an express provision. It was objected to sumptuary laws that they were contrary to nature. This was a vulgar error. The love of distinction it is true is natural; but the object of sumptuary laws is not to extinguish this principle but to give it a proper direction. M^r Elseworth. The best remedy is to enforce taxes & debts. As far as the regulation of eating & drinking can be reasonable, it is provided for in the power of taxation. M^r Gov^r Morris argued that sumptuary laws tended to create a landed nobility, by fixing in the great-landholders and their posterity their present possessions. M^r Gerry, the law of necessity is the best sumptuary law. On Motion of M^r Mason "as to sumptuary laws" N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay. "And to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the Government of the U. S. or any department or officer thereof." M^r Madison and M^r Pinkney moved to insert between "laws" and "necessary" "and establish all offices," it appearing to them liable to cavil that the latter was not included in the former. M^r Gov^r Morris, M^r Wilson, M^r Rutlidge and M^r Elseworth urged that the amendment could not be necessary. On the motion for inserting "and establish all offices" N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. The clause as reported was then agreed to nem. con. Art: VII Sect. 2. concerning Treason which see. M^r Madison, thought the definition too narrow. It did not appear to go as far as the Stat. of Edw^d III. He did not see why more latitude might not be left to the Legislature. It w^d be as safe as in the hands of State legislatures. And it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused. M^r Mason was for pursuing the Stat: of Edw^d III. M^r Gov^r Morris was for giving to the Union an exclusive right to declare what sh^d be treason. In case of a contest between the U. S. and a particular State, the people of the latter must under the disjunctive terms of the clause, be traitors to one or other authority. M^r Randolph thought the clause defective in adopting the words, "in adhering" only. The British Stat: adds, "giving them aid and comfort" which had a more extensive meaning. M^r Elseworth considered the definition as the same in fact with that of the Statute. M^r Gov^r Morris "adhering" does not go so far as "giving aid and comfort" or the latter words may be restrictive of "adhering," in either case the Statute is not pursued. M^r Wilson held "giving aid and comfort" to be explanatory, not operative words; and that it was better to omit them. M^r Dickenson, thought the addition of "giving aid and comfort" unnecessary & improper; being too vague and extending too far. He wished to know what was meant by the "testimony of two witnesses" whether they were to be witnesses to the same overt act or to different overt acts. He thought also that proof of an overt act ought to be expressed as essential in the case. Doc^r Johnson considered "giving aid & comfort" as explanatory of "adhering" & that something should be inserted in the definition concerning overt acts. He contended that Treason could not be both ag^{st} the U. States--and individual States; being an offence ag^{st} the Sovereignty which can be but one in the same community. M^r Madison remarked that "and" before "in adhering" should be changed into "or" otherwise both offences viz. of "levying war," & of adhering to the Enemy might be necessary to constitute Treason. He added that, as the definition here was of treason against _the U. S._ it would seem that the individual States w^d be left in possession of a concurrent power so far as to define & punish treason particularly ag^{st} themselves; which might involve double punishm^t. It was moved that the whole clause be recommitted which was lost, the votes being equally divided. N. H. no. Mas. no. C^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. div^d. S. C. no. Geo. ay. M^r Wilson & Doc^r Johnson moved, that "or any of them," after "United States" be struck out in order to remove the embarrassment; which was agreed to nem. con. M^r Madison. This has not removed the embarrassment. The same Act might be treason ag^{st} the United States as here defined--and ag^{st} a particular State according to its laws. M^r Elseworth. There can be no danger to the gen^l authority from this; as the laws of the U. States are to be paramount. Doc^r Johnson was still of opinion there could be no Treason ag^{st} a particular State. It could not even at present, as the Confederation now stands, the Sovereignty being in the Union; much less can it be under the proposed system. Col. Mason. The United States will have a qualified sovereignty only. The individual States will retain a part of the Sovereignty. An Act may be treason ag^{st} a particular State which is not so ag^{st} the U. States. He cited the Rebellion of Bacon in Virginia as an illustration of the doctrine. Doc^r Johnson: That case would amount to Treason ag^{st} the Sovereign, the Supreme Sovereign, the United States. M^r King observed that the controversy relating to Treason might be of less magnitude than was supposed; as the Legislature might punish capitally under other names than Treason. M^r Gov^r Morris and M^r Randolph wished to substitute the words of the British Statute and moved to postpone Sect 2. art VII in order to consider the following substitute--"Whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of Treason, it is therefore ordained, declared & established, that if a man do levy war ag^{st} the U. S. within their territories, or be adherent to the enemies of the U. S. within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed by the people of his condition, he shall be adjudged guilty of Treason." On this question N. H.--Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. It was then moved to strike out "ag^{st} United States" after "treason" so as to define treason generally, and on this question Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay. It was then moved to insert after "two witnesses" the words "to the same overt act." Doc^r Franklin wished this amendment to take place. prosecutions for treason were generally virulent; and perjury too easily made use of against innocence. M^r Wilson. much may be said on both sides. Treason may sometimes be practised in such a manner, as to render proof extremely difficult--as in a traitorous correspondence with an Enemy. On the question--as to some overt act N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay. M^r King moved to insert before the word "power" the word "sole," giving the U. States the exclusive right to declare the punishment of Treason. M^r Broom 2^{ds} the motion. M^r Wilson in cases of a general nature, treason can only be ag^{st} the U-- States, and in such they sh^d have the sole right to declare the punishment--yet in many cases it may be otherwise. The subject was however intricate and he distrusted his present judgment on it. M^r King this amendment results from the vote defining treason generally by striking out ag^{st} the U. States, which excludes any treason ag^{st} particular States. These may however punish offences as high misdemeanors. On inserting the word "sole." It passed in the negative N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. no.-- M^r Wilson. the clause is ambiguous now. "Sole" ought either to have been inserted, or "against the U. S." to be re-instated. M^r King no line can be drawn between levying war and adhering to enemy ag^{st} the U. States and ag^{st} an individual State--Treason ag^{st} the latter must be so ag^{st} the former. M^r Sherman, resistance ag^{st} the laws of the U. States as distinguished from resistance ag^{st} the laws of a particular State, forms the line. M^r Elseworth, the U. S. are sovereign on one side of the line dividing the jurisdictions--the States on the other--each ought to have power to defend their respective Sovereignties. M^r Dickenson, war or insurrection ag^{st} a member of the Union must be so ag^{st} the whole body; but the constitution should be made clear on this point. The clause was reconsidered nem. con--& then M^r Wilson & M^r Elseworth moved to reinstate "ag^{st} the U. S." after "Treason--" on which question N. H. no. Mass. no. C^t ay. N. J. ay. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. M^r Madison was not satisfied with the footing on which the clause now stood. As Treason ag^{st} the U. States involves treason ag^{st} particular States, and vice versa, the same act may be twice tried & punished by the different authorities. M^r Gov^r Morris viewed the matter in the same light-- It was moved & 2^{ded} to amend the sentence to read--"Treason ag^{st} the U. S. shall consist only in levying war against them, or in adhering to their enemies" which was agreed to. Col. Mason moved to insert the words "giving them aid and comfort," as restrictive of "adhering to their Enemies &c." the latter he thought would be otherwise too indefinite--This motion was agreed to: Con^t: Del: & Georgia only being in the Negative. M^r L. Martin moved to insert after conviction &c.--"or on confession in open court"--and on the question (the negative States thinking the words superfluous) it was agreed to N. H. ay. Mass. no. C^t ay. N. J. ay. P. ay. Del. ay. M^d ay. V^a ay. N. C. div^d. S. C. no. Geo. no. Art: VII. Sect. 2, as amended was then agreed to nem. con. Sect. 3. taken up. "white & other" struck out nem. con. as superfluous. M^r Elseworth moved to require the first census to be taken within "three" instead of "six" years from the first meeting of the Legislature--and on question N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no. M^r King asked what was the precise meaning of _direct_ taxation? No one answ^d. M^r Gerry moved to add to the 3^d Sect. Art: VII. the following clause "That from the first meeting of the Legislature of the U. S. until a Census shall be taken all monies for supplying the public Treasury by direct taxation shall be raised from the several States according to the number of their Representatives respectively in the first branch". M^r Langdon. This would bear unreasonably hard on N. H. and he must be ag^{st} it. M^r Carrol opposed it. The number of Rep^s did not admit of a proportion exact enough for a rule of taxation. Before any question the House Adjourned. TUESDAY AUGUST 21. IN CONVENTION Governour Livingston[35] from the Committee of Eleven to whom was referred the propositions respecting the debts of the several States and also the Militia entered on the 18^{th} inst: delivered the following report: [35] "Governor Livingston is confessedly a Man of the first rate talents, but he appears to me rather to indulge a sportiveness of wit, than a strength of thinking. He is however equal to anything, from the extensiveness of his education and genius. His writings teem with satyr and a neatness of style. But he is no Orator, and seems little acquainted with the guiles of policy. He is about 60 years old, and remarkably healthy."--Pierce's Notes, _Am. Hist. Rev._, iii., 327. "The Legislature of the U. S. shall have power to fulfil the engagements which have been entered into by Congress, and to discharge as well the debts of the U. S. as the debts incurred by the several States during the late war, for the common defence and general welfare." "To make laws for organizing arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by the U. States." M^r Gerry considered giving the power only, without adopting the obligation, as destroying the security now enjoyed by the public creditors of the U-- States. He enlarged on the merit of this class of citizens, and the solemn faith which had been pledged under the existing Confederation. If their situation should be changed as here proposed great opposition would be excited ag^{st} the plan. He urged also that as the States had made different degrees of exertion to sink their respective debts, those who had done most would be alarmed, if they were now to be saddled with a share of the debts of States which had done least. M^r Sherman. It means neither more nor less than the confederation as it relates to this subject. M^r Elseworth moved that the Report delivered in by Gov^r Livingston should lie on the table.--Agreed to nem. con. Art: VII. Sect. 3 resumed.--M^r Dickinson moved to postpone this in order to reconsider Art: IV. Sect. 4. and to _limit_ the number of representatives to be allowed to the large States. Unless this were done the small States would be reduced to entire insignificancy, and encouragement given to the importation of slaves. M^r Sherman would agree to such a reconsideration, but did not see the necessity of postponing the section before the House.--M^r Dickenson withdrew his motion. Art: VII. Sect 3. then agreed to 10 ays, Delaware alone being no. M^r Sherman moved to add to Sect 3. the following clause "And all accounts of supplies furnished, services performed, and monies advanced by the several States to the U. States, or by the U. S. to the several States shall be adjusted by the same rule." M^r Govern^r Morris 2^{ds} the motion. M^r Ghorum, thought it wrong to insert this in the Constitution. The Legislature will no doubt do what is right. The present Congress have such a power and are now exercising it. M^r Sherman unless some rule be expressly given none will exist under the new system. M^r Elseworth. Though The contracts of Congress will be binding, there will be no rule for executing them on the States; and one ought to be provided. M^r Sherman withdrew his motion to make way for one of M^r Williamson to add to Sect. 3. "By this rule the several quotas of the States shall be determined in settling the expences of the late war." M^r Carrol brought into view the difficulty that might arise on this subject from the establishment of the Constitution as intended without the _unanimous_ consent of the States. M^r Williamson's motion was postponed nem. con. Art: VI Sect. 12. which had been postponed of Aug: 15. was now called for by Col. Mason, who wished to know how the proposed amendment as to money bills would be decided, before he agreed to any further points. M^r Gerry's motion of yesterday that previous to a census, direct taxation be proportioned on the States according to the number of Representatives, was taken up. He observed that the principal acts of Government would probably take place within that period, and it was but reasonable that the States should pay in proportion to their share in them. M^r Elseworth thought such a rule unjust. There was a great difference between the number of Represent^s and the number of inhabitants as a rule in this case. Even if the former were proportioned as nearly as possible to the latter, it would be a very inaccurate rule. A State might have one Representative only that had inhabitants enough for 1-1/2 or more, if fractions could be applied, &c.--. He proposed to amend the motion by adding the words, "subject to a final liquidation by the foregoing rule when a census shall have been taken." M^r Madison. The last appointment of Cong^s on which the number of Representatives was founded, was conjectural and meant only as a temporary rule till a Census should be established. M^r Read. The requisitions of Cong^s had been accommodated to the impoverishment produced by the war; and to other local and temporary circumstances. M^r Williamson opposed M^r Gerry's motion. M^r Langdon was not here when N. H. was allowed three members. If it was more than her share; he did not wish for them. M^r Butler contended warmly for M^r Gerry's motion as founded in reason and equity. M^r Elseworth's proviso to M^r Gerry's motion was agreed to nem. con. M^r King thought the power of taxation given to the Legislature rendered the motion of M^r Gerry altogether unnecessary. On M^r Gerry's motion as amended N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. div^d. S. C. ay. Geo. no. On a question, Shall Art: VI Sect. 12. with the amendment to it proposed & entered on the 15 instant, as called for by Col. Mason be now taken up? It passed in the negative. N. H. ay. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no. M^r L. Martin. The power of taxation is most likely to be criticised by the public. Direct taxation should not be used but in cases of absolute necessity; and then the States will be the best Judges of the mode. He therefore moved the following addition to Sect: 3: Art VII "And whenever the Legislature of the U. S. shall find it necessary that revenue should be raised by direct taxation, having apportioned the same, according to the above rule on the several States, requisitions shall be made of the respective States to pay into the Continental Treasury their respective quotas within a time in the said requisitions specified; and in case of any of the States failing to comply with such requisitions, then and then only to devise and pass acts directing the mode, and authorizing the collection of the same." M^r M^cHenry 2^{ded} the motion--there was no debate, and on the question N. H. no. C^t no. N. J. ay. Pen^a no. Del. no. M^d div^d. (Jenifer & Carol no) V^a no. N. C. no. S. C. no. Geo. no. Art. VII. Sect. 4.--M^r Langdon, by this section the States are left at liberty to tax exports. N. H. therefore with other non-exporting States, will be subject to be taxed by the States exporting its produce. This could not be admitted. It seems to be feared that the Northern States will oppress the trade of the South^n. This may be guarded ag^{st} by requiring the concurrence of 2/3 or 3/4 of the legislature in such cases. M^r Elseworth. It is best as it stands. The power of regulating trade between the States will protect them ag^{st} each other. Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves. There are solid reasons ag^{st} Cong^s taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. The produce of different States is such as to prevent uniformity in such taxes. There are indeed but a few articles that could be taxed at all; as Tob^o rice & indigo, and a tax on these alone would be partial & unjust. 3. The taxing of exports would engender incurable jealousies. M^r Williamson. Tho' N. C. has been taxed by Virg^a by a duty on 12000 Hhs of her Tob^o exported thro' Virg^a yet he would never agree to this power. Should it take place, it would destroy the last hope of an adoption of the plan. M^r Gov^r Morris. These local considerations ought not to impede the general interest. There is great weight in the argument, that the exporting States will tax the produce of their uncommercial neighbours. The power of regulating the trade between P^a & N. Jersey will never prevent the former from taxing the latter. Nor will such a tax force a direct exportation from N. Jersey. The advantages possessed by a large trading City, outweigh the disadvantage of a moderate duty; and will retain the trade in that channel. If no tax can be laid on exports, an embargo cannot be laid though in time of war such a measure may be of critical importance. Tobacco, lumber and live-stock are three objects belonging to different States, of which great advantage might be made by a power to tax exports. To these may be added Genseng and Masts for Ships by which a tax might be thrown on other nations. The idea of supplying the West Indies with lumber from Nova Scotia is one of the many follies of lord Sheffield's pamphlets. The State of the Country also will change, and render duties on exports, as skins, beaver & other peculiar raw materials, politic in the view of encouraging American manufactures. M^r Butler was strenuously opposed to a power over exports, as unjust and alarming to the staple States. M^r Langdon suggested a prohibition on the States from taxing the produce of other States exported from their harbours. M^r Dickenson. The power of taxing exports may be inconvenient at present; but it must be of dangerous consequence to prohibit it with respect to all articles and for ever. He thought it would be better to except particular articles from the power. M^r Sherman. It is best to prohibit the National legislature in all cases. The States will never give up all power over trade. An enumeration of particular articles would be difficult invidious and improper. M^r Madison. As we ought to be governed by national and permanent views, it is a sufficient argument for giving y^e power over exports that a tax, tho' it may not be expedient at present, may be so hereafter. A proper regulation of exports may & probably will be necessary hereafter, and for the same purposes as the regulation of imports; viz, for revenue--domestic manufactures--and procuring equitable regulations from other nations. An Embargo may be of absolute necessity, and can alone be effectuated by the Gen^l authority. The regulation of trade between State and State cannot effect more than indirectly to hinder a State from taxing its own exports; by authorizing its Citizens to carry their commodities freely into a neighbouring State which might decline taxing exports in order to draw into its channel the trade of its neighbours. As to the fear of disproportionate burthens on the more exporting States, it might be remarked that it was agreed on all hands that the revenue w^d principally be drawn from trade, and as only a given revenue would be needed, it was not material whether all should be drawn wholly from imports--or half from those, and half from exports. The imports and exports must be pretty nearly equal in every State--and relatively the same among the different States. M^r Elseworth did not conceive an embargo by the Congress interdicted by this section. M^r M^cHenry conceived that power to be included in the power of war. M^r Wilson. Pennsylvania exports the produce of Mary^d N. Jersey, Delaware & will by & by when the River Delaware is opened, export for N. York. In favoring the general power over exports therefore, he opposed the particular interest of his State. He remarked that the power had been attacked by reasoning which could only have held good in case the Gen^l Gov^t had been _compelled_, instead of _authorized_, to lay duties on exports. To deny this power is to take from the Common Gov^t half the regulation of trade. It was his opinion that a power over exports might be more effectual than that over imports in obtaining beneficial treaties of commerce. M^r Gerry was strenuously opposed to the power over exports. It might be made use of to compel the States to comply with the will of the Gen^l Government, and to grant it any new powers which might be demanded. We have given it more power already than we know how will be exercised. It will enable the Gen^l Gov^t to oppress the States as much as Ireland is oppressed by Great Britain. M^r Fitzimmons[36] would be ag^{st} a tax on exports to be laid immediately; but was for giving a power of laying the tax when a proper time may call for it. This would certainly be the case when America should become a manufacturing Country. He illustrated his argument by the duties in G. Britain on wool &c. [36] "Mr. Fitzsimons is a Merchant of considerable talents, and speaks very well I am told, in the Legislature of Pennsylvania. He is about 40 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 328. Col. Mason. If he were for reducing the States to mere corporations as seemed to be the tendency of some arguments, he should be for subjecting their exports as well as imports to a power of general taxation. He went on a principle often advanced & in which he concurred, that "a majority when interested will oppress the minority." This maxim had been verified by our own Legislature (of Virginia). If we compare the States in this point of view the 8 Northern States have an interest different from the five South^n States; and have in one branch of the legislature 36 votes ag^{st} 29. and in the other in the proportion of 8 ag^{st} 5. The Southern States had therefore ground for their suspicions. The case of Exports was not the same with that of imports. The latter were the same throughout the States; the former very different. As to Tobacco other nations do raise it, and are capable of raising it as well as Virg^a &c. The impolicy of taxing that article had been demonstrated by the experiment of Virginia. M^r Clymer[37] remarked that every State might reason with regard to its particular productions, in the same manner as the Southern States. The middle States may apprehend an oppression of their wheat flour, provisions &c. and with more reason, as these articles were exposed to a competition in foreign markets not incident to Tob^o rice &c. They may apprehend also combinations ag^{st} them between the Eastern & Southern States as much as the latter can apprehend them between the Eastern & middle. He moved as a qualification of the power of taxing Exports that it should be restrained to regulations of trade by inserting after the word "duty" sect 4 art VII the words, "for the purpose of revenue." [37] "Mr. Clymer is a Lawyer of some abilities;--he is a respectable Man and much esteemed. Mr. Clymer is about 40 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 328. On question on M^r Clymer's motion N. H. no. Mass. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Madison. In order to require 2/3 of each House to tax exports, as a lesser evil than a total prohibition moved to insert the words "unless by consent of two thirds of the Legislature." M^r Wilson 2^{ds} and on this question, it passed in the Negative. N. H. ay. Mass. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a no (Col. Mason, M^r Randolph M^r Blair no. Gen^l Washington & J. M. ay.) N. C. no. S. C. no. Geo. no. Question on Sect: 4. Art VII. as far as to "no tax sh^l be laid on exports"--it passed in the affirmative. N. H. no. Mass. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. (Gen^l W. & J. M. no) N. C. ay. S. C. ay. Geo. ay. M^r L. Martin, proposed to vary the Sect: 4. art VII so as to allow a prohibition or tax on the importation of slaves. 1. as five slaves are to be counted as 3 free men in the apportionment of Representatives; such a clause would leave an encouragement to this trafic. 2. slaves weakened one part of the Union which the other parts were bound to protect; the privilege of importing them was therefore unreasonable. 3. it was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution. M^r Rutlidge did not see how the importation of slaves could be encouraged by this section. He was not apprehensive of insurrections and would readily exempt the other States from the obligation to protect the Southern against them. Religion & humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is whether the South^n States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of slaves which will increase the commodities of which they will become the carriers. M^r Elseworth was for leaving the clause as it stands, let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole, and the States are the best judges of their particular interest. The old confederation had not meddled with this point, and he did not see any greater necessity for bringing it within the policy of the new one. M^r Pinkney. South Carolina can never receive the plan if it prohibits the slave trade. In every proposed extension of the powers of Congress, that State has expressly & watchfully excepted that of meddling with the importation of negroes. If the States be all left at liberty on this subject, S. Carolina may perhaps by degrees do of herself what is wished, as Virginia & Maryland already have done. Adjourned. WEDNESDAY AUGUST 22. IN CONVENTION. Art VII sect 4. resumed. M^r Sherman was for leaving the clause as it stands. He disapproved of the slave trade; yet as the States were now possessed of the right to import slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it. He observed that the abolition of Slavery seemed to be going on in the U. S. & that the good sense of the several States would probably by degrees compleat it. He urged on the Convention the necessity of despatching its business. Col. Mason. This infernal traffic originated in the avarice of British Merchants. The British Gov^t constantly checked the attempts of Virginia to put a stop to it. The present question concerns not the importing States alone but the whole Union. The evil of having slaves was experienced during the late war. Had slaves been treated as they might have been by the Enemy, they would have proved dangerous instruments in their hands. But their folly dealt by the slaves, as it did by the Tories. He mentioned the dangerous insurrections of the slaves in Greece and Sicily; and the instructions given by Cromwell to the Commissioners sent to Virginia, to arm the servants & slaves, in case other means of obtaining its submission should fail. Maryland & Virginia he said had already prohibited the importation of slaves expressly. N. Carolina had done the same in substance. All this would be in vain, if S. Carolina & Georgia be at liberty to import. The Western people are already calling out for slaves for their new lands, and will fill that Country with slaves if they can be got thro' S. Carolina & Georgia. Slavery discourages arts & manufactures. The poor despise labor when performed by slaves. They prevent the immigration of Whites, who really enrich & strengthen a Country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities. He lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this was the case with many other rights, now to be properly given up. He held it essential in every point of view that the Gen^l Gov^t should have power to prevent the increase of slavery. M^r Elseworth. As he had never owned a slave could not judge of the effects of slavery on character. He said however that if it was to be considered in a moral light we ought to go farther and free those already in the Country.--As slaves also multiply so fast in Virginia & Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps foreign supplies are necessary, if we go no farther than is urged, we shall be unjust towards S. Carolina & Georgia. Let us not intermeddle. As population increases, poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our Country. Provision is already made in Connecticut for abolishing it. And the abolition has already taken place in Massachusetts. As to the danger of insurrections from foreign influence, that will become a motive to kind treatment of the slaves. M^r Pinkney. If slavery be wrong, it is justified by the example of all the world. He cited the case of Greece Rome & other antient States; the sanction given by France England, Holland & other modern States. In all ages one half of mankind have been slaves. If the S. States were let alone they will probably of themselves stop importations. He w^d himself as a citizen of S. Carolina vote for it. An attempt to take away the right as proposed will produce serious objections to the Constitution which he wished to see adopted. General Pinkney declared it to be his firm opinion that if himself & all his colleagues were to sign the Constitution & use their personal influence, it would be of no avail towards obtaining the assent of their Constituents. S. Carolina & Georgia cannot do without slaves. As to Virginia she will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants. It would be unequal to require S. C. & Georgia to confederate on such unequal terms. He said the Royal assent before the Revolution had never been refused to S. Carolina as to Virginia. He contended that the importation of slaves would be for the interest of the whole Union. The more slaves, the more produce to employ the carrying trade; The more consumption also, and the more of this, the more revenue for the common treasury. He admitted it to be reasonable that slaves should be dutied like other imports, but should consider a rejection of the clause as an exclusion of S. Carol^a from the Union. M^r Baldwin had conceived national objects alone to be before the Convention, not such as like the present were of a local nature. Georgia was decided on this point. That State has always hitherto supposed a Gen^l Governm^t to be the pursuit of the central States who wished to have a vortex for every thing--that her distance would preclude her from equal advantage--& that she could not prudently purchase it by yielding national powers. From this it might be understood in what light she would view an attempt to abridge one of her favorite prerogatives. If left to herself, she may probably put a stop to the evil. As one ground for this conjecture, he took notice of the sect of ---- which he said was a respectable class of people, who carried their ethics beyond the mere _equality of men_, extending their humanity to the claims of the whole animal creation. M^r Wilson observed that if S. C. & Georgia were themselves disposed to get rid of the importation of slaves in a short time as had been suggested, they would never refuse to Unite because the importation might be prohibited. As the section now stands all articles imported are to be taxed. Slaves alone are exempt. This is in fact a bounty on that article. M^r Gerry thought we had nothing to do with the conduct of the States as to Slaves, but ought to be careful not to give any sanction to it. M^r Dickenson considered it as inadmissible on every principle of honor & safety that the importation of slaves should be authorized to the States by the Constitution. The true question was whether the national happiness would be promoted or impeded by the importation, and this question ought to be left to the National Gov^t not to the States particularly interested. If Eng^d & France permit slavery, slaves are at the same time excluded from both those kingdoms. Greece and Rome were made unhappy by their slaves. He could not believe that the South^n States would refuse to confederate on the account apprehended; especially as the power was not likely to be immediately exercised by the Gen^l Government. M^r Williamson stated the law of N. Carolina on the subject, to-wit that it did not directly prohibit the importation of slaves. It imposed a duty of £5 on each slave imported from Africa, £10 on each from elsewhere, & £50 on each from a State licensing manumission. He thought the S. States could not be members of the Union if the clause sh^d be rejected, and that it was wrong to force any thing down not absolutely necessary, and which any State must disagree to. M^r King thought the subject should be considered in a political light only. If two States will not agree to the Constitution as stated on one side, he could affirm with equal belief on the other, that great & equal opposition would be experienced from the other States. He remarked on the exemption of slaves from duty whilst every other import was subjected to it, as an inequality that could not fail to strike the commercial sagacity of the North^n & Middle States. M^r Langdon was strenuous for giving the power to the Gen^l Gov^t. He c^d not with a good conscience leave it with the States who could then go on with the traffic, without being restrained by the opinions here given that they will themselves cease to import slaves. Gen^l Pinkney thought himself bound to declare candidly that he did not think S. Carolina would stop her importations of slaves in any short time, but only stop them occasionally as she now does. He moved to commit the clause that slaves might be made liable to an equal tax with other imports which he thought right & w^{ch} w^d remove one difficulty that had been started. M^r Rutlidge. If the Convention thinks that N. C. S. C. & Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest. He was strenuous ag^{st} striking out the section, and seconded the motion of Gen^l Pinkney for a commitment. M^r Gov^r Morris wished the whole subject to be committed including the clauses relating to taxes on exports & to a navigation act. These things may form a bargain among the Northern & Southern States. M^r Butler declared that he never would agree to the power of taxing exports. M^r Sherman said it was better to let the S. States import slaves than to part with them, if they made that a sine qua non. He was opposed to a tax on slaves imported as making the matter worse, because it implied they were _property_. He acknowledged that if the power of prohibiting the importation should be given to the Gen^l Government that it would be exercised. He thought it would be its duty to exercise the power. M^r Read was for the commitment provided the clause concerning taxes on exports should also be committed. M^r Sherman observed that that clause had been agreed to & therefore could not be committed. M^r Randolph was for committing in order that some middle ground might, if possible, be found. He could never agree to the clause as it stands. He w^d sooner risk the constitution. He dwelt on the dilemma to which the Convention was exposed. By agreeing to the clause, it would revolt the Quakers, the Methodists, and many others in the States having no slaves. On the other hand, two States might be lost to the Union. Let us then, he said, try the chance of a commitment. On the question for committing the remaining part of Sect. 4 & 5. of Art: 7. N. H. no. Mass. abt^t Con^t ay. N. J. ay. P^a no. Del. no. Mary^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Pinkney & M^r Langdon moved to commit Sect. 6. as to navigation act by two thirds of each House. M^r Gorham did not see the propriety of it. Is it meant to require a greater proportion of votes? He desired it to be remembered that the Eastern States had no motive to Union but a commercial one. They were able to protect themselves. They were not afraid of external danger, and did not need the aid of the South^n States. M^r Wilson wished for a commitment in order to reduce the proportion of votes required. M^r Elseworth was for taking the plan as it is. This widening of opinions has a threatening aspect. If we do not agree on this middle & moderate ground he was afraid we should lose two States, with such others as may be disposed to stand aloof, should fly into a variety of shapes & directions, and most probably into several confederations and not without bloodshed. On Question for committing 6 Sect. as to navigation act to a member from each State-- N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. The Committee appointed were M^r Langdon, King, Johnson, Livingston, Clymer, Dickenson, L. Martin, Madison, Williamson, C. C. Pinkney, & Baldwin. To this committee were referred also the two clauses above mentioned, of the 4 & 5. Sect: of Art. 7. M^r Rutlidge from the Committee to whom were referred on the 18 & 20^{th} instant the propositions of M^r Madison & M^r Pinkney made the Report following:[38] [38] Madison's Note says: ("Here insert Report from Journal of the Convention of the date.") It is found on p. 227, 228, of the Journal and is as above. "The committee report, that in their opinion the following additions should be made to the report now before the convention, namely, "At the end of the first clause of the first section of the seventh article add, 'for payment of the debts and necessary expenses of the United States; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than ---- years.' "At the end of the second clause, second section, seventh article, add, 'and with Indians, within the limits of any state, not subject to the laws thereof.' "At the end of the sixteenth clause of the second section, seventh article, add, 'and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such manner as shall not interfere with the governments of individual states, in matters which respect only their internal police, or for which their individual authority may be competent.' "At the end of the first section, tenth article, add, 'he shall be of the age of thirty-five years, and a citizen of the United States, and shall have been an inhabitant thereof for twenty-one years.' "After the second section of the tenth article, insert the following as a third section: "'The President of the United States shall have a privy council, which shall consist of the president of the senate, the speaker of the house of representatives, the chief justice of the supreme court, and the principal officer in the respective departments of foreign affairs, domestic affairs, war, marine, and finance, as such departments of office shall from time to time be established, whose duty it shall be to advise him in matters respecting the execution of his office, which he shall think proper to lay before them: but their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt.' "At the end of the second section of the eleventh article, add, 'the judges of the supreme court shall be triable by the senate, on impeachment by the house of representatives.' "Between the fourth and fifth lines of the third section of the eleventh article, after the word 'controversies,' insert, 'between the United States and an individual state, or the United States and an individual person.'" A motion to rescind the order of the House respecting the hours of meeting & adjourning, was negatived: Mass: P^a Del. Mar^d ay. N. H. Con: N. J. V^a N. C. S. C. Geo. no. M^r Gerry and M^r M^cHenry moved to insert after the 2^d Sect. Art: 7, the clause following, to wit, "The Legislature shall pass no bill of attainder nor any ex post facto law."[39] [39] The proceedings on this motion involving the two questions on "attainders and ex post facto laws," are not so fully stated in the printed Journal.--Madison's Note. M^r Gerry urged the necessity of this prohibition, which he said was greater in the National than the State Legislature, because the number of members in the former being fewer, they were on that account the more to be feared. M^r Gov^r Morris thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder. M^r Elseworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It cannot then be necessary to prohibit them. M^r Wilson was against inserting any thing in the Constitution as to ex post facto laws. It will bring reflections on the Constitution--and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government that will be so. The question being divided, the first part of the motion relating to bills of attainder was agreed to nem contradicente. On the second part relating to ex post facto laws-- M^r Carrol remarked that experience overruled all other calculations. It had proved that in whatever light they might be viewed by civilians or others, the State Legislatures had passed them, and they had taken effect. M^r Wilson. If these prohibitions in the State Constitutions have no effect, it will be useless to insert them in this Constitution. Besides, both sides will agree to the principle, and will differ as to its application. M^r Williamson. Such a prohibitory clause is in the Constitution of N. Carolina, and tho it has been violated, it has done good there & may do good here, because the Judges can take hold of it. Doc^r Johnson thought the clause unnecessary, and implying an improper suspicion of the National Legislature. M^r Rutlidge was in favor of the clause. On the question for inserting the prohibition of ex post facto laws. N. H. ay. Mas. ay. Con^t no. N. J. no. P^a no. Del. ay. M^d ay. Virg^a ay. N. C. div^d. S. C. ay. Geo. ay. The report of the committee of 5. made by M^r Rutlidge, was taken up and then postponed that each member might furnish himself with a copy. The Report of the Committee of Eleven delivered in & entered on the Journal of the 21^{st} inst. was then taken up, and the first clause containing the words "The Legislature of the U. S. _shall have power_ to fulfil the engagements which have been entered into by Congress" being under consideration, M^r Elseworth argued that they were unnecessary. The U. S. heretofore entered into Engagements by Cong^s who were their Agents. They will hereafter be bound to fulfil them by their new agents. M^r Randolph thought such a provision necessary: for though the U. States will be bound, the new Gov^t will have no authority in the case unless it be given to them. M^r Madison thought it necessary to give the authority in order to prevent misconstruction. He mentioned the attempts made by the Debtors to British subjects to shew that contracts under the old Government, were dissolved by the Revolution which destroyed the political identity of the Society. M^r Gerry thought it essential that some explicit provision should be made on this subject, so that no pretext might remain for getting rid of the public engagements. M^r Gov^r Morris moved by way of amendment to substitute--"The Legislature _shall_ discharge the debts & fulfil the engagements of the U. States." It was moved to vary the amendment by striking out "discharge the debts" & to insert "liquidate the claims," which being negatived, The amendment moved by M^r Gov^r Morris was agreed to all the States being in the affirmative. It was moved & 2^{ded} to strike the following words out of the 2^d clause of the report "and the authority of training the militia according to the discipline prescribed by the U. S." Before a question was taken The House adjourned. THURSDAY IN CONVENTION AUG: 23, 1787 The Report of the Committee of Eleven made Aug: 21. being taken up, and the following clause being under consideration to wit "To make laws for organizing, arming & disciplining the Militia, and for governing such parts of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed." M^r Sherman moved to strike out the last member "and authority of training" &c. He thought it unnecessary. The States will have this authority of course if not given up. M^r Elseworth doubted the propriety of striking out the sentence. The reason assigned applies as well to the other reservation of the appointment to offices. He remarked at the same time that the term discipline was of vast extent and might be so expounded as to include all power on the subject. M^r King, by way of explanation, said that by _organizing_, the Committee meant, proportioning the officers & men--by _arming_, specifying the kind size & caliber of arms--& by _disciplining_, prescribing the manual exercise evolutions &c. M^r Sherman withdrew his motion. M^r Gerry. This power in the U. S. as explained is making the States drill-sergeants. He had as lief let the Citizens of Massachusetts be disarmed, as to take the command from the States, and subject them to the Gen^l Legislature. It would be regarded as a system of Despotism. M^r Madison observed that "_arming_" as explained did not extend to furnishing arms; nor the term "_disciplining_" to penalties & Courts Martial for enforcing them. M^r King added to his former explanation that _arming_ meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury; that _laws_ for disciplining, must involve penalties and every thing necessary for enforcing penalties. M^r Dayton moved to postpone the paragraph, in order to take up the following proposition. "To establish an uniform & general system of discipline for the Militia of these States, and to make laws for organizing, arming, disciplining & governing _such part of them as may be employed in the service of the U. S._, reserving to the States respectively the appointment of the officers, and all authority over the militia not herein given to the General Government." On the question to postpone in favor of this proposition: it passed in the Negative. N. H. no. Mas. no. C^t no. N. J. ay. P. no. Del. no. Mary^d ay. V^a no. N. C. no. S. C. no. Geo. ay. M^r Elseworth & M^r Sherman moved to postpone the 2^d clause in favor of the following "To establish an uniformity of arms, exercise & organization for the militia, and to provide for the Government of them when called into the service of the U. States." The object of this proposition was to refer the plan for the Militia to the General Gov^t but to leave the execution of it to the State Gov^{ts}. Mr. Langdon said he could not understand the jealousy expressed by some Gentlemen. The General & State Gov^{ts} were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Gov^t is mine, the State Gov^t is mine. In transferring power from one to the other, I only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used. M^r Gerry thought it was rather taking out of the right hand & putting it into the left. Will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single State. M^r Dayton was against so absolute a uniformity. In some States there ought to be a greater proportion of cavalry than in others. In some places rifles would be most proper, in others muskets &c. Gen^l Pinkney preferred the clause reported by the Committee, extending the meaning of it to the case of fines &c. M^r Madison. The primary object is to secure an effectual discipline of the Militia. This will no more be done if left to the States separately than the requisitions have been hitherto paid by them. The States neglect their Militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its Militia for that purpose; in like manner as the militia of a State would have been still more neglected than it has been if each county had been independently charged with the care of its Militia. The Discipline of the Militia is evidently a _National_ concern, and ought to be provided for in the _National_ Constitution. M^r L. Martin was confident that the States would never give up the power over the Militia; and that, if they were to do so, the militia would be less attended to by the Gen^l than by the State Governments. M^r Randolph asked what danger there Could be that the Militia could be brought into the field and made to commit suicide on themselves. This is a power that cannot from its nature be abused, unless indeed the whole mass should be corrupted. He was for trammelling the Gen^l Gov^t whenever there was danger, but here there could be none. He urged this as an essential point; observing that the Militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline. Leaving the appointment of officers to the States protects the people ag^{st} every apprehension that could produce murmur. On Question on M^r Elsworth's Motion N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. A motion was then made to recommit the 2^d clause which was negatived. On the question to agree to the 1^{st} part of the clause, namely "To make laws for organizing arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S." N. H. ay. Mas. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Madison moved to amend the next part of the clause so as to read "reserving to the States respectively, the appointment of the officers, _under the rank of General officers_." M^r Sherman considered this as absolutely inadmissible. He said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the Gen^l Government, every man of discernment would rouse them by sounding the alarm to them. M^r Gerry. Let us at once destroy the State Gov^{ts} have an Executive for life or hereditary, and a proper Senate, and then there would be some consistency in giving full powers to the Gen^l Gov^t but as the States are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention ag^{st} pushing the experiment too far. Some people will support a plan of vigorous Government at every risk. Others of a more democratic cast will oppose it with equal determination, and a Civil war may be produced by the conflict. M^r Madison. As the greatest danger is that of disunion of the States, it is necessary to guard ag^{st} it by sufficient powers to the Common gov^t and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia. On the Question to agree to M^r Madison's motion N. H. ay. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.[40] [40] In the printed Journal, Geo: no.--Madison's Note. On the question to agree to the "reserving to the States the appointment of the officers." It was agreed to nem: contrad: On the question on the clause "and the authority of training the Militia according to the discipline prescribed by the U. S."-- N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a no. N. C. ay. S. C. no. Geo. no. On the question to agree to Art. VII. Sect. 7. as reported it passed nem: contrad. M^r Pinkney urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence and moved to insert, after Art. VII Sect 7. the clause following--"No person holding any office of profit or trust under the U. S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State", which passed nem: contrad: M^r Rutlidge moved to amend Art: VIII to read as follows, "This Constitution & the laws of the U. S. made in pursuance thereof, and all the Treaties made under the authority of the U. S. shall be the supreme law of the several States and of their citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States, to the contrary notwithstanding." which was agreed to, nem: contrad: Art: IX being next for consideration, M^r Gov^r Morris argued ag^{st} the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility. If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create. M^r Wilson was of the same opinion & for like reasons. The art. IX. being waved, and Art. VII. Sect. 1. resumed, M^r Gov^r Morris moved to strike the following words out of the 18 clause "enforce treaties" as being superfluous, since treaties were to be "laws"--which was agreed to nem: contrad: M^r Gov^r Morris moved to alter 1^{st} part. of 18. clause Sect. 1. art VII so as to read "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions"--which was agreed to nem: contrad: On the question then to agree to the 18 clause of Sect. 1. Art: 7. as amended it passed in the affirmative nem: contrad. M^r C. Pinkney moved to add as an additional power to be vested in the Legislature of the U. S. "To negative all laws passed by the several States interfering in the opinion of the legislature with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same." This principle he observed had formerly been agreed to. He considered the precaution as essentially necessary. The objection drawn from the predominance of the large States had been removed by the equality established in the Senate.[41] [41] "RICHMOND AUG^t 22. 87. "DEAR SIR, * * * * * "I have still some hope that I shall hear from you of y^e reinstatement of y^e _negative_--as it is certainly y^e only means by which the several Legislatures can be restrained from disturbing y^e order & harmony of y^e whole, & y^e governm^t render'd properly _national_, & _one_. I should suppose y^t some of its former opponents must by this time have seen y^e necessity of advocating it, if they wish to support their own principles." (James McClurg to Madison--Mad. MSS.) M^r Broome 2^{ded} the proposition. M^r Sherman thought it unnecessary; the laws of the General Government being supreme & paramount to the State laws according to the plan, as it now stands. M^r Madison proposed that it should be committed. He had been from the beginning a friend to the principle; but thought the modification might be made better. M^r Mason wished to know how the power was to be exercised. Are all laws whatever to be brought up? Is no road nor bridge to be established without the Sanction of the General Legislature? Is this to sit constantly in order to receive & revise the State Laws?--He did not mean by these remarks to condemn the expedient, but he was apprehensive that great objections would lie ag^{st} it. M^r Williamson thought it unnecessary, having been already decided, a revival of the question was a waste of time. M^r Wilson considered this as the key-stone wanted to compleat the wide arch of Government we are raising. The power of self-defence had been urged as necessary for the State Governments. It was equally necessary for the General Government. The firmness of Judges is not of itself sufficient. Something further is requisite. It will be better to prevent the passage of an improper law, than to declare it void when passed. M^r Rutlidge. If nothing else, this alone would damn and ought to damn the Constitution. Will any State ever agree to be bound hand & foot in this manner. It is worse than making mere corporations of them whose bye laws would not be subject to this shackle. M^r Elseworth observed that the power contended for w^d require either that all laws of the State Legislatures should previously to their taking effect be transmitted to the Gen^l Legislature, or be repealable by the Latter; or that the State Executives should be appointed by the Gen^l Government, and have a controul over the State laws. If the last was meditated let it be declared. M^r Pinkney declared that he thought the State Executives ought to be so appointed with such a controul, & that it would be so provided if another Convention should take place. M^r Govern^r Morris did not see the utility or practicability of the proposition of M^r Pinkney, but wished it to be referred to the consideration of a Committee. M^r Langdon was in favor of the proposition. He considered it as resolvable into the question whether the extent of the National Constitution was to be judged of by the Gen^l or the State Governments. On the question for commitment, it passed in the negative. N. H. ay. Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. M^r Pinkney then withdrew his proposition. The 1^{st} sect. of Art: VII being so amended as to read "The Legislature _shall_ fulfil the engagements and discharge the debts of the U. S. & shall have the power to lay & collect taxes duties imposts & excises," was agreed to. M^r Butler expressed his dissatisfaction lest it should compel payment as well to the Blood-suckers who had speculated on the distresses of others, as to those who had fought & bled for their country. He would be ready he said to-morrow to vote for a discrimination between those classes of people, and gave notice that he should move for a reconsideration. Art IX Sect. 1. being resumed, to wit "The Senate of the U. S. shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court." M^r Madison observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties. M^r Gov^r Morris did not know that he should agree to refer the making of Treaties to the Senate at all, but for the present w^d move to add, as an amendment to the section after "Treaties"--"but no Treaty shall be binding on the U. S. which is not ratified by a law." M^r Madison suggested the inconvenience of requiring a legal _ratification_ of treaties of alliance for the purposes of war &c &c." M^r Ghorum. Many other disadvantages must be experienced if treaties of peace & all negotiations are to be previously ratified--and if not previously, the Ministers would be at a loss how to proceed. What would be the case in G. Britain if the King were to proceed in this manner. American Ministers must go abroad not instructed by the same Authority (as will be the case with other Ministers) which is to ratify their proceedings. M^r Gov^r Morris. As to treaties of alliance, they will oblige foreign powers to send their ministers here the very thing we should wish for. Such treaties could not be otherwise made, if his amendment sh^d succeed. In general he was not solicitious to multiply & facilitate Treaties. He wished none to be made with G. Britain, till she should be at war. Then a good bargain might be made with her. So with other foreign powers. The more difficulty in making treaties, the more value will be set on them. M^r Wilson. In the most important Treaties, the King of G. Britain being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of M^r Morris' will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port. M^r Dickinson concurred in the amendment, as most safe and proper, tho' he was sensible it was unfavorable to the little States, w^{ch} would otherwise have an _equal_ share in making Treaties. Doc^r Johnson thought there was something of solecism in saying that the acts of a minister with plenipotentiary powers from one Body, should depend for ratification on another Body. The Example of the King of G. B. was not parallel. Full & compleat power was vested in him. If the Parliament should fail to provide the necessary means of execution, the Treaty would be violated. M^r Ghorum in answer to M^r Gov^r Morris, said that negotiations on the spot were not to be desired by us, especially if the whole Legislature is to have any thing to do with Treaties. It will be generally influenced by two or three men, who will be corrupted by the Ambassadors here. In such a Government as ours, it is necessary to guard against the Government itself being seduced. M^r Randolph observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the motion of M^r Gov^r Morris should be postponed, and on this question It was lost the States being equally divided. Mass^{ts} no. Con^t no. N. J. ay. Pen^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. On M^r Gov^r Morris motion Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a no. N. C. div^d. S. C. no. Geo. no. The several clauses of Sect: 1. Art IX, were then separately postponed after inserting "and other public ministers" next after "ambassadors." M^r Madison hinted for consideration, whether a distinction might not be made between different sorts of Treaties--allowing the President & Senate to make Treaties eventual and of alliance for limited terms--and requiring the concurrence of the whole Legislature in other Treaties. The 1^{st} Sect Art IX. was finally referred nem: con: to the committee of Five, and the House then Adjourned. FRIDAY AUGUST 24. 1787. IN CONVENTION Governour Livingston, from the Committee of Eleven, to whom were referred the two remaining clauses of the 4^{th} Sect & the 5 & 6 Sect: of the 7^{th}. Art: delivered in the following Report: "Strike out so much of the 4^{th} Sect: as was referred to the Committee and insert--'The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800, but a tax or duty may be imposed on such migration or importation at a rate not exceeding the average of the duties laid on imports.'" "The 5 Sect: to remain as in the Report." "The 6 Sect, to be stricken out." M^r Butler, according to notice, moved that clause 1^{st} sect. 1. of art VII, as to the discharge of debts, be reconsidered tomorrow. He dwelt on the division of opinion concerning the domestic debts, and the different pretensions of the different classes of holders. Gen^l Pinkney 2^{ded} him. M^r Randolph wished for a reconsideration in order to better the expression, and to provide for the case of the State debts as is done by Congress. On the question for reconsidering N. H. no. Mass. ay. Con^t ay. N. J. ay. Pen^a absent. Del. ay. M^d no. V^a ay. N. C. absent. S. C. ay. Geo. ay.--and tomorrow assigned for the reconsideration. Sect: 2 & 3 of art: IX being taken up, M^r Rutlidge said this provision for deciding controversies between the States was necessary under the Confederation, but will be rendered unnecessary by the National Judiciary now to be established, and moved to strike it out. Doc^r Johnson 2^{ded} the motion. M^r Sherman concurred: so did M^r Dayton. M^r Williamson was for postponing instead of striking out, in order to consider whether this might not be a good provision, in cases where the Judiciary were interested or too closely connected with the parties. M^r Ghorum had doubts as to striking out. The Judges might be connected with the States being parties--He was inclined to think the mode proposed in the clause would be more satisfactory than to refer such cases to the Judiciary. On the Question for postponing the 2^d & 3^d Section it passed in the negative. N. H. ay. Mass^{ts} no. Con^t no. N. J. no. Pen^a abs^t. Del. no. M^d no. V^a no. N. C. ay. S. C. no. Geo. ay. M^r Wilson urged the striking out, the Judiciary being a better provision. On Question for striking out 2 & 3 Sections Art: IX N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a abs^t. Del. ay. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. no. Art X. Sect. 1. "The Executive power of the U. S. shall be vested in a single person. His stile shall be "The President of the U. S. of America" and his title shall be "His Excellency." He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time." On the question for vesting the power in a _single person_--It was agreed to nem: con: So also on the _stile_ and _title_. M^r Rutlidge moved to insert "joint" before the word "ballot," as the most convenient mode of electing. M^r Sherman objected to it as depriving the _States_ represented in the _Senate_ of the negative intended them in that house. M^r Ghorum said it was wrong to be considering at every turn whom the Senate would represent. The public good was the true object to be kept in view. Great delay and confusion would ensue if the two Houses sh^d vote separately, each having a negative on the choice of the other. M^r Dayton. It might be well for those not to consider how the Senate was constituted, whose interest it was to keep it out of sight.--If the amendment should be agreed to, a _joint_ ballot would in fact give the appointment to one House. He could never agree to the clause with such an amendment. There could be no doubt of the two Houses separately concurring in the same person for President. The importance & necessity of the case would ensure a concurrence. M^r Carrol moved to strike out "by the Legislature" and insert "by the people." M^r Wilson 2^{ded}. him & on the question N. H. no. Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Brearly was opposed to the motion for inserting the word "joint." The argument that the small States should not put their hands into the pockets of the large ones did not apply in this case. M^r Wilson urged the reasonableness of giving the larger States a larger share of the appointment, and the danger of delay from a disagreement of the two Houses. He remarked also that the Senate had peculiar powers balancing the advantage given by a joint ballot in this case to the other branch of the Legislature. M^r Langdon. This general officer ought to be elected by the joint & general voice. In N. Hampshire the mode of separate votes by the two Houses was productive of great difficulties. The negative of the Senate would hurt the feelings of the man elected by the votes of the other branch. He was for inserting "joint" tho' unfavorable to N. Hampshire as a small State. M^r Wilson remarked that as the President of the Senate was to be the President of the U. S. that Body in cases of vacancy might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required. M^r Madison. If the amendment be agreed to the rule of voting will give to the largest State, compared with the smallest, an influence as 4 to 1 only, altho the population is as 10 to 1. This surely cannot be unreasonable as the President is to act for the _people_ not for the _States_. The President of the _Senate_ also is to be occasionally President of the U. S. and by his negative alone can make 3/4 of the other branch necessary to the passage of a law. This is another advantage enjoyed by the Senate. On the question for inserting "joint," it passed in the affirmative. N. H. ay. Mass^{ts} ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no. M^r Dayton then moved to insert, after the word "Legislatures" the words "each State having one vote." M^r Brearly 2^{ded} him, and on the question it passed in the negative. N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay. M^r Pinkney moved to insert after the word "Legislature" the words "to which election a majority of the votes of the members present shall be required" & on this question, it passed in the affirmative. N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Read moved "that in case the numbers for the two highest in votes should be equal, then the President of the Senate shall have an additional casting vote," which was disagreed to by a general negative. M^r Gov^r Morris opposed the election of the President by the Legislature. He dwelt on the danger of rendering the Executive uninterested in maintaining the rights of his Station, as leading to Legislative tyranny. If the Legislature have the Executive dependent on them, they can perpetuate & support their usurpations by the influence of tax-gatherers & other officers, by fleets armies &c. Cabal & corruption are attached to that mode of election: so also is ineligibility a second time. Hence the Executive is interested in Courting popularity in the Legislature by sacrificing his Executive Rights; & then he can go into that Body, after the expiration of his Executive office, and enjoy there the fruits of his policy. To these considerations he added that rivals would be continually intriguing to oust the President from his place. To guard against all these evils he moved that the President "shall be chosen by Electors to be chosen by the People of the several States." M^r Carrol 2^{ded} him & on the question it passed in the negative N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. M^r Dayton moved to postpone the consideration of the two last clauses of Sect. 1. art X. which was disagreed to without a count of the States. M^r Broome moved to refer the two clauses to a Committee of a member from each State, & on the question, it failed the States being equally divided. N. H. no. Mas. no. C^t div^d. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. On the question taken on the first part of M^r Gov^r Morris's motion to wit "shall be chosen by electors" as an abstract question, it failed the States being equally divided, N. H. no. Mas. abs^t. C^t div^d. N. Jersey ay. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. no. S. C. no. Geo. no. The consideration of the remaining clauses of Sect. 1. art. X. was then postponed till tomorrow at the instance of the Deputies of New Jersey. Sect. 2. Art: X being taken up, the word information was transposed & inserted after "Legislature." On motion of M^r Gov^r Morris, "he may" was struck out, & "and" inserted before "recommend" in the clause 2^d sect 2^d art: X. in order to make it the _duty_ of the President to recommend, & thence prevent umbrage or cavil at his doing it. M^r Sherman objected to the sentence "and shall appoint officers in all cases not otherwise provided for by this Constitution." He admitted it to be proper that many officers in the Executive Department should be so appointed--but contended that many ought not, as general officers in the army in time of peace &c. Herein lay the corruption in G. Britain. If the Executive can model the army, he may set up an absolute Government; taking advantage of the close of a war and an army commanded by his creatures. James 2^d was not obeyed by his officers because they had been appointed by his predecessors not by himself. He moved to insert "or by law" after the word "Constitution." On motion of M^r Madison "officers" was struck out and "to offices" inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the Legislature. On the question for inserting "or by law" as moved by M^r Sherman N. H. no. Mas. no. C^t ay. N. J. no. Pen^a no. Del. no. M^d no. V^a no. N. C. absent. S. C. no. Geo. no. M^r Dickinson moved to strike out the words "and shall appoint to offices in all cases not otherwise provided for by this Constitution" and insert--"and shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law." M^r Randolph observed that the power of appointments was a formidable one both in the Executive & Legislative hands--and suggested whether the Legislature should not be left at liberty to refer appointments in some cases, to some State authority. M^r Dickenson's motion, it passed in the affirmative. N. H. no. Mas. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay. M^r Dickinson then moved to annex to his last amendment "except where by law the appointment shall be vested in the Legislatures or Executives of the several States." M^r Randolph 2^{ded} the motion. M^r Wilson. If this be agreed to it will soon be a standing instruction from the State Legislatures to pass no law creating offices, unless the app^{ts} be referred to them. M^r Sherman objected to "Legislatures" in the motion, which was struck out by consent of the movers. M^r Gov^r Morris. This would be putting it in the power of the States to say, "You shall be viceroys but we will be viceroys over you"-- The motion was negatived without a Count of the States-- Ordered unanimously that the order respecting the adjournment at 4 OClock be repealed, & that in future the House assemble at 10 OC. & adjourn at 3 OC. Adjourned. SATURDAY AUGUST 25. 1787. IN CONVENTION The 1^{st} clause of 1 Sect. of art: VII being reconsidered Col. Mason objected to the term "_shall_"--fullfil the engagements & discharge the debts &c. as too strong. It may be impossible to comply with it. The Creditors should be kept in the same plight. They will in one respect be necessarily and properly in a better. The Government will be more able to pay them. The use of the term _shall_ will beget speculations and increase the pestilent practice of stock-jobbing. There was a great distinction between original creditors & those who purchased fraudulently of the ignorant and distressed. He did not mean to include those who have bought Stock in open market. He was sensible of the difficulty of drawing the line in this case, but he did not wish to preclude the attempt. Even fair purchasers at 4. 5. 6. 8 for 1 did not stand on the same footing with the first Holders, supposing them not to be blameable. The interest they receive even in paper, is equal to their purchase money. What he particularly wished was to leave the door open for buying up the securities, which he thought would be precluded by the term "shall" as requiring _nominal payment_, & which was not inconsistent with his ideas of public faith. He was afraid also the word "_shall_," might extend to all the old continental paper. M^r Langdon wished to do no more than leave the Creditors in statu quo. M^r Gerry said that for himself he had no interest in the question being not possessed of more of the securities than would, by the interest, pay his taxes. He would observe however that as the public had received the value of the literal amount, they ought to pay that value to some body. The frauds on _the soldiers_ ought to have been foreseen. These poor & ignorant people could not but part with their securities. There are other creditors who will part with any thing rather than be cheated of the capital of their advances. The interest of the States he observed was different on this point, some having more, others less than their proportion of the paper. Hence the idea of a scale for reducing its value had arisen. If the public faith would admit, of which he was not clear, he would not object to a revision of the debt so far as to compel restitution to the ignorant & distressed, who have been defrauded. As to stock-jobbers he saw no reason for the censures thrown on them. They keep up the value of the paper. Without them there would be no market. M^r Butler said he meant neither to increase nor diminish the security of the Creditors. M^r Randolph moved to postpone the clause in favor of the following "All debts contracted & engagements entered into, by or under the authority of Cong^s shall be as valid ag^{st} the U. States under this constitution as under the Confederation." Doc^r Johnson. The debts are debts of the U. S. of the great Body of America. Changing the Government cannot change the obligation of the U. S. which devolves of course on the new Government. Nothing was in his opinion necessary to be said. If any thing, it should be a mere declaration as moved by M^r Randolph. M^r Gov^r Morris, said he never had become a public Creditor that he might urge with more propriety the compliance with public faith. He had always done so and always would, and preferr'd the term "_shall_" as the most explicit. As to _buying up_ the debt, the term "_shall_" was not inconsistent with it, if provision be first made for paying the interest: if not, such an expedient was a mere evasion. He was content to say nothing as the New Government would be bound of course, but would prefer the clause with the term "_shall_," because it would create many friends to the plan. On M^r Randolph's Motion N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. Mary^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Sherman thought it necessary to connect with the clause for laying taxes duties &c. an express provision for the object of the old debts &c.--and moved to add to the 1^{st} clause of 1^{st} sect. art VII "for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare." The proposition, as being unnecessary was disagreed to, Connecticut alone, being in the affirmative. The Report of the Committee of eleven (see friday the 24^{th} instant) being taken up, Gen^l Pinkney moved to strike out the words, "the year eighteen hundred" as the year limiting the importation of slaves, and to insert the words "the year eighteen hundred and eight." M^r Ghorum 2^{ded} the motion. M^r Madison. Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonourable to the National character than to say nothing about it in the Constitution. On the motion; which passed in the affirmative, N. H. ay. Mas. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay. M^r Gov^r Morris was for making the clause read at once, "the importation of slaves into N. Carolina, S. Carolina & Georgia shall not be prohibited &c." This he said would be most fair and would avoid the ambiguity by which, under the power with regard to naturalization, the liberty reserved to the States might be defeated. He wished it to be known also that this part of the Constitution was a compliance with those States. If the change of language however should be objected to by the members from those States, he should not urge it. Col. Mason was not against using the term "slaves" but ag^{st} naming N. C. S. C. & Georgia, lest it should give offence to the people of those States. M^r Sherman liked a description better than the terms proposed, which had been declined by the old Cong^s & were not pleasing to some people. M^r Clymer concurred with M^r Sherman. M^r Williamson said that both in opinion & practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in S. C. & Georgia on those terms, than to exclude them from the Union. M^r Gov^r Morris withdrew his motion. M^r Dickenson wished the clause to be confined to the States which had not themselves prohibited the importation of slaves, and for that purpose moved to amend the clause so as to read "The importation of slaves into such of the States as shall permit the same shall not be prohibited by the Legislature of the U. S. until the year 1808"--which was disagreed to nem: con:[42] [42] In the printed Journals, Con^t Virg^a & Georgia voted in the affirmative.--Madison's Note. The first part of the report was then agreed to, amended as follows. "The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1808." N. H. Mas. Con. M^d N. C. S. C. Geo: ay. N. J. P^a Del. Virg^a no. M^r Baldwin in order to restrain & more explicitly define "the average duty" moved to strike out of the 2^d part the words "average of the duties laid on imports" and insert "common impost on articles not enumerated" which was agreed to nem: cont: M^r Sherman was ag^{st} this 2^d part, as acknowledging men to be property, by taxing them as such under the character of slaves. M^r King & M^r Langdon considered this as the price of the 1^{st} part. Gen^l Pinkney admitted that it was so. Col. Mason. Not to tax, will be equivalent to a bounty on the importation of slaves. M^r Ghorum thought that M^r Sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them. M^r Gov^r Morris remarked that as the clause now stands it implies that the Legislature may tax freemen imported. M^r Sherman in answer to M^r Ghorum observed that the smallness of the duty shewed revenue to be the object, not the discouragement of the importation. M^r Madison thought it wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not like merchandize, consumed, &c. Col. Mason (in answ^r to Gov^r Morris) the provision as it stands was necessary for the case of convicts in order to prevent the introduction of them. It was finally agreed nem. contrad: to make the clause read "but a tax or duty may be imposed on such importation not exceeding ten dollars for each person," and then the 2^d part as amended was agreed to. Sect 5. art. VII was agreed to nem: con: as reported. Sect. 6. art. VII. in the Report, was postponed. On motion of M^r Madison 2^{ded} by M^r Gov^r Morris Article VIII was reconsidered and after the words "all treaties made," were inserted nem: con: the words "or which shall be made." This insertion was meant to obviate all doubt concerning the force of treaties preexisting, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties. M^r Carrol and M^r L. Martin expressed their apprehensions, and the probable apprehensions of their constituents, that under the power of regulating trade the General Legislature, might favor the ports of particular States, by requiring vessels destined to or from other States to enter & clear thereat, as vessels belonging or bound to Baltimore, to enter & clear at Norfolk &c. They moved the following proposition "The Legislature of the U. S. shall not oblige vessels belonging to citizens thereof, or to foreigners, to enter or pay duties or imposts in any other State than in that to which they may be bound, or to clear out in any other than the State in which their cargoes may be laden on board; nor shall any privilege or immunity be granted to any vessel on entering or clearing out, or paying duties or imposts in one State in preference to another." M^r Ghorum thought such a precaution unnecessary; & that the revenue might be defeated, if vessels could run up long rivers, through the jurisdiction of different States without being required to enter, with the opportunity of landing & selling their cargoes by the way. M^r M^cHenry & Gen^l Pinkney made the following propositions "Should it be judged expedient by the Legislature of the U. S. that one or more port for collecting duties or imposts other than those ports of entrance & clearance already established by the respective States, should be established, the Legislature of the U. S. shall signify the same to the Executives of the respective States, ascertaining the number of such ports judged necessary; to be laid by the said Executives before the Legislatures of the States at their next session; and the Legislature of the U. S. shall not have the power of fixing or establishing the particular ports for collecting duties or imposts in any State, except the Legislature of such State shall neglect to fix and establish the same during their first session to be held after such notification by the Legislature of the U. S. to the Executive of such State." "All duties imposts & excises, prohibitions or restraints laid or made by the Legislature of the U. S. shall be uniform & equal throughout the U. S." These several propositions were referred nem: con: to a committee composed of a member from each State. The committee appointed by ballot were M^r Langdon, M^r Ghorum, M^r Sherman, M^r Dayton, M^r Fitzimmons, M^r Read, M^r Carrol, M^r Mason, M^r Williamson, M^r Butler, M^r Few. On the question now taken on M^r Dickinson's motion of yesterday, allowing appointments to offices, to be referred by the Gen^l Legislature to the Executives of the several States as a further amendment to sect. 2. art. X, the votes were N. H. no. Mas. no. C^t ay. P^a no. Del. no. M^d divided. V^a ay. N. C. no. S. C. no. Geo. ay. In amendment of the same section, "other public Ministers" were inserted after "ambassadors." M^r Gov^r Morris moved to strike out of the section--"and may correspond with the supreme Executives of the several States" as unnecessary and implying that he could not correspond with others. M^r Broome 2^{ded} him. On the question N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. "Shall receive ambassadors & other public Ministers," agreed to, nem. con. M^r Sherman moved to amend the "power to grant reprieves & pardon" so as to read "to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate." On the question N. H. no. Mas. no. C^t ay. P^a no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. "except in cases of impeachment" inserted nem. con: after "pardon." On the question to agree to--"but his pardon shall not be pleadable in bar" N. H. ay. Mas. no. C^t no. P^a no. Del. no. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. no. Adjourned. MONDAY AUG^{ST} 27^{TH}. 1787. IN CONVENTION Art X. Sect 2. being resumed, M^r L. Martin moved to insert the words "after conviction" after the words "reprieves and pardons." M^r Wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen.--M^r L. Martin withdrew his motion. M^r Sherman moved to amend the clause giving the Executive the command of the Militia, so as to read "and of the Militia of the several States, _when called into the actual service of the U. S._" and on the Question N. H. ay. Mas. abs^t. C^t ay. N. J. abs^t. P^a ay. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay. The clause for removing the President on impeachment by the House of Rep^s and conviction in the supreme Court, of Treason, Bribery or corruption, was postponed nem: con: at the instance of M^r Gov^r Morris, who thought the Tribunal an improper one, particularly, if the first Judge was to be of the privy Council. M^r Gov^r Morris objected also to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice. M^r Madison added as a ground of objection that the Senate might retard the appointment of a President in order to carry points whilst the revisionary power was in the President of their own body, but suggested that the Executive powers during a vacancy, be administered by the persons composing the Council to the President. M^r Williamson suggested that the Legislature ought to have power to provide for occasional successors, & moved that the last clause (of 2 sect. X art:) relating to a provisional successor to the President, be postponed. M^r Dickinson 2^{ded} the postponement, remarking that it was too vague. What is the extent of the term "disability" and who is to be the judge of it? The postponement was agreed to nem: con: Col: Mason & M^r Madison moved to add to the oath to be taken by the supreme Executive "and will to the best of my judgment and power preserve protect and defend the Constitution of the U. S." M^r Wilson thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary.-- On the question N. H. ay. Mas. abs^t. C^t ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. ay. Geo. ay. Art: XI. being taken up. Doc^r Johnson suggested that the judicial power ought to extend to equity as well as law--and moved to insert the words, "both in law and equity" after the words "U. S." in the 1^{st} line of sect 1. M^r Read objected to vesting these powers in the same Court. On the question N. H. ay. Mas. absent. C^t ay. N. J. abs^t. P. ay. Del. no. M^d no. Virg^a ay. N. C. abs^t. S. C. ay. Geo. ay. On the question to agree to Sect. 1. art. XI. as amended N. H. ay. Mas. abs^t. C^t ay. P^a ay. N. J. abs^t. Del. no. M^d no. V^a ay. N. C. abs^t. S. C. ay. Geo. ay. M^r Dickinson moved as an amendment to sect. 2. art XI after the words "good behavior" the words "provided that they may be removed by the Executive on the application by the Senate and House of Representatives." M^r Gerry 2^{ded} the motion. M^r Gov^r Morris thought it a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removeable without a trial. Besides it was fundamentally wrong to subject Judges to so arbitrary an authority. M^r Sherman saw no contradiction or impropriety if this were made a part of the Constitutional regulation of the Judiciary establishment. He observed that a like provision was contained in the British Statutes. M^r Rutlidge. If the Supreme Court is to judge between the U. S. and particular States, this alone is an insuperable objection to the motion. M^r Wilson considered such a provision in the British Government as less dangerous than here, the House of Lords & House of Commons being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had _successively_ offended by his independent conduct, both houses of Parliament. Had this happened at the same time, he would have been ousted. The Judges would be in a bad situation if made to depend on any gust of faction which might prevail in the two branches of our Gov^t. M^r Randolph opposed the motion as weakening too much the independence of the Judges. M^r Dickinson was not apprehensive that the Legislature composed of different branches constructed on such different principles, would improperly unite for the purpose of displacing a Judge. On the question for agreeing to M^r Dickinson's Motion N. H. no. Mas. abs^t. C^t ay. N. J. abs^t. P^a no. Del. no. M^d no. V^a no. N. C. abs^t. S. C. no. Geo. no. M^r Madison and M^r M^cHenry moved to reinstate the words "increased or" before the word "diminished" in 2^d sect, art. XI. M^r Gov^r Morris opposed it for reasons urged by him on a former occasion-- Col: Mason contended strenuously for the motion. There was no weight he said in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries so made as not to affect persons in office, and this was the only argument on which much stress seemed to have been laid. Gen^l Pinkney. The importance of the Judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the U. S. can allow in the first instance. He was not satisfied with the expedient mentioned by Col: Mason. He did not think it would have a good effect or a good appearance, for new Judges to come in with higher salaries than the old ones. M^r Gov^r Morris said the expedient might be evaded & therefore amounted to nothing. Judges might resign, & then be re-appointed to increased salaries. On the question N. H. no. C^t no. P^a no. Del. no. M^d div^d. V^a ay. S. C. no. Geo. abs^t also Mas^{ts}. & N. J. & N. C. M^r Randolph & M^r Madison then moved to add the following words to art. XI sect. 2. "nor increased by any Act of the Legislature which shall operate before the expiration of three years after the passing thereof." On the question N. H. no. C^t no. P^a no. Del. no. M^d ay. V^a ay. S. C. no. Geo. abs^t also Mas. N. J. & N. C. Sect. 3. art. XI. being taken up, the following clause was postponed viz, "to the trial of impeachments of officers of the U. S." by which the jurisdiction of the supreme Court was extended to such cases. M^r Madison & M^r Gov^r Morris moved to insert after the word "controversies" the words "to which the U. S. shall be a party," which was agreed to nem: con: Doc^r Johnson moved to insert the words "this Constitution and the" before the word "laws." M^r Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department. The motion of Doc^r Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature. On motion of M^r Rutlidge the words "passed by the Legislature" were struck out, and after the words "U. S." were inserted nem. con: the words "and treaties made or which shall be made under their authority" conformably to a preceding amendment in another place. The clause "in cases of impeachment," was postponed. M^r Gov^r Morris wished to know what was meant by the words "In all the cases before-mentioned it (jurisdiction) shall be appellate with such exceptions &c.," whether it extended to matters of fact as well as law--and to cases of common law as well as civil law. M^r Wilson. The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed. M^r Dickinson moved to add after the word "appellate" the words "both as to law & fact" which was agreed to nem: con: M^r Madison & M^r Gov^r Morris moved to strike out the beginning of the 3^d sect. "The jurisdiction of the supreme Court" & to insert the words "the Judicial power" which was agreed to nem: con: The following motion was disagreed to, to wit to insert "In all the other cases beforementioned the Judicial power shall be exercised in such manner as the Legislature shall direct" Del. Virg^a ay. N. H. Con. P. M. S. C. G. no. On a question for striking out the last sentence of the sect. 3. "The Legislature may assign &c." N. H. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay. S. C. ay. Geo. ay. M^r Sherman moved to insert after the words "between Citizens of different States" the words, "between Citizens of the same State claiming lands under grants of different States"--according to the provision in the 9th Art: of the Confederation--which was agreed to nem: con: Adjourned. TUESDAY AUGUST 28 1787. IN CONVENTION M^r Sherman from the Committee to whom were referred several propositions on the 25^{th} instant, made the following report:-- That there be inserted after the 4 clause of 7^{th}. section "Nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another, or oblige vessels bound to or from any State to enter clear or pay duties in another and all tonnage, duties, imposts & excises laid by the Legislature shall be uniform throughout the U. S." Art XI Sect. 3, It was moved to strike out the words "it shall be appellate" to insert the words "the supreme Court shall have appellate jurisdiction,"--in order to prevent uncertainty whether "it" referred to the _supreme Court_, or to the _Judicial power_. On the question N. H. ay. Mas. ay. C^t ay. N. J. abs^t. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Sect. 4. was so amended nem. con: as to read "The trial of all crimes (except in cases of impeachment) shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, then the trial shall be at such place or places as the Legislature may direct." The object of this amendment was to provide for trial by jury of offences committed out of any State. M^r Pinkney urged the propriety of securing the benefit of the Habeas corpus in the most ample manner, moved "that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months." M^r Rutlidge was for declaring the Habeas Corpus inviolable. He did not conceive that a suspension could ever be necessary at the same time through all the States. M^r Gov^r Morris moved that "The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of Rebellion or invasion the public safety may require it." M^r Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail. The first part of M^r Gov^r Morris' motion, to the word "unless" was agreed to nem: con:--on the remaining part; N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. Sec. 5. of art: XI. was agreed to _nem_: con.[43] [43] The vote on this section as stated in the printed Journal is not unanimous: the statement here is probably the right one.--Madison's Note. Art: XII being taken up. M^r Wilson & M^r Sherman moved to insert after the words "coin money" the words "nor emit bills of credit, nor make any thing but gold & silver coin a tender in payment of debts" making these prohibitions absolute, instead of making the measures allowable (as in the XIII art:) _with the consent of the Legislature of the U. S._ M^r Ghorum thought the purpose would be as well secured by the provisions of art: XIII which makes the consent of the Gen^l Legislature necessary, and that in that mode no opposition would be excited; whereas an absolute prohibition of paper money would rouse the most desperate opposition from its partizans. M^r Sherman thought this a favorable crisis for crushing paper money. If the consent of the Legislature could authorize emissions of it, the friends of paper money would make every exertion to get into the Legislature in order to license it. The question being divided; on the 1^{st} part--"nor emit bills of credit" N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay. The remaining part of M^r Wilson's & Sherman's motion was agreed to nem: con: M^r King moved to add, in the words used in the Ordinance of Cong^r establishing new States, a prohibition on the States to interfere in private contracts. M^r Gov^r Morris. This would be going too far. There are a thousand laws, relating to bringing actions--limitations, of actions & which affect contracts. The Judicial power of the U. S. will be a protection in cases within their jurisdiction; and within the State itself a majority must rule, whatever may be the mischief done among themselves. M^r Sherman. Why then prohibit bills of credit? M^r Wilson was in favor of M^r King's motion. M^r Madison admitted that inconveniences might arise from such a prohibition but thought on the whole it would be overbalanced by the utility of it. He conceived however that a negative on the State laws could alone secure the effect. Evasions might and would be devised by the ingenuity of the Legislatures. Col: Mason. This is carrying the restraint too far. Cases will happen that cannot be foreseen, where some kind of interference will be proper & essential. He mentioned the case of limiting the period for bringing actions on open account--that of bonds after a certain lapse of time--asking whether it was proper to tie the hands of the States from making provision in such cases? M^r Wilson. The answer to these objections is that retrospective interferences only are to be prohibited. M^r Madison. Is not that already done by the prohibition of ex post facto laws, which will oblige the Judges to declare such interferences null & void. M^r Rutlidge moved instead of M^r King's Motion to insert--"nor pass bills of attainder nor retrospective[44] laws" on which motion N. H. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. Virg^a no. N. C. ay. S. C. ay. Geo. ay. [44] In the printed Journal--ex post facto.--Madison's Note. M^r Madison moved to insert after the word "reprisal" (art. XII) the words "nor lay embargoes." He urged that such acts by the States would be unnecessary--impolitic--and unjust. M^r Sherman thought the States ought to retain this power in order to prevent suffering & injury to their poor. Col: Mason thought the amendment would be not only improper but dangerous, as the Gen^l Legislature would not sit constantly and therefore could not interpose at the necessary moments. He enforced his objection by appealing to the necessity of sudden embargoes during the war, to prevent exports, particularly in the case of a blockade. M^r Gov^r Morris considered the provision as unnecessary; the power of regulating trade between State & State already vested in the Gen^l Legislature, being sufficient. On the question N. H. no. Mas. ay. C^t no. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. no. M^r Madison moved that the words "nor lay imposts or duties on imports" be transferred from art: XIII where the consent of the Gen^l Legislature may license the act--into art: XII which will make the prohibition of the States absolute. He observed that as the States interested in this power by which they could tax the imports of their neighbors passing thro' their markets, were a majority, they could give the consent of the Legislature, to the injury of N. Jersey, N. Carolina &c. M^r Williamson 2^{ded} the motion. M^r Sherman thought the power might safely be left to the Legislature of the U. States. Col: Mason observed that particular States might wish to encourage by impost duties certain manufactures for which they enjoyed natural advantages, as Virginia, the manufacture of Hemp &c. M^r Madison. The encouragement of Manufactures in that mode requires duties not only on imports directly from foreign Countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a Gen^l Government over commerce.[45] [45] August 28, 1787, New York, Hamilton wrote to King: "I wrote to you some days since [August 20] to request you to inform me when there was a prospect of your finishing, as I intended to be with you, for certain reasons, before the conclusion. "It is whispered here that some late changes in your scheme have taken place which give it a higher tone. Is this the case?"--King's _Life and Correspondence of Rufus King_, _I_, 258. On the question N. H. ay. Mas. no. C^t no. N. J. ay. P^a no. Del^a ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no. Art: XII as amended agreed to nem: con: Art: XIII being taken up. M^r King moved to insert after the word "imports" the words "or exports," so as to prohibit the States from taxing either, & on this question it passed in the affirmative. N. H. ay. Mas. ay. C^t no. N. J. ay. P. ay. Del. ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no. M^r Sherman moved to add after the word "exports"--the words "nor with such consent but for the use of the U. S."--so as to carry the proceeds of all State duties on imports & exports, into the common Treasury. M^r Madison liked the motion as preventing all State imposts--but lamented the complexity we were giving to the commercial system. M^r Gov^r Morris thought the regulation necessary to prevent the Atlantic States from endeavoring to tax the Western States--& promote their interest by opposing the navigation of the Mississippi which would drive the Western people into the arms of G. Britain. M^r Clymer thought the encouragement of the Western Country was suicide on the old States. If the States have such different interests that they cannot be left to regulate their own manufactures without encountering the interests of other States, it is a proof that they are not fit to compose one nation. M^r King was afraid that the regulation moved by M^r Sherman would too much interfere with the policy of States respecting their manufactures, which may be necessary. Revenue he reminded the House was the object of the general Legislature. On M^r Sherman's motion N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Art XIII was then agreed to as amended. Art. XIV was taken up. Gen^l Pinkney was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves. On the question on Art: XIV. N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. divided. Art: XV. being taken up, the words "high misdemesnor," were struck out, and "other crime" inserted, in order to comprehend all proper cases; it being doubtful whether "high misdemeanor" had not a technical meaning too limited. M^r Butler and M^r Pinkney moved "to require fugitive slaves and servants to be delivered up like criminals." M^r Wilson. This would oblige the Executive of the State to do it at the public expence. M^r Sherman saw no more propriety in the public seizing and surrendering a slave or servant, than a horse. M^r Butler withdrew his proposition in order that some particular provision might be made apart from this article. Art XV as amended was then agreed to nem: con: Adjourned. WEDNESDAY AUGUST 29^{TH}. 1787. IN CONVENTION Art: XVI. taken up. M^r Williamson moved to substitute in place of it, the words of the Articles of Confederation on the same subject. He did not understand precisely the meaning of the article. M^r Wilson and Doc^r Johnson supposed the meaning to be that Judgments in one State should be the ground of actions in other States, & that acts of the Legislatures should be included, for the sake of Acts of insolvency &c. M^r Pinkney moved to commit Art XVI with the following proposition "To establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange." M^r Ghorum was for agreeing to the article, and committing the proposition. M^r Madison was for committing both. He wished the Legislature might be authorized to provide for the _execution_ of Judgments in other States, under such regulations as might be expedient. He thought that this might be safely done, and was justified by the nature of the Union. M^r Randolph said there was no instance of one nation executing judgments of the Courts of another nation. He moved the following proposition: Executive or Judiciary shall be attested & exemplified under the seal thereof, such attestation and exemplification, shall be deemed in other States as full proof of the existence of that act--and its operation shall be binding in every other State, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the State, wherein the said act was done." On the question for committing Art: XVI with M^r Pinkney's motion N. H. no. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. P^a ay. N. C. ay. S. C. ay. Geo. ay. The motion of M^r Randolph was also committed nem: con: M^r Gov^r Morris moved to commit also the following proposition on the same subject. "Full faith ought to be given in each State to the public acts, records, and judicial proceedings of every other State; and the Legislature shall by general laws, determine the proof and effect of such acts, records, and proceedings" and it was committed nem. contrad: The Committee appointed for these references, were M^r Rutlidge, M^r Randolph, M^r Gorham, M^r Wilson, & M^r Johnson. M^r Dickenson mentioned to the House that on examining Blackstone's Commentaries, he found that the term "ex post facto" related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for this purpose would be requisite. Art: VII Sect. 6 by y^e Co[~m]ittee of eleven reported to be struck out (see the 24 instant) being now taken up. M^r Pinkney moved to postpone the Report in favor of the following proposition--"That no act of the Legislature for the purpose of regulating the commerce of the U. S. with foreign powers among the several States, shall be passed without the assent of two thirds of the members of each House." He remarked that there were five distinct commercial interests. 1. the fisheries & W. India trade, which belonged to the N. England States. 2. the interest of N. York lay in a free trade. 3. Wheat & flour the Staples of the two middle States (N. J. & Penn^a). 4. Tob^o the staple of Maryl^d & Virginia & partly of N. Carolina. 5. Rice & Indigo, the staples of S. Carolina & Georgia. These different interests would be a source of oppressive regulations if no check to a bare majority should be provided. States pursue their interests with less scruple than individuals. The power of regulating commerce was a pure concession on the part of the S. States. They did not need the protection of the N. States at present. M^r Martin 2^{ded} the motion. Gen^l Pinkney said it was the true interest of the S. States to have no regulation of commerce; but considering the loss brought on the commerce of the Eastern States by the revolution, their liberal conduct towards the views[46] of South Carolina, and the interest the weak South^n States had in being united with the strong Eastern States, he thought it proper that no fetters should be imposed on the power of making commercial regulations, and that his constituents though prejudiced against the Eastern States, would be reconciled to this liberality. He had himself, he said, prejudices ag^{st} the Eastern States before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever. [46] He meant the permission to import slaves. An understanding on the two subjects of _navigation_ and _slavery_, had taken place between those parts of the Union, which explains the vote on the motion depending, as well as the language of Gen^l Pinkney & others.--Madison's Note. M^r Clymer. The diversity of commercial interests of necessity creates difficulties, which ought not to be increased by unnecessary restrictions. The Northern & middle States will be ruined, if not enabled to defend themselves against foreign regulations. M^r Sherman, alluding to M^r Pinkney's enumeration of particular interests, as requiring a security ag^{st} abuse of the power; observed that the diversity was of itself a security, adding that to require more than a majority to decide a question was always embarrassing as had been experienced in cases requiring the votes of nine States in Congress. M^r Pinkney replied that his enumeration meant the five minute interests. It still left the two great divisions of Northern & Southern interests. M^r Gov^r Morris, opposed the object of the motion as highly injurious. Preferences to american ships will multiply them, till they can carry the Southern produce cheaper than it is now carried.--A navy was essential to security, particularly of the S. States, and can only be had by a navigation act encouraging american bottoms & seamen. In those points of view then alone, it is the interest of the S. States that navigation acts should be facilitated. Shipping he said was the worst & most precarious kind of property, and stood in need of public patronage. M^r Williamson was in favor of making two thirds instead of a majority requisite, as more satisfactory to the Southern people. No useful measure he believed had been lost in Congress for want of nine votes. As to the weakness of the Southern States, he was not alarmed on that account. The sickliness of their climate for invaders would prevent their being made an object. He acknowledged that he did not think the motion requiring 2/3 necessary in itself, because if a majority of the Northern States should push their regulations too far the S. States would build ships for themselves: but he knew the Southern people were apprehensive on this subject and would be pleased with the precaution. M^r Spaight was against the motion. The Southern States could at any time save themselves from oppression, by building ships for their own use. M^r Butler differed from those who considered the rejection of the motion as no concession on the part of the S. States. He considered the interest of these and of the Eastern States, to be as different as the interests of Russia and Turkey. Being notwithstanding desirous of conciliating the affections of the East: States, he should vote ag^{st} requiring 2/3 instead of a majority. Col: Mason. If the Gov^t is to be lasting, it must be founded in the confidence & affections of the people, and must be so constructed as to obtain these. The _Majority_ will be governed by their interests. The Southern States are the _minority_ in both Houses. Is it to be expected that they will deliver themselves bound hand & foot to the Eastern States, and enable them to exclaim, in the words of Cromwell on a certain occasion--"the lord hath delivered them into our hands." M^r Wilson took notice of the several objections and remarked that if every peculiar interest was to be secured, _unanimity_ ought to be required. The majority he said would be no more governed by interest than the minority. It was surely better to let the latter be bound hand and foot than the former. Great inconveniences had, he contended, been experienced in Congress from the article of confederation requiring nine votes in certain cases. M^r Madison went into a pretty full view of the subject. He observed that the disadvantage to the S. States from a navigation act, lay chiefly in a temporary rise of freight, attended however with an increase of South^n as well as Northern Shipping--with the emigration of Northern Seamen & merchants to the Southern States--& with a removal of the existing & injurious retaliations among the States on each other. The power of foreign nations to obstruct our retaliating measures on them by a corrupt influence would also be less if a majority sh^d be made competent than if 2/3 of each House sh^d be required to legislative acts in this case. An abuse of the power would be qualified with all these good effects. But he thought an abuse was rendered improbable by the provision of 2 branches--by the independence of the Senate, by the negative of the Executive, by the interest of Connecticut & N. Jersey which were agricultural, not commercial States; by the interior interest which was also agricultural in the most commercial States, by the accession of Western States which w^d be altogether agricultural. He added that the Southern States would derive an essential advantage in the general security afforded by the increase of our maritime strength. He stated the vulnerable situation of them all, and of Virginia in particular. The increase of the coasting trade, and of seamen, would also be favorable to the S. States, by increasing, the consumption of their produce. If the wealth of the Eastern should in a still greater proportion be augmented, that wealth w^d contribute the more to the public wants, and be otherwise a national benefit. M^r Rutlidge was ag^{st} the motion of his colleague. It did not follow from a grant of the power to regulate trade, that it would be abused. At the worst a navigation act could bear hard a little while only on the S. States. As we are laying the foundation for a great empire, we ought to take a permanent view of the subject and not look at the present moment only. He reminded the House of the necessity of securing the West India trade to this country. That was the great object, and a navigation act was necessary for obtaining it. M^r Randolph said that there were features so odious in the constitution as it now stands, that he doubted whether he should be able to agree to it. A rejection of the motion would compleat the deformity of the system. He took notice of the argument in favor of giving the power over trade to a majority, drawn from the opportunity foreign powers would have of obstructing retaliatory measures if two thirds were made requisite. He did not think there was weight in that consideration. The difference between a majority & two thirds did not afford room for such an opportunity. Foreign influence would also be more likely to be exerted on the President who could require three fourths by his negative. He did not mean however to enter into the merits. What he had in view was merely to pave the way for a declaration which he might be hereafter obliged to make if an accumulation of obnoxious ingredients should take place, that he could not give his assent to the plan. M^r Gorham. If the Government is to be so fettered as to be unable to relieve the Eastern States what motive can they have to join in it, and thereby tie their own hands from measures which they could otherwise take for themselves. The Eastern States were not led to strengthen the Union by fear for their own safety. He deprecated the consequences of disunion, but if it should take place it was the Southern part of the Continent that had most reason to dread them. He urged the improbability of a combination against the interest of the Southern States, the different situations of the Northern & Middle States being a security against it. It was moreover certain that foreign ships would never be altogether excluded especially those of Nations in treaty with us. On the question to postpone in order to take up M^r Pinkney's motion N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. The Report of the Committee for striking out Sect. 6. requiring two thirds of each House to pass a navigation act was then agreed to, nem: con: M^r Butler moved to insert after Art: XV. "If any person bound to service or labor in any of the U. States shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor," which was agreed to nem: con: Art: XVII being taken up, M^r Gov^r Morris moved to strike out the two last sentences, to wit "If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt which shall be then subsisting."--He did not wish to bind down the Legislature to admit Western States on the terms here stated. M^r Madison opposed the motion, insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States. Col: Mason. If it were possible by just means to prevent emigrations to the Western Country, it might be good policy. But go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies. M^r Gov^r Morris did not mean to discourage the growth of the Western Country. He knew that to be impossible. He did not wish however to throw the power into their hands. M^r Sherman, was ag^{st} the motion & for fixing an equality of privileges by the Constitution. M^r Langdon was in favor of the motion, he did not know but circumstances might arise which would render it inconvenient to admit new States on terms of equality. M^r Williamson was for leaving the Legislature free. The existing _small_ States enjoy an equality now, and for _that_ reason are admitted to it in the Senate. This reason is not applicable to new Western States. On M^r Gov^r Morris's motion for striking out. N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. M^r L. Martin & M^r Gov^r Morris moved to strike out of art XVII, "but to such admission the consent of two thirds of the members present shall be necessary." Before any question was taken on this motion, M^r Gov^r Morris moved the following proposition as a substitute for the XVII Art: "New States may be admitted by the Legislature into this Union; but no new State shall be erected within the limits of any of the present States, without the consent of the Legislature of such State, as well as of the Gen^l Legislature." The first part to Union inclusive was agreed to nem: con: M^r L. Martin opposed the latter part. Nothing he said would so alarm the limited States as to make the consent of the large States claiming the Western lands, necessary to the establishment of new States within their limits. It is proposed to guarantee the States. Shall Vermont be reduced by force in favor of the States claiming it? Frankland & the Western county of Virginia were in a like situation. On M^r Gov^r Morris's motion to substitute &c. it was agreed to. N. H. no. Mass. ay. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Art: XVII--before the House, as amended. M^r Sherman was against it. He thought it unnecessary. The Union cannot dismember a State without its consent. M^r Langdon thought there was great weight in the argument of M^r Luther Martin, and that the proposition substituted by M^r Gov^r Morris would excite a dangerous opposition to the plan. M^r Gov^r Morris thought on the contrary that the small States would be pleased with the regulation, as it holds up the idea of dismembering the large States. M^r Butler. If new States were to be erected without the consent of the dismembered States, nothing but confusion would ensue. Whenever taxes should press on the people, demagogues would set up their schemes of new States. Doc^r Johnson agreed in general with the ideas of M^r Sherman, but was afraid that as the clause stood, Vermont would be subjected to N. York, contrary to the faith pledged by Congress. He was of opinion that Vermont ought to be compelled to come into the Union. M^r Langdon said his objections were connected with the case of Vermont. If they are not taken in, & remain exempt from taxes, it would prove of great injury to N. Hampshire and the other neighbouring States. M^r Dickinson hoped the article would not be agreed to. He dwelt on the impropriety of requiring the small States to secure the large ones in their extensive claims of territory. M^r Wilson. When the _majority_ of a State wish to divide they can do so. The aim of those in opposition to the article, he perceived was that the Gen^l Government should abet the _minority_, & by that means divide a State against its own consent. M^r Gov^r Morris. If the forced division of the States is the object of the new system, and is to be pointed ag^{st} one or two States, he expected the Gentlemen from these would pretty quickly leave us. Adjourned. THURSDAY AUGUST 30TH 1787. IN CONVENTION Art XVII resumed for a question on it as amended by M^r Gov^r Morris's substitutes. M^r Carrol moved to strike out so much of the article as requires the consent of the State to its being divided. He was aware that the object of this prerequisite might be to prevent domestic disturbances; but such was our situation with regard to the Crown lands, and the sentiments of Maryland on that subject, that he perceived we should again be at sea, if no guard was provided for the right of the U. States to the back lands. He suggested that it might be proper to provide that nothing in the Constitution should affect the Right of the U. S. to lands ceded by G. Britain in the Treaty of peace, and proposed a committment to a member from each State. He assured the House that this was a point of a most serious nature. It was desirable above all things that the act of the Convention might be agreed to unanimously. But should this point be disregarded, he believed that all risks would be run by a considerable minority, sooner than give their concurrence. M^r L. Martin 2^{ded} the motion for a commitment. M^r Rutlidge. Is it to be supposed that the States are to be cut up without their own consent. The case of Vermont will probably be particularly provided for. There could be no room to fear, that Virginia or N. Carolina would call on the U. States to maintain their Government over the Mountains. M^r Williamson said that N. Carolina was well disposed to give up her western lands, but attempts at compulsion was not the policy of the U. S. He was for doing nothing in the constitution in the present case, and for leaving the whole matter in Statu quo. M^r Wilson was against the commitment. Unanimity was of great importance, but not to be purchased by the majority's yielding to the minority. He should have no objection to leaving the case of the new States as heretofore. He knew nothing that would give greater or juster alarm than the doctrine, that a political society is to be torn assunder without its own consent. On M^r Carrol's motion for commitment N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. M^r Sherman moved to postpone the substitute for Art: XVII agreed to yesterday in order to take up the following amendment The Legislature shall have power to admit other States into the Union, and new States to be formed by the division or junction of States now in the Union, with the consent of the Legislature of such States." (The first part was meant for the case of Vermont to secure its admission.) On the question, it passed in the negative. N. H. ay. Mas. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. no. Doc^r Johnson moved to insert the words "hereafter formed or" after the words "shall be" in the substitute for Art: XVII (the more clearly to save Vermont as being already formed into a State, from a dependence on the consent of N. York for her admission.) The motion was agreed to Del. & M^d only dissenting. M^r Gov^r Morris moved to strike out the word "limits" in the substitute, and insert the word "jurisdiction". (This also was meant to guard the case of Vermont, the jurisdiction of N. York not extending over Vermont which was in the exercise of sovereignty, tho' Vermont was within the asserted limits of New York.) On this question N. H. ay. Mas. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. M^r L. Martin urged the unreasonableness of forcing & guaranteeing the people of Virginia beyond the Mountains, the Western people of N. Carolina & of Georgia, & the people of Maine, to continue under the States now governing them, without the consent of those States to their separation. Even if they should become the _majority_, the majority of _Counties_, as in Virginia may still hold fast the dominion over them. Again the majority may place the seat of Government entirely among themselves & for their own conveniency, and still keep the injured parts of the States in subjection, under the guarantee of the Gen^l Government ag^{st} domestic violence. He wished M^r Wilson had thought a little sooner of the value of _political_ bodies. In the beginning, when the rights of the small States were in question, they were phantoms, ideal beings. Now when the Great States were to be affected, political societies were of a sacred nature. He repeated and enlarged on the unreasonableness of requiring the small States to guarantee the Western claims of the large ones.--It was said yesterday by M^r Gov^r Morris, that if the large States were to be split to pieces without their consent, their representatives here would take their leave. If the Small States are to be required to guarantee them in this manner, it will be found that the Representatives of other States will with equal firmness take their leave of the Constitution on the table. It was moved by M^r L. Martin to postpone the substituted article, in order to take up the following. "The Legislature of the U. S. shall have power to erect New States within as well as without the territory claimed by the several States or either of them, and admit the same into the Union: provided that nothing in this Constitution shall be construed to affect the claim of the U. S. to vacant lands ceded to them by the late treaty of peace, which passed in the negative: N. J. Del. & M^d only ay. On the question to agree to M^r Gov^r Morris's substituted article as amended in the words following. "New States may be admitted by the Legislature into the Union: but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States without the consent of the Legislature of such State as well as of the General Legislature" N. H. ay. Mas. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Dickinson moved to add the following clause to the last-- "Nor shall any State be formed by the junction of two or more States or parts thereof, without the consent of the Legislature of such States, as well as of the Legislature of the U. States," which was agreed to without a count of the votes. M^r Carrol moved to add--"Provided nevertheless that nothing in this Constitution shall be construed to affect the claim of the U. S. to vacant lands ceded to them by the Treaty of peace." This he said might be understood as relating to lands not claimed by any particular States, but he had in view also some of the claims of particular States. M^r Wilson was ag^{st} the motion. There was nothing in the Constitution affecting one way or the other the claims of the U. S. & it was best to insert nothing, leaving every thing on that litigated subject in statu quo. M^r Madison considered the claim of the U. S. as in fact favored by the jurisdiction of the Judicial power of the U. S. over controversies to which they should be parties. He thought it best on the whole to be silent on the subject. He did not view the proviso of Mr. Carrol as dangerous; but to make it neutral & fair, it ought to go further & declare that the claims of particular States also should not be affected. M^r Sherman thought the proviso harmless, especially with the addition suggested by M^r Madison in favor of the claims of particular States. M^r Baldwin did not wish any undue advantage to be given to Georgia. He thought the proviso proper with the addition proposed. It should be remembered that if Georgia has gained much by the cession in the Treaty of peace, she was in danger during the war of a Uti possidetis. M^r Rutlidge thought it wrong to insert a proviso where there was nothing which it could restrain, or on which it could operate. M^r Carrol withdrew his motion and moved the following. "Nothing in this Constitution shall be construed to alter the claims of the U. S. or of the individual States to the Western territory, but all such claims shall be examined into & decided upon, by the Supreme Court of the U. States." M^r Gov^r Morris moved to postpone this in order to take up the following. "The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U. States; and nothing in this constitution contained, shall be so construed as to prejudice any claims either of the U. S. or of any particular State."--The postponem^t ag^d to nem. con. M^r L. Martin moved to amend the proposition of M^r Gov^r Morris by adding--"But all such claims may be examined into & decided upon by the supreme Court of the U. States." M^r Gov^r Morris. this is unnecessary, as all suits to which the U. S. are parties, are already to be decided by the Supreme Court. M^r L. Martin. it is proper in order to remove all doubts on this point. Question on M^r L. Martin's amendatory motion N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a no.--States not farther called the negatives being sufficient & the point given up. The Motion of M^r Gov^r Morris was then agreed to, M^d alone dissenting. Art: XVIII being taken up,--the word "foreign" was struck out nem: con: as superfluous, being implied in the term "invasion." M^r Dickinson moved to strike out "on the application of its Legislature, against." He thought it of essential importance to the tranquility of the U. S. that they should in all cases suppress domestic violence, which may proceed from the State Legislature itself, or from disputes between the two branches where such exist. M^r Dayton mentioned the Conduct of Rho: Island as shewing the necessity of giving latitude to the power of the U. S. on this subject. On the question N. H. no. Mas. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no. On a question for striking out "domestic violence" and insert^g "insurrections--" It passed in the negative. N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Dickinson moved to insert the words, "or Executive" after the words "application of its Legislature."--The occasion itself he remarked might hinder the Legislature from meeting. On this question N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay. M^r L. Martin moved to subjoin to the last amendment the words "in the recess of the Legislature." On which question N. H. no. Mas. no. C^t no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. On Question on the last clause as amended N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Art: XIX taken up. M^r Gov^r Morris suggested that the Legislature should be left at liberty to call a Convention, whenever they please. The Art: was agreed to nem: con: Art: XX. taken up.--"or affirmation" was added after "oath." M^r Pinkney moved to add to the Art:--"but no religious test shall ever be required as a qualification to any office or public trust under the authority of the U. States." M^r Sherman thought it unnecessary, the prevailing liberality being a sufficient security ag^{st} such tests. M^r Gov^r Morris & Gen^l Pinkney approved the motion. The motion was agreed to nem: con: and then the whole Article; N. C. only no--and M^d divided. Art: XXI. taken up, viz: "The ratifications of the Conventions of ---- States shall be sufficient for organizing this Constitution." M^r Wilson proposed to fill the blank with "seven" that being a majority of the whole number & sufficient for the commencement of the plan. M^r Carrol moved to postpone the article in order to take up the Report of the Committee of Eleven (see Tuesday Aug^{st} 28)--and on the question N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. M^r Gov^r Morris thought the blank ought to be filled in a twofold way, so as to provide for the event of the ratifying States being contiguous which would render a smaller number sufficient, and the event of their being dispersed, which w^d require a greater number for the introduction of the Government. M^r Sherman observed that the States being now confederated by articles which require unanimity in changes, he thought the ratification in this case of ten States at least ought to be made necessary. M^r Randolph was for filling the blank with "nine" that being a respectable majority of the whole, and being a number made familiar by the constitution of the existing Congress. M^r Wilson mentioned "eight" as preferable. M^r Dickinson asked whether the concurrence of Congress is to be essential to the establishment of the system, whether the refusing States in the Confederacy could be deserted--and whether Congress could concur in contravening the system under which they acted? M^r Madison, remarked that if the blank should be filled with "seven" "eight," or "nine," the Constitution as it stands might be put in force over the whole body of the people, tho' less than a majority of them should ratify it. M^r Wilson. As the Constitution stands, the States only which ratify can be bound. We must he said in this case go to the original powers of Society. The House on fire must be extinguished, without a scrupulous regard to ordinary rights. M^r Butler was in favor of "nine." He revolted at the idea, that one or two States should restrain the rest from consulting their safety. M^r Carrol moved to fill the blank with "the thirteen," unanimity being necessary to dissolve the existing confederacy which had been unanimously established. M^r King thought this amend^t necessary, otherwise as the Constitution now stands it will operate on the whole though ratified by a part only. Adjourned. FRIDAY AUGUST 31^{ST} 1787. IN CONVENTION. M^r King moved to add to the end of Art: XXI the words "between the said States" so as to confine the operation of the Gov^t to the States ratifying it. On the question N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. M^d no. Virg^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Madison proposed to fill the blank in the article with "any seven or more States entitled to thirty three members at least in the House of Representatives according to the allotment made in the 3 Sect: of Art: 4." This he said would require the concurrence of a majority of both the States and the people. M^r Sherman doubted the propriety of authorizing less than all the States to execute the Constitution, considering the nature of the existing Confederation. Perhaps all the States may concur, and on that supposition it is needless to hold out a breach of faith. M^r Clymer and M^r Carrol moved to postpone the consideration of Art: XXI in order to take up the Reports of Committees not yet acted on. On this question, the States were equally divided. N. H. ay. Mas. no. C^t div^d. N. J. no. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. G. ay. M^r Gov^r Morris moved to strike out "Conventions of the" after "ratifications" leaving the States to pursue their own modes of ratification. M^r Carrol mentioned the mode of altering the Constitution of Maryland pointed out therein, and that no other mode could be pursued in that State. M^r King thought that striking out "Conventions," as the requisite mode was equivalent to giving up the business altogether. Conventions alone, which will avoid all the obstacles from the complicated formation of the Legislatures, will succeed, and if not positively required by the plan its enemies will oppose that mode. M^r Gov^r Morris said he meant to facilitate the adoption of the plan, by leaving the modes approved by the several State Constitutions to be followed. M^r Madison considered it best to require Conventions; Among other reasons, for this, that the powers given to the Gen^l Gov^t being taken from the State Gov^{ts} the Legislatures would be more disinclined than conventions composed in part at least of other men; and if disinclined, they could devise modes apparently promoting, but really thwarting the ratification. The difficulty in Maryland was no greater than in other States, where no mode of change was pointed out by the Constitution, and all officers were under oath to support it. The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the Bills of rights, that first principles might be resorted to. M^r M^cHenry said that the officers of Gov^t in Maryland were under oath to support the mode of alteration prescribed by the Constitution. M^r Ghorum urged the expediency of "Conventions" also M^r Pinkney, for reasons formerly urged on a discussion of this question. M^r L. Martin insisted on a reference to the State Legislatures. He urged the danger of commotions from a resort to the people & to first principles, in which the Governments might be on one side and the people on the other. He was apprehensive of no such consequences however in Maryland, whether the Legislature or the people should be appealed to. Both of them would be generally against the Constitution. He repeated also the peculiarity in the Maryland Constitution. M^r King observed that the Constitution of Massachusetts was made unalterable till the year 1790, yet this was no difficulty with him. The State must have contemplated a recurrence to first principles before they sent deputies to this Convention. M^r Sherman moved to postpone art. XXI. & to take up art: XXII on which question, N. H. no. Mas. no. C^t ay. N. J. no. P. ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. On M^r Gov^r Morris's motion to strike out "Conventions of the," it was negatived. N. H. no. Mas. no. C^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a no. S. C. no. Geo. ay. On filling the blank in Art: XXI with "thirteen" moved by Mr. Carrol & Martin, N. H. no. Mas. no. C^t no, all except Maryland. M^r Sherman & M^r Dayton moved to fill the blank with "ten." M^r Wilson supported the motion of M^r Madison, requiring a majority both of the people and of States. M^r Clymer was also in favor of it. Col: Mason was for preserving ideas familiar to the people. Nine States had been required in all great cases under the Confederation & that number was on that account preferable. On the question for "ten" N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay. On question for "nine" N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay. Art: XXI. as amended was then agreed to by all the States, Maryland excepted, & M^r Jenifer being ay. Art. XXII taken up, to wit, "This Constitution shall be laid before the U. S. in Cong^s assembled for their approbation; and it is the opinion of this Convention that it should be afterwards submitted to a Convention chosen, in each State under the recommendation of its Legislature, in order to receive the ratification of such Convention." M^r Gov^r Morris & M^r Pinkney moved to strike out the words "for their approbation." On this question N. H. ay. Mas. no. C^t ay. N. J. ay.[47] P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no. [47] In the printed Journal N. Jersey--no.--Madison's Note. M^r Gov^r Morris & M^r Pinkney then moved to amend the art: so as to read "This Constitution shall be laid before the U. S. in Congress assembled; and it is the opinion of this Convention that it should afterwards be submitted to a Convention chosen in each State, in order to receive the ratification of such Convention; to which end the several Legislatures ought to provide for the calling Conventions within their respective States as speedily as circumstances will permit." M^r Gov^r Morris said his object was to impress in stronger terms the necessity of calling Conventions in order to prevent enemies to the plan, from giving it the go by. When it first appears, with the sanction of this Convention, the people will be favorable to it. By degrees the State officers, & those interested in the State Gov^{ts} will intrigue & turn the popular current against it. M^r L. Martin believed M^r Morris to be right, that after a while the people would be ag^{st} it, but for a different reason from that alledged. He believed they would not ratify it unless hurried into it by surprize. M^r Gerry enlarged on the idea of M^r L. Martin in which he concurred, represented the system as full of vices, and dwelt on the impropriety of destroying the existing Confederation, without the unanimous consent of the parties to it. Question on M^r Gov^r Morris's & M^r Pinkney's motion N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Gerry moved to postpone art: XXII. Col: Mason 2^{ded} the motion, declaring that he would sooner chop off his right hand than put it to the Constitution as it now stands. He wished to see some points not yet decided brought to a decision, before being compelled to give a final opinion on this article. Should these points be improperly settled, his wish would then be to bring the whole subject before another general Convention. M^r Gov^r Morris was ready for a postponement. He had long wished for another Convention, that will have the firmness to provide a vigorous Government, which we are afraid to do. M^r Randolph stated his idea to be, in case the final form of the Constitution should not permit him to accede to it, that the State Conventions should be at liberty to propose amendments to be submitted to another General Convention which may reject or incorporate them, as may be judged proper. On the question for postponing N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a no. N. C. ay. S. C. no. Geo. no. On the question on Art: XXII N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Art: XXIII being taken up, as far as the words "assigned by Congress" inclusive, was agreed to nem: con: the blank having been first filled with the word "nine" as of course. On a motion for postponing the residue of the clause, concerning the choice of the President &c. N. H. no. Mas. ay. C^t no. N. J. no. P^a no. Del. ay. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. M^r Gov^r Morris then moved to strike out the words "choose the President of the U. S. and"--this point, of choosing the President not being yet finally determined, & on this question N. H. no. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay.[48] Geo. ay. [48] In printed Journal--S. C.--no.--Madison's Note. Art: XXIII as amended was then agreed to nem: con: The Report of the Grand Committee of eleven made by M^r Sherman was then taken up (see Aug: 28). On the question to agree to the following clause, to be inserted after sect. 4. art: VII. "nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another." Agreed to nem: con: On the clause "or oblige vessels bound to or from any State to enter clear or pay duties in another" M^r Madison thought the restriction w^d be inconvenient, as in the River Delaware, if a vessel cannot be required to make entry below the jurisdiction of Pennsylvania. M^r Fitzimmons admitted that it might be inconvenient, but thought it would be a greater inconvenience to require vessels bound to Philad^a to enter below the jurisdiction of the State. M^r Ghorum & M^r Langdon, contended that the Gov^t would be so fettered by this clause, as to defeat the good purpose of the plan. They mentioned the situation of the trade of Mas. & N. Hampshire, the case of Sandy Hook which is in the State of N. Jersey, but where precautions ag^{st} smuggling into N. York, ought to be established by the Gen^l Government. M^r M^cHenry said the clause would not screen a vessel from being obliged to take an officer on board as a security for due entry &c. M^r Carrol was anxious that the clause should be agreed to. He assured the House, that this was a tender point in Maryland. M^r Jennifer urged the necessity of the clause in the same point of view. On the question for agreeing to it N. H. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. The word "tonnage" was struck out, nem: con: as comprehended in "duties." On question On the clause of the Report "and all duties, imposts & excises, laid by the Legislature shall be uniform throughout the U. S." It was agreed to nem: con:[49] [49] In printed Journal N. H. and S. C. entered as in the negative.--Madison's Note. On motion of M^r Sherman it was agreed to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State; the Committee appointed by ballot, being, M^r Gilman, M^r King, M^r Sherman, M^r Brearly, M^r Gov^r Morris, M^r Dickinson, M^r Carrol, M^r Madison, M^r Williamson, M^r Butler, & M^r Baldwin. The House adjourned. SATURDAY SEP^R 1. 1787 IN CONVENTION. M^r Brearley from the Comm^e of eleven to which were referred yesterday the postponed part of the Constitution, & parts of Reports not acted upon, made the following partial report. That in lieu of the 9^{th} Sect: of Art: 6. the words following be inserted viz "The members of each House shall be ineligible to any Civil office under the authority of the U. S. during the time for which they shall respectively be elected, and no person holding an office under the U. S. shall be a member of either House during his continuance in office." M^r Rutlidge from the Committee to whom were referred sundry propositions (see Aug: 29), together with art: XVI reported that the following additions be made to the Report--viz. After the word "States" in the last line on the Margin of the 3^d page (see the printed Report),--add "to establish uniform laws on the subject of Bankruptcies." And insert the following as Art: XVI viz "Full faith and credit ought to be given in each State to the public acts, records, and Judicial proceedings of every other State, and the Legislature shall, by general laws prescribe the manner in which such acts, Records, & proceedings shall be proved, and the effect which Judgments obtained in one State, shall have in another." After receiving these reports The House adjourned to 10OC on Monday next. MONDAY SEP^R 3 1787. IN CONVENTION M^r Gov^r Morris moved to amend the Report concerning the respect to be paid to Acts Records &c. of one State, in other States (see Sep^r 1.) by striking out "judgments obtained in one State shall have in another" and to insert the word "thereof" after the word "effect." Col: Mason favored the motion, particularly if the "effect" was to be restrained to judgments & Judicial proceedings. M^r Wilson remarked, that if the Legislature were not allowed to _declare the effect_ the provision would amount to nothing more than what now takes place among all Independent Nations. Doc^r Johnson thought the amendment as worded would authorize the Gen^l Legislature to declare the effect of Legislative acts of one State in another State. M^r Randolph considered it as strengthening the general objection ag^{st} the plan, that its definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going farther than the Report, which enables the Legislature to provide for the effect of _Judgments_. On the amendment, as moved by M^r Gov^r Morris Mas. ay. C^t ay. N. J. ay. P^a ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no. On motion of M^r Madison, "ought to" were struck out, and "shall" inserted; and "shall" between "Legislature" & "by general laws" struck out, and "may" inserted, nem: con: On the question to agree to the report as amended viz "Full faith & credit shall be given in each State to the public acts, records & judicial proceedings of every other State, and the Legislature may by general laws prescribe the manner in which such acts records & proceedings shall be proved, and the effect thereof." Agreed to with^t a count of Sts. The clause in the Report "To establish uniform laws on the subject of Bankruptcies" being taken up. M^r Sherman observed that Bankruptcies were in some cases punishable with death by the laws of England, & He did not chuse to grant a power by which that might be done here. M^r Gov^r Morris said this was an extensive & delicate subject. He would agree to it because he saw no danger of abuse of the power by the Legislature of the U. S. On the question to agree to the clause N. H. ay. Mas. ay. C^t no. N. J. ay. P^a ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Pinkney moved to postpone the Report of the Committee of Eleven (see Sep^r 1.) in order to take up the following, "The members of each House shall be incapable of holding any office under the U. S. for which they or any other for their benefit, receive any salary, fees or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively." He was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility. He considered the eligibility of members of the Legislature to the honourable offices of Government, as resembling the policy of the Romans, in making the temple of virtue the road to the temple of fame. On this question N. H. no. Mas. no. C^t no. N. J. no. P^a ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no. M^r King moved to insert the word "created" before the word "during" in the Report of the Committee. This he said would exclude the members of the first Legislature under the Constitution, as most of the offices w^d then be created. M^r Williamson 2^{ded} the motion. He did not see why members of the Legislature should be ineligible to _vacancies_ happening during the term of their election. M^r Sherman was for entirely incapacitating members of the Legislature. He thought their eligibility to offices would give too much influence to the Executive. He said the incapacity ought at least to be extended to cases where salaries should be _increased_, as well as _created_, during the term of the member. He mentioned also the expedient by which the restriction could be evaded to wit: an existing officer might be translated to an office created, and a member of the Legislature be then put into the office vacated. M^r Gov^r Morris contended that the eligibility of members to office w^d lessen the influence of the Executive. If they cannot be appointed themselves, the Executive will appoint their relations & friends, retaining the service & votes of the members for his purposes in the Legislature. Whereas the appointment of the members deprives him of such an advantage. M^r Gerry, thought the eligibility of members would have the effect of opening batteries ag^{st} good officers, in order to drive them out & make way for members of the Legislature. M^r Gorham was in favor of the amendment. Without it we go further than has been done in any of the States, or indeed any other Country. The experience of the State Governments where there was no such ineligibility, proved that it was not necessary; on the contrary that the eligibility was among the inducements for fit men to enter into the Legislative service. M^r Randolph was inflexibly fixed against inviting men into the Legislature by the prospect of being appointed to offices. M^r Baldwin remarked that the example of the States was not applicable. The Legislatures there are so numerous that an exclusion of their members would not leave proper men for offices. The case would be otherwise in the General Government. Col: Mason. Instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters. M^r Wilson considered the exclusion of members of the Legislature as increasing the influence of the Executive as observed by M^r Gov^r Morris at the same time that it would diminish, the general energy of the Government. He said that the legal disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction. M^r Pinkney. The first Legislature will be composed of the ablest men to be found. The States will select such to put the Government into operation. Should the Report of the Committee or even the amendment be agreed to, The great offices, even those of the Judiciary Department which are to continue for life, must be filled while those most capable of filling them will be under a disqualification. On the question on M^r King's motion N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. The amendment being thus lost by the equal division of the States, M^r Williamson moved to insert the words "created or the emoluments whereof shall have been increased" before the word "during" in the Report of the Committee. M^r King 2^{ded} the motion, & on the question N. H. ay. Mas. ay. C^t no. N. J. no. Pa. ay. M^d no. V^a ay. N. C. ay. S. C. no. Geo. divided. The last clause rendering a Seat in the Legislature & an office incompatible was agreed to nem. con: The Report as amended & agreed to is as follows. "The members of each House shall be ineligible to any Civil office under the authority of the U. States, created, or the emoluments whereof shall have been increased during the time for which they shall respectively be elected--And no person holding any office under the U. S. shall be a member of either House during his continuance in office." Adjourned. TUESDAY SEP^R 4. 1787. IN CONVENTION M^r Brearly from the Committee of Eleven made a further partial Report as follows "The Committee of Eleven to whom sundry resolutions &c. were referred on the 31^{st} of August, report that in their opinion the following additions and alterations should be made to the Report before the Convention, viz.[50] [50] This is an exact copy. The variations in that in the printed Journal are occasioned by its incorporation of subsequent amendments. This remark is applicable to other cases.--Madison's Note. The report was copied by the Secretary of the Convention, William Jackson, into the Journal, after it had been read. Afterwards two sentences were altered by interlining with lead pencil. The alterations (indicated by italics) are as follows: Paragraph 4, "The person having the greatest number of votes ... if such number be a majority of _the whole number_ of the electors _appointed_." Paragraph 7, "But no treaty, _except treaties of peace_, shall be made," etc. The changes in paragraph 4 are unimportant: the change in paragraph 7 was an amendment offered by Madison September 7th, and adopted.--Const. MSS.--_Journal of Federal Convention_, p. 323, _et seq._ (1.) The first clause of sect: 1. art. 7. to read as follows--'The Legislature shall have power to lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare of the U. S.' (2.) At the end of the 2^d clause of sect. 1. art. 7. add 'and with the Indian tribes.' (3.) In the place of the 9^{th} art. Sect. 1. to be inserted 'The Senate of the U. S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present.' (4.) After the word 'Excellency' in sect. 1. art. 10. to be inserted. 'He shall hold his office during the term of four years, and together with the Vice-President, chosen for the same term, be elected in the following manner, viz. Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature. The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the Seat of the Gen^l Government, directed to the President of the Senate--The President of the Senate shall in that House open all the certificates, and the votes shall be then & there counted. The Person having the greatest number of votes shall be the President, if such number be a majority of that of the electors; and if there be more than one who have such a majority, and have an equal number of votes, then the Senate shall immediately choose by ballot one of them for President: but if no person have a majority, then from the five highest on the list, the Senate shall choose by ballot the President, and in every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the Vice-President. The Legislature may determine the time of choosing and assembling the Electors, and the manner of certifying and transmitting their votes.' (5) 'Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.' (6) 'Sect. 3. The vice-president shall be ex officio President of the Senate, except when they sit to try the impeachment of the President, in which case the Chief Justice shall preside, and excepting also when he shall exercise the powers and duties of President, in which case & in case of his absence, the Senate shall chuse a President pro tempore--The vice President when acting as President of the Senate shall not have a vote unless the House be equally divided.' (7) 'Sect. 4. The President by and with the advice and Consent of the Senate, shall have power to make Treaties; and he shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public ministers, Judges of the Supreme Court, and all other Officers of the U.S. whose appointments are not otherwise herein provided for. But no Treaty shall be made without the consent of two thirds of the members present.' (8) After the words--'into the service of the U. S.' in sect. 2. art: 10. add 'and may require the opinion in writing of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices.' The latter part of Sect. 2. art: 10. to read as follows. (9) 'He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery, and in case of his removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed.'" The (1^{st}) clause of the Report was agreed to, nem. con. The (2) clause was also agreed to nem: con: The (3) clause was postponed in order to decide previously on the mode of electing the President. The (4) clause was accordingly taken up. M^r Gorham disapproved of making the next highest after the President, the vice-President, without referring the decision to the Senate in case the next highest should have less than a majority of votes. As the regulation stands a very obscure man with very few votes may arrive at that appointment. M^r Sherman said the object of this clause of the report of the Committee was to get rid of the ineligibility, which was attached to the mode of election by the Legislature, & to render the Executive independent of the Legislature. As the choice of the President was to be made out of the five highest, obscure characters were sufficiently guarded against in that case; and he had no objection to requiring the vice-President to be chosen in like manner, where the choice was not decided by a majority in the first instance. M^r Madison was apprehensive that by requiring both the President & vice President to be chosen out of the five highest candidates, the attention of the electors would be turned too much to making candidates instead of giving their votes in order to a definitive choice. Should this turn be given to the business, The election would, in fact be consigned to the Senate altogether. It would have the effect at the same time, he observed, of giving the nomination of the candidates to the largest States. M^r Gov^r Morris concurred in, & enforced the remarks of M^r Madison. M^r Randolph & M^r Pinkney wished for a particular explanation & discussion of the reasons for changing the mode of electing the Executive. M^r Gov^r Morris said he would give the reasons of the Committee and his own. The 1^{st} was the danger of intrigue & faction if the appointm^t should be made by the Legislature. 2. The inconveniency of an ineligibility required by that mode in order to lessen its evils. 3. The difficulty of establishing a Court of Impeachments, other than the Senate which would not be so proper for the trial nor the other branch for the impeachment of the President, if appointed by the Legislature. 4. Nobody had appeared to be satisfied with an appointment by the Legislature. 5. Many were anxious even for an immediate choice by the people. 6. The indispensable necessity of making the Executive independent of the Legislature.--As the Electors would vote at the same time throughout the U. S. and at so great a distance from each other, the great evil of cabal was avoided. It would be impossible also to corrupt them. A conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of the impeachment. Col: Mason confessed that the plan of the Committee had removed some capital objections, particularly the danger of cabal and corruption. It was liable however to this strong objection, that nineteen times in twenty the President would be chosen by the Senate, an improper body for the purpose. M^r Butler thought the mode not free from objections, but much more so than an election by the Legislature, where as in elective monarchies, cabal faction & violence would be sure to prevail. M^r Pinkney stated as objections to the mode 1. that it threw the whole appointment in fact into the hands of the Senate. 2. The Electors will be strangers to the several candidates and of course unable to decide on their comparative merits. 3. It makes the Executive reeligible which will endanger the public liberty. 4. It makes the same body of men which will in fact elect the President his Judges in case of an impeachment. M^r Williamson had great doubts whether the advantage of reeligibility would balance the objection to such a dependence of the President on the Senate for his reappointment. He thought at least the Senate ought to be restrained to the _two_ highest on the list. M^r Gov^r Morris said the principal advantage aimed at was that of taking away the opportunity for cabal. The President may be made if thought necessary ineligible on this as well as on any other mode of election. Other inconveniences may be no less redressed on this plan than any other. M^r Baldwin thought the plan not so objectionable when well considered, as at first view: The increasing intercourse among the people of the States, would render important characters less & less unknown; and the Senate would consequently be less & less likely to have the eventual appointment thrown into their hands. M^r Wilson. This subject has greatly divided the House, and will also divide the people out of doors. It is in truth the most difficult of all on which we have had to decide. He had never made up an opinion on it entirely to his own satisfaction. He thought the plan on the whole a valuable improvement on the former. It gets rid of one great evil, that of cabal & corruption; & Continental Characters will multiply as we more & more coalesce, so as to enable the electors in every part of the Union to know & judge of them. It clears the way also for a discussion of the question of re-eligibility on its own merits which the former mode of election seemed to forbid. He thought it might be better however to refer the eventual appointment to the Legislature than to the Senate, and to confine it to a smaller number than five of the Candidates. The eventual election by the Legislature w^d not open cabal anew, as it would be restrained to certain designated objects of choice, and as these must have had the previous sanction of a number of the States; and if the election be made as it ought as soon as the votes of the Electors are opened & it is known that no one has a majority of the whole there can be little danger of corruption. Another reason for preferring the Legislature to the Senate in this business was that the House of Rep^s will be so often changed as to be free from the influence & faction to which the permanence of the Senate may subject that branch. M^r Randolph preferred the former mode of constituting the Executive, but if the change was to be made, he wished to know why the eventual election was referred to the _Senate_ and not to the _Legislature_? He saw no necessity for this and many objections to it. He was apprehensive also that the advantage of the eventual appointment would fall into the hands of the States near the seat of Government. M^r Gov^r Morris said the _Senate_ was preferred because fewer could then say to the President, you owe your appointment to us. He thought the President would not depend so much on the Senate for his reappointment as on his general good conduct. The further consideration of the Report was postponed that each member might take a copy of the remainder of it. The following motion was referred to the Committee of Eleven--to wit,--"To prepare & report a plan for defraying the expences of the Convention." [51]M^r Pinkney moved a clause declaring "that each House should be judge of the privilege of its own members." M^r Gov^r Morris 2^{ded} the motion. [51] This motion not contained in the printed Journal--Madison's Note. M^r Randolph & M^r Madison expressed doubts as to the propriety of giving such a power, & wished for a postponement. M^r Gov^r Morris thought it so plain a case that no postponement could be necessary. M^r Wilson thought the power involved, and the express insertion of it needless. It might beget doubts as to the power of other public bodies, as Courts &c. Every Court is the judge of its own privileges. M^r Madison distinguished between the power of Judging of privileges previously & duly established, and the effect of the motion which would give a discretion to each House as to the extent of its own privileges. He suggested that it would be better to make provision for ascertaining by _law_, the privileges of each House, than to allow each House to decide for itself. He suggested also the necessity of considering what privileges ought to be allowed to the Executive. Adjourned. WEDNESDAY SEP^R 5. 1787. IN CONVENTION. M^r Brearley from the Committee of Eleven made a farther report as follows, (1) To add to the clause "to declare war" the words "and grant letters of marque and reprisal." (2) To add to the clause "to raise and support armies" the words "but no appropriation of money to that use shall be for a longer term than two years." (3) Instead of sect: 12. art 6. say--"All bills for raising revenue shall originate in the House of Representatives, and shall be subject to alterations and amendments by the Senate: no money shall be drawn from the Treasury, but in consequence of appropriations made by law." (4) Immediately before the last clause of sect. 1. art. 7. insert "To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by Cession of particular States and the acceptance of the Legislature become the Seat of the Government of the U. S. and to exercise like authority over all places purchased for the erection of Forts, Magazines, Arsenals, Dock Yards, and other needful buildings." (5) "To promote the progress of Science and useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries." This report being taken up,--The (1) clause was agreed to nem: con: To the (2) clause M^r Gerry objected that it admitted of appropriations to an army, for two years instead of one, for which he could not conceive a reason, that it implied that there was to be a standing army which he inveighed against as dangerous to liberty, as unnecessary even for so great an extent of Country as this, and if necessary, some restriction on the number & duration ought to be provided: Nor was this a proper time for such an innovation. The people would not bear it. M^r Sherman remarked that the appropriations were permitted only, not required to be for two years. As the Legislature is to be biennially elected, it would be inconvenient to require appropriations to be for one year, as there might be no Session within the time necessary to renew them. He should himself he said like a reasonable restriction on the number and continuance of an army in time of peace. The (2) clause was then agreed to nem: con: The (3) clause, M^r Gov^r Morris moved to postpone. It had been agreed to in the Committee on the ground of compromise, and he should feel himself at liberty to dissent to it, if on the whole he should not be satisfied with certain other parts to be settled.--M^r Pinkney 2^{ded} the motion. M^r Sherman was for giving immediate ease to those who looked on this clause as of great moment, and for trusting to their concurrence in other proper measures. On the question for postponing N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay. So much of the (4) clause as related to the seat of Government was agreed to nem: con: On the residue to wit, "to exercise like authority over all places purchased for forts" &c. M^r Gerry contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Gen^l Government. M^r King thought himself the provision unnecessary, the power being already involved: but would move to insert after the word "purchased" the words "by the consent of the Legislature of the State." This would certainly make the power safe. M^r Gov^r Morris 2^{ded} the motion, which was agreed to nem: con: as was then the residue of the clause as amended. The (5) clause was agreed to nem: con: The following Resolution & order being reported from the Committee of eleven, to wit, "Resolved that the U. S. in Congress be requested to allow and cause to be paid to the Secretary and other officers of this Convention such sums in proportion to their respective times of service, as are allowed to the Secretary & similar officers of Congress." "Ordered that the Secretary make out & transmit to the Treasury office of the U. S. an account for the said services & for the incidental expences of this Convention." The resolution & order were separately agreed to nem: con: M^r Gerry gave notice that he should move to reconsider articles XIX. XX. XXI. XXII. M^r Williamson gave like notice as to the article fixing the number of Representatives, which he thought too small. He wished also to allow Rho: Island more than one, as due to her probable number of people, and as proper to stifle any pretext arising from her absence on the occasion. The Report made yesterday as to the appointment of the Executive being then taken up. M^r Pinkney renewed his opposition to the mode, arguing 1. that the electors will not have sufficient knowledge of the fittest men, & will be swayed by an attachment to the eminent men of their respective States. Hence 2^{dly} the dispersion of the votes would leave the appointment with the Senate, and as the President's reappointment will thus depend on the Senate he will be the mere creature of that body. 3. He will combine with the Senate ag^{st} the House of Representatives. 4. This change in the mode of election was meant to get rid of the ineligibility of the President a second time, whereby he will become fixed for life under the auspices of the Senate. M^r Gerry did not object to this plan of constituting the Executive in itself, but should be governed in his final vote by the powers that may be given to the President. M^r Rutlidge was much opposed to the plan reported by the Committee. It would throw the whole power into the Senate. He was also against a re-eligibility. He moved to postpone the Report under consideration & take up the original plan of appointment by the Legislature, to wit. "He shall be elected by joint ballot by the Legislature to which election a majority of the votes of the members present shall be required: He shall hold his office during the term of seven years; but shall not be elected a second time." On this motion to postpone N. H. div^d. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no. Col. Mason admitted that there were objections to an appointment by the Legislature as originally planned. He had not yet made up his mind, but would state his objections to the mode proposed by the Committee. 1. It puts the appointment in fact into the hands of the Senate; as it will rarely happen that a majority of the whole votes will fall on any one candidate: and as the existing President will always be one of the 5 highest, his reappointment will of course depend on the Senate. 2. Considering the powers of the President & those of the Senate, if a coalition should be established between these two branches, they will be able to subvert the Constitution--The great objection with him would be removed by depriving the Senate of the eventual election. He accordingly moved to strike out the words "if such number be a majority of that of the electors." M^r Williamson 2^{ded} the motion. He could not agree to the clause without some such modification. He preferred making the highest tho' not having a majority of the votes, President, to a reference of the matter to the Senate. Referring the appointment to the Senate lays a certain foundation for corruption & aristocracy. M^r Gov^r Morris thought the point of less consequence than it was supposed on both sides. It is probable that a majority of the votes will fall on the same man. As each Elector is to give two votes, more than 1/4 will give a majority. Besides as one vote is to be given to a man out of the State, and as this vote will not be thrown away, 1/2 the votes will fall on characters eminent & generally known. Again if the President shall have given satisfaction, the votes will turn on him of course, and a majority of them will reappoint him, without resort to the Senate: If he should be disliked, all disliking him, would take care to unite their votes so as to ensure his being supplanted. Col. Mason those who think there is no danger of there not being a majority for the same person in the first instance, ought to give up the point to those who think otherwise. M^r Sherman reminded the opponents of the new mode proposed that if the small States had the advantage in the Senate's deciding among the five highest candidates the large States would have in fact the nomination of these candidates. On the motion of Col: Mason N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d ay.[52] V^a no. N. C. ay. S. C. no. Geo. no. [52] In printed Journal Maryland--no--Madison's Note. M^r Wilson moved to strike out "Senate" and insert the word "Legislature." M^r Madison considered it as a primary object to render an eventual resort to any part of the Legislature improbable. He was apprehensive that the proposed alteration would turn the attention of the large States too much to the appointment of candidates, instead of aiming at an effectual appointment of the officer, as the large States would predominate in the Legislature which would have the final choice out of the candidates. Whereas if the Senate in which the small States predominate should have the final choice, the concerted effort of the large States would be to make the appointment in the first instance conclusive. M^r Randolph. We have in some revolutions of this plan made a bold stroke for Monarchy. We are now doing the same for an aristocracy. He dwelt on the tendency of such an influence in the Senate over the election of the President in addition to its other powers, to convert that body into a real & dangerous Aristocracy. M^r Dickinson was in favor of giving the eventual election to the Legislature, instead of the Senate. It was too much influence to be superadded to that body. On the question moved by M^r Wilson N. H. div^d. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. ay. Geo. no. M^r Madison & M^r Williamson moved to strike out the word "majority" and insert "one-third" so that the eventual power might not be exercised if less than a majority, but not less than 1/3 of the Electors should vote for the same person. M^r Gerry objected that this would put it in the power of three or four States to put in whom they pleased. M^r Williamson. There are seven States which do not contain one third of the people. If the Senate are to appoint, less than one sixth of the people will have the power. On the question N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. M^r Gerry suggested that the eventual election should be made by six Senators and seven Representatives chosen by joint ballot of both Houses. M^r King observed that the influence of the Small States in the Senate was somewhat balanced by the influence of the large States in bringing forward the candidates,[53] and also by the Concurrence of the small States in the Committee in the clause vesting the exclusive origination of Money bills in the House of Representatives. [53] This explains the compromise mentioned above by M^r Gov^r Morris. Col. Mason, M^r Gerry & other members from large States set great value on this privilege of originating money bills. Of this the members from the small States, with some from the large States who wished a high mounted Gov^t endeavored to avail themselves, by making that privilege, the price of arrangements in the constitution favorable to the small States, and to the elevation of the Government.--Madison's Note. Col: Mason moved to strike out the word "five" and insert the word "three" as the highest candidates for the Senate to choose out of. M^r Gerry 2^{ded} the motion. M^r Sherman would sooner give up the plan. He would prefer seven or thirteen. On the question moved by Col: Mason & M^r Gerry N. H. no. Mas. no. C^t no. N. J. no. P^a no. Delaware [and] M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. M^r Spaight and M^r Rutlidge moved to strike out "five" and insert "thirteen"--to which all the States disagreed--except N. C. & S. C. M^r Madison & M^r Williamson moved to insert after "Electors" the words "who shall have balloted" so that the non voting electors not being counted might not increase the number necessary as a majority of the whole to decide the choice without the agency of the Senate. On this question N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no. M^r Dickinson moved, in order to remove ambiguity from the intention of the clause as explained by the vote, to add, after the words "if such number be a majority of the whole number of the Electors" the word "appointed." On this motion N. H. ay. Mas. ay. Con. ay. N. J. ay. P^a ay. Delaware [and] M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay. Col: Mason. As the mode of appointment is now regulated, he could not forbear expressing his opinion that it is utterly inadmissible. He would prefer the Government of Prussia to one which will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy. The words "and of their giving their votes" being inserted on motion for that purpose, after the words "The Legislature may determine the time of chusing and assembling the Electors." The House adjourned. THURSDAY SEP^R 6. 1787. IN CONVENTION M^r King and M^r Gerry moved to insert in the (5)[54] clause of the Report (see Sep^r 4) after the words "may be entitled in the Legislature" the words following--"But no person shall be appointed an elector who is a member of the Legislature of the U. S. or who holds any office of profit or trust under the U. S." which passed nem: con: [54] This is a mistake and should be fourth clause. See p. 298. M^r Gerry proposed as the President was to be elected by the Senate out of the five highest candidates, that if he should not at the end of his term be re-elected by a majority of the Electors, and no other candidate should have a majority, the eventual election should be made by the Legislature. This he said would relieve the President from his particular dependence on the Senate for his continuance in office. M^r King liked the idea, as calculated to satisfy particular members and promote unanimity & as likely to operate but seldom. M^r Read opposed it, remarking that if individual members were to be indulged, alterations would be necessary to satisfy most of them. M^r Williamson espoused it as a reasonable precaution against the undue influence of the Senate. M^r Sherman liked the arrangement as it stood, though he should not be averse to some amendments. He thought he said that if the Legislature were to have the eventual appointment instead of the Senate, it ought to vote in the case by States, in favor of the small States, as the large States would have so great an advantage in nominating the candidates. M^r Gov^r Morris thought favorably of M^r Gerry's proposition. It would free the President from being tempted in naming to offices, to Conform to the will of the Senate, & thereby virtually give the appointments to office, to the Senate. M^r Wilson said that he had weighed carefully the report of the Committee for remodelling the constitution of the Executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have in fact, the appointment of the President, and through his dependence on them, the virtual appointment to offices; among others the Officers of the Judiciary Department. They are to make Treaties; and they are to try all impeachments. In allowing them thus to make the Executive & Judiciary appointments, to be the Court of impeachments, and to make Treaties which are to be laws of the land, the Legislative, Executive & Judiciary powers are all blended in one branch of the Government. The power of making Treaties involves the case of subsidies, and here as an additional evil, foreign influence is to be dreaded. According to the plan as it now stands, the President will not be the man of the people as he ought to be, but the minion of the Senate. He cannot even appoint a tide-waiter without the Senate. He had always thought the Senate too numerous a body for making appointments to office. The Senate will moreover in all probability be in constant Session. They will have high salaries. And with all those powers, and the President in their interest, they will depress the other branch of the Legislature, and aggrandize themselves in proportion. Add to all this, that the Senate sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ultimately before themselves. Upon the whole, he thought the new mode of appointing the President, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the Report, nor befriend a system of which they make a part. M^r Gov^r Morris expressed his wonder at the observations of M^r Wilson so far as they preferred the plan in the printed Report to the new modification of it before the House, and entered into a comparative view of the two, with an eye to the nature of M^r Wilsons objections to the last. By the first the Senate he observed had a voice in appointing the President out of all the Citizens of the U. S: by this they were limited to five candidates previously nominated to them, with a probability of being barred altogether by the successful ballot of the Electors. Here surely was no increase of power. They are now to appoint Judges nominated to them by the President. Before they had the appointment without any agency whatever of the President. Here again was surely no additional power. If they are to make Treaties as the plan now stands, the power was the same in the printed plan. If they are to try impeachments, the Judges must have been triable by them before. Wherein then lay the dangerous tendency of the innovations to establish an aristocracy in the Senate? As to the appointment of officers, the weight of sentiment in the House, was opposed to the exercise of it by the President alone; though it was not the case with himself. If the Senate would act as was suspected, in misleading the States into a fallacious disposition of their votes for a President, they would, if the appointment were withdrawn wholly from them, make such representations in their several States where they have influence, as would favor the object of their partiality. M^r Williamson, replying to M^r Morris, observed that the aristocratic complexion proceeds from the change in the mode of appointing the President which makes him dependent on the Senate. M^r Clymer said that the aristocratic part to which he could never accede was that in the printed plan, which gave the Senate the power of appointing to offices. M^r Hamilton said that he had been restrained from entering into the discussions by his dislike of the Scheme of Gov^t in General; but as he meant to support the plan to be recommended, as better than nothing, he wished in this place to offer a few remarks. He liked the new modification, on the whole, better than that in the printed Report. In this the President was a Monster elected for seven years, and ineligible afterwards; having great powers, in appointments to office, & continually tempted by this constitutional disqualification to abuse them in order to subvert the Government. Although he should be made re-eligible, still if appointed by the Legislature, he would be tempted to make use of corrupt influence to be continued in office. It seemed peculiarly desirable therefore that some other mode of election should be devised. Considering the different views of different States, & the different districts Northern Middle & Southern, he concurred with those who thought that the votes would not be concentered, and that the appointment would consequently in the present mode devolve on the Senate. The nomination to offices will give great weight to the President. Here then is a mutual connexion & influence, that will perpetuate the President, and aggrandize both him & the Senate. What is to be the remedy? He saw none better than to let the highest number of ballots, whether a majority or not, appoint the President. What was the objection to this? Merely that too small a number might appoint. But as the plan stands, the Senate may take the candidate having the smallest number of votes, and make him President. M^r Spaight & M^r Williamson moved to insert "seven" instead of "four" years for the term of the President[55]-- [55] An ineligibility w^d have followed (tho' it would seem from the vote not in the opinion of all) this prolongation of the term.--Madison's Note. On this motion N. H. ay. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. M^r Spaight & M^r Williamson, then moved to insert "six," instead of "four". On which motion N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no. On the term "four" all the States were ay, except N. Carolina, no. On the question (Clause 4. in the Report) for appointing President by electors---down to the words,--"entitled in the Legislature" inclusive N. H. ay. Mas: ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo.--ay. It was moved that the Electors meet at the seat of the Gen^l Gov^t which passed in the Negative N. C. only being ay. It was moved to insert the words "under the seal of the State" after the word "transmit" in the 4^{th}. clause of the Report which was disagreed to; as was another motion to insert the words "and who shall have given their votes" after the word "appointed" in the 4^{th} Clause of the Report as added yesterday on motion of M^r Dickinson. On several motions, the words "in presence of the Senate and House of Representatives" were inserted after the word "counted" and the word "immediately" before the word "choose;" and the words "of the Electors" after the word "votes." M^r Spaight said if the election by Electors is to be crammed down, he would prefer their meeting altogether and deciding finally without any reference to the Senate and moved "that the Electors meet at the seat of the General Government." M^r Williamson 2^{ded} the motion, on which all the States were in the negative except N: Carolina. On motion the words "But the election shall be on the same day throughout the U. S." were added after the words "transmitting their votes" N. H. ay. Mas. no. C^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo.--ay. On a question on the sentence in clause (4) "if such number be a majority of that of the Electors appointed" N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N.C. no. S. C. ay. Geo. ay. On a question on the clause referring the eventual appointment of the President to the Senate N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. V^a ay. N. C. no. Here the call ceased. M^r Madison made a motion requiring 2/3 at least of the Senate to be present at the choice of a President. M^r Pinkney 2^{ded} the motion. M^r Gorham thought it a wrong principle to require more than a majority in any case. In the present case it might prevent for a long time any choice of a President. On the question moved by M^r M. and M^r P. N. H. ay. Mas. abs^t. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Williamson suggested as better than an eventual choice by the Senate, that this choice should be made by the Legislature, voting by _States_ and not _per capita_. M^r Sherman suggested the "House of Rep^s" as preferable to the Legislature, and moved accordingly, To strike out the words "The Senate shall immediately choose &c." and insert "The House of Representatives shall immediately choose by ballot one of them for President, the members from each State having one vote." Col: Mason liked the latter mode best as lessening the aristocratic influence of the Senate. On the motion of M^r Sherman N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gov^r Morris suggested the idea of providing that in all cases, the President in office, should not be one of the five Candidates; but be only re-eligible in case a majority of the electors should vote for him. (This was another expedient for rendering the President independent of the Legislative body for his continuance in office.) M^r Madison remarked that as a majority of members w^d make a quorum in the H. of Rep^s it would follow from the amendment of M^r Sherman giving the election to a majority of States, that the President might be elected by two States only, Virg^a & Pen^a which have 18 members, if these States alone should be present. On a motion that the eventual election of Presid^t in case of _an equality_ of the votes of the electors be referred to the House of Rep^s N. H. ay. Mas. ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r King moved to add to the amendment of M^r Sherman "But a quorum for this purpose shall consist of a member or members from two thirds of the States, and also of a majority of the whole number of the House of Representatives." Col: Mason liked it as obviating the remark of M^r Madison--The motion as far as "States" inclusive was ag^d to. On the residue to wit, "and also of a majority of the whole number of the House of Reps^s." it passed in the negative. N. H. no. Mas. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. The Report relating to the appointment of the Executive stands as amended, as follows. "He shall hold his office during the term of four years, and together with the vice-President, chosen for the same term, be elected in the following manner. Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature: But no person shall be appointed an Elector who is a member of the Legislature of the U. S. or who holds any office of profit or trust under the U. S. The Electors shall meet in their respective States and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the Seat of the General Government, directed to the President of the Senate. The President of the Senate shall in the presence of the Senate and House of Representatives open all the certificates & the votes shall then be counted. The person having the greatest number of votes shall be the President (if such number be a majority of the whole number of electors appointed) and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President, the Representation from each State having one vote. But if no person have a majority, then from the five highest on the list, the House of Representatives shall in like manner choose by ballot the President. In the choice of a President by the House of Representatives, a Quorum shall consist of a member or members from two thirds of the States, ([56]and the concurrence of a majority of all the States shall be necessary to such choice.)--And in every case after the choice of the President, the person having the greatest number of votes of the Electors shall be the vice-president: But, if there should remain two or more who have equal votes, the Senate shall choose from them the vice-President.[57] [56] NOTE.--This clause was not inserted on this day, but on the 7^{th}. of Sep^r--See Friday the 7^{th}.--Madison's Note. [57] September 6 Madison wrote to Jefferson (cipher represented by italics): "... As the Convention will shortly rise I should feel little scruple in disclosing what will be public here, before it could reach you, were it practicable for me to guard by Cypher against an intermediate discovery. But I am deprived of this resource by the shortness of the interval between the receipt of your letter of June 20 and the date of this. This is the first day which has been free from Committee service, both before & after the hours of the House, and the last that is allowed me by the time advertised for the sailing of the packet. "The Convention consists now as it has generally done of Eleven States. There has been no intermission of its Sessions since a house was formed, except an interval of about ten days allowed a Committee appointed to detail the general propositions agreed on in the House. The term of its dissolution cannot be more than one or two weeks distant. A Gover^{mt} will probably be submitted to the _people of_ the _States_, consisting of a _President_, _cloathed_ with _Executive power_; a _Senate chosen_ by the _Legislatures_, and another _House chosen_ by the _people of the States_, jointly _possessing_ the _Legislative_ power; and a regular _Judiciary_ establishment. The mode of constituting the _Executive_ is among the few points not yet finally settled. The _Senate_ will consist of two _members_ from each _State_, and _appointed sexennially_. The other, of _members_, _appointed biennially_ by the _people of the States_, in proportion to their number. The Legislative power will _extend to taxation_, trade, and sundry other general matters. The powers of Congress will be _distributed_, according to their _nature_, _among the several departments_. The States will be _restricted from paper money_ and in a _few other instances_. These are _the outlines_. The extent of them may perhaps surprize you. I hazard an opinion nevertheless that the _plan_, _should it be adopted_, will neither effectually _answer_ its _national object_, nor prevent the local _mischiefs_ which everywhere _excite disgusts_ ag^{st} the _State Governments_. The grounds of this opinion will be the subject of a future letter. "I have written to a friend in Cong^s intimating in a covert manner the necessity of deciding & notifying the intentions of Cong^s with regard to their foreign Ministers after May next, and have dropped a hint on the communications of Dumas. "Congress have taken some measures for disposing of the public land, and have actually sold a considerable tract. Another bargain I learn is on foot for a further sale. "Nothing can exceed the universal anxiety for the event of the meeting here. Reports and conjectures abound concerning the nature of the plan which is to be proposed. The public however is certainly in the dark with regard to it. The Convention is equally in the dark as to the reception w^{ch} may be given to it on its publication. All the prepossessions are on the right side, but it may well be expected that certain characters will wage war against any reform whatever. My own idea is that the public mind will now or in a very little time receive anything that promises stability to the public Councils & security to private rights, and that no regard ought to be had to local prejudices or temporary considerations. If the present moment be lost, it is hard to say what may be our fate. "Our information from Virginia is far from being agreeable. In many parts of the Country the drought has been extremely injurious to the Corn. I fear, tho' I have no certain information, that Orange & Albemarle share in the distress. The people also are said to be generally discontented. A paper emission is again a topic among them, so is an instalment of all debts in some places and the making property a tender in others. The taxes are another source of discontent. The weight of them is complained of, and the abuses in collecting them still more so. In several Counties the prisons & Court Houses & Clerks' offices have been wilfully burnt. In Green Briar the course of Justice has been mutinously stopped, and associations entered into ag^{st} the payment of taxes. No other County has yet followed the example. The approaching meeting of the Assembly will probably allay the discontents on one side by measures which will excite them on another. "Mr. Wythe has never returned to us. His lady whose illness carried him away, died some time after he got home. The other deaths, in Virg^a are Col. A. Cary and a few days ago, Mrs. Harrison, wife of Benj^n Harrison, Jun^r, & sister of J. F. Mercer. Wishing you all happiness. "I remain, Dear sir, Y^{rs} affect^{ly}. "Give my best wishes to Mazzei. I have rec^d his letter & book and will write by the next packet to him. Dorhman is still in V^a Cong^s have done nothing for him in his affair. I am not sure that 9 St^s have been assembled of late. At present, it is doubtful whether there are seven."--Mad. MSS. The Legislature may determine the time of choosing the Electors, and of their giving their votes; and the manner of certifying and transmitting their votes--But the election shall be on the same day through-out the U. States." Adjourned. FRIDAY SEP^R 7[58] 1787. IN CONVENTION [58] The following letter was received on this day from Jonas Phillips, a Jew in Philadelphia: "SIRES "With leave and submission I address myself To those in whome there is wisdom understanding and knowledge. They are the honourable personages appointed and Made overseers of a part of the terrestrial globe of the Earth, Namely the 13 united states of america in Convention Assembled, the Lord preserve them amen-- "I the subscriber being one of the people called Jews of the City of Philadelphia, a people scattered and despersed among all nations do behold with Concern that among the laws in the Constitution of Pennsylvania their is a Clause Sect. 10 to viz--I do belive in one God the Creature and governour of the universe the Rewarder of the good and the punisher of the wicked--and I do acknowledge the scriptures of the old and New testement to be given by a devine inspiration--to swear and believe that the new testement was given by devine inspiration is absolutly against the Religious principle of a Jew and is against his Conscience to take any such oath--By the above law a Jew is deprived of holding any publick office or place of Government which is a Contridectory to the bill of Right Sect 2. viz "That all men have a natural and unalienable Right To worship almighty God according to the dectates of their own Conscience and understanding, and that no man aught or of Right can be compelled to attend any Religious Worship or Erect or support any place of worship or Maintain any minister contrary to or against his own free will and Consent nor Can any man who acknowledges the being of a God be Justly deprived or abridged of any Civil Right as a Citizen on account of his Religious sentiments or peculiar mode of Religious Worship, and that no authority Can or aught to be vested in or assumed by any power what ever that shall in any Case interfere or in any manner Controul the Right of Conscience in the free Exercise of Religious Worship-- "It is well known among all the Citizens of the 13 united States that the Jews have been true and faithfull whigs, and during the late Contest with England they have been foremost in aiding and assisting the States with their lifes and fortunes, they have supported the Cause, have bravely faught and bleed for liberty which they Can not Enjoy-- Therefore if the honourable Convention shall in ther Wisdom think fit and alter the said oath and leave out the words to viz--and I do acknowledge the scripture of the new testeraent to be given by devine inspiration then the Israeletes will think them self happy to live under a government where all Religious societys are on an Eaquel footing--I solecet this favour for my self my Childreen and posterity and for the benefit of all the Israeletes through the 13 united States of america. "My prayers is unto the Lord. May the people of this States Rise up as a great and young lion, May they prevail against their Enemies, May the degrees of honour of his Excellencey the president of the Convention George Washington, be Extollet and Raise up. May Every one speak of his glorious Exploits. May God prolong his days among us in this land of Liberty--May he lead the armies against his Enemys as he has done hereuntofore--May God Extend peace unto the united States--May they get up to the highest Prosperetys--May God Extend peace to them and their Seed after them so long as the Sun and moon Endureth--and may the almighty God of our father Abraham Isaac and Jacob endue this Noble Assembly with wisdom Judgement and unamity in their Councells, and may they have the Satisfaction to see that their present toil and labour for the wellfair of the united States may be approved of, Through all the world and perticular by the united States of america is the ardent prayer of Sires. "Your Most devoted obe^d Servant "JONAS PHILLIPS "Philadelphia 24^{th} Ellul 5547 or Sep^r 7^{th}. 1787"--Const. MSS. The mode of constituting the Executive being resumed, M^r Randolph moved, to insert in the first section of the report made yesterday "The Legislature may declare by law what officer of the U. S. shall act as President in case of the death, resignation, or disability of the President and Vice-President; and such officer shall act accordingly until the time of electing a President shall arrive." M^r Madison observed that this, as worded, would prevent a supply of the vacancy by an intermediate election of the President, and moved to substitute--"until such disability be removed, or a President shall be elected.[59] M^r Gov^r Morris 2^{ded} the motion, which was agreed to. [59] In the printed Journal this amendment is put into the original motion.--Madison's Note. It seemed to be an objection to the provision with some, that according to the process established for chusing the Executive, there would be difficulty in effecting it at other than the fixed periods; with others, that the Legislature was restrained in the temporary appointment to "_officers_" of the U. S.: They wished it to be at liberty to appoint others than such. On the Motion of M^r Randolph as amended, it passed in the affirmative. N. H. divided. Mas. no. C^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay. M^r Gerry moved "that in the election of President by the House of Representatives, no State shall vote by less than three members, and where that number may not be allotted to a State, it shall be made up by its Senators; and a concurrence of a majority of all the States shall be necessary to make such choice." Without some such provision five individuals might possibly be competent to an election; these being a majority of two thirds of the existing number of States; and two thirds being a quorum for this business. M^r Madison 2^{ded} the motion. M^r Read observed that the States having but one member only in the House of Rep^s would be in danger of having no vote at all in the election: the sickness or absence either of the Representative or one of the Senators would have that effect. M^r Madison replied that, if one member of the House of Representatives should be left capable of voting for the State, the states having one Representative only would still be subject to that danger. He thought it an evil that so small a number at any rate should be authorized to elect. Corruption would be greatly facilitated by it. The mode itself was liable to this further weighty objection that the representatives of a _Minority_ of the people, might reverse the choice of a _majority_ of the _States_ and of the _people_. He wished some cure for this inconveniency might yet be provided. M^r Gerry withdrew the first part of his motion; and on the, Question on the 2^d part viz: "and a concurrence of a majority of all the States shall be necessary to make such choice" to follow the words "a member or members from two thirds of the States"--It was agreed to nem: con: The section 2. (see Sep^r 4) requiring that the President should be a natural-born Citizen &c., & have been resident for fourteen years, & be thirty five years of age, was agreed to nem: con: Section 3 (see Sep^r 4). "The vice President shall be ex-officio President of the Senate" M^r Gerry opposed this regulation. We might as well put the President himself at the head of the Legislature. The close intimacy that must subsist between the President & vice-president makes it absolutely improper. He was ag^{st} having any vice President. M^r Gov^r Morris. The vice President then will be the first heir apparent that ever loved his father. If there should be no vice president, the President of the Senate would be temporary successor, which would amount to the same thing. M^r Sherman saw no danger in the case. If the vice-President were not to be President of the Senate, he would be without employment, and some member by being made President must be deprived of his vote, unless when an equal division of votes might happen in the Senate, which would be but seldom. M^r Randolph concurred in the opposition to the clause. M^r Williamson, observed that such an officer as vice-President was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time. Col: Mason, thought the office of vice-President an encroachment on the rights of the Senate; and that it mixed too much the Legislative & Executive, which as well as the Judiciary departments, ought to be kept as separate as possible. He took occasion to express his dislike of any reference whatever of the power to make appointments, to either branch of the Legislature. On the other hand he was averse to vest so dangerous a power in the President alone. As a method for avoiding both, he suggested that a privy Council of six members to the president should be established; to be chosen for six years by the Senate, two out of the Eastern two out of the middle, and two out of the Southern quarters of the Union, & to go out in rotation two every second year; the concurrence of the Senate to be required only in the appointment of Ambassadors, and in making treaties, which are more of a legislative nature. This would prevent the constant sitting of the Senate which he thought dangerous, as well as keep the departments separate & distinct. It would also save the expence of constant sessions of the Senate. He had he said always considered the Senate as too unwieldy & expensive for appointing officers, especially the smallest, such as tide waiters &c. He had not reduced his idea to writing, but it could be easily done if it should be found acceptable. On the question shall the vice President be ex officio President of the Senate? N. H. ay. Mas. ay. C^t ay. N. J. no. P^a ay. Del. ay. Mar. no. V^a ay. N. C. abs^t. S. C. ay. Geo. ay. The other parts of the same Section (3) were then agreed to. The Section 4.--to wit. "The President by & with the advice and consent of the Senate shall have power to make Treaties &c." M^r Wilson moved to add after the word "Senate" the words, "and House of Representatives." As treaties he said are to have the operation of laws, they ought to have the sanction of laws also. The circumstance of secrecy in the business of treaties formed the only objection; but this he thought, so far as it was inconsistent with obtaining the Legislative sanction, was outweighed by the necessity of the latter. M^r Sherman thought the only question that could be made was whether the power could be safely trusted to the Senate. He thought it could; and that the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature. M^r Fitzimmons 2^{ded} the motion of M^r Wilson, & on the question N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. The first sentence as to making treaties was then Agreed to; nem: con: "He shall nominate &c. Appoint Ambassadors &c." M^r Wilson objected to the mode of appointing, as blending a branch of the Legislature with the Executive. Good laws are of no effect without a good Executive; and there can be no good Executive without a responsible appointment of officers to execute. Responsibility is in a manner destroyed by such an agency of the Senate. He would prefer the council proposed by Col: Mason, provided its advice should not be made obligatory on the President. M^r Pinkney was against joining the Senate in these appointments, except in the instances of Ambassadors who he thought ought not to be appointed by the President. M^r Gov^r Morris said that as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security. As Congress now make appointments there is no responsibility. M^r Gerry. The idea of responsibility in the nomination to offices is Chimerical. The President cannot know all characters, and can therefore always plead ignorance. M^r King. As the idea of a Council proposed by Col. Mason has been supported by M^r Wilson, he would remark that most of the inconveniences charged on the Senate are incident to a Council of Advice. He differed from those who thought the Senate would sit constantly. He did not suppose it was meant that all the minute officers were to be appointed by the Senate, or any other original source, but by the higher officers of the departments to which they belong. He was of opinion also that the people would be alarmed at an unnecessary creation of new Corps which must increase the expence as well as influence of the Government. On the question on these words in the clause viz--"He shall nominate & by & with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers (and consuls) Judges of the Supreme Court". Agreed to nem: con: the insertion of "and consuls" having first taken place. On the question on the following words "And all other officers of U.S." N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. On motion of M^r Spaight--"that the President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting Commissions which shall expire at the end of the next Session of the Senate." It was agreed to nem: con: Section 4. "The President by and with the advice and consent of the Senate shall have power to make Treaties,--_But no treaty shall be made without the consent of two thirds of the members present_"--this last clause being before the House. M^r Wilson thought it objectionable to require the concurrence of 2/3 which puts it into the power of a minority to controul the will of a majority. M^r King concurred in the objection; remarking that as the Executive was here joined in the business, there was a check which did not exist in Congress where the concurrence of 2/3 was required. M^r Madison moved to insert after the word "treaty" the words "except treaties of peace" allowing these to be made with less difficulty than other treaties--It was agreed to nem: con: M^r Madison then moved to authorize a concurrence of two thirds of the Senate to make treaties of peace, without the concurrence of the President.--The President he said would necessarily derive so much power and importance from a state of war that he might be tempted if authorized, to impede a treaty of peace. M^r Butler 2^{ded} the motion. M^r Gorham thought the precaution unnecessary as the means of carrying on the war would not be in the hands of the President, but of the Legislature. M^r Gov^r Morris thought the power of the President in this case harmless; and that no peace ought to be made without the concurrence of the President, who was the general Guardian of the National interests. M^r Butler was strenuous for the motion, as a necessary security against ambitious & corrupt Presidents. He mentioned the late perfidious policy of the Statholder in Holland; and the artifices of the Duke of Marlbro' to prolong the war of which he had the management. M^r Gerry was of opinion that in treaties of peace a greater rather than less proportion of votes was necessary, than in other treaties. In Treaties of peace the dearest interests will be at stake, as the fisheries, territory &c. In treaties of peace also there is more danger to the extremities of the Continent of being sacrificed, than on any other occasions. M^r Williamson thought that Treaties of peace should be guarded at least by requiring the same concurrence as in other Treaties. On the motion of M^r Madison & M^r Butler N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay. On the part of the clause concerning treaties amended by the exception as to Treaties of peace, N. H. ay. Mas. ay. C^t ay. N. J. no. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no. "and may require the opinion in writing of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices," being before the House Col: Mason[60] said that in rejecting a Council to the President we were about to try an experiment on which the most despotic Government had never ventured. The Grand Signor himself had his Divan. He moved to postpone the consideration of the clause in order to take up the following. [60] In the printed Journal, M^r Madison is erroneously substituted for Col: Mason.--Madison's Note. "That it be an instruction to the Committee of the States to prepare a clause or clauses for establishing an Executive Council, as a Council of State for the President of the U. States, to consist of six members, two of which from the Eastern, two from the middle, and two from the Southern States, with a Rotation and duration of office similar to those of the Senate; such Council to be appointed by the Legislature or by the Senate." Doctor Franklin 2^{ded} the motion. We seemed he said too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. Experience shewed that caprice, the intrigues of favorites & mistresses, were nevertheless the means most prevalent in monarchies. Among instances of abuse in such modes of appointment, he mentioned the many bad Governors appointed in G. B. for the Colonies. He thought a Council would not only be a check on a bad President but be a relief to a good one. M^r Gov^r Morris. The question of a Council was considered in the Committee, where it was judged that the Presid^t by persuading his Council to concur in his wrong measures, would acquire their protection for them. M^r Wilson approved of a Council in preference to making the Senate a party to appointm^{ts}. M^r Dickinson was for a Council. It w^d be a singular thing if the measures of the Executive were not to undergo some previous discussion before the President. M^r Madison was in favor of the instruction to the Committee proposed by Col: Mason. The motion of M^r Mason was negatived. May^d ay. S. C. ay. Geo. ay.--N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. V^a no. N. C. no. On the question, "authorizing the President to call for the opinions of the Heads of Departments, in writing": it passed in the affirmative N. H. only being no.[61] [61] Not so stated in the printed Journal; but conformable to the result afterwards appearing.--Madison's Note. The clause was then unanimously agreed to-- M^r Williamson & M^r Spaight moved "that no Treaty of peace affecting Territorial rights sh^d be made without the concurrence of two thirds of the members of the Senate present." M^r King. It will be necessary to look out for securities for some other rights, if this principle be established; he moved to extend the motion--"to all present rights of the U. States." Adjourned. SATURDAY SEPTEMBER 8^{TH} IN CONVENTION The last Report of the Committee of Eleven (see Sep^r 4) was resumed. M^r King moved to strike out the "exception of Treaties of peace" from the general clause requiring two thirds of the Senate for making Treaties. M^r Wilson wished the requisition of two thirds to be struck out altogether. If the majority cannot be trusted, it was a proof, as observed by M^r Ghorum, that we were not fit for one Society. A reconsideration of the whole clause was agreed to. M^r Gov^r Morris was ag^{st} striking out the "exception of Treaties of peace." If two thirds of the Senate should be required for peace, the Legislature will be unwilling to make war for that reason, on account of the Fisheries or the Mississippi, the two great objects of the Union. Besides, if a majority of the Senate be for peace, and are not allowed to make it, they will be apt to effect their purpose in the more disagreeable mode, of negativing the supplies for the war. M^r Williamson remarked that Treaties are to be made in the branch of the Gov^t where there may be a majority of the States without a majority of the people. Eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace. There would be no danger, that the exposed States, as S. Carolina or Georgia, would urge an improper war for the Western Territory. M^r Wilson. If two thirds are necessary to make peace, the minority may perpetuate war, against the sense of the majority. M^r Gerry enlarged on the danger of putting the essential rights of the Union in the hands of so small a number as a majority of the Senate, representing perhaps, not one fifth of the people. The Senate will be corrupted by foreign influence. M^r Sherman was ag^{st} leaving the rights established by the Treaty of peace, to the Senate, & moved to annex a proviso that no such rights sh^d be ceded without the sanction of the Legislature. M^r Gov^r Morris seconded the ideas of M^r Sherman. M^r Madison observed that it had been too easy in the present Congress, to make Treaties altho' nine States were required for the purpose. On the question for striking "except Treaties of peace" N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Wilson & M^r Dayton move to strike out the clause requiring two thirds of the Senate for making Treaties; on which, N. H. no. Mas. no. C^t div^d. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Rutlidge & M^r Gerry moved that "no Treaty be made without the consent of 2/3 of all the members of the Senate"--according to the example in the present Cong^s. M^r Ghorum. There is a difference in the case, as the President's consent will also be necessary in the new Gov^t. On the question N. H. no. Mass. no. (M^r Gerry ay.) C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. M^r Sherman mov^d that no Treaty be made without a Majority of the whole number of the Senate. M^r Gerry seconded him. M^r Williamson. This will be less security than 2/3 as now required. M^r Sherman. It will be less embarrassing. On the question, it passed in the negative. N. H. no. Mass. ay. C^t ay. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. M^r Madison moved that a Quorum of the Senate consist of 2/3 of all the members. M^r Gov^r Morris--This will put it in the power of one man to break up a Quorum. M^r Madison. This may happen to any Quorum. On the Question it passed in the negative. N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Williamson & M^r Gerry mov^d "that no Treaty sh^d be made with^t previous notice to the members, & a reasonable time for their attending." On the Question All the States no; except N. C. S. C. & Geo. ay. On a question on clause of the Report of the Com^e of Eleven relating to Treaties by 2/3 of the Senate. All the States were ay.--except P^a N. J. & Geo. no. M^r Gerry mov^d that "no officer be app^d but to offices created by the Constitution or by law."--This was rejected as unnecessary by six no's & five ays: The Ayes. Mass. C^t N. J. N. C. Geo.--Noes. N. H. P^a Del. M^d V^a S. C. The clause referring to the Senate, the trial of impeachments ag^{st} the President, for Treason & bribery, was taken up. Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend the power of impeachments. He mov^d to add, after "bribery" "or maladministration." M^r Gerry seconded him. M^r Madison. so vague a term will be equivalent to a tenure during pleasure of the Senate. M^r Gov^r Morris, it will not be put in force & can do no harm. An election of every four years will prevent maladministration. Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemesnors ag^{st} the State." On the question thus altered N. H. ay. Mass. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay.[62] Geo. ay. [62] In the printed Journal, S. Carolina, no.--Madison's Note. M^r Madison objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemesnor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part. M^r Gov^r Morris thought no other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted. He was ag^{st} a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out. M^r Pinkney disapproved of making the Senate the Court of impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine ag^{st} him, and under the influence of heat and faction throw him out of office. M^r Williamson thought there was more danger of too much lenity than of too much rigour towards the President, considering the number of cases in which the Senate was associated with the President. M^r Sherman regarded the Supreme Court as improper to try the President, because the Judges would be appointed by him. On motion of M^r Madison to strike out the words--"by the Senate" after the word "conviction" N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. In the amendment of Col: Mason just agreed to, the word "State" after the words "misdemeanors against," was struck out, and the words "United States," inserted unanimously, in order to remove ambiguity. On the question to agree to clause as amended, N. H. ay. Mas. ay. Cont. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. On motion "The vice-President and other Civil officers of the U. S. shall be removed from office on impeachment and conviction as aforesaid" was added to the clause on the subject of impeachments. The clause of the report made on the 5^{th} Sep^r & postponed was taken up to wit--"All bills for raising revenue shall originate in the House of Representatives; and shall be subject to alterations and amendments by the Senate. No money shall be drawn from the Treasury but in consequence of appropriations made by law." It was moved to strike out the words "and shall be subject to alterations and amendments by the Senate" and insert the words used in the Constitution of Massachusetts on the same subject--"but the Senate may propose or concur with amendments as in other bills" which was agreed too nem: con: On the question On the first part of the clause--"All bills for raising revenue shall originate in the House of Representatives"[63] [63] This was a conciliatory vote, the effect of the compromise formerly alluded to. See Note Wednesday Sep^r 5.--Madison's Note. N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gov^r Morris moved to add to clause (3) of the report made on Sep^r 4. the words "and every member shall be on oath" which being agreed to, and a question taken on the clause so amended viz--"The Senate of the U. S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be on oath" N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del.--ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay. M^r Gerry repeated his motion above made on this day, in the form following: "The Legislature shall have the sole right of establishing offices not heretofore provided for" which was again negatived: Mas. Con^t & Geo. only being ay. M^r M^cHenry observed that the President had not yet been any where authorized to convene the Senate, and moved to amend Art X. sect. 2. by striking out the words "he may convene them (the Legislature) on extraordinary occasions," & insert, "He may convene both or either of the Houses on extraordinary occasions." This he added would also provide for the case of the Senate being in Session, at the time of convening the Legislature. M^r Wilson said he should vote ag^{st} the motion, because it implied that the senate might be in Session, when the Legislature was not, which he thought improper. On the question N. H. ay. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. ay. A Committee was then appointed by Ballot to revise the stile of and arrange the articles which had been agreed to by the House. The committee consisted of M^r Johnson, M^r Hamilton, M^r Gov^r Morris, M^r Madison and M^r King. M^r Williamson moved that, previous to this work of the Committee the clause relating to the number of the House of Representatives sh^d be reconsidered for the purpose of increasing the number. M^r Madison 2^{ded} the Motion. M^r Sherman opposed it he thought the provision on that subject amply sufficient. Col: Hamilton expressed himself with great earnestness and anxiety in favor of the motion. He avowed himself a friend to a vigorous Government, but would declare at the same time, that he held it essential that the popular branch of it should be on a broad foundation. He was Seriously of opinion that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties. He remarked that the connection between the President & Senate would tend to perpetuate him, by corrupt influence. It was the more necessary on this account that a numerous representation in the other branch of the Legislature should be established. On the motion of M^r Williamson to reconsider, it was negatived[64] N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no. [64] This motion & vote are entered on the Printed journal of the ensuing morning.--Madison's Note. Adj^d. MONDAY SEP^R 10. 1787 IN CONVENTION[65] [65] "There is said to be a disposition generally prevalent thro' this state to comply with y^e plan of y^e convention without much scrutiny, Hervey, who has been in Albemarle lately, says y^t Nicholas is determined to support it however contrary it may be to his own opinions. I am persuaded that those who sacrifice solid and permanent advantages in this plan, to their idea of the transitory disposition of the people, will condemn themselves hereafter."--James McClurg to Madison, September 10, 1787.--Mad. MSS. M^r Gerry moved to reconsider Art XIX. viz. "On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the U. S. shall call a Convention for that purpose," (see Aug 6). This constitution he said is to be paramount to the State Constitutions. It follows hence, from this article that two thirds of the States may obtain a Convention, a majority of which can bind the Union to innovations that may subvert the State Constitutions altogether. He asked whether this was a situation proper to be run into. M^r Hamilton 2^{ded} the motion, but he said with a different view from M^r Gerry. He did not object to the consequences stated by M^r Gerry. There was no greater evil in subjecting the people of the U.S. to the major voice than the people of a particular State. It had been wished by many and was much to have been desired that an easier mode of introducing amendments had been provided by the articles of the Confederation. It was equally desirable now that an easy mode should be established for supplying defects which will probably appear in the new System. The mode proposed was not adequate. The State Legislatures will not apply for alterations but with a view to increase their own powers. The National Legislature will be the first to perceive and will be most sensible to the necessity of amendments, and ought also to be empowered, whenever two thirds of each branch should concur to call a Convention. There could be no danger in giving this power, as the people would finally decide in the case. M^r Madison remarked on the vagueness of the terms, "call a Convention for the purpose," as sufficient reason for reconsidering the article. How was a Convention to be formed? by what rule decide? what the force of its acts? On the motion of M^r Gerry to reconsider N. H. div^d. Mas. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Sherman moved to add to the article "or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States." M^r Gerry 2^{ded} the motion. M^r Wilson moved to insert, "two thirds of" before the words "several States"--on which amendment to the motion of M^r Sherman N. H. ay. Mas. no. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. M^r Wilson then moved to insert "three fourths of" before "the several Sts." which was agreed to nem: con: M^r Madison moved to postpone the consideration of the amended proposition in order to take up the following, "The Legislature of the U. S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S:" M^r Hamilton 2^{ded} the motion. M^r Rutlidge said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it. In order to obviate this objection, these words were added to the proposition:[66] "provided that no amendments which may be made prior to the year 1808 shall in any manner affect the 4 & 5 sections of the VII article."--The postponement being agreed to, [66] The Printed Journal makes the succeeding proviso as to sections 4 & 5, of the art: VII moved by M^r Rutlidge, part of the proposition of M^r Madison.--Madison's Note. On the question on the proposition of M^r Madison & M^r Hamilton as amended N. H. div^d. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gerry moved to reconsider Art: XXI and XXII. from the latter of which "for the approbation of Cong^s" had been struck out. He objected to proceeding to change the Government without the approbation of Congress, as being improper and giving just umbrage to that body: He repeated his objections also to an annulment of the confederation with so little scruple or formality. M^r Hamilton concurred with M^r Gerry as to the indecorum of not requiring the approbation of Congress. He considered this as a necessary ingredient in the transaction. He thought it wrong also to allow nine States as provided by Art XXI. to institute a new Government on the ruins of the existing one. He w^d propose as a better modification of the two articles (XXI & XXII) that the plan should be sent to Congress in order that the same if approved by them, may be communicated to the State Legislatures, to the end that they may refer it to State conventions; each Legislature declaring that if the Convention of the State should think the plan ought to take effect among nine ratifying States, the same sh^d take effect accordingly. M^r Gorham. Some States will say that nine States shall be sufficient to establish the plan, others will require unanimity for the purpose. And the different and conditional ratifications will defeat the plan altogether. M^r Hamilton. No Convention convinced of the necessity of the plan will refuse to give it effect on the adoption by nine States. He thought this mode less exceptionable than the one proposed in the article, while it would attain the same end. M^r Fitzimmons remarked that the words "for their approbation" had been struck out in order to save Congress from the necessity of an Act inconsistent with the Articles of Confederation under which they held their authority. M^r Randolph declared, if no change should be made in this part of the plan, he should be obliged to dissent from the whole of it. He had from the beginning he said been convinced that radical changes in the system of the Union were necessary. Under this conviction he had brought forward a set of republican propositions as the basis and outline of a reform. These Republican propositions had however, much to his regret, been widely, and, in his opinion, irreconcileably departed from. In this state of things it was his idea and he accordingly meant to propose, that the State Conventions sh^d be at liberty to offer amendments to the plan; and that these should be submitted to a second General Convention, with full power to settle the Constitution finally. He did not expect to succeed in this proposition, but the discharge of his duty in making the attempt, would give quiet to his own mind. M^r Wilson was against a reconsideration for any of the purposes which had been mentioned. M^r King thought it would be more respectful to Congress to submit the plan generally to them; than in such a form as expressly and necessarily to require their approbation or disapprobation. The assent of nine States he considered as sufficient; and that it was more proper to make this a part of the Constitution itself, than to provide for it by a supplemental or distinct recommendation. M^r Gerry urged the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the articles of confederation. If nine out of thirteen can dissolve the compact. Six out of nine will be just as able to dissolve the new one hereafter. M^r Sherman was in favor of M^r King's idea of submitting the plan generally to Congress. He thought nine States ought to be made sufficient: but that it would be best to make it a separate act and in some such form as that intimated by Col: Hamilton, than to make it a particular article of the Constitution. On the question for reconsidering the two articles, XXI & XXII-- N. H. div^d. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. M^r Hamilton then moved to postpone art XXI in order to take up the following, containing the ideas he had above expressed, viz Resolved that the foregoing plan of a Constitution be transmitted to the U. S. in Congress assembled, in order that if the same shall be agreed to by them, it may be communicated to the Legislatures of the several States, to the end that they may provide for its final ratification by referring the same to the Consideration of a Convention of Deputies in each State to be chosen by the people thereof, and that it be recommended to the said Legislatures in their respective acts for organizing such convention to declare, that if the said Convention shall approve of the said Constitution, such approbation shall be binding and conclusive upon the State, and further that if the said Convention should be of opinion that the same upon the assent of any nine States thereto, ought to take effect between the States so assenting, such opinion shall thereupon be also binding upon such a State, and the said Constitution shall take effect between the States assenting thereto. M^r Gerry 2^{ded} the motion. M^r Wilson. This motion being seconded, it is necessary now to speak freely. He expressed in strong terms his disapprobation of the expedient proposed, particularly the suspending the plan of the Convention on the approbation of Congress. He declared it to be worse than folly to rely on the concurrence of the Rhode Island members of Cong^s in the plan. Maryland has voted on this floor; for requiring the unanimous assent of the 13 States to the proposed change in the federal System. N. York has not been represented for a long time past in the Convention. Many individual deputies from other States have spoken much against the plan. Under these circumstances can it be safe to make the assent of Congress necessary. After spending four or five months in the laborious & arduous task of forming a Government for our Country, we are ourselves at the close throwing insuperable obstacles in the way of its success. M^r Clymer thought that the mode proposed by M^r Hamilton would fetter & embarrass Cong^s as much as the original one, since it equally involved a breach of the articles of Confederation. M^r King concurred with M^r Clymer. If Congress can accede to one mode, they can to the other. If the approbation of Congress be made necessary, and they should not approve, the State Legislatures will not propose the plan to Conventions; or if the States themselves are to provide that nine States shall suffice to establish the System, that provision will be omitted, every thing will go into confusion, and all our labor be lost. M^r Rutlidge viewed the matter in the same light with M^r King. On the question to postpone in order to take up Col: Hamilton's motion N. H. no. Mas. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. A Question being then taken on the article XXI. It was agreed to unanimously. Col: Hamilton withdrew the remainder of the motion to postpone art. XXII, observing that his purpose was defeated by the vote just given. M^r Williamson & M^r Gerry moved to re-instate the words "for the approbation of Congress" in Art: XXII. which was disagreed to nem: con: M^r Randolph took this opportunity to state his objections to the System. They turned on the Senate's being made the Court of Impeachment for trying the Executive--on the necessity of 3/4 instead of 2/3 of each house to overrule the negative of the President--on the smallness of the number of the Representative branch,--on the want of limitation to a standing army--on the general clause concerning necessary and proper laws--on the want of some particular restraint on navigation acts--on the power to lay duties on exports--on the authority of the General Legislature to interpose on the application of the _Executives_ of the States--on the want of a more definite boundary between the General & State Legislatures--and between the General and State Judiciaries--on the unqualified power of the President to pardon treasons--on the want of some limit to the power of the Legislature in regulating their own compensations. With these difficulties in his mind, what course he asked was he to pursue? Was he to promote the establishment of a plan which he verily believed would end in Tyranny? He was unwilling he said to impede the wishes and Judgment of the Convention, but he must keep himself free, in case he should be honored with a seat in the Convention of his State, to act according to the dictates of his judgment. The only mode in which his embarrassments could be removed, was that of submitting the plan to Cong^s to go from them to the State Legislatures, and from these to State Conventions having power to adopt reject or amend; the process to close with another General Convention with full power to adopt or reject the alterations proposed by the State Conventions, and to establish finally the Government. He accordingly proposed a Resolution to this effect. Doc^r Franklin 2^{ded} the motion. Col: Mason urged & obtained that the motion should lie on the table for a day or two to see what steps might be taken with regard to the parts of the system objected to by M^r Randolph. M^r Pinkney moved "that it be an instruction to the Committee for revising the stile and arrangement of the articles agreed on, to prepare an address to the people, to accompany the present Constitution, and to be laid with the same before the U. States in Congress." [67]The motion itself was referred to the Committee nem: con: [67]M^r Randolph moved to refer to the Committee also a motion relating to pardons in cases of Treason--which was agreed to nem: con: [67] These motions are not entered in the printed Journal.--Madison's Note. Adjourned. TUESDAY SEP^R 11. 1787. IN CONVENTION The Report of the Committee of stile & arrangement not being made & being waited for, The House Adjourned. WEDNESDAY SEP^R 12. 1787. IN CONVENTION Doc^r Johnson from the Committee of stile &c. reported a digest of the plan, of which printed copies were ordered to be furnished to the members. He also reported a letter to accompany the plan, to Congress.[68] [68] A note by Madison in the text says: "(here insert a transcript of the former from the annexed sheet as _printed_ and of the latter from the draft as finally agreed to,)" and his footnote says: "This is a literal copy of the printed Report. The Copy in the printed Journal contains some of the alterations subsequently made in the House." No transcript of the report was, however, made by Madison, but the printed copy is among his papers. It is a large folio of four pages printed on one side of each page, and is accurately reproduced here. Madison's copy is marked by him: "as reported by Com^e of revision, or stile and arrangement Sep^r 12." The report is, in fact, correctly printed in the _Journal of the Federal Convention_, 351, _et seq._, Madison's statement to the contrary being an error. General Bloomfield furnished Brearley's copy to John Quincy Adams, and he printed it without the alterations and amendments which Brearley had made. The extent of Brearley's alterations and amendments may be seen in the copy printed in the _Documentary History of the Constitution_, i., 362, _et seq._ WE, THE PEOPLE OF THE UNITED STATES, IN ORDER TO FORM a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. _Sect._ 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. _Sect._ 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to servitude for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every forty thousand, but each state shall have at least one representative: and until such enumeration shall be made, the state of New-Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York, six, New-Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North-Carolina five, South-Carolina five, and Georgia three. When vacancies happen in the representation from any state, the Executive authority thereof shall issue writs of election to fill such vacancies. The House of Representatives shall choose their Speaker and other officers; and they shall have the sole power of impeachment. _Sect._ 3. The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years: and each senator shall have one vote. Immediately after they shall be assembled in consequence of the first election, they shall be divided[69] as equally as may be into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year: and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any state, the Executive thereof may make temporary appointments until the next meeting of the Legislature. [69] The words, "by lot," were not in the Report as printed; but were inserted in manuscript, as a typographical error, departing from the text of the Report referred to the Committee of style & arrangement.--Marginal note by Madison. No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. The Vice-President of the United States shall be, ex officio,[70] President of the senate, but shall have no vote, unless they be equally divided. [70] Ex officio struck out in Madison's copy. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. _Sect._ 4. The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof: but the Congress may at any time by law make or alter such regulations. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. _Sect._ 5. Each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business: but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. Each house may determine the rules of its proceedings; punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal. Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. _Sect._ 6. The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been encreased during such time; and no person holding any office under the United States, shall be a member of either house during his continuance in office. _Sect._ 7. The enacting stile of the laws shall be, "Be it enacted by the senators and representatives in Congress assembled." All bills for raising revenue shall originate in the house of representatives: but the senate may propose or concur with amendments as on other bills. Every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the United States. If he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by[71] three-fourths[72] of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. [71] In the entry of this Report in the printed Journal "two-thirds" are substituted for "three-fourths." This change was made after the Report was received.--Madison's Note. This is a mistake. The printed Journal has it "three fourths." [72] A marginal note says "two thirds." _Sect._ 8. The Congress may by joint ballot appoint a treasurer. They shall have power To lay and collect taxes, duties, imposts and excises; to pay the debts and provide for the common defence and general welfare of the United States.[73] [73] "but all duties imposts & excises shall be uniform throughout the U. States," interlined by Madison. To borrow money on the credit of the United States. To regulate commerce with foreign nations, among the several states, and with the Indian tribes. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. To provide for the punishment of counterfeiting the securities and current coin of the United States. To establish post offices and post roads. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. To constitute tribunals inferior to the supreme court. To define and punish piracies and felonies committed on the high seas, and[74] offences against the law of nations. [74] (punish) a typographical omission.--Madison's Note. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. To raise and support armies: but no appropriations of money to that use shall be for a longer term than two years. To provide and maintain a navy. To make rules for the government and regulation of the land and naval forces. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings--And To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. _Sect._ 9. The migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. No bill of attainder shall be passed, nor any ex post facto law. No capitation tax shall be laid, unless in proportion to the census herein before directed to be taken.[75] [75] "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another--nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another," interlined by Madison. No tax or duty shall be laid on articles exported from any State. No money shall be drawn from the treasury, but in consequence of appropriations made by law. No title of nobility shall be granted by the United States. And no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. _Sect._ 10. No state shall coin money, nor emit bills of credit, nor make anything but gold or silver coin a tender in payment of debts, nor pass any bill of attainder, nor ex post facto laws, nor laws altering or impairing the obligation of contracts; nor grant letters of marque and reprisal, nor enter into any treaty, alliance, or confederation, nor grant any title of nobility. No state shall, without the consent of Congress, lay imposts or duties on imports or exports, nor with such consent, but to the use of the treasury of the United States.[76][77] Nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another state, nor with any foreign power. Nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so iminent, as not to admit of delay until the Congress can be consulted. [76] provided that no State shall be restrained from imposing the usual duties on produce exported from such State for the sole purpose of defraying the charges of inspecting packing storing & indemnifying the losses on such produce while in the custody of public officers. But all such regulations shall in case of abuse be subject to the revision & controul of Congress.--Marginal note by Madison. [77] "No State shall without the consent of Congress," interlined by Madison. II. _Sect._ 1. The executive power shall be vested in a president of the United States of America. He shall hold his office during the term of four years, and, altogether with the vice-president, chosen for the same term, be elected in the following manner: Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in Congress: but no senator or representative shall be appointed an elector, nor any person holding an office of trust or profit under the United States. The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the general government, directed to the president of the senate. The president of the senate shall in the presence of the senate and house of representatives open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately chuse by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. But in choosing the president, the votes shall be taken by states and not per capita,[78] the representation from each state having one vote. A quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the president by the representatives,[79] the person having the greatest number of votes of the electors shall be the vice-president. But if there should remain two or more who have equal votes, the senate shall choose from them by ballot the vice-president. [78] "and not per capita" struck out by Madison. [79] "by the representatives" struck out by Madison. The Congress may determine the time of chusing the electors, and the time in[80] which they shall give their votes; but the election shall be on the same day[81] throughout the United States. [80] The words "day on" substituted by Madison. [81] "but the election shall be on the same day" struck out & "which day shall be the same" inserted by Madison. No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or the period for chusing another president arrive.[82] [82] "the period for chusing another president arrive" struck out and "a president be chosen" inserted by Madison. The president shall, at stated times, receive a fixed compensation for his services, which shall neither be encreased nor diminished during the period for which he shall have been elected. Before he enter on the execution of his office, he shall take the following oath or affirmation: "I ----, do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my judgment and power, preserve, protect and defend the constitution of the United States." _Sect._ 2. The president shall be commander in chief of the army and navy of the United States, and of the militia of the several States: he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, when called into the actual service of the United States,[83] and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. [83] It so appears in the printed copy, but the clause "when called into the actual service of the United States" was intended to follow immediately after "militia of the several States." He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for. The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. _Sect._ 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient: he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper: he shall receive ambassadors and other public ministers: he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. _Sect._ 4. The president, vice-president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors. III. _Sect._ 1. The judicial power of the United States, both in law and equity, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. _Sect._ 2. The judicial power shall extend to all cases, both in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. To all cases affecting ambassadors, other public ministers and consuls. To all cases of admiralty and maritime jurisdiction. To controversies to which the United States shall be a party. To controversies between two or more States; between a state and citizens of another state; between citizens of different States; between citizens of the same state claiming lands under grants of different States, and between a state, or the citizens thereof, and foreign States, citizens or subjects. In cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. _Sect._ 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood nor forfeiture, except during the life of the person attainted. IV. _Sect._ 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. _Sect._ 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up, and removed to the state having jurisdiction of the crime. No person legally held to service or labour in one state, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due. _Sect._ 3. New states may be admitted by the Congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States: and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state. _Sect._ 4. The United States shall guarantee to every state in this union a Republican form of government, and shall protect each of them against invasion; and on application of the legislature or executive, against domestic violence. V. The Congress, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds[84] of the legislatures[85] of the several states, shall propose amendments to this constitution, which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three-fourths at least of[86] the legislatures[87] of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the ----[88] and[89] ---- section[90] of[91] article. [84] "of two thirds" struck out by Madison. [85] "of two-thirds" inserted by Madison. [86] "three-fourths at least of" struck out by Madison. [87] "of three-fourths" inserted by Madison. [88] "1 & 4 clauses in the 9" inserted by Madison. [89] "and" struck out by Madison. [90] Changed to "sections" by Madison. [91] "the first" inserted by Madison. VI. All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the United States under this Constitution as under the confederation. This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. The senators and representatives beforementioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. VII. The ratification of the conventions of nine States, shall be sufficient for the establishment of this constitution between the States so ratifying the same. LETTER.[92] [92] The draft of the letter accompanied the draft of the Constitution, but was not printed with it. The Journal says (Sept. 12): "The draft of a letter to Congress being at the same time reported, was read once throughout; and afterwards agreed to by paragraphs." (_Const. MSS. and Journal_, p. 367.) The draft is in the handwriting of Gouverneur Morris and was undoubtedly prepared by him. It was turned over to Washington by Jackson with the other papers of the convention. The draft of the Constitution must have been among those papers he destroyed. Probably it too was written by Morris. The letter having been accepted September 12, was printed with the final Constitution September 17. It does not appear to have caused debate. We have now the Honor to submit to the Consideration of the United States in Congress assembled that Constitution which has appeared to us the most advisable. The Friends of our Country have long seen and desired that the Power of making War Peace and Treaties, that of levying Money & regulating Commerce and the correspondent executive and judicial Authorities should be fully and effectually vested in the general Government of the Union. But the Impropriety of delegating such extensive Trust to one Body of Men is evident. Hence results the Necessity of a different organization. It is obviously impracticable in the foederal Government of these States to secure all Rights of independent Sovereignty to each and yet provide for the Interest and Safety of all. Individuals entering into Society must give up a Share of Liberty to preserve the Rest. The Magnitude of the Sacrifice must depend as well on Situation and Circumstances as on the Object to be obtained. It is at all times difficult to draw with Precision the Line between those Rights which must be surrendered and those which may be reserved. And on the present Occasion this Difficulty was increased by a Difference among the several States as to their Situation Extent Habits and particular Interests. In all our Deliberations on this Subject we kept steadily in our View that which appears to us the greatest Interest of every true American The Consolidation of our Union in which is involved our Prosperity Felicity Safety perhaps our national Existence. This important Consideration seriously and deeply impressed on our Minds led each State in the Convention to be less rigid in Points of inferior Magnitude than might have been otherwise expected. And thus the Constitution which we now present is the Result of a Spirit of Amity and of that mutual Deference & Concession which the Peculiarity of our political Situation rendered indispensable. That it will meet the full and entire approbation of every State is not perhaps to be expected. But each will doubtless consider that had her Interests been alone consulted the Consequences might have been particularly disagreable or injurious to others. That it is liable to as few Exceptions as could reasonably have been expected we hope and believe. That it may promote the lasting Welfare of that Country so dear to us all and secure her Freedom and Happiness is our most ardent Wish-- M^r Williamson moved to reconsider the clause requiring three fourths of each House to overrule the negative of the President, in order to strike out 3/4 and insert 2/3. He had he remarked himself proposed 3/4 instead of 2/3, but he had since been convinced that the latter proportion was the best. The former puts too much in the power of the President. M^r Sherman was of the same opinion; adding that the States would not like to see so small a minority and the President, prevailing over the general voice. In making laws regard should be had to the sense of the people, who are to be bound by them, and it was more probable that a single man should mistake or betray this sense than the Legislature. M^r Gov^r Morris. Considering the difference between the two proportions numerically, it amounts in one House to two members only; and in the others to not more than five; according to the numbers of which the Legislature is at first to be composed. It is the interest moreover of the distant States to prefer 3/4 as they will be oftenest absent and need the interposing check of the President. The excess rather than the deficiency, of laws was to be dreaded. The example of N. York shews that 2/3 is not sufficient to answer the purpose. M^r Hamilton added his testimony to the fact that 2/3 in N. York had been ineffectual either where a popular object, or a legislative faction operated; of which he mentioned some instances. M^r Gerry. It is necessary to consider the danger on the other side also. 2/3 will be a considerable, perhaps a proper security. 3/4 puts too much in the power of a few men. The primary object of the revisionary check in the President is not to protect the general interest, but to defend his own department. If 3/4 be required, a few Senators having hopes from the nomination of the President to offices, will combine with him and impede proper laws. Making the vice-President Speaker increases the danger. M^r Williamson was less afraid of too few than of too many laws. He was most of all afraid that the repeal of bad laws might be rendered too difficult by requiring 3/4 to overcome the dissent of the President. Col: Mason had always considered this as one of the most exceptionable parts of the System. As to the numerical argument of M^r Gov^r Morris, little arithmetic was necessary to understand that 3/4 was more than 2/3, whatever the numbers of the Legislature might be. The example of New York depended on the real merits of the laws. The Gentlemen citing it, had no doubt given their own opinions. But perhaps there were others of opposite opinions who could equally paint the abuses on the other side. His leading view was to guard against too great an impediment to the repeal of laws. M^r Gov^r Morris dwelt on the danger to the public interest from the instability of laws, as the most to be guarded against. On the other side there could be little danger. If one man in office will not consent where he ought, every fourth year another can be substituted. This term was not too long for fair experiments. Many good laws are not tried long enough to prove their merit. This is often the case with new laws opposed to old habits. The Inspection laws of Virginia & Maryland to which all are now so much attached were unpopular at first. M^r Pinkney was warmly in opposition to 3/4 as putting a dangerous power in the hands of a few Senators headed by the President. M^r Madison. When 3/4 was agreed to, the President was to be elected by the legislature and for seven years. He is now to be elected by the people and for four years. The object of the revisionary power is two fold. 1. to defend the Executive rights 2. to prevent popular or factious injustice. It was an important principle in this & in the State Constitutions to check legislative injustice and encroachments. The Experience of the States had demonstrated that their checks are insufficient. We must compare the danger from the weakness of 2/3 with the danger from the strength of 3/4. He thought on the whole the former was the greater. As to the difficulty of repeals it was probable that in doubtful cases the policy would soon take place of limiting the duration of laws so as to require renewal instead of repeal. The reconsideration being agreed to. On the question to insert 2/3 in place of 3/4. N. H. div^d. Mas. no. C^t ay. N. J. ay. P^a no. Del. no. M^d ay. M^r McHenry no. V^a no. Gen^l Washington M^r Blair, M^r Madison no. Col. Mason, M^r Randolph ay. N. C. ay. S. C. ay. Geo. ay. M^r Williamson, observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it. M^r Gorham. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter. M^r Gerry urged the necessity of Juries to guard ag^{st} corrupt Judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by Juries. Col: Mason perceived the difficulty mentioned by M^r Gorham. The jury cases cannot be specified. A general principle laid down on this and some other points would be sufficient. He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours. M^r Gerry concurred in the idea & moved for a Committee to prepare a Bill of Rights. Col: Mason 2^{ded} the motion. M^r Sherman, was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient. There are many cases where juries are proper which cannot be discriminated. The Legislature may be safely trusted. Col: Mason. The laws of the U. S. are to be paramount to State Bills of Rights. On the question for a Com^e to prepare a Bill of Rights N. H. no. Mas. abs^t. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. The Clause relating to exports being reconsidered, at the instance of Col: Mason, who urged that the restriction on the States would prevent the incidental duties necessary for the inspection & safekeeping of their produce, and be ruinous to the Staple States, as he called the five Southern States, he moved as follows--"provided nothing herein contained shall be construed to restrain any State from laying duties upon exports for the sole purpose of defraying the charges of inspecting, packing, storing and indemnifying the losses in keeping the commodities in the care of public officers, before exportation." In answer to a remark which he anticipated, to wit, that the States could provide for these expences, by a tax in some other way, he stated the inconveniency of requiring the Planters to pay a tax before the actual delivery for exportation. M^r Madison 2^{ded} the motion. It would at least be harmless; and might have the good effect of restraining the States to bona fide duties for the purpose, as well as of authorizing explicitly such duties; tho' perhaps the best guard against an abuse of the power of the States on this subject, was the right in the Gen^l Government to regulate trade between State & State. M^r Gov^r Morris saw no objection to the motion. He did not consider the dollar per Hhd laid on Tob^o in Virg^a as a duty on exportation, as no drawback would be allowed on Tob^o taken out of the Warehouse for internal consumption. M^r Dayton was afraid the proviso w^d enable Pennsylv^a to tax N. Jersey under the idea of Inspection duties of which Pen^a would Judge. M^r Gorham & M^r Langdon, thought there would be no security if the proviso sh^d be agreed to, for the States exporting thro' other States, ag^{st} these oppressions of the latter. How was redress to be obtained in case duties should be laid beyond the purpose expressed? M^r Madison. There will be the same security as in other cases. The jurisdiction of the supreme Court must be the source of redress. So far only had provision been made by the plan ag^{st} injurious acts of the States. His own opinion was, that this was sufficient. A negative on the State laws alone could meet all the shapes which these could assume. But this had been overruled. M^r Fitzimmons. Incidental duties on Tob^o & flour never have been & never can be considered as duties on exports. M^r Dickinson. Nothing will save the States in the situation of N. Hampshire N. Jersey Delaware &c. from being oppressed by their neighbors, but requiring the assent of Cong^s to inspection duties. He moved that this assent sh^d accordingly be required. M^r Butler 2^{ded} the motion. Adjourned. THURSDAY SEP^R 13. 1787. IN CONVENTION Col. Mason.[93] He had moved without success for a power to make sumptuary regulations. He had not yet lost sight of his object. After descanting on the extravagance of our manners, the excessive consumption of foreign superfluities, and the necessity of restricting it, as well with oeconomical as republican views, he moved that a Committee be appointed to report articles of association for encouraging by the advice the influence and the example of the members of the Convention, oeconomy frugality and american manufactures. [93] The dissensions among the Virginia delegates had leaked out, for Joseph Jones, Fredericksburg, September 13, 1787, wrote to Madison that a rumor of their disagreement was current in Virginia.--Chicago Historical Society MSS. Doc^r Johnson 2^{ded} the motion which was without debate agreed to, nem: con: and a Committee appointed, consisting of Col: Mason, Doc^r Franklin, M^r Dickenson, Doc^r Johnson and M^r Livingston.[94] [94] This motion, & appointment of the Co[~m]ittee, not in the printed Journal. No report was made by the Com^e--Madison's Note. Col: Mason renewed his proposition of yesterday on the subject of inspection laws, with an additional clause giving to Congress a controul over them in case of abuse--as follows: "Provided that no State shall be restrained from imposing the usual duties on produce exported from such State, for the sole purpose of defraying the charges of inspecting, packing, storing, and indemnifying the losses on such produce, while in the custody of public officers: but all such regulations shall in case of abuse, be subject to the revision and controul of Congress." There was no debate & on the question N. H. ay. Mas. ay. C^t ay. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. The Report from the committee of stile & arrangement, was taken up, in order to be compared with the articles of the plan as agreed to by the House & referred to the Committee, and to receive the final corrections and sanction of the Convention. Art: 1, sect. 2. On motion of M^r Randolph the word "servitude" was struck out, and "service" unanimously[95] inserted, the former being thought to express the condition of slaves, & the latter the obligations of free persons. [95] See page 372 of the printed Journal.--Madison's Note. M^r Dickenson & M^r Wilson moved to strike out, "and direct taxes," from sect. 2, art. 1, as improperly placed in a clause relating merely to the Constitution of the House of Representatives. M^r Gov^r Morris. The insertion here was in consequence of what had passed on this point; in order to exclude the appearance of counting the negroes in _the Representation_. The including of them may now be referred to the object of direct taxes, and incidentally only to that of Representation. On the motion to strike out "and direct taxes" from this place N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. Art. 1, sect. 7.--"if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him &c." M^r Madison moved to insert between "after" and "it" in sect. 7, Art. 1 the words "the day on which," in order to prevent a question whether the day on which the bill be presented ought to be counted or not as one of the ten days. M^r Randolph 2^{ded} the motion. M^r Governe^r Morris. The amendment is unnecessary. The law knows no fractions of days. A number of members being very impatient & calling for the question N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.-- Doc^r Johnson made a further report from the Committee of stile &c. of the following resolutions to be substituted for 22 & 23 articles. "Resolved that the preceding Constitution be laid before the U. States in Congress assembled, and that it is the opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates chosen in each State by the people thereof, under the recommendation of its Legislature, for their assent & ratification; & that each Convention assenting & ratifying the same should give notice thereof to the U. S. in Cong^s assembled. "Resolved that it is the opinion of this Convention that as soon as the Conventions of nine States, shall have ratified this Constitution, the U. S. in Cong^s assembled should fix a day on which electors should be appointed by the States which shall have ratified the same; and a day on which the Electors should assemble to vote for the President; and the time and place for commencing proceedings under this Constitution--That after such publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the day fixed for the election of the President, and should transmit their votes certified signed, sealed and directed, as the Constitution requires, to the Secretary of the U. States in Cong^s assembled: that the Senators and Representatives should convene at the time & place assigned: that the Senators should appoint a President for the sole purpose of receiving, opening, and counting the votes for President, and that after he shall be chosen, the Congress, together with the President should without delay proceed to execute this Constitution." Adjourned. FRIDAY SEP^R 14^{TH}. 1787. IN CONVENTION The Report of the Committee of stile & arrangement being resumed, M^r Williamson moved to reconsider in order to increase the number of Representatives fixed for the first Legislature. His purpose was to make an addition of one half generally to the number allotted to the respective States; and to allow two to the smallest States. On this motion N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no. Art. I. sect. 3. the words "by lot"[96] were struck out nem: con: on motion of M^r Madison, that some rule might prevail in the rotation that would prevent both the members from the same State from going out at the same time. [96] "By lot" had been reinstated from the Report of five Aug. 6. as a correction of the printed report by the Com^e of stile & arrangement.--Madison's Note. "Ex officio" struck out of the same section as superfluous; nem: con; and "or affirmation" after "oath" inserted also unanimously. M^r Rutlidge and M^r Gov^r Morris moved "that persons impeached be suspended from their office until they be tried and acquitted." M^r Madison. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension, will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate. M^r King concurred in the opposition to the amendment. On the question to agree to it N. H. no. Mas. no. C^t ay. N. J. no. P^a no. Del.no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. Art. I. sect. 4. "except as to the places of choosing Senators" was added nem: con: to the end of the first clause, in order to exempt the seats of Gov^t in the States from the power of Congress. Art. I. Sect. 5. "Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy." Col: Mason & M^r Gerry moved to insert after the word "parts," the words "of the proceedings of the Senate" so as to require publication of all the proceedings of the House of Representatives. It was intimated on the other side that cases might arise where secrecy might be necessary in both Houses. Measures preparatory to a declaration of war in which the House of Rep^s was to concur, were instanced. On the question, it passed in the negative. N. H. no. (Rh. I. abs.) Mas. no. Con: no,(N. Y. abs.) N. J. no. Pen. ay. Del. no. Mary. ay. Virg. no. N. C. ay. S. C. div^d. Geor. no. M^r Baldwin observed that the clause, Art. I. Sect. 6. declaring that no member of Cong^s "during the time for which he was elected, shall be appointed to any Civil office under the authority of the U. S. which shall have been created, or the emoluments whereof shall have been increased during such time," would not extend to offices _created by the Constitution_; and the salaries of which would be created, _not increased_ by Cong^s at their first session. The members of the first Cong^s consequently might evade the disqualification in this instance.--He was neither seconded nor opposed; nor did any thing further pass on the subject. Art. I. Sect. 8. The Congress "may by joint ballot appoint a Treasurer" M^r Rutlidge moved to strike out this power, and let the Treasurer be appointed in the same manner with other officers. M^r Gorham & M^r King said that the motion, if agreed to, would have a mischievous tendency. The people are accustomed & attached to that mode of appointing Treasurers, and the innovation will multiply objections to the system. M^r Gov^r Morris remarked that if the Treasurer be not appointed by the Legislature, he will be more narrowly watched, and more readily impeached. M^r Sherman. As the two Houses appropriate money, it is best for them to appoint the officer who is to keep it; and to appoint him as they make the appropriation, not by joint but several votes. Gen^l Pinkney. The Treasurer is appointed by joint ballot in South Carolina. The consequence is that bad appointments are made, and the Legislature will not listen to the faults of their own officer. On the motion to strike out N. H. ay. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay. Art I sect. 8. "but all such duties imposts & excises, shall be uniform throughout the U. S." were unanimously annexed to the power of taxation. To define & punish piracies and felonies on the high seas, and "punish" offences against the law of nations. M^r Gov^r Morris moved to strike out "punish" before the words "offences ag^{st} the law of nations," so as to let these be _definable_ as well as punishable, by virtue of the preceding member of the sentence. M^r Wilson hoped the alteration would by no means be made. To pretend to _define_ the law of nations which depended on the authority of all the civilized nations of the world, would have a look of arrogance, that would make us ridiculous. M^r Gov^r Morris. The word _define_ is proper when applied to _offences_ in this case; the law of nations being often too vague and deficient to be a rule. On the question to strike out the word "punish" it passed in the affirmative N. H. ay. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no. Doc^r Franklin moved[97] to add after the words "post roads" Art. I. Sect. 8. "a power to provide for cutting canals where deemed necessary." [97] This motion by D^r Franklin not stated in the printed Journal, as are some other motions.--Madison's Note. Wilson 2^{ded} the motion. M^r Sherman objected. The expence in such cases will fall on the U. States, and the benefit accrue to the places where the canals may be cut. M^r Wilson. Instead of being an expence to the U. S. they may be made a source of revenue. M^r Madison suggested an enlargement of the motion into a power "to grant charters of incorporation where the interest of the U. S. might require & the legislative provisions of individual States may be incompetent." His primary object was however to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for. The political obstacles being removed, a removal of the natural ones as far as possible ought to follow. M^r Randolph 2^{ded} the proposition. M^r King thought the power unnecessary. M^r Wilson. It is necessary to prevent _a State_ from obstructing the _general_ welfare. M^r King. The States will be prejudiced and divided into parties by it. In Philad^a & New York. It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies. M^r Wilson mentioned the importance of facilitating by canals, the communication with the Western settlements. As to Banks he did not think with M^r King that the power in that point of view would excite the prejudices & parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade. Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by M^r Wilson. The motion being so modified as to admit a distinct question specifying & limited to the case of canals, N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. ay. The other part fell of course, as including the power rejected. M^r Madison & M^r Pinkney then moved to insert in the list of powers vested in Congress a power--"to establish an University, in which no preferences or distinctions should be allowed on account of Religion." M^r Wilson supported the motion. M^r Gov^r Morris. It is not necessary. The exclusive power at the Seat of Government, will reach the object. On the question N. H. no. Mas. no. Con^t div^d. D^r Johnson ay. M^r Sherman no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no. Col: Mason, being sensible that an absolute prohibition of standing armies in time of peace might be unsafe, and wishing at the same time to insert something pointing out and guarding against the danger of them, moved to preface the clause (Art. 1 sect. 8) "To provide for organizing, arming and disciplining the militia &c." with the words "And that the liberties of the people may be better secured against the danger of standing armies in time of peace." M^r Randolph 2^{ded} the motion. M^r Madison was in favor of it. It did not restrain Congress from establishing a military force in time of peace if found necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution, as far as will consist with the essential power of the Gov^t on that head. M^r Gov^r Morris opposed the motion as setting a dishonorable mark of distinction on the military class of Citizens. M^r Pinkney & M^r Bedford concurred in the opposition. On the question N. H. no. Mas. no. C^t no. N. J. no. P^a no. Mar^d no. V^a ay. N. C. no. S. C. no. Geo. ay. Col: Mason moved to strike out from the clause (art. 1 sect 9.) "no bill of attainder nor any ex post facto law shall be passed" the words "nor any ex post facto law." He thought it not sufficiently clear that the prohibition meant by this phrase was limited to cases of a criminal nature, and no Legislature ever did or can altogether avoid them in Civil cases. M^r Gerry 2^{ded} the motion but with a view to extend the prohibition to "civil cases," which he thought ought to be done. On the question; all the States were--no. M^r Pinkney & M^r Gerry, moved to insert a declaration "that the liberty of the Press should be inviolably observed." M^r Sherman. It is unnecessary. The power of Congress does not extend to the Press. On the question, it passed in the negative N. H.[98] no. Mas. ay. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. no. [98] In the printed Journal N. Hampshire ay.--Madison's Note. Art 1. Sect. 9. "no capitation tax shall be laid, unless &c." M^r Read moved to insert after "capitation" the words, "or other direct tax." He was afraid that some liberty might otherwise be taken to saddle the States, with a readjustment by this rule, of past requisitions of Cong^s--and that his amendment by giving another cast to the meaning would take away the pretext. M^r Williamson 2^{ded} the motion which was agreed to. On motion of Col: Mason "or enumeration" inserted after, as explanatory of "Census" Con. & S. C. only, no.[99] [99] The words "Con. & S. C. only no" are in the handwriting of John C. Payne, Madison's brother-in-law. At the end of the clause "no tax or duty shall be laid on articles exported from any State" was added the following amendment conformably to a vote on the [31] of [August] viz--no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels bound to or from one State, be obliged to enter, clear or pay duties in another. Col. Mason moved a clause requiring "that an Account of the public expenditures should be annually published" M^r Gerry 2^{ded} the motion, M^r Gov^r Morris urged that this w^d be impossible in many cases. M^r King remarked, that the term expenditures went to every minute shilling. This would be impracticable. Cong^s might indeed make a monthly publication, but it would be in such general statements as would afford no satisfactory information. M^r Madison proposed to strike out "annually" from the motion & insert "from time to time," which would enjoin the duty of frequent publications and leave enough to the discretion of the Legislature. Require too much and the difficulty will beget a habit of doing nothing. The articles of Confederation require halfyearly publications on this subject. A punctual compliance being often impossible, the practice has ceased altogether. M^r Wilson 2^{ded}. & supported the motion. Many operations of finance cannot be properly published at certain times. M^r Pinkney was in favor of the motion. M^r Fitzimmons. It is absolutely impossible to publish expenditures in the full extent of the term. M^r Sherman thought "from time to time" the best rule to be given. "Annual" was struck out--& those words--inserted nem: con: The motion of Col: Mason so amended was then agreed to nem: con: and added after--"appropriations by law" as follows--"And a regular statement and account of the receipts & expenditures of all public money shall be published from time to time." The first clause of Art. 1 Sect. 10--was altered so as to read--"no State shall enter into any Treaty alliance or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold & silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility." M^r Gerry entered into observations inculcating the importance of public faith, and the propriety of the restraint put on the States from impairing the obligation of contracts, alledging that Congress ought to be laid under the like prohibitions, he made a motion to that effect. He was not 2^{ded}. Adjourned. SATURDAY SEP^R 15^{TH}. 1787. IN CONVENTION M^r Carrol reminded the House that no address to the people had yet been prepared. He considered it of great importance that such an one should accompany the Constitution. The people had been accustomed to such on great occasions, and would expect it on this. He moved that a Committee be appointed for the special purpose of preparing an address. M^r Rutlidge objected on account of the delay it would produce and the impropriety of addressing the people before it was known whether Congress would approve and support the plan. Congress if an address be thought proper can prepare as good a one. The members of the Convention can also explain the reasons of what has been done to their respective Constituents. M^r Sherman concurred in the opinion that an address was both unnecessary and improper. On the motion of M^r Carrol N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C.[100] abs^t. S. C.[100] no. Geo. no. [100] In the printed Journal N. Carolina no--S. Carol: omitted.--Madison's Note. M^r Langdon. Some gentlemen have been very uneasy that no increase of the number of Representatives has been admitted. It has in particular been thought that one more ought to be allowed to N. Carolina. He was of opinion that an additional one was due both to that State and to Rho: Island, & moved to reconsider for that purpose. M^r Sherman. When the Committee of eleven reported the apportionment--five Representatives were thought the proper share of N. Carolina. Subsequent information however seemed to entitle that State to another. On the motion to reconsider N. H. ay. Mas. no. C^t ay. N. J. no. Pen. div^d. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Langdon moved to add 1 member to each of the Representations of N. Carolina & Rho: Island.[101] [101] The MS. official Journal says: "It was moved and seconded to"----and here finally ends, and the minutes for September 15 are crossed out (Const. MSS.). They are given in the printed Journal, and a note says the journal for that day and Monday was completed from minutes furnished by Madison (p. 379). October 22, 1818, Adams wrote to Madison asking him to complete the Journal. He replied from Montpelier, November 2: "I have received your letter of 22 ult: and enclose such extracts from my notes relating to the two last days of the Constitution, as may fill in the chasm in the Journals, according to the mode in which the proceedings are recorded."--State Dept. MSS., Miscl. Letters. Later (June 18, 1819) Adams sent him lists of yeas and nays, and he replied (Montpelier, June 27, 1819): "I return the list of yeas & nays in the Convention, with the blanks filled in according to your request, as far as I could do it by tracing the order of the yeas & nays & their coincidency with those belonging to successive questions in my papers."--Mad. MSS. M^r King was ag^{st} any change whatever as opening the door for delays. There had been no official proof that the numbers of N. C. are greater than before estimated, and he never could sign the Constitution if Rho: Island is to be allowed two members that is one fourth of the number allowed to Massts., which will be known to be unjust. M^r Pinkney urged the propriety of increasing the number of Rep^s allotted to N. Carolina. M^r Bedford contended for an increase in favor of Rho: Island, and of Delaware also it passed in the negative. On the question for allowing two Rep^s to Rho: Island, it passed in the negative. N. H. ay. Mas. no. C^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. ay. On the question for allowing six to N. Carolina, it passed in the negative N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. Art 1. Sect. 10. (paragraph 2) "No State shall, without the consent of Congress lay imposts or duties on imports or exports; nor with such consent, but to the use of the Treasury of the U. States." In consequence of the proviso moved by Col: Mason; and agreed to on the 13 Sep^r, this part of the section was laid aside in favor of the following substitute viz: "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its Inspection laws; and the nett produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the U. S.; and all such laws shall be subject to the revision and controul of the Congress" On a motion to strike out the last part "and all such laws shall be subject to the revision and controul of the Congress" it passed in the negative. N. H. no. Mas. no. C^t no. N. J. no. P^a div^d. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. ay. The substitute was then agreed to; Virg^a alone being in the negative. The remainder of the paragraph being under consideration--viz--"nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another State, nor with any foreign power. Nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of delay, until Congress can be consulted." M^r M^cHenry & M^r Carrol moved that "no State shall be restrained from laying duties of tonnage for the purpose of clearing harbours and erecting lighthouses." Col. Mason in support of this explained and urged the situation of the Chesapeak which peculiarly required expences of this sort. M^r Gov^r Morris. The States are not restrained from laying tonnage as the Constitution now stands. The exception proposed will imply the contrary, and will put the States in a worse condition than the gentleman (Col. Mason) wishes. M^r Madison. Whether the States are now restrained from laying tonnage duties, depends on the extent of the power "to regulate commerce." These terms are vague, but seem to exclude this power of the States. They may certainly be restrained by Treaty. He observed that there were other objects for tonnage Duties as the support of seamen &c. He was more & more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority. M^r Sherman. The power of the U. States to regulate trade being supreme can controul interferences of the State regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction. M^r Langdon insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the States ought to have nothing to do with it. On motion "that no State shall lay any duty on tonnage without the consent of Congress." N. H. ay. Mas. ay. C^t div^d. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. ay. Geo. no. The remainder of the paragraph was then remoulded and passed as follows viz--"No State shall without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." Art II. sect. 1. (paragraph 6) "or the period for chusing another president arrive" were changed into "or a President shall be elected" conformably to a vote of the ---- of ----. M^r Rutlidge and Doc^r Franklin moved to annex to the end of paragraph 7. Sect. 1. Art II--"and he (the President) shall not receive, within that period, any other emolument from the U. S. or any of them." on which question N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo.--ay. Art: II. Sect. 2. "he shall have power to grant reprieves and pardons for offences against the U. S. &c." M^r Randolph moved to except "cases of treason." The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traitors may be his own instruments. Col: Mason supported the motion. M^r Gov^r Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature. M^r Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted. M^r King thought it would be inconsistent with the Constitutional separation of the Executive & Legislative powers to let the prerogative be exercised by the latter. A Legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachusetts, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in acts of Pardon. M^r Madison admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an association of the Senate as a Council of advice, with the President. M^r Randolph could not admit the Senate into a share of the power. The great danger to liberty lay in a combination between the President & that body. Col: Mason. The Senate has already too much power. There can be no danger of too much lenity in legislative pardons, as the Senate must concur, & the President moreover can require 2/3 of both Houses. On the motion of M^r Randolph N. H. no.--Mas. no. C^t div^d. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. ay. Art II. Sect. 2. (paragraph 2) To the end of this, M^r Govern^r Morris moved to annex "but the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, in the Courts of law, or in the heads of Departments." M^r Sherman 2^{ded} the motion. M^r Madison. It does not go far enough if it be necessary at all. Superior officers below Heads of Departments ought in some cases to have the appointment of the lesser offices. M^r Gov^r Morris. There is no necessity. Blank commissions can be sent-- On the motion N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d div^d. V^a no. N. C. ay. S. C. no. Geo. no. The motion being lost by an equal division of votes. It was urged that it be put a second time some such provision being too necessary to be omitted, and on a second question it was agreed to nem: con. Art. II. Sect. 1. The words "and not per capita" were struck out as superfluous and the words "by the Representatives" also--as improper, the choice of President being in another mode as well as eventually by the House of Rep^s. Art II. Sect. 2. After "officers of the U. S. whose appointments are not otherwise provided for," were added the words "and which shall be established by law." Art III. Sect. 2. parag: 3. M^r Pinkney & M^r Gerry moved to annex to the end, "And a trial by jury shall be preserved as usual in civil cases." M^r Gorham. The constitution of Juries is different in different States and the trial itself is _usual_ in different cases in different States. M^r King urged the same objections. Gen^l Pinkney also. He thought such a clause in the Constitution would be pregnant with embarrassments. The motion was disagreed to nem: con: Art. IV. Sect. 2. parag: 3. the term "legally" was struck out, and "under the laws thereof" inserted after the word "State" in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view. Art. IV. Sect 3. "New States may be admitted by the Congress into this Union: but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Cong^s." M^r Gerry moved to insert after "or parts of States" the words "or a State and part of a State" which was disagreed to by a large majority; it appearing to be supposed that the case was comprehended in the words of the clause as reported by the Committee. Art. IV. Sect. 4. After the word "Executive" were inserted the words "when the Legislature cannot be convened." Art. V. "The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year 1808 shall in any manner affect the 1 & 4 clauses in the 9. Section of article 1." M^r Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate. Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case. M^r Gov^r Morris & M^r Gerry moved to amend the article so as to require a Convention on application of 2/3 of the Sts. M^r Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in constitutional regulations ought to be as much as possible avoided. The motion of M^r Gov^r Morris & M^r Gerry was agreed to nem: con: (see the first part of the article as finally past). M^r Sherman moved to strike out of art. V. after "legislatures" the words "of three fourths" and so after the word "Conventions" leaving future Conventions to act in this matter, like the present Conventions according to circumstances. On this motion N. H. div^d. Mas. ay. C^t ay. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo--no. M^r Gerry moved to strike out the words "or by Conventions in three fourths thereof." On this motion N. H. no. Mas. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Sherman moved according to his idea above expressed to annex to the end of the article a further proviso "that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate." M^r Madison. Begin with these special provisos, and every State will insist on them, for their boundaries, exports &c. On the motion of M^r Sherman N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Sherman then moved to strike out art. V altogether. M^r Brearley 2^{ded} the motion, on which N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del div^d. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Gov^r Morris moved to annex a further proviso--"that no State, without its consent shall be deprived of its equal suffrage in the Senate." This motion being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question, saying no. Col: Mason expressing his discontent at the power given to Congress by a bare majority to pass navigation acts, which he said would not only enhance the freight, a consequence he did not so much regard--but would enable a few rich merchants in Philad^a N. York & Boston, to monopolize the Staples of the Southern States & reduce their value perhaps 50 Per C^t moved a further proviso that no law in the nature of a navigation act be passed before the year 1808, without the consent of 2/3 of each branch of the Legislature. On this motion N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay. M^r Randolph animadverting on the indefinite and dangerous power given by the Constitution to Congress, expressing the pain he felt at differing from the body of the Convention, on the close of the great & awful subject of their labours, and anxiously wishing for some accommodating expedient which would relieve him from his embarrassments, made a motion importing "that amendments to the plan might be offered by the State Conventions, which should be submitted to and finally decided on by another general Convention." Should this proposition be disregarded, it would he said be impossible for him to put his name to the instrument. Whether he should oppose it afterwards he would not then decide but he would not deprive himself of the freedom to do so in his own State, if that course should be prescribed by his final judgment. Col: Mason 2^{ded} & followed M^r Randolph in animadversions on the dangerous power and structure of the Government, concluding that it would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt, but one or other, he was sure. This Constitution had been formed without the knowledge or idea of the people. A second Convention will know more of the sense of the people, and be able to provide a system more consonant to it. It was improper to say to the people, take this or nothing. As the Constitution now stands, he could neither give it his support or vote in Virginia; and he could not sign here what he could not support there. With the expedient of another Convention as proposed, he could sign. M^r Pinkney. These declarations from members so respectable at the close of this important scene, give a peculiar solemnity to the present moment. He descanted on the consequences of calling forth the deliberations & amendments of the different States on the subject of Government at large. Nothing but confusion & contrariety could spring from the experiment. The States will never agree in their plans, and the Deputies to a second Convention coming together under the discordant impressions of their Constituents, will never agree. Conventions are serious things, and ought not to be repeated. He was not without objections as well as others to the plan. He objected to the contemptible weakness & dependence of the Executive. He objected to the power of a majority only of Cong^s over Commerce. But apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support. M^r Gerry stated the objections which determined him to withhold his name from the Constitution. 1. the duration and re-eligibility of the Senate. 2. the power of the House of Representatives to conceal their journals. 3. the power of Congress over the places of election. 4. the unlimited power of Congress over their own compensation. 5. Massachusetts has not a due share of Representatives allotted to her. 6. 3/5 of the Blacks are to be represented as if they were freemen. 7. Under the power over commerce, monopolies may be established. 8. The vice president being made head of the Senate. He could however he said get over all these, if the rights of the Citizens were not rendered insecure 1. by the general power of the Legislature to make what laws they may please to call necessary and proper. 2. raise armies and money without limit. 3. to establish a tribunal without juries, which will be a Star-chamber as to Civil cases. Under such a view of the Constitution, the best that could be done he conceived was to provide for a second general Convention. On the question on the proposition of M^r Randolph. All the States answered no. On the question to agree to the Constitution as amended. All the States ay. The Constitution was then ordered to be engrossed. and the House adjourned. MONDAY SEP^R 17. 1787. IN CONVENTION The engrossed Constitution being read. Doc^r Franklin rose with a speech in his hand, which he had reduced to writing for his own conveniency, and which M^r Wilson read in the words following. M^r President I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with nobody but myself, that is always in the right--_Il n'y a que moi qui a toujours raison_." In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administered. On the whole, Sir, I cannot help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.--He then moved that the Constitution be signed by the members and offered the following as a convenient form viz: "Done in Convention by the unanimous consent of _the States_ present the 17^{th} of Sep^r &c.--In witness whereof we have hereunto subscribed our names." This ambiguous form had been drawn up by M^r G. M. in order to gain the dissenting members, and put into the hands of Doc^r Franklin that it might have the better chance of success. M^r Gorham said if it was not too late he could wish, for the purpose of lessening objections to the Constitution, that the clause declaring "the number of Representatives shall not exceed one for every forty thousand" which had produced so much discussion, might be yet reconsidered, in order to strike out 40,000 & insert "thirty thousand." This would not he remarked establish that as an absolute rule, but only give Congress a greater latitude which could not be thought unreasonable. M^r King & M^r Carrol seconded & supported the ideas of M^r Gorham. When the President rose, for the purpose of putting the question, he said that although his situation had hitherto restrained him from offering his sentiments on questions depending in the House, and it might be thought, ought now to impose silence on him, yet he could not forbear expressing his wish that the alteration proposed might take place. It was much to be desired that the objections to the plan recommended might be made as few as possible. The smallness of the proportion of Representatives had been considered by many members of the Convention an insufficient security for the rights & interests of the people. He acknowledged that it had always appeared to himself among the exceptionable parts of the plan, and late as the present moment was for admitting amendments, he thought this of so much consequence that it would give much satisfaction to see it adopted.[102] [102] This was the only occasion on which the President entered at all into the discussions of the Convention.--Madison's Note. No opposition was made to the proposition of M^r Gorham and it was agreed to unanimously. On the question to agree to the Constitution enrolled in order to be signed. It was agreed to all the States answering ay. M^r Randolph then rose and with an allusion to the observations of Doc^r Franklin apologized for his refusing to sign the Constitution notwithstanding the vast majority & venerable names that would give sanction to its wisdom and its worth. He said however that he did not mean by this refusal to decide that he should oppose the Constitution without doors. He meant only to keep himself free to be governed by his duty as it should be prescribed by his future judgment. He refused to sign, because he thought the object of the convention would be frustrated by the alternative which it presented to the people. Nine States will fail to ratify the plan and confusion must ensue. With such a view of the subject he ought not, he could not, by pledging himself to support the plan, restrain himself from taking such steps as might appear to him most consistent with the public good. M^r Gov^r Morris said that he too had objections, but considering the present plan as the best that was to be attained, he should take it with all its faults. The majority had determined in its favor, and by that determination he should abide. The moment this plan goes forth all other considerations will be laid aside, and the great question will be, shall there be a national Government or not? and this must take place or a general anarchy will be the alternative. He remarked that the signing in the form proposed related only to the fact that the _States_ present were unanimous. M^r Williamson suggested that the signing should be confined to the letter accompanying the Constitution to Congress, which might perhaps do nearly as well, and would be found satisfactory to some members[103] who disliked the Constitution. For himself he did not think a better plan was to be expected and had no scruples against putting his name to it. [103] He alluded to M^r Blount for one.--Madison's Note. M^r Hamilton expressed his anxiety that every member should sign. A few characters of consequence, by opposing or even refusing to sign the Constitution, might do infinite mischief by kindling the latent sparks which lurk under an enthusiasm in favor of the Convention which may soon subside. No man's ideas were more remote from the plan than his own were known to be; but is it possible to deliberate between anarchy and Convulsion on one side, and the chance of good to be expected from the plan on the other. M^r Blount[104] said he had declared that he would not sign, so as to pledge himself in support of the plan, but he was relieved by the form proposed and would without committing himself attest the fact that the plan was the unanimous act of the States in Convention. [104] "Mr. Blount is a character strongly marked for integrity and honor. He has been twice a Member of Congress, and in that office discharged his duty with ability and faithfulness. He is no Speaker, nor does he possess any of those talents that make Men shine;--he is plain, honest, and sincere. Mr. Blount is about 36 years of age."--Pierce's Notes, _Amer. Hist. Rev._, iii., 329. Doc^r Franklin expressed his fears from what M^r Randolph had said, that he thought himself alluded to in the remarks offered this morning to the House. He declared that when drawing up that paper he did not know that any particular member would refuse to sign his name to the instrument, and hoped to be so understood. He possessed a high sense of obligation to M^r Randolph for having brought forward the plan in the first instance, and for the assistance he had given in its progress, and hoped that he would yet lay aside his objections, and by concurring with his brethren, prevent the great mischief which the refusal of his name might produce. M^r Randolph could not but regard the signing in the proposed form, as the same with signing the Constitution. The change of form therefore could make no difference with him. He repeated that in refusing to sign the Constitution he took a step which might be the most awful of his life, but it was dictated by his conscience, and it was not possible for him to hesitate, much less, to change. He repeated also his persuasion, that the holding out this plan with a final alternative to the people, of accepting or rejecting it in toto, would really produce the anarchy & civil convulsions which were apprehended from the refusal of individuals to sign it. M^r Gerry described the painful feelings of his situation, and the embarrassments under which he rose to offer any further observations on the subject w^{ch}. had been finally decided. Whilst the plan was depending, he had treated it with all the freedom he thought it deserved. He now felt himself bound as he was disposed to treat it with the respect due to the Act of the Convention. He hoped he should not violate that respect in declaring on this occasion his fears that a Civil war may result from the present crisis of the U.S. In Massachusetts, particularly he saw the danger of this calamitous event--In that State there are two parties, one devoted to Democracy, the worst he thought of all political evils, the other as violent in the opposite extreme. From the collision of these in opposing and resisting the Constitution, confusion was greatly to be feared. He had thought it necessary, for this & other reasons that the plan should have been proposed in a more mediating shape, in order to abate the heat and opposition of parties. As it had been passed by the Convention, he was persuaded it would have a contrary effect. He could not therefore by signing the Constitution pledge himself to abide by it at all events. The proposed form made no difference with him. But if it were not otherwise apparent, the refusals to sign should never be known from him. Alluding to the remarks of Doc^r Franklin, he could not he said but view them as levelled at himself and the other gentlemen who meant not to sign. Gen^l Pinkney. We are not likely to gain many converts by the ambiguity of the proposed form of signing. He thought it best to be candid and let the form speak the substance. If the meaning of the signers be left in doubt, his purpose would not be answered. He should sign the Constitution with a view to support it with all his influence, and wished to pledge himself accordingly. Doc^r Franklin. It is too soon to pledge ourselves before Congress and our Constituents shall have approved the plan. M^r Ingersol[105] did not consider the signing, either as a mere attestation of the fact, or as pledging the signers to support the Constitution at all events; but as a recommendation, of what, all things considered, was the most eligible. [105] "Mr. Ingersol is a very able Attorney and possesses a clear legal understanding. He is well educated in the Classic's, and is a Man of very extensive reading. Mr. Ingersol speaks well, and comprehends his subject fully. There is modesty in his character that keeps him back. He is about 36 years old."--Pierce's Notes, _Amer. Hist. Rev._, iii., 329. On the motion of Doc^r Franklin N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. div^d.[106] Geo. ay. [106] Gen^l Pinkney & M^r Butler disliked the equivocal form of the signing, and on that account voted in the negative.--Madison's Note. M^r King suggested that the Journals of the Convention should be either destroyed, or deposited in the custody of the President. He thought if suffered to be made public, a bad use would be made of them by those who would wish to prevent the adoption of the Constitution. M^r Wilson preferd the second expedient, he had at one time liked the first best; but as false suggestions may be propagated it should not be made impossible to contradict them. A question was then put on depositing the Journals and other papers of the Convention in the hands of the President, on which, N. H. ay. M^{tts} ay. C^t ay. N. J. ay. Pen^a ay. Del. ay. M^d no.[107] V^a ay. N. C. ay. S. C. ay. Geo. ay.[108] [107] This negative of Maryland was occasioned by the language of the instructions to the Deputies of that State, which required them to report to the State, the _proceedings_ of the Convention.--Madison's Note. [108] "Major Jackson presents his most respectful compliments to General Washington-- "He begs leave to request his signature to forty Diplomas intended for the Rhode Island Society of the Cincinnati. "Major Jackson, after burning all the loose scraps of paper which belong to the Convention, will this evening wait upon the General with the Journals and other papers which their vote directs to be delivered to His Excellency. "Monday evening" Endorsed in Washington's hand: "Maj^r W^m Jackson 17^{th} Sep. 1787."--Wash. MSS. The President having asked what the Convention meant should be done with the Journals &c. whether copies were to be allowed to the members if applied for. It was Resolved nem. con: "that he retain the Journal and other papers, subject to the order of Congress, if ever formed under the Constitution." The members then proceeded to sign the instrument. Whilst the last members were signing it Doct^r Franklin looking towards the President's Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun. The Constitution being signed by all the members except M^r Randolph, M^r Mason and M^r Gerry, who declined giving it the sanction of their names, the Convention dissolved itself by an Adjournment sine die[109]-- [109] The few alterations and corrections made in these debates which are not in my handwriting, were dictated by me and made in my presence by John C. Payne. James Madison.--Madison's Note. * * * * * [Following is a literal copy of the engrossed Constitution as signed. It is in four sheets, with an additional sheet containing the resolutions of transmissal. The note indented at the end is in the original precisely as reproduced here.] WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Article. I. Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section. 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section. 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States ^{is tried,} the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section. 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meetings shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section. 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for Limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Section. 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of ^{the} Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of ^{the} Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Article. II. Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Article. III. Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. Article. IV. Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section. 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any Claims of the United States, or of any particular State. Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. Article. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate. Article. VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. Article. VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. The Word, "the," being interlined done in Convention by the between the seventh and eighth Unanimous Consent of the Lines of the first Page, The Word States present the Seventeenth "Thirty" being partly written on an Day of September in the Year Erazure in the fifteenth Line of of our Lord one thousand seven the first Page, The Words "is hundred and Eighty seven and tried" being interlined between the of the Independence of the thirty second and thirty third United States of America the Lines of the first Page and the Twelfth In witness whereof We Word "the" being interlined between have hereunto subscribed our the forty third and forty fourth Names, Lines of the second Page. Attest WILLIAM JACKSON Secretary G^o WASHINGTON--Presid^t and deputy from Virginia New Hampshire {JOHN LANGDON } {NICHOLAS GILMAN} Massachusetts { NATHANIEL GORHAM { RUFUS KING Connecticut { W^M: SAM^L JOHNSON { ROGER SHERMAN New York ALEXANDER HAMILTON New Jersey { WIL: LIVINGSTON { DAVID BREARLEY { W^M PATERSON { JONA: DAYTON Pennsylvania { B FRANKLIN { THOMAS MIFFLIN { ROB^T MORRIS { GEO. CLYMER { THO^S FITZSIMONS { JARED INGERSOLL { JAMES WILSON { GOUV MORRIS Delaware { GEO: READ { GUNNING BEDFORD jun { JOHN DICKINSON { RICHARD BASSETT { JACO: BROOM Maryland { JAMES M^CHENRY { DAN OF S^T THO^S JENIFER { DAN^L CARROLL Virginia { JOHN BLAIR-- { JAMES MADISON Jr. North Carolina { W^M BLOUNT { RICH^D DOBBS SPAIGHT { HU WILLIAMSON South Carolina { J. RUTLEDGE { CHARLES COTESWORTH PINCKNEY { CHARLES PINCKNEY { PIERCE BUTLER Georgia { WILLIAM FEW { ABR BALDWIN [Illustration: First Page of the Constitution (reduced)] IN CONVENTION Monday September 17^{th}. 1787. Present The States of New Hampshire, Massachusetts, Connecticut, M^r Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia. Resolved, That the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled. Resolved, That it is the Opinion of this Convention, that as soon as the Conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President, and the Time and Place for commencing Proceedings under this Constitution. That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fixed for the Election of the President, and should transmit their Votes certified, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled, that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution. By the Unanimous Order of the Convention G^O: WASHINGTON Presid^t. W. JACKSON Secretary. INDEX A Accounts of expenditures. _See_ Expenditures of government. Acts, originating of. _See_ Legislature, national, acts of. Address to accompany constitution, moved, ii., 347; considered, 377. Adjournment of legislature. _See_ Legislature, national, power of. Age, of executive. _See_ Executive, national, age of. Of Representatives. _See_ Legislature, national, House of Representatives. Of Senators. _See_ Legislature, national, Senate. Allen, Paul, signs address from Rhode Island, i., 11, n. Amendments to constitution, provision for, debated, i., 79, 122, ii., 384; postponed, i., 79; debated, 122, 287; agreed to, 137, ii., 30; motion to reconsider clause, 339; moved that states agree to, 340. Appointment, power of. _See_ Executive, national, power of; Judiciary, national, supreme; Legislature, national. Senate. Appropriations, originating of, _see_ Legislature, national, money bills; accounts of, _see_ Expenditures of government. Aristocracy, fear of, expressed by Mason, i., 310; defended by G. Morris, 310, ii., 98; probability of, 159. Armies, power to raise and support. _See_ Legislature, national, power of. Arnold, Welcome, signs address from Rhode Island, i., 11, n. Arsenals, Forts, etc. _See_ Forts, Arsenals, etc. Articles of Confederation, amendments to, proposed by Dickinson, i., 166. B Baldwin, Abraham, Ga., attends convention, i., 114; favors representation in Senate by wealth of states, 271; Pierce's sketch of, 271, n.; on compromise committee on representation, 292; thinks foreigners should be excluded from government, ii., 145; thinks provisions on citizenship should not extend to those already citizens, 148; appointed on grand committee, 193; thinks slave trade not a national question, 222; on committee on navigation acts, 225; moves that duty on slaves be uniform, 251; thinks public lands should be guaranteed to states, 281; on committee of August 31, 292; thinks members of legislature should be ineligible to other offices, 296; approves plan of electing executive by electors, 302; moves to exclude from new offices members of first legislature, 371. Bankruptcy, uniform law of. _See_ Legislature, national, power of; House of Representatives. Barton, William, signs address from Rhode Island, i., 11, n. Bassett, Richard, Del., attends convention, i., 1; Pierce's sketch of, 1, n. Bedford, Gunning, Del., attends convention, i., 5; favors short term for executive, 54; Pierce's sketch of, 54, n.; opposes absolute veto in executive, 72; opposes negative of state laws by legislature, 105; threatens foreign alliance of small states, 283; on compromise committee on representation, 292; explains threat of foreign alliance, 300; moves that national legislature make laws when harmony would be interrupted by state legislation, 372; prefers appointment of judges by Senate, 386; opposes provision against standing army, ii., 374; favors increase in representation of Rhode Island and Delaware, 379. Bill of Rights, inclusion of, debated, ii., 364. Bills of attainder. _See_ Legislature, national, power of. Bills of credit, power to emit. _See_ Legislature, national, power of. Blair, John, Va., attends convention, i., 1; Pierce's sketch of, 1, n. Blount, William, N. C., attends convention, i., 189; announces he will sign constitution, ii., 394; Pierce's sketch of, 394, n. Bowen, Jabez, signs address from Rhode Island, i., 11, n. Brearley, David, N. J., attends convention, i., 1; favors equal vote of states in national legislature, 109; Pierce's sketch of, 109, n.; moves that New Hampshire delegates be sent for, 272; opposes election of executive by joint ballot, ii., 243; seconds motion to elect executive by states, 244; on committee of August 31, 292; reports from committee, 292, 296, 304; seconds motion against amendments, 386. Broome, Jacob, Del., attends convention, i., 1; favors nine years' term for Senators, 238; insists upon equal representation for New Jersey in Senate, 327; opposes adjournment on question of representation, 368; opposes seven years' term for executive, 379; Pierce's sketch of, ii., 8, n.; seconds motion to postpone clause fixing term of executive, 44; seconds motion to except army and navy from disqualification from legislature, 166; thinks legislature can fix their own compensation, 168; favors same compensation for both houses of legislature, 170; thinks national government should punish for treason, 206; seconds motion in favor of national negative of state laws, 236; moves reference of question of term of executive, 245. Brown, John, signs address from Rhode Island, i., 11, n. Brown, Nicholas, signs address from Rhode Island, i., 11, n. Butler, Pierce, S. C., attends convention, i., 2; moves secrecy of proceedings, 10; Pierce's sketch of, 11, n.; moves debate on national government, 33; wants explanation of personnel of Senate, 43; fears deprivation of state powers, 46; favors single executive, 66; opposes absolute negative in executive, 72; proposes power of suspending legislation for executive, 75; opposed to institution of inferior judiciary, 83, 388; opposes indefinite negative of state laws by legislature, 106; favors wealth as basis of representation, 115, 120, 307, 321; thinks Senators should have no compensation, 129; thinks Senate should have power to originate money bills, 132; moves vote on compensation of legislature, 213; favors ineligibility to all other offices of Representatives, 214; opposes ineligibility of Representatives to offices created during their term, 218; thinks candidates for office will not be wanting, 222; moves question of representation in Senate, 235; opposes ineligibility of Senators to state offices, 246; opposes report of compromise committee on representation, 298; moves increase in representation of South Carolina, 325; insists upon inclusion of blacks in representation, 331; thinks slave labor as productive as free labor, 331; favors representation by population, 341; demands security for slavery, 352; thinks powers of legislature loosely defined, 366; opposes frequent elections of executive, ii., 9; favors election of executive by electors chosen by state legislatures, 52; opposes re-eligibility of executive, 52; moves to refer question of executive to committee of detail, 56; favors fixing plan for national capital, 67; thinks question of suffrage should be left to states, 97; moves three years' inhabitancy for Representatives, 110; thinks money bills should originate in House, 115; favors long inhabitancy for Senators, 122; urges postponement of clause concerning eligibility of members of legislature to other offices, 166; favors state compensation for members of legislature, 167; opposes power to emit bills of credit, 181, 183; thinks President should have power to declare war, 188; moves that legislature have power to declare peace, 189; thinks militia should be under national control, 196; favors adjustment of taxation to representation, 212; opposes federal power over exports, 214, 224; moves discrimination in paying creditors, 238; moves reconsideration of question of discharging debts, 241; thinks creditors should stand where they are, 249; on committee of August 25, 254; moves that fugitive slaves and servants be surrendered, 267, 274; favors commercial regulations to be made by two-thirds vote, 271; thinks new states should not be made without consent of old states, 276; thinks nine states may ratify constitution, 285; on committee of August 31, 292; thinks election of executive by electors objectionable, 302; favors making treaties of peace without President, 330; thinks Congress must sanction state export duties, 366; dislikes form of signing, 396, n. C Canals, provision for, proposed. _See_ Legislature, national, power of. Capital, national. _See_ Seat of government. Capitation tax. _See_ Taxation, capitation. Captures. _See_ Legislature, national, power of. Carrington, Edward, to Jefferson, on progress of convention, i., 107, n.; to Madison, 130, n.; to Monroe, ii., 90, n.; to Madison, 142, n. Carroll, Daniel, Md., attends convention, i., 318; favors national power to suppress insurrection, 392; Pierce's sketch of, ii., 38, n.; doubts propriety of per capita voting in Senate, 38; favors election of executive by electors chosen by lot from national legislature, 47; thinks direct taxation should depend on census, 47; opposes disqualification from legislature of persons having unsettled government accounts, 63; thinks number for quorum cannot be fixed, 135; thinks right of expulsion should be with two-thirds of legislature, 136; moves Senators be permitted to enter dissent to measures, 136; fears New York will be capital, 140; moves five years' citizenship for Representatives, 148; explains provision as to money bills in Maryland, 157; favors national compensation for members of legislature, 168, 169; thinks greater checks to bad laws necessary, 174; thinks a quorum should be more than a majority, 177; thinks exports should not be taxed, 181; opposes taxation by congressional representation, 209; thinks prohibition of _ex post facto_ laws necessary, 228; moves election of executive by the people, 243, 245; moves provision to prevent favoring ports of entry, 252; on committee of August 25, 254; objects to requiring consent of states to dismemberment, 277; moves that right of U. S. to public lands be confirmed, 280; moves that land question go to Supreme Court, 281; moves to postpone question of ratification, 284, 286; thinks all the states must ratify, 286; thinks Maryland must ratify as required by Maryland law, 286; thinks vessels should enter and clear in their own states, 291; on committee of August 31, 292; proposes an address to the people, 377; moves states have power to lay tonnage taxes, 380; urges larger representation, 392. Census, taking of, debated, i., 327, 340; every fifteen years, vote on, 340; two years after meeting of legislature, 344; ordered within six years after meeting of legislature, 346; every ten years, 347; every twenty years, 346; first to be in three years, ii., 208. Charters, power to grant, proposed. _See_ Legislature, national, power of. Citizenship, of Representatives, _see_ Legislature, national, House of Representatives, Senate; uniformity of, in the several states, agreed to, ii., 266. Clymer, George, Pa., attends convention, i., 5; appointed on grand committee, ii., 193; thinks power to tax exports should exist for revenue only, 217; Pierce's sketch of, 217, n.; on committee on navigation acts, 225; disapproves slave-trade arrangement, 251; thinks states should regulate their own manufactures, 266; favors commercial regulations, 270; moves to postpone ratification question, 286; favors ratification by a majority of the people and the states, 287; objects to Senate's power, 315; thinks old Congress need not sanction constitution, 345. Commercial regulations. _See_ Navigation acts. Committee, grand, appointed, ii., 193. Committee of the whole, convention goes into, i., 32; reports, 134; last session, 165. Committee on detail, resolutions referred to, ii., 67; report of, 76; debated, 90. Committee on plan of compromise, appointed, i., 292; reports, 293. Committee on rules, appointed, i., 5; reports, 7. Committee on style and arrangement, appointed, ii., 338; report of, 347, 369; debated, 367, 368. Committee on sumptuary legislation, appointed, ii., 366. Compensation of executive. _See_ Executive, national, compensation of. Compensation of judiciary. _See_ Judiciary, national, compensation of. Compensation of legislature. _See_ Legislature, national, compensation of. Compromise on representation, debate on, i., 287; report of committee on, 294. Confederation, articles of. _See_ Articles of Confederation. Congress. _See_ Legislature, national. Constitution, engrossed, read, ii., 389; text of, 398. Continental Congress, continuance of, till constitution goes into effect, proposed, i., 79; agreed to, 137; debate on, 390. Contracts, impairment of, prohibited, ii., 377. Copyright law. _See_ Legislature, national, power of. Council, executive. _See_ Executive council. Council of revision of laws, debate on, i., 69; ii., 17. Counterfeiting, power to punish, debated, ii., 185. Courts. _See_ Judiciary. Credentials of delegates read, i., 4. D Davie, William Richardson, N. C., attends convention, i., 2; Pierce's sketch of, 65, n.; opposes unequal representation in Senate, 279; on committee on compromise on representation, 292; insists that blacks be included in basis of representation, 342; favors impeachability of executive, ii., 11; proposes eight years' term for executive, 43. Dayton, Jonathan, N. J., attends convention, i., 200; opposes compensation of Senators by state legislatures, 245; Pierce's sketch of, 245, n.; favors voting in House by states, 252; favors equal representation in Senate, 282; insists on equality of small states, 356; favors representation by free inhabitants, ii., 114; thinks a standing army necessary, 195; proposes mixed control of militia, 231, 232; thinks judiciary will decide controversies between states, 241; opposes election of executive by joint ballot, 243; moves election of executive by states, 244; on committee of August 25, 254; thinks tranquillity of states should be guaranteed, 282; moves ratification by ten states, 287; moves that treaties be made without two-thirds of Senate, 334; objects to state export duties, 365. Debt, national, report on, ii., 209; debate on, 210; proposition for settling, 210; provision for payment of, 226, 238; reconsideration of, proposed, 241; motion to make payment obligatory, debated, 249. _See_ Legislature, national, power of. Delaware, increase in representation of, moved, ii., 379. Detail, committee on. _See_ Committee on detail. Dickinson, John, Del., attends convention, i., 12; moves removability of executive by state legislatures, 62; Pierce's sketch of, 62, n.; favors separation of branches of government, 63; favors institution of inferior judiciary, 83; favors election of Representatives by people, 89; favors negative over laws by executive, 93; moves that Senators be elected by legislatures, 94; thinks Senate should resemble House of Lords, 95; thinks preservation of states necessary, 97; favors negative by legislature over state laws, 105; favors representation by wealth, 115; proposes postponement of Jersey plan, 151; proposes amendment of articles of confederation, 152; favors three years' term for Representatives, 207; favors election of executive by the people, ii., 55; opposes property qualification for legislature, 61; favors restriction of suffrage to freeholders, 97; proposes ---- years' residency for Representatives, 108; thinks provision as to money bills should stand, 154; proposes fixed payment for members of legislature every twelve years, 169; moves both branches of legislature receive the same pay, 170; thinks judiciary should not have power to set a law aside, 173; moves that rebellion against government be suppressed, 187; appointed on grand committee, 193; thinks great appointments should be made by legislature, 194; thinks treason should be defined, 204; thinks war against one state the same as against all, 207; moves that representation of large states be limited, 210; favors power over exports, 214; on committee on navigation acts, 225; thinks President should share in treaty-making power, 239; moves executive have power to appoint to future offices, 246; moves executive appoint officers not to be appointed by states, 247; moves to permit slave trade in states permitting it, 251; favors postponement of question of executive succession, 256; thinks legislature will not improperly ask removal of judges, 257; moves that judiciary have equity power, 260; explains meaning of _ex post facto_ laws, 268; thinks small states should not secure claims of large states, 276; moves that legislatures consent to formation of new states, 280; thinks tranquillity of states should be guaranteed, 282, 283; asks if Congress is to concur in constitution, 284; on committee of August 31, 292; thinks eventual election of President should be with whole legislature, 310; moves that vote of presidential electors be from all who are appointed, 312; favors an executive council, 332; objects to state export duties, 366; on committee on sumptuary legislation, 366; moves to strike out "direct taxes," 367. Duties on exports. _See_ Exports. Imports. _See_ Imports. E Election, of executive. _See_ Executive, national, election of. Of Representatives. _See_ Legislature, national, House of Representatives, election of. Of Senators. _See_ Legislature, national, Senate, election of. Electors. _See_ Executive, national, election of. Ellsworth, Oliver, Conn., attends convention, i., 5; Pierce's sketch of, 120, n.; opposes ratification by conventions, 189; favors one-year term for Representatives, 207; favors payment of Representatives by states, 209; favors payment of Senators by states, 245; favors election of Senators by legislatures, 234; favors equal state representation in Senate, 269, 275, 285; on committee on compromise on representation, 292; favors compromise on representation, 301; opposes increase in representation, 325; favors free inhabitants and three-fifths of slaves as basis of taxation, 343; favors representation by free inhabitants and three-fifths slaves, 344; opposes adjustment of taxation and representation after census, 349; insists upon state equality in Senate, 363; moves election of executive by electors appointed by legislatures, ii., 7; favors six years' term for executive, 9; moves increase in electors of New Hampshire and Georgia, 10; favors inclusion of judiciary in revisionary power, 18; favors appointment of judges by Senate with power negative of appointment by executive, 27; favors ratification of constitution by state legislatures, 31, 34; favors voting per capita in Senate, 37; favors re-eligibility of executive, 42; on committee to report constitution, 48; moves election of executive by legislature and re-election by electors named by state legislatures, 48; opposes election of executive by the people, 51; opposes disqualification of public debtors from legislature, 65; thinks time of meeting of legislature ought to be fixed, 93; thinks legislature ought to meet in winter, 95; thinks question of suffrage should be left to states, 96; thinks suffrage should be liberal, 97; thinks Representatives should reside in their states, 108; moves that Representatives be residents of their states for a year, 109; thinks ratio of Representatives to inhabitants may change, 112; thinks originating money bills in House unimportant, 116, 118; thinks state executives should fill vacancies in Senate, 117; opposes fourteen years' citizenship for Senators, 121; thinks property qualification for members of government should not be fixed, 130, 131; thinks number for quorum should not be small, 134; thinks no provision necessary for yeas and nays, 136; thinks provision for journal unnecessary, 138; favors ineligibility of members of legislature to other offices, 165; favors national compensation for members of legislature, 166; thinks members of legislature may fix their pay, 169; moves $5 per day as payment for legislature, 169; urges necessity of reaching a decision, 175; thinks exports should not be taxed, 179; opposes power to emit bills of credit, 182; moves to enlarge power over piracies, felonies, etc., 186; thinks executive should have power to suppress rebellion in a state, 186; defines power of making war and peace, 188; thinks state debts may be assumed by nation, 192; urges consideration of President's council, 193; thinks states should have partial control over militia, 195, 197; thinks power of taxation includes sumptuary power, 202; thinks treason sufficiently defined, 203, 205, 207; moves census in three years, 208; moves report on state debts lie on table, 210; thinks adjustment of debts necessary, 211; thinks taxation by representation unjust, 211; thinks states may tax exports, 213; thinks an embargo permissible, 215; thinks slave trade a question for the states, 218, 220; favors accepting constitution as it stands, 225; thinks prohibition of _ex post facto_ laws unnecessary, 227; thinks requirement of fulfilment of old government's engagements unnecessary, 229; favors national power to train militia, 230; proposes mixed control of militia, 231; opposes national negative of state laws, 237. Emancipation. _See_ Slavery. Embargo, power to lay, debated, ii., 214, 215; by states, debated, 264. Executive council, proposed, i., 68; debated, ii., 193, 331, 332. Executive, national, debate on, i., 49; provisions reconsidered, ii., 7; referred to committee on detail, 56; vote on, 59. Age, nativity, and residence of, agreed to, ii., 336. Compensation of, Franklin proposes no salary, i., 57, ii., 381; mode of payment, 16. Correspondence of, with states, debated, ii., 248. Election of, proposed by district electors, i., 55, 56; by national legislature for seven years, proposed, 57; mode of, reconsidered, 53, 101, 107, 108, ii., 44, 46, 47, 48, 52, 53; by state conventions, proposed, i., 109; by national legislature, 374, 378, 379, ii., 40, 42, 55, 242; by electors chosen by state legislatures, i., 377, ii., 8; ratio of electors considered, 10; electors not to be officials, 16; by electors, debated, 38, 39, 297, 301, 307, 310, 322; term of electors debated, 47; re-election of electors considered, 52; regulations as to age and residence debated, 226; by states, proposed, 244; by electors, defeated, 245; when to take place, proposed, 290; to be at seat of government, proposed, 317; how vote is to be counted, debated, 317; to fill vacancy, considered, 381; verbal amendment of clause, 383. Eligibility of, to re-election, debated, i., 67, 378, 383, ii., 1, 8, 40, 42. Exclusion from, of those indebted to government, considered, ii., 61. Foreign ambassadors to be received by, ii., 254. Impeachability of, agreed to, i., 65; method of, debated, 385, 386, ii., 11, 15, 16, 335, 337; moved to postpone question, 15; House to have power of, 116. Militia to be commanded by, when in active service, ii., 255. Native citizens only to be eligible, ii., 299. Negative of, on national legislation, debated, i., 54, 69, 74, 385, ii., 174, 175, 361; qualified, agreed to, i., 75, ii., 25; inclusion of judiciary in, proposed, i., 75; absolute, debated, ii., 12; ten days allowed for, 176; agreed to, 176; moved to extend to resolutions, 176. Oath of, prescribed, ii., 256. Power of, debated, i., 52, 53, 58, 91, 378, ii., 17, 46, 254, 299; to make appointments, i., 379, ii., 246, 328, 329, 334, 383; to revise legislation, 17, 25, 246; to pardon criminals, 254, 381; to make treaties, 327, 329; to demand opinions of heads of departments, 330; to convene either house of legislature, 338. Removability of, on request of state legislatures, debated, i., 62, 65; question postponed, ii., 256, 299; debated, 299. Single, proposed, i., 51, 65, 69; agreed to, 374, ii., 242; debate on, 41. Succession in, debated and postponed, ii., 256. Term of, debated, i., 54, 155, 379, ii., 9, 42, 58, 59, 80; seven years', proposed, i., 54, 378, 383, ii., 9, 316; during good behavior, proposed, i., 382; six years', proposed, ii., 9, 316; six years in twelve, proposed, 56. Expenditures of government, moved that an account of be published, ii., 376, 377. Expenses of convention, provision for, ii., 303, 306. Exports, tax on, debated, ii., 177, 213, 254; state power to tax, debated, 266, 364. _Ex post facto_ laws. _See_ Legislature, national, power of. Expulsion from legislature. _See_ Legislature, national, expulsion from. F Federal or national government, debate on, i., 32. Felonies. _See_ Piracies and felonies. Few, William, Ga., attends convention, i., 2; Pierce's sketch of, 2, n.; on committee of August 25, ii., 254. Fitzsimmons, Thomas, Pa., attends convention, i., 1; favors restriction of suffrage to freeholders, ii., 96; opposes power to tax exports, 216; on committee of August 25, 254; admits inconvenience to require vessels to enter and clear in their own state, 291; seconds motion to include House of Representatives in treaty-making power, 327; thinks old Congress need not sanction constitution, 343; favors incidental state export duties, 365; thinks publication expenditures impossible, 376. Forts, arsenals, etc., provision for acquisition of, ii., 306. Franklin, Benj., Pa., attends convention, i., 5; Pierce's sketch of, 49, n.; moves that executive receive no salary, 57; opposes negative in executive, 70; favors executive council, 71; opposes single executive, 74; suggests method for choosing judges, 77; appeals for harmony in convention, 115; favors proportional representation, 115; objects to liberal compensation for legislature, 126; favors no salary for Senators, 244; thinks voting in Senate not a separate question, 259; proposes prayers in convention, 260; favors compromise on representation, 280; on committee on compromise on representation, 292; thinks money bills should originate in House, 311; favors power to increase judges' salaries, 387; favors impeachability of executive, ii., 12, 14; thinks executive returning to private life no degradation, 68; favors general suffrage, 100; thinks compromise on representation should stand, 118; opposes long residence in the states for Senators, 122; thinks new citizens will not be elected to Senate, 125; opposes property qualification for officers of government, 130; thinks two witnesses necessary in treason cases, 206; favors executive council, 331; seconds motion for second convention, 347; on committee on sumptuary legislation, 366; moves legislature have power to cut canals, 372; moves to limit President's emoluments, 381; proposes plan for signing constitution, 389; disclaims personal reflections on non-signatories, 394; thinks members cannot pledge themselves, 396; remarks on signing, 397. Franklin, William Temple, nominated for secretary of convention, i., 4. G General-welfare clause. _See_ Legislature, national, power of. Georgia, increase in representation of, moved, i., 324. Gerry, Elbridge, Mass., attends convention, i., 12; doubts if convention can form national government, 34; Pierce's sketch of, 34, n.; opposes election of Representatives by the people, 40, 42, 84; favors an executive council, 51; opposes election of executive by national legislature, 56; opposes inclusion of judiciary in council of revision, 69, 92; favors single executive, 69; favors qualified negative on legislation by executive, 70; favors provision for amendments, 79; opposes ratification of constitution by the people, 80; favors election of Senators by state legislatures, 97, 99; moves reconsideration of question of choosing executive, 101; moves indefinite negative on state laws by national legislature, 103; moves election of executive by state executives, 107, ii., 49; favors representation based on free population, i., 120; opposes requiring oath to national government from state officers, 123; favors one-year term for Representatives, 124; proposes that Senate shall not originate money bills, 132; thinks maximum and minimum for quorum should be fixed, 134; favors ineligibility of Representatives to other offices, 220, 223; opposed to monarchy, 242; favors four or five years' term for Senators, 243; opposes equal state representation, 268; favors committee to compromise representation, 292; on committee to arrange compromise on representation, 292; offers report of committee of compromise on representation, 293; favors compromise on representation, 302; favors representation on basis of population and wealth, 305; thinks originating money bills in House a concession, 310; moves to postpone question of voting in Senate, 313; favors increase in representation, 326; thinks three-fifths of blacks sufficient proportion as basis of representation, 331; thinks taxation and representation cannot be arranged, 347; favors direct taxation according to representation, 347, 350; favors originating money bills in House, 356; favors compromise on representation in Senate, 357; opposes adjournment on question of representation, 368; opposes re-eligibility of executive, ii., 7, 42, 43; favors election of executive by electors appointed by state legislatures, 8; moves ratio for electors for executive, 10; favors impeachability of executive, 13; moves that electors for executive be not officials, 16; opposes inclusion of judiciary in revisionary power, 19, 24; favors appointment of judges by Senate, 28; moves that officers take oath of allegiance, 30; thinks constitution should be ratified by legislatures, 32; moves appointment of committee to report constitution, 39; moves election of executive by legislatures, 42; suggests fifteen years' term for executive, 43; proposes referring term of executive to committee, 44, 46; opposes election of executive by electors chosen by lot from national legislatures, 47; favors election of executive for not more than six years in twelve, 53; opposes popular election of executive, 54; favors exclusion from office of those indebted to government, 61, 64; favors exclusion from legislature of pensioners, 64; favors prohibiting state and national capital at same place, 66; thinks quorum should be fixed, 134; moves to permit Senate to publish journal, 137, 138; thinks executive should not influence place of meeting of legislature, 140; thinks none but natives should be Representatives, 143; declares his state opposes members of legislature holding any other offices, 161; points out objections to both national and state legislatures, 202; thinks exports should not be taxed, 179; moves to include post roads in power of legislature, 181; thinks rebellion should be suppressed on state application, 186; moves legislature have power to declare war, 188; favors giving legislature power to make peace, 189; thinks letters of marque should be considered, 191; thinks executive should not interfere in legislation, 194; favors provision against large army in time of peace, 194, 195, 198; moves committee be instructed to report on qualifications for executive and impeachment of judges, 202; opposes power to make sumptuary laws, 202; moves that taxation be by congressional representation, 208, 211; thinks states should pay their debts, 209; opposes power to tax exports, 216; thinks slave trade should not be sanctioned, 222; moves prohibition of _ex post facto_ laws and bills of attainder, 227; thinks government should have power to fulfil engagements of old government, 229; thinks national government should not control militia, 230; thinks liberty will not be as safe in national as state government, 232; warns convention against depriving states of their powers, 233; thinks actual debts should be paid, 248; seconds motion to remove judges on application of legislature, 257; moves to postpone question of ratification, 289; thinks members of legislature should not hold other offices, 295; objects to appropriations for army for more than one year, 305; objects to power to buy forts, etc., 305; moves to reconsider four articles, 306; objects to powers given President, 307; objects to less than majority electing President, 310; suggests eventual election of President by six Senators and seven Representatives, 310; seconds motion to permit Senate to choose President from three candidates, 311; moves that electors be not office-holders, 312; moves change of clause for re-electing President, 312; moves that states vote for President in legislature with at least three members, 325; withdraws motion, 325; objects to Vice-President being President of Senate, 326; thinks President will not be responsible for his appointments, 328; thinks treaties of peace must be carefully guarded, 330; thinks it dangerous to put too much power in Senate, 333; moves two-thirds vote of Senate for treaties, 333; seconds motion for majority for treaties of whole number of Senators, 334; proposes that notice of treaties to Senators be required, 334; moves no appointments be allowed except as authorized by law, 335; thinks impeachability of President should be extended, 335; moves legislature have sole right to create offices, 338; moves reconsideration of provision for amendments, 339; seconds motion for states' consent to amendments, 341; moves sanction of old Congress to constitution be asked, 342; thinks ratification should be made difficult, 344, 346; seconds a plan of ratification, 345; favors two-thirds vote to override President's negative, 362; urges clause requiring jury trials, 363; moves bill of rights be prepared, 364; moves that all proceedings of House be published, 370; approves prohibition of _ex post facto_ laws, 375; moves liberty of press be guaranteed, 375; seconds motion for annual publication of accounts, 376; moves prohibition of violation of contracts, 377; moves jury trial be preserved in civil cases, 384; moves verbal amendment relative to admission of states, 384; moves convention be required to make amendments, 385; favors a second constitutional convention, 388; defends action in not signing constitution, 395; refuses to sign, 398. Gilman, Nicholas, N. H., attends convention, ii., 29; Pierce's sketch of, 29, n. Gorham, Nathaniel, Mass., attends convention, i., 5; elected chairman of committee of the whole, 32; favors national payment of Representatives, 210; Pierce's sketch of, 210, n.; opposed to ineligibility of Representatives to other offices, 214; favors compromise on representation, 232; opposes readjustment of land cession, 233; favors four years' term for Senators, 236; moves six years' term and rotation for Senators, 237; thinks small states equally interested with large states in union, 262; favors representation by population, 305; on committee to arrange representation, 307; defends report on representation, 319; thinks standard of representation should be fixed, 334; favors population as basis of representation, 339; opposes defining legislature's powers, 366; favors appointment of judges by Senate, 384; favors appointment of judges by the people, 385; favors appointment of judges by executive, 386; moves appointment of judges by executive with consent of Senate, 387; favors institution of inferior judicial tribunals, 389; favors power to suppress insurrections, 391; opposes inclusion of judiciary in revisionary power, ii., 18, 24; thinks oath of allegiance no bar to amendments to constitution, 30; opposed to ratification of constitution by legislatures, 33; favors two Senators from each state, 37; on committee to report constitution, 48; favors prohibition of national capital at state capital, 66; thinks constitution should fix time of meeting of legislature, 93; favors voting by non-freeholders, 106; thinks the new government will not last, 112; thinks Senate should not originate money bills, 115; thinks mode of electing Representatives should not be left to state legislatures, 126; thinks less than a majority may be a quorum of legislature, 132; thinks yeas and nays need not be required, 136; thinks provision concerning citizenship need not be retroactive, 146; thinks Senate should be paid more than House, 170; insists that money bills originate in House, 171; urges necessity for action, 211; opposes power to emit bills of credit, 181, 182; moves appointment of treasurer by joint ballot of legislature, 183; favors national support of army, 194; thinks adjustment of debts may be left to national legislature, 210; thinks union only of commercial advantage, 225; suggests difficulties of ratifying treaties by legislature, 239; thinks treaties should be negotiated in this country, 241; doubts if judiciary can impartially decide controversies between states, 242; favors election of executive by joint ballot of legislature, 242; seconds motion to extend period of slave trade, 250; thinks duty on slaves may discourage importation, 252; thinks precaution against discrimination in ports of entry unnecessary, 253; on committee of August 25, 254; thinks prohibition of paper money dangerous, 262; favors article providing for validity of state acts, 267; on committee on interstate acts, 268; thinks New England's motive for union dependent on commercial arrangements, 273; favors convention for ratification, 287; thinks vessels should not be obliged to enter and clear in their own states, 291; thinks members of legislature may be eligible to other offices, 295; thinks majority of Senate may elect President, 318; thinks separate provision for treaties of peace unnecessary, 330; thinks treaties need not require two-thirds of Senate, 334; opposes conditional ratification, 343; thinks jury question need not be included, 363; objects to state export duties, 365; thinks legislature should choose treasurer, 371; thinks provision as to jury trials unnecessary, 384; urges additional representation, 392. Grand committee. _See_ Committee, grand. Grayson, William, to Madison, i., 5, n.; to Monroe, 32, n. H Habeas corpus, necessity for preserving right of, debated, ii., 261. Hall, Levi, signs address from Rhode Island, i., 11, n. Halsey, Thomas Lloyd, signs address from Rhode Island, i., 11, n. Hamilton, Alexander, N. Y., attends convention, i., 1; nominates William Jackson for secretary of the convention, 4; Pierce's sketch of, 4, n.; on committee on rules, 4; moves representation by free inhabitants, 37; favors absolute negative of executive on legislation, 70; moves proportional voting in Senate, 121; presents his plan of government, 152; explains views on powers of the states, 185, 189; opposes election of Representatives by state legislatures, 205; favors three years' term for Representatives, 209; opposes fixing compensation for Representatives, 211; opposes ineligibility of Representatives to other offices, 215, 223; favors centralized government, 241; opposes prayers in convention, 260; writes to Washington about public sentiment, 293, n.; thinks citizenship and inhabitancy alone necessary for Representatives, iv., 144; thinks President may be elected by a plurality of electors, 315; appointed on committee on style and arrangement, 338; favors increase in representation, 339; favors easily made amendments, 340, 341; thinks old Congress should sanction constitution, 342; thinks constitution will be effective if ratified by nine states, 343; moves a plan for ratification, 344; withdraws it, 346; favors two-thirds vote to override President's negative, 361; urges members to sign constitution, 394. Hamilton plan, presented, i., 152; provisions of, 162; text of, 164, n. House of Representatives. _See_ Legislature, national, House of Representatives. Houston, William, Ga., attends convention, i., 49; moves increase in representation of Georgia, 325; opposes continuance of existing state constitutions, 391; favors additional representation of electors for New Hampshire and Georgia, ii., 10; moves consideration of appointment of executive by electors, 39; Pierce's sketch of, 39, n.; moves election of executive by national legislature, 40. Houstoun, William Churchill, N.J., attends convention, i., 1. I Impeachment, of executive. _See_ Executive, national, impeachability of; Legislature, national, Senate. Of judiciary. _See_ Judiciary, national, impeachment of. Of national officers, provision for, struck out, i., 389; to be suspended during trial, ii., 270. Trials of, debated, i., 384, 385, ii., 259, 260, 297, 338. Imports, power of states to tax, debated, ii., 264, 330; duties on, uniformity of, agreed to, 291, 372. Indians, power to legislate for, proposed, ii., 226. Ingersoll, Jared, Pa., attends convention, i., 5; considers signing to be recommending constitution, ii., 396; Pierce's sketch of, 396, n. Insurrections, power to suppress. _See_ Republican government, guaranty of. J Jackson, William, nominated for secretary of convention, i., 3; elected, 4. Jay, John, writes Washington against foreigners, ii., 48, n. Jefferson, Thomas, Monroe to, ii., 56, n.; Madison to, 126, n., 320, n. Jenckes, John, signs address from Rhode Island, i., 2, n. Jenifer, Daniel, of St. Thomas, Md., attends convention, i., 55; favors three years' term for Representatives, 124; Pierce's sketch of, 124, n.; favors ineligibility of Representatives to other offices, 223; moves postponement of question of voting in Senate, 225; favors requirement that vessels must enter and clear in their own states, 295. Jersey plan, the, submitted, i., 138; text of, 139; vote on, 185. Jews, letter of, i., 323, n. Johnson, William Samuel, Conn., attends convention, i., 55; suggests compromise between Virginia and Jersey plans, 200; Pierce's sketch of, 200, n.; favors elections to Senate by state legislatures, 234; favors representation by states in Senate, 261; favors inclusion of blacks in basis of representation, 342; thinks treason should be defined, ii., 204; thinks there can be no treason against a state, 205; on committee on navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks double control of treaties difficult, 239; thinks judiciary will decide controversies between states, 241; thinks obligations of old government binding on new, 249; suggests judiciary have power over equity cases, 256; moves extension of judicial power to cases arising under the constitution, 259; thinks acts of one state valid in courts of another state, 267; on committee on interstate acts, 268; thinks states cannot be dismembered, 276; moves admission of states hereafter formed, 278; thinks legislature may declare effect of state acts in states, 293; appointed on committee on style and arrangement, 338; submits report, 347; favors provision for sumptuary legislation, 366; on committee on sumptuary legislation, 366; offers further report of committee on style and arrangement, 368. Jones, Joseph, writes to Madison, ii., 366, n. Journal of legislature's proceedings. _See_ Legislature, national, journal of, House of Representatives, Senate. Journals of convention, disposition of, ii., 396, 397. Judiciary, national, supreme, agreed to, i., 75; consideration of, postponed, 130; debated, 384. Appointment to, debated, i., 76, 130, 136, 384, ii., 25; by legislature, vote on, i., 78; by Senate, agreed to, 132; by executive, vote on, 386, ii., 29; by executive with consent of Senate, debate on, i., 385; exclusion from, of those indebted to government, ii., 61, 235. Compensation of, fixed, agreed to, i., 375; power to increase, vote on, 387; debated, ii., 258. Impeachment of, trial by Senate proposed, ii., 227. Impeachment, power of, struck out, i., 388; debated, ii., 260. Inferior tribunals, debate on instituting, i., 81, 83, 84, 387, 388, ii., 184; power of legislature to refer cases to, struck out, 260. Jurisdiction of, debated, i., 129, 130, 136, 388, ii., 227; over controversies between states, debated, 241; to cases in equity proposed, 256; over controversies in which United States is a party, debated, 259; to cases arising under the constitution, debated, 259; appellate, debated, 259, 260; to be directed by legislature, proposed, 260; extension of, to land grants proposed, 261; to land claims, 281, 282; to impeachment trials proposed, 335, 336. Negative of, inclusion with executive proposed, i., 69, 75, 91, 93; over state laws, debated, 374; debated, ii., 174, 256. Revisionary power of, debated, i., 69, ii., 17, 175. State, power of, over national laws, debate on, 372; will be bound by national laws, 374. Tenure of, i., 76, 385, ii., 256. Jury trial, right of, provided for, ii., 261; in civil cases debated, 363; motion to preserve, 367. K King, Rufus, Mass., attends convention, i., 1; objects to report of committee on rules, 5; Pierce's sketch of, 5, n.; opposes representation by quotas of contributions, 36, 115; notes of proceedings of convention, 39, n.; opposes election of Senators by state legislatures, 44; opposes inclusion of judiciary in council of revision, 69; favors ratification of constitution by conventions, 81; moves question of proportional representation, 115; thinks Senate should have power to originate money bills, 133; opposes sovereignty of the states, 186, 285; insists upon election of Representatives by the people, 206; favors national compensation for Representatives, 211; opposes ineligibility of Representatives to other offices, 214, 219; thinks New Hampshire deputies will attend, 272; favors proportional representation in Senate, 281, 357; thinks representation cannot be permanently fixed, 360; on committee on question of representation, 307; thinks slaves should count in representation, 322; brings in report of committee on representation, 323; thinks representation of the south too large, 323; defends report on representation, 323; opposes inclusion of three-fifths of blacks in representation, 338; opposes representation by population, 345; opposes ineligibility of executive to re-election, ii., 5, 42; opposes short term for executive, 9; opposes impeachability of executive, 13, 15; favors ratification of constitution by legislatures, 35; moves voting in Senate per capita, 37; favors election of executive by state legislatures, 42; proposes term of twenty years for executive, 43; opposes election of executive by electors chosen by lot from legislature, 47; opposes freehold qualification for electors, 61; thinks legislature need not meet annually, 93; thinks representation should exclude slaves, 110; opposes leaving time and mode of election of Representatives to state legislatures, 128; thinks less than a majority should be a quorum of legislature, 133; thinks lowest number for a quorum may be fixed, 134, 135; thinks legislature should not have power to change place of meeting, 139; thinks state debts should be assumed by nation, 192, 193; thinks state lands ought to be given up, 193; appointed on grand committee, 193; thinks states may punish treason under a different name, 205; thinks national government should punish for treason, 206; thinks treason against a state same as against nation, 207; thinks slaves should be taxed, 223; on committee on navigation acts, 225; explains provisions as to militia, 230; admits duty on slaves part of compromise agreement, 251; moves to prohibit states from violating private contracts, 263; moves to prohibit states from taxing exports, 266; thinks states should regulate their own manufactures, 265; thinks all the states must ratify constitution, 285; moves that only states ratifying be operated on by constitution, 285; thinks constitution must be ratified by conventions, 286; thinks state constitution no bar to ratification, 287; on committee of August 31, 292; moves ineligibility of members of legislature to offices created during their term, 295, 296; moves to obtain consent of state legislatures to purchases of lands for national purposes, 306; thinks eventual election of President will be with Senate, 311; moves that electors be not office-holders, 312; favors change of clause relative to re-election of President, 313; moves increase of number necessary to elect President, 319; thinks Senate may share in appointments, 328; objects to participation of two-thirds of Senate in treaties, 329; opposes special provision for treaties of peace, 332; moves special provision for treaties affecting national rights, 332; thinks old Congress should consider constitution, 336; on committee of style and arrangement, 338; thinks old Congress need not sanction constitution, 345; thinks President ought not to be suspended if impeached, 370; thinks legislature should choose treasurer, 371; thinks power to grant charters unnecessary, 373; thinks publication of public expenditures impossible, 376; opposes change in representation, 378; thinks executive may pardon for treason, 382; thinks guaranty of jury trials not necessary, 384; urges additional representation, 392; proposes journals of convention be disposed of, 396. Knox, General Henry, writes to Washington on prospects of convention, ii., 158, n. L Land cession, question of, i., 232. Lands, public. _See_ Legislature, national, power of. Langdon, John, N. H., attends convention, ii., 29; opposes disqualification from legislature of persons having unsettled accounts, 64; Pierce's sketch of, 64, n.; opposes prohibition against placing national capital at state capital, 66; favors national compensation of legislature, 167; opposes power to emit bills of credit, 183; favors suppression of rebellion without state's consent, 187; appointed on grand committee, 193; thinks Representatives must be trusted, 195; thinks national control of militia necessary, 196; opposes taxation by congressional representation, 208; asks only fair representation for New Hampshire, 212; objects to state power to tax exports, 213, 214; opposes leaving slave trade to states, 223; moves to commit question of navigation acts, 225; on committee on navigation acts, 225; thinks state and national governments need not be jealous, 231; favors national power of negative on state laws, 237; thinks executive should be elected by joint ballot of legislature, 243; thinks creditors of government should not be disturbed, 248; admits duty on slaves is part of compromise agreement, 251; on committee of August 25, 254; doubts if new states should be admitted on an equality with old, 275; thinks new states may be created, 276; thinks Vermont should be brought into the Union, 276; thinks vessels should not be made to enter and clear in their state, 291; objects to export duties by states, 365; moves increase in representation of North Carolina and Rhode Island, 378; thinks commercial regulations should be national, 381. Lansing, John, N. Y., attends convention, i., 55; Pierce's sketch of, 138, n.; supports Jersey plan, 143; opposes Virginia plan, 194; opposes legislature of two branches, 190; favors voting in House by states, 252; leaves convention, 298, n. Legislature, national, acts of, may originate in both houses, i., 248, ii., 170; enacting style, 170. Compensation of members, considered, i., 125, 209, 244, 245; to be fixed, 126; and eligibility to re-election, debated, 130; to be ascertained by members, 212; by state legislatures, 213; vote on, 217; agreed to, 336; debated, ii., 166, 169. Constitution of, considered, ii., 8; agreed to, 96. Disqualification of debtors from, debated, ii., 63, 65, 66; of pensioners from, 65; of persons having unsettled accounts with, 65; of members from other offices, 158, 294, 297, 371. Elections to, by popular vote, debated, i., 53; mode of, debated, 81, 134; eligibility to re-election, debated, 127; eligibility of state officers to, 127. Expulsion from, debated, ii., 135, 136. Journal of proceedings, debate on, ii., 136, 137, 370. Money bills in, originating of, debated, i., 309, 312, ii., 149, 153, 157, 210, 212. Negative of, on state laws, considered, i., 47, 101, 107, 372, 374; on acts of executive, vote on, ii., 95; debated, 361; verbal amendment offered, 367. Place of meeting, debated, ii., 139. Power of, debated, i., 45, 135, 366, ii., 177; coercion on delinquent states, i., 47; to legislate where states not competent, i., 47, 371, 372; over state police, 370, 371; over state judiciary, 374, 375; members of, in debate, ii., 135; expulsion of members of, ii., 135; to compel attendance of members, ii., 135; to judge of elections of members, ii., 135; to adjourn, 138; limits of, debated, 172, 173; to regulate captures, debated, 184; over Indians, debated, 226; over general welfare, proposed, 226; to pass _ex post facto_laws and bills of attainder, prohibited, 227, 375; to fulfil engagements of old Congress, debated, 229, 237; over militia, debated, 230, 235; to enforce treaties, debated, 235; negative on state laws, debated, 236; to pass tax laws, debated, 241, 371; to pay public debts, debated, 247, 297; to regulate ports of entry, 252; to refer appointments to state legislatures, 254; to pay debts with anything but coin, debated, 262; report of committee of eleven taken up, 269; over public lands, proposed, 280, 282; to make national bankruptcy law, debated, 293; to judge privileges of members, 304; to grant letters of marque and reprisal, 304; to govern seat of government, 305; to grant copyrights, 305; to create offices, proposed, 338; to appoint treasurer, debated, 371; to punish piracies, etc., debated, 372; to make canals, proposed, 373; to grant charters, proposed, 373; to establish a university, proposed, 374; to be limited in providing for standing army, 375. Property qualifications for members of, debated, ii., 59, 63, 128, 132, 147. Qualifications for members of, debated, i., 42, ii., 131. Quorum in, debated, ii., 132, 135, 177. Representation in, debated, i., 36, 109, 114, 120, 134, 232, 302, 327, 331, 338, 341, 342, ii., 110, 114; compromise proposed, i., 114; enumeration of blacks and whites, debated, 258, 338, 340, 344, 346, 347, 350; question postponed, 318; referred to committee, 322; report of committee, 322; motion to increase, debated, 325; census for, debated, 328, 338, 340, 341; taxation as basis of, debated, 342, 347, 348, 371; moved that, of large states be limited, 378; increase of, debated, ii., 318, 323, 393. Rules to be regulated by each house, ii., 170. Term of members of, debated, i., 126. Time of meeting, debated, ii., 93, 94, 95. Two branches of, agreed to, i., 39, 134; debate on, 190, 199, 204. House of Representatives, mode of election to, debated, i., 39, 40, 42, 84, 91, 204, 224; classification of states to determine representation in, proposed, 106; term of members, debated, 124, 126; age for members, debated, 125, 213, 214; elections to, by state legislatures, proposed, 206, 247; three years' term in, proposed, 207, 209; eligibility of members to other offices debated, 214, 217, 218, 223, 224, ii., 292; committee report on representation in, i., 318, 319; constitution of, debated, ii., 96, 301; who may vote for members of, debated, 106; seven years' citizenship for members of, proposed, 107, 131, 132; qualifications for members of, debated, 107; clause relative to, agreed to, 110; money bills to originate in, debate on, 115, 305, 337; power of impeachment of, agreed to, 116; time and mode of election to, debate on, 126, 128; power of, over elections in states, debated, 128; citizenship and residence for members, debated, 144, 145; four years' citizenship for members of, proposed, 145; nine years' citizenship for members of, proposed, 145; citizenship requirements not to apply to those already citizens, 145, 148; five years' citizenship for members of, proposed, 148; clause for citizenship and age of members agreed to, 148; representation by direct taxation, debate on, 151; power to make bankruptcy laws, proposed, 292; power of, to make treaties, proposed, 327; increase in representation in, proposed, 339; moved to strike out apportionment by "direct taxes," 367; proposed that all journals of, be printed, 371. Senate, mode of election to, debated, i., 43, 233, ii., 116; to be a check on democracy, i., 44; election to, by state legislatures, debated, i., 44, 94, 101, 236; elections to, by the people, debated, 100; mode of voting in, debated, 121, 234, 248, 309, 313, 347; age for members of, debated, 127, 236; term of members of, debated, 128, 130, 236, 237, 243; compensation of members of, debated, 130, 244, 246, 247; originating money bills in, debated, 132, 134, 355; representation in, debated, 235, 236, 356, 364, 367, 368, 369, ii., 37, 304; property qualification for members of, debated, i., 246; eligibility of members of, to state offices, considered, 246; eligibility of members of, to any offices, considered, 297; voting in, by states, debated, 314; citizenship for members of, debated, ii., 124, 125; age and citizenship for members of, debated, 126, 148; moved that members of, be permitted to enter dissent to measures, 136; moved that journal of, be published, 136; choosing officers of, agreed to, 180; power of appointment by, 235, 238; treaty-making power of, debated, 238, 240; power of, to appoint ambassadors, etc., considered, 240; power of, in controversies between states, considered, 241; power to try impeachments, proposed, 298; power of, objected to, 315; to vote on President, 318; power of, in treaty making, debated, 327, 329; in appointments, 328; quorum of, debated, 335; power of, in impeachment of President, debated, 335, 336; power of, to amend money bills, 337; to be under oath in impeachment trials, 338. Letters of marque, power to issue, debated, ii., 191. Liberty of the press, guaranty of, proposed, ii., 375. Livingston, William, N. J., attends convention, i., 96; appointed on grand committee, ii., 193; Pierce's sketch of, 209, n.; delivers report on state debts and militia, 209; on committee on navigation acts, 225; submits report on slave importation and navigation acts, 240; on committee on sumptuary legislation, 366. M Madison, James, Va., attends convention, i., 2; moves question of representation in legislature, 36; Pierce's sketch of, 36, n.; favors proportional representation, 36, 38, 253; favors election to House by popular vote, 41, 86; opposes district elections to Senate, 44; opposes defining powers of national legislature, 47; opposes use of force against recalcitrant states, 47; moves consideration of powers of executive, 52; opposes removability of executive on motion of state legislatures, 63; favors qualified negative of executive on legislation, 71; favors inclusion of judiciary with executive in negative on legislation, 75, 91; opposes appointment of judges by legislature, 77, 131; favors ratification of constitution by popular vote, 80, ii., 36; favors creation of inferior judicial tribunals, i., 83; opposes elections to Senate by state legislatures, 99; favors a small Senate elected by the people, 96; favors negative by national legislature of state laws, 102, 106, 373; favors three years' term for Representatives, 124; favors national compensation of members of national legislature, 125, 212; favors seven years' term for Senators, 128; moves to define jurisdiction of judiciary, 130; thinks Senate should have power to originate money bills, 133; opposes Jersey plan, 167; thinks national government in danger from state governments, 202; opposes annual elections of Representatives, 208; favors compensation of Representatives by fixed standard, 211; favors ineligibility of Representatives to other offices, 218; favors partial ineligibility of Representatives to other offices, 221; moves debate on mode of voting in Senate, 235; sets forth objects of Senate, 238; opposes compensation of Senators by state legislatures, 345; opposes equal state representation, 264, 276, 357, 363; would preserve state rights, 282; opposes compromise committee on representation in Senate, 292, 296; thinks question of representation vital, 315; suggests representation by free population in House and by free and slaves in Senate, 321; moves increase in representation of all states, 325; thinks basis of representation should be fixed, 335; favors census at least every fifteen years, 340; favors adjustment of taxation to representation, 348; favors independence of executive, 380; thinks tendency is to give executive too little power, 382; favors appointment of judges by executive and one-third of Senate, 385; moves appointment of judges by executive and two-thirds of Senate, 387; objects to power to increase judges' salaries, 388; favors continuance of old Congress to prevent interregnum, 390; favors national guaranty against domestic violence, 391; favors election of executive by the people, ii., 6; favors varying ratio for electors to choose executive, 10; favors impeachability of executive, 12; seconds motion to include judiciary in revisionary power, 18, 22; moves appointment of judges by executive and Senate, 26; is willing to allow a majority of Senate to reject appointment of judges, 28; speaks on mode of election of executive, 49; thinks each voter may vote for two persons for executive, 54; thinks persons indebted to government should be excluded from legislature, 60; moves that property qualification be not confined to landed property, 62; opposes mutual negative of each branch of legislature over acts of the other, 92; suggests that time of meeting of legislature be not fixed in constitution, 92, 93; favors fixing time of meeting of legislature provisionally, 94; favors changing time of meeting of legislature from December to May, 95; favors power of suffrage by freeholders, 99; views on suffrage, 100, n.; favors requiring Representatives to be inhabitants of their states, 107; opposes proposition that Representatives be required to reside seven years in their states, 108; objects to fixed ratio of Representatives to inhabitants, 111; moves representation of not more than 1 to 40,000 inhabitants, 136; opposed to originating money bills in House, 116; moves that vacancies in Senate must happen by refusals, resignations, etc., 117; thinks provision as to money bills valueless to large states, 118; opposes fourteen years' citizenship as necessary for Senators, 121; opposes leaving time and mode of electing Representatives wholly to state legislatures, 126; writes to Jefferson on progress of the convention, 126, n.; thinks property qualification for members of government should be fixed in constitution, 130, 131; moves that expulsion from legislature be by two-thirds vote, 135; moves legislature have power to compel attendance, 135; moves that Senate shall publish its legislative journal, 137; insists upon central location for capital, 139; thinks legislature should not have power to change place of meeting, 138; writes to his father, 142, n.; thinks citizenship and inhabitancy alone necessary for Representatives, 144; thinks government responsible for what states have done, 146; thinks Senate may decrease money bills, 152; thinks constitution should regulate compensation of legislature, 167; moves that laws be revised by executive and judiciary, 172; thinks power to tax exports desirable, 176; opposes power to emit bills of credit, 181; thinks punishment of piracies, etc., ought not to be fixed by legislature, 184; moves that legislature define piracies, etc., 185; moves that rebellion to be suppressed be against government, 187; moves to give legislature power to declare war, 188; submits power over public lands, Indians, seat of government, charters, copyrights, university, forts, 189; favors national control of militia, 197; moves power to create offices in legislature, 203; thinks treason should be broadly defined, 203, 204; thinks treason may be against nation and a state, 205; thinks treason should not be twice punishable, 207; thinks present representation temporary, 211; favors power to tax exports, 215; favors taxation of exports by two-thirds legislature, 217; on committee on navigation acts, 226; thinks new government should have power to fulfil engagements of old government, 229; explains provisions as to militia, 230; favors national control of militia, 232; proposes states appoint militia officers under rank of general, 233; thinks disunion the greatest danger, 234; moves to commit question of negative of state laws, 236; moves to include President in treaty-making power, 238; suggests inconvenience of legal ratification of treaties, 238; suggests varying participation of legislature in different treaties, 240; thinks larger states should have larger vote in election of executive, 244; moves extension of appointing power of executive, 246; opposes slave-trade extension, 250; opposes admitting property in men in constitution, 252; moves that treaties be supreme law, 252; thinks president of Senate should not be in executive succession, 256; moves amendment to oath of executive, 256; favors fixed salaries for judges, 258; proposes salaries of judges be not changed for three years, 258; moves judiciary have jurisdiction over cases in which U. S. is a party, 259; thinks judicial power should not extend to all cases under constitution, 259; moves verbal change in judiciary clause, 260; thinks states should not have power to interfere in private contracts, 263; thinks retrospective laws are prohibited, 263; moves states be forbidden to pass embargoes, 264; moves to forbid states to lay imposts, 264, 265; objects to imposts by states, 266; favors committing clause on state acts, 267; thinks commercial regulations not injurious to south, 272; thinks western states entitled to an equality with others, 274; opposes guaranty of public lands, 281; thinks constitution may go into operation without a majority in favor, 284; moves ratification by seven states and thirty-three Representatives, 285; thinks ratification conventions necessary, 286; thinks it inconvenient if vessels must enter and clear at their own ports, 291; on committee of August 31, 292; offers amendment strengthening interstate validity of state acts, 293; fears election of President will be thrown on Senate, 300; doubts if legislature should judge of privileges of its members, 304; thinks legislature should not participate in electing President, 309; proposes that election of President may be by one-third of whole number of electors, 310; moves that electors not voting be not counted, 311; moves that two-thirds Senate be present when voting for President, 318; shows President may be elected by two states, 319; moves that election of President by legislature when Vice-president also dies be temporary, 323; seconds motion that no state vote for President in legislature by less than three Representatives, 325; thinks some cure required to prevent minority in legislature electing President, 325; proposes treaties of peace be by majority of Senate, 330; proposes two-thirds Senate make treaties of peace without President, 330; favors executive council, 332; thinks treaties have been too easily made in past, 334; moves quorum of Senate be two-thirds, 406; thinks impeachment of President should not be on vague grounds, 335; moves supreme court try President, 335; seconds motion to increase representation, 339; thinks clause relative to amendments should be reconsidered, 340, 341; favors three-quarter vote to override President's negative, 363; favors state export duties, 365; thinks supreme court can negative state laws, 365; moves verbal amendment to clause relative to negative of bills, 368; moves words "by lot" be struck out for classifying Senators, 369; thinks President ought not to be suspended when impeached, 370; favors national charters where states are incompetent, 372; moves power to establish university, 374; favors limiting standing army, 374; moves public accounts be published from time to time, 376; writes to J. Q. Adams, 378, n.; favors national control of commercial regulations, 380; thinks Senate may participate in pardons for treason, 382; thinks superior officers may make appointments, 383; thinks legislature may propose amendments, 385; opposes special provisos in constitution, 386. Madison, Rev. James, of William and Mary, writes to James Madison on prospects of convention, ii., 75, n. Manufactures, encouragement of, by imposts, debate on. ii., 264, 265; regulation of, debated, 265. Marque and reprisal, letters of, power to grant, proposed, iv., 366. Martin, Alexander, N. C., attends convention, i., 2; insists upon equal power of states, 188; favors elections of Representatives regulated by state legislatures, 204; favors ineligibility of Representatives to other offices, 218; Pierce's sketch of, 218, n.; on compromise committee on representation, 292; moves increase in representation of North Carolina, 325; opposes fixing national capital at same place with a state capital, ii., 66; seconds motion for commercial regulations, 269. Martin, Luther, Md., attends convention, i., 107; opposes oath from state officers to national government, 123; Pierce's sketch of, 189; opposes legislature of two branches, 195; wishes to preserve state governments, 248, 250; insists on state sovereignty, 268, 287; favors two confederacies if states cannot have equal vote in Senate, 356; opposes national negative on state laws, 373; moves that national laws be binding on state judiciary, 374; favors election of executive by electors chosen by state legislatures, 378; moves to consider question of re-eligibility of executive, 383; favors appointment of judges by Senate, 384; opposes creation of inferior judicial tribunals, 384; opposes power in national government to suppress rebellion in states, 391; moves ineligibility of executive to re-election, 8, 42; opposes inclusion of judiciary in revisionary power, 21; opposes voting in Senate per capita, 38; favors disqualification from legislature of debtors to government, 64; moves eleven years' term for executive, 43; favors state compensation of Senate, 169; asks definition of "duties" and "imposts," 176; opposes power to subdue rebellion in a state without its consent, 186; favors provision against large army in time of peace, 195; moves treason be punishable on confession, 208; proposes direct taxation by quotas from states, 212; moves that states be permitted to tax migration of slaves, 218; on committee on navigation acts, 225; favors state control of militia, 232; moves clause to prevent discrimination in ports of entry, 252; moves to restrict executive power of pardoning, 255; withdraws motion, 255; opposes requiring large states to consent to forming new states, 275; opposes admission of new states by two-thirds vote, 275; favors committing motion to require consent of states to dismemberment, 277; thinks new states should be formed without consent of old states, 279; moves that land claims be examined by supreme court, 282; moves guaranty of domestic tranquillity on state executive's application, 283; insists upon ratification by state legislatures, 289; thinks the people will not vote for constitution, 289. Mason, George, Va., attends convention, i., 2; objects to report of committee on rules, 6; Pierce's sketch of, 6, n.; thinks government should operate on individuals, 34; favors seven years' term for executive, 54; favors election of executive by the people, 55; opposes subordinating executive to legislature, 63; opposes single executive, 72; favors election of Representatives by the people, 86, 205; favors separation of purse from sword, 93; favors election of Senators by state legislatures, 100; favors provision for amendments to constitution, 122; favors national compensation of Representatives, 126; favors two branches of legislature, 192; favors biennial elections of Representatives, 208; moves that Representatives be at least twenty-five years of age, 213; favors ineligibility of Representatives to other offices, 215, 222; opposes ineligibility of Representatives to other offices, 218; favors representation in Senate by states, 235; favors property qualification for Senate, 246; on compromise committee on representation, 292; supports report of compromise committee on representation, 302; moves to refer question of voting in Senate to committee, 308; thinks money bills should originate in House, 309, ii., 115, 118; favors an increase in representation, i., 326; favors representation based on population, 329; thinks slaves should have proportion in representation, 332; thinks legislature ought not to fix representation, 334; thinks constitution ought to fix representation, 338; thinks taxation should be according to representation, 344; opposed to direct taxation proportioned to number of Representatives, 349; opposes election of executive by the people, 377; opposes election of executive to serve during good behavior, 381; opposes appointment of judges by executive, 384, ii., 28; favors institution of inferior judicial tribunals, i., 389; favors guaranty of republican government to the states, 391; favors impeachability of executive, ii., 11; favors inclusion of judiciary in revisionary power, 19, 23; thinks constitution should be ratified by the people, 31; opposes three Senators from each State, 38; favors election by legislature of executive for not more than six years in twelve, 52; moves seven years' term and ineligibility for executive, 59; proposes property qualification for legislature, 59; moves to exclude from legislature debtors to United States, 59; moves that national capital be not at a state capital, 66; withdraws the motion, 67; doubts propriety of mutual negative of each branch of legislature on the other, 91, 92; thinks time of meeting of legislature should not be fixed by constitution, 94; thinks suffrage question should be left to the states, 97; favors free general suffrage, 98; thinks seven years' citizenship should be required of Representatives, 107; moves that Representatives be required to be inhabitants of their states for one year, 109; favors postponing question of voting in Senate, 118; favors postponing question of originating money bills, 120; thinks aliens should not be in legislature, 121; thinks quorum in legislature should be a majority, 133; approves expulsion from legislature by two-thirds vote, 135; thinks yeas and nays should be required, 136; thinks publication of journal of legislature necessary, 138; thinks government not bound by state laws on naturalization, 149; thinks first money bills should originate in House, 149; moves to allow members of legislature to hold any office, 159; thinks Representatives should be independent of state legislatures, 168; thinks revenue bills should originate in House, 170; thinks Senate may alienate territory, 171; moves that no tax be laid on exports, 179; favors power to emit bills of credit, 181, 183; favors appointment of treasurer by legislature, 184; thinks punishment may be fixed in cases of piracy, etc., 184; opposes giving power of war to executive, 188; thinks general government should regulate militia, 190; thinks funds may be diverted in time of war, 191; appointed on grand committee, 193; favors partial national control of militia, 195, 196; favors power to make sumptuary laws, 202; thinks treason may be against a state, 205; thinks treason should be defined, 208; calls up amendment as to money bills, 211; thinks states should retain power over exports, 216; denounces slavery and slave trade, 219; asks how legislature can negative state laws, 231; objects to compelling settlement of old debts, 347; opposes naming slave-importing states, 250; thinks tax on importation of men necessary, 252; on committee of August 25, 254; moves amendment to executive's oath, 256; thinks judges' salaries should be fixed, 258; thinks states may interfere in private contracts, 263; thinks states may lay embargoes, 264; thinks states may wish to encourage industries by imposts, 265; thinks two-thirds vote necessary for commercial regulations, 271; thinks western people should be treated with equality, 274; thinks nine states may ratify constitution, 288; declares he will not sign constitution, 289; approves amendment relative to interstate validity of state acts, 293; thinks members of legislature should not hold other offices, 296; thinks President will usually be chosen by Senate, 301; thinks election of President by electors objectionable, 308; thinks President may be elected by minority, 309; moves that Senate choose President from three highest candidates, 311; thinks system of electors autocratic, 312; prefers eventual election of President by House of Representatives, 318; approves increasing number for quorum to elect President, 319; thinks Vice-President will encroach on Senate's rights, 326; favors an executive council, 331; moves to extend reasons for impeaching President, 335; moves to postpone motion for second convention, 347; thinks two-thirds vote may override President's negative, 362; thinks bill of rights necessary, 364; moves states may levy export duties, 364; moves clause for sumptuary laws, 366; on committee on sumptuary legislation, 366; favors state tax on exports, 367; moves publication of all proceedings of House, 370; favors power to cut canals, 373; opposed to standing armies, 374; moves to strike out prohibition of _ex post facto_ laws, 375; moves verbal amendment to capitation tax clause, 375; moves annual publication of expenditures, 376; thinks states may lay tonnage dues, 380; thinks President should not have power to pardon for treason, 382; thinks legislature should have pardoning power for treason, 382; disapproves provision for amendments, 385; objects to navigation acts by majority, 387; announces he cannot sign constitution, 387; refuses to sign, 398. McClurg, James, Va., attends convention, i., 2; moves that term of executive be for good behavior, 379; insists upon necessity for independence of executive, 382; Pierce's sketch of, ii., 16, n.; suggests ascertaining how executive is to act, 16; writes to Madison, 75, n., 91, n., 236, n., 340. n. McHenry, James, Md., attends convention, i., 5; Pierce's sketch of, ii., 167, n.; appointed on grand committee, 193; thinks direct taxation should be by quotas from states, 213; thinks embargo power embraced in war power, 215; moves prohibition of _ex post facto_ laws or bills of attainder, 227; proposes plan for choosing ports of entry, 253; moves judges receive fixed salaries, 258; thinks Maryland must ratify according to her law, 287; thinks vessels will take officers as security of entry dues, 291; moves President have power to convene either house of legislature, 338; moves states may lay tonnage dues, 380. Mercer, John Francis, Md., attends convention, ii., 75; opposes election of Representatives by the people, 105; opposes whole plan of constitution, 106; thinks the people ought to be guided in their voting, 107; suggests that candidates for Representatives be nominated by state legislatures, 107; opposes requirement of seven years' residence of Representatives in their states, 108, 109; thinks Senate should have power to originate money bills, 115; thinks less than a majority should be quorum of legislature, 132; seconds motion to fix quorum at few, 134; thinks Senate should have only legislative power, 137; thinks two houses will not agree on place of meeting, 140; thinks provisions as to citizenship should not apply to those now citizens, 145; thinks government bound by state laws on naturalization, 148; thinks aristocracies will arise, 160; fears good men will not serve in legislature, 165; thinks Senate ought not to make treaties, 171; thinks judiciary should not be included in revisionary power, 172; opposes taxing exports, 182; declares himself friendly to paper money, 182; favors appointment of treasurer by executive, 184; favors defining of piracies, felonies, etc., 185; opposes power to subdue rebellion without request of state legislature, 186. Mifflin, Thomas, Pa., attends convention, i., 5; seconds motion that acceptance of other office shall vacate seat in legislature, ii., 159; Pierce's sketch of, 159, n. Militia, power of regulating, debated, ii., 191, 195; report on, command of, debated, 255. _See_ Legislature, national, power of. Money bills, originating of. _See_ Legislature, national, money bills, House of Representatives, Senate. Monroe, James, to Jefferson, on prospects of the convention, ii., 56. n. Morris, Gouverneur, Pa., attends convention, i., 1; offers address from citizens of Rhode Island, 8; Pierce's sketch of, 8, n.; objects to committee on minutes, 13; moves question of federal or national government, 32; explains difference between federal and national government, 34; favors compromise committee on question of representation, 287; favors election of Senators for life, 287; opposes report of compromise committee on representation, 298; thinks representation should be according to wealth, 303, 319; thinks representation should not be definitely fixed, 304, 334; on committee on representation question, 307; favors originating money bills in both houses, 309, 310; opposes equal representation of small states, 316; submits report on representation in House, 318; favors referring question of representation to committee, 320; moves consideration of question of fixing representation, 320; favors property and population as basis of representation, 324; thinks southern states sufficiently represented, 324; objects to requiring legislature to take census, 328; fears preponderance of western states, 328; opposes inclusion of slaves in basis of representation, 332, 340, 350; moves that taxation be according to representation, 341, 342, 348; thinks legislature should adjust basis of representation, 343; moves reconsideration of question of representation in Senate, 370; opposes taxation by quotas, 371; opposes forbidding national government to interfere with state police, 371; favors power in legislature where harmony would be disturbed by state legislation, 372; opposes negative of state laws by legislature, 372, 374; thinks judiciary will have power to set aside laws, 374; favors election of executive by the people, 375, 376; opposes ineligibility of executive, 379; favors election of executive during good behavior, 379; disclaims friendliness to monarchy, 382; favors appointment of judges by executive, 384; thinks impeachment trials should not be before the judges, 385; favors appointment of judges by executive with consent of Senate, 387; favors power to increase judges' salaries, 387, 389; favors institution of inferior judicial tribunals, 389; opposes continuance of old Congress, 390; opposes guaranteeing existing laws to the states, 390; favors a vigorous executive, ii., 1; favors re-eligibility of executive, 3, 58; favors short term for executive, 9; thinks executive ought not to be impeachable, 11; admits executive ought to be impeachable in some cases, 12, 15; moves that electors for executive be not officials, 15; thinks revisionary power requires more than the executive, 20; thinks judiciary and executive may exercise revisionary power jointly, 24; favors appointment of judges by executive, 27; favors ratification of constitution by the people, 35; moves that voting in Senate be per capita, 37; moves ratification of constitution by a general convention, 37; moves that there be three Senators from each state, 37; opposes election of executive by members of national legislature chosen by lot, 44; opposes election of executive by national legislature, 45; opposes apportionment of direct taxation by representation, 47; favors election of executive by the people, 53; thinks each voter for executive may vote for two persons, 54; opposes property qualification for members of legislature, 60; thinks debtors of government need not be excluded from legislature, 60, 65; seconds motion to strike out "landed" property as requirement in executive, 63; opposes prohibiting national capital at state capital, 66; moves to restrict mutual negative of each branch of legislature on the other to legislative acts, 91; thinks treaties are not laws, 92; moves to strike out provision for time of meeting of legislature, 93; moves to change time of meeting of legislature from December to May, 94; favors absolute negative in executive on legislature, 95; moves restriction of suffrage to freeholders, 96; thinks suffrage should be fixed by legislature, 96; thinks general suffrage will produce aristocracy, 98; favors seven years' citizenship for representatives, 127; opposes requirement that Representatives be residents of their states, 108; moves that representation be by free population, 112; opposes slavery and the slave trade, 112; thinks Senate should have right to originate money bills, 115, 152; agrees that vacancies in Senate must be by refusals, resignations, etc., 117; favors equal vote in Senate, 119; moves fourteen years' citizenship for Senators, 120; opposes admission of aliens into government, 123; moves that state legislatures fix time and mode of electing Representatives, 126; opposes leaving time and mode of electing Representatives exclusively to state legislatures, 128; moves to strike out property qualification, 131; moves to fix quorum at few, 133; thinks any member may call for yeas and nays, 135; thinks majority may expel from legislature, 135; thinks citizenship requirements ought not to apply to those already citizens, 145, 147; thinks members of legislature may hold some other offices, 162, 166; thinks members of legislature may serve in army and navy, 166; favors national compensation of legislature, 167; thinks revenue bills need not be confined to House, 171; thinks some check on legislative acts necessary, 173; moves that executive power of negative extend to resolutions, 176; thinks exports may be taxed, 178, 179; opposes power to emit bills of credit, 181; thinks legislature should punish counterfeiting, 184; moves that legislature punish piracies, etc., 185; thinks legislature should designate piracies, etc., 186; thinks legislature should have power to subdue rebellions, 186; opposes inclusion of executive in power to subdue rebellions in states, 186; thinks power to subdue rebellions necessary, 187; submits propositions for committee of the whole, 200; opposes power to make sumptuary laws, 202; thinks treason should be defined, 203, 204; moves British statute for treason, 205; thinks treason should not be twice punishable, 207; thinks debts should be adjusted with taxation, 210; favors power to tax exports, 214; moves slave-trade question be committed, 224; thinks prohibition of _ex post facto_ laws unnecessary, 227; favors prohibiting bills of attainder, 227; moves new government discharge engagements of old government, 229; moves that Senate shall not have power of appointment, 235; moves that power to enforce treaties be not specified, 285; moves clause giving power over militia, 235; thinks national appointment of state executives should be committed, 237; doubts if treaties should be referred to Senate, 238; suggests that treaties will be negotiated in this country, 239; opposes election of executive by legislature, 244; moves election of executive by electors, 245; moves executive be required to make recommendations to legislature, 246; objects to state power to appoint federal officers, 247; thinks debts of old government should be paid by new government, 249; moves that slave-importing states be named, 250; withdraws motion, 251; thinks freemen may be taxed, 252; seconds motion to make treaties supreme law, 252; moves that executive have power to correspond with states, 254; moves chief justice succeed as executive, 255; objects to removability of judges upon legislature's application, 257; moves judicial power extend to cases in which U. S. is party, 259; asks what is appellate power of judiciary, 259; moves verbal change in judiciary clause, 259; opposes power to suspend habeas corpus except in emergency, 261; opposed to forbidding states to interfere in private contracts, 263; thinks prohibiting embargoes by states unnecessary, 264; thinks states should not tax exports, 266; favors commercial regulations, 270; moves interstate validity of acts of states, 268; opposes admission of western states on an equality, 275; does not wish power to pass to western states, 275; proposes method of admitting new states, 275; opposes admission of new states by two-thirds vote, 275; thinks states must consent to division, 277; thinks question of new states is one of jurisdiction rather than limits, 279; moves that legislature control public lands, 282; thinks supreme court has jurisdiction in land cases, 282; thinks legislatures may call convention to amend constitution, 283; approves motion prohibiting religious test for office, 283; thinks contiguous states must ratify, 284; thinks states may choose method of ratification, 286; moves Congress be not required to approve constitution, 288; favors a second convention, 351; on committee of August 31, 292; moves amendment on the subject of interstate validity of state acts, 293; favors national bankruptcy laws, 294; thinks members of legislature may hold other offices, 295; fears election of President will devolve on Senate, 301; defends system of electors, 301, 314; thinks election of President should be free from cabal, 302; prefers eventual election of President by Senate to whole legislature, 303; thinks each House should be judge of privileges of its own members, 304; moves postponement of clause relative to revenue bills, 306; seconds motion to require state legislature's consent to national purchase of forts, etc., 306; does not think Senate will elect President, 309; favors separate provision for re-election of President, 313, 318; thinks Vice-President will not be in accord with President, 326; thinks President must concur in treaties of peace, 330; thinks executive council unnecessary, 331; opposes special provision for treaties of peace, 333; thinks whole legislature should participate in treaties of peace, 334; objects to two-thirds of Senate being a quorum, 335; favors impeachment for maladministration, 335; thinks Senate should try impeachments, 336, 337; on committee on style and arrangement, 338; favors three-quarters vote to override President's negative, 361; points out danger from unstable laws, 362; favors state power to collect export duties, 365; explains words "direct taxes" in report, 367; approves verbal amendment on negative of bills, 368; moves suspension from office of persons impeached, 370; thinks legislature may appoint treasurer, 371; moves offences against law of nations be definable, 372; thinks government can establish university, 374; opposes provision against standing army, 374; thinks publication of expenditures impossible, 376; thinks states may lay tonnage dues, 380; opposes power of legislature to pardon for treason, 382; moves executive and others have power of appointment, 383; moves amendments by general convention, 385; moves states have equal suffrage in Senate, 386; announces he will sign constitution, 393. Morris, Robert, Pa., attends convention, i., 1; Pierce's sketch of, 2, n.; moves Washington's election as president of convention, 3; thinks Senate should be chosen by the people, 95; favors life term for Senators, 236. N National government of three branches agreed to, i., 35. "National" in Virginia plan, word struck out, i., 190. Naturalized citizens, rights of debated, ii., 145. Navigation acts, question of, committed, ii., 225; postponed, 253; agreed to, 273; considered, 291; debated, 380, 386. Navy, provision for, debated, ii., 194. Negative on legislative acts. _See_ Executive, national, negative of; Judiciary, national, supreme, negative of. Negative on state laws. _See_ Legislature, national, negative of. New Hampshire, moved that governor of, be requested to send delegates, i., 272; representation of, 322, 324; delegates from, attend convention, ii., 29. New Jersey plan. _See_ Jersey plan. Nightingale, Jos., signs address from Rhode Island, i., 11, n. North Carolina, representation of, i., 325, ii., 378. O Oath to support national government from state officers, debated, i., 79, 122, 123, 137, ii., 30; to support constitution, affirmation permitted, 284. Olney, Jeremiah, signs address from Rhode Island, i., 11, n. P Pardons and reprieves. _See_ Executive, national, power of. Patents and copyrights. _See_ Legislature, national, power of. Patterson plan. _See_ Jersey plan. Patterson, William, N. J., attends convention, i., 1; Pierce's sketch of, 79, n.; moves to consider mode of voting in legislature, 109; favors equal vote by states in legislature, 111, 315; offers plan of government, 137; on committee on representation, 292; defends small states, 302; opposes inclusion of blacks in representation, 321; favors adjournment to consider representation in Senate, 367; opposes ineligibility of executive, ii., 6. Peace, power to declare, debated, ii., 188. Pensioners, disqualification of, from legislature, proposed, ii., 64. Phillips, Jonas, letter of, ii., 322, n. Pierce, William, Ga., notes of convention, i., 1, n.; sketch of Yates, 1, n.; sketch of Robert Morris, 2, n.; sketch of Few, 2, n.; sketch of Blair, 1, n.; sketch of Bassett, 1, n.; sketch of Washington, 3, n.; sketch of Wilson, 3, n.; sketch of Hamilton, 4, n.; sketch of Wythe, 5, n.; sketch of King, 5, n.; sketch of Mason, 6, n.; sketch of Gouverneur Morris, 8, n.; sketch of Butler, 11, n.; sketch of Spaight, 11, n.; sketch of Charles Pinckney, 13, n.; sketch of Randolph, 13, n.; sketch of Charles Cotesworth Pinckney, 33, n.; sketch of Gerry, 34, n.; sketch of Sherman, 34, n.; sketch of Read, 35, n.; sketch of Madison, 36, n.; attends convention, 39; sketch of Rutledge, 46, n.; sketch of Franklin, 49, n.; sketch of Bedford, 54, n.; sketch of Williamson, 57, n.; sketch of Dickinson, 62, n.; sketch of Davey, 65, n.; sketch of Patterson, 79, n.; favors election of Representatives by people and to Senate by legislatures, 89; sketch of Pierce, 89, n.; sketch of Brearley, 109, n.; sketch of Ellsworth, 120, n.; proposes three years' term for Senators, 128; sketch of Jenifer, 124, n.; sketch of Lansing, 138, n.; sketch of Johnson, 200, n.; sketch of Strong, 207, n.; sketch of Gorham, 210, n.; sketch of Alexander Martin, 218, n.; sketch of Dayton, 245, n.; opposes equal state representation, 268; sketch of Baldwin, 271, n.; sketch of Broome, ii., 8, n.; sketch of McClurg, 16, n.; sketch of Gilman, 29, n.; sketch of Houston, 38, n.; sketch of Carroll, 39, n.; sketch of Langdon, 64, n.; sketch of McHenry, 157, n.; sketch of Mifflin, 159, n.; sketch of Livingston, 209, n.; sketch of Blount, 394, n.; sketch of Ingersoll, 396. Pinckney, Charles, S. C., attends convention, i., 2; appointed on committee on rules, 4; moves a committee on minutes, 13; Pierce's sketch of, 13, n.; submits plan of constitution, 19; letters of concerning draft, 19, n.; asks if state governments are to be abolished, 33; favors enumerating powers of national legislature, 45; favors vigorous executive, 56; favors seven years' term for national executive, 54; favors single executive, 66; favors appointment of judiciary by executive, 78; opposes provision for amendments of constitution, 79; favors ratification by nine states, 81; moves election of Representatives by state legislatures, 84; opposes inclusion of judiciary in revisionary power, 93; moves consideration of negative on state laws, 94; favors election of Senators by state legislatures, 100; favors negative by legislature on all laws, 101; moves classification of states to determine representation, 107; favors representation by free population, 120; proposes selection of judges by legislature, 131; favors election of representatives by the people, 224; opposes equal state representation in Senate, 286; favors representation by population, 307; thinks originating money bills in House no concession, 310; favors representation of blacks equal with whites, 346; proposes proportional representation in Senate, 356; favors negative by legislature of state laws, 374; favors election of executive by the people, 376; opposes impeachability of executive, ii., 11, 13; favors appointment of judges by Senate, 26; moves that executive be elected by legislature for not more than six years in twelve, 52; moves exclusion from executive and judiciary of debtors of government, 61; opposes disqualification of debtors from legislature, 65; thinks national capital ought not to be at state capital, 67; moves reference to committee of whole of report of committee of detail, 91; thinks time of meeting of legislature need not be fixed in constitution, 93; moves increase in representation of South Carolina, 110; thinks fisheries and western frontier more burdensome than slavery, 114; moves to strike out requirement as to money bills, 115; favors fourteen years' citizenship for Senators, 121; thinks no strangers should be in legislature, 121; moves that time and mode of election of Representatives be fixed by state legislatures, 126; insists on property qualification for officers of government, 128; opposes considering question of money bills, 141; thinks government not bound to respect state laws on naturalization, 147; opposes ineligibility of members of legislature to other offices, 158, 163; moves that acceptance of other office shall vacate seat in legislature, 159; favors postponement of clause relating to eligibility of members of legislature to other offices, 166; thinks judiciary should not be included in revisionary power, 172; favors appointment of treasurer by joint ballot, 184; moves legislature subdue rebellions without application to state legislatures, 186; thinks Senate should have power to declare war, 187; thinks state debts may be assumed by government, 192; opposes executive council, 193; favors national control of militia, 197; submits propositions for committee of detail, 198; seconds Morris's propositions for committee of detail, 200; moves power to create necessary offices, 203; declares constitution will fail if slave trade is prohibited, 218; defends slavery, 221; moves to commit question of navigation acts, 225; moves officers be forbidden to accept presents from foreign states, 234, 235; moves national power to negative state laws, 236; thinks state executives should be appointed by national government, 237; moves election of executive by majority of legislature, 244; thinks rights of habeas corpus should be assured, 261; proposes that fugitive slaves be surrendered, 267; moves to recommit question of interstate validity of state acts, 267; favors commercial regulations, 269; moves that no religious test be required for office, 283; moves that Congress be not required to approve constitution, 288; moves ineligibility of members of legislature to other offices with emoluments, 294; thinks they should be eligible to other offices, 296; asks why mode of electing President is to be changed, 301; thinks electors objectionable, 301, 307; moves each house of legislature judge privileges of its own members, 304; agrees to postponement of clause relative to revenue bills, 306; seconds motion that two-thirds of Senate be present when electing President, 318; thinks Senate should not share in appointments, except of ambassadors, 328; opposes power of impeaching President, 336; moves an address to accompany constitution, 347; opposes three-quarter vote to override President's negative, 363; moves power to establish a university, 374; thinks legislature should not name treasurer, 371; opposes provision against standing armies, 374; moves guaranty of liberty of the press, 375; favors publication of accounts from time to time, 376; favors increase of North Carolina representation, 379; moves preservation of jury trials in civil cases, 384; announces he will sign constitution, 388; urges unequivocal signing, 396. Pinckney, Charles Cotesworth, S. C., attends convention, i., 1; Pierce's sketch of, 23, n.; opposes election of Representatives by the people, 90; thinks Senate should have power to originate money bills, 134; favors election of Representatives by state legislatures, 204, 206; opposes ineligibility of Representatives to state offices, 217; favors four years' term for Senators, 236, 238; favors no salary for Senators, 244; thinks Senate should be dependent on states, 247; favors compromise on representation, 287; thinks originating money bills in House no concession, 312; favors equality of representation for southern states, 323; favors greater representation for southern states, 324; moves increase of representation for North and South Carolina, and Georgia, 325; insists upon inclusion of blacks in basis of representation, 331; opposes tax on exports, 342; thinks slave property should be protected, 343; favors first census as basis of representation, 346; opposes adjournment on representation question, 367; insists constitution must provide against emancipation, ii., 39; moves exclusion from judiciary and executive of public debtors, 61; seconds motion to strike out provision for mutual negative of one branch of government over another, 92; moves that representation of South Carolina be increased, 110; moves ten years' citizenship for Senators, 125; asks whether there is to be no army, 135; favors national control of militia, 196, 197; declares constitution will fail if it interferes with slavery, 221; declares South Carolina will not soon stop slave trade, 223; on committee on navigation acts, 225; favors effective control of militia, 232; seconds motion to reconsider question of discharge of debts, 241; favors extension of slave trade, 250; proposes plan for selecting ports of entry, 253; thinks judges' salaries may be raised, 258; favors compromise on commercial regulations, 269; praises New England men, 269; approves motion that no religious test be required for office, 283; opposes clause as to juries in civil cases, 384; dislikes form of signing, 396, n. Pinckney plan, real date of, i., xvi.; letters concerning, i., 19, n; submitted, 20; facsimile of, 21; referred to committee of detail, ii., 48, 74. Piracies and felonies, power to declare, debated, ii., 184. Ports of entry, method of choosing, debate on, ii., 253. Post-offices, power to establish. _See_ Legislature, national, power of. Prayers in convention proposed by Franklin, i., 259, 260. Presents, acceptance of, from foreign states, by officers, forbidden, ii., 235. President, the. _See_ Executive, national. President of the convention, Washington elected, i., 3. Property qualification. _See_ Executive, national, compensation of; Judiciary, national, compensation of; Legislature, national, property qualification for; Senate. Proportional representation. _See_ Legislature, national, representation in. Q Quorum. _See_ Legislature, national, quorum in. R Randolph, Edmund, Va., attends convention, i., 1; offers Virginia plan, 13; Pierce's sketch of, 13, n.; explains design of Senate, 43; opposes indefinite power of legislature, 47; opposes single executive, 51, 63; opposes election of executive by state executives, 109; favors provision for amendment of constitution, 122; favors oath of allegiance to national government from state officers, 122; favors seven years' term for Senators, 128; moves extent of supreme court's jurisdiction, 130; opposes Jersey plan, 150; favors two years' term for representatives, 207; favors national compensation for Representatives, 210; favors rotation in personnel of Senate, 236; moves that sermon be preached to convention, 261; favors committee of compromise on representation, 291; on committee of compromise on representation, 307; objects to submitting question of voting in Senate to committee of small states, 308; opposes reduction of representation of New Hampshire, 324; moves that census be required, 327, 331, 344; moves representation by free inhabitants and three-fifths slaves, 344-350; favors adjournment on representation in Senate, 367, 368; opposes power to legislate where state legislation would interrupt harmony, 372; favors appointment of judges by Senate, 386; favors guaranty of republican government to states, 391; favors ineligibility to re-election of executive, ii., 4; favors impeachability of executive, 14; favors appointment of judges by executive, 27; thinks constitution should be ratified by the people, 31; favors fixing time of meeting of legislature provisionally, 44; thinks it unimportant when legislature meets, 95; revives question of money bills originating, 116; thinks state executives may safely fill vacancies in Senate, 117; moves to postpone question of voting in Senate, 118, 119; favors postponement of question of originating money bills, 120; opposes fourteen years' residence for Senators, 123; favors nine years' citizenship for Senators, 125; moves legislature have power to compel attendance of members, 135; approves expulsion from legislature by two-thirds vote, 135; thinks yeas and nays may be ordered by any member of legislature, 136; moves Senators may dissent from any measure, 136; thinks originating money bills ought to be reconsidered, 140; moves four years' citizenship for Representatives, 142; moves bills to raise revenue shall originate in House without power of amendment in Senate, 149; thinks provision as to money bills should stand, 155; favors disqualification of members of legislature from other offices, 166, 296; moves that power of negative extend to resolutions, 177; favors power to emit bills of credit, 182; doubts whether legislature may declare law of piracies, 185; moves that legislature define piracies, etc., 185; opposes suppression of rebellion without request of state, 187; favors extended definition of treason, 203; moves British statute on treason, 205; favors commitment of question of slave trade, 224; thinks power to fulfil engagements or old government unnecessary, 229; favors national control of militia, 232; moves postponement of question of treaty-making, 240; favors reconsideration of question of discharge of debts, 241; suggests states appoint some federal officers, 246; moves obligations of old government be binding on new, 249; opposed to removability of judges on application of legislature, 257; moves judges' salaries be fixed for three years, 258; on committee on interstate validity of state acts, 268; favors interstate validity of state acts, 268; announces objection to features of constitution, 273; moves that ratification from nine states be required, 284; favors second convention to consider amendments, 289; thinks declaration as to state acts defective, 294; asks why the mode of electing President is to be changed, 301; thinks eventual election of executive should be by whole legislature, 303; doubts whether each House should judge of the privileges of its members, 304; thinks mode of choosing President aristocratic, 310; moves that legislature name President when both President and Vice-President die, 323; thinks Vice-President should not be President of Senate, 326; thinks state conventions may offer amendments to constitution, 343; states his objections to the constitution, 346; proposes second convention, 346; moves pardons in treason cases be considered, 347; moves use of word "service" for "servitude," 367; seconds verbal amendment to clause on negative of bills, 368; moves suspension of officers impeached, 370; favors power to grant charters, 373; seconds motion against standing armies, 374; moves to except treason from President's power to pardon, 382; thinks President and Senate should not combine, 382; announces he cannot sign constitution, 387; proposes second federal convention, 388; thinks second convention feasible, 395; does not sign, 398. Ratification of constitution, method of, debated, i., 80, ii., 32, 254, 342, 344; by conventions, proposed, i., 79; by people of states, 122, 135, 187; by assemblies chosen by the people, debated, ii, 38; resolutions concerning, offered, 368. Read, George, Del., attends convention, i., 2; moves debate on three branches of government, 35; Pierce's sketch of, 35; moves to postpone question of representation, 37; favors national government, 89; moves Senate be named by executive, 95; opposes guaranty of territory to the states, 121; favors forbidding Senate from originating money bills, 133; thinks injustice was done small states in land cession, 237; supports small states on question of representation, 232; favors life term for Senators, 236; moves nine years' term for Senators, 238; thinks the United States ought to be one people, 241; favors abolishing states, 263; favors increase in representation, 326; thinks representation ought to be fixed by legislature, 334; thinks taxation and representation may be adjusted, 348; moves absolute negative by executive on legislature, ii., 95; opposes requirement that Representatives live in the states they represent, 108; opposes provision as to money bills, 118; moves that national legislature have power over elections if states make no provision, 128; opposes power to emit bills of credit, 183; moves that treasurer be appointed by executive, 184; doubts national control of militia, 198; thinks requisitions were accommodated to poverty of states, 212; favors commitment of question of taxing exports, 224; moves President of Senate have additional casting vote for executive, 244; on committee of August 25, 254; objects to same court having equity and law jurisdiction, 256; opposed to separate provision for re-election of President, 313; thinks small states should have vote for President in legislature, 325; moves prohibition of direct tax, 375. Rebellion in states, power to subdue, debated, ii., 186. Representation in legislature. _See_ Legislature, national, representation in, House of Representatives, Senate. Republican government, guaranty of, to states, debate on, i., 79, 121, 137, 390, ii., 282; amendment adopted, 384. Rhode Island, address from citizens of, i., 8, n.; moved representation of, be increased, ii., 378. Rules, of convention, committee on, appointed, i., 5; adopted, 6; additional, adopted, 12. Of legislature. _See_ Legislature, national, rules of. Russell, William, signs address from Rhode Island; i., 11, n. Rutledge, John, S. C., attends convention, i., 2; seconds motion for Washington's election as President, 3; wants enumeration of powers of legislature, 46; Pierce's sketch of, 46, n.; favors single executive, 66; opposes appointment of judges by executive, 77; opposes inferior judicial tribunals, 82; moves classification of states to determine representation, 107; favors representation according to wealth, 115, 120, 364; favors two years' term for Representatives, 124; thinks Senators should receive no compensation, 129; favors election of Representatives by state legislatures, 205; favors ineligibility of Representatives to other offices, 218, 223; opposes sending for New Hampshire delegates, 272; on committee on compromise on representation, 292, 307; moves fixing representation, 319; opposes increase in representation, 327; moves that representation be by wealth and population, 333; proposes to reconsider originating of money bills, 355; thinks powers of legislature loosely defined, 366; opposes adjournment to consider representation, 368; opposes guaranteeing republican government to states, 392; favors election of executive by state legislatures, ii., 8; opposes inclusion of judiciary in revisionary power, 25; on committee to report constitution according to resolutions, 58; submits report of committee, 75; moves annual meeting of legislature, 95; opposes confining suffrage to freeholders, 106; favors seven years' residence in their states of Representatives, 108; favors three years' residence in their states of Representatives, 110; insists on longer than seven years' citizenship for Senators, 125; moves mode of election of Representatives be left to state legislatures, 126; insists on property qualification for officers of government, 129, 132; moves publication of Senate journals, 137; thinks provision as to citizenship should apply to those already citizens, 146; opposes provision as to money bills, 156; seconds motion to postpone provision as to money bills, 171; urges progress, 175; opposes tax on exports, 178; moves that funds for public creditors be not diverted, 191; moves that state debts be assumed by government, 196; urges expedition, 193; defends slavery, 218; declares South Carolina and Georgia will not accept constitution if it prohibits slave trade, 224; submits report on Madison and Pinckney propositions, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; reports constitution according to resolutions, 228; moves constitution be the supreme law, 235; opposes power of negative of state laws, 237; thinks judiciary will decide controversies between states, 241; moves election of executive by joint ballot of legislature, 242; opposed to removability of judges on legislature's application, 257; moves judiciary have power over treaties, 259; thinks rights of habeas corpus should be inviolable, 261; moves to prohibit bills of attainder and retrospective laws, 263; on committee on interstate validity of state acts, 268; favors commercial regulations, 272; thinks there is no danger of dismemberment of states, 278; thinks it unnecessary to guarantee public lands, 281; presents committee report, 292; opposes plan for executive, 308; moves Senate choose President from thirteen candidates, 311; moves two-thirds of whole Senate concur in treaties, 334; objects to general power against slavery, 341; opposes legislature appointing treasurer, 371; opposes address to people, 377; moves to limit President's emoluments, 381. S Seat of government, not to be at same place with state capital, ii., 66; at central point proposed, 67; provisions for, 140. Second branch of legislature. _See_ Legislature, national, Senate. Senate. _See_ Legislature, national, Senate. Sermon for members of convention agreed to, i., 261. Sherman, Roger, Conn., attends convention, i., 32; favors conservative course toward states, 34; Pierce's sketch of, 34, n.; opposes election of Representatives by the people, 39; favors election of one Senator from each state, 45; favors election of executive by state legislatures, 50, 54, 375; favors three years' term for executive, 54; thinks legislature should have power to remove executive, 63; favors an executive council, 68; opposes negative by executive, 71; opposes ratification of constitution by conventions, 80; opposes creation of inferior judiciary tribunals, 82; favors election of Representatives by state legislatures, 85; favors elections to Senate by state legislatures, 94, 99; favors limiting power of negative on state laws, 104; proposes proportional representation in House and by states in Senate, 114; proposes each state have one vote in Senate, 120; opposes oath to national government by state officers, 122; proposes one-year term for Representatives, 124; proposes five years' term for Senators, 128; opposes leaving time and mode or electing Representatives to state legislatures, 129; proposes election of judges by national legislature, 131; thinks money bills may originate in Senate, 133; opposes two branches of legislature, 196; favors election of Representatives by state legislatures, 205; consents to two years' term for Representatives, 208; favors compensation of Representatives by states, 211; opposes ineligibility of Representatives to state offices, 217, 220, 223; favors six years' term for Senators, 237; favors six or four years' term for Senators, 240; favors rights of small states, 258; proposes committee on representation, 287, 320; favors vote by states in Senate, 313; moves to postpone question of representation, 318; opposes increase in representation, 325, 326; opposes periodical census, 329; thinks representation should be fixed by census, 333; thinks representation fairly apportioned, 339; favors leaving question of taxation to state legislatures, 349; thinks Senators may vote per capita, 357; thinks government should have coercive power over states, 363; thinks government will act on states in requiring tax quotas, 363; moves that government should not interfere with internal policy of states, 371; opposes direct taxation by national government, 371; thinks state courts will consider state laws contravening national authority invalid, 372; opposes negative by legislature of state laws, 372; opposes ineligibility of executive to second term, 379; opposes tenure of executive for good behavior, 380; favors appointment of judges by Senate, 382; favors appointment of judges by executive with consent of Senate, 387; opposes creation of inferior judicial tribunals, 389; favors negative of each branch of legislature on the other, ii., 91; thinks time of meeting of legislature should be specified, 94; moves Representatives be inhabitants of their states, 107; thinks representation should stand, 111; moves that representation not exceed 1 to 40,000, 112; thinks slaves should be included in representation, 114; thinks yeas and nays may not be required, 136; moves publication of journal of legislature, 138; thinks general government can make any regulations as to citizenship, 146; thinks those in power should be free from temptation, 163; favors payment of legislature partly by states and partly by nation, 168; thinks power of negative should not be extended, 174; thinks revision of acts by President unnecessary, 177; favors no tax on exports, 178, 180; opposes appointment of treasurer by joint ballot, 184; thinks executive should not have power to commence war, 188; thinks state debts may be assumed by government, 192; appointed on grand committee, 193; thinks states should partially control militia, 196, 197; thinks resistance to national laws treason, 207; thinks report on state debts meaningless, 210; favors limiting representation of large states, 210; moves settlement of debts on basis of taxation, 211; thinks provision as to slave trade may stand, 218, 224; thinks question of taxing exports settled, 224; moves that states have power to train militia, 230; withdraws motion, 230; proposes mixed control of militia, 231; thinks states should appoint militia officers, 233; thinks negative of state laws by general government unnecessary, 236; thinks judiciary will decide controversies between states, 241; opposes election of executive by joint ballot of legislature, 242; objects to executive appointing all officers, 246; objects to legislatures of states appointing federal officers, 247; moves express provision for paying debts, 249; opposed to taxing men as property, 251; thinks revenue the object of import tax on slaves, 252; on committee of August 25, 254; moves amendment to pardoning power, 254; moves militia be under executive when in active service, 255; favors removability of judges on application of legislature, 257; moves judicial power extend to land grants, 260; reports amendments on commercial regulations and judicial power, 260; moves to prohibit bills of credit or payments in anything but coin, 262; wishes to crush paper money, 262, 263; thinks states should have power to lay embargoes, 264; thinks state legislatures may deal with impost question, 265; moves that states may tax exports for national treasury, 265; opposes surrender of fugitive slaves and servants, 266; desires commercial regulations by majority vote, 270; declare all should have equal privileges, 275; thinks Union cannot dismember a state, 276; moves admission of new states by consent of state legislatures, 278; thinks constitution may guarantee public lands, 281; thinks no religious test will be applied for office, 283; thinks ratification should be from ten states, 284, 287; thinks ratification should be by all states, 285; moves to postpone ratification question, 287; moves to take up report of committee of eleven, 290; moves to refer draft of constitution to committee, 292; on committee, 292; opposes national bankruptcy law, 294; favors ineligibility of members of legislature to other offices, 295; does not object to election of Vice-President by majority, 300; thinks army in time of peace should be restricted, 305; willing to defer to those who think revenue bills vital, 306; thinks large states will have advantage in nominating candidates for President, 309; thinks President should not be chosen from three candidates, 311; thinks when legislature votes for President it should vote by states, 313; moves eventual election of President by House of Representatives, 318; approves of Vice-President being President of Senate, 326; favors inclusion of Senate in treaty-making, 327; thinks whole legislature should participate in treaties of peace, 333; moves that majority of whole Senate vote for treaties, 334; thinks supreme court should not try President, 336; thinks representation large enough, 339; moves states be required to consent to amendments, 341; favors submitting constitution to Congress, 344; favors two-thirds vote to override President's negative, 361; thinks state bills of rights sufficient, 364; thinks legislature should appoint treasurer, 371; objects to power to cut canals, 372; thinks provision for liberty of press unnecessary, 375; thinks accounts may be published from time to time, 376; opposes address to states, 378; favors additional representation for North Carolina, 378; thinks states and nation may have concurrent commercial jurisdiction, 381; seconds motion to vest appointments in President and others, 383; thinks three-quarter states may oppress others by amendments, 385; thinks conventions may act on amendments, 386; moves that states be preserved, 386; moves to strike out clause concerning amendments, 386. Signing constitution, mode proposed, ii., 391; takes place, 393. Slavery and slave trade, debate on, ii., 218, 250; compromise on, brought in, 269; power to prohibit, objected to, 366. Slaves, import tax on, agreed to, ii., 252; delivery up of fugitive, proposed, 267; agreed to, 274; verbal amendment made, 384. South Carolina, motion that representation of, be increased, ii., 110. Spaight, Richard Dobbs, N. C., attends convention, i., 2; moves rule for revision of questions, 11; Pierce's sketch of, 11, n.; seconds motion for representation by free inhabitants, 37; favors election to Senate by free population, 43; withdraws motion for elections to Senate by state legislatures, 44; moves reconsideration of appointment of executive by electors, ii., 39; seconds motion to elect executive by national legislature, 40; fears capital will be located at New York, 139; favors commercial regulations by majority vote, 271; moves Senate choose President from thirteen candidates, 311; moves seven years' term for executive, 316; moves six years' term, 316; moves electors meet at seat of government, 317; proposes President make appointments during recess of Senate, 329; moves special provision respecting territorial rights, 332. State acts, validity of, debated, ii., 267, 293; certain, prohibited, 377. State debts, debate on assumption of, ii., 192. State laws, negative of. _See_ Legislature, national, negative of. State police, non-interference in, by national government, debated, i., 371. State representation, equal in House, debated, i., 268; in Senate, 273, 286; committee to arrange, debated, 287, 292; report of committee, 293. _See_ Legislature, national, representation in. States, admission of new, provision for, agreed to, i., 78, 137, 390; debated, ii., 274, 275, 277, 278, 279, 280, 384. Strong, Caleb, Mass., attends convention, i., 5; favors one-year term for Representatives, 207; Pierce's sketch of, 207, n.; favors committee on representation, 291; favors equal representation by states in Senate, 359; opposes inclusion of judiciary in revisionary power, ii., 20; thinks executive will not be re-elected, 40; thinks question of voting in Senate should be postponed, 118; favors $4 per day as payment for legislature, 170; moves revenue bills originate in House, 170. Style and arrangement, committee on. _See_ Committee on style and arrangement. Sumptuary laws, debate on, ii., 202, 366; committee on, _see_ Committee on sumptuary laws. Supreme Court. _See_ Judiciary, national supreme. T Taxation, by representation, debated, i., 342, 349, ii., 47; basis of, by free and slave population, debated, i., 343; direct on states in proportion to representation, debated, 350; direct by national government, opposed, 371; proposed that it be by quotas, ii., 207; according to congressional representation, debated, 208, 211; definition of direct, asked, 208; by population, proportion agreed to, 210; power of, on exports, debated, 217, 218, 376; on migration of slaves, debated, 218; on slaves, debated, 219, 241; capitation and direct, debated, 375. _See_ Legislature, national, representation in. Term of members of legislature. _See_ Legislature, national, term of. Territory, guaranty of, to each state, debated, i., 121. Tonnage dues. _See_ Navigation acts. Treason, debate on, ii., 202. Treasurer, appointment of. _See_ Legislature, national, power of. Treaties, power to make, debated, i., 242, 243, ii., 238, 327; force of, debated, 252; power to interpret, by judiciary, debated, 259; of peace, how to be made, 330, 332, 333; provision for, reconsidered, 333; proposed that they require two-thirds Senate, 334, 335; proposed that they require majority, 335; notice of, to Senators, proposed, 335. _See_ Legislature, national, Senate. U University, national. _See_ Legislature, national, power of. V Varnum, J. M., letter from, with address from Rhode Island, i., 9, n. Vermont, admission of, to Union, debated, ii., 276. Veto power. _See_ Executive, national, negative of. Vice-President, duties of, defined, ii., 299, 300, 326. Virginia plan, the, presented to convention, i., 13; debated in committee of the whole, 32; debated, 39; reported on from committee of the whole, 134, 184; vote on, 185. Voting, restriction of, to freeholders, debated, ii., 96. W War, power to declare, debated, ii., 187. Washington, George, Va., attends convention, i., 1; elected president of convention, 3; thanks convention for election, 3; Pierce's sketch of, 3, n.; rebukes member for losing his notes, 48, n.; John Jay's letter to, ii., 48, n.; Knox's letter to, 158, n.; urges increase in representation, iv., 392; asks instructions concerning journals, 397. Williamson, Hugh, N. C., attends convention, i., 2; objects to election of executive by districts, 57; Pierce's sketch of, 57, n.; moves impeachability of executive, 65; favors limiting Senate to twenty-five members, 95; opposes indefinite power of negative on state laws, 103; favors proportional representation, 114; favors states paying representatives, 210; moves that number in Senate be fixed, 235; favors six years' term for Senators, 236; thinks rights of small states not menaced, 253; favors committee on representation in Senate, 291; opposes compromise proposed, 361; thinks Senate better able to consider money bills than House, 309; thinks proposed representation unfair to southern states, 324; favors reducing representation of northern states, 324; amends motion fixing periodical census, 330; thinks New Hampshire representation too large, 348; opposes election of executive by people, 378; opposes eligibility of executive to re-election, ii., 8, 41; opposes election of executive by electors, 8; favors six years' term for executive, 9; moves number of electors be based on Representatives, 10; moves electors be paid out of national treasury, 17; suggests national officers take oath to support state governments, 30; favors ratification of constitution by conventions, 35; favors voting per capita in Senate, 38; dislikes single executive, 41; suggests voting for three persons for executive, 54; favors forbidding national capital at state capital, 66; seconds motion to limit negative of each branch of legislature on the other, 91; moves representation in House based on taxation, 110; favors reconsidering question of money bills, 116; thinks provision for filling vacancies in Senate necessary, 117; insists upon guarding qualifications of Senators, 125, 131; thinks provision on money bills should be retained, 141; moves nine years' citizenship for Representatives, 144; opposes eligibility of members of legislature to other offices, 163; moves postponement of question of money bills, 171; moves to make three-quarters of legislature necessary to overcome executive negative, 176; thinks exports should not be taxed, 179; thinks state lands ought to be given up, 193; appointed on grand committee, 193; favors restrictions on army, 195; moves quotas of states be determined, 211; opposes apportionment of taxation by representation, 212; thinks states should not have power to tax exports, 213; thinks slave trade should be left to states, 223; on committee on navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks discussion of negative of state laws unnecessary, 237; doubts if judiciary can impartially decide controversies between states, 241; opposes slavery, but wishes union, 251; on committee of August 25, 254; moves to postpone question of executive succession, 256; seconds motion to make it impossible for states to levy imposts, 265; moves clause of articles of confederation as to state acts, 267; favors commercial regulations by two-thirds vote, 270; thinks question of new states should be left to legislature, 275, 278; on committee of August 31, 292; thinks ineligibility of members of legislature should extend to offices created during their term, 295, 296; objects to President's dependence on Senate in appointments, 302; moves to reconsider representation, 307; objects to Senate electing President, 308, 310, 315; moves election of President by one-third of all electors, 310; moves electors voting be the only ones counted, 311; favors separate provision for re-electing President, 313; moves seven years' term for President, 316; moves six years' term for President, 316; thinks electors should meet at seat of government, 317; suggests eventual election of President by whole legislature, voting by states, 318; thinks Vice-President unnecessary, 326; thinks treaties of peace important, 330, 332; thinks treaties may be made without majority of people, 333; opposes requirement that treaties be ratified by majority of whole Senate, 334; proposes that notice of treaties to Senators be required, 335; thinks Senate will lean towards President, 336; moves increase in representation in House of Representatives, 338; moves that old Congress sanction constitution, 346; favors two-thirds vote to override President's negative, 361; fears too many laws, 362; moves provision for juries in civil suits, 363; moves increase of representation, 369; seconds motion against direct tax, 375; suggests signing letter only, 393. Wilson, James, Pa., attends convention, i., 1; nominates William Temple Franklin for secretary of convention, 3; Pierce's sketch of, 3, n.; favors election of Representatives by the people, 41, 205; favors election of Senators by the people, 44, 95; favors a single executive, 49, 50, 67; favors election of executive by the people, 53, 55, ii., 6, 47; favors three years' term for executive, i., 54; moves election of executive by district electors, 56; opposes an executive council, 68; favors negative by executive on legislature, 69, 71; favors creation of inferior judiciary, 73, 82; favors inclusion of judiciary in power of negative, 75; opposes appointment of judges by legislature, 77; favors ratification by plurality of States, 81; favors election of Representatives by the people, 84; favors preservation of state governments for local purposes, 90; favors inclusion of judiciary in revisionary power, 91, ii., 17, 25; favors election to Senate by districts, i., 98; favors absolute negative in legislature, 104; favors proportional representation, 113, 115, 257; favors representation by free inhabitants, 119; thinks voting in Senate should be on same plan as in House, 121; opposes Jersey plan, 146; opposes Hamilton plan, 185; insists that states are dependent on each other, 188; favors two branches of legislature, 198; thinks state governments may encroach on national government, 201; favors one-year term for Representatives, 207; favors national compensation of Representatives, 211; moves that compensation be fixed by legislature, 212; opposes age limit for Representatives, 214; opposes ineligibility of Representatives to other offices, 214, 220; opposes elections to Senate by state legislatures, 233; favors six years' term for Senators, 237; favors nine years' term for Senators, 243; opposes eligibility of Senators to state offices, 247; opposes sending for New Hampshire delegates, 272; opposes representation by states in Senate, 273; admits question of number of Senators is embarrassing, 280; opposes committee on representation in Senate, 291; moves question of voting in Senate, 308; opposes originating money bills in House, 309, 312; opposes yielding equal vote in Senate to small states, 314; thinks representation of western states should be based on property, 320; thinks wealth an impracticable rule of representation, 334; opposes inclusion of three-fifths of blacks as basis of representation, 339; favors guaranty of republican government to the states, 342; moves that representation be according to direct taxation, 344; favors representation based on free inhabitants and three-fifths of slaves, 344; favors adjusting taxation to representation, 349; thinks equal vote in Senate favored by minority, 355; insists that numbers are correct basis for representation, 355; thinks small states would abandon plea of equality in taxes and troops, 356; thinks originating money bills in House of little consequence, 356; insists on proportional representation in Senate, 362; favors non-interference of national government with state police, 371; opposes election of executive by the people, 375; opposes election of executive by legislature, 377; favors appointment of judges by executive, 384; favors continuance of old Congress till new government starts, 390; favors guaranty to states of republican government and against violence, 392; favors impeachability of executive, ii., 11; thinks departments should act separately, 24; thinks oath of allegiance unnecessary, 30; opposes election of executive by legislature, 43; suggests election of executive by members of national legislature selected by lot, 44, 47; on committee to report constitution according to resolutions, 48; favors specifying general principles for executive, 56; opposes disqualification from legislature of persons having unsettled accounts, 64; thinks time of meeting of legislature should be fixed, 93; favors winter as time for meeting of legislature, 95; thinks suffrage in the States should not be prescribed by legislature, 96; favors requiring Representatives to be inhabitants, 108; opposes requirement of seven years' inhabitancy for Representatives, 108, 109; thinks question of representation by free inhabitants premature, 114; opposed to originating money bills in House, 115; reviews question of citizenship of Representatives, 116; objects to vacancies in Senate being filled by state executives, 116; thinks provision as to money bills of no value to large states, 118, 120; opposes fourteen years' residence as necessary for Senators, 123; moves to reconsider requirement of seven years for Representatives, 132; thinks number for quorum should not be small, 134; thinks publication of legislative journal necessary, 138; moves four years' citizenship for Representatives, 142; insists Representatives need not be natives, 145; thinks new government bound by Pennsylvania's promises to foreigners, 148; moves seven years' citizenship for Senators, 149; thinks people will disapprove members of legislature holding other offices, 164; thinks good men will refuse legislature if debarred from other offices, 165; seconds motion to have acts revised by executive and judiciary, 172; thinks legislature will swallow up powers of government, 175; favors making three-fourths of legislature necessary to overcome executive negative, 176; explains difference between "duties" and "imposts," 177; thinks exports may be taxed, 179; opposed to power to emit bills of credit, 182; thinks it unnecessary to define felonies, etc., 185; thinks law of felonies, etc., ought to be declared, 185; moves that treason be against United States, 205; thinks treason may be against a state, 206; thinks proof of treason may be difficult, 207; favors power to tax exports, 215; seconds motion to tax exports by two-thirds of legislature, 217; thinks slaves should be taxed, 222; favors commitment of question of navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks Senate should not make appointments, 235; thinks negative of state laws unnecessary, 237; objects to Senate's power to make treaties, 239; thinks judiciary may decide controversies between states, 242; seconds motion for election of executive by the people, 243; thinks larger states should have larger share in election of executive, 295; thinks Senate should not have separate voice in election of executive, 246; thinks state legislatures will order federal offices filled by state appointment if permitted, 247; thinks pardon before conviction may be necessary, 255; opposes removability of judges on application of legislature, 257; explains appellate power of judiciary, 260; doubts if suspension of right of habeas corpus is ever necessary, 262; moves legislature be prohibited from paying debts in anything but coin, 262; thinks states should not interfere with contracts, 263; objects to treating fugitive slaves as criminals, 267; favors interstate validity of state acts, 267; on committee to consider subject, 268; favors commercial regulations by majority vote, 271; thinks majority may regulate formation of new states, 277; thinks new states may be formed without consent of old, 278; opposes motion to guarantee public lands, 281; proposes ratification by seven states, 284; prefers ratification by eight states to nine, 285; thinks constitution binding only on ratifying states, 285; moves that ratification be by majority of people and states, 287; thinks state power over other states' acts not unusual, 293; opposes ineligibility of members of legislature to other offices, 296; approves plan of electing executive, 302; thinks it unnecessary to give each House power over privileges of its members, 304; moves eventual election of President by whole legislature, 309; thinks eventual election of President by Senate dangerous, 313; moves to include House of Representatives in treaty-making power, 327; objects to Senate's participation in appointments, 328; objects to participation of two-thirds Senate on treaties, 329, 334; favors executive council, 332; favors ratification of treaties with majority of Senate, 333; thinks less than two-thirds Senate may ratify treaties of peace, 333; opposed to President convening either house of legislature, 338; moves amendments be with consent of two-thirds of states, 341; substitutes three-fourths, 341; opposes reconsideration of ratification clause, 343; thinks old Congress need not sanction constitution, 345; moves to strike out "direct taxes," 367; thinks legislature should not define offences against law of nations, 372; seconds motion in favor of canals, 372, 373; favors national university, 374; thinks accounts should be published from time to time, 376; thinks executive may pardon for treason, 382; favors depositing convention journal with president, 397. Wythe, George, Va., attends convention, i., 2; appointed on committee on rules, 4; submits report of committee on rules, 5; Pierce's sketch of, 5, n.; offers additional rules, 12. Y Yates, Robert, N. Y., attends convention, i., 1; Pierce's sketch of, 1, n.; on committee on compromise on representation, 292; leaves convention, 298, n. Yeas and nays. _See_ Legislature, national. Transcriber Notes: Passages in italics were indicated by _underscores_. Passages in bold were indicated by =equal signs=. Small caps were replaced with ALL CAPS. Throughout the document, the oe ligature was replaced with "oe". Throughout the document, a tilded m is represented by [~m]. This document was filled with errors and inconsistencies in spelling, punctuations, and hyphenation. For example, usually the word re-eligible is hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated but sometimes it is not; and usually the comma is used as a thousand mark, but sometimes a period is used for that purpose. Sometimes vice President was used and sometimes vice-President was used. Also, the abbreviations were not uniform (e.g., Mas. v. Mass.), which were only corrected when it is was clear which abbreviation was considered correct at the time printed. Another example is the abbreviation for Resolution, which was sometimes Resol:^n, sometimes Resol^n, and sometimes Resol.^n. Sometimes "nem: con." was used, and sometimes "nem. con." was used. The only time errors were corrected was when it was very clear that an error was made, and it was clear how the error should be corrected, and those corrections are listed below. Throughout the document there are instances where a comma is used where one expects a period, a period is used where one expects a comma, a colon is used where one expects a comma or period, neither is used when one is expected. This instances are left as-is, except for two exceptions: where a period is missing at the end of a sentence or missing at the end of an abbreviation, both of which happened so often that those corrections were made but were not listed below. Throughout the document, there was no consistence in the formatting of the titles for each date, (e.g., FRIDAY AUG^{ST} 10. IN CONVENTION). No attempt was made to correct such inconsistencies. Capitalization was corrected throughout the document without comment. Throughout the document, a single superscripted letter is represented by that single letter preceded by a caret, and more than one superscripted letters are represented by the letters enclosed by curly brackets. Thus, the word "y^e" represents a word where the "y" is normal and the "e" is superscripted; and the word "2^{dnd}" represents a word where the "2" is normal and the "dnd" is superscripted. In both conventions, it is assumed that a dot appeared below the superscripted letters, since in the original text a dot was often (but not always) present under the superscripted letters. Thus, "2^{dnd}" in the present text would represent a normal digit "2" followed directly by the superscripted letters "dnd" with a single dot below the set of three letters. On page 7, "difficulty an seemed" was replaced with "difficulty and seemed". On page 7, "Hamshire" was replaced with "Hampshire". On page 8, a period was added after "div^d.". On page 9, removed period between "6" and "years". On page 16, "forign" was replaced with "foreign". On page 17, in footnote 4, "McLurg" was replaced with "McClurg". On page 26, a period was added after "2". On page 38, "[blank]" was inserted to mark a large blank space that appeared in the footnote. On page 46, there is a missing opening quotation mark in the last paragraph, but it is unclear where that mark should go. On page 47, the word "this" was capitalized in the sentence starting "This is committing too much". On page 50, "forign" was replaced with "foreign". On page 53, a period was added after "change of measures". On page 76, a comma was added after the word "Virginia". On page 81, the comma after "weights and measures" was replaced with a semicolon. On page 112, a quotation mark was added after "40.000.". On page 135, "M^r Kings" was replaced with "M^r King's". On page 137, "M^r Carrols" was replaced with "M^r Carrol's". On page 140, "in the shape it which" was replaced with "in the shape in which". On page 143, "It" was capitalized at the beginning of a sentence. On page 145, "Hamiltons" was replaced with "Hamilton's" On page 146, "Will" was capitalized at the beginning of a sentence. On page 147, the period after "the violaters" was changed to a question mark. On page 166, "Pinkneys" was replaced with "Pinkney's". On page 167, "[blank]" was inserted to mark a large blank space within parenthesizes. On page 184, "Reads" was replaced with "Read's". On page 189, a colon was added after "the General Legislature". On page 189, a quotation mark was added after "limits of the U. States." On page 207, "misdemesnors" was replaced with "misdemeanors". On page 211, "there" was replaced with "There". On page 212, "it" was replaced with "It". On page 217, a quotation mark was added after "exports". On page 218, a period was added after "2". On page 228, "reflextions" was replaced with "reflections". On page 228, "The" was replaced with "the". On page 230, a quotation mark was added after "training". On page 235, a quotation mark and a comma was added after "foreign State". On page 236, a period was added after "nem: contrad". On page 237, the quotation mark was deleted after "&c &c." On page 242, a quotation mark was added after "a second time." On page 248, "these" was replaced with "These". On page 301, "2 the" was replaced with "2. The", and "6. the" was replaced with "6. The". On page 305, "U. S" was replaced with "U. S.". On page 305, "biennally" was replaced with "biennially". On page 306, a quotation mark was added after "purchased for forts". On page 314, a comma was removed after "The Senate". On page 319, a quotation mark was removed after "the States,". On page 324, in Footnote 58, a period was added after "united States of america". On page 332, a quotation mark was added after "the States present". On page 399, the word "the" was shown by the printer to be inserted in the sentence. This insertion was made. On page 414, added period were removed after some names in the signatures. On page 440, in the index entry for Mason, which begins "doubts propriety of mutual negative", "legiture" was replaced with "legislature". On page 457, in the index entry "Knox's letter to, 158 ;" for "Washington, George, Va.", "n. was entered in the missing blank. Throughout the document, "Sharman" was replaced with "Sherman". Throughout the document, one delegate is sometimes named "Dickinson" and is sometimes named "Dickenson"; and another delegate is sometimes named "Carroll" and is sometimes named "Carrol". In the index, entries divided by page markers were joined into single entries where possible, and the formatting of the index was regularized (e.g., periods replaced with commas for uniformity of formatting). 
40861	----	scanned images of public domain material from the Google Print project.) The Journal of the Debates in the Convention Which Framed The Constitution of the United States May-September, 1787 As Recorded by James Madison Edited by Gaillard Hunt In Two Volumes Volume I. G. P. Putnam's Sons New York and London The Knickerbocker Press 1908 The Knickerbocker Press, New York [Illustration] CONTENTS OF VOLUME I. PAGE The Records of the Constitutional Convention (Introduction by the Editor) vii Chronology xix Journal of the Constitutional Convention of 1787 1 [Illustration] [Illustration] LIST OF FAC-SIMILES. FACING PAGE First Page of Madison's Journal, actual size 2 Charles Pinckney's Letter 20 The Pinckney Draft 22 Hamilton's Principal Speech 154 [Illustration] [Illustration] THE RECORDS OF THE CONSTITUTIONAL CONVENTION. James Madison's contemporaries generally conceded that he was the leading statesman in the convention which framed the Constitution of the United States; but in addition to this he kept a record of the proceedings of the convention which outranks in importance all the other writings of the founders of the American Republic. He is thus identified, as no other man is, with the making of the Constitution and the correct interpretation of the intentions of the makers. His is the only continuous record of the proceedings of the convention. He took a seat immediately in front of the presiding officer, among the members, and took down every speech or motion as it was made, using abbreviations of his own and immediately afterwards transcribing his notes when he returned to his lodgings. A few motions only escaped him and of important speeches he omitted none. The proceedings were ordered to be kept secret, but his self-imposed task of reporter had the unofficial sanction of the convention. Alexander Hamilton corrected slightly Madison's report of his great speech and handed him his plan of government to copy. The same thing was done with Benjamin Franklin's speeches, which were written out by Franklin and read by his colleague Wilson, the fatigue of delivery being too great for the aged Franklin, and Madison also copied the Patterson plan. Edmund Randolph wrote out for him his opening speech from his notes two years after the convention adjourned.[1] [1] Madison to Randolph, April 21, 1789. In the years after the convention Madison made a few alterations and additions in his journal, with the result that in parts there is much interlineation and erasure, but after patient study the meaning is always perfectly clear. Three different styles of Madison's own penmanship at different periods of his life appear in the journal, one being that of his old age within five years of his death. In this hand appears the following note at the end of the journal: "The few alterations and corrections made in the debates which are not in my handwriting were dictated by me and made in my presence by John C. Payne."[2] The rare occasions where Payne's penmanship is distinguishable are indicated in the notes to this edition. [2] Mrs. Madison's brother. The importance attached by Madison to his record is shown by the terms of his will, dated April 15, 1835, fourteen months before his death: "I give all my personal estate ornamental as well as useful, except as herein after otherwise given, to my dear Wife; and I also give to her all my manuscript papers, having entire confidence in her discreet and proper use of them, but subject to the qualification in the succeeding clause. Considering the peculiarity and magnitude of the occasion which produced the Convention at Philadelphia in 1787, the Characters who composed it, the Constitution which resulted from their deliberations, its effects during a trial of so many years on the prosperity of the people living under it, and the interest it has inspired among the friends of free Government, it is not an unreasonable inference that a careful and extended report of the proceedings and discussions of that body, which were with closed doors, by a member who was constant in his attendance, will be particularly gratifying to the people of the United States, and to all who take an interest in the progress of political science and the course of true liberty. It is my desire that the Report as made by me should be published under her authority and direction."[3] [3] Orange County, Va., MSS. records. This desire was never consummated, for Mrs. Madison's friends advised her that she could not herself profitably undertake the publication of the work, and she accordingly offered it to the Government, by which it was bought for $30,000, by act of Congress, approved March 3, 1837. On July 9, 1838, an act was approved authorizing the Joint Committee on the Library to cause the papers thus purchased to be published, and the Committee intrusted the superintendence of the work to Henry D. Gilpin, Solicitor of the Treasury. The duplicate copy of the journal which Mrs. Madison had delivered was, under authority of Congress, withdrawn from the State Department and placed in Mr. Gilpin's hands. In 1840 (Washington: Lantree & O'Sulivan), accordingly, appeared the three volumes, _The Papers of James Madison Purchased by Order of Congress_, edited by Henry D. Gilpin. Other issues of this edition, with changes of date, came out later in New York, Boston, and Mobile. This issue contained not only the journal of the Constitutional Convention, but Madison's notes of the debates in the Continental Congress and in the Congress of the Confederation from February 19 to April 25, 1787, and a report Jefferson had written of the debates in 1776 on the Declaration of Independence, besides a number of letters of Madison's. From the text of Gilpin a fifth volume was added to Elliot's _Debates_ in 1845, and it was printed in one volume in Chicago, 1893. Mr. Gilpin's reading of the duplicate copy of the Madison journal is thus the only one that has hitherto been published.[4] His work was both painstaking and thorough, but many inaccuracies and omissions have been revealed by a second reading from the original manuscript journal written in Madison's own hand, just as he himself left it; and this original manuscript has been followed with rigid accuracy in the text of the present edition. [4] Volume iii of _The Documentary History of the United States_ (Department of State, 1894) is a presentation of a literal print of the original journal, indicating by the use of larger and smaller type and by explanatory words the portions which are interlined or stricken out. The editor has compared carefully with Madison's report, as the notes will show, the incomplete and less important records of the convention, kept by others. Of these, the best known is that of Robert Yates, a delegate in the convention from New York, who took notes from the time he entered the convention, May 25, to July 5, when he went home to oppose what he foresaw would be the result of the convention's labors. These notes were published in 1821 (Albany), edited by Yates's colleague in the convention, John Lansing, under the title, _Secret Proceedings and Debates of the Convention Assembled at Philadelphia, in the Year 1787, for the Purpose of Forming the Constitution of the United States of America_. This was afterwards reprinted in several editions and in the three editions of _The Debates on the Federal Constitution_, by Jonathan Elliot (Washington, 1827-1836). Madison pronounced Yates's notes "Crude and broken." "When I looked over them some years ago," he wrote to J. C. Cabell, February 2, 1829, "I was struck with the number of instances in which he had totally mistaken what was said by me, or given it in scraps and terms which, taken without the developments or qualifications accompanying them, had an import essentially different from what was intended." Yates's notes were colored by his prejudices, which were strong against the leaders of the convention, but, making allowance for this and for their incompleteness, they are of high value and rank next to Madison's in importance. Rufus King, a delegate from Massachusetts, kept a number of notes, scattered and imperfect, which were not published till 1894, when they appeared in King's _Life and Correspondence of Rufus King_ (New York: Putnam's). William Pierce, a delegate from Georgia, made some memoranda of the proceedings of the convention, and brief and interesting sketches of all the delegates, which were first printed in _The Savannah Georgian_, April, 18-28, 1828, and reprinted in _The American Historical Review_ for January, 1898. The notes of Yates, King, and Pierce are the only unofficial record of the convention extant, besides Madison's, and their chief value is in connection with the Madison record, which in the main they support, and which occasionally they elucidate. December 30, 1818, Charles Pinckney wrote to John Quincy Adams that he had made more notes of the convention than any other member except Madison, but they were never published and have been lost or destroyed.[5] [5] See p. 22, n. In 1819 (Boston) was published the _Journal, Acts and Proceedings of the Convention_, etc., under the supervision of John Quincy Adams, Secretary of State, by authority of a joint resolution of Congress of March 27, 1818. This was the official journal of the convention, which the Secretary, William Jackson, had turned over to the President, George Washington, when the convention adjourned, Jackson having previously burned all other papers of the convention in his possession. March 16, 1796, Washington deposited the papers Jackson had given him with the Secretary of State, Timothy Pickering. They consisted of three volumes,--the journal of the convention, the journal of the proceedings of the Committee of the Whole of the convention, and a list of yeas and nays, beside a printed draft of the Constitution as reported August 6th, showing erasures and amendments afterwards adopted, and the Virginia plan in different stages of development. In preparing the matter for publication Secretary Adams found that for Friday, September 14, and Saturday, September 15, the journal was a mere fragment, and Madison was applied to and completed it from his minutes. From General B. Bloomfield, executor of the estate of David Brearley, a delegate in the convention from New Jersey, Adams obtained a few additional papers, and from Charles Pinckney a copy of what purported to be the plan of a constitution submitted by him to the convention. All of these papers, with some others, appeared in the edition of 1819, which was a singularly accurate publication, as comparison by the present editor of the printed page with the original papers has shown. The Pinckney plan, as it appeared in this edition of the journal, was incorporated by Madison into his record, as he had not secured a copy of it when the convention was sitting. But the draft furnished to Secretary Adams in 1818, and the plan presented by Pinckney to the convention in 1787 were not identical, as Madison conclusively proved in his note to his journal, in his letter to Jared Sparks of November 25, 1831, and in several other letters, in all of which he showed that the draft did not agree in several important respects with Pinckney's own votes and motions in the convention, and that there were important discrepancies between it and Pinckney's _Observations on the Plan of Government_, a pamphlet printed shortly after the convention adjourned.[6] [6] See P. L. Ford's _Pamphlets on the Constitution_, 419. It is, indeed, inconceivable that the convention should have incorporated into the constitution so many of the provisions of the Pinckney draft, and that at the same time so little reference should have been made to it in the course of the debates; and it is equally extraordinary that the contemporaries of Pinckney did not accord to him the chief paternity of the Constitution, which honor would have belonged to him if the draft he sent to Mr. Adams in 1818 had been the one he actually offered the convention in the first week of its session. The editor has made a careful examination of the original manuscripts in the case. They consist (1) of Mr. Pinckney's letter to Mr. Adams of December 12, 1818, written from Winyaw, S. C., while Pinckney was temporarily absent from Charleston, acknowledging Mr. Adams's request for the draft, (2) his letter of December 30, written from Charleston, transmitting the draft, and (3) the draft. The penmanship of all three papers is contemporaneous, and the letter of December 30 and the draft were written with the same pen and ink. This may possibly admit of a difference of opinion, because the draft is in a somewhat larger chirography than the letter, having been, as befitted its importance, written more carefully. But the letter and the draft are written upon the same paper, and this paper was not made when the convention sat in 1787. There are several sheets of the draft and one of the letter, and all bear the same water-mark--"Russell & Co. 1797." The draft cannot, therefore, claim to be the original Pinckney plan, and was palpably made for the occasion, from Mr. Pinckney's original notes doubtless, aided and modified by a copy of the Constitution itself. Thirty years had elapsed since the close of the Constitutional Convention when the draft was compiled, and its incorrectness is not a circumstance to occasion great wonder.[7] [7] See p. 19, n. Correspondence on the subject of the convention, written while it was in session, was not extensive, but some unpublished letters throwing light upon contemporaneous opinion have been found and are quoted in the notes. The editor desires to record his obligation for assistance in preparing these volumes to his friend, Montgomery Blair, Esq., of Silver Spring, Md. GAILLARD HUNT. CHERRY HILL FARM, VA., September, 1902. [Illustration] CHRONOLOGY OF JAMES MADISON. 1787. 1787. Prepares the "Virginia plan" in conjunction with the May 6-25. Virginia delegates. May 14. Attends the first gathering of the delegates. May 30. Moves postponement of question of representation by free population. Moves that congressional representation be proportioned to the importance and size of the States. Makes his first speech on this subject. May 31. Advocates representation in one house by popular election. Opposes uniting several States into one district for representation in Senate. Doubts practicability of enumerating powers of national legislature. Suggests the impossibility of using force to coerce individual States. June 1. Moves that the powers of the Executive be enumerated. June 2. Objects to giving Congress power to remove the President upon demand of a majority of the State legislatures. June 4. Favors giving power to more than a majority of the national legislature to overrule an Executive negative of a law. June 5. Opposes election of judges by both branches of Congress. Advocates submission of constitution to conventions of the people. Favors inferior judicial tribunals. June 6. Speaks for popular representation in the House. Seconds motion to include a portion of the Judiciary with the Executive in revisionary power over laws. June 7. Speaks for proportional representation in both houses of Congress. June 8. Seconds motion to give Congress power to negative State laws. Suggests temporary operation of urgent laws. June 12. Seconds motion to make term of Representatives three years. Thinks the people will follow the convention. Favors a term of seven years for Senators. June 13. Moves defining powers of Judiciary. Objects to appointment of judges by whole legislature. Thinks both houses should have right to originate money bills. Advocates a national government and opposes the "Jersey plan." June 21. Speaks in favor of national supremacy. Opposes annual or biennial elections of Representatives. June 22. Favors fixing payment of salaries by a standard. June 23. Proposes to debar Senators from offices created or enhanced during their term. Speaks for the proposition. June 25. Wishes to take up question of right of suffrage. June 26. Speaks for a long term for Senators. Opposes their payment by the States. June 28. Speaks for proportional representation. June 29. Insists that too much stress is laid on State sovereignty. June 30. Contends against equal State representation in the Senate. Speaks again on subject, but would preserve State rights. July 2. Opposes submission of the question to a special committee. July 5. Opposes compromise report of committee. July 6. Thinks part of report need not be postponed. July 7. Thinks question of representation ought to be settled before other questions. July 9. Suggests free inhabitants as basis of representation in one house, and all inhabitants as basis in the other house. July 10. Moves increase of Representatives. July 11. Favors representation based on population. July 14. Urges proportional representation as necessary to protect the smaller States. July 17. Advocates national power of negative over State laws. Thinks the branches of government should be kept separate. Thinks monarchy likely to follow instability. Thinks there should be provision for interregnum between adoption and operation of constitution. Moves national guarantee of States against domestic violence. July 18. Seconds motion forbidding a State to form any but a republican government. JOURNAL OF THE CONSTITUTIONAL CONVENTION OF 1787. Monday May 14^{th} 1787 was the day fixed for the meeting of the deputies in Convention for revising the federal System of Government. On that day a small number only had assembled. Seven States were not convened till, Friday 25 of May, when the following members appeared to wit: From _Massachusetts_, Rufus King. _N. York_, Robert Yates,[8] Alex^r Hamilton. _N. Jersey_, David Brearly, William Churchill Houston, William Patterson. _Pennsylvania_, Robert Morris, Thomas Fitzsimons, James Wilson, Governeur Morris. _Delaware_, George Read, Richard Basset,[9] Jacob Broome. _Virginia_, George Washington, Edmund Randolph, John Blair,[10] James Madison, George Mason, George Wythe, James McClurg. _N. Carolina_, Alexander Martin, William Richardson Davie, Richard Dobbs Spaight, Hugh Williamson. _S. Carolina_, John Rutlidge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler. _Georgia_, William Few.[11] [8] William Pierce, delegate from Georgia, made an estimate of each member of the convention, the only contemporary estimate thus far brought to light. Yates did not speak in the Convention. "M^r Yates is said to be an able Judge. He is a Man of great legal abilities, but not distinguished as an Orator. Some of his Enemies say he is an anti-federal Man, but I discovered no such disposition in him. He is about 45 years old, and enjoys a great share of health."--Pierce's Notes, _Am. Hist. Rev._, iii., 327. For more about Pierce's Notes, see p. 45, n. [9] "M^r Bassett is a religious enthusiast, lately turned Methodist, and serves his Country because it is the will of the people that he should do so. He is a Man of plain sense, and has modesty enough to hold his Tongue. He is Gentlemanly Man and is in high estimation among the Methodists. Mr. Bassett is about 36 years old."--Pierce's Notes, _Id._, iii., 330. He did not speak in the Convention. [10] "Mr. Blair is one of the most respectable Men in Virginia, both on account of his Family as well as fortune. He is one of the Judges of the Supreme Court in Virginia, and acknowledged to have a very extensive knowledge of the Laws. M^r Blair is however, no Orator, but his good sense, and most excellent principles, compensate for other deficiencies. He is about 50 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 331. He did not speak in the Convention. [11] "M^r Few possesses a strong natural Genius, and from application has acquired some knowledge of legal matters;--he practises at the bar of Georgia, and speaks tolerably well in the Legislature. He has been twice a Member of Congress, and served in that capacity with fidelity to his State, and honor to himself. Mr. Few is about 35 years of age."--Pierce's Notes, _Id._, iii., 333. He did not speak in the Convention. The credentials of Connecticut and Maryland required but one deputy to represent the state; of New York, South Carolina, Georgia, and New Hampshire, two deputies; of Massachusetts, New Jersey, Delaware, Virginia, and North Carolina, three; of Pennsylvania, four.--_Journal of the Federal Convention_, 16 _et seq._; _Documentary History of the Constitution_, i., 10 _et seq._ M^r Robert Morris[12] informed the members assembled that by the instruction & in behalf, of the deputation of Pen^a he proposed George Washington, Esq^r late Commander in chief for president of the Convention. M^r Jn^o Rutlidge seconded the motion; expressing his confidence that the choice would be unanimous, and observing that the presence of Gen^l Washington forbade any observations on the occasion which might otherwise be proper. [12] "Robert Morris is a merchant of great eminence and wealth; an able Financier, and a worthy Patriot. He has an understanding equal to any public object, and possesses an energy of mind that few Men can boast of. Although he is not learned, yet he is as great as those who are. I am told that when he speaks in the Assembly of Pennsylvania, that he bears down all before him. What could have been his reason for not Speaking in the Convention I know not,--but he never once spoke on any point. This Gentleman is about 50 years old."--Pierce's Notes, _Am. Hist: Rev._, iii., 328. [Illustration] [Illustration] General Washington[13] was accordingly unanimously elected by ballot, and conducted to the Chair by M^r R. Morris and M^r Rutlidge; from which in a very emphatic manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion. [13] "Gen^l Washington is well known as the Commander in chief of the late American Army. Having conducted these States to independence and peace, he now appears to assist in framing a Government to make the People happy. Like Gustavus Vasa, he may be said to be the deliverer of his Country;--like Peter the great he appears as the politician and the States-man; and like Cincinnatus he returned to his farm perfectly contented with being only a plain Citizen, after enjoying the highest honor of the confederacy,--and now only seeks for the approbation of his Country-men by being virtuous and useful. The General was conducted to the Chair as President of the Convention by the unanimous voice of its Members. He is in the 52^d year of his age."--Pierce's Notes, _Am. Hist. Rev._, iii., 331. (The nomination came with particular grace from Pe[~nn]a, as Doc^r Franklin alone could have been thought of as a competitor. The Doc^r was himself to have made the nomination of General Washington, but the state of the weather and of his health confined him to his house.) M^r Wilson[14] moved that a Secretary be appointed, and nominated M^r Temple Franklin. [14] "Mr. Wilson ranks among the foremost in legal and political knowledge. He has joined to a fine genius all that can set him off and show him to advantage. He is well acquainted with Man, and understands all the passions that influence him. Government seems to have been his peculiar Study, all the political institutions of the World he knows in detail, and can trace the causes and effects of every revolution from the earliest stages of the Greecian commonwealth down to the present time. No man is more clear, copious, and comprehensive than Mr. Wilson, yet he is no great Orator. He draws the attention not by the charm of his eloquence, but by the force of his reasoning. He is about 45 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 329. Col Hamilton[15] nominated Major Jackson. [15] "Col^o Hamilton is deservedly celebrated for his talents. He is a practitioner of the Law, and reputed to be a finished Scholar. To a clear and strong judgment he unites the ornaments of fancy, and whilst he is able, convincing, and engaging in his eloquence the Heart and Head sympathize in approving him. Yet there is something too feeble in his voice to be equal to the strains of oratory;--it is my opinion he is rather a convincing Speaker, that [than] a blazing Orator. Col^o Hamilton requires time to think,--he enquires into every part of his subject with the searchings of phylosophy, and when he comes forward he comes highly charged with interesting matter, there is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.--His language is not always equal, sometimes didactic like Bolingbroke's, at others light and tripping like Stern's. His eloquence is not so defusive as to trifle with the senses, but he rambles just enough to strike and keep up the attention. He is about 33 years old, of small stature, and lean. His manners are tinctured with stiffness, and sometimes with a degree of vanity that is highly disagreable."--Pierce's Notes, _Id._, iii., 327. On the ballot Maj^r Jackson had 5 votes & M^r Franklin 2 votes. On reading the credentials of the deputies it was noticed that those from Delaware were prohibited from changing the Article in the Confederation establishing an equality of votes among the States.[16] [16] "... So also and Provided, that such Alterations or further Provisions, or any of them, do not extend to that part of the Fifth Article of the Confederation of the said States, finally ratified on the first day March, in the Year One thousand seven hundred and eighty one, which declares that 'In determining Questions in the United States in Congress Assembled each State shall have one Vote.'"--_Documentary History of the Constitution_ (Dept. of State), i., 24. The appointment of a Committee, consisting of Mess^{rs} Wythe, Hamilton & C. Pinckney, on the motion of Mr. Pinckney, to prepare standing rules & orders was the only remaining step taken on this day. MONDAY MAY 28.---- From Mass^{ts} Nat: Gorham & Caleb Strong. From Connecticut Oliver Elseworth. From Delaware, Gunning Bedford. From Maryland James M^cHenry. From Penn^a B. Franklin, George Clymer, Th^s Mifflin & Jared Ingersol, took their seats.[17] [17] "Entre nous. I believe the Eastern people have taken ground they will not depart from respecting the Convention.--One legislature composed of a lower-house triennially elected and an _Executive & Senate_ for a good number of years.--I shall see Gerry & Johnson, as they pass & may perhaps give you a hint."--William Grayson to Madison, New York, May 24, 1787, _Mad. MSS._ M^r Wythe[18] from the Committee for preparing rules made a report which employed the deliberations of this day. [18] "M^r Wythe is the famous Professor of Law at the University of William and Mary. He is confessedly one of the most learned legal Characters of the present age. From his close attention to the study of general learning he has acquired a compleat knowledge of the dead languages and all the sciences. He is remarked for his exemplary life, and universally esteemed for his good principles. No Man it is said understands the history of Government better than M^r Wythe,--nor any one who understands the fluctuating condition to which all societies are liable better than he does, yet from his too favorable opinion of Men, he is no great politician. He is a neat and pleasing Speaker, and a most correct and able Writer. Mr. Wythe is about 55 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 331. M^r King[19] objected to one of the rules in the Report authorizing any member to call for the yeas & nays and have them entered on the minutes. He urged that as the acts of the Convention were not to bind the Constituents, it was unnecessary to exhibit this evidence of the votes; and improper as changes of opinion would be frequent in the course of the business & would fill the minutes with contradictions. [19] "M^r King is a Man much distinguished for his eloquence and great parliamentary talents. He was educated in Massachusetts, and is said to have good classical as well as legal knowledge. He has served for three years in the Congress of the United States with great and deserved applause, and is at this time high in the confidence and approbation of his Country-men. This Gentleman is about thirty three years of age, about five feet ten inches high, well formed, an handsome face, with a strong expressive Eye, and a sweet high toned voice. In his public speaking there is something peculiarly strong and rich in his expression, clear, and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal. His action is natural, swimming, and graceful, but there is a rudeness of manner sometimes accompanying it. But take him _tout en semble_, he may with propriety be ranked among the luminaries of the present Age."--Pierce's Notes, _Am. Hist. Rev._, iii., 325. Col. Mason[20] seconded the objection; adding that such a record of the opinions of members would be an obstacle to a change of them on conviction; and in case of its being hereafter promulged must furnish handles to the adversaries of the Result of the Meeting. [20] "Mr. Mason is a Gentleman of remarkable strong powers, and possesses a clear and copious understanding. He is able and convincing in debate, steady and firm in his principles, and undoubtedly one of the best politicians in America. M^r Mason is about 60 years old, with a fine strong constitution."--Pierce's Notes, _Id._, iii., 331. The proposed rule was rejected nem. contrad certe. The standing rules[21] agreed to were as follows:[22] [21] Previous to the arrival of a majority of the States, the rule by which they ought to vote in the Convention had been made a subject of conversation among the members present. It was pressed by Governeur Morris and favored by Robert Morris and others from Pennsylvania, that the large States should unite in firmly refusing to the small states an equal vote, as unreasonable, and as enabling the small States to negative every good system of Government, which must, in the nature of things, be founded on a violation of that equality. The members from Virginia, conceiving that such an attempt might beget fatal altercations between the large & small States, and that it would be easier to prevail on the latter, in the course of the deliberations, to give up their equality for the sake of an effective Government, than on taking the field of discussion to disarm themselves of the right & thereby throw themselves on the mercy of the larger States, discountenanced and stifled the project.--Madison's Note. [22] In the MS. Madison adds: "[See the Journal & copy here the printed rules]," and they were copied by him from the _Journal of the Federal Convention_ (_1819_). They have been compared with the MS. journal and found to be correct. Viz. A House to do business shall consist of the Deputies of not less than seven States; and all questions shall be decided by the greater number of these which shall be fully represented; but a less number than seven may adjourn from day to day. Immediately after the President shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the Secretary. Every member, rising to speak, shall address the President; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript--and of two members rising at the same time, the President shall name him who shall be first heard. A member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been silent, shall have been heard, if he choose to speak upon the subject. A motion made and seconded, shall be repeated, and if written, as it shall be when any member shall so require, read aloud by the Secretary, before it shall be debated; and may be withdrawn at any time, before the vote upon it shall have been declared. Orders of the day shall be read next after the minutes, and either discussed or postponed, before any other business shall be introduced. When a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate shall be received. [23]A question which is complicated, shall, at the request of any member, be divided, and put separately on the propositions of which it is compounded. [23] An undecided line is drawn through the page in the MS. from here to the end of the rules; but not, as it would appear, to strike them out, as they were actually adopted by the Convention. The determination of a question, altho' fully debated, shall be postponed, if the deputies of any State desire it until the next day. A writing which contains any matter brought on to be considered, shall be read once throughout for information, then by paragraphs to be debated, and again, with the amendments, if any, made on the second reading; and afterwards the question shall be put on the whole, amended, or approved in its original form, as the case shall be. Committees shall be appointed by ballot; and the members who have the greatest number of ballots, altho' not a majority of the votes present, shall be the Committee. When two or more members have an equal number of votes, the member standing first on the list in the order of taking down the ballots, shall be preferred. A member may be called to order by any other member, as well as by the President; and may be allowed to explain his conduct or expressions supposed to be reprehensible. And all questions of order shall be decided by the President without appeal or debate. Upon a question to adjourn for the day, which may be made at any time, if it be seconded, the question shall be put without a debate. When the House shall adjourn, every member shall stand in his place, until the President pass him. A letter from sundry persons of the State of Rho. Island addressed to the Honorable The Chairman of the General Convention was presented to the Chair by Mr. Gov^r Morris,[24] and being read, was ordered to lie on the table for further consideration.[25] [24] "M^r Governeur Morris is one of those Genius's in whom every species of talents combine to render him conspicuous and flourishing in public debate:--He winds through all the mazes of rhetoric, and throws around him such a glare that he charms, captivates, and leads away the senses of all who hear him. With an infinite streach of fancy he brings to view things when he is engaged in deep argumentation, that render all the labor of reasoning easy and pleasing. But with all these powers he is fickle and inconstant,--never pursuing one train of thinking,--nor ever regular. He has gone through a very extensive course of reading, and is acquainted with all the sciences. No Man has more wit,--nor can any one engage the attention more than M^r Morris. He was bred to the Law, but I am told he disliked the profession, and turned Merchant. He is engaged in some great mercantile matters with his namesake, M^r Rob^t Morris. This Gentleman is about 38 years old, he has been unfortunate in losing one of his Legs, and getting all the flesh taken off his right arm by a scald, when a youth."--Pierce's Notes, _Am. Hist. Rev._, iii., 329. [25] "NEWPORT June 18th 1787 "Sir-- "The inclosed address, of which I presume your Excellency has received a duplicate, was returned to me from New York after my arrival in this State. I flattered myself that our Legislature, which convened on monday last, would have receded from the resolution therein refer'd to, and have complied with the recommendation of Congress in sending deligates to the federal convention. The upper house, or Governor, & Council, embraced the measure, but it was negatived in the house of Assembly by a large majority, notwithstanding the greatest exertions were made to support it. "Being disappointed in their expectations, the minority in the administration and all the worthy citizens of this State, whose minds are well informd regreting the peculiarities of their Situation place their fullest confidence in the wisdom & moderation of the national council, and indulge the warmest hopes of being favorably consider'd in their deliberations. From these deliberations they anticipate a political System which must finally be adopted & from which will result the Safety, the honour, & the happiness of the United States. "Permit me, Sir, to observe, that the measures of our present Legislature do not exhibit the real character of the State. They are equally reprobated, & abhored by Gentlemen of the learned professions, by the whole mercantile body, & by most of the respectable farmers and mechanicks. The majority of the administration is composed of a licentious number of men, destitute of education, and many of them, Void of principle. From anarchy and confusion they derive their temporary consequence, and this they endeavor to prolong by debauching the minds of the common people, whose attention is wholly directed to the Abolition of debts both public & private. With these are associated the disaffected of every description, particularly those who were unfriendly during the war. Their paper money System, founded in oppression & fraud, they are determined to Support at every hazard. And rather than relinquish their favorite pursuit they trample upon the most sacred obligations. As a proof of this they refused to comply with a requisition of Congress for repealing all laws repugnant to the treaty of peace with Great Britain, and urged as their principal reason, that it would be calling in question the propriety of their former measures. "These evils may be attributed, partly to the extreme freedom of our own constitution, and partly to the want of energy in the federal Union: And it is greatly to be apprehended that they cannot Speedily be removed but by uncommon and very serious exertions. It is fortunate however that the wealth and resources of this State are chiefly in possion of the well Affected, & that they are intirely devoted to the public good. "I have the honor of being Sir, "with the greatest Veneration & esteem, "Your excellencys very obedient & "most humble servant-- ["J. M. VARNUM.] "His excellency "GEN^l WASHINGTON." The letter was inadvertently unsigned, but it was well known to come from General Varnum. The enclosure was as follows: "PROVIDENCE, May 11. 1787. "GENTLEMEN: "Since the Legislature of this State have finally declined sending Delegates to Meet you in Convention for the purposes mentioned in the Resolve of Congress of the 21^{st} February 1787, the Merchants Tradesmen and others of this place, deeply affected with the evils of the present unhappy times, have thought proper to Communicate in writing their approbation of your Meeting, And their regret that it will fall short of a Compleat Representation of the Federal Union.-- "The failure of this State was owing to the Nonconcurrence of the Upper House of Assembly with a Vote passed in the Lower House, for appointing Delegates to attend the said Convention, at their Session holden at Newport on the first Wednesday of the present Month.-- "It is the general Opinion here and we believe of the well informed throughout this State, that full power for the Regulation of the Commerce of the United States, both Foreign & Domestick ought to be vested in the National Council. "And that Effectual Arrangements should also be made for giving Operation to the present powers of Congress in their Requisitions upon the States for National purposes.-- "As the Object of this Letter is chiefly to prevent any impressions unfavorable to the Commercial Interest of this State, from taking place in our Sister States from the Circumstance of our being unrepresented in the present National Convention, we shall not presume to enter into any detail of the objects we hope your deliberations will embrace and provide for being convinced they will be such as have a tendency to strengthen the Union, promote Commerce, increase the power & Establish the Credit of the United States. "The result of your deliberations tending to these desireable purposes we still hope may finally be Approved and Adopted by this State, for which we pledge our Influence and best exertions.-- "In behalf of the Merchants, Tradesmen &c. "We have the Honour to be with perfect Consideration & Respect "Your most Obedient & "Most Humble Servant's "JOHN BROWN JABEZ BOWEN } THO^S LLOYD HALSEY NICHO^S BROWN } JOS. NIGHTINGALE JOHN JENCKES } LEVI HALL WELCOME ARNOLD } Comtee. PHILIP ALLEN WILLIAM RUSSELL } PAUL ALLEN JEREMIAH OLMY } WILLIAM BARTON } "The Hon^{ble} the Chairman of the General Convention "PHILADELPHIA" --_Const. MSS._ Both letters are printed in the _Documentary History of the Constitution_, i., 277 and 275. M^r Butler moved that the House provide ag^{st} interruption of business by absence of members,[26] and against licentious publications of their proceedings--to which was added by--M^r Spaight[27]--a motion to provide that on the one hand the House might not be precluded by a vote upon any question, from revising the subject matter of it, When they see cause, nor, on the other hand, be led too hastily to rescind a decision, which was the result of mature discussion.--Whereupon it was ordered that these motions be referred for the consideration of the Committee appointed to draw up the standing rules and that the Committee make report thereon. [26] "Mr. Butler is a character much respected for the many excellent virtues which he possesses. But as a politician or an Orator, he has no pretensions to either. He is a Gentleman of fortune, and takes rank among the first in South Carolina. He has been appointed to Congress, and is now a Member of the Legislature of South Carolina. M^r Butler is about 40 years of age; an Irishman by birth."--Pierce's Notes, _Am. Hist. Rev._, iii., 333. [27] "Mr. Spaight is a worthy Man, of some abilities, and fortune. Without possessing a Genius to render him brilliant, he is able to discharge any public trust that his Country may repose in him. He is about 31 years of age."--Pierce's Notes, _Id._, iii., 332. Adj^j till tomorrow 10. OClock. TUESDAY MAY 29. John Dickenson and Elbridge Gerry, the former from Delaware, the latter from Mass^{ts} took their seats. The following rules were added, on the report of M^r Wythe from the Committee-- That no member be absent from the House, so as to interrupt the representation of the State, without leave. That Committees do not sit whilst the House shall be or ought to be, sitting. That no copy be taken of any entry on the journal during the sitting of the House without leave of the House. That members only be permitted to inspect the journal. That nothing spoken in the House be printed, or otherwise published or communicated without leave. That a motion to reconsider a matter which has been determined by a majority, may be made, with leave unanimously given, on the same day on which the vote passed; but otherwise not without one day's previous notice: in which last case, if the House agree to the reconsideration, some future day shall be assigned for that purpose. M^r C. Pinkney[28] moved that a Committee be appointed to superintend the Minutes. [28] "Mr. Charles Pinckney is a young Gentleman of the most promising talents. He is, altho' only 24 y^s of age, in possession of a very great variety of knowledge. Government, Law, History, and Phylosophy are his favorite studies, but he is intimately acquainted with every species of polite learning, and has a spirit of application and industry beyond most Men. He speaks with great neatness and perspicuity, and treats every subject as fully, without running into prolixity, as it requires. He has been a Member of Congress, and served in that Body with ability and eclat."--Pierce's Notes, _Am. Hist. Rev._, iii., 333. M^r Gov^r Morris objected to it. The entry of the proceedings of the Convention belonged to the Secretary as their impartial officer. A committee might have an interest & bias in moulding the entry according to their opinions and wishes. The motion was negatived, 5 noes, 4 ays. Mr. Randolph[29] then opened the main business.[30] [29] "Mr. Randolph is Governor of Virginia,--a young Gentleman in whom unite all the accomplishments of the Scholar, and the Statesman. He came forward with the postulata, or first principles, on which the Convention acted, and he supported them with a force of eloquence and reasoning that did him great honor. He has a most harmonious voice, a fine person and striking manners. Mr. Randolph is about 32 years of age."--Pierce's Notes, _Id._, iii., 332. [30] In the MS. in Randolph's hand: "[here insert his speech including his resolutions]." The speech also is in Randolph's hand, having been furnished by him. He expressed his regret, that it should fall to him, rather than those, who were of longer standing in life and political experience, to open the great subject of their mission. But, as the convention had originated from Virginia, and his colleagues supposed that some proposition was expected from them, they had imposed this task on him. He then commented on the difficulty of the crisis, and the necessity of preventing the fulfilment of the prophecies of the American downfal. He observed that in revising the foederal system we ought to inquire 1. into the properties, which such a government ought to possess, 2. the defects of the confederation, 3. the danger of our situation & 4. the remedy. 1. The Character of such a government ought to secure 1. against foreign invasion: 2. against dissensions between members of the Union, or seditions in particular States: 3. to procure to the several States various blessings, of which an isolated situation was incapable: 4. to be able to defend itself against encroachment: & 5. to be paramount to the state constitutions. 2. In speaking of the defects of the confederation he professed a high respect for its authors, and considered them as having done all that patriots could do, in the then infancy of the science, of constitutions, & of confederacies,--when the inefficiency of requisitions was unknown--no commercial discord had arisen among any States--no rebellion had appeared as in Mass^{ts}--foreign debts had not become urgent--the havoc of paper money had not been foreseen--treaties had not been violated--and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty. He then proceeded to enumerate the defects. 1. that the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority--Of this he cited many examples; most of which tended to shew, that they could not cause infractions of treaties or of the law of nations to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money. 2, that the foederal government could not check the quarrels between states, nor a rebellion in any, not having constitutional power nor means to interpose according to the exigency. 3, that there were many advantages, which the U. S. might acquire, which were not attainable under the confederation--such as a productive impost--counteraction of the commercial regulations of other nations--pushing of commerce ad libitum,--&c &c. 4, that the foederal government could not defend itself against encroachments from the states. 5, that it was not even paramount to the state constitutions, ratified as it was in many of the states. 3. He next reviewed the danger of our situation, appealed to the sense of the best friends of the U. S. the prospect of anarchy from the laxity of government every where; and to other considerations. 4. He then proceeded to the remedy; the basis of which he said must be the republican principle. He proposed as conformable to his ideas the following resolutions, which he explained one by one. 1. Resolved that the articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, "common defence, security of liberty, and general welfare." 2. Res^d therefore that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases. 3. Res^d that the National Legislature ought to consist of two branches. 4. Res^d that the members of the first branch of the National Legislature ought to be elected by the people of the several States every ---- for the term of ----; to be of the age of ---- years at least, to receive liberal stipends by which they may be compensated for the devotion of their time to the public service; to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belong to the functions of the first branch, during the term of service, and for the space of ---- after its expiration; to be incapable of re-election for the space of ---- after the expiration of their term of service, and to be subject to recall. 5. Resol^d that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of ---- years at least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service; and to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the second branch, during the term of service; and for the space of ---- after the expiration thereof. 6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union ag^{st} any member of the Union failing to fulfil its duty under the articles thereof. 7. Res^d that a National Executive be instituted; to be chosen by the National Legislature for the term of ---- years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the Executive rights vested in Congress by the Confederation. 8. Res^d that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ---- of the members of each branch. 9. Res^d that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. That the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all Piracies & felonies on the high seas, captures from an enemy: cases in which foreigners or Citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenues; impeachments of any national officers, and questions which may involve the national peace and harmony. 10. Resolv^d that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of Government & Territory or otherwise, with the consent of a number of voices in the National Legislature less than the whole. 11. Res^d that a Republican Government & the territory of each State, except in the instance of a voluntary junction of Government & territory, ought to be guarantied by the United States to each State. 12. Res^d that provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day after the reform of the articles of Union shall be adopted, and for the completion of all their engagements. 13. Res^d that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto. 14. Res^d that the Legislative Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union. 15. Res^d that the amendments which shall be offered to the Confederation, by the Convention ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people to consider & decide thereon. He concluded with an exhortation, not to suffer the present opportunity of establishing general peace, harmony, happiness and liberty in the U. S. to pass away unimproved.[31] [31] This abstract of the speech was furnished to J. M. by M^r Randolph and is in his handwriting. As a report of it from him had been relied on, it was omitted by J. M.--_Madison's Note._ The fifteen resolutions, constituting the "Virginia Plan," are in Madison's handwriting. It was then Resolved--That the House will tomorrow resolve itself into a Committee of the Whole House to consider of the state of the American Union--and that the propositions moved by M^r Randolph be referred to the said Committee. M^r Charles Pinkney laid before the House the draft of a federal Government which he had prepared, to be agreed upon between the free and independent States of America.[32]--M^r P. plan ordered that the same be referred to the Committee of the Whole appointed to consider the state of the American Union.[33] [32] Robert Yates, delegate from New York, kept notes of the proceedings of the Convention, until he left July 5th, with his colleague, John Lansing. They wrote a joint letter to Governor Clinton afterwards, giving their reasons: "We were not present at the completion of the new constitution; but before we left the convention, its principles were so well established as to convince us, that no alteration was to be expected to conform it to our ideas of expediency and safety."--_Secret Proceedings of the Federal Convention_, 10. Yates's notes are quoted here, whenever they are at variance with Madison's. He gives Pinckney's motion as follows: "Mr. C. Pinckney, a member from South Carolina, then added, that he had reduced his ideas of a new government to a system, which he read, and confessed that it was grounded on the same principle as of the above [the Randolph] resolutions."--_Id._, 97. [33] Charles Pinckney wrote to John Quincy Adams: "WINGAW NEAR GEORGETOWN December 12 1818 "SIR "I have just had the honour to receive your favour--Being at present absent from Charleston on a visit to my planting interest in this neighbourhood I shall in consequence of your letter shorten my stay here considerably & return to Town for the purpose of complying with your request as soon as possible--From an inspection of my old papers not long ago I know it was then easily in my power to have complied with your request--I still hope it is & as soon as I return to my residence in Charleston will again, or as quickly as I can write you on it to prevent delay. "The Draught of the Constitution proposed by me was divided into a number of articles & was in complete detail--the resolutions offered by M^r Randolph were merely general ones & as far as I recollect they were both referred to the same Committee. "With great respect & esteem" &c. --_Dept. of State MSS._, Miscellaneous Letters. Three weeks later he wrote again: "SIR "On my return to this City as I promised I examined carefully all the numerous notes & papers which I had retained relating to the federal Convention--among them I found several rough draughts of the Constitution I proposed to the Convention--although they differed in some measure from each other in the wording & arrangement of the articles--yet they were all substantially the same--they all proceeded upon the idea of throwing out of view the attempt to amend the existing Confederation (then a very favorite idea of a number) & proceeding de novo--of a Division of the Powers of Government into legislative executive & judicial & of making the Government to operate directly upon the People & not upon the States. My Plan was substantially adopted in the sequel except as to the Senate & giving more power to the Executive than I intended--the force of vote which the small & middling states had in the Convention prevented our obtaining a proportional representation in more than one branch & the great powers given to the President were never intended to have been given to him while the Convention continued in that patient & coolly deliberative situation in which they had been for nearly the whole of the preceding five months of their session nor was it until within the last week or ten days that almost the whole of the Executive Department was altered--I can assure you as a fact that for more than Four months & a half out of five the power of exclusively making treaties, appointing for the Ministers & judges of the Supreme Court was given to the Senate after numerous debates & consideration of the subject both in Committee of the whole & in the house--this I not only aver but can prove by printed Documents in my possession to have been the case--& should I ever have the pleasure to see you & converse on the subject will state to you some things relative to this business that may be new & perhaps surprising to you--the veil of secrecy from the Proceedings of the Convention being removed by Congress & but very few of the members alive would make disclosures now of the secrets there acted less improper than before--With the aid of the journal & the numerous notes & memorandums I have preserved should now be in my power to give a View of the almost insuperable difficulties the Convention had to encounter & of the conflicting opinions of the members I believe should have attempted it had I not always understood M^r Madison intended it--he alone I believe possessed & retained more numerous & particular notes of their proceedings than myself. I will thank you sir to do me the honour to send me or to get the President to direct a copy of the Journal of the Convention to be sent me as also of the Secret Journals of Congress should it be considered not improper in me to make the request. "I have already informed you I have several rough draughts of the Constitution I proposed & that they are all substantially the same differing only in words & the arrangement of the Articles--at the distance of nearly thirty two years it is impossible for me now to say which of the 4 or 5 draughts I have was the one but enclosed I send you the one I believe was it--I repeat however that they are substantially the same differing only in form & unessentials--It may be necessary to remark that very soon after the Convention met I changed & avowed candidly the change of my opinion on giving the power to Congress to revise the State Laws in certain cases & in giving the exclusive Power to the Senate to declare War thinking it safer to refuse the first altogether & to vest the latter in Congress--I will thank you to acknowledge by a line the receipt of the Draught & this. "With very great respect & esteem "I have the honour to be your most "Obedient servant "CHARLES PINCKNEY. "December 30 1818 "In Charleston."--_Const. MSS._ The plan is written upon paper of the same size as the letter, and with the same ink. It is undoubtedly contemporaneous with the letter. Madison wrote the following note to accompany his journal: "The length of the Document laid before the Convention, and other circumstances having prevented the taking of a copy at the time, that which is here inserted was taken from the paper furnished to the Secretary of State, and contained in the Journal of the Convention published in 1819. On comparing the paper with the Constitution in its final form, or in some of its Stages; and with the propositions, and speeches of M^r Pinckney in the Convention, it would seem that considerable errour must have crept into the paper; occasioned possibly by the loss of the Document laid before the convention (neither that nor the Resolutions offered by M^r Patterson being among the preserved papers) and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the convention, might be confounded with the original text, and after a lapse of more than thirty years, confounded also in the memory of the author. "There is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modifications that can not be ascribed to accident or anticipation. "Examples may be noticed in Article VIII of the paper; which is remarkable also for the circumstance, that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer, nor indeed for the appointment of any executive magistracy; notwithstanding the evident purpose of the author to provide an _entire_ plan of a Federal Government. "Again, in several instances where the paper corresponds with the Constitution, it is at variance with the ideas of M^r Pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the Journal of the Convention, the latter in the report of its debates: Thus in Art: VIII of the paper, provision is made for removing the President by impeachment; when it appears that in the convention, July 20. he was opposed to any impeachability of the Executive magistrate: In Art: III, it is required that all money-bills shall originate in the first Branch of the Legislature; which he strenuously opposed Aug: 8 and again Aug: 11: In Art: V members of each House are made ineligible to, as well as incapable of holding, any office under the union &c. as was the case at one Stage of the Constitution; a disqualification highly disapproved and opposed by him Aug: 14. "A still more conclusive evidence of errour in the paper is seen in Art: III, which provides, as the Constitution does, that the first Branch of the Legislature shall be chosen by the people of the several States; whilst it appears that on the 6^{th} of June, a few days only after the Draft was laid before the convention, its author opposed that mode of choice, urging & proposing in place of it, an election by the Legislatures of the several States. "The remarks here made tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this Record of the proceedings of a Publick Body, so much an object, sometimes, of curious research, as at all times, of profound interest."--_Mad. MSS._ This note, as given in Gilpin's _Madison Papers_ (_1840_), is freely edited. The Pinckney plan is given here as Pinckney sent it to Adams. Chief-Justice Charles C. Nott, of the U. S. Court of Claims, informs the editor that correspondence with Pinckney's descendants reveals the fact that none of the notes to which he alludes in his letters are extant. The letter of December 30, 1818, and plan, are printed in _The Documentary History of the Constitution_, i., 309 _et seq._ [Illustration: CHARLES PINCKNEY'S LETTER. (Reduced.)] [Illustration: THE PINCKNEY DRAFT. (Reduced.)] We the People of the States of New Hampshire Massachusetts Rhode Island & Providence Plantations Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina & Georgia do ordain, declare & establish the following Constitution for the government of ourselves & Posterity. ARTICLE 1: The Style of this Government shall be The United States of America & the Government shall consist of supreme legislative Executive & judicial Powers. 2 The Legislative Power shall be vested in a Congress to consist of two separate Houses--one to be called the House of Delegates & the other the Senate who shall meet on the ---- ---- Day of ---- in every year. 3 The members of the House of Delegates shall be chosen every ---- year by the people of the several States & the qualification of the electors shall be the same as those of the electors in the several States for their legislatures--each member shall have been a citizen of the United States for ---- years; and shall be of ---- years of age & a resident in the State he is chosen for.----Until a census of the people shall be taken in the manner herein after mentioned the House of Delegates shall consist of ---- to be chosen from the different States in the following proportions: for New Hampshire, ----; for Massachusetts, ---- for Rhode Island, ---- for Connecticut, ---- for New York, ---- for New Jersey, ---- for Pennsylvania, ---- for Delaware, ---- for Mary^{ld}, ---- for Virginia, ---- for North Carolina, ---- for South Carolina, ---- for Georgia, ---- & the Legislature shall hereafter regulate the number of delegates by the number of inhabitants according to the Provisions herein after made, at the rate of one for every ---- thousand.--All money bills of every kind shall originate in the house of Delegates & shall not be altered by the Senate. The House of Delegates shall exclusively possess the power of impeachment & shall choose it's own officers & vacancies therein shall be supplied by the executive authority of the State in the representation from which they shall happen. 4 The Senate shall be elected & chosen by the House of Delegates which House immediately after their meeting shall choose by ballot ---- Senators from among the Citizens & residents of New Hampshire ---- from among those of Massachusetts ---- from among those of Rhode Island ---- from among those of Connecticut ---- from among those of New York ---- from among those of New Jersey ---- from among those of Pennsylvania ---- from among those of Delaware ---- from among those of Maryland ---- from among those of Virginia ---- from among those of North Carolina ---- from among those of South Carolina & ---- from among those of Georgia ---- The Senators chosen from New Hampshire Massachusetts Rhode Island & Connecticut shall form one class--those from New York New Jersey Pennsylvania & Delaware one class--& those from Maryland Virginia North Carolina South Carolina & Georgia one class. The House of Delegates shall number these Classes one two & three & fix the times of their service by Lot--the first class shall serve for ---- years--the second for ---- years & the third for ---- years--as their times of service expire the House of Delegates shall fill them up by elections for ---- years & they shall fill all vacancies that arise from death or resignation for the time of service remaining of the members so dying or resigning. Each Senator shall be ---- years of age at least--shall have been a Citizen of the United States 4 years before his election & shall be a resident of the State he is chosen from. The Senate shall choose its own Officers. 5 Each State shall prescribe the time & manner of holding elections by the People for the house of Delegates & the House of Delegates shall be the judges of the elections returns & Qualifications of their members. In each house a Majority shall constitute a Quorum to do business--Freedom of Speech & Debate in the legislature shall not be impeached or Questioned in any place out of it & the Members of both Houses shall in all cases except for Treason Felony or Breach of the Peace be free from arrest during their attendance at Congress & in going to & returning from it--Both Houses shall keep journals of their Proceedings & publish them except on secret occasions & the yeas & nays may be entered thereon at the desire of one ---- of the members present. Neither house without the consent of the other shall adjourn for more than ---- days nor to any Place but where they are sitting. The members of each house shall not be eligible to or capable of holding any office under the Union during the time for which they have been respectively elected nor the members of the Senate for one year after. The members of each house shall be paid for their services by the States which they represent. Every bill which shall have passed the Legislature shall be presented to the President of the United States for his revision--if he approves it he shall sign it--but if he does not approve it he shall return it with his objections to the house it originated in which house if two thirds of the members present, notwithstanding the President's objections agree to pass it, shall send it to the other house with the President's objections, where if two thirds of the members present also agree to pass it, the same shall become a law--& all bills sent to the President & not returned by him within ---- days shall be laws unless the Legislature by their adjournment prevent their return in which case they shall not be laws. 6^{th} The Legislature of the United States shall have the power to lay & collect Taxes Duties Imposts & excises To regulate Commerce with all nations & among the several States. To borrow money & emit bills of Credit To establish Post offices. To raise armies To build & equip Fleets To pass laws for arming organizing & disciplining the Militia of the United States To subdue a rebellion in any State on application of its legislature To coin money & regulate the Value of all coins & fix the Standard of Weights & measures To provide such Dock Yards & arsenals & erect such fortifications as may be necessary for the United States & to exercise exclusive Jurisdiction therein To appoint a Treasurer by ballot To constitute Tribunals inferior to the Supreme Court To establish Post & military Roads To establish & provide for a national University at the Seat of the Government of the United States To establish uniform rules of Naturalization To provide for the establishment of a Seat of Government for the United States not exceeding ---- miles square in which they shall have exclusive jurisdiction To make rules concerning Captures from an Enemy To declare the law & Punishment of piracies & felonies at sea & of counterfeiting Coin & of all offences against the Laws of Nations To call forth the aid of the Militia to execute the laws of the Union enforce treaties suppress insurrections and repel invasions And to make all laws for carrying the foregoing powers into execution. The Legislature of the United States shall have the Power to declare the Punishment of Treason which shall consist only in levying War against the United States or any of them or in adhering to their Enemies. No person shall be convicted of Treason but by the testimony of two witnesses. The proportion of direct taxation shall be regulated by the whole number of inhabitants of every description which number shall within ---- years after the first meeting of the Legislature & within the term of every ---- year after be taken in the manner to be prescribed by the Legislature No Tax shall be laid on articles exported from the States--nor capitation tax but in proportion to the Census before directed All Laws regulating Commerce shall require the assent of two thirds of the members present in each house--The United States shall not grant any title of Nobility--The Legislature of the United States shall pass no Law on the subject of Religion, nor touching or abridging the Liberty of the Press nor shall the privilege of the writ of Habeas Corpus ever be suspended except in case of Rebellion or Invasion. All acts made by the Legislature of the United States pursuant to this Constitution & all Treaties made under the authority of the United States shall be the supreme Law of the land & all Judges shall be bound to consider them as such in their decisions. 7 The Senate shall have the sole & exclusive power to declare War & to make treaties & to appoint Ambassadors & other Ministers to foreign nations & Judges of the Supreme Court. They shall have the exclusive power to regulate the manner of deciding all disputes & controversies now subsisting or which may arise between the States respecting Jurisdiction or Territory. 8 The Executive Power of the United States shall be vested in a President of the United States of America which shall be his style & his title shall be His Excellency. He shall be elected for ---- years & shall be reeligible. He shall from time to time give information to the Legislature of the state of the Union & recommend to their consideration the measures he may think necessary--he shall take care that the laws of the United States be duly executed: he shall commission all the officers of the United States & except as to Ambassadors other ministers and Judges of the Supreme Court he shall nominate & with the consent of the Senate appoint all other officers of the United States. He shall receive public Ministers from foreign nations & may correspond with the Executives of the different States. He shall have power to grant pardons & reprieves except in impeachments--He shall be Commander in chief of the army & navy of the United States & of the Militia of the several States & shall receive a compensation which shall not be increased or diminished during his continuance in office. At entering on the Duties of his office he shall take an oath faithfully to execute the duties of a President of the United States.--He shall be removed from his office on impeachment by the house of Delegates & Conviction in the Supreme Court of Treason bribery or Corruption--In case of his removal death resignation or disability the President of the Senate shall exercise the duties of his office until another President be chosen--& in case of the death of the President of the Senate the Speaker of the House of Delegates shall do so. 9 The Legislature of the United States shall have the Power and it shall be their duty to establish such Courts of Law Equity & Admiralty as shall be necessary--The Judges of the Courts shall hold their offices during good behaviour & receive a compensation, which shall not be increased or diminished during their continuance in office--One of these Courts shall be termed the Supreme Court whose jurisdiction shall extend to all cases arising under the laws of the United States or affecting ambassadors other public Ministers & Consuls--to the trial of impeachment of officers of the United States--to all cases of Admiralty & maritime jurisdiction--In cases of impeachment affecting ambassadors and other public Ministers this Jurisdiction shall be original & in all other cases appellate---- All criminal offences (except in cases of impeachment) shall be tried in the State where they shall be committed--the trials shall be open & public & shall be by Jury. 10 Immediately after the first census of the people of the United States the House of Delegates shall apportion the Senate by electing for each State out of the citizens resident therein one Senator for every ---- members each State shall have in the House of Delegates--Each State shall be entitled to have at least one member in the Senate. 11 No State shall grant letters of marque & reprisal or enter into treaty or alliance or confederation nor grant any title of nobility nor without the Consent of the Legislature of the United States lay any impost on imports--nor keep troops or Ships of War in time of peace--nor enter into compacts with other States or foreign powers or emit bills of Credit or make any thing but Gold Silver or Copper a tender in payment of debts nor engage in War except for self defence when actually invaded or the danger of invasion be so great as not to admit of a delay until the Government of the United States can be informed thereof--& to render these prohibitions effectual the Legislature of the United States shall have the power to revise the laws of the several States that may be supposed to infringe the Powers exclusively delegated by this Constitution to Congress & to negative & annul such as do. 12 The Citizens of each State shall be entitled to all privileges & immunities of Citizens in the several States--Any person charged with Crimes in any State fleeing from justice to another shall on demand of the Executive of the State from which he fled be delivered up & removed to the State having jurisdiction of the offence. 13 Full faith shall be given in each State to the acts of the Legislature & to the records & judicial Proceedings of the Courts & magistrates of every State. 14 The Legislature shall have power to admit new States into the Union on the same terms with the original States provided two thirds of the members present in both Houses agree. 15 On the application of the legislature of a State the United States shall protect it against domestic insurrection. 16 If two thirds of the Legislatures of the States apply for the same the Legislature of the United States shall call a Convention for the purpose of amending the Constitution--or should Congress, with the Consent of two thirds of each house, propose to the States amendments to the same--the agreement of two thirds of the Legislatures of the States shall be sufficient to make the said amendments parts of the Constitution. The Ratification of the conventions of ---- States shall be sufficient for organizing this Constitution.[34] [34] "... What will be the result of their meeting I cannot with any certainty determine, but I hardly think much good can come of it; the people of America don't appear to me to be ripe for any great innovations & it seems they are ultimately to ratify or reject: the weight of Gen^l Washington as you justly observe is very great in America, but I hardly think it is sufficient to induce the people to pay money or part with power. "The delegates from the Eastw^d are for a very strong government, & wish to prostrate all y^e State legislatures, & form a general system out of y^e whole; but I don't learn that the people are with them, on y^e contrary in Massachusetts they think that government too strong, & are about rebelling again, for the purpose of making it more democratical: In Connecticut they have rejected the requisition for y^e present year decidedly, & no Man there would be elected to the office of a constable if he was to declare that he meant to pay a copper towards the domestic debt:--R. Island has refused to send members--the cry there is for a good government after they have paid their debts in depreciated paper:--first demolish the Philistines (i. e. their creditors) then for _propiety_. "N. Hampshire has not paid a shilling, since peace, & does not ever mean to pay on to all eternity:--if it was attempted to tax the people for y^e domestic debt 500 Shays would arise in a fortnight.--In N. York they pay well because they can do it by plundering N. Jersey & Connecticut.--Jersey will go great lengths from motives of revenge and Interest: Pensylvany will join provided you let the sessions of the Executive of America be fixed in Philad^a & give her other advantages in trade to compensate for the loss of State power. I shall make no observations on the Southern States, but I think they will be (perhaps from different motives) as little disposed to part with efficient power as any in the Union...."--William Grayson to James Monroe, New York, May 29, 1787. _Monroe MSS._ Adjourned. WEDNESDAY MAY 30. Roger Sherman (from Connecticut) took his seat. The House went into Committee of the Whole on the State of the Union. M^r Gorham was elected to the Chair by Ballot. The propositions of M^r Randolph which had been referred to the Co[~m]ittee being taken up. He moved on the suggestion of M^r G. Morris, that the first of his propositions to wit "Resolved that the articles of Confederation ought to be so corrected & enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty, and general welfare,--should be postponed, in order to consider the 3 following: 1. that a union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, namely common defence, security of liberty, & gen^l welfare. 2. that no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient. 3. that a _national_ Government ought to be established consisting of a _supreme_ Legislative, Executive & Judiciary. The motion for postponing was seconded by M^r Gov^r Morris and unanimously agreed to. Some verbal criticisms were raised ag^{st} the first proposition, and it was agreed on motion of M^r Butler seconded by M^r Randolph, to pass on to the third, which underwent a discussion, less however on its general merits than on the force and extent of the particular terms _national & supreme_. M^r Charles Pinkney wished to know of M^r Randolph, whether he meant to abolish the State Govern^{ts} altogether. M^r R. replied that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view. M^r Butler said he had not made up his mind on the subject, and was open to the light which discussion might throw on it. After some general observations he concluded with saying that he had opposed the grant of powers to Cong^s heretofore, because the whole power was vested in one body. The proposed distribution of the powers into different bodies changed the case, and would induce him to go great lengths. Gen^l Pinkney[35] expressed a doubt whether the act of Cong^s reco[~m]ending the Convention, or the Commissions of the Deputies to it, could authorize a discussion of a system founded on different principles from the federal Constitution. [35] "M^r Ch^s Cotesworth Pinckney is a Gentleman of Family and fortune in his own State. He has received the advantage of a liberal education, and possesses a very extensive degree of legal knowledge. When warm in a debate he sometimes speaks well,--but he is generally considered an indifferent Orator. Mr. Pinckney was an Officer of high rank in the American Army, and served with great reputation through the War. He is now about 40 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 333. M^r Gerry[36] seemed to entertain the same doubt. [36] "M. Gerry's character is marked for integrity and perseverance. He is a hesitating and laborious speaker;--possesses a great degree of confidence and goes extensively into all subjects that he speaks on, without respect to elegance or flower of diction. He is connected and sometimes clear in his arguments, conceives well, and cherishes as his first virtue, a love for his Country. Mr. Gerry is very much of a Gentleman in his principles and manners;--he has been engaged in the mercantile line and is a Man of property. He is about 37 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 325. M^r Gov^r Morris explained the distinction between a _federal_ and _national_, _supreme_, Gov^t; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and _compulsive_ operation. He contended that in all Communities there must be one supreme power, and one only. M^r Mason observed that the present confederation was not only deficient in not providing for coercion & punishment ag^{st} delinquent States; but argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Gov^t was necessary as could directly operate on individuals, and would punish those only whose guilt required it. M^r Sherman[37] who took his seat today, admitted that the Confederation had not given sufficient power to Cong^s and that additional powers were necessary; particularly that of raising money which he said would involve many other powers. He admitted also that the General & particular jurisdictions ought in no case to be concurrent. He seemed however not to be disposed to make too great inroads on the existing system; intimating as one reason, that it would be wrong to lose every amendment, by inserting such as would not be agreed to by the States. [37] "M^r Sherman exhibits the oddest shaped character I ever remember to have met with. He is awkward, un-meaning, and unaccountably strange in his manner. But in his train of thinking there is something regular, deep, and comprehensive; yet the oddity of his address, the vulgarisms that accompany his public speaking, and that strange new England cant which runs through his public as well as his private speaking make everything that is connected with him grotesque and laughable;--and yet he deserves infinite praise,--no Man has a better Heart or a clearer Head. If he cannot embellish he can furnish thoughts that are wise and useful. He is an able politician and extremely artful in accomplishing any particular object;--it is remarked that he seldom fails. I am told he sits on the Bench in Connecticut, and is very correct in the discharge of his Judicial functions. In the early part of his life he was a Shoe-maker;--but despising the lowness of his condition, he turned Almanack maker, and so progressed upwards to a Judge. He has been several years a Member of Congress, and discharged the duties of his Office with honor and credit to himself, and advantage to the State he represented. He is about 60."--Pierce's Notes, _Am. Hist. Rev._, iii., 326. It was moved by M^r Read,[38] 2^{ded} by M^r Ch^s Cotesworth Pinkney, to postpone the 3^d proposition last offered by M^r Randolph viz that a national Government ought to be established consisting of a supreme Legislative Executive and Judiciary, in order to take up the following,--viz. "Resolved that in order to carry into execution the Design of the States in forming this Convention, and to accomplish the objects proposed by the Confederation a more effective Government consisting of a Legislative, Executive and Judiciary, ought to be established." The motion to postpone for this purpose was lost: Yeas. Massachusetts, Connecticut, Delaware, S. Carolina--4. Nays. N. Y. Pennsylvania, Virginia, North Carolina--4. [38] "M^r Read is a Lawyer and a Judge;--his legal abilities are said to be very great, but his powers of Oratory are fatiguing and tiresome to the last degree;--his voice is feeble and his articulation so bad that few can have patience to attend to him. He is a very good Man, and bears an amiable character with those who know him. Mr. Read is about 50, of a low stature, and a weak constitution."--Pierce's Notes, _Id._, iii., 330. On the question as moved by M^r Butler, on the third proposition it was resolved in Committee of whole that a national govern^t ought to be established consisting of a supreme Legislative Executive & Judiciary,--Mass^{ts} being ay.--Connect.--no. N. York divided (Col. Hamilton ay. M^r Yates no.) Pen^a ay. Delaware ay. Virg^a ay. N. C. ay. S. C. ay. The following Resolution, being the 2^d of those proposed by M^r Randolph was taken up, viz.--"that the rights of suffrage in the National Legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases." M^r Madison[39] observing that the words, "_or to the number of free inhabitants_," might occasion debates which would divert the Committee from the general question whether the principle of representation should be changed, moved that they might be struck out. [39] "Mr. Madison is a character who has long been in public life; and what is very remarkable every Person seems to acknowledge his greatness. He blends together the profound politician, with the Scholar. In the management of every great question he evidently took the lead in the Convention, and tho' he cannot be called an Orator, he is a most agreeable, eloquent, and convincing Speaker. From a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed Man of any point in debate. The affairs of the United States, he perhaps, has the most correct knowledge of, of any Man in the Union. He has been twice a Member of Congress, and was always thought one of the ablest Members that ever sat in that Council. Mr. Maddison is about 37 years of age, a Gentleman of great modesty,--with a remarkable sweet temper. He is easy and unreserved among his acquaintance, and has a most agreeable style of conversation."--Pierce's Notes, _Am. Hist. Rev._, iii., 331. M^r King observed that the quotas of contribution which would alone remain as the measure of representation, would not answer, because waving every other view of the matter, the revenue might hereafter be so collected by the General Gov^t that the sums respectively drawn from the States would not appear, and would besides be continually varying. M^r Madison admitted the propriety of the observation, and that some better rule ought to be found. Col. Hamilton moved to alter the resolution so as to read "that the rights of suffrage in the national Legislature ought to be proportioned to the number of free inhabitiants." M^r Spaight 2^{ded} the motion. It was then moved that the Resolution be postponed, which was agreed to. M^r Randolph and M^r Madison then moved the following resolution--"that the rights of suffrage in the national Legislature ought to be proportioned." It was moved and 2^{ded} to amend it by adding "and not according to the present system"--which was agreed to. It was then moved & 2^{ded} to alter the resolution so as to read "that the rights of suffrage in the national Legislature ought not to be according to the present system." It was then moved & 2^{ded} to postpone the Resolution moved by M^r Randolph & M^r Madison, which being agreed to: M^r Madison, moved, in order to get over the difficulties, the following resolution--"that the equality of suffrage established by the articles of Confederation ought not to prevail in the national Legislature, and "that an equitable ratio of representation ought to be substituted." This was 2^{ded} by M^r Gov^r Morris, and being generally relished, would have been agreed to; when, M^r Reed moved that the whole clause relating to the point of Representation be postponed; reminding the Com^e that the deputies from Delaware were restrained by their co[~m]ission from assenting to any change of the rule of suffrage, and in case such a change should be fixed on, it might become their duty to retire from the Convention. M^r Gov^r Morris observed that the valuable assistance of those members could not be lost without real concern, and that so early a proof of discord in the Convention as the secession of a State, would add much to the regret; that the change proposed was however so fundamental an article in a national Gov^t, that it could not be dispensed with. M^r Madison observed that whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States, it must cease when a National Governm^t should be put into the place. In the former case, the acts of Cong^s depended so much for their efficacy on the cooperation of the States, that these had a weight both within & without Congress, nearly in proportion to their extent and importance. In the latter case, as the acts of the Gen^l Gov^t would take effect without the intervention of the State legislatures, a vote from a small State w^d have the same efficacy & importance as a vote from a large one, and there was the same reason for different numbers of representatives from different States, as from Counties of different extents within particular States. He suggested as an expedient for at once taking the sense of the members on this point and saving the Delaware deputies from embarrassment, that the question should be taken in Committee, and the clause on report to the House, be postponed without a question there. This however did not appear to satisfy Mr. Read. By several it was observed that no just construction of the Act of Delaware, could require or justify a secession of her deputies, even if the resolution were to be carried thro' the House as well as the Committee. It was finally agreed however that the clause should be postponed: it being understood that in the event the proposed change of representation would certainly be agreed to, no objection or difficulty being started from any other quarter than from Delaware. The motion of Mr. Read to postpone being agreed to, The Committee then rose. The Chairman reported progress, and the House having resolved to resume the subject in Committee to-morrow, Adjourned to 10 O Clock. THURSDAY MAY 31[40] [40] "This day the state of New Jersey was represented, so that there were now ten states in Convention."--Yates, _Secret Proceedings_, etc., 99. But in the _Journal of the Federal Convention (1819)_, as in Madison's account, New Jersey is entered as present May 25th. On May 30 two votes are recorded by Madison and in the _Journal_ without New Jersey. It is probable that an error was made in the _Journal_ and that Madison followed it. William Pierce, from Georgia took his seat.[41] [41] Rufus King kept a few notes of the proceedings of the convention from May 31st to August 8th. They are meagre, but corroborate Madison's report. See King's _Life and Correspondence of Rufus King_, i., 587. Pierce also kept a few rough notes of the proceedings which were printed in the _Savannah Georgian_, April 19, 21, 22, 23, 24, 25, 26, and 28, 1828, and reprinted in _The American Historical Review_, iii., 317 _et seq._ They throw little additional light on the debates, but wherever they do are quoted here, as are King's. In Committee of the whole on Mr. Randolph's propositions. The 3^d Resolution "that the national Legislature ought to consist of two branches" was agreed to without debate or dissent, except that of Pennsylvania, given probably from complaisance to Doc^r Franklin who was understood to be partial to a single House of Legislation. Resol: 4. first clause, "that the members of the first branch of the National Legislature ought to be elected by the people of the several States," being taken up, M^r Sherman opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled. M^r Gerry. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Mass^{ts} it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of Governm^t. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamour in Mass^{ts} for the reduction of salaries and the attack made on that of the Gov^r though secured by the spirit of the Constitution itself. He had he said been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levelling spirit. M^r Mason argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the Gov^t. It was, so to speak, to be our House of Commons--It ought to know & sympathize with every part of the community; and ought therefore to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it, which had in several instances particularly in Virg^a, different interests and views arising from difference of produce, of habits &c &c. He admitted that we had been too democratic but was afraid we s^d incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people. He had often wondered at the indifference of the superior classes of society to this dictate of humanity & policy, considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of Society. Every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens. M^r Wilson contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people. In a republican Government this confidence was peculiarly essential. He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the national Legislature. All interference between the general and local Governm^{ts} should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceeded much more from the officers of the States, than from the people at large. M^r Madison considered the popular election of one branch of the national Legislature as essential to every plan of free Government. He observed that in some of the States one branch of the Legislature was composed of men already removed from the people by an intervening body of electors. That if the first branch of the general legislature should be elected by the State Legislatures, the second branch elected by the first--the Executive by the second together with the first; and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. He was an advocate for the policy of refining the popular appointments by successive filtrations, but thought it might be pushed too far. He wished the expedient to be resorted to only in the appointment of the second branch of the Legislature, and in the Executive & judiciary branches of the Government. He thought too that the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the Legislatures. M^r Gerry did not like the election by the people. The maxims taken from the British Constitution were often fallacious when applied to our situation which was extremely different. Experience he said had shewn that the State legislatures drawn immediately from the people did not always possess their confidence. He had no objection however to an election by the people if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments. He seemed to think the people might nominate a certain number out of which the State legislatures should be bound to choose.[42] [42] "Mr. Strong would agree to the principle, provided it would undergo a certain modification, but pointed out nothing."--Pierce's Notes, _Am. Hist. Rev._, iii., 318. M^r Butler thought an election by the people an impracticable mode. On the question for an election of the first branch of the national Legislature, by the people, Mass^{ts} ay. Connec^t div^d. N. York ay. N. Jersey no. Pen^a ay. Delaw^r div^d. V^a ay. N. C. ay. S. C. no. Georg^a ay. The remaiñg Clauses of Resolution 4^{th} relating to the qualifications of members of the National Legislature, being posp^d nem. con., as entering too much into detail for general propositions. The Committee proceeded to Resolution 5. "that the second, (or senatorial) branch of the National Legislature ought to be chosen by the first branch out of persons nominated by the State Legislatures." M^r Spaight contended that the 2^d branch ought to be chosen by the State Legislatures and moved an amendment to that effect.[43] [43] "M^r King observed that the Question called for was premature, and out of order,--that unless we go on regularly from one principle to the other we shall draw out our proceedings to an endless length."--Pierce's Notes, _Am. Hist. Rev._, iii., 318. M^r Butler apprehended that the taking so many powers out of the hands of the States as was proposed, tended to destroy all that balance and security of interests among the States which it was necessary to preserve; and called on M^r Randolph the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to this second branch. M^r Rand^f observed that he had at the time of offering his propositions stated his ideas as far as the nature of general propositions required; that details made no part of the plan, and could not perhaps with propriety have been introduced. If he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. He observed that the general object was to provide a cure for the evils under which the U. S. laboured; that in tracing these evils to their origin every man had found it in the turbulance and follies of democracy: that some check therefore was to be sought for ag^{st} this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose.[44] [44] "Butler said that until the number of the Senate could be known it would be impossible for him to give a vote on it."--Pierce's Notes, _Am. Hist. Rev._, iii., 318. M^r King reminded the Committee that the choice of the second branch as proposed (by M^r Spaight) viz. by the State Legislatures would be impracticable, unless it was to be very numerous, or _the idea of proportion_ among the States was to be disregarded. According to this _idea_, there must be 80 or 100 members to entitle Delaware to the choice of one of them.--M^r Spaight withdrew his motion. M^r Wilson opposed both a nomination by the State Legislatures, and an election by the first branch of the national Legislature, because the second branch of the latter, ought to be independent of both. He thought both branches of the National Legislature ought to be chosen by the people, but was not prepared with a specific proposition. He suggested the mode of chusing the Senate of N. York to wit of uniting several election districts for one branch, in chusing members for the other branch, as a good model. M^r Madison observed that such a mode would destroy the influence of the smaller States associated with larger ones in the same district; as the latter would chuse from within themselves, altho' better men might be found in the former. The election of Senators in Virg^a where large & small counties were often formed into one district for the purpose, had illustrated this consequence. Local partiality, would often prefer a resident within the County or State, to a candidate of superior merit residing out of it. Less merit also in a resident would be more known throughout his own State.[45] [45] "M^r Butler moved to have the proposition relating to the first branch postponed, in order to take up another,--which was that the second branch of the Legislature consist of blank. "M^r King objected to the postponement for the reasons which he had offered before."--Pierce's Notes, _Id._, iii., 319. M^r Sherman favored an election of one member by each of the State Legislatures.[46] [46] According to Pierce, Mason spoke after Sherman, and Pinckney's motion is given more fully by Pierce than by Madison. "M^r Mason was of opinion that it would be highly improper to draw the Senate out of the first branch; that it would occasion vacancies which would cost much time, trouble, and expense to have filled up,--besides which it would make the members too dependent on the first branch. "M^r Ch^s Pinckney said he meant to propose to divide the Continent into four Divisions, out of which a certain number of persons sh^d be nominated, and out of that nomination to appoint a senate."--Pierce's Notes, _Amer. Hist. Rev._, iii., 319. M^r Pinkney moved to strike out the "nomination by the State Legislatures;" on this question. [47]Mass^{ts} no. Con^t no. N. Y. no. N. J. no. Pen^a no. Del. div^d V^a no. N. C. no. S. C. no. Georg no. [47] This question is omitted in the printed Journal, & the votes applied to the succeeding one, instead of the votes as here stated.--Madison's Note. On the whole question for electing by the first branch out of nominations by the State Legislatures, Mass. ay. Con^t no. N. Y. no. N. Jersey, no. Pen^a no. Del. no. Virg^a ay. N. C. no. S. C. ay. G^a no. So the clause was disagreed to & a chasm left in this part of the plan. The sixth Resolution stating the cases in which the national Legislature ought to legislate was next taken into discussion: On the question whether each branch sh^d originate laws, there was an unanimous affirmative without debate. On the question for transferring all the Legislative power of the existing Cong^s to this Assembly, there was also a silent affirmative nem. con. On the proposition for giving "Legislative power in all cases to which the State Legislatures were individually incompetent," M^r Pinkney & M^r Rutledge[48] objected to the vagueness of the term _incompetent_, and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.[49] [48] "Mr. Rutledge is one of those characters who was highly mounted at the commencement of the late revolution;--his reputation in the first Congress gave him a distinguished rank among the American Worthies. He was bred to the Law, and now acts as one of the Chancellors of South Carolina. This Gentleman is much famed in his own State as an Orator, but in my opinion he is too rapid in his public speaking to be denominated an agreeable Orator. He is undobotedly a man of abilities, and a Gentleman of distinction and fortune. Mr. Rutledge was once Governor of South Carolina. He is about 48 years of age."--Pierce's Notes, _Amer. Hist. Rev._, iii., 333. [49] According to Pierce: "M^r Sherman was of opinion that it would be too indefinitely expressed,--and yet it would be hard to define all the powers by detail. It appeared to him that it would be improper for the national Legislature to negative all the Laws that were connected with the States themselves. "M^r Madison said it was necessary to adopt some general principles on which we should act,--that we were wandering from one thing to another without seeming to be settled in any one principle. "M^r Wythe observed that it would be right to establish general principles before we go into detail, or very shortly Gentlemen would find themselves in confusion, and would be obliged to have recurrence to the point from whence they sat out. "M^r King was of opinion that the principles ought first to be established before we proceed to the framing of the Act. He apprehends that the principles only go so far as to embrace all the power that is given up by the people to the Legislature, and to the federal Government, but no farther. "M^r Randolph was of opinion that it would be impossible to define the powers and the length to which the federal Legislature ought to extend just at this time. "M^r Wilson observed that it would be impossible to enumerate the powers which the federal Legislature ought to have."--Pierce's Notes, _Id._, iii., 319, 320. M^r Butler repeated his fears that we were running into an extreme in taking away the powers of the States, and called on Mr. Randolph for the extent of his meaning. M^r Randolph disclaimed any intention to give indefinite powers to the national Legislature, declaring that he was entirely opposed to such an inroad on the State jurisdictions, and that he did not think any considerations whatever could ever change his determination. His opinion was fixed on this point. M^r Madison said that he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national Legislature; but had also brought doubts concerning its practicability. His wishes remained unaltered; but his doubts had become stronger. What his opinion might ultimately be he could not yet tell. But he should shrink from nothing which should be found essential to such a form of Gov^t as would provide for the safety, liberty and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to. On the question for giving powers, in cases to which the States are not competent--Mass^{ts} ay. Con^t div^d. (Sherman no. Elseworth ay.) N. Y. ay. N. J. ay. P^a ay. Del. ay. V^a ay. N. C. ay. S. Carolina ay. Georg^a ay. The other clauses giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the Union," being added after the words "contravening &c. the articles of the Union," on motion of D^r Franklin) were agreed to with^t debate or dissent. The last clause of Resolution 6, authorizing an exertion of the force of the whole ag^{st} a delinquent State came next into consideration. M^r Madison, observed that the more he reflected on the use of force, the more he doubted, the practicability, the justice and the efficacy of it when applied to people collectively and not individually.--A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force ag^{st} a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this resource unnecessary, and moved that the clause be postponed. This motion was agreed to, nem. con. The Committee then rose & the House Adjourned.[50] [50] "When the Convention first opened at Philadelphia, there were a number of propositions brought forward as great leading principles for the new Government to be established for the United States. A copy of these propositions was given to each Member with an injunction to keep everything a profound secret. One morning, by accident, one of the Members dropt his copy of the propositions, which being luckily picked up by General Mifflin was presented to General Washington, our President, who put it in his pocket. After the debates of the Day were over, and the question for adjournment was called for, the General arose from his seat, and previous to his putting the question addressed the Convention in the following manner,-- "'Gentlemen "'I am sorry to find that some one Member of this Body, has been so neglectful of the secrets of the Convention as to drop in the State House, a copy of their proceedings, which by accident was picked up and delivered to me this Morning. I must entreat Gentlemen to be more careful, lest our transactions get into the News Papers, and disturb the public repose by premature speculations. I know not whose Paper it is, but there it is [throwing it down on the table,] let him who owns it take it.' At the same time he bowed, picked up his Hat, and quitted the room with a dignity so severe that every Person seemed alarmed; for my part I was extremely so, for putting my hand in my pocket I missed my copy of the same Paper, but advancing up to the Table my fears soon dissipated; I found it to be in the hand writing of another Person. When I went to my lodgings at the Indian Queen, I found my copy in a coat pocket which I had pulled off that Morning. It is something remarkable that no Person ever owned the Paper."--Pierce's Notes, _Am. Hist. Rev._, iii., 324. FRIDAY JUNE 1^{ST} 1787 William Houston from Georgia took his seat. The Committee of the whole proceeded to Resolution 7. "that a national Executive be instituted, to be chosen by the national Legislature for the term of ---- years &c. to be ineligible thereafter, to possess the Executive powers of Congress &c." M^r Pinkney was for a vigorous Executive but was afraid the Executive powers of the existing Congress might extend to peace & war &c. which would render the Executive a monarchy, of the worst kind, to wit an elective one. M^r Wilson moved that the Executive consist of a single person. M^r C. Pinkney seconded the motion, so as to read "that a National Ex. to consist of a single person, be instituted." A considerable pause ensuing and the Chairman asking if he should put the question, Doc^r Franklin[51] observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put. [51] "D^r Franklin is well known to be the greatest phylosopher of the present age;--all the operations of nature he seems to understand,--the very heavens obey him, and the Clouds yield up their Lightning to be imprisoned in his rod. But what claim he has to the politician, posterity must determine. It is certain that he does not shine much in public Council,--he is no Speaker, nor does he seem to let politics engage his attention. He is, however, a most extraordinary Man, and he tells a story in a style more engaging than anything I ever heard. Let his Biographer finish his character. He is 82 years old, and possesses an activity of mind equal to a youth of 25 years of age."--Pierce's Notes, _Amer. Hist. Rev._, iii., 328. M^r Rutlidge animadverted on the shyness of gentlemen on this and other subjects. He said it looked as if they supposed themselves precluded by having frankly disclosed their opinions from afterwards changing them, which he did not take to be at all the case. He said he was for vesting the Executive power in a single person, tho' he was not for giving him the power of war and peace. A single man would feel the greatest responsibility and administer the public affairs best. M^r Sherman said he considered the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only, which was the depository of the supreme will of the Society. As they were the best judges of the business which ought to be done by the Executive department, and consequently of the number necessary from time to time for doing it, he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more as experience might dictate. M^r Wilson preferred a single magistrate, as giving most energy dispatch and responsibility to the office. He did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c. The only powers he considered strictly Executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the Legislature.[52] [52] According to King, Madison followed Wilson: "Madison agreed with Wilson in the Definition of Executive power. _Ex vi termini._ Executive power does not include the Power of War and Peace. Executive Power shd. be limited and defined. If large, we shall have the Evils of Elective Monarchies. Perhaps the best plan will be a single Executive of long duration, with a Council and with Liberty to dissent on his personal Responsibility."--King's _Life and Correspondence of Rufus King_, i., 588. According to Pierce: "M^r Madison was of opinion that an Executive formed of one Man would answer the purpose when aided by a Council, who should have the right to advise and record their proceedings, but not to control his authority."--Pierce's Notes, _Am. Hist. Rev._, iii., 320. M^r Gerry favored the policy of annexing a Council to the Executive in order to give weight & inspire confidence.[53] [53] King gives Gerry's remarks: "_Gerry._ I am in favor of a Council to advise the Executive: they will be organs of information respecting Persons qualified for various offices. Their opinions may be recorded, so as to be liable to be called to account & impeached--in this way, their Responsibility will be certain, and for misconduct their Punishment sure." Dickinson followed Gerry: "_Dickinson._ A limited yet vigorous Executive is not republican, but peculiar to monarchy--the royal Executive has vigour, not only by power, but by popular Attachment & Report--an Equivalent to popular Attachment may be derived from the Veto on the Legislative acts. We cannot have a limited monarchy--our condition does not permit it. Republics are in the beginning and for a time industrious, but they finally destroy themselves because they are badly constituted. I dread the consolidation of the States, & hope for a good national Govt. from the present Division of the States with a feeble Executive. "We are to have a Legislature of two branches, or two Legislatures, as the sovereign of the nation--this will work a change unless you provide that the judiciary shall aid and correct the Executive. The first Branch of the Legislature, the H. of Representatives, must be on another plan. The second Branch or Senate may be on the present scheme of representing _the States_--the Representatives to be apportioned according to the Quotas of the States paid into the general Treasury. The Executive to be removed from office by the national Legislature, on the Petition of seven States."--King's _Life and Correspondence of Rufus King_, i., 588 _et seq._ M^r Randolph strenuously opposed a unity in the Executive magistracy. He regarded it as the foetus of monarchy. We had he said no motive to be governed by the British Govenm^t as our prototype. He did not mean however to throw censure on that Excellent fabric. If we were in a situation to copy it he did not know that he should be opposed to it; but the fixt genius of the people of America required a different form of Government. He could not see why the great requisites for the Executive department, vigor, dispatch & responsibility could not be found in three men, as well as in one man. The Executive ought to be independent. It ought therefore in order to support its independence to consist of more than one. M^r Wilson said that unity in the Executive instead of being the fetus of monarchy would be the best safeguard against tyranny. He repeated that he was not governed by the British Model which was inapplicable to the situation of this Country; the extent of which was so great, and the manners so republican, that nothing but a great confederated Republic would do for it. M^r Wilson's motion for a single magistrate was postponed by common consent, the Committee seeming unprepared for any decision on it; and the first part of the clause agreed to, viz--"that a National Executive be instituted."[54] [54] Williamson followed Wilson, according to King: "_Williamson_--There is no true difference between an Executive composed of a single person, with a Council, and an Executive composed of three or more persons."--King's _Life and Correspondence of Rufus King_, i., 590. M^r Madison thought it would be proper, before a choice sh^d be made between a unity and a plurality in the Executive, to fix the extent of the Executive authority; that as certain powers were in their nature Executive, and must be given to that departm^t whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. He accordingly moved that so much of the clause before the Committee as related to the powers of the Executive sh^d be struck out & that after the words "that a national Executive ought to be instituted" there be inserted the words following viz. "with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers "not Legislative nor Judiciary in their nature," as may from time to time be delegated by the national Legislature." The words "not legislative nor judiciary in their nature" were added to the proposed amendment, in consequence of a suggestion by Gen^l Pinkney that improper powers might otherwise be delegated. M^r Wilson seconded this motion. M^r Pinkney moved to amend the amendment by striking out the last member of it; viz: "and to execute such other powers not Legislative nor Judiciary in their nature as may from time to time be delegated." He said they were unnecessary, the object of them being included in the "power to carry into effect the national laws." M^r Randolph seconded the motion. M^r Madison did not know that the words were absolutely necessary, or even the preceding words, "to appoint to offices &c. the whole being perhaps included in the first member of the proposition. He did not however see any inconveniency in retaining them, and cases might happen in which they might serve to prevent doubts and misconstructions. In consequence of the motion of M^r Pinkney, the question on M^r Madison's motion was divided; and the words objected to by M^r Pinkney struck out; by the votes of Connecticut, N. Y., N. J., Pen^a, Del., N. C., & Geo. ag^{st} Mass., Virg^a & S. Carolina the preceding part of the motion being first agreed to; Connecticut divided all the other States in the affirmative. The next clause in Resolution 7, relating to the mode of appointing, & the duration of, the Executive being under consideration, M^r Wilson said he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. He would say however at least that in theory he was for an election by the people. Experience, particularly in N. York & Mass^{ts}, shewed that an election of the first magistrate by the people at large, was both a convenient & successful mode. The objects of choice in such cases must be persons whose merits have general notoriety. M^r Sherman was for the appointment by the Legislature, and for making him absolutely dependent on that body, as it was the will of that which was to be executed. An independence of the Executive on the supreme Legislature, was in his opinion the very essence of tyranny if there was any such thing. M^r Wilson moves that the blank for the term of duration should be filled with three years, observing at the same time that he preferred this short period, on the supposition that a re-eligibility would be provided for. M^r Pinkney moves for seven years. M^r Sherman was for three years, and ag^{st} the doctrine of rotation as throwing out of office the men best qualified to execute its duties. M^r Mason was for seven years at least, and for prohibiting a re-eligibility as the best expedient both for preventing the effect of a false complaisance on the side of the Legislature towards unfit characters; and a temptation on the side of the Executive to intrigue with the Legislature for a re-appointment. M^r Bedford[55] was strongly opposed to so long a term as seven years. He begged the Committee to consider what the situation of the Country would be, in case the first magistrate should be saddled on it for such a period and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. An impeachment he said would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. He was for a triennial election, and for an ineligibility after a period of nine years. [55] "Mr. Bedford was educated for the Bar, and in his profession I am told, has merit. He is a bold and nervous Speaker, and has a very commanding and striking manner;--but he is warm and impetuous in his temper, and precipitate in his judgment. Mr. Bedford is about 32 years old, and very corpulent."--Pierce's Notes, _Am. Hist. Rev._, iii., 330. On the question for seven years, Mass^{ts} divid^{d.} Con^t no. N. Y. ay. N. J. ay. Pen^a ay. Del. ay. Virg^a ay. N. C. no. S. C. no. Geor. no. There being 5 ays, 4 noes, & 1 div^d, a question was asked whether a majority had voted in the Affirmative? The President decided that it was an affirmative vote. The _mode of appointing_ the Executive was the next question. M^r Wilson renewed his declarations in favor of an appointment by the people. He wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States; Col. Mason favors the idea, but thinks it impracticable. He wishes however that M^r Wilson might have time to digest it into his own form.--the clause, "to be chosen by the National Legislature"--was accordingly postponed.-- M^r Rutlidge suggests an election of the Executive by the second branch only of the national Legislature. The Committee then rose and the House Adjourned. SATURDAY JUNE 2^D IN COMMITTEE OF WHOLE William Sam^l Johnson from Connecticut, Daniel of St. Thomas Jenifer, from Mary^d, & John Lansing J^r from N. York, took their seats. It was mov^d & 2^{ded} to postpone ye Resol: of M^r Randolph respecting the Executive, in order to take up the 2^d branch of the Legislature; which being negatived by Mas: Con: Del: Virg: N. C. S. C. Geo: ag^{st} N. Y. Pen^a Mary^d. The mode of appointing the Executive was resumed. M^r Wilson made the following motion, to be substituted for the mode proposed by Mr. Randolph's resolution, "that the Executive Magistracy shall be elected in the following manner: That the States be divided into ---- districts: & that the persons qualified to vote in each district for members of the first branch of the national Legislature elect ---- members for their respective districts to be electors of the Executive Magistracy, that the said Electors of the Executive magistracy meet at ---- and they or any ---- of them so met shall proceed to elect by ballot, but not out of their own body ---- person-- in whom the Executive authority of the national Government shall be vested." M^r Wilson repeated his arguments in favor of an election without the intervention of the States. He supposed too that this mode would produce more confidence among the people in the first magistrate, than an election by the national Legislature. M^r Gerry, opposed the election by the National legislature. There would be a constant intrigue kept up for the appointment. The Legislature & the candidates w^d bargain & play into one another's hands, votes would be given by the former under promises or expectations from the latter, of recompensing them by services to members of the Legislature or to their friends. He liked the principle of M^r Wilson's motion, but fears it would alarm & give a handle to the State partizans, as tending to supersede altogether the State authorities. He thought the Community not yet ripe for stripping the States of their powers, even such as might not be requisite for local purposes. He was for waiting till the people should feel more the necessity of it. He seemed to prefer the taking the suffrages of the States, instead of Electors, or letting the Legislatures nominate, and the electors appoint. He was not clear that the people ought to act directly even in the choice of electors, being too little informed of personal characters in large districts, and liable to deceptions. M^r Williamson[56] could see no advantage in the introduction of Electors chosen by the people who would stand in the same relation to them as the State Legislatures, whilst the expedient would be attended with great trouble and expence. [56] "Mr. Williamson is a Gentleman of education and talents. He enters freely into public debate from his close attention to most subjects, but he is no Orator. There is a great degree of good humour and pleasantry in his character; and in his manners there is a strong trait of the Gentleman. He is about 48 years of age."--Pierce's Notes, _Amer. Hist. Rev._, iii., 332. On the question for agreeing to M^r Wilson's substitute, it was negatived: Mass^{ts} no. Con^t no. N. Y.[57] no. P^a ay. Del. no. Mar^d ay. Virg^a no. N. C. no. S. C. no. Geo^a no. [57] New York, in the printed Journal, divided.--Madison's Note. On the question for electing the Executive by the national Legislature for the term of seven years, it was agreed to, Mass^{ts} ay. Con^t ay. N. Y. ay. Pen^a no. Del. ay. Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Doc^r Franklin moved that what related to the compensation for the services of the Executive be postponed, in order to substitute--"whose necessary expences shall be defrayed, but who shall receive no salary, stipend fee or reward whatsoever for their services." He said that being very sensible of the effect of age on his memory, he had been unwilling to trust to that for the observations which seemed to support his motion and had reduced them to writing, that he might with the permission of the Committee read instead of speaking them. M^r Wilson made an offer to read the paper, which was accepted. The following is a literal copy of the paper: Sir, It is with reluctance that I rise to express a disapprobation of any one article of the plan for which we are so much obliged to the honorable gentleman who laid it before us. From its first reading I have borne a good will to it, and in general wished it success. In this particular of salaries to the Executive branch I happen to differ; and as my opinion may appear new and chimerical, it is only from a persuasion that it is right, and from a sense of duty that I hazard it. The Committee will judge of my reasons when they have heard them, and their judgment may possibly change mine.--I think I see inconveniences in the appointment of salaries; I see none in refusing them, but on the contrary, great advantages. Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men, a post of _honour_ that shall be at the same time a place of _profit_, and they will move heaven and earth to obtain it. The vast number of such places it is that renders the British Government so tempestuous. The struggles for them are the true sources of all those factions which are perpetually dividing the Nation, distracting its Councils, hurrying sometimes into fruitless & mischievous wars, and often compelling a submission to dishonorable terms of peace. And of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate, the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your Government and be your rulers.--And these too will be mistaken in the expected happiness of their situation: For their vanquished competitors of the same spirit, and from the same motives will perpetually be endeavouring to distress their administration, thwart their measures, and render them odious to the people. Besides these evils, Sir, tho' we may set out in the beginning with moderate salaries, we shall find that such will not be of long continuance. Reasons will never be wanting for proposed augmentations. And there will always be a party for giving more to the rulers, that the rulers may be able in return to give more to them. Hence as all history informs us, there has been in every State & Kingdom a constant kind of warfare between the Governing & Governed; the one striving to obtain more for its support, and the other to pay less. And this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the Princes, or enslaving of the people. Generally indeed the ruling power carries its point, the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more. The more the people are discontented with the oppression of taxes; the greater need the prince has of money to distribute among his partizans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. There is scarce a king in an hundred who would not, if he could, follow the example of Pharoah, get first all the people's money, then all their lands, and then make them and their children servants for ever. It will be said, that we don't propose to establish Kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among Citizens, and that they like. I am apprehensive therefore, perhaps too apprehensive, that the Government of these States, may in future times, end in a Monarchy. But this Catastrophe I think may be long delayed, if in our proposed System we do not sow the seeds of contention, faction & tumult, by making our posts of honor, places of profit. If we do, I fear that tho' we do employ at first a number, and not a single person, the number will in time be set aside, it will only nourish the foetus of a King, as the honorable gentleman from Virginia very aptly expressed it, and a King will the sooner be set over us. It may be imagined by some that this is an Utopian Idea, and that we can never find men to serve us in the Executive department, without paying them well for their services. I conceive this to be a mistake. Some existing facts present themselves to me, which incline me to a contrary opinion. The high Sheriff of a County in England is an honorable office, but it is not a profitable one. It is rather expensive and therefore not sought for. But yet, it is executed and well executed, and usually by some of the principal Gentlemen of the County. In France, the office of Counsellor, or Member of their Judiciary Parliaments is more honorable. It is therefore purchased at a high price: There are indeed fees on the law proceedings, which are divided among them, but these fees do not amount to more than three Per Cent on the sum paid for the place. Therefore as legal interest is there at five PerC^t they in fact pay two PerC^t for being allowed to do the Judiciary business of the Nation, which is at the same time entirely exempt from the burden of paying them any salaries for their services. I do not however mean to recommend this as an eligible mode for our Judiciary department. I only bring the instance to shew that the pleasure of doing good & serving their Country and the respect such conduct entitles them to, are sufficient motives with some minds to give up a great portion of their time to the Public, without the mean inducement of pecuniary satisfaction. Another instance is that of a respectable Society who have made the experiment, and practised it with success more than one hundred years. I mean the Quakers. It is an established rule with them, that they are not to go to law; but in their controversies they must apply to their monthly, quarterly and yearly meetings. Committees of these sit with patience to hear the parties, and spend much time in composing their differences. In doing this, they are supported by a sense of duty, and the respect paid to usefulness. It is honorable to be so employed, but it is never made profitable by salaries, fees or perquisites. And indeed in all cases of Public service the less the profit the greater the honor. To bring the matter nearer home, have we not seen, the great and most important of our offices, that of General of our armies executed for eight years together without the smallest salary, by a Patriot whom I will not now offend by any other praise; and this through fatigues and distresses in common with the other brave men his military friends & companions, and the constant anxieties peculiar to his station? And shall we doubt finding three or four men in all the U. States, with public spirit enough to bear sitting in peaceful Council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed. Sir, I have a better opinion of our Country. I think we shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the office in question. Sir. The saving of the salaries that may at first be proposed is not an object with me. The subsequent mischiefs of proposing them are what I apprehend. And therefore it is, that I move the amendment. If it is not seconded or accepted I must be contented with the satisfaction of having delivered my opinion frankly and done my duty. The motion was seconded by Col. Hamilton, with the view he said merely of bringing so respectable a proposition before the Committee, and which was besides enforced by arguments that had a certain degree of weight. No debate ensued, and the proposition was postponed for the consideration of the members. It was treated with great respect, but rather for the author of it, than from any apparent conviction of its expediency or practicability. M^r Dickinson moved,[58] "that the Executive be made removable by the National Legislature on the request of a majority of the Legislatures of individual States." It was necessary he said to place the power of removing somewhere. He did not like the plan of impeaching the Great officers of State. He did not know how provision could be made for removal of them in a better mode than that which he had proposed. He had no idea of abolishing the State Governments as some gentlemen seemed inclined to do. The happiness of this Country in his opinion required considerable powers to be left in the hands of the States. [58] "Mr. Dickinson has been famed through all America for his Farmers Letters; he is a Scholar, and said to be a Man of very extensive information. When I saw him in the Convention I was induced to pay the greatest attention to him whenever he spoke. I had often heard that he was a great Orator, but I found him an indifferent Speaker. With an affected air of wisdom he labors to produce a trifle,--his language is irregular and incorrect,--his flourishes, (for he sometimes attempts them,) are like expiring flames, they just shew themselves and go out;--no traces of them are left on the mind to chear or animate it. He is, however, a good writer and will be ever considered one of the most important characters in the United States. He is about 55 years old, and was bred a Quaker."--Pierce's Notes, _Am. Hist. Rev._, iii., 329. M^r Bedford seconded the motion. M^r Sherman contended that the national Legislature should have power to remove the Executive at pleasure. M^r Mason. Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen. He opposed decidedly the making the Executive the mere creature of the Legislature as a violation of the fundamental principle of good Government. M^r Madison & M^r Wilson observed that it would leave an equality of agency in the small with the great States; that it would enable a minority of the people to prevent y^e removal of an officer who had rendered himself justly criminal in the eyes of a majority; that it would open a door for intrigues ag^{st} him in States where his administration tho' just might be unpopular, and might tempt him to pay court to particular States whose leading partizans he might fear, or wish to engage as his partizans. They both thought it bad policy to introduce such a mixture of the State authorities, where their agency could be otherwise supplied. M^r Dickinson considered the business as so important that no man ought to be silent or reserved. He went into a discourse of some length, the sum of which was, that the Legislative, Executive, & Judiciary departments ought to be made as independ^t as possible; but that such an Executive as some seemed to have in contemplation was not consistent with a republic: that a firm Executive could only exist in a limited monarchy. In the British Gov^t itself the weight of the Executive arises from the attachments which the Crown draws to itself, & not merely from the force of its prerogatives. In place of these attachments we must look out for something else. One source of stability is the double branch of the Legislature. The division of the Country into distinct States formed the other principal source of stability. This division ought therefore to be maintained, and considerable powers to be left with the States. This was the ground of his consolation for the future fate of his Country. Without this, and in case of a consolidation of the States into one great Republic, we might read its fate in the history of smaller ones. A limited Monarchy he considered as _one_ of the best Governments in the world. It was not _certain_ that the same blessings were derivable from any other form. It was certain that equal blessings had never yet been derived from any of the republican form. A limited Monarchy however was out of the question. The spirit of the times--the state of our affairs forbade the experiment, if it were desireable. Was it possible moreover in the nature of things to introduce it even if these obstacles were less insuperable. A House of Nobles was essential to such a Gov^t could these be created by a breath, or by a stroke of the pen? No. They were the growth of ages, and could only arise under a complication of circumstances none of which existed in this Country. But though a form the most perfect _perhaps_ in itself be unattainable, we must not despair. If antient republics have been found to flourish for a moment only & then vanish for ever, it only proves that they were badly constituted; and that we ought to seek for every remedy for their diseases. One of these remedies he conceived to be the accidental lucky division of this Country into distinct States; a division which some seemed desirous to abolish altogether. As to the point of representation in the national Legislature as it might affect States of different sizes, he said it must probably end in mutual concession. He hoped that each State would retain an equal voice at least in one branch of the National Legislature, and supposed the sums paid within each State would form a better ratio for the other branch than either the number of inhabitants or the quantum of property.[59] [59] According to Pierce: "M^r Madison said it was far from being his wish that every executive Officer should remain in Office, without being amenable to some Body for his conduct."--Pierce's Notes, _Am. Hist. Rev._, iii., 321. A motion being made to strike out, "on request by a majority of the Legislatures of the individual States," and rejected, Connecticut, S. Carol: & Geo. being ay, the rest no: the question on M^r Dickinson's motion for making Executive removable by Nat^l Legislature at request of majority of State Legislatures was also rejected all the States being in the negative Except Delaware which gave an affirmative vote. The Question for making y^e Executive ineligible after seven years, was next taken and agreed to: Mass^{ts} ay. Con^t no. N. Y. ay. P^a div^d. Del. ay. Mary^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.[60] [60] In printed Journal Geo. ay.--Madison's Note. M^r Williamson 2^{ded} by M^r Davie[61] moved to add to the last clause, the words--"and to be removable on impeachment & conviction of mal-practice or neglect of duty"--which was agreed to. [61] "Mr. Davey is a Lawyer of some eminence in his State. He is said to have a good classical education, and is a Gentleman of considerable literary talents. He was silent in the Convention, but his opinion was always respected. Mr. Davy is about 30 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 332. M^r Rutlidge & M^r C. Pinkney moved that the blank for the n^o of persons in the Executive be filled with the words "one person." He supposed the reasons to be so obvious & conclusive in favor of one that no member would oppose the motion. M^r Randolph opposed it with great earnestness, declaring that he should not do justice to the Country which sent him if he were silently to suffer the establishm^t of a Unity in the Executive department. He felt an opposition to it which he believed he should continue to feel as long as he lived. He urged 1. that the permanent temper of the people was adverse to the very semblance of Monarchy. 2. that a unity was unnecessary a plurality being equally competent to all the objects of the department. 3. that the necessary confidence would never be reposed in a single Magistrate. 4. that the appointments would generally be in favor of some inhabitant near the center of the Community, and consequently the remote parts would not be on an equal footing. He was in favor of three members of the Executive to be drawn from different portions of the country. M^r Butler contended strongly for a single magistrate as most likely to answer the purpose of the remote parts. If one man should be appointed he would be responsible to the whole, and would be impartial to its interests. If three or more should be taken from as many districts, there would be a constant struggle for local advantages. In Military matters this would be particularly mischievous. He said his opinion on this point had been formed under the opportunity he had had of seeing the manner in which a plurality of military heads distracted Holland when threatened with invasion by the imperial troops. One man was for directing the force to the defence of this part, another to that part of the Country, just as he happened to be swayed by prejudice or interest. The motion was then postp^d, the Committee rose & the House Adj^d. MONDAY JUNE 4. IN COMMITTEE OF THE WHOLE The Question was resumed on motion of M^r Pinkney, 2^{ded} by M^r Wilson, "shall the blank for the number of the Executive be filled with a single person?" M^r Wilson was in favor of the motion. It had been opposed by the gentleman from Virg^a (Mr. Randolph) but the arguments used had not convinced him. He observed that the objections of M^r R. were levelled not so much ag^st the measure itself, as ag^{st} its unpopularity. If he could suppose that it would occasion a rejection of the plan of which it should form a part, though the part were an important one, yet he would give it up rather than lose the whole. On examination he could see no evidence of the alledged antipathy of the people. On the contrary he was persuaded that it does not exist. All know that a single magistrate is not a King. One fact has great weight with him. All the 13 States tho agreeing in scarce any other instance, agree in placing a single magistrate at the head of the Govern^t. The idea of three heads has taken place in none. The degree of power is indeed different; but there are no co-ordinate heads. In addition to his former reasons for preferring a Unity, he would mention another. The _tranquillity_ not less than the vigor of the Gov^t he thought would be favored by it. Among three equal members, he foresaw nothing but uncontrouled, continued, & violent animosities; which would not only interrupt the public administration; but diffuse their poison thro' the other branches of Gov^t, thro' the States, and at length thro' the people at large. If the members were to be unequal in power the principle of opposition to the Unity was given up. If equal, the making them an odd number would not be a remedy. In Courts of Justice there are two sides only to a question. In the Legislative & Executive departm^{ts} questions have commonly many sides. Each member therefore might espouse a separate one & no two agree.[62] [62] According to Pierce, King followed Wilson: "Mr. King was of opinion that the Judicial ought not to join in the negative of a Law, because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the Constitution."--Pierce's Notes, _Am. Hist. Rev._, iii., 322. M^r Sherman. This matter is of great importance and ought to be well considered before it is determined. M^r Wilson he said had observed that in each State a single magistrate was placed at the head of the Gov^t. It was so he admitted, and properly so, and he wished the same policy to prevail in the federal Gov^t. But then it should be also remarked that in all the States there was a Council of advice, without which the first magistrate could not act. A council he thought necessary to make the establishment acceptable to the people. Even in G. B. the King has a Council; and though he appoints it himself, its advice has its weight with him, and attracts the Confidence of the people. M^r Williamson asks M^r Wilson whether he means to annex a Council. M^r Wilson means to have no Council, which oftener serves to cover, than prevent malpractices. M^r Gerry was at a loss to discover the policy of three members for the Executive. It w^d be extremely inconvenient in many instances, particularly in military matters, whether relating to the militia, an army, or a navy. It would be a general with three heads. On the question for a single Executive it was agreed to Mass^{ts} ay. Con^t ay. N. Y. no. Pen^a ay. Del. no. Mary^d no. Virg^a ay. (M^r R. & M^r Blair no--Doc^r McC^g M^r M. & Gen. W. ay. Col. Mason being no, but not in the house, M^r Wythe ay. but gone home). N. C. ay. S. C. ay. Georg^a ay. First Clause of Proposition 8^{th} relating _to a Council of Revision_ taken into consideration. M^r Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check ag^{st} encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being ag^{st} the Constitution. This was done too with general approbation. It was quite foreign from the nature of y^e office to make them judges of the policy of public measures. He moves to postpone the clause in order to propose "that the National Executive shall have a right to negative any Legislative act which shall not be afterwards passed by ---- parts of each branch of the national Legislature." M^r King seconds the motion, observing that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation. M^r Wilson thinks neither the original proposition nor the amendment goes far enough. If the Legislative Exetv & Judiciary ought to be distinct & independent, The Executive ought to have an absolute negative. Without such a self-defence the Legislature can at any moment sink it into non-existence. He was for varying the proposition in such a manner as to give the Executive & Judiciary jointly an absolute negative. On the question to postpone in order to take M^r Gerry's proposition into consideration it was agreed to, Mass^s ay. Con^t no. N. Y. ay. P^a ay. Del. no. Mary^d no. Virg^a no. N. C ay. S. C. ay. G^a ay. Mr. Gerry's proposition being now before Committee, M^r Wilson & M^r Hamilton move that the last part of it (viz. "w^{ch} s^l not be afterw^{ds} passed "unless by ---- parts of each branch of the National legislature") be struck out, so as to give the Executive an absolute negative on the laws. There was no danger they thought of such a power being too much exercised. It was mentioned by Col: Hamilton that the King of G. B. had not exerted his negative since the Revolution. M^r Gerry sees no necessity for so great a controul over the legislature as the best men in the Community would be comprised in the two branches of it. Doc^r Franklin, said he was sorry to differ from his colleague for whom he had a very great respect, on any occasion, but he could not help it on this. He had had some experience of this check in the Executive on the Legislature, under the proprietary Government of Pen^a. The negative of the Governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some donation, was always made a condition; till at last it became the regular practice, to have orders in his favor on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the western people, and notice of it arrived, the concurrence of the Governor in the means of self-defence could not be got, till it was agreed that his Estate should be exempted from taxation: so that the people were to fight for the security of his property, whilst he was to bear no share of the burden. This was a mischevous sort of check. If the Executive was to have a Council, such a power would be less objectionable. It was true, the King of G. B. had not, as was said, exerted his negative since the Revolution; but that matter was easily explained. The bribes and emoluments now given to the members of parliament rendered it unnecessary, every thing being done according to the will of the Ministers. He was afraid, if a negative should be given as proposed, that more power and money would be demanded, till at last eno' would be gotten to influence & bribe the Legislature into a compleat subjection to the will of the Executive. M^r Sherman was ag^{st} enabling any one man to stop the will of the whole. No one man could be found so far above all the rest in wisdom. He thought we ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the Legislature. M^r Madison supposed that if a proper proportion of each branch should be required to overrule the objections of the Executive, it would answer the same purpose as an absolute negative. It would rarely if ever happen that the Executive constituted as ours is proposed to be, would have firmness eno' to resist the legislature, unless backed by a certain part of the body itself. The King of G. B. with all his splendid attributes would not be able to withstand y^e unanimous and eager wishes of both houses of Parliament. To give such a prerogative would certainly be obnoxious to the temper of this Country; its present temper at least. M^r Wilson believed as others did that this power would seldom be used. The Legislature would know that such a power existed, and would refrain from such laws, as it would be sure to defeat. Its silent operation would therefore preserve harmony and prevent mischief. The case of Pen^a formerly was very different from its present case. The Executive was not then as now to be appointed by the people. It will not in this case as in the one cited be supported by the head of a Great Empire, actuated by a different & sometimes opposite interest. The salary too is now proposed to be fixed by the Constitution, or if D^r F.'s idea should be adopted all salary whatever interdicted. The requiring a large proportion of each House to overrule the Executive check might do in peaceable times; but there might be tempestuous moments in which animosities may run high between the Executive and Legislative branches, and in which the former ought to be able to defend itself. M^r Butler had been in favor of a single Executive Magistrate; but could he have entertained an idea that a compleat negative on the laws was to be given him he certainly should have acted very differently. It had been observed that in all countries the Executive power is in a constant course of increase. This was certainly the case in G. B. Gentlemen seemed to think that we had nothing to apprehend from an abuse of the Executive power. But why might not a Cataline or a Cromwell arise in this Country as well as in others. M^r Bedford was opposed to every check on the Legislature, even the Council of Revision first proposed. He thought it would be sufficient to mark out in the Constitution the boundaries to the Legislative Authority, which would give all the requisite security to the rights of the other departments. The Representatives of the people were the best Judges of what was for their interest, and ought to be under no external controul whatever. The two branches would produce a sufficient controul within the Legislature itself. Col. Mason observed that a vote had already passed he found [he was out at the time] for vesting the executive powers in a single person. Among these powers was that of appointing to offices in certain cases. The probable abuses of a negative had been well explained by D^r F. as proved by experience, the best of all tests. Will not the same door be opened here. The Executive may refuse its assent to necessary measures till new appointments shall be referred to him; and having by degrees engrossed these into all his own hands, the American Executive, like the British, will by bribery & influence, save himself the trouble & odium of exerting his negative afterwards. We are M^r Chairman going very far in this business. We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one. We are introducing a new principle into our system, and not necessary as in the British Gov^t where the Executive has greater rights to defend. Do gentlemen mean to pave the way to hereditary Monarchy? Do they flatter themselves that the people will ever consent to such an innovation? If they do I venture to tell them, they are mistaken. The people never will consent. And do gentlemen consider the danger of delay, and the still greater danger of a rejection, not for a moment but forever, of the plan which shall be proposed to them. Notwithstanding the oppression & injustice experienced among us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted. He could not but consider the federal system as in effect dissolved by the appointment of this Convention to devise a better one. And do gentlemen look forward to the dangerous interval between extinction of an old, and the establishment of a new Governm^t and to the scenes of confusion which may ensue. He hoped that nothing like a Monarchy would ever be attempted in this Country. A hatred to its oppressions had carried the people through the late Revolution. Will it not be eno' to enable the Executive to suspend offensive laws, till they shall be coolly revised, and the objections to them overruled by a greater majority than was required in the first instance. He never could agree to give up all the rights of the people to a single magistrate: If more than one had been fixed on, greater powers might have been entrusted to the Executive. He hoped this attempt to give such powers would have its weight hereafter as an argument for increasing the number of the Executive. Doc^r Franklin. A Gentleman from S. C., (M^r Butler) a day or two ago called our attention to the case of the U. Netherlands. He wished the gentleman had been a little fuller, and had gone back to the original of that Gov^t. The people being under great obligations to the Prince of Orange whose wisdom and bravery had saved them, chose him for the Stadtholder. He did very well. Inconveniences however were felt from his powers; which growing more & more oppressive, they were at length set aside. Still however there was a party for the P. of Orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de Witts, and got the powers revested in the Stadtholder. Afterwards another Prince had power to excite insurrections & make the Stadtholdership hereditary. And the present Stadth^{der} is ready to wade thro' a bloody civil war to the establishment of a monarchy. Col. Mason had mentioned the circumstance of appointing officers. He knew how that point would be managed. No new appointment would be suffered as heretofore in Pens^a unless it be referred to the Executive; so that all profitable offices will be at his disposal. The first man put at the helm will be a good one. No body knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy. On the question for striking out so as to give Executive an absolute negative,--Mass^{ts} no. Con^t no. N. Y. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Georg^a no. M^r Butler moved that the Resol^n be altered so as to read--"Resolved that the National Executive have a power to suspend any Legislative act for the term of ----." Doct^r Franklin seconds the motion. M^r Gerry observed that a power of suspending might do all the mischief dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones. On question "for giving this suspending power" all the States, to wit Mass^{ts} Con^t N. Y. P^a Del. Mary^d Virg^a N. C. S. C. Georgia, were _No_. On a question for enabling _two thirds_ of each branch of the Legislature to overrule the revisionary check, it passed in the affirmative sub silentio; and was inserted in the blank of M^r Gerry's motion. On the question on M^r Gerry's motion which gave the Executive alone without the Judiciary the revisionary controul on the laws unless overruled by 2/3 of each branch; Mass^{ts} ay. Con^t no. N. Y. ay. P^a ay. Del. ay. Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. It was moved by M^r Wilson 2^{ded} by M^r Madison--that the following amendment be made to the last resolution--after the words "National Ex." to add "& a convenient number of the National Judiciary."[63] [63] Before the motion, according to King's notes: "_Madison_--The judiciary ought to be introduced in the business of Legislation--they will protect their department, and united with the Executive make its negatives more strong. There is weight in the objections to this measure--but a check on the Legislature is necessary, Experience proves it to be so, and teaches us that what has been thought a calumny on a republican Govt. is nevertheless true--In all Countries are diversity of Interests, the Rich & the Poor, the Dr. & Cr., the followers of different Demagogues, the Diversity of religious Sects--the Effects of these Divisions in Ancient Govts. are well known, and the like causes will now produce like effects. We must therefore introduce in our system Provisions against the measures of an interested majority--a check is not only necessary to protect the Executive power, but the minority in the Legislature. The independence of the Executive, having the Eyes of all upon him will make him an impartial judge--add the Judiciary, and you greatly increase his respectability." After the motion: "Dickinson opposed--You shd. separate the Departments--you have given the Executive a share in Legislation; and it is asked why not give a share to the judicial power. Because the Judges are to interpret the Laws, and therefore shd. have no share in making them--not so with the Executive whose causing the Laws to be Executed is a ministerial office only. Besides we have experienced in the Br. Constitution which confers the Power of a negative on the Executive."--King's _Life and Correspondence of Rufus King_, i., 592. An Objection of order being taken by M^r Hamilton to the introduction of the last amendment at this time, notice was given by M^r W. & M^r M., that the same w^d be moved to-morrow,--whereupon Wednesday (the day after) was assigned to reconsider the amendment of M^r Gerry. It was then moved & 2^{ded} to proceed to the consideration of the 9^{th} resolution submitted by M^r Randolph--when on motion to agree to the first clause namely "Resolved, that a National Judiciary be established," It passed in the affirmative nem. con. It was then moved & 2^{ded} to add these words to the first clause of the ninth resolution namely--"to consist of one supreme tribunal, and of one or more inferior tribunals," which passed in the affirmative. The Comm^e then rose and the House Adjourned. TUESDAY JUNE 5. IN COMMITTEE OF THE WHOLE Governor Livingston from New Jersey, took his seat. The words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of Resol^n 9^{th}. The Clause--"that the National Judiciary be chosen by the National Legislature," being under consideration. M^r Wilson opposed the appointm^t of Judges by the National Legisl: Experience shewed the impropriety of such appointm^{ts} by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was that officers might be appointed by a single, responsible person. M^r Rutlidge was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy. He was against establishing any national tribunal except a single supreme one. The State tribunals are most proper to decide in all cases in the first instance. Doc^r Franklin observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible. Mr. Madison disliked the election of the Judges by the Legislature or any numerous body. Besides the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies. It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. On the other hand He was not satisfied with referring the appointment to the Executive, He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in--as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. He hinted this only and moved that the _appointment by the Legislature_ might be struck out, & a blank left to be hereafter filled on maturer reflection. M^r Wilson second it. On the question for striking out, Mass^{ts} ay. Con^t no. N. Y. ay. N. J. ay. Pen^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. Mr. Wilson gave notice that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals." M^r Pinkney gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee he should move to restore the "appointment by the national Legislature." The following clauses of Resol: 9. were agreed to viz "to hold their offices during good behaviour, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution." The remaining clause of Resolution 9. was postponed. Resolution 10 was agreed to,--viz--that provision ought to be made for the admission of States lawfully arising within the limits of the U. States, whether from a voluntary junction of Government & territory, or otherwise with the consent of a number of voices in the National Legislature less than the whole. The 11. Propos: "_for guaranteeing to States Republican Gov^t & territory_" &c. being read M^r Patterson[64] wished the point of representation could be decided before this clause should be considered, and moved to postpone it, which was not opposed, and agreed to,--Connecticut & S. Carolina only voting ag^{st} it. [64] "M^r Patterson is one of those kind of Men whose powers break in upon you, and create wonder and astonishment. He is a Man of great modesty, with looks that bespeak talents of no great extent,--but he is a Classic, a Lawyer, and an Orator;--and of a disposition so favorable to his advancement that every one seemed ready to exalt him with their praises. He is very happy in the choice of time and manner of engaging in a debate, and never speaks but when he understands his subject well. This Gentleman is about 43 Y. of age, of a very low stature."--Pierce's Notes, _Amer. Hist. Rev._, iii., 328. Propos. 12 "_for continuing Cong^s till a given day and for fulfilling their engagements_," produced no debate. On the question, Mass. ay. Con^t no. N. Y. ay. N. J.[65] ay. Pa. ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. G. ay. [65] Note in Madison's writing: New Jersey omitted in printed Journal. Propos: 13. "that _provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the Nat^l Legislature_", being taken up, M^r Pinkney doubted the propriety or necessity of it. M^r Gerry favored it. The novelty & difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the Gov^t. Nothing had yet happened in the States where this provision existed to prove its impropriety.--The proposition was postponed for further consideration: the votes being, Mas: Con. N. Y. P^a Del. Ma. N. C. ay. Virg^a S. C. Geo. no. Propos. 14. "_requiring oath from the State officers to support National Gov^t_" was postponed after a short uninteresting conversation: the votes. Con. N. Jersey M^d Virg. S. C. Geo. ay. N. Y. P^a Del. N. C. no. Massachusetts divided. Propos. 15. for "_recommending Conventions under appointment of the people to ratify the new Constitution_" &c. being taken up, M^r Sherman thought such a popular ratification unnecessary: the articles of Confederation providing for changes and alterations with the assent of Cong^s and ratification of State Legislatures. M^r Madison thought this provision essential. The articles of Confed^n themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Cong^s especially where the former are of posterior date, and the decision is to be made by State tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves. M^r Gerry observed that in the Eastern States the Confed^n had been sanctioned by the people themselves. He seemed afraid of referring the new system to them. The people in that quarter have at this time the wildest ideas of Government in the world. They were for abolishing the Senate in Mass^{ts} and giving all the other powers of Gov^t to the other branch of the Legislature. M^r King supposed that the last article of y^e Confed^n Rendered the legislature competent to the ratification. The people of the Southern States where the federal articles had been ratified by the Legislatures only, had since _impliedly_ given their sanction to it. He thought notwithstanding that there might be policy in varying the mode. A Convention being a single house, the adoption may more easily be carried thro' it, than thro' the Legislatures where there are several branches. The Legislatures also being to lose power, will be most likely to raise objections. The people having already parted with the necessary powers it is immaterial to them, by which Government they are possessed, provided they be well employed. M^r Wilson took this occasion to lead the Committee by a train of observations to the idea of not suffering a disposition in the plurality of States to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few States. He hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the accession of the rest.[66] [66] (This hint was probably meant in terrorem to the smaller States of N. Jersey & Delaware. Nothing was said in reply to it.)--Madison's Note. M^r Pinkney hoped that in case the experiment should not unanimously take place, nine States might be authorized to unite under the same Governm^t. The propos. 15. was postponed nem. con^t. M^r Pinkney & M^r Rutlidge moved that to-morrow be assigned to reconsider that clause of Propos: 4: which respects the election of the first branch of the National Legislature--which passed in affirmative,--Con.: N. Y., P^a Del. M^d, V^a, ay.--6 Mas.: N. J.: N. C.: S. C.: Geo.: no. 5. Mr. Rutlidge hav^g obtained a rule for reconsideration of the clause for establishing _inferior_ tribunals under the national authority, now moved that that part of the clause in the propos. 9. should be expunged: arguing that the State tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgm^{ts}: that it was making an unnecessary encroachment on the jurisdiction of the States and creating unnecessary obstacles to their adoption of the new system. Mr. Sherman 2^{ded} the motion. M^r Madison observed that unless inferior tribunals were dispersed throughout the Republic with _final_ jurisdiction in _many_ cases, appeals would be multiplied to a most oppressive degree; that besides, an appeal would not in many cases be a remedy. What was to be done after improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. To order a new trial at the Supreme bar would oblige the parties to bring up their witnesses, tho' ever so distant from the seat of the Court. An effective Judiciary establishment commensurate to the legislative authority, was essential. A Government without a proper Executive & Judiciary would be the mere trunk of a body, without arms or legs to act or move. M^r Wilson opposed the motion on like grounds. He said the admiralty jurisdiction ought to be given wholly to the national Government, as it related to cases not within the jurisdiction of particular states, & to a scene in which controversies with foreigners would be most likely to happen. M^r Sherman was in favor of the motion. He dwelt chiefly on the supposed expensiveness of having a new set of Courts, when the existing State Courts would answer the same purpose. M^r Dickinson contended strongly that if there was to be a National Legislature, there ought to be a national Judiciary, and that the former ought to have authority to institute the latter. On the question for M^r Rutlidge's motion to strike out "inferior tribunals" Mass^{ts} divided. Con^t ay. N. Y. div^d. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. M^r Wilson & M^r Madison then moved, in pursuance of the idea expressed above by Mr. Dickinson, to add to the Resol: 9. the words following "that the National Legislature be empowered to institute inferior tribunals." They observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them. They repeated the necessity of some such provision. M^r Butler. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon who gave the Athenians not the best Gov^t he could devise, but the best they w^d receive. M^r King remarked as to the comparative expence, that the establishment of inferior tribunals w^d cost infinitely less than the appeals that would be prevented by them. On this question as moved by M^r W. & M^r M. Mass. ay. C^t no. N. Y. div^d. N. J.[67] ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. [67] In printed Journals N. Jersey, no.--Madison's Note. The Committee then rose & the House adjourned to 11 OC tom^w. WEDNESDAY JUNE 6^{TH} IN COMMITTEE OF THE WHOLE. M^r Pinkney according to previous notice & rule obtained, moved "that the first branch of the national Legislature be elected by the State Legislatures, and not by the people;" contending that the people were less fit Judges in such a case, and that the Legislatures would be less likely to promote the adoption of the new Government, if they were to be excluded from all share in it. M^r Rutlidge 2^{ded} the motion. M^r Gerry.[68] Much depends on the mode of election. In England the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. Our danger arises from the opposite extreme: hence in Mass^{ts} the worst men get into the Legislature. Several members of that Body had lately been convicted of infamous crimes. Men of indigence, ignorance & baseness, spare no pains, however dirty to carry their point ag^{st} men who are superior to the artifices practised. He was not disposed to run into extremes. He was as much principled as ever ag^{st} aristocracy and monarchy. It was necessary on the one hand that the people should appoint one branch of the Gov^t in order to inspire them with the necessary confidence. But he wished the election on the other to be so modified as to secure more effectually a just preference of merit. His idea was that the people should nominate certain persons in certain districts, out of whom the State Legislatures sh^d make the appointment. [68] "Mr. Gerry.--If the national legislature are appointed by the state legislatures, demagogues and corrupt members will creep in."--Yates's _Secret Debates in Forming the Constitution_, 105. M^r Wilson. He wished for vigor in the Gov^t, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The Gov^t ought to possess not only 1^{st} the _force_, but 2^{dly} the _mind or sense_ of the people at large. The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because it is impossible for the people to act collectively. The opposition was to be expected he said from the _Governments_, not from the Citizens of the States. The latter had parted as was observed (by M^r King) with all the necessary powers; and it was immaterial to them, by whom they were exercised, if well exercised. The State officers were to be the losers of power. The people he supposed would be rather more attached to the national Gov^t than to the State Gov^{ts} as being more important in itself, and more flattering to their pride. There is no danger of improper elections if made by _large_ districts. Bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office. M^r Sherman. If it were in view to abolish the State Gov^{ts} the elections ought to be by the people. If the State Gov^{ts} are to be continued, it is necessary in order to preserve harmony between the National & State Gov^{ts} that the elections to the former sh^d be made by the latter. The right of participating in the National Gov^t would be sufficiently secured to the people by their election of the State Legislatures. The objects of the Union, he thought were few, 1. defence ag^{st} foreign danger, 2. ag^{st} internal disputes & a resort to force, 3. Treaties with foreign nations 4. regulating foreign commerce, & drawing revenue from it. These & perhaps a few lesser objects alone rendered a Confederation of the States necessary. All other matters civil & criminal would be much better in the hands of the States. The people are more happy in small than in large States. States may indeed be too small as Rhode Island, & thereby be too subject to faction. Some others were perhaps too large, the powers of Gov^t not being able to pervade them. He was for giving the General Gov^t power to legislate and execute within a defined province. Col. Mason. Under the existing Confederacy, Cong^s represent the _States_ and not the _people_ of the States: their acts operate on the _States_, not on the individuals. The case will be changed in the new plan of Gov^t. The people will be represented; they ought therefore to choose the Representatives. The requisites in actual representation are that the Rep^s should sympathize with their constituents; sh^d think as they think, & feel as they feel; and that for these purposes sh^d even be residents among them. Much he s^d had been alledged ag^{st} democratic elections. He admitted that much might be said; but it was to be considered that no Gov^t was free from imperfections & evils; and that improper elections in many instances were inseparable from Republican Gov^{ts}. But compare these with the advantage of this Form in favor of the rights of the people, in favor of human nature. He was persuaded there was a better chance for proper elections by the people, if divided into large districts, than by the State Legislatures. Paper money had been issued by the latter when the former were against it. Was it to be supposed that the State Legislatures then w^d not send to the Nat^l legislature patrons of such projects, if the choice depended on them. M^r Madison considered an election of one branch at least of the Legislature by the people immediately, as a clear principle of free Gov^t and that this mode under proper regulations had the additional advantage of securing better representatives, as well as of avoiding too great an agency of the State Governments in the General one. He differed from the member from Connecticut (Mr. Sherman) in thinking the objects mentioned to be all the principal ones that required a National Gov^t. Those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than anything else, produced this convention. Was it to be supposed that republican liberty could long exist under the abuses of it practised in some of the States. The gentleman (M^r Sherman) had admitted that in a very small State, faction & oppression w^d prevail. It was to be inferred then that wherever these prevailed the State was too small. Had they not prevailed in the largest as well as the smallest tho' less than in the smallest; and were we not thence admonished to enlarge the sphere as far as the nature of the Gov^t would Admit. This was the only defence ag^{st} the inconveniences of democracy consistent with the democratic form of Gov^t. All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader--the disciples of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression. These observations are verified by the Histories of every country antient & modern. In Greece & Rome the rich & poor, the Creditors & debtors, as well as the patricians & plebeians alternately oppressed each other with equal unmercifulness. What a source of oppression was the relation between the parent cities of Rome, Athens & Carthage, & their respective provinces; the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it? Why was America so justly apprehensive of Parliamentary injustice? Because G. Britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown a disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Gov^t the majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1^{st} place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2^d place that in case they sh^d have such an interest, they may not be apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils w^{ch} have been experienced. M^r Dickinson considered it essential that one branch of the Legislature sh^d be drawn immediately from the people; and as expedient that the other sh^d be chosen by the Legislatures of the States. This combination of the State Gov^{ts} with the national Gov^t was as politic as it was unavoidable. In the formation of the Senate we ought to carry it through such a refining process as will assimilate it as nearly as may be to the House of Lords in England. He repeated his warm eulogiums on the British Constitution. He was for a strong National Gov^t but for leaving the States a considerable agency in the System. The objection ag^{st} making the former dependent on the latter might be obviated by giving to the Senate an authority permanent & irrevocable for three, five or seven years. Being thus independent they will check & decide with becoming freedom. M^r Read. Too much attachment is betrayed to the State Govern^{ts}. We must look beyond their continuance. A national Gov^t must soon of necessity swallow all of them up. They will soon be reduced to the mere office of electing the National Senate. He was ag^{st} patching up the old federal System: he hoped the idea w^d be dismissed. It would be like putting new cloth on an old garment. The confederation was founded on temporary principles. It cannot last: it can not be amended. If we do not establish a good Gov^t on new principles, we must either go to ruin, or have the work to do over again. The people at large are wrongly suspected of being averse to a Gen^l Gov^t. The aversion lies among interested men who possess their confidence. M^r Pierce[69] was for an election by the people as to the 1^{st} branch & by the States as to the 2^d branch; by which means the Citizens of the States w^d be represented both _individually_ & _collectively_. [69] "My own character I shall not attempt to draw, but leave those who may choose to speculate on it, to consider it in any light that their fancy or imagination may depict. I am conscious of having discharged my duty as a Soldier through the course of the late revolution with honor and propriety; and my services in Congress and the Convention were bestowed with the best intention towards the interest of Georgia, and towards the general welfare of the Confederacy. I possess ambition, and it was that, and the flattering opinion which some of my Friends had of me, that gave me a seat in the wisest Council in the World, and furnished me with an opportunity of giving these short Sketches of the Characters who composed it."--Pierce's Notes, _Amer. Hist. Rev._, iii., 334. General Pinkney wished to have a good National Gov^t & at the same time to leave a considerable share of power in the States. An election of either branch by the people scattered as they are in many States, particularly in S. Carolina was totally impracticable. He differed from gentlemen who thought that a choice by the people w^d be a better guard ag^{st} bad measures, than by the Legislatures. A majority of the people in S. Carolina were notoriously for paper-money as a legal tender; the Legislature had refused to make it a legal tender. The reason was that the latter had some sense of character and were restrained by that consideration. The State Legislatures also he said would be more jealous, & more ready to thwart the National Gov^t, if excluded from a participation in it. The Idea of abolishing these Legislatures w^d never go down. M^r Wilson would not have spoken again, but for what had fallen from Mr. Read; namely, that the idea of preserving the State Gov^{ts} ought to be abandoned. He saw no incompatibility between the national & State Gov^{ts} provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated Systems antient & modern the reverse had happened; the Generality being destroyed gradually by the usurpations of the parts composing it. On the question for electing the 1^{st} branch by the State Legislatures as moved by M^r Pinkney: it was negatived: Mass. no. C^t ay. N. Y. no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. no. M^r Wilson moved to reconsider the vote excluding the Judiciary from a share in the revision of the laws, and to add after "National Executive" the words "with a convenient number of the national Judiciary;" remarking the expediency of reinforcing the Executive with the influence of that Department. M^r Madison 2^{ded} the motion. He observed that the great difficulty in rendering the Executive competent to its own defence arose from the nature of Republican Gov^t which could not give to an individual citizen that settled pre-eminence in the eyes of the rest, that weight of property, that personal interest ag^{st} betraying the national interest, which appertain to an hereditary magistrate. In a Republic personal merit alone could be the ground of political exaltation, but it would rarely happen that this merit would be so pre-eminent as to produce universal acquiescence. The Executive Magistrate would be envied & assailed by disappointed competitors: His firmness therefore w^d need support. He would not possess those great emoluments from his station, nor that permanent stake in the public interest which w^d place him out of the reach of foreign corruption. He would stand in need therefore of being controuled as well as supported. An association of the Judges in his revisionary function w^d both double the advantage and diminish the danger. It w^d also enable the Judiciary Department the better to defend itself ag^{st} Legislative encroachments. Two objections had been made 1^{st} that the Judges ought not to be subject to the bias which a participation in the making of laws might give in the exposition of them. 2^{dly} that the Judiciary Departm^t ought to be separate & distinct from the other great Departments. The 1^{st} objection had some weight; but it was much diminished by reflecting that a small proportion of the laws coming in question before a Judge w^d be such wherein he had been consulted; that a small part of this proportion w^d be so ambiguous as to leave room for his prepossessions; and that but a few cases w^d probably arise in the life of a Judge under such ambiguous passages. How much good on the other hand w^d proceed from the perspicuity, the conciseness, and the systematic character w^{ch} the Code of laws w^d receive from the Judiciary talents. As to the 2^d objection, it either had no weight, or it applied with equal weight to the Executive & to the Judiciary revision of the laws. The maxim on which the objection was founded required a separation of the Executive as well as the Judiciary from the Legislature & from each other. There w^d in truth however be no improper mixture of these distinct powers in the present case. In England, whence the maxim itself had been drawn, the Executive had an absolute negative on the laws; and the Supreme tribunal of Justice (the House of Lords) formed one of the other branches of the Legislature. In short whether the object of the revisionary power was to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form, the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed incontestable. M^r Gerry thought the Executive, whilst standing alone w^d be more impartial than when he c^d be covered by the sanction & seduced by the sophistry of the Judges. M^r King. If the Unity of the Executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary as to the executive power. M^r Pinkney had been at first in favor of joining the heads of the principal departm^{ts} the Secretary at War, of foreign affairs &c.--in the council of revision. He had however relinquished the idea from a consideration that these could be called on by the Executive Magistrate whenever he pleased to consult them. He was opposed to the introduction of the Judges into the business. Col. Mason was for giving all possible weight to the revisionary institution. The Executive power ought to be well secured ag^{st} Legislative usurpations on it. The purse & the sword ought never to get into the same hands whether Legislative or Executive. M^r Dickinson. Secrecy, vigor & despatch are not the principal properties req^d in the Executive. Important as these are, that of responsibility is more so, which can only be preserved; by leaving it singly to discharge its functions. He thought too a junction of the Judiciary to it, involved an improper mixture of powers. M^r Wilson remarked, that the responsibility required belonged to his Executive duties. The revisionary duty was an extraneous one, calculated for collateral purposes. M^r Williamson, was for substituting a clause requiring 2/3 for every effective act of the Legislature, in place of the revisionary provision. On the question for joining the Judges to the Executive in the revisionary business, Mass. no. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. M^r Pinkney gave notice that tomorrow he should move for the reconsideration of that clause in the sixth Resolution adopted by the Comm^e which vests a negative in the National Legislature on the laws of the several States. The Com^e rose & the House adj^d to 11 OC. THURSDAY JUNE 7^{TH} 1787--IN COMMITTEE OF THE WHOLE M^r Pinkney according to notice moved to reconsider the clause respecting the negative on State laws, which was agreed to, and tomorrow for fixed the purpose. The Clause providing for y^e appointment of the 2^d branch of the national Legislature, having lain blank since the last vote on the mode of electing it, to wit, by the 1^{st} branch, M^r Dickinson now moved "that the members of the 2^d branch ought to be chosen by the individual Legislatures." M^r Sherman seconded the motion; observing that the particular States would thus become interested in supporting the National Govenm^t and that a due harmony between the two Governments would be maintained. He admitted that the two ought to have separate and distinct jurisdictions, but that they ought to have a mutual interest in supporting each other. M^r Pinkney. If the small States should be allowed one Senator only, the number will be too great, there will be 80 at least. M^r Dickinson had two reasons for his motion. 1, because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode. The greatness of the number was no objection with him. He hoped there would be 80 and twice 80. of them. If their number should be small, the popular branch could not be balanced by them. The legislature of a numerous people ought to be a numerous body. M^r Williamson, preferred a small number of Senators, but wished that each State should have at least one. He suggested 25 as a convenient number. The different modes of representation in the different branches, will serve as a mutual check. M^r Butler was anxious to know the ratio of representation before he gave any opinion. M^r Wilson. If we are to establish a national Government, that Government ought to flow from the people at large. If one branch of it should be chosen by the Legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them. He wished the Senate to be elected by the people as well as the other branch, the people might be divided into proper districts for the purpose & moved to postpone the motion of M^r Dickinson, in order to take up one of that import. M^r Morris 2^{ded} him. M^r Read proposed "that the Senate should be appointed by the Executive Magistrate out of a proper number of persons to be nominated by the individual legislatures." He said he thought it his duty, to speak his mind frankly. Gentlemen he hoped would not be alarmed at the idea. Nothing short of this approach towards a proper model of Government would answer the purpose, and he thought it best to come directly to the point at once.--His proposition was not seconded nor supported. M^r Madison, if the motion (of Mr. Dickinson) should be agreed to, we must either depart from the doctrine of proportional representation; or admit into the Senate a very large number of members. The first is inadmissible, being evidently unjust. The second is inexpedient. The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch. Enlarge their number and you communicate to them the vices which they are meant to correct. He differed from M^r D. who thought that the additional number would give additional weight to the body. On the contrary it appeared to him that their weight would be in an inverse ratio to their number. The example of the Roman Tribunes, was applicable. They lost their influence and power, in proportion as their number was augmented. The reason seemed to be obvious: They were appointed to take care of the popular interests & pretensions at Rome, because the people by reason of their numbers could not act in concert; were liable to fall into factions among themselves, and to become a prey to their aristocratic adversaries. The more the representatives of the people therefore were multiplied, the more they partook of the infirmities of their constituents, the more liable they became to be divided among themselves either from their own indiscretions or the artifices of the opposite faction, and of course the less capable of fulfilling their trust. When the weight of a set of men depends merely on their personal characters; the greater the number the greater the weight. When it depends on the degree of political authority lodged in them the smaller the number the greater the weight. These considerations might perhaps be combined in the intended Senate; but the latter was the material one. M^r Gerry. 4 modes of appointing the Senate have been mentioned. 1. by the 1^{st} branch of the National Legislature. This would create a dependance contrary to the end proposed. 2. by the National Executive. This is a stride towards monarchy that few will think of. 3. by the people. The people have two great interests, the landed interest, and the commercial including the stockholders. To draw both branches from the people will leave no security to the latter interest; the people being Chiefly composed of the landed interest, and erroneously supposing, that the other interests are adverse to it. 4. by the Individual Legislatures. The elections being carried thro' this refinement, will be most likely to provide some check in favor of the Commercial interest ag^{st} the landed; without which oppression will take place, and no free Gov^t can last long where that is the case. He was therefore in favor of this last. M^r Dickenson.[70] The preservation of the States in a certain degree of agency is indispensable. It will produce that collision between the different authorities which should be wished for in order to check each other. To attempt to abolish the States altogether, would degrade the Councils of our Country, would be impracticable, would be ruinous. He compared the proposed National System to the Solar System, in which the States were the planets, and ought to be left to move freely in their proper orbits. The Gentleman from P^a (M^r Wilson) wished he said to extinguish these planets. If the State Governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequence would be that the national Gov^t would move in the same direction as the State Gov^{ts} now do, and would run into all the same mischiefs. The reform would only unite the 13 small streams into one great current pursuing the same course without any opposition whatever. He adhered to the opinion that the Senate ought to be composed of a large number, and that their influence from family weight & other causes would be increased thereby. He did not admit that the Tribunes lost their weight in proportion as their n^o was augmented and gave a historical sketch of this institution. If the reasoning of (M^r Madison) was good it would prove that the number of the Senate ought to be reduced below ten, the highest n^o of the Tribunitial corps. [70] It will throw light on this discussion to remark that an election by the State Legislatures involved a surrender of the principle insisted on by the large States & dreaded by the small ones, namely that of a proportional representation in the Senate. Such a rule w^d make the body too numerous, as the smallest State must elect one member at least.--Madison's Note. M^r Wilson. The subject it must be owned is surrounded with doubts and difficulties. But we must surmount them. The British Governm^t cannot be our model. We have no materials for a similar one. Our manners, our laws, the abolition of entails and of primogeniture, the whole genius of the people, are opposed to it. He did not see the danger of the States being devoured by the Nation^l Gov^t. On the contrary, he wished to keep them from devouring the national Gov^t. He was not however for extinguishing these planets as was supposed by Mr. D.--neither did he on the other hand, believe that they would warm or enlighten the Sun. Within their proper orbits they must still be suffered to act for subordinate purposes, for which their existence is made essential by the great extent of our Country. He could not comprehend in what manner the landed interest w^d be rendered less predominant in the Senate, by an election through the medium of the Legislatures than by the people themselves. If the Legislatures, as was now complained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views. He was for an election by the people in large districts which w^d be most likely to obtain men of intelligence & uprightness; subdividing the districts only for the accommodation of voters. M^r Madison could as little comprehend in what manner family weight, as desired by M^r D. would be more certainly conveyed into the Senate through elections by the State Legislatures, than in some other modes. The true question was in what mode the best choice w^d be made? If an election by the people, or thro' any other channel than the State Legislatures promised as uncorrupt & impartial a preference of merit, there could surely be no necessity for an appointment by those Legislatures. Nor was it apparent that a more useful check would be derived thro' that channel than from the people thro' some other. The great evils complained of were that the State Legislatures run into schemes of paper money &c. whenever solicited by the people, & sometimes without even the sanction of the people. Their influence then, instead of checking a like propensity in the National Legislature, may be expected to promote it. Nothing can be more contradictory than to say that the Nat^l Legislature with^t a proper check, will follow the example of the State Legislatures, & in the same breath, that the State Legislatures are the only proper check. M^r Sherman opposed elections by the people in districts, as not likely to produce such fit men as elections by the State Legislatures. M^r Gerry insisted that the commercial & monied interest w^d be more secure in the hands of the State Legislatures, than of the people at large. The former have more sense of character, and will be restrained by that from injustice. The people are for paper money when the Legislatures are ag^{st} it. In Mass^{ts} the County Conventions had declared a wish for a _depreciating_ paper that w^d sink itself. Besides, in some States there are two Branches in the Legislature, one of which is somewhat aristocratic. There w^d therefore be so far a better chance of refinement in the choice. There seemed, he thought to be three powerful objections ag^{st} elections by districts, 1. it is impracticable; the people cannot be brought to one place for the purpose; and whether brought to the same place or not, numberless frauds w^d be unavoidable. 2. small States forming part of the same district with a large one, or large part of a large one, w^d have no chance of gaining an appointment for its citizens of merit. 3 a new source of discord w^d be opened between different parts of the same district. M^r Pinkney thought the 2^d branch ought to be permanent & independent; & that the members of it w^d be rendered more so by receiving their appointment from the State Legislatures. This mode w^d avoid the rivalships & discontents incident to the election by districts. He was for dividing the States into three classes according to their respective sizes, & for allowing to the 1^{st} class three members, to the 2^d two, & to the 3^d one. On the question for postponing M^r Dickinson's motion referring the appointment of the Senate to the State Legislatures, in order to consider M^r Wilson's for referring it to the people. Mass. no. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. Col. Mason. Whatever power may be necessary for the Nat^l Gov^t a certain portion must necessarily be left in the States. It is impossible for one power to pervade the extreme parts of the U. S. so as to carry equal justice to them. The State Legislatures also ought to have some means of defending themselves ag^{st} encroachments of the Nat^l Gov^t. In every other department we have studiously endeavoured to provide for its self-defence. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than the giving them some share in, or rather to make them a constituent part of, the Nat^l Establishment. There is danger on both sides no doubt; but we have only seen the evils arising on the side of the State Gov^{ts}. Those on the other side remain to be displayed. The example of Cong^s does not apply. Cong^s had no power to carry their acts into execution, as the Nat^l Gov^t will have. On M^r Dickinson's motion for an appointment of the Senate by the State Legislatures, Mass. ay. C^t ay. N. Y. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gerry gave notice that he w^d tomorrow move for a reconsideration of the mode of appointing the Nat^l Executive in order to substitute an appointm^t by the State Executives. The Committee rose & The House adj^d. FRIDAY JUNE 8^{TH} IN COMMITTEE OF THE WHOLE. On a reconsideration of the clause giving the Nat^l Legislature a negative on such laws of the States as might be contrary to the articles of Union, or Treaties with foreign nations, M^r Pinkney moved "that the National Legislature sh^d have authority to negative all laws which they sh^d judge to be improper." He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it w^d be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations: that this universal negative was in fact the corner stone of an efficient national Gov^t; that under the British Gov^t the negative of the Crown had been found beneficial, and the _States_ are more one nation now, than the _Colonies_ were then. M^r Madison seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect System. Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy w^d lie in an appeal to coercion. Was such a remedy eligible? was it practicable? Could the national resources, if exerted to the utmost enforce a national decree ag^{st} Mass^{ts} abetted perhaps by several of her neighbours? It w^d not be possible. A small proportion of the Community, in a compact situation acting on the defensive, and at one of its extremities, might at any time bid defiance to the National authority. Any Gov^t for the U. States formed on the supposed practicability of using force ag^{st} the unconstitutional proceedings of the States, w^d prove as visionary & fallacious as the Gov^t of Cong^s. The negative w^d render the use of force unnecessary. The States c^d of themselves pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases. A discrimination w^d only be a fresh source of contention between the two authorities. In a word, to recur to the illustrations borrowed from the planetary system. This prerogative of the General Gov^t, is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System. M^r Williamson was ag^{st} giving a power that might restrain the States from regulating their internal police. M^r Gerry c^d not see the extent of such a power, and was ag^{st} every power that was not necessary. He thought a remonstrance ag^{st} unreasonable acts of the States w^d reclaim them. If it sh^d not force might be resorted to. He had no objection to authorize a negative to paper money and similar measures. When the confederation was depending before Congress, Massachusetts was then for inserting the power of emitting paper money am^g the exclusive powers of Congress. He observed that the proposed negative w^d extend to the regulations of the Militia, a matter on which the existence of a State might depend. The Nat^l Legislature with such a power may enslave the States. Such an idea as this will never be acceded to. It has never been suggested or conceived among the people. No speculative projector, and there are eno' of that character among us, in politics as well as in other things, has in any pamphlet or newspaper thrown out the idea. The States too have different interests and are ignorant of each other's interests. The Negative therefore will be abused. New States too having separate views from the old States will never come into the Union. They may even be under some foreign influence; are they in such case to participate in the negative on the will of the other States? M^r Sherman thought the cases in which the negative ought to be exercised, might be defined. He wished the point might not be decided till a trial at least sh^d be made for that purpose. M^r Wilson would not say what modifications of the proposed power might be practicable or expedient. But however novel it might appear the principle of it when viewed with a close & steady eye, is right. There is no instance in which the laws say that the individual sh^d be bound in one case, & at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual person may happen as well as over the individual States. Federal liberty is to the States, what civil liberty, is to private individuals, and States are not more unwilling to purchase it, by the necessary concession of their political sovereignty, than the savage is to purchase Civil liberty by the surrender of the personal sovereignty, which he enjoys in a State of nature. A definition of the cases in which the Negative should be exercised, is impracticable. A discretion must be left on one side or the other? will it not be most safely lodged on the side of the Nat^l Gov^t? Among the first sentiments expressed in the first Cong^s one was that Virg^a is no more, that Mass^{ts} is no [more], that P^a is no more &c. We are now one nation of brethren. We must bury all local interests & distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Gov^{ts} formed than their jealousy & ambition began to display themselves. Each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests? M^r Dickenson deemed it impossible to draw a line between the cases proper & improper for the exercise of the negative. We must take our choice of two things. We must either subject the States to the danger of being injured by the power of the Nat^l Gov^t or the latter to the danger of being injured by that of the States. He thought the danger greater from the States. To leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible. M^r Bedford. In answer to his colleague's question, where w^d be the danger to the States from this power, would refer him to the smallness of his own State which may be injured at pleasure without redress. It was meant he found to strip the small States of their equal right of suffrage. In this case Delaware would have about 1/90 for its share in the General Councils, whilst P^a & V^a would possess 1/3 of the whole. Is there no difference of interests, no rivalship of commerce, of manufactures? Will not these large States crush the small ones whenever they stand in the way of their ambitious or interested views. This shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the priñple of representation. And after all, if a State does not obey the law of the new System, must not force be resorted to as the only ultimate remedy, in this as in any other system. It seems as if P^a & V^a by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence. Besides, How can it be thought that the proposed negative can be exercised? Are the laws of the States to be suspended in the most urgent cases until they can be sent seven or eight hundred miles, and undergo the deliberation of a body who may be incapable of Judging of them? Is the National Legislature too to sit continually in order to revise the laws of the States? M^r Madison observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. The case of laws of urgent necessity must be provided for by some emanation of the power from the Nat^l Gov^t into each State so far as to give a temporary assent at least. This was the practice in the Royal Colonies before the Revolution and would not have been inconvenient if the supreme power of negativing had been faithful to the American interest, and had possessed the necessary information. He supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly. He asked M^r B. what would be the consequence to the small States of a dissolution of the Union w^{ch} seemed likely to happen if no effectual substitute was made for the defective System existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? If the large States possessed the Avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a Gen^l Gov^t was withdrawn. M^r Butler was vehement ag^{st} the Negative in the proposed extent, as cutting off all hope of equal justice to the distant States. The people there would not he was sure give it a hearing. On the question for extending the negative power to all cases as proposed by (M^r P. & M^r M.) Mass. ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. div^d. M^r Read & M^r Dickenson ay. M^r Bedford & M^r Basset no. Mary^d no. V^a ay. M^r R. M^r Mason no. M^r Blair, Doc^r M^c C^g M^r M. ay. Gen^l W. not consulted. N. C. no. S. C. no. Geo no. On motion of M^r Gerry and M^r King tomorrow was assigned for reconsidering the mode of appointing the National Executive: the reconsideration being voted for by all the States except Connecticut & N. Carolina. M^r Pinkney and M^r Rutlidge moved to add to the Resol^n 4. agreed to by the Com^e the following, viz. "that the States be divided into three classes, the 1^{st} class to have 3 members, the 2^d two, & the 3^d one member each, that an estimate be taken of the comparative importance of each State at fixed periods, so as to ascertain the number of members they may from time to time be entitled to." The Committee then rose and the House adjourned. SATURDAY JUNE 9^{TH}[71] MR. LUTHER MARTIN FROM MARYLAND TOOK HIS SEAT. IN COMMITTEE OF THE WHOLE. [71] Edward Carrington wrote to Jefferson from New York, June 9, 1787: "The debates and proceedings of the Convention are kept in profound secrecy--opinions of the probable result of their deliberations can only be formed from the prevailing impressions of men of reflection and understanding--these are reducible to two schemes--the first, a consolidation of the whole Empire into one republic, leaving in the States nothing more than subordinate courts for facilitating the administration of the Laws--the second an investiture of the foederal sovereignty with full and independent authority as to the Trade, Revenues, and forces of the union, and the rights of peace and war, together with a negative upon all the acts of the State legislatures. The first idea, I apprehend, would be impracticable, and therefore do not suppose it can be adopted--general Laws through a Country embracing so many climates, productions, and manners as the United States, would operate many oppressions & a general legislature would be found incompetent to the formation of local ones, as a majority would in every instance, be ignorant of, and unaffected by the objects of legislation.... Something like the second will probably be formed--indeed I am certain that nothing less than what will give the foederal sovereignty a compleat controul over the state Governments, will be thought worthy of discussion--such a scheme constructed upon well adjusted principles would certainly give us stability and importance as a nation, and if the Executive powers can be sufficiently checked, must be eligible--unless the whole has a decided influence over the parts, the constant effort will be to resume the delegated powers, and there cannot be an inducement in the foederal sovereignty to refuse its assent to an innocent act of a State.... The Eastern opinions are for a total surrender of the state Sovereignties, and indeed some amongst them go to a monarchy at once--they have verged to anarchy, while to the southward we have only felt an inconvenience, and their proportionate disposition to an opposite extreme is a natural consequence."--_Jeff. MSS._ M^r Gerry, according to previous notice given by him, moved "that the national Executive should be elected by the Executives of the States whose proportion of votes should be the same with that allowed to the States in the election of the Senate." If the appointm^t should be made by the Nat^l Legislature, it would lessen that independence of the Executive which ought to prevail, would give birth to intrigue and corruption between the Executive & Legislature previous to the election, and to partiality in the Executive afterwards to the friends who promoted him. Some other mode therefore appeared to him necessary. He proposed that of appointing by the State Executives as most analogous to the principle observed in electing the other branches of the Nat^l Gov^t; the first branch being chosen by the _people_ of the States, & the 2^d by the Legislatures of the States, he did not see any objection ag^{st} letting the Executive be appointed by the Executives of the States. He supposed the Executives would be most likely to select the fittest men, and that it would be their interest to support the man of their own choice. M^r Randolph urged strongly the inexpediency of M^r Gerry's mode of appointing the Nat^l Executive. The confidence of the people would not be secured by it to the Nat^l magistrate. The small States would lose all chance of an appointm^t from within themselves. Bad appointments would be made; the Executives of the States being little conversant with characters not within their own small spheres. The State Executives too notwithstanding their constitutional independence, being in fact dependent on the State Legislatures will generally be guided by the views of the latter, and prefer either favorites within the States, or such as it may be expected will be most partial to the interests of the State. A Nat^l Executive thus chosen will not be likely to defend with becoming vigilance & firmness the National rights ag^{st} State encroachments. Vacancies also must happen. How can these be filled? He could not suppose either that the Executives would feel the interest in supporting the Nat^l Executive which had been imagined. They will not cherish the great Oak which is to reduce them to paltry shrubs. On the question for referring the appointment of the Nat^l Executive to the State Executives as prop^d by M^r Gerry Mass^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. div^d. M^d no. V^a no. S. C. no. Geo. no.[72] [72] "Carried against the motion, 10 noes, and Delaware divided."--Yates, _Secret Proceedings_, etc., 111. The Journal also includes North Carolina among the noes.--_Journal of the Federal Convention_, 110. M^r Patterson moves that the Committee resume the clause relating to the rule of suffrage in the Nat^l Legislature. M^r Brearly[73] seconds him. He was sorry he said that any question on this point was brought into view. It had been much agitated in Cong^s at the time of forming the Confederation, and was then rightly settled by allowing to each sovereign State an equal vote. Otherwise the smaller States must have been destroyed instead of being saved. The substitution of a ratio, he admitted carried fairness on the face of it; but on a deeper examination was unfair and unjust. Judging of the disparity of the States by the quota of Cong^s, Virg^a would have 16 votes, and Georgia but one. A like proportion to the others will make the whole number ninety. There will be 3 large states, and 10 small ones. The large States by which he meant Mass^{ts} Pen^a & Virg^a will carry every thing before them. It had been admitted, and was known to him from facts within N. Jersey that where large & small counties were united into a district for electing representatives for the district, the large counties always carried their point, and Consequently that the large States would do so. Virg^a with her sixteen votes will be a solid column indeed, a formidable phalanx. While Georgia with her Solitary vote, and the other little States will be obliged to throw themselves constantly into the scale of some large one, in order to have any weight at all. He had come to the convention with a view of being as useful as he could in giving energy and stability to the federal Government. When the proposition for destroying the equality of votes came forward, he was astonished, he was alarmed. Is it fair then it will be asked that Georgia should have an equal vote with Virg^a. He would not say it was. What remedy then? One only, that a map of the U. S. be spread out, that all the existing boundaries be erased, and that a new partition of the whole be made into 13 equal parts. [73] "Mr. Brearly is a man of good, rather than of brilliant parts. He is a Judge of the Supreme Court of New Jersey, and is very much in the esteem of the people. As an Orator he has little to boast of, but as a Man he has every virtue to recommend him. Mr. Brearly is about 40 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 327. M^r Patterson considered the proposition for a proportional representation as striking at the existence of the lesser States. He w^d premise however to an investigation of this question some remarks on the nature structure and powers of the Convention. The Convention he said was formed in pursuance of an Act of Cong^s that this act was recited in several of the Commissions, particularly that of Mass^{ts} which he required to be read: that the amendment of the Confederacy was the object of all the laws and Commissions on the subject: that the articles of the Confederation were therefore the proper basis of all the proceedings of the Convention. We ought to keep within its limits, or we should be charged by our Constituents with usurpation, that the people of America were sharpsighted and not to be deceived. But the Commissions under which we acted were not only the measure of our power, they denoted also the sentiments of the States on the subject of our deliberation. The idea of a National Gov^t as contradistinguished from a federal one, never entered into the mind of any of them, and to the public mind we must accommodate ourselves. We have no power to go beyond the federal Scheme, and if we had the people are not ripe for any other. We must follow the people; the people will not follow us.--The _proposition_ could not be maintained whether considered in reference to us as a nation, or as a confederacy. A confederacy supposes sovereignty in the members composing it & sovereignty supposes equality. If we are to be considered as a nation, all State distinctions must be abolished, the whole must be thrown into hotchpot, and when an equal division is made, then there may be fairly an equality of representation. He held up Virg^a Mass^{ts} & P^a as the three large States, and the other ten as small ones; repeating the calculations of M^r Brearly, as to the disparity of votes which w^d take place, and affirming that the small States would never agree to it. He said there was no more reason that a great individual State contributing much, should have more votes than a small one contributing little, than that a rich individual citizen should have more votes than an indigent one. If the rateable property of A was to that of B as 40 to 1, ought A for that reason to have 40 times as many votes as B. Such a principle would never be admitted, and if it were admitted would put B entirely at the mercy of A. As A has more to be protected than B so he ought to contribute more for the common protection. The same may be said of a large State w^{ch} has more to be protected than a small one. Give the large States an influence in proportion to their magnitude, and what will be the consequence? Their ambition will be proportionally increased, and the small States will have every thing to fear. It was once proposed by Galloway & some others that America should be represented in the British Parl^t and then be bound by its laws. America could not have been entitled to more than 1/3 of the n^o of Representatives which would fall to the share of G. B. Would American rights & interests have been safe under an authority thus constituted? It has been said that if a Nat^l Gov^t is to be formed so as to operate on the people, and not on the States, the representatives ought to be drawn from the people. But why so? May not a Legislature filled by the State Legislatures operate on the people who chuse the State Legislatures? or may not a practicable coercion be found. He admitted that there was none such in the existing System.--He was attached strongly to the plan of the existing Confederacy, in which the people chuse their Legislative representatives; and the Legislatures their federal representatives. No other amendments were wanting than to mark the orbits of the States with due precision, and provide for the use of coercion, which was the great point. He alluded to the hint thrown out heretofore by M^r Wilson of the necessity to which the large States might be reduced of confederating among themselves, by a refusal of the others to concur. Let them unite if they please, but let them remember that they have no authority to compel the others to unite. N. Jersey will never confederate on the plan before the Committee. She would be swallowed up. He had rather submit to a monarch, to a despot, than to such a fate. He would not only oppose the plan here but on his return home do every thing in his power to defeat it there. M^r Wilson, hoped if the Confederacy should be dissolved, that a _majority_, that a _minority_ of the States would unite for their safety. He entered elaborately into the defence of a proportional representation, stating for his first position that as all authority was derived from the people, equal numbers of people ought to have an equal n^o of representatives, and different numbers of people different numbers of representatives. This principle had been improperly violated in the Confederation, owing to the urgent circumstances of the time. As to the case of A. & B. stated by M^r Patterson, he observed that in districts as large as the States, the number of people was the best measure of their comparative wealth. Whether therefore wealth or numbers were to form the ratio it would be the same. M^r P. admitted persons, not property to be the measure of suffrage. Are not the Citizens of Pen^a equal to those of N. Jersey? does it require 150 of the former to balance 50 of the latter? Representatives of different districts ought clearly to hold the same proportion to each other, as their respective Constituents hold to each other. If the small States will not confederate on this plan, Pen^a & he presumed some other States, would not confederate on any other. We have been told that each State being sovereign, all are equal. So each man is naturally a sovereign over himself, and all men are therefore naturally equal. Can he retain this equality when he becomes a member of Civil Government. He can not. As little can a Sovereign State, when it becomes a member of a federal govern^t. If N. J. will not part with her sovereignty it is vain to talk of Gov^t. A new partition of the States is desirable, but evidently & totally impracticable. M^r Williamson illustrated the cases by a comparison of the different States, to Counties of different sizes within the same State; observing that proportional representation was admitted to be just in the latter case, and could not therefore be fairly contested in the former. The Question being about to be put M^r Patterson hoped that as so much depended on it, it might be thought best to postpone the decision till tomorrow, which was done, nem. con. The Com^e rose & the House adjourned. MONDAY, JUNE 11^{TH} M^R ABRAHAM BALDWIN FROM GEORGIA TOOK HIS SEAT. IN COMMITTEE OF THE WHOLE. The clause concerning the rule of suffrage in the Nat^l Legislature postponed on Saturday was resumed. M^r Sherman proposed that the proportion of suffrage in the 1^{st} branch should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more. He said as the States would remain possessed of certain individual rights, each State ought to be able to protect itself: otherwise a few large States will rule the rest. The House of Lords in England he observed had certain particular rights under the Constitution, and hence they have an equal vote with the House of Commons that they may be able to defend their rights. M^r Rutlidge proposed that the proportion of suffrage in the 1^{st} branch should be according to the quotas of contribution. The justice of this rule he said could not be contested. M^r Butler urged the same idea: adding that money was power; and that the States ought to have weight in the Gov^t in proportion to their wealth. M^r King & M^r Wilson,[74] in order to bring the question to a point moved "that the right of suffrage in the first branch of the national Legislature ought not to be according [to] the rule established in the articles of Confederation, but according to some equitable ratio of representation." The clause so far as it related to suffrage in the first branch was postponed in order to consider this motion. [74] In the printed Journal Mr. Rutlidge is named as the seconder of the motion.--Madison's Note. M^r Dickenson contended for the _actual_ contributions of the States as the rule of their representation & suffrage in the first branch. By thus connecting the interests of the States with their duty, the latter would be sure to be performed. M^r King remarked that it was uncertain what mode might be used in levying a National revenue; but that it was probable, imposts would be one source of it. If the _actual_ contributions were to be the rule the non-importing States, as Con^t & N. Jersey, w^d be in a bad situation indeed. It might so happen that they w^d have no representation. This situation of particular States had been always one powerful argument in favor of the 5 Per C^t impost. The question being ab^t to be put Doc^r Franklin s^d he had thrown his ideas of the matter on a paper w^{ch} Mr. Wilson read to the Committee in the words following--Mr. Chairman It has given me great pleasure to observe that till this point, the proportion of representation, came before us, our debates were carried on with great coolness & temper. If any thing of a contrary kind, has on this occasion appeared. I hope it will not be repeated; for we are sent here to _consult_, not to _contend_, with each other; and declarations of a fixed opinion, and of determined resolution, never to change it, neither enlighten nor convince us. Positiveness and warmth on one side, naturally beget their like on the other; and tend to create and augment discord & division in a great concern, wherein harmony & Union are extremely necessary to give weight to our Councils, and render them effectual in promoting & securing the common good. I must own that I was originally of opinion it would be better if every member of Congress, or our national Council, were to consider himself rather as a representative of the whole, than as an Agent for the interests of a particular State; in which case the proportion of members for each State would be of less consequence, & it would not be very material whether they voted by States or individually. But as I find this is not to be expected, I now think the number of Representatives should bear some proportion to the number of the Represented; and that the decisions sh^d be by the majority of members, not by the majority of the States. This is objected to from an apprehension that the greater States would then swallow up the smaller. I do not at present clearly see what advantage the greater States could propose to themselves by swallowing up the smaller, and therefore do not apprehend they would attempt it. I recollect that in the beginning of this Century, When the Union was proposed of the two Kingdoms, England & Scotland, the Scotch Patriots were full of fears, that unless they had an equal number of Representatives in Parliament, they should be ruined by the superiority of the English. They finally agreed however that the different proportions of importance in the Union, of the two Nations should be attended to, whereby they were to have only forty members in the House of Commons, and only sixteen in the House of Lords; A very great inferiority of numbers! And yet to this day I do not recollect that any thing has been done in the Parliament of Great Britain to the prejudice of Scotland; and whoever looks over the lists of Public officers, Civil & Military of that nation will find I believe that the North Britons enjoy at least their full proportion of emolument. But, sir, in the present mode of voting by States, it is equally in the power of the lesser States to swallow up the greater; and this is mathematically demonstrable. Suppose for example, that 7 smaller States had each 3 members in the House, and the 6 larger to have one with another 6 members; and that upon a question, two members of each smaller State should be in the affirmative and one in the Negative, they would make Affirmatives 14 Negatives 7 And that all the larger States should be unanimously in the Negative, they would make Negatives 36 --- In all 43 It is then apparent that the 14 carry the question against the 43, and the minority overpowers the majority, contrary to the common practice of Assemblies in all Countries and Ages. The greater States Sir are naturally as unwilling to have their property left in the disposition of the smaller, as the smaller are to have theirs in the disposition of the greater. An honorable gentleman has, to avoid this difficulty, hinted a proposition of equalizing the States. It appears to me an equitable one, and I should, for my own part, not be against such a measure, if it might be found practicable. Formerly, indeed, when almost every province had a different Constitution, some with greater others with fewer privileges, it was of importance to the borderers when their boundaries were contested, whether by running the division lines, they were placed on one side or the other. At present when such differences are done away, it is less material. The Interest of a State is made up of the interests of its individual members. If they are not injured, the State is not injured. Small States are more easily well & happily governed than large ones. If therefore in such an equal division, it should be found necessary to diminish Pennsylvania, I should not be averse to the giving a part of it to N. Jersey, and another to Delaware. But as there would probably be considerable difficulties in adjusting such a division; and however equally made at first, it would be continually varying by the augmentation of inhabitants in some States, and their fixed proportion in others; and thence frequent occasion for new divisions, I beg leave to propose for the consideration of the Committee another mode, which appears to me to be as equitable, more easily carried into practice, and more permanent in its nature. Let the weakest State say what proportion of money or force it is able and willing to furnish for the general purposes of the Union. Let all the others oblige themselves to furnish each an equal proportion. The whole of these joint supplies to be absolutely in the disposition of Congress. The Congress in this case to be composed of an equal number of Delegates from each State. And their decisions to be by the Majority of individual members voting. If these joint and equal supplies should on particular occasions not be sufficient, Let Congress make requisitions on the richer and more powerful States for further aids, to be voluntarily afforded, leaving to each State the right of considering the necessity and utility of the aid desired, and of giving more or less as it should be found proper. This mode is not new. It was formerly practised with success by the British Government with respect to Ireland and the Colonies. We sometimes gave even more than they expected, or thought just to accept; and in the last war carried on while we were united, they gave us back in 5 years a million Sterling. We should probably have continued such voluntary contributions, whenever the occasions appeared to require them for the common good of the Empire. It was not till they chose to force us, and to deprive us of the merit and pleasure of voluntary contributions that we refused & resisted. Those contributions however were to be disposed of at the pleasure of a Government in which we had no representative. I am therefore persuaded, that they will not be refused to one in which the Representation shall be equal. My learned colleague (M^r Wilson) has already mentioned that the present method of voting by States, was submitted to originally by Congress, under a conviction of its impropriety, inequality, and injustice. This appears in the words of their Resolution. It is of Sep^r 6. 1774. The words are "Resolved that in determining questions in this Cong^s each Colony or province shall have one vote: The Cong^s not being possessed of or at present able to procure materials for ascertaining the importance of each Colony." On the question for agreeing to M^r King's and M^r Wilson's motion it passed in the affirmative. Mass^{ts} ay. C^t ay. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay. It was then moved by M^r Rutlidge, 2^{ded} by M^r Butler to add to the words "equitable ratio of representation" at the end of the motion just agreed to, the words "according to the quotas of contribution." On motion of M^r Wilson seconded by M^r Pinkney, this was postponed; in order to add, after the words "equitable ratio of representation" the words following: "in proportion to the whole number of white & other free Citizens & inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes, in each State," this being the rule in the Act of Congress agreed to by eleven States, for apportioning quotas of revenue on the States, and requiring a Census only every 5, 7, or 10 years. M^r Gerry thought property not the rule of representation. Why then sh^d the blacks, who were property in the South, be in the rule of representation more than the Cattle & horses of the North.[75] [75] After Gerry spoke, according to Yates, "Mr. Madison was of opinion at present, to fix the standard of representation, and let the detail be the business of a sub-committee."--_Secret Proceedings_, p. 116. On the question,--Mass: Con: N. Y. Pen: Mary^d Virg^a N. C. S. C. & Geo: were in the affirmative: N. J. & Del: in the negative. M^r Sherman moved that a question be taken whether each State shall have one vote in the 2^d branch. Every thing he said depended on this. The smaller States would never agree to the plan on any other principle than an equality of suffrage in this branch. M^r Elsworth[76] seconded the motion. [76] "M^r Elsworth is a Judge of the Supreme Court in Connecticut;--he is Gentleman of a clear, deep, and copius understanding; eloquent, and connected in public debate; and always attentive to his duty. He is very happy in a reply, and choice in selecting such parts of his adversary's arguments as he finds make the strongest impressions,--in order to take off the force of them, so as to admit the power of his own. M^r Elsworth is about 37 years of age, a Man much respected for his integrity, and venerated for his abilities."--Pierce's Notes, _Am. Hist. Rev._, iii., 326. On the question for allowing each State one vote in the 2^d branch, Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. M^r Wilson & M^r Hamilton moved that the right of suffrage in the 2^d branch ought to be according to the same rule as in the 1^{st} branch. On this question for making the ratio of representation the same in the 2^d as in the 1^{st} branch it passed in the affirmative; Mass^{ts} ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Resol: 11, for guarantying Republican Gov^t & territory to each State, being considered--the words "or partition," were, on motion of M^r Madison added, after the words "voluntary junction;" Mas. N. Y. P. V^a N. C. S. C. G. ay. Con: N. J. Del: M^d no. M^r Read disliked the idea of guarantying territory. It abetted the idea of distinct States w^{ch} would be a perpetual source of discord. There can be no cure for this evil but in doing away States altogether and uniting them all into one great Society. Alterations having been made in the Resolution, making it read, "that a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States," the whole was agreed to nem. con.[77] [77] Yates attributes this amendment to Madison. "Mr. Madison moved an amendment, to add to or alter the resolution as follows: The republican constitutions and the existing laws of each state, to be guaranteed by the United States."--_Secret Proceedings_, etc., 116. Resolution 13. for amending the national Constitution hereafter without consent of the Nat^l Legislature being considered, Several members did not see the necessity of the Resolution at all, nor the propriety of making the consent of the Nat^l Legisl. unnecessary. Col. Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Nat^l Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendm^t. M^r Randolph enforced these arguments. The words, "without requiring the consent of the Nat^l Legislature" were postponed. The other provision in the clause passed nem. con. Resolution 14. requiring oaths from the members of the State Gov^{ts} to observe the Nat^l Constitution & laws, being considered,[78] [78] "Mr. Williamson. This resolve will be unnecessary, as the union will become the law of the land."--Yates, _Secret Proceedings_, etc., 117. M^r Sherman opposed it as unnecessarily intruding into the State jurisdictions. M^r Randolph considered it necessary to prevent that competition between the National Constitution & laws & those of the particular States, which had already been felt. The officers of the States are already under oath to the States. To preserve a due impartiality they ought to be equally bound to the Nat^l Gov^t. The Nat^l authority needs every support we can give it. The Executive & Judiciary of the States, notwithstanding their nominal independence on the State Legislatures are in fact, so dependent on them, that unless they be brought under some tie to the Nat^l System, they will always lean too much to the State systems, whenever a contest arises between the two. M^r Gerry did not like the clause. He thought there was as much reason for requiring an oath of fidelity to the States from Nat^l officers, as vice versa. M^r Luther Martin moved to strike out the words requiring such an oath from the State officers, viz "within the several States," observing that if the new oath should be contrary to that already taken by them it would be improper; if coincident the oaths already taken will be sufficient. On the question for striking out as proposed by Mr. L. Martin Mass^{ts} no. Con^t ay. N. Y. no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. Question on whole Resolution as proposed by M^r Randolph; Mass^{ts} ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. Com^e rose & House Adj^d. TUESDAY JUNE 12^{TH} IN COMMITTEE OF WHOLE The Question taken on the Resolution 15, to wit, referring the new system to the people of the States for ratification it passed in the affirmative Mass^{ts} ay. Con^t no. N. Y. no. N. J. no. P^a[79] ay. Del. div^d. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay. [79] Pennsylvania omitted in the printed Journal. The vote is there entered as of June 11th.--Madison's Note. M^r Sherman & M^r Elseworth moved to fill the blank left in the 4^{th} Resolution for the periods of electing the members of the first branch with the words, "every year;" Mr. Sherman observing that he did it in order to bring on some question. M^r Rutlidge proposed "every two years." M^r Jennifer[80] prop^d, "every three years," observing that the too great frequency of elections rendered the people indifferent to them, and made the best men unwilling to engage in so precarious a service. [80] "M^r Jenifer is a Gentleman of fortune in Maryland;--he is always in good humour, and never fails to make his company pleased with him. He sits silent in the Senate, and seems to be conscious that he is no politician. From his long continuance in single life, no doubt but he has made the vow of celibacy. He speaks warmly of the Ladies notwithstanding. M^r Jenifer is about 55 years of Age, and once served as Aid de Camp to Major Gen^l Lee."--Pierce's Notes, _Am. Hist. Rev._, iii., 330. M^r Madison seconded the motion for three years. Instability is one of the great vices of our republics, to be remedied. Three years will be necessary, in a Government so extensive, for members to form any knowledge of the various interests of the States to which they do not belong, and of which they can know but little from the situation and affairs of their own. One year will be almost consumed in preparing for and travelling to & from the seat of national business. M^r Gerry. The people of New England will never give up the point of annual elections, they know of the transition made in England from triennial to septennial elections, and will consider such an innovation here as the prelude to a like usurpation. He considered annual elections as the only defence of the people ag^{st} tyranny. He was as much ag^{st} a triennial House as ag^{st} a hereditary Executive. M^r Madison, observed that if the opinions of the people were to be our guide, it w^d be difficult to say what course we ought to take. No member of the Convention could say what the opinions of his Constituents were at this time; much less could he say what they would think if possessed of the information & lights possessed by the members here; & still less what would be their way of thinking 6 or 12 months hence. We ought to consider what was right & necessary in itself for the attainment of a proper Governm^t. A plan adjusted to this idea will recommend itself--The respectability of this convention will give weight to their recommendation of it. Experience will be constantly urging the adoption of it, and all the most enlightened & respectable citizens will be its advocates. Should we fall short of the necessary & proper point, this influential class of Citizens, will be turned against the plan, and little support in opposition to them can be gained to it from the unreflecting multitude. M^r Gerry repeated his opinion that it was necessary to consider what the people would approve. This had been the policy of all Legislators. If the reasoning of Mr. Madison were just, and we supposed a limited Monarchy the best form in itself, we ought to recommend it, tho' the genius of the people was decidedly adverse to it, and having no hereditary distinctions among us, we were destitute of the essential materials for such an innovation. On the question for the triennial election of the 1^{st} branch Mass. no. (M^r King ay.) M^r Ghorum wavering. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. ay. The words requiring members of y^e 1^{st} branch to be of the age of ---- years were struck out Maryland alone no. The words "_liberal compensation for members_," being consid^d M^r Madison moves to insert the words, "_& fixt_." He observed that it would be improper to leave the members of the Nat^l legislature to be provided for by the State Legisl^s, because it would create an improper dependence; and to leave them to regulate their own wages, was an indecent thing, and might in time prove a dangerous one. He thought wheat or some other article of which the average price throughout a reasonable period preceding might be settled in some convenient mode, would form a proper standard. Col. Mason seconded the motion; adding that it would be improper for other reasons to leave the wages to be regulated by the States. 1. the different States would make different provision for their representatives, and an inequality would be felt among them, whereas he thought they ought to be in all respects equal. 2. the parsimony of the States might reduce the provision so low that as had already happened in choosing delegates to Congress, the question would be not who were most fit to be chosen, but who were most willing to serve. On the question for inserting the words, "and fixt" Mass^{ts} no. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. Doc^r Franklyn said he approved of the amendment just made for rendering the salaries as fixed as possible; but disliked the word "_liberal_." He would prefer the word moderate if it was necessary to substitute any other. He remarked the tendency of abuses in every case, to grow of themselves when once begun, and related very pleasantly the progression in ecclesiastical benefices, from the first departure from the gratuitous provision for the Apostles, to the establishment of the papal system. The word "liberal" was struck out nem con. On the motion of M^r Pierce, that the wages should be paid out of the National Treasury, Mass^{ts} ay. C^t no. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. G. ay. Question on the clause relating to term of service & compensation of 1^{st} branch, Mass^{ts} ay. C^t no. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. On a question for striking out the "_ineligibility_ of members of the Nat^l Legis: to _State offices_," Mass^{ts} div^d. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. no. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. no. On the question for agreeing to the clause as amended, Mass^{ts} ay. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. On a question for making members of the Nat^l Legislature _ineligible_ to any office under the Nat^l Gov^t for the term of 3 years after ceasing to be members, Mass^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. On the question for such ineligibility for one year, Mass^{ts} ay. C^t ay. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. no. On question moved by Mr. Pinckney, for striking out "incapable of re-election into 1^{st} branch of the Nat^l Legisl. for ---- years, and subject to recall" ag^d to nem. con. On question for striking out from the Resol: 5 the words requiring members of the Senatorial branch to be of the age of ---- years at least Mass^{ts} no. Con^t ay. N. Y. no. N. J. ay. P^a ay. Del. no. M^d no. V^a no. N. C. div^d. S. C. no. Geo. div^d. On the question for filling the blank with 30 years as the qualification; it was agreed to, Mass^{ts} ay. C^t no. N. Y. ay. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no. M^r Spaight moved to fill the blank for the duration of the appointm^{ts} to the 2^d branch of the National Legislature with the words "7 years." M^r Sherman, thought 7 years too long. He grounded his opposition he said on the principle that if they did their duty well, they would be reelected. And if they acted amiss, an earlier opportunity should be allowed for getting rid of them. He preferred 5 years which w^d be between the terms of the 1^{st} branch & of the executive. M^r Pierce proposed 3 years. 7 years would raise an alarm. Great mischiefs had arisen in England from their septennial Act which was reprobated by most of their patriotic Statesmen. M^r Randolph was for the term of 7 years. The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this 2^d branch is to controul the democratic branch of the Nat^l Legislature. If it be not a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it. The Senate of Maryland constituted on like principles had been scarcely able to stem the popular torrent. No mischief can be apprehended, as the concurrence of the other branch, and in some measure, of the Executive, will in all cases be necessary. A firmness & independence may be the more necessary also in this branch, as it ought to guard the Constitution ag^{st} encroachments of the Executive who will be apt to form combinations with the demagogues of the popular branch. M^r Madison, considered 7 years as a term by no means too long. What we wished was to give to the Gov^t that stability which was every where called for, and which the Enemies of the Republican form alledged to be inconsistent with its nature. He was not afraid of giving too much stability by the term of Seven years. His fear was that the popular branch would still be too great an overmatch for it. It was to be much lamented that we had so little direct experience to guide us. The Constitution of Maryland was the only one that bore any analogy to this part of the plan. In no instance had the Senate of Mary^d created just suspicions of danger from it. In some instances perhaps it may have erred by yielding to the H. of Delegates. In every instance of their opposition to the measures of the H. of D. they had had with them the suffrages of the most enlightened and impartial people of the other States as well as of their own. In the States where the Senates, were chosen in the same manner as the other branches, of the Legislature, and held their seats for 4 years, the institution was found to be no check whatever ag^{st} the instabilities of the other branches. He conceived it to be of great importance that a stable & firm Gov^t, organized in the republican form should be held out to the people. If this be not done, and the people be left to judge of this species of Gov^t by y^e operations of the defective systems under which they now live, it is much to be feared the time is not distant when, in universal disgust, they will renounce the blessing which they have purchased at so dear a rate, and be ready for any change that may be proposed to them. On the question for "seven years" as the term for the 2^d branch Mass^{ts} divided. (M^r King, M^r Ghorum ay, M^r Gerry, M^r Strong, no) Con^t no. N. Y. div^d N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Butler and M^r Rutlidge proposed that the members of the 2^d branch should be entitled to no salary or compensation for their services. On the question,[81]-- Mass^{ts} div^d. Con^t ay. N. Y. no. N. J. no. P. no. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. no. [81] (It is probable y^e votes here turned chiefly on the idea that if the salaries were not here provided for, the members would be paid by their respective States) This note for the bottom margin.--Madison's Note. It was then moved & agreed that the clauses respecting the stipends & ineligibility of the 2^d branch be the same as, of the 1^{st} branch:--Con: disagreeing to the ineligibility. It was moved & 2^{ded} to alter the Resol: 9. so as to read "that the jurisdiction of the supreme tribunal shall be to hear & determine in the dernier resort, all piracies, felonies, &c." It was moved & 2^{ded} to strike out "all piracies & felonies on the high seas," which was agreed to. It was moved & agreed to strike out "all captures from an enemy." It was moved & agreed to strike out "other States" and insert "two distinct States of the Union." It was moved & agreed to postpone the consideration of the Resolution 9, relating to the Judiciary: The Com^e then rose & the House Adjourned. WEDNESDAY JUNE 13.[82] IN COMMITTEE OF THE WHOLE [82] Edward Carrington wrote to Madison from New York, June 13, 1787: "The public mind is now on the point of a favourable turn to the objects of your meeting, and, being fairly met with the result, will, I am persuaded, eventually embrace it--being calculated for the permanent fitness, and not the momentary habits of the country, it may at first be viewed with hesitation, but derived and patronized as it will be, its influence must extend into an adoption as the present fabric gives way--the work once well done will be done forever, but patched up in accommodation to the whim of the day, it will soon require the hand of the cobbler again, and in every unfortunate experiment the materials are rendered the less fit for that monument of civil liberty which we wish to erect.--Constitute a federal Government, invigorate & check it well--give it then independent powers over the Trade the Revenues, and force of the Union, and all things that involve any relationship to foreign powers--give it also the revisal of all State acts--unless it possesses a compleat controul over the State Governments, the constant effort will be to resume the delegated powers,--nor do I see what inducement the federal sovereignty can have to negative an innocent act of a State--Constitute it in such shape that, its first principles being preserved, it will be a good republic--I wish to see that system have a fair experiment--but let the liability to encroachment be rather from the federal, than the State, governments--in the first case we shall insensibly glide into a monarchy: in the latter nothing but anarchy can be the consequence. "Some Gentlemen think of a total surrender of the State Sovereignty--I see not the necessity of that measure for giving us national stability in consequence--the negative of the federal sovereignty will effectually prevent the existence of any licentious or inconsiderate act--and I believe that even under a new monarchy it would be found necessary thus to continue the local administration--general Laws would operate many particular [undecipherable] and a general legislature would be found incompetent to the formation of local ones--the interest of the United States may be well combined for the common good--but the affairs of so extensive a country are not to be thrown into one mass--an attempt to confederate upon terms materially opposed to the particular Interests would in all probability occasion a dismemberment, and in that event, within a long time yet to come, the prospects of commerce will be at an end as to any degree of national importance, let her fate be what it may as to freedom or vassalage."--_Mad. MSS._ Resol: 9 being resumed The latter parts of the clause relating to the jurisdiction of the Nat^l tribunals, was struck out nem. con in order to leave full room for their organization. M^r Randolph & M^r Madison, then moved the following resolution respecting a National Judiciary,viz "that the jurisdiction of the National Judiciary shall extend to cases, which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony" which was agreed to. M^r Pinkney & M^r Sherman moved to insert after the words "one supreme tribunal" the words "the Judges of which to be appointed by the National Legislature." M^r Madison, objected to an app^t by the whole Legislature. Many of them were incompetent Judges of the requisite qualifications. They were too much influenced by their partialities. The candidate who was present, who had displayed a talent for business in the legislative field, who had perhaps assisted ignorant members in business of their own, or of their Constituents, or used other winning means, would without any of the essential qualifications for an expositor of the laws prevail over a competitor not having these recommendations, but possessed of every necessary accomplishment. He proposed that the appointment should be made by the Senate, which as a less numerous & more select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them. M^r Sherman & M^r Pinkney withdrew their motion, and the app^t by the Senate was ag^d to nem. con. M^r Gerry moved to restrain the Senatorial branch from originating money bills. The other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the Purse-strings. If the Senate should be allowed to originate such bills, they w^d repeat the experiment, till chance should furnish a sett of representatives in the other branch who will fall into their snares. M^r Butler saw no reason for such a discrimination. We were always following the British Constitution when the reason of it did not apply. There was no analogy between the H. of Lords and the body proposed to be established. If the Senate should be degraded by any such discriminations, the best men would be apt to decline serving in it in favor of the other branch. And it will lead the latter into the practice of tacking other clauses to money bills. M^r Madison observed that the Comentators on the Brit: Const: had not yet agreed on the reason of the restriction on the H. of L. in money bills. Certain it was there could be no similar reason in the case before us. The Senate would be the representatives of the people as well as the 1^{st} branch. If they s^d have any dangerous influence over it, they would easily prevail on some member of the latter to originate the bill they wished to be passed. As the Senate would be generally a more capable sett of men, it w^d be wrong to disable them from any preparation of the business, especially of that which was most important, and in our republics, worse prepared than any other. The Gentleman in pursuance of his principle ought to carry the restraint to the _amendment_, as well as the originating of money bills, since, an addition of a given sum w^d be equivalent to a distinct proposition of it. M^r King differed from M^r Gerry, and concurred in the objections to the proposition. M^r Read favored the proposition, but would not extend the restraint to the case of amendments. M^r Pinkney thinks the question premature. If the Senate sh^d be formed on the _same_ proportional representation as it stands at present, they s^d have equal power, otherwise if a different principle s^d be introduced. M^r Sherman. As both branches must concur, there can be no danger whichever way the Senate be formed. We establish two branches in order to get more wisdom, which is particularly needed in the finance business--The Senate bear their share of the taxes, and are also the representatives of the people. What a man does by another, he does by himself is a maxim. In Con^t both branches can originate in all cases, and it has been found safe & convenient. Whatever might have been the reason of the rule as to The H. of Lords, it is clear that no good arises from it now even there. Gen^l Pinkney. This distinction prevails in S. C. and has been a source of pernicious disputes between y^e 2 branches. The Constitution is now evaded, by informal schedules of amendments handed from y^e Senate to the other House. M^r Williamson wishes for a question chiefly to prevent re-discussion. The restriction will have one advantage, it will oblige some member in the lower branch to move, & people can then mark him. On the question for excepting money bills, as prop^d by M^r Gerry, Mass. no. Con^t no. N. Y. ay. N. J. no. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.[83] [83] According to the Journal (121) Pennsylvania was among the noes. Committee rose & M^r Ghorum made report, which was postponed till tomorrow, to give an opportunity for other plans to be proposed. The report was in the words following: Report of the Committee of Whole on M^r Randolph's propositions. 1. Res^d that it is the opinion of this Committee that a National Governm^t ought to be established, consisting of a supreme Legislative, Executive & Judiciary. 2. Resol^d that the National Legislature ought to consist of two branches. 3. Res^d that the members of the first branch of the National Legislature ought to be elected by the people of the several States for the term of three years, to receive fixed Stipends by which they may be compensated for the devotion of their time to public service, to be paid out of the National Treasury: to be ineligible to any office established by a particular State, or under the authority of the U. States, (except those peculiarly belonging to the functions of the first branch), during the term of service, and under the national Government for the Space of one year after its expiration. 4. Res^d that the members of the second branch of the Nat^l Legislature ought to be chosen by the individual Legislatures, to be of the age of 30 years at least, to hold their offices for a term sufficient to ensure their independency, namely, seven years, to receive fixed stipends by which they may be compensated for the devotion of their time to public service to be paid out of the National Treasury; to be ineligible to any office established by a particular State, or under the authority of the U. States, (except those peculiarly belonging to the functions of the second branch) during the term of service, and under the Nat^l Gov^t for the space of one year after its expiration. 5. Res^d that each branch ought to possess the right of originating Acts. 6. Res^d that the Nat^l Legislature ought to be empowered to enjoy the Legislative rights vested in Cong^s by the Confederation, and moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union. 7. Res^d that the rights of suffrage in the 1^{st} branch of the National Legislature, ought not to be according to the rule established in the articles of confederation but according to some equitable ratio of representation, namely, in proportion to the whole number of white & other free citizens & inhabitants, of every age sex and condition, including those bound to servitude for a term of years, & three fifths of all other persons, not comprehended in the foregoing description, except Indians not paying taxes in each State. 8. Resolved that the right of suffrage in the 2^d branch of the National Legislature ought to be according to the rule established for the first. 9. Resolved that a National Executive be instituted to consist of a single person, to be chosen by the Nat^l Legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for--to be ineligible a second time, & to be removeable on impeachment and conviction of malpractices or neglect of duty--to receive a fixed stipend by which he may be compensated for the devotion of his time to public service to be paid out of the national Treasury. 10. Resol^d that the Nat^l Executive shall have a right to negative any Legislative Act, which shall not be afterwards passed unless by two thirds of each branch of the National Legislature. 11. Resol^d that a Nat^l Judiciary be established, to consist of one supreme tribunal, the Judges of which to be appointed by the 2^d branch of the Nat^l Legislature, to hold their offices during good behaviour, & to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution. 12. Resol^d that the Nat^l Legislature be empowered to appoint inferior Tribunals. 13. Res^d that the jurisdiction of the Nat^l Judiciary shall extend to all cases which respect the collection of the Nat^l revenue, impeachments of any Nat^l Officers, and questions which involve the national peace & harmony. 14. Res^d that provision ought to be made for the admission of States lawfully arising within the limits of the U. States, whether from a voluntary junction of Government & territory or otherwise, with the consent of a number of voices in the Nat^l Legislature less than the whole. 15. Res^d that provision ought to be made for the continuance of Congress and their authorities and privileges untill a given day after the reform of the articles of Union shall be adopted and for the completion of all their engagements. 16. Res^d that a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States. 17. Res^d that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary. 18. Res^d that the Legislative, Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union. 19. Res^d that the amendments which shall be offered to the confederation by the Convention ought at a proper time or times after the approbation of Cong^s to be submitted to an Assembly or Assemblies recommended by the several Legislatures to be expressly chosen by the people to consider and decide thereon. THURSDAY JUNE 14. IN CONVENTION. M^r Patterson, observed to the Convention that it was the wish of several deputations, particularly that of N. Jersey, that further time might be allowed them to contemplate the plan reported from the Committee of the Whole, and to digest one purely federal, and contradistinguished from the reported plan. He said they hoped to have such an one ready by tomorrow to be laid before the Convention: And the Convention adjourned that leisure might be given for the purpose. FRIDAY JUNE 15^{TH} 1787 M^r Patterson, laid before the Convention the plan which he said several of the deputations wished to be substituted in place of that proposed by M^r Randolph. After some little discussion of the most proper mode of giving it a fair deliberation it was agreed that it should be referred to a Committee of the Whole, and that in order to place the two plans in due comparison, the other should be recommitted. At the earnest request of M^r Lansing[84] & some other gentlemen, it was also agreed that the Convention should not go into Co[~m]ittee of the whole on the subject till tomorrow, by which delay the friends of the plan proposed by M^r Patterson w^d be better prepared to explain & support it, and all would have an opportu^y of taking copies.[85] [84] "Mr. Lansing is a practising Attorney at Albany, and Mayor of that Corporation. He has a hisitation in his speech, that will prevent his being an Orator of any eminence;--his legal knowledge I am told is not extensive, nor his education a good one. He is however a Man of good sense, plain in his manners, and sincere in his friendships. He is about 32 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 327. [85] (This plan had been concerted among the deputations or members thereof, from Con^t N. Y. N. J. Del. and perhaps M^r Martin from Mary^d who made with them a common cause though on different principles. Con^t & N. Y. were ag^{st} a departure from the principle of the Confederation, wishing rather to add a few new powers to Cong^s than to substitute, a National Gov^t. The States of N. J. & Del. were opposed to a National Gov^t because its patrons considered a proportional representation of the States as the basis of it. The eagerness displayed by the members opposed to a Nat^l Gov^t from these different motives began now to produce serious anxiety for the result of the Convention. M^r Dickenson said to M^r Madison You see the consequence of pushing things too far. Some of the members from the small States wish for two branches in the General Legislature, and are friends to a good National Government; but we would sooner submit to foreign power, than submit to be deprived of an equality of suffrage in both branches of the legislature, and thereby be thrown under the domination of the large States.)--Madison Note. "Mr. Madison moved for the report of the committee, and the question may then come on whether the convention will postpone it in order to take into consideration the system now offered. "Mr. Lansing is of opinion that the two systems are fairly contrasted. The one now offered is on the basis of amending the federal government, and the other to be reported as a national government, on propositions which exclude the propriety of amendment. Considering therefore its importance, and that justice may be done to its weighty consideration, he is for postponing it a day. "Col. Hamilton cannot say he is in sentiment with either plan--supposes both might again be considered as federal plans, and by this means they will be fairly in committee, and be contrasted so as to make a comparative estimate of the two."--Yates, _Secret Proceedings_, etc., 121, 122. The propositions from N. Jersey moved by M^r Patterson were in the words following. 1. Res^d that the articles of Confederation ought to be so revised, corrected, & enlarged, as to render the federal Constitution adequate to the exigencies of Government, & the preservation of the Union. 2. Res^d that in addition to the powers vested in the U. States in Congress, by the present existing articles of Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or merchandizes of foreign growth or manufacture, imported into any part of the U. States, by Stamps on paper, vellum or parchment, and by a postage on all letters or packages passing through the general post-office, to be applied to such federal purposes as they shall deem proper & expedient; to make rules & regulations for the collection thereof; and the same from time to time, to alter & amend in such manner as they shall think proper, to pass Acts for the regulation of trade & commerce as well with foreign Nations as with each other: provided that all punishments, fines, forfeitures & penalties to be incurred for contravening such acts rules and regulations shall be adjudged by the Common law Judiciaries of the State in which any Offence contrary to the true intent & meaning of such Acts rules & regulations shall have been committed or perpetrated, with liberty of commencing in the first instance all suits & prosecutions for that purpose in the Superior Common law Judiciary in such State, subject nevertheless, for the correction of all errors, both in law & fact in rendering Judgment, to an appeal to the Judiciary of the U. States. 3. Res^d that whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the articles of Confederation, the United States in Cong^s be authorized to make such requisitions in proportion to the whole number of white & other free citizens & inhabitants of every age Sex and condition including those bound to servitude for a term of years & three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes; that if such requisitions be not complied with, in the time specified therein, to direct the collection thereof in the non complying States & for that purpose to devise and pass acts directing & authorizing the same; provided that none of the powers hereby vested in the U. States in Cong^s shall be exercised without the consent of at least ---- States, and in that proportion if the number of Confederated States should hereafter be increased or diminished. 4. Res^d that the U. States in Cong^s be authorized to elect a federal Executive to consist of ---- persons, to continue in office for the term of ---- years, to receive punctually at stated times a fixed compensation for their services, in which no increase nor diminution shall be made so as to affect the persons composing the Executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for ---- years thereafter: to be ineligible a second time, & removeable by Cong^s on application by a majority of the Executives of the several States; that the Executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, & to direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General or in any other capacity. 5. Res^d that a federal Judiciary be established to consist of a supreme Tribunal the Judges of which to be appointed by the Executive, & to hold their offices during good behaviour, to receive punctually at stated times a fixed compensation for their services in which no increase nor diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution: that the Judiciary so established shall have authority to hear & determine in the first instance on all impeachments of federal Officers, & by way of appeal in the dernier resort in all cases touching the rights of Ambassadors, in all cases of captures from an enemy, in all cases of piracies & felonies on the high Seas, in all cases in which foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the Acts for the regulation of trade, or the collection of the federal Revenue: that none of the Judiciary shall during the time they remain in office be capable of receiving or holding any other office or appointment during their term of service, or for ---- thereafter. 6. Res^d that all Acts of the U. States in Cong^s made by virtue & in pursuance of the powers hereby & by the Articles of Confederation vested in them, and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions any thing in the respective laws of the Individual States to the Contrary notwithstanding: and that if any State, or any body of men in any State shall oppose or prevent y^e carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth y^e power of the Confederated States, or so much thereof as may be necessary to enforce and compel an Obedience to such Acts, or an observance of such Treaties. 7. Res^d that provision be made for the admission of new States into the Union. 8. Res^d that the rule for naturalization ought to be same in every State. 9. Res^d that a Citizen of one State committing an offence in another State of the Union, shall be deemed guilty of the same offence as if it had been committed by a Citizen of the State in which the offence was committed.[86] [86] This copy of M^r Patterson's propositions varies in a few clauses from that in the printed Journal furnished from the papers of M^r Brearley a colleague of M^r Patterson. A confidence is felt, notwithstanding, in its accuracy. That the copy in the Journal is not entirely correct is shewn by the ensuing speech of M^r Wilson (June 16) in which he refers to the mode of removing the Executive by impeachment & conviction as a feature in the Virg^a plan forming one of its contrasts to that of M^r Patterson, which proposed a removal on the application of a majority of the Executives of the States. In the copy printed in the Journal, the two modes are combined in the same clause; whether through inadvertence, or as a contemplated amendment, does not appear.--Madison's Note. The Journal contains: "6. Resolved, that the legislative, executive, and judiciary powers within the several states, ought to be bound, by oath, to support the articles of union," and "9. Resolved, that provision ought to be made for hearing and deciding upon all disputes arising between the United States and an individual state, respecting territory."--_Journal of the Federal Convention_, 126. Adjourned. SATURDAY JUNE 16. IN COMMITTEE OF THE WHOLE on Resolutions propos^d by M^r P. & M^r R. M^r Lansing called for the reading of the 1^{st} resolution of each plan, which he considered as involving principles directly in contrast; that of M^r Patterson says he sustains the sovereignty of the respective States, that of M^r Randolph destroys it: the latter requires a negative on all the laws of the particular States; the former, only certain general powers for the general good. The plan of M^r R. in short absorbs all power except what may be exercised in the little local matters of the States which are not objects worthy of the supreme cognizance. He grounded his preference of M^r P's plan, chiefly on two objections ag^{st} that of M^r R. 1. want of power in the Convention to discuss & propose it. 2. the improbability of its being adopted, 1. He was decidedly of opinion that the power of the Convention was restrained to amendments of a federal nature, and having for their basis the Confederacy in being. The Act of Congress The tenor of the Acts of the States, the Co[~m]issions produced by the several deputations all proved this. And this limitation of the power to an amendment of the Confederacy, marked the opinion of the States, that it was unnecessary & improper to go farther. He was sure that this was the case with his State. N. York would never have concurred in sending deputies to the Convention, if she had supposed the deliberations were to turn on a consolidation of the States, and a National Government. 2. was it probable that the States would adopt & ratify a scheme, which they had never authorized us to propose? and which so far exceeded what they regarded as sufficient? We see by their several Acts particularly in relation to the plan of revenue proposed by Cong. in 1783, not authorized by the Articles of Confederation, what were the ideas they then entertained. Can so great a change be supposed to have already taken place. To rely on any change which is hereafter to take place in the sentiments of the people would be trusting to too great an uncertainty. We know only what their present sentiments are. And it is in vain to propose what will not accord with these. The States will never feel a sufficient confidence in a general Government to give it a negative on their laws. The Scheme is itself totally novel. There is no parallel to it to be found. The Authority of Congress is familiar to the people, and an augmentation of the powers of Congress will be readily approved by them. M^r Patterson, said as he had on a former occasion given his sentiments on the plan proposed by M^r R. he would now avoiding repetition as much as possible give his reasons in favor of that proposed by himself. He preferred it because it accorded 1. with the powers of the Convention, 2 with the sentiments of the people. If the confederacy was radically wrong, let us return to our States, and obtain larger powers, not assume them ourselves. I came here not to speak my own sentiments, but the sentiments of those who sent me. Our object is not such a Governm^t as may be best in itself, but such a one as our Constituents have authorized us to prepare, and as they will approve. If we argue the matter on the supposition that no Confederacy at present exists, it can not be denied that all the States stand on the footing of equal sovereignty. All therefore must concur before any can be bound. If a proportional representation be right, why do we not vote so here? If we argue on the fact that a federal compact actually exists, and consult the articles of it we still find an equal Sovereignty to be the basis of it. He reads the 5^{th} art: of Confederation giving each State a vote--& the 13^{th} declaring that no alteration shall be made without unanimous consent. This is the nature of all treaties. What is unanimously done, must be unanimously undone. It was observed (by M^r Wilson) that the larger State gave up the point, not because it was right, but because the circumstances of the moment urged the concession. Be it so. Are they for that reason at liberty to take it back. Can the donor resume his gift without the consent of the donee. This doctrine may be convenient, but it is a doctrine that will sacrifice the lesser States. The larger States acceded readily to the confederacy. It was the small ones that came in reluctantly and slowly. N. Jersey & Maryland were the two last, the former objecting to the want of power in Congress over trade: both of them to the want of power to appropriate the vacant territory to the benefit of the whole.--If the sovereignty of the States is to be maintained, the Representatives must be drawn immediately from the States, not from the people: and we have no power to vary the idea of equal sovereignty. The only expedient that will cure the difficulty, is that of throwing the States into Hotchpot. To say that this is impracticable, will not make it so. Let it be tried, and we shall see whether the Citizens of Mass^{ts} Pen^a & V^a accede to it. It will be objected that Coercion will be impracticable. But will it be more so in one plan than the other? Its efficacy will depend on the quantum of power collected, not on its being drawn from the States, or from the individuals; and according to his plan it may be exerted on individuals as well as according that of M^r R. A distinct executive & Judiciary also were equally provided by his plan. It is urged that two branches in the Legislature are necessary. Why? for the purpose of a check. But the reason of the precaution is not applicable to this case. Within a particular State, where party heats prevail, such a check may be necessary. In such a body as Congress it is less necessary, and besides, the delegations of the different States are checks on each other. Do the people at large complain of Cong^s? No, what they wish is that Cong^s may have more power. If the power now proposed be not eno', the people hereafter will make additions to it. With proper powers Cong^s will act with more energy & wisdom than the proposed Nat^l Legislature; being fewer in number, and more secreted & refined by the mode of election. The plan of M^r R. will also be enormously expensive. Allowing Georgia & Del. two representatives each in the popular branch the aggregate number of that branch will be 180. Add to it half as many for the other branch and you have 270, coming once at least a year from the most distant as well as the most central parts of the republic. In the present deranged State of our finances can so expensive a System be seriously thought of? By enlarging the powers of Cong^s the greatest part of this expence will be saved, and all purposes will be answered. At least a trial ought to be made. M^r Wilson entered into a contrast of the principal points of the two plans so far he said as there had been time to examine the one last proposed. These points were 1. in the Virg^a plan there are 2 & in some degree 3 branches in the Legislature: in the plan from N. J. there is to be a _single_ legislature only--2. Representation of the people at large is the basis of one: the State Legislatures, the pillars of the other--3. proportional representation prevails in one;--equality of suffrage in the other--4. A single Executive Magistrate is at the head of the one:--a plurality is held out in the other.--5. in the one the majority of the people of the U. S. must prevail:--in the other a minority may prevail. 6. the Nat^l Legislature is to make laws in all cases to which the separate States are incompetent &:--in place of this Cong^s are to have additional power in a few cases only--7. A negative on the laws of the States:--in place of this coertion to be substituted--8. The Executive to be removable on impeachment & conviction;--in one plan: in the other to be removable at the instance of a majority of the Executives of the States--9. Revision of the laws provided for in one:--no such check in the other--10. inferior national tribunals in one:--none such in the other. 11. In one y^e jurisdiction of Nat^l tribunals to extend &c.--; an appellate jurisdiction only allowed in the other. 12. Here the jurisdiction is to extend to all cases affecting the Nation^l peace & harmony; _there_ a few cases only are marked out. 13. finally y^e ratification is in this to be by the people themselves:--in that by the legislative authorities according to the 13 art: of the Confederation. With regard to the _power of the Convention_, he conceived himself authorized to _conclude nothing_, but to be at liberty to _propose any thing_. In this particular he felt himself perfectly indifferent to the two plans. With _regard to the sentiments of the people_, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved, were commonly mistaken for the general voice. He could not persuade himself that the State Gov^{ts} & Sovereignties were so much the idols of the people, nor a Nat^l Gov^t so obnoxious to them, as some supposed. Why s^d a Nat^l Gov^t be unpopular? Has it less dignity? will each Citizen enjoy under it less liberty or protection? Will a Citizen of _Deleware_ be degraded by becoming a Citizen of the _United States_? Where do the people look at present for relief from the evils of which they complain? Is it from an internal reform of their Gov^{ts}? no, Sir. It is from the Nat^l Councils that relief is expected. For these reasons he did not fear, that the people would not follow us into a National Gov^t and it will be a further recommendation of M^r R'^s plan that it is to be submitted to _them_, and not to the _Legislatures_, for ratification. Proceeding now to the 1^{st} point on which he had contrasted the two plans, he observed that anxious as he was for some augmentation of the federal powers, it would be with extreme reluctance indeed that he could ever consent to give powers to Cong^s he had two reasons either of w^{ch} was sufficient, 1. Cong^s as a Legislative body does not stand on the people. 2. it is a _single_ body. 1. He would not repeat the remarks he had formerly made on the principles of Representation, he would only say that an inequality in it, has ever been a poison contaminating every branch of Gov^t. In G. Britain where this poison has had a full operation, the security of private rights is owing entirely to the purity of her tribunals of Justice, the Judges of which are neither appointed nor paid, by a venal Parliament. The political liberty of that Nation, owing to the inequality of representation is at the mercy of its rulers. He means not to insinuate that there is any parallel between the situation of that Country & ours at present. But it is a lesson we ought not to disregard, that the smallest bodies in G. B. are notoriously the most corrupt. Every other source of influence must also be stronger in small than large bodies of men. When Lord Chesterfield had told us that one of the Dutch provinces had been seduced into the views of France, he need not have added, that it was not Holland, but one of the _smallest_ of them. There are facts among ourselves which are known to all. Passing over others, he will only remark that the _Impost_, so anxiously wished for by the public was defeated not by any of the _larger_ States in the Union. 2. _Congress is a single Legislature._ Despotism comes on Mankind in different Shapes, sometimes in an Executive, sometimes in a Military, one. Is there no danger of a Legislative despotism? Theory & practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single House there is no check, but the inadequate one, of the virtue & good sense of those who compose it. On another great point, the contrast was equally favorable to the plan reported by the Committee of the whole. It vested the Executive powers in a single Magistrate. The plan of N. Jersey, vested them in a plurality. In order to controul the Legislative authority, you must divide it. In order to controul the Executive you must unite it. One man will be more responsible than three. Three will contend among themselves till one becomes the master of his colleagues. In the triumvirates of Rome first Cæsar, then Augustus, are witnesses of this truth. The Kings of Sparta, & the Consuls of Rome prove also the factious consequences of dividing the Executive Magistracy. Having already taken up so much time he w^d not he s^d, proceed to any of the other points. Those on which he had dwelt, are sufficient of themselves; and on the decision of them, the fate of the others will depend. M^r Pinkney,[87] the whole comes to this, as he conceived. Give N. Jersey an equal vote, and she will dismiss her scruples, and concur in the Nat^l system. He thought the Convention authorized to go any length in recommending; which they found necessary to remedy the evils which produced this Convention. [87] Yates states it was C. C. Pinckney who said this.--_Secret Proceedings_, etc., 123. M^r Elseworth proposed as a more distinctive form of collecting the mind of the Committee on the subject, "that the Legislative power of the U.S. should remain in Cong^s" This was not seconded, though it seemed better calculated for the purpose than the 1^{st} proposition of M^r Patterson in place of which Mr. E. wished to substitute it. M^r Randolph, was not scrupulous on the point of power. When the Salvation of the Republic was at stake, it would be treason to our trust, not to propose what we found necessary. He painted in strong colours, the imbecility of the existing Confederacy, & the danger of delaying a substantial reform. In answer to the objection drawn from the sense of our Constituents as denoted by their acts relating to the Convention and the objects of their deliberation, he observed that as each State acted separately in the case, it would have been indecent for it to have charged the existing Constitution with all the vices which it might have perceived in it. The first State that set on foot this experiment would not have been justified in going so far, ignorant as it was of the opinion of others, and sensible as it must have been of the uncertainty of a successful issue to the experiment. There are certainly reasons of a peculiar nature where the ordinary cautions must be dispensed with; and this is certainly one of them. He w^d not as far as depended on him leave any thing that seemed necessary, undone. The present moment is favorable, and is probably the last that will offer. The true question is whether we shall adhere to the federal plan, or introduce the national plan. The insufficiency of the former has been fully displayed by the trial already made. There are but two modes, by which the end of a Gen^l Gov^t can be attained: the 1^{st} is by coercion as proposed by M^r P's plan 2. by real legislation as prop^d by the other plan. Coercion he pronounced to be _impracticable_, _expensive_, _cruel to individuals_. It tended also to habituate the instruments of it to shed the blood & riot in the Spoils of their fellow Citizens, and consequently trained them up for the service of Ambition. We must resort therefore to a National _Legislation over individuals_, for which Cong^s are unfit. To vest such power in them, would be blending the Legislative with the Executive, contrary to the rec^d maxim on this subject: If the Union of these powers heretofore in Cong^s has been safe, it has been owing to the general impotency of that body. Cong^s are moreover not elected by the people, but by the Legislatures who retain even a power of recall. They have therefore no will of their own, they are a mere diplomatic body, and are always obsequious to the views of the States, who are always encroaching on the authority of the U. States. A provision for harmony among the States, as in trade, naturalization &.--for crushing rebellion whenever it may rear its crest--and for certain other general benefits, must be made. The powers for these purposes can never be given to a body, inadequate as Congress are in point of representation, elected in the mode in which they are, and possessing no more confidence than they do: for notwithstanding what has been said to the contrary, his own experience satisfied him that a rooted distrust of Congress pretty generally prevailed. A Nat^l Gov^t alone, properly constituted, will answer the purpose; and he begged it to be considered that the present is the last moment for establing one. After this select experiment, the people will yield to despair. The Committee rose & the House adjourned. MONDAY JUNE 18. IN COMMITTEE OF THE WHOLE on the propositions of M^r Patterson & M^r Randolph. On motion of M^r Dickinson to postpone the 1^{st} Resolution in M^r Patterson's plan, in order to take up the following viz--"that the Articles of Confederation ought to be revised and amended, so as to render the Government of the U. S. adequate to the exigencies, the preservation and the prosperity of the Union" the postponement was agreed to by 10 States, Pen: divided. Mr. Hamilton,[88] had been hitherto silent on the business before the Convention, partly from respect to others whose superior abilities age & experience rendered him unwilling to bring forward ideas dissimilar to theirs, and partly from his delicate situation with respect to his own State, to whose sentiments as expressed by his Colleages, he could by no means accede. This crisis however which now marked our affairs, was too serious to permit any scruples whatever to prevail over the duty imposed on every man to contribute his efforts for the public safety & happiness. He was obliged therefore to declare himself unfriendly to both plans. He was particularly opposed to that from N. Jersey, being fully convinced, that no amendment of the Confederation, leaving the States in possession of their Sovereignty could possibly answer the purpose. On the other hand he confessed he was much discouraged by the amazing extent of Country in expecting the desired blessings from any general sovereignty that could be substituted.--As to the powers of the Convention, he thought the doubts started on that subject had arisen from distinctions & reasonings too subtle. A _federal_ Gov^t he conceived to mean an association of independent Communities into one. Different Confederacies have different powers, and exercise them in different ways. In some instances the powers are exercised over collective bodies; in others over individuals, as in the German Diet--& among ourselves in cases of piracy. Great latitude therefore must be given to the signification of the term. The plan last proposed departs itself from the _federal_ idea, as understood by some, since it is to operate eventually on individuals. He agreed moreover with the Honble gentleman from V^a (M^r R.) that we owed it to our Country, to do on this emergency whatever we should deem essential to its happiness. The States sent us here to provide for the exigencies of the Union. To rely on & propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the means to the end. It may be said that the _States_ cannot _ratify_ a plan not within the purview of the article of the Confederation providing for alterations & amendments. But may not the States themselves in which no constitutional authority equal to this purpose exists in the Legislatures, have had in view a reference to the people at large. In the Senate of N. York, a proviso was moved, that no act of the Convention should be binding untill it should be referred to the people & ratified; and the motion was lost by a single voice only, the reason assigned ag^{st} it being, that it might possibly be found an inconvenient shackle. [88] Hamilton happened to call upon Madison while the latter was putting the last touches to this speech and "acknowledged its fidelity, without suggesting more than a few verbal alterations which were made."--(Cf. _Madison's Writings_, vol. ii.). A brief of the speech from the Hamilton Papers is given in Lodge's _Works of Hamilton_, i., 353, where (i., 375) Yates's report also is quoted. [Illustration: HAMILTON'S PRINCIPAL SPEECH. (Reduced.)] The great question is what provision shall we make for the happiness of our Country? He would first make a comparative examination of the two plans--prove that there were essential defects in both--and point out such changes as might render a _national one_, efficacious.--The great & essential principles necessary for the support of Government are 1. an active & constant interest in supporting it. This principle does not exist in the States in favor of the federal Gov^t. They have evidently in a high degree, the esprit de corps. They constantly pursue internal interests adverse to those of the whole. They have their particular debts--their particular plans of finance &c. All these when opposed to, invariably prevail over the requisitions & plans of Congress. 2. The love of power. Men love power. The same remarks are applicable to this principle. The States have constantly shewn a disposition rather to regain the powers delegated by them than to part with more, or to give effect to what they had parted with. The ambition of their demagogues is known to hate the controul of the Gen^l Government. It may be remarked too that the Citizens have not that anxiety to prevent a dissolution of the Gen^l Gov^t as of the particular Gov^{ts}. A dissolution of the latter would be fatal; of the former would still leave the purposes of Gov^t attainable to a considerable degree. Consider what such a State as Virg^a will be in a few years, a few compared with the life of nations. How strongly will it feel its importance and self-sufficiency? 3. An habitual attachment of the people. The whole force of this tie is on the side of the State Gov^t. Its sovereignty is immediately before the eyes of the people: its protection is immediately enjoyed by them. From its hand distributive justice, and all those acts which familiarize & endear a Gov^t to a people, are dispensed to them. 4. _Force_ by which may be understood a _coercion of laws_ or _coercion of arms_. Cong^s have not the former except in few cases. In particular States, this Coercion is nearly sufficient; tho' he held it in most cases, not entirely so. A certain portion of military force is absolutely necessary in large communities. Mass^{ts} is now feeling this necessity & making provision for it. But how can this force be exerted on the States collectively. It is impossible. It amounts to a war between the parties. Foreign powers also will not be idle spectators. They will interpose, the confusion will increase, and a dissolution of the Union will ensue. 5. _Influence._ he did not mean corruption, but a dispensation of those regular honors & emoluments, which produce an attachment to the Gov^t. Almost all the weight of these is on the side of the States; and must continue so as long as the States continue to exist. All the passions then we see, of avarice, ambition, interest, which govern most individuals, and all public bodies, fall into the current of the States, and do not flow into the stream of the Gen^l Gov^t. The former therefore will generally be an overmatch for the Gen^l Gov^t and render any confederacy, in its very nature precarious. Theory is in this case fully confirmed by experience. The Amphyctionic Council had it would seem ample powers for general purposes. It had in particular the power of fining and using force ag^{st} delinquent members. What was the consequence. Their decrees were mere signals of war. The Phocian war is a striking example of it. Philip at length taking advantage of their disunion, and insinuating himself into their councils, made himself master of their fortunes. The German Confederacy affords another lesson. The Authority of Charlemagne seemed to be as great as could be necessary. The great feudal chiefs however, exercising their local sovereignties, soon felt the spirit & found the means of, encroachments, which reduced the imperial authority to a nominal sovereignty. The Diet has succeeded, which tho' aided by a Prince at its head, of great authority independently of his imperial attributes, is a striking illustration of the weakness of Confederated Governments. Other examples instruct us in the same truth. The Swiss cantons have scarce any union at all, and have been more than once at war with one another.--How then are all these evils to be avoided? only by such a compleat sovereignty in the General Goverm^t as will turn all the strong principles & passions abovementioned on its side. Does the scheme of N. Jersey produce this effect? does it afford any substantial remedy whatever? On the contrary it labors under great defects, and the defect of some of its provisions will destroy the efficacy of others. It gives a direct revenue to Cong^s but this will not be sufficient. The balance can only be supplied by requisitions: which experience proves cannot be relied on. If States are to deliberate on the mode, they will also deliberate on the object of the supplies, and will grant or not grant as they approve or disapprove of it. The delinquency of one will invite and countenance it in others. Quotas too must in the nature of things be so unequal as to produce the same evil. To what standard will you resort? Land is a fallacious one. Compare Holland with Russia; France or Eng^d with other countries of Europe, Pen^a with N. Carol^a will the relative pecuniary abilities in those instances, correspond with the relative value of land. Take numbers of inhabitants for the rule and make like comparison of different countries, and you will find it to be equally unjust. The different degrees of industry and improvement in different Countries render the first object a precarious measure of wealth. Much depends too on _situation_. Con^t N. Jersey & N. Carolina, not being commercial States & contributing to the wealth of the Commercial ones, can never bear quotas assessed by the ordinary rules of proportion. They will & must fail in their duty, their example will be followed, and the union itself be dissolved. Whence then is the national revenue to be drawn? from Commerce; even from exports which notwithstanding the co[~m]on opinion are fit objects of moderate taxation, from excise, &c &c. These tho' not equal, are less unequal than quotas. Another destructive ingredient in the plan, is that equality of suffrage which is so much desired by the small States. It is not in human nature that V^a & the large States should consent to it, or if they did that they sh^d long abide by it. It shocks too much all ideas of Justice, and every human feeling. Bad principles in a Gov^t tho slow are sure in their operation, and will gradually destroy it. A doubt has been raised whether Cong^s at present have a right to keep Ships or troops in time of peace. He leans to the negative. Mr. P'^s plan provides no remedy.--If the powers proposed were adequate, the organization of Cong^s is such that they could never be properly & effectually exercised. The members of Cong^s being chosen by the States & subject to recall, represent all the local prejudices. Should the powers be found effectual, they will from time to time be heaped on them, till a tyrannic sway shall be established. The general power whatever be its form if it preserves itself, must swallow up the State powers. Otherwise it will be swallowed up by them. It is ag^{st} all the principles of a good Government to vest the requisite powers in such a body as Cong^s. Two Sovereignties can not co-exist within the same limits. Giving powers to Cong^s must eventuate in a bad Gov^t or in no Gov^t. The plan of N. Jersey therefore will not do. What then is to be done? Here he was embarrassed. The extent of the Country to be governed, discouraged him. The expence of a general Gov^t was also formidable; unless there were such a diminution of expence on the side of the State Gov^{ts} as the case would admit. If they were extinguished, he was persuaded that great oeconomy might be obtained by substituting a general Gov^t. He did not mean however to shock the public opinion by proposing such a measure. On the other hand he saw no _other_ necessity for declining it. They are not necessary for any of the great purposes of commerce, revenue, or agriculture. Subordinate authorities he was aware would be necessary. There must be district tribunals; corporations for local purposes. But cui bono, the vast & expensive apparatus now appertaining to the States. The only difficulty of a serious nature which occurred to him, was that of drawing representatives from the extremes to the centre of the Community. What inducements can be offered that will suffice? The moderate wages for the 1^{st} branch would only be a bait to little demagogues. Three dollars or thereabouts he supposed would be the utmost. The Senate he feared from a similar cause, would be filled by certain undertakers who wish for particular offices under the Gov^t. This view of the subject almost led him to despair that a Republican Gov^t could be established over so great an extent. He was sensible at the same time that it would be unwise to propose one of any other form. In his private opinion he had no scruple in declaring, supported as he was by the opinion of so many of the wise & good, that the British Gov^t was the best in the world: and that he doubted much whether any thing short of it would do in America. He hoped Gentlemen of different opinions would bear with him in this, and begged them to recollect the change of opinion on this subject which had taken place and was still going on. It was once thought that the power of Cong^s was amply sufficient to secure the end of their institution. The error was now seen by every one. The members most tenacious of republicanism, he observed, were as loud as any in declaiming ag^{st} the vices of democracy. This progress of the public mind led him to anticipate the time, when others as well as himself would join in the praise bestowed by M^r Neckar on the British Constitution, namely, that it is the only Gov^t in the world "which unites public strength with individual security."--In every Co[~m]unity where industry is encouraged, there will be a division of it into the few & the many. Hence separate interests will arise. There will be debtors & Creditors &c. Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the many. Both therefore ought to have the power, that each may defend itself ag^{st} the other. To the want of this check we owe our paper money, instalment laws &c. To the proper adjustment of it the British owe the excellence of their Constitution. Their house of Lords is a most noble institution. Having nothing to hope for by a change, and a sufficient interest by means of their property, in being faithful to the national interest, they form a permanent barrier ag^{st} every pernicious innovation, whether attempted on the part of the Crown or of the Commons. No temporary Senate will have firmness eno' to answer the purpose. The Senate (of Maryland) which seems to be so much appealed to, has not yet been sufficiently tried. Had the people been unanimous & eager in the late appeal to them on the subject of a paper emission they would have yielded to the torrent. Their acquiescing in such an appeal is a proof of it.--Gentlemen differ in their opinions concerning the necessary checks, from the different estimates they form of the human passions. They suppose seven years a sufficient period to give the senate an adequate firmness, from not duly considering the amazing violence & turbulence of the democratic spirit. When a great object of Gov^t is pursued, which seizes the popular passions, they spread like wild fire, and become irresistable. He appealed to the gentlemen from the N. England States whether experience had not there verified the remark.--As to the Executive, it seemed to be admitted that no good one could be established on Republican Principles. Was not this giving up the merits of the question; for can there be a good Gov^t without a good Executive. The English Model was the only good one on this subject. The Hereditary interest of the King was so interwoven with that of the Nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad--and at the same time was both sufficiently independent and sufficiently controuled, to answer the purpose of the institution at home, one of the weak sides of Republics was their being liable to foreign influence & corruption. Men of little character, acquiring great power become easily the tools of intermeddling Neibours. Sweden was a striking instance. The French & English had each their parties during the late Revolution which was effected by the predominant influence of the former.--What is the inference from all these observations? That we ought to go as far in order to attain stability and permanency, as republican principles will admit. Let one branch of the Legislature hold their places for life or at least during good behaviour. Let the Executive also be for life. He appealed to the feelings of the members present whether a term of seven years, would induce the sacrifices of private affairs which an acceptance of public trust would require, so as to ensure the services of the best Citizens. On this plan we should have in the Senate a permanent will, a weighty interest, which would answer essential purposes. But is this a Republican Gov^t, it will be asked? Yes if all the Magistrates are appointed, and vacancies are filled, by the people, or a process of election originating with the people. He was sensible that an Executive constituted as he proposed would have in fact but little of the power and independence that might be necessary. On the other plan of appointing him for 7 years, he thought the Executive ought to have but little power. He would be ambitious, with the means of making creatures, and as the object of his ambition w^d be to _prolong_ his power, it is probable that in case of a war, he would avail himself of the emergence, to evade or refuse a degradation from his place. An Executive for life has not this motive for forgetting his fidelity, and will therefore be a safer depository of power. It will be objected probably, that such an Executive will be an _elective Monarch_, and will give birth to the tumults which characterize that form of Gov^t. He w^d reply that _Monarch_ is an indefinite term. It marks not either the degree or duration of power. If this Executive Magistrate w^d be a monarch for life--the other prop^d by the Report from the Co[~m]ittee of the whole, w^d be a monarch for seven years. The circumstance of being elective was also applicable to both. It had been observed by judicious writers that elective monarchies w^d be the best if they could be guarded ag^{st} the _tumults_ excited by the ambition and intrigues of competitors. He was not sure that tumults were an inseparable evil. He rather thought this character of Elective Monarchies had been taken rather from particular cases than from general principles. The election of Roman Emperors was made by the _Army_. In _Poland_ the election is made by great rival _princes_ with independent power, and ample means, of raising commotions. In the German Empire, The appointment is made by the Electors & Princes, who have equal motives & means, for exciting cabals & parties. Might not such a mode of election be devised among ourselves as will defend the community ag^{st} these effects in any dangerous degree? Having made these observations he would read to the Committee a sketch of a plan which he sh^d prefer to either of those under consideration. He was aware that it went beyond the ideas of most members. But will such a plan be adopted out of doors? In return he would ask will the people adopt the other plan? At present they will adopt neither. But he sees the Union dissolving or already dissolved--he sees evils operating in the States which must soon cure the people of their fondness for democracies--he sees that a great progress has been already made & is still going on in the public mind. He thinks therefore that the people will in time be unshackled from their prejudices; and whenever that happens, they will themselves not be satisfied at stopping where the plan of M^r R. w^d place them, but be ready to go as far at least as he proposes. He did not mean to offer the paper he had sketched as a proposition to the Committee. It was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of M^r R. in the proper stages of its future discussion. He read his sketch in the words following; to wit I. The supreme Legislative power of the United States of America to be vested in two different bodies of men; the one to be called the Assembly, the other the Senate who together shall form the Legislature of the United States with power to pass all laws whatsoever subject to the Negative hereafter mentioned. II. The Assembly to consist of persons elected by the people to serve for three years. III. The Senate to consist of persons elected to serve during good behaviour; their election to be made by electors chosen for that purpose by the people: in order to this the States to be divided into election districts. On the death, removal or resignation of any Senator his place to be filled out of the district from which he came. IV. The supreme Executive authority of the United States to be vested in a Governour to be elected to serve during good behaviour--the election to be made by Electors chosen by the people in the Election Districts aforesaid--The authorities & functions of the Executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (Ambassadors to foreign Nations included) subject to the approbation or rejection of the Senate; to have the power of pardoning all offences except Treason; which he shall not pardon without the approbation of the Senate. V. On the death resignation or removal of the Governour his authorities to be exercised by the President of the Senate till a Successor be appointed. VI. The Senate to have the sole power of declaring war, the power of advising and approving all Treaties, the power of approving or rejecting all appointments of officers except the heads or chiefs of the departments of Finance War and foreign affairs. VII. The supreme Judicial authority to be vested in ---- Judges to hold their offices during good behaviour with adequate and permanent salaries. This Court to have original jurisdiction in all causes of capture, and an appellative jurisdiction in all causes in which the revenues of the General Government or the Citizens of foreign Nations are concerned. VIII. The Legislature of the United States to have power to institute Courts in each State for the determination of all matters of general concern. IX. The Governour Senators and all officers of the United States to be liable to impeachment for mal- and corrupt conduct; and upon conviction to be removed from office, & disqualified for holding any place of trust or profit--All impeachments to be tried by a Court to consist of the Chief ---- or Judge of the Superior Court of Law of each State, provided such Judge shall hold his place during good behavior, and have a permanent salary. X. All laws of the particular States contrary to the Constitution or laws of the United States to be utterly void; and the better to prevent such laws being passed, the Governour or president of each State shall be appointed by the General Government and shall have a Negative upon the laws about to be passed in the State of which he is the Governour or President. XI. No State to have any forces land or Naval; and the militia of all the States to be under the sole and exclusive direction of the United States, the officers of which to be appointed and commissioned by them. On these several articles he entered into explanatory observations corresponding with the principles of his introductory reasoning.[89] [89] COPY OF A PAPER COMMUNICATED TO J. M. BY COL. HAMILTON, ABOUT THE CLOSE OF THE CONVENTION IN PHILAD^A, 1787, WHICH HE SAID DELINEATED THE CONSTITUTION WHICH HE WOULD HAVE WISHED TO BE PROPOSED BY THE CONVENTION. HE HAD STATED THE PRINCIPLES OF IT IN THE COURSE OF THE DELIBERATIONS. The people of the United States of America do ordain & establish this Constitution for the government of themselves and their posterity. ARTICLE I § 1. The Legislative power shall be vested in two distinct bodies of men, one to be called the Assembly, the other the Senate, subject to the negative hereinafter mentioned. § 2. The Executive power, with the qualifications hereinafter specified, shall be vested in a President of the United States. § 3. The Supreme Judicial authority, except in the cases otherwise provided for in this Constitution, shall be vested in a Court to be called the SUPREME COURT, to consist of not less than six nor more than twelve Judges. ARTICLE II § 1. The Assembly shall consist of persons to be called representatives, who shall be chosen, except in the first instance, by the free male citizens & inhabitants of the several States comprehended in the Union, all of whom of the age of twenty one years & upwards shall be entitled to an equal vote. § 2. But the first Assembly shall be chosen in the manner prescribed in the last article and shall consist of one hundred members of whom N. Hampshire shall have five, Massachusetts thirteen, Rhode Island two, Connecticut seven, N. York nine, N. Jersey six, Pennsylvania twelve, Delaware two, Maryland eight, Virginia sixteen, N. Carolina eight, S. Carolina eight, Georgia four. § 3. The Legislature shall provide for the future elections of Representatives, apportioning them in each State, from time to time, as nearly as may be to the number of persons described in the 4§ of the VII article, so as that the whole number of Representatives shall never be less than one hundred, nor more than ---- hundred. There shall be a Census taken for this purpose within three years after the first meeting of the Legislature, and within every successive period of ten years. The term for which Representatives shall be elected shall be determined by the Legislature but shall not exceed three years. There shall be a general election at least once in three years; and the time of service of all the members in each Assembly shall begin, (except in filling vacancies) on the same day, and shall always end on the same day. § 4. Forty members shall make a House sufficient to proceed to business; but their number may be increased by the Legislature, yet so as never to exceed a majority of the whole number of Representatives. § 5. The Assembly shall choose its President and other officers, shall judge of the qualifications & elections of its own members, punish them for improper conduct in their capacity of Representatives not extending to life or limb; and shall exclusively possess the power of impeachment except in the case of the President of the United States; but no impeachment of a member of the Senate shall be by less than two thirds of the Representatives present. § 6. Representatives may vote by proxy; but no Representative present shall be proxy for more than one who is absent.[A] [A] Quere, ? (to provide for distant States).--Note in Madison's hand. § 7. Bills for raising revenue, and bills for appropriating monies for the support of fleets and armies, and for paying the salaries of the officers of Government, shall originate in the Assembly; but may be altered and amended by the Senate. § 8. The acceptance of an office under the United States by a Representative shall vacate his seat in the Assembly. ARTICLE III § 1. The Senate shall consist of persons to be chosen, except in the first instance, by Electors elected for that purpose by the Citizens and inhabitants of the several States comprehended in the Union who shall have in their own right, or in the right of their wifes, an Estate in land for not less than life, or a term of years, whereof at the time of giving their votes there shall be at least fourteen years unexpired. § 2. But the first Senate shall be chosen in the manner prescribed in the last Article and shall consist of forty members to be called Senators, of whom N. Hampshire shall have ---- Mass^{ts} ---- R. Island ---- Connecticut ---- N. York ---- N. Jersey ---- Pen^a ---- Delaware ---- Mary^d ---- Virg^a ---- N. Carol. ---- S. Carol. ---- Geo. ----. § 3. The Legislature shall provide for the future elections of Senators, for which purpose the States respectively, which have more than one Senator, shall be divided into convenient districts to which the Senators shall be apportioned. A State having but one Senator shall be itself a district. On the death, resignation or removal from office of a Senator his place shall be supplied by a new election in the district from which he came. Upon each election there shall be not less than six nor more than twelve electors chosen in a district. § 4. The number of Senators shall never be less than forty, nor shall any State, if the same shall not hereafter be divided, ever have less than the number allotted to it in the second section of this article; but the Legislature may increase the whole number of Senators, in the same proportion to the whole number of Representatives as forty is to one hundred; and such increase beyond the present number, shall be apportioned to the respective States in a ratio to the respective numbers of their representatives. § 5. If States shall be divided, or if a new arrangement of the boundaries of two or more States shall take place, the Legislature shall apportion the number of Senators (in elections succeeding such division or new arrangement) to which the constituent parts were entitled according to the change of situation, having regard to the number of persons described in the 4 §. of the VII article. § 6. The Senators shall hold their places during good behaviour, removable only by conviction on impeachment for some crime or misdemeanor. They shall continue to exercise their offices when impeached untill a conviction shall take place. Sixteen Senators attending in person shall be sufficient to make a House to transact business; but the Legislature may increase this number, yet so as never to exceed a majority of the whole number of Senators. The Senators may vote by proxy, but no Senator who is present shall be proxy for more than two who are absent. § 7. The Senate shall choose its President and other officers; shall judge of the qualifications and elections of its members, and shall punish them for improper conduct in their capacity of Senators; but such punishment shall not extend to life or limb, nor to expulsion. In the absence of their President they may choose a temporary President. The President shall only have a casting vote when the House is equally divided. § 8. The Senate shall exclusively possess the power of declaring war. No treaty shall be made without their advice and consent; which shall also be necessary to the appointment of all officers, except such for which a different provision is made in this Constitution. ARTICLE IV § 1. The President of the United States of America, (except in the first instance) shall be elected in the manner following--The Judges of the Supreme Court shall within sixty days after a vacancy shall happen, cause public notice to be given in each State, of such vacancy, appointing therein three several days for the several purposes following, to wit, a day for commencing the election of electors for the purposes hereinafter specified, to be called the first electors, which day shall not be less than forty, nor more than sixty days, after the day of the publication of the notice in each State--another day for the meeting of the electors not less [than] forty nor more than ninety days from the day for commencing their election--another day for the meeting of electors to be chosen by the first electors, for the purpose hereinafter specified, and to be called the second Electors, which day shall be not less than forty nor more than sixty days after the day for the meeting of the first electors. § 2. After notice of a vacancy shall have been given there shall be chosen in each State a number of persons, as the first electors in the preceding section mentioned, equal to the whole number of the Representatives and Senators of such State in the Legislature of the United States; which electors shall be chosen by the Citizens of such State having an estate of inheritance or for three lives in land, or a clear personal estate of the value of one thousand Spanish milled dollars of the present standard. § 3. These first electors shall meet in their respective States at the time appointed, at one place; and shall proceed to vote by ballot for a President, who shall not be one of their own number, unless the Legislature upon experiment should hereafter direct otherwise. They shall cause two lists to be made of the name or names of the person or persons voted for, which they or the major part of them shall sign & certify. They shall then proceed each to nominate openly in the presence of the others, two persons as for second electors, and out of the persons who shall have the four highest numbers of nominations, they shall afterwards by ballot by plurality of votes choose two who shall be the second electors, to each of whom shall be delivered one of the lists before mentioned. These second electors shall not be any of the persons voted for as President. A copy of the same list signed and certified in like manner shall be transmitted by the first electors to the Seat of the Government of the United States, under a sealed cover directed to the President of the Assembly, which after the meeting of the Second electors shall be opened for the inspection of the two Houses of the Legislature. § 4. The second electors shall meet precisely on the day appointed and not on another day, at one place. The Chief Justice of the Supreme Court, or if there be no Chief Justice, the Judge senior in office in such Court, or if there be no one Judge senior in office, some other Judge of that Court, by the choice of the rest of the Judges or of a majority of them, shall attend at the same place and shall preside at the meeting, but shall have no vote. Two thirds of the whole number of the Electors shall constitute a sufficient meeting for the execution of their trust. At this meeting the lists delivered to the respective electors shall be produced and inspected, and if there be any person who has a majority of the whole number of votes given by the first electors, he shall be the President of the United States; but if there be no such person, the second electors so met shall proceed to vote, by ballot for one of the persons named in the lists who shall have the three highest numbers of the votes of the first electors; and if upon the first or any succeeding ballot on the day of their meeting, either of those persons shall have a number of votes equal to a majority of the whole number of second electors chosen, he shall be the President. But if no such choice be made on the day appointed for the meeting either by reason of the non-attendance of the second electors, or their not agreeing, or any other matter, the person having the greatest number of votes of the first electors shall be the President. § 5. If it should happen that the Chief Justice or some other Judge of the Supreme Court should not attend in due time, the second electors shall proceed to the execution of their trust without him. § 6. If the Judges should neglect to cause the notice required by the first section of this article to be given within the time therein limited, they may nevertheless cause it to be afterwards given; but their neglect if wilful, is hereby declared to be an offence for which they may be impeached, and if convicted they shall be punished as in other cases of conviction on impeachment. § 7. The Legislature shall by permanent laws provide such further regulations as may be necessary for the more orderly election of the President; not contravening the provisions herein contained. § 8. The President before he shall enter upon the execution of his office shall take an oath or affirmation, faithfully to execute the same, and to the utmost of his Judgment & power to protect the rights of the people, and preserve the Constitution inviolate. This oath or affirmation shall be administered by the President of the Senate for the time being in the presence of both Houses of the Legislature. § 9. The Senate and the Assembly shall always convene in Session on the day appointed for the meeting of the second electors and shall continue sitting till the President take the oath or affirmation of office. He shall hold his place during good behavior, removeable only by conviction upon impeachment for some crime or misdemeanor. § 10. The President at the beginning of every meeting of the Legislature as soon as they shall be ready to proceed to business, shall convene them together at the place where the Senate shall sit, and shall communicate to them all such matters as may be necessary for their information, or as may require their consideration. He may by message during the Session communicate all other matters which may appear to him proper. He may, whenever in his opinion the public business shall require it, convene the Senate and Assembly, or either of them, and may prorogue them for a time not exceeding forty days at one prorogation; and if they should disagree about their adjournment, he may adjourn them to such time as he shall think proper. He shall have a right to negative all bills, Resolutions or acts of the two Houses of the Legislature about to be passed into laws. He shall take care that the laws be faithfully executed. He shall be the commander in chief of the army and Navy of the United States and of the Militia within the several States, and shall have the direction of war when commenced, but he shall not take the actual command in the field of an army without the consent of the Senate and Assembly. All treaties, conventions and agreements with foreign nations shall be made by him, by and with the advice and consent of the Senate. He shall have the appointment of the Principal or Chief officer of each of the departments of war, naval Affairs, Finance and Foreign Affairs; and shall have the nomination; and by and with the consent of the Senate, the appointment of all other officers to be appointed under the authority of the United States, except such for whom different provision is made by this Constitution; and provided that this shall not be construed to prevent the Legislature, from appointing by name, in their laws, persons to special and particular trusts created in such laws; nor shall be construed to prevent principals in offices merely ministerial, from constituting deputies.--In the recess of the Senate he may fill vacancies in offices by appointments to continue in force until the end of the next Session of the Senate, and he shall commission all officers. He shall have power to pardon all offences except treason, for which he may grant reprieves, untill the opinion of the Senate & Assembly can be had, and with their concurrence may pardon the same. § 11. He shall receive a fixed compensation for his services to be paid to him at stated times, and not to be increased nor diminished during his continuance in office. § 12. If he depart out of the United States without the Consent of the Senate and Assembly, he shall thereby abdicate his office. § 13. He may be impeached for any crime or misdemeanor by the two Houses of the Legislature, two thirds of each House concurring, and if convicted shall be removed from office. He may be afterwards tried & punished in the ordinary course of law. His impeachment shall operate as a suspension from office until the determination thereof. § 14. The President of the Senate shall be vice President of the United States. On the death, resignation, impeachment, removal from office, or absence from the United States, of the President thereof, the Vice President shall exercise all the powers by this Constitution vested in the President, until another shall be appointed, or untill he shall return within the United States, if his absence was with the consent of the Senate and Assembly. ARTICLE V § 1. There shall be a Chief Justice of the Supreme Court, who together with the other Judges thereof, shall hold the office during good behaviour, removable only by conviction on impeachment for some crime or misdemeanor. Each Judge shall have a competent salary to be paid to him at stated times, and not to be diminished during his continuance in office. The Supreme Court shall have original jurisdiction in all causes in which the United States shall be a party, in all controversies between the United States, and a particular State, or between two or more States, except such as relate to a claim of territory between the United States, and one or more States, which shall be determined in the mode prescribed in the VI article; in all cases affecting foreign Ministers, Consuls and Agents; and an appellate jurisdiction both as to law and fact in all cases which shall concern the Citizens of foreign nations, in all questions between the Citizens of different States, and in all others in which the fundamental rights of this Constitution are involved, subject to such exceptions as are herein contained and to such regulations as the Legislature shall provide. The Judges of all Courts which may be constituted by the Legislature shall also hold their places during good behaviour, removeable only by conviction on impeachment for some crime or misdemeanor, and shall have competent salaries to be paid at stated times and not to be diminished during their continuance in office; but nothing herein contained shall be construed to prevent the Legislature from abolishing such Courts themselves. All crimes, except upon impeachment, shall be tried by a Jury of twelve men; and if they shall have been committed within any State, shall be tried within such State; and all civil causes arising under this constitution of the like kind with those which have been heretofore triable by Jury in the respective States, shall in like manner be tried by jury; unless in special cases the Legislature shall think proper to make different provision, to which provision the concurrence of two thirds of both Houses shall be necessary. § 2. Impeachments of the President and Vice President of the U. States, members of the Senate, the Governours and Presidents of the several States, the Principal or Chief Officers of the Departments enumerated in the 10 §. of the 4^{th} Article, Ambassadors and other like Public Ministers, the Judges of the Supreme Court, Generals, and Admirals of the Navy shall be tried by a Court to consist of the Judges of the Supreme Court, and the Chief Justice or first or Senior Judge of the superior Court of law in each State, of whom twelve shall constitute a Court. A majority of the Judges present may convict. All other persons shall be tried on impeachment by a court to consist of the Judges of the Supreme Court and six Senators drawn by lot, a majority of whom may convict. Impeachments shall clearly specify the particular offence for which the party accused is to be tried, and judgment on conviction upon the trial thereof shall be either removal from office singly, or removal from office and disqualification for holding any future office or place of trust; but no Judgment on impeachment shall prevent prosecution and punishment in the ordinary course of law; provided that no Judge concerned in such conviction shall sit as Judge on the second trial. The Legislature may remove the disabilities incurred by conviction on impeachment. ARTICLE VI Controversies about the right of territory between the United States and particular States shall be determined by a Court to be constituted in manner following. The State or States claiming in opposition to the United States as parties shall nominate a number of persons, equal to double the number of the Judges of the Supreme Court for the time being, of whom none shall be citizens by birth of the States which are parties, nor inhabitants thereof when nominated, and of whom not more than two shall have their actual residence in one State. Out of the persons so nominated the Senate shall elect one half, who together with the Judges of the Supreme Court, shall form the Court. Two thirds of the whole number may hear and determine the controversy, by plurality of voices. The States concerned may at their option claim a decision by the Supreme Court only. All of the members of the Court hereby instituted shall, prior to the hearing of the Cause take an oath impartially and according to the best of their judgments and consciences, to hear and determine the controversy. ARTICLE VII § 1. The Legislature of the United States shall have power to pass all laws which they shall judge necessary to the common defence and general welfare of the Union: But no Bill, Resolution, or act of the Senate and assembly shall have the force of a law until it shall have received the assent of the President, or of the vice-President when exercising the powers of the President; and if such assent shall not have been given within ten days, after such bill, resolution or other act shall have been presented to him for that purpose, the same shall not be a law. No bill, resolution or other act not assented to shall be revived in the same Session of the Legislature. The mode of signifying such assent, shall be by signing the bill act of [r] resolution, and returning it so signed to either House of the Legislature. § 2. The enacting stile of all laws shall be "Be it enacted by the people of the United States of America." § 3. No bill of attainder shall be passed, nor any ex post facto law; nor shall any title of nobility be granted by the United States, or by either of them; nor shall any person holding an office or place of trust under the United States without the permission of the Legislature accept any present, emolument office or title from a foreign prince or State. Nor shall any Religious Sect, or denomination, or religious test for any office or place, be ever established by law. § 4. Taxes on lands, houses and other real estate, and capitation taxes shall be proportioned in each State by the whole number of free persons, except Indians not taxed, and by three fifths of all other persons. § 5. The two Houses of the Legislature may by joint ballot appoint a Treasurer of the United States. Neither House in the Session of both Houses, without the consent of the other shall adjourn for more than three days at a time. The Senators and Representatives, in attending, going to and coming from the Session of their respective houses shall be privileged from arrest, except for crimes and breaches of the peace. The place of meeting shall always be at the seat of Government which shall be fixed by law. § 6. The laws of the United States, and the treaties which have been made under the articles of the confederation, and which shall be made under this Constitution shall be the supreme law of the Land, and shall be so construed by the Courts of the several States. § 7. The Legislature shall convene at least once in each year, which unless otherwise provided for by law, shall be on the first Monday in December. § 8. The members of the two Houses of the Legislature shall receive a reasonable compensation for their services, to be paid out of the Treasury of the United States and ascertained by law. The law for making such provision shall be passed with the concurrence of the first Assembly and shall extend to succeeding Assemblies; and no succeeding assembly shall concur in an alteration of such provision, so as to increase its own compensation; but there shall be always a law in existence for making such provision. ARTICLE VIII § 1. The Governour or President of each State shall be appointed under the authority of the United States, and shall have a right to negative all laws about to be passed in the State of which he shall be Governour or President, subject to such qualifications and regulations, as the Legislature of the United States shall prescribe. He shall in other respects have the same powers only which the Constitution of the State does or shall allow to its Governour or President, except as to the appointment of Officers of the Militia. § 2. Each Governour or President of a State shall hold his office until a successor be actually appointed, unless he die, or resign or be removed from office by conviction on impeachment. There shall be no appointment of such Governor or President in the Recess of the Senate. The Governours and Presidents of the several States at the time of the ratification of this Constitution shall continue in office in the same manner and with the same powers as if they had been appointed pursuant to the first section of this article. The officers of the Militia in the several States may be appointed under the authority of the U. States; the Legislature whereof may authorize the Governors or Presidents of States to make such appointments with such restrictions as they shall think proper. ARTICLE IX § 1. No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States. § 2. No person shall be eligible as a Senator or Representative unless at the time of his election he be a Citizen and inhabitant of the State in which he is chosen; provided that he shall not be deemed to be disqualified by a temporary absence from the State. § 3. No person entitled by this Constitution to elect or to be elected President of the United States, or a Senator or Representative in the Legislature thereof, shall be disqualified but by the conviction of some offence for which the law shall have previously ordained the punishment of disqualification. But the Legislature may by law provide that persons holding offices under the United States or either of them shall not be eligible to a place in the Assembly or Senate, and shall be during their continuance in office suspended from sitting in the Senate. § 4. No person having an office or place of trust under the United States shall without permission of the Legislature accept any present emolument office or title from any foreign Prince or State. § 5. The Citizens of each State shall be entitled to the rights privileges and immunities of Citizens in every other State; and full faith and credit shall be given in each State to the public acts, records and judicial proceedings of another. § 6. Fugitives from justice from one State who shall be found in another shall be delivered up on the application of the State from which they fled. § 7. No new State shall be erected within the limits of another, or by the junction of two or more States, without the concurrent consent of the Legislatures of the United States and of the States concerned. The Legislature of the United States may admit new States into the Union. § 8. The United States are hereby declared to be bound to guarantee to each State a Republican form of Government, and to protect each State as well against domestic violence as foreign invasion. § 9. All Treaties, Contracts and engagements of the United States of America under the articles of Confederation and perpetual Union, shall have equal validity under this Constitution. § 10. No State shall enter into a Treaty, Alliance, or contract with another, or with a foreign power without the consent of the United States. § 11. The members of the Legislature of the United States and of each State, and all officers Executive & Judicial of the one and of the other shall take an oath or affirmation to support the Constitution of the United States. § 12. This Constitution may receive such alterations and amendments as may be proposed by the Legislature of the United States, with the concurrence of two thirds of the members of both Houses, and ratified by the Legislatures of, or by Conventions of deputies chosen by the people in, two thirds of the States composing the Union. ARTICLE X This Constitution shall be submitted to the consideration of Conventions in the several States, the members whereof shall be chosen by the people of such States respectively under the direction of their respective Legislatures. Each Convention which shall ratify the same, shall appoint the first representatives and Senators from such State according to the rule prescribed in the ---- § of the ---- article. The representatives so appointed shall continue in office for one year only. Each Convention so ratifying shall give notice thereof to the Congress of the United States, transmitting at the same time a list of the Representatives and Senators chosen. When the Constitution shall have been duly ratified, Congress shall give notice of a day and place for the meeting of the Senators and Representatives from the several States; and when these or a majority of them shall have assembled according to such notice, they shall by joint ballot, by plurality of votes, elect a President of the United States; and the Constitution thus organized shall be carried into effect.--_Mad. MSS._ "Col: Hamilton did not propose in the Convention any plan of a Constitution. He had sketched an outline which he read as part of a speech; observing that he did not mean it as a proposition, but only to give a more correct view of his ideas. "Mr. Patterson regularly proposed a plan which was discussed & voted on."--Madison to John Quincy Adams, Montpellier, Nov. 2, 1818, _Dept. of State MSS._, Miscellaneous Letters. Committee rose & the House Adjourned. TUESDAY JUNE 19^{TH} IN COMMITTEE OF WHOLE ON THE PROPOSITIONS OF M^R PATTERSON,--[90] [90] This was the last session of the Convention in Committee of the Whole. The substitute offered yesterday by M^r Dickenson being rejected by a vote now taken on it; Con. N. Y. N. J. Del. ay. Mass. P^a V. N. C. S. C. Geo. no. Mary^d divided M^r Patterson's plan was again at large before the Committee. M^r Madison. Much stress has been laid by some gentlemen on the want of power in the Convention to propose any other than a _federal_ plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a _federal_ plan would support this objection. One characteristic, was that in a _federal_ Government, the power was exercised not on the people individually; but on the people _collectively_, on the _States_. Yet in some instances as in piracies, captures &c. the existing Confederacy, and in many instances the amendments to it proposed by M^r Patterson, must operate immediately on individuals. The other characteristic was, that a _federal_ Gov^t derived its appointments not immediately from the people, but from the States which they respectively composed. Here too were facts on the other side. In two of the States, Connect^t & Rh. Island, the delegates to Cong^s were chosen, not by the Legislatures, but by the people at large; and the plan of M^r P. intended no change in this particular. It had been alledged (by M^r Patterson), that the Confederation having been formed by unanimous consent, could be dissolved by unanimous Consent only. Does this doctrine result from the nature of compacts? does it arise from any particular stipulation in the articles of Confederation? If we consider the federal Union as analagous to the fundamental compact by which individuals compose one Society, and which must in its theoretic origin at least, have been the unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. A breach of the fundamental principles of the compact by a part of the Society would certainly absolve the other part from their obligations to it. If the breach of _any_ article by _any_ of the parties, does not set the others at liberty, it is because, the contrary is _implied_ in the compact itself, and particularly by that law of it, which gives an indefinite authority to the majority to bind the whole in all cases. This latter circumstance shews that we are not to consider the federal Union as analagous to the social compact of individuals: for if it were so, a Majority would have a right to bind the rest, and even to form a new Constitution for the whole, which the Gentl^n from N. Jersey would be among the last to admit. If we consider the federal Union as analagous not to the Social compacts among individual men: but to the conventions among individual States, What is the doctrine resulting from these conventions? Clearly, according to the Expositors of the law of Nations, that a breach of any one article by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. In some treaties indeed it is expressly stipulated that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which in general is understood to dissolve all subsisting Treaties. But are there any exceptions of this sort to the Articles of Confederation? So far from it that there is not even an express stipulation that force shall be used to compell an offending member of the Union to discharge its duty. He observed that the violations of the federal articles had been numerous & notorious. Among the most notorious was an act of N. Jersey herself; by which she _expressly refused_ to comply with a Constitutional requisition of Cong^s and yielded no farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance. He did not wish to draw any rigid inferences from these observations. He thought it proper however that the true nature of the existing confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands. Proceeding to the consideration of M^r Patterson's plan, he stated the object of a proper plan to be twofold. 1. to preserve the Union. 2. to provide a Governm^t that will remedy the evils felt by the States both in their united and individual capacities. Examine M^r P'^s plan, & say whether it promises satisfaction in these respects. 1. Will it prevent the violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Cong^s contain complaints already, from almost every Nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrouled as ever. 2. Will it prevent encroachments on the federal authority? A tendency to such encroachments has been sufficiently exemplified, among ourselves, as well as in every other confederated republic antient and modern. By the federal articles, transactions with the Indians appertain to Cong^s. Yet in several instances, the States have entered into treaties & wars with them. In like manner no two or more States can form among themselves any treaties &c. without the consent of Cong^s. Yet Virg^a & Mary^d in one instance--Pen^a & N. Jersey in another, have entered into compacts, without previous application or subsequent apology. No State again can of right raise troops in time of peace without the like consent. Of all cases of the league, this seems to require the most scrupulous observance. Has not Mass^{ts}, notwithstanding, the most powerful member of the Union, already raised a body of troops? Is she not now augmenting them, without having even deigned to apprise Cong^s of Her intention? In fine--Have we not seen the public land dealt out to Con^t to bribe her acquiescence in the decree constitutionally awarded ag^{st} her claim on the territory of Pen^a: for no other possible motive can account for the policy of Cong^s in that measure?--If we recur to the examples of other confederacies, we shall find in all of them the same tendency of the parts to encroach on the authority of the whole. He then reviewed the Amphyctionic & Achæan confederacies among the antients, and the Helvetic, Germanic & Belgic among the moderns, tracing their analogy to the U. States in the constitution and extent of their federal authorities--in the tendency of the particular members to usurp on these authorities, and to bring confusion & ruin on the whole.--He observed that the plan of Mr. Pat[er]son, besides omitting a controul over the States as a general defence of the federal prerogatives was particularly defective in two of its provisions. 1. Its ratification was not to be by the people at large, but by the _legislatures_. It could not therefore render the acts of Cong^s in pursuance of their powers, even legally _paramount_ to the acts of the States. 2. It gave to the federal Tribunal an appellate jurisdiction only--even in the criminal cases enumerated. The necessity of any such provision supposed a danger of undue acquittals in the State tribunals, of what avail c^d an appellate tribunal be, after an acquittal? Besides in most if not all of the States, the Executives have by their respective _Constitutions_, the right of pard^g. How could this be taken from them by a _legislative_ ratification only? 3. Will it prevent trespasses of the States on each other? Of these enough has been already seen. He instanced Acts of Virg^a & Maryland which gave a preference to their own Citizens in cases where the Citizens of other States are entitled to equality of privileges by the Articles of Confederation. He considered the emissions of paper money & other kindred measures as also aggressions. The States relatively to one another being each of them either Debtor or Creditor; The creditor States must suffer unjustly from every emission by the debtor States. We have seen retaliating Acts on the subject which threatened danger not to the harmony only, but the tranquillity of the Union. The plan of M^r Paterson, not giving even a negative on the Acts of the States, left them as much at liberty as ever to execute their unrighteous projects ag^{st} each other. 4. Will it secure the internal tranquillity of the States themselves? The insurrections in Mass^{ts} admonished all the States of the danger to which they were exposed. Yet the plan of M^r P. contained no provisions for supplying the defect of the Confederation on this point. According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonymous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority. 1. If the minority happen to include all such as possess the skill & habits of military life, with such as possess the great pecuniary resources, one third may conquer the remaining two thirds. 2. one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, & who for obvious reasons may be more ready to join the standard of sedition than that of established Government. 3. where slavery exists, the Republican Theory becomes still more fallacious. 5. Will it secure a good internal legislation & administration to the particular States? In developing the evils which vitiate the political system of the U. S. it is proper to take into view those which prevail within the States individually as well as those which affect them collectively: Since the former indirectly affect the whole; and there is great reason to believe that the pressure of them had a full share in the motives which produced the present Convention. Under this head he enumerated and animadverted on 1. the multiplicity of the laws passed by the several States. 2. the mutability of their laws. 3. the injustice of them. 4. the impotence of them: observing that M^r Patterson's plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the Community. 6. Will it secure the Union ag^{st} the influence of foreign powers over its members. He pretended not to say that any such influence had yet been tried: but it was naturally to be expected that occasions would produce it. As lessons which claimed particular attention, he cited the intrigues practised among the Amphyctionic Confederates first by the Kings of Persia, and afterwards fatally by Philip of Macedon: Among the Achæans, first by Macedon & afterwards no less fatally by Rome: among the Swiss by Austria, France & the lesser neighbouring powers: among the members of the Germanic Body by France, England, Spain & Russia--And in the Belgic Republic, by all the great neighbouring powers. The plan of M^r Patterson, not giving to the general Councils any negative on the will of the particular States, left the door open for the like pernicious Machinations among ourselves. 7. He begged the smaller States which were most attached to M^r Patterson's plan to consider the situation in which it would leave them. In the first place they would continue to bear the whole expence of maintaining their Delegates in Congress. It ought not to be said that if they were willing to bear this burthen, no others had a right to complain. As far as it led the small States to forbear keeping up a representation, by which the public business was delayed, it was evidently a matter of common concern. An examination of the minutes of Congress would satisfy every one that the public business had been frequently delayed by this cause; and that the States most frequently unrepresented in Cong^s were not the larger States. He reminded the Convention of another consequence of leaving on a small State the burden of maintaining a Representation in Cong^s. During a considerable period of the War, one of the Representatives of Delaware, in whom alone before the signing of the Confederation the entire vote of that State and after that event one half of its vote, frequently resided, was a Citizen & Resident of Pen^a and held an office in his own State incompatible with an appointment from it to Cong^s. During another period, the same State was represented by three delegates two of whom were citizens of Penn^a and the third a Citizen of New Jersey. These expedients must have been intended to avoid the burden of supporting Delegates from their own State. But whatever might have been y^e cause, was not in effect the vote of one State doubled, and the influence of another increased by it? In the 2^d place the coercion, on which the efficacy of the plan depends, can never be exerted but on themselves. The larger States will be impregnable, the smaller only can feel the vengeance of it. He illustrated the position by the history of the Amphyctionic confederates: and the ban of the German Empire. It was the cobweb w^{ch} could entangle the weak, but would be the sport of the strong. 8. He begged them to consider the situation in which they would remain in case their pertinacious adherence to an inadmissible plan, should prevent the adoption of any plan. The contemplation of such an event was painful; but it would be prudent to submit to the task of examining it at a distance, that the means of escaping it might be the more readily embraced. Let the Union of the States be dissolved, and one of two consequences must happen. Either the States must remain individually independent & sovereign; or two or more Confederacies must be formed among them. In the first event would the small States be more secure ag^{st} the ambition & power of their larger neighbours, than they would be under a General Government pervading with equal energy every part of the Empire, and having an equal interest in protecting every part ag^{st} every other part? In the second, can the smaller expect that their larger neighbours would confederate with them on the principle of the present Confederacy, which gives to each member, an equal suffrage; or that they would exact less severe concessions from the smaller States, than are proposed in the scheme of M^r Randolph? The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable. It was admitted by both the gentlemen from N. Jersey, (M^r Brearly and M^r Patterson) that it would not be _just to allow Virg^a_ which was 16 times as large as Delaware an equal vote only. Their language was that it would not be _safe for Delaware_ to allow Virg^a 16 times as many votes. The expedient proposed by them was that all the States should be thrown into one mass and a new partition be made into 13 equal parts. Would such a scheme be practicable? The dissimilarities existing in the rules of property, as well as in the manners, habits and prejudices of the different States, amounted to a prohibition of the attempt. It had been found impossible for the power of one of the most absolute princes in Europe (K. of France) directed by the wisdom of one of the most enlightened and patriotic Ministers (M^r Neckar) that any age has produced, to equalize in some points only the different usages & regulations of the different provinces. But admitting a general amalgamation and repartition of the States to be practicable, and the danger apprehended by the smaller States from a proportional representation to be real; would not a particular and voluntary coalition of these with their neighbours, be less inconvenient to the whole community, and equally effectual for their own safety. If N. Jersey or Delaware conceived that an advantage would accrue to them from an equalization of the States, in which case they would necessarily form a junction with their neighbours, why might not this end be attained by leaving them at liberty by the Constitution to form such a junction whenever they pleased? And why should they wish to obtrude a like arrangement on all the States, when it was, to say the least, extremely difficult, would be obnoxious to many of the States, and when neither the inconveniency, nor the benefit of the expedient to themselves, would be lessened by confining it to themselves.--The prospect of many new States to the Westward was another consideration of importance. If they should come into the Union at all, they would come when they contained but few inhabitants. If they sh^d be entitled to vote according to their proportions of inhabitants, all would be right & safe. Let them have an equal vote, and a more objectionable minority than ever might give law to the whole.[91] [91] "Mr. Dickinson supposed that there were good regulations in both. Let us therefore contrast the one with the other, and consolidate such parts of them as the committee approve."--Yates, _Secret Proceedings_, etc., 140. On a question for postponing generally the 1^{st} proposition of M^r Patterson's plan, it was agreed to: N. Y. & N. J. only being no. On the question moved by M^r King whether the Co[~m]itee should rise & M^r Randolph's proposition be reported without alteration, which was in fact a question whether M^r R's should be adhered to as preferable to those of M^r Patterson; Mass^{ts} ay. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay. Copy of the Resol^{ns} of Mr. R. as altered in Com^e and reported to the House. (Of M^r Randolph's plan as reported from the Co[~m]ittee)--the 1. propos: "that a Nat^l Gov^t ought to be established consisting &c." being taken up in the House. M^r Wilson observed that by a Nat^l Gov^t he did not mean one that would swallow up the State Gov^{ts} as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter. He thought, contrary to the opinion of (Col. Hamilton) that they might not only subsist but subsist on friendly terms with the former. They were absolutely necessary for certain purposes which the former could not reach. All large Governments must be subdivided into lesser jurisdictions. As Examples he mentioned Persia, Rome, and particularly the divisions & subdivisions of England by Alfred. Col. Hamilton coincided with the proposition as it stood in the Report. He had not been understood yesterday. By an abolition of the States, he meant that no boundary could be drawn between the National & State Legislatures; that the former must therefore have indefinite authority. If it were limited at all, the rivalship of the States would gradually subvert it. Even as Corporations the extent of some of them as V^a Mass^{ts} &c. would be formidable. _As States_, he thought they ought to be abolished. But he admitted the necessity of leaving in them, subordinate jurisdictions. The examples of Persia & the Roman Empire, cited by (M^r Wilson) were he thought in favor of his doctrine: the great powers delegated to the Satraps & proconsuls having frequently produced revolts, and schemes of independence. M^r King wished as every thing depended on this proposition, that no objections might be improperly indulged ag^{st} the phraseology of it. He conceived that the import of the term "States" "Sovereignty" "_national_" "federal," had been often used & applied in the discussions inaccurately & delusively. The States were not "Sovereigns" in the sense contended for by some. They did not possess the peculiar features of sovereignty, they could not make war, nor peace, nor alliances nor treaties. Considering them as political Beings, they were dumb, for they could not speak to any for[~e]gn Sovereign whatever. They were deaf, for they could not hear any propositions from such Sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. On the other side, if the Union of the States comprises the idea of a confederation, it comprises that also of consolidation. A Union of the States is a Union of the men composing them, from whence a _national_ character results to the whole. Cong^s can act alone without the States--they can act & their acts will be binding ag^{st} the Instructions of the States. If they declare war: war is de jure declared--captures made in pursuance of it are lawful--no Acts of the States can vary the situation, or prevent the judicial consequences. If the States therefore retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a confederacy in some respects--they formed a Nation in others. The Convention could clearly deliberate on & propose any alterations that Cong^s could have done under y^e federal articles, and Could not Cong^s propose by virtue of the last article, a change in any article whatever; and as well that relating to the equality of suffrage, as any other. He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States; but thought that much of their power ought to be taken from them.[92] [92] King, in his notes, gives a résumé of his speech. It illustrates the accuracy of Madison's reporting: "Answer (R. King) The States under the confed. are not sovereign States they can do no act but such as are of a subordinate nature or such as terminate in themselves--and even these are restrained--coinage, P. office &c. they are wholly incompetent to the exercise of any of the gt. & distinguishing acts of sovereignty--They can neither make nor receive (embassies) to or from any other sovereign--they have not the powers of injuring another or of defending themselves from an Injury offered from one another--they are deaf, dumb and impotent--these Faculties are yielded up and the U. S. in C. Assd. hold and possess them, and they alone can exercise them--they are so far out of the controul of the separate States yt. if every State in the Union was to instruct yr. Deleg., and those Delegates within ye powers of the Arts. of Union shd. do an act in violation of their Instructions it wd. nevertheless be valid. If they declared a war, any giving aid or comfort to the enemy wd. be Treason; if peace, any capture on the high seas wd. be piracy. This remark proves yt. the States are now subordinate corporations or societies and not sovereigns--these imperfect States are the confederates and they are the electors of the magistrates who exercise the national sovereignty. The Articles of Confedr. and perpetual Union, are partly federal & partly of the nature of a constitution or form of Govt. arising from and applying to the Citizens of the U. S. & not from the individual States. "The only criterion of determining what is federal & what is national is this, those acts which are for the government of the States only are purely federal, those which are for the government of the Citizens of the individual States are national and not federal. "If then the articles of Confedr. & perpetual union have this twofold capacity, and if they provide for an alteration in a certain mode, why may not they be so altered as that the federal article may be changed to a national one, and the national to a federal? I see no argument that can be objected to the authority. The 5th article regulates the influence of the several States and makes them equal--does not the confed. authorize this alteration, that instead of this Equality, one state may have double the Influence of another--I conceive it does--and so of every Article except that wh. destroys the Idea of a confedy. I think it may be proved that every article may be totally altered provided you have one guarantying to each State the right of regulating its private & internal affairs in the manner of a subordinate corporation. "But admitting that the Arts, of Confed. & perpet. Union, or the powers of the Legis. did not extend to the proposed Reform; yet the public Deputations & the public Danger require it--the system proposed to be adopted is no scheme of a day, calculated to postpone the hour of Danger, & thus leave it to fall with double ruin on our successors--It is no crude and undigested plan; the child of narrow and unextensive views, brought forward under the Auspices of Cowardice & Irresolution--It is a measure of Decision, it is the foundation of Freedom & of national Glory. It will draw on itself and be able to support the severest scrutiny & Examination. It is no idle experiment, no romantic speculation--the measure forces itself upon wise men, and if they have not firmness to look it in the face and protect it--Farewell to the Freedom of our Government--our military glory will be tarnished and our boasts of Freedom will be the scorn of the Enemies of Liberty."--_Life and Correspondence of Rufus King_, i., 602, n. M^r Martin.[93] said he considered that the separation from G. B. placed the 13 States in a state of Nature towards each other; that they would have remained in that state till this time, but for the confederation; that they entered into the Confederation on the footing of equality; that they met now to amend it on the same footing; and that he could never accede to a plan that would introduce an inequality and lay 10 States at the mercy of V^a Mass^{ts} and Penn^a. [93] "Mr. Martin was educated for the Bar, and is Attorney general for the State of Maryland. This Gentleman possesses a good deal of information, but he has a very bad delivery, and so extremely prolix, that he never speaks without tiring the patience of all who hear him. He is about 34 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 330. M^r Wilson, could not admit the doctrine that when the Colonies became independent of G. Britain, they became independent also of each other. He read the declaration of Independence, observing thereon that the _United Colonies_ were declared to be free & independent States; and inferring that they were independent, not _individually_ but _Unitedly_ and that they were confederated as they were independent, States. Col. Hamilton assented to the doctrine of M^r Wilson. He denied the doctrine that the States were thrown into a State of Nature. He was not yet prepared to admit the doctrine that the Confederacy, could be dissolved by partial infractions of it. He admitted that the States met now on an equal footing but could see no inference from that against concerting a change of the system in this particular. He took this occasion of observing for the purpose of appeasing the fears of the small States, that two circumstances would render them secure under a National Gov^t in which they might lose the equality of rank they now held: one was the local situation of the 3 largest States Virg^a Mass^{ts} & P^a. They were separated from each other by distance of place, and equally so, by all the peculiarities which distinguish the interests of one State from those of another. No combination therefore could be dreaded. In the second place, as there was a gradation in the States from V^a the largest down to Delaware the smallest, it would always happen that ambitious combinations among a few States might & w^d be counteracted by defensive combinations of greater extent among the rest. No combination has been seen among the large Counties merely as such, ag^{st} lesser Counties. The more close the Union of the States, and the more compleat the authority of the whole: the less opportunity will be allowed to the stronger States to injure the weaker. Adj^d. WEDNESDAY JUNE 20. 1897. IN CONVENTION. M^r William Blount from N. Carolina took his seat. 1^{st} propos: of the Report of Com^e of the whole, before the House. M^r Elseworth 2^{ded} by M^r Gorham, moves to alter it so as to run "that the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary." This alteration he said would drop the word _national_, and retain the proper title "the United States." He could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished also the plan of the Convention to go forth as an amendment of the articles of the Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification several succeeding Conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up Constitutions. M^r Randolph. did not object to the change of expression, but apprised the gentleman who wished for it that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification. The motion of M^r Elsew^{th} was acquiesced in nem: con: The 2^d Resol: "that the National Legislature ought to consist of two branches" taken up, the word "national" struck out as of course. _M^r Lansing._ observed that the true question here was, whether the Convention would adhere to or depart from the foundation of the present Confederacy; and moved instead of the 2^d Resolution, "that the powers of Legislation be vested in the U. States in Congress." He had already assigned two reasons ag^{st} such an innovation as was proposed: 1. the want of competent powers in the Convention.--2. the state of the public mind. It had been observed by (M^r Madison) in discussing the first point, that in two States the Delegates to Cong^s were chosen by the people. Notwithstanding the first appearance of this remark, it had in fact no weight, as the Delegates however chosen, did not represent the people merely as so many individuals; but as forming a Sovereign State. (Mr. Randolph) put it, he said, on its true footing namely that the public safety superseded the scruple arising from the review of our powers. But in order to feel the force of this consideration, the same impression must be had of the public danger. He had not himself the same impression, and could not therefore dismiss his scruple. (M^r Wilson) contended that as the Convention were only to recommend, they might recommend what they pleased. He differed much from him. Any act whatever of so respectable a body must have a great effect, and if it does not succeed, will be a source of great dissentions. He admitted that there was no certain criterion of the Public mind on the subject. He therefore recurred to the evidence of it given by the opposition in the States to the scheme of an Impost. It could not be expected that those possessing Sovereignty could ever voluntarily part with it. It was not to be expected from any one State, much less from thirteen. He proceeded to make some observations on the plan itself and the argum^{ts} urged in support of it. The point of Representation could receive no elucidation from the case of England. The corruption of the boroughs did not proceed from their comparative smallness; but from the actual fewness of the inhabitants, some of them not having more than one or two. A great inequality existed in the Counties of England. Yet the like complaint of peculiar corruption in the small ones had not been made. It had been said that Congress represent the State Prejudices: will not any other body whether chosen by the Legislatures or people of the States, also represent their prejudices? It had been asserted by his colleague (Col. Hamilton) that there was no coincidence of interests among the large States that ought to excite fears of oppression in the smaller. If it were true that such a uniformity of interests existed among the States, there was equal safety for all of them, whether the representation remained as heretofore, or were proportioned as now proposed. It is proposed that the Gen^l Legislature shall have a negative on the laws of the States. Is it conceivable that there will be leisure for such a task? There will on the most moderate calculation, be as many Acts sent up from the States as there are days in the year. Will the members of the General Legislature be competent Judges? Will a gentleman from Georgia be a judge of the expediency of a law which is to operate in N. Hampshire. Such a Negative would be more injurious than that of Great Britain heretofore was. It is said that the National Gov^t must have the influence arising from the grant of offices and honors. In order to render such a Government effectual he believed such an influence to be necessary. But if the States will not agree to it, it is in vain, worse than in vain to make the proposition. If this influence is to be attained, the States must be entirely abolished. Will any one say this would ever be agreed to? He doubted whether any Gen^l Government equally beneficial to all can be attained. That now under consideration he is sure, must be utterly unattainable. He had another objection. The system was too novel & complex. No man could foresee what its operation will be either with respect to the Gen^l Gov^t or the State Gov^{ts}. One or other it has been surmised must absorb the whole. Col. Mason. did not expect this point would have been reagitated. The essential differences between the two plans, had been clearly stated. The principal objections ag^{st} that of M^r R. were the _want of power_ & the _want of practicability_. There can be no weight in the first as the fiat is not to be _here_, but in the people. He thought with his colleague M^r R. that there were besides certain crisises, in which all the ordinary cautions yielded to public necessity. He gave as an example, the eventual Treaty with G. B. in forming which the Co[~m]^{srs} of the U. S. had boldly disregarded the improvident shackles of Cong^s had given to their Country an honorable & happy peace, and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. The _impracticability_ of gaining the public concurrence he thought was still more groundless. (M^r Lansing) had cited the attempts of Congress to gain an enlargement of their powers, and had inferred from the miscarriage of these attempts, the hopelessness of the plan which he (M^r L) opposed. He thought a very different inference ought to have been drawn; viz that the plan which (M^r L) espoused, and which proposed to augment the powers of Congress, never could be expected to succeed. He meant not to throw any reflections on Cong^s as a body, much less on any particular members of it. He meant however to speak his sentiments without reserve on this subject; it was a privilege of age, and perhaps the only compensation which nature had given for, the privation of so many other enjoyments: and he should not scruple to exercise it freely. Is it to be thought that the people of America, so watchful over their interests; so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, and that too not chosen immediately by themselves? They never will. They never ought. Will they trust such a body, with the regulation of their trade, with the regulation of their taxes; with all the other great powers, which are in contemplation? Will they give unbounded confidence to a secret Journal--to the intrigues--to the factions which in the nature of things appertain to such an Assembly? If any man doubts the existence of these characters of Congress, let him consult their Journals for the years 78, 79, & 80.--It will be said, that if the people are averse to parting with power, why is it hoped that they will part with it to a National Legislature. The proper answer is that in this case they do not part with power: they only transfer it from one sett of immediate Representatives to another sett.--Much has been said of the unsettled state of the mind of the people, he believed the mind of the people of America, as elsewhere, was unsettled as to some points; but settled as to others. In two points he was sure it was well settled. 1. in an attachment to Republican Government. 2. in an attachment to more than one branch in the Legislature. Their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. This must either have been a miracle, or have resulted from the genius of the people. The only exceptions to the establishm^t of two branches in the Legislatures are the State of P^a & Cong^s and the latter the only single one not chosen by the people themselves. What has been the consequence? The people have been constantly averse to giving that Body further powers--It was acknowledged by (M^r Patterson) that his plan could not be enforced without military coercion. Does he consider the force of this concession. The most jarring elements of Nature; fire & water themselves are not more incompatible that[n] such a mixture of civil liberty and military execution. Will the militia march from one State to another, in order to collect the arrears of taxes from the delinquent members of the Republic? Will they maintain an army for this purpose? Will not the Citizens of the invaded State assist one another till they rise as one Man, and shake off the Union altogether. Rebellion is the only case, in which the military force of the State can be properly exerted ag^{st} its Citizens. In one point of view he was struck with horror at the prospect of recurring to this expedient. To punish the non-payment of taxes with death, was a severity not yet adopted by despotism itself: yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty. He took this occasion to repeat, that notwithstanding his solicitude to establish a national Government, he never would agree to abolish the State Gov^{ts} or render them absolutely insignificant. They were as necessary as the Gen^l Gov^t and he would be equally careful to preserve them. He was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. The Convention, tho' comprising so many distinguished characters, could not be expected to make a faultless Gov^t. And he would prefer trusting to Posterity the amendment of its defects, rather than to push the experiment too far. M^r Luther Martin agreed with (Col Mason) as to the importance of the State Gov^{ts} he would support them at the expence of the Gen^l Gov^t which was instituted for the purpose of that support. He saw no necessity for two branches, and if it existed Congress might be organized into two. He considered Cong^s as representing the people, being chosen by the Legislatures who were chosen by the people. At any rate, Congress represented the Legislatures; and it was the Legislatures not the people who refused to enlarge their powers. Nor could the rule of voting have been the ground of objection, otherwise ten of the States must always have been ready, to place further confidence in Cong^s. The causes of repugnance must therefore be looked for elsewhere.--At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one: to these they look up for the security of their lives, liberties & properties: to these they must look up. The federal Gov^t they formed, to defend the whole ag^{st} foreign nations, in case of war, and to defend the lesser States ag^{st} the ambition of the larger: they are afraid of granting power unnecessarily, lest they should defeat the original end of the Union; lest the powers should prove dangerous to the sovereignties of the particular States which the Union was meant to support; and expose the lesser to being swallowed up by the larger. He conceived also that the people of the States having already vested their powers in their respective Legislatures, could not resume them without a dissolution of their Governments. He was ag^{st} Conventions in the States: was not ag^{st} assisting States ag^{st} rebellious subjects; thought the _federal_ plan of M^r Patterson did not require coercion more than the _National one_, as the latter must depend for the deficiency of its revenues on requisitions & quotas, and that a national Judiciary extended into the States would be ineffectual, and would be viewed with a jealousy inconsistent with its usefulness. M^r Sherman 2^{ded} & supported M^r Lansings motion. He admitted two branches to be necessary in the State Legislatures, but saw no necessity for them in a Confederacy of States. The examples were all, of a single Council. Cong^s carried us thro' the war, and perhaps as well as any Gov^t could have done. The complaints at present are not that the views of Cong^s are unwise or unfaithful; but that their powers are insufficient for the execution of their views. The national debt & the want of power somewhere to draw forth the National resources, are the great matters that press. All the States were sensible of the defect of power in Cong^s. He thought much might be said in apology for the failure of the State Legislatures to comply with the Confederation. They were afraid of leaning too hard on the people, by accumulating taxes; no _constitutional_ rule had been or could be observed in the quotas--the Accounts also were unsettled & every State supposed itself in advance, rather than in arrears. For want of a general system, taxes to a due amount had not been drawn from trade which was the most convenient resource. As almost all the States had agreed to the recommendation of Cong^s on the subject of an impost, it appeared clearly that they were willing to trust Cong^s with power to draw a revenue from Trade. There is no weight therefore in the argument drawn from a distrust of Cong^s for money matters being the most important of all, if the people will trust them with power as to them, they will trust them with any other necessary powers. Cong^s indeed by the confederation have in fact the right of saying how much the people shall pay, and to what purpose it shall be applied: and this right was granted to them in the expectation that it would in all cases have its effect. If another branch were to be added to Cong^s to be chosen by the people, it would serve to embarrass. The people would not much interest themselves in the elections, a few designing men in the large districts would carry their points, and the people would have no more confidence in their new representatives than in Cong^s. He saw no reason why the State Legislatures should be unfriendly as had been suggested, to Cong^s. If they appoint Cong^s and approve of their measures, they would be rather favourable and partial to them. The disparity of the States in point of size he perceived was the main difficulty. But the large States had not yet suffered from the equality of votes enjoyed by the small ones. In all great and general points, the interests of all the States were the same. The State of Virg^a notwithstanding the equality of votes, ratified the Confederation without, or even proposing, any alteration. Mass^{ts} also ratified without any material difficulty &c. In none of the ratifications is the want of two branches noticed or complained of. To consolidate the States as some had proposed would dissolve our Treaties with foreign Nations, which had been formed with us, as _Confederated_ States. He did not however suppose that the creation of two branches in the Legislature would have such an effect. If the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other. This was necessary to secure the rights of the lesser States; otherwise three or four of the large States would rule the others as they please. Each State like each individual had its peculiar habits usages and manners, which constituted its happiness. It would not therefore give to others a power over this happiness, any more than an individual would do, when he could avoid it. M^r Wilson. urged the necessity of two branches; observed that if a proper model were not to be found in other Confederacies it was not to be wondered at. The number of them was small & the duration of some at least short. The Amphyctionic and Achæan were formed in the infancy of political Science; and appear by their History & fate, to have contained radical defects. The Swiss & Belgic Confederacies were held together not by any vital principle of energy but by the incumbent pressure of formidable neighbouring nations: The German owed its continuance to the influence of the H. of Austria. He appealed to our own experience for the defects of our Confederacy. He had been 6 years in the 12 since the commencement of the Revolution, a member of Congress, and had felt all its weaknesses. He appealed to the recollection of others whether on many important occasions, the public interest had not been obstructed by the small members of the Union. The success of the Revolution was owing to other causes, than the Constitution of Congress. In many instances it went on even ag^{st} the difficulties arising from Cong^s themselves. He admitted that the large States did accede as had been stated, to the Confederation in its present form. But it was the effect of necessity not of choice. There are other instances of their yielding from the same motive to the unreasonable measures of the small States. The situation of things is now a little altered. He insisted that a jealousy would exist between the State Legislatures & the General Legislature: observing that the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Gen^l or State Legislatures, provided it be exercised most for his happiness. His representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl: with the eye of a jealous rival. He observed that the addresses of Cong^s to the people at large, had always been better received & produced greater effect, than those made to the Legislatures. On the question for postponing in order to take up M^r Lansing's proposition "to vest the powers of legislation in Cong^s" Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d div^d. V^a no. N. C. no. S. C. no. Geo. no. On motion of the Deputies from Delaware, the question on the 2^d Resolution in the Report from the Committee of the whole was postponed till tomorrow. Adj^d. THURSDAY JUNE 21. IN CONVENTION. M^r Jonathan Dayton from N. Jersey took his seat.[94] [94] From June 21 to July 18 inclusive not copied by M^r Eppes.--Madison's Note. This applies evidently to notes he permitted Hon. George W. Eppes, Jefferson's son-in-law, to take. Doc^r Johnson.[95] On a comparison of the two plans which had been proposed from Virginia & N. Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the States. The plan from V^a did not profess to destroy this individuality altogether, but was charged with such a tendency. One Gentleman alone (Col. Hamilton) in his animadversions on the plan of N. Jersey, boldly and decisively contended for an abolition of the State Gov^{ts}. M^r Wilson & the gentleman from Virg^a who also were adversaries of the plan of N. Jersey held a different language. They wished to leave the States in possession of a considerable, tho' a subordinate jurisdiction. They had not yet however shewn how this c^d consist with, or be secured ag^{st} the general sovereignty & jurisdiction, which they proposed to give to the National Government. If this could be shewn in such a manner as to satisfy the patrons of the N. Jersey propositions, that the individuality of the States would not be endangered, many of their objections would no doubt be removed. If this could not be shewn their objections would have their full force. He wished it therefore to be well considered whether in case the States, as was proposed, sh^d retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the Gen^l Gov^t, without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils. [95] "D^r Johnson is a character much celebrated for his legal knowledge; he is said to be one of the first classics in America, and certainly possesses a very strong and enlightened understanding. "As an Orator in my opinion, there is nothing in him that warrants the high reputation which he has for public speaking. There is something in the tone of his voice not pleasing to the Ear,--but he is eloquent and clear,--always abounding with information and instruction. He was once employed as an Agent for the State of Connecticut to state her claims to certain landed territory before the British House of Commons; this Office he discharged with so much dignity, and made such an ingenious display of his powers, that he laid the foundation of a reputation which will probably last much longer than his own life. D^r Johnson is about sixty years of age, possesses the manners of a Gentleman, and engages the Hearts of Men by the sweetness of his temper, and that affectionate style of address with which he accosts his acquaintance."--Pierce's Notes, _Am. Hist. Rev._, iii., 326. M^r Wilson's respect for Doc^r Johnson, added to the importance of the subject led him to attempt, unprepared as he was, to solve the difficulty which had been started. It was asked how the Gen^l Gov^t and individuality of the particular States could be reconciled to each other; and how the latter could be secured ag^{st} the former? Might it not, on the other side be asked how the former was to be secured ag^{st} the latter? It was generally admitted that a jealousy & rivalship would be felt between the Gen^l & particular Gov^{ts}. As the plan now stood, tho' indeed contrary to his opinion, one branch of the Gen^l Gov^t (the Senate or second branch) was to be appointed by the State Legislatures. The State Legislatures, therefore, by this participation in the Gen^l Gov^t would have an opportunity of defending their rights. Ought not a reciprocal opportunity to be given to the Gen^l Gov^t of defending itself by having an appointment of some one constituent branch of the State Gov^{ts}. If a security be necessary on one side, it w^d seem reasonable to demand it on the other. But taking the matter in a more general view, he saw no danger to the States from the Gen^l Gov^t. In case a combination should be made by the large ones it w^d produce a general alarm among the rest; and the project w^d be frustrated. But there was no temptation to such a project. The States having in general a similar interest, in case of any propositions in the National Legislature to encroach on the State Legislatures, he conceived a general alarm w^d take place in the National Legislature itself, that it would communicate itself to the State Legislatures, and w^d finally spread among the people at large. The Gen^l Gov^t will be as ready to preserve the rights of the States as the latter are to preserve the rights of individuals; all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the State Gov^{ts} in possession of what the people wish them to retain. He could not discover, therefore any danger whatever on the side from which it was apprehended. On the contrary, he conceived that in spite of every precaution the General Gov^t would be in perpetual danger of encroachments from the State Gov^{ts}. M^r Madison was of opinion that there was 1. less danger of encroachment from the Gen^l Gov^t than from the State Gov^{ts} 2. that the mischief from encroachments would be less fatal if made by the former, than if made by the latter. 1. All the examples of other confederacies prove the greater tendency in such systems to anarchy than to tyranny; to a disobedience of the members than usurpations of the federal head. Our own experience had fully illustrated this tendency.--But it will be said that the proposed change in the principles & form of the Union will vary the tendency; that the Gen^l Gov^t will have real & greater powers, and will be derived in one branch at least from the people, not from the Gov^{ts} of the States. To give full force to this objection, let it be supposed for a moment that indefinite power should be given to the Gen^l Legislature, and the States reduced to Corporations dependent on the Gen^l Legislature; Why sh^d it follow that the Gen^l Gov^t w^d take from the States any branch of their power as far as its operation was beneficial, and its continuance desireable to the people? In some of the States, particularly in Connecticut, all the Townships are incorporated, and have a certain limited jurisdiction. Have the Representatives of the people of the Townships in the Legislature of the State ever endeavoured to despoil the Townships of any part of their local authority? As far as this local authority is convenient to the people they are attached to it; and their representatives chosen by & amenable to them, naturally respect their attachment to this, as much as their attachment to any other right or interest. The relation of a General Gov^t to State Gov^{ts} is parallel. 2. Guards were more necessary ag^{st} encroachments of the State Gov^{ts} on the Gen^l Gov^t than of the latter on the former. The great objection made ag^{st} an abolition of the State Gov^{ts} was that the Gen^l Gov^t could not extend its care to all the minute objects which fall under the cognizance of the local jurisdictions. The objection as stated lay not ag^{st} the probable abuse of the general power, but ag^{st} the imperfect use that could be made of it throughout so great an extent of country, and over so great a variety of objects. As far as its operation would be practicable it could not in this view be improper; as far as it would be impracticable, the conveniency of the Gen^l Gov^t itself would concur with that of the people in the maintenance of subordinate Governments. Were it practicable for the Gen^l Gov^t to extend its care to every requisite object without the cooperation of the State Gov^{ts} the people would not be less free as members of one great Republic than as members of thirteen small ones. A Citizen of Delaware was not more free than a Citizen of Virginia: nor would either be more free than a Citizen of America. Supposing therefore a tendency in the Gen^l Government to absorb the State Gov^{ts} no fatal consequence could result. Taking the reverse as the supposition, that a tendency should be left in the State Gov^{ts} towards an independence on the General Gov^t and the gloomy consequences need not be pointed out. The imagination of them, must have suggested to the States the experiment we are now making to prevent the calamity, and must have formed the chief motive with those present to undertake the arduous task. On the question for resolving "that the Legislature ought to consist of two Branches" Mass. ay. Con^t ay. N. Y. no. N. Jersey, no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay. The _third_ resolution of the Report taken into consideration. Gen^l Pinkney moved "that the 1^{st} branch, instead of being elected by the people, sh^d be elected in such manner as the Legislature of each State should direct." He urged 1. that this liberty would give more satisfaction, as the Legislatures could then accommodate the mode to the conveniency & opinions of the people. 2. that it would avoid the undue influence of large Counties which would prevail if the elections were to be made in districts as must be the mode intended by the Report of the Committee. 3. that otherwise disputed elections must be referred to the General Legislature which would be attended with intolerable expence and trouble to the distant parts of the Republic. M^r L. Martin seconded the Motion.[96] [96] After Martin's second, according to Yates: "M^r Madison. I oppose the motion--there are no difficulties, but they may be obviated in the details connected with the subject."--Yates, _Secret Proceedings_, etc., 149. Col. Hamilton considered the Motion as intended manifestly to transfer the election from the people to the State Legislatures, which would essentially vitiate the plan. It would increase that State influence which could not be too watchfully guarded ag^{st}. All too must admit the possibility, in case the Gen^l Gov^t sh^d maintain itself, that the State Gov^{ts} might gradually dwindle into nothing. The system therefore sh^d not be engrafted on what might possibly fail. M^r Mason urged the necessity of retaining the election by the people. Whatever inconveniency may attend the democratic principle, it must actuate one part of the Gov^t. It is the only security for the rights of the people. M^r Sherman, would like an election by the Legislatures best, but is content with the plan as it stands. M^r Rutlidge could not admit the solidity of the distinction between a mediate & immediate election by the people. It was the same thing to act by oneself, and to act by another. An election by the Legislature would be more refined than an election immediately by the people: and would be more likely to correspond with the sense of the whole community. If this Convention had been chosen by the people in districts it is not to be supposed that such proper characters would have been preferred. The Delegates to Cong^s he thought had also been fitter men than would have been appointed by the people at large. M^r Wilson considered the election of the 1^{st} branch by the people not only as the Corner Stone, but as the foundation of the fabric: and that the difference between a mediate & immediate election was immense. The difference was particularly worthy of notice in this respect: that the Legislatures are actuated not merely by the sentiment of the people; but have an official sentiment opposed to that of the Gen^l Gov^t and perhaps to that of the people themselves. M^r King enlarged on the same distinction. He supposed the Legislatures w^d constantly choose men subservient to their own views as contrasted to the general interest; and that they might even devise modes of election that w^d be subversive of the end in view. He remarked several instances in which the views of a State might be at variance with those of the Gen^l Gov^t: and mentioned particularly a competition between the National & State debts, for the most certain & productive funds. Gen^l Pinkney was for making the State Gov^{ts} a part of the General System. If they were to be abolished, or lose their agency, S. Carolina & other States would have but a small share of the benefits of Gov^t. On the question for Gen^l Pinkney motion to substitute election of the 1^{st} branch in such mode as the Legislatures should appoint, in stead of its being elected by the people" Mass^{ts} no. Con^t ay. N. Y. no. N. J. ay. P^a no. Del. ay. M^d div^d. V^a no. N. C. no. S. C. ay. Geo. no. General Pinkney then moved that the 1^{st} branch be elected _by the people_ in such mode as the Legislatures should direct; but waived it on its being hinted that such a provision might be more properly tried in the detail of the plan. On the question for y^e election of the 1^{st} branch by the _people_" Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. no. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay. Election of the 1^{st} branch "for the term of three years," considered. M^r Randolph moved to strike out, "three years" and insert "two years"--he was sensible that annual elections were a source of great mischiefs in the States, yet it was the want of such checks ag^{st} the popular intemperence as were now proposed, that rendered them so mischievous. He would have preferred annual to biennial, but for the extent of the U. S. and the inconveniency which would result from them to the representatives of the extreme parts of the Empire. The people were attached to frequency of elections. All the Constitutions of the States except that of S. Carolina, had established annual elections. M^r Dickinson. The idea of annual elections was borrowed from the antient Usage of England, a country much less extensive than ours. He supposed biennial would be inconvenient. He preferred triennial, and in order to prevent the inconveniency of an entire change of the whole number at the same moment, suggested a rotation, by an annual election of one third. M^r Elseworth was opposed to three years, supposing that even one year was preferable to two years. The people were fond of frequent elections and might be safely indulged in one branch of the Legislature. He moved for 1 year. M^r Strong[97] seconded & supported the motion. [97] "M^r Strong is a Lawyer of some eminence,--he has received a liberal education, and has good connections to recommend him. As a speaker he is feeble, and without confidence. This Gent^n is about thirty five years of age, and greatly in the esteem of his Colleagues."--Pierce's Notes, _Amer. Hist. Rev._ iii., 326. M^r Wilson being for making the 1^{st} branch an effectual representation of the people at large, preferred an annual election of it. This frequency was most familiar & pleasing to the people. It would not be more inconvenient to them, than triennial elections, as the people in all the States have annual meetings with which the election of the National representatives might be made to co-incide. He did not conceive that it would be necessary for the Nat^l Leigsl: to sit constantly; perhaps not half--perhaps not one fourth of the year. M^r Madison was persuaded that annual elections would be extremely inconvenient and apprehensive that biennial would be too much so; he did not mean inconvenient to the electors; but to the representatives. They would have to travel seven or eight hundred miles from the distant parts of the Union; and would probably not be allowed even a reimbursement of their expences. Besides, none of those who wished to be re-elected would remain at the seat of Governm^t; confiding that their absence would not affect them. The members of Cong^s had done this with few instances of disappointment. But as the choice was here to be made by the people themselves who would be much less complaisant to individuals, and much more susceptible of impressions from the presence of a Rival candidate, it must be supposed that the members from the most distant States would travel backwards & forwards at least as often as the elections should be repeated. Much was to be said also on the time requisite for new Members who would always form a large proportion, to acquire that knowledge of the affairs of the States in general without which their trust could not be usefully discharged. M^r Sherman preferred annual elections, but would be content with biennial. He thought the Representatives ought to return home and mix with the people. By remaining at the seat of Gov^t they would acquire the habits of the place which might differ from those of their Constituents. Col. Mason observed that the States being differently situated such a rule ought to be formed as would put them as nearly as possible on a level. If elections were annual the middle States would have a great advantage over the extreme ones. He wished them to be biennial; and the rather as in that case they would coincide with the periodical elections of S. Carolina as well of the other States. Col. Hamilton urged the necessity of 3 years, there ought to be neither too much nor too little dependence, on the popular sentiments. The checks in the other branches of the Govern^t would be but feeble, and would need every auxiliary principle that could be interwoven. The British House of Commons were elected septennially, yet the democratic spirit of y^e Constitution had not ceased. Frequency of elections tended to make the people listless to them; and to facilitate the success of little cabals. This evil was complained of in all the States. In Virg^a it had been lately found necessary to force the attendance & voting of the people by severe regulations. On the question for striking out "three years" Mass^{ts} ay. Con^t ay. N. Y. no. N. J. div^d. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. The motion for "two years" was then inserted nem. con. Adj^d. FRIDAY JUNE 22. IN CONVENTION The clause in Resol. 3 "to receive fixed stipends to be paid out of the Nation^l Treasury" considered. M^r Elseworth, moved to substitute payment by the States out of their own Treasurys: observing that the manners of different States were very different in the stile of living and in the profits accruing from the exercise of like talents. What would be deemed therefore a reasonable compensation in some States, in others would be very unpopular, and might impede the system of which it made a part. M^r Williamson favored the idea. He reminded the House of the prospect of new States to the Westward. They would be too poor--would pay little into the common Treasury--and would have a different interest from the old States. He did not think therefore that the latter ought to pay the expences of men who would be employed in thwarting their measures & interests. M^r Ghorum[98] wished not to refer the matter to the State Legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them. He thought also it would be wrong to fix the compensations by the constitution, because we could not venture to make it as liberal as it ought to be without exciting an enmity ag^{st} the whole plan. Let the Nat^l Legisl: provide for their own wages from time to time; as the State Legislatures do. He had not seen this part of their power abused, nor did he apprehend an abuse of it. [98] "M^r Gorham is a merchant in Boston, high in reputation, and much in the esteem of his country-men. He is a man of very good sense, but not much improved in his education. He is eloquent and easy in public debate, but has nothing fashionable or elegant in his style;--all he aims at is to convince, and where he fails it never is from his auditory not understanding him, for no man is more perspicuous and full. He has been President of Congress, and three years a Member of that Body. M^r Gorham is about 46 years of age, rather lusty, and has an agreeable and pleasing manner."--Pierce's Notes, _Am. Hist. Rev._, iii., 325. M^r Randolph said he feared we were going too far, in consulting popular prejudices. Whatever respect might be due to them, in lesser matters, or in cases where they formed the permanent character of the people, he thought it neither incumbent on nor honorable for the Convention, to sacrifice right & justice to that consideration. If the States were to pay the members of the Nat^l Legislature, a dependence would be created that would vitiate the whole System. The whole nation has an interest in the attendance & services of the members. The Nation^l Treasury therefore is the proper fund for supporting them. M^r King, urged the danger of creating a dependence on the States by leav^g to them the payment of the members of the Nat^l Legislature. He supposed it w^d be best to be explicit as to the compensation to be allowed. A reserve on that point, or a reference to the Nat^l Legislature of the quantum, would excite greater opposition than any sum that would be actually necessary or proper. M^r Sherman contended for referring both the quantum and the payment of it to the State Legislatures. M^r Wilson was ag^{st} _fixing_ the compensation as circumstances would change and call for a change of the amount. He thought it of great moment that the members of the Nat^l Gov^t should be left as independent as possible of the State Gov^{ts} in all respects. M^r Madison concurred in the necessity of preserving the compensations for the Nat^l Gov^t independent on the State Gov^{ts} but at the same time approved of _fixing_ them by the Constitution, which might be done by taking a standard which w^d not vary with circumstances. He disliked particularly the policy suggested by M^r Williamson of leaving the members from the poor States beyond the Mountains, to the precarious & parsimonious support of their constituents. If the Western States hereafter arising should be admitted into the Union, they ought to be considered as equals & as brethren. If their representatives were to be associated in the Common Councils, it was of common concern that such provisions should be made as would invite the most capable and respectable characters into the service. M^r Hamilton apprehended inconveniency from _fixing_ the wages. He was strenuous ag^{st} making the National Council dependent on the Legislative rewards of the States. Those who pay are the masters of those who are paid. Payment by the States would be unequal as the distant States would have to pay for the same term of attendance and more days in travelling to & from the seat of the Gov^t. He expatiated emphatically on the difference between the feelings & views of the _people_--& the _Governments_ of the States arising from the personal interest & official inducements which must render the latter unfriendly to the Gen^l Gov^t. M^r Wilson moved that the Salaries of the 1^{st} branch "_be ascertained by the National Legislature_," and be paid out of the Nat^l Treasury. M^r Madison, thought the members of the Legis^l too much interested to ascertain their own compensation. It w^d be indecent to put their hands into the public purse for the sake of their own pockets. On this question Mass. no. Con^t no. N. Y. div^d N. J. ay. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. div^d. On the question for striking out "Nat^l Treasury" as moved by M^r Elseworth. M^r Hamilton renewed his opposition to it. He pressed the distinction between the State Gov^{ts} & the people. The former w^d be the rivals of the Gen^l Gov^t. The State legislatures ought not therefore to be the paymasters of the latter. M^r Elseworth. If we are jealous of the State Gov^{ts} they will be so of us. If on going home I tell them we gave the Gen: Gov^t such powers because we c^d not trust you. Will they adopt it, and with^t y^r approbation it is a nullity.[99] [99] According to Yates, Wilson followed Ellsworth: "Mr. Wilson. I am not for submitting the national government to the approbation of the state legislatures. I know that they and the state officers will oppose it. I am for carrying it to the people of each state."--Yates, _Secret Proceedings_, etc., 153. Mass^{ts} ay. Con^t ay. N. Y. div^d. N. J. no. Pen^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. div^d.[100] [100] (It appeared that Mass^{ts} concurred, not because they thought the State Treas^y ought to be substituted; but because they thought nothing should be said on the subject, in which case it w^d silently devolve on the Nat^l Treasury to support the National Legislature.)--Madison's Note. On a question for substituting "adequate compensation" in place of "fixt stipends" it was agreed to nem. con. the friends of the latter being willing that the practicability of _fixing_ the compensation should be considered hereafter in forming the details. It was then moved by M^r Butler that a question be taken on both points jointly; to wit "adequate compensation to be paid out of the Nat^l Treasury." It was objected to as out of order, the parts having been separately decided on. The Presid^t refer^d the question of order to the House, and it was determined to be in order. Con. N. J. Del. M^d N. C. S. C.--ay.--N. Y. P^a V^a Geo. no.--Mass. divided. The question on the sentence was then postponed by S. Carolina in right of the State. Col. Mason moved to insert "twenty-five years of age as a qualification for the members of the 1^{st} branch." He thought it absurd that a man today should not be permitted by the law to make a bargain for himself, and tomorrow should be authorized to manage the affairs of a great nation. It was more extraordinary as every man carried with him in his own experience a scale for measuring the deficiency of young politicians; since he would if interrogated be obliged to declare that his political opinions at the age of 21. were too crude & erroneous to merit an influence on public measures. It had been said that Cong^s had proved a good school for our young men. It might be so for any thing he knew but if it were, he chose that they should bear the expence of their own education. M^r Wilson was ag^{st} abridging the rights of election in any shape. It was the same thing whether this were done by disqualifying the objects of choice, or the persons chusing. The motion tended to damp the efforts of genius, and of laudable ambition. There was no more reason for incapacitating _youth_ than _age_, where the requisite qualifications were found. Many instances might be mentioned of signal services rendered in high stations to the public before the age of 25: The present M^r Pitt and Lord Bolingbroke were striking instances. On the question for inserting "25 years of age" Mass^{ts} no. Con^t ay. N. Y. div^d. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no. M^r Ghorum moved to strike out the last member of the 3 Resol: concerning ineligibility of members of the 1^{st} branch to office during the term of their membership & for one year after. He considered it as unnecessary & injurious. It was true abuses had been displayed in G. B. but no one c^d say how far they might have contributed to preserve the due influence of the Gov^t nor what might have ensued in case the contrary theory had been tried. M^r Butler opposed it. This precaution ag^{st} intrigue was necessary. He appealed to the example of G. B. where men got into Parl^t that they might get offices for themselves or their friends. This was the source of the corruption that ruined their Gov^t. M^r King, thought we were refining too much. Such a restriction on the members would discourage merit. It would also give a pretext to the Executive for bad appointments, as he might always plead this as a bar to the choice he wished to have made. M^r Wilson was ag^{st} fettering elections, and discouraging merit. He suggested also the fatal consequence in time of war, of rendering perhaps the best Commanders ineligible; appealing to our situation during the late war, and indirectly leading to a recollection of the appointment of the Co[~m]ander in Chief out of Congress.[101] [101] According to Yates, Madison followed Wilson: "Mr. Madison. Some gentlemen give too much weight and others too little to this subject. If you have no exclusive clause, there may be danger of creating offices or augmenting the stipends of those already created, in order to gratify some members if they were not excluded. Such an instance has fallen within my own observation. I am therefore of opinion, that no office ought to be open to a member, which may be created or augmented while he is in the legislature."--Yates, _Secret Proceedings_, etc., 155. Yates gives the rest of the debate as follows: "Mr. Mason. It seems as if it was taken for granted, that all offices will be filled by the executive, while I think many will remain in the gift of the legislature. In either case, it is necessary to shut the door against corruption. If otherwise, they may make or multiply offices, in order to fill them. Are gentlemen in earnest when they suppose that this exclusion will prevent the first characters from coming forward? Are we not struck at seeing the luxury and venality which has already crept in among us? If not checked we shall have ambassadors to every petty state in Europe--the little republic of _St. Marino_ not excepted. We must in the present system remove the temptation. I admire many parts of the British constitution and government, but I detest their corruption.--Why has the power of the crown so remarkably increased the last century? A stranger, by reading their laws, would suppose it considerably diminished; and yet, by the sole power of appointing the increased officers of government, corruption pervades every town and village in the kingdom. If such a restriction should abridge the right of election, it is still necessary, as it will prevent the people from ruining themselves; and will not the same causes here produce the same effects? I consider this clause as the corner-stone on which our liberties depend--and if we strike it out we are erecting a fabric for our destruction. "Mr. Gorham. The corruption of the English government cannot be applied to America. This evil exists there in the venality of their boroughs; but even this corruption has its advantage, as it gives stability to their government. We do not know what the effect would be if members of parliament were excluded from offices. The great bulwark of our liberty is the frequency of elections, and the great danger is the septennial parliaments. "Mr. Hamilton. In all general questions which become the subjects of discussion, there are always some truths mixed with falsehoods. I confess there is danger where men are capable of holding two offices. Take mankind in general, they are vicious--their passions may be operated upon. We have been taught to reprobate the danger of influence in the British government, without duly reflecting how far it was necessary to support a good government. We have taken up many ideas on trust, and at last, pleased with their own opinions, establish them as undoubted truths. Hume's opinion of the British constitution confirms the remark, that there is always a body of firm patriots, who often shake a corrupt administration. Take mankind as they are, and what are they governed by? Their passions. There may be in every government a few choice spirits, who may act from more worthy motives. One great error is that we suppose mankind more honest than they are. Our prevailing passions are ambition and interest; and it will ever be the duty of a wise government to avail itself of those passions, in order to make them subservient to the public good--for these ever induce us to action. Perhaps a few men in a state, may, from patriotic motives, or to display their talents, or to reap the advantage of public applause, step forward; but if we adopt the clause, we destroy the motive. I am therefore against all exclusions and refinements, except only in this case; that when a member takes his seat, he should vacate every other office. It is difficult to put any exclusive regulation into effect. We must in some degree submit to the inconvenience."--Yates, _Secret Proceedings_, etc., 155, 156. Col. Mason was for shutting the door at all events ag^{st} corruption. He enlarged on the venality and abuses in this particular in G. Britain: and alluded to the multiplicity of foreign Embassies by Cong^s. The disqualification he regarded as a corner stone in the fabric. Col. Hamilton, there are inconveniences on both sides. We must take man as we find him, and if we expect him to serve the public must interest his passions in doing so. A reliance on pure patriotism had been the source of many of our errors. He thought the remark of M^r Ghorum a just one. It was impossible to say what w^d be the effect in G. B. of such a reform as had been urged. It was known that one of the ablest politicians (M^r Hume) had pronounced all that influence on the side of the crown, which went under the name of corruption, an essential part of the weight which maintained the equilibrium of the Constitution. On M^r Ghorum's Motion for striking out "ineligibility," Mass^{ts} ay. Con^t no. N. Y. div^d. N. J. ay. P^a div^d. Del. div^d. Mar^d no. V^a no. N. C. ay. S. C. no. G^a ay. Adj^d. SATURDAY JUNE 23. IN CONVENTION The 3^d Resol: resumed. On Question yesterday postponed by S. Carol: for agreeing to the whole sentence "for allowing an adequate compensation to be paid out of the _Treasury of the U. States_" Mass^{ts} ay. Con^t no. N. Y. no. N. J. ay. Pen^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. divided. So the question was lost, & the sentence not inserted: Gen^l Pinkney moves to strike out the ineligibility of members of the 1^{st} branch to offices established "by a particular State." He argued from the inconveniency to which such a restriction would expose both the members of the 1^{st} branch, and the States wishing for their services; & from the smallness of the object to be attained by the restriction. It w^d seem from the ideas of some that we are erecting a Kingdom to be divided ag^{st} itself,[102] he disapproved such a fetter on the Legislature. [102] According to Yates Wilson followed Pinckney: "Mr. Wilson. I perceive that some gentlemen are of opinion to give a bias in favor of state governments. This question ought to stand on the same footing."--Yates, _Secret Proceedings_, etc., 157. M^r Sherman seconds the motion. It w^d seem that we are erecting a Kingdom at war with itself. The Legislature ought not to [be] fettered in such a case. On the question Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. M^d div^d. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Madison renewed his motion yesterday made & waved to render the members of the 1^{st} branch "ineligible during their term of service, & for one year after--to such offices only as should be established, or the emoluments thereof augmented, by the Legislature of the U. States during the time of their being members." He supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut ag^{st} them: it might properly be left open for the appoint^t of members to other offices as an encouragem^t to the Legislative service. M^r Alex: Martin[103] seconded the Motion. [103] "Mr. Martin was lately Governor of North Carolina, which office he filled with credit. He is a man of sense, and undoubtedly is a good politician, but he is not formed to shine in public debate, being no speaker. Mr. Martin was once a Colonel in the American Army, but proved unfit for the field. He is about 40 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 332. M^r Butler. The amend^t does not go far eno. & w^d be easily evaded. M^r Rutlidge, was for preserving the Legislature as pure as possible, by shutting the door against appointments of its own members to offices, which was one source of its corruption. M^r Mason.[104] The motion of my colleague is but a partial remedy for the evil. He appealed to him as a witness of the shameful partiality of the Legislature of Virginia to its own members. He enlarged on the abuses & corruption in the British Parliament, connected with the appointment of its members. He c^d not suppose that a sufficient number of Citizens could not be found who would be ready, without the inducement of eligibility to offices, to undertake the Legislative service. Genius & virtue it may be said, ought to be encouraged. Genius, for aught he knew, might, but that virtue should be encouraged by such a species of venality, was an idea, that at least had the merit of being new. [104] Yates gives Mason's speech more fully and a speech by Madison omitted here: "Mr. Mason. I differ from my colleague in his proposed amendment. Let me state the practice in the state where we came from. There, all officers are appointed by the legislature. Need I add, that many of their appointments are most shameful. Nor will the check proposed by this amendment be sufficient. It will soon cease to be any check at all. It is asserted that it will be very difficult to find men sufficiently qualified as legislators without the inducement of emolument. I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue--I should wish them never to come forward--But if we do not provide against corruption, our government will soon be at an end; nor would I wish to put a man of virtue in the way of temptation. Evasions and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people--and it will be refused. "Mr. Madison. My wish is that the national legislature be as uncorrupt as possible. I believe all public bodies are inclined, from various motives, to support its members; but it is not always done from the base motives of venality. Friendship, and a knowledge of the abilities of those with whom they associate, may produce it. If you bar the door against such attachments, you deprive the government of its greatest strength and support. Can you always rely on the patriotism of the members? If this be the only inducement, you will find a great indifferency in filling your legislative body. If we expect to call forth useful characters, we must hold out allurements; nor can any great inconveniency arise from such inducements. The legislative body must be the road to public honor; and the advantage will be greater to adopt my motion, than any possible inconvenience."--Yates, _Secret Proceedings_, etc., 158. M^r King remarked that we were refining too much in this business; and that the idea of preventing intrigue and solicitation of offices was chimerical. You say that no member shall himself be eligible to any office. Will this restrain him from availing himself of the same means which would gain appointments for himself, to gain them for his son, his brother, or any other object of his partiality. We were losing therefore the advantages on one side, without avoiding the evils on the other. M^r Wilson supported the motion. The proper cure he said for corruption in the Legislature was to take from it the power of appointing to offices. One branch of corruption would indeed remain, that of creating unnecessary offices, or granting unnecessary salaries, and for that the amendment would be a proper remedy. He animadverted on the impropriety of stigmatizing with the name of venality the laudable ambition of rising into the honorable offices of the Government; an ambition most likely to be felt in the early & most incorrupt period of life, & which all wise & free Gov^{ts} had deemed it sound policy, to cherish, not to check. The members of the Legislature have perhaps the hardest & least profitable task of any who engage in the service of the state. Ought this merit to be made a disqualification? M^r Sherman observed that the motion did not go far enough. It might be evaded by the creation of a new office, the translation to it of a person from another office, and the appointment of a member of the Legislature to the latter. A new Embassy might be established to a new Court, & an ambassador taken from another, in order to _create_ a vacancy for a favorite member. He admitted that inconveniences lay on both sides. He hoped there w^d be sufficient inducements to the public service without resorting to the prospect of desirable offices, and on the whole was rather ag^{st} the motion of M^r Madison. M^r Gerry thought there was great weight in the objection of M^r Sherman. He added as another objection ag^{st} admitting the eligibility of members in any case that it would produce intrigues of ambitious men for displacing proper officers, in order to create vacancies for themselves.[105] In answer to M^r King he observed that although members, if disqualified themselves might still intrigue & cabal for their sons, brothers &c., yet as their own interests would be dearer to them, than those of their nearest connections, it might be expected they would go greater lengths to promote it. [105] Yates gives Gerry's remarks: "This amendment is of great weight, and its consequences ought to be well considered. At the beginning of the war, we possessed more than Roman virtue. It appears to me it is now the reverse. We have more land and stock-jobbers than any place on earth. It appears to me that we have constantly endeavored to keep distinct the three great branches of government; but if we agree to this motion, it must be destroyed by admitting the legislators to share in the executive, or to be too much influenced by the executive, in looking up to them for offices."--Yates, _Secret Proceedings_, etc., 160. M^r Madison had been led to this motion as a middle ground between an eligibility in all cases, and an absolute disqualification. He admitted the probable abuses of an eligibility of the members, to offices particularly within the gift of the Legislature. He had witnessed the partiality of such bodies to their own members, as had been remarked of the Virginia Assembly by his colleague (Col. Mason). He appealed however to him, in turn to vouch another fact not less notorious in Virginia, that the backwardness of the best citizens to engage in the Legislative service gave but too great success to unfit characters. The question was not to be viewed on one side only. The advantages & disadvantages on both ought to be fairly compared. The objects to be aimed at were to fill all offices with the fittest characters, & to draw the wisest & most worthy citizens into the Legislative service. If on one hand, public bodies were partial to their own members; on the other they were as apt to be misled by taking characters on report, or the authority of patrons and dependents. All who had been concerned in the appointment of strangers on those recommendations must be sensible of this truth. Nor w^d the partialities of such Bodies be obviated by disqualifying their own members. Candidates for office would hover round the seat of Gov^t or be found among the residents there, and practise all the means of counting the favor of the members. A great proportion of the appointments made by the States were evidently brought about in this way. In the General Gov^t the evil must be still greater, the characters of distant states, being much less known throughout the U. States than those of the distant parts of the same State. The elections by Congress had generally turned on men living at the seat of the fed^l Gov^t or in its neighbourhood.--As to the next object, the impulse to the Legislative service, was evinced by experience to be in general too feeble with those best qualified for it. This inconveniency w^d also be more felt in the Nat^l Gov^t than in the State Gov^{ts} as the Sacrifices req^d from the distant members, w^d be much greater, and the pecuniary provisions, probably, more disproportionate. It w^d therefore be impolitic to add fresh objections to the Legislative service by an absolute disqualification of its members. The point in question was whether this would be an objection with the most capable citizens. Arguing from experience he concluded that it would. The Legislature of Virg^a would probably have been without many of its best members, if in that situation, they had been ineligible to Cong^s to the Gov^t & other honorable offices of the State. M^r Butler thought Characters fit for office w^d never be unknown. Col. Mason. If the members of the Legislature are disqualified, still the honors of the State will induce those who aspire to them to enter that service, as the field in which they can best display & improve their talents, & lay the train for their subsequent advancement. M^r Jenifer remarked that in Maryland, the Senators chosen for five years, c^d hold no other office & that this circumstance gained them the greatest confidence of the people. On the question for agreeing to the motion of M^r Madison, Mass^{ts} div^d. C^t ay. N. Y. no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r Sherman mov^d to insert the words "and incapable of holding" after the words "eligible to offices" w^{ch} was agreed to without opposition. The word "established" & the words "Nat^l Gov^t" were struck out of the Resolution 3^d. M^r Spaight called for a division of the question, in consequence of which it was so put, as that it turned in the first member of it, "on the ineligibility of members _during the term for which they were elected_"--whereon the States were, Mass^{ts} div^d. C^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no. On the 2^d member of the sentence extending ineligibility of members to one year after the term for which they were elected Col. Mason thought this essential to guard ag^{st} evasions by resignations, and stipulations for office to be filled at the expiration of the legislative term. M^r Gerry, had known such a case. M^r Hamilton. Evasions c^d not be prevented--as by proxies--by friends holding for a year, & then opening the way &c. M^r Rutlidge admitted the possibility of evasions, but was for contracting them as possible. Mass. no. C^t no. N. Y. ay. N. J. no. P^a div^d. Del. ay. Mar^d ay. V^a no. N. C. no. S. C. ay. Geo. no. Adj^d. MONDAY, JUNE 25. IN CONVENTION. Resolution 4. being taken up. M^r Pinkney spoke as follows--[106] The efficacy of the System will depend on this article. In order to form a right judgm^t in the case, it will be proper to examine the situation of this Country more accurately than it has yet been done. The people of the U. States are perhaps the most singular of any we are acquainted with. Among them there are fewer distinctions of fortune & less of rank, than among the inhabitants of any other nation. Every freeman has a right to the same protection & security; and a very moderate share of property entitles them to the possession of all the honors and privileges the Public can bestow: hence arises a greater equality, than is to be found among the people of any other Country, and an equality which is more likely to continue--I say this equality is likely to continue, because in a new Country, possessing immense tracts of uncultivated lands, where every temptation is offered to emigration & where industry must be rewarded with competency, there will be few poor, and few dependent--Every member of the Society almost, will enjoy an equal power of arriving at the supreme offices & consequently of directing the strength & sentiments of the whole Community. None will be excluded by birth, & few by fortune, from voting for proper persons to fill the offices of Government--the whole community will enjoy in the fullest sense that kind of political liberty which consists in the power the members of the State reserve to themselves, of arriving at the Public offices, or at least, of having votes in the nomination of those who fill them. [106] Pinckney furnished Madison with a copy of this speech which he transcribed, but apparently not with the whole of it, as Madison's note at the end indicates. The original Pinckney draft is among the Madison papers, and shows Madison's copying to have been accurate. If this State of things is true & the prospect of its continuing probable, it is perhaps not politic to endeavour too close an imitation of a Government calculated for a people whose situation is, & whose views ought to be extremely different. Much has been said of the Constitution of G. Britain. I will confess that I believe it to be the best Constitution in existence; but at the same time I am confident it is one that will not or cannot be introduced into this Country, for many centuries.--If it were proper to go here into a historical dissertation on the British Constitution, it might easily be shewn that the peculiar excellence, the distinguishing feature of that Governm^t cannot possibly be introduced into our System--that its balance between the Crown & the people cannot be made a part of our Constitution,--that we neither have nor can have the members to compose it, nor the rights, privileges & properties of so distinct a class of Citizens to guard,--that the materials for forming this balance or check do not exist, nor is there a necessity for having so permanent a part of our Legislative, until the Executive power is so constituted as to have something fixed & dangerous in its principle--By this I mean a sole, hereditary, though limited Executive. That we cannot have a proper body for forming a Legislative balance between the inordinate power of the Executive and the people, is evident from a review of the accidents & circumstances which gave rise to the peerage of Great Britain--I believe it is well ascertained that the parts which compose the British Constitution arose immediately from the forests of Germany; but the antiquity of the establishment of Nobility is by no means clearly defined. Some authors are of opinion that the dignity denoted by the titles of dux et comes, was derived from the old Roman to the German Empire; while others are of the opinion that they existed among the Germans long before the Romans were acquainted with them. The institution however of Nobility is immemorial among the Nations who may properly be termed the ancestors of Britain.--At the time they were summoned in England to become a part of the National Council, the circumstances which contributed to make them a Constituent part of that constitution, must be well known to all gentlemen who have had industry & curiosity enough to investigate the subject--The Nobles with their possessions & dependents composed a body permanent in their nature and formidable in point of power. They had a distinct interest both from the King and the people; an interest which could only be represented by themselves, and the guardianship could not be safely intrusted to others.--At the time they were originally called to form a part of the National Council, necessity perhaps as much as other cause, induced the Monarch to look up to them. It was necessary to demand the aid of his subjects in personal & pecuniary services. The power and possessions of the Nobility would not permit taxation from any Assembly of which they were not a part: & the blending the Deputies of the Commons with them, & thus forming what they called their parlerment was perhaps as much the effect of chance as of any thing else. The Commons were at that time compleatly subordinate to the nobles, whose consequence & influence seem to have been the only reasons for their superiority; a superiority so degrading to the Commons that in the first summons we find the peers are called upon to consult the commons to consent. From this time the peers have composed a part of the British Legislature, and notwithstanding their power and influence have diminished & those of the Commons have increased, yet still they have always formed an excellent balance ag^{st} either the encroachments of the Crown or the people. I have said that such a body cannot exist in this Country for ages, and that untill the situation of our people is exceedingly changed no necessity will exist for so permanent a part of the Legislature. To illustrate this I have remarked that the people of the United States are more equal in their circumstances than the people of any other Country--that they have very few rich men among them,--by rich men I mean those whose riches may have a dangerous influence, or such as are esteemed rich in Europe--perhaps there are not one hundred such on the Continent; that it is not probable this number will be greatly increased; that the genius of the people their mediocrity of situation & the prospects which are afforded their industry in a Country which must be a new one for centuries are unfavorable to the rapid distinction of ranks. The destruction of the right of primogeniture & the equal division of the property of Intestates will also have an effect to preserve this mediocrity; for laws invariably affect the manners of a people. On the other hand that vast extent of unpeopled territory which opens to the frugal & industrious a sure road to competency & independence will effectually prevent for a considerable time the increase of the poor or discontented, and be the means of preserving that equality of condition which so eminently distinguishes us. If equality is as I contend the leading feature of the U. States, where then are the riches & wealth whose representation & protection is the peculiar province of this Permanent body. Are they in the hands of the few who may be called rich; in the possession of less than a hundred citizens? Certainly not. They are in the great body of the people, among whom there are no men of wealth, and very few of real poverty.--Is it probable that a change will be created, and that a new order of men will arise? If under the British Government, for a century no such change was probable, I think it may be fairly concluded it will not take place while even the semblance of Republicanism remains.--How is this change to be effected? Where are the sources from whence it is to flow? From the landed interest? No. That is too unproductive & too much divided in most of the States. From the Monied interest? If such exists at present, little is to be apprehended from that source. Is it to spring from commerce? I believe it would be the first instance in which a nobility sprang from merchants. Besides, Sir, I apprehend that on this point the policy of the U. States has been much mistaken. We have unwisely considered ourselves as the inhabitants of an old instead of a new country. We have adopted the maxims of a State full of people & manufactures & established in credit. We have deserted our true interest, and instead of applying closely to those improvements in domestic policy which would have ensured the future importance of our commerce, we have rashly & prematurely engaged in schemes as extensive as they are imprudent. This however is an error which daily corrects itself & I have no doubt that a few more severe trials will convince us, that very different commercial principles ought to govern the conduct of these States. The people of this Country are not only very different from the inhabitants of any State we are acquainted with in the modern world; but I assert that their situation is distinct from either the people of Greece or Rome, or of any State we are acquainted with among the antients.--Can the orders introduced by the institution of Solon, can they be found in the United States? Can the military habits & manners of Sparta be resembled to our habits & manners? Are the distinction of Patrician & Plebeian known among us? Can the Helvetic or Belgic confederacies, or can the unwieldy, unmeaning body called the Germanic Empire, can they be said to possess either the same or a situation like ours? I apprehend not.--They are perfectly different, in their distinctions of rank, their Constitutions, their manners & their policy. Our true situation appears to me to be this,--a new extensive Country containing within itself the materials for forming a Government capable of extending to its Citizens all the blessings of Civil & religious liberty--capable of making them happy at home. This is the great end of Republican Establishments. We mistake the object of our Government, if we hope or wish that it is to make us respectable abroad. Conquest or superiority among other powers is not or ought not ever to be the object of republican Systems. If they are sufficiently active & energetic to rescue us from contempt & preserve our domestic happiness & security, it is all we can expect from them,--it is more than almost any other Government ensures to its citizens. I believe this observation will be found generally true:--that no two people are so exactly alike in their situation or circumstances as to admit the exercise of the same Government with equal benefit; that a system must be suited to the habits & genius of the People it is to govern, and must grow out of them. The people of the U. S. may be divided into three classes--_Professional men_ who must from their particular pursuits always have a considerable weight in the Government while it remains popular--_Commercial men_, who may or may not have weight as a wise or injudicious commercial policy is pursued.--If that commercial policy is pursued which I conceive to be the true one, the merchants of this Country will not or ought not for a considerable time to have much weight in the political scale.--The third is the _landed interest_, the owners and cultivators of the soil, who are and ought ever to be the governing spring in the system.--These three classes, however distinct in their pursuits are individually equal in the political scale, and may be easily proved to have but one interest. The dependence of each on the other is mutual. The merchant depends on the planter. Both must in private as well as public affairs be connected with the professional men; who in their turn must in some measure depend on them. Hence it is clear from this manifest connection, & the equality which I before stated exists, & must for the reasons then assign, continue, that after all there is one, but one great & equal body of Citizens composing the inhabitants of this Country among whom there are no distinctions of rank, and very few or none of fortune. For a people thus circumstanced are we then to form a Government & the question is what sort of Government is best suited to them. Will it be the British Gov^t? No. Why? Because G. Britain contains three orders of people distinct in their situation, their possessions & their principles.--These orders combined form the great body of the Nation. And as in national expences the wealth of the whole community must contribute, so ought each component part to be properly & duly represented.--No other combination of power could form this due representation, but the one that exists.--Neither the peers or the people could represent the royalty, nor could the Royalty & the people form a proper representation for the Peers.--Each therefore must of necessity be represented by itself, or the sign of itself; and this accidental mixture has certainly formed a Government admirably well balanced. But the U. States contain but one order that can be assimilated to the British Nation,--this is the order of Commons. They will not surely then attempt to form a Government consisting of three branches, two of which shall have nothing to represent. They will not have an Executive & Senate (hereditary) because the King & Lords of England are so. The same reasons do not exist and therefore the same provisions are not necessary. We must as has been observed suit our Governm^t to the people it is to direct. These are I believe as active, intelligent & susceptible of good Governm^t as any people in the world. The Confusion which has produced the present relaxed State is not owing to them. It is owing to the weakness & (defects) of a Gov^t incapable of combining the various interests it is intended to unite, and destitute of energy.--All that we have to do then is to distribute the powers of Gov^t in such a manner, and for such limited periods, as while it gives a proper degree of permanency to the Magistrate, will reserve to the people, the right of election they will not or ought not frequently to part with.--I am of opinion that this may easily be done; and that with some amendments the propositions before the Committee will fully answer this end. No position appears to me more true than this; that the General Gov^t cannot effectually exist without reserving to the States the possession of their local rights. They are the instruments upon which the Union must frequently depend for the support & execution of their powers, however immediately operating upon the people, and not upon the States. Much has been said about the propriety of abolishing the distinction of State Governments, & having but one general System. Suffer me for a moment to examine this question.[107] [107] The residue of this speech was not furnished, like the above, by Mr. Pinckney.--Madison's Note. Yates' report of the speech is meagre. The closing paragraph, apparently the part lacking in Madison's report, is: "While we were dependent on the crown of Great Britain, it was in contemplation to form the whole into one; but it was found impracticable. No legislature could make good laws for the whole, nor can it now be done. It would necessarily place the power in the hands of the few nearest the seat of government. State governments must therefore remain, if you mean to prevent confusion. The general negative powers will support the general government. Upon these considerations, I am led to form the second branch differently from the report. These powers are important, and the number not too large, upon the principle of proportion. I have considered the subject with great attention; and I propose this plan (reads it), and if no better plan is proposed, I will then move its adoption."--Yates, _Secret Proceedings_, etc., 163. The mode of constituting the 2^d branch being under consideration. The word "national" was struck out, and "United States" inserted. M^r Ghorum, inclined to a compromise as to the rule of proportion. He thought there was some weight in the objections of the small States. If V^a should have 16. votes & Del^{re} with several other States together 16, those from Virg^a would be more likely to unite than the others, and would therefore have an undue influence. This remark was applicable not only to States, but to Counties or other districts of the same State. Accordingly the Constitution of Mass^{ts} had provided that the representatives of the larger districts should not be in an exact ratio to their numbers, and experience he thought had shewn the provision to be expedient. M^r Read. The States have heretofore been in a sort of partnership. They ought to adjust their old affairs before they open a new account. He brought into view the appropriation of the co[~m]on interest in the Western lands, to the use of particular States. Let justice be done on this head; let the fund be applied fairly & equally to the discharge of the general debt, and the smaller States who had been injured; would listen then perhaps to those ideas of just representation which had been held out. M^r Ghorum, did not see how the Convention could interpose in the case. Errors he allowed had been committed on the subject. But Cong^s were now using their endeavours to rectify them. The best remedy would be such a Government as would have vigor enough to do justice throughout. This was certainly the best chance that could be afforded to the smaller States. M^r Wilson, the question is shall the members of the 2^d branch be chosen by the Legislatures of the States? When he considered the amazing extent of Country--the immense population which is to fill it, the influence which the Gov^t we are to form will have, not only on the present generation of our people & their multiplied posterity, but on the whole Globe, he was lost in the magnitude of the object. The project of Henry the 4^{th} & his Statesmen was but the picture in miniature of the great portrait to be exhibited. He was opposed to an election by the State Legislatures. In explaining his reasons it was necessary to observe the twofold relation in which the people would stand, 1. as Citizens of the Gen^l Gov^t 2. as Citizens of their particular State. The Gen^l Gov^t was meant for them in the first capacity: the State Gov^{ts} in the second. Both Gov^{ts} were derived from the people--both meant for the people--both therefore ought to be regulated on the same principles. The same train of ideas which belonged to the relation of the Citizens to their State Gov^{ts} were applicable to their relation to the Gen^l Gov^t and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of the State Gov^{ts}. With respect to the province & object of the Gen^l Gov^t they should be considered as having no existence. The election of the 2^d branch by the Legislatures, will introduce & cherish local interests & local prejudices. The Gen^l Gov^t is not an assemblage of States, but of individuals for certain political purposes--it is not meant for the States, but for the individuals composing them; the _individuals_ therefore not the _States_, ought to be represented in it: A proportion in this representation can be preserved in the 2^d as well as in the 1^{st} branch; and the election can be made by electors chosen by the people for that purpose. He moved an amendment to that effect which was not seconded. M^r Elseworth saw no reason for departing from the mode contained in the Report. Whoever chooses the member, he will be a Citizen of the State he is to represent & will feel the same spirit & act the same part whether he be appointed by the people or the Legislature. Every State has its particular views & prejudices, which will find their way into the general Councils, through whatever channel they may flow. Wisdom was one of the characteristics which it was in contemplation to give the second branch. Would not more of it issue from the Legislatures; than from an immediate election by the people. He urged the necessity of maintaining the existence, & agency of the States. Without their co-operation it would be impossible to support a Republican Gov^t over so great an extent of Country. An army could scarcely render it practicable. The largest States are the worst Governed. Virg^a is obliged to acknowledge her incapacity to extend her Gov^t to Kentuckey. Mass^{ts} cannot keep the peace one hundred miles from her capitol and is now forming an army for its support. How long Pen^a may be free from a like situation cannot be foreseen. If the principles & materials of our Gov^t are not adequate to the extent of these single States; how can it be imagined that they can support a single Gov^t throughout the U. States. The only chance of supporting a Gen^l Gov^t lies in grafting it on that of the individual States. Doc^r Johnson urged the necessity of preserving the State Gov^{ts} which would be at the mercy of the Gen^l Gov^t on M^r Wilson's plan. M^r Madison thought it w^d obviate difficulty if the present resol: were postponed, & the 8{th} taken up, which is to fix the right of suffrage in the 2^d branch. Doc^r Williamson professed himself a friend to such a system as would secure the existence of the State Gov^{ts}. The happiness of the people depended on it. He was at a loss to give his vote as to the Senate untill he knew the number of its members. In order to ascertain this, he moved to insert these words after "2^d branch of the Nat^l Legislature"--"who shall bear such proportion to the n^o of the 1^{st} branch as 1 to ----." He was not seconded. M^r Mason. It has been agreed on all hands that an efficient Gov^t is necessary that to render it such it ought to have the faculty of self defence, that to render its different branches effectual each of them ought to have the same power of self defence. He did not wonder that such an agreement should have prevailed in these points. He only wondered that there should be any disagreement about the necessity of allowing the State Gov^{ts} the same self-defence. If they are to be preserved as he conceived to be essential, they certainly ought to have this power. And the only mode left of giving it to them, was by allowing them to appoint the 2^d branch of the Nat^l Legislature. M^r Butler observing that we were put to difficulties at every step by the uncertainty whether an equality or a ratio of representation w^d prevail finally in the 2^d branch, moved to postpone the 4^{th} Resol: & to proceed to the Resol: on that point. M^r Madison seconded him. On the question Mass^{ts} no. Con^t no. N. Y. ay. N. J. no. P^a no. Del. no. M{d.} no. V^a ay. N. C. no. S. C. ay. Geo. ay. On a question to postpone the 4 and take up the 7 Resol: ays, Mary^d V^a N. C. S. C. Geo;--Noes, Mass. C^t N. Y. N. J. P^a Del: On the question to agree "that the members of the 2^d branch be chosen by the indiv^l Legislatures" Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.[108] [108] Madison's Note: It must be kept in view that the largest States particularly Pennsylvania & Virginia always considered the choice of the 2^d Branch by the State Legislatures as opposed to a proportional representation to which they were attached as a fundamental principle of just Government. The smaller States who had opposite views, were reinforced by the members from the large States most anxious to secure the importance of the State Governments. On a question on the clause requiring the age of 30 years at least,--it was agreed to unanimously: On a question to strike out the words, "sufficient to ensure their independency" after the word "term" it was agreed to. That the 2^d branch hold their offices for a term of seven years, considered. M^r Ghorum suggests a term of "4 years," 1/4 to be elected every year. M^r Randolph, supported the idea of rotation, as favorable to the wisdom & stability of the Corps, which might possibly be always sitting, and aiding the Executive. And moves after "7 years," to add, "to go out in fixt proportion" which was agreed to. M^r Williamson suggests "6 years," as more convenient for Rotation than 7 years. M^r Sherman seconds him. M^r Reed proposed that they s^d hold their offices "during good behaviour." Mr. R. Morris seconds him. Gen^l Pinkney, proposed "4 years." A longer term w^d fix them at the seat of Gov^t. They w^d acquire an interest there, perhaps transfer their property & lose sight of the States they represent. Under these circumstances the distant States w^d labour under great disadvantages.[109] [109] According to Yates, Madison followed Pinckney: "Mr. Madison. We are proceeding in the same manner that was done when the Confederation was first formed. Its original draft was excellent, but in its progress and completion it became so insufficient as to give rise to the present Convention. By the vote already taken, will not the temper of the state legislatures transfuse itself into the Senate? Do we create a free government?"--Yates, _Secret Proceedings_, etc., 168. M^r Sherman moved to strike out "7 years" in order to take questions on the several propositions. On the question to strike out "seven" Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. no. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay. On the question to insert "6 years", which failed 5 St^s being ay. 5 no, & 1 divided Mass^{ts} no. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. no. Geo. no. On a motion to adjourn, the votes were 5 for 5 ag^{st} it & 1 divided,--Con. N. J. P^a Del. V^a ay. Mass^{ts} N. Y. N. C. S. C. Geo: no. Mary^d divided. On the question for "5 years" it was lost. Mass^{ts} no. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. no. Geo. no. Adj^d. TUESDAY, JUNE 26. IN CONVENTION The duration of the 2^d branch under consideration. M^r Ghorum moved to fill the blank with "six years," one third of the members to go out every second year. M^r Wilson 2^{ded} the motion. Gen^l Pinkney opposed six years in favor of four years. The States he said had different interests. Those of the Southern, and of S. Carolina in particular were different from the Northern. If the Senators should be appointed for a long term, they w^d settle in the State where they exercised their functions; and would in a little time be rather the representatives of that than of the State appoint^g them. M^r Reed mov^d that the term be nine years. This w^d admit of a very convenient rotation, one third going out triennially. He w^d still prefer "during good behaviour," but being little supported in that idea, he was willing to take the longest term that could be obtained. M^r Broome 2^{ded} the motion. M^r Madison. In order to judge of the form to be given to this institution, it will be proper to take a view of the ends to be served by it. These were first to protect the people ag^{st} their rulers; secondly to protect the people ag^{st} the transient impressions into which they themselves might be led. A people deliberating in a temperate moment, and with the experience of other nations before them, on the plan of Gov^t most likely to secure their happiness, would first be aware, that those charg^d with the public happiness might betray their trust. An obvious precaution ag^{st} this danger w^d be to divide the trust between different bodies of men, who might watch & check each other. In this they w^d be governed by the same prudence which has prevailed in organizing the subordinate departments of Gov^t, where all business liable to abuses is made to pass thro' separate hands, the one being a check on the other. It w^d next occur to such people, that they themselves were liable to temporary errors, thro' want of information as to their true interest, and that men chosen for a short term, & employed but a small portion of that in public affairs, might err from the same cause. This reflection w^d naturally suggest that the Gov^t be so constituted as that one of its branches might have an opp^y of acquiring a competent knowledge of the public interests. Another reflection equally becoming a people on such an occasion, w^d be that they themselves, as well as a numerous body of Representatives, were liable to err also, from fickleness and passion. A necessary fence ag^{st} this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose ag^{st} impetuous councils. It ought finally to occur to a people deliberating on a Gov^t for themselves, that as different interests necessarily result from the liberty meant to be secured, the major interest might under sudden impulses be tempted to commit injustice on the minority. In all civilized Countries the people fall into different classes hav^g a real or supposed difference of interests. There will be creditors & debtors; farmers, merch^{ts} & manufacturers. There will be particularly the distinction of rich & poor. It was true as had been observ^d (by M^r Pinkney) we had not among us those hereditary distinctions, of rank which were a great source of the contests in the ancient Gov^{ts} as well as the modern States of Europe, nor those extremes of wealth or poverty which characterize the latter. We cannot however be regarded even at this time, as one homogeneous mass, in which every thing that affects a part will affect in the same manner the whole. In framing a system which we wish to last for ages, we sh^d not lose sight of the changes which ages will produce. An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this Country, but symptoms, of a levelling spirit, as we have understood, have sufficiently appeared in certain quarters, to give notice of the future danger. How is this danger to be guarded ag^{st} on the republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded ag^{st}? Among other means by the establishment of a body in the Gov^t sufficiently respectable for its wisdom & virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale. Such being the objects of the second branch in the proposed Gov^t he thought a considerable duration ought to be given to it. He did not conceive that the term of nine years could threaten any real danger; but in pursuing his particular ideas on the subject, he should require that the long term allowed to the 2^d branch should not commence till such a period of life, as would render a perpetual disqualification to be re-elected little inconvenient either in a public or private view. He observed that as it was more than probable we were now digesting a plan which in its operation w^d decide for ever the fate of Republican Gov^t we ought not only to provide every guard to liberty that its preservation c^d require, but be equally careful to supply the defects which our own experience had particularly pointed out. M^r Sherman. Gov^t is instituted for those who live under it. It ought therefore to be so constituted as not to be dangerous to their liberties. The more permanency it has the worse if it be a bad Gov^t. Frequent elections are necessary to preserve the good behavior of rulers. They also tend to give permanency to the Government, by preserving that good behavior, because it ensures their re-election. In Connecticut elections have been very frequent, yet great stability & uniformity both as to persons & measures have been experienced from its original establishm^t to the present time; a period of more than a 130 years. He wished to have provision made for steadiness & wisdom in the system to be adopted; but he thought six or four years would be sufficient. He sh^d be content with either. M^r Read wished it to be considered by the small States that it was their interest that we should become one people as much as possible; that State attachments sh^d be extinguished as much as possible; that the Senate, sh^d be so constituted as to have the feelings of Citizens of the whole. M^r Hamilton. He did not mean to enter particularly into the subject. He concurred with M^r Madison in thinking we were now to decide forever the fate of Republican Government; and that if we did not give to that form due stability and wisdom, it would be disgraced & lost among ourselves, disgraced & lost to mankind forever. He acknowledged himself not to think favorably of Republican Government; but addressed his remarks to those who did think favorably of it, in order to prevail on them to tone their Government as high as possible. He professed himself to be as zealous an advocate for liberty as any man whatever, and trusted he should be as willing a martyr to it though he differed as to the form in which it was most eligible.--He concurred also in the general observations of (M^r Madison) on the subject, which might be supported by others if it were necessary. It was certainly true that nothing like an equality of property existed; that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself. This inequality of property constituted the great & fundamental distinction in Society. When the Tribunitial power had levelled the boundary between the _patricians_ & _plebeians_, what followed? The distinction between rich & poor was substituted. He meant not however to enlarge on the subject. He rose principally to remark that (M^r Sherman) seemed not to recollect that one branch of the proposed Gov^t was so formed, as to render it particularly the guardians of the poorer orders of Citizens; nor to have adverted to the true causes of the stability which had been exemplified in Con^t. Under the British system as well as the federal, many of the great powers appertaining to Gov^t particularly all those relating to foreign Nations were not in the hands of the Gov^t there. Their internal affairs also were extremely simple, owing to sundry causes many of which were peculiar to that Country. Of late the Governm^t had entirely given way to the people, and had in fact suspended many of its ordinary functions in order to prevent those turbulent scenes which had appeared elsewhere. He asks M^r S. whether the State at this time dare impose & collect a tax on y^e people? To these causes & not to the frequency of elections, the effect as far as it existed ought to be chiefly ascribed. M^r Gerry, wished we could be united in our ideas concerning a permanent Gov^t. All aim at the same end, but there are great differences as to the means. One circumstance He thought should be carefully attended to. There was not 1/1000 part of our fellow citizens who were not ag^{st} every approach towards Monarchy. Will they ever agree to a plan which seems to make such an approach. The Convention ought to be extremely cautious in what they hold out to the people. Whatever plan may be proposed will be espoused with warmth by many out of respect to the quarter it proceeds from as well as from an approbation of the plan itself. And if the plan should be of such a nature as to rouse a violent opposition, it is easy to foresee that discord & confusion will ensue, and it is even possible that we may become a prey to foreign powers. He did not deny the position of M^r Madison, that the majority will generally violate justice when they have an interest in so doing: But did not think there was any such temptation in this Country. Our situation was different from that of G. Britain; and the great body of lands yet to be parcelled out & settled would very much prolong the difference. Notwithstanding the symptoms of injustice which had marked many of our public Councils, they had not proceeded so far as not to leave hopes, that there would be a sufficient sense of justice & virtue for the purpose of Gov^t. He admitted the evils arising from a frequency of elections; and would agree to give the Senate a duration of four or five years. A longer term would defeat itself. It never would be adopted by the people. M^r Wilson did not mean to repeat what had fallen from others, but w^d add an observation or two which he believed had not yet been suggested. Every nation may be regarded in two relations 1 to its own citizens. 2 to foreign nations. It is therefore not only liable to anarchy & tyranny within, but has wars to avoid & treaties to obtain from abroad. The Senate will probably be the depository of the powers concerning the latter objects. It ought therefore to be made respectable in the eyes of foreign Nations. The true reason why G. Britain has not yet listened to a commercial treaty with us has been, because she had no confidence in the stability or efficacy of our Government. 9 years with a rotation, will provide these desirable qualities; and give our Gov^t an advantage in this respect over Monarchy itself. In a Monarchy much must always depend on the temper of the man. In such a body, the personal character will be lost in the political. He w^d add another observation. The popular objection ag^{st} appointing any public body for a long term was that it might by gradual encroachments prolong itself first into a body for life, and finally become a hereditary one. It would be a satisfactory answer to this objection that as 1/3 would go out triennially, there would be always three divisions holding their places for unequal times, and consequently acting under the influence of different views, and different impulses.--On the question for 9 years, 1/3 to go out triennially, Mass^{ts} no. Con^t, no. N. Y. no. N. J. no. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. On the question for 6 years,[110] 1/3 to go out biennially Mass^{ts} ay. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no. [110] Yates has the question on _five_ years, but this is obviously a mistake.--Yates, _Secret Proceedings_, etc., 172. "To receive fixt stipends by which they may be compensated for their services" considered. General Pinkney proposed "that no Salary should be allowed." As this (the Senatorial) branch was meant to represent the wealth of the Country, it ought to be composed of persons of wealth; and if no allowance was to be made the wealthy alone would undertake the service. He moved to strike out the clause. Doct^r Franklin seconded the motion. He wished the Convention to stand fair with the people. There were in it a number of young men who would probably be of the Senate. If lucrative appointments should be recommended we might be chargeable with having carved out places for ourselves. On the question,--Mas^{ts} Connecticut[111] P^a M^d S. Carolina ay. N. Y. N. J. Del. Virg^a N. C. Geo. no. [111] Quer. whether Connecticut should not be, no. & Delaware, ay.--Madison's Note. M^r Williamson moved to change the expression into these words to wit "to receive a compensation for the devotion of their time to the public service." The motion was seconded by M^r Elseworth, and agreed to by all the States except S. Carol^a. It seemed to be meant only to get rid of the word "fixt" and leave greater room for modifying the provision on this point. M^r Elseworth moved to strike out "to be paid out of the Nat^l Treasury" and insert "to be paid by their respective States." If the Senate was meant to strengthen the Gov^t it ought to have the confidence of the States. The States will have an interest in keeping up a representation, and will make such provision for supporting the members as will ensure their attendance. M^r Madison considered this as a departure from a fundamental principle, and subverting the end intended by allowing the Senate a duration of 6 years. They would if this motion should be agreed to, hold their places during pleasure; during the pleasure of the State Legislatures. One great end of the institution was, that being a firm, wise and impartial body, it might not only give stability to the Gen^l Gov^t in its operations on individuals, but hold an even balance among different States. The motion would make the Senate like Congress, the mere Agents & Advocates of State interests & views, instead of being the impartial umpires & Guardians of justice and the general Good. Cong^s had lately by the establishment of a board with full powers to decide on the mutual claims between the U. States & the individual States, fairly acknowledged themselves to be unfit for discharging this part of the business referred to them by the Confederation. M^r Dayton[112] considered the payment of the Senate by the States as fatal to their independence, he was decided for paying them out of the Nat^l Treasury. [112] "Cap. Dayton is a young Gentleman of talents, with ambition to exert them. He possesses a good education and some reading; he speaks well, and seems desirous of improving himself in Oratory. There is an impetuosity in his temper that is injurious to him; but there is an honest rectitude about him that makes him a valuable Member of Society, and secures to him the esteem of all good Men. He is about 30 years old, served with me a Brother Aid to General Sullivan in the Western Expedition of '79."--Pierce's Notes, _Am. Hist. Rev._, iii., 328. On the question for payment of the Senate to be left to the States as moved by M^r Elseworth. Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. Col. Mason. He did not rise to make any motion, but to hint an idea which seemed to be proper for consideration. One important object in constituting the Senate was to secure the rights of property. To give them weight & firmness for this purpose, a considerable duration in office was thought necess[~a]y. But a longer term than 6 years, would be of no avail in this respect, if needy persons should be appointed. He suggested therefore the propriety of annexing to the office a qualification of property. He thought this would be very practicable; as the rules of taxation would supply a scale for measuring the degree of wealth possessed by every man. A question was then taken whether the words "to be paid out of the public treasury," should stand. Mass^{ts} ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no. M^r Butler moved to strike out the ineligibility of Senators to _State offices_. Mr. Williamson seconded the motion.[113] [113] According to Yates, before Wilson spoke: "Mr. Madison. Congress heretofore depended on state interests; we are now going to pursue the same plan."--Yates, _Secret Proceedings_, etc., 173. M^r Wilson remarked the additional dependance this w^d create in the Senators on the States. The longer the time he observed allotted to the Officer, the more compleat will be the dependance if it exists at all.[114] [114] After Wilson, according to Yates: "Mr. Butler. This second branch I consider as the aristocratic part of our government; and they must be controlled by the states, or they will be too independent."--Yates, _Secret Proceedings_, etc., 173. Gen^l Pinkney was for making the States as much as could be conveniently done, a part of the Gen^l Gov^t. If the Senate was to be appointed by the States, it ought in pursuance of the same idea to be paid by the States: and the States ought not to be barred from the opportunity of calling members of it into offices at home. Such a restriction would also discourage the ablest men from going into the Senate. M^r Williamson moved a resolution so penned as to admit of the two following questions. 1. whether the members of the Senate should be ineligible to & incapable of holding offices _under the U. States_ 2. Whether &c. under the _particular States_. On the Question to postpone in order to consider Williamson's Resol^n Mas^{ts} no. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Gerry & M^r Madison move to add to M^r Williamson's 1. Quest: "and for 1 year thereafter." On this amend^t Mas^{ts} no. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no. On M^r Will[iam]son's 1 Question as amend^{ed} vz, inelig: & incapable &c. &c. for 1 year &c. ag^d to un[~a]mously. On the 2. question as to ineligibility &c. to State offices, Mass. ay. C^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. The 5. Resol: "that each branch have the right of originating acts," was agreed to nem. con. Adj^d. WEDNESDAY JUNE 27. IN CONVENTION. M^r Rutlidge moved to postpone the 6^{th} Resolution, defining the powers of Cong^s in order to take up the 7 & 8 which involved the most fundamental points; the rules of suffrage in the 2 branches which was agreed to nem. con. A question being proposed on the Resol: 7; declaring that the suffrage in the first branch sh^d be according to an equitable ratio. M^r L. Martin[115] contended at great length and with great eagerness that the General Gov^t was meant merely to preserve the State Govern^{ts} not to govern individuals: that its powers ought to be kept within narrow limits: that if too little power was given to it, more might be added; but that if too much, it could never be resumed: that individuals as such have little to do but with their own States; that the Gen^l Gov^t has no more to apprehend from the States composing the Union, while it pursues proper measures, that Gov^t over individuals has to apprehend from its subjects: that to resort to the Citizens at large for their sanction to a new Govern^t will be throwing them back into a state of Nature; that the dissolution of the State Gov^{ts} is involved in the nature of the process; that the people have no right to do this without the consent of those to whom they have delegated their power for State purposes: through their tongues only they can speak, through their ears, only can hear: that the States have shewn a good disposition to comply with the Acts of Cong^s, weak, contemptibly weak as that body has been; and have failed through inability alone to comply: that the heaviness of the private debts, and the waste of property during the war, were the chief causes of this inability; that he did not conceive the instances mentioned by M^r Madison of compacts between V^a & M^d between P^a & N. J. or of troops raised by Mass^{ts} for defence against the Rebels, to be violations of the articles of confederation--that an equal vote in each State was essential to the federal idea, and was founded in justice & freedom, not merely in policy: that tho' the States may give up this right of sovereignty, yet they had not, and ought not: that the States like individuals were in a State of nature equally sovereign & free. In order to prove that individuals in a State of Nature are equally free & independent he read passages from Locke, Vattel, Lord Summers--Priestly. To prove that the case is the same with States till they surrender their equal sovereignty, he read other passages in Locke & Vattel, and also Rutherford: that the States being equal cannot treat or confederate so as to give up an equality of votes without giving up their liberty: that the propositions on the table were a system of slavery for 10 States: that as V^a Mass^{ts} & P^a have 42/90 of the votes they can do as they please without a miraculous Union of the other ten: that they will have nothing to do, but to gain over one of the ten to make them compleat masters of the rest; that they can then appoint an Execut^e & Judiciary & legislate for them as they please: that there was & would continue a natural predilection & partiality in men for their own States; that the States, particularly the smaller, would never allow a negative to be exercised over their laws: that no State in Ratifying the Confederation had objected to the equality of votes; that the complaints at present run not ag^{st} this equality but the want of power: that 16 members from V^a would be more likely to act in concert than a like number formed of members from different States: that instead of a junction of the small States as a remedy, he thought a division of the large States would be more eligible.--This was the substance of a speech which was continued more than three hours. He was too much exhausted he said to finish his remarks, and reminded the House that he should tomorrow, resume them. [115] "Mr. Martin, the Attorney-General from Maryland, spoke on this subject upwards of three hours. As his arguments were too diffuse, and in many instances desultory, it was not possible to trace him through the whole, or to methodize his ideas into a systematic or argumentative arrangement."--Yates, _Secret Proceedings_, etc., 174. Adj^d. THURSDAY JUNE 28TH. IN CONVENTION M^r L. Martin resumed his discourse,[116] contending that the Gen^l Gov^t ought to be formed for the States, not for individuals: that if the States were to have votes in proportion to their numbers of people, it would be the same thing whether their representatives were chosen by the Legislatures or the people; the smaller States would be equally enslaved; that if the large States have the same interest with the smaller as was urged, there could be no danger in giving them an equal vote; they would not injure themselves, and they could not injure the large ones on that supposition without injuring themselves and if the interests, were not the same, the inequality of suffrage w^d be dangerous to the smaller States: that it will be in vain to propose any plan offensive to the rulers of the States, whose influence over the people will certainly prevent their adopting it: that the large States were weak at present in proportion to their extent; & could only be made formidable to the small ones, by the weight of their votes: that in case a dissolution of the Union should take place, the small States would have nothing to fear from their power; that if in such a case the three great States should league themselves together, the other ten could do so too; & that he had rather see partial Confederacies take place, than the plan on the table. This was the substance of the residue of his discourse which was delivered with much diffuseness & considerable vehemence. [116] Yates gives Martin's speech more fully: "On federal grounds, it is said, that a minority will govern a majority--but on the Virginia plan a minority would tax a majority. In a federal government, a majority of states must and ought to tax. In the local government of states, counties may be unequal--still numbers, not property, govern. What is the government now forming, over states or persons? As to the latter, their rights cannot be the object of a general government. These are already secured by their guardians, the state governments. The general government is therefore intended only to protect and guard the rights of the states as states. "This general government, I believe, is the first upon earth which gives checks against democracies or aristocracies. The only necessary check in a general government ought to be a restraint to prevent its absorbing the powers of the state governments. Representation on federal principles can only flow from state societies. Representation and taxation are ever inseparable--not according to the quantum of property, but the quantum of freedom. "Will the representatives of a state forget state interests? The mode of election cannot change it. These prejudices cannot be eradicated--Your general government cannot be just or equal upon the Virginia plan, unless you abolish state interests. If this cannot be done, you must go back to principles purely federal. "On this latter ground, the state legislatures and their constituents will have no interests to pursue different from the general government, and both will be interested to support each other. Under these ideas can it be expected that the people can approve the Virginia plan? But it is said, the people, not the state legislatures, will be called upon for approbation--with an evident design to separate the interests of the governors from the governed. What must be the consequence? Anarchy and confusion. We lose the ideas of the powers with which we are intrusted. The legislatures must approve. By them it must, on your own plan, be laid before the people. How will such a government, over so many great states, operate. Wherever new settlements have been formed in large states, they immediately want to shake off their independency. Why? Because the government is too remote for their good. The people want it nearer home. "The basis of all ancient and modern confederacies is the freedom and the independency of the states composing it. The states forming the amphictionic council were equal, though Lacedemon, one of the greatest states, attempted the exclusion of three of the lesser states from this right. The plan reported, it is true, only intends to diminish those rights, not to annihilate them--It was the ambition and power of the great Grecian states which at last ruined this respectable council. The states as societies are ever respectful. Has Holland or Switzerland ever complained of the equality of the states which compose their respective confederacies? Bern and Zurich are larger than the remaining eleven cantons--so of many of the states of Germany; and yet their governments are not complained of. Bern alone might usurp the whole power of the Helvetic confederacy, but she is contented still with being equal. "The admission of the larger states into the confederation, on the principle of equality, is dangerous--But on the Virginia system it is ruinous and destructive. Still it is the true interest of all the states to confederate--It is their joint efforts which must protect and secure us from foreign danger, and give us peace and harmony at home. "(Here Mr. Martin entered into a detail of the comparative powers of each state, and stated their probable weakness and strength.) "At the beginning of our troubles with Great Britain, the smaller states were attempted to be cajoled to submit to the views of that nation, lest the larger states should usurp their rights. We then answered them--your present plan is slavery, which on the remote prospect of a distant evil, we will not submit to. "I would rather confederate with any single state, than submit to the Virginia plan. But we are already confederated, and no power on earth can dissolve it but by the consent of _all_ the contracting powers--and four states, on this floor, have already declared their opposition to annihilate it. Is the old confederation dissolved, because some of the states wish a new confederation?"--Yates, _Secret Proceedings_, etc., 177. M^r Lansing & M^r Dayton moved to strike out "not," so that the 7 art. might read that the rights of suffrage in the 1^{st} branch ought to be according to the rule established by the Confederation." M^r Dayton expressed great anxiety that the question might not be put till tomorrow; Govern^r Livingston being kept away by indisposition, and the representation of N. Jersey thereby suspended. M^r Williamson, thought that if any political truth could be grounded on mathematical demonstration, it was that if the States were equally sovereign now, and parted with equal proportions of sovereignty, that they would remain equally sovereign. He could not comprehend how the smaller States would be injured in the case, and wished some Gentleman would vouchsafe a solution of it. He observed that the small States, if they had a plurality of votes would have an interest in throwing the burdens off their own shoulders on those of the large ones. He begged that the expected addition of new States from the Westward might be kept in view. They would be small States, they would be poor States, they would be unable to pay in proportion to their numbers; their distance from market rendering the produce of their labour less valuable; they would consequently be tempted to combine for the purpose of laying burdens on com[~m]erce & consumption which would fall with greatest weight on the old States. M^r Madison, s^d he was much disposed to concur in any expedient not inconsistent with fundamental principles, that could remove the difficulty concerning the rule of representation. But he could neither be convinced that the rule contended for was just, nor necessary for the safety of the small States ag^{st} the large States. That it was not just, had been conceded by M^r Breerly & M^r Paterson themselves. The expedient proposed by them was a new partition of the territory of the U. States. The fallacy of the reasoning drawn from the equality of Sovereign States in the formation of compacts, lay in confounding together mere Treaties, in which were specified certain duties to which the parties were to be bound, and certain rules by which their subjects were to be reciprocally governed in their intercourse, with a compact by which an authority was created paramount to the parties, & making laws for the government of them. If France, England & Spain were to enter into a Treaty for the regulation of commerce &c. with the Prince of Monacho & 4 or 5 other of the smallest sovereigns of Europe, they would not hesitate to treat as equals, and to make the regulations perfectly reciprocal. W^d the case be the same, if a Council were to be formed of deputies from each with authority and discretion, to raise money, levy troops, determine the value of coin &c.? Would 30 or 40, million of people submit their fortunes into the hands of a few thousands? If they did it would only prove that they expected more from the terror of their superior force, than they feared from the selfishness of their feeble associates. Why are Counties of the Same States represented in proportion to their numbers? Is it because the representatives are chosen by the people themselves? So will be the representatives in the Nation^l Legislature. Is it because, the larger have more at stake than the smaller? The Case will be the same with the larger & smaller States. Is it because the laws are to operate immediately on their persons & properties? The same is the case in some degree as the articles of confederation stand; the same will be the case in a far greater degree, under the plan proposed to be substituted. In the cases of captures, of piracies, and of offences in a federal army, the property & persons of individuals depend on the laws of Cong^s. By the plan proposed a compleat power of taxation, the highest prerogative of supremacy is proposed to be vested in the National Gov^t. Many other powers are added which assimilate it to the Gov^t of individual States. The negative proposed on the State laws, will make it an essential branch of the State Legislatures & of course will require that it should be exercised by a body established on like principles with the other branches of those Legislatures.--That it is not necess[~a]y to secure the small States ag^{st} the large ones he conceived to be equally obvious: Was a combination of the large ones dreaded? This must arise either from some interest common to V^a Mass^{ts} & P^a & distinguishing them from the other States, or from the mere circumstance of similarity of size. Did any such common interest exist? In point of situation they could not have been more effectually separated from each other by the most jealous citizen of the most jealous State. In point of manners, Religion, and the other circumstances which sometimes beget affection between different communities, they were not more assimilated than the other States--In point of the staple productions they were as dissimilar as any three other States in the Union. The Staple of Mass^{ts} was _fish_, of P^a _flower_, of V^a _Tob^o_. Was a Combination to be apprehended from the mere circumstance of equality of size? Experience suggested no such danger. The journals of Cong^s did not present any peculiar association of these States in the votes recorded. It had never been seen that different Counties in the same State, conformable in extent, but disagreeing in other circumstances, betrayed a propensity to such combinations. Experience rather taught a contrary lesson. Among individuals of superior eminence & weight in Society, rivalships were much more frequent than coalitions. Among independent Nations, pre-eminent over their neighbours, the same remark was verified. Carthage & Rome tore one another to pieces instead of uniting their forces to devour the weaker nations of the Earth. The Houses of Austria & France were hostile as long as they remained the greatest powers of Europe. England & France have succeeded to the pre-eminence & to the enmity. To this principle we owe perhaps our liberty. A coalition between those powers would have been fatal to us. Among the principal members of antient & Modern confederacies, we find the same effect from the same cause. The contentions, not the Coalitions of Sparta, Athens & Thebes, proved fatal to the smaller members of the Amphyctionic Confederacy. The contentions, not the combinations of Prussia & Austria, have distracted & oppressed the German empire. Were the large States formidable _singly_ to their smaller neighbours? On this supposition the latter ought to wish for such a General Gov^t as will operate with equal energy on the former as on themselves. The more lax the band, the more liberty the larger will have to avail themselves of their superior force. Here again Experience was an instructive monitor. What is y^e situation of the weak compared with the strong in those stages of civilization in which the violence of individuals is least controuled by an efficient Government? The Heroic period of Antient Greece, the feudal licentiousness of the middle ages of Europe, the existing condition of the American Savages, answer this question. What is the situation of the minor sovereigns in the great society of independent nations, in which the more powerful are under no controul but the nominal authority of the law of Nations? Is not the danger to the former exactly in proportion to their weakness. But there are cases still more in point. What was the condition of the weaker members of the Amphyctionic Confederacy. Plutarch (life of Themistocles) will inform us that it happened but too often that the strongest cities corrupted & awed the weaker, and that Judgment went in favor of the more powerful party. What is the condition of the lesser states in the German Confederacy? We all know that they are exceedingly trampled upon: and that they owe their safety as far as they enjoy it, partly to their enlisting themselves, under the rival banners of the pre-eminent members, partly to alliances with neighbouring Princes which the Constitution of the Empire does not prohibit. What is the state of things in the lax system of the Dutch Confederacy? Holland contains about 1/2 the People, supplies about 1/2 of the money, and by her influence, silently & indirectly governs the whole republic. In a word; the two extremes before us are a perfect separation & a perfect incorporation, of the 13 States. In the first case they would be independent nations subject to no law, but the law of nations. In the last, they would be mere counties of one entire republic, subject to one common law. In the first case the smaller States would have every thing to fear from the larger. In the last they would have nothing to fear. The true policy of the small States therefore lies in promoting those principles & that form of Gov^t which will most approximate the States to the condition of counties. Another consideration may be added. If the Gen^l Gov^t be feeble, the large States distrusting its continuance, and foreseeing that their importance & security may depend on their own size & strength, will never submit to a partition. Give to the Gen^l Gov^t sufficient energy & permanency, & you remove the objection. Gradual partitions of the large, & junctions of the small States will be facilitated, and time may effect that equalization, which is wished for by the small States now, but can never be accomplished at once. M^r Wilson. The leading argument of those who contend for equality of votes among the States is that the States as such being equal, and being represented not as districts of individuals, but in their political & corporate capacities, are entitled to an equality of suffrage. According to this mode of reasoning the representation of the boroughs in Engl[~d] which has been allowed on all hands to be the rotten part of the Constitution, is perfectly right & proper. They are like the States represented in their corporate capacity like the States therefore they are entitled to equal voices, old Sarum to as many as London. And instead of the injury supposed hitherto to be done to London, the true ground of Complaint lies with old Sarum: for London instead of two which is her proper share, sends four representatives to Parliament.[117] [117] According to King's Notes, Charles Pinckney spoke after Madison: "_Charles Pinckney._ The Honors & offices may become the objects of strong desire and of combination to acquire them. If Representatives be apportioned among the States in the Ratio of numbers, the Citizens will be free and equal but the States will be unequal, and their sovereignty will be degraded."--King's _Life and Correspondence of Rufus King_, i., 610. M^r Sherman. The question is not what rights naturally belong to man; but how they may be most equally & effectually guarded in Society. And if some give up more than others in order to obtain this end, there can be no room for complaint. To do otherwise, to require an equal concession from all, if it would create danger to the rights of some, would be sacrificing the end to the means. The rich man who enters into Society along with the poor man, gives up more than the poor man, yet with an equal vote he is equally safe. Were he to have more votes than the poor man in proportion to his superior stake the rights of the poor man would immediately cease to be secure. This consideration prevailed when the articles of Confederation were formed.[118] [118] According to Yates, Madison followed Sherman: "Mr. Madison. There is danger in the idea of the gentleman from Connecticut. Unjust representation will ever produce it. In the United Netherlands, Holland governs the whole, although she has only one vote. The counties in Virginia are exceedingly disproportionate, and yet the smaller has an equal vote with the greater, and no inconvenience arises."--Yates, _Secret Proceedings_, etc., 182. The determination of the question from striking out the word "not" was put off till tomorrow at the request of the Deputies of N. York. Doc^r Franklin. M^r President. The small progress we have made after 4 or five weeks close attendance & continual reasonings with each other--our different sentiments on almost every question, several of the last producing as many noes as ays, is methinks a melancholy proof of the imperfection of the Human Understanding. We indeed seem to feel our own want of political wisdom, since we have been running about in search of it. We have gone back to ancient history for models of Government, and examined the different forms of those Republics which having been formed with the seeds of their own dissolution now no longer exist. And we have viewed Modern States all round Europe, but find none of their Constitutions suitable to our circumstances. In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? In the beginning of the Contest with G. Britain, when we were sensible of danger we had daily prayer in this room for the divine protection.--Our prayers, Sir, were heard, & they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a superintending providence in our favor. To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth--_that God Governs in the affairs of men_. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings that "except the Lord build the House they labour in vain that build it." I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments by Human wisdom and leave it to chance, war and conquest. I therefore beg leave to move--that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that Service-- M^r Sherman seconded the motion. M^r Hamilton & several others expressed their apprehensions that however proper such a resolution might have been at the beginning of the convention, it might at this late day, 1. bring on it some disagreeable animadversions, & 2. lead the public to believe that the embarrassments and dissensions within the Convention, had suggested this measure. It was answered by Doc^r F. M^r Sherman & others, that the past omission of a duty could not justify a further omission--that the rejection of such a proposition would expose the Convention to more unpleasant animadversions than the adoption of it: and that the alarm out of doors that might be excited for the state of things within, would at least be as likely to do good as ill. M^r Williamson, observed that the true cause of the omission could not be mistaken. The Convention had no funds. M^r Randolph proposed in order to give a favorable aspect to y^e measure, that a sermon be preached at the request of the convention on 4^{th} of July, the anniversary of Independence; & thenceforward prayers be used in y^e Convention every morning. D^r Frank^n 2^{ded} this motion. After several unsuccessful attempts for silently postponing this matter by adjourn^g the adjournment was at length carried, without any vote on the motion. FRIDAY JUNE 29^{TH} IN CONVENTION. Doc^r Johnson. The controversy must be endless whilst Gentlemen differ in the grounds of their arguments; Those on one side considering the States as districts of people composing one political Society; those on the other considering them as so many political societies. The fact is that the States do exist as political Societies, and a Gov^t is to be formed for them in their political capacity, as well as for the individuals composing them. Does it not seem to follow, that if the States as such are to exist they must be armed with some power of self-defence. This is the idea of (Col. Mason) who appears to have looked to the bottom of this matter. Besides the aristocratic and other interests, which ought to have the means of defending themselves, the States have their interests as such, and are equally entitled to like means. On the whole he thought that as in some respects the States are to be considered in their political capacity, and in others as districts of individual citizens the two ideas embraced on different sides, instead of being opposed to each other, ought to be combined; that in _one_ branch the _people_, ought to be represented, in the _other_ the _States_. M^r Ghoram. The States as now confederated have no doubt a right to refuse to be consolidated, or to be formed into any new system. But he wished the small States which seemed most ready to object, to consider which are to give up most, they or the larger ones. He conceived that a rupture of the Union w^d be an event unhappy for all, but surely the large States would be least unable to take care of themselves, and to make connections with one another. The weak therefore were most interested in establishing some general system for maintaining order. If among individuals, composed partly of weak, and partly of strong, the former most need the protection of law & Government, the case is exactly the same with weak & powerful States. What would be the situation of Delaware (for these things he found must be spoken out, & it might as well be done at first as last) what w^d be the situation of Delaware in case of a separation of the States? Would she not be at the mercy of Pennsylvania? would not her true interest lie in being consolidated with her, and ought she not now to wish for such a union with P^a under one Gov^t as will put it out of the power of Pen^a to oppress her? Nothing can be more ideal than the danger apprehended by the States from their being formed into one nation. Mass^{ts} was originally three colonies, viz old Mass^{ts} Plymouth--& the province of Mayne. These apprehensions existed then. An incorporation took place; all parties were safe & satisfied; and every distinction is now forgotten. The case was similar with Connecticut & New haven. The dread of Union was reciprocal; the consequence of it equally salutary and satisfactory. In like manner N. Jersey has been made one society out of two parts. Should a separation of the States take place, the fate of N. Jersey w^d be worst of all. She has no foreign commerce & can have but little. P^a & N. York will continue to levy taxes on her consumption. If she consults her interest she w^d beg of all things to be annihilated. The apprehensions of the small States ought to be appeased by another reflection Mass^{ts} will be divided. The province of Maine is already considered as approaching the term of its annexation to it; and P^a will probably not increase, considering the present state of her population, & other events that may happen. On the whole he considered a Union of the States as necessary to their happiness, & a firm Gen^l Gov^t as necessary to their Union. He sh^d consider it as his duty if his colleagues viewed the matter in the same light he did to stay here as long as any other State would remain with them, in order to agree on some plan that could with propriety be recommended to the people. M^r Elseworth, did not despair. He still trusted that some good plan of Gov^t w^d be devised & adopted. M^r Read. He sh^d have no objection to the system if it were truly national, but it has too much of a federal mixture in it. The little States he thought had not much to fear. He suspected that the large States felt their want of energy, & wished for a Gen^l Gov^t to supply the defect. Mass^{ts} was evidently labouring under her weakness and he believed Delaware w^d not be in much danger if in her neighbourhood. Delaware had enjoyed tranquillity & he flattered himself w^d continue to do so. He was not however so selfish as not to wish for a good Gen^l Gov^t. In order to obtain one the whole States must be incorporated. If the States remain, the representatives of the large ones will stick together, and carry everything before them. The Executive also will be chosen under the influence of this partiality, and will betray it in his administration. These jealousies are inseparable from the scheme of leaving the States in existence. They must be done away. The ungranted lands also which have been assumed by particular States must also be given up. He repeated his approbation of the plan of M^r Hamilton, & wished it to be substituted in the place of that on the table. M^r Madison agreed with Doc^r Johnson, that the mixed nature of the Gov^t ought to be kept in view; but thought too much stress was laid on the rank of the States as political societies. There was a gradation, he observed from the smallest corporation, with the most limited powers, to the largest empire with the most perfect sovereignty. He pointed out the limitations on the sovereignty of the States, as now confederated their laws in relation to the paramount law of the Confederacy were analagous to that of bye laws to the supreme law within a State. Under the proposed Gov^t the powers of the States will be much farther reduced. According to the views of every member, the Gen^l Gov^t will have powers far beyond those exercised by the British Parliament, when the States were part of the British Empire. It will in particular have the power, without the consent of the State Legislatures, to levy money directly on the people themselves; and therefore not to divest such _unequal_ portions of the people as composed the several States, of an _equal_ voice, would subject the system to the reproaches & evils which have resulted from the vicious representation in G. B. He entreated the gentlemen representing the small States to renounce a principle w^{ch} was confessedly unjust, which c^d never be admitted, & if admitted must infuse mortality into a Constitution which we wished to last forever. He prayed them to ponder well the consequences of suffering the Confederacy to go to pieces. It had been s^d that the want of energy in the large states w^d be a security to the small. It was forgotten that this want of energy proceeded from the supposed security of the States ag^{st} all external danger. Let each state depend on itself for its security, & let apprehensions arise of danger, from distant powers or from neighbouring States, & the languishing condition of all the States, large as well as small, w^d soon be transformed into vigorous & high toned Gov^{ts}. His great fear was that their Gov^{ts} w^d then have too much energy, that these might not only be formidable in the large to the small States, but fatal to the internal liberty of all. The same causes which have rendered the old world the Theatre of incessant wars, & have banished liberty from the face of it, w^d soon produce the same effects here. The weakness & jealousy of the small States w^d quickly introduce some regular military force ag^{st} sudden danger from their powerful neighbours. The example w^d be followed by others, and w^d soon become universal. In time of actual war, great discretionary powers are constantly given to the Executive Magistrate. Constant apprehension of war, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence ag^{st} foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people. It is perhaps questionable, whether the best concerted system of absolute power in Europe c^d maintain itself, in a situation, where no alarms of external danger c^d tame the people to the domestic yoke. The insular situation of G. Britain was the principal cause of her being an exception to the general fate of Europe. It has rendered less defence necessary, and admitted a kind of defence w^{ch} c^d not be used for the purpose of oppression.--These consequences he conceived ought to be apprehended whether the States should run into a total separation from each other, or sh^d enter into partial confederacies. Either event w^d be truly deplorable; & those who might be accessary to either, could never be forgiven by their Country, nor by themselves. [119]M^r Hamilton observed that individuals forming political Societies modify their rights differently with regard to suffrage. Examples of it are found in all the States. In all of them some individuals are deprived of the right altogether, not having the requisite qualification of property. In some of the States the right of suffrage is allowed in some cases and refused in others. To vote for a member in one branch, a certain quantum of property, to vote for a member in another branch of the Legislature, a higher quantum of property is required. In like manner States may modify their right of suffrage differently, the larger exercising a larger, the smaller a smaller share of it. But as States are a collection of individual men which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition. Nothing could be more preposterous or absurd than to sacrifice the former to the latter. It has been s^d that if the smaller States renounce their _equality_, they renounce at the same time their _liberty_. The truth is it is a contest for power, not for liberty. Will the men composing the small States be less free than those composing the larger. The State of Delaware having 40,000 souls will _lose power_, if she has 1/10 only of the votes allowed to P^a having 400,000: but will the people of Del: _be less free_, if each citizen has an equal vote with each citizen of P^a He admitted that common residence within the same State would produce a certain degree of attachment; and that this principle might have a certain influence in public affairs. He thought however that this might by some precautions be in a great measure excluded: and that no material inconvenience could result from it, as there could not be any ground for combination among the States whose influence was most dreaded. The only considerable distinction of interests, lay between the carrying & non-carrying States, which divides instead of uniting the largest States. No considerable inconvenience had been found from the division of the State of N. York into different districts of different sizes. [119] From this date he was absent till the ---- of ----.--Madison's Note. Some of the consequences of a dissolution of the Union, and the establishment of partial confederacies, had been pointed out. He would add another of a most serious nature. Alliances will immediately be formed with different rival & hostile nations of Europes, who will foment disturbances among ourselves, and make us parties to all their own quarrels. Foreign Nations having American dominion are & must be jealous of us. Their representatives betray the utmost anxiety for our fate, & for the result of this meeting, which must have an essential influence on it.--It had been said that respectability in the eyes of foreign Nations was not the object at which we aimed; that the proper object of republican Government was domestic tranquillity & happiness. This was an ideal distinction. No Government could give us tranquillity & happiness at home, which did not possess sufficient stability and strength to make us respectable abroad. This was the critical moment for forming such a Government. We should run every risk in trusting to future amendments. As yet we retain the habits of union. We are weak & sensible of our weakness. Henceforward the motives will become feebler, and the difficulties greater. It is a miracle that we were now here exercising our tranquil & free deliberations on the subject. It would be madness to trust to future miracles. A thousand causes must obstruct a reproduction of them. M^r Pierce considered the equality of votes under the Confederation as the great source of the public difficulties. The members of Cong^s were advocates for local advantages. State distinctions must be sacrificed as far as the general good required, but without destroying the States. Tho' from a small State he felt himself a Citizen of the U. S. M^r Gerry, urged that we never were independent States, were not such now, & never could be even on the principles of the Confederation. The States & the advocates for them were intoxicated with the idea of their _sovereignty_. He was a member of Congress at the time the federal articles were formed. The injustice of allowing each State an equal vote was long insisted on. He voted for it, but it was ag^{st} his Judgment, and under the pressure of public danger, and the obstinacy of the lesser States. The present Confederation he considered as dissolving. The fate of the Union will be decided by the Convention. If they do not agree on something, few delegates will probably be appointed to Cong^s. If they do Cong^s will probably be kept up till the new System should be adopted. He lamented that instead of coming here like a band of brothers, belonging to the same family, we seemed to have brought with us the spirit of political negotiators. M^r L. Martin remarked that the language of the States being _sovereign & independent_, was once familiar & understood; though it seemed now so strange & obscure. He read those passages in the articles of Confederation, which describe them in that language. On the question as moved by M^r Lansing. Shall the word "not" be struck out. Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d div^d. V^a no. N. C. no. S. C. no. Geo. no. On the motion to agree to the clause as reported, "that the rule of suffrage in the 1^{st} branch ought not to be according to that established by the Articles of the Confederation Mass. ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay. Doc^r Johnson & M^r Elseworth moved to postpone the residue of the clause, & take up y^e 8 Resol: On question Mas. no. Con^t ay. N. Y. ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Elseworth moved that the rule of suffrage in the 2^d branch be the same with that established by the articles of Confederation. "He was not sorry on the whole he said that the vote just passed, had determined against this rule in the first branch. He hoped it would become a ground of compromise with regard to the 2^d branch. We were partly national; partly federal. The proportional representation in the first branch was conformable to the national principle & would secure the large States ag^{st} the small. An equality of voices was conformable to the federal principle and was necessary to secure the Small States ag^{st} the large. He trusted that on this middle ground a compromise would take place. He did not see that it could on any other. And if no compromise should take place, our meeting would not only be in vain but worse than in vain. To the Eastward he was sure Mass^{ts} was the only State that would listen to a proposition for excluding the States as equal political Societies, from an equal voice in both branches. The others would risk every consequence rather than part with so dear a right. An attempt to deprive them of it, was at once cutting the body of America in two, and as he supposed would be the case, somewhere about this part of it. The large States he conceived would notwithstanding the equality of votes, have an influence that would maintain their superiority. Holland, as had been admitted (by M^r Madison) had, notwithstanding a like equality in the Dutch Confederacy, a prevailing influence in the public measures. The power of self defence was essential to the small States. Nature had given it to the smallest insect of the creation. He could never admit that there was no danger of combinations among the large States. They will like individuals find out and avail themselves of the advantage to be gained by it. It was true the danger would be greater if they were contiguous and had a more immediate common interest. A defensive combination of the small States was rendered more difficult by their great number. He would mention another consideration of great weight. The existing confederation was founded on the equality of the States in the article of suffrage: was it meant to pay no regard to this antecedent plighted faith. Let a strong Executive, a Judiciary & Legislative power be created, but Let not too much be attempted; by which all may be lost. He was not in general a half-way man, yet he preferred doing half the good we could, rather than do nothing at all. The other half may be added, when the necessity shall be more fully experienced.[120] [120] In King's Notes another speech of Madison's is given after Ellsworth's: "_Madison._ One Gentleman from Connecticut has proposed doing as much as is prudent now, leaving future amendments to Posterity,--this is a dangerous doctrine. The Defects of the Amphictionic League were acknowledged, but were reformed. The Netherlands have four times attempted to make amendments in their Confederation, but have failed in each attempt. The Fear of innovation, the hue & Cry in favour of the Liberty of the People will as they have done prevent the necessary Reforms. If the States have equal Votes & influence in the Senate we shall be in the utmost danger, the minority of the People will govern the majority. Delaware during the late war opposed and defeated an Embargo, to which twelve States had agreed, and continued to supply the enemy with Provisions in time of war."--King's _Life and Times of Rufus King_, i., 612. M^r Baldwin[121] could have wished that the powers of the General Legislature had been defined, before the mode of constituting it had been agitated. He should vote against the motion of M^r Elseworth, tho. he did not like the Resolution as it stood in the Report of the Committee of the whole. He thought the second branch ought to be the representation of property, and that in forming it therefore some reference ought to be had to the relative wealth of their Constituents, and to the principles on which the Senate of Mass^{ts} was constituted. He concurred with those who thought it w^d be impossible for the Gen^l Legislature to extend its cares to the local matters of the States.[122] Adj^d. [121] "Mr. Baldwin is a Gentleman of superior abilities, and joins in a public debate with great art and eloquence. Having laid the foundation of a compleat classical education at Harvard College, he pursues every other study with ease. He is well acquainted with Books and Characters, and has an accommodating turn of mind, which enables him to gain the confidence of Men, and to understand them. He is a practising Attorney in Georgia, and has been twice a Member of Congress. Mr. Baldwin is about 38 years of age."--Pierce's Notes _Am. Hist. Rev._, iii., 333. [122] According to Yates, after Baldwin spoke: "Mr. Madison. I would always exclude inconsistent principles in framing a system of government. The difficulty of getting its defects amended are great and sometimes insurmountable. The Virginia state government was the first which was made, and though its defects are evident to every person, we cannot get it amended. The Dutch have made four several attempts to amend their system without success. The few alterations made in it were by tumult and faction, and for the worse. If there was real danger, I would give the smaller states the defensive weapons--But there is none from that quarter. The great danger to our general government is the great southern and northern interests of the continent, being opposed to each other. Look to the votes in congress, and most of them stand divided by the geography of the country, not according to the size of the states. "Suppose the first branch granted money, may not the second branch, from state views, counteract the first? In congress, the single state of Delaware prevented an embargo, at the time that all the other states thought it absolutely necessary for the support of the army. Other powers, and those very essential, besides the legislative, will be given to the second branch--such as the negativing all state laws. I would compromise on this question, if I could do it on correct principles, but otherwise not--if the old fabric of the confederation must be the groundwork of the new, we must fall."--Yates, _Secret Proceedings_, etc., 189. SATURDAY JUNE 30. 1787. IN CONVENTION M^r Brearly moved that the Presid^t write to the Executive of N. Hampshire, informing it that the business depending before the Convention was of such a nature as to require the immediate attendance of the deputies of that State. In support of his motion he observed that the difficulties of the subject and the diversity of opinions called for all the assistance we could possibly obtain, (it was well understood that the object was to add N. Hampshire to the n^o of States opposed to the doctrine of proportional representation, which it was presumed from her relative size she must be adverse to). M^r Patterson seconded the motion. M^r Rutlidge could see neither the necessity nor propriety of such a measure. They are not unapprized of the meeting, and can attend if they choose. Rho. Island might as well be urged to appoint & send deputies. Are we to suspend the business until the deputies arrive? if we proceed he hoped all the great points would be adjusted before the letter could produce its effect. M^r King, said he had written more than once as a private correspondent, & the answers gave him every reason to expect that State would be represented very shortly, if it sh^d be so at all. Circumstances of a personal nature had hitherto prevented it. A letter c^d have no effect. M^r Wilson wished to know whether it would be consistent with the rule or reason of secrecy, to communicate to N. Hampshire that the business was of such a nature as the motion described. It w^d spread a great alarm. Besides he doubted the propriety of soliciting any State on the subject; the meeting being merely voluntary--on motion of M^r Brearly Mas^{ts} no. Con^t no. N. Y. ay. N. J. ay. P^a not on y^e floor. Del. not on floor. M^d div^d V^a no. N. C. no. S. C. no. Geo. not on floor. The motion of M^r Elseworth resumed for allowing each State an equal vote in y^e 2^d branch. M^r Wilson did not expect such a motion after the establishment of y^e contrary principle in the 1^{st} branch; and considering the reasons which would oppose it, even if an equal vote had been allowed in the 1^{st} branch. The Gentleman from Connecticut (M^r Elseworth) had pronounced that if the motion should not be acceded to, of all the States North of Pen^a one only would agree to any Gen^l Government. He entertained more favorable hopes of Conn^t and of the other Northern States. He hoped the alarms exceeded their cause, and that they would not abandon a Country to which they were bound by so many strong and endearing ties. But should the deplored event happen, it would neither stagger his sentiments nor his duty. If the minority of the people of America refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds. The votes of yesterday ag^{st} the just principle of representation, were as 22 to 90 of the people of America. Taking the opinions to be the same on this point, and he was sure if there was any room for change, it could not be on the side of the majority, the question will be shall less than 1/4 of the U. States withdraw themselves from the Union; or shall more than 3/4 renounce the inherent, indisputable and unalienable rights of men, in favor of the artificial systems of States. If issue must be joined, it was on this point he would chuse to join it. The Gentleman from Connecticut in supposing that the preponderancy secured to the majority in the 1^{st} branch had removed the objections to an equality of votes in the 2^d branch for the security of the minority, narrowed the case extremely. Such an equality will enable the minority to controul in all cases whatsoever, the sentiments and interests of the majority. Seven States will controul six: Seven States, according to the estimates that had been used, composed 24/90 of the whole people. It would be in the power then of less than 1/3 to overrule 2/3 whenever a question should happen to divide the States in that manner. Can we forget for whom we are forming a Government? Is it for _men_, or for the imaginary beings called _States_? Will our honest Constituents be satisfied with metaphysical distinctions? Will they, ought they to be satisfied with being told, that the one-third compose the greater number of States? The rule of suffrage ought on every principle to be the same in the 2^d as in the 1^{st} branch. If the Government be not laid on this foundation, it can be neither solid nor lasting. Any other principle will be local, confined & temporary. This will expand with the expansion, and grow with the growth of the U. States.--Much has been said of an imaginary combination of three States. Sometimes a danger of monarchy, sometimes of aristocracy has been charged on it. No explanation however of the danger has been vouchsafed. It would be easy to prove both from reason & history that rivalships would be more probable than coalitions; and that there are no coinciding interests that could produce the latter. No answer has yet been given to the observations of (M^r Madison) on this subject. Should the Executive Magistrate be taken from one of the large States would not the other two be thereby thrown into the scale with the other States? Whence then the danger of monarchy? Are the people of the three large States more aristocratic than those of the small ones? Whence then the danger of aristocracy from their influence? It is all a mere illusion of names. We talk of States, till we forget what they are composed of. Is a real & fair majority, the natural hot-bed of aristocracy? It is a part of the definition of this species of Gov^t or rather of tyranny, that the smaller number governs the greater. It is true that a majority of States in the 2^d branch cannot carry a law ag^{st} a majority of the people in the 1^{st}. But this removes half only of the objection. Bad Govern^{ts} are of two sorts. 1. that which does too little. 2. that which does too much: that which fails thro' weakness; and that which destroys thro' oppression. Under which of these evils do the U. States at present groan? Under the weakness and inefficiency of its Govern^t. To remedy this weakness we have been sent to this Convention. If the motion should be agreed to, we shall leave the U. S. fettered precisely as heretofore; with the additional mortification of seeing the good purposes of y^e fair representation of the people in the 1^{st} branch, defeated in the 2^d. Twenty four will still controul sixty six. He lamented that such a disagreement should prevail on the point of representation, as he did not foresee that it would happen on the other point most contested, the boundary between the Gen^l & the local authorities. He thought the States necessary & valuable parts of a good system. M^r Elseworth. The capital objection of M^r Wilson, "that the minority will rule the majority" is not true. The power is given to the few to save them from being destroyed by the many. If an equality of votes had been given to them in both branches, the objection might have had weight. Is it a novel thing that the few should have a check on the many? Is it not the case in the British Constitution the wisdom of which so many gentlemen have united in applauding? Have not the House of Lords, who form so small a proportion of the nation a negative on the laws, as a necessary defence of their peculiar rights ag^{st} the encroachm^{ts} of the Commons. No instance of a Confederacy has existed in which an equality of voices has not been exercised by the members of it. We are running from one extreme to another. We are razing the foundations of the building, when we need only repair the roof. No salutary measure has been lost for want of _a majority of the States_, to favor it. If security be all that the great States wish for the 1^{st} branch secures them. The danger of combinations among them is not imaginary. Altho' no particular abuses could be foreseen by him, the possibility of them would be sufficient to alarm him. But he could easily conceive cases in which they might result from such combinations. Suppose that in pursuance of some commercial treaty or arrangement, three or four free ports & no more were to be established would not combinations be formed in favor of Boston--Philad^a & some port of the Chesapeak? A like concert might be formed in the appointment of the Great officers. He appealed again to the obligations of the federal pact which was still in force, and which had been entered into with so much solemnity; persuading himself that some regard would still be paid to the plighted faith under which each State small as well as great, held an equal right of suffrage in the general Councils. His remarks were not the result of partial or local views. The State he represented (Connecticut) held a middle rank. M^r Madison did justice to the able and close reasoning of M^r E. but must observe that it did not always accord with itself. On another occasion, the large States were described by him as the Aristocratic States, ready to oppress the small. Now the Small are the House of Lords requiring a negative to defend them ag^{st} the more numerous Commons. M^r E. had also erred in saying that no instance had existed in which confederated States had not retained to themselves a perfect equality of suffrage. Passing over the German system in which the K. of Prussia has nine voices, he reminded M^r E. of the Lycian Confederacy, in which the component members had votes proportioned to their importance, and which Montesquieu recommends as the fittest model for that form of Government. Had the fact been as stated by M^r E. it would have been of little avail to him, or rather would have strengthened the arguments ag^{st} him; the History & fate of the several confederacies modern as well as Antient, demonstrating some radical vice in their structure. In reply to the appeal of M^r E. to the faith plighted in the existing federal compact, he remarked that the party claiming from others an adherence to a common engagement ought at least to be guiltless itself of a violation. Of all the States however Connecticut was perhaps least able to urge this plea. Besides the various omissions to perform the stipulated acts from which no State was free, the Legislature of that State had by a pretty recent vote, _positively refused_ to pass a law for complying with the Requisitions of Cong^s, and had transmitted a copy of the vote to Cong^s. It was urged, he said, continually that an equality of votes in the 2^d branch was not only necessary to secure the small, but would be perfectly safe to the large ones whose majority in the 1^{st} branch was an effectual bulwark. But notwithstanding this apparent defence, the majority of States might still injure the majority of people. 1. they could _obstruct_ the wishes and interests of the majority. 2. they could _extort_ measures repugnant to the wishes & interest of the Majority. 3. they could _impose_ measures adverse thereto; as the 2^d branch will prob[~l]y exercise some great powers, in which the 1^{st} will not participate. He admitted that every peculiar interest whether in any class of Citizens, or any description of States, ought to be secured as far as possible. Wherever there is danger of attack there ought to be given a Constitutional power of defence. But he contended that the States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. It did not lie between the large & small States: It lay between the Northern & Southern. And if any defensive power were necessary, it ought to be mutually given to these two interests. He was so strongly impressed with this important truth that he had been casting about in his mind for some expedient that would answer the purpose. The one which had occurred was that instead of proportioning the votes of the States in both branches, to their respective numbers of inhabitants computing the slaves in the ratio of 5 to 3, they should be represented in one branch according to the number of free inhabitants only; and in the other according to the whole n^o counting the slaves as free. By this arrangement the Southern Scale would have the advantage in one House, and the Northern in the other. He had been restrained from proposing this expedient by two considerations: one was his unwillingness to urge any diversity of interests on an occasion where it is but too apt to arise of itself--the other was, the inequality of powers that must be vested in the two branches, and which w^d destroy the equilibrium of interests. M^r Elseworth assured the House that whatever might be thought of the Representatives of Connecticut the State was entirely federal in her disposition. He appealed to her great exertions during the war, in supplying both men & money. The muster rolls would show she had more troops in the field than Virg^a. If she had been Delinquent, it had been from inability, and not more so than other States. M^r Sherman. M^r Madison had animadverted on the delinquency of the States, when his object required him to prove that the Constitution of Cong^s was faulty. Cong^s is not to blame for the faults of the States. Their measures have been right, and the only thing wanting has been, a further power in Cong^s to render them effectual. M^r Davy was much embarrassed and wished for explanations. The Report of the Committee allowing the Legislatures to choose the Senate, and establishing a proportional representation in it, seemed to be impracticable. There will according to this rule be ninety members in the outset, and the number will increase as new States are added. It was impossible that so numerous a body could possess the activity and other qualities required in it. Were he to vote on the comparative merits of the report as it stood, and the amendment, he should be constrained to prefer the latter. The appointment of the Senate by electors chosen by the people for that purpose was he conceived liable to an insuperable difficulty. The larger Counties or districts thrown into a general district, would certainly prevail over the smaller Counties or Districts, and merit in the latter would be excluded altogether. The report therefore seemed to be right in referring the appointment to the Legislatures, whose agency in the general System did not appear to him objectionable as it did to some others. The fact was that the local prejudices & interests which could not be denied to exist, would find their way into the national Councils whether the Representatives should be chosen by the Legislatures or by the people themselves. On the other hand if a proportional representation was attended with insuperable difficulties, the making the Senate the Representative of the States, looked like bringing us back to Cong^s again, and shutting out all the advantages expected from it. Under this view of the subject he could not vote for any plan for the Senate yet proposed. He thought that in general there were extremes on both sides. We were partly federal, partly national in our Union, and he did not see why the Gov^t might not in some respects operate on the States, in others on the people. M^r Wilson admitted the question concerning the number of Senators, to be embarrassing. If the smallest States be allowed one, and the others in proportion, the Senate will certainly be too numerous. He looked forward to the time when the smallest States will contain 100,000 souls at least. Let there be then one Senator in each for every 100,000 souls and let the States not having that n^o of inhabitants be allowed one. He was willing himself to submit to this temporary concession to the small States; and threw out the idea as a ground of compromise. Doc^r Franklin. The diversity of opinions turns on two points. If a proportional representation takes place, the small States contend that their liberties will be in danger. If an equality of votes is to be put in its place, the large States say their money will be in danger. When a broad table is to be made, and the edges of planks do not fit, the artist takes a little from both, and makes a good joint. In like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition. He had prepared one which he would read, that it might lie on the table for consideration. The proposition was in the words following "That the Legislatures of the several States shall choose & send an equal number of Delegates, namely ---- who are to compose the 2^d branch of the General Legislature-- That in all cases or questions wherein the Sovereignty of individual States may be affected, or whereby their authority over their own Citizens may be diminished, or the authority of the General Government within the several States augmented, each State shall have equal suffrage. That in the appointment of all Civil officers of y^e Gen^l Gov^t in the election of whom the 2^d branch may by the Constitution have part, each State shall have equal suffrage. That in fixing the Salaries of such Officers, and in all allowances for public services, and generally in all appropriations & dispositions of money to be drawn out of the general Treasury; and in all laws for supplying that Treasury, the Delegates of the several States shall have suffrage in proportion to the Sums which their respective States do actually contribute to the Treasury." Where a ship had many owners this was the rule of deciding on her expedition. He had been one of the Ministers from this Country to France during the joint war and w^d have been very glad if allowed a vote in distributing the money to carry it on. M^r King observed that the simple question was whether each State should have an equal vote in the 2^d branch; that it must be apparent to those Gentlemen who liked neither the motion for this equality, nor the report as it stood, that the report was as susceptible of melioration as the motion; that a reform would be nugatory & nominal only if we should make another Congress of the proposed Senate: that if the adherence to an equality of votes was fixed & unalterable, there could not be less obstinacy on the other side, & that we were in fact cut asunder already, and it was in vain to shut our eyes against it: that he was however filled with astonishment that if we were convinced that every _man_ in America was secured in all his rights, we should be ready to sacrifice this substantial good to the Phantom of _State_ sovereignty: that his feelings were more harrowed & his fears more agitated for his Country than he could express, that he conceived this to be the last opportunity of providing for its liberty & happiness: that he could not therefore but repeat his amazement that when a just govern^t founded on a fair representation of the _people_ of America was within our reach, we should renounce the blessing, from an attachment to the ideal freedom & importance of _States_: that should this wonderful illusion continue to prevail, his mind was prepared for every event, rather than to sit down under a Gov^t founded in a vicious principle of representation, and which must be as short lived as it would be unjust. He might prevail on himself to accede to some such expedient as had been hinted by M^r Wilson; but he never could listen to an equality of votes as proposed in the motion. M^r Dayton. When assertion is given for proof, and terror substituted for argument, he presumed they would have no effect however eloquently spoken. It should have been shewn that the evils we have experienced have proceeded from the equality now objected to; and that the seeds of dissolution for the State Governments are not sown in the Gen^l Government. He considered the system on the table as a novelty, an amphibious monster; and was persuaded that it never would be rec^d by the people. M^r Martin w^d never confederate if it could not be done on just principles. M^r Madison would acquiesce in the concession hinted by M^r Wilson, on condition that a due independence should be given to the Senate. The plan in its present shape makes the Senate absolutely dependent on the States. The Senate therefore is only another edition of Cong^s. He knew the faults of that Body & had used a bold language ag^{st} it. Still he would preserve the State rights, as carefully as the trials by jury. M^r Bedford, contended that there was no middle way between a perfect consolidation and a mere confederacy of the States. The first is out of the question, and in the latter they must continue if not perfectly, yet equally sovereign. If political Societies possess ambition avarice, and all the other passions which render them formidable to each other, ought we not to view them in this light here? Will not the same motives operate in America as elsewhere? If any gentleman doubts it let him look at the votes. Have they not been dictated by interest, by ambition? Are not the large States evidently seeking to aggrandize themselves at the expense of the small? They think no doubt that they have right on their side, but interest had blinded their eyes. Look at Georgia. Though a small State at present, she is actuated by the prospect of soon being a great one. S. Carolina is actuated both by present interest & future prospects. She hopes too to see the other States cut down to her own dimensions. N. Carolina has the same motives of present & future interest. Virg^a follows. Mary^d is not on that side of the Question. Pen^a has a direct and future interest. Mass^{ts} has a decided and palpable interest in the part she takes. Can it be expected that the small States will act from pure disinterestedness. Look at G. Britain. Is the Representation there less unequal? But we shall be told again that that is the rotten part of the Constitution. Have not the boroughs however held fast their constitutional rights? And are we to act with greater purity than the rest of mankind. An exact proportion in the Representation is not preserved in any one of the States. Will it be said that an inequality of power will not result from an inequality of votes. Give the opportunity, and ambition will not fail to abuse it. The whole History of mankind proves it. The three large States have a common interest to bind them together in commerce. But whether a combination as we suppose, or a competition as others suppose, shall take place among them, in either case, the small States must be ruined. We must like Solon make such a Govern^t as the people will approve. Will the smaller States ever agree to the proposed degradation of them. It is not true that the people will not agree to enlarge the powers of the present Cong^s. The language of the people has been that Cong^s ought to have the power of collecting an impost, and of coercing the States where it may be necessary. On The first point they have been explicit &, in a manner, unanimous in their declarations. And must they not agree to this & similar measures if they ever mean to discharge their engagements. The little States are willing to observe their engagements, but will meet the large ones on no ground but that of the Confederation. We have been told with a dictatorial air that this is the last moment for a fair trial in favor of a Good Governm^t. It will be the last indeed if the propositions reported from the Committee go forth to the people. He was under no apprehensions. The Large States dare not dissolve the Confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice. He did not mean by this to intimidate or alarm. It was a natural consequence, which ought to be avoided by enlarging the federal powers not annihilating the federal system. This is what the people expect. All agree in the necessity of a more efficient Gov^t and why not make such an one as they desire. M^r Elseworth. Under a National Gov^t he should participate in the National Security, as remarked by (M^r King) but that was all. What he wanted was domestic happiness. The Nat^l Gov^t could not descend to the local objects on which this depended. It could only embrace objects of a general nature. He turned his eyes therefore for the preservation of his rights to the State Gov^{ts}. From these alone he could derive the greatest happiness he expects in this life. His happiness depends on their existence, as much as a new born infant on its mother for nourishment. If this reasoning was not satisfactory, he had nothing to add that could be so. M^r King was for preserving the States in a subordinate degree, and as far as they could be necessary for the purposes stated by M^r Elseworth. He did not think a full answer had been given to those who apprehended a dangerous encroachment on their jurisdictions. Expedients might be devised as he conceived that would give them all the security the nature of things would admit of. In the establish^t of Societies the Constitution was to the Legislature what the laws were to individuals. As the fundamental rights of individuals are secured by express provisions in the State Constitutions; why may not a like security be provided for the Rights of States in the National Constitution. The articles of Union between Engl^d & Scotland furnish an example of such a provision in favor of sundry rights of Scotland. When that Union was in agitation, the same language of apprehension which has been heard from the smaller States, was in the mouths of the Scotch patriots. The articles however have not been violated and the Scotch have found an increase of prosperity & happiness. He was aware that this will be called a mere _paper security_. He thought it a sufficient answer to say that if fundamental articles of compact, are no sufficient defence against physical power, neither will there be any safety ag^{st} it if there be no compact. He could not sit down, without taking some notice of the language of the honorable gentleman from Delaware (M^r Bedford). It was not he that had uttered a dictatorial language. This intemperance had marked the honorable Gentleman himself. It was not he who with a vehemence unprecedented in that House, had declared himself ready to turn his hopes from our common Country, and court the protection of some foreign hand. This too was the language of the Honbl member himself. He was grieved that such a thought had entered into his heart. He was more grieved that such an expression had dropped from his lips. The gentleman c^d only excuse it to himself on the score of passion. For himself whatever might be his distress, he w^d never court relief from a foreign power. Adjourned. MONDAY JULY 2^D IN CONVENTION. On the question for allowing each State one vote in the second branch as moved by M^r Elseworth, Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. M^r Jenifer being not present M^r Martin alone voted V^a no. N. C. no. S. C. no. Geo. div^d. M^r Houston no. M^r Baldwin ay. M^r Pinkney thought an equality of votes in the 2^d branch inadmissible. At the same time candor obliged him to admit that the large States would feel a partiality for their own Citizens & give them a preference, in appointments: that they might also find some common points in their Commercial interests, and promote treaties favorable to them. There is a real distinction [between] the Northern & South^n interests. N. Carol^a S. Carol: & Geo. in their Rice & Indigo had a peculiar interest which might be sacrificed. How then shall the larger States be prevented from administering the Gen^l Gov^t as they please, without being themselves unduly subjected to the will of the smaller? By allowing them some but not a full, proportion. He was extremely anxious that something should be done, considering this as the last appeal to a regular experiment. Cong^s have failed in almost every effort for an amendment of the federal System. Nothing has prevented a dissolution of it, but the appointm^t of this Convention; & he could not express his alarms for the consequence of such an event. He read his motion, to form the States into classes, with an apportionment of Senators among them (see Art: 4, of his plan). General Pinkney was willing the motion might be considered. He did not entirely approve it. He liked better the motion of Doc^r Franklin (which see Saturday June 30). Some Compromise seemed to be necessary, the States being exactly divided on the question for an equality of votes in the 2^d branch. He proposed that a Committee consisting of a member from each State should be appointed to devise & report some compromise. M^r L. Martin had no objection to a commitment, but no modifications whatever could reconcile the Smaller States to the least diminution of their equal Sovereignty. M^r Sherman. We are now at a full stop, and nobody he supposed meant that we sh^d break up without doing something. A committee he thought most likely to hit on some expedient. [123]Mr. Gov^r Morris. thought a Com^e adviseable as the Convention had been equally divided. He had a stronger reason also. The mode of appointing the 2^d branch tended he was sure to defeat the object of it. What is this object? To check the precipitation, changeableness, and excesses of the first branch. Every man of observation had seen in the democratic branches of the State Legislatures, precipitation--in Congress changeableness, in every department excesses ag^{st} personal liberty private property & personal safety. What qualities are necessary to constitute a check in this case? _Abilities_ and _virtue_, are equally necessary in both branches. Something more then is now wanted, 1. the checking branch must have a personal interest in checking the other branch, one interest must be opposed to another interest. Vices as they exist, must be turned ag^{st} each other. 2. It must have great personal property, it must have the aristocratic spirit; it must love to lord it thro' pride. Pride is indeed the great principle that actuates both the poor & the rich. It is this principle which in the former resists, in the latter abuses authority. 3. It should be independent. In Religion the Creature is apt to forget its Creator. That it is otherwise in Political Affairs, the late debates here are an unhappy proof. The aristocratic body, should be as independent & as firm as the democratic. If the members of it are to revert to a dependence on the democratic choice, the democratic scale will preponderate. All the guards contrived by America have not restrained the Senatorial branches of the Legislatures from a servile complaisance to the democratic. If the 2^d branch is to be dependent we are better without it. To make it independent, it should be for life. It will then do wrong, it will be said. He believed so; He hoped so. The Rich will strive to establish their dominion & enslave the rest. They always did. They always will. The proper security ag^{st} them is to form them into a separate interest. The two forces will then controul each other. Let the rich mix with the poor and in a Commercial Country, they will establish an Oligarchy. Take away commerce, and the democracy will triumph. Thus it has been all the world over. So it will be among us. Reason tells us we are but men: and we are not to expect any particular interference of Heaven in our favor. By thus combining & setting apart, the aristocratic interest, the popular interest will be combined ag^{st} it. There will be a mutual check and mutual security. 4. An independence for life, involves the necessary permanency. If we change our measures nobody will trust us: and how avoid a change of measures, but by avoiding a change of men. Ask any man if he confides in Cong^s if he confides in the State of Pen^a if he will lend his money or enter into contract? He will tell you no. He sees no stability. He can repose no confidence. If G. B. were to explain her refusal to treat with us, the same reasoning would be employed.--He disliked the exclusion of the 2^d branch from holding offices. It is dangerous. It is like the imprudent exclusion of the military officers during the war, from civil appointments. It deprives the Executive of the principal source of influence. If danger be apprehended from the Executive what a left-handed way is this of obviating it? If the son, the brother or the friend can be appointed, the danger may be even increased, as the disqualified father &c. can then boast of a disinterestedness which he does not possess. Besides shall the best, the most able, the most virtuous citizens not be permitted to hold offices? Who then are to hold them? He was also ag^{st} paying the Senators. They will pay themselves if they can. If they can not they will be rich and can do without it. Of such the 2^d branch ought to consist; and none but such can compose it if they are not to be paid--He contended that the Executive should appoint the Senate & fill up vacancies. This gets rid of the difficulty in the present question. You may begin with any ratio you please; it will come to the same thing. The members being independ^t & for life, may be taken as well from one place as from another.--It should be considered too how the scheme could be carried through the States. He hoped there was strength of mind eno' in this House to look truth in the face. He did not hesitate therefore to say that loaves & fishes must bribe the Demagogues. They must be made to expect higher offices under the general than the State Gov^{ts}. A Senate for life will be a noble bait. Without such captivating prospects, the popular leaders will oppose & defeat the plan. He perceived that the 1^{st} branch was to be chosen by the people of the States; the 2^d by those chosen by the people. Is not here a Gov^t by the States, a Govern^t by Compact between Virg^a in the 1^{st} & 2^d branch, Mass^{ts} in the 1^{st} & 2^d branch &c. This is going back to mere treaty. It it no Gov^t at all. It is altogether dependent on the States, and will act over again the part which Cong^s has acted. A firm Govern^t alone can protect our liberties. He fears the influence of the rich. They will have the same effect here as elsewhere if we do not by such a Gov^t keep them within their proper sphere. We should remember that the people never act from reason alone. The Rich will take the advantage of their passions & make these the instruments for oppressing them. The Result of the Contest will be a violent aristocracy, or a more violent despotism. The schemes of the Rich will be favored by the extent of the Country. The people in such distant parts cannot communicate & act in concert. They will be the dupes of those who have more knowledge & intercourse. The only security ag^{st} encroachments will be a select & sagacious body of men, instituted to watch ag^{st} them on all sides. He meant only to hint these observations, without grounding any motion on them. [123] He had just returned from N. Y. hav^g left y^e Convention a few days after it commenced business.--Madison's Note. M^r Randolph favored the commitment though he did not expect much benefit from the expedient. He animadverted on the warm & rash language of M^r Bedford on Saturday; reminded the small States that if the large States should combine some danger of which he did not deny there would be a check in the revisionary power of the Executive, and intimated that in order to render this still more effectual, he would agree that in the choice of an Executive each State should have an equal vote. He was persuaded that two such opposite bodies as M^r Morris had planned, could never long co-exist. Dissentions would arise, as has been seen even between the Senate and H. of Delegates in Maryland, appeals would be made to the people; and in a little time commotions would be the result--He was far from thinking the large States could subsist of themselves any more than the small; an avulsion would involve the whole in ruin, and he was determined to pursue such a scheme of Government as would secure us ag^{st} such a calamity. M^r Strong was for the co[~m]itment; and hoped the mode of constituting both branches would be referred. If they should be established on different principles, contentions would prevail, and there would never be a concurrence in necessary measures. Doc^r Williamson. If we do not concede on both sides, our business must soon be at an end. He approved of the co[~m]itment, supposing that as the Com^e w^d be a smaller body, a compromise would be pursued with more coolness. M^r Wilson objected to the Committee, because it would decide according to that very rule of voting which was opposed on one side. Experience in Cong^s had also proved the inutility of Committees consisting of members from each State. M^r Lansing w^d not oppose the commitment, though expecting little advantage from it. M^r Madison opposed the Co[~m]itment. He had rarely seen any other effect than delay from _such_ Committees in Cong^s. Any scheme of compromise that could be proposed in the Committee might as easily be proposed in the House; and the report of the Committee where it contained merely the _opinion_ of the Com^e would neither shorten the discussion, nor influence the decision of the House. M^r Gerry was for the commitm^t. Something must be done, or we shall disappoint not only America, but the whole world. He suggested a consideration of the State we should be thrown into by the failure of the Union. We should be without an Umpire to decide controversies and must be at the mercy of events. What too is to become of our treaties--what of our foreign debts, what of our domestic? We must make concessions on both sides. Without these the Constitutions of the several States would never have been formed. On the question "for co[~m]iting," generally: Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. no. P. ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. On the question for co[~m]iting it "to a member from each State," Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. The Co[~m]ittee elected by ballot, were M^r Gerry, M^r Elseworth, M^r Yates, M^r Patterson, D^r Franklin, M^r Bedford, M^r Martin, M^r Mason, M^r Davy, M^r Rutlidge, Mr. Baldwin. That time might be given to the Co[~m]ittee, and to such as chose to attend to the celebrations on the anniversary of Independence, the Convention adjourned till Thursday.[124] [124] "TUESDAY, _July 3, 1787_. "The _grand committee_ met. Mr. Gerry was chosen chairman. "The committee proceeded to consider in what manner they should discharge the business with which they were intrusted. By the proceedings in the Convention, they were so equally divided on the important question of _representation in the two branches_, that the idea of a conciliatory adjustment must have been in contemplation of the house in the appointment of this committee. But still, how to effect this salutory purpose was the question. Many of the members, impressed with the utility of a general government, connected with it the indispensable necessity of a representation from the states according to their numbers and wealth; while others, equally tenacious of the rights of the states, would admit of no other representation but such as _was strictly federal_, or, in other words, _equality of suffrage_. This brought on a discussion of the principles on which the house had divided, and a lengthy recapitulation of the arguments advanced in the house in support of these opposite propositions. As I had not openly explained my sentiments on any former occasion on this question, but constantly, in giving my vote, _showed my attachment to the national government on federal principles, I took this occasion to explain my motives_. "These remarks gave rise to a motion of Dr. Franklin, which after some modification was agreed to, and made the basis of the following report of the Committee."--Yates, _Secret Proceedings_, etc., 205. The report is given by Madison. * * * * * Hamilton, who had gone to New York, wrote to Washington under date of July 3d: "In my passage through the Jerseys, and since my arrival here, I have taken particular pains to discover the public sentiment, and I am more and more convinced that this is the critical opportunity for establishing the prosperity of this country on a solid foundation. I have conversed with men of information, not only in this city, but from different parts of the State, and they agree that there has been an astonishing revolution for the better in the minds of the people. "The prevailing apprehension among thinking men is, that the Convention, from the fear of shocking the popular opinion, will not go far enough. They seem to be convinced that a strong, well-mounted government will better suit the popular palate than one of a different complexion. Men in office are indeed taking all possible pains to give an unfavorable impression of the Convention, but the current seems to be moving strongly the other way. "A plain but sensible man, in a conversation I had with him yesterday, expressed himself nearly in this manner: The people begin to be convinced that 'their excellent form of government,' as they have been used to call it, will not answer their purpose, and that they must substitute something not very remote from that which they have lately quitted. "These appearances, though they will not warrant a conclusion that the people are yet ripe for such a plan as I advocate, yet serve to prove that there is no reason to despair of their adopting one equally energetic, if the Convention should think proper to propose it. They serve to prove that we ought not to allow too much weight to objections drawn from the supposed repugnance of the people to an efficient constitution. I confess I am more and more inclined to believe that former habits of thinking are regaining their influence with more rapidity than is generally imagined. "Not having compared ideas with you, sir, I cannot judge how far our sentiments agree; but, as I persuade myself the genuineness of my representations will receive credit with you, my anxiety for the event of the deliberations of the Convention induces me to make this communication of what appears to be the tendency of the public mind. "I own to you, sir, that I am seriously and deeply distressed at the aspect of the counsels which prevailed when I left Philadelphia. I fear we shall let slip the golden opportunity of rescuing the American empire from disunion, anarchy, and misery. "No motley or feeble measure can answer the end, or will finally receive the public support. Decision is true wisdom, and will not be less reputable to the Convention than salutary to the community. "I shall of necessity remain here ten or twelve days. If I have reason to believe that my attendance at Philadelphia will not be mere waste of time, I shall, after that period, rejoin the Convention."--_Hamilton's Works_ (Lodge). THURSDAY JULY 5^{TH} IN CONVENTION M^r Gerry delivered in from the Committee appointed on Monday last the following Report. "The Committee to whom was referred the 8^{th} Resol. of the Report from the Committee of the Whole House, and so much of the 7^{th} as has not been decided on, submit the following Report: That the subsequent propositions be recommended to the Convention on condition that both shall be generally adopted. I. that in the 1^{st} branch of the Legislature each of the States now in the Union shall be allowed 1 member for every 40,000 inhabitants of the description reported in the 7^{th} Resolution of the Com^e of the whole House: that each State not containing that number shall be allowed 1 member: that all bills for raising or appropriating money, and for fixing the salaries of the officers of the Govern^t of the U. States shall originate in the 1^{st} branch of the Legislature, and shall not be altered or amended by the 2^d branch; and that no money shall be drawn from the public Treasury but in pursuance of appropriations to be originated in the 1^{st} branch. "II. That in the 2^d branch each State shall have an equal vote."[125] [125] This report was founded on a motion in the Co[~m]itte made by D^r Franklin. It was barely acquiesced in by the members from the States opposed to an equity of votes in the 2^d branch and was evidently considered by the members on the other side, as a gaining of their point. A motion was made by M^r Sherman. He acted in the place of M^r Elseworth who was kept away by indisposition, in the Committee to the following effect "that each State should have an equal vote in the 2^d branch; provided that no decision therein should prevail unless the majority of States concurring should also comprise a majority of the inhabitants of the U. States." This motion was not much deliberated on nor approved in the Committee. A similar proviso had been proposed in the debates on the articles of Confederation in 1777, to the articles giving certain powers to "nine States." See Journals of Cong^s for 1777, p. 462.--Madison Note. M^r Ghoram observed that as the report consisted of propositions mutually conditional he wished to hear some explanations touching the grounds on which the conditions were estimated. M^r Gerry. The Committee were of different opinions as well as the Deputations from which the Com^e were taken, and agreed to the Report merely in order that some ground of accommodation might be proposed. Those opposed to the equality of votes have only assented conditionally; and if the other side do not generally agree will not be under any obligation to support the Report. Mr. Wilson thought the Committee had exceeded their powers. M^r Martin was for taking the question on the whole report. M^r Wilson was for a division of the question; otherwise it w^d be a leap in the dark. M^r Madison could not regard the privilege of originating money bills as any concession on the side of the small States. Experience proved that it had no effect. If seven States in the upper branch wished a bill to be originated, they might surely find some member from some of the same States in the lower branch who would originate it. The restriction as to amendments was of as little consequence. Amendments could be handed privately by the Senate to members in the other house. Bills could be negatived that they might be sent up in the desired shape. If the Senate should yield to the obstinacy of the 1^{st} branch the use of that body as a check would be lost. If the 1^{st} branch should yield to that of the Senate, the privilege would be nugatory. Experience had also shewn both in G. B. and the States having a similar regulation that it was a source of frequent & obstinate altercations. These considerations had produced a rejection of a like motion on a former occasion when judged by its own merits. It could not therefore be deemed any concession on the present, and left in force all the objections which had prevailed ag^{st} allowing each State an equal voice. He conceived that the Convention was reduced to the alternative of either departing from justice in order to conciliate the smaller States, and the minority of the people of the U. S. or of displeasing these by justly gratifying the larger States and the majority of the people. He could not himself hesitate as to the option he ought to make. The Convention with justice & the majority of the people on their side, had nothing to fear. With injustice and the minority on their side they had every thing to fear. It was in vain to purchase concord in the Convention on terms which would perpetuate discord among their Constituents. The Convention ought to pursue a plan which would bear the test of examination, which would be espoused & supported by the enlightened and impartial part of America, & which they could themselves vindicate and urge. It should be considered that altho' at first many may judge of the system reco[~m]ended, by their opinion of the Convention, yet finally all will judge of the Convention by the System. The merits of the System alone can finally & effectually obtain the public suffrage. He was not apprehensive that the people of the small States would obstinately refuse to accede to a Gov^t founded on just principles, and promising them substantial protection. He could not suspect that Delaware would brave the consequences of seeking her fortunes apart from the other States, rather than submit to such a Gov^t; much less could he suspect that she would pursue the rash policy of courting foreign support, which the warmth of one of her representatives (M^r Bedford) had suggested, or if she sh^d, that any foreign nation w^d be so rash as to hearken to the overture. As little could he suspect that the people of N. Jersey notwithstanding the decided tone of the gentlemen from that State, would choose rather to stand on their own legs, and bid defiance to events, than to acquiesce under an establishment founded on principles the justice of which they could not dispute, and absolutely necessary to redeem them from the exactions levied on them by the co[~m]erce of the neighbouring States. A review of other States would prove that there was as little reason to apprehend an inflexible opposition elsewhere. Harmony in the Convention was no doubt much to be desired. Satisfaction to all the States, in the first instance still more so. But if the principal States comprehending a majority of the people of the U. S. should concur in a just & judicious plan, he had the firmest hopes, that all the other States would by degrees accede to it.[126] [126] Yates, and his colleague, Lansing, left the Convention July 5, despairing of the result of its labors being satisfactory to them. Madison's speech is the last one reported by Yates.--Yates, _Secret Proceedings_, etc. M^r Butler said he could not let down his idea of the people, of America so far as to believe they would from mere respect to the Convention adopt a plan evidently unjust. He did not consider the privilege concerning money bills as of any consequence. He urged that the 2^d branch ought to represent the States according to their property. M^r Gov^r Morris, thought the form as well as the matter of the Report objectionable. It seemed in the first place to render amendments impracticable. In the next place, it seemed to involve a pledge to agree to the 2^d part if the 1^{st} sh^d be agreed to. He conceived the whole aspect of it to be wrong. He came here as a Representative of America; he flattered himself he came here in some degree as a Representative of the whole human race; for the whole human race will be affected by the proceedings of this Convention. He wished gentlemen to extend their views beyond the present moment of time; beyond the narrow limits of place from which they derive their political origin. If he were to believe some things which he had heard, he should suppose that we were assembled to truck and bargain for our particular States. He can not descend to think that any gentlemen are really actuated by these views. We must look forward to the effects of what we do. These alone ought to guide us. Much has been said of the sentiments of the people. They were unknown. They could not be known. All that we can infer is that if the plan we recommend be reasonable & right; all Who have reasonable minds and sound intentions will embrace it, notwithstanding what had been said by some gentlemen. Let us suppose that the larger States shall agree; and that the smaller refuse; and let us trace the consequences. The opponents of the system in the smaller States will no doubt make a party, and a noise for a time, but the ties of interest, of kindred & of common habits which connect them with other States will be too strong to be easily broken. In N. Jersey particularly he was sure a great many would follow the sentiments of Pen^a & N. York. This Country must be united. If persuasion does not unite it, the sword will. He begged that this consideration might have its due weight. The scenes of horror attending Civil commotion cannot be described, and the conclusion of them will be worse than the term of their continuance. The stronger party will then make traytors of the weaker; and the Gallows & Halter will finish the work of the sword. How far foreign powers would be ready to take part in the confusions he would not say. Threats that they will be invited have it seems been thrown out. He drew the melancholy picture of foreign intrusions as exhibited in the History of Germany, & urged it as a standing lesson to other nations. He trusted that the Gentlemen who may have hazarded such expressions, did not entertain them till they reached their own lips. But returning to the Report he could not think it in any respect calculated for the Public good. As the 2^d branch is now constituted, there will be constant disputes & appeals to the States which will undermine the Gen^l Government & controul & annihilate the 1^{st} branch. Suppose that the delegates from Mass^{ts} & Rho I. in the Upper House disagree, and that the former are outvoted. What Results? they will immediately declare that their State will not abide by the decision, and make such representations as will produce that effect. The same may happen as to Virg^a & other States. Of what avail then will be what is on paper. State attachments, and State importance have been the bane of this Country. We cannot annihilate; but we may perhaps take out the teeth of the serpents. He wished our ideas to be enlarged to the true interest of man, instead of being circumscribed within the narrow compass of a particular Spot. And after all how little can be the motive yielded by selfishness for such a policy. Who can say whether he himself, much less whether his children, will the next year be an inhabitant of this or that State. M^r Bedford. He found that what he had said as to the small States being taken by the hand, had been misunderstood; and he rose to explain. He did not mean that the small States would court the aid & interposition of foreign powers. He meant that they would not consider the federal compact as dissolved untill it should be so by the Acts of the large States. In this case The consequences of the breach of faith on their part, and the readiness of the small States to fulfill their engagements, would be that foreign Nations having demands on this Country would find it their interest to take the small States by the hand, in order to do themselves justice. This was what he meant. But no man can foresee to what extremities the small States may be driven by oppression. He observed also in apology that some allowance ought to be made for the habits of his profession in which warmth was natural & sometimes necessary. But is there not an apology in what was said by (M^r Gov^r Morris) that the sword is to unite: by M^r Ghorum that Delaware must be annexed to Penn^a and N. Jersey divided between Pen^a and N. York. To hear such language without emotion, would be to renounce the feelings of a man and the duty of a Citizen--As to the propositions of the Committee, the lesser States have thought it necessary to have a security somewhere. This has been thought necessary for the Executive Magistrate of the proposed Gov^t who has a sort of negative on the laws; and is it not of more importance that the States should be protected, than that the Executive branch of the Gov^t sh^d be protected. In order to obtain this, the smaller States have conceded as to the constitution of the first branch, and as to money bills. If they be not gratified by correspondent concessions as to the 2^d branch is it to be supposed they will ever accede to the plan; and what will be the consequence if nothing should be done? The condition of the U. States requires that something should be immediately done. It will be better that a defective plan should be adopted, than that none should be recommended. He saw no reason why defects might not be supplied with meetings 10, 15, or 20 years hence. M^r Elseworth said he had not attended the proceedings of the Committee, but was ready to accede to the compromise they had reported. Some compromise was necessary; and he saw none more convenient or reasonable. M^r Williamson hoped that the expressions of individuals would not be taken for the sense of their colleagues, much less of their States which was not & could not be known. He hoped also that the meaning of those expressions would not be misconstrued or exaggerated. He did not conceive that (M^r Gov^r Morris) meant that the sword ought to be drawn ag^{st} the smaller States. He only pointed out the probable consequences of anarchy in the U. S. A similar exposition ought to be given of the expressions of (M^r Ghorum). He was ready to hear the Report discussed; but thought the propositions contained in it, the most objectionable of any he had yet heard. M^r Patterson said that he had when the Report was agreed to in the Com^e reserved to himself the right of freely discussing it. He acknowledged that the warmth complained of was improper; but he thought the Sword & the Gallows little calculated to produce conviction. He complained of the manner in which M^r M and M^r Gov^r Morris had treated the small States. M^r Gerry. Tho' he had assented to the Report in the Committee, he had very material objections to it. We were however in a peculiar situation. We were neither the same Nation nor different Nations. We ought not therefore to pursue the one or the other of these ideas too closely. If no compromise should take place what will be the consequence. A secession he foresaw would take place; for some gentlemen seem decided on it: two different plans will be proposed; and the result no man could foresee. If we do not come to some agreement among ourselves some foreign sword will probably do the work for us. M^r Mason. The Report was meant not as specific propositions to be adopted; but merely as a general ground of accommodation. There must be some accommodation on this point, or we shall make little further progress in the work. Accommodation was the object of the House in the appointment of the Committee; and of the Committee in the Report they had made. And however liable the Report might be to objections, he thought it preferable to an appeal to the world by the different sides, as had been talked of by some Gentlemen. It could not be more inconvenient to any gentleman to remain absent from his private affairs, than it was for him; but he would bury his bones in this City rather than expose his Country to the Consequences of a dissolution of the Convention without any thing being done. The 1^{st} proposition in the report for fixing the representation in the 1^{st} branch, "one member for every 40,000 inhabitants," being taken up. M^r Gov^r Morris objected to that scale of apportionment. He thought property ought to be taken into the estimate as well as the number of inhabitants. Life & liberty were generally said to be of more value than property. An accurate view of the matter would nevertheless prove that property was the main object of Society. The Savage State was more favorable to liberty than the Civilized; and sufficiently so to life. It was preferred by all men who had not acquired a taste for property; it was only renounced for the sake of property which could only be secured by the restraints of regular Government. These ideas might appear to some new, but they were nevertheless just. If property then was the main object of Gov^t certainly it ought to be one measure of the influence due to those who were to be affected by the Govern^t. He looked forward also to that range of New States which w^d soon be formed in the West. He thought the rule of representation ought to be so fixed as to secure to the Atlantic States a prevalence in the National Councils. The new States will know less of the public interest than these, will have an interest in many respects different, in particular will be little scrupulous of involving the Community in wars the burdens & operations of which would fall chiefly on the maritime States. Provision ought therefore to be made to prevent the maritime States from being hereafter outvoted by them. He thought this might be easily done by irrevocably fixing the number of representatives which the Atlantic States should respectively have, and the number which each new State will have. This w^d not be unjust, as the Western settlers w^d previously know the conditions on which they were to possess their lands. It would be politic as it would reco[~m]end the plan to the present as well as future interest of the States which must decide the fate of it. M^r Rutlidge. The gentleman last up had spoken some of his sentiments precisely. Property was certainly the principal object of Society. If numbers should be made the rule of representation, the Atlantic States will be subjected to the Western. He moved that the first proposition in the report be postponed in order to take up the following viz "that the suffrages of the several States be regulated and proportioned according to the sums to be paid towards the general revenue by the inhabitants of each State respectively: that an apportionment of suffrages, according to the ratio aforesaid shall be made and regulated at the end of ---- years from the 1^{st} meeting of the Legislature of the U. S., and at the end of every ---- years but that for the present, and until the period above mentioned, the suffrages shall be for N. Hampshire ---- for Massach^{ts} ---- &c. Col. Mason said the case of new States was not unnoticed in the Committee; but it was thought and he was himself decidedly of opinion that if they made a part of the Union, they ought to be subject to no unfavorable discriminations. Obvious considerations required it. M^r Randolph concurred with Col. Mason. On Question on M^r Rutlidges motion, Mas^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. no. Mary^d no. V^a no. N. C. no. S. C. ay. Geo. not on floor. FRIDAY JULY 6^{TH} IN CONVENTION M^r Gov^r Morris moved to commit so much of the Report as relates to "1 member for every 40,000 inhabitants." His view was that they might absolutely fix the number for each State in the first instance; leaving the Legislature at liberty to provide for changes in the relative importance of the States, and for the case of new States. M^r Wilson 2^{ded} the motion; but with a view of leaving the Committee under no implied shackles. M^r Ghorum apprehended great inconveniency from fixing directly the number of Representatives to be allowed to each State. He thought the number of Inhabitants the true guide; tho' perhaps some departure might be expedient from the full proportion. The States also would vary in their relative extent by separations of parts of the largest States. A part of Virg^a is now on the point of a separation. In the province of Mayne a Convention is at this time deliberating on a separation from Mas^{ts}. In such events the number of representatives ought certainly to be reduced. He hoped to see all the States made small by proper divisions, instead of their becoming formidable as was apprehended, to the Small States. He conceived that let the Gen^l Government be modified as it might, there would be a constant tendency in the State Governm^{ts} to encroach upon it: it was of importance therefore that the extent of the States sh^d be reduced as much & as fast as possible. The stronger the Gov^t shall be made in the first instance the more easily will these divisions be effected; as it will be of less consequence in the opinion of the States whether they be of great or small extent. M^r Gerry did not think with his Colleague that the large States ought to be cut up. This policy has been inculcated by the middling and smaller States, ungenerously & contrary to the spirit of the Confederation. Ambitious men will be apt to solicit needless divisions, till the States be reduced to the size of Counties. If this policy should still actuate the small States, the large ones cou'd not confederate safely with them; but would be obliged to consult their safety by confederating only with one another. He favored the commitment and thought that Representation ought to be in the Combined ratio of numbers of Inhabitants and of wealth, and not of either singly. M^r King wished the clause to be committed, chiefly in order to detach it from the Report with which it had no connection. He thought also that the Ratio of Representation proposed could not be safely fixed, since in a century & a half our computed increase of population would carry the number of representatives to an enormous excess; that y^e number of inhabitants was not the proper index of ability & wealth; that property was the primary object of Society; and that in fixing a ratio this ought not to be excluded from the estimate.--With regard to new States, he observed that there was something peculiar in the business which had not been noticed. The U. S. were now admitted to be proprietors of the Country N. West of the Ohio. Cong^s by one of their ordinances have impoliticly laid it out into ten States, and have made it a fundamental article of compact with those who may become settlers, that as soon as the number in any one state shall equal that of the smallest of the 13 original States, it may claim admission into the Union. Delaware does not contain it is computed more than 35,000 souls, and for obvious reasons will not increase much for a considerable time. It is possible then that if this plan be persisted in by Cong^s 10 new votes may be added, without a greater addition of inhabitants than are represented by the single vote of Pen^a. The plan as it respects one of the new States is already irrevocable, the sale of the lands having commenced, and the purchasers & settlers will immediately become entitled to all the privileges of the compact. M^r Butler agreed to the Commitment if the Committee were to be left at liberty. He was persuaded that the more the subject was examined, the less it would appear that the number of inhabitants would be a proper rule of proportion. If there were no other objection the changeableness of the standard would be sufficient. He concurred with those who thought some balance was necessary between the old & the new States. He contended strenuously that property was the only just measure of representation. This was the great object of Govern^t; the great cause of war; the great means of carrying it on. M^r Pinkney saw no good reason for committing. The value of land had been found on full investigation to be an impracticable rule. The contributions of revenue including imports & exports must be too changeable in their amount; too difficult to be adjusted; and too injurious to the non-commercial States. The number of inhabitants appeared to him the only just & practicable rule. He thought the blacks ought to stand on an equality with the whites: But w^d agree to the ratio settled by Cong^s. He contended that Cong^s had no right under the articles of Confederation to authorize the admission of new States; no such case having been provided for. M^r Davy was for committing the clause in order to get at the merits of the question arising on the Report. He seemed to think that wealth or property ought to be represented in the 2^d branch; and numbers in the 1^{st} branch. On the Motion for committing as made by M^r Gov^r Morris, Mass^{ts} ay. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay. The members app^d by Ballot were M^r Gov^r Morris, M^r Gorham, M^r Randolph, M^r Rutlidge, M^r King. M^r Wilson signified that his view in agreeing to the co[~m]itm^t was that the Com^e might consider the propriety of adopting a scale similar to that established by the Constitution of Mass^{ts} which w^d give an advantage to y^e small States without substantially departing from the rule of proportion. M^r Wilson & M^r Mason moved to postpone the clause relating to money bills in order to take up the clause relating to an equality of votes in the Second branch. On the question Mass^{ts} no. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay. The clause relating to equality of votes being under consideration, Doc^r Franklin observed that this question could not be properly put by itself, the Co[~m]ittee having reported several propositions as mutual conditions of each other. He could not vote for it if separately taken, but should vote for the whole together. Col. Mason perceived the difficulty & suggested a reference of the rest of the Report to y^e Committee just appointed, that the whole might be brought into one view. M^r Randolph disliked y^e reference to that Committee, as it consisted of members from States opposed to the wishes of the smaller States, and could not therefore be acceptable to the latter. M^r Martin & M^r Jenifer moved to postpone the clause till the Com^e last appointed sh^d report. M^r Madison observed that if the uncommitted part of the Report was connected with the part just committed, it ought also to be committed; if not connected, it need not be postponed till report should be made. On the question for postponing, moved by M^r Martin & M^r Jenifer,--Con^t N. J. Del. M^d V^a Geo. ay. P^a N. C. S. C. no. Mass. N. Y. divided. The 1^{st} clause relating to the originating of money bills was then resumed. M^r Govern^r Morris was opposed to a restriction of this right in either branch, considered merely in itself and as unconnected with the point of representation in the 2^d branch. It will disable the 2^d branch from proposing its own money plans, and giving the people an opportunity of judging by comparison of the merits of those proposed by the 1^{st} branch. M^r Wilson could see nothing like a concession here on the part of the smaller States. If both branches were to say yes or no, it was of little consequence which should say yes or no first, which last. If either was indiscriminately to have the right of originating, the reverse of the Report, would he thought be most proper; since it was a maxim that the least numerous body was the fittest for deliberation; the most numerous for decision. He observed that this discrimination had been transcribed from the British into several American constitutions. But he was persuaded that on examination of the American experiments it would be found to be a trifle light as air. Nor could he ever discover the advantage of it in the Parliamentary history of G. Britain. He hoped if there was any advantage in the privilege, that it would be pointed out. M^r Williamson thought that if the privilege were not common to both branches it ought rather to be confined to the 2^d as the bills in that case would be more narrowly watched, than if they originated with the branch having most of the popular confidence. M^r Mason. The consideration which weighed with the Committee was that the 1^{st} branch would be the immediate representatives of the people, the 2^d would not. Should the latter have the power of giving away the people's money, they might soon forget the source from whence they received it. We might soon have an aristocracy. He had been much concerned at the principles which had been advanced by some gentlemen, but had the satisfaction to find they did not generally prevail. He was a friend to proportional representation in both branches; but supposed that some points must be yielded for the sake of accomodation. M^r Wilson. If he had proposed that the 2^d branch should have an independent disposal of public money, the observations of (Col. Mason) would have been a satisfactory answer. But nothing could be farther from what he had said. His question was how is the power of the 1^{st} branch increased or that of the 2^d diminished by giving the proposed privilege to the former? Where is the difference, in which branch it begins, if both must concur, in the end? M^r Gerry would not say that the concession was a sufficient one on the part of the small States. But he could not but regard it in the light of a concession. It w^d make it a constitutional principle that the 2^d branch were not possessed of the Confidence of the people in money matters, which w^d lessen their weight & influence. In the next place if the 2^d branch were dispossessed of the privilege, they w^d be deprived of the opportunity which their continuance in office 3 times as long as the 1^{st} branch would give them of making three successive essays in favor of a particular point. M^r Pinkney thought it evident that the Concession was wholly on one side, that of the large States, the privilege of originating money bills being of no account. M^r Gov^r Morris had waited to hear the good effects of the restriction. As to the alarm sounded, of an aristocracy, his creed was that there never was, nor ever will be a civilized Society without an aristocracy. His endeavor was to keep it as much as possible from doing mischief. The restriction if it has any real operation, will deprive us of the services of the 2^d branch in digesting & proposing money bills of which it will be more capable than the 1^{st} branch. It will take away the responsibility of the 2^d branch, the great security for good behavior. It will always leave a plea, as to an obnoxious money bill that it was disliked, but could not be constitutionally amended; nor safely rejected. It will be a dangerous source of disputes between the two Houses. We should either take the British Constitution altogether or make one for ourselves. The Executive there has dissolved two Houses as the only cure for such disputes. Will our Executive be able to apply such a remedy? Every law directly or indirectly takes money out of the pockets of the people. Again What use may be made of such a privilege in case of great emergency? Suppose an Enemy at the door, and money instantly & absolutely necessary for repelling him, may not the popular branch avail itself of this duress, to extort concessions from the Senate destructive of the Constitution itself. He illustrated this danger by the example of the Long Parliament's exped^{ts} for subverting the H. of Lords; concluding on the whole that the restriction would be either useless or pernicious. Doc^r Franklin did not mean to go into a justification of the Report, but as it had been asked what would be the use of restraining the 2^d branch from medling with money bills, he could not but remark that it was always of importance that the people should know who had disposed of their money, & how it had been disposed of. It was a maxim that those who feel, can best judge. This end would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people. This was his inducement to concur in the report. As to the danger or difficulty that might arise from a Negative in the 2^d where the people w^d not be proportionately represented, it might easily be got over by declaring that there should be no such negative; or if that will not do, by declaring that there shall be no such branch at all. M^r Martin said that it was understood in the Committee that the difficulties and disputes which had been apprehended, should be guarded ag^{st} in the detailing of the plan. M^r Wilson. The difficulties & disputes will increase with the attempts to define & obviate them. Queen Anne was obliged to dissolve her Parliam^t in order to terminate one of these obstinate disputes between the two Houses. Had it not been for the mediation of the Crown, no one can say what the result would have been. The point is still sub judice in England. He approved of the principles laid down by the Honble President (Doct^r Franklin) his Colleague, as to the expediency of keeping the people informed of their money affairs. But thought they would know as much, and be as well satisfied, in one way as in the other. Gen^l Pinkney was astonished that this point should have been considered as a concession. He remarked that the restriction to money bills had been rejected on the merits singly considered, by 8 States ag^{st} 3. and that the very States which now called it a concession, were then ag^{st} it as nugatory or improper in itself. On the Question whether the clause relating to money bills in the Report of the Com^e consisting of a member from each State, sh^d stand as part of the Report Mass^{ts} divid^d Con^t ay. N. Y. div^d. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. div^d A Question was then raised whether the question was carried in the affirmative; there being but 5 ays out of 11. States present. The words of the rule are (see May 28). On this question: Mas. Con^t N. J. P^a Del. M^d N. C. S. C. Geo. ay. N. Y. V^a no (In several preceding instances like votes had sub silentio been entered as decided in the affirmative.) Adjourned SATURDAY, JULY 7. IN CONVENTION. "Shall the clause allowing each State one vote in the 2^d branch, stand as part of the Report,"? being taken up-- M^r Gerry. This is the critical question. He had rather agree to it than have no accommodation. A Govern^t short of a proper national plan, if generally acceptable, would be preferable to a proper one which if it could be carried at all, would operate on discontented States. He thought it would be best to suspend the question till the Comm^e yesterday appointed, should make report. M^r Sherman Supposed that it was the wish of every one that some Gen^l Gov^t should be established. An equal vote in the 2^d branch would, he thought, be most likely to give it the necessary vigor. The small States have more vigor in their Gov^{ts} than the large ones, the more influence therefore the large ones have, the weaker will be the Gov^t. In the large States it will be most difficult to collect the real & fair sense of the people. Fallacy & undue influence will be practised with most success; and improper men will most easily get into office. If they vote by States in the 2^d branch, and each State has an equal vote, there must be always a majority of States as well as a majority of the people on the side of public measures, & the Gov^t will have decision and efficacy. If this be not the case in the 2^d branch there may be a majority of States ag^{st} public measures, and the difficulty of compelling them to abide by the public determination, will render the Government feebler than it has ever yet been. M^r Wilson was not deficient in a conciliating temper, but firmness was sometimes a duty of higher obligation. Conciliation was also misapplied in this instance. It was pursued here rather among the Representatives, than among the Constituents; and it w^d be of little consequence if not established among the latter; and there could be little hope of its being established among them if the foundation should not be laid in justice and right. On Question shall the words stand as part of the Report? Mass^{ts} div^d. Con^t ay. N. Y. ay. N. J, ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. div^d (Note. several votes were given here in the affirmative or were div^d because another final question was to be taken on the whole report.) M^r Gerry[127] thought it would be proper to proceed to enumerate & define the powers to be vested in the Gen^l Gov^t before a question on the report should be taken as to the rule of representation in the 2^d branch. [127] King gives the three speeches of Gerry, Madison and Patterson as follows: "_Gerry._ I agree to the measure, provided that the first Br. (H. of Reps.) shall originate money bills and money appropriations. The prejudices as well as the interest of our Constituents must be regarded--two or three thousand men are in office in the States--their influence will be in favor of an Equality of votes among the States. "_Madison._ Equality in the Senate will enable a minority to hold a majority, and to oblige them to submit to their interests, or they will withdraw their assent to measures essential and necessary to the general Good. I have known one man, when the State was represented by only two, and they were divided, oppose six States in Congress on an important occasion for three days, and finally compel them to gratify his caprice in order to obtain his suffrage. The Senate will possess certain exclusive Powers, such as the appointments to office, if the States have equal votes; a minority of People will appoint the Great Offices. Besides the small States may be near the Seat of Govt.--a bare Quorum of the H. of R. may be easily assembled, and carry a bill against the sense of a majority if all were present, and the Senate, tho' all were present, might confirm such Bill. Virginia has objected to every addition of the powers of Congress, because she has only 1/13 of the Power when she ought to have one sixth. "_Paterson._ I hope the question will be taken: if we do not give equal votes in the Senate to the States, the small States agreeing that money Bills and appropriations shall originate in the H. of Reps., elected according to numbers, it must not be expected that the small States will agree to the amendments of the Confederation. Let us decide this question and lose no more time. I think that I shall vote against the provision, because I think that the exclusive originating of money Bills & appropriations by the H. of Reps. is giving up too much on the part of the small States."--King's _Life and Correspondence of Rufus King_, I., 613. M^r Madison, observed that it w^d be impossible to say what powers could be safely & properly vested in the Gov^t before it was known, in what manner the States were to be represented in it. He was apprehensive that if a just representation were not the basis of the Gov^t it would happen, as it did when the Articles of Confederation were depending, that every effectual prerogative would be withdrawn or withheld, and the New Gov^t w^d be rendered as impotent and as shortlived as the old. M^r Patterson would not decide whether the privilege concerning money bills were a valuable consideration or not: But he considered the mode & rule of representation in the 1^{st} branch as fully so; and that after the establishment of that point, the small States would never be able to defend themselves without an equality of votes in the 2^d branch. There was no other ground of accommodation. His resolution was fixt. He would meet the large States on that ground and no other. For himself he should vote ag^{st} the Report, because it yielded too much. M^r Gov^r Morris. He had no resolution unalterably fixed except to do what should finally appear to him right. He was ag^{st} the Report because it maintained the improper constitution of the 2^d branch. It made it another Congress, a mere whisp of straw. It had been s^d (by M^r Gerry) that the new Govern^t would be partly national, partly federal; that it ought in the first quality to protect individuals; in the second, the States. But in what quality was it to protect the aggregate interest of the whole. Among the many provisions which had been urged, he had seen none for supporting the dignity and splendor of the American Empire. It had been one of our greatest misfortunes that the great objects of the nation had been sacrificed constantly to local views; in like manner as the general interests of States had been sacrificed to those of the Counties. What is to be the check in the Senate? none; unless it be to keep the majority of the people from injuring particular States. But particular States ought to be injured for the sake of a majority of the people, in case their conduct should deserve it. Suppose they should insist on claims evidently unjust, and pursue them in a manner detrimental to the whole body. Suppose they should give themselves up to foreign influence. Ought they to be protected in such cases. They were originally nothing more than colonial corporations. On the declaration of Independence, a Governm^t was to be formed. The small States aware of the necessity of preventing anarchy, and taking advantage of the moment, extorted from the large ones an equality of votes. Standing now on that ground, they demand under the new system greater rights as men, than their fellow Citizens of the large States. The proper answer to them is that the same necessity of which they formerly took advantage, does not now exist, and that the large States are at liberty now to consider what is right, rather than what may be expedient. We must have an efficient Gov^t and if there be an efficiency in the local Gov^{ts} the former is impossible. Germany alone proves it. Notwithstanding their common diet, notwithstanding the great prerogatives of the Emperor as head of the Empire, and his vast resources, as sovereign of his particular dominions, no union is maintained; foreign influence disturbs every internal operation, & there is no energy whatever in the General Governm^t. Whence does this proceed? From the energy of the local authorities; from its being considered of more consequence to support the Prince of Hesse, than the Happiness of the people of Germany. Do Gentlemen wish this to be y^e case here. Good God, Sir, is it possible they can so delude themselves. What if all the Charters & Constitutions of the States were thrown into the fire, and all their demagogues into the Ocean. What would it be to the happiness of America. And will not this be the case here if we pursue the train in w^{ch} the business lies. We shall establish an Aulic Council without an Emperor to execute its decrees. The same circumstances which unite the people here, unite them in Germany. They have there a common language, a common law, common usages and manners, and a common interest in being united; Yet their local jurisdictions destroy every tie. The case was the same in the Grecian States. The United Netherlands are at this time torn in factions. With these examples before our eyes shall we form establishments which must necessarily produce the same effects. It is of no consequence from what districts the 2^d branch shall be drawn, if it be so constituted as to yield an asylum ag^{st} these evils. As it is now constituted he must be ag^{st} its being drawn from the States in equal portions. But still he was ready to join in devising such an amendment of the plan, as will be most likely to secure our liberty & happiness. M^r Sherman & M^r Elseworth moved to postpone the Question on the Report from the Committee of a member from each State, in order to wait for the Report from the Com^e of 5 last appointed. Mass^{ts} ay. Con^t ay. N. Y. no. N. J. ay. P^a ay. Del. ay. Maryland ay. V^a no. N. C. no. S. C. no. Geo. no. Adj^d. MONDAY JULY 9^{TH} IN CONVENTION. M^r Daniel Carroll, from Maryland took his seat. M^r Gov^r Morris delivered a report from the Com^e of 5 members to whom was committed the clause in the Report of the Com^e consisting of a member from each State, stating the proper ratio of Representatives in the 1^{st} branch, to be as 1 to every 40,000 inhabitants, as follows viz "The Committee to whom was referred the 1^{st} clause of the 1^{st} proposition reported from the grand Committee, beg leave to report: I. that in the 1^{st} meeting of the Legislature the 1^{st} branch thereof consist of 56. members of which Number N. Hampshire shall have 2, Mass^{ts} 7, R. I^d 1, Con^t 4, N. Y. 5, N. J. 3, P^a 8, Del. 1, M^d 4, V^a 9, N. C. 5, S. C. 5, Geo. 2. II. But as the present situation of the States may probably alter as well in point of wealth as in the number of their inhabitants, that the Legislature be authorized from time to time to augment y^e number of Representatives. And in case any of the States shall hereafter be divided, or any two or more States united, or any new States created within the limits of the United States, the Legislature shall possess authority to regulate the number of Representatives in any of the foregoing cases, upon the principles of their wealth and number of inhabitants." M^r Sherman wished to know on what principles or calculations the Report was founded. It did not appear to correspond with any rule of numbers, or of any requisition hitherto adopted by Cong^s M^r Gorham. Some provision of this sort was necessary in the outset. The number of blacks & whites with some regard to supposed wealth was the general guide. Fractions could not be observed. The Legisl^{re} is to make alterations from time to time as justice & propriety may require. Two objections prevailed ag^{st} the rate of 1 member for every 40,000 inh^{ts}. The 1^{st} was that the Representation would soon be too numerous: the 2^d that the West^n States who may have a different interest, might if admitted on that principle by degrees, outvote the Atlantic. Both these objections are removed. The number will be small in the first instance and may be continued so. And the Atlantic States having y^e Gov^t in their own hands, may take care of their own interest, by dealing out the right of Representation in safe proportions to the Western States. These were the views of the Committee. M^r L. Martin wished to know whether the Com^e were guided in the ratio, by the wealth or number of inhabitants, of the States, or by both; noting its variations from former apportionments by Cong^s M^r Gov^r Morris & M^r Rutlidge moved to postpone the 1^{st} paragraph relating to the number of members to be allowed each State in the first instance, and to take up the 2^d paragraph authorizing the Legisl^{re} to alter the number from time to time according to wealth & inhabitants. The motion was agreed to nem. con. On Question on the 2^d parag^h taken without any debate Mass^{ts} ay. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Sherman moved to refer the 1^{st} part apportioning the Representatives, to a Comm^e of a member from each State. M^r Gov^r Morris seconded the motion; observing that this was the only case in which such committees were useful. M^r Williamson thought it would be necessary to return to the rule of numbers, but that the Western States stood on different footing. If their property shall be rated as high as that of the Atlantic States, then their representation ought to hold a like proportion. Otherwise if their property was not to be equally rated. M^r Gov^r Morris. The Report is little more than a guess. Wealth was not altogether disregarded by the Com^e. Where it was apparently in favor of one State, whose n^{os} were superior to the numbers of another, by a fraction only, a member extraordinary was allowed to the former: and so vice versa. The Committee meant little more than to bring the matter to a point for the consideration of the House. M^r Reed asked why Georgia was allowed 2 members, when her number of inhabitants had stood below that of Delaware. M^r Gov^r Morris. Such is the rapidity of the population of that State, that before the plan takes effect, it will probably be entitled to 2 Representatives. M^r Randolph, disliked the Report of the Com^e but had been unwilling to object to it. He was apprehensive that as the number was not be changed, till the Nat^l Legislature should please, a pretext would never be wanting to postpone alterations, and keep the power in the hands of those possessed of it. He was in favor of the Commitm^t to a member from each State. M^r Patterson considered the proposed estimate for the future according to the combined rules of numbers and wealth, as too vague. For this reason N. Jersey was ag^{st} it. He could regard negroes slaves in no light but as property. They are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, & like other property entirely at the will of the Master. Has a man in Virg^a a number of votes in proportion to the number of his slaves? And if negroes are not represented in the States to which they belong, why should they be represented in the Gen^l Gov^t. What is the true principle of Representation? It is an expedient by which an assembly of certain individ^{ls} chosen by the people is substituted in place of the inconvenient meeting of the people themselves. If such a meeting of the people was actually to take place, would the slaves vote? They would not. Why then sh^d they be represented. He was also ag^{st} such an indirect encouragem^t of the slave trade; observing that Cong^s in their act relating to the change of the 8 art: of Confed^n had been ashamed to use the term "slaves" & had substituted a description. M^r Madison reminded M^r Patterson that his doctrine of Representation which was in its principle the genuine one, must forever silence the pretensions of the small States to an equality of votes with the large ones. They ought to vote in the same proportion in which their Citizens would do, if the people of all the States were collectively met. He suggested as a proper ground of compromise, that in the first branch the States should be represented according to their number of free inhabitants; And in the 2^d which had for one of its primary objects the guardianship of property, according to the whole number, including slaves. M^r Butler urged warmly the justice & necessity of regarding wealth in the apportionment of Representation. M^r King had always expected that as the Southern States are the richest, they would not league themselves with the North^n unless some respect were paid to their superior wealth. If the latter expect those preferential distinctions in Commerce, & other advantages which they will derive from the connexion they must not expect to receive them without allowing some advantages in return. Eleven out of 13 of the States had agreed to consider Slaves in the apportionment of taxation; and taxation and Representation ought to go together. On the question for committing the first paragraph of the Report to a member from each State Mass^{ts} ay. Con^t ay. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay. The Com^e appointed were M^r King, M^r Sherman, M^r Yates, M^r Brearly, M^r Gov^r Morris, M^r Reed, M^r Carrol, M^r Madison, M^r Williamson, M^r Rutlidge, M^r Houston. Adj^d. TUESDAY JULY 10. IN CONVENTION. M^r King reported from the Com^e yesterday appointed that the States at the 1^{st} meeting of the General Legislature, should be represented by 65 members, in the following proportions, to wit N. Hampshire by 3, Mass^{ts} 8, R. Is^d 1, Con^t 5, N. Y. 6, N. J. 4, P^a 8, Del. 1, M^d 6, V^a 10, N. C. 5, S. C. 5, Georgia 3. M^r Rutlidge moved that N. Hampshire be reduced from 3 to 2. members. Her numbers did not entitle her to 3 and it was a poor State. Gen^l Pinkney seconds the motion. M^r King. N. Hampshire has probably more than 120,000 Inhab^{ts} and has an extensive Country of tolerable fertility. Its inhab^{ts} therefore may be expected to increase fast. He remarked that the four Eastern States, having 800,000 souls, have 1/3 fewer representatives than the four Southern States, having not more than 700,000 souls, rating the blacks as 5 for 3. The Eastern people will advert to these circumstances, and be dissatisfied. He believed them to be very desirous of uniting with their Southern brethren, but did not think it prudent to rely so far on that disposition as to subject them to any gross inequality. He was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great & small States; but between the Southern & Eastern. For this reason he had been ready to yield something in the proportion of representatives for the security of the Southern. No principle would justify the giving them a majority. They were brought as near an equality as was possible. He was not averse to giving them a still greater security, but did not see how it could be done. Gen^l Pinkney. The Report before it was committed was more favorable to the S. States than as it now stands. If they are to form so considerable a minority, and the regulation of trade is to be given to the Gen^l Government, they will be nothing more than overseers for the Northern States. He did not expect the S. States to be raised to a majority of representatives, but wished them to have something like an equality. At present by the alterations of the Com^e in favor of the N. States they are removed farther from it than they were before. One member indeed had been added to Virg^a which he was glad of as he considered her as a Southern State. He was glad also that the members of Georgia were increased. M^r Williamson was not for reducing N. Hampshire from 3 to 2, but for reducing some others. The South^n Interest must be extremely endangered by the present arrangement. The North^n States are to have a majority in the first instance and the means of perpetuating it. M^r Dayton observed that the line between North^n & Southern interest had been improperly drawn; that P^a was the dividing State, there being six on each side of her. Gen^l Pinkney urged the reduction, dwelt on the superior wealth of the Southern States, and insisted on its having its due weight in the Government. M^r Gov^r Morris regretted the turn of the debate. The States he found had many Representatives on the floor. Few he fears were to be deemed the Representatives of America. He thought the Southern States have by the report more than their share of representation. Property ought to have its weight, but not all the weight. If the South^n States are to supply money. The North^n States are to spill their blood. Besides, the probable Revenue to be expected from the S. States has been greatly overrated. He was ag^{st} reducing N. Hampshire. M^r Randolph was opposed to a reduction of N. Hampshire, not because she had a full title to three members; but because it was in his contemplation 1. to make it the duty instead of leaving it in the discretion of the Legislature to regulate the representation by a periodical census. 2. to require more than a bare majority of votes in the Legislature in certain cases & particularly in commercial cases. On the question for reducing N. Hampshire from 3 to 2 Represent^s it passed in the negative Mass^{ts} no. Con^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no.[128] [128] In printed Journal. N. C. no. Geo. ay. Note in Madison's hand. Gen^l Pinkney and M^r Alex^r Martin moved that 6 Rep^s instead of 5 be allowed to N. Carolina. On the Question, it passed in the negative Mass^{ts} no. Con^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. Gen^l Pinkney & M^r Butler made the same motion in favor of S. Carolina On the Question it passed in the negative Mass^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay. Gen^l Pinckney & M^r Houston moved that Georgia be allowed 4 instead of 3 Rep^s urging the unexampled celerity of its population. On the Question, it passed in the Negative Mass^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Madison, moved that the number allowed to each State be doubled. A _majority_ of a _Quorum_ of _65_ members, was too small a number to represent the whole inhabitants of the U. States; They would not possess enough of the confidence of the people, and w^d be too sparsely taken from the people, to bring with them all the local information which would be frequently wanted. Double the number will not be too great, even with the future additions from New States. The additional expence was too inconsiderable to be regarded in so important a case. And as far as the augmentation might be unpopular on that score, the objection was overbalanced by its effect on the hopes of a greater number of the popular candidates. M^r Elseworth urged the objection of expence, & that the greater the number, the more slowly would the business proceed; and the less probably be decided as it ought, at last. He thought the number of Representatives too great in most of the State Legislatures; and that a large number was less necessary in the Gen^l Legislature than in those of the States, as its business would relate to a few great national Objects only. M^r Sherman would have preferred 50 to 65. The great distance they will have to travel will render their attendance precarious and will make it difficult to prevail on a sufficient number of fit men to undertake the service. He observed that the expected increase from new States also deserved consideration. M^r Gerry was for increasing the number beyond 65. The larger the number, the less the danger of their being corrupted. The people are accustomed to & fond of a numerous representation, and will consider their rights as better secured by it. The danger of excess in the number may be guarded ag^{st} by fixing a point within which the number shall always be kept. Col. Mason admitted that the objection drawn from the consideration of expence, had weight both in itself, and as the people might be affected by it. But he thought it outweighed by the objections ag^{st} the smallness of the number. 38, will he supposes, as being a majority of 65. form a quorum. 20 will be a majority of 38. This was certainly too small a number to make laws for America. They would neither bring with them all the necessary information relative to various local interests, nor possess the necessary confidence of the people. After doubling the number, the laws might still be made by so few as almost to be objectionable on that account. M^r Read was in favor of the Motion. Two of the States (Del. & R. I.) would have but a single member if the aggregate number should remain at 65. and in case of accident to either of these one State w^d have no representative present to give explanations or informations of its interests or wishes. The people would not place their confidence in so small a number. He hoped the objects of the Gen^l Gov^t would be much more numerous than seemed to be expected by some gentlemen, and that they would become more & more so. As to New States the highest number of Rep^s for the whole might be limited, and all danger of excess thereby prevented. M^r Rutlidge opposed the motion. The Representatives were too numerous in all the States. The full number allotted to the States may be expected to attend, & the lowest possible quorum sh^d not therefore be considered. The interests of their Constituents will urge their attendance too strongly for it to be omitted: and he supposed the Gen^l Legislature would not sit more than 6 or 8 weeks in the year. On the Question for doubling the number, it passed in the negative Mas^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no. On the question for agreeing to the apportionment of Rep^s as amended by the last committee, it passed in the affirmative Mas. ay. Con^t ay. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no. M^r Broom gave notice to the House that he had concurred with a reserve to himself of an intention to claim for his State an equal voice in the 2^d branch; which he thought could not be denied after this concession of the small States as to the first branch. M^r Randolph moved as an amendment to the report of the Comm^e of five "that in order to ascertain the alterations in the population & wealth of the several States the Legislature should be required to cause a census, and estimate to be taken within one year after its first meeting; and every ---- years thereafter, and that the Legisl^{re} arrange the Representation accordingly." M^r Gov^r Morris opposed it as fettering the Legislature too much. Advantage may be taken of it in time of war or the apprehension of it, by new States to extort particular favors. If the mode was to be fixed for taking a Census, it might certainly be extremely inconvenient: if unfixt the Legislature may use such a mode as will defeat the object: and perpetuate the inequality. He was always ag^{st} such shackles on the Legisl^{re}. They had been found very pernicious in most of the State Constitutions. He dwelt much on the danger of throwing such a preponderancy into the Western Scale, suggesting that in time the Western people w^d outnumber the Atlantic States. He wished therefore to put it in the power of the latter to keep a majority of votes in their own hands. It was objected he said that if the Legisl^{re} are left at liberty, they will never readjust the Representation. He admitted that this was possible; but he did not think it probable unless the reasons ag^{st} a revision of it were very urgent & in this case, it ought not to be done. It was moved to postpone the proposition of M^r Randolph in order to take up the following, viz. "that the Committee of Eleven, to whom was referred the report of the Committee of five on the subject of Representation, be requested to furnish the Convention with the principles on which they grounded the Report," which was disagreed to; S. C. alone voting in the affirmative. Adjourned WEDNESDAY JULY 11. IN CONVENTION. M^r Randolph's motion requiring the Legisl^{re} to take a periodical census for the purpose of redressing inequalities in the Representation was resumed. M^r Sherman was ag^{st}. Shackling the Legislature too much. We ought to choose wise & good men, and then confide in them. M^r Mason. The greater the difficulty we find in fixing a proper rule of Representation, the more unwilling ought we to be, to throw the task from ourselves on the Gen^l Legisl^{re}. He did not object to the conjectural ratio which was to prevail in the outset; but considered a Revision from time to time according to some permanent & precise standard as essential to y^e fair representation required in the 1^{st} branch. According to the present population of America, the North^n part of it had a right to preponderate, and he could not deny it. But he wished it not to preponderate hereafter when the reason no longer continued. From the nature of man we may be sure that those who have power in their hands will not give it up while they can retain it. On the contrary we know that they will always when they can rather increase it. If the S. States therefore should have 3/4 of the people of America within their limits, the Northern will hold fast the majority of Representatives. 1/4 will govern the 3/4. The S. States will complain; but they may complain from generation to generation without redress. Unless some principle therefore which will do justice to them hereafter shall be inserted in the Constitution, disagreable as the declaration was to him, he must declare he could neither vote for the system here, nor support it, in his State. Strong objections had been drawn from the danger to the Atlantic interests from new Western States. Ought we to sacrifice what we know to be right in itself, lest it should prove favorable to States which are not yet in existence. If the Western States are to be admitted into the Union, as they arise, they must, he w^d repeat, be treated as equals, and subjected to no degrading discriminations. They will have the same pride & other passions which we have and will either not unite with or will speedily revolt from the Union, if they are not in all respects placed on an equal footing with their brethren. It has been said they will be poor, and unable to make equal contributions to the general Treasury. He did not know but that in time they would be both more numerous & more wealthy than their Atlantic brethren. The extent & fertility of their soil, made this probable; and though Spain might for a time deprive them of the natural outlet for their productions, yet she will, because she must, finally yield to their demands. He urged that numbers of inhabitants; though not always a precise standard of wealth was sufficiently so for every substantial purpose. M^r Williamson was for making it a duty of the Legislature to do what was right & not leaving it at liberty to do or not to do it. He moved that M^r Randolph's propositions be postpon^d in order to consider the following "that in order to ascertain the alterations that may happen in the population & wealth of the several States, a census shall be taken of the free white inhabitants and 3/5^{ths} of those of other descriptions on the 1^{st} year after this Government shall have been adopted and every ---- year thereafter; and that the Representation be regulated accordingly." M^r Randolph agreed that M^r Williamson's proposition should stand in the place of his. He observed that the ratio fixt for the 1^{st} meeting was a mere conjecture, that it placed the power in the hands of that part of America, which could not always be entitled to it, that this power would not be voluntarily renounced; and that it was consequently the duty of the Convention to secure its renunciation when justice might so require; by some constitutional provisions. If equality between great & small States be inadmissible, because in that case unequal numbers of Constituents w^d be represented by equal number of votes; was it not equally inadmissible that a larger & more populous district of America should hereafter have less representation, than a smaller & less populous district. If a fair representation of the people be not secured, the injustice of the Gov^t will shake it to its foundations. What relates to suffrage is justly stated by the celebrated Montesquieu, as a fundamental article in Republican Gov^t. If the danger suggested by M^r Gov^r Morris be real, of advantage being taken of the Legislature in pressing moments, it was an additional reason, for tying their hands in such a manner that they could not sacrifice their trust to momentary considerations. Cong^s have pledged the public faith to New States, that they shall be admitted on equal terms. They never would or ought to accede on any other. The census must be taken under the direction of the General Legislature. The States will be too much interested to take an impartial one for themselves. M^r Butler & Gen^l Pinkney insisted that blacks be included in the rule of Representation _equally_ with the whites; and for that purpose moved that the words "three-fifths" be struck out. M^r Gerry thought that 3/5 of them was to say the least the full proportion that could be admitted. M^r Ghorum. This ratio was fixed by Cong^s as a rule of taxation. Then it was urged by the Delegates representing the States having slaves that the blacks were still more inferior to freemen. At present when the ratio of representation is to be established, we are assured that they are equal to freemen. The arguments on y^e former occasion convinced him that 3/5 was pretty near the just proportion and he should vote according to the same opinion now. M^r Butler insisted that the labour of a slave in S. Carol^a was as productive & valuable as that of a freeman in Mass^{ts}, that as wealth was the great means of defence and utility to the Nation they were equally valuable to it with freemen; and that consequently an equal representation ought to be allowed for them in a Government which was instituted principally for the protection of property, and was itself to be supported by property. M^r Mason could not agree to the motion, notwithstanding it was favorable to Virg^a because he thought it unjust. It was certain that the slaves were valuable, as they raised the value of land, increased the exports & imports, and of course the revenue, would supply the means of feeding & supporting an army, and might in cases of emergency become themselves soldiers. As in these important respects they were useful to the Community at large, they ought not to be excluded from the estimate of Representation. He could not however regard them as equal to freemen and could not vote for them as such. He added as worthy of remark, that the Southern States have this peculiar species of property over & above the other species of property common to all the States. M^r Williamson reminded M^r Ghorum that if the South^n States contended for the inferiority of blacks to whites when taxation was in view, the Eastern States on the same occasion contended for their equality. He did not however either then or now concur in either extreme, but approved of the ratio of 3/5. On M^r Butler's motion for considering blacks as equal to Whites in the apportionm^t of Representation Mass^{ts} no. Con^t no. (N. Y. not on floor). N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. M^r Gov^r Morris said he had several objections to the proposition of M^r Williamson. 1. It fettered the Legislature too much. 2. it would exclude some States altogether who would not have a sufficient number to entitle them to a single Representative. 3. it will not consist with the Resolution passed on Saturday last authorizing the Legislature to adjust the Representation from time to time on the principles of population & wealth or with the principles of equity. If slaves were to be considered as inhabitants, not as wealth then the s^d Resolution would not be pursued. If as wealth, then why is no other wealth but slaves included? These objections may perhaps be removed by amendments. His great objection was that the number of inhabitants was not a proper standard of wealth. The amazing difference between the comparative numbers & wealth of different countries, rendered all reasoning superfluous on the subject. Numbers might with greater propriety be deemed a measure of strength, than of wealth, yet the late defence made by G. Britain, ag^{st} her numerous enemies proved in the clearest manner, that it is entirely fallacious even in this respect. M^r King thought there was great force in the objections of M^r Gov^r Morris: he would however accede to the proposition for the sake of doing something. M^r Rutlidge contended for the admission of wealth in the estimate by which Representation should be regulated. The Western States will not be able to contribute in proportion to their numbers; they sh^d not therefore be represented in that proportion. The Atlantic States will not concur in such a plan. He moved that "at the end of ---- years after the 1^{st} meeting of the Legislature, and of every ---- years thereafter, the Legislature shall proportion the Representation according to the principles of wealth & population." M^r Sherman thought the number of people alone the best rule for measuring wealth as well as representation; and that if the Legislature were to be governed by wealth, they would be obliged to estimate it by numbers. He was at first for leaving the matter wholly to the discretion of the Legislature; but he had been convinced by the observation of (M^r Randolph & M^r Mason), that the _periods_ & the _rule_, of revising the Representation ought to be fixt by the Constitution. M^r Reed thought the Legislature ought not to be too much shackled. It would make the Constitution like Religious Creeds, embarrassing to those bound to conform to them & more likely to produce dissatisfaction and scism, than harmony and union. M^r Mason objected to M^r Rutlidge's motion, as requiring of the Legislature something too indefinite & impracticable, and leaving them a pretext for doing nothing. M^r Wilson had himself no objection to leaving the Legislature entirely at liberty. But considered wealth as an impracticable rule. M^r Ghorum. If the Convention who are comparatively so little biassed by local views are so much perplexed, How can it be expected that the Legislature hereafter under the full biass of those views, will be able to settle a standard. He was convinced by the arguments of others & his own reflections, that the Convention ought to fix some standard or other. M^r Gov^r Morris. The arg^{ts} of others & his own reflections had led him to a very different conclusion. If we can't agree on a rule that will be just at this time, how can we expect to find one that will be just in all times to come. Surely those who come after us will judge better of things present, than we can of things future. He could not persuade himself that numbers would be a just rule at any time. The remarks of (M^r Mason) relative to the Western Country had not changed his opinion on that head. Among other objections it must be apparent they would not be able to furnish men equally enlightened, to share in the administration of our common interests. The Busy haunts of men not the remote wilderness, was the proper school of political Talents. If the Western people get the power into their hands they will ruin the Atlantic interests. The Back members are always most averse to the best measures. He mentioned the case of Pen^a formerly. The lower part of the State had y^e power in the first instance. They kept it in y^r own hands & the country was y^e better for it. Another objection with him ag^{st} admitting the blacks into the census, was that the people of Pen^a would revolt at the idea of being put on a footing with slaves. They would reject any plan that was to have such an effect. Two objections had been raised ag^{st} leaving the adjustment of the Representation from time, to time, to the discretion of the Legislature. The 1. was, they would be unwilling to revise it at all. The 2 that by referring to _wealth_ they would be bound by a rule which if willing, they would be unable to execute. The 1^{st} obj^n distrusts their fidelity. But if their duty, their honor & their oaths will not bind them, let us not put into their hands our liberty, and all our other great interests; let us have no Gov^t at all. 2. If these ties will bind them, we need not distrust the practicability of the rule. It was followed in part by the Com^e in the apportionment of Representatives yesterday reported to the House. The best course that could be taken would be to leave the interests of the people to the Representatives of the people. M^r Madison was not a little surprised to hear this implicit confidence urged by a member who on all occasions, had inculcated so strongly, the political depravity of men, and the necessity of checking one vice and interest by opposing to them another vice & interest. If the Representatives of the people would be bound by the ties he had mentioned, what need was there of a Senate? What of a Revisionary power? But his reasoning was not only inconsistent with his former reasoning, but with itself. At the same time that he recommended this implicit confidence to the Southern States in the Northern majority, he was still more zealous in exhorting all to a jealousy of a Western Majority. To reconcile the gentl^n with himself, it must be imagined that he determined the human character by the points of the compass. The truth was that all men having power ought to be distrusted to a certain degree. The case of Pen^a had been mentioned where it was admitted that those who were possessed of the power in the original settlement, never admitted the new settlem^{ts} to a due share of it. England was a still more striking example. The power there had long been in the hands of the boroughs, of the minority; who had opposed & defeated every reform which had been attempted. Virg^a was in a lesser degree another example. With regard to the Western States, he was clear & firm in opinion, that no unfavorable distinctions were admissible either in point of justice or policy. He thought also that the hope of contributions to the Treas^y from them had been much underrated. Future contributions it seemed to be understood on all hands would be principally levied on imports & exports. The extent and fertility of the Western Soil would for a long time give to agriculture a preference over manufactures. Trials would be repeated till some articles could be raised from it that would bear a transportation to places where they could be exchanged for imported manufactures. Whenever the Mississippi should be opened to them, which would of necessity be y^e case as soon as their population would subject them to any considerable share of the Public burden, imposts on their trade could be collected with less expence & greater certainty, than on that of the Atlantic States. In the mean time, as their supplies must pass through the _Atlantic States_, their contributions would be levied in the same manner with those of the Atlantic States. He could not agree that any substantial objection lay ag^{st} fix^g numbers for the perpetual standard of Representation. It was said that Representation & taxation were to go together; that taxation and wealth ought to go together, that population & wealth were not measures of each other. He admitted that in different climates, under different forms of Gov^t and in different stages of civilization the inference was perfectly just. He would admit that in no situation, numbers of inhabitants were an accurate measure of wealth. He contended however that in the U. States it was sufficiently so for the object in contemplation. Altho' their climate varied considerably, yet as the Gov^{ts} the laws, and the manners of all were nearly the same, and the intercourse between different parts perfectly free, population, industry, arts, and the value of labour, would constantly tend to equalize themselves. The value of labour might be considered as the principal criterion of wealth and ability to support taxes; and this would find its level in different places where the intercourse should be easy & free, with as much certainty as the value of money or any other thing. Wherever labour would yield most, people would resort, till the competition should destroy the inequality. Hence it is that the people are constantly swarming from the more to the less populous places--from Europe to Am^a--from the North^n & Middle parts of the U. S. to the Southern & Western. They go where land is cheaper, because there labour is dearer. If it be true that the same quantity of produce raised on the banks of the Ohio is of less value, than on the Delaware, it is also true that the same labor will raise twice or thrice, the quantity in the former, that it will raise in the latter situation. Col. Mason. Agreed with M^r Gov^r Morris that we ought to leave the interests of the people to the Representatives of the people; but the objection was that the Legislature would cease to be the Representatives of the people. It would continue so no longer than the States now containing a majority of the people should retain that majority. As soon as the Southern & Western population should predominate, which must happen in a few years, the power w^d be in the hands of the minority, and would never be yielded to the majority, unless provided for by the Constitution. On the Question for postponing M^r Williamson's motion, in order to consider that of M^r Rutlidge, it passed in the negative, Mass^{ts} ay. Con^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay. On the question on the first clause of M^r Williamson's motion as to taking a census of the free inhabitants, it passed in the affirmative; Mass^{ts} ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. the next clause as to 3/5 of the negroes considered. M^r King being much opposed to fixing numbers as the rule of representation, was particularly so on account of the blacks. He thought the admission of them along with Whites at all, would excite great discontents among the States having no slaves. He had never said as to any particular point that he would in no event acquiesce in & support it; but he w^d say that if any in case such a declaration was to be made by him, it would be in this. He remarked that in the temporary allotment of Representatives made by the Committee, the Southern States had received more than the number of their white & Three fifths of their black inhabitants entitled them to. M^r Sherman. S. Carol^a had not more beyond her proportion than N. York & N. Hampshire, nor either of them more than was necessary in order to avoid fractions or reducing them below their proportions. Georgia had more; but the rapid growth of that State seemed to justify it. In general the allotment might not be just, but considering all circumstances, he was satisfied with it. M^r Ghorum. supported the propriety of establishing numbers as the rule. He said that in Mass^{ts} estimates had been taken in the different towns, and that persons had been curious enough to compare these estimates with the respective numbers of people; and it had been found even including Boston, that the most exact proportion prevailed between numbers & property. He was aware that there might be some weight in what had fallen from his colleague, as to the umbrage which might be taken by the people of the Eastern States. But he recollected that when the proposition of Cong^s for changing the 8^{th} art: of the Confed^n was before the Legislature of Mass^{ts} the only difficulty then was to satisfy them that the negroes ought not to have been counted equally with whites instead of being counted in ratio of three-fifths only.[129] [129] They were then to have been a rule of taxation only. Note in Madison's handwriting. M^r Wilson did not well see on what principle the admission of blacks in the proportion of three fifths could be explained. Are they admitted as Citizens? then why are they not admitted on an equality with White Citizens? are they admitted as property? then why is not other property admitted into the computation? These were difficulties however which he thought must be overruled by the necessity of compromise. He had some apprehensions also from the tendency of the blending of the blacks with the whites, to give disgust to the people of Pen^a, as had been intimated by his Colleague (M^r Gov^r Morris). But he differed from him in thinking numbers of inhab^{ts} so incorrect a measure of wealth. He had seen the Western settlem^{ts} of P^a and on a comparison of them with the City of Philad^a could discover little other difference, than that property was more unequally divided among individuals here than there. Taking the same number in the aggregate in the two situations he believed there would be little difference in their wealth and ability to contribute to the public wants. M^r Gov^r Morris was compelled to declare himself reduced to the dilemma of doing injustice to the Southern States or to human nature, and he must therefore do it to the former. For he could never agree to give such encouragement to the Slave Trade as would be given by allowing them a representation for their negroes, and he did not believe those States would ever confederate on terms that would deprive them of that trade. On Question for agreeing to include 3/5 of the blacks Mass^{ts} no. Con^t ay. N. J. no. P^a no. Del. no. M^d[130] no. V^a ay. N. C. ay. S. C. no. Geo. ay. [130] (M^r Carrol s^d in explanation of the vote of M^d that he wished the phraseology to be so altered as to obviate if possible the danger which had been expressed of giving umbrage to the Eastern & Middle States.) Note in Madison's hand. On the question as to taking census "the first year after the meeting of the Legislature" Mass^{ts} ay. Con^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no. On filling the blank for the periodical census, with 15 years. Agreed to nem. con. M^r Madison moved to add, after "15 years," the words "at least" that the Legislature might anticipate when circumstances were likely to render a particular year inconvenient. On this motion for adding "at least," it passed in the negative the States being equally divided. Mas. ay. Con^t no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay. A Change of the phraseology of the other clause so as to read, "and the Legislature shall alter or augment the representation accordingly," was agreed to nem. con. On the question on the whole resolution of M^r Williamson as amended, Mas. no. Con^t no. N. J. no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. THURSDAY, JULY 12. IN CONVENTION. M^r Gov^r Morris moved to add to the clause empowering the Legislature to vary the Representation according to the principles of wealth & numbers of inhab^{ts} a "proviso that taxation shall be in proportion to Representation." M^r Butler contended again that Representation s^d be according to the full number of inhab^{ts} including all the blacks; admitting the justice of M^r Gov^r Morris's motion. M^r Mason also admitted the justice of the principle, but was afraid embarrassments might be occasioned to the Legislature by it. It might drive the Legislature to the plan of Requisitions. M^r Gov^r Morris, admitted that some objections lay ag^{st} his Motion, but supposed they would be removed by restraining the rule to _direct_ taxation. With regard to indirect taxes on _exports_ & imports & on consumption the rule would be inapplicable. Notwithstanding what had been said to the contrary he was persuaded that the imports & consumption were pretty nearly equal throughout the Union. General Pinkney liked the idea. He thought it so just that it could not be objected to. But foresaw that if the revision of the census was left to the discretion of the Legislature, it would never be carried into execution. The rule must be fixed, and the execution of it enforced by the Constitution. He was alarmed at what was said[131] yesterday, concerning the Negroes. He was now again alarmed at what had been thrown out concerning the taxing of exports. S. Carol^a has in one year exported to the amount of £600,000 Sterling all which was the fruit of the labor of her blacks. Will she be represented in proportion to this amount? She will not. Neither ought she then to be subject to a tax on it. He hoped a clause would be inserted in the system, restraining the Legislature from taxing Exports. [131] By M^r Gov^r Morris. Note in Madison's handwriting. M^r Wilson approved the principle, but could not see how it could be carried into execution; unless restrained to direct taxation. M^r Gov^r Morris having so varied his Motion by inserting the word "direct." It pass^d nem. con. as follows--"provided always that direct taxation ought to be proportioned to representation." M^r Davie said it was high time now to speak out. He saw that it was meant by some gentlemen to deprive the Southern States of any share of Representation for their blacks. He was sure that N. Carol^a would never confederate on any terms that did not rate them at least as 3/5. If the Eastern States meant therefore to exclude them altogether the business was at an end. D^r Johnson, thought that wealth and population were the true, equitable rule of representation; but he conceived that these two principles resolved themselves into one; population being the best measure of wealth. He concluded therefore that y^e number of people ought to be established as the rule, and that all descriptions including blacks _equally_ with the Whites, ought to fall within the computation. As various opinions had been expressed on the subject, he would move that a Committee might be appointed to take them into consideration and report thereon. M^r Gov^r Morris. It has been said that it is high time to speak out, as one member, he would candidly do so. He came here to form a compact for the good of America. He was ready to do so with all the States. He hoped & believed that all would enter into such a Compact. If they would not he was ready to join with any States that would. But as the Compact was to be voluntary, it is in vain for the Eastern States to insist on what the South^n States will never agree to. It is equally vain for the latter to require what the other States can never admit; and he verily believed the people of Pen^a will never agree to a representation of Negroes. What can be desired by these States more than has been already proposed; that the Legislature shall from time to time regulate Representation according to population & wealth. Gen^l Pinkney desired that the rule of wealth should be ascertained and not left to the pleasure of the Legislature; and that property in slaves should not be exposed to danger under a Gov^t instituted for the protection of property. The first clause in the Report of the first Grand Committee was postponed. M^r Elseworth. In order to carry into effect the principle established, moved that to add to the last clause adopted by the House the words following, "and that the rule of contribution by direct taxation for the support of the Government of the U. States shall be the number of white inhabitants, and three fifths of every other description in the several States, until some other rule that shall more accurately ascertain the wealth of the several States can be devised and adopted by the Legislature." M^r Butler seconded the motion in order that it might be committed. M^r Randolph was not satisfied with the motion. The danger will be revived that the ingenuity of the Legislature may evade or pervert the rule so as to perpetuate the power where it shall be lodged in the first instance. He proposed in lieu of M^r Elseworth's motion, "that in order to ascertain the alterations in Representation that may be required from time to time by changes in the relative circumstances of the States, a Census shall be taken within two years from the 1^{st} meeting of the Gen^l Legislature of the U.S. and once within the term of every ---- year afterwards, of all the inhabitants in the manner & according to the ratio recommended by Congress in their resolution of the 18^{th} day of Ap^l 1783, (rating the blacks at 3/5 of their number) and that the Legislature of the U. S. shall arrange the Representation accordingly." He urged strenuously that express security ought to be provided for including slaves in the ratio of Representation. He lamented that such a species of property existed. But as it did exist the holders of it would require this security. It was perceived that the design was entertained by some of excluding slaves altogether; the Legislature therefore ought not to be left at liberty. M^r Elseworth withdraws his motion & seconds that of M^r Randolph. M^r Wilson observed that less umbrage would perhaps be taken ag^{st} an admission of the slaves into the Rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation; and as representation was to be according to taxation, the end would be equally attained. He accordingly moved & was 2^{ded} so to alter the last clause adopted by the House, that together with the amendment proposed the whole should read as follows--provided always that the representation ought to be proportioned according to direct taxation, and in order to ascertain the alterations in the direct taxation which may be required from time to time by the changes in the relative circumstances of the States, Resolved that a census be taken within two years from the first meeting of the Legislature of the U. States, and once within the term of every ---- years afterwards of all the inhabitants of the U.S. in the manner and according to the ratio recommended by Congress in their Resolution of April 18. 1783; and that the Legislature of the U.S. shall proportion the direct taxation accordingly. M^r King. Altho' this amendment varies the aspect somewhat, he had still two powerful objections ag^{st} tying down the Legislature to the rule of numbers. 1. they were at this time an uncertain index of the relative wealth of the States. 2. if they were a just index at this time it can not be supposed always to continue so. He was far from wishing to retain any unjust advantage whatever in one part of the Republic. If justice was not the basis of the connection it could not be of long duration. He must be shortsighted indeed who does not foresee that whenever the Southern States shall be more numerous than the Northern, they can & will hold a language that will awe them into justice. If they threaten to separate now in case injury shall be done them, will their threats be less urgent or effectual, when force shall back their demands. Even in the intervening period, there will be no point of time at which they will not be able to say, do us justice or we will separate. He urged the necessity of placing confidence to a certain degree in every Gov^t and did not conceive that the proposed confidence as to a periodical readjustment of the representation exceeded that degree. M^r Pinkney moved to amend M^r Randolph's motion so as to make "blacks equal to the whites in the ratio of representation." This he urged was nothing more than justice. The blacks are the labourers, the peasants of the Southern States: they are as productive of pecuniary resources as those of the Northern States. They add equally to the wealth, and considering money as the sinew of war, to the strength of the nation. It will also be politic with regard to the Northern States, as taxation is to keep pace with Representation. Gen^l Pinkney moves to insert 6 years instead of two, as the period computing from the 1^{st} meeting of y^e Legis^e within which the first census should be taken. On this question for inserting six, instead of "two" in the proposition of M^r Wilson, it passed in the affirmative Mass^{ts} no. C^t ay. N. J. ay. P^a ay. Del. div^d. May^d ay. V^a no. N. C. no. S. C. ay. Geo. no. On a question for filling the blank for y^e periodical census with 20 years, it passed in the negative Mass^{ts} no. C^t ay. N. J. ay. P. ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. On a question for 10 years, it passed in the affirmative. Mass. ay. Con^t no. N. J. no. P. ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. On M^r Pinkney's motion for rating blacks as equal to Whites instead of as 3/5. Mass. no. Con^t no. (D^r Johnson ay) N. J. no. P^a no. (3 ag^{st} 2.) Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo--ay. M^r Randolph's proposition as varied by M^r Wilson being read for question on the whole-- M^r Gerry, urged that the principle of it could not be carried into execution as the States were not to be taxed as States. With regard to taxes in imposts, he conceived they would be more productive Where there were no slaves than where there were; the consumption being greater-- M^r Elseworth. In case of a poll tax there w^d be no difficulty. But there w^d probably be none. The sum allotted to a State may be levied without difficulty according to the plan used by the State in raising its own supplies. On the question of y^e whole proposition; as proportioning representation to direct taxation & both to the white & 3/5 of black inhabitants, & requiring a Census within six years--& within every ten years afterwards. Mass. div^d. Con^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. div^d. Geo. ay. FRIDAY, JULY 13. IN CONVENTION. It being moved to postpone the clause in the Report of the Committee of Eleven as to the originating of money bills in _the first_ branch, in order to take up the following--"that in the 2^d branch each State shall have an equal voice," M^r Gerry, moved to add as an amendment to the last clause agreed to by the House, "that from the first meeting of the Legislature of the U.S. till a census shall be taken all monies to be raised for supplying the public Treasury by direct taxation shall be assessed on the inhabitants of the several States according to the number of their Representatives respectively in the 1^{st} branch." He said this would be as just before as after the Census; according to the general principle that taxation & Representation ought to go together. M^r Williamson feared that N. Hampshire will have reason to complain. 3 members were allotted to her as a liberal allowance, for this reason among others, that she might not suppose any advantage to have been taken of her absence. As she was still absent, and had no opportunity of deciding whether she would chuse to retain the number on the condition, of her being taxed in proportion to it, he thought the number ought to be reduced from three to two, before the question was taken on M^r G's motion. M^r Read could not approve of the proposition. He had observed he said in the Committee a backwardness in some of the members from the large States, to take their full proportion of Representatives. He did not then see the motive. He now suspects it was to avoid their due share of taxation. He had no objection to a just & accurate adjustment of Representation & taxation to each other. M^r Gov^r Morris & M^r Madison answered that the charge itself involved an acquittal; since notwithstanding the augmentation of the number of members allotted to Mass^{ts} & V^a the motion for proportioning the burdens thereto was made by a member from the former State & was approved by M^r M. from the latter who was on the Com^e. M^r Gov^r Morris said that he thought P^a had her due share in 8 members; and he could not in candor ask for more. M^r M. said that having always conceived that the difference of interest in the U. States lay not between the large & small, but the N. & South^n States, and finding that the number of members allotted to the N. States was greatly superior, he should have preferred, an addition of two members to the S. States, to wit one to N. & 1 to S. Carl^a rather than of one member to Virg^a. He liked the present motion, because it tended to moderate the views both of the opponents & advocates for rating very high, the negroes. M^r Elseworth hoped the proposition would be withdrawn. It entered too much into detail. The general principle was already sufficiently settled. As fractions can not be regarded in apportioning the _N^o of representatives_, the rule will be unjust, until an actual census shall be made. After that taxation may be precisely proportioned according to the principle established, to the _number of inhabitants_. M^r Wilson hoped the motion would not be withdrawn. If it sh^d it will be made from another quarter. The rule will be as reasonable & just before, as after a Census. As to fractional numbers, the Census will not destroy, but ascertain them. And they will have the same effect after as before the Census; for as he understands the rule, it is to be adjusted not to the number of _inhabitants_, but of _Representatives_. M^r Sherman opposed the motion. He thought the Legislature ought to be left at liberty: in which case they would probably conform to the principles observed by Cong^s. M^r Mason did not know that Virg^a would be a loser by the proposed regulation, but had some scruple as to the justice of it. He doubted much whether the conjectural rule which was to precede the Census, would be as just, as it would be rendered by an actual census. M^r Elseworth & M^r Sherman moved to postpone the motion of M^r Gerry. On y^e question, it passed in the negative. Mass. no. Con^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. Question on M^r Gerry's motion, it passed in the negative, the States being equally divided. Mass. ay. Con^t no. N. J. no. _P^a ay._ Del. no. M^d no. _V^a no._ N. C. ay. S. C. ay. Geo. ay. M^r Gerry finding that the loss of the question had proceeded from an objection with some, to the proposed assessment of direct taxes on the _inhabitants_ of the States, which might restrain the Legislature to a poll tax, moved his proposition again, but so varied as to authorize the assessment on the _States_, which leaves the mode to the Legislature, viz "that from the 1^{st} meeting of the Legislature of the U. S. untill a census shall be taken, all monies for supplying the public Treasury by direct taxation shall be raised from the said several States according to the number of their representatives respectively in the 1^{st} branch." On this varied question, it passed in the affirmative Mas. ay. Con^t no. N. J. no. _P^a div^d_ Del. no. M^d no. _V^a ay._ N. C. ay. S. C. ay. Geo. ay. On the motion of M^r Randolph, the vote of saturday last authorizing the Legisl^{re} to adjust from time to time, the representation upon the principles of _wealth_ & numbers of inhabitants, was reconsidered by common consent in order to strike out "Wealth" and adjust the resolution to that requiring periodical revisions, according to the number of whites & three fifths of the blacks: the motion was in the words following:--"But as the present situation of the States may probably alter in the number of their inhabitants, that the Legislature of the U. S. be authorized from time to time to apportion the number of representatives; and in case any of the States shall hereafter be divided or any two or more States united or new States created within the limits of the U. S. the Legislature of U. S. shall possess authority to regulate the number of Representatives in any of the foregoing cases, upon the principle of their number of inhabitants; according to the provisions hereafter mentioned." M^r Gov^r Morris opposed the alteration as leaving still incoherence. If Negroes were to be viewed as inhabitants, and the revision was to proceed on the principle of numbers of inhab^{ts} they ought to be added in their entire number, and not in the proportion of 3/5. If as property, the word wealth was right, and striking it out would produce the very inconsistency which it was meant to get rid of.--The train of business & the late turn which it had taken, had led him he said, into deep meditation on it, and He w^d candidly state the result. A distinction had been set up & urged, between the N^n and South^n States. He had hitherto considered this doctrine as heretical. He still thought the distinction groundless. He sees however that it is persisted in, and the South^n Gentlemen will not be satisfied unless they see the way open to their gaining a majority in the public Councils. The consequence of such a transfer of power from the maritime to the interior & landed interest will he foresees be such an oppression of commerce that he shall be obliged to vote for y^e vicious principle of equality in the 2^d branch in order to provide some defence for the N. States ag^{st} it. But to come more to the point; either this distinction is fictitious or real; if fictitious let it be dismissed & let us proceed with due confidence. If it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other. There can be no end of demands for security if every particular interest is to be entitled to it. The Eastern States may claim it for their fishery, and for other objects, as the South^n States claim it for their peculiar objects. In this struggle between the two ends of the Union, what part ought the middle States in point of policy to take: to join their Eastern brethren according to his ideas. If the South^n States get the power into their hands, and be joined as they will be with the interior Country, they will inevitably bring on a war with Spain for the Mississippi. This language is already held. The interior Country having no property nor interest exposed on the sea, will be little affected by such a war. He wished to know what security the North^n & middle States will have ag^{st} this danger. It has been said that N. C. S. C., and Georgia only will in a little time have a majority of the people of America. They must in that case include the great interior Country, and every thing was to be apprehended from their getting the power into their hands. M^r Butler. The security the South^n States want is that their negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do. It was not supposed that N. C. S. C. & Geo. would have more people than all the other States, but many more relatively to the other States than they now have. The people & strength of America are evidently bearing Southwardly & S. westw^{dly}. M^r Wilson. If a general declaration would satisfy any gentleman he had no indisposition to declare his sentiments. Conceiving that all men wherever placed have equal rights and are equally entitled to confidence, he viewed without apprehension the period when a few States should contain the superior number of people. The majority of people wherever found ought in all questions to govern the minority. If the interior Country should acquire this majority, it will not only have the right, but will avail itself of it whether we will or no. This jealousy misled the policy of G. Britain with regard to America. The fatal maxims espoused by her were that the Colonies were growing too fast, and that their growth must be stinted in time. What were the consequences?, first, enmity on our part, then actual separation. Like consequences will result on the part of the interior settlements, if like jealousy & policy be pursued on ours. Further, if numbers be not a proper rule, why is not some better rule pointed out. No one has yet ventured to attempt it. Cong^s have never been able to discover a better. No State as far as he had heard, had suggested any other. In 1783, after elaborate discussion of a measure of wealth all were satisfied then as they are now that the rule of numbers, does not differ much from the combined rule of numbers & wealth. Again he could not agree that property was the sole or primary object of Gov^t & society. The cultivation & improvement of the human mind was the most noble object. With respect to this object, as well as to other _personal_ rights, numbers were surely the natural & precise measure of Representation. And with respect to property, they could not vary much from the precise measure. In no point of view however could the establishm^t of numbers as the rule of representation in the 1^{st} branch vary his opinion as to the impropriety of letting a vicious principle into the 2^d branch.--On the Question to strike out _Wealth_, & to make the change as moved by M^r Randolph, it passed in the affirmative. Mas. ay. Con^t ay. N. J. ay. P^a ay. Del div^d. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay. M^r Reed moved to insert after the word "divided," "or enlarged by addition of territory" which was agreed to nem con. (his object probably was to provide for such cases as an enlargem^t of Delaware by annexing to it the Peninsula on the East side of the Chesapeak.) Adjourned. SATURDAY, JULY 14. IN CONVENTION. M^r L. Martin called for the question on the whole report, including the parts relating to the origination of money bills, and the equality of votes in the 2^d branch. M^r Gerry, wished before the question should be put, that the attention of the House might be turned to the dangers apprehended from Western States. He was for admitting them on liberal terms, but not for putting ourselves in their hands. They will if they acquire power like all men, abuse it. They will oppress commerce, and drain our wealth into the Western Country. To guard ag^{st} these consequences, he thought it necessary to limit the number of new States to be admitted into the Union, in such a manner, that they should never be able to outnumber the Atlantic States. He accordingly moved "that in order to secure the liberties of the States already confederated, the number of Representatives in the 1^{st} branch, of the States which shall hereafter be established, shall never exceed in number, the Representatives from such of the States as shall accede to this Confederation. M^r King, seconded the motion. M^r Sherman, thought there was no probability that the number of future States would exceed that of the Existing States. If the event should ever happen, it was too remote to be taken into consideration at this time. Besides We are providing for our posterity, for our children & our grand Children; who would be as likely to be citizens of new Western States, as of the old States. On this consideration alone, we ought to make no such discrimination as was proposed by the motion. M^r Gerry. If some of our children should remove, others will stay behind, and he thought it incumbent on us to provide for their interests. There was a rage for emigration from the Eastern States to the Western Country, and he did not wish those remaining behind to be at the mercy of the emigrants. Besides foreigners are resorting to that Country, and it is uncertain what turn things may take there.--On the question for agreeing to the Motion of M^r Gerry, it passed in the negative. Mass. ay. Con^t ay. N. J. no. P^a div^d. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. M^r Rutlidge proposed to reconsider the two propositions touching the originating of money bills in the first & the equality of votes in the second branch. M^r Sherman was for the question on the whole at once. It was he said a conciliatory plan, it had been considered in all its parts, a great deal of time had been spent upon it, and if any part should now be altered, it would be necessary to go over the whole ground again. M^r L. Martin urged the question on the whole. He did not like many parts of it. He did not like having two branches, nor the inequality of votes in the 1^{st} branch. He was willing however to make trial of the plan, rather than do nothing. M^r Wilson traced the progress of the report through its several stages, remarking y^t when on the question concerning an equality of votes, the House was divided, our Constituents had they voted as their representatives did, would have stood as 2/3 ag^{st} the equality, and 1/3 only in favor of it. This fact would ere long be known, and it will appear that this fundamental point has been carried by 1/3 ag^{st} 2/3. What hopes will our Constituents entertain when they find that the essential principles of justice have been violated in the outset of the Governm^t. As to the privilege of originating money bills, it was not considered by any as of much moment, and by many as improper in itself. He hoped both clauses w^d be reconsidered. The equality of votes was a point of such critical importance, that every opportunity ought to be allowed, for discussing and collecting the mind of the Convention upon it. M^r L. Martin denies that there were 2/3 ag^{st} the equality of votes. The States that please to call themselves large, are the weakest in the Union. Look at Mas^{ts}. Look at Virg^a. Are they efficient States? He was for letting a separation take place if they desired it. He had rather there should be two Confederacies, than one founded on any other principle than an equality of votes in the 2^d branch at least. M^r Wilson was not surprised that those who say that a minority is more than a majority should say the minority is stronger than the majority. He supposed the next assertion will be that they are richer also; though he hardly expected it would be persisted in when the States shall be called on for taxes & troops. M^r Gerry also animadverted on M^r L. Martins remarks on the weakness of Mas^{ts}. He favored the reconsideration with a view not of destroying the equality of votes; but of providing that the States should vote per Capita, which he said would prevent the delays & inconveniences that had been experienced in Cong^s and would give a national aspect & Spirit to the management of business. He did not approve of a reconsideration of the clause relating to money bills. It was of great consequence. It was the corner stone of the accommodation. If any member of the Convention had the exclusive privilege of making propositions, would any one say that it would give him no advantage over other members. The Report was not altogether to his mind. But he would agree to it as it stood rather than throw it out altogether. The reconsideration being tacitly agreed to M^r Pinkney moved that instead of an equality of votes, the States should be represented in the 2^d branch as follows: N. H. by 2 members. Mass. 4. R. I. 1. Con^t 3. N. Y. 3. N. J. 2. P^a 4. Del. 1; M^d 3. Virg^a 5. N. C. 3. S. C. 3. Geo. 2. making in the whole 36. M^r Wilson seconds the motion M^r Dayton. The smaller States can never give up their equality. For himself he would in no event yield that security for their rights. M^r Sherman, urged the equality of votes not so much as a Security for the small States; as for the State Gov^{ts} which could not be preserved unless they were represented & had a negative in the Gen^l Government. He had no objection to the members in the 2^d b. voting per capita, as had been suggested by (M^r Gerry). M^r Madison concurred in this motion of M^r Pinkney as a reasonable compromise. M^r Gerry said he should like the motion, but could see no hope of success. An accommodation must take place, and it was apparent from what had been seen that it could not do so on the ground of the motion. He was utterly against a partial confederacy, leaving other States to accede or not accede, as had been intimated. M^r King said it was always with regret that he differed from his colleagues, but it was his duty to differ from (M^r Gerry) on this occasion. He considered the proposed Government as substantially and formally, a General and National Government over the people of America. There never will be a case in which it will act as a federal Government on the States and not on the individual Citizens. And is it not a clear principle that in a free Gov^t those who are to be the objects of a Gov^t ought to influence the operations of it? What reason can be assigned why the same rule of representation s^d not prevail in the 2^d branch as in the 1^{st}.? He could conceive none. On the contrary, every view of the subject that presented itself, seemed to require it. Two objections had been raised ag^{st} it, drawn 1. from the terms of the existing compact. 2. from a supposed danger to the smaller States.--As to the first objection he thought it inapplicable. According to the existing Confederation, the rule by which the public burdens is to be apportioned is _fixed_, and must be pursued. In the proposed Govern^t it cannot be fixed, because indirect taxation is to be substituted. The Legislature therefore will have full discretion to impose taxes in such modes & proportions as they may judge expedient. As to the 2^d objection, he thought it of as little weight. The Gen^l Govern^t can never wish to intrude on the State Govern^{ts}. There could be no temptation. None had been pointed out. In order to prevent the interference of measures which seemed most likely to happen, he would have no objection to throwing all the State debts into the federal debt, making one aggregate debt of about 70,000,000 of dollars, and leaving it to be discharged by the Gen^l Gov^t. According to the idea of securing the State Gov^{ts} there ought to be three distinct legislative branches. The 2^d was admitted to be necessary, and was actually meant, to check the 1^{st} branch, to give more wisdom, system, & stability to the Gov^t and ought clearly as it was to operate on the people, to be proportioned to them. For the third purpose of securing the States, there ought then to be a 3^d branch, representing the States as such, and guarding by equal votes their rights & dignities. He would not pretend to be as thoroughly acquainted with his immediate Constituents as his colleagues, but it was his firm belief that Mas^{ts} would never be prevailed on to yield to an equality of votes. In N. York, (he was sorry to be obliged to say any thing relative to that State in the absence of its representatives, but the occasion required it), in N. York he had seen that the most powerful argument used by the considerate opponents to the grant of the Impost to Congress, was pointed ag^{st} the vicious constitution of Cong^s with regard to representation & suffrage. He was sure that no Gov^t could last that was not founded on just principles. He preferred the doing of nothing, to an allowance of an equal vote to all the States. It would be better he thought to submit to a little more confusion & convulsion, than to submit to such an evil. It was difficult to say what the views of different Gentlemen might be. Perhaps there might be some who thought no Governm^t co-extensive with the U. States could be established with a hope of its answering the purpose. Perhaps there might be other fixed opinions incompatible with the object we are pursuing. If there were, he thought it but candid that Gentlemen should speak out that we might understand one another. M^r Strong. The Convention had been much divided in opinion. In order to avoid the consequences of it, an accommodation had been proposed. A Committee had been appointed: and though some of the members of it were averse to an equality of votes, a Report had been made in favor of it. It is agreed on all hands that Congress are nearly at an end. If no Accommodation takes place, the Union itself must soon be dissolved. It has been suggested that if we cannot come to any general agreement, the principal States may form & recommend a Scheme of Government. But will the small States in that case ever accede it. Is it probable that the large States themselves will under such circumstances embrace and ratify it. He thought the small States had made a considerable concession in the article of money bills, and that they might naturally expect some concessions on the other side. From this view of the matter he was compelled to give his vote for the Report taken altogether. M^r Madison expressed his apprehensions that if the proper foundation of Governm^t was destroyed, by substituting an equality in place of a proportional Representation, no proper superstructure would be raised. If the small States really wish for a Government armed with the powers necessary to secure their liberties, and to enforce obedience on the larger members as well as themselves he could not help thinking them extremely mistaken in their means. He reminded them of the consequences of laying the existing Confederation on improper principles. All the principal parties to its compilation joined immediately in mutilating & fettering the Governm^t in such a manner that it has disappointed every hope placed in it. He appealed to the doctrine & arguments used by themselves on a former occasion. It had been very properly observed by (M^r Patterson) that Representation was an expedient by which the meeting of the people themselves was rendered unnecessary; And that the representatives ought therefore to bear a proportion to the votes which their constituents if convened would respectively have. Was not this remark as applicable to one branch of the Representation as to the other? But it had been said that the Govern^t would in its operation be partly federal, partly national; that altho' in the latter respect the Representatives of the people ought to be in proportion to the people; yet in the former it ought to be according to the number of States. If there was any solidity in this distinction he was ready to abide by it, if there was none it ought to be abandoned. In all cases where the Gen^l Governm^t is to act on the people, let the people be represented and the votes be proportional. In all cases where the Govern^t is to act on the States as such in like manner as Cong^s now acts on them, let the States be represented & the votes be equal. This was the true ground of compromise if there was any ground at all. But he denied that there was any ground. He called for a single instance in which the Gen^l Gov^t was not to operate on the people individually. The practicability of making laws, with coercive sanctions, for the States as Political bodies, had been exploded on all hands. He observed that the people of the large States would in some way or other secure to themselves a weight proportioned to the importance accruing from their superior numbers. If they could not effect it by a proportional representation in the Gov^t they would probably accede to no Gov^t which did not in a great measure depend for its efficacy on their voluntary cooperation; in which case they would indirectly secure their object. The existing confederacy proved that where the Acts of the Gen^l Gov^t were to be executed by the particular Gov^{ts} the latter had a weight in proportion to their importance. No one would say that either in Cong^s or out of Cong^s. Delaware had equal weight with Pennsylv^a. If the latter was to supply ten times as much money as the former, and no compulsion could be used, it was of ten times more importance, that she should voluntarily furnish the supply. In the Dutch confederacy the votes of the Provinces were equal. But Holland which supplies about half the money, governed the whole republic. He enumerated the objections ag^{st} an equality of votes in the 2^d branch, notwithstanding the proportional representation in the first. 1. the minority could negative the will of the majority of the people. 2. they could extort measures by making them a condition of their assent to other necessary measures. 3. they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the Senate. 4. the evil instead of being cured by time, would increase with every new State that should be admitted, as they must all be admitted on the principle of equality. 5. the perpetuity it would give to the preponderance of the North^n ag^{st} the South^n Scale was a serious consideration. It seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but between the N. & South^n States. The institution of slavery & its consequences formed the line of discrimination. There were 5 States on the South, 8 on the North^n side of this line. Should a proport^l representation take place it was true, the N. side would still outnumber the other; but not in the same degree, at this time; and every day would tend towards an equilibrium. M^r Wilson would add a few words only. If equality in the 2^d branch was an error that time would correct, he should be less anxious to exclude it being sensible that perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided. A vice in the Representation, like an error in the first concoction, must be followed by disease, convulsions, and finally death itself. The justice of the general principle of proportional representation has not in argument at least been yet contradicted. But it is said that a departure from it so far as to give the States an equal vote in one branch of the Legislature is essential to their preservation. He had considered this position maturely, but could not see its application. That the States ought to be preserved he admitted. But does it follow that an equality of votes is necessary for the purpose? Is there any reason to suppose that if their preservation should depend more on the large than on the small States the security of the States ag^{st} the Gen^l Government would be diminished? Are the large States less attached to their existence more likely to commit suicide, than the small? An equal vote then is not necessary as far as he can conceive: and is liable among other objections to this insuperable one: The great fault of the existing confederacy is its inactivity. It has never been a complaint ag^{st} Cong^s that they governed over much. The complaint has been that they have governed too little. To remedy this defect we were sent here. Shall we effect the cure by establishing an equality of votes as is proposed? no: this very equality carries us directly to Congress; to the system which it is our duty to rectify. The small States cannot indeed act, by virtue of this equality, but they may controul the Gov^t as they have done in Cong^s. This very measure is here prosecuted by a minority of the people of America. Is then the object of the Convention likely to be accomplished in this way? Will not our Constituents say? we sent you to form an efficient Gov^t and you have given us one more complex indeed, but having all the weakness of the former govern^t. He was anxious for uniting all the States under one Govern^t. He knew there were some respectable men who preferred three confederacies, united by offensive & defensive alliances. Many things may be plausibly said, some things may be justly said, in favor of such a project. He could not however concur in it himself; but he thought nothing so pernicious as bad first principles. M^r Elseworth asked two questions, one of M^r Wilson, whether he had ever seen a good measure fail in Cong^s for want of a majority of States in its favor? He had himself never known such an instance: the other of M^r Madison whether a negative lodged with the majority of the States even the smallest, could be more dangerous than the qualified negative proposed to be lodged in a single Executive Magistrate, who must be taken from some one State? M^r Sherman, signified that his expectation was that the Gen^l Legislature would in some cases act on the _federal principle_, of requiring quotas. But he thought it ought to be empowered to carry their own plans into execution, if the States should fail to supply their respective quotas. On the question for agreeing to M^r Pinkney's motion for allowing N. H. 2. Mas. 4. &c.--it passed in the negative, Mass. no. M^r King ay. M^r Ghorum absent. Con^t no. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. no. Adjourned.[132] [132] "Memorandum. "July 15, '87. "About twelve days since the Convention appointed a Grand Comee, consisting of Gerry, Ellsworth, Yates, Paterson, Franklin, Bedford, Martin, Mason, Rutledge & Baldwin to adjust the Representation in the two Brs. of the Legislature of the U. S. They reported yt. every 40,000 Inhabs. taken agreeably to the Resolution of Cong. of ye 18 Ap. 1783, shd. send one member to the first Br. of the Legislature, yt. this Br. shd. originate exclusively Money Bills, & also originate ye appropriations of money; and that in ye Senate or upper Br. each State shd. have one vote & no more. The Representation as to the first Br. was twice recommitted altho' not to the same Committee; finally it was agreed yt Taxation of the direct sort & Representation shd. be in direct proportion with each other--that the first Br. shd. consist of 65 members, viz. N. H. 3, M. 8, R. I. 1, C. 5, N. Y. 6, N. J. 4, P. 8, D. 1, M. 6, V. 10, N. C. 5, S. C. 5, G. 3,--and that the origination of money Bills and the Appropriations of money shd. belong in the first instance to yt. Br., but yt in the Senate or 2nd Br. each State shd. have an equal Vote. In this situation of the Report it was moved by S. Car. that in the formation of the 2nd Br., instead of an equality of Votes among the States, that N. H. shd. have 2, M. 4, R. I. 1, C. 3, N. Y. 3, N. J. 2, P. 4, D. 1, M. 3, V. 5, N. C. 3, S. C. 3, G. 2 = total 36. "On the question to agree to this apportionment, instead of the equality (Mr. Gorham being absent) Mass., Con., N. Jer., Del., N. Car., & Georg--No. Penn., Mar., Virg. & S. Car. Aye. "This Question was taken and to my mortification by the vote of Mass. lost on the 14th July. "(endorsed 'inequality lost by vote of Mass.')"--King's Note, King's _Life and Correspondence of Rufus King_, I., 615. MONDAY, JULY 16. IN CONVENTION. On the question for agreeing to the whole Report as amended & including the equality of votes in the 2^d branch, it passed in the affirmative. Mass. divided M^r Gerry, M^r Strong. ay. M^r King, M^r Ghorum no. Con^t ay. N. J. ay. Pen^a no. Del. ay. M^d ay. V^a no. N. C. ay. M^r Spraight no. S. C. no. Geo. no. The whole thus passed is in the words following, viz. "Resolved, that in the original formation of the Legislature of the U. S. the first branch thereof shall consist of sixty five members, of which number N. Hampshire shall send 3. Mass^{ts} 8. Rh. I. 1. Conn^t 5. N. Y. 6. N. J. 4. Pen^a 8. Del. 1. Mary^d 6. Virg^a 10. N. C. 5. S. C. 5. Geo. 3.--But as the present situation of the States may probably alter in the number of their inhabitants, the Legislature of the U. S. shall be authorized from time to time to apportion the number of Rep^s and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any new States created within the limits of the U. S. the Legislature of the U. S. shall possess authority to regulate the number of Rep^s in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned. namely--provided always that representation ought to be proportioned according to direct taxation; and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the States-- Resolved, that a Census be taken within six years from the 1^{st} meeting of the Legislature of the U. S., and once within the term of every 10 years afterwards of all the inhabitants of the U. S. in the manner and according to the ratio recommended by Congress in their Resolution of April 18. 1783, and that the Legislature of the U. S. shall proportion the direct taxation accordingly-- Resolved, that all bills for raising or appropriating money, and for fixing the salaries of officers of the Gov^t of the U. S. shall originate in the first branch of the Legislature of the U. S. and shall not be altered or amended in the 2^d branch: and that no money shall be drawn from the Public Treasury, but in pursuance of appropriations to be originated in the 1^{st} branch. _Resolv^d_, that in the 2^d branch of the Legislature of the U. S., each State shall have an equal vote. The 6^{th} Resol: in the Report from the Com^e of the whole House, which had been postponed in order to consider the 7 & 8^{th} Resol^{ns}.; was now resumed. see the Resol^n: The 1^{st} member "That the Nat^l Legislature ought to possess the Legislative Rights vested in Cong^s by the Confederation" was agreed to nem. con. The next, "And moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation," being read for a question. M^r Butler calls for some explanation of the extent of this power; particularly of the word _incompetent_. The vagueness of the terms rendered it impossible for any precise judgment to be formed. M^r Ghorum. The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit. M^r Rutlidge, urged the objection started by M^r Butler and moved that the clause should be committed to the end that a specification of the powers comprised in the general terms, might be reported. On the question for commitment, the States were equally divided Mas. no. Con^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay: So it was lost. M^r Randolph. The vote of this morning (involving an equality of suffrage in 2^d branch) had embarrassed the business extremely. All the powers given in the Report from the Com^e of the whole, were founded on the supposition that a Proportional representation was to prevail in both branches of the Legislature. When he came here this morning his purpose was to have offered some propositions that might if possible have united a great majority of votes, and particularly might provide ag^{st} the danger suspected on the part of the smaller States, by enumerating the cases in which it might lie, and allowing an equality of votes in such cases.[133] But finding from the Preceding vote that they persist in demanding an equal vote in all cases, that they have succeeded in obtaining it, and that N. York, if present would probably be on the same side, he could not but think we were unprepared to discuss this subject further. It will probably be in vain to come to any final decision with a bare majority on either side. For these reasons he wished the Convention might adjourn, that the large States might consider the steps proper to be taken in the present solemn crisis of the business, and that the small States might also deliberate on the means of conciliation. [133] See the paper, in the appendix, co[~m]unicated by M^r R. to J. M. July 10.--Note in Madison's hand. M^r Patterson, thought with M^r R. that it was high time for the Convention to adjourn that the rule of secrecy ought to be rescinded, and that our Constituents should be consulted. No conciliation could be admissible on the part of the smaller States on any other ground than that of an equality of votes in the 2^d branch. If M^r Randolph would reduce to form his motion for an adjournment sine die, he would second it with all his heart. Gen^l Pinkney wished to know of M^r R. whether he meant an adjournment sine die, or only an adjournment for the day. If the former was meant, it differed much from his idea. He could not think of going to S. Carolina and returning again to this place. Besides it was chimerical to suppose that the States if consulted would ever accord separately, and beforehand. M^r Randolph, had never entertained an idea of an adjournment sine die; & was sorry that his meaning had been so readily & strangely misinterpreted. He had in view merely an adjournment till to-morrow, in order that some conciliatory experiment might if possible be devised, and that in case the smaller States should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary. M^r Patterson seconded the adjournment till to-morrow, as an opportunity seemed to be wished by the larger States to deliberate further on conciliatory expedients. On the question for adjourning till tomorrow, the States were equally divided, Mas. no. Con^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no, so it was lost. M^r Broome thought it his duty to declare his opinion ag^{st} an adjournment sine die, as had been urged by M^r Patterson. Such a measure he thought would be fatal. Something must be done by the Convention, tho' it should be by a bare majority. M^r Gerry observed that Mas^{ts} was opposed to an adjournment, because they saw no new ground of compromise. But as it seemed to be the opinion of so many States that a trial sh^d be made, the State would now concur in the adjournm^t. M^r Rutlidge could see no need of an adjourn^t because he could see no chance of a compromise. The little States were fixt. They had repeatedly & solemnly declared themselves to be so. All that the large States then had to do was to decide whether they would yield or not. For his part he conceived that altho' we could not do what we thought best, in itself, we ought to do something. Had we not better keep the Gov^t up a little longer, hoping that another Convention will supply our omissions, than abandon every thing to hazard. Our Constituents will be very little satisfied with us if we take the latter course. M^r Randolph & M^r King renewed the motion to adjourn till tomorrow. On the question. Mas. ay. Con^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. div^d. Adjourned * * * * * On the morning following before the hour of the Convention a number of the members from the larger States, by common agreement met for the purpose of consulting on the proper steps to be taken in consequence of the vote in favor of an equal Representation in the 2^d branch, and the apparent inflexibility of the smaller States on that point. Several members from the latter States also attended. The time was wasted in vague conversation on the subject, without any specific proposition or agreement. It appeared indeed that the opinions of the members who disliked the equality of votes differed much as to the importance of that point, and as to the policy of risking a failure of any general act of the Convention by inflexibly opposing it. Several of them supposing that no good Governm^t could or would be built on that foundation, and that as a division of the convention into two opinions was unavoidable; it would be better that the side comprising the principal States, and a majority of the people of America, should propose a scheme of Gov^t to the States, than that a scheme should be proposed on the other side, would have concurred in a firm opposition to the smaller States, and in a separate recommendation, if eventually necessary. Others seemed inclined to yield to the smaller States, and to concur in such an Act however imperfect & exceptionable, as might be agreed on by the Convention as a body, tho' decided by a bare majority of States and by a minority of the people of the U. States. It is probable that the result of this consultation satisfied the smaller States that they had nothing to apprehend from a Union of the larger, in any plan whatever ag^{st} the equality of votes in the 2^d branch. TUESDAY JULY 17. IN CONVENTION. M^r Govern^r Morris, moved to reconsider the whole Resolution agreed to yesterday concerning the constitution of the 2 branches of the Legislature. His object was to bring the House to a consideration in the abstract of the powers necessary to be vested in the general Government. It had been said, Let us know how the Gov^t is to be modelled, and then we can determine what powers can be properly given to it. He thought the most eligible course was, first to determine on the necessary powers, and then so to modify the Govern^t as that it might be justly & properly enabled to administer them. He feared if we proceeded to a consideration of the powers, whilst the vote of yesterday including an equality of the States in the 2^d branch, remained in force, a reference to it, either mental or expressed, would mix itself with the merits of every question concerning the powers.--This motion was not seconded. (It was probably approved by several members who either despaired of success, or were apprehensive that the attempt would inflame the jealousies of the smaller States.) The 6^{th} Resol^n in the Report of the Com^e of the Whole relating to the powers, which had been postponed in order to consider the 7 & 8^{th} relating to the constitution of the Nat^l Legislature, was now resumed. M^r Sherman observed that it would be difficult to draw the line between the powers of the Gen^l Legislature, and those to be left with the States; that he did not like the definition contained in the Resolution, and proposed in place of the words "individual legislation" line 4. inclusive, to insert "to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the Government of the individual States in any matters of internal police which respect the Gov^t of such States only, and wherein the general welfare of the U. States is not concerned." M^r Wilson 2^{ded} the amendment as better expressing the general principle. M^r Gov^r Morris opposed it. The internal police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected. M^r Sherman, in explanation of his idea read an enumeration of powers, including the power of levying taxes on trade, but not the power of _direct taxation_. M^r Gov^r Morris remarked the omission, and inferred that for the deficiencies of taxes on consumption, it must have been the meaning of Mr. Sherman, that the Gen^l Gov^t should recur to quotas & requisitions, which are subversive of the idea of Gov^t. M^r Sherman acknowledged that his enumeration did not include direct taxation. Some provision he supposed must be made for supplying the deficiency of other taxation, but he had not formed any. On Question on M^r Sherman's motion it passed in the negative Mas. no. Con^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. M^r Bedford moved that the 2^d member of Resolution 6. be so altered as to read, "and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are severally incompetent, or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation." M^r Gov^r Morris 2^{ds} the motion. M^r Randolph. This is a formidable idea indeed. It involves the power of violating all the laws and constitutions of the States, and of intermeddling with their police. The last member of the sentence is also superfluous, being included in the first. M^r Bedford. It is not more extensive or formidable than the clause as it stands: _no State_ being _separately_ competent to legislate for the _general interest_ of the Union. On question for agreeing to M^r Bedford's motion it passed in the affirmative. Mas. ay. Con^t no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. no. On the sentence as amended, it passed in the affirmative. Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no. The next. "To negative all laws passed by the several States contravening in the opinion of the Nat: Legislature the articles of Union, or any treaties subsisting under the authority of y^e Union." M^r Gov^r Morris opposed this power as likely to be terrible to the States, and not necessary, if sufficient Legislative authority should be given to the Gen^l Government. M^r Sherman thought it unnecessary; as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the legislature would wish to be negatived. M^r L. Martin considered the power as improper & inadmissible. Shall all the laws of the States be sent up to the Gen^l Legislature before they shall be permitted to operate? M^r Madison, considered the negative on the laws of the States as essential to the efficacy & security of the Gen^l Gov^t. The necessity of a general Gov^t proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled. Nothing short of a negative on their laws will controul it. They will pass laws which will accomplish their injurious objects before they can be repealed by the Gen^l Legisl^{re} or be set aside by the National Tribunals. Confidence can not be put in the State Tribunals as guardians of the National authority and interests. In all the States these are more or less depend^t on the Legislatures. In Georgia they are appointed annually by the Legislature. In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be the willing instruments of the wicked & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British system. Nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the Crown, stifles in the birth every Act of every part tending to discord or encroachment. It is true the prerogative is sometimes misapplied thro' ignorance or a partiality to one particular part of y^e empire; but we have not the same reason to fear such misapplications in our System. As to the sending all laws up to the Nat^l Legisl: that might be rendered unnecessary by some emanation of the power into the States, so far at least as to give a temporary effect to laws of immediate necessity. M^r Gov^r Morris was more & more opposed to the negative. The proposal of it would disgust all the States. A law that ought to be negatived will be set aside in the Judiciary departm^t and if that security should fail; may be repealed by a Nation^l law. M^r Sherman. Such a power involves a wrong principle, to wit, that a law of a State contrary to the articles of the Union would if not negatived, be valid & operative. M^r Pinkney urged the necessity of the Negative. On the question for agreeing to the power of negativing laws of States &c. it passed in the negative. Mas. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no. M^r Luther Martin moved the following resolution "that the Legislative acts of the U. S. made by virtue & in pursuance of the articles of Union and all Treaties made & ratified under the authority of the U. S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants--& that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding" which was agreed to nem: con: 9^{th} Resol: "that Nat^l Executive consist of a single person," Ag^d to nem. con. "To be chosen by the National Legisl:" M^r Govern^r Morris was pointedly ag^{st} his being so chosen. He will be the mere creature of the Legisl: if appointed & impeachable by that body. He ought to be elected by the people at large, by the freeholders of the Country. That difficulties attend this mode, he admits. But they have been found superable in N. Y. & in Con^t and would he believed be found so, in the case of an Executive for the U. States. If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. If the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment. He moved to strike out "National Legislature," & insert "citizens of the U. S." M^r Sherman thought that the sense of the Nation would be better expressed by the Legislature, than by the people at large. The latter will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment. If the choice be made by the Legisl^{re} a majority of voices may be made necessary to constitute an election. M^r Wilson. Two arguments have been urged ag^{st} an election of the Executive Magistrate by the people. 1 the example of Poland where an Election of the supreme Magistrate is attended with the most dangerous commotions. The cases he observed were totally dissimilar. The Polish nobles have resources & dependants which enable them to appear in force, and to threaten the Republic as well as each other. In the next place the electors all assemble in one place; which would not be the case with us. The 2^d arg^t is that a _majority_ of the people would never concur. It might be answered that the concurrence of a majority of the people is not a necessary principle of election, nor required as such in any of the States. But allowing the objection all its force, it may be obviated by the expedient used in Mass^{ts}, where the Legislature by majority of voices, decide in case a majority of people do not concur in favor of one of the candidates. This would restrain the choice to a good nomination at least, and prevent in a great degree intrigue & cabal. A particular objection with him ag^{st} an absolute election by the Legisl^{re} was that the Exec: in that case would be too dependent to stand the mediator between the intrigues & sinister views of the Representatives and the general liberties & interests of the people. M^r Pinkney did not expect this question would again have been brought forward: An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points. The Nat^l Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution. M^r Gov^r Morris. It is said that in case of an election by the people the populous States will combine & elect whom they please. Just the reverse. The people of such States cannot combine. If there be any combination it must be among their representatives in the Legislature. It is said the people will be led by a few designing men. This might happen in a small district. It can never happen throughout the continent. In the election of a Gov^r of N. York, it sometimes is the case in particular spots, that the activity & intrigues of little partizans are successful, but the general voice of the State is never influenced by such artifices. It is said the multitude will be uninformed. It is true they would be uninformed of what passed in the Legislative Conclave, if the election were to be made there; but they will not be uninformed of those great & illustrious characters which have merited their esteem & confidence. If the Executive be chosen by the Nat^l Legislature, he will not be independent on it; and if not independent, usurpation & tyranny on the part of the Legislature will be the consequence. This was the case in England in the last Century. It has been the case in Holland, where their Senates have engrossed all power. It has been the case every where. He was surprised that an election by the people at large should ever have been likened to the polish election of the first Magistrate. An election by the Legislature will bear a real likeness to the election by the Diet of Poland. The great must be the electors in both cases, and the corruption & cabal w^{ch} are known to characterize the one would soon find their way into the other. Appointments made by numerous bodies, are always worse than those made by single responsible individuals, or by the people at large. Col. Mason. It is curious to remark the different language held at different times. At one moment we are told that the Legislature is entitled to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue & corruption, and cannot be trusted at all. But not to dwell on this inconsistency he would observe that a Government which is to last ought at least to be practicable. Would this be the case if the proposed election should be left to the people at large. He conceived it would be as unnatural to refer the choice of a proper character for Chief Magistrate to the people, as it would, to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates. M^r Wilson, could not see the contrariety stated (by Col. Mason.) The Legisl^{re} might deserve confidence in some respects, and distrust in others. In acts which were to affect them & y^r Constituents precisely alike confidence was due. In others jealousy was warranted. The appointment to great offices, where the Legisl^{re} might feel many motives, not common to the public confidence was surely misplaced. This branch of business it was notorious, was the most corruptly managed of any that had been committed to legislative bodies. M^r Williamson, conceived that there was the same difference between an election in this case, by the people and by the legislature, as between an app^t by lot, and by choice. There are at present distinguished characters, who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State, and the largest State will be sure to succeed. This will not be Virg^a however. Her slaves will have no suffrage. As the Salary of the Executive will be fixed, and he will not be eligible a 2^d time, there will not be such a dependence on the Legislature as has been imagined. Question on an election by the people instead of the Legislature, which passed in the negative. Mas. no. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no. M^r L. Martin moved that the Executive be chosen by Electors appointed by the several Legislatures of the individual States. M^r Broome 2^{ds}. On the Question, it passed in the negative. Mas. no. Con^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no. On the question on the words, "to be chosen by the Nation^l Legislature" it passed unanimously in the affirmative "For the term of seven years"--postponed nem. con. on motion of M^r Houston and Gov. Morris "to carry into execution the nation^l laws"--agreed to nem. con. "to appoint to offices in cases not otherwise provided for,"--agreed to nem. con. "to be ineligible a second time"--M^r Houston moved to strike out this clause. M^r Sherman 2^{ds} the motion. M^r Gov^r Morris espoused the motion. The ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun shines. On the question for striking out, as moved by M^r Houston, it passed in the affirmative Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay. "For the term of 7 years," resumed. M^r Broom was for a shorter term since the Executive Magistrate was now to be re-eligible. Had he remained ineligible a 2^d time, he should have preferred a longer term. Doc^r M^cClurg moved[134] to strike out 7 years, and insert "during good behavior." By striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent forever on the Legislature; and he conceived the independence of the Executive to be equally essential with that of the Judiciary department. [134] The probable object of this motion was merely to enforce the argument against the re-eligibility of the Executive magistrate by holding out a tenure during good behaviour as the alternate for keeping him independent of the legislature.--Note in Madison's handwriting. M^r Gov^r Morris 2^{ded} the motion. He expressed great pleasure in hearing it. This was the way to get a good Government. His fear that so valuable an ingredient would not be attained had led him to take the part he had done. He was indifferent how the Executive should be chosen, provided he held his place by this tenure. M^r Broome highly approved the motion. It obviated all his difficulties M^r Sherman considered such a tenure as by no means safe or admissible. As the Executive Magistrate is now re-eligible, he will be on good behavior as far as will be necessary. If he behaves well he will be continued; if otherwise, displaced, on a succeeding election. M^r Madison.[135] If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislure, if dependent on the pleasure of that branch for a re-appointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature, by an undue complaisance, and thus render the Legislature the virtual expositor, as well as the maker of the laws. In like manner a dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive & Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded & applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circumstances--1. the collective interest & security were much more in the power belonging to the Executive than to the Judiciary department. 2. in the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter. But if the 2^d consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Execut: than the Judges, & forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a Union between the Executive & Legisl: powers, than between the Judiciary & Legislative powers. He conceived it to be absolutely necessary to a well constituted Republic that the two first sh^d be kept distinct & independent of each other. Whether the plan proposed by the motion was a proper one was another question, as it depended on the practicability of instituting a tribunal for impeachm^{ts} as certain & as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing & discussion, until a less objectionable expedient should be applied for guarding ag^{st} a dangerous union of the Legislative & Executive departments. [135] The view here taken of the subject was meant to aid in parrying the animadversions likely to fall on the motion of D^r M^cClurg, for whom J. M. had a particular regard. The Doc^r though possessing talents of the highest order was modest & unaccustomed to exert them in public debate.--Note in Madison's handwriting. Col. Mason. This motion was made some time ago & negatived by a very large majority. He trusted that it w^d be again negatived. It w^d be impossible to define the misbehaviour in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender holding his office by such a tenure to submit to a trial. He considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary Monarchy. If the motion should finally succeed, he might himself live to see such a Revolution. If he did not it was probable his children or grand children would. He trusted there were few men in that House who wished for it. No state he was sure had so far revolted from Republican principles as to have the least bias in its favor. M^r Madison, was not apprehensive of being thought to favor any step towards monarchy. The real object with him was to prevent its introduction. Experience had proved a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of Republican Gov^t therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view. M^r Gov^r Morris was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to keep out monarchical Gov^t was to establish such a Repub. Gov^t as w^d make the people happy and prevent a desire of change. Doc^r McClurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to Republican Gov^t as not to be sensible of the tyrannies that had been & may be exercised under that form. It was an essential object with him to make the Executive independent of the Legislature; and the only mode left for effecting it, after the vote destroying his ineligibility a second time, was to appoint him during good behavior. On the question for inserting "during good behavior" in place of '7 years (with a re-eligibility)' it passed in the negative, Mas. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.[136] [136] (This vote is not considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the Executive on the Legislature, & thereby facilitate some final arrangement of a contrary tendency. The avowed friends of an Executive, during good behaviour were not more than three or four, nor is it certain they would finally have adhered to such a tenure, an independence of the three great departments of each other, as far as possible, and the responsibility of all to the will of the community seemed to be generally admitted as the true basis of a well constructed government.)--Note in Madison's hand, except from the words "nor is it certain" etc., which is in the hand of his wife's brother, John C. Payne. On the motion "to strike out seven years" it passed in the negative, Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no.[137] [137] (There was no debate on this motion. The apparent object of many in the affirmative was to secure the re-eligibility by shortening the term, and of many in the negative to embarrass the plan of referring the appointment and dependence of the Executive to the Legislature.)--Note in Madison's hand. It was now unanimously agreed that the vote which had struck out the words "to be ineligible a second time" should be reconsidered to-morrow. Adj^d. WEDNESDAY JULY 18. IN CONVENTION. On motion of M^r L. Martin to fix tomorrow for reconsidering the vote concerning "eligibility of the Exec^{tive} a 2^d time" it passed in the affirmative. Mas. ay. Con^t ay. N. J. absent. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. absent. The residue of the Resol. 9. concerning the Executive was postp^d till tomorrow. Resol. 10. that Executive sh^l have a right to negative legislative acts not afterwards passed by 2/3 of each branch, agreed to nem. con. Resol. 11. "that a Nat^l Judiciary shall be estab^d to consist of one supreme tribunal", ag^d to nem. con. "The judges of which to be appoint^d by the 2^d branch of the Nat^l Legislature," M^r Ghorum, w^d prefer an appointment by the 2^d branch to an appointm^t by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execu^{ve} with the advice & consent of the 2^d branch, in the mode prescribed by the constitution of Mas^{ts}. This mode had been long practised in that country, & was found to answer perfectly well. M^r Wilson, still w^d prefer an appointm^t by the Executive; but if that could not be attained, w^d prefer in the next place, the mode suggested by M^r Ghorum. He thought it his duty however to move in the first instance "that the Judges be appointed by the Executive." M^r Gov^r Morris 2^{ded} the motion. M^r L. Martin was strenuous for an app^t by the 2^d branch. Being taken from all the States it w^d be best informed of characters & most capable of making a fit choice. M^r Sherman concurred in the observations of M^r Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2^d branch, than by the Executive. M^r Mason. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides ag^{st} referring the appointment to the Executive. He mentioned as one, that as the Seat of Gov^t must be in some one State, and as the Executive would remain in office for a considerable time, for 4. 5. or 6 years at least, he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion. M^r Ghorum. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters. The Senators will be as likely to form their attachments at the seat of Gov^t where they reside, as the Executive. If they cannot get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibility, and give full play to intrigue & cabal. Rh. Island is a full illustration of the insensibility to character produced by a participation of numbers in dishonorable measures, and of the length to which a Public body may carry wickedness & cabal. M^r Gov^r Morris supposed it would be improper for an impeachm^t of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they w^d be much about the Seat of Gov^t they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments ag^{st} the motion before the House. M^r Madison suggested that the Judges might be appointed by the Executive, with the concurrence of 1/3 at least, of the 2^d branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2^d branch ag^{st} any incautious or corrupt nomination by the Executive. M^r Sherman, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive. M^r Randolph. It is true that when the app^t of the Judges was vested in the 2^d branch an equality of votes had not been given to it. Yet he had rather leave the appointm^t there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving app^{ts} would be more diffusive if they depended on the Senate, the members of which w^d be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened. M^r Bedford thought there were solid reasons ag^{st} leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes. M^r Ghorum remarked that the Senate could have no better information than the Executive. They must like him, trust to information from the members belonging to the particular State where the candidate resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one. On the question for referring the appointment of the Judges to the Executive, instead of the 2^d branch Mas. ay. Con^t no. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. absent. M^r Ghorum moved "that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the 2^d branch & every such nomination shall be made at least ---- days prior to such appointment." This mode he said had been ratified by the experience of a 140 years in Massachus^{ts}. If the app^t should be left to either branch of the Legislature, it will be a mere piece of jobbing. M^r Gov^r Morris 2^{ded} & supported the motion. M^r Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it, as too much fettering the Senate. Question on M^r Ghorum's motion Mas. ay. Con^t no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. absent. M^r Madison moved that the Judges should be nominated by the Executive & such nomination should become an appointment if not disagreed to within ---- days by 2/3 of the 2^d branch. M^r Gov^r Morris 2^{ded} the motion. By co[~m]on consent the consideration of it was postponed till tomorrow. "To hold their offices during good behavior" & "to receive fixed salaries" agreed to nem: con:. "In which (salaries of Judges) no increase or diminution shall be made so as to affect the persons at the time in office." M^r Gov^r Morris moved to strike out "or increase." He thought the Legislature ought to be at liberty to increase salaries as circumstances might require, and that this would not create any improper dependence in the Judges. Doc^r Franklin was in favor of the motion. Money may not only become plentier, but the business of the department may increase as the Country becomes more populous. M^r Madison. The dependence will be less if the _increase alone_ should be permitted, but it will be improper even so far to permit a dependence. Whenever an increase is wished by the Judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt towards the latter. If at such a crisis there should be in Court suits to which leading members of the Legislature may be parties, the Judges will be in a situation which ought not to be suffered, if it can be prevented. The variations in the value of money, may be guarded ag^{st} by taking for a standard wheat or some other thing of permanent value. The increase of business will be provided for by an increase of the number who are to do it. An increase of salaries may easily be so contrived as not to affect persons in office. M^r Gov^r Morris. The value of money may not only alter but the State of Society may alter. In this event the same quantity of wheat, the same value would not be the same compensation. The Amount of salaries must always be regulated by the manners & the style of living in a Country. The increase of business can not be provided for in the supreme tribunal in the way that has been mentioned. All the business of a certain description whether more or less must be done in that single tribunal. Additional labor alone in the Judges can provide for additional business. Additional compensation therefore ought not to be prohibited. On the question for striking out "or increase" Mas. ay. Con^t ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. ay. Geo. absent The whole clause as amended was then agreed to nem: con: 12. Resol: "that Nat^l Legislature be empowered to appoint inferior tribunals" M^r Butler could see no necessity for such tribunals. The State Tribunals might do the business. M^r L. Martin concurred. They will create jealousies & oppositions in the State tribunals, with the jurisdiction of which they will interfere. M^r Ghorum. There are in the States already federal Courts with jurisdiction for trial of piracies &c. committed on the Seas. No complaints have been made by the States or the Courts of the States. Inferior tribunals are essential to render the authority of the Nat^l Legislature effectual. M^r Randolph observed that the Courts of the States can not be trusted with the administration of the National laws. The objects of jurisdiction are such as will often place the General & local policy at variance. M^r Gov^r Morris urged also the necessity of such a provision. M^r Sherman was willing to give the power to the Legislature but wished them to make use of the State Tribunals whenever it could be done with safety to the general interest. Col. Mason thought many circumstances might arise not now to be foreseen, which might render such a power absolutely necessary. On question for agreeing to 12. Resol: empowering the National Legislature to appoint "inferior tribunals," Ag^d to nem. con. "Impeachments of national officers," were struck out on motion for the purpose. 13. Resol: "The jurisdiction of the Nat^l Judiciary." Several criticisms having been made on the definition; it was proposed by M^r Madison so to alter it as to read thus--"that the jurisdiction shall extend to all cases arising under the Nat^l laws; And to such other questions as may involve the Nat^l peace & harmony," which was agreed to, nem. con. Resol. 14. providing for the admission of new States agreed to, nem. con. Resol. 15. that provision ought to be made for the continuance of Cong^s &c. & for the completion of their engagements." M^r Gov^r Morris thought the assumption of their engagements might as well be omitted; and that Cong^s ought not to be continued till all the States should adopt the reform; since it may become expedient to give effect to it whenever a certain number of States shall adopt it. M^r Madison the clause can mean nothing more than that provision ought to be made for preventing an interregnum; which must exist in the interval between the adoption of the New Gov^t and the commencement of its operation, if the old Gov^t should cease on the first of these events. M^r Wilson did not entirely approve of the manner in which the clause relating to the engagements of Cong^s was expressed; but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the Confederacy might be dissolved along with the Govern^t under which they were contracted. On the question on the 1^{st} part--relating to the continuance of Cong^s. Mas. no. Con^t no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C.[138] ay. Geo. no. [138] In the printed Journal, S. Carolina--no. Note in Madison's hand. The 2^d part as to completion of their engagements, disag^d to, nem. con. Resol. 16. "That a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States." M^r Gov^r Morris, thought the Resol: very objectionable. He should be very unwilling that such laws as exist in R. Island should be guaranteed. M^r Wilson. The object is merely to secure the States ag^{st} dangerous commotions, insurrections and rebellions. Col. Mason. If the Gen^l Gov^t should have no right to suppress rebellions ag^{st} particular States, it will be in a bad situation indeed. As Rebellions ag^{st} itself originate in & ag^{st} individual States, it must remain a passive Spectator of its own subversion. M^r Randolph. The Resol^n has 2. objects. 1. to secure a Republican Government. 2. to suppress domestic commotions. He urged the necessity of both these provisions. M^r Madison moved to substitute "that the Constitutional authority of the States shall be guaranteed to them respectively ag^{st} domestic as well as foreign violence." Doc^r McClurg seconded the motion. M^r Houston was afraid of perpetuating the existing Constitutions of the States. That of Georgia was a very bad one, and he hoped would be revised & amended. It may also be difficult for the Gen^l Gov^t to decide between contending parties each of which claim the sanction of the Constitution. M^r L. Martin was for leaving the States to suppress Rebellions themselves. M^r Ghorum thought it strange that a Rebellion should be known to exist in the Empire, and the Gen^l Gov^t sh^d be restrained from interposing to subdue it. At this rate an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partizans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole & the Gen^l Gov^t be compelled to remain an inactive witness of its own destruction. With regard to different parties in a State; as long as they confine their disputes to words, they will be harmless to the Gen^l Gov^t & to each other. If they appeal to the sword, it will then be necessary for the Gen^l Gov^t, however difficult it may be to decide on the merits of their contest, to interpose & put an end to it. M^r Carrol. Some such provision is essential. Every State ought to wish for it. It has been doubted whether it is a casus federis at the present. And no room ought to be left for such a doubt hereafter. M^r Randolph moved to add as an amend^t to the motion; "and that no State be at liberty to form any other than a Republican Gov^t." M^r Madison seconded the motion. M^r Rutlidge thought it unnecessary to insert any guarantee. No doubt could be entertained but that Cong^s had the authority if they had the means to co-operate with any State in subduing a rebellion. It was & would be involved in the nature of the thing. M^r Wilson moved as a better expression of the idea, "that a Republican form of Governm^t shall be guaranteed to each State & that each State shall be protected ag^{st} foreign & domestic violence. This seeming to be well received, M^r Madison & M^r Randolph withdrew their propositions & on the Question for agreeing to M^r Wilson's motion, it passed nem. con. Adj^d. END OF VOL. 1. Transcriber Notes: Passages in italics were indicated by _underscores_. Small caps were replaced with ALL CAPS. Throughout the document, the oe ligature was replaced with "oe". Throughout the document, a tilded m is represented by [~m], and a tilded nn is represented by [~nn]. Throughout the document, a single superscripted letter is represented by that single letter preceded by a caret, and more than one superscripted letters are represented by the letters enclosed by curly brackets. Thus, the word "y^e" represents a word where the "y" is normal and the "e" is superscripted; and the word "2^{dnd}" represents a word where the "2" is normal and the "dnd" is superscripted. In both conventions, it is assumed that a dot appeared below the superscripted letters, since in the original text a dot was often (but not always) present under the superscripted letters. Thus, "2^{dnd}" in the present text would represent a normal digit "2" followed directly by the superscripted letters "dnd" with a single dot below the set of three letters. The Contents of Volume I. page incorrectly lists the Chronology as starting on page xix, where it starts on page xv. The illustrations have been moved so that they do not break up paragraphs and so that they are next to the text they illustrate. Thus the page number of the illustration might not match the page number in the List of Fac-Similes, and the order of illustrations may not be the same in the List of Fac-Similes and in the book. This document was filled with errors and inconsistencies in punctuations and hyphenation. For example, usually the word re-eligible is hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated but sometimes it is not; and usually the comma is used as a thousand mark, but sometimes a period is used for that purpose. Also, the abbreviations were not uniform (e.g., Mas. v. Mass.), which were only corrected when it was clear which abbreviation was considered correct at the time printed. Another example is the abbreviation for Resolution, which was sometimes Resol:^n, sometimes Resol^n, and sometimes Resol.^n Sometimes "nem: con." was used, and sometimes "nem. con." was used. The only time errors were corrected was when it was very clear that an error was made, and it was clear how the error should be corrected, and those corrections are listed below. Two exceptions are the case where a period is missing at the end of a sentence or missing at the end of an abbreviation, both of which happened so often that those corrections were made but were not listed below. Similarly, since the English language has changed so much in the past two hundred years, variations in spelling were only corrected was when it was very clear that an error was made, and it was clear how the error should be corrected. Those corrections are listed below. In Footnote 25, two instances of "thier" was replaced with "their". On page 23, a comma was added after "Massachusetts". On page 23, a comma was added after "New York". On page 39, a comma was added after "Savannah Georgian". On page 42, the semicolon after "for general propositions" was replaced with a period. On page 49, a quotation mark was added after "be instituted.". On page 67, "tranquility" was replaced with "tranquillity". On page 80, "is to to be" was replaced with "is to be". On page 85, a period was added after "2". On page 85, a period was added after "4". On page 87, a comma was added after "the landed". On page 104, "that" was replaced with "than". On page 105, "M^r Bedford In" was replaced with "M^r Bedford, in". On page 109, "M^r Randolph, urged" was replaced with "M^r Randolph urged". On page 117, "against the 43." was replaced with "against the 43,". On page 119, "it was formerly practised" was replaced with "It was formerly practised". On page 119, "Wilsons" was replaced with "Wilson's". On page 128, a closing quotation mark was placed after "7 years." On page 143, a period was added after "2". On page 159, "unamimous" was replaced with "unanimous". On page 162, the quotation mark was removed before "The supreme Legislative power". In Footnote 89, "conpensation" was replaced with "compensation". In Footnote 89, "misdemesnor" was replaced with "misdemeanor". In Footnote 89, "Where shall be" was replaced with "There shall be". In Footnote 89, "§[2]" was replaced with "§ 2.". On page 164, "Comittee" was replaced with "Committee". On page 180, "tranquility" was replaced with "tranquillity". On page 184, "necessaryly" was replaced with "necessarily". In Footnote 95, "posseses" was replaced with "possesses". On page 211, "Wiliamson" was replaced with "Williamson". On page 217, in two instances, "Masst^s" was replaced with "Mass^{ts}". On page 220, a comma was deleted after "M^r Sherman". On page 233, a period was placed after "1". On page 236, a quotation mark was placed after "behaviour". On page 256, a comma was placed after "Antient Greece". On page 264, a semicolon was replaced with a period. On page 271, "Comittee" was replaced with "Committee". On page 274, "prepondenancy" was replaced with "preponderancy". On page 285, "Elsewth" was replaced with "Elseworth". On page 285, "Contstitution" was replaced with "Constitution". On page 286, "honorabl" was replaced with "honorable". On page 292, "occcasion" was replaced with "occasion". On page 293, "N J." was replaced with "N. J.". On page 322, "Teusday" was replaced with "Tuesday". On page 322, "Hamshire" was replaced with "Hampshire". On page 323, "Hamshire" was replaced with "Hampshire". On page 323, "inhabts" was replaced with "inhab^{ts}". On page 323, "brethern" was replaced with "brethren". On page 330, "brethern" was replaced with "brethren". On page 336, "Mississpi" was replaced with "Mississippi". On page 340, "Mard" was replaced with "M^d". On page 340, "S." was replaced with "S. C.". On page 348, "Hamshire" was replaced with "Hampshire". On page 356, "weekest" was replaced with "weakest". On page 365, "orginal" was replaced with "original". On page 372, the quotation mark was removed before "or in which the harmony". Throughout the document, there are instances of missing quotation marks, but it is unclear where quotation marks should be added. In those cases, the quotation marks were left as-is. Throughout the document, "Maddison" was replaced with "Madison", and "Sharman" was replaced with "Sherman". Although the document refers more often to a Mr. Patterson, instead of Mr. Paterson, some external sources indicate that the delegate's name was Mr. Paterson. Both spellings were retained as-is. 
39502	----	Richard Rogers Bowker COPYRIGHT: ITS HISTORY AND ITS LAW. THE ARTS OF LIFE. OF BUSINESS. OF POLITICS. OF RELIGION. OF EDUCATION. HOUGHTON MIFFLIN COMPANY BOSTON AND NEW YORK COPYRIGHT ITS HISTORY AND ITS LAW BEING A SUMMARY OF THE PRINCIPLES AND PRACTICE OF COPYRIGHT WITH SPECIAL REFERENCE TO THE AMERICAN CODE OF 1909 AND THE BRITISH ACT OF 1911 BY RICHARD ROGERS BOWKER BOSTON AND NEW YORK HOUGHTON MIFFLIN COMPANY The Riverside Press Cambridge 1912 COPYRIGHT, 1912, BY R. R. BOWKER ALL RIGHTS RESERVED FOR ALL COUNTRIES _Published March 1912_ FOREWORD {Sidenote: Copyright progress} The American copyright code of 1909, comprehensively replacing all previous laws, a gratifying advance in legislation despite its serious restrictions and minor defects, places American copyright practice on a new basis. The new British code, brought before Parliament in 1910, and finally adopted in December, 1911, to be effective July 1, 1912, marks a like forward step for the British Empire, enabling the mother country and its colonies to participate in the Berlin convention. Among the self-governing Dominions made free to accept the British code or legislate independently, Australia had already adopted in 1905 a complete new code, and Canada is following its example in the measure proposed in 1911, which will probably be conformed to the new British code for passage in 1912. Portugal has already in 1911 joined the family of nations by adherence to the Berlin convention, Russia has shaped and Holland is shaping domestic legislation to the same end, and even China in 1910 decreed copyright protection throughout its vast empire of ancient and reviving letters. The Berlin convention of 1908 strengthened and broadened the bond of the International Copyright Union, and the Buenos Aires convention of 1910, which the United States has already ratified, made a new basis for copyright protection throughout the Pan American Union, both freeing authors from formalities beyond those required in the country of origin. Thus the American dream of 1838 of "a universal republic of letters whose foundation shall be one just law" is well on the way toward realization. {Sidenote: Field for the present treatise} In this new stage of copyright development, a comprehensive work on copyright seemed desirable, especially with reference to the new American code. Neither Eaton S. Drone nor George Haven Putnam were disposed to enter upon the task, which has therefore fallen to the present writer. He hopes that his participation for the last twenty-five years in copyright development,--during which, as editor of the _Publishers' Weekly_ and of the _Library Journal_, he has had occasion to keep watch of copyright progress, and as vice-president of the American (Authors) Copyright League, he has taken part in the copyright conferences and hearings and in the drafting of the new code,--will serve to make the present volume of use to his fellow members of the Authors Club and to like craftsmen, as well as to publishers and others, and aid in clarifying relations and preventing the waste and cost of litigation among the coördinating factors in the making of books and other forms of intellectual property. {Sidenote: Authorities and acknowledgments} The present work includes some of the historical material of the Bowker-Solberg volume of 1886, "Copyright, its law and its literature." This material has been verified, extended and brought up to date, especially in the somewhat detailed sketch of the copyright discussions and legislation resulting in the "international copyright amendment" of 1891 and the code of 1909. The volume is in this respect practically, and in other respects entirely new. It has had the advantage of the cordial co-operation of the copyright authorities at Washington, especially the Librarian of Congress, Herbert Putnam, and the Register of Copyrights, Thorvald Solberg; also of helpful courtesy from the Canadian Minister of Agriculture in the recent Laurier administration, Sidney Fisher, and the Canadian Registrar of Copyrights, P. E. Ritchie, and of Prof. Ernest Röthlisberger, editor of the _Droit d'Auteur_, and one of the best authorities on international copyright. This acknowledgment of obligation is not to be taken as assuming for the work official sanction and authority, though so far as practicable, it reflects the opinions of the best authorities. The writer has also consulted freely--but it is hoped always within the limits of "fair use"--the best law book writers, especially Drone, Copinger, Colles and Hardy, and MacGillivray, to whom acknowledgment is made in the several chapters. Acknowledgment is also made for the courtesies of Sir Frederick Macmillan, G. Herbert Thring, secretary of the British Society of Authors, and others numerous beyond naming. But most of all the writer is indebted to the intelligent and capable helpfulness of Carl L. Jellinghaus, who as private secretary, has been both right hand and eyes to the writer, and besides participating in the work of research, is largely responsible for the index and other "equipment" of the volume. {Sidenote: Method and form} Copyright law is exceptionally confused and confusing, and even the new American and British codes are not without such defects. Specific subjects are so interdependent that it has been difficult to make clear lines of division among the several chapters, and there is necessarily repetition; it has been the endeavor to concentrate the main discussion in one place, designated in the index by black face figures, with subordinate references in other chapters. Ambiguities in the text of this volume often reflect ambiguities in the laws, particularly of foreign countries. Where acts, decisions, etc., are quoted in the text or given in the appendix, spelling, capitalization, punctuation, headings, etc., follow usually the respective forms, thus involving apparent inconsistencies. Side-headings in the appendix follow usually the official form, unless shortened to prevent displacement. Translations of foreign conventions follow usually the official text of the translation, but have been corrected or conformed in case of evident error or variance. Citation of cases is confined for the most part to ruling or recent cases or those of historic importance or interest. Though it has not been practicable to verify statements from the copyright laws of so many countries in divers languages, a fairly comprehensive and accurate statement of the _status_ of copyright throughout the world is here presented. The present work, originally planned for publication in 1910, has been held back and alterations and insertions made to bring the record of legislation to the close of 1911. For those who wish to keep their copyright knowledge up to date, the _Publishers' Weekly_ will endeavor to present information as to the English speaking world, and the monthly issues of the _Droit d'Auteur_ of Berne, under the editorship of Prof. Röthlisberger, will be found a comprehensive and adequate guide. {Sidenote: Advocates of authors' rights} The preparation of this work brings a recurring sense of the losses which the copyright cause has suffered during the long campaign for copyright reform, beginning in the American Copyright League, under the presidency of James Russell Lowell, and continued under that of Edmund Clarence Stedman, both of whom have passed over to the majority. Bronson Howard, always active in the counsels of the League as a vice-president, and the foremost advocate of dramatic copyright as president of the American Dramatists Club, failed, like Stedman, to see the fulfillment of his labors in the passage of the act of 1909. George Parsons Lathrop, Edward Eggleston, Richard Watson Gilder, "Mark Twain" and other ardent advocates of the rights of the author, gave large share of enthusiasm and effort to the cause. Happily the two men who for the last twenty years and more have labored at the working oar for the Authors League and for the Publishers League, are still active in the good work, ready to defend the code against attack and eager to forward every betterment that can be made; to Robert Underwood Johnson, the successor of the lamented Gilder as editor of the Century, and to George Haven Putnam, the head of the firm which still bears the name of his honored father, authors the world over owe in great measure the progress which has been made in America toward a higher ideal for the protection of authors' rights. {Sidenote: Copyright evolution} It may be noted that while throughout the British Empire English precedent is naturally followed, the more restrictive American copyright system has unfortunately influenced legislation in Canada and Newfoundland, and in Australia. France, open-handed to authors of other countries, has afforded precedent for the widest international protection and for the international term; while Spain, with the longest term and most liberal arrangements otherwise, has been followed largely by Latin American countries. The International Copyright Union has reached in the Berlin convention almost the ideal of copyright legislation, and this has been closely followed in the Buenos Aires convention of the Pan American Union. The world over, there seems to have been a general evolution of copyright protection from the rude and imperfect recognition of intellectual property as cognate to other property, for a term indefinite and in a sense perpetual, almost impossible of enforcement in the lack of statutory protection and penalties. Systems of legislation, at first of very limited term and of restricted scope, have led up to the comprehensive codes giving wide and definite protection for all classes of intellectual property for a term of years extending beyond life, with the least possible formalities compatible with the necessities of legal procedure. Unfortunately in the United States of America the forward movement which produced the "international copyright amendment" of 1891 and the code of 1909, conspicuously excellent despite defects of detail, was in some measure offset by retrogression, as in the manufacturing restrictions. Until this policy, which still remains a blot on the 'scutcheon, is abandoned, as the friends of copyright hope may ultimately be the case, the United States of America cannot enter on even terms the family of nations and become part of the United States of the world. R. R. BOWKER. December, 1911. POSTSCRIPT. Since this book has been passing through the press, Cuba has been added to the countries in reciprocal relations with the United States with respect to mechanical music by the President's proclamation of November 27, 1911; Russia has made with France its first copyright treaty, in conformity with the new Russian code of 1911; and the new British code, referred to on p. 33, having passed the House of Commons August 17, passed the House of Lords December 6, and after concurrence by the House of Commons in minor amendments, mostly verbal, became law by Crown approval, December 16, 1911, as noted on p. 374. The text of the act in the appendix follows the official text as it now stands on the English statute books; the summary (pp. 374-80) describes the act as it became law--and the earlier references are in accordance therewith, with a few exceptions. These exceptions mostly concern immaterial changes, made in the House of Lords. Within January, 1912, Brazil has adopted a new measure for international copyright, and a treaty has been signed between the United States and Hungary, the twenty-fifth nation in reciprocal relations with this country. CONSPECTUS OF COPYRIGHT BY COUNTRIES Page xi Under the names of countries are given dates of the basic and latest amendatory laws. International relations are shown by the name in SMALL CAPS of the convention city when a country is a party to the International Copyright Union or the Pan American conventions, and by the names of countries with which there are specific treaties, excepting those within the union or conventions. The general term of duration is entered, without specification of special terms for specific classes. Places of registration and deposit are indicated by R and D when these are not the same. The number of copies required and in some cases period after publication within which deposit is required are given in parentheses. Notice of copyright or of reservation is indicated. Special exceptions or conditions are noted so far as practicable under remarks. An asterisk indicates that specific exceptions exist. The International Copyright Union includes (A) under the Berlin convention, 1908 (a) without reservation Germany, Belgium, Luxemburg, Switzerland, Spain, Monaco, Liberia, Haiti, Portugal, and (b) with reservation France, Norway, Tunis, Japan; (B) under the Berne convention, 1886, and the Paris additional act and interpretative declaration, 1896, Denmark, Italy; (C) under the Berne convention, 1886, and the Paris additional act, 1896, Great Britain; (D) under the Berne convention, 1886, and the Paris interpretative declaration, 1896, Sweden. The Pan American conventions agreed on at Mexico City, 1902, Rio de Janeiro, 1906, and Buenos Aires, 1910, have not been ratified except that of Mexico by the United States and by Costa Rica, Guatemala, Honduras, Nicaragua, Salvador, and doubtfully by Cuba and Dominican Republic; that of Rio by a few states insufficient to make it anywhere operative; and that of Buenos Aires by the United States. The South American convention of Montevideo, 1889, has been accepted by Argentina, Paraguay and Uruguay, Peru and Bolivia, and has the adherence (in relation with Argentina and Paraguay only) of Belgium, France, Italy and Spain. The five Central American states have a mutual convention through their Washington treaty of peace of 1907. --------------------------------------------------------------------------- Countries | International | | Registration| | Dates of laws| relations | Duration| and Deposit | Notice | Remarks --------------+-----------------+---------+-------------+---------+-------- {Sidenote: North America: English} North America | | | | | (ENGLISH- | | | | | SPEAKING) | | | | | United States |MEXICO, B. AIRES,| 28 + 28 |Library of |"Copy |Manufac- 1909 |Gt. Brit., Belg.,| |Congress (2 |-right, |ture |China, Den., Fr.,| |"promptly") |19--, by |within |Ger., It., Jap., | | |A. B." or|U. S. for |Lux., Nor., Sp., | | |statutory|books, |Swe., Switz., | | |equiva- |etc. |Aust., Hol., | | |lent | |Port., Chile, | | | | |Costa R., Cuba, | | | | |Mex. | | | | Canada |_See_ Gt. Brit. | 28 + 14 |Dept. of |"Copy- |Printing 1875-1908 |(Aus.-Hung. | |Agriculture: |right, |and publ. [1912 ?] |excepted) | |Copyright |Canada |within | | |Branch (3) |19--, by |Canada.* | | | |A. B." or| | | | |signature| | | | |of artist| Newfoundland |_See_ Gt. Brit. | 28 + 14 |Colonial |"Entered,|Printing 1890-1899 | | |Sec. (2) |Newf.... |and publ. | | | |by A. B."|within | | | |etc. or |Newf.* | | | |signature| | | | |of artist| Canal Zone | | | | | (U. S.) |_See_ U. S. | | | | Porto Rico | | | | | (U. S.) |_See_ U. S. | | | | Jamaica (Br.) |_See_ Gt. Brit. | Life + 7|(3 or 1* | None | 1887 | | or 42* |within mo.) | | Trinidad (Br.)|_See_ Gt. Brit. | Life + 7|Registrar of | None | 1888 | | or 42* |copyright (3 | | | | | within mo.) | | {Sidenote: Europe: English} Europe | | | | | Great Britain |BERNE-PARIS A | Life + 7|R Stationers | None* |First or & Ireland |U. S., Aus.- | or 42* |Hall (before | |simulta- D 1842-1906 |Hung.* | [Life + |suit)* | [None] |neous pub- I 1844-1886 | | 50*] |D British | |lication | | |Museum (1) | | [1911] | | |+ 4 library |[No reg- |[In | | |copies (on |istra- | effect | | |demand)* |tion] |1912] Isle of Man |_See_ Gt. Brit. | | | | 1907 | | | | | Channel Isles |_See_ Gt. Brit. | | | | {Sidenote: French} France |BERLIN* MONTV.* |Life |D Ministry | None | 1793-1910 |U. S., Aus-Hung.,| + 50* |of Interior | | |Hol., Port., | |or prefecture| | |Mont., Roum., | |(2 before | | |Lat. Amer. | |suit)* | | Belgium |BERLIN, MONTV.* |Life + 50| None* | None* | 1886 |U. S., Aus., | | | | |Hol., Port., | | | | |Roum., Mex. | | | | Luxemburg |BERLIN |Life | None* | None* | 1898 |U. S. |+ 50* | | (res. | | | | | playr.)| Holland |U. S., Belg., | 50 or |Dept. of | None* |Printing 1881 |Fr. | life* |Justice (2 | (res. |within [1912?] | | |within mo.) | trans. |Holland | | | | playr.) | {Sidenote: German} Germany |BERLIN | Life | None* | None* | 1901-1910 |U. S., Aus.-Hung.| + 30* | | | Austria |Hung., U. S., | Life | None* | None* | 1895, 1907 |Gt. Brit.,* Belg.| + 30* | |(res. | |Den, Fr., Ger., | | | trans. | |It., Roum., Swed.| | | photos, | | | | | mus.) | Hungary |Aust., Gt. | Life | None* | None* | 1884 |Brit.,*Fr., Ger.,| + 50* | | (res. | |It. | | | trans. | | | | | photos) | {Sidenote: Scandinavian} Switzerland |BERLIN | Life |R. Office of | None* | 1874, 1883 |U. S. | + 30* |Intel. Prop. | (res. | | | |optional* | playr.) | Denmark |BERNE-PARIS | Life | None* | None* | 1865-1911 |U. S., Aus. | + 50* | |(photos, | | | | | res. | | | | | music) | Iceland (Den.)|_See_ Denmark | | | |As in 1905 | | | | |Denmark Norway |BERLIN* |Life | None* | None* | 1877-1910 |U. S. | + 50* | |(photos, | | | | | res. | | | | | music) | Sweden |BERNE-PARIS D |Life | None | None* | 1897-1908 |U. S., Aus. | + 50* | |(photos, | | | | | res. | | | | | playr.) | {Sidenote: Russian} Russia |France | Life | | None* | 1911 | | + 50* | |(photos, | | | | | res. | | | | | trans. | | | | | mus.) | Finland | None | Life | None* | None* | 1880 | | + 50* | | | {Sidenote: Southern} Spain |BERLIN, MONTV.* | Life |Register of | None* |Special 1879-1896 |U. S., Port., | + 80* |Intel. Prop. | |provisions |Lat. Amer. | |(3 within | | | | |one year*) | | Portugal |BERLIN | Life |Pub. Lib.* | None | 1867, 1886 |U. S., It., Sp., | + 50* |(2 before | | |Bra. | |pub.) | | Italy |BERNE-PARIS |Life or |Prefecture | None* |Added 1882, 1889, |MONTV.* | 40* |(3 within |(res. |40 yrs. on 1910 |U. S., Aus.- | + 40* |3 months)* |trans.) |royalty of |Hung., Mont., | | | |5 p. c. |Port., Roum., | | | | |San. Mar., | | | | |Lat. Amer. | | | | {Sidenote: Europe: Minor States} San Marino |_See_ Italy | | | |As in Monaco |BERLIN |Life + | None | None* | Italy 1889, 1896 | | 50* | | | Greece | None | 15 + * |D (4 within | | 1833-1910 | | |10 days*) | | Malta, Cyprus,|_See_ Gt. Brit. |Life + 7 |D (3 within | | etc. (Br.) | |or 42* |mo.) | | {Sidenote: Balkan States} Montenegro |Fr., It. | | | |Uncertain | | | | |protection Bulgaria | | | | |Uncertain 1896? | | | | |protection Servia | | | | |No | | | | |protection Roumania |Aus., Belg., Fr.,|Life + 10|R. Min. of | | 1862-1904 |It. | |Instruc. | | Turkey | None |Life + |Min. of Pub. | None. | 1910 | | 30* |Instruc. (3)*| | {Sidenote: Asia} Asia | | | | | Japan |BERLIN* |Life + |R. Ministry | None* | 1899, 1910 |U. S.,* China | 30* |of Int. | | | | |(before suit)| | Korea |_See_ Japan | | | |As in 1908 | | | | | Japan China |U. S.,* Japan |Life + |Ministry of | | 1910 | | 30* |Int. (2) | | Hong Kong |_See_ Gt. Brit. |Life + 7 |D (3 within | | (Br.) | |or 42* |mo.) | | Philippines |_See_ U. S. | | | | (U. S.) | | | | | India, British|_See_ Gt. Brit. |Life + 7 |D (3 |Printer's| 1847, 1867 | |or 42* |within mo.) |and pub- | | | | |lisher's | | | | |name on | | | | |work | Ceylon, etc. |_See_ Gt. Brit. |Life + 7 |D (3 within | | (Br.) | |or 42* |mo.) (4 | | | | |within yr.) | | Siam | None |Life + 7 | | | 1901 | |or 42* | | | Persia | None | | | |No pro- | | | | | tection {Sidenote: Africa} Africa | | | | | Egypt | None |Indef- | | |Court pro- | | inite | | | tection Tunis |BERLIN* |Life + | | |As in 1889 | | 50* | | | France Algeria (Fr.) |_See_ France | | | | Sierra Leone, |_See_ Gt. Brit. |Life + 7 |D (3)* | | etc (Br.) | |or 42* | | | 1887 | | | | | Liberia |BERLIN |Indef- | | |Without | |inite | | |specific | | | | |law Congo Free |Belg., Fr. | | | |Punishes State |(extradition) | | | |fraud only So. Africa |_See_ Gr. Brit.* | | | | (Br.) |Aus.-Hung., | | | | |excepted | | | | Cape Colony | |Life + 5 |Registrar of | | 1873-1895 | |or 30* |Deeds | | | | |D (4 within | | | | |mo.)* | | Natal | |Life + 7 |Colonial | | 1895-1898 | |or 42* |Sec., D (2 | | | | |within 3 | | | | |mos.)* | | Transvaal, | |50 or |Registrator | Reserv. |Printing etc. 1887 | |life* |D (3 within | of |within | | |2 mos.)* | playr. |colony* | | | | and | | | | | trans. | {Sidenote: America, Latin: Mexico Central America} Latin America | | | | | Mexico |U. S., Dom. Rep.,|Perpetu- |R. Min. | None* | 1871, 1884 | Ecu., Belg., |ity* |Pub. Instruc.|(res. | |Fr., It., Sp. | |D (2)* |trans.) | Costa Rica |MEXICO |Life + |Office of | None | 1880-1896 |U. S., Sp., Fr. |50* |Pub. Libs. | | |Guat., Sal., Hon.| |(3)* | | | | |within yr.* | | Guatemala |MEXICO |Perpetu- |Min. of Pub. |(res. | 1879 |Sp., Fr., |ity |Educ. |trans.) | |Costa R. | |(4)* | | Honduras |MEXICO |Indef- | | |No speci- 1894, 1898 |Costa R. | inite | | |fic law Nicaragua |MEXICO |Perpetu- |Min. of |(res. | 1904 | It. |ity* |Agric. (6*) |trans.) | Salvador |MEXICO |Life + |D Min. of | None |Publi- 1886, 1900 |Sp., Fr., |25* |Agric. | |cation |Costa R. | |(1 before | |within | | |pub.) | |country Panama | None |Life + 80| | |As in 1904 | | | | |Colombia {Sidenote: West Indies} Cuba |MEXICO? |Life + |Dept. of | None | 1879-1909 |U. S., It. | 80* |State (3) | | Haiti |BERLIN |Life + * |D Dept. of | None | 1885 | | |Int., (5 | | | | |within yr.) | | Dominican Rep.|MEXICO? Mex. |Uncertain| | | 1896 | | | | | {Sidenote: South America} Brazil |Portugal |50* from |Nat. Lib. (1 | None* | 1891-1901 | |the 1st |within 2 |(res. | | |Jan. of | yrs.) |playr.) | | |yr. of | | | | |pub. | | | Argentina |MONTEVIDEO |Life + |Nat. Lib. | None* | 1910 |Belg., Sp., Fr., |10* |(2 within 15 | | |It. | |or 30 days) | | Uruguay |MONTEVIDEO |Indefin- | | |No speci- 1868 | |ite | | |fic law Paraguay 1870,|MONTEVIDEO Belg.,| |Public | |Under 1881, 1910 | Sp., Fr., It. | |registries | |penal code Chile |U. S. |Life + 5*|D Nat. Pub. | None | 1833-1874 | | |Lib. (3)* | | Peru |MONTEVIDEO |Life + |D Pub. Lib. | None | 1849, 1860 | |20* |(1) + Dept. | | | | |Pref. (1) | | Bolivia |MONTEVIDEO |Life + |R Min. of | | 1834, 1909 |Fr. | 30* |Pub. Instruc.| | | | |D Pub. Lib. | | | | |(1 within | | | | | yr.) | | Ecuador |Sp., Fr., Mex. |Life + |Min. of | None* | 1884, 1887 | | 50* |Pub. Educ. |(res. | | | |(3 within 6 |playr.) | | | |mos.)* | | Colombia |Sp., It. |Life + |Min. of | None | 1886, 1890 | | 80* |Pub. Educ. | | | | |(3 within | | | | |yr.)* | | Venezuela | None. |Perpetu- |Registry (6) |Notice of| 1894, 1897 | |ity | |patent | {Sidenote: Australasia} Australasia | | | | | Australia |_See_ Gt. Brit.* |Life + 7 |Commonwealth |Reserv. | (Br.) 1905 |Aus.-Hung. |or 42* |Copyr. Office| per- | |excepted | |D (2) | forming | New Zealand |_See_ Gt. Brit. |28 or |R Registrar | right | (Br.) | | life* |of Coprs.* D | | 1842-1903 | | |libr. of Gen.| | | | |Assem. (for | | | | |plays only) | | Hawaii (U. S.)|_See_ U. S. | | | | --------------------------------------------------------------------------- CONTENTS Page xv PART I NATURE AND DEVELOPMENT OF COPYRIGHT I. THE NATURE AND ORIGIN OF COPYRIGHT 1-7 Copyright meaning, 1--Its two senses, 1--Blackstone, 2--Property by creation, 3--Property in unpublished works, 4--The question of publication, 5--Inherent right, 5--Statutory penalties, 6--Statute of Anne, 6--Supersedure of common law right, 7. II. THE EARLY HISTORY OF COPYRIGHT 8-23 In classic times, 8--Roman law, 8--Monastic copyists, 8--St. Columba and Finnian, 9--University protection, 9--Invention of printing, 10--In Germany, 10--In Italy: Venice, 13--Florence, 17--Control of Church, 17--In France, 17--In England, 19--The Stationers' Company, 21--Statutory provisions, 22. III. THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND 24-34 The Statute of Anne as foundation, 24--Its relations to common law, 24--The crucial case, 25--The Judges' opinions, 25--The Lords' decision, 26--Protests, 26--Supplementary legislation, 26--Georgian period, 27--Legislation under William IV, 28--Victorian act of 1842, 28--Protection of designs, 29--Subsequent acts, 29--Royal Commission report of 1878, 30--Later legislation, 31--International copyright, 31--Musical copyright, 31--Conference reports, 1909, 32--Act of 1911, 32--Design patents, 33--Common law rights, 34. IV. THE HISTORY OF COPYRIGHT IN THE UNITED STATES 35-41 Constitutional provision, 35--Early state legislation, 35--Act of 1790, 35--1802-1867, 36--Revised act of 1870, 37--1874-1882, 37--International copyright legislation, 1891, 37--Private copyright acts, 38--American possessions, 38--American code of 1909, 39--State protection of playright, 39--Trade-Mark act, 40--Common law relations, 40. PART II LITERARY AND GENERAL COPYRIGHT V. SCOPE OF COPYRIGHT: RIGHTS AND EXTENT 42-62 General scope, 42--American provisions, 42--Oral addresses, 42--Dramas, 42--Music, 43--Previous American law, 43--Unpublished works, 43--Common law scope, 44--Common law in U. S. practice, 44--Statutory limitations, 44--General rights, 45--Inferential rights, 46--Differentiated rights, 46--Court protection, 46--Division of rights, 46--Analysis of property rights, 47--Broad interpretation, 48--Limits of protection, 48--Differentiated contracts, 48--Enforcement in limited grants, 49--Copyright as monopoly, 50--Altered theory of copyright, 52--Publishing, 52--What constitutes publishing, 53--"Privately printed" works, 53--Copying, 53--Vending, 54--Control of sale, 54--Macy cases, 55--Bobbs-Merrill case, 56--Scribner case, 56--English underselling case, 57--Suits under state law, 57--Translating, 58--"Other version," 58--Translating term, 58--Oral delivery, 59--"Publicly and for profit," 59--Material and immaterial property, 60--Schemes not copyrightable, 61--New British code, 61--Foreign statutes, 62--International provisions, 62. VI. SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED 63-94 Subject-matter in general, 63--Classification, 63--Prints and labels excluded, 64--All the writings of an author, 64--Component parts, 64--Compilations, new editions, etc., 64--Non-copyrightable works, 65--Government use, 65--"Author" and "writing" definitions, 66--Interpretation by Congress and courts, 66--Supreme Court decisions, 67--Originality and merit, 68--"Book" definitions, 68--Blank books, 72--Combinations and arrangements, 73--Advertisements, 73--New editions, 75--Copyright comprehensive, 76--Non-copyrightable parts excepted, 76--Book illustrations, 77--Translations, 77--Translator's rights, 78--English practice, 79--Translations in international relations, 79--Foreign translators, 79--Abridgments, 80--Compilations, 81--Collections, 81--Titles, 82--Changed titles, 82--Titles as trade-marks, 83--"Chatterbox" cases, 84--Projected titles, 85--Projected works not copyrightable, 86--Immoral works, 86--Periodicals, 87--Definition of periodicals, 87--Periodicals under manufacturing clause, 88--Periodicals copyrightable by numbers, 88--News, 89--British periodicals, 90--Oral works, 90--Newspaper reports, 91--Lectures in England, 91--Letters, 91--Designs patentable, 93--Foreign practice, 94--International definition, 94. VII. OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT 95-113 Persons named, 95--The author primarily, 95--Claimant's right to register, 96--Employer as author, 97--Implied ownership, 98--Protection outside of copyright, 98--Work in cyclopædias, 99--Association of author's name, 100--Added material and alteration, 100--Separate registration of contributions, 100--Anonymous works, 101--Joint authorship, 101--Corporate bodies, 102--Posthumous works, 102--Peary cases, 102--Renewal rights, 104--Assignments, 104--Assignment record, 105--Substitution of name, 105--Witnesses, 106--"Outrights" and renewal, 106--Proof of proprietorship, 107--Foreign citizens, 107--Earlier provisions, 108--Residence, 108--Intending citizens, 109--Time of first publication, 109--Non-qualified authors, 110--Foreign ownership, 111--"Proclaimed" countries, 111--Buenos Aires convention, 113--New British code, 113--Foreign practice, 113. VIII. DURATION OF COPYRIGHT: TERM AND RENEWAL 114-124 Historic precedent, 114--Previous American practice, 114--Term in code of 1909, 115--Renewal, 115--Extension of subsisting copyrights, 116--Assignee of unpublished manuscripts, 116--Extension of subsisting renewals, 117--Publishers' equities, 117--Estoppel of renewal, 118--Life term and beyond, 118--Unpublished works, 119--Publication as date of copyright, 119--Serial publication, 120--Joint authorship, 120--Forfeiture, 121--Abandonment, 121--In England, 121--New British code, 122--Perpetual copyright, 123--Other countries, 124--International standard term, 124--Special categories, 124. IX. FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION AND DEPOSIT 125-152 General principles, 125--Previous American requirements, 125--Present American basis, 126--Provisions of 1909, 126--Publication, 126--Copyright notice, 127--Previous statutory form, 128--Exact phraseology required, 128--Name, 129--Date, 129--Accidental omission, 130--Place of notice, 131--One notice sufficient, 131--Separate volumes, 132--Different dates, 133--Extraterritorial notice, 133--Successive editions, 134--False copyright notice, 134--_Ad interim_ protection, 135--Substitution of name, 135--Registration, 136--Rules and regulations, 136--Application, 136--Certificate, 136--Application requirements, 137--Illustrations, 138--Periodicals, 138--Application cards, 139--Certificate cards, 140--Fees, 141--Deposit, 142--Fragment not depositable, 143--Typewriting publication and deposit, 143--Legal provisions, 143--Failure to deposit, 144--Forfeiture by false affidavit, 144--Works not reproduced, 144--Second registration, 145--Free transportation in mail, 145--Loss in mail, 145--Foreign works, 146--_Ad interim_ deposit, 146--Completion of _ad interim_ copyright, 147--Omission of copyright notice, 148--Books only _ad interim_, 148--Exact conformity required, 149--Expunging from registry, 150--British formalities, 150--New British code, 151--Other countries, 151--International provisions, 152. X. THE AMERICAN MANUFACTURING PROVISIONS 153-161 Manufacturing provision of 1891, 153--Text in 1909 code, 153--Scope and exceptions, 154--Changes, 1891-1909, 154--German-American instances, 155--Dramas excepted, 155--Exception of foreign original texts, 156--Exception of foreign illustrative subjects, 156--Affidavit requirement, 156--Avoidance of errors, 157--Forfeiture by false affidavit, 158--Exact compliance necessary, 158--Importation questions, 159--Foreign manufacturing provisions, 160--English patent proviso, 161. PART III DRAMATIC, MUSICAL AND ARTISTIC COPYRIGHT XI. DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT 162-201 Dramatists' and composers' rights, 162--American provisions, 162--Rights assured, 163--Dramatic rights, 163--Musical rights, 164--Excepted performance, 164--Performance "for profit," 165--Works not reproduced, 166--Copyright notice, 166--Dramatico-musical works protected from mechanical reproduction, 166--Dramatic and musical works excepted from manufacturing provisions, 167--British colonial practice, 168--Entry under proper class, 168--Application and certificates, 168--Right of dramatization, 169--Dramatization term, 169--Musical arrangements, 169--Transposition, 170--Works in the public domain, 170--Dramatization right protected, 170--English law and practice, 171--Infringement cases, 172--Substantial quotations, 173--Specific scenes or situations, 174--What is a dramatic composition, 174--Judge Blatchford's opinion, 175--Judicial definitions, 175--Moving pictures, 176--Literary merit not requisite, 177--What is a dramatico-musical composition, 177--Protection of playright, 178--Protection of unpublished work, 179--Indeterminate protection, 180--Printing and performance, 180--Specific English provisions, 182--Publication prior to performance, 183--British international protection, 184--What is public performance, 185--Manuscript rights, 186--Unpublished orchestral score, 187--Dramatic work by employee, 188--Copyright term, 188--Registration, 189--Assignment, 189--Parody, 190--Infringement by single situation, 191--Protection of title, 191--Names of characters, 192--Persons liable for infringement, 193--Protection against "fly by night" companies, 194--State legislation, 194--Remedies under present law, 195--Musical protection in England, 195--Acts of 1902-1906, 196--Playright in other countries, 197--International provisions, 197--Foreign protection of arrangements, 197--International definitions, 198--National formalities, 199--Specific reservations and conditions, 200--Pan American Union, 201. XII. MECHANICAL MUSIC PROVISIONS 202-221 "Canned music" contest, 202--Mechanical music provisos, 202--Compulsory license, 203--Damages, 203--Public performance, 204--The compromise result, 204--Judicial construction, 205--Punishment of infringement, 206--Notice of intention to use, 206--Constitutional question, 207--English law, 208--Berne situation, 1886, 209--Paris, 1896, 209--Berlin provision, 1908, 209--German precedents, 210--Law of 1910, 211--Germany and the United States, 212--French precedents, 212--Belgian precedents, 213--Italian precedents, 213--Other countries, 214--Argument for inclusion, 214--Inscribed writings, 215--Direct sound-writings, 216--Music transmissal, 216--Music notation, 217--The law prior to 1909, 218--Manuscript and copies, 218--Protection of the inventor, 219--The counter argument, 220--Complete protection, 221. XIII. ARTISTIC COPYRIGHT 222-250 Threefold value in art works, 222--American provisions, 223--Copyright Office classification definitions, 223--The question of exhibition, 224--Protection of unpublished work, 225--Copyright notice, 225--Deposit, 226--Summary of requirements, 227--Material and immaterial properties distinct, 228--Manufacturing clause, 228--German post cards, 229--Artistic merit, unimportant, 229--Application forms, 229--Certificates, 230--Term in unpublished work, 230--Date not required, 230--Re-copyright objectionable, 231--Exhibition right transfer, 231--Early English decision, 232--The Werckmeister leading case, 233--Unrestricted exhibition hazardous, 234--Reservation on sale, 234--Publication construed, 234--Danger of forfeiture, 235--Limited use and license, 236--Character, not method of use, 237--Illustration, 237--Description of artistic work, 238--Portraits, 238--Right of employer, 239--Photographs, 240--_Tableaux vivants_ and moving pictures, 241--Architectural works, 242--Copy of a copy, 243--Alterations, 243, 244--Remedies, 245--Artistic copyright term, 245--British practice, 246--Sculpture provisions, 247--Engraving provisions, 247--New British code, 247--Foreign countries, 248--Berne convention, 1886, 248--Paris declaration, 1896, 249--Berlin convention, 1908, 250--Exhibition not publication, 250--Pan American Union, 250. PART IV COPYRIGHT PROTECTION AND PROCEDURE XIV. INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" AND "UNFAIR COMPETITION" 251-264 Piracy, 251--Test of piracy, 251--Infringement in specific meaning, 252--Questions of fact and intent, 253--"Fair use," 253--Principle of infringement, 254--Infringement by indirect copying, 254--Exceptions from infringement, 255--Infringement by abridgment and compilation, 255--Abridged compilations, 256--Separation of infringing parts, 256--Law digests, 257--Proof from common errors, 257--Infringement in part, 258--No infringement of piracies or frauds, 258--Quotation, 259--Private use, 259--"Unfair competition," 260--Deceptive intent, 260--"Chatterbox" cases, 261--Encyclopædia Britannica cases, 261--Webster Dictionary cases, 261--"Old Sleuth" cases, 262--Other title decisions, 262--Rebound copies, 263--Kipling case, 263--Burlesqued title, 264--Drummond case, 264--New British code, 264. XV. REMEDIES AND PROCEDURE 265-277 Protection and procedure, 265--Injunction, 265--Damages, 265--One suit sufficing, 266--Deposit of infringing articles, 266--Remedies specified, 267--Impounding, 268--Supreme court rules, 268--Court jurisdiction, 268--Limitation, 269--Text of procedure provisions, 270--Proceedings united in one action, 270--Jurisdiction, 270--Injunction provisions, 270--Appeal, 271--No criminal proceedings, after three years, 271--Strict compliance requisite, 271--Damage not penalty, 272--Other procedure decisions, 273--Preventive action, 274--Party in suit, 274--Willful case, 275--Penal provisions, 275--False notice of copyright, 276--Allowance of costs, 276--New British code, 277. XVI. IMPORTATION OF COPYRIGHTED WORKS 278-296 Copyright and importation, 278--Fundamental right of exclusion, 278--General prohibitions, 279--Exceptions permitted, 279--Text provisions, 280--Prohibition of piratical copies, 280--Permitted importations, 280--Library importations, 281--Seizure, 282--Return of importations, 282--Rules against unlawful importation, 282--Supersedure of previous provisions, 283--Manufacturing clause affects earlier copyrights, 283--Importation of foreign texts, 284--Printing within country, 285--Innocent importation, 286--Books not claiming copyright, 286--Periodicals, 286--Composite books, 286--Rebinding abroad, 287--Importation of non-copyright translation, 288--Books dutiable, 288--Books on free list, 289--Library free importation, 290--Copyrights and the free list, 291--The duty on books, 291--British prohibition of importation, 292--Foreign reprints, 293--Divided market, 293--New British code, 293--Canadian practice, 294--Australian provision, 295--Foreign practice, 295--International practice, 296. XVII. COPYRIGHT OFFICE: METHODS AND PRACTICE 297-310 History of Copyright Office, 297--Routine of registration, 297--Treatment of deposits, 298--Destruction of useless material, 299--Register of Copyrights, 299--Catalogues and indexes, 300--Entry cards, 301--Text provisions, 302--Copyright records, 302--Register and assistant register, 302--Deposit and report of fees, 302--Bond, 303--Annual report, 303--Seal, 303--Rules, 303--Record books, 303--Certificate, 303--Receipt for deposits, 304--Catalogue and index provision, 304--Distribution and subscriptions, 305--Records open to inspection, 305--Preservation of deposits, 305--Disposal of deposits, 306--Fees, 307--Only one registration required, 307--Present organization, 308--Efficiency of methods, 308--Registration, 1909-1910, 309--Certificates for court use, 309--Searches, 309--Patent Office registry for labels, 309--Foreign practice, 310. PART V INTERNATIONAL AND FOREIGN COPYRIGHT XVIII. INTERNATIONAL COPYRIGHT CONVENTIONS AND ARRANGEMENTS 311-340 International protection of property, 311--Early copyright protection, 311--English protection, 311--Effect of Berne convention, 313--International literary congresses, 314--Fundamental proposition, 314--Preliminary official conference, 1883, 314--Propositions of 1883, 315--First official conference, 1884, 316--Second official conference, 1885, 317--Third official conference, 1886, 318--Berne convention, 1886, 318--Authors and terms, 318--"Literary and artistic works" defined, 318--Performing rights, 319--Other provisions, 319--Final protocol, 320--Ratification in 1887, 320--Paris conference, 1896, 321--Paris Additional Act, 321--Paris Interpretative Declaration, 322--Ratification in 1897, 322--Berlin conference, 1908, 323--United States' position, 324--Welcome of non-unionist countries, 325--Death of Sir Henry Bergne, 325--Berlin convention, 1908, 326--"Literary and artistic works" defined, 326--Authors' rights, 326--"Country of origin," 327--Broadened international protection, 327--Term, 328--Performing rights, 328--Other provisions, 329--National powers reserved, 329--Organization provisions, 329--Ratification in 1910, 330--Official organ, 330--Montevideo congress, 1889, 331--Pan American conferences, 331--Mexico City conference, 1902, 332--Mexico convention, 1902, 332--Indispensable condition, 333--Special provisions, 333--Ratification, 334--Rio de Janeiro conference, 1906, 334--Rio provisions, 335--Ratification, 336--Buenos Aires conference and convention, 1910, 336--Attorney General's opinion on ratification, 337--Relation with importation provisions, 338--United States international relations, 339--"Proclaimed" countries, 339--Mechanical music reciprocity, 340. XIX. THE INTERNATIONAL COPYRIGHT MOVEMENT IN AMERICA 341-372 Initial endeavor in America, 1837, 341--The British address, 341--Henry Clay report, 1837, 344--Prophecy of world union, 344--Clay bills, 1837-42, 346--Palmerston invitation, 1838, 346--Efforts, 1840-48, 346--Everett treaty, 1853, 347--Morris bills, 1858-60, 348--International Copyright Association, 1868, 348--Baldwin bill and report, 1868, 348--Clarendon treaty, 1870, 349--Cox bill and resolution, 1871, 349--The Appleton proposal, 1872, 350--Philadelphia protest, 1872, 351--The Bristed proposal, 1872, 351--Kelley resolution, 1872, 352--Congressional hearings, 352--Beck-Sherman bill, 1872, 352--Morrill report, 1873, 353--Banning Bill, 1874, 353--The Harper proposal and draft, 1878, 353--Granville negotiations, 1880, 355--Robinson and Collins bills, 1882-83, 356--American Copyright League, 356--Dorsheimer bill, 1884, 356--American publishers' sentiment, 357--Hawley bill, 1885, 358--Chace bill, 1886, 358--Congressional hearings, 1886, 359--Mr. Lowell's epigram, 359--President Cleveland's second message, 1886, 360--Campaign of 1887, 360--Senate passage of Chace bill, 1888, 361,--Bryce bill, 1888, 361--President Harrison's message, 1889, 361--Simonds bill and report, 1890, 362--Senate debate, 1891, 363--Act of March 4, 1891, 363--Review of the publishing situation, 364--Lack of unified policy, 365--Compromise of 1891, 365--Need of general revision, 366--_Ad interim_ copyright act, 1905, 366--Copyright conferences, 1905-06, 367--President Roosevelt's message, 1905, 368--Congressional hearings, 1906-08, 369--Kittredge-Currier reports, 1907, 369--Smoot-Currier Kittredge-Barchfeld bills, 1907-08, 370--Washburn, Sulzer, McCall, Currier bills, 1908, 370--Fourth Congressional hearing, 1909, 371--Act of March 4, 1909, 371--Hopes of future progress, 372. XX. COPYRIGHT THROUGHOUT THE BRITISH EMPIRE 373-397 English and American systems, 373--First publication and residence, 373--Variations in copyright terms, 374--New British code, 374--Scope and extent, 375--Publication, 376--Definition of copyright, 376--Infringement, 376--Term, 377--Ownership, 377--Deposit copies, 378--Importation, 378--Remedies, 378--General relations, 379--Acts repealed, 379--Changes from original bill, 379--Isle of Man, 380--Channel Islands, 381--International relations, 381--Colonial relations, 381--Local legislation, 382--Canadian copyright history, 383--Dominion of Canada: early acts, 383--Acts of 1875, 384--License acts disallowed, 385--Fisher Act, 1900, 385--Minor acts, 386--Short form of notice, 386--Proposed Canadian copyright code, 1911, 386--Imperial and Canadian copyright, 388--Requisites for domestic copyright, 388--Imperial and local protection, 388--Additional local protection, 389--Application for copyright, 389--Newfoundland, 390--British West Indies, etc., 391--Australian code of 1905, 391--General provisions, 392--Dramatic and musical works, 393--Performing right, 393--Registration and license, 394--New Zealand, 394--Australasia otherwise, 395--British India, 395--South Africa, 396--West coast colonies, 397--Mediterranean islands, 397. XXI. COPYRIGHT IN OTHER COUNTRIES 398-429 France, 398--Belgium, 400--Luxemburg, 400--Holland, 401--Germany, 402--Austria-Hungary, 405--Switzerland, 406--Scandinavian countries, 407--Russia, 409--Finland, 409--Spain, 410--Portugal, 411--Italy, 412--San Marino, 413--Monaco, 413--Greece, 414--Montenegro, 414--Balkan states, 414--Turkey, 415--Japan, 415--Korea, 416--China, 417--Siam, 417--Asia otherwise, 418--Tunis, etc., 418--Egypt, 418--Liberia, 419--Africa otherwise, 419--Latin America, 419--Mexico, 420--Central American states, 421--Interstate and international relations, 422--Panama, 423--Cuba, 423--Haiti, 424--Dominican Republic, 424--West Indian colonies, 425--Brazil, 425--Argentina, 425--Paraguay and Uruguay, 426--Chile, 427--Peru, 427--Bolivia, 427--Ecuador, 428--Colombia, 429--Venezuela, 429. PART VI BUSINESS RELATIONS AND LITERATURE XXII. BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER 430-452 Copyrights in business relations, 430--German publishing law of 1901, 430--The publisher as merchant, 434--"Outright" transfer, 434--"Joint adventure," 435--Risk and profit, 435--Long price and "net" price, 436--Equities, 436--The literary agent, 436--Usual American contract, 437--Publishers' obligations, 437--Reversion of contract, 438--Scope of contract, 438--Other works of author, 439--Standard contract, 439--Serial rights, 439--Republication of periodical articles, 440--Foreign markets, 440--Contract to do work, 440--Contract not to write, 441--Implied obligations, 442--Contract personal and mutual, 442--Author's transfer to other publishers, 445--Proprietary name, 445--Copies remaining unsold, 446--Renewal term, 447--License not assignment, 447--Author's and publisher's profits, 447--The publisher's share, 448--"Author's editions," 449--Printer's lien, 449--Compulsory license system, 449--License payments, 450--Saving through single publisher, 451--Copyrights in bankruptcy, 451--Copyrights in taxation, 452. XXIII. THE LITERATURE OF COPYRIGHT 453-462 Bibliographical materials, 453--Early history, 453--Early American contributions, 454--Later American pamphleteers, 454--American treatises, 455--Copyright Office publications, 455--Labor report, 456--English contributions about 1840, 456--Later English contributions, 457--English legal treatises, 457--Birrell's lectures, 458--MacGillivray's works, 458--English special treatises, 459--Parliamentary and Commission reports, 459--Cyclopædias and digests, 460--French works, 460--German works, 460--Italian works, 461--Spanish compendium, 461--International compilations, 462. APPENDIX I. UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS 465-516 1. United States Copyright Code of 1909, 465. 2. President's Proclamations, 489. 3. United States Supreme Court Rules, 491. 4. United States Copyright Office Regulations, 495. Application for copyright, with affidavit form, 511. 5. U. S. Treasury and Post Office Regulations, 513. II. BRITISH EMPIRE: COPYRIGHT PROVISIONS 517-602 6. British Copyright Act, 1911, 517. 6_a_. Fine Arts Copyright Act, 1862, 548. 6_b_. Musical (Summary Proceedings) Copyright Act, 1902, 550. 6_c_. Musical Copyright Act, 1906, 552. 7. Canadian Copyright Measure, 1911, 555. 8. Australian Copyright Act, 1905, 580. III. INTERNATIONAL COPYRIGHT UNION: CONVENTIONS 603-632 9. Berne-Paris Conventions, 1886, 1896, 603. 10. Berlin Convention, 1908, 603. IV. PAN AMERICAN UNION: CONVENTIONS 633-652 11. Montevideo Convention, 1889, 633. 12. Mexico City Convention, 1902, 637. 13. Rio de Janeiro Convention, 1906, 642. 14. Buenos Aires Convention, 1910, 649. CHRONOLOGICAL TABLE OF LAWS AND CASES, ENGLISH AND AMERICAN 653-675 INDEX 677-709 CONSPECTUS OF COPYRIGHT BY COUNTRIES _precedes_ CONTENTS COPYRIGHT ITS HISTORY AND ITS LAW I THE NATURE AND ORIGIN OF COPYRIGHT {Sidenote: Copyright, meaning} Copyright (from the Latin _copia_, plenty) means, in general, the right to copy, to make plenty. In its specific application it means the right to multiply copies of those products of the human brain known as literature and art. There is another legal sense of the word "copyright" much emphasized by several English justices. Through the low Latin use of the word _copia_, our word "copy" has a secondary and reversed meaning, as the pattern to be copied or made plenty, in which sense the schoolboy copies from the "copy" set in his copy-book, and the modern printer calls for the author's "copy." {Sidenote: Its two senses} Copyright, accordingly, may also mean the right in copy made (whether the original work or a duplication of it), as well as the right to make copies, which by no means goes with the work or any duplicate of it. Said Lord St. Leonards in the case of Jefferys v. Boosey in 1854: "When we are talking of the right of an author we must distinguish between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other person. Nothing can be more distinct than these two things. The common law does give a man who has composed a work a right to that composition, just as he has a right to any other part of his personal property; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of forever copying his own composition after he has published it to the world, is a totally different thing." Baron Parke, in the same case, pointed out expressly these two different legal senses of the word copyright, the right _in_ copy, a right of possession, always fully protected by the common law, and the right _to_ copy, a right of multiplication, which alone has been the subject of special statutory protection. {Sidenote: Blackstone} Blackstone in his Commentaries of 1767, in which the word copyright seems to have been first used, lays down the fundamental principles of copyright as follows: "When a man, by the exertion of his rational powers, has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition; and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may, perhaps, be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway." {Sidenote: Property by creation} There is nothing which may more rightfully be called property than the creation of the individual brain. For property (from the Latin _proprius_, own) means a man's very _own_, and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manifestation. The best proof of _own_-ership is that if this individual man or woman had not thought this individual thought, realized in writing or in music or in marble, it would not exist. Or if the individual thinking it had put it aside without such record, it would not, in any practical sense, exist. We cannot know what "might have beens" of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity thus to materialize their thoughts. {Sidenote: Are thoughts created?} It is sometimes said, as a bar to this idea of property, that no thought is new--that every thinker is dependent upon the gifts of nature and the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him,--a view of which Henry C. Carey has been the chief exponent in this country. But there is no real analogy--aside from the question whether the denial of individual property in land would not be setting back the hands of progress. If Farmer Jones does not raise potatoes from a piece of land, Farmer Smith can; but Shakespeare cannot write "Paradise lost" nor Milton "Much ado," though before both Dante dreamed and Boccaccio told his tales. It was because of Milton and Shakespeare writing, not because of Dante and Boccaccio who had written, that these immortal works are treasures of the English tongue. It was the very self of each, _in propria persona_, that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Property in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream. {Sidenote: Property in unpublished works} Property right in unpublished works has never been effectively questioned--a fact which in itself confirms the view that intellectual property is a natural inherent right. The author has "supreme control" over an unpublished work, and his manuscript cannot be utilized by creditors as assets without his consent. "If he lends a copy to another," says Baron Parke, "his right is not gone; if he sends it to another under an implied undertaking that he is not to part with it or publish it, he has a right to enforce that undertaking." The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer's consent. The theory that by permitting copies to be made, an author dedicates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the fact that in so doing the author only conveys to each holder of his book the right to individual use, and not the right to multiply copies, as though the landowner should not give but sell permission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege. {Sidenote: The question of publication} It is at the moment of publication that the undisputed possessory right passes over into the much disputed right to multiply copies, and that the vexed question of the true theory of copyright property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the right to use. An author cannot use--that is, get beneficial results from--his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain "an implied undertaking" that the buyer has liberty to use his copy, but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one's property by others without the owner's consent. The right of exclusion seems to be indeed a part of ownership. In the case of land the owner is entitled to prevent trespass, to the extent of a shot-gun, and in the same way the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one's own property of any kind. The owner of a literary property has, however, no physical means of defence or redress; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and publication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner. {Sidenote: Inherent right} The inherent right of authors is a right at what is called common law--that is, natural or customary law. The common law, says Kent, "includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature." "The common law or _lex non scripta_," says Blackstone, "depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary." So far as concerns the undisputed rights before publication, the copyright laws are auxiliary merely to common law. Rights exist before remedies; remedies are merely invented to enforce rights. "The seeking for the law of the right of property in the law of procedure relating to the remedies," says Copinger in his standard English work on "The law of copyright," "is a mistake similar to supposing that the mark on the ear of an animal is the cause, instead of the consequence, of property therein." {Sidenote: Statutory penalties} After the invention of printing it became evident that new methods of procedure must be devised to enforce common law rights. Copyright became, therefore, the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished. {Sidenote: Statute of Anne} {Sidenote: Supersedure of common law right} These laws, covering naturally only the country of the author, and specifying a time during which the penalties could be enforced, and providing means of registration by which authors could register their property rights, as the title to a house is registered when it is sold, had an unexpected result. The statute of Anne, which is the foundation of present English copyright law, intended to protect authors' rights by providing penalties against their violation, had the effect of limiting those rights. It was doubtless the intention of those who framed the statute of Anne to establish, for the benefit of authors, specific means of redress. Overlooking apparently the fact that law and equity, as their principles were then established, enabled authors to use the same means of redress, so far as they held good, which persons suffering wrongs as to other property had, the law was so drawn that in 1774 the English House of Lords (against, however, the weight of one half of English judicial opinion) decided that, instead of giving additional sanction to a formerly existing right, the statute of Anne had substituted a new and lesser right to the exclusion of what the majority of English judges held to have been an old and greater right. Literary and like property to this extent lost the character of copy-_right_, and became the subject of copy-_privilege_, depending on legal enactment for the security of the private owner. American courts, wont to follow English precedent, have rather taken for granted this view of the law of literary property, and our Constitution, in authorizing Congress to secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries," was evidently drawn from the same point of view, though it does not in itself deny or withdraw the natural rights of the author at common law. II THE EARLY HISTORY OF COPYRIGHT {Sidenote: In classic times} Our traditions of the blind Homer, singing his Iliad in the multitudinous places of his protean nativity, do not vouchsafe us any information as to the _status_ of authors in his day. There seems indeed to be no indication of author's rights or literary property in Greek or earlier literatures. But there is mention in Roman literature of the sale of playright by the dramatic authors, as Terence; and Rome had booksellers who sold copies of poems written out by slaves, and who seem to have been protected by some kind of "courtesy of the trade," since Martial names certain booksellers who had specific poems of his for sale. Horace complains that the Sosius brothers, his publishers, got gold while he got only fame--but this may have been a classic "author's grumble." Cicero in his letters indicates that there was some notion of literary property, and it is probable that some kind of payment was made to authors. {Sidenote: Roman law} The Roman jurist Gaius, probably of the second century, held that where an artist had painted upon a _tabula_, his was the superior right. And this opinion was adopted by Tribonian, chief editor of the code of Justinian, in the sixth century, and was applied in a modern question in respect to John Leech's drawings upon wood. {Sidenote: Monastic copyists} {Sidenote: St. Columba and Finnian} In the early Christian centuries, the monasteries became the seats of learning, and the _scriptorium_ or writing room, in connection with the _librarium_ or _armarium_,--the armory in which the weapons of the faith were kept,--was the work-shop of the monkish copyists, sometimes working as a publishing staff under the direction of the _librarius_ or _armarius_ as chief scribe. The first record of a copyright case is that of Finnian _v_. Columba in 567, chronicled by Adamnan fifty years later and cited by Montalembert in "The monks of the West." St. Columba, in his pre-saintly days, surreptitiously made a copy of a psalter in possession of his teacher Finnian, and the copy was reclaimed, so the tradition relates, under the decision of King Dermott, in the Halls of Tara: "To every cow her calf." The authenticity of the tradition is questioned by other writers, but the phrase gives the pith of the common law doctrine of literary property and indicates that in those early centuries there was a sense of copyright. Monks from other monasteries came to a noted _scriptorium_ where a specially authentic or valuable manuscript could be copied, and the privilege of copying sometimes became the basis of an exchange of copies or of a commercial charge. Finally different texts of the same work were compared to obtain a certain or standard text, and the multiplication of such copies became the basis of a publishing and bookselling trade, in secular as well as sacerdotal hands, the development of which is traced in detail by George Haven Putnam in "Books and their makers in the Middle Ages." {Sidenote: University protection} This development is illustrated in the statutes of 1223 of the University of Paris, providing that the "booksellers of the University" should produce duplicate copies of the texts authorized for the use of the University, and there is indication that payment was made by the University to scholars for the annotation and proof-reading of such texts. In fact, there existed in France in those days a kind of guild of _libraires jurés_ or legalized booksellers, under regulation of the University, as a body of publishers and writers having jurisdiction over the copying and censorship of manuscripts. "Letters of patent" of Charles V, 1368, specified fourteen _libraires_ and eleven _écrivains_ as registered in Paris, and four chief _libraires_ had jurisdiction over the calling of the _librarius_ and the _stationarius_. The certificate of the correctness of a copy, and perhaps of the right to copy or sell it, may be considered the primitive form of copyright certificate. {Sidenote: Invention of printing} The invention of printing, prior to 1450, made protection of literary property a question of rapidly increasing importance. The new art raised, of course, many new questions wherever the guardians of the law were set to their chronic task of applying old ideas of right to new conditions. The earliest copyright certificate, if it may be so called, in a printed book was that in the reissue of the tractate of Peter Nigrus printed in 1475, at Esslingen, in which the Bishop of Ratisbon certified the correctness of the copy and his approval. At first "privileges" were granted chiefly to printers, for the reproduction of classic or patristic works, but possibly in some cases as the representatives of living writers; and there are early instances of direct grants to authors, the earliest known being in 1486 in Venice to Sabellico. {Sidenote: In Germany} In Germany, the cradle of the art of printing, whence come the earliest _incunabula_ or cradle-books, printing privileges were developed some decades later than in Italy. Koberger, the early Nuremberg printer, whose imprint dates back to 1473, relied rather on the "courtesy of the trade," and indeed made an agreement in 1495 with Kessler of Basel to respect each other's rights. Yet a suit brought in 1480 by Schöffer, who with Fust had established the first publishing and bookselling business, brought in connection with Fust's heirs against Inkus of Frankfort for the infringement of property rights in certain books, and the issue of a preliminary injunction by a court at Basel, indicated some definite legal _status_. The first recorded privilege in Germany was issued by the imperial Aulic Council in 1501, to the Rhenish Celtic Sodalitas for the printing of dramas of the nun-poet, Hroswitha, who had been dead for 600 years, as prepared by Celtes of Nuremberg. The imperial privilege covered only the imperial domain, and Celtes in the same year obtained a similar privilege from the magistracy of Frankfort, then the seat of the book-fair, organized there about 1500, afterwards superseded by that at Leipzig. Later, imperial privileges were issued by the Imperial Chancellor in the name of the Emperor, as one in 1510 to the printer Johann Schott of the "_Lectura aurea_." In 1512 Maximilian I granted to the historiographer Johann Stab in Lintz a privilege covering "all works" which he "might cause to be printed," under which he issued licenses on particular books for ten years or less. This grant, however, some authorities consider not a privilege or copyright, but an authorization to license, possibly similar to that which had been granted in 1455 by Frederick III and confirmed later by Maximilian I to Dr. Jacob Össler at Strasburg, perhaps the earliest centre of printing and bookselling, as imperial supervisor of literature and superintendent of printing. In 1512 also, copies or imitations or engravings by Albert Dürer, with forged signature, were ordered confiscated by the magistrates of Nuremberg, though perhaps on grounds of fraud rather than of copyright. But in 1528 Dürer's widow obtained from the Nuremberg authorities exclusive privilege for his works, and in that year the magistrates went so far in protecting Dürer's "Proportion" as to restrain another work of the same title and subject, presumably though mistakenly inferred to be an adaptation or imitation, until after the completion and sale of the original work. In 1532 reëngravings of some of Dürer's works were restrained, and when a Latin edition of his "Perspective," printed in Paris, found its way to Nuremberg, the magistrates called the booksellers together, warned them against keeping or selling the unauthorized edition, and sent letters to the magistracy of Strasburg, Frankfort, Leipzig and Antwerp, requesting similar action. Luther in his reforming zeal was the first protestant against authors' wrongs, and in a letter of 1528 complained that "there are many now busying themselves with the spoiling of books through misprinting them," and pleaded for legislation to protect literary producers. In 1531 the city council of Basel enjoined all booksellers from reprinting the books of each other for three years from publication under penalty of one hundred gulden, which illustrates the nature of local legislation, privileging printers as well as other guilds within a city. The protection was usually for short terms and sometimes covered the subject as well as the book, as indicated in the Dürer case. The coördinate jurisdiction of imperial and local authority continued into the seventeenth century, and besides a special protection of official publications, including church texts and school books, there developed a differentiation between privileged books and protected authors. The imperial city of Frankfort in 1660 passed an ordinance for the protection of "_bücher_" and "_autores_" and an imperial patent of 1685 made the curious distinction between "privileged" and "unprivileged" works, which Pütter, reputed the German apostle of the modern theory of property in literary productions, writing in 1764, explains as meaning respectively "non-individual" and "individual" (_eigenthümlich_) works, the former those issued under printers' privileges, the latter the works of contemporary authors, copyrightable in our modern sense. At the close of the seventeenth century, the book-fair at Leipzig began to assume dominating importance, and the privileges from the Commission of the Elector of Saxony became more authoritative, perhaps, than the imperial privileges issued from Frankfort. {Sidenote: In Italy: Venice} Venice, among whose chief glories were to be the master printers Aldus, was the first and foremost of the Italian states to encourage the new art. The first privilege granted by her Senate, in 1469, indeed ante-dated the first in Germany by thirty-two years, the first in France by thirty-four years, and the first in England by forty-nine years. This was to John of Speyer, a German printer, for a monopoly for printing in Venice for five years, with prohibition of importation of works printed elsewhere, which he did not live to enjoy. The first known author's copyright was granted September 1, 1486, to Antonio Sabellico, historian to the Republic, of the sole right to publish or authorize the publication of his "Decade of Venetian affairs," not limited in time, with a penalty of five hundred ducats for infringement. In 1491 the Senate gave to the publicist Peter of Ravenna and the publisher of his choice the sole right, without mention of term, to print and sell his "Phoenix," usually cited as the first instance of copyright. In 1493 one Barbaro was granted a privilege for ten years in the work of his deceased brother, and in the same year an editor's copyright was granted to Joannes Nigro for his edition of "Haliabas," his application being accompanied by a certificate from learned doctors of Padua of its value for the community, and a publisher's copyright to Benaliis on Giustiniani's "Origin of the city of Venice," both apparently without term. In 1494 a privilege to Codeca contained the condition of fair price, and another privilege required publication within a year or at the rate of a folio a day. In 1496 Aldus himself was given the privilege for twenty years of printing any Greek texts, and in 1501, another for ten years of printing in cursive or italic characters, an invention of his own modeled on the handwriting of Boccaccio, a _quasi_ patent right; and rights for other languages were granted to other printers. From 1505 renewals were granted for good cause, as in 1508 to Crasso for his edition of the works of Polifilo, because the wars had prevented due return. The privilege dated sometimes from application, sometimes from publication, and varied in term from one year up, averaging perhaps ten years at the beginning and twenty years toward the close of the sixteenth century. Many of the privileges were conditioned on printing within Venice. Copyright to authors became frequent, as in 1515 on his "Orlando" for his lifetime, to Ariosto, on whose poems an extra term for ten years was granted, in 1535, to his heirs. In 1521 Castellazzo obtained a copyright for his engravings illustrating the Pentateuch and for others which he had in plan; and many musical works were also copyrighted. It will be seen that before or early in the sixteenth century most of the copyright conditions of later legislation, even in the American code of 1909, had been prophesied in Venice. But the privileges had become so complicated and perplexing that in 1517 the Venetian Senate abolished all printing privileges previously granted and decreed that privileges should thereafter be granted only by two-thirds vote and for a new work (_opus novum_) "never published before," or works hitherto unprivileged. This attempt at reform proved inadequate and indefinite, and in 1533 the first real copyright code was decreed, under which printing was required within Venice, and publication within a year--later modified for larger works to a folio a day. No publisher could apply twice for the same copyright, and a maximum price was fixed from an advance copy by the Bureau of Arts and Industries. Under the restriction of competition, Venetian printers, once the best in the world, fell into "the ruinous and disgraceful practice," according to a decree of 1537, "for the sake of gain" of using "vile paper that would not hold the ink" or permit marginal notes; and the use of good paper that could be written upon without blotting was required, except for works priced under 10 soldi, on penalty of forfeiture of copyright and a fine of 100 ducats. Under the earlier privileges publishers had printed books without consent of the authors or against their will, but in 1545 it was decreed that no copyright should issue unless documentary evidence of the consent of the author or his representatives had been submitted to the Rifformatori, the commission from the University of Padua, appointed the year before as censors upon non-theological works, not covered by the ecclesiastical censors. A decree in 1548 established a guild of printers and publishers, antedating the charter granted by Queen Mary to the Stationers' Company in London, though later than the organization of the book-fair of Frankfort and of the _libraires jurés_ in France; and its regulations, aiding the censorship, incidentally defined literary property and protected copyrights. About 1566 there was a provision that works should be registered before publication without charge, and a complete registry of published works was kept in Venice. In 1569 as many as 117 copyright entries were made in Venice, and so few, after the plague years, as seven in 1599. Only two applications are recorded as refused by the Senate. The one recorded instance of punishment for piracy was that on the work of Pappa Alesio of Corfu, wherein the infringer was fined 200 ducats, besides ten ducats for each unauthorized copy printed, and was forbidden to print for ten years. About 1600 the exodus of printers from Venice was checked by legislation, and in 1603 an elaborate decree provided copyright for twenty years on books first published in Venice, for ten years on books first published in Italy but registered in Venice, or on books not printed in Venice within the previous twenty years, and for five years on books not printed within ten years previous, and also a fine of twenty-five ducats for the false use of "Venetia" in the imprint. Later, as is evidenced by complaints in 1671, deposit copies were required for the libraries of St. Mark and of Padua. By the close of the seventeenth century the provisions for copyright in Venice had become so complicated, according to Putnam, following Brown's historical study of "The Venetian printing press," as to require the following processes, most of them involving a fee: "_testamur_ from the ducal secretary; certificate from the Rifformatori of the University of Padua; _imprimatur_ from the Chiefs of the Ten; revision by the Superintendent of the Press; revision by the public proof-reader; collation of the original text with the text as printed, by the secretary to the Rifformatori; certificate from the librarian of St. Mark that a copy had been deposited in the library; examination by experts appointed by the Proveditori to establish the market price of the book." {Sidenote: Florence} Florence was second only to Venice in the production of books and the protection of authors, and the records of Florentine printing show that in the sixteenth century international privileges were sought and obtained. Thus the printer of a Florentine edition of the Pandects, in 1553, obtained privileges also in Spain, France and the two Sicilies, possibly through a Papal grant. {Sidenote: Control by the Church} By 1515, under Leo X, patron of art and letters, the Holy See had asserted its jurisdiction over copyrights and privileges, not only in its own territory, but throughout Italy and Germany, and elsewhere, under pain of spiritual punishments. Fra Felice of Prato, a converted Jew, had obtained from the Pope a privilege for certain Hebrew works valid throughout all Europe, the denial or infringement of which was punishable by excommunication; but he took the precaution to obtain a privilege also from the Venetian authorities. There is other evidence of a compromise policy involving approval from the Church before a secular privilege was granted, especially of theological works. Throughout Catholic countries the _index expurgatorius_ banned for the most part the printing of forbidden books; and this made Holland later the chief centre of printing, since the placing of a work in the _index_ invited prompt reprint by Dutch publishers. It was perhaps a survival of a requirement for deposit of such books that Holland so long remained the only nation in Europe conditioning copyright on deposit of a copy printed within the country. {Sidenote: In France} In France, after the invention of printing, the functions of the _libraires jurés_, under the authority given by the King through the University of Paris, naturally came to include books, and this relation was continued until the Revolution of 1789. Copyrights throughout this period seem to have been in perpetuity. At the beginning of the fifteenth century, in the times of Louis XII, "letters of the King" forbade booksellers, printers and other persons to "introduce foreign impressions" of the books to which such letters were appended. They were usually issued to printers. In 1537, under Francis I, a work had first to secure "the King's approval given through the royal librarian," a copy must be deposited in the library of the royal château of Blois, and the selling of foreign works was permitted only after approval as worthy of a place in the royal library,--but for these last the library was to pay the usual price. In 1556 a general ordinance of Henry II defined literary property, and publication of condemned books was declared treason. In 1566 the "Ordinance de Moulins" of Charles IX made further definition; and letters patent of Henry III, in 1576, referred back to these earlier ordinances. Infringement of such privileges was punished with especial severity in France, for, as quoted by Lowndes, such conduct was thought "worse than to enter a neighbor's house and steal his goods: for negligence might be imputed to him for permitting the thief to enter: but in the case of piracy of copyright, it was stealing a thing confided to the public honor." Louis XIV in 1682 visited it with corporal punishment, and for a second offence decreed in 1686 also that the offender should be forever disabled from exercising his trade of bookseller or printer. Copyrights continued in perpetuity until all royal privileges were abolished in 1789 by the National Assembly, after which in July, 1793, a general copyright law was passed, granting copyright to an author for his life and to his heirs for ten years thereafter. {Sidenote: In England} In England, a Royal Printer was appointed in 1504, and to his successor, Richard Pynson, in 1518, the first printing "privilege" was issued, in the form of a prohibition for two years of the printing by any other person of a certain speech to which this first English copyright notice was appended. Bishop Fell, in his memoirs on the state of printing in the University of Oxford, states that this University had been granted certain exclusive privileges of transcribing and multiplying books by means of writing; and Lowndes in his early "Historical sketch of the law of copyright," published in 1840 and 1842, cites many early privileges, most commonly for seven years, granted after the invention of printing. An early enactment of Richard III, in 1483, had encouraged the circulation of books by exempting from certain restraints on aliens "any artificer, or merchant stranger, of what nation or country he be, for bringing into this realm, or selling by retail or otherwise, any books written or printed, or for inhabiting within this said realm for the same intent, or any scrivener, alluminor, reader, or printer of such books." But fifty years later, under Henry VIII, this exemption was repealed by an act, "for printers and binders of books," which provided that no persons "resident or inhabitant within this realm shall buy to sell again, any printed books brought from any parts out of the King's obeysance, ready bound in boards, leather, or parchment," or buy "of any stranger born out of the King's obedience, other than of denizens, any manner of printed books brought from any parties beyond the sea, except only by engross, and not by retail"--the buyer to be punished by a fine, of which a moiety was to go to the informer. The act also contained provisions to "reform and redress," through the Chancery judges with "twelve honest and discreet persons," "too high and unreasonable prices." {Sidenote: Book restriction} The quaint preamble of this act of 1533 sets forth as its "whereas," in reference to the act of Richard III, that "there hath come to this realm sithen the making of the same, a marvelous number of printed books, and daily doth; and the cause of the making of the same provision seemeth to be, for that there were but few books, and few printers within this realm at that time, which could well exercise and occupy the said science and craft of printing; nevertheless, sithen the making of the said provision, many of this realm, being the King's natural subjects, have given them so diligently to learn and exercise the said craft of printing, that at this day there be within this realm a great number cunning and expert in the said science or craft of printing, as able to exercise the said craft in all points, as any stranger in any other realm or country; and furthermore, where there be a great number of the King's subjects within this realm, which live by the craft and mystery of binding of books, and that there be a great multitude well expert in the same, yet all this notwithstanding, there are divers persons that bring from beyond the sea great plenty of printed books, not only in the Latin tongue, but also in our maternal English tongue, some bound in boards, some in leather, and some in parchment, and them sell by retail, whereby many of the King's subjects, being binders of books, and having no other faculty wherewith to get their living, be destitute of work and like to be undone, except some reformation herein be had." This is interesting in connection with the American manufacturing clause. {Sidenote: Early English protection} Henry VIII granted many printing privileges, and in 1530 the first English copyright to an author was issued to John Palsgrave, who, having prepared a French grammar at his own expense, received a privilege for seven years. In 1533 appeared the first complaint of piracy, that of Wynken de Worde, who obtained the King's privilege for his second edition of Witinton's Grammar, because Peter Trevers had reprinted it from the edition of 1523. Up to the middle of the sixteenth century copyrights were in form printers' licenses, and even in the case cited Palsgrave seems to have been recognized rather because he published his own book than because he wrote it. {Sidenote: The Stationers' Company} The Stationers' Company, created by Henry VIII and chartered under Queen Mary in 1556, though the development of an earlier guild dating from 1403, was in part a device to prevent seditious printing, by prohibiting any printing in England except by those registered in its membership. In 1558, under a second charter, its by-laws provided that every one who printed a book should register it and pay a fee, and those who failed to do this, or who printed another member's book, were to be fined. In 1562 licenses were declared void "if any other has a right," and in 1573 sales of "copy" are entered. The practice had grown up of granting patents or monopolies to persons for a whole class of books; the Stationers' Company itself held that for almanacs up to a very late period, and the Crown has retained that on the Bible and the Book of Common Prayer to the present day. These monopolies were defied, and the Star Chamber decree of 1566, disabling offending printers from exercising their trade and prescribing imprisonment, did not avail. In 1640 the Star Chamber and all the regulations of the press were abolished by the Long Parliament, but the abuse of unlicensed printing led to a new licensing act in 1643, which prohibited printing or importing without consent of the _owner_, on pain of forfeiture of copies to the owner, and which renewed the order that all books should be entered in the register of the Stationers' Company. The early registers still exist in Stationers' Hall, near Paternoster Row, London, in quaint and almost undecipherable chirography, and some of them have been reissued in _facsimile_. It was against the licensing act of this date that Milton, in 1644, printed his "Areopagitica," but he particularly excepts from his criticism of the act the part providing for "the just retaining of each man his several copy, which God forbid should be gainsaid." {Sidenote: Statutory provisions} In 1649 Parliament provided a penalty of 6_s._ 8_d._ and forfeiture for the reprinting of registered books, and prohibited presses except at London, Finsbury, York, and the universities, and in 1662 it added the requirement of deposit of a copy at the King's library and at each of the universities. To prevent fraudulent changes in a book after licensing, it was further required that a copy be deposited with the licenser at the time of application--apparently the origin of our record-deposit. With the expiration of these acts in 1679, legislative penalties lapsed and piracy became common. Charles II in 1684 renewed the charter of the Stationers' Company, approved its register, and confirmed to proprietors of books "the sole right, power, and privilege and authority of printing, as has been usual heretofore." The licensing act of 1649-62 was revived in 1685, and renewed up to 1694, although the booksellers now petitioned against it, and eleven peers protested against subjecting learning to a mercenary and perhaps ignorant licenser, and destroying the property of authors in their copies. The law lapsed because of the indignation of the Commons against the arbitrary power of the license, but the result was the abolition of statutory penalties, which left the punishment of piracy a matter of damages at common law, requiring a separate action for each copy sold, usually against irresponsible people. Piracy again flourished. The right at common law seems, however, to have been unquestioned, and the Court of Common Pleas held that a plaintiff who had purchased from the executors of an author was owner of the property at common law. Owners of literary property petitioned Parliament, 1703 to 1709, for security and redress, declaring that the property of English authors had always been held as sacred among the traders, that conveyance gave just and legal title, that the property was the same with houses and other estates, and that existing "copies" had cost at least £50,000, and had been used in marriage settlements and were the subsistence of many widows and orphans. This led to the famous statute of Anne, introduced in 1709, and passed March, 1710, "for the encouragement of learning," said to have been drawn in its original form by Swift, which remains the practical foundation of copyright in England and America to-day. III THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND {Sidenote: The statute of Anne as foundation} The statute of Anne, the foundation of the present copyright system of England and America, which took effect April 10, 1710, gave the author of works then existing, or his assigns, the sole right of printing for twenty-one years from that date and no longer; of works not then printed, for fourteen years and no longer, except in case he were alive at the expiration of that term, when he could have the privilege prolonged for another fourteen years. Penalties were provided, which could not be exacted unless the books were registered with the Stationers' Company, and which must be sued for within three months after the offence. If too high prices were charged, the Queen's officers might order them lowered. A book could not be imported without written consent of the owner of the printing right. The number of deposit copies was increased to nine. The act was not to prejudice any previous rights of the universities and others. {Sidenote: Its relations to common law} {Sidenote: The crucial cases} This act did not touch the question of rights at common law, and soon after its statutory term of protection on previously printed books expired, in 1731, lawsuits began. The first was that of Eyre _v._ Walker, in which Sir Joseph Jekyll granted, in 1735, an injunction as to "The whole duty of man," which had been first published in 1657, or seventy-eight years before. In this and several other cases the Court of Chancery issued injunctions on the theory that the legal right was unquestioned. But in 1769 the famous case of Millar _v._ Taylor, as to the copyright of Thomson's "Seasons," brought directly before the Court of King's Bench the question whether rights at common law still existed, aside from the statute and its period of protection. In this case Lord Mansfield and two other judges held that an author had, at common law, a perpetual copyright, independent of statute, one dissenting justice holding that there was no such property at common law. The copyright was sold by Millar's executors to Becket, who prosecuted Donaldson for piracy and obtained from Lord Chancellor Bathurst a perpetual injunction. In 1774, in the famous case of Donaldson _v._ Becket, this decision was appealed from, and the issue was carried to the highest tribunal, the House of Lords. {Sidenote: The Judges' opinions} The House of Lords propounded five questions to the judges. These, with the replies,[1] were as follows: I. Whether, at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published and sold the same without his consent? Yes, 10 to 1 that he had the sole right, etc.,--and 8 to 3 that he might bring the action. II. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person afterward reprint and sell, for his own benefit, such book or literary composition against the will of the author? No, 7 to 4. III. If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author, by the said statute, precluded from every remedy, except on the foundation of the said statute and on the terms and conditions prescribed thereby? Yes, 6 to 5. IV. Whether the author of any literary composition and his assigns had the sole right of printing and publishing the same in perpetuity, by the common law? Yes, 7 to 4. V. Whether this right is any way impeached, restrained, or taken away by the statute of 8th Anne? Yes, 6 to 5. Footnote 1: The votes on these decisions are given differently in the several copyright authorities. These figures are corrected from 4 Burrow's Reports, 2408, the leading English parliamentary reports, and are probably right. {Sidenote: The Lords' decision} These opinions, that there was perpetual copyright at common law, which was not lost by publication, but that the statute of Anne took away that right and confined remedies to the statutory provisions, were directly contrary to the previous decrees of the courts, and on a motion seconded by the Lord Chancellor, the House of Lords, 22 to 11, reversed the decree in the case at issue. This construction by the Lords, in the case of Donaldson _v._ Becket, of the statute of Anne, has practically "laid down the law" for England and America ever since. {Sidenote: Protests} Two protests against this action deserve note. The first, that of the universities, was met by an act of 1775, which granted to the English and Scotch universities (to which Dublin was added in 1801), and to the colleges of Eton, Westminster and Winchester, perpetual copyright in works bequeathed to and printed by them. The other, that of the booksellers, presented to the Commons February 28, 1774, set forth that the petitioners had invested large sums in the belief of perpetuity of copyright, but a bill for their relief was rejected. {Sidenote: Supplementary legislation} In 1801 an act was passed authorizing suits for damages [at common law, as well as penalties under statute] during the period of protection of the statute, the need for such a law having been shown in the case of Beckford _v._ Hood in 1798, wherein the court had to "stretch a point" to protect the plaintiff's rights in an anonymous book, which he had not entered in the Stationers' register. {Sidenote: The Georgian period} Meantime, during the Georgian period, there had been much incidental copyright legislation. The provision in the statute of Anne for the limitation of prices was repealed by the act of 1739, which also continued the prohibition of the importation of foreign reprints, further continued in later acts or customs regulations from time to time, until these were disposed of by the statute law revision act of 1867. Copyright had been extended to engravings and prints by successive acts of 1734-5 (8 George II, c. 13), 1766-7 (7 George III, c. 38) and 1777 (17 George III, c. 57); to designs for linen and cotton printing by acts of 1787, 1789 and 1794; to sculpture by acts of 1798 and 1814 (54 George III, c. 56). A private copyright act of 1734 granted to Samuel Buckley, a citizen and stationer of London, sole liberty of printing an improved edition of the histories of Thuanus, and the engravings act of 1767 contained a similar special provision for the widow of Hogarth. In 1814 also, copyright in books was extended to twenty-eight years and the remainder of life, and the author was relieved from delivering the eleven library copies then required, except on demand. The university copyright act of 1775 (15 George III, c. 53), above-mentioned, and the other acts given with specific citation above, still constitute, in certain unrepealed provisions, a part of the English law, although others of their provisions and other laws were repealed by later copyright acts or by the statute law revision act of 1861 or that of 1867. {Sidenote: Legislation under William IV} In the reign of William IV the dramatic copyright act of 1833 (3 William IV, c. 15) became, and in part remains, the basis of copyright in drama. The lectures copyright act of 1835 (5 & 6 William IV, c. 65) for the first time covered that field. In 1836 the prints and engravings copyright (Ireland) act (6 & 7 William IV, c. 59) extended protection to those classes in that country, and another copyright act (6 & 7 William IV, c. 110) reduced the number of library copies required to five. These laws also remain in force, in unrepealed provisions, as a part of British copyright law. {Sidenote: The Victorian act of 1842} In 1841, under the leadership of Serjeant Talfourd, author of "Ion" and other dramatic works, a new copyright bill was presented to the House of Commons, in the preparation of which George Palmer Putnam, the American publisher, then resident in London, had been consulted. It provided for compulsory registration and extended the term to life and thirty years. The bill attracted little attention and met with no opposition until the second reading, when Lord Macaulay, a bachelor, interested in fame rather than profit to an author or his descendants, attacked the bill and "the great debate" ensued. Macaulay offered a bill limiting copyright to the life of the author, but finally assented to a compromise, by which the term was made forty-two years or the life of the author and seven years, whichever the longer. The resulting copyright act of 1842 (5 & 6 Victoria, c. 45) presented a new code of copyright, covering the ground of previous laws, but not in terms repealing them. As a result, provisions not specifically repealed or superseded remained in force, and the act of 1842, though serving since as the basic act, has had to be construed with the previous acts in view. The bill practically preserved, however, the restrictions of the statute of Anne. The term of forty-two years or life and seven years is applied to articles in periodicals, but the right in these reverts to the author after twenty-eight years. The Judicial Committee of the Privy Council may authorize the publication of a work which after the author's death the proprietor of the copyright refuses to republish. {Sidenote: Protection of designs} In the same year, 1842, there was passed also a copyright in designs act, covering designs for articles of manufacture, consolidating previous laws on this specific subject from 1787 to 1839 (two bills in this last year having extended protection to printing designs for woolen and other fabrics and to articles of manufacture generally), and providing for a registrar for such designs,--in which act the careless use of the word "ornamenting" seemed so to limit the scope that an amendatory act was passed in 1843. {Sidenote: Subsequent acts} An international copyright act, introduced in the first year of the Victorian reign, had been passed in 1838, to protect foreign books reprinted in England, but it proved inadequate and was repealed by the subsequent act of 1844 (7 & 8 Victoria, c. 12), providing more comprehensively for international copyright, on the basis of registration and deposit in London. The colonial copyright act of 1847 (10 & 11 Victoria, c. 95) authorized copyright legislation by any colony, subject to the approval of the Crown, and the suspension for such colony of the prohibition of foreign reprints, which act is therefore often cited as the foreign reprints act. An act of 1850 further covered designs and provided for their provisional registration, and one in 1851 protected exhibits at the international exhibition of that year in London. A third international copyright act was passed in 1852 (15 & 16 Victoria, c. 12) covering translations and including an authorization of a special treaty with France. The fine arts copyright act of 1862 (25 & 26 Victoria, c. 68) extended copyright to paintings, drawings, and photographs, hitherto unprotected, for life and seven years. A fourth international copyright act of 1875 (38 & 39 Victoria, c. 12) protected foreign dramatic works from imitation or adaptation on the English stage, which had been specifically permitted by the previous law, and in the same year "The Canada copyright act" (38 & 39 Victoria, c. 53) gave effect to a Canadian parliament act respecting copyright reprints. {Sidenote: The Royal Commission report of 1878} "The law of England, as to copyright," says the report of the Royal Copyright Commission, in a blue-book of 1878, "consists partly of the provisions of fourteen Acts of Parliament, which relate in whole or in part to different branches of the subject, and partly of common law principles, nowhere stated in any definite or authoritative way, but implied in a considerable number of reported cases scattered over the law reports." The digest, by Sir James Stephen, appended to this report, is presented by the Commission as "a correct statement of the law as it stands." This digest is one of the most valuable contributions to the literature of copyright, but the frequency with which such phrases occur as "it is probable, but not certain," "it is uncertain," "probably," "it seems," shows the state of the law, "wholly destitute of any sort of arrangement, incomplete, often obscure," as says the report itself. The digest is accompanied, in parallel columns, with alterations suggested by the Commission, and it is much to be regretted that their work failed to reach the expected result of an act of Parliament. The evidence taken by the Commission forms a second blue-book, also of great value. This report and digest covered legislation through 1875, inclusive of the Canada act. They seem also to have regarded, though the act is not specified in the schedule, the consolidated customs act of 1876 (39 & 40 Victoria, c. 36), which incidentally contained the provisions for the prohibition of the importation of copyright books. {Sidenote: Later legislation} Despite the recommendations of the Commission and several later endeavors to pass a comprehensive copyright act,--of which the most important was Lord Monkswell's bill introduced into Parliament on behalf of the British Society of Authors, November 16, 1890, and given in full with an analysis by Walter Besant in George Haven Putnam's "Question of copyright"--later legislation in England has been confined practically to two topics, international copyright and the vexed question of musical compositions. {Sidenote: International copyright} The international copyright act of 1886 (49 & 50 Victoria, c. 43), amending and extending, and in part repealing the earlier international copyright acts and provisions, was intended to enable Great Britain, through Orders in Council, to become a party to international agreements, particularly the Berne copyright convention of 1886, ratified in 1887; this was made effective with respect to the eight other countries which were parties to the original Berne convention by the Order in Council of November 28, 1887, taking effect December 6, 1887. The convention was to extend to the British possessions, though with exceptions in some respects. The revenue act of 1889 (52 & 53 Victoria, c. 42) extended the prohibition of importation to foreign works copyrighted under the act of 1886, "printed or reprinted in any country or state" other than that "in which they were first published," if registered as required by the customs authorities. {Sidenote: Musical copyright} The protection of musical compositions was in such confused and unsatisfactory condition that special legislation was necessary. The recent laws on this subject, described in detail in the chapter on dramatic and musical copyright, include the copyright (musical compositions) act of 1882 (45 & 46 Victoria, c. 40); the copyright (musical compositions) act of 1888 (51 & 52 Victoria, c. 17); the musical (summary proceedings) copyright act of 1902 (2 Edward VII, c. 15); and the musical copyright act of 1906 (6 Edward VII, c. 36),--following the report of the Musical Copyright Committee of 1904,--which successively met imperfections developed in applying the previous law. {Sidenote: Committee report of 1909} After the adoption of the revised international copyright convention signed at Berlin November 13, 1908, modifying the Berne-Paris conventions, a Committee on the law of copyright consisting of seventeen publicists, authors, artists, publishers and others was appointed by minute of March 9, 1909, by the President of the Board of Trade, to consider and report upon the modification of domestic legislation in conformity with the Berlin agreement of 1908. The Committee made a report in December, 1909, strongly advising that domestic legislation be brought into line with international practice and that the copyright term in Great Britain be for life and fifty years. With the report was printed a blue-book of minutes of evidence, containing valuable appendixes which included a _projêt de loi type_ (model bill) on copyright, drafted by the International Literary and Artistic Association, and an artistic copyright bill drafted by the Artistic Copyright Society. {Sidenote: Imperial copyright conference of 1909} In the early part of 1909 an Imperial copyright conference was also held in London, attended by Crown officials and representatives from all of the self-governing dominions, at which certain resolutions for copyright betterment were adopted. Its minutes and resolutions were also presented to Parliament. {Sidenote: The pending bill} As a result of the deliberations and reports of these two bodies, "a bill to amend and consolidate the law relating to copyright" (1 George V) was introduced into the House of Commons July 26, 1910, in the names of Mr. Buxton, Mr. Solicitor-General, Colonel Seely and Mr. Tennant, the adoption of which would provide a copyright code similar in extent to the American code of 1909, and applicable throughout the British dominions, with the proviso that the self-governing dominions may accept or modify the code or legislate separately, and providing also for international copyright. The bill adopted most of the features of the Berlin convention including the term of life and fifty years, covered literary, dramatic, musical and artistic works, including architectural works of art, and while distinguishing between first publication and performance, included under copyright acoustic or visual performance or exhibition and control for mechanical reproduction. The bill, somewhat modified, was reintroduced into the subsequent Parliament March 30, 1911, emerged from committee with important alterations July 13, 1911, and was passed with slight additional changes by the House of Commons August 17, and first read in the House of Lords August 18, 1911. On passage of the House of Lords, it becomes effective July 1, 1912, unless earlier date is provided by Order in Council. The bill repeals by specific schedule all existing laws except specified sections in the fine arts copyright act of 1862, the musical copyright acts of 1902 and 1906, and the copyright provisions in the customs consolidation act of 1876 and the revenue act of 1889. The provisions of the new measure are specifically treated and summarized comprehensively in later chapters and the full text is given in the appendix. {Sidenote: Design patents} The bill does not, however, repeal the previous law as to copyright in designs, which had continued to receive consideration during the Victorian reign in laws, later than those cited, of 1858-1861, and thus finally became merged in the protection of patents. Thus "designs capable of being registered under the patents and designs act, 1907," are specifically excepted under clause 22 of the proposed copyright code. {Sidenote: Common law rights} It seems possible that, under the precedent of the acts of 1775 and 1801, the common law rights practically taken away by the statute of Anne and specifically abrogated by the proposed bill, could have been restored by legislation. These restrictions have not only ruled the practice of England ever since, but they were embodied in the Constitution of the United States, and have influenced alike our legislators and our courts. IV THE HISTORY OF COPYRIGHT IN THE UNITED STATES {Sidenote: Constitutional provision} The Constitution of the United States authorized Congress "to promote the progress of science and useful arts by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Previous to its adoption, in 1787, the nation had no power to act, but on Madison's motion, Congress, in May, 1783, recommended the States to pass acts securing copyright for fourteen years. {Sidenote: Early state legislation} Connecticut in January, 1783, Massachusetts in March, 1783, and Maryland in April, 1783, had already provided for copyright, twenty-one years being the usual period. New Jersey on May 27, 1783, and New Hampshire and Rhode Island in December of the same year, followed Madison's suggestion. Pennsylvania and South Carolina in March, 1784, Virginia and North Carolina in 1785, Georgia and New York in 1786, also passed copyright acts, so that all the thirteen States except Vermont had separately provided for copyright,--thanks to the vigorous copyright crusade of Noah Webster, who traveled from capital to capital,--when the United States statute of 1790 made them unnecessary. {Sidenote: The act of 1790} This act followed the precedent of the English act of 1710, and gave to authors who were citizens or residents, their heirs and assigns, copyright in books, maps and charts for fourteen years, with renewal for fourteen years more, if the author were living at expiration of the first term. A printed title must be deposited before publication in the clerk's office of the local United States District Court; notice must be printed four times in a newspaper within two months after publication; a copy must be deposited with the United States Secretary of State within six months after publication; the penalties were forfeiture and a fine of fifty cents for each sheet found, half to go to the United States; a remedy was provided against unauthorized publication of manuscripts. {Sidenote: 1802-1867} {Sidenote: The revised act of 1870} {Sidenote: 1874-1882} This original and fundamental act was followed by others--in 1802, requiring copyright record to be printed on or next the title-page, and including designs, engravings and etchings; in 1819, giving United States Circuit Courts original jurisdiction in copyright cases; in 1831 (a consolidation of previous acts), including musical compositions, extending the term to twenty-eight years, with renewal for fourteen years to author, widow, or children, doing away with the newspaper notice except for renewals, and providing for the deposit of a copy with the district clerk (for transmission to the Secretary of State) within three months after publication; in 1834, requiring record of assignment in the court of original entry; in 1846 (the act establishing the Smithsonian Institution), requiring one copy to be delivered to that, and one to the Library of Congress; in 1855, a postal provision for free mailing of deposits; in 1856, securing to dramatists the right of performance; in 1859, repealing the provision of 1846 for the deposit of copies, and making the Interior Department instead of the State Department the copyright custodian; in 1861, providing for appeal in all copyright cases to the Supreme Court; in 1865, including photographs and negatives, and again requiring deposit with the Library of Congress, within one month from publication; in 1867, providing $25 penalty for failure to deposit. This makes twelve acts bearing on copyright up to 1870, when a general act took the place of all, including "paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts." This did away with the local District Court system of registry, and made the Librarian of Congress the copyright officer, with whom printed title must be filed before, and two copies deposited within ten days after, publication. In 1873-4 the copyright act was included in the Revised Statutes as sections 4948 to 4971 (also see secs. 629 and 699), and in 1874 an amendatory act made legal a short form of record, "Copyright, 18--, by A. B.," and relegated labels to the Patent Office. In 1879 the Post Office appropriation bill contained a proviso against the transmission of any publication which violates copyright; in 1882 an amendment dealt with the position of the copyright notice on moulded, decorative articles, etc. {Sidenote: International copyright legislation, 1891} In 1891 there was passed, after a long campaign, the so-called international copyright act, extending copyright to the citizens of other nations in case of reciprocal grants by such nations, and providing that the copyright on books and certain other articles should be conditioned on manufacture in the United States. In 1893 an amendatory act gave the same effect to copies deposited "on or before publication." In 1895 the public documents bill provided that no government publication should be copyrighted, and another bill imposed penalties in the case of infringement of photographs and of original works of art. In 1897 an act provided that unauthorized representation, wilful and for profit, of any dramatic or musical composition is a misdemeanor punishable by imprisonment; another act provided for the appointment of a Register of Copyrights under the direction and supervision of the Librarian of Congress; and a third act provided penalty for printing false claim of copyright and prohibited the importation of articles bearing a false claim of copyright. In 1904 provision was made for protection to exhibitors of foreign literary, artistic or musical works at the Louisiana Purchase Exposition. A bill of 1905 permitted _ad interim_ copyright for one year of books published abroad if registered here within thirty days publication and bearing notice of reservation. {Sidenote: Private copyright acts} A curious incident in American copyright legislation has been the passage of private copyright acts, nine in all, of which the earliest in 1828, as amended in 1830 and 1843, continued the copyright of John Rowlett "in a useful book, called Rowlett's Tables of discount and interest" from its original publication in 1802 till 1858,--curiously the present period of fifty-six years. In 1849 the copyright of Levi H. Corson in a perpetual calendar or almanac was renewed by special act. In 1854 an appropriation of $10,000 was made to Thomas H. Sumner for his new method of ascertaining a ship's position and the copyright was extinguished. In 1859 a special act gave to "Mistress Henry R. Schoolcraft" and her heirs for fourteen years the right to republish her husband's work on the Indian tribes originally published by order of Congress and to make any abridgement thereof, and a similar special copyright was voted in 1866 for Herndon's "Exploration of the Amazon" for his widow. An act of 1874 authorized the validation of William Tod Helmuth's work on surgery which had been imperfectly entered for copyright two years before, and a ninth private act in 1898 validated for like reason the copyright of Judson Jones in a work on orthoepy. {Sidenote: American possessions} In 1900 the act for the government of the territory of Hawaii repealed the Hawaiian copyright act of 1888 and extended United States copyright to Hawaii. In the same year the act providing temporary government for Porto Rico extended the copyright laws to that island. In 1904 the Attorney General rendered an opinion that Philippine authors were entitled to United States copyright but that the book must be manufactured within the United States. Hawaii, Porto Rico and the Philippine Islands, as well as Alaska, were later included by name in the jurisdiction of the code of 1909. American copyright was extended to the Canal Zone by War Department order in 1907. {Sidenote: The American code of 1909} Finally, in 1909, there was passed the new copyright code repealing all previous legislation and providing comprehensively for the whole subject of copyright, literary, artistic, dramatic, musical, or other. Under this code copyright is effected by publication with the statutory notice of copyright and completed by registration of two deposit copies sent to the Copyright Office promptly after publication. The manufacturing clause is continued and extended to require printing and binding as well as type-setting within the United States. The musical author is given control over mechanical reproductions though under provision for compulsory license in case he permits any such reproduction. The copyright term is for twenty-eight years with a like renewal term, making fifty-six years. Rights of performance are included under copyright, and unpublished works are specifically protected by special registration. These are the salient features of the code which is stated and discussed in detail in succeeding chapters. {Sidenote: State protection of playright} In line with the dramatic act of 1897, the dramatic authors between 1895 and 1905 procured state legislation in the States of New Hampshire, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut and Michigan, differing somewhat in form, to give effect to the federal copyright laws in respect to dramatic performance or to apply the principles of common law through the punishment of dramatic companies disregarding performing rights. {Sidenote: Citations} {Sidenote: Trade-Mark act} Citations of all these laws will be found in Appendix A of the report of copyright legislation from the Register of Copyrights, included in the report of the Librarian of Congress for 1904; and the full text of the United States acts, except the later ones, are given in "Copyright Enactments 1783-1904" issued from the Copyright Office in 1905 as Bulletin No. 3, and in a second revised and enlarged edition, extending to 1906, reissued in 1906. The Trade-Mark act of February 20, 1905, supplemented by an act of May 4, 1906, covers the protection of labels, etc., excluded from copyright by the copyright act, and is given, with a list of trade-mark laws of foreign nations, and trade-mark treaties with them, rules, indexes, etc., in a Government publication, entitled "United States Statutes concerning the registry of trade-marks with the rules of the Patent Office relating thereto." {Sidenote: Common law relations} The act of 1790 received an interpretation, in 1834, in the case of Wheaton _v._ Peters (rival law reports), at the bar of the U. S. Supreme Court, which placed copyright in the United States exactly in the _status_ it held in England after the decision of the House of Lords in 1774. The court referred directly to that decision as the ruling precedent, and declared that by the statute of 1790 Congress did not affirm an existing right, but created a right. It stated also that there was no common law of the United States and that (English) common law as to copyright had not been adopted in Pennsylvania, where the case arose. So late as 1880, in Putnam _v._ Pollard, claim was made that this ruling decision did not apply in New York, which, in its statute of 1786, expressly "provided, that nothing in this act shall extend to, affect, prejudice, or confirm the rights which any person may have to the printing or publishing of any books or pamphlets at common law, in cases not mentioned in this act." But the N. Y. Supreme Court decided that the precedent of Wheaton _v._ Peters nevertheless held. During the discussion of the present copyright code, Edward Everett Hale consulted with other veteran authors whose early works were passing out of copyright, with the intention of bringing a test case for the extension of copyright under common law after the expiration of the statutory period. But on proposing such a case to legal counsel he became assured that such a suit could not be maintained. {Sidenote: Divided opinions} As in the English case of Donaldson _v._ Becket, the decision in the American ruling case of Wheaton v. Peters came from a divided court. The opinion was handed down by Justice McLean, three other judges agreeing, Justices Thompson and Baldwin dissenting, a seventh judge being absent. The opinions of the dissenting judges, given in Eaton S. Drone's "A treatise on the law of property in intellectual productions," constitute one of the strongest statements ever made of natural rights in literary property, in opposition to the ruling that the right is solely the creature of the statute. "An author's right," says Justice Thompson, "ought to be esteemed an inviolable right established in sound reason and abstract morality." There seems, indeed, to be a sense of natural copyright among the American Indians; an Ojibwa brave will not sing the song belonging to another tribe or singer, and a Chippewa youth may learn his father's songs, on a customary gift of tobacco, but does not inherit the right to sing them. V SCOPE OF COPYRIGHT: RIGHTS AND EXTENT {Sidenote: General scope} The scope of copyright, or the nature and extent of the right or privilege, may be said to cover at common law identical rights with those in any other property, to use the phrase which, in Siam, transfers these rights to statutory law, but in statutory law must be taken to depend upon the terms of the statute. {Sidenote: American provisions} The new American copyright code, passed March 4, 1909, and in force July 1, 1909, in its fundamental provision broadly sets forth and specifically defines the scope of copyright, by providing (sec. 1): "That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right: "(a) To print, reprint, publish, copy, and vend the copyrighted work; "(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art; {Sidenote: Oral addresses} "(c) To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production; {Sidenote: Dramas} "(d) To perform or represent the copyrighted work publicly if it be a drama, or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever; {Sidenote: Music} "(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced"--which last clause is, however, limited by an elaborate proviso requiring the licensing of mechanical musical reproductions in case the copyright proprietor permits any reproduction by that means, which proviso is given in full in the chapter on mechanical music. {Sidenote: Previous American law} The American law previously defined the scope of copyright (Rev. Stat. sec. 4952), as "the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. And authors may reserve the right to dramatize or to translate their own works." The new code is both broader and more definite. {Sidenote: Unpublished works} The new American code is specific in preserving to an author previous to the publication of his work all common law rights in the comprehensive language (sec. 2): "That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor." {Sidenote: Common law scope} In the Washburn form of the copyright bill it was proposed to include a clause to the effect "that subject to the limitations and conditions of this Act copyright secured hereunder shall be entitled to all the rights and remedies which would be accorded to any other species of property at common law." But this provision was not accepted by the Congressional Committees and does not form part of the copyright code as enacted. {Sidenote: Common law in U. S. practice} The common law of England became the common law of its colonies and finally of the sovereign States of the United States, and common law is therefore administered by the state rather than by the federal courts. In the case of Wheaton _v._ Peters, the U. S. Supreme Court went so far as to say "there is no common law of the United States," but federal courts accept and apply in each State the common law as accepted in that State, and in later years the U. S. Supreme Court has held, as in 1901, in Western Union Tel. Co. _v._ Call Pub. Co., that where there is a conflict between the common law as accepted by different States or where the rule adopted is not in accord with federal courts, the United States courts will recognize and enforce the common law of England. This use by the federal courts, as here pointed out by Justice Brewer, is peculiarly applicable to interstate transactions. The effect of section 2 of the copyright code is to give the federal courts the special authority of Congress to accept and enforce the principles of common law and of equity in the case of unpublished works. {Sidenote: Statutory limitations} But in the case of a published work, the courts have denied to copyright works some of the rights and remedies applicable previous to publication, because not specifically granted by statute, in accordance with the established rule that no rights or remedies will be allowed by the courts unless specifically granted. But the common law right of the author is recognized by the courts notwithstanding the publication of his work, if that is done without the author's consent. In 1896, in the case of Press Pub. Co. _v._ Monroe, the doctrine was specifically held by the U. S. Circuit Court of Appeals through Judge Lacombe, that the unauthorized publisher may be restrained and damages obtained by civil action, and recovery in such an action will not divest the author of any of his rights or invest any of his rights in the infringer or the public. {Sidenote: General rights} Thus the owner of a copyrightable work may (before publication), as with other personal property, preserve his work exclusively for his own use, or he may (1) print, (2) reprint, (3) publish, (4) copy, or (5) vend it; or If it be a literary work he may (6) translate it, or (7) make any other version thereof, or (8) dramatize it; or If a work for oral delivery he may (9) deliver or authorize delivery in public for profit; or If it be a dramatic work he may (10) convert it into a novel or other non-dramatic form or (11) perform or represent it, or (as in 5) vend any manuscript or record thereof, or (12) make or cause to be made any transcription or record thereof; or (13) exhibit, perform, produce, or reproduce it in any manner or by any method; or If it be a musical work he may (14) arrange or (15) adapt it, or (as in 11) perform it publicly for profit, or (16) make any arrangement or (17) setting of the melody in any notation or by any form of record (the last subject to the license provision of the statute); or If a design for a work of art, he may (18) complete, execute, and finish it, --all these being specifically reserved and granted to the author, although in somewhat complex and overlapping phraseology, by the new American code. {Sidenote: Inferential rights} Or, in utilizing his rights at common law or as above granted by statute, he may (19) give, (20) lend, (21) grant, (22) sell, (23) manufacture, (24) lease or license, (25) mortgage, or (26) devise his work or the use of it, or (27) it may pass by inheritance,--as pointed out by Arthur Steuart, chairman of the Copyright Committee of the American Bar Association, in his argument before the Congressional Committees. {Sidenote: Differentiated rights} Or, as also pointed out by Mr. Steuart, he may "impose upon any of these estates any condition or limit," as by limiting the use (28) for special purposes, (29) at a special price, or (30) for a special time, or (31) in a special locality, or (32) to a special person. {Sidenote: Court protection} The rights scheduled, adds Mr. Steuart, the courts will protect (a) "in equity by injunction and the recovery of profits"; or (b) "at law by a civil action for trespass or conversion, with a recovery of special damages for actual injury or punitive damages for injury to reputation, or by replevin for the recovery of possession of the work, as well as by any other form of action known to the common law or statute law and proper to the protection of this class of property." {Sidenote: Division of rights} The owner of the copyright of a book may thus publish a limited edition of his book and sell it to whom he may please, or for a specified market. Such specified or divided rights are recognized in Germany as "_getheiltes Verlagsrecht_," in France as "_édition partagée_," and there is specific reference to them in the German copyright law. Some of the specified rights are cognate to the rights of a proprietor of land to sell a piece of land subject to certain restrictions, agreed upon with the purchaser or imposed upon the title in the deed of transfer. As in the frequent practice of restricting use for the purposes of a stable or a shop, or requiring that only one house shall be built on a specified number of lots. {Sidenote: Analysis of property rights} In an elaborate discussion of fundamental principles in his opinion in Harper _v._ Donohue, in 1905, affirmed by the Circuit Court of Appeals in 1906, Judge Sanborn analyzed the property rights of an author before publication, after unrestricted publication and after publication under the copyright acts. Among the rights before publication he mentions "the right to sell and assign the author's interest, either absolutely or conditionally, with or without qualification, limitation or restriction, territorial or otherwise, by oral or written transfer. Such literary property is not subject either to execution or taxation, because this might include a forced sale, the very thing the owner has the right to prevent." "Unrestricted publication," he says, "without copyright, is a transfer to the public to do most of the things the author might do, in common with the author, except all right of transfer and sale, which remains to the author; but without advantage, since the work has become, by the publication, common property." "The copyright acts," he concludes, "substantially give the following additional rights: To copyright, and thus secure the sole privilege of unlimited multiplication and sale of copies; to sell or transfer the unlimited right of reproduction, sale and publication, the limited right of serial publication, the right of publication in book form, the right of translation, the right of dramatization or one or more of these rights in specific territory, and the right to secure a copyright either generally, or in one or more countries whose laws permit it, either in the name of the author or assignee. Also the right to the author to license the sale or other restricted enjoyment of some lesser right, without the power to copyright." The courts have indeed held to very broad principles as to such rights. In the case of Press Pub. Co. _v._ Monroe, the court said: {Sidenote: Broad interpretation} "The right of property includes the right to transfer the subject of it or any interest in it by gift, grant, or device. And if the fruits of mental effort are regarded as property, like all other possessions, they descend to the legatees, the executors, and administrators of their creditors; they pass by sale or gift to their transferees; the use of them, limited or unlimited, goes to their licensees, and, logically, the power of the State is bound to protect forever the successive owners in the exclusive use and enjoyment thereof." {Sidenote: Limits of protection} Where these latter rights are not specifically granted by statute, the rule has been established by the courts that they will be upheld so far as necessarily inferable from the rights granted and not further. It is under this rule that the greater number of the mooted questions in the application of copyright law have arisen in respect to the scope of copyright. Most of these specific rights are in fact necessary inferences from the statute, in the protection of the property rights therein conferred, but the courts will not go beyond fair construction of the letter of the statute. {Sidenote: Differentiated contracts} In respect to the rights to give, lend, grant, manufacture, lease or license, mortgage or devise copyright property, it may be said that these are subsidiary rights conditioned on and essential to the general right of property in copyrightable or copyrighted material. An author may exercise any of these rights in respect to his unpublished work so far as they are applicable to it, or to his copyrighted work after publication; and either the copyrightable manuscript or the copyrighted work may pass by inheritance. Thus an author may manufacture, or cause to be manufactured, his unpublished work, and he may retain exclusive control over the manufactured copies so long as he pleases before publishing the work; and after publication (which involves placing on public sale, or publicly distributing) he may exercise these rights negatively by withdrawing his work from further sale. The English law, however, contains a provision that in certain cases the Crown may require continuance of publication. {Sidenote: Enforcement in limited grants} In respect to the right to limit the use of his work under his sale, gift, loan, grant, lease, etc., for a special purpose or at a special price, or for a special time, or in a special locality or to a special person, these powers of limitation, though implied in the grant of copyright, are dependent for their enforcement rather upon the law of contracts than upon copyright law. There can be no such thing as a copyright for a special purpose or for a special locality, or under other special conditions, for there can be only one copyright, and that a general copyright, in any one work. But specific contracts can be made, enforceable under the law of contracts, as for the sale of a copyrighted book within a certain territory, provided such contracts or limitations are not contrary to other laws. Although record of assignment in the Copyright Office is provided for by the law only for the copyright in general, the separate estates as a right to publish in a periodical and the right to publish as a book may be sold and assigned separately, and the special assignment recorded in the Copyright Office, though this does not convey a right to substitute in the copyright notice a name other than that of the recorded proprietor of the general copyright, which can only be changed as specifically provided in the law under recorded assignment of the entire copyright. {Sidenote: Copyright as monopoly} Copyright is a monopoly to which the government assures protection in granting the copyright. It is a monopoly not in the offensive sense, but in the sense of private and personal ownership; the public is not the loser but is the gainer by the protection and encouragement given to the author. The whole aim of copyright protection is to permit the author to sell as he pleases and to transfer his rights collectively or severally to such assigns as he may choose. Copyright is a monopoly only in the sense that any ownership is a monopoly. Says Herbert Spencer: "If I am a monopolist, so also are you; so also is every man. If I have no right to those products of my brain, neither have you to those of your hands. No one can become the sole owner of any article whatever; and all property is 'robbery.'" In the copyright debates of 1891, Senator O. H. Platt rightly said: "The very essence of copyright is the privilege of controlling the market. That is the only way in which a man's property in the work of his brain can be assured." And as Senator Evarts pointed out in the same debate: "The sole question is what we shall do concerning something which is the essential nature of copyright and patent protection, namely, monopoly." In discussing patent monopoly and the law of contracts in Victor Talking Machine Co. _v._ The Fair, the U. S. Circuit Court of Appeals, through Judge Baker, said, in 1903, that "within his domain the patentee is czar. The people must take the invention on the terms he dictates or let it alone for seventeen years." Thus as the government grants and guarantees the monopoly, it is not to be taken as in restraint of trade or otherwise contrary to law. Said Judge Cullen in the case of Murphy _v._ Christian Press Association, in the Appellate Division of the N. Y. Supreme Court, in 1899, decisions as to agreements in restraint of trade "have no application to agreements concerning copyrights and patents, the very object of which is to give monopolies." {Sidenote: Limit only in term} Copyright being in essence a monopoly giving to the copyright proprietor "exclusive rights," as the Constitution provides, the only limitation upon it should be that indicated in the Constitution which confines protection to "limited times." The opponents of copyright have frequently taken the course of falling back upon the plea that in the interests of the public the author should not have exclusive right to his writings and to manage his own affairs, but that Congress should prescribe how he should market his property. This commonly takes shape in the licensing scheme known in England as the Farrer plan and in America as the Pearsall-Smith plan, with respect to books; and in the passage of the "international copyright amendment" of 1891 this plan was made the basis of attack upon the measure. An analysis of the scheme as presented by R. Pearsall-Smith of Philadelphia is given by G. H. Putnam, from the book publisher's point of view, in the "Question of copyright." In the work on "The law and history of copyright," by Augustine Birrell, a member of the present British cabinet, this plan is characterized as a "preposterous scheme." In the case of a book, for instance, a publisher often suggests to the author the general idea of the book, so that it would be doubly unjust to permit any other publisher to issue that book on the compulsory license scheme; and this might hold true, although to less extent, in other fields of copyright. In any event, the original publisher makes large investment not only in type-setting, printing, and binding a book, or in the publishing of any other work, but in advertising and making a market, and that a rival publisher should have the benefit of this market without paying the cost is a violation of the very essence of property. This scheme, however, is applied, in a limited way and as a compromise, respecting mechanical music, in the American code of 1909, and constitutes its most serious defect. There is question, indeed, whether the compulsory license and fixed price may not be an unconstitutional provision. This matter is more fully discussed in later chapters. {Sidenote: Altered theory of copyright} It should be noted that whereas the previous American law required certain statutory formalities before publication, the new American code somewhat alters the theory of copyright, and more nearly conforms statutory with common law, by making publication with notice the initial copyright act and registration and deposit secondary acts necessary for the completion of the copyright and its protection under the statute. {Sidenote: Publishing} The definition of the date of publication (sec. 62) as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority" remedies the vagueness of the previous law and adopts into the statute court decisions to the effect that acts not by the authority of the author or proprietor do not constitute publication in the sense of dedication to the public. In other words, it is made clear that the right to publish inheres in the author and that he cannot be divested of it without his consent. This is the fundamental principle of the new law in the vital matter of protecting the author at the critical point at which an unpublished work, absolutely his own, becomes a published work, subject to statute. In this respect the American code of 1909 comes very close to the acceptance of the right in intellectual property as a natural and inherent right. {Sidenote: What constitutes publishing} As to what constitutes publishing, interpretation by the courts based on previous law will in many respects be applicable to the new code. A book which has been sold or leased to subscribers on a contract of restricted use is none the less published, as was set forth in the opinion by Chief Judge Parker of the N. Y. Court of Appeals in Jewellers' Mercantile Agency _v._ Jewellers' Weekly Pub. Co. in 1898, and in the opinion by Judge Putnam of the U. S. Circuit Court in Massachusetts in Ladd _v._ Oxnard in 1896, both having reference to credit-rating books leased to subscribers for their individual use. {Sidenote: "Privately printed" works} Publication depends upon sale or offer to the public, and it is a question whether the sale or offer of a copyrightable work, as the proceedings or publications of a society, to the members of that society only, constitutes publication, to be passed upon by the courts in view of the specific facts. A work "privately printed" or with the imprint "printed but not published," given or even sold by the author to his friends, and not sold generally by his authority, would probably not be held to be published; but the courts would probably hold that the sale of a work, though "privately printed," to merely nominal members of a nominal society, made up of the purchasers of the work, would constitute publication and, if without copyright notice, dedication. {Sidenote: Copying} As to the right to copy, this word in the broad sense as interpreted by the courts, covers the duplicating or multiplying of copies within the stated scope of the statute. It was argued in the mechanical music cases that the word copy extends to any form or method of duplication by which the thought of the author can be recorded or conveyed, but, as more fully stated in the chapter on mechanical music, the U. S. Supreme Court in White-Smith _v._ Apollo Co. in 1908 upheld the decision below that a perforated roll is not a _copy_ in fact of staff notation, and thus limited the statutory use of the word to duplication by similar or corresponding process. It was for this reason that such specific phrases as "to make any other version," "to convert," "to arrange or adapt," "to make transcription or record" were included in the new code, although these would be included in the broader sense of the right "to copy." {Sidenote: Vending} The right to vend covers by a comprehensive word those general rights of sale through which only can the author obtain remuneration for his work. The most important question which has arisen in respect to the application of this word, which is used both in the previous laws and in the present code, has been as to the use of this exclusive right to limit the conditions of sale after the original sale from the author or proprietor as vendor to the immediate vendee. The courts have in general held that the copyright and patent laws, while creating a legal monopoly for the author or original proprietor, do not authorize any continuing control, and have indeed gone so far as to indicate that a sale is absolute and complete unless limited by special contract within the principles of common or statutory law of contracts. In the leading case of Keeler v. Standard Folding Bed Co., the U. S. Supreme Court in 1895, through Justice Shiras, said: {Sidenote: Control of sale} "Upon the doctrine of these cases we think it follows that one who buys patented articles of manufacture from one authorized to sell them becomes possessed of an absolute property in such articles, unrestricted in time or place. Whether a patentee may protect himself and his assignees by special contracts brought home to the purchaser is not a question before us and upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one under the inherent meaning and effect of the patent laws." {Sidenote: Specific relation to copyrights: the Macy cases} This question in specific relation to copyrights again came before the U. S. Supreme Court in a series of cases, known as the Macy cases, between Isidor and Nathan Straus doing business as R. H. Macy & Co., on the one side, and the Bobbs-Merrill Co. and Charles Scribner's Sons as the respective defendants. In both cases, the publishers had sought to maintain the retail price of a book, as a right under the copyright law. The Bobbs-Merrill Co. copyrighted the "Castaway" May 18, 1904, and immediately below the copyright notice printed the following in each copy: "The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright." The Scribners sought to accomplish the same purpose as to their copyright books by printing in their catalogues, invoices and bills of goods the following notice: "Copyrighted net books published after May 1, 1901, and copyrighted fiction published after February 1, 1902, are sold on condition that prices be maintained as provided by the regulations of the American Publishers' Association." New dealers were required by the American Publishers' Association, in consideration of a discount allowed by the publisher in question, to enter into an agreement as indicated, but this agreement Macy & Co. refused to accept and they bought books as best they could and sold them at "cut rates," thus inducing dealers from whom the purchases were made to violate the agreement with the publishers. {Sidenote: The Bobbs-Merrill case} In the leading case of Bobbs-Merrill Co., appellant, _v._ Straus, the opinion of the U. S. Supreme Court was delivered June 1, 1908, by Justice Day, who said: "The precise question in this case is, does the sole right to vend (named in section 4952) secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum? We do not think the statute can be given such a construction, and it is to be remembered that this is purely a question of statutory construction. There is no claim in this case of contract limitation, nor license agreement controlling the subsequent sales of the book. In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract." {Sidenote: The Scribner case} In the Scribner case the decision delivered on the same day by the same justice, upheld the lower courts in their view, "that there was nothing in any of the notices of a claim of right or reservation under the copyright law," and "that independent of statutory law" the question of relief in equity was not open to the federal courts because there was no diversity of citizenship nor claim above $2000 "requisite to confer jurisdiction of questions of rights independent of the copyright statutes." On the allegations of the bill as to alleged contributory infringement by inducing dealers to sell in violation of agreement, on which the lower courts held that complainants had not proved an agreement based upon their printed notice, the Supreme Court declined to review the question of fact. {Sidenote: English underselling case} In the English case of Larby _v._ Love, in 1910, however, Justice Bucknill in the King's Bench held the defendant liable for damages for the sale of certain maps to undersellers in disregard of prohibitions specified in the bill of sale. {Sidenote: Suits under state law} The Macy cases included suits in the New York State courts by Straus _v._ American Publishers' Association _et al._, claiming that the action of the publishers in endeavoring to maintain rates constituted a conspiracy in restraint of trade contrary to the statutes. The N. Y. Court of Appeals held, through Chief Judge Parker, that the agreements would have been free from legal objections if confined solely to copyright publications, but were contrary to the statute in affecting the right of a dealer to sell books not copyrighted at the price he chooses. The copyright side of the question was again pressed in the lower courts and reached the Court of Appeals a second time in 1908, when it was passed upon by a divided court, four to three, Judge Gray for the court declining to review its previous action. The dissenting judges, through Judge Bartlett, held that the decision of the U. S. Supreme Court in the Bobbs-Merrill case did apply in the current case and that the State Court of Appeals should therefore conform its decision to the finding of the federal Supreme Court. The question has been brought into the federal courts in a new series of suits, and it has yet to be finally settled by the U. S. Supreme Court, whether the legal monopoly conferred by the copyright statute safeguards the copyright proprietor against certain provisions of the anti-trust laws, state or national. {Sidenote: Translating} {Sidenote: "Other version"} The right "to translate into other languages or dialects" is strengthened in the new American code by the addition of the phrase "or to make any other version thereof," and the author is thus given exclusive right and entire control as to translation of his original work by himself or others, without specific reservation of rights except as implied and included in the general copyright notice. The broad phrase "make any other version thereof" may cover not only translation into another language, but into another literary form as from prose into poetry or _vice versa_. No case involving construction of this phrase seems yet to have arisen to be decided by the courts; but the author of a narrative poem, like Owen Meredith's "Lucile" or Tennyson's "Enoch Arden," could probably prevent the transformation of his poetical work into equivalent prose; and a novelist would have probably a like protection in case of an attempt to duplicate or transform his story as a narrative poem. This view is confirmed by the analogous specific protection of the right to dramatize a work or convert a drama into non-dramatic form. {Sidenote: Translating term} The exclusive right "to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a non-dramatic work" are granted by the act for the same period as the term of original copyright and the renewal term, instead of for a shorter period, as ten years, as is the case in certain foreign legislation. The right to translate or to dramatize is separate from the right to copyright a translation or dramatization, as is shown by the fact that a translation or dramatization can be separately copyrighted for a term extending from its own date of publication and therefore possibly beyond the copyright term of the original work, though on the expiration of the primary copyright any one else may make a translation or dramatization despite the continuing existence of the copyright in the authorized translation or dramatization. These subjects are more specifically discussed for translations under the subject-matter of copyright and for dramatizations under dramatic and musical copyright. {Sidenote: Oral delivery} The exclusive right to deliver orally addresses and similar productions is now specifically included in the American law, as in the laws of some other countries, and probably involves the right to register, before publication, any literary production intended for oral delivery before it is printed in a book or periodical. Thus if Mr. Cable desires to include in his readings, especially if in public for profit, chapters from an unpublished novel, or a poet desires to protect his copyright in a poem which he publicly recites, it may be desirable that he should register such unpublished work under the provisions of the act for that purpose; although it is a generally accepted doctrine that oral delivery does not constitute publication, and that the matter orally delivered may thus be protected at common law. {Sidenote: "Publicly and for profit"} It should be noted that in the case of a lecture or other work for oral delivery and of a musical composition, the exclusive right is given for its delivery or performance "publicly and for profit," and in the case of a drama, "publicly," the words for profit being, probably by inadvertence, omitted. There is some question, therefore, whether a copyrighted lecture, drama, or musical composition can be given without consent of the author privately, or, except in the case of a drama, gratuitously before the public. In view of the special exception (sec. 28) exempting oratorios, etc., performed for charitable or educational purposes and not for profit, from authorization or payment, as well as on general principles of construction, it would seem probable that the courts would protect the author of a lecture, drama, or musical composition, except in such instances as a private rendering in a private house, to which there was not public admission and at which no fee was charged or collection taken. The cases bearing on this point are given in the later chapter on dramatic and musical copyright. {Sidenote: Material and immaterial property} The American code adopts into the law an important distinction as between the property in the material and the immaterial rights, hitherto somewhat uncertain, in the following provision (sec. 41): "That the copyright is distinct from the property in the material object copyrighted, and the sale, or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained." The negative provision in this section was inserted in the new copyright law apparently to differentiate it from patent law with the intent of preventing the proprietor of a copyrighted work from controlling the conditions of sale after copies had left his possession. It is doubtful what, if any, effect this provision may have, as the phrase "lawfully obtained" would scarcely have the result of limiting and annulling contractual conditions of sale. The innocent purchase of a stolen book would not relieve the purchaser from the necessity of returning the stolen property to its proper owner, although as far as intent, knowledge, and payment are concerned, he would have "lawfully obtained" it. {Sidenote: Schemes not copyrightable} The scope of copyright cannot be extended to cover a business or other scheme described in a copyrighted book, as was held in 1906 in Burk _v_. Johnson by the Circuit Court of Appeals in denying relief under copyright protection to the originator of a mutual burial association who copyrighted the articles of association. {Sidenote: The new British code} The new British measure defines copyright to mean "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever and in any language," thus assuring rights of translation hitherto imperfect or doubtful; "to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work"; and specifically includes the sole right of dramatization (from an "artistic," as well as other non-dramatic work), novelization, and reproduction by mechanical means (though with compulsory license provision as to reproduced music). A copyright may be assigned or licensed "either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof." "Copyright or any similar right in any literary dramatic musical or artistic work, whether published or unpublished," is expressly denied "otherwise than under and in accordance with the provisions of this Act" or other statutory enactment; and thus common law seems to be totally abrogated. Hitherto common law property in an unpublished work has been absolute and co-existed with statutory remedies up to publication, as was strongly upheld in 1908 in Mansell _v_. Valley Printing Co. in the English Court of Appeal. As to published works, the new code continues the settled law reiterated as late as 1910 in Monckton _v_. The Gramaphone Co., where Justice Joyce in the Chancery Division denied the common law claim of the author of a song printed with prohibition of mechanical production, on the ground that after publication there was no copyright except as given by statute. {Sidenote: Foreign statutes} The statutes of foreign countries are in general of similar scope, though with variations of extent and phraseology in the several countries. The broadest seems to be that of Siam, above cited, translating common law rights into statutory privilege, though that country also contradictorily limits copyright in books by a manufacturing clause. Spain specifically protects works produced or published by "any kind of impression or reproduction known now or subsequently invented," as elsewhere quoted. France specifically gives an author right to assign his property in whole or in part--a right which is probably included in other countries under the general construction of statutory rights in property. {Sidenote: International provisions} The international copyright convention, as modified at Berlin, does not define the scope of copyright, but insures for authors the enjoyment of such rights as the domestic laws accord to natives; but in its several articles it makes specific provision as to representation, translation, adaptation, mechanical reproduction, etc., as set forth in the chapter on international copyright conventions. Common law, or a crude equivalent for it, as enforced by the courts, seems to extend copyright protection, in the absence of specific legislation, in Montenegro, Egypt and Liberia, Honduras, the Dominican Republic, and Uruguay, as formerly in Argentina. VI SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED {Sidenote: Subject-matter in general} The subject-matter of copyright should include, in the nature of things, those products of invention, creations of the human brain, which are realized and utilized immaterially through material records, and not, as in the case of patents, materially through the material itself. Copyrightable works, in brief, are those which appeal from the imagination to the imagination, or in which intellectual labor combines immaterial product into new form. What may be copyrighted specifically and practically depends, under present conditions of law, upon the statutory provisions, national or international, of the several nations of the world. {Sidenote: Classification} The new American code gives the following classification of copyrightable works: "(Sec. 5.) That the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs: "(a) Books, including composite and cyclopædic works, directories, gazetteers, and other compilations; "(b) Periodicals, including newspapers; "(c) Lectures, sermons, addresses, prepared for oral delivery; "(d) Dramatic or dramatico-musical compositions; "(e) Musical compositions; "(f) Maps; "(g) Works of art; models or designs for works of art; "(h) Reproductions of a work of art; "(i) Drawings or plastic works of a scientific or technical character; "(j) Photographs; "(k) Prints and pictorial illustrations: "_Provided, nevertheless_, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act." {Sidenote: Prints and labels excluded} Prints or labels "not connected with the fine arts," but "designed to be used for any other articles of manufacture," are subject only to registration in the Patent Office in accordance with the act of June 18, 1874. {Sidenote: All the writings of an author} It is enacted (sec. 4): "That the works for which copyright may be secured under this Act shall include all the writings of an author," thus linking the phraseology of the law with the provision in the Constitution of the United States in which the word "writings" is used, with the effect of construing that word by the classification above cited. {Sidenote: Component parts} It is also enacted (sec. 3): "That the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act." {Sidenote: Compilations, new editions, etc.} It is also enacted (sec. 6): "That compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works." {Sidenote: Non-copyrightable works} The provisions of the law regarding the subject-matter of copyright are completed by the negative provision: "(Sec. 7.) That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof: _Provided, however_, That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor." {Sidenote: Government use} It is not to be inferred from the provision as to Government publications, that the United States has itself a right to use copyright material without consent of the copyright proprietor. The sovereignty of the nation is not to transgress the rights of private property, unless in the necessary exercise of war or police powers, as the sovereign state cannot take land over which it is theoretically sovereign from a private owner except for public purposes and then only by condemnation proceedings at law and with fair remuneration to the proprietor. No right of eminent domain in respect to copyrights is asserted by the United States, and the provision means only that material, otherwise copyrightable, furnished by a public officer or otherwise to the Government, becoming the property of the Government, is put freely at the service of the people. {Sidenote: "Author" and "writing" definitions} The constitutional provision is thus given the broadest interpretation in the act. In the narrow sense the dictionaries define "author" as "one who composes or writes a _book_" (Webster), and "writing" variously as "a record made by _hand_," "a production of the _pen_," "any expression of thought in _visible_ words" (Century); "anything expressed in _letters_" (Webster, Stormonth, Standard); "a written paper," "a legal instrument" (Johnson); "a literary production" (Chambers); "forming by the hand letters or characters on paper or other suitable substance" (Bouvier's Law Dictionary); "words made _legible_ by any device," "a document, whether manuscript or printed, as opposed to mere spoken words" (Rapalje and Lawrence, Law Dict.); "expression of ideas by visible letters" (Anderson's Dict. of Law). For years Massachusetts voters cast a handwriting ballot, until the courts held that a printed ballot fulfilled the "written ballot" requirement of the Massachusetts constitution. But in the wider sense an author is "a creator, an originator" (Webster, Standard), and a writing is the record or expression of a thought or idea. {Sidenote: Interpretation by Congress and courts} Congress, upheld by the courts, had specifically included (law of 1870) under "writings" in the Constitution a "statue," "statuary," "model," without requiring the artist to make a preliminary sketch (if that be specifically a writing)--otherwise, as sculptors are not "inventors" making "discoveries," they could not be protected at all; and in other countries protection has been extended to oral delivery of an address presumably but not necessarily written. It might be claimed, under a restrictive interpretation of the Constitution, that only works specifically relating to "science and useful arts" might be protected, although literature and the fine arts are admittedly especial subjects of copyright. While it is for the judiciary and not for the legislature to construe or interpret the Constitution, the right of Congress to pass laws based upon its understanding of the Constitution, subject to the final decision of the federal courts, has not been challenged. And the code of 1909 by its classification (sec. 5) and its inclusive clause (sec. 4) is most comprehensive in this respect. {Sidenote: Supreme Court decisions} The U. S. Supreme Court, in 1884, in the decision of Burrow-Giles Lith. Co. _v._ Sarony, extending the principles of the copyright act to cover photographs, said through Justice Miller: "By 'writings' is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writings, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list of 1802 is probably that they did not exist, as photography as an art was then unknown." It seems evident that the phrase "visible expression" as used in this decision was intended to give a broad definition and not to narrow the definition by the exclusion, for instance, of "audible expression," as otherwise the _performance_ of a drama or of a musical composition could not be included under copyright protection. This view is confirmed by the later decision of the same court, in 1899, in Holmes _v._ Hurst: "It is the intellectual production of the author which the copyright protects, and not the particular form which such production ultimately takes; and the word 'book' is not to be understood in its technical sense as a bound volume, but any species of publication which the author selects to embody his literary product." {Sidenote: Originality and merit} The courts are disposed to extend copyright to any work involving intellectual labor or brain skill, without emphasizing originality or literary merit. In the important case of Walter _v._ Lane, in which a _verbatim_ report of Lord Rosebery's speeches was protected, by decision of the House of Lords, in 1900, Lord Chancellor Halsbury said: "Although I think in these compositions (_i. e._ the work of the stenographer) there is literary merit and intellectual labor, yet the statute seems to me to require neither--nor originality either in thought or language ... the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever." {Sidenote: "Book" definitions} The word "book" covers the great body of copyright property, and has been many times the subject of judicial construction giving the most comprehensive meaning to the term. The English judges early held that protection "could not depend upon the form of the publication"; "that a composition on a single sheet might well be a book within the meaning of the legislature"; and that "any composition, whether large or small, is a book within the meaning of this act." The English law of 1842 afterward specifically construed the word "book" "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart or plan, separately published." The law of the United States makes no definition of the term, except by specifically including as books "composite and cyclopædic works, directories, gazetteers, and other compilations"; but our judges have agreed with the English view, Judge Thompson holding, in 1828, in Clayton _v._ Stone, that a "book" may be printed "only on one sheet," and that "the literary property intended to be protected by the Act is not to be determined by the size, form or shape ... but by the subject-matter," and Judge Leavitt, in 1862, in Drury v. Ewing, that a diagram for cutting dresses, with directions, printed on a single sheet, being "the product of thought and mental toil," was a "book" within the benefit of the law. {Sidenote: Inclusions adjudicated} In fact, though all English and American statutes have been avowedly for "the encouragement of learning" and "the progress of science and useful arts," the courts have construed the laws to cover in the widest sense any "useful book." The courts have indeed denied copyright protection only to works having absolutely no literary quality, such as advertisements (unless they contain original literary matter) and advertising cuts, labels, blank books, or blank forms. Even booksellers' and other trade catalogues, having descriptive notes or distinctive arrangement and combination, can be copyrighted. Compilations of existing materials, from common sources, arranged and combined in an original and useful form, receive the same protection as wholly original matter. Drone schedules English or American judicial constructions extending this principle to: (1) general miscellaneous compilations; (2) annotations consisting of common materials; (3) dictionaries; (4) books of chronology; (5) gazetteers; (6) itineraries, road and guide books; (7) directories; (8) maps and charts; (9) calendars; (10) catalogues; (11) mathematical tables; (12) a list of hounds; (13) abstracts of titles to lands; and collections of (14) statistics, (15) statutory forms, (16) recipes, and (17) designs--several of which classes are now specifically included in the new American statute. Later decisions have confirmed several of these categories and have specified also (18) trotting records; (19) racing charts; (20) newspaper reports of public speeches; (21) telegraphic codes; (22) mining reports; (23) a tradesman's alphabetical list of wares; (24) a list of public documents; (25) mathematical calculations; (26) legal forms; (27) an application form for membership; (28) complications of railroad time-tables; (29) commercial circulars, protected by a Canadian decision; (30) school registers, and (31) stud book list of horses. {Sidenote: Exclusions adjudicated} On the other hand, the courts have declined to include as proper subjects of copyright (a) methods or plans, as for compiling credit-ratings or systems, as in the case of (b) shorthand, (c) trading stamps or coupons as described in a copyrighted advertising pamphlet, or (d) of letter-file indexes; (e) a sleeve pattern chart; (f) the face of a barometer; (g) a railway ticket designed for punching; (h) a day's sporting tips; (i) blank books; or (j) blank forms, as a cricket score-card; and (k) monograms. {Sidenote: Inclusions defined} In the new Rules and Regulations of the Copyright Office promulgated as approved by the Librarian of Congress in 1910 as Bulletin No. 15, it is said as to books: "(4, _a_) _Books._--This term includes all printed literary works (except dramatic compositions) whether published in the ordinary shape of a book or pamphlet, or printed as a leaflet, card, or single page. The term 'book' as used in the law includes tabulated forms of information, frequently called charts; tables of figures showing the results of mathematical computations such as logarithmic tables; interest, cost, and wage tables, etc., single poems, and the words of a song when printed and published without music; librettos; descriptions of moving pictures or spectacles; encyclopædias; catalogues; directories; gazetteers and similar compilations; circulars or folders containing information in the form of reading matter other than mere lists of articles, names and addresses, and literary contributions to periodicals or newspapers." {Sidenote: Exclusions defined} On the other hand, definitions are made negatively that: "(5) The term 'book' can not be applied to-- "Blank books for use in business or in carrying out any system of transacting affairs, such as record books, account books, memorandum books, diaries or journals, bank deposit and check books; forms of contracts or leases which do not contain original copyrightable matter; coupons; forms for use in commercial, legal, or financial transactions, which are wholly or partly blank and whose value lies in their usefulness and not in their merit as literary compositions. "Directions on scales, or dials, or mathematical or other instruments; puzzles; games; rebuses; labels; wrappers; formulæ on boxes, bottles, and other receptacles of articles for sale or meant to accompany such articles. "Advertisements or catalogues which merely set forth the names, prices, and places where articles are for sale. "Prefaces or other introductory matter to works not themselves entitled to copyright protection, such as blank books. "Calendars are not capable of registration as such, but if they contain copyrightable reading matter or pictures they may be registered either as 'books' or as 'prints' according to the nature of the copyrightable matter." The Rules also make the following negative definitions: "(12) No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles." The definition of other classes of subject-matter given in the new Rules and Regulations of the Copyright Office, including that of maps, will be found in the chapters on dramatic and musical copyright and on artistic copyright. {Sidenote: Blank books} In the case of Everson _v._ Young, then Librarian of Congress, Judge Cole, of the Supreme Court of the District of Columbia, in 1889, refused a mandamus against the copyright officer while admitting that "the librarian had no discretion" on the ground that mandamus "will not be used to order a vain thing to be done" and that a blank book "containing not a single English sentence" is not a subject of copyright. "The copyright statutes," as is said in Circular Letter no. 32 of the Copyright Office, "in designating the classes of articles which may be registered in this office do not mention blank forms or blank books. The United States courts which have jurisdiction in cases arising under the copyright laws have held that blank forms or blank books or similar articles _for use in themselves_ are not subject to copyright, and hence are not registrable in this office. A bill was introduced in Congress in 1904 proposing to extend the protection of the copyright law to vouchers, certificates, or other business forms, wholly or partly printed. But the measure was not favorably acted upon and did not become law." This exclusion does not refer to such publications as an insurance policy or a legal document, on which blank spaces are to be filled in, which are accepted as proper subject-matter for copyright by the Copyright Office. {Sidenote: Combinations and arrangements} The copyright under certain categories above scheduled may be in the combination and arrangement only, or it may be also in any original material included with other material. Quantity is not an essential element in copyright so much as "substantial importance." An English court protected a passage of only sixty words. {Sidenote: Advertisements} In respect to advertisements and advertising matter as such, the new American code is silent, and court decisions, mostly English, have been contradictory. In 1863 Vice-Chancellor Page Wood, in Hotten _v._ Arthur, "found no difficulty" in deciding that a catalogue of old books was a subject of copyright "notwithstanding that the catalogues were for the purpose of advertising the plaintiffs' stock-in-trade, and were not in themselves offered for sale"; but in 1872 Lord Romilly, in Cobbett _v._ Woodward, made an absolutely contrary decision, saying: "But at the last, it comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong in doing so, unless you lead the public to believe that you sell the articles of the person whose advertisement you copy." This last decision was definitely overruled and in 1882, in Maple _v._ Junior Army & Navy Stores, the English Court of Appeal, in protecting an advertising catalogue consisting mostly of engravings of furniture, said through Justice Jessel: "The case which has done all the mischief is Cobbett _v._ Woodward.... I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights." In 1906, in Davis _v._ Benjamin, the Chancery Division held a sheet of advertising illustrations with headlines and prices a book. {Sidenote: Undistinctive advertising not protectable} An advertisement _per se_ of an ordinary character, the courts may decline to protect, either on behalf of the advertiser or of the publisher of the periodical in which it appears; thus possibly ordinary advertisements might be copied by another paper, to give an inflated impression of its advertising patronage unless enjoined for intent to deceive. On the other hand, characteristic advertisements, as those for which department stores pay large sums to advertisement writers, could doubtless be copyrighted to prevent their use by rival firms, though the advertiser would scarcely be interested in preventing the wide diffusion of his advertisement with his name by its gratuitous publication elsewhere. Some street-car advertisements, however, bear copyright notices. Whether the proprietor of a copyrighted periodical could prevent the use of a copyrightable advertisement not protected by specific copyright, in a rival newspaper, would be questionable, though a publisher might be granted an injunction for the combination or arrangement of copyrightable advertisements in his periodical. In 1892, in Lamb _v._ Evans, Lord Justice Lindley, in the English Court of Appeal, said: "I do not see myself the difficulty in the publisher's having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd." An advertisement appearing in several publications, some of them not copyrighted, could only be protected in these latter by specific copyright notice, even though covered in the copyrighted periodicals as a component part. The Copyright Office can make no clear line of demarcation in advance as to advertisements, but it has declined in a recent instance to accept for registry recipes printed on tin and inserted in packages of flour to advertise the flour, which could scarcely be accepted as a "book" or other copyrightable matter. {Sidenote: New editions} New editions are protected under the American code as new works (sec. 6), to the extent that they include new material; and this is in accord with the whole trend of court decisions. In 1852 Vice-Chancellor Kindersley stated the doctrine that "if a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, _quoad_ those, it is a new work." So in 1870, in Black _v._ Murray & Son, Lockhart's edition of Scott's "Border Minstrelsy" was protected, on Lord President Inglis' decision, to the full extent of the notes: "Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that just as clearly will entitle the author to a copyright running from the date of the new edition." A few colorable alterations or unimportant notes may not justify a new copyright; a Scotch justice, however, contended that Walter Scott's change of a single word in "Glenallan's Earl" authorized a copyright for the new edition, though another law lord differed, and the case was decided on other grounds. It is doubtful indeed whether there can be protection of a single word, a question which arose in the _Belgravia_ case, unless having association in the public mind as a trade-mark. In any event, the copyright on a new edition, whether made by rewriting, extending, condensing, annotating, or otherwise altering, runs independently of the term of the original or any other edition, covers only the new parts, and cannot prevent the issue by others of the original or any other edition on which copyright has expired. This is made entirely clear in the new code (sec. 6). {Sidenote: Copyright comprehensive} "A book must include every part of the book; it must include every print, design, or engraving which forms part of the book, as well as the letterpress therein, which is another part of it," according to the ruling decision of Vice-Chancellor Parker, in 1852, in the English case of Bogue _v._ Houlston. To the same effect Drone says: "The copyright protects the whole and all the parts and contents of a book: when the book comprises a number of independent compositions, each of the latter is as fully protected as the whole." The copyright under the new law protects (sec. 3) "all the copyrightable component parts of the work copyrighted." The practice of some publishers in copyrighting a magazine and also specific articles or engravings seems, therefore, a work of doubtful expediency. The new law specifically gives to the proprietor of "composite works or periodicals" (sec. 3) "all the rights in respect thereto which he would have if each part were individually copyrighted." {Sidenote: Non-copyrightable parts excepted} On the other hand, copyright cannot extend to any part of a book not subject in itself to copyright, even under the old law, and the new law (sec. 3) is perfectly plain. The general copyright is not, however, vitiated as to copyrightable portions by its seeming to cover non-copyrightable portions, as was held by Lord Kenyon, in 1801, in Cary _v._ Longman. But when copyright is claimed on a work partly composed of uncopyrightable matter the courts may require the claimant, on interrogatories, to designate which parts are and which are not original. "If the parts cannot be separated," says Drone, "it would seem that copyright will not vest in any of it." The new code is to the same effect. {Sidenote: Book illustrations} The application of these principles to the protection of a "new edition" which is new only with respect to added illustrations, is very simple. It is only the new illustrations which can be copyrighted, and it is matter for question whether the endeavor to protect an edition of unaltered text by a general copyright notice which really covers only a few added illustrations would not be a false use of the copyright notice. A proper copyright notice on an illustrated book will, however, protect the illustrations against indirect as well as direct reproduction; thus in 1908 in Harper _v._ Kalem, Judge Lacombe in the U. S. Circuit Court in New York protected certain illustrations in "Ben Hur" against their reproduction in moving pictures. {Sidenote: Translations} In respect to translations, the new American law is specific, not only in its mention of "translations" (sec. 6), but in giving (sec. 1, b) the exclusive right "to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work." The early American precedent was the case of "Uncle Tom's cabin," in 1853, in which Mrs. Stowe had copyrighted not only the original work, but a German translation which she had provided; Justice Grier in the U. S. Circuit Court held that she could not recover against one Thomas who was issuing another German translation, since it was not "_copies_ of her _book_." This case was previous to the statute permitting authors to reserve the right of translation, and the new code as above cited fully protects translations. The author of a copyrighted work thus has the exclusive right to translate his work, or license its translation, into any other language, and under such a license the translator with the consent of the author would have the right to copyright his translation. Where the author employs a translator for hire, the copyright in the translation may be secured by the author of the original work, but under ordinary circumstances the copyright in the translation would be secured by or on behalf of the translator. In case of contest on this point, the issue would be a question of contract, and in the absence of contract or specific assent the courts would doubtless base their decisions on the circumstances of the case so far as they could be held to imply contract. The inclusion of the notice of copyright of the original work on a translation, without specific copyright of the translation itself, would be held, it seems probable, to protect the translation under the author's original copyright; but this would limit the copyright term on the translation to the copyright term of the original work, and for this and other reasons a specific copyright on each translation is desirable, in which case the notice of copyright of the original work need not be given on the translation. {Sidenote: Translator's rights} In the case of the translation of a copyright work, the author of the original work has the right to prevent other translations, but the translator has no such right to prevent translation by another translator except as exclusive right to translate is conveyed or implied to him by the author of the original work. A work in the public domain, as a non-copyright work or a work on which copyright has expired, may be translated by any one and the translation copyrighted, but such translator would not have the right to prevent translation by another translator. {Sidenote: English practice} In England, while the right of translation may be reserved under the international copyright act by notice on the title-page, an English author could reserve his right of translation only by providing such translation, but the new code gives the full right. {Sidenote: Translations in international relations} The American provisions as to translations apply with especial importance to international relations. "The original text of a book of foreign origin in a language or languages other than English" is copyrightable in America without manufacture here; and such a work, duly copyrighted, can only be translated into English or any other language by authority of the foreign author or his assigns, and such translation in English or any other language can be copyrighted only when manufactured in this country as provided in the act. If the original text of a foreign work is not duly copyrighted under the American law, then translation is open to any one and copyright can be secured only for the particular translation copyrighted, as above stated, and this cannot prevent independent translation into the same or any other language. Thus, a German original duly copyrighted may not be translated into English, French, or any other language without authority of the copyright proprietor, nor can an English translation be made, for instance, from a French translation of the copyrighted work; but any number of translations of the copyrighted German work into English or any other language may be separately copyrighted under the American law, subject to the manufacturing clause, if duly authorized by the copyright proprietor, and each translator could only prevent the copying of his particular translation or the translation of his own version into another language. {Sidenote: Foreign translators} A translation can be copyrighted by a translator only in case he is a citizen of a country with which the United States has copyright relations or is a resident of this country; thus a Swedish translation by a citizen of Sweden not resident in the United States could not be copyrighted unless the translator had been "employed for hire" by the author or proprietor of the original copyrighted work. If the entire copyright of the original work had been sold by the author to a citizen of Sweden, not a resident in the United States, it would seem to follow that the latter could not copyright a translation though he might retain the right to prevent unauthorized translation under the general copyright which he had purchased. In the case of an authorized independent translation made by a Swedish citizen not resident here, the general notice of copyright of the original work might be utilized to protect the translation, but in such case copies not manufactured in the United States could not be imported into this country; while if such authorized translation bore no copyright notice and were imported into the United States by the author or with his consent, it is probable that this translation, but not the original work or another translation from either, would be freed from copyright protection. {Sidenote: Abridgments} In respect to abridgments, these are specifically mentioned (sec. 6) as copyrightable works, and by inference from this clause and the provision (sec. 1) giving an author the exclusive right to "make any other version," the author or proprietor of a literary work may prevent abridgment of his work. The courts had held to precedents which the best writers, such as Curtis, Drone and Copinger, declare to be contradictory to the true principles of copyright law. In 1740 Lord Hardwicke, deciding against a mere reprint, "colorably shortened only," of Sir Matthew Hale's "Pleas of the Crown," declared that he would not restrain "a real and fair abridgment," and in 1774 Lord Chancellor Apsley, after consultation with Blackstone, held that an abridgment of Hawkesworth's "Voyages," involving understanding and skill, was not plagiarism or a copyright wrong, but "an allowable and meritorious work." In the leading American case of Story's "Commentaries," Story v. Holcombe, in 1847, in the U. S. Supreme Court, Justice McLean, while expressing his own opinion that "an abridgment, if fairly made, contains the principle of the original work, and this constitutes its value," added, "but a contrary doctrine has long been established in England ... and in this country the same doctrine has prevailed. I am, therefore, bound by precedent, and I yield to it in this instance, more as a principle of law than a rule of reason or justice." Similarly, in Lawrence v. Dana, in 1869, Judge Clifford, in the U. S. Circuit Court, declared that "an abridgment ought to be regarded as an infringement ... but the opposite doctrine has been too long established to be considered open to controversy." The language of the new code frees the courts from these precedents and settles the American law. {Sidenote: Compilations} In respect to compilations, these are protected by specific mention (sec. 6) in the new law, and also by the classification as books (sec. 5, a) of "composite and cyclopædic works, directories, gazetteers, and other compilations." Compilations can be protected even if consisting solely of non-copyright material, "because of the originality, arrangement, selection, abridgment, or amplification of such simple material," as stated in the Scotch Court of Session, in the case of Lennie v. Pillans in 1843, with which later English and American decisions are in accord. {Sidenote: Collections} Collections are copyrightable as compilations or otherwise, and where the use of copyrighted poems or other copyright material is permitted, these are protected by general copyright notice on the collection. Permission to use a copyrighted poem, for instance, in a specified collection does not grant a license to use it in other form, though it could be used in a combination of such collections. In 1896, in Gabriel _v._ McCabe, Judge Grosscup in the U. S. Circuit Court in Illinois held that the licensor could not prevent the use of a song licensed for a particular collection in a combination of this collection in another collection or in an abridged edition of the collection, though an "abridgment" involving a reprint of the song by itself would have been an unfair use of the license. {Sidenote: Titles} As to titles, which are not mentioned in the new code, both English and American court decisions are broadly and generally, though with some exceptions, to the effect that there is no copyright protection for the title of a book _per se_, but it may be considered an essential part of the book. Judge Shepley held, in 1872, in his elaborate discussion of the question of titles in Osgood _v._ Allen as to the periodical _Our Young Folks_, that "the right secured is the property in the literary composition--the product of the mind and genius of the author--and not in the name or title given to it. The title does not necessarily involve any literary composition; it may not be, and certainly the statute does not require that it should be, the product of the author's mind.... It is a mere appendage, which only identifies, and frequently does not in any way describe, the literary composition itself.... If there were no piracy of the copyrighted book there would be no remedy ... for the use of a title which could not be copyrighted independently of the book." Judge Lacombe accepted this view in his decision of the "Trilby" case, cited beyond. {Sidenote: Changed titles} Conversely, the publication of a copyrighted work under a changed title, with the original notice of copyright, would probably not invalidate the copyright, though it would make identification more difficult and prevent the copyright certificate being _prima facie_ proof; and change of title is a practice altogether reprehensible. A new copyright of the same book changed only in title, with a new copyright notice of later date, could scarcely be construed as a new edition and in the absence of the original copyright notice the copyright might thus be abandoned or forfeited and the work be dedicated to the public. {Sidenote: General titles} General titles cannot in any way be protected. The publishers of the "_Bibliographie Universelle_," in France, the "Post Office Directory," in England, and of "Irving's Works," in America, were all defeated in attempts to prevent the use of those titles. {Sidenote: Titles as trade-marks} Titles are rather to be considered as trade-marks, which may be registered in the United States under the Trade-Mark acts of 1905-6, and protected by the statutory penalties, or may be protected on general principles of equity. This doctrine was early upheld by the English courts, especially in regard to periodicals, as in the titles of _Bell's Life_ and the _London Journal_, and again came before the courts in the important case of Weldon _v._ Dicks, as to the specific title of the novel "Trial and triumph," in which case, in 1878, Vice-Chancellor Malins enjoined quite another book under the same title, though the title was chosen in ignorance of the first book and in entire good faith. So, also, as to the title "Splendid misery," used by Miss Braddon in 1879, Sir James Bacon, in the Chancery suit of Dicks _v._ Yates, in 1881, was inclined to support the claim of C. H. Hazelwood, who had used the title in 1874, until it was shown that a forgotten novelist named Purr had used it in 1801, so that it had become, in a measure, common property. {Sidenote: "Chatterbox" cases} In the several American "Chatterbox" cases, Judge Wheeler's early decision restraining the use of this "name or word, or any name or word substantially identical therewith," in or upon any juveniles of the general character of the English book of that name, was followed by Judge Shipman, in 1887, in Estes _v._ Worthington, in the U. S. Circuit Court in New York, who also held that the word "Chatterbox" had become "a well-known trade-mark designating a well-known series," published in a distinctive style and enjoined the rival publication, simulating the external style, but of different contents. These decisions previous to 1891, resting on principles of trade-mark and not of copyright, indirectly assured a measure of international copyright. {Sidenote: Other title decisions} In 1888 the publishers of _Life_ and of "The good things of _Life_" obtained an injunction from the N. Y. Supreme Court, in Mitchell & Miller _v._ White & Allen, to restrain the publication of "The spice of life," as seemingly a continuation or counterpart of the authorized collection of extracts from that periodical. In 1904, in Gannet _v._ Rupert, Judge Coxe in the U. S. Circuit Court of Appeals in New York, on suit of the publishers of _Comfort_, restrained the use of the title _Home Comfort_ on a rival periodical "not as a case of unfair competition" but as "founded on a technical common law trade-mark"; and characterized the name as "a badge of origin and genuineness. It is as much a part of the proprietor's property as his counting room or printing press. A rival publisher has no more right to appropriate the name of its owner,"--despite the defence that _Comfort_ is "a standard English word not fanciful or manufactured." This defence had precedent in the doubt expressed by Lord Cairns in 1867 in the _Belgravia_ case, cited beyond, as to copyright protection of a single word, and in the decision of Judge Curtis in Isaacs _v._ Daly, in the N. Y. Superior Court in 1874, as to the drama "Charity," that "the use of the word 'Charity' as a designation for any work of art or literature cannot ordinarily be monopolized by any one person"; but under trade-mark law a single word associated by registry or in the public mind with a well-known product, may undoubtedly be protected as against misleading use of the word otherwise. The courts will go even farther in preventing the use of a title by another person with intent to deceive or to utilize the reputation of another work or author, as a fraud upon the public, or as unfair competition, without reference specifically to trade-mark principles. Thus Judge Newburger of the N. Y. Supreme Court, in 1910, in Eliot and Collier _v._ Jones and the Circle Publishing Company, restrained the issue under the title "Dr. Eliot's five-foot shelf" of books by the defendants of a set of books selected by and issued under the authority of President Eliot of Harvard, under arrangement with the co-plaintiff. The English rulings are to the like effect, that while a title has no copyright protection except as part of a book, the use of a title to attract purchasers on the supposition that they are getting another book previously known by that title is a fraud punishable at common law. Further citations of cases on these points are given in the chapter on infringement. {Sidenote: Projected titles} There can be no claim to protection for the title of an unpublished book, as a trade-mark or otherwise, just as there can be no copyright in a projected book. This question was elaborately discussed in the leading English case of Maxwell _v._ Hogg, in 1867, in relation to the magazine _Belgravia_, when the rule was laid down that no matter what expenditure had been made or advertising done, a title was not protectable previous to its association with a work actually before the public. Judge Shepley, in 1872, pointed out that "there is no such thing as property in a trade-mark as an abstract name," for a trade-mark simply shows that certain goods "were manufactured by a certain person." Nor can an abandoned title, in the case of a periodical, be held against a person starting a new periodical of that name, providing it does not purport to be a continuation of the old, according to a French case quoted by English authorities. {Sidenote: Projected works not copyrightable} There can be no statutory copyright in a book or other work projected and not yet prepared, despite a very general notion that under the old law a projected book could be protected by registering a title and depositing a title-page of an unwritten or unpublished book. There is nothing in copyright law corresponding to the _caveat_ in patent law. This is not in conflict with the protection of an unpublished work at common law or in equity referred to in the new American code (sec. 2) or the provision in the new law (sec. 11) permitting the registration of "a lecture or similar production or a dramatic or musical composition" or a work of art, before publication, with the deposit of a complete copy or identifying print. {Sidenote: Immoral works} There can be no copyright in an immoral book, and Lord Eldon, in Southey _v._ Sherwood, carried this doctrine so far as to deny the common law right of an author in a non-innocent manuscript, because there could be no right to hold what there was no right to sell. His opinion, resulting in the wide sale of a book which the author desired to suppress, has been severely criticised by later authorities. In the American case of Broder _v._ Zeno Mauvais Music Co., Judge Morrow, in the U. S. Circuit Court in California, in 1898, held that as a song which the plaintiff sought to protect contained indecent words, it was not entitled to protection under the copyright law. There can be no copyright in blasphemous, seditious, or libelous books; but though this rule was very strictly enforced by English judges a century ago, the later courts hesitate to rule strictly on this point, lest the rule be perverted to sectarianism or despotism. There can be no copyright in books involving fraud, as those which spuriously obtain salable value by being represented to be the work of writers who did not write them, or to contain matter which they do not contain; but this rule does not extend to books under assumed names or innocently pretending to be what they are not, as when Horace Walpole's "Castle of Otranto" was put forward as a translation from the Italian. {Sidenote: Periodicals} In addition to the inclusion of "composite works," the new American law specifically covers (sec. 5, b) "periodicals, including newspapers," and by other provisions of the law above cited, this covers "all copyrightable component parts." It is further provided (sec. 3) that "the copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act." While the American code does not specifically provide as to the separate rights of authors in articles in periodicals or composite works, which must therefore be a matter of contract, or of practice or precedent implying contract, provision for separate copyright is implied in a clause (sec. 12) requiring the deposit of only one copy instead of two in the case of "a contribution to a periodical, for which contribution special registration is requested"--although the specific article is fully protected, as indicated above, by the general copyright. {Sidenote: Definition of periodicals} The new Rules and Regulations of the Copyright Office define periodicals as follows: "(6) This term includes newspapers, magazines, reviews, and serial publications appearing oftener than once a year; bulletins or proceedings of societies, etc., which appear regularly at intervals of less than a year; and, generally, periodical publications which would be registered as second class matter at the post office." {Sidenote: Periodicals under manufacturing clause} Periodicals, as well as books, are subject to the manufacturing clause (sec. 15), but affidavit is not required, and the importation of "a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor," is not prohibited (sec. 31, b), "unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization"--but these and other conditions are treated in later chapters. {Sidenote: Periodicals copyrightable by numbers} The law provides (sec. 19) in the case of a periodical, that the notice of copyright may be "either upon the title-page or upon the first page of text of each separate number or under the title heading," "provided that one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice." This implies that each issue of a periodical must be separately copyrighted as though a separate work, although the title may be registered as a trade-mark and possibly protected in this way. A daily newspaper may thus be copyrighted day by day at a cost of $365 per year, so as to protect all its original material of substantial literary value. This was done in fact under the American law previous to 1909, though periodicals were not specifically mentioned; a daily price-list of the New York Cotton Exchange was so entered day by day, but the question of maintaining such a copyright under the old law seems never to have been tested in the courts, and New York dailies copyrighted their Sunday cable letters separately. {Sidenote: News} In respect to news, there is no provision in the new code. A bill to protect news for twenty-four hours was at one time before Congress, but was never passed. There is, therefore, no copyright protection for news as such, but the general copyright of the newspaper or a special copyright may protect the form of a dispatch, letter, or article containing news. Thus the New York _Herald_ copyrighted without question Dr. Cook's Arctic dispatches, and the question as to the copyright by the New York _Times_ of Commander Peary's dispatches describing his dash for the pole hinged solely on the question of ownership or authority to copyright, as set forth in a later chapter. But any such copyright could not prevent publication by other newspapers of the news that Cook and Peary claimed to have reached the North Pole, at stated dates and under stated circumstances, though their own form of statement of the facts could not lawfully be copied except within "fair use." In 1892 Justice North in the English Court of Chancery, in Walter _v._ Steinkopff, said that "although it is sometimes said that there is no copyright in news, there could be copyright in the particular form of language or mode of expression by which information is conveyed." The English courts went further in two actions brought by the Exchange Telegraph Co., 1895-97, in the first of which Gregory & Co. were restrained from using information furnished to subscribers first as unpublished matter before publication, second after publication because of copyright on the publication, and third as "unfair competition." In 1902, in Nat. Tel. News Co. _v._ West. Union Tel. Co., the U. S. Circuit Court of Appeals protected news on ticker tapes, and in 1910, in Press Assoc. _v._ Reporting Agency, the English Chancery Division protected election reports on the last-named ground alone. {Sidenote: British Periodicals} The statutes of Great Britain have hitherto provided that a work published in parts or a periodical may be fully protected by copyright entry of the first part; the new code covers newspapers and periodicals generally as collective works. When the London _Times'_ memoir of Beaconsfield was reprinted as a penny pamphlet, the _Times_ brought suit as a matter of common law right, but the judge held that a newspaper was copyrightable under the statute, and therefore that a common law suit could not hold. {Sidenote: Oral works} The American law now specifically protects oral works by including in the classification (sec. 5, c) "lectures, sermons, addresses, prepared for oral delivery," and by assuring (sec. 1, c) exclusive right "to deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production." The phrase "similar production" and the spirit of the statute suggest that, though the manuscript of a book cannot be copyrighted prior to publication, a "reading" from an unpublished book, as a chapter, scene, or poem, might be registered and protected for oral delivery before publication; and the Copyright Office will make such registry on such application. The former law made no specific provision, but the courts seemed disposed to protect a lecturer on the common law ground that the lecture read is not published by reading, and can be controlled as a manuscript. In the application of common law doctrine to extemporaneous or other oral deliveries, the question of implied contract between the speaker and his auditors enters, and the trend of court decisions is that a hearer who has purchased or obtained a ticket, may make notes for his own use but may not publish them for profit. In the leading English case of Abernethy _v._ Hutchinson, in 1825, Lord Chancellor Eldon protected Dr. Abernethy against the publication of notes of unwritten medical lectures, evidently obtained through a student hearer. {Sidenote: Newspaper reports} Newspapers have, however, in practice freely republished lectures, and probably even under the present law the courts would permit, unless report was specifically and entirely forbidden by the speaker, a reasonable report but not a _verbatim_ reproduction of the address, as within the bounds of "fair use." The publication of an unauthorized report by one newspaper would not justify another newspaper in copying the report without consent of the copyright proprietor on the ground of publication, for such unauthorized publication cannot deprive the copyright proprietor of his rights. If a speaker delivers an address, extemporaneously or even from written manuscript without registering the address as an unpublished work or taking other precautions, it is probable that the courts would protect his rights at common law; but it would be hazardous not to take advantage of the statute. {Sidenote: Lectures in England} Lectures have hitherto been protected in England in case the lecturer gave notice of reservation in writing two days in advance to two justices at the place of reading, but this complicated proviso caused speakers to rely rather on the common law doctrine that oral delivery is not publication. The new British code specifically provides that delivery is not publication, but permits newspaper report unless the speaker prohibits such report by notice posted near the main entrance and except during public worship near the speaker's position; "newspaper summary" within "fair dealing" is expressly permitted. {Sidenote: Letters} Letters are not specified either in English or American statutes under copyright law. A private letter has been held an unpublished manuscript, the right to publish or copyright remaining with the author while living, though the material letter, its paper and ink, has passed to the receiver. Thus in 1741 Pope prevented Curl, an English bookseller, from republishing his letters to Swift, and in 1774, in Thompson _v._ Stanhope, Lord Chesterfield prevented his son's widow from publishing letters which he had made a gift to her. Letters, however, are copyrightable by themselves or as part of a book; and the writer may protect a letter against unauthorized publication by himself publishing and copyrighting it. The U. S. Supreme Court in 1841, in Folsom _v._ Marsh, enjoined the republication of letters of Washington, published by authority in Sparks's "Life of Washington," through Justice Story, who said: "The author of any letter or letters, and his representatives, whether they are literary letters or letters of business, possess the sole and exclusive copyright therein; and no person, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same." But as manuscripts posthumously published, the copyright in letters may belong to the receiver or his assigns; and in Macmillan _v._ Dent, in 1906, the English Court of Appeal held, where the owners of letters of Charles Lamb had sold the copyright to certain publishers, these could not be republished by another who had later bought the material letters even under the authorization of the representative of Lamb's heirs. In Philip _v._ Pennell, Whistler's executrix was denied an injunction to prevent the use of biographical information obtained from the receivers of letters. But _obiter dicta_ indicated that the courts may grant to the writer's representatives an injunction against publication or misuse. The laws of some countries specifically permit the publication of letters in the interest of justice. Unless the letter is of the nature of privileged correspondence, the courts can probably require the production of a letter in court, and in fact do subpoena telegraph companies to produce the originals or transmittal records of telegrams in court, and thus make them _quasi_ public property. The sale of a manuscript letter cannot authorize a vendee to publish it without consent of the writer, and the receiver of a letter is perhaps bound to keep a letter private or destroy it, if so required by the writer, but this is a right difficult of enforcement if not doubtful _in esse_. The receiver of a letter has probably a right to destroy it at his will, unless the writer has required its return to him. The subject-matter of copyright in respect to musical and dramatic compositions and works of art, is treated specifically in later chapters on dramatic and musical copyright and on artistic copyright. {Sidenote: Designs patentable} Designs for use in manufacture are, in the United States, subjects of patent and not copyright. It is provided by the act of May 9, 1902, that "any new, original, and ornamental design for an article of manufacture" may be patented, and this classification inferentially excludes such designs from copyright. This generalized description of design patents replaced, at the suggestion of the Commissioner of Patents, the specific descriptions in the design patents act of December 1, 1873, and adopted instead the more comprehensive phraseology of the act of February 4, 1887, for the punishment of infringement of design patents. In like manner the new British code excludes designs registrable under the patents and designs act, 1907, "except designs which, though capable of being so registered, are not used or intended to be used as models or patterns to be multiplied by any industrial process." {Sidenote: Foreign practice} "The foreign copyright legislation," as is stated in Copyright Office Bulletin, No. 9 of 1905, "instead of specifically naming the productions which are subject-matter of copyright, generally uses some inclusive expression, such as 'all writings,' 'every kind of literary work,' 'works of literature,' 'literary and scientific works,' 'every production of literature and science,' and even such inclusive terms as 'every work of the intellect.'" Spain adds the inclusive phrase "produced or published by ... any kind of impression or reproduction known now or subsequently invented." Great Britain, most of her colonies, and some other countries have set forth specific categories. But the new British measure uses the general phrase "every original literary dramatic musical and artistic work"--this replacing the several categories in the several previous laws. In a few countries manuscripts, personal letters and telegraphic messages, mostly in newspaper use, and in Ecuador, titles of periodicals, are specifically scheduled as subjects of copyright. {Sidenote: International definition} The Berlin convention uses the general expression "literary and artistic works," which it defines as including "all productions in the literary, scientific or artistic domain, whatever the mode or form of reproduction," then specifying in detail categories of literary, dramatic, musical and other artistic works, as set forth in the chapter on international conventions and arrangements. VII OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT {Sidenote: Persons named} The American code of 1909 names (sec. 8) "the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns" as the persons in whom the copyright may lodge. It also provides specifically (sec. 62) that "the word 'author' shall include an employer in the case of works made for hire." The American law formerly named "the author, inventor, designer, or proprietor of any work, and the executors, administrators, or assigns of any such person" as the persons in whom copyright may lodge. The Librarian of Congress accordingly issued copyright certificates for books as to an "author" or "proprietor" only, assuming usually that an editor was the "author" and a publisher the "proprietor," and never going behind the claim set forth in the application. Under the new law the applicant is designated only as the "claimant," and no such distinction is made, except that the Copyright Office has an index card for proprietor, as well as author, when another than the author makes the application. {Sidenote: The author primarily} The author is the person primarily entitled to copyright. He may sell or otherwise transfer his production before it is copyrighted, in which case the new proprietor obtains all the common law rights of property, both in the manuscript and its publication, including the right to copyright. This common law right, including the right to copyright, may extend, Drone argues, to the finder of an unpublished manuscript, provided no one successfully disputes his ownership of his find, if the manuscript be copyrightable; but there are no decisions on this point. If a copyright is taken out by another person (as the publisher of the book), it is done impliedly in trust for the author, as is a usual custom among American publishers. The proprietor is defined to mean "the representative of an artist or author who might himself obtain copyright." {Sidenote: Claimant's right to register} The Register of Copyrights is not a _quasi_ judicial officer, as is the Commissioner of Patents, and he does not undertake to make decision as to the right of the claimant, this question being one for determination by the courts in specific instances. In cases of doubt, however, he may in practice, for the sake of convenience and of clearness of record, call the attention of the claimant to such doubt and invite explanation, but he probably would not be justified in refusing to register the application for a claimant who asserted his right to such entry. A former Librarian of Congress, then directly the copyright officer, used to say that he would enter copyright for any one on the Bible in King James' version if formal application were made to him, thus emphasizing the statement that he had no judicial authority. In the case of Everson _v._ John Russell Young, then Librarian of Congress, Judge Cole in 1889, while refusing the mandamus asked for, asserted incidentally that "the Librarian had no discretion." Where a second application is made for the entry of the same copyrightable work by a second party, the copyright officer would not decline to register the second application, if the claimant insisted on his right, after the fact of the first registration had been brought to the second claimant's notice, and the question of ownership would have to be brought before the courts. It is only in the case of works evidently not copyrightable, or in the case of claimants not entitled to apply for registration, as a citizen of a foreign country with which the United States has no copyright relations, or in other cases evidently beyond the scope of the law, that the copyright officer would exercise discretion and decline to make the record. {Sidenote: Employer as author} The provision of the new code specifically including as author (sec. 62) "an employer in the case of works made for hire" is new in American law, but it adopts previous decisions of the courts. It does not, however, adjudicate the application or specific definition of this phrase, which remains in large measure a question of contract. Earlier copyright decisions were to the effect that the authorship may inhere in the employer, if the design of the work is so far his as to make him the virtual creator and the actual writer a deputy merely; but that he is not an author who "merely suggests the subject, and has no share in the design or execution of the work." But under the new law, the case turns upon the meaning of "employment," which would be clear in the case of writers paid wages or salary for doing the work on an encyclopædia, but might not be clear in the case of an author paid in advance or on account by a publisher, though working on a general plan suggested or invented by the publisher. In such cases the proprietary right, including the right to secure copyright, depends upon the contract, implied or express, and the courts will decide this according to the law of contracts. In Boucicault _v._ Fox, in 1862, Judge Shipman, in the U. S. Circuit Court, held, as to the play "The octoroon," that "a man's intellectual productions are peculiarly his own, and he will not be deemed to have parted with his right and transferred it to his employer until a valid agreement to that effect is adduced." It is safer in all cases, for the protection of the employer and for the sake of clear relations with the actual person who does the work, that there should be a definite contract. When a salaried law reporter had been employed by the State of New York under a law that the copyright of the Reports should vest in the State, Judge Nelson for the Circuit Court of Appeals, in 1852, in Little _v._ Gould, held as valid an entry by the Secretary of State, "in trust for the State of New York," though no formal assignment had been made. {Sidenote: Implied ownership} In the absence of specific contract, or even in some cases of specific contract, many cross-questions may arise which the law does not and cannot determine in advance. In the case of a book "with illustrations by John Leech," where Leech retained the copyright of the designs, though the publishers owned the wood on which he had drawn them, an English court held to a distinction between the copyright and the right to the material, and directed the publishers to waive their lesser right and surrender the blocks, in view of the circumstances of the contract. {Sidenote: Protection outside of copyright} Most of the cases arising as to ownership are, in fact, issues outside of copyright law, as when in 1883 in Clemens _v._ Belford, in the U. S. Circuit Court in Illinois, Samuel L. Clemens vainly sought to restrain the use of his pen-name, "Mark Twain," in a collection of his uncopyrighted papers, Judge Blodgett holding that whoever has a right to publish has a right to state authorship, though an author can restrain the publication over his name of things he did not write. The same doctrine was upheld in 1910 in Ellis _v._ Hurst, where a publisher had printed with the real name of the author some non-copyright books which Edward S. Ellis had put forth under a pseudonym. Judge Greenbaum, in the N. Y. Supreme Court, held that the law insuring right of privacy does not prevent the use of a writer's name on a book undoubtedly of his writing. In 1908 Mr. Clemens sought in vain to prevent the use by others of his pseudonym, "Mark Twain," by incorporating a company with this name, planning thus to secure the exclusive use of the name for this corporation and practically obtaining a continuing trade-mark protection for it under this device. But that an author may protect a _nom de plume_ of settled use independent of copyright or trade-mark was held in Landa v. Greenberg in 1908, in Chancery Division. {Sidenote: Work in cyclopædias} When, as in the case of a cyclopædia, many persons are employed at the offices of an employer, using his materials and facilities, and especially if on salary, the courts would undoubtedly uphold his full proprietorship in their work. Where outside persons contribute special articles, the presumption would probably be that the ownership of the copyright, for that special publication, vested in the employer, but that neither he, without the author's consent, nor the author, without his consent, could publish the article in other competing shape. In Bullen _v._ Aflalo, the House of Lords, in 1903, reversing the lower courts, protected the proprietors of an encyclopædia who had purchased articles from authors, against reprints of the material elsewhere, by the authors themselves, on the ground "that the right to obtain copyright was intended to pass to the publisher, otherwise he would get nothing from his bargain; and unless the publisher and proprietor of the encyclopædia stood in the shoes of the actual writer and was the proprietor of the copyright, he would have nothing for his money, because the articles might be published by others and he would have no remedy, not having the copyright." {Sidenote: Association of author's name} The right of a contributor to have his name associated with his work in the case of an encyclopædia, at issue in Basil Jones _v._ American Law Book Co., where the individual writer's name was replaced by that of a distinguished jurist, though upheld in 1905 by Judge McCall in the N. Y. Supreme Court, was denied in the reversal of this decision in 1908 by the Appellate Division through Judge Houghton. {Sidenote: Added material and alteration} Where a publisher had affixed additional material to a copyrighted book, the author was denied relief in Holloway _v._ Bradley, in 1886, by Judge Butler in the U. S. Circuit Court; but this decision would not hold where the added material was so placed as to give the false impression that it was written by the author of the copyrighted work. Thus in 1910, in Gilbert _v._ Workman, Sir W. S. Gilbert obtained an order in the Chancery Division through Justice Neville against the interpolation of a song into his copyrighted opera without his consent. {Sidenote: Separate registration of contributions} This would hold true to like extent in respect to alterations, which might be permissible when in the nature of proof-reading correction or editorial revision, but contrary to equity when they pervert, obscure, or otherwise misrepresent the author. In respect to composite works, the new American code indicates (sec. 23) that there may be separate registration of contributions, inferentially in the person of "an individual author," as distinguished from the general entry for copyright of the composite work. This doubtless refers to the practice, for instance, of the entry in his own name of his specific work, by a novelist or other contributor to a periodical, in addition to the general entry of the number of the periodical of which it is a copyrightable component part. The only direct effect is to give to the specific author _prima facie_ evidence of ownership in his specific contribution, as distinguished from the right of the proprietor of the general copyright, and in some respects the clause is ambiguous and perhaps misleading, making it the more desirable that the relation of the individual author should be defined by contract. It is not really in conflict, however, with the principle that there cannot be two copyrights in the same work, as the evident distinction implied is that the proprietor of the general copyright holds the right for publication in the periodical and that the specific author reserves the right of publication in other form, which distinction is sufficiently provided for as a matter of contract and does not depend upon specific entry of the contribution. The wisest course may be for the proprietor of the periodical or other composite work to reassign his interest in the specific contribution, as was done by the proprietors of the _Smart Set_ as adjudicated in the case of Dam _v._ Kirke La Shelle Co., cited in the chapter on dramatic and musical copyright, and thus remove possible doubt as to ownership. {Sidenote: Anonymous works} There is no specific reference in the new American code as to anonymous or pseudonymous works, except as to duration of copyright. In practice, the Copyright Office assumes that the applicant for the entry of an anonymous or pseudonymous work is the qualified and legal author or proprietor, and any disputed question of fact would ultimately be decided by the courts. {Sidenote: Joint authorship} There may be joint authorship in a work of common design, in which case the joint authors will become owners in common of the undivided property; but mere alterations or work on specific parts could not justify claim to more than such alterations or parts. The copyright would naturally be entered in both names, but as one copyright; it was held in 1902, in Mifflin _v._ Dutton, by the U. S. Supreme Court, that "there cannot be duplicate copyrights of the same book in different names." If one of the joint authors and not the other should apply for entry, the Copyright Office would in practice probably record the copyright claim on the presumption that the author was acting in the common interest; but if two joint authors applied simultaneously and severally, the question of ownership would have to be settled by the courts. {Sidenote: Corporate bodies} A corporate body, even though not incorporated under statute, is considered an author in the case of its own proceedings or similar publications, and in 1903 Justice Holmes rendered the decision of the U. S. Supreme Court in the case of Bleistein _v._ Donaldson Lith. Co., though the court was divided on the subject, that a copyright taken in the name of the Courier Lithographing Company, which was only the trade name of the complainant, was valid. {Sidenote: Posthumous works} In the case of posthumous works, the person entitled to copyright would be the executor, administrator, or the heirs of the author, and the owner of an unpublished manuscript could probably enter and maintain copyright in the absence of other legal claimant. {Sidenote: The Peary cases} {Sidenote: Opposing decisions} The first important case under the new American code, in September, 1909, dealt with the question who may obtain copyright. On the report of the discovery of the North Pole, the New York _Herald_ procured from Dr. Cook his account of his journey and copyrighted it on its publication in the _Herald_,--which copyright does not seem to have been questioned. Immediately thereafter came Commander Peary's account of his polar journey, for which the New York _Times_ had contracted with him before his departure in the previous year. The Peary report was published simultaneously by the New York _Times_ and the London _Times_, but the difference of five hours enabled the correspondents of the New York _Sun_ and _World_ to cable the report to their respective papers in time for publication at the same hour in America as in the New York _Times_. Anticipating this course, the New York _Times_ had taken the precaution to publish the report in pamphlet or "book" form some hours before newspaper publication, and to copyright this as a book. When an injunction was asked in the U. S. Circuit Court from Judge Hand, that judge granted the injunction, but on the required production of the contract in court, dissolved his injunction on the ground that the contract between Peary and the New York _Times_ gave to the _Times_ only the right to news publication and specifically reserved to Peary magazine and book rights. He inferred thus that the _Times_ had no right to copyright the news report as a book, and was not the agent of the author for that purpose. To the contrary, Judge Grosscup in Chicago, in an exactly similar case against the Chicago _Inter-Ocean_ and other Chicago papers, and with the contract before him, maintained the copyright by the _Times_. The two contradictory decisions have not so far been adjudicated in the higher courts. It will be observed that the question is not strictly one of copyright, but of contract, and that it is not denied that the news report, in the literary form given it by the author, was a proper subject of copyright, though the news of the discovery of the North Pole might not be copyrightable. Judge Hand perhaps erred in assuming that there could be separate copyright for news, magazine, or book publication, overlooking the fact that Peary had conferred on the _Times_ authority to protect the report sent to it by cable, while reserving to himself rights in magazine or book publication of his material, whether in the same or different form. {Sidenote: Renewal rights} In the renewal of copyright, the new American code follows the previous law in differentiating the persons entitled to renew the copyright. It provides (sec. 23) that in the case of a posthumous composite or corporate work originally copyrighted by the proprietor thereof or a work made for hire, the proprietor of such copyright shall be entitled to a renewal; but in other cases, including a separately registered contribution by an individual to a composite work, the author or the widow, widower or children, or, if such be not living, the author's executors or next of kin shall be entitled to a renewal. This means that there can be no renewal by an assignee proprietor, and that in the absence of natural heirs of a personal author, no person is entitled to a renewal of his copyright. The new law has been specifically construed to this effect by the Attorney-General in his opinion of February 3, 1910. It should be noted that the word "administrators," included in the provision as to original application (sec. 8), is omitted from the provision as to renewal (sec. 23) including renewal of existing copyrights (sec. 24), indicating that while an author may make bequest of copyright for the renewal term, which right may then be claimed by his executor, the right to renew lapses when he makes no will and has no next of kin to inherit the right of renewal. {Sidenote: Assignments} Specific provision as to the method and record of the transfer of copyrights by assignments are contained in the following provisions of the code of 1909: "(Sec. 42.) That copyright secured under this or previous Acts of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or may be bequeathed by will. "(Sec. 43.) That every assignment of copyright executed in a foreign country shall be acknowledged by the assignor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or perform notarial acts. The certificate of such acknowledgment under the hand and official seal of such consular officer or secretary of legation shall be _prima facie_ evidence of the execution of the instrument. {Sidenote: Assignment record} "(Sec. 44.) That every assignment of copyright shall be recorded in the copyright office within three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, whose assignment has been duly recorded. "(Sec. 45.) That the register of copyrights shall, upon payment of the prescribed fee, record such assignment, and shall return it to the sender with a certificate of record attached under seal of the copyright office, and upon the payment of the fee prescribed by this Act he shall furnish to any person requesting the same a certified copy thereof under the said seal. {Sidenote: Substitution of name} "(Sec. 46). That when an assignment of the copyright in a specified book or other work has been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act." It should be noted that this last provision, authorizing the substitution of a name, is applicable only to the general copyright in a work, and not to a divided right; otherwise there would seem to be more than one copyright in the same work. The Copyright Office will, however, record assignments of specific or divided rights without reference to this power of substitution. Further assignment from one assignee to another is permissible to any extent, and in cases of repeated assignment of a general copyright there may be further substitution of names. {Sidenote: Witnesses} There is no specific requirement as to the witnessing of assignments, which would therefore follow the usual principles of law. This was, however, an important question in England, and under the early English statute the courts held that assignments must be in writing, attested by two witnesses; the later statute of Victoria modified the language, and the new English code requires assignment in writing signed by the owner or his authorized agent, without specifying witnesses. But assignment of common law rights (as in an unpublished manuscript) may doubtless be by word of mouth. {Sidenote: "Outrights" and renewal} Where an author sells his entire rights "outright," he cannot transfer the right to take out renewal, but he may directly or by inference bind himself to apply for such renewal in the interest of the new proprietor. Under such a contract, this proprietor could probably require him by equity proceedings to take this step. Such a contract, however, would not bar the author from his right to renewal under the copyright law and through the Copyright Office, although it is possible that the courts might enjoin an author from renewal or assignment of a renewed copyright in the interest of another than the original assignee. It should be noted that in the case of composite, corporate or like impersonal works, copyrighted under the new code, renewal is not restricted to the _original_ proprietor, though by analogy this should be the practice; but that in the case of renewal of copyrights existing before July 1, 1909, and in extension of the present renewal terms, the use of the phrase "such proprietor," referring back to "the original proprietor," does make such limitation. {Sidenote: Proof of proprietorship} Where the copyright proprietor of record is not the author, the courts may require him to prove his rights, in default of which the copyright certificate will be adjudged null and void, as was done in 1909 by the Circuit Court of Appeals both in Bosselman _v._ Richardson, where a son copyrighted paintings by his father and failed to prove that they had not before been published, and in Saake _v._ Lederer, where the court canceled the copyright of the play "Old Heidelberg" because Lederer had obtained from the German author only a license to perform and not a right to copyright. {Sidenote: Foreign citizens} As to copyright by others than citizens of the country, the law of 1909 provides (sec. 8) "that the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only: "(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or "(b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act, or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto. "The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require." {Sidenote: Earlier provisions} The Revised Statutes formerly extended copyright to "a citizen of the United States or _resident therein_ or his widow or children," and the act of 1891 provided for a _quasi_ international copyright on a basis similar to that in subsection (b), cited above, of the law of 1909, _i. e._ on a basis of reciprocity. The new American code practically adopts the features both of the Revised Statutes and the act of 1891, though with verbal and substantial differences. The word "domiciled" is new in the law and has yet to be construed in a copyright case, but it is presumably the equivalent of "resident." The new Rules and Regulations of the Copyright Office use the phrase "(2) a resident alien domiciled in the United States at the time of the first publication of his work." {Sidenote: Residence} A resident, under the American decisions, is a person who intends to reside permanently in this country. It is decided by the intention of the resident. A person who is residing here without intention of permanence probably cannot maintain copyright under this clause. For English copyright, on the contrary, a person temporarily residing in His Majesty's dominions has been considered a resident. "The United States" would doubtless be construed to include territories and dependencies, as specific jurisdiction is given (sec. 34) to stated courts in Alaska, Hawaii, the Philippine Islands and Porto Rico, in addition to the general decisions of the U. S. Supreme Court. Under the statute of Anne the English courts differed persistently on the question whether a non-resident foreigner could obtain British copyright by first publication within the British dominions, until in 1854, in the ultimate case of Jefferys _v._ Boosey, the House of Lords, after consulting the judges, of whom six denied and four sustained the contention, decided unanimously that a non-resident foreigner could not acquire copyright by first publication. Under the law of 1842, the question was again raised, in view of the variation of the language from that in the statute of Anne; in 1868, in the case of Routledge _v._ Low, in which an American author claimed copyright for his work first published in London while he resided for a few days in Canada, the House of Lords held that a foreigner might thus obtain copyright by temporary residence within the British dominions and indicated, but did not decide, that a foreigner could obtain copyright by first publication, even if not temporarily resident within the British dominions. After the passage of the "international copyright amendment" in 1891, the American law authorities consulted with the law officers of the Crown, who rendered a decision that foreign authors were entitled to British copyright on the sole condition of first publication, and on this decision the President based his proclamation of reciprocal relations with Great Britain. The new British measure retains first publication within the included parts of the Empire as the essential condition, except in unpublished works, unless otherwise provided under international copyright, though the Crown may withdraw this privilege from foreigners whose countries do not assure reciprocity. {Sidenote: Intending citizens} The provision of subsection (a) is chiefly useful, it would seem, to protect intending citizens who have applied for naturalization papers and incidentally renounced their previous allegiance to another power and thus put themselves beyond the pale of the international conventions. {Sidenote: Time of first publication} "First publication" is not limited in terms to the United States, and the "alien author or proprietor," provided he makes application under this clause and is not a citizen of a country with which the United States has a copyright convention, must therefore be domiciled here, it would seem, at the time of first publication, in whatever country that may be. {Sidenote: Non-qualified authors cannot transfer} It has twice been decided, both prior to and since the "international copyright amendment" of 1891, that a foreign author not qualified to secure a copyright cannot indirectly obtain one by assignment to an American or other proprietor. In 1890 J. M. Barrie assigned to J. W. Lovell, and he to the U. S. Book Company, his American rights in "The little minister," and after the act of 1891 the latter endeavored to restrain a dramatization of the story. Judge Jenkins held with the lower court that the foreign author could transfer only, prior to the act, the right to publish from advance sheets and not the right to copyright. In the case of Bong _v._ Campbell Art Co., in which it was sought to protect under the act of 1891 a work by a Peruvian painter, Hernandez, whose country had no international relations with the United States, through transfer to a German proprietor, whose country had reciprocal relations, it was held in 1909 by the U. S. Supreme Court, through Justice McKenna, that an author who is a citizen of a country with which the United States has no copyright relations cannot indirectly obtain American copyright by making a citizen of a country with which the United States has copyright relations the proprietor of his work. A proprietor has been construed by the courts to mean merely an assignee of a qualified author. It is evident, therefore, despite the ambiguous phrasing of the statute, that an assignee proprietor, though domiciled in the United States at the time of first publication of a work, could not obtain copyright unless the author were so domiciled, for the contrary ruling would nullify the general purport of the law by permitting an assignee to acquire rights which the non-qualified author could not secure. The evident construction of the word "proprietor" in this clause is as proprietor of an impersonal work and not an assignee proprietor. The Rules and Regulations of the Copyright Office, construing the code of 1909, say specifically (2): "If the author of the work should be a person who could not himself claim the benefit of the copyright act, the proprietor cannot claim it." {Sidenote: Foreign ownership} But it seems that a foreigner may enter copyright in the work of a citizen or resident author--it being foreign authorship, not ownership, which the law refuses to protect, though this point has not been judicially determined. Under the provision (sec. 62) of the new American code giving copyright to an employer as author "in the case of works made for hire," it would seem that a person entitled to make copyright entry might, as an employer, obtain copyright on the work of an alien employee not domiciled here and not otherwise entitled to enter copyright; but it is probable that this construction would not extend to a separate or separable work, as this would be contrary to the principles adjudicated as above cited. The complicated question of the ownership and the right to secure copyright in translations from foreign works or into foreign languages, under this international copyright provision, is covered under translation in the preceding chapter on subject-matter of copyright. {Sidenote: Proclaimed countries} Under the provisions of the international copyright clause of 1891 Presidential proclamations have designated as countries with which the United States has copyright relations (July 1, 1891) Belgium, France, Great Britain and her possessions, Switzerland; (April 15, 1892) Germany; (October 31, 1892) Italy; (May 8, 1893) Denmark; (July 20, 1893) Portugal; (July 10, 1895) Spain; (February 27, 1896) Mexico; (May 25, 1896) Chile; (October 19, 1899) Costa Rica; (November 20, 1899) Holland and possessions; (November 17, 1903) Cuba; (January 13, 1904) China--this treaty of October 8, 1903, protecting for ten years books, maps, prints or engravings "especially prepared for the use and education of the Chinese people," or "translation into Chinese of any book," but leaving to Chinese subjects liberty to make "original translations into Chinese"; (July 1, 1905) Norway; (May 17, 1906) Japan--this treaty of November 10, 1905, also excepting translations, and (August 11, 1908) additionally protecting Japanese relations in China and Korea; (September 20, 1907) Austria, not including Hungary; and (April 9, 1908) under the Pan American convention signed in Mexico City, January 27, 1902, effective from July 1, 1908, Guatemala, Salvador, Costa Rica, Honduras and Nicaragua. {Sidenote: Under act of 1909} Under the provisions of the act of 1909, the President of the United States issued a general proclamation, dated April 9, 1910, certifying anew to the existence of reciprocal relations with the above-mentioned countries, under the arrangements of the new act, as from its effective date July 1, 1909. This accepted such relations as continuous and uninterrupted, without the necessity of new treaties, with the effect that international copyrights before July 1, 1909, were under the arrangements of the act of 1891 and from and after that date under the arrangements of the code of 1909. Luxemburg was added by proclamation of June 29, 1910, and Sweden by that of May 26, 1911. Proclamations of December 8, 1910, as to Germany, and June 14, 1911, as to Belgium, Luxemburg and Norway, proclaimed reciprocal relations as to mechanical reproductions. {Sidenote: Buenos Aires convention} The ratification of the Buenos Aires convention by the U. S. Senate, February 16, 1911, has the effect of authorizing the President to proclaim reciprocal relations with other countries which are parties to that treaty, as each ratifies the convention. {Sidenote: The new British code} The new British measure specifies that "the author of a work shall be the first owner of the copyright," except where an engraving, photograph, or portrait is ordered for valuable consideration or where work is done in the course of employment. The owner may assign the copyright in writing, "either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by license"; in case of partial assignment, the original owner and the assignee become respectively the owners of the residual and assigned portions of the copyright. But any assignment, except by will, becomes null and void twenty-five years after the death of the author when the entire rights revert to his heirs. {Sidenote: Foreign practice} In general the statutes of most of the copyright countries designate "authors" and their "assigns and heirs" as the persons who may obtain copyright. The Australian law of 1905 defines "author" to include "the personal representatives of an author." In certain countries the laws specifically mention as persons who may secure copyright "joint authors," "proprietors" in some countries and "publishers" in other countries of anonymous and pseudonymous, posthumous or unpublished works, periodicals and composite works, "corporate bodies," "translators," "editors, compilers or adapters" and "persons who give a commission for a portrait or photograph." VIII DURATION OF COPYRIGHT: TERM AND RENEWAL {Sidenote: Historic precedent} The duration of copyright was in the early printers' privileges for a short term, as for seven years, except in France, where copyrights were in perpetuity until the act of the National Assembly; in modern times the copyright term has been lengthened until a term extending through and beyond the life of the author has been adopted by thirty-seven countries, or more than half of those which have copyright laws, of which four assure perpetual copyright. The Constitution imposes only one limitation on the comprehensive rights of authors, in the provision that protection shall be "for limited times" only. This provision has made the discussion of perpetual copyright purely academic in this country. The new American code adopts the double term of twenty-eight and twenty-eight years, making fifty-six years in all, without reference to the life of the author. {Sidenote: Previous American practice} The American law previous to 1909 provided for a uniform term of twenty-eight years, dating from the time of recording the title, with a renewal of fourteen years, securable only by the author, or, if he be dead at the expiration of the term, by his widow or children. No other heirs or persons could renew. The new code differs in making the renewal period a second twenty-eight years and extending the right of renewal to the executors or next of kin and to the proprietors of composite or other impersonal works; but it still denies renewal to assignee proprietors of personal works. {Sidenote: Term in code of 1909} The American code of 1909 provides (sec. 23) "that the copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under an assumed name," and makes provision also in the cases specified for renewal for a second period of twenty-eight years, provided that renewal application is registered in the Copyright Office "within one year prior to the expiration of the original term of copyright." {Sidenote: Renewal} The provisions as to renewal are in full as follows (sec. 23): "_Provided_, That in the case of any posthumous work or of any periodical, cyclopædic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: _And provided further_, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopædic or other composite work when such contribution has been separately registered, the author of such work, if still living, or the widow, widower or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: _And provided further_, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication." {Sidenote: Extension of subsisting copyrights} The extension of copyrights subsisting July 1, 1909, is provided for as follows (sec. 24): "That the copyright subsisting in any work at the time when this Act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by the author of such work if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal period: _Provided, however_, That if the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor shall be entitled to the privilege of renewal and extension granted under this section: _Provided_, That application for such renewal and extension shall be made to the copyright office and duly registered therein within one year prior to the expiration of the existing term." {Sidenote: Assignee of unpublished manuscripts} In holding with the Attorney-General that an assignee cannot obtain renewal, Judge Brown in the U. S. Circuit Court in Rhode Island, in White Smith _v._ Goff, in 1910, raised but did not decide the "difficult" question whether, if an author sells his unpublished manuscript with right to publish and copyright, the new owner as the original copyright proprietor may claim renewal, or whether the author might reclaim the right. {Sidenote: Extension of subsisting renewals} Under the provisions of the renewal clauses (sec. 24), not only may the original copyright term of a subsisting copyright be renewed for the longer term of twenty-eight years instead of fourteen years, but a subsisting copyright renewal may be extended from the added fourteen years to the full renewal term of twenty-eight years, and a separate application form for this latter class of cases is provided by the Copyright Office. {Sidenote: Publishers' equities} In the copyright conferences, it was pointed out by publishers that the right of the author to renewal, and the implied denial of that right to an assignee proprietor, placed at serious disadvantage a publisher who had made investment in plates of an author's works, and would be deprived of the use of his investment at the end of the original term in case the author preferred to make arrangements with another publisher for the renewal term. The Congressional Committee failed, however, to provide a remedy for this through the proposed Monroe-Smith amendment, requiring that in such case author and publisher should unite in the application for renewal. No contract on the part of an author can give a publisher the right to claim copyright renewal under the new code, although a contract to make claim for the renewal period and transfer the copyright for the renewal period to the publisher, might be enforced by the courts through a writ requiring the author to enter such claim and assign the renewed copyright in accordance with the contract. When a copyrighted work is sold "outright," it therefore does not include renewal of the copyright, and unless the author registers his renewal claim, the right to renewal lapses. {Sidenote: Estoppel of renewal} Where an author has sold "outright" all his right, title and interest in his work, it is possible that this may estop him from application for renewal or invalidate a renewal, but this question must be decided by the courts when a case arises. It is important that any contract between author and publisher should be clear and specific on this vexed question of rights for the renewal term. No provision is made for notification of renewal in the copyright notice, and therefore, after the expiration of the original term, information must be sought from the Copyright Office as to whether there has been renewal extension of the term. As it would be hazardous to omit the original copyright notice or to replace it by one giving the date of renewal, which might be construed to involve claim of a longer term and thus defeat itself, it may prove the wiser course to add to the official original notice, the unofficial notice "Copyright renewed, 19__." {Sidenote: Life term and beyond} The international copyright convention, as modified at the Berlin conference of 1908, adopted the term of life and fifty years,--previously in force in France and fourteen other countries,--subject to adoption by domestic legislation. A term of life and a specified number of years after the death of the author, preferably fifty years for personal works, and a term of fifty years for impersonal works, was advocated by the American Copyright leagues and other friends of copyright and was in the early drafts of the new copyright code. It was pointed out that Emerson, Longfellow, Lowell, Whittier, Holmes and others outlived their earlier copyrights; that Edward Everett Hale, whose "Man without a country" did for this nation a patriotic service scarcely second to that of the great generals of the civil war, had no longer copyright in this work, although private soldiers, their relicts and descendants, were still paid pensions; and that many others of our foremost authors had been, or under the present system would be, deprived of their created property within their lifetime. The term advocated provides for the author and his children's children during the probable minority of the grandchildren, a period to which the entail of realty is limited by our laws. But the final decision of the Congressional Committees was for the simpler, though in other respects less satisfactory, period of twenty-eight years, as heretofore, with a renewal period of a second twenty-eight years, under the limitations above cited. No other countries, except Canada and Newfoundland, following our example, have this double or renewal term. {Sidenote: Unpublished works} As a lecture or other work intended for oral delivery or a dramatic or musical work or a work of art, an unpublished dramatic or musical work or a work of art not reproduced in copies for sale is copyrightable without reference to date of publication, it is not altogether certain whether the term extends from the date of registration or the date of first delivery, performance or exhibition, or whether the statutory law now protects such a work under common law as unpublished, pending publication and therefore for an indefinite period if not practically in perpetuity. The Copyright Office issues a certificate for twenty-eight years, but without reference to initial date, which would be presumably the date of the certificate. The Copyright Office will doubtless, under this precedent, issue renewal certificate for the second term of twenty-eight years. {Sidenote: Publication as date of copyright} As the new copyright code makes publication with notice the basis of copyright instead of entry and deposit, as formerly, the term of copyright now dates from publication, and "the date of publication" is specifically defined (sec. 62) as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority." Such date is included in the application for registry at the Copyright Office, and on the same day twenty-eight years or fifty-six years thereafter the copyright ends. A provision for terminating copyrights at the end of the calendar year of expiration was included in the early drafts of the code, but was not included in the law as enacted. {Sidenote: Serial publication} In the case of works published and copyrighted as serials, as a novel published in parts in a monthly magazine, the copyright runs technically from the first publication of each part; and at the end of the twenty-eight or fifty-six years, each part could be successively published at monthly intervals free from copyright. Practically, however, such a copyrighted serial could not be published complete until twenty-eight or fifty-six years from the publication of the last part. In usual practice a novel is printed in book form a month or two before its completion as a serial in a magazine, and the date of the copyright on the completed work would then terminate at the end of the twenty-eight or fifty-six years from publication in book form. {Sidenote: Joint authorship} The use of the date of publication as the beginning of the copyright term and the specification of twenty-eight years and twenty-eight years for its duration, obviates questions as to anonymous and pseudonymous works, composite works or works of joint authorship. The earlier drafts of the bill, providing for a term through and beyond life, made the lifetime of the last surviving author the basis for the term of copyright on works of joint authorship. This method was interestingly applied in the German courts, when it was held as to the opera "Carmen" that Bizet's music was out of copyright, but that the libretto was protected because one of its three joint authors was still living. {Sidenote: Termination by forfeiture or laches} A copyright is terminated _ipse facto_ by forfeiture as provided in the act, either because of failure to deposit copies after notice from the Copyright Office (sec. 13), or because of false affidavit of American manufacture (sec. 17). It may also be terminated by _laches_, that is, carelessness in protecting one's rights, as by omission of the notice, unless by accident or mistake, from particular copies (sec. 20). {Sidenote: Abandonment} A copyright may be terminated by voluntary abandonment or purposed dedication as well as by expiration, forfeiture or _laches_. Thus in 1854 Congress purchased for $10,000 the copyright of Sumner's new method of ascertaining a ship's position, dedicated the method to general public use, and extinguished the copyright. The Copyright Office has no authority to recognize annulments, but it has noted request for annulment when received on the registry. In 1910 the Oxford University Press, American Branch, formally notified the Treasury Department that they abandoned the copyright on Oxford Cyclopædic Concordance copyrighted by them in 1903, and collectors of customs were accordingly authorized by circular letter of January 25, 1910, to permit importation "of any copies of the said work with the notice of the copyright obliterated, or a notice of the abandonment of the copyright plainly printed upon the same page with the notice of copyright and adjacent thereto." This last was a curious "boomerang" effect of the manufacturing clause as extended to binding in the act of 1909. {Sidenote: In England} In England the term of book copyright has been the life of the author and seven years after his death, or forty-two years from first publication, whichever the longer. The copyright in other articles has varied according to specific laws. The Copyright Commission of 1876 proposed, for all copyright articles as well as books, a term of life and thirty years after the author's death, according to the German precedent, or in case of anonymous and posthumous books and encyclopædias, thirty years from the date of deposit in the British Museum, an anonymous author to have the right during the thirty years to obtain the full term by publishing an edition with his name. The English law contained a specific provision that in the case of articles in periodicals (but not in an encyclopædia) the right to publish in separate form should revert to an author after twenty-eight years; the Commission proposed a term of three years, during which time also the author as well as the general owner may bring suit against piracy. The English committee appointed to make recommendations in respect to the adoption of the Berlin provisions of 1908 through domestic legislation, however, reported strongly in favor of a general term of life and fifty years; and this term has been adopted in the new code. {Sidenote: The new British code} This general term of "the life of the author and a period of fifty years after his death" holds "unless previously determined by first publication elsewhere." In joint authorship, copyright shall subsist during the life of the author who first dies and fifty years after or during the life of the author who dies last, whichever the longer. In posthumous works, copyright subsists for fifty years from first publication or performance, whichever the earlier. Anonymous and pseudonymous, and corporate works are not named in the act, and the term is presumably fifty years, unless in the former cases identity is disclosed. For photographs and mechanical music reproductions as such, the term is fifty years from the making of the original negative or the original plate. Existing copyrights are extended through the new period; but for the extended term the rights revert to the author, though an assignee may require continuance of the assignment or continue to publish on royalties, as determined by agreement or arbitration. Assignments, except for parts of collective works, terminate in twenty-five years, when rights revert to the heirs. {Sidenote: Perpetual copyright} The Crown has held an exclusive and perpetual right to license the printing of the Bible, Book of Common Prayer, ordnance surveys, and possibly the Acts of Parliament; and specified universities and colleges were assured perpetual copyright in works given or bequeathed to them unless given for a limited term, but the right lapsed into the usual copyright term unless the work were printed on their own presses and for their own benefit. Under the new code, "without prejudice to any rights or privileges of the Crown," any work prepared or published for His Majesty or any Government department has copyright for fifty years from first publication--the effect of which provision on Crown perpetual copyrights is not clearly evident. A saving clause protects the universities "in any right they already possess," inferentially limiting their future copyrights to the statutory term. After the death of the author of a literary, dramatic or musical work, on complaint of the withholding of the work from publication or performance, the Judicial Committee of the Privy Council may require the owner to grant a license to reproduce or perform the work in public under conditions determined by the Committee. After twenty-five years, or in the case of existing copyrights thirty years from the author's death, the work may be reproduced by any person on prescribed notice in writing of his intention and payment of ten per cent on the published price in accordance with regulations by the Board of Trade. {Sidenote: Other countries} {Sidenote: International standard term} Perpetual copyright is granted by the laws of other countries, Mexico, Guatemala, Nicaragua and Venezuela, while in Montenegro, Egypt, Liberia, Honduras, the Dominican Republic, Paraguay and Uruguay, which give copyright protection without specific legislation under a crude civil or common law enforced by the courts, the term is indefinite. A copyright term extending eighty years beyond the death of the author is granted by Spain, Cuba, Colombia and Panama. The French precedent of fifty years after the author's death was followed by Belgium, Russia and the Scandinavian countries, Hungary, Portugal and some others, and was adopted by the Berlin convention as the international standard term; the German precedent of thirty years beyond death was followed by Austria, Switzerland and Japan, while the British precedent of seven years beyond death or forty-two years from publication, whichever the longer, was followed in many of the English colonies and in Siam. Italy has a curious term of life or at least forty years after publication, with a second period of forty years during which, though the exclusive rights lapse, the author enjoys a royalty of five per cent on publication price. Haiti has the curious term of the life of the author and twenty additional years for widow or children, or ten years for other heirs. In Holland fifty years or life, in Brazil fifty years from the preceding January 1st, and in Greece fifteen years are specified. {Sidenote: Special categories} In many countries there are special terms for special categories of works, as for anonymous, pseudonymous, and corporate works, translations, photographs and telegraphic dispatches--the latter for a stated number of hours. IX FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION AND DEPOSIT {Sidenote: General principles} Copyright may inhere as a natural right, as under English common law before the statute of Anne, without record or formalities, but also without statutory protection; or formalities may be required only as a prerequisite to protection by actions at law; or formalities may be required to validate and secure the copyright. English formalities belong to the second class. American formalities are of the third class, and without them copyright does not exist. {Sidenote: Previous American requirements} The American copyright law of 1909 prescribes exactly the method of securing copyright, and makes clear the cases in which non-compliance invalidates copyright. Previous to 1909 copyright was secured by complying exactly with the statutory requirements of (1) the delivery to the Librarian of Congress on or before the day of publication, in this or any foreign country, of a printed (including typewritten) copy of title or description of the work, (2) the insertion in every copy published of the prescribed copyright notice, and (3) the deposit not later (under the law of 1891) than such day of publication (earlier law allowing ten days after publication) of two copies of the best edition of a book or other article, or a photograph of a work of art (as to date of deposit of which last the law was not explicit); and any failure to comply literally and exactly with these conditions forfeited the copyright. {Sidenote: Present American basis} The American code of 1909 substitutes an entirely different basis for securing copyright. Copyright now depends upon (1) publication with the notice of copyright, and (2) deposit of copies, these copies in the case of books and certain other works to be manufactured within the United States. The accidental omission of the copyright notice from "a particular copy or copies" does not invalidate the copyright though it may relieve an innocent trespasser from penalty as an infringer; but failure to deposit within a specified time, or false report as to manufacture, makes the copyright not valid. {Sidenote: Provisions of 1909} The general provisions as to formalities are as follows (sec. 9): "That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking _ad interim_ protection under section twenty-one of this Act"; and (sec. 10): "That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the Register of Copyrights shall issue to him the certificate provided for in section fifty-five of this Act." {Sidenote: Publication} The definition in the act (sec. 62) of "the date of publication" as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority" defines publication, and the clause (sec. 9) requiring the copyright notice to be affixed to each copy "published or offered for sale in the United States by authority of the copyright proprietor" confirms the principle that the copyright proprietor cannot be held responsible, nor can copyright be voided because of copies "published," offered, sold or distributed without his authority. The Copyright Office Rules and Regulations (23) add to the definition of publication the parenthetical explanation: "(_i. e._, so that all persons who desire copies may obtain them without restriction or condition other than that imposed by the copyright law)." It is questionable, however, whether this explanation does not go beyond the letter of the law. In Stern _v._ Remick, in 1910, the U. S. Circuit Court protected the copyright of a song, though only one copy had been offered for sale and sold. Advance distribution to the trade or of review copies would not constitute publication. While the law does not prescribe first publication in this country, it is at least doubtful whether a book published in another country prior to publication here, unless protected by international copyright relations, has not fallen into the public domain and thus forfeited copyright protection here. {Sidenote: Copyright notice} The first step in securing copyright, being publication "with the notice of copyright" "affixed to each copy published or offered for sale in the United States by authority of the copyright proprietor," the method and form of this notice is of first importance. The act of 1909 provides (sec. 18): "That the notice of copyright required by section nine of this Act shall consist either of the word 'Copyright' or the abbreviation 'Copr.,' accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication. In the case, however, of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: _Provided_, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright is subsisting when this Act shall go into effect, the notice of copyright may be either in one of the forms prescribed herein or in one of those prescribed by the Act of June eighteenth, eighteen hundred and seventy-four." {Sidenote: Previous statutory form} Under the law of 1874, the prescribed notice was in the old form (Rev. Stat. 4962), "Entered according to Act of Congress, in the year ----, by A. B., in the office of the Librarian of Congress, at Washington," with the optional alternative of the form "Copyright, 18--, by A. B." Under the new code the latter form is preserved, with the alternative of the provision "Copr.," with date and name, but the longer form may be used on books copyrighted under the earlier acts, even if reprinted after the passage of the later act. Except for books previously copyrighted, the longer form is not now the legal notice, and its use would be dangerous, as it does not contain the specific word copyright, or its abbreviation, now made an obligatory part of the notice. While in Osgood v. Aloe in 1897, the omission of the name from the notice, though on the title-page, and in Record & Guide Co. _v._ Bromley in 1910, the omission of the date, though indicated by the date of the periodical in the line below, were held to void the copyright, such addition as the words "published by" has been held, as in Hills v. Hoover in 1905, a mere superfluity not voiding copyright. {Sidenote: Exact phraseology required} The exact phraseology and order of words must be followed, and it has been held that any inaccuracy in the name of the copyright proprietor, as in the English case of Low _v._ Routledge, by Vice-Chancellor Kindersley, in 1864, or in the date of the entry, as in the American case of Baker _v._ Taylor in 1848, when 1847 was put for 1846, makes the copyright invalid. {Sidenote: Name} The name in the copyright notice (C. O. Rule 24) must be the real name of a living person or of a firm or corporate body or the trade name in actual use, and may not be a pseudonym or pen-name or other make-believe. A copyright notice should not be in the name of one person for the benefit of another; the beneficiary's name should be the one printed. A publisher may take out a copyright for an author, however, in which case the publisher's name and not the author's name will be given, unless the publisher makes application as the agent of the author-claimant. The name in the copyright notice must correspond fully with the real name as given in the application, but an objection that N. Sarony instead of Napoleon Sarony was not the real name, was quashed in 1884, in Burrow-Giles Lith. Co. _v._ Sarony, by the U. S. Supreme Court. {Sidenote: Date} The date of copyright notice, being that of publication, should correspond with the imprint date on the original edition; but on later printings or editions, where the date of imprint is changed, the copyright notice would of course show the earlier date of the original edition. Thus a book first published in 1911 could not bear copyright notice of 1910 date, which would mean that copyright was registered before instead of after publication, which is not possible under the new law; nor should an edition of 1910 bear copyright notice of 1911, as the application and notice should state the actual year of publication; and the date of 1911 in imprint where the copyright notice is of 1910, would be correct only on a later edition, as above stated. A book may be printed, however, in a certain year and not published till a later year, in which case the copyright notice would be of later date than the imprint date; thus the Copyright Office registered in 1910, under the new law, a copyright on a work with the imprint of 1904, on assurance that though printed in 1904, the work was not actually published until 1910. Under the old law, where, as stated above, a copyright notice later than the actual copyright was disallowed as claiming protection beyond the copyright term, a later decision, in 1888, in Callaghan _v._ Myers, held, that where a copyright notice gave the year 1866, while the true date was 1867, there was no harm done to the public, because a year of the copyright, which really ended in 1895 instead of 1894, was given to the public, whereas in the previous case an additional year was claimed. Doubt was thrown upon this decision by Judge Wallace in Schumacher _v._ Wogram, also in 1888. In Snow _v._ Mast in 1895, the substitution for 1894 of the abbreviated '94, and in Stern _v._ Remick in 1910, the use of words or Roman numerals for Arabic, were upheld. {Sidenote: Accidental omission} An important safeguard, new in copyright law, is enacted in the provision (sec. 20): "That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer who has been misled by the omission of the notice; and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay innocently incurred if the court, in its discretion, shall so direct." {Sidenote: Place of notice} It is further provided (sec. 19): "That the notice of copyright shall be applied, in the case of a book or other printed publication, upon its title-page or the page immediately following, or if a periodical either upon the title-page or upon the first page of text of each separate number or under the title heading, or if a musical work either upon its title-page or the first page of music: _Provided_, That one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice." Although the code of 1909 relieves the copyright proprietor from permanent forfeiture in the case of an accidental omission of the copyright notice from certain copies (sec. 20), the statute is otherwise specific, and there seems to be no means of relief where the copyright notice is, however innocently, in the wrong place or in the wrong form. Thus in 1909, in Freeman _v._ Trade Register, the U. S. Circuit Court held that where the copyright notice of a periodical appeared on the editorial page, which was not the first page of text, the copyright was voided. The copyright notice can probably, however, be placed safely and preferably on the first page, being the title-page, of a specially copyrighted part of a book, as an introduction preceding a non-copyright work or an index or appended notes, or upon specific illustrations; and this is perhaps preferable in copyrighting editions with such features of works otherwise in the public domain. In the case of articles in a periodical or parts of a composite work separately copyrighted or registered, the copyright notice should appear on the same page as the title heading. {Sidenote: One notice sufficient} The proviso (sec. 19) that one notice of copyright in each volume or in each number of a periodical shall suffice is complementary to the provision (sec. 3) by which a copyright protects all the copyrightable component parts of the work copyrighted, and gives to the proprietor of a composite work or periodical all the rights he would have if each part were individually copyrighted. It means that there need be no repetition of the general copyright notice on different portions of a book or periodical. In West Pub. Co. _v._ Thompson Co., under the old law, Judge Ward, in the U. S. Circuit Court of Appeals in 1910, overruled the defense that the copyright was not valid because the copyright notice did not repeat the several copyright notices originally protecting the several parts of the compilation; and this view, that the general copyright notice protects all copyrighted and copyrightable parts, is now specifically embodied in the statute. {Sidenote: Separate volumes} {Sidenote: Different dates} The proviso (sec. 61) "that only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time" indicates that one copyright entry suffices for several volumes simultaneously published, but each separate volume should contain the notice. Volumes published separately, not only in successive years but at successive dates within the year, should be separately registered, and if published separately in successive years, must each bear its copyright notice for the year of publication--this being the direct sequence from the provision that copyright runs from the specific date of publication and not from the year or date of registration. The Copyright Office will, however, under the law, register for one fee volumes or parts deposited at the same time, though published at various times. In the case of a book issued in successive parts, of which only the first part includes a title-page or title headings, the law is not specific; but it seems probable that, in default of copyright notice and registration for each part, the parts not bearing copyright notice might be legally reprinted, and that the safer course is to place the copyright notice on the first page of each part and register each part separately, in which case the completed work should have the date or dates of the year or years within which the several parts were published. There seem to be no objections, within the law or from court decisions, to coupling two dates in the same notice, in such cases as "Copyright, 1910, 1911, by A. B.," though there is no specific decision on this point. Under the previous law a book published in more than one volume or part, the portions not complete in themselves, was probably protected by copyright entry of the first part, all parts being of course ultimately deposited; but the change in the new code basing copyright on publication with notice, seems to change this rule of practice. In the case of Dwight _v._ Appleton, in 1840, it was held that as the statute did not expressly prescribe that the copyright notice should appear in successive volumes after the first, this was not necessary; but the application of this doubtful decision under the new code would be more than questionable. {Sidenote: Notice part of initial step} It may be emphasized that publication with notice is the first step in copyright under the new code, and that registration on deposit is the secondary and completing act, and therefore that no registry in the Copyright Office is necessary to authorize the printing of the copyright notice, as was formerly the case. {Sidenote: Extraterritorial notice} The requirement (sec. 9) that the notice of copyright "shall be affixed to each copy published or offered for sale in the United States by authority of the copyright proprietor" makes clear what was a subject of dispute under the old law. The courts, however, generally held that extraterritorial notice of copyright, _i. e._ on foreign editions, was impracticable and unnecessary; and this view is specifically adopted in the new code. In 1905, in Harper _v._ Donohue, it was held by Judge Sanborn, in the U. S. Circuit Court, that the omission of the American copyright notice from an English edition could not vitiate copyright here, especially in view of the prohibition in the law of the importation of foreign-made copies of copyright works. In 1908, in Merriam _v._ United Dictionary Co., it was held by the U. S. Supreme Court, through Justice Holmes, that even where the omission of the notice on a foreign-made edition was with the assent of the American copyright proprietor, there was no waiver of copyright in this country. {Sidenote: Successive editions} In the case of successive printings or editions of a copyrighted book, the original copyright entry must appear in every reprint of the first edition; and it would seem that this entry should also appear in every new edition newly copyrighted, as well as the new notice, so long as it is desired to protect the matter contained in the old edition. Judge Clifford, in the U. S. Circuit Court, in Lawrence _v._ Dana, in 1869, ruled this to be superfluous; but his decision is contrary to the rule that a proprietor may not claim through the copyright notice a longer term than the law permits, since a later date, referring only to new matter, but apparently comprehensive of the whole contents, might be voided under this rule. It is doubtful whether on a new edition with old and new matter one copyright notice with two dates is safe, and the wiser course is to give both the earlier copyright notice and the later notice in proper sequence. In the case of new printings of works published and copyrighted prior to July 1, 1909, no new notice or application is required unless there is added material to be additionally protected and constituting to that extent a new work, in which case a new application and the deposit of two copies is necessary. {Sidenote: False copyright notice} Provision is specifically made against false notice of copyright by the enactment (sec. 29): "That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars," and the importation of any article bearing a notice of copyright when no American copyright exists is absolutely prohibited (sec. 30). {Sidenote: Ad interim protection} It should be noted that the copyright notice is not required on books published abroad in the English language before publication in this country, entered for _ad interim_ copyright, and therefore that within sixty days after the publication abroad of a book in the English language, such book may be protected by American registration, though containing no notice of copyright; and within this period inquiry at the Copyright Office is necessary to determine the status of the book. {Sidenote: Substitution of name} It is provided (sec. 46): "That when an assignment of the copyright in a specified book or other work has been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act." This applies only where the entire copyright has been assigned and the assignment duly recorded in the Copyright Office as provided by law, and does not permit a change of name in the copyright notice under any other circumstances, as partial assignment. Substitution without authority of law voids copyright, as was held in Record & Guide Co. _v._ Bromley in 1910, where another trade name of the copyright claimant was substituted for the original trade name. {Sidenote: Registration} The method of registration, or rather of application therefor, is not specified in the law, for the reason that under the code of 1909 deposit succeeding publication is made the act completing the securing of copyright, and registration is incidental thereto instead of the first requisite. Under the old law it was decided in the U. S. Circuit Court through Judge Colt, in Gottsberger _v._ Estes, that publication before deposit of copies voided the copyright. {Sidenote: Rules and regulations} The act provides (sec. 53): "That, subject to the approval of the Librarian of Congress, the Register of Copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act," and (sec. 54) "whenever deposit has been made in the Copyright Office of a copy of any work under the provisions of this Act, he shall make entry thereof." {Sidenote: Application} It is provided (sec. 5): "That the application for registration shall specify to which of the [stated] classes the work in which copyright is claimed belongs," but it is also provided "nor shall any error in classification invalidate or impair the copyright protection." In Green _v._ Luby, in 1909, the U. S. Circuit Court protected a vaudeville sketch, though classified as a dramatic instead of a dramatico-musical copyright, against infringement by a mimic performance. {Sidenote: Certificate} It is further provided (sec. 55): "That in the case of each entry the person recorded as the claimant of the copyright shall be entitled to a certificate of registration under seal of the Copyright Office, to contain his name and address, the title of the work upon which copyright is claimed, the date of the deposit of the copies of such work, and such marks as to class designation and entry number as shall fully identify the entry. In the case of a book the certificate shall also state the receipt of the affidavit as provided by section sixteen of this Act, the date of the completion of the printing, or the date of the publication of the book, as stated in the said affidavit. The Register of Copyrights shall prepare a printed form for the said certificate, to be filled out in each case as above provided for, which certificate, sealed with the seal of the Copyright Office, shall, upon payment of the prescribed fee, be given to any person making application for the same, and the said certificate shall be admitted in any court as _prima facie_ evidence of the facts stated therein. In addition to such certificate the Register of Copyrights shall furnish, upon request, without additional fee, a receipt for the copies of the work deposited to complete the registration." {Sidenote: Application requirements} The application is in general in simple form, and care should be taken in filling out the card that the space at the top intended for use by the Copyright Office should be left blank. The application must be signed with the name and address of the copyright claimant, who may be the author or his representative, as where his publisher is taking out the copyright. In the case of works made for hire, the employer may make application as author. The name of the author should be given on the line provided for that purpose, even though the name of the author as claimant is also given above; but in the case of anonymous or pseudonymous works, the name of the author is not required. The title should be given exactly as on the title-page of the book or on the work, and the other particulars called for in the application should be exactly as indicated by the work itself. The day of publication must be exactly stated, and the application cannot be made, therefore, until _after_ publication. Provision is also made on the card for the name and address of the person to whom the certificate of registration is to be sent and of the remitter of the fee, and in the case of books, the application must be accompanied by the affidavit made either on the reverse of the application card or on the separate card also provided. In applications, as for foreign or _ad interim_ copyright, where the nationality of the author should be stated, information as to citizenship, not race, is required. A person naturalized in the United States is defined as an American. A foreign author claiming copyright because of residence, must state that he is a "permanent resident" of the United States (C. O. Rule 29). {Sidenote: Illustrations} The illustrations of a book may be separately registered, and if by lithographic or photo-engraving process must also have affidavit of manufacture in this country. Maps and charts are classed with works of art, and the formalities in respect to these, as well as in respect to dramatic and musical compositions, are treated specifically in the chapters on those specific subjects. {Sidenote: Periodicals} In respect to periodicals, application should be made as for books, but no affidavit is required; separate registration is necessary for each number published, with notice of copyright, and can be made only after publication. It is not possible to register the title of the periodical in advance of publication. (C. O. Rule 36.) Two deposit copies of periodicals are required; but a contribution to a periodical separately registered requires the deposit of only one copy of the periodical. The entire copy should be sent, as a mere clipping does not comply with the statute. (C. O. Rule 37.) The date of publication of a periodical is not necessarily the printed date of issue, and the actual day of publication should be stated in the application, whether for the registration of the periodical itself or a contribution to it. {Sidenote: Application cards} The Copyright Office has prepared blank forms in library card shape, which are furnished applicants free of charge, for the several classes of applications mentioned in the law, the cards being in _pink_, except as hereafter stated, lettered and numbered as follows: (A1) book by citizen or resident of the United States; (A1. New ed.) new edition of book by citizen or resident of the United States; (A1 for.) book by citizen or resident of a foreign country, but manufactured in the United States; (A2) edition printed in the United States of book originally published abroad in the English language, all these being double cards including affidavit of American manufacture--supplemented by _blue_ cards providing with specific instructions, (A1) for separate affidavit of American manufacture from type set or plates made in the United States, and (A2) for lithographic or photo-engraving process within the United States; (A3) book by foreign author in foreign language; (A4) _ad interim_ copyright--book published abroad in the English language; (A5) contribution to a newspaper or periodical; (B1) periodical,--for registration of single issue; (B2) periodical,--general application and deposit, supplemented by a _white_ blank for depositing single subsequent issues; (C) lecture, sermon, or address prepared for oral delivery; (D1) published dramatic composition; (D2) dramatic composition not reproduced for sale; (D3) dramatico-musical composition; (E1) published musical composition; (E2) musical composition not reproduced for sale--these supplemented by a _blue_ card (_U_), notice of use on mechanical instruments; (F) published map; (G) work of art (painting, drawing, or sculpture), or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character; (J1) photograph published for sale; (J2) photograph not reproduced for sale; (K) print or pictorial illustration; (R1) renewal of copyright subsisting in any work; (R2) extension of a renewal copyright subsisting in any work. Thus an applicant for copyright on an American book should send for card (A1), on which he may enter his application and also include affidavit as to American type setting, printing, and binding; if he wishes the affidavit to be separately made he should obtain also the special _blue_ card (_A_1), or if lithographic or photo-engraving is used he should obtain also the special _blue_ card (_A_2). A dramatic applicant should send for card (D1) or card (D3), respectively, for the entry of a dramatic or dramatico-musical composition; or for (D2) if he desires to copyright without reproducing for sale. The applicant for a musical composition, as distinguished from a dramatico-musical work, should send for card (E1) or (E2) respectively. The art applicant should send for card (G) for an original work of art, or card (H) for a reproduction, or for a photograph card (J1) or card (J2) respectively. {Sidenote: Certificate cards} Similar certificate cards, also of library size, uniformly _white_, are provided for the several classes of registration, correspondingly lettered and numbered, except in a few cases where one certificate form serves for more than one class or subdivision, with the addition of a general form (Z) to cover anything unprovided for in the other certificate forms. The certificate bears on one side the uniform statement of the deposit of two copies or one copy of the article named herein, and of registration for the first or renewal term, with the name of the claimant (printed in the case of a few of the publishers making most applications), and on the other side the specification (following the wording of the application and the deposit copy) of the title or description, date of publication, receipt of affidavit (where required), receipt of copies and entry number by class, together with the seal of the Copyright Office. {Sidenote: Fees} This certificate is sent without charge other than the fees directly provided for in the law (sec. 61), viz., "for the registration of any work subject to copyright, deposited under provisions of this Act, one dollar, which sum is to include a certificate of registration under seal: _Provided_, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents.... For recording the extension or renewal of copyright provided for in sections twenty-three and twenty-four of this Act, fifty cents." The law no longer contemplates record before publication, and it is unnecessary and undesirable to send application or money previous to sending of deposit copies. In fact, as the certificate must show date of publication, publication _cannot_ be anticipated, and money sent in advance, for individual registrations, is only an embarrassment to the Copyright Office. The Office will, however, receive advance deposits from publishers of periodicals or other publishers making frequent registrations, against which each registration will be charged. Fees should be sent by money order, or at the remitter's risk, in currency (but not in stamps). Bank drafts and certified checks are accepted in practice, though the Register of Copyrights cannot legally receive checks except at his personal risk and therefore from persons known to him as in frequent relation with the Copyright Office. Postage must be prepaid on the signed application, as there is no provision for free transmission through the mails, such as applies to deposit copies. In practice the application with remittance and the deposit copies should be simultaneously sent immediately after publication. {Sidenote: Deposit} The law provides that deposit copies shall be sent _promptly_ after publication, and that _two complete_ copies of the _best_ edition then published (or one copy in case of a contribution to a periodical or for identification of a work not reproduced for sale) shall be deposited; and if a work is published with notice of copyright, and copies are not promptly deposited, the copyright is voided and the proprietor becomes subject to penalty three months (or in case of outlying possessions or foreign countries six months) after formal demand by the Register of Copyrights for deposit copies. The word "promptly" is indefinite and has been vaguely construed to mean "without unnecessary delay," but this does not mean the very day of publication (C. O. Rule 22). The status of undeposited works published with copyright notice and not formally demanded by the Register of Copyrights, is also not defined by the law. In such case the copyright has not been perfected by the completing act, and it would be impracticable to proceed against an infringer, and the proprietor might be liable to penalty for false notice of copyright. In the event of such a case arising, through carelessness or otherwise, the courts would have to decide the question by definition of the word "promptly" and an interpretation of the implication that copyright is voided, meaning that the right to obtain copyright lapses, if the process is not completed without undue delay. {Sidenote: Fragment not depositable} The deposit copy must be the complete work; a fragment is not a work, and a part of a work cannot be copyrighted, especially as this would nullify the manufacturing clause, as set forth in the opinion of the Attorney-General, February 9, 1910. {Sidenote: Typewriting publication and deposit} A work may be published and deposited in typewriting copies, as set forth in the opinion of the Attorney-General of May 2, 1910, but this will not operate to avoid the manufacturing clause when the work is published in print. {Sidenote: Legal provisions} The completion of the copyright by deposit of copies is covered by the provision (sec. 12): "That after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the Copyright Office or in the mail addressed to the Register of Copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, which copies, if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this Act; or if such work be a contribution to a periodical, for which contribution special registration is requested, one copy of the issue or issues containing such contribution; or if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction provided by section eleven of this Act, such copies or copy, print, photograph, or other reproduction to be accompanied in each case by a claim of copyright. No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with." {Sidenote: Voiding by failure to deposit} In case of failure to deposit, the law of 1909 provides for penalties and finally voiding of the copyright, as follows (sec. 13): "That should the copies called for by section twelve of this Act not be promptly deposited as herein provided, the Register of Copyrights may at any time after the publication of the work, upon actual notice, require the proprietor of the copyright to deposit them, and after the said demand shall have been made, in default of the deposit copies of the work within three months from any part of the United States, except an outlying territorial possession of the United States, or within six months from any outlying territorial possession of the United States, or from any foreign country, the proprietor of the copyright shall be liable to a fine of one hundred dollars and to pay to the Library of Congress twice the amount of the retail price of the best edition of the work, and the copyright shall become void." {Sidenote: Forfeiture by false affidavit} In the case of a printed book or periodical or of a lithograph or photo-engraving, the copies deposited must be manufactured in America, as set forth in the manufacturing provision (sec. 15) as verified in the case of a book by affidavit (sec. 16) separately treated hereafter, and the book copyright is forfeited (sec. 17) in the event of false affidavit. Thus failure to deposit, and, in the case of books, false affidavit as to American manufacture, are the two lapses of formalities which work forfeiture of copyright. {Sidenote: Works not reproduced} In the case of works not reproduced for sale, copyright may be secured under the provision (sec. 11): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic or musical composition; of a photographic print if the work be a photograph; of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing. But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit copies under sections twelve and thirteen of this Act where the work is later reproduced in copies for sale." The entire work should in each case be deposited (C. O. Rule 18) and not a mere outline, epitome or scenario; and the copy should be in convenient form, clean and legible, with the leaves securely fastened together, and should bear the title of the work exactly as given in the application. {Sidenote: Second registration} It should be noted that in this class of copyright, which is a common law copyright fortified by statutory protection, an ideal example of copyright law, double registration is required in case the unpublished copyrighted work is published, requiring one application fee and deposit of one identifying copy for the unpublished work and a second application fee and deposit of two copies promptly after publication. {Sidenote: Free transportation in mail} It should be noted that the deposit copies may be deposited either in the Copyright Office or "in the mail addressed to the register of copyrights," and it is provided (sec. 14): "That the postmaster to whom are delivered the articles deposited as provided in sections eleven and twelve of this Act shall, if requested, give a receipt therefor and shall mail them to their destination without cost to the copyright claimant." Franking labels are not required and are no longer issued by the Copyright Office. Deposit copies, and all mail matter, should be addressed to the "Register of Copyrights, Library of Congress, Washington, D. C.," and not to any person by name. {Sidenote: Loss in mail} Thus even if the deposit copies should not reach Washington, as in case they were burned in the mail, the copyright proprietor can validate his claim by production of the postmaster's receipt in lieu of deposit copies. {Sidenote: Foreign works} In respect to foreign works, it should be noted that "the original text of a work of foreign origin in a language or languages other than English," may be formally copyrighted and fully protected by registration under the same formalities as domestic works except that the deposit copies need not be manufactured within the United States, thus giving the author the exclusive right of translation. Copies published for use in America must of course bear the copyright notice. A translation into English from such text cannot be copyrighted unless the deposit copies of the English translation are manufactured within the United States; and this holds true also in respect to translations into a language other than English, as it is only "the original text" which can be copyrighted without American manufacture. {Sidenote: Ad interim deposit} In respect to books published abroad in the English language, _ad interim_ protection is assured by the provision (sec. 21): "That in the case of a book published abroad in the English language before publication in this country, the deposit in the Copyright Office, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a request for the reservation of the copyright and a statement of the name and nationality of the author and of the copyright proprietor and of the date of publication of the said book, shall secure to the author or proprietor an _ad interim_ copyright, which shall have all the force and effect given to copyright by this Act, and shall endure until the expiration of thirty days after such deposit in the Copyright Office." {Sidenote: Completion of ad interim copyright} On such works the provisional copyright is made permanent under the provision (sec. 22): "That whenever within the period of such _ad interim_ protection an authorized edition of such book shall be published within the United States, in accordance with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act." The _ad interim_ provision requires the same formalities and fee as in the case of domestic works, except that only one copy of the foreign work in English need be deposited, and that this deposit copy need not contain the statutory notice of American copyright. The claimant is given thirty days after publication abroad in which to request reservation and a second thirty days after deposit of the foreign copy within which to publish or cause to be published an edition manufactured in America and thus to complete his copyright. This gives a period of _ad interim_ protection, ranging from thirty days to sixty days, within which to obtain permanent copyright, the exact period depending upon the number of days elapsing after publication before deposit of the foreign copy in the Copyright Office. Thus a copy deposited on the day of publication will have thirty days in all within which to secure permanent copyright by the publication of the American-made edition, while a copy deposited on the thirtieth day after publication will have sixty days in all; but the failure to deposit the foreign copy within thirty days after publication, or the failure to publish an American-made edition within thirty days after such deposit, will forfeit the right to obtain copyright protection and throw the foreign work into the public domain, despite the _ad interim_ registration. When an American-made edition with notice of copyright can be published in America simultaneously with its publication abroad, _ad interim_ protection is of course rendered unnecessary; and such simultaneous publication is the simplest and best practice for publishers to adopt. {Sidenote: Omission of copyright notice} It may also be emphasized here that the notice of copyright can be omitted only from foreign-made copies and must be included in the American-made edition. The American publisher desiring to reprint a book published abroad in the English language within sixty days after publication, without consent of the copyright proprietor, must therefore assure himself, by inquiry from the Copyright Office, whether the work has been registered _ad interim_. The printing of an American copyright notice on the foreign edition in anticipation of the publication of an American-made edition and the deposit of copies thereof within the statutory requirements is a questionable practice, as a failure to publish American-made copies in the United States, because of defective publishing arrangements or a printers' or binders' strike, would make such notice a false notice of copyright. The copyright term in the case of such foreign work in the English language dates, it would seem, from the date of publication abroad rather than from the date of publication of the American-made edition; but this would be of importance only toward the expiration of the original term and in connection with the renewal term. {Sidenote: Books only ad interim} _Ad interim_ protection seems to be confined exclusively to a book as such, and therefore does not apply to articles in periodicals. {Sidenote: American authors not thus protected} It should be noted that an American author publishing his work abroad is not benefited by either of these provisions respecting foreign works. The provision regarding works in other languages is specifically confined to a work of foreign origin, that is, not by an American author; and he gains nothing, if his work is in English, from _ad interim_ protection. Thus an American author publishing his work first in German in Berlin, must copyright and deposit an American-made edition of his German text in this country to obtain American protection, without which his work in German could be imported into this country without his consent, and an independent translation of his text into English and its publication in America could not be prevented. {Sidenote: Exact conformity required in formalities} In view of the exact prescription of the method of securing copyright, unless the statute is precisely complied with the copyright is not valid. Said Judge Sawyer, in 1875, in Parkinson _v._ Laselle: "There is no possible room for construction here. The statute says no right shall attach until these acts have been performed; and the court cannot say, in the face of this express negative provision, that a right shall attach unless they are performed. Until the performance as prescribed, there is no right acquired under the statute that can be violated." And in the case of the play "Shaughraun," Boucicault _v._ Hart, in 1875, Justice Hunt held, as regards copyrights in general: "Two acts are by the statute made necessary to be performed, and we can no more take it upon ourselves to say that the latter is not an indispensable requisite to a copyright than we can say it of the former." The Supreme Court laid down this general doctrine in Wheaton _v._ Peters, in reference to the statutes of 1790 and 1802, and the later statutes are most explicit on this point. In the same case of Wheaton _v_. Peters, Justice McLean, in delivering the judgment of the Supreme Court, held that while the right "accrues," so that it may be protected in chancery, on compliance with the first requirement of the prescribed process, it must be perfected by complying with the other requisites before a suit at law for violation of copyright can be maintained. {Sidenote: Expunging from registry} A false or unjustifiable entry of copyright may be expunged from the registry by court order, as was done in the English case _Re_ Share Certificate Book in 1908. {Sidenote: British formalities} The statutory formalities of copyright in other countries vary greatly. In Great Britain copyright has been secured by first (or simultaneous) publication within the British dominions or under the "international copyright act." The law provided that a copy of the best edition of a book must be deposited in the British Museum, this giving basis for proof of publication, which deposit must be made within one month after publication if published within London, three months elsewhere in the United Kingdom, and one year in other parts of the British dominions; the failure to deposit did not forfeit copyright, but involved a fine; but under the international copyright provisions, deposit in the British Museum of a colonial or foreign work was not required, though useful as _prima facie_ evidence of publication. Four other copies of domestic books must be supplied to the universities of Oxford, Cambridge, Edinburgh and Dublin if demanded within twelve months from publication. Registration at Stationers' Hall was necessary for books only as a prerequisite to an action at law against infringement, but was obligatory in the case of paintings, drawings and photographs. Copyright notice on a book was not required except to reserve the right of representation of a dramatic work, etc., though it has been customary for English publishers to print the phrase "All rights reserved" as the equivalent to the copyright notice. But copyright notice was required to protect sculpture, engravings and musical compositions and in respect to oral lectures. {Sidenote: The new British code} The new British code bases copyright for all published works on first publication within "the parts of His Majesty's dominions to which this Act extends" or as provided for in colonial or international arrangements--copyright of unpublished works depending upon British citizenship or residence at the time of making. Delivery of copies to the British Museum and on demand to the other libraries is required from the publisher of every book published in the United Kingdom, but on penalty of five pounds and the value of the book and not of forfeiture of copyright. The National Library of Wales is entitled to a sixth copy, in prescribed classes of books. Registration is no longer made a condition or circumstance of copyright. Most of the British colonies have followed the precedent of the mother country, with slight variation, in their domestic legislation. Canada and Newfoundland, following the precedent of the United States, require copyright notice in statutory form. {Sidenote: Other countries} France requires deposit of two copies upon publication, and registration is required prior to a suit for infringement. Germany requires the registration of the name of the author of anonymous or pseudonymous works as the condition for copyright, but otherwise grants copyright practically as natural right without requiring formalities. The greater number of copyright countries do not impose any formalities except for specific privileges as the right of translation, of representation or of reproduction in the case of periodical contributions; or for special subjects as works of art, musical compositions, telegraphic messages, where these are protected, and oral lectures. Deposit of copies is, however, generally required, either before putting the book on the market or before circulation, or upon publication, or else within a specified time after publication, ranging from ten days in the case of Greece to two years in the case of Brazil, while in several countries no specific time is mentioned. In Italy, if no deposit of a registered work is made within ten years, the copyright is considered to be abandoned. The number of copies required varies in the several countries from one to six. In some countries specific formalities are required to establish the beginning of the term of protection for collective or posthumous works, etc., or in connection with the disclosure of the author's name on anonymous or pseudonymous works. Spain, Colombia and Panama, and Costa Rica have a curious provision that if a work is not registered within one year from publication the copyright is forfeited for ten years, at the end of which period it may be recovered by registration. Canada and Newfoundland, following the United States precedent, Australia, Holland and the Dutch colonies, and Siam require manufacture within the country. In several countries penalty for failure to deposit is provided, the limit being usually the value of a book and a sum not exceeding £5, or in France 300 francs. The deposit of a photograph or sketch of a work of art is in many countries required for purposes of identification. {Sidenote: International provisions} International copyright throughout the countries of the International Copyright Union and the Pan American Union, if the Berlin and Buenos Aires conventions are ratified throughout, will depend, as now it depends for most countries, entirely on the formalities in the country of origin. X THE AMERICAN MANUFACTURING PROVISIONS {Sidenote: Manufacturing provision of 1891} In the American law of 1891, embodying the "international copyright amendment" which for the first time permitted the copyright in the United States of works by foreign authors not resident in this country, the copyright of books was conditioned on the manufacture within the United States, and this condition was made applicable also to American authors. {Sidenote: Text in 1909 code} The American code of 1909 follows this precedent in making manufacture within the United States a _sine qua non_ of copyright for printed books and periodicals, lithographs and photo-engravings, under the following provision (sec. 15), commonly cited as the manufacturing provision: "That of the printed book or periodical specified in section five, subsections (a) and (b) of this Act, except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this Act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of type-setting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photo-engraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States; which requirements shall extend also to the illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art; but they shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English, or to books published abroad in the English language seeking _ad interim_ protection under this Act." {Sidenote: Scope and exceptions} This manufacturing provision requires that every "book" except the original text of a book of foreign origin, _i. e._, not by an American writer in a language or languages other than English, or a book published abroad in the English language seeking _ad interim_ protection, or a book in raised characters for the use of the blind, can obtain American copyright whether by an American or foreign author, only in case the type is set, the plates made and lithographic or photo-engraving text or illustrations produced and the work printed and bound within the limits of the United States--inclusive, presumably, of the outlying dependencies. The provision extends to periodicals, though these are not subjected to the affidavit clause, and periodicals containing authorized copyrighted material are not prohibited from importation. The provisions extend also to lithographs or photo-engravings, issued separately as well as for book illustration, unless these represent foreign subjects or illustrate a scientific work or reproduce a work of art. {Sidenote: Changes 1891-1909} The provision of 1909 differs from the provision of 1891 in requiring that a book should be from plates type-set as well as made, and be printed and bound, within the United States, in adding periodicals and by omitting photographs and dropping the word chromo, and including photo-engravings as well as lithographs. The inclusion of binding in the manufacturing provision met with especial opposition, on the ground that binding is not an integral part of, but an incidental addition to, a completed book. {Sidenote: German-American instances} The effect of these provisions, to cite specific instances, is that an original German text by a non-American author is exempt from the manufacturing provisions, but that a French translation or an English translation is not, and that an original German work by an American author must be manufactured in this country to obtain protection, and that the American author printing his work in English abroad may claim _ad interim_ protection but can obtain no substantial benefit from it. In case a German-American citizen, or German resident of this country, writes a book in the German language and prints it first in Berlin, he can have no American copyright in the German edition; and if copies of such an edition, without copyright notice, should reach the United States previous to manufacture and publication of the work here, any one would have the right to reprint print it, and the work would be practically dedicated to the public, while the copyright notice could not be affixed to such foreign printed edition without violation of the law. If, however, the German work were a translation made by or for the author of a work written in English, the general copyright of the English work would cover the German edition, but the German copies could not then be imported. {Sidenote: Dramas excepted} A drama copyrightable as such under subsection (d) is not subject to the manufacturing provision, unless classified as a book under subsection (a). A printed drama was held not to be subject as a book to the manufacturing provision in Hervieu _v._ Ogilvie, in the U. S. Circuit Court, by Judge Martin in 1909, and this decision under the old law is applicable to the new code. {Sidenote: Exception of foreign original texts} The exception of "the original text of a book of foreign origin in a language or languages other than English,"--drafted by the author of the present volume, introduced at the instance of the American (Authors) Copyright League, as the McCall bill with the assent of the representatives of the typographical unions responsible for the manufacturing provision,--was included to assure a real reciprocity in copyright with continental and other non-English nations. The exception is repeated toward the close of the section in the somewhat wider phrase "books of foreign origin in a language or languages other than English," which omits restriction to "the original text"; but it is probable that the second phrasing would be construed in conformity with the first, as the evident intention of the law. {Sidenote: Exception of foreign illustrative subjects} The exception from lithographs and photo-engravings of subjects which "are located in a foreign country and illustrate a scientific work or reproduce a work of art" is intended to permit the importation, either separately or for book use, of direct reproductions made abroad of scenes or objects which otherwise could be reproduced in this country only indirectly and at second-hand; the confusing and probably careless use of the word "and" might seem to exclude from the exemption a lithograph or photo-engraving of a natural scene, illustrating a work of travel, but the courts might here feel justified in taking the more liberal view. {Sidenote: Affidavit requirement} To the manufacturing provision of the previous law has been added a new affidavit requirement (sec. 16) as follows: "That in the case of the book the copies so deposited shall be accompanied by an affidavit, under the official seal of any officer authorized to administer oaths within the United States, duly made by the person claiming copyright or by his duly authorized agent or representative residing in the United States, or by the printer who has printed the book, setting forth that the copies deposited have been printed from type set within the limits of the United States or from plates made within the limits of the United States from type set therein; or, if the text be produced by lithographic process, or photo-engraving process, that such process was wholly performed within the limits of the United States, and that the printing of the text and binding of the said book have also been performed within the limits of the United States. Such affidavit shall state also the place where and the establishment or establishments in which such type was set or plates were made or lithographic process, or photo-engraving process or printing and binding were performed and the date of the completion of the printing of the book or the date of publication." {Sidenote: Avoidance of errors} In preparing the affidavit, which is necessary for books only, the applicant should be careful to note the following points, as to which errors are commonly made. The affidavit should correspond exactly with the application (as that with the title-page or other data in the work itself). The affidavit cannot be made till _after_ publication and must state the exact day of publication or the date of completion, either or both, which last means not necessarily the completion of printing the whole edition, but of the deposit copies. The affidavit must be taken and signed by an individual, not by a corporation, company or firm as such, and the affiant must state whether he is the claimant, agent of the claimant, or printer, striking out the other designations. The name of the printer and binder must be given in the affidavit with city and state (but not street) address; but this means the printing and binding establishment and not the individual type-setter or binder. If the book is not bound but only issued in paper, the word "unbound" should be written into the affidavit. It is necessary to give the _venue_, that is, the county and state in which the affidavit is made, and to take the oath before a notary or other official authorized to take such oath in that locality (not merely a justice of the peace). The affiant's and notary's names should be signed exactly as written into the body of the affidavit, and the seal should correspond exactly with the name of the official and the _venue_. The signature of the affiant and of the notary and the seal are all necessary to validate the affidavit. The names and other writing should be written plainly, and the affiant should make sure to read the affidavit and compare it with the application and with the book. {Sidenote: Forfeiture by false affidavit} In case of false affidavit, forfeiture of copyright is provided (sec. 17) as follows: "That any person who, for the purpose of obtaining registration of a claim to copyright, shall knowingly make a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited." {Sidenote: Exact compliance necessary} The affidavit clause is exact and specific. It may be made either by the printer or the publisher. This exacting and drastic addition to the manufacturing clause met with strong opposition from the friends of copyright, particularly authors and book publishers, as unnecessary and unreasonable, but was successfully insisted upon by the representatives of the typographical unions. The voiding of copyright because of a false affidavit by a printer or publisher, which might even be mistakenly made and of which the author would have no cognizance, was opposed as especially unjust to authors and out of keeping with the rest of the law. Under the statute as enacted, this provision must be exactly complied with, and the courts would doubtless enforce it to the letter. {Sidenote: Importation questions} The manufacturing provision of 1891 and its extension in the code of 1909 have raised important and difficult questions as to the time at which these provisions become effective in relation with copyrights previously existing. It was claimed by Benziger Brothers, as proprietors of a copyright American edition of the "Key of Heaven," that an edition of sheets printed in America previous to the law of 1909 and sent abroad for binding, could be re-imported notwithstanding the new provision against binding, but the decision of the appraisers at New York against this claim was upheld by the Secretary of the Treasury, under advice of the Attorney-General, and the courts have not yet had occasion to pass on the question. This ruling indicates that since July 1, 1909, copyright could not be maintained on any book unless type-set, printed and bound completely within the limits of the United States, and that any copyrighted books, partly manufactured in the United States, but bound and otherwise completed abroad since July 1, 1909, must be denied importation. It has been decided, however, by the Attorney-General, that the manufacturing requirement as to binding refers only to the original, and that copyright books rebound abroad cannot be denied importation. Also it has been held that a foreign translation of a copyright work, for which translation American copyright is not claimed, cannot be refused importation. The provisions supplementing the manufacturing clause by prohibiting importation are given in the chapter on importation. {Sidenote: Foreign manufacturing provisions} Holland is the only country in Europe which requires that the deposit copies shall be printed within the country and thus makes manufacture a condition of copyright--an inheritance probably from the times when the printer-publishers of the Protestant Netherlands were the only ones printing the books barred in Catholic countries by the _index expurgatorius_, and when deposit was naturally required from them. The law covered the Dutch West Indies, and the precedent was followed in Siam; and in the Transvaal and Orange State the Dutch law continued after they had become English colonies. Otherwise than in these countries, only the British dominions of Canada and Newfoundland and the Commonwealth of Australia have manufacturing provisions. Canada made such provision as to domestic copyright in 1886 and again in the act of May 2, 1889, which last provides that a literary, scientific, musical or artistic work shall, before or simultaneously with publication or production elsewhere, be registered in the office of the Minister of Agriculture, and be printed or published or produced in Canada within one month after publication or production elsewhere. Newfoundland in its statute of 1892, following our own of 1891, provided similarly that the condition for obtaining copyright shall be that the literary, scientific or artistic work shall be printed and published or produced in this colony. Australia, under the new code of 1905, confines domestic copyright to books (inclusive of drama) "printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used," and in an artistic work to those "made in Australia." {Sidenote: English patent proviso} Unfortunately, the precedent of our copyright act of 1891 has since been followed in England in the patent and designs act of 1907, which provides (sec. 27) that a patent may be revoked after four years "on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the United Kingdom." Such a provision had been a feature of the patent laws of Germany, Canada and other countries, but it is new in British law and has evoked strong protest from American patentees, notwithstanding that it is parallel with our manufacturing provision with respect to copyrights. XI DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT {Sidenote: Dramatists' and composers' rights} The dramatic author and the musical composer receive recompense for their creative labor not so much from publication of their works in the printed form of a book as through their performance or representation, when protected as playright or performing right, as the artist receives remuneration not only for the reproduction and sale of copies, but also from the exhibition as well as sale of his original work. Dramatic and musical copyright, in the wide sense, therefore, covers copyright in the specific sense and playright, as to which latter common law rights especially need statutory protection. {Sidenote: American provisions} In the protection of dramatic and musical compositions the new American code specifically provides not only for copyright, but for playright or right of performance. Under subject-matter of copyright (sec. 5) such works are classified as "(d) Dramatic or dramatico-musical compositions; (e) Musical compositions"; and the Copyright Office Rules and Regulations further define these classes as follows: {Sidenote: Copyright Office definitions} "8. _(d) Dramatic and dramatico-musical compositions_, such as dramas, comedies, operas, operettas and similar works. "The designation 'dramatic composition' does not include the following: Dances, ballets, or other choregraphic works; tableaux and moving picture shows; stage settings or mechanical devices by which dramatic effects are produced, or 'stage business'; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of moving pictures or of settings for the production of moving pictures. (These, however, when printed and published, are registrable as 'books.') "9. _Dramatico-musical compositions_ include principally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung. "Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramatico-musical compositions. "10. _(e) Musical compositions_, including other vocal and all instrumental compositions, with or without words. "But when the text is printed alone it should be registered as a 'book,' not as a 'musical composition.'" {Sidenote: Rights assured} To dramatic and musical authors are given (sec. 1) in addition to the general right, granted in subsection "(a) To print, reprint, publish, copy and vend the copyrighted work," the specific exclusive rights: "(b) ... to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work;... {Sidenote: Dramatic rights} "(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever; {Sidenote: Musical rights} "(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced";--to which provision of subsection (e), in respect to copyright control of mechanical records, are added provisos that such control shall not extend to compositions published and copyrighted before July 1, 1909, and works of foreigners whose state does not grant similar right to American citizens, and shall be subject to compulsory license arrangements, requiring that if the author permits any mechanical reproduction, he shall license any manufacturer under conditions stated in detail in the act, all of which exceptions and conditions are fully stated in the chapter on mechanical music provisions. {Sidenote: Excepted performance} An exception to these exclusive rights is, however, made in the proviso (sec. 28) "_Provided, however_: That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit." This proviso is singularly defective in phraseology, as the phrase "octavo choruses" has no musical significance and uses a music-trade term to designate choruses usually but not necessarily published in octavo form; and the duplication of the words "public school," etc., is probably a verbal error in the bill which mistakenly became part of the law. The proviso is doubtless intended and would fairly be construed to permit gratuitous unauthorized performance of religious or secular works such as oratorios, cantatas, masses, and choruses by public schools, church choirs, school choirs or vocal societies, from copies rented, borrowed, or obtained from some public library, provided the performance is given for charitable or educational purposes and not for profit. Curiously the letter of the proviso would seem to provide that the beneficiary organization cannot perform from a purchased copy, but only from copies rented, borrowed or "obtained from" some public source; but this also is an evident error. {Sidenote: Performance "for profit"} It should be noted that the omission from subsection (d) as to drama and the inclusion in subsection (e) as to music, of the words "for profit,"--doubtless with the intent of assuring to the individual purchaser of music the right to perform it privately,--have significance here, and serve, it would seem, to give the dramatic author absolute control even over gratuitous performances and to limit the control of the musical author to performances which are not gratuitous, a negative provision covering, and giving much wider latitude than, the proviso (sec. 28) above cited. But as dramatico-musical compositions are classified (sec. 5, d) with dramatic compositions, and an oratorio and possibly a cantata might be considered as a dramatico-musical composition, the proviso (sec. 28) may have a specific effect as to this kind of dramatico-musical compositions. The law is unfortunately defective and confusing by reason of this proviso and will be so difficult of judicial construction as to suggest the omission, by amendment, of this proviso. The use of the word "public" in both cases implies that the author cannot control private representation and opens other questions difficult of judicial interpretation. {Sidenote: Works not reproduced} It is provided (sec. 11): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be ... a dramatic or musical composition"; provided that the required deposit of two copies shall be made, as in the case of books, on publication thereafter by the multiplication and public sale or distribution of copies. {Sidenote: Copyright notice} The notice of copyright must be printed (sec. 18) on each copy, as in the case of a book in the form "Copyright" or the abbreviation "Copr.," "accompanied by the name of the copyright proprietor" and "the year in which the copyright was secured by publication." In the case of a published dramatic work the notice must be placed, as in the case of a book, upon the title-page or the page immediately following, but in the case of a published musical work the law provides that the notice "shall be applied ... either upon its title-page or the first page of music," and this specification makes the copyright notice of doubtful validity if applied in a musical work on the page following the title-page, unless this is the first page of music. {Sidenote: Dramatico-musical works protected from mechanical reproduction} The classification of dramatico-musical compositions under subsection (d) as dramatic works and not under subsection (e) as musical compositions, defines an opera and possibly an oratorio or cantata as a dramatic rather than a musical composition. As the dramatic author is given (sec. 1, d) the comprehensive rights over reproduction "in any manner or by any method whatsoever" while the musical author is limited (sec. 1, e) in respect to mechanical reproductions, it would seem to follow that the author of an opera may retain absolute control over mechanical reproduction, as the author of a non-musical drama retains absolute control over phonographic or other reproduction of his drama. This would seem to confine the requirements that the author of a musical composition permitting mechanical reproduction should license any manufacturer, to musical compositions which are not dramatic, _i. e._, to instrumental compositions or to songs and other vocal music not associated with drama. As an overture to an opera is an integral part of the dramatico-musical composition, it would even seem that an overture which is part of an opera, or possibly an orchestral introduction or interlude in an oratorio or cantata, would not be subject to the mandatory license provided as to musical compositions. But this question has not yet come before the courts. {Sidenote: Dramatic and musical works excepted from manufacturing provisions} Dramatic and musical works are not mentioned in the manufacturing and affidavit provisions (secs. 15, 16, 17) which are specifically confined to "the printed book or periodical specified in section 5, subsections (a) and (b)," while dramatic and musical compositions are classified in subsections (d) and (e). It might be alleged that dramatic or musical compositions in book form or produced as books from type or by lithographic or photo-engraving process should be classified as books and subjected to the manufacturing provisions; but this is distinctly not the letter of the law. This exception was specifically upheld for music in the case of Littleton _v._ Ditson in 1894, by Judge Colt in the U. S. Circuit Court in Massachusetts, where the defense that there was no copyright in certain songs because the music sheets were not from type set or plates made within the United States, was overruled; and for drama in Hervieu _v._ Ogilvie in 1909, where in the U. S. Circuit Court in New York, Judge Martin cited with approval Judge Colt's decision. This ruling was also embodied in Treasury decision No. 21012 of April 17, 1899, permitting the importation of musical compositions copyrighted in the United States and printed abroad. {Sidenote: British colonial practice} The Australian law, on the contrary, specifically includes under the definition of "book," a "dramatic work" and a "musical work," and thus subjects both to the manufacturing clause. Printing and publishing are required in Canada ("within one month after publication or production elsewhere") and in Newfoundland to obtain copyright under the local acts; and as drama is not mentioned but included generically as a book or literary composition, and music is specifically included, both dramatic and musical compositions must be manufactured within each country to obtain local, as distinguished from British or Imperial, protection. {Sidenote: Entry under proper class} {Sidenote: Applications and certificates} The author of a dramatic, dramatico-musical, or musical composition should therefore be careful to make application in the United States under class (d) or (e) and not as a book under class (b). The fact that the law classifies under subsection (d) dramatic or dramatico-musical compositions and under subsection (e) musical compositions, has caused the Copyright Office to prepare separate application forms and certificates for (D1) a dramatic composition, (D3) a dramatico-musical composition and (E1) a musical composition, "published"; as also for (D2) a dramatic composition (or a dramatico-musical composition) and (E2) a musical composition, "not reproduced for sale." It would seem advisable therefore that the author of an opera, oratorio or the like, to obtain the fullest protection under the law, should enter such work in class (d) as a dramatico-musical composition rather than in class (e) as a musical composition, and thus safeguard himself against the mechanical music proviso applied exclusively to class (e). {Sidenote: Right of dramatization} In regard to dramatization, the new American code is specific (sec. 1, b) in giving to the author of an original work the exclusive right "to dramatize it if it be a non-dramatic work" or "to convert it into a novel or other non-dramatic work if it be a drama." The relations of a maker of a dramatic version of a literary work or of a literary version of a dramatic work, would follow the same rule as in the case of a translator. An author has the exclusive right to dramatize or permit the dramatization of his work, and the dramatization may be copyrighted in the name of the original author or of the dramatizer, but the dramatizer cannot prevent another dramatization of the same work unless by transfer of exclusive right from the original author. {Sidenote: Dramatization term} The specific copyright on a published dramatization dates from the publication of the dramatization, which may extend the protection of the dramatization beyond the copyright term of the original work. But on the expiration of the copyright in the original work rival dramatizations can no longer be prevented. All this holds true as to the novelization of a drama. {Sidenote: Musical arrangements} In respect to music, the language of the law (sec. 1, e) is thoroughly comprehensive in covering the arrangement or setting of a musical composition or of a melody in any notation or in any form whatever. This gives to the musical author entire control over the use of any part of his work, as for instance the transcription from an orchestral work for piano use, the instrumentation of a vocal work or the use for a song of any melody in an orchestral work. On the other hand, variations, transcriptions and so forth of a copyrighted work, made under authorization from the copyright proprietor, may be separately copyrighted as to that extent original works. {Sidenote: Copyright Office definitions} The Copyright Office Rules and Regulations say specifically: "(10) 'Adaptations' and 'arrangements' may be registered as 'new works' under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made." {Sidenote: Transposition} In Hein _v._ Harris in 1910, the U. S. Circuit Court awarded damages where the chorus of a song proved on transposition into the key of the copyright song to be practically a copy of the melody. {Sidenote: Works in the public domain} It is specifically provided (sec. 6) that "adaptations, arrangements, dramatizations ... or other versions of works in the public domain, ... shall be regarded as new works subject to copyright," and in the case of such versions copyright inheres in the dramatizer, adaptor or maker of a version, as in the case of a translator of a book, in the public domain. Thus a dramatic or musical work in the public domain may be dramatized or adapted freely and any individual dramatization or adaptation may be copyrighted by the dramatizer or adaptor, but he cannot prevent other dramatization or adaptation of the same work. {Sidenote: Dramatization right protected by courts} The American courts have fully upheld the control over dramatization under the right "to dramatize" specifically given in the law of 1891 and preserved under the new code. In 1895 in Harper _v._ Ranous, Judge Lacombe, in the U. S. Circuit Court in New York, enjoined a play, "Trilby," on the ground that the drama "presents characters, plot, incidents, dramatic situations and dialogue appropriated from Du Maurier's copyrighted novel," while denying protection against the mere use of the title. In the same year and in respect to the same novel, in Harper _v._ Ganthony, the Harpers, as owners of the copyright of "Trilby," also obtained from Judge Lacombe an injunction against Miss Ganthony, who had presented at the Eden Musée a series of monologues in costume following the plot of the story, which the judge held to constitute a dramatic version and therefore an infringement. A story, "The transmogrification of Dan," purchased by the _Smart Set_ for $85, copyrighted as part of that periodical and assigned back to the author, was dramatized by Paul Armstrong and produced by the defendants under the name of "The heir to the Hoorah," retaining the central incident of the story, though with modification and extension of the characters, situation and dialogue. In 1908 Judge Hazel, in Dam _v._ Kerke La Shelle Co., in the U. S. Circuit Court in New York, awarded the full profits from the dramatic representation as damages to the executor of Dam, the author of the story; which decision was fully upheld in 1910 by the Circuit Court of Appeals through Judge Noyes. Thus the new American code specifically enacts into statute law previous decisions of the American courts. {Sidenote: English law and practice} Under English law, on the contrary, the right of dramatization has not been included under copyright; the mere copyrighting of a book could not prevent its dramatization, but the copyrighting of a work in dramatized form before its publication as a novel practically prevented other dramatization of the literary work in so far as the one drama was a reproduction of the features of the other. As stated by Colles and Hardy in their recent work (1906) on "Playright and copyright in all countries," "a novel is not a dramatic piece, ready and fit for representation on the stage. Consequently, the author of a novel has the copyright in his book, but he has no playright according to English law." The general principles were best stated in 1874 by Chief Justice Cockburn in Toole _v._ Young, where Grattan's drama "Glory" was declared not to be an infringement either of Hollingshead's novel "Not above his business," on which it was confessedly founded, nor of the dramatic version made under the title of "Shop" by Hollingshead himself, but never printed or performed and therefore unpublished: "Two persons may dramatize the same novel, for that is common property. It is true that a writer cannot produce and represent a drama, which he has borrowed from a drama written previously by another person; he would then be representing the production of the first dramatist.... I wish to guard myself against being supposed to lay down that, if a writer, while dramatizing a novel, takes the incidents, characters, and dialogue of a previous drama founded upon that novel, and reproduces what is in substance identical with the previous drama, there might not be an infringement of the right of the earlier dramatist if the later drama be represented on the stage." {Sidenote: The new British code} The new British measure remedies this defect by specifically including the sole rights to convert a novel or other non-dramatic work, or an artistic work, into a dramatic work, by way of performance in public or otherwise, and to convert a dramatic work into a novel or other non-dramatic work. {Sidenote: Infringement cases} A curious early case was that of Reade _v._ Conquest in 1862, in which the son of Charles Reade had made and sold to the defendant, who produced it at his theatre, a dramatic version of "It is never too late to mend" in ignorance of the fact that his father had first written a play called "Gold" and had then transformed that into the novel; in this the defendant was enjoined because the version which he produced infringed the earlier play. In Beere _v._ Ellis in 1889, Baron Pollock enjoined a rival dramatic version of "As in a looking glass" on the ground that while bits of dialogue, presumably copied into the defendant's version, were scarcely substantial, yet a special situation founded on a new incident not in the novel and certain stage business connected with the death of the heroine constituted an infringement. In 1890, in Schlesinger _v._ Turner, the executors of Wilkie Collins obtained an injunction against a rival dramatic version of "The new Magdalen," the judge holding that although the defendant's version had not been copied from the author's own play, it was substantially similar and therefore an infringement. That an independent and different dramatic version can, however, be made, was specifically held in the case of Schlesinger _v._ Bedford in the same year, when Collins's executors failed to obtain an injunction against the defendant's rival dramatic version of "The woman in white," although the novelist himself had previously dramatized his work, the judge holding that the two plays were "essentially different." {Sidenote: Use of substantial quotations} But the use in a play of considerable portions of a copyrighted novel would be an infringement. That a dramatization using substantial parts of a novel infringes the novel, was definitely established in 1863 in Tinsley _v._ Lacy, where the proprietor of Miss Braddon's "Lady Audley's secret" and "Aurora Floyd" obtained an injunction against a bookseller who sold dramatizations under the same titles of which a quarter or more of the text was taken bodily from the novels. So in 1888 an injunction was obtained from Judge Stirling, in Warne _v._ Seebohm, in the Court of Chancery, against a dramatization of "Little Lord Fauntleroy" which copied from the novel beyond the limits of fair use and was therefore considered a "copy" from the work. {Sidenote: Specific scenes or situations} Where in dramatizing a novel, the dramatic author invents and introduces new scenes, situations or other features, the copying of such added features into another dramatic version of the novel, otherwise independent, constitutes an infringement of the original play. In the case of Nethersole _v._ Bell in 1903, with respect to rival English dramatic versions of Daudet's "Sapho," it was held that while there might lawfully be independent dramatizations of the novel, the circumstances indicated that the Espinasse version of the defendant, said to have been written in Australia, had been so modified consequent to representation of Clyde Fitch's version, as to constitute an infringement of the plaintiff's rights. In Tree _v._ Bowkett in 1896, plaintiff obtained an injunction against the use by the defendant in a rival dramatic version of "Trilby" because of two scenes introduced by the plaintiff into his drama which were not in the novel or in the American dramatization. On the other hand, in Chatterton _v._ Cave in 1876, where the plaintiff had dramatized Eugene Sue's "The wandering Jew" and added two scenes not in the novel, an injunction was denied by Lord Chief Justice Coleridge against an independent dramatization, though it had included similar scenes, on the ground that these were not sufficiently substantial and material in the play to constitute an infringement. And this application of the principle of _de minimis non curat lex_ was affirmed by the House of Lords in 1878. {Sidenote: What is a dramatic composition} {Sidenote: Judge Blatchford's opinion} As to what is a dramatic composition or representation, no definition is given in the American law, and the English laws of 1833 and 1842, quoted beyond, are not explicit. Both English and American courts have therefore been obliged to make or to extend definitions, but the decisions have been somewhat confusing. The most explicit general statement is that made by Judge Blatchford in discussing Daly _v._ Palmer in 1868: "A composition, in the sense in which that word is used in the act of 1856, is a written or literary work invented or set in order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. When a dramatic composition is represented in dialogue and action by persons who represent it as real by performing or going through with the various parts or characters assigned to them severally, the composition is acted, performed, or represented; and if the representation is in public, it is a public representation. To act in the sense of the statute is to represent as real by countenance, voice, or gesture that which is not real. A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to motions and gestures, uses his voice. A pantomime is a species of theatrical entertainment, in which the whole action is represented by gesticulation without the use of words. A written work consisting wholly of directions, set in order for conveying the ideas of the author on a stage or public place by means of characters who represent the narrative wholly by action, is as much a dramatic composition designed or suited for public representation as if language or dialogue were used in it to convey some of the ideas." {Sidenote: Judicial definitions} In a recent case of Barnes _v._ Miner in 1903, where an injunction was asked against a vaudeville change artist who had combined songs in costume with a cinematograph representation of scenes in the dressing room during the changes, Judge Ray, in the U. S. Circuit Court in New York, declined to grant relief, adding that as a mere spectacular composition such "sketch" was not properly a dramatic composition. The English law was construed in 1848 in Russell _v_. Smith, when a song "The ship on fire," in which dramatic action was exhibited by the singer alone without costume or scenery, while seated at the piano, was construed to be a "dramatic piece"--the action being "not related but represented." In 1872, in Clark _v._ Bishop, a music hall song "Come to Peckham Rye" was similarly protected as a "dramatic piece." But in 1895, in Fuller _v._ Blackpool Winter Gardens Co., it was held that the song "Daisy Bell," though sung in character costume, was not a "dramatic piece" because its representation did not require acting or dramatic effect. Later decision construed the act of 1833 to cover only spoken words, the English Court of Appeal holding in Scholz _v_. Amasis in 1909, through Lord Chief Justice Farwell, that only substantial copying of written dialogue, and not of a plot or situation, constitutes infringement, and in Tate _v._ Fullbrook in 1908, that the writer of the dialogue is the sole author of the musical sketch though devised and staged by another. But in two cases, one by Moore in 1903 and one by Fraser in 1905, against George Edwardes, English juries gave heavy damages where the scenarios for musical comedies submitted to that theatrical manager had been made the basis for musical comedies by other writers afterward produced at Daly's Theatre, London. {Sidenote: Moving pictures may be infringements} The opinion of Judge Blatchford was quoted and followed by the U. S. Circuit Court of Appeals in New York, in 1909, in Harper _v._ Kalem Co., which said through Judge Ward: "The artist's idea of describing by action the story the author has written in words is a dramatization. It is not necessary that there should be both speech and action in dramatic performances although dialogue and action usually characterize them." In this case the defendants had caused persons to represent the action in certain scenes of "Ben Hur" and photographed this representation on a moving picture film, which they reproduced for sale to theatoriums, where public exhibitions were given for profit. The court held under the old law that "moving pictures would be a form of expression infringing the author's exclusive right to dramatize his writings and publicly to perform such dramatization." The contrary view was held in the English case of Karno _v._ Pathé Frères in 1908, where also the Court of Appeal held, in 1909, that not the manufacturer but the exhibitor of such a film would be the responsible party if there were infringement. {Sidenote: Literary merit not requisite} The doctrine that copyright does not depend on literary merit, was strengthened in a dramatic case in Henderson _v._ Tompkins in 1894, in the U. S. Circuit Court in Massachusetts by Judge Putnam, who held that a paraphrase of "I wonder if dreams come true," from "Ali Baba," constituted an infringement, though the offending piece had slight literary merit. {Sidenote: What is a dramatico-musical composition} As to what is a musical composition, the term defines itself. But the phrase "dramatico-musical compositions," as used in the American code, bristles with perplexities, not altogether solved by the definitions of the Copyright Office Rules, above cited. It means, of course, music and drama in association, but in this combination the definition of the dramatic side is peculiarly difficult. Whether a dance, ballet or other choregraphic work, with or without music, is included, is a mooted question. In 1892, in Fuller _v._ Bemis, where the plaintiff sought to protect a skirt dance of which she had filed a description for copyright as a dramatic composition, Judge Lacombe, in the U. S. Circuit Court in New York, held that: "It is essential for a dramatic composition to tell some story. The plot may be simple, it may be but the representation of a single transaction; but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary. A series of graceful movements, combined with an attractive arrangement of drapery, lights, and shadows, telling no story, portraying no character, depicting no emotion, is not a dramatic composition." This view is adopted in the Copyright Office Rules and defines accepted American practice, but is not consonant with English and international views. {Sidenote: The new British code} The new British measure is definitely comprehensive and specific in including as a dramatic work "any piece for recitation, choregraphic work or entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character." {Sidenote: Protection of playright} It is evident that the methods for securing copyright for published dramatic and musical works are in general the same, with exceptions noted in this chapter, as for literary works, that is, publication with copyright notice and registration with deposit promptly after publication of two copies of the best edition then published, with a fee of one dollar. Copyright in the specific sense is, however, of less importance to the dramatic or musical author, as has already been pointed out, than playright or performing right, which is also covered and protected specifically by the code of 1909, though in less accurate, definite and satisfactory provisions, involving in some respects serious questions. The right at common law or in equity to prevent the copying, publication or use of an unpublished work and to obtain damages therefor, is specifically confirmed (sec. 2), and this applies especially to unregistered manuscripts. {Sidenote: Protection of unpublished work} The method of registration of an unpublished work to secure playright or performing right, as previously stated, is absolutely simple, consisting solely in the registration of a claim and the deposit of one copy of the work in manuscript or other unpublished form, with a fee of one dollar. The law is clear and satisfactory as to the punishment, after such registration, of infringement of playright or performing right, but it is not clear as to the date from which such protection starts, and whether protection is for an indeterminate period up to publication (practically in perpetuity if no publication be made), or for the statutory term. This is because the relations of publication and first performance are inferences only and specifically defined in the law. The Copyright Office issues a certificate for twenty-eight years, but without reference to initial date, which would be presumably the date of the certificate. The Copyright Office will doubtless, under this precedent, issue renewal certificate for the second term of twenty-eight years. The trend, and in several instances the letter of the law, shows publication to mean the multiplication or reproduction of printed or other copies and their public offering, sale and distribution, and indicate that performance, whether privately or publicly and for profit, is not publication. The new Copyright Office Rules specifically hold that: "Representation on the stage of a play is not a publication of it, nor is the public performance of a musical composition publication." Judicial decisions on this point both in England and this country are confusing if not contradictory. In the absence of specific provision in the law for renewal of term in unpublished works, the view that the grant of the statute is for protection under the common law rather than a statutory and limited grant of privilege, is defensible and may be upheld by the courts, should a case arise. No case is likely to arise for twenty-eight years from the time of first copyright, under the act, of an unpublished work; but the dilemma will then present itself to the author whether he should apply for a renewal term and thus accept the limitations of the statute, or rely upon the original registration as a protection in perpetuity up to the time of publication. Possibly before that time this difficult point may be made clear by supplementary legislation. {Sidenote: Indeterminate protection} The most serious argument against the view that unpublished works may be protected indeterminately, is founded on the provision of the Constitution authorizing Congress to grant protection for limited terms, as to which the view may be upheld that Congress is not here making a grant, but is offering statutory protection to the inherent right of an author in an unpublished work. In any event the author has clear rights for twenty-eight years from the date of publication or the date of first performance, whichever the earlier. In case of publication, it is altogether probable that the playright or performing right will be construed by the courts to lapse at the end of the copyright term and renewal thereof of the published work, and in case a "book of the play" or libretto of an opera is printed for sale within a theatre in connection with the performance, that will undoubtedly constitute publication and such copies should be copyrighted. {Sidenote: Printing and performance} The doctrine that performance is not publication was upheld by the N. Y. Court of Appeals in Palmer _v._ DeWitt in 1872, in which the assignee of the manuscript and playright of Robertson's drama "Play" was granted an injunction against the printing of the drama, although it had been publicly performed, but not printed, in London. The same doctrine was applied in the Illinois Supreme Court in 1909 in Frohman _v._ Ferris. But publication abroad, by the printing of a drama unless protected under the international copyright provisions, has been held to forfeit the common law playright transferred with an unpublished manuscript, by the decision in Daly _v_. Walrath in 1899, by Judge Bartlett in the N. Y. Supreme Court, when an injunction was refused against the performance of Sudermann's "Die Ehre," translated as "Honor," because the author had printed the play in Germany despite a contract with the American assignee to refrain from publication. In the case of Wagner _v._ Conried in 1903, in the U. S. Circuit Court in New York, Judge Lacombe declined to enjoin a production of "Parsifal," holding that the publication of a printed edition by Schotts in Germany had forfeited playright, since the reservation by Wagner in his contract with Schotts of the acting rights was not applicable in this country. The printing of a dramatic manuscript solely for the use of the players is not publication, as was held in French _v_. Kreling, in 1894, by Judge Hawley in the U. S. Circuit Court in California, where Farnie's opera "Falka," of which the musical score had been published, but the libretto printed only for the singers, was protected as an unpublished manuscript. {Sidenote: English confusion} {Sidenote: Specific English provisions} The English law as to dramatic and musical copyright and playright and performing right, has been most confusing if not contradictory, and authorities differ, as do MacGillivray and Scrutton, in its interpretation. Whether public performance constitutes publication or whether they are separable and separate events has been diversely treated in the laws, by the judges and in legal text-books. The dramatic copyright act of 1833, known as Bulwer-Lytton's act, a clumsy attempt to clear up earlier uncertainty, provided that the author of "any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, composed, and not printed and published," shall have "the sole liberty of representing in any part of the British Dominions"; "and the author of any such production, printed and published," shall, "until the end of twenty-eight years from ... such first publication" or for life, have "the sole liberty of representing ... as aforesaid." The general copyright act of 1842 specifically applied this previous act also to "musical compositions" and enacted "that the sole liberty of representing or performing ... any dramatic piece or musical composition" shall "endure ... for the term in this act provided for ... copyright in books," that is, for forty-two years or life and seven years; and the provisions of the act as to copyright and registration were extended to representing or performing, "save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this act to the first publication of any book." The "copyright (musical compositions) act" of 1882 added the requirement, that in the case of a musical composition, to retain the performing right, notice of reservation should be printed on the title-page of every published copy, and the act further provided that the proprietor of the performing right, if the owner of the copyright be another person, may require him to print such notice of reservation, for neglect of which he shall forfeit twenty pounds. {Sidenote: Probable effect} Thus common law rights, it would seem, in an unpublished and unperformed dramatic or musical work were given, pending publication, statutory protection, apparently in perpetuity, from the date of composition. Publication of a dramatic or musical composition in printed form ensured copyright protection as a book for forty-two years or life and seven years; and performing right was protected for forty-two years from "the first public representation or performance of any dramatic piece or musical composition" or life and seven years, whichever the longer. {Sidenote: Publication prior to performance} It had been the view of many English authorities that publication in printed form as a book before the first public performance forfeited performing rights, which opinion was shared by the Royal Copyright Commission as voiced in the report of 1878 in the digest of Sir James Stephen, who said: "The exclusive right of representing or performing a dramatic piece or musical composition cannot be gained if such dramatic piece or musical composition has been printed and published as a book before the first representation thereof." But in the later case of Chappell _v._ Boosey in 1882, in respect to John Oxenford's play of "The bellringer," which had been printed and published previous to performance, it was held in the Court of Chancery that publication as a book before performance does not take away performing rights. On musical compositions, however, the performing right is forfeited on publication in print unless notice of reservation is printed on the published copies. There remain the difficult questions whether when publication precedes performance the statutory protection of the performing right extends beyond the forty-two years from publication and whether copyright and playright should be separately registered. It has been the practice of English dramatists to give a so-called "copyright performance" at a minor theatre, in which actors walk and talk through the drama and the public is invited to pay a shilling at the box office--and sometimes given half a crown apiece for the purpose; which performance, though probably not necessary to fulfill any legal requirement, permits registration of first performance at Stationers' Hall and gives useful public notice to possible infringers. {Sidenote: The new British code} This uncertain and confused situation will be remedied under the new British measure by the inclusion under "copyright" of the right "to perform ... to deliver, in public" and the making of the copyright term the "life of the author and fifty years after his death," which together afford the simplest and most complete protection of playright as incident to copyright. {Sidenote: British international protection} The international copyright act of 1844 contained the provision "that neither the author of any book, nor the author or composer of any dramatic piece or musical composition ... which shall ... be first published out of her Majesty's dominions, shall have any copyright therein respectively, or any exclusive right to the public representation or performance thereof, otherwise than such, if any, as he may become entitled to under this act,"--a provision inserted probably for advantage in negotiating reciprocal conventions with other countries. This provision was applied in 1863, in the case of Boucicault _v._ Delafield, to a British author whose play had been first printed and published as well as performed in America. In Boucicault _v._ Chatterton in 1876, the Chancery Division held that the prior performance of "The Shaughraun" in New York was publication and deprived the author of playright in England,--which again seems incompatible with the doctrine upheld in the later case of Chappell _v._ Boosey, above cited. Great Britain is the only country in the International Copyright Union which has declined to accept the declarative interpretation made in Paris in 1896 of the Berne convention of 1886, declaring that performance does not constitute publication. Thus if a dramatic or musical work is first publicly performed outside the British dominions, the performing right is extinguished therein, unless protected under the international copyright acts, though first publication outside the British dominions of a work first publicly performed within them, may not extinguish the performing right. {Sidenote: Statutory ambiguity} The confusion of judicial interpretations, as to the relations between performance and publication, in international as well as domestic copyright, was invited by the unfortunate draftsmanship in the copyright act of 1842, in which the clause making first performance "equivalent in the construction of this act to the first publication of any book" may be taken either in a comprehensive sense or merely as defining the starting-point for performing right as well as for copyright in the specific sense. {Sidenote: What is public performance} The question of what is public performance is of some importance, especially in Great Britain, where playright is not infringed except by representation in a place of dramatic entertainment and where it has been held that any place in which a dramatic piece is publicly performed is for the time a place of dramatic entertainment. A public performance is probably one to which the public in general is admitted either by sale of tickets or by invitation; and this would probably include a performance given before a society to membership in which the public might be admitted, although a performance limited to a certain class of the public might not be construed as a public representation. Where "Our boys" was performed at Guy's Hospital, London, by an amateur company, for nurses and others connected with the hospital specially invited, it was held in 1884, in Duck _v._ Bates, that though a performance may be public where the public are present, although no money is taken, yet the production in question was not a public representation. In this leading case, important as a precedent for America as well as in England, the decision was made by Justices Brett, M. R., and Bowen, L. J., Justice Fry dissenting, and the Master of the Rolls, in an elaborate opinion, discussed the relations of private and public performance, as a question of fact: "In order to entitle the author to penalties there must be a representation which will injure the author's right to money; such, for instance, as a representation which, although it is not for profit, would attract persons who are willing to pay money, and would induce them not to go and see a performance licensed by the author.... The representation must be other than domestic or private. There must be present a sufficient part of the public who would go also to a performance licensed by the author as a commercial transaction.... I wish to say, by way of warning, that those who go beyond the facts of the present case may incur the penalties of the statute." {Sidenote: Manuscript rights} Common law rights in an unpublished manuscript of an unperformed work, cover both copyright and playright. In 1894, in Gilbert _v._ Star, while the comic opera "His Excellency" was in manuscript and under rehearsal, Justice Chitty in the Court of Chancery granted an injunction against a newspaper report of the plot and incidents on the common law ground that its communication to the newspaper involved a breach of contract, thus confirming the right of an author to full control of his manuscript work for copyright as well as playright, upheld in Prince Albert _v._ Strange in 1849. But a dramatic author cannot enjoin a drama, however similar, completed before the publication or performance of his own work, as was decided in the case of Reichardt _v._ Sapte, in 1893, where the author of "The picture dealer" was denied relief against the closely parallel play "A lucky dog," which was proved to have been completed in 1890, though not performed until after the writing and presentation of the author's play in 1892. {Sidenote: American cases} The right of control of an unpublished dramatic manuscript under common law was strengthened in Herne _v._ Liebler, in 1902, by the decision of Judge Ingraham in the N. Y. Supreme Court, which upheld the right of the plaintiff to prevent sub-license of a play beyond the terms of the contract by a licensee, who had agreed to keep the manuscript unpublished and use it only under specific limitations. In the case of Maxwell _v._ Goodwin, in 1899, where the plaintiff's play of "Congress" had been rejected by the defendant, who afterward produced a play "Ambition," also founded on scenes in Washington, Judge Seaman in the U. S. Circuit Court in Illinois overruled the defendant's contentions that there was no playright under common law in an unpublished manuscript and that there was no inherent property right in ideas or creations of the imagination apart from the manuscript in which they are contained or the language in which they are clothed; though an injunction was denied on proof that the defendant had not read the plaintiff's manuscript and that the actual author of "Ambition" had no knowledge of the plaintiff's play. {Sidenote: Unpublished orchestral score} In 1883, in Thomas _v._ Lennon, where Gounod's "Redemption," of which the orchestral score was unpublished, had been rewritten for orchestra from a published non-copyright piano arrangement, Judge Lowell, in the U. S. Circuit Court in Massachusetts, ruled against this as an infringement of the unpublished work on common law grounds--but this decision has not been considered good law. {Sidenote: Dramatic work by employee} Copyright in dramatic work can be obtained, as in the case of encyclopædic and like works, by the employment for hire of a dramatic author, as was fully established in the case of Mallory _v._ Mackaye in 1898, by Judge Wheeler in the U. S. Circuit Court in New York, where Mackaye had contracted for a salary of $5000, that all inventions and plays by him within the ten years of the contract should belong to Mallory, and was restricted accordingly from the independent production of "Hazel Kirke." {Sidenote: Copyright term} The duration of copyright in dramatic and musical compositions is the same as for books, in the United States (twenty-eight years with renewal for twenty-eight years more), in Great Britain (under the new code life and fifty years), in Australia (forty-two years or life and seven years, as hitherto in Great Britain), and in Canada and Newfoundland (twenty-eight years with renewal for fourteen years more),--as also in most other countries, the new term for those in the International Copyright Union which have accepted the convention of Berlin, being life and fifty years. But in the case of a "dramatico-musical" work, where the libretto and the music are by different authors, the respective terms may end at different dates, as was held in 1905, and upheld in 1909, by the German courts as to the opera "Carmen" under the Franco-German convention limiting copyright to thirty years after death. Bizet, author of the music, had died in 1875, but one of the three librettists was still living, on which facts the court held that the musical score, but not the libretto, was free from copyright. Under the new British and Canadian measures, which include the unusual provision that the copyright term in a work of joint authorship shall be determined by the first instead of the last death, the result would be to the contrary effect. {Sidenote: Registration} Registration in the United States, as also in Canada and Newfoundland, through the deposit of copies, is entirely the same for a dramatic or musical composition as for a book. Registration in England of a dramatic or musical composition under the act of 1842 (sec. 20) was to be made at Stationers' Hall, as in the case of a book, by recording in statutory form the title, the time and place of first publication, or for performing right, of first public performance, and the name and abode of author and of proprietor. But the same law (sec. 24) provided that protection of performing right in a dramatic piece should not be dependent upon entry in the registry and, by including in the definition of a dramatic piece (sec. 2) a "musical entertainment," evidently included musical compositions in this exemption, and thus made registration optional. This view was upheld in 1848 in Russell _v._ Smith, when the song "The ship on fire" was protected as a "dramatic piece," though it had not been registered. The new British measure omits all requirements for registration of any works. Registration of any copyright, performing right or assignment is required in Australia as a prerequisite for legal action. {Sidenote: Assignment} Assignment or grant of a dramatic or musical composition, as of a book, may be made (sec. 42) by an instrument in writing, acknowledged, if in a foreign country, (sec. 43) before a consular or diplomatic officer, and must be recorded (sec. 44) in the Copyright Office within three months, or if made in a foreign country, six months, in default of which it is void as against any subsequent purchaser. Assignment in Great Britain must be in writing, and previous to the new code with entry at Stationers' Hall, in the case of performing right as well as of copyright. It should be noted that playright does not pass with copyright _ipso facto_, though the new code as adopted by the House of Commons has no specific provision on this point. But it is most desirable that in any transfer of copyright or playright the exact nature of the right transferred should be defined in the writing. A partial assignment, or license, of performing right as well as of copyright may be made, and will be protected by the courts. The right to grant a specific license, and to enforce its limitations, was upheld in 1892 in Duck _v._ Mayen, in an English court by Justice Day, who held that where the defendant had obtained license at the price of one guinea to play "Our boys" for charity at a music hall, but performed it elsewhere, though for the same charity, the usual royalty of five guineas must be paid. Assignment in Canada and Newfoundland must be in writing in duplicate copies, of which one must be deposited in the office of copyright. {Sidenote: Parody} The general principles as to infringement and fair use, treated fully in another chapter, apply to dramatic and musical compositions, as already illustrated above, but some special applications may here be noted. That a parody or burlesque may not be an infringement, though including some quotations from the work parodied, was decided in 1903, in Bloom _v._ Nixon,--where Fay Templeton had given a parody or imitation of another actress's singing of "Sammy" in the "Wizard of Oz,"--in the U. S. Circuit Court in Pennsylvania by Judge McPherson, who held that as this was essentially an imitation of personality, it was not an infringement of copyright: "Surely a parody would not infringe the copyright of the work parodied merely because a few lines of the original might be textually reproduced." The judge added: "No doubt the good faith of such mimicry is an essential element; a mere attempt to evade the owners' copyright ... would properly be prohibited" as "doing in a roundabout way what could not be done directly." {Sidenote: Infringement by single situation} There may be infringement of dramatic copyright in the use of a single scene or situation, as already set forth with respect to novels, provided this is of dramatic character. In 1892, in Daly _v._ Webster, the U. S. Circuit Court of Appeals, through Judge Lacombe, held that the railroad rescue scene in Brady's "After dark" infringed the copyright of Daly's "Under the gaslight," which contained the similar situation of the rescue of a person on a railroad track before an approaching train. Though there was little dialogue in this scene, the court held that while mechanical appliances are not entitled to copyright, a series of events dramatically represented are copyrightable. In the subsequent suit for damages, Daly _v._ Brady, the U. S. Supreme Court in 1899, through Justice Peckham, upheld this decision, and held also that such a situation constituted an integral part of the copyrighted drama and should therefore be protected against infringement. That there may be infringement of a dramatic composition without the use of scenery or costumes was incidentally decided in Russell _v._ Smith, where the song "The ship on fire," sung dramatically without these accessories, was protected as a dramatic piece. {Sidenote: Protection of title} While the title of a dramatic or musical composition, like that of a book, cannot be copyrighted as such, the courts seem disposed to emphasize the title as an integral part of a play, perhaps more than in the case of a book because the advertising of another play of like name, especially in the case of one of long run and wide popularity, may mislead the public and involve unfair competition. This protection was upheld as a matter of common law in Aronson _v._ Fleckenstein in 1886, by Judge Blodgett in the U. S. Circuit Court in Illinois, when the use of the title "Erminie" was held to be unlawful, though the operetta originally designated by the title had not been copyrighted. But in Glaser _v._ St. Elmo Co. in 1909, the U. S. Circuit Court denied relief where the title of Miss Evans's novel, then out of copyright, was used for a second and unauthorized dramatization. There may be danger to copyright or playright when a work is published or performed under a title differing from that under which it is copyrighted; but the change of a descriptive sub-title has been held to be immaterial. In the case of Daly's play "Under the gaslight," which in the copyright entry bore the sub-title "A romantic panorama of the streets and homes of New York," but in printed form the changed sub-title "A totally original picturesque drama of life and love in these times," the defendants in Daly _v._ Webster alleged that this change made the copyright invalid, which contention was negatived by the U. S. Circuit Court of Appeals, which held in 1892 that the sub-title was merely descriptive and not an essential part of the title--a principle later applied by Judge Lacombe in Patterson _v._ Ogilvie, in 1902. {Sidenote: Names of characters} In the case of Frohman _v._ Weber in 1903, in the N. Y. Supreme Court, where the proprietor of the play entitled "Sherlock Holmes" sought to enjoin another play "The sign of the four," in which the name Sherlock Holmes designated the leading character, Judge Clarke held that this did not constitute unfair competition and denied a preliminary injunction. {Sidenote: Persons liable for infringement} {Sidenote: Principal in control} The question of the person liable for the infringement, especially of playright, is one of some difficulty. In general, while any one participating in a piratical performance, as an actor, is technically guilty of infringement, it is usually the person or persons responsible for and profiting by the performance who should be sued. The question of responsibility is one of fact, and the early English decisions seem confused and even contradictory. The person who has the initiative and control of a performance, particularly if he is directly the employer of the performers and has authority to discharge them, may be, _par excellence_, the infringer even if he does not know that the performance is piratical. In 1886, in Monaghan _v._ Taylor, the defendant was held liable for infringement because a singer employed in his music hall sang a copyright song, though the defendant did not choose or pass upon the number. Thereafter in the "copyright (musical composition) act" of 1888, it was provided that "the proprietor, tenant or occupier of any place of dramatic entertainment" shall not be liable, "unless he shall willfully cause or permit" a performance, "knowing it to be unauthorized." The courts seem disposed to acquit a mere agent of responsibility. In 1893, in French _v._ Day, Gregory, _et al._, it was held by Justice Kennedy as to a performance of "The miner's wife" asserted to be an infringement of "Lost in London," that the proprietor of the theatre, Day, "who merely used Gregory," the manager, "as his mouthpiece," was the responsible defendant. The new British code holds liable any person who for profit permits a place of entertainment to be used for an infringing performance unless he were not aware and had no reasonable grounds for suspecting it to be an infringement. {Sidenote: Protection against "fly by night" companies} {Sidenote: State legislation} In the prevention or punishment of unauthorized performances by irresponsible private companies, the chief obstacle in the United States was the difficulty of reaching the "fly by night" companies, as they were called, as they flitted from state to state, and from one court jurisdiction to another. To remedy this difficulty, an important protection of the performing right in dramatic works was assured by the act of January 6, 1897, obtained largely through the efforts of Bronson Howard, as president of the American Dramatists Club. This act provided penalty of $100 for the first and $50 for each subsequent unlawful performance, and imprisonment for not exceeding one year, when such unlawful performance was willful and for profit; and also that an injunction issued in any one circuit might be enforced by any other circuit in the United States. This was in consonance with successful efforts to obtain the passage of state laws to protect dramatic and musical works, aside from the federal copyright law, obtained by the Dramatists Club between 1895 and 1905 in the states of New Hampshire, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut, and Michigan. These varied in form in the several states, though of the same general purport. The New York statute, for instance, adds to the penal code a new section as follows: "Sec. 729. Any person who causes to be publicly performed or represented for profit any unpublished, undedicated or copyrighted dramatic composition, or musical composition known as an opera, without the consent of its owner or proprietor, or who, knowing that such dramatic or musical composition is unpublished, undedicated or copyrighted and without the consent of its owner, or proprietor, permits, aids or takes part in such a performance or representation shall be guilty of a misdemeanor." The texts in all the states are given in full in Copyright Office Bulletin No. 3, 1906, "Copyright enactments of the United States," pages 105-115. {Sidenote: Remedies under present law} The American code of 1909 enacts (sec. 28) that "any person who willfully and for profit shall infringe any copyright ... or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor," punishable by "imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court"; and provides (sec. 25, fourth) damages "in the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance"; and also provides (sec. 36) for injunction operative throughout the United States. {Sidenote: Musical protection in England} {Sidenote: Acts of 1902-1906} In England the protection of musical properties under the acts of 1833-42 and 1882-88, had become so difficult that English music publishers threatened to cease printing new original works because of the freedom with which they could be pirated. Under the provisions of 1833, as reënacted in 1842, every infringing performance of a musical composition, as of a dramatic piece, involved liability to "an amount not less than forty shillings or the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever may be the greater damage," in addition to costs. The "copyright (musical compositions) act" of 1882 (45 & 46 Victoria, c. 40) had required that the right of public performance should be reserved by printed notice on each published copy and provided for a penalty of twenty pounds where the proprietor of the publishing copyright neglected, after requirement from the owner of the performing right, to print such notice. The "copyright (musical compositions) act" of 1888 (51 & 52 Victoria, c. 17) provided that the penalty or damages for every unauthorized performance of any musical composition shall, in the discretion of the court, be "reasonable" and may be less than forty shillings for each such performance, or nominal, and that the proprietor, tenant or occupier should not be liable unless "willfully" causing or permitting such unauthorized performance, "knowing it to be unauthorized,"--but the act specifically excepted "any opera or stage play" from its provisions. The protest of the musical composers and publishers led to the passage of the "musical (summary proceedings copyright) act" of 1902, which authorized a constable to seize without warrant pirated copies hawked or otherwise offered for sale, on the written request and at the risk of the copyright owner or by direction of the court, and provided for their forfeiture and destruction or delivery to the owner on the decision of the court. A Musical Copyright Committee, for the consideration of these vexed questions, was appointed by the Home Office and made a report in 1904; and a further "musical copyright act" of 1906 continued the provisions stated and provided also for the seizure of plates as well as copies of pirated musical compositions and for the summary punishment of the offender by fine not exceeding five pounds and, for a repeated offense, by fine not exceeding ten pounds or imprisonment not exceeding two months, possession being proof of fraudulent intent unless the copies bore the name of a printer or publisher. Both these acts were applicable only within the United Kingdom. These provisions, in addition to those for injunction and adequate costs, have bettered the condition of musical properties in England, and they remain unrepealed, except as to requirement of registration, under the new British code as adopted by the House of Commons. {Sidenote: Playright in other countries} In most countries playright in the case of dramatic or musical works is specifically covered in the copyright statutes or protected in connection with copyright, although in Austria, Russia, Denmark and Norway, in the case of music, special notice of reservation is required, while in Australia special reservation of the performing right must be made on publication in print of drama or music. {Sidenote: International provisions} In general, performance is differentiated from publication, and while in some countries, as above indicated, publication in printed form, especially of a musical work, may waive the exclusive right of performance, performance is generally held not to constitute publication. This view is expressly set forth in the interpretation made at Paris, 1896, of the Berne convention of 1886, whereby section 2 of the interpretative declaration defines "published works" as "works actually issued to the public." "Consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work ... do not constitute publication." The Berlin convention of 1908 repeats the same language in article 4, prefacing it with the definition that "by published works ('_oeuvres publiées_') must be understood, according to the present convention, works which have been issued ('_oeuvres éditées_')"--the English text here given being the official translation of the U. S. Copyright Office. {Sidenote: Foreign protection of arrangements} In most foreign countries which include musical compositions under subjects of copyright either as covered under "literary and artistic works" or by specific mention, the general principles as to arrangements and adaptations hold in such countries. Several countries, as Belgium, specify however "the exclusive right of making arrangements on motives of the original composition," Brazil, Luxemburg, Mexico, Nicaragua and Tunis following this precedent in nearly identical language. Germany specifically protects the "sole right of making extracts from musical works and arranging for orchestra or in parts." Spain specifies among its prohibitions "the total or partial publication of melodies, with or without accompaniment, transposed or arranged for other instruments or with different words." Hungary specifies that "every arrangement of a musical work, published without the consent of the author, which cannot be considered as a composition in itself," is an infringement. Where, however, the author of a work permits or licenses an adaptation or arrangement, or an original adaptation or arrangement is made from a work in the public domain, that is properly a separate subject of copyright, as is specified in the statutes of Colombia, to the effect that "variations, etc., on a theme or air which is public property, constitutes property. Transpositions are similar to translations of literary subjects." {Sidenote: International definitions} Dramatic and musical works were specifically included under the protection of the International Copyright Convention of Berne, 1886, by the definition in article IV of "literary and artistic works" as including "dramatic or dramatico-musical works; musical compositions with or without words." In the Berlin convention, 1908, the same general term was defined in article 2 as including "dramatic or dramatico-musical works; choregraphic works and pantomimes, the stage directions ('_mise en scène_') of which are fixed in writing or otherwise; musical compositions with or without words." "Adaptations, arrangements of music, etc., are specially included," in the phraseology of article X of the convention of 1886, "amongst the illicit reproductions to which the present convention applies, when they are only the reproduction of a particular work, in the same form, or in another form, with non-essential alterations, or abridgments, so made as not to confer the character of a new original work"; and practically the same language is repeated in article 12 of the convention of 1908. On the other hand, "adaptations, arrangements of music," etc., are protected as original works without prejudice to the rights of the author of the original work, in article 2 of the convention of 1908. The German law of 1901 permits, however, extract from or other use of musical compositions in adaptations or arrangement under specified circumstances, as for family, social or other gratuitous performance, under the limitations of the law, which exception seems to be permitted also under the law of 1910. {Sidenote: National formalities} Throughout the countries of the International Copyright Union, first publication in any of these countries and compliance with its formalities entitle the author to playright as well as copyright in all the other countries within the Union, with some exceptions to be noted. Thus in Switzerland the conditions of performance must be given at the head of the printed play; and the law stipulates that the author may not require as royalty more than two per cent of the gross profits, and a performance at which the admission fee is reckoned to cover only cost of production or a performance for charitable purposes, is not considered an infringement of playright. In Italy a play performed, but not printed and published, must be submitted in manuscript for inspection within three months of first performance, together with a declaration reserving the playright; a printed book or play should be deposited with accompanying notice of reservation within three months, or the proprietor cannot obtain damages until such deposit, and failure to deposit within ten years abandons copyright protection. Italian proprietors of music sometimes refrain from printing and publishing music, with the intent of maintaining copyright and playright indefinitely. {Sidenote: Specific reservations or conditions} In Luxemburg and Sweden, reservation of playright must be stated on printed copies, as is also the case as to music in these countries and in the other countries elsewhere cited. In Sweden, the term for playright is less than for copyright in the printed work, being for life and thirty years only. In Sweden and Norway, the author protecting his rights by first publication in these countries, must be a citizen of one of the countries within the International Copyright Union or must acquire rights through a publisher therein; though in the other countries of the Union, this question of nationality is immaterial. In Norway and Denmark, there must be reservation of right of recitation, but in Norway this lapses in any event at the end of three years, provided the recitation does not take the shape of a dramatic performance. In Holland and the Dutch Indies, reservation of playright must be given, and printing within the country has hitherto been required to protect a published work. In Hungary, the author of a play must give his name on the title-page or in the announcement of the play, and protection is extended to foreigners who have been for two years rate-payers and residents in Hungary, as well as those whose countries have reciprocal relations. In Finland, the author's name and reservation of playright must be given on the printed copy, and protection is extended to foreigners on condition of residence and publication in Finland. Most of the smaller European countries and many South American countries, including playright under copyright, base protection on reciprocal protection of their citizens in other countries, while protection of performing rights in Brazil requires notice on printed plays of the reservation of royalty for performance. In many oriental countries, as Egypt, China, etc., protection is afforded to some extent in the consular courts. {Sidenote: Pan American Union} In the Pan American Union, the Buenos Aires convention of 1910 specifically includes dramatic and musical works as literary works, without special provisions. XII MECHANICAL MUSIC PROVISIONS {Sidenote: "Canned music" contest} As the international copyright provision with the manufacturing clause was the central feature of the copyright campaign culminating in the law of 1891, so the provision for the control of mechanical music with the compulsory license clause was the central feature of the contest culminating in the act of 1909. This came to be known as the "canned music" fight, and arguments pro and con consumed the greater part of the hearings before the Committees on Patents. The solution finally reached was in the provisos added to the musical subsection (e) of section 1 of the bill, which in full is as follows: {Sidenote: Mechanical music provisos} {Sidenote: Compulsory license} "(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: _Provided_, That the provisions of this Act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: _And_ _provided further, and as a condition of extending the copyright control to such mechanical reproductions_, That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufacturer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: _And provided further_, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright. {Sidenote: Damages} "In case of the failure of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this Act, not exceeding three times such amount. {Sidenote: Public performance} "The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs." This provision, though somewhat involved in form, tells its own story, and there has thus far been no occasion for judicial construction. {Sidenote: The compromise result} In the series of discussions before the Committees, the friends of copyright argued for the exclusive and unrestricted right of the musical composer to control absolutely the mechanical reproductions of his work, while the representatives of "canned music" argued at first that mechanical reproduction should be permitted without reference to copyright, and later that there should be entire liberty to make reproductions of a musical work on the sole condition of a specified payment to the copyright proprietor. The provision as actually adopted was a compromise upholding the negative right of the author to prevent mechanical reproduction, but requiring him, in the event of a grant of authority to any one manufacturer to reproduce his work mechanically, to extend that privilege to any other manufacturer on payment of the specified royalty. This scheme is practically modeled on what was known as the Pearsall-Smith royalty plan, which, as proposed for books, was stoutly fought by the proponents of the copyright act of 1891, throughout that memorable copyright campaign. {Sidenote: Judicial construction} In the case of the White-Smith Music Pub. Co. _v._ Apollo Co., in which the Æolian Co. was supposed to be the real complainant, the representatives of the musical author were, in 1906, denied protection against the mechanical music rolls made by the defendant, by the Circuit Court of Appeals, where the judges considered themselves "constrained" by the necessity of strict construction to decide that "a perforated roll is not a copy in fact of complainant's staff notation," while saying "that the rights sought to be protected belong to the same class as those covered by the specific provisions of the copyright statutes." It was presumed by many during the copyright campaign that the Supreme Court would make a broad construction of the statute, but that court held, February 24, 1908, in an opinion written by Justice Day, that the considerations adduced "properly address themselves to the legislative and not to the judicial branch of the Government" and that "as the act of Congress now stands, we believe it does not include these records as copies or publications of the copyright music involved in these cases." Justice Holmes, while not dissenting, added a memorandum to the effect that "the result is to give to copyright less scope than its rational significance and the ground on which it is granted seems to me to demand.... On principle, anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow, ought to be made so by a further act, except so far as some extraneous consideration of policy may oppose." While the judges thus felt "constrained" to deny relief, their strong language in defense of copyright control doubtless had its effect upon the legislative authorities in the framing and the passage of the new code. This decision was confirmatory of an earlier decision, in Stern _v._ Rosey in 1901, of Judge Shepard in the Court of Appeals in the District of Columbia, that the mechanical reproduction of two copyrighted songs could not be prevented under the existing law. {Sidenote: Punishment of infringement} Specific and elaborate provision is made for the punishment of infringers under the mechanical music proviso (sec. 1, e) by sec. 25, e: {Sidenote: Notice to proprietor of intention to use} "Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e), of this Act: _Provided also_, That whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this Act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office, sending to the copyright office a duplicate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a further sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid." {Sidenote: Copyright Office form and fees} The Copyright Office provides a special form (U) on a blue card for registration of "notice of use on mechanical instruments," in which the copyright owner of a musical composition gives notice that he "has used or has licensed the use of said composition for the manufacture of parts of instruments serving to reproduce mechanically such musical work." The recording fee for such notice, as fixed by the statute (sec. 61), is twenty-five cents for the first fifty words and twenty-five cents additional for each additional hundred words. For recording and certifying the license referred to (sec. 1, e) the statute provides (sec. 61) for a fee of one dollar for not over three hundred words, two dollars if not over one thousand words and one dollar for each additional one thousand words or fraction thereof over three hundred words. {Sidenote: The constitutional question} The actual fixing of a specified price, as that of two cents or a halfpenny on each reproduction, is a feature quite new in law, American or English, and involves a serious constitutional question. Congress has granted to the Interstate Commerce Commission, and state legislatures to specified authorities, as public service commissions, power to regulate prices; and the U. S. Supreme Court, in 1909, confirming the N. Y. Court of Appeals in the Consolidated Gas Co. cases, upheld the application of the sovereign power of the state to limit the price of gas to 80 cents per 1000 cubic feet, as sold by a corporation enjoying a public franchise. In this compulsory license provision of the copyright code, Congress has gone further in two directions: it has fixed a royalty price, not by definition or limitation of a "reasonable" price, but absolutely, and it has applied this provision not to a corporation enjoying franchise privileges, but to the individual owner of property created by his own labor. {Sidenote: English law} The English laws had not mentioned mechanical reproduction up to the musical copyright act of 1906, which in section 3 expressly provided that "'pirated copies' and 'plates' shall not, for the purposes of this Act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records respectively are made." The test case meanwhile on this question was that of Boosey v. Whight, which was finally decided in the Court of Appeal in 1900, with respect to the use of copyrighted songs on the perforated rolls of the Æolian. Justice Sterling in the lower court had decided that the perforations were not an infringement of the copyright but that the marginal directions for playing might be such; Justice Lindley, M. R., held with him that the perforated roll was not a "copy" of the sheet music, but overruled him on the second point, holding that the directions, though copied from the printed page, were neither music nor a literary composition. {Sidenote: The new British code} The new British measure as prepared in 1910 included as incident to copyright the sole right "in the case of a literary, dramatic or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered," thus in the simplest fashion completely covering the control of mechanical reproduction in conformity with the convention of Berlin. But in the Parliament of 1911 the bill emerged from committee stage with an elaborate proviso, based on the American precedent, excepting from the definition of infringement contrivances for the mechanical reproduction of sounds on (1) proof that the copyright owner has previously acquiesced in mechanical reproduction, (2) prescribed notice of intention, and (3) payment of royalty of 2-1/2 or 5 per cent with a minimum of a halfpenny for each record, or in the case of different works on the same record, to each copyright proprietor. {Sidenote: The Berne situation, 1886} When the international representatives met at Berne in 1886, the mechanical reproduction of music was confined chiefly if not wholly to Swiss music-boxes and orchestrions and to hand-organs, of comparatively little commercial importance; and, possibly with some thought of the recognition of the hospitality of Switzerland, little emphasis was placed on the protection of musical composers against mechanical reproduction of their works. In fact, the final protocol of the Berne Convention of 1886 contained, as clause 3, the following paragraph: "It is understood that the manufacture and sale of instruments for the mechanical reproduction of musical airs which are copyright, shall not be considered as constituting an infringement of musical copyright." {Sidenote: Lack of action at Paris, 1896} Despite strong representations at the congresses of the International Association for the protection of literary property, held at London in 1890, Neufchâtel in 1891, and Milan in 1892, and a vigorous endeavor in connection with the Paris convention of 1896 to replace this clause, it was not modified until the convention of Berlin in 1908, in preparation for which a strong resolution was passed at the congress of the International Association at Vevey in 1901. {Sidenote: The Berlin provision, 1908} With the increasing development of the phonograph and of the mechanical player, mechanical reproductions became so important a matter to musical composers and publishers, that much of the discussion in respect to the amendatory convention of Berlin of 1908 was upon this subject. In the amended convention, the subject was fully covered by article 13: "Authors of musical works have the exclusive right to authorize: (1) the adaptation of these works to instruments serving to reproduce them mechanically; (2) the public performance of the same works by means of these instruments. "The limitations and conditions relative to the application of this article shall be determined by the domestic legislation of each country in its own case; but all limitations and conditions of this nature shall have an effect strictly limited to the country which shall have adopted them. "The provisions of paragraph 1 have no retroactive effect, and therefore are not applicable in a country of the Union to works which, in that country, shall have been lawfully adapted to mechanical instruments before the going into force of the present Convention. "The adaptations made by virtue of paragraphs 2 and 3 of this article and imported without the authorization of the parties interested into a country where they are not lawful, may be seized there." {Sidenote: German precedents} In Germany, under the general copyright law of 1870, the higher courts gave to musical composers control over mechanical reproductions from which, as the industry grew, the authors or publishers obtained some little return. But succeeding the adoption of the permissive clause in the Berne convention of 1886, it was proposed in the new copyright law to free mechanical reproductions from the control of the composer. A protest was at once made by musical authors and publishers, which resulted in a modification of the form proposed by the government and the addition of a clause giving control where the reproduction involved personal interpretation. In this form the "unfortunate section 22" became part of the law of 1901 relating to copyright in literary and musical works. Section 22 was in the following language: "Reproduction is permitted when a musical composition is, after publication, transferred to such discs, plates, cylinders, bands and similar parts of instruments for the mechanical rendering of pieces of music. This provision is applicable also to interchangeable parts, provided that they are not applied to instruments by which the work can, as regards strength and duration of tone and tempo, be rendered in a manner resembling a personal performance." {Sidenote: Law of 1910} This had the extraordinary and contradictory effect of giving the author control over the finer reproductions of his works but denying to him any control over the cruder reproductions, as on hand-organs, orchestrions, etc. The opposition which developed against this impossible situation was largely influential in bringing about the modification at Berlin in 1908 of the Berne clause. The law of May 22, 1910, amended the previous general laws in conformity with the Berlin convention, especially by extending protection to the mechanical reproduction of music and cinematograph reproduction of artistic works. Section 22 of the law of 1901 was specifically replaced by an elaborate section, modeled on the American compulsory license provision and requiring a composer who permitted mechanical reproduction to grant similar rights on equal terms to any other manufacturers domiciled in Germany, with provisions for reciprocity and for the treatment of non-German composers through the tribunals of Leipzig. This law became effective coördinately with the Berlin convention on September 9, 1910, and in connection with it an ordinance promulgated by the Emperor July 12, 1910, defined the time during which mechanical reproductions already made of copyrighted works should still be permitted. The use of extracts from musical as from other works, as perhaps in _potpourris_, seems however still to be permitted as a result of the law of 1901. {Sidenote: Germany and the United States} As a result of the reciprocal provisions of the new German law, the President of the United States on December 8, 1910, proclaimed reciprocal relations between Germany and the United States with reference to mechanical reproductions of music. In the opinion of May 6, 1911, approved by the Attorney-General, a Presidential proclamation is required to determine "the existence of reciprocal conditions" as to the mechanical music provision (sec. 1, e) as in respect to sec. 8; but as the proclamation of December 8 did not recite that reciprocal conditions existed between September 9 and December 8, 1910, it is held that "it would not afford evidence sufficient to sustain an action for infringement between said dates." {Sidenote: French precedents} In France the general copyright act of 1793, as considered to cover mechanical music, was interpreted or modified by the act of 1866, which enacted that "the manufacture and sale of instruments serving to reproduce mechanically musical airs which are still in the private domain, does not constitute musical infringement." In the suit of Enoch _v. Société des phonographes et gramophones_, the Civil Court of the Seine had decided in 1903 that phonographic instruments were excepted from the protection of the law of 1793 by the "general immunities" concerning the mechanical musical instruments in the act of 1866. But in 1905 the Court of Appeals of Paris reversed this decision, holding that the law of 1866 applied solely to musical airs, that is, those involving no words, on the ground that the law of 1793 was enunciatory of the rights of authors, applying to all modes of publication and distribution, and that the word "publication" should be understood broadly "as jurisprudence has applied it to numerous modes of publication discovered since the law of July 19 and 24, 1793, and the Code of 1810, and as nothing prevents its extension, in consequence of scientific progress"; and it therefore concluded that literary works either by themselves or associated with music were practically under the law of 1793 and not exempted by the law of 1866. A more recent case, in the Court of Commerce of the Seine in 1905, resulted, however, in the dismissal of a suit for infringement. France accepted the Berlin convention, June 28, 1910; but its provision in article 13, that "the limitations and conditions" as to mechanical music protection "shall be determined by the domestic legislation of each country in its own case," makes uncertain whether protection becomes effective in the absence of specific legislation. {Sidenote: Belgian precedents} In Belgium in 1904, in the suit of Massenet and Puccini _v. Compagnie Générale des phonographes, et al._, it was held by the court of first instance of Brussels that the introduction for sale of discs and cylinders reproducing the musical compositions of the plaintiffs was illegal and liable for damages and punishable as an infringement. This decision was, however, overruled by the Court of Appeals of Brussels in 1905. Belgium accepted the Berlin convention, May 23, 1910, has since protected mechanical reproduction, and was proclaimed as in reciprocal relations with the United States, June 14, 1911. {Sidenote: Italian precedents} In Italy the copyright law was considered in relation to mechanical instruments by several court decisions of which the latest and most important seems to be in the case of the _Società Italiana d. Autori v._ Gramophone Co. of London, in which, in 1906, the Royal Court of Milan held that reproductions of music by gramophone constituted infringement. This decision held that article three of the Berne convention of 1886 could not derogate from or modify the domestic private law of 1882, and as the Italian law specifically covers publication and reproduction "by any method," it includes gramophone discs. "Publication means a process by which the intellectual concept of the artist is revealed, and brought to the knowledge of others." "What the legislature wanted has been this: that the author be the exclusive owner of the external form in which the creation of the mind has been fixed, and, so to speak, materialized; and that the right be reserved to him to get from his studies and his exertions all the economic benefits which he could derive therefrom." {Sidenote: Other countries} In the laws of Switzerland of 1883, and Monaco and Tunis of 1889, the fabrication and sale of mechanical instruments or devices for reproducing musical airs were excepted from the definition of piracy. But all these countries have ratified the Berlin convention "without reservation." Luxemburg and Norway have applied the Berlin provision and were proclaimed as in reciprocal relation with the United States on June 14, 1911. Russia has followed American precedent in the new law of 1911, but has no reciprocal relations with the United States. {Sidenote: Argument for inclusion} As the opposition to the control by musical composers of mechanical reproductions of their works is still strong in the United States and in several countries, notwithstanding recent conventions and legislation, and is based largely upon restrictive definitions of the words "writings" and "copies" or their equivalent in other languages, it may be well to include here the argument made by the writer as Vice-president of the American (Authors) Copyright League, at the Congressional hearings on the new American code, of which the essential portions are as follows: "The American Copyright League stands, as it has stood for a quarter of a century, simply and solely for the protection of authors' rights to the fullest extent, and it asserts that a musical composer is as fully entitled as is the author of any other creative work to the exclusive and full benefits of his compositions, in whatever manner reproduced. The opponents of the bill base their objections largely on a restrictive definition of the word 'writings,' and criticise the bill because this word 'writings' is interpreted throughout the bill by the word 'works,' although this accurately reflects the understanding of Congress and the interpretation of the courts. They would, in fact, confine copyright protection specifically, it may be said, to e-y-e-deas, that is, visible records, and exclude as not visible or legible by the eye, copies of musical compositions mechanically made and interpreted. {Sidenote: Inscribed writings} {Sidenote: Direct sound-writing} "The earliest _writing_ which remains to us is in the Assyrian wedge-shaped inscriptions, made by pressing the end of a squared stick into a soft clay cylinder; the phonograph point inscribes its record in exactly the same manner upon the 'wax' or composition of the cylinder or disc, for the mechanism only revolves the roll, and the point is actuated by the sound vibrations. The words 'phonograph,' 'graphophone' and 'gramophone' literally mean 'sound-writing,' for the Greek form _graph-_, the Latin form _scrib-_, and the Saxon form _write_, equally parts of our language, denote exactly the same meaning. It is even probable that a future development of phonograph impressions (the third dimension being translated into breadth of stroke as can be mechanically done) will give ultimately a visual phonograph alphabet even more natural and logical than Professor Bell's remarkable system of 'visible speech,' which, of course, like all alphabets, can be read only when the reader has mastered the significance of the symbols. Mr. Edison has himself made some experiments in this direction, though the confusion from the overtones, which give _quality_ of speech, has so far prevented result. A large share of literary productivity to-day is by voice-dictation recorded mechanically by a stenographer on the typewriter or directly on the phonograph disc, and I may instance from personal experience a further step. As one of the committee for the Edison birthday dinner, commemorating the twenty-fifth anniversary of his invention of the incandescent lamp, I was asked to supply some original verse, and it occurred to me to put this in shape by help of Mr. Edison's inventions, without direct or indirect hand- or typewriting. Accordingly I completed the verses mentally without use of paper and voiced them into an Edison phonograph, verifying this through the telephone, and the lines were set in type by the printer from the sound-record, and thus printed on the _menu_ for the dinner. Thus my formulated ideas were recorded through the nerves and other mechanism of the vocal organs, instead of through the nerves and other mechanism of the hand, directly by the phonograph point on the phonograph cylinder; and it seems a common-sense inference that if I had caused copies of the phonograph cylinder, though not legible in the ordinary sense, to be published instead of the secondary copies in print, I should be as much entitled to copyright protection in the one case as in the other. The 'telegraphone' directly records on a steel tape the sounds of the human voice as sent through the telephone, and by an absolutely invisible re-arrangement of the magnetized particles of steel, makes a writing in which there is no possibility of visual legibility. {Sidenote: Music transmissal} "Moreover, invention is now developing a series of reproducing mechanisms such as Dr. Cahill's 'telharmonicon' or 'dynamophone,' in which musical compositions will be translated to the ear without the interposition even of a cylinder or disc sound-record; and it seems a common-sense inference that the musical composer should have as full rights in this as in other forms of copying or reproducing his thought. Buda-Pesth is said to have not only a telephone 'newspaper,' but a system of reading novels and other works of literature to telephone subscribers, and if this should reach such proportions as substantially to reduce the sale of the printed copies of a new novel from which the author would receive benefit, it would also seem a common-sense inference that the same or an equivalent royalty should be paid him. {Sidenote: Music notation} "In music writing or notation there are two and only two essentials: relative vertical position, showing pitch, and relative horizontal position, showing duration of notes. The earliest form of our present music writing is the system of the 'large,' 'long,' 'breve' and 'semi-breve' notes, in which the pitch was shown by the vertical relations of the notes, and the length of the note by the length of the black mark, the 'large' mark being twice the length of the 'long' mark. This corresponds closely to the perforated music roll of to-day, which could be read by a practiced eye with and probably without staff lines, to the extent that if every other form of reproduction were destroyed, the melody and harmony of a musical work could be reproduced into the ordinary notation of music writing. I speak from personal knowledge of these music rolls, having had a mechanical instrument for some years. The different kinds of rolls differ in the relative spacing and in distance from the edge of the roll, which gives the standard, but a foreshortened photograph of any, bringing them to the same scale, would pattern closely the early form of music writing above cited. The London postal telegraph system dispatches newspaper material from St. Martin's le Grand throughout the kingdom from continuous perforated ribbons made somewhat in the same way, visible and legible only to an expert, and reproductions by the medium of this device would certainly not vitiate copyright. {Sidenote: The law prior to 1909} "It may be observed that the existing law gives to the author or proprietor of a musical composition the sole liberty not only of printing, but of publishing, copying, vending, performing, or representing a musical composition; that the statute does not restrict 'copying' either to a copy of 'staff notation' or from or in any particular form, but prohibits in general any copy of a musical composition; that there is no suggestion in the statute that the copy must be one to be read, _e. g._, a copy of a sculpture; that any sound-record is in the wide sense as truly a copy of a musical composition as a printed sheet, which is not a copy, in fact, of the author's manuscript writing; and that as the roll has for its sole purpose the performing by the aid of a mechanism useless without it, of a musical composition, just as a printed sheet of music has the sole purpose of the performing by the aid of the voice, the piano, or the orchestra, of a musical composition, the maker and vendor of the roll is in exactly the same position as the maker or vendor of a printed sheet of music. {Sidenote: Manuscript and copies} "But even if phonograph and perforated records should not be considered, as is sculpture, to be 'writings,' the arguments of the opponents of this bill do not fit the case. The Constitution explicitly provides that authors shall have _exclusive rights_ to their writings. This cannot mean exclusive rights to their written manuscripts, for these are protected by common law and no constitutional provision was necessary. It meant and means evidently that authors shall have exclusive rights to the benefits of their writings, the usufruct of the property they have created, and that means practically a monopoly control over all copies or reproductions from such writings, whether the copies are in handwriting, printing, or any other form. A musical score is definitely a writing, for it is even more than a literary manuscript, originally in the personal handwriting of the composer himself, without the intervention of a stenographer or a typewriting machine. Therefore, if the narrowest meaning of the word 'writings' should be interpreted into the Constitution such as would exclude sculptures and other works which are admittedly proper and legal subjects of copyright, it would still specifically include musical and dramatic as well as literary manuscripts. There is no specification in the Constitution confining the exclusive rights over writings to copies in handwriting or print or any other stated process of reproduction; in fact, the Constitution does not use the word 'copyright' or in any way limit by specification the comprehensiveness of the exclusive rights Congress is thus authorized to secure. Indeed, Congress in the copyright laws has interpreted the Constitution to cover the several artistic or reproductive processes from time to time developed or invented; thus in the law of 1865 the provisions of the copyright laws were extended to include 'photographs,' which did not exist at the time of the adoption of the Constitution--which word specifically means 'light-writings' as phonograph records specifically mean 'sound-writings.' {Sidenote: Protection of the inventor} {Sidenote: The counter argument} "The position taken by the American Copyright League is that an author is literally entitled to the exclusive right, that is, the exclusive _benefit_, in his writings, in whatever form the writings, that is, his recorded thoughts, can be reproduced for sale or gain. If Mark Twain writes a book or Bronson Howard a play or Sousa or Victor Herbert a musical composition or Millet makes a painting or French a statue, each is equally entitled to whatever benefit inures from his creative genius. Mr. Sousa has stated clearly that although Caruso has been paid $3000--and the fact widely advertised--for singing into a phonograph record, and his own band (not under his leadership) has also been paid for playing his compositions and those of others into the phonograph horn, he has never received as a musical composer one cent for such use of his creations, though from twenty to a hundred of his compositions are to be found on the catalogues of the several manufacturers of mechanical instruments. Mr. J. Howlett Davis, who properly appeared as an inventor in defense of his own inventions in mechanical instruments, which he mistakenly believes would be rendered useless if the copyright protection were extended to sound-records, really asked that Congress should protect the thing which he had invented, and compel users to pay for it, but should permit him to use the thought which the musical composer had invented and expressed, without paying for it. His argument analyzed presents an even stronger argument for the proposed copyright bill than for the protection of patented inventions. When Mr. Sousa buys a patented cornet he has paid for the use of it, but Mr. Sousa makes no claim either to make another cornet like it or to play copyrighted musical compositions for profit without payment or permission. A piano, a pianola, a music roll or new form of mechanism, is patentable; a musical composition as played on a piano by hand or by mechanism, whether reproduced on a printed sheet or a mechanical roll, is copyrightable; but each should have like protection. I speak from specific knowledge as one who has taken out patents as well as copyrights and as the active head for some years of the Edison Illuminating Company of New York and a participant in successfully defending the Edison lamp patents. Mr. Edison, both as an inventor and as a manufacturer of his own inventions, has profited much more than a million dollars from his patents, and would naturally be expected to be foremost in upholding the right of authors to payment for their brains." {Sidenote: Complete protection} The acceptance by most countries within the International Copyright Union of the Berlin convention, without reservation on this question of mechanical music, sets an example of complete protection of the musical composer which it is hoped may be ultimately adopted by the United States as well as by other countries. XIII ARTISTIC COPYRIGHT {Sidenote: Threefold value in art works} The artist-author, by the labor of his brain and hand, produces three classes of property right or a threefold value: he receives recompense from the sale of the original work made by his hand, or from the exhibition of it, or from the reproduction and sale of copies. The new American code is perhaps in advance of legislation in any other country in the protection of the artist, for it assures to him separate values in the right to sell his work and the right to reproduce and sell copies, neither one of which rights is necessarily transferred with the other; it enables him to copyright his original work before the reproduction of copies, though it does not make absolutely clear whether the exhibition without restriction of an uncopyrighted work results in dedication; and it protects his right to control and profit from reproductions, with the simplest possible copyright notice, not including date, though as to lithographic and photo-engraving reproductions it requires manufacture in this country. The literary, dramatic or musical author produces no value in the original work itself, except as his fame may ultimately make his manuscript valuable as an autograph, and in this respect the artist-author has an advantage of practical importance in the general provision separating the copyright from the right in the material object. On the other hand, show-right or right of exhibition is not as specifically treated or as clearly defined and protected as is playright or right of performance in the case of drama or music. {Sidenote: American provisions} The copyright of works of the fine arts and cognate works is specifically provided for in the code of 1909 by including as subject-matter of copyright (sec. 5) the following divisions: "(f) Maps; (g) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character; (j) Photographs; (k) Prints and pictorial illustrations." It is not intended to include under subsection (k) labels or prints of advertising or commercial character which may be registered as trade-marks under the Trade-Mark law in the Patent Office. The proprietor of a work of art is given in addition to the general rights (sec. 1, a) the specific rights (sec. 1, b) "to complete, execute, and finish it if it be a model or design for a work of art." {Sidenote: Copyright Office classification definitions} The new Copyright Office Rules and Regulations, promulgated 1910, define these classifications in the following language: "11. _(f) Maps._--This term includes all cartographical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence. "12. _(g) Works of art._--This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.) "Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented. "No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles. "13. _(h) Reproductions of works of art._--This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element distinct from that of the original work of art which has been reproduced. "14. _(i) Drawings or plastic works of a scientific or technical character._--This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engineering work, etc. "15. _(j) Photographs._--This term covers all positive prints from photographic negatives, including those from moving picture films (the entire series being counted as a single photograph), but not photogravures, half tones, and other photo-engravings. "16. _(k) Prints and pictorial illustrations._--This term comprises all printed pictures not included in the various other classes enumerated above. "Articles of utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyrightable, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles. "Postal cards cannot be copyrighted as such. The pictures thereon may be registered as 'prints or pictorial illustrations' or as 'photographs.' Text matter on a postal card may be of such a character that it may be registered as a 'book.' "Mere ornamental scrolls, combinations of lines and colors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation 'prints and pictorial illustrations.' Trademarks cannot be copyrighted nor registered in the Copyright Office." {Sidenote: The question of exhibition} The new law does not specifically make clear the relation between the exhibition of works of art and publication, or define whether or not exhibition may constitute dedication to the public and thus prevent the protection of the copyright thereafter. But in making copyright a sequent to publication (sec. 9) and providing (sec. 2) "that nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work," it makes it at least probable that the author of an artistic or cognate work who simply exhibits, does not surrender the right to copyright. The trend of the courts in recent decisions has been, as in the Werkmeister case, cited below, to protect exhibited works, at least where any reservation of rights could be construed into the circumstances of the exhibition; but it is still uncertain whether the exhibition of a work of art at a public museum where there is no regulation against copying or reservation by the artist, might not constitute a dedication and thus prevent later copyright. {Sidenote: Protection of unpublished work} In providing however (sec. 11) specifically "that copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright ... of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing," it gives to the artist or the author of a cognate work an easy means of protecting his production beyond question; and he is not wise who neglects the simple precaution provided in the law. {Sidenote: Copyright notice} It is not made absolutely clear in the new law whether the copyright notice must be attached to the original of a work of art; but again the provision for protection is so simple that it is wise to take advantage of the method of the law, by placing the copyright notice on the original. The copyright notice may be in the form (sec. 18) "'Copyright' or the abbreviation 'Copr.' accompanied by the name of the copyright proprietor," the year of publication not being required in the case of an artistic work. It is further provided that "in the case of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: _Provided_, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear." If the copyright notice is attached to the original, it is not made clear whether it should be on the face of the work and visible to the casual spectator; but again the wise artist will take an easy precaution. {Sidenote: Deposit} It is further required (sec. 12) that "if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction" required as above stated, "accompanied in each case by a claim of copyright." The new Copyright Office Rules and Regulations schedule (17) among unpublished works that may be registered "(_c_) photographic prints; (_d_) works of art (paintings, drawings, and sculpture), and (_e_) plastic works," and states specifically as to the deposit in such cases: "19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engravings or photogravures are not photographs within the meaning of this provision.) "20. (3) In the case of works of art, models or designs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photographic reproduction." As deposit in the case of an unpublished work takes the place of publication and deposit in the case of works reproduced for sale, there can be no claim for statutory protection of an unpublished work of art without the deposit of the identifying copy, and the general provision (sec. 13) for fine and for voiding of copyright in the case of non-deposit, has, of course, no bearing on unpublished works. Any action or proceeding in respect to an unpublished work not registered by deposit must therefore be under common law and not under statutory provision. {Sidenote: Summary of requirements} To sum up, the author of a work of art, who is exhibiting his painting or statue or other work and not multiplying copies for sale, will assure himself of full protection if before such exhibition he places on the original work, in some visible but not obtrusive fashion, the letter C inclosed in a circle with his name or mark, and deposits a photograph of such work with the Librarian of Congress or in the mails addressed to him, accompanied by a claim of copyright,--for which an application form (J2, "photograph not reproduced for sale") is furnished on request, by the Copyright Office from Washington,--with inclosure of one dollar. As soon as the artist multiplies copies for sale, or permits reproduction of his work, as in a newspaper report of an exhibition, for instance, he must then take the precaution of depositing two copies of such reproduction as provided in general by the act, and it is further provided (sec. 18) "that on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear." In case two copies are not so deposited, it is probable that a fine and forfeiture of copyright would ultimately ensue, as indicated in section 13. {Sidenote: Material and immaterial properties distinct} It is specifically provided (sec. 41) that copyright is distinct from the property in the material object, which accomplishes for the artist the important result that when he sells his painting he does not transfer the copyright, but retains that for himself unless he specifically contracts with the buyer to include in the sale the copyright or the right to copyright. This adopts into the law the decision of the courts that copyright does not pass with a painting unless distinctly included in the transfer. The provision (sec. 41) is specific that the copyright "is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object." Thus the author of a work of art has two separate properties, the painting, statue or other work in itself, on the one hand, and the copyright or the right to copyright on the other, neither of which is transferred by the transfer of the other unless both are specifically included in the transfer. {Sidenote: Manufacturing clause covers lithographs and photo-engravings} {Sidenote: Foreign subjects excepted} The copyright in certain classes of reproductions of works of art is dependent however on manufacture in this country, as in the case of books. This provision no longer includes photographs as in the preceding law, but is confined specifically (sec. 15) to "text produced by lithographic process, or photo-engraving process," "illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art." It is further provided that "in the case of the book ... if the text be produced by lithographic process, or photo-engraving process ... the copies so deposited shall be accompanied by an affidavit ... that such process was wholly performed within the limits of the United States." This affidavit, therefore, is not required in the case of separate lithographs or photo-engravings. The manufacturing provisions chiefly concern the publishers of books, but they imply that artists cannot send works abroad to have reproductions made. But by the opinion of January 9, 1911, approved by the Attorney-General, a design, drawing, or painting made and located abroad intended as "the first step" for lithographic reproduction, may be registered, if a "work of art"--which question of fact is to be determined by the Register of Copyrights; and such lithographic reproductions of it may be imported. {Sidenote: German post cards} It was held by the Attorney-General January 27, 1910, that lithographic reproductions of original paintings in the form of illustrated post cards made in Germany, are subject to registration, provided the original paintings may properly be classified as works of art; and thus importation of such post cards would be permissible. {Sidenote: Artistic merit unimportant} While there must be originality in a work of art, especially under English law, this means little more than a prohibition of actual copying, and as in the case of literary and dramatic works, artistic merit is of little importance. {Sidenote: Application forms} {Sidenote: Certificates} The Copyright Office furnishes without charge application forms, lettered as indicated, for the following classes of art works: (F) published map; (G) work of art (painting, drawing, or sculpture); or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character; (J1) photograph published for sale, (J2) photograph not reproduced for sale; (K) print or pictorial illustration. Thus the applicant should send for application blank (G), if for an original work of art, (H), if for a reproduction, or the proper blank in the other specified cases. But it should be noted that it is both unnecessary and undesirable to apply separately under different blanks as (G) and (H), since the single copyright on the original work covers reproductions. Certificates are returned by the Copyright Office on receipt of the application form and of the statutory fee of one dollar, covering the same specified subjects. {Sidenote: Term in unpublished work} When an original work of art is copyrighted, but is not published by reproduction of copies for sale or distribution, it is uncertain under the law, as in the case of dramatic and musical compositions, from what date the copyright protection runs and whether the sole right of reproducing copies for sale terminates at the end of a statutory term beginning with the registration of the original work or with its publication by the reproduction of copies for sale. The Copyright Office issues a certificate of the registration of the original work as covering a period of twenty-eight years and will doubtless base a renewal on the termination of this term; and only a court decision will determine whether the copyright of the original unpublished work exists in perpetuity until publication or whether the right to reproduce copies for sale lapses with the termination of twenty-eight or fifty-six years from the registration of the original work. {Sidenote: Date not required} {Sidenote: Re-copyright objectionable} The omission of the requirement of date in the copyright notice in the case of a work of art is significant and important, although it has the disadvantage that knowledge of the expiration of the term of copyright can be had only by specific inquiry from the Copyright Office. It has been the mistaken practice of more than one artist, under the old law, to enter copyright on his original sketch or on his original work under date of its beginning, again on the finished original under date of its completion, and possibly again on reproductions under the date of the first publication of copies; and when also the artist changed the name of his work under these progressions, confusion became worse confounded. From this superfluous zeal and mistaken carefulness, serious results have come, as in Caliga _v. Inter-Ocean_ Newspaper Co., decided in 1909 by the U. S. Supreme Court through Justice Day, wherein an artist failed to protect himself against an infringing reproduction, because he brought suit under a second copyright which he had entered on finishing his picture, instead of under the original and lawful copyright, under which he had originally entered his work. The fact that by this second copyrighting he laid claim to a longer term than the law allowed, made the second copyright void and a suit under it of no avail. Under the new law the author of a work of art is not only given specifically the exclusive right "to complete, execute, and finish it if it be a model or design for a work of art" as in the previous law, so that an artistic work is protected by one copyright from design to completion and reproduction; but he may also protect his original work during its progress or exhibition before publication and thus safeguard his future right to control and benefit from the multiplication of copies. {Sidenote: Exhibition right transfer} In case of the sale of the original work of art, the right to exhibit, of course, passes with the original, although the right to copyright and reproduce copies is expressly reserved to the artist. In view of the uncertainty whether the unrestricted public exhibition of a work of art constitutes dedication and prevents copyright thereof, the carelessness of the purchaser of the original might raise question as to the validity of later copyright of reproductions by the artist. It is therefore unwise for an artist to sell the original of a work of art without affixing to it the required copyright notice and depositing one copy of an identifying photograph or print. {Sidenote: Early English decision} The leading case under English law as to exhibition is that of Turner _v._ Robinson in the Irish Court of Chancery in 1860, previous to the passage of the act of 1862 which first provided statutory copyright for paintings, and interpretative therefore of common law. Turner's "Death of Chatterton" had been reproduced in a magazine and exhibited at the Royal Academy and in Manchester, and was thereafter exhibited for the purpose of obtaining subscriptions for an engraving, in Dublin, where a photographer copied it and published a stereoscopic reproduction. The Master of the Rolls held that the painting had never been published because the exhibitions were on condition that no copies should be made, and the engraving in the magazine was only a rough representation and not a publication of the picture. The Court of Appeal also held against the defendant, but because of his breach of contract, and declined to decide whether there had been publication in London or Manchester. The Lord Chancellor, however, expressed the opinion that exhibition at the Academy, though conditioned, was publication, though a private view in a studio rather than a picture gallery would not be. The Court of Appeal did not pass on the further opinion of the Master of the Rolls that the publication of a print was not publication of the picture. These confusing opinions left the question in very misty shape and the most important interpretation of English practice has come from an American court. {Sidenote: The Werckmeister leading case} The latest and leading case as to exhibition is that of Werckmeister _v._ American Lithograph Co., American Tobacco Co., _et al._, which was decided by the U. S. Supreme Court in 1907, in an opinion written by Justice Day. The English artist Sadler had sold, in 1894, to Werckmeister of the Berlin Photographic Co. the copyright in his picture "Chorus," which he exhibited at the Royal Academy Exhibition of 1894, and the design had been reproduced by the American Lithograph Co. for use on an American Tobacco Co. label, though the photograph had been given protection by copyright. In reply to the claim of the infringers that such exhibition constituted dedication to the public, the Supreme Court's decision quoted from Slater on "The law relating to copyright and trade-marks." {Sidenote: U. S. Supreme Court opinion} "It is a fundamental rule that to constitute publication there must be such a dissemination of the work of art itself among the public as to justify the belief that it took place with the intention of rendering such work common property," the court adding, "and that author instances as one of the occasions that does not amount to a general publication the exhibition of a work of art at a public exhibition where there are by-laws against copies or where it is tacitly understood that no copying shall take place, and the public are admitted to view the painting on the implied understanding that no improper advantage will be taken of the privilege. We think this doctrine is sound and the result of the best considered cases." The court said further: "We do not mean to say that the public exhibition of a painting or statue where all might see and freely copy it might not amount to publication within the statute, regardless of the artist's purpose or notice of reservation of rights which he takes no measure to protect." {Sidenote: Unrestricted exhibition hazardous} In fact, in Pierce & Bushnell Co. _v._ Werckmeister, in 1896, the U. S. Circuit Court of Appeals, through Judge Colt, had held that the exhibition of Naujok's painting of St. Cecilia, in Berlin and Munich, without copyright notice on the original work, constituted publication and dedication, and therefore denied protection to photographic copies thereafter copyrighted and published. {Sidenote: Reservation on sale} That the sale of the original work of art as a material object does not involve the transfer of the copyright is a direct application in the new American code of previous judicial decisions. In Werckmeister _v._ Springer Lith. Co., in 1894, where the defense contended that the purchaser of a painting was the person authorized to become the copyright proprietor, this contention was absolutely overruled, in the U. S. Circuit Court in New York, by Judge Townsend. But it may nevertheless be desirable to include in any contract of sale a specific reservation of copyright, especially in the case of works executed for public authorities or to be exhibited in a public place. In Dielman v. White, in 1900, Judge Lowell in the U. S. Circuit Court in Massachusetts declined to enjoin a photograph of certain mosaics by Dielman in the Library of Congress, the original cartoon for which as sent to Venice, as well as the mosaic work itself, bore copyright notice, on the ground that the correspondence with the government constituting the contract, did not clearly reserve to the artist the right to copyright and prevent copying,--though this decision may be questioned. {Sidenote: Publication construed} The courts are disposed to limit the definition of publication to insure the fullest protection of an author's right. In Werckmeister _v._ Springer Lith. Co. it was further held by Judge Townsend that the printing in an exhibition catalogue of a cut of a painting was for the information of patrons and was not publication. In the same case the defense contended that the sale of an earlier replica of the plaintiff's painting constituted a publication and forfeited copyright, but the court held that the replica was not a copy but was made beforehand to assist in the preparation of the painting afterward copyrighted, and that there was no publication. In Falk _v._ Gast, in 1893, where the defense claimed that the copyright notice was omitted from published copies, referring to a sample sheet of miniature reproductions sent to dealers for their information and convenience, the U. S. Circuit Court of Appeals, through Judge Shipman, held that this issue of sample sheets did not constitute publication. This doctrine of limitation had a curious application in Harper _v._ Shoppell, in 1886, in which Judge Wallace, in the U. S. District Court, held, where an electrotyper had sold to a third party an unauthorized electrotype of a copyrighted illustration, that the copyright law was not violated because the illustration had not been printed or published. {Sidenote: Danger of forfeiture} The artist-author or the proprietor of an artistic copyright should be most careful to comply with the statutory requirements as to notice and other formalities, as otherwise copyright may be forfeited. Several court decisions indicate that the copyright notice should be placed on the original when exhibited, even if copies are not then reproduced for sale; and as the question is not made quite clear in the new code, it is wise to follow this indication. In the original trial in 1902 of the Werckmeister case, Judge Thomas in the U. S. Circuit Court held that the omission of copyright notice from the exhibited original waived the copyright, but his decision of the case was reversed by the U. S. Supreme Court on other grounds as previously stated, and this particular point remains unsettled. Copyright is not forfeited where a notice properly affixed has been omitted in later use beyond the control of the copyright proprietor. "If copied afterwards or put upon a new mount the complainant should not suffer," said Judge Coxe in Falk _v._ Gast in reference to copies from which the notice had been separated. In Bennett _v._ Carr, in 1899, the U. S. Circuit Court of Appeals, through Judge Thomas, non-suited the complainant because he had not deposited a written description, in addition to filing identifying copies, both formalities being required under the old law. {Sidenote: Limited use and license} The principle is especially important regarding works of art that a copyright proprietor may grant specific license for the limited use of his work; and this has many times been upheld by judicial decisions. In the American courts, such cases have usually been settled by preliminary injunction, without further trial, so that most of the cases are unreported in the law digests, as in that of Miles _v._ American News Co., in 1898, where General Miles obtained a preliminary injunction restraining the distribution by the defendants of "Remington's frontier sketches," including illustrations made for and copyrighted in General Miles' "Personal recollections." In the English case of Nicholls _v._ Parker, in 1901, it was held that a license to print illustrations in the _Graphic_ did not permit their use in another periodical of the defendant despite the defense of "custom of the trade," which the judge characterized as "ridiculous." In the important case of Green _v. Irish Independent_, the Court of Appeal held that the newspaper, though acting "in good faith and without knowledge," was guilty of infringement in printing an illustration sent to it as an advertisement which the proprietor had not licensed for such use. Where, in Guggenheim _v._ Leng, in 1896, the periodical _Sports_ printed and sold as a separate sheet an illustration licensed for use in the periodical, it was held in the Queen's Bench Division that publication and sale of the supplement separately from the paper was beyond the terms of the license and therefore an infringement. {Sidenote: Character, not method of use} Copyright in a work of art is dependent upon character rather than use. "A picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement," said Justice Holmes in the U. S. Supreme Court, in Bleistein _v._ Donaldson Lith. Co., in 1903, the leading case on this subject, in which three lithographs designed for a circus poster were protected. In Mott _v._ Clow, in 1896, Judge Grosscup in the U. S. Circuit Court in Illinois had held that illustrations, in this instance of bathtubs in a trade catalogue, which "are mere advertisements," are not entitled to copyright; and in Schumacher _v._ Wogram, in 1888, it had been held by Judge Wallace that a picture of a young woman holding a bouquet intended for a cigar label could not be protected as copyright, but should be registered as a trade-mark. "The distinction here," said Judge Wallace, "seems to be that a picture expressly intended as a label should be considered a trade-mark, though a picture which may be used for a label is not for this reason excluded from copyright." An artistic design for paper-box covers was held copyrightable in 1910 in De Jonge _v._ Breuker & Kessler, in the U. S. Circuit Court, by Judge McPherson, who also held that the same subject could not be protected both under copyright and as trade-mark. {Sidenote: Illustration} That an illustration of a person, incident or scene in a copyright work is not an infringement of its copyright, was indicated in 1909 in Harper _v._ Kalem Co., in the opinion of the U. S. Circuit Court of Appeals in New York, through Judge Ward, who said: "As pictures only represent the artist's idea of what the author has expressed in words, they do not infringe a copyrighted book or drama and should not be enjoined." That illustrations may be protected as part of a book without reference to the engravings act, was held in Marshall _v._ Bull, in 1901, in the English Court of Appeal, which held also that though electrotype blocks had been legally sold, unauthorized reproduction from such blocks constituted infringement. {Sidenote: Description of artistic work} Likewise, a description in words of a copyrighted work of art is probably permissible without infringement of copyright, when the work is published or publicly exhibited. But this does not hold good in the case of an unpublished or privately exhibited work, as was held in 1849 in the case of Prince Albert _v._ Strange, where a descriptive catalogue of unpublished etchings by Queen Victoria and the Prince Consort was enjoined, as well as the exhibition of prints therefrom unlawfully obtained. {Sidenote: Portraits} In the case of portraits, whether by painting, sculpture or photography, an important question as to ownership arises. A portrait paid for by the subject or a person other than the artist is the property, for copyright as well as other purposes, exclusively of that person; but if an artist produces a portrait at his own expense, even if by the suggestion of another person, the right to copyright remains with the artist. The general principle was best stated by Judge Wheeler in 1894, in the U. S. Circuit Court in New York, in Press Pub. Co. _v._ Falk, where the _World_ was held to have infringed the copyright in the photograph of an actress, copyrighted by the photographer and not paid for by her, though a complimentary copy, given to the actress, had been sent by her to the newspaper. "When a person has a negative taken and photograph made, for pay, in the usual course, the work is done for the person so procuring it to be done, and the negative, so far as it is a picture or capable of producing pictures of that person, and all photographs made from it, belong to that person; and neither the artist nor any one else has any right to make pictures from the negative or copy the photographs, if not otherwise published, for any one else. But when a person submits himself or herself as a public character to a photographer for the taking of a negative, and the making of photographs therefrom for the photographer, the negative and the right to make photographs from it belong to him. He is the author and proprietor of the photograph, and may perfect the exclusive right to make copies by copyright." The same principle was upheld in the closely similar English case of Ellis _v._ Ogden, in 1894, by Justice Collins in the Queen's Bench Division. But in the case of Ellis _v._ Marshall, in 1895, Justice Charles in the same court held that where two actors had been invited by a photographer to sit for him in costume and some photographs had also been taken in plain clothes, of which the actors purchased copies, they were entitled to authorize publication in a magazine. It may be noted that New York and other states have statutes forbidding portraiture of persons without their consent; but this prohibition would probably not apply to photographing of a crowd, unless the portrait of a special person were lifted out or made prominent. A photographer may not exhibit a photograph of a patron, as in his shop window, without the sitter's consent. {Sidenote: Right of employer} The employer of an artist in other work as well as portraiture may become _ipse facto_ the copyright proprietor. In 1871, in Stannard _v._ Harrison, where a wall map had been made by an engraver from rough sketch and material and from directions given by the plaintiff, the English Court of Chancery, through Vice-Chancellor Bacon, held: "That the plaintiff cannot draw himself is a matter wholly unimportant if he has caused other persons to draw for him. He invents the subject of the design beyond all question ... this is a work of diligence, industry, and for aught I know of genius on the part of the plaintiff." This case, which arose under the engravings acts in England, where an engraving may be copyrighted by an employer,--though the engraver of his own original design is the only person entitled to copyright,--is of wide bearing throughout artistic copyright. On the other hand, in 1898, in Bolton _v._ London Exhibitions Co., Justice Mathew in the Queen's Bench Division held that the employer, who had given to the engraver only a "general idea" of what he desired, was not the party liable for infringement. {Sidenote: Photographs} Photographs, a modern development since the early copyright laws, were first included with negatives in the American act of 1865, in respect to which the action of Congress was upheld by the U. S. Supreme Court in 1884 in the decisive case of Burrow-Giles Lith. Co. _v._ Sarony, and in the English fine arts copyright act of 1862. They are specifically named (sec. 5, j) in the new American code, and are included specifically or impliedly under copyright protection in most countries. The peculiar circumstance that the skill of the photographic artist is not necessarily shown in the composition of the picture taken, but more usually in the selection of subject or point of view and treatment in the process, leads to complexities as to authorship, ownership, etc. It is unnecessary and indeed undesirable to copyright separately a photograph of a copyrighted work, of which the general copyright is comprehensive of all reproductions, but the original copyright notice including the name of the artist must appear on each photograph or its mount. An original photograph of an uncopyrighted or uncopyrightable subject may be copyrighted as a photograph, as was held with respect to natural scenery in 1903, in Cleland _v._ Thayer, in the U. S. Circuit Court of Appeals, where a colored photograph of a Colorado pass was protected. Where a photographer had posed a woman and a child characteristically, Judge Wheeler in the U. S. Circuit Court in New York held, in 1891, in Falk _v._ Brett Lith. Co., where defendant had merely reversed the photograph in a lithographic reprint, that the photograph was copyrightable and that the photographer was the author. And this doctrine, that the posing and treatment of a photograph subject gave justification for copyright, was also upheld in the case of a portrait of an actress in the same year in Falk _v._ Gast by Judge Coxe. In the English case of Bolton _v._ Aldin _et al._, in 1895, Justice Grantham in the Queen's Bench Division held that the photograph of a tiger was infringed by a drawing from the photograph published in the _Sketch_ magazine. But the copyrighting of a photograph of an uncopyrighted subject cannot prevent the photographing of the same subject independently by others, nor can the use of a "general idea" be prevented. Under the new American code, the fee for registering a photograph is but fifty cents, if a certificate is not desired, and the new Copyright Office Rules hold that in moving picture films only one registration is requisite, "the entire series being counted as a single photograph." {Sidenote: Tableaux vivants and moving pictures} Whether living pictures, _tableaux vivants_, infringe a work of art, is a difficult question, determinable only by the circumstances of each case. Moving pictures telling a dramatic story may infringe a dramatic or even literary work, as well as possibly a work of art, as was decided in the case of Harper _v._ Kalem Co. But the House of Lords, in 1894, in the case of Hanfstaengl _v._ Baines, where the proprietor of the copyright in paintings sued the proprietors of the _Graphic_ for reproducing by sketches living pictures exhibited at a music hall, patterned after the paintings, decided that the word "design" in the English law did not cover the _tableaux_ at the music hall. It is probable, however, that an exact reproduction, as nearly as may be, of a painting at a public place, might be held an infringement. In 1903 the Circuit Court of Appeals through Judge Buffington, in Edison _v._ Lubin, overruled the defense that each picture making up a moving picture series should be separately registered for copyright. But separable parts of a composite design, when used separately, must bear separate copyright notice, as was held in 1910 in De Jonge _v._ Breuker & Kessler by Judge McPherson in the U. S. Circuit Court. {Sidenote: Exclusions and inclusions construed} A shadow-trick perforated card, giving an outline of the picture "Ecce Homo" when held between a light and a screen, was held by Vice-Chancellor Bacon, in Cable _v._ Marks, in 1882, not to be subject of copyright. Playing cards have been included as prints by an English decision. {Sidenote: Architectural works} Architectural works are not protected as such under the American code, the decision of the Congressional Committees being adverse to this proposal. They are specifically included in the new British code. It is possible that they might be included under the general designation of works of art, and drawings or models for buildings might be copyrighted as "drawings or plastic works of a scientific or technical character." The question, however, is one of much doubt. In 1903, in Wright _v._ Eisle, the Appellate Division of the N. Y. Supreme Court, through Judge Woodward, held, where an architect had filed plans with the building department which he claimed were copied in a house of the defendant, which plans had not been copyrighted, that the filing of the plans in a public office constituted publication and as there were no copyrighted copies, there was no case at common or copyright law. {Sidenote: Copy of a copy} A copy of a copy is an infringement of the original work and incidentally of the direct copy, unless the latter is published without proper copyright notice by authority of the proprietor of copyright in the original. This was held in 1892, in Lucas _v._ Williams, by the Queen's Bench, where a photograph from an engraving was held an infringement of the original painting; and the decision of Judge McPherson in the U. S. Circuit Court in Pennsylvania non-suiting, in Champney _v._ Haag, in 1903, the proprietor of a copyright painting because the offending photograph infringed only the copyrighted photograph from which it was directly taken, is not considered good law. A photograph may infringe the copyright in statuary, as was held in 1907, in Bracken _v._ Rosenthal, in the U. S. Circuit Court. {Sidenote: Alterations} As to altered copies and alterations, there have been many judicial decisions, the gist of which is that a copy is not less an infringement because it alters details, provided there is copying of a substantial part; that a copy in another medium not exactly reproducing the original or a copy of it, is nevertheless an infringement; that a substantial alteration, or adaptation of an existing work, may in itself be copyrightable, but that slight alterations will not justify the copyrighting of a work in the public domain; and that an artist has the right to prevent alteration of his original work by a subsequent owner, as involving damage to his professional reputation. Where a copyrighted portrait of Lillian Russell was combined with a portrait of another actress, the composite photograph was held to be a violation of the copyright, in Springer Lith. Co. _v._ Falk, in 1894, by the U. S. Circuit Court of Appeals, through Judge Lacombe. So in the English case of Bolton _v._ London Exhibitions Co., in 1898, where a lithographer copied the outline of a lion from a copyrighted photograph, and filled in details from natural histories in making a circus poster, Justice Mathew in the Queen's Bench Division held that there had been reproduction of the photograph and that a work of art had been "vulgarized unlawfully." Where certain etchings and engravings had been copied by the Brooklyn Photogravure Co., omitting the tints, plate mark and title, it was held in 1892, in Fishel _v._ Lueckel, by Judge Townsend in the U. S. Circuit Court in New York that this was an infringement; said Judge Townsend: "The appropriation of a part of the work is no less an infringement than the appropriation of the whole, provided 'the alleged infringing part contains any substantial repetitions of any material parts which are original and distinctive." And where a photograph of Julia Marlowe was reproduced in a lithograph, with many points of dissimilarity, some of them because of difference in process, it was held in Falk _v._ Donaldson Lith. Co., in 1893, by Judge Townsend in the U. S. Circuit Court in New York, that the differences did not constitute a defense. In Dr. Gaunsaulus's book, "The Man of Galilee," well-known pictures were altered substantially and artistically, as by the omission of a spinning wheel from a picture of the Nativity. Copies made from these illustrations were enjoined, though the original pictures were non-copyrighted, in Monarch Book Co. _v._ Neil, in 1900, by Judge Grosscup in the U. S. Circuit Court in Illinois. But a slight alteration, by the addition on the negative of a cane, thus put into the hands of a person in a photograph not copyrighted in its original form, was held not to justify copyright, in Snow _v._ Laird, in 1900, by Judge Woods in the U. S. Circuit Court of Appeals. In the N. Y. Supreme Court, in the common law case of Dodge _v._ Allied Arts Co., in 1903, where the plaintiff had painted four historical scenes on commission which the defendants proposed to have altered, an injunction pending suit was granted by Judge McCall, thus upholding the common law or equity right of an artist to be protected against such misuse of his work. {Sidenote: Remedies} For the infringement of a work of art the copyright proprietor is entitled (sec. 25) to an injunction, the forfeiture of infringing copies and to damages "as well as all the profits ... or in lieu of actual damages and profits such damages as to the court shall appear to be just," not less than $250 nor more than $5000, except that "in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed $200 nor be less than $50." These damages, within the limits stated, may be assessed by the court in the case of painting, statue or sculpture at ten dollars, and in the case of any other works at one dollar, "for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees." Under the old law, damages were confined to copies found in possession, and the courts were constrained to apply this literally though in several recorded cases with evident injustice. {Sidenote: Artistic copyright term} Copyright in artistic works in the United States has always been covered under the general copyright acts, including the code of 1909 providing for copyright for twenty-eight and renewal for a second twenty-eight years, and this is true also in Canada and Newfoundland, where the term is for twenty-eight with renewal for fourteen years. The Australian code of 1905 covers artistic copyright specifically in part IV of the act, which provides for the general term of forty-two years from "the making of the work" or life and seven years, whichever the longer, but confines it to artistic work "which is made in Australia." {Sidenote: British practice} Artistic copyright in Great Britain, on the contrary, has been protected by several concurrent acts beginning with the engraving copyright acts of 1734 and 1767 and including the prints copyright act of 1777, the sculpture copyright act of 1814, the prints and engravings copyright (Ireland) act of 1836 and the fine arts copyright act of 1862 covering paintings, drawings and photographs, previously unprotected,--all forming part of the English law until repealed by the new code. Under these several laws, the copyright term for paintings, drawings and photographs has been the life of the author and seven years, for engravings twenty-eight years from first publication and for sculpture fourteen years from first publishing and renewal for fourteen years. Under the act of 1862--which did not afford protection outside the United Kingdom, as was affirmed by the Privy Council in 1903, upholding a Canadian decision, in Graves _v._ Gorrie--copyright in artistic works began with the making of the work wherever made (except that a foreigner must be resident in England apparently at the time of making) and did not depend upon publication; but the international copyright act of 1844 nevertheless denied protection in Great Britain where a work was first published in a country outside of treaty relations. Registration at Stationers' Hall, at a cost of one shilling, has been a prerequisite to protection. The right to copyright lapsed when the original work was sold by the artist without previous registration or written reservation, a provision applied in 1909 in Hunter _v._ Clifford. {Sidenote: Sculpture provisions} An original work of sculpture was protected only if first published within the British dominions, if by a British subject or resident, provided it bore the proprietor's name and date of first publication; and renewal for a second fourteen years was possible only if the author was then alive and held the copyright. Toy soldiers, artistically modeled, were protected in England as a work of sculpture by Justice Wright in Britain _v._ Hanks, in 1902. Common law protected until and statute law after publication, _i. e._ when the public in general is first permitted to view the work. {Sidenote: Engraving provisions} An engraving was protected in Great Britain and Ireland, if first published (and probably also made) within the British dominions, provided it bore the proprietor's name and date of publication. Prints, as by lithography or otherwise, were included with engravings; maps, charts and plans were, however, included as books under the general copyright act. Also engravings which are part of a book enjoy the wider protection of the general copyright act. The sale of the plate of an engraving probably does not transfer the copyright, unless intention to do so is clearly evident. {Sidenote: The new British code} The new British code includes as an "artistic work" under the general copyright provisions, "works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs." Architectural works are protected only as regards artistic character or design as distinguished from process or methods of construction. Photographs have the exceptional term of fifty years from the making of the original negative, and the owner of such negative at the time of making is considered the author. Registration is no longer required. {Sidenote: Foreign countries} Works of art are protected in most foreign countries either impliedly or specifically under general copyright legislation, although sometimes by special laws. France covers artistic works "whatever may be the merit, use or destination of the work"; the Scandinavian countries include specifically drawings, etc., "not works of the fine arts"; in India copyright is extended in industrial designs to "some peculiar shape or form given an article, but not the article itself." Architectural works are protected in France, Luxemburg and Brazil, but in most countries only architectural plans, drawings, designs, figures, or models and not buildings are covered. Geographical and topographical drawings and technical drawings, maps and charts, illustrations, engravings, in some cases lithographs, photographs, and negatives are among classes specified in many countries. In some countries the term of copyright is different in the case of artistic works. Luxemburg has the peculiar provision that portraits may not be reproduced until twenty years after the death of the person portrayed. Photographs are in several countries protected for a shorter term, frequently five years from taking, publication or registration as the case may be; in Norway the copyright may not extend beyond the death of the photographer. {Sidenote: Berne convention, 1886} When the International Copyright Union was created at Berne in 1886, artistic works were conjoined with literary works under like protection throughout the convention and they were specified (art. IV) as covering "works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architecture, or science in general; in fact, every production whatsoever in the ... artistic domain which can be published by any mode of impression or reproduction." In the final protocol it was specifically provided: "(1) As regards article IV, it is agreed that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legislation, except in the case of international engagements already existing, or which may hereafter be entered into by them. It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights." {Sidenote: Paris declaration; 1896} In the amendatory act adopted at Paris in 1896, the final protocol of 1886 was modified respecting architectural and photographic works as follows (1, a, b): "In the countries of the Union in which protection is accorded not only to architectural designs, but to the actual works of architecture, those works are admitted to the benefit of the provisions of the Convention of Berne and of the present additional act. "Photographic works, and those obtained by similar processes, are admitted to the benefit of the provisions of these acts, in so far as the domestic legislation allows this to be done, and according to the measure of protection which it gives to similar national works. "It is understood that the authorized photograph of a protected work of art enjoys legal protection in all the countries of the Union, within the meaning of the Convention of Berne and the present additional act, as long as the principal right of reproduction of this work itself lasts, and within the limits of private conventions between those who have legal rights." {Sidenote: Berlin convention, 1908} In the Berlin convention of 1908, artistic works were defined (art. 2, par. 1) by specification as "drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences,"--thus covering architectural works under general copyright. It was further provided by the convention of 1908 (art. 2, par. 4) that "works of art applied to industry are protected so far as the domestic legislation of each country allows." And article 3 provided: "The present Convention applies to photographic works and to works obtained by any process analogous to photography. The contracting countries are pledged to guarantee protection to such works." {Sidenote: Exhibition not publication} By the interpretative declaration adopted at Paris in 1896, it was specifically provided (sec. 2): "By _published_ works must be understood works actually issued to the public in one of the countries of the Union. Consequently,... the exhibition of a work of art, does not constitute publication in the sense of the aforementioned Acts." In the Berlin convention of 1908 it was similarly provided (art. 4, par. 4) that "the exhibition of a work of art and the construction of a work of architecture do not constitute publication." {Sidenote: Pan American Union} In the Pan American Union, the Buenos Aires convention of 1910 covers artistic works on the same basis as literary works, without special provisions. XIV INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" AND "UNFAIR COMPETITION" {Sidenote: Piracy} The word "piracy," since that gentle craft has disappeared from the high seas, has come commonly into use to mean free-booting with reference to literary property. In this sense it is used as early as 1771 by Luckombe in his history of printing, in which he says: "They ... would suffer by this act of piracy, since it was likely to prove a very bad edition." It was especially applied in America more or less jocularly in the days when there was no legal protection for works by English authors, to the reprinting chiefly of English novels without authority from or payment to their authors, when publishers whose imprints were chiefly on such reprints were commonly known as pirates. This secondary meaning has been accepted by the dictionary makers, and the use by English law authorities, and now in the new American code, of the phrases "pirated works" and "piratical copies," gives the word specific legal _status_. It is the comprehensive term now in common and legal use to mean the stealing of an author's work by reprinting it in full or in substantial part without the authority of the copyright proprietor, and is in fact an infringement at wholesale or otherwise of the author's exclusive right. This is of course prohibited by the law to the full extent of its jurisdiction and is punishable as prescribed in the law. {Sidenote: Test of piracy} "The true test of piracy," said Judge Shipman in the U. S. Circuit Court in 1875, in Banks _v._ McDivitt, is "whether the defendant has in fact used the plan, arrangements and illustrations as the model of his own book, with colorable alterations and variations, or whether his work is the result of his own labor, skill and use of common materials and common sources." Judge Story said in 1841, in Folsom _v._ Marsh: "If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient in point of law to constitute a piracy _pro tanto_. The entirety of the copyright is the property of the author and it is no defence that another person has appropriated a part and not the whole of any property." {Sidenote: Infringement in specific meaning} Infringement is commonly taken to mean specific invasion of the author's rights rather than wholesale piracy; and the question of what is infringement or "literary larceny" is more often a question of the interpretation of the facts than the construction of the statute. The legal cases arising under infringement constitute a very large proportion of copyright litigation, demanding as they do judicial determination as to the acts complained of in each particular case. It is therefore impossible in this volume to give citations or references for the hundreds of cases recorded in the law reports or in the various works on copyright, but it may be noted that the foot-note citations in MacGillivray's "Law of copyright" cover a very large number of American as well as English cases. No treatise on copyright can apply, however, in advance, the general principles of copyright to the infinite variety of possible cases; and only generalizations and a few illustrative cases can here be given. {Sidenote: Questions of fact and intent} Infringement is a question of fact rather than of intent. It is not a valid defense that the infringer is ignorant; nor, on the other hand, can any one be held for intention to infringe, where the act of infringement has not been accomplished. The new American code, nevertheless, recognizes knowledge and intent in certain cases of punishment or damages by the use of the words "willfully" and "knowingly." The letter of the law is in general that the infringer must be held responsible and must make good any damages suffered by the copyright proprietor, but proof that he had no guilty knowledge or intent may effect mitigation of punitive damages. The trend of court decisions and of judicial opinion does not seem to be evident and consistent in this development; but it may perhaps be said that while copyright law is more closely applied from the letter of the statutes, in the legal aspect, the principles of equity have been given freer play where the statute is not specific and definite. In 1899, in Green _v. Irish Independent_, the English Court of Appeal held that the proprietors of a newspaper who had printed an advertisement containing an illustration which the advertiser had license to use only for specified purposes, were liable for penalties, though they did not know that the illustration was copyrighted; and in 1902, in American Press Assoc. _v._ Daily Story Pub. Co., the U. S. Circuit Court of Appeals held the defendants liable, though they had innocently copied from a newspaper reprint which had inadvertently omitted the copyright notice. But in 1898 Justice Mathew, in Bolton _v_. London Exhibitions, declined to hold the defendants punishable, because they did not know that the lithographer from whom they had ordered a poster had infringed the copyright of a photograph. {Sidenote: "Fair use"} "Fair use" means quotation from or other use of an author's work within the evident meaning or judicial construction of the copyright statute, and is the usual answer of the defendant to a complaint that he has taken without authority some portion of the author's work or utilized in some way the result of the author's labors. The borderland between infringement and "fair use" is peculiarly and necessarily one of uncertainty, not so much because of ambiguity in the statute as of difficulty in determining the extent of use within which it is said _non curat lex_. No statute can be so clear or so complete as to obviate questions of this kind. In general there must be copying of a material or substantial part. What is a material or substantial part, constituting infringement, is a difficult question of fact. {Sidenote: Principle of infringement} "Copying is not confined to literal repetition," said Judge Clifford, in Lawrence _v._ Dana, in the U. S. Circuit Court in 1869, "but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colorable alterations to disguise the source from which the material was derived; nor is it necessary that the whole, or even the larger portion of the work, should be taken in order to constitute an invasion of copyright." The Chancery Division, through Lord Chief Justice Alverstone, took the extreme course in Trengrouse _v._ "Sol" Syndicate, in 1901, of holding a work an infringement, though less than a page was taken from the plaintiff's football guide. {Sidenote: Infringement by indirect copying} Infringement may be by indirect as well as by direct copying. In the case of Cate _v._ Devon in 1889, in the Chancery Court, the defense that the copying was not from the original copyright work but from a newspaper reprint, was rejected. Infringement may be through quite a different medium from the original; thus a shorthand reproduction of a lecture on "The dog as the friend of man," published in a text-book of shorthand, was held in the Chancery case of Nichols _v._ Pitman, in 1884, to be an infringement of the lecture as much as if in ordinary type. {Sidenote: Exceptions from infringement} The doctrine of infringement cannot be invoked to obtain monopoly of any particular subject, and the authorized biographer of President Garfield was denied relief in 1889, in Gilmore _v._ Anderson, when he sought to prevent the publication of a life of Garfield by another writer. Nor will mere similarity of treatment of the same subject constitute infringement. A copyright owner cannot prevent another person from publishing the matter contained in his book, if invented or collected independently, or from making "fair use" of its contents. Two map-makers, collecting at first hand the same _data_, would naturally make the same map, and each would equally be entitled to copyright. In this respect, copyright law differs from patent law, where a first use bars others from the same field. It has even been held that the collected material might be used by a second compiler as a guide in a second compilation, if subjected to original verification, as in the case of a street directory. But in the case of rival Boston directories in 1905, the U. S. Circuit Court of Appeals held, in Sampson & Murdock Co. _v._ Seaver Radford Co., that a verification by actual canvass from a list of discrepancies made up from the earlier work was beyond fair use. {Sidenote: Infringement by abridgment and compilation} Abridgments were construed by early English decisions not to be infringements, and this precedent was followed, reluctantly and often with protest, in later cases by English and American judges, as set forth in the chapter on subject-matter. Later copyright provisions,--as by use of the word "_retranchements_" in the Berne-Berlin conventions, and the specific authorization in the American code "to make any other version thereof," and for copyright of an abridgment of a work in the public domain,--directly or by implication, make abridgment an infringement and free the courts to take this view. Compilations also constitute infringement if they extract substantial parts of a copyright work, beyond the limits of "fair use," or even if they adopt the plan or arrangement or bodily transfer the material of a copyright compilation of non-copyright matter. {Sidenote: Abridged compilations} A curious complaint of infringement by abridgment was made in Gabriel _v._ McCabe, in 1896, before Judge Grosscup in the U. S. Circuit Court in Illinois, where the plaintiff had licensed the use of a copyright song, "When the roll is called up yonder," in a collection of religious poetry, "The finest of the wheat, no. 2," published by the defendant, who included the song also in an abridged edition of this collection and in a combined edition of this and another collection. Judge Grosscup held that: "Future editions of a book may contain a composition published in an earlier edition by license, even though parts of the earlier edition are omitted.... To hold otherwise would practically forbid any new editions of books of compilations, for the consent of all the authors contributing could not, in many instances, be obtained." But if the collection had been so abridged as to result in the publication of the song alone as sheet music, it would have been an unfair use under the license. {Sidenote: Separation of infringing parts} The general principles as to quotation beyond "fair use" were well laid down by Lord Chancellor Eldon, in the early English case of Mawman _v._ Tegg, in 1826: "If the parts which have been copied cannot be separated from those which are original, without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must suffer the consequences of so doing. If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses in any work to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the parts of the work cannot be separated, and if by that means the injunction, which restrained the publication of my literary matter, prevents also the publication of his own literary matter, he has only himself to blame." {Sidenote: Law digests} The difficult question of the extent to which a compiler may utilize the materials of another has come especially to the front in the American courts with reference to law digests and reports, within recent years. In 1896, in Mead _v._ West Pub. Co., concerning rival annotated editions of "Stephen on pleading," then out of copyright, where the defendant's editor admitted having clipped the text from the complainant's edition and having obtained some ideas or suggestions from it, Judge Lochren, in the U. S. Circuit Court in Minnesota, held that there was no infringement because non-copyright matter could not be protected in a copyright work from such clipping, because the defendant's notes were original even though suggested from the other, and because the few errors and citations in common were immaterial since there were many new citations and the work was on the whole the result of original research. That bodily transfer of citations is beyond "fair use" was emphasized by Judge Ray in White _v._ Bender, in 1911. {Sidenote: Proof from common errors} As to proof from common errors, it had been held in 1895, in the case of Chicago Dollar Directory Co. _v._ Chicago Directory Co., that the later work, containing sixty-seven errors found in the other, was evidently an infringement of the earlier compilation. In Bisel _v._ Welsh, _Re_ Brightly Pennsylvania reports, in 1904, the U. S. Circuit Court held that repetitions of errors in citations were evidence of infringement by the author of his own reports published under an earlier contract by the plaintiffs; and in 1911, in Shepard _v._ Taylor, Judge Hazel held that common errors were _prima facie_ proof of infringement. {Sidenote: Infringement in part} {Sidenote: No infringement of piracies or frauds} In the important case of West Pub. Co. _v._ Lawyers' Pub. Co., where a collection of selected cases and a general digest were alleged to be infringements of the plaintiff's reports and monthly digests, Judge Coxe in the U. S. Circuit Court enjoined 303 proved "instances of piracy" but not the remaining portions of the digest, but in 1897 the U. S. Circuit Court of Appeals, through Judge Lacombe, held that under such circumstances the burden of proof must be on the unfair user and broadened the decision by issuing an injunction against the work as a whole, excepting those parts which were public property. In 1910, in Park & Pollard _v._ Kellerstrass, Judge Philips enjoined the whole work because the infringing parts were not separable. In 1903, in Thompson Co. _v._ American Law Book Co., where the editor of the defendant's law encyclopædia had made a list of cases cited in complainant's work, which included material "pirated" by the complainant from copyright works, the Circuit Court of Appeals, reversing the lower court, held through Judge Coxe that there was no infringement, because the only use made of the list was to guide the defendant to the reports and because the complainant had no standing in equity. "If the defendant was guilty of piracy, so was the complainant; and equity will not protect a pirate from infringements of his piratical work." To like effect in Slingsby _v._ Bradford Co., in 1905, Justice Warrington, in the Chancery Division, held that the plaintiff could not recover against an evident copying because his own catalogue was fraudulent in advertising as patented articles not so protected, and a fraud will not be protected. In the later case of West Pub. Co. _v_. Thompson Co., where the publishers of the original reports and digests sought to restrain the Thompson encyclopædias, the Circuit Court of Appeals held that while a compiler may use a copyright digest by making lists from which to run down cases, which is "fair use," extensive copying or paraphrasing of the language of the digest, whether to save literary work or mechanical labor, constitutes an infringement. The case was sent back to the lower court for rehearing and assessment of damages and was settled in 1911 by an agreement involving transfer of the encyclopædia to the plaintiff. Reference to a copyright work giving pagination is not an infringement, as was decided in 1909, in Banks Law Pub. Co. _v._ Lawyers Co-operative Pub. Co., in the U. S. Circuit Court of Appeals. {Sidenote: Quotation} Whether simple quotation constitutes an infringement or is "fair use," depends upon extent and in some respects upon purpose. In 1892 Justice North, in the English Court of Chancery, in Walter _v._ Steinkopff, held that the use by the _St. James Gazette_ of two fifths of an article by Kipling, copyrighted by the _Times_, was beyond "fair use" of quotations, notwithstanding the newspaper custom of copying from one another. On the other hand, quotations in a review of a book made to reasonable extent for the purposes of criticism, have usually been considered "fair use," provided they do not go to the extent of a description or abridgment which would be measurably a substitute for the book. {Sidenote: Private use} The multiplication of copies by handwriting or other process for private use, as among the members of an orchestra or in a business office, has been held an infringement in English decisions, though prohibition of the making of a single copy for personal use would be an extreme application of this doctrine, and such use is specifically permitted in the new English code. {Sidenote: The doctrine of "unfair competition"} Beyond the purview of copyright law, there is a means of legal remedy for the copyright proprietor which can be enforced by state as well as by federal courts, resting either upon statutes outside the copyright law, or on the general principles of equity. This is the application of the doctrine of "unfair competition" especially in cases involving "fraud" or fraudulent representation, direct or implied, leading the purchaser to buy something other than what he supposes he is buying. Thus if a publisher prints and binds a book with a title and in a style that leads a purchaser to suppose that it is another book which he is buying, the publisher of the other book has the right to obtain equitable relief by an injunction from the transgressor on the ground of unfair competition without any reference to copyright law, although this doctrine is more applied in the case of patents, trade-marks and copyrights than perhaps any other field. {Sidenote: The doctrine of deceptive intent} There is also evident a growing tendency on the part of the courts to protect the public from possible deception especially if done with fraudulent intent, where some distinctive name or symbol or form associated with some line of product is used for another line of product of different origin and character, though there may be here no direct competition; but this comparatively new doctrine is more likely to be used in regard to trade-mark articles than in respect to literary and like property. It might, however, apply in a case where a well-known publishing house had published, for instance, a popular series of school books as Smith's Arithmetical Readers and another firm containing the same name had started to publish a Smith's Algebraic Readers--but the application would be extremely doubtful. {Sidenote: The "Chatterbox" cases} In the Chatterbox cases, 1884-1887, previously referred to, the final decision of Judge Shipman emphasized the view that the use of the title "Chatterbox" on a similar publication was misleading to the public, thus bringing both trade-mark law and common law protection to the rescue against unfair competition. {Sidenote: Encyclopædia Britannica cases} In the series of Encyclopædia Britannica cases, 1890-1904, the English publishers Black or their American representatives Scribner sought to protect in this country the English edition, or an American authorized edition, under the copyright law previous to 1891, copyrighted articles by Americans being included, and under common law because of the alleged fraudulent misuse of the name to mislead the public. In 1893, in Black _v._ Allen, Judge Townsend held that the use of copyrighted material in a non-copyright work did not vitiate the copyright, that the American author was entitled to secure and protect copyright even though the right to use was assigned to an English house which could not directly secure copyright, and that the fact of discrepancy in the title of the copyrighted articles as registered for copyright on separate publication and deposit and in the cyclopædia, did not endanger the copyright. In 1904, in Encyclopædia Britannica Co. _v._ Tribune Association, Judge Lacombe in the U. S. Circuit Court enjoined condensations of the copyrighted American articles. But in Black _v._ Ehrich and other cases, the complainants were not successful in obtaining an injunction against the use of the title Encyclopædia Britannica on reprints of non-copyright material which did not mislead the public. {Sidenote: Webster Dictionary cases} In the Webster Dictionary cases in 1890-1909, a long litigation between the Merriams, as authorized publishers of Webster, and Ogilvie and other defendants, the courts held that the use of the name Webster or the title Webster's Dictionary could not be restrained when used in connection with a reprint of the original Webster Dictionary, then out of copyright, or otherwise in a manner not likely to mislead the public; but injunctions were granted and sustained against the use of these names on dictionaries issued in form so like the Merriam editions as to deceive the public, or in connection with misleading advertisements or circulars. {Sidenote: "Old sleuth" cases} In 1888-1890 George Munro, publisher of the "Old sleuth" detective series, sought in actions against several defendants to protect the use of the name "Sleuth" and was upheld in the N. Y. Supreme Court in separate decisions by Judges Andrews, O'Brien, and Patterson, while in one of the cases Judge Ingraham held that "sleuth" was a dictionary word and could not be protected; in 1889 the N. Y. Court of Appeals through Chief Judge Parker decided that the name "Sleuth" was protectable, and in 1890 Judge Macomber of the N. Y. Supreme Court held that "Sleuth" was properly a subject of trade-mark. But in 1890 also, Judge Shipman in the U. S. District Court dismissed the complaint in another Munro case, as to an illustration picturing "Old Sleuth," on the ground that though of the same subject it was not of the same character. These cases illustrate the difficulty of decisions in this borderland of equity. {Sidenote: Other title decisions} In 1894 Judge Green, in the U. S. Circuit Court in New Jersey, in Social Register Association _v._ Howard, protected on grounds of equity the title "Social register" as descriptive of a social directory covering Orange, N. J., and enjoined the use of "Howard's Social register" as unfair competition. In 1887 the Harper house, as publishers of the _Franklin Square Library_, obtained from the U. S. Circuit Court, through Judge Waite, an injunction against the Franklin Square Library Company for violation of their trade-mark rights in the name. {Sidenote: Rebound copies} Where the American Book Co. brought suit against Doan & Hanson, who had restored and rebound used copies of school books, the U. S. Circuit Court of Appeals held in 1901 that there was no violation of law, but required notice that the books were second-hand copies by conspicuous stamp on the cover. In 1891 the Pennsylvania Supreme Court, in Dodd _v._ Smith, declined to grant Dodd, Mead & Co. an injunction against rebinders who had purchased from them sheets of a fifty-cent paper-covered edition of a novel by E. P. Roe and bound these in cloth to sell at sixty cents in competition with the plaintiff's $1.50 cloth edition. {Sidenote: The Kipling case} In 1899 G. P. Putnam's Sons purchased from Kipling's authorized publishers sheets of twelve volumes, added three volumes of non-copyright or otherwise authorized material and published the fifteen volumes, "Brushwood edition," of Kipling's works, with the design of an elephant's head on the binding. Kipling sought an injunction for infringement of copyright, use of trade-mark and unfair competition with the "Outward bound edition" of his works, which also bore an elephant's head. In 1903 the U. S. Circuit Court of Appeals, through Judge Coxe, affirmed a decision holding as "a well-recognized principle of law" that "the defendants, having purchased unbound copyrighted volumes, were at liberty, so far as the copyright statute is concerned, to bind and resell them"; that the elephant's head, not being a registered trade-mark, could not be protected as a trade-mark; and that there was no similarity of editions constituting unfair competition. But in 1907, in Dutton _v._ Cupples & Leon, the plaintiffs obtained damages for a series of books closely imitating the get-up of their "Gem" or "Dainty" series. Passing off, however, cannot be made ground of action when material protectable by copyright has not been copyrighted, as was held in 1908, in Bamforth _v._ Douglas Post Card Co., by Judge McPherson in the U. S. Circuit Court. {Sidenote: Burlesqued title} The suit to enjoin the use of a reversed or burlesque title, when the _Boston Herald_ printed, under the title of "Letters of a son to his self-made father," a skit on Lorimer's "Letters of a self-made merchant to his son," was denied by Judge Morton in the Massachusetts Supreme Court in 1903 as involving no deception. {Sidenote: The Drummond case} In 1894 Henry Drummond, a British subject, obtained from Judge Dallas, in the U. S. Circuit Court, an injunction restraining Henry Altemus from publishing what purported to be exact reports of twelve lectures, of which eight only had been imperfectly reported in the _British Weekly_, on the ground that the author had a common law right to restrain the publication "of any literary matter as the plaintiff's, which was not actually his creation, and to prevent fraud." {Sidenote: The new British code} The new British measure comprehensively defines infringement as the doing without consent of the owner of the copyright of "anything the sole right to do which is by this act conferred on the owner of the copyright," but specifically excepts (1) fair dealing for private study, research, criticism, review or newspaper summary; (2) use by an artist of sketches, etc., made for a work of which he has sold the copyright, provided he does not repeat or imitate that work; (3) graphic reproduction of objects, or photographing of paintings, etc., in a public place; (4) limited extracts for use in school books; (5) report of lectures unless prohibited by placard; (6) reading or recitation of reasonable extracts. XV REMEDIES AND PROCEDURE {Sidenote: Protection and procedure} It was for the protection of copyrights that the statute of Anne was passed and that statutory law thus began to replace English common law--a gain to authors sadly offset by its losses. But it was undoubtedly true that without statutory provision the proprietor of literary and similar property could not obtain the protection necessary for the enforcement of his rights. The new American code is comprehensive, detailed and specific in its legal provisions for protection and procedure, and in respect to punishment far beyond any copyright legislation on the statute books of any other nation. {Sidenote: Injunction} The first protection given by the statute is the injunction usual in equity proceedings, following the precedent of early legislation. {Sidenote: Damages} Under previous American law, damages were levied primarily on infringing copies found in possession of the infringer or his agents, with the unfortunate result that when an infringer was successful in selling his edition, few, if any, copies were found on which to levy damages. The new code thoroughly corrects this defect by providing for specified damages on infringing copies "made or sold by or found in the possession of the infringer or his agents or employees." The plaintiff is entitled to damages and all profits and is required only to prove sales, while the defendant is required to prove the elements of cost. The damages--assessed as such and not as penalties so as to free copyright litigation from the restrictions of penal proceedings--are stated as one dollar for each infringing copy, except copies of a painting, statue or sculpture on which they are ten dollars per copy; fifty dollars for each infringing delivery of an oral work; one hundred dollars for the first and fifty dollars for each subsequent infringing performance of a dramatic, dramatico-musical, choral or orchestral work; and ten dollars for each infringing performance of any other musical work. These damages shall not be less than $250 or more than $5000 in any one case, with the exception that for a newspaper reproduction of a photograph the minimum shall be fifty dollars and the maximum two hundred dollars, a concession insisted upon by newspaper proprietors. {Sidenote: One suit sufficing} Injunction, damages and profits, and delivery of infringing copies or means of production, are covered in the single suit to protect the copyright. {Sidenote: Deposit of infringing articles} During the pendency of an action the defendant may be required to deposit all articles alleged to infringe copyright, making oath that he has deposited all such, under regulations for his protection prescribed, as the law directs, by the Supreme Court, which regulations are given in full in the appendix of this volume; and when such articles are adjudged to be infringements, he must deliver up for destruction not only such infringing copies or devices, but also all plates, molds, matrices or other means for making such infringing copies as the court may order, making oath that he has delivered up all such. The text covering these provisions, with the exception of subsection (e), referring to mechanical musical reproductions, given in the chapter on that subject, is as follows: "(Sec. 25.) That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable: {Sidenote: Remedies specified} "(a) To an injunction restraining such infringement; "(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty: "First. In the case of a painting, statue, or sculpture, ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; "Second. In the case of any work enumerated in section five of this Act, except a painting, statue, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; "Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery; "Fourth. In the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance; {Sidenote: Impounding} "(c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright; "(d) To deliver up on oath for destruction all the infringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies as the court may order; {Sidenote: Supreme Court rules} "Rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court of the United States," for which see appendix. {Sidenote: Court jurisdiction} The Circuit Court, or District or other courts having circuit jurisdiction, of the United States, have original jurisdiction "of all suits at law or in equity arising under the patent or copyright laws of the United States" with appeal or writ of error to the Supreme Court of the United States. Copyright cases are brought in the first instance before a single judge sitting in Circuit Court or District Court, and thence are appealed to the Circuit Court of Appeals consisting of three or more circuit judges, and thence again to the United States Supreme Court, the final authority. These federal courts have sole jurisdiction under the copyright law as such; but copyright cases are often adjudicated in State courts on questions arising under the law of contracts or other statute or common law, regard being always given to the decisions of the federal courts as to copyright questions proper which may be involved. In other words, the State courts do not pass upon copyright law, but may apply, within the respective states, the copyright decisions of federal courts. Thus in Hoyt _v._ Bates, in 1897, Judge Putnam in the U. S. Circuit Court in Massachusetts remanded the case back to the State courts because the question was not under the copyright law as such, but regarding the ownership of copyright property. In this case the author of a play "A black sheep," containing a song "Sweet Daisy Stokes," licensed the defendant to print the song. The defendant copyrighted the song and the plaintiff sued to compel him to assign his copyright. The case illustrates the respective jurisdictions of federal and State courts in copyright matters. {Sidenote: Limitation} The United States courts have authority to enter the decrees necessary to enforce the remedies provided by the law. Important provisions of the new code provide that civil action in copyright cases may be brought "in the district of which the defendant or his agent is an inhabitant or in which he may be found"--thus preventing avoidance by the defendant possible under earlier law; and also that any injunction granted in any one district may be operative throughout the United States--a provision adopted into the law from recent legislation intended to prevent the evasion of injunctions, particularly by "fly by night" dramatic companies passing from one state or court jurisdiction into another, but usefully applicable also throughout the whole range of copyright infringements. Criminal proceedings under the copyright act may not be brought after three years from the commission of the offense. Under the former laws the District courts also had certain--or uncertain--jurisdiction. The distinction between the District courts and the Circuit courts of the United States, both of which are courts of first instance, has been so complicated and uncertain as to be practically impossible of statement--a situation which has led to a measure for the abolition of the distinction and the provision of a single court in each federal district having original jurisdiction in the first instance, from which appeal will go to the Circuit Court of Appeals and thence to the U. S. Supreme Court, or in certain cases direct to the Supreme Court. {Sidenote: Text of procedure provisions} The text of these provisions is as follows: "(Sec. 26.) That any court given jurisdiction under section thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of any provision hereof to enter a judgment or decree enforcing the remedies herein provided. {Sidenote: Proceedings united in one action} "(Sec. 27.) That the proceedings for an injunction, damages, and profits, and those for the seizure of infringing copies, plates, molds, matrices, and so forth, aforementioned, may be united in one action." {Sidenote: Jurisdiction in copyright cases} "(Sec. 34.) That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands. "(Sec. 35.) That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found. {Sidenote: Injunction provisions} "(Sec. 36.) That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants. "(Sec. 37.) That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office. {Sidenote: Appeal} "(Sec. 38.) That the orders, judgments, or decrees of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectively. {Sidenote: No criminal proceedings after three years} "(Sec. 39.) That no criminal proceeding shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose." {Sidenote: Strict compliance requisite} The copyright statutes are construed strictly, by the letter of the law, in respect to procedure as well as to other features. This is especially the case in respect to forfeiture and penalties, as where, in Falk _v._ Heffron, in 1893, 2400 copies of a copyright portrait of Lillian Russell had been lithographed, twenty-one on a sheet. Judge Wheeler in the U. S. Circuit Court in New York held with the jury that only one dollar per sheet could be recovered as penalty, because the law specified "sheets." In McDonald _v._ Hearst, in 1899, in the U. S. Circuit Court in California, Judge DeHaven held that the proprietor of the San Francisco _Examiner_ could not be held liable for copyright penalties because an employer could not be held to penal responsibility for the act of his agent. In a suit to obtain damages based on forfeiture, in Wheeler _v._ Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in Nebraska sustained a demurrer on the ground that the damages asked for depended on forfeiture and could not be obtained unless the actual forfeiture was had within the statutory limit of two years. In Morrison _v_. Pettibone, in 1897, in the U. S. Circuit Court in Illinois, Judge Seaman held that certain sheets, seized during the process of lithographing, when only one color had been printed, were not exact copies and therefore could not be forfeited. In Bennett _v._ Boston _Traveler_ Co., in 1900, the Circuit Court of Appeals, through Judge Colt, refused relief because the plaintiff had alleged infringement of a cartoon published in the New York _Herald_, which was not specifically copyrighted, instead of alleging infringement of the copyrighted newspaper of which it was a part. An extreme case was that of Child _v._ N. Y. _Times_ Co., in 1901, where the plaintiff had purchased infringing copies from the defendant, in which case Judge Hazel in the U. S. Circuit Court in New York held that as these were not literally "found in possession" of defendant, a penalty could not be collected. Several of these cases illustrate escapes from justice which will not be possible under the code of 1909, which uses broader phraseology. In Walker _v._ Globe Newspaper Co., in 1908, where no copies of a pirated map were found in possession of the defendants, the U. S. Supreme Court held that outside of statutory remedies no suit for damages could be maintained. {Sidenote: Damage not penalty} On the other hand, in the case of Brady _v._ Daly, which came before the U. S. Supreme Court in 1899, the defendants, on a question of jurisdiction, raised the issue that the old law provided for a penalty and not for damages, in denying which Justice Peckham held that: "The statute in using the word 'damages' did not mean a forfeiture or penalty, as it is difficult to prove the exact amount which the proprietor of a play may suffer by reason of an infringement. It is probable that Congress intended to provide a remedy so that the proprietor could recover a certain amount of damages without proof of what his actual loss had been. In the face of the difficulty of determining the amount of damages, a minimum sum is provided in any case, with the possibility of recovering a larger amount on proof of greater damage. The idea of punishment is not so much suggested as the desire to provide for compensation to the proprietor." This rule was applied by Judge Lacombe in Patterson _v_. Ogilvie, in 1902. {Sidenote: Other procedure decisions} In the case of Falk _v._ Curtis Pub. Co., which came before the U. S. Circuit Court in Pennsylvania twice in 1900, some important decisions or indications as to copyright procedure were given. The defense that under the copyright act the words "any person" did not include a corporation was overruled by Judge Dallas on the ground that the general statute specifically construed the word "person" to extend to partnerships and corporations. In this case an action to recover penalties and an action to replevin copies in possession were started independently and simultaneously, and the Circuit Court of Appeals through Judge Buffington affirmed the decision that as the penalties under the old act were restricted to copies "found in possession," the suit for penalties was premature. In the later case of Rinehart _v._ Smith, also in the Pennsylvania circuit, it was pointed out that an action for replevin was not the proper form of suit because in such actions bonds might be given and the forfeiture of copies thus be barred; and in Hegeman _v._ Springer, the Circuit Court in New York held, in 1901, that a replevin suit, involving prior demand, was not necessary and that the copyright statute itself gave authority for an action for seizure without previous demand, as would be necessary in replevin proceedings. It was held, however, in the Illinois circuit in an earlier case, that a suit of replevin will lie to enforce forfeiture under the copyright act. Several of these perplexities, however, are removed by the code of 1909, which expressly (sec. 27) authorizes the bringing together of all the remedies in one action. {Sidenote: Preventive action} That there can be no infringement of copyright by acts committed before the copyright was obtained, was decided in 1900 in the U. S. Circuit Court in the case of Maloney _v._ Foote, where the two parties were jointly engaged in preparing directories, and the plaintiff obtained the copyright and brought suit for infringement for the prior use of material, the question being of contract and not of copyright. On the other hand, as far as practicable, "it is the policy of the law to arrest the pirate before he actually makes off with the plunder," said Judge Coxe in the U. S. Circuit Court of Appeals, in Gannet _v._ Rupert, in 1904. {Sidenote: Party in suit} In 1903, in Champney _v._ Haag, it was held in the U. S. Circuit Court in Pennsylvania, that though a copy of a photograph of a copyright painting was an infringement, it was not the owner of the original copyright but the owner of the photograph who must sue--but this is contrary to the English ruling case of Lucas _v._ Williams, and is probably not good law. {Sidenote: Suit for injury to reputation} A curious case arose in England in 1892 as to the rights of an author after publication and transfer of copyright, in Lee _v._ Gibbings, where the plaintiff had prepared for the defendant, a publisher, at an agreed price, an edition with introduction of Lord Herbert's autobiography, which the defendant reissued in a condensed edition without the introduction and other matter by the author, though retaining his name. The author sued to restrain the condensation as an injury to his reputation, but Justice Kekewich in the Chancery Division held that this should be a suit for libel and not under copyright, and declined to enjoin the defendant before the question whether this was actually a libel was settled. {Sidenote: Damages in willful case} In a case of evident bad faith in wholesale copying, the U. S. Circuit Court in Hartford Printing Co. _v._ Hartford Directory Co. awarded as damages the gross receipts less estimated cost. {Sidenote: Penal provisions} The provisions for collecting damages and profits are supplemented in case of infringement, willfully and for profit, by penal provisions which make the offense a misdemeanor punishable by imprisonment not exceeding one year or fine not less than $100 or more than $1000, or both, in the discretion of the court, according to the following provision (sec. 28): {Sidenote: Penalty for willful infringement} "That any person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court." This provision (sec. 28) includes however a proviso exempting from prevention or punishment the performance of certain musical works for charitable or educational purposes and not for profit, which proviso is given in full in the chapter on dramatic and musical copyright. {Sidenote: Penalty for false notice of copyright} Provision is also made in the new statute for the punishment by fine, but not by imprisonment, of any person who with fraudulent intent affixes a copyright notice or its equivalent on an uncopyrighted work, or removes or alters the copyright notice in a copyrighted work, the fine being not less than $100 nor more than $1000; and of any person who shall knowingly issue, sell or import any article bearing notice of United States copyright which has not been copyrighted in this country, the fine in this case being $100, according to these provisions: "(Sec. 29.) That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars." Further provisions as to importation are given in the chapter on that subject. {Sidenote: Allowance of costs} In addition to injunction, damages and profits, delivery of copies, etc., the courts may allow costs inclusive of attorney's fees as provided: "(Sec. 40.) That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs." It seems impracticable and undesirable to attempt in this chapter a statement of the procedure under former copyright laws in this country, or under the legal methods in vogue in other countries, for which the legal authorities on local procedure and practice should be consulted. {Sidenote: The new British code} The new British measure provides the usual civil remedies of injunction, damages, account and costs in the discretion of the court. The author, or if no author the publisher whose name is indicated on the work, is _prima facie_ recognized as owner unless the contrary is proved. Infringing copies or plates become the property of the copyright owner. If the infringer proves ignorance, only an injunction will hold. In architectural works, after construction has been commenced, damages and not an injunction are provided for. Actions must be commenced within three years. Summary conviction is provided for in the case of any person knowingly and for profit or trade making, offering, distributing, exhibiting or importing infringing copies or making or having in possession infringing plates with penalty of a fine not exceeding fifty pounds, or in case of a second offense, imprisonment not exceeding two months, as also destruction or delivery up to owner of the copyright. The summary provisions of the musical copyright acts of 1902 and 1906 remain unrepealed. Under previous law there had been two notable cases of criminal punishment for conspiracy. In 1906, _Re_ Willets against a combination among cheap music publishers, where the Common Serjeant sentenced the vendors to nine months' imprisonment, and in 1910, _Re_ Bokenham, where pirates who had conspired to print surreptitiously obtained copies of Oscar Wilde's poem "De Profundis," were also sentenced to six months and lesser periods. XVI IMPORTATION OF COPYRIGHTED WORKS {Sidenote: Copyright and importation} The right to import a copyrighted book and, conversely, the right to exclude importation are rights incident to the general "exclusive right" of an author or copyright proprietor. This is recognized, in terms or inferentially, in the copyright law of most countries; and the American copyright code is exceptional and almost without precedent, save that of the preceding American law of 1891, in specifically permitting the importation of copyrighted books in stated cases, without the consent or authority of the copyright proprietor. {Sidenote: Fundamental right of exclusion} As Senator O. H. Platt in the copyright debate of 1891 said: "The fundamental idea of a copyright is exclusive right to vend, and the prohibition against importation from a foreign nation is necessary to the enjoyment of that right. The privilege of controlling the market is indeed essential." The copyright laws of foreign countries, and our own copyright legislation previous to 1891, carefully safeguard this right. When an author cannot assure to an American publisher the American market he cannot get from that publisher the price he would otherwise secure. In the "international copyright amendment" of 1891, Congress accompanied the manufacturing clause, which prohibited the importation of foreign copies even with the consent of the author, by a proviso permitting certain importations even without the consent of the author--on the homoeopathic principle of off-setting one restriction upon authors' rights by another restriction upon authors' rights. {Sidenote: General prohibitions} {Sidenote: Exceptions permitted} In general the law prohibits absolutely the importation of "piratical copies" or of works bearing a false notice of United States copyright; it also prohibits, even though with consent of the author and the copyright proprietor, the importation in the case of works subject to the manufacturing clause, of any copies not manufactured in this country--but this prohibition does not apply to books in raised characters for use of the blind; to foreign-made periodicals containing authorized copyright matter; to authorized copies of a work in a foreign language of which only an English translation has been copyrighted here; or to authorized copies published abroad when imported under specified exceptional circumstances. These exceptions permit the importation of authorized copies for individual use and not for sale, not more than one copy at a time (excepting a foreign reprint of a book by an American author); or by or for the United States; or by or for stated educational institutions, including libraries, not more than one copy at one time; or when parts of collections or libraries purchased and imported _en bloc_, or of personal baggage. Books imported under these exceptions cannot be adduced in defense of infringements, as the law specifically provides, _e.g._, as when such a book contains no proper United States copyright notice. Copies unlawfully imported may be seized and forfeited like other contraband importations under regulations of the United States Treasury, but it is provided that importations through the mails or otherwise may be returned to the country from which the importation is made on petition to the Secretary of the Treasury when there is no evidence of negligence or fraud. The Secretary of the Treasury and the Postmaster-General are jointly required to make regulations against unlawful importation through the mails. These provisions, it may be noted, are a singular mixture, almost without precedent, of acceptance and denial of the "exclusive right" of the author or copyright proprietor. {Sidenote: Text provisions} In respect to the importation of books in relation with copyright, the provisions of the American code as to prohibition and limited permission are specific and detailed, as follows: {Sidenote: Prohibition of piratical copies} "(Sec. 30.) That the importation into the United States of any article bearing a false notice of copyright when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited. {Sidenote: Permitted importations} "(Sec. 31.) That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this Act, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this Act, shall be, and is hereby, prohibited: _Provided, however_, That, except as regards piratical copies, such prohibition shall not apply: "(a) To works in raised characters for the use of the blind; "(b) To a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor, unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization; "(c) To the authorized edition of a book in a foreign language or languages of which only a translation into English has been copyrighted in this country; "(d) To any book published abroad with the authorization of the author or copyright proprietor when imported under the circumstances stated in one of the four subdivisions following, that is to say: "First. When imported, not more than one copy at one time, for individual use and not for sale; but such privilege of importation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States; "Second. When imported by the authority or for the use of the United States; {Sidenote: Library importations} "Third. When imported, for use and not for sale, not more than one copy of any such book in any one invoice, in good faith, by or for any society or institution incorporated for educational, literary, philosophical, scientific, or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school, or seminary of learning, or for any State, school, college, university, or free public library in the United States; "Fourth. When such books form parts of libraries or collections purchased en bloc for the use of societies, institutions, or libraries designated in the foregoing paragraph, or form parts of the libraries or personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: _Provided_, That copies imported as above may not lawfully be used in any way to violate the rights of the proprietor of the American copyright or annul or limit the copyright protection secured by this Act, and such unlawful use shall be deemed an infringement of copyright. {Sidenote: Seizure} {Sidenote: Return of importations} "(Sec. 32.) That any and all articles prohibited importation by this Act which are brought into the United States from any foreign country (except in the mails) shall be seized and forfeited by like proceedings as those provided by law for the seizure and condemnation of property imported into the United States in violation of the customs revenue laws. Such articles when forfeited shall be destroyed in such manner as the Secretary of the Treasury or the court, as the case may be, shall direct: _Provided, however_, That all copies of authorized editions of copyright books imported in the mails or otherwise in violation of the provisions of this Act may be exported and returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury, in a written application, that such importation does not involve willful negligence or fraud. {Sidenote: Rules against unlawful importation} "(Sec. 33.) That the Secretary of the Treasury and the Postmaster-General are hereby empowered and required to make and enforce such joint rules and regulations as shall prevent the importation into the United States in the mails of articles prohibited importation by this Act, and may require notice to be given to the Treasury Department or Post Office Department, as the case may be, by copyright proprietors or injured parties, of the actual or contemplated importation of articles prohibited importation by this Act, and which infringe the rights of such copyright proprietors or injured parties." Customs regulations as to importation of copyright articles and joint customs and postal regulations as to such importation through the mails, were issued under the law of 1909 under date of July 17, 1911, and are given in the appendix. As the copyright law forbids importation of copyright books not manufactured in this country, even with consent of the copyright proprietor, the customs regulations provide that copies imported with the copyright proprietor's assent shall be seized and destroyed by the government, while copies imported without the copyright proprietor's consent, being forfeited under the law to such proprietor, must be held by the customs authorities pending suit for forfeiture by the copyright owner or his abandonment of his right to such copies. Duties collected on books thus unlawfully imported are not refunded. {Sidenote: Supersedure of previous provisions} In relation especially to questions of importation, and in general, it is of first importance to note that the present code superseded by repeal, from July 1, 1909, all conflicting provisions, which practically means all previous copyright legislation, and that except as to infringement cases actionable at that date, the present code is the only copyright law. The provision to this effect is (sec. 63): "That all laws or parts of laws in conflict with the provisions of this Act are hereby repealed, but nothing in this Act shall affect causes of action for infringement of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law." {Sidenote: Manufacturing clause affects earlier copyrights} This principle as construed by the Treasury Department (Treas. dec. no. 30316) especially affects copies whose _status_ has been changed by the new form of the manufacturing proviso (sec. 15). A modification adds the condition that books must be printed from plates made from type set within the United States and printed and bound in this country. The Treasury Department has held in the case of an American edition of the "Key of Heaven" copyrighted under the law of 1891, by Benziger Brothers, of which sheets were sent abroad for binding, that the edition as bound abroad cannot be re-imported into the United States, although the sheets were manufactured here under the provisions of the law of 1891, previous to July 1, 1909. These books were accordingly denied importation and had to be returned to the country whence they were exported as bound. The opinion of Attorney-General Wickersham of November 17, 1909, on which the Treasury ruling was based, says: "This language [of sec. 31] clearly embraces every American copyright in a book, regardless of whether that copyright was obtained under the copyright laws embodied in the Revised Statutes, or the act of 1891, or the copyright act of 1909. If the statute were otherwise, it would have produced the anomalous condition that books copyrighted prior to March 3, 1891, would not be prohibited from importation by any manufacturing provision; that books copyrighted after March 3, 1891, and prior to July 1, 1909, the date upon which the act of March 4, 1909, became effective, would be prohibited unless printed from type set in the United States or from plates made from type set in the United States, while books copyrighted after July 1, 1909, would be prohibited if not printed from type set in the United States or from plates made from type set therein, and the printing and _binding_ both performed within the limits of the United States." {Sidenote: Importation of foreign texts} Where a work in a foreign language is copyrighted in the United States, it was held by the Secretary of the Treasury (Treas. dec. no. 22751) in 1901, on advice of the Attorney-General, under the act of 1891, in the case of Rostand's "L'Aiglon," that the original French edition must be denied importation under the prohibition feature of the manufacturing clause; but, as under the new code of 1909, "the original text of a work of foreign origin in a language other than English," is excepted from the manufacturing clause, it follows that such original text cannot be denied importation on copyright grounds, though importation might be restrained as a matter of equity by an assignee who had bought for the American market the right to publish here. In the case, however, of Liddel and Scott's Greek-English Lexicon, of which an American edition was copyrighted previous to the law of 1891, on a question raised by the American Book Co., the Secretary of the Treasury held in 1901 (Treas. dec. no. 22781) that the English edition could not be denied importation, as the law previous to 1891 did not contain the prohibition incident to the manufacturing clause. The Attorney-General in this case considered that while the clause against importation, being remedial, might affect prior copyright, yet as it particularly applied to books "so copyrighted" as not to be imported during the existence of "such copyright," it should be inferred that only books copyrighted under that act should be denied importation--the law in general being prospective in its effect. These two earlier opinions were taken into consideration in the opinion in 1909 by Attorney-General Wickersham, who held that the language of the new code did not warrant the same construction. {Sidenote: Printing within country} Under the law of 1891, the Secretary of the Treasury held in 1903 (Treas. dec. no. 24742) that books printed abroad from type set or plates made within the United States could not be prohibited importation under the manufacturing clause; but the clause has been so amended in the code of 1909 that printing in this country from type set within the United States or from plates made within the country from type thus set, is required as a condition of copyright, and copyright does not hold if any of these three conditions be neglected. It follows that in the case of books so copyrighted and manufactured, any other edition must be prohibited importation. {Sidenote: Innocent importation} An English decision holds that an importer is not innocent because he does not know that an importation includes copyright matter; and the wording of our law implies the same, though an American decision held that a partner or employer is not chargeable with statute penalties for acts done without his knowledge by a partner or agent. {Sidenote: Books not claiming copyright} An indirect and significant effect of the manufacturing proviso, in the nature of a "boomerang" to American industries, is to prevent the copyrighting of works which might otherwise be partly manufactured in America. Thus the American versions of the Book of Common Prayer and of Church Hymnals no longer seek American copyright, because the thin paper editions, as on "Oxford paper," are necessarily printed abroad and could not be imported if there were copyright on other editions which might be made in America. Baedeker's "United States," though dealing exclusively with and chiefly sold in this country, is not copyrighted, being protected rather by the cost of reproducing its German-made maps and text, and by its repute as a guide book and characteristic form, which might under the doctrine of "fair use" give its American publishers some common law protection against imitators. {Sidenote: Periodicals may be imported} {Sidenote: Composite books not admitted} The code of 1909 permits the importation of periodicals containing copyright matter authorized by the copyright proprietor, though not manufactured in the United States, but this permissive exception does not extend to composite books; and under the law of 1891 the Treasury Department held that in the case of a book of poems, some of which were copyrighted in the United States, the book could not be imported unless the parts containing copyrighted poems had been printed from type set within the United States. Under this ruling, applied to the present law, foreign-made copies of books containing American copyrighted poems or other articles, must be denied importation, because these copyrighted portions were not type-set, printed and bound in this country. It is possible, however, that under the rule "_de minimis non curat lex_," a court might not justify the prohibition of books incidentally containing in small proportion poems, extracts or other negligible items of American copyright. Thus if an English cyclopædia contained copyrighted contributions by American authors, such cyclopædia would be denied admission unless such contributions might be adjudged a negligible proportion of the work. {Sidenote: Rebinding abroad} The prohibition of importation under the manufacturing proviso of copyrighted books not bound in this country, has been construed by the Attorney-General, in an opinion of March 1, 1910 (given in Treas. dec. no. 30414), to refer to original bindings and not to rebindings. "Manifestly a book is produced within the meaning of section 31 when it is printed and bound; and the binding required to be done in the United States is the original binding, the one which enters into the original production of the book. When the manufacture of the book is thus completed it is entitled to all the protection offered by the copyright laws, and it may be exported and thereafter imported at the pleasure of the owner. There is, furthermore, nothing in the act to indicate any intention that a book may be deprived of this protection or right of importation when it has once been acquired. If it shall become necessary or proper that the book be rebound it is not thereby made a new book, but remains the same book, the one that was printed and originally bound in the United States as required by the statute." {Sidenote: Importation of non-copyright translation} A curious question as to the prohibition of importation arose in connection with a Swedish translation of the "purity" books of the "Self and sex" series, by Dr. Sylvanus Stall, of Philadelphia, author and publisher of this series. The original works in this series are by an American author written and printed in English and manufactured and copyrighted in America; and there are translations into twenty or more languages authorized by the author but not copyrighted in the United States. The copyright proprietor made an importation of the Swedish translation without question, but the second importation was stopped by the customs authorities at Philadelphia on the ground that the Swedish translation was a copy of the American copyrighted work and must therefore be denied admission because not manufactured in America. On appeal, the Treasury Department, June 23, 1910, overruled the local authorities and admitted the translation made in Sweden, and bearing no copyright notice, as a work "of foreign origin in a language other than English." {Sidenote: Books dutiable} Copyright protection and tariff "protection" are often spoken of as related with each other, chiefly because in this country the importation of books for libraries is, to a limited extent, free from tariff duties as well as from copyright restrictions. There is no real relation between them, but the sections of the American tariff of 1910 dealing with books and works of art may be cited for the convenience of importers: "(416) Books of all kinds, bound or unbound, including blank books, slate books and pamphlets, engravings, photographs, etchings, maps, charts, music in books or sheets, and printed matter, all the foregoing wholly or in chief value of paper, and not specially provided for in this section, twenty-five per centum ad valorem; views of any landscape, scene, building, place, or locality in the United States on cardboard or paper, not thinner than eight one-thousandths of one inch, by whatever process printed or produced, including those wholly or in part produced by either lithographic or photogelatin process (except show cards), occupying thirty-five square inches or less of surface per view, bound or unbound, or in any other form, fifteen cents per pound and twenty-five per centum ad valorem; thinner than eight one-thousandths of one inch, two dollars per thousand: Provided, That the rate or rates of duty provided in the tariff Act approved July twenty-fourth, eighteen hundred and ninety-seven, shall remain in force until October first, nineteen hundred and nine, on all views of any landscape, scene, building, place, or locality, provided for in this paragraph, which shall have, prior to July first, nineteen hundred and nine, been ordered or contracted to be delivered to bona fide purchasers in the United States, and the Secretary of the Treasury shall make proper regulations for the enforcement of this provision." {Sidenote: Books on free list} The following are included in the "free list" and are therefore free from any duties: "(516) Books, engravings, photographs, etchings, bound or unbound, maps and charts imported by authority or for the use of the United States or for the use of the Library of Congress. "(517) Books, maps, music, engravings, photographs, etchings, bound or unbound, and charts, which shall have been printed more than twenty years at the date of importation, and all hydrographic charts and publications issued for their subscribers or exchanges by scientific and literary associations or academies, or publications of individuals for gratuitous private circulation, and public documents issued by foreign governments. "(518) Books and pamphlets printed chiefly in languages other than English; also books and music, in raised print, used exclusively by the blind. "(519) Books, maps, music, photographs, etchings, lithographic prints, and charts, specially imported, not more than two copies in any one invoice, in good faith, for the use and by order of any society or institution incorporated or established solely for religious, philosophical, educational, scientific, or literary purposes, or for the encouragement of the fine arts, or the use and by order of any college, academy, school, or seminary of learning in the United States, or any state or public library, and not for sale, subject to such regulations as the Secretary of the Treasury shall prescribe. "(520) Books, libraries, usual and reasonable furniture, and similar household effects of persons or families from foreign countries, all the foregoing if actually used abroad by them not less than one year, and not intended for any other person or persons, nor for sale." {Sidenote: Library free importation} The provisions as to importation for libraries are made unnecessarily onerous by Treasury regulations intended to insure the identification of the actual copies so imported. In practice such copies are usually imported by library agents acting for the library and not only must these agents make oaths and present evidence of authorization from the library authorities, but the librarian must certify to the receipt of the individual copy, before it can be technically cleared from the custom house through which it is imported, and the importer relieved from further liability. Blank forms for these purposes are prescribed and provided by the Treasury Department. {Sidenote: Copyrights and the free list} The question whether copyrighted works could be imported because they were included under the free list of the tariff came before the Treasury Department in 1901. With respect to copyrighted music, the Attorney-General considered the two questions whether the copyright law prohibits the importation of copyright music and whether the free list in the tariff constitutes an exception to the copyright law. He held as to the latter that the tariff is to prescribe certain duties on importations; it is not designed to authorize importation. It simply provides when and under what circumstances certain articles are exempt from duty. Accordingly copyrighted musical compositions are not taken out of the effect of the copyright law. The Secretary of the Treasury ruled (Treas. dec. no. 23225), in accordance with this advice, that copyrighted music was prohibited importation,--but this refers to importation without consent of the copyright proprietor. {Sidenote: The duty on books} Although not of copyright bearing, the significance in respect to importations of books of the newly added phrase "wholly or in chief value of paper" in the tariff act of 1909, which otherwise continued the 25 per cent duty on books, may here be mentioned, as of importance to importers. It was included in the Payne tariff, apparently at the instance of the bookbinding interests, and was at first construed by the local customs authorities at New York to make books bound in leather subject to the 40 per cent duty on leather, and books bound in silk subject to the 50 per cent duty on silk, as the component parts of chief value. The Secretary of the Treasury has, however, overruled this view and admitted books thus bound under the 25 per cent duty on the ground that "the limitation placed upon the paragraph by the addition of the words not found in the previous law was intended to exclude from that rate, books bound in such fancy or costly bindings as to be imported not on account of their intrinsic literary merit or their value as books." The Board of General Appraisers has since, however, rendered a decision supporting the local appraisers. {Sidenote: British prohibition of importation} In Great Britain the copyright act of 1842 (sec. 17) provided that any printed books, copyright in the United Kingdom, imported "for sale or hire" as reprinted out of the British dominions otherwise than by "the proprietor of the copyright or some person authorized by him" should be forfeited, seized and destroyed by any customs or excise officer, and the Customs act of 1843, setting forth that "great abuse had prevailed with respect to introduction for private use," prohibited importation for use as well as for sale or hire. The international copyright act of 1844 (sec. 10) excepted importations from the country "in which such books were first published," but this act did not in terms repeal the provisions of the acts of 1842 and 1843, and in the leading case of Pitt Pitts _v._ George, in 1896, the Court of Appeal, two judges to one, decided that this exception was inconsistent with the previous acts and not good law. In this case an English music publisher who had purchased British copyright in Raff's "La Fileuse," sued to restrain the importation of the original German edition. The lower court, relying on the statute of 1844, refused relief, but the Court of Appeal granted an injunction, holding, through Judge Lindley, that the complete exclusion given to the British proprietor by the act of 1842 "is most in accordance with legal principles and good sense." It was further held that where the copyright had been divided, the words "the proprietor of the copyright" indicate the owner of the English rights, and that if he had to "submit to an unlimited importation of books lawfully printed in any part of Germany itself," the British copyright "would be absolutely worthless, and the beneficial object frustrated," and protection by covenant with the original proprietor is by no means adequate. {Sidenote: Foreign reprints} The colonial copyright act of 1847, usually known as the foreign reprints act, authorized suspension by the Crown of the prohibition of importation of foreign reprints, in any colony enacting "reasonable protection to British authors"--which protection, in the twenty colonies in which the act was availed of, usually took the shape of a stated duty to be paid as royalty to the British copyright proprietor. The customs consolidation act of 1876 continued the general prohibition, on condition of notice by the proprietor of the British copyright to the Commissioners of Customs. {Sidenote: Divided market} Thus the British copyright and customs law recognizes the subdivision of copyright territory for the exclusive control of a market, and excludes accordingly foreign reprints whether piratical copies or authorized foreign editions like the Tauchnitz series, and the original foreign edition as well. In theory, if not in practice, a Tauchnitz copy in the pocket of a traveler is subject to seizure, and written authority from the copyright proprietor is technically necessary for the importation of a single copy, apparently without exception in favor of the British Government or the libraries. {Sidenote: The new British code} The new British measure continues these provisions as embodied in the customs consolidation act of 1876 and the revenue act of 1889 and in the text of the new act. Copyright is infringed by any person who "imports for sale or hire any work ... which to his knowledge infringes copyright." Importation is prohibited of copies made out of the United Kingdom, which if made therein would infringe copyright and as to which the owner of the copyright gives written notice to the Commissioners of Customs in accordance with regulations by the Commissioners, which regulations may apply to all works or to different classes. The Isle of Man is specifically excepted from the United Kingdom in respect to this section. But the section is made applicable with the necessary modifications to any included British possession in respect to copies made out of that possession. The text of the new measure, retaining the phrase "for sale or hire" from the act of 1842 and reaffirming the customs act of 1876, which makes no such exception, continues an unfortunate ambiguity as to the importation of copies for private use, but precedent and court decisions favor the complete control of the market by the copyright proprietor through the complete exclusion of foreign copies. {Sidenote: Canadian practice} Canada had, in an act of 1850, availed itself of the foreign reprints act by imposing a duty "not exceeding 20 per cent" on foreign reprints of English works, and under this act the Dominion later became "flooded" with cheap American reprints, while the royalty to British authors, fixed at 12-1/2 percent, was so inadequately collected that only £1084 was paid in the ten years ending 1876. Canada accordingly passed its copyright act of 1875, providing for the reprinting of English copyright works in Canada under Canadian copyright and prohibiting importation of such works except in the original edition from the United Kingdom, and this act, although opposed as an invasion of the exclusive control of their works by British authors, was accepted by the British Parliament in the Canada copyright act of the same year, with the proviso that Canadian reprints should be prohibited importation into the United Kingdom except with assent of the copyright proprietor. It has since provided in the Fisher act of 1900 for the prohibition of importation of an original edition of an English work licensed for reprint in Canada, except two copies for libraries and one copy through demand on the Canadian licensee by an individual for use and not for sale--a provision considered _ultra vires_ by English authorities. {Sidenote: Australian provision} The Australian code of 1905 prohibits the importation of all pirated books or artistic works in which copyright is subsisting in Australia, "whether under this act or otherwise," and provides for the forfeiture of such works, on condition of written notice by the owner of the copyright to the Minister, directly or through the Commissioners of Customs of the United Kingdom, of the existence of the copyright and of its term. These provisions do not seem to make clear whether original editions of English works, of which an Australian edition is copyrighted, are held to be contraband. {Sidenote: Foreign practice} The legislation of France and Germany and other countries seems to provide against importation inferentially rather than specifically, Russia and Peru being exceptional in their specific prohibitions. But the treaties and conventions between the several countries are for the most part specific on this point, as are those of France providing that "when the author of a work of which the property rights are guaranteed by the present treaty shall have assigned his right of publication or of reproduction to a publisher in the territory of either of the high contracting parties with the reservation that the copies or editions of this work thus published or reproduced cannot be sold in the other country, these copies or editions shall be considered and treated, respectively, in that country as illicit reproductions"; and the treaties of Germany are especially specific with respect to musical compositions. The authorities as to the prohibition of importation in other countries are fully given in a statement from the Librarian of Congress made part of the printed record of the third hearing before the Patents Committees at Washington, March 26-28, 1908, which includes the text of the opinion in Pitt Pitts _v_. George as the leading English case. {Sidenote: International practice} The Berne convention of 1886 provided (art. XII) that "every infringing (_contrefait_) work may be seized on importation into those countries of the Union where the original work has right to legal protection," which was modified by the amendatory act of Paris, 1896, to read "may be seized by the competent authorities of the countries of the Union." The Berlin convention continues in article 16 the later phraseology, and adds, "in these countries seizure may also be made of reproductions coming from a country where the work is not protected or protection has ceased." All three conventions include also the proviso that the seizure shall take place conformably to the domestic legislation of each country. This phraseology apparently leaves the prohibition of editions authorized for other countries as an open question to be determined under the domestic legislation or practice of each country. The Pan American convention of Buenos Aires, 1910, provides (art. 14): "Every publication infringing a copyright may be confiscated in the signatory countries in which the original work had the right to be legally protected, without prejudice to the indemnities or penalties which the counterfeiters may have incurred according to the laws of the country in which the fraud may have been committed." XVII COPYRIGHT OFFICE: METHODS AND PRACTICE {Sidenote: History of Copyright Office} Under the early American copyright laws, copyright entries and deposits were made in the clerk's office of the respective District courts and there was no central copyright office. The deposit copies were not properly cared for, but what remained were collected into the vaults of the national Capitol when copyright administration was centralized in the Library of Congress. Under the law of 1870, the Librarian of Congress was made the copyright officer, and for many years Ainsworth R. Spofford, occupying that position, personally recorded entries and did much of the work. Before the close of his administration of the Library, and while it was still housed in the Capitol, the copyright business required the services of a staff including at the last twenty-four persons. By a special act of 1897, the office of Register of Copyrights was created, subject to the authority of the Librarian of Congress, who remains the ultimate administrative authority. The code of 1909 provided also for an assistant register of copyrights. The Copyright Office now occupies the southern end of the ground floor in the new Library building and the staff has increased to eighty-four persons. {Sidenote: Routine of registration} When a book is deposited for registration, accompanied by the claim for copyright, preferably on the application form gratuitously provided by the Copyright Office, its class designation, with its accession or sequence number in that class, is at once stamped upon the deposit copy or copies, with the date of receipt, and also upon a green record slip on which all details in the progress of the work through the Copyright Office are recorded with exact time of each act and the initials of the respective clerks. This record, when completed, shows, besides the class number and the title of the work, the date and hour of the receipt of deposit copies and of the receipt of application, affidavit and fee, with memorandum of the disposition of the fee if out of the ordinary course; the examination of the application and affidavit, the preparation of the white card for printer's copy, and the clearance of the work. Thus cleared, the book is ready for examination by the Library Commission, the delivery of one copy to the Catalogue Division of the Library of Congress, the making of the certificate and its record and the making of the index cards, all of which acts are performed usually on the day of receipt, or otherwise as early as practicable on the following day. The record slip also provides for noting and notifying claimants of defects as to the deposit copies or the application for copyright, and for noting also the reference to other departments, and the disposition of second deposit copies. {Sidenote: Treatment of deposits} The deposit copies, as entered on day of receipt and stamped with date, group and accession number, are placed on a table for inspection by what is known as the Library Commission of the Library of Congress, consisting of the Assistant Librarian, the Superintendent of the Reading Room and the Chief of the Catalogue Division, who decide which books are desired for the Library of Congress, and whether one or two copies thereof are required; one copy not so required is retained as part of the records of the Copyright Office. Accumulations of the past years and current accessions were until recently stored in the sub-basement of the Library of Congress building, but a new stack now furnishes abundant and well-lighted space for deposit copies and gradually all deposit articles will be removed to this stack. The new provision for the destruction of useless material happily prevents the continuing storage of such material to an indefinite future. {Sidenote: Destruction of useless material} The Librarian of Congress and the Register of Copyrights jointly are authorized "at suitable intervals" to determine what articles received during any period of years and remaining undisposed of, are useful for permanent preservation, and in their discretion to provide for the destruction of others, after a statement of the years of receipt of such articles and notice to permit any lawful claimant to claim and remove them has been printed in the catalogue of copyright entries from February to November, permitting their reclamation within the month of December. There is a special proviso that no manuscript of an unpublished work shall be destroyed during the term of copyright without specific notice to the copyright proprietor of record, permitting him to claim and remove it. {Sidenote: Register of Copyrights} The Register of Copyrights, originally appointed by the Librarian of Congress under the act of February 19, 1897, is made by the new code of 1909 a permanent administrative officer, appointed by and under the direction and supervision of the Librarian of Congress at a salary of $4000 per year and under bonds of $20,000. He is authorized under the law to make rules and regulations for the registration of claims to copyright, subject to the approval of the Librarian of Congress; is required to make an annual report to the Librarian of Congress to be printed in the annual report on the Library of Congress; to cover all fees into the Treasury and report as to the same to the Secretary of the Treasury and to the Librarian of Congress, and to provide and keep the necessary record books, indexes, etc. He is authorized to affix the seal of the Copyright Office provided for by law, and is happily relieved by the new code from the necessity of formal signature of certificates, etc., which under the old law wasted precious and difficult hours in small routine work, the affixing of the seal being the sufficient and sensible substitute for the personal signature. An assistant register of copyrights at a salary of $3000 was provided for in the new act, also to be appointed by the Librarian of Congress, with authority during the absence of the Register to attach the seal and perform other necessary functions. {Sidenote: Catalogues and indexes} The law directs that the Register of Copyrights "shall print at periodic intervals a catalogue of the titles of articles ... together with suitable indexes, and at stated intervals ... complete and indexed catalogues for each class of copyright entries, "which shall be admitted in any court as _prima facie_ evidence," shall be promptly distributed to collectors of customs and postmasters of all exchange offices and shall be furnished to others at a price not exceeding $5 per annum for the complete catalogue or $1 for the catalogues issued during the year for any one class. The practice of the Copyright Office is to make for each copyrighted book an index card, in conformity with the printed catalogue card of the Library of Congress, and to utilize the linotype slugs set for this purpose, with some modification, as the basis for the "Catalogue of copyright entries" for books. The catalogue for books proper, Part I, Group 1, is printed weekly with an annual index, which, together with Part I, Group 2, issued monthly with more condensed entries,--containing the titles for all other material registered under the legal designation "book," not found in Group 1,_ i. e._, local directories and other annuals, pamphlets, leaflets and literary contributions to periodicals, as also dramatic compositions, lectures and maps, including also the preliminary reports of court decisions,--may be subscribed for at a price of $1 per year. Part II, appearing monthly, covers periodicals, with an annual index, at fifty cents per year. Part III, appearing monthly, covers music, with an annual index, at $1 per year. Part IV, appearing monthly, covers works of art, reproductions of a work of art, drawings or plastic works of a scientific character, photographs and prints and pictorial illustrations, with an annual index, at fifty cents per year. The subscription price for the entire catalogue is $3 per year. Subscriptions should be sent direct to the Superintendent of Documents, Washington, D. C., with money orders or drafts in his name (stamps and uncertified checks not accepted), and should not be sent to the Librarian of Congress or to the Copyright Office. {Sidenote: Entry cards} The Library of Congress prints for all such books as are selected from the copyright deposits for use in the Library, on the decision of the Commission appointed by the Librarian, a catalogue card which forms part of the library card catalogue system, and which can be had by public libraries and by private purchasers at the price of two cents a card. This card is used for the catalogues of the Library of Congress and for the catalogues of depository libraries throughout the country, but is not furnished in exchange by the Smithsonian Institution to foreign institutions. The catalogue cards for "books" in Group 2, representing considerably more than twice as many registrations as Group I, as well as the index cards for all articles comprised in the remaining classes of copyright deposits, are prepared in the Copyright Office, and are not furnished to other libraries or to the public. {Sidenote: Text provisions} The provisions as to the Copyright Office, its administration, methods and practice, are set forth in the American code of 1909 in much detail, as follows: {Sidenote: Copyright records} "(Sec. 47.) That all records and other things relating to copyrights required by law to be preserved shall be kept and preserved in the copyright office, Library of Congress, District of Columbia, and shall be under the control of the register of copyrights, who shall, under the direction and supervision of the Librarian of Congress, perform all the duties relating to the registration of copyrights. {Sidenote: Register of copyrights and assistant register} "(Sec. 48.) That there shall be appointed by the Librarian of Congress a register of copyrights, at a salary of four thousand dollars per annum, and one assistant register of copyrights, at a salary of three thousand dollars per annum, who shall have authority during the absence of the register of copyrights to attach the copyright office seal to all papers issued from the said office and to sign such certificates and other papers as may be necessary. There shall also be appointed by the Librarian such subordinate assistants to the register as may from time to time be authorized by law. {Sidenote: Deposit and report of fees} "(Sec. 49.) That the register of copyrights shall make daily deposits in some bank in the District of Columbia, designated for this purpose by the Secretary of the Treasury as a national depository, of all moneys received to be applied as copyright fees, and shall make weekly deposits with the Secretary of the Treasury, in such manner as the latter shall direct, of all copyright fees actually applied under the provisions of this Act, and annual deposits of sums received which it has not been possible to apply as copyright fees or to return to the remitters, and shall also make monthly reports to the Secretary of the Treasury and to the Librarian of Congress of the applied copyright fees for each calendar month, together with a statement of all remittances received, trust funds on hand, moneys refunded, and unapplied balances. {Sidenote: Bond} "(Sec. 50.) That the register of copyrights shall give bond to the United States in the sum of twenty thousand dollars, in form to be approved by the Solicitor of the Treasury and with sureties satisfactory to the Secretary of the Treasury, for the faithful discharge of his duties. {Sidenote: Annual report} "(Sec. 51.) That the register of copyrights shall make an annual report to the Librarian of Congress, to be printed in the annual report on the Library of Congress, of all copyright business for the previous fiscal year, including the number and kind of works which have been deposited in the copyright office during the fiscal year, under the provisions of this Act. {Sidenote: Seal} "(Sec. 52.) That the seal provided under the Act of July eighth, eighteen hundred and seventy, and at present used in the copyright office, shall continue to be the seal thereof, and by it all papers issued from the copyright office requiring authentication shall be authenticated. {Sidenote: Rules} "(Sec. 53.) That, subject to the approval of the Librarian of Congress, the register of copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act. {Sidenote: Record books} "(Sec. 54.) That the register of copyrights shall provide and keep such record books in the copyright office as are required to carry out the provisions of this Act, and whenever deposit has been made in the copyright office of a copy of any work under the provisions of this Act he shall make entry thereof. {Sidenote: Certificate} {Sidenote: Receipt for deposits} "(Sec. 55.) That in the case of each entry the person recorded as the claimant of the copyright shall be entitled to a certificate of registration under seal of the copyright office, to contain his name and address, the title of the work upon which copyright is claimed, the date of the deposit of the copies of such work, and such marks as to class designation and entry number as shall fully identify the entry. In the case of a book the certificate shall also state the receipt of the affidavit as provided by section sixteen of this Act, and the date of the completion of the printing, or the date of the publication of the book, as stated in the said affidavit. The register of copyrights shall prepare a printed form for the said certificate, to be filled out in each case as above provided for, which certificate, sealed with the seal of the copyright office, shall, upon payment of the prescribed fee, be given to any person making application for the same, and the said certificate shall be admitted in any court as prima facie evidence of the facts stated therein. In addition to such certificate the register of copyrights shall furnish, upon request, without additional fee, a receipt for the copies of the work deposited to complete the registration. {Sidenote: Catalogue and index provision} "(Sec. 56.) That the register of copyrights shall fully index all copyright registrations and assignments and shall print at periodic intervals a catalogue of the titles of articles deposited and registered for copyright, together with suitable indexes, and at stated intervals shall print complete and indexed catalogues for each class of copyright entries, and may thereupon, if expedient, destroy the original manuscript catalogue cards containing the titles included in such printed volumes and representing the entries made during such intervals. The current catalogues of copyright entries and the index volumes herein provided for shall be admitted in any court as prima facie evidence of the facts stated therein as regards any copyright registration. {Sidenote: Distribution and subscriptions} "(Sec. 57.) That the said printed current catalogues as they are issued shall be promptly distributed by the copyright office to the collectors of customs of the United States and to the postmasters of all exchange offices of receipt of foreign mails, in accordance with revised lists of such collectors of customs and postmasters prepared by the Secretary of the Treasury and the Postmaster-General, and they shall also be furnished to all parties desiring them at a price to be determined by the register of copyrights, not exceeding five dollars per annum for the complete catalogue of copyright entries and not exceeding one dollar per annum for the catalogues issued during the year for any one class of subjects. The consolidated catalogues and indexes shall also be supplied to all persons ordering them at such prices as may be determined to be reasonable, and all subscriptions for the catalogues shall be received by the Superintendent of Public Documents, who shall forward the said publications; and the moneys thus received shall be paid into the Treasury of the United States and accounted for under such laws and Treasury regulations as shall be in force at the time. {Sidenote: Records open to inspection and copying} "(Sec. 58.) That the record books of the copyright office, together with the indexes to such record books, and all works deposited and retained in the copyright office, shall be open to public inspection; and copies may be taken of the copyright entries actually made in such record books, subject to such safeguards and regulations as shall be prescribed by the register of copyrights and approved by the Librarian of Congress. {Sidenote: Preservation of deposits} "(Sec. 59.) That of the articles deposited in the copyright office under the provisions of the copyright laws of the United States or of this Act, the Librarian of Congress shall determine what books and other articles shall be transferred to the permanent collections of the Library of Congress, including the law library, and what other books or articles shall be placed in the reserve collections of the Library of Congress for sale or exchange, or be transferred to other governmental libraries in the District of Columbia for use therein. {Sidenote: Disposal of deposits} "(Sec. 60.) That of any articles undisposed of as above provided, together with all titles and correspondence relating thereto, the Librarian of Congress and the register of copyrights jointly shall, at suitable intervals, determine what of these received during any period of years it is desirable or useful to preserve in the permanent files of the copyright office, and, after due notice as hereinafter provided, may within their discretion cause the remaining articles and other things to be destroyed: _Provided_, That there shall be printed in the Catalogue of Copyright Entries from February to November, inclusive, a statement of the years of receipt of such articles and a notice to permit any author, copyright proprietor, or other lawful claimant to claim and remove before the expiration of the month of December of that year anything found which relates to any of his productions deposited or registered for copyright within the period of years stated, not reserved or disposed of as provided for in this Act: _And provided further_, That no manuscript of an unpublished work shall be destroyed during its term of copyright without specific notice to the copyright proprietor of record, permitting him to claim and remove it. {Sidenote: Fees} {Sidenote: Only one registration required} "(Sec. 61.) That the register of copyrights shall receive, and the persons to whom the services designated are rendered shall pay, the following fees: For the registration of any work subject to copyright, deposited under the provisions of this Act, one dollar, which sum is to include a certificate of registration under seal: _Provided_, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents. For recording and certifying any instrument of writing for the assignment of copyright, or any such license specified in section one, subsection (e), or for any copy of such assignment or license, duly certified, if not over three hundred words in length, one dollar; if more than three hundred and less than one thousand words in length, two dollars; if more than one thousand words in length, one dollar additional for each one thousand words or fraction thereof over three hundred words. For recording the notice of user or acquiescence specified in section one, subsection (e), twenty-five cents for each notice if not over fifty words, and an additional twenty-five cents for each additional one hundred words. For comparing any copy of an assignment with the record of such document in the copyright office and certifying the same under seal, one dollar. For recording the extension or renewal of copyright provided for in sections twenty-three and twenty-four of this Act, fifty cents. For recording the transfer of the proprietorship of copyrighted articles, ten cents for each title of a book or other article, in addition to the fee prescribed for recording the instrument of assignment. For any requested search of copyright office records, indexes, or deposits, fifty cents for each full hour of time consumed in making such search: _Provided_, That only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time." {Sidenote: Present organization} The organization of the Copyright Office under the present administration of the Librarian of Congress, Herbert Putnam, appointed by President McKinley in 1898, and the Register of Copyrights, Thorvald Solberg, the first and only occupant of that post, appointed by the Librarian of Congress in 1897, presents a standard of efficiency, celerity and economy which is a model for governmental departments, or indeed for any administrative business. The enormous amount of detail is systematized and controlled by a remarkable method of record, and blank forms provide in the utmost variety of detail for every feature of the work of correspondence, especially in calling the attention of applicants to defects in their applications, which are many and various. {Sidenote: Efficiency of methods} As the result of this organization, the complex law of March 4, 1909, was put in operation July 1, 1909, without a hitch; and inquiries made to the Copyright Office are answered, usually on the same day, with remarkable dispatch and accuracy. For instance, the many letters directed mistakenly to the Register of Copyrights, instead of to the Commissioner of Patents, the frequent applications for the protection of prints designed for articles of manufacture, and the multitudinous applications on articles not subject to copyright, or for projected works or for book manuscripts previous to publication, are each covered by a form letter with an index card of a distinctive color for each, so that a full record is kept in the Copyright Office of such errors without unduly complicating the copyright records proper. The Copyright Office now handles approximately half a million items of entries, deposits and correspondence during the year, and covers into the Treasury more than $100,000, returning to the government a substantial sum above the direct cost of administration. {Sidenote: Registration 1909-1910} The Copyright Office prints annually a summary of its work, from which it appears that in the year ending June 30, 1910, the first year of operation of the new copyright code, it had issued copyright certificates to the number of 96,634, representing an equal number of registrations at $1 each. In addition thereto 11,433 registrations were made for photographs at fifty cents each, for which no certificates were issued. This annual summary for the fiscal year ending June 30 is printed as a part of the annual report, for presentation to Congress each December; and a summary for the calendar year is printed in separate form at the beginning of the new year. {Sidenote: Certificates for court use} In addition to the regular certificates in card form, the Copyright Office also issues certificates in quarto shape when desired, which are especially utilized in court proceedings as parts of the record. {Sidenote: Searches} The Copyright Office makes searches for information, under the provisions of the new law, at the rate of fifty cents for each full hour of the person employed in such search. The new Rules provide for such searches as follows: "(49.) Upon application to the Register of Copyrights, search of the records, indexes, or deposits will be made for such information as they may contain relative to copyright claims. Persons desiring searches to be made should state clearly the nature of the work, its title, the name of the claimant of copyright and probable date of entry; in the case of an assignment, the name of the assignor or assignee or both, and the name of the copyright claimant and the title of the music referred to in case of notice of user." {Sidenote: Patent Office registry for labels} Question having been raised by the Commissioner of Patents whether the act of 1909 did not charge the Copyright Office with the registration as "prints" of labels, etc., the Attorney-General, in an opinion of December 22, 1909, held that the copyright act of 1909 did not relieve the Patent Office of this duty, and it is still required to register all prints which have heretofore been registered therein under the act of June 18, 1874, and in the same manner as they have heretofore been registered. Many of the features of the Copyright Office, such as the forms for applications, certificates, etc., have been treated in detail in the chapter on formalities, which should be read in connection with this chapter. {Sidenote: Foreign practice} In Great Britain there is no official copyright office, but registration has been made at Stationers' Hall in charge of the Stationers' Company, a _quasi_ public institution, while deposit is made primarily in the national library at the British Museum. The records at Stationers' Hall and the printed or other catalogues of the British Museum are public. But there is no printed copyright list except of prohibitions of importations issued by the Commissioners of Customs. Under the new British measure there is no registration at Stationers' Hall or elsewhere. In France there is no copyright office proper and the deposit copies required from the printer are deposited with the Ministry of the Interior at Paris or at the Prefecture or town clerk's office in the provinces. In other European countries, the registration, when required, is made for the most part in one of the government departments, as Ministry of Interior, Department of Agriculture, etc. In Italy, as in several Spanish-American countries, the registry is provincial instead of central, though in some of these countries provision is made for report from time to time to a central government office. In few countries is there a copyright office proper, distinctively organized and named, except in certain English colonies, as Australia and Canada, which have now a copyright office and a Registrar of Copyrights. XVIII INTERNATIONAL COPYRIGHT CONVENTIONS AND ARRANGEMENTS {Sidenote: International protection of property} With the growth of civilization, the practice of protecting in all countries the property of the citizen of any other country has also grown, until it is now a generally recognized principle. This principle, applied to literary property, has resulted in international copyright among most civilized nations. {Sidenote: Early copyright protection} The first provision for international copyright, aside from the ancient practice in France of giving protection to authors of other countries who published their works therein, was made by Prussia in 1837, in a law which provided that any country might secure copyright for its authors in Prussia to the extent of reciprocal privileges granted by that country. {Sidenote: Early English protection} England followed, in 1838, with an "act for securing to authors, in certain cases, the benefit of international copyright," which empowered the Queen, by an Order in Council, to direct that the author of a book first published in a foreign country should have copyright in the United Kingdom, on certain conditions, providing that country conferred similar privileges on English authors. The act of 1844 extended this privilege to prints, sculpture and other works of art, and provided for international playright. It expressly denied the privilege, however, to translations of foreign works, and it was not until 1852 that provision was fully made for translations of books and of dramatic compositions, the latter with the proviso that "fair imitations or adaptations" of foreign plays or music might be made. In this early period Great Britain negotiated treaties with the German states (1846-55), France (1851), Belgium (1854), Spain (1857), and Sardinia (1860), afterward extended throughout Italy. The treaties generally included a proviso that duties on books, etc., imported into the treaty country, should not be above a stated sum, and in the case of France there was to be no duty either way. The domestic copyright acts had also provided, on the condition of first publication in the United Kingdom, a practical measure of international copyright. The international copyright act of 1875 repealed the exception as to plays, and authorized the protection of foreign plays against imitation and adaptation. Under these international copyright acts, registration at Stationers' Hall, at a fee of one shilling only, was made a condition of the copyright of foreign works, and the deposit of a copy of the first edition and of every subsequent edition containing additions or alterations at Stationers' Hall, for transmission to the British Museum, was required, besides other local formalities, particularly in connection with the limited protection of translations, which was for five years only. {Sidenote: Adhesion to Berne convention} Great Britain became a signatory power of the Berne convention of 1886, and the international copyright act of 1886, amending and in part repealing the previous international copyright acts, was passed to enable Her Majesty through Orders in Council to become a party to this convention, which was ratified in 1887. This was made effective with respect to the eight other countries which were parties to the original Berne convention by the Order in Council of November 28, 1887, taking effect December 6, 1887. The provisions of 1886 made registration and deposit unnecessary for foreign works which had complied with the formalities requisite in the country of origin, but it was nevertheless held in Fishburn _v._ Hollingshead, in 1891, by Justice Stirling, that a foreign work must comply with the provisions of the copyright acts applicable, as to registration and delivery, to works first produced in the United Kingdom, since a foreign work was entitled only to the protection afforded to natives. In Hanfstaengl _v._ Holloway, in 1893, Justice Charles took the opposite view, and he was supported by the Court of Appeal in Hanfstaengl _v._ American Tobacco Company, in 1894, which decided finally that the acts of 1842 and 1844 were repealed as to foreign works and that registration and deposit of a foreign work were unnecessary. The decision of the Court of Appeal in 1908, in Sarpy _v._ Holland, that notice of reservation may be in foreign languages, confirmed the provisions that no formalities beyond those in the country of origin were requisite. {Sidenote: Effect of Berne convention} With the development of the International Copyright Union, through the Berne convention of 1886, copyright relations between the leading countries became more largely and truly international, and most of the existing treaties of the unionist countries were superseded by the international convention proper. In accordance, however, with the terms of the convention, treaties broader than the provisions of the convention might still remain in force or be later negotiated between one country and another, and such conventions, on the "most favored nation" basis or otherwise, have in fact been negotiated, especially by Germany, within the present century. The arrangement for protection of foreign works in unionist and other countries, under special treaties, will be found in succeeding chapters on copyright in foreign countries, where treaties broader than the international convention or made since 1900 are also scheduled. The main features of international copyright arrangements are tabulated in condensed form in the conspectus of copyright by countries given in the preliminary pages. {Sidenote: International literary congresses} At the time of the Universal Exposition in Paris in 1878, the French _Société des Gens de Lettres_ issued invitations for an International Literary Congress, which was held in Paris, under the presidency of Victor Hugo, commencing June 4, 1878. From this came the _Association Littéraire et Artistique Internationale_, which held subsequent congresses at London in 1879, at Lisbon in 1880, at Vienna in 1881, at Rome in 1882, at Amsterdam in 1883, at Brussels in 1884, and at Antwerp in 1885, at which the extension of international copyright was discussed and advocated. {Sidenote: Fundamental proposition} The Congress at Antwerp, in 1885, ratified the following proposition: "The author's right in his work constitutes an inherent right of property. The law does not create, but merely regulates it." {Sidenote: Preliminary official conference, 1883} Partly at the initiative of this association and at the invitation of the Swiss government, a preliminary conference of official representatives of the several nations was held at Berne in September, 1883, at which the following draft, submitted by the International Literary and Artistic Association, was substantially adopted as the basis for a general convention on the part of civilized nations: "1. The authors of literary or artistic works published, represented, or executed in one of the contracting States, shall enjoy, upon the sole condition of accomplishing the formalities required by the laws of that State, the same rights for the protection of their works in the other States of the Union, whatever the nationality of the authors may be, as are enjoyed by natives of the States. {Sidenote: Propositions of 1883} "2. The term literary or artistic works comprises books, pamphlets, and all other writings; dramatic and dramatico-musical works; musical compositions, with or without words, and arrangements of music; drawings, paintings, sculptures, engravings, lithographs, maps, plans, scientific sketches, and generally all other literary, artistic, and scientific works whatsoever, which may be published by any system of impression or reproduction whatsoever. "3. The rights of authors extend to manuscript or unpublished works. "4. The legal representatives and assignees of authors shall enjoy in all respects the same rights as are awarded by this convention to authors themselves. "5. The subjects of one of the contracting States shall enjoy in all the other States of the Union during the subsistence of their rights in their original works the exclusive right of translation. This right comprises the right of publication, representation, or execution. "6. Authorized translations are protected in the same manner as original works. When the translation is of a work which has become public property, the translator cannot prevent the work from being translated by others. "7. In the case of the infringement of the above provisions, the courts having jurisdiction will apply the laws enacted by their respective legislatures, just as if the infringement had been committed to the prejudice of a native. Adaptation shall be considered piracy, and treated in the same manner. "8. This convention applies to all works that have not yet become public property in the country in which they were first published at the time of coming into force of the convention. "9. The States of the Union reserve to themselves the right of entering into separate agreements among themselves for the protection of literary or artistic works, provided that such agreements are not contrary to any of the provisions of the present convention. "10. A Central International Office shall be established, at which shall be deposited by the Governments of the States of the Union the laws, decrees, and regulations affecting the rights of authors which have already been or shall hereafter be promulgated in any of the said Governments. This office shall collect the laws, etc., and publish a periodical print in the French language, in which shall be contained all the documents and information necessary to be made known to the parties interested." {Sidenote: First official conference, 1884} This draft, as adopted, was submitted by the Swiss government to the first formal international conference for the protection of the rights of authors, held at Berne from September 8 to 19, 1884. At this conference representatives from thirteen countries were present--Austria, Belgium, Costa Rica, France, Germany, Great Britain, Haiti, Holland, Italy, Salvador, Sweden and Norway, and Switzerland; and the result of their deliberations was a new "draft convention for the creation of a general union for the protection of the rights of authors," similar to the Universal Postal Union, in the following form: "1. Authors placing themselves within the jurisdiction of the contracting countries will be afforded protection for their works, whether in print or manuscript, and will have all the advantages of the laws of the different nations embraced in the Union. "2. These privileges will be dependent upon the carrying out of the conditions and formalities prescribed by the legislation of the author's native country, or of the country in which he chooses to first publish his work, such country being, of course, one of those included in the convention. "3. These stipulations apply alike to editors and authors of literary works, as well as to works of art published or created in any country of the Union. "4. Authors within the jurisdiction of the Union will enjoy in all the countries the exclusive rights of translation of their works during a period of ten years after publication in any one country of the Union of an authorized translation. "5. It is proposed that it shall be made legal to publish extracts from works which have appeared in any country of the Union, provided that such publications are adapted for teaching or have a scientific character. The reciprocal publication of books composed of fragments of various authors will also be permitted. It will be an indispensable condition, however, that the source of such extracts shall at all times be acknowledged. "6. On the other hand, it will be unlawful to publish, without special permission of the holder of the copyright, any piece of music, in any collection of music used in musical academies. "7. The rights of protection accorded to musical works will prohibit arrangements of music containing fragments from other composers, unless the consent of such composer be first obtained." {Sidenote: Second official conference, 1885} A second international conference was held at Berne from September 7 to 18, 1885, for the further consideration of the project. This was participated in by representatives from sixteen countries,--Argentina, Belgium, Costa Rica, France, Germany, Great Britain, Haiti, Honduras, Holland, Italy, Paraguay, Sweden and Norway, Spain, Switzerland, and Tunis. The United States was also represented at that conference by a "listening delegate," Boyd Winchester, then the United States minister at Berne. {Sidenote: Third official conference, 1886} The negotiations at Berne culminated at the third formal conference, of September 6 to 9, 1886, by agreement on a convention constituting an international copyright union, the _Union Internationale pour la Protection des OEuvres Littéraires et Artistiques_, which was signed on September 9, by the plenipotentiaries of ten countries, Great Britain, Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and Liberia. At this conference the United States was represented only as in 1885. {Sidenote: Berne convention, 1886:} The convention included twenty-one articles besides an additional article and final protocol, article I being as follows: "The contracting States are constituted into an Union for the protection of the rights of authors over their literary and artistic works." {Sidenote: Authors and terms} It was provided (art. II) that authors of any one of the countries shall enjoy in the other countries the same rights as natives, on complying with the formalities prescribed in the country of origin, _i. e._, of first publication, or in case of simultaneous publication, in the country having the shortest term of protection, for a period not exceeding the term of protection granted in the country of origin. This protection was extended (art. III) to the publishers within the Union of works whose authors belong to a country outside the Union. {Sidenote: "Literary and artistic works" defined} The expression "literary and artistic works" was defined (art. IV) by specification, including dramatic and musical works, but not mentioning photographs or actual works of architecture. Translations were protected (art. V) for ten years, which period should run for works published in incomplete parts (_livraisons_) from the publication of the last part, or in the case of volumes or serial collections (_cahiers_), from that of each volume, and in all cases from the thirty-first of December of the calendar year of publication. Authorized translations were protected (art. VI) as original works, but translators of works in the public domain could not oppose other translations. Reproduction of newspaper or periodical articles was permitted (art. VII) unless expressly forbidden, but this prohibition could not apply to political discussions, news matter or "current topics" (_faits divers_). Liberty of extract from literary or artistic works otherwise was left (art. VIII) to domestic legislation or specific treaties. {Sidenote: Performing rights} Protection was specifically extended (art. IX) to the representation of dramatic or dramatico-musical works or translations thereof, and, on condition of express reservation, to musical works; and adaptations, arrangements, and other unauthorized indirect appropriations were specially included (art. X) among illicit reproductions subject to determination by the courts of the respective countries. {Sidenote: Other provisions} The author indicated on a work, or the publisher of an anonymous or pseudonymous work, was given (art. XI) authority to institute proceedings, but the tribunal might require certificate that the formalities in the country of origin had been accomplished. Pirated (_contrefait_) works might be seized (art. XII) on importation, according to domestic law. The convention was not to derogate (art. XIII) from the right of each country to domestic control by legislation or police. Existing works, not fallen into the public domain in the country of origin (art. XIV), were protected. The several countries reserved (art. XV) the right to make separate and particular treaty arrangements. An international office was established (art. XVI) under the name of "Office of the International Union for the Protection of Literary and Artistic Works," under the authority of the Swiss Confederation, the expenses to be borne by the signatory countries. Revision at future conferences was provided for (art. XVII) with stipulation that alterations should not be binding except by unanimous consent. Accession of other countries was permitted (art. XVIII) on notice to the Swiss Confederation, and similar provision was made (art. XIX) for the accession of colonies. Ratification within one year (art. XX) and operation within three months thereafter (art. XXI) and withdrawal by one year's notice of denunciation were provided for. The "additional article" provided that the convention should not affect existing conventions between the states, conferring more extended powers or containing other stipulations not contrary to the convention. {Sidenote: Final protocol} On the exchange of ratifications September 5, 1887, a final protocol was agreed upon, extending article IV to cover photographs in those countries whose domestic legislation or treaty arrangements permitted such protection; extending article IX to choregraphic works in countries in which they were covered by domestic legislation; explicitly excepting mechanical music reproductions from protection; and specifically referring to domestic or treaty arrangements, the protection afforded by article XIV to existing works not fallen into the public domain. The final protocol also provided for the organization of the international office under regulation by the Swiss Confederation, for French as the official language, for the allotment of expenses among the countries, and for other administrative details. {Sidenote: Ratification in 1887} The Berne convention, as signed in that city September 9, 1886, by the representatives of ten nations, Great Britain, Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and Liberia, was ratified in the same city September 5, 1887, by exchange of ratifications on the part of all these powers except Liberia, and became effective December 5, 1887. The French acceptance included Algiers and the other French colonies, the Spanish acceptance all Spanish colonies, and the British acceptance, India, Canada and Newfoundland, the South African and the Australian colonies. To these powers were later added Luxemburg (1888), Monaco (1889), Montenegro (1893), which however withdrew in 1900, Norway (1896), Japan (1899), Denmark (1903), Sweden (1904), and Great Britain's new colonies, the Transvaal and Orange Free State (1903), leaving three nations of first rank outside the Union, _i. e._, Austria-Hungary, Russia, and the United States, aside from the South American countries later associated in the Pan American Union. {Sidenote: Paris conference, 1896} The revision of the Berne convention provided for in art. XVII, which was to be made according to the final protocol at a conference at Paris to be called by the French government within from four to six years, was not actually undertaken until 1896. When the signatory powers met in conference at Paris, April 15 to May 4, 1896, they adopted an "additional act," of four articles, which besides making verbal amendments for clarification, substantially modified articles II, III, V, VII, XII, XX, of the Berne convention and the first and fourth numbers of the final protocol; and issued also an "interpretative declaration" as to both the Berne convention and the final protocol, the additional act and the interpretative declaration being sometimes cited together as "the Paris acts." {Sidenote: Paris Additional Act} The Additional Act of Paris (art. I and II) included "posthumous works" amongst protected works, replaced the privileges given to publishers by a provision extending protection to authors not subjects of unionist countries for works first published in one of those countries; extended the protection of translations throughout the term of the original work, but with the proviso that the right for any language should expire after ten years unless the author had provided for a translation into that language; specifically included serial novels published in periodicals, and required indication of the source of articles reproduced from periodicals. The right to seize piratical works was given to the "competent authorities" of each country without specific reference to importation. Withdrawal by denunciation was made applicable only to the country withdrawing, leaving the convention binding upon all others. It further provided (art. III) that the several countries of the Union might accede to these additional acts separately, as might other countries, and for ratification within a year and enforcement within three months thereafter. {Sidenote: Paris Interpretative Declaration} The Declaration, simultaneously adopted, interpreting the convention of Berne and the Paris additional act, declared (1) that protection depends solely on accomplishment in the country of origin of the conditions and formalities prescribed therein; (2) that "published works" (_oeuvres publiées_) means works actually issued to the public (_oeuvres éditées_) in one of the Union countries--"consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of works of art, do not constitute publication"; and (3) that "the transformation of a novel into a play, or of a play into a novel" comes under the protection provided. {Sidenote: Ratification in 1897} The Paris acts, as adopted May 4, 1896, were ratified September 9, 1897, the declaration becoming effective immediately and the additional act three months later. Both the additional act and the interpretative declaration were ratified by Belgium, France, Germany, Haiti, Italy, Luxemburg, Monaco, Montenegro, Spain, Switzerland and Tunis. Great Britain ratified only the additional act and not the interpretative declaration, while Norway, which had become a unionist country April 13, 1896, ratified only the interpretative declaration and not the additional act. Thus from December 9, 1897, the Berne convention and the Paris acts together constituted, with the exceptions noted, the fundamental law of the International Copyright Union. {Sidenote: Berlin conference, 1908} A second conference for revision was called in 1908 by the German government, and met at Berlin October 14 to November 14, resulting in the signature on November 13, 1908, of a revised convention continuing or reconstituting the International Copyright Union and replacing by substitution the Berne convention and Paris acts in those states accepting it by ratification. To this conference the German government invited not only the signatory powers of the Union, then fifteen,--Belgium, Denmark (which had acceded to the Union in 1903), France, Germany, Great Britain, Haiti, Italy, Japan (1899), Luxemburg, Monaco, Norway, Spain, Sweden (1904), Switzerland, and Tunis; but also non-unionist countries, of which representatives were sent from twenty countries,--Greece, Holland, Portugal, Roumania and Russia, China, Persia and Siam, Liberia, the United States of America, Mexico, Guatemala and Nicaragua, Argentina, Chile, Colombia, Ecuador, Peru, Uruguay and Venezuela. The working committees were made up exclusively from representatives of the signatory powers, only these countries participating in the votes; active participation otherwise was confined to representatives of countries expecting to become signatory powers, Holland and Russia, while the other participants acted as observing representatives or supplied information on request. {Sidenote: United States' position} The United States delegate, Thorvald Solberg, Register of Copyrights, was present only to make observations and report, with no power to vote or to take part in the discussions, as stated in the remarks for which, on October 15, he was called upon, as follows: "In 1885 and 1886, at the conferences convened to draft the convention to create the International Union for the Protection of Literary and Artistic Property, the United States was represented. At that time, however, it was not deemed possible to send a plenipotentiary delegate, nor could such a representative be sent to attend the first conference of revision which met at Paris in 1896. "When the present conference was arranged for--early in the year--the German ambassador at Washington wrote to the Secretary of State of the United States a letter explaining the purpose and scope of this congress, inviting the Government of the United States to send delegates. The ambassador's letter explained that, in addition to delegates representing governments in the union, there would be present representatives from a considerable number of non-union nations. It was further stated that the attendance of such delegates from non-union countries would be greeted with special pleasure. This because of the conviction that whatever might be the final position taken by the non-union countries, or their laws, in relation to copyright, participation in the proceedings of this conference by such delegates from non-union countries would at all events contribute to arouse and increase interest in the Berne Union and its beneficial work. "The German ambassador's letter further explained that the delegates from non-union countries attending the conference would have full freedom of action; that they might confine themselves to following the discussions without taking any stand with regard to them, and that it would be left to the discretion of the non-union governments as to whether they would empower their delegates to join the Berne Union. "The Government of the United States again finds it impracticable to send a delegate authorized to commit the United States to actual adhesion at this time to the Berne Convention. Nevertheless, it has been felt that the representation of the United States, even within the limitations indicated, might be beneficial: first, to indicate the sympathy of our Government with the general purposes of the International Copyright Union; second, to secure such information regarding the proceedings of the conference as might prove valuable; and third, to place (by means of such representation) at the disposal of the conference authoritative knowledge as to the facts of copyright legislation and procedure within the United States--information which it is hoped may be of use to the members of the conference in their deliberations." {Sidenote: Welcome of non-unionist countries} In response to the participation of non-unionist countries, Prof. L. Renault of the French delegation, Chairman at the working sessions of the conference, spoke of the wisely liberal practice of including non-unionist countries in the invitation, recognized "the difficulty which these countries find in passing through the halting places," which the Union had itself gone through, and referred with especial gratification to the representation of Holland, Russia and the United States. {Sidenote: Death of Sir Henry Bergne} The closing days of the conference were darkened by the fatal illness of Sir Henry Bergne, head of the British delegation, who expired on November 15, the day after the adjournment of the conference, at the successful culmination of work toward which he had given many years of active and effective life. {Sidenote: Berlin convention, 1908:} {Sidenote: "Literary and artistic works" defined} The Berlin convention included thirty articles, covering the same ground as those of the Berne convention and the Paris acts, but somewhat differently arranged, so that comparison is not quite direct. Article 1 reconstitutes the International Copyright Union. The expression "literary and artistic works" is defined (arts. 2 and 3, covering previous arts. IV-VI) as including "all productions in the literary, scientific or artistic domain, whatever the mode or form of reproduction, such as: books, pamphlets and other writings; dramatic or dramatico-musical works; choregraphic works and pantomimes, the stage directions ('_mise en scene_') of which are fixed in writing or otherwise; musical compositions with or without words; drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences. Translations, adaptations, arrangements of music and other reproductions transformed from a literary or artistic work, as well as compilations from different works, are protected as original works without prejudice to the rights of the author of the original work." The contracting countries are pledged to secure protection fully for these categories and for photographic works and "works obtained by any process analogous to photography" and to protect "works of art applied to industry" so far as domestic legislation allows. {Sidenote: Authors' rights} {Sidenote: "Country of origin"} The convention assures (art. 4, broadening art. II) to authors within the jurisdiction of a unionist country for their works, whether unpublished or published for the first time in one of the countries of the Union, such rights in each other unionist country as domestic laws accord to natives, as well as the rights accorded by the convention, "not subject to any formality" and "independent of the existence of protection in the country of origin," and regulated exclusively according to the legislation of the country where the protection is claimed. The "country of origin" is defined as "for unpublished works, the country to which the author belongs; for published works, the country of first publication" and for works published simultaneously in several countries within the Union (as also in countries without the Union), the unionist country granting the shortest term of protection. Published works (_oeuvres publiées_) are again defined as works that have been issued (_oeuvres éditées_). "The representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of a work of art and the construction of a work of architecture do not constitute publication." {Sidenote: Broadened international protection} Authors of a unionist country first publishing in another country of the Union enjoy (art. 5) in the latter country the same rights as national authors; and authors of a non-unionist country first publishing a work in any unionist country enjoy (art. 6) in that country the same rights as national authors and in the other Union countries the rights accorded by the convention. This article greatly broadens the scope of the convention, and by recognizing without formalities the rights of authors of non-unionist countries, makes it of a world-wide inclusion for works unpublished or first or simultaneously published within a unionist country, to the full extent of domestic protection in each unionist country, whether the country of origin does or does not grant protection,--thus giving to citizens of the United States full protection throughout unionist countries on the sole condition of first or simultaneous publication within one of them. {Sidenote: Term} The convention takes the important step (art. 7) of providing for a uniform term of "the life of the author and fifty years after his death" in place of the respective national terms, with the proviso that if this term should not be adopted uniformly by all the unionist countries, duration shall be regulated by the law of the country where protection is claimed, but cannot exceed the term in the country of origin. For photographic and analogous works, posthumous, anonymous or pseudonymous works, the term of protection is regulated by the law of the country where protection is claimed, but may not exceed the term in the country of origin. The exclusive right of translation is assured (art. 8) for the entire term. Serial stories and other works published in newspapers or periodicals (art. 9) may not be reproduced, but other newspaper articles may be reproduced by another newspaper if reproduction has not been expressly forbidden, on acknowledgment of the source, but protection is not extended to news of the day or press information on current topics. The right of extract is to be governed (art. 10) by domestic legislation. {Sidenote: Performing rights, etc.} The public representation or performance of dramatic, dramatico-musical or musical works, whether published or not (art. 11), and adaptation, dramatization or novelization, etc. (art. 12), are fully included; and this protection applies (art. 13) to the mechanical reproduction of music, with the proviso that this application shall not be retroactive and shall be regulated in each country by domestic legislation. Infringing mechanical musical appliances may be seized on importation even though lawful in the country from which they come. Cinematograph and analogous productions of literary, scientific or artistic works are included (art. 14) as subject to copyright protection. {Sidenote: Other provisions} The provisions as to the identification of author or publisher (art. 15) of the work, seizure of infringing works (art. 16) and domestic regulation and supervision (art. 17) are continued. The convention is applied (art. 18) to existing works, provided they have not fallen into the public domain in the country of origin or by expiration of the term in the country where protection is claimed. {Sidenote: National powers reserved} It is specially provided (art. 19) that the convention does not prevent "more favorable provisions" through domestic legislation "in favor of foreigners in general"; and the right of any country to make special treaties conferring more extended rights (art. 20) is continued. {Sidenote: Organization provisions} The provisions as to the International Bureau made in the Berne protocol are continued (arts. 21-23), and also those as to revision (art. 24) through conferences, to take place successively in the countries of the Union. Accession of other countries (art. 25) and colonies (art. 26) is to be made as heretofore, by notification through Switzerland, and it is provided that acceding countries may adhere to the present convention or those of 1886 or 1896. The present convention is made (art. 27) to replace the Berne convention of 1886 and the Paris acts of 1896, but it is specifically provided that the states signatory to the present convention may declare their intention to remain bound by specific provisions of previous conventions. The convention was to be ratified (art. 28) not later than July 1, 1910, and was to take effect (art. 29) three months thereafter, subject to withdrawal of any country by denunciation on one year's notice, in which case the convention would still remain in force for the other countries. It is specially provided (art. 30) that the states which introduce into their legislation the new term of protection shall notify the Swiss government accordingly, and any renouncements of reservations shall be similarly notified. {Sidenote: Ratification in 1910} The Berlin convention was signed in that city November 13, 1908, by the representatives of Germany, Belgium, Denmark, Spain, France, Great Britain, Italy, Japan, Liberia, Luxemburg, Monaco, Norway, Sweden, Switzerland, Tunis, the signatories being in alphabetical order according to the French names of the countries. Ratifications were exchanged in Berlin June 9, 1910, and the convention became operative September 9, 1910. The convention was ratified without reservation by Germany, Belgium, Spain, Haiti, Liberia, Luxemburg, Monaco and Switzerland, and with reservations by France and Tunis (as to works of applied art); Japan (as to exclusive right of translation and the public performance of musical works); Norway (as to works of architecture, periodical articles and retrospective action). Denmark and Italy have not ratified the Berlin convention and therefore remain under the Berne convention and Paris additional act and declaration. Great Britain will be enabled under the new copyright act to accede to the Berlin convention, but has hitherto remained under the Berne convention and the Paris additional act, and Sweden, not having ratified, remains under the Berne convention and the Paris declaration. Portugal acceded in 1911. {Sidenote: Official organ} The official documents of the International Copyright Union, and especially accessions thereto, as well as current copyright information from all parts of the world, are given in the _Droit d'Auteur_, published monthly at Berne, under the able editorship of Prof. Ernest Röthlisberger, from the Bureau of the Union, as its official organ. {Sidenote: Montevideo congress, 1889} Three years after the Berne convention, a congress of seven of the South American republics was held at Montevideo, at which a convention with reference to literary and artistic copyright was adopted January 11, 1889. The Montevideo convention has been ratified by Argentina (1894), Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892), though not by Brazil and Chile, which were also participants in the congress. It was in general on the lines of the Berne convention, though no mention was made of unpublished works. A work first published or produced in any one of the signatory countries and protected in that country in accordance with its requirements, was also accorded in the other countries the rights secured in the first country, but not for a longer term than was given in the country where protection was claimed. Dramatic works were specifically and playright impliedly protected. Provision was made for the inclusion of countries outside of South America, under which Belgium, France, Italy and Spain have become parties to the convention, but only in relation with Argentina and Paraguay. {Sidenote: Pan American conferences} In the winter of 1889-1890, the first Pan American conference was held in Washington, and at this a committee, of which Andrew Carnegie was the United States member, reported in favor of the adoption of the Montevideo convention. No action seems to have been taken, but it is probably this convention which is referred to as the first Pan American copyright treaty. The second Pan American copyright treaty, according to this numeration, was that adopted at the Pan American conference in Mexico City, signed January 27, 1902, at the same time with the patent and trade-mark treaty. This copyright convention was modeled somewhat on the lines of the Berne convention. At the Pan American conference in Rio de Janeiro, 1906, what is spoken of as the third Pan American copyright treaty, was adopted, and signed August 23, 1906, but this was really not so much a new treaty, as a supplementary convention providing for the development and regulation of international bureaus at Havana and Rio de Janeiro, and its provisions were never put into operation. A fourth Pan American copyright treaty, distinct from patent and trade-mark protection, was adopted at the Pan American conference at Buenos Aires in 1910 and signed August 11, 1910. The Mexico copyright convention was not ratified by the Senate of the United States until 1908 and was proclaimed by the President, April 9, 1908; the Rio convention has never been accepted by the United States; the Buenos Aires convention, replacing that of Mexico, was promptly approved by the U. S. Senate, February 16, 1911, but is yet to be acted upon by the other countries. {Sidenote: Mexico City conference, 1902} At the Pan American conference held in Mexico City in 1902, the second copyright convention was signed January 27, 1902, by representatives of Argentina, Bolivia, Colombia, Costa Rica, Chile, the Dominican Republic, Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru, Uruguay and the United States, the delegates of Nicaragua, Paraguay and the United States acting _ad referendum_. {Sidenote: Mexico convention, 1902} The first article of the Mexico convention formed the signatory states into "a Union for the purpose of recognizing and protecting the rights of literary and artistic property," which was defined (art. 2) as including "books, manuscripts, pamphlets of all kinds, no matter what subject they may treat of and what may be the number of their pages; dramatic or melodramatic works; choral music and musical compositions, with or without words, designs, drawings, paintings, sculpture, engravings, photographic works; astronomical and geographical globes; plans, sketches and plastic works relating to geography or geology, topography or architecture, or any other science; and finally, every production in the literary and artistic field, which may be published by any method of impression or reproduction." Copyright was defined (art. 3) as the exclusive right to dispose of the work, to publish, to sell and translate it or authorize translation, and to reproduce it in any manner, in whole or in part. {Sidenote: Indispensable condition} The "indispensable" condition of copyright was (art. 4) a petition from the author or his representative to the proper office, presumably of his own government, with two deposit copies, and if he desired recognition in other countries, with additional copies for each country designated, which copies were to be forwarded to the respective governments accompanied by a copy of the certificate of registration. Authors were secured (art. 5) in each country the rights granted by their own government within the term of protection of the country of origin--in works published in installments, the term of copyright to date from the publication of each part. The country of origin was defined (art. 6) as that of first publication, or in case of simultaneous publication, that having the shortest period of protection. The name or acknowledged pseudonym on a work (art. 9) was accepted as indication of the author except on proof to the contrary. {Sidenote: Special provisions} Authorized translations or those of non-protected works (art. 7) could be copyrighted as original works, but not to the exclusion of other versions of the latter. Newspaper articles might be reproduced (art. 8) on acknowledgment of source and author's name, if given; addresses before legislative assemblies, court or public meetings (art. 10) might be freely reproduced, and extracts made (art. 11) in publications devoted to public instruction or chrestomathy. "Unauthorized indirect use" or reprint under pretext of annotations or criticism (art. 12) was specified as unlawful reproduction. Pirated copies might be seized (art. 13) in any of the countries, without prejudice to other punishment of the infringer. Each country was to exercise (art. 14) police power in its own jurisdiction. The convention was to become effective for each signatory power three months after communication of its ratification to the Mexican government, and any participant might withdraw after one year's notice of denunciation, the convention to remain binding on the other powers. The signatory powers were to declare (art. 16) whether they would accept accession from countries unrepresented at the conference. {Sidenote: Ratification} The Mexico convention of 1902 was ratified by Guatemala (1902), Salvador (1902), Costa Rica (1902), Honduras (1904) and Nicaragua (1904), and by the United States (1908), perhaps also by the Dominican Republic and Cuba, and does not seem to be operative in the other countries whose representatives signed the treaty. {Sidenote: Rio de Janeiro conference 1906} At the third Pan American conference, held at Rio de Janeiro, in 1906, a convention was signed August 23, 1906, to protect patents of invention, drawings and industrial models, trade-marks and literary and artistic property, thus binding in one document patent and copyright protection. This is usually referred to as the third Pan American treaty, but it has not been accepted by the United States, partly because of objections to patent provisions and the combination of copyright provisions with them. {Sidenote: Rio provisions} This Rio convention re-adopted (art. 1) the Mexico treaty, with modifications as stated in the convention. These provided for two international bureaus (art. 2) for the centralization of registrations (art. 3), one at Havana for the United States, Mexico, Central American states, Panama, Colombia and Venezuela, Cuba, Haiti and San Domingo, and one at Rio de Janeiro for Brazil, Argentina and the other South American states, both to have (art. 4) identical systems and books, and to exchange monthly authenticated copies of documents, so that the two should practically constitute one bureau. The proper bureau was to receive (art. 5) from each country authenticated copies of its own registrations of patents and copyrights for transmission (art. 6) to the other countries, where they should be given full faith and credit, unless the proper bureau be notified to the contrary within one year. The registration in one country (art. 7) should have the same effect in each other country, as if made in all, and the term of protection was made that provided by the legislation of the country "where the rights originated or have been recognized," or, if no term is specified, then for patents fifteen years, for designs ten years, both subject to renewals, and for literary and artistic copyright life and 25 years. The expenses of the bureau were to be guaranteed (art. 8) by the several countries in the same proportion as for the bureau of American Republics (now called the Pan American Union) at Washington; the two bureaus were placed under the protection of Cuba and Brazil under identical regulations, made by concurrence of the two governments with the approval of the other countries; and an additional registration fee, equivalent to $5, collected in the country of original registration, was to be equally divided for the maintenance of the two bureaus. The bureaus were authorized (art. 9) to (1) collect and publish information, (2) print an official review, (3) to advise the respective governments of defects, (4) to arrange for future international conferences, (5) to make yearly report, (6) to exchange publications with other institutions, and (7) to act as coöperative agents for each of the governments concerned. The convention was to become effective (art. 10) on the establishment of one of the bureaus for such countries as should accede to the new convention, the other countries remaining bound by the former convention; and each of the bureaus was to be established (art. 11) as soon as two thirds of the countries in its own group should ratify the convention, and the first bureau established might act temporarily for the other countries. It was finally provided (art. 12) that Brazil should be the intermediary for exchange of ratifications. {Sidenote: Ratification} The Rio convention of 1906 was ratified only by Guatemala (1907 and 1909), Salvador (1907), Nicaragua (1908) and Costa Rica (1908), and by Chile (1910); and it never became effective. {Sidenote: Buenos Aires conference and convention, 1910} At the fourth Pan American conference, held at Buenos Aires in 1910,--twenty powers, including all the South American countries except Bolivia, being represented,--the fourth copyright convention was signed August 11, 1910. It undertakes to "acknowledge and protect the rights of literary and artistic property," and includes (art. 2) with dramatic and musical works those of a choregraphic character. It retains (art. 4) the definition of the scope of copyright. The provision as to the indicated author is continued (art. 5) in more precise language. It substitutes for the previous cumbrous method the simple provision (art. 3) "the acknowledgment of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full right in all the other States without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right." It continues (art. 6) the Mexico provisions as to copyright duration. The country of origin is further defined (art. 7) as "that of its first publication in America," and in case of simultaneous publication in several of the signatory countries, then that having the shortest term of protection. It specially provides (art. 8) that a work shall not acquire copyright through subsequent editions. It continues also (art. 9) the provisions for copyright in translations. It provides (art. 11) for the protection of "literary, scientific, or artistic writings, ... published in newspapers or magazines." But other articles may be freely reproduced, on acknowledgment of the source, which, however, is not required for "news and miscellaneous items published merely for general information,"--the provisions as to extracts in journals for public instruction or chrestomathy (art. 12) and those as to public addresses (art. 10) subject, however, to the internal laws of each state, being continued. The provisions as to unlawful reproduction (art. 13) are continued, and seizure of pirated copies (art. 14), police powers (art. 15) and provisions for ratification (art. 16) are the same as in the Mexico convention, except that the ratifications and denouncements are to be communicated to the Argentine government. This treaty, approved by the United States Senate, February 16, 1911, and signed by the President, waits other ratification to become effective. {Sidenote: Attorney-General's opinion on ratification} {Sidenote: Relation with importation provisions} The Mexico convention was signed by the United States delegates _ad referendum_, and before submitting it to the Senate for ratification, the President obtained through the Secretary of State an opinion from the Department of Justice, as to any reason against its submission for ratification, especially with reference to the act of 1891. Acting Attorney-General Hoyt replied in a confidential report of June 3, 1902, since made public, after quoting the prohibition of importation in section 3 of the act of 1891: "In the convention now in question there is no inhibition against such importations as are prohibited by said section 3, unless it can be said that such convention is 'an international agreement which provides for reciprocity in the granting of copyrights, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement,' as provided in section 13 of the same act. It is a matter of grave doubt whether this convention, made by the United States originally, is such an 'international agreement.' It is therefore quite probable that its ratification would except the authors of the nations signing it from the provisions of said section 3 of the act of March 3, 1891, leaving the authors of other countries still subject to such provisions. Your attention is directed to the fact that an affirmative answer to article 16 of the convention would also except from the provisions of said section 3 all countries that might hereafter adopt said convention. There appears to be no legal impediment to the ratification of this convention, nor would it constitute a breach of faith toward other countries; and in pointing out the probable effect of some of its provisions I do not intend thereby to express or intimate an opinion that it ought not to be ratified." The question of the relation between treaty provisions and domestic legislation especially affects copyright arrangements and has been the subject of discussion and a matter of difficulty in England and other countries as well as in the United States. The Senate did not act finally upon the Mexico convention until 1908, when it was duly ratified, and this precedent opened the way for more prompt ratification of the Buenos Aires convention. {Sidenote: United States international relations} The United States, as a party only to the Pan American Union and not a member of the International Copyright Union under the Berne-Berlin conventions, has not secured for its citizens general rights of copyright in other countries, without repetition of formalities, and such rights are secured only in the countries designated by Presidential proclamation and according to the formalities of their domestic legislation. It seems, however, that citizens of the United States may obtain general protection throughout the unionist countries by publishing in a unionist country simultaneously with first publication in the United States, and thus coming under the protective provisions of the Berlin convention. The Mexico convention permits citizens of the United States to obtain copyright in other countries ratifying that convention, by deposit at Washington of extra copies for transmission to countries designated, with certified copy of the registration. When the Buenos Aires convention is ratified by other powers nothing more will then be required than the usual application and deposit at Washington and notice of the reservation of rights, preferably in connection with the copyright notice, of which "all rights reserved for all countries" is the most comprehensive form. {Sidenote: "Proclaimed" countries} Under section 8 of the act of 1891, the President "proclaimed" from time to time the existence of reciprocal relations with other countries, which permitted their citizens to obtain copyright in the United States under the act, and American citizens to obtain protection under their respective copyright laws. The question of the _status_ of these countries under the act of 1909 was solved by the proclamation of the President on April 9, 1910, stating that "satisfactory evidence has been received that in Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and her possessions, Norway, Portugal, Spain and Switzerland, the law permits ... to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of those countries," and proclaiming "that the citizens or subjects of the aforementioned countries are and since July 1, 1909, have been entitled to all the benefits of the said Act other than the benefits under section 1, (_e_), thereof, as to which the inquiry is still pending"--the exception being as regards mechanical music. To this list of countries, Luxemburg was added by proclamation of June 29, 1910, and Sweden by that of May 26, 1911. {Sidenote: Mechanical music reciprocity} Under date of December 8, 1910, the first proclamation with respect to the international protection of mechanical music was made by the President, declaring the existence of reciprocal relations with Germany. Belgium, Luxemburg, and Norway were added by proclamation of June 14, 1911. It may be repeated, to make the list complete, that by the ratification in 1908 of the Mexico City convention of 1902, Guatemala, Honduras, Nicaragua and Salvador, as well as Costa Rica, have reciprocal copyright relations with the United States, making in all twenty-four countries (including Japan under the treaties excepting translations, and China under the limited provisions of the treaty of 1903) with which the United States has international copyright relations. XIX THE INTERNATIONAL COPYRIGHT MOVEMENT IN AMERICA {Sidenote: Initial endeavor in America, 1837} Simultaneously with the earliest legislation for international copyright among European states, there was a movement in the same direction in the United States. In the Twenty-fourth Congress, February 2, 1837, Henry Clay presented to the Senate an address of British authors asking for copyright protection in this country. This petition was signed by Thomas Moore and fifty-five others, and was later supplemented by additional signatures and by an American petition to the same effect. {Sidenote: The British address} The text of the address is as follows, the reference in paragraph seven being to a letter by Dr. M'Vickar, printed in the New York _American_, November 19, 1832: "The humble address and petition of certain authors of Great Britain, to the Senate and House of Representatives of the United States, in Congress assembled, respectfully showeth-- "1. That your petitioners have long been exposed to injury in their reputation and property, from the want of a law by which the exclusive right to their respective writings may be secured to them in the United States of America. "2. That, for want of such law, deep and extensive injuries have, of late, been inflicted on the reputation and property of certain of your petitioners; and on the interests of literature and science, which ought to constitute a bond of union and friendship between the United States and Great Britain. "3. That, from the circumstance of the English language being common to both nations, the works of British authors are extensively read throughout the United States of America, while the profits arising from the sale of their works may be wholly appropriated by American booksellers, not only without the consent of the authors, but even contrary to their express desire--a grievance under which your petitioners have, at present, no redress. "4. That the works thus appropriated by American booksellers are liable to be mutilated and altered, at the pleasure of the said booksellers, or of any other persons who may have an interest in reducing the price of the works, or in conciliating the supposed principles or prejudice of purchasers in the respective sections of your union: and that, the names of the authors being retained, they may be made responsible for works which they no longer recognize as their own. "5. That such mutilation and alteration, with the retention of the authors' names, have been of late actually perpetrated by citizens of the United States: under which grievance, your petitioners have no redress. "6. That certain of your petitioners have recently made an effort in defence of their literary reputation and property, by declaring a respectable firm of English publishers in New York to be the sole authorized possessors and issuers of the works of the said petitioners; and by publishing in certain American newspapers, their authority to this effect. "7. That the object of the said petitioners has been defeated by the act of certain persons, citizens of the United States, who have unjustly published, for their own advantage, the works sought to be thus protected; under which grievance your petitioners have, at present, no redress. "8. That American authors are injured by the non-existence of the desired law. While American publishers can provide themselves with works for publication by unjust appropriation, instead of by equitable purchase, they are under no inducement to afford to American authors a fair remuneration for their labours: under which grievance American authors have no redress but in sending over their works to England to be published, an expedient which has become an established practice with some of whom their country has most reason to be proud. "9. That the American public is injured by the non-existence of the desired law. The American public suffers, not only from the discouragement afforded to native authors, as above stated, but from the uncertainty now existing as to whether the books presented to them as the works of British authors, are the actual and complete productions of the writers whose names they bear. "10. That your petitioners beg humbly to remind your Honours of the case of Walter Scott, as stated by an esteemed citizen of the United States, that while the works of this author, dear alike to your country and to ours, were read from Maine to Georgia, from the Atlantic to the Mississippi, he received no remuneration from the American public for his labours; that an equitable remuneration might have saved his life, and would, at least, have relieved its closing years from the burden of debts and destructive toils. "11. That your petitioners, deeply impressed with the conviction that the only firm ground of friendship between nations, is a strict regard to simple justice, earnestly pray that your Honours, the representatives of the United States in Congress assembled, will speedily use, in behalf of the authors of Great Britain, your power 'of securing to the authors the exclusive right to their respective writings.'" {Sidenote: Henry Clay report, 1837} The British address was referred to a select committee, whose members were Clay, Webster, Buchanan, Preston and Ewing, which reported favorably a bill for international copyright. The report took high ground in favor of the rights of authors: "That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius, is incontestable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind.... It being established that literary property is entitled to legal protection, it results that this protection ought to be afforded wherever the property is situated.... We should be all shocked if the law tolerated the least invasion of the rights of property, in the case of merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws.... In principle, the committee perceive no objection to considering the republic of letters as one great community, and adopting a system of protection for literary property which should be common to all parts of it." {Sidenote: A prophecy of world union} The address of British authors and the Clay report called forth a little volume of "Remarks on literary property" by Philip H. Nicklin, a Philadelphia publisher, printed by his own firm of "law booksellers" in 1838, and dedicated to Henry C. Carey, which, though somewhat caustic in its criticisms of some of the arguments put forward by the British authors, heartily favored international copyright. The volume, in fact, contains a glowing prophecy of what was realized in large measure in the convention of Berne a half century later, the more interesting as coming from an American publisher, who was perhaps first to realize in thought the world-wide possibilities of the movement then in its beginnings. He suggested that Congress should empower the President to appoint commissioners to meet in Europe with similar representatives from other nations "to negociate for the enactment of a _uniform_ law of literary property, and the extension of its benefits to all civilised nations. It should be a new chapter of the _Jus Gentium_, and should be one law (_iisdem verbis_) for all the enacting nations, extending over their territories in the same manner as our law of copyright extends over the territories of our twenty-six sovereign states; so that an entry of copyright in the proper office of one nation should protect the author in all the others." {Sidenote: "One just law"} "Public opinion has made such progress in the various civilized nations, as would justify a great movement in favour of establishing a universal republic of letters; whose foundation shall be one just law of literary property embracing authors of all nations, and being operative both in peace and war. Besides the great impulse that would be given by such a law, to the improvement of literature and intellectual cultivation, the fellowship of interest thus created among the learned men throughout the world, would in time grow into a bond of national peace. Authors would soon consider themselves as fellow-citizens of a glorious republic, whose boundaries are the great circles of the terraqueous globe; and instead of lending their talents for the purpose of exasperating national prejudice into hostile feeling, to further the views of ambitious politicians, they would exert their best energies to cultivate charity among the numerous branches of the Human family, to rub off those asperities which the faulty legislation of the dark ages has bequeathed to the present generation, and to extend the blessings of christianity to the ends of the earth." {Sidenote: Clay bills, 1837-42} The Clay report, presented February 16, 1837, was accompanied by a bill drawn by Clay, extending copyright to British and French authors for works thereafter published, on condition of the issue of an American edition simultaneously with the foreign edition or within one month after deposit of the title in America, but it never came to a final vote, though reintroduced by Clay in successive Congresses December 13, 1837, December 17, 1838, January 6, 1840, and January 6, 1842. In 1840, January 8, the bill was reported back from the Judiciary Committee without recommendation or approval. The bill was also introduced into the House of Representatives by John Robertson, July 7, 1838, and by J. L. Tillinghast, June 6, 1840, but here also there was no action. {Sidenote: Palmerston invitation, 1838} An invitation was extended by Lord Palmerston in 1838 for the coöperation of the American government in an international arrangement with Great Britain, but nothing came of it. {Sidenote: Efforts 1840-48} Dr. Francis Lieber, a well-known publicist, addressed to Senator Preston, in 1840, a letter "On international copyright," prepared in coöperation with George Palmer Putnam, and issued in pamphlet form by the house of Wiley & Putnam. Charles Dickens's tour in 1841 stimulated interest in the subject, and there were high hopes of some result. In 1843 Mr. Putnam procured the signatures of ninety-seven publishers, printers, and binders to a petition which was presented to Congress, setting forth that the absence of international copyright was "alike injurious to the business of publishing and to the best interests of the people." A counter-memorial from Philadelphia objected that international copyright "would prevent the adaptation of English books to American wants." No result came from these petitions, nor from one presented in 1848 by William Cullen Bryant, John Jay, George P. Putnam, and others. {Sidenote: Everett treaty, 1853} In 1852 a petition for international copyright, signed by Washington Irving, James Fenimore Cooper and others, was presented to Congress; and in 1853 Edward Everett, then Secretary of State, negotiated through the American Minister in London, John F. Crampton, a treaty providing simply that authors entitled to copyright in one country should be entitled to it in the other, on the same conditions and for the same term. This treaty was laid before the Senate in a message from President Fillmore, February 18, 1853. The Committee on Foreign Relations of the Senate, through Charles Sumner, reported the Everett treaty favorably, but it was tabled in Committee of the Whole. Five New York publishers addressed a letter to Mr. Everett, supporting a convention, providing the work should be registered in the United States before publication abroad, issued here within thirty days after publication abroad, and wholly manufactured in this country. It was in this year that Henry C. Carey published his famous "Letters on international copyright," in which he held that ideas are the common property of society, and that copyright is therefore indefensible. Several remonstrances were also presented against the treaty from citizens of different states. The next year the amendatory article to the Everett treaty was laid before the Senate in a message from President Pierce of February 23, 1854, but no action resulted. {Sidenote: Morris bills, 1858-60} In the Thirty-fifth Congress in 1858, Edward J. Morris, of Pennsylvania, introduced into the House of Representatives a bill on the basis of remanufacture by an American publisher within thirty days of publication abroad, but it does not seem to have been considered, though it was reintroduced by him in 1860. {Sidenote: International Copyright Association, 1868} The matter slumbered until 1868--after Dickens's second visit in 1867--when a committee consisting of George P. Putnam, S. Irenæus Prime, Henry Ivison, James Parton, and Egbert Hazard issued an appeal for "justice to authors and artists," calling a meeting, which was held under the presidency of William Cullen Bryant, April 9, 1868. An International Copyright Association was then organized, with Mr. Bryant as president, George William Curtis as vice-president and E. C. Stedman as secretary, whose primary object was "to promote the enactment of a just and suitable international copyright law for the benefit of authors and artists in all parts of the world." A memorial to Congress, asking early attention for a bill "to secure in all parts of the world the right of authors," but making no recommendations in detail, was signed by one hundred and fifty-three persons, including one hundred and one authors and nineteen publishers. {Sidenote: Baldwin bill and report, 1868} In the Fortieth Congress, in accordance with instructions to the Committee on the Library, moved by Samuel M. Arnell of Tennessee, January 16, 1868, to report on international copyright "and the best means for the encouragement and advancement of cheap literature and the better protection of authors,"--a bill was introduced in the House, February 21, by J. D. Baldwin of Massachusetts, which provided for copyright on foreign books wholly manufactured here and published by an American citizen. The Committee's report said: "We are fully persuaded that it is not only expedient, but in a high degree important to the United States to establish such international copyright laws as will protect the rights of American authors in foreign countries and give similar protection to foreign authors in this country. It would be an act of national honor and justice in which we should find that justice is the wisest policy for nations and brings the richest reward." The bill was, however, recommitted and never more heard of. {Sidenote: Clarendon treaty, 1870} In 1870, what has since been known as the Clarendon treaty was proposed to the American government by Lord Clarendon on behalf of the British government, through Sir Edward Thornton, then British Minister at Washington. This was modeled on the treaties existing between Great Britain and other European nations, and provided that an author of either country should have full protection in the other country to the extent of its domestic law, on the sole condition of registration and deposit in the other country within three months after first publication in the country in which the work first appeared, the convention to continue in force for five years, and thence from year to year, unless twelve months' notice of termination were given. This was later criticised in Harper & Brothers' letter of November 25, 1878, as a scheme "more in the interest of British publishers than either of British or American authors," on the ground that British publishers would secure American with British copyright, and give no opportunity to American houses to issue works of English authors. {Sidenote: Cox bill and resolution, 1871} The next year the following resolution, offered by S. S. Cox, was passed by the House, December 18, 1871: "_Resolved_, That the Committee on the Library be directed to consider the question of an international copyright, and to report to this House what, in their judgment, would be the wisest plan, by treaty or law, to secure the property of authors in their works, without injury to other rights and interests; and if in their opinion Congressional legislation is the best, that they report a bill for that purpose." Mr. Cox had himself presented in the Forty-second Congress, December 6, 1871, a bill for international copyright on a basis of reciprocity, providing foreign works should be wholly manufactured in the United States and published by American citizens, and be registered, deposited and arrangements for such publication made within three months of first publication in the foreign country. This bill was supported in Committee of the Whole by speeches from Archer Stevenson, Jr., of Maryland, and J. B. Storm, of Pennsylvania, but opposed by William D. Kelley, of Pennsylvania. {Sidenote: The Appleton proposal, 1872} Mr. Cox's resolution was acted upon in 1872 by the new Library Committee, which invited the coöperation of authors, publishers, and others interested in framing a bill. At meetings of New York publishers, January 23 and February 6, 1872, a bill prepared by W. H. Appleton and accepted by A. D. F. Randolph, Isaac E. Sheldon, and D. Van Nostrand, of a committee, was approved by a majority vote. It provided for copyright on foreign books issued under contract with an American publisher, "wholly the product of the mechanical industry of the United States," and registered within one month and published within three months from the foreign issue, stipulating that if a work were out of print for three months the copyright should lapse. This was in line with a letter printed by W. H. Appleton in the London _Times_, October, 1871, denying that there was any disposition in the United States to withhold justice from English authors, but objecting to any "kind of legal saddle for the English publisher to ride his author into the American book-market"; in response to which Herbert Spencer, John Stuart Mill, Froude, Carlyle, and others had signed a memorial to Lord Granville expressing a willingness to accept a copyright on the condition of confining American copyright to American assigns of English authors, and excluding English publishers. Mr. Appleton's bill was opposed in a minority report by Edward Seymour, of the Scribner house, on the ground that it was "in no sense an international copyright law, but simply an act to protect American publishers"; that the desired "protection" could be evaded by English houses through an American partner; and that the act was objectionable in prohibiting stereos, in failing to provide for cyclopædias, and in enabling an American publisher to exclude revised editions. {Sidenote: Philadelphia protest, 1872} A meeting of Philadelphia publishers, January 27, 1872, opposed international copyright altogether, in a memorial declaring that "thought, when given to the world, is, as light, free to all"; that copyright is a matter of municipal (domestic) law; that any foreigner could get American copyright by becoming an American citizen; and that "the good of the whole people and the safety of republican institutions" would be contravened by putting into the hands of foreign authors and "the great capitalists on the Atlantic seaboard" the power to make books high. {Sidenote: The Bristed proposal, 1872} The Executive Committee of the Copyright Association met in New York, February 2, 1872, and put forward Charles Astor Bristed's bill securing, after two years from date of passage, to citizens of other countries granting reciprocity, all the rights of American citizens. {Sidenote: Kelley resolution, 1872} Probably as an outcome of the Philadelphia meeting, William D. Kelley, of Pennsylvania, introduced into the House, February 12, 1872, and caused to be referred to the Library Committee, the following resolution: "Whereas it is expedient to facilitate the reproduction here of foreign works of a higher character than that of those now generally reprinted in this country; and whereas it is in like manner desirable to facilitate the reproduction abroad of the works of our own authors; and whereas the grant of monopoly privileges, in case of reproduction here or elsewhere, must tend greatly to increase the cost of books, to limit their circulation, and to increase the already existing obstacles to the dissemination of knowledge: Therefore, _Resolved_, That the Joint Committee on the Library be, and it hereby is, instructed to inquire into the practicability of arrangements by means of which such reproduction, both here and abroad, may be facilitated, freed from the great disadvantages that must inevitably result from the grant of monopoly privileges such as are now claimed in behalf of foreign authors and domestic publishers." {Sidenote: Congressional hearings} {Sidenote: Beck-Sherman bill, 1872} The Library Committee gave several hearings on the subject, February 12 and later, and among other contributions to the discussion received a letter from Harper & Brothers taking ground that "any measure of international copyright was objectionable because it would add to the price of books, and thus interfere with the education of the people"; and a suggestion from John P. Morton, of Louisville, to permit general republication on payment of a ten per cent royalty to the foreign author. The same suggestion, providing for five per cent royalty, as brought forward by John Elderkin, was introduced, in a bill, February 21, 1872, by James B. Beck of Kentucky, in the House, and John Sherman of Ohio, in the Senate. {Sidenote: Morrill report, 1873} The Committee, in despair over these conflicting opinions, presented the celebrated Morrill report of February 7, 1873, Senator Lot M. Morrill being the chairman, including a tabular comparison of the prices of American and English books. It said that "there was no unanimity of opinion among those interested in the measure," and concluded: "In view of the whole case, your committee are satisfied that no form of international copyright can fairly be urged upon Congress upon reasons of general equity, or of constitutional law; that the adoption of any plan for the purpose which has been laid before us would be of very doubtful advantage to American authors as a class, and would be not only an unquestionable and permanent injury to the manufacturing interests concerned in producing books, but a hindrance to the diffusion of knowledge among the people, and to the cause of universal education; that no plan for the protection of foreign authors has yet been devised which can unite the support of all or nearly all who profess to be favorable to the general object in view; and that, in the opinion of your committee, any project for an international copyright will be found upon mature deliberation to be inexpedient." {Sidenote: Banning bill, 1874} This was decidedly a damper to the cause, and the movement lapsed for some years, a bill submitted to the House on February 9, 1874, by Henry B. Banning of Ohio, extending to authors the protection given to inventors, on a basis of international reciprocity, attracting meanwhile little attention. {Sidenote: The Harper proposal and draft, 1878} The question rested until 1878, when, under date of November 25, Harper & Brothers addressed a letter to William M. Evarts, Secretary of State, suggesting that previous failures were due "to the fact that all such propositions have originated from one side only, and without prior joint consultation and intelligent discussion," reiterating "that there was no disinclination on the part of American publishers to pay British authors the same as they do American authors," and that "American publishers simply wished to be assured that they should have the privilege of printing and publishing the books of British authors"; indicating "the likelihood of the acceptance by the United States of a treaty which should recognize the interests of all parties"; and proposing a conference or commission of eighteen Americans and Englishmen--three authors, three publishers and three publicists to be appointed by each side, by the American Secretary of State and the British Secretary for Foreign Affairs--which should consider and present the details of a treaty. {Sidenote: A suggested basis} They also presented, as a suggested basis of action, what came to be known as the "Harper draft," a modification of the Clarendon treaty, providing that there should be registration in both countries _before_ publication in the country of origin; that international registration should be in the name of the author: if a _citizen_ of the United States, at Stationers' Hall, London; if a _subject_ of her Majesty, at the Library of Congress, Washington; and that "the author of any work of literature manufactured and published in the one country shall not be entitled to copyright in the other country unless such work shall be also manufactured and published therein, by a subject or citizen thereof, within three months after its original publication in the country of the author or proprietor; but this proviso shall not apply to paintings, engravings, sculptures, or other works of art; and the word 'manufacture' shall not be held to prohibit printing in one country from stereotype plates prepared in the other and imported for this purpose." {Sidenote: Approval of the Harper draft} This draft was approved by fifty-two leading American authors, including Longfellow, Holmes, Emerson, and Whittier, in a memorial dated August, 1880. The American members of the International Copyright Committee, appointed by the Association for the Reform and Codification of the Law of Nations, John Jay, James Grant Wilson and Nathan Appleton, also memorialized the Secretary of State, under date of February 11, 1880, in favor of this general plan, specifying "within from one to three months" as the manufacturing limit. It was also approved by the great body of American publishers, although the Putnam, Scribner, Holt and Roberts firms in signing took exception to certain of the restrictions, especially to the time limit of three months. George Haven Putnam set forth the views of his house in a paper before the New York Free Trade Club, January 29, 1879, afterward printed as _Economic Monograph_ no. XV., "International copyright considered in some of its relations to ethics and political economy." In this he suggested simultaneous registration in both countries, republication within six months, and restriction of copyright protection here for the first ten years of the term to books printed and bound in the United States and published by an American citizen. An interesting series of replies from American authors, publishers, etc., as to methods for international copyright, to queries from the _Publishers' Weekly_ will be found in v. 15, commencing with no. 7, February 15, 1879. {Sidenote: Granville negotiations, 1880} The "Harper draft" was submitted in September, 1880, by James Russell Lowell, then American Minister at London, to Earl Granville, who replied, March, 1881, that the British government favored such a treaty, but considered an extension of the republication term to six months essential, and to twelve months much more equitable. In the same month the International Literary Association adopted a report favoring an agreement, but protesting against the manufacturing clause and time limit. This position was also taken at several meetings of London publishers, and F. R. Daldy was sent to America to further the English view. Sir Edward Thornton, British Minister at Washington, was instructed to proceed to the consideration of the treaty, provided the term for reprint could be extended, and both President Garfield and Secretary Blaine were understood to favor the completion of a treaty. With the death of Garfield the matter ended for the time. {Sidenote: Robinson and Collins bills, 1882-83} A bill dealing with the whole question of copyright, domestic and foreign, was introduced March 27, 1882, by W. E. Robinson of New York, and December 10, 1883, another copyright bill was introduced by P. A. Collins of Massachusetts, but neither emerged from the Committee on Patents, to which they were referred. {Sidenote: American Copyright League} {Sidenote: Dorsheimer bill, 1884} {Sidenote: Criticisms and changes} The question came to the front again in 1884. A new copyright association, the American Copyright League, had been organized in 1883, chiefly through the efforts of George P. Lathrop, Edward Eggleston, and R. W. Gilder, and there was a general revival of interest in international copyright. On January 9, 1884, William Dorsheimer, of New York, introduced into the House his bill for international copyright, which provided for the extension of copyright to citizens of countries granting reciprocal privileges, so soon as the President should issue his proclamation accepting such reciprocity, for twenty-five years, but terminable earlier on the death of the author. This bill was the occasion of a general discussion. The Copyright League addressed a letter to Mr. Dorsheimer urging the modification of the above limitations, and it was particularly pointed out that the confining of copyright to an author's lifetime would render literary property most insecure. The League also addressed a letter to the Secretary of State, urging the completion of a treaty with Great Britain, to which F. T. Frelinghuysen replied, January 25, 1884, that while the negotiation as to the Harper draft had not been interrupted, he thought the object might be attained by a simple amendment to our present copyright law, based on reciprocity, after which a simple convention would suffice to put the amendment in force. Mr. Dorsheimer's bill was referred to the House Committee on the Judiciary, and reported favorably, with amendments extending the copyright term to twenty-eight years, without regard to the death of the author, with renewal for fourteen years. The amended bill also provided that such copyright should cease in case reciprocity was withdrawn by the other country; that there should be no copyright in works already published, and that the provisions of the domestic copyright law should, as far as applicable, extend also to foreign copyrights. On the 19th of February Mr. Dorsheimer moved to make his bill the special order for February 27, but his motion failed of the necessary two-thirds vote, 155 voting aye, 98 nay and 55 not voting. There was considerable opposition on the part of those who insisted upon the remanufacture of foreign books in this country, and Mr. Dorsheimer privately expressed himself as willing to accept, although not willing to favor, amendments in that direction if they were necessary to insure the passage of the bill. {Sidenote: American publishers' sentiment} A circular letter of inquiry sent out by the _Publishers' Weekly_ early in 1884, showed a general desire on the part of American publishers in favor of international copyright. The replies were summarized in v. 25 from March, 1884. Of fifty-five leading publishers who answered, fifty-two favored and only three opposed international copyright. Out of these, twenty-eight advocated international copyright pure and simple; fourteen favored a manufacturing clause; the others did not reply on this point. Congress adjourned, however, without taking definite action. {Sidenote: Hawley bill, 1885} President Arthur, in his message of December, 1884, put himself on record as favoring copyright on the basis of reciprocity. A bill brought forward in the _Publishers' Weekly_ of December 6, 1884, was intended by a form admitting of easy amendment, to facilitate the passage of some kind of bill extending the principle of copyright to citizens of foreign countries under limitations set forth in subsequent sections of the bill. The Dorsheimer bill was reintroduced by W. E. English of Indiana, January 5, 1885, and on January 6 Senator Hawley introduced a general bill into the Senate. This latter, which covered all copyright articles, was understood to be favored by the Copyright League; it extended copyright to citizens of foreign states, on a basis of reciprocity, for books or other works published after the passage of the bill, by repealing those parts of the Revised Statutes confining copyright to "citizens of the United States or residents therein." No action was taken, however, on either the Dorsheimer or the Hawley bill. {Sidenote: Chace bill, 1886} In his first annual message, 1885, President Cleveland referred favorably to the negotiations at Berne, and with the opening of the Forty-ninth Congress two bills were introduced into the Senate, that of Senator Hawley, December 7, 1885, being essentially his bill of the previous year, and that of Senator Chace, January 21, 1886, a new bill, based on a plan put forward some years previously by Henry C. Lea, and now supported by the Typographical Unions and other labor organizations. The Hawley bill was on a simple basis of reciprocity; the Chace bill required registry within fifteen days and deposit of the best _American_ edition within six months from publication abroad, at a fee of $1, to be used in printing a list of copyright books for customs use, the prohibition of importations and the voiding of copyright when the American manufacturer abandons publication. The American Copyright League, of which James Russell Lowell was president and Edmund Clarence Stedman vice-president, favored the Hawley bill, which was practically a modification of the Dorsheimer bill, and it was introduced into the House by John Randolph Tucker of Virginia, January 6, 1886. {Sidenote: Congressional hearings, 1886} Hearings were held for four days by the Senate Committee on Patents on January 28, 29, February 12, and March 11, 1886, at which Mr. Lowell, Mr. Stedman, "Mark Twain" and others appeared on behalf of international copyright. A memorial signed by 144 American authors, was presented in the following terms: "The undersigned American citizens who earn their living in whole or in part by their pen, and who are put at disadvantage in their own country by the publication of foreign books without payment to the author, so that American books are undersold in the American market, to the detriment of American literature, urge the passage by Congress of an International Copyright Law, which will protect the rights of authors, and will enable American writers to ask from foreign nations the justice we shall then no longer deny on our own part." The memorial was presented to Congress in facsimile of the signatures of the authors and was reproduced in that form in the Bowker-Solberg volume on copyright of 1886. {Sidenote: Mr. Lowell's epigram} It was at this time that Mr. Lowell wrote his famous quatrain on "International copyright," which presented effectively the fundamental argument: "In vain we call old notions fudge, And bend our conscience to our dealing; The Ten Commandments will not budge, And stealing will continue stealing." On May 21, 1886, the Committee on Patents presented a report to the Senate, favoring the Chace bill, but no action resulted. {Sidenote: President Cleveland's second message, 1886} In President Cleveland's annual message December 6, 1886, at the opening of the second session, he called the attention of Congress to the fact that "the drift of sentiment in civilized communities toward full recognition of the rights of property in the creation of the human intellect has brought about the adoption by many important nations of an International Copyright Convention, which was signed at Berne 18th of September, 1885.... I trust the subject will receive at your hands the attention it deserves, and that the just claims of authors, so urgently pressed, will be duly heeded." But the Congress adjourned without heeding them. {Sidenote: Campaign of 1887} Senator Chace reintroduced his bill into the Fiftieth Congress, December 12, 1887. In the same month there was organized the American Publishers' Copyright League, with William H. Appleton as president and George Haven Putnam as secretary, and from that time forward the authors' and publishers' leagues acted in close coöperation. Copyright associations were formed in Boston, Chicago and elsewhere, to influence Congress and the public; Henry van Dyke, especially by his address on "The national sin of piracy," and other clergymen helped to emphasize the moral issue, and authors' readings held in New York, Washington and elsewhere brought the question widely to public notice and helped to raise funds for the campaign. During this period, R. U. Johnson, associate editor of the _Century_ magazine, who had been treasurer of the Authors' League, became its secretary, and throughout the campaigns ending in 1891 and 1909, had the working oar. The Typographical Unions, represented by John Louis Kennedy and James Welsh, gave support to the bill conditioned on the acceptance of the type-setting clause, and the opposition to it came chiefly from Gardiner G. Hubbard and certain legal representatives of unnamed clients. {Sidenote: Senate passage of Chace bill, 1888} {Sidenote: Bryce bill, 1888} The Chace bill, modified to require printing from type set or plates made within the United States and to prohibit the importation of foreign-made editions, passed the Senate, Senators Chace, Hawley, Hoar and O. H. Platt of Connecticut being foremost in its support, by vote of 35 to 10, May 9, 1888. It had been introduced into the House by W. C. P. Breckinridge of Kentucky, March 19, and favorably reported by the Judiciary Committee, April 21, 1888. A bill which had been introduced by Lloyd S. Bryce of New York, January 16, and referred to the Committee on Patents, was favorably reported by that Committee with amendment September 13, 1888. But the Mills tariff bill and other circumstances blocked the way, and the Fiftieth Congress adjourned without action by the House. {Sidenote: President Harrison's message, 1889} {Sidenote: Simonds bill, 1890} {Sidenote: Simonds report, 1890} President Harrison, in his first annual message, December 3, 1889, to the Fifty-first Congress, said, "The subject of an international copyright has been frequently commended to the attention of Congress by my predecessors. The enactment of such a law would be eminently wise and just." Senator Chace having resigned his seat, Senator O. H. Platt became chairman of the Committee on Patents and the chief advocate of the Chace bill, which he reintroduced December 4, 1889. In the House it was again introduced by Mr. Breckinridge on January 6, 1890, and referred to the Judiciary Committee, which made a favorable report, prepared by G. E. Adams of Illinois February 15, 1890. It was also introduced on the same day by Benjamin Butterworth of Ohio, as a Republican, and referred to the Committee on Patents, of which he was chairman. A third bill was also introduced on January 6, by W. E. Simonds of Connecticut, amending the patent and trade-mark acts with an incidental reference to copyright. Mr. Simonds presented a favorable report from the Committee on Patents February 18, but no action was taken on this report. The main bill was, however, reported from the Judiciary Committee by Mr. Adams, and on motion of William McKinley of Ohio, was made the special order for May 2, when it was debated, with amendments introduced by Mr. Adams and defeated on the third reading by a vote of 99 to 125. The bill was reintroduced, however, by Mr. Simonds with the inclusion of a reciprocity clause, May 16, 1890, and on June 10 the Committee on Patents through Mr. Simonds presented a strong report with a substitute bill, essentially the same. The Simonds report set forth that aside from "practical reasons" for the bill, "it is a sufficient reason that an author has a natural exclusive right to the thing having a value in exchange which he produced by the labor of his brain and hand. No one denies and everyone admits that all men have certain natural rights which exist independently of all written statutes." And in respect to international protection, the report said "the United States of America must give in its adhesion to international copyright or stand as the literary Ishmael of the civilized world." The report is printed in full and a detailed account of the campaign for this bill is given in G. H. Putnam's "The question of copyright." On December 3, 1890, the bill was again voted upon by the House and received a vote of 139 to 95 on its final passage. {Sidenote: Senate debate, 1891} In the Senate there was a notable debate lasting six days, February 9, 12-14, 17-18, 1891, in which Senators Sherman and Carlisle championed an amendment permitting the importation of authorized foreign editions which was opposed by the Typographical Unions as violating the manufacturing clause, and by authors and publishers as a restriction on authors' rights of control. Senator Frye on February 9, 1891, advocated an amendment extending the manufacturing clause beyond books to include maps, charts, dramatic or musical compositions, engravings, cuts, prints, photographs, chromos and lithographs. With these and other amendments, the bill passed the Senate 36 to 14, February 18, 1891. On February 28, 1891, the House voted 128 to 64 non-concurrence in the Senate amendments, and a Conference Committee was appointed. {Sidenote: Passage of act of March 4, 1891} This first Conference Committee, reporting on March 2, 1891, disagreed on the Sherman amendment, and accepted the other Senate amendments; the report was accepted by the House, 139 to 90, on March 2, 1891. The Senate, on March 3, refused by a vote of 33 to 28 to recede from the Sherman amendment, and a second Conference Committee was appointed. This second Conference Committee modified the Sherman amendment, and after an all-night session the copyright bill was passed, 127 to 77, by the House, March 3, and was also passed, 27 to 18, by the Senate at half past two in the morning, March 4, 1891. The bill as passed was in the form of amendments to the Revised Statutes, omitting the limitation to citizens or residents of the United States, confining copyright, in the case of a book, photograph, chromo or lithograph, to works of which the deposit copies should be "printed from type set within the limits of the United States, or from plates made therefrom, or from negatives or drawings on stone, made within the limits of the United States or from transfers made therefrom," and extending copyright to citizens of a foreign country only when such country protects American citizens "on substantially the same basis as its own citizens," or is a party to international arrangements, as determined by proclamation of the President. {Sidenote: Approval by President Harrison} The signature of President Harrison was promptly affixed before the close of the legislative day, and the United States at last, though in a restricted form, accepted international copyright after an exciting and dramatic contest, which began more than half a century before. The bill became effective July 1, 1891. {Sidenote: Review of the publishing situation} There had been a continuous growth in the United States, though displayed somewhat intermittently, of an active sentiment in favor of international copyright. For some years the question was less insistent, from the practical point of view, because of what was called "the courtesy of the trade," by which a publisher who was the first to reprint an English work was not disturbed by rival editions of that and of succeeding works by the same author. Under this custom, the leading American publishers voluntarily made payments to foreign authors, in many cases the same ten per cent paid to American authors, and reaching in one case of "outright" purchase of "advance sheets" $5000, though there was no protection of law for the purchase. American and English works then competed on much the same terms. In 1876 the cheap "quarto libraries" were started, reprinting an entire English novel, though on poor paper and often in dangerously poor type, for 10, 15, or 20 cents. They presently obtained the advantage, by regular issue (one "library" at one time issuing a book daily, others weekly), of the low postal rates for periodicals, of two cents a pound, and thus obtained a further advantage over books by American authors. These quartos gradually gave way to the "pocket edition," in more convenient shape, but not always in better print, at 20 or 25 cents. The sales of corresponding American books had meanwhile definitely fallen. {Sidenote: Lack of unified policy} {Sidenote: Compromise of 1891} The history of the movements for international copyright in America shows that there had been no continuous and well-defined policy on the part of the government authorities, or of publishers, or of authors. While authors almost unanimously, and publishers generally, favored international copyright, the division lines as to method were not between authors and publishers, but between some authors and other authors, and between some publishers and other publishers. There were those, in both classes, who objected to any bill which did not acknowledge to the full the inherent rights of authors, by extending the provisions of domestic copyright to any author of any country, without regard to other circumstances. There were others, at the other extreme, who opposed international copyright unless it was restricted to books manufactured in this country, issued simultaneously with their publication abroad, and of which the importation of other than the American copies was absolutely prohibited. The act of 1891 was finally passed with the assent of the advocates of authors' rights who were willing to waive the abstract principle in favor of any moderate measure which should be at least a first step of recognition, and which might justify by its results, even to the opponents of international copyright, further steps of future progress. {Sidenote: Need of general revision} While the act of 1891 was unsatisfactory to the friends of copyright, who desired rather that the United States might grant unrestricted international copyright and become a signatory power in the convention of Berne, it was thought fair and right not to attempt broader legislation for some years. Copyright legislation had become, however, confused and uncertain in the multiplicity of statutes, and the need of revision was emphasized in annual and special reports by Thorvald Solberg, an expert in copyright and skilled bibliographer, who had been appointed Register of Copyrights on the creation of that office in 1897 with the approval of the Librarian of Congress, Herbert Putnam, who had been appointed in 1899. In 1903 the Register of Copyrights presented a special report on copyright legislation which was made part of the report of the Librarian of Congress for 1903, and accompanied by a list of all copyright statutes by the original states and by the United States, the text of the revised statutes with notations of later provisions and a list of foreign copyright laws in force, which three documents were also published as separate pamphlets. {Sidenote: Ad interim copyright act, 1905} In 1905, March 3, an act was passed granting _ad interim_ protection for one year to works in a foreign language published in a foreign country, pending manufacture in America within one year of the original work or a translation thereof. This protection was conditioned on the deposit within thirty days from publication in a foreign country of a copy of the foreign edition bearing copyright notice and a reservation in the following form: "Published____, 19__. Privilege of copyright in the United States reserved under the Act approved March 3, 1905, by ____,"--which was also to be printed on all copies of the foreign work sold or distributed in the United States. {Sidenote: Copyright conferences, 1905-06} On January 27, 1905, Senator Kittredge announced (in Senate Report 3380) that the Committee on Patents purposed to "attempt a codification of the copyright laws at the next session of the Congress" and in a letter to the Librarian of Congress suggested that he call a conference of the several classes interested in such codification. Accordingly on April 10, the Librarian of Congress announced such a conference, of which sessions were held at the City Club in New York, May 31 to June 2, and November 1 to 4, 1905, and in the Library of Congress, Washington, March 13 to 16, 1906. At these conferences, organizations representing authors, dramatic and musical as well as literary, artists, publishers, printers, lithographers, librarians, the legal profession and the public, participated through delegates, and discussed first a basic memorandum presented by the American (Authors) Copyright League and thereafter successive drafts of a copyright measure prepared by the Register of Copyrights. As a result of these discussions, presided over by Librarian Putnam, the final draft was prepared under the immediate direction of the Librarian of Congress, which became the basis of the bill "to amend and consolidate the acts respecting copyright" introduced into the Senate by Senator Kittredge (Senate bill 6380) and into the House by Chairman Frank D. Currier (H. R. bill 19853), May 31, 1906. {Sidenote: "Copyright in Congress, 1789-1904"} In connection with these conferences, a number of valuable documents were prepared by Register Solberg and published through the Copyright Office, among them a chronological record of "Copyright in Congress, 1789-1904," with bibliography, summarizing all Congressional proceedings in relation to copyright through the second session of the Fifty-eighth Congress. {Sidenote: President Roosevelt's message, 1905} Meantime President Roosevelt, in his annual message of December 5, 1905, to the Fifty-ninth Congress, had made strong recommendations in favor of copyright reform: "Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public. Attempts to improve them by amendment have been frequent, no less than twelve acts for the purpose having been passed since the Revised Statutes. To perfect them by further amendment seems impracticable. A complete revision of them is essential. Such a revision, to meet modern conditions, has been found necessary in Germany, Austria, Sweden and other foreign countries, and bills embodying it are pending in England and the Australian colonies. It has been urged here, and proposals for a commission to undertake it have, from time to time, been pressed upon the Congress. The inconveniences of the present conditions being so great, an attempt to frame appropriate legislation has been made by the Copyright Office, which has called conferences of the various interests especially and practically concerned with the operation of the copyright laws. It has secured from them suggestions as to the changes necessary; it has added from its own experience and investigations, and it has drafted a bill which embodies such of these changes and additions as, after full discussion and expert criticism, appeared to be sound and safe. In form this bill would replace the existing insufficient and inconsistent laws by one general copyright statute. It will be presented to the Congress at the coming session. It deserves prompt consideration." {Sidenote: Congressional hearings, 1906-08} It was arranged that the two Committees on Patents of the Senate and House should hold joint sessions for public hearings on the copyright bill, and these hearings were held in the Senate reading room in the Library of Congress, the first June 6 to 9, 1906, the second December 7 to 11, 1906, the third March 26 to 28, 1908, of each of which full stenographic reports were printed for the Committees. At the first hearing the discussions were largely on the general principles of copyright and their special application to the right of musical composers to control mechanical reproduction of their works. Amendments proposed at this hearing were printed by the Copyright Office in two parts, and a third or supplementary part gave the comment of the Bar Associations' Committees. Register Solberg also printed as preliminary to the second hearing the copyright bill compared with copyright statutes then in force, and earlier United States enactments. {Sidenote: Kittredge-Currier reports, 1907} In 1907, at the second session of the Fifty-ninth Congress, the copyright measure was introduced by Senator Kittredge January 29, 1907 (Senate bill 8190), accompanied later by the majority report, February 5, 1907 (Senate report 6187), and a minority report, February 7, 1907 (Senate report 6187; part 2); and by Chairman Currier January 29, 1907 (H. R. bill 25133), accompanied later by the majority report, January 30, 1907 (H. R. report 7083), and by a minority report, March 2, 1907 (H. R. report 7083, part 2). No action was taken at this session. {Sidenote: Smoot-Currier, Kittredge-Barchfeld bills, 1907-08} At the first session of the Sixtieth Congress, Senator Smoot, who had become Chairman of the Patents Committee on the retirement from it of Senator Kittredge, introduced a majority bill December 16, 1907 (Senate bill 2499), and Senator Kittredge a minority bill December 18, 1907 (Senate bill 2900); and in the House, Chairman Currier introduced the majority bill December 2, 1907 (H. R. bill 243), and A. J. Barchfeld the minority bill January 6, 1908 (H. R. bill 11794). The Smoot-Currier bills, practically identical, were less favorable to authors, particularly in respect to mechanical reproductions of music, than the Kittredge-Barchfeld bills; and in a pamphlet "The copyright bills in comparison and compromise," prepared by R. R. Bowker in behalf of the American (Authors) Copyright League in March, 1908, the features of the several measures were compared and the views of the Copyright League set forth in a combined measure, with annotations. The "canned music" question, indeed, absorbed most of the time at the third hearing, in the stenographic report of which a combined index to the several hearings was printed. {Sidenote: Washburn, Sulzer, McCall, Currier bills, 1908} After the hearings, other bills were introduced into the first session of the Sixtieth Congress by C. G. Washburn May 4, 1908 (H. R. bill 21592), more fully representing authors' views; by Wm. Sulzer May 12, 1908 (H. R. bills 21984, 22071), embodying views of dramatic authors; by S. W. McCall May 12, 1908 (H. R. bill 22098), embodying an amendment to the manufacturing clause as phrased by the American (Authors) Copyright League, excepting from the manufacturing provision "the original text of a foreign work in a language other than English," and by Chairman Currier May 12, 1908 (H. R. bill 22183). But again no action was taken at this session. {Sidenote: Fourth Congressional hearing, 1909} At the short (second) session of the Sixtieth Congress the copyright bills were reintroduced in the House by Mr. Barchfeld December 19, 1908 (H. R. bill 24782), by Mr. Sulzer January 5, 1909 (H. R. bill 25162), by Mr. Washburn January 15, 1909 (H. R. bill 26282). On January 20, 1909, a fourth public hearing, specifically on "common law rights as applied to copyright," was given by the Copyright Subcommittee of the House Committee on Patents, to which had been referred the preparation of a final draft, which hearing was reported with the inclusion of a communication of Arthur Steuart, Esq., Chairman of the Copyright Committee of the American Bar Association, giving a careful analysis of the several common law rights possible as to copyright property. After this hearing there were further reintroductions of copyright bills by Mr. Washburn January 28, 1909 (H. R. bill 27310), by Chairman Currier February 15, 1909 (H. R. bill 28192), and in the Senate by Senator Smoot February 22, 1909 (Senate bill 9440). {Sidenote: Passage of act of March 4, 1909} The Currier bill was referred to the Committee of the Whole February 22, when a report (H. R. report 2222) was presented. On February 26, amendments were agreed to by the House Committee on Patents; on March 2 the bill had a further reading, and on March 3 was briefly discussed and passed by the House. Senator Smoot had reported to the Senate March 1, 1909, with a report from the Committee (Senate report 1108), and on March 3 the bill as passed by the House was brought before the Senate, briefly discussed, and passed. The exact votes were not recorded. {Sidenote: Approval by President Roosevelt} It had scarcely been hoped at the beginning of 1909 by the friends of copyright that the act could be passed during the short session, but the energy of Chairman Currier, complemented by Senator Smoot in the Senate, carried the bills through, and on March 4, the last day of the administration of President Roosevelt, himself an author of distinction and member of the Authors Club, he had the satisfaction of signing, as one of his last acts, a copyright bill completely codifying the law of copyright and greatly broadening international copyright. The copyright code, as in force July 1, 1909, is printed with an index and with the regulations adopted by the U. S. Supreme Court, as Copyright Office Bulletin 14. {Sidenote: Code of 1909} {Sidenote: Hopes of future progress} The code of 1909 made the manufacturing clause more drastic, though freeing photographs from its provisions, by requiring in the case of books, periodicals, lithographs and photo-engravings that they should be completely manufactured within the United States, including printing and binding as well as type setting, with requirement of affidavit from printer or publisher in the case of books; but made on the other hand a further approach to complete international copyright in freeing from the manufacturing clause "the original text of a book of foreign origin in a language or languages other than English," thus relieving a difficult situation which threatened retaliation and the rupture of copyright relations by Germany and other countries, and in extending protection to mechanical music reproductions on a reciprocal basis. The hopes of the friends of copyright will not, however, be fully realized until the manufacturing clause, with the affidavit provision, is repealed, and the United States enabled by Congress to join the family of civilized nations as a signatory power in the Berlin convention. XX COPYRIGHT THROUGHOUT THE BRITISH EMPIRE {Sidenote: English and American systems} Copyright in America has been so much modeled on English statutes, decisions and precedents, that the previous chapters have covered most of the points of copyright law in the United Kingdom. There are two essential points of difference, however, between the English and American systems. British copyright has depended essentially upon first publication, not upon citizenship; and registration and deposit, which are here a _sine qua non_, have there been necessary only (except in the case of works of art) previous to, and as a basis for, an infringement suit. {Sidenote: First publication and residence} A book first published in the United Kingdom (England, Scotland, Wales, and Ireland) has been _ipso facto_ copyright, under the act of 1842, throughout British dominions; and this protection was definitely extended, by the act of 1886, to a work first published elsewhere in the British dominions. This held whether the author were a natural-born or naturalized British subject, wherever resident; or a person who was at the time of publication on British soil, colonies included, and so "temporarily a subject of the Crown--bound by, subject to, and entitled to the benefit of the laws," even if he made a journey for this express purpose; or, probably but not certainly, an alien friend not resident in the United Kingdom nor in a country with which there was copyright reciprocity. Under the statute of Anne, it was decided by the Law Lords, in the case of Jefferys _v._ Boosey (overruling Boosey _v._ Jefferys), that a person not a British subject or resident was not entitled to copyright because of first publication in England, but the statute of 1842 was construed to alter this. In the ruling case under the last-named statute, Routledge _v._ Low, in 1868, Lords Cairns and Westbury laid down explicitly that first publication was the single necessity, and that copyright was not strengthened by residence; though Lord Cranworth objected and Lord Chelmsford doubted whether this was good law. It was because of this doubt that American authors had been accustomed to make a day's stay in Montreal on the date of English publication of their books. This decision was accepted by the law officers of the Crown and became in 1891 the basis for the reciprocal relations proclaimed by the President of the United States. {Sidenote: Variations in copyright terms} The copyright term in Great Britain has differed for the several subjects of copyright, under the divers acts as stated in previous chapters, the general term being for life and seven years or for forty-two years, whichever the longer. Registration at Stationers' Hall has been requisite only (except in the case of works of art) as preliminary to suit, and infringement previous to registration was punishable. Deposit of one copy in the British Museum has been required within a stated time from publication, but only on penalty of fine and not forfeiture of copyright, and the four university libraries might demand copies. Under the international copyright acts, registration and deposit at Stationers' Hall for transmission to the British Museum was requisite for foreign works; but this was made unnecessary by the adhesion of Great Britain to the International Copyright Union. {Sidenote: The new British code} The Copyright Act, 1911, as amended by the Lords, which became law (1 & 2 Geo. v. c. 46) on Crown approval December 16, 1911, provides a codification for the British Empire as comprehensive as the American code. The act covers as Part I, Imperial copyright, Part II, International copyright, Part III, Supplemental provisions. The act extends throughout His Majesty's dominions, but is not to be in force in a self-governing dominion (Canada and Newfoundland, Australia and New Zealand, and South Africa) unless enacted by the legislature thereof, either in full or with modifications relating exclusively to procedure and remedies or necessary to adapt the act to the circumstances of the dominion, in case of which adoption the legislature may repeal the act or enact supplementary legislation with reference to works first published or whose authors are resident within the dominion. Thus the bill practically permits the self-governing colonies to legislate independently, each for itself within its domain. The act may also be extended by Orders in Council to English protectorates "and Cyprus." Its provisions are also made applicable (by Part II on international copyright) through Orders in Council to subjects or citizens of foreign countries, directly or through separate action by self-governing dominions, under conditions which practically cover countries within the International Copyright Union under the Berne-Berlin conventions, though these are not named in the act; and to countries having reciprocal relations,--with authority to the Crown to withdraw any benefits of the act from citizens of countries not giving reciprocal protection. This code is based largely upon previous British practice, though with considerable extension and improvement. {Sidenote: Scope and extent} Copyright under this code covers "every original literary, dramatic, musical, and artistic work," first published within the included parts of His Majesty's dominions, and in the case of an unpublished work, the author of which was "at the date of the making of the work" a British subject or a resident domiciled within such included parts [or under protection through the international copyright provisions]. {Sidenote: Publication} "A work shall be deemed to be published simultaneously in two places if the time between the publication in one such place and the publication in the other place does not exceed fourteen days," or such longer period as may be fixed by Order in Council. Publication is expressly distinguished from performance, exhibition or delivery. {Sidenote: Definition of copyright} Copyright is defined to mean "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever" or any translation thereof, to publish, perform, or deliver the work in public, to dramatize or novelize it, to make any record, roll, film or other contrivance by which it may be mechanically performed or delivered or to authorize any such acts. Architectural works of art are included as to design but not process or method. {Sidenote: Infringement and exceptions thereto} Infringement is comprehensively and sweepingly defined to cover any copying or colorable imitation of any copyright work or the doing by an unauthorized person of "anything the sole right to do which is by this Act conferred on the owner of the copyright." The code specifically excepts from the provisions against infringement (1) any "fair dealing" for private study, research, review or newspaper summary; (2) the use by an artist who has sold his copyright in a work of moulds, sketches, etc., except to repeat or imitate the design of that work; (3) the making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situate in a public place or building, or (if not in the nature of architectural drawings or plans) of an architectural work of art; (4) the use in collections described and advertised as for school use, of extracts from copyright works (not themselves published for the use of schools), not more than two from any one author, and not duplicated within five years by the same publisher; (5) the newspaper report of a public lecture, unless specifically prohibited by exhibited notice; and (6) the reading or recitation in public by one person of any reasonable extract. {Sidenote: Term} The copyright term is for the life of the author and fifty years after his death, with provision that after an author's death the Judicial Committee of the Privy Council may, on allegation of the withholding of the work, require grant of license to reproduce, publish or perform it. Posthumous works, works the property of the Crown, photographs and mechanical music reproductions, are protected for fifty years; but no specific term seems to be indicated for anonymous or pseudonymous works as such. Works of joint authorship are protected for fifty years after the death of the author who _first_ dies, or during the life of the author who dies last, whichever the longer period, and such works may be protected by action of any one of the authors. Twenty-five years, or for existing works thirty years after an author's death, any person may under specified conditions publish a copyright work on payment of ten per cent royalty--following an Italian precedent. Compulsory license is also provided for mechanical music reproductions, in case the author permits any such reproduction--following the American provision. University copyrights are continued in perpetuity only for existing copyrights. {Sidenote: Ownership} The author of a work is the first owner of the copyright, except in the case of a work done on order or in the course of contract employment. The owner of a copyright may by an assignment in writing assign his rights wholly or partially, and either generally or as limited to any part of His Majesty's dominions, or for the whole term of copyright or any part thereof, or license accordingly. But no assignment otherwise than by will shall be operative beyond twenty-five years from the death of the author, when the copyright reverts to his natural heirs, following Spanish precedent. Registration provisions are altogether omitted from the new measure. {Sidenote: Deposit copies} Deposit is required at the British Museum within one month after publication, "of every book published in the United Kingdom" on penalty of fine not exceeding five pounds and the value of the book, and copies must also be supplied to the four university libraries, and for specific classes to the National Library of Wales, on demand--the "best" edition in the case of the British Museum, and that of which most copies are sold in the other cases. {Sidenote: Importation} Importation of "copies made out of the United Kingdom ... which if made within the United Kingdom would infringe copyright," is prohibited, on notification in writing to the Commissioners of Customs (the Isle of Man being specifically excepted from this provision), and similar prohibition is authorized as to British possessions. The use in the section on infringement of the phrase "imports for sale or hire," taken from the act of 1842, involves a possible limitation of this prohibition which is discussed in the chapter on importation. {Sidenote: Remedies} The usual civil remedies are provided, actions being limited within three years from the infringement. If the real name of an author, or in the absence of such, the name of a publisher, is indicated on a work, that is _prima facie_ evidence of copyright ownership in the prosecution of infringement. An infringer may be relieved from damages (but not from injunction) on proving innocence; architectural infringements may not be enjoined after commencement of the structure, but are punishable by damages. On summary conviction any person who knowingly for sale or hire or for trade makes, sells or lets, distributes, exhibits, or imports infringing copies, shall be liable to a fine not exceeding forty shillings for each copy or fifty pounds for the same transaction, or in the case of a second offense, to imprisonment not exceeding two months; and similar provision is made as to infringing performance. The summary remedies in the musical copyright acts of 1902 and 1906 remain unrepealed. {Sidenote: General relations} The provisions of the code are extended to cover existing copyrights. Common law rights are specifically abrogated by provision confining the protection of an unpublished as well as a published work to statutory provisions. {Sidenote: Acts repealed} The measure repeals all existing enactments except sections seven and eight (modified) of the fine arts copyright act, 1862 (25 & 26 Vict. c. 68), which deal with fraudulent signature or marketing of art works and concern fraud rather than copyright, and the musical copyright acts of 1902 and 1906, providing summary remedies for piracy of musical works; and the provisions regarding copyrights of the customs and revenue acts are continued with modifications conforming them to this act. The act does not apply to designs capable of being registered under the patents and designs act, 1907. Schedules of existing and corresponding rights and of enactments repealed are appended to the bill. The act is effective July 1, 1912, unless earlier made effective by Order in Council. {Sidenote: Changes from original bill} It may be noted that the new British measure had been much modified,--especially in the Committee stage, where efforts to reconcile conflicting interests were chiefly effective,--since its introduction as a Government measure in 1910. In the earlier form it was provided that the contributor of an article or contribution, periodical articles included, might retain a specific copyright except as against the proprietor of a collective work, and that an article in a newspaper, not being a tale or serial story, might be reproduced in another newspaper in default of a notice expressly forbidding it, providing the source were duly acknowledged. University copyrights, new as well as old, it was then proposed should still be perpetual. Copyright, it was specifically provided, should not pass from an artist when he sells his original work except by agreement in writing, but subsequent transfers of the original work from an owner also of the copyright, should transfer the copyright--but this is probably taken as implied in the new law. Registration at Stationers' Hall was continued and made applicable to all classes of works, and though optional, it was practically necessitated by the ingenious provision that in the absence of such registration an infringer might plead ignorance and be freed from damages. The summary provisions of the musical copyright acts were extended to cover other works, and these acts it was therefore proposed to repeal. The compulsory license provision limiting musical copyright and certain provisions as to ownership and term were introduced in the Committee stage. The word "infringing" was substituted for "piratical" in Parliamentary debate to conciliate a supersensitive member. The compromises and modifications indicated brought the measure before Parliament as an "agreed upon" bill. {Sidenote: Isle of Man} {Sidenote: Channel Islands} The Isle of Man applies the copyright law of the United Kingdom, and has a supplementary law of 1907, applying British legislation on engravings and prints, sculpture, paintings, etc., and musical compositions, quite up to date, embodying in the latter section the latest provisions as to summary proceedings in the protection of music--this being enacted by "the Deemsters and Keys in Tynwald assembled," as the tiny Manx parliament is quaintly called. The Channel Islands of Jersey and Guernsey also apply British copyright law by ordinances or local legislation in their respective domains. {Sidenote: International relations} Great Britain was one of the original parties to the Berne convention and accepted the additional act, but not the interpretative declaration of Paris, and the passage of the new measure will permit adhesion to the Berlin convention. She has a special treaty with Austria-Hungary (1893), sometimes cited as the treaty of Vienna of 1893, and has been in reciprocal relation with the United States as a "proclaimed" country since July 1, 1891. {Sidenote: Colonial relations} The British dominions outside of the United Kingdom and Ireland are, in general, under the like provisions of Imperial copyright law, including the law of 1842 and earlier unrepealed or subsequent acts, the colonial copyright act of 1847 and the international copyright act of 1886 being especially important. They are also generally included under British international relations embracing the Berne-Paris provisions of the International Copyright Union and the reciprocal relations with the United States, but with the exception that in the Austria-Hungary treaty, Canada, New South Wales and Tasmania (both now part of the Australian Commonwealth), and Cape Colony (now part of the Union of South Africa) are not parties, because these colonies did not exercise the right of ratification specifically reserved to individual colonies. {Sidenote: Judicial confirmation} The application of the Berne convention to the British possessions was upheld in an important Canadian decision, when in 1906 Justice Fortin, in Mary _v._ Hubert, in the Quebec Court of King's Bench, held that the British international copyright act in relation with the Berne convention protected a French work from Canadian reprint, though the author had not complied with specific Canadian requirements,--a most significant decision in defense of international copyright. {Sidenote: Local legislation} Under the colonial copyright act of 1847, which declared local legislation or decrees repugnant to the Imperial law to be null and void, local legislation consonant with Imperial acts was permitted, subject to approval by the Crown through Orders in Council, in which case prohibition of importation of foreign reprints might be suspended by Order in Council with regard to the particular colony. Under this act, local legislation with special provisions existed in British India and other colonies, as well as in the "self-governing dominions," which last now include Canada and Newfoundland, Australia and New Zealand, and South Africa, and which have somewhat greater powers of local legislation. Under these local provisions, the Imperial law still prevails, local legislation being concurrent but not necessarily co-terminous with it, as is particularly noticeable in Canada, where there has been more or less conflict between the Imperial and Dominion authorities. Local protection may thus be extended, for instance, to works not first published within the British possessions, or in a unionist country, but copyright cannot be denied to works thus first published; and the Crown disapproves or disallows laws or provisions construed by the Imperial authorities to be repugnant to Imperial law. More than a score of colonies have adopted local laws or ordinances, some of which have been disallowed by the Crown. The _status_ of copyright in the several colonies is thus indefinite and confusing, even to the best-informed English jurists, and can seldom be stated with certainty. Under the new British code, the "self-governing dominions" will have the right to accept the Imperial code, either completely or with adaptation to local judicial methods, or to legislate independently. {Sidenote: Canadian copyright history} In respect to the colonies now constituting the Dominion of Canada, before British copyright protection had been definitely extended to works first published outside the United Kingdom, Lower Canada in 1832, Canada (upper) in 1841 and Nova Scotia in 1847 had passed copyright statutes to protect authors of books first published in the respective provinces. On the passage of the Imperial act of 1847, authorizing the suspension of that portion of the act of 1842 which prohibited the importation of foreign reprints of British copyright works, as to any colony in which provision should be made by local legislation for protecting the rights of British authors, Orders in Council were passed for Nova Scotia and New Brunswick in 1848 and for Canada in 1850, suspending such prohibition, following satisfactory protection accorded by local acts in those years. These local acts provided for the collection of an impost on foreign reprints of works by British authors in favor of the author or copyright owner. {Sidenote: Dominion of Canada: early acts} In 1867 the British North America act (30 & 31 Victoria, c. 3) was passed, providing for the union of Canada and the other North American provinces (except Newfoundland) under the title of the Dominion of Canada, and section 91 of this act specified copyright among the subjects which were to be within the legislative authority of the Parliament of Canada. At the first session of the first Dominion Parliament in 1868, a general copyright act was accordingly passed, which was followed in the same year by an act continuing the customs duty of 12-1/2 per cent on foreign reprints of British copyright works, and an Imperial Order in Council was passed July 7, 1868, continuing Canada within the provisions of the foreign reprints act of 1847. The returns to British authors from this duty proved so small--only £1084 in ten years--that there was much dissatisfaction, and this impost was finally discontinued in 1895, whereupon the suspension under the Imperial act of 1847 of the prohibition of importation ceased to be in force in Canada and foreign reprints of British copyright works were again under the Imperial law prohibited. {Sidenote: Acts of 1875} In 1872 a new Canadian copyright act was passed, but it was disallowed by the Imperial authorities, whereupon, in 1875, the Parliament of Canada passed a new act, carefully drawn to avoid conflict with Imperial legislation. To remove any doubts as to its validity, the "Canada copyright act" of 1875 was passed by the British Parliament to authorize the royal assent. This Imperial act forbade the importation into the United Kingdom of colonial reprints, though authorized for the Canadian market by British authors (and therefore not piracies), of any work which might be copyrighted in Canada, and in which copyright subsisted in the United Kingdom. The Canadian act of 1875 then received the approval of the Crown, and as replaced and substantially re-enacted by the Revised Statutes of Canada, 1886 (c. 62),--which also included (as c. 37) the amendatory act of 1886, prohibiting the importation of "reprints of Canadian copyright works and reprints of British copyrighted works which have been also copyrighted in Canada,"--is still in force, being now Revised Statutes, 1906, c. 70, pt. I, as the fundamental Canadian copyright law, subject to amendments since passed and approved. The Imperial and Canadian laws of 1875, taken together, make it possible to issue in Canada cheaper reprints of British copyright works, by arrangement with the author or copyright owner, without interfering with the more costly English editions. {Sidenote: License acts disallowed} It should here be noted that the Canadian act of 1889, as amended by the Canadian act of 1895, constituting Part II of chapter 70 of the Revised Statutes, 1906, has never been approved and brought into force by proclamation of the Governor-General. The act of 1889, following the Imperial international copyright act of 1886, extended Canadian copyright on condition of registration with the Minister of Agriculture, and printing and publication or production in Canada within one month after publication or production elsewhere, and provided that the Minister of Agriculture might grant licenses, not exclusive, for the production of works not thus protected on an undertaking to pay to the author ten per cent royalty on the retail price, in which case importation of foreign-made (but not British) editions might be prohibited during the copyright period. The act of 1895 extended this license system to works which the copyright proprietor failed to keep in print in Canada, unless he should give satisfactory assurance of prompt reissue. These acts, as noted, never became effective. {Sidenote: The Fisher act, 1900} In 1900 an amendment to the copyright act was passed which is sometimes referred to as the Fisher act. It provides that if a book, as to which there is subsisting Canadian copyright under the copyright act, has first been published in any part of the British dominions other than Canada, and the owner of the copyright has granted a license to reproduce in Canada an edition of such book designed for sale in Canada only, the Minister of Agriculture may prohibit the importation into Canada, except with the written consent of the licensee, of any copies of such book printed elsewhere, excepting two copies each for the use of public or institution libraries. There is some question as to the compatibility of this act with Imperial law. {Sidenote: Minor acts} {Sidenote: Short form of notice} An act of 1887 had authorized the transfer from the Minister of Agriculture to the Minister of Trade and Commerce of the registration of industrial designs and trade-marks, but this transfer has never taken place. The acts of 1890 and 1891 provided for copyright suits in the Exchequer Court of Canada in the name of the Attorney-General or at the suit of any person interested. The act of 1895 also contained a provision adding to the two deposit copies required for Canada a third for deposit in the British Museum. Finally an act of 1908 substituted the short form of copyright notice, "Copyright, Canada, 19__, by A. B." This completes the history of Canadian copyright legislation. {Sidenote: Proposed Canadian copyright code, 1911} The copyright legislation of Canada will presently be replaced by a comprehensive code, utilizing the permission granted by the new Imperial copyright measure to self-governing dominions. The new bill, of which the original text, as submitted to Parliament April 26, 1911, is given in full in the appendix, will establish relations between the Dominion of Canada and the Imperial authority closely similar to those established by the Australian act of 1905, between that Commonwealth and the home government. It pushes still further the precedent of "protection to home industries" followed by American copyright legislation since 1891, and is a far more drastic measure, evidently in retaliation against the United States and with preferential relations toward Great Britain in view. Americans can scarcely criticize, however, the logical application in Canada of legislation on this side of the border. Copyright is to "subsist in every original literary, dramatic, musical and artistic work the author of which was at the date of making the work a _bona fide_ resident in Canada," not first published outside Canada (simultaneous publication being defined as within fourteen days), conditioned on registry before publication, and the manufacture of every copy within Canada. One registration of a periodical is to protect all future issues. Copyright it is proposed to define broadly, as in the new English bill, including the right "if the work is unpublished, to publish the work," thus bringing unpublished works within the statute law and probably excepting them from common law protection; and protection against mechanical music reproduction is also to be included. The term is to be for the life of the author and fifty years thereafter, with the new British proviso as to works of joint authorship, that the term is to be for the life of the author who dies first and fifty years thereafter, or the life of the author who dies last, whichever period is the longer. Assignment of copyright must be in accordance with the acts, and be registered. Importation of copies made out of the British dominions is prohibited. In case of a license for a Canadian edition of a book, copies printed elsewhere may be prohibited importation, except two copies for library use. Copyright may also be extended to foreign citizens under arrangements made by the governor in Council. British subjects resident elsewhere than in Canada may be brought under the act by Order in Council. {Sidenote: Imperial and Canadian copyright} {Sidenote: Requisites for domestic copyright} The Imperial and Canadian copyright laws, apparently a complexity of complexities, are construed with relation to each other and thus do not conflict. Each is good _pro tanto_. The Canadian copyright law permits any person domiciled in Canada or in any part of the British possessions, or any citizen of any country which has an international copyright treaty with the United Kingdom, who is the author of a literary, scientific or artistic work, to obtain copyright in Canada for twenty-eight years, with a right of renewal for fourteen years to the author, if living, or to his widow or children, if he is dead, conditioned on re-registration within one year _after_ the expiration of the original term, publication of a renewal notice in the Canadian Gazette and fulfillment of the obligations of original copyright. The requirements for obtaining domestic copyright in Canada are that the work shall be printed and published in Canada, shall be registered and three copies thereof deposited at the Department of Agriculture (Copyright Branch) before publication, and that each copy published shall bear the notice as cited above. In the case of paintings, drawings and sculpture, the original work may be protected by deposit of a written description instead of copies. {Sidenote: Imperial and local protection} Under the Imperial copyright act of 1886, providing that a book first published in any part of the British dominions shall have copyright throughout those dominions, works are protected in Canada under that act. Subjects or citizens of a country which has no international copyright relations with the United Kingdom may obtain copyright in Canada under the Canadian law by showing that they have British copyright in the work and complying with the other Canadian requirements. Copyright obtained under the Canadian copyright law, so far as it relates to books first published in the British dominions, is in addition to and concurrent though not co-terminous with Imperial copyright. The Copyright Branch in the Department of Agriculture is in charge of the Registrar of Copyrights, Trade Marks and Designs, a post filled since 1906 by P. E. Ritchie, Esq. Canadian copyright may be obtained in a work although the Imperial copyright may have been lost by reason of first publication having been made outside of the British dominions or treaty relationship, the Canadian law providing that literary works may be protected when printed and published in Canada, whether they are so published for the first time or contemporaneously with or subsequently to publication elsewhere. {Sidenote: Additional local protection} Canadian copyright also affords additional protection and relief not granted by Imperial copyright, by provisions (1) that the importation into Canada of foreign reprints of Canadian copyright works is prohibited, and (2) that every person who knowingly prints, publishes, sells, or exposes for sale any piratical copy of a copyright work shall forfeit every such copy to the copyright owner and shall pay for every such copy found in his possession, printed, published or exposed for sale by him not more than one dollar and not less than ten cents, one half of which shall belong to the copyright owner. {Sidenote: Application for copyright} An applicant for Canadian copyright, either the proprietor or his authorized agent, whether domiciled in Canada or other British possessions or a citizen of a country having an international copyright treaty with Great Britain, should make application to the Minister of Agriculture (Copyright Branch), Ottawa, Canada, for which statutory forms are provided from that office, attested by two witnesses and accompanied by a fee of one dollar for copyright registration, or fifty cents in case of _interim_ or temporary copyright, and three copies of the book (full bound), map (mounted), etc., as printed and published in Canada, or written description of a work of art. A book must bear the statutory copyright notice, but a work of art the signature of the artist only. An author or his legal representative may obtain _interim_ copyright pending publication or republication in Canada or temporary copyright during serial publication, by registering the designation or title of a work. Thus a citizen of the United States may protect his work in Canada through international copyright by first publication in the British dominions and also through Canadian copyright, with additional protection, by complying with the requirements of the Canadian law, which are in some respects closely parallel with those of the United States. {Sidenote: Newfoundland} In Newfoundland, always a separate colony and now a self-governing dominion separate from the Dominion of Canada, an act of 1849 for the protection of British authors was followed by an Order in Council of the same year extending to that colony the provisions of the Imperial act of 1847. It made provision, following the precedent of Canada, for a customs duty on foreign reprints of British copyright works, which provision was re-enacted in the Consolidated Statutes of 1872 as chapter 53 and again in the Consolidated Statutes of 1892 as chapter 111, the duty being at twenty per cent. In 1890 a copyright act was passed, which remains the fundamental copyright act of Newfoundland, as included in the Consolidated Statutes of 1892 as chapter 110, supplemented by chapter 111, as above indicated. These two chapters have been amended only by the act of 1898 placing copyrights, patents and trade marks under the jurisdiction of the Colonial Secretary, an officer provided for in the act, and the act of 1899 reducing the copyright fee of one dollar to twenty-five cents in the case of photographs. Copyright in Newfoundland is on the same general lines as in Canada, following in large part the precedent of the United States, and is for a term of twenty-eight years with renewal for fourteen years--local protection as distinguished from Imperial protection being given to works printed and published--or in the case of works of art, produced--within Newfoundland, on condition of registration with the Colonial Secretary and deposit with him of two copies of a printed work, bearing statutory copyright notice, or of the description of a work of art,--which work must bear the signature of the artist,--one of the two copies being for the use of the Legislative Library. {Sidenote: British West Indies, etc.} In the British West Indies, Jamaica has domestic legislation of 1887 under the Imperial act of 1886, for the British term, requiring the deposit at an office notified in the Jamaica _Gazette_ of three copies within one month from publication--one for the British Museum, one for official use, and one for a designated public library. The Governor may declare one copy sufficient where deposit of three copies would inflict injury. Trinidad, under an ordinance of 1888, provides similarly for the deposit of three copies in the office of a Registrar of copying rights, with optional but not obligatory registration of playright. The minor British islands in the West Indies, the Bahamas, British Guiana and British Honduras, seem not to have provided local legislation, but remain exclusively under Imperial law. {Sidenote: Australian code of 1905} The copyright act, 1905, of the Commonwealth of Australia, assented to December 21, 1905, is a comprehensive code superseding previous copyright legislation by the several states formerly separate colonies, New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania, although it preserves the rights in existing copyrights taken out under the several state acts. International copyrights under acts of the Parliament of the United Kingdom and state copyrights may be registered under this act and then enforced throughout the Commonwealth. This act covers (Part III) literary, musical and dramatic copyright and separately (Part IV) artistic copyright. Part I, preliminary, deals with definitions, and Part II with administration. Part V deals with infringement, Part VI with international and state copyright, Part VII with registration and Part VIII with miscellaneous provisions. "The common law of England" is specifically applied to unpublished literary compositions. The Australian code is of course concurrent though not co-terminous with the Imperial law, and must be construed in consonance with it. It is admitted that artistic works are not protected in Australia under either Commonwealth or Imperial law unless "made in Australia," and this serious difficulty the Commonwealth authorities proposed to remedy by an amendatory act which was presented to the Commonwealth legislature in 1906 but was not then passed. To prevent importation of pirated works, written notice of the copyright and its term should be given to the Minister in Australia unless communicated to him by the Commissioners of Customs of the United Kingdom, from registry in London, through the lists periodically distributed. {Sidenote: General provisions} Copyright in a book covers the right, directly or by authorization, to copy, abridge, translate, dramatize or novelize, and in the case of a musical work "to make any new adaptation, transposition, arrangement, or setting of it, or of any part of it in any notation." "Copyright shall subsist in every book" (including by definition a dramatic or musical work, when printed and published), "whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia, in cases where type is not necessarily used, and has ... been published in Australia before or simultaneously" (defined as within fourteen days) "with its first publication elsewhere"; and the copyright term is forty-two years from first publication in Australia or the life of the author or of the last surviving joint author and seven years thereafter, whichever the longer. Performing right and lecturing right subsist separately for a like period from first public performance or delivery in Australia simultaneously with first public performance or delivery elsewhere. But lecturing right ceases if a lecture is published as a book. The author is the first owner of copyright or performing right, except as employed for valuable consideration, and in the latter case may reprint an article from a periodical after one year. Copyright subsists in every artistic work "made in Australia," but the copyright of a portrait or photograph is with the person ordering it. {Sidenote: Dramatic and musical works} A dramatic work includes a libretto or lyrical work set to music or otherwise, "or other scenic or dramatic composition"; a musical work is defined as "any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced"--which seems to omit mechanical reproductions. {Sidenote: Performing right} Copyright is a distinct and separable property from performing right or the ownership of an artistic work, and either right may be separately assigned under any conditions or limitations. Where a dramatic or musical work is published as a book, notice of reservation of performing right must be printed thereon, in default of which the owner of the performing right cannot obtain damages from an infringer, but may obtain them from the owner of the copyright who has neglected after notice to print such reservation. The proprietor, tenant or occupier who permits a place to be used for an infringing performance shall be deemed an infringer. The owner of a performing right may himself issue notices in writing forbidding performance, disregard of which involves a specified fine. {Sidenote: Registration and license} Provision is made for a registrar and deputies, and for a general Copyright Office where shall be kept separate registers of literary copyrights, of fine art copyrights and of international and state copyrights. The owner of any copyright, performing or lecturing right may obtain registration by the deposit of two copies of the best edition of a book or one copy of an art work or photograph of it, and no suit can be maintained prior to such registration. In case, after the death of an author, the owner of the copyright or performing right withholds the work from the public, the Governor-General may grant a license for publication or performance. {Sidenote: New Zealand} New Zealand, now a separate self-governing dominion, provided when a British colony,--like the Australian colonies before their consolidation into the self-governing Commonwealth,--by an Ordinance of 1842 for a copyright term of twenty-eight years or life, whichever the longer, and has since passed special acts, covering specific classes, 1877 to 1903, but seemingly no general code. Photographs are protected for five years from the taking. Telegraph dispatches were protected by the electric lines act of 1884. Local registration seems to be provided only, and then optionally, for the protection of plays, for which purpose application with a copy of the play should be made at the Registry of Copyrights, Wellington, and if the play is printed a copy deposited in the Library of the General Assembly; and summary jurisdiction, with power of fine and imprisonment, is then given to the magistrates. To prevent importation, notice may be filed with the Minister of Customs in New Zealand, or through the London commissioners, as in the case of Australia. {Sidenote: Australasia otherwise} In the other British islands of Australasia and the Pacific, Imperial copyright exclusively prevails, as a Fiji Islands' Ordinance of 1903, the only one passed in any of the smaller islands, was disallowed by the Crown. {Sidenote: British India} British India provided a general copyright act in 1847, in line with preceding Imperial legislation, and under the press copyright act of 1867, somewhat modified the British Imperial law, especially providing for deposit of three copies in an office to be designated from time to time in the official gazette, within one month from publication, and the printing on each copy of the printer's and publisher's names. Quarterly publication of such titles is provided for as part of the official gazette. The general term is as in Great Britain, for life and seven years or forty-two years, whichever is longer, with variations for particular classes of works. Ceylon, Mauritius and Hong Kong have the like term and also provide for three deposit copies. In all these cases one copy is retained by the Secretary of State of the colony, one put at the disposition of the Governor and Council, and one after registration deposited in a designated public library. Straits Settlement (Singapore) provides for registration without deposit, in the office of Colonial Secretary. To prevent importation into British India, specific notice may be filed directly with the Collectors of Customs at Bombay, Madras and Calcutta as well as through the London customs. {Sidenote: South Africa} South Africa, the latest of the British self-governing dominions as organized in 1910 into a Union, has not yet adopted a general copyright code, which it may do under the precedent of Australia or after passage of the new British copyright code, by acceptance of that code or by independent legislation. Meantime its copyright relations are those of the former separate colonies, as the Cape Colony, Natal and other English colonies, following in the main English precedent, and the Transvaal and other Dutch colonies, following Holland precedent, including a requirement for printing within the country as a prerequisite for copyright. {Sidenote: Cape Colony} The Cape Colony, under acts of 1873, 1880, 1888 and 1895, provided local copyright for life and five years or thirty years, whichever the longer, four copies of a book or printed play first published in the colony to be deposited for registration by the printer within one month from delivery from the press, for registration with the Registrar of Deeds, these copies to be transmitted to designated libraries. Telegraph dispatches in newspapers were protected by the act of 1880, for 120 hours. Lists of copyrighted works are printed in the government gazette and thus communicated to the colonial customs authorities. {Sidenote: Natal} Natal, under acts of 1895, 1897 and 1898, provided local protection for the regular British term, two copies to be deposited with the Colonial Secretary for registration, within three months from publication. Messages by telegraph, pigeons and other special dispatch were protected by the act of 1895, for 72 hours. To protect a play, the title, if in manuscript, or a printed copy, must be registered precedent to local action. Probably failure to deposit in these colonies does not forfeit copyright, and imperial provisions generally hold good. {Sidenote: Transvaal} The Transvaal, under local legislation of 1887, provided protection for fifty years from registration, receipt or for life, on condition of printing within the colony, and the deposit of three copies thus printed, within two months of publication, accompanied by the affidavit of the printer, without which formalities copyright was forfeited. A resolution of 1895 authorized waiver of the printing requirement in the case of countries having reciprocal relations. Reservation by printed notice was required to protect playright and right of translation; playright in a printed play was limited to ten years, but for an unpublished play was for life and thirty years. All these colonies, whether formerly British or Dutch, are probably now under Imperial copyright law, which would nullify local provisions incompatible with that law, pending the enactment of a South African general code. {Sidenote: West coast colonies} Sierra Leone and the neighboring British colonies on the west coast, as Gambia and the Gold Coast, are under imperial copyright law, and passed local ordinances under the provisions of the British act of 1886, Sierra Leone having provided by Ordinance of 1887 for copyright for the usual British term with deposit of three copies in an office to be designated in the Sierra Leone Royal _Gazette_, and the other colonies having similar provisions. {Sidenote: Mediterranean islands} The Mediterranean islands of Malta and Cyprus, in addition to imperial copyright, have local ordinances providing respectively for registration in an office notified in the government gazette, and deposit of three copies, within one month from publication. Gibraltar seems to be only under Imperial copyright. XXI COPYRIGHT IN OTHER COUNTRIES {Sidenote: France} France has always been the most liberal of countries in giving copyright protection to foreign as well as native authors publishing within France, and copyright was perpetual up to the abrogation by the National Assembly in 1789 of all privileges previously granted. Though two acts regarding dramatic performances (_spectacles_) were passed in 1791, it was not till 1793 that the National Convention passed a general copyright act, which still remains the fundamental law of French copyright. The state still has copyright in perpetuity in works published by its order or by its agents, but not in private copyrights lapsing to the state for lack of heirs; copyrights otherwise, by the law of 1866, are for life and fifty years. Playright is protected without deposit, but the printer of a book or play is required to deposit two copies on penalty of fine but not forfeiture of copyright. No formalities are requisite, but to obtain a right of action, deposit of two copies of a book is required, at the Ministry of the Interior at Paris or at the Prefecture or town clerk's office if in the provinces, for which a receipt is given. More than a score of laws modifying the French copyright system have been passed, the latest being that of April 9, 1910, providing that transfer of a work of art does not involve the copyright. {Sidenote: French foreign relations} France, which had in general extended the protection of domestic copyright to works published in France, whatever the nationality of the author, specifically protected, by the decree of 1852, from republication (though not from performance) works published abroad, without regard to reciprocity, on compliance with the formalities of deposit previous to a suit for infringement. It early negotiated treaties with other countries, only those with England (since replaced by relations through the International Copyright Union) and Spain requiring deposit in those countries, while four of the countries which required registration permitted that it should be performed at their legations in Paris. France, as also its protectorate Tunis, became one of the original signatory powers of the Berne convention of 1886, adopted the Paris acts of 1896, and after some delay and discussion accepted the revised Berlin convention under the act of June 28, 1910, ratified by decree of September 2, 1910, with reservation as to works of applied design, as to which it maintained the stipulations of the previous conventions. It has treaties with Austria-Hungary (1866-1884), Holland (1855-1884), Montenegro (1902), Portugal (1866), and Roumania by an arrangement on the "most favored nation" basis (1907). It has also still existing treaties with Germany (1907), Italy (1884), and Spain (1880), among the unionist countries, on the "most favored nation" basis--former treaties with Great Britain and the Scandinavian countries having been superseded by International Copyright Union relations. It has been in reciprocal relations with the United States as a "proclaimed" country since July 1, 1891; and it has also treaties with the Latin American countries of Argentina (1897), and Paraguay (1900), both under the Montevideo convention, Bolivia (1887), Costa Rica (1896), Ecuador on the "most favored nation" basis (1898, 1905), Guatemala (1895), Mexico through a treaty of commerce on the "most favored nation" basis (1886), and Salvador (1880), and one with Japan (1909) as to rights in China. Algiers and other colonies are under French law, and French precedent is followed by the protectorate Tunis, though as a separate power. {Sidenote: Belgium} Belgium, under the law of 1886, grants copyright and playright for life and fifty years, including translations and photographs, or for corporate and like works fifty years. No formalities are required except that corporate and posthumous works must be registered at the Ministry of Agriculture within six months from publication. Notice is required only to forbid reproduction of newspaper articles. Belgium is one of the original parties to the Berne convention, adopted the Paris acts and ratified on May 23, 1910, the Berlin convention. It has treaties with Austria (1910), Holland (1858), Portugal (1866), and Roumania (1910), as also with Germany (1907) and Spain (1880)--all save Austria and Portugal on the "most favored nation" basis; it has been in reciprocal relations with the United States as a "proclaimed" country since July 1, 1891, and as to mechanical music since June 14, 1911, and has also treaties with Mexico on the "most favored nation" basis (1895), and under the Montevideo convention with Argentina and Paraguay (1903). {Sidenote: Luxemburg} Luxemburg, under its law of 1898, very nearly a copy of the Belgian law, grants copyright and playright for life and fifty years. The right to translate is protected for ten years from the publication of the original work. Registration is required only for posthumous or official works to be made at the Office of the Government; and notice is required only to reserve playright or to forbid reprint of newspaper articles. Protection is provided against mechanical music reproductions. Luxemburg was an acceding party to the Berne convention, accepted the Paris acts and ratified the Berlin convention July 14, 1910; it has had reciprocal relations with the United States as a "proclaimed" country since June 29, 1910, and as to mechanical music since June 14, 1911. {Sidenote: Holland} Holland, originally giving copyright in perpetuity under indefinite conditions, and later applying French law, is now under its law of 1881, the only country in Europe still requiring, in accordance with its ancient practice, printing and publication within the country. Two copies, so printed, must be deposited with the Department of Justice within a month from publication, and playright must be reserved on a printed work. The general term is for fifty years from the date of the certificate of deposit and through the life of the author, if he has not assigned his work, and for unprinted works, including oral addresses, life and thirty years. The protection for unprinted works covers playright and the right to translate, and protects any author domiciled within Holland or the Dutch Indies. For corporate and like works, the term is fifty years. The exclusive right to translate, must be reserved on the original work and exercised within three years; the translation is then protected for five years, provided it is printed within the country. Playright in a printed play lasts only ten years from deposit. Holland is not a party to any general convention, but it has a treaty with Belgium on the "most favored nation" basis (1858) and arrangements with France (1855-1884); and it has had reciprocal relations with the United States as a "proclaimed" country since November 20, 1899. The Dutch colonies, as in the East and West Indies and elsewhere, are generally included under Dutch law. A new copyright code presented by the government in 1910, omitting the printing requirement, has passed the first Chamber, and after it becomes law Holland, under a concurrent vote in 1911, is authorized to accede to the Berlin convention. {Sidenote: Germany} Copyright throughout the German Empire is now regulated for literary (impliedly including dramatic) and musical works and certain illustrations, by the act of 1901,--in which year there was also adopted an act regulating publishers' rights and contracts; and for works of figurative art and photographs by an act of 1907. An act of 1910 amends these in some particulars. {Sidenote: History} These laws superseded entirely the previous acts, dating back to 1870, when the first imperial copyright act was passed after the realization of German unity under Emperor William I. The original act forming the Germanic confederation in 1815, had authorized the German Diet to protect authors' rights, and after futile decrees in 1832 and 1835, resolutions were passed in 1837 making protection effective for a minimum period of ten years throughout all the states which granted protection to authors. Prussia had meanwhile, under the King's Order in Council of 1827, arranged in 1827-29, reciprocal relations with thirty-three out of the thirty-eight states and free cities in the German confederation, and with Denmark for its German provinces, through which the citizens of other states enjoyed the same privileges as natives; and in 1833 the same reciprocal provisions were extended to cover Prussian provinces outside the federation. Many of the early copyright systems had not extended protection to an author's heirs, but in 1837 Prussia passed an improved law making the term life and thirty years and granting protection to citizens of foreign countries in the same proportion that works published in Prussia were therein protected. Thus, up to the time of the Empire, copyright was protected as a matter partly of federal and partly of state legislation. {Sidenote: Laws of 1901-07} Copyright under the imperial legislation of 1901-07 was granted for life and thirty years, and furthermore for posthumous works at least ten years from publication; and for anonymous, pseudonymous and corporate works, thirty years. Copyright in photographs is for ten years only, and in any event ceases ten years after the author's death. The copyright term is reckoned from the end of the calendar year of an author's death or of publication. In joint authorship, the term is from the death of the last surviving author. Playright is, inferentially, under like terms and conditions. The author of anonymous or pseudonymous works, on registering his name, may obtain protection for the full term. In works published in parts, the publication of the last part determines the copyright term. Corporate bodies (juridical persons) are recognized as authors; in composite works the originator of the work as a whole, or if no such editor is mentioned, then the publisher, is regarded as author; if a literary work is accompanied by music or by illustrations, the author of each part is regarded as originator of his separate work; in inseparable composite works, a partnership arrangement is recognized by the law. No formalities are required, but registration of the author's name on its disclosure in the case of an anonymous or pseudonymous book, may be made in the register to be kept by the Municipal Council of Leipzig for a fee of a mark and a half (36 cents) and expense of official publication originally in the _Börsenblatt_, but since a law of 1903 in the _Reichsanzeiger_. Translations, adaptations, etc., are protected as original works. Official documents, public speeches, etc., are not protected, and reproduction of newspaper articles, except those of a scientific, technical or recreative character, is permitted, unless reservation is made, on condition of acknowledgment and that the meaning shall not be distorted. Extracts are permitted under specified limitations. Poems may be used as set to music unless distinctively intended for that purpose; and musical compositions, except operas and the like, may be played for charity purposes or by musical societies for members and their families. {Sidenote: Art provisions} In the case of a work of art, reproduction for personal use and gratuitously is permitted, but during an author's life only by photographic means; this permission authorizes only, as to a work of architecture, reproduction of exterior aspect and not of the work upon the ground. The person ordering a portrait is entitled to reproduce it, except on agreement to the contrary. Reproduction and exhibition are permitted of portraits in contemporary history or when accessories, as in a landscape or part of a procession or assemblage, or in the interest of art if not made to order,--provided this is not to the injury of the reputation of the original; or in the interest of justice or public safety. Reproductions of works standing permanently in public places are permitted, but these may not be affixed to a work of architecture. {Sidenote: Piracy} Piracy is punished by damages and a statutory fine, or imprisonment in case of intentional infringement, but proceedings must be commenced within three years. The law provides for committees of experts in the several states under regulations of the imperial government to act as arbiters or to advise the justices; and there is final appeal to the Supreme Court of the Empire. {Sidenote: Foreign citizens} The law protects all works of a subject of the German Empire and works of aliens, if published within the Empire before previous publication elsewhere, the latter clause a change from the former practice of protecting works by a foreigner if published by a firm having a place of business or a branch within the Empire. {Sidenote: German foreign relations} Germany was a party to the Berne convention and to the Paris acts, and ratified July 12, 1910, the Berlin convention. This ratification was made possible by an act of May 22, 1910, modifying domestic copyright to conform with the provisions of the Berlin convention, and incidentally repealing and replacing sec. 22 of the law of 1901, regarding mechanical music reproduction, as fully stated in the chapter on that subject. On July 12, 1910, the Emperor promulgated an ordinance providing for the application of the law, and both the Berlin convention and this new law became effective September 9, 1910. Germany has treaties outside the Union with Austria-Hungary (1899), has special treaties beyond the provisions of the Union on the "most favored nation" basis, made in 1907 with Belgium, France, and Italy, and has been a "proclaimed" country in reciprocal relations with the United States since January 15, 1892. By proclamation of December 8, 1910, reciprocal relations as to mechanical music reproductions were also proclaimed between Germany and the United States. {Sidenote: Austria-Hungary} In Austria-Hungary, the dual states of that empire have separate copyright as well as other legislative relations. Austrian domestic copyright is based on the law of 1895, as amended by that of 1907, and Hungarian on the law of 1884. Copyright in Austria is dependent on publication within the country and citizenship or reciprocal relations; in Hungary on publication by a Hungarian publisher and two years' residence in the case of foreign authors whose country is not in reciprocal relations. In Austria the general term is for life and thirty years, in Hungary life and fifty years, or for corporate, anonymous and like works, thirty or fifty years respectively, unless the anonymous author discloses his identity. Registration, in Austria at the Ministry of Commerce, and in Hungary at the Ministry of Agriculture, is required only for anonymous and pseudonymous works, and in Hungary in other special cases, as plays. The right of translation must be reserved on the work, for specified languages or in general, and must be exercised within stated periods; notice is also required on photographs, and in Austria on musical works to protect performing right. Posthumous works, if published in the last five years of the thirty or fifty year term, are protected for five years from publication. Photographs are protected only for ten years in Austria and five years in Hungary. Collections of telegraph news, as printed in a newspaper, are protected in Hungary. Austria and Hungary have a treaty with each other (1907), and jointly with Great Britain (1893), Germany (1899), France (1866-1884) and Italy (1890), involving in the case of Hungary registration in Hungary as well as in the country of origin. Austria has also treaties with Belgium (1910), Denmark (1907), Roumania (1908), and Sweden (1908), and has been in reciprocal relations with the United States as a "proclaimed" country since December 9, 1907; Hungary is negotiating reciprocal relations with the United States, but has otherwise no separate treaties. Neither Austria nor Hungary is a unionist country. {Sidenote: Switzerland} Switzerland, under its federal constitution of 1874 and the law of 1883, provided copyright for life and thirty years or for corporate and like works thirty years, giving protection for the full term to translations if the right to translate is exercised within five years from publication. Photographs were protected for five years only. No formalities are required, though an author has the option of registering his work, with the exception that registration in the Office of Intellectual Property is required within three months from publication for the protection of posthumous and official publications and photographs. Notice of reservation of playright is required on printed copies. Switzerland was an original party to the Berne convention, accepted the Paris acts and ratified the Berlin convention without reservation in 1910. It has had reciprocal relations with the United States as a "proclaimed" country since July 1, 1891, and included copyright in a treaty with Colombia (1908). {Sidenote: Scandinavian countries} The Scandinavian countries, Denmark, Norway and Sweden, in which last copyright was formerly perpetual, now grant protection for life and fifty years as the general term, or fifty years for corporate and like works, an anonymous author having the right to the full term on printing his name in a new edition or declaring it by registration. Photographs are protected for five years--in Norway for fifteen years. The right to translate into a Scandinavian language is protected for the full term; into other languages for the full term in Norway, but in Denmark and Sweden only for ten years from the end of the year of publication of the original work, with an addition in Denmark that a translation published within these ten years protects the author for the full term against unauthorized translation into that language. No formalities are requisite, but in Norway the printer is required, though default does not affect copyright, to deposit a copy with the university library in Christiania within a year of publication. Notice is required, however, on photographs, and except in Sweden, to reserve right of musical performance. Denmark, by two laws of 1911, requires deposit and registration of photographs. Sweden makes the exceptions that works of art are protected for life and ten years and that playright is for life and thirty years, or for anonymous plays, only for five years, unless the author meantime discloses his identity. In Denmark and Norway right of recitation and in Sweden playright must be specifically reserved. {Sidenote: Scandinavian foreign relations} Denmark's domestic copyright is covered by laws of 1865, 1902, 1904, 1908 and 1911, Norway's by those of 1877, 1882, 1893, 1909 and 1910, Sweden's by the general laws of 1897, codifying those of 1877, etc., respectively for literary, art and photographic works, and amendatory acts of 1904 and 1908. All three are unionist countries. Denmark remains under the Berne-Paris agreement, not having accepted the Berlin convention. Norway became party to the Berlin convention by ratification September 4, 1910, with reservations as to architectural works, in which it adheres to article IV of the Berne convention; as to newspaper and review articles, in which it adheres to article VII of the Berne convention; and as to the retroactive provision, in which it adheres to article XIV of the Berne convention. Sweden remains under the Berne convention and the interpretative declaration of Paris, not having accepted either the Paris additional act or the Berlin convention. Each Scandinavian country has a special copyright treaty with the other two (1877, 1879, 1881). Denmark has also a treaty with Austria (1907) and Sweden with Austria (1908). Denmark has had reciprocal relations with the United States as a "proclaimed" country since May 8, 1893, Norway since May 25, 1905, and as to mechanical music since June 14, 1911, and Sweden since June 1, 1911. A special law for Iceland, embodying in general the Danish provisions, was passed in 1905, and the Danish law may be taken as covering the other Danish colonies, as the Danish West Indies, in lack of special legislation. {Sidenote: Russia} Russia early gave, in 1828-30, enlightened protection to authors, providing for a term of life and twenty-five years, with an added ten years under specified circumstances, and protecting an author's copyright from seizure by his creditors and from passing from a bankrupt publisher except on fulfillment of the author's contract. Under the civil code of 1887, copyright was extended to life and fifty years, but playright was only nominally protected and the protection of translations was negatived by a decision that translations must be word for word. The new law sanctioned March 20, 1911, is a comprehensive and detailed code providing copyright for life and fifty years, except that certain collections are only protected for life and twenty-five years and periodicals for twenty-five years, photographs for ten years and translations on notice of reservation for ten years, the right to translate being exercised within five years from publication. Playright is protected, but on a musical work notice of protection must be printed. A photograph must bear notice of its purpose, date and author's name and domicile. Protection is accorded to all works published in Russia and works published by Russian subjects domiciled elsewhere; and provision is made for treaties on reciprocal conditions. The law treats also of relations between authors and publishers. Russia, though represented at Berlin, has as yet no international relations. {Sidenote: Finland} Finland, formerly an independent grand duchy, protects copyright under its law of 1880 for a general term of life and fifty years, with exceptions as to photographs, etc., and with provisions as to translation into the Finnish and Scandinavian languages similar to those of Scandinavian countries. Other provisions are similar to those of Russia. It has no exterior copyright relations. {Sidenote: Spain} Spain passed a general copyright code in 1879, which applied not only to the Peninsula, but _ultramar_ to Cuba and the other colonies, and became a model for later legislation in several Spanish-American countries, under which code detailed regulations were promulgated in 1880. This code is enforced through the penal code of 1870 and the civil code of 1889. Ordinances from 1893 to 1910 deal with the regulations as to details. Spain grants copyright for life and eighty years on condition of registration by deposit of three signed copies with the Register of Intellectual Property in the Ministry of Agriculture, or in the provincial centres for registration, within one year from publication. In default of registry within the year, any one may publish the work for ten years; and if after the ten years the author fails to register within the ensuing (twelfth) year, the work falls into the public domain. Protection is given for an indefinite term to works issued by the state and, to the extent of their legal existence, those from corporate bodies. A work assigned within the life of the author, remains in the possession of the assignee during the full term unless there are natural heirs (_herederos forzosos_--"forced" or inalienable heirs), in which case the right reverts to such heirs twenty-five years after the death of the author, on registry of such right and proof of succession under the regulations accompanying the act. This, according to the official Spanish print, is for the remaining fifty-five years--not, as in a French version, for twenty-five years only. A musical work is protected with reference to other instruments and to other forms in a provision so broad that it is possibly applicable to mechanical music reproductions. Writings and telegrams inserted in periodicals may be reproduced unless this is expressly forbidden by notice at the title or at the end of the article--a provision which implies the protection of articles and telegrams in case of such notice of reservation. Works not republished for twenty years fall into the public domain, except in the case of unprinted dramatic or musical works,--unless the proprietor shows that during such period he has kept copies on sale. The protection of domestic law is extended by the terms of the law to citizens of countries having reciprocal relations, without additional formalities. {Sidenote: Spanish foreign relations} Spain was one of the original parties to the Berne convention, accepted the Paris acts and adopted the Berlin convention without reservation, through ratification by the King September 5, 1910. Spain has treaties with Portugal as well as with Belgium, France and Italy, all four made in 1880 on the "most favored nation" basis; it has relations with the United States under treaties of 1895, 1898 (the peace treaty), and 1902, and as a "proclaimed" country since July 10, 1895; and has treaties also with Colombia (1885), Costa Rica (1893), Ecuador (1900), Guatemala (1893), Mexico (1903) and Salvador (1884), mostly on the "most favored nation" basis, and relations under the Montevideo convention with Argentina and Paraguay (1900). {Sidenote: Portugal} Portugal, under its civil code of 1867 and penal code of 1886, grants copyright for life and fifty years to its citizens and to foreigners whose countries grant reciprocal relations. The foreign author, to protect a translation of his work, which protection is for ten years only, must provide such translation within three years. Translations of non-copyright works by a native translator are protected for thirty years. Two copies must be deposited before publication at the Public Library, or in the case of dramatic and musical publication in the Royal Conservatory in Lisbon. Portugal as a republic acceded to the Berlin convention from March 29, 1911. It has additional relations with Italy (1906) and Spain on the "most favored nation" basis (1880); and reciprocal relations with the United States as a "proclaimed" country since July 20, 1893, and with Brazil (1889). {Sidenote: Italy} Italy grants copyright under its law of 1882,--codifying its original law of 1865 and the dramatic law of 1875,--as promulgated by royal decree September 19, 1882, to become effective in 1885, and its civil code of 1889. It assures full copyright for life or forty years, whichever the longer. After forty years from first publication or, if the author live beyond that date, after his death, a second term of forty years begins, in which any person, on duly declaring his intention, may republish a work, on condition of paying five per cent royalty to the copyright proprietor. The state may expropriate any work after the death of an author on paying to the proprietor a compensation named by three experts. Government and society publications are copyright only for twenty years. An author may reserve rights of translation for ten years. Playright is for eighty years. Three copies of the printed work should be deposited at the prefecture of the province within three months, in default of which, infringement previous to deposit cannot be punished; and if deposit is not made within ten years, the author is understood to waive his rights. With the deposit copy a declaration of reservation of rights should be filed, for publication in a semi-annual list in the official gazette. Notice is required to reserve rights in periodical contributions. A manuscript copy of an unpublished play should be submitted within three months from first performance for _visé_, which manuscript is then returned. By the law of 1910, as to legal deposit, three copies must be delivered to the _Procureur du Roi_ in the district of the printing establishment for transmission to the official libraries in Florence, Rome and the respective province; failure to make such deposit does not affect the copyright, but involves a fine. The laws, both of 1865 and 1882, extended copyright to foreign works, on relations of reciprocity, without treaty arrangements and without additional formalities. {Sidenote: Italian foreign relations} Italy was an original party to the Berne convention and accepted the Paris acts, but has yet to ratify the Berlin convention. It has treaties with Austria-Hungary (1890), Montenegro (1900), Portugal (1906), Roumania (1906), San Marino (1897); also special treaties with Spain (1880), France (1884), and Germany (1907), all on the "most favored nation" basis. It has had reciprocal relations with the United States as a "proclaimed" country since October 28, 1892, and has also treaties with Colombia (1892), with Cuba (1903) and Mexico (1890) on the "most favored nation" basis, and with Nicaragua (1906); and also under the Montevideo convention, relations with Argentina and Paraguay (1900). {Sidenote: San Marino} San Marino, the tiny state enclosed within Italy, has pledged itself by the copyright provisions in its treaty with Italy (1897) to protect all works protected in Italy, by application of the Italian law. {Sidenote: Monaco} Monaco, under laws of 1889 and 1896, provides copyright for life and fifty years with the peculiar provision that copyright on anonymous and pseudonymous works extends fifty years beyond the death of the publisher, who is reputed author. No formalities are required except notice of reservation in respect to articles in periodicals. Monaco acceded to the Berne convention, in 1889, accepted the Paris acts and ratified the Berlin convention without reservation, December 19, 1910. {Sidenote: Greece} Greece originally provided for copyright protection under its penal code of 1833, with a term of fifteen years subject to royal extension. By the law of 1867 the printer of a work was required to deposit with the National Library two copies within ten days of publication, failure involving a fine of at least ten drachmas, but not forfeiture of copyright; and to this requirement was added by the law of 1910 a third copy for the Library of Parliament and a fourth for the local public library, with authority to transmit through the post. A dramatic copyright law of 1909 specifically covers playright, making the term life and forty years and preventing modification of a play by an assignee. Greece has no international relations. {Sidenote: Montenegro} Montenegro, though it has no specific domestic copyright law, and only gives uncertain protection under its customary law and civil code of 1888, has treaties with France (1902) and Italy (1900). It had acceded to the Berne convention July 1, 1893, and accepted the Paris acts, but withdrew from the International Copyright Union April 1, 1900, "from motives of economy." {Sidenote: Roumania and other Balkan states} The Balkan states are led in copyright protection by Roumania, possibly owing to the influence of the literary queen "Carmen Sylva," which country, under the press law of 1862 and penal code of 1864, has protected copyright and playright, including probably translation, for life and ten years. Written registration is required at the Ministry of Instruction, and deposit of four copies was also required, though not on penalty of forfeiture of copyright. A later law, of 1904, repeals the deposit requirement. Roumania has copyright treaties with Belgium (1910), France (1907), these on the "most favored nation" basis, Austria (1908) and Italy (1906). Bulgaria and Servia seem to give no protection, except that accorded in Bulgaria by its penal code of 1896, and have no international relations. {Sidenote: Turkey} Turkey, which gave some protection to authors so far back as its penal code of 1857, passed in 1910 a new copyright code providing for books, drama and music a term of life and thirty years, in which last the children, widow or widower, the parents and the grandchildren or their descendants should benefit in equal shares; and for works of art, including architecture, a term of life and eighteen years. Posthumous works are protected from publication for the years above stated. Copyright includes right of translation, representation and adaptation; translations are protected, but the term extends only fifteen years after the death of the translator. The assignment of publishing right does not include playright unless specifically stated. Reprint of periodical articles, unless forbidden, and extracts from books "in case of urgency or to the end of public utility," may be made on acknowledgment of the source. Reprint of works out of print may be licensed by the Ministry of Public Instruction. Registration is requisite with deposit of three copies, in the case of reproduced works, with the Ministry of Public Instruction, at Constantinople, or in its provincial offices on written application and a fee of a quarter of a Turkish pound, for which a certificate is issued. An annual publication of the copyright entries is provided for. The law is not in terms confined to Turkish subjects, but it may by the nature of Turkish legislation apply only within the Turkish Empire, though there seems to be hope that Turkey may adhere to the Berlin convention. Turkey is otherwise without international relations. {Sidenote: Japan} Japan, the only oriental power which is a unionist country, adopted a general copyright code in 1899 (March 3, as applied by ordinances of June 27 and 28), modifying a law of 1877, and in the same year (July 15) ratified the Berne-Paris agreements and became a member of the International Copyright Union. Amendatory acts were adopted in 1910, on June 14-15, broadening the scope to include architecture and providing as to details of registration. Under domestic legislation first publication in Japan is the only requisite for copyright, but registration must be made in the Ministry of the Interior before action for infringement can be brought, and by disclosure of name to obtain the full term for anonymous and pseudonymous works. Registrations are printed in the official gazette. Protection is for life and thirty years, or thirty years for anonymous, posthumous and corporate works. The right of translation is protected for ten years, and translations are protected for the full term; photographs for ten years only. Titles are protected in copyrighted works, but not general titles. Periodical contributions must be protected by notice. Japan accepted the convention of Berlin with reservations as to the exclusive right of translation, in which it adheres to Article V of the Berne convention as revised at Paris, and as to the public performance of musical works, in which it adheres to Article IX of the Berne convention. Japan has treaties with China (1903) and with the United States (November 10, 1905, "proclaimed" May 17, 1906), which, however, excepts translations, and also special treaties of August 11, 1908, covering Japanese protectorates in Korea and China. {Sidenote: Korea} Korea was formerly without copyright provisions, except as given by the above-named treaty and similar British provisions as to the consular court at Seoul, but since it has become practically a Japanese possession, it has been included by Japanese ordinance of 1908 under Japanese copyright law. {Sidenote: China} China promulgated, December 18, 1910, its first domestic copyright provisions, establishing a term of life and thirty years, on condition of registration by deposit of two copies at the Ministry of the Interior or corresponding provincial office, with a fee of five dollars. The protection does not include the exclusive right to translate foreign works into the Chinese language, although individual translations may be protected. Photographs, unless included in writings, are protected only for ten years from date of registration. These provisions require approval to be made effective. China has a treaty with Japan (1903) and one of like date (October 8, 1903) with the United States, effective from January 13, 1904, protecting for ten years books, maps, prints, or engravings, "especially prepared for the use and education of the Chinese people" or "translation into Chinese of any book," but Chinese subjects are to have liberty to make "original translations into Chinese," so that the treaty affords little protection. By treaty with Japan (August 11, 1908) Japan's copyright protection is extended where it has extraterritorial jurisdiction, as in Canton and other places in China. By British Orders in Council of 1899, 1907, copyright protection against infringement by a British subject may be afforded by the consular court at Shanghai to foreign as well as British suitors under specified conditions. {Sidenote: Siam} Siam passed a literary copyright law in 1901, giving identical rights with those in any other property for life and seven years, or for forty-two years, whichever the longer, on the conditions of printing and publication within the country, registration within a year and deposit of four copies. Siam has no treaty relations, but works printed and first published there possibly would have the benefit of the law. British copyright protection is also extended through British consulates. {Sidenote: Asia otherwise} Persia and other native-governed countries seem to have no copyright protection, although Persia was represented at the Berlin conference. Copyright provisions in British India, Ceylon and the other Asian colonies is covered in the preceding chapter on the British dominions. The Dutch East Indies have copyright protection under Dutch law, and Indo-China under French law. The Philippine Islands, like the Sandwich Islands (Hawaii), have copyright protection under United States law. {Sidenote: Tunis, etc.} Tunis, a protectorate of France but not a French colony, long the only unionist country in Africa, has domestic protection under its law of 1889, following in general that of France, with a term of life and fifty years. It was one of the original parties, as a separate power, to the treaty of Berne, accepted the Paris acts and ratified the Berlin convention with reservation, September 30, 1910, like France, as to works of applied design, in which it adheres to the stipulations of the previous convention; it has no other foreign relations. Algiers, a French colony, is under French law and international relations. Morocco and other native states seem to be without copyright protection. {Sidenote: Egypt} Egypt, under the protectorate of Great Britain but not a British possession technically, is without domestic legislation, except that its penal code of 1884-89 forbids piracy, and it is not included under British relations. But under a crude sort of customary law and this penal code, the courts enforce rights of foreigners as well as of natives by the protection of their works for an indefinite term. The rights of French citizens in plays and music have been enforced through the French consular court, and in recent years the mixed courts at Cairo and the Court of Appeal have exercised copyright jurisdiction, "under the principles of natural justice and the laws of equity." In the leading case of the Société des gens de lettres _v._ Egyptian Gazette, in 1889, the Court of Appeal laid down the principle that "copyright is a veritable right of property founded on labor," and on this ground has upheld the right of literary, dramatic and musical authors and of artists to prevent reproduction. {Sidenote: Liberia} Liberia seems to have no domestic copyright law recorded, and probably protection, national and international, is under customary law without formalities. It was represented as an independent power at the Berne convention and signed the original convention, but never became a party to it by ratification; it, however, adopted the Berlin convention by ratification and is now a member of the International Copyright Union. {Sidenote: Africa otherwise} The Congo Free State seems to cover copyright offenses by its extradition treaties with Belgium (1898) and France (1899) to the extent of including in the list of offenses fraudulent application to any art object or work of literature or music, of the name of an author, or any distinctive sign adopted by him. Copyright provision in South Africa, Sierra Leone and other British colonies is covered in the preceding chapter on the British dominions. {Sidenote: Latin America} In Latin America provision for copyright protection had generally been made by the several states, for various terms, in some cases in perpetuity, previous to a movement for international relationship which began with the Montevideo convention of 1889, for South American states only, reached a further step in the convention of Mexico City, 1902, was not substantially advanced by the amendatory treaty proposed at Rio de Janeiro, 1906, which never became practically operative anywhere, and culminated in the Buenos Aires convention of 1910, which was ratified by the United States Senate February 16, 1911, but has yet to be ratified by the Latin countries. Five South American states are bound together under the Montevideo convention as ratified by Argentina (1894), Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892). The United States has relations with Mexico (1896), Costa Rica (1899), Cuba (1903), Chile (1896), and by ratification in 1908 of the Mexico convention of 1902, with Costa Rica, Guatemala, Honduras, Nicaragua, Salvador and possibly Dominican Republic, and will come into relations under the Buenos Aires convention of 1910, with any power ratifying that convention. {Sidenote: Mexico} Mexico, under the guarantees of property in its constitution of 1857, and the specific and elaborate copyright provisions of its civil code of 1871, as modified by that of 1884, grants copyright in perpetuity and playright for life and thirty years as the general term, with complicated modifications and exceptions. In the case of anonymous and pseudonymous works, rights in perpetuity are to the publisher and his successors, pending disclosure of the author, who must record his name in a sealed envelope. The right of translation is protected in perpetuity except for works of non-residents published abroad, then limited to ten years. Corporate works are protected for twenty-five and official publications for ten years only. Registration is required through application to the Minister of Public Education and deposit of two copies is obligatory, one in the National Library and one in the Public Archives. A third copy is usually expected for the Library of the Ministry. The right to copyright holds for ten years from publication. Reservation is required of right of translation and of other specified rights, by notice on the printed work. Protection is conditioned on residence, reciprocity or first publication within Mexico. Private letters may not be published without consent of both correspondents or their heirs, except for proof of right or in the public interest, or for the progress of science. Mexico does not seem to be a party to any convention, not even that of Mexico City, but has had reciprocal relations with the United States as a "proclaimed" country since February 27, 1896, and has treaties with the Dominican Republic (1890) and Ecuador (1888), and with Belgium (1895), France (1886), Italy (1890), and Spain (1903), all on the "most favored nation" basis. To obtain Mexican copyright, it seems necessary to execute a power of attorney, validated by a Mexican consul, to a representative in Mexico City for the registration and deposit at the Ministry. {Sidenote: Central American states: Costa Rica} {Sidenote: Guatemala} {Sidenote: Honduras} {Sidenote: Nicaragua} {Sidenote: Salvador} Of the five nations of Central America, Costa Rica, under penal and civil codes of 1880 and 1888 and a copyright law of 1896, grants copyright, including playright, for life and fifty years, with provisions for return to heirs after twenty years and other variations after the Spanish model, on registration and deposit within a year of three copies of a printed work at the office of Public Libraries, on condition of residence or reciprocity. Guatemala, under a decree of 1879, grants copyright for literary works in perpetuity on registration and deposit of four copies at the Ministry of Public Education to "inhabitants of the Republic,"--with the curious provision that an assignee cannot prevent republication with "essential modifications" by the author. Right of translation must be reserved by notice. A sealed envelope with name of author must accompany an anonymous book. Honduras, under its constitution of 1894, has provisions in its civil and penal codes of 1898 guaranteeing to an author of a literary, scientific or artistic work the general property rights, pending passage of a copyright law and punishing fraud by "minor banishment." Nicaragua, under its civil code of 1904, grants copyright in perpetuity on registration and deposit of six copies with the Ministry of Agriculture. Right of translation must be reserved by notice. Salvador, under its constitution of 1886 and law of 1900, grants copyright on works published in Salvador for life and twenty-five years, or for corporate works fifty years from publication on deposit of one copy with the Minister of Agriculture before publication, with the exceptional provision that if the heirs renounce their rights or fail to make use of them within a year from the author's death, the work falls into the public domain; the translator of a Latin or Greek work is protected as an author, and the government may grant five-year licenses for the reprint with author's permission of "interesting works," presumably those published elsewhere. {Sidenote: Interstate and international relations} In 1894-95, and again in 1897-1901, interstate treaties, incidentally covering copyright, were negotiated; but interstate and international relations are now covered by the participation of the five nations, as well as the United States and the Dominican Republic, in the Mexico convention of 1902 and by the treaty of peace made by these five Central American states at Washington, December 20, 1907. There is some question under the treaty of 1907 whether protection is assured in each state to others than residents, but probably all citizens of the five states are protected throughout all. To secure protection under the convention of 1902, an American citizen should apply for an additional certificate from the U. S. Copyright Office for each country, which after validation by the State Department is sent with one deposit copy for each country to the respective American legations, through which official acknowledgment will be returned. Costa Rica has had reciprocal relations with the United States as a "proclaimed" country since October 19, 1899, and has treaties with France (1896) and Spain (1893); Guatemala with France (1895) and Spain (1893), the latter on the "most favored nation" basis; Nicaragua with Italy (1906); and Salvador with France (1880) and Spain (1884). {Sidenote: Panama} Panama grants copyright under the constitution of 1904, which adopted and made part of Panamanian law the Colombian copyright law of 1886, which is summarized in the paragraph on Colombia. The Canal Zone is under United States law through a War Department order of 1907. {Sidenote: Cuba} Cuba, which as a Spanish colony came under the Spanish act of 1879, has domestic protection under this act as applied by four military ordinances, 1900-1902, during the United States protectorate, and continued under its insular government. In the third ordinance, of June 13, 1901, it was provided that existing copyrights under the Spanish law of 1879 should be valid during their term, and also that copyright as well as patents granted by the United States shall have insular protection on deposit of a copy of the certificate. Registration is made at the Registry in the Department of State within one year of publication, accompanied, if a foreign work, by certificate of copyright in the country of origin, and deposit should be made of three copies for preservation in the National Library, the University and the Public Archives. On these conditions, under the military ordinance of 1900, authors of foreign scientific, artistic and literary works or their agents or representatives enjoy protection in the case of new works. Regulations of 1909 prescribe the forms of application for domestic and for foreign works. To claim Cuban copyright, an American should obtain an attested copy of the copyright certificate and transmit this, with a power of attorney in Spanish validated by a Cuban consul, and three deposit copies, to a representative in Havana, who must deposit the certificate with an attested Spanish translation and the three copies at the Registry. Copyrights by Spanish subjects previous to the treaty of peace with the United States, ratified in 1899, remain valid by virtue of a specific article in the treaty. Cuba has been in reciprocal relations with the United States as a "proclaimed" country since November 17, 1903, and has a treaty with Italy (1903) on the "most favored nation" basis. It is reputed to have ratified the Pan American convention of 1902, but possibly only the industrial treaty. {Sidenote: Haiti} Haiti, which gave copyright protection as early as 1835, adopted in 1885 a copyright law with some unusual features. An author holds exclusive right during life; the widow through her life; the children for twenty years further, or other heirs, if there are no children surviving, for ten years. Unauthorized reprints are confiscated on the complaint of the proprietor of the copyright; and the author recovers from the reprinter the price of a thousand, or from a bookseller of two hundred copies, reckoned at the retail price of the author's edition. Deposit is required of five copies within twelve months from publication at the Department of the Interior. Haiti has the unique distinction in Latin America of being a unionist country; it was originally a party to the Berne convention, accepted the Paris acts and adopted the Berlin convention without reservation. It has no relations with the United States and no treaties. {Sidenote: Dominican Republic} The Dominican Republic provides copyright protection under its constitution of 1896, has a treaty with Mexico (1890) on the "most favored nation" basis, and ratified the Pan American convention (though possibly only the industrial treaty) of 1902, June 15, 1907. {Sidenote: West Indian Colonies} Jamaica and the other British islands and colonies along the Atlantic and Caribbean seas have copyright protection under imperial and to some extent local laws, as already noted; Porto Rico is under the provisions of United States law and the Danish and Dutch West Indian colonies are under the respective laws of their nations. {Sidenote: Brazil} Brazil, under the constitution of 1891 and the law of 1898 and regulations of 1901, grants copyright for the general term, inclusive of photographs, of fifty years from the first of January of the year of publication, with a term of ten years for the right of translation and playright. Posthumous works are protected within fifty years from the death of the author. Assignments are valid only for thirty years, after which copyright reverts to the author. Written application for registration is requisite at the National Library, and deposit of one copy of a printed book or play must be made there within two years. Reservation of royalty for playright must be made on a printed work. Protection is confined to a native or resident or a Portuguese author of a work written in Portuguese--the latter in accordance with a treaty of reciprocity with Portugal (1889), the only treaty. {Sidenote: Argentina} Argentina, which under its constitution of 1853 and civil code of 1869 protected an author's productions as general property, adopted in September, 1910, a copyright law, as an application of common law, providing for a term of life and ten years, or in the case of posthumous works twenty years from publication. Protection is comprehensive of all classes of intellectual property, and extends to all forms of use without special reservation. By Presidential decree of February 4, 1911, a Section of Library deposit was established as a division of the National Library. Registration is required by deposit of two printed copies or of an identifying reproduction within fifteen days from publication for works published in the capital, or thirty days in the provinces, this including foreign works published within the country, publication meaning the offering for sale therein. The law specifically applies to authors of other countries with which Argentina has international relations, deposit in Buenos Aires being then not required where the formalities of the country of origin have been fulfilled. Argentina's international relations are dependent chiefly on the Montevideo convention of 1889, as ratified by Argentina with respect to Paraguay, Peru and Uruguay in 1894, Bolivia in 1903, and with respect to Belgium in 1903, France in 1896, Italy and Spain in 1900. {Sidenote: Paraguay and Uruguay} Paraguay and Uruguay, like Argentina, long protected intellectual property as general property. Paraguay's constitution of 1870 secures exclusive property to an author, and a new penal code, promulgated in 1910, assures copyright on all classes of intellectual property, on registration in the public registries with prescribed fees, and punishes piracy by fine of double the profit and imprisonment. Uruguay in its civil code of 1868 declared that the productions of talent or intellect are the property of their authors, to be regulated by special law, but no such law has been passed. Both countries have relations with the other South American states parties to the Montevideo convention of 1889; Paraguay has also the same relations as Argentina with the European countries above cited. The statement that Paraguay is a party to the Mexico City convention of 1902 seems a misapprehension arising from the fact that her representative signed _ad referendum_. {Sidenote: Chile} Chile, under the constitution of 1833 and law of 1834 and its civil code of 1855 and penal code of 1874, protects copyright including playright for a general term of life and five years thereafter, which may be extended an additional five years, except for playright, by action of the government, corporate works for forty and posthumous works for ten years. Deposit of three copies is required at the National Library in Santiago. Protection is extended to foreign works [first?] published in Chile; a Chilean-made edition of a work already published abroad may have protection for ten years. Chile has reciprocal relations with the United States as a "proclaimed" country since May 25, 1896; by a provision in the treaty respecting parcels post, piratical copies of works copyright in the country of destination are to be excluded. Chile ratified only the ineffective Rio convention of 1906. {Sidenote: Peru} Peru, under its law of 1849 and the constitution of 1860 and penal code, grants copyright including playright for life and twenty years thereafter. Anonymous and pseudonymous works may be protected for the full term by deposit of the true name in a sealed envelope. Posthumous works are protected for thirty years. Deposit is required of one copy in the public library and one copy in the department Prefecture. Protection is probably confined to an inhabitant of Peru, but Peru has reciprocal relations under the Montevideo convention as ratified October 25, 1889, with Argentina, Bolivia, Paraguay and Uruguay. {Sidenote: Bolivia} Bolivia, which protected intellectual property by its penal code of 1834, and later by a copyright law of 1879, adopted a brief copyright code, including playright, in 1909, providing a general term of life and thirty years, with the peculiar provision that the publisher of a work of unrecognized authorship hitherto unpublished may have protection for twenty years. Registration is required at the Ministry of Public Education and deposit of one copy of printed works must be made within one year of publication in the public libraries, in default of which the work falls into the public domain. Bolivia has reciprocal relations under the Montevideo convention as ratified November 5, 1903, with Argentina, Paraguay, Peru and Uruguay, and also international arrangements with France (1887). {Sidenote: Ecuador} Ecuador, under the constitution of 1884 and law of 1887, grants copyright for life and fifty years, and playright for life and twenty-five years. Anonymous and pseudonymous works are protected fifty years beyond the death of the publisher, unless the author meantime substitutes his name; posthumous works for twenty-five years. There are special provisions for terms of fifty years in the case of translations, adaptations, compilations, etc., and for twenty-five years for editions of works of undefined authorship. Registration is required with notice of reservation of playright within six months from publication or three months from performance of an unpublished play. Three copies of a printed work must be deposited with the registrar for the use of the Minister of Public Education, the National Library and the provincial library. Titles of periodicals are specified as copyrightable. Assignment must be registered to become operative. Protection is seemingly confined to a citizen of Ecuador, but it is expressly provided that a foreign author may assign right of translation or playright to a citizen of Ecuador, who may then prevent infringement. Ecuador has reciprocal relations with Mexico (1888), as also with France (1898, 1905) and Spain (1900), all on the "most favored nation" basis. {Sidenote: Colombia} Colombia, under the Constitution and law of 1886, and the civil code of 1873 and penal code of 1890, protects copyright, including playright, for life and eighty years, and for the legal existence of a corporate body, with the provision as in Spain respecting natural heirs. Registration is required within a year from publication or performance, at the Ministry of Public Education, with deposit of three copies, one for the Ministry and two for the National Library. If a work is not registered within the year, it falls into the public domain for ten years, but can thereafter be protected by registration within the succeeding year. Non-Colombian authors seem not to enjoy protection of the right of translation for a work printed in a country of foreign language. Colombia has treaties with Spain (1885) on the "most favored nation" basis, Italy (1892) and Switzerland (1908). {Sidenote: Venezuela} Venezuela, under the law of 1894 and penal code of 1897, protects copyright including playright in perpetuity, the publisher being considered the author in the case of anonymous and pseudonymous works pending legal proof of the identity of the author. In posthumous works protection is in perpetuity to the heirs or assigns. The right is secured by request to the district governor or state president for the issue of a patent with registry of title and verbal oath that the work has not been previously published within Venezuela or elsewhere; the patent certificate must be printed on the back of the title-page, and must be published at least four times in the official gazette. Deposit must be made of six copies at the Registry, two copies going to the Minister of Agriculture for the National Library. Protection is not specifically confined to Venezuelans, and seems to depend on first publication, but assignment to a citizen of Venezuela may be desirable. Venezuela has no foreign relations. XXII BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER {Sidenote: Copyrights in their business relations} Business relations, founded on copyright, are chiefly those between author and publisher. These relations involve questions, not so much of copyright law in itself, as of the law of contract and other statutory and common law provisions. There has been more or less desire on the part of authors to include business relations within copyright statutes, and in fact the recommendations of the American (Authors) Copyright League to the initial copyright conference of 1905 covered several points of business law, as for instance the right of an author to recover possession of his work from the publisher in case the publisher failed to keep it in print, or the right to prevent assignment of publication rights to a publisher unsatisfactory to the author. It was, however, determined, both in the conferences and by the Congressional Committees, to omit as far as practicable from the copyright law all questions of business relationship, and to leave these to specific contracts between author and publisher or to the general provisions of law. The law, whether as to copyright or other matters, should afford a basis of certainty for business, but it cannot wisely interfere with freedom of contract between the parties to a business transaction. {Sidenote: The German publishing law of 1901} {Sidenote: Editions} {Sidenote: Alterations} American and English statutes accordingly make no special regulation of the calling of publisher. Provision is, however, made in some continental countries for the regulation of publishing and publishers, as in Germany, where a law of June 19, 1901, passed coincidently with the general copyright code, covers this field in remarkable detail. It provides that the author, during the continuance of the publishing contract within the copyright period, may not reproduce or distribute the work otherwise than through the publisher, except in translation, dramatization (or if a play, novelization) or elaboration of a musical work which is not merely a transposition or arrangement. The author is privileged to include his work in a collected edition twenty years after publication, or an article from a collective work after one year; and the publisher may not republish in such form under the contract. Unless otherwise specified, the publisher is entitled to print only one edition, if undefined one thousand copies, in addition to extra copies for replacing damaged copies and not more than five per cent free copies; destroyed copies may be replaced on notice to author. Opportunity for revision must be afforded to the author in new editions. Alterations are permitted to the author before reproduction and at his expense during the progress of the work, but he cannot be charged for alterations necessitated by new circumstances. The publisher may not make alterations or abbreviation of text or title, except those to which the author cannot fairly refuse consent. {Sidenote: Issuance of work} The publisher must issue the work in suitable form in accordance with the customs of the trade and the character of the book, and immediately after receipt of the complete work or completed separate part. The publisher must take measures to keep the book in stock. He is not bound to produce a new edition, but if on request from the author he fails to do so, the publishing right reverts to the author. The publisher may cancel the contract, if the purpose of a work no longer exists, on payment of remuneration to the author. Proof for correction must be furnished to the author. {Sidenote: Price and remuneration} The publisher may fix and reasonably reduce the price, but can raise it only with consent of the author. If remuneration is not specified, an equitable payment is required, and the remuneration is due on the delivery or on the appearance of the work, or if determined by sale, then yearly, with opportunity to the author to verify the account from the publisher's books. The author is entitled to free copies to the extent of one per cent of the edition, but not less than five nor more than fifteen, and to additional copies at the lowest trade price. The author is entitled to return of his manuscript after reproduction, if stipulated at the beginning. {Sidenote: Assignment} The publisher may assign, in the absence of agreement, but not for separate works; though for this last, consent cannot unreasonably be withheld and may be presumed if the author does not reply within two months to a demand; and the assignee becomes, jointly with the original publisher, liable to the author for future performance of the contract. When a contract is completed by the issue of specified editions or copies, the publisher is bound to notify the author, and if the contract is for a definite time, the publisher is not entitled to distribute remaining copies after that time. In case of delay in the contracted delivery of the work, the publisher, after a reasonable extension of time, may decline the work, unless delay involves only insignificant loss; and in case the work is not of stipulated quality, the publisher may also cancel the contract or require damages for non-fulfillment. The author has analogous rights as against the publisher. {Sidenote: Accidental destruction} {Sidenote: Delivery} If the work is accidentally destroyed after delivery to the publisher, the author is entitled to remuneration, but the contract terminates; but the author must, if practicable, rewrite it for additional remuneration or may reproduce it gratuitously and require publication. Like rights may be enforced by either party in case of destruction for which the other is responsible. Delivery is implied when the publisher is placed in position to accept the work. If the author dies after delivery of part of his work, the publisher may maintain his rights in the part delivered on specified notice to heirs; and if the author is absolutely prevented from completing his work, the publisher has like right to the portion already prepared. The author may withdraw from his contract before reproduction of his work or a new edition is begun, if justified by unforeseen circumstances, on remuneration of publisher's expenses; but if he publishes elsewhere within a year, he must also pay damages for non-fulfillment of contract to the original publisher, unless the latter has declined to resume the contract. {Sidenote: Bankruptcy of publisher} {Sidenote: Non-copyright work} The relations of a publisher in case of bankruptcy are specifically treated, and the regulations of the civil code and general legal principles are specifically applied to cancellation of publishing contracts. On a non-copyright work, an author must not conceal from the publisher that he cannot transfer exclusive right of publication; but the author must act toward the publisher as though the work were copyrighted, at least until six months after publication. {Sidenote: Articles in periodicals} The law is made applicable to articles in periodicals or portions of collective works. An article in a newspaper is at the disposal of the author immediately after publication; an article in other periodicals after one year, unless exclusive continuing right has been sold to the publisher. A publisher is free to make usual alterations in an unsigned article. The author of an article may cancel his contract and obtain remuneration in case it is not published within a year after delivery, but damages can be claimed only in case a time of publication has been named by the publisher. The author of a newspaper article has no claim to free copies or special terms. In the case of a work planned by the publisher, or a collaborative, supplementary or collective work commissioned by the publisher, the publisher is not bound to reproduce and distribute the work. The law is made applicable in case the contract with the publisher is made by another than the author. Appeal is authorized to the Supreme Court of the Empire. It is impracticable to cite all the details of this extraordinarily detailed law, but the provisions summarized afford a remarkable conspectus of German practice on business questions possibly arising between author and publisher, useful in relation to American and English practice. {Sidenote: The publisher as merchant} {Sidenote: "Outright" transfer} The publisher is the merchant for the author, and the remuneration which he can pay to the author is limited by the price and sale which he can obtain from the book-buying public. The relation between author and publisher should be, as previously emphasized, most fully, clearly and specifically set forth in the initial contract. "Agreements between author and publishers," said Vice Chancellor Page Wood in 1857 in Reade _v._ Bentley, "assume a variety of forms. Some are so clear and explicit that no doubt can arise upon them. Thus, where an author assigns his copyright, the transaction is one which every person understands, and which leaves no room for uncertainty as to the rights of the parties." The work may indeed be transferred "outright" without written contract, by the delivery of the manuscript and payment of a bargained sum, in which case the publisher becomes the proprietor and may take out the copyright in his own name or that of the author, can assign the work and treat it entirely as though his own, except that he cannot alter it to the detriment of the author's reputation. But even in "outright" sale, a specific contract is desirable and is indeed necessary if the author is to agree with the publisher to apply for renewal and include the added period in the term. {Sidenote: "Joint adventure"} More usually, the contract between author and publisher is on the basis of a specified royalty--usual in America, or "half profits,"--more common in England, in which case the relation is not that of partnership but of a "joint adventure" terminable on notice unless it is made for a stated time, or for one or more editions, of a specified number of copies, or under other limiting conditions. In such case the expenses of publication may be borne by the publisher, or the author may pay for the plates or for the edition, and receive correspondingly larger return. Unless there is actual or constructive partnership, the publisher, and not the author, is liable for paper, printing, and like accounts. Or the publisher may be simply the agent of the author in manufacturing his book and selling for a stated commission. A contract of publication usually implies exclusive right, but an author may contract with several publishers under a license agreement; and on the compulsory license system, often miscalled the "royalty plan," he must permit any publisher, who will pay him the license royalty, to issue the work. {Sidenote: Risk and profit} It is by means of the profit on successful books that the publisher is able to take risks with new books and new authors. It has been said that of five books, three fail, one covers its cost, the fifth must pay a profit to cover the rest. The element of risk in the book business is, in fact, very large; if the author complains that his successful book ought not to pay for others' unsuccessful books, he can get over the difficulty by taking the risk himself. {Sidenote: Long price and "net" price} {Sidenote: Equities} The publisher usually sells to the public through the retail trade at a stated retail price, which may be either long price, in which case the high price and large trade discount permit a discount to the public, or "net" price, a lower price with less discount, which the bookseller is expected to maintain. The practice of issuing books at "net" price is growing, in the belief that through this policy larger sales are made and the publisher's gains and the author's royalties fairly balance. On the average, the publisher probably gets less per volume than the author, and the system is essentially on an equitable basis. The publisher's larger returns come from the fact that he handles more books than any one author writes. The publisher has usually, in bargaining with the author, the advantage of larger experience and superior business ability, and of the fact that the author seeks him rather than he the author; but no law can better the author in these respects. As a matter of practice, the better publishing houses treat with new authors on the same basis as with old, through a standard form of contract. {Sidenote: The literary agent} The author sometimes employs the "literary agent" as an intermediary in finding a publisher, especially for a first book, and in making arrangements with the publisher, for which the agent expects a stated payment or a proportion of the author's returns. The advantages of such intermediaries are offset by many disadvantages, and the best publishing houses treat an author as liberally and fairly in direct as through intermediate relations. In any event, the contract should be made and signed directly between author and publisher, as a third-party contract, or a double contract between author and agent and agent and publisher, presents serious complication in the event of future differences. The agent should not be given any lien on future works by the author. The literary agent cannot accept conditions or make sale beyond the authority given him by the author, and an innocent publisher may be held responsible for acts beyond that authority, as in the English case of Heinemann _v._ Smart Set Pub. Co., in 1909, where the defendants had bought "serial rights" with leave to condense into one number, which the agent had no authority to grant. {Sidenote: Usual American contract} In the publishing contract usual in America, the author "grants and assigns" to the publishers the stated work, undertaking either to copyright it himself or authorizing the publishers to enter copyright in their name, or as his attorneys in his name. The contract usually includes all translations, abridgments, selections, dramatizations, etc., or specifically reserves those to the author, the publishers in the first case agreeing to share profits or otherwise remunerate the author on such special forms. The author is expected to guarantee that he is sole owner of the work and has full power to make the grant, that the work is not a violation of any other copyright and that it is free from scandalous or libelous matter. {Sidenote: Publishers' obligations} The publishers undertake to publish the work in such style as they deem best suited to its sale, at their own expense, unless the author contracts to pay for the plates or for other publishing costs, and usually agree to account for sales semi-yearly or yearly and to make payments within four months thereafter. The royalty is usually based on the trade-list (retail) price, on the cloth or ordinary binding, or the style of binding in which the largest number of copies shall have been sold. It is frequently stipulated that on paper-bound copies, or editions or copies for schools or subscription sale, or a foreign market, or otherwise sold at a reduced price, the royalty shall be reduced, and that on press and other free copies no royalty shall be paid. When an author pays the cost of the edition or pays for making the plates, he may contract to pay a commission to the publisher and obtain the balance for himself, or he may contract for a larger percentage of return to him than the usual royalty percentage. The publishers are usually authorized to permit the printing of selections and to arrange for translations, etc., subject to the arrangement indicated above. The author is expected to pay for alterations either in full or above a stated sum, as fifty dollars, and to provide any index or like equipment if required. {Sidenote: Reversion of contract} Insurance is not usually required from the publishers, but in case of fire or loss, the publishers have the option of reproducing the work, and if they decline to do so, the contract usually provides for reconveyance of the copyright to the author and the termination of the agreement after the sale of copies remaining on hand. A publishing contract sometimes provides that after a specified time from date of publication, as two or five years, if the publishers consider that the public demand does not justify continuing publication, or for other reasons, they may offer to surrender their publishing rights on compensation for the plates, as at half cost, and remaining copies, as at cost, and if the author does not elect to accept this offer, then the publishers may sell copies on hand free from royalty and terminate the agreement, the copyright reverting to the author. The publishers are usually authorized, in their discretion, to protect the copyright by legal proceedings at their expense or at joint expense of publishers and author. {Sidenote: Scope of contract} The contract may be for the full term of copyright, with or without obligation on the part of the author to provide for renewal, or for a stated number of years and thereafter until terminated on stated notice, or it may be for a specified number of editions or copies. It is often stipulated that on discontinuance, the author shall have the right to take over the plates at cost or half cost and remaining copies at cost, in default of which the publishers may sell copies free of royalty,--but not continue to use the plates. If the book contains illustrations not made originally for the work, the contract may provide that electrotypes of them shall be transferred to the author for use solely in connection with the work in case of reversion of the copyright to him. The contract is usually drawn subject to assignment by either party, but only as a whole; but the author may require that the work shall not be transferred, to another publisher or otherwise, without his consent. {Sidenote: Other works of author} The contract may also reserve to the author a right to discontinue the agreement in case the publishers elect not to publish other works, which he may offer to them, or it may bind the author to offer subsequent works to the same publishers. This keeps in view the ultimate publication of a uniform collected edition of the author's works, which may also be covered by a provision giving the author right to include his work in a collected edition after a stated time. {Sidenote: Standard contract} The above summary gives the pith of a standard form of contract which has been adopted, in more or less detail, by many American publishers, and is usually kept in printed form by them. Owing to the careful specifications in the American type of contract, there are fewer cases in the American than in the English court records referring to the relation between authors and publishers; and the English "half profits" custom naturally leaves many more open questions of law and equity. {Sidenote: Serial rights} Where there are serial rights to be considered, as in the case of a novel, the agreement between author and publisher should be very clear. If an author contracts for a serial with periodical publishers who are also book publishers, that contract should state whether rights for book publication are involved or whether the author is left free to arrange for book publication independently. Conversely, where an author contracts for book publication, the contract should be explicit as to whether the author or the publishers shall exercise or arrange for serial publication, either before or after book publication. {Sidenote: Republication of periodical articles} Where an author furnishes an article or series of articles for a periodical, it should be made clear, by letter or contract, whether the periodical publisher also obtains the right to republish such articles in other shape or whether such right reverts to the author, and if so, how soon after publication of the periodical. {Sidenote: Foreign markets} In these days of increasing international relations, it is important that the author should have a clear understanding as to whether he retains the rights in other markets, whether in English speaking or foreign countries; or conveys them to the publishers as within the agreement, but to be separately accounted for; or assigns them as an integral part of the transaction. As between America and England, many publishing firms have branch houses or representatives in the other country or are in special relations with an independent firm therein. If the English market is conveyed, there should be a clear-cut understanding as to whether this includes the Canadian, Australian and South African rights. It is usual that a lower royalty is paid to the author on sheets sold for another than the home market. {Sidenote: Contract to do work} The contract of an author with a publisher that he _will_ write a specified book or work, is not usually enforceable by the courts through specific performance, for the simple reason that a court has no means of compelling an author to use his brain for a certain purpose, and the remedy against the author in this event is rather a suit for loss by failure to perform the contract, which loss is difficult to prove. If any remedy is to be provided, it should be stated in the contract as a specified penalty to be paid by the author,--a provision seldom included in publishing contracts. That an author may be held liable for a breach of contract if he declined without good cause to complete a work already partly delivered, was indicated in the early English case of Gale _v._ Leckie in 1817. An agreement to write a book may stand as an equitable assignment on the completion of the book, as was held in Ward, Lock & Co. _v._ Long, in 1906 in the Chancery Division by Justice Kekewich. {Sidenote: Contract not to write} An author who has contracted not to write on a stated subject or for other publishers, may be enjoined from such act. This was decided by early English precedents, as when in the case of Morris _v._ Colman, in 1812, Lord Chancellor Eldon held that Colman, in virtue of his contract to write plays for the Haymarket Theatre and for no other, could be restrained from furnishing plays to another theatre, though he could not be compelled to write plays; the same judge, in Clarke _v._ Price, held in 1819 that he could neither compel Price to continue to furnish Exchequer reports to the plaintiff publisher nor restrain him from furnishing such reports to another publisher, because the contract contained no specific provision to the latter effect. It is probable that the undertaking of an author not to prejudice the sale of his book by writing another of like subject, though under a different title, may be enforced even against a succeeding publisher who had no knowledge of that undertaking, as was indicated in Barfield _v._ Nicholson in 1824. Thus publishers were granted equitable relief against an author who had sold to other publishers modifications of an arithmetical series of which the copyright had been sold to the plaintiffs, in Wooster _v._ Crane in the U. S. Circuit Court of Appeals, in 1906. In Brooke _v._ Chitty, however, in 1831, Lord Brougham declined to restrain Chitty from writing a certain book, on the ground that the court could not act until there was actual printing and publication. The publisher, _vice versa_, cannot be restrained from publishing a rival work, even though it competes directly with a work already published or contracted for, unless that is distinctly forbidden in the contract with the first author. {Sidenote: Implied obligations} If a publisher prints without special agreement a manuscript submitted for approval, the courts will enforce reasonable payment; and in 1893, in Macdonald _v._ National Review, in an English county court, it was held that printer's proof sent by the publisher to the author, implied acceptance for publication. That the publisher may be held responsible for loss of a manuscript by the negligence of his employees, was held in Stone _v._ Long, in the King's Bench Division, by Master Chitty in 1903. An implied obligation to publish an accepted work was recognized in the Canadian case of Le Sueur v. Morang, where the Canadian Supreme Court affirmed in 1911 the decision that if a publisher withholds from publication a work of which he had bought the copyright "outright," the author might claim the work on return of the purchase money. {Sidenote: Contract personal and mutual} The contract between author and publisher is of a personal nature and therefore not assignable, in the absence of specific provision, except with consent of the other party. As it is with a particular author that a publisher contracts for a book, so an author contracts with a publisher of his choice and cannot be required to accept another. This is especially true where, on a profit-sharing or royalty arrangement, the author relies on the skill of the publisher for his market. Where E. V. Lucas had arranged with Grant Richards to publish a work on half profit, it was held in the Chancery Division in 1905 by Justice Warrington in a suit against the publishers' trustee in bankruptcy, that the contract was terminated by bankruptcy and that Mr. Lucas on fair purchase of the remaining copies, might contract with another publisher. There is more question when the contract is for a specified sum; and where the copyright is assigned by outright purchase the rule would not hold good, for the publisher then becomes the copyright proprietor. But even when a publisher has bought a copyright "outright," he may not do the author the wrong of printing the work in such altered shape as to injure the author's reputation, as was held in 1832 in the English case of Archbold _v._ Sweet, where a third edition of Archbold's legal work printed "with very considerable additions," which the plaintiff showed to contain gross blunders, was enjoined. But when work is done, to be published under the name of another, the actual writer may not prevent alteration by the employer, as was decided in Cox _v._ Cox in 1853, by the Vice Chancellor. Such a personal contract cannot be transferred as a bankruptcy asset, and on the bankruptcy of the publisher the rights revert to the author, except that stock on hand may perhaps be sold to another, who may not, however, distribute it to the disadvantage of the author. The personal contract involves personal guarantee by each party to the other of good faith and coöperative support, and neither party may act to the disadvantage of the other. The author, during the continuance of a publishing contract, must not permit the use of his work otherwise, to the prejudice of the original publisher, and the publisher must not sell copies to the injury of the future market of the author. {Sidenote: English development of this doctrine} This general doctrine was worked out in a chain of early English cases, the first of which was that of Sweet _v._ Cater, in 1841, where Vice Chancellor Shadwell decided that the plaintiff publisher who had contracted with Sir Edward Sugden to publish a tenth edition of 2500 copies of his legal work, could, until the specified copies were sold, prevent the publishing of another edition by the defendant publisher, despite any arrangements between the author and the latter. It was strongly upheld by Vice Chancellor Page Wood in the case of Stevens _v._ Benning, in 1854, affirmed on appeal by the Lords Justices, and Reade _v._ Bentley, in 1857. In the first case Forsyth contracted for the publication of his legal work, undertaking to make future revision for subsequent editions, with the publishing firm of the elder Benning, and on its bankruptcy, four hundred copies of the second edition were sold to Stevens & Norton, which firm sued to prevent the younger Benning from publishing a third edition as revised by Forsyth. The Vice Chancellor held that though the plaintiffs might presumably sell the copies, if done without disadvantage to the author, the original contract was not an assignment, but a personal contract which could not pass to the plaintiffs, and therefore denied an injunction. In the second case, where Charles Reade sought to resume his rights in "Peg Woffington" and "Christie Johnstone," from his publisher Bentley, after all expenses had been paid and profits on several editions accounted for, the Vice Chancellor held that the contract, as of a personal nature, could be terminated by the author when that did not involve loss to the other party. Copies printed to replace others destroyed by fire were decided in the case of Blackwood _v._ Brewster, in 1860, in the Scotch Court of Session, not to constitute a new edition. In the later case of Hole _v._ Bradbury, in 1879, a joint author and the heir of a deceased joint author of "A little tour in Ireland" were adjudged by Justice Fry to be entitled to resume their rights and to recover the illustrations from publishers who had succeeded to the business of the original publishing firm. {Sidenote: Author's transfer to other publishers} In Warne _v._ Routledge, in 1874, where Mrs. Cook sought to transfer from one publisher to another without notice a book of which 44,000 copies had been printed and 42,000 sold, the plaintiff publisher sought to restrain the defendant from issuing a new edition until the remaining copies had been sold. Sir George Jessel, M. R., held that the right of publishing was an exclusive one for the time of the contract, though the word exclusive was not used, but that the author could provide for publication by another publisher immediately on terminating a contract,--a decision which has been criticized as not compatible with other decisions nor sound law. {Sidenote: Proprietary name} Where a proprietary name becomes identified with a publication, an assignment of the work may estop the person named from use of his name or advertisement of his service elsewhere, as in the English case of Ward _v._ Beeton, in 1875, where the originator of "Beeton's Christmas Annual," who had been dismissed by the publishers of that work, was restrained from advertising that he would edit a similar publication for another publisher. But the editor's name is not necessarily part of the title, and an editor may not restrain its omission from the title-page, as was held in the English case of Crookes _v._ Petter, in 1860. {Sidenote: Copies remaining unsold} It was decided in the English case of Howitt _v._ Hall, in 1862, by Vice Chancellor Page Wood, that where a publisher had procured from an author the copyright for a limited term, in that case four years, he had the right to sell, after the expiration of the contract term, copies printed in good faith within the term, though the court indicated that if there had been an excessive printing of the work with the evident purpose of stocking up for sale after expiration of the contract, such course would not be permitted. This precedent indicates that a publisher would have the right to sell copies printed during the original term of copyright and remaining in stock, even if an author under the renewal provision of the American code exercised the right to make arrangements with another publisher for the renewal term. To like effect it was decided in the English case of Taylor _v._ Pillow, in 1869, by Vice Chancellor James, that a copyright proprietor assigning the copyright might thereafter dispose of copies of a song remaining unsold, in the absence of stipulations to the contrary. These questions are usually decided in advance in American publishing practice by provision in the contract between author and publisher that copies remaining unsold at the end of the contract term may be reclaimed by the author at a stated price--and some such provision is always desirable. {Sidenote: American confirmation} The same doctrine was upheld in the American case of Pulte _v._ Derby, in 1852, in the U. S. Circuit Court by Judge McLean, who held that where the contract for publishing a second edition provided that the publishers might print as many copies as they could sell, the publishers might make successive printings in that edition, and that the use of the words "third edition" on the title-page did not terminate the arrangement. The author could not meantime publish otherwise, but the publishers, who held legal title to the copyright within the terms of the contract, could not exercise rights beyond the second edition, nor could they assign their rights. {Sidenote: Renewal term} American publishers usually expect the author to make a contract for the entire copyright period, and to make application in their behalf for the renewal term. It is true that the very large percentage of books lose their value long before the close of the original term, and that the percentage where renewal is desirable is very small. It was a thought to which "Mark Twain's" mind often recurred that a long copyright term was not desirable, because so few books were of value at the end of one or two decades, and he frequently put forward a scheme for extending copyright from period to period, based on the issuance of a cheap edition under the author's sanction. This scheme, which he presented in some detail at the time of the Congressional copyright hearings, did not receive support from other students and advocates of copyright. {Sidenote: License not assignment} A contract giving publishers the "whole and exclusive right of publication," was decided _In re_ Clinical Obstetrics by the Chancery Court, through Justice Warrington, in 1908, to be a personal contract and license, not an assignment of copyright, and the assignment entries were ordered to be expunged, in line with the decision in 1907 by the Court of Appeal in _Re_ "The Liedertafel series" _et al._ {Sidenote: Author's and publisher's profits} The publication of a book involves many indirect expenses, in addition to the direct cost of manufacture, such as the share of general office expenses, the large item of advertising and the like. These are difficult to allot, and this helps to make the "half profits" system a fruitful occasion of disagreements. On this system or on the commission basis, the nature and proportion of these indirect charges should be clearly set forth in the publishing agreement. On a "half profit" or similar plan, the publisher is not considered to be entitled to make his own profit on paper, printing, etc., but must account for these at the cost to him; and in any event the publishers' accounts must be fully open to the author. On the whole, the payment of royalty, on the usual American plan, is more satisfactory. The customary royalty is ten per cent, or in the case of authors of established reputation whose works have large sale, as high as fifteen or twenty per cent, when the publishers cover all expenses, except that on school books and "subscription" editions the royalty is usually five per cent. When an author pays for the plates or for the edition, the return is substantially higher, as fifteen or twenty per cent to the ordinary author. The royalty is usually reckoned on ordinary cloth binding, unless otherwise stated in the contract, and almost invariably not on copies printed, but on copies sold. A royalty on "all copies sold" was construed in the King's Bench Division by Justice Walton, in Neufeld _v._ Chapman in 1901, to cover all forms of publication, including royalty on a proportionate part of the sales price of a periodical. {Sidenote: The publisher's share} The publisher does not, as is sometimes assumed, get the other ninety per cent as profit; he gets the difference between the receipts from the trade or public on copies _actually sold_--averaging perhaps two thirds of the "retail price," on which the author's ten per cent (really thus fifteen per cent) is reckoned--and the cost of making the _entire edition_ and of advertising and marketing the book. The author, in any event, gets a return proportioned to the success of his book. If its sales are small, the publisher makes a loss; if large, the publisher makes a profit increasing proportionately after the initial outlay for publication has been covered. {Sidenote: "Author's editions"} {Sidenote: Printer's lien} When an author arranges with a publisher or printer to issue a book at author's expense, such editions being usually known as "author's editions," great care should be taken to make such arrangements only with publishers or printers of known and high character and to base them on a complete and exact written contract, defining particularly the amount of commission or royalty to be paid by or to the author, or the expenses to be allowed before reckoning "half profits." Publishers of good repute make such arrangements in the case of books not likely to show adequate commercial profit, but there are publishers and printers who make a business of such transactions with authors without adequately providing to give the author the best possible market, and these cannot always be expected to deal fairly with him. Arrangements made directly between an author (or publisher) and a printer as such, are scarcely within the scope of this work, but it may be said briefly that a printer usually has a mechanic's lien on plates he has made or sheets he has printed (but not on plates used by him unless he has made them), until the bills are paid; and that he may not demand payment until the work has been completed, or in case of its destruction by fire or otherwise, previous to complete delivery, in the absence of contract obligation for advance or partial payment. {Sidenote: Compulsory license system} The compulsory license system, often miscalled "the royalty plan,"--discussed in England in 1877 as the Farrer proposal and in America about 1890 as the Pearsall-Smith scheme,--is provided by legislation under which any publisher may publish a work without consent of the author provided he pays a royalty as specified or stipulated in the law, as ten or five per cent or a fixed sum per copy. This system has unfortunately been adopted in the new American code, with reference to the mechanical reproduction of music, though with the saving clause that the author has complete right to forbid mechanical reproduction of his musical composition so long as he does not license any manufacturer. This American precedent has been followed as to mechanical music in recent legislation by Germany and other continental countries and in the modified British measure. The Italian copyright law has, however, a compulsory license provision for the second forty years of copyright, under which any publisher can issue a book on payment to the author of five per cent royalty; and the new British measure contains a like provision applicable twenty-five or thirty years after the author's death, on a basis of ten per cent royalty. {Sidenote: License payments} The American provision is for two cents for each roll, under elaborate regulations, as set forth in the chapter on mechanical music provisions. It is doubtful whether those regulations can be effectively applied, and indeed the whole provision may prove unconstitutional because of its interference with the right of sale or license involved in private property. The several substitutes for these regulations proposed and discussed, were rejected as even less desirable--as the proposal that the Copyright Office itself should undertake an elaborate system of accounting and guarantee to the author as practically a ward of the state, and another proposal for a system of stamps to be affixed to each copy published, supplied by the Copyright Office or the author and sold to the publisher, a system actually in practice in shoe manufacture under the royalty system of the McKay Shoe Manufacturing Company. The answer to all these schemes is that the author should be at liberty to make such arrangements, by contract with one publisher or with many, as he may please, and that a law to compel him to adopt any one plan of marketing his wares would interfere with his freedom of choice and his natural return. {Sidenote: Saving through single publisher} The reason that an author chooses one publisher instead of many is the simple one that the original cost of making and advertising a book is in this way reduced to one outlay instead of multiplied in many, and that this cost is minimized by being distributed over the largest possible edition. It is the practice of any successful publisher to plan for such an edition as will command the widest sale, and so distribute the original cost over as many copies as possible, and when a copyright book proves to be of such general demand that different styles of editions can be sold, such editions are in fact made by the same publisher. The compulsory license system would only protect the public against the unwisdom of publishers, whose mistakes are presently corrected by business failure or by the transfer of his books by the author to more enterprising houses. {Sidenote: Copyrights in bankruptcy} Copyrights are specifically included, with patents and trade-marks, in the bankruptcy acts as assets which pass to the trustee, which applies to a bankrupt author as well as to other copyright proprietors, but as previously stated, this does not include the personal contract for the publication of an unassigned work. This last doctrine was fully upheld in the English case of Griffith _v._ Tower Pub. Co. & Moncrieff, in 1897, by Justice Stirling, where the liquidator of a corporation was enjoined from transferring a copyright direct to a publisher not acceptable to the author. A manuscript as such is a tangible asset in bankruptcy if of value in itself, but the right of the author to copyright or to publish his manuscript is a personal and not a property right, which therefore does not pass in case of bankruptcy, and a court would probably not undertake to compel an author to realize the value of an unpublished work for the benefit of creditors by publication and copyright. Nor may a bankrupt author be compelled in bankruptcy process to complete his work, as was decided in 1841 in the English case of Gibson _v._ Carruthers. {Sidenote: Copyrights in taxation} Copyrights, like patents, are subject to the inheritance tax, as capitalized on the basis of income. In the appraisal of 1911 of the copyrights of Mrs. Mary Baker G. Eddy, author of "Science and health," and other Christian Science books, the valuation returned for tax purposes reached $1,400,000, which is probably the largest valuation ever put upon the copyrights of any one author. The copyrights of the late Marion Crawford were appraised by the New York State tax authorities, in the same year, by valuing his last novel at the income during its first year of publication and his earlier novels at the income for three years passed. Neither method afforded a fair valuation, as a work may be dead after its first year, and the test by income through successive years would depend on whether sales were decreasing or increasing during the period. Standard school books are sometimes estimated as worth three years' income, but such a generalization would not apply in other cases. Each valuation, for tax or sales purposes, must depend upon the circumstances in each case. An inheritance or other tax on copyrights, which are intangible property, may fairly be questioned, in view of the uncertainty whether the legatees may realize any future return from the property. XXIII THE LITERATURE OF COPYRIGHT {Sidenote: Bibliographical materials} The literature of copyright is extensive and its bibliography would now make a volume in itself. The bibliography of literary property prepared by Thorvald Solberg, now Register of Copyrights, for the Bowker-Solberg volume of 1886, occupying sixty pages, covered approximately fifteen hundred titles, besides analytical indexes to several periodicals. The bibliography to the present date, inclusive of that material, which Register Solberg has continued, would increase this record at least twofold. The copyright campaign resulting in the code of 1909 was especially prolific of drafts and bills, Congressional and other reports and private publications, of which "dry as dust" indication is given in the earlier chapter containing the record of that campaign. Nothing more can be attempted in this chapter than a brief glance over historical material and leading works. {Sidenote: Early history} The early history of copyright is to be traced only through incidental references in classical and medieval works. Among these may be instanced Montalembert's "Monks of the West" and Brown's "History of the printing press in Venice," previously cited. George Haven Putnam's work on "Books and their makers in the Middle Ages" (New York, Putnams, 1896-97, 8vo, 2 v., 459, 538 p.), though dealing chiefly with publishing relations, incidentally gives much information on the early history of printing privileges and copyrights proper. Several of the law book writers, notably Copinger, summarize in some measure the early history of copyright. {Sidenote: Early American contributions} Perhaps the earliest American publication distinctively on copyright was the "Remarks on literary property," by Philip H. Nicklin, in 1838, in which he included as an appendix a reprint of Joseph Lowe's summary of copyright history and practice up to 1819, from the Encyclopædia Britannica supplement, and argued for longer, if not perpetual copyright for our own authors, on the plea that "charity begins at home," as well as for international copyright throughout a world-wide republic of letters. The later movements in America for international copyright brought out much writing, though largely in periodical articles and pamphlets, among the most noteworthy of which were Dr. Francis Lieber's letter "On international copyright," of 1840, Henry C. Carey's "Letters on international copyright," of 1853, and "The international copyright question considered," of 1872, George Haven Putnam's monograph on "International copyright," of 1878, and Richard Grant White's "American view of the copyright question," of 1880. {Sidenote: Later American pamphleteers} During the copyright campaign leading to the act of 1891, several pamphlets were issued on behalf of the American (Authors) Copyright League, notably Rev. Dr. Henry van Dyke's "National sin of piracy," of 1888, and Prof. Brander Matthews's "Cheap books and good books," on the texts of James Russell Lowell's epigram, "There is one thing better than a cheap book, and that is a book honestly come by," and George William Curtis's words, "Cheap books are good things, but cheapening the public conscience is a very bad thing,"--which last paper is reprinted in Putnam's "Question of copyright." {Sidenote: American treatises} The leading American law book writer has been Eaton S. Drone, later editor of the New York _Herald_, whose valuable "Treatise on the law of property in intellectual productions in Great Britain and the United States" (Boston, Little, Brown & Co., 1879, 8vo, 774 p.) covered comprehensively the general copyright legislation of 1870-74, and superseded the earlier standard American law book, George Ticknor Curtis's work of 1847, "Treatise on the law of copyright ... as enacted and administered in England and America." The volume on "Copyright, its law and its literature," by R. R. Bowker and Thorvald Solberg (N. Y. _Publishers' Weekly_, 1886, 8vo, 136 p.), the latter furnishing the bibliography of copyright, included facsimile of the autograph signatures in the memorial of American authors of 1885, and a reprint of Sir James Stephen's digest of British copyright law, as well as the revised statutes, constituting the copyright law of the United States at that time. "The question of copyright," by George Haven Putnam (N. Y., Putnams, 1891, 12mo, 412 p.), brought into one compilation many of the important documents and articles, including the text of the act of 1891. A valuable digest of "Copyright cases, 1891-1903," American and English, was compiled by Arthur S. Hamlin for the American Publishers Copyright League (N. Y., Putnams, 1904, 8vo, 237 p.). {Sidenote: Copyright Office publications} The most valuable series of current publications on copyright are those issued from the Library of Congress by the Copyright Office, under Register Solberg's administration. The most important of these series is that of Copyright Office _Bulletins_ issued at irregular intervals, of which No. 14 presents the current copyright law and No. 15, issued in 1910, gives the "Rules and regulations for the registration of claims to copyright" under the new law. No. 3, as issued in a second edition in 1906, contains the full text of "Copyright enactments of the United States, 1783-1906," and No. 8, issued in 1905, "Copyright in Congress, 1789-1904," contains a bibliographical and chronological record of all proceedings in Congress. Several bulletins were issued during the preparation of the law of 1909, of which the most important was No. 9, giving the "Provisions of the United States copyright laws with a summary of some parallel provisions of the laws of foreign countries." No. 5 covers copyright in England, presenting the full text of copyright acts from 1875 to 1902, including and supplementing Sir James Stephen's digest of British copyright law; No. 6, "Copyright in Canada and Newfoundland" up to 1903; No. 7, "Foreign copyright laws now in force" up to 1904; No. 11, "Copyright in Japan" up to 1906; and No. 13, the documents of the International Copyright Union, including the Berlin convention of 1908. Bulletins No. 1 and 2 cover the former copyright law and directions for registration under it. Many of these bulletins are already out of print. A minor series is that of _Information circulars_, of which forty-five have been published, many of them now out of date and superseded, covering from time to time current information as to laws, proclamations, treaties, etc., domestic and foreign, as well as opinions of the Attorneys-General, custom regulations and the like. {Sidenote: Labor report} A report on the effect of the international copyright law by the Commissioner of Labor, Carroll D. Wright, was presented to the Senate in 1901. {Sidenote: English contributions about 1840} Copyright literature in England is too extensive for more than brief reference here. "The great debate," led by Serjeant Talfourd on one side and Lord Macaulay on the other, is recorded in Hansard's Parliamentary Debates (third series, volume LVI of 1841), and the speeches of the two combatants are reprinted in their respective works. John James Lowndes's "Historical sketch of the law of copyright" was printed in 1840, with especial reference to Serjeant Talfourd's bill, and contained an appendix on the state of copyright in foreign countries--America, France, Holland and Belgium, the German states, Russia, Denmark, Norway and Sweden, Spain, and the Two Sicilies. "A plea for perpetual copyright," by W. D. Christie, was also put forth in 1840. Carlyle's caustic "Petition on the copyright bill" is included in his "Critical and miscellaneous essays." {Sidenote: Later English contributions} Among the later noteworthy contributions to the subject were the caustic denunciation of international piracy by Charles Reade, the novelist, under the title "The eighth commandment," reprinted in America by Ticknor & Fields, in 1860; Matthew Arnold's _Fortnightly_ article of 1880, on "Copyright," printed in the volume of his collected works containing his "Irish essays"; John Camden Hotten's seven letters on "Literary copyright," in a volume of 1871; and Walter Besant's volume "The pen and the book," of 1899, containing a special chapter on copyright and literary property by G. H. Thring, Secretary of the British Society of Authors. Herbert Spencer made several contributions to the subject, some of which were reprinted in his "Various fragments." {Sidenote: English legal treatises} There had been published, so early as 1823, the first edition of Richard Godson's "Practical treatise on the law of patents for inventions and of copyright," which was immediately translated into French and became the standard English work, being supplemented in 1832 with an abstract of the laws in foreign countries and republished in a second comprehensive edition in 1840 by Saunders & Benning, London; in 1844 this second edition, with a supplement covering the recent laws, was reissued by W. Benning & Co., in an octavo of 700 pages, and in 1851 a separately published supplement by Peter Burke brought Godson's work up to that date. Another early English law book was Robert Maugham's "Treatise on the laws of literary property, comprising the statutes and cases; with an historical view and disquisitions," published by Longmans in 1828. The standard work of W. A. Copinger on "The law of copyright, in works of literature and art," first published in 1870 and reissued in a fourth edition, as edited by J. M. Easton (London, Stevens & Haynes, 1904, 8vo, 1155 p.), includes as well as English and American decisions, chapters on international copyright and on copyright in foreign countries, with full text of English and many foreign statutes, and many legal forms. A work by J. H. Slater covered "The law relating to copyright and trade-marks" (London, Stevens, 1884, 8vo, 466 p.), in the form of a digest of the more important English and American decisions. The writer of the York Prize Essay of the University of Cambridge for 1882, T. E. Scrutton, rewrote and extended his work under the title of "The law of copyright," later continued into a fourth enlarged edition (London, Clowes, 1893, 4 ed., 8vo, 356 p.). B. A. Cohen published a compact study of "The law of copyright" in 1896. {Sidenote: Birrell's lectures} Augustine Birrell, as Quain Professor of law at University College, London, delivered a series of lectures in 1898, of which seven were printed in his delightfully readable little volume on "The law and history of copyright in books" (London, Cassell, 1899, 12mo, 228 p.). {Sidenote: MacGillivray's works} The latest English law book writer is E. L. MacGillivray, whose "Treatise upon the law of copyright," British and American (London, Murray, 1902, 8vo, 439 p.) is extremely valuable as a case digest, with foot-note references to cases. This was followed by a brief "Digest of the law of copyright," English only, prepared by the same writer for the Publishers Association of Great Britain and Ireland (London, Butterworth, 1906, 12mo, 106 p.). The same association has printed annually from 1901, a digest of "Copyright cases," which are collected in two volumes, for 1901-04 and 1905-10 inclusive, also edited by Mr. MacGillivray. {Sidenote: English special treatises} Special English treatises on specific classes of copyright protection are Colles and Hardy's "Playright and copyright in all countries" (London, Macmillan, 1906, 8vo, 275 p.); Edward Cutler's "Manual of musical copyright law" (London, Simpkin, Marshall, 1905, 8vo, 213 p.); Reginald Winslow's "The law of artistic copyright" (London, Clowes, 1889, 8vo, 215 p.); Edmunds and Bentwich's "The law of copyright in designs" (London, Sweet & Maxwell, 1908, 2 ed., 8vo, 488 p.); Knox and Hind's "Law of copyright in designs" (London, Reeves & Turner, 1899, 8vo, 264 p.); and William Briggs's comprehensive treatise on "The law of international copyright" (London, Stevens & Haynes, 1906, 8vo, 870 p.), the most important publication in English in its field. {Sidenote: Parliamentary and Commission reports} The Parliamentary papers giving reports of special commissions, referred to in previous chapters, constitute an important part of the English literature of copyright, the most notable being the report of the Royal Copyright Commission issued in 1878, with Sir James Stephen's digest of the law as then existing, and a supplementary blue-book of evidence; the report of the Musical Copyright Committee appointed by the Home Department, of 1904; the report of the Law of Copyright Committee appointed by the President of the Board of Trade, of 1909, with accompanying minutes of evidence; and the minutes of the Imperial Copyright Conference of 1909. The new copyright bill has been four times printed in progressive form--on its first introduction, July 26, 1910, on its reintroduction, March 30, 1911, as it emerged from committee, July 13, 1911, and as it went to the Lords, August 18, 1911. The pending Canadian bill has been printed only as introduced April 26, 1911, but the government has supplied an accompanying memorandum comparing its provisions with existing law. {Sidenote: Cyclopædias and digests} The American and English law cyclopædias and digests also give references to copyright cases and decisions, some in special chapters, more or less comprehensive of recent copyright interpretations. {Sidenote: French works} The most recent authoritative French works on literary property are Eugène Pouillet's "Traité théorique et pratique de la propriété littéraire et artistique" (Paris, Marchal & Billard, 3d ed., 1908, 1028 p.); Gustave Huard's "Traité de la propriété intellectuelle, v. 1. Propriété littéraire et artistique" (Paris, Marchal & Billard, 1903, 400 p.), and A. Huard and Édouard Mack's "Répertoire de législation, de doctrine et de jurisprudence en matière de propriété littéraire et artistique" (Paris, Marchal & Billard, 1909, 740 p.). An earlier elaborate work is that of Claude Couhin, "La propriété industrielle, artistique et littéraire" (Paris, Larose, 1894), in three volumes. {Sidenote: German works} For Germany the text of the general copyright law of June 19, 1901, of the law relating to figurative arts and photographs of January 9, 1907, and the amendatory law including mechanical music reproductions, May 22, 1910, should be consulted. Otto Lindemann's "Das Urheberrecht an Werken der Literatur und der Tonkunst" (Berlin, Guttentag, 1910, 3d ed., 16mo, 155 p.) is a brief compilation of and comment on these laws of 1901 and 1910. The most recent and authoritative general works are Prof. Josef Kohler's "Urheberrecht an Schriftwerken und Verlagsrecht" (Stuttgart, F. Enke, 1907, 527 p.), though some of his statements of theory have given rise to criticism and dispute, and his "Kunstwerkrecht" (Stuttgart, Enke, 1908, 191 p.), Daude's "Die Reichsgesetze über das Urheberrecht an Werken der Literatur und Tonkunst und das Verlagsrecht" (Berlin, Guttentag, 1910, 293 p.), and Dr. Albert Osterrieth's "Das Urheberrecht an Werken der bildenden Künste und der Photographie" (Berlin, Heymann, 1907, 312 p.). {Sidenote: Early German contributions} In the early German literature of copyright should be noted the works of Pütter, sometimes called the father of the modern theory of property in intellectual productions, who wrote as early as 1764, an edition of whose "Beyträge zum Teutschen Staats- u. Fürsten-Rechte" was published in Göttingen in 1777; and the tractate of Immanuel Kant, "Von der Unrechtmässigkeit des Büchernachdrucks," which may be found in his collected works. {Sidenote: Italian works} The most important Italian work of recent issue is that of Eduardo Piola-Caselli, "Del diritto di autore" (Naples, E. Marghieri, 1907, 875 p.), and earlier works of standard character are Enrico Rosmini's "Legislazione e jurisprudenza sui diritti d'autore" (Milan, M. Hoepli, 1890, 671 p.), and Pietro Esperson, "De' diritti di autore sulle opere dell'ingegno ne' rapporti internazionali" (Torino, Unione tipografico-editrice, 1899, 278 p.). {Sidenote: Spanish compendium} A useful compendium of Spanish copyright law of 1879 _et seq._, covering both the Peninsula and the _ultramar_ colonies, was published in Havana by La Propaganda Literaria, in 1890, as edited with an interesting comparison of Spanish law with that of Great Britain and America by D. F. G. Garofalo y Morales. {Sidenote: International compilations} A most valuable compilation of the copyright laws and treaties of all countries, comprising a literal translation into German of about 250 acts, is "Gesetze über das Urheberrecht in allen Ländern," edited in a second edition by Prof. Ernest Röthlisberger (Leipzig, Hedeler, 1902, 418 p.), which was complemented by his summary of the domestic and international law of copyright in the different countries, "Der interne und der internationale Schutz des Urheberrechts," also in its second edition (Leipzig, Boersenverein der deutschen Buchhändler, 1904, 116 p.), comprising references or mentions covering fifty-seven countries and forty-nine colonies, especially the British colonies. With these should be mentioned "Recueil des conventions et traités concernant la propriété littéraire et artistique," published under the auspices of the Bureau of the International Copyright Union (Berne, Bureau de l'Union internationale, 1904, 8vo, 908 p.). These works are supplemented by the publication from month to month in the _Droit d'Auteur_ of Berne, of which Prof. Röthlisberger is the editor, of new conventions, treaties, laws and other material, bringing world-information up to date. APPENDIXES I UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS 1. UNITED STATES COPYRIGHT CODE OF 1909 AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT {Sidenote: Exclusive right to print, publish and vend} _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right: (a) To print, reprint, publish, copy, and vend the copyrighted work; {Sidenote: To translate, dramatize arrange and adapt, etc.} (b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art; {Sidenote: To deliver lectures, sermons, etc.} (c) To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production; {Sidenote: To represent dramatic works, or make record, or exhibit or perform, etc.} (d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever; {Sidenote: To perform music and make arrangement, setting, or record} {Sidenote: Act not retroactive.} {Sidenote: Music by foreign author} {Sidenote: Control of mechanical musical reproduction} {Sidenote: Royalty for use of music on records, etc.} {Sidenote: Notice of use of music on records} {Sidenote: License to use music on records} (e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: _Provided_, That the provisions of this Act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: _And provided further, and as a condition of extending the copyright control to such mechanical reproductions_, That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufacturer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: _And provided further_, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright. {Sidenote: Failure to pay royalties} In case of the failure of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this Act, not exceeding three times such amount. {Sidenote: Reproduction of music on coin-operated machines} The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs. {Sidenote: Right at common law or in equity} SEC. 2. That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor. {Sidenote: Component parts of copyrightable work} {Sidenote: Composite works or periodicals} SEC. 3. That the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act. {Sidenote: Works protected} SEC. 4. That the works for which copyright may be secured under this Act shall include all the writings of an author. {Sidenote: Classification of copyright works} SEC. 5. That the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs: (a) Books, including composite and cyclopædic works, directories, gazetteers, and other compilations; (b) Periodicals, including newspapers; (c) Lectures, sermons, addresses, prepared for oral delivery; (d) Dramatic or dramatico-musical compositions; (e) Musical compositions; (f) Maps; (g) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character; (j) Photographs; (k) Prints and pictorial illustrations: {Sidenote: Classification does not limit copyright} _Provided, nevertheless_, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act. {Sidenote: Compilations, abridgements, dramatizations, translations, new editions} {Sidenote: Subsisting copyright not affected} SEC. 6. That compilations or abridgements, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works. {Sidenote: Not subject-matter of copyright: works in public domain; government publications} SEC. 7. That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof: _Provided, however_ That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor. {Sidenote: Copyright to author or proprietor for terms specified in Act} {Sidenote: Foreign authors} SEC. 8. That the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act: _Provided, however_, That the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only: {Sidenote: Alien authors domiciled in U. S.} (a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or {Sidenote: Authors, when citizens of countries granting reciprocal rights} {Sidenote: International agreement} (b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act, or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto. {Sidenote: Presidential proclamation} The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require. {Sidenote: Publication with notice initiates copyright} SEC. 9. That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section twenty-one of this Act. {Sidenote: Registration of copyright} {Sidenote: Copyright certificate} SEC. 10. That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the register of copyright shall issue to him the certificate provided for in section fifty-five of this Act. {Sidenote: Copyright protection of unpublished works: lectures, dramas, music, etc.} {Sidenote: Deposit of copies after publication} SEC. 11. That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic or musical composition; of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing. But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies under sections twelve and thirteen of this Act where the work is later reproduced in copies for sale. {Sidenote: Two complete copies of best edition} {Sidenote: Periodical contributions} {Sidenote: Work not reproduced in copies for sale} {Sidenote: No action for infringement until deposit of copies} SEC. 12. That after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the copyright office or in the mail addressed to the register of copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, which copies, if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this Act; or if such work be a contribution to a periodical, for which contribution special registration is requested, one copy of the issue or issues containing such contribution; or if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction provided by section eleven of this Act, such copies or copy, print, photograph, or other reproduction to be accompanied in each case by a claim of copyright. No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with. {Sidenote: Failure to deposit copies} {Sidenote: Register of copyrights may demand copies} {Sidenote: Fine $100 and retail price of 2 copies, best edition} {Sidenote: Forfeiture of copyright} SEC. 13. That should the copies called for by section twelve of this Act not be promptly deposited as herein provided, the register of copyrights may at any time after the publication of the work, upon actual notice, require the proprietor of the copyright to deposit them, and after the said demand shall have been made, in default of the deposit of copies of the work within three months from any part of the United States, except an outlying territorial possession of the United States, or within six months from any outlying territorial possession of the United States, or from any foreign country, the proprietor of the copyright shall be liable to a fine of one hundred dollars and to pay to the Library of Congress twice the amount of the retail price of the best edition of the work, and the copyright shall become void. {Sidenote: Postmaster's receipt} SEC. 14. That the postmaster to whom are delivered the articles deposited as provided in sections eleven and twelve of this Act shall, if requested, give a receipt therefor and shall mail them to their destination without cost to the copyright claimant. {Sidenote: Printed from type set within U. S.} {Sidenote: Book in foreign language excepted} {Sidenote: Lithographic or photo-engraving process} {Sidenote: Printing and binding of the book} {Sidenote: Illustrations in a book} {Sidenote: Separate lithographs and photo-engravings} {Sidenote: Books for blind excepted} {Sidenote: Books in foreign languages excepted} SEC. 15. That of the printed book or periodical specified in section five, subsections (a) and (b) of this Act, except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this Act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of type-setting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photo-engraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States; which requirements shall extend also to the illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art; but they shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English, or to books published abroad in the English language seeking ad interim protection under this Act. {Sidenote: Affidavit of American manufacture} {Sidenote: Printing and binding of the book} {Sidenote: Establishment where printing was done} {Sidenote: Date of publication} SEC. 16. That in the case of the book the copies so deposited shall be accompanied by an affidavit, under the official seal of any officer authorized to administer oaths within the United States, duly made by the person claiming copyright or by his duly authorized agent or representative residing in the United States, or by the printer who has printed the book, setting forth that the copies deposited have been printed from type set within the limits of the United States or from plates made within the limits of the United States from type set therein; or, if the text be produced by lithographic process, or photo-engraving process, that such process was wholly performed within the limits of the United States, and that the printing of the text and binding of the said book have also been performed within the limits of the United States. Such affidavit shall state also the place where and the establishment or establishments in which such type was set or plates were made or lithographic process, or photo-engraving process or printing and binding were performed and the date of the completion of the printing of the book or the date of publication. {Sidenote: False affidavit, a misdemeanor; fine, $1,000 and forfeiture of copyright} SEC. 17. That any person who, for the purpose of obtaining registration of a claim to copyright, shall knowingly make a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited. {Sidenote: Notice of copyright} {Sidenote: Notice on maps, copies of works of art, photographs, and prints} {Sidenote: Notice on accessible portion} {Sidenote: Notice on existing copyright works [See note below]} SEC. 18. That the notice of copyright[2] required by section nine of this Act shall consist either of the word "Copyright" or the abbreviation "Copr." accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication. In the case, however, of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: _Provided_, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright is subsisting when this Act shall go into effect, the notice of copyright may be either in one of the forms prescribed herein or in one of those prescribed by the Act of June eighteenth, eighteen hundred and seventy-four. Footnote 2: The Act of June 18, 1874, provides that the notice of copyright to be inscribed on each copy of a copyrighted work shall consist of the following words: "Entered according to act of Congress, in the year ----, by A. B., in the office of the Librarian of Congress, at Washington"; or, ... the word "Copyright," together with the year the copyright was entered, and the name of the party by whom it was taken out, thus: "Copyright, 18-- by A. B." {Sidenote: Notice of copyright on book} {Sidenote: On periodical} {Sidenote: One notice in each volume or periodical} SEC. 19. That the notice of copyright shall be applied, in the case of a book or other printed publication, upon its title-page or the page immediately following, or if a periodical either upon the title-page or upon the first page of text of each separate number or under the title heading, or if a musical work either upon its title-page or the first page of music: _Provided_, That one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice. {Sidenote: Omission of notice by accident or mistake} {Sidenote: Innocent infringement} SEC. 20. That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer, who has been misled by the omission of the notice; and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay, innocently incurred, if the court, in its discretion, shall so direct. {Sidenote: Book published abroad in the English language} {Sidenote: Ad interim copyright for 30 days} SEC. 21. That in the case of a book published abroad in the English language before publication in this country, the deposit in the copyright office, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a request for the reservation of the copyright and a statement of the name and nationality of the author and of the copyright proprietor and of the date of publication of the said book, shall secure to the author or proprietor an ad interim copyright, which shall have all the force and effect given to copyright by this Act, and shall endure until the expiration of thirty days after such deposit in the copyright office. {Sidenote: Extension to full term} {Sidenote: Deposit of copies, filing of affidavit} SEC. 22. That whenever within the period of such ad interim protection an authorized edition of such book shall be published within the United States, in accordance with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act. {Sidenote: Duration of copyright: 1st term, 28 years} {Sidenote: Posthumous works, periodicals, cyclopædic or composite works} {Sidenote: Renewal term 28 years} {Sidenote: Other copyrighted works, first term 28 years} {Sidenote: Renewal term 28 years; to author, widow, children, heirs or next of kin} {Sidenote: Notice that renewal term is desired} {Sidenote: Copyright ends in 28 years unless renewed} SEC. 23. That the copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under an assumed name: _Provided_, That in the case of any posthumous work or of any periodical, cyclopædic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: _And provided further_, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopædic or other composite work when such contribution has been separately registered, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: _And provided further_, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication. {Sidenote: Extension of subsisting copyrights} {Sidenote: Proprietor entitled to renewal for composite work} {Sidenote: Renewal application} SEC. 24. That the copyright subsisting in any work at the time when this Act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by the author of such work if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal period: _Provided, however_, That if the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor shall be entitled to the privilege of renewal and extension granted under this section: _Provided_, That application for such renewal and extension shall be made to the copyright office and duly registered therein within one year prior to the expiration of the existing term. {Sidenote: Infringement of copyright} SEC. 25. That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable: {Sidenote: Injunction} (a) To an injunction restraining such infringement; {Sidenote: Damages} {Sidenote: Proving sales} {Sidenote: Newspaper reproduction of photograph; recovery, $50-$200} {Sidenote: Maximum recovery, $5,000} {Sidenote: Minimum recovery, $250} (b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty: {Sidenote: Painting, statue, or sculpture, $10 per copy} First. In the case of a painting, statue, or sculpture ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; {Sidenote: Other works, $1 per copy} Second. In the case of any work enumerated in section five of this Act, except a painting, statue, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; {Sidenote: Lectures, $50} Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery; {Sidenote: Dramatic or musical works, $100 and $50} {Sidenote: Other musical compositions, $10} Fourth. In the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance; {Sidenote: Delivering up infringing articles} (c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright; {Sidenote: Destruction} (d) To deliver up on oath for destruction all the infringing copies or devices, as well as all plates, molds, matrices or other means for making such infringing copies as the court may order; {Sidenote: Infringement by mechanical instruments} {Sidenote: Injunction may be granted} {Sidenote: Recovery of royalty} {Sidenote: Notice to proprietor of intention to use} {Sidenote: Damages, three times amount provided} {Sidenote: Temporary injunction} (e) Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e), of this Act: _Provided also_, That whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this Act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office, sending to the copyright office a duplicate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a further sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid. {Sidenote: Rules for practice and procedure} Rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court of the United States. {Sidenote: Judgment enforcing remedies} SEC. 26. That any court given jurisdiction under section thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of any provision hereof to enter a judgment or decree enforcing the remedies herein provided. {Sidenote: Proceedings, injunction, etc., may be united in one action} SEC. 27. That the proceedings for an injunction, damages, and profits, and those for the seizure of infringing copies, plates, molds, matrices, and so forth, aforementioned, may be united in one action. {Sidenote: Penalty for willful infringement} {Sidenote: Oratorios, cantatas, etc. may be performed} SEC. 28. That any person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court: _Provided, however_, That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit. {Sidenote: False notice of copyright (penalty for)} {Sidenote: Fraudulent removal of notice; fine $100-$1,000} {Sidenote: Issuing, selling, or importing article bearing false notice; fine $100} SEC. 29. That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars. {Sidenote: Importation prohibited of articles bearing false notice and piratical copies} SEC. 30. That the importation into the United States of of any article bearing a false notice of copyright when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited. {Sidenote: Prohibition of importation of books} {Sidenote: Exceptions to prohibition} SEC. 31. That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this Act, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this Act, shall be, and is hereby, prohibited: _Provided, however_, That, except as regards piratical copies, such prohibition shall not apply: {Sidenote: Works for the blind} (a) To works in raised characters for the use of the blind; {Sidenote: Foreign newspapers or magazines} (b) To a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor, unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization; {Sidenote: Books in foreign languages} (c) To the authorized edition of a book in a foreign language or languages of which only a translation into English has been copyrighted in this country; {Sidenote: Importation of authorized foreign books permitted} (d) To any book published abroad with the authorization of the author or copyright proprietor when imported under the circumstances stated in one of the four subdivisions following, that is to say: {Sidenote: For individual use and not for sale} First. When imported, not more than one copy at one time, for individual use and not for sale; but such privilege of importation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States; {Sidenote: For the use of U. S.} Second. When imported by the authority or for the use of the United States; {Sidenote: For the use of societies, libraries, etc.} Third. When imported, for use and not for sale, not more than one copy of any such book in any one invoice, in good faith, by or for any society or institution incorporated for educational, literary, philosophical, scientific, or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school, or seminary of learning, or for any State, school, college, university, or free public library in the United States; {Sidenote: Libraries purchased en bloc} {Sidenote: Books brought personally into U. S.} Fourth. When such books form parts of libraries or collections purchased en bloc for the use of societies, institutions, or libraries designated in the foregoing paragraph, or form parts of the libraries or personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: {Sidenote: Imported copies not to be used to violate copyright} _Provided_, That copies imported as above may not lawfully be used in any way to violate the rights of the proprietor of the American copyright or annul or limit the copyright protection secured by this Act, and such unlawful use shall be deemed an infringement of copyright. {Sidenote: Seizure of unlawfully imported copies} {Sidenote: Copies of authorized books imported may be returned} SEC. 32. That any and all articles prohibited importation by this Act which are brought into the United States from any foreign country (except in the mails) shall be seized and forfeited by like proceedings as those provided by law for the seizure and condemnation of property imported into the United States in violation of the customs revenue laws. Such articles when forfeited shall be destroyed in such manner as the Secretary of the Treasury or the court, as the case may be, shall direct: _Provided, however_, That all copies of authorized editions of copyright books imported in the mails or otherwise in violation of the provisions of this Act may be exported and returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury, in a written application, that such importation does not involve willful negligence or fraud. {Sidenote: Secretary of Treasury and Postmaster-General to make rules to prevent unlawful importation} SEC. 33. That the Secretary of the Treasury and the Postmaster-General are hereby empowered and required to make and enforce such joint rules and regulations as shall prevent the importation into the United States in the mails of articles prohibited importation by this Act, and may require notice to be given to the Treasury Department, or Post Office Department, as the case may be, by copyright proprietors or injured parties, of the actual or contemplated importation of articles prohibited importation by this Act, and which infringe the rights of such copyright proprietors or injured parties. {Sidenote: Jurisdiction of courts in copyright cases} SEC. 34. That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands. {Sidenote: District in which suit may be brought} SEC. 35. That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found. {Sidenote: Injunctions may be granted} SEC. 36. That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants. {Sidenote: Certified copy of papers filed} SEC. 37. That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office. {Sidenote: Judgments, etc., may be reviewed on appeal or writ of error} SEC. 38. That the orders, judgments, or decrees of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectively. {Sidenote: No criminal proceedings after three years} SEC. 39. That no criminal proceeding shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose. {Sidenote: Full costs shall be allowed} SEC. 40. That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs. {Sidenote: Copyright distinct from property in material object} {Sidenote: Transfer of any copy of copyrighted work permitted} SEC. 41. That the copyright is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained. {Sidenote: Copyright may be assigned, mortgaged, or bequeathed} SEC. 42. That copyright secured under this or previous Acts of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or may be bequeathed by will. {Sidenote: Assignment executed in foreign country to be acknowledged} SEC. 43. That every assignment of copyright executed in a foreign country shall be acknowledged by the assignor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or perform notarial acts. The certificate of such acknowledgement under the hand and official seal of such consular officer or secretary of legation shall be prima facie evidence of the execution of the instrument. {Sidenote: Assignments to be recorded} SEC. 44. That every assignment of copyright shall be recorded in the copyright office within three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, whose assignment has been duly recorded. {Sidenote: Register of copyrights to record assignments} SEC. 45. That the register of copyright shall, upon payment of the prescribed fee, record such assignment, and shall return it to the sender with a certificate of record attached under seal of the copyright office, and upon the payment of the fee prescribed by this Act he shall furnish to any person requesting the same a certified copy thereof under the said seal. {Sidenote: Assignee's name may be substituted in copyright notice} SEC. 46. That when an assignment of the copyright in a specified book or other work has been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act. {Sidenote: Copyright records} SEC. 47. That all records and other things relating to copyrights required by law to be preserved shall be kept and preserved in the copyright office, Library of Congress, District of Columbia, and shall be under the control of the register of copyrights, who shall, under the direction and supervision of the Librarian of Congress, perform all the duties relating to the registration of copyrights. {Sidenote: Register of copyrights and assistant register of copyrights} SEC. 48. That there shall be appointed by the Librarian of Congress a register of copyrights, at a salary of four thousand dollars per annum, and one assistant register of copyrights, at a salary of three thousand dollars per annum, who shall have authority during the absence of the register of copyrights to attach the copyright office seal to all papers issued from the said office and to sign such certificates and other papers as may be necessary. There shall also be appointed by the Librarian such subordinate assistants to the register as may from time to time be authorized by law. {Sidenote: Register of copyrights to deposit and account for fees} {Sidenote: Shall make monthly report of fees} SEC. 49. That the register of copyrights shall make daily deposits in some bank in the District of Columbia, designated for this purpose by the Secretary of the Treasury as a national depository, of all moneys received to be applied as copyright fees, and shall make weekly deposits with the Secretary of the Treasury, in such manner as the latter shall direct, of all copyright fees actually applied under the provisions of this Act, and annual deposits of sums received which it has not been possible to apply as copyright fees or to return to the remitters, and shall also make monthly reports to the Secretary of the Treasury and to the Librarian of Congress of the applied copyright fees for each calendar month, together with a statement of all remittances received, trust funds on hand, moneys refunded, and unapplied balances. {Sidenote: Bond of register of copyrights} SEC. 50. That the register of copyrights shall give bond to the United States in the sum of twenty thousand dollars, in form to be approved by the Solicitor of the Treasury and with sureties satisfactory to the Secretary of the Treasury, for the faithful discharge of his duties. {Sidenote: Annual report of register of copyrights} SEC. 51. That the register of copyrights shall make an annual report to the Librarian of Congress, to be printed in the annual report on the Library of Congress, of all copyright business for the previous fiscal year, including the number and kind of works which have been deposited in the copyright office during the fiscal year, under the provisions of this Act. {Sidenote: Seal of copyright office} SEC. 52. That the seal provided under the Act of July eighth, eighteen hundred and seventy, and at present used in the copyright office, shall continue to be the seal thereof, and by it all papers issued from the copyright office requiring authentication shall be authenticated. {Sidenote: Rules for the registration of copyrights} SEC. 53. That, subject to the approval of the Librarian of Congress, the register of copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act. {Sidenote: Record books} {Sidenote: Entry of copyright} SEC. 54. That the register of copyrights shall provide and keep such record books in the copyright office as are required to carry out the provisions of this Act, and whenever deposit has been made in the copyright office of a copy of any work under the provisions of this Act he shall make entry thereof. {Sidenote: Certificate of registration} {Sidenote: Certificate for book to state receipt of affidavit} {Sidenote: Certificate may be given to any person} {Sidenote: Receipt for copies deposited} SEC. 55. That in the case of each entry the person recorded as the claimant of the copyright shall be entitled to a certificate of registration under seal of the copyright office, to contain his name and address, the title of the work upon which copyright is claimed, the date of the deposit of the copies of such work, and such marks as to class designation and entry number as shall fully identify the entry. In the case of a book the certificate shall also state the receipt of the affidavit as provided by section sixteen of this Act, and the date of the completion of the printing, or the date of the publication of the book, as stated in the said affidavit. The register of copyrights shall prepare a printed form for the said certificate, to be filled out in each case as above provided for, which certificate, sealed with the seal of the copyright office, shall, upon payment of the prescribed fee, be given to any person making application for the same, and the said certificate shall be admitted in any court as prima facie evidence of the facts stated therein. In addition to such certificate the register of copyrights shall furnish, upon request, without additional fee, a receipt for the copies of the work deposited to complete the registration. {Sidenote: Index to copyright registrations} {Sidenote: Catalogue of copyright entries} {Sidenote: Catalogue cards} {Sidenote: Catalogues and indexes prima facie evidence} SEC. 56. That the register of copyrights shall fully index all copyright registrations and assignments and shall print at periodic intervals a catalogue of the titles of articles deposited and registered for copyright, together with suitable indexes, and at stated intervals shall print complete and indexed catalogues for each class of copyright entries, and may thereupon, if expedient, destroy the original manuscript catalogue cards containing the titles included in such printed volumes and representing the entries made during such intervals. The current catalogues of copyright entries and the index volumes herein provided for shall be admitted in any court as prima facie evidence of the facts stated therein as regards any copyright registration. {Sidenote: Distribution of catalogue of copyright entries} {Sidenote: Subscription price} {Sidenote: Superintendent of Documents to receive subscriptions} SEC. 57. That the said printed current catalogues as they are issued shall be promptly distributed by the copyright office to the collectors of customs of the United States and to the postmasters of all exchange offices of receipt of foreign mails, in accordance with revised lists of such collectors of customs and postmasters prepared by the Secretary of the Treasury and the Postmaster-General, and they shall also be furnished to all parties desiring them at a price to be determined by the register of copyrights, not exceeding five dollars per annum for the complete catalogue of copyright entries and not exceeding one dollar per annum for the catalogues issued during the year for any one class of subjects. The consolidated catalogues and indexes shall also be supplied to all persons ordering them at such prices as may be determined to be reasonable, and all subscriptions for the catalogues shall be received by the Superintendent of Public Documents, who shall forward the said publications; and the moneys thus received shall be paid into the Treasury of the United States and accounted for under such laws and Treasury regulations as shall be in force at the time. {Sidenote: Record books, etc., open to inspection} {Sidenote: Copies may be taken of entries in record books} SEC. 58. That the record books of the copyright office, together with the indexes to such record books, and all works deposited and retained in the copyright office, shall be open to public inspection; and copies may be taken of the copyright entries actually made in such record books, subject to such safeguards and regulations as shall be prescribed by the register of copyrights and approved by the Librarian of Congress. {Sidenote: Disposition of copyright deposits} {Sidenote: Preservation of copyright deposits} SEC. 59. That of the articles deposited in the copyright office under the provisions of the copyright laws of the United States or of this Act, the Librarian of Congress shall determine what books and other articles shall be transferred to the permanent collections of the Library of Congress, including the law library, and what other books or articles shall be placed in the reserve collections of the Library of Congress for sale or exchange, or be transferred to other governmental libraries in the District of Columbia for use therein. {Sidenote: Disposal of copyright deposits} {Sidenote: Manuscript copies to be preserved} SEC. 60. That of any articles undisposed of as above provided, together with all titles and correspondence relating thereto, the Librarian of Congress and the register of copyrights jointly shall, at suitable intervals, determine what of these received during any period of years it is desirable or useful to preserve in the permanent files of the copyright office, and, after due notice as hereinafter provided, may within their discretion cause the remaining articles and other things to be destroyed: _Provided_, That there shall be printed in the Catalogue of Copyright Entries from February to November, inclusive, a statement of the years of receipt of such articles and a notice to permit any author, copyright proprietor, or other lawful claimant to claim and remove before the expiration of the month of December of that year anything found which relates to any of his productions deposited or registered for copyright within the period of years stated, not reserved or disposed of as provided for in this Act: _And provided further_, That no manuscript of an unpublished work shall be destroyed during its term of copyright without specific notice to the copyright proprietor of record, permitting him to claim and remove it. {Sidenote: Fees} {Sidenote: Fee for registration} {Sidenote: Fee for certificate} {Sidenote: Fee for recording assignment} {Sidenote: Fee for copy of assignment} {Sidenote: Fee for recording notice of user} {Sidenote: Fee for comparing assignment} {Sidenote: Fee for recording renewal} {Sidenote: Fee for recording transfer} {Sidenote: Fee for search} {Sidenote: Only one registration required} SEC. 61. That the register of copyrights shall receive, and the persons to whom the services designated are rendered shall pay, the following fees: For the registration of any work subject to copyright, deposited under the provisions of this Act, one dollar, which sum is to include a certificate of registration under seal: _Provided_, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents. For recording and certifying any instrument of writing for the assignment of copyright, or any such license specified in section one, subsection (e), or for any copy of such assignment or license, duly certified, if not over three hundred words in length, one dollar; if more than three hundred and less than one thousand words in length, two dollars; if more than one thousand words in length, one dollar additional for each one thousand words or fraction thereof over three hundred words. For recording the notice of user or acquiescence specified in section one, subsection (e), twenty-five cents for each notice if not over fifty words, and an additional twenty-five cents for each additional one hundred words. For comparing any copy of an assignment with the record of such document in the copyright office and certifying the same under seal, one dollar. For recording the extension or renewal of copyright provided for in sections twenty-three and twenty-four of this Act, fifty cents. For recording the transfer of the proprietorship of copyrighted articles, ten cents for each title of a book or other article, in addition to the fee prescribed for recording the instrument of assignment. For any requested search of copyright office records, indexes, or deposits, fifty cents for each full hour of time consumed in making such search: _Provided_, That only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time. {Sidenote: Definitions: "date of publication"} {Sidenote: "Author"} SEC. 62. That in the interpretation and construction of this Act "the date of publication" shall in the case of a work of which copies are reproduced for sale or distribution be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority, and the word "author" shall include an employer in the case of works made for hire. {Sidenote: Repealing clause} SEC. 63. That all laws or parts of laws in conflict with the provisions of this Act are hereby repealed, but nothing in this Act shall effect causes of action for infringement of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law. {Sidenote: Date of enforcement} SEC. 64. That this Act shall go into effect on the first day of July, nineteen hundred and nine. APPROVED, MARCH 4, 1909. 2. PRESIDENT'S PROCLAMATIONS BY THE PRESIDENT OF THE UNITED STATES OF AMERICA A PROCLAMATION Whereas it is provided by the act of Congress of March 4, 1909, entitled "An act to amend and consolidate the acts respecting copyright," that the benefits of said act, excepting the benefits under section 1 (_e_) thereof, as to which special conditions are imposed, shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only upon certain conditions set forth in section 8 of said act, to wit: (_a_) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work: or (_b_) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this act or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto: And whereas it is also provided by said section that "The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time as the purposes of this act may require": And whereas satisfactory evidence has been received that in Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and possessions, Norway, Portugal, Spain, and Switzerland the law permits and since July 1, 1909, has permitted to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of those countries: Now, therefore, I, William Howard Taft, President of the United States of America, do declare and proclaim that one of the alternative conditions specified in section 8, of the act of March 4, 1909, is now fulfilled, and since July 1, 1909, has continuously been fulfilled, in respect to the citizens or subjects of Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and possessions, Norway, Portugal, Spain, and Switzerland, and that the citizens or subjects of the aforementioned countries are and since July 1, 1909, have been entitled to all the benefits of the said act other than the benefits under section 1 (_e_) thereof, as to which the inquiry is still pending. In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington this ninth day of April, in the year of our Lord one thousand nine hundred and ten, and of the Independence of the [SEAL.] United States of America the one hundred and thirty-fourth. WM. H. TAFT. By the President: P. C. KNOX, _Secretary of State_ Luxemburg was added by proclamation of June 29, 1910, and Sweden, May 26, 1911, to go into effect June 1, 1911. A proclamation accepting reciprocal relations with Germany as to mechanical music reproductions was issued December 8, 1910. Similar proclamations under date of June 14, 1911, covered Belgium, Luxemburg and Norway. 3. UNITED STATES SUPREME COURT RULES RULES ADOPTED BY THE SUPREME COURT OF THE UNITED STATES FOR PRACTICE AND PROCEDURE UNDER SECTION 25 OF AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT, APPROVED MARCH 4, 1909. TO GO INTO EFFECT JULY 1, 1909. 1. The existing rules of equity practice, so far as they may be applicable, shall be enforced in proceedings instituted under section twenty-five (25) of the act of March fourth, nineteen hundred and nine, entitled "An act to amend and consolidate the acts respecting copyright." 2. A copy of the alleged infringement of copyright, if actually made, and a copy of the work alleged to be infringed, should accompany the petition, or its absence be explained; except in cases of alleged infringement by the public performance of dramatic and dramatico-musical compositions, the delivery of lectures, sermons, addresses, and so forth, the infringement of copyright upon sculptures and other similar works and in any case where it is not feasible. 3. Upon the institution of any action, suit, or proceeding, or at any time thereafter, and before the entry of final judgment or decree therein, the plaintiff or complainant, or his authorized agent or attorney, may file with the clerk of any court given jurisdiction under section 34 of the act of March 4, 1909, an affidavit stating upon the best of his knowledge, information, and belief, the number and location, as near as may be, of the alleged infringing copies, records, plates, molds, matrices, etc., or other means for making the copies alleged to infringe the copyright, and the value of the same, and with such affidavit shall file with the clerk a bond executed by at least two sureties and approved by the court or a commissioner thereof. 4. Such bond shall bind the sureties in a specified sum, to be fixed by the court, but not less than twice the reasonable value of such infringing copies, plates, records, molds, matrices, or other means for making such infringing copies, and be conditioned for the prompt prosecution of the action, suit or proceeding; for the return of said articles to the defendant, if they or any of them are adjudged not to be infringements, or if the action abates, or is discontinued before they are returned to the defendant; and for the payment to the defendant of any damages which the court may award to him against the plaintiff or complainant. Upon the filing of said affidavit and bond, and the approval of said bond, the clerk shall issue a writ directed to the marshal of the district where the said infringing copies, plates, records, molds, matrices, etc., or other means of making such infringing copies shall be stated in said affidavit to be located, and generally to any marshal of the United States, directing the said marshal to forthwith seize and hold the same subject to the order of the court issuing said writ, or of the court of the district in which the seizure shall be made. 5. The marshal shall thereupon seize said articles or any smaller or larger part thereof he may then or thereafter find, using such force as may be reasonably necessary in the premises, and serve on the defendant a copy of the affidavit, writ, and bond by delivering the same to him personally, if he can be found within the district, of if he can not be found, to his agent, if any, or to the person from whose possession the articles are taken, or if the owner, agent, or such person can not be found within the district by leaving said copy at the usual place of abode of such owner or agent with a person of suitable age and discretion, or at the place where said articles are found, and shall make immediate return of such seizure, or attempted seizure, to the court. He shall also attach to said articles a tag or label stating the fact of such seizure and warning all persons from in any manner interfering therewith. 6. A marshal who has seized alleged infringing articles, shall retain them in his possession, keeping them in a secure place, subject to the order of the court. 7. Within three days after the articles are seized, and a copy of the affidavit, writ and bond are served as hereinbefore provided, the defendant shall serve upon the clerk a notice that he excepts to the amount of the penalty of the bond, or to the sureties of the plaintiff or complainant, or both, otherwise he shall be deemed to have waived all objection to the amount of the penalty of the bond and the sufficiency of the sureties thereon. If the court sustain the exceptions it may order a new bond to be executed by the plaintiff or complainant, or in default thereof within a time to be named by the court, the property to be returned to the defendant. 8. Within ten days after service of such notice, the attorney of the plaintiff or complainant shall serve upon the defendant or his attorney a notice of the justification of the sureties, and said sureties shall justify before the court or a judge thereof at the time therein stated. 9. The defendant, if he does not except to the amount of the penalty of the bond or the sufficiency of the sureties of the plaintiff or complainant, may make application to the court for the return to him of the articles seized, upon filing an affidavit stating all material facts and circumstances tending to show that the articles seized are not infringing copies, records, plates, molds, matrices, or means for making the copies alleged to infringe the copyright. 10. Thereupon the court in its discretion, and after such hearing as it may direct, may order such return upon the filing by the defendant of a bond executed by at least two sureties, binding them in a specified sum to be fixed in the discretion of the court, and conditioned for the delivery of said specified articles to abide the order of the court. The plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond. 11. Upon the granting of such application and the justification of the sureties on the bond, the marshal shall immediately deliver the articles seized to the defendant. 12. Any service required to be performed by any marshal may be performed by any deputy of such marshal. 13. For services in cases arising under this section, the marshal shall be entitled to the same fees as are allowed for similar services in other cases. 4. UNITED STATES COPYRIGHT OFFICE REGULATIONS RULES AND REGULATIONS FOR THE REGISTRATION OF CLAIMS TO COPYRIGHT {Sidenote: Copyright under act} 1. Copyright under the act of Congress entitled: "An act to amend and consolidate the acts respecting copyright," approved March 4, 1909, is ordinarily secured by printing and publishing a copyrightable work with a notice of claim in the form prescribed by the statute. Registration can only be made _after_ such publication, but the statute expressly provides, in certain cases, for registration of manuscript works. WHO MAY SECURE COPYRIGHT {Sidenote: Persons entitled to copyright} 2. The persons entitled by the act to copyright protection for their works are: (1) The _author_ of the work, if he is: (_a_) A citizen of the United States, or (_b_) A resident alien domiciled in the United States at the time of the first publication of his work, or (_c_) A citizen or subject of any country which grants either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens. The existence of reciprocal copyright conditions is determined by presidential proclamation. (2) The _proprietor_ of a work. The word "proprietor" is here used to indicate a person who derives his title to the work from the author. If the author of the work should be a person who could not himself claim the benefit of the copyright act, the proprietor can not claim it. (3) The _executors_, _administrators_ or _assigns_ of the above-mentioned author or proprietor. {Sidenote: Copyright registration} 3. After the publication of any work entitled to copyright, the claimant of copyright should register this claim in the Copyright Office. An action for infringement of copyright can not be maintained in court until the provisions with respect to the deposit of copies and registration of such work shall have been complied with. A certificate of registration is issued to the applicant and duplicates thereof may be obtained on payment of the statutory fee of 50 cents. SUBJECT-MATTER OF COPYRIGHT {Sidenote: Works subject to copyright} 4. The act provides that no copyright shall subsist in the original text of any work published prior to July 1, 1909, which has not been already copyrighted in the United States (sec. 7). Section 5 of the act divides the works for which copyright may be secured into eleven classes, as follows: (_a_) _Books._--This term includes all printed literary works (except dramatic compositions) whether published in the ordinary shape of a book or pamphlet, or printed as a leaflet, card, or single page. The term "book" as used in the law includes tabulated forms of information, frequently called charts; tables of figures showing the results of mathematical computations, such as logarithmic tables, interest, cost, and wage tables, etc.; single poems, and the words of a song when printed and published without music; librettos; descriptions of moving pictures or spectacles; encyclopædias; catalogues; directories; gazetteers and similar compilations; circulars or folders containing information in the form of reading matter other than mere lists of articles, names and addresses, and literary contributions to periodicals or newspapers. {Sidenote: Blank books, etc., not copyrightable} 5. The term "book" can not be applied to-- Blank books for use in business or in carrying out any system of transacting affairs, such as record books, account books, memorandum books, diaries or journals, bank deposit and check books; forms of contracts or leases which do not contain original copyrightable matter; coupons; forms for use in commercial, legal, or financial transactions, which are wholly or partly blank and whose value lies in their usefulness and not in their merit as literary compositions. Directions on scales, or dials, or mathematical or other instruments; puzzles; games; rebuses; labels; wrappers; formulæ on boxes, bottles, and other receptacles of articles for sale or meant to accompany such articles. Advertisements or catalogues which merely set forth the names, prices, and places where articles are for sale. Prefaces or other introductory matter to works not themselves entitled to copyright protection, such as blank books. Calendars are not capable of registration as such, but if they contain copyrightable reading matter or pictures they may be registered either as "books" or as "prints" according to the nature of the copyrightable matter. {Sidenote: Periodicals} 6. (_b_) _Periodicals._--This term includes newspapers, magazines, reviews, and serial publications appearing oftener than once a year; bulletins or proceedings of societies, etc., which appear regularly at intervals of less than a year; and, generally, periodical publications which would be registered as second class matter at the post office. {Sidenote: Lectures, etc.} 7. (_c_) _Lectures_, _sermons_, _addresses_, or similar productions, prepared for oral delivery. {Sidenote: Dramatic compositions, etc.} 8. (_d_) _Dramatic and dramatico-musical compositions_, such as dramas, comedies, operas, operettas and similar works. The designation "dramatic composition" does not include the following: Dances, ballets, or other choregraphic works; tableaux and moving picture shows; stage settings or mechanical devices by which dramatic effects are produced, or "stage business"; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of moving pictures or of settings for the production of moving pictures. (These, however, when printed and published, are registrable as "books.") {Sidenote: Dramatico-musical compositions, etc.} 9. _Dramatico-musical compositions_ include principally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung. {Sidenote: Songs separately published} Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramatico-musical compositions. {Sidenote: Musical compositions} 10. (_e_) _Musical compositions_, including other vocal and all instrumental compositions, with or without words. But when the text is printed alone it should be registered as a "book," not as a "musical composition." "Adaptations" and "arrangements" may be registered as "new works" under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made. {Sidenote: Maps} 11. (_f_) _Maps._--This term includes all cartographical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence. {Sidenote: Works of art} 12. (_g_) _Works of art._--This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.) Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented. {Sidenote: Toys, games, etc.} No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles. {Sidenote: Reproductions of works of art} 13. (_h_) _Reproductions of works of art._--This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element distinct from that of the original work of art which has been reproduced. {Sidenote: Drawings or plastic works} 14. (_i_) _Drawings or plastic works of a scientific or technical character._--This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engineering work, etc. {Sidenote: Photographs} 15. (_j_) _Photographs._--This term covers all positive prints from photographic negatives, including those from moving picture films (the entire series being counted as a single photograph), but not photogravures, half tones, and other photo-engravings. {Sidenote: Prints and pictorial illustrations} 16. (_k_) _Prints and pictorial illustrations._--This term comprises all printed pictures not included in the various other classes enumerated above. {Sidenote: Articles for use not copyrightable} Articles of utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyrightable, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles. Postal cards can not be copyrighted as such. The pictures thereon may be registered as "prints or pictorial illustrations" or as "photographs." Text matter on a postal card may be of such a character that it may be registered as a "book." Mere ornamental scrolls, combinations of lines and colors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation "prints and pictorial illustrations." Trademarks can not be copyrighted nor registered in the Copyright Office. HOW TO SECURE REGISTRATION {Sidenote: Registrable works} 17. Copyright registration may be secured for: (1) Unpublished works. (2) Published works. UNPUBLISHED WORKS _Unpublished works_ are such as have not at the time of registration been printed or reproduced in copies for sale, or been publicly distributed. They include: (_a_) Lectures, sermons, addresses, or similar productions for oral delivery; (_b_) dramatic and musical compositions; (_c_) photographic prints; (_d_) works of art (paintings, drawings, and sculpture), and (_e_) plastic works. In order to secure copyright in such unpublished works, the following steps are necessary: {Sidenote: Registration of unpublished works} 18. (1) In the case of lectures, sermons, addresses, and dramatic and musical compositions, deposit one typewritten or manuscript copy of the work. This copy should be in convenient form, clean and legible, the leaves securely fastened together, and should bear the title of the work corresponding to that given in the application. The entire work in each case should be deposited. It is not sufficient to deposit a mere outline or epitome, or, in the case of a play, a mere scenario or a scenario with the synopsis of the dialogue. {Sidenote: Unpublished photograph} 19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engravings or photogravures are not photographs within the meaning of this provision.) {Sidenote: Photograph of work of art} 20. (3) In the case of works of art, models or designs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photographic reproduction. In each case the deposited article should be accompanied by an application for registration and a money order for the amount of the statutory fee. {Sidenote: Reproduction of unpublished work} 21. Any work which has been registered as an unpublished work, if reproduced in copies for sale or distribution, must be deposited a second time (two copies, accompanied by an application for registration and the statutory fee) in the same manner as is required in the case of works published in the first place. PUBLISHED WORKS DEPOSIT OF COPIES {Sidenote: Deposit of copies} 22. After publication of the work with the copyright notice inscribed, two _complete_ copies of the best edition of the work must be sent to the Copyright Office, with a proper application for registration correctly filled out and a money order for the amount of the legal fee. The statute requires that the deposit of the copyright work shall be made "promptly," which has been defined as "without unnecessary delay." It is not essential, however, that the deposit be made on the very day of publication. {Sidenote: Definition of "published work"} 23. Published works are such as are printed or otherwise produced and "placed on sale, sold, or publicly distributed" (_i. e._, so that all persons who desire copies may obtain them without restriction or condition other than that imposed by the copyright law). Representation on the stage of a play is not a publication of it, nor is the public performance of a musical composition publication. Works intended for sale or general distribution must first be printed with the statutory form of copyright notice inscribed on every copy intended to be circulated. NOTICE OF COPYRIGHT {Sidenote: Form of notice} 24. The ordinary form of copyright notice for books, periodicals, dramatic and musical compositions is "Copyright, 19-- (the year of publication), by A. B. (the name of the claimant)." The name of the claimant printed in the notice should be the real name of a living person, or his trade name if he always uses one (but not a pseudonym or pen-name), or the name of the firm or corporation claiming to own the copyright. The copyright notice should not be printed in the name of one person _for the benefit of another_. The beneficiary's name should be printed in such cases. {Sidenote: Short form of notice} 25. In the case of maps, photographs, reproductions of works of art, prints or pictorial illustrations, works of art, models or designs for works of art, and plastic works of a scientific or technical character, the notice may consist of the letter C, inclosed within a circle, thus ©, accompanied with the initials, monogram, mark, or symbol of the copyright proprietor. But in such cases the name itself of the copyright proprietor must appear on some accessible portion of the work, or on the mount of the picture or map, or on the margin, back, or permanent base or pedestal of the work. {Sidenote: Notice upon each copy} 26. The prescribed notice must be affixed to each copy of the work published or offered for sale in the United States. But no notice is required in the case of foreign books printed abroad seeking _ad interim_ protection in the United States, as provided in section 21 of the copyright act. AMERICAN MANUFACTURE OF COPYRIGHT BOOKS {Sidenote: Works produced in United States} 27. The following works must be manufactured in the United States in order to secure copyright: (_a_) All "books" in the English language and books in any language by a citizen or domiciled resident of the United States must be printed from type set within the limits of the United States, either by hand or by the aid of any kind of type-setting machine, or from plates made within the limits of the United States from type set therein or, if the text of such books be produced by lithographic process or photo-engraving process, then by a process wholly performed within the limits of the United States; and the printing of the text and binding of the book must be performed within the limits of the United States. (_b_) All _illustrations_ within a book produced by lithographic process or photo-engraving process and all _separate lithographs_ or _photo-engravings_ must be produced by lithographic or photo-engraving process wholly performed within the limits of the United States, except when the subjects represented in such illustrations in a book or such separate lithographs or photo-engravings "are located in a foreign country and illustrate a scientific work or reproduce a work of art." {Sidenote: Books by foreign authors} 28. Books by foreign authors in any language other than English are not required to be printed in the United States. {Sidenote: Books printed abroad} In the case of books printed abroad in the English language an _ad interim_ term of copyright of thirty days from registration made in the Copyright Office within thirty days after publication abroad may be secured; but in order to extend the copyright to the full term of protection, an edition of the work must be published in the United States within the thirty days _ad interim_ term, printed or produced within the limits of the United States as required in section 15 of the copyright act. APPLICATION FOR REGISTRATION {Sidenote: Application for registration} 29. The application for copyright registration required to be sent with each work (see No. 20) must state the following facts, without which no registration can be made: (1) The _name_ and address of the claimant of copyright. (2) The _nationality_ of the author of the work. (3) The _title_ of the work. (4) The name and address of person to whom certificate is to be sent. (5) In the case of all _published_ works the actual date (year, month, and day) when the work was published. {Sidenote: Name of author} {Sidenote: Nationality of author} 30. In addition, it is desirable that the application should state for record the name of the author. If, however, the work is published anonymously or under a pseudonym and it is not desired to place on record the real name of the author, this may be omitted. In the case of works made for hire, the employer may be given as the author. By the nationality of the author is meant citizenship, not race; a person naturalized in the United States should be described as an American. An author, a citizen of a foreign country having no copyright relations with the United States, may secure copyright in this country, if at the time of publication of his work he is a permanent resident of the United States. The fact of such permanent residence in the United States should be expressly stated in the application. Care should be taken that the title of the work, the name of the author, and the name of the copyright claimant should be correctly stated in the application, and that they should agree exactly with the same statements made in the work itself. APPLICATION FORMS {Sidenote: Application forms} 31. The Copyright Office has issued the following application forms, which will be furnished on request, and should be used when applying for copyright registration: A1. Book by citizen or resident of the United States. A1. New ed. New edition of book by citizen or resident of the United States. A1. for. Book by citizen or resident of a foreign country, but manufactured in the United States. A2. Edition printed in the United States of a book originally published abroad in the English language. A3. Book by foreign author in foreign language. A4. Ad interim. Book published abroad in the English language. A5. Contribution to a newspaper or periodical. B1. Periodical. For registration of single issue. B2. Periodical. General application and deposit. C. Lecture, sermon, or address. D1. Published dramatic composition. D2. Dramatic composition not reproduced for sale. D3. Dramatico-musical composition. E1. Published musical composition. E2. Musical composition not reproduced for sale. F. Published map. G. Work of art (painting, drawing, or sculpture); or model or design for a work of art. H. Reproduction of a work of art. I. Drawing or plastic work of a scientific or technical character. J1. Photograph published for sale. J2. Photograph not reproduced for sale. K. Print or pictorial illustration. AFFIDAVIT OF MANUFACTURE {Sidenote: Affidavit for book} 32. In the case of books by American authors and all books in the English language the application must be accompanied by an affidavit, showing the following facts: (1) That the copies deposited have been printed from type set within the limits of the United States; or from plates made within the limits of the United States from type set therein; or if the text be produced by lithographic process or photo-engraving process, that such process was wholly performed within the limits of the United States. Stating, in either case, the place and the establishment where such work was done. (2) That the printing of the text has been performed within the limits of the United States, showing the place and the name of the establishment doing the work. (3) That the binding of such books has been performed within the limits of the United States, showing the place and the name of the establishment where the work was done. This can be omitted if the work is unbound. (4) That the completion of the printing of said book was on a stated day, or that the book was published on a given date. {Sidenote: Date of publication} Section 62 of the copyright act defines the date of publication as "the earliest date when copies of the first authorized edition _were placed on sale, sold, or publicly distributed_ by the proprietor of the copyright or under his authority." {Sidenote: Affidavit must be under seal} 33. The affidavit may be made before any officer authorized to administer oaths within the United States who can affix his official seal to the instrument. {Sidenote: Errors by applicants} The applicant and the officer administering the oath for such affidavit are specially requested to make sure that the instrument is properly executed, so as to avoid the delay of having it returned for amendment. Experience shows that among the common errors made by applicants are the following: Failure to write in the "venue," that is, the name of the county and State, and to make sure that the notary's statement agrees. Reciting a corporation or partnership as affiant. Oaths can be taken only by individuals. Failure to state in what capacity the affiant takes the oath, whether as claimant, agent of the claimant, or printer. Where a corporation or firm is the claimant, the affiant should swear as agent. Failure to state the _exact date_ of publication or completion of printing. The month alone is insufficient. Failure to sign the affidavit. The signature should correspond exactly with the name of the affiant stated at the beginning. Corporation or firm names must not appear in this place. Failure to obtain signature of the notary after swearing to the contents. Failure to obtain the seal of the notary. Swearing before an officer not authorized to act in the place stated in the venue. Variance between names and dates as stated in the affidavit and the application. The affidavit must never be made before the day of publication. {Sidenote: By whom affidavit may be made} 34. The affidavit may be made by: (1) The person claiming the copyright; or (2) his duly authorized agent or representative residing in the United States; or (3) the printer who has printed the book. The person making the affidavit must state in which of the above-mentioned capacities he does so. {Sidenote: Book in foreign language} 35. In the case of a foreign author applying for a book in a language other than English, no affidavit is required, as such books are not subject to the manufacturing clause. In the case of a foreign author applying for a book in the English language, the same affidavit must be made as in that of an American author, except where a book is deposited for _ad interim_ protection under section 21. In such cases the affidavit must be filed when the _ad interim_ copyright is sought to be extended to the full term. The affidavit is only required for BOOKS. PERIODICALS (FORM B) {Sidenote: Periodicals} 36. Application should be made in the same manner as for books, depositing two copies, but no affidavit is required. Separate registration is necessary for each number of the periodical published with a notice of copyright, and can only be made after publication. It is not possible to register the title of the periodical in advance of publication. CONTRIBUTIONS TO PERIODICALS (FORM A5) {Sidenote: Contributions to periodicals} 37. If special registration is requested for any contribution to a periodical, _one_ copy of the number of the periodical in which the contribution appears should be deposited promptly after publication. The entire copy should be sent; sending a mere clipping or a page containing the contribution does not comply with the statute. The date of publication of a periodical is not necessarily the date stated on the title-page. The application should state the day on which the issue is "first placed on sale, sold, or publicly distributed," which may be earlier or later than the date printed on the title-page. AD INTERIM APPLICATIONS (FORM A4) {Sidenote: Ad interim copyright} 38. Where a book in the English language has been printed abroad, an _ad interim_ copyright may be secured by depositing in the Copyright Office one complete copy of the foreign edition, with an application containing a request for the reservation and a money order for $1. Such applications should state: (1) Name and nationality of the author; (2) Name and nationality of the copyright claimant; (3) Exact date of original publication abroad. The deposit must be made within thirty days from publication abroad. Whenever, within the thirty days' period of _ad interim_ protection, an edition manufactured in the United States is published, and two copies are deposited, the copyright claim therein may be registered the same as any other book (Form A2). MAILING APPLICATIONS AND COPIES {Sidenote: Address of mail matter} 39. All mail matter intended for the Copyright Office should be addressed to the "Register of Copyrights, Library of Congress, Washington, D. C." No letters dealing with copyright matters should be addressed to individuals in the office. Copyright matter designed for deposit in the Copyright Office will be transmitted by the postmaster free of charge when requested. The postmaster will also, when requested, give a receipt for matter so delivered to him for transmission. No franking label is issued by the Copyright Office for this purpose. FEES {Sidenote: Copyright fees} 40. The fee required to be paid for copyright registration is $1, except that in case of photographs it is only 50 cents when no certificate of registration is desired. {Sidenote: Remittances} All remittances to the Copyright Office should be sent by money order or bank draft. Postage stamps should not be sent for fees or postage. Checks can not be accepted unless certified. Coin or currency inclosed in letter or packages if sent will be at the remitter's risk. Publishers may for their own convenience deposit in the Copyright Office a sum of money in advance against which each registration will be charged. ASSIGNMENTS OF COPYRIGHT {Sidenote: Assignments of copyright} 41. When a copyright has been assigned the instrument in writing signed by the proprietor of the copyright may be filed in this office for record within six calendar months after its execution without the limits of the United States or three calendar months within the United States. After having been recorded the original assignment will be returned to the sender with a sealed certificate of record attached. {Sidenote: Fee for recording assignment} 42. The fee for recording and certifying an assignment is $1 up to 300 words; $2 from 300 to 1,000 words; and another dollar for each additional thousand words or fraction thereof over 300 words. {Sidenote: Name of assignee in claim} 43. After the assignment has been duly recorded, the assignee may substitute his name for that of the assignor in the copyright notice on the work assigned. Such substitution or transfer of ownership will be indexed in this office upon request, at a cost of 10 cents for each work assigned. NOTICE OF USER OF MUSICAL COMPOSITIONS {Sidenote: Notice of user of music} 44. Whenever the owner of the copyright in a musical composition uses such music in phonographs himself or permits anyone else to do so, he must send a notice of such use by him or by any other person to the Copyright Office to be recorded. {Sidenote: Notice in absence of license} 45. Whenever any person in the absence of a license intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce the same mechanically, the act requires that he shall serve notice of such intention upon the copyright proprietor and must also send a duplicate of such notice to the Copyright Office. APPLICATION FOR THE RENEWAL OR EXTENSION OF SUBSISTING COPYRIGHTS {Sidenote: Renewals and extensions} 46. Application for the renewal or extension of a subsisting copyright (except copyright of a composite work) may be filed within one year prior to the expiration of the existing term by: (1) The author of the work if still living; (2) The widow, widower, or children of the author if the author is not living. (3) The author's executor, if such author, widow, widower, or children be not living; (4) If the author, widow, widower, and children are all dead, and the author left no will, then the next of kin. {Sidenote: Renewal for composite work} 47. If the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor is entitled to the privilege of renewal and extension. {Sidenote: Renewal fee} 48. The fee for the recording of the renewal claim is 50 cents. Application for the renewal or extension of copyright can not be recorded in the name of an assignee nor in that of any person not expressly mentioned in section 24 of the act. SEARCHES {Sidenote: Searches} 49. Upon application to the Register of Copyrights search of the records, indexes, or deposits will be made for such information as they may contain relative to copyright claims. Persons desiring searches to be made should state clearly the nature of the work, its title, the name of the claimant of copyright and probable date of entry; in the case of an assignment, the name of the assignor or assignee or both, and the name of the copyright claimant and the title of the music referred to in case of notice of user. {Sidenote: Search fee} The statutory fee for searches is 50 cents for each full hour of time consumed in making such search. AFFIDAVIT OF AMERICAN MANUFACTURE OF A1 COPYRIGHT BOOK. Fill in the required statements to accord with the facts concerning the book named, and draw pen through such statements as are not intended to be made. State of_____________ } } ss. County of_____________ } Impression seal here I,_________________________________________ _________________________________________ ____, {being duly sworn, depose} {do solemnly affirm } and say: (1) That I am the person claiming copyright in the book named herein. (2) That I am the duly authorized agent or representative residing in the United States of the claimant of copyright in the book named herein. (3) That I am the printer of the book named herein. I further depose and say that, in so far as required by the Act of March 4, 1909, the BOOK ENTITLED_________________________________________________ __________________________________________________________________ of which two copies have been deposited, HAS BEEN PRINTED by______ ___________________________at_____________________________________ from {type / plates made in the U. S. from type} set within the limits of the United States by__________________at_____________________________________; that the printing of the text of the said book was completed on___, 19__; that the said book was published on________________, 19_____; that the BINDING of the said book has been performed within the limits of the United States by___________at_____________________________________. (Signature)___________________________________ Subscribed and {sworn to} before me this______day of________, 19__. {affirmed} _________________________________________ Place seal at top of page _________________________________________ [OVER] A1 | * Name of claimant | 2 c. rec'd__________ | ______________________________________|_____________________ Author and title | Affidavit | rec'd___________ ______________________________________| | Cl. A, XXc. No.____ ______________________________________| Leave all above these lines blank | $____Cash No._______ ============================================================ APPLICATION FOR COPYRIGHT--BOOK BY CITIZEN OR RESIDENT OF THE UNITED STATES. REGISTER OF COPYRIGHTS, WASHINGTON, D. C. ________Date. Of the BOOK named herein, first published after June 30, 1909, TWO complete copies of the best edition published on the date stated herein are hereby deposited to secure copyright, accompanied by the AFFIDAVIT required by section 16 of the Act of March 4, 1909, that the book has been produced in accordance with the manufacturing provisions specified in section 15 of the said Act. $1 (statutory fee for registration) is also inclosed. The copyright is claimed by the undersigned: Name and address of {_________________________________________________ copyright claimant {_________________________________________________ Author or authors_______________________________________________________________ If the work is anonymous or pseudonymous, it is not obligatory to state the name of the author. ====================================================================== Title of book_________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ____vol.____ Price, $____. Date of publication____________ [Must be [Date when placed on sale, sold, or publicly distributed.] exactly stated] Send certificate of {_________________________________________________ registration to {_________________________________________________ NOTE.--This form is to be used only for BOOKS by CITIZENS or RESIDENTS of the United States. A separate application card must be used for each separate WORK. No registration can be made unless copies are accompanied with a properly filled out application card, statutory fee, and the required AFFIDAVIT. --> Failure to deposit copies bars suit for infringement and, if deposit of copies is not made after "actual notice," involves a fine of $100, the payment of twice the value of the book, and the COPYRIGHT BECOMES VOID. (OVER) 5. U. S. TREASURY AND POST OFFICE REGULATIONS (T. D. 31754.) TREASURY DEPARTMENT, _July 17, 1911_. _Collectors and other officers of the customs:_ The following sections of the copyright law, approved March 4, 1909, effective July 1, 1909, together with the regulations made in pursuance thereof, are published for the information and guidance of customs officers and others concerned: [Here follow secs. 15, 30, 31, 32, 33, 18, as given in preceding pages.] The register of copyrights is required by this act to print at periodic intervals a catalogue of the titles of articles deposited and registered for copyright, which printed catalogues, as they are issued, will be distributed to the collectors of customs of the United States and to the postmasters of all exchange offices of receipt of foreign mails. REGULATIONS Under the copyright act the following articles are prohibited importation: 1. Piratical copies of any work copyrighted in the United States. By the term "piratical" is meant the printing, reprinting, publishing, copying, or reproducing without authority of the copyright proprietor of any article legally copyrighted and on which the copyright is still in force. 2. Articles bearing a false notice of copyright when there is no existing copyright thereon in the United States. 3. Authorized foreign reprints of books by an American author copyrighted in the United States. 4. Authorized copies of any book copyrighted in the United States not produced in accordance with the manufacturing provisions of section 15 of the copyright act, except such as are exempted in the said section 15 and section 31 of the act. All books on which there is an existing copyright in the United States are prohibited importation unless produced in accordance with the manufacturing provision of section 15, whether copyrighted under this act or previous acts. (Opinion of the Attorney General, T. D. 30136, Nov. 24, 1909.) Copyrighted books produced in accordance with the manufacturing provisions of section 16 of the copyright act, when exported and rebound abroad may be admitted to entry on their return to the United States. (Opinion of the Attorney-General, T. D. 30414.) As copyrighted books are required to be printed and bound in the United States, evidence should be required on entry that such books were exported in a bound condition and not as loose sheets, and that the printing and binding were both performed within the limits of the United States. Imported articles found to bear a false notice of copyright will be detained and forfeiture proceedings instituted as provided in Schedule 32. If satisfactory evidence is not produced to the collector that such imported books were produced in accordance with the manufacturing provisions of section 15, or are exempt therefrom, the books will be seized and forfeiture proceedings instituted as provided in section 32. Forfeiture proceedings instituted under the copyright act will be conducted in the same manner as in case of merchandise seized for violation of the customs laws, section 32, supra. (Arts. 1266 to 1269, Customs Regulations, 1908.) Authorized editions of copyright books imported through the mails or otherwise in violation of the copyright act may, under customs supervision, be returned to the country of exportation whenever it is shown in a written application to the satisfaction of the Secretary of the Treasury that such importation was not due to willful negligence or fraud. (Sec. 32, _supra_.) In any case in which a customs officer is in doubt as to whether an article is prohibited importation under the copyright act the articles should be detained and the facts reported to the department for instruction. FRANKLIN MACVEAGH, _Secretary_. JOINT REGULATIONS Governing treatment of letters and packages received in the mails from foreign countries containing or supposed to contain articles prohibited importation by the copyright act of March 4, 1909. The "Joint regulations governing the treatment of dutiable and supposed dutiable articles received in the mails from foreign countries" are also applicable in the treatment of articles which contain or which are supposed to contain matter prohibited importation by the copyright act, except as hereinafter modified; _Unsealed_ correspondence and packages (registered and unregistered) of all kinds which upon examination prove to contain articles prohibited importation by the copyright act shall be retained by customs officers, who will notify the addressee of the facts of the case. If an application is not made within a reasonable time to the Secretary of the Treasury for permission to return such articles to the country of export, the customs officers shall take appropriate steps to forfeit the articles as provided in section 32 of the copyright act. _Sealed_ articles supposed to contain matter prohibited importation by the copyright act must be appropriately marked to indicate that fact at the exchange office of receipt. The same conditions shall apply in regard to the marking, opening, and disposition of such sealed articles by the addressee or authorized agent as are required in the case of the opening and treatment of sealed "Supposed liable to customs duty" pieces. If the customs officer finds an article contains matter prohibited importation by the copyright act, he shall notify the addressee of the facts through the postmaster at the office of delivery. If an application is not then made within a reasonable time to the Secretary of the Treasury for permission to return the article to the country of export, the customs officer shall take appropriate steps to forfeit the matter as provided in section 32 of the copyright act. Receipt should be taken for articles submitted to customs officials as prohibited importation under the copyright law and proper record made on the Post Office records of the disposition of such articles as are not returned to be disposed of through the mails. Notice of actual or contemplated illegal importations through the mails should be given to the Secretary of the Treasury or the Postmaster General. On receipt of such notices either by the Secretary of the Treasury or the Postmaster General instructions will be promptly issued. FRANKLIN MACVEAGH, _Secretary of the Treasury_. FRANK H. HITCHCOCK, _Postmaster General_. II BRITISH EMPIRE: COPYRIGHT PROVISIONS 6. BRITISH COPYRIGHT ACT, 1911 AN ACT TO AMEND AND CONSOLIDATE THE LAW RELATING TO COPYRIGHT [16th December 1911.] (2 GEORGE V, CHAPTER 46) Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-- PART I. IMPERIAL COPYRIGHT. _Rights._ {Sidenote: Copyright} 1.--(1) Subject to the provisions of this Act, copyright shall subsist throughout the parts of His Majesty's dominions to which this Act extends for the term hereinafter mentioned in every original literary dramatic musical and artistic work, if-- (_a_) in the case of a published work, the work was first published within such parts of His Majesty's dominions as aforesaid; and (_b_) in the case of an unpublished work, the author was at the date of the making of the work a British subject or resident within such parts of His Majesty's dominions as aforesaid; but in no other works, except so far as the protection conferred by this Act is extended by Orders in Council thereunder relating to self-governing dominions to which this Act does not extend and to foreign countries. (2) For the purposes of this Act, "copyright" means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work or any substantial part thereof; and shall include the sole right,-- (_a_) to produce, reproduce, perform, or publish any translation of the work; (_b_) in the case of a dramatic work, to convert it into a novel or other non-dramatic work; (_c_) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise; (_d_) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered, and to authorize any such acts as aforesaid. (3) For the purposes of this Act, publication, in relation to any work, means the issue of copies of the work to the public, and does not include the performance in public of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work, or the construction of an architectural work of art, but, for the purposes of this provision, the issue of photographs and engravings of works of sculpture and architectural works of art shall not be deemed to be publication of such works. {Sidenote: Infringement of copyright} 2.--(1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright: Provided that the following acts shall not constitute an infringement of copyright:-- (i) Any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary: (ii) Where the author of an artistic work is not the owner of the copyright therein, the use by the author of any mould, cast, sketch, plan, model, or study made by him for the purpose of the work, provided that he does not thereby repeat or imitate the main design of that work: (iii) The making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situated in a public place or building, or the making or publishing of paintings, drawings, engravings, or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art: (iv) The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of schools, and so described in the title and in any advertisements issued by the publisher, of short passages from published literary works not themselves published for the use of schools in which copyright subsists: Provided that not more than two of such passages from works by the same author are published by the same publisher within five years, and that the source from which such passages are taken is acknowledged: (v) The publication in a newspaper of a report of a lecture delivered in public, unless the report is prohibited by conspicuous written or printed notice affixed before and maintained during the lecture at or about the main entrance of the building in which the lecture is given, and, except whilst the building is being used for public worship, in a position near the lecturer; but nothing in this paragraph shall affect the provisions in paragraph (i) as to newspaper summaries: (vi) The reading or recitation in public by one person of any reasonable extract from any published work. (2) Copyright in a work shall also be deemed to be infringed by any person who-- (_a_) sells or lets for hire, or by way of trade exposes or offers for sale or hire; or (_b_) distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright; or (_c_) by way of trade exhibits in public; or (_d_) imports for sale or hire into any part of His Majesty's dominions to which this Act extends, any work which to his knowledge infringes copyright or would infringe copyright if it had been made within the part of His Majesty's dominions in or into which the sale or hiring, exposure, offering for sale or hire, distribution, exhibition, or importation took place. (3) Copyright in a work shall also be deemed to be infringed by any person who for his private profit permits a theatre or other place of entertainment to be used for the performance in public of the work without the consent of the owner of the copyright, unless he was not aware, and had no reasonable ground for suspecting, that the performance would be an infringement of copyright. {Sidenote: Term of copyright} 3. The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author and a period of fifty years after his death: Provided that at any time after the expiration of twenty-five years, or in the case of a work in which copyright subsists at the passing of this Act thirty years, from the death of the author of a published work, copyright in the work shall not be deemed to be infringed by the reproduction of the work for sale if the person reproducing the work proves that he has given the prescribed notice in writing of his intention to reproduce the work, and that he has paid in the prescribed manner to, or for the benefit of, the owner of the copyright royalties in respect of all copies of the work sold by him calculated at the rate of ten per cent. on the price at which he publishes the work; and, for the purposes of this proviso, the Board of Trade may make regulations prescribing the mode in which notices are to be given, and the particulars to be given in such notices, and the mode, time, and frequency of the payment of royalties, including (if they think fit) regulations requiring payment in advance or otherwise securing the payment of royalties. {Sidenote: Compulsory licences} 4. If at any time after the death of the author of a literary, dramatic, or musical work which has been published or performed in public a complaint is made to the Judicial Committee of the Privy Council that the owner of the copyright in the work has refused to republish or to allow the republication of the work or has refused to allow the performance in public of the work, and that by reason of such refusal the work is withheld from the public, the owner of the copyright may be ordered to grant a licence to reproduce the work or perform the work in public, as the case may be, on such terms and subject to such conditions as the Judicial Committee may think fit. {Sidenote: Ownership of copyright, &c.} 5.--(1) Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that-- (_a_) where, in the case of an engraving, photograph, or portrait, the plate or other original was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement to the contrary, the person by whom such plate or other original was ordered shall be the first owner of the copyright; and (_b_) where the author was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine, or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine, or similar periodical. (2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to the United Kingdom or any self-governing dominion or other part of His Majesty's dominions to which this Act extends, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent: Provided that, where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him (otherwise than by will) after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void, but nothing in this proviso shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work. (3) Where, under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copyright, the assignee as respects the right so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and the provisions of this Act shall have effect accordingly. _Civil Remedies._ {Sidenote: Civil remedies for infringement of copyright} 6.--(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction or interdict, damages, accounts, and otherwise, as are or may be conferred by law for the infringement of a right. (2) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the absolute discretion of the Court. (3) In any action for infringement of copyright in any work, the work shall be presumed to be a work in which copyright subsists and the plaintiff shall be presumed to be the owner of the copyright, unless the defendant puts in issue the existence of the copyright, or, as the case may be, the title of the plaintiff, and where any such question is in issue, then-- (_a_) if a name purporting to be that of the author of the work is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the author of the work; (_b_) if no name is so printed or indicated, or if the name so printed or indicated is not the author's true name or the name by which he is commonly known, and a name purporting to be that of the publisher or proprietor of the work is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the owner of the copyright in the work for the purposes of proceedings in respect of the infringement of copyright therein. {Sidenote: Rights of owner against persons possessing or dealing with infringing copies, &c.} 7. All infringing copies of any work in which copyright subsists, or of any substantial part thereof, and all plates used or intended to be used for the production of such infringing copies, shall be deemed to be the property of the owner of the copyright, who accordingly may take proceedings for the recovery of the possession thereof or in respect of the conversion thereof. {Sidenote: Exemption of innocent infringer from liability to pay damages, &c.} 8. Where proceedings are taken in respect of the infringement of the copyright in any work and the defendant in his defence alleges that he was not aware of the existence of the copyright in the work, the plaintiff shall not be entitled to any remedy other than an injunction or interdict in respect of the infringement if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for suspecting that copyright subsisted in the work. {Sidenote: Restriction on remedies in the case of architecture} 9.--(1) Where the construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work has been commenced, the owner of the copyright shall not be entitled to obtain an injunction or interdict to restrain the construction of such building or structure or to order its demolition. (2) Such of the other provisions of this Act as provide that an infringing copy of a work shall be deemed to be the property of the owner of the copyright, or as impose summary penalties, shall not apply in any case to which this section applies. {Sidenote: Limitation of actions} 10. An action in respect of infringement of copyright shall not be commenced after the expiration of three years next after the infringement. _Summary Remedies._ {Sidenote: Penalties for dealing with infringing copies, &c.} 11.--(1) If any person knowingly-- (_a_) makes for sale or hire any infringing copy of a work in which copyright subsists; or (_b_) sells or lets for hire, or by way of trade exposes or offers for sale or hire any infringing copy of any such work; or (_c_) distributes infringing copies of any such work either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright; or (_d_) by way of trade exhibits in public any infringing copy of any such work; or (_e_) imports for sale or hire into the United Kingdom any infringing copy of any such work: he shall be guilty of an offence under this Act and be liable on summary conviction to a fine not exceeding forty shillings for every copy dealt with in contravention of this section, but not exceeding fifty pounds in respect of the same transaction; or, in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months. (2) If any person knowingly makes or has in his possession any plate for the purpose of making infringing copies of any work in which copyright subsists, or knowingly and for his private profit causes any such work to be performed in public without the consent of the owner of the copyright, he shall be guilty of an offence under this Act, and be liable on summary conviction to a fine not exceeding fifty pounds, or, in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months. (3) The court before which any such proceedings are taken may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies or plates for the purpose of making infringing copies, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. {Sidenote: 2 Edw. 7. c. 15.} {Sidenote: 6 Edw. 7. c. 36.} (4) Nothing in this section shall, as respects musical works, affect the provisions of the Musical (Summary Proceedings) Copyright Act, 1902, or the Musical Copyright Act, 1906. {Sidenote: Appeals to quarter sessions} 12. Any person aggrieved by a summary conviction of an offence under the foregoing provisions of this Act may in England and Ireland appeal to a court of quarter sessions and in Scotland under and in terms of the Summary Jurisdiction (Scotland) Acts. {Sidenote: Extent of provisions as to summary remedies} 13. The provisions of this Act with respect to summary remedies shall extend only to the United Kingdom. _Importation of Copies._ {Sidenote: Importation of copies} {Sidenote: 39 & 40 Vict. c. 36.} 14.--(1) Copies made out of the United Kingdom of any work in which copyright subsists which if made in the United Kingdom would infringe copyright, and as to which the owner of the copyright gives notice in writing by himself or his agent to the Commissioners of Customs and Excise, that he is desirous that such copies should not be imported into the United Kingdom, shall not be so imported, and shall, subject to the provisions of this section, be deemed to be included in the table of prohibitions and restrictions contained in section forty-two of the Customs Consolidation Act, 1876, and that section shall apply accordingly. (2) Before detaining any such copies or taking any further proceedings with a view to the forfeiture thereof under the law relating to the Customs, the Commissioners of Customs and Excise may require the regulations under this section, whether as to information, conditions, or other matters, to be complied with, and may satisfy themselves in accordance with those regulations that the copies are such as are prohibited by this section to be imported. (3) The Commissioners of Customs and Excise may make regulations, either general or special, respecting the detention and forfeiture of copies the importation of which is prohibited by this section, and the conditions, if any, to be fulfilled before such detention and forfeiture, and may, by such regulations, determine the information, notices, and security to be given, and the evidence requisite for any of the purposes of this section, and the mode of verification of such evidence. (4) The regulations may apply to copies of all works the importation of copies of which is prohibited by this section, or different regulations may be made respecting different classes of such works. (5) The regulations may provide for the informant reimbursing the Commissioners of Customs and Excise all expenses and damages incurred in respect of any detention made on his information, and of any proceedings consequent on such detention; and may provide for notices under any enactment repealed by this Act being treated as notices given under this section. (6) The foregoing provisions of this section shall have effect as if they were part of the Customs Consolidation Act, 1876: Provided that, notwithstanding anything in that Act, the Isle of Man shall not be treated as part of the United Kingdom for the purposes of this section. (7) This section shall, with the necessary modifications, apply to the importation into a British possession to which this Act extends of copies of works made out of that possession. _Delivery of Books to Libraries._ {Sidenote: Delivery of copies to British Museum and other libraries} 15.--(1) The publisher of every book published in the United Kingdom shall, within one month after the publication, deliver, at his own expense, a copy of the book to the trustees of the British Museum, who shall give a written receipt for it. (2) He shall also, if written demand is made before the expiration of twelve months after publication, deliver within one month after receipt of that written demand or, if the demand was made before publication, within one month after publication, to some depôt in London named in the demand a copy of the book for, or in accordance with the directions of, the authority having the control of each of the following libraries, namely: the Bodleian Library, Oxford, the University Library, Cambridge, the Library of the Faculty of Advocates at Edinburgh, and the Library of Trinity College, Dublin, and subject to the provisions of this section the National Library of Wales. In the case of an encyclopædia, newspaper, review, magazine, or work published in a series of numbers or parts, the written demand may include all numbers or parts of the work which may be subsequently published. (3) The copy delivered to the trustees of the British Museum shall be a copy of the whole book with all maps and illustrations belonging thereto, finished and coloured in the same manner as the best copies of the book are published, and shall be bound, sewed, or stitched together, and on the best paper on which the book is printed. (4) The copy delivered for the other authorities mentioned in this section shall be on the paper on which the largest number of copies of the book is printed for sale, and shall be in the like condition as the books prepared for sale. (5) The books of which copies are to be delivered to the National Library of Wales shall not include books of such classes as may be specified in regulations to be made by the Board of Trade. (6) If a publisher fails to comply with this section, he shall be liable on summary conviction to a fine not exceeding five pounds and the value of the book, and the fine shall be paid to the trustees or authority to whom the book ought to have been delivered. (7) For the purposes of this section, the expression "book" includes every part or division of a book, pamphlet, sheet of letterpress, sheet of music, map, plan, chart or table separately published, but shall not include any second or subsequent edition of a book unless such edition contains additions or alterations either in the letterpress or in the maps, prints, or other engravings belonging thereto. _Special Provisions as to certain Works._ {Sidenote: Works of joint authors} 16.--(1) In the case of a work of joint authorship, copyright shall subsist during the life of the author who first dies and for a term of fifty years after his death, or during the life of the author who dies last, whichever period is the longer, and references in this Act to the period after the expiration of any specified number of years from the death of the author shall be construed as references to the period after the expiration of the like number of years from the death of the author who dies first or after the death of the author who dies last, whichever period may be the shorter, and in the provisions of this Act with respect to the grant of compulsory licences a reference to the date of the death of the author who dies last shall be substituted for the reference to the date of the death of the author. (2) Where, in the case of a work of joint authorship, some one or more of the joint authors do not satisfy the conditions conferring copyright laid down by this Act, the work shall be treated for the purposes of this Act as if the other author or authors had been the sole author or authors thereof: Provided that the term of the copyright shall be the same as it would have been if all the authors had satisfied such conditions as aforesaid. (3) For the purposes of this Act, "a work of joint authorship" means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors. (4) Where a married woman and her husband are joint authors of a work the interest of such married woman therein shall be her separate property. {Sidenote: Posthumous works} 17.--(1) In the case of a literary dramatic or musical work, or an engraving, in which copyright subsists at the date of the death of the author or, in the case of a work of joint authorship, at or immediately before the date of the death of the author who dies last, but which has not been published, nor, in the case of a dramatic or musical work, been performed in public, nor, in the case of a lecture, been delivered in public, before that date, copyright shall subsist till publication, or performance or delivery in public, whichever may first happen, and for a term of fifty years thereafter, and the proviso to section three of this Act shall, in the case of such a work, apply as if the author had died at the date of such publication or performance or delivery in public as aforesaid. (2) The ownership of an author's manuscript after his death, where such ownership has been acquired under a testamentary disposition made by the author and the manuscript is of a work which has not been published nor performed in public nor delivered in public, shall be prima facie proof of the copyright being with the owner of the manuscript. {Sidenote: Provisions as to Government publications} 18. Without prejudice to any rights or privileges of the Crown, where any work has, whether before or after the commencement of this Act, been prepared or published by or under the direction or control of His Majesty or any Government department, the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work. {Sidenote: Provisions as to mechanical instruments} 19.--(1) Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works, but the term of copyright shall be fifty years from the making of the original plate from which the contrivance was directly or indirectly derived, and the person who was the owner of such original plate at the time when such plate was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts. (2) It shall not be deemed to be an infringement of copyright in any musical work for any person to make within the parts of His Majesty's dominions to which this Act extends records, perforated rolls, or other contrivances by means of which the work may be mechanically performed, if such person proves-- (_a_) that such contrivances have previously been made by, or with the consent or acquiescence of, the owner of the copyright in the work; and (_b_) that he has given the prescribed notice of his intention to make the contrivances, and has paid in the prescribed manner to, or for the benefit of, the owner of the copyright in the work royalties in respect of all such contrivances sold by him, calculated at the rate hereinafter mentioned: Provided that-- (i) nothing in this provision shall authorize any alterations in, or omissions from, the work reproduced, unless contrivances reproducing the work subject to similar alterations and omissions have been previously made by, or with the consent or acquiescence of, the owner of the copyright, or unless such alterations or omissions are reasonably necessary for the adaptation of the work to the contrivances in question; and (ii) for the purposes of this provision, a musical work shall be deemed to include any words so closely associated therewith as to form part of the same work, but shall not be deemed to include a contrivance by means of which sounds may be mechanically reproduced. (3) The rate at which such royalties as aforesaid are to be calculated shall-- (_a_) in the case of contrivances sold within two years after the commencement of this Act by the person making the same, be two and one-half per cent.; and (_b_) in the case of contrivances sold as aforesaid after the expiration of that period, five per cent. on the ordinary retail selling price of the contrivance calculated in the prescribed manner, so however that the royalty payable in respect of a contrivance shall, in no case, be less than a halfpenny for each separate musical work in which copyright subsists reproduced thereon, and, where the royalty calculated as aforesaid includes a fraction of a farthing, such fraction shall be reckoned as a farthing: Provided that, if, at any time after the expiration of seven years from the commencement of this Act, it appears to the Board of Trade that such rate as aforesaid is no longer equitable, the Board of Trade may, after holding a public inquiry, make an order either decreasing or increasing that rate to such extent as under the circumstances may seem just, but any order so made shall be provisional only and shall not have any effect unless and until confirmed by Parliament; but, where an order revising the rate has been so made and confirmed, no further revision shall be made before the expiration of fourteen years from the date of the last revision. (4) If any such contrivance is made reproducing two or more different works in which copyright subsists and the owners of the copyright therein are different persons, the sums payable by way of royalties under this section shall be apportioned amongst the several owners of the copyright in such proportions as, failing agreement, may be determined by arbitration. (5) When any such contrivances by means of which a musical work may be mechanically performed have been made, then, for the purposes of this section, the owner of the copyright in the work shall, in relation to any person who makes the prescribed inquiries, be deemed to have given his consent to the making of such contrivances if he fails to reply to such inquiries within the prescribed time. (6) For the purposes of this section, the Board of Trade may make regulations prescribing anything which under this section is to be prescribed, and prescribing the mode in which notices are to be given and the particulars to be given in such notices, and the mode, time, and frequency of the payment of royalties, and any such regulations may, if the Board think fit, include regulations requiring payment in advance or otherwise securing the payment of royalties. (7) In the case of musical works published before the commencement of this Act, the foregoing provisions shall have effect, subject to the following modifications and additions:-- (_a_) The conditions as to the previous making by, or with the consent or acquiescence of, the owner of the copyright in the work, and the restrictions as to alterations in or omissions from the work, shall not apply: (_b_) The rate of two and one-half per cent. shall be substituted for the rate of five per cent. as the rate at which royalties are to be calculated, but no royalties shall be payable in respect of contrivances sold before the first day of July, nineteen hundred and thirteen, if contrivances reproducing the same work had been lawfully made, or placed on sale, within the parts of His Majesty's dominions to which this Act extends before the first day of July, nineteen hundred and ten: (_c_) Notwithstanding any assignment made before the passing of this Act of the copyright in a musical work, any rights conferred by this Act in respect of the making, or authorising the making, of contrivances by means of which the work may be mechanically performed shall belong to the author or his legal personal representatives and not to the assignee, and the royalties aforesaid shall be payable to, and for the benefit of, the author of the work or his legal personal representatives: (_d_) The saving contained in this Act of the rights and interests arising from, or in connexion with, action taken before the commencement of this Act shall not be construed as authorizing any person who has made contrivances by means of which the work may be mechanically performed to sell any such contrivances, whether made before or after the passing of this Act, except on the terms and subject to the conditions laid down in this section: (_e_) Where the work is a work on which copyright is conferred by an Order in Council relating to a foreign country, the copyright so conferred shall not, except to such extent as may be provided by the Order, include any rights with respect to the making of records, perforated rolls, or other contrivances by means of which the work may be mechanically performed. (8) Notwithstanding anything in this Act, where a record, perforated roll, or other contrivance by means of which sounds may be mechanically reproduced has been made before the commencement of this Act, copyright shall, as from the commencement of this Act, subsist therein in like manner and for the like term as if this Act had been in force at the date of the making of the original plate from which the contrivance was directly or indirectly derived. Provided that-- (i) the person who, at the commencement of this Act, is the owner of such original plate shall be the first owner of such copyright; and (ii) nothing in this provision shall be construed as conferring copyright in any such contrivance if the making thereof would have infringed copyright in some other such contrivance, if this provision had been in force at the time of the making of the first-mentioned contrivance. {Sidenote: Provision as to political speeches} 20. Notwithstanding anything in this Act, it shall not be an infringement of copyright in an address of a political nature delivered at a public meeting to publish a report thereof in a newspaper. {Sidenote: Provisions as to photographs} 21. The term for which copyright shall subsist in photographs shall be fifty years from the making of the original negative from which the photograph was directly or indirectly derived, and the person who was owner of such negative at the time when such negative was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts. {Sidenote: Provisions as to designs registrable under 7 Edw. 7. c. 29} 22.--(1) This Act shall not apply to designs capable of being registered under the Patents and Designs Act, 1907, except designs which, though capable of being so registered, are not used or intended to be used as models or patterns to be multiplied by any industrial process. (2) General rules under section eighty-six of the Patents and Designs Act, 1907, may be made for determining the conditions under which a design shall be deemed to be used for such purposes as aforesaid. {Sidenote: Works of foreign authors first published in parts of His Majesty's dominions to which Act extends} 23. If it appears to His Majesty that a foreign country does not give, or has not undertaken to give, adequate protection to the works of British authors, it shall be lawful for His Majesty by Order in Council to direct that such of the provisions of this Act as confer copyright on works first published within the parts of His Majesty's dominions to which this Act extends, shall not apply to works published after the date specified in the Order, the authors whereof are subjects or citizens of such foreign country, and are not resident in His Majesty's dominions, and thereupon those provisions shall not apply to such works. {Sidenote: Existing works} 24.--(1) Where any person is immediately before the commencement of this Act entitled to any such right in any work as is specified in the first column of the First Schedule to this Act, or to any interest in such a right, he shall, as from that date, be entitled to the substituted right set forth in the second column of that schedule, or to the same interest in such a substituted right, and to no other right or interest, and such substituted right shall subsist for the term for which it would have subsisted if this Act had been in force at the date when the work was made and the work had been one entitled to copyright thereunder: Provided that-- (_a_) if the author of any work in which any such right as is specified in the first column of the First Schedule to this Act subsists at the commencement of this Act has, before that date, assigned the right or granted any interest therein for the whole term of the right, then at the date when, but for the passing of this Act, the right would have expired the substituted right conferred by this section shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before the commencement of this Act and then subsisting shall determine; but the person who immediately before the date at which the right would so have expired was the owner of the right or interest shall be entitled at his option either-- (i) on giving such notice as hereinafter mentioned, to an assignment of the right or the grant of a similar interest therein for the remainder of the term of the right for such consideration as, failing agreement, may be determined by arbitration; or (ii) without any such assignment or grant, to continue to reproduce or perform the work in like manner as theretofore subject to the payment, if demanded by the author within three years after the date at which the right would have so expired, of such royalties to the author as, failing agreement, may be determined by arbitration, or, where the work is incorporated in a collective work and the owner of the right or interest is the proprietor of that collective work, without any such payment; The notice above referred to must be given not more than one year nor less than six months before the date at which the right would have so expired, and must be sent by registered post to the author, or, if he cannot with reasonable diligence be found, advertised in the London Gazette and in two London newspapers: (_b_) where any person has, before the twenty-sixth day of July nineteen hundred and ten, taken any action whereby he has incurred any expenditure or liability in connexion with the reproduction or performance of any work in a manner which at the time was lawful, or for the purpose of or with a view to the reproduction or performance of a work at a time when such reproduction or performance would, but for the passing of this Act, have been lawful, nothing in this section shall diminish or prejudice any rights or interest arising from or in connexion with such action which are subsisting and valuable at the said date, unless the person who by virtue of this section becomes entitled to restrain such reproduction or performance agrees to pay such compensation as, failing agreement, may be determined by arbitration. (2) For the purposes of this section, the expression "author" includes the legal personal representatives of a deceased author. (3) Subject to the provisions of section nineteen subsections (7) and (8) and of section thirty-three of this Act, copyright shall not subsist in any work made before the commencement of this Act, otherwise than under, and in accordance with, the provisions of this section. _Application to British Possessions._ {Sidenote: Application of Act to British dominions} 25.--(1) This Act, except such of the provisions thereof as are expressly restricted to the United Kingdom, shall extend throughout His Majesty's dominions: Provided that it shall not extend to a self-governing dominion, unless declared by the Legislature of that dominion to be in force therein either without any modifications or additions, or with such modifications and additions relating exclusively to procedure and remedies, or necessary to adapt this Act to the circumstances of the dominion, as may be enacted by such Legislature. (2) If the Secretary of State certifies by notice published in the London Gazette that any self-governing dominion has passed legislation under which works, the authors whereof were at the date of the making of the works British subjects resident elsewhere than in the dominion or (not being British subjects) were resident in the parts of His Majesty's dominions to which this Act extends, enjoy within the dominion rights substantially identical with those conferred by this Act, then, whilst such legislation continues in force, the dominion shall, for the purposes of the rights conferred by this Act, be treated as if it were a dominion to which this Act extends; and it shall be lawful for the Secretary of State to give such a certificate as aforesaid, notwithstanding that the remedies for enforcing the rights, or the restrictions on the importation of copies of works, manufactured in a foreign country, under the law of the dominion, differ from those under this Act. {Sidenote: Legislative powers of self-governing dominions} 26.--(1) The Legislature of any self-governing dominion may, at any time, repeal all or any of the enactments relating to copyright passed by Parliament (including this Act) so far as they are operative within that dominion: Provided that no such repeal shall prejudicially affect any legal rights existing at the time of the repeal, and that, on this Act or any part thereof being so repealed by the Legislature of a self-governing dominion, that dominion shall cease to be a dominion to which this Act extends. (2) In any self-governing dominion to which this Act does not extend, the enactments repealed by this Act shall, so far as they are operative in that dominion, continue in force until repealed by the Legislature of that dominion. (3) Where His Majesty in Council is satisfied that the law of a self-governing dominion to which this Act does not extend provides adequate protection within the dominion for the works (whether published or unpublished) of authors who at the time of the making of the work were British subjects resident elsewhere than in that dominion, His Majesty in Council may, for the purpose of giving reciprocal protection, direct that this Act, except such parts (if any) thereof as may be specified in the Order, and subject to any conditions contained therein, shall, within the parts of His Majesty's dominions to which this Act extends, apply to works the authors whereof were, at the time of the making of the work, resident within the first-mentioned dominion, and to works first published in that dominion; but, save as provided by such an Order, works the authors whereof were resident in a dominion to which this Act does not extend shall not, whether they are British subjects or not, be entitled to any protection under this Act except such protection as is by this Act conferred on works first published within the parts of His Majesty's dominions to which this Act extends: Provided that no such Order shall confer any rights within a self-governing dominion, but the Governor in Council of any self-governing dominion to which this Act extends, may, by Order, confer within that dominion the like rights as His Majesty in Council is, under the foregoing provisions of this subsection, authorised to confer within other parts of His Majesty's dominions. For the purposes of this subsection, the expression "a dominion to which this Act extends" includes a dominion which is for the purposes of this Act to be treated as if it were a dominion to which this Act extends. {Sidenote: Power of Legislatures of British possessions to pass supplemental legislation} 27. The Legislature of any British possession to which this Act extends may modify or add to any of the provisions of this Act in its application to the possession, but, except so far as such modifications and additions relate to procedure and remedies, they shall apply only to works the authors whereof were, at the time of the making of the work, resident in the possession, and to works first published in the possession. {Sidenote: Application to protectorates} 28. His Majesty may, by Order in Council, extend this Act to any territories under his protection and to Cyprus, and, on the making of any such Order, this Act shall, subject to the provisions of the Order, have effect as if the territories to which it applies or Cyprus were part of His Majesty's dominions to which this Act extends. PART II. INTERNATIONAL COPYRIGHT. {Sidenote: Power to extend Act to foreign works} 29.--(1) His Majesty may, by Order in Council, direct that this Act (except such parts, if any, thereof as may be specified in the Order) shall apply-- (_a_) to works first published in a foreign country to which the Order relates, in like manner as if they were first published within the parts of His Majesty's dominions to which this Act extends; (_b_) to literary, dramatic, musical, and artistic works, or any class thereof, the authors whereof were at the time of the making of the work subjects or citizens of a foreign country to which the order relates, in like manner as if the authors were British subjects; (_c_) in respect of residence in a foreign country to which the Order relates, in like manner as if such residence were residence in the parts of His Majesty's dominions to which this Act extends; and thereupon, subject to the provisions of this Part of this Act and of the Order, this Act shall apply accordingly: Provided that-- (i) before making an Order in Council under this section in respect of any foreign country (other than a country with which His Majesty has entered into a convention relating to copyright), His Majesty shall be satisfied that that foreign country has made, or has undertaken to make, such provisions, if any, as it appears to His Majesty expedient to require for the protection of works entitled to copyright under the provisions of Part I. of this Act; (ii) the Order in Council may provide that the term of copyright within such parts of His Majesty's dominions as aforesaid shall not exceed that conferred by the law of the country to which the Order relates; (iii) the provisions of this Act as to the delivery of copies of books shall not apply to works first published in such country, except so far as is provided by the Order; (iv) the Order in Council may provide that the enjoyment of the rights conferred by this Act shall be subject to the accomplishment of such conditions and formalities (if any) as may be prescribed by the Order; (v) in applying the provision of this Act as to ownership of copyright, the Order in Council may make such modifications as appear necessary having regard to the law of the foreign country; {Sidenote: 49 & 50 Vict. c. 33.} (vi) in applying the provisions of this Act as to existing works, the Order in Council may make such modifications as appear necessary, and may provide that nothing in those provisions as so applied shall be construed as reviving any right of preventing the production or importation of any translation in any case where the right has ceased by virtue of section five of the International Copyright Act, 1886. (2) An Order in Council under this section may extend to all the several countries named or described therein. {Sidenote: Application of Part II. to British possessions} 30.--(1) An Order in Council under this Part of this Act shall apply to all His Majesty's dominions to which this Act extends except self-governing dominions and any other possession specified in the order with respect to which it appears to His Majesty expedient that the Order should not apply. (2) The Governor in Council of any self-governing dominion to which this Act extends may, as respects that dominion, make the like orders as under this Part of this Act His Majesty in Council is authorised to make with respect to His Majesty's dominions other than self-governing dominions, and the provisions of this Part of this Act shall, with the necessary modifications, apply accordingly. (3) Where it appears to His Majesty expedient to except from the provisions of any order any part of his dominions not being a self-governing dominion, it shall be lawful for His Majesty by the same or any other Order in Council to declare that such order and this Part of this Act do not, and the same shall not, apply to such part, except so far as is necessary for preventing any prejudice to any rights acquired previously to the date of such Order. PART III. SUPPLEMENTAL PROVISIONS. {Sidenote: Abrogation of common law rights} 31. No person shall be entitled to copyright or any similar right in any literary, dramatic, musical, or artistic work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence. {Sidenote: Provisions as to Orders in Council} 32.--(1) His Majesty in Council may make Orders for altering, revoking, or varying any Order in Council made under this Act, or under any enactments repealed by this Act, but any Order made under this section shall not affect prejudicially any rights or interests acquired or accrued at the date when the Order comes into operation, and shall provide for the protection of such rights and interests. (2) Every Order in Council made under this Act shall be published in the London Gazette and shall be laid before both Houses of Parliament as soon as may be after it is made, and shall have effect as if enacted in this Act. {Sidenote: Saving of university copyright. 15 Geo. 3. c. 53} 33. Nothing in this Act shall deprive any of the universities and colleges mentioned in the Copyright Act, 1775, of any copyright they already possess under that Act, but the remedies and penalties for infringement of any such copyright shall be under this Act and not under that Act. {Sidenote: Saving of compensation to certain libraries} 34. There shall continue to be charged on, and paid out of, the Consolidated Fund of the United Kingdom such annual compensation as was immediately before the commencement of this Act payable in pursuance of any Act as compensation to a library for the loss of the right to receive gratuitous copies of books: Provided that this compensation shall not be paid to a library in any year, unless the Treasury are satisfied that the compensation for the previous year has been applied in the purchase of books for the use of and to be preserved in the library. {Sidenote: Interpretation} 35.--(1) In this Act, unless the context otherwise requires,-- "Literary work" includes maps, charts, plans, tables, and compilations; "Dramatic work" includes any piece for recitation, choregraphic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character; "Artistic work" includes works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs; "Work of sculpture" includes casts and models; "Architectural work of art" means any building or structure having an artistic character or design, in respect of such character or design, or any model for such building or structure, provided that the protection afforded by this Act shall be confined to the artistic character and design, and shall not extend to processes or methods of construction; "Engravings" include etchings, lithographs, woodcuts, prints, and other similar works, not being photographs; "Photograph" includes photo-lithograph and any work produced by any process analogous to photography; "Cinematograph" includes any work produced by any process analogous to cinematography; "Collective work" means-- (_a_) an encyclopædia, dictionary, year book, or similar work; (_b_) a newspaper, review, magazine, or similar periodical; and (_c_) any work written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated; "Infringing," when applied to a copy of a work in which copyright subsists, means any copy, including any colourable imitation, made, or imported in contravention of the provisions of this Act; "Performance" means any acoustic representation of a work and any visual representation of any dramatic action in a work, including such a representation made by means of any mechanical instrument; "Delivery," in relation to a lecture, includes delivery by means of any mechanical instrument; "Plate" includes any stereotype or other plate, stone, block, mould, matrix, transfer, or negative used or intended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which records, perforated rolls or other contrivances for the acoustic representation of the work are or are intended to be made; "Lecture" includes address, speech, and sermon; "Self-governing dominion" means the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, and Newfoundland. (2) For the purposes of this Act (other than those relating to infringements of copyright), a work shall not be deemed to be published or performed in public, and a lecture shall not be deemed to be delivered in public, if published, performed in public, or delivered in public, without the consent or acquiescence of the author, his executors administrators or assigns. (3) For the purposes of this Act, a work shall be deemed to be first published within the parts of His Majesty's dominions to which this Act extends, notwithstanding that it has been published simultaneously in some other place, unless the publication in such parts of His Majesty's dominions as aforesaid is colourable only and is not intended to satisfy the reasonable requirements of the public, and a work shall be deemed to be published simultaneously in two places if the time between the publication in one such place and the publication in the other place does not exceed fourteen days, or such longer period as may, for the time being, be fixed by Order in Council. (4) Where, in the case of an unpublished work, the making of a work has extended over a considerable period, the conditions of this Act conferring copyright shall be deemed to have been complied with, if the author was, during any substantial part of that period, a British subject or a resident within the parts of His Majesty's dominions to which this Act extends. (5) For the purposes of the provisions of this Act as to residence, an author of a work shall be deemed to be a resident in the parts of His Majesty's dominions to which this Act extends if he is domiciled within any such part. {Sidenote: Repeal} 36. Subject to the provisions of this Act, the enactments mentioned in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that schedule: Provided that this repeal shall not take effect in any part of His Majesty's dominions until this Act comes into operation in that part. {Sidenote: Short title and commencement} 37.--(1) This Act may be cited as the Copyright Act, 1911. (2) This Act shall come into operation-- (_a_) in the United Kingdom, on the first day of July nineteen hundred and twelve or such earlier date as may be fixed by Order in Council; (_b_) in a self-governing dominion to which this Act extends, at such date as may be fixed by the Legislature of that dominion; (_c_) in the Channel Islands, at such date as may be fixed by the States of those islands respectively; (_d_) in any other British possession to which this Act extends, on the proclamation thereof within the possession by the Governor. FIRST SCHEDULE. EXISTING RIGHTS. ---------------------------------------------------------------------- EXISTING RIGHT. | SUBSTITUTED RIGHT. ---------------------------------------------------------------------- _(a) In the case of Works other than Dramatic and Musical Works._ Copyright. | Copyright as defined by this Act.[3] _(b) In the case of Musical and Dramatic Works._ Both copyright and performing | Copyright as defined by this Act.[3] right. | Copyright, but not performing | Copyright as defined by this Act, right. | except the sole right to perform | the work or any substantial | part thereof in public. Performing right, but not copy- | The sole right to perform the right. | work in public, but none of the | other rights comprised in copy- | right as defined by this Act. ---------------------------------------------------------------------- For the purposes of this Schedule the following expressions, where used in the first column thereof, have the following meanings:-- "Copyright," in the case of a work which according to the law in force immediately before the commencement of this Act has not been published before that date and statutory copyright wherein depends on publication, includes the right at common law (if any) to restrain publication or other dealing with the work; "Performing right," in the case of a work which has not been performed in public before the commencement of this Act, includes the right at common law (if any) to restrain the performance thereof in public. Footnote 3: In the case of an essay, article, or portion forming part of and first published in a review, magazine, or other periodical or work of a like nature, the right shall be subject to any right of publishing the essay, article, or portion in a separate form to which the author is entitled at the commencement of this Act, or would if this Act had not been passed have become entitled under section eighteen of the Copyright Act, 1842. SECOND SCHEDULE. ENACTMENTS REPEALED. ------------------+----------------------------+------------------------- SESSION AND | SHORT TITLE. | EXTENT OF REPEAL. CHAPTER. | | ------------------+----------------------------+------------------------- 8 Geo. 2. c. 13. | The Engraving Copyright | The whole Act. | Act, 1734. | 7 Geo. 3. c. 38. | The Engraving Copyright | The whole Act. | Act, 1767. | 15 Geo. 3. c. 53. | The Copyright Act, 1775. | The whole Act. 17 Geo. 3. c. 57. | The Prints Copyright Act, | The whole Act. | 1777. | 54 Geo. 3. c. 56. | The Sculpture Copyright | The whole Act. | Act, 1814. | 3 & 4 Will. 4. c. | The Dramatic Copyright | The whole Act. 15. | Act, 1833. | 5 & 6 Will. 4. c. | The Lectures Copyright | The whole Act. 65. | Act, 1835. | 6 & 7 Will. 4. c. | The Prints and Engravings | The whole Act. 59. | Copyright (Ireland) | | Act, 1836. | 6 & 7 Will. 4. | The Copyright Act, 1836. | The whole Act. c. 110. | | 5 & 6 Vict. c. | The Copyright Act, 1842. | The whole Act. 45. | | 7 & 8 Vict. c. | The International Copy- | The whole Act. 12. | right Act, 1844. | 10 & 11 Vict. c. | The Colonial Copyright | The whole Act. 95. | Act, 1847. | 15 & 16 Vict. c. | The International Copy- | The whole Act. 12. | right Act, 1852. | 25 & 26 Vict. | The Fine Arts Copyright | Sections one to six. In c. 68. | Act, 1862. | section eight the | | words "and pursuant | | to any Act for the | | protection of copy- | | right engravings." | | Sections nine to | | twelve. 38 & 39 Vict. | The International Copy- | The whole Act. c. 12. | right Act, 1875. | 39 & 40 Vict. | The Customs Consolidation | Section forty-two, from c. 36. | Act, 1876. | "Books wherein" to | | "such copyright will | | expire." Sections | | forty-four, forty-five | | and one hundred and | | fifty-two. 45 & 46 Vict. | The Copyright (Musical | The whole Act. c. 40. | Compositions) Act, 1882. | 49 & 50 Vict. | The International Copy- | The whole Act. c. 33. | right Act, 1886. | 51 & 52 Vict. | The Copyright (Musical | The whole Act. c. 17. | Compositions) Act, 1888. | 52 & 53 Vict. | The Revenue Act, 1889. | Section one, from c. 42. | | "Books first pub- | | lished" to "as pro- | | vided in that sec- | | tion." 6 Edw. 7. c. | The Musical Copyright | In section three the 36. | Act, 1906. | words "and which has | | been registered in ac- | | cordance with the | | provisions of the | | Copyright Act, 1842, | | or of the Internation- | | al Copyright Act, | | 1844, which registra- | | tion may be effected | | notwithstanding | | anything in the Inter- | | national Copyright | | Act, 1886." ------------------+----------------------------+------------------------- _6a._ FINE ARTS COPYRIGHT ACT, 1862 [_Unrepealed Sections_] (25 & 26 VICTORIA, CHAPTER 68) {Sidenote: Penalties on fraudulent Productions and Sales} VII. No Person shall do or cause to be done any or either of the following Acts; that is to say, First, no Person shall fraudulently sign or otherwise affix, or fraudulently cause to be signed or otherwise affixed, to or upon any Painting, Drawing, or Photograph, or the Negative thereof, any Name, Initials, or Monogram: Secondly, no Person shall fraudulently sell, publish, exhibit, or dispose of, or offer for Sale, Exhibition, or Distribution, any Painting, Drawing, or Photograph, or Negative of a Photograph, having thereon the Name, Initials, or Monogram of a Person who did not execute or make such Work: Thirdly, no Person shall fraudulently utter, dispose of, or put off, or cause to be uttered or disposed of, any Copy or colourable Imitation of any Painting, Drawing, or Photograph, or Negative of a Photograph, whether there shall be subsisting Copyright therein or not, as having been made or executed by the Author or Maker of the original Work from which such Copy or Imitation shall have been taken: Fourthly, where the Author or Maker of any Painting, Drawing, or Photograph, or Negative of a Photograph, made either before or after the passing of this Act, shall have sold or otherwise parted with the Possession of such Work, if any Alteration shall afterwards be made therein by any other Person, by Addition or otherwise, no Person shall be at liberty, during the Life of the Author or Maker of such Work, without his Consent, to make or knowingly to sell or publish, or offer for Sale, such Work or any Copies of such Work so altered as aforesaid, or of any Part thereof, as or for the unaltered Work of such Author or Maker: {Sidenote: Penalties} Every Offender under this Section shall, upon Conviction, forfeit to the Person aggrieved a Sum not exceeding Ten Pounds, or not exceeding double the full Price, if any, at which all such Copies, Engravings, Imitations, or altered Works shall have been sold or offered for Sale; and all such Copies, Engravings, Imitations, or altered Works shall be forfeited to the Person, or the Assigns or legal Representatives of the Person, whose Name, Initials, or Monogram shall be so fraudulently signed or affixed thereto, or to whom such spurious or altered Work shall be so fraudulently or falsely ascribed as aforesaid: Provided always, that the Penalties imposed by this Section shall not be incurred unless the Person whose Name, Initials, or Monogram shall be so fraudulently signed or affixed, or to whom such spurious or altered Work shall be so fraudulently or falsely ascribed as aforesaid, shall have been living at or within Twenty Years next before the Time when the Offence may have been committed. {Sidenote: Recovery of pecuniary Penalties} VIII. All pecuniary Penalties which shall be incurred, and all such unlawful Copies, Imitations, and all other Effects and Things as shall have been forfeited by Offenders, pursuant to this Act, may be recovered by the Person hereinbefore and in any such Acts as aforesaid empowered to recover the same respectively, and hereinafter called the Complainant or the Complainer, as follows: {Sidenote: In England and Ireland} In England and Ireland, either by Action against the Party offending, or by summary Proceeding before any Two Justices having Jurisdiction where the Party offending resides: {Sidenote: In Scotland} In Scotland by Action before the Court of Session in ordinary Form, or by summary Action before the Sheriff of the County where the Offence may be committed or the Offender resides, and any Judgment so to be pronounced by the Sheriff in such summary Application shall be final and conclusive, and not subject to Review by Suspension, Reduction, or otherwise. _6b._ MUSICAL (SUMMARY PROCEEDINGS) COPYRIGHT ACT, 1902 [_Unrepealed_] (2 EDWARD VII., CHAPTER 15) AN ACT TO AMEND THE LAW RELATING TO MUSICAL COPYRIGHT. [22d JULY, 1902.] Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: {Sidenote: Seizure, etc.; of pirated copies} 1. A court of summary jurisdiction, upon the application of the owner of the copyright in any musical work, may act as follows: If satisfied by evidence that there is reasonable ground for believing that pirated copies of such musical work are being hawked, carried about, sold, or offered for sale, may, by order, authorize a constable to seize such copies without warrant and to bring them before the court, and the court, on proof that the copies are pirated, may order them to be destroyed or to be delivered up to the owner of the copyright if he makes application for that delivery. {Sidenote: Power to seize copies on hawkers} 2. If any person shall hawk, carry about, sell or offer for sale any pirated copy of any musical work, every such pirated copy may be seized by any constable without warrant, on the request in writing of the apparent owner of the copyright in such work, or of his agent thereto authorised in writing, and at the risk of such owner. On seizure of any such copies, they shall be conveyed by such constable before a court of summary jurisdiction, and, on proof that they are infringements of copyright, shall be forfeited or destroyed, or otherwise dealt with as the court may think fit. {Sidenote: Definitions} 3. "Musical copyright" means the exclusive right of the owner of such copyright under the Copyright Acts in force for the time being to do or to authorise another person to do all or any of the following things in respect of a musical work: (1) To make copies by writing or otherwise of such musical work. (2) To abridge such musical work. (3) To make any new adaptation, arrangement, or setting of such musical work, or of the melody thereof, in any notation or system. "Musical work" means any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced. "Pirated musical work" means any musical work written, printed, or otherwise reproduced, without the consent lawfully given by the owner of the copyright in such musical work. {Sidenote: Short title and commencement} 4. This Act may be cited as The Musical (Summary Proceedings) Copyright Act, 1902, and shall come into operation on the first day of October one thousand nine hundred and two, and shall apply only to the United Kingdom. _6c._ MUSICAL COPYRIGHT ACT, 1906 [_Unrepealed_] (6 EDWARD VII., CHAPTER 36) AN ACT TO AMEND THE LAW RELATING TO MUSICAL COPYRIGHT. [4TH AUGUST, 1906.] {Sidenote: A. D. 1906} Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-- {Sidenote: Penalty for being in possession of pirated music} 1.--(1) Every person who prints, reproduces, or sells, or exposes, offers, or has in his possession for sale, any pirated copies of any musical work, or has in his possession any plates for the purpose of printing or reproducing pirated copies of any musical work, shall (unless he proves that he acted innocently) be guilty of an offence punishable on summary conviction, and shall be liable to a fine not exceeding five pounds, and on a second or subsequent conviction to imprisonment with or without hard labour for a term not exceeding two months or to a fine not exceeding ten pounds: Provided that a person convicted of an offence under this Act who has not previously been convicted of such an offence, and who proves that the copies of the musical work in respect of which the offence was committed had printed on the title-page thereof a name and address purporting to be that of the printer or publisher, shall not be liable to any penalty under this Act unless it is proved that the copies were to his knowledge pirated copies. {Sidenote: Constable may take into custody without warrant} (2) Any constable may take into custody without warrant any person who in any street or public place sells or exposes, offers, or has in his possession for sale any pirated copies of any such musical work as may be specified in any general written authority addressed to the chief officer of police, and signed by the apparent owner of the copyright in such work or his agent thereto authorised in writing, requesting the arrest, at the risk of such owner, of all persons found committing offences under this section in respect to such work, or who offers for sale any pirated copies of any such specified musical work by personal canvass or by personally delivering advertisements or circulars. (3) A copy of every written authority addressed to a chief officer of police under this section shall be open to inspection at all reasonable hours by any person without payment of any fee, and any person may take copies of or make extracts from any such authority. (4) Any person aggrieved by a summary conviction under this section may in England or Ireland appeal to a court of quarter sessions, and in Scotland under and in terms of the Summary Prosecutions Appeals (Scotland) Act, 1875. {Sidenote: 38 & 39 Vict. c. 62} {Sidenote: Right of entry by police for execution of Act} 2.--(1) If a court of summary jurisdiction is satisfied by information on oath that there is reasonable ground for suspecting that an offence against this Act is being committed on any premises, the court may grant a search warrant authorising the constable named therein to enter the premises between the hours of six of the clock in the morning and nine of the clock in the evening, and, if necessary, to use force for making such entry, whether by breaking open doors or otherwise, and to seize any copies of any musical work or any plates in respect of which he has reasonable ground for suspecting that an offence against this Act is being committed. (2) All copies of any musical work and plates seized under this section shall be brought before a court of summary jurisdiction, and if proved to be pirated copies or plates intended to be used for the printing or reproduction of pirated copies shall be forfeited and destroyed or otherwise dealt with as the court think fit. {Sidenote: Definitions} 3. In this Act-- {Sidenote: "Pirated copies"} The expression "pirated copies" means any copies of any musical work written, printed, or otherwise reproduced without the consent lawfully given by the owner of the copyright in such musical work: {Sidenote: "Musical work"} The expression "musical work" means a musical work in which there is a subsisting copyright: {Sidenote: "Plates"} The expression "plates" includes any stereotype or other plates, stones, matrices, transfers, or negatives used or intended to be used for printing or reproducing copies of any musical work: Provided that the expressions "pirated copies" and "plates" shall not, for the purposes of this Act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records respectively are made: {Sidenote: "Chief officer of police"} The expression "chief officer of police"-- (_a_) with respect to the City of London, means the Commissioner of City Police; {Sidenote: 53 & 54 Vict. c. 45} (_b_) elsewhere in England has the same meaning as in the Police Act, 1890; {Sidenote: 53 & 54 Vict. c. 67} (_c_) in Scotland has the same meaning as in the Police (Scotland) Act, 1890; (_d_) in the police district of Dublin metropolis means either of the Commissioners of Police for the said district; (_e_) elsewhere in Ireland means the District Inspector of the Royal Irish Constabulary: {Sidenote: "Court of summary jurisdiction"} The expression "court of summary jurisdiction" in Scotland means the sheriff or any magistrate of any royal, parliamentary, or police burgh officiating under the provisions of any local or general police Act. {Sidenote: Short title} 4. This Act may be cited as the Musical Copyright Act, 1906. 7. CANADIAN COPYRIGHT MEASURE, 1911 AN ACT RESPECTING COPYRIGHT {Sidenote: Short title} 1. This Act may be cited as _The Copyright Act, 1911_. INTERPRETATION {Sidenote: Definitions:} 2. In this Act, unless the context otherwise requires,-- {Sidenote: "Minister"} "Minister" means the Minister of Agriculture; {Sidenote: "Department"} "Department" means the Department of Agriculture; {Sidenote: "Legal representatives"} "legal representatives" includes heirs, executors, administrators and assigns, or other legal representatives; {Sidenote: "Literary" and other works} "literary work" includes maps, charts, plans, and tables; "dramatic work" includes any piece for recitation, choregraphic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character; "literary work," "dramatic work" and "musical work" includes records, perforated rolls or other contrivances by means of which a work may be mechanically performed or delivered; "artistic work" includes works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art, and engravings and photographs; "work of sculpture" includes casts and models; "architectural work of art" means any building or structure having an artistic character or design, in respect of such character or design, but not in respect of the processes or methods of its construction; {Sidenote: "Engravings"} "engravings" include etchings, lithographs, woodcuts, prints and other similar works, not being photographs; {Sidenote: "Photograph"} "photograph" includes photo-lithograph and any work produced by any process analogous to photography; {Sidenote: "Cinematograph"} "cinematograph" includes any work produced by any process analogous to cinematography; {Sidenote: "Pirated"} "pirated," when applied to a copy of a work in which copyright subsists, means any copy made without the consent or acquiescence of the owner of the copyright, or imported contrary to this Act; {Sidenote: "Publication"} "publication" means the issue of copies to the public and does not include the performance in public of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work, or the construction of an architectural work of art; {Sidenote: "Performance"} "performance" means any acoustic representation of a work and any visual representation of any dramatic action in a work, including such a representation made by means of any mechanical instrument; {Sidenote: "Delivery"} "delivery," in relation to a lecture, includes delivery by means of any mechanical instrument; {Sidenote: "Plate"} "plate" includes any stereotype or other plate, stone, matrix, transfer, or negative used or intended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which records, perforated rolls or other contrivance for the acoustic representation of the work are made or intended to be made; {Sidenote: "Lecture"} "lecture" includes address, speech and sermon; {Sidenote: "Copyright"} "copyright" means the sole right to produce or reproduce any original literary, dramatic, musical or artistic work or any substantial part thereof in any material form whatsoever and in any language; to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work; and shall include the sole right,-- (_a_) in the case of a dramatic work, to convert it into a novel or other non-dramatic work; (_b_) in the case of a novel or other non-dramatic work, to convert it into a dramatic work, either by way of multiplication of copies of by way of performance in public; (_c_) in the case of a literary, dramatic or musical work, to make any record, perforated roll or other contrivance by means of which the work may be mechanically performed, and to authorize any such acts as aforesaid. {Sidenote: Publication, performance or delivery in public} (2.) For the purposes of this Act (other than those relating to infringements of copyright), a work shall not be deemed to be published or performed in public, and a lecture shall not be deemed to be delivered in public, if published, performed in public or delivered in public without the consent or acquiescence of the person entitled to authorize its publication, performance in public or delivery in public. {Sidenote: Simultaneous publication} (3.) For the purposes of this Act a work shall be deemed to be first published in Canada, notwithstanding that it has been published simultaneously in some other country, unless the publication in Canada is colourable only and is not intended to satisfy the reasonable requirements of the public, and a work shall be deemed to be published simultaneously in two countries if the time between the publication in one such country and the publication in the other country does not exceed fourteen days. {Sidenote: Copyright to bona fide resident} (4.) Where the making of a work has extended over a considerable period the conditions of this Act conferring copyright shall be deemed to have been complied with if the author was, during any substantial part of that period, a bona fide resident of Canada. CONDITIONS OF COPYRIGHT {Sidenote: Conditions of copyright in Canada} 3. Subject to the provisions of this Act, copyright shall subsist in Canada for the term hereinafter mentioned in every original literary, dramatic, musical and artistic work the author whereof was, at the date of the making of the work, a bona fide resident of Canada, but in no other works except so far as the protection conferred by this act is extended by order in council thereunder. {Sidenote: Notice of copyright--} (2.) Every copy of a work published in Canada shall be printed or made in Canada, and shall bear notice of copyright-- {Sidenote: Of books, engravings, photographs, maps, etc.} (_a_) if the work is a book or other printed publication, on the title-page or on the page immediately following; or, (_b_) if the work is a literary work (other than a book, or other printed publication), or a musical work, engraving, photograph or cinematograph, on the face thereof; or, (_c_) if the work is a volume of maps, charts, plans, tables, music, engravings or photographs, on the title-page or first page thereof: in the words "Copyright, Canada, 19--, by A. B." {Sidenote: Of paintings, sculpture, etc.} (3.) Every painting, drawing or work of sculpture published in Canada shall be made in Canada, and the signature of the author shall be notice of copyright. INFRINGEMENT {Sidenote: Infringement of copyright} 4. Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright: Provided that the following acts shall not constitute an infringement of copyright;-- {Sidenote: Exceptions} (i) any fair dealing with any work for the purposes of private study, research, criticism or review; (ii) where the author of an artistic work is not the owner of the copyright therein, the use by the author of any mould, cast, sketch, plan, model or study made by him for the purpose of the work, provided that he does not thereby repeat or imitate the main design of the work; (iii) the making of paintings, drawings, engravings or photographs of a work of sculpture or artistic craftsmanship, if situate in a public place or building, or the making of paintings, drawings, engravings or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art; (iv) the publication in a newspaper of a report of a lecture delivered in public, unless the report is prohibited by notice given either-- (_a_) orally, at the beginning of the lecture, or, if the lecture is one of a series of lectures given by the same lecturer on the same subject at the same place, at the beginning of the first lecture of the series; or (_b_) by a conspicuous written or printed notice affixed, before the lecture, or the first lecture of the series, is given, on the entrance doors of the building in which the lecture or series of lectures is given, or in a place near the lecturer. (v) the representing of any scene or object, notwithstanding that there may be copyright in some other representation of such scene or object. {Sidenote: Infringement by sale, etc.} (2.) Copyright in a work shall also be deemed to be infringed by any person who sells or lets for hire, or exposes, offers or has in his possession for sale or hire, or distributes or exhibits in public, or imports for sale or hire into Canada, any work which to his knowledge infringes copyright or would infringe copyright if it had been made in Canada. {Sidenote: Infringement by public performance} (3.) Copyright in a work shall also be deemed to be infringed by any person who for private profit permits a theatre or other place of entertainment to be used for the performance in public of the work without the consent of the owner of the copyright, unless he proves that he acted innocently. TERM OF COPYRIGHT {Sidenote: Term of copyright} 5. The term for which copyright shall subsist, shall, except as otherwise provided by this Act, be the life of the author and a period of fifty years after his death unless previously determined by first publication elsewhere than in Canada, except as otherwise provided by this Act, or by failure to comply with any other requirement of this Act. LICENSES TO REPUBLISH {Sidenote: License to republish or perform work in public granted by Minister upon petition} 6. If, at any time after a work has been published or performed in public, a petition is presented to the Minister by any person interested, alleging that, by reason of the withholding of the work from the public or of the price charged for copies of the work or for the right to perform the work in public, the reasonable requirements of the public with respect to the work are not satisfied, and praying for the grant of a license to reproduce the work or perform the work in public, the Minister shall consider the petition, and of, after inquiry, he is satisfied that the allegations contained therein are correct, and if within a reasonable time no remedy is provided by the owner of the copyright, he may grant to the petitioner a license to reproduce or perform the work in public in Canada on such terms as respects price and payment of royalties to the owner of the copyright in the work, and otherwise, as the Minister thinks fit. {Sidenote: Appeal} (2.) Any decision of the Minister under this section shall be subject to appeal to the Exchequer Court of Canada, and the decision of that court shall be final. {Sidenote: Ownership of copyright} OWNERSHIP AND ASSIGNMENT OF COPYRIGHT 7. Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that-- (_a_) where in the case of an engraving, photograph or portrait the work was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement in writing to the contrary the person by whom the work was ordered shall be the first owner of the copyright; (_b_) where the author was in the employment of some other person and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright. {Sidenote: Assignment of copyright} (2.) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to any particular place, and either for the whole term of the copyright or any part thereof, and may grant any interest in the right by license, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent. {Sidenote: Registration of assignment or license} (3.) Any grant of an interest in a copyright, either by assignment or license, shall be adjudged void against any subsequent assignee or licensee for valuable consideration without actual notice unless such assignment or license is registered in the manner directed by this Act before the registering of the instrument under which the subsequent assignee or licensee claims. {Sidenote: Duplicate copies} (4.) For the purposes of this Act as to registration, any grant of an interest in a copyright, either by way of assignment or license, shall be made in duplicate. {Sidenote: Application for registration} (5.) Application for registration of a grant of any interest in a copyright, either by way of assignment or license, shall be made by production of both duplicates to the Department and payment of the prescribed fee. One duplicate shall be retained at the Department and the other shall be returned to the person depositing it, with a certificate of registration. {Sidenote: Assignee or licensee must comply with Act} (6.) Subject to the provisions of this Act the grant of an interest in a copyright, either by assignment or license, shall be void unless the assignee or licensee, at the time such grant is executed, satisfies the conditions conferring copyright prescribed by this Act. CIVIL REMEDIES {Sidenote: Civil remedies for infringement of copyright} 8. Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are conferred by law. {Sidenote: Costs} (2.) The costs in any proceedings in respect of the infringement of copyright shall be in the absolute discretion of the court. {Sidenote: Rights of owner respecting pirated copies} 9. All pirated copies of any work in which copyright subsists, and all plates used or intended to be used for the production of pirated copies of such work, shall be deemed to be the property of the owner of the copyright, who may take proceedings for the recovery of possession of such copies or in respect of the conversion thereof. {Sidenote: Remedies in the case of architecture} 10. Where a building or other structure which infringes or which, if completed, would infringe the copyright in some other work has commenced to be constructed, the owner of the copyright shall not be entitled to obtain an injunction to restrain the construction of such building or structure or to order its demolition. {Sidenote: Limitation} (2.) Such of the other provisions of this Act as provide that a pirated copy shall be deemed the property of the owner of the copyright, or as impose summary penalties, shall not apply in any case to which this section applies. OFFENCES AND PENALTIES {Sidenote: Penalty for false entries} 11. Every person who wilfully makes or causes to be made any false entry in any of the registry books hereinbefore mentioned, or who wilfully produces, or causes to be tendered in evidence, any paper which falsely purports to be a copy of an entry in any of the said books, is guilty of an indictable offence. {Sidenote: Limitation of action} 12. No action or prosecution for the recovery of any penalty under this Act shall be commenced more than three years after the cause of action arises. SUMMARY REMEDIES {Sidenote: Penalties for dealing with pirated copies} 13. If any person-- (_a_) makes for sale or hire any pirated copy of a work in which copyright subsists; or, (_b_) sells or lets for hire, or exposes, offers, or has in his possession for sale or hire any pirated copy of any such work; or, (_c_) distributes or exhibits in public any pirated copy of any such work; or, (_d_) imports for sale or hire into Canada any pirated copy of any such work: he shall, unless he proves that he acted innocently, be guilty of an offence under this Act and be liable on summary conviction to a fine not exceeding twenty-five dollars for every copy dealt with in contravention of this section, but not exceeding two hundred dollars in respect of the same transaction; or in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months: {Sidenote: Proviso as to certain cases} Provided that a person convicted of an offence under paragraph (_b_) of this subsection, who has not been previously convicted of any such offence and who proves that the copies of the work in respect of which the offence was committed had printed or marked thereon in some conspicuous place a name and address purporting to be that of the printer or publisher, shall not be liable to any penalty under this section unless it is proved that the copies were to his knowledge pirated copies. {Sidenote: Penalty for making or possessing plate of pirated copies} (2.) If any person makes or has in his possession any plate for the purpose of making pirated copies of any work in which copyright subsists, or for private profit causes any such work to be performed in public without the consent of the owner of the copyright, he shall, unless he proves that he acted innocently, be guilty of an offence under this Act, and be liable on summary conviction to a fine not exceeding two hundred dollars, or, in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months. {Sidenote: Destruction of plate upon order of court} (3.) The court before which any such proceedings are taken may in addition order that all copies of the work or all plates in the possession of the offender, which appear to it to be pirated copies or plates for the purpose of making pirated copies, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. {Sidenote: Seizure of pirated copies being hawked about or sold and arrest of offender} 14. Where a court of summary jurisdiction is satisfied by information on oath that there is reasonable ground for believing that pirated copies of any work are being or about to be hawked or carried about, sold or offered for sale, it may issue an order authorising any constable or peace officer-- (_a_) to seize without further warrant any copies of the work which may be found being hawked or carried about, sold or offered for sale; (_b_) to arrest without further warrant any person who in any street or public place sells or exposes or has in his possession for sale any pirated copies of the work, or who offers for sale any pirated copies of the work by personal canvass or by personally delivering advertisements or circulars. {Sidenote: Execution of order for seizure and arrest} (2.) Where such an order has been made the person on whose application it was made may send a copy thereof (certified to be a true copy by the clerk of the court which made the order) to the chief constable or deputy chief constable for any district within which the court has jurisdiction, and thereupon any constable or peace officer may seize any such copies and arrest any such person in accordance with the terms of the order. {Sidenote: Disposition of works seized} (3.) Where the constable or peace officer seizes any copies of a work in pursuance of such an order, he shall bring them before a court of summary jurisdiction, and that court, on proof that the copies are pirated, may order that they be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. {Sidenote: Orders open to inspection} (4.) All copies of orders sent to a chief constable or deputy chief constable under this section shall be open to inspection at all reasonable hours by any person without payment of any fee, and any person may take copies of or make extracts from any such order. (5.) A single order under this section may be made extending to several works. {Sidenote: Scope of order} (6.) An order under this section shall not authorize-- (_a_) the arrest of any person selling or offering for sale; or, (_b_) the seizure of copies of {Sidenote: Newspaper or periodical excepted} any newspaper or other periodical publication merely because it contains a pirated copy of a work, if such pirated copy is only an incidental feature and does not form a substantial part of the newspaper or periodical. {Sidenote: Search warrants} 15. A court of summary jurisdiction may, if satisfied by information on oath that there is reasonable ground for believing that an offence punishable summarily under this Act is being committed on any premises, grant a search warrant authorising the constable or peace officer named therein to enter the premises between the hours of six of the clock in the morning and nine of the clock in the evening (and, if necessary, to use force in making such entry, whether by breaking open doors or otherwise) and to seize any copies of any work or any plates in respect of which he has reasonable ground for suspecting that an offence under this Act is being committed, and may, on proof that the copies or plates brought before the court in pursuance of the warrant are pirated copies or plates intended to be used for the purpose of making pirated copies, order that they be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. IMPORTATION OF COPIES {Sidenote: Importation of copies of copyright works} 16. Except as otherwise provided by this Act copies made out of Canada of any work in which copyright subsists shall not be imported into Canada and shall be deemed to be included in Schedule C to _The Customs Tariff_, and that Schedule shall apply accordingly. {Sidenote: If copyright owner licenses reproduction in Canada, the Minister may prohibit importation of books printed elsewhere} {Sidenote: Proviso} 17. If a book in which there is subsisting copyright has been published in any part of His Majesty's dominions, other than Canada, and if it is proved to the satisfaction of the Minister that the owner of the copyright has granted a license to reproduce in Canada, from movable or other types, or from stereotype plates, or from electroplates, or from lithograph stones, or by any process for facsimile reproduction, an edition or editions of such book designed for sale only in Canada, the Minister may, notwithstanding anything in this Act, by order under his hand prohibit the importation into Canada, except with the written consent of the licensee, of any copies of such book printed elsewhere: Provided that two such copies may be specially imported for the bona fide use of any public free library or any university or college library, or for the library of any duly incorporated institution or society for the use of the members of such institution or society. {Sidenote: Suspension or revocation of prohibition} 18. The Minister may at any time in like manner, by order under his hand, suspend or revoke such prohibition upon importation if it is proved to his satisfaction that-- (_a_) the license to reproduce in Canada has terminated or expired; or, (_b_) the reasonable demand for the book in Canada is not sufficiently met without importation; or, (_c_) the book is not, having regard to the demand therefor in Canada, being suitably printed or published; or, (_d_) any other state of things exists on account of which it is not in the public interest to further prohibit importation. {Sidenote: Licensee to furnish copy of any edition if required} 19. At any time after the importation of a book has been so prohibited, any person resident or being in Canada may apply either directly or through a bookseller or other agent, to the person so licensed to reproduce such book, for a copy of any edition of such book then on sale and reasonably obtainable in the United Kingdom or any other part of His Majesty's dominions and it shall thereupon be the duty of the person so licensed, as soon as reasonably may be, to import and sell such copy to the person so applying therefor, at the ordinary selling price of such copy in the United Kingdom, or such other part of His Majesty's dominions, with the duty and reasonable forwarding charges added. {Sidenote: Otherwise prohibition may be revoked} (2.) The failure or neglect, without lawful excuse, of the person so licensed to supply such copy within a reasonable time shall be a reason for which the Minister may, if he sees fit, suspend or revoke the prohibition upon importation. {Sidenote: Customs notified of prohibition} 20. The Minister shall forthwith inform the Department of Customs of any order made by him under this Act. {Sidenote: Unlawful importation of books} {Sidenote: Forfeiture} {Sidenote: Penalty} 21. All books imported in contravention of any order, prohibiting such importation, made under the hand of the Minister, by the authority of this Act, may be seized by an officer of Customs, and shall be forfeited to the Crown and destroyed; and any person importing, or causing or permitting the importation of any book in contravention of an order of the Minister shall, for each offence, be liable, upon summary conviction, to a penalty not exceeding one hundred dollars. REGISTRATION {Sidenote: Registers of copyrights} 22. The Minister shall cause to be kept, at the Department, books to be called the Registers of Copyrights, in which shall be entered the names or titles of works and the names of authors, and such other particulars as may be prescribed. {Sidenote: Registration of particulars of work} (2.) The author or publisher of, or the owner of or other person interested in the copyright in, any work shall cause the particulars respecting the work to be entered in the register, before publication thereof or the performance or delivery thereof in public. {Sidenote: Registration of serial publications} (3.) In the case of an encyclopædia, newspaper, review, magazine or other periodical work, or work published in a series of books or parts, it shall not be necessary to make a separate entry for each number or part, but a single entry for the whole work shall suffice. {Sidenote: Indexes of registers} (4.) There shall also be kept at the Department such indexes of the registers established under this section as may be prescribed. {Sidenote: Registers and indexes in prescribed forms} {Sidenote: Certified copies of entries} (5.) The registers and indexes established under this section shall be in the prescribed form, and shall at all reasonable times be open to inspection, and any person shall be entitled to take copies of or make extracts from any such register, and the Minister shall, if so required, give a copy of an entry in any such register certified by him to be a true copy, and any such certificate shall be prima facie evidence of the matters thereby certified. {Sidenote: Fees} (6.) There shall be charged in respect of entries in registers the inspection of registers, taking copies of or making extracts from registers, and certificates under this section, the fees hereinafter prescribed. {Sidenote: Prior registrations} (7.) Any registration made under _The Copyright Act_ shall have the same force and effect as if made under this Act. {Sidenote: Registration of temporary copyright in periodical works} 23. Any literary work intended to be published in pamphlet or book form, but which is first published in separate articles in a newspaper or periodical in Canada, may be registered under this Act while it is so preliminarily published as a temporary copyright, if the title of the manuscript and a short analysis of the work are deposited at the Department with an application for registration in accordance with the prescribed form, and if every separate article so published is preceded by the words, "Registered in accordance with the Copyright Act, 1911:" Provided that the work, when published in book or pamphlet form, shall be subject, also, to the other requirements of this Act. {Sidenote: Anonymous publications} 24. If a book is published anonymously, it shall be sufficient to enter it in the name of the first publisher thereof, either on behalf of the unnamed author or on behalf of such first publisher, as the case may be. {Sidenote: Application for registration} 25. The application for the registration of a copyright or of a temporary copyright may be made in the name of the author or of his legal representatives, by any person purporting to be agent of such author or legal representatives. {Sidenote: Unauthorized assumption of agency} (2.) Any damage caused by a fraudulent or an erroneous assumption of such authority shall be recoverable in any court of competent jurisdiction. {Sidenote: Deposit of application and copies of work in Department} 26. Application for registration of a copyright shall be made in accordance with the prescribed form, and shall be deposited at the Department together with three copies of the work if it is a book, map, chart, musical composition, photograph, print, cut or engraving, and with a written description thereof if the work is a painting, drawing or a work of sculpture, and with one complete typewritten copy thereof if the work is a dramatic work copies of which are not published. {Sidenote: Weekly list of registered works} {Sidenote: Copies transmitted and retained} 27. The Minister shall cause to be transmitted to the Library of the Parliament of Canada and to the British Museum a weekly list of all works registered under this Act together with one copy of each work deposited at the Department: Provided that the Minister may retain at the Department such copies of deposited works as appear in his opinion proper, but a copy of any work so retained shall be transmitted to the Library of Parliament of Canada or to the British Museum upon receipt of a demand in writing from the proper authority, such demand to be received by the Minister within six months after the date of registration of the work. Any copy of a work retained by the Minister as to which no demand is received within the time limited shall be returned to the owner of the copyright, or otherwise disposed of as to the Minister seems proper. SPECIAL PROVISIONS AS TO CERTAIN WORKS {Sidenote: Copyright in posthumous works} 28. In the case of a literary, dramatic or musical work or engraving which has not been published, nor, in the case of a dramatic or musical work been performed in public, nor, in the case of a lecture, been delivered in public, in the lifetime of the author, copyright shall, subject to the provisions of this Act as to first publication elsewhere than in Canada, subsist till publication, or performance or delivery in public, whichever may first happen, and for a term of fifty years thereafter. {Sidenote: Works of joint authors} 29. In the case of a work of joint authorship copyright shall subsist during the life of the author who first dies and for a term of fifty years after his death, or during the life of the author who dies last, whichever period is the longer. {Sidenote: Collective works} 30. Where the work of an author is first published as an article or other contribution in a collective work (that is to say):-- (_a_) an encyclopædia, dictionary, year book, or similar work; (_b_) a newspaper, review, magazine, or other similar periodical; (_c_) a work written in distinct parts by different authors; {Sidenote: Respective rights of contributors and proprietors} and the proprietor of the collective work is not by virtue of this Act or any assignment thereunder the owner of the copyright in the article or contribution, then, subject to any agreement to the contrary, the owner of the copyright in each article or contribution shall retain his copyright therein, but the proprietor of the collective work shall at all times have the right of reproducing and authorising the reproduction of the work as a whole, and for a period of fifty years from the date of first publication of the collective work shall have the sole right of reproducing and authorising the reproduction of the work as a whole, and shall be entitled to the same remedies in respect of the infringement of the copyright in any part of the work as if he were the owner of the copyright. {Sidenote: Copyright in photographs, records and perforated rolls} 31. The term for which copyright shall subsist in photographs, and in records, perforated rolls and other contrivances by means of which a work may be mechanically performed or delivered, shall be fifty years from the making of the negative or plate, and the person who was owner of the original negative or plate from which the photograph or other contrivance was directly or indirectly derived at the time when such negative or plate was made shall be deemed to be the author of the work, and where such owner is a body corporate the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts. {Sidenote: Application of Act to registered designs} 32. This Act shall not apply to designs capable of being registered under _The Trade Mark and Design Act_, except designs which, though capable of being so registered, are not used or intended to be used as models or patterns to be multiplied by any industrial process. {Sidenote: Rules} (2.) General rules under section 39 of _The Trade Mark and Design Act_, may be made for determining the conditions under which a design shall be deemed to be used for such purposes as aforesaid. EXISTING WORKS {Sidenote: Copyright in existing works, and substituted rights} {Sidenote: Proviso} 33. Where any person is, immediately before the commencement of this Act, entitled to any such right in any work specified in the first column of the First Schedule to this Act, or to any interest in such a right, he shall as from that date be entitled to the substituted right set forth in the second column of that Schedule, or to the same interest in such a substituted right, and to no other right or interest, and such substituted right or interest therein shall subsist for the term for which it would have subsisted if this Act had been in force at the date when the work was made, and the work had been one entitled to copyright thereunder: Provided that-- {Sidenote: Rights of author} {Sidenote: Rights of assignee} (_a_) if the author of any work in which copyright subsists at the commencement of this Act has before that date assigned the copyright or granted any interest therein for the whole term of the copyright, then at the date when but for the passing of this Act the right would have expired the corresponding right conferred by this Act shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before the commencement of this Act and then subsisting shall determine; but the person who immediately before the date at which the right would so have expired was the owner of the right or interest shall be entitled at his option (to be signified in writing not more than one year nor less than six months before the last-mentioned date) either-- {Sidenote: Assignment for remainder of term} (i) to an assignment of the right or the grant of a similar interest therein for the remainder of the term of the right for such consideration as, failing agreement, may be determined by arbitration; or, {Sidenote: Reproduction on payment of royalties} (ii) without any such assignment or grant, to continue to reproduce or perform the work in like manner as theretofore on the payment of such royalties to the author as, failing agreement, may be determined by arbitration: {Sidenote: Prior proceedings not affected} (_b_) nothing in this section shall affect anything done before the commencement of this Act; {Sidenote: Existing rights saved} (_c_) where any person has, before the twenty-sixth day of April, nineteen hundred and eleven, taken any action or incurred any expenditure for the purpose of or with a view to the reproduction or performance of a work at a time when such reproduction or performance would, but for the passing of this Act, have been lawful, nothing in this section shall diminish or prejudice any right or interest arising from or in connection with such action or expenditure which are subsisting and valuable at the said date, unless the person who by virtue of this section becomes entitled to restrain such reproduction or performance agrees to pay such compensation as, failing agreement, may be determined by arbitration; {Sidenote: Rights in records, perforated rolls and contrivances} (_d_) the sole right of making and authorising the making of records, perforated rolls or other contrivances by means of which literary, dramatic or musical works may be mechanically performed shall not be enjoyed by the owner of the copyright in any literary, dramatic, or musical work for the mechanical performance of which any such contrivances have been lawfully made within His Majesty's dominions by any person before the twenty-sixth day of April, nineteen hundred and eleven; {Sidenote: Substituted rights acquired only under this Act} (_e_) where any person is, immediately before the commencement of this Act, entitled to any right in any work specified in the first column of the First Schedule to this Act or to any interest in such right, and such person does not satisfy the conditions conferring copyright laid down by this Act, he shall be entitled to no other right or interest, and such right shall subsist for the term for which it would have subsisted but for the passing of this Act. {Sidenote: Limitation of existing rights} (2.) Subject to the provisions of this Act, copyright shall not subsist in any work made before the commencement of this Act, otherwise than under and in accordance with the provisions of this section. IMPERIAL RECIPROCITY {Sidenote: Application of Act to works of authors resident in British dominions other than Canada} 34. The Governor in Council may by order in council direct that this Act (except such part, if any, thereof as may be specified in the order and subject to such conditions and limitations as may be specified) shall apply to literary, dramatic, musical and artistic works the authors whereof were at the time of the making of the work bona fide residents in a part of His Majesty's dominions, other than Canada, to which the order relates, or British subjects resident elsewhere than in Canada: {Sidenote: Proviso} Provided that, before making an order in council under this section with respect to any part of His Majesty's dominions, the Governor in Council shall be satisfied that that part has made or has undertaken to make such provisions as it appears to the Governor in Council expedient to require for the protection of persons entitled to copyright under this Act. INTERNATIONAL {Sidenote: Application of Act to works of residents in foreign countries} 35. The Governor in Council may, by order in council, direct that this Act (except such parts thereof, if any, as may be specified in the order) shall apply to literary, dramatic, musical and artistic works the authors whereof were at the time of the making thereof subjects or citizens of or bona fide residents in a foreign country to which the order relates, and thereupon, subject to the provisions of this Act and of the order, this Act shall apply accordingly: {Sidenote: Proviso} Provided that-- (i) before making an order in council under this section the Governor in Council shall be satisfied that that foreign country has made or has undertaken to make such provisions as it appears to the Governor in Council expedient to require for the protection of works entitled to copyright under this Act; (ii) the order in council may provide that the term of copyright within Canada shall not exceed that conferred by the law of the country to which the order relates; (iii) the order in council may provide that the enjoyment of the rights conferred by this Act shall be subject to the accomplishment of such conditions and formalities as may be prescribed by the order; (iv) in applying the provisions of this Act as to existing works the order in council may make such modifications as appear necessary, and may provide that nothing in those provisions as so applied shall be construed as reviving any right of preventing the production or importation of any translation in any case where the right has ceased. {Sidenote: Extent of order} (2.) An order in council under this section may extend to all the several countries named or described therein. {Sidenote: Evidence of foreign copyright} 36. Where it is necessary to prove the existence in a foreign country to which an order in council under this Act applies of the copyright in any work, or the ownership of such right, an extract from a register, or a certificate, or other document stating the existence of such right, or the person who is the owner of such right, if authenticated by the official seal of a Minister of State of such foreign country, or by the official seal or the signature of a British diplomatic or consular officer acting in such country, shall be admissible as evidence of the facts named therein, and all courts shall take judicial notice of every such official seal and signature as is in this section mentioned, and shall admit in evidence, without proof, the documents authenticated by it. EVIDENCE {Sidenote: Certified copies as evidence} 37. All copies or extracts certified by the Department shall be received in evidence without further proof and without production of the originals. {Sidenote: Validity of documents} 38. All documents executed and accepted by the Minister shall be held valid, so far as relates to official proceedings under this Act. FEES 39. The following fees shall be paid to the Minister before an application for any of the following purposes is received, that is to say:-- {Sidenote: Registration fees} Registering a copyright $1.00 Registering a temporary copyright 0.50 Registering an assignment 1.00 Certified copy of registration 0.50 Registering any decision of a court of justice, for every folio of 100 words 0.50 {Sidenote: Fees for Office copies} Certified copies of documents:-- For first folio of one hundred words 0.25 For every subsequent folio (fractions of or under one-half folio not being counted, and of one-half or more being counted) 0.10 {Sidenote: Fees in full of all services} (2.) The said fees shall be in full of all services performed under this Act by the Minister or by any person employed by him. {Sidenote: Application} (3.) All fees received under this Act shall be paid over to the Minister of Finance and shall form part of the Consolidated Revenue Fund of Canada. {Sidenote: No exemption from fees} (4.) No person shall be exempt from the payment of any fee or charge payable in respect of any services performed under this Act for such person. CLERICAL ERRORS NOT TO INVALIDATE {Sidenote: Clerical errors may be corrected} 40. Clerical errors which occur in the framing or copying of an instrument drawn by any officer or employee in or of the Department shall not be construed as invalidating such instrument, but when discovered they may be corrected under the authority of the Minister. RULES AND REGULATIONS {Sidenote: Rules, regulations and forms} 41. The Minister may, from time to time, subject to the approval of the Governor in Council, make such rules and regulations, and prescribe such forms as appear to him necessary and expedient for the purposes of this Act; and such regulations and forms, circulated in print for the use of the public, shall be deemed to be correct for the purposes of this Act. {Sidenote: Abrogation of common law rights} 42. No person shall be entitled to copyright or any similar right in any literary, dramatic, musical or artistic work otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force. {Sidenote: Orders in Council} 43. The Governor in Council may make orders for altering, revoking, or varying any order in council made under this Act, but any order made under this section shall not affect prejudicially any rights or interests acquired or accrued at the date when the order comes into operation, and shall provide for the protection of such rights and interests. {Sidenote: Publication} {Sidenote: Laid before Parliament} (2.) Every order in council made under this Act shall be published in _The Canada Gazette_, and shall be laid before Parliament as soon as may be after it is made, and shall have effect as if enacted in this Act. {Sidenote: Repeal of certain enactments} 44. Subject to the provisions of this Act, the enactments mentioned in the Second Schedule to this Act are, so far as they are operative in Canada, hereby repealed to the extent specified in the third column of that Schedule. {Sidenote: Repeal} 45. Chapter 70 of the Revised Statutes, 1906, and chapter 17 of the statutes of 1908, are repealed. {Sidenote: Commencement of Act} 46. This Act shall come into force on a day to be named by proclamation of the Governor General. FIRST SCHEDULE EXISTING RIGHTS ------------------------------------------------------------------------ EXISTING RIGHT | SUBSTITUTED RIGHT | ------------------------------------------------------------------------ (_a_) _In the case of Works other than Dramatic and Musical Works._ Copyright. Copyright as defined by this Act. (_b_) _In the case of Musical and Dramatic Works._ Both copyright and performing | Copyright as defined by this Act. right. | | Copyright, but not performing | Copyright as defined by this Act, right. | except the sole right to perform | the work or any substantial | part thereof in public. | Performing right, but not | The sole right to perform the copyright. | work in public, but none of the | other rights comprised in copy- | rightas defined by this Act. ------------------------------------------------------------------------ For the purposes of this Schedule the following expressions, where used in the first column thereof, have the following meanings:-- "copyright," in the case of a work which according to the law in force immediately before the commencement of this Act has not been published before that date and statutory copyright wherein depends on publication, includes the right at common law (if any) to restrain publication or other dealing with the work; "performing right," in the case of a work which has not been performed in public before the commencement of this Act, includes the right at common law (if any) to restrain the performance thereof in public. SECOND SCHEDULE ENACTMENTS REPEALED ----------------------+-----------------------------+------------------- SESSION AND | SHORT TITLE | EXTENT OF REPEAL CHAPTER | | ----------------------+-----------------------------+------------------- 8 Geo. 2. c. 13. | The Engraving Copyright | The whole Act. | Act, 1734. | 7 Geo. 3. c. 38. | The Engraving Copyright | The whole Act. | Act, 1767. | 15 Geo. 3. c. 53. | The Copyright Act, 1775. | Sections two, four | | and five. 17 Geo. 3. c. 57. | The Prints Copyright Act, | The whole Act. | 1777. | 54 Geo. 3. c. 56. | The Sculpture Copyright | The whole Act. | Act, 1814. | 3 Geo. 4. c. 15. | The Dramatic Copyright | The whole Act. | Act, 1833. | 5 & 6 Will. 4. c. 65. | The Lectures Copyright | The whole Act. | Act, 1835. | 6 & 7 Will. 4. c. 59. | The Prints and Engravings | The whole Act. | Copyright (Ireland) Act, | | 1836. | 6 & 7 Will. 4. c. 110 | The Copyright Act, 1836. | The whole Act. 5 & 6 Vict. c. 45. | The Copyright Act, 1842. | The whole Act. 7 & 8 Vict. c. 12. | The International Copyright | The whole Act. | Act, 1844. | 10 & 11 Vict. c. 95. | The Colonial Copyright, | The whole Act. | 1847. | 15 & 16 Vict. c. 12. | The International Copyright | The whole Act. | Act, 1852. | 25 & 26 Vict. c. 68. | The Fine Arts Copyright | Sections one to six. | Act, 1862. | In section eight | | the words "and | | pursuantto any | | Act for the | | protection of | | copyright | | engravings." | | Sections nine to | | twelve. 38 & 39 Vict. c. 12. | The International Copyright | The whole Act. | Act, 1875. | 39 & 40 Vict. c. 36. | The Customs Consolidation | Section forty-two, | Act, 1876. | from "Books wherein" | | to "such copyright | | will expire." | | Sections forty-four, | | forty-five and | | one hundred and | | fifty-two. 45 & 46 Vict. c. 40. | The Copyright (Musical | The whole Act. | Compositions) Act, 1882. | 49 & 50 Vict. c. 33. | The International Copyright | The whole Act. | Act, 1886. | 51 & 52 Vict. c. 17. | The Copyright (Musical | The whole Act. | Compositions) Act, 1888. | 52 & 53 Vict. c. 42. | The Revenue Act, 1889. | Section one, from | | "Books first | | published" to "as | | provided in that | | section." 2 Edw. 7. c. 15. | The Musical (Summary | The whole Act. | Proceedings) Copyright | | Act, 1902. | 6 Edw. 7. c. 36. | The Musical Copyright | The whole Act. | Act, 1906. | ----------------------+-----------------------------+------------------- 8. AUSTRALIAN COPYRIGHT ACT, 1905 (Assented to 21st December, 1905) Be it enacted by the King's Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia as follows:-- PART I.--PRELIMINARY {Sidenote: Short title} 1. _Short Title._--This Act may be cited as the Copyright Act, 1905. {Sidenote: Commencement} 2. _Commencement._--This Act shall commence on a day to be fixed by Proclamation. {Sidenote: Parts} 3. _Parts._--This Act is divided as follows:-- Part I.--Preliminary. Part II.--Administration. Part III.--Literary, Musical, and Dramatic Copyright. Part IV.--Artistic Copyright. Part V.--Infringement of Copyright. Part VI.--International and State copyright. Part VII.--Registration of Copyrights. Part VIII.--Miscellaneous. {Sidenote: Interpretation} 4. _Interpretation._--In this Act, unless the contrary intention appears-- "Artistic work" includes-- (_a_) Any painting, drawing, or sculpture; and (_b_) Any engraving, etching, print, lithograph, woodcut, photograph, or other work of art produced by any process, mechanical or otherwise, by which impressions or representations of works of art can be taken or multiplied: "Author" includes the personal representatives of an author: {Sidenote: Interpretation} "Book" includes any book or volume, and any part or division of a book or volume, and any article in a book or volume, and any pamphlet, periodical, sheet of letterpress, sheet of music, map, chart, diagram, or plan separately published, and any illustration therein: "Dramatic work," in addition to being included in the definition of book, means any tragedy, comedy, play, drama, farce, burlesque, libretto, of an opera, entertainment, or other work of a like nature, whether set to music or otherwise, lyrical work set to music, or other scenic or dramatic composition: "Lecture" includes a sermon: "Musical work" in addition to being included in the definition of book, includes any combination of melody and harmony, or either of them, printed, reduced to writing, or otherwise graphically produced or reproduced: "Periodical" means a review, magazine, newspaper, or other periodical work of a like nature: "Pirated artistic work" means a reproduction of an artistic work made in any manner without the authority of the owner of the copyright in the artistic work: "Pirated book" means a reproduction of a book made in any manner without the authority of the owner of the copyright in the book: "Portrait" includes any work the principal object of which is the representation of a person by painting, drawing, engraving, photography, sculpture, or any form of art: "Publish" and "Publication" in relation to a book refer to offer for sale or distribution, in each case with the privity of the author, so as to make the book accessible to the public: "The Registrar" means the Registrar of Copyrights or a Deputy Registrar of Copyrights: "State Copyright Act" means any State Act relating to the registration of the copyright or performing right, or lecturing right in books, or dramatic or musical works, or in artistic works, or fine art works, or in lectures. {Sidenote: Simultaneous publication or performance} 5. _What is simultaneous publication or performance._--For the purposes of this Act publication, performance, or delivery in the Commonwealth shall be deemed to be simultaneous with publication, performance, or delivery elsewhere if the period between the publications, performances, or deliveries does not exceed fourteen days. {Sidenote: Blasphemous, etc., matter} 6. _Blasphemous, &c., matter not protected._--No copyright, performing right, or lecturing right shall subsist under this Act in any blasphemous, indecent, seditious, or libelous work or matter. {Sidenote: Application of common law} 7. _Application of the Common Law._--Subject to this and any other Acts of the Parliament, the Common Law of England relating to proprietary rights in unpublished literary compositions, shall after the commencement of this Act, apply throughout the Commonwealth. {Sidenote: State copyright acts} 8. _State Copyright Acts not to apply to copyright under this Act._--(1.) The State Copyright Acts so far as they relate to the copyright in any book, the performing right in any musical or dramatic work, the lecturing right in any lecture, or the copyright in any artistic or fine art work shall not apply to any book, dramatic or musical work, lecture, or artistic work in which copyright, performing right, or lecturing right, subsists under this Act. {Sidenote: Rights under state laws} _Saving of rights under State laws._--(2.) Subject to Part II. of this Act, nothing in this Act shall affect the application of the laws in force in any State at the commencement of this Act to any copyright or other right in relation to books or dramatic or musical works or lectures or artistic or fine art works acquired under or protected by those laws before the commencement of this Act. PART II.--ADMINISTRATION _Division 1.--The Registrar and the Copyright Office_ {Sidenote: Registrar} 9. _Registrar._--(1.) There shall be a Registrar of Copyrights. (2.) The Governor-General may appoint one or more Deputy Registrars of Copyrights who shall, subject to the control of the Registrar of Copyrights, have all the powers conferred by this Act on the Registrar. {Sidenote: Copyright Office} 10. _Copyright Office._--For the purposes of this Act an office shall be established which shall be called the Copyright Office. {Sidenote: Seal} 11. _Seal of Copyright Office_.--There shall be a seal of the Copyright Office, and impressions thereof shall be judicially noticed. _Division 2.--The Transfer of the Administration of the State Copyright Acts_ {Sidenote: Transfer of administration} 12. _Transfer of administration._--The Governor-General may, by proclamation, declare that, from and after a date specified in the proclamation, the administration of the State Copyright Acts of any State so far as they relate to the registration of the copyright in any book, the performing right in any musical or dramatic work, the lecturing right in any lecture, and the copyright in any artistic or fine art work, or to the registration of any assignment or grant of, or licence in relation to, any such right, shall be transferred to the Commonwealth and thereupon, so far as is necessary for the purposes of this section-- {Sidenote: Effect of transfer} (_a_) _Effect of transfer of administration. Cf. Patents Act, 1903, ss. 18 and 19._--The State Copyright Acts of the State shall cease to be administered by the State, and shall thereafter be administered by the Commonwealth so far as is necessary for the purpose of completing then pending proceedings and of giving effect to then existing rights, and the Registrar shall collect for the State all fees which become payable thereunder; and (_b_) all powers and functions under any State Copyright Act vested in the Governor of the State or in the Governor with the advice of the Executive Council of the State or in any Minister officer or authority of the State shall vest in the Governor-General or in the Governor-General in Council or in the Minister officer or authority exercising similar powers under the Commonwealth as the case requires or as is prescribed; and (_c_) all records registers deeds and documents of the Copyright office of the State vested in or subject to the control of the State shall, by force of this Act, be vested in and made subject to the control of the Commonwealth. PART III.--LITERARY, MUSICAL, AND DRAMATIC COPYRIGHT {Sidenote: Copyright in books} 13. _Copyright in books._--(1.) The copyright in a book means the exclusive right to do, or authorize another person to do, all or any of the following things in respect of it:-- (_a_) To make copies of it: (_b_) To abridge it: (_c_) To translate it: (_d_) In the case of a dramatic work, to convert it into a novel or other non-dramatic work: (_e_) In the case of a novel or other non-dramatic work, to convert into a dramatic work: and (_f_) In the case of a musical work, to make any new adaptation, transposition, arrangement, or setting of it, or of any part of it, in any notation. (2.) Copyright shall subsist in every book, whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used, and has, after the commencement of this Act, been published in Australia, before or simultaneously with its first publication elsewhere. {Sidenote: Performing right} 14. _Performing right in dramatic and musical works._-- (1.) The performing right in a dramatic or musical work means the exclusive right to perform it, or authorise its performance in public. (2.) Performing right shall subsist in every dramatic or musical work, whether the author is a British subject or not, which has, after the commencement of this Act, been performed in public in Australia, before or simultaneously with its first performance in public elsewhere. {Sidenote: Lecturing right} 15. _Lecturing right in lectures._--(1.) The lecturing right in a lecture means the exclusive right to deliver it, or authorise its delivery, in public, and except as hereinafter provided, to report it. (2.) Lecturing right shall subsist in every lecture, whether the author is a British subject or not, which has, after the commencement of this Act, been delivered in public in Australia, before or simultaneously with its first delivery in public elsewhere. {Sidenote: Commencement} 16. _Commencement of copyright, performing right, and lecturing right._--(1.) The copyright in a book shall begin with its first publication in Australia. (2.) The performing right in a dramatic or musical work shall begin with its first performance in public in Australia. (3.) The lecturing right in a lecture shall begin with its first delivery in public in Australia. {Sidenote: Term} 17. _Term of copyright, performing right, and lecturing right._--(1.) The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture, shall subsist for the term of forty-two years or for the author's life and seven years whichever shall last the longer. (2.) Where the first publication of a book, the first performance in public of a musical or dramatic work, or the first delivery in public of a lecture takes place after the death of the author, the copyright, performing right, or lecturing right, as the case may be, shall subsist for the term of forty-two years. (3.) Where a book or a dramatic or musical work is written by joint authors the copyright and the performing right shall subsist for the term of forty-two years or their joint lives and the life of the survivor of them, and seven years, whichever shall last the longer. (4.) If a lecture is published as a book with the consent in writing of the owner of the lecturing right, the lecturing right shall cease. {Sidenote: Ownership} 18. _Ownership in copyright, performing right, and lecturing right._--(1.) The author of a book shall be the first owner of the copyright in the book. (2.) The author of a dramatic work or musical work shall be the first owner of the performing right in the dramatic or musical work. (3.) The author of a lecture shall be first owner of the lecturing right in the lecture. {Sidenote: Joint authors} 19. _Ownership in the case of joint authors._--Where there are joint authors of a book, or of a dramatic or musical work, or of a lecture, the copyright or the performing right, or the lecturing right, as the case may be, shall be the property of the authors. {Sidenote: Separate authors} 20. _Separate authors._--Where a book is written in distinct parts by separate authors and the name of each author is attached to the portion written by him, each author shall be entitled to copyright in the portion written by him in the same manner as if it were a separate book. {Sidenote: Encyclopædia and similar works} 21. _Encyclopædia and similar works._--The proprietor or projector of an encyclopædia or other similar permanent work of reference who employs some other person for valuable consideration in the composition of the whole or any part of the work shall be entitled to the copyright in the work in the same manner as if he were the author thereof. {Sidenote: Copyright in periodicals} 22. _Copyright in articles published in periodicals._--(1.) The author of any article, contributed for valuable consideration to and first published in a periodical, shall be entitled to copyright in the article as a separate work, but so that-- (_a_) he shall not be entitled to publish the article or authorise its publication until one year after the end of the year in which the article was first published and (_b_) his right shall not exclude the right of the proprietor of the periodical under this section. (2.) The proprietor of a periodical in which an article, which has been contributed for valuable consideration, is first published shall be entitled to copyright in the article, but so that-- (_a_) he shall not be entitled to publish the article or authorise its publication except in the periodical in its original form of publication, and (_b_) his right shall not exclude the right of the author of the article, under this section. {Sidenote: Articles without valuable consideration} 23. _Copyright in articles published in periodicals without_ _valuable consideration._--The author of any article contributed without valuable consideration to, and first published in, a periodical, shall be entitled to copyright in the article as a separate work. {Sidenote: Copyright, etc., personal property} 24. _Copyright, &c., to be personal property._--The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture shall be personal property, and shall be capable of assignment and of transmission by operation of law. {Sidenote: Copyright and other rights separate property} 25. _Copyright and other rights to be separate properties._--The copyright in a book, and the performing right in a dramatic or musical work and the lecturing right in a lecture shall be deemed to be distinct properties for the purposes of ownership, assignment, licence, transmission, and all other purposes. {Sidenote: Assignment} 26. _Assignment of copyright._--The owner of the copyright in a book, or of the performing right in a dramatic or musical work, or of the lecturing right in a lecture, may assign his right either wholly or partially and either generally or limited to any particular place or period, and may grant any interest therein by licence; but an assignment or grant shall not be valid unless it is in writing signed by the owner of the right in respect of which it is made or granted. {Sidenote: New editions} 27. _New editions._--Any second or subsequent edition of a book containing material or substantial alterations or additions shall be deemed to be a new book, but so as not to prejudice the right of any person to reproduce a former edition of the book or any part thereof after the expiration of the copyright in the former edition. Provided that while the copyright in a book subsists no person, other than the owner of the copyright in the book or a person authorised by him, shall be entitled to publish a second or subsequent edition thereof. {Sidenote: Abridgements, etc., for private use} 28. _Making of abridgment, &c., for private use._--Copyright in a book shall not be infringed by a person making an abridgment or translation of the book for his private use (unless he uses it publicly or allows it to be used publicly by some other person), or by a person making fair extracts from or otherwise fairly dealing with the contents of the book for the purpose of a new work, or for the purposes of criticism, review, or refutation, or in the ordinary course of reporting scientific information. {Sidenote: Translations or abridgments} 29. _Translations or abridgments._--Where the author has parted with the copyright in his book and a translation or abridgment of the book is made with the consent of the owner of the copyright by some person other than the author, notice shall be given in the title-page of every copy of the translation or abridgment that it has been made by some person other than the author. {Sidenote: Failure of author to make translation} 30. _Failure of author to make or cause translation of book._--Where a translation of a book into a particular language is not made within ten years from the date of the publication of the book by the owner of the copyright or by some person by his authority-- (_a_) Any person desirous of translating the book into that language may make an application in writing to the Minister for permission so to do: (_b_) The Minister may thereupon by notice in writing inform the owner of the copyright of such application and request him to make or cause to be made a translation of the book into that language within such time as the Minister deems reasonable or to show cause why such application should not be granted: (_c_) If the owner of the copyright fails to comply with such notice the Minister may grant such application. {Sidenote: Copyright in translations} 31. _Copyright in translations._--Copyright shall subsist in a lawfully-produced translation or abridgment of a book in like manner as if it were an original work. {Sidenote: Reservation of performing right} 32. _Notice of reservation of performing right._--(1.) Where a dramatic or musical work is published as a book, and it is intended that the performing right is to be reserved, the owner of copyright, whether he has parted with the performing right or not, shall cause notice of the reservation of the performing right to be printed on the title-page or in a conspicuous part of every copy of the book. (2.) _Defendant's rights where no notice of reservation of performing right._--Where-- {Sidenote: Defendant's rights where no notice} (_a_) proceedings are taken for the infringement of the performing right in a dramatic or musical work published as a book, and (_b_) the defendant proves to the satisfaction of the Court that he has in his possession a copy of the book containing the dramatic or musical work and that that copy was published with the consent of the owner of the copyright, and does not contain the notice required by this Act of the reservation of the performing right, judgment may be given in his favor either with or without costs as the Court, in its discretion, thinks fit; but in any such case the owner of the performing right (if he is not the owner of the copyright) shall be entitled to recover from the owner of the copyright damages in respect of the injury he has incurred by the neglect of the owner of the copyright to cause due notice to be given of the reservation of the performing right. {Sidenote: Report of lecture} 33. _Report of lecture in a newspaper._--(1.) Unless the reporting of a lecture is prohibited by a notice as in this section mentioned, the lecturing right in a lecture shall not be infringed by a report of the lecture in a newspaper. (2.) The notice prohibiting the reporting of a lecture may be given-- (_a_) orally at the beginning of the lecture; or (_b_) by a conspicuous written notice affixed, before the lecture is given, on the entrance doors of the building in which it is given or in a place in the room in which it is given. (3.) When a series of lectures is intended to be given by the same lecturer on the same subject, one notice only need be given in respect of the whole series. PART IV.--ARTISTIC COPYRIGHT {Sidenote: Artistic copyright} 34. _Meaning of copyright._--The copyright in an artistic work means the exclusive right of the owner of the copyright to reproduce or authorise another person to reproduce the artistic work, or any material part of it, in any manner, form, or size, in any material, or by any process, or for any purpose. 35. _Copyright in artistic works._--Copyright shall subsist in every artistic work whether the author is a British subject or not, which is made in Australia after the commencement of this Act. {Sidenote: Commencement and term} 36. _Commencement and term of artistic copyright._--The copyright in an artistic work shall begin with the making of the work, and shall subsist for the term of forty-two years or for the author's life and seven years whichever shall last the longer. {Sidenote: Ownership} 37. _Ownership of copyright in artistic work._--The author of an artistic work shall be the first owner of the copyright in the work. {Sidenote: Portraits} 38. _Copyright in portraits._--When an artistic work, being a portrait, is made to order for valuable consideration, the person to whose order it is made shall be entitled to the copyright therein as if he were the author thereof. {Sidenote: Photographs} 39. _Copyright in photographs._--(1.) When a photograph is made to order for valuable consideration the person to whose order it is made shall be entitled to the copyright therein as if he were the author thereof. (2). Subject to subsection (1) of this section, when a photograph is made by an employee on behalf of his employer the employer shall be deemed to be the author of the photograph. {Sidenote: Engravings and prints} 40. _Engravings and prints._--(1.) Subject to section thirty-four of this Act the engraver or other person who makes the plate or other instrument by which copies of an artistic work are multiplied shall be deemed to be the author of the copies produced by means of the plate or instrument. (2.) When the plate or other instrument mentioned in this section is made by an employee on behalf of his employer the employer shall be deemed to be the author of the copies produced by means of the plate or instrument. {Sidenote: Sale of painting, etc.} 41. _Copyright in case of sale of painting, statue, or bust._ (1.)--When the owner of the copyright in any artistic work being a painting, or a statue, bust, or other like work, disposes of such work for valuable consideration, but does not assign the copyright therein, the owner of the copyright (except as in this section mentioned) may in the absence of any agreement in writing to the contrary make a replica of such work. {Sidenote: Right to make replicas} _Right of author to make replicas of statues, etc., in public places._ (2.)--When a statue, bust, or other like work, whether made to order or not, is placed or is intended to be placed in a street or other like public place, the author may, in the absence of any agreement to the contrary, make replicas thereof. {Sidenote: Personal property} 42. _Artistic copyright is personal property._--The copyright in an artistic work shall be personal property, and shall be capable of assignment and of transmission by operation of law. {Sidenote: Copyright and ownership} 43. _Copyright and ownership in artistic works._--The copyright in an artistic work and the ownership of the artistic work shall be deemed to be distinct properties for the purposes of ownership, assignment, licence, transmission, and all other purposes. {Sidenote: Assignment} 44. _Assignment of copyright._--The owner of the copyright in an artistic work may assign his right wholly or partially and either generally or limited to any particular place or period and may grant any interest therein by licence; but an assignment or grant shall not be valid unless it is in writing signed by the owner of the copyright. PART V.--INFRINGEMENT OF COPYRIGHT {Sidenote: Infringement} 45. _Infringement of rights under Act._--If any person infringes any right conferred by this Act in respect of the right in a book, the performing right in dramatic or musical work, the lecturing right in a lecture, or the copyright in an artistic work, the owner of the right infringed may maintain an action for damages or penalties or profits, and for an injunction, or for any of those remedies. {Sidenote: Damages under performing or lecturing right} 46. _Damages in case of performing right or lecturing right._--In assessing the damages in respect of the infringement of the performing right in a dramatic or musical work or the lecturing right in a lecture, regard shall be had to the amount of profit made by the infringer by reason of the infringement, and to the amount of actual damage incurred by the owner of the performing or lecturing right. {Sidenote: Objection to title} 47. _Notice of objection to title._--The plaintiff in any action for the infringement of a right conferred by this Act shall be presumed to be the owner of the right which he claims, unless the defendant in his pleadings in defence pleads that the defendant disputes the title of the plaintiff, and states the grounds on which the plea is founded, and the name of the person, if any, whom the defendant alleges to be the owner of the right. {Sidenote: Limitation of actions} 48. _Limitation of actions._ (_Cf. 5-6 Vict. c. 45, s. 26._)--No action for any infringement of copyright, performing right, or lecturing right under this Act shall be maintainable unless it is commenced within two years next after the infringement is committed. {Sidenote: Property in pirated works} 49. _Property in pirated books or artistic work._--All pirated books and all pirated artistic works shall be deemed to be the property of the owner of the copyright in the book or work and may, together with the plates, blocks, stone, matrix, negative, or thing, if any, from which they are printed or made, be recovered by him by action or other lawful method. {Sidenote: Penalties} 50. _Penalties for dealing with pirated books._--If any person-- (_a_) sells, or lets for hire, or exposes offers or keeps for sale or hire, any pirated book or any pirated artistic work; or (_b_) distributes, or exhibits in public, any pirated book or any pirated artistic work; or (_c_) imports into Australia any pirated book or any pirated artistic work, he shall be guilty of an offence against this Act, and shall be liable to a penalty not exceeding Five pounds for each copy of such pirated book or pirated artistic work dealt with in contravention of this section, and also to forfeit to the owner of the copyright every such copy so dealt with, and also to forfeit the plates, blocks, stone, matrix, negative, or thing, if any, from which the pirated book or pirated artistic work was printed or made. Provided that the whole penalties inflicted on any one offender in respect of the same transaction shall not exceed Fifty pounds. Provided also that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court at the hearing that he did not know, and could not with reasonable care have ascertained, that the book was a pirated book or the work was a pirated artistic work. {Sidenote: Liability as to theatre} 51. _Liability in respect of use of theatre._--Where a dramatic or musical work is performed in a theatre or other place in infringement of the performing right of the owner of that right, the proprietor tenant or occupier who permitted the theatre or place to be used for the performance shall be deemed to have infringed the performing right and shall be guilty of an offence against this Act, and shall be liable to a penalty not exceeding Five pounds for each such offence and the court may, in addition to the penalty, order the defendant to pay to the owner of the performing right in respect of each such infringement a sum by way of damages to the amount of Ten pounds, or to such amount as the court deems equal to the profits made by the performance of the work, whichever sum is greater. Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court at the hearing that he did not know and could not with reasonable care have ascertained that the dramatic or musical work was performed in infringement of the performing right of the owner of that right. {Sidenote: Search warrant and seizure} 52. _Search warrant and seizure of pirated copies._--(1.) A justice of the peace may upon the application of the owner of the copyright in any book or in any artistic work or of the agent of such owner appointed in writing:-- (_a_) If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are being sold, or offered for sale--issue a warrant, in accordance with the form prescribed, authorising any constable to seize the pirated books or pirated artistic works and to bring them before a court of summary jurisdiction. (_b_) If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are to be found in any house, shop, or other place--issue a warrant, in accordance with the form prescribed, authorising any constable to search between sunrise and sunset, the place where the pirated books are supposed to be, and to seize and bring them or any books or artistic works reasonably suspected to be pirated books or pirated artistic works before a court of summary jurisdiction. (2.) A court of summary jurisdiction may, on proof that any books or artistic works brought before it in pursuance of this section are pirated books or pirated artistic works, order them to be destroyed or to be delivered up, subject to such conditions, if any, as the court thinks fit, to the owner of the copyright in the book or artistic work. {Sidenote: Delivery up of pirated works} 53. _Power of owner of copyright to require delivery to him of pirated books and works._-- (1.) The owner of the copyright in any book or artistic work, or the agent of such owner appointed in writing, may by notice, in accordance with the prescribed form, require any person to deliver up to him any pirated reproduction of the book or work, and every person to whom such notice has been given, and who has any pirated reproduction of the book or work in his possession or power, shall deliver up the pirated reproduction of the book or work in accordance with the notice. Penalty: Ten Pounds. (2.) A person shall not give any notice in accordance with this section without just cause. Penalty: Twenty pounds. (3.) In any prosecution under subsection (2) of this section the defendant shall be deemed to have given the notice without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of giving the notice he was the owner of the copyright in the book or artistic work or was the agent of such owner appointed in writing, and had reasonable ground to believe that the person to whom the notice was given had pirated reproductions of the book or work in his possession or power. {Sidenote: Power to forbid performance} 54.--_Power of owner of performing right to forbid performance in infringement of his right._--(1.) The owner of the performing right in a musical or dramatic work, or the agent of the owner appointed in writing, may, by notice in writing in accordance with the prescribed form, forbid the performance of the musical or dramatic work in infringement of his right, and require any person to refrain from performing or taking part in the performance of the musical or dramatic work, and every person to whom a notice has been given in accordance with this section shall refrain from performing or taking part in the performance of the musical or dramatic work specified in the notice in infringement of the performing right of such owner. Penalty: Ten pounds. (2.) A person shall not give any notice in pursuance of this section without just cause. Penalty: Twenty pounds. (3.) In any prosecution under subsection (2) of this section, the defendant shall be deemed to have given the notice without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of giving the notice he was the owner of the performing right in the musical or dramatic work, or the agent of the owner appointed in writing, and had reasonable ground to believe that the person to whom the notice was given was about to perform or take part in the performance of the musical or dramatic work in infringement of the performing right of the owner. {Sidenote: False representations} 55. _Penalty for false representations in notices._--Any person, who in any notice given in pursuance of this Act, makes a representation, which is false in fact and which he knows to be false or does not believe to be true, that he is (_a_) the owner of the copyright in any book or artistic work, or (_b_) the owner of the performing right in a musical or dramatic work, or (_c_) the agent of any such owner, shall be guilty of an offence against this Act. Penalty: Two years' imprisonment. {Sidenote: Request to police} 56. _Request to police to seize pirated books and works._-- (1.) The owner of the copyright in any book or artistic work or the agent of such owner appointed in writing may, in accordance with the prescribed form, request that any pirated reproductions of the book or work be seized by the police, and may lodge the request at any police station. (2.) Any police constable in the town or district in which the police station is situated (whether in the service of the Commonwealth or a State), may, at any time in the day time within seven days after the request was so lodged, seize all pirated reproductions of the book or work mentioned in the notice, and all reproductions of the book or work which he has reasonable ground to believe are pirated reproductions, found by him in the possession of any person other than the owner of the copyright in the book or work. (3.) Every police constable who seizes any books or works in pursuance of this section shall forthwith bring all such books or works before a court of summary jurisdiction. (4.) A court of summary jurisdiction may, on the application of any person interested, make such order for the disposal of the books or works as he thinks just. (5.) A person shall not lodge any request at any police station in accordance with this section without just cause. Penalty: Twenty pounds. (6.) In any prosecution under subsection (5) of this section the defendant shall be deemed to have lodged the request without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of lodging the request he was the owner of the copyright in the book or artistic work, or was the agent of such owner appointed in writing and had reasonable ground to believe that pirated reproductions of the book or work were being unlawfully sold, or let for hire, or exposed or offered or kept for sale or hire, or distributed, or exhibited in public, in the town or district in which the police station is situated. {Sidenote: Application of penalties} 57. _Application of penalties._--Where proceedings for any penalty under this Act are instituted by the owner of the copyright in any book or in any artistic work or by the owner of the artistic work, the penalty shall be paid to him by way of compensation for the injury he has sustained. In any other case the penalty shall be paid to the Consolidated Revenue Fund. {Sidenote: Aiders and abettors} 58. _Aiders and abettors._--Whoever aids, abets, counsels, or procures, or by act or omission is in any way, directly or indirectly, knowingly concerned in the commission of any offence against this Act, shall be deemed to have committed that offence, and shall be punishable accordingly. {Sidenote: Limitation in court of summary jurisdiction} 59. _Limitation of actions in court of summary jurisdiction._--Proceedings may be instituted in any court of summary jurisdiction for the recovery of any penalty under this Act, but no such proceedings shall be instituted after the expiration of six months from the date of the offence in respect of which the penalty is imposed. {Sidenote: Appeal} 60. _Appeal from courts of summary jurisdiction._--An appeal shall lie from any conviction or order (including any dismissal of any information, complaint, or application) of a court of summary jurisdiction, exercising jurisdiction with respect to any offence or matter under this Act, to the court and in the manner and time provided by the law of the State in which the proceedings were instituted in the case of appeals from courts of summary jurisdiction in that State. {Sidenote: Importation of pirated works} 61. _Importation of pirated works._--(1.) The following goods are prohibited to be imported:-- (_a_) All pirated books in which copyright is subsisting in Australia (whether under this Act or otherwise), and (_b_) All pirated artistic works in which copyright is subsisting in Australia (whether under this Act or otherwise). (2.) All pirated books and pirated artistic works imported into Australia contrary to this section shall be forfeited and may be seized by any officer of Customs. (3.) Subject to this Act the provisions of the Customs Act, 1901, shall apply to the seizure and forfeiture of pirated books and artistic works under this section to the same extent as if they were prohibited imports under that Act. (4.) The provisions of this section shall not apply to any book or artistic work unless the owner of the copyright therein or his agent has given written notice to the Minister of the existence of the copyright and of its term. (5.) A notice given to the Commissioners of Customs of the United Kingdom, by the owner of the copyright or his agent, of the existence of the copyright in a book or artistic work and of its term, and communicated by the said Commissioners to the Minister shall be deemed to have been given by the owner to the Minister. PART VI.--INTERNATIONAL AND STATE COPYRIGHT {Sidenote: Protection of international and state copyrights} 62. _Protection in Australia of international and State copyright._--The owner of any copyright or performing right in any literary, musical, or dramatic work or artistic work entitled to protection in Australia by virtue of any Act of the Parliament of the United Kingdom or entitled to protection in any State by virtue of any State Copyright Act in force at the commencement of this Act shall on obtaining a certificate of the registration of his copyright or performing right under this part of this Act have the same protection in the Commonwealth against the infringement of his copyright or performing right as the owner of any copyright or performing right under this Act. {Sidenote: Registration of international copyright} 63. _Registration of international copyright._--(1.) The owner of any copyright or performing right who desires to obtain the benefit of this part of this Act may, in manner and in accordance with the form prescribed, make application to the Registrar for the registration of his copyright or performing right. (2.)--The Registrar may thereupon, and on being satisfied by proof of the prescribed particulars and on payment of the prescribed fee, register the copyright or performing right and issue to the applicant a certificate of registration in accordance with the prescribed form. PART VII.--REGISTRATION OF COPYRIGHTS {Sidenote: Copyright registers} 64. _Copyright Registers._--The following Registers of copyrights shall be kept by the Registrar at the Copyrights Office:-- The Register of Literary Copyrights. The Register of Fine Arts Copyrights. The Register of International and State Copyrights. {Sidenote: Method of registration} 65. _Method of registration._--The owner of any copyright performing right or lecturing right under this Act may obtain registration of his right in the manner prescribed. {Sidenote: Registration of assignments and transmissions} 66. _Registration of assignments and transmissions._--When any person becomes entitled to any copyright performing right or lecturing right under this Act by virtue of any assignment or transmission, or to any interest therein by licence, he may obtain registration of the assignment, transmission, or licence in the manner prescribed. {Sidenote: How registration effected} 67. _How registration effected._--The registration of any copyright performing right or lecturing right under this Act, or of any assignment or transmission thereof or of any interest therein by licence, shall be effected by entering in the proper register, the prescribed particulars relating to the right, assignment, transmission, or licence. {Sidenote: Trusts not registered} 68. _Trusts not registered._--(1.) No notice of any trust expressed, implied, or constructive shall be entered in any Register of Copyrights under this Act or be receivable by the Registrar. (2.) Subject to this section, equities in respect of any copyright performing right or lecturing right under this Act may be enforced in the same manner as equities in respect of other personal property. {Sidenote: Register to be evidence} 69. _Register to be evidence._--Every Register of copyrights under this Act shall be _prima facie_ evidence of the particulars entered therein and documents purporting to be copies of any entry therein or extracts therefrom certified by the Registrar and sealed with the seal of the Copyrights Office shall be admissible in evidence in all Federal or State courts without further proof or production of the originals. {Sidenote: Certified copies} 70. _Certified copies._--Certified copies of entries in any register under this Act or of extracts therefrom shall, on payment of the prescribed fee, be given to any person applying for them. {Sidenote: Inspection of register} 71. _Inspection of register._--Each register under this Act shall be open to public inspection at all convenient times on payment of the prescribed fee. {Sidenote: Correction of register} 72. _Correction of register._--The registrar may, in prescribed cases and subject to the prescribed conditions, amend or alter any register under this Act by-- (_a_) correcting any error in any name, address, or particular; and (_b_) entering any prescribed memorandum or particular relating to copyright or other right under this Act. {Sidenote: Rectification of register by the court} 73. _Rectification of register by the court._--(1.) Subject to this Act the Supreme Court of any State or a judge thereof may, on the application of the Registrar or of any person aggrieved, order the rectification of any register under this Act by-- (_a_) the making of any entry wrongly omitted to be made in the register; or (_b_) the expunging of any entry wrongly made in or remaining on the register; or (_c_) the correction of any error or defect in the register. (2.) An appeal shall lie to the High Court from any order for the rectification of any register made by a Supreme Court or a Judge under this section. {Sidenote: No suit before registration} 74. _Owner cannot sue before registration._--(1.) The owner of any copyright or performing right under this Act or of any interest therein by licence shall not be entitled to bring any action or suit or institute any proceedings for any infringement of the copyright or performing right unless such right or interest has been registered in pursuance of this Act. (2.) When such right or interest has been registered the owner thereof may, subject to this Act, bring actions or suits or institute proceedings for infringements of the copyright or performing right, whether those infringements happened before or after the registration. (3.) This section shall not affect the right of the owner of the lecturing right in a lecture to bring actions or suits or institute proceedings for infringements of his lecturing right. {Sidenote: Deposit} 75. _Delivery of books to registrar._--(1.) Every person applying for the registration of the copyright in any book shall deliver to the Registrar two copies of the whole book with all maps and illustrations belonging thereto, finished and coloured in the same manner as the best copies of the book are published and bound, sewed, or stitched together, and on the best paper on which the book is printed. (2.) Every person applying for the registration of the copyright in any work of art shall deliver to the Registrar one copy of the work of art or a photograph of it. (3.) The Registrar shall refuse to register the copyright in any book or work of art until subsections (1) and (2) of this section have been complied with. (4.) One copy of each book delivered to the Registrar in pursuance of this section shall be forwarded by him to the librarian of the Parliament, and the other copy shall be retained by the Registrar, until otherwise prescribed. {Sidenote: False representation} 76. _False representation to registrar._ _Patents Act, 1903, s. 112._--No person shall wilfully make any false statement or representation to deceive the Registrar or any officer in the execution of this part of this Act, or to procure or influence the doing or omission of any thing in relation to this part of this Act or any matter thereunder. Penalty: Three years' imprisonment. PART VIII.--MISCELLANEOUS {Sidenote: Suppression of books} 77. _Provision against suppression of books._--If the Governor-General is satisfied that the owner of the copyright in any book, or of the performing right in any dramatic work or musical work, or of the lecturing right in any lecture, has refused, after the death of the author, to republish or allow republication of the book, or the public performance of the dramatic or musical work, or the publication as a book of the lecture, and that by reason thereof the book, dramatic work, musical work, or lecture is withheld from the public, he may grant any person applying for it a licence to republish the book, or to perform the dramatic work, or musical work, or to publish the lecture as a book, in such manner and subject to such conditions as to the Governor-General seem fit. {Sidenote: Award of costs} 78. _Power to award costs._--In any action or proceeding taken in any court under this Act, the court shall have power to award costs at its discretion. {Sidenote: Regulations} 79. _Regulations._--The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act, or for the conduct of any business relating to the Copyrights Office. III INTERNATIONAL COPYRIGHT UNION: CONVENTIONS 9. BERNE CONVENTION, 1886, with Paris amendments, 1896, _in italics_ [omissions bracketed]. ARTICLE I {Sidenote: Union to protect literary and artistic works} The contracting States are constituted into an Union for the protection of the rights of authors over their literary and artistic works. ARTICLE IV {Sidenote: Definition of "literary and artistic works"} The expression "literary and artistic works" comprehends books, pamphlets, and all other writings; dramatic or dramatico-musical works, musical compositions with or without words; works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architecture, or science in general; in fact, every production whatsoever in the literary, scientific, or artistic domain which can be published by any mode of impression or reproduction. PARIS II, 1 {Sidenote: Works of architecture protected} (_a._) _In the countries of the Union in which protection is accorded not only to architectural designs, but to the actual works of architecture, those works are admitted to the benefit of the provisions of the Convention of Berne and of the present additional act._ PROTOCOL {Sidenote: Choreographic works protected} 2. As regards Article IX, it is agreed that those countries of the Union whose legislation implicitly includes choreographic works amongst dramatico-musical works, expressly admit the former works to the benefits of the Convention concluded this day. It is, however, understood that questions which may arise on the application of this clause shall rest within the competence of the respective tribunals to decide. ARTICLE VI {Sidenote: Translations, arrangements, and adaptations protected} Authorized translations are protected as original works. They consequently enjoy the protection stipulated in Articles II and III as regards their unauthorized reproduction in the countries of the Union. {Sidenote: New translations by other writers} It is understood that, in the case of a work for which the translating right has fallen into the public domain, the translator cannot oppose the translation of the same work by other writers. PROTOCOL {Sidenote: Photographic works protected} 1. As regards Article IV, it is agreed [that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention concluded to-day, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legislation, except in the case of international engagements already existing, or which may hereafter be entered into by them.] PARIS II, 1 (_b._) _Photographic works, and those obtained by similar processes, are admitted to the benefit of the provisions of these acts, in so far as the_ _domestic legislation allows this to be done, and according to the measure of protection which it gives to similar national works._ [PROTOCOL 1, PAR. 2] {Sidenote: Photograph of work of art protected} It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention _and the additional act_, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights. ARTICLE II {Sidenote: Authors to enjoy in countries of the Union the rights granted to natives} Authors of any one of the countries of the Union, or their lawful representatives, shall enjoy in the other countries for their works [whether published in one of those countries or unpublished], _either not published or published for the first time in one of those countries_, the rights which the respective laws do now or may hereafter grant to natives. {Sidenote: No formalities required} {Sidenote: Conditions and formalities of country of origin} The enjoyment of these rights is subject to the accomplishment of the conditions and formalities prescribed by law in the country of origin of the work, and cannot exceed in the other countries the term of protection granted in the said country of origin. [PARIS DECLARATION] 1. _By the terms of paragraph 2 of Article II of the Convention, the protection granted by the aforementioned Act depends solely on the accomplishment in the country of origin of the work of the conditions and formalities that may be prescribed by the legislation of that country. The same rule applies to the protection of the photographic works mentioned in No. 1 (b), of the modified "Protocole de Clôture."_ [ART. II, PAR. 3, 4] {Sidenote: Definition of country of origin} The country of origin of the work is that in which the work is first published, or if such publication takes place simultaneously in several countries of the Union, that one of them in which the shortest term of protection is granted by law. For unpublished works the country to which the author belongs is considered the country of origin of the work. PARIS DECLARATION {Sidenote: Published works} 2. _By "published" works must be understood works actually issued to the public in one of the countries of the Union. Consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of a work of art, do not constitute publication in the sense of the aforementioned Acts._ ARTICLE III {Sidenote: Authors not belonging to countries of the Union also protected if they first publish in a Union country} [The stipulations of the present Convention apply equally to the publishers of literary and artistic works published in one of the countries of the Union, but of which the authors belong to a country which is not a party to the Union.] _Authors, not subjects of one of the countries of the Union, but who shall have published or caused to be published for the first time, their literary or artistic works in one of those countries, shall enjoy for those works the protection accorded by the Berne Convention, and by the present additional act._ [ART. II, PAR. 2] The enjoyments of these rights ... cannot exceed in the other countries the term of protection granted in the said country of origin. [ART. II, ADD. PAR.] {Sidenote: Term for photographic, posthumous, anonymous or pseudonymous works} _Posthumous works are included amongst protected works_. ARTICLE V {Sidenote: Exclusive right of translation} Authors of any of the countries of the Union, or their lawful representatives, shall enjoy in the other countries the exclusive right of making or authorizing the translation of their works [until the expiration of ten years from the publication of the original work in one of the countries of the Union] _during the whole duration of the right in the original work. But the exclusive right of translation shall cease to exist when the author shall not have made use of it within a period of ten years from the first publication of the original_ _work, by publishing or causing to be published in one of the countries of the Union, a translation in the language for which protection shall be claimed._ {Sidenote: Works published in incomplete parts} For works published in incomplete parts ("livraisons") the period of ten years commences from the date of publication of the last part of the original work. {Sidenote: Works published in several volumes} For works composed of several volumes published at intervals, as well as for bulletins or collections ("cahiers") published by literary or scientific societies, or by private persons, each volume, bulletin, or collection is, with regard to the period of ten years, considered a separate work. In the cases provided for by the present article, and for the calculation of the period of protection, the 31st of December of the year in which the work was published is admitted as the date of publication. ARTICLE VII {Sidenote: Serials and other works in newspapers or periodicals protected} _Serial stories ("romans-feuilletons"), including novels, published in newspapers or periodicals of one of the countries of the Union, cannot be reproduced, in original or in translation, in the other countries, without the authorization of their authors or of their lawful representatives._ {Sidenote: Reproduction of newspaper articles} [Articles from newspapers or periodicals published in any of the countries of the Union may be reproduced in original or in translation in the other countries of the Union, unless the authors or publishers have expressly forbidden it. For periodicals it is sufficient if the prohibition is made in a general manner at the beginning of each number of the periodical.] _This applies equally to other articles in newspapers or periodicals, whenever the authors or publishers shall have expressly declared in the paper or periodical in which they may have published them, that they forbid their reproduction. For periodicals it is sufficient if the prohibition is made in a general way, at the beginning of each number._ _In the absence of prohibition, reproduction will be permitted on condition of indicating the source._ {Sidenote: News matter not protected} This prohibition cannot in any case apply to articles of political discussion, [or to the reproduction of news of the day or current topics,] _to the news of the day, or to current topics_. ARTICLE VIII {Sidenote: Extracts from literary or artistic works} As regards the liberty of extracting portions from literary or artistic works for use in publications destined for educational or scientific purposes or for chrestomathies, the matter is to be decided by the legislation of the different countries of the Union, or by special arrangements existing or to be concluded between them. ARTICLE IX {Sidenote: Representation of dramatic or dramatico-musical works} The stipulations of Article II apply to the public representation of dramatic or dramatico-musical works whether such works be published or not. {Sidenote: Representation of translations} Authors of dramatic or dramatico-musical works, or their lawful representatives, are, during the existence of their exclusive right of translation, equally protected against the unauthorized public representation of translations of their works. {Sidenote: Notice of prohibition of performance not required} The stipulations of Article II apply equally to the public performance of unpublished musical works, or of published works in which the author has expressly declared on the title-page or commencement of the work that he forbids the public performance. ARTICLE X {Sidenote: Adaptations, etc., considered as infringements} Unauthorized indirect appropriations of a literary or artistic work of various kinds such as adaptations, arrangements of music, etc., are specially included amongst the illicit reproductions to which the present Convention applies, when they are only the reproduction of a particular work, in the same form, or in another form, with non-essential alterations, or abridgements, so made as not to confer the character of a new original work. PARIS DECLARATION 3. _The transformation of a novel into a play, or of a play into a novel, comes under the stipulations of Article X._ [ARTICLE X, PAR. 2] It is agreed that, in the application of the present article, the tribunals of the various countries of the Union will, if there is occasion, take into account limitations of their respective laws. PROTOCOL 3. It is understood that the manufacture and sale of instruments for the mechanical reproduction of musical airs which are copyright, shall not be considered as constituting an infringement of musical copyright. ARTICLE XI {Sidenote: Author's name on work as proof of authorship} In order that the authors of works protected by the present Convention shall, in the absence of proof to the contrary, be considered as such, and be consequently admitted to institute proceedings against piracies before the courts of the various countries of the Union, it will be sufficient that their name be indicated on the work in the accustomed manner. {Sidenote: Publisher of anonymous or pseudonymous works considered as representative of author} For anonymous or pseudonymous works, the publisher whose name is indicated on the work is entitled to protect the rights belonging to the author. He is, without other proof, reputed the lawful representative of the anonymous or pseudonymous author. It is, nevertheless, agreed that the tribunals may, if necessary, require the production of a certificate from the competent authority to the effect that the formalities prescribed by law in the country of origin have been accomplished, as contemplated in Article II. ARTICLE XII {Sidenote: Seizure of pirated copies} Pirated works may be seized [on importation into] _by the competent authorities of_ those countries of the Union where the original work enjoys legal protection. {Sidenote: Seizure to be made according to the laws of each country} The seizure shall take place conformably to the domestic law of each State. ARTICLE XIII {Sidenote: Each government to exercise supervision} It is understood that the provisions of the present Convention cannot in any way derogate from the right belonging to the Government of each country of the Union to permit, to control, or to prohibit, by measures of domestic legislation or police, the circulation, representation, or exhibition of any works or productions in regard to which the competent authority may find it necessary to exercise that right. ARTICLE XIV {Sidenote: Convention to apply to all works not in public domain} Under the reserves and conditions to be determined by common agreement, the present Convention applies to all works which at the moment of its coming into force have not fallen into the public domain in the country of origin. PROTOCOL {Sidenote: Special conventions and domestic legislation may govern} 4. The common agreement alluded to in Article XIV of the Convention is established as follows: The application of the Convention _and of the additional act_ to works which have not fallen into the public domain _in the country of origin_ at the time when [it comes] _these acts came_ into force, shall operate according to the stipulations on this head which may be contained in special conventions either existing or to be concluded. In the absence of such stipulations between any countries of the Union, the respective countries shall regulate, each for itself, by its domestic legislation, the manner in which the principle contained in Article XIV is to be applied. {Sidenote: Application to translation} _The stipulations of Article XIV of the Convention of Berne and of the present number of the "Protocole de Clôture" apply equally to the exclusive right of translation, as granted by the present additional act._ {Sidenote: Provisions to apply to new accessions} _The above-mentioned temporary provisions are applicable in case of new accessions to the Union._ ARTICLE XV {Sidenote: More extensive rights may be secured by special treaties} It is understood that the Governments of the countries of the Union reserve to themselves respectively the right to enter into separate and particular arrangements between each other, provided always that such arrangements confer upon authors or their lawful representatives more extended rights than those granted by the Union, or embody other stipulations not contrary to the present Convention. ADDITIONAL ARTICLE {Sidenote: Convention not to affect existing conventions conferring more extended rights} The Convention concluded this day in no wise affects the maintenance of existing conventions between the contracting States, provided always that such conventions confer on authors, or their lawful representatives, rights more extended than those secured by the Union, or contain other stipulations which are not contrary to the said Convention. PROTOCOL {Sidenote: Protocol integral part of Convention} 7. The present Final Protocol, which shall be ratified with the Convention concluded this day, shall be considered as forming an integral part of the said Convention, and shall have the same force, effect, and duration. ARTICLE XVI {Sidenote: Bureau of the International Union} An International Office is established, under the name of "Office of the International Union for the Protection of Literary and Artistic Works." {Sidenote: Under control of Switzerland} This Office, of which the expenses will be borne by Administrations of all the countries of the Union, is placed under the high authority of the Superior Administration of the Swiss Confederation, and works under its direction. The functions of this Office are determined by common accord between the countries of the Union. PROTOCOL {Sidenote: Organization} 5. The organization of the International Office, established in virtue of Article XVI of the Convention, shall be fixed by a regulation which shall be drawn up by the Government of the Swiss Confederation. {Sidenote: Language of Office to be French} The official language of the International Office will be French. {Sidenote: Duties of International Office} The International Office will collect all kinds of information relative to the protection of the rights of authors over their literary and artistic works. It will arrange and publish such information. It will study questions of general utility likely to be of interest to the Union, and, by the aid of documents placed at its disposal by the different administrations, will edit a periodical publication in the French language treating questions which concern the Union. The governments of the countries of the Union reserve to themselves the faculty of authorizing, by common accord, the publication by the Office of an edition in one or more other languages, if experience should show this to be requisite. {Sidenote: Will furnish information as to copyright} The International Office will always hold itself at the disposal of members of the Union, with the view to furnish them with any special information they may require relative to the protection of literary and artistic works. {Sidenote: Annual report of Director of International Bureau} The Director of the International Bureau ... will make an annual report on his administration, which shall be communicated to all the members of the Union. {Sidenote: Expenses of the International Office to be shared by contracting States} The expenses of the Office of the International Union shall be shared by the contracting States. Unless a fresh arrangement be made, they cannot exceed a sum of sixty thousand francs a year. This sum may be increased by the decision of one of the Conferences provided for in Article XVII. {Sidenote: Method of sharing expenses} The share of the total expense to be paid by each country shall be determined by the division of the contracting and acceding States into six classes, each of which shall contribute in the proportion of a certain number of units, viz.: First class 25 units Second class 20 units Third class 15 units Fourth class 10 units Fifth class 5 units Sixth class 3 units These coefficients will be multiplied by the number of States of each class, and the total product thus obtained will give the number of units by which the total expense is to be divided. The quotient will give the amount of the unity of expense. Each State will declare, at the time of its accession, in which of the said classes it desires to be placed. {Sidenote: Swiss Administration to prepare the budget of the International Office, etc.} The Swiss Administration will prepare the budget of the Office, superintend its expenditure, make the necessary advances, and draw up the annual account, which shall be communicated to all the other Administrations. ARTICLE XVII {Sidenote: Revision of Convention} The present Convention may be submitted to revisions in order to introduce therein amendments calculated to perfect the system of the Union. {Sidenote: Future conferences} Questions of this kind, as well as those which are of interest to the Union in other respects, will be considered in Conferences to be held successively in the countries of the Union by delegates of the said countries. PROTOCOL {Sidenote: Country where a conference is to be held to prepare programme} (5.) The Administration of the country where a Conference is about to be held, will prepare the programme of the Conference with the assistance of the International Office. {Sidenote: Director of the International Office to participate} The Director of the International Office will attend the sittings of the Conferences, and will take part in the discussion without a deliberative voice. [ART. XVII, PAR. 3] {Sidenote: Alterations of Convention must be by unanimous consent} It is understood that no alteration in the present Convention shall be binding on the Union except by the unanimous consent of the countries comprising it. PROTOCOL {Sidenote: Next Conference to be held at Paris} 6. The next Conference shall be held at Paris between four and six years from the date of the coming into force of the Convention. The French Government will fix the date within these limits after having consulted the International Office. ARTICLE XVIII {Sidenote: Accession of other countries} Countries which have not become parties to the present Convention, and which grant by their domestic law the protection of rights secured by this Convention, shall be admitted to accede thereto on request to that effect. Such accession shall be notified in writing to the Government of the Swiss Confederation, who will communicate it to all the other countries of the Union. Such accession shall imply full adhesion to all the clauses and admission to all the advantages provided by the present Convention. ARTICLE XIX {Sidenote: Accession for colonies or foreign possessions} Countries acceding to the present Convention shall also have the right to accede thereto at any time for their colonies of foreign possessions. They may do this either by a general declaration comprehending all their colonies or possessions within the accession, or by specially naming those comprised therein, or by simply indicating those which are excluded. ARTICLE XXI {Sidenote: Convention to be ratified} The present Convention shall be ratified, and the ratifications exchanged at Berne, within the space of one year at the latest. PROTOCOL {Sidenote: Exchange of ratifications} 7. It is agreed that, as regards the exchange of ratifications contemplated in Article XXI, each contracting party shall give a single instrument, which shall be deposited, with those of the other States, in the Government archives of the Swiss Confederation. Each party shall receive in exchange a copy of the _procès-verbal_ of the exchange of ratifications, signed by the plenipotentiaries present. ARTICLE XX {Sidenote: Convention to take effect three months after exchange of ratifications} The present Convention shall be put in force three months after the exchange of the ratifications, and shall remain in effect for an indefinite period until the termination of a year from the day on which it may have been denounced. {Sidenote: Denunciation of Convention} [Such denunciation shall be made to the Government authorized to receive accessions, and shall only be effective as regards the country making it, the Convention remaining in full force and effect for the other countries of the Union.] _This denunciation shall be addressed to the Government of the Swiss Confederation. It shall only take effect in respect of the country which shall have made it, the Convention remaining operative for the other countries of the Union._ PARIS III {Sidenote: Accession of other countries to Paris Acts} _The countries of the Union which have not become parties to the present Additional Act and Declaration shall be allowed to accede thereto at any time, on their request to that effect. The same rule shall apply to the countries which may eventually accede either to the Convention of the 9th September,_ 1886, _or to the Convention or to the Additional Act or to the Declaration of the 4th May, 1896. It shall be sufficient for the purpose if a notification is addressed in writing to the Swiss Federal Council, who will, in turn, notify this accession to the other Governments._ PARIS IV {Sidenote: Paris Acts to be ratified} _The present Additional Act and Declaration shall have the same force and duration_ _as the Convention of the 9th September, 1886._ _These shall be ratified, and the ratification shall be exchanged at Paris in the form adopted for that Convention, as soon as possible, and within a year at the latest._ _Either shall come into force between the countries who have ratified it three months after this exchange._ 10. BERLIN CONVENTION, 1908, with references to parallel articles of Berne-Paris Convention. ARTICLE 1 {Sidenote: Union to protect literary and artistic works} The contracting States are constituted into an Union for the protection of the rights of authors over their literary and artistic works. ARTICLE 2 {Sidenote: Definition of "literary and artistic works"} The expression "literary and artistic works" includes all productions in the literary, scientific or artistic domain, whatever the mode or form of reproduction, such as: books, pamphlets and other writings; dramatic or dramatico-musical works; choreographic works and pantomimes, the stage directions ("_mise en scène_") of which are fixed in writing or otherwise; musical compositions with or without words; drawings, paintings, works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences. {Sidenote: Translations, arrangements, and adaptations protected} Translations, adaptations, arrangements of music and other reproductions transformed from a literary or artistic work, as well as compilations from different works, are protected as original works without prejudice to the rights of the author of the original work. The contracting countries are pledged to secure protection in the case of the works mentioned above. {Sidenote: Works of art applied to industry} Works of art applied to industry are protected so far as the domestic legislation of each country allows. ARTICLE 3 {Sidenote: Photographic works protected} The present Convention applies to photographic works and to works obtained by any process analogous to photography. The contracting countries are pledged to guarantee protection to such works. ARTICLE 4 {Sidenote: Authors to enjoy in countries of the Union the rights granted to natives} Authors within the jurisdiction of one of the countries of the Union enjoy for their works, whether unpublished or published for the first time in one of the countries of the Union, such rights, in the countries other than the country of origin of the work, as the respective laws now accord or shall hereafter accord to natives, as well as the rights specially accorded by the present Convention. {Sidenote: No formalities required} {Sidenote: [Conditions and formalities of country of origin]} The enjoyment and the exercise of such rights are not subject to any formality; such enjoyment and such exercise are independent of the existence of protection in the country of origin of the work. Consequently, apart from the stipulations of the present Convention, the extent of the protection, as well as the means of redress guaranteed to the author to safeguard his rights, are regulated exclusively according to the legislation of the country where the protection is claimed. {Sidenote: Definition of country of origin} The following is considered as the country of origin of the work: for unpublished works, the country to which the author belongs; for published works, the country of first publication, and for works published simultaneously in several countries of the Union, the country among them whose legislation grants the shortest term of protection. For works published simultaneously in a country outside of the Union and in a country within the Union, it is the latter country which is exclusively considered as the country of origin. {Sidenote: Published works} By published works ("_oeuvres publiées_") must be understood, according to the present Convention, works which have been issued ("_oeuvres editées_"). The representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of a work of art and the construction of a work of architecture do not constitute publication. ARTICLE 5 {Sidenote: Authors of countries of the Union first published in another country} Authors within the jurisdiction of one of the countries of the Union who publish their works for the first time in another country of the Union, have in this latter country the same rights as national authors. ARTICLE 6 {Sidenote: Authors not belonging to countries of the Union also protected if they first publish in a Union country} Authors not within the jurisdiction of any one of the countries of the Union, who publish for the first time their works in one of these countries, enjoy in that country the same rights as national authors, and in the other countries of the Union the rights accorded by the present Convention. ARTICLE 7 {Sidenote: Term of protection life and 50 years} The term of protection granted by the present Convention comprises the life of the author and fifty years after his death. {Sidenote: If not adopted, laws of country to govern term} In case this term, however, should not be adopted uniformly by all the countries of the Union, the duration of the protection shall be regulated by the law of the country where protection is claimed, and can not exceed the term granted in the country of origin of the work. The contracting countries will consequently be required to apply the provision of the preceding paragraph only to the extent to which it agrees with their domestic law. {Sidenote: Term for photographic, posthumous, anonymous or pseudonymous works} For photographic works and works obtained by a process analogous to photography, for posthumous works, or anonymous or pseudonymous works, the term of protection is regulated by the law of the country where protection is claimed, but this term may not exceed the term fixed in the country of origin of the work. ARTICLE 8 {Sidenote: Exclusive right of translation} Authors of unpublished works within the jurisdiction of one of the countries of the Union, and authors of works published for the first time in one of these countries enjoy in the other countries of the Union during the whole term of the right in the original work the exclusive right to make or to authorize the translation of their works. ARTICLE 9 {Sidenote: Serials and other works in newspapers or periodicals protected} Serial stories (_romans-feuilletons_), novels and all other works, whether literary, scientific or artistic, whatever may be their subject, published in newspapers or periodicals of one of the countries of the Union, may not be reproduced in the other countries without the consent of the authors. {Sidenote: Reproduction of newspaper articles} With the exception of serial stories and of novels ("_des romans-feuilletons et des nouvelles_") any newspaper article may be reproduced by another newspaper if reproduction has not been expressly forbidden. The source, however, must be indicated. The confirmation of this obligation shall be determined by the legislation of the country where protection is claimed. {Sidenote: News matter not protected} The protection of the present Convention does not apply to news of the day or to miscellaneous news having the character merely of press information. ARTICLE 10 {Sidenote: Extracts from literary or artistic works} As regards the liberty of extracting portions from literary or artistic works for use in publications destined for educational or scientific purposes or for chrestomathies, the matter is to be decided by the legislation of the different countries of the Union, or by special arrangements existing or to be concluded between them. ARTICLE 11 {Sidenote: Representation of dramatic or dramatico-musical works} The stipulations of the present Convention apply to the public representation of dramatic or dramatico-musical works and to the public performance of musical works, whether these works are published or not. {Sidenote: Representation of translations} Authors of dramatic or dramatico-musical works are protected, during the term of their copyright in the original work, against the unauthorized public representation of a translation of their works. {Sidenote: Notice of prohibition of performance not required} In order to enjoy the protection of this article, authors, in publishing their works, are not obliged to prohibit the public representation or public performance of them. ARTICLE 12 {Sidenote: Adaptations, etc., considered as infringements} Unauthorized indirect appropriations of a literary or artistic work of various kinds such as adaptations, arrangements of music, transformations of a romance or novel or of a poem into a theatrical piece and vice versa, etc., are specially included amongst the illicit reproductions to which the present Convention applies, when they are only the reproduction of such work in the same form or in another form with non-essential alterations, or abridgements, so made as not to confer the character of a new original work. ARTICLE 13 {Sidenote: Adaptation of musical works to mechanical instruments} Authors of musical works have the exclusive right to authorize: (1) the adaptation of these works to instruments serving to reproduce them mechanically; (2) the public performance of the same works by means of these instruments. {Sidenote: Each country to regulate for itself the manner in which Convention shall apply} The limitations and conditions relative to the application of this article shall be determined by the domestic legislation of each country in its own case; but all limitations and conditions of this nature shall have an effect strictly limited to the country which shall have adopted them. {Sidenote: Provision not retroactive} The provisions of paragraph 1 have no retroactive effect, and therefore are not applicable in a country of the Union to works which, in that country, shall have been lawfully adapted to mechanical instruments before the going into force of the present Convention. {Sidenote: Importation of mechanical musical appliances} The adaptations made by virtue of paragraphs 2 and 3 of this article and imported without the authorization of the parties interested into a country where they are not lawful, may be seized there. ARTICLE 14 {Sidenote: Right of reproduction by cinematograph protected} Authors of literary, scientific or artistic works have the exclusive right to authorize the reproduction and the public representation of their works by means of the cinematograph. {Sidenote: Cinematographic productions protected} Cinematographic productions are protected as literary or artistic works when by the arrangement of the stage effects or by the combination of incidents represented, the author shall have given to the work a personal and original character. Without prejudice to the rights of the author in the original work, the reproduction by the cinematograph of a literary, scientific or artistic work is protected as an original work. {Sidenote: Also any analogous production} The preceding provisions apply to the reproduction or production obtained by any other process analogous to that of the cinematograph. ARTICLE 15 {Sidenote: Author's name on work as proof of authorship} In order that the authors of works protected by the present Convention shall, in the absence of proof to the contrary, be considered as such, and be consequently admitted to institute proceedings against pirates before the courts of the various countries of the Union, it will be sufficient that their name be indicated on the work in the accustomed manner. {Sidenote: Publsiher of anonymous or pseudonymous works considered as representative of author} For anonymous or pseudonymous works, the publisher whose name is indicated on the work is entitled to protect the rights belonging to the author. He is, without other proof, reputed the lawful representative of the anonymous or pseudonymous author. ARTICLE 16 {Sidenote: Seizure of pirated copies} All infringing works may be seized by the competent authorities of the countries of the Union where the original work has a right to legal protection. Seizure may also be made in these countries of reproductions which come from a country where the copyright in the work has terminated, or where the work has not been protected. {Sidenote: Seizure to be made according to the laws of each country} The seizure shall take place conformably to the domestic law of each State. ARTICLE 17 {Sidenote: Each government to exercise supervision} The provisions of the present Convention cannot in any way derogate from the right belonging to the Government of each country of the Union to permit, to control, or to prohibit, by measures of domestic legislation or police, the circulation, representation, or exhibition of any works or productions in regard to which the competent authority may find it necessary to exercise that right. ARTICLE 18 {Sidenote: Convention to apply to all works not in public domain} The present Convention applies to all works which, at the moment of its coming into force, have not fallen into the public domain of their country of origin because of the expiration of the term of protection. But if a work by reason of the expiration of the term of protection which was previously secured for it has fallen into the public domain of the country where protection is claimed, such work will not be protected anew. {Sidenote: Special conventions and domestic legislation may govern} This principle will be applied in accordance with the stipulations to that effect contained in the special Conventions either existing or to be concluded between countries of the Union, and in default of such stipulations, its application will be regulated by each country in its own case. {Sidenote: Provisions to apply to new accessions} The preceding provisions apply equally in the case of new accessions to the Union and where the term of protection would be extended by the application of Article 7. ARTICLE 19 {Sidenote: More extensive rights may be granted by domestic legislation} The provisions of the present Convention do not prevent a claim for the application of more favorable provisions which may be enacted by the legislation of a country of the Union in favor of foreigners in general. ARTICLE 20 {Sidenote: More extensive rights may be secured by special treaties} The governments of the countries of the Union reserve the right to make between themselves special treaties, when these treaties would confer upon authors more extended rights than those accorded by the Union, or when they contain other stipulations not conflicting with the present Convention. The provisions of existing treaties which answer the aforesaid conditions remain in force. ARTICLE 21 {Sidenote: Bureau of the International Union} The International Office instituted under the name of "Bureau of the International Union for the Protection of Literary and Artistic Works" (_Bureau de l'Union Internationale pour la protection des oeuvres littéraires et artistiques_) is maintained. {Sidenote: Under control of Switzerland} This Bureau is placed under the high authority of the Government of the Swiss Confederation, which controls its organization and supervises its working. {Sidenote: Language of Office to be French} The official language of the International Office is French. ARTICLE 22 [Duties of International Office] The International Office collects all kinds of information relative to the protection of the rights of authors over their literary and artistic works. It arranges and publishes such information. It studies questions of general utility likely to be of interest to the Union, and, by the aid of documents placed at its disposal by the different administrations, edits a periodical publication in the French language treating questions which concern the Union. The governments of the countries of the Union reserve to themselves the faculty of authorizing, by common accord, the publication by the Office of an edition in one or more other languages, if experience should show this to be requisite. {Sidenote: Will furnish information as to copyright} The International Office must always hold itself at the disposal of members of the Union, with the view to furnish them with any special information they may require relative to the protection of literary and artistic works. {Sidenote: Annual report of Director of International Bureau} The Director of the International Bureau makes an annual report on his administration, which is communicated to all the members of the Union. ARTICLE 23 {Sidenote: Expenses of the International Office to be shared by contracting States} The expenses of the Office of the International Union are shared by the contracting States. Unless a fresh arrangement be made, they cannot exceed a sum of sixty thousand francs a year. This sum may be increased by the decision of one of the Conferences provided for in Article 24. {Sidenote: Method of sharing expenses} The share of the total expense to be paid by each country is determined by the division of the contracting and acceding States into six classes, each of which contributes in the proportion of a certain number of units, viz.: First class 25 units Second class 20 units Third class 15 units Fourth class 10 units Fifth class 5 units Sixth class 3 units These coefficients are multiplied by the number of States of each class, and the total product thus obtained gives the number of units by which the total expense is to be divided. The quotient gives the amount of the unity of expense. Each State will declare, at the time of its accession, in which of the said classes it desires to be placed. {Sidenote: Swiss Administration to prepare the budget of the International Office, etc.} The Swiss Administration prepares the budget of the Office, superintends its expenditure, makes the necessary advances, and draws up the annual account, which shall be communicated to all the other Administrations. ARTICLE 24 {Sidenote: Revision of Convention} The present Convention may be subjected to revision in order to introduce therein amendments calculated to perfect the system of the Union. {Sidenote: Future conferences} {Sidenote: Country where a conference is to be held to prepare programme} {Sidenote: Director of the International Office to participate} Questions of this kind, as well as those which are of interest to the Union in other respects, are considered in Conferences to be held successively in the countries of the Union by delegates of the said countries. The Administration of the country where a Conference is about to be held, prepares the programme of the same with the assistance of the International Office. The Director of the International Office attends the sittings of the Conferences, and takes part in the discussion without a deliberative voice. {Sidenote: Alterations of Convention must be by unanimous consent} No alteration in the present Convention is binding on the Union except by the unanimous consent of the countries comprising it. ARTICLE 25 {Sidenote: Accession of other countries} The States outside of the Union which assure legal protection of the rights which are the object of the present Convention, may accede to it upon their request. Such accession shall be notified in writing to the Government of the Swiss Confederation, who will communicate it to all the other countries of the Union. {Sidenote: May substitute provisions of previous conventions} Such accession shall imply full adhesion to all the clauses and admission to all the advantages provided by the present Convention. It may, however, indicate such provisions of the Convention of September 9, 1886, or of the Additional Act of May 4, 1896, as it may be judged necessary to substitute provisionally, at least, for the corresponding provisions of the present Convention. ARTICLE 26 {Sidenote: Accession for colonies or foreign possessions} The contracting countries have the right to accede at any time to the present Convention for their colonies or foreign possessions. They may do this either by a general declaration comprehending all their colonies or possessions within the accession, or by specially naming those comprised therein, or by simply indicating those which are excluded. This declaration shall be made known in writing to the Government of the Swiss Confederation, and by the latter to all the others. ARTICLE 27 {Sidenote: Present Convention to replace Berne Convention and Paris Acts} {Sidenote: But Berne Convention remains in force between countries not signatory to present Convention} The present Convention shall replace, in the relations between the contracting States, the Convention of Berne of September 9, 1886, including the Additional Article and the Final Protocol of the same day, as well as the Additional Act, and the Interpretative Declaration of May 4, 1896. The conventional acts above-mentioned shall remain in force in the relations with the States which do not ratify the present Convention. {Sidenote: Signatory States may declare themselves bound by former Conventions upon certain points} The States signatory to the present Convention may, at the time of the exchange of ratifications, declare that they intend, upon such or such point, still to remain bound by the provisions of the Conventions to which they have previously subscribed. ARTICLE 28 {Sidenote: Convention to be ratified} The present Convention shall be ratified, and the ratifications exchanged at Berlin, not later than the first of July, 1910. {Sidenote: Exchange of ratifications} Each contracting party shall send, for the exchange of ratifications, a single instrument, which shall be deposited, with those of the other countries, in the archives of the Government of the Swiss Confederation. Each party shall receive in return a copy of the _procès-verbal_ of the exchange of ratifications, signed by the Plenipotentiaries who shall have taken part therein. ARTICLE 29 {Sidenote: Convention to take effect three months after exchange of ratifications} The present Convention shall be put in force three months after the exchange of the ratifications, and shall remain in effect for an indefinite period until the termination of a year from the day on which it may have been denounced. {Sidenote: Denunciation of Convention} This denunciation shall be addressed to the Government of the Swiss Confederation. It shall only take effect in respect of the country which shall have made it, the Convention remaining operative for the other countries of the Union. ARTICLE 30 {Sidenote: Adoption of term of life and 50 years to be notified} The States which introduce into their legislation the term of protection of fifty years,[4] provided for by Article 7, paragraph 1, of the present Convention, shall make it known to the Government of the Swiss Confederation by a written notification which shall be communicated at once by that Government to all the other countries of the Union. {Sidenote: Notice shall be given of renouncement of any reservations} It shall be the same for such States as shall renounce any reservations made by them in virtue of Articles 25, 26, and 27. {Sidenote: Signature} In testimony of which, the respective Plenipotentiaries have signed the present Convention and have attached thereto their seals. {Sidenote: Date of signing, November 13, 1908} Done at Berlin, the thirteenth of November, one thousand nine hundred eight, in a single copy, which shall be deposited in the archives of the Government of the Swiss Confederation, and of which copies, properly certified, shall be sent through diplomatic channels to the contracting countries. Footnote 4: Article 7 provides for a general term of protection for life and fifty years. IV PAN AMERICAN UNION: CONVENTIONS II. MONTEVIDEO CONVENTION, 1889 TREATY ON LITERARY AND ARTISTIC COPYRIGHT ADOPTED JANUARY 11, 1889 ARTICLE 1 {Sidenote: Union to protect literary and artistic property} The contracting States promise to recognize and protect the rights of literary and artistic property, according to the provisions of the present treaty. ARTICLE 2 {Sidenote: Authors shall enjoy rights secured in country of origin} The author of any literary or artistic work, and his successors, shall enjoy in the contracting States the rights accorded him by the law of the State in which its original publication or production took place. ARTICLE 3 {Sidenote: Definition of copyright} The author's right of ownership in a literary or artistic work shall comprise the right to dispose of it, to publish it, to convey it to another, to translate it or to authorize its translation, and to reproduce it in any form whatsoever. ARTICLE 4 {Sidenote: Term not to exceed that of country of origin} No State shall be obliged to recognize the right to literary or artistic property for a longer period than that allowed to authors who obtain the same right in that State. This period may be limited to that prescribed in the country where it originates, if such period be the shorter. ARTICLE 5 {Sidenote: Definition of "literary and artistic work"} By the expression literary or artistic works is understood all books, pamphlets, or other writings, dramatic or dramatico-musical works, chorographies, musical compositions with or without words, drawings, paintings, sculptures, engravings, photographs, lithographs, geographical maps, plans, sketches, and plastic works relating to geography, topography, architecture, or to the sciences in general; and finally every production in the field of literature or art which may be published in any way by printing or reproduction. ARTICLE 6 {Sidenote: Translation rights} The translators of works of which a copyright either does not exist or has expired, shall enjoy with respect to their translations the rights declared in Article 3, but they shall not prevent the publication of other translations of the same work. ARTICLE 7 {Sidenote: Newspaper articles} Newspaper articles may be reproduced upon quoting the publication from which they are taken. From this provision articles relating to the sciences or arts, and the reproduction of which shall have been prohibited by the authors are excepted. ARTICLE 8 {Sidenote: Addresses} Speeches pronounced or read in deliberative assemblies, before tribunals of justice, or in public meetings, may be published in the public press without any authorization whatsoever. ARTICLE 9 {Sidenote: Infringements defined} Under the head of illicit reproductions shall be classed all indirect, unauthorized appropriations of a literary or artistic work, which may be designated by different names as adaptations, arrangements, etc., etc., and which are no more than a reproduction without presenting the character of an original work. ARTICLE 10 {Sidenote: Authority recognized} The rights of authorship shall be allowed, in the absence of proof to the contrary, in favor of the persons whose names or pseudonyms shall be borne upon the literary or artistic works in question. If the authors wish to withhold their names, they should inform the editors that the rights of authorship belong to them. ARTICLE 11 {Sidenote: Each government to exercise supervision} Those who usurp the right of literary or artistic property shall be brought before the courts and tried according to the laws of the country in which the fraud may have been committed. ARTICLE 12 {Sidenote: Immoral works} The recognition of the right of ownership of literary and artistic works shall not prevent the contracting States from preventing by suitable legislation the reproduction, publication, circulation, representation, or exhibition of all works which may be considered contrary to good morals. ARTICLE 13 {Sidenote: Ratification} The simultaneous ratification of all the contracting nations shall not be necessary to the effectiveness of this treaty. Those who adopt it will communicate the fact to the Governments of the Argentine Republic and the Eastern Republic of Uruguay, who will inform the other contracting nations. This formality will take the place of an exchange. ARTICLE 14 {Sidenote: Indefinite period} The exchange having been made in the manner prescribed in the foregoing article, this treaty shall remain in force for an indefinite period after that act. ARTICLE 15 {Sidenote: Withdrawals} If any of the contracting nations should deem it advisable to be released from this treaty, or introduce modifications in it, said nation shall so inform the rest; but it shall not be released until two years after the date of notification, during which time measures will be taken to effect a new arrangement. ARTICLE 16 {Sidenote: Adherences} The provisions of Article 13 are extended to all nations who, although not represented in this Congress, may desire to adopt the present treaty. {Sidenote: Signatories} The seven countries represented and whose delegates signed the Montevideo treaty were: Argentina, Bolivia, Brazil, Chile, Paraguay, Peru, Uruguay. But the convention was ratified only by Argentina, Paraguay, Uruguay, Peru and Bolivia, and Brazil and Chile did not become participants. Participation of Belgium, France, Italy and Spain in this convention was accepted by Argentina and Paraguay, but apparently not by the other countries. 12. MEXICO CITY CONVENTION, 1902 CONVENTION TO PROTECT LITERARY AND ARTISTIC PROPERTY, SIGNED AT MEXICO, JANUARY 27, 1902 ARTICLE 1 {Sidenote: Union to protect literary and artistic property} The signatory States constitute themselves into a Union for the purpose of recognizing and protecting the rights of literary and artistic property, in conformity with the stipulations of the present Convention. ARTICLE 2 {Sidenote: Definition of "literary and artistic works"} Under the term "literary and artistic works" are comprised books, manuscripts, pamphlets of all kinds, no matter what subject they may treat of and what may be the number of their pages; dramatic or melodramatic works; choral music and musical compositions, with or without words; designs, drawings, paintings, sculpture, engravings, photographic works; astronomical and geographical globes; plans, sketches, and plastic works, relating to geography or geology, topography or architecture, or any other science; and, finally, every production in the literary and artistic field which may be published by any method of impression or reproduction. ARTICLE 3 {Sidenote: Definition of copyright} The copyright to literary or artistic work consists in the exclusive right to dispose of the same, to publish, sell, and translate the same, or to authorize its translation, and to reproduce the same in any manner either entirely or partially. {Sidenote: Exclusive right of translation} The authors belonging to one of the signatory countries, or their assigns, shall enjoy in the other signatory countries and for the time stipulated in Article 5 the exclusive right to translate their works or to authorize their translation. ARTICLE 4 {Sidenote: Application for copyright and deposit of two copies} In order to obtain the recognition of the copyright of a work, it is indispensable that the author or his assigns or legitimate representative, shall address a petition to the official department which each Government may designate, claiming the recognition of such right, which petition must be accompanied by two copies of his work, said copies to remain in the proper department. {Sidenote: One additional copy to be deposited for each country} {Sidenote: Copies and certificates of registration to be transmitted} If the author or his assigns should desire that this copyright be recognized in any other of the signatory countries, he shall attach to his petition a number of copies of his work equal to that of the countries he may therein designate. The said department shall distribute the copies mentioned among those countries, accompanied by a copy of the respective certificate, in order that the copyright of the author may be recognized by them. Any omissions which the said department may incur in this respect shall not give the author or his assigns any rights to present claims against the State. ARTICLE 5 {Sidenote: Authors shall enjoy rights secured in country of origin for like term} The authors who belong to one of the signatory countries, or their assigns, shall enjoy in the other countries the rights which their respective laws at present grant, or in the future may grant, to their own citizens, but such right shall not exceed the term of protection granted in the country of its origin. {Sidenote: Works in parts or in several volumes} For the works composed of several volumes which are not published at the same time, as well as for bulletins or installments of publications of literary or scientific societies or of private parties, the term of property shall commence to be counted from the date of the publication of each volume, bulletin, or installment. ARTICLE 6 {Sidenote: Country of first publication country of origin} The country in which a work is first published shall be considered as the country of its origin, or, if such publication takes place simultaneously in several of the signatory countries, the one whose laws establish the shortest period of protection shall be considered as the country of its origin. ARTICLE 7 {Sidenote: Translations protected} Lawful translations shall be protected in the same manner as original works. The translators of works in regard to which there exists no guaranteed right of property, or the right of which may have become extinguished, may secure the right of property for their translations, as established in Article 3, but they shall not prevent the publication of other translations of the same work. ARTICLE 8 {Sidenote: Newspaper articles} Newspaper articles may be reproduced, but the publication from which they are taken must be mentioned, and the name of the author given, if it should appear in the same. ARTICLE 9 {Sidenote: Works bearing names of authors or pseudonyms protected} Copyright shall be recognized in favor of the persons whose names or acknowledged pseudonyms are stated in the respective literary or artistic work or in the petition to which Article 4 of this Convention refers, excepting case of proof to the contrary. ARTICLE 10 {Sidenote: Addresses} Addresses delivered or read in deliberative assemblies, before the courts of justice, and in public meetings may be published in the newspaper press without any special authorization. ARTICLE 11 {Sidenote: Fragments of literary or artistic works} The reproduction in publications devoted to public instruction or chrestomathy of fragments of literary or artistic works confers no right of property, and may therefore be freely made in all the signatory countries. ARTICLE 12 {Sidenote: Infringement defined} All unauthorized indirect use of a literary or artistic work which does not present the character of an original work shall be considered as an unlawful reproduction. It shall be considered in the same manner unlawful to reproduce in any form an entire work, or the greater part of the same, accompanied by notes or commentaries, under the pretext of literary criticism or of enlargement or completement of an original work. ARTICLE 13 {Sidenote: Fraudulent copies to be sequestrated, etc.} All fraudulent works shall be liable to sequestration in the signatory countries in which the original work may have the right of legal protection, without prejudice to the indemnity or punishments to which the falsifiers may be liable according to the laws of the country in which the fraud has been committed. ARTICLE 14 {Sidenote: Each Government to exercise supervision} Each one of the Governments of the signatory countries shall remain at liberty to permit, exercise vigilance over, or prohibit the circulation, representation and exposition of any work or production in respect to which the competent authorities shall have power to exercise such right. ARTICLE 15 {Sidenote: Convention to take effect three months after ratification} The present Convention shall take effect between the signatory States that ratify it, three months from the day they communicate their ratification to the Mexican Government, and shall remain in force among all of them until one year from the date it is denounced by any of said States. The notification of such denouncement shall be addressed to the Mexican Government and shall only have effect in so far as regards the country which has given it. ARTICLE 16 {Sidenote: Adherence of nations not represented at 2d Int. Am. Conference} The Governments of the signatory states, when approving the present Convention, shall declare whether they accept the adherence to the same by the nations which have had no representation in the Second International American Conference. In testimony whereof the Plenipotentiaries and Delegates sign the present Convention and set thereto the seal of the Second International American Conference. {Sidenote: Signed at City of Mexico, Jan. 27, 1902} Made in the City of Mexico, on the twenty-seventh day of January, nineteen hundred and two, in three copies written in Spanish, English, and French, respectively, which shall be deposited at the Department of Foreign Relations of the Government of the Mexican United States, so that certified copies thereof may be made, in order to send them through the diplomatic channel to the signatory States. 13. RIO DE JANEIRO CONVENTION, 1906 CONVENTION, SIGNED AT RIO DE JANEIRO, AUGUST 23, 1906, TO PROTECT PATENTS OF INVENTION, DRAWINGS AND INDUSTRIAL MODELS, TRADE-MARKS, AND LITERARY AND ARTISTIC PROPERTY ARTICLE 1 {Sidenote: Patents, trade-marks, copyrights} The subscribing nations adopt in regard to patents of invention, drawings and industrial models, trade-marks, and literary and artistic property the treaties subscribed at the Second International Conference of American States, held in Mexico on the 27th of January, 1902, with such modifications as are expressed in the present Convention. ARTICLE 2 {Sidenote: Union; Bureaus at Havana and Rio de Janeiro} A union is constituted of the nations of America, which will be rendered effective by means of two Bureaus, which will be maintained, one in the city of Havana and the other in that of Rio de Janeiro, each working closely with the other, to be styled Bureaus of the International American Union for the Protection of Intellectual and Industrial Property, and will have for their object the centralization of the registration of literary and artistic works, patents, trade-marks, drawings, models, etc., which will be registered, in each one of the signatory nations, according to the respective treaties and with a view to their validity and recognition by the others. {Sidenote: Registration optional} This international registration is entirely optional with persons interested, since they are free to apply, personally or through an attorney-in-fact, for registration in each one of the States in which they seek protection. ARTICLE 3 {Sidenote: Bureau at Havana} The Bureau established in the city of Havana will have charge of the registrations from the United States of America, the United States of Mexico, Venezuela, Cuba, Haiti, San Domingo, San Salvador, Honduras, Nicaragua, Costa Rica, Guatemala, Panama, and Colombia. {Sidenote: Bureau at Rio de Janeiro} The Bureau established in the city of Rio de Janeiro will attend to the registrations coming from the republics of the United States of Brazil, Uruguay, Argentine Republic, Paraguay, Bolivia, Chile, Peru, and Ecuador. ARTICLE 4 {Sidenote: Bureaus to be considered as one} For the purpose of the legal unification of the registration, the two International Bureaus, which are divided merely with a view to greater facility of communication, are considered as one, and to this end it is established that (a) both shall have the same books and the same accounts kept under an identical system; (b) copies shall be transmitted monthly from one to the other, authenticated by the Governments in whose territories they have their seat, of all the registrations, communications, and other documents affecting the recognition of the rights of proprietors or authors. ARTICLE 5 {Sidenote: Copies of registrations to be transmitted} Each one of the Governments adhering to the Union will send at the end of each month to the proper Bureau, according to Art. 3, authenticated copies of all registrations of trade-marks, patents, drawings, models, etc., and copies of the literary and artistic works registered in them, as well as of all lapses, renunciations, transfers, and other alterations occurring in proprietary rights, according to the respective treaties and laws, in order that they may be sent out or distributed and notice given of them as the case may be by the International Bureau to those nations in direct correspondence therewith. ARTICLE 6 {Sidenote: Bureaus to transmit certificates} The registration or deposit of drawings, models, etc., made in the country of origin according to the national law of the same and transmitted by the respective administration to the International Bureau, shall be by such Bureau laid before the other countries of the Union, by which it shall be given full faith and credit, except in the case provided for in Art. 9 of the Treaty on Patents, Trade-Marks, etc., of Mexico, and in case the requirements essential to the recognition of international property are lacking where literary or artistic works are involved according to the treaty thereon subscribed in Mexico. {Sidenote: Protection to be allowed or refused within one year} In order that the States forming the Union may accept or refuse the recognition of the rights granted in the country of origin, and for the further legal purposes of such recognition, such States shall be allowed a term of one year from the date of notification by the proper office for the purpose of so doing. {Sidenote: Notification in case protection is not allowed} In case patents, trade-marks, drawings, models, etc., or the right to literary or artistic works shall fail to obtain recognition on the part of any one of the offices of the States forming the Union, the International Bureau shall be made acquainted with the facts and reasons of the case in order that in its turn these facts may be transmitted by it to the office of origin and to the interested party, for proper action according to local law. ARTICLE 7 {Sidenote: Registration in country of origin to have same effect as registration in each country} {Sidenote: Term of protection, that of country of origin} Every registration or recognition of intellectual and industrial rights made in one of the countries of the Union and communicated to the others according to the form prescribed in the preceding articles shall have the same effect that would be produced if said registration or recognition had taken place in all of them, and every nullification or lapse of rights occurring in the country of origin and communicated in the same form to the others shall produce in them the same effect that it would produce in the former. {Sidenote: If no term by law, then as specified} {Sidenote: Copyright, 25 years after death of author} The period of international protection derived from the registration shall be that recognized by the laws of the country where the rights originated or have been recognized; and if said laws do not provide for such matters or do not specify a fixed period, the respective periods shall be: for patents, 15 years; for trade-marks or commercial designs, models, and industrial drawings, 10 years; for literary and artistic works, 25 years, counting from the death of the author thereof. The first two periods may be renewed at will by giving the same form as in the case of the first registration. ARTICLE 8 {Sidenote: Regulations to govern Bureaus} {Sidenote: Expenses of Bureaus} The International Bureaus for the protection of intellectual and industrial property shall be governed by identical regulations, formed with the concurrence of the Governments of the Republics of Cuba and Brazil and approved by all the others belonging to the Union. Their budgets, after being sanctioned by the said Governments, shall be defrayed by all of the subscribing Governments in the same proportion established for the International Bureau of American Republics at Washington, and in this particular they shall be placed under the control of those Governments within whose territories they are established. {Sidenote: Registration fee, $5 American gold} To the tax on rights which the country of their origin collects for registration or deposit and other acts resulting from the recognition or guaranty of intellectual and industrial property, shall be added a fee of five dollars, American gold, which fee or the equivalent thereof in the currency of the country in which the payment is made shall be distributed in equal parts among the Governments in whose territory the International Bureaus shall be established, the sole object of this being to contribute to the maintenance of the said Bureaus. ARTICLE 9 {Sidenote: Functions of Bureaus:} In addition to the functions prescribed in the preceding articles, the International Bureaus shall have the following: {Sidenote: 1. To collect and publish information} 1st. To collect information of all kinds regarding the protection of intellectual and industrial property and to publish and circulate the same among the countries of America at proper intervals; {Sidenote: 2. May publish official reviews} 2nd. To encourage the study of questions regarding the said subjects, to which end they may publish one or more official reviews containing all documents forwarded to them by the offices of the subscribing countries; {Sidenote: 3. To give notice of difficulties} 3rd. To lay before the Governments of the Union any difficulties or obstacles that may arise in the efficacious application of the present Convention, and indicate means to correct or remove such difficulties or obstacles; {Sidenote: 4. To originate and prepare for international conferences} 4th. To help the Governments of the Union in the preparation of international conferences for the study and progress of legislation and intellectual and industrial properties, for alterations which it may be proper to introduce in the regulations of the Union or in the treaties in force on the said subject, and in case such conferences take place the directors of the Bureaus, not appointed to represent any countries, shall have a right to attend the meetings and express their opinions at them, but not to vote; {Sidenote: 5. To make yearly report} 5th. To present to the Governments of the countries where they shall have their seats a yearly report of their labors, which shall be communicated to all of the States of the Union; {Sidenote: 6. To arrange for the exchange of publications, etc.} 6th. To establish relations for the exchange of publications, informations and data conducive to the progress of the institution with similar bureaus, and institutions, and with scientific, literary, artistic, and industrial corporations of Europe and America; {Sidenote: 7. To act as agent for each of the Governments concerned} 7th. To coöperate as agent for each one of the Governments of the Union for the transaction of any business, the taking of any initiative, or the execution of any act conducive to further the ends of the present Convention with the offices of the other Governments. ARTICLE 10 {Sidenote: Registration required to replace provisions of treaties of 1902} The provisions contained in the Treaties of Mexico of January 27th, 1902, on patents of invention, drawings and industrial models, and commercial trade-marks, and on literary and artistic property, so far as regards the formalities of the registration or recognition of said rights in other countries than that of origin, shall be considered as replaced by the provisions of the present Convention as soon as one of the International Bureaus shall have been established, and only with regard to those States which have concurred in its constitution; in all other cases the said treaties shall remain in force and the present Convention shall be considered additional thereto. ARTICLE 11 {Sidenote: Cuba and Brazil to organize Copyright Bureaus} The Governments of the Republics of Cuba and the United States of Brazil shall proceed with the organization of the International Bureaus upon the ratification of this Convention by at least two-thirds of the nations belonging to each group mentioned in Article 3. The simultaneous establishment of both Bureaus shall not be necessary; one only may be established if there be the number of adherent Governments provided above, the Government in which the Bureau has its seat being charged with taking the proper steps to secure this result, availing itself of the powers contained in the eighth article. {Sidenote: Bureau first established to be used until second is organized} In the event that one of the two offices referred to in this Convention shall have been established, the countries belonging to a group other than that to which the Bureau corresponds shall have the right to join it until the second Bureau shall be established. Upon the establishment of the second Bureau the first Bureau shall transmit to the same all the data referred to in Article 12. ARTICLE 12 {Sidenote: Adhesions to treaty to be communicated to Brazil} As regards the adhesion of the American nations to the present Convention, it will be communicated to the Government of the United States of Brazil, which will lay it before the others, these communications taking the place of an exchange of notes. {Sidenote: Brazil to notify Bureau of each adhesion} The Government of Brazil will also notify the International Bureau of this adhesion, and this Bureau will forward to the newly adhering State a complete statement of all the marks, patents, models, drawings, and literary and artistic works registered which at the time shall be under international protection. In testimony whereof the Plenipotentiaries and Delegates have signed the present Convention and affixed the seal of the Third International American Conference. {Sidenote: Signed at Rio de Janeiro, Aug. 23, 1906} Made in the City of Rio de Janeiro the twenty-third day of August, nineteen hundred and six, in English, Portuguese, and Spanish, and deposited with the Secretary of Foreign Affairs of the United States of Brazil, in order that certified copies thereof be made and sent through diplomatic channels to the signatory States. 14. BUENOS AIRES CONVENTION, 1910 CONVENTION ON LITERARY AND ARTISTIC COPYRIGHT SIGNED AT BUENOS AIRES, AUGUST 11, 1910 ARTICLE 1 {Sidenote: Union to protect literary and artistic property} The signatory States acknowledge and protect the rights of literary and artistic property in conformity with the stipulations of the present convention. ARTICLE 2 {Sidenote: Definition of "literary and artistic works"} In the expression "Literary and artistic works" are included books, writings, pamphlets of all kinds, whatever may be the subject of which they treat and whatever the number of their pages; dramatic or dramatico-musical works; choreographic and musical compositions, with or without words; drawings, paintings, sculpture, engravings; photographic works; astronomical or geographical globes; plans, sketches or plastic works relating to geography, geology or topography, architecture or any other science; and, finally, all productions that can be published by any means of impression or reproduction. ARTICLE 3 {Sidenote: Formalities} The acknowledgment of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full right in all the other States without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right. ARTICLE 4 {Sidenote: Definition of copyright} The copyright of a literary or artistic work includes for its author or assigns the exclusive power of disposing of the same, of publishing, assigning, translating, or authorizing its translation and reproducing it in any form whether wholly or in part. ARTICLE 5 {Sidenote: Authorship recognized} The author of a protected work, except in case of proof to the contrary, shall be considered the person whose name or well-known nom de plume is indicated therein; consequently suit brought by such author or his representative against counterfeiters or violators shall be admitted by the courts of the signatory States. ARTICLE 6 {Sidenote: Authors to enjoy rights secured in country of origin for like term} The authors or their assigns, citizens or domiciled foreigners, shall enjoy in the signatory countries the rights that the respective laws accord, without those rights being allowed to exceed the term of protection granted in the country of origin. {Sidenote: Works in parts or in several volumes} For works comprising several volumes that are not published simultaneously, as well as for bulletins, or parts, or periodical publications, the term of the copyright will commence to run, with respect to each volume, bulletin, part, or periodical publication, from the respective date of its publication. ARTICLE 7 {Sidenote: Country of first publication country of origin} The country of origin of a work will be deemed that of its first publication in America, and if it shall have appeared simultaneously in several of the signatory countries, that which fixes the shortest period of protection. ARTICLE 8 {Sidenote: Subsequent editions non-copyright} A work which was not originally copyrighted shall not be entitled to copyright in subsequent editions. ARTICLE 9 {Sidenote: Translation protected} Authorized translations shall be protected in the same manner as original works. Translators of works concerning which no right of guaranteed property exists, or the guaranteed copyright of which may have been extinguished, may obtain for their translations the rights of property set forth in Article 3d but they shall not prevent the publication of other translations of the same work. ARTICLE 10 {Sidenote: Addresses} Addresses or discourses delivered or read before deliberative assemblies, courts of justice, or at public meetings may be printed in the daily press without the necessity of any authorization, with due regard, however, to the provisions of the domestic legislation of each nation. ARTICLE 11 {Sidenote: Newspaper articles} Literary, scientific, or artistic writings, whatever may be their subjects, published in newspapers or magazines in any one of the countries of the Union, shall not be reproduced in the other countries without the consent of the authors. With the exception of the works mentioned, any article in a newspaper may be reprinted by others if it has not been expressly prohibited, but in every case the source from which it is taken must be cited. {Sidenote: Newspaper news} News and miscellaneous items published merely for general information do not enjoy protection under this convention. ARTICLE 12 {Sidenote: Fragments of literary or artistic works} The reproduction of extracts from literary or artistic publications for the purpose of instruction or chrestomathy does not confer any right of property, and may, therefore, be freely made in all the signatory countries. ARTICLE 13 {Sidenote: Infringements defined} The indirect appropriation of unauthorized parts of a literary or artistic work having no original character shall be deemed an illicit reproduction, in so far as affects civil liability. The reproduction in any form of an entire work, or of the greater part thereof, accompanied by notes or commentaries under the pretext of literary criticism or amplification, or supplement to the original work, shall also be considered illicit. ARTICLE 14 {Sidenote: Fraudulent copies to be sequestrated, etc.} Every publication infringing a copyright may be confiscated in the signatory countries in which the original work had the right to be legally protected, without prejudice to the indemnities or penalties which the counterfeiters may have incurred according to the laws of the country in which the fraud may have been committed. ARTICLE 15 {Sidenote: Each government to exercise supervision} Each of the Governments of the signatory countries shall retain the right to permit, inspect, or prohibit the circulation, representation, or exhibition of works or productions, concerning which the proper authority may have to exercise that right. ARTICLE 16 {Sidenote: Convention to take effect three months after ratification} The present convention shall become operative between the signatory States which ratify it three months after they shall have communicated their ratification to the Argentine Government, and it shall remain in force among them until a year after the date, when it may be denounced. This denunciation shall be addressed to the Argentine Government and shall be without force except with respect to the country making it. {Sidenote: Signed at Buenos Aires Aug. 11, 1910} Made and signed in the city of Buenos Aires on the eleventh day of August in the year one thousand nine hundred and ten, in Spanish, English, Portuguese, and French, and deposited in the ministry of foreign affairs of the Argentine Republic, in order that certified copies be made for transmission to each one of the signatory nations through the appropriate diplomatic channels. The convention was thus signed by representatives of twenty powers: the United States of America, Argentine Republic, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay and Venezuela. CHRONOLOGICAL TABLE OF LAWS AND CASES, ENGLISH AND AMERICAN This table gives in chronological order the statutes, with reference to their place in the statute books, and historical, leading and recent cases with the name of the court, of the judge presiding or giving the opinion, and the reference to the law reports, also an epitome of the point cited in the text, with page reference. It is not intended to cover minor cases, not settling any principle, and where a decision has been reversed on appeal, the case in the lower court may not be given unless some definite point was there settled. The usual law report abbreviations are employed; outside of these, Copinger refers to Copinger's "Law of Copyright," Copr. Cas. to the annual summary of copyright cases edited by McGillivray and published by the English Publishers Association, Hamlin Copr. C. & D. to Hamlin's "Copyright Cases and Decisions, 1891-1903," published for the American Publishers' Copyright League, _Times_ to the London _Times_ legal column, and _Pub. Week._ to the _Publishers' Weekly_, of New York. English and American cases can be distinguished by the name of the court, judge or report. Cases are entered alphabetically in the general index with references to the year and to the page of text. ----+----------------------+--------------+--------------+------------------ 1710|Act for the encouragement of learning |8 Anne, c. 19 ----+----------------------+--------------+--------------+------------------ 1735|Engraving copyright act |8 Geo. II, c. 13 ----+----------------------+--------------+--------------+------------------ 1735|Eyre _v._ Walker |Chancery |Jekyll, M. R.,|4 Bur. 2325 | "The whole duty of man" protected at common | | law after statutory term, 24 | ----+----------------------+--------------+--------------+------------------ 1739|Prohibition of foreign reprints act |12 Geo. II, c. 36 ----+----------------------+--------------+--------------+------------------ 1740|Gyles _v._ Wilcox |Chancery |L. Hardwicke, |2 Atk. 141 | Condemning reprint "colorably shortened only," | | but not "a real and fair abridgment," 80 | ----+----------------------+--------------+----------------+---------------- 1741|Pope _v._ Curl |Chancery | L. C. |2 Atk. 342 | Republication of letters | Hardwicke, | | enjoined, 92 | | ----+----------------------+--------------+--------------+------------------ 1766|Engraving copyright act |7 Geo. III, c. 38 ----+----------------------+--------------+--------------+------------------ 1769|Millar _v._ Taylor |King's Bench |L. Mansfield |4 Bur. 2303 | Thomson's "Seasons" protected at common law | | in perpetuity, 25 | ----+----------------------+--------------+--------------+------------------ 1774|"Newbery's case" |King's Bench |L. C. Apsley, |Lofft, 775 | Abridgment involving understanding and skill | | "an allowable and meritorious work," 80 | ----+----------------------+--------------+--------------+------------------ 1774|Donaldson _v._ Becket |House of Lords| |2 Bro. P. C. 129 | Thomson's "Seasons"--common law rights | | abrogated by Statute of Anne, 7, 25, 26, 41 | ----+----------------------+--------------+--------------+------------------ 1774|Thompson _v._ Stanhope|Chancery |Ld. Apsley, |Amb. 737 | Publication prevented of letters, though | | a gift from author, 92 | ----+----------------------+--------------+--------------+------------------ 1775|[University] copyright act |15 Geo. III, c. 53 ----+----------------------+--------------+--------------+------------------ 1777|Prints copyright act |17 Geo. III, c. 57 ----+----------------------+--------------+--------------+------------------ 1783|U. S. Constitution |Art. I, § 8 ----+----------------------+--------------+--------------+------------------ 1783-90 State copyright laws ----+----------------------+--------------+--------------+------------------ 1787|Copyright in designs act |27 Geo. III, c. 38 ----+----------------------+--------------+--------------+------------------ 1789|Copyright in designs act |29 Geo. III, c. 19 ----+----------------------+--------------+--------------+------------------ 1790|U. S. general copyright act ----+----------------------+--------------+--------------+------------------ 1794|Copyright in designs act |34 Geo. III, c. 23 ----+----------------------+--------------+--------------+------------------ 1798|Sculpture copyright act |38 Geo. III, c. 71 ----+----------------------+--------------+--------------+------------------ 1798|Beckford _v._ Hood |King's Bench |L. Kenyon, |7 T. R. 620 | Common law remedies also applied in | | statutory period, 27 | ----+----------------------+--------------+--------------+------------------ 1801|Act for the further encouragement of learning |41 Geo. III, c. 107 ----+----------------------+--------------+--------------+------------------ 1801|Cary _v._ Longman |King's Bench |L. Kenyon, |1 East, 358 | New added material to non-copyright book, | | protectable as such, 76 | ----+----------------------+--------------+--------------+------------------ 1802|U. S. Supplementary act (engravings, etc.) ----+----------------------+--------------+--------------+------------------ 1812|Morris _v._ Colman |Chancery |L. C. Eldon, |18 Vesey, 437 | Author under exclusive contract enjoined | | from furnishing plays elsewhere, 441 | ----+----------------------+--------------+--------------+------------------ 1814|Sculpture copyright act |54 Geo. III, c. 56 ----+----------------------+--------------+--------------+------------------ 1814|Amendatory copyright act, for printed books |54 Geo. III, c. 156 ----+----------------------+--------------+--------------+------------------ 1817|Gale _v._ Leckie |King's Bench | L. |2 Starkie, 107 | Author liable for failure to | Ellenborough,| | complete work, 441 | | ----+----------------------+--------------+--------------+------------------ 1817|Southey _v._ Sherwood |Chancery |L. Eldon, |2 Meriv. 435 | No copyright in immoral book. No right to hold | | what there was no right to sell, 86 | ----+----------------------+--------------+--------------+------------------ 1819|U. S. act extending jurisdiction of Circuit Courts ----+----------------------+--------------+--------------+------------------ 1819|Clarke _v._ Price |Chancery |L. C. Eldon, |2 Wils. C. R. 157 | Author cannot be compelled to write, 441 | ----+----------------------+--------------+--------------+------------------ 1824|Barfield _v._ |Chancery |V. C. Leach, |2 L. J. Ch. 90 | Nicholson | | | | Author may not prejudice sale through another | | book of like subject, 441 | ----+----------------------+--------------+--------------+------------------ 1825|Abernethy _v._ |Chancery |L. C. Eldon, |3 L. J. (O. S.) | Hutchinson | | | Ch. 209 | Unwritten lecture--oral delivery not | | publication, 90 | ----+----------------------+--------------+--------------+------------------ 1826|Mawman _v._ Tegg |Chancery |L. C. Eldon, |2 Russ. 385 | "Fair use" defined. Inseparable use of | | copyright material renders whole work | | an infringement, 256 | ----+----------------------+--------------+--------------+------------------ 1828|Clayton _v._ Stone |U. S. C. C. |J. Thompson, |2 Paine, 382 | Copyrightable property not determined by size, | | form or shape, but by subject-matter, 69 | ----+----------------------+--------------+--------------+------------------ 1831|U. S. general copyright act ----+----------------------+--------------+--------------+------------------ 1831|Brooke _v._ Chitty |Chancery |L. Brougham, |2 Cooper | Court cannot restrain book until there is |(Cottenham), 216 | actual printing and publication, 442 | ----+----------------------+--------------+--------------+------------------ 1832|Archbold _v._ Sweet |King's Bench |C. J. Tenterden,|5 Carr. & P. 219 | Alterations by publisher not permitted to | | author's injury, 443 | ----+----------------------+--------------+--------------+------------------ 1833|Dramatic copyright act |3 & 4 Will. IV, | |c. 15 ----+----------------------+--------------+--------------+------------------ 1834|U. S. supplementary act (assignment) ----+----------------------+--------------+--------------+------------------ 1834|Wheaton _v._ Peters |U. S. Sup. Ct.|J. McLean, |8 Pet. 591 | U. S. Act of 1790 abrogates common law rights | | after publication, 40, 41; "There is no | | common law of the U. S.," 44; exact | | conformity with statute requisite, 149 | ----+----------------------+--------------+--------------+------------------ 1835|Lectures copyright act |5 & 6 Will. IV, | |c. 65 ----+----------------------+--------------+--------------+------------------ 1836|Prints and engravings copyright act (Ireland) |6 & 7 Will. IV, | |c. 59 ----+----------------------+--------------+--------------+------------------ 1836|Copyright act, library deposit copies |6 & 7 Will. IV, | |c. 110 ----+----------------------+--------------+--------------+------------------ 1838|International copyright act |1 & 2 Vict. c. 59 ----+----------------------+--------------+--------------+------------------ 1839|Copyright in designs (fabrics) act |2 Vict. c. 13 ----+----------------------+--------------+--------------+------------------ 1839|Amendatory copyright act, for designs |2 Vict. c. 17 ----+----------------------+--------------+--------------+------------------ 1840|Bell _v._ Locke | [N. Y.] | Chan. |8 Paige, 74 | | Chancery | Walworth, | | Deceiving public by use of like title is an | | infringement, 83 | ----+----------------------+--------------+--------------+------------------ 1840|Dwight _v._ Appleton |U. S. C. C. |J. Thompson, |1 N. Y. Leg. | Copyright notice in succeeding volumes held |Obs. 195 | unnecessary, 133 | ----+----------------------+--------------+--------------+------------------ 1841|Folsom _v._ Marsh |U. S. Sup. Ct.|J. Story, |2 Story, 100 | Author of letters has sole right to copyright, | | 92; piracy if another's labor is | | substantially appropriated to injurious | | extent, 252 | ----+----------------------+--------------+--------------+------------------ 1841|Gibson _v._ Carruthers|Exchequer | |8 M. & W. 321 | Author cannot on bankruptcy of publisher | | be required to complete work, 452 | ----+----------------------+--------------+--------------+------------------ 1841|Sweet _v._ Cater |Chancery |V. C. Shadwell,|5 Jur. 68 | Publisher may prevent author from issuing | | competing edition, 444 | ----+----------------------+--------------+--------------+------------------ 1842|Copyright act |5 & 6 Vict. c. 45 ----+----------------------+--------------+--------------+------------------ 1842|Customs act |5 & 6 Vict. c. 47 ----+----------------------+--------------+--------------+------------------ 1842|Designs copyright act |5 & 6 Vict. c. 100 ----+----------------------+--------------+--------------+------------------ 1843|Amendatory copyright act, for designs |6 & 7 Vict. c. 65 ----+----------------------+--------------+--------------+------------------ 1843|Lennie _v._ Pillans |Scotch Ct. |L. P. Boyle, |111 Sc. Rev. R. | | Sess. | | | Compilations of non-copyright material showing |2, s. 171 | originality and labor, protected, 81 | ----+----------------------+--------------+--------------+------------------ 1844|International copyright act |7 & 8 Vict. c. 12 ----+----------------------+--------------+--------------+------------------ 1844|Act to reduce duties on books and prints |7 & 8 Vict. c. 73 ----+----------------------+--------------+--------------+------------------ 1846|Amendatory act for duties on books |9 & 10 Vict. c. 58 ----+----------------------+--------------+--------------+------------------ 1846|U. S. act. Deposit of copies ----+----------------------+--------------+--------------+------------------ 1847|Colonial copyright act |10 & 11 Vict. c. 95 ----+----------------------+--------------+--------------+------------------ 1847|Story's Executors |U. S. C. C. |J. McLean, |4 McLean, 306 | _v._ Holcombe | | | | Fair abridgment, by ruling precedents, not an | | invasion of literary property, 81 | ----+----------------------+--------------+--------------+------------------ 1848|Baker _v._ Taylor |U. S. C. C. |J. Betts, |2 Blatch. 82 | Error of 1847 for 1846 in copyright notice | | invalidates copyright, 129 | ----+----------------------+--------------+--------------+------------------ 1848|Russell _v._ Smith |Queen's Bench |L. Denman, |12 Q. B. 217 | Dramatic rendition of song without costume or | | scenery adjudged "dramatic piece," 176, 191; | | registration of dramatic piece optional in | | England, 189 | ----+----------------------+--------------+--------------+------------------ 1849|Albert, Prince, _v._ |Ct. App. |V. C. Bruce, |2 De G. & Sm. 652 | Strange | | | | Common law protects until publication, 187; | | descriptive catalogue and exhibition of copies | | of unpublished art work infringements, 238 | ----+----------------------+--------------+--------------+------------------ 1850|Copyright in designs act | 13 & 14 Vict. | | c. 104 ----+----------------------+--------------+--------------+------------------ 1851|Protection of works. London international exhibition|14 Vict. c. 8 ----+----------------------+--------------+--------------+------------------ 1852|International copyright act |15 & 16 Vict. c. 12 ----+----------------------+--------------+--------------+------------------ 1852|Bogue _v._ Houlston |Chancery |V. C. Parker, |5 De G. & Sm. 267 | Copyright extends to every part of a book, 76 | ----+----------------------+--------------+--------------+------------------ 1852|Little _v._ Gould |U.S. C.C. App.|J. Nelson, |2 Blatch. 362 | State copyright owner in work of salaried | | law reporter, 98 | ----+----------------------+--------------+--------------+------------------ 1852|Pulte _v._ Derby |U. S. C. C. |J. McLean, |5 McLean, 328 | Publishing contract for "edition," does not | | prohibit successive printings, 446 | ----+----------------------+--------------+--------------+------------------ 1853|Customs consolidation act | 16 & 17 Vict. | | c. 107 ----+----------------------+--------------+--------------+------------------ 1853|Cox _v._ Cox |Chancery |V. C. Wood, |11 Hare, 118 | Writer may not prevent alterations made by | | employer, 443 | ----+----------------------+--------------+--------------+------------------ 1853|Stowe _v._ Thomas |U. S. C. C. |J. Grier, |2 Wall Jr. 547 | No exclusive right of translation under | | early law, 77 | ----+----------------------+--------------+--------------+------------------ 1854|Jefferys _v._ Boosey |House of Lords| |4 H. L. C. 815 | Definition of the two senses of copyright, | | 1, 2, 4; non-resident foreigner could not | | acquire copyright under act of 1710 by | | first publication in England, 108, 373 | ----+----------------------+--------------+--------------+------------------ 1854|Stevens _v._ Benning |Chancery |V. C. Wood, |1 Kay & J. 168 | Contract for publication a personal contract | | not assignable without consent, 444 | ----+----------------------+--------------+--------------+------------------ 1855|Customs consolidation act. |18 & 19 Vict. c. 96 ----+----------------------+--------------+--------------+------------------ 1855|U. S. Act. Deposits through mails free ----+----------------------+--------------+--------------+------------------ 1855|Stevens _v._ Benning |Ct. App. |Lds. J. Bruce |6 De G. M. | | & Turner, | & G. 223 | Affirming Stevens _v._ Benning. | ----+----------------------+--------------+--------------+------------------ 1856|U. S. supplementary act (dramatic) ----+----------------------+--------------+--------------+------------------ 1858|Amendatory copyright act, for designs |21 & 22 Vict. c. 70 ----+----------------------+--------------+--------------+------------------ 1858|Reade _v._ Bentley |Chancery |V. C. Wood, |4 K. & J. 656 | Contract for publication a personal contract | | of "joint adventure" terminable by author | | if not to publisher's loss, 434, 444 | ----+----------------------+--------------+--------------+------------------ 1859|U. S. act. Place of deposit ----+----------------------+--------------+--------------+------------------ 1860|Blackwood _v._ |Scotch Ct. Sess. |23 Sc. Sess. | Brewster | | | c. 2, s. 142 | Reprints to replace destroyed copies do not | | constitute a new edition, 445 | ----+----------------------+--------------+--------------+------------------ 1860|Crookes _v._ Petter |Rolls Ct. |Romilly, |6 Jur. 1131 | | | M. R., | | Editor's name not requisite part of title, 445 | ----+----------------------+--------------+--------------+------------------ 1860|Turner _v._ Robinson |Irish Ct. |Smith, M. R., |10 Ir. Ch. R. 121 | | Chanc. | | | Exhibition, with restriction as to copying, | | not publication, 232 | ----+----------------------+--------------+--------------+------------------ 1860|Turner _v._ Robinson |Ct. App. |L. C. Brady, |10 Ir. Ch. R. 510 | Liability under breach of contract, 232; | | Academy exhibition considered publication, 232 | ----+----------------------+--------------+--------------+------------------ 1861|Amendatory copyright act, for designs |24 & 25 Vict. c. 73 ----+----------------------+--------------+--------------+------------------ 1861|Statute law revision act |24 & 25 Vict. c. 101 ----+----------------------+--------------+--------------+------------------ 1861|U. S. act. Appeal for copyright cases to Supreme Court ----+----------------------+--------------+--------------+------------------ 1862|Fine arts copyright act |25 & 26 Vict. c. 68 ----+----------------------+--------------+--------------+------------------ 1862|Boucicault _v._ Fox |U. S. C. C |J. Shipman, |5 Blatch. 87 | A man's intellectual productions his own, | | except under valid agreement with employer, 97 | ----+----------------------+--------------+--------------+------------------ 1862|Drury _v._ Ewing |U. S. C. C. |J. Leavitt, |1 Bond, 540 | Diagram with directions for dress cutting | | adjudged "book," 69 | ----+----------------------+--------------+--------------+------------------ 1862|Howitt _v._ Hall |Chancery |V. C. Wood, |6 L. T. (N. S.) 348 | Copies printed within term of contract may be | | sold after expiration, 445 | ----+----------------------+--------------+--------------+------------------ 1862|Reade _v._ Conquest |Common Pleas |C J. Erle, |11 C. B. (N. S.) 478 | Dramatization based on novelization, | | infringement of original play, 172 | ----+----------------------+--------------+--------------+------------------ 1863|Boucicault _v._ |Chancery |V. C Wood, |1 H. & M. 597 | Delafield | | | | First publication outside British Dominions | | under int. copr. act, forfeits playright, 184 | ----+----------------------+--------------+--------------+------------------ 1863|Hotten _v._ Arthur |Chancery |V. C. Wood, |1 H. & M. 603 | Catalogue of old books copyrightable, 73 | ----+----------------------+--------------+--------------+------------------ 1863|Tinsley _v._ Lacy |Chancery |V. C Wood, |1 H. & M. 747 | Printed dramatization enjoined as using | | substantial parts of novel, 173 | ----+----------------------+--------------+--------------+------------------ 1864|Low _v._ Routledge |Chancery | V. C. |33 L. J. (N. S.) | | | Kindersley | | Inaccuracy in name of proprietor invalidates | Ch. 717 | copyright entry, 128 | ----+----------------------+--------------+--------------+------------------ 1865|U. S. supplementary act (photographs) ----+----------------------+--------------+--------------+------------------ 1867|Statute law revision act |30 & 31 Vict. c. 59 ----+----------------------+--------------+--------------+------------------ 1867|U. S. act. Penalty for failure to deposit ----+----------------------+--------------+--------------+------------------ 1867|Maxwell _v._ Hogg |Chancery |L. Cairns, |2 Ch. D. 307 | _Belgravia_--Title not protectable until | | associated with a published work, 75, 84, 85 | ----+----------------------+--------------+--------------+------------------ 1868|Daly _v._ Palmer |U. S. C. C. |J. Blatchford,|6 Blatch. 256 | Test of piracy defined, 175 | ----+----------------------+--------------+--------------+------------------ 1868|Routledge _v._ Low |House of Lords |L. R., 3 H. L. 100 | Foreigner temporarily resident at first | | publication may acquire British copyright under | | act of 1842, 109; first publication probably | | single requisite for copyright 109, 374 | ----+----------------------+--------------+--------------+------------------ 1869|Lawrence _v._ Dana |U. S. C. C. |J. Clifford, |4 Cliff. 1 | An abridgment permitted as established by | | precedent, 81; new notice on new edition | | protects matter copyright in old edition, 134; | | "copying is not confined to literal | | repetition," 254 | ----+----------------------+--------------+--------------+------------------ 1869|Taylor _v._ Pillow |Chancery |V. C. James, |L. R. 7 Eq. 418 | Proprietor, after assigning copyright, may | | dispose of unsold copies, 446 | ----+----------------------+--------------+--------------+------------------ 1870|U. S. consolidation act ----+----------------------+--------------+--------------+------------------ 1870|Black _v._ Murray |Scotch Ct. Sess.|L. Inglis, |IX Sc. Rev. R. 3, | New editions "enlarged and improved" | s. 443 | copyrightable, 75 | ----+----------------------+--------------+--------------+------------------ 1871|Stannard _v._ Harrison|Chancery |V. C. Bacon, |24 L. T. (N. S.) | Right in map drawn to order vests in | 570 | employer, 239 | ----+----------------------+--------------+--------------+------------------ 1872|Clark _v._ Bishop |Exchequer |C. B. Kelly, |25 L. T. (N. S.) | Song dramatically rendered protected as | 908 | dramatic piece, 176 | ----+----------------------+--------------+--------------+------------------ 1872|Cobbett _v._ Woodward |Chancery |L. Romilly, |L. R. 14 Eq. 407 | No copyright in an advertisement, 73 | ----+----------------------+--------------+--------------+------------------ 1872|Osgood _v._ Allen |U. S. C. C. |J. Shepley, |1 Holmes, 185 | "_Our Young Folks_"--a title not copyrightable | | as such, 82, 85 | ----+----------------------+--------------+--------------+------------------ 1872|Palmer _v._ DeWitt |N. Y. Ct. App.|J. Allen, |47 N. Y. 532 | Performance of play not publication, 180 | ----+----------------------+--------------+--------------+------------------ 1873|U. S. act. Inclusion in Revised Statutes ----+----------------------+--------------+--------------+------------------ 1874|U. S. act. Notice, fees, etc. ----+----------------------+--------------+--------------+------------------ 1874|Isaacs _v._ Daly |N. Y. Sup. Ct.|J. Curtis, |7 Jones & Sp. 511 | Title "Charity" cannot be monopolized, 82, 84 | ----+----------------------+--------------+--------------+------------------ 1874|Toole _v._ Young |Queen's Bench |C. J. |9 Q. B. 523 | | | Cockburn, | | Right of dramatization not included under book | | copyright in England, 172 | ----+----------------------+--------------+--------------+------------------ 1874|Ward _v._ Beeton |Chancery |V. C. Malins, |L. R. 19 Eq. 207 | Proprietary name may not be used on competing | | publication, 445 | ----+----------------------+--------------+--------------+------------------ 1874|Warne _v._ Routledge |Chancery |Jessel, M. R.,|L. R. 18 Eq. 497 | Right of publishing exclusive fortune of | | contract only, 445 | ----+----------------------+--------------+--------------+------------------ 1875|International copyright act |38 Vict. c. 12 ----+----------------------+--------------+--------------+------------------ 1875|Canada copyright act |38 & 39 Vict. c. 53 ----+----------------------+--------------+--------------+------------------ 1875|Amendatory copyright act for designs |38 & 39 Vict. c. 93 ----+----------------------+--------------+--------------+------------------ 1875|Banks _v._ McDivitt |U. S. C. C. |J. Shipman, |13 Blatch. 163 | Test of piracy defined, 251 ----+----------------------+--------------+--------------+------------------ 1875|Boucicault _v._ Hart |U. S. C. C. |J. Hunt, |13 Blatch. 37 | Exact conformity with statute requisite, 149 | ----+----------------------+--------------+--------------+------------------ 1875|Parkinson _v._ Laselle|U. S. C. C. |J. Sawyer, |3 Sawyer, 330 | Exact conformity with statute requisite, 149 | ----+----------------------+--------------+--------------+------------------ 1876|Customs law consolidation act |39 & 40 Vict. c. 36 ----+----------------------+--------------+--------------+------------------ 1876|Boucicault _v._ |Chancery |J. James, |5 Ch. D. 267 | Chatterton | | | | Previous performance of "Shaughraun" in N. Y. | | forfeited playright, 184 | ----+----------------------+--------------+--------------+------------------ 1876|Chatterton _v._ Cave |Ct. App. |C. J. |46 L. J. (N. S.) | | | Cockburn, | | Rival dramatization, utilizing not substantial |C. L. 97 | added scenes, permitted, 174 | ----+----------------------+--------------+--------------+------------------ 1878|Chatterton _v._ Cave |House of Lords| |3 A. C. 483 | Following decision of lower court. | ----+----------------------+--------------+--------------+------------------ 1878|Weldon _v._ Dicks |Chancery |V. C. Malins, |10 Ch. D. 247 | Title "Trial and Triumph" protected as virtually | | trade-mark, 83 | ----+----------------------+--------------+--------------+------------------ 1879|U. S. act. Transmission through mails ----+----------------------+--------------+--------------+------------------ 1879|Hole _v._ Bradbury |Chancery |J. Fry, |12 Ch. D. 886 | Authors entitled to resume rights succeeding | | publishers, 445 | ----+----------------------+--------------+--------------+------------------ 1879|Kelly _v._ Byles |Chancery |V. C. Bacon, |13 Ch. D. 682 | Title "Post Office directory" not copyrightable. | | No resemblance of publications, 83 | ----+----------------------+--------------+--------------+------------------ 1880|Putnam _v._ Pollard |N. Y. Sup. Ct.|J. Beach, |N. Y. Daily Reg. | State common law superseded by U. S. statute, 40 |O. 13 '80 ----+----------------------+--------------+--------------+------------------ 1881|Dicks _v._ Yates |Chancery |V. C. Bacon, |18 Ch. D. 76 | "Splendid misery"--title thrice used, common | | property, not protectable, 83 | ----+----------------------+--------------+--------------+------------------ 1882|Copyright (musical compositions) act |45 & 46 Vict. | |c. 40 ----+----------------------+--------------+--------------+------------------ 1882|U. S. act. Position of notice ----+----------------------+--------------+--------------+------------------ 1882|Cable _v._ Marks |Chancery |V. C. Bacon, |47 L. T. (N. S.) | Shadow-trick perforated card, not copyrightable, |432 | 242 | ----+----------------------+--------------+--------------+------------------ 1882|Chappell _v._ Boosey |Chancery |J. North, |21 Ch. D. 232 | Publication as book before performance does not | | preclude performing rights, 183, 184 | ----+----------------------+--------------+--------------+------------------ 1882|Maple _v._ Junior Army |Ct. App. |J. Jessel, |21 Ch. D. 369 | & Navy Stores | | | | Illustrated advertising catalogue protected, 73 | ----+----------------------+--------------+--------------+------------------ 1883|Patents, designs, and trade marks act |46 & 47 Vict. | |c. 57 ----+----------------------+--------------+--------------+------------------ 1883|Clemens _v._ Belford |U. S. C. C. |J. Blodgett, |14 F. R. 728 |Right to publish involves right to state authorship, 98 ----+----------------------+--------------+--------------+------------------ 1883|Thomas _v._ Lennon |U. S. C. C. |J. Lowell, |14 F. R. 849 | Unpublished oratorio infringed by orchestral | | score from non-copyright piano arrangement, 187 | ----+----------------------+--------------+--------------+------------------ 1884|Burrow-Giles Lith. |U. S. Sup. Ct.|J. Miller, |111 U. S. 53 |Co. _v._ Sarony | | | | "Writings" construed to cover photographs, 67, | | 240; N. Sarony (for Napoleon Sarony) sufficing | | as name, 129 | ----+----------------------+--------------+--------------+------------------ 1884|Estes _v._ Williams |U. S. C. C. |J. Wheeler, |21 F. R. 189 | "Chatterbox"--title restrained from use on | | juveniles of like general character, 83 | ----+----------------------+--------------+--------------+------------------ 1884|Duck _v._ Bates |Ct. App. |Brett, M. R., |13 Q. B. 843 | Amateur performance not for profit not a public | | representation, 186 | ----+----------------------+--------------+--------------+------------------ 1884|Nicols _v._ Pitman |Chancery |J. Kay, |26 Ch. D. 374 | Indirect copying by shorthand characters an | | infringement, 254 | ----+----------------------+--------------+--------------+------------------ 1886|International copyright act |49 & 50 Vict. | |c. 33 ----+----------------------+--------------+--------------+------------------ 1886|Aronson _v._ |U. S. C. C. |J. Blodgett, |28 F. R. 75 | Fleckenstein | | | | Title of drama protected under common law, 192 | ----+----------------------+--------------+--------------+------------------ 1886|Harper _v._ Shoppell |U. S. C. C. |J. Wallace, |23 Blatch. 431 | Unprinted electrotype did not infringe | | copyright, 235 | ----+----------------------+--------------+--------------+------------------ 1886|Holloway _v._ Bradley |U. S. C. C. |J. Butler, |_Pub. Week._ 30:223 | Publisher may affix material to copyright | | book, 100 | ----+----------------------+--------------+--------------+------------------ 1886|Monaghan _v._ Taylor |Queen's Bench |L. C. J. |2 T. L. R. 685 | | | Coleridge, | | Proprietor of music hall liable for infringement | | by singer, 193 | ----+----------------------+--------------+----------------+----------------- 1887|Estes _v._ Worthington|U. S. C. C. |J. Shipman, |31 F. R. 154 | Title "Chatterbox" protected as trade-mark | | against simulating publication of differing | | contents, 84, 261 | ----+----------------------+--------------+--------------+------------------ 1887|Harper _v._ Franklin |U. S. C. C. |J. Waite, |_Pub. Week._ 31:372 | Sq. Lib. Co. | | | | Trade-mark rights in name "Franklin Square | | library" protected, 262 | ----+----------------------+--------------+--------------+------------------ 1888|Copyright (musical compositions) act |51 & 52 Vict. c. 17 ----+----------------------+--------------+--------------+------------------ 1888|Patents, designs and trade marks act |51 & 52 Vict. c. 50 ----+----------------------+--------------+--------------+------------------ 1888|Callaghan _v._ Myers |U. S. Sup. Ct.|J. Blatchford,|128 U. S. 617 | 1866 for 1867 does not invalidate copyright | | notice, 130 | ----+----------------------+--------------+--------------+------------------ 1888|Gottsberger _v._ Estes|U. S. C. C. |J. Colt, |33 F. R. 381 | Publication before deposit voided copyright | | (under old law), 136 | ----+----------------------+--------------+--------------+------------------ 1888|Mitchell & Miller _v._|N. Y. Sup. Ct.| |_Pub. Week._ 34:586 | White & Allen | | | | "Life"--misleading use of title enjoined, 84 | ----+----------------------+--------------+--------------+------------------ 1888|Munro _v._ Beadle |N. Y. Sup. Ct.|J. Ingraham, |18 St. R. 278 | "Sleuth" as a dictionary word not protectable, 262 ----+----------------------+--------------+----------------+---------------- 1888|Munro _v._ Smith |N. Y. Sup. Ct.|J. O'Brien, |18 St. R. 279 | Use of name "Sleuth" when misleading the public | | actionable, 262 | ----+----------------------+--------------+--------------+------------------ 1888|Schumacher _v._ |U. S. C. C. |J. Wallace, |35 F. R. 210 | Wogram | | | | Copyright probably voided by too early date in | | notice, 130; picture intended for cigar label | | not copyrightable, but trade-mark, 237 | ----+----------------------+--------------+--------------+------------------ 1888|Warne _v._ Seebohm |Chancery |J. Stirling, |39 Ch. D. 73 | Dramatization quoting beyond fair use | | infringement of novel, 173 | ----+----------------------+--------------+--------------+------------------ 1889|Revenue act |52 & 53 Vict. c. 42 ----+----------------------+--------------+--------------+------------------ 1889|Beere _v._ Ellis |Queen's Bench |B. Pollock, |5 T. L. R. 330 | Rival dramatization enjoined, because added | | features were infringed, 173 | ----+----------------------+--------------+--------------+------------------ 1889|Cate _v._ Devon |Chancery |J. North, |40 Ch. D. 500 | Indirect copying from newspaper reprint held | | infringement, 254 | ----+----------------------+--------------+--------------+------------------ 1889|Everson _v._ Young |D. C. Sup. Ct.|J. Cole, |26 W. L. R. 546 | Blank book not copyrightable, 72; librarian of | | Congress not discretionary officer, 72, 96 | ----+----------------------+--------------+--------------+------------------ 1889|Gilmore _v._ Anderson |U. S. C. C. |J. Wheeler, |38 F. R. 846 | Common use of non-copyright material or work on | | same subject not infringement, 255 | ----+----------------------+--------------+--------------+------------------ 1890|Munro _v._ Beadle |N. Y. App. |J. Macomber, |55 Hun 312 | | Div. | | | "Sleuth" properly subject of trade-mark, 262 | ----+----------------------+--------------+--------------+------------------ 1890|Munro _v._ Smith |U. S. C. C. |J. Shipman, |42 F. R. 266 | Illustration picturing "Old Sleuth" not | | infringement, 262 | ----+----------------------+--------------+--------------+------------------ 1890|Schlesinger _v._ |Chancery |J. Kekewich, |63 L. T. (N. S.) | Bedford | | | 762 | Independent and "essentially different" | | dramatization permitted despite author's own | | dramatization, 173 | ----+----------------------+--------------+--------------+------------------ 1890|Schlesinger _v._ |Chancery |J. Kekewich, |63 L. T. (N. S.) | Turner | | | 764 | Plays substantially similar an infringement, 173 | ----+----------------------+--------------+--------------+------------------ 1891|U. S. amendatory (inter. copr.) act ----+----------------------+--------------+--------------+------------------ 1891|Munro _v._ Tousey |N. Y. Ct. App.|J. Gray, |129 N. Y. 38 | Name "Sleuth" not protectable, 262 | ----+----------------------+--------------+--------------+------------------ 1891|Black _v._ Ehrich |U. S. C. C. |J. Wallace, |44 F. R. 793 | Title "Encyclopædia Britannica" not protected | | when public is not misled, 261 | ----+----------------------+--------------+--------------+------------------ 1891|Dodd _v._ Smith |Penn. Sup. Ct.|_Per curiam_, |144 Pa. St. 340 | Underselling by rebinds of paper-covered edition | | not enjoinable, 263 | ----+----------------------+--------------+--------------+------------------ 1891|Falk _v._ Brett Lith. |U. S. C. C. |J. Wheeler, |48 F. R. 678 | Co. | | | | Posing for photograph justifies copyright by | | photographer.--Reversed lithograph infringement, | | 241 | ----+----------------------+--------------+--------------+------------------ 1891|Falk _v._ Gast |U. S. C. C. |J. Coxe, |48 F. R. 262 | Copyright not forfeited by omission of notice on | | remounting of photographs by another than | | proprietor, 236; posing for photograph justifies | | copyright by photographer, 241 | ----+----------------------+--------------+--------------+------------------ 1891|Fishburn _v._ |Chancery |J. Stirling, |[1891] 2 Ch. 371 | Hollingshead | | | | Registration and deposit requisite except under | | International copyright act, 313 | ----+----------------------+--------------+--------------+------------------ 1892|Duck _v._ Mayen |Queen's Bench |J. Day, |8 T. L. R. 339 | Limitation of specific license for drama | | enforced, 190 | ----+----------------------+--------------+--------------+------------------ 1892|Fishel _v._ Lueckel |U. S. C. C. |J. Townsend, |53 F. R. 499 | Appropriation of part of a work an infringement, | | 244 | ----+----------------------+--------------+--------------+------------------ 1892|Fuller _v._ Bemis |U. S. C. C. |J. Lacombe, |50 F. R. 926 | Skirt dance not a dramatic composition, 177 | ----+----------------------+--------------+--------------+------------------ 1892|Lamb _v._ Evans |Ct. App. |L. J. Lindley,|[1893], 1 Ch. 218 | Copyright in sheet of advertisements upheld, 74 | ----+----------------------+--------------+--------------+------------------ 1892|Lee _v._ Gibbings |Chancery |J. Kekewich, |8 T. L. R. 773 | Injury to author's repute question of libel not | | of copyright, 274 | ----+----------------------+--------------+--------------+------------------ 1892|Lucas _v._ Williams |Ct. App. |L. Esher, |L. R. [1892] 2 | Photograph of engraving infringes original |Q. B. 113 | painting, 243, 274 | ----+----------------------+--------------+--------------+------------------ 1892|Walter _v._ Steinkopff|Chancery |J. North, |[1892] 3 Ch. 489 | Copyright in form of news protectable, 89, 259. | | Copying two-fifths of newspaper article, "unfair | | use," 259 | ----+----------------------+--------------+--------------+------------------ 1892|Daly _v._ Webster |U. S. C. C. |J. Lacombe, |56 F. R. 483 | | App. | | | Infringement by single situation from dramatic | | work, 191; change of sub-title after copyrighting| | immaterial, 192 | ----+----------------------+--------------+--------------+------------------ 1893|U. S. enabling act (deposit) ----+----------------------+--------------+--------------+------------------ 1893|Black _v._ Allen |U. S. C. C. |J. Townsend, |56 F. R. 764 | Inclusion of copyright material in non-copyright | | work does not vitiate copyright, 261; copyright | | may be transferred to foreign owner, 261; | | variation from registered title on use in | | cyclopædia immaterial, 261 | ----+----------------------+--------------+--------------+------------------ 1893|Falk _v._ Donaldson |U. S. C. C. |J. Townsend, |57 F. R. 32 | Differences in lithographic reproduction of | | photograph not a defense, 244 | ----+----------------------+--------------+--------------+------------------ 1893|Falk _v._ Gast |U. S. C. C. |J. Shipman, |54 F. R. 890 | | App. | | | Miniature samples not a publication of picture. | | Affirming Falk _v._ Gast, 235 | ----+----------------------+--------------+----------------+---------------- 1893|Falk _v._ Heffron |U. S. C. C. |J. Wheeler, |56 F. R. 299 | "Sheets" defined--copyright law must be strictly | | construed as to forfeiture and penalties, 271 | ----+----------------------+--------------+--------------+------------------ 1893|French _v._ Day et al.|Queen's Bench |J. Kennedy, |9 T. L. R. 548 | Proprietor, not manager, of theatre responsible | | defendant, 193 | ----+----------------------+--------------+--------------+------------------ 1893|Hanfstaengl _v._ |Queen's Bench |J. Charles, |[1893] 2 Q. B. 1 | Holloway | | | | Registration and deposit not requisite, 313 | ----+----------------------+--------------+--------------+------------------ 1893|Macdonald _v._ |West. Co. Ct. | |Copinger 782 | National Review | | | | Printers' proof sent by publisher to author | | implies acceptance of ms., 442 | ----+----------------------+--------------+--------------+------------------ 1893|Reichardt _v._ Sapte |Queen's Bench |J. Hawkins, |[1893] 2 Q. B. 308 | Similar play previously written but later | | performed cannot be enjoined, 187 | ----+----------------------+--------------+--------------+------------------ 1894|Drummond _v._ Altemus |U. S. C. C. |J. Dallas, |60 F. R. 338 | Author may restrain under common law imperfect | | reports of lectures, 264 | ----+----------------------+--------------+--------------+------------------ 1894|Ellis _v._ Ogden |Queen's Bench |J. Collins, |11 T. L. R. 50 | Right in photographs not paid for belongs to | | photographer, 239 | ----+----------------------+--------------+--------------+------------------ 1894|French _v._ Kreling |U. S. C. C. |J. Hawley, |63 F. R. 621 | Printing of libretto for sole use of singers not | | publication, 181 | ----+----------------------+--------------+--------------+------------------ 1894|Gilbert _v._ Star |Chancery |J. Chitty, |11 T. L. R. 4 | Newspaper report of play under rehearsal | | forbidden under common law, 186 | ----+----------------------+--------------+--------------+------------------ 1894|Hanfstaengl _v._ |Ct. App. |L. Esher, |[1895] 1 Q. B. 347 | American Tobacco Co.| | | | Registration and deposit in England not necessary| | for foreign work, 313 | ----+----------------------+--------------+--------------+------------------ 1894|Hanfstaengl _v._ |House of Lords| |[1895] A. C. 20 | Baines | | | | _Tableaux_ not infringement of | | pictures--"Design" does not cover | | _tableaux_, 242 | ----+----------------------+--------------+--------------+------------------ 1894|Henderson _v._ |U. S. C. C. |J. Putnam, |60 F. R. 758 | Tompkins | | | | Literary merit not requisite, 177 | ----+----------------------+--------------+--------------+------------------ 1894|Press Pub. Co. _v._ |U. S. C. C. |J. Wheeler, |59 F. R. 324 | Falk | | | | Proprietorship of gratuitous photograph of | | actress remains with photographer, 238 | ----+----------------------+--------------+--------------+------------------ 1894|Social Register |U. S. C. C. |J. Green, |60 F. R. 270 | Assoc. _v._ Howard | | | | Similar title enjoined as unfair competition, 262| ----+----------------------+--------------+--------------+------------------ 1894|Springer _v._ Falk |U. S. C. C. |J. Lacombe, |59 F. R. 707 | | App. | | | Composite photograph from two copyrighted | | portraits held an infringement, 244 | ----+----------------------+--------------+--------------+------------------ 1894|Werckmeister _v._ |U. S. C. C. |J. Townsend, |63 F. R. 808 | Springer | | | | Copyright does not pass with sale of painting, | | 234; illustration of picture in exhibition | | catalogue not publication, 234 | ----+----------------------+--------------+--------------+------------------ 1894|Littleton _v._ Ditson |U. S. C. C. |J. Colt, |62 F. R. 597 | Music sheets excepted from manufacturing | | provisions, 167 | ----+----------------------+--------------+--------------+------------------ 1894|West Pub. Co. _v._ |U. S. C. C. |J. Coxe, |64 F. R. 360 | Lawyers' Pub. Co. | | | | Only proved "instances of piracy" in law digest | | enjoined, 258 | ----+----------------------+--------------+--------------+------------------ 1895|U. S. act. Government documents not copyrightable ----+----------------------+--------------+--------------+------------------ 1895|U. S. act. Penalties for infringement of photographs, etc. ----+----------------------+--------------+--------------+------------------ 1895-1905 State dramatic laws ----+----------------------+--------------+--------------+------------------ 1895|Ditson _v._ Littleton |U. S. C. C. |_Per curiam_, |67 F. R. 905 | | App. | | | Affirming Littleton _v._ Ditson | ----+----------------------+--------------+--------------+------------------ 1895|Bolton _v._ Aldin |Queen's Bench |J. Grantham, |65 L. J. Q. B. 120 | Drawing remade from photograph infringement, 241 | ----+----------------------+--------------+--------------+------------------ 1895|Chicago Dollar |U. S. C. C. |J. Baker, |65 F. R. 463 | Directory Co. _v._ | App. | | | Chicago Dir. Co. | | | | Quantity of common errors evidence of | | infringement in compilation, 257 | ----+----------------------+--------------+--------------+------------------ 1895|Ellis _v._ Marshall |Queen's Bench |J. Charles, |11 T. L. R. 522 | Right in photograph paid for vests in sitter, 239| ----+----------------------+--------------+--------------+------------------ 1895|Exchange Tel. Co. |Queen's Bench |L. Esher, |[1896] 1 Q. B. | _v._ Gregory | | M. R., | 147 | Information furnished to subscribers protected, 89| ----+----------------------+--------------+--------------+------------------ 1895|Fuller _v._ Blackpool |Ct. of App. |L. Esher, |[1895] 2 Q. B. | Winter Gardens Co. | | M. R., | 429 | Song in costume but without dramatic action, not | | dramatic piece, 176 | ----+----------------------+--------------+--------------+------------------ 1895|Harper _v._ Ganthony |U. S. C. C. |J. Lacombe, |Hamlin Copr. C. | "Trilby"--monologues in costume following plot, | & D. 138 | a dramatic infringement, 82, 171 | ----+----------------------+--------------+--------------+------------------ 1895|Harper _v._ Ranous |U. S. C. C. |J. Lacombe, |67 F. R. 904 | Right of dramatization of "Trilby" included in | | copyright of novel, 170 | ----+----------------------+--------------+--------------+------------------ 1895|Keeler _v._ Standard |U. S. Sup. Ct.|J. Shiras, |157 U. S. 659 | Folding Bed Co. | | | | Sale of patented article absolute and complete | | unless restricted by contract, 54 | ----+----------------------+--------------+--------------+------------------ 1895|Snow _v._ Mast |U. S. C. C. |J. Sage, |65 F. R. 995 | Abbreviation of date ('94 for 1894) in copyright | | notice permitted, 130 | ----+----------------------+--------------+--------------+------------------ 1895|Wheeler _v._ Cobbey |U. S. C. C. |J. Shiras, |70 F. R. 487 | Damages dependent on forfeiture, within statutory| | 2 years, 272 | ----+----------------------+--------------+--------------+------------------ 1896|Webster _v._ Daly |U. S. Sup. Ct.|J. Fuller, |163 U. S. 155 | Affirming Daly _v._ Webster | ----+----------------------+--------------+--------------+------------------ 1896|Gabriel _v._ McCabe |U. S. C. C. |J. Grosscup, |74 F. R. 743 | License of song for a collection permits use in | | combination or abridgment of such collection, 82,| | 256. | ----+----------------------+--------------+--------------+------------------ 1896|Griffith _v._ Tower |Chancery |J. Stirling, |L. R. [1897] 1 | Publishing agreement not transferable as | Ch. 21 | bankruptcy asset, 451 | ----+----------------------+--------------+--------------+------------------ 1896|Guggenheim _v._ Leng |Queen's Bench |J. Cave, |12 T. L. R. 491 | Printing illustration as separate supplement | | infringement, as outside licensed use, 236 | ----+----------------------+--------------+--------------+------------------ 1896|Ladd _v._ Oxnard |U. S. C. C. |J. Putnam, |75 F. R. 703 | Leasing a book to subscribers is publication, 53 | ----+----------------------+--------------+--------------+------------------ 1896|Mead _v._ West Pub. |U. S. C. C. |J. Lochren, |80 F. R. 380 | Co. | | | | Use from copyright book of non-copyright material| | not infringement, 257 | ----+----------------------+--------------+--------------+------------------ 1896|Mott _v._ Clow |U. S. C. C. |J. Grosscup, |72 F. R. 168 | Illustrations in trade catalogue being "mere | | advertisements" not copyrightable, 237 | ----+----------------------+--------------+--------------+------------------ 1896|Pierce & Bushnell Co. |U. S. C. C. |J. Colt, |72 F. R. 54 | _v._ Werckmeister | App. | | | Exhibition without copyright notice considered | | publication, 233 | ----+----------------------+--------------+--------------+------------------ 1896|Pitt Pitts _v._ George|Ct. App. |J. Lindley, |[1896] 2 Ch. 866 | Importation of foreign edition prohibited under | | British copyright, 292; "proprietor" means owner | | of British copyright, 292, (296) | ----+----------------------+--------------+--------------+------------------ 1896|Press Pub. Co. _v._ |U. S. C. C. |J. Lacombe, |73 F. R. 196 | Monroe | App. | | | Publication without author's consent does not | | divest him of any rights, 45; broad | | interpretation of author's rights, 48 | ----+----------------------+--------------+--------------+------------------ 1896|Tree _v._ Bowkett, |Chancery |J. Kekewich, |74 L. T. (N. S.) 77 | "Trilby"--rival dramatization, copying added | | scenes enjoined, 174 | ----+----------------------+--------------+--------------+------------------ 1897|U. S. act. Appointment of Register of Copyrights ----+----------------------+--------------+--------------+------------------ 1897|U. S. act. Penalty for false claim of copyright ----+----------------------+--------------+--------------+------------------ 1897|U. S. act. Unauthorized representation ----+----------------------+--------------+--------------+------------------ 1897|Hoyt _v._ Bates |U. S. C. C. |J. Putnam, |81 F. R. 641 | Ownership of copyright property is question for | | state courts, 268 | ----+----------------------+--------------+--------------+------------------ 1897|Morrison _v._ |U. S. C. C. |J. Seaman, |87 F. R. 330 | Pettibone | | | | Uncompleted reproductions not exact copies and | | not forfeitable, 272 | ----+----------------------+--------------+--------------+------------------ 1897|Osgood _v._ Aloe |U. S. C. C. |J. Adams, |83 F. R. 470 | Omission of name vitiates copyright notice | | though given in imprint, 128 | ----+----------------------+--------------+--------------+------------------ 1897|West Pub. Co. _v._ |U. S. C. C. |J. Lacombe, |79 F. R. 756 | Lawyers' Pub. Co. | App. | | | Whole law digest enjoined, although only parts | | were infringements, 258 | ----+----------------------+--------------+--------------+------------------ 1898|Bolton _v._ London |Queen's Bench |J. Mathew, |14 T. L. R. 550 | Exhibitions | | | | Employer, giving to engraver only "general idea,"| | not party liable for infringement, 240; | | lithograph outline from copyright picture, though| | with other details, held infringement, 244; | | parties ordering poster held not punishable for | | infringement by lithographer without their | | knowledge, 253 | ----+----------------------+--------------+--------------+------------------ 1898|Broder _v._ Zeno |U. S. C. C. |J. Morrow, |88 F. R. 74 | Mauvais | | | | Indecent song not copyrightable--melody | | protected, 86 | ----+----------------------+--------------+--------------+------------------ 1898|Jewellers' Merc. |N. Y. Ct. App.|C. J. Parker, |155 N. Y. 241 | Agency _v._ Jeweller's Wkly Pub. Co. | | Leasing a book to subscribers is publication, 53 | ----+----------------------+--------------+--------------+------------------ 1898|Miles _v._ Amer. |U. S. C. C. |J. Lacombe, |Hamlin Copr. | News Co. | | | C. & D. 29 | Specific license for limited use of illustrations| | enforced, 236 | ----+----------------------+--------------+--------------+------------------ 1898|Mallory _v._ Mackaye |U. S. C. C. |J. Wheeler, |86 F. R. 122 | Employer entitled to copyright in dramatic works | | written under salary, 188 | ----+----------------------+--------------+--------------+------------------ 1899|Mackaye _v._ Mallory |U. S. C. C. |J. Wallace, |92 F. R. 749 | | App. | | | "Modifying" Mallory _v._ Mackaye, but upholding | | right of employer | ----+----------------------+--------------+--------------+------------------ 1899|Bennett _v._ Carr |U. S. C. C. |J. Thomas, |96 F. R. 213 | | App. | | | Copyright invalidated (under old law) by failure | | to deposit written description of picture, 236 | ----+----------------------+--------------+--------------+------------------ 1899|Boosey _v._ Whight |Ct. App. |J. Lindley, |[1900] 1 Ch. 122 | Perforated music roll not "copy" of sheet music, | | 208; marginal directions neither music nor | | literary composition, 208 | ----+----------------------+--------------+--------------+------------------ 1899|Brady _v._ Daly |U. S. Sup. Ct.|J. Peckham, |175 U. S. 148 | Single situation protected as integral part of | | drama, 191; damages, not penalty, under copyright| | statute, 272 | ----+----------------------+--------------+--------------+------------------ 1899|Daly _v._ Walrath |N. Y. App. |J. Bartlett, |40 App. Div. 220 | | Div. | | | Prior printing abroad forfeits American dramatic | | rights, 181 | ----+----------------------+--------------+--------------+------------------ 1899|Green _v._ Irish |Irish Ct. of |L. J. |[1899] 1 Ir. | Independent | App. | Fitz-Gibbon,| Rep. 386 | Newspaper liable for infringement, though without| | knowledge, copyr. illustration printed as | | advertisement, 236, 253 | ----+----------------------+--------------+--------------+------------------ 1899|Holmes _v._ Hurst |U. S. Sup. Ct.|J. Brown, |174 U. S. 82 | Copyright protects intellectual production of | | author, not merely the particular form. "Book" | | not confined to bound volume, 67 | ----+----------------------+--------------+--------------+------------------ 1899|McDonald _v._ Hearst |U. S. C. C. |J. De Haven, |95 F. R. 656 | Employer cannot be held to penal responsibility | | for act of agent, 271 | ----+----------------------+--------------+--------------+------------------ 1899|Maxwell _v._ Goodwin |U. S. C. C. |J. Seaman, |93 F. R. 665 | Playright in unpublished work, inherent under | | common law, 187 | ----+----------------------+--------------+--------------+------------------ 1899|Murphy _v._ Christian |N. Y. App. |J. Cullen, |38 N. Y. App. Div. | Press Assoc. | Div. | | 426 | Decision against restraint of trade not | | applicable to copyright monopolies, 50 | ----+----------------------+--------------+--------------+------------------ 1900|U. S. act. Hawaii and Porto Rico protection ----+----------------------+--------------+--------------+------------------ 1900|Bennett _v._ Boston |U. S. C. C. |J. Colt, |101 F. R. 445 | Traveler Co. | App. | | | Suit must be brought under general copyright of | | newspaper, when portion is not specifically | | copyrighted, 272 | ----+----------------------+--------------+--------------+------------------ 1900|Dielman _v._ White |U. S. C. C. |J. Lowell, |102 F. R. 892 | Contract with U. S. Govt. failed to reserve | | copyright on designs, 234 | ----+----------------------+--------------+--------------+------------------ 1900|Maloney _v._ Foote |U. S. C. C. |J. Pardee, |101 F. R. 264 | No infringement by acts before copyrighting, 274 | ----+----------------------+--------------+--------------+------------------ 1900|Monarch Bk. Co. |U. S. C. C. |J. Grosscup, |Hamlin Copr. | _v._ Neil | | | C. & D. 30 | Copies of copyrighted modifications of | | non-copyright pictures enjoined, 244 | ----+----------------------+--------------+--------------+------------------ 1900|Snow _v._ Laird |U. S. C. C. |J. Woods, |98 F. R. 813 | | App. | | | Slight alteration on non-copyrighted photograph | | does not justify copyright, 245 | ----+----------------------+--------------+--------------+------------------ 1900|Walter _v._ Lane |House of Lords| |[1900] A. C. 539 | Reports of Rosebery's speeches--no literary merit| | or labor need be shown to secure copyright, 68 | ----+----------------------+--------------+--------------+------------------ 1900|Falk _v._ Curtis Pub. |U. S. C. C. |J. Dallas, |100 F. R. 77 | Co. | | | | "Person" includes partnerships and corporations, | | 273 | ----+----------------------+--------------+--------------+------------------ 1901|Falk _v._ Curtis Pub. |U. S. C. C. |J. Buffington,|107 F. R. 126 | Co. |App. | | | Suit for penalties cannot precede forfeiture, | | 273.--Affirming Falk _v._ Curtis Pub. Co. | ----+----------------------+--------------+--------------+------------------ 1901|Child _v._ N. Y. |U. S. C. C. |J. Hazel, |110 F. R. 527 | Times Co. | | | | No penalty where copies are not literally "found | | in possession," 272 | ----+----------------------+--------------+--------------+------------------ 1901|Doan, _et al._ _v._ |U. S. C. C. |J. Jenkins, |105 F. R. 772 | Amer. Bk. Co. | App. | | | Rebound second-hand copies no infringement, but | | must be distinctly marked, 263 | ----+----------------------+--------------+--------------+------------------ 1901|Marshall _v._ Bull |Ct. App. |L. J. Collins,|85 L. T. 77 | Illustrations protected as part of book, 238; | | sale of electrotypes does not transfer | | copyright, 238 | ----+----------------------+--------------+--------------+------------------ 1901|Neufeld _v._ Chapman |King's Bench |J. Walton, |_Times_ O. 31, '01 | "All copies sold" includes periodical | | publication, 448 | ----+----------------------+--------------+--------------+------------------ 1901|Nicholls _v._ Parker |King's Bench |J. Wright, |17 T. L. R. 482 | Specific license for use of illustration in | | specified periodical upheld, despite "custom of | | the trade," 236 | ----+----------------------+--------------+--------------+------------------ 1901|Stern _v._ Rosey |D. C. C. App. |J. Shepard, |17 App. Dist. | | | | Col. 562 | Mechanical reproduction of copyrighted songs not | | preventable, 205 | ----+----------------------+--------------+--------------+------------------ 1901|Trengrouse _v._ "Sol" |Chancery |C. J. |_Times_ S. 26, '01 | Syndicate | | Alverstone, | | Whole work infringement though less than a page | | pirated, 254 | ----+----------------------+--------------+--------------+------------------ 1901|Western Union _v._ |U. S. Sup. Ct.|J. Brewer, |181 U. S. 92 | Call Pub. Co. | | | | When common law in states is in conflict, U. S. | | courts will enforce that of England, 44 | ----+----------------------+--------------+--------------+------------------ 1901|Hegeman _v._ Springer |U. S. C. C. |J. Wheeler, |110 F. R. 374 | | App. | | | Seizure without prior demand authorized, 274 | ----+----------------------+--------------+--------------+------------------ 1902|Musical (summary proceedings) copyright act |2 Edw. VII, c. 15 ----+----------------------+--------------+--------------+------------------ 1902|Amer. Press Assoc. |U. S. C. C. |J. Jenkins, |120 F. R. 766 | _v._ Daily Story | App. | | | Pub. Co. | | | | Innocent copying from reprint lacking copyright | | notice an infringement, 253 | ----+----------------------+--------------+--------------+------------------ 1902|Britain _v._ Hanks |King's Bench |J. Wright, |86 L. T. 765 | Toy soldiers, artistically modeled, copyrightable| | as sculpture, 247 | ----+----------------------+--------------+--------------+------------------ 1902|Fraser _v._ Yack |U. S. C. C. |J. Jenkins, |116 F. R. 285 | | App. | | | "Little Minister"--Foreigner, prior to 1891, | | could transfer advance sheets only, not right to | | copyright, 110 | ----+----------------------+--------------+--------------+------------------ 1902|Herne _v._ Liebler |N. Y. App. |J. Ingraham, |73 App. Div. | | Div. | | 194 | Sub-license under limited lease of unpublished | | drama prevented under common law, 187 | ----+----------------------+--------------+--------------+------------------ 1902|Mifflin _v._ Dutton |U. S. Sup. Ct.|J. Brown, |174 U. S. 82 | In joint authorship duplicate copyrights under | | different names not permissible, 102 | ----+----------------------+--------------+--------------+------------------ 1902|National Tel. News Co.|U. S. C. C. |J. Grosscup, |119 F. R. 294 | _v._ Western Union | App. | | | News on ticker tape not copyrightable but unfair | | use enjoinable, 89 | ----+----------------------+--------------+--------------+------------------ 1902|Patterson _v._ Ogilvie|U. S. C. C. |J. Lacombe, |119 F. R. 451 | Variance of sub-title immaterial, 192; damages | | not barred by limitation as penalties, 273 | ----+----------------------+--------------+--------------+------------------ 1903|Graves _v._ Gorrie |Privy Council |Ld. Lindley, |89 L. T. 111 | Fine arts copyright act, 1862, does not protect | | outside United Kingdom, 246 | ----+----------------------+--------------+--------------+------------------ 1903|Hegeman _v._ Springer |U. S. Sup. Ct.|_Per curiam_, |189 U. S. 505 | Affirming Hegeman _v._ Springer | ----+----------------------+--------------+--------------+------------------ 1903|Barnes _v._ Miner |U. S. C. C. |J. Ray, |122 F. R. 480 | Combination of songs, costume and cinematograph | | not a dramatic composition, 175 | ----+----------------------+--------------+--------------+------------------ 1903|Bleistein _v._ |U. S. Sup. Ct.|J. Holmes, |188 U. S. 239 | Donaldson | | | | Copyright can be entered in trading name instead | | of legal name, 102; circus posters protected--"A | | picture is none the less a subject of copyright | | that it is used for an advertisement," 237 | ----+----------------------+--------------+--------------+------------------ 1903|Bloom _v._ Nixon |U. S. C. C. |J. McPherson, |125 F. R. 977 | Parody, including quotation, not infringement, | | 190 | ----+----------------------+--------------+--------------+------------------ 1903|Champney _v._ Haag |U. S. C. C. |J. McPherson, |121 F. R. 944 | Photograph from a photograph construed as | | infringement of photograph, and not of original | | painting, 243, 274 | ----+----------------------+--------------+--------------+------------------ 1903|Cleland _v._ Thayer |U. S. C. C. |J. Caldwell, |121 F. R. 71 | | App. | | | Original photograph of uncopyrighted or | | uncopyrightable subject protected, 241 | ----+----------------------+--------------+--------------+------------------ 1903|Dodge _v._ Allied Arts|N. Y. Sup. Ct.|J. McCall, |Hamlin Copr. | | | | C. & D. 115 | Artist can prevent alterations of paintings done | | on commission, 245 | ----+----------------------+--------------+--------------+------------------ 1903|Edison _v._ Lubin |U. S. C. C. |J. Buffington,|122 F. R. 240 | | App. | | | Entire moving picture film one photograph | | protected by single notice, 242 | ----+----------------------+--------------+--------------+------------------ 1903|Frohman _v._ Weber |N. Y. Sup. Ct.|J. Clarke, |Hamlin Copr. | | | | C. & D. 151 | Use of names of characters in plays not | | infringement, 192 | ----+----------------------+--------------+--------------+------------------ 1903|Kipling _v._ Putnam |U. S. C. C. |J. Coxe, |120 F. R. 631 | | App. | | | Changed binding of copyright work permissible, | | 263; elephant's head design not distinctive | | trade-mark, 263; no similarity to constitute | | unfair competition, 263 | ----+----------------------+--------------+--------------+------------------ 1903|Lawrence & Bullen |House of Lords| |[1904] L. R. App. | _v._ Aflalo | | | C. 17 | Proprietor of encyclopædia "stood in the shoes" | | of writers as copyright proprietor, 99 | ----+----------------------+--------------+--------------+------------------ 1903|Lorimer _v._ Boston |Mass. Sup. Ct.|J. Morton, |_Pub. Week._ | Herald | | | 63:1386 | Burlesqued title in newspaper articles not | | enjoinable, 264 | ----+----------------------+--------------+--------------+------------------ 1903|Moore _v._ Edwardes |King's Bench |L. C. J. |_Times_ Mr. 3, '03 | | | Alverstone, | | Use of scenario from rejected ms. for | | unauthorised work punished, 176 | ----+----------------------+--------------+--------------+------------------ 1903|Nethersole _v._ Bell |Chancery |J. Farwell, |_Times_ Jl. 4, 31, | Rival dramatisation as modified from other | '03 | version enjoined, 174 | ----+----------------------+--------------+--------------+------------------ 1903|Rinehart _v._ Smith |U. S. C. C. |J. McPherson, |121 F. R. 148 | Replevin not the proper form of copyright suit, | | 273 | ----+----------------------+--------------+--------------+------------------ 1903|Stone _v._ Long, |King's Bench |Master Chitty,|Copr. Cas. | Publisher responsible for loss of ms. by | '01-'04, 66 | employee's negligence, 442 | ----+----------------------+--------------+--------------+------------------ 1903|Thompson Co. _v._ |U. S. C. C. |J. Coxe, |122 F. R. 922 | Amer. Law Book Co. | App. | | | Use of list of cases, made from copyright digest,| | as guide to reports not infringement, 258; | | "equity will not protect a pirate from | | infringements of his piratical work," 258 | ----+----------------------+--------------+--------------+------------------ 1903|Victor Talking |U. S. C. C. |J. Baker, |123 F. R. 424 | Mach. Co. _v._ The Fair|App. | | Patent as a monopoly, 50 | ----+----------------------+--------------+--------------+------------------ 1903|Wagner _v._ Conried |U. S. C. C. |J. Lacombe, |125 F. R. 798 | Previous printing abroad forfeits American | | playright in music, 181 | ----+----------------------+--------------+--------------+------------------ 1903|Wright _v._ Eisle |N. Y. App. |J. Woodward, |86 App. Div. 356 | | Div. | | | Filing of architectural plans in public office | | constitutes publication, 242 | ----+----------------------+--------------+--------------+------------------ 1904|U. S. act. Protection of works, Louisiana Purchase Exposition ----+----------------------+--------------+--------------+------------------ 1904|Bisel _v._ Welsh |U. S. C. C. |J. Holland, |131 F. R. 564 | Repetition of errors evidence of author's | | infringement of his own earlier work, 257 | ----+----------------------+--------------+--------------+------------------ 1904|Encyclopædia |U. S. C. C. |J. Lacombe, |_Pub. Week._ | Brittanica Co. _v._ | | | 55:1458 | Tribune Assoc. | | | | Condensations of copyright articles from | | cyclopædia enjoined, 261 | ----+----------------------+--------------+--------------+------------------ 1904|Gannet _v._ Rupert |U. S. C. C. |J. Coxe, |_Pub. Week._ | | App. | | 55:69 | "Comfort" as title of periodical protected as | | common law trade-mark, 84; court should arrest | | pirate before he makes off with plunder, 274 | ----+----------------------+--------------+--------------+------------------ 1904|Straus _v._ Amer. |N. Y. Ct. App.|C. J. Parker, |177 N. Y. 473 | Pub. Assoc. | | | | Agreements to restrict prices legal on copyright | | books; contrary to statute on non-copyright | | books, 57 | ----+----------------------+--------------+--------------+------------------ 1905|U. S. act. _Ad interim_ protection ----+----------------------+--------------+--------------+------------------ 1905|U. S. trade-mark act ----+----------------------+--------------+--------------+------------------ 1905|Fraser _v._ Edwardes |King's Bench |J. Darling, |_Times_ Mr. 23-30, | Use of scenario from rejected ms. for | '05 | unauthorized work punished, 176 | ----+----------------------+--------------+--------------+------------------ 1905|Harper _v._ Donohue |U. S. C. C. |J. Sanborn, |144 F. R. 491 | Analysis of author's rights, 47; omission of | | notice on foreign-made edition does not vitiate | | Amer. copyright, 133 | ----+----------------------+--------------+--------------+------------------ 1905|Hills _v._ Hoover |U. S. C. C. |J. Holland, |136 F. R. 701 | Additional words in copyright notice harmless | | superfluity, 128 | ----+----------------------+--------------+--------------+------------------ 1905|Lucas _v._ Moncrieff |Chancery |J. Warrington,|21 T. L. R. 683 | Publishing agreement released by bankruptcy of | | publisher, 443 | ----+----------------------+--------------+--------------+------------------ 1905|Sampson & Murdock |U. S. C. C. |J. Putnam, |140 F. R. 539 | Co. _v._ Seaver | App. | | | Radford | | | | Verification from rival directory beyond fair | | use, 255 | ----+----------------------+--------------+--------------+------------------ 1905|Slingsby _v._ Bradford|Chancery |J. Warrington,|[1905] W. N. 122 | Co. | | | | Copying of fraudulent material not punishable in | | equity, 258 | ----+----------------------+--------------+--------------+------------------ 1906|Musical copyright act |6 Edw. VII; c. 36 ----+----------------------+--------------+--------------+------------------ 1906|U. S. trade-mark act ----+----------------------+--------------+--------------+------------------ 1906|Burk _v._ Johnson |U. S. C. C. |J. Adams, |146 F. R. 209 | | App. | | | Copyright cannot protect schemes or method of | | doing business, 61 | ----+----------------------+--------------+--------------+------------------ 1906|Davis _v._ Benjamin |Chancery |J. Eady, L. R.|[1906] 2 Ch. | Sheet of advertising illustrations held a book, 73| 491 ----+----------------------+--------------+--------------+------------------ 1906|Donohue _v._ Harper |U. S. C. C. |_Per curiam_, |146 F. R. 1023 | | App. | | | Affirming decision in Harper _v._ Donohue | ----+----------------------+--------------+--------------+------------------ 1906|Hartford Printing |U. S. C. C. |J. Platt, |146 F. R. 332; | Co. _v._ Hartford | | | 148 F. R. 470 | Directory Co. | | | | Gross receipts less cost awarded as damages, for | | wholesale copying, 275 | ----+----------------------+--------------+--------------+------------------ 1906|Macmillan _v._ Dent |Ct. App. |J. Vaughan, |[1907] 1 Ch. 107 | Charles Lamb letters--copyright separate from | | material object, 92 | ----+----------------------+--------------+--------------+------------------ 1906|Rex _v._ Willets | |Com. Serj., |_Times_ Ja. 20, '06 | Criminal sentences in conspiracy of cheap music | | pirates, 277 | ----+----------------------+--------------+--------------+------------------ 1906|Ward, Lock & Co. _v._ |Chancery |J. Kekewich, |L. R. [1906] 2 | Long | | | Ch. 550 | Agreement to write a book assignable after | | completion of book, 441 | ----+----------------------+--------------+--------------+------------------ 1906|White-Smith _v._ |U. S. C. C. |_Per curiam_, |147 F. R. 226 | Apollo | App. | | | Perforated roll not copy in fact of staff | | notation, 204 | ----+----------------------+--------------+--------------+------------------ 1906|Wooster _v._ Crane |U. S. C. C. |J. Van |147 F. R. 515 | | App. | Devanter, | | Author restrained from selling modification of | | copyright work previously assigned, 442 | ----+----------------------+--------------+--------------+------------------ 1907|Patents and designs act |7 Edw. VII. c. 29 ----+----------------------+--------------+--------------+------------------ 1907|American Tobacco Co. |U. S. Sup. Ct.|J. Day, |207 U. S. 284 | _v._ Werckmeister | | | | Exhibition with restriction as to copying, not | | publication, 232, 235 | ----+----------------------+--------------+--------------+------------------ 1907|Bracken _v._ Rosenthal|U. S. C. C. |J. Kohlsaat, |151 F. R. 136 | Photograph infringes copyright in statuary, 243 | ----+----------------------+--------------+--------------+------------------ 1907|Dutton _v._ Cupples |N. Y. App. |J. Scott, |_Pub. Week._ | & Leon | Div. | | 71:630 | Imitation of style of series unfair competition, | | 263 | ----+----------------------+--------------+--------------+------------------ 1907|Jude's "Liedertafel" |Ct. App. |C. J. |L. R. [1907] | case | | Alverstone, | 1 Ch. 651 | Assignment expunged from record, 447 | ----+----------------------+--------------+--------------+------------------ 1907|Philip _v._ Pennell |Chancery |J. Kekewich, |L. R. [1907] 2 | | | | Ch. 577 | Publication permitted of biographical information| | from receivers of letters, 92 | ----+----------------------+--------------+--------------+------------------ 1907|Merriam _v._ Ogilvie |U. S. C. C. |J. Colt, |149 F. R. 858 | Use of name "Webster" not restrainable except | | where public is misled, 261 | ----+----------------------+--------------+--------------+------------------ 1908|Merriam _v._ Ogilvie |U. S. C. C. |J. Aldrich, |159 F. R. 638 | | App. | | | Affirming Merriam _v._ Ogilvie | ----+----------------------+--------------+--------------+------------------ 1908|White-Smith _v._ |U. S. Sup. Ct.|J. Day, |209 U. S. 1 | Apollo | | | | Records not copies or publications of copyright | | music, 54, 204. Affirming White-Smith _v._ Apollo| ----+----------------------+--------------+--------------+------------------ 1908|Bamforth _v._ Douglas |U. S. C. C. |J. McPherson, |158 F. R. 355 | Post Card Co. | | | | Unfair competition not restrainable if | | copyrightable work is not copyrighted, 264 | ----+----------------------+--------------+--------------+------------------ 1908|Bobbs-Merrill Co. |U. S. Sup. Ct.|J. Day, |210 U. S. 339 | _v._ Straus | | | | Restriction of price not enforceable in | | connection with copyright notice, 55, 57 | ----+----------------------+--------------+--------------+------------------ 1908|Clinical Obstetrics, |Chancery |J. Warrington,|Copr. Cas. | _in re_ | | | '05-'10, 176 | "Exclusive right of publication" a license, not | | assignment, 447; assignment record expunged, 447.| ----+----------------------+--------------+--------------+------------------ 1908|Globe Newspaper |U. S. Sup. Ct.|J. Day, |210 U. S. 356 | Co. _v._ Walker | | | | No damages outside statutory protection where no | | copies were found in possession, 272 | ----+----------------------+--------------+--------------+------------------ 1908|Jones _v._ Amer. Law |N. Y. App. |J. Houghton, |125 App. Div. 519 | Bk. Co. | Div. | | | Denying right of author to have name appended to | | cyclopædic contribution, 100 | ----+----------------------+--------------+--------------+------------------ 1908|Karno _v._ Pathé |King's Bench |J. Jelf, |99 L. T. 114 | Frères | | | | Moving pictures not infringement, 177 | ----+----------------------+--------------+--------------+------------------ 1908|Landa _v._ Greenberg |Chancery |J. Eve, |24 T. L. R. 441 | _Nom de plume_ of settled use protected outside | | copyright or trade-mark, 99 | ----+----------------------+--------------+--------------+------------------ 1908|Mansell _v._ Valley |Ct. App. |Cozens-Hardy, |L. R. [1908] 2 | Printing Co. | | M. R., | Ch. 441 | Common law concurrent with statutory protection | | of unpublished works, 61 | ----+----------------------+--------------+--------------+------------------ 1908|Royal Sales Co. _v._ |U. S. C. C. |J. Ward, |164 F. R. 207 | Gaynor | | | | Monogram not copyrightable, 70 | ----+----------------------+--------------+--------------+------------------ 1908|Sarpy _v._ Holland |Ct. App. |Cozens-Hardy, |L. R. [1908] 2 | | | M. R., | Ch. 198 | Copyright reservation in foreign language | | sufficing, 313; no formalities requisite under | | international copyright, 313 | ----+----------------------+--------------+--------------+------------------ 1908|Scribner _v._ Straus |U. S. Sup. Ct.|J. Day, |210 U. S. 352 | Agreement to restrict prices not proven by notice| | on bills, etc., 55 | ----+----------------------+--------------+--------------+------------------ 1908|Share Certificate |Div. Ct. |J. Bigham, |Copr. Cas. | Book, _in re_ | | | '05-'10, 173 | False entry expunged from registry, 150 | ----+----------------------+--------------+--------------+------------------ 1908|Straus _v._ American |N. Y. App. |J. Gray, |127 App. D. 936 | Publishers' | Div. | | | Association | | | | Agreements to restrict price legal on copyright | | books, 57; dissenting opinion, 57 | ----+----------------------+--------------+--------------+------------------ 1908|Tate _v._ Fullbrook |Ct. App. |L. J. Vaughan |L. R. [1908] 1 | | | Williams, | K. B. 821 | Writer of dialogue sole author of musical sketch | | in England, 176 | ----+----------------------+--------------+--------------+------------------ 1908|United Dictionary |U. S. Sup. Ct.|J. Holmes, |208 U. S. 260 | Co. _v._ Merriam | | | | Omission of notice on foreign-made edition sold | | only for use there does not vitiate Amer. | | copyright, 134 | ----+----------------------+--------------+--------------+------------------ 1908|Dam _v._ Kirke La |U. S. C. C. |J. Hazel, |166 F. R. 589 | Shelle Co. | | | | Reassignment to author of copyright in periodical| | contribution, 101; right of dramatization | | included in copyright of story, 171; full profits| | awarded as damages, 171 | ----+----------------------+--------------+--------------+------------------ 1908|Harper _v._ Kalem |U. S. C. C. |J. Lacombe, | | Copyright notice in book protects illustrations | | against moving picture reproduction, 77 | ----+----------------------+--------------+--------------+------------------ 1909|U. S. Copyright code ----+----------------------+--------------+--------------+------------------ 1909|Banks Law Pub. Co. |U. S. C. C. |_Per curiam_, |169 F. R. 386 | _v._ Lawyers | App. | | | Co-operative Pub. Co. | | | Affirming that arrangement of cases in sequence, | | pagination, etc., are not protectable details, | | 259 | ----+----------------------+--------------+--------------+------------------ 1909|Bong _v._ Campbell |U. S. Sup. Ct.|J. McKenna, |214 U. S. 236 | Art Co. | | | | Citizen of an unproclaimed country cannot | | indirectly obtain American copyright, 110 | ----+----------------------+--------------+--------------+------------------ 1909|Bosselman _v._ |U. S. C. C. |J. Ward, |174 F. R. 622 | Richardson | App. | | | Copyright claimant other than author must prove | | his claims, 107 | ----+----------------------+--------------+--------------+------------------ 1909|Caliga _v._ |U. S. Sup. Ct.|J. Day, |215 U. S. 182 | Inter-Ocean Newsp. Co. | | | Re-copyright on finishing picture invalid, 231 | ----+----------------------+--------------+--------------+------------------ 1909|Chicago Tribune _v._ |U. S. C. C. |J. Grosscup, |_Pub. Week._ | Ill. Printing & Pub. Co. | | 76: 643, 957 | Peary letters--copyright in newspaper letter as | | book upheld, 103 | ----+----------------------+--------------+--------------+------------------ 1909|N. Y. Times _v._ |U. S. C. C. |J. Hand, |_Pub. Week._ | Press Pub. Co. _et al._ | | 76: 643, 957 | Peary letters--agreement for newspaper letters | | did not authorize copyright as book, 103 | ----+----------------------+--------------+--------------+------------------ 1909|Consolidated Gas Co. |U. S. Sup. Ct.|J. Peckham, |212 U. S. 19 | State has sovereign power to limit prices--in | | case of public franchise corporation, 207 | ----+----------------------+--------------+--------------+------------------ 1909|Freeman _v._ Trade |U. S. C. C. |J. Donworth, |173 F. R. 419 | Register | | | | Copyright notice on editorial page invalid, 131 | ----+----------------------+--------------+--------------+------------------ 1909|Frohman _v._ Ferris |Ill. Sup. Ct. |J. Farmer, |238 Ill. Rep. 430 | Performance of play not publication, 181 | ----+----------------------+--------------+--------------+------------------ 1909|Glaser _v._ St. Elmo |U. S. C. C. |J. Holt, |175 F. R. 276 | Co. | | | | Title of novel, out of copyright, not protectable| | in drama, 192 | ----+----------------------+--------------+--------------+------------------ 1909|Green _v._ Luby |U. S. C. C. |J. Noyes, |177 F. R. 287 | Error in classification does not invalidate | | copyright, 136 | ----+----------------------+--------------+--------------+------------------ 1909|Harper _v._ Kalem |U. S. C. C. |J. Ward, |169 F. R. 61 | | App. | | | Moving pictures may infringe book copyright, 176,| | 242; both speech and action not necessary in | | dramatic performances, 176; illustrations as such| | do not infringe book copyright, 237 | ----+----------------------+--------------+--------------+------------------ 1909|Heinemann _v._ Smart |Chancery |J. Parker, |_Times_, Jl. 15, | Set Pub. Co. | | | '09 | Innocent publisher responsible for acts beyond | | authority given to literary agent, 437 | ----+----------------------+--------------+--------------+------------------ 1909|Hervieu _v._ Ogilvie |U. S. C. C. |J. Martin, |169 F. R. 978 | Printed drama not subject to manufacturing | | provisions as "book," 155, 168 | ----+----------------------+--------------+--------------+------------------ 1909|Hunter _v._ Clifford |West. Co. Ct. |J. Lush, |_Times_ N. 12. '09 | Right to copyright lapsed on work of art sold | | without registration, 247 | ----+----------------------+--------------+--------------+------------------ 1909|Karno _v._ Pathé |Ct. App. |L. J. Vaughan |100 L. T. 260 | Frères | | Williams, | | Exhibitor, not manufacturer of film, responsible | | party, 177 | ----+----------------------+--------------+--------------+------------------ 1909|Saake _v._ Lederer |U. S. C. C. |J. Buffington,|174 F. R. 135 | | App. | | | License to perform does not imply authority to | | copyright, 107 | ----+----------------------+--------------+--------------+------------------ 1909|Scholz _v._ Amasis |Ct. App. |L. C. J. |_Times_ My. 19, '09 | | | Farwell, | | Only substantial copying of written dialogue | | infringes drama in England, 176 | ----+----------------------+--------------+--------------+------------------ 1910|Dam _v._ Kirke La |U. S. C. C. |J. Noyes, |175 F. R. 902 | Shelle Co. | App. | | | Following decision in lower court | ----+----------------------+--------------+--------------+------------------ 1910|De Jonge _v._ Breuker |U. S. C. C. |J. McPherson, |182 F. R. 150 | & Kessler | | | | Artistic designs for cover paper copyrightable, | | 237; separable designs must have separate | | copyright notices, 242; subject cannot be | | protected both under copyright and trade-mark | | acts, 237 | ----+----------------------+--------------+--------------+------------------ 1910|Eliot & Collier _v._ |N. Y. Sup. Ct.|J. Newburger, |120 N. Y. | Jones, _et al._ | | | Supp. 989 | Use of "Dr. Eliot's five-foot shelf" prohibited | | as involving deception, 85 | ----+----------------------+--------------+--------------+------------------ 1910|Ellis _v._ Hurst |N. Y. Sup. Ct.|J. Greenbaum, |128 N. Y. | Use of an author's real name on pseudonymous | Supp. 144 | non-copyright works not restrainable, 98 | ----+----------------------+--------------+--------------+------------------ 1910|Gilbert _v._ Workman |Chancery |J. Neville, |_Times_ Ja. 19, '10 | Interpolation of song without consent of author | | of opera enjoined, 100 | ----+----------------------+--------------+--------------+------------------ 1910|Hein _v._ Harris |U. S. C. C. |J. Hand, |175 F. R. 875 | Musical copyright infringed by transposition, 170| | Affirmed in same year by U. S. C. C. App. | ----+----------------------+--------------+--------------+------------------ 1910|Larby _v._ Love |King's Bench |J. Bucknill, |Copr. Cas. | Upholds prohibition against underselling in bill | '05-'10, 291 | of sale, 57 | ----+----------------------+--------------+--------------+------------------ 1910|Monckton _v._ |Chancery |J. Joyce, |_Times_ D. 6, '10 | Gramophone Co. | | | | Common law cannot protect after publication, 62 | ----+----------------------+--------------+--------------+------------------ 1910|Park & Pollard _v._ |U. S. C. C. |J. Philips, |181 F. R. 431 | Kellerstrass | | | | Whole work enjoined where infringing parts were | | inseparable, 258 | ----+----------------------+--------------+--------------+------------------ 1910|Press Assoc. _v._ |Chancery |J. Warrington,|_Times_ D. 8, '10 | Reporting Agency | | | | Election returns protected against "unfair | | competition," 89 | ----+----------------------+--------------+--------------+------------------ 1910|Record & Guide Co. |U. S. C. C. |J. McPherson, |175 F. R. 156 | _v._ Bromley | | | | Omission of date vitiates copyright notice though| | given on same page, 128; substitution of name in | | copyright notice without authority of law voids | | copyright, 136 | ----+----------------------+--------------+--------------+------------------ 1910|Rex _v._ Bokenham |Cent. Crim. |Com. Serj., |_Times_ Jl. 22, | | Ct. | | '10 | Piracy from surreptitiously obtained copies of | | poems punished by imprisonment, 277 | ----+----------------------+--------------+--------------+------------------ 1910|Stern _v._ Remick |U. S. C. C. |J. Hand, |175 F. R. 282 | Sale of single copy held to constitute | | publication, 127; use of Roman for Arabic | | numerals in copyright notice immaterial, 130 | ----+----------------------+--------------+--------------+------------------ 1910|West Pub. Co. _v._ |U. S. C. C. |J. Ward, |176 F. R. 833 | Thompson Co. | App. | | | One copyright notice suffices to cover earlier | | copyrights of parts, 132; list made to run down | | cases permissible, but extensive copying | | from digest an infringement, 259 | ----+----------------------+--------------+--------------+------------------ 1910|White-Smith _v._ Goff |U. S. C. C. |J. Brown, |180 F. R. 256 | Renewal personal to author or heirs only, except | | possibly in case of work assigned before | | publication, 116 | ----+----------------------+--------------+--------------+------------------ 1911|Copyright act |1 & 2 Geo. V c. 46 ----+----------------------+--------------+--------------+------------------ 1911|Shepard _v._ Taylor |U. S. C. C. |J. Hazel, |185 F. R. 941 | Common errors _prima facie_ proof of | | infringement, 258 | ----+----------------------+--------------+--------------+------------------ 1911|White _v._ Bender |U. S. C. C. |J. Ray, |185 F. R. 921 | Citations may be utilized for verification, but | | bodily transfer is infringement, 257 | ----+----------------------+--------------+--------------+------------------ Leading references are |in black face| figures. References to statutes are designated by § (without prefix referring to the American code, with preceding E referring to the new British code, C to Canadian measure and Au. to Australian code), International Copyright Union conventions by I, and Pan American conventions by P; those to U. S. Copyright Office Rules and Regulations are preceded by R. The page numeration also indicates character of reference, pp. 1-41 covering historical portion; pp. 42-310, specific subject chapters, chiefly American and British; pp. 311-372, international copyright; pp. 373-429, copyright in other countries; pp. 430-462, business relations and literature. Law cases are followed by date, serving as reference to chronological table. INDEX Abandonment, 121. Abernethy _v._ Hutchinson (1825), 90. Abridgment, 64, |80|, 82, 145, 199, |255|, 392; § 6, 468; R. § 18, 500; Au. § 13, 584; § 28, 587; § 29, 588; I. 614. Account books, noncopr., 71; R. § 5, 496. Accounts. _See_ Damages. Acrobatic tricks noncopr., 163; R. § 8, 497. Actions. _See_ Suits. Acts of Parliament, Crown copr., 123. Ad interim copr. _See_ Interim copr. Adamnan, 9. Adams, G. E., 362. Adaptation, 12, 30, 42, 45, 64, 113, 163, 170, 197, 199, 210, |243|, 319, 326, 328, 392, 403, 405; § 1 (b), 465; § 6, 468; R. § 10, 498; Au. § 13, 584; I. 604, 614, 615; P. 634, 651. Additions, |75|, 77, 174; P. 651; by publisher, 100. _See also_ Editions, new. Addresses. _See_ Oral work. Administrator, 95, 102, |104|; § 8, 469; R. § 2, 495; C. § 2, 555. _See also_ Heir. Advertisements, 69, 71, |73|, 236, |237|; R. § 5, 496; C. § 14, 564. Advertising labels, 223; novelties, 72, 223, 224; R. § 12, 498; § 16, |499|. Æolian Co., 204. Affidavit of manufacture, 88, 136, 138, 139, 154, |158|, 167, 229, 303, 397, |511|; § 16, 472; § 17, 472; § 55, 484; R. § 32, 504; § 33, 505; § 34, 506; § 35, 506; false, 121, 126, |144|, 158; § 17, 472. Agent, 286; literary, 435. _See also_ Publisher. Agreements. _See_ Contract. Alaska, 39, 108, 270; § 34, 481. Albert, Prince. _See_ Prince. Aldus, 13, 14. Algiers, 400, 418. Alien. _See_ Foreign author. Almanacs, 21, 38. Alterations, 75, |100|, 101, 174, 199, |243|, 252, 254, 414, 433, 438; E. § 19 (2), 530, (7) 532; P. 651. _See also_ Editions, new. America. _See_ United States, Canada, Latin America, Pan American, names of countries, etc. Amer. (Authors) Copr. League, 118, 156, 214, 356, 358, 359, 361, 367, 370, 430, 454. Amer. Bar Assoc., 46, 371. Amer. Book Co. _v._ Doan (1901), 263. Amer. Book Co., importation case, 285. Amer. Dramatists Club, 194. Amer. Press Assoc. _v._ Daily Story Pub. Co. (1902), 253. Amer. Publishers' Assoc., 55. Amer. Publishers' Copr. League, 360, 455. Amer. Tobacco Co. _See_ Werckmeister. Amsterdam Literary Congress (1883), 314. Animal shows, noncopr., 163; R. § 8, 497. Anne, Statute of (1710), 6, 23, |24|, 28, 34, 35, 108, 125, 265, 373. Annotations, 69. Annulment of copr. entry, 121. Anonymous and pseudonymous works, 87, 98, |101|, 113, 115, 120, 122, 124, 129, 137, 319, 328, 333, 511; § 23, 474; R. § 24, 501; § 30, 503; C. § 24, 568; in other countries, 151, 319, 328, 329, 403-29; I. 610, 617; P. 634, 650. Antwerp literary congress (1885), 314. Appeal in copr. cases, 36, 269, 272, 404, 434; § 38, 481; E. § 12, 525, 552; C. § 6 (2), 560. Appleton, Nathan, 355. Appleton proposal (1872), 350. Appleton, W. H., 360. Application, 16, 63, 95, 96, 120, |136-39|, 389; § 5, 467; R. § 29, 502; § 30, 503; § 31, 503; § 38, 507; § 39, 507; C. § 7 (5) 561; § 25, 568; forms, |139|, 168, 227, 229, |511|; R. § 31, 503; for renewal and extension, 115, 116; § 23, 474; § 24, 475; R. § 46, 509; P. 638. Appraisal of copyrights, 452. Appraisers, Bd. of Gen., 292. Apsley, Ld. Chancellor, 80. Archbold _v._ Sweet (1832), 443. Architectural drawings, 224, 243, 248-50, 318, 326, 332, 336; R. § 14, 498; I. 603, 604; P. 634, 637, 649. Architecture, works of, 33, |242|, 248-50, 277, 321, 326, 327, 375, 376, 404, 415, 416; E. § 1, § 2, 518; § 9, 524; § 35, 542; C. § 2, 555; § 4, 558; § 10, 562; I. 603, 604, 608. _See also_ Sculpture. Areopagitica, Milton's, 22. Argentina, 62, 317, 323, 331, 332, |425|, 636, 643, 652. Ariosto, 14. _Armarium_, 8. Arnell, S. M., 348. Arnold, Matthew, 457. Aronson _v._ Fleckenstein (1886), 192. Arrangement, 42, 43, 45, 64, 73, 81, 163, |169|, 188, |197|, 202, 209, 319, 326, 392; § 1 (b), 465; § 1 (e), 466; § 6, 468; R. § 10, 498; C. § 2, 555; Au. § 13, 584; I. 604, 614, 615; P. 634, 651. Arrangement of material, copr. in, 69, 73, 256. Arthur, President, 358. Articles. _See_ Periodical contribution. Artist. _See_ Artistic work, Author. Artistic copr., |222-50|. _See also_ Artistic work. Artistic copr. society, 32. Artistic craftsmanship, 376; E. § 2 (1), 519; § 35 (1), 542; C. 2, 555; § 4, 558. Artistic work, 37, |222-50|, 375, 387, 388; Au. §§ 34-44, 589-91; I. 603; P. 633, 637, 642, 649; classification and definition, 61, 63, 172, 198, 223, 318, 326, 332, 336, 393; § 5 (g), 468; R. § 12, 498; E. § 1, 517; § 35, 542; C. § 2, 555; Au. § 4, 580; § 34, 589; I. 603, 616; P. 633, 637, 649; duties, 288; exhibition, 224, 231, |234|, 250, 322, 327; E. § 1 (3), 518; C. § 2, 556; I. 608; formalities, 127, 140, 150, 225-30, 235, 388; § 18, 472; R. § 25, 501; C. § 3, 557, § 26, 568; infringement, 238; § 25 (b), 476; I. 614; P. 634, 639, 651; manufacturing provisions, 156, 160, 228, 246, 391, 392, 393; § 15, 471; C. § 3, 557; Au. § 35, 590; material property, 222, 228, 234, 398; in other countries, 151, 247-50, 398-429; photographs of, I. 606; publication, 234; special rights, 42, 46, 223, 264, 376; § 1 (b), 465; E. § 1 (2), § 2, 518; C. § 2, 556; § 4, 558; I. 613; P. 639, 651; term, 230, 245-49, 374-429; unpublished works, 86, 119, 144, |225|, 226, |230|; § 11, 470; R. §§ 17-21, 499-500. _See also_ Alterations, Architecture, Engravings, Photographs, Reproductions, Sculpture, etc. Assets, copyrights as, 451. Assignment of contract, 432, 441, 443, 444, 447; of copyright, 47, 60, 61, 98, 101, |104|, 110, 113, 123, 135, |189|, 228, 234, 261, 295, 306, 377, 393, 434; §§ 41-44, 482; § 46, 483; § 61, 487; R. §§ 41-43, 508; E. § 5, 521; § 19, 532; § 24, 535; C. § 7, 560; § 30, 569; § 33, 571; Au. §§ 24-26, 587; §§ 42-43, 591; of renewal rights, |104|, |106|, 116; R. § 48, 509; record of, 36, 49, 105, 189, 306, 387, 428; §§ 43-45, 482; § 61, 487; R. §§ 41-42, 508; E. § 5, 521; C. § 7 (3), 560; Au. § 66, 599; reversion of, 123, 378, 410, 425, 429; E. § 4, 522; C. § 33, 571. Assigns, 24, 35, 50, 92, 95, 106, 113, 114, |116|, 123, 318, 321, 410, 414, 415, 425, 429; § 8, 469; R. § 2, 495; § 48, 509; E. § 5 (3), 522; C. § 2, 555; § 7 (6), 561; § 33, 571; Au. § 4, 580; I. 606; P. 637, 649. Assistant Register of Copyrights, 297, 300, 302; § 48, 483. Assoc. for reform and codification of law of nations, 355. _Assoc. littéraire et artistique internationale_, 32, 209, 314, 356. Astrological charts noncopr., 223; R. § 11, 498. Attorney-General, opinions, 104, 116, 143, 159, 212, 229, 284, 285, 287, 291, 309, 337, 456, 514. Aulic council, 11. Australia, 113, 152, 160, 168, 188, 189, 197, 246, 295, 310, 321, 375, 382, |391-94|; E. § 35 (1), 543; code of 1905, 391-94; text of, 580-602, _i. e._ preliminary, Au. §§ 1-8, 580-82; administration, Au. §§ 9-12, 582-84; literary, musical and dramatic copr, Au. §§ 13-33, 584-89; artistic copr., Au. §§ 34-44, 589-91; infringement, Au. §§ 45-61, 591-98; international and state copr., Au. §§ 62-63, 598; registration, Au. §§ 64-76, 598-601; miscellaneous, Au. §§ 77-79, 601-02. Austria, 112, 123, 197, 316, 340, |405|, 489. _See also_ Hungary. Author, 7, 8, 35, |95-113|, 149, 162, 214, 218, 318, 321, 326, 327, 333; E. §§ 1-5, 517-522; § 6, (3) 523; § 24, 536; I. 606, 608, 609; P. 633, 637, 649; definition, 66; § 62, 488; R. § 30, 503; Au. § 4, 580; first owner, 95, 113, 247, 393; E. § 5, 521; Au. § 18, 586; § 37, 591; name, 11, 98, 100, 129, 151, 277, 319, 329, 333, 337, 427; R. § 30, 503; E. § 6 (3), 522; C. § 25, 568; I. 617; P. 634, 639, 650; relations with publisher, 402, 409, |430-52|; reputation of, 243, 245, 264, 275. _See also_ Anonymous and pseudonymous, Consent, Contract, Corporate works, Employer, Foreign author, Joint authors, Owner, Proprietor, Residence, Rights, etc. Authors Club, 372. Authorized copies prohibited importation, 279, 280, 513; § 31, 478. Badges noncopr., 224; R. § 16, 499. Bahamas, 391. Baker _v._ Taylor (1848), 129. Baldwin, J. D., bill and rpt. (1868), 348. Balkan states, 414. Ballet. _See_ Choregraphic works. Bamforth _v._ Douglas Post Card Co. (1908), 264. Bands, musical, 206; § 25 (e), 477. Bank deposit books, noncopr. 71; R. § 5, 496. Bankruptcy, 47, 409, 433, 443, |451|. Banks _v._ McDivitt (1875), 251. Banks Law Book Co. _v._ Lawyers Co-op. Pub. Co. (1909), 259. Banishment, 422. Banning, H. B., bill (1874), 353. Barbaro, 13. Barchfeld, A. J., bill (1908), 370. Barfield _v._ Nicholson (1824), |441|. Barnes _v._ Miner (1903), 175. Barrie, J. M., 110. Basel, 11, 12. Beaconsfield, memoir of, 90. Beck, J. B., bill (1872), 352. Beckford _v._ Hood (1798), 27. Beere _v._ Ellis (1889), 173. Belgium, 111, 124, 198, 316, 317, 318, 320, 322, 323, 330, 331, 340, |400|, 489, 636; mechanical music, 213, 340, 398, 490. _Belgravia_ case, 75, 84, 85. _Bell's Life_, 83. Bell _v._ Locke (1840), 83. Ben Hur cases, 77, 176, 237, 242. Benaliis, 14. Bennett _v._ Boston Traveler Co. (1900), 272. Bennett _v._ Carr (1899), 236. Benziger Brothers, importation, 159, 283. Bequest, copr. subject to, 104; § 42, 482. _See also_ Assignment. Bergne, Sir H., 325. Berlin conference, 323-25; convention, 62, 94, 118, 152, 199, 209, 250, 296, 323, |326-30|, 372, 415, 456; text of, 603-32. _See_ also International conventions. Berlin Photographic Co. _See_ Werckmeister. Berne conferences, 314, 316, 317, 358, 360; convention, 31, 185, 209, 248, 296, 312, 313, |318|, 320, 329, 375, 381, 456; prophecy of, 345; text of, 603-32. _See also_ International conventions, Paris acts. Besant, Walter, 31, 457. Bible, 21, 96, 123. _Bibliographie Universelle_, 83. Bibliography of copr., 453-62. Bills in Congress, 344-71. _See also_ Names of Congressmen. Binding, affidavit of Amer., 153, 155, |511|; § 15, 471; § 16, 472; R. § 27, 502; § 32, 504. Bindings, importation, 121, 159, 283, |287|, 291. Birrell, Augustine, 51, 458. Bisel _v._ Welsh (1904), 257. Bizet's "Carmen," case, 120, 188. Black _v._ Allen (1893), 261. Black _v._ Ehrich (1891), 261. Black _v._ Murray (1870), 75. Blackstone, 2, 6, 81. Blackwood _v._ Brewster (1860), 445. Blaine, Secretary, 356. Blank book, 69, 70, 71, 72; R. § 5, |496|. Blank forms, 69, 70, 72. Blasphemous works. _See_ Immoral. Blatchford, J., 175. Bleistein _v._ Donaldson (1903), 102, 237. Blind, works for, 154, 279, 280; § 15, 471; § 31, 478. Bloom _v._ Nixon (1903), 190. Blue-book (1878), 30, 459 (1909), 32, 459. Board of Trade, regulations, E. § 3, 520; § 15 (5), 527; § 19 (3), 531. Bodleian Library. _See_ University deposit. Bobbs-Merrill _v._ Straus (1908), 55, 56. Bogue _v._ Houlston (1852), 76. Bolivia, 331, 332, 336, |427|, 636, 643. Bolton _v._ Aldin (1895), 241. Bolton _v._ London Exhibitions (1898), 240, 244, 253. Bond of Register of Copyrights, 299, 303; § 50, 484. Bong _v._ Campbell Art Co. (1909), 110. Book, 63, 76, 326, 332, 392; § 5(a), 467; Au. § 13, 585; I. 603; P. 633, 639, 651; application form, 139, 512; catalog of copr. entries, 300; definition, |68-72|; R. § 4, 496; E. § 15(7), 527; Au. § 4, 580; duties on, 288, 291; early English restriction, 19, 20; importation, 279-96; § 31 (d), 479; interim protection, 146; § 9, 469; § 21, 474; R. § 28, 502; R. § 35, 506; notice, 127, 130, 131; § 9, 469; § 18, 472; § 19, 473; C. § 3 (2), 557; registration, 132, 306; § 61, 487; E. § 15, 527; C. § 22, 567; § 26, 568. _See also_ Importation, Literary work, Manufacture, etc. Book of Common Prayer, 21, 123. Bookseller. _See_ Publisher. Book-fairs, German, 11, 13, 15. Boosey _v._ Jefferys. _See_ Jefferys _v._ Boosey. Boosey _v._ Whight (1899), 208. Bosselman _v._ Richardson (1909), 107. _Börsenblatt_, 403. Boucicault _v._ Chatterton (1876), 184. Boucicault _v._ Delafield (1863), 184. Boucicault _v._ Fox (1862), 97. Boucicault _v._ Hart (1875), 149. Bowker, R. R., 214, 370, 455. Bowker-Solberg volume, 359, 453. Bracken _v._ Rosenthal, (1907), 243. Braddon, Miss, 83, 173. Brady, 191. Brady _v._ Daly (1899), 191, 272. Brazil, 124, 152, 198, 201, 248, 331, 335, 336, |425|, 636, 642, 652. Breckinridge, W. C. P., bill (1888, '89), 361. Briggs, W., 459. Bristed, C. Astor, bill (1872), 351. Britain _v._ Hanks (1902), 247. British copr., early protection, 6, 19-23, 24; laws, 24-34, 456; scope, 61; subject-matter, 68, 78, 90, 94; translations, 78; lectures, 91; ownership, 106, 108; assignment, 106, 190; residence, 108; term, 25, 121, 124, 188, 374; formalities, 125, 150, 189, 310, 373-74; publication, 49, 109, 373, 376, 377; patent proviso, 161; dramatic and musical, 171, 174, 178, 181-85, 189, 190, |195|, 550-54; performance as publication, 181, 184; mechanical reproduction, 208; artistic, 246, 548-49; exhibition as publication, 232; remedies, 277; importation, 18, 292; registration, 189, 310; international, 31, 32, 108, 111, 184, 311, 316, 317, 318, 320, 323, 330, 374, 375, 381; authors' address, 341; Palmerston invitation, 346; Clarendon treaty, 349, 354; Granville negotiations, 355; literature, 456-60; new code, 32, 61, 93, 90, 91, 94, 109, 113, 122, 151, 172, 178, 184, 189, 190, 193, 197, 208, 242, 247, 246, 277, 293, |374-80|; text of, 517-47; _i. e._ rights, E. § 1-5, 517-22; civil remedies, E. § 6-10, 522-24; summary remedies, E. § 11-13, 524-25; importation, E. § 14, 525; delivery to libraries, E. § 15, 527; special provisions, E. § 16-24, 528-36; application to British possessions, E. § 25-28, 536-38; international copr. E. § 29-30, 539-41; supplemental provisions, E. § 31-37, 541-44; schedules, E. 545-47; unrepealed acts, 548-54. _See also_ Australia, Canada, Newfoundland, New Zealand, South Africa, India, etc.; British Museum, Crown, Stationers Hall, University; Designs, Patents; _also _ specific subjects. British Empire, 24-34, |373-97|. _See also_ British copr. British Guiana, 391. British Honduras, 391. British Museum, deposit, 122, 150, 310, |312|, 374, 378, 386, 391; E. § 15, 527; C. § 27, 568. British possessions (colonies, dominions), |380-97|; term, 119, 188, 246; formalities, 151; manufacturing provisions, 160, 168; dramatic and musical works, 168, 189, 190; importation, 294; copyright offices, 310; international 31, 381. _See also_ British copr., _also_ individual names. British Soc. of Authors, 31, 457. British West Indies, 391. Broder _v._ Zeno Mauvais (1898), 86. Brooke _v._ Chitty (1831), 442. Brooklyn Photogravure Co., 244. Brown, H. F., 16. Brussels literary congress (1884), 314. Bryant, W. C., 347, 348. Bryce, Lloyd S., bill (1888), 361. Buckles noncopr., 224; R. § 16, 499. Buckley, S., 29. Buda-Pesth, telephone newspaper, 217. Buenos Aires conference, 332, 336; convention, 113, 152, 201, 250, 296, 332, |336|, 337, 419; text of, 649-652. _See also_ International conventions, Pan Amer. Union and names of countries. Buildings. _See_ Architecture. Bulgaria, 414. Bullen _v._ Aflalo (1903), 99. Bulwer-Lytton's act (1833), 182. Bureau of Int. Copr. Union, 319, 329, 330; I. 622; Pan Amer., 335, 336; P. 642-647. Burk _v._ Johnson (1906), 61. Burke, P: 457. Burlesque, 190; Au. § 4, 582. Burlesqued title, 264. Burrow-Giles Lith. Co. _v._ Sarony (1884), 67, 129, 240. Business relations, 430-52. Buttons noncopr., 224; R. § 16, |499|. Butterworth, Benjamin, bill (1890), 362. Cable _v._ Marks (1882), 242. Calculations, mathematical, 70. Calendars, 38, 69, 71; R. § 5, 496. California copr. legislation, 39, 194. Caliga _v._ Inter-Ocean Newspaper Co. (1909), 231. Callaghan _v._ Myers (1888), 130. Cambridge. _See_ University deposit. Canada, 119, 151, 160, 168, 188-90, 246, 294, 310, 321, 375, 381, 382, |383-90|, 460; E. § 35 (1), 543; laws, 295, 383-86, 456; code of 1911, 386-88, text of, 555-79, _i. e._, interpretation, C. § 2, 555; conditions of copr., C. § 3, 557; infringement, C. § 4, 558; term, C. § 5, 559; license to republish, C. § 6, 559; ownership and assignment, C. § 7, 560; civil remedies, C. §§ 8-10, 561-62; offences and penalties, C. §§ 11-12, 562; summary remedies, C. §§ 13-15, 562-65; importation, C. §§ 16-21, 565-67; registration, C. §§ 22-27, 567-69; special provisions, C. §§ 28-32, 569-70; existing works, C. §§ 33-157; imperial reciprocity, C. § 34, 573; international, C. §§ 35-36, 573-74; evidence, C. §§ 37-38, 574; fees, C. § 39, 574; clerical errors, C. § 40, 575; rules and regulations, C. §§ 41-46, 575-76; schedules, 577-79. Canada copr. [imperial] act (1875), 30, 382, 384. _Canada Gazette_, 388, C. § 43, 576. Canal Zone, 39, 423. _See also_ Panama. Canned music. _See_ Mechanical reproduction. Cantatas, 60, 164, 166; § 28, 478. Cape Colony, 381, 396. _See also_ South African Union. Card copr., 70; R. § 4, 496. Carey, H. C., 3, 344, 347, 454. Carlisle, Senator, 363. Carlyle, T., 351, 457. Carmen case (1905), 120, 188. Carnegie, Andrew, 331. Cartographical works. _See_ Maps. Cary _v._ Longman (1801), 76. Castellazzo, 14. Casts. _See_ Reproduction, Sculpture. Catalogue of British Museum, 310; of U. S. copr. entries, 299-301, 304-06; § 56, 485; § 57, 485; § 60, 486; cards, 301. Catalogues, 69, 71, 73, 234, 237; R. § 4, § 5, 496. Cate _v._ Devon (1889), 254. Celtes, 11. Censorship, 10, 15, 199. Central Amer., 421-23. Certificates, 10, 16, 72, 119, 126, 136, |140|, 168, 230, 303, 307, 309, 319, 335; § 10, 469; § 55, 484; § 61, 487; R. § 3, 495; C. § 7 (5), 561; Au. § 69, § 70, 599; I. 617; P. 644. Ceylon, 395. Chace, Senator, bills (1886-88), 358, 360, 361. Champney _v._ Haag (1903), 243, 274. Channel Islands, 381; E. § 37, 544. Chappell _v._ Boosey (1882), 183, 184. Characters in plays, 170, 175, 192. Charitable purpose. _See_ Performance. Charles II, 22. Charles V, 10. Charles IX., 18. Charts. _See_ Maps. Chatterbox cases, |84|, 261. Chatterton _v._ Cave (1876), 174. Check books, noncopr., 71; R. § 5, 496. Chicago Dollar Directory case (1895), 257. Chicago Tribune _v._ Ill Pr. & Pub. Co. (1909), 103. Child _v._ N. Y. Times Co. (1901), 272. Children. _See_ Heirs. Chile, 112, 323, 331, 332, 345, |427|, 489, 636, 643, 652. China, 112, 201, 323, 340, |417|. Chippewa Indians, 41. Choregraphic works, 162, 177, 198, 320, 326, 336; R. § 8, 497; E. § 35, 542; C. § 2, 555; I. 603, 604; P. 634, 649. Chrestomathies, 334, 337; I. 613; P. 639, 651. _See also_ Collections. Christie, W. D., 457. Chromos. _See_ Lithographs. Chronology, copyrightable, 69. Church control, 17; texts, 12. Cicero, 8. Cinematograph. _See_ Moving pictures. Circulars, 71; R. § 4, 496; C. § 14, 564. Circulars, Copyright Office, 456. Circus posters, 237, 244. Circus tricks noncopr., 163; R. § 8, 497. Citations. _See_ Law reports. Citizens, intending, 109. _See also_ Foreign, Residence. Citizenship defined, R. § 30, 503. City Club conferences, 367. Civil remedies. _See_ Remedies. Claim of copr. _See_ Application, Notice. Claimant of copr., 95, |96|, 136, 137, 304; § 55, 484; R. § 29, § 30, 503. Clarendon treaty, 349, 354. Clark _v._ Bishop (1872), 176. Clarke _v._ Price (1819), 441. Classic times, 8. Classification of copr., 63, 64, |136|, 168; § 5, 467. Clay, H., 341; bills and rpt. (1837-42), 344, 346. Clayton _v._ Stone (1828), 69. Cleland _v._ Thayer (1903), 241. Clemens, S. L., 98, 99, 359, 447. Clemens _v._ Belford (1883), 98. Cleveland, President, 358, 360. Clifford, J., 254. Clinical Obstetrics, _in re_ (1908), 447. Cobbett _v._ Woodward (1872), 73. Code of 1909, 39, 372; text of, |465-88|. Codeca, 14. Codes, telegraphic, 70. Cohen, B. A., 458. Coin-operated machines, 204; § 1 (e), |466|. Collaboration. _See_ Joint author. Collections, 69, |81|, 377, 406, 409, 431, 434; E. § 2, 519. _See also_ Chrestomathies. Collective work. _See_ Composite works. Colles & Hardy, 171, 459. Collins, P. A., bill (1883), 356. Colombia, 124, 152, 198, 323, 332, |429|, |643|, 652. Colonial copr. act, 29, 293, 379, 380, 381, 382. Combinations, copr. in, 69, 73, 82, 224; R. § 16, 499; C. § 2, 555. Commission, Royal Copr., 30, 122, 183, 459. Committee of experts, 404. _See also_ Congressional. Common law, 2, 4, 5, 6, 7, 9, 23, 24, 26, |34|, 40, 42, 43, |44|, 46, 59, 61, 62, 86, 90, 91, 92, 95, 119, 178, 182, 186, 187, 192, 225, 261, 277, 379, 387, 392, 425; § 2, 467; E. § 31, 541; C. § 42, 576, 577; Au. § 7, 583. Competition. _See_ Unfair competition. Compilations, 63, 64, 69, 71, 81, 255, 256, 257, 326, 428; § 5(a), 467; § 6, 468; R. § 4, 496; I. 604. Component parts, 64, 74, 76; § 3, 467. Composer. _See_ Author, Music. Composite works, 63, 64, 76, 81, |100|, 104, 106, 113-116, 120, 132, 403; § 3, 467; § 5(a), 467; § 23, 474; § 24, 475; R. § 47, 509; E. § 5, 522; § 24, 534; § 35, 542; C. § 30, 569; Au. § 20, 587; importation, 286. _See also_ Cyclopædic works. Compulsory license. _See_ License. Condensations, 261, 275. _See also_ Abridgment. Conferences, copr., 32, 316, 367, 430, 460. _See also_ Congressional Committees, Inter. copr. Congo Free State, |419|. Congress, Constitutional authorization, 7, 35. Congressional Committees, 117, 119, 242; foreign relations, 347; judiciary, 357, 361, 362; library, 348, 350, 352; patents, 202, 204, 295, 356, 360, 361, 362, 367, 369, 371; whole, 347, 350, 371. Congressional hearings, 202, 204, 214, 296, 352, 359, 369, 448. Connecticut copr. legislation, 35, 40, 194. Consent of author or proprietor, 5, 15, 22, 45, 52, 59, 65, 88, 91, 93, 100, 120, 127, 198, 279, 386, 432; § 2, 467; § 6, 468; § 11 (2), 525; § 62, 488; E. § 35 (2), 543, 551; C. § 2 (2), 557; § 13, 563; Au. § 29, 588. Consolidated Gas Co. case (1909), 207. Constitutional provision, 7, 34, 35, 51, 66, 67, 114, 180, 218. Constitutionality, music royalty, 52, 207. Construction. _See_ Architecture, works of. Contract, 10, 48, 49, 53, 54, 57, 60, 78, 87, 90, 97, 98, 101, 103, 106, 117, 118, 186, 187, 188, 232, 234, 409, |430-52|; E. § 5, 521; standard, 438. Contracts, forms of, noncopr., 71; R. § 5, 496. Contributions. _See_ Periodical contribution. Control of sale, 54, 60. Conventions. _See_ Treaties, International, Pan Amer. Union, Berne, Paris, Berlin, Montevideo, Mexico City, Rio de Janeiro, Buenos Aires. Cooper, J. F., 347. Copies. _See_ Authorized copies. Copinger, W. A., 6, 80, 454, 458. "Copy," 1. Copy, right to, 1, 10, 42, 45, |53|, 163, 392; § 1 (a), 465; Au. § 13, 584. Copy of a copy, 243. Copyright, definition of, 1, 2, |42-62|, 333, 376, 387, 392, 419; E. § 1 (2), 518, 545; C. § 2, 556, 577; Au. § 13, 584; P. 633, 637, 649. Copyright deposits, 54, 55, 136, 298, 299, 305, 306, 309; § 59, 60, 486; R. § 49, 509; C. § 27, 568. _See also_ Deposit. Copyright Office, 130, 297-310; § 47-61, 483-87; in British Empire, 310, 373-97; C. § 2, 555; § 22, 567; § 27, 568; Au. § 9-11, 562-83; in other countries, 310, 398-429; publications, 40, 72, 195, 300, 304, 366, 367, 372, |455|. _See also_ Regulations, Seal. Copyright records, 95, 298, 302, 305, 309; § 47, 483; § 54, 484; § 58, 486; R. § 49, 509; C. § 22, 567; Au. § 64-76, 599-601. _See also_ Registers. Corporate work, 102, 104, 106, 115, 122, 398-429; § 23, 474; E. § 19, 529; § 21, 533; C. § 31, 570. Corporation, 102, 129, 157, 273; § 23, 474; R. § 24, 501; § 33, 505; E. § 19, 529; § 21, 533; C. § 31, 570. Corson, Levi, H. 38. Cost tables, 70; R. § 4, 496. Costa Rica, 112, 152, 316, 317, 332, 334, 336, 340, 420, |421|, 423, 489, 643, 652. Costs, legal, 276; § 40, 482; E. § 6 (2), 523; C. § 8, 561; Au. § 78, 602. Couhin, Claude, 460. Country of origin, 152, 313, 318, 319, 327, 328, 329, 333; I. 606, 607, 609, 610, 612, 618, 619; P. 638, 643, 644, 650. _See also_ First publication. Coupons, noncopr., 70, 71; R. § 5, 496. Courier Lith. Co. case, 102. Court jurisdiction, 36, 260, 269, 270, 271, 319; § 26, 477; § 34, § 35, 481; E. § 12, 525, 549, 552, 553; C. § 14, 563; § 15, 564; Au. § 59-60, 597; § 79, 602; I. 609, 618; P. 635, 640, 652; consular, 62, 201, 417, 418. Courtesy of the trade, 8, 10, 364. Cox _v._ Cox (1853), 443. Cox, S. S. bill (1871), 350. Crampton, John F., 347. Crasso, 14. Credit-rating books, 53, 70. Criticism, 259, 264, 334, 376; E. § 2 (1), 518; C. § 4, 558; Au. § 28, 588; P. 640, 651. Crookes _v._ Petter (1860), 445. Crown, copr., 21, 49, 123, 377; E. § 18, 529. Cuba, 112, 124, 334, 335, 340, 410, |423|, 642, 652. Currier, Frank D., bills (1908-9), 367, 369, 370, 371. Curtis, G. Ticknor, 80, 455. Curtis, G. W., 348, 454. Custom of the trade, 236, 259, 364. Customs, American, 291; duties, 288; regulations, 279, 282, |513|; British, 29, 292; Consolidation Act (1876), 30, 33, 293; E. § 14 (6), 526; duties, 384, 390; C. § 16, 565; notification, 293-295, 310, 378, 392, 395, 396; E. § 14, 525; C. § 20, 566; Au. § 61, 598. _See also_ Importation. Cuts. _See_ Engravings. Cyclopædic works, 63, 71, 81, |99|, 115, 122, 188, 287, 460; § 5 (a), 467; § 23, 474; R. § 4, 496; E. § 15, 527; § 35, 542; C. § 22, 567; § 30, 569; Au. § 20, 586. _See also_ Composite works, Encyclopædia. Cylinders. _See_ Mechanical instruments. Cyprus, 375, |397|; E. § 28, 538. Daldy, F. R., 356. Daly _v._ Brady (1899), 191. Daly _v._ Palmer (1868), 175. Daly _v._ Walrath (1899), 181. Daly _v._ Webster (1892), 191, 192. Dam _v._ Kirke La Shelle Co. (1908, 1910), 101, 171. Damages, 26, 57, 195, 200, 206, 245, |265|, |272|, 274, 378, 389, 404; § 25 (b), 476; § 25 (e), 477; E. § 6, 522; § 8, 523; C. § 8, 561; Au. 146, 591. _See also_ Penalties. Dances. _See_ Choregraphic works. Danish West Indies. _See_ Denmark. Date. _See_ Notice, Publication. Daude, 461. Davis, J. Howlett, 220. Davis _v._ Benjamin (1906), 73. Day, Justice, 56. De Jonge _v._ Breuker & Kessler (1910), 237, 242. Death. _See_ Heirs, Joint authorship, Term. Deception. _See_ Fraud, Intent. Decorative borders, 224; R. § 16, |499|. Dedication, multiplying copies not, 4. _See_ also Public domain, Publication. Definitions in laws, § 62, 488; E. § 35, 542; C. § 2, 555; Au. § 4, 580. _See also_ specific subjects. Deliver, right to, 42, 45, |59|, 61, 91, 376, 393; § 1 (c), 465; E. § 1, 518; C. § 2, 556; Au. § 15, 584. _See also_ Oral work. Delivery. _See_ Deposit, Forfeiture, Oral work, Publication. Denmark, 111, 124, 197, 200, 248, 321, 323, 330, 340, 402, |407|. Deposit copies, |142|, 166, |226|, 305, 306; § 11, § 12, 470; § 59, § 60, 486; R. § 3, 495; § 18, 499; § 22, 500; failure to, 36, 121, 142, 144, 150, 152, 199, 396, 407, 429; § 13, 470; history, 15-18, 22, 24, 27, 28, 36, 37; in British Empire, 150, 189, 373, 378, 383-97; E. § 15, 527; § 29, 539; C. § 26, § 27, 568; Au. § 75, 601; in mails, 36, 145; R. § 39, 507; in other countries, 151, 399-429; insufficient, 145; R. § 18, 500; interim, 146, 366; § 21, 474; R. § 38, 507; Pan Amer. 333, P. 638, 643; periodical contribution, 138, 143; § 12, 470; precedent to suit, 24, 399, 416; Au. § 74, 600; receipts for, 136, 145, 303; § 14, 471; § 55, 484; R. § 39, 507; unpublished works, 86, 143, 144, 166, 225, 226; § 11, § 12, 470; R. § 18, 499; § 19, 500. _See also_ Copyright deposits, Library. Descriptions as deposit, 70, 114, 162, 236, 238, 388, 390, 391; R. § 4, 496; § 8, |497|; C. § 26, 568. Designs, 27, 29, 33, 36, 42, 46, 63, 70, 76, |93|, 127, 223-26, 229, 242, 248, 376, 386; § 1 (b), 465; § 5 (g), 468; § 18, 472; R. § 14, 498; § 20, 500; E. § 22, 534; C. § 32, 570; I. 603; P. 637; acts, 27, 29, 189. Destruction of infringing copies, 11, 266, 268, 277, 279, 282, 283; § 25 (d), 476; § 32, 480; E. § 9, 524; § 11, 525, 550; C. § 10, 562; § 13, 563; § 14 (3), 564; § 21, 566; Au. § 52, 593; § 56, 596; accidental, 432, 438, 444, 449. Diagrams, 69, 223; R. § 11, 498; Au. § 4, 581. Dialects, translation into other, 42, 58, 407, 409; § 1 (b), 465. Dialogue in drama, 171, 173, 175, 176, 191. Diaries, blank, noncopr., 71; R. § 5, 496. Dickens, C., 346, 348. Dicks _v._ Yates (1881), 83. Dictionaries, 69; E. § 35, 542; C. § 30, 569. Dielman _v._ White (1900), 234. Digests. _See_ Law digests. Directions, noncopr., 71, 208; R. § 5, 496. Directories, 63, 69, 71, |81|, 255, 257, 274, 275; § 5 (a), 467; R. § 4, 496. Disks. _See_ Mechanical instruments. Distribution. _See_ Publication. Doan _v._ Amer. Book Co. (1901), 263. Documents, legal, copr., 72; public, noncopr. 72; § 7, 468. _See also_ Government publications. Dodd _v._ Smith (1891), 263. Dodge _v._ Allied Arts Co. (1903), 245. Dolls, noncopr., 72, 223; R. § 12, 498. Domicile. _See_ Residence. Dominican Republic, 62, 124, 332, 334, |424|, 643, 652. Donaldson _v._ Becket (1774), 7, 25, 41. Dorsheimer, Wm., bill (1884), 356, 357. Dramatic work, |162-201|, 375, 387; E. § 1, 517; C. § 3, 557; classification and definition, 63, 162, 175, 318, 326, 332, 393; § 5 (d), 468; R. § 8, 497; E. § 35, 542; C. § 2, 555; Au. § 4, 580; I. 603; P. 633, 637, 649; acts, 27, 30, 37, 39, 182, 398; excepted from manufacturing clause, 70, 155, |167|; R. § 4, 496; formalities, 86, 119, 127, 139, 144, 150, 166, 168, 189, 393, 396, 406; § 11, 470; § 18, 472; R. § 18, 499; C. § 26, 568; Au. § 13, § 14, 584, § 32, 588; infringement, 195, 266, 267, 394; § 25 (b), 476; E. § 2 (3) 520; Au. § 46, 591; § 51, 593; manufacture, 168; performance, 59, 165, 183, 185, 319, 322, 327, 394; R. § 23, 500; E. § 1 (3), 518, § 2 (3), 520; I. 608; prior publication, 183, 185; special rights, 42, 43, 45, 61, 63, 162, 163, 169, 197, 322, 376; § 1 (b), 465; E. § 1, 517, 518; C. § 2, 556; Au. § 13, 14, 584; I. 613, 614; unpublished, 119, 186. _See also_ License, Mechanical reproduction, Performance. Dramatico-musical works, 70, 155, 139, |162-201|, 319, 322, 326, 327; § 5 (d), 468; R. § 8, § 9, 497; I. 603, 604, 608, 613; P. 633, 649; infringement, 195, 266, 267, 476; § 25 (b), 476; § 28, 478. _See also_ Dramatic, Mechanical reproduction, Musical. Dramatize, right to, 42, 45, 47, 58, 61, 63, 163, |169|, 170-72, 322, 376, 392, 398-429; § 1 (b), 465; E. § 1, 518; C. § 2, 556; Au. § 13, 584; I. 614. Dramatization, 64, 170, 172, 174, 176, 328, 398-429, 431; § 1 (b), 465; § 6, 468; C. § 2, 556; I. 614. Drawings, 8, 29, 37, 64, 223, |224|, 229, 242, 246, 247, 248, 250, 326, 332, 376, 388; § 5 (i), 468; § 18, 472; R. § 11, § 12, § 14, 498; E. § 2, 518, § 35, 542; C. § 2, 555; § 4, 558; Au. § 4, 580; I. 603; P. 634, 637, 649. _See also_ Artistic work. _Droit d'Auteur_, 330, 462. Drone, Eaton S., 41, 69, 76, 77, 80, 95, 455. Drummond _v._ Altemus (1894), 264. Drury _v._ Ewing (1862), 69. Dublin University. _See_ University deposit. Duck _v._ Bates (1884), 186. Duck _v._ Mayen (1892), 190. Dumb show, E. § 35 (1), 542. Duration of copr., |114-124|. _See_ Term. Dürer, Albert, 11, 12. Dutch colonies, 401. _See also_ Holland. Duties. _See_ Customs. Dutton _v._ Cupples & Leon (1907), 263. Dwight _v._ Appleton (1840), 133. Easton, J. M., 458. _Écrivains_, 10. Ecuador, 94, 323, 332, |428|, 643, 652. Eddy, Mrs. Mary Baker G., 452. Edinburgh University. _See_ University deposit. Edison, 216, 221. Edison _v._ Lubin (1903), 242. _Édition partagée_, 46. Editions, new, 65, |75|, 83, |134|, 139, 170, 312, 445; § 6, 468; E. § 15 (7), 527; Au. § 27, 587; publishing, 431, 445, 446. Editor. _See_ Author, Proprietor. Edmunds & Bentwich, 459. Education, works for, 12, 60, 164, 264, 275, 279, 281, 290, 334, 337, 377; § 28, § 31, 478; E. § 2, 518; I. |613|; P. |639|, 651. Eggleston, E., 356. Egypt, 62, 124, 201, |418|. Elderkin, J., 352. Eldon, Ld. Chancellor, 256. Election reports, 89. Electrotype, 235. Eliot _v._ Jones (1910), 85. Ellis _v._ Hurst (1910), 98. Ellis _v._ Marshall (1895), 239. Ellis _v._ Ogden (1894), 239. Embroideries noncopr., 72, 223; R. § 12, |498|. Employer, 78, 80, 95, |97|, 99, 104, 111, 115, 137, |188|, 193, |238|, 271, 378, 393, 404, 443; § 23, 474; § 62, 488; R. § 30, 503; E. § 5, 521; C. § 4 (2), 559; § 7, 560; § 13, 562; Au. § 21, 587; §§ 38-40, 591. _See also_ Author, Proprietor. Encyclopædia Britannica, 454. _See also_ Cyclopædic works. Encyclopædia Britannica Co. _v._ Tribune Assoc. (1904), 261; other cases, 261. Engineering work, designs for, 224; R. § 14, 498. England. _See_ British. English, W. E., bill (1885), 358. Engraver as author, 239; Au. § 40, 590. _See_ also Author. Engravings, 11, 14, 36, 67, 73, 76, 113, 150, 223, 234, 240, 244, 247, 248, 250, 288, 315, 326, 332, 376; R. § 13, 498; E. § 1 (3), § 2, 518; § 5, 521; C. § 2, 555, § 3 (2), 557; § 4, 558; § 7, 560; § 26, 568; Au. § 4, 580; I. 603; P. 634, 637, 649; copr. acts, 27, 28, 36, 238, 240, 246. _See also_ Prints; Photo-engravings. Enoch _v._ _Société des phonographes et gramophones_ (1903), 212. Entertainment. _See_ Dramatic work. Entry. _See_ Application, Registration. Epitome. _See_ Abridgment. Equity, principles of, 44, 86, 100, 178, 253, 258; § 2, 467. _See also_ Common law. Errors in affidavit, 157; R. § 33, 505; in copr. notice, 128; common proof by, _See_ Infringement. Esperson, Pietro, 461. Estes _v._ Williams (1884), 83. Estes _v._ Worthington (1887), 84, 261. Etchings. _See_ Engravings. Evarts, W. M., 50, 353. Everett, E: 347. Everson _v._ Young (1889), 72, 96. Evidence, certified, C. § 36, § 37, 574; _prima facie_, 83, 100, 137, 150, 300, 304, 305, 378; § 55, 484; § 56, 485; E. § 6, 523; § 17, 529; Au. § 69, 599. _See also_ Certificate, Name. Exchange of copr. deposits, 298, 305; § 59, 486. Exchange Telegraph _v._ Gregory (1895), 89. Execution, copr. not subject to, 47. _See also_ Bankruptcy. Executor of author, 23, 95, 102, 104, 115, 116; § 8, 469; § 23, 474; § 24, 475; R. § 2, 495; § 46, 509; C. § 2, 555. _See also_ Heirs. Exhibition, 42, 45, 222, |224|, |231|, 235, 238, 239, 250, 322, 327, 376, 404; E. § 1 (3), 518; § 11, 524; C. § 2, 556; § 4, 559; § 11, 524; I. 608, 618; P. 640, 652. _See also_ Artistic work. Existing copr., 116, 319, 320, 329, 377; § 24, 475; E. § 3, 520; § 19 (7), 532, (8), 533; § 29, 539, 545; C. § 33, 571, 577; I. 619, 620. _See also_ Extension, Rights, Schedules. Expositions, exhibits at, 29, 38. Extension of copr., |116|, |117|, 140, 141; § 23, 475; § 24, 475; § 61, 487; R. § 46-48, 509. _See also_ Renewal, Term. Extracts, use of, 198, 211, 264, 319, 328, 334, 337, 377, 404, 438; E. § 2, 519; I. 613; P. 639, 651. _See also_ Quotation. Extraterritorial notice, 133. Eyre _v._ Walker (1735), 24. Fabrics, woven, noncopr., 72, 223; R. § 12, 498. Failure to deposit, translate, etc. _See_ Deposit, Translate, etc. "Fair use," 91, 173, 174, 190, 251-64; Au. § 28, 587; P. 640, 651. _See also_ Infringement, Quotation. Falk _v._ Brett (1891), 241. Falk _v._ Curtis Pub. Co. (1900), 273. Falk _v._ Donaldson Lith. Co. (1893), 244. Falk _v._ Gast (1891, '93), 235, 236, 241. Falk _v._ Heffron (1893), 271. False affidavit, entry, notice. _See_ Affidavit, etc. Farce. _See_ Dramatic work. Farrer license plan, 51, |449|. Fees, |141|, 147, 207, 241, 299, 302, 306, 309, 389, 391, 403; § 49, 483; § 61, 487; R. § 3, 496; § 38, § 40, 507; § 42, § 43, 508; § 48, 509; § 49, 510; C. § 7, 561; § 22, 567; § 39, 574; Au. § 63, 598; § 70, 599; § 71, 600; P. 645. Felice, Fra, of Prato, 17. Fell, Bishop, 19. Fiji Islands, 395. Fillmore, President, 347. Film. _See_ Moving pictures. Fine arts copr. act, 29, 33, 240, 246, 378, |548|. Fines. _See_ Penalties. Finland, 200, |409|. Finnian _v._ Columba (567), 9. First publication, 16, 108, |109|, 120, 127, 150, 151, 182, 184, 185, 199, 200, 321, 327, |373|, 375, 388, 393, 416, 418; R. § 2, 495; E. § 1, 517; § 3, 520; § 17, 529; § 23, 534; § 26 (3), 537; § 27, 538; § 29, 539; § 35 (3), 543; C. § 5, 559; Au. § 5, 581; §§ 13-15, 584; I. 609, 610; P. 638, 650. _See also_ Simultaneous publication. Fishburn _v._ Hollingshead (1891), 313. Fishel _v._ Lueckel (1892), 244. Fisher Act (1900), 295, |385|. Florence, 17. "Fly by night" dramatic companies, 194, 269. Folders, 71; R. § 4, 492. Folsom _v._ Marsh (1841), 92, 252. Foreign assignment, 105; § 43, 482; R. § 41, 508. Foreign author, 19, 37, 79, |107-12|, 138, 139, 373, 375, 387, 388, 389, 390, 404; § 8, 469; R. § 2, 495; § 29, 502; § 30, 503; § 35, 506; E. § 29, 539; C. § 35, 573; Au. § 62, § 63, 598; I. 609, 620; P. 638, 650. _See also_ Residence. Foreign countries copr., |398-429|; scope, 62; subject-matter, 94; ownership, 113; term, 124; formalities, 151, 313; manufacturing provisions, 160; dramatic and musical works, 178, 197, 199; mechanical reproduction, 210-14; artistic work, 248; importation, 295; copr. office, 310; international conventions, 111, |311-40|, 489. _See also_ International, Pan Amer., names of countries and conspectus preceding contents. Foreign laws, list of, 366, 456; reprints act, 27, 29, 294; subjects (artistic), 154, |156|, 228; § 15, 471; R. § 27, 502. Foreign texts, exc. from manuf. clause, |156|, 284; § 15, 471. Foreign works (in U. S.), 29, 30, |79|, 133, 138, 139, |146-50|, 153, 154, |156|, 202, 228, 278-96; § 1 (e), 465; § 15, 471; § 31 (c), 479, 513-16; R. § 28, 502; § 38, 507. _See also_ Interim, Residence. Forfeiture of copr., 15, 121, 131, 132, 144, 150, 152, 158, 196, 235, 245; § 13, 470; § 17, 472; § 32, 480. _See also_ Seizure. Formalities, 35, 39, |125-52|, 166-68, 178, 189, 236, 313, 511, 512; §§ 9-22, 469-474; R. §§ 17-48, 499-509; British, 29, |150|, 373-397; E. § 15, 527; § 29 (1), 539; C. § 3, 557; §§ 22-27, 567-569; § 35, 573; Au. §§ 64-76, 599-601; in other countries, 16, 18, 21, 146, |150-52|, |199|, |398-429|; I. 606, 611, 613, 617; P. 649. _See specifically_ Affidavit, Application, Assignment, Certificate, Deposit, Fees, Notice, Publication, Registration, etc.; _also_ Artistic work, Book, Dramatic work, Musical works, etc. Forms, C. § 41, 575. _See also_ Application. Forms copr., 69, 70; R. § 4, 496; noncopr. 71, 72; R. § 5, 496. Formulæ, noncopr., 71; R. § 5, 496. Fragments not depositable, 143. _See also_ Extracts, Parts, Quotation. France, 62, 111, 118, 124, 151, 248, 295, 310, 316-23, 330, 331, 340, |398|, 460, 489; history, 10, 17, 114, 311, 312, 398; mechanical reproduction, 212. Francis I, 18. Frankfort, 11, 12, 13. Franking labels, 145; R. § 39, 507. _Franklin Square Library_, 262. Fraser _v._ Edwardes (1905), 176. Fraser _v._ Yack (1902), 110. Fraud, 11, 84, 85, 87, 100, 135, |260|, 422. _See also_ Affidavit, Imitation, Intent, Notice, etc. Fraudulent works. _See_ Seizure. Frederick III, 11. Free transmission. _See_ Mails. Freeman _v._ Trade Register (1909), 131. Frelinghuysen, F. T., 357. French colonies. _See_ France. French _v._ Day, Gregory, _et al._ (1893), 193. French _v._ Kreling (1894), 181. Frohman _v._ Ferris (1909), 181. Frohman _v._ Weber (1903), 192. Froude, Jas. A., 351. Frye, Senator, 363. Fuller _v._ Bemis (1892), 177. Fuller _v._ Blackpool Winter Gardens Co. (1895), 176. Fust, 10. Gabriel _v._ McCabe (1896), 82, 256. Gaius, decision of, 8. Gale _v._ Leckie (1817), 441. Gambia, 397. Games, noncopr., 71, 72, 223, 224; R. § 5, 496; § 12, 498; § 16, |499|. Gannet _v._ Rupert (1904), 84, 274. Garfield, President, 255, 356. Garments, noncopr., 72, 223; R. § 12, 498. Garofalo y Morales, D. F. G., 462. Gazetteers, 63, 69, 71, 81; § 5 (a), 467; R. § 4, 496. Geographical work. _See_ Maps. Georgia copr. legislation, 35. Georgian period, 27. Germany, 112, 124, 151, 161, 198, 199, 295, 296, 316-20, 322, 323, 330, 340, 368, |402|, 460, 489; history, 10, 311, 312, 402; mechanical reproduction, 210, 340, 490; publishing law, 430. Gibraltar, 397. Gibson _v._ Carruthers (1841), |452|. Gilbert _v._ _Star_ (1894), 186. Gilbert _v._ Workman (1910), 100. Gilder, R. W., 356. Gilmore _v._ Anderson (1889), 255. Giustiniani, 14. Glaser _v._ St. Elmo Co. (1909), 192. Glassware noncorp., 72, 223; R. § 12, |498|. Globe Newspaper Co. _v._ Walker (1908), 272. Globes, 333; P. 637, |649|. Godson, R: 457. Gold Coast, 397. Gottsberger _v._ Estes (1888), 136. Gounod's "Redemption" case, 187. Government publications, 12, 37, |65|, 98, 123, 377, 398, 403, 407, 410, 412, 420; § 7, 468; E. § 18, 529. Governmental libraries, transfer to, 306; § 59, 486. _See also_ Library. Gramophone. _See_ Mechanical instruments. Grant, 2, 10, 11, 13, 27, 38, 46, 48, 49, 189, 190, 204, 236, 377, 437; § 42, 482; E. § 5, 521; § 24, 535; C. § 7, 560. _See also_ Assignment, License. Granville, Lord, 351, 355. Gratuitous circulation 53, |404|. _See also_ Performance. Graves _v._ Gorrie (1903), 246. Great Britain. _See_ British. Greece, 124, 152, 323, |414|. Green _v._ _Irish Independent_ (1899), 236, 253. Green _v._ Luby (1909), 136. Griffith _v._ Tower (1896), 451. Guatemala, 112, 124, 323, 332, 334, 336, 340, |421|, 643, 652. Guernsey. _See_ Channel Islands. Guggenheim _v._ Leng (1896), 236. Guide books copr., 69. Guilds, 9, 15, 21. Gyles _v._ Wilcox (1740). _See_ Hale case, 80. Haiti, 124, 316, 317, 318, 320, 322, 330, 332, |424|, 643, 652. Hale's "Pleas of the crown" case, 80. Hale, E. Everett, 41, 118. Half tones, 224; R. § 15, 498. Hamlin, Arthur S., 455. Hanfstaengl _v._ Amer. Tobacco Co. (1894), 313. Hanfstaengl _v._ Baines (1894), 242. Hanfstaengl _v._ Holloway (1893), 313. Hansard's Parliamentary debates, 456. Hardwicke, Ld., 80. Harmony. _See_ Musical work. Harper _v._ Donohue (1905), 47, 133. Harper _v._ Franklin Sq. Lib. Co. (1887), 262. Harper _v._ Ganthony (1895), 82, 171. Harper _v._ Kalem Co. (1908, '09, '11), 77, 176, 237, 242. Harper _v._ Ranous (1895), 170. Harper _v._ Shoppell (1886), 235. Harper proposals, 349, 352, 353, 355, 357. Harrison, President, 361, 364. Hartford Printing Co. _v._ Hartford Dir. Co. (1906), 275. Havana. _See_ Bureaus, Pan Amer. Hawaii, 38, 39, 108, 270; § 34, 481. Hawkers, protection against, E. 550, 551. Hawkesworth's "Voyages" case, 81. Hawley, Senator, bill (1885), 358, 361. Hazard, Egbert, 348. Hearings. _See_ Congressional hearings. Hegeman _v._ Springer (1901), 274. Hein _v._ Harris (1910), 170. Heinemann _v._ Smart Set Pub. Co. (1909), 437. Heirs, 11, 14, 27, 36, 46, 49, 102, 104, 113, 114, 115, 116, 123, 124, 378, 402, 410, 422, 429, 433, 452; § 23, 474; § 24, 475; R. § 46, 509; E. § 5 (2), 521; C. § 2, 555; § 25, 568; Au. § 4, 580. _See also_ Administrator, Executor, Renewal, Term. Helmuth, W. Tod, private copr. grant, 38. Henderson _v._ Tompkins (1894), 177. Henry II, III, 18. Henry VIII, 19, 20, 21. Herndon, private copr. grant, 38. Herne _v._ Liebler (1902), 187. Hervieu _v._ Ogilvie (1909), 155, 168. Hills _v._ Hoover (1905), 128. Hire, work for. _See_ Employer. History of copr., 1-41, 311-429, 453-62; America, 35-41, 341-72; British, 19-34, 373-97; early, 8-23; in other countries, 398-429; international, 321-429; literature, 453-62. Hoar, Senator, 361. Hogarth, 27. Hole _v._ Bradbury (1879), 445. Holland, 17, 112, 124, 152, 160, 200, 316, 317, 323, |401|. Holloway _v._ Bradley (1886), 100. Holmes _v._ Hurst (1899), 67. Homer, 8. Honduras, 62, 112, 124, 317, 332, 334, 340, |421|, 643, 652. Hong Kong, 395. Horace, 8. Hotten, J. Camden, 457. Hotten _v._ Arthur (1863), 73. Howard, Bronson, 194. Howitt _v._ Hall (1862), |445|. Hoyt _v._ Bates (1897), 268. Hroswitha, 11. Huard & Mack, 460. Huard, Gustave, 460. Hubbard, Gardiner G., 361. Hungary, 124, 198, 200, |405|. Hunter _v._ Clifford (1909), 247. Ideas, copying of, 176, 187, 240, 257. Ignorance. _See_ Infringement, Innocent. Illustrations, 64, 73, |77|, 127, 131, |138|, 140, 153, 154, |156|, 223, 224, 225, 228, 230, 235, 236, 237, 248, 250, 402, 403, 439; § 5 (k), 468; § 15, 471; § 18, 472; R. § 16, 499; § 25, 501; § 27, 502; Au. § 4, 580; I. 603. _See also_ Artistic, Engravings, etc. Imitation, 11, 12, 30, 84, 190, 254, 260, 263, 264, 286, 376; E. § 2, 519; § 35 (1), 543. _See also_ Adaptations, Infringement. Immoral and seditious works, 86; Au. § 6, 582; P. 635. Imperial Copr. Conference, 32, 460; jurisdiction, 12. _See also_ British. Impersonal works. _See_ Corporate work, Government publications, etc. Importation, |278-96|; foreign practice, 295; foreign rebinding, 159, 287, 514; forfeiture 279, 282, 283; § 32, 480; Au. § 61, 597; I. 618; in British Empire, 24, 27, 31, 292-95, 310, 378, 383-87, 389, 392, 395; E. § 2 (2), 520; § 14, 525; § 25 (2), 536; § 35, 543; C. § 2, 556; § 4, 559; § 13, 562; § 16-21, 565-67; § 35, 573; Au. § 50, 592; § 61, 597; innocent, 286; library, 279, 281, 290, 293, 387; § 31 (d), 479; C. § 17, 565; manufacturing provisions, 156, |159|, 283, 284; on annulment of copr., 121; periodicals, 88, 286; permitted exceptions, 156, 186, 229, 279, 281, 289, 290, 291; § 31, 478; post cards, 229; prohibition of, 12, 13, 18, 19, 21, 31, 134, 135, |278-96|, 389, |513|; § 30, 31, 478; § 33, 480; E. § 14, 525; C. § 21, 566; Au. § 50, 592; § 61, 597; I. 616; regulations, 279, 282, |513|; § 33, 480; re-importation, 229; retroactive effect, 283; return of copies, 279, 282, 514, 515; § 32, 480; tariff, 288, 291; translations, 80, 288; C. § 35, 573. Imprint date, 129; "Venetia" protected, 16. Imprisonment. _See_ Punishment. Incidents, combination of, 170, 178, 186, 191; E. § 35 (1), 542. _Incunabula_, 10. Indecent matter. _See_ Immoral works. _Index expurgatorius_, 17, 160. Index of registrations, 300, 304; § 56, 485; C. § 22, 567. India, 248, 321, 382, |395|. Indians, American, 41. Indo-China. _See_ France. Industrial art, works, 93, 223, 326, 386; R. § 12, 498; C. § 32, 570; I. 605. _See also_ Designs, Trade-mark. Infringement, 5, 16, 18, 21, 22, 23, |251-64|, 376, 380, 404; E. § 2, 518; § 35, 543, 547, 551, 553; C. § 2, 556; § 4, § 5, 558; § 30, 569; Au. § 4, 581; § 28, 587; § 45-61, 591-98; I. 614; P. 634, 635, 639, 651; piratical work, newspaper or periodical, C. § 14 (6), 564; artistic, 245, 266, 267, 378; § 25, (b), 476; E. § 9, 523; Au. § 45, 591; dramatic, 172-74, 190-92, 195, 241, 266, 267; § 25 (b), 476; E. § 2, 520; C. § 4, 559; Au. § 32, 588; § 45, 591; § 51, 593; indirect, 243, 254; innocent, 130, 378; § 20, 473; E. § 2 (2), (3), 520; § 8, 523; C. § 4 (3), 559; § 13, 562; Au. § 50, 592; § 51, 593; musical, 192, 195, 206, 266, 267, 268; § 25 (b), 476, (e), 477; E. § 19 (2), 530, 551-54; Au. § 45, 591; § 51, 593; oral work, 266, 267; § 25 (b), 476; E. § 20, 533; Au. § 45, 591; party liable, 193, 240, 253, 394; E. § 2 (3), 520; § 6 (3), 522; C. § 4, 559; Au. § 51, 593; previous to formalities, 143, 275; § 12, 470; R. § 3, 495; Au. § 74, 600; proof by common errors, 257; remedies and procedure, 195, 206, 245, |265-77|, 404; §§ 25-28, 475-78; E. §§ 6-10, 522-24; §§ 11-13, 524-25, 548; C. §§ 8-15, 561-65; Au. §§ 45-61, 591-98; I. 618; separation of inf. parts, 256. _See also_ Destruction, Importation, Intent, Knowledge, Remedies, Seizure, Suits; _also_ Chronological table of cases. Inglis, Ld. President, 75. Inherent right, 4, 5. _See also_ Common Law. Injunction, 11, 46, 130, 194, 195, 196, 206, 245, |266-68|, 271; § 20, 473; § 25, (a), (e), 475, 477; § 27, 477; § 36, § 37, 481; E. § 6, 512; § 9, 524; C. § 8, 561. Inkus, 11. Innocence. _See_ Infringement, Knowledge. Inspection of records, 305; § 58, 486. Instruments noncopr., 72, 223; R. § 12, 498. _See also_ Mechanical instruments. Insurance policy, copr., 72. Intent, in infringement, 60, 85, 135, 195, |252|, 260, 275, 276; § 28, § 29, 478. _See also_ Fraud, Infringement, Knowledge. Interest tables copr., 70; R. § 4, 496. Interim copr., 38, 126, |135|, 138, 139, |146|, 154, 155, 366; § 9, 469; § 15, 471; § 21, 22, 474; R. § 26, 501; § 28, 502; § 35, 506; § 38, 507. _See also_ Temporary copr. International conventions, |311-40|; Berne (1886), 318; Paris (1896), 321; Berlin (1908), 326; Montevideo, 331; Mexico City, 332; Rio de Janeiro, 334; Buenos Aires, 336; texts, 603-52; scope, 62; subject-matter, 94; term, 118, 124, 188; formalities, 152; dramatic and musical works, 197, 198, 201; mechanical reproduction, 209, 221; artistic work, 248; infringement, 255; importation, 296; reservations, 185, 323, 330, 375, 381, 399, 408, 415, 416. _See also_ names of cities. International copr., 17, 107, |341-72|; § 8, 469; R. § 2, 495; E. § 23, 534; § 29, 539; § 30, 540; C. § 35, 573; Au. § 62, § 63, 598; acts, 28, 29, 30, 31, 37, 109, 184, 246, 292, 311, 312, 313, |341-64|, 373, 379, 381, 383, 386, 388; literature, 330, 454, 456, 461; proclamations, 111, 202, 213, 214, 212, 339, 489; prophecy, 344; trade-mark, 84; translations, 79. _See also_ Interim, International conventions, names of cities, names of countries. International Copr. Assoc, 348, 351. _See also_ Amer. copr. leagues. International Copr. Union. _See_ Internat. conventions. International lit. assocs., 356. International lit. and art. assoc _See_ Assoc. International literary congresses. _See_ Assoc., also names of cities. Interpretation. _See_ Definition. Interstate Commerce Commission, 207. Inventors. _See_ Author. Ireland, E. § 12, 525, 549, 552; prints and engravings act, 28. _See also_ British. Irving, Washington, 83, 347. Isaacs _v._ Daly (1874), 82, 84. Isle of Man, 294, 378, 380; E. § 14 (6), 526. Italy, 13, 111, 124, 152, 199, 213, 310, 316-18, 320, 322, 323, 330, 331, 340, 377, |412|, 450, 461, 489, 636. Ivison, H. 348. Jamaica, |391|. Japan, 112, 124, 321, 323, 330, 340, |415|, 417, 456. Jay, J., 347, 355. Jefferys _v._ Boosey (1854), 1, 4, 108, 373. Jekyll, Sir Joseph, 24. Jersey. _See_ Channel Islands. Jewellers' Merc. Ag. _v._ Jewellers' W'kly Pub. Co. (1898), 53. Johnson, R. U., 360. Joint authors, |101|, 113, 120, 122, 188, 189, 377, 387, 403; E. § 16, 528 § 17, 529; C. § 29, 569; Au. § 17, 585; § 19, 586. Jones, Judson, 38. Jones _v._ Amer. Law Book Co. (1905, '08), 100. Jude's "Liedertafel" case (1907), 447. Judicial Committee, 123; E. § 4, 521. Judiciary committee. _See_ Congressional Committees. Jurisdiction. _See_ Court. Justinian, Code of, 8. Kant, Immanuel, 461. Karno _v._ Pathé Frères (1908-9), 177. Keeler _v._ Standard Folding Bed Co. (1895), 54. Kelley, W. D., 350, 352. Kelly _v._ Byles (1879), 83. Kennedy, J. Louis, 361. Kent, Chancellor, 5. Kessler, 10. "Key of Heaven" importation, 159. Kindersley, Vice-Chancellor (1852), 75. Kipling _v._ Putnam (1903), 263. Kittredge, Senator, bills (1906-8), 367, 369, 370. Knowledge, 60, 195, 196, 236, |252|, 275, 277, 286, 379, 389, 441; § 28, 478; E. § 2 (2), (3), 520; § 8, 523; § 11, 524. _See also_ Intent. Knox & Hind, 459. Koberger, 10. Kohler, Josef, 461. Korea, 112, |416|. Labels, 37, 64, 69, 223, 233, 237, 309. Labor copr. rpt., 456. Laces noncopr., 72, 223; R. § 12, 498. Laches. _See also_ Forfeiture, Notice, omission. Lacombe, J., 177. Ladd _v._ Oxnard (1896), 53. Lamb, C., letters, 92. Lamb _v._ Evans (1892), 74. Landa _v._ Greenberg (1908), 99. Landscapes not map., 223; R. § 11, 498. _See also_ Artistic work. Languages. _See_ Translate, Translations. Larby _v._ Love (1910), 57. Larceny. _See_ Infringement. Lathrop, G. P., 356. Latin Amer., |419|. _See also_ Pan Amer. Union and names of countries. Law reports and digests, 40, 98, |257|, 441, 460. _See also_ Chronological table of cases. Lawfully obtained copies, 60; § 41, 482. Lawrence _v._ Dana (1869), 81, 134, 254. Lawrence & Bullen _v._ Aflalo (1903) 99. Laws. _See_ Copr. Office publications, _also_ British, U. S. and names of other countries. Lea, H. C, 358. Leaflets copr., 70; R. § 4, 496. Lease, right to, 46, 48, 49, 53. Leases, 71; R. § 5, 496. Lecture. _See_ Oral work. Lectures copr. act (1835), 28. Lee _v._ Gibbings (1892), 274. Leech, J., illustrations by, 8, 98. Legal documents, 72. Legal representatives. _See_ Administrators, Executor, Heirs, etc. Leipzig book-fair, 11, 13; tribunals, 211. Lend, right to, 46, 48, 49. Lennie _v._ Pillans (1843), 81. Leo X, 17. Letter-file indexes, noncopr., 70. Letters, 4, |91|, 94, 421. Letters of the King, 18. Letters, ornamental, noncopr., 224; R. § 16, 499. Letters patent, 10. Liability. _See_ Infringement, Proprietor. Libel, 100, 275, 437. _See also_ Reputation. Libelous. _See_ Immoral works. Liberia, 62, 124, 318, 320, 323, 330, |419|. _Libraires_, 10; _jurées_, 10, 15, 17. Librarian of Congress, 37, 72, 96, 296, 297, 299, 302, 303, 305, 306, 367; § 48, § 49, 483; § 51, 484; § 59, § 60, 486. _Librarium_, 8. Library compensation, E. § 34, 541; deposits, 16, 18, 306; § 59, 486; C. § 27, 568; importation, 279, 281, 288, |290|, 293, 386, 387; § 31 (d), 479; C. § 17, 565; loans, 60, 164; § 28, 478. _See also_ Importation, Universities. Library of Congress, 36, 144, 289, 298, 305, 367, 369; § 13, 470; § 59, 486; of Parliament, C. § 27, 568. Library Committee. _See_ Congressional Committees. Librettos, 71, 121, 180, 181, 188, 393; R. § 4, 496; Au. § 4, 581. License, right to, 46, 48, 61, 113, 123, 190, 236; E. § 5, 521; Au. § 25, 587; § 43, 591. License, 51, 61, 211, 377, 387, 422, 425, 450, 451; E. § 4, 451; § 16, 528, § 29, 540; C. § 6, 559; § 7, 561; § 17, 565; § 19, 566; early printers', 11, 21; limitation of, 82, 190, 236, 253, 256; mechanical reproduction, 52, 202, 206, 207, 208, 268, 377, 450; § 1 (e), 465; § 25 (e), 477; R. § 44, 45, 508; E. § 19, 529; sub-license, 187; registration, C. § 7 (3), 560; Au. § 66, 599. _See also_ Assignment, Royalty. Licensing acts, 21, 22, 385. Lieber, Dr. Francis, 346, 454. "Liedertafel series" _in re_ (1907), 447. Lien, printer's, 449. _Life_, case, 84. Limitation, 6, 14, 21, 44, 46, 48, 49, 53, 199, 235, 236, 393; E. § 3, 520; § 4, 521; § 19 (7), 532, (8) 533; C. § 33, 571; I. 615; actions, 122, 270, 272, 273, 378, 404; § 39. 481; E. § 10, 524; C. § 10, § 12, 562; Au. § 48, 592; § 59, 597; assignment, 61, 82, 113, 377, 378; E. § 5, 521; § 24, 534; C. § 7, 560; § 33, 571; sale, 47, |54|, 60. _See also_ "Fair use," License, Price, Term. Lindemann, Otto, 460. Lisbon literary congress (1880), 314. Lists copr., 69, 70. Literary and general copr., 35-161; property, early, 8, 15, 18. Literary work, definitions, 70, 94, 198, 318, 326, 375, 387, 388; R. § 4, 496; E. § 35, 542; C. § 2, 555; I. 603; P. 633, 637, 642, 649. _See also_ Book and specific references under Application,, Affidavit Certificate, etc. Literature of copr., |453-462|. Lithographs, 138, 139, 144, 153, 156, |228|, 244, 247, 248, 250, 326; § 15, 471; § 16, 472; R. § 27, 502; E. § 35, 542; C. § 2, 555; Au. § 4, 580; I. 603; P. 634. Little _v._ Gould (1852), 98. Littleton _v._ Ditson (1894), 167. Living pictures. _See_ _Tableaux_; _also_ Moving pictures. Logarithmic tables copr., 70; R. § 4, 496. London _Gazette_; E. § 24, 535; § 25, 536; § 32, 541; international exhibition, 29; _Journal_, 83; literary congress (1879, 1890), 209, 314. Long Parliament, 21. Lords, House of, decision, 25, 26. Lorimer _v._ Boston Herald (1903), 264. Louis XII, XIV, 18. Louisiana copr. legislation, 39, 194; Purchase Exposition, 38. Low _v._ Routledge (1864), 128. Lowe, Joseph, 454. Lowell, J. R., 355, 359, 454. Lowndes, J. James, 18, 19, 456. Lucas _v._ Moncrieff (1905), 443. Lucas _v._ Williams (1892), 243, 274. Luckombe, 251. Luther, 12. Luxemburg, 112, 198, 200, 214, 248, 321-23, 330, 340, |400|, 490. Lyrical work, 393; Au. § 4, 581. _See also_ Dramatico-musical work. Macaulay, 28, 456. McCall, S. W., bill (1908), 156, 370. McDonald _v._ Hearst (1899), 271. Macdonald _v._ National Review (1893), |442|. MacGillivray, E. L., 181, 252, 458. Mackaye's "Hazel Kirke," 188. McKay Shoe Mfg. Co. license, 451. McKinley, W., 308, 362. Macmillan _v._ Dent (1906), 92. M'Vickar, Dr., 341. Macy cases, 55. Madison, President, 33, 35. Magazine. _See_ Periodical. Mails, importation, 279, 282, |515|; § 33, 480; loss in, of deposit copies, 145; transmission, 36, 37, 142, 145, 515; § 14, 471; R. § 39, 507. Mallory _v._ Mackaye (1898), 188. Maloney _v._ Foote (1900), 274. Malta, 397. Mansell _v._ Valley Printing Co. (1908), 61. Manufacturing provisions, 39, 79, |88|, 144, 148, |153-61|, 228, 285, 341-72; § 12, 470; § 15, 471; § 16, 472; R. § 27, 502; § 32-35, 504-06; affidavit, 137, 139, |156|, 304, 512; § 16, 472; § 55, 484; R. § 32-35, 504-6; "boomerang" effect, 286; exceptions, 146, 153, 154, |155|, 167, 228, 284, 513; § 15, 471; § 31, 478; R. § 27, § 28, 502; § 32, 504; § 35, 506; importation, 80, 147, |159|, 279, 280, 283, 287, 513; § 31, 478; in British Empire, 152, 160, 161, 168, 385, 387-93; E. § 25 (2), 537; C. § 3 (2), 557; Au. § 13, 584; § 35, 590; in other countries, 14, 16, 17, 20, 62, 152, 160, 397, 401, 417. _See also_ Annulment. Manufacture, right to, 46, 48, 49. Manuscript, 4, 9, 42, 45, 90, |91|, 94, 95, 102, 106, |116|, 163, 179, 181, |186|, 199, |218|, 299, 306, 332, 412, 432, 434, 451; § 1 (d), 465; § 60, 486; R. § 18, 499; E. § 17, 529; P. 637. _See also_ Unpublished work. Manx. _See_ Isle of Man. Maple _v._ Junior Army & Navy Stores (1882), 73. Maps, 57, 63, 69, 70, |223|, 239, 247, 248, 250, 255, 288, 326, 333; § 5 f. 468; § 18, 472; R. § 4, 496; § 11, 498; § 25, 501; E. § 15 (7), 527; C. § 2, 555; § 3, 557; § 26, 568; Au. § 4, 581; I. 603; P. 634, 637, 649; application card, 140, 229; R. § 31, 504. Mark Twain. _See_ Clemens, S. L. Marshall _v._ Bull (1901), 238. Martial, 8. Mary _v._ Hubert (1906), 382. Maryland copr. legislation, 35. Massachusetts copr. legislation, 35, 39, 194; "written ballot," 66. Massenet and Puccini _v._ _Compagnie générale des phonographes, et al._ (1904), 213. Masses, performance of, 60, 164; § 28, 478. Material object, separate right in, 8, |60|, 92, 98, 222, |228|, 231, 234, 247, 393, 396, 398; § 41, 482; Au. § 41, 590. Mathematical tables copr., 69, 70; R. § 4, 496. Matrices, 266, 268, 270; § 25 (d), 476; § 27, 477; E. § 35, 543; C. § 2, 556. Matthews, Brander, 454. Maugham, Robert, 458. Mauritius, 395. Mawman _v._ Tegg (1826), 256. Maximilian I, 11. Maxwell _v._ Goodwin (1899), 187. Maxwell _v._ Hogg (1867), 75, 84, 85. Mead _v._ West Pub. Co. (1896), 257. Mechanical instruments, 42, 45, 53, 54, 163, 191, |202-221|, 268, 376, 377, 387; § 1 (d), 465; § 25 (e), 477; E. § 1 (2), 518; § 19, 529; § 35, 543; C. § 2, 556; § 31, 570; § 33, 571; I. 616. Mechanical reproduction, 43, 62, 164, 169, |202-21|, 320, 328; § 1 (e), 465; § 25 (e), 477; R. § 44, § 45, 508; I. 615, 616; application form, 140, 207; arguments for control, 214; dramatic and dramatico-musical works, 166; hearings on, 202, 204, 214, 369, 370; in British Empire, 33, 61, 178, 208, 376, 377, 387; E. § 1, 518; § 19, 529; § 35, 543; C. § 2, 555; § 33, 571; Au. § 4, 580; in other countries, 112, 209, 212, 213, 214, 340, 400, 408, 490; notice of user, 203, 206, 207, 208, 307; § 1 (e), 465; § 25 (c), 477; § 61, 487; R. § 44, § 45, 508; E. § 19, 530; reciprocity, 112, 202, 212, 340, 490; § 1 (e), 465; royalties, 202, 204, 206, |207|, 211; § 1 (e), 465; § 25 (e), 477; E. § 19, 530. _See also_ License. Mechanical stage devices, 162; R. § 8, 497. Melody, 43, 164, 169, 170, 198, 202, 393; § 1 (e), 465; Au. § 4, 581. _See also_ Musical work. Memorandum books, noncopr., 71; R. § 5, 496. Memorial. _See_ Petitions. Merit, literary or artistic, 14, |68|, 69, 73, 175, |177|, |229|, 237, 240, 432. _See also_ Originality. Merriam cases, 134, 261. Messages. _See_ Pigeons, Telegraph. Messages, Presidential, 361, 368. Methods noncopr., 54, 70, 247, 376; E. § 35, 542; C. § 2, 555. Mexico, 112, 124, 198, 323, 332, |420|, 643, 652. Mexico City conference, 331; convention, 112, 332, 419, 422; text of, 637-41. _See also_ International, Pan-Amer. Union and names of countries. Michigan copr. legislation, 40, 194. Mifflin _v._ Dutton (1902), 102. Milan literary congress (1892), 209. Miles _v._ American News Co. (1898), 236. Mill, J. Stuart, 351. Millar _v._ Taylor (1769), 25. Milton, 22. Minnesota copr. legislation, 39, 194. Misleading use. _See_ Fraud, Intent. Mitchell & Miller _v._ White & Allen (1888), 84. Model of artistic work, 43, 63, 93, 127, 223-26, 242; § 1 (b), 465; § 5 (g), 468; R. § 14, 498; § 20, 500; § 25, 501; E. § 2, 518; § 35, 542; C. § 2, 555; § 4, 558. _See also_ Artistic work, Sculpture. Modification. _See_ Alteration. Molds, 266, 268, 270, 376; § 25 (d), 476; § 27, 477; E. § 2, 518; § 35, 543; C. § 4, 558. Monaco, 214, 321, 322, 323, 330, |413|. Monaghan _v._ Taylor (1886), 193. Monarch Book Co. _v._ Neil (1900), 244. Monastic copyists, 8. Monckton _v._ Gramophone Co. (1910), 62. Monkswell bill, 31. Monograms, 70; § 18, 472. Monologues, 171. Monopoly copr., 13, |50|, 54, 255. Monroe-Smith Amendment, 117. Montalembert, 9, 453. Montenegro, 62, 124, 321, 322, |414|. Montevideo congress, 331; convention, 331, 419; text of, 633-36. _See also_ International, Pan Amer. Union and names of countries. Moore, T., 341. Moore _v._ Edwardes (1903), 176. Morocco, 418. Morrill rpt. (1873), 353. Morris _v._ Coleman (1812), 441. Morris, E. J., bills (1858-60), 348. Morrison _v._ Pettibone (1897), 272. Mortgage, right to, 46, 48; § 42, 482. Morton, J. P., 352. Mosaics, 234. Mott _v._ Clow (1896), 237. Moving pictures, 71, 77, 163, 175, 176, 178, 211, 224, 241, 242, 328, 376; R. § 4, 496; § 8, 497; § 15, 498; E. § 1, 518; § 35, 542; C. § 2, 555; § 3 (2), 557; I. 618. Munro _v._ Beadle (1888), 262. Munro _v._ Smith (1890), 262. Murphy _v._ Christian Press Assoc. (1899), 50. Musical work, 14, |162-201|, |202-21|, 296, 375, 387; E. § 1, 517; C. § 3, 557; classification and definition, 63, 162, 318, 326, 332, 393; § 5 (e), 468; R. § 9, 497; § 10, 498; E. 550-52; C. § 2, 555; Au. § 4, 580; I. 603; P. 633, 634, 637, 649; acts, 31, 32, 36, 37, 182, 193, 195, 208, 379, |550|, |552|; E. § 11 (4), 525, 547; duties, 288; excepted from manufacturing clause, |167|; formalities, 86, 119, 127, 139, 144, 151, 166, 168, 189, 206, 393, 406, 407, 409; § 11, 470; § 18, 472; § 19, 473; § 25 (e), 477; R. § 18, 499; § 44, 45, 508; C. § 3, 557; § 26, 568; Au. § 13, § 14, 584; § 32, 588; I. 614; infringement, 195, 266, 268, 394; § 25 (b), 476; E. § 11 (4), 525, 549, 551; Au. § 46, 591; § 51, 593; manufacture, 168; performance, 59, 165, 183, 185, 322, 327, 394, 404; R. § 23, 500; E. § 1 (3), 518; Au. § 14, 584; I. 606; prior publication, 183, 185; special rights, 42, 43, 45, 162, 163, 164, 169, 198, 202, 392; § 1 (e), 465; E. § 1, 517, 518; C. § 2, 556, 577; Au. § 13, 14, 584; I. 613. _See also_ Adaptation, Arrangement, Dramatico-musical, License, Mechanical, Notation, Term, Transcription, etc. Musical copr. Committees, 32, 196, 459. Music sheet, _See_ Sheet. Name, author's right in, 98, 100, 333; P. 639; as proof, 152, 200, 241, 319, 329, 333, 336, 378; E. § 6, 523; I. 617; P. 634, 639, 650; in application, 420, 421, 437; R. § 29, 502; § 30, 503; in copr. notice, |105|, 128, |129|, 135. _See also_ Application, Author, Evidence, Notice. Natal, 396. _See also_ South African Union. National Assembly, French, 18, 114, 398. Nat. Tel. News Co. _v._ West Union Tel. Co. (1902), 89. Nationality. _See_ Foreign author, Residence. Negatives, 36, 123, 239, 240, 245, 247, 248, 393; E. § 35, 543; C. § 2, 556; § 31, 570; Au. § 13, 584. _See also_ Photograph. Netherlands. _See_ Holland. Nethersole _v._ Bell (1903), 174. Neufchâtel, literary congress (1891), 209. Neufeld _v._ Chapman (1901), 448. New Brunswick, 383. New editions. _See_ Editions, new. New Hampshire copr. legislation, 35, 39, 194. New Jersey copr. legislation, 35, 39, 194. New South Wales, excepted in Brit. treaty, 381. _See also_ Australia. N. Y. Press Pub. Co. _v._ Falk (1894), 238. N. Y. State legislation, 35, 39, 40, 194, 239; copr. vested in, 98. New Zealand, 375, 382, |394|; E. § 35, 543. Newbery's case (1774). _See_ Hawkesworth case, 81. Newfoundland, 119, 151, 152, 160, 168, 188-90, 246, 321, 375, 382, |390|; E. § 35, 543; laws, 456. News, |89|, 103, 259, 264, 319, 328, 337, 406; I. 613; P. 651. _See also_ Telegraph. Newspaper, 63, |87|, 90, 131, 245, 266, 267, 279, 280, 328, 337; § 5 (b), 467; § 19, 473; § 31 (b), 479; R. § 6, 497; E. § 15, 527; § 35, 543; C. § 14 (6), 564; § 22, 567, § 30, 569; Au. § 4, 581; I. 611; P. 651; reports, 68, 70, |91|, 103, 183, 264, 376, 377; E. § 2, 519; § 20, 533; C. § 4, 558; P. 634, 639, 651. _See_ News, Periodical, Photographs. Next of kin. _See_ Heirs. Nicaragua, 112, 124, 198, 323, 332, 334, |336|, 340, |422|, 423, 643, 652. Nicholls _v._ Parker (1901), 236. Nicklin, Philip H., 344, 454. Nicols _v._ Pitman (1884), 254. Nigro, Joanes, 13. Nigrus, Peter, 10. Non-copyright matter, 65, |76|, 81, 241, 255, 257, 261, 288, 433; E. § 2, 519. North Carolina copr. legislation, 35. Norway, 112, 124, 197, 200, 248, 316, 317, 321, 323, 330, 340, |407|. Notation, musical, 43, 45, 164, 169, 170, 202, 217, 392; § 1 (e), 465; Au. § 13, 584. Notes by hearer, 90. Notice copr., 36, 74, 121, 125, 126, |127-36|, 150; § 9, 469; R. § 22, § 23, 500; § 26, 501; C. § 3 (2), 557; artistic work, |225|, 227, 230, 232, 235, 242; collections, 81; date, |129|, 133, 230; dramatic and musical works, |166|; early, 19; false, 77, |134|, 135, 142, 148, 276, 279, 280, 513; § 29, § 30, 478; Au. § 55, 595; foreign works, |133|, 146, 155, 366; form, |127|, 131, 166, 225; § 18, 472; R. § 24, § 25, 501; before 1909, 36, 37, |128|; in British Empire, 150, 151, 373-97; in other countries, 400-29; _interim_ works, 126, |135|, 147, 148; § 9, 469; § 22, 474; R. § 26, 501; C. § 23, 568; name, 127, |129|, 166; § 18, 472; R. § 24, § 25, 501; substitution of name, 105, 135; § 46, 483; R. § 43, 508; omission of, 118, 121, |130|, 134, 146, 230, 234, 235, 236, 253, § 20, 473; penalty for removal, 134, 276; § 29, 478; periodicals, 88, 130, |131|, 319, 328, 400, 403; § 19, 473; I. 612; position, 37, 130, |131|, 132, 166; § 19, 473; C. § 3 (2), 577; pseudonymous work, R. § 24, 501; renewals, 118; separate volumes, 132; successive editions, 134; translations, 78, 397. Notice of authorization; Au. § 29, 588; of reproduction, 123; E. § 3, 520; of reservation, 201, 313, 412; oral work, 29, 200, 264, 377, 397, 398-429; E. § 2 (1), 519; C. § 4, 558; Au. § 33, 589; performance, 150, 182, 183, 195, 199, 200, 319, 394, 397; Au. § 32, 588; I. 614; to prohibit importation; E. § 14 (1) 525 (5) 526. _See also_ Customs. Notice of user. _See_ Mechanical reproduction. Nova Scotia, 383. Novelization, 42, 61, 169, 172, 322, 328, 376, 431; § 1 (b), 465; E. § 1 (2), 518; C. § 2, 556; Au. § 13, 584; I. 614. Novelties noncopr., 72, 223, 224; R. § 12, 498; § 16, 499. Official publications. _See_ Government publications. Ohio copr. legislation, 39, 194. Ojibwa Indians copr., 41. "Old sleuth" cases, 262. Omission of notice. _See_ Notice. Omissions from musical works, E. § 19 (2), 530 (7), 532. _See also_ Alterations. Opera, 162, 163, 166, 168, 182, 196, 404; R. § 8, § 9, 497. Operettas, 162, 163; R. § 8, § 9, 497. Oral work (addresses, lectures, sermons, etc.), 42, |59|, 61, 63, 67, 70, |90|, 333, 337, 377, 393, 403; § 1 (c), 465; § 5 (c), 468; R. § 7, 497; E. § 1 (2), 518; § 17, 529; § 20, 533; § 35, 543; C. § 2, 556, 557; Au. § 4, 581; § 15, 584; § 25, 587; § 33, 589; I. 612; P. 634, 639, 651; assignable, Au. § 24, § 26, 587; deposit, 86, 144; § 11, 470; R. § 18, 499; infringement, 264, 266, 267; § 25 (b), 476; Au. § 45, § 46, 591; mechanical reproduction, E. § 35, 543; C. § 2, 556; notice, 91, 151, 264, 377; E. § 2, 519; C. § 4, 558; Au. § 33, 589; publication, 91; E. § 1 (3), 518; Au. § 15, § 16, § 17; registration, 91, 139; Au. § 66, 599; § 74, 600; terms, 119, 401. _See also_ Newspaper reports. Orange Free State, 160. _See also_ South African Union. Oratorios, 59, 164, 166, 168; § 28, 478. _See also_ Dramatico-musical work, Musical work. Orchestral work, 169, 187. _See also_ Musical work. Order, works on. _See_ Employer. Orders in Council, 31, 379; E. § 23, 534; § 26, 537; § 28, 538; § 29, 539; § 30, 540; § 32, 541; § 35 (3), 543; C. § 43, 576. _Ordinances de Moulins_, 18. Ordnance surveys, 123. Oregon copr. legislation, 39, 194. Origin, country of. _See_ Country of origin. Originality, 68, 81. _See also_ Merit. Ornamental letters or scrolls noncopr., 224; R. § 16, 499. Osgood _v._ Allen (1872), 82, 85. Osgood _v._ Aloe (1897), 128. Össler, Dr. Jacob, 11. Osterrieth, Albert, 461. _Our Young Folks_ case, 82. Outright sale, |106|, 116, 117, 118, 364, 434, 442. Owner, rights of, 45, 46; E. § 7, 523; § 9, 524; § 21, 533; C. § 9, 561. _See also_ Author, Corporation, Proprietor. Ownership of copr., 3, 5, 50, |95-113|, 238, 269, 318, 327, 333, 336, 377, 378, 393, 437, 577; § 8, 469; § 62, 488; R. § 2, 495; E. § 5, 521; § 6 (3), 522; § 16, 529; § 17 (2), 529; § 29, 539; C. § 7, 560; § 30, 569; § 36, 574; Au. § 18, 585; § 19, 586; § 25, 587; § 43, 591; I. 606-09; P. 633, 637, 638, 650. Oxford Univ. Press, 121. Oxford University. _See_ University deposit. Page. _See_ Sheet. Paintings, 29, 37, 223, 228, 229, 232, 234, 238, 246, 247, 248, 250, 274, 326, 332; R. § 12, 498; E. § 35, 542; C. § 2, 555; Au. § 4, 580; I. 603; P. 634, 637, 649; formalities, 150, 388; § 26, 568; in public place, 264, 376; E. § 2 (1), 519; C. § 4, 558; infringement, § 25 (b), 245, 266, 267; § 25 (b), 476; reproduction by _tableaux_, 242. _See also_ Artistic work, Material object. Palmer _v._ DeWitt (1872), 180. Palmerston, Ld., 346. Palsgrave, J., 21. Pamphlets, 70, 290, 326, 332; R. § 4, 496; E. § 15, 527; C. § 23, 568; Au. § 4, 580; I. 603; P. 633, 637, 649. Pan Amer. Union, conferences, 331, 334, 336; conventions, 112, 152, 250, 332-37; texts of, 633-652. _See also_ International conventions and names of cities. Panama, 124, 152, |423|. _See also_ Canal Zone. Pandects, 17. Pantomimes, 175, 198, 326; I. 603. Papal grants, 17. Pappa Alesio, 16. Paraguay, 124, 317, 331, 332, |426|. Paris acts, 185, 197, 209, 249, 296, |321|, 322; I. 628; text, 603-631; conference (1896), 209, 321; literary congress (1878), 314. _See also_ International conv., University. Park & Pollard _v._ Kellerstrass (1910), 258. Parke, Baron, 2, 4. Parkinson _v._ Laselle (1875), 149. Parliament, acts of, |24-34|, early petitions to, 23. _See also_ British Empire. Parliamentary papers, 459. Parody, 190. Partnerships, 273, 286, 403, 435; R. § 33, 505. _See also_ Joint Authors. Parton, James, 348. Parts of work, 64, |76|, 87, 90, 92, 131, |132|, 143, 145, 173, 243, 257, 287, 318, 403; § 3, 467; E. § 35, 543; C. § 22, 567; Au. § 4, 580; § 20, 586; I. 611; P. 650. _See also_ Composite, Extracts, Quotation. Passages permitted in collections, E. § 2 (1), 519. _See also_ Extracts, Fair use, Quotations. Passing off. _See_ Fraud, Intent. Patents, 12, 14, 18, 21, 54, 93, 161; acts, 33, 161, 379; E. § 22, 534; commissioner of, 96, 308, 309; registration as, 37, 223, 310. _See also_ Congressional Committees, Congressional hearings. Patterns, 93; chart, noncopr., 70. Patterson _v._ Ogilvie (1902), 192, 273. Payne tariff, 288. Pearsall-Smith licensing plan, 51, 204, 449. Peary cases, 89, |102|. Peckham, Justice, 273. Penal provisions, 275. _See also_ Punishment. Penalties, 15, 19, 22, 24, 36, 272, 273; E. 549; Au. § 57, 596; failure to deposit, 36, 143, 150-52, 374, 378; § 13, 470; E. § 15 (6), 527; false affidavit, 158; § 17, 472; false entry, notice, etc., 37, 134, 276; § 29, 478; C. § 11, 562; Au. § 55, 595; infringement, 6, 12, 13, 16, 37, 195, 196, 272, 276, 379, 389; E. § 28, 478; § 9 (2), 524; § 11, 524, 547, 551; C. § 13, 562; Au. § 50-54, 592-595. _See also_ Damages, Punishment, Remedies. Pennsylvania copr. legislation, 35, 39, 194. Pentateuch, 14. Perforated music-rolls. _See_ Mechanical Instruments. Perform, right to. _See_ Playright. Performance, 67, 177, 379; E. § 2 (3), 520; § 11 (2), 524; § 35 (2), 543, 545; C. § 4 (3), 559; § 13 (2), 563; Au. § 16, 585; and publication, 180-85, 197, 376; E. § 1 (3), 518; C. § 2, 556; I. 608; assignment, 189; E. § 24 (1), 534; gratuitous or for profit, 43, 45, 59, 164, 165, 186, 190, 199, 202, 275, 404; § 1 (e), 465; § 28, 478; permissive, 60, 164, 404; § 28, 478; registration, 184. _See also_ Dramatic, Dramatico-musical work, Notice, Playright, Publication, Representation. Periodicals, 63, 64, 76, 87, 90, 148; § 3, § 5 (b), 467; R. § 6, 497; E. § 35, 542; C. § 30, 569; Au. § 4, 580; copr. catalogue of, 300; copyrightable by numbers, 88; R. § 36, 506; P. 650; formalities, 131, 138, 139, 143, 387, 410; § 12, 470; § 19, 473; R. § 36, 506; E. § 15 (7), 527; C. § 22, 567; importation, 286; § 31 (b), 479; manufacturing provision, 88, 143, 153, 154, 286; § 12, 470; § 15, 471; R. § 36, 506; pirated material in, C. § 14 (6), 564; renewal, 115; § 23, 474. _See also_ Composite work, Newspaper, Notice, Title. Periodical contribution, 64, 71, 76, 87, 99, 148, 319, 328, 398, 435; § 3, 467; R. § 4, 406; E. 545; C. § 30, 569; Au. § 4, 580; § 22, § 23, 586; I. 611, 612; P. 634, 639, 651; formalities, 28, 100, 122, 131, 138, 139, 142, 143; § 12, 470; R. § 37, 506; in other countries, 398-429; renewal, 104, 115; § 23, 474; republication, 393, 433, Au. § 22, 586. _See also_ Composite work, Parts, Serial publication, Term. Perpetuity, copr. in, 13, 18, 25, 26, |123|, 124, 183, 377, 398, 401, 407, 420-22, 429. Persia, 323, |418|. Personal use. _See_ Private use. Peru, 110, 294, 323, 331, 332, |427|, 636, 643, 652. Petitions, 23, 341, 346, 347, 348, 351, 355, 359, 455. _See also_ License. Philip _v._ Pennell (1907), 92. Philippine Islands, 39, 108, 270, 418; § 34, 481. Phonograph. _See_ Mechanical reproduction. Photo-engravings, 138, 139, 144, 153, 155, 156, 226, 228, 229; § 15, 471; § 16, 472; R. § 19, 500; § 27, 502. Photo-lithograph, E. § 35, 542; C. § 2, 555. Photographs, 30, 36, 37, 64, 113, 219, 223, 224, 226, 228, 229, |240|, 243, 245, 250, 274, 320, 326, 328, 332, 336, 377, 393; § 5 (j), 468; R. § 15, 498; § 19, 500; E. § 35, 542; C. § 2, 555; Au. § 4, 580; I. 605; P. 634, 637, 649; alterations, 244; as publication; E. § 1 (3), 518; duties, 288; formalities, 127, 140, 141, 144, 150, 152, 225, 226, 227, 241, 307, 391, 406, 407, 409; § 11, 470; § 18, 472; § 61, 487; R. § 19; § 20, 500; § 25, 501; § 40, 507; C. § 3 (2), 557; § 26, 568; in other countries, 248, 398-429; in public place, 264, 376; E. § 2 (1), 518; C. § 4, 558; infringement, 37, 243, 245, 266, 267; § 25 (b), 476; on order, |238|; E. § 5 (1), 521; C. § 7, 560; Au. § 39, 590; special term, 122, 247, 248, 328, 377, 394, 403, 406, 407, 409, 416, 417; E. § 21, 533; C. § 31, 570; I. 606, 610. _See also_ Artistic work, Negatives. Pictorial illustrations. _See_ Illustrations. Pierce & Bushnell Co. _v._ Werckmeister (1896), 233. Pierce, President, 347. Pigeons, messages, 396. Pins noncopr., 224; R. § 16, 499. Piola-Caselli, Eduardo, 461. Piracy, Pirated copies. _See_ Infringement. Pitt Pitts _v._ George (1896), 292, 296. Place of notice. _See_ Notice. Place, public. _See_ Public place. Plans, 70, 247, 248, 326; E. § 2, 518; § 15 (7), 527; C. § 2, 555; § 3 (2), 557; § 4, 558; Au. § 4, 580; I. 604; P. 634. _See also_ Architectural drawings. Plastic work. _See_ Sculpture. Plates, 153, 266, 268, 270, 393; § 15, 471; § 25 (d), 476; § 27, 477; R. § 27, 502; E. § 5 (1), 521; § 7, 523; § 11 (2), 524; § 35, 543, 552; C. § 2, 556; § 9, 561; § 13 (2), 563; § 31, 570; Au. § 13, 584. _See also_ Mechanical instruments. Plats, 223; R. § 11, 498. Platt, O. H., 50, 278; bill (1889), 361. Playing cards, 242. Playright, 8, 36, 42, 45, 61, |162-202|, 319, 328, 376, 393, 459; § 1 (d), (e), 465; E. § 1 (2), 518, 545; C. § 2, 556, 577; Au. § 14, 584; § 16, 585; § 25, 587; I. 614; assignable, Au. § 24; § 26, 587; formalities, 195, 391, 394, 397; Au. § 32, 588; § 65, 599; I. 614; infringement, 190-94; Au. § 45, § 46, 591; in other countries, 197, 398-429; state protection, 39, 194. _See also_ Dramatic, Dramatico-musical, Infringement, License, Mechanical reproduction, Performance. Poems, 58, 70, 81, 404; R. § 4, 496; I. 614. Police powers, 319, 334, 337; I. 618; P. 640, 652. _See also_ Court. Political speeches. _See_ Oral work. Pope _v._ Curl (1741), 92. Porto Rico, 39, 108, 270, 425; § 34, 481. Portraits, 113, |238|, 244, 248, 393, 404; E. § 5, 521; C. § 7, 560; Au. § 4, 581; § 38, 590. Portugal, 111, 124, 323, 340, |411|, 490. Possession, copies found in, 273. _See also_ Damages, Seizure. Post card, 224, 229, 289; R. § 16, 499. "Post Office Directory." _See_ Kelly _v._ Byles. Post Office regulations, 279, 282, 515; § 33, 480. Posters. _See_ Circus posters. Posthumous works, 92, |102|, 104, 113, 115, 122, 152, 321, 328, 377; § 23, 474; E. § 17, 529; C. § 28, 569; Au. § 17, 585; I. 610; in other countries, 398-429. Postmaster-General. _See_ Mails, Post Office. Pouillet, Eugène, 460. Practice, rules of U. S. Supreme Court, 266, 268, |491|; § 25, 477. Prefaces, 71; R. § 5, 496. President. _See_ Proclamations and names of Presidents. Press Assoc. _v._ Reporting Agency (1910), 89. Press Pub. Co. _v._ Falk (1894), 238. Press Pub. Co. _v._ Monroe (1806), 45, 48. Preston, Senator, 344, 346. Price-list copr., 88. Price limitation, 14, 15, 17, 24, 27, 46, 49, 55, 57, 207; C. § 6, 559. Prima facie evidence. _See_ Evidence. Prime, S. Irenæus, 348. Prince Albert _v._ Strange (1849), 187, 238. Print, right to, 42, 45,163; § 1 (a), 465. Printer's lien, 449; privileges, 10-17, 19, 20, 21. Printing, early, 10-23. _See also_ Manufacturing provisions. Prints, 64, 127, 223, 224, 226, 309; § 5 (k), 468; § 18, 472; R. § 16, 409; § 25, 501; E. § 35, 542; C. § 2, 555; § 26, 568; Au. § 4, 580; § 40, 590; [goods] acts (1787, 1789, 1794), 27, 246; (Ireland) act, 28, 246. Private copr. acts, 27, 38. Private performance. _See_ Performance. Private use, 259; importation for, 281, 290,293, 294; § 31 (d); E. § 11, 524; C. § 13, 562; reproduction for 264, 376, 404; E. § 2, 518; C. § 4, 558. Privately printed works, 53. Privileges. _See_ Printers. Procedure, |265-277|; § 25, 475; § 26, § 27, 477; § 34-39, 481; § 40, 482; E. § 7, 523; U. S. Supreme Court rules, 491. _See also_ Court jurisdiction, Remedies. Proceedings of societies. _See_ Publications of. Processes. _See_ Methods. Proclamations, Presidential, 108, 111, 202, 339, |489|; § 8, 469; R. § 2, 495. Produce, right to, 42, 45, 61, 163, 376; § 1 (d), 465; E. § 1, 518; C. § 2, 556. Profits, 171, 265, 267, 448; § 25 (b), 476. Projected work noncopr., 86. Proof. _See_ Evidence. Proofs, printer's, 432, 442. Property rights, 45, 47, 314; differentiated, 46; contractual, 97, 430, 436-43; natural, 3, 4, 9, 43, 62; § 2, 467. _See also_ Common law, Material object, Ownership, Proprietor, Rights, etc. Proprietor, 95-113; § 8, 469; definition, 23, 96, 101, 110; liability, 126, 193, 304; E. § 2, 520; C. § 4, 559; Au. § 51, 593; non-qualified, 110; R. § 2, 495; periodical contribution, 110, 104, 115; § 23, 474; C. § 30, 569; Au. § 22, 486; renewals, 104, 106, 115, 117; § 23, 474; § 24, 475; R. § 47, 509. _See also_ Assigns, Author, Composite work, Employer, Owner, Property, Publisher, Rights. Prussia, 311, 402. _See also_ Germany. Pseudonymous work. _See_ Anonymous. Public documents. _See_ Government publications. Public documents bill (1895), 37. Public domain, works in, 65, 118, 127, 170, 243, 244, 256, 319, 320, 329; § 7, 468; I. 605, 619, 620; P. 639, 650. _See also_ Non-copyright matter. Public place, works in, 264, 376, 404; E. § 2, 518; C. § 4, 558. Publication, 47; definition, |53|, 59, 91, |126|, 179, 181, 197, 214, 224, 231, 233, |234|, 243, 250, 322, 327, 376, 389; E. § 1, 518; C. § 2, 557; Au. § 4, 581; I. 608, 609; date, 52, 109, |119|, 126, 129, 138, 139, 148, 179, 248, 318, 333, 511; § 62, 488; R. § 29, 502; § 32, 504; § 33, 505; I. 611; P. 638, 650; enforced, 29, 49, 123, 377; E. § 4, 521; C. § 6, 560; Au. § 77, 601; initial step, 5, 52, 126, |133|, 136; § 9, 469; R. § 1, § 3, 495; § 22, 500; E. 545; Au. § 16, 585; of registered unpublished work, 145; R. § 21, 500; rights before, 44, 47. _See also_ First, Simultaneous, Exhibition, Performance, Government, Republish, Serial, Term. Publications of societies, 53, 88, 412; R. § 6, 497; I. 611; P. 638, 650. Publish, right to, 42, 45, 61, 163, 333, 376; § 1 (a), 465; C. § 1, 518; Au. § 4, 581; P. 633, 637, 649. Published work, definition, 197, 250, 322, 327; R. § 23, 500; I. 608; P. 650. Publisher, author's representative, 96, 129, 329; C. § 24, 568; I. 617; assumed proprietor, 95, 403; E. § 6 (3), 523; early relations, 8-23; equity in renewal, 117; relations with author, 409, 430-52. _See also_ Assigns, Author, Contract, Proprietor, Renewal. Publishers Association of Great Britain and Ireland, 458. Publishers' petitions. _See_ Petitions. _Publishers' Weekly_, 355, 357, 358. Pulte _v._ Derby (1852), 446. Punishment, 194, 196, 275, 276, 379, 404; § 28, 478; C. § 13, 562; § 14, 564; spiritual, 17. Putnam, G. Haven, 9, 16, 31, 51, 360, 362, 453, 454, 455. Putnam, G. Palmer, 28, 346, 347, 348, 355. Putnam, Herbert, 308, 366. _See also_ Librarian of Congress. Putnam _v._ Pollard (1880), 40. Pütter, Johann Stephan, 12, 461. Puzzles noncopr., 71, 224; R. § 5, 496; § 16, 499. Pynson, Richard, 19. Quality. _See_ Merit. Quantity not essential, 73, 254. Queensland. _See_ Australia. Quotation, |173|, 190, 253, 256, |259|. _See also_ Extracts. Racing charts copr., 70. Railroad time-tables copr., 70. Randolph, A. D. F., 350. Ratification, Attorney General's opinion, 337; of conventions, 112, 320, 322, 329-332, 334, 336, 337, 340; I. 628, 630; P. 635, 640, 647, 652. Ratisbon, Bishop of, 10. Ravenna, Peter of, 13. Reade, C., 457. Reade _v._ Bentley (1858), 434, 444. Reade _v._ Conquest (1862), 172. Reading, public. _See_ Recitation. Rebinding, 159, 263, 287, 514. Rebuses noncopr., 71, 224; R. § 5, 496; § 16, 499. Receipt for copies, 137, 145, 304; § 14, 471; § 55, 484; Recipes copr., 70, 75. Reciprocity provisions, 37, 107, 202; § 1 (e), 465; § 8 (b), 469; E. § 29, 539; C. § 34 573; Au. § 62, 598. _See also_ Proclamations. Recitation, 90, 178, 200, 264, 377, 408; E. § 2, 518; § 35, 542; C. § 2, 555. Re-copyright objectionable, 230. Record & Guide Co. _v._ Bromley (1910), 128, 136. Record books, blank, noncopr., 71; R. § 5, 498. Register of Copyrights, 37, 96, 105, 136, 144, 297, 299, 300, 302, 303, 308; § 10, 469; § 13, 470; § 45, 482; §§ 47-49, 483; §§ 50-51, 53-57, 484-85. _See also_ Assistant. Registers (records) of coprs., 22, 150, 300, 303, 310; § 54, 484; C. § 22, 567; Au. § 64, 599; § 71-73, 600. _See also_ Copyright records. Registrar of Copyrights, 310, 389; Au. § 4, 581; § 9, 582. Registration, |96|, 126, 133, 136, 143, 150, 189; § 10, 469; § 12, 470; R. § 1; § 3, 495; §§ 17-23, 499-501; application, 63, 136, |137|, 168, 207, 511; § 5, 467; R. § 29, 502; §§ 30-31, 503; C. § 7 (5), 561; assignment, C. § 7 (3), 560; certificates, 136, 140, 168, 304, 333; § 55, 484; Au. § 69, § 70, 599; I. 638; early provisions, 6, 16, 22, 24, 28; errors, C. § 40, 575; Au. § 72, § 73, 601; false, C. § 11, 562; Au. § 76, 601; fees, |141|, 306; § 61, 487; R. § 40, 507; C. § 39, 574; foreign works, 146; in British Empire, 24, 150, 184, 189, 246, 310, 312, 373-97; C. §§ 22-27, 567-69; Au. §§ 64-76, 599-601; in other countries, 151, 310, 399-429; P. 638, 642-48; interim, 147; joint authorship, 101; new editions, 134; oral work, 59, 119; Pan American, 335; P. 642-46; periodicals, 88, 138, 387; periodical contributions, 100; R. § 37, 506; renewal, 115, 116; § 23, 474; § 24, 475; separate volumes, 132, 306; § 61, 487; unpublished works, 119, 144, 179; R. § 1, 495; on publication, 145. _See also_ Application, Certificate, Formalities. Regulations, Copr. Office, 136, 299, 303, 455, 495-510; § 53, 484; for importation, 279, 282, 290, 513; § 33, 480; E. § 14, 525; international bureaus, 319, 329, 335; I. 623; P. 645; Supreme Court, 268, 269, 372, 491-94; § 25, 477. Reichardt _v._ Sapte (1893), 187. _Reichsanzeiger_, 403. Re-importation, 159, 283. _See also_ Importation. Remedies, 44, 195, 206, |265-77|, 378, 379: § 25, 475; § 28, 478; E. §§ 6-13, 522-25; C. § 8-15, 561-65; Au. §§ 45-57, 591-97. _See also_ Damages, Infringement, Penalties, Punishment. Remittances to Copr. Office, 141; R. § 40, 508. Renault, Prof. L., 325. Renewal, 14, 24, 35, 36, 38, 58, |114-124|, 148, 246; § 23, 474; R. §§ 46-48, 509; contributions, 104, 115; § 23, 474; R. § 47, 509; estoppel of, 118; extension of subsisting, |117|, 140; § 24, 475; R. § 46, 509; formalities, 115, 118, 140, 141, 306, 309; § 23, 475; § 61, 487; R. § 46, § 47, 509; ownership, |104|, |106|, 116, 117, 435, 447; § 23, 474; § 24, 475; R. § 46, 509; subsisting copyright, |116|, 117, 140, 141; § 24, 475; § 61, 487; R. §§ 46-48, 509; unpublished works, 119, 179. _See also_ Extension, Registration, Term. Repeal, 283, 379; § 63, 488; E. § 26, 537; § 36, 544, 546-47; C. § 44, § 45, 576, 578-79. Replevin suits, 46, 273, 274. _See also_ Suits. Report, right to, Au. § 15, 584; § 33, 589. _See also_ Oral work. Report, Register of Copyrights, 299, 302, 303, 324, 366; § 49, 483; § 51, 484; Director of International Bureau, 320, 329; I. 624. Reports on copr., 32, 344, 346, 348, 353, 362, 369, 371. _See also_ Names of Congressmen, Election, Law, Newspaper reports, Oral work. Representation, right of, 37, 42, 45, 163, 197; § 1 (d), 465; R. § 23, 501; E. § 35, 543; C. § 2, 556; § 4, 559; Au. § 4, 580; I. 608, 613, 618; P. 640, 652. _See also_ Performance, Playright. Representatives, House of. _See_ Congressional; _also_ names of Representatives. Representatives, legal. _See_ Assigns, Heirs. Reprint, right to, 42, 45, 163; § 1 (a), 465. Reprints of copr. works, 134, 293, 294, 385. Reproduce, right to, 42, 45, 61, 163, 333, 376; § 1 (d), 465; E. 1, §, 518; C. § 2, 556; Au. § 34, 589; § 41, 591; P. 633, 637, 650. Reproductions of artistic works, 64, 223, 228, 234, 235, 404; § 5 (h), 468; R. § 13, 598; E. § 2, 518; § 24, 534; § 35, 542; C. § 2, 555; § 4, 558; I. 613; P. 634, 639, 651. _See also_ Infringement, Mechanical reproduction. Republish, license to, 29, 123, 377, 412, 415; E. § 4, 521; C. § 6, 559; Au. § 77, 601; _See also_ License. Reputation of author, 46, 85, 100, 244, 274, 404, 435, 443. Research, use for, 264, 376; E. § 2 (1), 518; C. § 4, 558. Reservation of copr. _See_ Interim copyright, Notice of reservation. Residence, 107, |108|, 138, 139, 151, 200, 246, 373, 375, 376, 387, 388, 405, 420; § 8, 469; R. § 2, 495; § 29, 502; § 30, 503; E. §§ 25-27, 536-38; § 29, 539; § 34, 544; C. § 2 (4), § 3, 557; § 34, 573. _See also_ Country, Foreign author. Restraint of trade, 57. _See also_ Limitation. Retroactive effect, 328; E. § 24 (1), 534; I. 615. Revenue act (1889), 31, 33, 293, 379. Reversion in periodical contributions, 29, 122, 440. _See also_ Assignment, Heirs. Reviews, 87, 264, 376; R. § 6, 497; E. § 2, 518; § 15 (7), 527; § 35, 542, 545; C. § 4, 558; § 22, 567; § 30, 569; Au. § 4, 581. Revised Statutes. _See_ U. S. laws, Canada. Rex _v._ Bokenham (1910), 277. Rex _v>._ Willets (1906), 277. Rhenish Celtic Sodalitas, 11. Rhode Island copr. legislation, 35. Richard III, 19, 20. Rifformatori, 15, 16. Rights, 42-52, 218; §§ 1-3, 465-67; § 8, 469; E. §§ 1-5, 517-22; C. § 2, 556; Au. § 13, 584; P. 633, 634, 637, 638, 649, 650; existing and substituted, E. § 24, 534, 545; C. § 33, 571, 577. _See also_ Common law, Consent, Property, Proprietor, Material object, Dramatize, Mechanical reproduction, Translate, etc. Rinehart _v._ Smith (1903), 273. Rio de Janeiro conference, 331, 334; convention, |334|, 336, 419; text of, 642-48. _See also_ International, Pan Amer. Union, and names of countries. Ritchie, P. E., 389. Road books copr., 69. Robertson, J., 346. Robinson, W. E., bill (1882), 356. Rolls, perforated. _See_ Mechanical instruments. Roman literature, 8. Rome literary congress (1882), 314. Roosevelt, President, 368, 371. Rosebery's, Ld., speeches reported _verbatim_, 68. Rosmini, Enrico, 461. Röthlisberger, Ernest, 330, 462. Roumania, 323, |414|. Routledge _v._ Low (1868), 109, 374. Rowlett, J., private copr. grant, 38. Royal Copr. Commission. _See_ Commission. Royal Sales Co. _v._ Gaynor (1908), 70. Royalties, 123, 124, 199, 201, 202, 206, |207|, 209, 211, 268, 377, 385, 412, 435, 437, 439, 440, |447-51|; § 1 (e), 466; § 25 (e), 477; E. § 3, 520; § 19, 530-33; § 24, 534; C. § 6, 559; § 33, 571; § 41, 575. _See also_ Licenses. Rules. _See_ Regulations. Russell _v._ Smith (1848), 176, 189, 191. Russia, 124, 197, 214, 295, 323, |409|. Saake _v._ Lederer (1909), 107. Sabellico, 10, 13. St. Columba, 9. St. Leonards, Ld., 1. St. Mark's library, 16. Sale, 10, 42, 45-49, |54-57|, 127, 163, 265, 333, 378; § 1, 465; C. § 4, 559; § 13, 562; P. 633, 637, 649; as publication, 53, 127; § 62, 488; Au. § 4, 581; control of, 5, |54|, 60; withdrawal from, 49. _See also_ Assignment, Material object, Outright. Salvador, 112, 316, 332, 334, 336, 340, |422|, 423, 643, 652. Sampson & Murdock Co. _v._ Seaver Radford (1905), 255. San Domingo. _See_ Dominican Republic. San Marino, |413|. Sanborn, Judge, 47. Sandwich Islands. _See_ Hawaii. Sarpy _v._ Holland (1908), 313. Scandinavian countries, 248, |407|. _See also_ Denmark, Norway, Sweden. Scenario, 145, 176; R. § 18, 500. Scenes, infringing, 174, 191. Scenic composition, 175, 178; E. § 35 (1), 542; C. § 2, 555; Au. § 4, 581. _See also_ Dramatic work. Schedules, British, 377, 379; E. § 2, 519; § 36, 544, 546; C. § 33, 571, 576. Schemes noncopr., 61. _See also_ Arrangement, Methods. Schlesinger _v._ Bedford (1890), 173. Schlesinger _v._ Turner (1890), 173. Schöffer, 10. Scholz _v._ Amasis (1909), 176. School books. _See_ Education. Schoolcraft, private copr. grant, 38. Schott, Johann, 11. Schumacher _v._ Wogram (1888), 130, 237. Scientific work, 64, 127, 140, 154, 156, 223, 224, 225, 228, 229, 326, 333, 388; § 5 (i), 468; § 15, 471; R. § 14, 498; I. 603; P. 634, 637, 649. Scope of copr., 42-62, 318, 319, 326, 327, 332, 375, 387, 392, 393; § 1-3, 465-67; E. § 1-5, 517-22; C. § 2, 556; Au. § 13-15, 584; I. 606; P. 633, 634, 637, 649. Score-card noncopr., 70. Scotland, E. § 12, 525, 549, 552. _See also_ British. Scribner _v._ Straus (1908), 55, 56; other cases, 260. _Scriptorium_, 8. Scrolls, ornamental, noncopr., 224; R. § 16, 499. Scrutton, T. E., 181, 458. Sculpture, 27, 64, 66, 127, 145, 151, 223, 224, 225, 226, 229, 243, 245, 246, |247|, 248, 250, 264, 266, 267, 326, 332, 370, 388; § 5 (i), 468; § 11, 470; § 18, 472; § 25 (b), 476; R. § 12, § 14, § 15, 498; § 20, 500; § 25, 501; E. § 1 (3), 518; § 2, 518; § 35, 542; C. § 2, 555; § 3 (3); § 4, 558; § 26, 568; Au. § 4, 480; I. 603; P. 634, 637, 649; acts, 27, 246. _See also_ Architecture, Artistic work. Seal of copr. office, 141, 300, 303; § 52, 484. Sealed deposit of author's name, 420, 421, 427. Search warrants, E. 552; C. § 15, 564; Au. § 52, 593. Searches, 306, 309; § 61, 487; R. § 49, 509; Au. § 71, 600. Secretary of the Treasury, 121, 279, 282, 289, 290, 513; § 32, § 33, 480. _See also_ Treasury. Seditions. _See_ Immoral works. Seizure, 22, 196, 268, 272, 273, 274, 279, 282, 283, 296, 319, 322, 328, 329, 334, 337, 389, 409, 424, 514, 525; § 32, 480; E. § 7, § 9, 523; § 11, 524; § 14, 525, 549, 550, 553; C. § 9, 561; § 13, 562; § 14, 563; § 15, 564; § 21, 566; Au. § 49, § 50, 592; § 52, 593; § 53, 594; § 56, 596; § 61, 597; I. 616, 618; P. 640, 652. _See also_ Forfeiture. Selections. _See_ Extracts, Quotations. Sell, right to. _See_ Sale. Senate. _See_ Congressional, Ratification, _also_ names of Senators. Serial publication, 47, 87, |120|, 318, 322, 328, 439; R. § 6, 497; E. § 15 (7), 527; I. 611; P. 638, 560. Sermons. _See_ Oral work. Servia, |414|. Seymour, E., 351. Shadow-trick noncopr., 242. Shanghai, 417. Share Certificate Book, _in re_ (1908), 150. "Shaughraun" case, 149. Sheet, 69, 70, 254, 288; R. § 4, 496; E. § 15 (7), 527; Au. § 4, 580. Sheldon, Isaac E., 350. Shepard _v._ Taylor (1911), 258. Shepley, J., 82, 85. Sherman, J., bill (1872), 352, 363. Shiras, Justice, 54. Shorthand reproduction, 68, 70, 254. Siam, 42, 62, 124, 152, 160, 323, |417|. Signature of artist 7, 390. _See also_ Name. Sierra Leone, 397. Similarity, 173, 255, 260, 263, 326. Simonds, W. E. (1890), 362. Simultaneous publication, 109, 148, 150, 160, 327, 333, 337, 376, 387, 393; E. § 35 (3), 543; C. § 2 (3), 557; Au. § 5, 581; § 13, § 14, § 15, 584; I. 607; P. 638, 650. _See also_ First publication. Singapore, 395. Situations, 171, 173, 174, 176, 191. _See also_ Dramatic work. Sketch, 136, 152, 176, 248, 250, 264, 326, 333, 376; E. § 2, 518; C. § 4, 558; I. 604; P. 634, 637, 649. _See also_ Artistic, Dramatic, Musical work. Slater, J. H., 233, 458. Sleight-of-hand, not dramatic work, 163; R. § 8, 497. "Sleuth" cases, 261. Slingsby _v._ Bradford Co. (1905), 258. Smithsonian Institution, 36, 301. Smoot, Senator, bill (1907-08, '09), 370, 371. Snow _v._ Laird (1900), 245. Snow _v._ Mast (1895), 130. Social Register Association _v._ Howard (1894), 262. _Société des gens de lettres_, 314. _Société des gens de lettres_ v. _Egyptian Gazette_ (1889), 419. Società Italiana d. Autori _v._ Gramophone Co. of London (1906), 213. Societies, importation by, 281, 290; § 31 (d), 479; C. § 17, 565. _See also_ Publications of. Solberg, Thorvald, 308, 324, 366, 367, 453, 455. _See also_ Register of copyrights. Songs, 71, 82, 86, 163, 167, 168, 175, 176, 191, 206, 208; R. § 4, 496; § 9, 497; § 10, 498. _See also_ Dramatic, Dramatico-musical, Lyrical work. Sosius brothers, 8. Source, acknowledgement of, 322, 328, 333, 337; I. 612; P. 634, 639, 651. Sousa, 220. South African Union, 321, 375, 381, 382, 396; E. § 35, 543. _See also_ British Empire. South America. _See_ Latin America. South Australia. _See_ Australia. South Carolina copr. legislation, 35. Southey _v._ Sherwood (1817), 86. Spain, 62, 94, 112, 124, 152, 198, 317, 318, 320, 323, 330, 331, |410|, 461, 489, 636. Speech. _See_ Oral work. Spencer, Herbert, 50, 351, 457. Speyer, J. of, 13. Spofford, A. R., 297. Sporting tips, noncopr., 70. Springer Lith. Co. _v._ Falk (1894), 244. Stab, Johann, 11. Stage effects, 162, 173, 198, 326; R. § 8, 497; I. 603. _See also_ Dramatic, Scenic. Stall, Dr. Sylvanus, 288. Stannard _v._ Harrison (1871), 239. Star Chamber decree, 21. Star maps copr., 223; R. § 11, 498. State legislation, 33, 35, 39, 194, 366, 391, 392; Au. § 4, 581; § 8, 582; § 12, 583. State courts. _See_ Court. Stationers' Company, 15, 21; Hall, 22, 24, 150, 184, 189, 190, 246, 310, 312, 374. Statistics copr., 69. Statue, 66, 245, 266, 267; § 25 (b), 476; Au. § 41, 590. _See also_ Artistic work, Sculpture. Statute law, 2, 6, 7, 22, 24-41. _See also_ specific references, Anne, Common law, etc. Statute law revision act, 27. Statutory forms, copr., 69. Stedman, E. C., 348, 359. Stephen, Sir James, 30, 183, 455, 456, 459. Stereotype, E. § 35 (1), 543; C. § 2, 556. _See also_ Plates. Stern _v._ Remick (1910), 127, 130. Stern _v._ Rosey (1901), 205. Steuart, Arthur, 46, 371. Stevens _v._ Benning (1854), 444. Stevenson, Archer, 350. Stone, E. § 35 (1), 543; C. § 2, 556. _See also_ Lithographs, Plates. Stone _v._ Long (1903), 442. Storm, J. B., 350. Story, J., 92, 252. Story _v._ Holcombe (1847), 81. Stowe _v._ Thomas (1853), 77. Straits Settlements, 395. Strasburg, 11. Straus _v._ American Pub. Assoc. (1904, '08), 57. Structure noncopr., E. § 35, 542; C. § 2, 555; § 10, 562. _See also_ Architecture, works of. Subject-matter of copr., 12, |63-94|, 223, 224, 318, 321, 326, 379, 387, 392; §§ 4-7, 467, 468; R. §§ 4-16, 496-99; E. § 35, 542; C. § 2, 555; Au. § 4, 580; I. 603-06, 610; P. 633, 637, 649. Subject. _See_ Citizenship, Foreign, Residence. Subsisting copr. _See_ Existing copr., Extension, Renewal, Term. Substantial importance, 73. Substituted rights. _See_ Rights, Schedules. Substitution of name. _See_ Name, Notice. Sugden, Sir E., 445. Suits, 24, 26, 36, 46, 122, 143, 150, 266, |269-77|, 283, 319, 373, 374, 386, 396, 399, 416, 438, |491-94|; § 12, 470; § 27, 477; §§ 34-40, 481-82; § 63, 488; R. § 3, 495; E. § 7, 523, 549, 552; Au. § 48, 592; § 74, 600; I. 607, 617. _See also_ Costs, Damages, Infringement, Limitation, Penalties, Punishment, Remedies, etc. Sulzer, W., bill (1908, '09), 370. Summary proceedings, E. §§ 11-13, 524-25, 549; C. § 13, 562; Au. §§ 45-61, 591-98. _See also_ Penalties, Remedies, Seizure. Sumner, C., 347. Sumner, T. H., 38, 121. Superintendent of pub. docs., 300, 305; § 57, 485. Suppression of books, Au. § 77, 601. _See also_ License, Republish. Supreme Court, U. S. _See_ Court jurisdiction, Regulations. Sweden, 112, 124, 200, 248, 316, 317, 321, 323, 330, 340, 368, |407|, 490. Sweet _v._ Cater (1841), 444. Swift, 23, 92. Switzerland, 111, 124, 199, 214, 316, 317, 318, 320, 323, 330, |406|, 489; I. 622. Synopsis, insufficient, R. § 18, 500. _See also_ Abridgment. System. _See_ Arrangement, Schemes. _Tableaux vivants_, 162, |241|; R. § 8, 497. Tabulations, 69, 70; R. § 4, 496; E. § 15 (7), 527; C. § 2, 555; § 3 (2), 558. Talfourd, Serjeant, 28, 456. Tariff. _See_ Customs. Tasmania, 381. _See also_ Australia. Tate _v._ Fullbrook (1908), 176. Tauchnitz series, 293. Taylor _v._ Pillow (1869), 446. Taxation, 47, 452. Telegraph codes, 70; messages, 88, 93, 94, 124, 394, 396, 406, 410. Temporary copr., 387-90; C. § 23, 568. _See also_ Interim. Terence, 8. Term, 7, 35, 51, |114-24|, 134, 180; § 9, 469; § 23, 474; § 24, 475; anonymous and pseudonymous works, 101, 328; I. 610; artistic work, 230, 245-49, 374-429; Au. § 36, 590; collective work; C. § 30, 569; commencement, 119, 120, 318, 333, 377; § 9, 469; E. § 19, 529; C. § 31, 570; Au. § 16, 585; I. 611; P. 638, 650; dramatic and musical, 183, 188, 200; dramatization, 58, 169; early provisions, 11-19, 24, 27, 28, 35; government publications, 123, 377, 398, 410, 412, 420; E. § 18, 529; in British Dominions, 33, 121-23, 373-97; E. § 3, 520; C. § 5, 559; Au. § 17, 585; § 35, 591; in other countries, 121, 122, 398-429; interim protection, 146; § 21, § 22; R. § 28; international, 124, 188, 318, 327, 328, 329, 331, 333, 335, 337; E. § 29, 539; C. § 35, 573; I. 607, 609, 631; P. 633, 638, 644, 650; joint authors, 120, 122, 137, 188, 377, 387; E. § 16, 528; C. § 29, 569; Au. § 17, 585; limitation of assignments, 61, 113, 377, 378; E. § 5, 521; § 24, 534; C. § 7, 560; § 33, 571; oral work, 119, 401; periodical contributions, 28, 104, 115; § 23, 474; photographs, 122, 247, 248, 328, 377, 394, 403, 406, 407, 409, 416, 417; E. § 21, 533; C. § 31, 570; I. 610; posthumous work, 122, 328, 377; § 23, 474; E. § 17, 529; C. § 28, 569; Au. § 17, 585; I. 610; mechanical records, E. § 19, 529; C. § 31, 570; subsisting works, 377; E. § 24, 534; successive parts, 120, 318, 333; I. 610; P. 638, 650; translation, 58, 78, 318; Au. § 30, 588; I. 610; unpublished work, 119, 179, 180, 230. _See also_ Extension, Notice, Perpetuity, Renewal. Theatre, unlawful use, 193, 394; E. § 2, 520; C. § 4, 559; Au. § 51, 593. _See also_ Dramatic work, Infringement, party liable, License. Thomas _v._ Lennon (1883), 187. Thompson _v._ Amer. Law Bk. Co. (1903), 258. Thompson _v._ Stanhope (1774), 92. Thornton, Sir E., 349, 356. Thring, G. H., 457. Ticker tape news, 89. Ticket, railway, noncopr., 70. Tillinghast, J. L., 346. Time-tables copr., 70. _Times_ (London) case, 90. _Times_ (N. Y.), Peary copr., 89, 102. Tinsley _v._ Lacy (1863), 173. Title, 12, |82|, 86, 88, 94, 138, 171, 173, |191|, 260, |261|, 416, 428; conformity of, 137, 192, 261; R. § 29, 502; § 30, 503; registration, 37, 86, 136, 304, 390, 396; § 55, 484; R. § 30, 503. _See also_ Ownership. Title abstracts copr., 69. Topographic charts. _See_ Maps. Toole _v._ Young (1874), 172. Tools noncopr., 72, 223; R. § 12, 498. Toy noncopr., 172, 223; R. § 12, 498; soldiers, protected, 247. Trade-mark, 75, 99, 223, 237, 263, 386; R. § 16, 499; acts, 40, 83; C. § 32, 570; title as, 83, 88. _See also_ Title. Trade name, 102; R. § 24, 501. Trading stamps noncopr., 70. Transcriptions, 45, 169, 170, 198. _See also_ Musical work. Transfer of copr. _See_ Assignment, Ownership; _also_ Lithograph. Translate, right to, 42, 45, 47, |58|, 61, 78, 124, 146, 170, 322, 328, 333, 392, 417; § 1 (b), 465; E. § 1, 518; § 29, 539; C. § 2, 556; Au. § 13, 584; § 30, § 31, 588; I. 605, 610, 612, 620; P. 633, 634, 637, 639, 649, 650; British limitation, 78; in other countries, 398-429. Translations, 29, 64, |77-80|, 155, 159, 288, 318, 319, 321, 326, 333, 337, 438; § 6, 468; E. § 1 (2), 518; C. § 35, 573; Au. § 28, 587; § 29, 588; I. 604, 613; P. 634, 639, 650; in other countries, 78, 397-429. _See also_ Dramatization, Foreign works, Notice of reservation. Transpositions, 170, 198, 392; R. § 10, 170; Au. § 13, 584. _See also_ Musical work. Transvaal, 160, |397|. _See also_ South African Union. Treasury decisions, 168, 283-88, 291. _See also_ Regulations, Secretary of the Treasury. Treaties, 111, 202, 295, 312, 313, 319, 329, 339, 347, 349; § 1 (e), 466; I. 620. _See also_ International conventions, Proclamations, names of countries. Tree _v._ Bowkett (1896), 174. Trengrouse _v._ "Sol" Syndicate (1901), 254. Trevers, Peter, 21. Tribonian, 8. "Trilby" cases, 82, 171, 174. Trinidad, 391. Trinity College. _See_ University deposit. Trotting records copr., 70. Tucker, J. R., bill (1886), 359. Tunis, 198, 214, 316, 318, 320, 323, 330, 397, 398, |418|. Turkey, 415. Turner _v._ Robinson (1860), 232. Twain, Mark, _See_ Clemens, S. L. Type, forms of, noncopr., 224; R. § 16, 499. Type-setting. _See_ Manufacturing provisions. Typewritten deposit, 143; R. § 18, 499; C. § 26, 568. Typographical unions, 156, 158, 358, 361, 363. Unauthorized publication. _See_ Consent, Infringement, Seizure, etc. Uncopyrightable matter. _See_ Non-copyright. Underselling. _See_ Price, limitation of. Unfair competition, 85, 192, 260, 262, 263. _See also_ Fair use, Infringement, Title. United Book Co. _See_ Fraser _v._ Yack. United Dictionary Co. _v._ Merriam (1908), 134. United States copr. history and laws, 35-41, 341-72; scope, 42-61; subject-matter, 63-93; ownership, 95-112; term, 114-210; formalities, 125-50; manufacturing provisions, 153-59; dramatic and musical, 162-95; mechanical reproduction, 202-21; artistic, 222-46; infringement, 251-64; remedies, 265-77; importation, 278-92; copr. office, 297-310; duties, 288-90; international, 112, 212, 317, 318, 323, 324, 325, 332, 334, 337, 339, 420; internat. movement, 341-72; literature, 453-56; code of 1909, 465-88; proclamations, 489-90; Supreme Court rules, 491-94; Copr. Office regulations, 495-510; Application form, 511-12; Treasury and P. O. regulations, 513-16. _See also_ Constitution, Court jurisdiction, Regulations and specific subjects. University copr., 24, 26, 123, 377, 380; E. § 33, 541; act (1775), 26, 27; E. § 33, 541; deposit, 22, 150, 151, 374, 378; E. § 15 (2), (4), 527; of Oxford, 19; of Padua, 15, 16; of Paris, 9, 17. Unpublished work, 4, 25, 44-48, 61, 86, 113, 166, 180, 187, 225, 227, 238; § 2, 467; § 11, 470; R. § 17-21, 499-500; I. 603; deposit, 144, 226, 412; § 11, 470; R. § 18-20, 499-500; dramatic and musical work, 119, 165, 179, 187; I. 613; in British Empire, 61, 151, |182|, 375, 379, 387, 392; E. § 1, 517; § 16 (2), 528; § 31, 541; § 35 (4), 544; C. § 2, 556; § 26, 568; Au. § 7, 582; not asset in bankruptcy, 452; registration, 144, 145, 179; § 11, 470; R. § 21, 500; term, 110, 179, 230; title, 85. _See also_ Manuscript, Oral work. Unrecognized authorship, 427, 428. Uruguay, 62, 124, 323, 331, 332, |426|. Use. _See_ Fair use, Limitation, Private use. Van Dyke, H., 360, 454. Van Nostrand, D., 350. Variations, 170, 198. _See also_ Musical work; _also_ Title. Vend, right to. _See_ Sale. Venetia imprint, 16. Venezuela, 124, 323, |429|. Venice, 13. Verification, unfair use for, 255. _Verlagsrecht, getheiltes_, 46. Version, right to make, 42, 45, 58, 80, 170-73; § 1 (b), 465. _See also_ Translations, etc. Vevey literary congress (1901), 209. Victor Talking Machine Co. _v._ The Fair (1903), 50. Victoria, Queen, 238. Victoria. _See_ Australia. Vienna literary congress (1881), 314. Virginia copr. legislation, 35. Vocal work. _See_ Dramatico-musical, Musical work. Voiding of copr. _See_ Forfeiture. Volumes, Separate, |132|, 306, 318; § 61, 488; I. 611; P. 638, 650. Vouchers, 72. _See also_ Forms. Wage tables copr., 70; R. § 4, 496. Wagner _v._ Conried (1903), 181. Wales, National lib. deposit; E. § 15, 527. _See also_ British. Walker _v._ Globe. _See_ Globe _v._ Walker. Walpole's "Castle of Otranto," 87. Walter _v._ Lane (1900), 68. Walter _v._ Steinkopff (1892), 89, 259. Ward _v._ Beeton (1875), 445. Ward, Lock & Co. _v._ Long (1906), 441. Warne _v._ Routledge (1874), 445. Warne _v._ Seebohm (1888), 173. Warrants. _See_ Search. Washburn, C. G., bills (1908, '09), 44, 370, 371. Webster, Noah, 35, 344. Webster Dictionary cases, 261. Weldon _v._ Dicks (1878), 83. Welsh, James, 361. Werckmeister _v._ American Lithograph Company, (1902), 235; (1904), 235; (1907), 225, 232; _v._ Springer Lithograph Company, (1894), 234. West Pub. Co. _v._ Lawyers' Pub. Co. (1894, '97), 258. West Pub. Co. _v._ Thompson Co. (1897), 258; (1910), 132, 259. Western Australia. _See_ Australia. Western Union Tel. Co. _v._ Call Pub. Co. (1901), 44. Wheaton _v._ Peters (1834), 40, 41, 44, 149. Wheeler _v._ Cobbey (1895), 272. White, R. Grant, 454. White _v._ Bender (1911), 257. White-Smith _v._ Apollo Co. (1906, '08), 54, 204. White-Smith _v._ Goff (1910), 116. Widow, widower. _See_ Heirs. Will. _See_ Heirs. Willfully. _See_ Intent, Knowledge. William IV, 27. Wilson, James Grant, 355. Winchester, Boyd, 317. Winslow, Reginald, 459. Wisconsin copr. legislation, 39, 194. Withholding of work. _See_ Publication, enforced, Republish. Witnessing, 106, 389. Woman, married, E. § 16 (4), 529. Woodcuts, 8, 98, 223; R. § 13, 498; E. § 35, 542; C. § 2, 555; Au. § 4, 580. _See also_ Engravings. Wooster _v._ Crane (1906), 442. Words, 75, 85, 130, 262; for music, 70, 121, 188, 326; R. § 4, 406; R. § 10, 498; E. § 19(2), 530. _See also_ Dramatic, Dramatico-musical, Musical works, Title. Woven fabrics noncopr., 223; R. § 12, 470. Wrappers, 71; R. § 5, 496. Wright, Carroll D., 456. Wright _v._ Eisle (1903), 242. Writ of error, 269, 272; § 38, 481. Writings, 35, 64, |66|, 94, 215, 326, 410; § 4, 467; I. 603; P. 633, 649. Wynken de Worde, 21. Year book, E. § 35 (1), 542; C. § 30, 569. Young, J. Russell, 96. The Riverside Press CAMBRIDGE . MASSACHUSETTS U . S . A . Transcriber's Notes: Use of hyphens and punctuation was standardized. Obsolete and archaic spellings were retained, including words prefixed with 'un' and 'non.' Italics are indicated with underscores. The pipe (|) surrounds page numbers in bold in the index. The pointing hand icon is indicated as -->. Intentional blank spaces in forms and incomplete dates are indicated with underscores, e.g. 'January 1, 19__.' Footnotes were moved to the end of the section in which the anchor occurs. Sidenotes were moved to the beginning of the paragraph to which they relate and are surrounded by braces. Duplicate sequential sidenotes were deleted when, in the original, they were repeated as the text continued from one page to the following. In the original book the text of the Berne and Berlin Conventions (Appendix III) is presented in two-column format. The Berlin Convention text is in order, but publisher reconfigured the text of the Berne Convention was so that sections addressing the same issue could be read side-by-side. In this e-book, the texts were separated, and sidenotes that apply to both Conventions are presented in each. No attempt was made to reorder the text of the Berne Convention. In the Table of Laws and Cases, the last entry for 1908, Harper v. Kalem, is missing its citation in the original. Additional corrections: in the Foreword: 'ackowledgments' to 'acknowledgments' in Table of Contents: Section XIII, '48' to '248' ... Berne convention, 1886, 248 ... in Chapter XI: 190: 'ipse facto' to 'ipso facto' in Chapter XIII: 223: 'Coypright' to 'Copyright' in Chapter XIV: 258: 'Slinsgby' to 'Slingsby' in Chapter XVI: 287: 'Amercan' to 'American' in Chapter XX: 397: 'similiar' to 'similar' in Chapter XXI: 423: 'Panaman' to 'Panamanian' in Appendix I: 475: 'separateately' to 'separately' in Appendix II: 519: 'situate' to 'situated' and 'bonâ fide' to 'bona fide' 589: 'build' to 'building' in Appendix IV: 636: 'Boliva' to 'Bolivia' in the Chronological Table of Laws and Cases: 658: 'Blatchf.' to 'Blatch.'--for consistency of abbreviation 661: 'Encylcopædia' to 'Encyclopædia' 668: 'Kingdon' to 'Kingdom' in the Index: 'Canada ... C. § 25, 55;' to 'Canada ... C. § 2, 555;' 'Canada ... existing works, C. §§ 33-157;' to 'Canada ... existing works, C. § 33, 571-2;' 'Dramatico-musical ... infringement, ... § 28.' to '... § 28, 478.' 'Limitation ... § E. 10' to 'Limitation ... E. § 10' 'Mechanical reproduction ... R. § 44; § 45, 408;' to '... § 44, § 45, 508;' 'Paintings ... in pubic' to 'Paintings ... in public' 'Residence ... C. § 2 (4), § 3, 447' to 'Residence ... C. § 2 (4), § 3, 557' duplicate entry 'Sarpy _v._ Holland (1908), 313.' deleted 
53541	----	Transcriber's Note. Apparent typographical errors have been corrected. The use of hyphens and of accents has been rationalised. Italics are indicated by _underscores_ and bold font by =equal signs=. Small capitals have been replaced by full capitals. "Oe" ligatures have been removed. A notice of other works on shipping has been moved to the end of the book. In the Table of Contents the heading "APPENDICES" has been shifted to precede the lines that list the appendices themselves. Text in smaller font in the main body of the work (mostly comprising comments by the courts on particular cases) has been indented. Appendix I (A Summary of the Navigation Laws of the United States) has a separate author and its own Table of Contents. Its sections and subsections are each preceded by two blank lines. Appendix II (The Merchant Marine Act of 1920) comprises 39 sections with section 30 being divided into subsections 30(A) to 30(X). These subsections, as well as the sections of the appendix, are each preceded by two blank lines. THE LAW OF THE SEA SHIPPING SERIES TRAINING FOR THE STEAMSHIP BUSINESS EDITORS: EMORY R. JOHNSON PH.D., SC.D. Dean of the Wharton School of Finance and Commerce, University of Pennsylvania. ROY S. MACELWEE, PH.D. Director of the U. S. Bureau of Foreign and Domestic Commerce. THE LAW OF THE SEA A MANUAL OF THE PRINCIPLES OF ADMIRALTY LAW FOR STUDENTS, MARINERS, AND SHIP OPERATORS BY GEORGE L. CANFIELD OF THE MICHIGAN BAR AND GEORGE W. DALZELL OF THE BAR OF THE DISTRICT OF COLUMBIA WITH A SUMMARY OF THE NAVIGATION LAWS OF THE UNITED STATES BY JASPER YEATES BRINTON [Illustration: Publisher's Mark] D. APPLETON & COMPANY NEW YORK LONDON 1921 COPYRIGHT, 1921, BY D. APPLETON AND COMPANY PRINTED IN THE UNITED STATES OF AMERICA EDITORS' PREFACE This is the third volume of a series of manuals dealing with the business of ocean shipping and transportation. The first volume published dealt with steamship traffic operation and was written by Professor G. G. Huebner. The second volume was upon "Marine Insurance," the author being Professor S. S. Huebner. In the first volume published, the following preface appeared: "This volume upon the management of ocean steamship traffic is the first of a series of manuals designed to assist young men in training for the shipping business. The necessity for such a series of manuals became evident when, as a result of the great war, the tonnage of vessels under the American Flag was, within a brief period, increased many fold. To carry on the war and to meet the demands of ocean commerce after the war, the United States Government, through the Shipping Board and private shipyards, brought into existence a large mercantile marine. If these ships are to continue in profitable operation under the American Flag, the people of the United States must be trained to operate them. Steamship companies, ship-brokers and freight-forwarders must all be able to secure men necessary to carry on the commercial and shipping activities that make use of the ships. A successful merchant marine requires ships, men to man the ships, and business organization to give employment to the vessels. "In its Bulletin upon 'Vocational Education for Foreign Trade and Shipping' (since republished as 'Training for Foreign Trade,' Miscellaneous Series No. 97, Bureau of Foreign and Domestic Commerce, for sale by the Superintendent of Documents), the Federal Board for Vocational Education includes among other courses suggested for foreign trade training two shipping courses upon subjects with which exporters should be familiar, namely, 'Principles of Ocean Transportation' and 'Ports and Terminals.' Although such general courses are helpful to the person engaging in the exporting business, a training for the steamship business as a profession requires much greater detail in the knowledge of concrete facts of a routine nature. An analysis was made of the various divisions of the steamship office organization and it was suggested to the United States Shipping Board that as no literature existed of sufficient practicability and detail several manuals should be written covering the principal feature of shore operations. "The response of the Shipping Board was hearty. The Shipping Board appointed Mr. Emory R. Johnson of its staff, then conducting an investigation of ocean rates and terminal charges, as its editor. The Federal Board for Vocational Education designated Mr. R. S. MacElwee, then engaged in the preparation of studies in foreign commerce. Before the project was completed Mr. Johnson severed his connection with the Shipping Board in 1919, and January, 1919, Mr. MacElwee became Assistant Director of the Bureau of Foreign and Domestic Commerce, Department of Commerce. The interest of the editors in the project did not terminate, however, and their close coöperation has been voluntarily continued out of conviction that the works will be helpful. "The books have been written with a view to their being read by individual students conducting their studies without guidance, also with the expectation that they will be used as class text-books. Doubtless colleges, technical institutes and high schools having courses in foreign trade, shipping business and ocean transportation, will desire to use these volumes as class texts in a manner outlined in 'Training for the Steamship Business,' by R. S. MacElwee, Miscellaneous Series 98, Bureau of Foreign and Domestic Commerce, Superintendent of Documents, Washington, D. C. It is expected that evening classes and part-time schools, organized under the patronage of the Federal Board for Vocational Education, Chambers of Commerce, and other interested organizations will find the manuals useful. Should these volumes accomplish the desired purpose of giving the American people a somewhat greater proficiency in the business of operating ships, they will have proven successful." This volume on "The Law of the Sea" is intended to present the principles of admiralty law in concise and practical form. It is a manual for the student, the owner, or the master of a vessel who may desire to acquire information concerning the main facts and principles of maritime law without attempting to acquire such a mastery of the subject as is possessed by an admiralty lawyer. THE EDITORS AUTHORS' PREFACE This book is not an exhaustive treatise or a compendium of authorities. It is designed to be an outline of the subject primarily for the student, more especially the student layman who desires to inform himself of the general principles of admiralty law. It is impracticable in a work of this sort to reprint the statutes relating to the various subjects of admiralty jurisprudence, since the federal statutes alone would constitute a volume more extensive than this. The salient features of the statutes have been noticed and references given to all of them. They are to be found in the Revised Statutes, the Compiled Statutes, the Statutes at large, and in the compilation of Navigation Laws published by the Bureau of Navigation, U. S. Department of Commerce. The subject of marine insurance is treated in another volume of this series and is, therefore, omitted here. In the chapter on Collision, we have not discussed the fixing of liability under particular circumstances of navigation, such as collision between vessels meeting, vessels passing, etc. While these matters are treated in most text-books, their discussion belongs largely to navigation and is useful only in a legal treatise for the purpose of determining liability after an accident has occurred. It could not guide the reader to avoid collision liability, and is therefore omitted in a work intended rather as a guide for the avoidance of trouble than as a dictionary of remedies. For the same reason, only the most cursory sketch of admiralty procedure has been given. That is the province of the proctor, who must be consulted when litigation has become necessary. The reader will find that a few subjects treated in the body of the work are also covered in Appendix I (Summary of the Navigation Laws). This is due to the fact that the appendix was prepared for independent publication. The repetitions are not numerous and, as the treatment is different in form, it will be found advantageous to the student rather than otherwise. Acknowledgment is made to Miss Florence A. Colford of the District of Columbia bar, for valuable and painstaking aid. G. L. C. G. W. D. CONTENTS CHAPTER PAGE EDITORS' PREFACE v AUTHORS' PREFACE ix I. MARITIME LAW 1 1. General Maritime Law 1 2. Sources in United States 1 3. Courts 2 4. Jurisdiction 2 A. The Ship 2 B. The Waters 3 5. Maritime Contracts and Torts 4 6. Personality of Ship 5 7. Limits of Liability 5 8. Equitable Principles 6 9. General Considerations 6 II. TITLE AND TRANSFER 10 1. How Title Acquired 10 2. Registration and Regulation 10 3. Shipbuilding Contracts 10 4. Not Within Admiralty Jurisdiction 12 5. Enrollment and Registration 12 6. Ships Entitled to 12 7. Incidents of Enrollment or Registration 13 8. How Obtained 14 9. Recording of American-built Foreign Ships 16 10. Name 16 11. Sale 17 12. Transfer of Flag and Sales to Foreigners 17 13. Admiralty Sales 18 14. Sales by Trustees and Executors 19 15. Sales by Mortgagee 19 16. Sales by Master 19 17. Sale of Ship at Sea 22 18. Appurtenances 23 19. Warranties and Representations 23 III. OWNERS AND MANAGERS 25 1. Who May Be 25 2. Part-owners 25 3. Corporations 27 4. Majority Interest 28 5. Minority Interest 28 6. Suits Between Part-Owners 30 7. Authority of Owner 30 8. Obligation of Owner 30 9. Liability of Owner 31 10. Temporary Ownership 33 11. Managing Owner 36 12. Compensation and Lien 37 IV. THE MASTER 39 1. Appointment and General Authority 39 2. Personal Liability 41 3. Restriction on Authority 41 4. Rights of Master 43 5. Wages 43 6. Lien 44 7. Relations to Cargo 45 8. Power to Sell or Mortgage Cargo 46 9. Power to Sell Vessel 50 10. Power to Create Liens 50 11. Duties on Disaster 51 12. Log Book and Protests 52 V. SEAMEN 54 1. Favored in Maritime Law 54 2. Who Are Seamen? 54 3. Contract 55 4. Wages Secured 55 5. Forfeitures and Punishments 55 6. Personal Injuries 56 7. Duties in Disaster 58 8. Offenses of Seamen 59 9. When Entitled to Leave Ship 60 10. Desertion 60 11. Self-Defense 61 12. Lien for Wages 61 13. Shipping Articles 63 14. Wages and Effects 64 15. Protection and Relief 66 VI. CARRIAGE BY SEA 69 1. Common and Private Carriers 69 2. Liabilities 69 3. Seaworthiness 70 4. Loading and Stowage 72 5. Wreck or Stranding 75 6. Arrival and Discharge 76 7. Freight and Demurrage 77 8. Unfair Freight Rates 79 9. Passengers 79 10. Reciprocal Duties 79 11. Baggage 81 12. Personal Injuries 81 13. Loss of Life 83 VII. CONTRACTS OF AFFREIGHTMENT, BILLS OF LADING AND CHARTER PARTIES 86 1. Definitions 86 2. Seaworthiness 87 3. Deviation 88 4. Perils of the Sea 89 5. Fire 89 6. Restraint of Princes 90 7. Freight 91 (a) Dead Freight 91 (b) When Freight Is Earned 91 8. Contracts of Affreightment 91 9. Bills of Lading 92 10. Statements in Bills of Lading 96 11. Negotiability of Bills of Lading 98 12. Duration of Carrier's Liability 99 13. Exceptions in Bills of Lading 99 14. Valuation 99 15. Notice of Claim 100 16. Nature and Effect of Charter Party 100 17. Subcharters 101 18. Provisions in Charter Parties 101 (a) Safe Port 101 (b) Insurance 102 (c) Redelivery 102 (d) Cancellation and Withdrawal 102 (e) Breakdown Clause 102 19. Lien for Freight and Charter Hire 103 20. Liability for Loss or Damage 104 21. Demurrage and Laydays 105 22. Breach of Charter 106 23. Dissolution of Charter 107 VIII. LIABILITIES AND LIMITATIONS 112 1. Liabilities of Ship 112 2. Liabilities of Owner 112 3. Liabilities of Charterer 113 4. Liabilities of Mortgagee 113 5. Liabilities of Underwriters 113 6. Theories of Limitation 114 7. Contract Limitations 115 8. The Federal Statutes 115 9. "Privity or Knowledge" 117 10. Harter Act 119 11. Insurance 123 12. Single Ship Companies 123 IX. MARITIME LIENS 125 1. How Created 125 2. Essential Value 127 3. Independent of Notice of Possession 127 4. Secret 127 5. Diligence Required 127 6. Rules of Diligence 127 7. Recording Liens on "Preferred Mortgage" Vessels 128 8. Limited to Movable Things 129 9. Priorities 129 10. Lien for Repairs and Supplies 131 11. Not Sole Remedy 134 12. How Divested 134 13. State Liens 135 14. Builders' and Mechanics' Liens 136 15. Foreign Liens 136 16. Enforcement of Liens 137 X. MORTGAGES AND BONDS 138 1. Definitions 138 2. Bottomry Bonds 138 3. Respondentia 140 4. Necessity for Advances 141 5. Mortgages 141 6. Are Mortgages Maritime Contracts? 141 7. When Postponed to Other Liens 142 8. Form 143 9. Recording 144 10. Rights of Mortgagee 144 11. Liabilities of Mortgagee 145 12. Transfer and Payment 145 13. Foreclosure 145 XI. COLLISION 148 1. Definition 148 2. Liability Dependent on Negligence 148 3. Tests of Negligence 149 4. The Regulations 150 5. Damage to Ship 151 6. Damage to Cargo 152 7. Damage to Crew and Passengers 155 8. Contribution 155 9. Division of Damages 155 10. Lien 156 11. Limitation of Liability 157 12. Remedies 157 13. Evidence 158 XII. Towage and Pilotage 159 1. Definition 159 2. Towage Service 159 3. Compensation 160 4. Duty of Tug 160 5. Duty of Tow 165 6. Negligence 165 7. Liability for Damage 168 A. As Between Tug and Tow 168 B. To Third Parties 169 8. Pilots 172 9. Duties 173 10. Authority 174 11. Compensation 174 12. Negligence 175 13. Liability of Ship 177 XIII. SALVAGE AND GENERAL AVERAGE 180 1. Definitions 180 2. What May Be Salved 180 3. Salvor's Lien 181 4. Amount of Reward 182 5. Who May Be Salvors 183 6. Distinction Between Towage and Salvage 184 7. Distribution of Salvage Award 185 8. Distribution of Liability for Payment 186 9. Statutory Regulations 187 10. Instances of Salvage Services 187 11. Distinction Between General and Particular Average 189 12. Essential Elements 189 13. Instances of General Average 190 14. The Adjustment 191 XIV. CRIMES COMMITTED AT SEA 193 1. Definition 193 2. Admiralty Criminal Jurisdiction 193 3. Place of Trial 194 4. Offenses Not Consummated on Shipboard 194 5. Penalties and Forfeitures 195 6. Federal Criminal Code 196 7. Concurrent Jurisdictions 197 8. Limitations of Prosecutions 198 9. Piracy 198 10. Barratry 199 11. Failure to Equip with Radio Telegraph 200 12. Failure to Disclose Liens 200 13. Mutiny 200 XV. WRECKS AND DERELICTS 202 1. Definitions 202 2. Wrecks Under the Common Law 202 3. Wrecks Within Admiralty Jurisdiction 204 4. Liabilities of Owner of Wreck 205 5. Rights of Landowner 205 6. Owner's Rights 206 7. Rights of Government 206 8. Derelicts 207 9. Finders 207 XVI. WHARFAGE AND MOORAGE 209 1. Definition 209 2. Right to Erect 209 3. Duties of Proprietor 210 4. Rights of Proprietor 212 5. Wharfage Compensation 213 6. Lien 214 7. Injuries to Wharves 214 8. Anchorage 215 9. Obstructions to Navigation 216 XVII. ADMIRALTY REMEDIES 218 1. Proceedings in Rem 218 2. When Proceedings in Rem Will Lie 219 3. The Libel 219 4. The Writ or Process 220 5. Owner's Rights 220 6. Default 220 7. Interlocutory Sales 221 8. Intervenors 221 9. Costs and Expenses 221 10. Proceedings in Personam 222 11. Process in Personam 222 12. Proceedings in Limitation of Liability 222 APPENDICES I. SUMMARY OF NAVIGATION LAWS OF THE UNITED STATES 225 II. THE MERCHANT MARINE ACT OF 1920 263 III. PROTEST 290 TABLE OF CASES 291 INDEX 299 THE LAW OF THE SEA CHAPTER I MARITIME LAW =1. General Maritime Law.=--Navigation and commerce by sea are regulated by maritime law. This is a branch of jurisprudence which developed out of the necessities of the business with which it has to deal. It is, therefore, as old as navigation itself and many of its rules can be traced back to antiquity. It extends over all navigable waters and is enforced by courts of admiralty. This law is to be found in the statutory laws of different countries, the decisions of the courts and text-books on the subjects involved. Back of the laws of each particular country is what is termed the general maritime law or common law of the sea, which, like the common law of the land, consists of that general mass of usages and customs which exists by the universal consent and immemorial practice of those doing business by sea. It is effective within particular countries only so far as they consent to follow it, as is the case with international law, of which it is really a part. In general, however, it is recognized and enforced wherever the local laws are silent in regard to maritime transactions. =2. Sources in United States.=--In the United States, the maritime law is to be found in the Statutes or Acts of Congress and decisions of the Federal Courts. These decisions are published in the United States Reports, Federal Cases and Federal Reporter. In addition there are numerous text-books, among which may be mentioned Parsons on _Shipping and Admiralty_; Benedict's _Admiralty_; Hughes on _Admiralty_; Desty on _Shipping and Admiralty_; Spencer on _Collisions_ and Flanders on _Maritime Law_. The highest authority is, of course, to be found in the _Decisions of the Supreme Court of the United States_. =3. Courts.=--The Constitution provides that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction; this jurisdiction is confided to the District Courts, of which there are several in each state; appeals lie from their decisions to the Circuit Courts of Appeals; there are nine of these, corresponding to the nine judicial circuits into which the nation is divided; the Supreme Court has a general supervisory jurisdiction over all other courts. While parties having maritime controversies may resort to state courts in cases where the common law affords a remedy, the admiralty jurisdiction of the federal courts is so much more effective in all matters pertaining to the ship that they handle practically all the litigation on the subject. =4. Jurisdiction.=--_a. The Ship._--According to the maritime law of the United States the ship is not within the jurisdiction of the admiralty until she is completed; while she is engaged in commerce and navigation, that jurisdiction is exclusive; when she becomes a wreck and passes out of the business for which she was intended, the jurisdiction relaxes and is finally withdrawn. Therefore our admiralty does not take cognizance of matters growing out of the building of the ship nor of the controversies arising after she is broken up. It sometimes becomes a question of some difficulty whether a particular object is or is not a vessel and subject to admiralty jurisdiction. Rev. Stat., § 3, define "vessel" as including "every description of watercraft or other artificial contrivance, used or capable of being used as a means of transportation by water," and in General Cass, 1 Brown Adm. 334, it was said: The true criterion by which to determine whether any watercraft or vessel is subject to admiralty jurisdiction is the business or employment for which it is intended, or is susceptible of being used, or in which it is actually engaged, rather than size, form, capacity or means of propulsion. In one or two old cases it was held that a dredge was not a ship but the preponderance of authority is to the effect that a dredge is a ship and within admiralty jurisdiction. The question whether a raft of logs is a vessel has been variously decided. If it be a mere pile or series of floating logs it is probably not a vessel, but rafts made of cross-ties, used as a convenient mode of bringing them to market, manned by crew, who lived thereon during the voyage and propelled by the current and by poles and oars, have been held to be a ship and subject to admiralty jurisdiction.[1] So, also, a floating bathhouse, not permanently moored, but which was towed from place to place has been held to be a vessel; whereas a floating drydock, kept permanently moored, is not a vessel. The question whether barges and floats are subject to admiralty jurisdiction has been the subject of frequent adjudication, and while some old cases held that they were not, the tendency of the modern decisions is to hold that such crafts are vessels. In the Mac, 7 P. D. 126, the question was whether a hopper barge was a ship. It was decided in the affirmative by the English Court of Appeal, Lord Justice Brett saying: The words "ship" and "boat" are used; but it seems plain to me that the word "ship" is not used in the technical sense as denoting a vessel of a particular rig. In popular language ships are of different kinds; barques, brigs, schooners, sloops, cutters. The word includes anything floating in or upon the water, built in a particular form, and used for a particular purpose. In this case the vessel, if she may be so called, was built for a particular purpose; she was built as a hopper-barge; she has no motive power, no means of progression within herself. Towing alone will not conduct her; she must have a rudder; and, therefore, she must have men on board to steer her. Barges are vessels in a certain sense; and, as the word "ship" is not used in a strictly nautical meaning, but is used in a popular meaning, I think that this hopper-barge is a "ship".... This hopper-barge is used for carrying men and mud; she is used in navigation; for to dredge up and carry away mud and gravel is an act done for the purposes of navigation. Suppose that a saloon-barge, capable of carrying 200 persons, is towed down the river Mersey in order to put passengers on board of vessels lying at its mouth; she would be used for the purposes of navigation, and I think it equally true that the hopper-barge was used in navigation. _b. The Waters._--The waters included in admiralty jurisdiction are, first, the sea; second, streams in which the tide ebbs and flows; and third, waters which carry substantial water-borne commerce. The fact that a navigable stream may lie entirely within the borders of a single state and thus be unnavigable for interstate commerce, does not exclude the admiralty jurisdiction. Nice questions occasionally come before the courts in determining whether or not a particular body of water is navigable and therefore within the admiralty jurisdiction. There seems to be no precise test, beyond the capacity of the stream to carry substantial commerce. =5. Maritime Contracts and Torts.=--The general subject matter of admiralty jurisdiction is maritime contracts and maritime torts or injuries. A contract is maritime when it relates to the ship as an instrument of commerce and navigation. Thus the hiring of a master, the purchase of supplies, the charter-party or bill-of-lading, an agreement of towage, and the like are maritime contracts. The principle by which to determine whether a contract is maritime in its nature, was laid down by the Supreme Court in the case of the Belfast, 7 Wall. 624. "Contracts, claims, or service, purely maritime and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty courts." And in Insurance Co. v. Dunham, 11 Wall. 1: As to contracts, it has been equally well settled that the English rule which concedes jurisdiction, with a few exceptions, only to contracts made upon the sea and to be executed thereon (making locality the test) is entirely inadmissible and that the true criterion is the nature and subject-matter of the contract, as whether it was a maritime contract, having reference to maritime service or maritime transactions. * * * * * Perhaps the best criterion of the maritime character of a contract is the system of law from which it arises and by which it is governed. And it is well known that the contract of insurance sprang from the law maritime, and derives all its material rules and incidents therefrom. The test is not altogether definite, nor always easy to apply. As was said in Grant _v._ Poillon, 20 How. 162: "It may be difficult, if not impracticable, to state with precision the line of this jurisdiction, but we may approximate it by consulting the decisions of our own courts." A tort is a wrong, independent of contract, that is, it is the breach of a duty which is imposed by law and not by contract. A tort is maritime when it is committed on navigable waters. Injuries to sailors on shipboard, damage to cargo and collision at sea are maritime torts. Illustration of maritime torts and a distinction between land and maritime torts will be found in the chapters on Collisions and Maritime Liens, _infra_. The case of Hough _v._ Western Transportation Co., 3 Wall. 20, may be mentioned here. A vessel made fast to a wharf took fire by the negligence of the master and crew. The fire was communicated to the wharf and destroyed it with the buildings adjacent thereto. The court held that although the origin of the wrong was on the water, the substance and consummation of the injury occurred on land and the case was not within admiralty jurisdiction. Salvage and general average are, strictly, neither contract nor tort, but are within admiralty jurisdiction by virtue of the general law. =6. Personality of Ship.=--In considering the maritime law, it is important to remember that one of its underlying ideas is that the ship has a personality of her own. In the common law, or law of the land, there is a similar notion in regard to corporations; they are legal persons quite apart from the stockholders who compose them. So the ship has a legal individuality quite apart from that of her owners. She may sue in the name of her owner and be sued in her own name. The principle has been expressed by the Supreme Court: A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron--an ordinary piece of personal property--as distinctly a land structure as a house, and subject only to mechanics' liens created by a state law and enforceable in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. She acquires a personality of her own; becomes competent to contract, and is individually liable for her obligations, upon which she may sue in the name of her owner, and be sued in her own name. Her owner's agents may not be her agents, and her agents may not be her owner's agents. She is capable, too, of committing a tort, and is responsible in damages therefor. She may also become a quasi bankrupt; may be sold for the payment of her debts, and thereby receive a complete discharge from all prior liens, with liberty to begin a new life, contract further obligations, and perhaps be subjected to a second sale. Tucker _v._ Alexandroff, 183 U. S. 424, 438. =7. Limits of Liability.=--It is important in all dealings with the ship, whether by way of investment of capital, or labor, or by entrusting goods to her for carriage, or by making repairs or furnishing supplies, to remember that the ship may be both the basis and the limit of financial liability, unless her owners in some way add their personal responsibility thereto. It was appreciated at an early day in the history of navigation that capitalists would not invest in ships unless there was some limit to their liability on that account. Ships are wanderers and capitalists can seldom navigate them. No form of investment can produce such large liabilities at any time. The owners can not supervise them in person but must entrust their operations to others beyond their control. Hence, out of the necessities of the situation, the doctrine developed that the ship must be treated as an individual, responsible for her own acts, and that the owner's responsibility was limited to his investment unless he personally went beyond this protection. =8. Equitable Principles.=--The maritime law proceeds on equitable principles and endeavors to accomplish substantial justice between litigants, with brevity, celerity and simplicity. It is impatient at technicalities and cunning bargains. Its jurisdiction is not limited by any financial amount or geographical boundaries, so long as the transaction is maritime in its nature. It is quick to redress unfair dealing or oppression. There is no distinction as to the persons who may invoke its aid. It is a very important part of modern commercial law, as it was originally of the old law merchant, and therefore is very practical and responsive to the demands of business; but it has also had the benefits of the accumulated wisdom of many progressive ages before this one, and is therefore cautious about untried innovations or thoughtless experiments. Its claim to the attention of mankind rests only on the inherent equity and justice of its rules and the celerity with which they may be applied to the solution of disputes, and without these characteristics it would have been long since absorbed into the common law of the land. =9. General Considerations.=--The study of maritime law has the double attraction of historical and practical interest. It deals with the legal affairs of one of the most important phases of modern commercial activity and its problems are solved by precedents from a remote past. It is not a law which is confined within the narrow circle of the present or the limits of particular countries. It is ancient and international. At a time when this country is on the threshold of a revival of its merchant marine, and when there is also a general feeling that it is necessary to proceed to a constructive readjustment and restatement of our entire body of law, the law of the sea, which is really part of the law merchant, must not be neglected. The present is imperfectly understood when the past is forgotten and it is difficult to appreciate any rule without considering its origin. Maritime law is not an exception. Its story presents all the attractions which incline the student to the study of history. It is profitable to follow here, as in politics, the development of ideas and customs, the efforts to accommodate the necessities of commerce by sea to those of the land, the methods of regulating the varied interests on shipboard and those between the shipowner and the ship's company, and the experiments towards ameliorating the age-long friction between the capitalist who supplied the ship and those who labored in her navigation. Through it all appears a constant search for justice, a sincere effort to accomplish what is right and fair for all concerned. Here one may trace, for example, the rule of general average, the doctrine that what is sacrificed for the common benefit shall be compensated by a common contribution, a rule of such plain and simple equity that the failure of other codes to adopt it is a constant surprise. It appears in a fragment of Greek legislation and forms the text for a chapter in the Digest of Justinian. Its antecedents were probably Phoenician. It survived the Roman Empire in the traditions of seafaring men and reappears in the compilation of sea laws which Coeur-de-Lion revised on his return from the Holy Land, the Rolls or Judgments of Oléron. The Black Book of the admiralty preserves it in London. It may be traced through the Middle Ages down to the York-Antwerp Rules of 1890 and the practice of adjusters of the present day. Or one may consider the treatment of employer's liability for injuries received in the course of the employment without his personal fault. Is vicarious liability the true test or the doctrine of fellow service? The merchants of the Mediterranean had the problem in the operations of a very large and extended commerce and the maritime law evolved the doctrine that justice requires that one injured in the service of the ship should be cured at the expense of the ship, and have his wages but no more. The last word on the real equity of this solution of a perplexing economic question remains to be said, perhaps, but the student can trace its development and application through many centuries down to the current decisions of our own Supreme Court. On no other branch of law have tradition and custom exercised a greater influence. It grew out of the necessities of navigation and commerce by sea and remains substantially uniform in spite of forms of government, racial habits and local innovations. In its essence, it is less susceptible of statutory modification than the common law and careless legislation has had only local effects, diverting business into other channels but ineffective to change the substance of the law. Maritime commerce is naturally free and the wisest commercial governments are those which regulate it least. Its freedom is a direct implication from the doctrine of the natural freedom of the seas. The extent to which governments may profitably regulate it without impairing its usefulness or diverting the current to other shores may be found in the history of this law. Underlying principles are the same whether ships move by sail or steam or electricity or are great or small. There have been large vessels before the twentieth century and an equivalent commerce. The law has remained the same. Men pay damages every day in some of our ports for overlooking rules that were current in Roman times and needless litigation is carried through appellate courts because of professional and judicial failures adequately to investigate the underlying principles of the maritime law. The opportunities for the student are large and inviting. If this country is to do its part in the commerce of the future, its own maritime laws must be restated and reformed. This means not only the formal statutes and department regulations but also the great mass of judicial opinions of more than a hundred years. All are intertwined with each other and the result is chaotic. The fault has not been in the underlying principles of the maritime law but in legislation and interpretation. Our peculiar system has left the final word in the majority of decisions to judges trained in the common law and not professionally acquainted with any other. The result calls for the treatment which Justinian administered to the incongruous compilations, statutes and reports of his time. The student, either of business, history or law, who will apply himself to an investigation of the law of the sea and ascertain its simple fundamentals will not only have an interesting and profitable occupation but also be in a position to contribute substantially to the public welfare. REFERENCES FOR GENERAL READING _The American Admiralty_, Chapters I-XII, E. C. Benedict. Albany, N. Y., 1910; Banks & Company. _Maritime Law_, Chapters I-II, Henry Flanders. Boston, 1852; Little, Brown & Co. _Commentaries on American Law_ (13th ed.), Lectures XLV-XLIX, James Kent. Boston, 1884. _Marine Insurance_, Introduction 1-55, John Duer. New York, 1845; Voorhies. _Introduction historique à l'étude du droit commercial maritime_, Arthur Desjardins. Paris, 1890; A. Durand et Pedone-Lauriel. _Maritime Law_, Albert Saunders. London, 1901; Sweet Maxwell, Ltd. _The Rhodian Sea-Law_, Walter Ashburner. Oxford, 1909; The Clarendon Press. _History of Admiralty Jurisdiction_, R. H. Dana. 5 American Law Review 581. [1] "The first vessels were rafts. The raft is the parent of the modern ship" (Seabrook v. Raft, 40 Fed. 596). CHAPTER II TITLE AND TRANSFER =1. How Title Acquired.=--Title to a ship is acquired in the same ways as other personal property, by construction, purchase, gift or exchange. It may pass by delivery, without any bill of sale or other written document. This method, however, is neither advisable nor practicable where the value is substantial or active business is contemplated.[2] =2. Registration and Regulation.=--The United States, like other commercial countries, provides a complete system for the registry and regulation of all ships entitled to the privileges of American vessels. These laws do not require registry or enrollment unless such privileges are desired. The owner may acquire and dispose of his boat without reference to them, but, until it is registered or enrolled, it is not a vessel of the United States and cannot engage in any trade. It is therefore usual to have all matters in relation to the title and transfer of a ship in writing and according to customary forms. This is a safe and salutary rule. =3. Shipbuilding Contracts.=--The builder of a ship is the first owner unless there is a special contract under which he merely performs labor upon materials which the other party supplies. This is unusual. The shipbuilder generally constructs the vessel upon an order or contract, which, if properly drawn, provides for the time when the title shall pass away from him. Such contracts should be explicit in their details, especially as to the terms of payment and state of the title as the work goes on. Otherwise, the title may remain in the builder until delivery; if so, and the vessel be injured or destroyed, it will be his loss; or, if he becomes bankrupt before delivery, the vessel may be appropriated by his general creditors in spite of the fact that the purchase price may have been largely paid. In the United States _v._ Ansonia Co., 218 U. S. 452, a shipbuilder in Richmond, Va., became insolvent while engaged in constructing three vessels for the government; one war dredge for the War Department; one a revenue cutter for the Treasury Department; and the third a cruiser for the Navy. In each instance the shipbuilder was to furnish the labor and materials and perform the work and was to receive partial payments from time to time as the construction progressed. In the case of the dredge, the contract provided that the parts of the vessel as its construction progressed should become the sole property of the United States, although it was further provided that the government might subsequently reject defective work or parts and might even reject the completed vessel, should it fail to pass inspection. The contracts for the revenue cutter and cruiser, on the other hand, contained no provision for the passing of title before completion, but did provide that the government should have a superior lien upon the vessels for all payments made on account. The Supreme Court (Day, J.) said: It is undoubtedly true that the mere facts that the vessel is to be paid for in installments as the work progresses, and to be built under the superintendence of a government inspector, who had the power to reject or approve the materials, will not of themselves work the transfer of the title of a vessel to be constructed, in advance of its completion. But it is equally well settled that if the contract is such as to clearly express the intention of the parties that the builder shall sell and the purchaser shall buy the ship before its completion, and at different stages of its progress, and this purpose is expressed in the words of the contract, it is binding and effectual in law to pass the title. The court further held that the lien reserved in the contracts for the revenue cutter and cruiser was not superior to the liens of material men under the laws of Virginia. =4. Not Within Admiralty Jurisdiction.=--Until the vessel is launched and completed she is not within the jurisdiction of the maritime law but, like any other piece of construction, is subject to the local laws of the State wherein the work is carried on. The Admiralty courts of the United States decline jurisdiction of all contracts for the building of a ship. =5. Enrollment and Registration.=--When the ship is completed, she should be registered or enrolled as an American vessel. These words are synonymous; vessels in the foreign trade are "registered" and those in the domestic or coastwise trade are "enrolled"; (The Mohawk, 3 Wall. 566; Huus _v._ Co., 182 U. S. 392, 395). Vessels of less than twenty tons and more than five tons are neither registered or enrolled but should be licensed. =6. Ships Entitled to.=--This proceeding is accomplished at the office of the collector of customs of the district in which the home port of the vessel may be (Rev. St. § 4141, Morgan _v._ Parham, 16 Wall. 471). The home port is the port at or nearest which the owner, or managing owner, resides. The registration, enrollment and licensing of vessels is fully covered by Regulations originally promulgated by the Secretary of the Treasury under the navigation laws of the United States, which may now be obtained in revised form by application to the Department of Commerce at Washington. Ships entitled to such registration or enrollment are: 1. Vessels built in the United States and owned by a citizen. 2. Vessels captured in war and condemned as prize, and owned by a citizen. 3. Vessels forfeited and sold for breach of the laws of the United States and purchased and owned by a citizen. 4. Seagoing vessels whether steam or sail which have been certified by the Steamboat Inspection Service as safe to carry dry and perishable cargo, _wherever built_, which are to engage only in trade with foreign countries, being wholly owned by citizens of the United States or corporations organized and chartered therein, the president and managing directors and the holders of the control of which shall be citizens of the United States; also vessels answering the foregoing description which are to trade with the Islands of Guam and Tutuila until February 1, 1922, and thereafter as governed by Sec. 21 of the Merchant Marine Act (see Appendix). 5. Vessels wrecked in the United States, and purchased and repaired by a citizen, if the cost of the repairs is equal to three times the appraised value of the wreck as salved. 6. Vessels of the United States Shipping Board sold to a citizen of the United States. 7. Steamboats employed in a river and bay of the United States and owned wholly or in part by an alien resident within the United States. 8. Yachts owned by citizens and employed exclusively for pleasure. These, although foreign built, may be licensed to proceed from one domestic port to another so long as they do not trade or carry passengers. =7. Incidents of Enrollment or Registration.=--The law provides that vessels registered pursuant to law and no others (except those qualified according to law for carrying on the coasting or fishing trade) shall be deemed vessels of the United States and entitled to the benefits and privileges pertaining to such vessels. When a vessel ceases to be wholly owned by citizens of the United States or a corporation created under the laws of the United States, control of which is held by citizens, or ceases to be commanded by a citizen of the United States, she forfeits her rights, benefits and privileges of a vessel of the United States. Pilots and officers having charge of a watch must be citizens of the United States. A capital distinction to be borne in mind is that between vessels entitled to engage in coastwise trade and those not so entitled. No vessel of foreign registry may engage in that trade. No foreign-built vessel of American registry, with certain exceptions,[3] may engage in that trade under penalty of a fine, although it is within the power of the Secretary of Commerce to waive the imposition of such fine, and this has sometimes been done where an emergency arising out of exceptional circumstances has made it necessary for an unauthorized vessel to trade between ports of the United States. Vessels entitled to engage in the coastwise trade are those which, being built within and owned by citizens of the United States, are enrolled for that trade. Vessels owned by corporations may not engage in the coasting trade unless 75 per cent. of the interest therein is owned by citizens. The coasting trade consists of trade between continental ports of the United States, either directly or by way of a foreign port; that is to say, if you depart from New York with merchandise for Miami, you are trading between American ports, even though you may touch at Bermuda _en route_. The test is whether you trade between ports of the United States as part of a single voyage, irrespective of nationality of the ship. The character of the voyage, whether foreign or domestic, is determined by its terminus (Tabor _v._ U. S., 1 Story 1). Thus a vessel bound from New York to Yokohama, via San Francisco, would be upon a foreign voyage. Such a vessel, flying a foreign flag, could not discharge any of her passengers or cargo at San Francisco. Trade between the east and west coasts via the Panama Canal or Cape Horn is coastwise. Trade between ports of the United States and those of Hawaii, Porto Rico and Alaska is coasting trade, though the Shipping Board may issue permits to foreign vessels to carry passengers between Hawaii and the Pacific coast until February 1, 1922. Trade between ports of the United States and those of the Philippine Islands is by statute not coasting until February 1, 1922. Thereafter it is governed by Sec. 21 of the Merchant Marine Act, which will be found in the Appendix. Trade between ports of the United States and those of the Panama Canal Zone is not coasting. By the coasting trade is not meant the mere putting in of a vessel at a port of the United States after leaving another port for bunkers or supplies (which is not forbidden) but trading between such ports, _e.g._, the carriage of cargo and passengers from one such port and their discharge at another. =8. How Obtained.=--This registration or enrollment is obtained by proof of the collector that the vessel was built within the United States, or otherwise meets conditions mentioned; and that no foreigner is interested in her (Rev. St. § 4142); her size, characteristics and other points of identification are shown by certificates of the master carpenter under whose direction she was built, and surveyors appointed for the purpose, in accordance with R. S. 4147-4153; security is given that the certificate obtained shall be solely used for the ship, and thereupon the collector issues in statutory form his certificate of registration or enrollment, as the case may be (Rev. St. §§ 4155, 4319). The title to the ship may vest in one or more individuals or a corporation. In either case the residence or domicile of the owner is important. The law considers that for purposes of jurisdiction the ship is a part of the territory of the state or country in which the owner resides, and she continues for many purposes to be subject to its laws wherever she sails (Crapo _v._ Kelly, 16 Wall. 610; The Hamilton, 207 U. S. 398).[4] In the case of Crapo _v._ Kelly, just cited, the ship _Arctic_, registered at Fairhaven, Massachusetts, belonged to a firm of owners, residing and doing business in that state, who had become insolvent. The insolvent court of Massachusetts undertook to include the vessel among the assets of the owners within its jurisdiction, for the benefit of creditors. The vessel arrived at New York and was attached by a creditor of the owners residing there. Upon extended consideration, the Supreme Court held: This vessel, the _Arctic_, was upon the high seas at the time of the assignment (for the benefit of creditors). The status at that time decides the question of jurisdiction.... We hold that she was subject to the disposition made by the laws of Massachusetts and that for the purpose and to the extent that title passed to the assignees, the vessel remained a portion of the territory of that state. The ship's registry or enrollment, therefore, fixes her home port and she will be considered as belonging to the state in which such port is located and as foreign to all other states and countries. Ordinarily she is liable to taxation as personal property only in the state in which her home port is situated, but this is subject to the qualification that her situs as personal property is, for purposes of taxation, governed by the same rules applicable to other personal effects. The general rule is that the situs of personal property is the domicile of the owner, and a ship will be liable to taxation in the state where the owner resides, irrespective of the location of her home port as shown on the ship's documents. Thus in So. Pac. Co. _v._ Ky., 222 U. S. 63, a corporation organized in Kentucky, owned a number of vessels enrolled at New York. They were held taxable in Kentucky. The law further requires that every change in the title, command or structure of the ship shall be promptly reported and placed for record in the Collector's office, so that at any time her present status, the name of her commander and entire past history may be fully shown upon its books, and the Collector will furnish on request an abstract of the title which his records disclose. This abstract, of course, becomes important whenever the ship is sold or used as security, although it will not show anything in regard to maritime liens upon it since these are, in their nature, secret. Under present practice the owners of a ship usually incorporate. Such corporations take the complete title and are treated as the sole owner in all respects. There is nothing in the admiralty law which differentiates corporations from other owners. It is also popular to incorporate as "single ship companies" and in this way a double protection against liabilities in excess of the amount invested may be obtained. =9. Recording of American-built Foreign Ships.=--Vessels of foreign ownership built in the United States may be measured and recorded in the office of the Collector for the district in which they are built and a certificate of record issued. The advantage of having this is in having the official record already made in case the vessel subsequently becomes the property of citizens and entitled to registry. Changes of name and master of recorded vessels must be endorsed on the certificate of record and reported to the Collector at the port of record (Rev. St. §§ 4180-4184). =10. Name.=--A new vessel is registered under the name selected by her owners and must continue to bear that name--which is required to be painted upon her bows, stern, pilot house and lifeboats in letters of specified size,--unless permitted to change it. By Act of Congress approved February 19, 1920, changes of name may be made by the Commissioner of Navigation, United States Department of Commerce, "when in his judgment there shall be sufficient cause for so doing." Before authorizing a change of name, the Commissioner requires "such evidence as to age, condition, where built, and pecuniary liability of the vessel as may be deemed necessary to prevent injury to public or private interests," including the interests of the vessel's creditors. The purpose of these requirements is to prevent imposition upon the public by masquerading old, worn-out vessels under new names, and to prevent the loss of a vessel's identity, in fraud of her creditors, by changing her name. =11. Sale.=--The sale of a ship is usually evidenced by a bill of sale on a government form which will be furnished by the collectors. It is essential that it should include a copy of the last registry or enrollment and licenses, executed in the presence of two witnesses and acknowledged before a notary public. Mortgages may be made upon similar forms and the statute provides that, "No sale, conveyance, or mortgage which, at the time such sale, conveyance, or mortgage is made, includes a vessel of the United States, or any portion thereof, as the whole or any part of the property sold, conveyed, or mortgaged shall be valid, in respect to such vessel, against any person other than the grantor or mortgagor, his heir or devisee, and a person having actual notice thereof, until such bill of sale, conveyance, or mortgage is recorded in the office of the collector of customs of the port of documentation of such vessel." (Ship Mortgage Act, 1920, Subsection C (a). See Appendix, Merchant Marine Act, 1920, § 30.) While a prudent man will invariably evidence the sale of a ship by a written instrument, this is not essential to the validity of the sale, if the common law essentials to a sale of personal property--delivery or payment, in whole or in part, or both,--are present. The requirement of the statute (Rev. St. § 4170; Ship Mortgage Act 1920, Subsection H; See Merchant Marine Act 1920, § 30) that a bill of sale be given, containing a copy of the registry or enrollment, and recorded in the Collector's Office, is for the purpose of giving notice to the world of the transfer. Without these formalities, the sale is valid as against the grantor and persons having actual notice only; not as against any other persons claiming an interest in the ship. If an American vessel be sold to an alien without obtaining the Shipping Board's approval and without recording the transfer, the vessel is liable for forfeiture. =12. Transfer of Flag and Sales to Foreigners.=--The Merchant Marine Act of June 5, 1920 (see Appendix), provides that no American vessel shall be sold or transferred to any one not a citizen or placed under foreign registry without obtaining the approval of the Shipping Board. Any vessel transferred in violation of this provision is subject to forfeiture and fine. An American vessel may not be sold by order of a district court of the United States in a suit _in rem_ in admiralty to any person not an American citizen. =13. Admiralty Sales.=--The title to the ship may also be transferred by a sale in admiralty. This passes a new and complete title to the purchaser and absolutely frees the ship from all existing liens, titles or encumbrances. Such a sale is only made in the course of a suit in admiralty against the ship for the enforcement of a maritime lien, or other matter within the jurisdiction of the court. A ship which passes through such a sale becomes in effect an absolutely new vessel so far as prior title or encumbrances are concerned, and all previous claims are relegated to the proceeds in the registry of the court (The Garland, 16 Fed. 283). The Ship Mortgage Act, 1920 (§ 30 Merchant Marine Act, Subsection O), which creates preferences in favor of certain mortgages, provides that, on the sale in admiralty of a ship upon which there has existed a preferred mortgage the court shall, on request of an interested party, require the purchaser at the judicial sale to give a new mortgage on terms similar to the old one and, if such new mortgage is given, the mortgagee shall not be paid from the proceeds of the sale and the amount of the purchase price shall be diminished by the amount of the new mortgage. It is essential that the court should have full and complete jurisdiction to make the sale. Such sales are made by the marshal under a writ issued in a pending suit in admiralty; neither the officer nor the court warrants anything and the title given depends wholly upon the regularity of the proceedings and the jurisdiction of the court. The essentials are simple and it is easy to ascertain if they have been complied with. For example, when the marshal seizes a ship under admiralty process, he is required to give public notice of the seizure and the return-day of the writ in order that all the world may be bound by the proceeding. This is accomplished by taking actual possession of the vessel, posting a copy of the writ in some conspicuous place, and publishing an appropriate notice in some newspaper within the district. Sometimes this publication is omitted or deferred to a later stage of the proceedings. In Gould _v._ Jacobson, 58 Mich. 288, the results of such an omission were fatal to the title of the purchaser at a marshal's sale of the _Pickwick_. The ship had been seized in admiralty and sold to pay her debts. The marshal had failed to publish notice of the seizure; the Court held that the sale was quite void and that replevin would lie in favor of the representatives of the original owner against the marshal's vendee. =14. Sales by Trustees and Executors.=--These will only transfer the title of the true owner if the conditions of the trust or power given by the will are strictly observed. The rules are no different than in sale of other personal property and create no further exemption from maritime liens or other encumbrances than sales by ordinary owners. The warranty is usually less sweeping. =15. Sales by Mortgagee.=--Foreclosures of vessel's mortgages are frequently by virtue of the power of sale contained in the instrument and, if that power is carefully observed, will convey all the title of the mortgagor. Until the enactment of the Ship Mortgage Act of 1920, these proceedings were outside of admiralty jurisdiction. That act made substantial changes, not only in the status of mortgages of American ships, but in the manner of enforcing them. It is discussed under the title "Mortgage" _infra_ and is printed in full in the Appendix (Merchant Marine Act 1920, § 30). =16. Sales by Master.=--In case of actual necessity the master may sell the ship and convey a good title to the purchaser, free of all liens. Such sales become necessities within the meaning of the maritime law, where the master cannot communicate with the owner and there is nothing better that can be done for him or the others concerned in the adventure. If the master has an honest purpose to serve those who are interested in the ship and can clearly prove that the situation required the sale, he will be entirely justified and the purchaser's title secure. Good faith and necessity must concur. If, within a reasonable time, the master can consult with the owner, he should do so, because, if possible, the owner's judgment must control; and, in any event, the master should not sell without the advice of competent persons on the spot, whose opinions should be taken as to whether it is better judgment to repair or sell. His authority does not depend on their recommendation, but if he acts on it, his justification will be the more secure. Where possible, the facts should be presented by a survey of the ship and the surveyors' report give in detail the steps they take and their conclusions, with the facts necessary to vindicate them. When a vessel is lawfully sold by the master all existing liens are divested and an absolute title passes. The liens attach to the proceeds, however, which become, in the view of the maritime law, the substitute for the ship. A good title will pass by such a sale even if no bill-of-sale is executed. A parole sale--that is to say, a sale by word of mouth, without bill of sale or other writing--and delivery will effectually pass the property; while formal documents are, of course, desirable they are not essential to its validity. The principles governing the sale of a vessel by her master are set forth very clearly by Mr. Justice Davis, in delivering the opinion of the Supreme Court in the case of the _Amelie_, 6 Wall. 18: The _Amelie_ on her voyage from Surinam to Boston encountered perils of the sea, and was obliged to seek the harbor of Port au Prince, Hayti, and was sold there at public auction by the master, and purchased by Reviere, the claimant. The owner of the cargo, because of its non-delivery, filed a libel and insisted that the sale of the vessel was not justifiable and passed no title to Reviere, the claimant; and even if the sale was proper under the circumstances, that Reviere took title subject to all existing liens. The sale of a ship becomes a necessity within the meaning of the commercial law, when nothing better can be done for the owner, or those concerned in the adventure.... In order to justify the sale, good faith in making it and the necessity for it must both concur, and the purchaser to protect his title must be able to show their concurrence. The question is not whether it is expedient to break up a voyage and sell the ship, but whether there was a legal necessity to do it. If this can be shown, the master is justified; otherwise not. And this necessity is a question of fact, to be determined in each case by the circumstances in which the master is placed, and the perils to which the property is exposed. If the master can within a reasonable time consult the owners, he is required to do it, because they should have an opportunity to decide whether in their judgment a sale is necessary. At this point it may be observed that modern means of communication by cable and wireless render consultation with the owner feasible in many instances where it was not formerly possible, and there can be no doubt that it is the master's duty to avail himself of these means before selling the vessel. The court proceeds: He should never sell, when in port with a disabled ship without first calling to his aid disinterested persons of skill and experience, who are competent to advise, after full survey of the vessel and her injuries, whether she had better be repaired or sold. And although his authority to sell does not depend on their recommendation, yet, if they advise a sale, and he acts on their advice, he is in a condition to furnish the court or jury reviewing the proceedings strong evidence in justification of his conduct. In this case the ship was surveyed by competent surveyors, who made a full report and advised that the vessel be sold as the cost of repairs would exceed her value. The court continued: After this advice, the master who was bound to look to the interest of all parties concerned in the venture, had no alternative but to sell. In the face of it, had he proceeded to repair his vessel, he would have been culpable. Being in a distant port, with a disabled vessel, seeking a solution of the difficulties surrounding him; at a great distance from his owners, with no direct means of communicating with them; and having good reason to believe the copper of his vessel was displaced, and that worms would work her destruction, what course so proper to pursue as to obtain the advice "of that body of men who by the usage of trade have been immemorially resorted to on such occasions?" (Gordon _v._ Mass. Ins. Co., 2 Pick. 264). No prudent man, under the circumstances, would have failed to follow their advice, and the state of things, as proved in this case, imposed on the master a moral necessity to sell his vessel and reship his cargo. * * * * * It is insisted, even if the circumstances were such as to justify the sale and pass a valid title to the vendee, he, nevertheless, took the title subject to all existing liens. If this position were sound, it would materially affect the interests of commerce, for, as exigencies are constantly arising, requiring the master to terminate the voyage as hopeless, and sell the property in his charge for the highest price he can get, would any man of common prudence buy a ship sold under such circumstances, if he took the title encumbered with secret liens, about which, in the great majority of cases, he could not have the opportunity of learning anything? The ground on which the right to sell rests is, that in case of disaster, the master, from necessity, becomes the agent of all parties in interest and is bound to do the best for them that he can, in the condition in which he is placed and, therefore, has the power to dispose of the property for their benefit. When nothing better can be done for the interests of those concerned in the property than to sell, it is a case of necessity, and as the master acts for all, he sells as well for the lien holder as the owner. The very object of the sale, according to the uniform current of the decisions, is to save something for the benefit of all concerned; and if this is so, the proceeds of the ship, necessarily, by operation of law, stand in place of the ship. If the ship can only be sold in case of necessity, where the good faith of the master is unquestioned, and if it be the purpose of the sale to save something for the parties in interest, does not sound policy require a clean title to be given the purchaser in order that the property may bring its full value? If the sale is impeached, the law imposes on the purchaser the burden of showing the necessity for it, and this he is in a position to do, because the facts which constitute the legal necessity are within his reach; but he cannot know, or be expected to know, in the exercise of reasonable diligence, the nature and extent of the liens that have attached to the vessel. Without pursuing the subject further, we are clearly of the opinion, when the ship is lawfully sold, the purchaser takes an absolute title divested of all liens, and that the liens are transferred to the proceeds of the ship, which in the case of the admiralty law becomes the substitute for the ship. The sale in this case was made by parole; the master delivered the vessel to the purchaser, without, so far as appeared, executing any document evidencing the sale. On this subject, the court said: The title of Reviere, the claimant, was questioned at the bar, because he did not prove the master executed to him a bill of sale of the vessel. We do not clearly see how this question is presented in the record, for there is no proof, either way, on the subject, but if it is, it is easily answered. A bill of sale is not necessary to transfer the title to the vessel. After it was sold and delivered, the property was changed and no written instrument was needed to give effect to the title. The rule of common law on this subject has not been altered by statute. The law of the United States which requires the register to be inserted in the bill of sale on every transfer of a vessel, applies only to the character and privileges of the vessel as an American ship. It has no application to this vessel in this case. Sales of vessels by their masters are less common now than formerly in view of the modern facilities for communication with owners. If such sales are subject to the restrictions of the recent acts of Congress, heretofore mentioned, it would appear to be practically impossible for a master to sell an American ship to a foreigner. Whether such sales, arising as they do, _ex necessitate_, under the general principles of maritime law, are to be regarded as outside of the provisions of these statutes, has not been decided. There is no reason to suppose that the requirements of the statutes are suspended in such cases. =17. Sale of Ship at Sea.=--Such vessels may be sold or mortgaged by delivery of a proper instrument without the actual presence of the property and are entirely valid if possession be taken within a reasonable time after it comes within the purchaser's reach. The new owner should record the title in the custom house for the district in which his residence is, and observe all the requirements of law in regard to a new registration if he desires to preserve her national character. To be safe, until the vessel returns, the mortgage of a ship at sea should be recorded at the home port, as shown by the outstanding document as well as at the new home port. In the case of a transfer of a vessel at sea, where it is desired to preserve her nationality, it is necessary, upon her arrival at her home port, to deliver up her certificate of registration and obtain a new certificate. In the case of United States _v._ Willings, 4 Cranch, 48, a share in an American vessel was transferred by parole while she was at sea; and, before she reached port, was re-transferred, also by parole, to the original owners. The government challenged her right to the American flag, but the court held that the requirement that, upon transfer, the certificate of registery be surrendered, did not mean that the ship would forfeit the flag unless such surrender were contemporaneous with the sale, since a sale may be made by parole, and, inasmuch as the ship carries her papers with her, the registration could not be attended to until she returned. The Court, speaking through Chief Justice Marshall, held that the ship, having been sold at sea by parole and bought back by her original owners, also, by parole, before she reached port, had been twice legitimately sold and as her ownership when she returned was the same as when she started, her nationality remained unchanged. =18. Appurtenances.=--A bill of sale or mortgage of the ship should describe the interest conveyed, either the whole or a fractional part, and include the appurtenances. These are covered by the usual phrase, "engines, boilers, machinery, masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereunto appertaining and belonging." Whatever is on board for the object of the voyage and belonging to the owners will ordinarily be included, like provisions, supplies, compasses, chronometers as well as new articles purchased for the ship but not yet installed on board. As in other cases of sales, the intention of the parties, so far as it can be ascertained, will control and it is desirable to have an inventory of separate articles in order to avoid misunderstandings or disputes. =19. Warranties and Representations.=--The law is the same as in other cases of sales. The buyer must take care. The seller must not deceive. Material representations made to effect the sale are equivalent to warranties. If the ship is built or sold for a particular purpose, there is an implied warranty of fitness for that purpose. If the contract is reduced to writing, the parole evidence rule will control as to prior stipulations. REFERENCES FOR GENERAL READING _Shipping and Admiralty_, Parsons, Vol. I, Chapter III. _Commentaries_, Kent, III, Lecture XLV. _Sales_, Benjamin (2d Am. ed.), §§ 336-339. White's Bank _v._ Smith, 7 Wall. 646. Fleming _v._ Fire Assoc., 147 Mich. 404. U. S. _v._ Forester, Newb. Adm. 81. John Jay, 17 How. 399. _Admiralty_, Benedict, § 158. Huus _v._ S. S. Co., 182 U. S. 392. [2] Rev. St., § 4170, is as follows: "Whenever any vessel, which has been registered, is, in whole or in part, sold or transferred to a citizen of the United States, or is altered in form or burden, by being lengthened or built upon, or from one denomination to another, by the mode or method of rigging or fitting, the vessel shall be registered anew, by her former name, according to the directions hereinbefore contained, otherwise she shall cease to be deemed a vessel of the United States. The former certificate of registry of such vessel shall be delivered up to the collector to whom application for such new registry is made, at the time that the same is made, to be by him transmitted to the Register of the Treasury who shall cause the same to be canceled. In every such case of sale or transfer there shall be some instrument of writing, in the nature of a bill of sale, which shall recite at length, the certificate; otherwise the vessel shall be incapable of being so registered anew." This is discussed in § 10, _infra_, this chapter. [3] The exceptions are foreign-built vessels purchased from the United States Shipping Board and foreign-built wrecks repaired in the United States as indicated in § 6, _supra_, this chapter. Also all foreign-built vessels admitted to American Registry, owned on February 1, 1920, by citizens so long as they continue to be so owned. [4] While a vessel is part of the territory of her home jurisdiction for jurisdictional purposes, the doctrine of her territoriality does not extend to treating her as part of the soil for all purposes. Thus the Supreme Court has held that foreign seamen brought to the United States to work on an American ship engaged in foreign commerce, were not engaged "to perform labor within the United States" within the meaning of the contract labor law. (Scharrenberg v. Dollar S. S. Co., 245 U. S. 122.) CHAPTER III OWNERS AND MANAGERS =1. Who May Be.=--The owner of an American vessel must be a citizen of the United States. The statutes provide that "Vessels registered pursuant to law and no others, except such as shall be duly qualified according to law for carrying on the coasting or fishing trade, shall be deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels; but no such vessel shall enjoy such benefits and privileges longer than it shall continue to be wholly owned by a citizen or citizens of the United States or a corporation created under the laws of any of the States thereof, and be commanded by a citizen of the United States" (7 Comp St., 1916 § 7707). Ownership may be shown by possession, under claim of title, as in the case of other personal property, but the best evidence is the formal bill of sale, possession, and a clean abstract of title from the records of the Collector of Customs of her home port. All persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the state wherein they reside. Thus minors, married women (except those having alien husbands), persons under guardianship, trustees, and corporations, like other citizens, may be owners. =2. Part-Owners.=--The ship may be owned in shares by any number of individuals. Such part-owners do not become partners by reason of such ownership. Each has a separate and distinct interest which he may sell or dispose of without the consent of the others. They are not partners in the absence of a special agreement to that effect. Each is liable for only his own proportion of the debts and none is responsible for the acts of the others beyond the amount of his interest in the ship, unless he has himself created such further liability directly or by reasonable implication. Generally speaking, the part-owners of a ship occupy the legal status of tenants in common. They may, of course, become partners and subject to the legal incidents of partnership. If they so agree, or if they act in such a manner, they assume the attributes of partnership, one of the chief of which is the liability of each individual partner for the entire indebtedness of the firm (The Wm. Bagaley, 5 Wall. 377). The Daniel Kaine, 35 Fed. 785, was a contest over the surplus remaining in the registry of the court from the sale of a tow-boat. This had been allotted to the several part-owners in proportion to their shares, but the master, who was one of the owners, claimed a lien against the entire fund for advances made by him on the theory that the owners held the vessel in partnership and not merely as individual coöwners. The Court said: The burden of proof is upon Captain Cowan to establish the allegation contained in his petition, but which is denied in the answer thereto, that the shareholders in the Daniel Kaine were not tenants in common but partners in respect to the ownership of the vessel. Has he succeeded in this? The evidence bearing upon this point is as follows: The boat was built by James Lynn, George T. Miller, and R. W. Cowan, who from the first held her in defined shares,--Lynn and Miller each owning seven-eighteenths and Cowan owning four-eighteenths. Thus was the boat enrolled on February 8, 1882. Speaking of her enrollment, Captain Cowan testifies: "There was no other agreement among us than that the boat should be as set out in the registry." In April, 1886, George T. Miller transferred his seven-eighteenths in the boat to George B. Kaine. Captain Cowan further states that there was no written agreement between the owners of the boat as to how she was to be operated, nor any verbal agreement that she was to be run or operated in partnership. However, it seems that, by the tacit consent of all the owners, she was run on joint account. Her employment was in the towing of coal, and at first she was principally engaged in towing for two coal firms, in one of which Lynn was a member, and in the other Miller, viz., James Lynn & Sons, and George T. Miller, & Co. The bookkeeper who kept the books of the boat made out and furnished annually to the several owners balance sheets, in which the cost of the boat appeared as an item. Do these facts establish that the shareholders in the Daniel Kaine were partners in her ownership? I think not. That the cost of the boat appeared in the balance sheets which the bookkeeper made out is not a controlling circumstance, and, indeed, is a matter of little moment, when considered in connection with Captain Cowan's testimony, above quoted. According to the enrollment of the boat, her part owners were tenants in common, and there was no different or other agreement as to ownership. An agreement to run a ship on shares does not make the owners partners with respect to the vessel. Says Chief Justice Gibson in Hopkins _v._ Forsyth, 14 Pa. St. 38: "Carriers may doubtless become partners, but not merely by becoming joint owners of a chattel, and using it for a common purpose. And the principle is peculiarly applicable to ships or other craft, the exceptions to it in respect to them being always founded in very special circumstances." Now, where the vessel is not partnership property, according to the clear weight of authority in this country, one part owner has no lien for his advances and disbursements upon the share of his coöwner. Nor does it make any difference that the part owner making such advances was also the ship's husband. In treating of this subject, Mr. Justice Curtis, in the case of the Larch, 2 Curt. 434, State, after remarking that in England the law is now settled against the existence of the lien, said: "There has been some diversity of decision in this country, but I think it has proceeded from diversity in the views taken of the particular facts of the cases, rather than from any real difference in principles. That the owners of a vessel may be copartners in respect to that, as well as any other property, and that, when they are so, each has a lien, can not be doubted. But where no such special relation exists, where they are merely part owners, and as such tenants in common, that one has no lien on the share of another for advances, I believe to be equally clear." =3. Corporations.=--Corporations organized under state laws may be the owners of American vessels. A corporation is a legal person having an individuality distinct from all its stockholders. It is the corporation, and not the stockholders, who owns the corporation property. For that reason the Attorney General has expressed the opinion (29 Op. 188) in a case in which a vessel was owned by a corporation of the State of New York, a majority of whose stock was held by aliens and whose directors were all aliens, except three, that, under the laws, so long as the corporation was legally organized and existing as an American corporation under the laws of New York, a vessel owned by it was entitled to American registry. It is unlawful, without obtaining permission of the Shipping Board, to place under foreign registry, a vessel owned wholly or in part by an American corporation or to transfer such vessel to any person other than a citizen (Merchant Marine Act, 1920. See Appendix), and within the meaning of that act no corporation is deemed a citizen unless the stock control and management are vested in individual Americans. To enable a corporate-owned vessel to engage in the coasting trade, 75 per cent of the interest in the corporation must be American owned. =4. Majority Interest.=--The majority interest will usually control, whether the title is in a corporation or individuals. Thus the majority may direct or change the employment of the vessel, pledge her for supplies or repairs, and employ or dismiss the master and crew. If the master be also a part-owner, the majority still has the right to remove him, unless there is a valid written agreement to the contrary. In the Orleans _v._ Phoebus, 11 Peters, (U. S.) 175, it appeared that Phoebus was master and owner of one-sixth of the steamboat _Orleans_. He alleged that he had been dispossessed by the owners of the other five sixths, who were operating the vessel against his wishes. Speaking for the Supreme Court, Justice Story said: The majority of the owners have a right to employ the ship in such voyages as they may please; giving a stipulation to the dissenting owners for the safe return of the ship, if the latter, upon a proper libel filed in the admiralty, require it. And the minority of the owners may employ the ship in the like manner, if the majority decline to employ her at all. Similarly Justice Clifford, in The Wm. Bagaley, 5 Wall. 377: Even where the part owners of a ship are tenants in common, the majority in interest appoint the master and control the ship, unless they have surrendered that right by agreeing in the choice of the ship's husband as managing owner. If the owner be a corporation, the control of the vessel is usually directed by the Board of Directors, as in the case of other corporate enterprises, though the holders of a majority of the capital stock may determine the disposition of the vessel and all matters relating to her, by voting their stock at regular or special stockholders' meetings, called in accordance with the company's charter and by-laws and the laws of the state in which the company is incorporated. =5. Minority Interest.=--The minority interest, where the majority sends out the ship against its wishes, may compel the majority to give a bond for its safe return or the payment of the value of its interest. This may be obtained through a court of admiralty. When such security is given the dissenting owners, they are not entitled to compensation for the use of their shares or to any portion of the profits. In the same way, a minority, desiring to use the ship against the majority who prefer to lay her up, may obtain her. The rule was thus laid down by Justice Clifford in The Wm. Bagaley, 5 Wall. 377, heretofore cited: Admiralty, however, in certain cases, if no ship's husband has been appointed, will interfere to prevent the majority from employing the ship against the will of the minority without first entering into a stipulation to bring back the ship or pay the value of their shares. But the dissenting owners in such a case, bear no part of the expenses of the voyage objected to, and are entitled to no part of the profits.... Unless the coöwners agree in the choice of a managing owner or the dissenting minority go into admiralty, the majority in interest control the employment of the ship and appoint the master. The admiralty practice is governed by the old maxim that "ships were made to plow the ocean, and not to rot by the wall." So, if the owners be evenly divided in opinion, the party desiring to employ the ship will prevail, on giving security to the other. In Willings _v._ Blight, 2 Pet. Adm. 288; 30 Fed. Cas. No. 17765, decided by the United States District Court for the Eastern District of Pennsylvania in 1800, the court quaintly expressed the law as follows: It is a principle discernible in all maritime codes, that every encouragement and assistance should be afforded to those who are ready to give their ships constant employment; and this not only for the particular profit of owners, but for the general interests and prosperity of commerce. If agriculture be, according to the happy allusion of the great Sully, "one of the breasts from which the State must draw its nourishment," commerce is certainly the other. The earth, parent of both, is the immediate foundation and support of the one, and ships are the moving powers, instruments and facilities of the other. Both must be rendered productive by industry and ingenuity. The interests and comforts of the community will droop and finally perish if either be permitted to remain entirely at rest. The former will less ruinously bear neglect, and throw up spontaneous products; but the latter require unremitted employment, attention and enterprise, to insure utility and product. A privation of freight, the fruit of the crop of shipping, seems therefore to be an appropriate mulct on indolent, perverse or negligent part owners. The drones ought not to share in the stores acquired and accumulated by the labor, activity, foresight and management of the bees. Although the hive may be common property, it is destructively useless to all, if not furnished with means of profit and support by industry and exertion; which should be jointly applied by all before they participate in beneficial results. Nor should the idle and incompetent be permitted to hold it vacant and useless to the injury and ruin of the industrious and active. =6. Suits between Part-Owners.=--The admiralty will sometimes entertain a suit for partition between owners who can not agree and sell the ship for the purpose of dividing the proceeds. Generally it will only recognize legal titles, that is, those shown by bills of sale or matters of record, and not merely equitable claims of ownership. Part-owners have no lien against each other where one has paid more than his share of the debts or expenses and therefore can not proceed against the ship directly. They can, however, have an accounting in equity or other proceeding in state courts for the purpose of adjusting the matter. One may sue the other for the loss of the vessel by negligence. A part-owner may have a lien upon the ship for wages or other maritime services, subordinate, however, to the liens of strangers to the title. Each is bound to pay to the others his own share of the expenses of the ship and, in the absence of an express agreement to the contrary, the law will imply a promise to repay an excess advanced by one over his share on which an ordinary action may be brought (Sheehan _v._ Dalrymple, 19 Mich. 239). =7. Authority of Owner.=--As between the owner and the master, the former is supreme. The relation is one of agency or employment and the master must obey. The owner has the legal right to take his ship from the custody and control of the master, at any time, and in whatever place. He may remove him at pleasure, and without assigning any cause, subject only to the ordinary responsibility for breach of contract if a contract be broken. This is because the owner is very deeply concerned in who is master of his ship and is so highly chargeable with his conduct that it is deemed proper that he should be permitted to dismiss him at any time. The relation is a confidential one and can not be forced to continue when confidence ceases. =8. Obligation of Owner.=--The owner is bound to provide a seaworthy ship. While the maritime law, in order to encourage investments of capital, endeavors to provide certain limitations of liability, the obligation of seaworthiness is supreme up to, at least, the amount invested in the ship. Subject only to a possible limitation of liability, the owner is absolutely bound to furnish and maintain a seaworthy ship; this obligation is analogous to that of an employer on land to furnish a safe place for his employees or of a carrier to furnish safe and roadworthy means of transport. Seaworthiness is a relative term. The ship must be fit in design, structure, condition and equipment to encounter the ordinary perils of the voyage. She must have a competent master and a sufficient crew. Absolute perfection, of course, is not required; the real test is that the ship shall have that degree of fitness which the ordinary careful and prudent owner requires of his vessel at the commencement of the voyage in view of all the circumstances which may attend it. The law does not insist that the shipowner shall in person attend to all his duties in respect of the ship. It recognizes that most of these must be met by agents. It contemplates that shipowners may avail themselves of the facilities common to business men and be relieved whenever they have properly employed competent agents to supervise the ship at sea and in port. In most instances where the maritime law may be applied the owner will not be responsible beyond his interest in the ship, for the acts or omissions of agents whom he has selected with due care. =9. Liability of Owner.=--The owner is liable for all the contracts and negligence of the master up to, at least, the value of his interest in the ship. In most cases, he may limit his liability to such value by abandoning the ship to the creditors. This is an underlying doctrine of the general maritime law and generally carried forward into the statutes of all maritime countries. There is a general exception, however, in regard to sailors' wages. The owner remains absolutely liable for these and cannot limit against them. He is also liable for all his personal contracts in regard to the ship as well as for his personal negligence. He will not be liable for the contracts or torts of the master outside of the scope of his employment, as on a bill-of-lading for cargo never received on board or an unauthorized assault on a passenger. An illustration of the liability of the owner for contract of the master within the scope of his employment is to be found in a case in which the master contracted for extra pilotage. As the United States District Court remarked in the Cervantes, 135 Fed. 573, "In pilotage cases resort may be had to the vessel or the owner or the master." The case of Chamberlain _v._ Ward, 21 How. 548, illustrates the liability of an owner for the tort of the master. It grew out of a collision in Lake Erie and was an action in admiralty brought _in personam_ by the owners of one of the vessels against the owners of the other for damages, alleging the negligent operation of the respondents' vessel. The Supreme Court (Clifford, J.) held: Owners of vessels, and especially those who own and employ steamships, whether propellers or sidewheel steamers, must see to it that the master and other officers intrusted with their control and management are skillful and competent to the discharge of their duties, as, in case of a disaster like the present, _both the owners and the vessels_ are responsible for their acts, and must answer for the consequence of their want of skill and negligence; and this remark is just as applicable to the under officers, whether mate or second mate, as to the master, during all the time they have charge of the deck. That the mate in this case was substantially without experience in navigating steamers, and utterly destitute of the requisite information to fit him to determine the proper courses of the voyage, are facts so fully proved that it is difficult to regard them as the proper subjects for dispute; and what is more, the master knew his unfitness when he started on the voyage, and stated before the vessel left Cleveland, to the effect that he was afraid he was going to be sick, and that he had no confidence in the mate. Some of the owners also distrusted his fitness when they employed him, and made an effort to engage another person in his stead; and one of them, after having heard of the disaster, expressed his regret that the person to whom he first applied had not taken his place. The case of Hough _v._ Western Trans. Co., 3 Wall. 20, was a libel _in personam_ against the owners of the steamer _Falcon_. The vessel, while made fast to libellant's wharf, took fire through the negligence of the master and crew. The fire communicated to the wharf, which was destroyed with the buildings on it and those adjacent. While the court held that the tort was committed on land and, not being maritime, the admiralty court was without jurisdiction, it upheld the principle of the liability of owners for the negligence of the master and crew as follows: The owner of a vessel is liable for injuries done to third persons or property by the negligence or malfeasance of the master and crew while in the discharge of their duties and acting within the scope of their authority. It is upon this principle that the defendants are liable, if at all, to the libellants for the damages sustained. The circumstance that the agents were in the employment of the owners on board the vessel, and that the negligence occurred while so employed, and which occasioned the damage, gives to the libellants the right of action. This is, indeed, simply the general law of master and servant or principal and agent. =10. Temporary Ownership.=--The ship may be chartered so that the hirer will become, in law, her temporary owner. This is ordinarily accomplished by means of a written contract called a charter party. It may contain whatever agreements the parties choose but when its legal effect is to give the hirer exclusive possession, control and management, so that he appoints the master, runs the vessel and receives the entire profits, there is a demise or conveyance of the ship and the hirer becomes owner _pro hac vice_, or, for the time being. He is then responsible for her contracts and torts and may limit his liability as if he were the actual owner and the latter is freed from personal responsibility. The situation is like a lease of premises on land to a tenant. The officers and crew become the agents or employees of the charterer and, in matters of contract particularly, as for supplies and repairs, the ship may not be subject to maritime liens if the creditor has notice of the terms of the charter party which preclude their creation. To effect this change into temporary ownership, the terms of the instrument should be plain and explicit; if indefinite or ambiguous, the construction will be against a demise of the ship, the courts favoring an interpretation which preserves the liabilities and liens incident to the permanent title. The temporary ownership of a vessel by a person other than the real owner does not relieve the ship herself from those liabilities which attach to her in any event: For example, her liability for damage caused others by her torts, as faulty navigation; or from liability under those contracts for which the ship itself is primarily responsible, such as contracts for bunkers and supplies and necessary repairs elsewhere than in the home port. This principle is laid down in the case of the Barnstable, 181 U. S. 464, as follows: The law in this country is entirely well settled that the ship itself is to be treated in some sense as the principal and as personally liable for the negligence of any one who is lawfully in possession of her whether as owner or charterer. And in the case of Sherlock _v._ Alling, 93 U. S. 99, where it was said: By the maritime law the vessel, as well as owners, is liable to the party injured for damages caused by its torts. By that law the vessel is deemed to be an offending thing and may be prosecuted without any reference to the adjustment of responsibility between the owners and the employees for the negligence which resulted in the injury. The claim of the true owner to his vessel will not, however, be defeated by fraudulent acts of the temporary owner to which the real owner was not privy, because in such a case the theory of the agency of the master or temporary owner for the real owner fails. This subject is discussed in the leading case of the Freeman, 18 How. 182. In that case the temporary owner caused the master to sign bills of lading, certifying that a quantity of flour had been shipped on board the schooner from Cleveland to Buffalo by the temporary owner consigned to the libellants. No such flour had in fact been shipped and the consignees, who had advanced money on the bills of lading, libeled the ship. The real owner filed a claim to the vessel. The Court (Curtis, J.) said: Bills of lading themselves are not real contracts of affreightment, but only false pretenses of such contracts; and the question is, whether they can operate, under the maritime law, to create a lien, binding the interest of the claimant in the vessel. Under the maritime law of the United States the vessel is bound to the cargo, and the cargo to the vessel, for the performance of a contract of affreightment; but the law creates no lien on a vessel as a security for the performance of a contract to transport cargo, until some lawful contract of affreightment is made, and a cargo shipped under it. In this case there was no cargo to which the ship could be bound, and there was no contract made, for the performance of which the ship could stand as security. But the real question is, whether, in favor of a _bona fide_ holder of such bills of lading procured from the master by the fraud of an owner _pro hac vice_, the general owner is estopped to show the truth, as undoubtedly the special owner would be. * * * * * We are of opinion that, under our admiralty law contract of affreightment, entered into with the master, in good faith, and within the scope of his apparent authority as master, bind the vessel to the merchandise for the performance of such contracts, wholly irrespective of the ownership of the vessel, and whether the master be the agent of the general or special owner. * * * * * For the ground on which we rest the authority of the master, who is either special owner or agent of the special owner, is, that when the general owner intrusts the special owner with the entire control and employment of the ship, it is a just and reasonable implication of law that the general owner assents to the creation of liens binding upon his interest in the vessel, as security for the performance of contracts of affreightment made in the course of the lawful employment of the vessel. The general owner must be taken to know that the purpose for which the vessel is hired, when not employed to carry cargo belonging to the hirer, is to carry cargo of their persons; and that bills of lading, or charter-parties, must, in the invariable regular course of that business, be made, for the performance of which the law confers a lien on the vessel. He should be considered as contemplating and consenting that what is uniformly done may be done effectually; and he should not be allowed to say that he did not expect, or agree, that third persons, who have shipped merchandise and taken bills of lading therefor, would thereby acquire a lien on a vessel which he has placed under the control of another, for the very purpose of enabling him to make such contract to which the law attaches a lien. * * * * * There can be no implication that the general owner consented that false pretenses of contract, having the semblance of bills of lading, should be created as instruments of fraud; or that, if so created, they should in any manner affect him or his property. They do not grow out of any employment of the vessel; and there is as little privity or connection between him, or his vessel, and such simulated bills of lading, as there would be between him and any other fraud or forgery which the master or special owner might permit. Nor can the general owner be estopped from showing the real character of the transaction, by the fact that the libellants advanced money on the faith of the bills of lading; because this change in the libellants' condition was not induced by the act of the claimant, or of any one acting within the scope of an authority which the claimant had conferred. Even if the master had been appointed by the claimant, a willful fraud committed by him on a third person, by signing false bills of lading, would not be within his agency. If the signer of a bill of lading, was not the master of the vessel, no one would suppose the vessel bound; and the reason is, because the bill is signed by one not in privity with the owner. But the same reason applies to a signature made by a master out of the course of his employment. The taker assumes the risk, not only of the genuineness of the signature, and of the fact that the signer was master of the vessel, but also the apparent authority of the master to issue the bill of lading. We say the apparent authority, because any secret instruction by the owner, inconsistent with the authority with which the master appears to be clothed, would not affect third persons. But the master of a vessel has no more than apparent unlimited authority to sign bills of lading, than he has to sign bills of sale of the ship. He has an apparent authority, if the ship be a general one, to sign bills of lading for cargo actually shipped; and he has also authority to sign a bill of sale of a ship, when, in case of disaster, his power of sale arises. But the authority, in each case, arises out of, and depends upon a particular state of facts. It is not an unlimited authority in the one case more than in the other; and his act, in either case, does not bind the owner, even in favor of an innocent purchaser, if the facts upon which his power depended did not exist; and it is incumbent upon those who are about to change their conditions, upon the faith of his authority to ascertain the existence of all the facts upon which his authority depends. * * * * * On these grounds, we are of the opinion that, upon the facts as they appear from the evidence in the record, the maritime law gives no lien upon the schooner that the claimant is not estopped from alleging and proving those facts. It should be noted that the mere record title does not conclusively establish ownership. That title may be only security for the real owner out of control. The real facts may be shown when necessary (Davidson _v._ Baldwin, 79 Fed. 95). =11. Managing Owner.=--The shore business of a ship is usually attended to by an agent or representative called the "managing owner," "ship's husband," "shore-captain," "port-captain," "managing-agent," or "manager." Different expressions prevail in different localities but they all mean substantially the same thing--an agent of the owners charged with keeping the ship in good repair and finding business for her. He has authority to direct all proper repairs, equipment and outfit, to hire the officers and crew, to make contracts for freight, to collect and disburse the earnings. He should see that the ship is seaworthy and supplied with all necessary and proper papers. He has no implied authority to borrow money, nor surrender a lien for freight, nor to insure; he cannot bind the owners to the expenses of a lawsuit without their special consent. It is doubtful whether he can, in any event, pledge the credit of the owners beyond their interest in the ship and it is probable that they are entitled to the statutory limitation of liability against all his contracts or torts in which they do not personally participate. If, however, the ship is owned by a corporation, it is not advisable that any of the directors or officers should also be the managing owner, as his "privity or knowledge" may thereby attach to the corporation. In Woodall _v._ Dempsey, 100 Fed. 653, the Court found the facts to be as follows: The suit is for $3,513, a balance due for repairs. The work was done at Baltimore costing $16,000. The home port of the vessel was Philadelphia, the owners being Patrick Dempsey and Henry Hess, who reside here; the former having four-fifths, the latter one. Dempsey, managing owner, ordered and superintended the repairs. Mr. Woodall sought the work for his company, and came to Philadelphia to obtain it. At that time it was supposed $5,500 would cover the cost. The vessel was subsequently taken to the libellants' place at Baltimore and the work commenced in pursuance of arrangements made here. It was afterwards found that much more must be done than had originally been contemplated, and a much larger bill incurred. On the completion of the work, notes (of Dempsey) were given for the $3,513 unpaid, and the vessel was delivered to the owners. Woodall brought an action _in personam_ against Dempsey and Hess for the $3,513. It appeared that plaintiff dealt with Dempsey alone and there was no evidence to show that he took any action or made any expenditure on the credit of Hess. The Court said: In my opinion the case turns on the power of Dempsey, considered merely as managing-owner, to bind Hess by the contract for repairs. Upon this subject the decision in Spedden _v._ Koenig, 24 C. C. A. 189, 78 Fed. 504, relied on by the respondents, seems to be much in point. The syllabus of the case states correctly the rule applied by the court: "In the home port, where all the owners reside, the managing owner, though registered as such at the custom house, can not, merely by virtue of that relation, order supplies and bind his coöwners to a personal liability therefor." =12. Compensation and Lien.=--The compensation of the managing owner or ship's husband depends upon contract, express or implied, with the owners. In some localities, usage may provide a commission on the amounts of money which he handles. Where he is not one of the owners, the law would doubtless imply a promise to pay him a reasonable compensation; where he is a part owner himself, it is doubtful if compensation could be recovered in the absence of a definite agreement; ordinarily tenants in common are not entitled to charge each other for services rendered in the care and management of the common property, in the absence of a statute or special contract. The managing owner is not entitled to a lien upon the ship for his compensation or disbursements but he may have a lien upon the profits of a voyage in his hands or upon the proceeds of the ship in the same situation. REFERENCES FOR GENERAL READING _Shipping and Admiralty_, Parsons, Vol. I, Chapter IV. _Admiralty_, Hughes, Chapter XV. Spedden _v._ Koenig, 78 Fed. 504. Law of Part-Owners of Vessels, 88 Am. Dec. 364. Gillespie _v._ Winberg, 4 Daly (N. Y.) 318. Mitchell _v._ Chambers, 43 Mich. 150. _Maritime Law_, Saunders, Chapters I and XV. CHAPTER IV THE MASTER =1. Appointment and General Authority.=--The master is the commander of a merchant vessel. He has full charge of, and personal responsibility for the navigation and control of the ship, passengers, crew and cargo as the representative and confidential agent of the owner. The position is one of the most dignified and responsible known to the law. In order to have the ship seaworthy, an owner must provide a master who is fully competent in respect of care, skill and honesty, a man of sound judgment and discretion; and in general, there must also be provided one of sufficient ability to supply his place, in case of accident or disability. (The Niagara, 21 How. (U. S.) 7; 2 Parsons Sh. & Ad. 1.) Correspondingly, he is an officer to whom great power and wide discretion are necessarily confided. His authority is summary and often absolute, especially at sea, and can seldom be resisted by those over whom he is placed--as Chancellor Kent has expressed it: "He should have the talent to command in the midst of danger, and courage, and presence of mind to meet and surmount extraordinary perils. He should be able to dissipate fear, to calm disturbed minds, and inspire confidence in the breasts of all who are under his charge, in tempests as well as in battle. The commander of a ship must give desperate commands; he must require instantaneous obedience. He must watch for the health and comfort of the crew, as well as for the safety of the ship and cargo. It is necessary that he should maintain perfect order, and preserve the most exact discipline under the guidance of justice, moderation and good sense." Our statutes require that only those whom the law has examined and approved shall occupy that position. The master must be an American citizen (Rev. St. § 4139); he must have a license from the Inspectors, who are charged to examine into his character and habits, as well as his technical qualifications (§ 4439);[5] he is sworn to the performance of the duties of his office (§ 4445); he must exhibit his license to the public (§ 4446); he is subject to summary punishment for incompetency (§ 4450); and his personal liability cannot be limited, as the owners may by law. In short the law contemplates the selection of picked men as masters in the merchant marine, and forbids the employment of others. No formalities are required in his appointment by the owner. Any authorization which would suffice to otherwise create the relation of master and servant, or principal and agent, is enough (The Boston, Blatch. & H. 309). His contract need not be in writing, even if for more than one year. His wages are a matter of contract; he has no lien on the ship (The Nebraska, 75 Fed. 598), unless, possibly, one is created by the local law of the ship's flag. In case of disaster, his duty requires him to stay by the ship as long as there is any possibility of good resulting therefrom. The popular phrase that "the captain should be the last man to quit the ship" is well founded in law (The Niagara, 21 How. (U. S.) 7). His authority is generally implied and is according to the law of the ship's flag. Generally speaking, he is the owner's agent and his authority extends to all matters within the scope of his appointment. Where the owner is present, or easily accessible, this authority is narrowed, but otherwise it may be very broad, and measured only by the necessities of the situation, and the use and employment of the ship. On shipboard, his authority is supreme, except, possibly, in the presence of the owner. He has power to enforce discipline and inflict punishment, not unlike that in the relationship of parent and child, or teacher and pupil, save that he is forbidden by statute to inflict corporal punishment (Act of March 4, 1915). The old flogging days, therefore, are over, and the master who inflicts corporal punishment is guilty of a crime. He may, in proper cases, discharge or disrate members of the crew. On the other hand, the law charges him with the duty of seeing that the crew has sufficient provisions (§ 4564); proper medical care (§ 4569); protection against unlawful violence, and the like; and he is criminally liable for abandoning sailors in a foreign port (§ 5363).[6] =2. Personal Liability.=--His personal liability is practically unlimited. The owner may confine his liability to the value of the ship but the master has no such privilege. Thus materialmen may sue the master personally for supplies and repairs (General Admiralty Rule 12);[7] the sailors may sue him for their wages (Rule 13); the pilot, for pilotage (Rule 14); suits for collision may be brought against him alone (Rule 15), and he is responsible for moneys loaned the ship in a foreign port (Rule 17); so, also he is liable for cargo injured by the ship and may be sued by the underwriters therefor (Co. _v._ Dexter, 52 Fed. 152). =3. Restriction on Authority.=--The master is the owner's agent in all matters fairly within the scope of his authority but has no more authority to bind him than any other special agent. He is not a general agent and his powers are usually confined to the property in his charge. In cases of necessity, when the owner is not present, his authority is very broad but it is correspondingly restricted when the owner is present. He cannot bind the owner personally beyond the value of the ship and freight pending; he cannot vary or annul the owner's agreements; he cannot make a promissory note binding on the owner; or bind him for cargo not actually on board by a bill-of-lading;[8] or admit an invalid claim; nor purchase a cargo on his account. In dealing with other persons on board his vessel his authority is as broad as the exigencies of his situation require and he may, in proper cases, and after exhausting pacific measures put even passengers under arrest. But he cannot delegate this authority to minor officials or others on board but must personally exercise such responsible duties and see to it that nothing unreasonable is done. It has been held that while he may restrain, or even confine, a passenger who refuses to submit to the necessary discipline of the ship, he ought not to inflict any higher punishment than a reprimand upon a passenger without first conferring with his officers and entering the facts on the log. His authority to punish members of the crew must be exercised with moderation and in reason. He has no authority to punish by flogging or the use of any illegal instrument and in testing the legality of punishment or chastisement the methods and weapons employed are important.[9] =4. Rights of Master.=--He is entitled, of course, to have his wages paid according to his contract--though he has no lien for them on the ship--and such a contract is valid and enforceable although made without writing and for more than one year. He is also entitled to recompense for all money advanced for the ship within the scope of his employment and to indemnity against loss or damage which he may sustain therein without his own fault. He is also entitled to care and cure for injuries sustained in the service of the ship, irrespective of his own fault, like other members of the ship's company. He is entitled to extra wages for services outside of his line of duty. He has a lien on the freight[10] for his wages, disbursements, expenses and necessary liabilities. This may be asserted by withholding from the moneys collected by him or by an attachment or garnishment. When the ship is in charge of a licensed pilot[11] the master should remain in command except so far as the pilot's duties are concerned and see that there is a sufficient watch on deck and that the men are attentive to their duties; he may advise with the pilot and even displace him in case of intoxication or manifested incompetence. By virtue of his general agency for the owners in relation to the ship, he may sue in his own name, in their behalf, to recover for collision or for breach of contract of affreightment or on any other account connected with the business entrusted to him. =5. Wages.=--His wages depend on the contract with the owner and, where that is not express, will be allowed in accordance with the prevailing usage of the place and trade. The fact that he is a part-owner does not affect his rights in this respect. He may pay himself out of freight-money which passes through his hands. In case of wrongful discharge he may sue for his wages for the balance of the term in one action for damages for breach of contract or bring successive suits for each installment as it falls due. He is bound, however, to reduce his damages as much as he can by other employment. It has been held that where there is delay in paying him without due cause, he may claim extra wages like other members of the crew. =6. Lien.=--As has been remarked the general rule is that the master has no lien on the ship for his wages. In the Orleans _v._ Phoebus, 11 Peters 175, wherein Phoebus sought to enforce a lien on the steamboat _Orleans_ for his wages as master, the Supreme Court said: By the maritime law the master has no lien on the ship even for maritime wages. This is supposed to be for the reason that he contracts on the personal credit of the owner and also because it would tend to impair the owner's personal confidence in his integrity. Another ground is that where the master collects the freight he can pay himself directly and so needs no lien. But a lien may be given by the terms of his contract or by a statute of the state from which the vessel hails; if it is, it will be enforced in the admiralty. He has no lien on the cargo belonging to the owner of the ship, and, according to the weight of authority, no lien upon cargo belonging to any other shipper. He has, however, as has been said, a lien on the freight earned by the vessel for his wages, disbursements and necessary liabilities. This may be asserted by withholding from the moneys collected by him or by an attachment or garnishment. In the Arcturus, 17 Fed. 95, the vessel had on board a quantity of telegraph poles owned by a shipper and intended for delivery at Sandusky, upon which the shipper was to pay freight in the usual way. Before the poles were unladen at Sandusky, the vessel was seized by the marshal under a libel filed by certain creditors, so that the master could not and did not unload the poles, and the owner was compelled to pay $70 to have them unloaded. In addition to this, before they were unladen the owner of the poles was compelled to pay into the registry of the court the entire freight which would have been earned had the vessel delivered the poles to him. The master filed a libel, asserting that the whole freight money should be applied to his unpaid wages, and claiming also a lien on the poles, the cargo, for his wages. The court found that the master had no lien on the cargo for his wages beyond the amount of the freight; that he was only entitled to the freight actually earned by the vessel, that being the freight less what it cost to unload at Sandusky, and that he was entitled to a decree for that part of the freight so actually earned, to be applied on his wages as master. Where the master performs seamen's duties in addition to his own it has been held he is not entitled to a lien for compensation for such work, but in some more recent cases such liens have been allowed. There is a substantial conflict of authority on this point. =7. Relations to Cargo.=--He has no authority to alter a charter party, nor to sign a bill of lading for goods not shipped or containing a misdescription of the cargo. He must not mis-date a bill of lading nor issue one contrary to the terms of the charter. He must see that the cargo is well and sufficiently stored in accordance with law and that the ship is not overladen. The law contemplates that the master himself must be a competent stevedore. Thus in the leading case of the Niagara, 21 How. 7, it is said: He (the master) must take care to stow and arrange the cargo, so that the different goods may not be injured by each other, or by the motion of the vessel, or its leakage; unless, by agreement, this duty is to be performed by persons employed by the shipper. In the absence of any special agreement, his duty extends to all that relates to the lading, as well as the transportation and delivery of the goods; and for the faithful performance of those duties the ship is liable, as well as the master and owners. Even where the shipper employs the stevedores, it remains the right and duty of the master to control them if they are endangering the ship's safety. Thus in the Elton, 83 Fed. 519, where the charter party provided that the stevedore was to be employed and paid by the contractor and was to load the steamer under the master's direction, it was said: At no time does the master lose his proper place in the control of his ship and everything connected therewith. The stevedore is not an independent contractor, doing the work, which, when completed, is to be turned over to the master for his approval or disapproval; but he must load the steamer at all times under the direction and subject to the control of the master. During the voyage and until the goods are delivered he stands as bailee and has a high degree of responsibility for their safekeeping. He must pursue the voyage without deviation or delay except for the purpose of saving life. He must be watchful to protect the cargo, in whole and in parts, as against deterioration and damage. Safe custody is as much a part of his duty as safe carriage and delivery. In case of emergency and necessity he becomes as much an agent of the cargo as of the owner of the ship and may sacrifice a part for the safety of the whole venture, or mortgage or sell the same, or tranship it. In the event of peril the duty and power devolve upon the master to determine whether a jettison be necessary. As the court said in Lawrence _v._ Minturn, 17 How. (U. S.) 100: If he was a competent master, if an emergency actually existed calling for a decision, whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision with due deliberation, by a fair exercise of his skill, and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common safety, because the person to whom the law has entrusted authority to decide upon and make it has duly exercised that authority. But though the master may jettison cargo to lighten a ship in peril, he may not, for that purpose, give cargo away. It is not his to give, and if he attempts to do so, the donee takes no title and is liable for the conversion of it as for embezzlement (The Albany, 44 Fed. 431). The duties and powers of masters of vessels in regard to cargo, as they develop out of the exigencies of navigation and the varied situation abroad, are much broader than those of the agents of carriers by land, because the circumstances are so very different. Such a master has authority to do whatever is really necessary to preserve the interests of an absent owner or consignees. He is bound to the exercise of diligence and good faith to give the owner or consignee timely information; and to follow instructions if they can be obtained. If his possession of the goods is interfered with by legal process or seizure, he must give notice, if possible, and in the meantime take all proper steps to protect or recover the goods. He may be bound to take legal proceedings or answer for the damages caused by his failure to do so. =8. Power to Sell or Mortgage Cargo.=--This power to dispose of the cargo arises out of the necessity of the case. The duty is to complete the voyage, if possible. Money for repairs and expenses can frequently only be secured by disposing of some of the property in the master's charge. If so, he has the requisite power; of course, he should first realize what he can on the credit of the ship and freight-money but after this he may resort to the cargo and pledge or even sell it accordingly. In the leading case of Post _v._ Jones, 19 How. (U. S.) 150, Mr. Justice Grier said: It cannot be doubted that a master has power to sell both vessel and cargo in certain cases of absolute necessity.... Without pretending to enumerate or classify the multitude of cases on this subject, or to state all the possible conditions under which this necessity may exist, we may say that it is applied to cases where the vessel is disabled, stranded, or sunk; where the master has no means and can raise no funds to repair her so as to prosecute his voyage; yet where the _spes recuperandi_ may have a value in the market, or the boats, the anchor, or the rigging, are or may be saved, and have a value in market; where the cargo, though damaged, has a value, because it has a market, and it may be for the interest of all concerned that it be sold. Such dealing with the cargo must be prudent and in the interest of the cargo-owner; the master must not sacrifice the cargo to the ship more than the ship to the cargo. If he can prudently delay for communication with the owner he must do so; the exercise of this power depends upon the necessity and the utmost good faith. The case of Australasian Steam Navigation Co. _v._ Morse, L. R. 4 P. S. 222; 1 Aspin. 407; 27 L. T. Rep. N. S. 357; 8 Moore P. C. N. S. 482; 20 Weekly Rep. 728; 17 Eng. Reprint 393, was decided by the Privy Council in 1872, on appeal from the Supreme Court for New South Wales. It appeared that a quantity of wool had been shipped in December, 1865, on board the _Boomerang_ by owners living inland, for transportation from Rockhampton to consignees in Sydney. The vessel stranded and filled and the cargo was so damaged by water that it became dirty, heated and liable to ignition. It was transferred to a relief vessel which had been sent out from Rockhampton and was returned to that place, where there were no facilities for storing or drying it, and it was in danger of total loss. There does not appear to have been any means of communicating promptly with the shippers, but there was testimony on the question whether it might have been possible to reach the consignees in Sydney, a distance of 900 miles, by telegraph, considering the imperfect state of the telegraph in New South Wales in 1865, the method of management of the particular telegraph line, and the fact that communication, to accomplish anything, must have been attempted on Sunday or on the next day which was Christmas. Under these circumstances, the master, after having the wool surveyed by the local Lloyds agent and a merchant, sold it without attempting to communicate. For the Privy Council, Sir Montague Smith announced the law as follows: The general principles of law are not in dispute, viz., that the authority of the master of a ship to sell goods of an absent owner is derived from the necessity of the situation in which he finds himself placed; and consequently that, to justify his thus dealing with the goods he must establish (1) the necessity for the sale; and (2) his inability to communicate with the owner and obtain his instructions. Under these conditions and by force of them the master becomes the agent of the owner, not only with power but under the obligation (within certain limits) of acting for him; but he is not in any case entitled to substitute his own judgment for the will of the owner in the strong act of selling the goods where it is possible, as hereafter explained, to communicate with the owner and ascertain his will. The Council defined the necessity of sale as meaning "that the course taken must be clearly highly expedient," "the best and most prudent thing to be done for the interest of the owner of the goods," and said: A sale of cargo by the master may obviously be necessary in the above sense of the word, although another course might have been taken in dealing with it; for instance, if, in this case, the wool, which had no value but as an article of commerce, could have been dried and repacked and then stored or sent on, but at a cost to the owner clearly exceeding any possible value to him when so treated, it would plainly have been the duty of the master to sell, as a better course for the interest of the owner of the property than to save it by incurring in his behalf a wasteful expenditure. In other words, a commercial necessity for the sale would then arise, justifying the master in resorting to it. On the subject of the necessity for communicating with the owners of the cargo, the Council say: The possibility of communicating with the owners must, of course, depend on the circumstances of each case, involving the consideration of the facts which create the urgency for an early sale; the distance of the port from the owners; the means of communication which may exist; and the general position of the master in the particular emergency. Such communication need only be made when an answer can be obtained, or there is a reasonable expectation that it can be obtained before the sale. When, however, there is ground for such an expectation every endeavor, so far as the position in which he is placed will allow, should be made by the master to obtain the owner's instructions. * * * * * There can be no doubt that the master is bound to employ the telegraph as a means of communication where it can usefully be done, but in this case the state of the particular telegraph, the way it was managed, and how far explanatory messages could be transmitted by it, having regard to the time and circumstances in which the master was placed, were proper subjects to be considered by the jury, together with the other facts, in determining the practicability of communication. The necessities which may arise in the course of the voyage are innumerable and can hardly be classified, but the settled and reasonable rule is that the power corresponds to the necessity at hand. By the contract of carriage, the shipper and consignee impliedly authorize the master, when he cannot obtain instructions, to do everything within the general scope of his employment which a rational man of business might believe that a rational owner would certainly do for himself if he were present under the circumstances at hand. And even if the acts of the master were beyond the ordinary scope of his authority, they may be ratified by his principals and every ratification is the equivalent of an original specific authority. So, while it is a general rule that an agent may not delegate his authority the master may, in proper cases, appoint another in his place and stead; and such appointee will have the like powers as the original master. Circumstances may even arise where the master may sell the cargo though the owner may be in port and does not approve his action. Thus in the case of the Brewster, 95 Fed. 1000, the ship had a cargo of coal. After commencing her voyage she was forced to put back in port. Part of the coal had become wet and liable to spontaneous combustion; it being dangerous to proceed with it, the master tendered it to the shippers, who refused to receive it. He thereupon sold it. The Court upheld his action as being for the general good of the ship and cargo. This, however, was in the exercise of the master's duty to protect the safety of the whole ship and must not be understood as modifying the rule that the master, when no considerations, except those relating to cargo, are in question, may not substitute his judgment for that of the owner of cargo, where the owner's will is ascertainable. It should be noted that all the master's powers in regard to the cargo depend on the necessity for their exercise and that, as long as that does not arise, he is really a complete stranger to the cargo between lading and discharge. While the voyage prospers he is only to carry it and must not intermeddle in any way. =9. Power to Sell Vessel.=--Under like circumstances of necessity, the master may sell the ship herself, on a home shore as well as abroad, although never in the home port. Good faith and overwhelming necessity must concur. For his own protection, he should have a thorough examination made by competent surveyors and their sworn report stating her condition and advising a sale. In some places, this may be accomplished through a court of admiralty and this is the safest way. This subject has been discussed more fully under the caption "Title and Transfer," § 16, "Sales by Master." The case of the _Amelie_, 6 Wall. 18, there quoted, is the leading case. It should be observed that, if the exigency is not too urgent to admit of the necessary delay, the master is bound to communicate with the owner before selling the ship, and the purchaser is bound to know the circumstances so far as he can ascertain them by reasonable inquiry. He will not acquire a good title if the emergency did not justify the sale, provided he could have so ascertained by investigation. =10. Power to Create Liens.=--This power is very broad. The master has an implied power to pledge the ship for all her necessities and thus to create all classes of contract liens upon her in the absence of the owner. The order of their priority is governed by the rules applicable to all maritime liens (see Chapter IX). He may create liens of materialmen for supplies, work, labor and repairs; of sailors for their wages; for all necessary services rendered the ship; advances of money; dockage; towage; and the like. So he may, involuntarily create liens upon her for torts, as by negligent carriage of cargo, collisions, or personal injury. The leading exposition of law on this subject is that of Justice Story in the early case of the _Aurora_, 1 Wheat. 96, decided in 1816, wherein it was said: The law in respect to maritime hypothecations is, in general, well settled. The master of the ship is the confidential servant or agent of the owners, and they are bound to the performance of all lawful contracts made by him, relative to the usual employment of the ship, and the repairs and other necessaries furnished for her use. This rule is established as well upon the implied assent of the owners as with a view to the convenience of the commercial world. As, therefore, the master may contract for repairs and supplies, and thereby, indirectly, bind the owners to the value of the ship and freight, so, it is held that he may, for the like purposes, expressly pledge and hypothecate the ship and freight, and thereby create a direct lien on the same, for the security of the creditor. But the authority of the master is limited to objects connected with the voyage, and, if he transcends the prescribed limits, his acts become, in legal contemplation, mere nullities. Hence, to make a bottomry bond executed by the master a valid hypothecation of the ship, it must be shown by the creditor that the master acted within the scope of his authority; or, in other words, it must be shown that the advances were made for repairs and supplies necessary for effectuating the objects of the voyage, or the safety and security of the ship; and no presumption should arise that such repairs and supplies could be procured upon any reasonable terms, with the credit of the owner independent of such hypothecation. If, therefore, the master have sufficient funds of the owner within his control, or can procure them upon the general credit of the owner, he is not at liberty to subject the ship to the expensive and disadvantageous lien of an hypothecatory instrument. =11. Duties on Disaster.=--If the ship becomes stranded, disabled or wrecked, the master is bound to use all reasonable efforts to save all that may be rescued out of the disaster. The maritime law contemplates that he must be the last man to leave the ship in every sense of the expression. He must be diligent to obtain the aid of salvors and to protect the property in his charge. As far as may be, the cargo must be saved, stored and transhipped to its destination. The crew must have provision made for return and the wreck itself preserved as far as it is of value. He cannot give away any of the property or needlessly sacrifice any of it. He should promptly communicate with his owners and underwriters, both ship and cargo, and, until lawfully superseded, has all the authority which the necessities of the situation demand. While the master is bound to follow instructions as to the course of his voyage, and may not deviate unless forced to do so by stress of weather or for the safety of vessel, crew or cargo, he may always deviate from his course for the purpose of saving life. He is not bound to lie by or delay his voyage for the purpose of preserving the property of third persons, though he may deviate, in the exercises of a sound discretion, to save property in peril. =12. Log Book and Protests.=--The log book is the ship's journal in which is entered her position from day to day, winds, currents, sea, course, speed, and all other matters of importance in relation to the vessel. The entries in it should be regularly and correctly made, as in the regular course of business, and when so kept, it will become a record of great importance in all matters relating to the ship's business and litigation. While the entries may be customarily made by the mate or other subordinate officer, the master should see that they are properly kept up and satisfy himself of their correctness as he is primarily responsible for all the transactions of the voyage. The statutes (U. S. Comp. St. 1916, § 8036) require every vessel making foreign voyages, or between Atlantic and Pacific ports, to have an official log book and charge the master with twelve classes of entries therein, under penalties. All cases of offenses or of misconduct by members of the crew are required to be recorded; also all cases of illness, death, birth and marriage on board; the name of any seaman who ceases to be a member of the crew; the wages of any seaman who dies during the voyage; the sale of the effects of any such seaman, and a description of any collision that may occur. In introducing a ship's log in evidence, it must be proved in the same manner as any other document; that is to say, it enjoys no special evidentiary status. In case of damage or disaster during the voyage, or suspicion thereof, the master should within twenty-four hours of his arrival in port cause a notary public or consul to "note a protest" in regard to the fact; this "noted protest" should be extended before a notary as soon thereafter as possible, and at any rate, on arrival at destination and while recollection is fresh. The extended protest will be upon the usual form and contain a plain account of the misfortune and damage. As it will form the basis of any claim of underwriters or adjustment of damages, great care should be taken to express the facts clearly and according to their legal results. The master is charged with this duty and should execute the protest, together with his officers and such of the crew as have knowledge of the facts involved. REFERENCES FOR GENERAL READING _Commentaries_, Kent, III, Lecture XLVI. _Shipping and Admiralty_, Parsons, Vol. II, Chapter XIV. _Sea Laws_, Jacobsen, Book II, Chapter I. Niagara, 21 How. 7. Nebraska, 75 Fed. 598. Rupert, 213 Fed. 263. Lombard S. S. Co. _v._ Anderson, 134 Fed. 568. Spedden, 184 Fed. 283. Yarkand, 120 Fed. 887. Ponce, 178 Fed. 76. Jenkins, S. S. Co. _v._ Preston, 186 Fed. 108. Ancaios, 170 Fed. 106. Aguan, 48 Fed. 320. Trigg, 37 Fed. 708. [5] There are a few instances in which a master need not be licensed. All masters of steamers must be licensed, all masters of sailing vessels of over 700 tons and all vessels of over 100 tons carrying passengers for hire (§ 4438). Other masters need not be licensed. [6] A question sometimes arises whether a particular individual occupies the position of master or not. The fact that the man is enrolled as master is not necessarily conclusive of this question. Where a man was clothed with and did actually exercise the duties of master during the illness of the registered master he was held to have been _de facto_ master and hence not entitled to a maritime lien for his wages (Hattie Thomas, 29 Fed. 297). On the other hand, the engineer of a dredge who was highest officer on the vessel and directed the firemen and other hands but who had no authority to engage or dismiss men or purchase supplies, was held not to be the master and his lien for wages was sustained (Atlantic, 53 Fed. 607). In the Calypso, 230 Fed. 962, it was said: "the master of a ship is _pro hac vice_ the agent of the owner and ... his appointment or authorization lies in contract, ... if the master has not been appointed by the owner enrollment cannot make him such." [7] The rules referred to are "Rules of Practice for the Courts of the United States in Admiralty and Maritime Jurisdiction on the instance side of the court." [8] In a number of leading cases attempts were made to hold the owner liable for shortage in cargo where the master had signed bills of lading for goods not actually on board. Among these are the Freeman, 18 How. 182; Grant _v._ Norway, 10 C. B. 665; McLean _v._ Fleming, L. R. 2 H. L. Sc. 128 (English cases), and American Sugar Refining Co. _v._ Maddock, 93 Fed. 980. The principle laid down in these cases is "not merely that the captain has no authority to sign a bill of lading in respect to goods not on board but the nature and limit of his authority are well known among mercantile persons." [9] Ragland _v._ Norfolk & Washington Steamboat Co., 163 Fed. 376. This was a libel _in personam_ in which the libellant claimed damages on account of an alleged improper arrest while a passenger on board respondent's vessel. The court said: "Officers of steamboats and passenger vessels should be exceedingly careful before putting a passenger under arrest. They are the servants of the passengers on their boats, paid for the purpose of treating them kindly. The trouble on this occasion arose from a misapprehension on the part of the captain of the steamer of his power and duty as master of the ship. The master of a passenger steamer is an exceedingly important officer. He should be of exceptional firmness, intelligence and character, and more than ordinarily endowed with common sense and tact and always gentle and courteous. He has vast power in dealing with passengers in situations that are liable to and do arise on his vessel, and he may in a proper case after exhausting pacific measures, place a passenger under arrest, but, to suppose, as he testified he did, that he could delegate this authority to minor officials or others on board, cannot be sanctioned. When the time comes to arrest passengers, an occurrence on a steamboat only second in importance to navigating the vessel in safety, it is his duty to properly care for and protect them as far as is reasonably possible, and personally to exercise the responsible duties at hand, and at least give personal direction to what is being done." The Lizzie Burrill, 115 Fed. 1015, with reference to the duty of the master toward the crew. The court quotes a number of American and English authorities. The syllabus summarizes the decision as follows: "It is the duty of the master of a ship while at sea to protect his crew from violence and brutal treatment by other officers under his command. "The master of a ship while on board is the agent of the owners in respect to all matters which come within the scope of his duty, and the owners and ship are liable in damages to a seaman, not only for the unwarranted ill-treatment of such seaman by the master himself, but for his failure to perform his duty to protect the seaman from assaults and ill-treatment by other officers." [10] The frequently misused term "freight" means the compensation for carrying the cargo and not the goods thereunder. [11] See Chapter XII, "Pilotage," _infra_. CHAPTER V SEAMEN =1. Favored in Maritime Law.=--The general maritime law has always endeavored to protect the rights of seamen and its solicitude for their welfare has been expressed in the laws of all commercial countries. They are, as Justice Story said in Brown _v._ Lull, 2 Sumner 449, "a class of persons remarkable for their rashness, thoughtlessness and improvidence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part incapable of duly appreciating their values. They combine in a singular manner, the apparent anomalies of gallantry, extravagance, profusion in expenditure, indifference to the future, credulity which is easily won, and confidence which is readily surprised. Hence it is, that bargains between them and shipowners, the latter being persons of great intelligence and shrewdness in business, are deemed open to much observation and scrutiny; for they involve great inequality of knowledge, of forecast, of power, and of condition. Courts of Admiralty, on this account, are accustomed to consider seamen as peculiarly entitled to their protection; so that they have been, by a somewhat bold figure, often said to be favorites of Courts of Admiralty. In a just sense, they are so, so far as the maintenance of their rights, and the protection of their interests against the effects of the superior skill and shrewdness of masters and owners of ships are concerned." Hence, from the ancient sea codes to the most recent legislation, there is a constant provision for their welfare and protection. Their occupation is an honorable one and has its privileges accordingly; it is also one of great responsibility and has its duties and the law has both in mind. =2. Who Are Seamen?=--The word "seaman" includes every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board of any vessel belonging to any citizen of the United States (R. S. 4612). A question sometimes arises whether a particular person occupies the status of seaman. Some discussion of this will be found in § 13 of this chapter, and in Chapter 4, § 2. =3. Contract.=--Their relation to the shipowner is one of contract. The contract is usually in the form of Shipping Articles and in writing. A form for use in foreign trade (with some exception) is given in Rev. St. § 4511 as amended. For other voyages it is not always essential that the contract be in writing. What its form and language, the law will practically construe it as containing certain underlying engagements by both parties;--on the part of the owner and master, that the wages shall be paid; the voyage legal; the ship seaworthy and fully equipped and supplied; the voyage definite and without deviation; the treatment by the officers, decent and humane; the food sufficient; care and cure in event of injury or sickness; and safe return to their own country;--and on the part of the seamen, to exert themselves to the utmost in the service of the ship; to have sufficient training and health for the positions which they profess; to report on board at the proper time and place and remain in the service until their engagements are performed; to be obedient to all lawful commands of the master and their superior officers; and to assist in maintaining good order and discipline throughout the ship. =4. Wages Secured.=--The payment of wages is amply secured. They have a prior lien upon the ship and freight which will attach to her last plank. The master and the owner are personally liable and there can be no limitation of liability in this respect. Such wages are exempt from garnishment or attachment by creditors of the sailor and he may sue for them without giving security for costs. If wages are unlawfully withheld, he may have double for each day's delay. =5. Forfeitures and Punishments.=--On the other hand, the seamen must perform their part of the contract. Refusal or neglect to work entails loss of wages, and wages are not due during a period of lawful imprisonment (Rev. St. § 4528). Desertion entails forfeiture of clothes left on board and wages earned; absence without leave, not amounting to desertion, forfeits two days' pay and expenses of a substitute; quitting the ship before she is in security means a forfeiture of not more than one month's pay; willful disobedience at sea will be punished by confinement in irons and further imprisonment on shore with loss of 4 days' pay. If continued, 12 days' pay is forfeited for each offense (Rev. St. § 4596); assaulting the master or mate and willfully damaging the ship or cargo are punishable criminally by imprisonment and forfeiture of wages. Corporal punishment is no longer permitted; its infliction is a misdemeanor punishable by the courts, and it also renders the owner and master liable for damages. The master may, however, use a deadly weapon when necessary to suppress mutiny but only when mutiny exists or is threatened. The laws of the United States on the subject of Merchant Seamen will be found in detail in Title LIII of the Revised Statutes and are collected with the modern amendments, including the La Follette Seamen's Act of March 4, 1915, and with full annotations in Volume 7 U. S. Compiled Statutes, 1916, pages 8772 to 8924. The Seaman's Act of March 4, 1915, is also found in 38 St. at L. 11-64. =6. Personal Injuries.=--Where a sailor is injured in the service of the ship he is entitled to care and cure at the expense of the ship, irrespective of any question of the negligence of any member of the ship's company and irrespective of whether the seaman was guilty of contributory negligence, but ordinarily, he can not recover damages unless fault can be brought home to the owner. He will also be entitled to his wages for the trip or voyage on which the injury occurred, unless discharged by voluntary consent under § 4581 Rev. St. before the voyage ends. In very recent years repeated assaults have been made upon the long established rule which prevented seamen from recovering on account of injury or death in line of duty. In Southern Pacific Co. _v._ Jensen, 244 U. S. 205, an employee engaged in maritime work attempted to recover damages for a maritime injury pursuant to the Workmen's Compensation law of New York. The Supreme Court held, that "Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country," and that in so far as the Workmen's Compensation law of a state sought to confer upon seamen rights inconsistent with the general maritime law, the state Workmen's Compensation law was unconstitutional. Thereupon Congress by the act of October 6, 1917, undertook to confer upon suitors in admiralty "the rights and remedies under the Workmen's Compensation Law of any state." Thereafter in Knickerbocker Ice Co. _v._ Stewart, decided May 17, 1920, the Supreme Court of the United States held that the act of Congress of 1917 was destructive of the uniformity of the principles of admiralty law, which the Constitution sought to preserve, and was therefore beyond the power of Congress to enact. Therefore, up to May 17, 1920, the date of the decision of Knickerbocker Ice Co. _v._ Stewart, the old rule of admiralty whereby sailors could not ordinarily recover damages for injuries in the course of their employment had successfully withstood all attacks by state legislatures and by Congress and remained the law. However, three weeks after the decision in Knickerbocker Ice Co. _v._ Stewart, Congress, by the Merchant Marine Act of June 5, 1920 (see Appendix), enacted the following: That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such action shall be under the court of the district in which the defendant employer resides or in which his principal office is located. This provision, which seeks to confer upon seamen the rights enjoyed by railway employees under the Federal Compensation Act, has not yet been construed by the courts. The rights of railway employees thus conferred upon seamen are those given by acts of Congress approved April 22, 1908, and April 5, 1910. These acts gave to the employees of railroads engaged in interstate and foreign commerce, a right of action against the employing carrier in case of injury or death of the employee, notwithstanding that the accident may have been caused by acts of a fellow servant or may have been due to one of the risks naturally incident to the employment, and notwithstanding that the plaintiff may have been guilty of contributory negligence, although in the latter case the damages are to be diminished in proportion to the amount of the employee's negligence. Suit may be brought in the state or federal courts, which are given concurrent jurisdiction in such cases. It should be observed that under neither the Merchant Marine Act nor the Railway Employers' Liability Acts is the jurisdiction to be exercised by the court sitting in admiralty. The jurisdiction invoked is that of the courts of common law. Where, however, there is negligence on the part of the shipowner in providing a seaworthy ship, or on the part of the officer in caring for the injured man, the admiralty will award damages; if there has been contributory negligence, it will not prevent recovery but the damages will be apportioned or divided (The Max Morris, 137 U. S. 1). The principle on which vessels are held liable for injuries to seamen due to unseaworthiness is simply an application of the rule of law that every master is bound to provide his servant with a safe place to work; that is to say, a place as safe as any prudent man would provide for the performance of work of similar character, and that failure to provide such a safe place is actionable negligence. In the Joseph B. Thomas, 86 Fed. 658, it was held that where an employee on a vessel placed an empty keg on a pile of hatchway covers in such a position that an accidental jar caused it to fall in the hatch and injure a stevedore, the master and the owners were liable and the ship was held for violation of the duty to provide a safe place to work. =7. Duties in Disaster.=--In case of shipwreck or disaster a sailor is bound to do all he can for the safety of the ship and cargo. This is in the line of his duty and does not merit extra pay. His lien for wages attaches to the last plank of the ship but he must do his share of the work required to preserve it. In the Shawnee, 45 Fed. 769, the ship had suffered greatly from a severe storm and went under Mackinac Island for shelter. Much extra work was required by the crew and when the time came to proceed on the voyage they told the master that they would not go on unless an extra allowance of $50 each was guaranteed. Under the stress of circumstances the master was constrained to acquiesce in the demand, but on arrival the owners refused to pay this extra amount although they tendered the regular wages. The sailors thereupon libeled the ship, but the Court, in a very emphatic opinion, declared that their conduct had amounted to mutiny and that their wages should be entirely forfeited. Numerous decisions illustrate these rules. In the Troop, 118 Fed. 769, a sailor fell from a yardarm and fractured his thigh shortly after the ship sailed; the captain might have put him in the port hospital but instead applied splints himself and sent the man to his bunk; he did nothing more for him until the vessel arrived at her destination, thirty-six days after, and even then neglected him for an additional five days before supplying proper medical care. The sailor suffered greatly during the voyage and became permanently injured. The Court held that the ship was liable for the master's failure to observe the rule of care to an injured sailor and awarded him $4,000 with 6 per cent interest. In the Margharita, 140 Fed. 820, the ship sailed from a port in Chili for Savannah. While off the west coast of South America and about to round Cape Horn a sailor lost his footing aloft and was precipitated into the sea. As he struck the water a shark, or some other marine monster, bit off his leg at the knee, but he was rescued by another of the crew who jumped after him. The ship was then about 7,000 miles from her destination. The master gave the sailor all the attention which the ship afforded and controlled the hemorrhage and inflammation by placing the stump in tar; he continued to give him regular attention during the voyage, detailed a man to supply his wants and provided him with a suitable diet; on arrival at Savannah he was immediately sent to the hospital. The Court held that there could be no further recovery inasmuch as the master had fully discharged all the obligations of the rule. =8. Offenses of Seamen.=--Discipline being essential to the welfare of the ship and all on board, the maritime law punishes offenses of seamen against its code. Disobedience or misconduct in a sailor can not be tolerated or the ship would be in constant peril and its business frustrated. But the punishment must be reasonable and in proportion to the offense. The law will not endure tyranny or cruelty in any form. Flogging is abolished and prohibited by law and, generally, the only forms of punishment which may now be employed are forfeiture of wages or clothing, confinement on board, disrating and imprisonment on shore. Where an emergency arises, instant obedience may be compelled by force on the part of the officers and master, according to the necessity of the case, even to the taking of life, but cases of this kind are rare. In any event, the punishment must be according to the exigency and not excessive or brutal. Unlawful orders may be disregarded and even the master arrested and confined if he attempts to commit a felony; but, in general, the sailor must not attempt to take the law into his own hands and it will be more judicious to submit to harsh treatment and seek his redress later in the courts. The ordinary offenses of seamen are classed as mutiny, inciting revolt, desertion, disobedience, assaults, theft, fighting, and tampering with the cargo; but, in addition, they are liable for all crimes and offenses which would be punishable as such if committed on shore. =9. When Entitled to Leave Ship.=--The sailor is not bound to continue in the ship when she becomes unseaworthy because his contract of service is based upon the condition that the ship is and shall be seaworthy. When such a condition exists, the crew is entitled to apply respectfully to the officers and urge that the ship return to port; if in port, they may request a survey and, if unseaworthiness is declared, the consul has authority to give them their discharge. =10. Desertion.=--In the maritime law, desertion consists in quitting the ship and service by a sailor, without leave and against his duty, without an intent to return. If not justified, it works a forfeiture of wages. The mitigating circumstances must be such as amount to a reasonable excuse, founded on gross misconduct of the master or hard usage. Slight and transient causes will not answer, especially where the desertion appears to have been deliberate and premeditated, and not the result of sudden impulse. It was formerly the law that a deserting seaman might be arrested and imprisoned on shore by local magistrates on the complaint of the master and so compelled to return to his service (Robertson _v._ Baldwin, 165 U. S. 275). Recent legislation, however, has repealed the older statutes and there are now no laws of the United States which authorize the imprisonment of seamen deserting from vessels owned by citizens of the United States. This is probably true also in the case of foreign-owned vessels within American ports (_Ex parte_ Larsen, 233 Fed. 708). Among the causes which have been held to justify desertion are sickness, unwholesome food, cruel treatment, deviation and unseaworthiness. But the justification must be clearly shown, for it is a serious thing to quit the ship, and the law will not permit it unless the reasons are sound and substantial. Of course, besides the forfeiture of wages which desertion entails, the deserter will be liable to the owner for such damages as his breach of contract may cause. The offense may be committed by any member of the ship's company. =11. Self-defense.=--Generally speaking, the remedy of the sailor for violence inflicted upon him on shipboard is to be sought in the courts of law alone. The exigencies of discipline require that, for the common good, authority on shipboard should not be resisted. Nevertheless cases occur where the right of self-defense may be lawfully claimed. Where the master assaults a seaman, the latter may endeavor to escape; if pursued and escape be impossible, and the assault continued, he may use necessary and equivalent force for his own protection. It should be remembered that the power of punishment on shipboard is vested in the master personally and that the law does not permit his delegating it to others. A mate has no legal right to enforce his orders by beating one of the crew. Up to about seventy years ago corporal punishment of seamen was permitted by law, owing to the nature and supposed necessities of the service, and no doubt officers find it hard to give it up. Courts of admiralty endeavor to deal with these cases in a practical way. Altercations and assaults between master and crew have never been treated by them like those redressed in the common law courts, where the slightest blow may be treated as a trespass to one's dignity and feelings of self-respect. The crew are to be protected from injury and the maritime law will amply vindicate all beatings, woundings and maltreatment, criminally and civilly. The right of self-defense is only a last resort and will seldom need to be invoked. =12. Lien for Wages.=--The seamen have a maritime lien for their wages in preference over all other liens except for salvage. They are said to be the wards of the admiralty and it endeavors to see them paid over all other creditors of the ship. Thus the lien has priority over towage, claims for supplies and repairs, breach of contract, and port dues. It will not be superior to a lien for collision damage, if their negligence contributed to the disaster, at least as far as prior wages are concerned. Subsequent wages, earned in bringing the ship back to port, stand on a different footing. This lien is said to inhere in the last plank of the ship and will be paid in preference to claims for penalties against the ship in behalf of the United States and port dues. The lien for wages exists in the home port of the vessel as well as in foreign ports. Where as sometimes in the case of a fishing voyage the crew has an interest in the result of the venture this does not affect the right to liens. The weight of authority in the more recent decisions, reversing the older rule, is to give a lien to stevedores, longshoremen, watchmen and ship carpenters against foreign vessels (that is to say vessels not in the home port) while the authorities are in conflict as to whether such liens lie against domestic vessels. The Merchant Marine Act of June 5, 1920, which is printed in full in the Appendix, § 30, Subsection M, expressly confers a lien for wages of stevedores, "when employed directly by the owner, operator, master, ship's husband, or agent of the vessel", and makes no distinction between the home port and any other. In the Ole Olson, 20 Fed. 384, a schooner was libeled for seamen's wages and two men intervened and sought to recover who had been employed as stone-pickers by the master, who was also managing owner, to gather stone on the shores of Lake Michigan and assist in loading the stone on board as cargo to be carried to Chicago. While engaged in this service they lived and slept on the vessel as she lay off shore and when the weather was such that stone could not be gathered, the schooner would run into port and on such occasions these men would lend a hand in hoisting sail. They did not accompany the vessel on her voyages as she had a full crew without them. The only question was whether they rendered maritime services and were therefore entitled to the seaman's lien for wages. The Court held that they were not, distinguishing the Ole Olson from the case of the Ocean Spray, 4 Sawy. 105, and several others. In the case of the Spray the libellants were shipped as sealers and were hired to take seal for the vessel at a stipulated sum per month. Their contract also bound them "lend a hand on board whither they were wanted." On the voyage they helped make and reef sail, heave the anchor and clear decks, but did not stand watch. They also procured driftwood and water for the use of the vessel. They thus aided in the navigation and preservation of the vessel and were colaborers in the leading purpose of the voyage. "Upon the principle applicable to surgeons, stewards, cooks and cabin boys (all of whom are entitled to the lien) they were to be considered as mariners." They were accordingly entitled to their maritime lien on the vessel. =13. Shipping Articles.=--The law provides (U. S. Comp. St. § 8300-8314) that the master of every vessel bound from a port in the United States to any foreign port overseas, or vice versa, shall make an agreement, in writing or in print, with each of the crew, containing particulars of the nature and duration of the voyage; the number and description of the crew; the time at which each is to be on board; the capacity in which each is to serve; the amount of wages which each is to receive; the scale of provisions which are to be furnished to each; any regulations as to conduct on board, fines, short allowances and other lawful punishments which may be agreed to; and any stipulations as to advances and allotments of wages, or other matters not contrary to law. Sections 8287-8297 provide for the appointment of shipping-commissioners in such ports of entry and ports of ocean navigation as require them; where no commissioners are appointed, the collector of customs or his deputy may so act; the duties of such commissioners are to afford facilities for engaging seamen by keeping a register of their names and characters; to superintend their engagements and discharge according to law; to provide means for securing their presence on shipboard according to their engagements; to facilitate the making of apprenticeships to sea service and to perform such other duties relating to merchant seamen and merchant ships as may be required by law. Section 4554 amended by the Act of August 19, 1890, provides that the commissioners shall arbitrate disputes between owners or masters and the crew on mutual application. Shipping articles should be in the printed form required by the statute and in common use; they should be signed by each seaman in the presence of a shipping commissioner, in duplicate, and one part retained by him; they should be acknowledged and certified under the commissioner's seal, to the effect that each understands what he has subscribed and, while sober, and not in a state of intoxication, acknowledges it as his free and voluntary act; the other duplicate should be delivered to the master and seamen subsequently engaging on the voyage should place their signatures thereon. The ship and also its officers are liable to penalties for shipping seamen without articles, but the requirement is excepted in the case of vessels engaged in the coasting trade and on the Great Lakes. When seamen are shipped in foreign ports where there is a consular officer of the United States or commercial agent, the master must obtain his sanction to the engagement, in substantially the same manner as in the case of a shipping commissioner at home. A copy of the articles, with the signatures omitted, must be posted on the vessel so as to be accessible to the crew, under penalty of one hundred dollars. Shipping articles for vessels in the coasting trade, in less detailed forms, are required by § 8311 and the master is made liable to a penalty of twenty dollars and the highest rate of wages for every seaman or apprentice carried without such an agreement. All shipments of seamen contrary to law are declared void; any seaman so shipped may leave the service at any time and recover either the highest rate of wages of the port from which he shipped or the sum agreed to be paid him when he went on board. =14. Wages and Effects.=--Sections 8315-8337a of the Compiled Statutes of 1916 and the Merchant Marine Act of 1920 (see Appendix) codify the law in these respects. The right to wages and provisions commences when the sailor begins work or at the time specified in the shipping-articles, whichever happens first; the right is in no way dependent on the earning of freight; where the term of the hiring is cut short by loss or wreck of the vessel, the sailor is entitled to his wages up to that time but no longer; he is to be ranked as a destitute seaman and given transportation to the port of shipment according to law; in case of improper discharge before the commencement of the voyage or before one month's wages are earned, the sailor may have a sum equal in amount to one month's wages as extra compensation over what he may have earned; the right to wages is suspended during the time a seaman unlawfully refuses to work; on coasting voyages, wages must be paid within two days after the termination of the articles or upon discharge, whichever first happens; on foreign voyages, or between Atlantic and Pacific ports, within twenty-four hours after the cargo has been discharged, or within four days after the sailor has been laid off, whichever happens first; and in all cases he may have at least one-third of the balance due him when he is discharged. Every master and owner who neglects to pay the sailor as required by law, without sufficient cause, must pay him double wages for every day during which payment is delayed beyond the periods mentioned. Every sailor on an American vessel is entitled to receive from the master, at every port where the vessel loads or delivers cargo during the voyage, one-half his wages then earned; the demand, however, may not be made oftener than once in five days. Failure to so pay wages releases the seaman from his contract and foreign sailors in harbors of the United States may have the benefits of this provision. It is unlawful to pay wages in advance, either to the sailor or to any other person on account of advances;[12] such payments constitute no defense to a subsequent suit. But a sailor may stipulate in the articles for an allotment to his grandparents, parents, wife, sister, or children, such allotment to be in writing and signed and approved by the commissioner. Sailors' wages are not subject to an attachment or garnishment from any court and no prior assignment of wages or claim for salvage is valid. The effects of deceased seamen must be taken in charge by the master; if he thinks fit, he may cause them to be sold at auction at the mast or other public auction; if so, an entry must be made in the log book, signed by the master and attested by the mate and one of the crew, showing the amount of money belonging to the party in question; a description of each article sold and the sum received for each; and a statement of the balance of wages due. If the vessel proceeds to a port of the United States, the master must account to a shipping commissioner within forty-eight hours. If she touches at a foreign port first, he must report the case to the United States consular officer there and conform to his instructions. Failure to observe these requirements may subject the master to a treble liability for the value of the effects involved. Unclaimed proceeds of such effects, after six years, are converted into the Treasury of the United States and become a part of a fund for the relief of disabled seamen of the merchant marine. =15. Protection and Relief.=--Sections 8343-8376 of the Compiled Statutes of 1916 contain numerous provisions for the protection and relief of sailors. Shipping commissioners are authorized to act as arbitrators on any question whatsoever between a master, consignee, agent or owner and any of the crew, if both parties agree in writing to submit it to him; his award is binding on both parties and any document under his hand and official seal purporting to be such, submission and award is _prima facie_ evidence thereof; in any proceedings relating to wages, claims of discharge of sailors, the shipping commissioner has many of the powers of a court in regard to the examination of witnesses and production of documents. Where complaint is made that a vessel is unseaworthy, the master must forthwith apply to the judge of the district court for the district in which the ship may be, or if such a judge is not available, to some justice of the peace, for the appointment of surveyors; three surveyors may be then appointed whose duty it will be to carefully examine the ship and report their findings to the judge, or justice; he shall thereupon decide whether the vessel is fit to proceed, or, if not, whether the necessary repairs should be made where she is lying or whether it is necessary for her to proceed to a port of repair; the master and the crew are bound to conform to the decision. The master must pay all the costs of such survey unless it is decided that the complaint was without foundation; if so, the costs, to be ascertained by the judge or justice, and reasonable damages for the detention, are payable out of the wages of the parties who complain; if it be adjudged that the vessel is fit to proceed on her intended voyage, or if after the required repairs are made the sailors or any of them refuse to continue on board, their wages may be forfeited. Similar provisions obtain when the ship is in a foreign port; there the consul is authorized to appoint surveyors or inspectors; such inspectors in their report shall also state whether in their opinion the vessel was sent to sea in an unseaworthy condition by neglect or design, or through mistake or accident; if by neglect or design, and the consular officer approves such finding, he shall discharge such of the crew as requested and require payment by the master of one month's extra wages or sufficient money for the return of the crew to the nearest and most convenient port of the United States; if the defects are found to be the result of mistake or accident, and the master shall in a reasonable time remove or remedy the cause of complaint, then the crew must remain on board and discharge their duty. Sending or attempting to send an American ship to sea in such an unseaworthy state as to make it likely that the life of any person will be in danger is a misdemeanor punishable by a fine not to exceed $1,000 or by imprisonment not to exceed five years, or both. Should any master or owner neglect to provide a sufficient quantity of supplies for a voyage of ordinary duration to a port of destination, and thereby cause the crew to accept a reduced scale, he will be liable to penalties from fifty cents to one dollar a day to each sailor prejudiced thereby; any three or more of the crew of a vessel in deep-sea service may complain of the bad quality of the provisions or water and have a due examination made thereof, and if deficiency is found a master must remedy the same under a penalty of not more than $100; every American vessel in ocean trade shall be provided with medicines and antiscorbutics; must keep on board appropriate weights and measures and be provided with at least one suit of woolen clothing for each seaman, and a safe and warm room for the use of seamen in cold weather; they must also be provided with a slop-chest containing a complement of clothing for the intended voyage for each seaman employed, including everything necessary for the wear of the sailor and a fair supply of tobacco and blankets; the contents of the chest shall be sold from time to time to any and every sailor applying therefor for his own use at a profit not exceeding 10 per cent. of the reasonable wholesale value at the port of shipment. The statutes also contain detailed provisions as to the numbers and qualifications of the crew for vessels of various sizes and waters; also as to ratings, examinations and certificates of service; also as to wages at sea and against undue or unnecessary labor on board; while vessels are in safe harbors no sailor can be required to do any unnecessary work on Sundays or holidays, and while in port nine hours constitute a day's work. REFERENCES FOR READING _Rights and Duties of Merchant Seamen_, George Ticknor Curtis, Boston, 1841; Little & Brown. _Commentaries_, Kent, III, Lecture XLVI. _Shipping and Admiralty_, Parsons, Vol. II, Chapter XV. _Master and Servant_, Labbatt, I; § 243-247; § 251c; § 416: II; § 489; 504; 678-682: V; § 2006-2012. Ixion, 237 Fed. 142. Catalonia, 236 Fed. 554. Strathearn, 239 Fed. 583. Imberhorne, 240 Fed. 830. Chicago, 233 Fed. 538. S. S. Co. _v._ Schmidt, 241 U. S. 245. Robertson _v._ Baldwin, 165 U. S. 275. Ross _v._ McIntyre, 140 U. S. 453. Endora, 190 U. S. 169. Dallemagne _v._ Moison, 197 U. S. 169. Osceola, 187 U. S. 190. [12] In Sandberg _v._ McDonald, 248 U. S. 185, the Supreme Court by a five to four decision, held that an advance made to a sailor before shipping on a British vessel, being lawful under British law, was properly deducted by the master in an American port from the one-half of earned wages demandable by the seaman in such port, notwithstanding such advance was unlawful under the American statute. Going further at the same term of court and with the same dissent, the court held in Neilson _et al_ _v._ Rhine Shipping Co., 248 U. S. 205, that advances to seamen shipped on an American vessel in a foreign port were not prohibited by the statute. The effect of these two decisions was that the prohibition of advances to seamen upon their wages was confined to American ports, but the Merchant Marine Act of June 5, 1920 (see Appendix) provides that if an advance be made to a seaman in any port, whether foreign or domestic, he may nevertheless, recover the full wages earned by him, including any sum that may have been advanced to him. In other words he may recover the amount advanced over again. Such advances are prohibited in American ports whatever the nationality of the ship. On the other hand, the act is applicable to a vessel in an American port no matter what her nationality. Thus in a recent case of Strathearn S. S. Co. _v._ Dillon, decided March 29, 1920, the Supreme Court unanimously held that foreign seamen on foreign vessels in American ports are entitled to the benefits of the act and may demand one-half of the wages earned, notwithstanding contractual provisions to the contrary, and that the vessel need not have been in an American port five days before the seamen may make the wage demand. To entitle the seaman to make the demand it is only necessary that the vessel shall load or deliver cargo before the voyage is ended, and in the port where the demand is made; that the voyage shall have been commenced at least five days previously; that five days shall have lapsed since the last previous demand. CHAPTER VI CARRIAGE BY SEA The purpose of the ship is the carriage of goods and passengers and the earning of freight- and passenger-money. The underlying purpose of the maritime law is to facilitate these transactions and provide reciprocal rights for the parties engaged in them, hence the ship will have a lien on the cargo for its freight, demurrage and other charges; and, correspondingly the cargo will have a lien on the ship for any damages it may sustain by breach of the contracts of carriage. A ship is held to a high degree of care for the cargo and the cargo-owner must be prompt in his relations to the ship. =1. Common and Private Carriers.=--The ship may be either a common or private carrier of goods or of passengers. In many respects carriage by water is only a subdivision of the general law of carriers and the more general principles apply as well to the ship as the railroad. The common carrier is one who offers to carry for all who may choose to employ him. The private carrier is one who transports by virtue of a special agreement. The private carrier appears more frequently in water carriage than in land transportation. Most ships, for example, carrying bulk cargoes by special arrangement are private carriers. Most passenger ships are common carriers of passengers. Ships carrying miscellaneous or package freight, and running over regular routes, are common carriers. In general the distinction is by what they profess or offer to do,--whether to carry generally for the public, or only by special agreements. =2. Liabilities.=--The liability of a private carrier may be more closely limited by agreement than that of common carrier, but in general it will be sufficient to consider his liability as that of a shipowner carrying goods for hire. That liability is practically very stringent; he is responsible for any damage to the goods in his charge unless he can show that it was occasioned by the act of God or the public enemy, subject to two important statutes,--the Limited Liability Act (Rev. St. §§ 4282-4289, Act of June 26, 1884) elsewhere considered, and the Harter Act of February 13, 1893, 27 S. 445. Under this last mentioned statute, if the ship is actually seaworthy in all respects at the commencement of the voyage, there is no liability for losses sustained by faults or errors in her navigation or management. The general scope of the Act is to prohibit stipulations in the bill of lading which curtail the shipowner's liability for negligence in the proper loading, stowage, care or delivery of the cargo and to exempt him from the consequences of faults or errors in navigation or management if the ship was seaworthy when the voyage began. The word "management" does not include acts of preparing the ship for the voyage; and where she had reached her destination and sank while being discharged on account of her unstable condition and a broken coal port, the fault was held not to be one in her management. =3. Seaworthiness.=--A warranty of seaworthiness underlies all the relations of ship and cargo. This means, primarily, that the vessel is responsible for loss or damage to the goods if she was not in a seaworthy condition when she commenced the voyage, and if the loss would not have arisen but for that unseaworthiness. This liability may frequently involve the owner personally, as when the defect is attributable to his own fault or want of care. He is held to warrant that she is fit to carry the cargo which she loads and with it to encounter safely whatever perils may be reasonably expected to ensue and assumes liability for any defects in hull, machinery or equipment, even if not discoverable by careful examination. The ship must be fit in design, structure, condition, and equipment to encounter the ordinary perils of the voyage. This includes a competent master and a sufficient crew. The test is, of course, a relative one and depends upon the facts and circumstances involved in each particular case. A ship may be perfectly seaworthy for a particular cargo and voyage and quite unseaworthy for another. It is frequently said that the warranty does not require an absolutely perfect ship and that the true criterion is that degree of fitness which the average prudent and careful owner requires of his vessel at the commencement of the voyage, having given due consideration to all the circumstances which may reasonably be anticipated to attend it. In the case of the Caledonia, 157 U. S. 124, it appeared that the vessel was chartered to transport cattle from Boston to Deptford. Sufficient fodder was provided for fifteen days, a longer period than the usual length of the voyage, being all the fodder customarily provided for such voyages. When nine days out from Boston in smooth water, the propeller shaft broke straight across in the stern tube. The breakage was due to weakening of the shaft in heavy seas on previous voyages. Its weakened and unfit condition existed when the vessel put to sea on the voyage under consideration, but the defect was invisible and could not have been detected by usual and reasonable means if the shaft had been taken out and examined. No negligence on the part of the owners was proven. Because of the breakage the voyage lasted twenty-five days and the cattle were put on short allowance of food. In consequence they were landed at Deptford in emaciated condition. They were sold in London on the first market day following their arrival. The shipper of the cattle sustained a loss due to their shrinkage in weight and to a fall in the market which occurred during the period of delay. Chief Justice Fuller in the opinion of the court reviewed many of the leading English and American cases, and held: The proposition that the warranty of seaworthiness exists by implication in all contracts for sea-carriage, we do not understand to be denied; but it is insisted that the warranty is not absolute, and does not cover latent defects not ordinarily susceptible of detection. If this were so, the obligation resting on the shipowner would be, not that the ship should be fit, but, that he had honestly done his best to make her so. We cannot concur in this view. In our opinion, the shipowner's undertaking is not merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she must be exposed in the course of the voyage; and, this being so, that undertaking is not discharged because the want of fitness is the result of latent defects. The warranty of seaworthiness implies that the vessel shall be fit for the particular service in which she is to engage. A vessel intended to be used in river navigation is not required to be made fit for ocean transportation. Taking into consideration the nature of the voyage, it has been said that: She must be so tight that the water will not reach the cargo; so strong that these ordinary applications of external force will not spring a leak in her or sink her; so sound that she will safely carry the cargo in bulk through these ordinary shocks to which she must every day be subjected. If she is capable of this, she is seaworthy; if she is not, she is unfit for the navigation of the river. (The Keokuk, etc. _v._ Home Ins. Co., 9 Wall. 526.) The opinion just quoted had reference to a barge in tow. The Court held that the barge was considered as belonging to the tug, which had her in tow, and that the warranty of seaworthiness extended to the barge equally with the tug. While under the act of February 13, 1893, (27 St. at L. 445, _supra_) the owner is relieved of liability to the cargo by reason of faulty navigation, the employment of a competent master and crew is implied in a warranty of seaworthiness and the owner is liable under the warranty if he fail to employ a competent personnel. In other words the relief from liability occurs where the owner had employed competent men, but they negligently or faultily operated the ship. Thus Justice Clifford in Germania Ins. Co. _v._ Lady Pike, 21 Wall. 1, said: (The vessel) must be provided with a crew adequate in number and competent for their duty with reference to all the exigencies of the intended route, and with a competent and skillful master, of sound judgment and discretion, and with sufficient knowledge of the route and experience in navigation to be able to perform in a proper manner all the ordinary duties required of him as master of the vessel. =4. Loading and Stowage.=--These are done in accordance with the provisions of the contract of carriage or custom of the port at which the cargo is taken on board. Proper loading and stowage is an important element of seaworthiness of the ship. The cargo must be so disposed as to keep her trim and seaworthy and also so that one portion may not injure another. This work is frequently done by stevedores, whose services, when employed by the ship, are now recognized as maritime and secured by a lien on the vessel. They are, however, subject to the master's control and he is not to take on more cargo than he thinks the vessel can safely carry nor permit its stowage to interfere with the general safety of the adventure. He may refuse to take on more cargo than in his honest opinion is prudent, and must not permit any overloading at all. A fair test is the depth which the vessel was constructed to draw or that which the master and others of experience on the spot believed to be proper. The shipper of goods by sea must disclose their real character and value. He is bound to know whether they have explosive or other dangerous qualities, and, if concealment has been practiced by him on the shipowner, he will be liable for all the damages sustained from their effects. In every shipment there is an implied warranty on the part of the shipper that his goods are not of a character to cause injury to other goods on board, unless otherwise specially stipulated, and he is held liable for all the consequences of its breach; if the carrier has thereby been obliged to compensate other shippers, he may recover over against the delinquent what he was so compelled to pay. In the case of Barker _v._ The Swallow, 44 Fed. 771, a small steamer, in use in the lumber trade on the Great Lakes, took a cargo of pine boards, laden as usual on deck. She encountered a strong wind and heavy sea, causing her to roll badly so that a portion of the lumber slid off the starboard side and another portion off the port side as the vessel careened in either direction. It was conceded that it was not the usage to lash deck loads of lumber vessels with ropes or chains, but with ordinary safe loading the boards would be held in place by the frictional contact of their surfaces under the weather conditions ordinarily encountered on Lake Michigan. The libellant (owner of the lumber) contended that too much lumber had been loaded upon the deck and thereby made her top-heavy, and caused her to roll more than she would have done had she not been overloaded on deck, and that the rough weather encountered did not amount to a "tempest". The Court held while a vessel is not liable for the loss of her deck-load when it is lost by stress of weather, or what can be properly called "a peril of the sea," yet, if she takes on so heavy a deck-load as to become top-heavy, and endangers loss of the deck-load, or puts it in peril in an ordinary wind, or anything less than a gale of wind, or such stress of weather as is clearly unusual, it should, I think, be accounted bad stowage and negligence. Overloading the vessel so as to render her unmanageable, or susceptible of becoming unmanageable, by such a wind as is shown to have prevailed on the night in question, is, I think, a manifest negligence on the part of the carrier, and such as should not acquit him of liability if the cargo is lost. In this case there was testimony that the vessel had carried much heavier deck cargo in safety, but the Court considered that this proved no more than her good luck. Where the particular method of stowage is determined by the shipper, and damage results, the vessel is not liable for damage to cargo so stowed. A distinction is also to be noted between underdeck cargo and cargo stowed on deck. These principles are illustrated by the case of Lawrence _v._ Minturn, 17 How. (U. S.) 100. In that case certain boilers and chimneys were shipped aboard the _Hornet_ and stowed on deck with the consent of their owner. The vessel encountered bad weather and began to roll gunwale deep, shipping large quantities of water, opening seams and endangering the safety of the underdeck cargo, as well as the lives of those on board. After consultation with his officers and members of the crew the master lightened ship by throwing overboard the deck cargo. The owner of the boilers and chimneys libeled the ship. In directing the libel to be dismissed the Supreme Court said: It was strongly urged by the libellant's counsel that the shipper could not be supposed to have, and should not suffer for not possessing, a knowledge of the capacity or sufficiency of the ship; that the carrier was bound to know that the instrument, by which he agreed to perform a particular service, was sufficient for that service; and that, as these carriers contracted to convey this deck-load to San Francisco, they were obliged to ascertain whether placing it on deck would overload their vessel. This appears to have been the ground on which the court below rested its decree. This reasoning would be quite unanswerable if applied to a shipment of cargo under deck, or to its being laden on deck without the consent of the merchant, or to a contract in which perils of the sea was not excepted. But the maritime codes and writers have recognized the distinction between cargo placed on deck, with the consent of the shipper, and cargo underdeck. There is not one of them which gives a recourse against the master, the vessel, or the owners, if the property lost had been placed on deck with the consent of the owner;... The carrier does not contract that a deck-load shall not embarrass the navigation of the vessel in a storm or that it shall not cause her so to roll and labor in a heavy sea as to strain and endanger the vessel. In short, he does not warrant the sufficiency of his vessel, if otherwise staunch and seaworthy to withstand an extraordinary action of the sea when thus laden. If the vessel is in itself staunch and seaworthy, and her inability to resist a storm arises solely from the position of a part of the cargo on her deck, the owner of the cargo who has consented to this mode of shipment, cannot recover from the ship or its owners, on the ground of negligence or breach of an implied contract respecting seaworthiness.... The master is bound to use due diligence and skill in stowing and staying the cargo; but there is no absolute warranty that what is done shall prove sufficient. In this connection, however, it should be noted that the foregoing decision has not been interpreted to mean that where a shipper assumes the risk of deck cargo he thereby bargains away his right to recover for loss of such cargo if the ship were inherently incapable of carrying it. Thus the court in the Royal Sceptre, 187 Fed. 224, where the shipper himself was the charterer and loaded the cargo on deck, said: Pressed to its logical limit, the untenable nature of the argument seems very plain; for if a vessel can become unseaworthy by piling up deckload, without any liability to the owner of the same, she may capsize as soon as her fasts are thrown off. Deck cargo at shipper's risk does not mean such absolute surrender of all rights. The risk assumed presupposes proper loading for deck stowage and a seaworthy ship. It is not thought that Lawrence _v._ Minturn asserts any doctrine opposed to this. It speaks only of a jettison; while, if even a jettison be rendered necessary by unseaworthiness _existing at commencement of voyage_, the ship is liable, as is shown by the summary of decisions given in Compania De Navigacion la Flecha _v._ Brauer, 168 U. S. 120, 121. =5. Wreck or Stranding.=--Shipwreck or disaster does not affect the title of the owners of the cargo but the goods themselves may become subject to superior liens for salvage and general average.[13] If the voyage is broken up the owner may take his property wherever he can find it, subject to such maritime liens as may have lawfully accrued and, also, in some cases, to a claim for freight in proportion to the part of the voyage which has been performed. In the absence of the owners, the master is the agent of all concerned and has as much authority as the necessities of the situation require. In practice almost all matters growing out of a disaster are dealt with by the underwriters. Cargoes are seldom uninsured. The owner should promptly notify his insurers or brokers and tender an abandonment and the underwriters will attend to the situation which develops. If the abandonment be accepted, the shipper receives the insured value of his goods and the insurers stand in his stead as owners. The policy will also ordinarily protect against the loss if less than total and cover all charges for salvage, general average, and warehousing to which the property may be subjected. The shipper and his representatives are entitled to a copy of the master's protest and all other information in regard to the disaster and also to be consulted in regard to operations for the release of the ship and cargo if they so desire. =6. Arrival and Discharge.=--It is the duty of the consignee of the cargo, apart from local custom or special contract, to be reasonably diligent to ascertain when the ship arrives with his goods on board and the master is not bound to seek him out and notify him.[14] He should, however, report at the Custom House or make such other public notification of arrival as is usual in the port. If the consignee does not appear to claim and receive his goods, the master may land and warehouse them at his expense. The master is bound to deliver the goods to the right person, that is, the person entitled to them as owner or as holder of the bill of lading and all outstanding bills of lading should be taken up. They are quasi-negotiable, and, in the hands of third parties, may become the basis of a claim for the goods. The consignee, producing a proper bill of lading, is, of course, entitled to inspect the goods before accepting them and the ship must afford him the opportunity even if the instructions be not to deliver them until paid for. If damaged, he may decline to receive them, but if he accepts he should closely observe the provisions of his contract in regard to notice and claim for damages. Most bills of lading contain provisions limiting the time within which claims may be made and these, when explicit, are enforced by the courts. Failure to present a claim in accordance with such stipulations will usually exonerate the carrier even if the damage was occasioned by his fault or negligence. This subject is fully discussed by the Supreme Court in the case of Constable _v._ National Steamship Co., 154 U. S. 51. The S. S. _Egypt_ arrived at New York from Liverpool at 1.45 P. M. and there being no room for her at her owner's pier, was taken to the pier of the Inman Company, where she was unladen, pursuant to a permit issued by the Collector of Customs whereby the cargo was allowed to remain on the wharf for forty-eight hours upon agreement by the owners of the ship that the goods should be at the sole risk of the owners of the ship who would pay the consignees the value of such cargo as might be stolen, burned or otherwise lost. Notice of the time and place of discharge was then posted upon the bulletin board of the Custom House in accordance with the usual practice, but no notice was sent to the consignee, nor did he have actual notice or knowledge of the arrival and unloading of the vessel. On the night of the day of the arrival the goods were burned on the pier upon which they had been unladen without negligence on the part of the owners of the _Egypt_. The bill of lading contained this provision: The goods to be taken alongside by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed by the master and deposited at the expense of the consignee, and at his risk of fire, loss or injury in the warehouse provided for that purpose or in a public store as the Collector of the Port of New York shall direct.... The United States Treasury having given permission for goods to remain forty-eight hours on wharf at New York, any goods so left by consignee will be at his or their risk of fire, loss or injury. The Court (Brown, J.) held: 1. That the stipulation in the bill of lading that respondent should not be liable for a fire, happening after unloading cargo was reasonable and valid. 2. That the discharge of the cargo at the Inman pier, was not in the eye of the law a deviation such as to render the carrier and insurer of the goods so unladen. 3. That if any notice of such unloading was required at all, the bulletin posted in the Custom House was sufficient under the practice and usages of the port of New York. 4. That libellants, having taken no steps upon the faith of the cargo being unladen at respondent's pier, were not prejudiced by the change. 5. That the agreement of the respondent with the Collector of Customs to pay the consignees the value of the goods was not one of which the libellants could avail themselves as adding to the obligations of their contracts with the respondents. =7. Freight and Demurrage.=--Freight is the price of transportation by sea and demurrage has been called a kind of extended freight but is more generally understood as the price of delay in loading or receiving the cargo on the part of the shipper or consignee. Freight must be earned by conveyance and delivery of the cargo but the ship is entitled to hold the goods until payment is made. The contract of affreightment is very succinctly described by Lord Ellenborough, in Hunter _v._ Prinsep, 10 East 378: The shipowners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the seas, or other unavoidable casualties; and the freighter undertakes that if the goods be delivered at the place of their destination he will pay the stipulated freight; but it was only in that event, viz., of their delivery at the place of destination, that he, the freighter, engages to pay anything. If the ship be disabled from completing her voyage, the shipowner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination; but he has no right to any freight if they be not so forwarded; unless the forwarding them be dispensed with, or unless there be some new bargain upon this subject. If the shipowner will not forward them, the freighter is entitled to them without paying anything. One party, therefore, if he forward them, or be prevented or discharged from doing so, is entitled to his whole freight; and the other, if there be a refusal to forward them, is entitled to have them without paying any freight at all. The general property in the goods is in the freighter; the shipowner has no right to withhold the possession from him, unless he has either earned his freight, or is going to earn it. If no freight be earned and he decline proceeding to earn any, the freighter has a right to the possession. Where a ship does not "break ground," that is to say, does not commence her voyage at all, as in the case of the Tornado, 108 U. S. 342, in which it appeared that the vessel was destroyed by fire before sailing, the contract of affreightment is dissolved, or does not become effective, and the shipper cannot recover freight which she did not even begin to earn. The lien for freight is a qualified one and will be lost by an unconditional delivery. The same is true of demurrage but the personal liability of the shipper or consignee will, of course, remain. The amount of freight is usually fixed by agreement and specified in the bill of lading. So, also, are clauses in regard to demurrage. Strictly speaking, the latter can only be recovered where it is expressly reserved in the contract of carriage, but, where such stipulations have been omitted, the same result is sometimes obtained by an action for damages in the nature of demurrage on account of wrongful detention of the ship. The question of whether the ship has been unreasonably delayed or wrongfully detained is often a very confused one and its solution depends to a great extent on the surrounding circumstances. When emergency demands prevail and ports are crowded, the ship assumes some of the incidental risks of delay in obtaining and discharging her cargo, and, unless the contract is plain, can hardly insist upon more than the same treatment as others in similar situations are obtaining. When disputes arise, neither party should press his position to the extent of causing further delay, as by withholding or refusing the goods. Admiralty practice abounds in opportunities to prevent unnecessary delay by bonds or stipulations and the parties should take advantage of these or risk the disfavor of the court in which their litigation proceeds. =8. Unfair Freight Rates.=--The Merchant Marine Act of June 5, 1920 (see Appendix), forbids and makes a misdemeanor the allowance of deferred rebate of freight to any shipper; the use of fighting ships, _i.e._, vessels used for reducing competition by driving any carrier out of the trade; retaliation against other shippers by refusal of space accommodations when the same are available, and the making of any unjustly discriminatory contract with any shipper based on the volume of goods offered, or the making of any unjustly discriminatory charge against any shipper in the matter of accommodations, loading and landing or settlement of claims. The Shipping Board is authorized to investigate alleged violations of these provisions and the Secretary of Commerce is directed to refuse the right of entry to any ship owned or operated by a carrier whom the Shipping Board has found to be guilty of such violations. =9. Passengers.=--The carriage of passengers by water is regulated by substantially the same rules in regard to fares, tickets, special contracts and baggage as carriage by land. The passenger is entitled to a reasonable amount of baggage having regard to his station in life and the character of the journey. As to articles which he retains in his personal custody the carrier is not an insurer but is liable only for negligence; the mere fact of loss creates no presumption against the carrier (Clark _v._ Burns, 118 Mass. 275). The carrier is liable for articles stolen from the passenger by its employees (Minnetonka, 146 Fed. 509) and the conditions and limitations as to value of baggage usually printed on the tickets are of slight value in the courts (Majestic, 166 U. S. 375). =10. Reciprocal Duties.=--The real differences between rules of law applicable to land and sea travel result from their own peculiar circumstances. Thus, the relation of passenger and ship necessarily implies something more than mere ship room and personal existence on board. For the time being the ship's company and the passengers constitute a community by themselves and remote from the rest of the world. There must be a certain amount of mutual toleration and concession. The situation requires, indeed, not mere toleration but respectful treatment,--"That decency in demeanor which constitutes the charm of social life, that attention which mitigates evils without reluctance, and that promptitude which administers aid to distress." (Chamberlain _v._ Chandler, 3 Mason 242; Western States, 151 Fed. 929.) The passengers must be prepared to submit on proper occasions to the authority of the master, which may, indeed, occasionally become despotic where the safety of the ship is involved. He may compel passengers to work at the pumps, for example, in the face of actual danger (1 Parsons' Shipping and Admiralty, 637) or even to risk their lives if the common safety requires it (Boyce _v._ Bayliffe, 1 Campbell, 58). Of course this power must be judiciously exercised and if it is overstepped the law will afford redress. The old case of Prendergast _v._ Compton, 8 C. & P. 454, is illustrative; the defendant was master of a ship from Madras for London, in the days when long voyages around the Cape were common. The plaintiff was a passenger whose table manners were distasteful to the other members of the master's table; he first attempted to correct them by mild suggestions and remonstrances, but the plaintiff responded by threatening to cane the master, who thereupon excluded him from the cabin and otherwise subjected him to discipline during the voyage. On arrival in port the plaintiff brought this action and the case affords an interesting discussion of the subject; the question was finally left to a jury who concluded that the master had exceeded his authority and allowed the plaintiff twenty-five pounds as damages. The maritime law required a high degree of care for the protection of the passenger from personal injury. A ship must answer for such damages as might have been avoided by the exercise of unusual diligence and extraordinary skill. Although not technically an insurer, a presumption against a ship will be heavy in such cases, and ordinarily damages will follow unless it can be shown that the injury was entirely due to the passenger's own fault.[15] =11. Baggage.=--Passengers' baggage or luggage is in, substantially, the same class as cargo as far as the liability of the ship is concerned. Some cases have held that there was an exception of property which the passenger retained in his own custody but the general rule is that this only relieves the carrier where the passenger's own negligence occasioned the loss; in such cases the passenger must show that the shipowner failed to exercise reasonable and proper care. The matter is frequently covered by express stipulations in the ticket or contract of carriage but these will not usually be enforced in the American courts unless reasonable and plainly agreed to by the passenger. Thus arbitrary limitations of the value of the baggage of a steamship passenger are void. Passengers' baggage is not limited to wearing apparel and similar articles, although the general rule is that it must be confined to such articles as are reasonably required for the purposes of the journey, having in mind its general scope and the station and circumstances of the passenger. It is not permitted to impose extraordinary liabilities upon the ship by carrying as baggage goods of great value which should be otherwise shipped. In a recent case recovery was allowed for the loss of a manuscript of a manual on Greek grammar contained in the passenger's trunk; he valued it at $5,000; the Court, however, allowed only $500, on the theory that it was an imposition on the carrier to place so valuable an original in his baggage when he might have carried an equally serviceable copy. =12. Personal Injuries.=--Passenger carriers by water are subject to the same general liabilities of carriers by land. The highest degree of care for the safety of the passenger is required of the ship and negligence is presumed where an injury is sustained on board. It is the duty of the vessel to protect its passengers from harm by reason of defects in construction or acts of the ship's company or other passengers. Actions for damages may be brought against the ship or the owner. An injured passenger is entitled to at least the same degree of care and attention that a member of the crew is and may have an additional claim if this is neglected. The cases exhibit a wide range of injuries on shipboard for which recoveries have been allowed; thus, where a sailor carelessly fell from the foretopmast upon a passenger, a libel was sustained; so where a passenger was thrown from his berth by the pitching of the ship in a storm, through absence of a protecting board; so for failure to accord to a passenger respectful treatment by the officers and crew; for failure properly to protect exposed parts of machinery and openings in the deck; failure to provide a sufficient supply of wholesome food; furnishing unsanitary drinking water; and, indeed, for the negligence of those conveying passengers to and from the ship or on excursion trips on shore when advertised as a part of the voyage in question. The ship is required to have a doctor on board for the care of passengers but, when due care has been exercised in his selection, there is no liability for his mistakes or negligence in his professional work. Cases abound illustrative of these principles. For example the old cases of Behrens _v._ Furnessia, 35 Fed. 798, and the City of Panama, 101 U. S. 453, in both of which passengers were injured by falling down open hatchways, which were customarily kept closed, and the more modern case of Dempster Shipping Co. _v._ Pouppirt, 125 Fed. 732, where the plaintiff while on deck was struck by a beam which was being thrown overboard. In the two cases first mentioned plaintiffs recovered damages, it being considered that under the circumstances the ship was negligent in leaving open and unguarded hatchways which were customarily kept closed and over which passengers were accustomed to pass. In the case last cited plaintiff failed to recover because it appeared that he had voluntarily placed himself in dangerous proximity to boards that were being swung over the side. The law is quite fully reviewed in these cases. In the City of Panama, it was said: Owners of vessels, engaged in carrying passengers, assume obligations somewhat different from those whose vessels are employed as common carriers of merchandise. Obligations of the kind in the former case are, in some few respects, less extensive and more qualified than in the latter, as the owners of the vessel carrying passengers are not insurers of the lives of their passengers, nor even of their safety; but in most other respects the obligations assumed are equally comprehensive and even more stringent.... Passengers must take the risk incident to the mode of travel which they select, but those risks in the legal sense are only such as the utmost care, skill and caution of the carrier, in the preparation and management of the means of conveyance are unable to avert. In the case of Shipping Co. _v._ Pouppirt, the court quoted with approval the following language from Railway Co. _v._ Myers, 80 Fed. 361: If a passenger of mature age leaves the place which he knows has been provided for him, and, without any occasion for so doing, or to gratify his curiosity, goes to another, where the dangers are greater, or places himself in a dangerous attitude, which he was not intended to assume, or if he disobeys any reasonable regulation of the carrier, it should be held that he assumes whatever increased risk of injury is incurred in so doing. =13. Loss of Life.=--Until March 30, 1920, the general maritime law did not give any right to recover for loss of life. On that date an act of Congress was approved, the text of which follows: That whenever the death of a person shall be caused by wrongful act, neglect or default occurring on the high seas beyond a marine league from the shores of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representatives of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued. Sec. 2. That the recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought. Sec. 3. That such suit shall be begun within two years from the date of such wrongful act, neglect, or default, unless during that period there has not been reasonable opportunity for securing jurisdiction of the vessel, person or corporation sought to be charged; but after the expiration of such period of two years the right of action hereby given shall not be deemed to have lapsed until ninety days after a reasonable opportunity to secure jurisdiction has offered. Sec. 4. That whenever a right of action is granted by the law of any foreign State on account of death by wrongful act, neglect, or default, occurring upon the high seas, such right may be maintained in an appropriate action in admiralty in the courts of the United States without abatement in respect to the amount for which recovery is authorized, any statute of the United States to the contrary notwithstanding. Sec. 5. That, if a person die as the result of such wrongful act, neglect, or default as is mentioned in section 1 during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this Act for the recovery of the compensation provided in section 2. Sec. 6. That in suits under this Act the fact that the decedent has been guilty of contributory negligence shall not bar recovery, but the court shall take into consideration the degree of negligence attributable to the decedent and reduce the recovery accordingly. Sec. 7. That the provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this Act. Nor shall this Act apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone. Sec. 8. That this Act shall not affect any pending suit, action, or proceeding. It will be observed that this act places loss of life on the high seas in the same category as personal injuries. The suit is to be brought by the personal representative of the decedent for the benefit of the decedent's wife, husband, parent, child or dependent relative. It would appear that if there are no such persons an action could not be maintained. This would seem to exclude a right of action where the decedent leaves only creditors or heirs of more remote degree than those enumerated. Nearly all the states have statutes providing for recovery on account of loss of life at sea and these statutes have hitherto been enforced in the admiralty courts. Section 7 provides that the federal act shall not affect rights of action or remedies for death provided by state laws. The act is broad enough in terms to include a right of action for the death of seamen, but there is another statute covering such cases (see Chapter V, § 6, _supra_). The act does not affect the right of the owners of a ship to limit their liability. Claims for loss of life when properly _payable_ under the act would apparently be included among claims to be paid out of the limited liability. The act does not enlarge the responsibility of the owners. Whether they are responsible _in personam_, or whether the vessel is solely responsible _in rem_ depends on the privity or knowledge of the owner, as discussed in Chapter VIII, § 9 _infra_. REFERENCES FOR GENERAL READING _Carriage of Goods by Sea_, T. G. Carver. London, 1909; Stevens and Sons, Ltd. _Law of Carriers_, E. P. Wheeler. New York, 1890; Baker, Voorhis & Co. _Maritime Law_, Albert Saunders. London, 1901; Sweet & Maxwell, Ltd. Fitzgerald, 212 Fed. 678. Wildcroft, 201, U. S., 378. Sumner _v._ Caswell, 20 Fed. 249. Dan, 40 Fed. 691. Harlem, 27 Fed. 236. Hattie P., 63 Fed. 1015. Manitoba, 104 Fed. 145. Majestic, 56 Fed. 244. Normania, 62 Fed. 469. Kensington, 183 U. S. 263. [13] See p. 181. [14] Prior to the advent of steam navigation this was not the rule. A carrier, in order to discharge his liability, was obliged to deliver the cargo upon the usual wharf of the vessel, and give actual notice to the consignee, if he were known. [15] See § 2, this chapter, _infra_. CHAPTER VII CONTRACTS OF AFFREIGHTMENT, BILLS OF LADING AND CHARTER PARTIES =1. Definitions.=--Contracts of affreightment are for the carriage of goods in vessels. This definition is sufficiently comprehensive to include contracts evidenced by bills of lading and charter parties. In practice the expression, "contracts of affreightment," is commonly used in a somewhat narrower sense to indicate those cases in which a vessel is operated by her owners on their own account, contracting directly with the shippers. A bill of lading is the document issued for carriage of goods which form only a part of the cargo; it is both a receipt and a contract of carriage. A charter party is a contract in writing by which the shipowner lets the ship in whole or in part. It corresponds to a lease of lands or buildings. The name comes from the fact that it was formerly prepared on a card which was then cut into two parts from top to bottom (_carta partita_) and each of the parties retained one for production when required and thus prevented counterfeiting. By an order dated October 1, 1920, made pursuant to the provisions of the Merchant Marine Act (see Appendix), the Shipping Board requires two certified copies of every charter or contract of affreightment made on American or foreign steam or sailing vessels leaving continental United States to be filed with the Chartering Executive Committee, 45 Broadway, New York, which will then issue a certificate of filing. Unless this is done, clearance will be refused the vessel; but where there is not time to file certified copies before sailing, a letter or telegram to the Committee, giving all details of the contract, will answer the purpose. General cargo and passenger vessels, those in ballast and those carrying cargo for owners are not subject to this regulation. Freight is the price of the carriage of goods by sea under a bill of lading, and also the sum agreed on for the hire of the ship under a charter party. Before discussing the particular features of these contracts it will be well to observe certain elements which enter into substantially all contracts for the carriage of goods for hire. These are the warranty of seaworthiness, the obligation against deviation and the exemption of the carrier from liability on account of the perils of the sea. In the Chapter, "Liabilities and Limitations," § 10, will be found a discussion of the Harter Act. This must be taken into consideration in connection with these subjects. =2. Seaworthiness.=--The warranty of seaworthiness underlies all contracts between the vessel and the shipper. It is an implied warranty on the part of the owner that the vessel is seaworthy, and sufficient for the use to which she is to be devoted. This warranty may be modified between the parties as they see fit by express agreement or necessary implication; a man may hire an unseaworthy boat and agree to put her in good condition; a charterer who examines and accepts a ship whose condition is defective cannot complain of an injury to the cargo caused by such defects. Otherwise the warranty subsists and the charterer cannot be held liable to the owner for depreciation in the ship resulting from unseaworthiness and has also the right to cancel the charter on the same ground. He may also hold the owner for such damages as he is obliged to pay third parties on account of unseaworthiness. This warranty, unless restricted by agreement, extends to latent or hidden defects, since it requires that the ship be seaworthy at the commencement of the voyage and is not satisfied by the fact that the shipowner does not know her to be unseaworthy or has used his best efforts to make her seaworthy. It runs up to the time she breaks ground for the voyage, but is modified by the results of subsequent excepted perils until it is reasonably practicable to repair them. In Bowring _v._ Thebaud, 56 Fed. 520, it was held: The shipowner in every contract of affreightment impliedly engages with the shipper of the goods that his ship on the commencement of her voyage is seaworthy for that voyage and supplied with a competent crew. And the following statement of the law, from Carver on _Carriage by Sea_, was approved: The warranty of seaworthiness for a voyage must be satisfied at the time of sailing with the cargo. It is not sufficient that the ship was fit for the voyage while the cargo was being taken on, if she became unfit before she started. The warranty in truth appears to be a double one, viz., that the ship shall be fit to receive the cargo when receiving it and shall be fit to sail at the time of sailing. The Court proceeded: The warranty that the vessel is tight and fit for the employment for which she is offered,--that is, for the contemplated voyage on which she is to carry cargo,--is the very foundation and substratum of the contract of charter. The exception in a charter party as to dangers of the seas and navigation is not applicable to the perils and dangers which arise from the breach of the owner's obligation. Consequently it does not apply to the warranty of seaworthiness. Undoubtedly in cases where, under the language of the charter party, the warranty is satisfied if the vessel is seaworthy at the commencement of a voyage preliminary to her being laden, the shipowner is relieved by the exception from liability for any peril of the seas or navigation which are subsequently encountered without fault or negligence on his part.... In all of these adjudications, the question was as to the meaning of the contract of the parties. This must be decided in each case by applying the rules of interpretation to the contract on hand. =3. Deviation.=--The ship must cover the proposed voyage without deviation. Deviation is defined to be "a voluntary departure without necessity or reasonable cause, from the regular and usual course of a voyage" (Hostetter _v._ Park, 137 U. S. 30). Deviation makes the carrier liable for losses occasioned thereby as an insurer notwithstanding any limitation of liability in the contract of carriage. It may be excused for the purpose of saving life or avoiding perils if the master acts in accordance with sound judgment, and it is excused if it be the custom of the trade to put in at a particular port on similar voyages. The consignee, if he intends to insist upon the deviation as a defense to his liability for freight, should refuse to receive the cargo. An instructive discussion of the rule with regard to deviation is found in the case of the Indrapura, 171 Fed. 929, where a vessel bound from Hong Kong to Portland, Oregon, was placed on a drydock at Hong Kong without maritime necessity and there caught fire, whereby the cargo was injured. The owners of the cargo libeled the ship for their damages, alleging that the unnecessary docking of the ship was a deviation. The Court said: The term "deviation" in the law of shipping has at the present day a varied meaning and wide significance. It was originally employed no doubt, for the purpose its lexicographical definition implies, namely, to express the wandering or straying of a vessel from the customary course of voyage; but it seems now to comprehend in general every conduct of a ship or other vehicle used in commerce tending to vary or increase the risk incident to a shipment. Thus delay in starting a shipment when unreasonable or unexcused came to be regarded as a deviation, not because the vehicle employed departed from the usual route of travel, but because the risk of shipment was changed or increased, and became, in effect, not the same as the one with reference to which the parties contracted. And in Bulkley _v._ Insurance Co., Fed. Cas. No. 2,118, it was said: The shortness of time or distance of deviation is immaterial if voluntary and without necessity, and not justified by usage. The contract of carriage frequently purports to give the ship liberty to make deviation. This is construed strictly against the owner of the vessel. She may make only "reasonable deviation." She may call at a port lying directly on the route of her voyage, but may not go out of her way to any considerable degree, and if she does so and the shipper is damaged the exemption will not avail to protect her owner. =4. Perils of the Sea.=--Almost every contract in respect of employment of the ship contains an express or implied exception of perils of the seas. This provides an exemption of liability on account of losses caused by these perils. These casualties cannot be accurately defined. The expression denotes accidents peculiarly incident to navigation, whether on lake, river, or the deep sea, not attributable to any human agency or intervention. It is rather more comprehensive than the "acts of God," but by no means includes all the dangers which may occur while journeying on the sea. Collision is a peril of the sea if it occurs without fault of either ship but not if by reason of the negligence of the carrying ship. Tempests, rocks, shoals, icebergs and other obstacles are within the expression; so are incursions of sea water, which damage the goods, as well as such bad weather as prevents ordinary ventilation and causes the cargo to heat and sweat. Where the peril is the proximate cause of the loss, the shipowner is excused. =5. Fire.=--Sec. 4282, U. S. Rev. St., is as follows: No owner of any vessel shall be liable to answer for or make good to any person any loss or damage which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner. It will be noticed that while this statute provides complete protection against fire on shipboard it does not protect against liability for damage by fire occurring on shore. To cover this it is common to insert in the contract of carriage an exemption from loss "before loading in the ship or after unloading." Such an exception is upheld by the courts where fire is not attributable to the neglect of the owner of the ship. Such a case was that of Constable _v._ National Steamship Co., 154 U. S. 51, where goods were delivered on the pier of the Steamship Company and injured by fire before they were laden. The Court held that the clause in the bill of lading, excepting loss by fire "before loading in the ship or after unloading," was a valid defense. =6. Restraint of Princes.=--The contract usually contains a provision exempting the shipowner from liability for damage due to "restraint of princes." This quaint phrase means any kind of governmental action which interrupts the voyage, or otherwise prevents the performance of the contract. These restraints occur most often during war, although they may happen in time of peace, as in the case of detention in quarantine. If the restraint results from some action taken by the shipowner, such as the taking on of contraband goods, the clause will not relieve him from liability. A simple illustration of the restraint of princes clause appears in Allanwilde Transport Corp. _v._ Vacuum Co., 248 U. S. 377, where a sailing vessel, the _Allanwilde_, was chartered to the libellants for the transportation of a cargo of oil and nails to Rochefort, France. The freight was prepaid. She started on the voyage and while she was at sea the government prohibited sailing vessels departing from the United States on voyages which would carry them through the war zone. The vessel ran into bad weather and was obliged to put back to the United States for repairs. By reason of the governmental order she did not resume her voyage. The owners of the cargo libeled the vessel to recover the prepaid freight. They also presented a claim for damages. The Court held that the restraint of princes clause of the charter party was a valid defense to the suit. Thus the vessel retained the freight which had been prepaid, although the voyage did not take place, and the cargo-owners did not recover their damages. =7. Freight.=--(a) _Dead Freight._--In case the charter party provides for the shipment of a full cargo by the charterer and compensation to the owner of the ship is payable per unit of cargo, the shipowner will be entitled to recover from the charterer the amount of freight which would have been payable by so much cargo as could have occupied the space left vacant. This is called dead freight. On the other hand cases arise in which the owner has to pay dead freight to the charterers. This occurs where the compensation for the ship is a lump sum and the owner fails to load a full cargo. (b) _When Freight is Earned._--Freight is earned when the goods have been carried to their destination and not until then. If it be paid in advance and the goods do not arrive at destination it must be refunded. Of course, the parties may by their express stipulations in charter parties, bills of lading and other forms of agreement change these rules, and frequently do so. For example it is sometimes provided that prepaid freight shall be considered earned on the shipment of the goods, or if the ship be lost the freight shall not be refunded. Such bargains are, of course, entirely legal and will be enforced by the courts according to their tenor. Charters sometimes provide for the carrying of cargo out and back. Here the terms of the contract with reference to the outbound and homeward-bound voyage are inseparable. No freight is earned until the ship returns with the homeward-bound cargo. But if the contract can be construed so as to regard each voyage separately, the freight for the outbound voyage will be earned at destination whether the ship returns with cargo or not. =8. Contracts of Affreightment.=--Where the contract is not plainly a demise of the ship, i.e., a conveyance which turns over her full operation and control, it will not be so interpreted, and the owner will be in a position of a carrier of goods or as himself contracting for such other service by the ship as the charter requires, that is to say, the contract is one of affreightment. Thus in Hagar _v._ Clark, 78 N. Y. 45, it was held: If it remains doubtful whether the charterers were to have sole possession and control of the vessel during the voyage or were to be constituted owners _pro hac vice_, then the general owners must be deemed such for their rights and authority continue until displaced by some clear and definite transfer of them. The legal presumption is in favor of continuance of ownership and against any transfer of the ship to the charterer for the voyage, and is said to be so strong that, if the end sought to be effected by the charter party can conveniently be accomplished without the transfer of the vessel to the charterers, courts of justice are not inclined to regard the contract as a demise of the ship, although there may be express words of grant in the formal part of the instrument. The master remains the agent of the owner under any contract falling short of a demise, and the owner is bound by all his acts and omissions within the scope of his authority as in the ordinary relation of carriage by sea. If the instrument amounts to a demise, the master is the charterer's agent, and not that of the owner. Bills of lading or other contracts of affreightment signed by the master bind the owner or the owner _pro hac vice_ on the theory of the master's agency. This subject is discussed in the case of Freeman, 18 How. 182, quoted extensively in Chapter III, § 10, _supra_. Charter parties frequently contain a clause whereby the charterer agrees to indemnify the shipowner against any liability arising from the signature of bills of lading by the master. Probably this clause would be implied in a charter party if not expressed therein. This gives the owner of the ship a right of action over against the charterer on account of any liability to which the shipowner or ship may have been subjected at the hands of the shipper. Thus if the charter party contained covenants for the protection of the shipowner under certain circumstances and the bill of lading issued by the master did not contain these restrictions and the shipper recovered under the bill of lading against the ship or her owner, the latter in turn could recover against the charterer (Field Line _v._ South Atlantic Co., 201 Fed. 301). =9. Bills of Lading.=--The forms differ greatly in contents and legal effect but have the common features of an acknowledgment of the receipt of the goods; a description by which they may be identified; an agreement to carry to destination and deliver; the rate of freight and an exception of certain perils. In addition to these features it has been usual to include more or less elaborate provisions tending to a diminution or limitation of the ship's liability, sometimes extended to great length in small or illegible type, and the attempt to take advantage of these is sometimes described as "fine print and coarse work." These stipulations, in so far as they attempt to exempt the shipowner from the consequences of his own or his servants' negligence are not enforced in courts of the United States on grounds of public policy. They probably, however, have some value as deterrents of claims and litigation but should be studied in connection with the Harter Act (7 Comp. St. §§ 8029-8035). (See Chapter VIII, p. 119.) The common carrier by sea is subject to the same rules of extraordinary liability as the common carrier by land but this liability is controlled by the admiralty law of limited liability (Liabilities and Limitations, Chapter VIII, p. 112) and the provisions of the Harter Act. Like the land carrier, he may also enlarge or diminish his liability by special contract; such a contract must be clear and plain, based upon a meeting of minds, due consideration or mutuality, and conformity with law; it will not, however, protect against negligence on the part of the carrier. An example is found in the Guildhall, 58 Fed. 796, where a cargo was damaged in a collision occasioned by improper navigation. The owners of the ship based their defense on a provision in the bill of lading, which attempted to exempt from liability for "any neglect or defaults of the master, mariners, or others in the service of the owners, collision, perils of the seas," etc. It was held: These stipulations are valid by the law of Rotterdam (the port of departure), and of England. But the obligation of the steamer, as a common carrier, was to deliver her cargo safely in this country, at the port of New York. As against the consignee and owner here, she can not commit torts on the high seas against his property with immunity, nor justify such torts, except by some valid contract, proved according to the law of the forum. By numerous decisions of the Supreme Court of the United States, stipulations like these, inserted by a common carrier in a bill of lading, are, first, void as against public policy; and secondly, they are not evidence of any contract to that effect on the part of the shipper and consignee; because unreasonable and not having the necessary element of voluntary assent. See also Compania de Navigacion La Flecha _v._ Brauer, 168 U. S. 104: Exceptions in a bill of lading or charter-party, inserted by the shipowner for his own benefit, are unquestionably to be construed most strongly against him. In this case the cargo consisted of cattle, and the bill of lading contained this: On deck at owner's risk; steamer not to be held accountable for accident to or mortality of the animals from whatever cause arising.... It is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by ... accidents of navigation, of whatsoever kind, even when occasioned by the negligence, default or error in judgment of the pilot, master, mariners or other servants of the shipowner. The vessel was improperly ballasted and rolled over on her beam ends. Some of the cattle were injured and in order to right the ship a number of them were thrown overboard, no discrimination being exercised between sound animals and those which had been injured. The court after laying down the general principles above quoted, further held: The bill of lading itself shows that all the cattle to be carried under this contract were to be on deck. The words "on deck at owner's risk" cannot have been intended by the parties to cover risks from all causes whatsoever, including negligent or willful acts of the master and crew. To give so broad an interpretation to words of exception, inserted by the carrier and for his benefit, would be contrary to settled rules of construction, and would render nugatory many of the subsequent stipulations of the bill of lading. The wrongful jettison of the sound cattle by the act of the carrier's servants cannot reasonably, or consistently with the line of English authorities already cited, or with our own decisions, be considered either as an "accident or mortality of the animals," or as a "loss or damage occasioned by causes beyond his control, by the perils of the sea, or other waters," or yet as a loss or damage "by collisions, stranding, or other accidents of navigation." There having been no collision, stranding, or other accident of navigation, there was nothing to which the only stipulation in the bill of lading against the consequence of negligence, default, or error in judgment of the master and crew could apply. The bill of lading may be both a receipt and a contract and where the shipper accepts it at the time of delivering his goods, he is presumed to have agreed to its stipulations so far as they are reasonable and just. Such a contract merges all prior and contemporaneous negotiations and precludes parole evidence to vary its terms, but the subsequent delivery of a bill of lading will not necessarily affect a prior agreement, written or verbal, for the carriage; in other words, when a contract has been already made, the carrier cannot change it by a bill of lading without the shipper's consent. If the holder of the bill of lading is also the charterer the rights and obligations of the parties will ordinarily be governed by the charter party. Where the bill of lading incorporates the charter party by reference to it, of course the holder of the bill of lading is bound by the terms of the charter party. Where the charter party provides that bills of lading are to be made subject to the provisions of the charter, the rights of the holder of the bill of lading are subject to the charter party if he had knowledge or notice of it. A suit in which a conflict arose between a bill of lading issued by a charterer and master, and a charter party of prior date, was the early case of Gracie _v._ Palmer, 8 Wheat. 605. The owners of the ship _America_ chartered her at Philadelphia for a long voyage, the whole charter hire to be paid on the return of the ship to Philadelphia, but before the discharge of cargo. The owners appointed the master. In Calcutta, the charterer, who was on board, with the master's consent, got an advance of money from Palmer & Company, a Calcutta firm, and gave Palmer & Company a bill of lading which stipulated for the delivery of the cargo free of freight to Palmer & Company's agent in Philadelphia, who were to sell the goods and collect the amount of the advance out of the proceeds, unless the charterer's drafts for the amount of the advance, drawn in Palmer & Company's favor on a Philadelphia house, should be honored, in which event Palmer & Company's agents should deliver the goods to the charterer. The master signed the bill of lading given to Palmer & Company in Calcutta, which contained the clause, "Freight for the said goods having been settled here." The drawee refused to accept the charterer's drafts, and Palmer & Company's Philadelphia agent accordingly demanded the goods on the arrival of the ship. It was held, sustaining the contention of Daniel Webster, who represented the owners, that the shipowner had a lien on the cargo for the charter hire, the Court saying: On what principles rests the general lien of goods for freight? The master is the agent of the shipowner, to receive and transport; the goods are improved in value, by the costs and cares of transportation. As the bailee of the shipper, the goods are in the custody and possession of the master and shipowner, and the law will not suffer that possession to be violated, until the laborer has received his hire. But this is literally the effect of that provision in the charter party which deprives the charterer of the right of landing the cargo until the stipulated hire be paid; or rather it would seem to go beyond it, and impose a liability beyond what the common law exacts. It may, therefore, be fairly construed into a stipulation, that the charterer should, under no circumstances, dispense with the legal lien of the shipowner. * * * * * That the shipowner would not confide in the charter to land his goods without buying off his right to detain, is expressly proved by the contract. That contract was accessible to the foreign shipper, and ought to have been looked into to determine the extent of the power vested in the charterer.... The charterer has contracted with the shipper to do an act, which he could not perform without violating his own contract to the shipowner, and must therefore be considered as having entered into a contract, subordinate in its nature to that previously existing between the owner and charterer. On-the other hand, it is held that the innocent _bona fide_ endorsee of a bill of lading, which makes no reference to the charter party, and contains nothing to put him on notice or inquiry as to the existence of the charter party, is liable for freight only according to the terms of the bill of lading. =10. Statements in Bills of Lading.=--The bill of lading commonly contains a statement of the number of packages or the weight of the goods or other representations with regard to the quantity shipped. There are several rules applicable to the effect of such statements. Where they appear in bills of lading covering shipments in interstate commerce or shipments from the United States to foreign ports, the effect of such statements is governed by the Federal Bill of Lading Act, approved August 29, 1916 (39 St. at L. 538). Under this act (§ 20) if the goods are laden by the _carrier_ he is bound to count the packages, or ascertain the kind and quantity of bulk cargo. He is forbidden to insert in the bill of lading or in any other document relating to the ship any expression such as "shipper's weight, load and count," or any language indicating that the goods were loaded by the shipper and the description of them made by him. Where the goods are loaded by the _shipper_ the act provides: Section 21. That when package freight or bulk freight is loaded by a shipper and the goods are described in a bill of lading merely by a statement of marks or labels upon them or upon packages containing them, or by a statement that the goods are said to be goods of a certain kind or quantity, or in a certain condition, or it is stated in the bill of lading that packages are said to contain goods of a certain kind or quantity or in a certain condition, or that the contents of packages are unknown, or words of like purport are contained in the bills of lading, such statements, if true, shall not make liable the carrier issuing the bill of lading, although the goods are not of the kind or quantity or in the condition which the marks or labels upon them indicate, or of the kind or quantity or in the condition they were said to be by the consignor. The carrier may also by inserting in the bill of lading the words "Shipper's weight, load and count," or other words of like purport indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the non-receipt or by the misdescription of the goods described in the bill of lading: _Provided, however_, Where the shipper of bulk freight installs and maintains adequate facilities for weighing such freight, and the same are available to the carrier, then the carrier, upon written request of such shipper and when given a reasonable opportunity so to do, shall ascertain the kind and quantity of bulk freight within a reasonable time after such written request, and the carrier shall not in such cases insert in the bill of lading the words "Shipper's weight," or other words of like purport, and if so inserted contrary to the provisions of this section, said words shall be treated as null and void and as if not inserted therein. This act of Congress has no application to bills of lading for goods shipped from foreign ports and the rules governing representations in such bills of lading are different. Bills of lading for shipment from foreign ports when issued by the master do not bind the shipowner of the vessel for the number of packages or quantity of goods which the bill represents as having been shipped. This is the rule which prevailed as to all bills of lading prior to the passage of the act. It is based on the theory that the implied agency of the master for the shipowner does not extend to making misrepresentations in the bill of lading, so as to make it, as against the shipowner, a receipt for goods not received. It was intended to protect the shipowner against frauds committed collusively between the master and shipper who have been known to enter into conspiracies whereby the master issued false bills of lading upon which the shipper subsequently raised money by assigning the bill. There is another class of representations commonly found in the bill of lading relating to the condition of the goods, as that they are in "good condition" or "damaged condition." Where the goods are loaded by the shipper the effect of such statements is governed by § 21 of the Bill of Lading Act, above quoted, as to shipments in interstate commerce or from United States ports. In other cases, e.g., where the carrier does the loading or where the act is not applicable, the rule is that representation made by the master in the bill of lading as to condition, bind the shipowner where the bill of lading has passed into the hands of a _bona fide_ holder for value, the theory being that representations as to order and condition are within the scope of the master's authority. =11. Negotiability of Bills of Lading.=--In mercantile law certain things have the quality of negotiability, that is, they are like money in that the title may pass from hand to hand by delivery without the necessity of inquiry into the antecedent ownership. Promissory notes, checks and drafts, payable to order or bearer, or so endorsed, are negotiable and the holder's title is not affected by any representations or transactions between the original parties or prior holders, without his knowledge. Many attempts have been made to give bills of lading the full quality of negotiability, but the courts have not favored the effort. Bills of lading are said to be quasi-negotiable. They may be transferred by endorsement and delivery and thereby pass the same title to the goods which they represent as if the goods themselves were handled. But prior to the passage of the Federal Bill of Lading Act, above mentioned, the transferee took only the title of his transferor, subject to all rights which may have been asserted against him. The bill of lading remained a mere substitute for the goods and the purchaser of a stolen bill, for example, acquired no more title than he would in the case of stolen goods. The latest legislation designed to confer upon bills of lading the quality of negotiable paper is that contained in § 22 of the Bill of Lading Act, which is as follows: That if a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to (a) the owner of goods covered by a straight bill subject to existing rights of stoppage in transition or (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, for damages caused by the non-receipt by the carrier of all or part of the goods or their failure to correspond with the description thereof in the bill at the time of the issue. This appears to protect a person to whom a bill of lading has been negotiated for value and who took it in good faith, relying upon representations contained in it. A word of caution, however, is necessary. The provision is recent and has not been construed by the highest courts in a case involving a shipment by sea. The disposition of the courts has been to construe such legislation strictly. The act was intended to reverse the rule laid down in a line of decisions consistently adhered to by the Supreme Court down to the time of its passage. There can be no little doubt that any one seeking to maintain an action under § 22 of the act would have to bring himself strictly within the description of persons embraced in items (a) or (b) contained in the section. =12. Duration of Carrier's Liability.=--The carrier's liability begins when he receives the goods for immediate transportation. He is not liable as a carrier if he receives the goods, but is ordered not to ship them pending further instructions from the consignor. In such case he remains a mere bailee, or perhaps a warehouseman, until the voyage actually begins. The carrier's liability ends when he gives notice of the arrival of the goods and has afforded the consignee a reasonable opportunity to remove them. He may go farther and stipulate in the bill of lading to terminate his responsibility as carrier immediately upon the putting of the goods ashore. =13. Exceptions in Bills of Lading.=--In addition to perils of the sea, deviation and restraint of princes, which have already been mentioned, bills of lading frequently contain language designed to protect the carrier from liability for such things as damage due to breakage, leakage, heat, etc. Clauses of this kind will avail the carrier as a defense against suits for damages due to these causes provided the carrier is free from negligence. Inasmuch as these exceptions are in the nature of exemptions from a liability which is imposed by the policy of the law, the tendency of the courts is to interpret them with strictness against the carrier. A provision in a bill of lading exempting the carrier from loss by theft will not relieve him from liability on account of a theft committed by a person in his employ, such as an officer of the vessel or a member of the crew. =14. Valuation.=--There is some divergence in the decisions of the courts involving the valuation of the goods which is frequently stated in the bill of lading. If the language of the bill indicates that the amount stated is a limit or that the value is limited to the invoice price, the shipper may recover his actual loss up to but not exceeding that amount, subject to the invariable rule that a man may not contract for relief from the consequences of his own negligence. The right of recovery on the valuation clause depends upon whether the owner of the goods has been subjected to loss. Thus if after the accident or injury the goods continue to be worth the amount of the valuation there is no loss and consequently there can be no recovery. The valuation clause cannot be used for the purpose of exempting the carrier from liability for all goods above a certain value. As is succinctly stated in the syllabus of Calderon _v._ Atlas Steamship Co., 170 U. S. 272, 42 L. ed. 1033: A stipulation in a bill of lading, that the carrier shall not be liable for goods of any description which are above the value of $100 per package unless special agreement is made therefor, does not mean that the liability is limited to $100 per package for such goods, but that the carrier shall not be liable for them to any amount, and is therefore void, under the Harter Act, as an attempt of the carrier to exonerate itself from all responsibility for such goods. =15. Notice of Claim.=--It is very important for shippers to observe the provisions usually contained in bills of lading to the effect that the carrier will not be liable unless notice of loss be given within a certain limited time as such clauses are legal and enforceable, and if not complied with, the shipper will lose his right of action. =16. Nature and Effect of Charter Party.=--This may be formal or informal, written or verbal, as the parties choose, but careful business men will prefer to have it executed with the same care and detail as is usually given to contracts of so important a nature. The operations under a charter always involve large responsibilities and liabilities upon some one, primarily upon the ship but ultimately upon the parties to the agreement. The adjustment of these by appropriate language necessitates a carefully drawn document and while many printed forms are in general use in various ports they should only be employed when both parties thoroughly understand the import of their provisions. The effect of the agreement may be to create a contract of carriage on the part of the owner or to completely divest him of any control over his ship. Where he merely rents or lets the carrying capacity, in whole or part, but retains possession, command and navigation through his own master and crew, he is the carrier and the charter is a contract of affreightment. Where he transfers the temporary ownership by relinquishing these things to the charterer, so that the latter hires the officers and crew and operates the ship, he is not in the position of a carrier and is freed from obligations on her account, though the ship herself remains responsible. Charters are of various kinds. A charter party which turns over the full control and operation of the ship to the charterer is called a demise of the ship. This may be for a fixed term, or for a particular voyage. In commercial practice, however, charters for a fixed term, that is to say time charters, seldom amount to a demise of the ship, but are usually mere contracts of affreightment. A charter party for a particular voyage is called a voyage charter. In usage such a charter may amount to a demise or may not, depending on whether or not the full control and operation of the ship is surrendered to the charterer. A charter which amounts to a demise is sometimes termed a bare boat charter. Under a charter which amounts to a demise, the owner will require payment of the charter money or freight in such installments as are agreed, the maintenance of his ship in good, seaworthy condition, protection against maritime liens and the prompt payment of all her expenses, and her return to him in like condition as when taken at the termination of the contract. The charterer will require undisturbed possession of the ship so long as he is not in default and agrees, that in event of default, the owner may cancel and resume possession. Provision should also be made for insurance and stipulated value in event of damage or total loss. =17. Subcharters.=--In the absence of any prohibition in the original charter, a charterer may execute a subcharter or may assign the original charter. =18. Provisions in Charter Parties.=--The legal construction of a charter party is governed by the rules of the law of contract. Material representations of fact contained in the instrument as inducements to the contract must be true or the contract will not be binding on the opposite party. Such representations are statements relating to the size, capacity, speed, condition and location of the ship. (a) _Safe Port._--Among other provisions of the contract, especially in time charters, is usually one to the effect that the vessel is to be employed only between safe ports. A safe port is one in which the physical conditions do not ordinarily expose a vessel to danger. Thus a port entirely exposed to the weather has been held unsafe, as have ports blocked by dangerous bars. A port in which the vessel would be liable to forfeiture in time of war because of her nationality has been held unsafe. (b) _Insurance._--Where a time charter provides that the owner shall pay for the insurance the reference is to insurance for the benefit of the owner and not that of the charterer. (c) _Redelivery._--While a time charter is, as the name implies, a contract for the definite period of time expressed in the charter, it is obvious that the exigencies of navigation frequently render it impossible to redeliver the vessel on the precise date when the period expires. It is customary, therefore, to provide that the charter hire shall continue at the same rate until the time of redelivery unless the vessel be lost. It is the duty of the charterer to redeliver the vessel as nearly as possible to the expiration date of the charter, but if the vessel is delayed through no fault of his, he cannot be held in damages for breach of the charter, even though he may not be able to make redelivery for months beyond the expiration date. So long as the delay be practically unavoidable, he is liable merely for the stipulated charter hire until redelivery, and not in damages for breach of the charter (Anderson _v._ Munson, 104 Fed. 913). The word "about" as a qualification of the charter period is sometimes inserted in time charters, as a further protection to the charterer, but it does not diminish his obligation to surrender the vessel as nearly as possible to the expiration date. (d) _Cancellation and Withdrawal._--Charters usually contain a clause which provides that, if the vessel fails to arrive at the loading port by a certain date, in condition to be laden--i.e., with cargo space available--the charterers may cancel the obligation. The clause does not entitle the vessel to loaf toward the loading port so as just to arrive by the cancellation date. If she does not proceed with reasonable promptness, the charterer will be entitled to damages, even though she arrive by the cancellation date. Correlative to the charterer's right of cancellation, it is usual for charter parties to contain a provision to the effect that charter hire is to be paid in advance and that in default of such payment the owner shall be entitled to withdraw the vessel from the charterer. (e) _The Breakdown Clause._--Time charters frequently provide that in the event of loss of time arising from the breakdown of machinery, lack of men or supplies for more than twenty-four hours, the payment of charter hire shall be suspended for the period from which she is inoperative, but if the vessel is driven into port by circumstances of weather or accident to cargo, the loss of time due to these causes shall fall upon the charterer. Such provisions are enforcible according to their language and intent. If the breakdown endures beyond the period of twenty-four hours the charter hire ceases not only for the excess, but for the twenty-four hours also. =19. Lien for Freight and Charter Hire.=--It is fundamental that the goods carried are liable for the carrying charges, but the questions arise: In whose favor does the liability exist, and during what period does it exist? The lien for freight exists in favor of the person with whom the shipper contracts to carry the goods. Where the shipowner is operating the vessel on his own account as a carrier, the lien for freight exists in his favor. Where the vessel is chartered the contract of carriage is between the shipper and the charterer, and the lien for freight exists in favor of the charterer. The owner of a chartered ship has no lien for freight (unless conferred by the cesser clause, mentioned below), but he may have a lien on the goods to the extent of the unpaid freight for the purpose of securing his charter hire. This lien does not exist in favor of an owner who has demised or let the ship to the charterer, unless there is an express stipulation to that effect. The so-called "cesser clause" is to the effect that "owner to have lien on cargo for freight, dead-freight, and demurrage, charterer's liability to cease when cargo shipped." The purpose of this clause is to bring the charterer's liability to an end at the loading port. In return for his exemption from liability to suit at the port of destination, he turns over to the shipowner his lien on the cargo for freight, dead-freight and demurrage. Possession of the goods is, generally speaking, essential to the lien for freight or charter hire. It does not attach until the goods have been delivered for transportation. If, by contract, expressed in the bill of lading or otherwise, the freight is not payable until after the goods have been delivered, there is no lien, and the same is true if the freight is payable at a time and place other than those specified for the delivery of cargo. Ordinarily the lien is discharged when possession of the goods is parted with; or by express waiver; or by implied waiver, such as a direction to pay the freight to another person. It is usual to insert in time charters a clause providing for a lien for charter hire. Such provisions are valid, but they are not effective against the cargo unless the terms of the charter have been brought home to the shipper by a reference to the charter in the bill of lading, which is commonly done. To incorporate the charter in the bill of lading the reference to the charter in the bill must be explicit. =20. Liability for Loss or Damage.=--In the case of goods, there is a primary liability on the ship. The liability of a vessel _in rem_ for want of due diligence in the care and custody of the goods received on board for transportation is the same whether the owners of the ship remain in possession as carriers or whether the terms of the charter party are such as to constitute a demise of the vessel for the voyage, so as to render the charterers the owners _pro hac vice_ and alone personally responsible for the transportation. The T. A. Goddard, 12 Fed. 174. As between the shipowner and the charterer, this will be borne as the charter party provides. In the case of loss or damage to the ship, the contract again controls if its provisions are explicit. If not, the ordinary rules of bailment of personal property control. If the charter amounts to a demise of the ship, the charterer is liable, for he engages to return the ship without injury by reason of his own negligence; if not a demise, the shipowner bears the loss. For losses caused by perils of the seas or by ordinary wear and tear, without negligence on his part, the charterer is not liable in the absence of an express stipulation. In the case of the Barnstable, 181 U. S. 464, the vessel was chartered, the charterer employing the officers and crew to navigate her, as well as providing the ship's stores, supplies and fuel, and undertaking to pay all pilotage, port charges and other expenses. The owner was to keep the vessel insured and in repair. She came into collision with the schooner _Fortuna_. The owners of the _Fortuna_ libeled the _Barnstable_ and the owners of the latter vessel called upon the charterers to defend the suit. It was conceded that the collision and the consequent damage were due to the negligent operation of the _Barnstable_ by the officers and crew employed by the charterers to operate her. The court held that the owners of the damaged schooner were entitled to look to the offending vessel for their damages. As between the owner and the charterer it was held that the charter amounted to a demise and the charterer was the temporary owner. He was therefore liable to the real owner, since he was bound to return the vessel. In the report of the argument of this case many authorities are cited showing the circumstances under which a charter party becomes a demise of the vessel. In a contract of affreightment or charter not amounting to a demise--and this embraces time charters--the duty of navigation rests upon the shipowner. He is responsible for any damage due to negligence in navigation, even though the negligent individual had been employed by the charterer. In charters of this class the shipowner is also responsible for loading and discharging cargo. Stevedores are ordinarily regarded as being in the employ of the ship. =21. Demurrage and Laydays.=--Time is usually of the essence of maritime and commercial transactions. Both parties must be punctual in the performance of their obligations. The shipowner must have the vessel at the appointed place and time for delivery to the charterer or to receive the cargo, as the agreement requires. The charterer must be on hand to receive her or to deliver the cargo for loading. The ship must pursue the voyage without deviation or delay. The consignee must be ready to receive his goods on their arrival. Failure to observe these requirements creates a liability for the damages ensuing or may dissolve the charter. If the contract is express in regard to these stipulations, no excuses will be useful unless they can be found in the agreement itself. It is usual to provide for these obligations under the name of demurrage. Of course, where the charter is for a definite period of time, they are unimportant, but otherwise, if it is for one or more voyages. The charterer has a number of days at his disposal for loading and discharging the cargo. These are termed laydays. If not specially provided, or fixed by the usage of the port or trade, a reasonable number will be implied. For the excess, the ship is entitled to demurrage to cover her loss of time and expenses, either at the rate named in the charter or of such amount as may be proved. Until the laydays have expired there is no breach of the contract to load, but where the charterer refuses to accept the vessel or provide a cargo, the owner need not keep her in readiness for delivery during all the laydays. What constitutes readiness, or under what circumstances a ship is an "arrived ship," depends upon the terms of the bargain. Thus if the charterer requires her to reach her berth a notice given when she is in the stream will be insufficient. If she is to report for loading cargo she must have her loading apparatus ready and her cargo space available. The notice must actually reach the charterer unless he prevents it by absenting himself or his representative from the place where it is to be given. Notice should not be given on Sunday or a holiday, unless the charter expressly permits it. In accordance with the general principle of the law of contract, laydays do not run if delay in loading or discharge is caused by the master or owner. It is the duty of the charterer to have his cargo ready and he is liable for demurrage on account of the delay in furnishing cargo. The charter party usually excepts Sundays and holidays from the laydays allowed for loading, but, after the expiration of the loading period (i.e., the laydays and the Sundays and holidays occurring among them), demurrage begins to be payable to the ship, and she is entitled to demurrage for Sundays and holidays as well as for secular days. This is because the work of loading in port does not usually proceed on Sunday, but a ship at sea continues on her voyage every day, so that every day's delay in departure causes an equal delay in arrival. Charters often provide for "despatch money," which is a premium or allowance to the charterer for speed in loading. This is computed on each running day saved; that is, it is to be credited to the charterer for every day, including Sundays and holidays, occurring after the day on which the master is placed in a position to clear the vessel, up to and including the last layday, i.e., the end of the loading period. Despatch is not allowed unless bargained for in the charter. =22. Breach of Charter.=--If the shipowner refuses to perform the charter, the charterer has a personal action for damages against him but no maritime lien against the ship. There is no such lien for breach of a purely executory contract, that is to say a contract no part of which has been performed. So, if the ship is ready but the charterer refuses to perform, the remedy is personal only and not against the goods. Each must endeavor to mitigate his loss, the ship by seeking other employment, the charterer by looking for another ship. But after performance of the contract has once commenced, there are reciprocal liens on ship and cargo for its performance. The charterers have a lien on the vessel for all damages caused by a breach of the charter, the carrying out of which has been begun. For example, if the voyage is delayed after its commencement through the negligence of the owner, or if the master, while agent of the owner, violates the terms of the charter party, a lien arises in favor of the charterer. In regard to the various obligations of the agreement, breaches by either party will either dissolve their relations or give rise to actions for damages. If nonperformance goes to the whole root and consideration of the contract, the other party may treat it as abrogated and be relieved from further obligation on his part in addition to his own claim for damages; if the nonperformance is not so vital, but may be amply compensated by damages, he will not be so relieved but must resort to his action. The arbitration clause contained in a time charter is not enforcible in the United States. =23. Dissolution of Charter.=--Like all other contracts, the charter party becomes dissolved by performance or by the acts of the parties amounting to a cancellation by agreement or waiver of performance. It may, however, be dissolved against the will of the parties and by causes extrinsic to them. Thus, although legal when made, if it becomes illegal before performance, it is as wholly void as if it were illegal at the outset. A state of war, for example, making all commercial intercourse with the enemy illegal, would annul all obligations under a prior charter for a voyage to an enemy port. So would legislation forbidding the importation of the cargo in question. A voyage charter may be dissolved by an accident to the vessel which prevents her making the voyage at the time contemplated. For example, in Jackson v. Union Marine Insurance Co., L. R. 10. C. P. 125, the ship was to proceed with all possible despatch (dangers and accidents of navigation excepted) from Liverpool to Newport, and there to load and carry to San Francisco a cargo of iron rails. She left Liverpool January 2, and on the following day ran aground, sustaining considerable damage. It would necessarily have been many months before she could be got off and put in repair to enable her to continue the voyage. The court held that in the commercial sense the voyage contemplated by the charter party had been brought to an end, and, under those circumstances, the contract was held to have determined. The voyage, if resumed, would have been a different voyage, "as different," in Baron Bramwell's words, "as though it had been described and intended to be a spring voyage, while the other, after the repair, would be an autumn voyage." The season within which the adventure was to be carried out was of importance to both parties, and it was thus easy to imply a condition that, if the voyage became impossible of completion within that season, the contract would be at an end. The exception as to dangers of the sea and accidents of navigation showed that the parties contemplated providing for some delay from these causes, but it was held that they were evidently not contemplating a delay so great that the spring voyage would become altogether impossible. The particular adventure being a voyage to be carried out within reasonable limits of time furnished a definite standard by which it would be determined whether the delay which actually occurred was or was not within the exception clause. There was, therefore, no inconsistency between the implied condition and the express provisions of the contract. Termination of a charter by frustration of adventure is not applicable to time charters. Thus the taking of the ship for the use of the government does not dissolve a time charter. This was held by the House of Lords, upon a very full consideration in the recent case of Tamplin Steamship Co. _v._ Anglo-Mexican Products Co., Ltd., 2 A. C. 397. There a vessel was chartered for five years for a fixed sum per month for the carriage of oil as the charterers or their agents should direct. The charter party contained an exception of arrests and restraint of princes, and the charterers had the liberty of subletting the steamer on admiralty or other service. After the outbreak of the war, when the charter party had nearly three years to run, the steamer was requisitioned for an indefinite period by the admiralty, which made extensive alterations and used her as a transport. The owners contended that the charter party had been determined by the requisition. The charterers, who were willing to continue to pay the charter hire (no doubt in order to entitle themselves as temporary owners to the compensation paid by the government) contended that the charter party had not been annulled and this contention was sustained by the House, which held that the interruption was not of such a character that the court ought to imply a condition that the parties should be excused from further performance of the contract and that the requisition did not determine or even suspend the charter. Earl Loreburn said: The violent interruption of a contract may always damage one or both the contracting parties. Any interruption does so. Loss may arise to some one whether it be decided that these people are or that they are not still bound by the charter party. But the test for answering the questions is not the loss that either may sustain. It is this: Ought we to imply a condition in the contract that an interruption such as this was to excuse the parties from further performance of it? I think not. I think they took their chances of lesser interruptions and the condition I should imply goes no further than that they should be excused if substantially the whole contract became impossible of performance or in other words impracticable by some cause for which neither was responsible. Accordingly I am of opinion that this charter party did not come to an end when the steamer was requisitioned and that the requisition did not suspend it or affect the rights of the owners or charterers under it and that the appeal fails.[16] Where the charter provides for the return of the vessel at the expiration of the term in as good condition as when taken, fair wear and tear from reasonable and proper use only excepted, and requires the hirer to make all repairs and assume liability for all loss and damage, an absolute obligation to return her is created and her total loss without any fault on his part will not exempt him from liability; he must return the ship or pay her value, and, if the charter party contains an agreement as to what that value is, that amount will be decreed by the court. In Sun Printing & C. Association _v._ Moore, 183 U. S. 642, the New York _Sun_ newspaper chartered a yacht from Moore for newsgathering purposes in Cuban waters during the Spanish war. The charter party provided that the hirer was to keep "said yacht in repair and to pay all its running expenses and to surrender said yacht with its gear, furniture and tackle at the expiration of this contract to the owner or his agent ... in as good condition as at the start, fair wear and tear from reasonable and proper use only excepted." It was further provided that "for the purpose of this charter the value of the yacht shall be considered and taken at the sum of $75,000." The charter party was accompanied by a paper in the nature of a surety bond given by the _Sun_ to secure the owner against any loss or damage to the vessel in an amount _not exceeding_ $75,000. The yacht was wrecked and totally lost. Moore sued for $75,000 as representing the agreed value of the yacht. The _Sun_ contended that the figure represented a penalty, enforceable only to the extent of actual damage. The court sustained a recovery of the full amount without deducting the charter hire. Justice White said: It is elementary that, generally speaking, the hirer in a simple contract of bailment is not responsible for the failure to return the thing hired, when it has been lost or destroyed without his fault. Such is the universal principle.... But it is equally true that where by a contract of bailment the hirer has, either expressly or by fair implication, assumed the absolute obligation in return, even although the thing hired has been lost or destroyed without his fault, the contract embracing such liability is controlling and must be enforced according to its terms.... As the stipulation for value referred to was binding upon the parties, the trial court rightly refused to consider evidence tending to show that the admitted value was excessive and the circuit court of appeals properly gave effect to the expressed intention of the parties. REFERENCES FOR READING _Charter-Parties_, XVI American Law Review, 6330. _Charter-Parties and Bills of Lading_, T. E. Scrutton. London, 1899; Clowes and Cons, Ltd. _Shipping and Admiralty_, Parsons, 274-337. _Shipping and Admiralty_, Desty, §§ 217-286; 196-285. Crossman _v._ Burrill, 179 U. S. 100. Moore _v._ Sun Ass'n, 183 U. S. 642. Boskenna Bay, 36 Fed. 697. Majestic, 56 Fed. 244. Centurion, 57 Fed. 412. _Shipping and Admiralty_, Parsons, Vol. I, Chapter VIII. _Admiralty_, Hughes, Chapters VII, VIII. Francis, 21 Fed. 715. Sprott, 70 Fed. 327. Rosenthal, 57 Fed. 254. Ronalds, 109 Fed. 905. Burrill, 65 Fed. 104. Dene, 103 Fed. 983. Ely, 110 Fed. 563. Dixie, 46 Fed. 403. Mencke _v._ Sugar, 187 U. S. 248. _Charter-Parties and Ocean Bills of Lading_, Poor. [16] It may be inferred, however, that, if it had appeared that the requisition necessarily rendered the performance of the entire contract impossible, the charter would have been held to be dissolved. In this case, it was the owner, who saw a chance to make more money, who wanted the charter annulled; not the charterer whose adventure was being frustrated in a manner advantageous to him. It is a little difficult to suppose that the court would have required the charterers to go on paying charter hire, had they been unwilling to do so, for a vessel of which the government had deprived them of the use. Still, that conclusion is deducible from the language of the several lords who wrote opinions in the case. CHAPTER VIII LIABILITIES AND LIMITATIONS =1. Liabilities of Ship.=--As elsewhere observed, the ship resembles a person in maritime law and has a corresponding liability. In general, she is responsible for every benefit received and every wrong done as well as for every breach of governmental regulations. Particular instances may furnish exceptions to this general rule, but they will be only occasional exceptions. The ship should be considered as a juristic person and her liabilities like those of an ordinary corporation, quite apart from those of the natural persons in charge of her operations or interested in her ownership. The liability of a vessel arising out of contract is discussed elsewhere. The principle governing her liability for torts is laid down in the brig Malek Adhel, 2 How. (U. S.) 210: The ship is also by the general maritime law held responsible for the torts and misconduct of the master and crew thereof, whether arising from negligence or a willful disregard of duty; as, for example, in case of collision and other wrongs done upon the high seas or elsewhere within the admiralty and maritime jurisdiction, upon the general policy of that law, which looks to the instrument itself, used as the means of the mischief, as the best and surest pledge for the compensation and indemnity to the injured party. The liability ordinarily extends to the entire ship and all the appurtenances.[17] It may include the freight money and collision damage; it does not include the insurance; and it may be diminished by statutes like the Harter Act or by special agreements in the contract of carriage or similar stipulations. =2. Liabilities of Owner.=--While it has been said that the liability of the ship and of the owner were convertible terms, the statement is hardly accurate in many cases. The owner may have so chartered the ship as to release him from personal responsibility; he may be wrongfully deprived of her possession; his liability may be limited by law or special agreement to her value. In other words, the ship is frequently liable and the owner is not; and the owner can usually confine his liability to the value of the ship and otherwise go free from her obligations. =3. Liabilities of Charterer.=--Where a vessel is so hired that the charterer has the exclusive possession, control and management, appointing the master and hiring the crew, there is said to be a demise of the ship and a temporary ownership in the charterer. He then becomes responsible for her obligations as if he were the real owner and has similar rights of limitation. The law provides that where a charterer mans, victuals and navigates the ship at his own expense, he shall be considered as owner within the provisions of the statutes limiting liability, and that the ship shall be liable, when so chartered, as if navigated by the owner (Rev. St. § 4286). =4. Liabilities of Mortgagee.=--These depend upon his possession of the ship. Where he takes possession and operates the ship for his own benefit, he assumes all the responsibilities of ownership but without the right to limit his liability to the value of his interest in the ship. Thus he may become personally liable for wages, supplies and repairs as well as for damages done by negligence. He may, by special arrangements, confine contract liabilities to the ship and, being lawfully in possession, he may create maritime liens upon her. A mortgagee out of possession is not considered as the owner even when he holds the record title under a bill of sale absolute on its face. He may still show that his title was by way of security only and so exempt himself from personal liability for repairs done or supplies furnished for the contracts or negligence of the mortgagor or other person having real ownership of the boat. =5. Liabilities of Underwriters.=--The insurers are ordinarily strangers to the ship as far as concerns any authority to instruct the master or incur obligations on her account. Only in case of an abandonment of the vessel to them, when the loss is total or constructively total, and when they have accepted such an abandonment, does such authority arise. An abandonment when properly made, or accepted, vests the property in the underwriter and the master then becomes his agent. The underwriter is then the real owner and has all an owner's liabilities and limitations. There is, however, a very large intermediate class of disasters where the underwriters decline an abandonment and yet take possession of the ship and cargo for the purpose of rescue and repair. Large expenses are thus created for which the damaged ship and cargo may be adequate security. The underwriters are personally liable, in the absence of special contract, for the contracts of their agents, although the nature of the business is such that it is often a practical difficulty to ascertain who were the insurers actually making the engagements and what was the real authority of those assuming to represent them. These questions are usually not raised during the exigencies of salvage operations but may become important when the work is unsuccessful and the expenses are unpaid. =6. Theories of Limitation.=--The general maritime law has always been that an owner was not personally liable for the obligations of his ship as distinguished from his own agreements or delinquencies. It regards the ship as a distinct individuality similar to a corporation. The common law, on the contrary, considers the ship like any other kind of personal property and holds the owner correspondingly liable because his agents were in charge and he is liable for whatsoever they do within the scope of their agency. The maritime law retains an earlier notion of the common law, that it is against all reason to put blame or fault upon a man for the negligence of others and declines to hold him personally for what he cannot personally control. It also recognizes the fact that men of means will not invest in ships unless they can be protected against the unlimited liability of the common law. It holds that such a liability is inherently unjust when applied to the shipowner and it also accepts the situation in which the capitalist declines to invest in shipping unless that injustice is averted. Hence came the rule that the owner is not liable on account of the ship beyond the value of his interest therein and her freight pending and the corollary that he might absolve himself from all liability by abandoning the ship to her creditors. The theory is (at least as applied to torts) that: If you surrender the offending vessel you are free, just as it was said by a judge in the time of Edward III, "If my dog kills your sheep and I freshly after the fact tender you the dog you are without recourse to me."[18] This rule is in abrupt conflict with the theories of the common law and, while it has been expressed in statutory form in most maritime countries, the courts have been so far influenced by common law doctrines in its application that it does not prevail in its original integrity either in this country or in England. Congress has endeavored to restore it in the United States but the courts, so far, have declined to follow the plain language of the statute. =7. Contract Limitations.=--To a considerable extent there may be an effective limitation of liability by special contract between the parties. The courts hold, generally, that limitations of liability in a contract must be reasonable if they are to be valid and they regard clauses which exempt the shipowner from liability for his own or his servants' negligence as unreasonable and also as contrary to public policy. At the same time, when the ship is not professing to be a common carrier and the contract is plain and on adequate compensation, such clauses may be, and are, enforced. Their efficiency will depend largely upon the contract itself and there is no hard and fast rule which prevents the private carrier from obtaining such limitations as he requires if the other party will agree thereto. An illustration is found in the case of the Royal Sceptre, 187 Fed. 224, where the charter provided: The ship is to be in no way liable for any consequences of ... perils of the sea, ... collisions, stranding, or other accidents or errors of navigation even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowners. Judge Hough said: The quoted charter provision delimits the obligations of the ship, in so far as it goes, when reasonably interpreted. If therefore the proximate cause of this loss be a peril of the sea (or river), a stranding, an error of the pilot or negligence of the master, it may be assumed that libellant cannot recover; for, without any written limitation of liability, all that the bailor-libellant could require or expect from the bailee-claimant was the use of ordinary care and skill and that expectation has been (in part) bargained away for a consideration presumably expressed in the rate of charter hire. =8. The Federal Statutes.=--The original law was enacted in 1851 (Rev. St. §§ 4284-4286; Comp. St. 1916, 8020-8027); that provided an absolute protection against loss by fire unless caused by the design or neglect of the owner, and in case of practically all losses which might occur without the "privity or knowledge" of the owner, his liability was limited to the value of his interest in the ship and freight pending; provision was made for a general average of creditors and transfer to a trustee; in 1872 the Supreme Court promulgated rules of practice under which its benefits might be more efficiently applied by the admiralty courts. It was held that these statutes were enacted to restore the old doctrine of the maritime law, to encourage shipbuilding and the employment of ships in commerce, and for the public benefit. Hence they must be liberally construed in favor of shipowners. In a series of great decisions, commencing about 1870, the Supreme Court held the law constitutional; that foreign shipowners were entitled to its benefits; that the valuation of the owner's interest might be made as of the termination of the voyage or immediately after the disaster so that if the loss is total the liability is practically nil; that insurance was no part of the owner's interest in the ship or freight and need not be surrendered; and that the protection of the act extended to underwriters to whom the ship had been abandoned. The original law had been passed with much difficulty and its language, as the result of compromise and concession, was subjected to much criticism as uncertain and ambiguous. The shipping interests of the country continued to decline and among the reasons assigned were the responsibility and liabilities left open or undefined by the law. About 1880, in connection with a vigorous attempt to revive the merchant marine, the entire subject received full consideration by Congress. The Act of June 26, 1884, was subsequently passed, and, expressly repealing all laws in conflict therewith, declared in a few words that "the individual liability of a shipowner shall be limited to the proportion of any and all debts and liabilities that his individual share of the vessel bears to the whole, and the aggregate liabilities of all the owners of a vessel on account of the same shall not extend the value of such vessel and freight pending." An amendment seeking to insert the condition that such debts must have been incurred without the owner's privity or knowledge was deliberately rejected. The courts, however, have declined to enforce the law according to its terms and held that Congress really intended to insert the condition as to privity or knowledge in spite of the omission of the words and the rejection of the amendment which sought to insert them. The result is that the owner is still liable without limit for all obligations which arise out of matters of contract, according to the rules of the common law and in many instances of negligence on the part of his employees the same result seems to follow. His liability can not be limited where "privity or knowledge" is imputable to him and no accurate definition of these terms is yet available. Under the present law, the voyage is the unit in respect to which limitation may be granted. Probably the shipowner may claim the benefit of the law at any time before he pays a final judgment in favor of the damage creditors, but he must account for the value of the ship as it was at the termination of the voyage on which the liability was created. The courts will not permit him to continuously operate the ship at the expense of her creditors and then finally abandon her to them loaded with the liens of many voyages. The rule is only a practical one and in special cases may work injustice to shipowners, as where ships make a continuous number of short trips between contiguous points. Part-owners are only liable according to the proportion of their shares, and the personal fault or privity of one does not necessarily implicate the others. It is not necessary that they should join in the same proceeding. The exemption is several and may be claimed by each without reference to the others. =9. "Privity or Knowledge."=--Limitation of liability can not be had against any loss or obligation unless incurred without the privity or knowledge of the shipowner. These words, by judicial construction, still remain as a condition or qualification of the law and it is unfortunate that no plain definition of their meaning has been yet supplied. The words have been discussed in many cases and there are many decisions in particular instances granting or denying the benefit of the law, but the expression is still undefined and perhaps is incapable of accurate legal definition. Some judges have held that "privity or knowledge" means the shipowner's own willful or negligent acts as distinguished from those of his agents or employees. This gives the broad and liberal construction of the law which the Supreme Court directed in its earlier decisions on the subject. On the other hand, judges of equal learning have been inclined to treat the matter by the standards of the common law and held that the acts or faults of agents or servants are those of the principal and that he must be as personally liable as if he had done them himself. These would limit the protection of the law to the acts of the master of the ship when beyond control of the owner and give it a close construction against the shipowner. This has been the tendency of the later decisions of the Courts of Appeals and the Supreme Court has so far acquiesced in them. There has also been a development of a doctrine to the effect that there can be no limitation against the enforcement of the shipowner's personal contracts, and engagements made by various employees and managing owners have been held to be within this class. This rule depends on the theory of privity or knowledge, as, of course, there can be no such thing as a contract relation without privity or knowledge of its subject-matter. Thus in the recent case of Luckenbach _v._ McCahan Sugar Ref. Co., 248 U. S. 139, decided December 9, 1918: But the liability of the owners sought to be enforced here is one resting upon their personal contract; and to such liabilities the limitation acts do not apply. Similarly in another recent case, Pendleton _v._ Benner Line, 246 U. S. 353: The contract was between human beings, and the petitioner, by his own act, knowingly made himself a party to an express undertaking for the seaworthiness of the ship. That the statute does not limit liability for the personal acts of the owners, done with knowledge, is established by Richardson _v._ Harmon, 222 U. S. 96. It was said in that case, p. 106, that § 18 leaves the owner "liable for his own fault, neglect, and contracts." * * * * * It is said that the owners did their best to make the vessel seaworthy, and that if it was not so the failure was wholly without the privity or knowledge of the petitioner. But that is not the material question in the case of a warranty. Unless the petitioner can be discharged from his contract altogether he must answer for the breach, whether he was to blame for it or not. In the case of corporate shipowners it is said that the privity or knowledge must be that of the managing officers, but there is no definition of who the managing officers are and the term is not capable of accurate definition. The law of limitation of liability of shipowners in the United States is not now plain or simple nor is it in harmony with the general maritime law or that of other commercial countries. Where the owner can prove that the loss occurred without his privity or knowledge he will obtain protection, but just what facts or ignorance of facts he must prove to reach this result can not be stated at the present time. =10. Harter Act.=--This law was enacted by Congress in 1893, and corresponds to a similar English statute of about the same date. It may be found in 7 Comp. St., 1916, §§ 8029-8035. The text of the act follows: Chapter 105. An act relating to navigation of vessels, bills of lading, and to certain obligations, duties, and rights in connection with the carriage of property. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that it shall not be lawful for the manager, agent, master or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words and clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect. Sec. 2. That it shall not be lawful for any vessel transporting merchandise or property from or between ports of the United States of America and foreign ports, her owner, master, agent, or manager, to insert in any bill of lading or shipping document any covenant or agreement whereby the obligation of the owner or owners of said vessel to exercise due diligence, properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants, to carefully handle and stow her cargo and to care for and properly deliver the same, shall in any wise be lessened, weakened or avoided. Sec. 3. That if the owner of a vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped and supplied, neither the vessel, her owners or managers, agents or charterers, shall become or be held responsible for damages or loss resulting from faults or errors in navigation or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality or vice of the thing carried, or from the insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service. Sec. 4. That it shall be the duty of the owner or owners, masters, or agent of any vessel transporting merchandise or property from or between ports of the United States and foreign ports, to issue to shippers of any lawful merchandise a bill of lading or shipping document, stating, among other things, the marks necessary for identification, number of packages or quantity, stating whether it be carrier's or shipper's weight, an apparent order or condition of such merchandise or property delivered to and received by the owner, master, or agent of the vessel for transportation, and such document shall be _prima facie_ evidence of the receipt of the merchandise therein described. Sec. 5. That for a violation of any of the provisions of this act the agent, owner, or master of the vessel guilty of such violation, and who refuses to issue on demand the bill of lading herein provided for, shall be liable to a fine not exceeding two thousand dollars. The amount of the fine and costs of such violation shall be a lien upon the vessel whose agent, owner, or master is guilty of such violation, and such vessel may be libeled therefor, in any district court of the United States within whose jurisdiction the vessel may be found. One-half of such penalty shall go to the party injured by such violation and the remainder to the government of the United States. Sec. 6. That this act shall not be held to modify or repeal sections forty-two hundred and eighty-one, forty-two hundred and eighty-two, and forty-two hundred and eighty-three of the Revised Statutes of the United States, or any other statutes defining the liability of vessels, their owners or representatives. Sec. 7. Sections one and four of this act shall not apply to the transportation of live animals. Sec. 8. This act shall take effect from and after the first day of July, eighteen hundred and ninety-three. Approved February 13, 1893. The general purpose of the act is understood to have been to regulate the relations between ship and cargo, so as to provide a limitation of liability, beyond that granted by the earlier statutes as to damages in general, by providing that if the owner exercised due diligence to make his ship seaworthy neither he nor his vessel should be liable for losses resulting from fault or error in the navigation or management of the vessel. The courts, however, have construed the statute closely against the shipowner and it is doubtful whether it has not rather increased his original liabilities instead of limiting them. He is still held to his warranty of absolute seaworthiness at the beginning of the voyage; stipulations in the bill of lading are prohibited which tend to relieve him from liability for loss arising from negligence, fault or failure in proper loading, stowage, care or proper delivery and he is forbidden to insert any clauses lessening his common-law obligations as a carrier. In the Carib Prince, 170 U. S. 655, the damage to cargo was caused by latent defects in a rivet, from which the head had come off, leaving a hole through which water entered and injured libellant's merchandise. The defect was due to too much hammering during the construction of the hull, causing the rivet to become brittle and weak. By reason of this defect the vessel was unseaworthy at the time the bill of lading was issued, although the owner did not know it. The bill of lading exempted the owner of the vessel from liability on account of "latent defects in the hull." The court held that the bill of lading was intended to confer exemption only to latent defects arising subsequent to sailing and consequently that there was no contractual limitation of liability, and with reference to the exemption from liability claimed under the Harter Act, said: Because the owner may, when he has used due diligence to furnish a seaworthy ship, contract against the obligation of seaworthiness, it does not at all follow that when he has made no contract to so exempt himself he nevertheless is relieved from furnishing a seaworthy ship, and is subjected only to the duty of using due diligence. To make it unlawful to insert in a contract a provision exempting from seaworthiness where due diligence has not been used, cannot by any sound rule of construction be treated as implying that where due diligence has been used, and there is no contract exempting the owner, his obligation to furnish a seaworthy vessel has ceased to exist. The fallacy of the construction relied upon consists in assuming that because the statute has forbidden the shipowner from contracting against the duty to furnish a seaworthy ship unless he has been diligent, that thereby the statute has declared that without contract no obligation to furnish seaworthy ship obtains in the event due diligence has been used. * * * * * The exemption of the owners or charterers from loss resulting from "faults or errors in navigation or in the management of the vessel," and for certain other designated causes, in no way implies that because the owner is thus exempted when he has been duly diligent that thereby the law has also relieved him from the duty of furnishing a seaworthy vessel. The immunity from risks of a described character, where due diligence has been used, cannot be so extended as to cause the statute to say that the owner when he has been duly diligent is not only exempted in accordance with the tenor of the statute from the limited and designated risks which are named therein, but is also relieved as respects every claim of every other description from the duty of furnishing a seaworthy ship. In the Wildcroft, 201 U. S. 378, a cargo of sugar was injured by an opening of a valve in the ship's side in such a manner that water got into the cargo. The vessel was in all respects seaworthy at the beginning of the voyage, and the court held that having discharged the duty of providing a seaworthy ship the vessel was relieved from liability arising out of an unseaworthy condition, which devolved after the beginning of the voyage and without the fault of the owners. It was emphasized, however, following the case of the Southwark, 191 U. S. 1, that the burden is upon the owner of a vessel to show by reasonable and proper tests that the vessel was seaworthy and in a fit condition to receive and transport the cargo undertaken to be carried and that if, by failure to adopt such tests and furnish the required proofs, the question of the ship's seaworthiness was left in doubt, that doubt must be resolved in favor of the shipper, because the vessel owner had not sustained the burden cast upon him by the law to establish that he had used due diligence to furnish a seaworthy vessel. As it emerges from the interpretation of the courts, the effect of the Harter Act seems to amount to this: The act says to the shipowner: 1. You may make a valid bargain by which you will be exempted from liability, if you use due diligence to make the ship seaworthy at the beginning of the voyage, and some defect develops which eluded your diligence. Unless you make such a bargain, your obligation to provide a ship which is seaworthy at the commencement of the voyage is absolute, and, in no event, can you bargain to relieve yourself from using due diligence. 2. You cannot bargain away your duty and obligation to use due diligence to see that your vessel is maintained in seaworthy condition during the voyage, but you may, if you like, bargain that if you use due diligence and your ship nevertheless become unseaworthy, you shall be relieved from responsibility for damage to cargo on that account. 3. If you use due diligence to employ a competent master and crew and their skill in navigation fails or the ship encounters perils of the sea and accident happens to the cargo you are not responsible for the damage. Your exemption from responsibility in this case is given by the statute and you do not need to bargain for it. 4. Your exemption from liability does not extend to damage due to improper loading and stowage. =11. Insurance.=--Where the shipowner is entitled to the benefits of the Limited Liability Law, his liability is terminated by a surrender or abandonment of the ship and her pending freight. He may retain the insurance and her creditors can not claim it. He is not obliged to account for the insurance money which he may have collected for the loss or damage to his vessel. In this respect the law of the United States is more liberal to the shipowner than that of many other countries. The question was decided in the cases of the City of Norwich, 118 U. S. 468, and the Scotland, in the same volume at page 507. The latter will illustrate the rule; the _Scotland_ and the _Dyer_ were in collision and both sunk; the lower court held the _Scotland_ at fault and awarded the owners of the _Dyer_ upwards of $250,000, as damages. The value of the _Scotland_ before the collision was about $500,000, and her owners had collected insurance on her to the amount of $299,867.42. The value of her wreckage was $4,927.85. The Supreme Court held that her owners' liability was limited to this last amount and that the owners of the _Dyer_ could not claim any part of the insurance. =12. Single Ship Companies.=--This is a form of organization which has the advantages of the general law of corporations in limiting the liability of shareholders to the amount of their stock. If such a corporation has all its capital invested in a single ship, its liability is, of course, limited to the amount of the investment and if the shares have been paid in full there can be no further calls upon the shareholders. When the ship is lost, all liabilities are lost with her except such as the shareholders may have personally guaranteed or assumed. The corporation which owns several ships will obviously not have the same degree of limitation. Hence the popularity among investors, particularly in England, of the single ship company. As far as the corporate affairs are concerned the laws of the State in which it is incorporated must be observed. In the maritime law, its status is that of an individual shipowner. The privity or knowledge of its managing officers may preclude it from the protection of the admiralty law of limited liability; if so, it cannot retain the insurance or any other part of its capital against its creditors, but, when the capital is lost or exhausted, the stockholders who have paid in full for their shares will have no further responsibility. REFERENCES FOR GENERAL READING _Admiralty_ (1910), Benedict, Chapter XXXV. _Carriers_, Wheeler, Chapters I-III. _Admiralty_, Hughes, Chapters VIII and XVI. _Collisions at Sea_, Marsden (1904), Chapter VII. _Limitation of Liability_, Van Santvoord, 1887. Rebecca-Ware (Fed. Cas. No. 11,629). Trans. Co. _v._ Wright, 13 Wall. 104. Benefactor, 103 U. S. 247. Scotland, 105 U. S. 24. City of Norwich, 118 U. S. 468. O'Brien _v._ Miller, 168 U. S. 287. La Bourgogne, 210 U. S. 95. Richardson _v._ Harmon, 222 U. S. 96. Pendleton _v._ Benner Line, 246 U. S. 353. [17] Liability does not extend to parts of a tow having no motive power of their own when attached to a tug whose faulty navigation caused a collision even though the damage resulted from the impact of the tow and the tug itself did not physically come into collision at all, and this is so notwithstanding the tug belongs to the same owner. Liverpool &c. Navigation Co. _v._ Brooklyn Eastern Dist. Terminal, U. S. Advance Sheets, 1919-20, 85, decided by the Supreme Court December 8, 1919. [18] Justice Holmes in Liverpool, etc., Navigation Co. _v._ Brooklyn Eastern Dist. Terminal (_supra_). CHAPTER IX MARITIME LIENS =1. How Created.=--In general and within the limits hereinafter mentioned, every service rendered to a ship and every injury done by a ship, creates a maritime lien upon her for the benefit of the individual who did the work or suffered the wrong. Those who furnish supplies or fuel or provisions, or make repairs, or render services, as well as the members of the crew and officers (except the master) acquire such liens for the collection of the amounts due them. A like right or privilege accrues for the damage done through negligence on the part of the ship resulting in damage to persons or property, as by collision or injury to cargo. So these liens are divided into two classes, those _ex contractu_ (arising out of agreements, express or implied) and those _ex delicto_ (arising out of wrongs or torts). The authority of the master to obligate the ship so that a lien arises has been discussed under the title "Master." The managing owner, ship's husband, master or any person to whom the management of the vessel at port of supply is entrusted may by ordering supplies, repairs, render the vessel liable to a maritime lien. If the master be drunk or disabled and another person is discharging his duties and is in effect for the time being master of the ship, such person may create a valid lien. Thus it has been held that the vessel is bound for supplies ordered by the mate acting during the illness of the master. The vessel is also bound for supplies furnished on the order of any member of the ship's company and with the master's knowledge and acquiescence. It is customary in the administration of a large modern ship for the head of each department, e.g., the steward, chief engineer, to order supplies and for these the vessel is responsible, but only on the theory that the purchases are made with the master's authority, and if the person contracting the obligation has acted in excess of the powers delegated to him by the master, the ship will not be bound. It is incumbent on the person furnishing goods to a vessel to inquire into the authority of the individual ordering the same. Moreover, if the goods ordered are greatly in excess of the vessel's needs, it is incumbent upon the supplier to know that fact and if the goods ordered, even by the master personally, are greatly in excess of the vessel's needs the ship will not be bound. A maritime lien attaches to the offending ship only, and not to her cargo (except for unpaid freight) and this is true even though the cargo belonged to the owner of the offending ship. As was said by Mr. Justice Brown in the case of the Bristol, 29 Fed. 867: The cargo, except for the collection of the freight due, cannot be held for the faults of the ship. There being no lien beyond freight due, no proceeding _in rem_ lies against the cargo for damages by collision, if the freight be paid, whether the cargo belongs to the owner of the offending vessel or not; and, if arrested, the cargo must be released upon the payment of the freight due. A maritime lien, being essentially a remedy against the vessel, may attach even in a case in which the owners are not personally responsible; as for instance, where a state pilot, in charge of a ship under a state statute which renders his employment compulsory, negligently brought the ship into collision, she was subjected to a lien for the damage done, although the pilot was in no sense the agent of the owners, and no personal liability rested upon them. The China, 7 Wall. 53. The lien attaches only by virtue of contracts or torts which are wholly maritime in their nature. It is frequently difficult to determine the nature of a contract or tort. Thus persons digging ice and snow from around a vessel on a beach, and about to be launched did not acquire a maritime lien because the service was performed on shore. Whereas persons who floated a vessel which had been carried far ashore were held to have performed a maritime service and to be entitled to a lien. In a case in which a vessel communicated fire to a wharf to which she was made fast, it was held that the tort was not maritime, whereas, had she been in the stream and had communicated fire to another vessel in the stream, the tort would have been maritime and would have given rise to a maritime lien (Hough _v._ Trans. Co., 3 Wall. 20). Conversely a tort having its inception on land and completed on shipboard will give rise to a lien. As for example where a man working on board ship was injured by a piece of lumber thrown through a chute by a man working on a wharf. (Herman _v._ Mill Co., 69 Fed. 646). A lien arises in favor of the owners or temporary owners of a vessel upon cargo actually on board for unpaid freight and for demurrage. This is the only case in which possession of the security is essential to the existence of a maritime lien. If the cargo is removed from the ship the maritime lien is lost. In this class of cases suit to enforce the lien should be instituted before the cargo is discharged. =2. Essential Value.=--The essential value of these liens lies in the right they give to have the ship arrested and sold by a court of admiralty for their satisfaction, and in the speed and security with which the remedy can be applied. The vessel is arrested immediately upon the filing of the libel, before the liability is proven or the case tried, and may not leave port without giving bond to secure the claim (see Chapter XVII, Admiralty Remedies). =3. Independent of Notice or Possession.=--They do not depend upon notice or recording or possession and do not in any way resemble a mortgage. They are, in fact, an actual property in the ship, created as soon as the service is rendered or the wrong suffered (Yankee Blade, 19 How. 82). =4. Secret.=--As these liens do not depend upon notice or record, they are essentially secret in their nature and even purchase of the ship, in good faith and for value, will not be protected against them (The Marjorie, 151 Fed. 183). =5. Diligence Required.=--On the other hand the law requires the lienor to be diligent in enforcing his lien so that third parties may not be unduly prejudiced thereby. If he is not diligent, the court will hold him guilty of laches and the lien may become stale as against all parties other than the owner. =6. Rules of Diligence.=--There are no hard and fast rules defining diligence or the limit after which a lien becomes stale. Under the general maritime law, the voyage was the test; liens which accrued on one voyage were required to be enforced before another voyage was made or they became stale as to those of the latter. In deep-sea navigation, where the voyages are prolonged, this rule still obtains. On the Great Lakes, where the trips or voyages are comparatively short, and navigation is closed by the winters, the season of navigation is the rule. Liens not enforced during the season or the following winter will be postponed to those of the later season. In New York harbor, the local conditions have resulted in a forty-day rule; in Virginia, under somewhat different conditions, a one-year rule has appeared. The safe method is to be prompt and diligent in collecting liens against a ship; delay is always dangerous and there may be no other financial responsibility. This course is also for the best interests of the shipowner; interest and costs accumulate rapidly where the liens are enforced by the courts. In the case of the Marjorie, 151 Fed. 183, above cited, a private yacht was libeled in Baltimore on account of coal furnished her in Norfolk nearly a year previously. She spent that time voyaging up and down the coast, putting in at various ports and when libeled had been laid up for the winter. She had not been in Norfolk subsequent to the occasion on which the coal was furnished. About six months after the coal was furnished she was sold to a new owner, who, finding no lien on record against her, paid the full purchase price. The Court held: As commercial enterprise would be vexatiously incommoded and the free circulation and disposal of vessels prevented if such liens, which are not required by law to be made manifest by public registration, were allowed to lie dormant for an indefinite period, the courts have uniformly held, where the rights of _bona fide_ purchasers will be injuriously affected if it is allowed to prevail, that the lien is lost if there has been long delay, and there has been reasonable opportunity to enforce it. The diligence required is usually measured by the opportunity of enforcement. In nearly all of the cases where the courts have held the lien to be lost and where there has been change of possession, there has been unreasonable delay on the part of the creditor in availing himself of the opportunities of enforcing his lien. * * * * * In the case under consideration the libel was filed within less than a year. The yacht had been sailing from port to port, and never came within the jurisdiction of the port where the supplies were furnished. The claim was a small one and hardly justified the employment of a detective to follow her wanderings. The lien was asserted as soon as the yacht was found.... The law is well settled that liens of this nature must be sustained if there has been reasonable diligence in asserting them. A long line of decisions shows that a delay of a year in circumstances such as are disclosed by the testimony is not unreasonable, and to lay down any other rule would tend to unsettle the law and to disturb the credit which in the interest of commerce must be extended to ships for supplies when away from their home ports to enable them to continue their voyages, a credit only given upon the faith that they have a lien upon the ship. =7. Recording Liens on "Preferred Mortgage" Vessels.=--The Merchant Marine Act of 1920 (Sec. 30, Subsection G. See Appendix), provides that any one claiming a lien on an American ship which is subject to a "preferred mortgage" as defined in that Act (see Chapter X, _infra_) may record a notice of his lien with the Collector of Customs at the port of documentation, and upon the discharge of the indebtedness, shall file a certificate to that effect. A lienor who has recorded his lien is entitled to notice of any proceeding for the foreclosure of a preferred mortgage. This provision is intended to enable the lienor to come in and protect his interest. =8. Limited to Movable Things.=--These liens arise only upon movable things engaged in commerce and navigation. They cannot exist in anything which is fixed and immovable and not the subject of maritime commerce or navigation. Thus they will subsist in vessels, rafts and cargoes but not upon a bridge or a ship totally out of commission (Rock Island Bridge, 6 Wall. 213; Pulaski, 33 Fed. 383). The lien has been sustained against a dredge. (Atlantic, 53 Fed. 607). =9. Priorities.=--Important priorities exist among maritime liens and these are adjusted when the ship is sold in admiralty to satisfy her debts. The purchaser at an admiralty sale, as elsewhere stated, takes the ship free of all existing liens; the proceeds of the sale are distributed among the lienors according to their priorities, after deducting costs and expenses. Liens for torts take precedence over all prior liens, and the later lien for tort will be preferred to an earlier if there has been an absence of diligence in enforcing it. The John G. Stevens, 170 U. S. 113, is the leading case on the priority of liens against the offending vessel for torts committed by her. Mr. Justice Gray held: But the question we have to deal with is whether the lien for damages by the collision is to be preferred to the lien for supplies furnished before the collision. * * * * * The collision, as soon as it takes place, creates, as security for the damages, a maritime lien or privilege, _jus in re_, a proprietary interest in the offending ship, and which, when enforced by admiralty process _in rem_, relates back to the time of the collision. The offending ship is considered as herself the wrongdoer, and is herself bound to make compensation for the wrong done. The owner of the injured vessel is entitled to proceed _in rem_ against the offender, without regard to the question who may be her owners, or to the division, the nature, or the extent of their interests in her. With the relations of the owners of those interests, as among themselves, the owner of the injured vessel has no concern. All the interests existing at the time of the collision in the offending vessel, whether by way of part ownership, of mortgage, of bottomry bond, or of other maritime liens for repairs or supplies, arising out of contract with the owners or agents of the vessel, are parts of the vessel herself, and as such are bound by and responsible for her wrongful acts. Any one who had furnished necessary supplies to the vessel before the collision, and had thereby acquired, under our law, a maritime lien or privilege in the vessel herself, was, as was said in The Bold Buccleugh [7 Moore P. C. 267] before cited, of the holder of an earlier bottomry bond, under the law of England, "so to speak, a part owner in interest at the date of the collision and the ship in which he and others were interested was liable to its value at that date for the injury done without reference to his claim [7 Moore P. C. 285]." Liens arising out of matters of contract will be paid in substantially the following order:-- Salvage. Sailors' wages and wages of a stevedore when employed by master or owner. "Preferred mortgages" (see below). Pilotage and Towage. Supplies and Repairs. Advances of Money. Insurance premiums (where a lien). Mortgages not preferred. It may be regarded as the grand rule of priority among maritime liens, that they are to be paid in the _inverse order of the dates_ at which they accrued. Liens arising on a later voyage have priority over liens of an earlier voyage, and the later in point of time which have been for the preservation or improvement of the vessel, are to be paid in the inverse order of the dates at which they accrued, the later debt being paid in full before anything is allowed to the lien of an inferior grade. The reason for this is because the loan, or service, or whatever created the later lien has tended to preserve or improve the first lien-holder in security for his lien. He is to be preferred who contributed most immediately to the preservation of the thing. An important qualification of the rule heretofore governing the priority of maritime liens on American vessels, is made by the Ship Mortgage Act of 1920 (Merchant Marine Act, see Appendix). By this act certain mortgages which conform to its provisions are called "preferred mortgages" and are made maritime liens enforceable in admiralty. In the order of priority, a preferred mortgage lien comes next after liens arising out of tort, for wages of a stevedore when employed directly by the owner, operator, master, ship's husband, or agent of the vessel, for wages of the crew, for general average and for salvage. Liens for repairs, pilotage, towage, freight and charter hire come in subsequent to "preferred mortgages." The subjects of liens for salvage, wages, pilotage and towage, advances, mortgages, freight and charter hire are discussed under the appropriate titles in this book. =10. Lien for Repairs and Supplies.=--By act of Congress approved June 23, 1910, provisions were made which substantially changed the law as it existed theretofore. This act was repealed and reënacted with amendments by the Merchant Marine Act of 1920 (see Appendix). The latter act (Sec. 30), representing the present state of the law, provides: Subsection P. Any person furnishing repairs, supplies, towage, use of drydock or marine railway, or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit _in rem_, and it shall not be necessary to allege or prove that credit was given to the vessel. Subsection Q. The following persons shall be presumed to have authority from the owner to procure repairs, supplies, towage, use of drydock or marine railway, and other necessaries for the vessel: The managing owner, ship's husband, master, or any person to whom the management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel. A person furnishing supplies or repairs to a vessel in the absence of her owners or temporary owners, and elsewhere than in her home port, and upon the order of the master, should inquire into the necessity for the supplies or repairs. If, upon reasonable inquiry, he finds that they are necessary, he may safely furnish them, relying on the credit of the vessel and upon his right to a maritime lien upon her. If reasonable inquiry fails to show any necessity, the supplier or repairer will not be entitled to a lien, even though the master gave the order. In the case of the Valencia, 165 U. S. 264, the home port of the ship was Wilmington, North Carolina. She was plying between New York and Maine. Coal was ordered for her in New York, not by the master, but by a steamship company doing business in New York whose relations to the vessel were not inquired into by the suppliers of the coal. If they had inquired, they would readily have learned that the steamship company was a charterer of the vessel and was bound by the charter party to "provide and pay for all coals." The coal was not paid for and the suppliers libeled the ship. In directing the libel to be dismissed the Supreme Court said: Although the libellants were not aware of the existence of the charter party under which the _Valencia_ was employed, it must be assumed upon the facts certified that by reasonable diligence they could have ascertained that the New York Steamship Company did not own the vessel, but used it under a charter party providing that the charterer should pay for all needed coal. The libellants knew that the steamship company had an office in the city of New York. They did business with them at that office, and could easily have ascertained the ownership of the vessel and the relation of the steamship company to the owners. They were put upon inquiry, but they chose to shut their eyes and make no inquiry touching these matters or in reference to the solvency or credit of that company. It is true that libellants delivered the coal in the belief that the vessel, whether a foreign or a domestic one, or by whomsoever owned, would be responsible for the value of such coal. But such a belief is not sufficient in itself to give a maritime lien. If that belief was founded upon the supposition that the steamship company owned the vessel, no lien would exist, because in the absence of an agreement, express or implied, for a lien, a contract for supplies made directly with the owner in person is to be taken as made "on his ordinary responsibility, without a view to the vessel as the fund from which compensation is to be derived." The St. Jago de Cuba, 9 Wheat. 409. And if the belief that the vessel would be responsible for the supplies was founded on the supposition that it was run under a charter party, then the libellants are to be taken as having furnished the coal at the request of the owner _pro hac vice_, without any express agreement for a lien, and in the absence of any circumstances justifying the inference that the supplies were furnished with an understanding that the vessel itself would be responsible for the debt incurred. In the present case, we are informed by the record that there was no express agreement for a lien, and that nothing occurred to warrant the inference that either the master or the charterer agreed to pledge the credit of the vessel for the coal. * * * * * We mean only to decide, at this time, that one furnishing supplies or making repairs on the order simply of a person or corporation acquiring the control and possession of a vessel under such a charter party cannot acquire a maritime lien if the circumstances attending the transaction put him on inquiry as to the existence and terms of such charter party, but he failed to make inquiry, and chose to act on a mere belief that the vessel would be liable for his claim. The law is even more succinctly stated in the case of the Kate, 164 U. S. 458, as follows: The principle would seem to be firmly established that when it is sought to create a lien upon a vessel for supplies furnished upon the order of the master, the libel will be dismissed if it satisfactorily appears that the libellant knew, or ought reasonably to be charged with knowledge, that there was no necessity for obtaining the supplies, or, if they were ordered on the credit of the vessel, that the master had, at the time, in his hands, funds, which his duty required that he should apply in the purchase of needed supplies. Courts of admiralty will not recognize and enforce a lien upon a vessel when the transaction upon which the claims rests originated in the fraud of the master upon the owner, or in some breach of the master's duty to the owner, of which the libellant had knowledge, or in respect of which he closed his eyes, without inquiry as to the facts. If no lien exists under the maritime law when supplies are furnished to a vessel upon the order of the master, under circumstances charging the party furnishing them with knowledge that the master cannot rightfully as against the owner, pledge the credit of the vessel for such supplies, much less one is recognized under that law where the supplies are furnished, not upon the order of the master, but upon that of the charterer who did not represent the owner in the business of the vessel, but who, as the claimant knew, or by reasonable diligence could have ascertained, had agreed himself to provide and pay for such supplies, and could not, therefore, rightfully pledge the credit of the vessel for them. Where a charterer becomes the owner _pro hac vice_, as usually occurs in the case of a "bare-boat" charter, necessary supplies ordered by the master will entitle the supplier to a maritime lien under the statute, unless the charter party contains stipulations that were known to the supplier or which he could have readily ascertained, excluding such liens. Thus in the latest decision of the Supreme Court in which the act of June 23, 1910, was construed (South Coast S. S. Co. _v._ Rudnbach, decided March 1, 1920) a bare vessel was chartered to one Levick, the contract stipulating that Levick was to pay all charges and save the owners harmless from all liens. There was also a provision that the owner might retake the vessel in case Levick failed to discharge any liens within thirty days, and a provision for the surrender of the vessel free of all liens, if Levick failed to make certain payments. The master of the ship had been appointed by the owner, but was under Levick's orders. When the supplies were ordered representatives of the owners warned the supplier that the steamer was under charter and that he must not furnish supplies on the credit of the vessel. He disregarded the warning and furnished the supplies and libeled the vessel for his lien. The Court upheld his right to the lien, holding that the warning of the owner was ineffectual because the charterer had become the owner _pro hac vice_, the master being his agent and not that of the owner, and that: Unless the charter excluded the master's power the owner could not forbid its use. The charter-party recognizes that liens may be imposed by the charterer and allow to stand for less than a month, and there seems to be no sufficient reason for supposing the words not to refer to all the ordinary maritime liens recognized by the law. The statute had given a lien for supplies in a domestic port, and therefore had made that one of these ordinary liens. Therefore the charterer was assumed to have power to authorize the master to impose a lien in a domestic port, and if the assumption expressed in words was not equivalent to a grant of power, at least it cannot be taken to have excluded it. There was nothing from which the furnisher could have ascertained that the master did not have power to bind the ship. =11. Not Sole Remedy.=--The reader will not be misled into supposing that the absence of a right to a maritime lien means that the debt is uncollectible by legal process. While the admiralty court is closed to the creditor if there be no right to a maritime lien, he has the same remedy as any other creditor by a suit at law to recover the debt or damage from the debtor, or person liable, i.e., the owner, the temporary owner, or the person who ordered the goods or did the damage as the case may be. Such a remedy lacks the peculiar advantages of the maritime lien (§ 2 _supra_, this chapter). There may also be special remedies open to him under state statutes (but see § 13, this chapter). =12. How Divested.=--Maritime items are only completely divested by payment or by an admiralty sale. Laches--that is to say delay or sloth--on the part of the lienor may prevent their enforcement against the rights of subsequent lienors or purchasers for value in good faith, but the ship is really only absolutely free from them when she has passed through a sale in proceedings _in rem_--that is, a suit against the ship. This transfers all claims to the proceeds in the registry of the court and passes a clear title to the purchaser. The Garland, 16 Fed. 283, is illustrative; she had sunk a yacht in the Detroit River with great loss of life; her business was that of a ferry between Detroit, Michigan, and Windsor, Ontario, and her value was about $20,000; libels were filed against her in Detroit on account of the collision and she was then arrested in Windsor, by process from the Maritime Court of Ontario, for a coal bill of $36.30; that court sold her in accordance with the usual admiralty practice. She then resumed her business and was arrested under the Detroit libels. These were dismissed by the United States court because all liens had been divested by the admiralty sale in Ontario and such sales are good throughout the world. No other sales, judicial or otherwise, have this effect since they convey only the title of the owner in the thing and not the thing itself. Maritime liens, therefore, are not divested or affected by the foreclosure of a mortgage, or a sheriff's sale on execution, or a receiver's sale, or any other form of conveyance of an owner's title. Nor are they divested by a writ of execution issued out of a court of common law, nor postponed to such execution. This has been held, even where the execution was in favor of the government. =13. State Liens.=--For many years there was an open question in the maritime law of the United States as to the status of liens which arose in the home port of the vessel and numerous conflicting decisions were made by the courts. The effect was that in all cases of liens arising out of contract, like supplies and repairs, the question of upon whose credit the work was done and the supplies furnished became very important; where the transaction was in the home port, there was a presumption that it was on the personal credit of the owner and no lien was allowed; and the theory of home port became extended to include the entire State in which the owner resided. Thereupon all of the states interested in maritime affairs enacted statutes providing for liens upon vessels, both maritime and nonmaritime in their nature, and a sort of admiralty proceeding against the ship to enforce them; the procedure portions of these statutes were generally held void as interfering with the exclusive jurisdiction _in rem_ of the Federal courts, but the liens which they created, if maritime in their nature, were usually enforced. By the act of Congress of June 23, 1910 (as amended and reënacted by the Merchant Marine Act of 1920, see Appendix), relating to liens on vessel for repairs, towage supplies or other necessaries, it was declared unnecessary to allege or prove that credit had been given the vessel and also provided that the Act shall supersede the provisions of all state statutes conferring liens on vessels so far as they purport to create rights _in rem_, that is to say, rights against the vessel herself. It is yet unsettled whether those of a nonmaritime class survive, as in the case of the lien for shipbuilding which, not being regarded by the admiralty as maritime, has been enforceable under the state statutes. =14. Builders' and Mechanics' Liens.=--These may arise upon a ship under the provision of local statutes and be entirely enforceable so long as they do not come into conflict with maritime liens and the exclusive jurisdiction of the admiralty. So, also, a lienor may assert his common-law right to retain possession of the ship until payment is made. This depends entirely on possession and cannot be enforced by judicial proceedings, although it may be recognized by the court when it arrests the vessel on other accounts. =15. Foreign Liens.=--Maritime liens often depend on the law of the place in which the obligation is incurred and also upon the law of the ship's flag. In other words, inquiry must frequently be made whether the local law gives a lien, whether the law under which the ship sails gives the master power to create the lien, and whether the country in which the suit is commenced has the legal machinery to enforce the lien. There is no doubt about our own admiralty courts having adequate jurisdiction and equipment to enforce any maritime lien which exists by the law of a foreign country. Its enforcement is a matter of comity and not of right when the parties are foreigners. Thus the maritime lien for collision will generally be enforced wherever the offending ship may be seized, irrespective of the place where the collision occurred. That lien exists by virtue of the general maritime law. On the other hand, there may be a closer question in regard to the lien for supplies. They may be furnished in a port of a country whose laws do not provide such a maritime lien but only give a remedy by attachment of the ship. The tendency of the weight of authority is to enforce such liens in the courts of this country whenever they exist by virtue of the general maritime law, even if they could not be enforced in the courts of the country where they arose. Possibly this gives a foreigner an advantage here over what he would have at home, but this is not really material. =16. Enforcement of Liens.=--This is discussed in Chapter XVII, Admiralty Remedies. REFERENCES FOR GENERAL READING _Admiralty_, Hughes, Chapter XVII. _Admiralty Liens of Material Men_, IX American Law Review, 654. _Features of Admiralty Liens_, XVI American Law Review, 193. _Maritime Liens_, 4 Law Quarterly Review, 379. _Priorities among Maritime Liens_, II University Law Review, 122. The DeSmet, 10 Fed. 483 (excellent annotation). Lottawanna, 21 Wall. 558. John G. Stevens, 170 U. S. 113. CHAPTER X MORTGAGES AND BONDS =1. Definitions.=--A vessel mortgage is a conveyance of the ship as security. A bottomry bond is a contract in the nature of a mortgage by which the ship is pledged as security for the repayment of money borrowed and the lender assumes the risk of loss if the ship does not survive in consideration of maritime interest, usually at a high rate. Respondentia is a loan on the cargo, to be repaid if the goods arrive, but, if lost, the borrower is exonerated. Like bottomry, it is essentially a loan without personal liability beyond the value of the property mortgaged. Vessel bonds are a modern form of security in the form of debentures of the owner, carrying interest coupons and secured by a trust deed or mortgage of the ship. =2. Bottomry Bonds.=--The name of this class of security on the ship arose from the fact that the bottom or keel of the ship was figuratively used to express the whole and to indicate that the entire vessel secured the loan. The repayment of money borrowed on bottomry depends on the safe arrival of the ship; if she is lost the loan is lost with her. The money is at the risk of the lender. Under an ordinary mortgage, the borrower must pay at all events and his personal liability survives the loss of his vessel. Under bottomry, the risk is shifted. In consideration of this risk, the lender is permitted to charge a high rate of interest without violating the law of usury. Rates of interest as high as 25 per cent. and higher have been upheld, and while in some cases the courts have ordered a reduction in the rate when it was regarded as clearly extortionate, the strong inclination of the courts is to carry out the bargain as made by the parties. The bond must be in writing. No particular form is essential but it must rest on the assumption of maritime risks by the lender or it will be no bottomry. It may be expressed after the precedent of a common-law bond, with a recital of the circumstances, provisions showing that the usual risks are on account of the obligee; and stipulations providing that the condition of performance or discharge is the safe arrival of the ship at her designated haven. The lender may secure himself against loss by taking out insurance. Such bonds may be made by the owner, in the home port, although this is not usual. He may, of course, make them anywhere. The master, however, can only do so as in cases of great necessity and the absence of the owner. His power, in this respect, is like his power to sell. His first duty is to obtain funds on the personal credit of the owner. The duty of the master to communicate with the owner, if possible, before giving a bottomry bond is the same as his duty to communicate before selling the vessel (Chapters II, § 14; IV, § 9). For this reason and in view of modern facilities for communication the giving or making of bottomry bonds by masters has, like the sale of a vessel by her master, become rare in modern times. A good illustration of a bottomry bond is found in the case of the Grapeshot, 9 Wall. 129. There the libel recited that the _Grapeshot_ was at Rio de Janeiro in April, 1858, was in great need of reparation, provisions and other necessaries to render her fit and capable of proceeding to New Orleans, the master having no funds or credit in Rio de Janeiro, and the owner not residing there and having no funds or credit there, the libellants at the request of the master loaned him $9,767.40, on the bottomry and hypothecation of the bark at the rate of 19-1/2 cents, maritime interest; that the master did expend the sum borrowed for repairing, victualing and manning the bark to enable her to proceed to New Orleans and that she could not possibly have proceeded with safety without such repairs and other necessary expenses attending the refitting of her. Chief Justice Chase described the general characteristics of a bottomry bond as follows: A bottomry bond is an obligation, executed generally, in a foreign port, by the master of a vessel for repayment of advances to supply the necessities of the ship, together with such interest as may be agreed on; which bond creates a lien on the ship, which may be enforced in admiralty in case of her safe arrival at the port of destination; but becomes absolutely void and of no effect in case of her loss before arrival. Such a bond carries usually a very high rate of interest, to cover the risk of loss of the ship as well as a liberal indemnity for other risks and for the use of the money, and will bind the ship only where the necessity for supplies and repairs, in order to the performance of a contemplated voyage, is a real necessity, and neither the master nor the owners have funds or credit available to meet the wants of the vessel. The Court also quoted with approval the decision in the old case of the Aurora, 1 Wheat. 96, in which it was said: To make a bottomry bond, executed by the master, a valid hypothecation, it must be shown by the creditor that the master acted within the scope of his authority; or, in other words, that the advances were made for repairs or supplies necessary for effecting the objects of the voyage, or the safety and security of the ship. And no presumption should arise in the case that such repairs or supplies could be procured on reasonable terms with the credit of the owner, independent of such hypothecation. And in summarizing the conclusion reached in the case it was said: To support hypothecation by bottomry, evidence of actual necessity for repairs and supplies is required and, if the fact of necessity be left unproved, evidence is also required, of due inquiry and of reasonable grounds of belief that the necessity was real and exigent. These bonds are not required to be placed on record but great diligence should be employed in enforcing them so that the rights of innocent purchasers or subsequent lienors may not be impaired. =3. Respondentia.=--This is security for a loan on marine interest created on the cargo. It may be created by the cargo-owner, at home, if he sees fit, but ordinarily, only arises out of necessity during the course of the voyage. The master has the same authority to borrow on the security of the cargo as he has in cases of bottomry. The proceeding must be sanctioned by great necessity and liability to communicate with, or obtain relief from, the owner of the goods. The duty of communication is the same as in the case of bottomry bonds (see preceding sections). The rule with respect to interest is the same as that governing bottomry bonds. The instrument may be in any form which expresses the facts and conditions; an ordinary bill of sale may be used or the form of a bottomry bond. The instrument is not required to be recorded. The case of Ins. Co. _v._ Gossler, 6 Otto 645, contains an example of a bond, which was both bottomry and respondentia. The bark _Frances_ en route from Java to Boston with a cargo of sugar encountered a hurricane which compelled the master to cut away her mast to save the vessel and put into Singapore for repairs. Destitute of funds and without credit, the master executed a bond with maritime interest at 27-1/2 per cent., secured upon the boat, cargo and freight. When nearing the completion of her voyage the bark was cast away on the shore of Cape Cod. She could not be salved as an intact vessel, but was sold as a wreck and subsequently broken up by the purchaser in order to make use of the parts of her. Some of her cargo was saved. The Court held that the salvaged portion of the cargo and the wreck as she lay on the beach must respond to the obligation of the bond, saying that nothing but an utter annihilation of the thing hypothecated would discharge the borrower on bottomry, the rule being that the property saved, whatever it may be in amount, continues subject to hypothecation. Unless the ship be actually destroyed and the loss to the owners absolute, it is not an utter loss within the meaning of such a contract. If the ship still exists, although in such a state of damage as to be constructively totally lost, within the meaning of a policy of insurance; ... she is not utterly lost within the meaning of that phrase in the contract of hypothecation. Thus, the doctrine of "constructive total loss," which is important in the law of marine insurance, has no application to bottomry. It is customary in bottomry and respondentia bonds to insert a clause reserving to the lender, in case of utter loss, any average that may be secured upon all salvage recoverable. =4. Necessity for Advances.=--The lender of money on a bottomry bond is under obligation to satisfy himself that the supplies or refitment for which the money is borrowed are necessarily required by the vessel. The act of June 23, 1910 (discussed in § 9 of preceding chapter), apparently has no application to money advanced on bottomry bonds and certainly has no application to respondentia bonds. If the actual need for the advance sought to be secured by the bottomry or respondential bond does not exist, the bond will not constitute a lien upon the vessel or cargo. =5. Mortgages.=--These are species of chattel mortgages. The ship is a chattel or personal property, for many purposes. Prior to June 5, 1920, these mortgages were not recognized as maritime transactions. The Merchant Marine Act of that date makes radical changes in the law governing ship mortgages. The new provisions are to be found in Section 30, which is to be cited, independently of the rest of the statute, as the "Ship Mortgage Act, 1920," and is printed in full with the rest of the Merchant Marine Act in the Appendix. =6. Are Mortgages Maritime Contracts?=--An ordinary mortgage upon a vessel, whether made to secure the purchase money or to obtain funds for general purposes, is not a maritime contract. This is the rule in this country, as announced by the Supreme Court in the J. E. Rumbell, 148 U. S. 1, although it is different under the general maritime law in other countries. Accordingly, courts of admiralty in the United States, have no jurisdiction of a libel to foreclose a mortgage or to enforce title or right to possession under it. If, however, the ship has been sold under admiralty process, and there are proceeds in the registry after satisfying maritime liens, the court will pay over the surplus, to a mortgagee in preference to the owner or general creditors. The Ship Mortgage Act (_supra_) makes a sweeping exception to the foregoing rule in cases of American vessels where the mortgagee is an American citizen and where the parties fulfill certain formalities required by the Act and discussed in the next section. The Act provides that these mortgages shall be known as "preferred mortgages" and confers upon the courts of admiralty exclusive jurisdiction to foreclose them. There has yet been no judicial interpretation of this Act. Some doubt may be entertained whether it is within the power of Congress to convert ship mortgages into maritime contracts; that is to say, can Congress take a transaction, which has always been regarded as wholly foreign to the admiralty and confer upon it a maritime quality? The decision of this point is of the utmost importance and will be awaited with the greatest concern by every one interested in ships and shipping. =7. When Postponed to Other Liens.=--An ordinary vessel mortgage is a very inferior grade of security because it is subordinate to all maritime liens and has only a qualified and dubious standing in the only courts which enforce them. One who advances money to a ship or her owner on mortgage is bound to know that the ship navigates on credit, and must continue to accumulate liens in order to earn freight, and that she may be pledged for bottomry or incur liability for torts. He is therefore postponed to sailors' wages, salvage, towage, advances, bottomry, general average, repairs, supplies, collision, personal injury, damage to cargo, breach of contract, penalties, and liens created by local law which the admiralty will enforce. Here again the Ship Mortgage Act, 1920, makes a radical change in the case of "preferred mortgages" given upon American vessels to secure American investors. The Act makes the lien of a "preferred mortgage" inferior to liens of prior date and liens for damages arising out of tort, for wages of stevedores when employed directly by the owner, operator, master, ship's husband, or agent of the vessel, for wages of crew, general average and salvage, including contract salvage; but superior to all other liens, such for example as repairs, supplies, towage, pilotage, etc. =8. Form.=--No particular form is essential to a vessel mortgage except that the requisites of the Federal Statutes in regard to recording and conveyance must be observed if it is to be placed on record in the office of a collector of customs. They require that every instrument in the nature of a bill of sale or other conveyance or incumbrance of any ship or vessel, shall be duly acknowledged before a notary public or other officer authorized to take acknowledgments of deeds (7 U. S. Comp. St. §§ 7778, 7779). It should contain a copy of the last certificate of registration or enrollment. Government blank mortgages can usually be obtained at the custom house and are preferred, although any instrument following their general form will be sufficient. A bill of sale may be used, although absolute in its terms, and the fact that it is only security can be shown by parole. Trust-deeds or mortgages securing issues of bonds are in general use where large amounts are involved. These forms are very elaborate and resemble railroad mortgages in their elaborate details. In all vessel mortgages, important provisions are those in regard to the insurance, the amount of liens which the ship may incur, the waters which she may navigate, and the rights of the mortgagee on default. It is desirable to provide for contingencies, as far as possible, by clear and definite agreements in the instruments. To entitle a mortgage of an American vessel to an American mortgagee to the status of a "preferred mortgage" under the Ship Mortgage Act, 1920, giving its lien the superiority described in the preceding section, it is necessary that it should be recorded; that an affidavit be filed at the time of recordation to the effect that the mortgage is made in good faith and without design to hinder, delay or defraud any existing or future creditor of the mortgagor or any lienor; and that there be endorsed upon the ship's documents the names of the mortgagor and mortgagee, the time and date of the endorsement; the amount and date of the maturity of the mortgage. The formalities to be observed in the creation of "preferred mortgages" are described in detail in the Act which is printed in full in the Appendix and should be observed with scrupulous exactness. =9. Recording.=--No mortgage of any vessel of the United States is valid against third parties unless it is duly recorded in the office of the collector of customs where such vessel is registered or enrolled. She must be registered or enrolled by the collector of that collection district which includes the port to which such vessel shall belong at the time of her registry; which port shall be deemed to be that at or nearest to which the owner, if there be but one, or, if more than one, the husband or acting and managing owner of such vessel usually resides. Unless a mortgage is properly recordable in the custom house, the mere fact that it is recorded there is insufficient to give it validity against others than the mortgagor. Record in the wrong office and premature record in the right office are equally invalid. Thus a mortgage was held bad against general creditors in the case of the Empire Shipbuilding Company, 221 Fed. 223, where it was made before the ship was completed and recorded on the same day she was enrolled. The proper course would have been to first enroll the ship as a vessel of the United States and then execute and record the mortgage. As we have observed in Chapter II, § 16, _supra_, where a vessel at sea is mortgaged it is wise, in order to be safe until she returns, to record the mortgage at the home port, as shown by her outstanding document, as well as at the new home port if there is to be a change of home port. =10. Rights of Mortgagee.=--These depend principally upon the stipulation in the mortgage. He is entitled to have his security made available to the satisfaction of his debt, but, until foreclosure, the ship is subject to many claims which may impair or destroy its value. If seized by admiralty process, the mortgagee may appear and protect his interest, as by taking possession under the usual claim and bond. Seizures or levies under local law are subject to the rights of the owner of a valid mortgage. Generally, the terms of the instrument will provide that, upon any default by the mortgagor or impairment of the security by acts of third parties, the mortgagee may take possession, declare the entire debt due, and foreclose. Where maritime liens affect the security, the mortgagee is entitled to pay them and be subrogated thereto, that is to say, after discharging the liens, he stands in the shoes of the lienors. Where the ship has been arrested and sold by a court of admiralty, and its proceeds are in the registry, he may appear and file an intervening petition for the protection of his interest therein. Where the admiralty disclaims jurisdiction over vessel mortgages, it will pay over surplus proceeds to the mortgagee in preference to the owner or the owner's general creditors. So the mortgagee may answer and contest the claims of the lienors in their proceedings against the ship. =11. Liabilities of Mortgagee.=--A mortgagee in possession of the ship becomes liable as owner for supplies furnished or repairs made at his request or at the request of those apparently authorized to act for him. So, if he operates the ship, he will be liable for the risks and expenses of the voyage. =12. Transfer and Payment.=--A vessel mortgage may be assigned or transferred like other similar forms of security. If the debt is evidenced by negotiable promissory notes or bonds, the transfer of them carries with it the security, although the more usual and convenient way is by a formal assignment of mortgage placed on record with the collector. The assignee succeeds to all the rights of the original mortgage. So the mortgage may descend to heirs or pass to creditors like other personal property, in accordance with the law of the owner's domicile. On payment of the debt, the mortgage is automatically canceled and the mortgagor is entitled to have the fact placed upon the records by the usual certificate of payment and discharge. In the case of "preferred mortgages" under the Ship Mortgage Act, 1920, the ship's documents may not be surrendered (except in case of forfeiture or judicial sale) without the approval of the Shipping Board which will be withheld unless the mortgagee consents, and the interest of the mortgagee will not be terminated by a forfeiture of the vessel unless the mortgagee was implicated in the act which caused the forfeiture. No rights under any mortgage of an American ship, whether preferred or not, may be assigned to any person not a citizen of the United States without the approval of the Shipping Board. =13. Foreclosure.=--A mortgage upon an American vessel, although necessarily recorded according to Federal law, is still only a chattel mortgage for many purposes and must be foreclosed in accordance with local law. This will be in one of three ways: by a suit in a court of competent jurisdiction to obtain a decree of foreclosure and sale, by a sale in accordance with local statutory provisions in respect of chattel mortgages, by exercise of the power of sale which is usually contained in the instrument itself. The last is the method best adapted to vessel property and carefully drawn mortgages usually contain plain and adequate provisions for that purpose. If, however, the mortgagee be an American citizen and the requirements of the Ship Mortgage Act, 1920, with reference to "preferred mortgages" have been complied with, the foreclosure proceeding is to be instituted in a United States District Court sitting in admiralty, and no one except an American citizen may purchase an American ship at a sale by admiralty decree in a suit _in rem_. The mortgagor's title can only be extinguished by foreclosure but stipulations giving the mortgagee the power, on breach of condition, to dispose of the mortgaged property, at public or private sale, and after applying the proceeds to his expense and debt, to account for the surplus to the mortgagor, are valid and may be executed without resort to a court. The mortgagor may appoint the mortgagee, as well as any other person, to sell his property for the purpose of satisfying his debts. The mortgagee should proceed strictly in accordance with the power of sale and carefully observe its terms in regard to notice, time and place. The conduct and fairness of such sales are open to investigation at the instance of the mortgagor and will be set aside on proof of unfair or oppressive conduct or deviation from the terms of the power or statute. It is not necessary to hold the sale on board the ship if the mortgage provides another place, but, in the absence of such a provision, it would be safer to so make the sale as there are authorities holding that the mortgaged property must be in view when the sale is made. There are numerous rules in the general law of foreclosure of chattel mortgages which are quite inapplicable to ships and much embarrassment may be avoided if the instrument is drafted with these in mind. The courts will enforce the contract as the parties make it, if its provisions are plain and are carefully observed. As in other cases, the sale may be adjourned from time to time and the mortgagee may employ an agent or attorney to make it. The debt may be used instead of money; the mortgagee may bid in the property himself and execute an appropriate bill of sale. The power of sale is merely cumulative and will not prevent a suit for foreclosure or an action at law on the debt. The sale is, of course, subject to all maritime liens superior to the mortgagee, but will extinguish all subordinate liens and subsequent titles if the mortgage was duly recorded. Where an American ship subject to a "preferred mortgage" is sold at an admiralty sale at the suit of a lienor whose lien is inferior to that of the mortgage, the Ship Mortgage Act, 1920, provides that the vessel shall be sold free from all preëxisting claims, but the court shall, at the request of the mortgagee, the libellant or any intervenor, require the purchaser to give and the mortgagor[19] to accept a new mortgage of the vessel for the term of the original mortgage, and in that case the mortgagee shall not be paid from the proceeds of the sale and the purchase price shall be diminished in the amount of the new mortgage debt. REFERENCES FOR GENERAL READING _Chattel Mortgages_, Herman (1877), Chapter XIII. _Mortgages_, Boone, § 254. J. E. Rumbell, 148 U. S. 1. Grapeshot, 9 Wall. 129. Blake, 107 U. S. 418. O'Brien _v._ Miller, 168 U. S. 287. [19] Apparently a misprint in the act for mortgagee. CHAPTER XI COLLISION =1. Definition.=--In maritime law, collision is the impact of ship against ship, although usage is increasing the scope of the word so as to include contact with other floating bodies. It does not include stranding or running into structures forming a part of the land, such as bridges and wharves. The question whether a collision is a subject for adjudication in admiralty is frequently one of some nicety. What constitutes a vessel within the meaning of admiralty jurisprudence has been discussed in Chapter 1, § 4.[20] While, in general, objects which come into collision must be afloat in the water to warrant recourse to the admiralty courts, and certainly must not be permanently attached to the shore, nevertheless the jurisdiction has been exercised when the collision was between a barge and a pier erected in the midst of a stream and unlawfully obstructing navigation. Atlee _v._ Union Packet Co., 21 Wall. (U. S.) 389. The jurisdiction has also been exercised where boats have come into collision with submerged and stranded wrecks and sunken articles. =2. Liability Dependent on Negligence.=--Liability for collision depends on negligence or fault causing or contributing to the disaster. Such negligence may be on the part of the ships actually in contact with each other or of outside vessels and consists in the violation of the statutory regulations for preventing collisions at sea or the failure to exercise that skill, care, and nerve ordinarily displayed by the average competent master. Collisions may occur without negligence, or by inscrutable fault, and then there is no liability for the resulting damage. Such are collisions solely due to the darkness of the night or to storms. In the Morning Light, 2 Wall. 550, the collision occurred at 4 A. M., on an intensely dark night in a dense fog and rain. The court (Clifford, J.) said: Reported cases where it has been held that collisions occurring in consequence of the darkness of the night and without fault on the part of either party, are to be regarded as inevitable accidents are numerous. * * * * * Where the loss is occasioned by a storm or any other _vis major_, the rule as established in this court is, that each party must bear his own loss, and the same rule prevails in most other jurisdictions.... Different definitions are given of what is called an inevitable accident, on account of the different circumstances attending the collision to which the rule is to be applied. Such disasters sometimes occur when the respective vessels are each seen by the other. Under those circumstances, it is correct to say that inevitable accident, as applied to such a case, must be understood to mean a collision which occurs when both parties have endeavored by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident. When applied to a collision, occasioned by the darkness of the night, perhaps a more general definition is allowable. Inevitable accident, says Dr. Lushington, in the case of the Europa, 2 Eng. Law & E. 559, must be considered as a relative term, and must be construed not absolutely, but reasonably with regard to the circumstances of each particular case. Viewed in that light, inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution and maritime skill. =3. Tests of Negligence.=--The primary question is whether there has been a violation of any of the regulations or rules of navigation. Navigable waters constitute a common highway and the rights and duties of vessels using them are quite similar, in legal principles, to those of vehicles using streets, and roadways on the land. Hence the general maritime law recognized the practice of keeping to the right, avoiding others whose movements were hampered, and not running down another because he was on the wrong side. Ultimately the general practice of navigators was expressed in formal rules and finally all nations united in promulgating them in the form of statutes which are now practically uniform throughout the world. They are, in effect, a code of international law for the purpose of avoiding collisions. Back of these special rules are the general requirements of the maritime law in regard to careful navigation; a lookout is essential although there is no statute requiring one to be maintained. It should be observed that vessels navigating in darkness, fog or storm must take all precautions against collision which such a state of things would suggest to a prudent navigator. A vessel failing to take such precautions will be in fault in a collision. Failure to hear fog signals is not negligence. The ordinary steering and sailing rules do not apply in fog. =4. The Regulations.=--The express rules for the navigation of vessels of the United States consist of the following: 1. International Rules (Act of Aug. 19, 1890, as amended; U. S. Comp. St. 1916). 2. Rules for Great Lakes and connecting waters (The "White Law"; Act of February 8, 1895; U. S. Comp. St. 1916). 3. Rules for Harbors, Rivers and Inland Waters (Act of June 7, 1897; U. S. Comp. St. 1916). 4. The Mississippi Valley Rules, § 4233, Revised Statutes. 5. Rules of Supervising Inspectors. 6. Local rules and municipal regulations. These rules deal with the distinctive lights required for different vessels, signals, speed, rules governing the management of sailing and steam vessels under different conditions of weather and various relative positions of vessels. While they have very often been the subject of judicial interpretation in collision cases their application belongs to the subject of navigation rather than to that of admiralty law in the present work. The statutory rules are of the highest importance and the mere fact of a breach of any of these is _prima facie_ (but not conclusive) evidence of negligence. The infringing vessel must satisfy the court that its violation of law not only did not, but could not, contribute to the collision. As was said by Chief Justice Fuller in Belden _v._ Chase, 150 U. S. 674: They are not mere prudential regulations, but binding enactments, obligatory from the time that the necessity for precaution begins, and continuing so long as the means and opportunity to avoid the danger remains. Obviously they must be rigorously enforced in order to attain the object for which they were framed, which could not be secured if the masters of vessels were permitted to indulge their discretion in respect of obeying or departing from them. Nevertheless, it is true that there may be extreme cases where departure from their requirements is rendered necessary to avoid impending peril, but only to the extent that such danger demands. * * * * * Obedience to the rules is not a fault even if a different course would have prevented the collision, and the necessity must be clear and the emergency sudden and alarming before the act of disobedience can be excused. Masters are bound to obey the rules and entitled to rely on the assumption that they will be obeyed, and should not be encouraged to treat the exceptions as subjects of solicitude rather than the rules. It is true that where obedience to the rules will result in collision a navigator is justified in disobeying the rule. It was held in the Oregon, 158 U. S. 186, "that the judgment of a competent sailor _in extremis_ cannot be impugned." Cases in which disregard of the rules has been upheld as justifiable by the courts have generally been cases in which the other vessel has already infringed a rule and a situation has arisen in which obedience to the rule could only result in collision. Such exceptions, however, as was said in the Albert Dumois, 177 U. S. 240, "are admitted with reluctance on the part of the courts, only when the adherence to such rules must almost necessarily result in a collision--such, for instance, as a manifestly wrong maneuver on the part of an approaching vessel." In the John Buddle, 5 Notes of Cas. 387, it was said: All rules are framed for the benefit of ships navigating the seas, and no doubt circumstances will arise in which it would be perfect folly to attempt to carry them into execution, however so wisely framed. It is, at the same time, of the greatest possible importance to adhere as closely as possible to established rules and never to allow a deviation from them unless the circumstances which are alleged to have rendered such deviation necessary are most distinctly approved and established; otherwise, vessels would always be in doubt and go wrong. =5. Damage to Ship.=--The owner of a ship wrongfully injured by collision is entitled to complete restitution. If the loss is total, he recovers her value, with interest from the date of the loss. If the loss is partial, he will recover the cost of full and complete repairs and if such repairs make the vessel a better and stronger one than she was before, he is entitled to that benefit; he will also recover demurrage or compensation for the loss of use of his ship during the time occupied by the repairs. It frequently happens that the ship is not an absolute total loss, in the sense of being completely destroyed or sunk beyond possibility of recovery, but so injured that the cost of repair will exceed the value at the time of collision; the owner may then treat her as a constructive total loss and claim from the wrongdoer the same amount as if the destruction had been complete. In other words, when the ship is so injured that a prudent business man would not repair, the owner abandons the wreck and claims a total loss. If he recovers, the title to the wreck passes to the wrongdoer.[21] Expenses incident to the collision are also included in the ship's damage, such as the owner's disbursements in looking after his property; the cost of protest and survey; the wages and board of the crew while necessarily kept on board, the costs of superintending repairs and securing a new rating. Loss of freight is also an item of damage. =6. Damage to Cargo.=--The cargo-owner is entitled to recover his damages from the offending ship and the ordinary measure is the value of the goods at the time and place of a total loss, with interest and incidental expenses. The purpose of the rule is to place him, as nearly as may be, in the same position as if the collision had not occurred. Where the loss is partial, as where the goods arrive in a damaged condition, the measure is the difference between their actual value and what they would have been worth in good condition; to this may be added, in appropriate cases, the expenses of transhipment, reconditioning, warehousing, survey and sale. Where both vessels are in fault the owner of the cargo may sue either or both, or as was said by Justice Clifford in the Atlas, 3 Otto 302: Parties without fault such as shippers and consignees, bear no part of the loss in collision suits, and are entitled to full compensation for the damage which they suffer from the wrongdoers, and they may pursue their remedy _in personam_, either at common law or in the admiralty, against the wrongdoers or any one or more of them, whether they elect to proceed at law or in the admiralty courts. * * * * * Innocence entitled the loser to full compensation from the wrongdoer, and it is a good defense against all claims from those who have lost. Individual fault renders the party liable to the innocent loser, and is a complete answer to any claim made by the faulty party, except in case where there is mutual fault, in which case the rule is that the combined amount of the loss shall be equally apportioned between the offending vessels. In the foregoing case the owner of a cargo, lost in a collision in which both vessels were held to be at fault, libeled one of them and decreed his entire damage against the vessel which he sued. A vessel so compelled to pay the whole damage to cargo, in a case of mutual fault, is entitled to recover from the other vessel a contribution so as to equalize the loss as between the two ships. But this important qualification of the foregoing rule must be observed: That a shipper of cargo who is prevented from recovering against the vessel on which his cargo was shipped, as for instance by his contract of affreightment, or by some rule of law, as, for example (in an applicable case), the Harter Act, cannot hold the other vessel for the entire damage but only for one-half thereof. In the case of the Niagara, 77 Fed. 329, the steamer _Niagara_ was in collision with the bark _Hales_, the Court held: Both vessels being, therefore, in fault, the owners of the bark are entitled to recover against the _Niagara_ one-half their damages for the loss of the bark, to be applied so far as may be legally applicable and necessary in payment of the value of one-half of the cargo claimed under the other libel; and the _Niagara_ is liable for any deficiency to make good the whole value of the cargo owners; as well as for one-half the claims for personal effects. * * * * * If the Harter Act, however, were applicable, it would not affect the liability of the _Niagara_ in the present case; but only the application, as between the shipowner and the owners of the cargo, of the sum the _Niagara_ must pay. The _Niagara_ suffered but little damage; while the loss of the _Hales_, and of the cargo, are estimated to have been respectively about $16,000 and $26,000. In applying the Harter Act to cases of division of damages for mutual fault, I have heretofore held (1) that it was not the intent of Congress to relieve the carrier vessel at the expense of the other vessel in fault, by increasing the latter's liability, but that the intent was that the cargo should bear the consequences of the carrier's neglect in navigation; (2) that the relief given by the Act to the carrier vessel from responsibility for damage to her cargo, could not be nullified indirectly by a charge against her in the shape of an offset in favor of the other vessel in fault on account of that same cargo; (3) that the extent of the latter vessel's previous liability on the particular facts of each case was not to be diminished by the Harter Act from what she would previously have been bound to pay, except as respects her own cargo; and (4) that the result, therefore, must be that the cargo owner of each ship must stand charged under the Harter Act with so much of the cargo damage as the carrier ship is relieved from by that Act, whenever and so far as that is necessary to avoid any increase in the previous liability of the other ship. The Viola, 60 Fed. 296. Upon any complication, the first inquiry is, to what amount was each vessel, or her owner, liable under the previous law, upon the particular facts of the case? Under the Harter Act, if it is applicable, that liability cannot be exceeded, and it will remain the same, if necessary to make good the damage to the cargo of the other ship. In getting at the amount which either vessel is to pay under the Harter Act, her own cargo is to be treated as nonexistent; because where the Harter Act is operative the carrier vessel (A) is not liable for that item of damage. But the other ship (B) is bound to pay that item of cargo loss, as well as one-half the damage to the two ships, up to the limit previously ascertained, as above stated, if the remaining value of the ship (B) and her pending freight are sufficient for that purpose. Where this value is not sufficient, and the damage to the first vessel (A) is greater than the damage to the other ship (B), two conflicting claims arise, one in favor of the ship (A), for the purpose of equalizing the loss on the two vessels, and another claim for the loss on A's cargo. As those claims arise at the same time, and are of equal merit, the remaining value of the ship (B) and her pending freight should be apportioned pro rata, according to the amount of the two claims. In the present case the _Hales'_ loss was about $16,000; that of her cargo about $26,000. The loss on the _Niagara_ was slight, and of her cargo, nothing. Before the Harter Act, the _Niagara_, upon the above figures, would have been obliged to pay $8,000 for half the loss of the _Hales_ (which would, however, have been applied upon the latter's liability to her cargo); $13,000 for half the cargo loss, and $5,000 in addition, on account of the total loss of the _Hales_, in order fully to indemnify the cargo, making $26,000 in all (The Atlas, 93 U. S. 302). Under the Harter Act, the _Hales_ being relieved from any liability to her cargo for this damage, her owners would retain the $8,000 for their own use, instead of applying it on the cargo as before; but the _Niagara's_ liability is not to be thereby increased or diminished. This item of loss is transferred by the Harter Act to the cargo. The _Niagara_ must pay, therefore, as before, $13,000, and the $5,000 (that is, $18,000), on account of the cargo loss, and the cargo-owner loses the $8,000, which his carrier under the Harter Act is entitled to retain. It is immaterial, therefore, to the _Niagara_ whether the Harter Act is applicable or not. It affects only the distribution of the $26,000. =7. Damage to Crew and Passengers.=--Personal belongings of crew and passengers may be lost or injured in the collision and the measure of damages is the same as in the case of the cargo. If totally lost, the value at the time of the collision governs not what the articles originally cost when new. If only injured, then the difference between sound and damaged condition controls. Interest follows as in other cases. Personal injuries and loss of life are also included in collision damage. The measure here is the same as in similar matters on land. =8. Contribution.=--The 59th Rule in Admiralty provides that the claimant of any vessel proceeded against, or any respondent proceeded against _in personam_ may bring in a petition alleging fault in any other vessel contributing to the collision, and praying that such other vessel be made a party to the suit. The other parties to the suit are to answer the petition and the vessel or party newly brought in shall answer the libel. This brings in both vessels, provided the vessel so brought in is within the jurisdiction of the court and can be reached by its process, and makes it possible for the court to enforce appropriate contribution of damage by the parties in fault. Since we have already seen that, in a case in which both vessels are in court in the first place, the court will decree contribution, there remains only the case in which a claimant of lost cargo has brought suit against one vessel or her owner, and the other vessel cannot be reached by process of the court. Suppose that in such a case the cargo-owner gets a decree against the vessel or party defendant and for his full damage, can the vessel or the party thus mulcted maintain an independent suit for contribution against the other offending ship? It can only be said that on this point the authorities are in direct conflict; however, in the modern case of Lehigh Valley R. R. Co. _v._ Cornell Steamboat Co., 218 U. S. 264, it seems to be clearly inferable that in the opinion of the Supreme Court of the United States such an action is maintainable. What has been said with respect to damage suffered by owners of lost cargo, applies equally to damages for personal injuries sustained as the result of a collision. =9. Division of Damages.=--Where both, or several, ships are in fault, the maritime law apportions the damage between them. When one of two vessels has suffered more than the other the decree is against the one least injured for one-half of the difference in their respective losses. In the North Star, 106 U. S. 17, where both vessels were adjudged in fault for a collision and one, the _Ellis Warley_, became a total loss, the owners of the _Warley_ advanced the ingenious argument that, inasmuch as their vessel had been entirely lost, they were entitled to limit their liability and, by so doing, recover one-half their entire damage from the _North Star_, without any deduction for the damage suffered by her, notwithstanding the rule of division of damage in such cases. It will be noticed that the vessel claiming the right to limit liability, being the greater sufferer, would, in no event, have been required to pay anything to the other, and that the _North Star_, which had to do the paying, did not claim any right to limit liability. In rejecting this argument and holding that the time to apply the limitation-of-liability rule was after the amount of the liability had been ascertained, when the party decreed to pay might claim the benefit of the rule if entitled to it, the Court entered upon an instructive review of the entire history of the division of damage, and found that the theory is not that the owner of the one vessel is liable to the owner of the other for one-half of the damage sustained by the latter, and _vice versa_, that the owners of the latter are liable to those of the former for one-half of the damage sustained by her; but that the joint damage is equally divided between the parties; that it is a case of average and is to be computed by subtracting the lesser loss from the greater, dividing the difference by two and directing the vessel sustaining the smaller loss to pay the other the amount so found. Where both vessels are in fault and only one is injured, the uninjured vessel must pay to the other one-half of the amount of her damage without deduction. The cargo, being innocent, may sue both vessels or either, but if the result is that one is so compelled to pay more than its proper proportion of the total, a suit for contribution under the conditions set forth in the preceding section will lie in order to accomplish an ultimate equality. The admiralty does not recognize the common-law rule that contributory negligence prevents recovery and the same division or apportionment of damage is applied to cases of personal injury in collision as otherwise. =10. Lien.=--The party injured by collision acquires a maritime lien of high rank upon the guilty vessel which attaches at the moment the damage is done and inheres, as a property right, until it is satisfied, bonded, or extinguished by an admiralty sale, or abandoned by his own laches, or delay in enforcement. It attaches to the hull of the ship and also to her engines, boilers, boats, apparel and freight pending but not to her cargo and, equally, whether the offending ship was in actual contact with the other or whether she caused the collision between other ships by her own negligent navigation, as by suction or displacement waves. The lien will follow the ship into the hands of an innocent purchaser for value unless proceedings to enforce it have been unreasonably delayed or other circumstances render its enforcement inequitable. It has priority over almost all other maritime liens, only subsequent salvage and wages being ordinarily preferred. Since the enactment of the act of March 30, 1920, a lien arises out of the loss of life in a collision, as in the case of personal injuries. =11. Limitation of Liability.=--Where the owner of the offending vessel is not personally at fault for the disaster, his liability is limited to the value of his ship and freight pending, as of immediately after the disaster. If the ship is lost, his liability disappears with her. He is not, under American law, obliged to account for the insurance because that is not a part of the ship but the result of an independent, collateral contract. =12. Remedies.=--The most usual remedy employed in cases of collision is that afforded by the Limited Liability Law.[22] This gives the shipowner the right to call all damage claimants into one court and dispose of everything in a single proceeding, thus eliminating a multiplicity of suits in different jurisdictions. The question of fault may be litigated in this proceeding and it may be commenced either before or after the commencement of other actions. Injured parties, if they choose, may sue at common law as in other cases of negligence. The more effective remedies, however, are in admiralty. They may there proceed directly against the ship, or the ship and master together, or against the master or the owner alone, personally. The master of the injured ship may bring the suit in his own name on behalf of all concerned, including the cargo. Underwriters who have paid for losses caused by collision become subrogated to the rights of their assured and may sue accordingly. =13. Evidence.=--The party alleging negligence must bear the burden of proof in establishing it. He must show fault on the part of the other vessel as well as due care on his own. By act of Congress, approved September 4, 1890 (26 St. at L. 425), the so-called "Stand-by" act, failure of a vessel to stay by another vessel with which she has been in collision until there is no further need of assistance, raises the presumption that she is in fault for the collision. This presumption, however, is not conclusive, but may be rebutted by testimony. Cases of this kind appear to be inconsistent with the doctrine laid down in some of the earlier decisions and represent a modern tendency to extend the maritime jurisdiction. Sometimes the conceded facts establish a presumption of fault, as where a collision occurs with a ship properly at anchor or between steam and sail. This will usually appear on the pleadings. The facts at issue are shown by the testimony of those who saw or participated in the disaster. These generally come from the officers and crews of the vessels involved and every man ought to be accounted for. Extreme contradictions are to be expected in the evidence as there is a natural tendency on the part of sailors and passengers to be so loyal to their own ship as to impute every fault to the one which runs into her. The courts seldom attempt to reconcile conflicting testimony but frequently decide on the conceded facts and probabilities. The evidence of disinterested parties is of much weight. REFERENCES FOR GENERAL READING _Law of Marine Collisions_, H. R. Spencer. Chicago, 1895; Callaghan & Co. _Collisions at Sea_, R. G. Marsden. London, 1904; Stevens and Sons, Ltd. _Damages in Maritime Collisions_, E. S. Roscoe. London, 1909; Butterworth & Co. _Admiralty Law_, 8 Columbia Law Review (March, 1908). Scotia, 14 Wall. 170. Belgenland, 114 U. S. 355. [20] In Seabrook _v._ Raft, 40 Fed. 596, where there was a collision between a raft and a dredge, moored by six anchors, the jurisdiction was sustained. [21] In modern practice, insurance is nearly always carried upon a vessel and cargo. The modern authorities on the subject of constructive or total loss and abandonment, as well as the items of damage recoverable on account of vessel and cargo are, in nearly every instance, cases arising out of policies of marine insurance. This subject is treated at large in another volume of this series. [22] See Chapter VIII, _supra_. CHAPTER XII TOWAGE AND PILOTAGE =1. Definition.=--Towage is the service rendered by one vessel to another in moving her from point to point under ordinary circumstances of navigation. Pilotage is the navigation of a vessel by one having special knowledge of the waters, as pilot. =2. Towage Service.=--This is rendered by the tug to the tow. Tugs are usually specially built and equipped for the business and supply a very important aid to commerce and navigation. The service is generally by contract or informal agreement and includes both the short work in shifting vessels in port and the long voyage and season contracts along the coast and in the canals and Great Lakes. It may be performed in various ways. Sometimes the tug is lashed to the tow and supplies motive power only and sometimes she pulls several vessels behind her upon hawsers from each to the other of great length. The legal relations, however, are usually the same. The tug should be supplied with hawsers of sufficient strength to hold the tow in any weather which may be reasonably anticipated, unless the tow itself supplies them. Where the tug is given full control, it should arrange the order of towage and the distances apart. It should also arrange, by an understood code of signals, for shortening, lengthening, or casting off the lines, as exigencies of navigation may require. Vessels of heavy draft should be placed behind those of lighter draft. The speed of the tug should be such as is reasonably safe for the condition of the tow and sudden jerks and turns must be avoided. Disaster does not necessarily absolve the contract of towage. On the contrary, it is quite settled that it is the duty of the tug to continue to do all in its power to get its tow out of situations of difficulty and danger, short, of course, of sacrificing its own safety. It is not relieved from its obligation because unexpected difficulties occur and may not lightly abandon the tow to its fate. Extraordinary services under a towage contract may secure a salvage reward, but too great haste in abandoning it will impose a corresponding liability. =3. Compensation.=--The rate of compensation is determined by express contract, or in the absence of such contract by the customary rates prevailing in the port or locality, and in the absence of contract or custom by the fair value of the service rendered. Unless the service performed amounts to a case of salvage the compensation will not be determined by the rules governing salvage. Towage services are presumptively a maritime lien on the tow, and where the owners of the tow contend that the service was performed upon their personal credit, instead of upon that of the vessel, they must affirmatively establish that fact (Erastina, 50 Fed. 126). The lien for towage and pilotage is in general superior to all liens except those for salvage and seamen's wages and "preferred mortgages" given on American ships pursuant to the Merchant Marine Act of 1920 (see Appendix). Thus the Court in the Mystic, 30 Fed. 73, said: I am of the opinion that this claim of towage is and should be considered a maritime lien upon the schooner. It is a conceded fact in this case (and if it were not, probably the court would take notice of the usual course of maritime business in this port) that all vessels entering and leaving the port of Chicago are required by the ordinances of this city to do so in the tow of a tug; and the usual course of business is for the tug to take vessels in tow at some point outside of the entrance to the harbor, and tow them to the dock to which they are consigned. This class of service takes the place of the labor of the crew, and I can see no reason why it is not to be treated as next in rank, if not in the same order of priority, as seamen's wages. It is probably, however, more analogous in the nature of the service to pilotage, as the use of the tug dispenses with the necessity of a pilot to bring the vessel into the harbor and take her to her dock; and by such analogy ought undoubtedly to be subordinate to the seamen's wages. The court must take notice of the fact, that by the introduction of steam even sailing vessels have become largely dependent upon tugs and towing vessels to take them into and out of harbors; and this is specially necessary in a harbor like that of this city where there are long devious channels which can only be threaded by the aid of a tug, or the almost impracticable means of warping. =4. Duty of Tug.=--The tug is not a carrier as to the tow but only a bailee. This means that it is not liable for accidents except as it is proved to have been negligent or wanting in ordinary care. While the relation depends on contract, the obligations are mostly those implied by law from the relations of the parties although they may vary them as they please by express agreement. In general, the tug engages to make the trip or voyage without delay or deviation or undue peril; to be sufficiently equipped and manned and in all respects seaworthy; to exercise reasonable diligence and the ordinary skill of the profession; in case of storm or danger, to protect the tow, by seeking a port of refuge, or slowing, stopping, sounding, and otherwise exercising due care, until the occasion subsides. She is, however, only bound to do what is consistent with her own safety and may, therefore, abandon the tow when circumstances of great peril require it. The tug is bound to see that the tow is properly made up for the proposed voyage; to know the sailing qualities of the vessels in charge and the character of the waters, currents, harbors and shoals before them. If the tow furnishes its own hawsers or towing lines, it must see to it that they are sufficient for all the purposes of the voyage and that they are properly fastened on board. There is an implied representation of seaworthiness in offering a vessel to be towed and the tug has the right to assume that the ship is sufficiently staunch and equipped for the voyage proposed. Thus in the case of the Syracuse, 18 Fed. 828, it was said that: Justice requires that the continued running of old boats should be closely scrutinized and their owners should not be suffered to conceal their infirm condition, and, when accidents happen, get them repaired or recover as for a total loss, at the expense of others. The owner is bound to give notice of any infirmity about his boat. If she be not staunch and strong; and where this is not done he must be held jointly or solely responsible for such injuries as the present; according to the other circumstances of the case. The tow must not be overloaded or improperly steered. The obligations of the contract are largely mutual and correlative for generally the tow is largely under the control of her own company and the tug is furnishing motive power and guidance only. Each party to the contract is bound to do its part towards completing it and each vessel involved must use proper skill and diligence in performing its part. The tow is not insured against damage because the tug has taken it in charge. It must not create unnecessary risk, or increase any perils by neglect or mismanagement. The obligations of good seamanship remain on the tow and it is bound to be vigilant and prompt in meeting them. In illustration of these principles one or two cases may be noticed: In the Marie Palmer, 191 Fed. 79, the four-masted schooner _Marie_ _Palmer_, bound from a northern port to Savannah with cargo, encountered heavy weather off Cape Hatteras and put into a North Carolina port, where it was found by a board of survey that she was leaking but could proceed under tow, and the tug _Edgar F. Coney_ was employed to take her to Savannah for an agreed price. The vessels started on a clear day with a light breeze and had proceeded 85 miles when, shortly after dark, the schooner stranded on Frying Pan Shoals and became a total loss. The schooner, shortly prior to stranding, asked the tug if they were not too far in shore, but was answered in the negative. The navigator mistook the Cape Fear light for a gas buoy shown on the chart, although the two were entirely different in height and character, and were fourteen miles apart. There was a deviation in the tug's compass and the card for its correction was not at hand. The master of the schooner libeled the tug. The Court said: Now it is true that under a contract of towage, the owner of the vessel towing does not insure against marine perils. It is true, however, that he must obey the law, and, in the protection of the life and property intrusted to his sole control, he must exercise that degree of caution and skill which navigators of prudence usually employ in such service. He is held bound to know the waters, the channels, well-defined currents, and such well-defined shoals as have been for a sufficient length of time marked by the government, and all other dangers known generally to men experienced in navigation; and he is bound to exercise such skill and knowledge for the protection of her tow.... It is true that, under ordinary circumstances, damage to a vessel while being towed raises no presumption of fault on the part of the vessel towing; but, where the evidence preponderates to show such negligence, it may be found to exist, although no presumption is allowed in favor of the tow. It has, however, been held by the Supreme Court of the United States in the Webb, 14 Wall. 406, that under certain circumstances, if a ship is towed upon a shoal, that the fact of stranding at such place would, in the absence of explanation "be almost conclusive evidence of unskillfulness or carelessness in the navigation of the tug. The place where the injury occurred would be considered in connection with the injury itself, and together they would very satisfactorily show a breach of the contract, if no excuse were given. At least they would be sufficient to cast upon the claimants of the tug the burden of establishing some excuse for the deviation from the usual and proper course." * * * * * In the case now under consideration the compass of the tug was inaccurate. The card showing the deviation was not kept before the helmsman. The course was plainly marked and widely known. The tug and tow starting early in the morning proceeded, until the stranding, but 85 miles only. Frying Pan Shoals is not less widely known than any other on the coast. The captain of the tug, Myers, laid the course, as he testifies, for the buoy. He might have passed it in safety anywhere within a mile to the landward, and, in a practical sense, anywhere to the seaward. He wrecked his tow 4-1/2 miles to the landward of the buoy, and 13-1/2 miles from the Cape Fear Light, which he may have mistaken for the buoy. There was no sudden exigency to divert the judgment. There was abounding opportunity to take the bearings of the lights, and to make soundings. The stranding itself occurred shortly after dark only, in the evening of a clear day, and shortly after the master of the tug had received from the master of the tow urgent and explicit warning of the danger. If under these conditions, as we find them to exist, there is no liability on the tug, which in obedience to the official finding of the surveyors was voluntarily towing the schooner to her port of destination for the agreed-upon compensation, a case which would warrant a finding of liability for similar service or any default seems wholly inconceivable. In the case of the tug Quickstep, 9 Wall. 665, the owner of the canal boat _Citizen_ filed a libel _in rem_ against the tug, alleging that the tug attempted to tow too many loaded boats and in consequence of which one of the boats broke loose, and the tug while backing in an attempt to pick her up collided with and sank the _Citizen_. The inquiry is: Who is to blame for this? Clearly not the _Citizen_, for it does not appear that her conduct in any way contributed to the accident. If the tug, in constructing the tow, used the lines furnished by the different boats, yet as each boat was independent of the other, no responsibility can attach to either for the breaking of the line, which she did not provide, and had nothing to do with making fast. In this case neither the bridle line nor the line that first parted were supplied by the _Citizen_, and she ought not to suffer for their insufficiency. It is well settled that canal-boats and barges in tow are considered as being under the control of the tug, and the latter is liable for this collision, unless she can show it was not occasioned by her fault. It was the duty of the tug, as the captains of the canal-boats had no voice in making up the tow, to see that it was properly constructed, and that the lines were sufficient and securely fastened. This was an equal duty, whether she furnished the lines to the boats, or the boats to her. In the nature of the employment, her officers could tell better than the men on the boats what sort of a line was required to secure the boats together, and to keep them in their positions. If she failed in this duty she was guilty of a maritime fault. The parting of the line connecting the boat in the rear on the port side with the fleet, was the commencement of the difficulty that led to this accident. In the effort to recover this boat, the consequences followed which produced the collision. If it was good seamanship on the part of the captain of the tug to back in such an emergency, he was required, before undertaking it, at least to know that his bridle line would hold. And if the sea was in the condition the captain of the tug says it was, it was bad management to back at all. Whether this be so or not, he was bound, in executing a maneuver to recover the detached boat, to look to it that no other boat in the fleet suffered in consequence of it. A tug is not required to subject herself to damage in order to protect her tow. An illustration of this is found in the case of the Mosher, 17 Fed. Cas. No. 9874, from which the following is quoted: The schooner _Nicaragua_, owned by libellants, on the 6th of August having encountered a heavy wind and high sea, which continued during the day, came to anchor, and shortly after, the tug _Mosher_ took her in tow. The schooner furnished the tow line. The first broke; a second bore the strain. The vessel in the act of being towed into the harbor was stranded and ultimately lost. Is the tug responsible for this loss? It is charged that the accident happened through the negligence and want of care of the officers of the tug, and that, at any rate, the disaster would not have been so ruinous, if these officers had used proper efforts to relieve the _Nicaragua_. The first question is, what degree of diligence and skill was required of the tug? The rule is well settled that reasonable diligence and ordinary skill is the measure of the tug's duty. The tug did not engage to insure the safety of the tow, nor for the use of the highest nautical skill. I think Judge Drummond stated the rule fairly, that the tug is bound to know the ordinary and proper channel into the harbor and to exercise reasonable skill under the circumstances, in towing the vessel. * * * * * Like the district judge, I do not wish to relax the need of caution of tugs in towing vessels nor establish harsh rules to make them insurers of property. * * * * * In what respect did the _Mosher_ show less diligence and skill than required? The schooner having taken the chances of entering the harbor in a storm, the tug is not to be held responsible, in the absence of proof of negligence, if the schooner touched some ridge of sand. It is urged that she went aground on the old sand-bar. Although satisfied that she was ultimately wrecked there, I am not satisfied she first struck there. The winds and waves drove her south, and the probability is that her first position was changed. But the tug is blamed for not using more effort than she did to get the schooner off the bar; in other words, is charged with fault in abandoning the schooner too soon. It is hard to get at the truth for the witnesses on each vessel differ materially in their account of what occurred. At the argument it did seem to me that the tug left the schooner to her fate sooner than she ought to have done, but since reading the testimony, I cannot say that she did not employ all the means practicable and consistent with her own safety. The captain of the tug was not obliged to stay by the schooner if in good faith he believed he would endanger his own vessel. On both points he is supported by the testimony. I think the decree dismissing the libel should be affirmed. =5. Duty of Tow.=--The vessels in tow must be properly manned and equipped and carefully follow the tug. They must be vigilant to observe all orders and signals. They must be ready, in case of emergencies, to cast loose from the tug and each other, if thereby collision or stranding may be avoided. In the Marie Palmer, 191 Fed. 79, above cited, the tug defended the suit brought by the schooner on the ground that the schooner was unseaworthy when taken in tow. The unseaworthy condition of a tow is a good defense to such a suit if that fact be concealed from the tug, but not where the condition of the tow is known to the tug. Equally ineffective is the plea that the master of the tug did not know the extremities to which the schooner had been reduced before he undertook the towage service. The _Palmer_ was found storm bound, at anchor, in Lookout Bight. Had she been entirely seaworthy under her sail power, the contract to tow her would have been superfluous. These facts were known to the master of the tug. But, if this were not sufficient, that officer must have taken notice of the vital fact that her storm tossed condition had been passed upon by an official board of survey, and that body, after careful examination, had found that she might proceed with her voyage under tow. It was optional with the captain of the tow boat to accept that finding, and take the tow. Certainly it put him upon notice of inquiry, and he did not hesitate to take the tow as in the condition in which the board of survey found her. =6. Negligence.=--The tug is liable for negligence only, apart from the terms of any special contract, and then only for such negligence as is the proximate cause of the loss. Negligence is the failure to observe the rules of navigation or to employ the requisite degree of care and skill of competent mariners in like situations. The burden of proving negligence usually rests upon the party charging it but towage sufficiently resembles the contract of carriage as frequently to present cases in which the mere happening of an accident to the tow creates a presumption of negligence on the part of the tug. Thus the pleadings themselves may require the tug to explain the disaster and prove that she was not at fault. This presumption has been applied where the tow is stranded off its proper course in calm weather; or where the tug has grounded the tow while proceeding through a fog at full speed without soundings; or where the tow has been brought into collision with an anchored vessel; or where the accident occurs in a customary channel; or where the tug's steering gear and equipment prove insufficient; or where the tow strikes a known obstruction to navigation. The case of the _Marie Palmer_, heretofore cited, is an example of negligence on the part of the tug. Where, from the negligent operation of a tug, damage is inflicted by a tow, although the tug herself does no damage, a maritime lien for tort arises against the tug and not against the tow. In the Clara Clarita, 23 Wall. 1, the tug engaged and undertook to tow a burning vessel from her berth to a point where it was intended to beach her. While in tow the flames burst through the deck of the burning vessel and severed the hawser by which she was attached to the tug, causing her to drift upon and set fire to the libellant's schooner. Although the tug was far away when the damage was done, the court held her to be in fault because under the circumstances the burning of the hawser ought to have been foreseen and the owners of the damaged schooner were held to be entitled to a maritime lien upon the tug for the damage suffered. It was also held that the tug alone and not the owners of the burned tow should respond in damages. A tug is held not to be the agent of her tow but to occupy the position of an independent contractor. The Court said: By employing a tug to transport their vessel from one place to another the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the services, as they neither appoint the master of the tug nor employ the crew, nor can they displace either one or the other. Their contract for the service, even though it was negotiated with the master of the tug, is, in legal contemplation, made with the owners of the vessel employed; and the master of the tug continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation and management. On the other hand cases may arise in which the tow alone and not the tug is liable for injury to a third vessel or person. Thus in Albina Ferry Co. _v._ Imperial and S. G. Reed, 38 Fed. 614, the tug _S. G. Reed_ had in tow the ship _Imperial_. The ferry boat _Veto No. 2_ was operated on a wire cable. The _Imperial_ struck the cable, causing the ferry boat to sustain some damage. The tug was employed by the pilot of the _Imperial_ for the purpose of towing the vessel and at the time of the collision was in the control and service of the ship. There was no evidence of any fault on the part of the tug or of any one employed on her. The Court said: Under these circumstances the steamboat (i.e., tug) and the ship constitute but one vessel and that vessel was the ship. The tug was the mere servant of the tow, and both were under the control and direction of the pilot in charge of the latter. Admitting for a moment that a wrong has been committed, the owners of the _Imperial_, through their agent, the pilot in charge, are the wrongdoers, and their vessel is alone liable therefor. The owner of the _Reed_ did not participate in the supposed wrong, neither by itself nor by its servants. As well say that the wrong of a person who recklessly rides another down in a public thoroughfare is the wrong of the liveryman from whom he hired the horse. It is not denied that there may be and have been cases in which both tug and tow are liable for the damage sustained by a collision. But in such case both participate in the management of the vessel, and the negligence of misconduct causing the same. A case in which both tug and tow were held liable is that of the Civilta and the steam tug Restless, 13 Otto 699. In this case the tow had on board a pilot and the tug was subject to his orders. The libellant's schooner was struck by the hawser, then by the tow. The court said that the tow and tug were, in law, one vessel, and the question was, which one? It was held: The tug furnished the motive power for herself and the ship. Both vessels were under the general orders of the pilot on the ship, but it is expressly found as a fact that the tug actually received no orders from him. Being on the ship, which was two hundred seventy feet astern of the tug, it is not to be presumed that he was to do more than direct the general course to be taken by the ship in getting to her place of destination. The details of the immediate navigation of the tug, with reference to approaching vessels, must necessarily have been left to a great extent to those on board of her. She was where she would ordinarily see an object ahead before those on the ship could, and having all the motive power of the combined vessels under her own control, she was in a situation to act promptly and do what was required under the circumstances. * * * * * We do not entertain a doubt that, situated as the tug was, in the night, so far away from the ship, it was her duty to do what was required by the law of a vessel under steam, to keep herself and the ship out of the way of an approaching vessel, particularly if the pilot of the ship did not assume actual control for the time being of the navigation of the two vessels. Such being the case, we think it clear both vessels were in fault. A decree was accordingly given against both the ship and the tug and the damage apportioned one-half to each with the provision that if either of the vessels should prove insufficient to pay its share the residue might be collected from the other. =7. Liability for Damage.=--A. _As Between Tug and Tow._--If the wrongful act or breach of contract of either tug or tow occasions damage to the other, liability will follow and usually a maritime lien. The owners of the tug have a lien upon the tow for the price of the towage and the owners of the tow and its cargo have a lien upon the tug for failure to perform the contract or damages sustained through negligence. An example is found in the Cayuga, 16 Wall. 177. There the tug _Cayuga_ undertook a tow of thirty canal boats and barges from Albany to New York. The tow was faultily made up by the tug, libellant's canal boat being upwards of 1,000 feet astern of her. By reason of this faulty make-up and of the method of navigation adopted by the tug, libellant's canal boat was twice brought into collision with obstacles in the river, the first time with a lighthouse and the second with a submerged rock. The result of the second collision was the loss of the boat. The tug defended on the ground that the canal boat was unseaworthy and that her captain was negligent in cutting her loose from the tow immediately after the second collision. Even where a contract of towage specifically provides that the tow is being conveyed at her own risk, the tug will be liable in admiralty if through the tug's negligence the tow is injured. The contract will not avail as a defense against negligence (The Syracuse, 12 Wall. 167). In the case of the Wm. H. Webb, 14 Wall. 406, the owner of the steamship _Shooting Star_ brought a libel _in rem_ against the tug _Wm. H. Webb_ for breach of contract to tow the _Shooting Star_ from Portsmouth to New York, charging negligence and mismanagement in the towage, whereby the tow was grounded on Tuckernuck Shoal, which was more than three miles out of the proper course. The court held that the tug was negligent and, therefore, liable. Mr. Justice Strong said: It must be conceded that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence or unskillfulness to his injury in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. The contract requires no more than that he who undertakes to tow shall carry out his undertaking with that degree of caution and skill which prudent navigators usually employ in similar services. The action for negligent performance of the towage contract may be either against the tug or its owner by the owners or underwriters of the injured property. The damages are those which naturally follow the breach; if the tow and cargo are totally lost, the market value, at the time and place of the loss, with interest, will be allowed as in cases of loss by collision; if the loss is partial then the expenses of repairs, with compensation for loss of use, or demurrage for the time which the work of rescue and repair occupies. Where the tow is old and unseaworthy, the admiralty sometimes apportions the damages. Where both tug and tow are at fault the damages will be divided between them according to the usual admiralty rule[23] (see the Civilta and the Restless, 13 Otto 699, _supra_). B. _To Third Parties._--Where a third party is damaged through the fault of a tug or the vessel which she has in tow, the party damaged has a right of action against the author of the injury. It is often said that the tug and her tow constitute a single entity. This is true to the extent that where through the negligent operation of the tug damage is done to a third party by one of the vessels in tow, the responsibility rests upon the tug, but responsibility in such cases will not ordinarily attach to the vessel in tow. The tow may be liable in such a case, on the theory that the tug is her agent, but if the tug occupies the status of an independent contractor no liability rests upon the tow. We have seen in the Clara Clarita, 23 Wall. 1, cited in § 5, _supra_, a case in which a tug was held liable for damage by the tow and in which the tow was held to be free from liability because the tug was not her agent. In the case of Liverpool &c. Navigation Co. _v._ Brooklyn Eastern Dist. Terminal, decided December 8, 1919 (U. S. Supreme Court Advance Sheets, 85), a car float was lashed to the side of the steam tug _Intrepid_, and through the negligent operation of the tug the float was driven into collision with the S. S. _Vauban_, the tug, herself, not coming into collision. It happened that the car float and tug belonged to the same owner. It was held that the responsibility was that of the tug alone; that she might limit her liability to her own value; that the float belonged to the same owner made no difference, and the float accordingly escaped liability. Mr. Justice Holmes said: The car float was the vessel that came into contact with the _Vauban_, but as it was a passive instrument in the hands of the _Intrepid_, that fact does not affect the question of responsibility (citing numerous cases). These cases show that for the purposes of liability the passive instrument of the harm does not become one with the actively responsible vessel by being attached to it. If this were a proceeding _in rem_ it may be assumed that the car float and disabled tug would escape, and none the less that they were lashed to the _Intrepid_, and so were more helplessly under its control than in the ordinary case of a tow. It is said, however, that when you come to limiting liability, the foregoing authorities are not controlling,--that the object of the statute is "to limit the liability of vessel owners to their interest in the _adventure_," and that the same reason that requires the surrender of boats and apparel requires the surrender of the other instrumentalities by means of which the tug was rendering the services for which it was paid. It can make no difference, it is argued, whether the cargo is carried in the hold of the tug or is towed in another vessel. But that is the question, and it is not answered by putting it. The respondent answers the argument with the suggestion that, if sound, it applies a different rule in actions _in personam_ from that which, as we have said, governs suits _in rem_. Without dwelling upon that, we are of opinion that the statute does not warrant the distinction for which the petitioner contends. In the case of Sturgis _v._ Boyer, 24 How. 110, the ship _Wisconsin_, which was being towed by the tug _Hector_, collided with the lighter _Republic_ in New York harbor. The owners of the lighter libeled both the tug and the tow. The owner of the tug filed an answer, setting up that the tug was merely the motive-power to move the ship to the pier, that the tug and her crew were subject to and obeyed the orders of the master and other officers in charge of the ship, and prayed that in case the libellants should recover any sum against the ship and tug, that he, the owner of the tug, might have decree over against the ship. The owners of the ship admitted that she had a master and a full crew on board, but alleged that they were all under the direction and control of the master and officers of the tug. The Court was clearly of opinion that a case of negligence was made out by the owners of the lighter, and the only question in doubt was as to the relative responsibility of the tug and vessel in tow. Cases arise, undoubtedly, when both the tow and the tug are jointly liable for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined when the tow alone would be responsible; as when the tug is employed by the master or owners of the tow as the mere motive power to propel their vessels from one point to another, and both vessels are exclusively under the control, direction and management of the master and crew of the tow. Fault in that state of the case cannot be imputed to the tug, provided she was properly equipped and seaworthy for the business in which she was engaged; and if she was the property of third persons, her owners cannot be held responsible for the want of skill, negligence or mismanagement of the master and crew of the other vessel, for the reason that they are not the agents of the owners of the tug, and her owners in the case supposed do not sustain towards those entrusted with the navigation of the vessel the relation of the principal. But whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board, from one point to another, over waters where such accessory motive power is necessary or usually employed, she must be held responsible for the proper navigation of both vessels; and third persons suffering damage through the fault of those in charge of the vessels must, under such circumstances, look to the tug, her master or owners, for the recompense which they are entitled to claim for any injuries that vessels or cargo may receive by such means. Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow, on the ground that the motive power employed by them was in an unseaworthy condition, and the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it is not perceived that it can make any difference in that behalf, that a part, or even the whole of the officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel, properly manned and equipped for the enterprise, and from the nature of the undertaking, and the usual course of conducting it, the master and crew of the tow were not expected to participate in the navigation of the vessel, and were not guilty of any negligence or omission of duty by refraining from such participation. * * * * * Unless the owner and the person or persons in charge of the vessel in some way sustain towards each other the relation of principal and agent, the injured party cannot have his remedy against the colliding vessel. By employing a tug to transport their vessel from one point to another, the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug, or ship the crew; nor can they displace either one or the other. Their contract for the service, even though it was negotiated with the master, is, in legal contemplation, made with the owners of the vessel, and the master of the tug, notwithstanding the contract was negotiated with him, continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation. * * * * * Whether the party charged ought to be held liable, is made to depend, in all cases of this description, upon his relation to the wrongdoer. If the wrongful act was done by himself, or was occasioned by his negligence, of course he is liable, and he is equally so, if it was done by one towards whom he bore relation of principal; but liability ceases where the relation itself entirely ceases to exist, unless the wrongful act was performed or occasioned by the party charged. * * * * * Applying these principles to the present case, it is obvious what the result must be. Without repeating the testimony, it will be sufficient to say, that it clearly appears in this case that those in charge of the steam tug had the exclusive control, direction and management of both vessels, and there is not a word of proof in the record, either that the tug was not a suitable vessel to perform the service for which she was employed, or that any one belonging to the ship either participated in the navigation, or was guilty of any degree of negligence whatever in the premises. =8. Pilots.=--There are port and sea pilots, the latter being a name for those of her officers who navigate the ship at sea and the former meaning those who take the ship in and out of harbor. Port or coast pilots are a class by themselves, exercising an office of great importance, and usually regulated by law. This is the class referred to in U. S. Comp. St. 1916, § 7981, where it is enacted that "until further provision is made by Congress, all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for the purpose." The former class, or sea pilots, are dealt with by Congress in §§ 8204, 8205, 8206, 8207, 8208, etc., of the same volume. The several states may, therefore, regulate and license port pilots, that is, the class whose employment is to guide vessels in and out of their respective ports. They may make it a criminal offense for a pilot not duly qualified under their laws to take a vessel through their waters and make all requisite provisions in regard to qualifications, fees and licenses, so long as Congress refrains from further legislation on the subject. Most of the States on the seaboard have such statutes, different somewhat in detail but generally similar in effect. Ships are not absolutely bound to accept the services of such pilots but must pay their fees, in whole or in part, if services are tendered and declined. =9. Duties.=--The pilot is the servant of the owner, if voluntarily employed, otherwise not. Like other persons, he is answerable for any damage he may cause by negligence or default. Occupying a quasi-public position and the ship not being free to decline his services, it is his duty to render his services, when requested, to the best of his ability. If he refuses, he may be liable both civilly and criminally. The ancient sea-laws were stringent in this regard; the Laws of Oléron, for example, provide that if disaster is sustained by the ignorance of the pilot, he shall be obliged to make full satisfaction therefor, and, if he has not wherewith to make satisfaction, the master, or any one of the mariners or merchants may cut off his head and shall not be bound to answer for it. When a pilot takes charge of a vessel at sea, it is his duty to stay by her, unless discharged, until she reaches her destination or some place of safety. He is held to be able to anticipate the action of the wind and sea on boats in his charge. He must be thoroughly familiar with the topography and character of the waters for which he offers his services, and keep acquainted with all changes therein, both as to fixed and temporary landmarks and also as to the character of the bottom and presence of temporary obstructions therein. =10. Authority.=--While a pilot is on board he has absolute and exclusive authority in the absence of the master, and, probably, ranks the master when he is present. The authorities are not plain or satisfactory on this point, but there ought not to be any divided authority, particularly in such navigation as that for which the law requires the employment of a pilot. Unless the master retains, or reassumes, charge of the ship, the pilot has exclusive control and all are bound to obey his orders; he is an officer of the ship within the meaning of the statutes in regard to revolts and mutinies. But the master's authority is not annulled and it would be his duty to interfere in case of gross ignorance or palpable mistake on the part of the pilot. Thus, in the case of the China, 7 Wall. 53, where the pilot was employed under a compulsory pilot law, the Court said: It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it or not, according to his discretion. In Ralli _v._ Troop, 157 U. S. 386, Justice Gray said: To the pilot, therefore, temporarily belongs the whole conduct of the navigation of the ship, including the duty of determining her course and speed, and the time, place and manner of anchoring her. But the master still has the duty of seeing to the safety of the ship, and to the proper stowage of the cargo. For instance, the duty to keep a good lookout rests upon the master and crew. And it has been held by Dr. Lushington, in the English High Court of Admiralty, that, although a pilot is in charge, the trim of the ship is within the province of the master; as well as the duty, if two vessels entangled together, to cut away part of the rigging of his vessel, when necessary, in order to avoid a collision, or to lessen its effect, because the vessel, the judge said, "was not under orders of the pilot for this purpose; she was only under the pilot's directions for the purpose of navigation; and the master, in a case of this description, is not to wait for the pilot's directions, which would tend to create great confusion and delay." =11. Compensation.=--Compensation of pilots is largely regulated by local statutes and where their employment is compulsory, an offer of service, if declined, will nevertheless create a liability for full or partial fees against the vessel. If no fees are fixed by local law, the amount will be measured by what is customary or fair and reasonable. By the general maritime law, the pilot has a lien upon the ship for services rendered which is of high rank and priority (but is junior to a "preferred mortgage given on an American ship pursuant to the Merchant Marine Act of 1920", see Appendix). By acting as master, he may waive his lien as pilot in those cases where there is no lien for a master's services; and, correspondingly, one who is engaged and ships as a pilot of a vessel, whereon another stands as registered master, has a lien on the boat for his wages although he may be in entire charge of her navigation. =12. Negligence.=--The pilot is considered as the master for the time being and is answerable for any loss or injury caused by his want of skill. Such negligence may consist in lack of knowledge of the locality or failure to handle the ship with ordinary care. In general he must exercise the ordinary care and skill of his profession and failure so to do will render him liable for negligence. Harbor pilots, for example, are selected for their personal knowledge of the topography through which they take the ship and are deemed to know all its landmarks, channels, courses, constructions and local regulations. All these they must know and remember and observe. They must be expert in their business and each must furnish the same degree of care and skill commonly possessed by others in the same vocation. Thus pilots have been held liable for running a vessel against a pier freshly built into the channel; for failing to appreciate the significance of fixed lights; for towing in a gale; for hugging the shore on a dark night; they are answerable for the safety of the property in their charge and, in the event of damage or loss, will be released from liability only by showing that the causes were beyond their control, as by proving due care and skill or that the cause was an act of God or unavoidable emergency. Where a vessel in his charge is brought into collision and pays, either under a decree or through a reasonable settlement, the damages arising therefrom, the pilot may be held liable over to her owners for what they have been so compelled to pay. But members of pilots' associations are not jointly liable for the negligence of their members even if their earnings go into a common fund. A case illustrative of the duties and responsibilities of a pilot is that of Wilson _v._ Charleston Pilots' Association, 57 Fed. 227. The master of the schooner _Kate Aitken_, which was in Charleston harbor and was about to go to sea in tow of the tug _Relief_, applied to the Association for a pilot, and Mr. Bringloe was assigned to him. When the pilot boarded the schooner he asked the master whether he preferred the pilot to be on the tug or on the schooner. It was the custom to put the pilot on the tug, unless the master wished otherwise. The master expressed his preference that the pilot should be on the tug. The Court remarked in passing "that if disaster occur because the pilot is on the wrong boat he cannot excuse himself by reason of any preference of the master. He is employed because of his supposed knowledge of all that is necessary to take a vessel to sea." The pilot took his place on the tug and gave direction with regard to the position of the hawser. He took his position on the top of the house and constantly directed the movements of both tug and schooner. Nevertheless the schooner went aground. The Court said: Is the pilot responsible in damages for this accident? He was in control of the movements of the tug and of the tow. He was charged with the safety of the schooner, and of all that she carried, being bound to use due diligence and care and reasonable skill in the exercise of his important functions. He is answerable if the schooner suffered damage through his default, negligence, or want of skill, while her helm was under his control. He was not an insurer, and is only chargeable for negligence if he fail in due knowledge, care, or skill in avoiding obstructions known or which should have been known to him. If he used his best judgment and skill in avoiding known dangers, he cannot be held liable, although the result may show that his judgment was wrong. "It is settled that if the occupation be one requiring skill, the failure to exert that needful skill, either because it is not possessed or from inattention, is gross negligence." Curtis, J., in the New World _v._ King, 16 How. (U. S.) 469. An eminent text writer, whose name is authority, lays down the principle: "Every man who offers his services to another, and is employed, assumes to exercise in the employment such skill as he possesses with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offer his services, he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession. But no man, whether skilled or unskilled, undertakes that the task he assumes shall be performed successfully and without fault or error. He undertakes for good faith and integrity, but not for infallibility; and he is liable to his employer for negligence, bad faith, or dishonesty, but not for losses consequent on mere error of judgment." This is the law of this case. * * * * * There is a total absence of evidence tending to show want of knowledge, want of care, or want of skill, or bad faith, except the fact of the accident itself. This is not a case in which the fact of the accident is conclusive of the cause. If the grounding arose from the act of the pilot, it was by an error of judgment. The distinction between an error of judgment and negligence is not easily determined. It would seem, however, that if one assuming a responsibility as an expert possesses a knowledge of facts and circumstances connected with the duty he is about to perform, and if he brings to bear all his professional experience and skill, weighs these facts and circumstances, and decides upon a course of action which he faithfully attempts to carry out, the want of success, if due to such course of action, would be attributed to error of judgment, and not to negligence. But if he omits to inform himself as to facts and circumstances, or does not possess the knowledge, experience, or skill which he professes, then, if failure is caused thereby, this would be negligence. But it does not appear that the accident was occasioned by an error of judgment on the part of the pilot. =13. Liability of the Ship.=--The ship will be liable for damage done while in charge of a pilot unless there is a special exemption by local law. Where the law requires the ship to take a pilot on board and to surrender the navigation of the ship to him, the master and owners are exempt from responsibility for damages resulting from the mismanagement of the pilot. The reason is this: The laws which establish such compulsory pilotage are intended to secure, as far as possible, protection to life and property, by supplying a class of men better qualified than ordinary mariners to take charge of ships where navigation is attended with unusual difficulty on account of local conditions; the master, however well qualified, is compelled under penalty to abdicate his authority in favor of the pilot, and, if so, it is unjust that either he, or the owner, should be personally answerable for the errors of an official in whose selection he had no choice. The responsibility of an owner for the acts of his servant rests upon the presumption that the owner chooses the servant and gives him orders which he is bound to obey and that responsibility ceases when the law supplants the owner's choice. Therefore neither the master nor the owner can be successfully sued at common law, or personally in the admiralty, for damage done by a compulsory pilot. This was held on a full consideration of the American and English authorities by Justice Gray in Transportation Co. _v._ La Compagnie Générale Transatlantique, 182 U. S. 406, which is very instructive in this connection. The ship, however, is liable for such damage, although in charge of a compulsory pilot. The reason is this: By American admiralty law, the ship is treated as a personality for many purposes and, in whosesoever hands she may lawfully be, is treated as the actual wrongdoer, irrespective of any question of agency or employment. Thus, in this country, the ship by whose fault a collision has occurred may be sued directly, although in charge of a compulsory pilot at the time the disaster occurred. In England the rule is different and the ship is not liable if the owner could not be sued. The leading American case on this point is that of the China, 7 Wall. 53. The _China_, while under the control of a compulsory pilot, was in collision with the brig _Kentucky_, which was wholly free from blame. On a review of the English and American authorities the Court (Swayne, J.) held: The services of the pilot are as much for the benefit of the vessel and cargo as those of the captain and crew. His compensation comes from the same source as theirs. Like them he serves the owner and is paid by the owner. If there be any default on his part, the owner has the same remedies against him as against other delinquents on board. The difference between his relations and those of the master is one rather of form than substance. * * * * * The maxim of the civil law--_sic utere tuo ut alienum non laedas_--may, however, be fitly applied in such cases as the one before us. The remedy of the damaged vessel, if confined to the culpable pilot, would frequently be a mere delusion. He would often be unable to respond by payment--especially if the amount recovered were large. Thus, where the injury was the greatest there would be the greatest danger of a failure of justice. According to the admiralty law, the collision impresses upon the wrong-doing vessel a maritime lien. This the vessel carries with it into whosesoever hands it may come. It is inchoate at the moment of the wrong and must be perfected by subsequent proceedings. Unlike a common law lien, possession is not necessary to its validity. It is rather in the nature of the hypothecation of the civil law. It is not indelible, but may be lost by laches or other circumstances. The proposition of the appellants would blot out this important feature of the maritime code, and greatly impair the efficacy of the system. The appellees are seeking the fruit of their lien. All port regulations are compulsory. The provisions of the statute of New York are a part of a series within that category. A damaging vessel is no more excused because she was compelled to obey one than another. The only question in all such cases is, was she in fault? The appellants were bound to know the law. They cannot plead ignorance. The law of the place makes them liable. This ship was brought voluntarily within the sphere of its operation, and they cannot complain because it throws the loss upon them rather than upon the owners of the innocent vessel. We think the rule which works this result is a wise and salutary one, and we feel no disposition to disturb it. REFERENCES FOR GENERAL READING _Admiralty_, Hughes, 117-124; 28-38. _Admiralty Reports_, Brown, Williams, 208. Sturgis _v._ Boyer, 24 How. 110. _Collisions_, Marsden, Chapter VIII. Webb, 14 Wall. 406. [23] See § 9, Chapter XI, _supra_. CHAPTER XIII SALVAGE AND GENERAL AVERAGE =1. Definitions.=--Salvage may be defined as a legal liability which is created by the rescue of maritime property from perils of the sea. It may be quite independent of contract or agreement and these do not affect its nature. The word also designates the reward or compensation for the rescue and, sometimes, the property which is saved. Its essentials are maritime property in peril and a voluntary successful effort to save it. From the standpoint of the owner of the property, it is the price of safety. The ingredients of a salvage service are, first, enterprise in the salvors in going out in tempestuous weather to assist a vessel in distress, risking their own lives to save their fellow-creatures, and to rescue the property of their fellow-subjects; secondly, the degree of danger and distress from which the property is rescued--whether it were in imminent peril, and almost certain to be lost if not at the time rescued and preserved; thirdly, the degree of labor and skill which the salvors incur and display, and the time occupied. Lastly, the value. Where all these circumstances concur, a large and liberal reward ought to be given; but where none, or scarcely any take place, the compensation can hardly be denominated a salvage compensation: it is little more than a remuneration _pro opere et labore_ (The Clifton, 3 Hagg. Adm. 14, 48 [_quoted_ with approval in Cope _v._ Drydock Co., 119 U. S. 625]). General Average is also the price of safety under different circumstances. It is the contribution required of the parties interested in a maritime venture to compensate the sacrifice of a part for the safety of the rest. The typical instance is the jettison of cargo in order that the ship may be saved; the loss is equalized by a general average. =2. What May Be Salved.=--The subject of salvage can only be vessels and property that is or has been on board a vessel. In Chapter I § 4, there is some discussion of what constitutes a ship within the meaning of the law. In Cope _v._ Drydock Co., 119 U. S. 625, salvage was claimed rescuing a floating drydock, which had been in collision with a steamship and was on the point of sinking. The Court held that the service performed was not salvage because the drydock was not a vessel and not a salvable thing. Justice Bradley said that a dock, though floating, was not used for the purpose of navigation and that "no structure that is not a ship or vessel is a subject of salvage," adding: A ship or vessel, used for navigation and commerce, though lying at a wharf, and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service. * * * * * If we search through all the books, from the Rules of Oléron to the present time, we shall find that salvage is only spoken of in relation to ships and vessels and their cargoes, or those things which have been committed to, or lost in, the sea or its branches, or other public navigable waters, and have been found and rescued. * * * * * There has been some conflict of decision with respect to claims for salvage service in rescuing goods lost at sea and found floating on the surface or cast upon the shore. When they have belonged to a ship or vessel as part of its furniture or cargo they clearly come under the head of wreck, flotsam, jetsam, ligan, or derelict, and salvage may be claimed upon them. But when they have no connection with a ship or vessel some authorities are against the claim, and others are in favor of it. It was held by the Supreme Court of the United States (The Jefferson, 215 U. S. 130) that where a vessel, laid up in drydock in a shipyard for repairs, was saved from destruction by a fire, which was raging in the shipyard, by tug boats in the stream which played streams of water from the stream upon the endangered vessel, it was a case of salvage. The Court after remarking that a maritime lien for repairs existed against a vessel in drydock, said: There is no distinction between the continued control of admiralty over a vessel when she is in a drydock for the purpose of being repaired, and the subjection of the vessel when in a drydock for repairs to the jurisdiction of a court of admiralty for the purpose of passing upon claims for salvage services, by which it is asserted the vessel, while in the dock, was saved from destruction. =3. Salvor's Lien.=--Whoever performs a salvage service acquires a maritime lien of the highest rank upon the property saved for this compensation. This lien is quite independent of possession and will be enforced by a court of admiralty by a proceeding _in rem_, i.e., against the ship. Ordinarily it is the salvor's duty promptly to place the property in possession of the court by libeling it for salvage at his first opportunity for such an award as the court shall deem just. This will usually be his only remedy, in the absence of an express contract. There is no personal liability against the owner of the property saved unless he requested performance of the service or received the property with knowledge of the claim. =4. Amount of Reward.=--The amount of salvage is usually regulated by the value of the property saved and the value of that engaged in the operation; the degree of risk or peril and the time and expense of the salvors. The expenses of volunteer salvors cannot be recovered as such, though the court may take them into consideration in fixing the amount of the award.[24] Success is essential. There can be no salvage award for the most meritorious efforts if unsuccessful. It is the policy of the admiralty to stimulate efforts for the rescue of property in distress by liberal rewards and also to discourage exorbitant demands and inequitable behavior by correspondingly reducing them. In the case of the Sandringham, 10 Fed. 556, the court listed the factors involved in determining the amount to be awarded as salvage as follows: (1) The degree of danger from which the lives or property are rescued. (2) The value of the property saved. (3) The risk incurred by the salvors. (4) The value of the property employed by the salvors in the wrecking enterprise, and the danger to which it was exposed. (5) The skill shown in rendering the service. (6) The time and labor occupied. (7) The degree of success achieved, and the proportions of value lost and saved. Work of this nature is often performed by contract, by vessels and corporations equipped and organized for the purpose. This fact does not militate against their claims as salvors in proper cases but the courts will not hesitate to modify the contract if they consider it unjust. The case of the Leamington, 86 Fed. 675, contains a note giving many instances of amounts awarded under various circumstances.[25] As a general thing salvage is not allowed in an amount exceeding 50 per cent of the value of the thing salved, although there are cases where as high as 75 per cent has been allowed. There was an old rule, "50 per cent for a derelict." This rule has been departed from in many cases. The amount to be awarded lies largely in the sound discretion of the trial court which takes into consideration all of the elements of labor, risk, value, time, expense, and any other features that may enter into the case. It is practically impossible to lay down rules for determining the amount to be awarded. The books, however, say that the award should not be so great that the salvage service becomes of no use to the owner of the thing salved. For example if the charges and expenses of the owner come to 50 per cent of the value of the thing salved, an award of 50 per cent will not be made to the salvors, no matter how perilous, arduous and meritorious their work may have been to the owners. Sometimes the award when computed on percentage of the value of the salved property is very small, in some cases only about 4 per cent. These are cases where the service performed was not extensive or highly meritorious and the salvage property was of large value, so that the amount of money received by the salvors was considerable, though the percentage was small. The amount awarded to salvors is not always calculated on the basis of a percentage or proportion of the value salved; in many cases the trial court fixes a flat figure which it thinks the service worth. =5. Who May Be Salvors.=--Generally, any one not under obligation to render the service, may rank as a salvor, and, conversely, those obliged to work, cannot claim any reward. Sailors on the ship in peril cannot be salvors until released from their engagement or an abandonment of the ship. A passenger cannot earn salvage by mere labor on a vessel in peril, for this is his duty, yet for extraordinary services he may have a salvage award. Such was the case of the _Great Eastern_ when she had been disabled by a gale and was lying helpless in the trough of the sea. Among the passengers was a civil engineer who ingeniously devised and after twenty-four hours' labor carried out a plan for steering her so that she was able to make port. The court awarded him about $15,000. So, in the _Fair American_, captured by a French privateer and in charge of a prize-crew, her cook succeeded in recapturing and bringing her into port by exertions outside his line of duty, and ranked as a salvor accordingly. A pilot acting within the line of his duty, however he may entitle himself to extraordinary pilotage compensation as distinct from ordinary pilotage for ordinary services, cannot be entitled to claim salvage, but a pilot is not disabled from becoming a salvor if he performs salvage services outside the scope of his duties. He stands in the same relation to the property as any other salvor (Hobart _et al._ _v._ Drogan, 10 Peters 108). =6. Distinction Between Towage and Salvage.=--Cases have frequently arisen in which a vessel that has towed another into a place of safety has claimed salvage for so doing. Whether or not the service rendered amounts to salvage and entitles the towing vessel to a salvage reward, or is mere towage to be recompensed as such, is sometimes difficult to determine. There is no fixed guide. In the J. C. Pfluger, 109 Fed. 93, the Court said: If the vessel towed was by this means aided in escaping from a present or prospective danger, the service will be regarded as one of salvage, and the towage as merely an incident. If, upon the other hand, the vessel thus assisted was not encompassed by any immediate or probable future peril, such service will be treated as one of towage merely, and compensated as such. It was said by Dr. Lushington (The Charlotte, 3 W. Rob. Adm. 68) that, in order to constitute a salvage service, it is "not necessary that the distress should be actual or immediate, or the danger imminent and absolute; it is sufficient if, at the time the assistance is rendered, the ship has encountered any damage or misfortune which might possibly expose her to destruction if the service were not rendered." In McConochie _v._ Kerr (D. C. 9 Fed. 50), Judge Brown, in pointing out the distinction between a salvage and towage service, said: "A salvage service is a service which is voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress or danger, either present or to be reasonably apprehended. A towage service is one which is rendered for the mere purpose of expediting her voyage, without reference to any circumstances of danger." In the case of the Emily B. Souder, 15 Blatch. 185, Fed. Cas. No. 4,458, Chief Justice Waite stated the law upon this point as follows: "It is well settled that, if there is not actual or probable danger, and the employment is simply for the purpose of expediting the voyage, such service is towage and not salvage." Under the plain and well-settled rule declared in the foregoing cases, whether a particular service was one of salvage or towage is always a question of fact to be ascertained from a consideration of the circumstances under which the court shall find the service was rendered; and, unless the evidence shows that the vessel towed was thereby assisted in getting safely away from some actual or apprehended peril, the case is not one in which salvage has been earned. In the Reward, 1 W. Rob. 174, a distinguished English judge laid it down that, Mere towage service is confined to vessels that have received no injury or damage; and mere towage reward is payable in those cases only where the vessel receiving the service is in the same condition she would ordinarily be in without having encountered any damage or accident. =7. Distribution of Salvage Award.=--The rule of the admiralty is that all who materially contribute to the rescue are entitled to share in the award. Thus the master and crew of the salving vessel are entitled to participate with the owner, according to their individual exertions and success. The owner should not appropriate the whole unless the crew were especially employed for the work. The court will frequently divide the amount between the owner and the crew and apportion the share of the latter in proportion to their wages. The principal element in determining the owner's share is the value of the ship and the risk to which it was exposed. Under special circumstances the cargo-owner may also participate. Where the salving vessel is a steamer the owners' share of the salvage is larger and that of the crew proportionately smaller than if she were a sailing vessel or other craft because of the superior efficiency of a steamer in salvage work. Credit and compensation for the superior character of the salving vessel must go to her owners. In Transportation Co. _v._ Pearsall, 90 Fed. 435, there is a discussion of salvage distribution. In that case three tugs, all belonging to the same owner, had salved a steamer which had gone ashore. The owner of the tugs affected a settlement with the owners of the steamer and received $13,000 in full of all demands. A libel _in personam_ against the master and owner of the tugs was brought by the engineer and fireman of the third, each claiming a share of the $13,000. The court decided that the owner of the tugs was entitled to two-thirds of the salvage award, and ordered the remaining one-third to be distributed among the masters and crews of the tugs proportionately, awarding the engineer $500 and the other libellants $200 apiece, these awards being in proportion to their wages. The court remarked that under the rule once prevailing in admiralty the owners of the salving vessel could not receive more than one-third of the award unless there were unusual circumstances of peril to the salving vessel, that that rule had been modified in the direction of greater liberality to steamships, citing cases in which the share of the salving vessel had been fixed at three-fourths and even four-fifths. The Court said: An examination of the cases will show that there is no fixed rule with regard to the proportion in the salvage award allotted to the owners of the salving vessel. Most frequently salvage services are rendered upon a voyage, in the absence of the owners, and when the salving vessel is under the charge of, and is controlled by, the master and crew. As salvage is awarded for the encouragement of promptness, energy, efficiency, and heroic endeavor in saving life and property in peril, the claims of the master and crew who exhibited these qualities must meet the most favorable consideration. At the same time an allowance is made for the owners whose property has been imperiled. But when the owners direct the service, or when the peril encountered is chiefly that of the salving vessel, with no proportionate peril to the crew, an award to the owners is more liberal. It was also said that the making of distribution in proportion to the wages is a "just and uniform rule in all ordinary cases." Where salvage is performed by successive sets of salvors,--for instance, if one set of salvors gets a ship off a reef, and a second set takes her into port--the award is apportioned between the two sets, special consideration being shown to the first set of salvors because they made the work of the second possible. =8. Distribution of Liability for Payment.=--The vessel, cargo, and freight money saved are to contribute to the payment of the salvage award according to their relative values at the port of rescue. As between the ship and cargo, each is liable for its own proportion alone. The salvor cannot recover the entire salvage from either, but only the proportion for which respondent is liable. As was said by Justice Story in Stratton _v._ Jarvis, 8 Peters 4: It is true that the salvage service was in one sense entire; but it certainly cannot be deemed entire for the purpose of founding a right against all the claimants jointly, so as to make them all jointly responsible for the whole salvage. On the contrary, each claimant is responsible only for the salvage properly due and chargeable on the gross proceeds or sales of his own property _pro rata_. It would otherwise follow that the property of one claimant might be made chargeable with the payment of the whole salvage, which would be against the clearest principles of law on this subject. Where a ship is saved and unable to continue her voyage and carry out her contracts of affreightment, the freight is one of the things of value saved, but in determining the value of the freight saved for the purpose of assessing a salvage award against it, "the freight to be considered is only such proportion of the freight earned by the entire voyage as the distance at which the salvage service was rendered from the port of departure bears to the whole voyage." The Sandringham, 10 Fed. 556. =9. Statutory Regulations.=--By the Act of August 1, 1912, (7 U. S. Comp St. §§ 7990-7994) it is provided that the right to remuneration for salvage services shall not be affected by the fact that the same person owns both vessels; that the master must render assistance to every person found at sea who is in danger of being lost, so far as he can do so without serious danger to his own vessel, under penalty of not exceeding one thousand dollars or imprisonment not exceeding two years, or both; that salvors of human life are entitled to share in the award; that salvage suits must be brought within two years; and that nothing in the Act shall apply to ships of war or Government ships on public duty. =10. Instances of Salvage Services.=--Where a fishing schooner on the Atlantic picked up a floating body on which was a wallet containing a considerable sum of money and promptly delivered the treasure to the court, they were awarded one-half the amount, to be apportioned one-third to the owners of the fishing vessel, one-third to the master and one-third to the crew; the master's share was made somewhat larger because he had resisted the proposal of some of the crew to merely divide the coin and say nothing. The balance was turned over to the public administrator of Massachusetts to hold for the benefit of the unknown heirs, and, if they failed to appear, for further disposition according to law (Gardner _v._ Gold coins, 111 Fed. 552). The Egyptian obelisk, now in London and known as "Cleopatra's Needle," became the subject of salvage services in the Bay of Biscay, during its voyage from Alexandria and the award was two thousand pounds (see Dixon _v._ Whitworth, 4 Asp. M. L. C. 138, 327). In the Jefferson, 215 U. S. 130, the vessel was in a drydock and threatened by a conflagration on adjoining property; tugs stood by and played streams from their hose upon her until the danger was past. The court overruled the argument that the service could not be salvage because the vessel was not afloat and directed an award. Where, however, a steamer had been swept high and dry on the shore about a hundred feet above high-water mark and lay there five years, the court declined to consider as salvage the plan and work of floating her by dredging out a basin and canal for her flotation; she had ceased to be engaged in commerce and navigation and the contract was not maritime (Skinner, 248 Fed. 818). The doctrine of this case will probably not be extended beyond its own facts. In the Burlington, 73 Fed. 258, where the ship had been stranded to put out a fire and lay as a menace to navigation while the owner and underwriters were in dispute as to his right to abandon, and the salvor brought her safely into port, he was awarded the entire value as salvage; while in Murphy _v._ Dunham, 38 Fed. 503, where the salvor proceeded on the erroneous idea that the cargo-owner's title is extinguished when his property sinks, and salved it for his own use, he was only allowed his expenses and narrowly escaped being assessed for the full value. The Albany, 44 Fed. 431, is another instance of the persistence of the old notion that title is acquired by finding property lost at sea; the ship had stranded and the master was jettisoning a valuable cargo of package freight; the countryside swarmed with wagons and lighters to appropriate what could be obtained. The Court held the parties as for embezzlement and said there was a medieval flavor about their conduct which recalled to a student of maritime law the customs of the ancient Gauls, who not only appropriated the cargoes of vessels wrecked on their coasts but sold their crews into slavery or sacrificed them to their gods. The Court quoted the following succinct statement of the nature of salvage from Mr. Justice Story: In cases of salvage, the party founds himself upon a meritorious service, and upon an implied understanding that he brings before the court, for its final award, all the property saved, with entire good faith, and he asks a compensation for the restitution of it uninjured and unembezzled by him. The merit is not in saving the property alone, but it is in saving and restoring it to the owners. However meritorious the act of saving may have been, if the property is subsequently lost, and never reaches the owner, no compensation can be claimed or decreed. =11. Distinction Between General and Particular Average.=--The former is a partial loss, voluntarily incurred for common safety, and recompensed by all benefited thereby; the latter is a partial loss involuntarily caused, which must be borne by the party on whom it falls. One of the most approved definitions of general average is,--"All loss which arises in consequence of extraordinary sacrifices made, or expenses, incurred, for the preservation of the ship and cargo, comes within general average, and must be borne proportionately by all who are interested." In the case of Barnard _v._ Adams, 10 How. (U. S.) 270, the ingredients of general salvage were thus stated: In order to constitute a case for general average, three things must concur: 1st. A common danger; a danger in which the ship, cargo and crew all participate; a danger imminent and apparently "inevitable," except by voluntarily incurring the loss of a portion of the whole to save the remainder. 2nd. There must be a voluntary jettison, _jactus_, or casting away, of some portion of the joint concern for the purpose of avoiding this imminent peril, _periculi imminentis evitandi causa_, or, in other words, a transfer of the peril from the whole to a particular portion of the whole. 3rd. This attempt to avoid the imminent common peril must be successful. =12. Essential Elements.=--The rule expresses the plainest principles of common justice but is confined to maritime law and within somewhat precise limitations. The sacrifice for which contribution is sought must be directed by the master of the ship or by his authority;[26] it must be voluntary and for the safety of the entire venture;[27] it must be necessary and successful;[28] and neither the party whose fault occasioned the loss nor any outside of the interests represented in the ship and cargo can have contribution.[29] Thus the scuttling of a ship by order of port authorities to extinguish a fire in the hold is not general average, although it would have been if done by order of the master. If the vessel is stranded by force of wind or current, there is no general average loss, while if the master deliberately puts her ashore, choosing the locality to escape a greater danger, it will be considered a case for general average by American law. Where the master threw overboard a quantity of coin, not to save the ship and cargo, but to prevent the money falling into enemy hands, it was not general average although it would have been if his purpose had been to lighten the ship in order to escape. Where the sacrifice is not necessary, in a pecuniary sense, for the common safety, it is not allowed, as where a vessel met a foundering emigrant ship and threw overboard part of its cargo in order to take the passengers on board; this was not a general average loss entitling the owner of the cargo to contribution. When the sacrifice is unsuccessful there is no general average, as where the master of a ship which was dragging her anchors cut away the masts to prevent the drifting, but she finally went ashore; and where the cause of the sacrifice is a fault of the ship or defect in the cargo, contribution is denied; so also when a tug cuts the towline of her barges in a storm to save herself from going ashore with them and thereby saves herself. =13. Instances of General Average.=--The classic example[30] is throwing overboard (or, as it was called, jettisoning) a part of the cargo in order to escape a storm. Thus if there is a ship worth $20,000, freight list, $10,000, and cargo $70,000, of which X owns $30,000, Y $20,000, and Z $20,000, and $10,000 of X's goods were jettisoned, each interest, including X, will bear 10 per cent of the sacrifice; the ship pays X $2,000; the freight list pays him $1,000; and Y and Z pay him $2,000 each; he receives $7,000 and stands $3,000 and so the sacrifice is equally borne by all. Cargo may be burnt as fuel, or lost by a sale or pledge to raise money to continue the voyage; a mast may be cut away to lighten the ship or the engines injured by overwork to escape disaster or expenses incurred by deviating to a port of refuge for repairs; cargo may be warehoused or transshipped; salvage expenses may be incurred in saving the venture from a stranding or sinking after a collision; and all the various and multiform forms of loss sustained and expenses incurred for common safety, within the definition, are made good by the contribution of all. Ordinarily a jettison of cargo carried on deck does not give rise to general average, although deck cargo is not exempt from contributing its share of the average for other cargo jettisoned for its safety. But deck cargo will be entitled to participate in general average where the goods are of such character as it is customary in the trade to carry on deck; also where the other cargo-owners have expressly consented that it be carried on deck; also usually in coasting and river voyages. The cases excluding deck cargo from average have generally arisen out of sailing vessels and it may be that the rule should be confined to sailing vessels. =14. The Adjustment.=--This ascertains the amount of the claim and the respective shares of contribution. It is the duty of the master and shipowner to see that timely steps are taken for this purpose. After a voluntary sacrifice of part of the adventure, and a consequent escape of the rest from imminent peril, the owner of the ship, or in his absence, the master as his agent, has the duty of having an adjustment made of the general average, and has a maritime lien on the interests saved, and remaining in his possession, for the amount due in contribution to the owner of the ship; and the owner of goods sacrificed has a corresponding lien on what is saved, for the amount due him (Ralli _v._ Troop, 157 U. S. 386). The work is usually done by an adjuster and often requires a high degree of professional skill. He determines what losses are to be adjusted, what goods contribute, how the values of the receiving and contributory interest are estimated, and when and where the adjustment should be made. He must necessarily bring to this work a special acquaintance with maritime law and the current decisions of the courts on the subject as well as a practical acquaintance with the values involved and the methods of business which they represent. He is, however, merely an expert without any judicial authority and his work is subject to review by the parties in interest. In practice, the shipowner places in his hands the documents from which the necessary facts can be ascertained; the protest of the master and mariners showing the circumstances under which the sacrifice was made and the manifest of the cargo to show the goods involved will be essential; in addition there may be the report of surveyors as to the condition and value of the ship and other property involved and such other evidence as the adjuster requires to have before him, the valuations of hull, cargo, freight and all other items involved in the contribution, excepting the wages of the master and crew, their personal effects and the apparel, jewelry and baggage of the passengers. [24] Teutonia _v._ Erlanger, 248 U. S. 521. [25] See § 10, this title, _infra_. [26] The reason is that the master "derives his authority from the implied consent of all concerned in the common adventure" (The Hornet, 17 How. 100). "The character of agent respecting the cargo is thrown upon the master by the policy of the law, acting on the necessity of the circumstances in which he is placed" (The Gratitudine, 3 C. Rob. Adm. 240). [27] "Where the sacrifice, while for the general benefit of the whole adventure, was also for the particular benefit of the cargo, it was not a subject of general average" (The Mary, 1 Sprague 19). [28] Expenses voluntarily and successfully incurred, or the necessary consequences of resolution voluntarily and successfully taken, by a person in charge of a sea adventure, for the safety of life, ship and cargo, under the pressure of a danger of total loss or destruction imminent and common to them, give, the ship being saved, a claim to general average contribution (Abbott on Shipping, 537, note). [29] Thus where a tug abandoned her tow in order to save the tug; the owners of the tow were not entitled to general average contribution because it was not a part of the ship or cargo. [30] Probably the earliest recorded case is that mentioned in Jonah 1, where cargo was jettisoned to lighten a ship in peril on a voyage from Joppa to Tarshish. The elements of general average were present, though it does not appear that an adjustment was made. CHAPTER XIV CRIMES COMMITTED AT SEA =1. Definition.=--A crime consists in the violation of a public law either forbidding or commanding an act to be done. One act may constitute several crimes against different jurisdictions, as against a State and the United States and a foreign country. Crimes are classified as treason, felonies and misdemeanors. Treason against the United States consists only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Felonies are crimes punishable by death or imprisonment in a state prison; all other crimes are misdemeanors. Crimes committed at sea are those accomplished upon the high seas or within the jurisdiction of the admiralty, which extends over all navigable waters. Such crimes are punishable by the United States so far as Congress legislates on the subject and otherwise by the particular sovereignty within whose jurisdiction the offense is committed. =2. Admiralty Criminal Jurisdiction.=--The constitutional grant embraces criminal as well as civil cases and no crime can escape punishment because committed on shipboard or on the high seas. The provisions of the Constitution in regard to the trial of crimes under the laws of the United States require the proceedings to be according to the practice of the common law, so that they are before a jury as in ordinary cases and the ordinary rules of criminal law are applied. These crimes are covered by the Criminal Code (10 U. S. Comp St. 1916, 10419-10444; 10445-10462; 10463-10483). There may also be other crimes according to the law of the place where the vessel may be or according to the laws of the State or country from which she hails. Merchant vessels are regarded for many purposes as floating portions of the country to which they belong and of the particular State of their home port. An American merchant vessel on the high seas will therefore continue under the appropriate laws both of the United States and of her own particular State, and while in foreign ports she will also be subject to local law. She will never be outside the scope of some law and although several jurisdictions may overlap, crimes committed on board will not escape punishment. =3. Place of Trial.=--Whenever an offense is committed on board of an American vessel, it is the duty of the master and crew to detain the offender and surrender him to the proper authorities for trial as soon as may be. If the offense is within the limits of a particular State, the trial must be in a Federal court therein; if committed on the high seas, then in a like court of the district wherein the offender is apprehended or into which he is first brought; if within a port of a foreign country, the local laws may prevail. The jurisdiction of every independent nation over the merchant vessels of other nations within its boundaries is absolute and exclusive and arrests may be made thereon and offenders removed for trial according to the laws of the locality. The right of local authorities to search a vessel in their ports for a person charged with crime is established unless modified by treaty. The master is bound to submit to the jurisdiction within which his vessel lies. In practice a distinction is made between offenses affecting the peace and dignity of the foreign country and those only involving the internal order and discipline of the ship. A certain comity preserves the latter from outside interference and local authorities will usually decline to act in such cases or interfere with the general authority of the master. It is frequently provided by treaty that disputes between the masters, officers and crews may be adjudicated by their consuls, provided that they do not disturb the peace or tranquillity of the port. =4. Offenses Not Consummated on Shipboard.=--Where the crime is committed on the high seas although not on shipboard, the admiralty jurisdiction as administered by the Federal courts will still be enforced. The case of Holmes, 1 Wall. Jr. 1; 26 Fed. Cas. No. 15,383, is an unusual example. The American ship, _William Brown_, loaded with passengers and cargo, struck an iceberg in the North Atlantic and had to be abandoned. Nine of the crew and thirty-two passengers got into the longboat; Holmes was one of the crew and took charge of her in an attempt to reach Newfoundland, then about three hundred miles away. The longboat proved leaky and was so seriously overloaded by those on board as to fill with water in the sea which began to rise. In the face of urgent necessity and under Holmes' general directions, sufficient of the passengers were thrown overboard to enable the boat to float until picked up by a passing ship. Holmes was convicted of manslaughter in the Eastern District of Pennsylvania. =5. Penalties and Forfeitures.=--The ship herself may be a quasi-criminal under maritime law. All commercial nations find it necessary for the enforcement of their laws and regulations in regard to commerce by sea, to impose penalties upon the vessel by or through which violations occur. So a vessel which has engaged in any piratical aggression may be condemned and sold for the use of the United States. Violation of a blockade or carriage of contraband of war renders the ship liable to seizure and sale by the Government. A ship licensed for the coasting trade may be forfeited if she engages in any other, and many penalties may be inflicted upon the vessel for acts of which the owner is entirely innocent. Similarly a false oath made in order to obtain the registry of a vessel, or any other fraud for the purpose of obtaining registry, enrollment or licenses will result in her forfeiture, and so will a sale to an alien without complying with the provisions of the statutes (Chapter 11, § 10, _supra_). Forfeiture of a vessel will also result from an attempt to change her name, otherwise than by the method provided by law (Chapter 11, § 9, _supra_), or to deceive the public as to her true name and character by any contrivance, device or advertisement of law where the owner or the master is privy to the offense, as for example the importation of diseased cattle. The doctrine of the personality of the ship again appears in the criminal law of the admiralty which treats her like an individual for purposes of regulation and punishment. The principle was laid down by Justice Story in the brig Malek Adhel, 2 How. (U. S.) 210: It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offense has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. * * * * * The acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs. Thus if a vessel fails to carry the wireless equipment prescribed by law a fine is imposed upon the master and is a lien upon the ship enforceable by law in admiralty. The statute governing the equipment of vessels with radio telegraph apparatus is given under § 11 _infra_. Innocent cargo is not involved in the forfeiture of a guilty vessel, and where the owner and master of a vessel is innocent she will not usually be forfeitable by reason of the guilt of the cargo. The sending, or attempting to send to sea, of a vessel so unseaworthy as to be likely to endanger life, is a misdemeanor for which the person guilty is to be punished by fine or imprisonment, or both (Act of December 21, 1898, § 11), unless he is able to prove either that he used all reasonable means to insure her being sent to sea in a seaworthy state, or that her going to sea in an unseaworthy state was under circumstances reasonable and justifiable. =6. Federal Criminal Code.=--This was promulgated by the Act of March 4, 1909, and will be found in 10 Comp. St. 1916, commencing at page 12491. Maritime offenses are grouped in Chapter 11, "Offenses within the admiralty and maritime and the territorial jurisdiction of the United States," and Chapter 12, "Piracy and other offenses upon the Seas." Unlike the legislatures of the several States, which have an inherent power to define and punish any act as a crime, subject to constitutional limitations, Congress is confined to the powers enumerated in the Federal Constitution. In regard to offenses at sea, its power is derived from § 8 of Article 1, "To define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations," and from Article III which provides that the judicial power shall be versed "in such inferior courts as the Congress may from time to time ordain and establish" and shall extend "to all cases of admiralty and maritime jurisdiction." Chapter 11 provides for the punishment of murder, manslaughter, felonious and simple assaults, attempts to commit murder or manslaughter, rape, seduction, loss of life by misconduct of officers of vessels, maiming, robbery, maritime arson, larceny and receiving stolen goods, when committed upon the high seas, or any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, or within such admiralty jurisdiction on board of any vessel belonging in whole or in part to the United States, or any citizen thereof, or corporation created under its laws or those of any of its States, Territories or Districts; also, when committed upon any American vessel on a voyage on the Great Lakes, or upon any island, rock or key, containing deposits of guano and appertaining to the United States. Chapter 12 provides for the punishment of piracy; maltreatment of crews; incitement of revolt or mutiny; seamen laying violent hands on commanders; abandonment of mariners in foreign ports; conspiracy to cast away vessels; plundering vessels in distress; holding false lights; attacking vessels with intent to plunder; breaking and entering vessels; destruction of vessels at sea; robbery on shore by pirates; arming vessel to cruise against citizens; piracy under color of foreign commission; piracy by aliens; voluntary surrender to pirates; plotting or corresponding with pirates and selling arms or intoxicants to any aborigines in Pacific Islands. The punishments provided for the offenses in these two chapters are generally severe but in harmony with what experience has shown to be appropriate for the crimes dealt with. Besides these provisions, the Code, in Chapter 10, deals with the slave trade and peonage; in Chapter 2, with offenses against neutrality; and in Chapter 9, with offenses against foreign and interstate commerce, such as carrying explosives on passenger vessels. Title LIII Merchant Seaman (7 Comp St. §§ 8380-8391) contains various provisions in respect of offenses and punishments of seamen; desertion; willful disobedience; assaults on officers; damaging the vessel; embezzlement of stores or cargo; smuggling; drunkenness; carrying sheath-knives; unlawful boarding; soliciting seamen as lodgers; and corporal punishment are there dealt with. =7. Concurrent Jurisdictions.=--There is no doubt that Congress has the power to make all crimes committed within the admiralty jurisdiction punishable in the federal courts but it has not done so and is not likely ever to so enact. Neither is it likely ever to assert an exclusive jurisdiction over all or any such crimes except as may be in violation of a purely federal enactment. Where this exclusive jurisdiction has not been asserted, either in terms or by necessary implication, state laws are not superseded by federal, and the same act may be punished as an offense against the United States and also as an offense against the State; it may thus be within the jurisdiction of both federal and state courts or the one may have jurisdiction of it under one aspect and the other under a different phase. The rule of comity is the same as in civil cases; where there is concurrent jurisdiction, the court which first obtains it, will continue to act to the exclusion of the other. Where the defendant obtains an acquittal in one court of concurrent jurisdiction, the judgment is a bar to a subsequent trial in the other, since he is not subject, for the same offense, to be twice put in jeopardy of life or limb. =8. Limitations of Prosecutions.=--The right of the government to prosecute for a crime is not barred by any lapse of time unless its statutes so expressly provide. In the federal courts, there must be an indictment within three years after the offense was committed, in most instances; for the slave trade, the term is five years; but these terms do not run while the offender is a fugitive from justice. =9. Piracy.=--While the majority of offenses under maritime law only differ from like offenses on land in respect of locality, piracy is confined to the water. Pirates are enemies of all mankind and the offense is against the universal laws of society. There is a piracy, therefore, by the law of nations and those guilty of it are subject to pursuit, seizure and punishment by the vessels of every nation. There is also a statutory piracy which is punishable only within the limits of the jurisdiction which defines it. The pirate by the law of nations is an outlaw whom any nation may capture and punish. He is one who, without legal authority from any state, attacks a ship with the intention to appropriate what belongs to it; in other words, his offense is that of depredation on the high seas without authority from any sovereign state. All private, unauthorized maritime warfare is piratical because it is incompatible with the peace and order of the high seas. It is not necessary that the motive be plunder or that the depredations be directed against the vessels of all nations indiscriminately; it is only essential that the spoliation, or intended spoliation be felonious, that is, done willfully and without legal authority or lawful excuse. In cases of this piracy by international law, it is of no importance, for purposes of jurisdiction, where or against whom, the offense is committed; such pirates may be tried and punished and the ship captured and condemned wherever found. Apart from international law, any government may declare offenses on its own vessels to be piracy and such offenses will be exclusively punishable by it like other crimes. St. Clair _v._ U. S., 154 U. S. 134, may be examined in regard to an instance of statutory piracy; while the Ambrose Light, 25 Fed. 408, is a very learned and authoritative opinion on the modern views of piracy under international law. =10. Barratry.=--This expression frequently appears in maritime law and includes any act done by the master or crew, with criminal intent, in violation of their duty to the shipowner and without his connivance. It is a general term applicable to many criminal acts and therefore not properly classifiable as a crime by itself. The most flagrant form is where the ship is burned, scuttled or stranded by the master or crew. In Marine Insurance it includes every wrongful act willfully committed by the master or crew to the prejudice of the owner, or, as the case may be, the charterer. Inasmuch as barratry must be directed against or in fraud of the owner, it cannot be committed by a master who is a part owner of the ship, either generally or for the voyage. Thus in the old case of Marcadier _v._ Ins. Co., 8 Cranch 39, the master abandoned the voyage at an intermediate port for his own emolument and advantage, and, as a result, a quantity of cargo was spoiled. It was contended that he had been guilty of barratry. The Court found, however, that he was the owner of the ship and therefore incapable of committing the offense. In Ins. Co. _v._ Coulter, 3 Peters 222, it was held that gross negligence might be evidence of barratry: And when it is considered how difficult it is to decide where gross negligence ends and ordinary negligence begins, and to distinguish between pure accident and accident from negligence, we cannot but think that the British courts have adopted the safe and legal rule in deciding, that where the policy covers the risk of barratry, and fire be the proximate cause, they will not sustain the defense that negligence was the remote cause. This case contains a quaint quotation from the doctrine of Malynes "whose book unites the recommendations of antiquity, good sense and practical knowledge." The passage follows: Barratrie of the master and mariners can hardly be avoided, but by a provident care to know them, or at least the master of the ship upon which the assurance is made. And if he be a careful man, the danger of fire above mentioned will be the less for the ship; boys must be looked unto every night and day. And in this case let us also consider the assurers; for it has oftentimes happened, that by a candle unadvisedly used by the boys, or otherwise, before the ships were unladen, they have been set on fire and burnt to the very keel, with all the goods in them, and the assurers have paid the sums of money by them assured. Nevertheless, herein the assurers might have been wronged, although they bear the adventure until the goods be landed; for it cometh to pass sometimes, that whole ships' ladings are sold on shipboard, and never discharged. =11. Failure to Equip with Radio Telegraph.=--By Act of Congress approved June 24, 1910, 36 St. at L. 629, it is provided that it shall be unlawful for any oceangoing steamer, whether American or foreign, carrying passengers and carrying fifty or more persons, including passengers and crew, to leave any port of the United States unless equipped with efficient apparatus for radio communication in good working order, capable of communicating over a distance of at least one hundred miles, night or day, and in charge of a competent operator. To be efficient the apparatus must be capable of exchanging messages with stations using other systems of radio communication. A fine of not more than $5,000 is assessed against the master or other person in charge for violation of the act and as has been said (§ 5 _supra_) the fine is a lien upon the ship. Regulations for the enforcement of the act are made by the Secretary of Commerce. The act does not apply to steamers plying between ports less than 200 miles apart. =12. Failure to Disclose Liens.=--By the Ship Mortgage Act, 1920 (see Appendix, Merchant Marine Act, Sec. 30), a mortgagor of a preferred mortgage is required, upon request of the mortgagee, to disclose the existence of any maritime lien, prior mortgage or other liability upon the vessel, known to the mortgagor, and to refrain, until the mortgagee has had an opportunity to record the mortgage, from incurring liens upon the vessel except for wages, general average and salvage. Disobedience to this injunction with intent to defraud is made a misdemeanor punishable by a fine of not more than $1,000 and imprisonment of not more than two years, or both, and the mortgage debt is to become due immediately. =13. Mutiny.=--This term is most often used with reference to an offense committed on shipboard, although technically it is not peculiar to shipping, but may be committed by soldiers and servants. Mutiny on shipboard is defined as follows: "A revolt or mutiny consists in attempts to usurp the command from the master or to deprive him of it for any purpose by violence or in resisting him in the free and lawful exercise of his authority; the overthrowing of the legal authority of the master, with an intent to remove him against his will and the like." Mere refusal of duty or disobedience by a seaman while liable to punishment by the master is not mutiny, and the conduct may be very aggravating and contumacious without amounting to mutiny. The Stach Clark, 54 Fed. 533. CHAPTER XV WRECKS AND DERELICTS =1. Definitions.=--In a legal sense, the word wreck includes ships and cargoes, or any parts thereof, which have been cast on shore by the sea, and derelict applies to similar property abandoned on the sea. The terms should be understood as limited to things of a maritime nature and as including the old subdivisions of flotsam, jetsam and ligan,--flotsam being the name for the goods which float when the ship is sunk, jetsam meaning those which are jettisoned or thrown overboard, and ligan those cast into the sea but tied to a buoy or marker so that they might be found again. Derelict is the term applied to a thing which is abandoned at sea by those who were in charge of it, without any hope of recovery or intention of return. =2. Wrecks under the Common Law.=--It is said in Murphy _v._ Dunham, 38 Fed. 503, that the disposition of wrecks and derelicts is usually a fair index of the degree of civilization of the people within whose domains such property is found. In primitive societies, wrecks are treated as the plunder of the finder, or lord of the soil, since title depends on possession and the owner's rights disappear when his goods are separated from him. The common law of England long exhibited this imperfect notion of property. Blackstone, writing about 1760, points out that by the ancient common law, wrecked goods belonged to the King since by the loss of the ship all property left the original owner. This harsh rule was modified by statutes which declared, in substance, that if a man, dog, or a cat escaped alive out of the disaster, it was no wreck but might be reclaimed by the owner within a year and a day. In this country, colonial laws and current statutes have alike repudiated these primitive notions, and reënacting appropriate provisions of Roman and medieval sea-law, provide for safely keeping the property for the space of a year, or other reasonable time, for the owner, and delivering it to him on the payment of reasonable salvage; only in the event of the total failure of the owner to appear, do the goods or their proceeds pass to the state. The Act of Congress (10 U. S. Comp. St. 1916, § 10470) provides that whoever plunders, steals, or destroys any money, goods, merchandise, or other effects, from or belonging to any vessel in distress, or wrecked, lost, stranded, or cast away, upon the sea, or upon any reef, shoal, bank, or rocks of the sea, or in any other place within the admiralty and maritime jurisdiction of the United States, shall be fined not more than five thousand dollars and imprisoned not more than ten years; and whoever willfully obstructs the escape of any person endeavoring to save his life from such vessel, or the wreck thereof; or whoever holds out or shows any false light, or extinguishes any true light, with intent to bring any vessel sailing upon the sea into danger, or distress, or shipwreck, shall be imprisoned not less than ten years and may be imprisoned for life. It is interesting to note, in connection with this statute, two Articles of the _Rooles of Oléron_,-- ARTICLE XXV If a ship or other vessel arriving at any place, and making in towards a port or harbour, set out her flag, or give any other sign to have a pilot come aboard, or a boat to tow her into the harbour, the wind or tide being contrary, and a contract be made for piloting the said vessel into the said harbour accordingly; but by reason of an unreasonable and accursed custom, in some places, that the third or fourth part of the ships that are lost, shall accrue to the lord of the place where such sad casualties happen, as also the like proportion to the salvors, and only the remainder to the master, merchant and mariners: the persons contracting for the pilotage of the said vessel, to ingratiate themselves with their lords, and to gain to themselves a part of the ship and lading, do like faithless and treacherous villains, sometimes even willingly, and out of design to ruin ship and goods, guide and bring her upon the rocks, and then feigning to aid, help and assist, the now distressed mariners, are the first in dismembering and pulling the ship to pieces; purloining and carrying away the lading thereof contrary to all reason and good conscience: and afterwards that they may be the more welcome to their lord, do with all speed post to his house with the sad narrative of this unhappy disaster; whereupon the said lord, with his retinue appearing at the places, takes his share; the salvors theirs; and what remains the merchant and mariners may have. But seeing this is contrary to the law of God, our edict and determination is, that notwithstanding any law or custom to the contrary, it is said and ordained, the said lord of that place, salvors, and all others that take away any of the said goods, shall be accursed and excommunicated, and punished as robbers and thieves, as formerly hath been declared. But all false and treacherous pilots shall be condemned to suffer a most rigorous and unmerciful death; and high gibbets shall be erected for them in the same place, or as nigh as conveniently may be, where they so guided and brought any ship or vessel to ruin as aforesaid, and thereon these accursed pilots are with ignominy and much shame to end their days; which said gibbets are to abide and remain to succeeding ages on that place, as a visible caution to other ships that shall afterwards sail thereby. ARTICLE XXVI If the lord of any place be so barbarous, as not only to permit such inhuman people, but also to maintain and assist them in such villanies, that he may have a share in such wrecks, the said lord shall be apprehended, and all his goods confiscated and sold, in order to make restitution to such as of right it appertaineth; and himself to be fastened to a post or stake in the midst of his own mansion house, which being fired at the four corners, all shall be burnt together, the walls thereof shall be demolished, the stones pulled down, and the place converted into a market place for the sale only of hogs and swine to all posterity. The Act of Congress and the ancient articles are both occasioned by the persistent notion of loss of title by shipwreck and the right of people on shore to appropriate what they can of the property at risk. =3. Wrecks within Admiralty Jurisdiction.=--It is sometimes said that the admiralty has no jurisdiction over wrecks, but the statement is correct in only a limited sense. In cases where the property had become quite removed from all connection with commerce or navigation, as where a ship had been thrown far inland by a tidal wave and been converted into a dwelling, or cargo was incorporated into the common mass of property on shore, the admiralty would probably decline jurisdiction. On the other hand, the admiralty law of salvage is based, in large part, on the law of wrecks and derelicts; contracts for the lightering of stranded cargoes or the release of wrecked vessels are obviously maritime and the conversion of shipwrecked property may be a maritime tort when consummated on navigable waters. A steamer which had been wrecked and abandoned to the underwriters as a total loss, and incapable of self-propulsion or of carrying a cargo, still remained within the admiralty law of limited liability (Craig _v._ Insurance Company, 141 U. S. 638). The fact is that the two jurisdictions are largely concurrent on most matters in regard to wrecks and the instances, in which an adequate remedy can not be found in either, are rare. =4. Liabilities of Owner of Wreck.=--It is a general doctrine of the law that the owner of a vessel wrecked without his personal fault may relieve himself from all further personal liability on its account by abandoning it. If sunk through his fault, or if he still retains his title, he may be liable for damage which it occasions, or for maintaining a nuisance, or for obstructing navigable waters. If wrecked by unavoidable accident or without the owner's negligence, he may abandon all his rights and interest in what remains and be freed from all further responsibility; he will be under no obligation to remove it nor subject to indictment on its account, nor liable in damages for injuries caused by it. This abandonment is not required to be in any formal way but is shown by evidence of acts and intention. A notice to any public authorities who may be concerned, like local United States engineers, or harbor masters, or commissioners of wrecks, is often sufficient. Where, however, the owner does not abandon, he remains liable in many respects. The wreck may be a nuisance which the courts will compel him to abate at the suit of property owners injuriously affected. It may be an obstruction to navigable waters and the government may remove it at his expense or proceed against him criminally for such obstruction. Passing vessels may injure themselves against it or the riparian owner assert damages for the trespass. =5. Rights of Landowner.=--The owner of the shore on which a wreck is cast is not under any legal obligation to save it for the owner but he may take possession and protect it on the owner's account. If he does so, he will have a lien on the property for his expense and labor, at least, and may stand in the position of a salvor. If he does nothing himself, he may not resist the reasonable efforts of others to save the property for it is a very old rule of the common law, that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire or any like danger, is not a trespass, and this rule is applied to the rescue of ships cast ashore by the sea. At the same time, the owner of the shore will have a sufficient title to goods cast thereon to maintain an action for their value against third parties and salvors should be prompt in seeking the protection of the admiralty if their efforts are successful. =6. Owner's Rights.=--The owner's title to his wrecked ship or cargo remains in him until divested by his own act or by operation of law and he has the right to enter upon lands of another, upon which it may be cast, for the purpose of removing it; if prevented from so doing he may have his action of trover for its conversion or a replevin for possession.[31] In case his property was insured and abandoned to his underwriters, they become the full owners thereof and entitled to all his rights on the premises. These rules apply alike to ship and to cargo and to all the parts thereof. In Murphy _v._ Dunham, 38 Fed. 503, may be found an interesting discussion in regard to a wrecked cargo of coal. Dunham owned the schooner _Burt_ which was lost in Lake Michigan with about 1,375 tons of coal on board. Murphy bought this cargo from the underwriters who had paid a total loss thereon. About two years afterwards, Dunham located the wreck and raised a quantity of the coal which he sold for the best price obtainable. These proceedings were without any license or authority from Murphy, who had purchased the cargo, and he then sued Dunham for tortious conversion. The court held that Murphy had a valid title and that Dunham was a trespasser in interfering with it; nevertheless if Dunham had promptly libeled it for salvage, his conduct not being marred by bad faith, the admiralty would have awarded him a substantial reward; but as he had assumed to dispose of it at private sale, he must answer in damages, although not as a willful trespasser or one acting in bad faith; he was accordingly held to respond for the value of the coal in the port where he sold it, less the actual and necessary expenses of its recovery. The Albany, 44 Fed. 431, is another opinion in regard to the rights of the owners of ship and cargo; as a result of that disaster, the cargo was plundered by wreckers and sold to many persons in the vicinity; the underwriters recovered it by actions in replevin wherever it could be found. =7. Rights of Government.=--The Act of March 3, 1899, (10 U. S. Comp. St. § 9920, etc.) contains provisions for the removal of wrecks in navigable waters by the Government. The obstruction may be broken up, removed, sold or otherwise disposed of by the Secretary of War at his discretion, without liability for any damage to the owners of the same. This authority may be delegated by the Secretary of War and permits the prompt removal of wrecks when they interfere with navigation. The rights and power of the Government to so dispose of wreckage can hardly be doubted and similar power probably exists in all foreign jurisdictions as well as in the several states. =8. Derelicts.=--Vessels abandoned and deserted at sea, with or without their cargoes, are termed derelicts and may be salved or destroyed by whomsoever can do so. They constitute very dangerous obstructions to navigation, especially when afloat on the ocean or the Great Lakes. The question whether or not a vessel is to be adjudged a derelict is decided by ascertaining, not what was actually the state of things when she was deserted by her master and crew, but what were their intentions and expectations when they quitted her. If they left in order to obtain assistance with the distinct purpose to return, there is no derelict. _Prima facie_, however, a deserted vessel at sea is a derelict and subject to salvage services, or, if not salvable, then to destruction by private parties or naval authorities. Salvage of derelicts is always liberally rewarded, sometimes to the amount of the whole recovery. If destroyed, the proceeding must be in entire good faith and, if so, there will be no liability to the owner. In the case of the River Mersey, 48 Fed. 686, that steamer had burned a scow found adrift at sea and was libeled for its destruction. It appears that the scow had broken adrift near one of the West Indies and become a dangerous factor in the navigation up and down the coast. The steamer took her in tow in order to drop her inside of the Gulf Stream but, finding this impossible on account of the weather, set her on fire in order to destroy her and so remove a dangerous obstruction to navigation. The owners of the scow alleged that they had not abandoned her and meant to send out a tug to bring her into port. The court dismissed the libel, saying that the destruction of such obstacles to the fairways of the sea, either when abandoned, or when proved not to be worth saving, is not tortious or actionable, but rather a praiseworthy and beneficent service, and, whether done by private or public ships, needs no statutory authority but is entirely justified under the law of necessity, for the protection of life and property, and for the manifest public good. =9. Finders.=--The person who finds property lost at sea, or cast upon the shore, is protected against the interference of third parties although he has no title against the real owner unless that owner had abandoned completely. Eads _v._ Brazelton, 22 Ark. 499, is an excellent opinion on this phase of the subject. The steamboat _America_, laden with a cargo of lead, had sunk in the Mississippi River in 1827. In 1854 Brazelton had discovered the wreck over which an island had formed and a forest grown, and commenced preparations for its recovery. He marked its position and placed buoys around it but was prevented from commencing operations until the next year. In the meantime Eads commenced operations on his own account and Brazelton sought an injunction to restrain him. The original owners did not appear or make any claim. Brazelton was held to have a good title as against any others than the owner on the ground that he was the first finder of an abandoned wreck. [31] These are common-law forms of action for the recovery of property or damage for its detention. CHAPTER XVI WHARFAGE AND MOORAGE =1. Definition.=--Wharves are structures made to facilitate and aid commerce and navigation and are essential to maritime affairs. They are classed as public and private and frequently regulated by local laws and ordinances. Wharfage means the use by the vessel of a wharf, pier or other landing place and also the compensation for such use; moorage is a practically similar term but may include the use of unimproved property by the ship while anchored or otherwise attached to the shore or lying in a slip. Private wharves are those which the owner has constructed and reserved for his own use but when they are legally thrown open to the use of the public, they become affected with a public interest; the keeping of such a wharf has been likened to inn-keeping or other quasi-public places and all seeking its use are entitled to accommodation at reasonable rates. =2. Right to Erect.=--The construction of wharves or piers upon navigable waters is usually governed by federal, state or municipal regulations and, unless appropriate authority is obtained, the erection of such a structure, projecting into the stream, will be unlawful and the person responsible for the obstruction may be liable for any damage resulting from its existence, and may be criminally liable to the federal government and subject to injunctive process for the removal of the structure. This remark does not apply to structures confined wholly to the shores and not projecting. The paramount authority to legislate with regard to wharves in navigable streams resides in Congress, which has enacted that no such structures shall be erected outside of established harbor lines, or where no harbor lines have been established, except by specific authority of the Secretary of War. The Secretary of War is empowered to establish harbor lines where he considers it essential (30 St. at L. 425). It has been held, however, that the power of Congress to regulate the use of navigable waters entirely within the limits of a State is not complete without the concurrence of the state legislature. In most communities located on navigable waters, there exists a corporate power, conferred by the legislature, to regulate wharves, piers and landings, and in pursuance of such power wharves and harbor lines are frequently established, in the absence of federal action establishing the same. =3. Duties of Proprietor.=--The owner of a wharf is bound to keep it safe and free from all defects which might injure persons or property using the same. While not an insurer he must use due diligence to make and keep it safe for the uses for which it was constructed or is employed. The analogy is that of the keeper of any structure commonly used by others for compensation and the obligation extends to all who rightfully come upon the premises for business purposes. Thus friends attending upon the arrival or embarkation of passengers, consignees of cargo, hackmen, and customs officers have recovered damages against the owner of a wharf for injuries sustained through its defective condition. So he will also be liable for injuries to vessels caused by rocks or other obstacles beneath the surface of the water or pikes projecting from the wharf. There is an implied warranty that the premises are safe and free from hidden obstructions. Frequent inspections are required in order to ascertain and repair such defects as may be engendered by its use, and if dangers are found to exist, he should close the wharf or give ample notice of its condition. These principles were invoked in the case of Onderdonk _v._ Smith, _et al._, 27 Fed. 874; where a scow and her cargo were sunk in consequence of being punctured by a spile which projected from the bottom of the slip directly under the place where the scow had taken her cargo. The respondent enjoyed the exclusive privilege from the owners of using the pier and the adjoining slip for shipping their coal and to that extent, although they were neither owners or lessees, had control and occupation of the premises. "They assumed the duty toward those whom they invited there for the transaction of business not to expose them to hazard from any defects in the condition of the premises known to themselves or which, by the use of reasonable diligence, should have been known." Their superintendent knew of the existence of the spile and they were, therefore, chargeable with notice, because about three weeks before the accident in suit another boat had been struck by the same spile. The Court said: If the scow had been injured by this obstruction while being loaded at the pier, or while going to it or away from it in the prosecution of the business which called her there, the case of the libellant would be clear. But the evidence is that her loading was completed at half past 4 o'clock in the afternoon, when the water was a little below high tide, and the accident happened about half past 9 in the evening, when the tide was low ebb; and if the scow had been removed from the place where she was loaded within a reasonable time after the loading was completed, she would not have been injured. When the tide went out, the scow settled down upon the spile, which projected about a foot from the bottom of the slip, and sufficiently far to puncture the boat at that condition of the water. * * * * * The only liability of the defendants grows out of their duty arising from their implied invitation to others to use the pier for the transaction of the business to which the pier was appropriated. Their invitation was spent when the boat's business at the pier was finished, and a reasonable time had elapsed to enable her to move away. After that she remained there at her own risk. It is not necessary to hold that she was there against the permission of the defendants, and therefore a willful trespasser; but, assuming that she was there without having obtained the permission of the defendant's superintendent, the defendants were not under any obligation to concern themselves for her protection. Under such circumstances, the law imposed no duty upon the defendants except the general duty which every man owes to others to do them no intentional wrong or injury. * * * * * Owners of private property are not responsible for injuries caused by leaving a dangerous place unguarded, when the person injured was not on the premises by permission, or on business, or other lawful occasion, and had no right to be there. One who thus uses another's premises cannot complain if he encounters unexpected perils. In Smith _v._ Burnett, 173 U. S. 430, a schooner while moored in berth at a wharf on the Potomac River for loading, was sunk by a submerged rock within the limits of the berth at the wharf, which the master was invited to take, the obstruction being unknown to the master and having been assured by the owners of the wharf, through their agent, that the depth of water in the berth in front of the wharf was sufficient and that the berth was safe for the loading of vessels. Chief Justice Fuller, discussing the English and American authorities said: Although a wharfinger does not guarantee the safety of vessels coming to his wharves, he is bound to exercise reasonable diligence in ascertaining the condition of the berths thereat, and if there is any dangerous obstruction, to remove it, or to give due notice of its existence to vessels about to use the berths. At the same time the master is bound to use ordinary care, and cannot carelessly run into danger. =4. Rights of Proprietor.=--The owner of a private wharf is entitled to compensation for its use by others or to reserve it entirely for his own accommodation. Riparian owners may construct and maintain, for their own exclusive use and benefit, private wharves on their own property, and, so long as they do use them, and refrain from giving them a public character, may deal with them as other private property. If a vessel is wrongfully moored to such a private wharf, the owner may cast it adrift and will not incur any liability if, in consequence of his act, the vessel becomes stranded and lost. In the interesting case of Dutton _v._ Strong, 1 Black 23, a vessel in peril running into a harbor in the night made fast to a pier, which was the private property of the riparian proprietor, without securing his permission. The force of the sea causing the vessel to pound and parts of the pier beginning to give way, the proprietor of the pier warned the master to leave. The master, believing that such a course would imperil his vessel, did not do so and the pier owner cast her loose, as a result of which she was so seriously injured that her master was obliged to scuttle her. The owner of the vessel brought action for damages. The court (Clifford, J.) said: Piers or landing places and even wharves, may be private, or they may be in their nature public, although the property may be in an individual owner; or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use; or he may be under obligation to concede to others the privilege of landing their goods, or of mooring their vessels there, upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend, in case of dispute, upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure. Undoubtedly, a riparian proprietor may construct any one of these improvements for his own exclusive use and benefit, and, if not located in a harbor, or other usual resting place for vessels, and if confined with the shore of the sea or the unnavigable waters of a lake, and it had not been used by others, or held out as intended for such use, no implication would arise, in a case like the present thus the owner had consented to the mooring of the vessel to the bridge pier. Accordingly it was held that: When it became obvious that the necessary effect of the trespass, if suffered to be continued, would be to endanger and injure or perhaps destroy the pier, the peril of the vessel imposed no obligation upon the defendants to allow her to remain and take the hazard that their own property would be sacrificed in the effort to save the property of the wrongdoers. On the contrary, they had a clear right to interpose and disengage the vessel from the pier to which she had been wrongfully attached, as the only means in their power to relieve their property from the impending danger. They had never consented to incur that danger, and were not in fault on account of the insufficiency of the pier to hold the vessel, because it had not been erected or designed as a mooring place for vessels in rough weather, and it was the fault of the plaintiffs or their agent that the vessel was placed in that situation. The proprietor of a private wharf may fix any rate he pleases for the use of such a wharf and those employing it, after due notice of the charge, will make themselves liable to pay it. This rule of private property, however, applies only to the purely private wharf and slight circumstances may be sufficient to give it a public character. It has, indeed, been held that where the wharf constitutes the only means by which the people of a community can reach the water and have the benefit of the means of commerce and navigation thereon, the structure is necessarily impressed with a public interest and may not be monopolized to the exclusion of others. =5. Wharfage Compensation.=--The compensation for the use of a private wharf depends on the bargain of the parties concerned. When there is an express contract, that will control; if the rate is published, the vessel impliedly promises to pay it when she uses the wharf; such publication may be by a sign or placard on the wharf or by any other method of conveying actual notice of the rate. Where there is no express agreement, or published rate, there is an implied promise to pay a reasonable compensation or customary charge for the use of the property. The same rule applies to cases of overlapping, where a vessel moored at one wharf projects over another to a greater or less extent. In the case of the Hercules, 28 Fed. 475, a tug 80 feet long habitually used a wharf of only 59 feet and so overlapped the adjoining wharf although she did not actually use it for loading or unloading. The proprietor gave a general notice that he would claim compensation and later filed his libel therefor. The court sustained his position, but, as no rate had been named, referred the matter to a commissioner to report on what a reasonable amount would be. In other than matters of private wharfage, the compensation is frequently regulated by local law. =6. Lien.=--There is a maritime lien upon a vessel for wharfage in all cases where the ship is foreign, and, by the weight of authority, this lien also arises in the case of domestic vessels. In all cases of domestic vessels, however, the States may provide liens for wharfage, by local statutes, and these will be enforced in the admiralty if the conditions of such statutes have been observed. It has, however, been rather generally held that this lien only attaches when the ship is actively engaged in commerce and navigation and can not be created when she is out of commission and laid up for storage purposes. So, in localities where navigation is closed during the winter months, it is said that there is no lien for winter wharfage and intimated that the proprietor should secure himself under his common-law lien by declining to surrender possession of the vessel until his charges are paid. The lien has also been given a high rank, under some decisions, and placed next after sailors' wages, although the propriety of this may seem open to question. It is inferior to a "preferred mortgage" given on an American ship pursuant to the Merchant Marine Act of 1920 (see Appendix). It is essential, of course, since the lien depends on contract, express or implied, that it should be treated by some one having due authority to pledge the credit of the ship. =7. Injuries to Wharves.=--Cases of collision between ships and wharves are very frequent and the damages caused thereby are a well recognized subject of marine insurance for which the underwriters agree to indemnify the vessel when it has been compelled to pay them. Damage to the wharf can not be recovered in the admiralty because the tort is not maritime; it is not consummated upon the water but on the land of which the wharf is a part. The wharf owner must, therefore, sue at common law or under local statutes; he has no maritime lien for the injury. On the other hand, the injuries received by the ship are consummated on the water and fall within the jurisdiction of the admiralty; the ship, however, can not libel the wharf because that is a fixed structure and not subject to maritime liens; its remedy is by a libel _in personam_ against the wharf owner. If the wharf is a lawful structure and the ship negligently runs into it, full damages may be recovered at law. Where the structure is unlawful, the ship may recover its damages, in whole or in part, as the fault may lie, in an admiralty proceeding. Atlee _v._ Union Packet Co., 21 Wall. 389, was a case where a barge was sunk by a collision with a stone pier in the Mississippi river which had been placed there without authority of law. The pilot of the barge was also at fault in assuming to take her through the channel without posting himself about the location of the pier. The proceeding was a suit in admiralty by the owner of the barge against the owner of the pier, and, both being considered in fault, the damages were divided. In connection with the subject of admiralty jurisdiction it should be noted that while it declines to take cognizance of the damages sustained by the owners of fixed structures from collisions with vessels, the shipowners, by filing a petition under the Limited Liability Act, may draw their claims into the admiralty and enjoin their actions at common law (Richardson _v._ Harmon, 222, U. S. 96.). Injuries are often sustained by docks and wharves when vessels make fast thereto in stress of weather and can not leave without exposing themselves to destruction. The rule is that the shipowner may not save his own property at the expense of the wharf-owner but must compensate him for the damage done by his ship, although the master had no alternative but to remain as he did. Vincent _v._ Company, 109 Minn. 456, is a decision in point, and Dutton _v._ Strong, 1 Black 23, should be read in the same connection. =8. Anchorage.=--The rights of navigation are usually paramount in all navigable waters and the right of anchorage is essential for a full enjoyment of such rights. These waters are, in many respects, like highways on the land, and there is a like privilege of stopping upon them, from time to time, as an incident to the right of travel thereon, subject to the reasonable requirements of traffic and the rights of abutting property. The right of passage extends to every part of the water, but the right of anchorage is confined to such places as are usual or reasonable, in view of local conditions. It does not imply the power to remain for long periods of time or to create a nuisance. Charges for anchorage may be made by the owner of the property used if it is an artificial one so that his work in improving or rendering it accessible forms a consideration for the amounts required. Generally, where only a natural roadstead is utilized in the course of navigation, it is no more subject to expense to the vessel than the temporary stopping of a vehicle upon a street. The vessel, being at anchor in a proper place and otherwise complying with law, is not liable for damages sustained by collision with it, but, obviously, will have a strong case against the ship which runs her down. She ought not to anchor in an exposed situation, except in cases of necessity, and then only as long as the necessity prevails. =9. Obstructions to Navigation.=--Anchored vessels, like wharves, piers and the like, may constitute serious obstructions to navigation but this does not give others the right to run them down. Approaching vessels are still bound to use ordinary care and skill to avoid them. It is the duty of a ship under way, whether the vessel at anchor be properly or improperly anchored, to avoid, if it be possible with safety to herself, any collision whatever, and the courts have frequently held that even if a ship is brought up in the fairway of a river, if the other could with ordinary care have avoided her, the latter will be held solely to blame. In the case of the Future City, 184 U. S. 247, a tug and tow descending the Mississippi River at New Orleans, upon rounding a point came in collision with several battleships of the United States Navy, anchored in line on swinging chains. It appeared that they had taken up these berths in the fairway for descending vessels contrary to the usage of the port and against the advice of the Board of Harbor Masters, who, however, had no authority over naval vessels. There was abundance of good anchorage elsewhere in the harbor. The Supreme Court held the Government liable for the negligent anchoring of the naval vessels and that the tug was not guilty of contributory negligence in being unable, after rounding the point, to check the headway which the current of the river imparted to the tow. The Court quoted with approval the language of Spencer on Marine Collisions: It is negligence for a vessel to moor so near the entrance to a harbor that shipping, entering in stress of weather, is liable to become embarrassed by its presence; and where the usual difficulties of navigation make the entrance to a harbor a dangerous undertaking, it is especially reprehensible for a vessel to moor in a situation tending to increase these difficulties. Where a vessel is at anchor in a proper place, and is observant of the precaution required by law, it is not liable for damages sustained by a vessel in motion colliding with it, but where it anchors in an unlawful position, or fails to observe the statutory requirements and such other precautions as good seamanship would suggest, it must suffer the consequences attending a violation of the law. In cases like these, the admiralty is inclined to follow the rule of the famous donkey case (Davies _v._ Mann., 10 M. & W. 546), where the owner of the animal had fettered its forefeet and, in that helpless condition turned it into a narrow highway; then the defendant's wagon came along very fast and carelessly and the donkey was crushed; the defendant had to pay for it because, if the driver of the wagon had been decently careful, the consequences of the negligence of the owner of the donkey would have been averted. Any vessel not "under way," as when aground, moored, or at a wharf, is in the position of anchored vessel and subject to similar rights and liabilities. CHAPTER XVII ADMIRALTY REMEDIES One of the reasons for the continued vitality of the admiralty lies in the efficiency of the remedies which it affords. If it were not for these it is quite possible that it would long since have been absorbed by the common law as was the law merchant many years ago. Parties having rights to enforce will usually resort to the admiralty in preference to any other court if the selection is open to them. This is not so much by reason of any difference in the law as in the methods of its application. Admiralty remedies may be divided into proceedings, _in rem_, _in personam_, and under the Limited Liability Act. =1. Proceedings in Rem.=--This procedure is peculiar to the American admiralty and does not exist in the common law. As the name indicates, it is directed against the thing itself to enforce property rights which inhere in it, mainly maritime liens. It belongs to the courts of admiralty exclusively and similar remedies attempted to be given by state statutes are unconstitutional and void. The characteristic feature of this proceeding is that the vessel or thing proceeded against is itself seized and impleaded as the defendant and is judged and sentenced accordingly. Sales made under it are good against all the world while at common law it is only the title of the defendant which is affected and the title conveyed can never be better than his own. The nature of the proceeding is more apparent when it is noted that the admiralty personifies the ship and considers her capable of incurring legal obligations entirely irrespective of her owner's personal responsibility therefor. There is no such doctrine in the common law. American courts of admiralty--that is to say, the United States district courts--take jurisdiction _in rem_ not only of domestic vessels but of ships flying foreign flags, and of controversies originating on the high seas and in foreign waters. The test is, whether the subject matter is within admiralty jurisdiction. The admiralty courts are not bound to take jurisdiction of controversies between foreigners, but they may exercise it in their discretion and frequently do so, applying the principles of international law or the _lex loci contractus_. In the exercise of their discretion to take jurisdiction of suits between foreigners, the courts give consideration to the wishes of consuls of the nations involved, though they are not bound to do so. The United States courts have jurisdiction _in rem_ for supplies furnished American ships in foreign ports and foreign ships in American ports. They may in their discretion take jurisdiction of claims for wages by foreign seamen against foreign ships in American ports, and, of course, of claims of American seamen against foreign ships. The principle upon which the court is to determine whether to exercise jurisdiction is whether the rights of the parties would best be served by retaining the cause or remitting it to the foreign court. Foreign governments sometimes own or operate merchant vessels, and a serious question arises, as yet undetermined by the Supreme Court, whether such vessels are, like naval vessels, exempt from maritime liens, or whether they are subject to the process _in rem_ of the admiralty courts. By the act of March 9, 1920, Shipping Board vessels are immune from arrest, but provision is made for suit _in personam_ against the government. Vessels of the Panama Railroad, although it is a government agency, are subject to suits _in rem_. =2. When Proceedings in Rem Will Lie.=--Generally speaking, every maritime lien includes the right to enforce it by a proceeding _in rem_. The person who has a maritime lien upon a vessel is entitled to proceed directly against her in a court of admiralty for the locality in which she happens to be. Thus in all suits by materialmen for supplies, repairs, or other necessaries; in all suits for mariners' wages, pilotage, collision, towage, hypothecation, bottomry, salvage, and the like, the process may be _in rem_. =3. The Libel.=--No process or writ can be issued by a court of admiralty before a libel is filed in the clerk's office. A libel is the statement of the party's claim and the relief or remedy which he desires. It states the nature of the cause, for example, that it is of contract, or of tort or damage, or salvage, as the case may be; the ship, or property, against which the claim is made and that it is, or soon will be, within the district; the facts upon which the claim is based; and the relief sought. For convenience, it should be expressed in concise paragraphs or articles, and, of course, must state a case within the jurisdiction of the court. =4. The Writ or Process.=--Upon a libel being properly filed in the office of a clerk of a district court of the United States, a writ of attachment is prepared and delivered to the marshal which commands him to arrest and take the ship, goods or other things into his possession for safe custody; and to cause public notice thereof, and of the time fixed for the return of the writ and the hearing of the cause, to be given in such newspaper within the district as the court shall order. It is then the duty of the marshal to obey the writ, arrest the property and give due notice according to law. =5. Owner's Rights.=--The owner whose vessel is seized in admiralty is entitled to release her immediately by giving a bond to secure payment of the libellant's claim. This bond may be in double the amount of the claim, or for such smaller amount as may be agreed upon between the parties, or for the appraised value of the ship. In practice, such bonds are usually arranged between the parties and their proctors[32] without the expense and delay incident to an actual seizure. It is not unusual to notify the owner of the commencement of the suit before process is issued and he will generally agree to appear and bond accordingly. This, however, is only courtesy and not a matter of right. At the same time the amount of the bond can be arranged and, when filed, the suit proceeds as if there had been an actual arrest and bonding. The bond takes the place of the ship for all legal purposes and she proceeds about her business entirely freed from the lien in suit. The owner must establish his status with the court by filing a claim. This is a formal statement on oath of his title to the property. If he desires to contest the libellant's demand, he must file an answer to the libel. The cause is then at issue and will be disposed of by the judge in due course. The time will depend largely on the parties. =6. Default.=--If the owner does not claim and bond his ship on the return-day named in the writ, the libellant may take his default. The court then investigates the demand _ex parte_ and makes an appropriate decree for the sale of the ship to satisfy the amount due. =7. Interlocutory Sales.=--When the property remains in the custody of the marshal and is subject to undue expense or risk of loss, the court may order its immediate sale for the benefit of all concerned. The proceeds are paid into the registry of the court and represent the ship for all purposes up to the time of the sale. The purchaser at such a sale, as well as at a sale under a final decree, obtains a clear and perfect title, if the proceedings have been in accordance with law. All claims and liens are relegated to the proceeds. =8. Intervenors.=--All persons legally interested in a ship are entitled to appear and be heard by the court when she is in the custody of a court of admiralty. Such are parties having other maritime liens upon her and mortgagees. Their claims are presented, pursuant to the public notice given by the marshal, by intervening libels or petitions and they are called intervenors. The form of such petitions is substantially like that of an original libel. Generally when an owner will not bond his ship, she has become heavily in debt and all her creditors will be obliged to intervene in the proceeding in order to protect their accounts. A sale is accomplished and the proceeds brought into court as soon as possible. Distribution is then made between the various lienors according to their rank and priority. Any surplus will belong to the owner and he may obtain it at any time before it is covered into the Treasury of the United States as unclaimed funds. =9. Costs and Expenses.=--These are largely within the control of the parties and become heavy only to the extent that the court is burdened with the care of the property or its proceeds. If promptly bonded, the necessary costs are very small. If the marshal remains in possession, his costs will include ship-keeper's charges and all other expenses which the situation occasions. If he sells, there will be his commission on the amount realized, 2-1/2 per cent. on sums under five hundred dollars and 1-1/2 per cent. on sums in excess; the clerk will be entitled to a commission of 1 per cent. for handling the proceeds. His other necessary costs are small. Where, however, there is prolonged litigation, the expenses may become very heavy, especially in respect of stenographer's accounts and the fees of commissioners to whom matters of detail may be referred. =10. Proceedings in Personam.=--Suits may also be brought against a defendant personally in the admiralty, where the subject matter is maritime and a personal liability exists. Such a liability always attaches to the person who made the contract or did the wrong for which the action is brought. In a few instances of maritime torts, like assaults and beatings on the high seas, the remedy is _in personam_ only. =11. Process in Personam.=--The writ here is usually a simple monition or summons to appear and answer the libel, like the ordinary writ in an action at law, but where the defendant cannot be found within the district, it may contain a clause for the attachment of his goods and chattels, or garnishment of his credits and effects. This proceeding is often very effective in obtaining security for the judgment when the proceeding _in rem_ cannot be employed. =12. Proceedings in Limitation of Liability.=--The shipowner is entitled to limit his liability on account of the ship to its value in many cases and the General Admiralty Rules promulgated by the Supreme Court provide a very valuable proceeding for this purpose. In substance, whenever an owner is threatened with a multiplicity of suits on account of damage done by his ship, or by a claim or claims in excess of her value, and he is not personally liable on such account, he may file a petition in the proper court and surrender the ship to a trustee or give a bond for her appraised value. All other suits are thereupon stayed and all creditors must present their claims in the proceeding which he has so instituted. In effect, it is a maritime bankruptcy by which the ship, or her value, is surrendered to creditors for _pro rata_ division and the owner goes free from further claims. It is the application of one of the underlying doctrines of the maritime law by which a shipowner, on abandoning the ship, can protect himself from further responsibility on her account. [32] In admiralty an attorney is called a proctor. The term is being generally abandoned. APPENDICES APPENDIX I SUMMARY OF NAVIGATION LAWS OF THE UNITED STATES JASPER YEATES BRINTON[33] I. SHIP REGISTRY 228 General 228 Registry and Nationality 228 Registry and the Flag 229 Registry and Ownership 229 Vessels Entitled to American Registry 229 Forms of Register, Enrollment and License 231 Restrictions as to Coastwise Trade 231 Procedure for Documenting Vessels 232 1. Presentation of Carpenter's Certificate 232 2. Surveyor's Certificate of Measurement 232 3. Securing and Marking of Official Number 233 4. Marking of Official Tonnage 233 5. Marking of Name and Home Port 233 6. Evidence that Number, Tonnage, Name and Home Port are Properly Marked 234 7. Owner's Oath 234 8. Master's Oath 235 9. Special Oath by a Corporation 235 10. Evidence of Outstanding Certificate of Inspection 235 Bill of Sale Not Required on Original Documentation 236 Surrender and Reissue of Documents 236 II. RECORDING OF BILLS OF SALE 237 III. PREFERRED MORTGAGES UNDER MERCHANT MARINE ACT 238 IV. CHANGE OF NAME 240 V. ENTRY AND CLEARANCE 241 VI. SHIPPING ARTICLES 242 VII. LICENSING AND QUALIFICATIONS OF OFFICERS 244 VIII. QUALIFICATIONS OF SEAMEN 245 Age 246 Service and Physical Qualification 246 Lifeboat Men 246 Language 246 IX. NATIONALITY OF OFFICERS AND CREW 246 Officers 246 Crew 247 X. WAGES 247 Advances 247 XI. WATCH AND WATCH AND WORK-DAY 248 XII. PROVISIONS FOR CREW 249 Sleeping Quarters 249 Washing Places 249 Provisions Scale 249 Hospital Accommodations 250 Warm Room and Woolen Clothing 250 XIII. PERSONAL INJURIES TO SEAMEN AND RECOVERIES FOR DEATH 250 XIV. OFFENSES BY SEAMEN 251 Mutiny, Desertion and Disobedience 251 Miscellaneous Offenses 252 Assistance in Case of Collision 252 XV. RULES OF THE ROAD 253 XVI. PILOTAGE 253 XVII. LENGTH OF HAWSERS 254 XVIII. INSPECTION OF STEAM VESSELS 255 Barges 255 The Certificate of Inspection 255 Manning of Inspected Vessels 256 XIX. REGISTER TONNAGE 256 XX. TONNAGE TAXES 257 XXI. NAVIGATION FEES 258 XXII. ANNUAL LIST OF MERCHANT VESSELS 258 XXIII. NUMBERING OF UNDOCUMENTED MOTOR BOATS 258 XXIV. ADMINISTRATION OF NAVIGATION LAWS 259 Commissioner of Navigation 259 Steamboat Inspection Service 259 Shipping Commissioners 260 XXV. THE SHIPPING BOARD 260 SUMMARY OF THE NAVIGATION LAWS OF THE UNITED STATES While the navigation laws of the United States are in many respects the most advanced and progressive of any in the world, the form in which they exist is far from satisfactory and is a serious handicap on their usefulness. They are voluminous and complicated and in much confusion. Even on comparatively simple topics it is often impossible to distinguish the law of to-day from the law of yesterday. The reason is not hard to find. It lies in the fact that these laws represent one of the oldest bodies of statute law in the books, and for well over a century have been subject to a steady piecemeal amendment, but with little or no attempt at revision or codification. The result is that on almost every subject there is a bewildering overgrowth of laws--law after law covering and partly modifying, but seldom explicitly repealing, the older law, which thus remains as a stumbling block to even the expert reader. A complete revision is urgently needed and has been undertaken by the Shipping Board. In the meantime, it is of course desirable that knowledge of the laws as they exist shall be made as conveniently accessible as possible and the summary herewith is presented as a contribution towards that end. It does not pretend to be either complete or exhaustive, but merely undertakes to cover very generally the principal topics, with a somewhat more extended reference to the practical aspects of ship registry as embodied not only in the laws but in the regulations and practices which have grown up around them. Most of the statutes which have been summarized herein except the recent Merchant Marine Act (Jones Bill) and other laws of this year will be found in the 600 page compilation of the Navigation Laws (1919) prepared with the thoroughness and accuracy to be looked for from any work issued under the direction of the present Commissioner of Navigation. It may be procured from the Superintendent of Documents, Washington, at the cost of one dollar. Subject to the obvious limitations on any compilation which must necessarily include a large body of conflicting and practically obsolete statutes, the work is in every respect admirable. The volume, however, is confined to statute law, and for much of the practical information covering those branches of operation of ships involving the agency of the customs service, including the documentation of vessels, reference must be had to the Customs Regulations, the last edition of which was published under date of 1915, and which may also be secured from the Superintendent of Documents. In addition to these two principal compilations reference should also be made to the series of Rules and Regulations of the Board of Supervising Inspectors, issued by the Steamboat Inspection Service, Department of Commerce, to the various publications of the Department covering the Rules of the Road, the International Rules, the Inland Rules, and the Pilot Rules, respectively, together with the notable series of pamphlets issued by the Department from time to time, covering such special subjects as the Measurement of Vessels, the Comparative Study of Navigation Laws of the Maritime Nations, and other similar topics. So far as the writer is aware, however, there is no volume which contains any general summary of the whole body of our navigation laws. I. SHIP REGISTRY =General.=--Under the power to regulate commerce Congress, among its earliest enactments, adopted a system of ship registry for American-owned bottoms and created the class of vessels to be known as "vessels of the United States." The purpose of establishing this system was the double one of encouraging domestic commerce and of building up our national defense. It did not require and (with certain war-time exceptions) has never required that American-owned ships should be registered, but by imposing prohibitory penalties on foreign trade in American-owned vessels which are _not_ registered, and by closing the coasting trade entirely to all except American-owned vessels (or vessels operating during war time under special permission of the Shipping Board) it made the securing of appropriate documents--a register--an enrollment and license--or a simple license, as the case may be,--a practical necessity for American-owned vessels engaged in American trade. In passing it is to be noted that while a ship's registry is a special document, distinguished from the enrollments and licenses of smaller vessels, the word _registry_ is commonly used as covering generally all three classes of documentation. =Registry and Nationality.=--While vessels, like citizens, are commonly said to have a nationality, their _nationality_ is not necessarily a matter of _registry_. Nationality means rather--To what country does the ship in fact belong and to whose protection is she entitled? As far as the United States is concerned this nationality--this right to protection--depends upon _ownership_. Therefore, if a ship is actually owned by American citizens, her nationality is American, and she is entitled to the protection accorded to American property all the world over, regardless of the fact that for any reason she may not be entitled to, or may not desire to take, American registry. =Registry and the Flag.=--In the same way, the right to fly the American flag is not dependent upon American registry, but upon American ownership. The flag is only the symbol of nationality and of a right to protection. It is the signal to other vessels at sea--conveying information as to nationality, just as her other signals are used to convey the name of the private owner or of the line to which she belongs. It follows that the American flag may be flown upon any vessel owned by American citizens. For many years vessels of this character flying the American flag have been familiar in the trade in the Far and Near East. The rule as to the use of a flag is somewhat different and more strict in England. Under the Merchant Shipping Acts the use of a British flag on board a ship owned either in whole or in part by persons not lawfully qualified to own a British ship, subjects the vessel to forfeiture. But there are no such provisions in the law of the United States and questions as to the improper use of the flag of this country upon vessels have not arisen, although occasional diplomatic negotiations have been undertaken to prevent the use of the American flag in foreign countries. Generally speaking it may be said that the United States has been extremely lax in regulating the use of her flag. =Registry and Ownership.=--Just as registry is not necessary to give nationality, with its corresponding right to protection, so it is true that the transfer of title to ships is not dependent upon its registry laws. While title to a ship must be passed by bill of sale, this does not depend upon any requirement of the United States law, but arises out of the general maritime law. It is only in the case of ships that are to be registered or enrolled that it is necessary that the transfer be made according to the particular and very specific form prescribed by the registry acts. =Vessels Entitled to American Registry.=--Under the early ship registry acts, and for a period of over 120 years, American registry was confined to American-built ships. Such alone were "deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels." As already noted, these privileges were, in effect, the right to engage in American trade. In 1892, a special act was passed granting American registry to certain foreign-built vessels of the American Line under conditions as to the building of other vessels, but this was a special and very limited proviso. The Panama Canal Act of 1912, however, made a radical change in our policy and opened American registry to foreign-built vessels not over five years old, owned by American citizens, although denying to these vessels the privilege of entering the coasting trade. The Ship Registry Act of 1914 went a step farther and removed the limitation as to age, and also authorized the President to suspend, as to these vessels, the rigorous provision that the watch officers of all vessels engaged in foreign trade should be citizens of the United States. This authority was exercised by the President and many such vessels have been registered. In 1915 a law was passed to facilitate the transfer of American-owned vessels from foreign to domestic registry by a repeal of the prohibitory duties on such vessels on condition that before leaving an American port they should secure the necessary documentation. The Shipping Act of 1916, as amended in 1918, and again by the Merchant Marine Act of 1920, further enlarged the scope of the registry laws by providing that vessels (whatever their previous history) purchased, chartered or leased from the Board by citizens of the United States may be registered, or enrolled and licensed, or both enrolled and licensed, as vessels of the United States and entitled to the benefits and privileges of such documentation. The various classes of vessels now entitled to registry under these laws may be thus divided: (1) American-built vessels which have always been American-owned; (2) American-built vessels formerly owned by foreign owners, but subsequently purchased by American citizens; (3) Vessels captured in war lawfully condemned and owned by citizens; (4) Vessels forfeited for breach of the laws; (5) American-built vessels sold by the government to citizens, and foreign-built vessels bought or chartered by the government and sold to citizens; (6) Vessels whose documentation is authorized by special act; (7) Wrecked vessels purchased by citizens and repaired in American shipyards on proof that the repairs are equal to three times the appraised salved value; this is a special permission which is a dead letter except as to the coastwise trade, as wrecks can now be admitted to registry for foreign trade regardless of the amount of repairs; (8) Vessels for foreign trade wherever built, wholly owned by citizens of the United States; (9) Vessels purchased, chartered or leased from the Shipping Board by citizens of the United States. Barges, lighters and other boats provided with sails or internal motive power, if falling within these classifications, are entitled to documents, as also barges and boats without sails or internal motive power engaged in the Canadian trade or employed upon the marine waters of the United States or engaged in the carriage of passengers. The following classes of vessels are not within the provisions of the registry laws and therefore require no documents: (1) Boats or lighters not masted, or if masted and not decked, employed in the harbor of any town or city and not carrying passengers. (2) Barges or canal boats or boats without sails or internal motive power employed wholly upon canals or on the internal waters of the state and not engaged in trade with contiguous foreign territory and in carrying passengers; (3) Barges or boats without sail or motive power, plying on inland rivers or lakes of the United States, also not engaged in trade with contiguous foreign territory and in carrying passengers; (4) Vessels plying waters wholly within the limits of the state having no outlet into a river or lake on which commerce with foreign nations or among the states can be carried on. =Forms of Register, Enrollment and License.=--The Law provides for three classes of documents; (1) A Register; (2) An Enrollment and License; (3) A License. Originally the license, which is applicable only in the coasting trade, was an altogether separate document from the enrollment, the form of each document being provided by statute. In 1906, however, the two documents were consolidated into one, so far as enrolled vessels were concerned, leaving the license only to be required in the case of smaller vessels. As the law now stands these documents are distinguished as follows:-- _Registry_ is _required_, for vessels engaged in the foreign trade and in the trade with our insular possessions, except Hawaii and Porto Rico, and is _permitted_ to vessels engaged in the domestic trade under certain requirements as to entry at the Custom House when laden with certain commodities, etc. There is but a single form of register. _Enrollment of License_ is _required_ for vessels of twenty tons or over when engaging in the coasting trade. Separate forms are issued for the coasting trade or fisheries, and for yachts. _License_ alone is _required_ for vessels between five and twenty tons when likewise engaged in the coasting and fishing trade. Vessels of less than five tons may not be licensed, nor may pleasure vessels of less than sixteen tons be documented except under special instructions from the Department of Commerce. In general form and purpose these documents closely resemble each other and further consolidation and simplification is badly needed. =Restrictions as to Coastwise Trade.=--From 1817 until the recent war the coastwise trade of the United States was limited to vessels of the United States. This restriction, however, was removed by the shipping Act of 1916. Under this act (§ 9) the Shipping Board was authorized generally (with certain very limited exceptions) to purchase, lease and charter vessels suitable for its purposes, regardless of whether foreign-built or not, and also to sell and charter the same to citizens of the United States, such vessels being entitled to American registry. As to all such vessels the Act specifically provided that they should be permitted to engage in the _coastwise_ trade. This privilege was also extended to vessels owned, chartered or leased by the Emergency Fleet Corporation (see § XXV, below). In addition, under an act passed in 1917, the Shipping Board was given authority in its discretion to permit vessels of _foreign registry_, and foreign-built vessels which had been admitted to American registry under the Act of 1914, already referred to, to engage in coastwise trade during the war, and for three months thereafter. This latter act has been in terms repealed by the Merchant Marine Act of 1920, but with the proviso (§ 22) that all foreign-built vessels admitted to American registry, which were owned on February 1, 1920, by citizens of the United States, and all foreign-built vessels owned by the United States on the date of the signing of the Act (June 5, 1920), when sold and owned by citizens of the United States, may engage in the coastwise trade so long as they continue in such ownership. The general policy above outlined is supplemented by a further proviso of the Merchant Marine Act (§ 27) forbidding the transportation of merchandise between points in the United States, or such of its possessions as are subject to the operation of the coastwise laws, in any other than documented vessels of the United States, owned by citizens of the United States, except in the case of the vessels to whom the privilege has been extended by the provisions above referred to. =Procedure for Documenting Vessels.=--Marine documents are issued by the Collectors of Customs for the various collection districts, one district frequently including several ports. The District of Philadelphia, for instance, includes Camden, Gloucester City, Chester, Somers Point, Tuckerton, Thompson's Point, Wilmington and Lewes. Practically each step in the process of securing the ship's papers is marked by the production or issuance of one or other of a number of important documents. These steps are as follows: _1. Presentation of Carpenter's Certificate._--The Carpenter's Certificate, sometimes referred to as the Master Carpenter's Certificate or Builder's Certificate, is the starting point of the vessel's official status in the eyes of the government, and is the first document to be produced before the Collector. It is the vessel's birth certificate, and is required in order to fix the origin of the vessel, to secure and place on record the best evidence as to the date and place of its building, the name of its builder, and its general description, given under the oath of the builder. For the purpose of this certificate the time of building is the time of completion; the place of building is that where the hull was built. Both of these facts must appear on all marine documents. The Carpenter's Certificate is not a document of title and does not of itself vest any interest in the person holding it. It is sufficient to authorize the vessel to be removed from the district where she has been built to another district in the same or an adjoining State where its owner resides, provided it be in ballast only. This document is filed of permanent record in the Custom House where the vessel receives her papers. The difficulties frequently encountered in the way of securing the certificate of the builder himself have led to the adoption of a regulation permitting other competent evidence establishing the same facts, subject to the approval of the Commissioner of Navigation. _2. Surveyor's Certificate of Measurement._--The measurement of the boat contained in the Carpenter's Certificate not having been made by a government officer, is not an official measurement. It is therefore specifically required that there shall be produced a certificate of such an official measurement made, prior to every registry, by the Surveyor of Customs or by some person appointed by him, at the port where the vessel is, or if there be no such officer, by some one appointed by the Collector. The Surveyor is the "outside man" in the Custom House administration, the official who superintends and directs the inspectors and weighers, who visits all vessels as they arrive in port each day, and who incidentally is charged with this particular duty of measuring vessels for register. His certificate of measurement is required to show not only the measurement of the vessel, i.e., length, breadth, depth, etc., but her build, her tonnage, number of decks and masts. It is also required to state that the vessel's name and the place to which she belongs are painted on her stern. Once measured, it is not necessary that the vessel shall be measured again upon each successive register. Like all the other documents incident to the registration of the vessel, the form of this document is provided by the government and must be countersigned by an owner, or by the master, or by the owner's agent. _3. Securing and Marking of Official Number._--The Secretary of Commerce has been authorized to provide a system of numbering all documented vessels. An application for such number must be made through the Collector of Customs by the master or owner. Each vessel so numbered must have her number "deeply carved or otherwise permanently marked on her mainbeam," preceded by the abbreviation "No." Prior to 1866 the penalty for the violation of this requirement was the severe one of forfeiting her status as a vessel of the United States. To-day the penalty is a fine of $30 upon every arrival of the vessel in a port. _4. Marking of Official Tonnage._--The law also requires that the net tonnage of a vessel shall be deeply carved or otherwise permanently marked on her mainbeam. This tonnage--representing the entire cubic contents of the interior of the vessel, excluding the spaces occupied by the crew and the propelling machinery, and known as the "registry tonnage" or "register tonnage"--is defined by elaborate provisions of a law passed in 1864, which has been several times amended. It is fixed in the first instance by the surveyor or other officer measuring the boat. _5. Marking of Name and Home Port._--The law requires that the name of the vessel shall be marked upon each bow and upon the stern, and that the home port shall also be marked upon the stern. These names may be painted or gilded, or they may consist of cast or carved Roman letters in a dark color on a light ground, or in a light color on a dark ground, secure in place, distinctly visible, and not less in size than four inches. Originally the names of vessels were required to be in white on a black ground. In 1875 yellow and gilt letters were permitted. The rule as we now have it dates from 1891. The penalty for violation of this law is $10 for each name which is omitted. In addition to this, every steam vessel of the United States is required to have her name conspicuously placed in distinct, plain letters not less than six inches high, on each outer side of the pilot house, and in case the vessel is a side-wheeler, then also upon the outer side of each wheel-house. "Double-enders" may place the names on the parts corresponding to the bow and stern; and on vessels whose sterns do not allow sufficient space for lettering, the letters may be placed on adjacent parts so as to conform as closely as possible to the requirements, and provided always that the home port shall be marked at _one_ end of the vessel. Scows, barges and other vessels with square bows may be marked on the bow instead of the side, where such marking would be speedily worn out by chafing against other vessels. The "home port" as required to be marked on the stern of the vessel, may mean either the _port_ where the vessel is documented, _or_ the place in the _same_ district where the vessel was _built_, _or_ where one or more of the _owners reside_. From this it follows that the home port need not be the port of documentation, for, as already noted, the law is that the vessel must be _registered_ in the district which includes the port to which the vessel at that time _belongs_, such port being defined by law as that at or nearest to which the owner, or if there be more than one, the managing owner of the vessel, usually resides. Questions as to what is a vessel's "home port" frequently arise in connection with contracts for repairs and supplies and liens arising from the same. As will be seen the port of registry and the home port may often be quite different places. _6. Evidence that Number, Tonnage, Name and Home Port are Properly Marked._--The Surveyor's Certificate under the form now in use should have covered all of these various points. However, if for any reason they have not been so covered, as for instance, if the vessel is out of the district in which she is being documented, the law requires that evidence be produced by the owner that all these requirements have been complied with. Thus, if the vessel is elsewhere, the owner may make an affidavit that the necessary has been done, but as soon as the vessel arrives within the vessel's home district, where the inspection certificate of a customs officer can be secured, such a certificate must be produced. _7. Owner's Oath._--Before a vessel can be documented, the owner, or an officer or agent of the owner, whether individual or corporate, must make an affidavit disclosing the general facts as to the ownership of the boat, giving the names of its various owners, their proportions of ownership, and the citizenship of each of them, etc. It must also include a statement as to the name and tonnage of the vessel, and the place and nature of her construction. This oath is an absolute requirement, and if the vessel is documented without it, the document is void, and the vessel is not entitled to be considered a vessel of the United States. It is also required that the owner's affidavit shall name the master of the vessel together with a statement that the master is a citizen, with a note of the means whereby he acquired his citizenship. The person thus named by the owner is thereby deemed her master for all legal purposes, regardless of the question of his competency, or as to who actually commands the vessel, but no name of a master who has not the necessary license to command a vessel of the class in question will be accepted by the Collector. Thus, while in the case of a _barge_ any citizen may be _named_ as the master, or one citizen may be named as master for any number of barges, in case of a tug or larger vessel requiring a licensed master, the person named as master must be licensed and qualified to perform this duty. This, however, is entirely irrespective of whether he has in fact assumed or does in fact assume actual command over the vessel. For such purposes the command may be a nominal one. The importance of this document is illustrated by the fact that the penalty for a statement knowingly false is a forfeiture of the vessel, or of its value, to be recovered from the person by whom the oath was made. _8. Master's Oath._--In addition to the oath of the owner as to the name and qualification of the master, it is specifically required that if the master is within the district where the registry is made at the time of application for it, an oath must be taken by _him_, instead of by the owner, covering his citizenship. In the case of a false oath by the master the vessel is not forfeited, but the master is liable to a penalty of $1,000. Every change of master must be reported at the first port and indorsed on the document. _9. Special Oath by a Corporation._--Under recent legislation a special oath is required in the case of corporations, covering any question of a possible foreign interest in the corporation. This oath must set forth "that the controlling interest in the said company free from any alien trust or fiduciary obligation, or any understanding that it may be exercised directly or indirectly on behalf of any alien, is owned by citizens of the United States, and that the President and Managing Directors are citizens of the United States and that the corporation is organized under the laws of some particular State". _10. Evidence of Outstanding Certificate of Inspection._--It is specifically forbidden to issue a ship's document on any vessel subject to the inspection laws until a copy of the certificate of inspection as issued by the Local Inspectors, has been filed with the Collector of Customs. If the original certificate is not available, a certified copy can always be secured from the office of the proper Collector of Customs. =Bill of Sale Not Required on Original Documentation.=--The foregoing completes the steps or documents necessary for the original registration of a vessel. It will be observed that no reference has been made to a bill of sale. This is because no such bill is required by law to be produced at the first registration. In fact the only bill of sale recognized by statute is a bill which _itself_ contains a copy of the ship's document, and therefore such a bill could not be produced before the registration had actually taken place. All that is required in the first instance, therefore, is the Carpenter's Certificate with the affidavits as to ownership, etc. These documents are taken as establishing the ownership, and laying the foundation for registry in a particular name. However, the bill of sale may be actually in existence, having been given either by the builder himself or by some one who had subsequently acquired title to the vessel before her documentation. In such case the bill of sale should be produced to complete the chain of title, and will be retained at the Custom House with the Carpenter's Certificate as a link in the chain. But it will not be recorded, for the law makes no provision for the recording of bills of sale except in the sense of transfers of documented vessels, as hereafter referred to. =Surrender and Reissue of Documents.=--The foregoing summarizes the steps to be followed in the case of an _original_ registration. But on every change in the status of the vessel a new registry must be secured, and the vessel must be documented anew. This is the case where a vessel is _sold_ in whole or in part to a citizen of the United States, or where it is _altered_ in whole or in part, by being rebuilt or lengthened or built upon, or is changed from one classification or denomination to another, by alteration in its mode or method of rigging or fitting. It also applies to the case of a change of name as hereafter referred to, and, in case of corporations, to the death of the officer in whose name vessel is documented. It should be borne in mind that the penalty for failure to effect such a new registration is the severe one that the vessel shall cease to be considered a vessel of the United States. No time limit for the accruing of this penalty, however, has been fixed by law. In case of such new registration the process is the same as above outlined, but omitting the earlier steps relative to the measurement and marking of vessel, official number, etc., all of which are certified to by the previous document. In the case of the _sale_ of the vessel, it is of course the bill of sale that furnishes the foundation for the transaction, which must be accompanied by the owner's and master's oaths as already outlined. The bill of sale, as the all-important and indispensable document, must be made to comply strictly with the requirements covering registry, the most important of which is that it will recite at length the last previous certificate issued to the vessel. This proviso is of great importance in England. The inaccurate recital of such a certificate voids the sale entirely. In the United States the penalty is not so severe, but still severe enough, as the ship is deprived of her American character. The bill of sale when produced is recorded in the office of the Collector of Customs in accordance with the law hereinafter referred to, and is returned to the owner producing it, as in the case of any other bill of sale which the owner may desire to have recorded. It frequently happens that it becomes necessary to secure new documents for a vessel which is distant from the port where her new owners reside, and where it is desired that she shall be documented. In such case it is often impractical at the time to secure the outstanding papers for surrender. The practice is to secure certified copies of the same either from the office of the Collector where they were issued or from the office of the Commissioner of Navigation at Washington, giving the necessary oath for the production of the original documents when they come to hand. It also frequently happens that the certified copies, or indeed sometimes the original documents themselves, do not bear upon their face, as they should, a notation as to the date of expiration of the certificate of inspection of the vessel. In this case some evidence of an outstanding inspection must be produced to the Collector. The simplest plan is to secure, by wire if necessary, a statement from the appropriate Collector of Customs that such an inspection is outstanding. The law is very strict on the surrender of the old documents upon the issuing of new ones, as also in those cases where a ship loses her right to continue as a vessel of the United States. The old law, passed in 1792, provided for the giving of a bond by the ship's husband or the acting or managing owner, varying in amount according to the tonnage of the boat from $400 to $2,000, guaranteeing that the registry should be used only for the vessel for which it was granted, and should not be sold, lent or otherwise disposed of, and that in case the vessel were lost or taken by an enemy or otherwise prevented from returning to the port, the certificate, if preserved, should be delivered up within eight days of her return to port, etc. The present law substitutes for this bond a penalty of $500 and declares the Certificate of Registry to be void after a violation of any of the requirements as to its surrender. It frequently happens that a document is lost or wrongfully withheld from the possession of the owner. In this case, upon the oath of the master or other person having charge of the vessel, a new document may be issued either temporary in form, if the vessel is out of her own port, or permanent, if she is in her own port. II. RECORDING OF BILLS OF SALE The present law on the subject of recording bills of sale is included in the general mortgage provisions of the new Merchant Marine Act, under which it is provided that no sale of a vessel shall be valid against a ship unless the bill of sale is recorded by the Collector of Customs in an official register, which is required to show (1) The name of the vessel; (2) The names of the parties to the sale; (3) The time and date of receiving the bill of sale; and (4) The interest in the vessel so sold. It is also provided that no bill of sale can be recorded unless the interest of the grantor in the vessel is stated, also the interest sold, nor unless the bill has been acknowledged before a notary public or other officer authorized to take acknowledgements. In the case of a change in the port of documentation, no bill of sale may be recorded at the new port unless a certified copy of the record of the vessel at the former port is furnished by the collector of that port. III. PREFERRED MORTGAGES UNDER MERCHANT MARINE ACT The law in regard to ship mortgages is highly technical and reference only will be made here to the general provisions of the Merchant Marine Act which makes far-reaching changes in the existing system in an effort to give added value to mortgage security on a ship, a form of security which heretofore has been of very limited value on account of the subordination of the mortgage, which is not a maritime contract, to all maritime liens, whether arising out of contract or tort. The present law gives to a duly recorded preferred mortgage priority except as to (1) liens arising prior to the recording of a mortgage in strict conformity to the provisions of the act; (2) liens for damages arising out of tort; (3) liens for wages of stevedores when employed directly by the owner, operator, master, ship's husband or agent of the vessel; (4) liens for wages of the crew of the vessel; (5) liens for general average; (6) liens for salvage, including contract salvage; and (7) court costs and expenses. If a mortgage covers a ship of over 200 gross tons the material facts regarding it must be endorsed on the ship's papers. There must also be filed an affidavit that the mortgage was made in good faith, without the intent to delay or defraud. It must appear that the mortgagee is a citizen of the United States and that the mortgage does not stipulate that the mortgagee waives its preferred status. If the mortgage includes property other than a vessel it must provide for the separate discharge of such property by the payment of a specified amount, and if it includes more than one vessel it must similarly provide for the separate discharge of each vessel on the payment of a specified amount, in default of which, the court, in a suit on the mortgage, is to determine the proportionate charge. Two certified copies of every preferred mortgage are to be delivered by the collector to the mortgagor, who is required to use due diligence to retain one copy on board the vessel, and to cause it and the ship's documents to be exhibited by the master to any person having business with the vessel which may give rise to a maritime lien or to the sale of the vessel. Upon request, the master is required to exhibit to such person the ship's documents and this copy of the mortgage. Upon request of the mortgagee, the mortgagor is required to disclose in writing, before the execution of any preferred mortgage, the existence of any maritime lien prior to the mortgage, that is known to the mortgagor, and, without the consent of the mortgagee, the mortgagor is forbidden, after the execution of the mortgage and before the mortgagee has had reasonable time to record the mortgage and have the necessary endorsements made, to incur any obligations creating liens on the vessel other than those for wages, for general average or for salvage. The law permits the preferred mortgage to bear any rate of interest agreed to by the parties. It provides severe penalties upon the master for failing to exhibit the ship's documents or the copy of the mortgage, when demanded, and permits local inspectors to suspend or cancel the master's license for any such violation. As to the mortgagor who fails to make disclosure of liens already referred to, or who incurs new liens with attempt to defraud, the law provides a maximum fine of $1,000 and imprisonment for two years, and makes the mortgage then immediately payable. It also subjects the collectors of customs and the mortgagor to personal liability for loss occasioned by their failure to perform their duties under the act and opens the federal courts to such suits. Under the same act jurisdiction of all suits to foreclose a preferred mortgage is vested exclusively in the District Courts of the United States. Authority is also given to bring suit _in personam_ in the admiralty, in the United States District Courts, against the mortgagor. The surrender of the documents of mortgaged vessels without the approval of the Shipping Board is prohibited, and the Board is directed to withhold such approval unless the mortgagee consents to the surrender. By resolution of the Board this law is interpreted as not applying to cases in which owners merely renew licenses or change documents incident to change of trade and where the ownership remains the same. Elaborate provisions are also to be found covering the formal procedure in case of sales of mortgaged vessels, together with a provision that no rights under a mortgage shall be assigned to any person not a citizen of the United States without the approval of the Board, and that no vessel shall be sold in a suit in the admiralty to any person who is not a citizen. The legality of the provisions conferring upon the federal courts the right to enforce mortgage liens which are of a nonmaritime character, is much debated and must await final decision by the Supreme Court. If the court should decide against the legality of these provisions serious and difficult questions will be presented as to whether the act as it now stands will be effective to give preferred status to such a mortgage, under the radically different procedure which must then be resorted to. The act also revises the law on the subject of the creation of maritime liens for necessaries. It provides that persons furnishing repairs, supplies, towage, etc., on order of the owner or an authorized agent shall have a maritime lien on the vessel without being required to prove the credit was given to the vessel; defines the persons who are to be presumed to have authority from the owner to procure repairs, etc., including the agents of a charterer; and permits the waiving of such liens by those furnishing the supplies or services, subject to certain existing specified rules of law. IV. CHANGE OF NAME The American law has always been very strict in regard to changing the names of vessels. Such change can only be made by the Commissioner of Navigation, and if made _by_ the master or owner or agent of the vessel subjects the vessel to forfeiture. Since 1881 the Secretary of the Treasury, and later, the Commissioner of Navigation, has been authorized to permit the change of names of vessels "duly enrolled and found seaworthy and free from debt." Under this law it became necessary to secure a special act of Congress, which was frequently done, to change the name of a mortgaged vessel. To cure this defect the law of February 19, 1920, which took effect thirty days after its passage, provides for a change of name _by_ the Commissioner of Navigation upon compliance with regulations issued by him. All that is required in the first instance is a duplicate application by the owner, addressed to the Commissioner of Navigation and forwarded to him through the Collector of Customs at the home port of the vessel, which is required to state the change desired, the reasons in support of it, place of build, official number, rig, gross tonnage, and the owner's name. It must also include a detailed list of liens of record from all custom houses where the vessel has been previously documented, together with the consent in writing of the mortgagee or other beneficiary under each lien to the change desired. To this the Collector of Customs, forwarding the application, must add his certificate as to liens on record in his office, and must also state the date and place of last inspection, a requirement which presupposes the presentation to him of satisfactory evidence of the vessel's inspection, that is, either the original certificate, or a certified copy of it, or a statement from the office of the Commissioner of Navigation at Washington that such a certificate is outstanding. In the case of vessels not usually inspected, as, for instance, barges, inspectors are authorized to make special examinations at the owner's expense and to furnish a certificate of the seaworthiness of the vessel, the object of course being to prevent old and unseaworthy vessels from concealing their condition and antiquity by a change of name. After the application has been passed by the Commissioner and permission has been granted, it is required that the change shall be published in a daily or weekly paper nearest to the port of documentation in at least four consecutive issues, the cost of procuring the evidence and of publication to be paid by the applicant. The permission for change is not effective until this fee is paid. Upon its payment the issuance of a new document is then required, which presupposes the production, as in other cases, of the owner's affidavit, and of the master's affidavit, as already explained. The Collector thereupon records the change of name in his prescribed reports and the transaction is completed. Vessels formerly documented and which have been sold to the United States and resold to citizens, must be documented under the old name and official number, but vessels never before documented and sold by the United States to citizens, may be redocumented under any name selected that is approved by the commissioner. In forwarding the application for change of name the Collector of Customs is required to submit his recommendations giving any reasons for or against the change. The usual reasons in support of a change are a desire on the part of the company to carry out some established policy in the naming of its vessels, or a desire to shorten or lengthen a name, as the case may be. The fee required is prescribed by law upon a sliding scale from $10 to $100, according to gross tonnage, the former figure being for vessels of 99 gross tons and under, and the latter for vessels of 5,000 gross tons and over. V. ENTRY AND CLEARANCE Whether or not a vessel is required to enter and clear depends, first, upon whether she is registered, and second, upon her tonnage and the service in which she is engaged. _All_ vessels under _registry_ (as distinguished from vessels enrolled or licensed) are required to enter and clear at every port, except when bound from a point in one state to that of an _adjoining_ state. If _not_ registered the question depends in the first instance upon the size of the vessel. The law, as inherited from the early days, when smuggling was frequent in small vessels, and it was considered important to keep them under close supervision, makes a distinction between vessels under twenty tons and those above that tonnage. If _under_ 20 tons (and properly documented, that is licensed) and laden wholly with American goods, or with foreign goods in packages as imported not exceeding $400 in value, or of aggregate value not over $800, they may trade from a customs district in one state to a customs district in the same or an adjoining state, without entering or clearing. But if _over_ twenty tons, such vessels are permitted to trade, without entering or clearing, from one customs district in the same Great District to another in the same Great District, or from a State in one Great District to an adjoining State in another Great District: Except as thus provided _all_ vessels engaged in the coasting trade must enter and clear on their arrival at, or departure from, each port. The five Great Districts referred to have been defined as follows and should not be confused with the customs collection districts:-- 1. Atlantic coast from Canada to Mexico. 2. Porto Rico. 3. Pacific Coast. 4. Alaska. 5. Hawaii. It is worth noting, however, that enrolled vessels which are not _required_ to enter and clear _may_ do so, if they desire for any purpose to have a record of their entrance and their clearance. This might occur in the case of a vessel intending to undergo extensive repairs and which might desire such a record to secure a rebate of insurance premium. In the case of vessels in the foreign trade or coming from one Great District into another, and which are required to be registered, the law requires the surrender and filing of manifests, bill of health and crew list. When these formalities have been complied with, the vessel is posted in the Custom House as entered. The manifest is produced to the boarding officer and includes the original manifest issued at the foreign port as well as a certified copy. The crew list is the list issued by the Collector of the last port of clearance from the United States, the Collector having retained the original sworn to by the master, and having furnished the master with a certified copy. Bills of health should have been secured from the American consular office at the last port of touch, but bills are not required from ports where there is no such officer. The ship's register is deposited in the Custom House and obtained before clearance. In the case of the clearance of a vessel in the coastwise trade, and which is under registry, or which for any other reason desires a clearance, the master is required to produce a coasting manifest to the Collector. Upon making affidavit to this document the necessary coastwise clearance and permit is issued. If, however, as in the case of tugs, there is no cargo to be manifested, a coastwise permit is issued upon affidavit by the master that the vessel contains no cargo whatever other than sea stores. In the case of vessels bound to foreign ports the documents take the form of the customary foreign manifest, which is followed by the official clearance in the form familiar to the export trade for a hundred years. VI. SHIPPING ARTICLES Shipping articles are required in both the foreign and in the coastwise trade, but with certain important differences. In the _foreign_ trade the articles, which must be in government form, are required to be signed before a Shipping Commissioner. This, however, does not apply to trade between the United States and the British North American possessions and the West Indies, and Mexico. The nature of these articles is sufficiently familiar to require no comment. Generally speaking the articles must contain the following particulars:-- 1. The nature and, as far as practicable, the duration of the intended voyage or engagement, and the port or country at which the voyage is to be terminated. 2. The number and description of the crew, specifying their respective employments. 3. The time at which each seaman is to be on board to begin work. 4. The capacity in which each seaman is to serve. 5. The amount of wages which each seaman is to receive. 6. A scale of the provisions which are to be furnished each seaman. 7. Any regulations as to conduct on board and as to fines, short allowances of provisions, or other lawful punishments for misconduct, which may be sanctioned by Congress or authorized by the Secretary of Commerce, not contrary to or not otherwise provided for by law, which the parties agree to adopt. 8. Any stipulations in reference to allotment of wages or other matters not contrary to law. In 1898 this provision was repealed so far as it relates to allotments in trade between the United States, Dominion of Canada, Newfoundland, the West Indies and Mexico, and the coasting trade of the United States, except between Atlantic and Pacific ports. In the _coasting_ trade the law merely requires that every _master_ of a vessel of fifty tons or over, bound from a port in one State to a port in any other than a port in an adjoining State (with the exception of voyages from the Atlantic to Pacific ports, which are included under foreign trade) shall make an _agreement in writing_ with his seamen declaring the voyage or term of time for which the seaman is shipped. This agreement _may_ be signed before a Shipping Commissioner, but this is not compulsory. The agreement required in the coasting trade requires only the voyage, or term of time for which the seaman is shipped. Question has been raised as to whether the requirement as to written articles applies to cases where the "adjoining State" is reached by a waterway running through other States, as, for instance, a voyage from New York to Philadelphia. It seems clear, however, that the law should be strictly interpreted, according to its terms, and that articles would not be required on such a voyage. In neither case does the law provide a limit in the matter of length of voyage. In England shipping articles are frequently for long periods of a year or more. Our practice is more limited. Clauses for one or more continuous voyages are commonly found with a provision for the termination of the contract by authority of the master, or any member of the crew, upon twenty-four hours' notice. A provision of law which sometimes occasions difficulty is that which permits a seaman discharged "without fault on his part justifying such discharge" and without his consent, before the commencement of the voyage or before one month's wages are earned, to receive a compensation of one month's wages. This question, like all other questions relating to wages, comes up in the first instance before a Shipping Commissioner, and in the hands of a competent commissioner there should seldom be any difficulty in determining whether the discharge was or was not due to the fault of the seaman or to his inability properly to perform his duties. The right to overtime is not provided for by statute, and before the war was not generally recognized. In July, 1919, however, an informal agreement was made between the Shipping Board and the steamship association and the unions, under which this right to claim overtime is recognized, provided it is covered by special contract. VII. LICENSING AND QUALIFICATIONS OF OFFICERS The law requires that masters, chief mates, second and third mates, if in charge of a watch, engineers, and pilots of all steam vessels, and the masters of sailing vessels of over 700 gross tons, and of other vessels over 100 gross tons carrying passengers for hire, shall be licensed and classified by the boards of local inspectors, and imposes a penalty of $100 for employing an unlicensed officer or for an unlicensed person to serve as an officer. These several boards of inspectors are under the direction of a Supervising Inspector General appointed by the President, and who is at the head of a Steamboat Inspection Service, and are further under the supervision of ten supervising inspectors, to each of whom is assigned general supervision of the work of inspection in a particular district. The law imposes large discretion upon the local inspectors in the examination and licensing of officers, limiting the licenses to a period of five years, and giving the inspectors authority to suspend licenses on proof of bad conduct, intemperate habits, incapacity, inattention to duties or a willful violation of inspection laws. It is specially forbidden for any state or municipal government to impose on pilots any obligation to secure a license in addition to that issued by the Federal government. One of the most important functions of the local inspectors is that which concerns the investigation of collisions and complaints of incompetency or misconduct committed by licensed officers. For this purpose the inspectors have power to summon the witnesses, to administer oaths and, upon hearing had after reasonable notice in writing to the alleged delinquent, to suspend or to revoke his license, if satisfied that he has been guilty of misbehavior, negligence or unskillfulness, or has endangered life. Appeals from the decision of the local inspectors may be made to the supervising inspector. Where, however, the supervising or local inspector finds a licensed officer on board a vessel under the influence of liquor to such an extent as to unfit him for duty, or when a licensed officer uses abusive language to an officer or insults him while on duty, the local inspector is required to revoke the license of the offending officer without further trial or investigation. The rules of the board classify vessels according to the general character of their trade, as 1. Ocean and coastwise. 2. Lakes, bays and sounds. 3. Rivers. Qualifications for the officers properly vary according to these three classes of service, to which is added a number of other special classifications, as, for instance, ferry steamers on rivers, passenger barges on rivers, etc.; or in the case of engineers, as, for instance, condensing river steamer and noncondensing river steamer. These requirements are set forth in full detail in the Regulations of the Steamboat Inspection Service, with which all officers should be familiar. Certain minimum requirements in the case of deck officers have been prescribed by statute, the latest law being that of March 11, 1918, which with certain minor exceptions, provides for one licensed master for every vessel; for vessels 1,000 gross tons or over, three licensed mates, and for vessels between 200 and 1,000 tons, two licensed mates; for vessels between 100 and 200 tons, one licensed mate. The inspectors, however, are permitted to increase these requirements if they consider the vessel not sufficiently manned for safe navigation. The same law of 1918 prohibits officers from assuming deck watches on leaving port unless they have had at least six hours off duty within the twelve hours preceding sailing; and also prohibits licensed officers on both ocean and coastwise vessels from doing duty exceeding nine hours of any twenty-four while in port, or more than twelve hours of any twenty-four while at sea, except in case of emergency endangering life or property. VIII. QUALIFICATIONS OF SEAMEN Before the passage of the Seamen's Act in 1915, there were no statutory requirements as to the ability or experience of the crew, other than the general requirement that the vessel should be properly manned. This act, however, presents a body of highly stringent requirements. Its principal requirements may be summarized as follows: =Age.=--In the matter of age the act provides that in the deck department of all vessels of more than 100 tons gross, except those navigating rivers exclusively and the smaller inland lakes, there shall be a certain proportion of seamen with the rating of able seamen, a classification which is limited to those of nineteen years of age. The lack of supply of able seamen has made it practically impossible to enforce this requirement. =Service and Physical Qualification.=--The act requires the physical examination of able seamen in the deck department. It also divides able seamen into two classes, those engaged in vessels operating on the high seas and those engaged on the Great Lakes, smaller lakes, bays and sounds. For the former three years' service at sea or on the Great Lakes, etc., and an examination as to general physical condition, is required, or one year's experience on deck at sea or on the Great Lakes, etc., together with an oral examination on seamanship and for the latter eighteen months' experience at sea or on the Lakes. =Lifeboat Men.=--The Seamen's Act, in connection with its elaborate provisions for the equipment of vessels with life-saving appliances, lays down the distribution of a specially designated class of certificated seamen known as lifeboat men to the various lifeboats and rafts required to be carried by a vessel, leaving the designation of the individuals to the discretion of the master. To secure a certificate as lifeboat man, a seaman is required to prove to the satisfaction of the inspection officers, or other officers designated for the purpose of issuing certificates, that he has been trained in all the operations in connection with launching lifeboats and the use of oars, is acquainted with the practical handling of the boats themselves, and is capable of understanding and answering the orders relative to lifeboat service. =Language.=--Perhaps the most disputed proviso of the Seamen's Act is that which requires that not less than 75 per cent. of the crew of the vessel must be able to understand any order given by the officer--that is, the necessary orders given to the members of the crew in each department in the performance of their particular duties. This law, however, does not require the use of any particular language on the part of officers and crew of the vessel, nor does it require an English-speaking crew, nor that the members of the crew in one department of the vessel should understand orders given in another department. IX. NATIONALITY OF OFFICERS AND CREW =Officers.=--Since 1792 our laws have required that the officers of _all_ vessels of the United States who are in charge of a watch, including pilots, shall be citizens. This of course includes tugs, barges and all other vessels which are documented under our laws. The term "officer" includes the Chief Engineer and each Assistant Engineer in charge of the watch. The only exception to this rule is that which was made by the Ship Registry Act of 1914, and the executive order based upon it, under which foreign-built ships admitted to American registry under that act are permitted to retain their watch officers, without regard to citizenship, for a term of seven years, provided that after two years any vacancy must be filled by a citizen of the United States. =Crew.=--There are no provisions or restrictions as to the nationality of the crew on vessels of the United States. X. WAGES The Seamen's Act requires that on _coasting_ voyages, wages shall be paid to every seaman within two days after the termination of the agreement under which he shipped, or at the time of his discharge if he should be discharged before the expiration of the agreement; and that on _foreign_ voyages wages shall be paid within twenty-four hours after the discharge of the cargo, or within four days after the discharge of the seaman, whichever shall first happen. The law further provides that a seaman is entitled in every case to be paid at the time of his discharge a sum equal to one-third of the balance of wages then due him. This proviso, however, is seldom observed in practice, nor is it insisted upon, as it would in general be impracticable for wages to be paid at the moment of discharge. The question of payment of a certain portion of wages on demand, which is also covered by the Seamen's Act and earlier acts, has received considerable revision in the Merchant Marine Act. Under this law it is provided that _every_ seaman on a vessel of the United States may receive on demand of the master one-half of the balance of his wages earned at every port where the vessel loads or delivers cargo. This protection may not be waived by contract, but is subject to the proviso that the demand shall not be made before the expiration of, nor oftener than once in, five days, nor more than once in the same harbor. Failure on the part of the master to comply with this demand releases the seaman from his contract and entitles him to full payment of wages earned. At the end of the voyage the seaman is entitled to the remainder of his wages according to the provisions of the Seamen's Act, which also provides that notwithstanding the release, which is required to be signed before the Shipping Commissioner at the time of the seaman's discharge, the proper court may set aside the release upon good cause shown. The provision of the Merchant Marine Act is specially made applicable to the case of seamen on foreign vessels while in the harbors of the United States, and the courts of the United States are opened to such seamen for its enforcement. =Advances.=--The law in regard to advances to seamen is also slightly amended by the Merchant Marine Act, which makes it unlawful to pay wages in advance of the time when actually earned, or to pay such advance wages or make any order or note or other evidence of indebtedness for the same to any other person, or to pay any other person for the shipment of seamen when payment is deducted or is to be deducted from the seaman's wages. Payment of such advance wages or allotment whether made within or without the United States does not absolve the vessel from libel and is no defense to a libel suit. This act also forbids any person to demand or receive from any seaman any remuneration whatever for providing him employment. Seamen discharged by a consul in a foreign port on account of the voyage being continued contrary to agreement, or unseaworthiness of vessel, or bad provisions, or cruel treatment, are entitled to one month's extra wages and transportation to the United States. Seamen discharged at a foreign port at the request of the master, and not on account of neglect of duty, are entitled to employment on a vessel agreed to by the seaman and to one month's extra wages. Seamen discharged before commencement of voyage without fault, are entitled to one month's additional wages, and all seamen are entitled to two days' extra wages for each day's delay in payment at end of voyage. The laws also contain elaborate and beneficial provisions for the recovery of their wages by seamen through proceedings in the courts. Seamen are disqualified by law from signing away their lien upon a vessel for wages; as also their rights to participate in salvage. It is to be noted that the seaman's right to a share in salvage, in the case of the saving of human life, on the part of a seaman who has taken part in the services rendered, is expressly conferred and protected by statute. Failure, unless unavoidable, to give help to persons at sea, in danger of being lost, is also made a serious criminal offense. XI. WATCH AND WATCH AND WORK-DAY Before the passage of the Seamen's Act there were no legal requirements as to hours of labor at sea, though long established custom had divided the deck crew into two watches and the engine crew into three watches, with certain variations in this plan in special trades. Under the Seamen's Act it is now provided that on merchant vessels of over 100 tons, except those engaged in river and harbor navigation, the sailors must be divided into at least two watches, and the firemen, oilers and water tenders into at least three watches, which are to be kept on duty successively for the performance of ordinary work, incident to the sailing and management of the vessel. Seamen may not be shipped to work alternately in the fireroom and on deck, nor may those shipped to work on deck be shifted to the fireroom, or vice versa, subject to cases of emergency, in the judgment of the master or other officer. These provisions, however, do not prohibit the master or other officers from requiring the whole or any part of the crew to participate in fire, lifeboat and other drills when the vessel is in a safe harbor nine hours, inclusive of the anchor watch, which is a legal day, but in such case no seaman may be required to do unnecessary work on Sundays or on New Year's, Fourth of July, Labor Day, Thanksgiving Day and Christmas, provided that this does not prevent the dispatch of the vessel on regular schedule or when ready to proceed on her voyage. XII. PROVISIONS FOR CREW =Sleeping Quarters.=--The Seamen's Act provides that on all vessels (except yachts, pilot boats and vessels of less than 100 tons) whose construction is thereafter begun, there shall be a crew space of not more than 100 cubic feet or not less than 16 square feet for each seaman lodged therein; also that each seaman shall have a separate berth, and that not more than one berth shall be placed above another; that the seamen's quarters shall be properly lighted, drained, heated, ventilated, constructed and protected and shut off; and that crew space shall be kept free from goods and stores. This law increased the crew quarters from 72 cubic feet and 12 square feet in the case of steamships, and from 100 cubic feet in the case of sailing vessels. It is noted that the Seamen's Act applies to _all_ merchant vessels of the United States, in this respect differing from the earlier acts which applied only to seagoing vessels. =Washing Places.=--The Seamen's Act requires that all merchant vessels whose construction is begun after its passage, having more than ten men on deck, shall have a light, clean and properly ventilated washing place, at least one washing outfit for every two men of the watch, and a separate washing place for the fire-room and engine-room men, if more than ten in number, which shall be large enough to accommodate at least one-sixth of them at the same time, and shall have hot and cold water supply and a sufficient number of wash basins, sinks and shower baths. =Provisions Scale.=--Since 1790 the laws of the United States have specified a scale of provisions required to be carried upon vessels. With minor alterations included in the Seamen's Act, the present scale, with permissible substitutions, was fixed by law on December 21, 1898. Under this law seamen have the option of accepting the provisions offered or of demanding the legal scale, which is required to be inserted in all ship articles and to be posted in the galley and forecastle. The laws contain provisos for complaints to be made to the officer in command of the vessel or to the United States consular officer or Shipping Commissioner or chief officer of the customs, who has authority to take action to see that the deficiency is corrected, subject to a penalty for default. For allowing the supply of provisions to be reduced below the legal scale during the voyage, except for unavoidable causes, compensation must be paid to every seaman according to the time of its continuance and in accordance with the scheduled allowances fixed by law. =Hospital Accommodations.=--In addition to crew space already referred to all merchant vessels which ordinarily make voyages of more than three days' duration and carry a crew of twelve or more seamen, are required to have a separate compartment for hospital purposes with at least one bunk for every twelve seamen, provided that not more than six bunks in all may be required. =Warm Room and Woolen Clothing.=--Every vessel bound on a voyage over fourteen days in length must, in addition to a slop chest, provide for each seaman one suit of woolen clothing, as also a "safe and warm room" for cold weather. XIII. PERSONAL INJURIES TO SEAMEN AND RECOVERIES FOR DEATH Prior to the passage of the recent Merchant Marine Act (1920) recovery by a seaman for injuries received by him in the service of the ship was subject to the maritime law under which (except in case of the unseaworthiness of the vessel, where full recovery might be claimed) the seaman was entitled to, but only to, his maintenance and cure, and to wages so long at least as the voyage continued, regardless of his own negligence (unless it amounted to willful misconduct) or of that of any other person. Where his contract extended beyond the voyage or there was fault on the part of the ship, recovery of wages was allowable even beyond the termination of the voyage. This liability could not be enlarged or diminished by any law of the states on the subject of employer's liability or workmen's compensation. The Seamen's Act of 1915 undertook to enlarge the protection of seamen by providing that in suits to recover damages for injuries received on board a vessel, or in its service, seamen "having command," _e.g._, masters, etc., should not be held to be fellow servants with those under their authority, but this was held not to affect those cases covered by the general rule of the maritime law above stated, under which the fellow servant question is immaterial. A more successful effort at extending the seaman's right, however, was made in the recent Merchant Marine Act, which permits any seaman who suffers injury in the course of his employment, to maintain, at his election, an action for damages at law, with the right of trial by jury, and in such case to have the benefit of the United States statutes modifying or extending the rights of railroad employees in analogous cases. The same act also covers the question of actions for the death of seamen, giving to their personal representatives the right to sue for damages at law and the benefit of a trial by jury, and the similar benefit of the laws covering actions for death in the case of railroad employees. This provision, it is observed, is in sharp contrast, and perhaps in some conflict with the provision of an act passed at the same session of Congress, on March 30, 1920, giving a general right to maintain actions for all deaths occurring on the high seas by some wrongful act or neglect. This law, which in its broad terms covers also the case of seamen, permits suits to be brought in the admiralty courts and fixes the recovery at the amount of pecuniary loss sustained by the persons for whose benefit suit is brought. It further provides that in such action the fact that the decedent has been guilty of contributory negligence is not to be considered a bar to recovery, but is to be taken into consideration by the court in fixing the degree of negligence and in reducing the recovery accordingly. A discussion of the technical questions involved in the relations of these two acts is beyond the scope of this summary. XIV. OFFENSES BY SEAMEN Offenses by seamen are punishable under the laws of the United States, generally, when committed on the high seas, or on any waters within the jurisdiction of the admiralty courts, or on lands under the exclusive jurisdiction of the United States. The list of crimes covers those familiar to the criminal law, such as murder, manslaughter, assault, rape, robbery, arson, larceny, forgery, receiving stolen property, etc. Other offenses peculiar to marine life may be noted as follows. =Mutiny, Desertion and Disobedience.=--Inciting to or participation in a mutiny on a United States vessel is punished by a fine of not over $1,000 or imprisonment of not over five years or both. This offense includes the stirring up of the crew to resist lawful orders or "to refuse or neglect their proper duty, or to betray their proper trust," also "the assembly with others in a tumultuous and mutinous manner." The actual revolt or mutiny--the usurping of the command of a vessel, is punishable by a fine of not over $2,000 or imprisonment of not over ten years, or both. Willful disobedience is punishable under the Seamen's Act by being placed in irons until the disobedience ceases, and, on arrival in port, by forfeiture of wages, not exceeding four days' pay, or, at the discretion of the court, by imprisonment not exceeding a month. Continued willful disobedience subjects the offender to being placed in irons on bread and water, with full rations every fifth day, until the disobedience ceases, and the forfeiture, on arrival in port, of twelve days' pay for every twenty-four hours' disobedience, or by imprisonment not over three months, at the discretion of the court. Desertion is punishable under the Seamen's Act by forfeiture of clothes and effects left on the vessel, and of wages due, the former penalty of imprisonment for desertion in a foreign port having been abolished, as also the provision for the arrest of seamen deserting from foreign vessels. This proviso is much more lenient than the laws of most foreign countries. In the case of England, if the desertion takes place outside the United Kingdom the deserter is liable to imprisonment for a period not exceeding twelve weeks. Imprisonment for desertion in the coastwise trade was abolished by the Maguire Act in 1895. =Miscellaneous Offenses.=--Among these may be mentioned the following: _Seduction_ of a female passenger, by master, officer, crew or employee is punishable by a fine not exceeding $1,000 and imprisonment not exceeding one year, or both. A subsequent marriage may be pleaded in bar of conviction. _Misconduct_, neglect or inattention to duty, resulting in loss of life, is punishable by fine not exceeding $10,000, or imprisonment not more than ten years, or both. _Abandonment of seamen_ is punishable by a fine not over $500, or imprisonment not over six months, or both. _Barratry_--the attempt to injure or destroy a vessel for her insurance--is punishable by a fine not over $10,000 and imprisonment not over ten years. _Wrecking_--plundering or stealing from a wrecked vessel--calls for a fine not exceeding $5,000 and imprisonment not exceeding ten years. _Willfully Obstructing Escape_ from a wrecked vessel subjects the offender to a minimum imprisonment of ten years, with a maximum punishment of imprisonment for life. _Plundering_ a vessel,--fine $5,000 maximum, and imprisonment not exceeding ten years. _Entering_ a vessel with intent to commit felony,--fine $10,000 maximum, and imprisonment not exceeding five years. _Casting away_ or otherwise destroying vessel by owner,--imprisonment for life or any lesser term; by other person, imprisonment not exceeding ten years. The carrying of sheath-knives by seamen in the merchant service is forbidden, and penalties for allowing violation of this prohibition are imposed upon the master. Officers, seamen and employees are forbidden to visit passengers' quarters except by permission of the master. Severe penalties are imposed upon both the offending person and upon the master permitting the violation. Corporal punishment is prohibited by the Seamen's Act under penalties not only of fine and imprisonment, but of liability to civil damages. Ill treatment of a seaman, beating without justifiable cause, wounding or beating, or the withholding of suitable food and nourishment, or the infliction of any cruel and unusual punishment is punished by fine of not over $1,000 or imprisonment of not over five years. Shanghaiing was prohibited, under severe penalties, in 1909. =Assistance in Case of Collision.=--The law requires every master, in the case of a collision, so far as he can do so without serious danger to his own vessel or its crew or passengers, to stand by the other vessel until he has ascertained that she has no need of further assistance, and to render such assistance as may be practical, also to give the name of his own vessel, her port of registry, and other material information. For failure to do so and in the absence of reasonable cause shown for such failure, a collision, in the absence of proof to the contrary, is deemed to have been caused by such master's wrongful act or neglect. For failing to render such assistance, or giving the information required, masters are liable to a fine of $1,000 or a year's imprisonment, and the vessel is expressly made liable for the amount named, one-half of which is payable to the informer. XV. RULES OF THE ROAD There are three general bodies of rules covering the navigation of vessels with respect to the rules of the road. The first of these are the International Rules which were adopted at a conference of maritime nations held in the United States in 1889, which are now in force in practically all maritime countries. They apply only to vessels on the high seas, the boundary line of which, so far as the United States is concerned, has been defined by an act of Congress passed in 1913, under which the Secretary of Commerce, having been authorized to fix lines separating the high seas from inland waters for the purposes of the rules of the road, has defined a water line from Cutler Harbor, Maine, to Puget Sound. The second body of rules is known as the Inland Rules, embodied in a federal statute passed in 1897, and applicable only to the waters within the line thus defined. These rules, generally speaking, are similar to the International Rules but differ in a number of details. The third body of rules is what is known as the Pilot Rules for certain inland waters of the Atlantic and Pacific coasts and of the coast of the Gulf of Mexico, adopted by the supervising inspectors of the Steamboat Inspection Service, approved by the Secretary of Commerce under authority of the Act of June, 1897, establishing the Inland Rules, and of subsequent acts passed in 1903 and 1913, establishing the Department of Commerce. These rules are also to a large extent similar to, and are generally in harmony with the inland rules, to which they yield in case of conflict. More extended reference to these rules, the knowledge of which should be a matter of second nature to seafaring men, is beyond the scope of this summary. XVI. PILOTAGE As the states had enacted pilotage laws before the adoption of the Constitution, the right of the states to a certain measure of control over pilotage, within their boundaries, has always been recognized, and consequently a dual system has grown up. The state laws are effective except where the subject is specifically covered by a federal law. As to the federal requirements, all vessels engaged in the _coasting_ trade are required, when under way and within the jurisdiction of the United States, that is, except on the high seas, to be piloted by officers duly licensed under the federal law as pilots for the particular waters covered. This is covered by the qualifications laid down for the various classes of vessels by the Board of Supervising Inspectors, and by the provision of our law that the qualifications necessary for obtaining a license as master, mate or pilot of all steam vessels shall be as prescribed by the Board. Registered steam vessels, when engaged in _foreign_ trade, and all sailing vessels of the United States in the foreign or coasting trade, are exempt from this requirement, but are subject to the requirements of the pilotage laws of the several states. The master of a foreign vessel is not required to employ a pilot licensed under the laws of the United States. As to state laws, the pilotage of all vessels in state waters (except enrolled steam vessels employed in the coasting trade, which are exempted from state supervision by act of Congress), is regulated by the laws of the respective states. There are, however, a number of special prohibitions designed to prevent controversy between the states. Thus, no regulation may be adopted by one state making the discrimination of a lower pilotage as to vessels sailing between ports of one state and vessels sailing between ports of different states, nor any discrimination against steam vessels; nor may a state require pilots to procure a state license in addition to that issued by the United States. It is to be noted that the federal law, which forbids the states to require enrolled coastwise steamers to take on state pilots, does not apply to _sailing vessels_ even though they may be in a tow of a steam tug carrying a licensed pilot, a discrimination difficult to justify. In this connection, thrifty ship agents handling _registered_ vessels which for the time being happen to be engaged in the _coasting_ trade, will naturally see to it that registers are exchanged for enrollments, wherever a substantial saving in the matter of exemption from state pilotage fees can be figured out. It is to be noted, however, that in order to permit this very saving, in another direction, the government permits vessels engaged in trade through the canal to be enrolled and licensed. By thus obviating the necessity for registry, state pilotage is avoided. XVII. LENGTH OF HAWSERS The law provides a special procedure covering length of hawsers in the case of tows. The Commissioner of Lighthouses, the Supervising Inspector of the Steamboat Inspection Service, and the Commissioner of Navigation are directed to convene as a board, under directions of the Secretary of Commerce, and to prepare regulations limiting the length of hawsers between towing vessels and seagoing barges in tow, and the length of such tows within any of the inland waters of the United States. Willful violation of these regulations subjects the license of the master of the towing vessel to suspension or revocation. XVIII. INSPECTION OF STEAM VESSELS All steam vessels must be inspected yearly as to their hulls, and generally as to whether they have complied with all the requirements of the law in regard to fires, boats, pumps, hose, life preservers, floats, anchors, etc., as laid down in the Rules and Regulations of the United States Board of Supervising Inspectors, which should be familiar to all masters. Inspectors, however, have the widest latitude. The law requires that they shall satisfy themselves that the boat is in a condition to warrant their belief that she may be used in navigation with safety for life. In making this test they may have her put under way or may adopt any other suitable means to test her sufficiency or that of her equipment. This yearly inspection, however, may be suspended under special regulations, when vessels are laid up and dismantled and out of commission. In this connection it is perhaps worth remembering that the laws of the United States make it a criminal offense for any person knowingly to send to sea an American ship, whether in the coast, foreign or coastwise trade, in such an unseaworthy state that the life of any person is liable to be endangered. The punishment for this offense is properly severe--imprisonment not exceeding five years or a fine not exceeding $1,000 or both at the discretion of the court. The law also provides for the yearly inspection of the boilers of all steam vessels, including tug-boats, to insure compliance with the requirements of the standards issued by the board. =Barges.=--Seagoing barges of over 100 tons gross are also subject to yearly inspection. The standard applied by the local inspectors is the elastic one that they shall satisfy themselves that the barge is "of a structure suitable for the service in which she is to be employed, has suitable accommodations for the crew, and is in a condition to warrant the belief that she may be used in navigation with safety to life." In the case of such barges the law also specially provides that there shall be at least one lifeboat, one anchor with suitable chain or cable, and at least one life preserver for each person on board. Without such certificate of inspection actually in force at the time, no document can be issued for a barge, and for navigating a barge without a certificate or without the equipment referred to the owner is liable to a penalty of $500. Certificates of inspection for barges are issued in the same manner as for seagoing vessels generally. Where the certificate is not available at the time of securing a new document, evidence that it is still in force must be produced to the Collector, which may be in the form of a telegraphic confirmation of the fact, from the office of the Steamboat Inspection Bureau, Department of Commerce, Washington. =The Certificate of Inspection.=--Upon the making of every inspection, if the inspectors refuse to grant a certificate, they are required to sign a written statement of their reasons for their disapproval. If approval is granted, however, it is their duty to immediately deliver to the master or owner a temporary certificate, which is good until the regular certificate has been delivered. Copies of these certificates are kept on file in the inspector's office or in the office of the Collector of Customs. The original is required to be posted in a conspicuous place in the vessel, to be kept there at all times except where it is otherwise permitted in special cases under the regulations. =Manning of Inspected Vessels.=--The inspection of the local inspectors covers not only the hull and boiler and equipment, but also the questions of manning, character of merchandise to be carried, and the mode of packing dangerous articles, etc. The local inspectors, on making the general inspection of the vessel, are required to make entry in the certificate of inspection of such complement of licensed officers and crew, including certificated lifeboat men, as they consider necessary for her safety, this entry being subject to right of appeal to the Supervising Inspector General. Where such a vessel is for any reason deprived of the services of any number of the crew, without the consent or fault of the master or any person interested in the vessel, she is permitted to proceed on her voyage if, in the judgment of the master, she is still sufficiently manned. It is required, however, that the master shall ship, if obtainable, a number equal to those whose services he has been deprived of, and of the same or higher grade, also that he shall explain in writing the situation to the local inspectors within twelve hours of the arrival of the vessel at its destination under penalty of $50. The penalty for undermanning the vessel is $100, or in case of an insufficient number of licensed officers $500. XIX. REGISTER TONNAGE Three methods of measuring the capacity of a ship are more or less in general use in the maritime world. The displacement tonnage, or weight of the volume of water displaced by the ship when fully loaded with all her crew, coal, supplies, etc., is in general use by the navies of the world for assuring accuracy and uniformity, but of course is not adapted to merchant vessels on which the cargo varies from voyage to voyage. The deadweight tonnage, or actual weight of the cargo which a merchant ship will transport, obviously is adaptable only for vessels carrying bulk cargoes and not for general cargo ships. Each of these measurements is recorded in long tons avoirdupois. The American registered tonnage system follows the Moorsom rules adopted in England in 1854, which are now in effect in practically every maritime country. It aims to express the entire cubical content of a merchant ship in unit tons of 100 cubic feet, this figure having been arrived at in England, on the adoption of the present system, when it was found that the ratio of the total registered tonnage of the British merchant marine to cubic feet of contents was slightly over 98. The measurement rules of the United States are carefully and elaborately defined in the statutes themselves. Under the statutes net tonnage is ascertained by deducting from gross tonnage that proportion of the ship's space occupied by engine's machinery, boilers, coal bunkers and certain other minor spaces, such as those which inclose the steering gear below deck, the boatman's stores, chart-houses, donkey engine and sail room. To encourage the building of ample forecastles, crews' quarters, etc., as well as for other reasons, the rule is adopted by almost all maritime nations that tonnage taxes and other tonnage dues shall be collected not on gross but upon the net tonnage. This also includes the usual commercial charges for towage, dockage and wharfage. Official U. S. statistics of entrances and clearances are in terms of net-register tonnage, as also time charter rates when not specifically based on deadweight tonnage. The incentive to understate net register is thus strong. In the case of tugs engaged in foreign service and which are therefore subject to tonnage duties, it becomes important to see that the net tonnage, which should ordinarily be a very small figure, is held to the lowest limit. For instance, seagoing and oceangoing tugs have been reported with a tonnage as low as eight and ten tons. On the other hand, many American tugs of no larger capacity are in the habit of carrying a net tonnage far exceeding this amount. XX. TONNAGE TAXES Tonnage tax is levied on every vessel engaged in trade upon her arrival by sea from a foreign port unless she is in distress. It is not levied on more than five entries at the same rate during any one year nor on vessels arriving otherwise than by sea from foreign ports at which equivalent taxes or dues are not imposed on vessels of the United States. This tax varies from two to six cents per net ton, the two cent rate applying to ports in North and Central America, the West Indies, including Cuba and the Bermuda Islands, the coast of South America bordering on the Caribbean Sea, and New Foundland. By special treaty arrangement it also applies to Norway and Sweden. The six cent rate applies to all other trade. Vessels entering otherwise than by sea from a foreign port at which tonnage or lighthouse dues or other equivalent tax or taxes are not imposed on vessels of the United States, are exempt from the tonnage duty of two cents per ton, not to exceed in the aggregate ten cents per ton in any one year. These tonnage duties are substantially similar to the corresponding English rates, but are materially lower than corresponding charges in European continental ports. There are a number of special instances of exceptional cases, but which are not of sufficient frequency or importance to deserve special mention. It is well to remember, however, that if any officer of an American vessel should happen not to be a citizen a penalty of fifty cents a ton is imposed, except as provided by presidential proclamation in the case of certain vessels of foreign origin. Foreign steam tugs employed in towing coastwise vessels are liable to a tonnage of fifty cents a ton on the measurement of the vessel towed, unless the towing is done in whole, or in part, within or upon foreign waters, or when the tug-boat is owned by a foreign railway company whose cars enter into the United States by means of such transportation. XXI. NAVIGATION FEES Vessels engaged in foreign trade with other than Canadian ports are subject to navigation fees upon entry. Thus if she is less than 100 tons burden the fee is $1.50. Over that amount the fee is $2.50. Her clearance fee is at the same rate. In the event that she might have any dutiable merchandise on board she would also be liable under similar conditions to the usual fees for surveyor's services in connection with her customs entries, to wit, $1.50, if less than 100 tons, and $3 if more than 100 tons. Where she carries no dutiable merchandise, however, the fee is a nominal one of sixty-seven cents, which applies, of course, in the case of foreign ballast which is not dutiable. XXII. ANNUAL LIST OF MERCHANT VESSELS The law provides that the Commissioner of Navigation shall publish annually a list of vessels of the United States belonging to the commercial marine, specifying their official number, signal letters, name, rig, tonnage, home port, and place and date of build, distinguishing sailing vessels from those propelled by steam or other motive power. The list for the year 1919 was the fifty-first list so published. Under the provisions of an act passed in 1912 it is required that upon affidavit by a reputable ship builder as to the rebuilding of _unrigged_ wooden vessels, giving date and place of their rebuilding, and certifying that they are sound and free from rotten wood and in every respect seaworthy, a notation to this effect shall be included in the list. It is noted that the provision applies only to _unrigged_ wooden vessels, and thus does not cover the case of rigged barges, whatever their size. XXIII. NUMBERING OF UNDOCUMENTED MOTOR BOATS In 1918 a law was passed requiring the numbering of all theretofore undocumented motor boats, except vessels under sixteen feet temporarily equipped with detachable motors. These numbers are awarded by the collectors of customs on application of the owner or master, and are required to be painted, or otherwise attached, to the bow of the vessel, and to be not less than three inches in size. Violation of the act is subject to a penalty of $10. From the date of the passage of the act on December 7, 1917, up to July 1, 1919, nearly 100,000 such vessels had been numbered, and the experiment had proved highly successful in assisting the enforcement of the navigation laws and the collection of taxes as well as the enforcement of harbor police laws and regulations. XXIV. ADMINISTRATION OF NAVIGATION LAWS Practically every department of the government has to do with some feature or other of the navigation laws as affecting ship building, maritime commerce and ocean transportation. Primarily, however, the administration of the laws is in the hands of the Department of Commerce, under the immediate direction of the Bureau of Navigation, the Steamboat Inspection Service and the United States Shipping Commissioners. Other branches of government service whose functions touch on some phase of navigation are the Public Health Service, with its hospitals and quarantine stations, and the Coast Guard which, since 1915, has included the Revenue Cutter and Life Saving Service. The War and Navy departments also have various functions related primarily to the national defense. The activities of the Shipping Board will be separately reviewed. =Commissioner of Navigation.=--The Bureau of Navigation, under the head of the Commissioner of Navigation, has general superintendence of the merchant marine and seamen so far as they are not directly subject to other departments; it controls the documentation of vessels and has supervision of the laws relating to measurement of vessels, signal numbers and the questions relating to the tonnage tax. It is charged further with the preparation of the annual list of vessels belonging to the merchant marine, has authority to change the names of vessels, and is charged with the preparation of annual reports to the Secretary, and with numerous other miscellaneous but important duties. =Steamboat Inspection Service.=--The Steamboat Inspection Service is under the direction of a Supervising Inspector General appointed by the President, in addition to which there are ten supervising inspectors who meet as a Board in Washington at least once a year and establish regulations necessary to carry out the inspection laws relating to vessels, subject to the right of the Secretary of Commerce to convene a special executive committee, composed of the Supervising Inspector General and two supervising inspectors, who have power to alter and amend these rules with the approval of the secretary. The principal duty of the supervising inspectors is to supervise the work of a large number of local inspectors of hulls and of boilers, and who in their respective districts, upon designation of the Secretary of Commerce, constitute the Board of Local Inspectors charged with the duties of inspection and the issuance and supervision of licenses already referred to. =Shipping Commissioners.=--The Shipping Commissioners of the United States form a highly responsible body of officers with semi-judicial functions, who are directly responsible to the Secretary of Commerce, by whom they are appointed. The law provides one such officer for each port of entry which is a port of ocean navigation, and which in the judgment of the Secretary shall require the services of a Commissioner, and for whom Congress has made an appropriation. Generally speaking, the duties of the Shipping Commissioner are to afford facilities for engaging seamen; to superintend their engagement and discharge in the manner prescribed by law; to provide means for securing their presence on the board at the proper time; to facilitate the making of apprentices in the sea service; and to perform other duties imposed upon them. One of the most important and useful functions of a Shipping Commissioner, particularly when the office is in capable hands, is that of arbitrating claims between master, consignee, agent or owner or any of the crew, when both parties agree in writing to submit to the award, it being provided by law that an award made by a Commissioner in such case is binding on both parties and in any legal proceedings is to be deemed conclusive of the rights of the party. The Commissioners are given authority to call upon owners, agents, masters, for proof or production of books, papers, etc., or to give evidence before the Commissioner subject to a penalty and punishment for contempt for failure to so comply. As it is the practice to insert arbitration clauses in all steamers' shipping articles, excepting those operated by the Shipping Board, which should be carefully read to the crews before they are signed, this duty is generally viewed by captains and owners as an invaluable aid to shipping and has been accepted also by the majority of seamen. The work of the Commissioners in this direction has been so successful that an effort was recently made to confer upon the Commissioners by law certain magisterial powers subject to appeal to the United States District Courts. So far the effort has been unsuccessful. Having in mind their responsibilities and enormous possibilities of service to navigation, Shipping Commissioners are among the most pitifully underpaid of government officials. As an illustration of this it may be noted that the Commissioners in the great ports of Philadelphia and of Norfolk receive salaries of $2,400 and of $1,800, respectively. XXV. THE SHIPPING BOARD The United States Shipping Board was created before the war, by the Shipping Act of 1916, with the dual function and purpose, first of acting as the administrative agent of the government in developing the merchant marine and the naval auxiliary in peace time, and, second, that of meeting the shipping problems incident to a possible war. Its most important powers have heretofore been exercised through the instrumentality of the United States Shipping Board Emergency Fleet Corporation, organized by, and the stock of which has been held by, the Shipping Board, for the Government. The primary function of the Corporation was the construction of vessels, but its work was soon extended to include their operation, in an effort to avoid the embarrassments, prior to our entering the war, of having our vessels, if operated by such purely public administrative agency as the Shipping Board, treated as public vessels in foreign ports. In the beginning it was intended that the Corporation should function in the character of a private corporation, and 50,000,000 dollars was appropriated to it for the construction of vessels, but during the war it acted primarily as the agent of the President, claiming the immunities and privileges incident to that somewhat anomalous relation, and has expended upwards of 3,000,000,000 dollars, its capital remaining intact. The actual operation of vessels by the Corporation has been carried out through the instrumentality of a specially organized Division of Operations, which was largely separate from the Corporation itself, and subject to the direction and supervision of the Shipping Board. The jurisdiction of the Shipping Board, however, has not been confined to vessels in which the government is interested as owner or charterer. From the first the Board has had authority to enforce a general prohibition against unfair discrimination and preferences and against the improper influencing of marine insurance companies by common carriers by water, whether in foreign or interstate commerce, not including tramps, and has also exercised the right of supervising and regulating tariffs fixed by common carriers in _interstate_ commerce. In this field, however, the jurisdiction of the Board does not overlap the jurisdiction of the Interstate Commerce Commission, which has authority to establish through routes and joint rates where they involve water transportation. Like the Interstate Commerce Commission the orders of the Shipping Board are subject to review by the federal courts. A recent provision of the Merchant Marine Act (1920) reorganizes and strengthens the Shipping Board, consolidating and centralizing its control and giving it wide powers in the matter of developing the American merchant marine and of encouraging the establishment of new lines and the investigation generally of all matters relative to the advancement of merchant marine. Among other new powers of general scope given to the Board is that under which it is authorized to make rules and regulations affecting shipping in the _foreign_ trade, wherever necessary, in order to meet special conditions in foreign trade arising out of foreign laws or competitive methods practiced in foreign countries. The Board is also authorized to request the heads of departments to suspend and modify regulations or to make new regulations affecting shipping in the foreign trade, except those relating to the Public Health Service, the Consular Service and the Steamboat Inspection Service, and no rules or regulations excepting those affecting the services named, may be established by any department without being first submitted to the Board for its approval and final action taken thereon by the Board or the President. [33] Of the Philadelphia Bar. APPENDIX II THE MERCHANT MARINE ACT OF 1920[34] _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That it is necessary for the national defense and for the proper growth of its foreign and domestic commerce that the United States shall have a merchant marine of the best equipped and most suitable types of vessels sufficient to carry the greater portion of its commerce and serve as a naval or military auxiliary in time of war or national emergency, ultimately to be owned and operated privately by the citizens of the United States; and it is hereby declared to be the policy of the United States to do whatever may be necessary to develop and encourage the maintenance of such a merchant marine, and, in so far as may not be inconsistent with the express provisions of this Act, the United States Shipping Board shall, in the disposition of vessels and shipping property as hereinafter provided, in the making of rules and regulations, and in the administration of the shipping laws keep always in view this purpose and object as the primary end to be attained. SEC. 2. (a) That the following Acts and parts of Acts are hereby repealed, subject to the limitations and exceptions hereinafter, in this Act, provided: (1) The emergency shipping fund provisions of the Act entitled "An Act making appropriations to supply urgent deficiencies in appropriations for the Military and Naval Establishments on account of war expenses for the fiscal year ending June 30, 1917, and for other purposes," approved June 15, 1917, as amended by the Act entitled "An Act to amend the emergency shipping fund provisions of the Urgent Deficiency Appropriation Act, approved June 15, 1917, so as to empower the President and his designated agents to take over certain transportation systems for the transportation of shipyard and plant employees, and for other purposes," approved April 22, 1918, and as further amended by the Act entitled "An Act making appropriation to supply deficiencies in appropriations for the fiscal year ending June 30, 1919, and prior fiscal years, on account of war expenses, and for other purposes," approved November 4, 1918; (2) Section 3 of such Act of April 22, 1918; (3) The paragraphs numbered 2 and 3 under the heading "Emergency shipping fund" in such Act of November 4, 1918; and (4) The Act entitled "An Act to confer on the President power to prescribe charter rates and freight rates and to requisition vessels, and for other purposes," approved July 18, 1918. (5) Sections 5, 7, and 8, Shipping Act, 1916. (b) The repeal of such Acts or parts of Acts is subject to the following limitations: (1) All contracts or agreements lawfully entered into before the passage of this Act under any such Act or part of Act shall be assumed and carried out by the United States Shipping Board, hereinafter called "the board." (2) All rights, interests, or remedies accruing or to accrue as a result of any such contract or agreement or of any action taken in pursuance of any such Act or parts of Acts shall be in all respects as valid, and may be exercised and enforced in like manner, subject to the provisions of subdivision (c) of this section, as if this Act had not been passed. (3) The repeal shall not have the effect of extinguishing any penalty incurred under such Acts or parts of Acts, but such Acts or parts of Acts shall remain in force for the purpose of sustaining a prosecution for enforcement of the penalty therein provided for the violation thereof. (4) The board shall have full power and authority to complete or conclude any construction work begun in accordance with the provisions of such Acts or parts of Acts if, in the opinion of the board, the completion or conclusion thereof is for the best interests of the United States. (c) As soon as practicable after the passage of this Act the board shall adjust, settle, and liquidate all matters arising out of or incident to the exercise by or through the President of any of the powers or duties conferred or imposed upon the President by any such Act or parts of Acts; and for this purpose the board, instead of the President, shall have and exercise any of such powers and duties relating to the determination and payment of just compensation: _Provided_, That any person dissatisfied with any decision of the board shall have the same right to sue the United States as he would have had if the decision had been made by the President of the United States under the Acts hereby repealed. SEC. 3. (a) That section 3 of the "Shipping Act, 1916," is amended to read as follows: "SEC. 3. That a board is hereby created to be known as the United States Shipping Board and hereinafter referred to as the board. The board shall be composed of seven commissioners, to be appointed by the President, by and with the advice and consent of the Senate; and the President shall designate the member to act as chairman of the board, and the board may elect one of its members as vice chairman. Such commissioners shall be appointed as soon as practicable after the enactment of this Act and shall continue in office two for a term of one year, and the remaining five for terms of two, three, four, five, and six years, respectively, from the date of their appointment, the term of each to be designated by the President, but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he succeeds. "The commissioners shall be appointed with due regard to their fitness for the efficient discharge of the duties imposed on them by this Act, and two shall be appointed from the States touching the Pacific Ocean, two from the States touching the Atlantic Ocean, one from the States touching the Gulf of Mexico, one from the States touching the Great Lakes and one from the interior, but not more than one shall be appointed from the same State. Not more than four of the commissioners shall be appointed from the same political party. A vacancy in the board shall be filled in the same manner as the original appointments. No commissioner shall take any part in the consideration or decision of any claim or particular controversy in which he has a pecuniary interest. "Each commissioner shall devote his time to the duties of his office, and shall not be in the employ of or hold any official relation to any common carrier or other person subject to this Act, nor while holding such office acquire any stock or bonds thereof or become pecuniarily interested in any such carrier. "The duties of the board may be so divided that under its supervision the directorship of various activities may be assigned to one or more commissioners. Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. A vacancy in the board shall not impair the right of the remaining members of the board to exercise all its powers. The board shall have an official seal, which shall be judicially noticed. "The board may adopt rules and regulations in regard to its procedure and the conduct of its business. The board may employ within the limits of appropriations made therefor by Congress such attorneys as it finds necessary for proper legal service to the board in the conduct of its work, or for proper representation of the public interest in investigations made by it or proceedings pending before it whether at the board's own instance or upon complaint, or to appear for or represent the board in any case in court or other tribunal. The board shall have such other rights and perform such other duties not inconsistent with the Merchant Marine Act, 1920, as are conferred by existing law upon the board in existence at the time this section as amended takes effect. "The commissioners in office at the time this section as amended takes effect shall hold office until all the commissioners provided for in this section as amended are appointed and qualify." (b) The first sentence of section 4 of the "Shipping Act, 1916," is amended to read as follows: "SEC. 4. That each member of the board shall receive a salary of $12,000 per annum." SEC. 4. That all vessels and other property or interests of whatsoever kind, including vessels or property in course of construction or contracted for, acquired by the President through any agencies whatsoever in pursuance of authority conferred by the Acts or parts of Acts repealed by section 2 of this Act, or in pursuance of the joint resolution entitled "Joint resolution authorizing the President to take over for the United States the possession and title of any vessel within its jurisdiction, which at the time of coming therein was owned in whole or in part by any corporation, citizen, or subject of any nation with which the United States may be at war, or was under register of any such nation, and for other purposes," approved May 12, 1917, with the exception of vessels and property the use of which is in the opinion of the President required by any other branch of the Government service of the United States, are hereby transferred to the board: _Provided_, That all vessels in the military and naval service of the United States, including the vessels assigned to river and harbor work, inland waterways, or vessels for such needs in the course of construction or under contract by the War Department, shall be exempt from the provisions of this Act. SEC. 5. That in order to accomplish the declared purposes of this Act, and to carry out the policy declared in section 1 hereof, the board is authorized and directed to sell, as soon as practicable, consistent with good business methods and the objects and purposes to be attained by this Act, at public or private competitive sale after appraisement and due advertisement, to persons who are citizens of the United States except as provided in section 6 of this Act, all of the vessels referred to in section 4 of this Act or otherwise acquired by the board. Such sale shall be made at such prices and on such terms and conditions as the board may prescribe, but the completion of the payment of the purchase price and interest shall not be deferred more than fifteen years after the making of the contract of sale. The board in fixing or accepting the sale price of such vessels shall take into consideration the prevailing domestic and foreign market price of, the available supply of, and the demand for vessels, existing freight rates and prospects of their maintenance, the cost of constructing vessels of similar types under prevailing conditions, as well as the cost of the construction or purchase price of the vessels to be sold, and any other facts or conditions that would influence a prudent, solvent business man in the sale of similar vessels or property which he is not forced to sell. All sales made under the authority of this Act shall be subject to the limitations and restrictions of section 9 of the "Shipping Act, 1916," as amended. SEC. 6. That the board is authorized and empowered to sell to aliens, at such prices and on such terms and conditions as it may determine, not inconsistent with the provisions of section 5 (except that completion of the payment of the purchase price and interest shall not be deferred more than ten years after the making of the contract of sale), such vessels as it shall, after careful investigation, deem unnecessary to the promotion and maintenance of an efficient American merchant marine; but no such sale shall be made unless the board, after diligent effort, has been unable to sell, in accordance with the terms and conditions of section 5, such vessels to persons citizens of the United States, and has, upon an affirmative vote of not less than five of its members, spread upon the minutes of the board, determined to make such sale; and it shall make as a part of its records a full statement of its reasons for making such sale. Deferred payments of purchase price of vessels under this section shall bear interest at the rate of not less than 5-1/2 per centum per annum, payable semiannually. SEC. 7. That the board is authorized and directed to investigate and determine as promptly as possible after the enactment of this Act and from time to time thereafter what steamship lines should be established and put in operation from ports in the United States or any Territory, District, or possession thereof to such world and domestic markets as in its judgment are desirable for the promotion, development, expansion, and maintenance of the foreign and coastwise trade of the United States and an adequate postal service, and to determine the type, size, speed, and other requirements of the vessels to be employed upon such lines and the frequency and regularity of their sailings, with a view to furnishing adequate, regular, certain, and permanent service. The board is authorized to sell, and if a satisfactory sale can not be made, to charter such of the vessels referred to in section 4 of this Act or otherwise acquired by the board, as will meet these requirements to responsible persons who are citizens of the United States who agree to establish and maintain such lines upon such terms of payment and other conditions as the board may deem just and necessary to secure and maintain the service desired; and if any such steamship line is deemed desirable and necessary, and if no such citizen can be secured to supply such service by the purchase or charter of vessels on terms satisfactory to the board, the board shall operate vessels on such line until the business is developed so that such vessels may be sold on satisfactory terms and the service maintained, or unless it shall appear within a reasonable time that such line can not be made self-sustaining. The Postmaster General is authorized, notwithstanding the Act entitled "An Act to provide for ocean mail service between the United States and foreign ports, and to promote commerce," approved March 3, 1891, to contract for the carrying of the mails over such lines at such price as may be agreed upon by the board and the Postmaster General: _Provided_, That preference in the sale or assignment of vessels for operation on such steamship lines shall be given to persons who are citizens of the United States who have the support, financial and otherwise, of the domestic communities primarily interested in such lines if the board is satisfied of the ability of such persons to maintain the service desired and proposed to be maintained, or to persons who are citizens of the United States who may then be maintaining a service from the port of the United States to or in the general direction of the world market port to which the board has determined that such service should be established: _Provided further_, That where steamship lines and regular service have been established and are being maintained by ships of the board at the time of the enactment of this Act, such lines and service shall be maintained by the board until, in the opinion of the board, the maintenance thereof is unbusinesslike and against the public interests: _And provided further_, That whenever the board shall determine, as provided in this Act, that trade conditions warrant the establishment of a service or additional service under Government administration where a service is already being given by persons, citizens of the United States, the rates and charges for such Government service shall not be less than the cost thereof, including a proper interest and depreciation charge on the value of Government vessels and equipment employed therein. SEC. 8. That it shall be the duty of the board, in coöperation with the Secretary of War, with the object of promoting, encouraging, and developing ports and transportation facilities in connection with water commerce over which it has jurisdiction, to investigate territorial regions and zones tributary to such ports, taking into consideration the economies of transportation by rail, water and highway and the natural direction of the flow of commerce; to investigate the causes of the congestion of commerce at ports and the remedies applicable thereto; to investigate the subject of water terminals, including the necessary docks, warehouses, apparatus, equipment, and appliances in connection therewith, with a view to devising and suggesting the types most appropriate for different locations and for the most expeditious and economical transfer or interchange of passengers or property between carriers by water and carriers by rail; to advise with communities regarding the appropriate location and plan of construction of wharves, piers, and water terminals; to investigate the practicability and advantages of harbor, river, and port improvements in connection with foreign and coastwise trade; and to investigate any other matter that may tend to promote and encourage the use by vessels of ports adequate to care for the freight which would naturally pass through such ports: _Provided_, That if after such investigation the board shall be of the opinion that rates, charges, rules, or regulations of common carriers by rail subject to the jurisdiction of the Interstate Commerce Commission are detrimental to the declared object of this section, or that new rates, charges, rules, or regulations, new or additional port terminal facilities, or affirmative action on the part of such common carriers by rail is necessary to promote the objects of this section, the board may submit its findings to the Interstate Commerce Commission for such action as such commission may consider proper under existing law. SEC. 9. That if the terms and conditions of any sale of a vessel made under the provisions of this Act include deferred payments of the purchase price, the board shall require, as part of such terms and conditions, that the purchaser of the vessel shall keep the same insured (a) against loss or damage by fire, and against marine risks and disasters, and war and other risks if the board so specifies, with such insurance companies, associations or underwriters, and under such forms of policies, and to such an amount, as the board may prescribe or approve; and (b) by protection and indemnity insurance with such insurance companies, associations, or underwriters and under such forms of policies, and to such an amount as the board may prescribe or approve. The insurance required to be carried under this section shall be made payable to the board and/or to the parties as interest may appear. The board is authorized to enter into any agreement that it deems wise in respect to the payment and/or the guarantee of premiums of insurance. SEC. 10. That the board may create out of net revenue from operations and sales, and maintain and administer, a separate insurance fund, which it may use to insure in whole or in part, against all hazards commonly covered by insurance policies in such cases, any interest of the United States (1) in any vessel, either constructed or in process of construction, and (2) in any plants or materials heretofore or hereafter acquired by the board or hereby transferred to the board. SEC. 11. That during a period of five years from the enactment of this Act the board may annually set aside out of the revenues from sales and operations a sum not exceeding $25,000,000, to be known as its construction loan fund, to be used in aid of the construction of vessels of the best and most efficient type for the establishment and maintenance of service on steamship lines deemed desirable and necessary by the board, and such vessels shall be equipped with the most modern, the most efficient and the most economical machinery and commercial appliances. The board shall use such fund to the extent required upon such terms as the board may prescribe to aid persons, citizens of the United States, in the construction by them in private shipyards in the United States of the foregoing class of vessels. No aid shall be for a greater sum than two-thirds of the cost of the vessel or vessels to be constructed, and the board shall require such security, including a first lien upon the entire interest in the vessel or vessels so constructed as it shall deem necessary to insure the repayment of such sum with interest thereon and the maintenance of the service for which such vessel or vessels are built. SEC. 12. That all vessels may be reconditioned and kept in suitable repair and until sold shall be managed and operated by the board or chartered or leased by it on such terms and conditions as the board shall deem wise for the promotion and maintenance of an efficient merchant marine, pursuant to the policy and purposes declared in sections 1 and 5 of this Act; and the United States Shipping Board Emergency Fleet Corporation shall continue in existence and have authority to operate vessels, unless otherwise directed by law, until all vessels are sold in accordance with the provisions of this Act, the provision in section 11 of the "Shipping Act, 1916," to the contrary notwithstanding. SEC. 13. That the board is further authorized to sell all property other than vessels transferred to it under section 4 upon such terms and conditions, as the board may determine and prescribe. SEC. 14. That the net proceeds derived by the board prior to July 1, 1921, from any activities authorized by this Act, or by the "Shipping Act, 1916," or by the Acts specified in section 2 of this Act, except such an amount as the board shall deem necessary to withhold as operating capital, for the purposes of section 12 hereof, and for the insurance fund authorized in section 10 hereof, and for the construction loan fund authorized in section 11 hereof, shall be covered into the Treasury of the United States to the credit of the board and may be expended by it, within the limits of the amounts heretofore or hereafter authorized, for the construction, requisitioning, or purchasing of vessels. After July 1, 1921, such net proceeds, less such an amount as may be authorized annually by Congress to be withheld as operating capital, and less such sums as may be needed for such insurance and construction loan funds, shall be covered into the Treasury of the United States as miscellaneous receipts. The board shall, as rapidly as it deems advisable, withdraw investment of Government funds made during the emergency under the authority conferred by the Acts or parts of Acts repealed by section 2 of this Act and cover the net proceeds thereof into the Treasury of the United States as miscellaneous receipts. SEC. 15. That the board shall not require payment from the War Department for the charter hire of vessels owned by the United States Government furnished by the board from July 1, 1918, to June 30, 1919, inclusive, for the use of such department. SEC. 16. That all authorization to purchase, build, requisition, lease, exchange, or otherwise acquire houses, buildings or land under the Act entitled "An Act to authorize and empower the United States Shipping Board Emergency Fleet Corporation to purchase, lease, requisition, or otherwise acquire, and to sell or otherwise dispose of improved or unimproved lands, houses, buildings, and for other purposes," approved March 1, 1918, is hereby terminated: _Provided, however_, That expenditures may be made under said Act for the repair of houses and buildings already constructed, and the completion of such houses or buildings as have heretofore been contracted for or are under construction, if considered advisable, and the board is authorized and directed to dispose of all such properties or the interest of the United States in all such properties at as early a date as practicable, consistent with good business and the best interests of the United States. SEC. 17. That the board is authorized and directed to take over on January 1, 1921, the possession and control of, and to maintain and develop, all docks, piers, warehouses, wharves and terminal equipment and facilities, including all leasehold easements, rights of way, riparian rights and other rights, estates and interests therein or appurtenant thereto, acquired by the President by or under the Act entitled "An Act making appropriations to supply urgent deficiencies in appropriations for the fiscal year ending June 30, 1918, and prior fiscal years, on account of war expenses, and for other purposes," approved March 28, 1918. The possession and control of such other docks, piers, warehouses, wharves and terminal equipment and facilities or parts thereof, including all leasehold easements, rights of way, riparian rights and other rights, estates or interests therein or appurtenant thereto which were acquired by the War Department or the Navy Department for military or naval purposes during the war emergency may be transferred by the President to the board whenever the President deems such transfer to be for the best interests of the United States. The President may at any time he deems it necessary, by order setting out the need therefor and fixing the period of such need, permit or transfer the possession and control of any part of the property taken over by or transferred to the board under this section to the War Department or the Navy Department for their needs, and when in the opinion of the President such need therefor ceases the possession and control of such property shall revert to the board. None of such property shall be sold except as may be hereafter provided by law. SEC. 18. That section 9 of the "Shipping Act, 1916," is amended to read as follows: "SEC. 9. That any vessel purchased, chartered, or leased from the board, by persons who are citizens of the United States, may be registered or enrolled and licensed, or both registered and enrolled and licensed, as a vessel of the United States and entitled to the benefits and privileges appertaining thereto: _Provided_, That foreign-built vessels admitted to American registry or enrollment and license under this Act, and vessels owned by any corporation in which the United States is a stockholder, and vessels sold, leased, or chartered by the board to any person a citizen of the United States, as provided in this Act, may engage in the coastwise trade of the United States while owned, leased, or chartered by such a person. "Every vessel purchased, chartered, or leased from the board shall, unless otherwise authorized by the board, be operated only under such registry or enrollment and license. Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein. "It shall be unlawful to sell, transfer or mortgage, or, except under regulations prescribed by the board, to charter, any vessel purchased from the board or documented under the laws of the United States to any person not a citizen of the United States, or to put the same under a foreign registry or flag, without first obtaining the board's approval. "Any vessel chartered, sold, transferred or mortgaged to a person not a citizen of the United States or placed under a foreign registry or flag, or operated, in violation of any provision of this section shall be forfeited to the United States, and whoever violates any provision of this section shall be guilty of a misdemeanor and subject to a fine of not more than $5,000, or to imprisonment for not more than five years, or both." SEC. 19. (1) The board is authorized and directed in aid of the accomplishment of the purposes of this Act (a) To make all necessary rules and regulations to carry out the provisions of this Act; (b) To make rules and regulations affecting shipping in the foreign trade not in conflict with law in order to adjust or meet general or special conditions unfavorable to shipping in the foreign trade, whether in any particular trade or upon any particular route or in commerce generally and which arise out of or result from foreign laws, rules, or regulations or from competitive methods or practices employed by owners, operators, agents, or masters of vessels of a foreign country; and (c) To request the head of any department, board, bureau, or agency of the Government to suspend, modify, or annul rules or regulations which have been established by such department, board, bureau, or agency, or to make new rules or regulations affecting shipping in the foreign trade other than such rules or regulations relating to the Public Health Service, the Consular Service, and the Steamboat Inspection Service. (2) No rule or regulation shall hereafter be established by any department, board, bureau, or agency of the Government which affect shipping in the foreign trade, except rules or regulations affecting the Public Health Service, the Consular Service, and the Steamboat Inspection Service, until such rule or regulation has been submitted to the board for its approval and final action has been taken thereon by the board or the President. (3) Whenever the head of any department, board, bureau, or agency of the Government refuses to suspend, modify, or annul any rule or regulation, or make a new rule or regulation upon request of the board, as provided in subdivision (c) of paragraph (1) of this section, or objects to the decision of the board in respect to the approval of any rule or regulation, as provided in paragraph (2) of this section, either the board or the head of the department, board, bureau, or agency which has established or is attempting to establish the rule or regulation in question may submit the facts to the President, who is hereby authorized to establish or suspend, modify, or annul such rule or regulation. (4) No rule or regulation shall be established which in any manner gives vessels owned by the United States any preference or favor over those vessels documented under the laws of the United States and owned by persons who are citizens of the United States. SEC. 20. (1) That section 14 of the Shipping Act, 1916, as amended, is amended to read as follows: "SEC. 14. That no common carrier by water shall, directly or indirectly, in respect to the transportation by water of passengers or property between a port of a State, Territory, District, or possession of the United States and any other such port or a port of a foreign country,-- "First. Pay, or allow, or enter into any combination, agreement, or understanding, express or implied, to pay or allow, a deferred rebate to any shipper. The term 'deferred rebate' in this Act means a return of any portion of the freight money by a carrier to any shipper as a consideration for the giving of all or any portion of his shipments to the same or any other carrier, or for any other purpose, the payment of which is deferred beyond the completion of the service for which it is paid, and is made only if, during both the period for which computed and the period of deferment, the shipper has complied with the terms of the rebate agreement or arrangement. "Second. Use a fighting ship either separately or in conjunction with any other carrier, through agreement or otherwise. The term 'fighting ship' in this Act means a vessel used in a particular trade by a carrier or group of carriers for the purpose of excluding, preventing or reducing competition by driving another carrier out of said trade. "Third. Retaliate against any shipper by refusing, or threatening to refuse, space accommodations when such are available, or resort to other discriminating or unfair methods, because such shipper has patronized any other carrier or has filed a complaint charging unfair treatment, or for any other reason. "Fourth. Make any unfair or unjustly discriminatory contract with any shipper based on the volume of freight offered, or unfairly treat or unjustly discriminate against any shipper in the matter of (a) cargo space accommodations or other facilities, due regard being had for the proper loading of the vessel and the available tonnage; (b) the loading and landing of freight in proper condition; or (c) the adjustment and settlement of claims. "Any carrier who violates any provision of this section shall be guilty of a misdemeanor punishable by a fine of not more than $25,000 for each offense." (2) The Shipping Act, 1916, as amended, is amended by inserting after section 14 a new section to read as follows: "SEC. 14A. The board upon its own initiative may, or upon complaint shall, after due notice to all parties in interest and hearing, determine whether any person, not a citizen of the United States and engaged in transportation by water of passengers or property-- "(1) Has violated any provision of section 14, or "(2) Is a party to any combination, agreement, or understanding, express or implied, that involves in respect to transportation of passengers or property between foreign ports, deferred rebates or any other unfair practice designated in section 14, and that excludes from admission upon equal terms with all other parties thereto, a common carrier by water which is a citizen of the United States and which has applied for such admission. "If the board determines that any such person has violated any such provision or is a party to any such combination, agreement, or understanding, the board shall thereupon certify such fact to the Secretary of Commerce. The Secretary shall thereafter refuse such person the right of entry for any ship owned or operated by him or by any carrier directly or indirectly controlled by him, into any port of the United States, or any Territory, District, or possession thereof, until the board certifies that the violation has ceased or such combination, agreement, or understanding has been terminated." SEC. 21. That from and after February 1, 1922, the coastwise laws of the United States shall extend to the island Territories and possessions of the United States not now covered thereby, and the board is directed prior to the expiration of such year to have established adequate steamship service at reasonable rates to accommodate the commerce and the passenger travel of said islands and to maintain and operate such service until it can be taken over and operated and maintained upon satisfactory terms by private capital and enterprise: _Provided_, That if adequate shipping service is not established by February 1, 1922, the President shall extend the period herein allowed for the establishment of such service in the case of any island Territory or possession for such time as may be necessary for the establishment of adequate shipping facilities therefor: _Provided further_, That until Congress shall have authorized the registry as vessels of the United States of vessels owned in the Philippine Islands, the Government of the Philippine Islands is hereby authorized to adopt, from time to time, and enforce regulations governing the transportation of merchandise and passengers between ports or places in the Philippine Archipelago: _And provided further_, That the foregoing provisions of this section shall not take effect with reference to the Philippine Islands until the President of the United States after a full investigation of the local needs and conditions shall, by proclamation, declare that an adequate shipping service has been established as herein provided and fix a date for the going into effect of the same. SEC. 22. That the Act entitled "An Act giving the United States Shipping Board power to suspend present provisions of law and permit vessels of foreign registry and foreign-built vessels admitted to American registry under the Act of August 18, 1914, to engage in the coastwise trade during the present war and for a period of one hundred and twenty days thereafter, except the coastwise trade with Alaska," approved October 6, 1917, is hereby repealed: _Provided_, That all foreign-built vessels admitted to American registry, owned on February 1, 1920, by persons citizens of the United States, and all foreign-built vessels owned by the United States at the time of the enactment of this Act, when sold and owned by persons citizens of the United States, may engage in the coastwise trade so long as they continue in such ownership, subject to the rules and regulations of such trade: _Provided_, That the board is authorized to issue permits for the carrying of passengers in foreign ships if it deems it necessary so to do, operating between the Territory of Hawaii and the Pacific Coast up to February 1, 1922. SEC. 23. That the owner of a vessel documented under the laws of the United States and operated in foreign trade shall, for each of the ten taxable years while so operated, beginning with the first taxable year ending after the enactment of this Act, be allowed as a deduction for the purpose of ascertaining his net income subject to the war-profits and excess-profits taxes imposed by Title III of the Revenue Act of 1918 an amount equivalent to the net earnings of such vessel during such taxable year, determined in accordance with rules and regulations to be made by the board: _Provided_, That such owner shall not be entitled to such deduction unless during such taxable year he invested, or set aside under rules and regulations to be made by the board in a trust fund for investment, in the building in shipyards in the United States of new vessels of a type and kind approved by the board, an amount, to be determined by the Secretary of the Treasury and certified by him to the board, equivalent to the war-profits and excess-profits taxes that would have been payable by such owner on account of the net earnings of such vessels but for the deduction allowed under the provisions of this section: _Provided further_, That at least two-thirds of the cost of any vessel constructed under this paragraph shall be paid for out of the ordinary funds or capital of the person having such vessel constructed. That during the period of ten years from the enactment of this Act any person a citizen of the United States who may sell a vessel documented under the laws of the United States and built prior to January 1, 1914, shall be exempt from all income taxes that would be payable upon any of the proceeds of such sale under Title I, Title II, and Title III of the Revenue Act of 1918 if the entire proceeds thereof shall be invested in the building of new ships in American shipyards, such ships to be documented under the laws of the United States and to be of a type approved by the board. SEC. 24. That all mails of the United States shipped or carried on vessels shall, if practicable, be shipped or carried on American-built vessels documented under the laws of the United States. No contract hereafter made with the Postmaster General for carrying mails on vessels so built and documented shall be assigned or sublet, and no mails covered by such contract shall be carried on any vessel not so built and documented. No money shall be paid out of the Treasury of the United States on or in relation to any such contract for carrying mails on vessels so built and documented when such contract has been assigned or sublet or when mails covered by such contract are in violation of the terms thereof carried on any vessel not so built and documented. The board and the Postmaster General, in aid of the development of a merchant marine adequate to provide for the maintenance and expansion of the foreign or coastwise trade of the United States and of a satisfactory postal service in connection therewith, shall from time to time determine the just and reasonable rate of compensation to be paid for such service, and the Postmaster General is hereby authorized to enter into contracts within the limits of appropriations made therefor by Congress to pay for the carrying of such mails in such vessels at such rate. Nothing herein shall be affected by the Act entitled "An Act to provide for ocean mail service between the United States and foreign ports, and to promote commerce," approved March 3, 1891. SEC. 25. That for the classification of vessels owned by the United States, and for such other purposes in connection therewith as are the proper functions of a classification bureau, all departments, boards, bureaus, and commissions of the Government are hereby directed to recognize the American Bureau of Shipping as their agency so long as the American Bureau of Shipping continues to be maintained as an organization which has no capital stock and pays no dividends: _Provided_, That the Secretary of Commerce and the chairman of the board shall each appoint one representative who shall represent the Government upon the executive committee of the American Bureau of Shipping, and the bureau shall agree that these representatives shall be accepted by them as active members of such committee. Such representatives of the Government shall serve without any compensation, except necessary traveling expenses: _Provided further_, That the official list of merchant vessels published by the Government shall hereafter contain a notation clearly indicating all vessels classed by the American Bureau of Shipping. SEC. 26. That cargo vessels documented under the laws of the United States may carry not to exceed sixteen persons in addition to the crew between any ports or places in the United States or its Districts, Territories, or possessions, or between any such port or place and any foreign port, or from any foreign port to another foreign port, and such vessels shall not be held to be "passenger vessels" or "vessels carrying passengers" within the meaning of the inspection laws and the rules and regulations thereunder: _Provided_, That nothing herein shall be taken to exempt such vessels from the laws, rules, and regulations respecting life-saving equipment: _Provided further_, That when any such vessel carries persons other than the crew as herein provided for, the owner, agent, or master of the vessel shall first notify such persons of the presence on board of any dangerous articles, as defined by law, or of any other condition or circumstances which would constitute a risk of safety for passenger or crew. The privilege bestowed by this section on vessels of the United States shall be extended insofar as the foreign trade is concerned to the cargo vessels of any nation which allows the like privilege to cargo vessels of the United States in trades not restricted to vessels under its own flag. Failure on the part of the owner, agent, or master of the vessel to give such notice shall subject the vessel to a penalty of $500, which may be mitigated or remitted by the Secretary of Commerce upon a proper representation of the facts. SEC. 27. That no merchandise shall be transported by water, or by land and water, on penalty of forfeiture thereof, between points in the United States, including Districts, Territories, and possessions thereof embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States, or vessels to which the privilege of engaging in the coastwise trade is extended by sections 18 or 22 of this Act: _Provided_, That this section shall not apply to merchandise transported between points within the continental United States, excluding Alaska, over through routes heretofore or hereafter recognized by the Interstate Commerce Commission for which routes rate tariffs have been or shall hereafter be filed with said commission when such routes are in part over Canadian rail lines and their own or other connecting water facilities: _Provided further_, That this section shall not become effective upon the Yukon river until the Alaska Railroad shall be completed and the Shipping Board shall find that proper facilities will be furnished for transportation by persons citizens of the United States for properly handling the traffic. SEC. 28. That no common carrier shall charge, collect, or receive, for transportation subject to the Interstate Commerce Act of persons or property, under any joint rate, fare, or charge, or under any export, import, or other proportional rate, fare, or charge, which is based in whole, or in part on the fact that the persons or property affected thereby is to be transported to, or has been transported from, any port in a possession or dependency of the United States, or in a foreign country, by a carrier by water in foreign commerce, any lower rate, fare, or charge than that charged, collected, or received by it for the transportation of persons, or of a like kind of property, for the same distance, in the same direction, and over the same route, in connection with commerce wholly within the United States, unless the vessel so transporting such persons or property is, or unless it was at the time of such transportation by water, documented under the laws of the United States. Whenever the board is of the opinion, however, that adequate shipping facilities to or from any port in a possession or dependency of the United States or a foreign country are not afforded by vessels so documented, it shall certify this fact to the Interstate Commerce Commission, and the commission may, by order, suspend the operation of the provisions of this section with respect to the rates, fares, and charges for the transportation by rail of persons and property transported from, or to be transported, to such ports, for such length of time and under such terms and conditions as it may prescribe in such order, or in any order supplemental thereto. Such suspension of operation of the provisions of this section may be terminated by order of the commission whenever the board is of the opinion that adequate shipping facilities by such vessels to such ports are afforded and shall so certify to the commission. SEC. 29. (a) That whenever used in this section-- (1) The term "association" means any association, exchange, pool, combination, or other arrangement for concerted action; and (2) The term "marine insurance companies" means any persons, companies, or associations, authorized to write marine insurance or reinsurance under the laws of the United States or of a State, Territory, District, or possession thereof. (b) Nothing contained in the "antitrust laws" as designated in section 1 of the Act entitled "An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes," approved October 15, 1914, shall be construed as declaring illegal an association entered into by marine insurance companies for the following purposes: To transact a marine insurance and reinsurance business in the United States and in foreign countries and to reinsure or otherwise apportion among its membership the risks undertaken by such association or any of the component members. SEC. 30. Subsection A. That this section may be cited as the "Ship Mortgage Act, 1920." DEFINITIONS. Subsection B. When used in this section-- (1) The term "document" includes registry and enrollment and license; (2) The term "documented" means registered or enrolled or licensed under the laws of the United States, whether permanently or temporarily; (3) The term "port of documentation" means the port at which the vessel is documented, in accordance with law; (4) The term "vessel of the United States" means any vessel documented under the laws of the United States and such vessel shall be held to continue to be so documented until its documents are surrendered with the approval of the board; and (5) The term "mortgagee," in the case of a mortgage involving a trust deed and a bond issue thereunder, means the trustee designated in such deed. RECORDING OF SALES, CONVEYANCES, AND MORTGAGES OF VESSELS OF THE UNITED STATES. Subsection C. (a) No sale, conveyance, or mortgage which, at the time such sale, conveyance, or mortgage is made, includes a vessel of the United States, or any portion thereof, as the whole or any part of the property sold, conveyed, or mortgaged shall be valid, in respect to such vessel, against any person other than the grantor or mortgagor, his heir or devisee, and a person having actual notice thereof, until such bill of sale, conveyance, or mortgage is recorded in the office of the collector of customs of the port of documentation of such vessel, as provided in subdivision (b) of this subsection. (b) Such collector of customs shall record bills of sale, conveyances, and mortgages, delivered to him, in the order of their reception, in books to be kept for that purpose and indexed to show-- (1) The name of the vessel; (2) The names of the parties to the sale, conveyance, or mortgage; (3) The time and date of reception of the instrument; (4) The interest in the vessel so sold, conveyed, or mortgaged; and (5) The amount and date of maturity of the mortgage. Subsection D. (a) A valid mortgage which, at the time it is made includes the whole of any vessel of the United States of 200 gross tons and upwards, shall in addition have, in respect to such vessel and as of the date of the compliance with all the provisions of this subdivision, the preferred status given by the provisions of subsection M, if-- (1) The mortgage is indorsed upon the vessel's documents in accordance with the provisions of this section; (2) The mortgage is recorded as provided in subsection C, together with the time and date when the mortgage is so indorsed; (3) An affidavit is filed with the record of such mortgage to the effect that the mortgage is made in good faith and without any design to hinder, delay, or defraud any existing or future creditor of the mortgagor or any lienor of the mortgaged vessel; (4) The mortgage does not stipulate that the mortgagee waives the preferred status thereof; and (5) The mortgagee is a citizen of the United States. (b) Any mortgage which complies in respect to any vessel with the conditions enumerated in this subsection is hereafter in this section called a "preferred mortgage" as to such vessel. (c) There shall be indorsed upon the documents of a vessel covered by a preferred mortgage-- (1) The name of the mortgagor and mortgagee; (2) The time and date the indorsement is made; (3) The amount and date of maturity of the mortgage; and (4) Any amount required to be indorsed by the provisions of subdivision (e) or (f) of this subsection. (d) Such indorsement shall be made (1) by the collector of customs of the port of documentation of the mortgaged vessel, or (2) by the collector of customs of any port in which the vessel is found, if such collector is directed to make the indorsement by the collector of customs of the port of documentation; and no clearance shall be issued to the vessel until such indorsement is made. The collector of customs of the port of documentation shall give such direction by wire or letter at the request of the mortgagee and upon the tender of the cost of communication of such direction. Whenever any new document is issued for the vessel, such indorsement shall be transferred to and indorsed upon the new document by the collector of customs. (e) A mortgage which includes property other than a vessel shall not be held a preferred mortgage unless the mortgage provides for the separate discharge of such property by the payment of a specified portion of the mortgage indebtedness. If a preferred mortgage so provides for the separate discharge, the amount of the portion of such payment shall be indorsed upon the documents of the vessel. (f) If a preferred mortgage includes more than one vessel and provides for the separate discharge of each vessel by the payment of a portion of the mortgage indebtedness, the amount of such portion of such payment shall be indorsed upon the documents of the vessel. In case such mortgage does not provide for the separate discharge of a vessel and the vessel is to be sold upon the order of a district court of the United States in a suit in rem in admiralty, the court shall determine the portion of the mortgage indebtedness increased by 20 per centum (1) which, in the opinion of the court, the approximate value of the vessel bears to the approximate value of all the vessels covered by the mortgage, and (2) upon the payment of which the vessel shall be discharged from the mortgage. Subsection E. The collector of customs upon the recording of a preferred mortgage shall deliver two certified copies thereof to the mortgagor who shall place, and use due diligence to retain, one copy on board the mortgaged vessel and cause such copy and the documents of the vessel to be exhibited by the master to any person having business with the vessel, which may give rise to a maritime lien upon the vessel or to the sale, conveyance, or mortgage thereof. The master of the vessel shall, upon the request of any such person, exhibit to him the documents of the vessel and the copy of any preferred mortgage of the vessel placed on board thereof. Subsection F. The mortgagor (1) shall, upon request of the mortgagee, disclose in writing to him prior to the execution of any preferred mortgage, the existence of any maritime lien, prior mortgage, or other obligation or liability upon the vessel to be mortgaged, that is known to the mortgagor, and (2), without the consent of the mortgagee, shall not incur, after the execution of such mortgage and before the mortgagee has had a reasonable time in which to record the mortgage and have indorsements in respect thereto made upon the documents of the vessel, any contractual obligation creating a lien upon the vessel other than a lien for wages of stevedores when employed directly by the owner, operator, master, ship's husband, or agent of the vessel, for wages of the crew of the vessel, for general average, or for salvage, including contract salvage, in respect to the vessel. Subsection G. (a) The collector of customs of the port of documentation shall, upon the request of any person, record notice of his claim of a lien upon a vessel covered by a preferred mortgage, together with the nature, date of creation, and amount of the lien, and the name and address of the person. Any person who has caused notice of his claim of lien to be so recorded shall, upon a discharge in whole or in part of the indebtedness, forthwith file with the collector of customs a certificate of such discharge. The collector of customs shall thereupon record the certificate. (b) The mortgagor, upon a discharge in whole or in part of the mortgage indebtedness, shall forthwith file with the collector of customs for the port of documentation of the vessel, a certificate of such discharge. Such collector of customs shall thereupon record the certificate. In case of a vessel covered by a preferred mortgage, the collector of customs at the port of documentation shall (1) indorse upon the documents of the vessel, or direct the collector of customs at any port in which the vessel is found, to so indorse, the fact of such discharge, and (2) shall deny clearance to the vessel until such indorsement is made. Subsection H. (a) No bill of sale, conveyance, or mortgage shall be recorded unless it states the interest of the grantor or mortgagor in the vessel, and the interest so sold, conveyed, or mortgaged. (b) No bill of sale, conveyance, mortgage, notice of claim of lien, or certificate of discharge thereof, shall be recorded unless previously acknowledged before a notary public or other officer authorized by a law of the United States, or of a State, Territory, District, or possession thereof, to take acknowledgment of deeds. (c) In case of a change in the port of documentation of a vessel of the United States, no bill of sale, conveyance, or mortgage shall be recorded at the new port of documentation unless there is furnished to the collector of customs of such port, together with the copy of the bill of sale, conveyance, or mortgage to be recorded, a certified copy of the record of the vessel at the former port of documentation furnished by the collector of such port. The collector of customs at the new port of documentation is authorized and directed to record such certified copy. (d) A preferred mortgage may bear such rate of interest as is agreed by the parties thereto. Subsection I. Each collector of customs shall permit records made under the provisions of this section to be inspected during office hours, under such reasonable regulations as the collector may establish. Upon the request of any person the collector of customs shall furnish him from the records of the collector's office (1) a certificate setting forth the names of the owners of any vessel, the interest held by each owner, and the material facts as to any bill of sale or conveyance of, any mortgage covering, or any lien or other incumbrance upon, a specified vessel, (2) a certified copy of any bill of sale, conveyance, mortgage, notice of claim of lien, or certificate of discharge in respect to such vessel, or (3) a certified copy as required by subdivision (c) of subsection H. The collector of customs shall collect a fee for any bill of sale, conveyance, or mortgage recorded, or any certificate or certified copy furnished, by him, in the amount of 20 cents a folio with a minimum charge of $1.00. All such fees shall be covered into the Treasury of the United States as miscellaneous receipts. PENALTIES. Subsection J. (a) If the master of the vessel willfully fails to exhibit the documents of the vessel or the copy of any preferred mortgage thereof, as required by subsection E, the board of local inspectors of vessels having jurisdiction of the license of the master, may suspend or cancel such license, subject to the provisions of "An Act to provide for appeals from decision of boards of local inspectors of vessels and for other purposes," approved June 10, 1918. (b) A mortgagor who, with intent to defraud, violates any provision of subsection F, and if the mortgagor is a corporation or association, the president or other principal executive officer of the corporation or association, shall upon conviction thereof be held guilty of a misdemeanor and shall be fined not more than $1,000 or imprisonment not more than 2 years, or both. The mortgaged indebtedness shall thereupon become immediately due and payable at the election of the mortgagee. (c) If any person enters into any contract secured by, or upon the credit of, a vessel of the United States covered by a preferred mortgage, and suffers pecuniary loss by reason of the failure of the collector of customs, or any officer, employee, or agent thereof, properly to perform any duty required of the collector under the provisions of this section, the collector of customs shall be liable to such person for damages in the amount of such loss. If any such person is caused any such loss by reason of the failure of the mortgagor, or master of the mortgaged vessel, or any officer, employee, or agent thereof, to comply with any provision of subsection E or F or to file an affidavit as required by subdivision (a) of subsection D, correct in each particular thereof, the mortgagor shall be liable to such person for damages in the amount of such loss. The district courts of the United States are given jurisdiction (but not to the exclusion of the courts of the several States, Territories, Districts, or possessions) of suits for the recovery of such damages, irrespective of the amount involved in the suit or the citizenship of the parties thereto. Such suit shall be begun by personal service upon the defendant within the limits of the district. Upon judgment for the plaintiff in any such suit, the court shall include in the judgment an additional amount for costs of the action and a reasonable counsel's fee, to be fixed by the court. FORECLOSURE OF PREFERRED MORTGAGES. Subsection K. A preferred mortgage shall constitute a lien upon the mortgaged vessel in the amount of the outstanding mortgage indebtedness secured by such vessel. Upon the default of any term or condition of the mortgage, such lien may be enforced by the mortgagee by suit in rem in admiralty. Original jurisdiction of all such suits is granted to the district courts of the United States exclusively. In addition to any notice by publication, actual notice of the commencement of any such suit shall be given by the libellant, in such manner as the court shall direct, to (1) the master, other ranking officer, or caretaker of the vessel, and (2) any person who has recorded a notice of claim of an undischarged lien upon the vessel, as provided in subsection G, unless after search by the libellant satisfactory to the court, such mortgagor, master, other ranking officer, caretaker, or claimant is not found within the United States. Failure to give notice to any such person, as required by this subsection, shall not constitute a jurisdictional defect; but the libellant shall be liable to such person for damages in the amount of his interest in the vessel terminated by the suit. Suit in personam for the recovery of such damages may be brought in accordance with the provisions of subdivision (c) of subsection J. Subsection L. In any suit in rem in admiralty for the enforcement of the preferred mortgage lien, the court may appoint a receiver and, in its discretion, authorize the receiver to operate the mortgaged vessel. The marshal may be authorized and directed by the court to take possession of the mortgaged vessel notwithstanding the fact that the vessel is in the possession or under the control of any person claiming a possessory common-law lien. Subsection M. (a) When used hereinafter in this section, the term "preferred maritime lien" means (1) a lien arising prior in time to the recording and indorsement of a preferred mortgage in accordance with the provisions of this section; or (2) a lien for damages arising out of tort, for wages of a stevedore when employed directly by the owner, operator, master, ship's husband, or agent of the vessel, for wages of the crew of the vessel, for general average, and for salvage, including contract salvage. (b) Upon the sale of any mortgaged vessel by order of a district court of the United States in any suit in rem in admiralty for the enforcement of a preferred mortgage lien thereon, all preëxisting claims in the vessel, including any possessory common-law lien of which a lienor is deprived under the provisions of subsection L shall be held terminated and shall thereafter attach, in like amount and in accordance with their respective priorities, to the proceeds of the sale; except that the preferred mortgage lien shall have priority over all claims against the vessel, except (1) preferred maritime liens, and (2) expenses and fees allowed and costs taxed, by the court. Subsection N. (a) Upon the default of any term or condition of a preferred mortgage upon a vessel, the mortgagee may, in addition to all other remedies granted by this section, bring suit in personam in admiralty in a district court of the United States, against the mortgagor for the amount of the outstanding mortgage indebtedness secured by such vessel or any deficiency in the full payment thereof. (b) This section shall not be construed, in the case of a mortgage covering, in addition to vessels, realty or personalty other than vessels, or both, to authorize the enforcement by suit in rem in admiralty of the rights of the mortgagee in respect to such realty or personalty other than vessels. TRANSFERS OF MORTGAGED VESSELS AND ASSIGNMENT OF VESSEL MORTGAGES. Subsection O. (a) The documents of a vessel of the United States covered by a preferred mortgage may not be surrendered (except in the case of the forfeiture of the vessel or its sale by the order of any court of the United States or any foreign country) without the approval of the board. The board shall refuse such approval unless the mortgagee consents to such surrender. (b) The interest of the mortgagee in a vessel of the United States covered by a mortgage, shall not be terminated by the forfeiture of the vessel for a violation of any law of the United States, unless the mortgagee authorized, consented, or conspired to effect the illegal act, failure, or omission which constituted such violation. (c) Upon the sale of any vessel of the United States covered by a preferred mortgage, by order of a district court of the United States in any suit in rem in admiralty for the enforcement of a maritime lien other than a preferred maritime lien, the vessel shall be sold free from all preëxisting claims thereon; but the court shall, upon the request of the mortgagee, the libellant, or an intervenor, require the purchaser at such sale to give and the mortgagor to accept a new mortgage of the vessel for the balance of the term of the original mortgage. The conditions of such new mortgage shall be the same, so far as practicable, as those of the original mortgage and shall be subject to the approval of the court. If such new mortgage is given, the mortgagee shall not be paid from the proceeds of the sale and the amount payable as the purchase price shall be held diminished in the amount of the new mortgage indebtedness. (d) No rights under a mortgage of a vessel of the United States shall be assigned to any person not a citizen of the United States without the approval of the board. Any assignment in violation of any provision of this section shall be void. (e) No vessel of the United States shall be sold by order of a district court of the United States in any suit in rem in admiralty to any person not a citizen of the United States. MARITIME LIENS FOR NECESSARIES. Subsection P. Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel. Subsection Q. The following persons shall be presumed to have authority from the owner to procure repairs, supplies, towage, use of dry dock or marine railway, and other necessaries for the vessel: The managing owner, ship's husband, master, or any person to whom the management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel. Subsection R. The officers and agents of a vessel specified in subsection Q shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel; but nothing in this section shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor. Subsection S. Nothing in this section shall be construed to prevent the furnisher of repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, or the mortgagee, from waiving his right to a lien, or in the case of a preferred mortgage lien, to the preferred status of such lien, at any time, by agreement or otherwise; and this section shall not be construed to affect the rules of law now existing in regard to (1) the right to proceed against the vessel for advances, (2) laches in the enforcement of liens upon vessels, (3) the right to proceed in personam, (4) the rank of preferred maritime liens among themselves, or (5) priorities between maritime liens and mortgages, other than preferred mortgages, upon vessels of the United States. Subsection T. This section shall supersede the provisions of all State statutes conferring liens on vessels, in so far as such statutes purport to create rights of action to be enforced by suits in rem in admiralty against vessels for repairs, supplies, towage, use of dry dock or marine railway, and other necessaries. MISCELLANEOUS PROVISIONS. Subsection U. This section shall not apply (1) to any existing mortgage, or (2) to any mortgage hereafter placed on any vessel now under an existing mortgage, so long as such existing mortgage remains undischarged. Subsection V. The Secretary of Commerce is authorized and directed to furnish collectors of customs with all necessary books and records, and with certificates of registry and of enrollment and license in such form as provides for the making of all indorsements thereon required by this section. Subsection W. The Secretary of Commerce is authorized to make such regulations in respect to the recording and indorsing of mortgages covering vessels of the United States, as he deems necessary to the efficient execution of the provisions of this section. Subsection X. Sections 4192 to 4196, inclusive, of the Revised Statutes of the United States, as amended, and the Act entitled "An Act relating to liens on vessels for repairs, supplies, or other necessaries," approved June 23, 1910, are repealed. This section, however, so far as not inconsistent with any of the provisions of law so repealed, shall be held a reënactment of such repealed law, and any right or obligation based upon any provision of such law and accruing prior to such repeal, may be prosecuted in the same manner and to the same effect as if this Act had not been passed. SEC. 31. That section 4530 of the Revised Statutes of the United States is amended to read as follows: "SEC. 4530. Every seaman on a vessel of the United States shall be entitled to receive on demand from the master of the vessel to which he belongs one-half part of the balance of his wages earned and remaining unpaid at the time when such demand is made at every port where such vessel, after the voyage has been commenced, shall load or deliver cargo before the voyage is ended, and all stipulations in the contract to the contrary shall be void: _Provided_, Such a demand shall not be made before the expiration of, nor oftener than once in, five days nor more than once in the same harbor on the same entry. Any failure on the part of the master to comply with this demand shall release the seaman from his contract and he shall be entitled to full payment of wages earned. And when the voyage is ended every such seaman shall be entitled to the remainder of the wages which shall be then due him, as provided in section 4529 of the Revised Statutes: _Provided further_, That notwithstanding any release signed by any seaman under section 4552 of the Revised Statutes any court having jurisdiction may upon good cause shown set aside such release and take such action as justice shall require: _And provided further_, That this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement." SEC. 32. That paragraph (a) of section 10 of the Act entitled "An Act to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade, and for other purposes," approved June 26, 1884, as amended, is hereby amended to read as follows: "SEC. 10. (a) That it shall be, and is hereby, made unlawful in any case to pay any seaman wages in advance of the time when he has actually earned the same, or to pay such advance wages, or to make any order, or note, or other evidence of indebtedness therefor to any other person, or to pay any person, for the shipment of seamen when payment is deducted or to be deducted from a seaman's wages. Any person violating any of the foregoing provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than $25 nor more than $100, and may also be imprisoned for a period of not exceeding six months, at the discretion of the court. The payment of such advance wages or allotment, whether made within or without the United States or territory subject to the jurisdiction thereof, shall in no case except as herein provided absolve the vessel or the master or the owner thereof from the full payment of wages after the same shall have been actually earned, and shall be no defense to a libel suit or action for the recovery of such wages. If any person shall demand or receive, either directly or indirectly, from any seaman or other person seeking employment, as seaman, or from any person on his behalf, any remuneration whatever for providing him with employment, he shall for every such offense be deemed guilty of a misdemeanor and shall be imprisoned not more than six months or fined not more than $500." SEC. 33. That section 20 of such Act of March 4, 1915, be, and is, amended to read as follows: "SEC. 20. That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located." SEC. 34. That in the judgment of Congress, articles or provisions in treaties or conventions to which the United States is a party, which restrict the right of the United States to impose discriminating customs duties on imports entering the United States in foreign vessels and in vessels of the United States, and which also restrict the right of the United States to impose discriminatory tonnage dues on foreign vessels and on vessels of the United States entering the United States should be terminated, and the President is hereby authorized and directed within ninety days after this Act becomes law to give notice to the several Governments, respectively, parties to such treaties or conventions, that so much thereof as imposes any such restriction on the United States will terminate on the expiration of such periods as may be required for the giving of such notice by the provisions of such treaties or conventions. SEC. 35. That the power and authority vested in the board by this Act, except as herein otherwise specifically provided, may be exercised directly by the board, or by it through the United States Shipping Board Emergency Fleet Corporation. SEC. 36. That if any provision of this Act is declared unconstitutional or the application of any provision to certain circumstances be held invalid, the remainder of the Act and the application of such provisions to circumstances other than those as to which it is held invalid shall not be affected thereby. SEC. 37. That when used in this Act, unless the context otherwise requires, the terms "person," "vessel," "documented under the laws of the United States," and "citizen of the United States" shall have the meaning assigned to them by sections 1 and 2 of the "Shipping Act, 1916," as amended by this Act; the term "board" means the United States Shipping Board; and the term "alien" means any person not a citizen of the United States. SEC. 38. That section 2 of the Shipping Act, 1916, is amended to read as follows: "SEC. 2. (a) That within the meaning of this Act no corporation, partnership, or association shall be deemed a citizen of the United States unless the controlling interest therein is owned by citizens of the United States, and, in the case of a corporation, unless its president and managing directors are citizens of the United States and the corporation itself is organized under the laws of the United States or of a State, Territory, District, or possession thereof, but in the case of a corporation, association, or partnership operating any vessel in the coastwise trade the amount of interest required to be owned by citizens of the United States shall be 75 per centum. "(b) The controlling interest in a corporation shall not be deemed to be owned by citizens of the United States (a) if the title to a majority of the stock thereof is not vested in such citizens free from any trust or fiduciary obligation in favor of any person not a citizen of the United States; or (b) if the majority of the voting power in such corporations is not vested in citizens of the United States; or (c) if through any contract or understanding it is so arranged that the majority of the voting power may be exercised, directly or indirectly, in behalf of any person who is not a citizen of the United States; or (d) if by any other means whatsoever control of the corporation is conferred upon or permitted to be exercised by any person who is not a citizen of the United States. "(c) Seventy-five per centum of the interest in a corporation shall not be deemed to be owned by citizens of the United States (a) if the title to 75 per centum of its stock is not vested in such citizens free from any trust or fiduciary obligation in favor of any person not a citizen of the United States; or (b) if 75 per centum of the voting power in such corporations is not vested in citizens of the United States; or (c) if, through any contract or understanding it is so arranged that more than 25 per centum of the voting power in such corporation may be exercised, directly or indirectly, in behalf of any person who is not a citizen of the United States; or (d) if by any other means whatsoever control of any interest in the corporation in excess of 25 per centum is conferred upon or permitted to be exercised by any person who is not a citizen of the United States. "(d) The provisions of this Act shall apply to receivers and trustees of all persons to whom the Act applies, and to the successors or assignees of such persons." SEC. 39. That this Act may be cited as the Merchant Marine Act, 1920. Approved June 5, 1920. [34] Public, No. 261, 66th Congress. An Act to provide for the promotion and maintenance of the American merchant marine, to repeal certain emergency legislation, and provide for the disposition, regulation, and use of property acquired thereunder, and for other purposes. APPENDIX III PROTEST The following is a specimen of a marine protest. It is taken from Lawrence _v._ Minturn, 17 How. 100. It was signed by all the officers and by such of the crew as could write: August 29, 1851, Latitude 31° 0´ N., Longitude 61° 5´ W. At sea, on board ship _Hornet_ of New York, William W. Lawrence, master, bound from New York to San Francisco, California. We, the undersigned, master, officers and mariners of the ship _Hornet_, of New York, do, after mature and serious deliberation, enter this solemn protest: That on August 26th, 1851, the ship _Hornet_ being then in or about the longitude of 49° W., latitude 37° N., experiencing a gale of wind from the south, veering to N. W.: and that during said gale, which lasted until the night of the 27th of August, the weight of the deck load, consisting of two boilers, with furnaces attached, and two steam chimneys (the whole supposed to be of the weight of forty tons or thereabouts), did cause the ship to labor very hard, rolling gunwale deep, shipping large bodies of water, straining the ship in her upper works and decks, causing the ship to leak badly, and her pumps constantly worked, placing our lives, ship and cargo in imminent peril for their safety. We now, therefore, do most seriously and solemnly assert, that for the future preservation of the ship, and thereby our lives and cargo, the said boilers, furnaces and chimneys are unsafe on the decks, and for the safety of the whole should be thrown overboard as soon as possible, the weather and sea permitting. In testimony whereof to the above, we hereby subscribe our respective names. TABLE OF CASES PAGE Aguan, 48 Fed. 320 53 Albany, The, 44 Fed. 431 46, 188, 206 Albert Dumois, 177 U. S. 240 151 Albina Ferry Co. _v._ Imperial and S. G. Reed, 38 Fed. 614 167 Allanwilde Transport Corp. _v._ Vacuum Co., 248 U. S. 377 90 Ambrose Light, 25 Fed. 408 199 Amelie, 6 Wall. (U. S.) 18 20, 50 America. _See_ Eads _v._ Brazelton, 22 Ark. 499 208 America. _See_ Gracie _v._ Palmer, 8 Wheat. (U. S.) 605 95 American Sugar Refining Co. _v._ Maddock, 93 Fed. 980 42 Ancaios, 170 Fed. 106 53 Anderson _v._ Munson, 104 Fed. 913 102 Arcturus, 17 Fed. 95 44 Atlantic, 53 Fed. 607 41, 129 Atlas, 3 Otto (U. S.) 302 152 Atlee _v._ Union Packet Co., 21 Wall. (U. S.) 389 148, 215 Attorney General's Opinion, 29 Op. 188 27 Aurora, 1 Wheat. (U. S.) 96 50, 140 Australasian Steam Navigation Co. _v._ Morse, L. R. 4 P. S. 222, 1 Aspin. 407, 27 LT. Rep. N. S. 357, 8 Moore P. C. N. S. 482, 20 Weekly Rep. 728, 17 Eng. Reprint 393 47 Barker _v._ The Swallow, 44 Fed. 771 73 Barnard _v._ Adams, 10 How. (U. S.) 270 189 Barnstable, 181 U. S. 464 33, 104 Behrens _v._ Furnessia, 35 Fed. 798 82 Belden _v._ Chase, 150 U. S. 674 150 Belfast, 7 Wall. (U. S.) 624 4 Belgenland, 114 U. S. 355 158 Benefactor, 103 U. S. 247 124 Blake, 107 U. S. 418 147 Bold Buccleugh, The, 7 Moore P. C. 267 130 Boskenna Bay, 36 Fed. 697 110 Boston, The, Blatch & H. 309 40 Bowring _v._ Thebaud, 56 Fed. 520 87 Boyce _v._ Bayliffe, 1 Campbell 58 80 Brewster, 95 Fed. 1000 49 Bristol, 29 Fed. 867 126 Brown _v._ Lull, 2 Sumner 559 54 Bulkley _v._ Insurance Co., Fed. Cas. No. 2, 118 89 Burlington, 73 Fed. 258 188 Burrill, 65 Fed. 104 111 Burt. _See_ Murphy _v._ Dunham, 38 Fed. 503 188, 202, 206 Calderon _v._ Atlas Steamship Co., 170 U. S. 272, 42 L. ed. 1033 100 Caledonia, 157 U. S. 124 70 Calypso, 230 Fed. 962 41 Carib Prince, 170 U. S. 655 121 Catalonia, 236 Fed. 554 68 Cayuga, 16 Wall. (U. S.) 177 168 Centurion, 57 Fed. 412 110 Cervantes, 135 Fed. 573 31 Chamberlain _v._ Chandler, 3 Mason 242 80 Chamberlain _v._ Ward, 21 How. (U. S.) 548 31 Charlotte, The, 3 W. Rob. Adm. 68 184 Chicago, 235 Fed. 538 68 China, The, 7 Wall. (U. S.) 53 126, 174, 178 Citizen. _See_ Quickstep, 9 Wall. (U. S.) 665 163 City of Norwich, 118 U. S. 468 123, 124 City of Panama, 101 U. S. 453 82 Civilta and Restless, 13 Otto 699 167, 169 Clara Clarita, 23 Wall. (U. S.) 1 166, 169 Clark _v._ Burns, 118 Mass. 275 79 Clifton, The, 3 Hagg. Adm. 14, 48 180 Compania de Navigacion La Flecha _v._ Brauer, 168 U. S. 104 93 Company _v._ Dexter, 52 Fed. 152 41 Constable _v._ National Steamship Co., 154 U. S. 51 76, 90 Cope _v._ Drydock Co., 119 U. S. 625 180 Craig _v._ Insurance Co., 141 U. S. 638 204 Crapo _v._ Kelly, 16 Wall. 610 15 Crossman _v._ Burrill, 179 U. S. 100 110 Dallemagne _v._ Moison, 197 U. S. 169 68 Dan, 40 Fed. 691 85 Daniel Kane, The, 35 Fed. 785 26 Davidson _v._ Baldwin, 79 Fed. 95 36 Davies _v._ Mann, 10 M. & W. 546 217 Delaware Ins. Co. _v._ Gossler, 6 Otto (U. S.) 645 140 Dempster Shipping Co. _v._ Pouppirt, 125 Fed. 732 82 Dene, 103 Fed. 983 111 DeSmet, The, 10 Fed. 483 137 Dixie, 46 Fed. 403 111 Dixon _v._ Whitworth, 4 Asp. M. L. C. 138, 327 188 Dutton _v._ Strong, 1 Black 23 212, 215 Dyer. _See_ Scotland, 118 U. S. 507 123 Eads _v._ Brazelton, 22 Arkansas 499 208 Edgar F. Coney. _See_ Marie Palmer, 191 Fed. 79 161 Egypt. _See_ Constable _v._ National Steamship Co., 154 U. S. 51 76 Ellis Warley. _See_ North Star, 106 U. S. 17 156 Elton, 83 Fed. 519 45 Ely, 110 Fed. 563 111 Emily B. Souder, 15 Blatch. 185, Fed. Cas. No. 4, 458 184 Empire Shipbuilding Co., 221 Fed. 223 144 Endora, 190 U. S. 169 68 Erastina, 50 Fed. 126 160 Europa, 2 Eng. L. & E. 559 149 Fair American, 1 Peters Adm. 87, 4 Fed. Cas. No. 1874 184 Field Line _v._ South Atlantic Co., 201 Fed. 301 92 Fitzgerald, 212 Fed. 678 85 Fleming _v._ Fire Assoc., 147 Mich. 404 24 Fortuna. _See_ Barnstable, 181 U. S. 464 104 Frances. _See_ Delaware Ins. Co. _v._ Gossler, 6 Otto (U. S.) 645 140 Francis, 21 Fed. 715 110 Freeman, 18 How. (U. S.) 182 34, 42, 92 Future City, 184 U. S. 247 216 Gardner _v._ Gold coins, 111 Fed. 552 187 Garland, The, 16 Fed. 283 18, 135 General Cass, 1 Brown Adm. 334 2 Germania Ins. Co. _v._ Lady Pike, 21 Wall. (U. S.) 1 72 Gillespie _v._ Winberg, 4 Daly (N. Y.) 318 38 Goddard, T. A., 12 Fed. 174 104 Gould _v._ Jacobson, 58 Mich. 288 18 Gracie _v._ Palmer, 8 Wheat. (U. S.) 605 95 Grant _v._ Norway, 10 C. B. 665 42 Grant _v._ Poillon, 20 How. (U. S.) 162 4 Grapeshot, 9 Wall. (U. S.) 129 139, 147 Gratitudine, The, 3 C. Rob. Adm. 240 189 Great Eastern, 24 Fed. Cas. 14, 110 183 Guildhall, 58 Fed. 796 93 Hagar _v._ Clark, 78 N. Y. 45 91 Hales. _See_ Niagara, 77 Fed. 329 153 Hamilton, The, 207 U. S. 398 15 Harlem, 27 Fed. 236 85 Hattie Thomas, 29 Fed. 297 41 Hattie P., 63 Fed. 1015 85 Hector. _See_ Sturgis _v._ Boyer, 24 How. (U. S.) 110 170 Hercules, 28 Fed. 475 213 Herman _v._ Mill, 69 Fed. 646 126 Hobart _et al_ _v._ Drogan, 10 Peters (U. S.) 108 184 Holmes, 1 Wall. Jr. 1, 26 Fed. Cas. No. 15, 383 194 Hopkins _v._ Forsyth, 14 Pa. St. 38 27 Hornet, The. _See_ Lawrence _v._ Minturn, 17 How. (U. S.) 100 74, 189 Hostetter _v._ Park, 137 U. S. 30 88 Hough _v._ Western Transportation Co., 3 Wall. (U. S.) 20 4, 32, 126 Hunter _v._ Prinsep, 10 East 378 77 Huus _v._ Co., 182 U. S. 392, 395 12, 24 Imberhorne, 240 Fed. 830 68 Indrapura, 171 Fed. 929 88 Insurance Co. _v._ Dunham, 11 Wall. (U. S.) 1 4 Intrepid. _See_ Liverpool &c. Navigation Co. _v._ Brooklyn Eastern Dist. Terminal, U. S. Supreme Court Advance Sheets, 85 170 Ixion, 237 Fed. 142 68 Jackson _v._ Union Marine Insurance Co., L. R. 10 C. P. 125 107 Jefferson, The, 215 U. S. 130 181, 188 Jenkins, S. S. Co. _v._ Preston, 186 Fed. 108 53 J. C. Pfluger, 109 Fed. 93 184 J. E. Rumbell, 148 U. S. 1 142, 147 John Buddle, 5 Notes of Cas. 387 151 John G. Stevens, 170 U. S. 113 129, 137 John Jay, 17 How. (U. S.) 399 24 Joseph B. Thomas, 86 Fed. 658 58 Kate, 164 U. S. 458 133 Kate Aitken. _See_ Wilson _v._ Charlestown Pilots' Association, 57 Fed. 227 175 Kensington, 183 U. S. 263 85 Kentucky. _See_ The China, 7 Wall. (U. S.) 53 178 Keokuk, The, &c. _v._ Home Ins. Co., 9 Wall. (U. S.) 526 72 Knickerbocker Ice Co. _v._ Stewart, 253 U. S. 149 57 La Bourgogne, 210 U. S. 95 124 Larch, 2 Curt. 434 27 Larsen, _Ex parte_, 233 Fed. 708 60 Lawrence _v._ Minturn, 17 How. (U. S.) 100 46, 74 Leamington, 86 Fed. 675 182 Lehigh Valley R. R. Co. _v._ Cornell Steamboat Co., 218 U. S. 264 155 Liverpool &c. Navigation Co. _v._ Brooklyn Eastern Dist. Terminal, U. S. Supreme Court Advance Sheets, 85 112, 114, 170 Lizzie Burrill, 115 Fed. 1015 42 Lombard S. S. Co. _v._ Anderson, 134 Fed. 568 53 Lottawanna, 21 Wall. (U. S.) 558 137 Luckenbach _v._ McCahan Sugar Ref. Co., 248 U. S. 139 118 McConochie _v._ Kerr, D. C. 9 Fed. 50 184 McLean _v._ Fleming, L. R. 2 H. L. Sc. 128 (English cases) 42 Mac, 7 P. D. 126 3 Majestic, 166 U. S. 375 79 Majestic, 56 Fed. 244 85, 110 Malek Adhel, 2 How. (U. S.) 210 112, 195 Manitoba, 104 Fed. 145 85 Marcadier _v._ Ins. Co., 8 Cranch (U. S.) 39 199 Margharita, 140 Fed. 820 59 Marie Palmer, 191 Fed. 79 161, 165, 166 Marjorie, The, 151 Fed. 183 127, 128 Mary, The, 1 Sprague 19 189 Max Morris, The, 137 U. S. 1 58 Mencke _v._ Sugar, 187 U. S. 248 111 Minnetonka, 146 Fed. 509 79 Mitchell _v._ Chambers, 43 Mich. 150 38 Mohawk, The, 3 Wall. (U. S.) 566 12 Moore _v._ Sun Printing &c. Association, 183 U. S. 642 109 Morgan _v._ Parham, 16 Wall. (U. S.) 471 12 Morning Light, 2 Wall. (U. S.) 550 148 Mosher, 17 Fed. Cas. No. 9874 164 Murphy _v._ Dunham, 38 Fed. 503 188, 202, 206 Mystic, 30 Fed. 73 160 Nebraska, The, 75 Fed. 598 40, 53 Neilson _et al_ _v._ Rhine Shipping Co., 248 U. S. 205 65 New World _v._ King, 16 How. (U. S.) 469 176 Niagara, The, 21 How. (U. S.) 7 39, 40, 45, 53 Niagara, 77 Fed. 329 153 Nicaragua. _See_ Mosher, 17 Fed. Cas. No. 9874 164 Normannia, 62 Fed. 469 85 North Star, 106 U. S. 17 156 O'Brien _v._ Miller, 168 U. S. 287 124, 147 Ocean Spray, 4 Sawy. 105 62 Ole Olson, 20 Fed. 384 62 Onderdonk _v._ Smith, _et al_, 27 Fed. 874 210 Oregon, 158 U. S. 186 151 Orleans _v._ Phoebus, 11 Peters (U. S.) 175 28, 44 Osceola, 187 U. S. 190 68 Patapsco Ins. Co. _v._ Coulter, 3 Peters (U. S.) 222 199 Pendleton _v._ Benner Line, 246 U. S. 353 118, 124 Pfluger, J. C., 109 Fed. 93 184 Pickwick. _See_ Gould _v._ Jacobson, 58 Mich. 288 18 Ponce, 178 Fed. 76 53 Post _v._ Jones, 19 How. (U. S.) 150 47 Prendergast _v._ Compton, 8 C. & P. 454 80 Pulaski, 33 Fed. 383 129 Quickstep, 9 Wall. (U. S.) 655 163 Ragland _v._ Norfolk & Washington Steamboat Co., 163 Fed. 376 42 Railway Co. _v._ Myers, 80 Fed. 361 82 Ralli _v._ Troop, 157 U. S. 386 174, 191 Rebecca-Ware, Fed. Cas. No. 11,629 124 Relief. _See_ Wilson _v._ Charlestown Pilots' Association, 57 Fed. 227 175 Republic. _See_ Sturgis _v._ Boyer, 24 How. (U. S.) 110 170 Reward, 1 W. Rob. 174 185 Richardson _v._ Harmon, 222 U. S. 96 118, 124, 215 River Mersey, 48 Fed. 686 207 Robertson _v._ Baldwin, 165 U. S. 275 60, 68 Rock Island Bridge, 6 Wall. (U. S.) 213 129 Ronalds, 109 Fed. 905 111 Rosenthal, 57 Fed. 254 110 Ross _v._ McIntyre, 140 U. S. 453 68 Royal Sceptre, 187 Fed. 224 75, 115 Rumbell, J. E., 148 U. S. 1 142, 147 Rupert, 213 Fed. 263 53 St. Clair _v._ U. S. 154 U. S. 134 199 St. Jago de Cuba, 9 Wheat. (U. S.) 409 132 Sandberg _v._ McDonald, 248 U. S. 185 65 Sandringham, 10 Fed. 556 182, 187 Scotland, 118 U. S. 507 123 Scotland, 105 U. S. 24 124 Scotia, 14 Wall. (U. S.) 170 158 Seabrook _v._ Raft, 40 Fed. 596 3, 148 Shawnee, 45 Fed. 769 58 Sheehan _v._ Dalrymple, 19 Mich. 239 30 Sherlock _v._ Alling, 93 U. S. 99 33 Shooting Star. _See_ Wm. H. Webb, 14 Wall. (U. S.) 406 168 Skinner, 248 Fed. 818 188 Smith _v._ Burnett, 173 U. S. 430 211 South Coast S. S. Co. _v._ Rudnbach, 251 U. S. 519 133 Southern Pacific Co. _v._ Jensen, 244 U. S. 205 56 Southern Pacific Co. _v._ Ky. 222 U. S. 632 15 Southwark, 191 U. S. 1 122 Spedden, 184 Fed. 283 53 Spedden _v._ Koenig, 24 C. C. A. 189; 78 Fed. 504 37 Sprott, 70 Fed. 327 110 Stach Clark, 54 Fed. 533 201 Steamship Co. _v._ Schmidt, 241 U. S. 245 68 Strathearn, 239 Fed. 583 68 Strathearn S. S. Co. _v._ Dillon, 252 U. S. 348 65 Stratton _v._ Jarvis, 8 Peters (U. S.) 4 186 Sturgis _v._ Boyer, 24 How. (U. S.) 110 170, 179 Sumner _v._ Caswell, 20 Fed. 249 85 Sun Printing &c. Association _v._ Moore, 183 U. S. 642 109 Syracuse, 18 Fed. 828 161 Syracuse, The, 12 Wall. (U. S.) 167 168 Tabor _v._ U. S., 1 Story 1 14 T. A. Goddard, The, 12 Fed. 174 104 Tamplin Steamship Co. _v._ Anglo-Mexican Products Co., Ltd., 2 A. C. 397 108 Teutonia _v._ Erlanger, 248 U. S. 521 182 Tornado, 108 U. S. 342 78 Trans. Co. _v._ Wright, 13 Wall. (U. S.) 104 124 Transportation Co. _v._ La Compagnie Générale Transatlantique, 182 U. S. 406 178 Transportation Co. _v._ Pearsall, 90 Fed. 435 185 Trigg, 37 Fed. 708 53 Troop, 118 Fed. 769 59 Tucker _v._ Alexandroff, 183 U. S. 424, 438 5 United States _v._ Ansonia Co., 218 U. S. 452 11 United States _v._ Forester, Newb. Adm. 81 24 United States _v._ Willings, 4 Cranch. (U. S.) 48 23 Valencia, 165 U. S. 264 131 Vauban. _See_ Liverpool &c. Navigation Co. _v._ Brooklyn Eastern Dist. Terminal, U. S. Supreme Court Advance Sheets, 85 170 Vincent _v._ Company, 109 Minn. 456 215 Western States, 151 Fed. 929 80 White's Bank _v._ Smith, 7 Wall. (U. S.) 646 24 Wildcroft, 201 U. S. 378 85, 122 Wm. Bagaley, The, 5 Wall. (U. S.) 377 26, 28, 29 William Brown. _See_ Holmes, 1 Wall. Jr. 1, 26 Fed. Cas. No. 15,383 194 Wm. H. Webb, 14 Wall. (U. S.) 406 168, 179 Willings _v._ Blight, 2 Pet. Adm. 288, 30 Fed. Cas. No. 17,765 29 Wilson _v._ Charlestown Pilots' Association, 57 Fed. 227 175 Wisconsin. _See_ Sturgis _v._ Boyer, 24 How. (U. S.) 110 170, 179 Woodall _v._ Dempsey, 100 Fed. 613 37 Yankee Blade, 19 How. (U. S.) 82 127 Yarkand, 120 Fed. 887 53 INDEX (The references are to pages.) Abandonment, of cargo on disaster, 75 to creditors, 114 to insurers, 123 to underwriters, 113 of seamen, 197, 252 Accounting, compellable by part owners, 30 Acts of Congress: June 26, 1884 (23 St. at L.), 70, 116 August 19, 1890 (26 St. at L. 320), 63 September 4, 1890 (26 St. at L. 425), 158 February 13, 1893 (27 St. at L. 445), 70, 72 February 18, 1895 (28 St. at L. 667), 252 December 21, 1898 (30 St. at L. 755), 196, 249 March 3, 1899 (30 St. at L. 1151), 206, 209 April 22, 1908 (35 St. at L. 65), 57 March 4, 1909 (35 St. at L. 1088, 1142), 196 April 5, 1910 (36 St. at L. 291), 57 June 24, 1910 (36 St. at L. 629), 141, 200 August 1, 1912 (37 St. at L. 242), 187 August 24, 1912 (37 St. at L. 560), 229 August 18, 1914 (38 St. at L. 698), 229, 246 March 4, 1915 (38 St. at L. 1164), 56, 245, 247-252 September 7, 1916 (39 St. at L. 729), 231, 260, 261 June 7, 1918 (40 St. at L. 602), 258 February 9, 1920, 16, 219 March 30, 1920, 83, 84, 157, 250 June 5, 1920, 12, 17, 18, 19, 27, 64, 79, 128, 130, 131, 135, 141, 200, 214, 232, 238-240, 250, 261, 263-289 _See also_ Revised Statutes: Compiled Statutes, 1916; Bills of Lading Act; Harter Act; Loss of Life Act; Panama Canal Act; Merchant Marine Act; Ship Mortgage Act; Stand-by Act. Acts of God, 89 Adjuster, in general average, 191 Admiralty. For specific subjects, see particular titles Admiralty Courts. _See_ Courts Admiralty Law, sources, general, 1 in United States, 1 Admiralty remedies. _See_ Remedies Admiralty Rules, general, 14 Advances of wages (_see also_ Wages), 247, 248 Advances on bottomry, 141 Adventure. _See_ Frustration of adventure Affreightment, contract of, defined, 77, 78 reciprocal obligations of ship and cargo, 34, 35 _See also_ Contracts of affreightment Agency, of master, right to delegate, 49 for temporary owner or charterer, 33 Agent, managing, responsibility of owner for, 31 Alaska Railroad, under Merchant Marine Act, 277 Alaska, trade with, coastwise, 14 under Merchant Marine Act, 277 Aliens, defined, in Merchant Marine Act, 288 sales of Shipping Board vessels to, under Merchant Marine Act, 266, 267 American Bureau of Shipping, under Merchant Marine Act, 276 Anchorage, 215, 216 Anchors, included in sale, 23 Antitrust laws, marine insurance associations exempt from, under Merchant Marine Act, 278 Antwerp, York-Antwerp Rules, 7 Appurtenances, what included in sale, 23 Arbitration clause, not enforceable, 107 Arrest of passengers, 42 Arrival and discharge, 76 Arrived ship, 106 Arson, maritime, 196 Articles, shipping. _See_ Shipping articles Assaults, 196 on seamen, 61 Association, defined, in Merchant Marine Act, 278 Attorneys, employment by Shipping Board, under Merchant Marine Act, 265 Austrian vessels, sale of, under Merchant Marine Act, 266 Average. _See_ General average Bankruptcy, of shipbuilder during construction, 11 Bare boat charter, 101 Barges, inspection of, 255 whether ships, 3 Barratry, 199, 200, 252 Bathhouse, floating, a ship, 3 Berths, separate for seamen, 249 Bills of lading, Chapter VII, 86-111 holder's claim to goods, 76 liability of owner for cargo not received, 31 limitations on, 76 limitation of master's authority to bind owner, 41 limitation on master's right to issue, 45 not contracts of affreightment, when, 34 Bills of sale, not required for documentation, 236 recording, 237, 238 recording, under Merchant Marine Act, 278, 279 requirements, 236 Blockade, violation of, 195 Boats, included in sale, 23 Boilers, included in sale, 23 Bonds. _See_ Mortgages and bonds for release of ship, 220 for safe return, when compellable, 28, 29 Bottomry bond, defined, 138 nature and incidents of, 138-140 Bowsprit, included in sale, 23 Breach of charter, 106, 107 Breakage, exception of, 99 Breakdown clause, 102, 103 Builder's lien, 136 Bunkers, liability for, during temporary ownership, 33 Cables, included in sale, 23 Captain. _See_ Master Capture. _See_ Prize of war Cargo. _See_ Affreightment, contracts of; Lien, etc. damage to, in collision, 152, 156 deck, in general average, 191 discharge of (_see_ Arrival and discharge) injury to, personal liability of master, 41 loading and stowage of, 72-75 master's relation to, 44-47 not involved in forfeiture, when, 195 on wreck, owner's rights, 206 out and back, 91 reciprocal obligations of ship and cargo, 34, 35 shipper must disclose character, 72, 73 unlawful, annuls charter, 107 Cargo vessels, provision of Merchant Marine Act, 276 Carpenter, master. _See_ Master carpenter ship's, lien for wages, 62 Carpenter's certificate, 232 Carriage by sea, Chapter VI, 69-84 Carriers, common and private, defined, 69 liability of, 69, 70 Certificate. _See_ Carpenter's certificate, Surveyor's certificate, Inspection certificate Cesser clause, 103 Changes, in structure, to be reported, 16 Charter parties, Chapter VII, 86-111 effect on lien, 133 master must not alter, 45 notice to creditor, when avoids lien, 33 Charter rates, Emergency Act, repeal of, in Merchant Marine Act, 263, 264 Charterer, agent of, may create lien, under Merchant Marine Act, 285 liability, 113 liability as temporary owner, 33 may create lien on vessel, when, under Merchant Marine Act, 285 Chartering Executive Committee, 86 Chartering of vessels, authority of Shipping Board, under Merchant Marine Act, 267 Chronometer, included in sale, 23 Circuit Court of Appeals. _See_ Courts Citizens, who are, 25 defined in Merchant Marine Act, 288 Citizenship, of owner (_see also_ Corporations), 12, 13, 25, 27 of master, 25, 39 of pilots, 13 of watch officers, 13 Claim, notice of, 100 Classification of Shipping Board vessels under Merchant Marine Act, 276 Clearance. _See_ Entry and clearance Coastwise trade, Alaska, under Merchant Marine Act, 277 corporate owner, stock control, 28 forfeiture for violation, 195 insular possessions, executive control, under Merchant Marine Act, 274 investigation of ports, etc., by Shipping Board, under Merchant Marine Act, 268 Philippine Islands, not, under Merchant Marine Act, 274 provisions of Merchant Marine Act, 277 restrictions, 231, 232 vessels to engage in, 13, 277 via foreign port, under Merchant Marine Act, 277 voyages, wages on, 247 what is, 13, 14 Code, Federal Criminal, 196 Collector of Customs, duties with respect to recordation, under Merchant Marine Act, 279, 280 Collision, Chapter XI, 148-158 assistance in case of, 252 investigation of, 244 personal liability of master, 41 responsibility of pilot, 175 when a peril of the sea, 89 Commanding officer. _See_ Master Commerce, Department of, representation on American Bureau of Shipping, under Merchant Marine Act, 276 routes to be established by Shipping Board, under Merchant Marine Act, 267 Secretary of, authority to regulate recordation of mortgages, etc., under Merchant Marine Act, 286 may remit certain fines, under Merchant Marine Act, 276 Commissioner of Navigation (_see also_ Navigation), 259 Commissioners. _See_ Shipping commissioners Common carriers. _See_ Carriers Compass, included in sale, 23 Compensation, just, under Merchant Marine Act, Law. _See_ Workmen's Compensation Law, 264 Competition, Shipping Board to make rules, under Merchant Marine Act, 272 Compiled Statutes 1916: 4554, 63 7707, 25 7778, 7779, 143 7981, 173 7990-7994, 187 8020-8027, 115 8029-8035, 93 8036, 52 8204-8208, 173 8287-8297, 63 8300-8314, 63 8315-8337-A, 64 8343-8376, 66 9920, 206 10419-10444, 193 10445-10462, 193 10462-10469, 193 10470, 203 10470-10483, 193 Congress, Acts of. _See_ Acts of Congress, Revised Statutes Consignee, right to goods, 76 Construction loan, fund under Merchant Marine Act, 269 by Shipping Board, under Merchant Marine Act, 260 Construction, title by, 10 Contract, maritime, defined, 4 status of ship mortgages, 141, 142 shipbuilding, 10 not maritime, 11, 12 liens arising out of, 126 of master, liability of owner, 31 liability of temporary owner, 33 seaman's, 55 under Emergency Shipping legislation, validated by Merchant Marine Act, 263, 264 Contracts of affreightment, Chapter VII, 86-111 _See also_ Affreightment, contracts of Contribution, in collision cases, 155 Contributory negligence, none in admiralty, 156 Control of ownership, effect on registry, 12, 25 _See also_ Corporations Corporal punishment, forbidden, 56, 197, 252 Corporate owners, privity or knowledge of, 118 Corporation, as owner, citizenship and stock control of, 13, 25, 27, 28, 123 oath for documentation, 235 under Merchant Marine Act, 288, 289 Costs, in admiralty, 221 Courts, United States: Circuit Court of Appeals, jurisdiction, 2 district, jurisdiction, 2 extent of judicial power, 2 state courts, jurisdiction, 2 Supreme Court, U. S., jurisdiction, 2 Court of Claims, suits for just compensation under Merchant Marine Act 263, 264 Crew, majority owners may employ and discharge, 28 _See also_ Seamen Crimes at sea, Chapter XIV, 193-201 offenses of seamen, 251, 252 Criminal Code, Federal, 196 Cruelty to seamen, 60 Customs duties. _See_ Treaties Damage, caused by pilot, 175 division of, 155, 156 in collision cases, 151-157 in towage cases, 168-170 to goods, liability for, under charter, 104 Day, work, 248 Dead freight. _See_ Freight Deadweight tonnage. _See_ Register tonnage Death of seaman, 250 seaman's right of action under Merchant Marine Act, 287 Deck cargo, in general average, 191 Deck load, 73, 75 Deck officers, 245 Delay in voyage, 78 Delivery of ship, title by, 10 Demise of ship, when charter is, 33, 91, 101-113 where, liability for damaged goods, 104 Demurrage (_see also_ Freight and demurrage), 105, 106 defined, 77 lien for, 127 when recoverable, 78 Depreciation, on sale of Shipping Board vessels, under Merchant Marine Act, 266 Derelicts. _See_ Wrecks and derelicts Desertion, 55, 60, 251 Despatch money, 106 Destruction of vessel before completion, 11 Deviation, master's duty, 45, 51 warranty against, 88, 89 Diligence of lienor, rules of, 127, 128 Directors of corporations, powers of, 28 Disaster, master's duties on, 51 seaman's duties on, 58 Discharge (_See_ Arrival and discharge) of seamen, 60 Disobedience, 251 Displacement. _See_ Register tonnage Dissolution of charters, 107-110 District courts. _See_ Courts Division of damages. _See_ Damages Docks, German port facilities turned over to Shipping Board by Merchant Marine Act, 271 insurance of, under Merchant Marine Act, 269 investigation of, by Shipping Board, under Merchant Marine Act, 268 Documentation of vessels, procedure for, 232-235 _See also_ Registry Documents, surrender and reissue of, 236, 239 Domicile of owner, for registry, 14 _See also_ Citizenship, Nationality, Corporation Dredge, subject to admiralty jurisdiction, 2 Drydock, floating, not a ship, 3, 180, 181 insurance of, under Merchant Marine Act, 269 maritime lien for use of under Merchant Marine Act, 285 Duties, customs. _See_ Treaties Effects, seamen's, 66 Embezzlement, 197 Emergency Fleet Corporation, 261 provisions of Merchant Marine Act with reference to, 288 Emergency Legislation Rate Act repealed, 264 Shipping Act repealed, 263, 264 validation of agreements, 263 Enemy port facilities, turned over to Shipping Board under Merchant Marine Act, 270, 271 Engineer, when an officer, 246 Engines, included in sale, 23 Enrollment, defined, 12 form of, 231 when to be made, 12 Entry and clearance, 241 Equipment, managing owner to direct, 36 Exceptions in bills of lading, 99 Excess profits tax, proceeds of sale exempt, under Merchant Marine Act, 275 vessels exempt, under Merchant Marine Act, 275 Exchange, title by, 10 Executors, sales by, 18, 19 Explosives, 73 on passenger ships, offense, 197 False lights, 197 Fares, through, on American ships, under Merchant Marine Act, 277 Federal Compensation Act, 57 Federal Criminal Code, 196 Fees, navigation, 258 Fellow servant, master not, 250 Felony, defined, 193 Fighting ships, forbidden, 79 provision of Merchant Marine Act, 273 Finders, rights of, 207, 208 Fines, Secretary of Commerce may remit certain, under Merchant Marine Act, 276 Fire, 89, 90, 115, 116 Fire insurance on vessels purchased from Shipping Board, under Merchant Marine Act, 269 Firemen, hours of labor, 248 Flag, 229 transfer of, 17, 23 Floats, whether ships, 3 Flogging, abolished, 42, 59 Flotsam, 202 Fog, collision in, precautions against, 149, 150 Foreclosure of mortgages, 145-147 under Merchant Marine Act, 283 Forfeiture, 195 on sale to alien, 17 under Merchant Marine Act, priority of mortgage lien, 284 Forfeitures and punishments of seamen, 55, 56 Foreign built vessels (_see also_ Vessels, Registry, Coasting trade), may engage in coasting trade, when, under Merchant Marine Act, 274 Foreign laws, Shipping Board to make rules to meet, under Merchant Marine Act, 272 Foreign liens, 136 Foreign market prices to be considered in sale of Shipping Board vessels, under Merchant Marine Act, 266 Foreign ships, American-built recording of, 16 Foreign trade, regulations governing shipping in, under Merchant Marine Act, 272 Shipping Board to establish new routes, under Merchant Marine Act, 267 Foreign vessels, right to coast repealed by Merchant Marine Act, 277 Foreigners, sale of vessels to, provisions of Merchant Marine Act, 266, 267 Frauds, of temporary owner, when owner liable, 34 Freight, defined, 43, 77, 86 dead, 91 lien for, 78, 127 loss of in collision, 162 master's lien upon, 43 when earned, 91 Freight and demurrage, 77 Freight rates, export, on American vessels, under Merchant Marine Act, 277 import, under Merchant Marine Act, 277 investigation by Shipping Board, under Merchant Marine Act, 268 through reduced, restricted by Merchant Marine Act, 277 unfair, 79 War Emergency Act repealed, 264 Frustration of adventure, 107, 108 Fuel, lien for, 125 General average, 189-192 origins, 7 preferred maritime lien for, under Merchant Marine Act, 280, 283 German vessels, turned over to Shipping Board, 266 sale of authorized by Merchant Marine Act, 266, 267 Gift, title by, 10 Great Lakes Rules, 150 Guam, registry of vessels trading with, 12 Guardians, may be owners, 25 Harter Act, 70, 72, 119-122 public vessels entitled to benefit of, under Merchant Marine Act, 266, 267 Hawaii, foreign vessels may carry passengers from, to United States under permit, under Merchant Marine act, 274, 275 trade with coastwise, 14 Hawsers, length of, 254 Heat, exception of, 99 Home port, 233, 234 defined, 12 fixed by registry, 14, 15 limitation on manager's authority when vessel in, 37 maritime lien for supplies furnished in, under Merchant Marine Act, 285 persons authorized by Merchant Marine Act to create liens in, 285 Hospital accommodations for seamen, 250 Hours of labor at sea, 248 Houses, sale of, by Emergency Fleet Corporation, authorized by Merchant Marine Act, 270 Housing law repealed by Merchant Marine Act, 270 Husband, ship's, defined, 36 Import rates, provisions of Merchant Marine Act, 277 Income tax, vessels in foreign trade exempt from under Merchant Marine Act, 275 Individuality of ship. _See_ Personality, Vessel Injuries. _See_ personal injuries Passengers, Seamen Inspection, certificate of outstanding, 235 of vessels, 244, 255, 259 Insurance, charter provision for, 102 effect of limitation of liability on, 123 in collision cases, 157 Insurance, fire, on vessels purchased from Shipping Board under Merchant Marine Act, 269 Insurance, marine, associations exempt from antitrust laws by Merchant Marine Act, 278 purchaser of Shipping Board vessel to provide, 268 Shipping Board vessels, fund for, under Merchant Marine Act, 269 Insurance company, marine, defined in Merchant Marine Act, 278 Insurance of cargo, 75 Interest, on mortgages, 239 on preferred mortgages under Merchant Marine Act, 281 on purchase price of vessels under Merchant Marine Act, 266 Interlocutory sales, 221 International Rules, 150 Interstate Commerce Commission, 261 power over, through rate rule under Merchant Marine Act, 277 Intervenors, 221 Investments of Shipping Board, under Merchant Marine Act, 270 Jetsam, 202 Jettison, 190, 191 master's duty, 46 Joint rates, provisions of Merchant Marine Act, 277 Judicial power, extent of. _See_ Courts Jurisdiction, Admiralty. (_See also_ Courts), 218, 219 concurrent, over crimes, 197, 198 criminal, 193, 194 ships subject to, 2 ships under construction not subject to, 2, 11, 12 shipbuilding contracts not territoriality of vessels for subject of, 11, 12 purposes of, 15 waters subject to, 3, 4 wrecks subject to, 204 of foreclosure, under Merchant Marine Act, 283, 284 of injuries to seamen, 58 of offenses under Merchant Marine Act, 282 Jury trial, seaman's right to, under Merchant Marine Act, 287 Laches in enforcing lien, effect of, 134 LaFollette Seamen's Act. _See_ Seamen's Act Language of seamen, 246 Larceny, 196 Lay days, 105, 106 Leakage, exceptions of, 99 Liabilities and limitations, Chapter VIII, 112-124 Liability, limits of, 5 of carrier, duration of, 99 limitation of, by temporary owner, 33 of ship, when pilot in charge, 177, 178 Libel, 219, 220 License, form of, 231 master's, 39, 40 officers', 244 vessels, 12 Lien, maritime, Chapter IX, 125-137 for breach of charter, 107 for collision damage, 156, 157 for freight and charter hire, 103 for pilotage, 175 for salvage, 181, 182 for towage, 160 for wages, 55, 61, 63 not assignable, 248 of landowner, on wreck, 205 of managing owner, 37 of master, 44 of part owners, 30 of wharfinger, 214 divested on master's sale, 19 failure to disclose, offense, 200 master's power to create, 50 mortgages may create, when, 113 of bills of lading and contracts of affreightment, 34-36 right of mortgagee to discharge, 144, 145 Lien, mechanics, 136 Lien, under Ship Mortgage Act, discussed, 239, 240 provisions of Ship Mortgage Act, 278-286 _See also_ Ship Mortgage Act Life, loss of. _See_ Loss of life Lifeboat men, 246 Life-saving equipment on cargo vessels, provisions of Merchant Marine Act, 276 Ligan, 202 Lights, false, 197 Limitations. _See_ Liabilities and limitations Limitation of liability by temporary owner, 33 in collision cases, 157 proceedings, 222 in loss of life, 84 Limitation on prosecutions, 198 Loading and stowage, 72-75 Loans. _See_ Construction loan fund Log book, contents, 52 disciplinary facts to be entered, 42 requirements, 52 Logs. _See_ Raft Longshoremen, lien for wages (_see also_ Stevedore), 62 Loss of life, 157 Act of March 30, 1920, 83, 84, 157, 250 Loss of vessel before completion, effect on title, 11 Loss or damage to goods, liability for, under charter, 104 Machinery, included in sale, 23 Mails, to be carried in American vessels, under Merchant Marine Act, 275, 276 contract not to be sublet to foreigners, provision of Merchant Marine Act, 275 Postmaster General to make contracts, under Merchant Marine Act, 275 Maiming, 196 Majority interest, when controlling, 28 Managing agent, 36 Managing owner, authority, duties and rights, 36, 37 Manslaughter, 196 Marine insurance. _See_ Insurance Marine Insurance Associations, exempt from antitrust laws by Merchant Marine Act, 278 Marine Insurance Company, defined in Merchant Marine Act, 278 Marine railways, lien for use, provision of Merchant Marine Act, 285 Maritime Law, sources, 1 Maritime liens. _See_ Liens Married women, may be owners, 25 Master, Chapter IV, 39-53 agency for all parties in case of wreck, agency for owner under charter, 91 agency for temporary owner or charterer, 33 agent for underwriter, when, 113 authority to sign bills of lading, 36 bills of lading signed by, liability on, 91 cargo, duty to deliver, 76 citizenship of, 25 contracts of affreightment, effect of, 34-36 disciplinary powers, 40 duties in loading and stowage, 72 duty as to shipping articles, 243 duty to deliver cargo to consignees, 76 license of, 244 majority owners may employ and discharge, 28 name to be reported, 16 oath of, for documentation, 235 owner's authority over, 30 penalty for failure to exhibit documents under Merchant Marine Act, 282 pilot, relation to, 174 right to sue in collision cases, 157 sales by, 19-22 salvor, 185 seamen, power to punish, 61 shipping articles, duty as to, 243 wreck, agency for all persons in case of, 75 Master carpenter, certificate of, for registry, 14 Masts, included in sale, 23 Mate, license of, 244 not to punish seamen, 61 Mechanic's liens, 136 Medicines, 67 Merchant Marine Act (June 5, 1920)[35], discussed, 142-147 text of, 263, 289 Merchant vessels, annual list of, 258 Minority interest may compel majority to give bond, 28, 29 right to use ship, 29 Misdemeanors, 193 Mississippi Valley Rules, 159 Moorage. _See_ Wharfage and moorage Mortgage of cargo, master's rights, 47 Mortgagee, liability of, 113 Mortgages and bonds, Chapter X, 138-147 Mortgages, new to be given after admiralty sale, 18 of ship at sea, 22, 23 Mortgages, preferred, provisions of Ship Mortgage Act (§ 30 Merchant Marine Act), 278-286 discussed, 238 Mortgages, recording of, provisions of Ship Mortgage Act (§ 30 Merchant Marine Act), 279-282, 286 Motor boats, numbering of, 258 Murder, 196 Mutiny, 60, 197, 200, 201, 251 Name, change of, 16, 240 forfeiture for change of, 195 marking of, 233, 234 Nationality, of owner (_see also_ Corporations), 13, 25, 27 of master, 25 of officers and crew, 246, 247 of ship. _See_ Registry, and Flag who are nationals, 25 Naval service, vessels in exempt from Merchant Marine Act, 266 Navigation, Commissioner of, 259 to authorize change of name, 16 Navigation fees, 258 Navigation laws, how administered, 259 Negligence in collision, 148, 149 liability for, during temporary ownership, 33 of master, liability of owner for, 31, 32 liability of temporary owner for, 33 liability of pilot for, 175 liability of tug for, 165, 166 proof of, in collision cases, 158 in towage cases, 155, 156 Negotiability of bills of lading, 98, 99 Neutrality, violation of, offense, 197 Note. _See_ Promissory note Notice, lien independent of, 127 of admiralty sale by marshal, 18 of claim. _See_ Claim Number. _See_ Official number Offenses. _See_ Crimes at sea of seamen, 59 Officers, deck, 245 nationality, 247 qualifications, 244-247 Official number, 233, 234 Official tonnage, 233 Oilers, hours of labor, 248 Oléron, Rules, 7 laws, 173 Overloading, 73 Owner, domicile of, for registry, 14 duty of, to provide competent master, 39 liability of, 112, 113 oath of, for documentation, 235 privity or knowledge of, 116-118 remedies of, 220 single ship companies, 123 as salvor, 185 of wreck, liability of, 205 rights, of, 206 Owners and managers, Chapter III, 25-38 Ownership, control of, effect on registry. _See_ Corporations Ownership, record title not conclusive of, 36 temporary, rights and liabilities, 33 Panama Canal Act (August 24, 1912), 229 Panama Canal Zone, trade with not coastwise, 14 Panama Railroad, ships subject to suit, 219 Parole, sale by, 10, 20, 22, 23 Part owners, 25, 26 not partners generally, 25 suits between, 30 obligations of, 30 Particular average, 189 Partition, suit for, 30 Partners, part owners not, 25 may own vessel as partnership property, 25-27 Passengers, assault on, liability of owner, 31 carriage of, 79, 80 damage in collision, 154, 155 from Hawaii in foreign ships, under Merchant Marine Act, 275 limitation of, on cargo vessels under Merchant Marine Act, 276 loss of life, 83, 84 master's authority over, 41 personal injuries to, 81-83 not salvor, 183 seduction of, 252 to be notified of dangers under Merchant Marine Act, 276 Peril of the sea, exception of, 89 liability for, under charter, 104 Penalties and forfeitures, 195 Penalties under Ship Mortgage Act, 282 Personal injuries to passengers. _See_ Passengers Personal injuries, of seamen, 56-58, 287 Personality of ship, 5, 112, 114, 195 Philippine Islands, may make registry rules under Merchant Marine Act, 274 not coastwise under Merchant Marine Act, 274 whether coastwise, 14 Pilot, citizenship of, 13 licenses of, 244 master to remain in command, 43 when salvor, 184 Pilotage. _See_ Towage and pilotage, Chapter XII, 159-179 appendix on, 253, 254 extra, ordered by master, owner's liability, 31 liability of master for, 41 Piracy, 195-199 Place of trial, of offenses at sea, 194 Plundering, 197 Port captain, 36 Port facilities, effect of freight rates on, investigation by Shipping Board, under Merchant Marine Act, 268 Port of registration. _See_ Home port Porto Rico, trade with coastwise, 14 Possession, evidence of ownership, 25 lien independent of, 127 Preferred lien. _See_ Liens foreclosure of, under Ship Mortgage Act, 283 Preferred mortgages. _See_ Mortgages foreclosure of, 146, 147 incidents of, 141-143 transfer of, 145 Preferred mortgage vessels, 128-131 Prices, market, foreign, to be considered in sale of Shipping Board vessels, under Merchant Marine Act, 266 Princes, restraint of. _See_ Restraint of princes Priorities in liens. (_see also_ Liens), 129-131 "Privity or knowledge," 116, 117 Prizes of war, when entitled to registry, 12 Process, 220-222 Proctor, 220 Promissory note, master's not binding on owner, 41 Protest, cost of, 152 described, 52 form of, 290 shipper entitled to copy, 76 Provisions, lien for, 125 scale of, 249 when included in sale, 23 Punishment, corporal, 197 of seamen (_see also_ Seamen), 55, 56 Purchase, title by, 10 Radio telegraph, failure to carry (_see also_ Wireless), 200 Raft, whether a vessel, 2 Railroads, freight rates, investigation by Shipping Board under Merchant Marine Act, 268 reduced, restriction upon under Merchant Marine Act, 277 Rape, 196 Rates. _See_ Freight export, on American vessels under Merchant Marine Act, 277 freight and charter, War Emergency Act repealed, 264 freight, unfair, 79 import, provisions of Merchant Marine Act, 277 Readiness, 106 Receiver, in preferred lien foreclosures under Merchant Marine Act, 283 Record title, not conclusive of ownership, 36 Recording, American-built foreign ships, 16 liens. _See_ Liens mortgages (_see also_ Mortgages), 144 Redelivery of vessel under charter, 102 Redocumentation, 241 Register, form of, 231 Register tonnage, 256 Registration and regulation in general, 10 Registry, general, 228, 229 and flag, 229 change of, to foreign, approval of Shipping Board, 17, 27 coastwise trade, vessels entitled to engage in, 13 control, American, of corporate owners, 13 copy to be included in bill of sale, 17 corporate ownership, American control, 13 defined, 12 domicile of owner, 14 ownership by citizens, 13 procedure (_see also_ Documentation), 14 surrender, on sale of ship at sea, 23 vessels entitled to, 12, 229-231 Regulations, navigation, 150 Remedies, Admiralty, Chapter XVII, 218-222 Repairs, liability for, during temporary ownership, 33 lien for, 125, 131 in home port, under Merchant Marine Act, 285 majority owners may pledge vessel for, 28 managing owner to make, 36 to wrecked vessel, to entitle her to registry, 12 Replevin, of wreck, 206 Representations prior to sale, 23, 24 Requisition, of vessels under Merchant Marine Act, 270 War Emergency Act repealed, 264 Residence of owner, for registry (_see also_ Citizenship, Corporations, Nationality), 14 Respondentia, defined, 138 incidents of, 140, 141 Restraint of princes, 90, 108, 109 Revised Statutes, Sections: 4139, 39, 40 4141, 12 4142, 4147-4153, 4155, 14 4170, 10, 17 4180-4184, 16 4282, 70, 89, 90 4283, 70 4284, 115 4285, 70, 115 4286, 70, 113, 115 4287, 4288, 4289, 70 4319, 14 4439, 40 4445, 40 4450, 40 4501-4612 (Title LIII), 56 4511, 55 4528, 55 4564, 41 4569, 41 4581, 56 4596, 56 4612, 54 5363, 41 Revolt, 197 River steamers, registry of, 13 Road. _See_ Rules of road Robbery, 196, 197 Rooles of Oléron. _See_ Oléron Routes, trade, Shipping Board may establish under Merchant Marine Act, 267 Rules, navigation, 150 Rules of Oléron. _See_ Oléron Rules of Rules of the road, 253 Safe port, 101 Sailor. _See_ Seamen Sails, included in sale, 23 Sale, bill of. _See_ Bills of sale Sale, in admiralty proceedings, 17, 18 effect on liens, 134, 135 notice, by marshal, 18 no warranty, 18 interlocutory, 221 Sale, in partition suit, 30 Sale, judicial, discharge of mortgage upon under Ship Mortgage Act, 279, 280 Sale of cargo, master's rights, 47 Sale of shipbuilding plants of Shipping Board, under Merchant Marine Act, 270 Sale of vessel, bill of, what to include, 17, 23 by master (_see also_ Master), 19-22, 50 by mortgagee, 19 by parole, 10, 20, 22, 23 by trustees and executors, 18, 19 to alien, 17 to alien, Shipping Board vessels under Merchant Marine Act, 226, 267 to alien, Shipping Board to approve under Merchant Marine Act, 284 to American citizens, under Merchant Marine Act, 266 of ship at sea, 22, 23 proceeds exempt from taxation, when under Merchant Marine Act, 275 representations prior to, 23, 24 Salvage and general average, Chapter XIII, 180-192 Salvage, seamen's lien not assignable, 248 Salvor, Lien, 181, 182 successive, 186 who may be, 183, 184 Seamen, Chapter V, 54-68 abandonment of, 252 age requirements, 246 berths, 249 clothing for, 250 corporal punishment of, prohibited, 252 death of, 250 death of, right of action under Merchant Marine Act, 287 foreign, when not engaged to work in United States, 15 hospital accommodations, 250 injuries to, 250 jury trial, right to, under Merchant Marine Act, 287 language of, 246 lien for salvage, not assignable, 248 lien for wages under Merchant Marine Act, 280 loss of effects in collision, 154-155 majority owners may employ and dismiss, 28 nationality of, 247 offenses of, 251 personal injuries to, under Merchant Marine Act, 287 provisions, scale of, 249 punishment of, authority of master, 42 qualifications, 246 salvors, whether, 183, 185 wages, demandable only once in same port under Merchant Marine Act, 286 liability of master, 41 liability of owner, 31 lien under Merchant Marine Act, 280 washing places, 249 Seamen's Act (March 4, 1915), 56, 245, 247, 249-251 Seaworthiness, generally defined, 70-72 liability for, etc., 70-72 owners' obligation for, 30, 31 defined, 31 test of, 31 penalty for want of, 67 proceeding to determine, on complaint of seamen, 66, 67 warranty of, 87, 88 Seduction, 196 of passenger, 252 Self-defense, by seamen, 61 Ship (_see also_ Vessel), personality of, 112, 114 what is, 180, 181 Ship Mortgage Act (June 5, 1920)[36], text of, 276-286 _See also_ Mortgages, Liens, etc. Shipbuilders Lien, 11 Shipbuilding contracts, 10 Shipbuilding plants of Shipping Board, insurance of, under Merchant Marine Act, 269 Shipping, American Bureau of under Merchant Marine Act, 276 Shipping Act (September 7, 1916), 231, 260, 261 Shipping Act, Emergency, repealed by Merchant Marine Act, 263 Shipping Articles, 55, 63, 64, 242-244 Shipping Board, 260, 261 appointment and duties under Merchant Marine Act, 264, 265 approval, for change of registry, 27 assignment of vessels under Merchant Marine Act, 267 charters to be filed with, 86 may delegate to Emergency Fleet Corporation, 288 mortgages, authority over, 145 sales to aliens, Board to approve, 17 ships immune from arrest, 219 to investigate fighting ships, 79 vessels sold to citizens, entitled to registry, 13 Shipping Commissioners, 63, 260 Ship's husband, defined, 36 Shore captain, 36 Single ship companies, 16, 123 Sleeping quarters, 249 Slop-chest, 7 Smuggling, 197 Stand-by Act (September 4, 1890), 158 State liens, 135 Statutes. _See_ Acts of Congress, Revised Statutes, Compiled Statutes Steam vessels, inspection of, 225 Steamboats, river and bay, when entitled to registry, 13 Stevedore, duties, 72 in whose employ, under charter, 105 lien for wages, 62 lien under Merchant Marine Act, 280, 283 master's control over, 45 Stolen goods, receiving, 196 Stowage. _See_ Loading and stowage Stranding, no general average, 190 not collision, 148 Subcharters, 101 Supervising Inspector General, 259 Supervising inspectors, rules, 150 Supplies, liability for, during temporary ownership, 33 lien for, 125, 131 lien for, provisions of Merchant Marine Act, 285 lien for, in home port, under Merchant Marine Act, 285 majority owners may pledge vessel for, 28 penalty for neglect to provide, 67 what to be provided, 67 when included in sale, 23 Supreme Court. _See_ Courts Survey, cost of, 152 Surveyor, marine, duties of, 66 Surveyor's certificates, 232, 233 Taxation of vessel, situs for, 15 Taxation, when proceeds of vessel exempt, under Merchant Marine Act, 275 Taxes. _See_ Excess Profits Tax, Income Tax, Tonnage Taxes Temporary ownership, rights and liabilities, 33 Territoriality of vessel, 14, 15, 193, 194 Theft, exception of, 99 Through export rates under Merchant Marine Act, 277 Through fares on American vessels under Merchant Marine Act, 277 Time charters, 101, 105 Title and transfer, Chapter II, 10-24 under Merchant Marine Act, 284, 289 Title, record, not conclusive of ownership, 36 Tonnage. _See_ Register tonnage official. _See_ Official tonnage Tonnage taxes, 257 Torts liability for, during temporary ownership, 33 liability of owner for master's or vessel's, 31-33 liability of ship for, 112 liens arising out of, 126 maritime, defined, 4 owner's, 31 vessel liable for, 33, 34 Tow, liability in tort, 112 Towage and pilotage, Chapter XII, 159-179 Towage, distinguished from salvage, 184 lien for, under Merchant Marine Act, 285 Trade routes, Shipping Board to establish under Merchant Marine Act, 267 Transfer. _See_ Title and transfer Treaties, restricting discriminating duties, to be terminated under Merchant Marine Act, 287 Trial, jury, seamen's right to, under Merchant Marine Act, 287 Trial of offenses, place of, 194 Trover, for wreck, 206 Trustees and executors, sales by, 18, 19 Trustees, may be owners, 25 Tug. _See_ Towage and pilotage liability in tort, 112 Tutuila, registry of vessels trading with, 12 Underwriters, liability of, 113 Unfair practices, Shipping Board to make rules to meet under Merchant Marine Act, 272 United States Compiled Statutes 1916. _See_ Compiled Statutes United States Revised Statutes. _See_ Revised Statutes United States Shipping Board. _See_ Shipping Board Unseaworthiness, penalty for, 195 Valuation in bill of lading, 99, 100 Vessel[37] (_see also_ Ship) defined, 2 destruction before completion, effect on title, 11 foreign, American-built, recording of, 16 foreign-built, not to trade coastwise, 13 exceptions, 13 loss before completion, effect on title, 11 may sue and be sued, 5 of United States, what is, 13 personality of, 5, 33, 34 sale of, Chapter II, 17-24 territoriality of, 14, 15 under construction, not subject to admiralty jurisdiction, 11, 12 when subject to admiralty jurisdiction, 2 Vessels, provisions of Merchant Marine Act definition, 288 mortgaged, transfers of, 284 requisition of, War Emergency Act, repealed, 264 Voyage charter, dissolution by accident, 107 Voyage, whether coastwise, how determined, 13, 14 Wages (_see also_ Seamen), 64, 247, 248 in collision cases, 152 liability of master, 41 liability of owner, 31 lien, seamen's, 55, 61-63 lien under Merchant Marine Act, 280 master's, 43 War, effect on charters, 107 Warranty, in sales, 23, 24 none in admiralty sale, 18 Washing places for seamen, 249 Watch and Watch, 248 Watch officers, nationality of, 246 must be citizens, 13 Watchman, lien for wages, 62 Water tenders, hours of labor, 248 Waters subject to admiralty Jurisdiction (_see also_ Jurisdiction), 3, 4 Wharfage and moorage, Chapter XVI, 209-217 Wharfinger's lien, 214 Wireless, penalty for failure to carry (_see also_ Radio telegraph), 195 Work day, 248 Workmen's compensation laws, as applied to seamen, 56, 57 Wreck, collision with, 148 master's duty to preserve, 51 not within admiralty jurisdiction, 2 rebuilt, registry of, 12 registry of, 230 Wreck or stranding, as affecting cargo, 51 Wrecks and derelicts, Chapter XV, 202-208 Writs, 220-222 Yachts, registry of, 13 York-Antwerp Rules, 7 Yukon River, traffic on, whether coastwise under Merchant Marine Act, 277 [35] The several subjects treated of in this act are indexed under their titles throughout this index, with page references to the text of the act. [36] The several subjects treated in this act are indexed under their titles throughout this Index, with page references to the text of the act. [37] For what is or is not a vessel, _see_ particular titles, such as Dredge, Raft, Drydock, etc. SHIPPING SERIES TRAINING FOR THE STEAMSHIP BUSINESS EDITORS: EMORY R. JOHNSON PH.D., SC.D. Dean of the Wharton School of Finance and Commerce, University of Pennsylvania. ROY S. MACELWEE, PH.D. Director of the U. S. Bureau of Foreign and Domestic Commerce. =1. Ocean Steamship Traffic Management.= BY G. G. HUEBNER, PH.D. Training in the responsibilities of the broker, the freight agent and other traffic agencies, and in the forms used in the shipping business. =2. Marine Insurance.= BY S. S. HUEBNER, PH.D. Training in the important responsibilities of the marine insurance agent and broker. =3. The Law of the Sea.= BY GEORGE L. CANFIELD, LL.B., AND GEORGE W. DALZELL. Legal relations, rights, duties, and obligations of shippers, steamship owners, operators, masters, and seamen; the legal relations of the ship from construction contract to sale as salvage. =4. Merchant Vessels.= BY ROBERT RIEGEL, PH.D. Their types, uses, tonnage, measurements, and construction; some things the steamship man ashore should know about ships. =5. Wharf Management and Stevedoring and Storage.= BY R. S. MACELWEE, PH.D., AND THOMAS R. TAYLOR, A.M. Duties of the pier superintendent, receiving clerks, tally men, and stevedore foreman. Includes wharf layout and construction, cargo-handling machinery, port charges and dues, stevedoring, longshoremen, labor problems, etc. =6. Steamship Operation.= (Projected.) 
40679	----	file was produced from images generously made available by the Posner Memorial Collection (http://posner.library.cmu.edu/Posner/)) Transcriber's Note: In text file only, superscripts (located in the Appendix) have been enclosed in curly brackets {}. Remaining transcriber's notes are at the end of the text. * * * * * HISTORY OF THE ORIGIN, FORMATION, AND ADOPTION OF THE CONSTITUTION OF THE UNITED STATES; WITH NOTICES OF ITS PRINCIPAL FRAMERS. BY GEORGE TICKNOR CURTIS. IN TWO VOLUMES. VOLUME II. NEW YORK: HARPER AND BROTHERS, FRANKLIN SQUARE. 1858. Entered according to Act of Congress, in the year 1858, by GEORGE T. CURTIS, in the Clerk's Office of the District Court of the District of Massachusetts. CONTENTS OF VOLUME SECOND. BOOK IV. FORMATION OF THE CONSTITUTION. CHAPTER I. PRELIMINARY CONSIDERATIONS.--ORGANIZATION OF THE CONVENTION.--POSITION OF THE STATES.--RULE OF INVESTIGATION. Page Explanation of the Author's Plan 3, 4 Preservation of Republican Government 5-7 Nature of American Freedom 7-9 Its Dependence upon the Union 9, 10 Intention of the Framers of the Constitution 11 Hamilton's Purposes 11 The Confederation officially condemned 11, 12 Purposes of the States 12 The declared Objects of the Convention 13 Nature of the previous Union 14, 15 General Purpose of the People 16 Powers of the Convention 17 Opposite Views of the Members 18 Presence of Slavery in the States 19, 20 The Slaves in some Form to be considered 20-22 How they were regarded under the Confederation 21 Complex Relations of the Subject 22 All the States but one represented in Convention 23 Absence of Rhode Island 24, 25 Application of the Minority of Rhode Island 25, 26 Position of the States in Convention 27, 28 Reserved Authority of the People 28, 29 Present Importance of the Process of forming the Constitution 29 Cautions to be used in Interpretation 30 CHAPTER II. CONSTRUCTION OF A LEGISLATIVE POWER.--BASIS OF REPRESENTATION AND RULE OF SUFFRAGE.--POWERS OF LEGISLATION. Randolph's Outline of a Constitution 32 Referred to Committee of the Whole 32 Idea of a National Government 32-35 Rule of Suffrage in the Legislature 35 First Parties in the Convention 36 Representatives in one Branch to be chosen by the People 37 Representation of the People 39-40 States in some way to be represented 40, 41 State Legislatures to choose the Members of the other Branch 41 Ratio of Representation as between the States 42-44 Basis of the Representative System 44-49 Rule of Suffrage in the Senate 48 Consequences of Numerical Representation 49, 50 Powers to be conferred on the Legislature 50 Control of State Legislation 51-55 Population of the States 55 CHAPTER III. CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY. Of how many Persons the Executive to consist 56 Negative to be given to the Executive 57 Mode of choosing the Executive 59 Purpose and Necessity of a Judiciary 60 To be made supreme 65 Its Jurisdiction 65 Tenure of the Judicial Office 67 Note on the Judicial Tenure 69 CHAPTER IV. ADMISSION OF NEW STATES.--GUARANTY OF REPUBLICAN GOVERNMENT.--POWER OF AMENDMENT.--OATH TO SUPPORT THE NEW SYSTEM.--RATIFICATION. The Union destined to be enlarged 75 Jefferson's Measure for the Admission of New States in 1784 76 Want of Power in the Confederation 77 Power to be supplied in the Constitution 78 Guaranty of State Governments to be provided 79 Necessity and Utility of the Guaranty 80-83 A Mode of Amendment to be provided 84 Oath to support the Constitution 84 Mode of Ratification 84-86 Report of the Committee of the Whole 86 CHAPTER V. ISSUE BETWEEN THE VIRGINIA AND THE NEW JERSEY PLANS.--HAMILTON'S PROPOSITIONS.--MADISON'S VIEW OF THE NEW JERSEY PLAN. General Character of the Virginia Plan 89 Difficulties and Obstacles in its Way 91 The chief Cause of Opposition 92 The counter Plan by the New Jersey Members 92 Referred to a Second Committee of the Whole 92 Argument of Patterson in its Support 93 Hamilton interposes 94 The Nature of the Issue pending 95 Hamilton's Leading Principles 95 He states the Courses open to the Convention 96 Explains the Principles on which Government must be founded 96-98 Objects to the New Jersey Plan 98, 99 Not satisfied with the Virginia Plan 99 His Views of what must be done 99, 100 Introduces his own Plan 101 It must be judged by the Issue pending 101-106 Madison examines the New Jersey Plan 106 Explains its Effect on the smaller States 107 Declares the Representation to be the great Difficulty 108 The States must be represented proportionally 109 The Virginia Plan again adhered to 109 Note on the Opinions of Hamilton 110 CHAPTER VI. CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS.--DIVISION OF THE LEGISLATURE INTO TWO CHAMBERS.--DISAGREEMENT OF THE STATES ON THE NATURE OF REPRESENTATION IN THE TWO BRANCHES.--THREATENED DISSOLUTION OF THE UNION. Different Magnitudes of the States 116 Inequalities in other Respects 117 The Majority and Minority of States 117, 118 Views of New York 118-121 Luther Martin's Opinions 121 Position of Connecticut 122 Nature of the Question between the Larger and the Smaller States 122-125 Advantages of a National System 127 Difficulties attending it 128 Dangers of adhering inflexibly to Theory 129 Division of the Legislature into Two Chambers 130 Origin of the Division in England 130, 131 Practical Advantages of the Separation 131, 132 Why resisted by the Minority 133 Defect in the Virginia Plan 133 Mode of electing the Members 134 Rule of Suffrage for the House 135 Madison's View of the Interest of the Small States 136 Hamilton on the Consequences of Dissolution 136, 137 Evil Results of a perfect Theory 137 Purpose of a Senate 138 Necessity for a distinct Basis 138-140 Irreconcilable Differences 140 Proposition of Compromise rejected 141 Disagreement on the Senate 141 Consequences of a Failure to form a Constitution 142-144 CHAPTER VII. FIRST GRAND COMPROMISES OF THE CONSTITUTION.--POPULATION OF THE STATES ADOPTED AS THE BASIS OF REPRESENTATION IN THE HOUSE.--RULE FOR COMPUTING THE SLAVES.--EQUALITY OF REPRESENTATION OF THE STATES ADOPTED FOR THE SENATE. Appointment of a Committee of Compromise 145 Representation adjusted by the Committee 146 Character of the Compromise 147 How treated in the Convention 147, 148 Apportionment of Representatives re-arranged 148, 149 Objections to the Plan 149, 150 Representation of the Slaves 150 Combined Rule of Numbers and Wealth 151 Test Question respecting the Slaves 153 Necessity for their Admission into the Basis of Representation 154-162 The Difficulties only to be adjusted by Compromise 162 Form of the Compromise 163, 164 Equality of Vote adopted for the Senate 165, 166 Value of this Feature of the Constitution 166, 167 Population of the Slaveholding and Non-slaveholding States compared 168 CHAPTER VIII. POWERS OF LEGISLATION.--CONSTITUTION AND CHOICE OF THE EXECUTIVE.--CONSTITUTION OF THE JUDICIARY.--ADMISSION OF NEW STATES.--COMPLETION OF THE ENGAGEMENTS OF CONGRESS.--GUARANTY OF REPUBLICAN CONSTITUTIONS.--OATH TO SUPPORT THE CONSTITUTION.--RATIFICATION.--NUMBER OF SENATORS.--QUALIFICATIONS FOR OFFICE.--SEAT OF GOVERNMENT. The General Interests of the Union to be provided for 170 Constitution, Laws, and Treaties to be Supreme 170 Appointment and Powers of the Executive 171 Re-eligibility of the Executive 172, 173 Tenure of the Office 173 Right of Suffrage in Choice of the Executive 174 Appointment by Electors 175 Construction of the Judiciary 176 Admission of New States 176 Completion of the Engagements of Congress 176 Guaranty of Republican Governments 177 Future Amendments 177 Oath to Support the Constitution 177 Ratification 177 Objects of a Popular Ratification 177-184 Constitution to be submitted to the Congress 185 Number of Senators 186 Qualifications for Office 186 Property Qualification 187 Seat of the National Government 189 General Pinckney's Notice respecting Slaves and Exports 189 Resolutions sent to Committee of Detail 190 CHAPTER IX. REPORT OF THE COMMITTEE OF DETAIL.--CONSTRUCTION OF THE LEGISLATURE.--TIME AND PLACE OF ITS MEETING. Power confided to the Committee of Detail 193 Their Draft of a Constitution 194 Right of Suffrage 194 Foreign-born Inhabitants 195-196 Immigration to be encouraged 197 Qualifications for Voting 198-202 Power of Naturalization 199 Qualifications for Office 203-210 Spirit of the Constitution 211 Ratio of Representation 212-214 Money Bills 215-222 Qualifications of Senators 223, 224 Number of Senators 224-226 Method of Voting in the Senate 226-228 Vacancies in the Senate and House 229 Powers of the Senate 229-240 Senatorial Term 240-242 Disqualifications of Members of both Branches 242 _et seq._ Parliamentary Corruption 242-244 Executive Influence 244-256 Time and Place for Elections 257 Pay of Members 258, 259 Impeachments 260-262 Quorum of each House 262 Separate Powers of each House 262-263 President of the Senate 263 Enactment of Laws 264 President's Negative 265-268 Seat of Government 268-277 Session of Congress 277, 278 CHAPTER X. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE POWERS OF CONGRESS.--THE GRAND COMPROMISES OF THE CONSTITUTION RESPECTING COMMERCE, EXPORTS, AND THE SLAVE-TRADE. General Principles of the Powers of Legislation 279, 280 Limitations 280 Exports and the Slave-Trade 281 Fitness and Unfitness of a Tax on Exports 282 Variety in the Exports of the United States 283 Impracticability of such a Tax 284 The Slave-Trade Controversy 285 _et seq._ How adjusted 289 _et seq._ Restrictions on the Revenue and Commercial Powers 289 Regulation of Commerce 291 _et seq._ Settlement of the Revenue and Commercial Powers 295 _et seq._ Proposition of Compromise 301 Arrangement of the Compromise 303 Value of the Compromise 307 Benefits of the Revenue and Commercial Powers 309 CHAPTER XI. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE REMAINING POWERS OF CONGRESS.--RESTRAINTS UPON CONGRESS AND UPON THE STATES. Purpose of the Revenue Power 318-322 Preference of Ports prohibited 323, 324 Duties, &c. to be equal 325 Commerce with the Indian Tribes 325-328 Uniform Rule of Naturalization 328 Coining and Regulating Value of Money 328 Standard of Weights and Measures 328 Post-Offices and Post-Roads 328 Power to borrow Money 328-330 Tribunals inferior to the Supreme Court 330 Rules as to Captures 330 Offences against the Law of Nations 331 Counterfeiting 332 War Power 332 Raising and supporting Armies 333 Navy 334 Power over the Militia 334-338 Necessary and proper Laws to execute the Specific Powers 338 Patents and Copyrights 339 Power over Territories 341-358 Admission of New States 358 Restraints upon Congress 359 Suspension of the _habeas corpus_ 359 Bills of Attainder 360 _Ex post facto_ Laws 360 _et seq._ Titles of Nobility 362 Gifts and Emoluments from foreign Princes 362 Restraints upon the States 362 _et seq._ Obligation of Contracts 365 State Imposts 369 Tonnage Duties 370 Other Restraints 371 CHAPTER XII. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--SUPREMACY OF THE NATIONAL GOVERNMENT.--DEFINITION AND PUNISHMENT OF TREASON. Principles of the National Supremacy 372 Preamble of the Constitution 373 Supremacy effected through the Judicial Power 374 Ratification 375 Meaning and Operation of the Supremacy 376-381 Its Effect on the Growth of the Country 381-384 Definition and Punishment of Treason 384-387 CHAPTER XIII. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--ELECTION AND POWERS OF THE PRESIDENT. Election of the President, why not made directly by the People 388 Origin of the Plan of Electors 389 Choice of President and Vice-President 390-395 Succession of the Vice-President to the Presidency 395-398 Mode of filling the Vacancy when there is no Vice-President 398 Mode of choosing the Electors 398, 399 Opening of the Votes of the Electors 399, 400 Modifications of the Mode of Election made by the Amendment 400, 401 Contingency, for which no Provision is made 401-403 Qualifications for the Presidency 404 Salary of the President 404-407 Question of a Cabinet, or a Council 407-409 Powers of the President 409 _et seq._ Executive Power 412, 413 Pardoning Power 413, 414 Treaty-making Power 414-417 Appointing Power 417, 418 To give Information on the State of the Union 419 Power to convene Congress 419 CHAPTER XIV. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--FORMATION OF THE JUDICIAL POWER. Scope of the Judicial Power 421-431 Its Purposes 431-445 CHAPTER XV. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--EFFECT OF RECORDS.--INTER-STATE PRIVILEGES.--FUGITIVES FROM JUSTICE AND FROM SERVICE. Intimacy of the Relations between the People of the States 447 Difference between the Confederation and the Constitution 447, 448 Privileges of Citizenship in all the States 448 Effect of Records 449 Fugitives from Justice 449, 450 Fugitives from Service 450-467 CHAPTER XVI. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--GUARANTY OF REPUBLICAN GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO SUPPORT THE CONSTITUTION.--MODE OF AMENDMENT.--RATIFICATION AND ESTABLISHMENT OF THE CONSTITUTION.--SIGNING BY THE MEMBERS OF THE CONVENTION. Purpose of the Guaranty of Republican Government 468 Meaning of the Guaranty 469 American Sense of a "Republican" Government 471 Amendment a Conservative Element 473 Distinction between Amendment and Revolution 473-474 Settlement of the Mode of Amending the Constitution 474-477 Restrictions on the Power of Amendment 477, 478 Oath to support the Constitution 478 Establishment of the Constitution provided for 479-485 Signatures of the Delegates 485-487 The Issue presented 487 BOOK V. ADOPTION OF THE CONSTITUTION. CHAPTER I. GENERAL RECEPTION OF THE CONSTITUTION.--HOPES OF A REUNION WITH GREAT BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING IN MASSACHUSETTS, NEW YORK, VIRGINIA, SOUTH CAROLINA, MARYLAND, AND NEW HAMPSHIRE.--APPOINTMENT OF THEIR CONVENTIONS. Public Anxiety 491 Rumors about the Bishop of Osnaburg 492 Scheme of the Tories 493, 494 Publication of the Constitution 495 Its Friends and Opponents 495, 496 Position of the People 497, 498 Reception of the Instrument in Congress 499 Action upon it 500 Reception in Massachusetts 501 Reception in New York 502-504 Reception in Virginia 505, 506 Jefferson's Opinion 506, 507 Course recommended by Jefferson 508 Washington's Exertions 509 Patrick Henry's Course in the Legislature 510 Debate in the Legislature of South Carolina 511 Action of the Legislature of Maryland 512 Luther Martin's Address 512-514 State of Opinion in New Hampshire 514 The real Crisis anticipated 515 Chances for the Constitution 516 Uncertainty of the Result 517 CHAPTER II. RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY, GEORGIA, AND CONNECTICUT, WITHOUT OBJECTION.--CLOSE OF THE YEAR 1787.--BEGINNING OF THE YEAR 1788.--RATIFICATION OF MASSACHUSETTS, THE SIXTH STATE, WITH PROPOSITIONS OF AMENDMENT.--RATIFICATION OF MARYLAND WITHOUT OBJECTION.--SOUTH CAROLINA, THE EIGHTH STATE, ADOPTS, AND ADOPTS, AND PROPOSES AMENDMENTS. Delaware ratifies unanimously 518 _Prestige_ of Philadelphia 519 James Wilson in the Convention of Pennsylvania 520 His Defence of the Constitution 521-524 Ratification of Pennsylvania 524 Position of New Jersey 524, 525 Ratifies the Constitution 526 Position of Georgia 526 Ratifies the Constitution 527 Convention of Connecticut 527, 528 Her Adoption 529 New Aspect of the Subject 529, 530 Convention of Massachusetts assembles 530 Nature of her Opposition 531 Value of her State Constitution 532 Parties in her Convention 532, 533 Samuel Adams and the Opposition 533, 534 The Federal Leaders 534 They recognize the Necessity for Amendments 535 Dangers of this Admission 535, 536 Hancock proposes the Amendments 537 Ratification procured by them 538 Conduct of the Minority 539 Nature of the Amendments 539, 540 The People of Boston rejoice 540 Influence of Massachusetts on New Hampshire 541 Critical Position of Maryland 542 Her Ratification 543 Rejoicings in Baltimore 543 Good News from South Carolina 544 Liberal Conduct of her People 544, 545 Defence of the Constitution by her Delegates 546 The Convention admits the Justice of the Commercial Power 547 Efforts of the Opposition 548 Charleston celebrates the Constitution 548 CHAPTER III. RATIFICATIONS OF NEW HAMPSHIRE, VIRGINIA, AND NEW YORK, WITH PROPOSED AMENDMENTS. New Hampshire, Virginia, and New York are to act in the same Month 549 Hamilton's Expresses arranged 550 Virginia Convention meets 551 Patrick Henry leads the Opposition 552 His peculiar Tendencies 553 Character of his Politics 554 Edmund Randolph's Position 555 Unexpectedly supports the Constitution 556 George Mason on the Power of Direct Taxation 557 Henry denounces the Constitution 558 Madison defends it 559 He denies the Dangers imputed to it 560 Henry vouches the Advice of Jefferson 561 Jefferson's Advice misconstrued 562 Henry persists in pressing his View of it 563 It strengthens the Opposition 564 They employ the Mississippi Question 565 True Aspect of that Question 566 Madison's Answer to the Opposition 567 Negotiations opened with the Anti-Federalists of New York and Pennsylvania 568 The Convention of New York assembles 568 Hamilton at the Intersection of his Expresses 569 His Critical and Responsible Position 569, 570 Nature of his Ambition 570, 571 His Opinion of the Purposes of the Opposition 571 His Answer to their Plans 572 He receives News of the Ratification by New Hampshire 573 Chancellor Livingston announces the Ratification of the Ninth State 574 The Opposition not subdued 574 Hamilton's Conduct at this Crisis 575-578 He despatches a Courier to Richmond 578 But the Constitution is ratified before the Courier arrives 578 How its Ratification was obtained 579-581 Henry's magnanimous Submission 581 The News from Virginia received at Philadelphia 582 Elaborate Procession in Honor of the Constitution 583 Hamilton receives the News from Virginia 584 He consults his Friends 585 They force the Opposition to an Issue 586 Hamilton advises with Madison 587 An Unconditional Ratification carried 588 The Federalists unite in a Call for a Second General Convention 588 Their Justification for so doing 589-592 The City of New York celebrates the Adoption of the Constitution 592 Honors paid to Hamilton by the People 592-595 CHAPTER IV. ACTION OF NORTH CAROLINA AND RHODE ISLAND.--CONCLUSION. Convention of North Carolina assembles 596 Refuses to ratify the Constitution 597 Elements of the Opposition in Rhode Island 598 Local Parties in the State 599 Town and Country divided 600 Spirit of a Majority of the People 600, 601 They reject the Constitution 602 Embarrassing Position of the Union 603 Conclusion 604 APPENDIX. Constitution of the United States of America 607 Articles in Addition to, and Amendment of, the Constitution of the United States of America 619 INDEX 633 BOOK IV. FORMATION OF THE CONSTITUTION. CHAPTER I. PRELIMINARY CONSIDERATIONS.--ORGANIZATION OF THE CONVENTION.--POSITION OF THE STATES.--RULE OF INVESTIGATION. After long wanderings through the struggles, the errors, and the disappointments of the earlier years of our constitutional history, I now come to consider that memorable assembly to which they ultimately led, in order to describe the character of an era that offered the promise of a more vigorous nationality, and presented the alternative of final dissolution. How the people of the United States were enabled to seize the happy choice of one of these results, and to escape the disasters of the other, is to be learned by examining the mode in which the Constitution of the United States was framed. In approaching this interesting topic, I am naturally anxious to place myself at once on a right understanding with the reader,--to apprise him of the purpose of the discussions to which he is invited, and to guard against expectations which might be entertained, but which will not be fulfilled. In a work designed for general and--as I venture to hope it may prove--for popular use, it would be out of place, as it certainly would be impracticable within the limits of a single volume, to undertake the explanation and discussion of all those particular questions of construction that must constantly arise under almost every clause and feature of such an instrument as the Constitution of the United States, and which, as our whole experience has taught us, are fruitful both of extensive debate and of wide as well as honest diversities of opinion. I shall consider questions of construction only so far as may be necessary to elucidate my subject; for I propose, in writing the history of the formation of the Constitution, to describe rather those great modifications in the principles and structure of the Union that took place in the period at which we have now arrived in the course of this work; to state the essential features of the new government; and to trace the process by which they were evolved from the elements to which the framers of that government resorted. Happily for us, the materials for such a description are ample. The whole civil change which transformed the character of our Union, and established for it a national government, took place peacefully and quietly, within a single twelvemonth. It was attended with circumstances which enable us to ascertain its character with a high degree of certainty. The leading purposes that were entertained and carried out were not left to the conjecture of posterity, but were recorded by deliberative assemblies, whose acts of themselves expressed and ascertained the objects and intentions of the national will. First framed by an assembly in which the States participating in the change were fully represented, and subsequently debated and ratified in conventions of the people in the separate States, the general nature and design of the Constitution may be traced and understood without serious difficulty. But to the right understanding of its nature and objects, a careful examination of the proceedings of the national Convention is, in the first place, essential. Before we enter, however, upon this examination, there are certain preliminary facts that explain the circumstances in which the Convention was assembled, and which will enable us to appreciate the results at which it arrived. To these, therefore, the reader is now desired to turn. First of all, then, it is to be remembered that the national Convention of 1787 was assembled with the great object of framing a system of government for the united interests of the thirteen States, by which the forms and spirit of republican liberty could be preserved. The warnings and teachings of the ten preceding years, which I have attempted to describe in a previous volume, had presented to the people of these States the serious question, whether their system of conducting their common affairs then rested upon principles that could secure their permanent prosperity and happiness. That the States had national interests; that each of them stood in relations to the others, and to the rest of the world, which its separate and unaided power was unable to manage with success; and that even its own internal peace and prosperity required some external protection,--had been brought home to the convictions of the people by an experience that commenced with the day on which they declared themselves independent, and had now forced upon them its last stern and sorrowful lesson in the general despondency of the national heart. As they turned anxiously and fearfully to the near and dear interests involved in their separate and internal concerns, they saw that self-government was a necessity of their existence. They saw that equality before the law for the whole people; the right and the power to appoint their own rulers; the right and the power to mould and form and modify every law and institution at their own sovereign will,--to lay restraints upon their own power, or not to lay them,--to limit themselves by public compact to a particular mode of action, or to remain free to choose other modes,--were the essential conditions of American society. In a word, they beheld that republican and constitutional liberty, which, with all that it comprehends and all that it bestows, was not only altogether lovely in their eyes, but without which there could be no peace, no social order, no tranquillity, and no safety for them and their posterity. This liberty they knew must be preserved. They loved it with passionate devotion. They had been trained for it by the whole course of their political and social history. They had fought for it through a long and exhausting war. Their habits of thought and action, their cherished principles, their hopes, their life as a people, were all bound up in it; and they knew that, if they suffered it to be lost, there would remain for them nothing but a heritage of shame, and ages of confusion, strife, and sorrow. Great as was their devotion to this republican liberty, and ardent as was their love of it, they did not value it too highly. The doctrine that all power resides originally in the people; that they are the source of all law; that their will is to be pronounced by a majority of their numbers, and can know no interruption,--was not first discovered in America. But to this principle of a democracy the people of the American States had added two real and important discoveries of their own. They had ascertained that their own power might be limited by compacts which would regulate and define the modes in which it shall be exercised. Their written constitutions had taken the place of the royal charters which formerly embraced the fundamental conditions of their political existence, but with this essential difference,--that whereas the charter emanated from a foreign sovereign to those who claimed no original authority for themselves, the constitution proceeded from the people, who claimed all authority to be resident in themselves alone. While the charter embraced a compact between the foreign sovereign and his subjects who lived under it, the constitution, framed by the people for their own guidance in exercising their sovereign power, became a compact between themselves and every one of their number. In this substitution of one supreme authority for another, some limitation of the mode in which the sovereign power was to act became the necessary consequence of the change; for as soon as the people had declared and established their own sovereignty, some declaration of the nature of that sovereignty, and some prescribed rules for its exercise, became immediately necessary, and that declaration and those rules became at once a limitation of power, extending to every citizen the protection of every principle involved in them, until the same authority which had established should change them. Against the evils, too, that might arise from the unrestricted control of a majority of the people over the fundamental law,--against the abuse of their power by frequent and passionate changes of the rules which limit its exercise for the time being,--they had discovered the possibility of limiting the mode in which the organic law itself was to be changed. By prescribing certain forms in which the change was to be made, and especially by requiring the fact, that a change had been decreed by those having a right to make it, to be clearly and carefully ascertained by a particular evidence, they guarded the fundamental law itself against usurpation and fraud, and greatly diminished the influences of haste, prejudice, and passion. Such was the nature of American republican liberty; not then fully understood, not then fully developed in all the States, but yet discovered,--a liberty more difficult of attainment, more elaborate in its structure, and therefore more needful of defence, than any of the other forms of constitutional freedom under which civilized man had hitherto been found. Now, the fate of republican liberty in America, at that day, depended directly upon the preservation of some union of the States, and not simply upon the existing State institutions, or upon the desires of the people of each separate State. It is true, that their previous training and history, and their own intelligent choice, had made the States, in all their forms and principles, republican governments; and almost all of them had, at this period, written constitutions, in which the American ideal of such governments was aimed at, and more or less nearly reached. But how long were these constitutions, these republican forms, to exist? What was to secure them? Who was to stand as their guarantor and protector, and to vindicate the right of the majority to govern and alter and modify? Who was to enforce the rules which the people of a State had prescribed for their own action, when threatened by an insurgent and powerful minority? Who was to protect them against foreign invasion or domestic violence? There was no common sovereign, or supreme arbiter, to whom they could all alike appeal. There was no power upon this broad continent to whom the States could intrust the duty of preserving their institutions inviolate, except the people of the United States in some united and sovereign capacity. No single State, however great its territory or its population, could have discharged these duties for itself by its unaided power; for no one of them could have repelled a foreign invasion alone, and the government of one of the most respectable and oldest of them, whose people had exhibited as much energy as any other community in America, had almost succumbed to the first internal disorder which it had been forced to encounter. The preservation of the Union of the States was, therefore, essential to the continuance of their independence, and to the continuance of republican constitutional liberty,--of that liberty which resides in law duly ascertained to be the authentic will of a majority. With this vastly important object before them, the people of the States of course could give to the Union no form that would not reflect the same spirit, and harmonize with the nature of their existing institutions. To have left their State governments resting upon the broad basis of popular freedom acting through republican forms, and to have framed, or to have attempted to frame, national institutions on any other model, would have been an act of political suicide. To enable the Union to preserve and uphold the authority of the people within the respective States, it must itself be founded on the same authority, must embody the same principles, spring from the same source, and act through similar institutions. Accordingly, the student of this portion of our history will find everywhere the clearest evidence that, so far as the purpose of forming a national government of a new character was entertained at the period when the Convention was assembled, a republican form for that government was a foregone conclusion. Not only did no State entertain any purpose but this, but no member of the Convention entered that body with any expectation of a different result. There is but one of the statesmen composing that assembly to whom a purpose of creating what has been called a monarchical government has ever been distinctly imputed; and with regard to him, as much as to every other person in the Convention, I shall show that the imputation is unjust. Hamilton,--for it is to him of course that I now allude,--together with many others, believed that a failure, at that crisis, to establish a government of sufficient energy to pervade the whole Union with the necessary control, would bring on at once a state of things that must end in military despotism. Hence his efforts to give to the republican form, which he acknowledged to be the only one suited to the circumstances and condition of the country, the highest degree of vigor, stability, and power that could be attained. Another very important fact, which the reader is to carry along with him into the examination of the proceedings of the Convention, is, that by the judgment of the old Congress, and of every State in the Union save one,[1] the Confederation had been declared defective and inadequate to the exigencies of government, and the preservation of the Union. That this declaration was expressly intended to embrace the principle of the Union, or looked to the substitution of a system of representative government, to which the people of the States should be the immediate parties, in the place of their State governments, does not appear from the proceedings which authorized and constituted the Convention. In substance, those proceedings ascertained that there were great defects in the existing Confederation; that there were important purposes of the federal Union which it had failed to secure; and that a Convention of all the States, for the purpose of revising and amending the Articles of Confederation, was the most probable means of establishing a firm general government, and was therefore to be held. But what were the original purposes of the Union, or what purposes had come to be regarded as essential to the public welfare, was not indicated in most of the acts constituting the Convention. Virginia, whose declaration preceded that of Congress and of the other States, and on whose recommendation they all acted, had made the commercial interests of the United States the leading object of the proposed assembly; but she had also declared the necessity of extending the revision of the federal system to all its defects, and had advised further concessions and provisions, in order to secure the great objects for which that system was originally instituted. These general and somewhat indefinite purposes were declared by the other States, without any material variation from the terms employed by Virginia.[2] Hence it is that the previous history of the Union becomes important to be examined before we can appreciate the great general purposes of its original formation, as they were understood at the time of these proceedings, or can appreciate the further purposes that were intended to be engrafted upon it. The declarations made by the Congress and the States seem obviously to embrace two classes of objects; the one is what, in the language of Virginia, they conceived to have been "the great objects for which the federal government was instituted"; the other is the "exigencies of the Union," for peace as well as for war, as they had been displayed and developed by the defects of the Confederation, and by its failures to secure the general welfare. The first of these classes of objects could be ascertained by reference to the terms and provisions of the Articles of Confederation; the second could only be ascertained by resorting to the history of the confederacy, and by regarding its recorded failures to promote the general prosperity as proofs of what the exigencies of the Union demanded in a general government.[3] In the first volume of this work we have examined the nature and operation of the previous Union, in both of its aspects, and we must carry the results of that examination along with us in studying the formation of the new system. We have seen the character of the Union which was formed by the assembling of the Revolutionary Congress, to enable the States to secure their independence of the crown of Great Britain. We have seen that, from the jealousies of the States, even this Congress never assumed the whole revolutionary authority which its situation and office would have entitled it to exercise. We have seen also, that, from the want of a properly defined system, and from the absence of all proper machinery of government, it was unable to keep an adequate army in the field, until, in a moment of extreme emergency, it conferred upon the Commander-in-chief the powers of a dictator. We have witnessed the establishment of the Confederation,--a government which bore within itself the seeds of its own destruction; for it relied entirely, for all the sinews of war, upon requisitions on the States, with which the States perpetually refused or neglected to comply. We have thus seen the war lingering and languishing until foreign aid could be procured, and until loans of foreign money supplied the means of keeping it alive long enough for the admirable courage, perseverance, and energy of Washington to bring it to a close, against all obstacles and all defects of the civil power. When the war was at length ended, and the duty of paying the debts thus incurred to the meritorious and generous foreign creditor, and the more than meritorious and generous domestic creditor, pressed upon the conscience of the country, we have seen that there was no power in the Union to command the means of paying even the interest on its obligations. We have seen that the treaty of peace could not be executed; that the Confederation could do nothing to secure the republican governments of the States; that the commerce of the country could not be protected against the policy of foreign governments, constantly watching for advantages which the clashing interests of the different States at all times held out to them; and that, with the rule which required the assent of nine States to every important measure, it was possible for the Congress to refuse or neglect to do what it was of the last importance to the people of the United States they should do. Finally, we have seen that what now kept the existing Union from dissolution, as it had been one immediate inducement to its formation, was the cession of the vast Northwestern territory to the United States; and that over this territory new States were forming, to take their places in the band of American republics, while the Confederation possessed no sufficient power to legislate for their condition, or to secure their progress toward the great ends of civil liberty and prosperity. A retrospection, therefore, of the previous history of the Confederacy, while it reveals to us the public appreciation of the national wants and the national failures, displays the general purposes contemplated by the States when they undertook effectually to provide for "the exigencies of the Union." But what the nature of the proposed changes was to be, and in what mode they were to be reached, was, as we have seen, left undetermined by the constituent States when they assembled the Convention; and we are now, therefore, brought to the third preliminary fact, necessary to be regarded in our future inquiries, namely, the condition of the actual powers of that assembly. The Confederation has already been described as a league, or federal alliance between independent and sovereign States, for certain purposes of mutual aid. So far as it could properly be called a government, it was a government for the States in their corporate capacities, with no power to reach individuals; so that, if its requirements were disregarded, compulsion could only be directed--if against anybody--against the delinquent member of the association, the State itself. At the time when the Convention was assembled, the general purpose entertained throughout the Union appears to have been, by a revision and amendment of the Articles of Confederation, to give to the Congress power over certain subjects, of which that instrument did not admit of its taking cognizance, and to add such provisions as would render its power efficient. But it was not at all understood by the country at large, that, while the nominal powers of the Confederation might be increased at the pleasure of the States, those powers could not be made effectual without a change in the principle of the government. Hence, the idea of abolishing the Confederation, and of erecting in its place a government of a totally different character, was not entertained by the States, or, if entertained at all, was not expressed in the public acts of the States by which the Convention was called. This idea, however, was perhaps not necessarily excluded by the terms employed by the States in the instruction of their delegates: and we may therefore expect to find the members of that assembly, in construing or defining the powers conferred upon it, taking a broader or narrower view of those powers, according to the character of their own minds, the nature of their previous public experience, and the real or supposed interests of their particular States. Many of the persons who had been clothed with this somewhat vague and indeterminate authority to "revise" the existing federal system, and to agree upon and propose such amendments and further provisions as might effectually provide for the "exigencies of the Union," were statesmen who had passed the active period of their previous lives in vain endeavors to secure efficient action for the powers possessed by the Congress, both under the revolutionary government and under the Confederation. They were selected by their States on account of this very experience, and in order that their counsels might be made available to the country.[4] They saw that the mere grant of further powers, or the mere consent that the Congress should have jurisdiction over certain new subjects, would be of no avail while the government continued to rest upon the vicious principle of a naked federal league, leaving the question constantly to recur, whether the compact was not virtually dissolved by the refusal of individual States to discharge their federal obligations. These persons, consequently, came to the Convention feeling strongly the necessity for a radical change in the principles and structure of the national Union; but feeling also great embarrassment as to the mode in which that change was to be effected. On the other hand, there were other members of the Convention who came with a disposition to adhere to the more literal meaning of their instructions, and who did not concur in the alleged necessity for a radical change of the principle of the government. Fearing that the power and consequence of their own States would be diminished by the introduction of numbers as a basis of representation, they adhered to the system of representation by States, and insisted that nothing was needed to cure the evils that pressed upon the country, but to enlarge the jurisdiction of the Congress under that system. They were naturally, therefore, the first to suggest and the last to surrender the objection, that the Convention had received no authority, either from the States or from the Congress, to do anything more than revise the Articles of Confederation, and recommend such further powers as might be engrafted upon the present system of the Union. That the construction of their powers by the latter class of the members of the Convention comported with the mere terms of the acts of the States, and with the general expectation, I have more than once intimated; but we shall see, as the experiment of framing the new system proceeded, that the views of the other class were equally correct; that the addition of further powers to the existing system of the Union would have left it as weak and inefficient as it had been before; and that what were universally regarded as the "exigencies of the Union"--which was but another name for the wants of the States--could only be provided for by the creation of a different basis for the government. Another fact which we are to remember is the presence, in five of the States represented in the Convention, of large numbers of a distinct race, held in the condition of slaves. Whatever mode of constituting a national system might be adopted, if it was to be a representative government, the existence of these persons must be recognized and provided for in some way. Whatever ratio of representation might be established,--whether the States were to be represented according to the numbers of their inhabitants, or according to their wealth,--this part of the population of the slave-holding States presented one of the great difficulties to be encountered. A change of their condition was not now, and never had been, one of the powers which those States proposed to confide to the Union. In no previous form of the confederacy had any State proposed to surrender its own control over the condition of persons within its limits, or its power to determine what persons should share in the political rights of that community; and no State that now took part in the new effort to amend the present system of the Union proposed to surrender this control over its own inhabitants, or sought to acquire any control over the condition of persons within any of the other States. The deliberations of the Convention were therefore begun with the necessary concession of the fact, that slavery existed in some of the States, and that the existence and continuance of that condition of large masses of its population was a matter exclusively belonging to the authority of each State in which they were found. Not only was this concession implied in the terms upon which the States had met for the revision of the national system, but the further concession of the right to have the slave populations included in the ratio of representation became equally unavoidable. They must be regarded either as persons or as chattels. If they were persons, and the basis of the new government was to be a representation of the inhabitants of the States according to their numbers,--the only mode of representation consistent with republican government,--their precise condition, their possession or want of political rights, could not affect the propriety of including them in some form in the census, unless the basis of the government should be composed exclusively of those inhabitants of the States who were acknowledged by the laws of the States as free. The large numbers of the slaves in some of the States would have made a government so constructed entirely unequal in its operation, and would have placed those States, if they had been willing to enter it,--as they never could have been,--in a position of inferiority which their wealth and importance would have rendered unjustifiable. On the other hand, if the wealth of the States was to be the measure of their representation in the new government, the slaves must be included in that wealth, or they must be treated simply as persons. The slaves might or might not be persons, in the view of the law, where they were found; but they were certainly in one sense property under that law, and as such they were a very important part of the wealth of the State. The Confederation had already been obliged to regard them, in considering a rule by which the States should contribute to the national expenses. They had found it to be just, that a State should be required to include its slaves among its population, in a certain ratio, when it was called upon to sustain the national burdens in proportion to its numbers; and they had recommended the adoption of this fundamental rule as an amendment of the federal Articles.[5] Either in one capacity, therefore, or in the other, or in both,--either as persons or as property, or as both,--the Union had already found it to be necessary to consider the slaves. In framing the new Union, it was equally necessary, as soon as the equality of representation by States should give place to a proportional and unequal representation, to regard these inhabitants in one or the other capacity, or in both capacities, or to leave the States in which they were found, and to which their position was a matter of grave importance, out of the Union. This difficulty should be rightly appreciated and fairly stated by the historian who attempts to describe its adjustment, and it should be carefully regarded by the reader. What reflections may arise upon the facts that we have to consider,--what should be the judgment of an enlightened benevolence upon the whole matter of slavery, as it was dealt with or affected by the Constitution of the United States,--may perhaps find an appropriate place in some future discussion. Here, however, the reader must approach the threshold of the subject with the expectation of finding it surrounded by many and complex relations. History should undoubtedly concern itself with the interests of man. But it is bound, as it makes up the record of events which involve the destinies and welfare of different races, to look at the aggregate of human happiness. It is not to rest, for its final conclusions, in seeming or in real inconsistencies; in real or apparent conflicts between opposite principles; or in the mere letter of those adjustments by which such conflicts have been avoided, or reconciled, or acknowledged. It is to arrive at results. It is to draw the wide deduction which will show whether human nature has lost or gained by the conditions and forms of national existence which it undertakes to describe. As the question should always be, in such inquiries, whether any different and better result was attainable under all the circumstances of the case,--a question to which a calm and dispassionate examination will generally find an answer,--the amount of positive good that has been gained for all, or of positive evil that has been averted from all, is the true justification of existing institutions. The Convention, when fully organized, embraced a representation from all the States, with the single exception of Rhode Island. Connecticut, which had steadily opposed the measure of a Convention,[6] came into it at a late period, and did not send a delegation until a fortnight after the time appointed for its session.[7] It had always been the inclination of that State to retain in her own hands the regulation of commerce; she had taxed imports from some of her neighbors, and this advantage, as it was considered, had made her reluctant to enlarge the powers of the Union. Her delegation appeared on the 28th of May. That of New Hampshire was not appointed until the latter part of June,[8] and did not appear until the 23d of July.[9] Rhode Island, small in territory and in numbers, but favorably situated for the pursuits of commerce, had strenuously resisted every effort to enlarge the powers of the Union. Ever since the Declaration of Independence, the people of that State had clung to the opportunity, afforded by their situation, of taxing the contiguous States, through their consumption of commodities brought into its numerous and convenient ports. For this object they had refused their assent to the revenue system of 1783; and as the failure of that system had prevented an exhibition of some of the benefits to be derived from uniform fiscal regulations, the local government of Rhode Island adhered, in 1786-7, to what they had always regarded as the true interest of their State. They did, it is true, appoint delegates to the commercial convention at Annapolis, but the persons appointed did not attend; and when the resolve which sanctioned the Convention of 1787 was adopted in Congress, Rhode Island was not represented in that body. When the recommendation of the Congress came before the legislature of the State, there appears to have been a strong party in favor of making an appointment of delegates to the Convention. The mercantile part of the population had come to entertain more liberal and far-seeing notions of their true interests; and the views of some of the more intelligent of the farmers and mechanics had been much modified. But by far the larger portion of the people--wedded to a system of paper money, which furnished almost their sole currency, and vaguely apprehending that a new government for the Union would destroy it, seeking the abolition of debts, public and private, and jealous of all influence from without--were in a condition to be ruled by their demagogues, rather than to be enlightened and aided by their statesmen. In May, the legislature rejected a proposition to appoint delegates to the Federal Convention; and in June, although the upper house, or Governor and Council, embraced the measure, it was again negatived in the House of Assembly by a large majority. The minority then formed an organization, which never lost sight of the national relations of the State, and which finally succeeded in bringing her into the Union under the new Constitution, in 1790. Immediately after the first rejection of the proposal to unite with the other States in reforming the Confederation, a body of commercial persons in Providence addressed a letter to the Convention, expressing the opinion that full power for the regulation of the commerce of the United States, both foreign and domestic, ought to be vested in the national council, and that effectual arrangements should also be made for giving operation to the existing powers of Congress in their requisitions for national purposes. Their object in this communication was to prevent an impression among the other States, unfavorable to the commercial interests of Rhode Island, from growing out of the circumstance of their being unrepresented in the Convention. Expressing the hope that the result of its deliberations would be to "strengthen the Union, promote the commerce, increase the power, and establish the credit of the United States," they pledged their influence and best exertions to secure the adoption of that result by the State of Rhode Island. The signers of this letter formed the nucleus of that party which afterwards fulfilled the pledge thus given to the Convention. The absence of Rhode Island did not occasion a serious embarrassment. The resolve of Congress recommending the Convention did not expressly require the presence of all the States; and the commissions given by each of the States which adopted the recommendation clearly implied that their delegates were to meet and act with the delegations of such other States as might see fit to be represented. The communication of the minority party in Rhode Island was received and read, and the interests of that State were attended to throughout the proceedings. We are now carefully to observe the position of the States when thus assembled in Convention. Their meeting was purely voluntary; they met as equals; and they were sovereign political communities, whom no power could rightfully coerce into a change of their condition, and with whom such a change must be the result of their own free and intelligent choice, governed by no other than the force of circumstances. That they were independent of foreign control was ascertained by the Declaration of Independence, by the war, and by the Treaty of Peace. That they were independent of each other, except so far as they had made certain mutual stipulations in the Articles of Confederation, was the necessary result of the events which had made the people of each State its rightful and exclusive sovereigns. We must recur, therefore, to the Articles of Confederation for the purpose of determining the nature of the position in which the States now stood. When the States, in 1781, entered into the confederacy then established, they reserved their freedom, sovereignty, and independence, and every jurisdiction, power, and right not expressly delegated to the United States. By the provisions of the federal compact, these separate and sovereign communities committed to a general council the management of certain interests common to them all; in that council they were represented equally, each State having one vote; but as neither the powers conferred upon that body, nor the restraints imposed by the States upon themselves, were to be enforced by any agreed sanctions, the parties to the compact were left to a voluntary performance of their stipulations. Still, there were certain powers which the States agreed should be exercised by the United States in Congress assembled, and certain duties towards the confederacy which they agreed to discharge; and therefore, so far as authority and jurisdiction had been conferred upon the United States, so far they had been surrendered by the States. The peculiarity of the case was, that the powers surrendered were ineffectual for the want of appropriate means of coercion. These powers the States did not propose to recall. The Union was unbroken, though feeble, and trembling on the verge of dissolution. The purpose of all was to strengthen and secure its powers, to add somewhat to their number, and to render the whole efficient and operative by providing some form of direct and compulsory authority. For this end, as members of an existing confederacy, in possession of all the powers not previously delegated to the Union, the States had assembled upon the same equality, and under the same form of representation, with which they had always acted in the Congress. As the States had conferred certain powers upon the Confederation, so it was equally competent to them to enlarge and add to those powers. They had formed State governments, and established written constitutions. But the people of the States, and not their governments, held the supreme, absolute, and uncontrollable power. They had created, and they could modify or destroy; they could withdraw the powers conferred upon one class of agents, and bestow them upon another class. What was wanted was the discovery of some mode of proceeding, which, by involving the consent of the State governments, would avoid the appearance and the reality of revolution, and make the contemplated changes consist with the American idea of constitutional action. Here also it seems proper to state the reasons why the process of framing the Constitution is so important as to demand a careful exhibition of the proceedings of those to whom this great undertaking was intrusted. The Convention had confessedly no power to enact or establish anything. It was a representative body, clothed with authority to agree upon a system of government to be recommended to the adoption of their constituents. The constituents were twelve of the thirteen States of the confederacy, each having an equal voice and vote in the proceedings; but neither the assent nor the dissent of a State, in the Convention, to the whole system, or to any part of it, bound the people of that State to receive or to reject it when it should come before them. Still, the results of the various determinations of a majority of the States in this body; the purposes of particular provisions which those results clearly disclose; the relations which they evince between the different parts of the system,--are all of the utmost importance in determining the sense in which the whole ultimately came before the enacting authority for approval or rejection. If, for example, a majority of the States came to a very early determination that the principle of the government should no longer be that of an exclusive representation of States, but should include a representation of the people of the different States in some fair and equitable ratio; if they adhered to this throughout their deliberations, and adjusted everything with reference to it; and if, when they finally provided for a mode of establishing the new system, they submitted it directly to the people of each State to declare whether they would be so represented,--it is manifest that these results of their action have much to do with the inquiry, What is the true nature of the present government of the United States? Every student of the proceedings and discussions in the national Convention should, however, be careful not to extend this principle of general interpretation to the views, opinions, or arguments expressed or employed by individuals in that assembly. The line of argument or illustration adopted by different members may be more or less important, as tending to explain the scope or purpose of a particular decision arrived at by a vote of the Convention; and occasionally, as will be seen in reference to the arrangements which were finally entered into as mutual concessions or compromises between different interests, the discussions will be found to be of great significance and importance. But it is, after all, to the results themselves, and to the principles involved in the various decisions of the Convention, as indicated by the votes taken, that we are to look for the landmarks that are to guide our inquiries into the fundamental changes, improvements, and additions proposed by the Convention to the country, and afterwards adopted by the people of the States. FOOTNOTES: [1] Rhode Island. [2] New Jersey specifically contemplated a regulation of commerce. See the proceedings of Congress, and those of the States, _ante_, Vol. I. pp. 361, 367, notes. [3] Thus, for example, the regulation of commerce was not one of the original purposes for which the Union was formed in 1775 or in 1781. But it became one of the exigencies of the Union, by becoming a national want, and by the revealed incompetency of most of the States to deal with the subject so as to promote their own welfare, or to avoid injury to their confederates. So of a great many other things, for which we must resort, as the framers of the Constitution resorted, to the history of the times. [4] See the preamble to the act of Virginia, _ante_, Vol. I. p. 367, note. [5] See the Resolve of Congress, passed April 18, 1783, proposing to amend the Articles of Confederation. This Resolve was the origin of the proportion of three fifths, in counting the slaves. See _post_, Chapter II. p. 48; _ante_, Vol. I. p. 213, note 2. [6] Madison, Elliot, V. 96. [7] Ibid. 124. [8] Elliot, I. 126. [9] Ibid. 351. CHAPTER II. CONSTRUCTION OF A LEGISLATIVE POWER.--BASIS OF REPRESENTATION, AND RULE OF SUFFRAGE.--POWERS OF LEGISLATION. The Convention having been organized, Governor Randolph of Virginia[10] submitted a series of resolutions, embracing the principal changes that ought to be proposed in the structure of the federal system. Mr. Charles Pinckney of South Carolina also submitted a plan of government, which, with Governor Randolph's resolutions, was referred to a committee of the whole. It is not necessary here to state the details of these several systems; for although that introduced by Randolph gave a direction to the deliberations of the committee, the results arrived at were in some respects materially different. The first distinct departure that was made from the principles of the Confederation was involved in one of the propositions brought forward by Governor Randolph, "that a NATIONAL government ought to be established, consisting of a supreme legislative, executive, and judiciary"; and as this proposition was affirmed in the committee by a vote of six States, it is important to understand the sense in which it was understood by them.[11] Most of the framers of the Constitution seem to have considered that a compact between sovereign States, which rested for its efficacy on the good faith of the parties, and had no other compulsory operation than a resort to arms against a delinquent member, was a "federal" government. This was the principle of the Confederation. At this early stage of their deliberations, the idea which was intended by those who favored a change of that principle, when they spoke of a "national" government, was one that would be a supreme power with respect to certain national objects committed to it, and that would have some kind of direct compulsory action upon individuals. This distinction was understood by all to be real and important. It led directly to the question of the powers of the Convention, and formed the early line of division between those who desired to adhere to the existing system, and those who aimed at a radical change. The former admitted the necessity for a more effective government, and supposed that the Confederation could be made so by distributing its powers into the three great departments of a legislative, executive, and judiciary; but they did not suggest any mode by which those powers could be made supreme over the authority of the separate States. The latter contended, that there could be no such thing as government unless it were a supreme power, and that there could be but one supreme power over the same subjects in the same community; that supreme power could not from the nature of things act on the States collectively, in the usual and peaceful mode in which the operations of government ought to be conducted, but that it must be able to reach individuals; and that, as the Confederation could not operate in this way, the distribution of its powers into distinct departments would be no improvement upon the present condition of things. But when the distinction between a national and a federal government had been so far developed, the subject was still left in a great degree vague and indeterminate. What was to mark this distinction as real, and give it practical effect? By what means was the government, which was now, as all admitted, a mere federal league between sovereign States, to become, in any just sense, national? The idea of a nation implies the existence of a people united in their political rights, and possessed of the same political interests. A national government must be one that exercises the political rights, and protects the political interests, of such a people. But, hitherto, the people of the United States had been divided into distinct sovereignties; and although by the Articles of Confederation some portion of the sovereign power of each of the separate States had been vested in a general government, that government had been found inefficient, and incapable of resisting the great power that had been reserved to the respective States, and was constantly exerted by them. The difficulty was, that the constituent parties to the federal union were themselves political governments and sovereigns; the people of the States had no direct representation, and no direct suffrage, in the general legislature; and as in a republican government the representation and the suffrage must determine its character, it became obvious that, in order to establish a national government that would embrace the political rights and interests of the people inhabiting the States, the basis of representation and the rule of suffrage must be changed. It being assumed that the new government was to be divided into the three departments of the legislative, executive, and judiciary, several questions at once presented themselves with regard to the constitution of the national legislature. Was it to consist of one or of two houses? and if the latter, what was to be the representation and the rule of suffrage in each? The resolutions of Governor Randolph raised the question as to the rule of suffrage, before the committee had determined on the division of the legislative power into two branches. One of his propositions was, "That the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases." This was no sooner propounded, than a difficulty was suggested by the deputies of the State of Delaware, which threatened to impede the whole action of the Convention. They declared that they felt restrained by their commissions from assenting to any change of the rule of suffrage, and announced their determination to retire from the Convention if such a change were adopted. The firmness and address of Madison and Gouverneur Morris surmounted this obstacle. They declared that the proposed change was absolutely essential to the formation of a national government; but they consented to postpone the question, having ascertained that it would finally be carried.[12] The committee thereupon immediately determined that the national legislature should consist of two branches,[13] and proceeded to consider the mode of representation and suffrage in both. As the discussions proceeded, the members became divided into two parties upon the general subject; the one was for a popular basis and a proportionate representation in both branches; the other was in favor of an equal representation by States in both. The first issue between them was made upon the House, or what was termed the first branch of the legislature. On the one side it was urged, that to give the election of this branch to the people of the States would make the new government too democratic; that the people were unsafe depositaries of such a power, not because they wanted virtue, but because they were liable to be misled; and that the State legislatures would be more likely to appoint suitable persons. On the other hand, it was admitted that an election of the more numerous branch of the national legislature by the people would introduce a true democratic principle into the government, and this, it was said, was necessary. It was urged that this branch of the legislature ought to know and sympathize with every part of the community, and ought therefore to be taken, not only from different parts of the republic, but also from different districts of the larger members of it. The broadest possible basis, it was said, ought to be given to the new system; and as that system was to be republican, a direct representation of the people was indispensable. To increase the weight of the State legislatures, by making them electors of the national legislature, would only perpetuate some of the worst evils of the Confederation. A decided majority of the States sustained the election of the first branch of the national legislature by the people.[14] Great efforts were, however, subsequently made to change this decision; and the discussion which ensued on a motion that this branch should be elected by the State legislatures, throws much light upon the nature of the government which the friends of an election by the people were aiming to establish. From that discussion it appears that the idea was already entertained of forming a government that should have a vigorous authority derived directly from the people of the States,--one that should possess both the force and the sense of the people at large. For the formation of such a government one of two courses was necessary: either to abolish the State governments altogether; or to leave them in existence, and to regard the people of each State as competent to withdraw from their local governments such portions of their political power as they might see fit to bestow upon a national government. The latter plan was undoubtedly a novelty in political science; for no system of government had yet been constructed in which the individual stood in the relation of subject to two distinct sovereignties, each possessed of a distinct sphere, and each supreme in its own sphere. But if the American doctrine were true, that all supreme power resides originally in the people, and that all governments are constituted by them as the agents and depositaries of that power, there could be no incompatibility in such a system. The people who had deposited with a State government the sovereign power of their community, could withdraw it at their pleasure; and as they could withdraw the whole, they could withdraw a part of it. If a part only were withdrawn, or rather, if the supreme power in relation to particular objects were to be taken from the State governments, and vested in another class of agents, leaving the authority of the former undiminished except as to those particular objects, the individual might owe a double allegiance, but there could be no confusion of his duties, provided the powers withdrawn and revested were clearly defined. The advocates of a national government, besides and beyond the intrusting of a particular jurisdiction to that government, wished to make it certain that its legislative power, in each act of legislation, should rest on the direct authority of the people. For this purpose they desired to avoid all agency of the State governments in the appointment of the members of the national legislature. They held this to be necessary for two reasons. In the first place, they said that in a national government the people must be represented; and that in a republican system the real constituent should act directly, and without any intermediate agency, in the appointment of the representative. In the second place, they deduced from the objects of a national government the necessity for excluding the agency of the State governments in the appointment of those who were to exercise its legislative power. Those objects, they contended, were not fully stated by their opponents. The latter generally regarded the objects of the Union as confined to defence against foreign danger and internal disorder; the power to make binding treaties with foreign countries; the regulation of commerce, and the power to derive revenues therefrom.[15] The former insisted that another great object must be, to provide more effectually for the security of private rights, and the steady dispensation of justice. Mr. Madison declared that republican liberty could not long exist under the abuses of it which had been practised in some of the States, where the uncontrollable power of a majority had enabled debtors to elude their creditors, the holders of one species of property to oppress the holders of another species, and where paper money had become a stupendous fraud. These evils had made it manifest that the power of the State governments, even in relation to some matters of internal legislation, must be to some extent restrained; and in order effectually to restrain it, the national government must, in the construction of its departments, as well as in its powers, be derived directly from the people.[16] These views again prevailed as to the first branch, and Mr. Pinckney's proposition for electing that branch by the State legislatures was negatived by a vote of three States in the affirmative, and eight in the negative.[17] But as soon as the impracticability of abolishing the State governments was seen and admitted,--and it was at once both seen and admitted by some of the strongest advocates for a national government,--it became apparent to a large part of the assembly, that to exclude those governments from all agency in the election of both branches of the national legislature would be inexpedient. It would obviously have been theoretically correct to have given the election of both the Senate and the House to the people of the States, especially when it was intended to adhere to the principle of a proportionate representation of the people of the States in both branches.[18] But the necessity for providing some means by which the States, as States, might defend themselves against encroachments of the national government, made it apparent that they must become, in the election, a constituent part of the system. No mode of doing this presented itself, except to give the State legislatures the appointment of the less numerous branch of the national legislature,--a provision which was finally adopted in the committee by the unanimous vote of the States.[19] The results thus reached had settled for the present the very important fact, that the people of the States were to be represented in both branches of the legislature; that for the one they were to elect their representatives directly, and for the other they were to be elected by the legislature of the State. But when it had been ascertained by whom the members of the two branches were to be elected, there remained to be determined the decisive question, which was to mark still more effectively the distinction between a purely national and a purely federal government, namely, the rule of suffrage, or the ratio of representation in the national legislature. The rule of suffrage adopted in the first Continental Congress was, as we have seen, the result of necessity; for it was impossible to ascertain the relative importance of each Colony; and, moreover, that Congress was in fact an assembly of committees of the different Colonies, called together to deliberate in what mode they could aid each other in obtaining a redress of their several grievances from Parliament and the Crown. But while, from the necessity of the case, they assigned to each Colony one vote in the Congress, they looked forward to the time when the relative wealth or population of the Colonies must regulate their suffrage in any future system of continental legislation.[20] The character of the government formed by the Articles of Confederation had operated to postpone the arrival of this period; because it was in the very nature of that system that each State should have an equal voice with every other. This system was the result of the formation of the State governments, each of which had become the present depositary of the political powers of an independent people. But if this system were to be changed,--if the people of the States were to be represented in each branch of the national legislature,--some ratio of representation must be adopted, or the idea of connecting them as a nation with the government that was to be instituted must be abandoned. It was obviously for the interest of the larger States, such as Virginia, Pennsylvania, and Massachusetts,--then the three leading States in point of population,--to have a proportionate representation of their whole inhabitants, without reference to age, sex, or condition. On the other hand, it was for the interest of the smaller States to insist on an equality of votes in the national legislature, or at least on the adoption of a ratio that would exclude some portions of the population of the great States. Some of the lesser States were exceedingly strenuous in their efforts to accomplish these objects, and more than once, in the course of the proceedings, declared their purpose to form a union on no other basis. In this posture of things the alternatives were, either to form no union at all, or only to form one between the large States willing to unite on the basis of proportionate representation; or to abolish the State governments, and throw the whole into one mass; or to leave the distinctions and boundaries between the different States, and adopt some equitable ratio of suffrage, as between the people of the several States, in the national legislature. The latter course was adopted in the committee, as to the first branch, by a vote of seven States in the affirmative, against three in the negative, one being divided.[21] The question was then to be determined, by what ratio the representation of the different States should be regulated; and here again any one of several expedients might be adopted. The basis of representation might be made to consist of the whole number of voters, or those on whom the States had conferred the elective franchise; or it might be confined to the white inhabitants, excluding all other races; or it might include all the free inhabitants of every race, excluding only the slaves; or it might embrace the whole population of each State. Some examination of each of these plans will illustrate the difficulties which had to be encountered. To have adopted the number of legal voters of the States as the ratio of representation in the national legislature would have been to adopt a system in which there were great existing inequalities. The elective franchise had been conferred in the different States upon very different principles; it was very broad in some of the States, and much narrower in others, according to their peculiar policy and manners. These inequalities could scarcely have been removed; for the right of suffrage in some of the States was more or less connected with their systems of descent and distribution of property, and those systems could not readily be changed, so as to adapt the condition of society to the new interest of representation and influence in the general government. This plan was, therefore, out of the question. It was nearly as impracticable, also, to confine the basis of representation to the white inhabitants of the States. Some of the States--such as Massachusetts, Connecticut, Rhode Island, New York, and Pennsylvania, in which slavery was already, or was ultimately to become, extinct, and Maryland, North Carolina, and Virginia, where slavery was likely to remain--had large numbers of free blacks. These inhabitants, who were regarded as citizens in some of the States, but not in others, were in all a part of their populations, contributing to swell the aggregate of the numbers and wealth of the State, and thus to raise it in the scale of relative rank. Their personal consequence, or social rank, was a thing too remote for special inquiry. A State that contained five or ten thousand of these inhabitants might well say, that, although of a distinct race, they formed an aggregate portion of its free population, too large to be omitted without opening the door to inquiries into the condition and importance of other classes of its free inhabitants. This was the situation of all the Northern States except New Hampshire, as well as of all the Middle and Southern States; and it was especially true of Virginia, which had nearly twice as many free colored persons as any other State in the Union. It was equally impracticable to form a national government in which the basis of representation should be confined to the free inhabitants of the States. The five States of Maryland, Virginia, North Carolina, South Carolina, and Georgia, including their slaves, were found by the first census, taken three years after the formation of the Constitution, to contain a fraction less than one half of the whole population of the Union.[22] In three of those States the slaves were a little less than half, and in two of them they were more than half, as numerous as the whites.[23] There was no good reason, therefore,--except the theoretical one that a slave can have no actual voice in government, and consequently does not need to be represented,--why a class of States containing nearly half of the whole population of the confederacy should consent to exclude such large masses of their populations from the basis of representation, and thereby give to the free inhabitants of each of the other eight States a relatively larger share of legislative power than would fall to the free inhabitants of the States thus situated. The objection arising from the political and social condition of the slaves would have had great weight, and indeed ought to have been decisive of the question, if the object had been to efface the boundaries of the States, and to form a purely consolidated republic. But this purpose, if ever entertained at all, could not be followed by the framers of the Constitution. They found it indispensable to leave the States still in possession of their distinct political organizations, and of all the sovereignty not necessary to be conferred on the central power, which they were endeavoring to create by bringing the free people of these several communities into some national relations with each other. It became necessary, therefore, to regard the peculiar social condition of each of the States, and to construct a system of representation that would place the free inhabitants of each distinct State upon as near a footing of political equality with the free inhabitants of the other States as might, under such circumstances, be practicable. This could only be done by treating the slaves as an integral part of the population of the States in which they were found, and by assuming the population of the States as the true basis of their relative representation. It was upon this idea of treating the slaves as inhabitants, and not as chattels, or property, that the original decision was made in the committee of the whole, by which it was at first determined to include them.[24] Having decided that there ought to be an equitable ratio of representation, the committee went on to declare that the basis of representation ought to include the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years; and they then added to the population thus described three fifths of all other persons not comprehended in that description, except Indians not paying taxes. The proportion of three fifths was borrowed from a rule which had obtained the sanction of nine States in Congress, in the year 1783, when it was proposed to change the basis of contribution by the States to the expenses of the Union from property to population.[25] At that time, the slaveholding States had consented that three fifths of their slaves should be counted in the census which was to fix the amount of their contributions; and they now asked that, in the apportionment of representatives, these persons might still be regarded as inhabitants of the State, in the same ratio. The rule was adopted in the committee, with the dissent of only two States, New Jersey and Delaware; but on the original question of substituting an equitable ratio of representation for the equality of suffrage that prevailed under the Confederation, New York united with New Jersey and Delaware in the opposition, and the vote of Maryland was divided. The next step was to settle the rule of suffrage in the Senate; and although it was earnestly contended that the smaller States would never agree to any other principle than an equality of votes in that body,[26] it was determined in the committee, by a vote of six States against five, that the ratio of representation should be the same as in the first branch.[27] Thus it appears that originally a majority of the States were in favor of a numerical representation in both branches. The three States of Virginia, Pennsylvania, and Massachusetts, the leading States in population, and with them North Carolina, South Carolina, and Georgia, found it at present for their interest to adopt this basis for both houses of the national legislature. It was a consequence of the principle of numerical representation, that the slaves should be included; and it does not appear that at this time any delegate from a Northern State interposed any objection, except Mr. Gerry of Massachusetts, who regarded the slaves as "property," and said that the cattle and horses of the North might as well be included. But the State which he represented was at this time pressing for the rights of population, and for a system in which population should have its due influence; and her vote, as well as that of Pennsylvania, was accordingly given for the principle which involved an admission of the slaves into the basis of representation, and for the proportion which the slave States were willing to take. These transactions in the committee of the whole are quite important, because they show that the original line of division between the States, on the subject of representation, was drawn between the States having the preponderance of population and the States that were the smallest in point of numbers. When, and under what circumstances, this line of division changed, what combinations a nearer view of all the consequences of numerical representation may have brought about, and how the conflicting interests were finally reconciled, will be seen hereafter. What we are here to record is the declaration of the important principle, that the legislative branch of the government was to be one in which the free people of the States were to be represented, and to be represented according to the numbers of the inhabitants which their respective States contained, counting those held in servitude in a certain ratio only. The general principles on which the powers of the national legislature were to be regulated, were declared with a great degree of unanimity. That it ought to be invested with all the legislative powers belonging to the Congress of the Confederation was conceded by all. This was followed by the nearly unanimous declaration of a principle, which was intended as a general description of a class of powers that would require subsequent enumeration, namely, that the legislative power ought to embrace all cases to which the State legislatures were incompetent, or in which the harmony of the United States would be interrupted by the exercise of State legislation. But the committee also went much farther, and without discussion or dissent declared that there ought also to be a power to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties made under the authority of the Union.[28] The somewhat crude idea of making a negative on State legislation a legislative power of the national government, shows that the admirable discovery had not yet been made of exercising such a control through the judicial department. Without such a control lodged somewhere, the national prerogatives could not be defended, however extensive they might be in theory. There had been, as Mr. Madison well remarked, a constant tendency in the States to encroach on the federal authority, to violate national treaties, to infringe the rights and interests of each other, and to oppress the weaker party within their respective jurisdictions. The expedient that seemed at first to be the proper remedy, and, as was then supposed, the only one that could be employed as a substitute for force, was to give the general government a power similar to that which had been exercised over the legislation of the Colonies by the crown of England, before the Revolution; and there were some important members of the Convention who at this time thought that this power ought to be universal.[29] They considered it impracticable to draw a line between the cases proper and improper for the exercise of such a negative, and they argued from the correctness of the principle of such a power, that it ought to embrace all cases. But here the complex nature of the government which they were obliged to establish made it necessary to depart from the theoretical correctness of a general principle. The sovereignty of the States would be entirely inconsistent with a power in the general government to control their whole legislation. As the direct authority of the national legislature was to extend only to certain objects of national concern, or to such as the States were incompetent to provide for, all the political powers of the States, the surrender of which was not involved in the grant of powers to the national head, must remain; and if a general superintendence of State legislation were added to the specific powers to be conferred on the central authority, there would be in reality but one supreme power in all cases in which the general government might see fit to exercise its prerogative. The just and proper sphere of the national government must be the limit of its power over the legislation of the States. In that sphere it must be supreme, as the power of each State within its own sphere must also be supreme. Neither of them should encroach upon the prerogatives of the other; and while it was undoubtedly necessary to arm the national government with some power to defend itself against such encroachments on the part of the States, there could be no real necessity for making this power extend beyond the exigencies of the case. Those exigencies would be determined by the objects that might be committed to the legislation of the central authority; and if a mode could be devised, by which the States could be restrained from interfering with or interrupting the just exercise of that authority, all that was required would be accomplished.[30] But to do this by means of a negative that was to be classed among the legislative powers of the new government, was to commit the subject of a supposed conflict between the rights and powers of the State and the national governments to an unfit arbitration. Such a question is of a judicial nature, and belongs properly to a department that has no direct interest in maintaining or enlarging the prerogatives of the government whose powers are involved in it. But the framers of the Constitution had come fresh from the inconveniences and injustice that had resulted from the unrestrained legislative powers of the States. Some of them believed it, therefore, to be necessary to make the authority of the United States paramount over the authority of each separate State; and a negative upon State legislation, to be exercised by the legislative branch of the national government, seemed to be the readiest way of accomplishing the object. Some of the suggestions of the mode in which this power was to operate strike us, at the present day, as singularly strange. No less a person than Mr. Madison, in answer to the objections arising from the practical difficulties in subjecting all the legislation of all the States to the revision of a central power, thought at this time that something in the nature of a commission might be issued into each State, in order to give a temporary assent to laws of urgent necessity. He suggested also that the negative might be lodged in the Senate, in order to dispense with constant sessions of the more numerous branch. But the radical objection to any plan of a negative on State legislation, as a legislative power of the general government, was, that it would not in fact dispense with the use of force against a State in the last resort. If, after the exercise of the power, the State whose obnoxious law had been prohibited should see fit to persist in its course, force must be resorted to as the only ultimate remedy. How different, how wise, was the expedient subsequently devised, when the appropriate office of the judicial power was discerned,--a power that waits calmly until the clashing authorities of the State and the nation have led to a conflict of right or duty in some individual case, and then peacefully adjudicates, in a case of private interest, the great question, with which of the two governments resides the power of prescribing the paramount rule of conduct for the citizen! Disobedience on the part of the State may, it is true, still follow after such an adjudication, and against an open array of force on the one side nothing but force remains to be employed on the other. But the great preventive of this dread necessity is found in the fact, that there has been an adjudication by a tribunal that commands the confidence of all, and in the moral influence of judicial determinations over a people accustomed to submit not only their interests, but their feelings even, to the arbitrament of juridical discussion and decision. * * * * * TABLE EXHIBITING THE POPULATIONS OF THE THIRTEEN STATES, ACCORDING TO THE CENSUS OF 1790. N. B.--In this abstract Maine is not included in Massachusetts, nor Kentucky and Tennessee in the States from which they were severed. +----------------+-----------+---------------+---------+-----------+ | | Whites. | Free Colored. | Slaves. | Total. | | +-----------+---------------+---------+-----------+ |New Hampshire, | 141,111 | 630 | 158 | 141,899 | |Massachusetts, | 373,254 | 5,463 | ..... | 378,717 | |Rhode Island, | 64,689 | 3,469 | 952 | 69,110 | |Connecticut, | 232,581 | 2,801 | 2,759 | 238,141 | |New York, | 314,142 | 4,654 | 21,324 | 340,120 | |New Jersey, | 169,954 | 2,762 | 11,423 | 184,139 | |Pennsylvania, | 424,099 | 6,537 | 3,737 | 434,373 | |Delaware, | 46,310 | 3,899 | 8,887 | 59,096 | |Maryland, | 208,649 | 8,043 | 103,036 | 319,728 | |Virginia, | 442,115 | 12,765 | 293,427 | 748,307 | |North Carolina, | 288,204 | 4,975 | 100,572 | 393,751 | |South Carolina, | 140,178 | 1,801 | 107,094 | 249,073 | |Georgia, | 52,886 | 398 | 29,264 | 82,548 | | +-----------+---------------+---------+-----------+ | Aggregate, | 2,898,172 | 58,197 | 682,633 | 3,639,002 | +----------------+-----------+---------------+---------+-----------+ Total population of the eight States in 1790, in which slavery had been or has since been abolished, 1,845,595. Total population of the five States in 1790, in which slavery existed, and still exists, 1,793,407. FOOTNOTES: [10] Edmund Randolph. See _ante_, Vol. I. p. 480. [11] Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, _ay_, 6; Connecticut, _no_, 1; New York divided (Colonel Hamilton _ay_, Mr. Yates _no_). Madison, Elliot, V. 132, 134. [12] Madison, Elliot, V. 134, 135. [13] Ibid. 135. The vote of Pennsylvania, in compliance with the wishes of Dr. Franklin, was given for a single house. [14] Massachusetts, New York, Pennsylvania, Virginia, North Carolina, Georgia, _ay_, 6; New Jersey, South Carolina, _no_, 2; Connecticut and Delaware divided. [15] See Mr. Sherman's remarks, made in committee, June 6; Madison, Elliot, V. 161. [16] See Mr. Madison's views, as stated in his debates, Elliot, V. 161. [17] Connecticut, New Jersey, South Carolina, _ay_, 3; Massachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, _no_, 8. [18] Mr. Wilson was in favor of this plan, and Mr. Madison seems to have favored it. [19] Madison, Elliot, V. 170. [20] _Ante_, Vol. I. Book I. ch. I. pp. 15-17. [21] Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay,_ 7; New York, New Jersey, Delaware, _no_, 3; Maryland, divided. [22] They contained 1,793,407 inhabitants; the other eight States had 1,845,595 when the federal census of 1790 was taken. [23] See the census of 1790, _post_, p. 55. [24] The population of the States was adopted in the committee of the whole, instead of their quotas of contribution, which, in one or another form, was the alternative proposition. The slaves were included, in a proportion accounted for in the text, as a part of the aggregate _population_; and it was not until a subsequent stage of the proceedings that this result was defended on the ground of their forming part of the aggregate _wealth_ of the State. [25] _Ante_, Vol. I. Book II. ch. III. p. 213, note 2, where the origin of the proportion of three fifths is explained. [26] By Mr. Sherman and Mr. Ellsworth. [27] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey, Delaware, Maryland, _no_, 5. Elliot, V. 182. [28] Madison, Elliot, V. 139. [29] Mr. Madison, Mr. Wilson, Mr. C. Pinckney, Mr. Dickinson. On the other hand, Mr. Williamson, Mr. Sherman, Mr. Bedford, and Mr. Butler strenuously opposed this plan. [30] Accordingly, a proposition to extend the negative on State legislation to all cases received the votes of three States only, viz. Massachusetts, Pennsylvania, and Virginia. CHAPTER III. CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY. The construction of a national executive, although not surrounded by so many inherent practical difficulties as the formation of the legislative department, was likely to give rise to a great many opposite theories. The questions, of how many persons the executive ought to consist, in what mode the appointment should be made, and what were to be its relations to the legislative power, were attended with great diversities of opinion. The question whether the executive should consist of one, or of more than one person, was likely to be influenced by the nature of the powers to be conferred upon the office. Foreseeing that it must necessarily be an office of great power, some of the members of the Convention thought that a single executive would approach too nearly to the model of the British government. These persons considered that the great requisites for an executive department--vigor, despatch, and responsibility--could be found in three persons as well as in one. Those, on the other hand, who favored the plan of a single magistrate, maintained that the prerogatives of the British monarchy would not necessarily furnish the model for the executive powers; and that unity in the executive would be the best safeguard against tyranny. But this point connected itself with the question, whether the executive should be surrounded by a council, and the latter proposition again involved the consideration of the precise relation of the executive to the legislative power. That a negative of some kind upon the acts of the legislature was essential to the independence of the executive, was a truth in political science not likely to escape the attention of many of the members of the Convention. Whether it should be a qualified or an absolute negative was the real, and almost the sole question; for although there were some who held the opinion that no such power ought to be given, it was evident from the first that its necessity was well understood by the larger part of the assembly. In the first discussion of this subject, the negative was generally regarded as a means of defence against encroachments of the legislature on the rights and powers of the other departments. It was supposed that, although the boundaries of the legislative authority might be marked out in the Constitution, the executive would need some check against unconstitutional interference with its own prerogatives; and that, as the judicial department might be exposed to the same dangers, the power of resisting these also could be best exercised by the executive. But an absolute negative for any purpose was favored by only a very few of the members, and the proposition first adopted was to give the executive alone a revisionary check upon legislation, which should not be absolute if it were afterwards overruled by two thirds of each branch of the legislature.[31] But inasmuch as this provision would leave the precise purposes of the check undetermined, and in order, as it would seem, to subject the whole of the legislative acts to revision and control by the executive, some of the members desired that the judiciary, or a convenient number of the judges, might be added to the executive as a council of revision. Among these persons were Mr. Madison and Mr. Wilson. The former expressed a very decided opinion, that, whether the object of a revisionary power was to restrain the encroachments of the legislature on the other departments, or on the rights of the people at large, or to prevent the passage of laws unwise in principle or incorrect in form, there would be great utility in annexing the wisdom and weight of the judiciary to the executive. But this proposition was rejected by a large majority of the States, and the power was left by the committee as it had been settled by their former decision. These proceedings, however, do not furnish any decisive evidence of the nature and purpose of the revisionary check. But before this feature of the Constitution had been settled by the committee, they had determined on a mode in which the executive should be appointed. It is singular that the idea of an election of the executive by the people, either mediately or immediately, found so little favor at first, that on its first introduction it received the votes of but two States. Since the executive was to be the agent of the legislative will, it was argued by some members that it ought to be wholly dependent, and ought therefore to be chosen by the legislature. The experience of New York and of Massachusetts, on the other hand,--where the election of the first magistrate by the people had been successfully practised,--and the danger that the legislature and the candidates might play into each other's hands, and thus give rise to constant intrigues for the office, were the arguments employed by others. Upon the introduction of a proposition that the States be divided into districts, for the election by the people of electors of the executive, two States only recorded their votes in its favor, and eight States voted against it.[32] By the vote of eight States it was then determined that the executive should be elected by the national legislature for the term of seven years;[33] and subsequently it was determined that the executive should be ineligible to a second term of office, and should be removable on impeachment and conviction of malpractice or neglect of duty. A single executive was agreed to by a vote of seven States against three.[34] After the mode in which the negative was to be exercised had been settled, an attempt was made to change the appointment, and vest it in the executives of the States. But this proposal was decisively rejected.[35] The judiciary was the next department of the proposed plan of government that remained to be provided. Like the executive, it was a branch of sovereign power unknown to the Confederation. The most palpable defect of that government, as I have more than once had occasion to observe, was the entire want of sanction to its laws. It had no judicial system of its own for decree and execution against individuals. All its legislation, both in nature and form, prescribed duties to States. The observance of these duties could only be enforced against the parties on whom they rested, and this could be done only by military power. But it was the peculiar and anomalous situation of the American Confederacy, that the power to employ force against its delinquent members had not been expressly delegated to it by the Articles of Union; and that it could not be implied from the general purposes and provisions of that instrument, without a seeming infraction of the article by which the States had reserved to themselves every power, jurisdiction, and right not "expressly" delegated to the United States. If this objection was well founded,--and it was universally held to be so,--we may well concur in the remark of The Federalist, that "the United States presented the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws."[36] The Confederation, too, had found it to be entirely impracticable to rely on the tribunals of the States for the execution of its laws. Such a reliance in a confederated government presupposes that the party guilty of an infraction of the laws or ordinances of the confederacy will try, condemn, and punish itself. The whole history of our Confederation evinces the futility of laws requiring the obedience of States, and proceeding upon the expectation that they will enforce that obedience upon themselves. The necessity for a judicial department in the general government was, therefore, one of the most prominent of those "exigencies of the Union," for which it was the object of the present undertaking to provide. The place which that department was to occupy in a national system could be clearly deduced from the office of the judiciary in all systems of constitutional government. That office is to apply to the subjects of the government the penalties inflicted by the legislative power for disobedience of the laws. Disobedience of the lawful commands of a government may be punished or prevented in two modes. It may be done by the application of military power, without adjudication; or it may be done through the agency of a tribunal, which adjudicates, ascertains the guilty parties, and applies to them the coercion of the civil power. This last is the peculiar function of a judiciary; and in order that it may be discharged effectually, the judiciary that is to perform this office must be a part of the government whose laws it is to enforce. It is essential to the supremacy of a government, that it should adjudicate on its own powers, and enforce its own laws; for if it devolves this prerogative on another and subordinate authority, the final sanction of its laws can only be by a resort to military power directed against those who have refused to obey its lawful commands. One of the leading objects in forming the Constitution was to obtain for the United States the means of coercion, without a resort to force against the people of the States collectively. Mr. Madison, at a very early period in the deliberations of the Convention, declared that the use of force against a State would be more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.[37] At his suggestion, a clause in Governor Randolph's plan authorizing the use of force against a delinquent member of the confederacy was laid aside, in order that a system might be framed which would render it unnecessary. This could be done only by making the authority of the government supreme in relation to the rights and powers that might be committed to it; and it could be made so only by applying its legislation to individuals through the intervention of a judiciary. A confederacy whose legislative power operates only upon States, or upon masses of people in a collective capacity, can be supreme only so far as it can employ superior force; and when the issue that is to determine the question of supremacy is once made up in that form, there is an actual civil war. The introduction, therefore, of a judicial department into the new plan of government, of itself evinces an intention to clothe that government with powers that could be executed peacefully, and without the necessity of putting down the organized opposition of subordinate communities. By their resort to this great instrumentality, we may perceive how much, in this particular, the framers of the Constitution were aided by the spirit and forms of the institutions which the people of these States had already framed for their separate governments. The common law, which the founders of all these States had brought with them to this country, had accustomed them to regard the judiciary as clothed with functions in which two important objects were embraced. By the known course of that jurisprudence the judiciary is, in the first place, the department which declares the construction of the laws; and, in the second place, when that department has announced the construction of a law, it is not only the particular case that is settled, but the rule is promulgated that is to determine all future cases of the same kind arising under the same law. Thus the judiciary, in governments whose adjudications proceed upon the course of the common law, becomes not merely the arbitrator in a particular controversy, but the department through which the government interprets the rule of action prescribed by the legislature, and by which all its citizens are to be guided. This office of the judicial department had long been known in all the States of the Union at the time of the formation of the national Constitution. By the introduction of this department into their plan of government, the framers of the Constitution obviously intended that it should perform the same office in their national system which the corresponding department had always fulfilled in the States. No other function of a judiciary was known to the people of the United States, and this function was both known and deemed essential to a well-regulated liberty. It was known that the judicial department of a government is that branch by which the meaning of its laws is ascertained, and applied to the conduct of individuals. To effect this, it was introduced into the system whose gradual formation and development we are now examining. The committee not only declared that this department, like the legislative and the executive, was to be "supreme," but they proceeded to make it so. One of the first questions that arose concerning the construction of the judiciary was, whether it should consist solely of one central tribunal, to which appeals might be carried from the State courts, or should also embrace inferior tribunals to be established within the several States. The latter plan was resisted as an innovation, which, it was said, the States would not tolerate. But the necessity for an effective judiciary establishment, commensurate with the legislative authority, was generally admitted, and a large majority of the States were found to be in favor of conferring on the national legislature power to establish inferior tribunals;[38] while the provision for a supreme central tribunal was to be made imperative by the Constitution. The intention of the committee also to make the judicial coextensive with the legislative authority, appears from the definition which they gave to both. Upon the national legislature they proposed to confer, in addition to the rights vested in Congress by the Confederation, power to legislate in all cases to which the separate States were incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual legislation; and the further power to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties subsisting under the authority of the Union. The jurisdiction of the national judiciary it was declared should extend to all cases which respect the collection of the national revenue, and to impeachments of national officers; and then the comprehensive addition was made of "questions which involve the national peace and harmony." This latter provision placed the general objects, which it was declared ought to be embraced by the legislative power, within the cognizance of the judiciary. Those objects were not yet described in detail, the purpose being merely to settle and declare the principles on which the powers of both departments ought to be founded. But, as we have already had occasion to see, the idea of vesting in the judicial department such control over the legislation of the separate States as might be surrendered by them to the national government, was not yet propounded. The principle which was to ascertain the extent of that control was already introduced and acted upon, namely, that it should embrace all laws of the States which might conflict with the Constitution, or the treaties made under the national authority. The plan at present was, as we have seen, to treat this as a legislative power, to be executed by the direct control of a negative. But a nearer view of the great inconveniences of such an arrangement, and the general basis of the jurisdiction already marked out for the national judiciary, led to the development of the particular feature which was required as a substitute for direct interference with the legislative powers of the States. In truth, the important principle which proposed to extend the judicial authority to questions involving the national peace and harmony, embraced all the power that was required; and it only remained to be seen that the exercise of that power by the indirect effect of judicial action on the laws of the States after they had been passed, was far preferable to a direct interference with those laws while in the process of enactment. The committee, with complete unanimity, determined that the judges of the supreme tribunal should hold their offices during good behavior.[39] This tenure of office was taken from the English statutes, and from the constitutions of some of the States which had already adopted it. The commissions of the judges in England, until the year 1700, were prescribed by the crown; and although they were sometimes issued to be held during good behavior, they were generally issued during the pleasure of the crown, and it was always optional with the crown to adopt the one or the other tenure, as it saw fit. But in the statute passed in the thirteenth year of the reign of William III., which finally secured the ascendency of the Protestant religion in that country, and made other provisions for the rights and liberties of the subject, it was enacted that judges' commissions should be made during good behavior, and that their salaries should be ascertained and established; but it was made lawful for the crown to remove them upon the address of both houses of Parliament.[40] Still, however, it was always considered that the commissions of the judges expired on the death of the king; and for the purpose of preventing this, and in order to make the judges more effectually independent, a new statute, passed in the first year of the reign of George III., declared that the commissions of the judges should continue in force during their good behavior, notwithstanding the demise of the crown; and that such salaries as had been once granted to them should be paid in all future time, so long as their commissions should remain in force. The provision which made them removable by the crown on the address of both houses of Parliament was retained and re-enacted.[41] In framing the Constitution of the United States, the objectionable feature of the English system was rejected, and its valuable provisions were retained. No one, at the stage of the proceedings which we are now examining, proposed to make the judges removable on the address of the legislature; and although at a much later period this provision was brought forward, it received the vote of a single State only. The first determination of the Convention, in committee of the whole, was, that the judges should hold their offices during good behavior; that they should receive punctually, at stated times, a fixed compensation for their services, in which no _increase_[42] or diminution should be made so as to affect the persons actually in office at the time. The appointment of the judges was by general consent, at this stage of the proceedings, vested in the Senate. * * * * * NOTE ON THE JUDICIAL TENURE. The English historians and juridical writers have not given a very satisfactory account of the purpose for which the power of removal on the address of the two Houses of Parliament was incorporated with the provision which gave the judges their commissions during good behavior. It is obvious that, if the power of removal is to be regarded as an unqualified power, to be exercised for any cause, or without the existence of any cause, the office is held during the pleasure of the legislative and executive branches of the government, and not during the official good conduct of the incumbent. In this view of it, therefore, the provision is inconsistent with the declared tenure of the commission. On the other hand, if the _power_ of removal is not to be regarded as a limitation upon the tenure of the office, but the _process_ of removal is to be considered as a mode in which the unfitness or incapacity of the incumbent is to be ascertained,--treating it as a substitute for impeachment, to be used in cases of palpable official incapacity or unfitness,--then it is not repugnant to the tenure of good behavior. In support of this view of the subject it is to be observed that, in the statute of 1 Geo. III. c. 23, the tenure of good behavior is made the leading and primary object of the enactment. The motives for it are set forth with great point and emphasis. The King is made to declare from the throne to the two houses of Parliament that he looks upon the independency and uprightness of judges as essential to the impartial administration of justice, as one of the best securities to the rights and liberties of the subject, and as most conducive to the honor of the crown. The enacting part of the statute, which follows this recital, provides anew that the judges' commissions shall be and remain in force during their good behavior, notwithstanding a demise of the crown; and the power of removal by the King, on the address of both houses, follows this enactment as a _proviso_. If, therefore, a not unusual rule of construction is applied, the power embraced in the _proviso_ should be so construed as to make its operation consistent with, and not repugnant to, the great purpose of the statute, which was to establish the tenure of good behavior. In this view the rightful exercise of the power may be confined to cases where the individual is no longer within that tenure, or, in other words, where the good behavior has ceased, or become impossible. Upon this construction the power of removal can only be rightfully exercised when a cause exists which touches the official conduct or capacity of the incumbent. In the Constitution of the State of Massachusetts, formed in 1780, the power of removal by the executive, on the address of both houses of the legislature, was adopted from the English statutes, and it was introduced as a _proviso_ after the tenure of good behavior had been emphatically declared for all judicial officers, just as it stands in the act of 1 Geo. III. An objection which has sometimes been urged against the construction above suggested is, that it is narrower than the terms of the provision, and that it would not include a case where a judge may have discharged all his official duties with propriety and ability, and may yet be personally obnoxious, as, for example, on account of gross immorality. But the answer to this objection is, that the question, whether a case of official good conduct accompanied by personal immorality, or the like defect of character, was intended to be within the power of removal, must be determined on a careful view of the whole provision. The meaning and scope of the qualification of "good behavior" must be first ascertained. If it means simply that the individual is to hold his commission so long as each official duty is discharged in the manner contemplated by law, then a mere personal immorality, which has not affected or influenced the discharge of official duty, is not inconsistent with the good behavior established as the tenure of the office. But if the good behavior means, not merely that the individual shall discharge his official duties in a competent manner, with an average amount of ability, and without corruption, but that he shall so order his life and conversation as not to expose himself to a cessation of the power to act intelligently and uprightly, then there may undoubtedly be a case of personal immorality that would touch the tenure of the office. Still it must be the tenure of the office that is touched, and it must be touched by misconduct or incapacity. The phrase "good behavior" is technical, and has always had a meaning attached to it which confines it to the discharge of official duty. It is, therefore, not what men think of the individual, or how they feel towards him, or how they regard him, but what he does or omits officially, that is to determine whether he continues to behave well in his office; and unless some conduct, or some bodily or mental condition, is adduced, that shows him to be incapable of fulfilling the duties of his station in the manner in which the law intends they shall be discharged, his tenure of good behavior is not lost. But the naked power of removal by the other two branches of the government exists in the English constitution, and in that of the State of Massachusetts, without any declaration of the purposes or occasions to which it is to be applied; and it is not easy to reconcile it with the avowed object of judicial independence obviously embraced by the terms of the commission prescribed in both of them. The two most important native writers on the English constitution, Sir William Blackstone and Mr. Hallam, regard the provision as a restraint on the former practice of the crown, of dismissing judges when they were not sufficiently subservient to the views of the government in political prosecutions. Mr. Hallam, after referring to the provisions of the two statutes, lays down the proposition, that "no judge can be dismissed from office, except in consequence of a conviction for some offence, or the address of both houses of Parliament, which is tantamount to an act of the legislature." (Constitutional History, III. 262.) He suggests further, that although the commissions of the judges cannot be vacated by the authority of the crown, yet that they are not wholly out of the reach of its influence. They are accessible to the hope of further promotion, to the zeal of political attachment, to the flattery of princes and ministers, and to the bias of their professional training. He therefore commends the wisdom of subjecting them in some degree to legislative control. (Ibid.) But it is not to be inferred from his remarks that that control can be rightfully exercised without the existence of a cause which affects their good behavior. On the contrary, he appears to consider that the purpose was to prevent a subserviency to the crown in their official conduct, by subjecting _that conduct_ to legislative scrutiny. To the honor of England, it is to be remembered that, since this power was recognized, there has never been an instance in which a judge has been removed for political or party purposes. Mr. Justice Story has taken substantially the same view of the subject. He says: "The object of the act of Parliament was to secure the judges from removal at the mere pleasure of the crown; but not to render them independent of the action of Parliament. By the theory of the British constitution, every act of Parliament is supreme and omnipotent. It may change the succession to the crown, and even the very fundamentals of the constitution. It would have been absurd, therefore, to have exempted the judges alone from the general jurisdiction of this supreme authority in the realm. The clause was not introduced into the act for the purpose of conferring the power on Parliament, for it could not be taken away or restricted, but simply to recognize it as a qualification of the tenure of office; so that the judges should have no right to complain of any breach of an implied contract with them, and the crown should not be deprived of the means to remove an unfit judge whenever Parliament should, in their discretion, signify their assent." (Commentaries on the Constitution, Vol. II. § 1623.) By describing it as a "qualification of the tenure of office," the learned commentator probably did not mean that the power was intended to be recognized as a power to remove judges against whom no official misconduct or incapacity could be charged; for the context shows that he was speaking of the removal of "unfit" judges as a power that it was proper to recognize and regulate. If he intended to lay it down as a complete and actual qualification of the tenure of good behavior, it must have been upon the theory to which he refers, upon which an act of Parliament can do anything, either with or without reason. Upon this theory all the commissions of all the judges in the realm may be vacated without inquiry into their fitness or unfitness. But if the true view of the subject is, that the _King's commission_, which runs _quamdiu se bene gesserit_, cannot be determined when the crown alone decides that the good behavior has ceased, or become impracticable, but may be determined when the whole legislative power has so decided, then in one sense it _is_ a qualification of the commission; because the latter emanates from the crown, but after it has issued, it is to be superintended by Parliament _and_ the crown. When we turn to our American constitutions, all embarrassment arising from the English theory of the omnipotence of the legislative department vanishes. In our systems of government the people alone possess supreme power. The legislature is but the organ of their will for certain specific and limited purposes, which are carefully defined in a written constitution; and no power that is not plainly confided by the constitution to the legislative and executive departments of the government can be exercised by them. Under every American constitution, therefore, which has conferred upon the executive power to remove a judge upon the address of the two houses of the legislature, the question whether that power extends to any cases but those of official misconduct or incapacity must be determined by a careful consideration of the position which that constitution assigns to the judiciary. If, as is the case, for example, under the Constitution of the State of Massachusetts, there is a clear intention manifest to make the judiciary independent of the other departments, and this intention appears by other provisions, and the enunciation of other principles besides that which in terms establishes the tenure of good behavior, then the power of removal upon address ought to be construed and exercised consistently with the tenure of good behavior, and not in direct repugnance to it. It is plain that, if the power is construed as a naked and unrestrained power, established as a direct qualification of the tenure of office, it may be used for party purposes, and may be exercised for any cause for which a dominant party may see fit to employ it. The danger of the abuse of this power, arising from the absence of any express restriction upon it, and of any statement of its purpose, in the Constitution of Massachusetts, has led to an unsuccessful effort in that State to make its exercise more difficult than it is under the actual provision. In the Convention held in the year 1820, in which the Constitution was subjected to revision, Mr. Webster, Mr. Justice Story, and others of the eminent jurists of Massachusetts, endeavored to procure an amendment requiring the address to be adopted by a vote of two thirds in both branches, instead of allowing it to be carried, as the Constitution has always stood, and as the rule is in England, by a bare majority. The effort failed; but the result of the whole discussion to which it gave rise shows the general understanding of the people of the State with regard to the rightful extent of this power. The Convention was a very remarkable assembly of the intellect and worth of the State, and both the political parties of the time were fully represented in it, by their most distinguished members. All were agreed that the power was capable of abuse, and that to apply it to any other than cases of official incapacity or unfitness would be an abuse. But those who opposed the adoption of a two-thirds rule were unwilling to anticipate such an abuse of the power, and their arguments prevailed. The framers of the Constitution of the United States intrusted no such power over the judiciary to the other branches of the government. They regarded the possibility of its being used for improper purposes as a sufficient reason why it should not exist. They thought it, moreover, a contradiction in terms to say that the judges should hold their offices during good behavior, and yet be removable without a trial. But the radical objection was one that does not seem to have been sufficiently attended to in the early formation of some of the State constitutions, but which the peculiar system established by the Constitution of the United States made especially prominent. That Constitution was designed to be in some respects an abridgment of the previous powers of the States. Like the State constitutions, also, it embraced a careful distribution of the powers of government between the different departments, and a careful separation of the functions of one department from those of another. Questions must, therefore, necessarily arise in the administration of the government, whether one of these departments had overstepped the limits assigned to it as against the others, and whether the action of the general or the State governments in particular instances is within their appropriate spheres. These, now familiar to us as constitutional questions, were to be subjected to the arbitrament of the national judiciary; and it was almost universally felt that this delicate and important power must be confided to judges whose tenure of office could be touched only by the solemn process of accusation and impeachment. The same necessity exists under a State constitution, but perhaps not in the same degree; for while the judiciary of a State is often called upon to decide finally upon the conformity of acts of legislation with the State constitution,--and ought therefore clearly to be beyond the reach of legislative influence,--yet no State judiciary is the final arbiter between the rights and powers of the national government and the rights and powers of the States. This function belongs to the supreme judiciary of the United States. It was foreseen that it would not infrequently involve the decision of questions in which whole classes of States might have the deepest interest, which would connect themselves with party discussions, and on which the representatives of the States in the national legislature would be likely to share in the feelings, and even in the passions, of their constituents. There could be no security for a judiciary called upon to decide such questions, if they were to be subject to a power of removal by the other two branches of the government. Their commissions might make them theoretically independent, but practically they could be removed at the pleasure of those whom they might have offended. In truth, there is no State in this Union where such a power of removal is vested without qualification in the legislative and executive departments, in which the judges can be said to hold their commissions during good behavior, unless that power is construed to embrace only those cases of palpable incapacity in which an impeachment would be unnecessary or impracticable. As a naked and unqualified power, it is repugnant to the tenure of good behavior. It was so regarded in the Convention which framed the Constitution of the United States, where a proposition to introduce it received the vote of the single State of Connecticut only. (Madison, Elliot, V. 481, 482.) FOOTNOTES: [31] Adopted by the votes of eight States against two,--Connecticut and Maryland voting in the negative. [32] Pennsylvania, Maryland, _ay_, 2; Massachusetts, Connecticut, New York, Delaware, Virginia, North Carolina, South Carolina, Georgia, _no_, 8. [33] Pennsylvania and Maryland, _no_. [34] New York, Delaware, and Maryland, _no_. [35] Nine States voted against it, and one (Delaware) was divided. [36] The Federalist, No. 21. [37] Madison, Elliot, V. p. 140. [38] Eight States in the affirmative, two in the negative, and one divided. [39] This was afterwards applied to the judges of the inferior courts also. [40] Act 12 & 13 William III. ch. 2. [41] Act 1 Geo. III. ch. 23. [42] This was afterwards stricken out. CHAPTER IV. ADMISSION OF NEW STATES.--GUARANTY OF REPUBLICAN GOVERNMENT.--POWER OF AMENDMENT.--OATH TO SUPPORT THE NEW SYSTEM.--RATIFICATION. Having settled a general plan for the organization of the three great departments of government, the committee next proceeded to provide for certain other objects of primary importance, the necessity for which had been demonstrated by the past history of the Confederacy. The first of these was the admission of new States into the Union. It had long been apparent, that the time would sooner or later arrive when the limits of the United States must be extended, and the number of the States increased. Circumstances had made it impossible that the benefits and privileges of the Union should be confined to the original thirteen communities by whom it had been established. Population had begun to press westward from the Atlantic States with the energy and enterprise that have marked the Anglo-American character since the first occupation of the country. Wherever the hardy pioneers of civilization penetrated into the wilderness of the Northwest, they settled upon lands embraced by those shadowy boundaries which carried the territorial claims of some of the older States into the region beyond the Ohio. Circumstances, already detailed in a former part of this work, had compelled a surrender of these territorial claims to the United States; and in the efforts made by Congress, both before and after the cessions had been completed, to provide for the establishment of new States, and for their admission into the Union, we have already traced one of the great defects of the Confederation, which rendered it incapable of meeting the exigencies created by this inevitable expansion of the country.[43] In the year 1784, when Mr. Jefferson brought into Congress a measure for the organization and admission of new States, to be formed upon the territories that had been or might thereafter be ceded to the United States, he seems to have considered that the Articles of Confederation authorized the admission of new States formed out of territory that had belonged to a State already in the Union, by a vote of nine States in Congress. But a majority of the States in Congress evidently regarded the power of admission as doubtful; and although they passed the resolves for the admission of new States,--principally because it was extremely important to invite cessions of Western territory,--they left the provision as to the mode of admission so indefinite, that the whole question of power would have to be opened and decided on the first application that might be made by a State to be admitted into the Union.[44] When the Ordinance of 1787 was formed, it made provision for the establishment of new States in the territory, and declared that, when any of them should have sixty thousand free inhabitants, it should be admitted into Congress on an equal footing with the original States. But the mode of admission was not prescribed. The power to admit was assumed, and no rule of voting on the question of admission was referred to. The probability is, that Congress anticipated at this time that a definite constitutional power would be provided by the Convention that had been summoned to revise the federal system. This power was embraced in the plan adopted in the committee of the whole of that body, by a resolve which declared "that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole." In what mode this provision was made will be seen hereafter, when we come to examine the framework of the Constitution. Another of the new powers now proposed to be given to the Union was that of protecting and upholding the governments of the States. I have already had occasion to explain the relations of the Confederation to its members in a time of internal disturbance and peril; and have given to the incapacity of that government to afford any aid in such emergencies great prominence among the causes which led to the revision of the federal system.[45] Under that system the States had been so completely sovereign, and so independent of each other in all that related to their internal concerns, that the government of any one of them might have been subverted without the possibility of an authorized and regulated interference by the rest. The constitutional and republican liberty that had been established in these States after the Revolution had freed them from the dominion of England, was at that period a new and untried experiment; and in order that we of this generation may be able to appreciate the importance of the guaranty proposed to be introduced into the Constitution of the United States, it is necessary for us to look somewhat farther than the particular circumstances of the commotions in New England that marked the year 1787 as an era of especial danger to these republican governments. It is, in fact, necessary for us to remember the contemporaneous history of Europe, and to observe how the events that were taking place in the Old World necessarily acted upon our condition, prospects, and welfare. The French Revolution, consummated in 1791 by the execution of the King, was already begun when the Constitution of the United States went into operation. No one who has examined the history of the first years of our present national government, can fail to have been impressed with the dangers which the administration of our domestic affairs incurred of becoming complicated with the politics of Europe. As in all other countries, so in America, the events and progress of the Revolution in France found sympathy or reprobation, according to the natural tendencies, the previous associations, and the political sentiments of individuals. But in the United States there was a peculiar and predisposing cause for the liveliest interest in the success of the principles that were believed, by large masses of the people, to be involved in the French Revolution. Our own struggles for liberty, our bold and successful assertion of the rights of man, and our achievement of the means and opportunity of self-government, had evidently and strikingly acted upon France. The people of the United States were fully sensible of this; and transferring to the French nation the debt of gratitude for the aid which had flowed to us in the first instance from their government without any special influence of their own, large numbers of our people became warmly enlisted in the cause of that Revolution, of which the early promise seemed so encouraging to the best hopes of mankind, and the full development of which first ruined the interests of liberty, in the wanton excesses of anarchy and national ambition, and finally crushed them beneath the usurpations and necessities of military despotism. On the other hand, the more cautious--who, if they had not from the first looked with distrust upon the whole movement of the Revolutionary party in France, very soon believed that it could result in no real benefit to France or to the world--tended strongly and naturally to the side of those governments with which the leaders of the Revolution had to contend. In consequence of this state of feeling among different portions of the people of the United States, with reference to French affairs, and of the conduct of France and England towards ourselves, the administration of Washington had great difficulty both in preserving the neutrality of the country, and in excluding foreign influence and interference in our domestic affairs. Had this state of things, which followed immediately after the inauguration of our new government, found us still under the Confederation, there can be no doubt that our condition would have afforded to the Revolutionary party in France the means not only of disseminating their principles among us, but also of overturning any of the institutions of the weaker States which might have stood in the way of their acquiring an influence in America. Yet what form or principle of government is there in the world, that more imperatively requires all foreign or external influence to be repelled, than our own republican system, of which it is a cardinal doctrine that every institution and every law must express the uncontrolled and spontaneous will of a majority of the people who constitute the political society? Other governments may be upheld by the interference of their neighbors; other systems may require, and perhaps rightfully admit, foreign influence. Ours demand an absolute immunity from foreign control, and can exist only when the authority of the people is made absolutely free. That their authority should be made and kept free to act upon the principles that enable it to operate with certainty and safety, it requires the guaranty of a system that rests upon the same principles, is committed to the same destiny, is itself constituted by American power, and is created for the express purpose of preserving the republican form, the theory and the right of self-government. Such was the purpose of the framers of the Constitution, when, in this early stage of their deliberations, they determined that a republican constitution should be guaranteed by the United States to each of the States.[46] The object of this provision was, to secure to the people of each State the power of governing their own community, through the action of a majority, according to the fundamental rules which they might prescribe for ascertaining the public will. The insurrection in Massachusetts, then just suppressed, had made the dangers that surround this theory of government painfully apparent. It had demonstrated the possibility that a minority might become in reality the ruling power. Fortunately, no foreign interference had then intervened; but a very few years only elapsed, before a crisis occurred, in which the institutions of the States would have been quite unable to withstand the shocks proceeding from the French Revolution, if the government of the Union had not been armed with the power of protecting and upholding them. The committee also added another new feature to their plan of government, which was a capacity of being amended. The Articles of Confederation admitted of changes only when they had been agreed upon in Congress, and had afterwards been confirmed by the legislatures of all the States. Indeed, it resulted necessarily from the nature of that government, that it could only be altered by the consent of all the parties to it. It was now proposed and declared, that provision ought to be made for the amendment of the Articles of Union, whenever it should seem necessary. This declaration looked to the establishment of some new method of originating improvements in the system of government, and a new rule for their adoption. It was also determined that the members of the State governments should be bound by oath to support the Articles of Union. The purpose of this provision was to secure the supremacy of the national government, in cases of collision between its authority and the authority of the States. It was a new feature in the national system, and received at first the support of only a bare majority of the States.[47] Finally, it was provided that the new system, after its approbation by Congress, should be submitted to representative assemblies recommended by the State legislatures, to be expressly chosen by the people to consider and decide thereon. The question has often been discussed, whether this mode of ratification marks in any way the character of the government established by the Constitution. At present it is only necessary to observe, that the design of the committee was to substitute the authority of the people of the States in the place of that of the State legislatures, for a threefold purpose. First, it was deemed desirable to resort to the supreme authority of the people, in order to give the new system a higher sanction than could be given to it by the State governments. Secondly, it was thought expedient to get rid of the doctrine often asserted under the Confederation, that the Union was a mere compact or treaty between independent States, and that therefore a breach of its articles by any one State absolved the rest from its obligations. In the third place, it was intended, by this mode of ratification, to enable the people of a less number of the States than the whole to form a new Union, if all should not be willing to adopt the new system.[48] The votes of the States in committee, upon this new mode of ratification, show that on one side were ranged the States that were aiming to change the principle of the government, and on the other the States that sought to preserve the principle of the Confederation.[49] These, together with a provision that the authority of the old Congress should be continued to a given day after the changes should have been adopted, and that their engagements should be completed by the new government, were the great features of the system prepared by the committee of the whole, and reported to the Convention, on the thirteenth of June.[50] FOOTNOTES: [43] _Ante_, Vol. I. Book III. Chap. V. [44] Mr. Jefferson has very lucidly stated the position of the question in some observations furnished by him, when in Paris, to one of the editors of the _Encyclopédie Méthodique_, in 1786 or 1787, which I here insert entire. "The eleventh Article of Confederation admits Canada to accede to the Confederation at its own will, but adds, 'no other Colony shall be admitted to the same unless such admission be agreed to by nine States.' When the plan of April, 1784, for establishing new States, was on the carpet, the committee who framed the report of that plan had inserted this clause: 'Provided nine States agree to such admission, according to the reservation of the eleventh of the Articles of Confederation.' It was objected,--1. That the words of the Confederation, 'no other Colony,' could refer only to the residuary possessions of Great Britain, as the two Floridas, Nova Scotia, &c., not being already parts of the Union; that the law for 'admitting' a new member into the Union could not be applied to a territory which was already in the Union, as making part of a State which was a member of it. 2. That it would be improper to allow 'nine' States to receive a new member, because the same reasons which rendered that number proper now would render a greater one proper when the number composing the Union should be increased. They therefore struck out this paragraph, and inserted a proviso, that 'the consent of so many States in Congress shall be first obtained as may at the time be competent'; thus leaving the question whether the eleventh Article applies to the admission of new States to be decided when that admission shall be asked. See the Journal of Congress of April 20, 1784. Another doubt was started in this debate, viz. whether the agreement of the nine States required by the Confederation was to be made by their legislatures, or by their delegates in Congress? The expression adopted, viz. 'so many States in Congress is first obtained,' shows what was their sense of this matter. If it be agreed that the eleventh Article of the Confederation is not to be applied to the admission of these new States, then it is contended that their admission comes within the thirteenth Article, which forbids 'any alteration unless agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State.' The independence of the new States of Kentucky and Franklin will soon bring on the ultimate decision of all these questions." (Jefferson's Works, IX. 251.) That the admission of a new State into the Union could have been regarded as an alteration of the Articles of Confederation, within the meaning and intention of the thirteenth Article, seems scarcely probable. Such an admission would only have increased the number of the parties to the Union, but it would of itself have made no change in the Articles; and it was against alterations _in the Articles_ that the provision of the thirteenth was directed. The objections which Mr. Jefferson informs us were raised in Congress to a deduction of the power from the eleventh Article, appear to be decisive. In truth, when the Articles of Confederation were framed, the subject of the admission of new States, so far as it had been considered at all, was connected with the difficult and delicate controversy respecting the western boundaries of some of the old States, and the equitable claim of the Union to become the proprietor of the unoccupied lands beyond those boundaries. An attempt was made to obtain for Congress, in the Articles of Confederation, power to ascertain and fix the western boundaries of those States, and to lay out the lands beyond them into new States. But it failed (_ante_, Vol. I. 291), and Congress could thereafter be said to possess no power to admit new States, except what depended on a doubtful construction of the Articles of Confederation. Still, both when they invited the cessions of their territorial claims by the States of Virginia, New York, &c., and after those cessions had been made, Congress acted as if they had constitutional authority to form new States, and to admit them into the Union. (_Ante_, Vol. I. 292-308.) When the Ordinance of 1787, for the regulation and government of the Northwestern Territory, was adopted, the power to admit new States was again assumed. The Convention for forming the Constitution was, however, then sitting, and it may be that the framers of the Ordinance introduced into that instrument the stipulation that the new States should be admitted on an equal footing with the old ones, in the confidence that the constitutional power would be supplied by the Convention. At any rate, the provisions of the Ordinance, as well as those of the previous resolves of Congress on the same subject of the Northwestern Territory, and the position of Kentucky, Vermont, Maine, and Tennessee (then called Franklin), imposed upon the Convention an imperative necessity for some action that would open the door of the Union to new members. [45] _Ante_, Vol. I. Book III. Chap. III. pp. 260-275. [46] As the resolution was originally passed, it declared that "a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States." On account of the ambiguity of the expression "existing laws," and the controversies to which it might give rise, the provision was subsequently changed to a guaranty of "a republican form of government," and of protection against "invasion" and "domestic violence," as it now stands in Art. IV. Sect. 4 of the Constitution. [47] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia voted for it (6); Connecticut, New Jersey, New York, Delaware, and Maryland voted against it (5). [48] See Madison, Elliot, V. 157, 158, 183. [49] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey, _no_, 3; Delaware, Maryland, divided. See further on the subject of "Ratification," _post_, Index. [50] The report was in the following words:-- "1. _Resolved_, That it is the opinion of this committee that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary. "2. _Resolved_, That the national legislature ought to consist of two branches. "3. _Resolved_, That the members of the first branch of the national legislature ought to be elected by the people of the several States for the term of three years; to receive fixed stipends by which they may be compensated for the devotion of their time to the public service, to be paid out of the national treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service, and under the national government, for the space of one year after its expiration. "4. _Resolved_, That the members of the second branch of the national legislature ought to be chosen by the individual legislatures; to be of the age of thirty years, at least; to hold their offices for a term sufficient to insure their independence, namely, seven years; to receive fixed stipends, by which they may be compensated for the devotion of their time to the public service, to be paid out of the national treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term of service, and under the national government, for the space of one year after its expiration. "5. _Resolved_, That each branch ought to possess the right of originating acts. "6. _Resolved_, That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties subsisting under the authority of the Union. "7. _Resolved_, That the right of suffrage in the first branch of the national legislature ought not to be according to the rule established in the Articles of Confederation, but according to some equitable ratio of representation; namely, in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes in each State. "8. _Resolved_, That the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first. "9. _Resolved_, That a national executive be instituted, to consist of a single person, to be chosen by the national legislature, for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for, to be ineligible a second time, and to be removable on impeachment and conviction of malpractice or neglect of duty; to receive a fixed stipend, by which he may be compensated for the devotion of his time to the public service, to be paid out of the national treasury. "10. _Resolved_, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed unless by two thirds of each branch of the national legislature. "11. _Resolved_, That a national judiciary be established, to consist of one supreme tribunal, the judges of which shall be appointed by the second branch of the national legislature, to hold their offices during good behavior, and to receive punctually, at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. "12. _Resolved_, That the national legislature be empowered to appoint inferior tribunals. "13. _Resolved_, That the jurisdiction of the national judiciary shall extend to all cases which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony. "14. _Resolved_, That provision ought to be made for the admission of States lawfully arising without the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole. "15. _Resolved_, That provision ought to be made for the continuance of Congress, and their authorities and privileges, until a given day after the reform of the Articles of Union shall be adopted, and for the completion of all their engagements. "16. _Resolved_, That a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States. "17. _Resolved_, That provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary. "18. _Resolved_, That the legislative, executive, and judiciary powers within the several States ought to be bound by oath to support the Articles of Union. "19. _Resolved_, That the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon." CHAPTER V. ISSUE BETWEEN THE VIRGINIA AND THE NEW JERSEY PLANS.--HAMILTON'S PROPOSITIONS.--MADISON'S VIEW OF THE NEW JERSEY PLAN. The nature of the plan of government thus proposed--called generally in the proceedings of the Convention the Virginia plan--may be perceived from the descriptions that have now been given of the design and scope of its principal features, and of the circumstances out of which they arose. It purported to be a supreme and a national government; and we are now to inquire in what sense and to what extent it was so. Its powers, as we have seen, were to be distributed among the three departments of a legislative, an executive, and a judiciary. Its legislative body was to consist of two branches, one of which was to be chosen directly by the people of the States, the other by the State legislatures; but in both, the people of the States were to be represented in proportion to their numbers. Its legislative powers were to embrace certain objects, to which the legislative powers of the separate States might be incompetent, or where their exercise might be injurious to the national interests;[51] and it was moreover to have a certain restraining authority over the legislation of the States. This plan necessarily supposed that the residue of the sovereignty and legislative power of the States would remain in them after these objects had been provided for; and it therefore contemplated a system of government, in which the individual citizen might be acted upon by two separate and distinct legislative authorities. But by providing that the legislative power of the national government should be derived from the people inhabiting the several States, and by creating an executive and a judiciary with an authority commensurate with that of the legislature, it sought to make, and did theoretically make, the national government, in its proper sphere, supreme over the governments of the States. With respect to the element of stability, as depending on the length of the tenure of office, this system was far in advance of any of the republican governments then existing in America; for it contemplated that the members of one branch of the legislature should be elected for three, and those of the other branch, and the executive, for seven years. If we compare it with the Confederation, which it was designed to supersede, we find greatly enlarged powers, somewhat vaguely defined; the addition of distinct and regular departments, accurately traced; and a totally different basis for the authority and origin of the government itself. Such was the nature of the plan of government proposed by a majority of the States in Convention, for the consideration of all. It had to encounter, in the first place, the want of an express authority in the Convention to propose any change in the fundamental principle of the government. The long existence of the distinctions between the different States, the settled habit of the people of the States to act only in their separate capacities, their adherence to State interests, and their strong prejudices against all external power, had prevented them from contemplating a government founded on the principle of a national unity among the populations of their different communities. Hence, it is not surprising that men, who came to the Convention without express powers which they could consider as authority for the introduction of so novel a principle, should have been unwilling to agree to the formation of a government, that was to involve the surrender of a large portion of the sovereignty of each State. They felt a real apprehension lest their separate States should be lost in the comprehensive national power which seemed to be foreshadowed by the plans at which others were aiming. It seemed to them that the consequence, the power, and even the existence, of their separate political corporations, were about to be absorbed into the nation. In the second place, the mode of reconciling the co-ordinate existence of a national and a State sovereignty had undergone no public discussion. At the same time, almost all the evils, the inconveniences, and the dangers which the country had encountered since the peace of 1783, had sprung from the impossibility of uniting the action of the States upon measures of general concern. For this reason, there were men in the Convention who at one time doubted the utility of preserving the States, and who naturally considered that the only mode in which a durable and sufficient government could be established, was to fuse all the elements of political power into a single mass. To those who had this feeling, the Virginia plan was as little acceptable as it was, for the opposite reason, to others. It was, however, from the party opposed to any departure from the principle of the Confederation, that the first and the chief opposition came. The delegations of Connecticut, New York (with the exception of Hamilton), New Jersey, and Delaware, and one prominent member from Maryland,--Luther Martin,--preferred to add a few new powers to the existing system, rather than to substitute a national government. They were determined not to surrender the present equality of suffrage in Congress; and accordingly the members from the State of New Jersey brought forward a plan of a purely "federal" character.[52] This plan proposed that the Articles of Confederation should be so revised and enlarged as to give to Congress certain additional powers, including a power to levy duties for purposes of revenue and the regulation of commerce. But it left the constitution of Congress as it was under the Confederation, and left also the old mode of discharging the national expenses, by means of requisitions on the States, changing only the rule of proportion from the basis of real property to that of free population. It contemplated an executive, to be elected by Congress, and a supreme judiciary to be appointed by the executive; leaving to the judiciaries of the States original cognizance of all cases arising under the laws of the Union, and confining the national judiciary to an appellate jurisdiction, except in the cases of impeachments of national officers. It proposed to secure obedience to the acts and regulations of Congress, by making them the supreme law of the States, and by authorizing the executive to employ the power of the confederated States against any State or body of men who might oppose or prevent their being carried into execution. The mover of this system[53] founded his opposition to the plan framed by the committee of the whole chiefly upon the want of power in the Convention to propose a change in the principle of the existing government. He argued, with much acuteness, that there was either a present confederacy of the States, or there was not; that if there was, it was one founded on the equal sovereignties of the States, and that it could be changed only by the consent of all; that as some of the States would not consent to the change proposed, it was necessary to adhere to the system of representation by States; and that a system of representation of the people of the States was inconsistent with the preservation of the State sovereignties. The answer made to this objection was, that although the States, in appointing their delegates to the Convention, had given them no express authority to change the principle of the existing constitution, yet that the Convention had been assembled at a great crisis in the affairs of the Union, as an experiment, to remedy the evils under which the country had long suffered from the defects of its general government; that whatever was necessary to the safety of the republic must, under such circumstances, be considered as within the implied powers of the Convention, especially as it was proposed to do nothing more than to recommend the changes which might be found necessary; and that although all might not assent to the changes that would be proposed, the dissentient States could not require the others to remain under a system that had completely failed, when they could form a new confederacy upon wiser and better principles.[54] It was at this point that Hamilton interposed, with the suggestion of views and opinions that have sometimes subjected him, unjustly, to the charge of anti-republican and monarchical tendencies and designs. These views and opinions should be carefully considered by the reader, not only in justice to this great statesman, but because they had much influence, in an indirect manner, in producing the form and tone which the Constitution finally received. It should be recollected, in making this examination, that, so far as there was at this time a distinct issue before the Convention, it was presented by the New Jersey plan of a system that would leave the sovereignties of the States almost wholly undiminished, on the one hand, and on the other by the Virginia plan of a partial but as yet undefined surrender of powers to a general government. The construction of this proposed government, and the powers that it ought to possess, were the points which Hamilton now dealt with, in the first address which he made to the committee. He has left it on record, that the views which he announced on this occasion were rested upon the three following positions:--1. That the political principles of the people of this country would endure nothing but a republican government. 2. That, in the actual situation of the country, it was of itself right and proper that the republican theory should have a full and fair trial. 3. That to such a trial it was essential that the government should be so constructed as to give it all the energy and stability reconcilable with the principles of that republican theory.[55] The opinions advanced by Hamilton at the stage of the proceedings which we are now examining must always be considered with reference to the principles which guided him, in order that a right estimate may be formed of their influence on the final result of the issue then pending. After disposing of the objection that the Convention had no power to propose a plan of government differing from the principle of the Confederation, he proceeded to say, that there were three lines of conduct before them: first, to make a league offensive and defensive between the States, treaties of commerce, and an apportionment of the public debt; secondly, to amend the present Confederation by adding such powers as the public mind seemed ready to grant; thirdly, to form a new government, which should pervade the whole, with decisive powers and a complete sovereignty. The practicability of the last course, and the mode in which the object should be accomplished, were the important and the only real questions before them. But the solution of those questions involved an inquiry into the principles of civil obedience, which are the great and essential supports of all government. The first of these principles, he said, is an active and constant interest in the support of a government. This principle did not then exist in the States, in favor of the general government. They constantly pursued their own particular interests, which were adverse to those of the whole. The second principle is a conviction of the utility and necessity of a government. As the general government might be dissolved and yet the order of society would continue,--so that many of the purposes of government would still be attainable, to a considerable degree, within the States themselves,--a conviction of the utility or the necessity of a general government could not at that time be considered as an active principle among the people of the States. The third principle is an habitual sense of obligation; and here the whole force of the tie was on the side of State government. Its sovereignty was immediately before the eyes of the people; its protection they immediately enjoyed; by its hand, private justice was administered. In the existing state of things, the central government was known only by its unwelcome demands of money or service. The fourth principle on which government must rely is force; by which he meant both the coercion of laws and the coercion of arms. But as to the general government, the coercion of laws did not exist; and to employ the force of arms on the States would amount to a war between the parties to the confederacy. The fifth principle was influence; by which he did not mean corruption, but a dispensation of those regular honors and just emoluments which produce an attachment to government. Almost the whole weight of these was then on the side of the States, and must remain so in any mere confederacy, rendering it in its very nature feeble and precarious. The lessons afforded by experience led to the evident conclusion that all federal governments were weak and distracted. They were so, because the strong principles which he had enumerated operated on the side of the constituent members of the confederacy, and against the central authority. In order, therefore, to establish a general and national government, with any hope of its duration, they must avail themselves of these principles. They must interest the wants of men in its support; they must make it useful and necessary; and they must give it the means of coercion. For these purposes, it would be necessary to make it completely sovereign. The New Jersey plan certainly would not produce this effect. It merely granted the regulation of trade and a more effectual collection of the revenue, and some partial duties, which, at five or ten per cent, would perhaps only amount to a fund to discharge the debt of the corporation. But there were a variety of objects which must necessarily engage the attention of a national government. It would have to protect our rights against Canada on the north, against Spain on the south, and the western frontier against the savages. It would have to adopt necessary plans for the settlement of the frontiers, and to institute the mode in which settlements and good governments were to be made. According to the New Jersey plan, the expense of supporting and regulating these important matters could only be defrayed by requisitions. This mode had already proved, and would always be found, ineffectual. The national revenue must be drawn from commerce,--from imposts, taxes on specific articles, and even from exports, which, notwithstanding the common opinion, he held to be fit objects of moderate taxation. The radical objections to the New Jersey plan he held to be its equality of suffrage as between the States; its incapacity to raise forces or to levy taxes; and the organization of Congress, which it proposed to leave unchanged. On the other hand, the great extent of the country to be governed, and the difficulty of drawing a suitable representation from such distances, led him to regard the Virginia plan with doubt and hesitation. At the same time, he declared that the system must be a representative and republican government. But representation alone, without the element of a permanent tenure of office in some part of the system, would not, as he believed, answer the purpose. For, as society naturally falls into the political divisions of the few and the many, or the majority and the minority, some part of every good representative government must be so constituted as to furnish a check to the mere democratic element. The Virginia plan, which proposed that both branches of the national legislature should be chosen by the people of the States, and that the executive should be appointed by the legislature, presented a democratic Assembly to be checked by a democratic Senate, and both of them by a democratic chief magistrate. To give a Senate or an executive thus chosen an official term a few years longer than that of the members of the Assembly, would not be sufficient to remove them from the violence and turbulence of the popular passions. For these reasons, they must go as far, in order to attain stability and permanency, as republican principles would admit. He would therefore have the Senate and the executive hold their offices during good behavior. Such a system would be strictly republican, so long as these offices remained elective and the incumbents were subject to impeachment. The term _monarchy_ could not apply to such a system, for it marks neither the degree nor the duration of power. And in order to obviate the danger of tumults attending the election of an executive who should hold his office during good behavior, he proposed that the election should be made by a body of electors, to be chosen by the people, or by the legislatures of the States. The Assembly he proposed to have chosen by the people of the States for three years. The legislative _powers_ of the general government he desired to have extended to all subjects; at the same time, he did not contemplate the total abolition of the State governments, but considered them essential, both as subordinate agents of the general government, and as the administrators of private justice among their own citizens.[56] His conclusions were, first, that it was impossible to secure the Union by any modification of a federal government; secondly, that a league, offensive and defensive, was full of certain evils and greater dangers; thirdly, that to establish a general government would be very difficult, if not impracticable, and liable to various objections. What then was to be done? He answered, that they must balance the inconveniences and the dangers, and choose that system which seemed to have the fewest objections. The plan which Hamilton then read to the Convention, the principal features of which have thus been stated, was designed to explain his views, but was not intended to be offered as a substitute for either of the two others then under consideration. The issue accordingly remained unchanged; and that issue lay between the Virginia and the New Jersey plans, or between a system of equal representation by States, and a system of proportionate representation of the people of the States. Besides this radical difference, the Virginia plan contemplated two houses, while the New Jersey plan proposed to retain the existing system of a single body. But in order that a sound judgment may be formed of the correctness of Hamilton's opinions, and of the useful influence which they exerted, it must be remembered that there was an inconsistency in the Virginia plan, which he was then aiming to exhibit. That plan was a purely national system; it drew both branches of the national legislature from the people of the States, in proportion to their numbers, and merely interposed the legislatures of the States as the electors of so many senators as the State might be entitled to have according to the ratio of representation. Its inconsistency lay in the fact, that, while it would have created a government in which the proportionate principle of representation would have obtained in both houses, making a purely national government, in which the States, as equal political corporations, could have exercised no direct control over its legislation, it left the separate political sovereignties of the States almost wholly unimpaired, taking from them jurisdiction over such subjects only as seemed to require national legislation. The operation of such a system must necessarily have involved perpetual conflicts between national and State power; for the States, possessed of a large part of their original sovereignties, and yet unable to exert an equal control in either branch of Congress, would have been constantly tempted and obliged to exert the indirect power of their separate legislation against the direct and democratic force of a majority of the people of the United States. To such a system, the objection urged by Hamilton, that it presented a democratic House checked by a democratic Senate, was strikingly applicable. This objection, it is true, was not presented by him as a reason for admitting the States to a direct and equal representation in the government; he employed it to enforce the expediency of giving to the Senate a different basis from that of the House, and one farther removed from popular influences. But when, at a subsequent period, the first great compromise of the Constitution--that between a purely national and a purely federal system--took place by the admission of the States to an equal representation in the Senate, the force of Hamilton's reasoning was felt, and the necessity for a check as between the two houses, founded on a difference of origin, which he had so strenuously maintained, both facilitated and hastened the concession to the demands of the smaller States. At present, Hamilton's object, in the discussions which we are now considering, was to show that, if the government was to be purely national,--as was the theory of the Virginia plan, and as he undoubtedly preferred,--it must be consistent with that theory and with the situation in which its adoption would leave the country. It must introduce through the Senate a real check upon the democratic power that would act through the House, by a different mode of election and a permanent tenure of office; and in order that the States might not be in a situation to resist the measures of a government designed to be national and supreme, that government must possess complete and universal legislative power. Surely it can be no impeachment of the wisdom or the statesmanship of this great man, that, at a time when a large majority of the Convention were seeking to establish a purely national system, founded on a proportionate representation of the people of the States, he should have pointed out the inconsistencies of such a plan, and should have endeavored to bring it into a nearer conformity with the theory which so many of the members and so many of the States had determined to adopt. It seems rather to be a proof of the deep sagacity which had always marked his opinions and his conduct, that he should have foreseen the inevitable collisions between the powers of a national government thus constituted and the powers of the States. The whole experience of the past had taught him to anticipate such conflicts, and the theory of a purely national government, when applied by the arrangement now proposed, rendered it certain that these conflicts must continue and increase. That theory could only be put in practice by transferring the whole legislative powers of the people of the States to the national government. This he would have preferred; and in this, looking from the point of view at which he then stood, and considering the actual position of the subject, he was undoubtedly right.[57] For it is not to be forgotten, that after the votes which had been taken, and after the position assumed by the States opposed to anything but a federal plan, the choice seemed to lie between a purely national and a purely federal system; that the indications then were, that the Virginia plan would be adopted; and that we owe the present compound character of the Constitution, as a government partly national and partly federal, not to the mere theories proposed on either side, but to the fortunate results of a wise compromise, made necessary by the collision between the opposite purposes and desires of different classes of the States. At the time when Hamilton laid his views before the Convention, there were two parties in that body, which were coming gradually to a struggle, not yet openly avowed, between the larger and the smaller States, on the fundamental principle of the government. The principal question at stake was whether there should be any national popular representation at all. While the Virginia plan carried a popular representation into both branches of the legislature, the New Jersey plan excluded it, and confined the system to a representation of States, in a single body. The larger and more populous States adhered to the former of these two systems, because it involved the only principle upon which they believed they could form a new Union, or enter into new relations with the smaller members of the confederacy; while, on the other hand, the smaller members felt that self-preservation was for them involved in adhering to the old principle of the Confederation. Notwithstanding the defects and imperfections of the Virginia plan, it was deemed necessary by the majority of the Convention to insist upon it, until the principle of popular representation should be conceded by all, as proper to exist in some part of the government; for an admission that it was theoretically incorrect in its application to either branch of the proposed legislature would have applied equally to the other branch; and the admission that would have been involved in the acceptance of Hamilton's propositions, namely, that in a purely national system there must be a Senate permanently in office, and that the legislative powers of the States must be mainly surrendered, would have tended only to confirm the opposition and to swell the numbers of the minority. The contest went on, therefore, as it had begun, between the opposite principles of popular and State representation, until it resulted in an absolute difference, requiring mutual concessions, or an abandonment of the effort to form a Constitution. On the day following that on which Hamilton had addressed the committee, Mr. Madison entered into an elaborate examination of the plan proposed by the minority. The previous Congressional experience of this distinguished and sagacious man had well qualified him to detect the imperfections of a system calculated to perpetuate the evils under which the country had long suffered. His object now was to show that a Union founded on the principle of the Confederation, and containing no diminution of the existing powers of the States, could not accomplish even the principal objects of a general government. It would not, he observed, in the first place, prevent the States from violating, as they had all along violated, the obligations of treaties with foreign powers; for it left them as uncontrolled as they had always been. It would not restrain the States from encroaching on the federal authority, or prevent breaches of the federal articles. It would not secure that equality of privileges between the citizens of different States, and that impartial administration of justice, the want of which had threatened both the harmony and the peace of the Union. It would not secure the republican theory, which vested the right and the power of government in the majority; as the case of Massachusetts then demonstrated. It would not secure the Union against the influence of foreign powers over its members. Whatever might have been the case with ours, all former confederacies had exhibited the effects of intrigues practised upon them by other nations; and as the New Jersey plan gave to the general councils no negative on the will of the particular States, it left us exposed to the same pernicious machinations. He begged the smaller States, which had brought forward this plan, to consider in what position its adoption would leave them. They would be subject to the whole burden of maintaining their delegates in Congress. They and they alone would feel the power of coercion on which the efficacy of this plan depended, for the larger States would be too powerful for its exercise. On the other hand, if the obstinate adherence of the smaller States to an inadmissible system should prevent the adoption of any, the Union must be dissolved, and the States must remain individually independent and sovereign, or two or more new confederacies must be formed. In the first event, would the small States be more secure against the ambition and power of their larger neighbors, than they would be under a general government pervading with equal energy every part of the empire, and having an equal interest in protecting every part against every other part? In the second event, could the smaller States expect that their larger neighbors would unite with them on the principle of the present confederacy, or that they would exact less severe concessions than were proposed in the Virginia scheme? The great difficulty, he continued, lay in the affair of representation; and if that could be adjusted, all others would be surmountable. It was admitted by both of the gentlemen from New Jersey,[58] that it would not be just to allow Virginia, which was sixteen times as large as Delaware, an equal vote only. Their language was, that it would not be safe for Delaware to allow Virginia sixteen times as many votes. Their expedient was, that all the States should be thrown into one mass, and a new partition be made into thirteen equal parts. Would such a scheme be practicable? The dissimilarities in the rules of property, as well as in the manners, habits, and prejudices of the different States, amounted to a prohibition of the attempt. It had been impossible for the power of one of the most absolute princes in Europe,[59] directed by the wisdom of one of the most enlightened and patriotic ministers that any age had produced,[60] to equalize in some points only the different usages and regulations of the different provinces. But, admitting a general amalgamation and repartition of the States to be practicable, and the danger apprehended by the smaller States from a proportional representation to be real, would not their special and voluntary coalition with their neighbors be less inconvenient to the whole community and equally effectual for their own safety?[61] If New Jersey or Delaware conceived that an advantage would accrue to them from an equalization of the States, in which case they would necessarily form a junction with their neighbors, why might not this end be attained by leaving them at liberty to form such a junction whenever they pleased? And why should they wish to obtrude a like arrangement on all the States, when it was, to say the least, extremely difficult, and would be obnoxious to many of the States,--and when neither the inconvenience nor the benefit of the expedient to themselves would be lessened by confining it to themselves? The prospect of many new States to the westward was another consideration of importance. If they should come into the Union at all, they would come when they contained but few inhabitants. If they should be entitled to vote according to their proportion of inhabitants, all would be right and safe. Let them have an equal vote, and a more objectionable minority than ever might give law to the whole.[62] At the close of Mr. Madison's remarks, the committee decided, by a vote of seven States against three, one State being divided, to report the Virginia plan to the Convention. The delegation of New York (with the exception of Hamilton), and those of New Jersey and Delaware, constituted the negative votes. The vote of Maryland was divided by Luther Martin, who had constantly acted with the minority. The vote of Connecticut was given for the report, but she was not long to remain on that side of the question.[63] NOTE ON THE OPINIONS OF HAMILTON. The idea has been more or less entertained, from the time of the Convention to the present day, that Hamilton desired the establishment of a _monarchical_ government. This impression has arisen partly from the theoretical opinions on government which he undoubtedly held, and which he expressed with entire freedom in the course of the debate, of which an account has been given in the previous chapter; and partly from the nature of some of his propositions, especially that for an executive during good behavior, which has been sometimes assumed to have been the same thing as an executive for life. I believe that the imputation of a purpose on his part to bring about the establishment of any system not essentially republican in its spirit and forms, is unfounded and unjust, and that it can be shown to be so. Mr. Luther Martin, in his celebrated letter or report to the legislature of Maryland on the doings of the Federal Convention, referred to a distinct monarchical party in that body, "whose object and wish," he said, "it was to abolish and annihilate all State governments, and to bring forward one general government over this whole continent, of a monarchical nature, under certain restrictions and limitations. Those who openly avowed this sentiment," he said, "were, it is true, but few; yet it is equally true, that there was a considerable number who did not openly avow it, who were, by myself and many others of the Convention, considered as being in reality favorers of that sentiment and acting upon those principles, covertly endeavoring to carry into effect what they well knew openly and avowedly could not be accomplished." He then goes on to say, that there was a second party, who were "not for the abolition of the State governments, nor for the introduction of a monarchical government under any form; but they wished to establish such a system as could give their own States undue power and influence, in the government, over the other States." "A third party," he adds, "was what I considered _truly federal and republican_"; that is to say, it consisted of the delegations from Connecticut, New York, New Jersey, Delaware, and in part from Maryland, and of some members from other States, who were in favor of a federal equality and the old principle of the Confederation. Upon this rule of classification, the test of republicanism was to be found in the views entertained by members upon the question whether the State governments ought to be abolished. Mr. Martin, indeed, went further, and considered those only as _truly_ republican, who were in favor of a purely federal system, and opposed to any plan of popular representation. Now it is quite clear, that the abolition of the State governments, so far as that subject was considered at all, and in the sense in which it was at any time mentioned, did not necessarily lead to _monarchy_ as a conclusion. The reduction of the State governments to local corporations and to the position of subordinate agents of the central government, was considered by some as a necessary consequence of a national representative government. This arose from the circumstance that a union of federal and national representation had nowhere been witnessed, and had not therefore been considered. I have already suggested, in the text, that, if the framers of the Constitution had gone on to the adoption of a pure system of popular and proportional representation in all the branches of the government, they must inevitably have bestowed upon that government full legislative power over all subjects; otherwise, they would have left the States, possessed of the sovereign powers of a distinct political organization, to contend with the national government by adverse legislation. The subsequent expedient of a direct and equal representation of the States in one branch of the government has in reality, to a great degree, disarmed State jealousy and opposition, by giving to the States as political bodies an equal voice in the check established by the branch in which they are represented. So that to argue, that, because there were men who saw the necessity for making a purely national or proportionate system of popular representation consistent with the situation in which it would place the country, they were therefore in favor of a monarchical system, was to argue from premises to a conclusion in no way connected. Had such a plan been carried out, it could have been, and must have been, purely republican in all its details; and it would have been liable to the reproach of being _monarchical_ in no other sense than any system which did not yield the point of a full federal equality, for which Mr. Martin and his party contended. Undoubtedly, Hamilton, as I have said, was in favor of bestowing upon the national government full _power_ to legislate upon all subjects; and to this extent, and in this sense, he proposed the abolition of the State governments. But any one who will attend carefully to the course of his argument,--imperfectly as it has been preserved,--will find that it embraces the following course of reasoning. All federal governments are weak and distracted. In order to avoid the evils incident to that form, the government of the American Union must be a national representative system. But no such system can be successful, in the actual situation of this country, unless it is endowed with all the principles and means of influence and power which are the proper supports of government. It must therefore be made completely sovereign, and State power, as a separate legislative authority, must be annihilated; otherwise, the States will be not only able, but will be constantly tempted, to exert their own authority against the authority of the nation. I have already expressed the opinion, that in this view of the subject, assuming that the States were not to be admitted to an equal representation as political corporations in any branch of the government,--as the framers and friends of the Virginia plan had thus far contended,--Hamilton was right. I believe that a constitution, in which the States had not been placed upon an equal footing in one branch of the legislative power, and under which the State sovereignties had been left as they were left by the system actually adopted, if it could have been ratified by all the States, could not have endured to our times. Yet the fortunate result of the mixed system that is embraced in the Constitution of the United States, is the product, not simply of either of the theories of a national or a federal government, but of a compromise between the two. But the charge of anti-republican tendencies or designs has been most often urged against Hamilton, on account of his theoretical opinions concerning the comparative merits of different governments, and of certain features of the plan of a constitution which he read to the Convention. With respect to these points, I shall state the results of a very careful examination which I have made of all the sources of information as to the views and opinions which he expressed or entertained. Mr. Madison has given us what he probably intended as a full report of at least the substance of Hamilton's great speech addressed to the committee of the whole, and has informed us that his report was submitted to Colonel Hamilton, who approved it, with a few verbal changes. But how meagre a report, which fills but six pages in the octavo edition of Mr. Madison's "Debates," must have been in comparison with the speech actually made by Hamilton, will occur to every reader who notices the fact that the speech occupied the entire session of one day (June 18), and who examines the brief from which he spoke, and which is still extant. (Hamilton's Works, II. 409.) He was an earnest, and I am inclined to think a fervid and rapid speaker. Certainly he spoke from a mind full of knowledge of the principles and the working of other systems of polity, and possessed of resources which have never been excelled in any statesman who has been called to aid in the work of creating a government. The topics set down in his brief exhibit a very wide range of thought, enriched by copious illustrations from the history and experience of other countries, and from the views of the most important writers on government; while the whole argument bears logically and closely upon the actual situation of our confederacy and upon the questions at issue. It is not probable, therefore, that Mr. Madison's report gives us an adequate idea of the speech, or fully exhibits its reasoning. I have collated it, sentence by sentence, with the report in Judge Yates's Minutes, and with Hamilton's own brief, and have prepared for my own use a draft containing the substance of what these three sources can give us. The results may be thus given:-- 1. That Hamilton, in stating his views of the theoretical value of different systems of government, frankly expressed the opinion that the British constitution was the best form which the world had then produced;--citing the praise bestowed upon it by Necker, that it is the only government "which unites public strength with individual security." 2. That, with equal clearness, he stated it as his opinion that none but a republican form could be attempted in this country, or would be adapted to our situation. 3. That he proposed to look to the British Constitution for nothing but those elements of stability and permanency which a republican system requires, and which may be incorporated into it without changing its characteristic principles. The only question that remains, in order to form a judgment of his purposes, is, whether there was anything in the plan of a constitution drawn up by him that is inconsistent with the spirit of republican liberty. The answer is, that there was not. There is throughout this plan a constant recognition of the authority of the people, as the source of all political power. It proposed that the members of the Assembly should be elected by the people directly, and the members of the Senate by electors chosen for the purpose by the people. The executive was in like manner to be chosen by electors, appointed by the people or by the State legislatures. So far, therefore, his plan was as strictly republican, as is that of the Constitution under which we are actually living. But he proposed that the executive and the senators should hold their offices _during good behavior_; and this has been his offence against republicanism, with those who measure the character of a system by the frequency with which it admits of rotation in office. His accusers have failed to notice that he made his executive personally responsible for official misconduct, and provided that both he and the senators should be subject to impeachment and to removal from office. This was a wide departure from the principles of the English constitution, and it constitutes a most important distinction between a republican and a monarchical system, when it is accompanied by the fact that the office of a ruler or legislator is attained, not by hereditary right, or the favor of the crown, but by the favor and choice of the people. I have thus stated the principal points to which the inquiries of the reader should be directed in investigating the opinions of this great man, because I believe it to be unjust to impute to him any other than a sincere desire for the establishment and success of republican government. That he desired a strong government, that he was little disposed to dogmatize upon abstract theories of liberty, and that he trusted more to experience than to hypothesis, may be safely assumed. But that he ardently desired the success of that republican freedom which is founded on a perfect equality of rights among citizens, exclusive of hereditary distinctions, is as certain as that he labored earnestly throughout his life for the maxims, the doctrines, and the systems which he believed most likely to secure for it a fair trial and ultimate success. (See his description of his own opinions, when writing of himself as a third person in 1792; Works, VII. 52.) That the system of government sketched by Hamilton was not received by many of those who listened to him with disapprobation on account of what has since been supposed its _monarchical_ character, we may safely assume, on the testimony of Dr. Johnson of Connecticut, one of the most moderate men in the Convention. Contrasting the New Jersey and Virginia plans, he is reported (by Yates) to have said: "It appears to me that the Jersey plan has for its principal object the preservation of the State governments. So far it is a departure from the plan of Virginia, which, although it concentrates in a distinct national government, is not totally independent of that of the States. A gentleman from New York, with boldness and decision, proposed a system totally different from both; _and although he has been praised by everybody_, he has been supported by none." (Yates's Minutes, Elliot, I. 431.) Even Luther Martin did not seem to regard the objects of what he calls the monarchical party as being any worse, or more dangerous to liberty, than the projects of those whom he represents as aiming to obtain undue power and influence for their own States, and whom at the same time he acquits of monarchical designs or a desire to abolish the State governments. The truth is, that nobody had any improper purposes, or anything at heart but the liberties and happiness of the people of America. We are not to try the speculative views of men engaged in such discussions as these by the charges or complaints elicited in the heats of conflicting opinions and interests, inflamed by a zeal too warm to admit the possibility of its own error, or to perceive the wisdom and purity of an opponent. FOOTNOTES: [51] The regulation of commerce was not, any more than other specific powers, otherwise provided for than by these general descriptions. [52] This, together with the Virginia plan, which was recommitted along with it, was referred to a second committee of the whole, June 15th. [53] William Patterson of New Jersey. [54] See the remarks of Wilson, Pinckney, and Randolph, as given in Madison, Elliot, V. 195-198. [55] See his letter of September 16, 1803, addressed to Timothy Pickering; first published in Niles's Register, November 7, 1812. [56] See the note at the end of this chapter. [57] See the note at the end of this chapter. [58] Mr. Brearly and Mr. Patterson. [59] Louis XVI. [60] Necker. [61] Mr. Patterson had said, that, if they were to depart from the principle of equal sovereignty, the only expedient that would cure the difficulty would be to throw the States into hotchpot. To say that this was impracticable, would not make it so. Let it be tried, and they would see whether Massachusetts, Pennsylvania, and Virginia would accede to it. (Madison, Elliot, V. 194.) [62] Elliot, V. 206-211. [63] Madison, Elliot, V. 212. Journal, Elliot, I. 180. This vote was taken, and the committee of the whole were discharged, on the 19th of June. CHAPTER VI. CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS.--DIVISION OF THE LEGISLATURE INTO TWO CHAMBERS.--DISAGREEMENT OF THE STATES ON THE NATURE OF REPRESENTATION IN THE TWO BRANCHES.--THREATENED DISSOLUTION OF THE UNION. We are now approaching a crisis in the action of the Convention, the history of which is full of instruction for all succeeding generations of the American people. We have witnessed the formation of a minority of the States, whose bond of connection was a common opposition to the establishment of what was regarded as a "national" government. The structure of this minority, as well as that of the majority to which they were opposed, the motives and purposes by which both were animated, and the results to which their conflicts finally led, are extremely important to be understood by the reader. The relative rank of the different States in point of population, at the time of the formation of the Constitution, was materially different from what it is at the present day. Virginia, then the first State in the Union, is now the fourth. New York, now at the head of the scale, then ranked after North Carolina and Massachusetts, which occupied the third and fourth positions in the first census, and which now occupy respectively the sixth and tenth. South Carolina, which then had a smaller population than Maryland, now has a much greater. Georgia at that time had not half so many inhabitants as New Jersey, but now has twice as many. Great inequalities existed, as they still exist, between the different members of the confederacy, not only in the actual numbers of their inhabitants, and their present wealth, but in their capacity and opportunity of growth. Virginia, with a population fourteen times as large, had a territorial extent of thirty times the size of Delaware. Pennsylvania had nearly seven times as many people as Rhode Island, and nearly forty times as much territory. The State of Georgia numbered a little more than a third as many people, but her territory was nearly twelve times as large as the territory of Connecticut. The four leading States, Virginia, Pennsylvania, North Carolina, and Massachusetts, had an obvious motive for seeking the establishment of a government founded on a proportionate representation of their respective populations. The States of South Carolina and Georgia had generally acted with them in the formation of the Virginia plan; and these six States thus constituted the majority by which the principle of what was called a "national," in distinction from a "federal" government, had been steadily pressed to the conclusions arrived at in the committee of the whole, and now embraced in its report.[64] All but two of them were certain to remain slaveholding States; but in the adoption of numbers as the basis of representative influence in the government, they all had a common interest, which led them for the present to act together.[65] At the head of the minority, or the States which desired a government of federal equality, stood the State of New York, then the fifth State in the Union. She was represented by Alexander Hamilton, Robert Yates, and John Lansing, Junior. The two latter uniformly acted together, and of course controlled the vote of the State. Hamilton's vote being thus neutralized, his influence on the action of the Convention extended no farther than the weight and importance attached to his arguments by those who listened to them. Occupying at that period nearly a middle rank between the largest and the smallest of the States with respect to population, New York had not yet grasped, or even perceived, the wonderful elements of her future imperial greatness. Her commerce was not inconsiderable; but it had hitherto been the disposition of those who ruled her counsels to retain its regulation in their own hands, and to subject it to no imposts in favor of the general interests of the Union. Most of her public men, also,[66] held it to be impracticable to establish a general government of sufficient energy to pervade every part of the United States, and to carry its appropriate benefits equally to all, without sacrificing the constitutional rights of the States to an extent that would ultimately prove to be dangerous to the liberties of their people. Their view of the subject was, that the uncontrolled powers and sovereignties of the States must be reserved; and that, consistently with the reservation of these, a mode might be devised of granting to the confederacy the moneys arising from a general system of revenue, some power of regulating commerce and enforcing the observance of treaties, and other necessary matters of less moment. This was the opinion of Yates, the Chief Justice of the State, who may be taken as a fair representative of the sentiments of a large part, if not of a majority, of its people at this time.[67] But neither he, nor any of those who concurred with him, succeeded in pointing out the mode in which the power to collect revenues, to regulate commerce, and to enforce the observance of treaties, could be conferred on the confederacy, without impairing the sovereignties of the States. It does not appear whether this class of statesmen contemplated a grant of full and unrestrained power over these subjects to a federal government, or whether they designed only a qualified grant, capable of being recalled or controlled by the parties to the confederacy, for reasons and upon occasions of which those parties were to judge. From the general course of their reasoning on the nature of a federal government, it might seem that the latter was their intention.[68] It is not difficult to understand how these gentlemen may have supposed that an irrevocable grant of powers to a general government might be dangerous to the liberties of the people of the States, because such a grant would involve a surrender of more or less of the original State sovereignties to a legislative body external to the State itself. But if they supposed that a grant of such powers could be made to a "federal" government, or a political league of the States, acting through a single body in the nature of a diet, and to be exercised when necessary by the combined military power of the whole, and yet be any less dangerous to liberty, it is difficult to appreciate their fears or to perceive the consistency of their plan. If the liberties of the people were any the less exposed under their system, than under that of a "national" government, it must have been because their system was understood by them to involve only a qualified and revocable surrender of State sovereignty. But however this may have been, there was undoubtedly a settled conviction on the part of the two delegates of New York who controlled the vote of the State in the Convention, that they had not received the necessary authority from their own State to go beyond the principle of the Confederation; that it would be impracticable to establish a general government, without impairing the State constitutions and endangering the liberties of the people; and that what they regarded as a "consolidated" government was not in the remotest degree within the contemplation of the legislature of New York when they were sent to take their seats in the Convention. The same sentiments, with far greater zeal, with intense feeling and some acrimony, were held and acted upon by Luther Martin of Maryland, a very eminent lawyer, and at that time Attorney-General of the State, who sometimes had it in his power, from the absence of his colleagues, to cast the vote of his State with the minority, and who generally divided it on all critical questions that touched the nature of the government. The State itself, with a population but a little less than that of New York, had no great reason to regard itself as peculiarly exposed to the dangers to be apprehended from combinations among the larger States to oppress the smaller; and it does not appear that these apprehensions were strongly felt by any of her representatives excepting Mr. Martin.[69] The great energy and earnestness, however, of that distinguished person, prevented a concurrence of the State with the purposes and objects of the majority. Connecticut might reasonably consider herself as one of the smaller States, and her vote was steadily given for an equality of suffrage in both branches of the national legislature, down to the time of the final division upon the Senate. The States of New Jersey and Delaware formed the other members of the minority, upon this general question. On the one side, therefore, of what would have been, but for the great inequalities among the States, almost a purely speculative question, we find a strong determination, the result of an apparent necessity, to establish a government in which the democratic majority of the whole people of the United States should be the ruling power; and in which, so far as State influence was to be felt at all, it should be felt only in proportion to the relative numbers of the people composing each separate community. It was considered by those who embraced this side of the question, that, when the great States were asked to perpetuate the system of federal equality on which the Confederation had been founded, they were asked to submit to mere injustice, on account of an imaginary danger to their smaller confederates. They held it to be manifestly wrong, that a State fourteen times as large as Delaware should have only the same number of votes in the national legislature. Whether the States were now met as parties to a subsisting confederacy, under which they might be regarded in the same light as the individuals composing the social compact; or whether they were to be looked upon as so many aggregates of individuals for whose personal rights and interests provision was to be made, as if they composed a nation already united, it was believed by the majority that no safe and durable government could be formed, if the democratic element were to be excluded. Pure democracies had undoubtedly been attended with inconveniences. But how could peace and real freedom be preserved, under the republican form, if half a million of people dwelling in one political division of the country possessed only the same suffrage in the enactment of laws as sixty thousand people dwelling in another division? Leave out of view the theory which taught that the States alone, regarded as members of an existing compact, must be considered as the parties to the new system, as they had been to the old, and it would be found that the political equality of the free citizens of the United States could be made a source of that energy and strength so much needed and as yet so little known. With it was connected the idea and the practicability of legislation that would reach and control individuals. Without it, there could be only a system of coercion of the States, whose opposition would be invited, rather than repressed, upon all occasions of importance. Abandon the necessary principle of governing by a democratic majority, said George Mason, and if the government proceeds to taxation, the States will oppose its powers.[70] On the other hand, the minority, insisting on a rigid construction of their powers, and planting themselves upon the nature of the compact already formed between the States, contended that these separate and sovereign communities had distinct governments already vested with the whole political power of their respective populations, and therefore that they could not, consistently with the truth of their situation, act as if the whole or any considerable part of that power could be transferred by the people themselves to another government. They said, that whatever power was to be conferred on a central or general government must be granted by the States, as political corporations, and that therefore the principle of the Union could not be changed, whatever addition it might be expedient to make to its authority. They said, that, even if this theory were not strictly true, the smaller States could not safely unite with the larger upon any other; and especially that they could not surrender their liberties to the keeping of a majority of the people inhabiting all the States, for such a power would inevitably destroy the State constitutions. They were willing, they said, to enlarge the powers of the federal government; willing to provide for it the means of compelling obedience to its laws; willing to hazard much for the general welfare. But they could not consent to place the very existence of their local governments, with all their capacity to protect the distinct interests of the people, and all their peculiar fitness for the administration of local concerns, at the mercy of great communities, whose policy might overshadow and whose power might destroy them. To the claim of political equality as between a citizen of the largest and a citizen of the smallest State in the Union, they opposed the doctrine, that in his own State every citizen is equal with every other, and holds such rights and liberties, and so much political power, as the State may see fit to bestow upon him; but that, when separate States enter into political relations with each other for their common benefit, it is among the States themselves that the equality must prevail, because States can only be parties to a compact upon a footing of natural equality, just as individuals are supposed to enter society with equal natural rights. This doctrine, they said, was especially necessary to be applied between States of very unequal magnitudes. If applied, it would render unnecessary the division of the legislative body into two chambers; would dispense with any but a supreme judicial tribunal; and would admit of a ratification by the States in Congress, without raising the hazardous and doubtful question of a direct resort to the people, whose power to act independently of their State governments was by some strenuously denied. These, in substance, were the principles now brought into direct collision, urged under a great variety of forms, and recurring upon the successive details of the Constitution, as its formation proceeded, and pressed with equal earnestness and equally firm convictions of duty on both sides. I confess that it does not seem to me important, if it be practicable, to decide which party was theoretically correct. A great deal of the reasoning on both sides was speculative, and it is not easy to deny some of the chief propositions which were maintained on the one side and the other. We are too apt, perhaps, to judge of the real soundness of the opinions held by opposite parties to the first compromise of the Constitution, by the subsequent history and success of the government, and by the views and feelings which we entertain of that history and that success. Whereas, in truth, if we place ourselves at the point where the framers of the Constitution stood at the time we are examining, we shall find that, with the exception of the influence due to one or two governing facts of previous history, it was theoretically as correct to contend for a purely federal as for a purely national government. Almost everything depends upon the object towards which they were to reason; and therefore the premises were in a considerable degree open to an arbitrary choice. If the object was to establish a government, against the exercise of whose legitimate powers State legislation could not possibly be exerted, some higher authority than that of the State governments must be resorted to; and the reasoning which tended to prove the existence of that authority and the practicability of invoking it, and the danger of any other kind of government, comes logically and consistently in support of the great purpose to be attained. If, however, from an honest fear for the safety of local interests, the purpose was to have a government that would not seriously diminish the powers of the States, but would leave them with always unimpaired sovereignties, capable of resisting the measures of the central power, then the States were certainly competent and sufficient to the formation of such a system, and the reasoning which placed them in the light of parties to a social compact was theoretically true. On the one side, it was believed that a government formed by the States upon the principle of federal equality would be destructive of the powers of the general government, whatever those powers might be. On the other side, it was considered that the principle of governing by a democratic majority of the people of all the States would make those powers too formidable for the safety of the State constitutions. According to the force we may assign to the one or the other tendency, the reasoning on either side will appear to us to be almost equally correct. But there were, as I have said, one or two facts of previous history, which gave the advocates of a national government a great advantage over their opponents, and went far towards settling the real merits of the two opposite systems. A federal system had been tried, and had broken down in complete prostration of all the appropriate energies and functions of government. The advocates of the opposite system, therefore, could point to all the failures and all the defects of the Confederation, in proof of the reasoning which they employed. In addition to this, they could adduce the same general tendency in all former confederacies of the same nature. But no experiment had been made by the people of the American States, of a government founded expressly on the national character and relations of their inhabitants; and if the merits of such a government were now only to be maintained by theoretical reasoning, on the other hand it had not suffered the injury of acknowledged defeat. The difficulty in the way of its adoption was its supposed tendency to absorb, and perhaps to annihilate, the sovereignties of the States. The advocates of the Virginia plan were called upon to show how the general sovereignty and jurisdiction which they proposed to give to their system could consist with a considerable, though subordinate, jurisdiction in the States. One of its moderate and candid opponents[71] declared that, if this could be shown, the objections to it ought to be surrendered; but if not, he thought that those objections must have their full force. But, from the very nature of the case, that which had not been demonstrated by experience could rest only upon opinion; and while the Virginia system made no other provision for State defence against encroachments of the general government than such as might be found in the election by the State legislatures of the national Senate, the apprehensions of the smaller States could not be satisfied, however admirable the theory, and however able might be the reasoning by which it was supported. Let the reader, then, as he pursues the history of this conflict between the opposing interests of the two classes of States, and observes how strenuously the different theories were maintained, until victory became impossible on either side, note the danger of adhering too firmly to mere theoretical principles, in matters of government. He will see the impressive spectacle of States assembled for the formation of some system capable of answering the exigencies of their situation; he will see how rapidly a difference of local interests developed the most opposite theories, and how profoundly those theories were discussed; and he will see this conflict carried on for days, and even for weeks, with all the sincerity that interest lends to conviction, and all the tenacity that conviction can produce, until at last the whole discussion leads to the probable failure of the purpose for which the assembly had been instituted. He will then see an amalgamation of the two systems, which in their integrity were irreconcilable, and will witness the first introduction of that mode of adjusting opposite interests and conflicting theories of government which lies at the basis of the Constitution of the United States, and which alone can furnish a safe foundation on which to unite the destinies and wants of separate communities possessed of distinct political organizations and rights. The Convention had received the report of the committee of the whole on the 19th of June. From that day until the 5th of July the struggle was continued, commencing with the proposition which affirmed the division of the legislative department of the government into two branches. Although such an arrangement did not necessarily involve the principle of national and popular representation, it was opposed as unnecessary by those who desired to retain the system of representation by States, and who therefore intended to preserve the existing organization of the Congress. Still, the needful harmony and completeness of the scheme, according to the genius of the Anglo-American liberty, required this division of the legislature. Doubtless a single council or chamber can promulgate decrees and enact laws; but it had never been the habit of the people of America, as it never had been the habit of their ancestors for at least a period of somewhat more than five centuries, to regard a single chamber as favorable to liberty, or to wise legislation.[72] The separation into two chambers of the lords spiritual and temporal, and the commons, in the English constitution, does not seem to have originated in a difference of personal rank, so much as in their position as separate estates of the realm. All the orders might have voted promiscuously in one house, and just as effectually signified the assent or dissent of Parliament to any measure proposed.[73] But the practice of making the assent of Parliament to consist in the concurrent and separate action of the two estates, though difficult to be traced to its origin in any distinct purpose or cause, became confirmed by the growing importance of the commons, by their jealousy and vigilance, and by the controlling position which they finally assumed. As Parliament gradually proceeded to its present constitution, and the separate rights and privileges of the two houses became established, it was found that the practice of discussing a measure in two assemblies, composed of different persons, holding their seats by a different tenure and representing different orders of the state, was in the highest degree conducive to the security of the subject, and to sound legislation.[74] So fully was the conviction of the practical convenience and utility of two chambers established in the Anglican mind, that, when representative government came to be established in the British North American Colonies, although the original reason for the division ceased to be applicable, it was retained for its incidental advantages. In none of these Colonies was there any difference of social condition, or of political privilege or power, recognized in the system of representation; and as there were, therefore, no separate estates or orders among the people, requiring to be protected against each other's encroachments, or holding different relations to the crown, we cannot attribute the adherence to the system of two chambers, on the part of those who solicited and received the privilege of establishing these colonial governments, to anything but their belief in its practical advantages for the purposes of legislation. Still less can we suppose, that after the Revolution, and when there no longer existed any such motive as might have influenced the crown in modelling the colonial after the imperial institutions, to a certain extent, the people of these States should have perpetuated in their constitutions the principle of a division of the legislature into two chambers, for any other purpose than to secure the practical benefits which they and their ancestors had always found to flow from it. Only three exceptions to this practice existed in America, at the time of the formation of the Constitution. They were the legislatures of the States of Pennsylvania and Georgia, and the Congress of the Confederation. But the Congress being in fact only an assembly of deputies from confederated States, the means scarcely existed for the application of the principle so familiar in the legislatures of most of the States themselves. As a new government was now to be formed, whose theoretical and actual powers were to be essentially different, an opportunity was afforded for the ancient and favorite construction of the legislative department. The proposal was resisted, not because it was doubted that, in a government of direct legislative authority, in which the people are themselves to be represented, the system of two chambers is practically the best, but because those who opposed its introduction denied the propriety of attempting to establish a government of that kind. The States of New York, New Jersey, and Delaware, therefore, recorded their votes against such a division of the legislature, and the vote of Maryland was divided upon the question.[75] The reader will observe, however, that, in its present aspect, there was a chasm in the Virginia plan, which to some extent justifies the opposition of the minority to the system of two legislative chambers. According to that plan, the people of the States were to be represented in both chambers in proportion to their numbers. But as there were no distinct orders among the people to furnish a different basis for the two houses, the system must either be a mere duplicate representation of the whole people, as it is in the State constitutions generally, or some artificial basis must be provided for one house, to distinguish it from the other, and to furnish a check as between the two. In a republican government, and in a state of society where property is not entailed and distinctions of personal rank cannot exist, such a basis is not easily found; and if found, is not likely to be stable and effectual. The happy expedient of selecting the States as the basis of representation in the Senate, which had not yet been agreed upon, and which was resorted to as an adjustment of a serious conflict between two opposite principles of government, has furnished a really different foundation for the two branches, as distinct as the separate representation of the different orders in the British constitution. It has thus secured the incidental advantages of two chambers, without resorting to those fluctuating or arbitrary distinctions among the people, which can alone afford, in such a country as ours, even an ostensible difference of origin for legislative bodies. The same struggle which had been maintained upon this question was continued through all the votes taken upon the mode of electing the members of the two branches, and upon their tenure of office. It is not necessary here to rehearse the details of these proceedings; the result was, that the members of the first branch of the legislature were to be chosen by the people of the States for a period of two years, and to be twenty-five years of age, while the members of the second or senatorial branch were to be chosen by the State legislatures for a period of six years, and to be thirty years of age. The States of Pennsylvania and Virginia voted against the election of senators by the legislatures of the States, because it was still uncertain whether an equality or a ratio of representation would finally prevail in that branch, and the election by the legislatures was considered to have a tendency to the adoption of an equality.[76] At length, the sixth resolution, which defined the powers of Congress, and the seventh and eighth, which involved the fundamental point of the suffrage in the two branches, were reached.[77] The subject of the powers of Congress was postponed, and the question was stated on the rule of suffrage for the first branch, which the resolution declared ought to be according to an equitable ratio. In the great debate which ensued, Madison, Hamilton, Gorham, Reed, and Williamson combated the objections of the smaller States, while Luther Martin, with his accustomed warmth, resisted the introduction of the new principle. The discussion involved on both sides a repetition of the arguments previously employed; but some of the views presented are of great importance, especially those taken by Madison and Hamilton, of the situation in which the smaller States must be placed, if a constitution should not be formed and adopted containing a just distribution of political power among the whole people of the country, creating thereby a government of sufficient energy to protect each and all of the States against foreign powers, against the influence of the larger members of the confederacy, and against the dangers to be apprehended from their own governments. Let each State, said Mr. Madison, depend on itself for its security, in a position of independence of the Union, and let apprehensions arise of dangers from distant powers, or from neighboring States, and from their present languishing condition, all the States, large as well as small, would be transformed into vigorous and high-toned governments, with an energy fatal to liberty and peace. The weakness and jealousy of the smaller States would quickly introduce some regular military force, against sudden danger from their powerful neighbors; the example would be followed, would soon become universal, and the means of defence against external danger would become the instruments of tyranny at home. These consequences were to be apprehended, whether the States should run into a total separation from each other, or into partial confederacies. Either event would be truly deplorable, and those who might be accessory to either could never be forgiven by their country, or by themselves.[78] To these consequences of a dissolution of the Union, Hamilton added another, equally serious. Alliances, he declared, must be formed with different rival and hostile nations of Europe, who would seek to make us parties to their own quarrels. The representatives of foreign nations having American dominions betrayed the utmost anxiety about the result of that meeting of the States. It had been said that respectability in the eyes of Europe was not the object at which we were to aim; that the proper design of republican government was domestic tranquillity and happiness. This was an ideal distinction. No government could give us tranquillity and happiness at home, which did not possess sufficient stability and strength to make us respectable abroad. This was the critical moment for forming such a government. We should run every risk in trusting to future amendments. As yet, we retain the habits of union. We are weak, and sensible of our weakness. Henceforward the motives would become feeble and the difficulties greater. It was a miracle that they were here, exercising their tranquil and free deliberations on the subject. It would be madness to trust to future miracles.[79] But these warnings were of no avail against the settled determination of those who saw greater dangers in the establishment of a government which was in their view to approximate the condition of the States to that of counties in a single State. The principle of a proportionate representation of the populations of the State, was just and necessary; but it was now leading to the extreme of an entire separation, because it was carried to the extreme of a full application to every part of the government. In like manner, there was an equally urgent necessity for some provision which should receive the States in their political capacity, and on a footing of equality, as constituent parts of the system. But this principle was now forcing the majority into the alternative of a partial confederacy, or of none at all, because it was insisted that the government must be exclusively founded on it. Neither party was ready to adopt the suggestion that the two ideas, instead of being opposed, ought to be combined, so that in one branch the people should be represented, and in the other the States.[80] The consequence was that the proportionate rule of suffrage for the first branch was established by a majority of one State only;[81] and the Convention passed on, with a fixed and formidable minority wholly dissatisfied, to consider what rule should be applied to the Senate. The objects of a Senate were readily apprehended. They were, in the first place, that there might be a second chamber, with a concurrent authority in the enactment of laws; secondly, that a greater degree of stability and wisdom might reside in its deliberations, than would be likely to be found in the other branch of the legislative department; and, thirdly, that there might be some diversity of interest between the two bodies. These objects were to be attained by providing for the Senate a distinct and separate basis of its own. If such a basis is found among the individuals composing a political society, it must consist of the distinctions among them either in respect to social rank or in respect to property. With regard to the first, the absence of all distinctions of rank rendered it impossible to assimilate the Senate of the United States to the aristocratic bodies which were found in other governments possessed of two legislative chambers. Property, as held by individuals, might have been assumed as the basis of a distinct representation, if the laws and customs of the different States had generally admitted of its possession in large masses through successive generations. But they did not admit of it. The general distribution and diffusion of property was the rule; its lineal transmission from the father to the eldest son was the exception. Had the Senate been founded upon property, it must have been upon the ratio of wealth as between the different States, in the same manner in which the senatorial representation of counties was arranged under the first constitution of Massachusetts.[82] It was very soon settled and conceded, that the States, as political societies, must be preserved; and if they were to be represented as corporations, or as so many separate aggregates of individuals, they must be received into the representation on an equal footing, or according to their relative weight. An inquiry into their relative wealth must have involved the question, as to five of them at least, whether their slaves were to be counted as part of that wealth. No satisfactory decision of this naked question could have been had; and it is to be considered among the most fortunate of the circumstances attending the formation of the Constitution, that this question was not solved, with a view of founding the Senate upon the relative wealth of the States. Two courses only remained. The basis of representation in the Senate must either be found in the numbers of people inhabiting the States, creating an unequal representation, or the people of each State, regarded as one, and as equal with the people of every other State, must be represented by the same number of voices and votes. The former was the plan insisted on by the friends and advocates of the "national" system; the latter was the great object on which the minority now rallied all their strength. The debate was not long protracted; but it was marked with an energy, a firmness, and a warmth, on both sides, which reveal the nature of the peril then hanging over the unformed institutions, whose existence now blesses the people of America. As the delegations of the States approached the decision of this critical question, the result of a separation became apparent, and with it phantoms of coming dissension and strife, of foreign alliances and adverse combinations, loomed in the future. Reason and argument became powerless to persuade. Patriotism, for a moment, lost its sway over men who would at any time have died for their common country. Not mutterings only, but threats even were heard of an appeal to some foreign ally, by the smaller States, if the larger ones should dare to dissolve the confederacy by insisting on an unjust scheme of government. Ellsworth, of Connecticut, in behalf of the minority, offered to accept the proportional representation for the first branch, if the equality of the States were admitted in the second, thus making the government partly national and partly federal. It would be vain, he said, to attempt any other than this middle ground. Massachusetts was the only Eastern State that would listen to a proposition for excluding the States, as equal political societies, from an equal voice in both branches. The others would risk every consequence, rather than part with so dear a right. An attempt to deprive them of it was at once cutting the body of America in two. At this moment, foreseeing the probability of an equal division of the States represented in the Convention, one of the New Jersey members[83] proposed that the President should write to the executive of New Hampshire, to request the attendance of the deputies who had been chosen to represent that State, and who had not yet taken seats. Two States only voted for this motion,[84] and the discussion proceeded. Madison, Wilson, and King, with great earnestness, resisted the compromise proposed by Ellsworth, and when the vote was finally taken, five States were found to be in favor of an equal representation in the Senate, five were opposed to it, and the vote of Georgia was divided.[85] Thus was this assembly of great and patriotic men brought finally to a stand, by the singular urgency with which opposite theories, springing from local interests and objects, were sought to be pressed into a constitution of government, that was to be accepted by communities widely differing in extent, in numbers, and in wealth, and in all that constitutes political power, and which were at the same time to remain distinct and separate States. As we look back to the possibility of a failure to create a constitution, and try to divest ourselves of the identity which the success of that experiment has given to our national life, the imagination wanders over a dreary waste of seventy years, which it can only fill with strange images of desolation. That the administration of Washington should never have existed; that Marshall should never have adjudicated, or Jackson conquered; that the arts, the commerce, the letters of America should not have taken the place which they hold in the affairs of the world; that instead of this great Union of prosperous and powerful republics, made one prosperous and powerful nation, history should have had nothing to show and nothing to record but border warfare and the conflicts of worn-out communities, the sport of the old clashing policies of Europe; that self-government should have become one of the exploded delusions with which mankind have successively deceived themselves, and republican institutions have been made only another name for anarchy and social disorder;--all these things seem at once inconceivable and yet probable,--at once the fearful conjurings of fancy, and the inevitable deductions of reason. We know not what combinations, what efforts, might have followed the separation of that convention of American statesmen, without having accomplished the work for which they had been assembled. We do know, that, if _they_ could not have succeeded in framing and agreeing upon a system of government capable of commending itself to the free choice of the people of their respective States, no other body of men in this country could have done it. We know that the Confederation was virtually at an end; that its power was exhausted, although it still held the nominal seat of authority. The Union must therefore have been dissolved into its component parts, but for the wisdom and conciliation of those who, in their original earnestness to secure a perfect theory, had thus encountered an insuperable obstacle and brought about a great hazard. I have elsewhere said that these men were capable of the highest of the moral virtues,--that their magnanimity was as great as their intellectual acuteness and strength. Let us turn to the proof on which rests their title to this distinction. FOOTNOTES: [64] Rhode Island was never represented in the Convention, and the delegation of New Hampshire had not yet attended. [65] In all these statements of the relative rank of the States, I compare the census of 1790 and that of 1850. [66] The two great exceptions of course were Hamilton and Jay. [67] See the candid and moderate letter of Messrs. Yates and Lansing to the legislature of the State, giving their reasons for not signing the Constitution. (Elliot, I. 480.) [68] In the New Jersey plan, which the New York gentlemen (Hamilton excepted) supported, although the power to levy duties and the regulation of commerce were to be added to the existing powers of the old Congress, yet as these powers were to be exerted against the States, in the last resort, by force, it would only have been necessary for a State to place itself in an attitude of resistance, by a public act, and then the grant of power might have been considered to be revoked by the very act of resisting its execution. [69] Three of the delegates of the State, James McHenry, Daniel of St. Thomas Jenifer, and Daniel Carroll, signed the Constitution. [70] Yates's Minutes, Elliot, I. 433. [71] Dr. Johnson of Connecticut. [72] Mr. Hallam has traced the present constitution of Parliament to the sanction of a statute in the 15th of Edward II. (1322), which he says recognizes it as already standing upon a custom of some length of time. Const. History, I. 5. [73] Mr. Hallam does not concur in what he says has been a prevailing opinion, that Parliament was not divided into two houses at the first admission of the commons. That they did not sit in separate chambers proves nothing; for one body may have sat at the end of Westminster Hall, and the other at the opposite end. But he thinks that they were never intermingled in voting; and, in proof of this, he adduces the fact that their early grants to the King were separate, and imply distinct grantors, who did not intermeddle with each others' proceedings. He further shows, that in the 11th Edward I. the commons sat in one place and the lords in another; and that in the 8th Edward II. the commons presented a separate petition or complaint to the King, and the same thing occurred in 1 Edward III. He infers from the rolls of Parliament, that the houses were divided as they are at present in the 8th, 9th and 19th Edward II. (See the very valuable Chapter VIII., on the English Constitution, in Hallam's Middle Ages, III. 342.) [74] See on this subject Lieber on Civil Liberty, I. 209, edit. 1853. [75] Connecticut upon this question voted with the majority. [76] Madison, Elliot, V. 240. [77] June 28. [78] Madison, Elliot, V. 256. [79] Madison, Elliot, V. 258. [80] It was made at this stage by Dr. Johnson. [81] The States opposed to an equality of suffrage in the first branch were Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia, 6; those in favor of it were Connecticut, New York, New Jersey, and Delaware. The vote of Maryland was divided. [82] Mr. Baldwin of Georgia suggested this model. [83] David Brearly. [84] New York and New Jersey. [85] The question was put upon Ellsworth's motion to allow the States an equal representation in the Senate. The vote stood, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_. 5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5; Georgia divided. The person who divided the vote of Georgia, and thus prevented a decision which must have resulted in a disruption of the Convention, was Abraham Baldwin. We have no account of the motives with which he cast this vote, except an obscure suggestion by Luther Martin, which is not intelligible. (Elliot, I. 356.) Baldwin was a very wise and a very able man. He was not in favor of Ellsworth's proposition, but he probably saw the consequences of forcing the minority States to the alternatives of receiving what they regarded as an unjust and unsafe system, or of quitting the Union. By dividing the vote of his State he prevented this issue, although he also made it probable that the Convention must be dissolved without the adoption of any plan whatever. CHAPTER VII. FIRST GRAND COMPROMISES OF THE CONSTITUTION.--POPULATION OF THE STATES ADOPTED AS THE BASIS OF REPRESENTATION IN THE HOUSE.--RULE FOR COMPUTING THE SLAVES.--EQUALITY OF REPRESENTATION OF THE STATES ADOPTED FOR THE SENATE. As the States were now exactly divided on the question whether there should be an equality of votes in the second branch of the legislature, some compromise seemed to be necessary, or the effort to make a constitution must be abandoned. A conversation as to what was expedient to be done, resulted in the appointment of a committee of one member from each State, to devise and report some mode of adjusting the whole system of representation.[86] According to the Virginia plan, as it then stood before the Convention, the right of suffrage in both branches was to be upon some equitable ratio, in proportion to the whole number of free inhabitants in each State, to which three fifths of all other persons, except Indians not paying taxes, were to be added. Nothing had been done, to fix the ratio of representation; and although the principle of popular representation had been affirmed by a majority of the Convention as to the first branch, it had been rejected as to the second by an equally divided vote of the States. The whole subject, therefore, was now sent to a committee of compromise, who held it under consideration for three days.[87] The same struggle which had been carried on in the Convention was renewed in the committee; the one side contending for an inequality of suffrage in both branches, the other for an equality in both. Dr. Franklin at length gave way, and proposed that the representation in the first branch should be according to a fixed ratio of the inhabitants of each State, computed according to the rule already agreed upon, and that in the second branch each State should have an equal vote. The members of the larger States reluctantly acquiesced in this arrangement; the members of the smaller States, with one or two exceptions, considered their point gained. When the report came to be made, it was found that the committee had not only agreed upon this as a compromise, but that they had made a distinction of some importance between the powers of the two branches, by confining to the first branch the power of originating all bills for raising or appropriating money and for fixing the salaries of officers of the government, and by providing that such bills should not be altered or amended in the second branch. This was intended for a concession by the smaller States to the larger.[88] The ratio of representation in the House was fixed by the committee at one member for every forty thousand inhabitants, in which three fifths of the slaves were to be computed; each State not possessing that number of inhabitants to be allowed one member. The number of senators was not designated. This arrangement was, upon the whole, reasonable and equitable. It balanced the equal representation of the States in the Senate against the popular representation in the House, and it gave to the larger States an important influence over the appropriations of money and the levying of taxes. Nor can the admission of the slaves, in some proportion, into the rule of representation, be justly considered as an improper concession, in a system in which the separate organizations of the States were to be retained, and in which the States were to be represented in proportion to their respective populations. The report of the committee had recommended that this plan should be taken as a whole; but as its several features were distasteful to different sections of the Convention, and almost all parties were disappointed in the result arrived at by the committee, the several parts of the plan became at once separate subjects of discussion. In the first place, the friends of a pure system of popular representation in both branches objected to the provision concerning money and appropriation bills, as being no concession on the part of the smaller States, and as a useless restriction.[89] It therefore, in their view, left in force all their objections against allowing each State an equal voice in the Senate. But it was voted to retain it in the report,[90] and the equal vote of the States in the second branch was also retained.[91] The scale of apportionment of representatives, recommended in the report of the committee, was also objected to on various grounds. It was said that a mere representation of persons was not what the circumstances of the case required;--that property as well as persons ought to be taken into the account in order to obtain a just index of the relative rank of the States. It was also urged, that, if the system of representation were to be settled on a ratio confined to the population alone, the new States in the West would soon equal, and probably outnumber, the Atlantic States, and thus the latter would be in a minority for ever. For these reasons, the subject of apportioning the representatives was recommitted to five members,[92] who subsequently proposed a scheme, by which the first House of Representatives should consist of fifty-six members, distributed among the States upon an estimate of their present condition,[93] and authorizing the legislature, as future circumstances might require, to increase the number of representatives, and to distribute them among the States upon a compound ratio of their wealth and the numbers of their inhabitants.[94] The latter part of this proposition was adopted, but a new and different apportionment, of sixty-five members for the first meeting of the legislature, was sanctioned by a large vote of the States, after a second reference to a committee of one member from each State.[95] These votes had been taken for the purpose of agreeing upon amendments to the original report of the compromise committee, which they would have so modified as to introduce into it, in place of a ratio of forty thousand inhabitants, including three fifths of the slaves, a fixed number of representatives for the first meeting of the legislature, distributed by estimate among the States, and for all subsequent meetings an apportionment by the legislature itself upon the combined principles of the wealth and numbers of inhabitants of the several States. But in order to understand the objections to the latter part of this proposition, and the modifications that were still to be made in it, it is necessary for us here to recur to that special interest which caused a new and most serious difficulty in the subject of representation, and which now began to be distinctly asserted by those whose duty it was to provide for it. There is no part of the history of the Constitution that more requires to be examined with a careful attention to facts, with an unprejudiced consideration of the purposes and motives of those who became the agents of its great compromises and compacts between sovereign States, and with an impartial survey of the difficulties with which they had to contend. Twice had the Convention affirmed the propriety of counting the slaves, if the States were to be represented according to the numbers of their inhabitants; and on the part of the slaveholding States there had hitherto been no dissatisfaction manifested with the old proportion of three fifths, originally proposed under the Confederation as a rule for including them in the basis of taxable property. But the idea was now advanced, that numbers of inhabitants were not a sufficient measure of the wealth of a State, and that, in adjusting a system of representation between such States as those of the American Union, regard should be had to their relative wealth, since those which were to be the most heavily taxed ought to have a proportionate influence in the government. Hence the plan of combining numbers and wealth in the rule. This was mainly an expedient to prevent the balance of power from passing to the Western from the Atlantic States.[96] It was supposed that the former might in progress of time have the larger amount of population; but that, as the latter would at the commencement of the government have the power in their own hands, they might deal out the right of representation to new States in such proportions as would be most for their own interests. Still there were grave objections to this combined rule of numbers and wealth as applied to the slaveholding States. In the first place, it was extremely vague; it left the question wholly undetermined whether the slaves were to be regarded as persons or as property, and therefore left that question to be settled by the legislature at every revision of the system. Moreover, although this rule might enable the Atlantic States to retain the predominating influence in the government as against the Western interests, it might also enable the Northern to retain the control as against the Southern States, after the former had lost and the latter had gained a majority of population. The proposed conjectural apportionment of members for the first Congress would give thirty-six members to the States that held few or no slaves, and twenty-nine to the States that held many. Mason and Randolph, who represented in a candid manner the objections which Virginia must entertain to such a scheme, did not deny, that, according to the present population of the States, the Northern part had a right to preponderate; but they said that this might not always be the case; and yet that the power might be retained unjustly, if the proportion on which future apportionments were to be made by the legislature were not ascertained by a definite rule, and peremptorily fixed by the Constitution. Gouverneur Morris, who strenuously maintained the necessity for guarding the interests of the Atlantic against those of the Western States, insisted that the combined principles of numbers and wealth gave a sufficient rule for the legislature; that it was a rule which they could execute; and that it would avoid the necessity of a distinct and special admission of the slaves into the census,--an idea which he was sure the people of Pennsylvania would reject. Mr. Madison argued, forcibly, that unfavorable distinctions against the new States that might be formed in the West would be both unjust and impolitic. He thought that their future contributions to the treasury had been much underrated; that the extent and fertility of the Western soil would create a vast agricultural interest; and that, whether the imposts on the foreign supplies which they would require were levied at the mouth of the Mississippi or in the Atlantic ports, their trade would certainly advance with their population, and would entitle them to a rule which should assume numbers to be a fair index of wealth. The arguments against the combined principles of numbers and wealth, as a mere general direction to the legislature, and against their joint operation upon the contrasted interests of the Western and the Atlantic States, appear to have prevailed with some of the more prominent of the Northern members.[97] Accordingly, when a counter proposition was brought forward by Williamson,[98]--which contemplated a return to the principle of numbers alone, and was intended to provide for a periodical census of the free white inhabitants and of three fifths of all other persons, and that the representation should be regulated accordingly,--six States on a division of the question voted for a census of the free inhabitants, and four States recorded their votes against it.[99] This result brought the Convention to a direct vote upon the naked question whether the slaves should be included as persons, and in the proportion of three fifths, in the census for the future apportionment of representatives among the States. Massachusetts and Pennsylvania now, for the first time, separated themselves from Virginia. It was perceived that a system of representation by numbers would draw after it the necessity for an admission of the slaves into the enumeration, unless it were confined to the free inhabitants. On the one hand, the delegates of these two States had to look to the probable encouragement of the slave-trade, that would follow an admission of the blacks into the representation, and to the probable refusal of their constituents to sanction such an admission. On the other hand, they had to encounter the difficulty of arranging a just rule of popular representation between States which would have no slaves, or very few, and States which would have great numbers of persons in that condition, without giving to the latter class of States some weight in the government proportioned to the magnitude of their populations. But they would not directly admit the naked principle that a slave is to be placed in the same category with a freeman for the purpose of representation, when he has no voice in the appointment of the representative; and the proposition was rejected by their votes and those of four other States.[100] Thereupon the whole substitute of Mr. Williamson, which contemplated numerical representation in the place of the combined rule of numbers and wealth, was unanimously rejected. The report of the committee of compromise still stood, therefore, but modified into the proposition of a fixed number for the first House of Representatives, and a rule to be compounded of the numbers and wealth of the States, to be applied by the legislature in adjusting the representation in future houses. A difficulty, apparently insuperable, had defeated the application of the simple and--as it might otherwise appropriately be called--the natural rule of numerical representation. The social and political condition of the slave, so totally unlike that of the freeman, presented a problem hitherto unknown in the voluntary construction of representative government. It was certainly true, that, by the law of the community in which he was found, and by his normal condition, he could have no voice in legislation. It was equally true, that he was no party to the establishment of any State constitution; that nobody proposed to make him a party to the Constitution of the United States, to confer upon him any rights or privileges under it, or to give to the Union any power to affect or influence his _status_ in a single particular. It was true also, that the condition in which he was held was looked upon with strong disapprobation and dislike by the people of several of the States, and it was not denied by some of the wisest and best of the Southern statesmen that it was a political and social evil. Still, there were more than half a million of these people of the African race, distributed among five of the States, performing their labor, constituting their peasantry, and--if the numbers of laborers in a community form any just index of its wealth and importance--forming in each of those States a most important element in its relative magnitude and weight. It should be recollected, that the problem before the framers of the Constitution was, not how to create a system of representation for a single community possessing in all its parts the same social institutions, but how to create a system in which different communities of mere freemen and other different communities of freemen and slaves could be represented, in a limited government instituted for certain special objects, with a proper regard to the respective rights and interests of those communities, and to the magnitude of the stake which they would respectively have in the legislation by which all were to be affected.[101] It does not appear, from any records of the discussions that have come down to us, in what way it was supposed the combined rule of numbers and wealth could be applied. If its application were left to Congress, in adjusting the system with reference to slaveholding States, the slaves must be counted as persons or as property; and as the proposed rule did not determine which, they might be treated as persons in one census, and as property in the next, and so on interchangeably. The suggestion of the principle, however, which seemed to be a just one, and which grew out of the conflicting opinions entertained upon the question whether numbers of inhabitants are alone a just index of the wealth of a community, brought into view a very important doctrine, that had long been familiar to the American people; namely, that the right of representation ought to be conceded to every community on which a tax is to be imposed; or, as one of the maxims of the Revolutionary period expressed it, that "taxation and representation ought to go together." This doctrine was really applicable to the case, and capable of furnishing a principle that would alleviate the difficulty; for if it could be agreed that, in levying taxes upon a slaveholding State, the wealth that consisted in slaves should be included, the maxim itself demonstrated the propriety of giving as large a proportion of representation as the proportion of tax imposed; and if, in order to ascertain the representative right of the State, the slaves were to be counted as persons, and, in ascertaining the tax to be paid, they were to be counted as property, they would not require to be considered in both capacities under either branch of the rule. But in order to give the maxim this application, it would be necessary to concede that the numbers of the slaves and the free persons furnished a fair index of the wealth of one State, as it was necessary to admit that the numbers of its free inhabitants furnished a fair index of the wealth of another State. If the latter were to be assumed, and the taxation imposed upon a State were regulated by its numbers of people, upon the idea that such numbers fairly represented the wealth of the community, it was proper to apply the same principle to the slaves. If this principle were applied to the slaves when ascertaining the amount of taxes to be paid, it ought equally to be applied to them in ascertaining the numbers of representatives to be allowed to the State; otherwise, the value of the slaves must be ascertained in some other way, for the purposes of taxation; the value or wealth residing in other kinds of property must be ascertained in the same mode, or under the different rule of assuming numbers of inhabitants as its index; and the slaves must be excluded as persons from the representation, which they could only enhance by being treated as taxable property. These further difficulties will appear, as we follow out the various steps taken for the purpose of applying the maxim which connects taxation with representation. The rule now under consideration, as the means of guiding the legislature in future distributions of the right of representation, was that they were to regulate it upon a ratio compounded of the wealth and numbers of inhabitants of the States. Gouverneur Morris now proposed to add to this, as a proviso, the correlative proposition, "that direct taxation shall be in proportion to representation." This was adopted; and it made the proposed rule of numbers and wealth combined applicable both to taxation and representation. But in truth it was as difficult to apply the combined rule of wealth and numbers to the subject of taxation, as between the States, as it was to apply it to the right of representation. This was not the first time in the history of the Union that these two subjects had been considered, and had been found to be surrounded with embarrassments. In 1776, when the Articles of Confederation were framed, it became necessary to determine the proportion in which the quotas of contribution to the general treasury should be assessed upon the States. Two obvious rules presented themselves as alternatives; either to apportion the quotas upon an estimate of the wealth of the States, or to assume that numbers of inhabitants of every condition presented a fair index of the pecuniary ability of a State to sustain public burdens. Here again, however, under either of these plans, the question would arise as to the kind of property to be regarded in the basis of the assessment. Should the slaves be treated as part of the property of a slaveholding State, either by a direct computation, or by counting them as part of the population, which was to be considered as the measure of its wealth? Mr. John Adams forcibly maintained that they ought not to be regarded as subjects of federal taxation, any more than the free laborers of the Northern States; but that numbers of inhabitants ought to be taken, indiscriminately, as the true index of the wealth of each State; and that thus the slave would stand upon the same footing with the free laborer, both being regarded as the producers of wealth, and therefore that both should add to the quota of tax or contribution to be levied upon the State.[102] Mr. Chase,[103] on the other hand, contended that practically this rule would tax the Northern States on numbers only, while it would tax the Southern States on numbers and wealth conjointly, since the slaves were property as well as persons. It is probable, however, that the slaveholding States would at that time have agreed to the adoption of numbers as the basis of assessment, if the Northern and Eastern States could have consented to receive the slaves into the enumeration in a smaller ratio than their whole number. But it was insisted that they should be counted equally with the free laborers of the other States; and the result of this attempt to solve a complicated and abstruse question of political economy by a theoretical rule, determining that a slave, as a producer of wealth, stands upon a precise equality with a freeman performing the same species of labor, was, that the Congress of 1776 were driven to the adoption of land as a measure of wealth, instead of the more convenient and practicable rule of numbers.[104] But the Articles of Confederation had not been in operation for two years, when it was found that the system of obtaining supplies for the general treasury by assessing quotas upon the States according to an estimate of their relative wealth, represented by the value of their lands, was entirely impracticable; that the value of land must constantly be a source of contention and dissatisfaction between the States; and that, if the mode of defraying the expenses of the Union by requisitions were adhered to, some simpler rule must be adopted. Accordingly, in 1783 the Congress were compelled to return to the rule of numbers; and it was in the effort to agree upon the ratio in which the slaves should enter into that rule, that the proportion of three fifths was fixed upon, as a compromise of different views, in the amendment then proposed to the Articles of Confederation.[105] Such had been the previous experience of the Union on the subject of taxation; and now, in 1787, when an effort was to be made to establish a government upon a popular representation of the States which had found it so difficult to agree upon a just and practicable rule for determining their proportions of the public burdens, the whole subject became still further complicated with the difficulties attending the adjustment of this new right of proportional representation. The maxim which would regulate it by the same ratio that is applied to the distribution of taxes, contained within itself a just principle; but it went no farther than to assert a principle of justice, and it left the subject of the rule itself surrounded by the same difficulties as before. The Southern States complained that their slaves, if counted as property for the purposes of taxation, were to be so counted upon a ratio left wholly to the discretion of Congress; and if counted as numbers, for the same purpose, that they ought not to be reckoned in their entire number. They professed their readiness to have representation and taxation regulated by the same rule, but they insisted on the security of a definite rule, to be established in the Constitution itself; and this security, they said, must embrace an admission of the slaves into the basis of representation, if they were to be included in the basis of direct taxation.[106] Accordingly, before the rule as to taxation had been determined, Randolph submitted a distinct proposition, which contemplated a census of the white inhabitants and of three fifths of all other persons, with a peremptory direction to Congress to arrange the representation accordingly. The Northern States, on the other hand, resisted the direct introduction of the slaves into the representation, as persons; and it was plain that, if they were to be treated as property, and the representation was to be regulated by a rule of wealth, their value as property must be compared with that of other species of personalty held in the same and in other States, and some principles for computing it must be ascertained. Upon such economical questions as these, the agreement of different minds, under the influence of different interests, was absolutely impossible. Thus the knot of these complicated difficulties could only be cut by the sword of compromise. In whatever direction a theoretical rule was applied,--whatever view was taken of the slave, as a person or as an article of property; as a productive laborer equally or less valuable to the State when compared with the freeman,--whatever principles were maintained upon the question whether numbers constitute a proper measure of the wealth of a community, and one that will work out the same result in communities where slavery exists, as well as where it is absent,--absolute truth, or what the whole country would receive as such, was unattainable. But an adjustment of the problem, founded on mutual conciliation and a desire to be just, was not impossible. The two objects to be accomplished were to avoid the offence that might be given to the Northern States by making the slaves in direct terms an ingredient in the rule of representation, and, on the other hand, to concede to the Southern States the right to have their representation enhanced by the same enumeration of their slaves that might be adopted for the purpose of apportioning direct taxation. These objects were effected by an arrangement proposed by Wilson. It consisted, first, in affirming the maxim that representation ought to be proportioned to direct taxation; and then, by directing a periodical census of the free inhabitants, and three fifths of all other persons, to be taken by the authority of the United States, and that the direct taxation should be apportioned among the States according to this census of persons. The principle was thus established, that, for the purpose of direct taxation, the number of inhabitants in each State should be assumed as the measure of its relative wealth; and that its right of representation should be regulated by the same measure; and as the slaves were to be admitted into the rule for taxation in the proportion of three fifths of their number only,--apparently upon the supposition that the labor of a slave is less valuable to the State than the labor of a freeman,--so they were in the same proportion only to enhance the representation. This expedient was adopted by the votes of a large majority of the States;[107] but since it had been moved as an amendment to the proposition previously accepted, which affirmed that the representation ought to be regulated by the combined rule of numbers and wealth, it appeared, when brought into that connection, to rest the representation of the slaveholding States in respect to the slaves, in part at least, upon the idea of property. To avoid all discrepancy in the application of the rule to the two subjects of representation and taxation, Governor Randolph proposed to strike the word "wealth" from the resolution; and this, having been done by a vote nearly unanimous,[108] left the enumeration of the slaves for both purposes an enumeration of persons, in less than their whole numbers; placing them in the rule for taxation, not as property and subjects of taxation, but as constituting part of an assumed measure of the wealth of a State, just as the free inhabitants constituted another part of the same measure, and placing them in the same ratio and in the same capacity in the rule for representation.[109] The basis of the House of Representatives having been thus agreed to, the remaining part of the report, which involved the basis of the Senate, was then taken up for consideration. Wilson, King, Madison, and Randolph still opposed the equality of votes in the Senate, upon the ground that the government was to act upon the people and not upon the States, and therefore the people, not the States, should be represented in every branch of it. But the whole plan of representation embraced in the amended report, including the equality of votes in the Senate, was adopted, by a bare majority, however, of the States present.[110] When this result was announced, Governor Randolph complained of its embarrassing effect on that part of the plan of a constitution which concerned the powers to be vested in the general government; all of which, he said, were predicated upon the idea of a proportionate representation of the States in both branches of the legislature. He desired an opportunity to modify the plan, by providing for certain cases to which the equality of votes should be confined; and in order to enable both parties to consult informally upon some expedient that would bring about a unanimity, he proposed an adjournment. On the following morning, we are told by Mr. Madison, the members opposed to an equality of votes in the Senate became convinced of the impolicy of risking an agreement of the States upon any plan of government by an inflexible opposition to this feature of the scheme proposed, and it was tacitly allowed to stand.[111] Great praise is due to the moderation of those who made this concession to the fears and jealousies of the smaller States. That it was felt by them to be a great concession, no one can doubt, who considers that the chief cause which had brought about this convention of the States was the inefficiency of the "federal" principle on which the former Union had been established. Looking back to all that had happened since the Confederation was formed,--to the repeated failures of the States to comply with the constitutional demands of the Congress, and to the entire impracticability of a system that had no true legislative basis, and could therefore exert no true legislative power,--we ought not to be surprised that the retention of the principle of an equal State representation in any part of the new government should have been resisted so strenuously and so long. That the final concession of this point was also a wise and fortunate determination, there can be no doubt. Those who made it probably did not foresee all its advantages, or comprehend all its manifold relations. They looked to it, in the first instance, as the means of securing the acceptance of the Constitution by all the States, and thus of preventing the evils of a partial confederacy. They probably did not at once anticipate the benefits to be derived from giving to a majority of the States a check upon the legislative power of a majority of the whole people of the United States. Complicated as this check is, it both recognizes and preserves the residuary sovereignty of the States; it enables them to hold the general government within its constitutional sphere of action; and it is in fact the only expedient that could have been successfully adopted, to preserve the State governments, and to avoid the otherwise inevitable alternative of conferring on the general government plenary legislative power upon all subjects. It is a part of the Constitution which it is vain to try by any standard of theory; for it was the result of a mere compromise of opposite theories and conflicting interests. Its best eulogium is to be found in its practical working, and in what it did to produce the acceptance of a constitution believed, at the time of its adoption, to have given an undue share of influence and power to the larger members of the confederacy.[112] NOTE ON THE POPULATION OF THE SLAVEHOLDING AND NON-SLAVEHOLDING STATES. Although, at the time of the formation of the Constitution, slavery had been expressly abolished in two of the States only (Massachusetts and New Hampshire), the framers of that instrument practically treated all but the five Southern States as if the institution had been already abolished within their limits, and counted all the colored persons therein, whether bond or free, as part of the free population; assuming that the eight Northern and Middle States would be free States, and that the five Southern States would continue to be slave States. This appears from the whole tenor of the debates, in which the line is constantly drawn, as between slaveholding and non-slaveholding States, so as to throw eight States upon the Northern and five upon the Southern side. I have found also, in a newspaper of that period (New York Daily Advertiser, February 5, 1788), the following "ESTIMATE OF THE POPULATION OF THE STATES MADE AND USED IN THE FEDERAL CONVENTION, ACCORDING TO THE MOST ACCURATE ACCOUNTS THEY COULD OBTAIN." New Hampshire, 102,000 Massachusetts, 360,000 Rhode Island, 58,000 Connecticut, 202,000 New York, 238,000 New Jersey, 138,000 Pennsylvania, 360,000 Delaware, 37,000 ---------1,495,000 Maryland, including three fifths of 80,000 negroes, 218,000 Virginia, " " 280,000 " 420,000 North Carolina, " " 60,000 " 200,000 South Carolina, " " 80,000 " 150,000 Georgia, " " 20,000 " 90,000 ---------1,078,000 The authenticity of this table is established by referring to a speech made by General Pinckney in the legislature of South Carolina, in which he introduced and quoted it at length. (Elliot's Debates, IV. 283.) From this it appears that the estimated population of the eight Northern and Middle States, adopted in the Convention, was 1,495,000; that of the five Southern States (including three fifths of an estimated number of negroes) was 1,078,000. Comparing this estimate with the results of the first census, it will be seen that the _total_ population of the eight Northern and Middle States exceeds the _federal_ population of the five Southern States, in the census of 1790, in about the same ratio as the former exceeds the latter in the estimate employed by the Convention. Thus in 1790 the _total_ population of the eight Northern and Middle States, including all slaves, was 1,845,595; the _federal_ population of the five Southern States, including three fifths of the slaves, was 1,540,048;--excess 305,547. In the estimate of 1787, the population allotted to the eight Northern and Middle States was 1,495,000; that allotted to the five Southern States, counting only three fifths of the estimated number of slaves, was 1,078,000;--excess in favor of the eight States, 417,000. This calculation shows, therefore, that, in estimating the population of the different States for the purpose of adjusting the first representation in Congress, the Convention applied the rule of three fifths of the slaves to the five Southern States only, and that as to the other eight States no discrimination was made between the different classes of their inhabitants. Other methods of comparing the estimate of 1787 with the census of 1790 will lead to the same conclusion. FOOTNOTES: [86] The committee consisted of Gerry, Ellsworth, Yates, Patterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge, and Baldwin. [87] The committee was appointed on the 2d of July, and made their report on the 5th. The Convention in the interval transacted no business. [88] See further as to this exclusive power of the House, _post._ [89] Madison, Butler, Gouverneur Morris, and Wilson. [90] Five States voted to retain it, three voted against it, and three were divided. This was treated as an affirmative vote. Elliot, V. 255. [91] Connecticut, New York, New Jersey, Delaware, Maryland, North Carolina, _ay_ 6; Pennsylvania, Virginia, South Carolina, _no_,3; Massachusetts, Georgia, divided. Ibid. 285, 286. [92] Gouverneur Morris, Gorham, Randolph, Rutledge, and King. [93] They gave to New Hampshire, 2; Massachusetts, 7; Rhode Island, 1; Connecticut, 4; New York, 5; New Jersey, 3; Pennsylvania, 8; Delaware, 1; Maryland, 4; Virginia, 9; North Carolina, 5; South Carolina, 5; Georgia, 2. [94] Elliot, V. 287, 288. [95] This apportionment gave to New Hampshire, 3; Massachusetts, 8; Rhode Island, 1; Connecticut, 5; New York, 6; New Jersey, 4; Pennsylvania, 8; Delaware, 1; Maryland, 6; Virginia, 10; North Carolina, 5; South Carolina, 5; Georgia, 3. [96] See Mr. Gorham's explanation; Madison, Elliot, V. 288. [97] Sherman and Gorham. [98] Of North Carolina. [99] Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, _ay_, 6; Delaware, Maryland, South Carolina, Georgia, _no_, 4. The votes of South Carolina and Georgia were given in the negative, because they desired that the blacks should be included in the census equally with the whites. For the same reason, as we shall see presently, those States voted against the other branch of the proposition, which would give but three fifths of the slaves. But upon what principle, unless it was from general opposition to all numerical representation, the State of Delaware should have voted with them on both of these features of the proposed census, is, I confess, to me inexplicable. [100] Connecticut, Virginia, North Carolina, Georgia, _ay_, 4; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, _no_, 6. South Carolina voted in the negative, for a reason suggested in the previous note, _ante_, p. 153. [101] See the note on the population of the slaveholding and non-slaveholding States, at the end of this chapter. [102] See Mr. Jefferson's notes of this debate in the Congress of 1776, Works, Vol. I. pp. 26-30. John Adams's Works, Vol. II. pp. 496-498. [103] Samuel Chase of Maryland. [104] See _ante_, Vol. I. pp. 210-213. [105] See Mr. Madison's notes of the debate in the Congress of 1783, Elliot, V. 78-80. Journals of Congress, VIII. 188 (April 18, 1783). _Ante_, Vol. I. p. 213. [106] See the remarks of General Pinckney, Mr. Mason, Mr. Butler, and Governor Randolph. Elliot, V. 294-305. [107] Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, _ay_, 6; New Jersey, Delaware, _no_, 2; Massachusetts, South Carolina, divided. [108] The only opposition was from Delaware, the vote of which was divided. [109] See the note at the end of this chapter. [110] Connecticut, New Jersey, Delaware, Maryland, North Carolina (Mr. Spaight, _no_), _ay_, 5; Pennsylvania, Virginia, South Carolina, Georgia, _no_, 4; Massachusetts divided (Mr. Gerry, Mr. Strong, _ay_, Mr. King, Mr. Gorham, _no_). The delegates of New York were all absent; Messrs. Yates and Lansing left the Convention on the 5th of July, after the principle of popular representation had been adopted. Colonel Hamilton was absent on private business. If the two former had been present, the vote of the State would doubtless have been given in favor of the report, on account of the basis which it gave to the Senate. [111] Elliot, V. 319. [112] Mr. Madison, who was to the last a strenuous opponent of the equality of votes in the Senate, candidly and truly stated its merits in the 62d number of the Federalist, as they had been disclosed to him by subsequent reflection. CHAPTER VIII. POWERS OF LEGISLATION.--CONSTITUTION AND CHOICE OF THE EXECUTIVE.--CONSTITUTION OF THE JUDICIARY.--ADMISSION OF NEW STATES.--COMPLETION OF THE ENGAGEMENTS OF CONGRESS.--GUARANTY OF REPUBLICAN CONSTITUTIONS.--OATH TO SUPPORT THE CONSTITUTION.--RATIFICATION.--NUMBER OF SENATORS.--QUALIFICATIONS FOR OFFICE.--SEAT OF GOVERNMENT. Of the remaining subjects comprehended in the report of the committee of the whole, it will only be necessary here to make a brief statement of the action of the Convention, before we arrive at the stage at which the principles agreed upon were sent to a committee of detail to be cast into the forms of a Constitution. Recurring to the sixth resolution in the report of the committee of the whole, an addition was made to its provisions, by inserting a power to legislate in all cases for the general interests of the Union; and for the clause giving the legislature power to negative certain laws of the States, the principle was substituted of making the legislative acts and treaties of the United States the supreme law of the land, and binding upon the judiciaries of the several States. The constitution of the executive department had been provided for, by declaring that it should consist of a single person, to be chosen by the national legislature for a period of seven years, and to be ineligible a second time; to have power to carry into execution the national laws, to appoint to offices not otherwise provided for, to be removable on impeachment, and to be paid for his services by a fixed stipend out of the national treasury. The mode of constituting this department did not, as in the case of the legislative, present the question touching the nature of the government described by the terms "federal" and "national." It was entirely consistent with either plan,--with that of a union formed by the States in their political capacities, or with one formed by the people of the States, or with one partaking of both characters,--that the executive should be chosen mediately or immediately by the people, or by the legislatures or executives of the States, or by the national legislature. The same contest, therefore, between the friends and opponents of a national system was not obliged to be renewed upon this department. So long as the form to be given to the institution was consistent with a system of republican government,--so long as it provided an elective magistrate, not appointed by an oligarchy, and holding by a responsible and defeasible tenure of office,--whether he should be chosen by the people of the States, or by some of their other public servants, would not affect the principles on which the legislative power of the government was to be founded. But this very latitude of choice, as to the mode of appointment, and the duration of office, opened the greatest diversity of opinion. In the earlier stages of the formation of a plan of government of three distinct departments, the idea of an election of the executive by the people at large was scarcely entertained at all. It was not supposed to be practicable for the people of the different States to make an intelligent and wise choice of the kind of magistrate then contemplated,--a magistrate whose chief function was to be that of an executive agent of the legislative will. Regarding the office mainly in this light, without having yet had occasion to look at it closely as the source of appointments to other offices and as the depositary of a check on the legislative power itself, the framers of the plan now under consideration had proposed to vest the appointment in the legislature, as the readiest mode of obtaining a suitable incumbent, without the tumults and risks of a popular election. But the power of appointment to other offices and the revisionary check on legislation were no sooner annexed to the executive office, than it was perceived that some provision must be made for obviating the effects of its dependence on the legislative branch. An executive chosen by the legislature must be to a great extent the creature of those from whom his appointment was derived. To counteract this manifestly great inconvenience and impropriety, the incumbent of the executive office was to be ineligible a second time. This, however, was to encounter one inconvenience by another, since the more faithfully and successfully the duties of the station might be discharged, the stronger would be the reasons for continuing the individual in office. The ineligibility was accordingly stricken out. Hence it was, that a variety of propositions concerning the length of the term of office were attempted, as expedients to counteract the evils of an election by the legislature of a magistrate who was to be re-eligible; and among them was one which contemplated "good behavior" as the sole tenure of the office.[113] This proposition was much considered; it received the votes of four States out of ten;[114] and it is not at all improbable that it would have received a much larger support, if the supposed disadvantages of an election by the people had led a majority of the States finally to retain the mode of an election by the national legislature.[115] But in consequence of the impossibility of agreeing upon a proper length of term for an executive that was to be chosen by the legislature, the majority of the Convention went back to the plan of making the incumbent ineligible a second time, which implied that some definite term was to be adopted. This again compelled them to consider in what other mode the executive could be appointed, so as to avoid the evil of subjecting the office to the unrestrained influence of the legislature, and to remove the restriction upon the eligibility of the officer for a second term. In an election of the chief executive magistrate by the people, voting directly, the right of suffrage would have to be confined to the free inhabitants of the several States. But even with respect to the free inhabitants, the right of suffrage was differently regulated in the different States; and there must either be a uniform and special rule established as to the qualification of voters for the executive of the United States, or the rule of suffrage of each State must be adopted for this as well as other national elections. In the Northern States, too, the right of suffrage was much more diffused than in the Southern, and the question must arise, as it had arisen in the construction of the representative system, whether the States were to possess an influence in the choice of a chief magistrate for the Union in proportion to the number of their inhabitants, or only in proportion to their qualified voters, or their free inhabitants. The substitution of electors would obviate these difficulties, by affording the means of determining the precise weight in the election that should be allotted to each State, without attempting to prescribe a uniform rule of suffrage in the primary elections, and without being obliged to settle the discrepancies between the election laws of the States. They furnished, also, the means of removing the election from the direct action of the people, by confiding the ultimate selection to a body of men, to be chosen for the express purpose of exercising a real choice among the eminent individuals who might be thought fit for the station. But the mode of choice was complicated with the other questions of re-eligibility, and especially with that of impeachment. If appointed by electors, there would be danger of their being corrupted by the person in office, if he were eligible a second time, or by a candidate who had not filled the station. Hence there would be a propriety in making the executive subject to impeachment while in office. If chosen by the legislature, it seemed to be generally agreed, that the executive ought not to be eligible a second time; but whether he ought to be subject to impeachment, and by what tribunal, was a subject on which there were great differences of opinion. The consequence of this great diversity of views was, that the plan embraced in the ninth resolution of the committee of the whole was retained and sent to the committee of detail. With respect to the judiciary, several important changes were made in the plan of the committee of the whole. The prohibition against any increase of salary of the individuals holding the office was stricken out, and the restriction was made applicable only to a diminution of the salary. The cognizance of impeachments of national officers was taken from their jurisdiction, and the principle was adopted which extended that jurisdiction to "all cases arising under the national laws, and to such other questions as may involve the national peace and harmony." The power to appoint inferior tribunals was confirmed to the national legislature. The fourteenth resolution, providing for the admission of new States, was unanimously agreed to. The fifteenth resolution, providing for the continuance of Congress and for the completion of their engagements, was rejected. The principle of the sixteenth resolution, which provided a guaranty by the United States of the institutions of the States, was essentially modified. In the place of a guaranty applicable both to a republican constitution and the "existing laws" of a State, the declaration was adopted, "that a republican form of government shall be guaranteed to each State, and that each State shall be protected against foreign and domestic violence."[116] The seventeenth resolution, that provision ought to be made for future amendments, was adopted without debate.[117] The eighteenth resolution, requiring the legislative, executive, and judicial officers of the States to be bound by oath to support the Articles of Union, was then extended to include the officers of the national government. The next subject that occurred in the order of the resolutions was that of the proposed ratification of the new system by the people of the States, acting through representative bodies to be expressly chosen for this purpose, instead of referring it for adoption to the legislatures of the States. As this is a subject on which very different theories are maintained, arising partly from different views of the historical facts, and as there are very different degrees of importance attached to the mode in which the framers of the Constitution provided for its establishment, it will be convenient here to state the position in which they found themselves at this period in their deliberations, the purposes which they had in view, and the steps which they took to accomplish their objects. They were engaged in preparing a new system of government, and in providing for its introduction. When they were first called together, the general purpose of the States may seem to have been confined to a mode of introducing changes in the fundamental compact of the Union, such as was provided for by the Articles of Confederation. But the Convention had found itself obliged, from the sheer necessities of the country, to go far beyond the Confederation, and to make a total change in the principle of the government. It became, therefore, necessary for them to provide a mode of enacting or establishing this change, which would commend itself to the confidence of the people, by its conformity with their previous ideas of constitutional action, and be at the same time consonant with reason and truth. Again, there was a peculiarity in their situation, which rendered it quite different from that of the delegates of a people who had abolished a pre-existing government, and had assembled a representative body to form a new one. The Confederation still existed. As a compact between sovereign States, providing for a special mode in which alterations of its articles were to be made, and limiting their adoption to the case of unanimous consent, it was still in force. The States, in their political capacities as sovereign communities, were still the parties to the compact, and their legislatures alone were clothed with the authority to change its provisions. It was necessary, therefore, to encounter and to solve the question, whether a new government, framed upon a principle unlike that of the Confederation, and embracing an entirely different legislative authority, could be established in the mode prescribed by the existing compact of the States; and if it could not, whether there existed any power, apart from the State governments, by which it could be established and be clothed with a paramount authority, resting on a basis of principle, and not upon force, fiction, or fraud. In the early formation of the Union that took place before the Declaration of Independence, questions of the constitutional power of the Colonies which became members of it could scarcely arise at all, since those who undertook to act for and to represent the people of each Colony were proceeding upon revolutionary principles and rights. But before the Articles of Confederation, which constituted the first union of the States upon ascertained and settled principles of government, had been agreed upon, many of the State constitutions were formed; and when those Articles were entered into, the State governments represented the sovereignty of distinct political communities, and were entirely competent to form such a confederacy as was then established by their joint and unanimous consent. All the obligations which the Confederation imposed upon its members rested upon the States in their corporate capacities; and the government of each of them was competent to assume, for the State, such obligations, and to enter into such stipulations. In the same way, it was competent to the State governments to make alterations in the Articles of Confederation, by unanimous consent, so long as those alterations did not change the fundamental principle of the Union, which was that of a system of legislation for the States in their corporate capacities. But when it was proposed to reverse this principle, and to create a government, external to the governments of the States, clothed with authority to exact obedience from the individual inhabitants of the States, and to act upon them directly, the question might well arise, whether the State governments were competent to cede such an authority over their constituents, and whether it could be granted by anybody but the people themselves. It might, it is true, be said, that their constitutions made the governments of the States the depositaries of the sovereignty and political powers of the people inhabiting those States. But if this was true, in a general sense, for the purpose of exercising the political powers of the people, it was not true, in any sense, for the purpose of granting away those powers to other agents. The latter could only be done by those who had constituted the first class of agents, and who were able to say that certain portions of the authority with which they had been clothed should be withdrawn, and be revested in another class. Undoubtedly it would have been possible to have given the Constitution of the United States a theoretical adoption by the people of the States, by committing its acceptance to the State legislatures, relying on the acquiescence of the people in their acts. But there were two objections to this course. The one was, that the legislatures were believed less likely than the people to favor the establishment of such a government as that now proposed. The other was, that the kind of legal fiction by which the presumed assent of the people must be reached, in this mode, would leave room for doubts and disputes as to the real basis and authority of the government, which ought, if possible, to be avoided. Another difficulty of a kindred nature rendered it equally inexpedient to rely on the sanction of the State legislatures. The States, in their corporate capacities, and through the agency of their respective governments, were parties to a federal system, which they had stipulated with each other should be changed only by unanimous consent. The Constitution, which was now in the process of formation, was a system designed for the acceptance of the people of all the States, if the assent of all could be obtained; but it was also designed for the acceptance of a less number than the whole of the States, in case of a refusal of some of them; and it was at this time highly probable that at least two of them would not adopt it. Rhode Island had never been represented in the Convention; and the whole course of her past history, with reference to enlargements of the powers of the Union, made it quite improbable that she would ratify such a plan of government as was now to be presented to her. The State of New York had, through her delegates, taken part in the proceedings, until the final decision, which introduced into the government a system of popular representation; but two of those delegates, entirely dissatisfied with that decision, had withdrawn from the Convention, and had gone home to prepare the State for the rejection of the scheme.[118] The previous conduct of the State had made it not at all unlikely that their efforts would be successful. Nor were there wanting other indications of the most serious dissatisfaction, on the part of men of great influence in some of the other States. Unanimity had already become hopeless, if not impracticable; and it was necessary, therefore, to look forward to the event of an adoption of the system by a less number than the whole of the States, and to make it practicable for a less number to form the new Union for which it provided. This could only be done by presenting it for ratification to the people of each State, who possessed authority to withdraw the State government from the Confederation, and to enter into new relations with the people of such other States as might also withdraw from the old and accept the new system. There was another and more special reason for resorting to the direct sanction of the people of the States, which has already been referred to in general terms, but for which we must look still more closely into the nature of the system proposed. In that system, the legislative authority was to reside in the concurrent action of a majority of the people and a majority of the States. How could the State government of Delaware, for example, confer upon a majority of the representatives of the people of all the States, and a majority of the representatives of all the States, that might adopt the new Constitution, power to bind the people of Delaware by a legislative act, to which their own representatives might have refused their assent? The State government was appointed and established for the purpose of binding the people of the State by legislative acts of their own servants and immediate representatives; but not for the purpose of consenting that legislative power over the people of that State should be exercised by agents not delegated by themselves. Yet such a consent was involved in the new system now to be proposed, and was, in some way--by some safe and competent method--to be obtained. A legislative power was to be created by the assembling in one branch of the representatives of the people of all the States, in proportion to their numbers, and in the other branch by assembling an equal number of representatives of each State, without regard to its numbers of people. The authority of law, upon all subjects that might be committed to this legislative power, was to attend the acts of concurring majorities in both branches, even against the separate and adverse will of the minority. It was impossible to rest this authority upon any other basis than that of the ratification of the system by the people of each State, to be given by themselves in primary assemblies, or by delegates expressly chosen in such assemblies, and appointed to give it, if they should see fit. A system founded on the consent of the legislatures would be a treaty between sovereign States; a system founded on the consent of the people would be a constitution of government, ordained by those who hold and exercise all political power.[119] There were not wanting, however, strong advocates of a reference to the State legislatures; and the votes of three of the States were at first given for that mode of ratifying the Constitution; but the other plan was finally adopted with nearly unanimous consent.[120] Still, the resolution under consideration contained a feature which wisely provided for the assent of the existing Congress to the changes that were to be made by the establishment of the new system. It proposed that the plan of the new Constitution should be first submitted to Congress for its approbation, and that the legislatures of the States should then recommend to the people to institute assemblies to consider and decide on its adoption. These steps were to be taken, in pursuance of the course marked out when the Convention was called. The resolution of Congress, which recommended the Convention, required that the alterations which it might propose should be "agreed to in Congress and confirmed by the States"; and such was the tenor of the instructions given to the delegates of most of the States. This direction would be substantially complied with, if the legislatures, on receiving and considering the system, should recommend to the people to appoint representative bodies to consider and decide on its adoption, and the people should so adopt and ratify it.[121] The topics covered by the report of the committee of the whole had thus been passed upon in the Convention, and the outline of the Constitution had been framed. There remained only three subjects on which it would be necessary to act in order to provide for a complete scheme of government. It was necessary to determine the number of senators to which each State should be entitled; to ascertain the qualifications of members of the government; and to determine at what place the government should be seated. The number of senators was not agreed upon at the time when the principle of an equal representation of the States in the Senate was adopted; and it had not been determined in what method they were to vote. It was now settled that the Senate should consist of two members from each branch, and that they should vote _per capita_. To this arrangement one State only dissented. The vote of Maryland was given against it, through the influence of Luther Martin, who considered this method of voting a departure from the idea of the States being represented in the Senate. But this objection was obviously unsound; for although, by this method of voting, the influence of a State _may_ be divided, its members have the _power_ to concur, and to make the vote of the State more effectual than it would be if it had only a single suffrage. The subject of the qualifications to be required of the executive, the judiciary, and the members of both branches of the legislature, went to the committee of detail in a form which was subsequently modified in a very important particular. It was at first proposed,[122] that landed property, as well as citizenship in the United States, should be embraced in the qualifications. But there were solid objections to this requirement, founded on the circumstances of the country and the nature of a republican constitution. So far as the people of the United States could be said to be divided into classes, the principal divisions related to the three occupations of agriculture, commerce, and manufactures of all kinds, including in the latter all who exercised the mechanic arts. As a general rule, it was supposed at that time to be true, that the commercial and manufacturing classes held very little landed property; and that although they were much less numerous than the agricultural class, yet that they were likely to increase in a far greater ratio than they had hitherto. Practically, therefore, to require a qualification of landed property, would be to give the offices of the general government to the agricultural interest. These considerations led the Convention, by a nearly unanimous vote, to reject the proposition for a landed qualification.[123] Very serious doubts were also entertained, whether, in constructing a republican constitution, it was proper to pay so much deference to distinctions of wealth as would be implied by the adoption of any property qualification for office. There are two methods in which the interests of property may be secured, in the organization of a representative government. It may be required as a qualification, either of the elector or the elected, that the individual shall possess a certain amount of property. But it seems scarcely consistent with the spirit of a republican constitution, that this should be made a qualification for holding office, although it may be quite proper to require some degree of property, or its equivalent evidence of moral fitness, as a qualification for the right of choosing to office. The solid reason for a distinction is, that, in order to have a property qualification for office at all efficient, or even of any perceptible operation, it must be made so large that it will tend to exclude persons of real talent, or even the highest capacity for the public service. Whereas, a property qualification may be applied to the exercise of the elective franchise, by requiring so small an amount that it will practically exclude but few who possess the moral requisites for its intelligent and honest use; and even to this extent the operation of such a rule may be, as it is in some well-governed communities, greatly relieved, by substituting for the positive possession of any amount of property, that species of evidence of moral fitness for the right of voting that is implied by the capacity to pay a very small portion of the public burdens.[124] At the present stage, however, of the formation of the Constitution of the United States, the opinions of a majority of the States were in favor of a property qualification for office, as well as a requirement of citizenship; and the committee of detail were instructed accordingly, with, the dissent of only three of the States.[125] But, as we shall afterwards find, another view of the subject finally prevailed.[126] No definite action was had, at this stage, upon the subject of a seat of the national government; but it was almost unanimously agreed to be the general sense of the country, that it ought not to be placed at the seat of any State government, or in any large commercial city; and that provision ought to be made by Congress, as speedily as possible, for the establishment of a national seat and the erection of suitable public buildings. Such was the character of the system sent to a committee of detail, to be put into the form of a constitution.[127] Before it was sent to them, however, a notice was given by an eminent Southern member, which looked to the introduction of provisions not yet contemplated or discussed. According to Mr. Madison's minutes, General Pinckney rose and reminded the Convention, that, if the committee should fail to insert some security to the Southern States against an emancipation of slaves, and taxes on exports, he should be bound by duty to his State to vote against their report.[128] The resolutions as adopted by the Convention, together with the propositions offered by Mr. Charles Pinckney on the 29th of May, and those offered by Mr. Patterson on the 15th of June, were then referred to a committee of detail.[129] FOOTNOTES: [113] Moved by Dr. M'Clurg, one of the Virginia delegates, and the person appointed in the place of Patrick Henry, who declined to attend the Convention. [114] New Jersey, Pennsylvania, Delaware, Virginia, _ay_, 4; Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, _no_, 6. [115] I understand Mr. Madison to have voted for this proposition, and that his view of it was, that it might be a necessary expedient to prevent a dangerous union of the legislative and executive departments. He said that the propriety of the plan of an executive during good behavior would depend on the practicability of instituting a tribunal for impeachments, as certain and as adequate in the case of the executive as in the case of the judges. His remarks, of course, were predicated upon the idea of a final necessity for retaining the choice of the executive by the legislature. In a note to his "Debates," appended to the vote on this question, it is said: "This vote is not to be considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the executive on the legislature, and thereby to facilitate some final arrangement of a contrary tendency. The avowed friends of an executive 'during good behavior' were not more than three or four, nor is it certain they would have adhered to such a tenure." (Madison, Elliot, V. 327.) By "the avowed friends of an executive during good behavior," I understand Mr. Madison to mean those who would have preferred that tenure, under all forms and modes of election. I can trace in the debates no evidence that any other person except Gouverneur Morris was indifferent to the mode in which the executive should be chosen, provided he held his place by this tenure. Whether Hamilton held this opinion, and adhered to it throughout, is a disputed point. In a letter to Timothy Pickering, written in 1803, he says that his final opinion was against an executive during good behavior, "on account of the increased danger to the public tranquillity incident to the election of a magistrate of this degree of permanency." In proof of this view of the subject, he remarks: "In the plan of a constitution which I drew up while the Convention was sitting, and which I communicated to Mr. Madison about the close of it, perhaps a day or two after, the office of President has no longer duration than for three years." (Niles's Register, November 7, 1812.) In this he was probably mistaken. (See Hamilton's Works, II. 401. Madison, Elliot, V. 584.) [116] _Ante_, Chap. V. [117] At this point (July 23) John Langdon and Nicholas Gilman took their seats as delegates from New Hampshire. [118] See the letter of Messrs. Yates and Lansing to Governor Clinton, Elliot, I. 480. [119] There seems to be a sound distinction between the two, which was pointed out by Mr. Madison. He said that "he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a _league_, or treaty, and a _constitution_. The former, in point of _moral obligation_, might be as inviolable as the latter. In point of _political operation_, there were two important distinctions in favor of the latter. First, a [State] law violating a treaty ratified by a pre-existing [State] law might be respected by the judges as a law, though an unwise or perfidious one. A [State] law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties was, that a breach of any one article by any of the parties freed the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact had always been understood to exclude such an interpretation." Elliot, V. 355, 356. [120] Connecticut, Delaware, and Maryland voted for an amendment to the original resolution, which, if adopted, would have submitted the Constitution to the State legislatures. The resolution to refer it to assemblies chosen for the purpose by the people, was subsequently adopted, with the dissent of one State only, Delaware. [121] For the history of the proceedings relating to the institution of the national Convention, see _Ante_, Vol. I. Book III. Chap. VI. [122] By Mason. [123] Maryland alone voted to retain it. [124] As in the State of Massachusetts; where the sole money qualification required of a voter is the payment of an annual poll-tax of $1.25, or about five shillings _sterling_. [125] Connecticut, Pennsylvania, and Delaware. [126] See the title "Qualifications" in the Index. [127] The committee of detail, appointed July 24, consisted of Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. Elliot, V. 357. [128] By a security against an emancipation of slaves, General Pinckney meant some provision for their extradition in cases of escape into the free States. This is apparent from the history of the extradition clause; and it is upon the notice thus given by him, and the action had upon this clause, that the statement often made, which assumes that the Constitution could not have been established without some provision on this subject--as well as upon general reasoning from the circumstances of the case--rests for its proof. See as to the origin and history of the extradition clause, _post_, p. 450. [129] The resolutions, as referred, were as follows:-- "1. _Resolved_, That the government of the United States ought to consist of a supreme legislative, judiciary, and executive. "2. _Resolved_, That the legislature consist of two branches. "3. _Resolved_, That the members of the first branch of the legislature ought to be elected by the people of the several States for the term of two years; to be paid out of the public treasury; to receive an adequate compensation for their services; to be of the age of twenty-five years at least; to be ineligible to, and incapable of holding, any office under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service of the first branch. "4. _Resolved_, That the members of the second branch of the legislature of the United States ought to be chosen by the individual legislatures; to be of the age of thirty years at least; to hold their offices for six years, one third to go out biennially; to receive a compensation for the devotion of their time to the public service; to be ineligible to, and incapable of holding, any office under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term for which they are elected, and for one year thereafter. "5. _Resolved_, that each branch ought to possess the right of originating acts. "6. _Resolved_, That the national legislature ought to possess the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation. "7. _Resolved_, That the legislative acts of the United States, made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding. "8. _Resolved_, That, in the original formation of the legislature of the United States, the first branch thereof shall consist of sixty-five members; of which number, New Hampshire shall send three; Massachusetts, eight; Rhode Island, one; Connecticut, five; New York, six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, ten; North Carolina, five; South Carolina, five; Georgia, three. But as the present situation of the States may probably alter in the number of their inhabitants, the legislature of the United States shall be authorized, from time to time, to apportion the number of representatives; and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any new States created within the limits of the United States, the legislature of the United States shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned, namely: Provided always, that representation ought to be proportioned to direct taxation. And in order to ascertain the alteration in the direct taxation which may be required from time to time by the changes in the relative circumstances of the States,-- "9. _Resolved_, That a census be taken within six years from the first meeting of the legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their resolution of the 18th of April, 1783; and that the legislature of the United States shall proportion the direct taxation accordingly. "10. _Resolved_, That all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature of the United States, and shall not be altered or amended by the second branch; and that no money shall be drawn from the public treasury, but in pursuance of appropriations to be originated by the first branch. "11. _Resolved_, That, in the second branch of the legislature of the United States, each State shall have an equal vote. "12. _Resolved_, That a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of malepractice or neglect of duty; to receive a fixed compensation for the devotion of his time to the public service, to be paid out of the public treasury. "13. _Resolved_, That the national executive shall have a right to negative any legislative act; which shall not be afterwards passed, unless by two third parts of each branch of the national legislature. "14. _Resolved_, That a national judiciary be established, to consist of one supreme tribunal, the judges of which shall be appointed by the second branch of the national legislature; to hold their offices during good behavior; to receive punctually, at stated times, a fixed compensation for their services, in which no diminution shall be made so as to affect the persons actually in office at the time of such diminution. "15. _Resolved_, That the national legislature be empowered to appoint inferior tribunals. "16. _Resolved_, That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature; and to such other questions as involve the national peace and harmony. "17. _Resolved_, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole. "18. _Resolved_, That a republican form of government shall be guaranteed to each State; and that each State shall be protected against foreign and domestic violence. "19. _Resolved_, That provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary. "20. _Resolved_, That the legislative, executive, and judiciary powers, within the several States, and of the national government, ought to be bound, by oath, to support the Articles of Union. "21. _Resolved_, That the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times, after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon. "22. _Resolved_, That the representation in the second branch of the legislature of the United States shall consist of two members from each State, who shall vote _per capita_. "23. _Resolved_, That it be an instruction to the committee to whom were referred the proceedings of the Convention for the establishment of a national government, to receive a clause, or clauses, requiring certain qualifications of property and citizenship in the United States, for the executive, the judiciary, and the members of both branches of the legislature of the United States." CHAPTER IX. REPORT OF THE COMMITTEE OF DETAIL.--CONSTRUCTION OF THE LEGISLATURE.--TIME AND PLACE OF ITS MEETING. Having now reached that stage in the process of framing the Constitution at which certain principles were confided to a committee of detail, the reader will now have an opportunity to observe the farther development and application of those principles, the mode in which certain chasms in the system were supplied, and the final arrangements which produced the complete instrument that was submitted to the people of the United States for their adoption. Great power was necessarily confided to a committee, to whom was intrusted the first choice of means and of terms that were to give practical effect to the principles embraced in the resolutions of the Convention. There might be a substantial compliance with the intentions previously indicated by the debates and votes of the Convention, and at the same time the mode in which those intentions should be carried out by the committee might require a new consideration of the subjects involved. Hence it is important to pursue the growth of the Constitution through the entire proceedings. The committee of detail presented their report on the 6th of August, in the shape of a Constitution divided into three-and-twenty Articles. It is not my purpose to examine this instrument in the precise order of its various provisions, or to describe all the discussions which took place upon its minute details. It is more consonant with the general purpose of this history, to group together the different features of the Constitution which relate to the structure and powers of the different departments and to the fundamental purposes of the new government.[130] In accordance with the previous decisions of the Convention, the committee of detail had provided that the legislative power of the United States should be vested in a Congress, to consist of two branches, a House of Representatives and a Senate, each of which should have a negative on the other. But as to the persons by whom the members of the national legislature were to be appointed, no decision had been made in the Convention, excepting that the members of the House were to be chosen by the people of the States, and the members of the Senate by their legislatures. Nothing had been settled respecting the qualifications of the electors of representatives; nor had the qualifications of the members of either branch been determined.[131] Two great questions, therefore, remained open; first, with what class of persons was the election of members of the popular branch of the legislature to be lodged; secondly, what persons were to be eligible to that and to the other branch. In substance, these questions resolved themselves into the inquiry, in whom was the power of governing America to be vested; for it is to be remembered that, according to a decision of the Convention not yet reversed, the national executive was to be chosen by the national legislature. So far as the people of the United States had evinced any distinct purpose, at the time when this Convention was assembled, it appeared to be well settled that the new system of government, whatever else it might be, should be republican in its form and spirit. When the States had assembled in Convention, it became the result of a necessary compromise between them, that the appointment of one branch of the legislature should be vested in the people of the several States. But who were to be regarded as the people of a State, for this purpose, was a question of great magnitude, now to be considered. The situation of the country, in reference to this as well as to many other important questions, was peculiar. The streams of emigration, which began to flow into it from Europe at the first settlement of the different Colonies, had been interrupted only by the war of the Revolution. On the return of peace, the tide of emigration again began to set towards the new States, which had risen into independent existence on the western shores of the Atlantic by a struggle for freedom that had attracted the attention of the whole civilized world; and when the Constitution of the United States was about to be framed, large and various classes of individuals in the different countries of Europe were eagerly watching the result of the experiment. It appeared quite certain that great accessions of population would follow the establishment of free institutions in America, if they should be framed in a liberal and comprehensive spirit. It became necessary, therefore, to meet and provide for the presence in the country of great masses of persons not born upon the soil, who had not participated in the efforts by which its freedom had been acquired, and who would bring with them widely differing degrees of intelligence and of fitness to take part in the administration of a free government. The place that was to be assigned to these persons in the political system of the country was a subject of much solicitude to its best and most thoughtful statesmen. On the one hand, all were aware that there existed among the native populations of the States a very strong American feeling, engendered by the war, and by the circumstances attending its commencement, its progress, and its results. It was a war begun and prosecuted for the express purpose of obtaining and securing, for the people who undertook it, the right of self-government. It necessarily created a great jealousy of foreign influence, whether exerted by governments or individuals, and a strong fear that individuals would be made the agents of governments in the exercise of such influence. The political situation of the country under the Confederation had increased rather than diminished these apprehensions. The relations of the States with each other and with foreign nations, under a system which admitted of no efficient national legislation binding upon all alike, afforded, or were believed to afford, means by which the policy of other countries could operate on our interests with irresistible force. There was, therefore, among the people of the United States, and among their statesmen who were intrusted with the formation of the Constitution, a firmly settled determination, that the institutions and legislation of the country should be effectually guarded against foreign control or interference. On the other hand, it was extremely important that nothing should be done to prevent the immigration from Europe of any classes of men who were likely to become useful citizens. The States which had most encouraged such immigration had advanced most rapidly in population, in agriculture, and the arts. There were, too, already in the country many persons of foreign birth, who had thoroughly identified themselves with its interests and its fate, who had fought in its battles, or contributed of their means to the cause of its freedom; and some of these men were at this very period high in the councils of the nation, and even occupied places of great importance in the Convention itself.[132] They had been made citizens of the States in which they resided, by the State power of naturalization; and they were in every important sense Americans. It was impossible, therefore, to adopt a rule that would confine the elective franchise, or the right to be elected to office, to the native citizens of the States. The States themselves had not done this; and the institutions of the United States could not rest on a narrower basis than the institutions of the States. Another difficulty which attended the adjustment of the right of suffrage grew out of the widely differing qualifications annexed to that right under the State constitutions, and the consequent dissatisfaction that must follow any effort to establish distinct or special qualifications under the national Constitution. In some of the States, the right of voting was confined to "freeholders"; in others,--and by far the greater number,--it was extended beyond the holders of landed property, and included many other classes of the adult male population; while in a few, it embraced every male citizen of full age who was raised at all above the level of the pauper by the smallest evidence of contribution to the public burdens. The consequence, therefore, of adopting any separate system of qualifications for the right of voting under the Constitution of the United States would have been, that, in some of the States, there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State constitution might have enjoyed it in national elections. This embarrassment, however, did not extend to the qualifications which it might be thought necessary to establish for the right of being elected to office under the general government. As the State and the national governments were to be distinct systems, and the officers of each were to exercise very different functions, it was both practicable and expedient for the Constitution of the United States to define the persons who should be eligible to the offices which it created. At the same time, in relation to both of these rights--that of electing and that of being elected to national offices--it was highly necessary that the national authority, either by direct provision of the Constitution, or by a legislative power to be exercised under it, should determine the period when the rights of citizenship could be acquired by persons of foreign birth. From the first establishment of the State governments down to the present period, those governments had possessed the power of naturalization. Their rules for the admission of foreigners to the privileges of citizenship were extremely unlike; and if the power of prescribing the rule were to be left to them, and the Constitution of the United States were to adopt the qualifications of voters fixed by the laws of the States, or were to be silent with respect to the qualifications of its own officers, the rights both of electing and of being elected to national office would, in respect to citizenship, be regulated by no uniform principle. If, therefore, the right of voting for any class of federal officers were to be in each State the same as that given by the State laws for the election of any class of State officers, it was quite essential that the States should surrender to the general government the power to determine, as to persons of foreign birth, what period of residence in the country should be required for the rights of citizenship. It was equally necessary that the national government should possess this power, if it was intended that citizenship should be regarded at all in the selection of those who were to fill the national offices. The committee of detail, after a review of all these considerations, presented a scheme that was well adapted to meet the difficulties of the case. They proposed that the same persons who, by the laws of the several States, were admitted to vote for members of the most numerous branch of their own legislatures, should have the right to vote for the representatives in Congress. The adoption of this principle avoided the necessity of disfranchising any portion of the people of a State by a system of qualifications unknown to their laws. As the States were the best judges of the circumstances and temper of their own people, it was certainly best to conciliate them to the support of the new Constitution by this concession. It was possible, indeed, but not very probable, that they might admit foreigners to the right of voting without the previous qualification of citizenship. It was possible, too, that they might establish universal suffrage in its most unrestricted sense. But against all these evils there existed one great security; namely, that the mischiefs of an absolutely free suffrage would be felt most severely by themselves in their domestic concerns; and against the special danger to be apprehended from the indiscriminate admission of foreigners to the right of voting, another feature of the proposed plan gave the national legislature power to withhold from persons of foreign birth the privileges of general citizenship, although a State might confer upon them the power of voting without previous naturalization. This part of the scheme consisted in the transfer of the power of naturalization to the general government; a power that was necessarily made exclusive, by being made a power to establish a _uniform_ rule on the subject. These provisions were not only necessary in the actual situation of the States, but they were also in harmony with the great purpose of the representative system that had been agreed upon as the basis of one branch of the legislative power. In that branch the people of each State were to be represented; but they were to remain the people of a distinct community, whose modes of exercising the right of self-government would be peculiar to themselves; and that would obviously be the most successful representation of such a people in a national assembly, which most conformed itself to their habits and customs in the organization of their own legislative bodies. Accordingly, although very strenuous efforts were made to introduce into the Constitution of the United States particular theories with regard to popular suffrage,--some of the members being in favor of one restriction and some of another,--the rule which referred the right in each State to its domestic law was sustained by a large majority of the Convention. But the power that was given, by unanimous consent, over the subject of naturalization, shows the strong purpose that was entertained of vesting in the national authority an efficient practical control over the States in respect to the political rights to be conceded to persons not natives of the country.[133] As we have already seen, the committee of detail had been instructed to report qualifications of property and citizenship for the members of every department of the government. But they found the subject so embarrassing, that they contented themselves with providing that the legislature of the United States should have authority to establish such uniform qualifications for the members of each house, with regard to property, as they might deem expedient.[134] They introduced, however, into their draft of a Constitution, an express provision that every member of the House of Representatives should be of the age of twenty-five years at least, should have been a citizen of the United States for at least three years before his election, and should be, at the time of his election, a resident in the State in which he might be chosen.[135] A property qualification for the members of the House of Representatives was a thing of far less consequence than the fact of citizenship. Indeed, there might well be a doubt, whether a requisition of this kind would not be in some degree inconsistent with the character that had already been impressed upon the government, by the compromise which had settled the nature of the representation in the popular branch. It was to be a representation of the people of the States; and as soon as it was determined that the right of suffrage in each State should be just as broad as the legislative authority of the State might see fit to make it, the basis of the representation became a democracy, without any restrictions save those which the people of each State might impose upon it for themselves. If then the Constitution were to refrain from imposing on the electors a property qualification, for the very purpose of including all to whom the States might concede the right of voting within their respective limits, thus excluding the idea of a special representation of property, it was certainly not necessary to require the possession of property by the representatives, or to clothe the national legislature with power to establish such a qualification. The clause reported by the committee of detail for this purpose was accordingly left out of the Constitution.[136] But with respect to citizenship, as a requisite for the office of a representative or a senator, very different considerations applied. With whatever degree of safety the States might be permitted to determine who should vote for a representative in the national legislature, it was necessary that the Constitution itself should meet and decide the grave questions, whether persons of foreign birth should be eligible at all, and if so, at what period after they had acquired the general rights of citizens. It seems highly probable, from the known jealousies and fears that were entertained of foreign influence, that the eligibility to office would have been strictly confined to natives, but for a circumstance to which allusion has already been made. The presence of large numbers of persons of foreign birth, who had adopted, and been adopted by, some one of the States, who stood on a footing of equality with the native inhabitants, and some of whom had served the country of their adoption with great distinction and unsuspected fidelity, was the insuperable obstacle to such a provision. The objection arising from the impolicy of discouraging future immigration had its weight; but it had not the decisive influence which was conceded to the position of those foreigners already in the country and already enjoying the rights of citizenship under the laws and constitutions of the several States. That men should be perpetually ineligible to office under a constitution which they had assisted in making, could not be said to be demanded by the people of America. The subject, therefore, was found of necessity to resolve itself into the question, what period of previous citizenship should be required. The committee of detail proposed three years. Other members desired a much longer period. Hamilton, on the other hand, supported by Madison, proposed that no definite time should be established by the Constitution, and that nothing more should be required than citizenship and inhabitancy. He thought that the discretionary power of determining the rule of naturalization would afford the necessary means of control over the whole subject. But this plan did not meet the assent of a majority of the States, and, after various periods had been successively rejected, the term of seven years' citizenship as a qualification of members of the House of Representatives was finally established. But was this qualification to apply to those foreigners who were then citizens of the States, and who, as such, would have the right to vote on the acceptance of the Constitution? Were they to be told that, although they could ratify the Constitution, they could not be eligible to office under it, until they had enjoyed the privileges of citizenship for seven years? They had been invited hither by the liberal provisions of the State institutions; they had been made citizens by the laws of the State where they resided; the Articles of Confederation gave them the privileges of citizens in every other State; and thus the very communities by which this Convention had been instituted were said to have pledged their public faith to these persons, that they should stand upon an equality with all other citizens. It is a proof that their case was thought to be a strong one, and it is a striking evidence of the importance attached to the principles involved, that an effort was made to exempt them from the operation of the rule requiring a citizenship of seven years, and that it was unsuccessful.[137] It is impossible now to determine how numerous this body of persons were, in whose favor the attempt was made to establish an exception to the rule; and their numbers constitute a fact that is now historically important only in its bearing upon a principle of the Constitution. From the arguments of those who sought to introduce the exception, it appears that fears were entertained that the retrospective operation of the rule would expose the acceptance of the Constitution to great hazards; for the States, it was said, would be reduced to the dilemma of rejecting it, or of violating the faith pledged to a part of their citizens. Accordingly, the implied obligation of the States to secure to their citizens of foreign birth the same privileges with natives was urged with great force, and it was inferred from the notorious inducements that had been held out to foreigners to emigrate to America, and to avail themselves of the easy privileges of citizenship. Whether the United States were in any way bound to redeem these alleged pledges of the States, was a nice question of casuistry, that was a good deal debated in the discussion. But in truth there was no obligation of public faith in the case, the disregard of which could be justly made a matter of complaint by anybody. When the States had made these persons citizens, and through the Articles of Confederation had conferred upon them the privileges of citizens in every State in the Union, they did not thereby declare that such adopted citizens should be immediately eligible to any or all of the offices under any new government which the American people might see fit to establish at any future time. To have said that they never should be eligible, would have been to establish a rule that would have excluded some of the most eminent statesmen in the country. But the period in their citizenship when they should be made eligible, was just as much an open question of public policy, as the period of life at which all native and all adopted citizens should be deemed fit to exercise the functions of legislators. If the citizen of foreign birth was disfranchised by the one requirement, the native citizen was equally disfranchised by the other, until the disability had ceased. The question was decided, therefore, and rightly so, upon large considerations of public policy; and the principal reasons that exercised a controlling influence upon the decision, and caused the refusal to establish any exception to the rule, afford an interesting proof of the national tone and spirit that were intended to be impressed upon the government at the beginning of its history. It was quite possible, as all were ready to concede, that the time might arrive, when the qualification of so extended a period of citizenship as seven years might not be practically very important; since the people, after having been long accustomed to the duty of selecting their representatives, would not often be induced to confer their suffrages upon a foreigner recently admitted to the position of a citizen. The mischiefs, too, that might be apprehended from such appointments would be far less, after the policy of the government had been settled and the fundamental legislation necessary to put the Constitution into activity had been accomplished. But the first Congress that might be assembled under the Constitution would have a work of great magnitude and importance to perform. Indeed, the character which the government was to assume would depend upon the legislation of the few first years of its existence. Its commercial regulations would then be mainly determined. The relations of the country with foreign nations, its position towards Europe, its rights and duties of neutrality, its power to maintain a policy of its own, would all then be ascertained and settled. Nothing, therefore, could be more important, than to prevent persons having foreign attachments from insinuating themselves into the public councils; and with this great leading object in view, the Convention refused, though by a mere majority only of the States, to exempt from the rule those foreigners who had been made citizens under the naturalization laws of the States.[138] Thus it appears that the Constitution of the United States discloses certain distinct purposes with reference to the participation of foreigners in the political concerns of the country. In the first place, it was clearly intended that there should be no real discouragement to immigration. The position and history of the country from its first settlement, its present and prospective need of labor and capital, its territorial extent, and the nature of its free institutions, were all inconsistent with any policy that would prevent the redundant population of Europe from finding in it an asylum. Accordingly, the emigrant from foreign lands was placed under no perpetual disqualifications. The power of naturalization that was conferred upon the general government, and the accompanying circumstances attending its transfer by the States, show an intention that some provision should be made for the admission of emigrants to the privileges of citizenship, and that in this respect the inducements to a particular residence should be precisely equal throughout the whole of the States. The power was not to remain dormant, under ordinary circumstances, although there might undoubtedly be occasions when its exercise should be suspended. The intention was, that the legislature of the United States should always exercise its discretion on the subject; but the existence of the power, and the reasons for which it was conferred, made it the duty of the legislature to exercise that discretion according to the wants of the country and the requirements of public policy. In the second place, it is equally clear that the founders of the government intended that there should be a real, as well as formal, renunciation of allegiance to the former sovereign of the emigrant,--a real adoption, in principle and feeling, of the new country to which he had transferred himself,--an actual amalgamation of his interests and affections with the interests and affections of the native population,--before he should have the power of acting on public affairs. This is manifest, from the discretionary authority given to Congress to vary the rule of naturalization from time to time as circumstances might require,--an authority that places the States under the necessity of restricting their right of suffrage to citizens, if they would avoid the evils to themselves of an indiscriminate exercise of that right by all who might choose to claim it. The period of citizenship, too, that was required as a qualification for a seat in the popular branch of the government, and which was extended to nine years for the office of senator, was placed out of the discretionary power of change by the legislature, in order that an additional term, beyond that required for the general rights of citizenship, might for ever operate to exclude the dangers of foreign predilections and an insufficient knowledge of the duties of the station. No one who candidly studies the institutions of America, and considers what it was necessary for the founders of our government to foresee and provide for, can hesitate to recognize the wisdom and the necessity of these provisions. A country of vast extent opened to a boundless immigration, which nature invited and which man could scarcely repel,--a country, too, which must be governed by popular suffrage,--could not permit its legislative halls to be invaded by foreign influence. The independence of the country would have been a vain and useless achievement, if it had not been followed by the practical establishment of the right of self-government by the native population; and that right could be secured for their posterity only by requiring that foreigners, who claimed to be regarded as a part of the people of the country, should be first amalgamated in spirit and interest with the mass of the nation. No other changes were made in the proposed qualifications for the representatives, excepting to require that the person elected should be an _inhabitant_ of the State for which he might be chosen, at the time of election, instead of being a _resident_. This change of phraseology was adopted to avoid ambiguity; the object of the provision being simply to make the representation of the State a real one. The Convention, as we have seen, had settled the rule for computing the number of inhabitants of a State, for the purposes of representation, and had made it the same with that for apportioning direct taxes among the States.[139] The committee of detail provided that there should be one representative for every forty thousand inhabitants, when Congress should find it necessary to make a new apportionment of representatives; a ratio that had not been previously sanctioned by a direct vote of the Convention, but which had been recommended by the committee of compromise, at the time when the nature of the representation in both houses was adjusted.[140] This ratio was now adopted in the article relating to the House of Representatives; but not before an effort was made to exclude the slaves from the enumeration.[141] The renewed discussion of this exciting topic probably withdrew the attention of members from the consideration of the numbers of the representatives, and nothing more was done, at the time we are now examining, than to make a provision that the number should not exceed one for every forty thousand inhabitants. But at a subsequent stage of the proceedings,[142] before the Constitution was sent to the committee of revision, Wilson, Madison, and Hamilton endeavored to procure a reconsideration of this clause, for the purpose of establishing a more numerous representation of the people. Hamilton, who had always and earnestly advocated the introduction of a strong democratic element into the Constitution, although he desired an equally strong check to that element in the construction of the Senate, is represented to have expressed himself with great emphasis and anxiety respecting the representation in the popular branch. He avowed himself, says Mr. Madison, a friend to vigorous government, but at the same time he held it to be essential that the popular branch of it should rest on a broad foundation. He was seriously of opinion, that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties.[143] But the motion to reconsider was lost,[144] and it was not until the Constitution had been engrossed, and was about to be signed, that an alteration was agreed to, at the suggestion of Washington. This was the only occasion on which he appears to have expressed an opinion upon any question depending in the Convention. With the habitual delicacy and reserve of his character, he had confined himself strictly to the duties of a presiding officer, throughout the proceedings. But now, as the Constitution was likely to go forth with a feature that would expose it to a serious objection, he felt it to be his duty to interpose. But it was done with great gentleness. As he was about to put the question, he said that he could not forbear expressing his wish that the proposed alteration might take place. The smallness of the proportion of representatives had been considered by many members, and was regarded by him, as an insufficient security for the rights and interests of the people. Late as the moment was, it would give him much satisfaction to see an amendment of this part of the plan adopted. The intimation was enough; no further opposition was offered, and the ratio was changed to one representative for thirty thousand inhabitants.[145] It is now necessary to trace the origin of a peculiar power of the House of Representatives, that is intimately connected with the practical compromises on which the government was founded, although the circumstances and reasons of its introduction into the Constitution are not generally understood. I refer to the exclusive power of originating what are sometimes called "money bills." In making this provision, the framers of our government are commonly supposed to have been guided wholly by the example of the British constitution, upon an assumed analogy between the relations of the respective houses in the two countries to the people and to each other. This view of the subject is not wholly correct. At an early period in the deliberations, when the outline of the Constitution was prepared in a committee of the whole, a proposition was brought forward to restrain the Senate from originating money bills, upon the ground that the House would be the body in which the people would be the most directly represented, and in order to give effect to the maxim which declares that the people should hold the purse-strings. The suggestion was immediately encountered by a general denial of all analogy between the English House of Lords and the body proposed to be established as the American Senate. In truth, as the construction of the Senate then stood in the resolutions agreed to in the committee of the whole, the supposed reason for the restriction in England would have been inapplicable; for it had been voted that the representation in the Senate should be upon the same proportionate rule as that of the House, although the members of the former were to be chosen by the legislatures, and the members of the latter by the people, of the States. It was rightly said, therefore, at this time, that the Senate would represent the people as well as the House; and that if the reason in England for confining the power to originate money bills to the House of Commons was that they were the immediate representatives of the people, the reason had no application to the two branches proposed for the Congress of the United States.[146] It was however admitted, that, if the representation in the Senate should not finally be made a proportionate representation of the people of the several States, there might be a cause for introducing this restriction.[147] This intimation referred to a reason that subsequently became very prominent. But when first proposed, the restriction was rejected in the committee by a vote of seven States against three; there being nothing involved in the question at that time excepting the theoretical merits of such a distinction between the powers of the two houses.[148] But other considerations afterwards arose. When the final struggle came on between the larger and the smaller States, upon the character of the representation in the two branches, the plan of restricting the origin of money bills to the House of Representatives presented itself in a new aspect. The larger States were required to concede an equality of representation in the Senate; and it was supposed, therefore, that they would desire to increase the relative power of the branch in which they would have the greatest numerical strength. The five States of Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina had steadily resisted the equality of votes in the Senate. When it was at length found that the States were equally divided on this question, and it became necessary to appoint the first committee of compromise, the smaller States tendered to the five larger ones the exclusive money power of the House, as a compensation for the sacrifice required of them. It was so reported by the committee of compromise; and although it met with resistance in the Convention, and was denied to be a concession of any importance to the larger States, it was retained in the report,[149] and thus formed a special feature of the resolutions sent to the committee of detail. But those resolutions had also established the equality of representation in the Senate, and the whole compromise, with its several features, had therefore been once fully ascertained and settled. A strong opposition, nevertheless, continued to be made to the exclusive money power of the House, by those who disapproved of it on its merits; and when the article by which it was given in the reported draft prepared by the committee of detail was reached, it was stricken out by a very large vote of the States.[150] In this vote there was a concurrence of very opposite purposes on the part of the different States composing the majority. New Jersey, Delaware, and Maryland, for example, feeling secure of their equality in the Senate, were not unwilling to allow theoretical objections to prevail, against the restriction of money bills to the branch in which they would necessarily be outnumbered. On the other hand, some of the delegates of Pennsylvania, Virginia, and South Carolina, still unwilling to acquiesce in the equality of representation in the Senate, may have hoped to unhinge the whole compromise. There was still a third party among the members, who insisted on maintaining the compromise in all its integrity, and who considered that the nature of the representation in the Senate, conceded to the wishes of the smaller States, rendered it eminently fit that the House alone should have the exclusive power to originate money bills.[151] This party finally prevailed. They rested their first efforts chiefly upon the fact that the Senate was to represent the States in their political character. Although it might be proper to give such a body a negative upon the appropriations to be made by the representatives of the people, it was not proper that it should tax the people. They first procured a reconsideration of the vote which had stricken out this part of the compromise. They then proposed, in order to avoid an alleged ambiguity, that bills for raising money for the purpose of _revenue_, or appropriating money, should originate in the House, and should not be so amended or altered in the Senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation.[152] An earnest and somewhat excited debate followed this proposition, but it was lost.[153] In a day or two, however, another effort was made, conceding to the Senate the power to amend, as in other cases, but confining the right to the House of originating bills for raising money for the purpose of revenue, or for appropriating the same, and for fixing the salaries of officers of the government.[154] This new proposition was postponed for a long time, until it became necessary to refer several topics not finally acted upon to a committee of one member from each State.[155] Among these subjects there was one that gave rise to protracted conflicts of opinion, which will be examined hereafter. It related to the mode of choosing the executive. In the plan reported by the committee of detail, pursuant to the instructions of the Convention, the executive was to be chosen by the national legislature, for a period of seven years, and was to be ineligible a second time. Great efforts were subsequently made to change both the mode of appointment and the tenure of the office, and the whole subject was finally referred with others to a committee. In this committee, a new compromise, which has attracted but little attention, embraced the long-contested point concerning the origin of money bills. In this compromise, as in so many of the others on which the Constitution was founded, two influences are to be traced. There were in the first place what may be called the merits of a proposition, without regard to its bearing on the interests of particular States; and in the second place there were the local or State interests, which entered into the treatment of every question by which they could be affected. In studying the compromises of the Constitution, it is constantly necessary to observe how the arrangement finally made was arrived at by the concurrence of votes given from these various motives. It was now proposed in the new committee, that the executive should be chosen by electors, appointed by each State in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; that the person having the greatest number of votes, provided it were a majority of the electors, should be declared elected; that if there should be more than one having such a majority, the Senate should immediately choose one of them by ballot; and that if no person had a majority, the Senate should immediately choose by ballot from the five highest candidates on the list returned by the electors. This plan of vesting the election in the Senate, in case there should be no choice by the electors, was eagerly embraced by the smaller States, because it was calculated to restore to them the equilibrium which they would lose in the primary election, by the preponderance of votes held by the larger States. At the same time, it gave to the larger States great influence in bringing forward the candidates, from whom the ultimate choice must be made, when no choice had been effected by the electors; and it put it in their power, by a combination of their interests against those of the smaller States, to choose their candidate at the first election. To this great influence, many members from the larger States desired, naturally, to add the privilege of confining the origin of revenue bills to the House of Representatives. They found in the committee some members from the smaller States willing to concede this privilege, as the price of an ultimate election of the executive by the Senate, and of other arrangements which tended to elevate the tone of the government, by increasing the power and influence of the Senate. They found others also who approved of it upon principle. The compromise was accordingly effected in the committee, and in this attitude the question concerning revenue bills again came before the Convention.[156] But there, a scheme that seemed likely to elevate the Senate into a powerful oligarchy, and that would certainly put it in the power of seven States, not containing a third of the people, to elect the executive, when there failed to be a choice by the electors, met with strenuous resistance. For these and other reasons, not necessary to be recounted here, the ultimate choice of the executive was transferred from the Senate to the House of Representatives.[157] This change, if coupled with the concession of revenue bills to the House, without the right to amend in the Senate, would have thrown a large balance of power into the former assembly; and in order to prevent this inequality, a provision was made, in the words used in the Constitution of Massachusetts, that the Senate might propose or concur with amendments, as on other bills. With this addition, the restriction of the origin of bills for raising revenue to the House of Representatives finally passed, with but two dissentient votes.[158] The qualifications of the Senators had been made superior in some respects to those of the members of the House of Representatives, on account of the peculiar duties which it was intended they should discharge, and the length of their term of office. They were to be of the age of thirty years; to be inhabitants of the States for which they might be chosen; and in the report of the committee of detail the period of four years' citizenship was made one of the requirements. But so great was the jealousy of foreign influence, and so important was the position of a senator likely to become, that, when this particular qualification came to be considered, it was found to be altogether impossible to make so short a period of citizenship acceptable to a majority. According to the plan then contemplated, the Senate was to be a body of great power. Its legislative duties were to form but a part of its functions. It was to have the making of treaties, and the appointment of ambassadors and judges of the Supreme Court, without the concurrent action of any other department of the government. In addition to these special powers, it was to have a concurrent vote with the House of Representatives in the election of the executive. It was also to exercise the judicial function of hearing and determining questions of boundary between the States. This formidable array of powers, which were subsequently much modified or entirely taken away, but which no one could then be sure would not be retained as they had been proposed, rendered it necessary to guard the Senate with peculiar care. A very animated discussion, in which the same reasons were urged on both sides which had entered into the debate on the qualifications of the representatives, enforced by the peculiar dangers to which the Senate might be exposed, at length resulted in a vote establishing the period of nine years' citizenship as a qualification for the office of a senator.[159] The origin of the number of senators and of the method of voting forms an interesting and important topic, to which our inquiries should now be directed. We have already seen that, in the formation of the Virginia plan of government, as it was digested in the committee of the whole, the purpose was entertained, and was once sanctioned by a bare majority of the States, of giving to both branches of the legislature a proportional representation of the respective populations of the States; and that the sole difference between the two chambers then contemplated was to be in the mode of election. But in the actual situation of the different members of the confederacy, it was a necessary consequence of such a representation, that the Senate would be made by it inconveniently large, whether the members were to be elected by the legislatures, the executives, or the people of the States. It would, in fact, have made the first Senate to consist of eighty or a hundred persons, in order to have entitled the State of Delaware to a single member. This inconvenience was pointed out at an early period, by Rufus King;[160] but it did not prevent the adoption of this mode of representation. On the one side of that long contested question were those who desired to found the whole system of representation, as between the States, upon their relative numbers of inhabitants. On the other side were those who insisted upon an absolute equality between the States. But among the former there was a great difference of opinion as to the best mode of choosing the senators,--whether they should be elected by the people in districts, by the legislatures or the executives of the States, or by the other branch of the national legislature. So strongly, however, were some of the members even from the most populous States impressed with the necessity of preserving the State governments in some connection with the national system, that, while they insisted on a proportional representation in the Senate, they were ready to concede to the State legislatures the choice of its members, leaving the difficulty arising from the magnitude of the body to be encountered as it might be.[161] The delegates of the smaller States accepted this concession, in the belief that the impracticability of constructing a convenient Senate in this mode would compel an abandonment of the principle of unequal representation, and would require the substitution of the equality for which they contended. In this expectation they were not disappointed; for when the system framed in the committee came under revision in the Convention, and the severe and protracted contest ended at last in the compromise described in a previous chapter, the States were not only permitted to choose the members of the Senate, but they were admitted to an equality of representation in that branch, and the subject was freed from the embarrassment arising from the numbers that must have been introduced into it by the opposite plan. From this point, the sole questions that required to be determined related to the number of members to be assigned to each State, and the method of voting. The first was a question of expediency only; the last was a question both of expediency and of principle. The constant aim of the States, which had from the first opposed a radical change in the structure of the government, was to frame the legislature as nearly as possible upon the model of the Congress of the Confederation. In that assembly, each State was allowed not more than seven, and not less than two members; but in practice, the delegations of the States perpetually varied between these two numbers, or fell below the lowest, and in the latter case the State was not considered as represented. The method of voting, however, rendered it unimportant how many members were present from a State, provided they were enough to cast the vote of the State at all; for all questions were decided by the votes of a majority of the States, and not of a majority of the members voting. I have already had occasion more than once to notice the fact,--and it is one of no inconsiderable importance,--that the first Continental Congress, assembled in 1774, adopted the plan of giving to each Colony one vote, because it was impossible to ascertain the relative importance of the different Colonies. The record that was then made of this reason for a method of voting that would have been otherwise essentially unjust, shows quite clearly that a purpose was then entertained of adopting some other method at a future time. But when the Articles of Confederation were framed, in 1781, it appears as clearly from the discussions in Congress, not only that the same difficulty of obtaining the information necessary for a different system continued, but that some of the States were absolutely unwilling to enter the Confederation upon any other terms than a full federal equality. In this way the practice of voting by States in Congress was perpetuated down to the year 1787. It had come to be regarded by some of the smaller States, notwithstanding the injustice and inconvenience which it constantly produced, as a kind of birthright; and when the Senate of the United States came to be framed, and an equality of representation in it was conceded, some of the members of those States still considered it necessary to preserve this method of voting, in order to complete the idea of State representation, and to enable the States to protect their individual rights.[162] But it is obvious that, for this purpose, the question had lost its real importance, when an equal number of Senators was assigned to each State; since, upon every measure that can touch the separate rights and interests of a State, the unanimity which is certain to prevail among its representatives makes the vote of the State as efficient as it could be if it were required to be cast as a unit, while the chances for its protection are increased by the opportunity of gaining single votes from the delegations of other States. These and similar considerations ultimately led a large majority of the States to prefer a union of the plan of an equal number of senators from each State with that which would allow them to vote _per capita_.[163] The number of two was adopted as the most convenient, under all the circumstances, because most likely to unite the despatch of business with the constant presence of an equal number from every State. With this peculiar character, the outline of the institution went to the committee of detail. On the consideration of their report, these provisions, as we have seen, became complicated with the restriction of "money bills" to the House of Representatives, and the choice of the executive. The mode in which those controversies were finally settled being elsewhere stated, it only remains here to record the fact that the particular nature and form of the representation in the Senate was generally acquiesced in, when its relations to the other branches of the government had been determined. The difference of origin of the two branches of the legislature made it necessary to provide for different modes of supplying the vacancies that might occur in them. The obvious way of effecting this in the case of a vacancy in the office of a representative was to order a new election by the people, who can readily assemble for such a purpose; and the duty of ordering such elections was imposed on the executives of the States, because those functionaries would be best informed as to the convenience of their meeting. But the State legislatures, to whom the choice of senators was to be confided, would be in session for only a part of the year; and to summon them for the special purpose of filling a vacancy in the Senate might occasion great inconvenience. The committee of detail, therefore, provided that vacancies in the Senate might be supplied by the executive of the State until the next meeting of its legislature. It is now time to turn to the examination of that great scheme of separate and concurrent powers, which it had been proposed to confer upon the Senate, and the suggestion of which influenced to a great degree the qualifications of the members, their term of office, and indeed the entire construction of this branch of the legislature. The primary purpose of a Senate was that of a second legislative chamber, having equal authority in all acts of legislation with the first, the action of both being necessary to the passage of a law. As the formation of the Constitution proceeded, from the single idea of such a second chamber, without any special character of representation to distinguish it from the first, up to the plan of an equal representation of the States, there was a strong disposition manifested to accumulate power in the body for which this peculiar character had been gained. It had been made the depositary of a direct and equal State influence; and this feature of the system had become fixed and irrevocable before the powers of the other departments, or their origin or relations, had been finally settled. The consequence was, that for a time, wherever jealousy was felt with regard to the executive or the judiciary,--wherever there was a doubt about confiding in the direct action of the people,--wherever a chasm presented itself, and the right mode of filling it did not occur,--there was a tendency to resort to the Senate. Thus, when the committee of detail were charged with the duty of preparing the Constitution according to the resolutions agreed upon in the Convention, the Senate had not only been made a legislative body, with authority co-ordinate to that of the House, but it had received the separate power of appointing the judges, and the power to give a separate vote in the election of the executive. The power to make war and treaties, the appointment of ambassadors, and the trial of impeachments, had not been distinctly given to any department; but the general intention to be inferred from the resolutions was, that these matters should be vested in one or both of the two branches of the legislature. To the executive, the duty had been assigned, which the name of the office implies, of executing the laws; to which had been added a revisionary check upon legislation, and the appointment to offices in cases not otherwise provided for. The judicial power had been described in general and comprehensive terms, which required a particular enumeration of the cases embraced by the principles laid down; but it had not been distinctly foreseen, that one of the cases to which those principles must lead would be an alleged conflict between an act of legislation and the fundamental law of the Constitution. The system thus marked out was carried into detail by the committee, by vesting in the Senate the power to make treaties, to appoint ambassadors and judges of the Supreme Court, and to adjudicate questions of boundary between the States; by giving to the two branches of the legislature the power to declare war; by assigning the trial of impeachments to the Supreme Court, and enumerating the other cases of which it was to have cognizance; and by providing for the election of the executive by the legislature, and confining its powers and duties to those prescribed for it by the resolutions. It is scarcely necessary to pause for the purpose of commenting on the practical inconveniences of some of these arrangements. However proper it may be, in a limited and republican government, to vest the power of declaring war in the legislative department, the negotiation of treaties by a numerous body had been found, in our own experience, and in that of other republics, extremely embarrassing. However wise may be a jealousy of the executive department, it is difficult to say that the same authority that is intrusted with the appointment to all other offices should not be permitted to make an ambassador or a judge. However august may be a proceeding that is to determine a boundary between sovereign States, it is nothing more and nothing less than a strictly judicial controversy, capable of trial in the ordinary forms and tribunals of judicature, besides being one that ought to be safely removed from all political influences. However necessary it may be that an impeachment should be conducted with the solemnities and safeguards of allegation and proof, it is not always to be decided by the rules with which judges are most familiar, or to be determined by that body of law which it is their special duty to administer. However desirable it may be, that an elective chief magistracy should be filled with the highest capacity and fitness, and that popular tumults should be avoided, no government has yet existed, in which the election of such a magistrate by the legislative department has afforded any decided advantage over an election directly or indirectly by the people; and to give a body constituted as the American Senate is a negative in the choice of the executive, would be certainly inconvenient, probably dangerous. But the position of the Senate as an assembly of the States, and certain opinions of its superior fitness for the discharge of some of these duties, had united to make it far too powerful for a safe and satisfactory operation of the government. It was found to be impossible to adjust the whole machine to the quantity of power that had been given to one of its parts. It was eminently just and necessary that the States should have an equal and direct representation in some branch of the government; but that a majority of the States, containing a minority of the people, should possess a negative in the appointment of the executive, and in the question of peace or war, and the sole voice in the appointment of judges and ambassadors, was neither necessary nor proper. Theoretically, it might seem appropriate that a question of boundary between any two of the States represented in it should be committed to the Senate, as a court of the peers of the sovereign parties to the dispute; but practically, this would be a tribunal not well fitted to try a purely judicial question. It became necessary, therefore, to discover the true limit of that control which the nature of the representation in the Senate was to be allowed to give to a majority of the States. There had been some effort, in the progress of the controversy respecting the representative system, to confine the equal power of the States, in matters of legislation, to particular questions or occasions; but it had turned out to be impracticable thus to divide or limit the ordinary legislative authority of the same body. If the Senate, as an equal assembly of the States, was to legislate at all, it must legislate upon all subjects by the same rule and method of suffrage. But when the question presented itself as to the separate action of this assembly,--how far it should be invested with the appointment of other functionaries, how far it should control the relations of the country with foreign nations, how far it should partake both of executive and judicial powers,--it was much less difficult to draw the line, and to establish proper limits to the direct agency of the States. Those limits could not indeed be ascertained by the mere application of theoretical principles. They were to be found in the primary necessity for reposing greater powers in other departments, for adjusting the relations of the system by a wider distribution of authority, and for confiding more and more in the intelligence and virtue of the people; and therefore it is, that, in these as in other details of the Constitution, we are to look for the clew that is to give us the purpose and design, quite as much to the practical compromises which constantly took place between opposite interests, as to any triumph of any one of opposite theories. The first experiment that was made towards a restriction of the power of the Senate, and an adjustment of its relations to the other departments, was the preparation of a plan, by which the President was to have the making of treaties, and the appointment of ambassadors, judges of the Supreme Court, and all other officers not otherwise provided for, by and with, the advice and consent of the Senate. The trial of impeachments, of the President included, was transferred to the Senate, and the trial of questions of boundary was placed, like other controversies between States, within the scope of the judicial power. The choice of the President was to be made in the first instance by electors appointed by each State, in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; but if no one of the persons voted for should have a majority of all the electors, or if more than one person should have both a majority and an equal number of votes, the Senate were to choose the President from the five highest candidates voted for by the electors. In this plan, there was certainly a considerable increase of the power of the President; but there was not a sufficient diminution of the power of the Senate. The President could nominate officers and negotiate treaties; but he must obtain the consent of the body by whom he might have been elected, and by whom his re-election might be determined, if he were again to become a candidate. It appeared, therefore, to be quite necessary, either to take away the revisionary control of the Senate over treaties and appointments, or to devise some mode by which the President could be made personally independent of that assembly. He could be made independent only by taking away all agency of the Senate in his election, or by making him ineligible to the office a second time. There were two serious objections to the last of these remedies,--the country might lose the services of a faithful and experienced magistrate, whose continuance in office would be highly important; and even in a case where no pre-eminent merit had challenged a re-election, the effect of an election by the Senate would always be pernicious, and must be visible throughout the whole term of the incumbent who had been successful over four other competitors. And after all, what necessity was there for confiding this vast power to the Senate, opening the door of a small body to the corruption and intrigue for which the magnitude of the prize to be gained and to be given, and the facility for their exercise, would furnish an enormous temptation? Was it so necessary that the States should force their equality of privilege and of power into every department of the Constitution, making it felt not only in all acts of legislation, but in the whole administration of the executive and judicial duties? Was nothing due to the virtue and sense and patriotism of a majority of the people of the United States? Might they not reasonably be expected to constitute a body of electors, who, chosen for the express purpose, and dissolved as soon as their function had been discharged, would be able to make an upright and intelligent choice of a chief magistrate from among the eminent citizens of the Union? Questions like these, posterity would easily believe, without the clear record that has descended to them, must have anxiously and deeply employed the framers of the Constitution. They were to consider, not only what was theoretically fit and what would practically work with safety and success, but what would be accepted by the people for whom they were forming these great institutions. That people undoubtedly detested everything in the nature of a monarchy. But there was another thing which they hated with equal intensity, and that was an oligarchy. Their experience had given them quite as much reason for abhorring the one as the other. Such, at least, was their view of that experience. A king, it is true, was the chief magistrate of the mother country against which they had rebelled, against which they had fought successfully for their independence. The measures that drove them into that resistance were executed by the monarch; but those measures were planned, as they believed, by a ministry determined to enslave them, and were sanctioned by a Parliament in which even the so-called popular branch was then but another phase of the aristocracy which ruled the empire. The worst enemy our grandfathers supposed they had in England, throughout their Revolution, was the ministerial majority of that House of Commons, made up of placemen sitting for rotten boroughs, the sons of peers, and the country gentlemen, who belonged to a caste as much as their first-cousins who sat by titles in the House of Lords. Our ancestors did not know--they went to their graves without knowing--that in the hard, implacable temper of the king, made harder and more implacable by a narrow and bigoted conscientiousness, was the real cause for the persistency in that fatal policy which severed these Colonies from his crown. That long struggle had been over for several years, and its result was certainly not to be regretted by the people of America. But it had left them, as it naturally must have left them, with as strong prejudices and jealousies against every aristocratic, as against every monarchical institution. Public liberty in England they knew might consist with an hereditary throne, and with a privileged and powerful aristocracy. But public liberty in America could consist with neither. The people of the United States could submit to restraints; they could recognize the necessity for checks and balances in the distribution of authority; and they understood as much of the science of government as any people then alive. But an institution,--however originating and however apparently necessary its peculiar construction might be,--embracing but a small number of persons, with power to elect the chief magistrate, with power to revise every appointment from a chief justice down to a tidewaiter, with power to control the President through his subordinate agents, with power to reject every treaty that he might negotiate, and with power to sit in judgment on his impeachment, they would not endure. "We have, in some revolutions of this plan of government," said Randolph, "made a bold stroke for monarchy. We are now doing the same for an aristocracy." How to attain the true intermediate ground, to avoid the substance of a monarchy and the substance of an aristocracy, and yet not to found the system on a mere democracy, was a problem not easy of solution. All could see, that a government extended over a country so large, which was to have the regulation of its commerce, the collection of great revenues, the care of a vast public domain, the superintendence of intercourse with hordes of savage tribes, the control of relations with all the nations of the world, the administration of a peculiar jurisprudence, and the protection of the local constitutions from violence, must have an army and a navy, and great fiscal, administrative, and judicial establishments, embracing a very numerous body of public officers. To give the appointment of such a multitude of public servants, invested with such functions, to the unchecked authority of the President, would be to create an executive with power not less formidable and real than that of some monarchs, and far greater than that of others. No one desired that a sole power of appointment should be vested in the President alone; it was universally conceded that there must be a revisionary control lodged somewhere, and the only question was where it should be placed. That it ought to be in a body independent of the executive, and not in any council of ministers that might be assigned to him, was apparent; and there was no such body, excepting the Senate, which united the necessary independence with the other qualities needful for a right exercise of this power. The negotiation of treaties was obviously a function that should be committed to the executive alone. But a treaty might undertake to dismember a State of part of its territory, or might otherwise affect its individual interests; and even where it concerned only the general interests of all the States, there was a great unwillingness to intrust the treaty-making power exclusively to the President. Here, the States, as equal political sovereignties, were unwilling to relax their hold upon the general government; and the result was that provision of the Constitution which makes the consent of two thirds of the Senators present necessary to the ratification of a treaty. But if it was to have these great overruling powers, the Senate must have no voice in the appointment of the executive. There were two modes in which the election might be arranged, so as to prevent a mutual connection and influence between the Senate and the President. The one was, to allow the highest number of electoral votes to appoint the President;[164] the other was, to place the eventual election--no person having received a majority of all the electoral votes--in the House of Representatives. The latter plan was finally adopted, and the Senate was thus effectually severed from a dangerous connection with the executive. This separation having been effected, the objections which had been urged against the length of the senatorial term became of little consequence. In the preparation of the plan marked out in the resolutions sent to the committee of detail, the Senate had been considered chiefly with reference to its legislative function; and the purpose of those who advocated a long term of office was to establish a body in the government of sufficient wisdom and firmness to interpose against the impetuous counsels and levelling tendencies of the democratic branch.[165] Six years was adopted as an intermediate period between the longest and the shortest of the terms proposed; and in order that there might be an infusion of different views and tendencies from time to time, it was provided that one third of the members should go out of office biennially.[166] Still, in the case of each individual senator, the period of six years was the longest of the limited terms of office created by the Constitution. Under the Confederation, the members of the Congress had been chosen annually, and were always liable to recall. The people of the United States were in general strongly disposed to a frequency of elections. A term of office for six years would be that feature of the proposed Senate most likely, in the popular mind, to be regarded as of an aristocratic tendency. If united with the powers that have just passed under our review, and if to those powers it could be said that an improper influence over the executive had been added, the system would in all probability be rejected by the people. But if the Senate were deprived of all agency in the appointment of the President, it would be mere declamation to complain of their term of office; for undoubtedly the peculiar duties assigned to the Senate could be best discharged by those who had had the longest experience in them. The solid objection to such a term being removed, the complaint of aristocratic tendencies would be confined to those who might wish to find plausible reasons for opposition, and might not wish to be satisfied with the true reasons for the provision. Having now described the formation and the special powers of the two branches of the legislature, I proceed to inquire into the origin and history of the disqualifications to which the members were subjected. The Constitution of the United States was framed and established by a generation of men, who had observed the operation upon the English legislature of that species of influence, by the crown or its servants, which, from the mode of its exercise, not seldom amounting to actual bribery, has received the appropriate name of parliamentary corruption. That generation of the American people knew but little--they cared less--about the origin of a method of governing the legislative body, which implies an open or a secret venality on the part of its members, and a willingness on the part of the administration to purchase their consent to its measures. What they did know and what they did regard was, that for a long succession of years the votes of members of Parliament had been bought, with money or office, by nearly every minister who had been at the head of affairs; that, if this practice had not been introduced under the prince who was placed upon the throne by the revolution of 1688, it had certainly grown to a kind of system in the hands of the statesmen by whom that revolution was effected, and had attained its greatest height under the first two princes of the house of Hanover; that it was freely and sometimes shamefully applied throughout the American war; and that, down to that day, no British statesman had had the sagacity to discover, and the virtue to adopt, a purer system of administration.[167] Whether this was a necessary vice of the English constitution; whether it was inherent or temporary; or whether it was only a stage in the development of parliamentary government, destined to pass away when the relations of the representative body to the people had become better settled,--could not then be seen even in England. But to our ancestors, when framing their Constitution, it presented itself as a momentous fact; whose warning was not the less powerful, because it came from the centre of institutions with which they had been most familiar, and from the country to which they traced their origin,--a country in which parliamentary government had had the fairest chances for success that the world had witnessed. Yet it would not have been easy at that time, as it is not at the present, and as it may never be, to define with absolute precision the true limits which executive influence with the legislative body should not be suffered to pass. Still less is it easy to say that such influence ought not to exist at all;[168] although it is not difficult to say that there are methods in which it should not be suffered to be exercised. The more elevated and more clear-sighted public morality of the present age, in England and in America, condemns with equal severity and equal justice both the giver and the receiver in every transaction that can be regarded as a purchase of votes upon particular measures or occasions, whatever may have been the consideration or motive of the bargain. But whether that morality goes, or ought to go, farther,--whether it includes, or ought to include, in the same condemnation, every form of influence by which an administration can add extrinsic weight to the merits of its measures,--is a question that admits of discussion. It may be said, assuming the good intentions of an administration, and the correctness of its policy and measures, that its policy and its measures should address themselves solely to the patriotism and sense of right of the members of the legislative department. But an ever active patriotism and a never failing sense of right are not always, if often, to be found; the members of a legislative body are men, with the imperfections, the failings, and the passions of men; and if pure patriotism and right perceptions of duty are alone relied upon, they may, and sometimes inevitably will be, found wanting. On the other hand, it is just as true, that the persons composing every administration are mere men, and that it will not do to assume their wisdom and good intentions as the sole foundations on which to rest the public security, leaving them at liberty to use all the appliances that may be found effectual for gaining right ends, and overlooking the character of the means. One of the principal reasons for the establishment of different departments, in the class of governments to which ours belongs, is, that perfect virtue and unerring wisdom are not to be predicated of any man in any station. If they were, a simple despotism would be the best and the only necessary form of government. All correct reasoning on this subject, and all true construction of governments like ours, must commence with two propositions, one of which embraces a truth of political science, and the other a truth of general morals. The first is, that, while the different functions of government are to be distributed among different persons, and to be kept distinctly separated, in order that there may be both division of labor and checks against the abuse of power, it is occasionally necessary that some room should be allowed for supplying the want of wisdom or virtue in one department by the wisdom or virtue of another. In matters of government depending on mere discretion, unlimited confidence cannot with safety be placed anywhere.[169] The other proposition is the very plain axiom in morals, that, while in all human transactions there may be bad means employed to effect a worthy object, the character of those means can never be altered, nor their use justified, by the character of the end. With these two propositions admitted, what is to be done is to discover that arrangement of the powers and relations of the different departments whose acts involve, more or less, the exercise of pure discretion, which will give the best effect to both of these truths; and as all government and all details of government, to be useful, must be practically adapted to the nature of man, it will be found that an approximation in practice to a perfect theory is all that can be attained. Thus the general duties and powers of the legislative and the executive departments are capable of distinct separation. The one is to make, the other is to execute the laws. But execution of the laws of necessity involves administration, and administration makes it necessary that there should be an executive policy. To carry out that policy requires new laws; authority must be obtained to do acts not before authorized; and supplies must be perpetually renewed. The executive stands therefore in a close relation to the legislative department;--a relation which makes it necessary for the one to appeal frequently, and indeed constantly, to the discretion of the other. If the executive is left at liberty to purchase what it believes or alleges to be the right exercise of that discretion, by the inducements of money or office applied to a particular case, the rule of common morals is violated; conscience becomes false to duty, and corruption, having once entered the body politic, may be employed to effect bad ends as well as good. Nay, as bad ends will stand most in need of its influence, it will be applied the most grossly where the object to be attained is the most culpable. On the other hand, if the members of the legislative body, by being made incapable of accepting the higher or more lucrative offices of state, are cut off from those inducements to right conduct and a true ambition which the imperfections of our nature have made not only powerful, but sometimes necessary, aids to virtue, the public service may have no other security than their uncertain impulses or imperfect judgments. In the midst of such tendencies to opposite mischiefs, all that human wisdom and foresight can do is, to anticipate and prevent the evils of both extremes, by provisions which will guard both the interests of morality and the interests of political expediency as completely as circumstances will allow. I am persuaded it was upon such principles as I have thus endeavored to state, that the framers of our national Constitution intended to regulate this very difficult part of the relations between the executive and the legislature. During a considerable period, however, of their deliberations on the disabilities to which it would be proper to subject the members of the latter department, they had another example before them besides that afforded by the history of parliamentary corruption in England. The Congress of the Confederation had of course the sole power of appointment to offices under the authority of the United States; and although there is no reason to suppose that body at any time to have been justly chargeable with corrupt motives, there were complaints of the frequency with which it had filled the offices which it had created with its own members. In these complaints, the people overlooked the justification. They forgot that the nature of the government, and the circumstances of the country, rendered it difficult for an assembly which both made and filled the offices, and which exercised its functions at a time when the State governments absorbed by far the greater part of the interests and attention of their citizens, to find suitable men out of its own ranks. In that condition of things, it might have been expected,--and it implies no improper purpose,--that offices would be sometimes framed or regulated with a view to their being filled by particular persons. But the complaints existed;[170] the evil was one that tended constantly to become worse; and, in framing the new government, this was the first aspect in which the influence of office and its emoluments presented itself to the Convention. For when the Virginia members, through Edmund Randolph, brought forward their scheme of government, they not only gave the executive no power of appointment to any office, but they proposed to vest the appointment of both the executive and the judiciary in the legislature. Hence they felt the necessity of guarding against the abuse that might follow, if the members of the legislature were to be left at liberty to appoint each other to office,--an abuse which they knew had been imputed to the Congress, and which they declared had been grossly practised by their own legislature.[171] They proposed, therefore, to go beyond the Confederation, and to make the members of both branches ineligible to any office established under the authority of the United States, (excepting those peculiarly belonging to their own functions,) during their term of service and for one year after its expiration. This provision passed the committee of the whole; but in the Convention, on a motion made by Mr. Gorham to strike it out, the votes of the States were divided. An effort was then made by Mr. Madison to find a middle ground, between an eligibility in all cases and an absolute disqualification. If the unnecessary creation of offices and the increase of salaries was the principal evil to be anticipated, he believed that the door might be shut against that abuse, and might properly be left open for the appointment of members to places not affected by their own votes, as an encouragement to the legislative service. But there were several of the stern patriots of the Convention who insisted on a total exclusion, and who denied that there was any such necessity for holding out inducements to enter the legislature.[172] This was a question on which different minds, of equal sagacity and equal purity, would naturally arrive at different conclusions. Still, it is apparent that the mischiefs most apprehended at the time of Mr. Madison's proposition would be in a great degree prevented, by taking from the legislature the power of appointing to office; and that this modification of the system was what was needed, to make his plan a true remedy for the abuses that had been displayed in our own experience. The stigma of venality cannot properly be applied to the laudable ambition of rising into the honorable offices of a free government; and if the opportunity to create places, or to increase their emoluments, and then to secure those places, is taken away, by vesting the appointment in the executive, the question turns mainly on the relations that ought to exist between that department and the legislature. But Mr. Madison's suggestion was made before it was ascertained that the executive would have any power of appointment, and it was accordingly rejected;--a majority of the delegations considering it best to retain the ineligibility in all cases, as proposed by the Virginia plan.[173] In this way, the disqualification became incorporated into the first draft of the Constitution, prepared by the committee of detail.[174] But by this time it was known that a large part of the patronage of the government must be placed in the hands of the President; for it had been settled that he was to appoint to all offices not otherwise provided for, and the cases thus excepted were those of judges and ambassadors, which stood, in this draft of the Constitution, vested in the Senate. A strong opposition to this arrangement, however, had already manifested itself, and the result was very likely to be,--as it in fact turned out,--that nearly the whole of the appointments would be made on the nomination of the President, even if the Senate were to be empowered to confirm or reject them. Accordingly, when this clause came under consideration, the principle of an absolute disqualification for office was vigorously attacked, and as vigorously defended. The inconvenience and impolicy of excluding officers of the army and navy from the legislature; of rendering it impossible for the executive to select a commander-in-chief from among the members, in cases of pre-eminent fitness; of refusing seats to the heads of executive departments; and of closing the legislature as an avenue to other branches of the public service,--were all strenuously urged and denied.[175] At length, a middle course became necessary, to reconcile all opinions. By a very close vote, the ineligibility was restrained to cases in which the office had been created, or the emolument of it increased, during the term of membership;[176] and a seat in the legislature was made incompatible with any other office under the United States.[177] Some at least of the probable sources of corruption were cut off by these provisions. The executive can make no bargain for a vote, by the promise of an office which has been acted upon by the member whose vote is sought for; and there can be no body of placemen, ready at all times to sell their votes as the price for which they are permitted to retain their places. At the same time, the executive is not deprived of the influence which attends the power of appointing to offices not created, or the emoluments of which have not been increased, by any Congress of which the person appointed has been a member. This influence is capable of abuse; it is also capable of being honorably and beneficially exerted. Whether it shall be employed corruptly or honestly, for good or for bad purposes, is left by the Constitution to the restraints of personal virtue and the chastisements of public opinion. A serious question, however, has been made, whether the interests of the public service, involved in the relations of the two departments, would not have been placed upon a better footing, if some of the higher officers of state had been admitted to hold seats in the legislature. Under the English constitution, there is no practical difficulty, at least in modern times, in determining the general principle that is to distinguish between the class of officers who can, and those who cannot, be usefully allowed to have seats in the House of Commons. The principle which, after much inconsistent legislation and many abortive attempts to legislate, has generally been acted on since the reign of George II., is, that it is both necessary and useful to have in that House some of the higher functionaries of the administration; but that it is not at all necessary, and not useful, to allow the privilege of sitting in Parliament to subordinate officers.[178] The necessity of the case arises altogether from the peculiar relations of the ministry to the crown, and of the latter to the Commons. If the executive government were not admitted, through any of its members, to explain and vindicate its measures, to advocate new grants of authority, or to defend the prerogatives of the crown, the popular branch of the legislature would either become the predominant power in the state, or sink into insignificance. This is conceded by the severest writers on the English government. But when we pass from a civil polity which it has taken centuries to produce, and which has had its departments adjusted much less by reference to exact principles than by the results of their successive struggles for supremacy over each other, and when we come to an original distribution of powers, in the arrangements of a constitution made entire and at once by a single act of the national will, we must not give too much effect to analogies which after all are far from being complete. In preparing the Constitution of the United States, its framers had no prerogative, in any way resembling that of the crown of England, to consider and provide for. The separate powers to be conferred on the chief magistracy--aside from its concurrence in legislation--were simply executive and administrative; the office was to be elective, and not hereditary; and its functions, like those of the legislature, were to be prescribed with all the exactness of which a written instrument is capable. There was, therefore, little of such danger that the one department would silently or openly encroach on the rights or usurp the powers of the other, as there is where there exists hereditary right on the one side and customary right on the other, and where the boundaries between the two departments are to be traced by the aid of ancient traditions, or collected from numerous and perhaps conflicting precedents. There was no such necessity, therefore, as there is in England, for placing members of the administration in the legislature, in order to preserve the balance of the Constitution. The sole question with us was, whether the public convenience required that the administration should be able to act directly upon the course of legislation. The prevailing opinion was that this was not required. This opinion was undoubtedly formed under the fear of corruption and the jealousy of executive power, chiefly produced--and justly produced--by the example of what had long existed in England. That the error, if any was committed, lay on the safer side, none can doubt. It is possible that the chances of a corrupt influence would not have been increased, and that the opportunities for a salutary influence might have been enlarged,--as it is highly probable that the convenience of communication would have been promoted,--if some of the higher officers of state could have been allowed to hold seats in either house of Congress. But it is difficult to see how this could have been successfully practised, under the system of representation and election which the framers of the Constitution were obliged to establish: and perhaps this is a decisive answer to the objection.[179] Among the powers conceded by the Constitution to the legislature of each State is that of prescribing the time, place, and manner of holding the elections of its senators and representatives in Congress. This provision[180] originated with the committee of detail; but, as it was reported by them, there was no other authority reserved to Congress itself than that of altering the regulations of the States; and this authority extended as well to the place of choosing the senators, as to all the other circumstances of the election.[181] In the Convention, however, the authority of Congress was extended beyond the alteration of State regulations, so as to embrace a power to make rules, as well as to alter those made by the States. But the place of choosing the senators was excepted altogether from this restraining authority, and left to the States.[182] Mr. Madison, in his minutes, adds the explanation, that the power of Congress to _make_ regulations was supplied, in order to enable them to regulate the elections, if the States should fail or refuse to do so.[183] But the text of the Constitution, as finally settled, gives authority to Congress at "any time" to "make or alter such regulations"; and this would seem to confer a power, which, when exercised, must be paramount, whether a State regulation exists at the time or not. There is one other peculiarity of the American legislature, of which it is proper in this connection to give a brief account; namely, the compensation of its members for their public services. In the plan presented by the Virginia delegation, it was proposed that the members of both branches should receive "liberal stipends"; but it was not suggested whether they were to be paid by the States, or from the national treasury. The committee of the whole determined to adopt the latter mode of payment; and as the representation in both branches, according to the first decision, was to be of the same character, no reason was then suggested for making a difference in the source of their compensation. But when the construction of the Senate was considered in the Convention, the idea was suggested that this body ought in some way to represent wealth; and it was apparently under the influence of this suggestion, that, after a refusal to provide for a payment of the senators by their States, payment out of the national treasury was stricken from the resolution under debate.[184] There was thus introduced into the resolutions sent to the committee of detail, a discrepancy between the modes of compensating the members of the two branches; for while the members of the House were to be paid "an adequate compensation" out of "the public treasury," the Senate were to receive "a compensation for the devotion of their time to the public service," but the source of payment was not designated. But when the whole body of those resolutions had been acted on, the character of the representation in the Senate had been settled, and the idea of its being made a representation of wealth, in any sense, had been rejected. The committee of detail had, therefore, in giving effect to the decisions of the Convention, to consider merely whether the members of the two branches should be paid by their States, or from the national treasury; and for the purpose of making the same provision as to both, and in order to avoid the question whether the Constitution should establish the amount, or should leave it to be regulated by the Congress itself, they provided that the members of each house should receive a compensation for their services, to be ascertained and paid by the State in which they should be chosen.[185] This, however, was to encounter far greater evils than it avoided. If paid by their States, the members of the national legislature would not only receive different compensations, but they would be directly subjected to the prejudices, caprices, and political purposes of the State legislatures. Whatever theory might be maintained with respect to the relations between the representatives, in either branch, and the State in which they were chosen, or the people of the States, to subject one class of public servants to the power of another class could not fail to produce the most mischievous consequences. A large majority of the States, therefore, decided upon payment out of the national treasury,[186] and it was finally determined that the rate of compensation should not be fixed by the Constitution, but should be left to be ascertained by law.[187] Among the separate functions assigned by the Constitution to the houses of Congress are those of presenting and trying impeachments. An impeachment, in the report of the committee of detail, was treated as an ordinary judicial proceeding, and was placed within the jurisdiction of the Supreme Court. That this was not in all respects a suitable provision, will appear from the following considerations. Although an impeachment may involve an inquiry whether a crime against any positive law has been committed, yet it is not necessarily a trial for crime; nor is there any necessity, in the case of crimes committed by public officers, for the institution of any special proceeding for the infliction of the punishment prescribed by the laws, since they, like all other persons, are amenable to the ordinary jurisdiction of the courts of justice, in respect of offences against positive law. The purposes of an impeachment lie wholly beyond the penalties of the statute or the customary law. The object of the proceeding is to ascertain whether cause exists for removing a public officer from office. Such a cause may be found in the fact, that, either in the discharge of his office, or aside from its functions, he has violated a law, or committed what is technically denominated a crime. But a cause for removal from office may exist, where no offence against positive law has been committed, as where the individual has, from immorality or imbecility or maleadministration, become unfit to exercise the office. The rules by which an impeachment is to be determined are therefore peculiar, and are not fully embraced by those principles or provisions of law which courts of ordinary jurisdiction are required to administer. From considerations of this kind, especially when applied to the impeachment of a President of the United States, the Convention found it expedient to place the trial in the Senate. In fact, the whole subject of impeachments, as finally settled in the Constitution, received its impress in a great degree from the attention that was paid to the bearing of this power upon the executive. Few members of the Convention were willing to constitute a single executive, with such powers as were proposed to be given to the President, without subjecting him to removal from office on impeachment; and when it was perceived to be necessary to confer upon him the appointment of the judges, it became equally necessary to provide some other tribunal than the Supreme Court for the trial of his impeachment. There was no other body already provided for in the government, with whom this jurisdiction could be lodged, excepting the Senate; and the only alternative to this plan was to create a special tribunal for the sole purpose of trying impeachments of the President and other officers. This was justly deemed a manifest inconvenience; and although there were various theoretical objections suggested against placing the trial in the Senate, on the question being stated there were found to be but two dissentient States.[188] This point having been settled, in relation to impeachments of the President, the trial of impeachments of all other civil officers of the United States was, for the sake of uniformity, also confided to the Senate.[189] The power of impeachment was confined, as originally proposed, to the House of Representatives.[190] The number of members of each house that should be made a _quorum_ for the transaction of business gave rise to a good deal of difference of opinion. The controlling reason why a smaller number than a majority of the members of each house should not be permitted to make laws, was to be found in the extent of the country and the diversity of its interests. The central States, it was said, could always have their members present with more convenience than the distant States; and after some discussion, it was determined to establish a majority of each house as its quorum for the transaction of business, giving to a smaller number power to adjourn from day to day, and to compel the attendance of absent members.[191] Provisions making each house the judge of the elections, returns, and qualifications of its own members; that for any speech, or debate in either house no member shall be questioned in any other place; and that in all cases, except treason, felony, or breach of the peace, the members shall be privileged from arrest during their attendance at, and in going to and returning from, the sessions of their respective houses,--were agreed to without any dissent.[192] The power of each house to determine the rules of its proceedings, to punish its members for disorderly behavior, and to expel with the concurrence of two thirds, was agreed to with general assent.[193] Each house was also directed to keep a journal of its proceedings, and from time to time to publish the same, excepting such parts as may in their judgment require secrecy; and one fifth of the members present in either house were empowered to require the yeas and nays to be entered on its journal.[194] The report of the committee of detail had made no provision for such an officer as the Vice-President of the United States, and had therefore declared that the Senate, as well as the House, should choose its own presiding officer. This feature of their report received the sanction of the Convention; but subsequently, when it became necessary to create an officer to succeed the President of the United States, in case of death, resignation, or removal from office, the plan was adopted of making the former _ex officio_ the presiding officer of the Senate, giving him a vote only in cases where the votes of the members are equally divided.[195] To this was added the further provision, that the Senate shall choose, besides all its other officers, a President _pro tempore_, in the absence of the Vice-President, or when he shall exercise the office of President of the United States.[196] The House of Representatives were empowered to choose their own Speaker, and other officers, as originally proposed.[197] The mode in which laws were to be enacted was the last topic concerning the action of the legislature which required to be dealt with in the Constitution. The principle had been already settled, that the negative of the President should arrest the passage of a law, unless, after he had refused his concurrence, it should be passed by two thirds of the members of each house. In order to give effect to this principle, the committee of detail made the following regulations, which were adopted into the Constitution;--that every bill, which shall have passed the two houses, shall, before it become a law, be presented to the President of the United States; that, if he approve, he shall sign it, but if not, he shall return it, with his objections, to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it; that if, after such reconsideration, two thirds of that house agree to pass the bill, it is to be sent with the objections to the other house, by which it is likewise to be reconsidered, and, if approved by two thirds of that house, it is to become a law; but in all such cases, the votes of both houses are to be determined by yeas and nays entered upon the journal. If any bill be not returned by the President within ten days (Sundays excepted) after it has been presented to him, it is to become a law, in like manner as if he had signed it, unless the Congress by adjourning prevent its return, in which case it is not to become a law. All orders, resolutions, and votes to which the concurrence of both houses is necessary, (except on a question of adjournment,) are subject to these provisions.[198] The two important differences between the negative thus vested in the President of the United States and that which belongs to the King of England are, that the former is a qualified, while the latter is an absolute, power to arrest the passage of a law; and that the one is required to render to the legislature the reasons for his refusal to approve a bill, while the latter renders no reasons, but simply answers that he will advise of the matter, which is the parliamentary form of signifying a refusal to approve. The provision in our Constitution which requires the President to communicate to the legislature his objections to a bill, was rendered necessary by the power conferred upon two thirds of both houses to make it a law, notwithstanding his refusal to sign it. By this power, which makes the negative of the President a qualified one only, the framers of the Constitution intended that the two houses should take into consideration the objections which may have led the President to withhold his assent, and that his assent should be dispensed with, if, notwithstanding those objections, two thirds of both houses should still approve of the measure. These provisions, therefore, on the one hand, give to the President a real participation in acts of legislation, and impose upon him a real responsibility for the measures to which he gives his official approval, while they give him an important influence over the final action of the legislature upon those which he refuses to sanction; and, on the other hand, they establish a wide distinction between his negative and that of the King in England. The latter has none but an absolute "veto"; if he refuse to sign a bill, it cannot become a law; and it is well understood, that it is on account of this absolute effect of the refusal, that this prerogative has been wholly disused since the reign of William III., and that the practice has grown up of signifying, through the ministry, the previous opposition of the executive, if any exists, while the measure is under discussion in Parliament. It is not needful to consider here which mode of legislation is theoretically or practically the best. It is sufficient to notice the fact, that the absence from our system of official and responsible advisers of the President, having seats in the legislature, renders it impracticable to signify his views of a measure, while it is under the consideration of either house. For this reason, and because the President himself is responsible to the people for his official acts, and in order to accompany that responsibility with the requisite power both to act upon reasons and to render them, our Constitution has vested in him this peculiar and qualified negative.[199] The remaining topic that demands our inquiries, respecting the legislature, relates to the place of its meeting. The Confederation was a government without a capitol, or a seat; a want which seriously impaired its dignity and its efficiency, and subjected it to great inconveniences; at the same time, it was unable to supply the defect. Its Congress, following the example of their predecessors, had continued to assemble at Philadelphia, until June, 1783; when, as we have already seen, in consequence of a mutiny by some of the federal troops stationed in that neighborhood, against which the local authorities failed to protect them, they left that city, and reassembled at Princeton, in the State of New Jersey, in the halls of a college.[200] There, in the following October, a resolution was passed, directing that buildings for the use of Congress should be erected at some suitable place near the falls of the Delaware; for which the right of soil and an exclusive jurisdiction should be obtained.[201] But this was entirely unsatisfactory to the Southern States. They complained that the place selected was not central, was unfavorable to the Union, and unjust to them. They endeavored to procure a reconsideration of the vote, but without success.[202] Several days were then consumed in fruitless efforts to agree on a temporary residence; and at length it became apparent that there was no prospect of a general assent to any one place, either for a temporary or for a permanent seat. The plan of a single residence was then changed, and a resolution was passed, providing for an alternate residence at two places, by directing that buildings for the use of Congress, and a federal town, should also be erected at or near the lower falls of the Potomac, or Georgetown; and that until both places, that on the Delaware and that on the Potomac, were ready for their reception, Congress should sit alternately, for equal periods of not more than one year and not less than six months, at Trenton, the capital of the State of New Jersey, and at Annapolis, the capital of the State of Maryland. The President was thereupon directed to adjourn the Congress, on the 12th of the following November, to meet at Annapolis on the 26th, for the despatch of business. Thither they accordingly repaired, and there they continued to sit until June 3, 1784. A recess followed, during which a committee of the States sat, until Congress reassembled at Trenton, on the 30th of the following October. At Trenton, the accommodations appear to have been altogether insufficient, and the States of South Carolina and Pennsylvania proposed to adjourn from that place.[203] The plan of two capitols in different places was then rescinded,[204] and an ordinance was passed, for the appointment of commissioners to establish a seat of government on the banks of the Delaware, at some point within eight miles above or below the lower falls of that river. Until the necessary buildings should be ready for their reception, the ordinance provided that Congress should sit at the city of New York.[205] When assembled there in January, 1785, they received and accepted from the corporation an offer of the use of the City Hall; and in that building they continued to hold their sessions until after the adoption of the Constitution.[206] It does not appear that any steps were taken under the ordinance of 1784, or under any of the previous resolutions, for the establishment of a federal town and a seat of government at any of the places designated. Whether the Congress felt the want of constitutional power to carry out their project, or whether the want of means, or a difficulty in obtaining a suitable grant of the soil and jurisdiction, was the real impediment, there are now no means of determining. It seems quite probable, however, that, after their removal to the city of New York, they found themselves much better placed than they or their predecessors had ever been elsewhere; and as the discussions respecting a total revision of the federal system soon afterwards began to agitate the public mind, the plan of establishing a seat for the accommodation of the old government was naturally postponed. The plan itself, on paper, was a bold and magnificent one. It contemplated a district not less than two and not more than three miles square, with a "federal house" for the use of Congress; suitable buildings for the executive departments; official residences for the president and secretary of Congress, and the secretaries of foreign affairs, of war, of the marine, and the officers of the treasury; besides hotels to be erected and owned by the States as residences for their delegates. But, for this fine scheme of a federal metropolis, an appropriation was made, which, even in those days, one might suppose, would scarcely have paid for the land required. The commissioners who were to purchase the site, lay out the town, and contract for the erection and completion of all the public edifices,--excepting those which were to belong to the States,--"in an elegant manner," were authorized to draw on the federal treasury for a sum not exceeding one hundred thousand dollars, for the whole of these purposes. If we are to understand it to have been really expected and intended that this sum should defray the cost of this undertaking, we must either be amused by the modest requirements of the Union at that day, or stand amazed at the strides it has since taken in its onward career of prosperity and power. From the porticos of that magnificent Capitol whose domes overhang the Potomac, the eye now looks down upon a city, in which, at a cost of many millions, provision has been made for the central functions of a government, whose daily expenditure exceeds the entire sum appropriated for the establishment of the necessary public buildings and official residences seventy years ago. In truth, however, there is not much reason to suppose that the Congress of the Confederation seriously contemplated the establishment of a federal city. They were too feeble for such an undertaking. They could pass resolutions and ordinances for the purpose, and send them to the authorities of the States;--and if a more decent attention to the wants and dignity of the federal body was excited, it was well, and was probably the effect principally intended. If they had actually proceeded to do what their resolution of 1783 proposed,--to acquire the jurisdiction, as well as the right of soil, over a tract of land,--they must have encountered a serious obstacle in the want of constitutional power. This difficulty seems to have been felt at a later period; for the ordinance of 1784 only directs a purchase of the land, and is silent upon the subject of municipal jurisdiction. It is fortunate, too, on all accounts, that the design was never executed, if it was seriously entertained. The presence of Congress in the city of New York, where the legislature of the State was also sitting, in the winter of 1787, enabled Hamilton to carry those measures in both bodies, which led immediately to the summoning of the national Convention.[207] And it was especially fortunate that this whole subject came before the Convention unembarrassed with a previous choice of place by the old Congress, or with any steps concerning municipal jurisdiction which they might have taken, or omitted. For it was no easy matter, in the temper of the public mind existing from 1783 to 1788, to determine where the seat of the federal, or that of the national government, ought to be placed. The Convention found this an unsettled question, and they wisely determined to leave it so. The cities of New York and Philadelphia had wishes and expectations, and it was quite expedient that the Constitution should neither decide between them, nor decide against both of them. It was equally important that it should not direct whether the seat of the national government should be placed at any of the other commercial cities, or at the capital or within the jurisdiction of any State, or in a district to be exclusively under the jurisdiction of the United States. These were grave questions, which involved the general interests of the Union; but however settled, they would cost the Constitution, in some quarter or other, a great deal of the support that it required, if determined before it went into operation.[208] Temporarily, however, the new government must be placed somewhere within the limits of a State, and at one of the principal cities; and as the Congress then sitting at New York would probably invite their successors to assemble there, it became necessary to provide for a future removal, when the time should arrive for a general agreement on the various and delicate questions involved. The difference of structure, however, between the two branches of the proposed Congress, and the difference of interests that might predominate in each, made a disagreement on these questions probable, if not inevitable; and a disagreement on the place of their future sessions, if accompanied by power to sit in separate places, would be fatal to the peace of the Union and the operation of the government. The committee of detail, therefore, inserted in their draft a clause prohibiting either house, without the consent of the other, from adjourning for more than three days, or to any other place than that at which the Congress might be sitting. Mr. King expressed an apprehension that this implied an authority in both houses to adjourn to any place; and as a frequent change of place had dishonored the federal government, he thought that a law, at least, should be made necessary for a removal. Mr. Madison considered a central position would be so necessary, and that it would be so strongly demanded by the House of Representatives, that a removal from the place of their first session would be extorted, even if a law were required for it. But there was a fear that, if the government were once established at the city of New York, it would never be removed if a law were made necessary. The provision reported by the committee was therefore retained, and it was left in the power of the two houses alone, during a session of Congress, to adjourn to any place, or to any time, on which they might agree.[209] Still it was needful that the Constitution should empower the legislature to establish a seat of government out of the jurisdiction of any of the States, and away from any of their cities. The time might come when this question could be satisfactorily met. The time would certainly come, when the people of the whole Union could see that the dignity, the independence, and the purity of the government would require that it should be under no local influences; when every citizen of the United States, called to take part in the functions of that government, ought to be able to feel that he and his would owe their protection to no power, save that of the Union itself. Some disadvantage, doubtless, might be experienced, in placing the government away from the great centres of commerce. But neither of the principal seats of wealth and refinement was very near to the centre of the Union; and if either of them had been, the necessity for an exclusive local jurisdiction would probably be found, after the adoption of the Constitution, to outweigh all other considerations. Accordingly, when the Constitution was revised for the purpose of supplying the needful provisions omitted in its preparation, it was determined that no peremptory direction on the subject of a seat of government should be given to the legislature; but that power should be conferred on Congress to exercise an exclusive legislation, in all cases, over such district, not exceeding ten miles square, as might, by cession of particular States and the acceptance of Congress, become the seat of government of the United States. This provision has made the Congress of the United States the exclusive sovereign of the District of Columbia, which it governs in its capacity of the legislature of the Union. It enabled Washington to found the city which bears his name; towards which, whatever may be the claims of local attachment, every American who can discern the connection between the honor, the renown, and the welfare of his country, and the dignity, convenience, and safety of its government, must turn with affection and pride. With respect to a regular time of meeting, no instructions had been given to the committee of detail; but they inserted in their draft of the Constitution a clause which required the legislature to assemble on the first Monday of December in every year. There was, however, a great difference of opinion as to the expediency of designating any time in the Constitution, and as to the particular period adopted in the report. But as it was generally agreed that Congress ought to assemble annually, the provision which now stands in the Constitution, which requires annual sessions, and establishes the first Monday in December as the time of their commencement, unless a different day shall be appointed by law, was adopted as a compromise of different views.[210] FOOTNOTES: [130] The first draft of the Constitution, reported by the committee of detail, will be found in the Appendix. [131] A general instruction had been given to report "certain qualifications of property and citizenship," for the executive, the judiciary, and the members of both houses of Congress. [132] It is only necessary to mention the names of Hamilton, Wilson, Robert Morris, and Fitzsimmons, to show the entire impracticability of a rule that would have excluded all persons of _foreign birth_ from being electors, or from being elected to office. [133] I have called the naturalization power a _practical_ control upon the States in the matter of suffrage. It is indirect, but it is effectual; for I believe that no State has ever gone so far as, by express statutory or constitutional provision, to admit to the right of voting persons of foreign birth who are not naturalized citizens of the United States. [134] Art. VI. Sect. 2 of the reported draft. [135] Art. IV. Sect. 2 of the reported draft. [136] New Hampshire, Massachusetts, and Georgia alone voted to retain it. Elliot, V. 404. [137] The Constitution of Pennsylvania had given to foreigners, after two years' residence, all the rights of citizens. There were similar provisions in nearly all of the States. [138] The members who advocated the exemption were G. Morris, Mercer, Gorham, Madison, and Wilson; those who opposed it were Rutledge, Sherman, General Pinckney, Mason, and Baldwin. The States voting for it were Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, 5; the States voting against it were New Hampshire, Massachusetts, Delaware, North Carolina, South Carolina, Georgia, 6. The question elicited a good deal of feeling, and was debated with some warmth. [139] _Ante_, Chap. VII. [140] See _ante_, Chap. VIII. [141] See _post_, as to the compromise on this subject. [142] September 8. [143] Elliot, V. 530. [144] By a majority of one State. Ibid. [145] That is to say, Congress were authorized to apportion one representative to thirty thousand inhabitants, but not to exceed that number. Constitution, Art. I. § 2. [146] Let the reader consult Mr. Hallam's acute and learned discussion of this exclusive privilege of the House of Commons, (Const. Hist., III. 37-46,) and he will probably be satisfied, that, whatever theoretical reasons different writers may have assigned for it, its origin is so obscure, and its precise limits and purposes, deduced from the precedents, are so uncertain, that it can now be said to rest on no positive principles. Its basis is custom; which, having no definite beginning, is now necessarily immemorial. It would not be quite safe, therefore, to reason upon the well-defined provision of our Constitution, as if there were a close analogy between the situation of the two houses of Congress and the two branches of the British legislature. The English example certainly had an influence, in suggesting the plan of such a restriction; but care must be taken not to overlook the peculiar arrangements which made it so highly expedient, that it may be said to have been a necessity, even if there had been no British example. [147] C. Pinckney. Elliot, V. 189. June 13. [148] On the question for restraining the Senate from originating money bills, New York, Delaware, Virginia, _ay_, 3; Massachusetts, Connecticut, New Jersey, Maryland, North Carolina, South Carolina, Georgia, _no_, 7. Ibid. [149] Elliot, V. 285. _Ante_, Chap. VIII. [150] August 8. For striking out, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, _ay_, 7; New Hampshire, Massachusetts, Connecticut, North Carolina, _no_, 4. [151] Dr. Franklin, Mason, Williamson, and Randolph (Elliot, V. 395-397.) It would be endless to cite the observations of different members, to show the purposes which they entertained. The reader, who desires to test the accuracy of my inferences in any of these descriptions, must study the debates, and compare, as I have done, the different _phases_ which the subject assumed from time to time. [152] Moved by Randolph, August 13. Elliot, V. 414. [153] Ibid. 420. [154] Moved by Mr. Strong, August 15. Ibid. 427. This was brought forward as an amendment to the article (Art. VI. § 12) which was to define the powers of the two houses. [155] August 31. Elliot, V. 503. [156] Elliot, V. 506, 510, 511, 514. The privilege, as it came from this committee, was confined to "bills for raising revenue"; and these were made subject to "alterations and amendments by the Senate." [157] Ibid. 519. [158] The history of this provision shows clearly that a bill for appropriating money may originate in the Senate. [159] August 9. Elliot, V. 398-401. Massachusetts, Connecticut, Pennsylvania, and Maryland voted in the negative, and the vote of North Carolina was divided. [160] May 31. Elliot, V. 133. [161] Dickinson, Gerry, Mason. [162] Sherman, Luther Martin, Ellsworth. On the naked proposition, moved by Ellsworth, July 2, to allow each State one vote in the Senate, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_, 5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5; Georgia divided. [163] Maryland alone voted against it. [164] This suggestion was made by Hamilton. Elliot, V. 517. [165] Madison, Hamilton, Wilson, and Read. Elliot, V. 241-245. June 26. [166] Ibid. [167] In Horace Walpole's Memoirs of the Reign of George II., there is an amusing parallel--gravely drawn, however--between the mode in which his father, Sir Robert, "traded for members," and the manner in which Mr. Pelham carried on _his_ corruption. Lord Mahon has called Sir Robert Walpole "the patron and parent of parliamentary corruption." (Hist. of England, I. 268.) But both Mr. Hallam and Mr. Macaulay say that it originated under Charles II., and both admit that it was practised down to the close of the American war. (Hallam's Const. Hist., III. 255, 256, 351-356. Macaulay's Hist. of England, III. 541-549.) The latter, in a very masterly analysis of its origin and history, treats it as a local disease, incident to the growth of the English constitution. It must be confessed, that it had become _chronic_. [168] I am quite aware of the danger of reasoning from the circumstances of one country to those of another, even in the case of England and the United States. But I avail myself, in support of the text, of the authority of a writer, whose high moral tone, and whose profound knowledge of the constitution on which he has written, unite to make it unnecessary that its history should be written again;--I mean, of course, Mr. Hallam. He pronounces it an extreme supposition, and not to be pretended, that Parliament was ever "absolutely, and in all conceivable circumstances, under the control of the sovereign, whether through intimidation or corrupt subservience." "But," he adds, "as it would equally contradict notorious truth to assert that every vote has been disinterested and independent, _the degree of influence which ought to be permitted_, or which has at any time existed, _becomes one of the most important subjects in our constitutional policy_." (Const. Hist., III. 351.) [169] The position and functions of the judiciary, after proper measures have been taken to secure individual capacity and integrity, do admit and require what may be called absolute confidence. That is to say, their action is not only final and conclusive, but it is never legitimately open to the influence of any other department. The reason is, that their action does not proceed from individual discretion, but is regulated by the principles of a moral science, whose existence is wholly independent of the will of the particular judge. Whereas the action of both the executive and the legislative departments, within the limits prescribed to it by the fundamental law, involves the exercise, to a wide extent, of mere individual discretion. The remedy for a failure in the judge to justify the confidence reposed in him is, therefore, only by impeachment. [170] The legislature of Massachusetts had, before Congress recommended the national Convention, instructed its delegates in Congress not to agree to any modification of the fifth Article of the Confederation, which prohibited the members of Congress from _holding_ any office under the United States, for which they or any other person for their benefit could receive any salary, fee, or emolument. This instruction was repealed, by the unqualified manner in which the State accepted the recommendation for a national Convention. But it shows the sentiment of the State on this point, and it also shows the jealousy that was felt. [171] See the assertion by Mr. Mason, and the admission by Mr. Madison, Elliot, V. 230, 232. [172] Butler, Mason, and Rutledge. [173] Two States only, Connecticut and New Jersey, voted for Madison's amendment. June 23. Elliot, V. 230-233. [174] The disqualification, as applied to members of both houses, was incorporated into one clause. Art. VI. § 9 of the draft of the committee of detail. Elliot, V. 377. [175] See the debate, August 14. Elliot, V. 420-425. [176] There was a majority of only one State in favor of this principle. Elliot, V. 506. [177] This provision received a unanimous vote. Ibid. [178] For the history of what have been called place-bills, see Hallam's Const. Hist., III. 255, 256, 351. Macaulay, IV. 336-338, 339, 341, 342, 479, 480, 528. [179] Mr. Justice Story has suggested, that, "if it would not have been safe to trust the heads of departments, as representatives, to the choice of the people, as their constituents, it would have been at least some gain to have allowed them a seat, like territorial delegates, in the House of Representatives, where they might freely debate without a title to vote." (Commentaries on the Constitution, I. § 869.) An officer of an executive department, thus admitted to a seat in Congress, must have been placed there merely in virtue of his office, by a special provision. He could have represented no real constituency, and must therefore have had an anomalous position. A territorial delegate is admitted as the representative of a dependency, somewhat colonial in its nature, whose inhabitants are not on an equal footing with the constituencies of the States. He has therefore no vote. When speaking for the interests of those whom he represents, he is in somewhat the same attitude as counsel admitted to be heard at the bar of the House. Whether the head of an executive department could with dignity and convenience be placed in a similar position, admits at least of grave doubt. [180] Art. I. § 4 of the Constitution. [181] Art. VI. § 1 of the first draft. [182] Madison, Elliot, V. 401, 402. Journal, Elliot, I. 309. [183] Elliot, V. 402. [184] Elliot, V. 247. [185] Art. VI. § 10 of the first draft. Elliot, V. 378. [186] Massachusetts and South Carolina in the negative. [187] See the discussion on Art. VI. § 10 of the first draft. Elliot, V. 425-427. [188] Pennsylvania and Virginia. [189] See Elliot, V. 507, 528, 529. [190] As to the other provisions of the Constitution on this subject, see the Index, _verb._ Impeachment. [191] Elliot, V. 405, 406. Art. I. § 5 of the Constitution. [192] Elliot, V. 406. Constitution, Art. I. §§ 5, 6. [193] Elliot, V. 407. Constitution, Art. I. § 5. [194] Elliot, V. 407. Constitution, Art. I. § 5. [195] Elliot, V. 507, 520. Constitution, Art. I. § 3. [196] Ibid. [197] Art. I. § 2. [198] Constitution, Art. I. § 7. [199] A question has been made, whether it is competent to two thirds of the members _present_ in each house to pass a bill notwithstanding the President's objections, or whether the Constitution means that it shall be passed by two thirds of all the members of each branch of the legislature. The history of the "veto" in the Convention seems to me to settle this question. There was a change of phraseology, in the course of the proceedings on this subject, which indicates very clearly a change of intention. The language employed in the resolutions, in all the stages through which they passed, was, that "The national executive shall have a right to negative any legislative act, which shall not be afterwards passed by _two third parts of each branch of the national legislature_." This was the form of expression contained in the resolutions sent to the committee of detail; and if it had been incorporated into the Constitution, there could have been no question but that its meaning would have been, that the bill must be afterwards passed by two thirds of all the members to which each branch is constitutionally entitled. But the committee of detail changed this expression, and employed one which has a technical meaning, that meaning being made technical by the Constitution itself. Before the committee came to carry out the resolution relating to the President's negative, they had occasion to define what should constitute a "_house_" in each branch of the legislature; and they did so by the provision that a majority of each _house_ shall constitute a quorum to do business. This expression, a "house," or "each house," is several times employed in the Constitution, with reference to the faculties and powers of the two chambers respectively, and it always means, when so used, the constitutional quorum, assembled for the transaction of business, and capable of transacting business. This same expression was employed by the committee when they provided for the mode in which a bill, once rejected by the President, should be again brought before the legislative bodies. They directed it to be returned "_to that_ HOUSE _in which it shall have originated_,"--that is to say, to a constitutional quorum, a majority of which passed it in the first instance; and they then provided, that, if "_two thirds_ of that HOUSE shall agree to pass the bill, it shall be sent, together with the objections, to the other HOUSE,... and if approved by _two thirds_ of that HOUSE, it shall become a law." This change of phraseology, taken in connection with the obvious meaning of the term "house," as used in the Constitution when it speaks of a chamber competent to do business, shows the intention very clearly. It is a very different provision from what would have existed, if the phrase "two third parts of each branch of the national legislature" had been retained. (See Elliot, V. 349, 376, 378, 431 536.) This view will be sustained by an examination of all the instances in which the votes of "two thirds" in either body are required. Thus, "each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, _with the concurrence of two thirds_, expel a member." (Art. I. § 5.) The context of the same article defines what is to constitute a "house," and makes it clear that two thirds of a "house" may expel. That this was the intention is also clear from what took place in the Convention. Mr. Madison objected to the provision as it stood on the report of the committee, by which a mere _majority_ of a quorum was empowered to expel, and, on his motion, the words "with the concurrence of two thirds" were inserted. (Elliot, V. 406, 407.) In like manner, the fifth Article of the Constitution empowers Congress, "_whenever two thirds of both_ HOUSES _shall deem it necessary_," to propose amendments to the Constitution. The term "house" is here used as synonymous with a quorum. It has been suggested, however, that the use of a positive expression, in relation to the action of the Senate upon treaties, throws some doubt upon the meaning of the term "two thirds," as used in other parts of the Constitution. A treaty requires the concurrence of "two thirds of the senators _present_"; and it has been argued that the omission of this term in the other cases shows that two thirds of all the members are required in those cases. But it is to be remembered, that the Constitution makes a general provision as to what shall constitute a house for the transaction of business; that when it means that a particular function shall not be performed by such a house, or quorum, it establishes the exception by a particular provision, as when it requires two thirds of all the States to be present in the House of Representatives on the choice of a President, and makes a majority of all the States necessary to a choice; and that whether the function of the Senate in approving treaties is or is not a part of the business which under the general provision is required to be done in a "house" or quorum consisting of a majority of all the members, the Constitution does not speak of this function as being done by a "house," but it speaks of the "advice and consent of the _Senate_," to be given "by two thirds of the senators _present_." The use of the term "present" was necessary, therefore, in this connection, because no term had preceded it which would guide the construction to the conclusion intended; but in the other cases, the previous use of the term "house," defined to be a majority of all the members, determines the sense in which the term "two thirds" is to be understood, and makes it, as I humbly conceive, two thirds of a constitutional quorum. [200] _Ante_, Vol. I. 220, note, 226, note. [201] October 6, 1783, Journals, VIII. 423. [202] October 8. Ibid. 424, 425. [203] December 10, 11, 1784. Journals, X. 16-18. [204] December 20, 21. Ibid. 23, 24. [205] Passed December 23. Ibid. 29. [206] They removed from it October 2, 1788, on a notice from the Mayor of the city that repairs were to be made. [207] See _ante_, Vol. I. pp. 358-361. [208] See the conversation reported by Madison, Elliot, V. 374. [209] Elliot, V. 409, 410. See _post_, as to the power of the President to assemble and adjourn Congress. [210] Mr. Justice Story has stated in his Commentaries (§ 829), that this clause came into the Constitution in the _revised_ draft, near the close of the Convention, and was silently adopted, without opposition. This is a mistake. The clause was contained in the draft of the committee of detail, and was modified as stated in the text, on the 7th of August, after a full debate. Elliot, V. 377, 383-385. CHAPTER X REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE POWERS OF CONGRESS.--THE GRAND COMPROMISES OF THE CONSTITUTION RESPECTING COMMERCE, EXPORTS, AND THE SLAVE-TRADE. In the examination which has thus far been made of the process of forming the Constitution, the reader will have noticed the absence of any express provisions concerning the regulation of commerce, and the obtaining of revenues. A system of government had been framed, embracing a national legislature, in which the mode of representation alone had been determined with precision. The powers of this legislature had been described only in very general terms. It was to have "the legislative rights vested in Congress by the Confederation," and the power "to legislate in all cases for the general interests of the Union, and also in those to which the States were separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." It might undoubtedly have been considered that, as the want of a power in the Confederation to make uniform commercial regulations affecting the foreign and domestic relations of the States was one of the principal causes of the assembling of this Convention, such a power was implied in the terms of the resolution, which had declared the general principles on which the authority of the national legislature ought to be regulated. Still, it remained to be determined what kind of regulation of commerce was required by "the general interests of the Union," or how far the States were incompetent, by their separate legislation, to deal with the interests of commerce so as to promote "the harmony of the United States." In the same way, a power to obtain revenues might be implied on the same general principles. But whether the commercial power foreshadowed in these broad declarations was to be limited or unlimited; whether there were any special objects or interests to which it was not to extend; and whether the revenues of the government were to be derived from imposts laid at pleasure upon imports or exports, or both; whether they might be derived from excises on the manufactures or produce of the country; whether its power of direct taxation was to be exercised under further limitations than those already agreed upon for the apportionment of direct taxes among the States;--all these details were as yet entirely unsettled. Two subjects, one of which might fall within a general commercial power, and the other within a general power to raise revenues, had already been incidentally alluded to, and both were likely to create great embarrassment. General Pinckney had twice given notice that South Carolina could not accede to the new Union proposed, if it possessed a power to tax exports.[211] It had also become apparent, in the discussions and arrangements respecting the apportionment of representatives, that the possible encouragement of the slave-trade, which might follow an admission of the blacks into the rule of representation, was one great obstacle, in the view of the Northern States, to such an admission; and at the same time, that it was very doubtful whether all the Southern States would surrender to the general government the power to prohibit that trade.[212] The compromise which had already taken place on the subject of representation had settled the principles on which that difficult matter was to be arranged. But the power to increase the slave populations by continued importation had not been agreed to be surrendered; and unless some satisfactory and reasonable adjustment could be made on this subject, there could be no probability that the Constitution would be finally ratified by the people of the Northern States.[213] It is necessary, therefore, to look carefully at these two subjects, namely, the taxation of exports and the prohibition of the slave-trade. That a power to lay taxes or duties on exported products belongs to every government possessing a general authority to select the objects from which its revenues are to be derived, is a proposition which admits of little doubt. It is not to be doubted, either, that it is a power which may be attended with great benefit, not only for purposes of revenue, but for the encouragement of manufactures; and it is clear that it may often be used as a means of controlling the commercial policy of other countries, when applied to articles which they cannot produce, but which they must consume. A government that is destitute of this power is not armed with the most complete and effectual means for counteracting the regulations of foreign countries that bear heavily upon the industrial pursuits of its people, although it may have other and sufficient sources of revenue; and therefore, until an unrestricted commercial intercourse and a free exchange of commodities become the general policy of the world, to deny to any government a power over the exported products of its own country, is to place it at some disadvantage with all commercial nations that possess the power to enhance the price of commodities which they themselves produce. But, on the other hand, the practice of taxing the products of a country, as they pass out of its limits to enter into the consumption of other nations, can be beneficially exercised only by a government that can select and arrange the objects of such taxation so as to do nearly equal justice to all its producing interests. If, for example, the article of wine were produced only by a single province of France, and all the other provinces produced no commodities sought for by other nations, an export duty upon wine would fall wholly upon the single province where it was produced, and would place its production at an unequal competition with the wines of other countries. But France produces a variety of wines, the growth of many different provinces; and therefore, in the adjustment of an export duty upon wines, the government of that country, after a due regard to the demand for each kind or class of this commodity, has chiefly to consider the effect of such a tax in the competition with the same commodity produced by other nations. At the time of the formation of the Constitution of the United States, there was not a single production, common to all the States, of sufficient importance to become an article of general exportation. Indeed, there were no commodities produced for exportation by so many of the States, that a tax or duty imposed upon them on leaving the country would operate with anything like equality even in different sections of the Union. In fact, from the extreme northern to the extreme southern boundary of the Union, the exports were so various, both in kind and amount, that a tax imposed on an article the produce of the South could not be balanced by a tax imposed upon an article produced or manufactured at the North. How, for example, could the burden of an export duty on the tobacco of Virginia, or the rice or indigo of South Carolina, be equalized by a similar duty on the lumber or fish or flour of other States? Possibly, after long experience and the accumulation of the necessary statistics, an approach towards an equality of such burdens might have been made; but it could never have become more than an unsatisfactory approximation; and while the effect of such a tax at one end of the Union on the demand for the commodity subjected to it might be estimated,--because the opportunity for other nations to supply themselves elsewhere might be so precise as to be easily measured,--its effect at the other end of the Union, on another commodity, might be wholly uncertain, because the demand from abroad might be influenced by new sources of supply, or might from accidental causes continue to be nearly the same as before. However theoretically correct it might have been, therefore, to confer on the general government the same authority to tax exports as to impose duties on imported commodities,--and the argument for it drawn from the necessities for revenue and protection of manufactures was exceedingly strong,--the actual situation of the country made it quite impracticable to obtain the consent of some of the States to a full and complete revenue power. Several of the most important persons in the Convention were strongly in favor of it. Washington, Madison, Wilson, Gouverneur Morris, and Dickinson are known to have held the opinion, that the government would be incomplete, without a power to tax exports as well as imports. But the decided stand taken by South Carolina, whose exports for a single year were said by General Pinckney to have amounted to £600,000, the fruit of the labor of her slaves, probably led the committee of detail to insert in their report of a draft of the Constitution a distinct prohibition against laying any tax or duty on articles exported from any State. A similar question, in relation to the extent of the commercial power, was destined to arise out of the relations of the different States to the slave-trade. If the power to regulate commerce, that might be conferred upon the general government, was to be universal and unlimited, it must include the right to prohibit the importation of slaves. If the right to sanction or tolerate the importation of slaves, which, like all other political rights, belonged to the people of the several States as sovereign communities, was to be retained by them as an exception from the commercial power which they might confer upon the national legislature, that exception must be clearly and definitely established. For several reasons, the question was necessarily to be met, as soon as the character and extent of the commercial power should come into discussion. While the trade had been prohibited by all the other States, including Virginia and Maryland, it had only been subjected to a duty by North Carolina, and was subjected to a similar discouragement by South Carolina and Georgia. The basis of representation in the national legislature, in which it had been agreed that the slaves should be included in a certain ratio, created a strong political motive with the Northern States to obtain for the general government a power to prevent further importations. It was fortunate that this motive existed; for the honor and reputation of the country were concerned to put an end to this traffic. No other nation, it was true, had at that time abolished it; but here were the assembled States of America, engaged in framing a Constitution of government, that ought, if the American character was to be consistent with the principles of the American Revolution, to go as far in the recognition of human rights as the circumstances of their actual situation would admit. What was practicable to be done, from considerations of humanity, and all that could be successfully done, was the measure of their duty as statesmen, admitted and acted upon by the framers of the Constitution, including many of those who represented slaveholding constituencies, as well as the representatives of States that had either abolished both the traffic in slaves and the institution itself, or were obviously destined to do it. This just and necessary rule of action, however, which limited their efforts to what the actual circumstances of the country would permit, made a clear distinction between a prohibition of the future importation of slaves, and the manumission of those already in the country. The former could be accomplished, if the consent of the people of the States could be obtained, without trenching on their sovereign control over the condition of all persons within their respective limits. It involved only the surrender of a right to add to the numbers of their slaves by continued importations. But the power to determine whether the slaves then within their limits should remain in that condition, could not be surrendered by the people of the States, without overturning every principle on which the system of the new government had been rested, and which had thus far been justly regarded as essential to its establishment and to its future successful operation. It is not, therefore, to be inferred, because a large majority of the Convention sought for a power to prohibit the increase of slaves by further importation, that they intended by means of it to extinguish the institution of slavery within the States. So far as they acted from a political motive, they designed to take away the power of a State to increase its congressional representation by bringing slaves from Africa; and so far as they acted from motives of general justice and humanity, they designed to terminate a traffic which never has been and never can be carried on without infinite cruelty and national dishonor. That the individuals of an inferior race already placed in the condition of servitude to a superior one may, by the force of necessity, be rightfully left in the care and dominion of those on whom they have been cast, is a proposition of morals entirely fit to be admitted by a Christian statesman. That new individuals may rightfully be placed in the same condition, not by the act of Providence through the natural increase of the species, but by the act of man in transferring them from distant lands, is quite another proposition. The distinction between the two, so far as a moral judgment is concerned with the acts of the framers of the Constitution upon the circumstances before them, defines the limits of duty which they intended to recognize. No satisfactory means exist for determining to what extent a continuance of the importation of slaves was necessary, in an economical point of view, to the States of North Carolina, South Carolina, and Georgia. There is some reason to suppose that the natural increase of the slave population in Virginia at that period more than supplied her wants; and perhaps the less healthy regions of the more southern States may have still required foreign supplies in order to keep the lands already occupied under cultivation, or to make new lands productive.[214] All that is historically certain on this subject is, that the representatives of the three most southerly States acted upon the belief, that their constituents would not surrender the right to continue the importation of slaves, although they might, if left to themselves, discontinue the practice at some future time. These declarations, however, had not been made at the time when the principles on which the Constitution was to be framed were sent to the committee of detail. Nothing had yet occurred in the Convention, to make it certain that the power to import would be retained by any of the States. The committee of detail had, therefore, so far as the action of the Convention had gone, an unrestricted choice between a full and a limited commercial power. They consisted of three members from non-slaveholding and two from slaveholding States;[215] but as one of them, Mr. Rutledge of South Carolina, was one of the persons who subsequently announced to the Convention the position that would be taken by his own State and by North Carolina and Georgia, there can be no doubt that he announced the same determination in the committee. In their report, they shaped the commercial power accordingly. They provided that the legislature of the United States should have power to lay and collect taxes, duties, imposts, and excises; and to regulate commerce with foreign nations, and among the several States. But they also reported several restrictions upon both the revenue and commercial powers. Besides providing, in accordance with the ninth resolution adopted by the Convention, that direct taxation should be proportioned among the States according to the census, to be taken by a particular rule, they added the further restrictions, that no tax or duty should be laid by the national legislature on articles exported from any State, nor on the migration or importation of such persons as the several States might think proper to admit; that such migration or importation should not be prohibited; that no capitation tax should be laid, unless in proportion to the census; and that no navigation act should be passed without the assent of two thirds of the members present in each house. That the new government must have a direct revenue power, was generally conceded, and it was also generally admitted that it must have a power to regulate commerce with foreign countries. But the idea was more or less prevalent among the Southern statesmen, that the interest of their own States, considered as a distinct and separate interest from that of the commercial States, did not require a regulation of commerce by the general government. It is not easy to determine to what extent these views were correct. Taking into consideration nothing more than the fact, that the staple production of Virginia was tobacco, as it was also partly that of North Carolina; that rice and indigo were the great products of South Carolina and Georgia; and that neither of these four States possessed a large amount of shipping;--it might certainly be considered that an unrestricted foreign intercourse was important to them. But, on the other hand, if those States, by clothing the Union with a power to regulate commerce, were likely to subject themselves to a temporary rise of freights, the measures which might have that effect would also tend directly to increase Southern as well as Northern shipping, to augment the commercial marine of the whole country, and thus to increase its general maritime strength. The general security thus promoted was as important to one class of States as to another. The increase of the coasting trade would also increase the consumption of the produce of all the States. The great benefit, however, to be derived from a national regulation of commerce,--a benefit in which all the States would equally share, whatever might be their productions,--was undoubtedly the removal of the existing and injurious retaliations which the States had hitherto practised against each other.[216] Still, these advantages were indirect or incidental. The immediate and palpable commercial interests of different portions of the Union, regarded in the mass, were not identical; and it was in one sense true, that the power of regulating commerce was a concession on the part of the Southern States to the Northern, for which they might reasonably expect equivalent advantages, or which they might reasonably desire to qualify by some restriction. On the reception of the report of the committee of detail, and when the article relating to representation was reached, the consequences of agreeing that the slaves should be computed in the rule, taken in connection with an unrestrained power in the States to increase the slave populations by further importation, and with the exemption of exports from taxation, became more prominent, and more likely to produce serious dissatisfaction. The concession of the slave representation had been made by some of the Northern members, in the hope that it might be the means of strengthening the plan of government, and of procuring for it full powers both of revenue and of commercial regulation. But now, it appeared that, as to two very important points, the hands of the national legislature were to be absolutely tied. The importation of slaves could not be prohibited; exports could not be taxed. These restrictions seemed to many to have an inevitable tendency to defeat the great primary purposes of a national government. All must agree, that defence against foreign invasion and against internal sedition was one of the principal objects for which such a government was to be established. Were all the States then to be bound to defend each, and was each to be at liberty to introduce a weakness which would increase both its own and the general danger, and at the same time to withhold the compensation for the burden? If slaves were to be imported, why should not the exports produced by their labor supply a revenue, that would enable the general government to defend their masters? To refuse it, was so inequitable and unreasonable, said Rufus King, that he could not assent to the representation of the slaves, unless exports should be taxable;--perhaps he could not finally consent to it, under any circumstances.[217] Gouverneur Morris, with his accustomed ardor, went further still, and insisted on re-opening the subject of representation, now that the other features of the system were to be made to favor the increase of slaves, and to throw the burdens of maintaining the government chiefly upon the Northern States. It was idle, he declared, to say that direct taxation might be levied upon the slaveholding States in proportion to their representative population: for the general government could never stretch out its hand, and put it directly into the pockets of the people, over so vast a country. Its revenues must be derived from exports, imports, and excises. He therefore would not consent to the sacrifices demanded, and moved the insertion of the word "free" before the word "inhabitants," in the article regulating the basis of representation.[218] But there were few men in the Convention bold enough to hazard the consequences of unsettling an arrangement, which had cost so much labor and anxiety; which had been made as nearly correct in theory as the circumstances of the case would allow; and which was, in truth, the best practical solution of a great difficulty. Mr. Morris's motion received the vote of a single State only.[219] The great majority of the delegations considered it wiser to go on to the discussion of the proposed restrictions upon the revenue and commercial powers, in the hope that each of them might be considered and acted upon with reference to the true principles applicable to the subject, or that the whole might be adjusted by some agreement that would not disturb what had been settled with so much difficulty. The great embarrassment attending the proposed restriction upon the taxation of exports was, that, however the question might be decided, it would probably lose for the new government the support of some important members of the Convention. Those who regarded it as right that the government should have a complete revenue power, contended for the convenience with which a large staple production, in which America was not rivalled in foreign markets, could be made the subject of an export tax, that would in reality be paid by the foreign consumer. On the other side, the very facility with which such objects could be selected for taxation alarmed the States whose products presented the best opportunity for exercising this power. They did not deny the obvious truth, that the tax must ultimately fall on the consumer; but they considered it enough to surrender the power of levying duties upon imports, without giving up the control which each State now had over its own productions.[220] But there was also another question involved in the form in which the proposed restriction had been presented. It prohibited the national government from taxing exports, but imposed no restraint in this respect upon the power of the States. If they were to retain the power over their own exports, they would have the same right to tax the products of other States exported through their maritime towns. This power had been used to a great extent, and always oppressively. Virginia had taxed the tobacco of North Carolina; Pennsylvania had taxed the products of Maryland, of New Jersey, and of Delaware; and it was apparent, that every State, not possessed of convenient and accessible seaports, must hereafter submit to the same exactions, if this power were left unrestrained. Give it to the general government, said the advocates for a full revenue power, and the inconveniences attending its exercise by the separate States will be avoided. But those who were opposed to the possession of such a power by the general government, apprehended greater oppression by a majority of the States acting through the national legislature, than they could suffer at the hands of individual States. The eight Northern States, they said, had an interest different from the five Southern States, and in one branch of the legislature the former were to have thirty-six votes, and the latter twenty-nine. From considerations like these, united with others which would render it nearly impracticable to select the objects of such taxation so as to make it operate equally, the restriction prevailed.[221] The revenue power was thus shorn of one great branch of taxation, which, however difficult it might be to practise it throughout such a country as this, is part of the prerogatives of every complete government, which was believed by many to be essential to the success of the proposed Constitution, but which was resisted successfully by others, as oppressive to their local and peculiar interests. Was the commercial power to experience a like diminution from the full proportions of a just authority over the external trade of the States? Were the States, whose great homogeneous products, derived from the labor of slaves, would supply no revenue to the national treasury, to be left at liberty to import all the slaves that Africa could furnish? Were the commercial States to see the carrying trade of the country--embracing the very exports thus exempted from burdens of every kind, and thus stimulated by new accessions of slaves--pass into foreign bottoms, and be unable to protect their interests by a majority of votes in the national legislature? Was there to be no advantageous commercial treaty obtained from any foreign power, unless the measures needful to compel it could gain the assent of two thirds of Congress? Was the North to be shut out for ever from the West India trade, and was it at the same time to see the traffic in slaves prosecuted without restraint, and without the prospect or the hope of a final termination? These were grave and searching questions. The vote exempting exports from the revenue power could not be recalled. It had passed by a decided majority of the States; and many suffrages had been given for the exemption, not from motives of a sectional nature, but on account of the difficulty that must attend the exercise of the power, and from the conviction that such taxation is incorrect in principle. So far, therefore, the Southern States had gained all that they desired in respect to the revenue power, and now three of them, with great firmness, declared that the question in relation to the commercial power was, whether they should or should not be parties to the Union. If required to surrender their right to import slaves, North Carolina, South Carolina, and Georgia would not accept the Constitution, although they were willing to make slaves liable to an equal tax with other imports.[222] It was also manifest, that the clause which required a navigation act to be passed by two thirds of each house, was to be insisted on by some, although not by all, of the Southern members. Thus was a dark and gloomy prospect a second time presented to the framers of the Constitution. If, on the one side, there were States feeling themselves bound as a class to insist on certain concessions, on the other side were those by whom such concessions could not be made. The chief motive with the Eastern, and with most of the Northern States, in seeking a new union under a new frame of government, was a commercial one. They had suffered so severely from the effects of the commercial policy of England and other European nations, and from the incapacity of Congress to control that policy, that it had become indispensable to them to secure a national power which could dictate the terms and vehicles of commercial intercourse with the whole country. Cut off from the British West India trade by the English Orders in Council, the Eastern and Middle States required other means of counteracting those oppressive regulations than could be found in their separate State legislation, which furnished no power whatever for obtaining a single commercial treaty.[223] Besides these considerations, which related to the special interests of the commercial States, the want of a navy, which could only be built up by measures that would encourage the growth of the mercantile marine, and which, although needed for the protection of commerce, was also required for the defence of the whole country, made it necessary that the power to pass a navigation act should be burdened with no serious restrictions. The idea of requiring a vote of two thirds in Congress for the passage of a navigation act, founded on the assumed diversity of Northern and Southern, or the commercial and the planting interests, proceeded upon the necessity for a distinct protection of the latter against the former, by means of a special legislative check. To a certain extent, as I have already said, these interests, when regarded in their aggregates, offered a real diversity. But it did not follow that this peculiar check upon the power of a majority was either a necessary or an expedient mode of providing against oppressive legislation. In every system of popular government, there are great disadvantages in departing from the simple rule of a majority; and perhaps the principle which requires the assent of more than a majority ought never to be extended to mere matters of legislation, but should be confined to treaty stipulations, and to those fundamental changes which affect the nature of the government and involve the terms on which the different portions of society are associated together. It was undoubtedly the purpose of those who sought for this particular restriction, to qualify the nature of the government, in its relation to the interests of commerce. But the real question was, whether there existed any necessary reason for placing those interests upon a different footing from that of all other subjects of national legislation. The operation of the old rule of the Confederation, which required the assent of nine States in Congress to almost all the important measures of government, many of which involved no fundamental right of separate States, had revealed the inconveniences of lodging in the hands of a minority the power to obstruct just and necessary legislation. If, indeed, it was highly probable that the power, by being left with a majority, would be abused,--if the interests of the Eastern and Middle States were purely and wholly commercial, and would be likely so to shape the legislation of the country as to encourage the growth of its mercantile marine, at the expense of other forms of industry and enterprise, and no other suitable and efficient checks could be found,--then the restriction proposed might be proper and necessary. But in truth the separate interests of the Eastern and Middle States, when closely viewed, were not in all respects the same. Connecticut and New Jersey were agricultural States. New York and Pennsylvania, although interested in maritime commerce, were destined to be great producers of the most important grains. Maryland, although a commercial, was also an agricultural State. The new States likely to be formed in the West would be almost wholly agricultural, and would have no more shipping than might be required to move the surplus products of their soil upon their great inland lakes towards the shores of the Atlantic. All these States, existing and expectant, were interested to obtain commercial treaties with foreign countries; all needed the benefits of uniform commercial regulations; but they were not all equally interested in a high degree of encouragement to the growth of American shipping, by means of a stringent navigation act, that would bear heavily upon the Southern planter. Not only was there a very considerable protection against the abuse of its power by a sectional majority, in these more minute diversities of interest, but there were also two very efficient legislative checks upon that power already introduced into the government. If an unjust and oppressive measure had commanded a majority in the House, it might be defeated in the Senate, or, if that check should fail, it might be arrested by the executive. It had, nevertheless, been made part of the limitations upon the commercial power, embraced in the report of the committee of detail, that a navigation act should require a vote of two thirds of both branches of the legislature. The vote which adopted the prohibition against taxes on exports, taken on the 21st of August, was followed, on that day and the next, by an excited debate on the taxation of the slave-trade, in which the three States of Georgia, North Carolina, and South Carolina made the limitation upon the power of the Union over this traffic the condition of their accepting the Constitution. This debate was closed by the proposition of Gouverneur Morris, to refer the whole subject to a committee of one from each State, in order that the three matters of exports, the slave-trade, and a navigation act might form a bargain or compromise between the Northern and the Southern States.[224] But the prohibition against taxing exports had already been agreed to, and there remained to be committed only the proposed restriction against taxing or prohibiting the migration or importation of such persons as the States might see fit to admit, the restriction which required a capitation tax to conform to the census, and the proposed limitation upon the power to pass a navigation act. Thus, in effect, the questions to come before this committee were, whether the slave-trade should be excepted from both the commercial and revenue powers of the general government, and whether the commercial power should be subjected to a restriction which required a vote of two thirds in dealing with the commercial interests of the Union. We know very little of the deliberations of this committee; but as each State was equally represented in it, and as the position of the different sectional objects is quite clear, we can have no difficulty in forming an opinion as to the motives and purposes of the settlement which resulted from their action, or in obtaining a right estimate of the result itself. In the first place, then, we are to remember the previous concessions already made by the Northern States, and the advantages resulting from them. These concessions were the representation of the slaves and the exemption of exports from taxation. If the slaves had not been included in the system of representation, the Northern States could have had no political motive for acquiring the power to put an end to the slave-trade. If the exports of their staple productions had not been withdrawn from the revenue power, the Southern States could have had no very strong or special motive to draw them into the new Union; but with such an exemption, they could derive benefits from the Constitution as great as those likely to be enjoyed by their Northern confederates. Both parties, therefore, entered the final committee of compromise with a strong desire to complete the Union and to establish the new government. The Northern States wished for a full commercial power, including the slave-trade and navigation laws, to be dependent on the voices of a majority in Congress. The Southern States struggled to retain the right to import slaves, and to limit the enactment of navigation laws to a vote of two thirds. Both parties could be gratified only by conceding some portion of their respective demands. If the Northern States could accept a future, instead of an immediate, prohibition of the slave-trade, they could gain ultimately a full commercial power over all subjects, to be exercised by a national majority. If the Southern States could confide in a national majority, so far as to clothe them with full ultimate power to regulate commerce, they could obtain the continuance of the slave-trade for a limited period. Such was in reality the adjustment made and recommended by the committee. They proposed that the migration or importation of such persons as the several States then existing might think proper to admit, should not be prohibited by the national legislature before the year 1800, but that a tax or duty might be imposed on such persons, at a rate not exceeding the average of the duties laid on imports; that the clause relating to a capitation tax should remain; and that the provision requiring a navigation act to be passed by a vote of two thirds, should be stricken out.[225] No change was made in this arrangement, when it came before the Convention, except to substitute the year 1808 as the period at which the restriction on the commercial power was to terminate, and to provide for a specific tax on the importation of slaves, not exceeding ten dollars on each person.[226] The remaining features of this settlement, relating to a capitation tax and a navigation act, were sanctioned by a large majority of the States.[227] Thus, by timely and well-considered concessions on each side, was the slave-trade brought immediately within the revenue power of the general government, and also, at the expiration of twenty years, within its power to regulate commerce. By the same means, the commercial power, without any other restriction than that relating to the temporary toleration of the importation of slaves, was vested in a national majority. This result at once placed the foreign slave-trade by American vessels or citizens within the control of the national legislature, and enabled Congress to forbid the carrying of slaves to foreign countries; and at the end of the year 1808, it brought the whole traffic within the reach of a national prohibition.[228] Too high an estimate cannot well be formed, of the importance and value of this final settlement of conflicting sectional interests and demands. History has to thank the patriotism and liberality of the Northern States, for having acquired, for the government of the Union, by reasonable concessions, the power to terminate the African slave-trade. We know, from almost every day's experience since the founding of the government, that individual cupidity, which knows no geographical limits, which defies public opinion whether in the North or in the South, required and still requires the restraint and chastisement of national power. The separate authority of the States would have been wholly unequal to the suppression of the slave-trade: for even if they had all finally adopted the policy of a stringent prohibition, without a navy, and without treaties, they could never have contended against the bold artifice and desperate cunning of avarice, stimulated by the enormous gains which have always been reaped in this inhuman trade. The just and candid voice of History has also to thank the Southern statesmen who consented to this arrangement, for having clothed a majority of the two houses of Congress with a full commercial power. They felt, and truly felt, that this was a great concession. But they looked at what they had gained. They had gained the exemption of their staple productions from taxation as objects of foreign commerce; the enumeration of their slaves in the basis of Congressional representation; and the settlement of the slave-trade upon terms not offensive to State pride. They had also gained the Union, with its power to maintain an army and a navy,--with its power and duty to protect them against foreign invasion and domestic insurrection, and to secure their republican constitutions. They looked, therefore, upon the grant of the power to regulate commerce by the ordinary modes of legislation, in its relations to the interests of a great empire, whose foundations ought to be laid broadly and deeply on the national welfare.[229] They saw that the Revolution had cost the Eastern States enormous sacrifices of commercial wealth, and that the weakness of the Confederation had destroyed the little remnant of their trade.[230] They saw and admitted the necessity for an unrestrained control over the foreign commerce of the country, if it was ever to rise from the prostrate condition in which it had been placed by foreign powers. They acted accordingly; and by their action, they enabled the States of North Carolina, South Carolina, and Georgia to enter the new Union without humiliation and without loss.[231] Thus was accomplished, so far as depended on the action of this Convention, that memorable compromise, which gave to the Union its control over the commercial relations of the States with foreign nations and with each other. An event so fraught with consequences of the utmost importance cannot be dismissed without some of the reflections appropriate to its consideration. Nature had marked America for a great commercial nation. The sweep of the Atlantic coast, from the Bay of Fundy to the Gulf of Florida, comprehending twenty degrees of latitude, broken into capacious bays and convenient harbors, and receiving the inward flow of the sea into great navigable rivers that stretched far into the interior, presented an access to the ocean not surpassed by that of any large portion of the globe. This long range of sea-coast embraced all the varieties of climate that are found between a hard and sterile region, where summer is but the breath of a few fervid weeks, and the ever blooming tropics, where winter is unknown. The products of the different regions, already entering, or fit to enter, into foreign commerce, attested as great a variety of soils. The proximity of the country to the West Indies, where the Eastern and the Middle States could find the best markets for some of their most important exports, afforded the promise of a highly lucrative trade; while the voyage to the East Indies from any American port could be performed in as short a time as from England or Holland or France. In the South, there were great staples already largely demanded by the consumption of Europe. In the North, there were fisheries of singular importance, capable of furnishing enormous additions to the wealth of the country. Beyond the Alleghanies, the West, with its vast internal waters and its almost unequalled fertility, had been opened to a rapid emigration, which was soon to lay the foundation of new States, destined to be the abodes of millions of men. The very variety and extent of these interests had for many years occasioned a struggle for some mode of reconciling and harmonizing them all. But divided into separate governments, the commercial legislation of the States could produce nothing but the confusion and uncertainty which retaliation necessarily engenders. Different systems and rates of revenue were in force in seaports not a hundred miles apart, through which the inhabitants of other jurisdictions were obliged to draw their supplies of foreign commodities, and to export their own productions. The paper-money systems of the several States made the commercial value of coin quite different in different places, and gave an entirely insecure basis to trade. The reader, who has followed me through the preceding volume, has seen how the people of the United States, from the earliest stages of the Revolution, struggled to free themselves from these embarrassments;--how they commenced with a jealous reservation of State authority over all matters of commerce and revenue; how they undertook to supply the necessities of a central government by contributions which they had not the power to make good, because their commercial condition did not admit of heavy taxation; how they endeavored to pass from this system to a grant of temporary revenues and temporary commercial regulation, to be vested in the federal Union; how they found it impracticable to agree upon the principles and details of a temporary power; how they turned to separate commercial leagues, each with its immediate neighbors, and were disappointed in the result or frustrated in the effort; and how at last they came to the conception of a full and irrevocable surrender of commercial and fiscal regulations to a central legislature, that could grasp the interests of the whole country and combine them in one harmonious system. The influence of the commercial and revenue powers, thus obtained by the general government, on the condition of this country, has far exceeded the most sanguine hopes which the framers of the Constitution could have indulged. No one can doubt that the people of America owe to it both the nature and the degree of their actual prosperity;--and as the national prosperity has given them importance in the world, it is just and accurate to say, that commerce and its effects have elevated republican institutions to a dignity and influence which they have attained through no other of the forms or the spirit of society. Let the reader consider the interests of commerce, in their widest relations with all that they comprehend,--the interests of the merchant, the artisan, and the tiller of the soil being alike involved,--as the chief purpose of the new government given to this Union; let him contemplate this as the central object around which are arranged almost all the great provisions of the Constitution of the United States;--and he will see in it a wonderfully harmonious and powerful system, created for the security of property, and the promotion of the material welfare and prosperity of individuals, whatever their occupation, employment, or condition. That such a code of civil government should have sprung from the necessities of commerce, is surely one of the triumphs of modern civilization. It is not to be denied, that the sedulous care with which this great provision was made for the general prosperity has had the effect of impressing on the national character a strong spirit of acquisition. The character of a people, however, is to be judged not merely by the pursuit or the possession of wealth, but chiefly by the use which they make of it. If the inhabitants of the United States can justly claim distinction for the benevolent virtues; if the wealth that is eagerly sought and rapidly acquired is freely used for the relief of human suffering; if learning, science, and the arts are duly cultivated; if popular education is an object of lavish expenditure; if the institutions of religion, though depending on a purely voluntary support, are provided for liberally, and from conscientious motives;--then is the national spirit of acquisition not without fruits, of which it has no need to be ashamed. The objection, that the Constitution of the United States, and the immense prosperity which has flowed from it, were obtained by certain concessions in favor of the institution of slavery, results from a merely superficial view of the subject. If we would form a right estimate of the gain or loss to human nature effected by any given political arrangement, we must take into consideration the antecedent facts, and endeavor to judge whether a better result could have been obtained by a different mode of dealing with them. We shall then be able to appreciate the positive good that has been gained, or the positive loss that has been suffered. The prominent facts to be considered in this connection are, in the first place, that slavery existed, and would long exist, in certain of the States; and that the condition of the African race in those States was universally regarded as a matter of purely local concern. It could not in fact have been otherwise; for there were slaves in every State excepting Massachusetts and New Hampshire; and among the other States in which measures had been, or were likely to be, taken for the removal of slavery, there was a great variety of circumstances affecting the time and mode in which it should be finally extinguished. As soon as the point was settled, in the formation of the Constitution of the United States, that the State governments were to be preserved, with all their powers unimpaired which were not required by the objects of the national government to be surrendered to the Union, the domestic relations of their inhabitants with each other necessarily remained under their exclusive control. Those relations were not involved in the purposes of the Federal Union. So soon, also, as this was perceived and admitted, it became a necessary consequence of the admission, that the national authority should guarantee to the people of each State the right to shape and modify their own social institutions; for without this principle laid at the foundation of the Union, there could be no peace or security for such a mixed system of government. In the second place, we have to consider the fact, that, among the political rights of the States anterior to the national Constitution, was the right to admit or to prohibit the further importation of slaves;--a traffic not then forbidden by any European nation to its Colonies, but which had been interdicted by ten of the American States. The transfer of this right to the Federal Union was a purely voluntary act; it was not strictly necessary for the purposes for which it was proposed to establish the Constitution of the United States; although there were political reasons for which a part of the States might wish to acquire control over this subject, as well as moral reasons why all the States should have desired to vest that control in the general government. Three of the States, however, as we have seen, took a different view of their interest and duty, and declined to enter the new Union unless this traffic should be excepted from the power over commerce for a period of twenty years. It is quite plain, that, if these facts had been met and dealt with in a manner different from the settlement that was actually made, one of two consequences must have ensued;--either no Constitution at all could have been adopted, or there would have been a Union of some kind, from which three at least of the States must have been excluded. If the first, by far the most probable contingency, had happened, a great feebleness and poverty of society must have continued to be the lot of all these States; there must have been perpetual collisions and rival confederacies; there certainly would have been an indefinite continuance of the slave-trade, accompanied and followed by a great external pressure upon the States which permitted it, which would have led to a war of races, or to a frightful oppression of the slaves. Most of these evils would have followed the establishment of a partial confederacy. On the other hand, we are to consider what has been gained to humanity by the establishment of the Constitution. The extinction of the slave-trade, followed by a public opinion with reference to it that is as strong and reliable in the Southern as in the Northern States, was purchased at a price by no means unreasonable, when compared with the magnitude of the acquisition. The great prosperity and high civilization which are due to the commercial power of the Constitution have been a vast benefit to both races;--to the whites by the superior refinement they have created, and to the blacks by the gradual but certain amelioration of their condition. The social strength and security occasioned by constantly increasing wealth, combined with the acknowledgment and establishment of the doctrine which makes every State the uncontrolled arbiter of the domestic condition of its inhabitants, has put it in the power of those who have charge of the negro to deal prudently and wisely with their great problem, without the interference of those who could benefit neither race by their intervention. This, in every rational view of the subject, cannot but be regarded as one of the chief blessings conferred by the Constitution of the United States. It has made emancipation possible, where otherwise it would have been impossible, or where it could have been obtained only through the horrors of both servile and civil war. It has enabled local authorities to adapt changes to local circumstances. Its beneficent influences may be traced in the laws of the States, in the records of their jurisprudence, and in the advanced and advancing condition of their public sentiment; and he who should follow those influences in all their details, and count the sum of what it has effected for the moral and physical well-being of the subjected race, would find cause for devout gratitude to the Ruler of the Universe. Great as has been the increase of slaves in the United States during the last seventy years, there can be no question that the general improvement of their condition has been equally great, and that it has kept pace with the increasing prosperity of the country. That prosperity has enabled individual enterprise and benevolence to plant a colony upon the coast of Africa, which, after centuries of discipline and education, may yet be the means of restoring to its native soil, as civilized and Christian men, a race that came to us as heathens and barbarians. Surely, then, with such results to look back upon, with such hopes in the future, the patriot and the Christian can have no real cause for regret or complaint, that in a system of representative government, made necessary by controlling circumstances, the unimportant anomaly should be found, of a representation of men without political rights or social privileges; or that the question of emancipation, either for the mass or the individual, should be carefully secured to local authority; or even that the slave-trade should have been prosecuted for a few years, to be extinguished by America first of all the nations of the world. FOOTNOTES: [211] See Madison, Elliot, V. 302, 357. [212] See the remarks of Gouverneur Morris in the debate on the apportionment of representatives, in which he stated the dilemma precisely in this way. Elliot, V. 301. [213] No candid man, said Rufus King, could undertake to justify to them a system under which slaves were to continue to be imported, and to be represented, while the exports produced by their labor were not to pay any part of the expenses of the government which would be obliged to defend their masters against domestic insurrections or foreign attacks. Elliot, V. 391. [214] See the remarks of Mr. Ellsworth and General Pinckney, as reported by Mr. Madison, Elliot, V. 458, 459. [215] They were Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. I have classed Mr. Ellsworth among the representatives of non-slaveholding States; for although there were between two and three thousand slaves in Connecticut at this time, provision had already been made for its prospective and gradual abolition. It was not finally extinct in that State until after the year 1840. The United States census for 1790 returned 2,759 slaves for Connecticut; the census for 1840 returned 17; in the census for 1850 none were returned. A like gradual abolition took place in New Hampshire, Rhode Island, Vermont, New York, and Pennsylvania. In Massachusetts, slavery was abolished by the State Constitution of 1780. [216] See the remarks of Mr. Madison, Elliot, V. 490. [217] Madison, Elliot, V. 391, 392. [218] Ibid. 392, 393. [219] New Jersey. [220] The opposition to a power to tax exports was not confined to the members from North and South Carolina and Georgia. Ellsworth and Sherman of Connecticut, Mason of Virginia, and Gerry of Massachusetts considered such a power wrong in principle, and incapable of being exercised with equality and justice. [221] The vote was taken (August 21) upon so much of the fourth section of the seventh article of the reported draft, as affirmed that "no tax or duty shall be laid by the legislature on articles exported from any State." Massachusetts, Connecticut, Maryland, Virginia (General Washington and Mr. Madison _no_), North Carolina, South Carolina, Georgia, _ay_, 7; New Hampshire, New Jersey, Pennsylvania, Delaware, _no_, 4.--If the subject had been left in this position, exports would have been taxable by the States. The plan of restraining the power of the States over exports was subsequently adopted, after the compromise involving the revenue and commercial powers of the general government had been settled. [222] Elliot, V. 457-461. [223] See _ante_, Vol. I. Book III. Chap. IV., on the origin and necessity of the commercial power. [224] Elliot, V. 460. [225] Elliot, V. 470, 471. [226] Two grave objections were made to this settlement respecting the importation of slaves. Mr. Madison records himself as saying, in answer to the motion of General Pinckney to adopt the year 1808, that twenty years would produce all the mischief that could be apprehended from the slave-trade, and that so long a term would be more dishonorable to the American character, than to say nothing about it in the Constitution. But the real question was, whether the power to prohibit the importation at any time could be acquired for the Constitution; and the facts show that it could have been obtained only by the arrangement proposed and carried. The votes of seven States against four, given for General Pinckney's motion, show the convictions then entertained. The other objection (urged by Roger Sherman and Mr. Madison) was, that to lay a tax upon imported slaves implied an acknowledgment that men could be articles of property. But it appears from the statements of other members, also recorded by Madison, that it was part of the compromise agreed upon in committee, that the slave-trade should be placed under the revenue power, in consideration of its not being placed at once within the commercial power. It also appears that the tax was made to apply to the "_importation_ of such persons as the States might see fit to admit," until the year 1808, in order to include and to discourage the introduction of convicts. But the principal object was undoubtedly the slave-trade; and this particular phraseology was employed, instead of speaking directly of the importation of _slaves_ into the States of North Carolina, South Carolina, and Georgia, in order, on the one hand, not to give offence to those States, and on the other, to avoid offending those who objected to the use of the word "slaves" in the Constitution. Elliot, V. 477, 478. [227] That part of the compromise relating to the slave-trade, &c. was adopted in Convention by the votes of New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, _ay_, 7; New Jersey, Pennsylvania, Delaware, Virginia, _no_, 4. Maryland, Virginia, North Carolina, and Georgia voted for a proposition made by C. Pinckney, to postpone the report, in order to take up a clause requiring all commercial regulations to be passed by two thirds of each house. But on the rejection of this motion, the report of the compromise committee, recommending that a two-thirds vote for a navigation act be stricken out, was agreed to, _nem. con._; as was also the clause relating to a capitation tax. [228] See the note on the American abolition of the slave-trade, _ante_, Vol. I. p. 460. [229] See the remarks of John Rutledge. Madison, Elliot, V. 491. [230] General Pinckney. Ibid. 489. [231] The point respecting the slave-trade was insisted upon by the delegates of those three States, both as a matter of State pride and a matter of practical interest. They regarded the increase of their slave population by new importations as a thing of peculiarly domestic concern, the control of which they were unwilling to transfer to the general government. But they also contended for a political right which their States intended to exercise. The following table, taken from the United States Census, shows that in the twenty years which elapsed from 1790 to 1810 during eighteen of which the importation of slaves could not be prohibited by Congress, the slaves of those three States increased in a ratio so much larger than the rate of increase after the year 1808, as to make it apparent that it was not a mere abstraction on which they insisted. The right to admit the importation of slaves was exercised, and was intended to be exercised;--as some of the delegates of the three States declared in the Convention. PROGRESS OF THE SLAVE POPULATION FROM 1790 TO 1850, SHOWING THE INCREASE PER CENT IN EACH PERIOD OF TEN YEARS. North Carolina. South Carolina. Georgia. 1790 to 1800 32.53 36.46 102.99 1800 to 1810[A] 26.65 34.35 77.12 1810 to 1820 21.43 31.62 42.23 1820 to 1830 19.79 22.62 45.35 1830 to 1840[B] 0.08 3.68 29.15 1840 to 1850 17.38 17.71 35.85 [A] The constitutional power of Congress to prohibit the importation took effect and was exercised in 1808. [B] The great diminution in the rates of increase during this period is probably due to the removal of slaves into Alabama, Arkansas, Louisiana, and Texas. But while the census shows that the power to admit slaves was exercised freely during the twenty years that followed the adoption of the Constitution of the United States, it also shows that the States which insisted on retaining it for that period could well afford to surrender it at the stipulated time. In 1810, the proportion of the blacks of North Carolina to the whole population was 32.24 per cent, and in 1850 it was 36.36; in South Carolina the proportion in 1810 was 48.4, and in 1850, 58.93; in Georgia, in 1810 it was 42.4, and in 1850, 42.44. It is not probable, therefore, that the prosperity of those States has been diminished by the discontinuance of the slave-trade; for it is not likely that they could well sustain a much larger ratio of the blacks to the whites than that which now exists, and which will probably continue to be maintained at about the same point for a long period of time. CHAPTER XI. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE REMAINING POWERS OF CONGRESS.--RESTRAINTS UPON CONGRESS AND UPON THE STATES. In the last preceding chapter, the reader has traced the origin of the revenue and commercial powers, and of certain restrictions applied to them in the progress of those great compacts, by means of which they became incorporated into the Constitution. We have now to examine some other qualifications which were annexed to those powers after the first draft of the instrument had been prepared and reported by the committee of detail. That committee had presented a naked power to lay and collect taxes, duties, imposts, and excises,[232] with a certain restriction as to the taxation of exports, the final disposition of which has been already described; but they had designated no particular objects to which the revenues thus derived were to be applied. The general clause embracing the revenue power was affirmed unanimously by the Convention, on the 16th of August, leaving the exception of exports for future action. At a subsequent period we find the words, "to pay the debts and provide for the common defence and general welfare of the United States," added to the clause which empowers Congress to levy taxes and duties; and it is a somewhat important inquiry, how and with what purpose they were placed there. While the powers proposed by the committee of detail were under consideration, Mr. Charles Pinckney introduced several topics designed to supply omissions in their report, which were thereupon referred to that committee. The purpose of one of his suggestions was to provide, on the one hand, that funds appropriated for the payment of public creditors should not, during the time of such appropriation, be diverted to any other purpose; and, on the other hand, that Congress should be restrained from establishing perpetual revenues. Another of his suggestions contemplated a power to secure the payment of the public debt, and still another to prevent a violation of the public faith when once pledged to any public creditor.[233] Immediately after this reference, Mr. Rutledge moved for what was called a grand committee,[234] to consider the expediency of an assumption by the United States of the State debts; and after some discussion of the subject, such a committee was raised, and Mr. Rutledge's motion was referred to them, together with a proposition introduced by Mr. Mason for restraining grants of perpetual revenue.[235] Thus it appears that the principal subject involved in the latter reference was the propriety of inserting in the Constitution a specific power to make special appropriations for the payment of debts of the United States and of the several States, incurred during the late war for the common defence and general welfare; and not to make a declaration of the general purposes for which revenues were to be raised. Both committees, however, seemed to have been charged with the consideration of some restraint on the revenue power, with a view to prevent perpetual taxes of any kind. The grand committee reported first, presenting the following special provision:--"The legislature of the United States shall have power to fulfil the engagements which have been entered into by Congress, and to discharge, as well the debts of the United States, as the debts incurred by the several States during the late war for the common defence and general welfare."[236] On the following day, the committee of detail presented a report, recommending that at the end of the clause already adopted, which contained the grant of the revenue power, the following words should be added: "for payment of the debts and necessary expenses of the United States; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than ----years."[237] Two distinct propositions were thus before the Convention. One of them contemplated a qualification of the revenue power, the other did not. One was to give authority to Congress to pay the revolutionary debt, both of the United States and of the States, and to fulfil all the engagements of the Confederation; the other was to declare that revenues were to be raised and taxes levied for the purpose of paying the debts and necessary expenses of the United States, limiting all revenue laws, excepting those which were to appropriate specific funds to the payment of interest on debts or loans, to a term of years. When these propositions came to be acted upon, that reported by the grand committee was modified into the declaration that "all debts contracted and engagements entered into, by or under the authority of Congress, shall be as valid against the United States, under this Constitution, as under the Confederation." The State debts were thus left out; the declaration was prefixed, as an amendment, to the clause which granted the revenue power, and was thus obviously no qualification of that power.[238] But it was thought by Mr. Sherman, that the clause for laying taxes and duties ought to have connected with it an express provision for the payment of the old debts; and he accordingly moved to add to that clause the words, "for the payment of said debts, and for the defraying the expenses that shall be incurred for the common defence and general welfare." This was regarded by the Convention as unnecessary, and was therefore not adopted.[239] But the provision reported by the committee of detail, which was intended as a qualification of the revenue power, by declaring the objects for which taxes and duties were to be levied, had not yet been acted upon, and on the 31st of August, this, with all other matters not disposed of, was referred to a new grand committee, who, on the 4th of September, introduced an amendment to the revenue clause, which made it read as follows:--"The legislature shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States." This amendment was unanimously adopted;[240] and when the Constitution was revised, at the close of the proceedings, the declaration which made the debts and engagements of the Confederation obligatory upon the new Congress, was separated from the context of the revenue clause, and placed by itself in the _sixth_ article. There is one other restraint upon the revenue, as well as upon the commercial power, the history of which now demands our inquiries. But in order to understand it correctly, it will be necessary for the reader to recur to the position in which the revenue and commercial powers were left by the sectional compromises described in the last chapter. The struggle between the Northern and the Southern States concerning the limitations of those powers turned, as we have seen, on certain restrictions desired by the latter. They wished to have exports excepted out of the revenue power; they wished to have a vote of two thirds made necessary to the passage of any commercial regulation; and three of them wished to have the slave-trade excepted from both the revenue and the commercial powers. We have seen that the result of the sectional compromises was to leave the commercial and revenue powers unlimited, excepting by the saving in relation to the slave-trade; that they left the revenue power unlimited, excepting by the restriction concerning exports and a capitation tax; and that the commercial power was to be exercised, like other legislative powers, by a majority in Congress. General commercial and revenue powers, then, without other restrictions than these, would enable Congress to collect their revenues where they should see fit, without obliging them to adopt the old ports of entry of the States, or to consider the place where a cargo was to be unladen. They might have custom-houses in only one place in each State, or in only such States as they might choose to select, and might thus compel vessels bound from or to all the other States to clear or enter at those places. But, on the other hand, a constitutional provision which would require them to establish custom-houses at the old ports of entry of the States, without leaving them at liberty to establish other ports of entry, or to compel vessels to receive on board revenue officers before they had reached their ports of destination, would create opportunities and facilities for smuggling. It appears that the people of Maryland felt some apprehension that an unrestricted power to make commercial and fiscal regulations might result in compelling vessels bound to or from Baltimore to enter or clear at Norfolk, or some other port in Virginia. The delegates of Maryland accordingly introduced a proposition, which embraced two ideas; first, that Congress shall not oblige vessels, domestic or foreign, to enter or pay duties or imposts in any other State than in that to which they may be bound, or to clear from any other State than that in which their cargoes may be laden; secondly, that Congress shall not induce vessels to enter or clear in one State in preference to another, by any privileges or immunities.[241] This proposition became the basis of that clause of the Constitution, which declares that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another."[242] It was while this subject of the equal operation of the commercial and revenue powers upon the different States was under consideration, that the further provision was devised and incorporated into the Constitution, which requires all duties, imposts, and excises to be uniform throughout the United States. This clause, in the final revision of the instrument, was annexed to the power of taxation.[243] The commercial power, besides being subjected to the restrictions which have been thus described, was extended to a subject not embraced in it by the report of the committee of detail. They had included in it "commerce with foreign nations, and among the several States";--meaning, by the former term, not to include the Indian tribes upon this continent, but all other communities, civilized and barbarian, foreign to the people of the United States. By the system which had always prevailed in the relations of Europeans and their descendants with the Indians of America, those tribes had constantly been regarded as distinct and independent political communities, retaining their original rights, and among them the undisputed possession of the soil; subject to the exclusive right of the European nation making the first discovery of their territory to purchase it. This principle, incorporated into the public law of Europe at the time of the discovery and settlement of the New World, and practised by general consent of the nations of Europe, was the basis of all the relations maintained with the Indian tribes by the imperial government, in the time of our colonial state, by our Revolutionary Congress, and by the United States under the Confederation. It recognized the Indian tribes as nations, but as nations peculiarly situated, inasmuch as their intercourse and their power to dispose of their landed possessions were restricted to the first discoverers of their territory. This peculiar condition drew after it two consequences;--first, that, as they were distinct nations, they could not be treated as part of the subjects of any one of the States, or of the United States; and secondly, that, as their intercourse and trade were subjected to restraint, that restraint would be most appropriately exercised by the federal power. So general was the acquiescence in these necessities imposed by the principle of public law which defined the condition of the Indian tribes, that during the whole of the thirteen years which elapsed from the commencement of the Revolution to the adoption of the Constitution, the regulation of intercourse with those tribes was left to the federal authority. It was tacitly assumed by the Revolutionary Congress, and it was expressly conferred by the Articles of Confederation. The provision of the Confederation on this subject gave to the United States the exclusive right and power "of regulating the trade and managing all affairs with the Indians not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated." The exception of such Indians as were members of any State, referred to those broken members of tribes who had lost their nationality, and had become absorbed as individuals into the political community of the whites. With all other Indians, remaining as distinct and self-governing communities, trade and intercourse were subject to the regulation of Congress; while at the same time each State retained to itself the regulation of its commerce with all other nations. The broad distinction thus early established, and thus perpetuated in the Confederation, between commerce with the Indian tribes, and commerce with "foreign nations," explains the origin and introduction of a special provision for the former, as distinguished from the latter, in the Constitution of the United States. For although there might have been some reason to contend that commerce with "foreign nations"--if the grant of the commercial power had not expressly embraced the Indian tribes--would have extended to those tribes, as nations foreign to the United States, yet the entire history of the country, and the peculiarity of the intercourse needful for their security, made it eminently expedient that there should be a distinct recognition of the Indian communities, in order that the power of Congress to regulate all commerce with them might not only be as ample as that relating to foreign nations, but might stand upon a distinct assertion of their condition as _tribes_. Accordingly, Mr. Madison introduced the separate proposition "to regulate affairs with the Indians, as well within as without the limits of the United States";[244] and the committee to whom it was referred gave effect to it, by adding the words, "and with the Indian tribes," to the end of the clause containing the grant of the commercial power.[245] The remaining powers of Congress may be considered in the order in which they were acted upon by the Convention. The powers to establish a uniform rule of naturalization, to coin money and regulate the value thereof and of foreign coin, and fix the standard of weights and measures, were adopted without discussion and with entire unanimity, as they had been proposed in the draft prepared by the committee of detail. The power to establish post-offices was extended to embrace post-roads.[246] These were succeeded by the subject of borrowing money and emitting bills on the credit of the United States; a power that was proposed to be given by the committee of detail, while they at the same time proposed to restrain the States from emitting bills of credit. I have not been able to discover upon what ground it was supposed to be proper or expedient to confer a power of emitting bills of credit on the United States, and to prohibit the States from doing the same thing. That the same thing was in contemplation in the two provisions reported by the committee, sufficiently appears from the debates and from the history of the times. The object of the prohibition on the States was to prevent the issue and circulation of paper money; the object of the proposed grant of power to the United States was to enable the government to employ a paper currency, when it should have occasion to do so. But the records of the discussions that have come down to us do not disclose the reasons which may have led to the supposition that a paper currency could be used by the United States with any more propriety or safety than by a State. One of the principal causes which had led to the experiment of making a national government with power to prevent such abuses, had been the frauds and injustice perpetrated by the States in their issues of paper money; and there was at this very time a loud and general outcry against the conduct of the people of Rhode Island, who had kept themselves aloof from the national Convention, for the express purpose, among others, of retaining to themselves the power to issue such a currency. It is possible that the phrase "emit bills on the credit of the United States" might have been left in the Constitution, without any other danger than the hazards of a doubtful construction, which would have confined its meaning to the issuing of certificates of debt under the power to "borrow money." But this was not the sense in which the term "bills of credit" was generally received throughout the country, nor the sense intended to be given to it in the clause which contained the prohibition on the States. The well-understood meaning of the term had reference to paper issues, intended to circulate as currency, and bearing the public promise to pay a sum of money at a future time, whether made or not made a legal tender in payment of debts. It would have been of no avail, therefore, to have added a prohibition against making such bills a legal tender. If a power to issue them should once be seen in the Constitution, or should be suspected by the people to be there, wrapt in the power of borrowing money, the instrument would array against itself a formidable and probably a fatal opposition. It was deemed wiser, therefore, even if unforeseen emergencies might in some cases make the exercise of such a power useful, to withhold it altogether. It was accordingly stricken out, by a vote of nine States against two, and the authority of Congress was thus confined to borrowing money on the credit of the United States, which appears to have been intended to include the issuing of government notes not transferable as currency.[247] The clauses which authorize Congress to constitute tribunals inferior to the Supreme Court,[248] and to make rules as to captures on land and water,[249]--the latter comprehending the grant of the entire prize jurisdiction,--were assented to without discussion.[250] Then came the consideration of the criminal jurisdiction in admiralty, and that over offences against the law of nations. The committee of detail had authorized Congress "to declare the law and punishment of piracies and felonies committed on the high seas, ... and of offences against the law of nations." The expression to "declare the law," &c. was changed to the words "define and punish," for the following reason. Piracy is an offence defined by the law of nations, and also by the common law of England. But in those codes a single crime only is designated by that term.[251] It was necessary that Congress should have the power to declare whether this definition was to be adopted, and also to determine whether any other crimes should constitute piracy. In the same way, the term "felony" has a particular meaning in the common law, and it had in the laws of the different States of the Union a somewhat various meaning. It was necessary that Congress should have the power to adopt any definition of this term, and also to determine what other crimes should be deemed felonies. So also there were various offences known to the law of nations, and generally regarded as such by civilized States. But before Congress could have power to punish for any of those offences, it would be necessary that they, as the legislative organ of the nation, should determine and make known what acts were to be regarded as offences against the law of nations; and that the power to do this should include both the power to adopt from the code of public law offences already defined by that code, and to extend the definition to other acts. The term "declare" was therefore adopted expressly with a view to the ascertaining and creating of offences, which were to be treated as piracies and felonies committed on the high seas, and as offences against the law of nations.[252] The same necessity for an authority to prescribe a previous definition of the crime of counterfeiting the securities and current coin of the United States would seem to have been felt; and it was probably intended to be given by the terms "to provide for the punishment of" such counterfeiting.[253] The power to "declare" war had been reported by the committee as a power to "make" war. There was a very general acquiescence in the propriety of vesting the war power in the legislature rather than the executive; but the former expression was substituted in place of the latter, in order, as it would seem, to signify that the legislature alone were to determine formally the state of war, but that the executive might be able to repel sudden attacks.[254] The clause which enables Congress to grant "letters of marque and reprisal" was added to the war power, at a subsequent period, on the recommendation of a committee to whom were referred sundry propositions introduced by Charles Pinckney, of which this was one.[255] In addition to the war power, which would seem to involve of itself the authority to raise all the necessary forces required by the exigencies of a war, the committee of detail had given the separate power "to raise armies," which the Convention enlarged by adding the term to "support."[256] This embraced standing armies in time of peace, and, as the clause thus amended would obviously allow, such armies might be enlarged to any extent and continued for any time. The nature of the government, and the liberties and the very prejudices of the people, required that some check should be introduced, to prevent an abuse of this power. A limitation of the number of troops that Congress might keep up in time of peace was proposed, but it was rejected by all the States as inexpedient and impracticable.[257] Another check, capable of being adapted to the proper exercise of the power itself, was to be found in an idea suggested by Mr. Mason, of preventing a perpetual revenue.[258] The application of this principle to the power of raising and supporting armies would furnish a salutary limitation, by requiring the appropriations for this purpose to pass frequently under the review of the representatives of the people, without embarrassing the exercise of the power itself. Accordingly, the clause now in the Constitution, which restricts the appropriation of money to the support of the army to a term not longer than two years, was added to the power of raising and supporting armies.[259] Authority "to provide and maintain a navy" was unanimously agreed as the most convenient definition of the power, and to this was added, from the Articles of Confederation, the power "to make rules for the government and regulation of the land and naval forces."[260] The next subject which required consideration was the power of the general government over the militia of the States. There were few subjects dealt with by the framers of the Constitution exceeding this in magnitude, in importance, and delicacy. It involved not only the relations of the general government to the States and the people of the States, but the question whether and how far the whole effective force of the nation could be employed for national purposes and directed to the accomplishment of objects of national concern. The mode in which this question should be settled would determine, in a great degree, and for all time, whether the national power was to depend, for the discharge of its various duties in peace and in war, upon standing armies, or whether it could also employ and rely upon that great reservation of force that exists in all countries accustomed to enroll and train their private citizens to the use of arms. The American Revolution had displayed nothing more conspicuously than the fact, that, while the militia of the States were in general neither deficient in personal courage, nor incapable of being made soldiers, they were inefficient and unreliable as troops. One of the principal reasons for this was, that, when called into the field in the service of the federal power, the different corps of the several States looked up to their own local government as their sovereign; and being amenable to no law but that of their own State, they were frequently indisposed to recognize any other authority. But a far more powerful cause of their inefficiency lay in the fact that they were not disciplined or organized or armed upon any uniform system. A regiment of militia drawn from New Hampshire was a very different body from one drawn from New York, or Pennsylvania, or New Jersey, or South Carolina. The consequence was, that when these different forces were brought to act together, there were often found in the same campaign, and sometimes in the same engagement, portions of them in a very respectable state of discipline and equipment, and others in no state of discipline or equipment at all. The necessity, therefore, for a uniform system of disciplining and arming the militia was a thing well ascertained and understood, at the time of the formation of the Constitution. But the control of this whole subject was a part of the sovereignty of each State, not likely to be surrendered without great jealousy and distrust; and one of the most delicate of the tasks imposed upon the Convention was that of determining how far and for what purposes the people of the several States should be asked to confer upon the general government this very important part of their political sovereignty. One thing, however, was clear;--that, if the general government was to be charged with the duty of undertaking the common defence against an external enemy, or of suppressing insurrection, or of protecting the republican character of the State constitutions, it must either maintain at all times a regular army suitable for any such emergency, or it must have some power to employ the militia. The latter, when compared with the resource of standing armies, is, as was said of the institution of chivalry, "the cheap defence of nations"; and although no nation has found, or will be likely to find, it sufficient, without the maintenance of some regular troops, the nature of the liberties inherent in the construction of the American governments, and the whole current of the feelings of the American people, would lead them to the adoption of a policy that might restrain, rather than encourage, the growth of a permanent army. So far, therefore, it seemed manifest, from the duties which were to be imposed on the government of the Union, that it must have a power to employ the militia of the States; and this would of necessity draw after it, if it was to be capable of a beneficial exercise, the power to regulate, to some extent, their organization, armament, and discipline. But the first draft of the Constitution, prepared by the committee of detail, contained no express power on this subject, excepting "to call forth the aid of the militia in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions."[261] Possibly it might have been contended, after the Constitution had gone into operation, that the general power to make all laws necessary and proper for the execution of the powers specially enumerated, would enable Congress to prescribe regulations of the force which they were authorized to employ, since the authority to employ would seem to involve the right to have the force kept in a fit state to be employed. But this would have been a remote implication of power, too hazardous to be trusted; and it at once occurred to one of the wisest and most sagacious of the statesmen composing the Convention, who, though he never signed the Constitution, exercised a great and salutary influence in its preparation,--Mr. Mason of Virginia,--that an express and unequivocal power of regulating the militia must be conferred. He stated the obvious truth, that, if the disciplining of the militia were left in the hands of the States, they never would concur in any one system; and as it might be difficult to persuade them to give up their power over the whole, he was at first disposed to adopt the plan of placing a part of the militia under the control of the general government, as a select force.[262] But he, as well as others, became satisfied that this plan would not produce a uniformity of discipline throughout the entire mass of the militia. The question, therefore, resolved itself practically into this,--what should be the nature and extent of the control to be given to the general government, assuming that its control was to be applicable to the entire militia of the several States. This important question, involved in several distinct propositions, was referred to a grand committee of the States.[263] It was by them that the plan was digested and arranged by which Congress now has the power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;[264]--a provision that was adopted by a large majority of the States. The clause reported by the committee of detail was also adopted, by which Congress is enabled to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.[265] The next subject in the order of the report made by the committee of detail was that general clause now found at the close of the enumeration of the express powers of Congress, which authorizes them "to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."[266] Nothing occurred in the proceedings on this provision which throws any particular light upon its meaning, excepting a proposition to include in it, expressly, the power to "establish all offices" necessary to execute the powers of the Constitution; an addition which was not made, because it was considered to be already implied in the terms of the clause.[267] The subjects of patents for useful inventions and of copyrights of authors appear to have been brought forward by Mr. Charles Pinckney. They gave rise to no discussion in the Convention, but were considered in a grand committee, with other matters, and there is no account of the views which they took of this interesting branch of the powers of Congress. We know, however, historically, that these were powers not only possessed by all the States, but exercised by some of them, before the Constitution of the United States was formed. Some of the States had general copyright laws, not unlike those which have since been enacted by Congress;[268] but patents for useful inventions were granted by special acts of legislation in each case. When the power to legislate on these subjects was surrendered by the States to the general government, it was surrendered as a power to legislate for the purpose of securing a natural right to the fruits of mental labor. This was the view of it taken in the previous legislation of the States, by which the power conferred upon Congress must of course, to a large extent, be construed. Such are the legislative powers of Congress, which are to be exercised within the States themselves;--and it is at once obvious, that they constitute a government of limited authority. The question arises, then, whether that authority is anywhere full and complete, embracing all the powers of government and extending to all the objects of which it can take cognizance. It has already been seen, that, when provision was made for the future acquisition of a seat of government, exclusive legislation over the district that might be acquired for that purpose was conferred upon Congress.[269] In the same clause, the like authority was given over all places that might be purchased, with the consent of any State legislature, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.[270] All the other places to which the authority of the United States can extend are included under the term "territories," which are out of the limits and jurisdiction of any State. As this is a subject which is intimately connected with the power to admit new States into the Union, we are now to consider the origin and history of the authority given to Congress for that purpose. In examining the powers of Congress contained in the first article of the Constitution, the reader will not find any power to admit new States into the Union; and while he will find there the full legislative authority to govern the District of Columbia and certain other places ceded to the United States for particular purposes, of which I have already spoken, he will find no such authority there conferred in relation to the territory which had become the property of the United States by the cession of certain of the States before and after the adoption of the Articles of Confederation. If this power of legislation exists as to the territories, it is to be looked for in another connection; and although it is not the special province of this work to discuss questions of construction, it is proper here to state the history of those portions of the Constitution which relate to this branch of the authority of Congress. In the first volume of this work, I have given an account of the origin of the Northwestern Territory, of its relations to the Union, and of the mode in which the federal Congress had dealt with it down to the time when the national Convention was assembled.[271] From the sources there referred to, and from others to which reference will now be made, it may be convenient to recapitulate what had been done or attempted by the Congress of the Confederation. It appears that during the preparation of the Articles of Confederation an effort was made to include in them a grant of express power to the United States in Congress to ascertain and fix the western boundaries of the existing States, and to lay out the territory beyond the boundaries that were to be thus ascertained into new States. This effort totally failed. It was founded upon the idea that the land beyond the rightful boundaries of the old States was already, or would by the proposed grant of power to ascertain those boundaries become, the common property of the Union. But the States, which then claimed an uncertain extension westward from their actual settlements, were not prepared for such an admission, or such a grant; and accordingly the Articles of Confederation, which were issued in 1777 and took effect in 1781, contained no express power to deal with landed property of the United States, and no provision which could safely be construed into a power to form and admit new States out of then unoccupied lands anywhere upon the continent. Still, the Articles were successively ratified by some of the States, and finally became established, in the express contemplation that the United States should be made the proprietor of such lands, by the cession of the States which claimed to hold them. In order to procure such cessions, as the means of inducing a unanimous accession to the confederacy, the Congress in 1780 passed a resolve, in which they promised to dispose of the lands for the common benefit of the United States, to settle and form them into distinct republican States, and to admit such States into the Union on an equal footing with its present members.[272] The great cession by Virginia, made in 1784, was immediately followed by another resolve, for the regulation of the territory thus acquired.[273] This resolve, as originally reported by Mr. Jefferson, embraced a plan for the organization of temporary governments in certain States which it undertook to describe and lay out in the Western territory, and for the admission of those States into the Union. In one particular, also, it undertook, as it was first reported, to regulate the personal rights or relations of the settlers, by providing that, after the year 1800, slavery, or involuntary servitude except for crime, should not exist in any of the States to be formed in the territory. But this clause was stricken out before the resolve was passed, and its removal left the measure a mere provision for the political organization of temporary and permanent governments of States, and for the admission of such States into the Union. So far as personal rights or relations were involved in it, the settlers were authorized to adopt, for a temporary government, the constitution and laws of any one of the original States, but the laws were to be subject to alteration by their ordinary legislature. The conditions of their admission into the Union referred solely to their political relations to the United States, or to the rights of the latter as the proprietor of the ungranted lands. In about a year from the passage of this measure introduced by Mr. Jefferson, and after he had gone on his mission to France, an effort was made by Mr. King to legislate on the subject of the immediate and perpetual exclusion of slavery from the States described in Mr. Jefferson's resolve. Mr. King's proposition was referred to a committee, but it does not appear that it was ever acted upon.[274] The cessions of Massachusetts and Connecticut followed, in 1785 and 1786. Within two years from this period, such had been the rapidity of emigration and settlement, and so inconvenient had become the plan of 1784, that Congress felt obliged to legislate anew on the whole subject of the Northwestern Territory, and proceeded to frame and adopt the Ordinance of July 13, 1787. This instrument not only undertook to make political organizations, and to provide for the admission of new States into the Union, but it also dealt directly with the rights of individuals. Its exclusion of slavery from the territory is well known as one of its fundamental articles, not subject to alteration by the people of the territory, or their legislature.[275] The power of Congress to deal with the admission of new States was not only denied at the time, but its alleged want of such power was one of the principal reasons which were said to require a revision of the federal system. It does not appear that the subject of legislation on the rights or condition of persons attracted particular attention; nor do we know, from anything that has come down to us, that the clause relating to slavery was stricken from Mr. Jefferson's resolve in 1784, upon the special ground of a want of constitutional power to legislate on such a question. But Mr. Jefferson has himself informed us, that a majority of the States in Congress would not consent to construe the Articles of Confederation as if they had reserved to nine States in Congress power to admit new States into the Union from the territorial possessions of the United States; and that they so shaped his measure, as to leave the question of power and the rule for voting to be determined when a new State formed in the territory should apply for admission.[276] It seems, also, that although the power to frame territorial governments, to organize States and admit them into the Union, was assumed in the Ordinance of 1787, the Congress of the Confederation never acted upon the power so far as to admit a State.[277] Finally, we are told by Mr. Madison, in the Federalist, that all that had been done in the Ordinance by the Congress of the Confederation, including the sale of lands, the organization of governments, and the prescribing of conditions of admission into the Union, had been done "without the least color of constitutional authority";[278]--an assertion which, whether justifiable or not, shows that the power of legislation was by some persons strenuously denied.[279] With regard to the powers of Congress, under the Confederation, to erect new States in the Northwestern Territory, and to admit them into the Union, the truth seems to be this. There is no part of the Articles of Confederation which can be said to confer such a power; and, in fact, when the Articles were framed, the Union, although it then existed by an imperfect bond, not only possessed no such territory, but it did not then appear likely to become the proprietor of lands, claimed by certain of the States as the successors of the crown of Great Britain, and lying within what they regarded as their original chartered limits. The refusal of those States to allow the United States to determine their boundaries, made it unnecessary to provide for the exercise of authority over a public domain. But in the interval between the preparation of the Articles and their final ratification, a great change took place in the position of the Union. It was found that certain of the smaller States would not become parties to the Confederation, if the great States were to persist in their refusal to cede to the Union their claims to the unoccupied Western lands; and although the States which thus held themselves back, for a long time, from the ratification of the Articles, finally adopted them, before the cessions of Western territory were made, they did so upon the most solemn assertion that they expected and confided in a future relinquishment of their claims by the other States. Those just expectations were fulfilled. By the acts of cession, and by the proceedings of Congress which invited them, the United States not only became the proprietors of a great public domain, but they received that domain upon the express trust that its lands should be disposed of for the common benefit, and that the country should be settled and formed into republican States, and that those States should be admitted into the Union. In these conveyances, made and accepted upon these trusts, there was a unanimous acquiescence by the States. While, therefore, in the formal instrument under which the Congress was organized, and by which the United States became a corporate body, there was no article which looked to the admission of new States into that body, formed out of territory thus acquired, and no power was conferred to dispose of such lands or govern such territory, there were, outside of that instrument, and closely collateral to it, certain great compacts between the States, arising out of deeds of cession and the formal guaranties by which those cessions had been invited, and with which they had been received, which proceeded as if there were a competent authority in the United States in Congress to provide for the formation of the States contemplated, and for their admission into the Union. Strictly speaking, however, there was no such authority. It was to be gathered, if at all, from public acts and general acquiescence, and could not be found in the instrument that formed the charter and established the powers of the Congress. It was an authority, therefore, liable to be doubted and denied; it was one for the exercise of which the Congress was neither well fitted nor well situated; and it was moreover so delicate, so extensive, and so different from all the other powers and duties of the government, as to make it eminently necessary to have it expressly stated and conferred in the instrument under which all the other functions of the government were to be exercised.[280] Such was the state of things at the period of the formation of the Constitution; and as we are to look for the germ of every power embraced in that instrument in some stage of the proceedings which took place in the course of its preparation, it is important at once to resort to the first suggestion of any authority over these subjects. In doing so, we are to remember that the United States had accepted cessions of the Northwestern Territory, impressed with two distinct trusts: first, that the country should be settled and formed into distinct republican States, which should be admitted into the Union; secondly, that the lands should be disposed of for the common benefit of all the States.[281] Accordingly, we find in the plan of government presented by Governor Randolph at the opening of the Convention, a resolution declaring "that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the national legislature less than the whole."[282] This resolution remained the same in phraseology and in purpose through all the stages to which the several propositions that formed the outline of the new government were subjected, down to the time when they were sent to the committee of detail for the purpose of having the Constitution drawn out. Looking to the manifest want of power in the Confederation to admit new States into the Union; to the probability that Vermont, Kentucky, Tennessee (then called Franklin), and Maine,--none of which were embraced in any cessions that had then been made to the United States,--might become separate States; and to the prospective legislation of the Ordinance of 1787 concerning the admission of States that were to be formed in the territory northwest of the Ohio, which had been ceded to the Union;--it seems quite certain that the purpose of the resolution was to supply a power to admit new States, whether formed from the territory of one of the existing States, or from territory that had become the exclusive property of the United States. The resolution contained, however, no positive restriction, which would require the assent of any existing State to the separation of a part of its territory; but as the States to be admitted were to be those "lawfully arising," it is apparent that the original intention was that no present State should be dismembered without its consent. But in order to make this the more certain, the committee of detail, in the article in which they carried out the resolution, gave effect to its provisions in these words:--"New States lawfully constituted or established within the limits of the United States may be admitted, by the legislature, into this government; but to such admission the consent of two thirds of the members present in each house shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the legislature may make conditions with the new States concerning the public debt which shall be then subsisting."[283] In the first draft of the Constitution, therefore, there was contained a qualified power to admit new States, whether arising within the limits of any of the old States, or within the territory of the United States. But in this proposition there was a great omission; for although the States to be admitted were to be those lawfully arising, and such a State might be formed out of the territory of an existing State by the legislative power of the latter, yet it was not ascertained how a State was "lawfully to arise" in the territory of the United States. Nor was there, at present, any provision introduced into the Constitution by which Congress could dispose of the soil of the national domain. These as well as other omissions at once attracted the attention of Mr. Madison, who, as we have seen, held the opinion that the entire legislation of the old Congress in reference to the Northwestern Territory was without constitutional authority. Before the article which embraced the admission of new States was reached, he moved the following among other powers:[284] "to dispose of the unappropriated lands of the United States"; and "to institute temporary governments for new States arising therein." These propositions were referred to the committee of detail, but before any action upon them, the article previously reported by that committee was reached and taken up, and there ensued upon it a course of proceeding which resulted in the provisions that now stand in the third section of the fourth article of the Constitution.[285] The first alteration made in the article reported by the committee was to strike out the clause which declared that the new States should be admitted on an equal footing with the old ones. The reason assigned for this change was, that the legislature ought not to be tied down to such an admission, as it might throw the balance of power into the Western States.[286] The next modification was to strike out the clause which required a vote of two thirds of the members present for the admission of a State.[287] This left the proposed article a mere grant of power to admit new States, requiring the consent of the legislature of any State that might be dismembered, as well as the consent of Congress. An earnest effort was then made, by some of the members from the smaller States, to remove this restriction, upon the ground that the United States, by the treaty of peace with England, had become the proprietor of the crown lands which were situated within the limits claimed by some of the States that would be likely to be divided; and it was urged, that to require the consent of Virginia, North Carolina, and Georgia to the separation of their Western settlements, might give those States an improper control over the title of the United States to the vacant lands lying within the jurisdiction claimed by those States, and would enable them to retain the jurisdiction unjustly, against the wish of the settlers. But a large majority of the States refused to concede a power to dismember a State, without its consent, by taking away even its claims to jurisdiction. It was considered by them, that as to municipal jurisdiction over settlements already made within limits claimed by Virginia, North Carolina, and Georgia, the Constitution ought not to interfere, without the joint consent of the settlers and the State exercising such jurisdiction; that if the title to lands unoccupied at the treaty of peace, lying within the originally chartered limits of any of the States, was in dispute between them and the United States, that controversy would be within the reach of the judicial power, as one between a State and the United States, or it might be terminated by a voluntary cession of the State claim to the Union.[288] The next step taken in the settlement of this subject was to provide for the case of Vermont, which was then in the exercise of an independent sovereignty, although it was within the asserted limits of New York. It was thought proper, in this particular case, not to make the State of Vermont, already formed, dependent for her admission into the Union on the consent of New York. For this reason, the words "hereafter formed" were inserted in the article under consideration, and the word "jurisdiction" was substituted for "limits."[289] Thus modified, the article stood as follows:-- "New States may be admitted by the legislature into the Union; but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the consent of the legislature of such State, as well as of the general legislature." This provision was quite unsatisfactory to the minority. They wished to have the Constitution assert a distinct power in Congress to erect new States within, as well as without, the territory claimed by any of the States, and to admit such new States into the Union; and they also wished for a saving clause to protect the title of the United States to vacant lands ceded by the treaty of peace. Luther Martin accordingly moved a substitute article, embracing these two objects, but it was rejected.[290] A clause was then added to the article pending, which declared that no State should be formed by the junction of two or more States, or parts of States, without the consent of the States concerned, as well as the consent of Congress. This completed the substance of what is now the first clause of the third section of the fourth article of the Constitution.[291] Mr. Carroll thereupon renewed the effort to introduce a clause saving the rights of the United States to vacant lands; and after some modification, he finally submitted it in these words: "Nothing in this Constitution shall be construed to alter the claims of the United States, or of the individual States, to the Western territory; but all such claims shall be examined into, and decided upon, by the Supreme Court of the United States." Before any vote was taken upon this proposition, however, Gouverneur Morris moved to postpone it, and brought forward as a substitute the very provision which now forms the second clause of the third section of article fourth, which he presented as follows: "The legislature shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and nothing in this Constitution contained shall be so construed as to prejudice any claims, either of the United States or of any particular State." This provision was adopted, without any other dissenting vote than that of the State of Maryland.[292] The purpose of this provision, as it existed at the time in the minds of the framers of the Constitution, must be gathered from the whole course of their proceedings with respect to it, and from the surrounding facts, which exhibit what was then, and what was afterwards likely to become, the situation of the United States in reference to the acquisition of territory and the admission of new States. There were, then, at the time when this provision was made, four classes of cases in the contemplation of the Convention. The first consisted of the Northwestern Territory, in which the title to the soil and the political jurisdiction were already vested in the United States. The second embraced the case of Vermont, which was then exercising an independent jurisdiction adversely to the State of New York, and the case of Kentucky, then a district under the jurisdiction of Virginia; in both of which the United States neither claimed nor sought to acquire either the title to the vacant lands or the rights of political sovereignty, but which would both require to be received as new and separate States, the former without the consent of New York, the latter with the consent of Virginia. The third class comprehended the cessions which the United States in Congress were then endeavoring to obtain from the States of North Carolina, South Carolina, and Georgia, and in which were afterwards established the States of Tennessee, Mississippi, and Alabama.[293] These cessions, as it then appeared, might or might not all be made. If made, the title of the United States to the unoccupied lands would be complete, resting both upon the cessions and upon the treaty of peace with England; and the political jurisdiction over the existing settlements, as well as over the whole territory, would be transferred with the cessions, subject to any conditions which the ceding States might annex to their grants. If the cessions should not be made, the claims of the United States to the unoccupied lands would stand upon the treaty of peace, and would require to be saved by some clause in the Constitution which should signify that they were not surrendered; while the claims of the respective States would require to be protected in like manner. The reader will now be prepared to understand the following explanation of the third section of the fourth article of the Constitution. First, with reference to the Northwestern Territory, the soil and jurisdiction of which was already completely vested in the United States, it was necessary that the Constitution should confer upon Congress power to exercise the political jurisdiction of the United States, power to dispose of the soil, and power to admit new States that might be formed there into the Union. Secondly, with reference to such cases as that of Vermont, it was necessary that there should be a power to admit new States into the Union without requiring the assent of any other State, when such new States were not formed within the actual jurisdiction of any other State. Thirdly, with reference to such cases as that of Kentucky, which would be formed within the actual jurisdiction of another State, it was necessary that the power to admit should be qualified by the condition of the consent of that State. Fourthly, with reference to such cessions as were expected to be made by North Carolina, South Carolina, and Georgia, it was necessary to provide the power of political government, the power to admit into the Union, and the power to dispose of the soil, if the cessions should be made; and at the same time to save the claims of the United States and of the respective States as they then stood, if the cessions anticipated should not be made. None of these cases, however, were specifically mentioned in the Constitution, but general provisions were made, which were adapted to meet the several aspects of these cases. From the generality of these provisions, it is held by some that the clause which relates to "the territory or other property of the United States," was intended to be applied to all cessions of territory that might ever be made to the United States, as well as to those which had been made, or which were then specially anticipated; while others give to the clause a much narrower application.[294] There now remain to be considered the restraints imposed upon the exercise of the powers of Congress, both within the States and in all other places; both where the authority of the United States is limited to certain special objects, and where it is unlimited and universal, excepting so far as it is narrowed by these constitutional restraints. Some of them I have already described, in tracing the manner in which they were introduced into the Constitution. We have seen how far the commercial and revenue powers became limited in respect to the slave-trade, to taxes on exports, to preferences between the ports of different States, and to the levying of capitation or other direct taxes. These restrictions were applicable to these special powers. But others were introduced, which apply to the exercise of all the powers of Congress, and are in the nature of limitations upon its general authority as a government. One of these is embraced in the provision, "that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."[295] The common law of England, which recognizes the right to the writ of habeas corpus for the purpose of delivery from illegal imprisonment or restraint, was the law of each of the American States; and it appears from the proceedings of the Convention to have been the purpose of this provision to recognize this right, in the relations of the people of the States to the general government, and to secure and regulate it. The choice lay between a declaration of the existence of the right, making it inviolable and absolute, under all circumstances, and a recognition of its existence by a provision which would admit of its being suspended in certain emergencies. The latter course was adopted, although three of the States recorded their votes against the exception of cases of rebellion or invasion.[296] The prohibition upon Congress to pass bills of attainder, or _ex post facto_ laws, came into the Constitution at a late period, and while the first draft of it was under consideration. Bills of attainder, in the jurisprudence of the common law, are acts of legislation inflicting punishment without a judicial trial. The proposal to prohibit them was received in the Convention with unanimous assent. With regard to the other class of legislative acts, described as "_ex post facto_ laws," there was some difference of opinion, in consequence probably of different views of the extent of the term. In the common law, this expression included only, then and since, laws which punish as crimes acts which were not punishable as crimes when they were committed. Laws of a civil nature, retrospective in their operation upon the civil rights and relations of parties, were not embraced by this term, according to the definition of English jurists. But it is manifest from what was said by different members, that, at the time when the vote was taken which introduced this clause into the Constitution, the expression "_ex post facto_ laws" was taken in its widest sense, embracing all laws retrospective in their operation. It was objected, therefore, that the prohibition was unnecessary, since, upon the first principles of legislation, such laws are void of themselves, without any constitutional declaration that they are so. But experience had proved that, whatever might be the principles of civilians respecting such laws, the State legislatures had passed them, and they had been acted on. A large majority of the Convention determined, therefore, to place this restraint upon the national legislature, and at the time of the vote I think it evident that all retrospective laws, civil as well as criminal, were understood to be included.[297] But when the same restraint came afterwards to be imposed upon the State legislatures, the attention of the assembly was drawn to the distinction between criminal laws and laws relating to civil interests. In order to reach and control retrospective laws operating upon the civil rights of parties, when passed by a State, a special description was employed to designate them, as "laws impairing the obligation of contracts," and the term "_ex post facto_ laws" was thus confined to laws creating and punishing criminal offences after the acts had been committed.[298] What is now the settled construction of this term, therefore, is in accordance with the sense in which it was finally intended to be used by the framers of the Constitution before the instrument passed from their hands. The committee of detail had reported in their draft of the Constitution a clause which restrained the United States from granting any title of nobility. The Convention, for the purpose of preserving all officers of the United States independent of external influence, added to this a provision that no person holding an office of profit or trust under the United States shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.[299] In addition to the special powers conferred by the Constitution upon the national government, it has imposed certain restraints on the political power of the States, which qualify and diminish what would otherwise be the unlimited sovereignty of each of them. These restraints are of two classes;--a part of them being designed to remove all obstructions that might be placed by State legislation or action in the way of the appropriate exercise of the powers vested in the United States, and a part of them being intended to assimilate the nature of the State governments to that of the Union, by the application of certain maxims or rules of public policy. These restraints may now be briefly examined, with reference to this classification. The idea of imposing special restrictions upon the power of the separate States was not expressly embraced in the plan of government described by the resolutions on which the committee of detail were instructed to prepare the instrument of government. Such restrictions, however, were not unknown to the previous theory of the Union. They existed in the Articles of Confederation, where they had been introduced with the same general purpose of withdrawing from the action of the States those objects, which, by the stipulations of that instrument, had been committed to the authority of the United States in Congress. But the inefficacy of those provisions lay in the fact, that they were the mere provisions of a theory. The step now proposed to be taken was to superadd to the prohibitions themselves the principle of their supremacy as matters of fundamental law, and to enable the national judiciary to make that supremacy effectual. Almost all the restraints imposed by the Articles of Confederation upon the States could be removed or relaxed by the consent of the Congress to the doing of what was otherwise prohibited. In the first draught of the Constitution, the committee of detail inserted four absolute prohibitions, which could not be removed by Congress itself. These related to the coining of money, the granting of letters of marque and reprisal, the making of treaties, alliances, and confederations, and the granting of titles of nobility. All the other restraints on the States were to be operative or inoperative, according to the pleasure of Congress.[300] Among these were included bills of credit; laws making other things than specie a tender in payment of debts; the laying of imposts or duties on imports; the keeping of troops or ships of war in time of peace; the entering into agreements or compacts with other States, or with foreign powers; and the engaging in war, when not invaded, or in danger of invasion before Congress could be consulted. The enactment of attainder and _ex post facto_ laws, and of laws impairing the obligation of contracts, was not prohibited at all. But when these various subjects came to be regarded more closely, it was perceived that the list of absolute prohibitions must be considerably enlarged. Thus the power of emitting bills of credit, which had been the fruitful source of great evils, must either be taken away entirely, or the contest between the friends and the opponents of paper money would be transferred from the State legislatures to Congress, if Congress should be authorized to sanction the exercise of the power. Fears were entertained that an absolute prohibition of paper money would excite the strenuous opposition of its partisans against the Constitution; but it was thought best to take this opportunity to crush it entirely; and accordingly the votes of all the States but two were given to a proposition to prohibit absolutely the issuing of bills of credit.[301] To the same class of legislation belonged the whole of that system of laws by which the States had made a tender of certain other things than coin legal satisfaction of a debt. By placing this class of laws under the ban of a strict prohibition, not to be removed by the consent of Congress in any case, the mischiefs of which they had been a fruitful source would be at once extinguished. This was accordingly done, by unanimous consent.[302] At this point, the kindred topic of the obligation of contracts presented itself to the mind of Rufus King, suggested doubtless by a provision in the Ordinance then recently passed by Congress for the government of the Northwestern Territory.[303] The idea of a special restraint on legislative power, for the purpose of rendering inviolate the obligation of contracts, appears to have originated with Nathan Dane, the author of that Ordinance. It was not embraced in the resolve of 1784, reported by Mr. Jefferson, which contained the first scheme adopted by Congress for the establishment of new States in the Northwestern Territory; and it first appears in our national legislation in the Ordinance of 1787. Its transfer thence into the Constitution of the United States was a measure of obvious expediency, and indeed of clear necessity. In the Ordinance, Congress had provided a system of fundamental law, intended to be of perpetual obligation, for new communities, whose legislative power was to be moulded by certain original maxims of assumed justice and right. The opportunity thus afforded for shaping the limits of political sovereignty according to the requirements of a preconceived policy, enabled the framers of the Ordinance to introduce a limitation, which is not only peculiar to American constitutional law, but which, like many features of our institutions, grew out of previous abuses. In the old States of the Confederacy, from the time when they became self-governing communities, the power of a mere majority had been repeatedly exercised in legislation, without any regard to its effect on the civil rights and remedies of parties to existing contracts. The law of debtor and creditor was not only subjected to constant changes, but the nature of the change depended in many of the States upon the will of the debtor class, who formed the governing majority. So pressing were the evils thus engendered, that, when the framers of the Ordinance came to provide for the political existence of communities whose institutions they were to dictate, they determined to impose an effectual restraint on legislative power; and they accordingly provided, in terms much more stringent than were afterwards employed in the Constitution, that no law should have effect in the Territory which should in any manner whatever interfere with or affect private contracts or engagements previously made.[304] The framers of the Constitution were not engaged in the same work of creating new political societies, but they were to provide for such surrenders by existing States of their present unquestioned legislative authority, as the dictates of sound policy and the evils of past experience seemed to require. When this subject was first brought forward in the Convention, the restriction was made to embrace all retrospective laws bearing upon contracts, which were supposed to be included in the term "_ex post facto_ laws." It being ascertained, however, that the latter phrase would not, in its usual acceptation, extend to civil cases, it became necessary to consider how such cases were to be provided for, and how far the prohibition should extend. The provision of the Ordinance was regarded as too sweeping; no legislature, it was said, ever did or can altogether avoid some retrospective action upon the civil relations of parties to existing contracts, and to require it would be extremely inconvenient. At length, a description was found, which embodied the extent to which the prohibition could with propriety be carried. The legislatures of the States were restrained from passing any "law impairing the obligation of contracts";--a provision that has been found amply sufficient, and attended with the most salutary consequences, under the interpretation that has been given to it.[305] Bills of attainder and _ex post facto_ laws, which had not been included in the prohibitions on the States by the committee of detail, were added by the Convention to the list of positive restrictions, which was thus completed. In the class of conditional prohibitions, or those acts which might be done by the States with the consent of Congress, the committee of detail had placed the laying of "imposts or duties on imports." To this the Convention added "exports," in order to make the restriction applicable both to commodities carried out of and those brought into a State. But this provision, as thus arranged, would obviously make the commercial system extremely complex and inconvenient. On the one hand, the power to lay duties on imports had been conferred upon the general government, for the purposes of revenue, and to leave the States at liberty, with the consent of Congress, to lay additional duties, would subject the same merchandise to separate taxation by two distinct governments. On the other hand, if the States should be deprived of all power to lay duties on exports, they would have no means of defraying the charges of inspecting their own productions. At the same time, it was apparent that, under the guise of inspection laws, if such laws were not to be subject to the revision of Congress, a State situated on the Atlantic, with convenient seaports, could lay heavy burdens upon the productions of other States that might be obliged to pass through those ports to foreign markets. Again, if the States should be deprived of all power to lay duties on imports, they could not encourage their own manufactures; and if allowed to encourage their own manufactures by such State legislation, it must operate not only upon imports from foreign countries, but upon imports from other States of the Union, which would revive all the evils that had flowed from the want of general commercial regulations. To prevent these various mischiefs, the Convention adopted three distinct safeguards. They provided, first, by an exception, that the States might, without the consent of Congress, lay such duties and imposts as "may be absolutely necessary for executing their inspection laws"; second, that the net produce of all duties and imposts laid by any State, whether with or without the consent of Congress, shall be for the use of the Treasury of the United States; third, that all such State laws, whether passed with or without the previous consent of Congress, shall be subject to the revision and control of Congress.[306] There is, therefore, a twofold remedy against any oppressive exercise of the State power to lay duties for purposes of inspection. The question whether the particular duties exceed what is absolutely necessary for the execution of an inspection law, may be made a judicial question; and in addition to this, the law imposing the inspection duty is at all times subject to the revision and control of Congress. Any tendency to lay duties or imposts for purposes of revenue or protection, is checked by the requirement that the net produce of all duties or imposts laid by any State on imports or exports shall be paid over to the United States, and such tendency may moreover be suppressed by Congress at any time, by the exercise of its power of revision and control. In order to vest the supervision and control of the whole subject of navigation in Congress, it was further provided that no State, without the consent of Congress, shall lay any duty of tonnage. An exception, proposed by some of the Maryland and Virginia members, with a view to the situation of the Chesapeake Bay, illustrates the object of this provision. They desired that the States might not be restrained from laying duties of tonnage "for the purpose of clearing harbors and erecting light-houses." It was perhaps capable of being contended, that, as the regulation of commerce was already agreed to be vested in the general government, the States were restrained by that general provision from laying tonnage duties. The object of the special restriction was, to make this point entirely certain; and the object of the proposed exception was to divide the commercial power, and to give the States a concurrent authority to regulate tonnage for a particular purpose. But a majority of the States considered the regulation of tonnage an essential part of the regulation of trade. They adopted the suggestion of Mr. Madison, that the regulation of commerce was, in its nature, indivisible, and ought to be wholly under one authority. The exception was accordingly rejected.[307] The same restriction, with the like qualification of the consent of Congress, was applied to the keeping of troops or ships of war in time of peace, entering into agreements or compacts with another State or a foreign power, or engaging in war, unless actually invaded or in such imminent danger as will not admit of delay.[308] FOOTNOTES: [232] Art. VII. § 1 of the first draft of the Constitution. Elliot, V. 378. [233] August 18. Elliot, V. 440. [234] A committee of one member from each State. [235] Elliot, V. 441. To the same grand committee was afterwards referred the subject of the militia. See _infra_. [236] August 21. Elliot, V. 451. [237] August 22. Ibid. 462. [238] See the proceedings which took place, August 22, 24, and 25. Elliot, V. 462, 463, 464, 471, 475-477. [239] Elliot, V. 476, 477. Mr. Madison says, "This proposition, as being unnecessary, was disagreed to"; that is, unnecessary as a security of the _old debts_ of the United States. [240] Ibid. 506, 507. [241] Elliot, V. 478, 479. [242] Constitution, Art. I. §9. See the proceedings which took place on the proposition of the Maryland delegates. Elliot, V. 478, 479, 483, 502, 545. [243] Elliot, V. 543. Constitution, Art. I. § 8, clause 1. [244] Elliot, V. 439. [245] Ibid. 506, 507. [246] Ibid. 434. Journal, Elliot, I. 245. [247] See the debate, and Mr. Madison's explanation of his vote, Elliot, V. 434, 435, and the note on the latter page. [248] Constitution, Art. I. § 8, clause 9. [249] Ibid., clause 11. [250] Elliot, V. 436. [251] That is to say, it is the same crime, committed on the high seas, that is denominated robbery when committed on the land. [252] Madison, Elliot, V. 436, 437. [253] In the clause as it passed the Convention, the offence of _counterfeiting_ was placed with the other crimes which Congress was to "define" and "punish"; but, on the revision of the Constitution, counterfeiting was placed in a separate clause, under the term "to provide for the punishment of," &c. See Art. I. § 8, clauses 6, 10. [254] Elliot, V. 438, 439. [255] Elliot, V. 440, 510, 511. [256] Ibid. 442. [257] Ibid. 443. [258] Ibid. 440. [259] Elliot, V. 510, 511. Constitution, Art. 1. § 8, clause 12. [260] Elliot, V. 443. [261] Art. VII. § 1 of the first draft. Elliot, V. 379. [262] Ibid. 440. [263] Aug 18. Elliot, V. 445. [264] Constitution, Art. I § 8, cl. 16. [265] Art. I. § 8, cl. 15. Ibid. p. 467. [266] Constitution, Art. I. § 8, cl. 18. [267] Elliot, V. 447. [268] See the statutes of Massachusetts and Connecticut, &c. cited in Curtis on Copyright, pp. 77, 78, 79. [269] _Ante_, Chap. IX. [270] Elliot, V. 510, 511, 512. [271] _Ante_, Vol. I. Book III. ch. 5, p. 291 _et seq._ [272] Resolve of October 10, 1780. Journals, VI. 325. [273] Resolve of April 23, 1784. Journals, IX. 153. [274] March 16, 1785. Journals, X. 79. See _ante_, Vol. I. p. 299. [275] See the note on the authorship of the Ordinance of 1787, in the Appendix to this volume. [276] _Ante_, Chap. IV. p. 77, note. [277] See the proceedings concerning Kentucky, in 1788. Journals, XIII. 16, 32, 51, 52, 55. [278] The Federalist, No. 38. [279] The passage quoted from Mr. Jefferson, _ante_, p. 77, also shows that strong doubts were felt in Congress, in 1784, respecting their power to admit new States formed out of unoccupied territory. Indeed, the whole of the proceedings upon Mr. Jefferson's measure of April 23, 1784, show that the powers of Congress over the territory that had been acquired under the cession of Virginia were very variously regarded by the different delegates. See Journals, IX. 138-156. The State of South Carolina voted against the resolve on its final passage, and after it had been modified to meet some of the objections raised. [280] I think we are to understand Mr. Madison's assertion in the Federalist,--that what had been done by Congress in relation to the Northwestern Territory was without constitutional authority,--to mean, that it had been done without the authority of any proper constitutional provision. Mr. Madison himself, being a member of Congress in 1783, voted for the acceptance of a report, by the adoption of which Congress settled the conditions on which the cession of Virginia was to be received by the United States. These conditions embraced the whole of the three fundamental points, that the territory should be held and disposed of for the common benefit of the United States, that it should be divided into States, and that those States should be admitted into the Union. So that Mr. Madison was a party to the arrangement by which Congress undertook to hold out these promises to the States. (Journals of Congress for September 13, 1783, VIII. 355-359.) But he was not a member of Congress in 1784, when Mr. Jefferson's measure was adopted; and although he was a member in 1787, when the Ordinance was adopted, he was at that time in attendance upon the national Convention, and consequently never voted upon the Ordinance. His participation in the proceedings of the Convention, by which the necessary power was created, shows his sense of its necessity. [281] See especially the cession by Virginia, of March 1, 1784. Journals of Congress, IX. 67. Cession by Massachusetts, April 19, 1785. Journals, X. 128. Cession by Connecticut, September 13, 1786. Journals, XI. 221. Also the resolve of Congress passed, in anticipation of these cessions, October 10, 1780. Journals, VI. 325. [282] Resolution 10. Madison, Elliot, V. 128. [283] Art. XVII. of the draft prepared by the committee of detail. Elliot, V. 381. [284] August 18. Elliot, Vol. V. p. 439. [285] August 29. Elliot, V. 492-497. [286] Ibid. 492, 493. [287] Ibid. 493. [288] See the vote on a proposition moved by Mr. Carroll for a recommitment for the purpose of asserting in the Constitution the right of the United States to the lands ceded by Great Britain in the treaty of peace. New Jersey, Delaware, and Maryland alone voted for the recommitment. Elliot, V. 493, 494. [289] Elliot, V. 495. [290] Ibid. 496. New Jersey, Delaware, and Maryland, _ay_. [291] When the Constitution was finally revised, the word "hereafter" was left out of the first clause of the third section of article fourth, apparently because the phraseology of the clause was sufficient, without it, to save the case of Vermont, which was regarded as not being within the "_jurisdiction_," although it was within the asserted _limits_, of the State of New York. [292] Elliot, V. 496, 497. [293] The cession by South Carolina of all its "right, title, interest, jurisdiction, and claim" to the "territory or tract of country" lying, within certain northern and southern limits, between the western boundary of that State and the river Mississippi, was in fact made and accepted in Congress, August 9-10, 1787, twenty days before the territorial clause was finally settled in the Convention, which took place August 30. (Journals of the Old Congress, XII. 129-139. Madison, Elliot, V. 494-497.) On the 20th of October of the same year, the Congress passed a resolution urging the States of North Carolina and Georgia to cede their Western claims. This request was not complied with until after the Constitution had gone into operation. The cession of North Carolina was made February 25, 1790; that of Georgia, April 24, 1802. [294] It is not my purpose to enter into the argument on this question. I have recently had occasion professionally to maintain that the territorial clause is applicable to all territorial cessions made to the United States, whether by States of the Union or by foreign States, and that it clothes the government with a full legislative power over such territories and their inhabitants, which is subject only to the particular restrictions enumerated in the Constitution. Perhaps it is needless for me to add that I entertain this opinion. But it is rejected by others, and, in the present state of judicial interpretation of this part of the Constitution, by the supreme tribunal, it is not easy to determine what will finally become the settled construction. [295] Constitution, Art. I. § 9, cl. 2. [296] See Elliot, V. 484. The three States were North Carolina, South Carolina, and Georgia. [297] Elliot, V. 462, 463. [298] Elliot, V. 488. [299] Ibid. 467. Constitution, Art. I. § 9, cl. 8. [300] Articles XII., XIII. of the first draft, Elliot, V. 381. [301] Elliot, V. 484, 485. [302] Elliot, V. 484, 485. [303] The Ordinance, which was passed July 13, was published at length in "The Pennsylvania Herald," a newspaper printed at Philadelphia, on the 25th of July (1787). Mr. King's motion was made August 28, and is described by Mr. Madison as a motion "to add, in the words used in the Ordinance of Congress establishing new States, a prohibition on the States to interfere in private contracts." Elliot, V. 485. [304] See the clause of the Ordinance, cited _ante_, Vol. I. p. 452, note 2. [305] Elliot, V. 485, 488, 545, 546. [306] Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548. [307] By a vote of six States against four. Elliot, V. 548. [308] Elliot, V. 548. CHAPTER XII. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--SUPREMACY OF THE NATIONAL GOVERNMENT.--DEFINITION AND PUNISHMENT OF TREASON. Among the resolutions sent to the committee, there were four which had reference to the supremacy of the government of the United States. They declared that it ought to consist of a supreme legislative, executive, and judiciary;--that its laws and treaties should be the supreme law of the several States, so far as they related to the States or their citizens and inhabitants, and that the judiciaries of the States should be bound by them, even against their own laws;--that the officers of the States, as well as of the United States, should be bound by oath to support the Articles of Union;--and that the question of their adoption should be submitted to assemblies of representatives to be expressly chosen by the people of each State under the recommendation of its legislature.[309] In order to give effect to these precise and stringent directions, the committee of detail introduced into their draft of a constitution a preamble; two articles asserting and providing for the supremacy of the national government; a provision for the oath of officers; and a declaration of the mode in which the instrument was intended to be ratified. The preamble of the Constitution, as originally reported by this committee, differed materially from that subsequently framed and adopted. It spoke in the name of the people of the States of New Hampshire, Massachusetts, &c., who were said "to ordain, declare, and establish this Constitution for the government of ourselves and our posterity"; and it stated no special motives for its establishment. In this form it was unanimously adopted on the 7th of August. But when, at a subsequent period, the instrument was sent to another committee, whose duty it was to revise its style and arrangement, this phraseology was changed, and the preamble was made to speak in the name of the people of the United States, and to declare the purposes for which _they_ ordained and established the Constitution.[310] The language thus employed in the preamble has justly been considered as having an important connection with the provisions made for the ratification of the instrument to which it was prefixed. The articles specially designed to assert and carry out the supremacy of the national government, as they came from the committee, embodied the resolutions on the same subject which had passed the Convention. The only material addition consisted in the qualification, that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Constitution. Subsequently, the article was so amended as to make the Constitution, the laws passed in pursuance of it, and the treaties of the United States, the supreme law of the land, binding upon all judicial officers.[311] It is a remarkable circumstance, that this provision was originally proposed by a very earnest advocate of the rights of the States,--Luther Martin. His design, however, was to supply a substitute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the national legislature upon all laws of the States contravening in their opinion the Articles of Union, or the treaties subsisting under the authority of the Union.[312] The purpose of the substitute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a State law, supposed to be in conflict with the Constitution, laws, or treaties of the Union, should be inoperative or valid. By extending the obligation to regard the requirements of the national Constitution and laws to the judges of the State tribunals, their supremacy in all the judicatures of the country was secured. This obligation was enforced by the oath or affirmation to support the Constitution of the United States;[313] and, as we shall see hereafter, lest this security should fail, the final determination of questions of this kind was drawn to the national judiciary, even when they might have originated in a State tribunal.[314] Closely connected in purpose with these careful provisions was the mode in which the Constitution was to be ratified. The committee of detail had made this the subject of certain articles in the Constitution itself.[315] But the committee of revision afterwards presented certain resolutions in the place of two of those articles, which were adopted by the Convention after the Constitution had been signed; leaving in the instrument itself nothing but the article which determined the number of States whose adoption should be sufficient for establishing it.[316] These resolutions pursued substantially the mode previously agreed upon, of a transmission of the instrument to Congress, a recommendation by the State legislatures to the people to institute representative assemblies to consider and decide on its adoption, and a notice of their action to Congress by each State assembly so adopting it. The purpose of this form of proceeding, so far as it was connected with the primary authority by which the Constitution was to be enacted, has been already explained.[317] What then were the meaning and scope of that supremacy which the framers of the Constitution designed to give to the acts of the government which they constructed? In seeking an answer to this question, it is necessary to recur, as we have constantly been obliged to do, to the nature of the government which the Constitution was made to supersede. In that system, the experiment had been tried of a union of States,--each possessed of a complete government of its own,--which was intended to combine their several energies for the common defence and the promotion of the general welfare. But this combined will of distinct communities, expressed through the action of a common agent, was wholly unable to overcome the adverse will of any of them expressed by another and separate agent, although the objects of the powers bestowed on the confederacy were carefully stated and sufficiently defined in a public compact. Thus, for example, the treaty-making power was expressly vested in the United States in Congress assembled; but when a treaty had been made, it depended entirely upon the separate pleasure of each State whether it should be executed. If the State governments did not see fit to enforce its provisions upon their own citizens, or thought proper to act against them, there was no remedy, both because the Congress could not legislate to control individuals, and because there was no department clothed with authority to compel individuals to conform their conduct to the requirements of the treaty, and to disregard the opposing will of the State. This defect was now to be supplied, by giving to the national authority, not only theoretically but practically, a supremacy over the authority of each State. But this was not to be done by annihilating the State governments. The government of every State was to be preserved; and so far as its original powers were not to be transferred to the general government, its authority over its own citizens and within its own territory must, from the nature of political sovereignty, be supreme. There were, therefore, to be two supreme powers in the same country, operating upon the same individuals, and both possessed of the general attributes of sovereignty. In what way, and in what sense, could one of them be made paramount over the other? It is manifest that there cannot be two supreme powers in the same community, if both are to operate upon the same objects. But there is nothing in the nature of political sovereignty to prevent its powers from being distributed among different agents for different purposes. This is constantly seen under the same government, when its legislative, executive, and judicial powers are exercised through different officers; and in truth, when we come to the law-giving power alone, as soon as we separate its objects into different classes, it is obvious that there may be several enacting authorities, and yet each may be supreme over the particular subject committed to it by the fundamental arrangements of society. Supreme laws, emanating from separate authorities, may and do act on different objects without clashing, or they may act on different parts of the same object with perfect harmony. They are inconsistent when they are aimed at each other, or at the same indivisible object.[318] When this takes place, one or the other must yield; or, in other terms, one of them ceases to be supreme on the particular occasion. It was the purpose of the framers of the Constitution of the United States to provide a paramount rule, that would determine the occasions on which the authority of a State should cease to be supreme, leaving that of the United States unobstructed. Certain conditions were made necessary to the operation of this rule. The State law must conflict with some provision of the Constitution of the United States, or with a law of the United States enacted in pursuance of the constitutional authority of Congress, or with a treaty duly made by the authority of the Union. The operation of this rule constitutes the supremacy of the national government. It was supposed that, by a careful enumeration of the objects to which the national authority was to extend, there would be no uncertainty as to the occasions on which the rule was to apply; and as all other objects were to remain exclusively subject to the authority of the States within their respective territorial limits, the operation of the rule was carefully limited to those occasions. The highly complex character of a system in which the duties and rights of the citizen are thus governed by distinct sovereignties, would seem to render the administration of the central power--surrounded as it is by jealous and vigilant local governments--an exceedingly difficult and delicate task. Its situation is without an exact parallel in any other country in the world. But it possesses the means which no government of a purely federal character has ever enjoyed, of an exact determination by itself of its own powers; because every conflict between its authority and the authority of a State may be made a judicial question, and as such is to be solved by the judicial department of the nation. This peculiar device has enabled the government of the United States to act successfully and safely. Without it, each State must have been left to determine for itself the boundaries between its own powers and those of the Union; and thus there might have been as many different determinations on the same question as the number of the States. At the same time, this very diversity of interpretation would have deprived the general government of all power to enforce, or even to have, an interpretation of its own. Such a confused and chaotic condition had marked the entire history of the Confederation. It was terminated with the existence of that political system, by the establishment of the rule which provides for the supremacy of the Constitution of the United States, and by making one final arbiter of all questions arising under it. By means of this skilful arrangement, a government, in which the singular condition is found of separate duties prescribed to the citizen by two distinct sovereignties, has operated with success. That success is to be measured not wholly, or chiefly, by the diversities of opinion on constitutional questions that may from time to time prevail; nor by the means, aside from the Constitution, that may sometimes have been thought of for counteracting its declared interpretation; but by the practical efficiency with which the powers of the Union have operated, and the general readiness to acquiesce in the limitations given to those powers by the department in which their construction is vested. This general acquiescence has steadily increased, from the period when the government was founded until the present day; and it has now come to be well understood, that there is no alternative to take the place of a ready submission to the national will, as expressed by or under the Constitution interpreted by the proper national organ, excepting a resort to methods that lie wholly without the Constitution, and that would completely subvert the principles on which it was founded. For while it is true that the people of each State constitute the sovereign power by which the rights and duties of its inhabitants not involved in the Constitution of the United States are to be exclusively governed, it is equally true that they do not constitute the whole of the sovereign power which governs those relations of its inhabitants that are committed to the national legislature. The framers of the Constitution resorted to an enactment of that instrument by the people of the United States, and employed language which speaks in their name, for the express purpose, among other things, of bringing into action a national authority, on certain subjects. The organs of the general government, therefore, are not the agents of the separate will of the people of each State, for certain specified purposes, as its State government is the agent of their separate will for all other purposes; but they are the agents of the will of a collective people, of which the inhabitants of a State are only a part. That the will of the whole should not be defeated by the will of a part, was the purpose of the supremacy assigned to the Constitution of the United States; and that the rights and liberties of each part, not subject to the will of the whole, should not be invaded, was the purpose of the careful enumeration of the objects to which that supremacy was to extend. In this supremacy of the national government within its proper sphere, and in the means which were devised for giving it practical efficiency, we are to look for the chief cause that has given to our system a capacity of great territorial extension. It is a system in which a few relations of the inhabitants of distinct States are confided to the care of a central authority; while, for the purpose of securing the uniform operation of certain principles of justice and equality throughout the land, particular restraints are imposed on the power of the States. With these exceptions, the several States remain free to pursue such systems of legislation as in their own judgment will best promote the interest and welfare of their inhabitants. Such a division of the political powers of society admits of the union of far greater numbers of people and communities, than could be provided for by a single representative government, or by any other system than a vigorous despotism. Many of the wisest of the statesmen of that period, as we now know, entertained serious doubts whether the country embraced by the thirteen original States would not be too large for the successful operation of a republican government, having even so few objects committed to it as were proposed to be given to the Constitution of the United States. If those objects had been made to embrace all the relations of social life, it is extremely probable that the original limits of the Union would have far exceeded the capacities of a republican and representative government, even if the first difficulties arising from the differences of manners, institutions, and local laws could have been overcome. But these very differences may be, and in fact have been, made a means of vast territorial expansion, by the aid of a principle which has been placed at the foundation of the American Union. Let a number of communities be united under a system which embraces the national relations of their inhabitants, and commits a limited number of the objects of legislation to the central organs of a national will, leaving their local and domestic concerns to separate and local authority, and the growth of such a nation may be limited only by its position on the surface of the earth. The ordinary obstacles arising from distance, and the physical features of the country, may be at once overcome for a large part of the purposes of government, by this division of its authority. The wants and interests of civilized life, modified into almost endless varieties, by climate, by geographical position, by national descent, by occupation, by hereditary customs, and by the accidental relations of different races, may in such a state of things be governed by legislation capable of exact adaptation to the facts with which it has to deal. In this way, separate States under the republican form may be multiplied indefinitely. Now what is required in order to make such a multiplication of distinct States at the same time a national growth, is the operation of some principle that will preserve their national relations to the control of a central authority. This is effected by the supremacy of the Constitution of the United States, against which no separate State power can be exerted. This supremacy secures the republican form of government, the same general principles and maxims of justice, and the same limitations between State and national authority, throughout all the particular communities; while, at the same time, it regulates by the same system of legislation, applied throughout the whole, the rights and duties of individuals that are committed to the national authority. It was for the want of this supremacy and of the means of enforcing it, that the Confederation, and all the other federal systems of free government known in history, had failed to create a powerful and effective nationality; and it is precisely this, which has enabled the Constitution of the United States to do for the nation what all other systems of free government had failed to accomplish. In this connection, it seems proper to state the origin and purpose of that definition of treason which is found in the Constitution, and which was placed there in order, on the one hand, to defend the supremacy of the national government, and on the other, to guard the liberty of the citizen against the mischiefs of constructive definitions of that crime. No instructions had been given to the committee of detail on this subject. They, however, deemed it necessary to make some provision that would ascertain what should constitute treason against the United States. They resorted to the great English statute of the 25th Edward III.; and from it they selected two of the offences there defined as treason, which were alone applicable to the nature of the sovereignty of the United States. The statute, among a variety of other offences, denominates as treason the levying of war against the king in his realm, and the adhering to the king's enemies in his realm, giving them aid and comfort in the realm, or elsewhere.[319] The levying of war against the government, and the adhering to the public enemy, giving him aid and comfort, were crimes to which the government of the United States would be as likely to be exposed as any other sovereignty; and these offences would tend directly to subvert the government itself. But to compass the death of the chief magistrate, to counterfeit the great seal or the coin, or to kill a judge when in the exercise of his office, however necessary to be regarded as treason in England, were crimes which would have no necessary tendency to subvert the government of the United States, and which could therefore be left out of the definition of treason, to be punished according to the separate nature and effects of each of them. The committee accordingly provided that "treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them."[320] But here, it will be perceived, two errors were committed. The first was, that the levying of war against a State was declared to be treason against the United States. This opened a very intricate question, and loaded the definition with embarrassment; for, however true it might be, in some cases, that an attack on the sovereignty of a State might tend to subvert or endanger the government of the United States, yet a concerted resistance to the laws of a State, which is one of the forms of "levying war" within the meaning of that phrase, might have in it no element of an offence against the United States, and might have no tendency to injure their sovereignty. Besides, if resistance to the government of a State were to be made treason against the United States, the offender, as was well said by Mr. Madison, might be subject to trial and punishment under both jurisdictions.[321] In order, therefore, to free the definition of treason of all complexity, and to leave the power of the States to defend their respective sovereignties without embarrassment, the Convention wisely determined to make the crime of treason against the United States to consist solely in acts directed against the United States themselves. The other error of the committee consisted in omitting from the definition the qualifying words of the statute of Edward III., "giving them aid and comfort," which determine the meaning of "adhering" to the public enemy.[322] These words were added by the Convention, and the crime of treason against the United States was thus made to consist in levying war against the United States, or in adhering to _their_ enemies by the giving of aid and comfort.[323] With respect to the nature of the evidence of this crime, the committee provided that no person should be convicted of treason unless on the testimony of two witnesses. But to make this more definite, it was provided by an amendment, that the testimony of the two witnesses should be to the same overt act; and also that a conviction might take place on a confession made in open court. The punishment of treason was not prescribed by the Constitution, but was left to be declared by the Congress; with the limitation, however, that no attainder of treason should work corruption of blood, or forfeiture, except during the life of the person attainted.[324] FOOTNOTES: [309] These were the 1st, 7th, 20th, and 21st of the resolutions. _Ante_, p. 190 _et seq._, note. [310] "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." [311] The Constitution, Art. VI. (See Appendix.) [312] July 17. Elliot, V. 322. [313] The Constitution. Art. VI. [314] Ibid. Art. III. § 2. [315] Articles XXI., XXII., XXIII. of their draft. Elliot, V. 381. [316] The Constitution, Art. VII. [317] _Ante_, p. 177, _et seq._ The resolutions may be found in Elliot, V. 541 (Sept. 13). But the proceedings on them are not found in Mr. Madison's Minutes, or in the Journal of the Convention. The official record of their unanimous adoption was laid before Congress on the 28th of September, 1787, and it bears date September 17th. It recites the presence in Convention of all the states that attended excepting New York, and in the place of that _State_ stands "Mr. Hamilton _from_ New York." This record precedes the official letter addressed by the Convention to Congress. See Journals of Congress for September 28, 1787, Vol. XII. pp. 149-165. [318] See a speech made by Hamilton in the Convention of New York. Works, II. 462. [319] 4 Blackstone's Com., Book IV. ch. 6. [320] Art. VI. § 2 of the first draft of the Constitution. Elliot, V. 379. [321] Elliot, V. 450. [322] The effect of these words is as if the statute read "adhering to the enemy _by_ giving him aid and comfort," and not as if they were two separate offences. [323] See the debate, Elliot, V. 447-451. [324] Ibid. Art. III. § 3 of the Constitution. CHAPTER XIII. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--ELECTION AND POWERS OF THE PRESIDENT. In describing the manner in which the Constitution and powers of the Senate were finally arranged, I have already had occasion to state, that, after the report of the committee of detail came in,--vesting the appointment of the President in the national legislature, creating a term of seven years, and making the incumbent ineligible a second time,--a direct election by the people was negatived by a large majority. This mode of election, as a means of removing the appointment from the legislature, would have been successful, but it was inadmissible on other accounts. In the first place, it would have given to the government a character of complete consolidation, so far as the executive department was concerned, to have vested the election in the people of the United States as one community. In the second place, not only would the States, as sovereignties, have been excluded from representation in this department, but the slaveholding States would have had a relative weight in the election only in the proportion of their free inhabitants. On the other hand, to provide that the executive should be appointed by electors, to be chosen by the people of the States, involved the necessity of prescribing some rule of suffrage for the people of all the States, or of adopting the existing rules of the States themselves. Probably it was on account of this embarrassment, that a proposition for electors to be chosen in this mode was negatived, by a bare majority, soon after the vote rejecting a direct election of the President by the people.[325] There remained the alternatives of an election by one or both of the houses of Congress, or by electors appointed by the States in a certain ratio, or by electors appointed by Congress. The difficulty of selecting from these various modes led the Convention to adhere to an election by the two houses; and when the disadvantages of this plan, already described, had developed the necessity for some other mode of appointment, the relations between the Senate and the executive were, as we have seen, sent to a grand committee, who devised a scheme for their adjustment. In this plan it was proposed that each State should appoint, in such manner as its legislature might direct, a number of electors equal to the whole number of senators and representatives in Congress to which the State might be entitled under the provisions of the Constitution already agreed upon. The advantages of this plan were, that it referred the mode of appointing the electors to the States themselves, so that they could adopt a popular election, or an election by their legislatures, as they might prefer; and that it would give to each State the same weight in the choice of the President that it was to have in the two houses of Congress, provided a majority or a plurality of the electoral votes were to determine the appointment. The committee recommended that the electors should meet in their respective States, on the same day, and vote by ballot for two persons, one of whom, at least, should not be an inhabitant of the same State with themselves; and that the person having the greatest number of votes, if such number were a majority of all the electoral votes, should be the President. To this part of the plan, there was likely to be little objection. But the mode of electing the President in case of a failure to concentrate a majority of the electoral votes upon one person, or in case more than one person should have such a majority, was the most difficult part of the whole scheme. The object of the committee was to devise a process which should result in the election both of a President and a Vice-President; and they proposed to make the person having the next largest number of electoral votes the Vice-President. If two of the persons voted for should have a majority of all the votes, and the same number of votes, then the Senate were immediately to choose one of them, by ballot, as the President; if no person should have such a majority, then the Senate were to choose the President by ballot from the five highest on the list of candidates returned by the electors. If a choice of the President had been effected by the electoral votes, the person having the next highest number of electoral votes was to be the Vice-President; and if there were two or more having an equal number of electoral votes, the Senate were to choose one of them as Vice-President. From the proceedings which took place upon this plan, it appears that what many of the framers of the Constitution most apprehended was, that the votes in the electoral bodies would not be sufficiently concentrated to effect a choice, from want of the requisite general knowledge of the persons who might be considered in different parts of the Union as fit candidates for these high offices; and consequently that the election would be thrown into such other body as might be directed to make it after a failure in the action of the electors. It is a remarkable proof of their wisdom, that, although intimations began to appear in the public prints, as soon as the Constitution was published, that Washington would be the first President of the United States,--an expectation that must, therefore, have been entertained by the members of the Convention before they had finished their labors,--they were at no time under the influence of this pleasing anticipation.[326] They kept steadily in view a state of things in which, from the absence of statesmen of national reputation and influence, and from the effect of local preferences, no choice would be made by the electors. Hence their solicitude to provide for the secondary election, in such a way as to admit of a re-election of the incumbent. It was soon found that between the President and the Senate there would be a mutual connection and influence, which would be productive of serious evils, whether he were to be made eligible or ineligible a second time, if the Senate were to have the appointment after the electors had failed to make a choice. To remedy this, many of the members, among whom was Hamilton, preferred to let the highest number of electoral votes, whether a majority or not, appoint the President. As the grand committee had proposed to reduce the term of office from seven to four years, and to strike out the clause making the incumbent ineligible,--a change which met the approbation of a large majority of the States,--it became still more necessary to prevent any resort to the Senate for a secondary election. But an appointment by less than a majority of the electoral votes presented, on the other hand, the serious objection that the President might owe his appointment to a minority of the States. To preserve, as far as possible, a federal character for the government, in some of its departments, was justly regarded as a point of great importance. One branch of the legislature had become a depositary of the democratic power of a majority of the people of the United States;--the other branch was the representative of the States in their corporate capacities;--the President was to be in some sense a third branch of the legislative power, by means of his limited control over the enactment of laws;--and it was, therefore, something more than a mere question of convenience, whether he should, at the final stage of the process, be elected by a less number than a majority of all the States. That part of the plan which proposed to elect him by a majority of all the electoral votes, giving to each State as many votes as it was to have in both houses of Congress, might make the individual, when so elected, theoretically the choice of a majority of the people of the United States, although not necessarily the choice of a majority of the States. But there was a peculiar feature of this plan,--afterwards, in the year 1804, changed to a more direct method,--by which the electors were required to return their votes for two persons, without designating which of them was their choice for President, and which for Vice-President, the designation being determined by the numbers of votes found to be given for each person. This method of voting increased the chances of a failure to choose the President by the electoral votes. It is not easy to understand why the framers of the Constitution adhered to it; although it is probable that its original design was to prevent corruption and intrigue. Whatever its purpose may have been, it served to make still more prominent the expediency, not only of removing the ultimate election from the Senate, but of providing some mode of conducting that election by which an appointment by a minority of the States would be prevented, when a majority of the electoral votes had not united upon any one individual, or had united upon two. The plan which had been prepared by the grand committee, and which adjusted the relations between the executive and the Senate respecting appointments and treaties, had left no body in the government so likely to be free from intimate relations with the President, and at the same time so capable of being made the instrument of an election, as the House of Representatives. By the fundamental principle on which that body had been agreed to be organized,--in direct contrast to the basis of the Senate,--its members were the representatives of the people inhabiting the several States, and in the business of legislation a majority of their votes was to express the will of a majority of the people of the United States. But the representatives were to be chosen in the separate States; and nothing was more easy, therefore, than to provide that, in any other function, they should act as the agents of their States, making the States themselves the real parties to the act, without doing any violence to the principle on which they were assembled for the purposes of legislation. Accordingly, as soon as a transfer of the ultimate election from the Senate to the House of Representatives was proposed, the method of voting by States was adopted, with only a single dissent.[327] The establishment of two thirds as a quorum of the States for this purpose, and the provision that a majority of all the States should be necessary to a choice, followed naturally as the proper safeguards against corruption, and were adopted unanimously. The principal office of the executive department was thus provided for; but the ultimate choice of the Vice-President remained to be regulated. This office was unknown to the draft of the Constitution prepared by the committee of detail, and was suggested only when the mode of organizing the executive, and of providing for some of the separate functions of the Senate, came to be closely considered together. We are to look for its purposes, therefore, in the provisions specially devised for the settlement of these relations. In the first place, it was apparent that the executive would be a branch of the government that ought never to be vacant. The principle which, in hereditary monarchies, on the death of the sovereign, instantly devolves the executive power upon him who stands next in a fixed order of succession, must in some degree be imitated in purely elective governments, if great mischiefs are to be avoided. The difficulty which attends its application to such governments consists not in the nature of the principle itself, but in finding a number of public functionaries who can be placed in a certain order of succession, without creating mere heirs to the succession, for that purpose alone. In hereditary governments, the members of a family, in a designated order, stand as the successive recipients of the executive office; and each of them, until he reaches the throne, may have no other function in the state than that of an heir, near or remote, to the crown, and may, without inconvenience to the public welfare, occupy that position alone. But in elective, and especially in republican governments, the succession must be devolved on some person already filling some other office; for to designate as a successor to the chief magistrate a person who has no public employment, and no other public position than that of an heir apparent, would be attended with many obvious disadvantages, in such a government. Fortunately, the peculiar construction of the Senate was found to require a presiding officer who should not be a member of the body itself. As each State was to be represented by two delegates, and as it would be important not to withdraw either of them from active participation in the business of the chamber, a presiding officer was needed who would represent neither of the States. By placing the Vice-President of the United States in this position, he would have a place of dignity and importance, would be at all times conversant with the public interests, and might pass to the chief magistracy, on the occurrence of a vacancy, attended with the public confidence and respect. This arrangement was devised by the grand committee, and was adopted with general consent. It contemplated, also, that the Vice-President, as President of the Senate, should have no vote, unless upon questions on which the Senate should be equally divided; and on account of his relation to this branch of the legislature, the ultimate election of the Vice-President, when the electors had failed to appoint him under the rule prescribed, was retained in the hands of the Senate. The rule that was to determine when the Vice-President was to succeed to the functions of the chief magistrate, was also embraced in the plan of the grand committee. It was apparent that a vacancy in the principal office might occur by death, by resignation, by the effect of inability to discharge its powers and duties, and by the consequences of an impeachment. When either of these events should occur, it was provided that the office should devolve on the Vice-President. In the case of death or resignation of the President, no uncertainty can arise. In a case of impeachment, a judgment of conviction operates as a removal from office. But the grand committee did not provide, and the Constitution does not contain any provision or direction, for ascertaining the case of an inability to discharge the powers and duties of the office. When such an inability is supposed to have occurred, and is not made known by the President himself, how is it to be ascertained? Is there any department of the government that can, with or without a provision of law, proceed to inquire into the capacity of the President, and to pronounce him unable to discharge his powers and duties? What is meant by the Constitution as _inability_ is a case which does not fall within the power of impeachment, for that is confined to treason, bribery, and other high crimes and misdemeanors. It is the case of a simple incapacity, arising from insanity, or ill health, or, as might possibly occur, from restraint of the person of the President by a public enemy. But in the former case, how shadowy are the lines which often separate the sound mind or body from the unsound! Society has had one memorable example, in modern times and in constitutional monarchy, of the delicacy and difficulty of such an inquiry;--an instance in which all the appliances of science and all the fixed rules of succession were found scarcely sufficient to prevent the rage of party, and the struggles of personal ambition, from putting the state in jeopardy.[328] With us, should such a calamity ever happen, there must be a similar effort to meet it as nearly as possible upon the principles of the Constitution, and consequently there must be a similar strain on the Constitution itself. In order to make still further provision for the succession, Congress were authorized to declare by law what officer should act as President, in case of the removal, death, resignation, or inability of both the President and the Vice-President, until the disability should be removed, or a new President should be elected. The mode of choosing the electors was, as we have seen, left to the legislatures of the States. Uniformity, in this respect, was not essential to the success of this plan for the appointment of the executive, and it was important to leave to the people of the States all the freedom of action that would be consistent with the free working of the Constitution. But it was necessary that the time of choosing the electors, and the day on which they were to give their votes, should be prescribed for all the States alike. These particulars were, therefore, placed under the direction of Congress, with the single restriction, that the day of voting in the electoral colleges should be the same throughout the United States. In order to make the electors a distinct and independent body of persons, appointed for the sole function of choosing the President and Vice-President, it was provided further, that no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.[329] The electors were required to meet in their respective States, and to vote by ballot for two persons, one of whom at least should not be an inhabitant of the same State with themselves. Having made a list of all the persons voted for, and of the number of votes given for each, they were to sign and certify it, and to transmit it sealed to the seat of government of the United States, directed to the President of the Senate, who, in the presence of the Senate and the House of Representatives, was to open all the certificates, and the votes were then to be counted. Such was the method devised by the framers of the Constitution for filling the executive office. Experience has required some changes to be made in it. It has been found that to require the electors to designate the persons for whom they vote as the President and Vice-President, respectively, has a tendency to secure a choice by the electoral votes, and therefore to prevent the election from being thrown into the House of Representatives; and it has also been deemed expedient, when the election has devolved on the House of Representatives, to confine the choice of the States to the three highest candidates on the list returned by the electors. These changes were made by the twelfth of the amendments to the Constitution, adopted in the year 1804, which also provides that the person having the greatest number of the electoral votes for President shall be deemed to be chosen by the electors, if such number be a majority of the whole number of electors appointed. If a choice is not made by the electors, or by the House of Representatives, before the fourth day of March next following the election, the amendment declares that the Vice-President shall act as President, "as in the case" (provided by the Constitution) "of the death or other constitutional disability of the President." In the appointment of the Vice-President, the amendment has also introduced some changes. The person having the greatest number of the electoral votes as Vice-President, if the number is a majority of all the electors appointed, is to be the Vice-President; but if no choice is thus effected, the Senate are to choose the Vice-President from the two highest candidates on the list returned by the electors; but a quorum for this purpose is to consist of two thirds of the whole number of senators, and a majority of the whole number is made necessary to a choice. The amendment further adopts the same qualifications for the office of Vice-President as had been established by the Constitution for the office of President.[330] Thus it appears, from an examination of the original Constitution and the amendment, that the most ample provision is made for filling the executive office, in all contingencies but one. If the electors fail to choose according to the rule prescribed for them, the election devolves on the House of Representatives. If that body does not choose a President before the fourth day of March next ensuing, the office devolves on the Vice-President elect, whether he has been chosen by the electors or by the Senate. But if the House of Representatives fail to choose a President, and the Senate make no choice of a Vice-President, or the Vice-President elect dies before the next fourth day of March, the Constitution makes no express provision for filling the office, nor is it easy to discover in it how such a vacancy is to be met. The Constitution, it is true, confers upon Congress authority to provide by law for the case of removal, death, resignation, or inability of _both_ the President and Vice-President, and to declare what officer shall then act as President; and it provides that the officer so designated by a law of Congress shall act accordingly, until the disability be removed, or a President shall be elected. But there is every reason to believe that this provision embraces the case of a vacancy in both offices occasioned by removal, death, resignation, or inability, not of the President and Vice-President elect, but of the President and Vice-President in office. It may be doubted whether the framers of the original Constitution intended to provide for a vacancy in both offices occasioned by the failure of the House of Representatives to elect a President and the death of the Vice-President elect, or a non-election of a Vice-President by the Senate, before the fourth day of March. Their plan was in the first instance studiously framed for the purpose of impressing on the electors the duty of concentrating their votes; and although they saw and provided for the evident necessity of an election of a President by the House of Representatives, when the electoral votes had not produced a choice, they omitted all express provision for a failure of the House to choose a President, apparently for the purpose of making the States in that body feel the importance of the secondary election, and the duty of uniting their votes. This omission was supplied by the amendment, which authorizes the Vice-President elect to act as President, when the House of Representatives have failed to choose a President, "as in the case of the death or other constitutional disability of the President." This adoption, for the case of a non-election by the House, of the mode of succession previously established by the Constitution, shows that the authority which the Constitution gave to Congress to declare by law what officer shall act as President, in case of a vacancy in both offices, was confined to the removal, death, resignation, or inability of the President and Vice-President in office, and does not refer to the President and Vice-President elect, whose term of office has not commenced.[331] The committee of detail made no provision respecting the qualifications of the President. But the grand committee, to whom the construction of the office was referred, recommended the qualifications which are to be found in the Constitution; namely, that no person shall be eligible to the office who was not born a citizen of the United States, or was not a citizen at the time of the adoption of the Constitution, and who had not attained the age of thirty-five years, and been fourteen years a resident within the United States. These requirements were adopted with unanimous assent.[332] That the executive should receive a stipend, or pecuniary compensation, was a point which had been settled in the earliest stage of the proceedings, notwithstanding the grave authority of Franklin, who was opposed to it. The speech which he delivered on this subject was based upon the maxim, that, in all cases of public service, the less profit, the greater honor. He seems to have been actuated chiefly by the fear that the government would in time be resolved into a monarchy; and he thought this catastrophe would be longer delayed, if the seeds of contention, faction, and tumult were not sown in the system, by making the places of honor places of profit. He maintained this opinion for the case even of a plural executive, which he decidedly advocated; and he instanced the example of Washington, who had led the armies of the Revolution for eight years without receiving the smallest compensation for his services, to prove the practicability of "finding three or four men, in all the United States, with public spirit enough to bear sitting in peaceful council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed." His plan was treated with the respect due to his illustrious character, but no one failed to see that it was a "Utopian idea."[333] The example of Washington was, in truth, inapplicable to the question. A patriotic Virginia gentleman, of ample fortune, was called upon, in the day of his country's greatest trial, to take the lead in a desperate struggle for independence. The nature of the war, his own eminence, his character and feelings, the poverty of a country which he foresaw would often be unable to pay even the common soldier, and his motives for embarking in the contest, all united to make the idea of compensation inadmissible to a man whose fortune made it unnecessary. Such a combination of circumstances could scarcely ever occur in the case of a chief magistrate of a regular and established government. If an individual should happen to be placed in the office, who possessed private means enough to render a salary unnecessary to his own wants, or to the dignity of the position, the duty of his example might point in precisely the opposite direction, and make it expedient that he should receive what his successors would be unable to decline. But the real question which the framers of the Constitution had to decide was, in what way could the office be constituted so as to give the people of the United States the widest range of choice among the public men fit to be placed in it. To attach no salary to the chief executive office, in a republican government, would practically confine the office to men who had inherited or accumulated wealth. The Convention determined that this mischief should be excluded. They adopted the principle of compensation for the office of chief magistrate, and when the committee of detail came to give effect to this decision, they added the provision, that the compensation shall neither be increased nor diminished during the period for which a President has been elected.[334] The limitation which confines the President to his stated compensation, and forbids him to receive any other emolument from the United States, or from any State, was subsequently introduced, but not by unanimous consent.[335] The question whether the single person in whom the executive power was to be vested should exercise it with or without the aid or control of any council of state, was one that in various ways ran through the several stages of the proceedings. As soon as it was settled that the executive should consist of a single person, the nature and degree of his responsibility, and the extent to which it might be shared by or imposed upon any other officers, became matters of great practical moment. What was called at one time a council of revision was a body distinct from a cabinet council, and was proposed for a different purpose. The function intended for it by its advocates related exclusively to the exercise of the revisionary check upon legislation. But we have seen that the nature of this check, the purposes for which it was to be established, and the practical success with which it could be introduced into the legislative system, required that the power and the responsibility should rest with the President alone. There remained, however, the further question concerning a cabinet, or council of state; an advisory body, with which some of the most important persons in the Convention desired to surround the President, to assist him in the discharge of his duties, without the power of controlling his actions, and without diminishing his legal responsibility. Such a plan not having received the sanction of the Convention, the draft of the Constitution reported by the committee of detail of course contained no provision for it. It was subsequently brought forward, and received the recommendation of a committee;[336] but the grand committee, who were charged with the adjustment of the executive office, substituted for it a different provision, which gave the President power to "require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." The friends of a council[337] regarded this arrangement of the executive office, especially with regard to the power of appointment, as entirely defective.[338] But the reason on which it was rested by the grand committee, and on which the plan of a council of state was rejected, was, that the President of the United States, unlike the executive in mixed governments of the monarchical form, was to be personally responsible for his official conduct, and that the Constitution should do nothing to diminish that responsibility, even in appearance. If it had not been intended to make the President liable to impeachment, a cabinet might have been useful, and would certainly have been necessary, if there was to be any responsibility anywhere for executive acts. But a large majority of the States preferred to interpose no shield between the President and a public accusation. He might derive any assistance from the great officers of the executive departments which Congress might see fit to establish, that he could obtain from their opinions or advice; but the powers which the Constitution was to confer on him must be exercised by himself, and every official act must be performed as his own.[339] What those powers were to be, had not been fully settled when the first draft of the Constitution came from the committee of detail. The executive function, or the power and duty of causing the laws to be duly and faithfully executed; authority to give information to Congress on the state of the Union, and to recommend measures for their consideration; power in certain cases to convene and to adjourn the two houses; the commissioning of all officers, and the appointing to office in cases not otherwise provided for by the Constitution; the receiving of ambassadors; the granting of reprieves and pardons; the chief command of the army and navy of the United States and of the militia of the several States,--were all provided for. But the foreign relations of the country were committed wholly to the Senate, as was also the appointment of ambassadors and of judges of the Supreme Court. It is not necessary to explain again the grounds on which the Convention were finally obliged to alter this arrangement. It will be convenient, however, to take up the several powers and functions of the executive, and to describe briefly the scope and purpose ultimately given to each of them. In the plan of government originally proposed by Governor Randolph, the division into the three departments of an executive, a legislative, and a judiciary, implied, for the first of these departments, according to the theory of all governments which are thus separated, power to carry into execution the existing laws. This government, however, was to succeed one that had regulated the affairs of the Union for several years, in which all the powers vested in the confederacy of the States were held and exercised by the Congress of their deputies; and among those powers was that of declaring war and making peace. This function is, moreover, embraced in the general powers of the executive department, in most governments in which there is a regular separation of that department from the legislative and the judiciary. But it became apparent at the very commencement of the process of forming the Constitution of the United States, that the question whether the executive should be intrusted with the power of war and peace would not only be made, but that the system would have to be so arranged as to make the government, in this particular, an exception to the general rule. This was partly owing to an unwillingness to intrust such a power to one person;--or even to a plurality of persons, if the executive should be so constituted. If to the general powers of executing the laws, and of appointing to office, there were to be added the power to make war and peace, and the whole were to be vested in a single magistrate, it was rightly said that the government would be in substance an elective monarchy. The power of the executive, over the external relations of the country at least, would be the same, in kind and in extent, as it is in constitutional monarchies, and the sole difference would be that the supreme magistrate would be elective. This was not intended, and was not admissible. Still another reason for making the government of the United States, in this feature, an exception to the general rule, was the necessity for giving to the States, in their corporate capacities, some control over the foreign relations of the country. Our further inquiries concerning this part of the powers and functions of the chief magistrate will only need to extend so far as to ascertain what is the "executive power," which the Constitution declares shall be "vested" in the President. In the resolutions, which at different stages had previously passed in the Convention, this had been described as a "power to carry into execution the national laws"; and this description was regarded as including such other powers, not legislative or judicial in their nature, as might from time to time be delegated to the President by Congress.[340] The committee of detail, in drafting the Constitution, employed the phrase "executive power" to describe what had thus been designated by the resolutions sent to them; and as the plan of government which they presented proposed to make the declaration of a state of war a legislative act, the prosecution of a war, when declared, was left to fall within the executive duties as part of the "executive power." In order, moreover, that the executive duties might be still more clearly defined, the committee provided that the President "shall take care that the laws be faithfully executed," and imposed upon him the same obligation by the force of his oath of office. The committee having been directed to provide for the end in view, it was considered that they were also to provide the means by which the end was to be obtained.[341] Accordingly, they made the President commander-in-chief of the army and navy, and of the militia of the States when called into the service of the United States. The President appears, therefore, to have been placed in the same position with reference to the means to be employed in the discharge of all his executive duties, when force may in his judgment be necessary. The declaration of a state of war is an enactment by the legislative branch of the government; the creation of laws is a function that belongs exclusively to the same department;--but when a law exists, or the state of war exists, it is for the President, by virtue of his executive office, and of his position as commander-in-chief, to employ the army and navy, and the militia actually called into the service of the United States, in the execution of the law, or the prosecution of hostilities, in such a manner as he may think proper.[342] Closely allied to the power of executing the laws is that of pardoning offences, and relieving against judicial sentences. This power was originally extended by the committee of detail to all offences against the United States, excepting cases of impeachment, in which they provided that the pardon of the President should not be pleaded in bar. This would have made the power precisely like that of the king of England; since, by the English law, although the king's pardon cannot be pleaded in bar of an impeachment, he may, after conviction, pardon the offender. But as it was intended in the Constitution of the United States to limit the judgment in an impeachment to a removal from office, and to subsequent disqualification for office, there would not be the same reason for extending to it the executive power of pardon that there is in England, where the judgment is not so limited. The Convention, therefore, took from the President all power of pardon in cases of impeachment, making them the sole exception to the power.[343] A strong effort was indeed made to establish another exception in cases of treason, upon the ground, chiefly, that the criminal might be the President's own instrument in an attempt to subvert the Constitution. But since all agreed that a power of pardon was as necessary in cases of treason as in all other offences, and as it must be given to the legislature, or to one branch of it, if not lodged with the executive, a very large majority of the States preferred to place it in the hands of the President, especially as he would be subject to impeachment for any participation in the guilt of the party accused.[344] The power to make treaties, which had been given to the Senate by the committee of detail, and which was afterwards transferred to the President, to be exercised with the advice and consent of two thirds of the senators present, was thus modified on account of the changes which the plan of government had undergone, and which have been previously explained. The power to declare war having been vested in the whole legislature, it was necessary to provide the mode in which a war was to be terminated. As the President was to be the organ of communication with other governments,[345] and as he would be the general guardian of the national interests, the negotiation of a treaty of peace, and of all other treaties, was necessarily confided to him. But as treaties would not only involve the general interests of the nation, but might touch the particular interests of individual States, and, whatever their effect, were to be part of the supreme law of the land, it was necessary to give to the senators, as the direct representatives of the States, a concurrent authority with the President over the relations to be affected by them. The rule of ratification suggested by the committee to whom this subject was last confided was, that a treaty might be sanctioned by two thirds of the senators present, but not by a smaller number. A question was made, however, and much considered, whether treaties of peace ought not to be subjected to a different rule. One suggestion was, that the Senate ought to have power to make treaties of peace without the concurrence of the President, on account of his possible interest in the continuance of a war from which he might derive power and importance.[346] But an objection, strenuously urged, was, that, if the power to make a treaty of peace were confided to the Senate alone, and a majority or two thirds of the whole Senate were to be required to make such a treaty, the difficulty of obtaining peace would be so great, that the legislature would be unwilling to make war on account of the fisheries, the navigation of the Mississippi, and other important objects of the Union.[347] On the other hand, it was said that a majority of the States might be a minority of the people of the United States, and that the representatives of a minority of the nation ought not to have power to decide the conditions of peace. The result of these various objections was a determination on the part of a large majority of the States not to make treaties of peace an exception to the rule, but to provide a uniform rule for the ratification of all treaties. The rule of the Confederation, which had required the assent of nine States in Congress to every treaty or alliance, had been found to work great inconvenience; as any rule must do, which should give to a minority of States power to control the foreign relations of the country. The rule established by the Constitution, while it gives to every State an opportunity to be present and to vote, requires no positive quorum of the Senate for the ratification of a treaty; it simply demands that the treaty shall receive the assent of two thirds of all the members who may be present. The theory of the Constitution undoubtedly is, that the President represents the people of the United States generally, and the senators represent their respective States; so that, by the concurrence which the rule thus requires, the necessity for a fixed quorum of the States is avoided, and the operations of this function of the government are greatly facilitated and simplified.[348] The adoption, also, of that part of the rule which provides that the Senate may either "advise or consent," enables that body so far to initiate a treaty, as to propose one for the consideration of the President;--although such is not the general practice. Having already described the changes which took from the Senate alone the appointment of the judges of the Supreme Court and ambassadors, it is only necessary in this connection to notice the manner in which the power of appointment to all offices received its final scope and limitations. The plan reported by the committee of detail had, as we have repeatedly seen, vested the appointment of ambassadors and judges of the Supreme Court in the Senate, and had given to the President the sole voice in the appointment of all other officers of the United States. The adjustment afterwards made gave the nomination of all officers to the President, but required the advice and consent of the Senate to complete an appointment. Two inconveniences were likely to be experienced under this arrangement. Many inferior offices might be created, which it would be unnecessary and inexpedient to fill by this process of nomination by the President and confirmation by the Senate; and vacancies might occur in all offices, which would require to be filled while the Senate was not in session. To obviate these inconveniences, the Congress were authorized to vest the appointment of such inferior officers as they might think proper in the President alone, in the courts of law, or in the heads of departments; and power was given to the President to fill up all vacancies that might happen during the recess of the Senate, by granting commissions which should expire at the end of their next session.[349] In order to restrain the President from practically creating offices by the power of appointment, his power was limited to "offices created by law," and to those specially enumerated in the Constitution.[350] In addition to these powers, the committee of detail had provided for certain direct relations, of a special nature, between the President and the Congress. One of these was to consist in giving to the Congress from time to time information of the state of the Union, and in recommending to their consideration such measures as he shall judge necessary and expedient. The other was embraced in the power to convene the two houses on extraordinary occasions; and, whenever there should be a disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper. The latter power is to be taken in connection with the clause which requires Congress to meet at least once in every year, and on the first Monday in December, unless a different day shall be appointed by law. Neither the two houses by agreement, nor the President in case of a disagreement, can fix on a time of adjournment beyond the day of the commencement of the next regular session. But subject to this restriction, the power of the President to determine the time at which the two houses shall reassemble, when they do not agree upon a time, extends to every session of Congress, whether it be regular or "extraordinary."[351] FOOTNOTES: [325] August 24. Elliot, V. 472, 473. [326] The Constitution was published in the Pennsylvania Journal, Sept. 19th. On the 27th, another Philadelphia paper suggested, or, as we should now say, "nominated" General Washington for the Presidency. [327] Delaware. Elliot, V. 519. [328] I allude, of course, to the case of King George III., which had not happened when our Constitution was framed. To ascertain the sanity of a private person is certainly often no less delicate and difficult, than to inquire into the sanity of a person in a high public position. But there is a legal process for determining the capacity of every person to discharge private duties or to exercise private rights. In the case of the President of the United States, there is no mode provided by the Constitution for ascertaining his inability to discharge his public functions, and no authority seems to have been given to Congress to provide for such an inquiry. Perhaps the authority could not have been given, with safety and propriety. [329] This clause was inserted, by unanimous consent, on the motion of Mr. King and Mr. Gerry, September 6. Elliot, V. 515. [330] See _post_, p. 621. [331] Congress, however, have not only provided that the President _pro tempore_ of the Senate and the Speaker of the House of Representatives shall successively act as President, in case of the removal, death, resignation, or inability both of the President and Vice-President, until the disability be removed or a President shall be elected, but also that, whenever the offices of President and Vice-President _shall both become vacant_, a new appointment of electors shall be ordered, and a new election made. The constitutional authority for this latter provision is at least doubtful. (Act of March 1, 1792.) I have discovered no evidence that the framers of the Constitution contemplated an intermediate election of President and Vice-President, excepting an amendment moved by Mr. Madison. The clause which enables Congress to declare what officer shall act as President, on the death, &c. of both the President and Vice-President, was introduced by Governor Randolph, and terminated thus: "And such officer shall act accordingly, until the time of electing a President shall arrive." Mr. Madison moved to substitute for this the words, "until such disability be removed, or a President shall be elected"; and he has recorded in his Minutes, that he remarked, on moving this amendment, that the phraseology of Governor Randolph "would prevent a supply of the vacancy by an intermediate election." This amendment was adopted. (Elliot, V. 520, 521.) But the difficulty in the way of construing the clause so as to give effect to this suggestion is, that the terms employed by Mr. Madison do not of themselves necessarily import an authority to Congress to order an intermediate election, any more than those used by Governor Randolph. Either of these expressions, when incorporated into the Constitution, would have to be construed with reference to the whole system prescribed by the Constitution for filling the executive branch of the government. Taking all the provisions together, it appears that the executive power is to be vested in a President, who is to hold his office for a term of four years; that Congress shall fix the day on which he is to be chosen by the electors; that, when so chosen, he is to hold the executive power for four years; that if he dies, or is disabled, within that term, and there is no Vice-President to succeed him, Congress shall declare by law what officer shall then _act as President_, that is, shall hold and exercise the executive power, and such officer is to _act accordingly_, until the disability be removed, or a President shall be elected. It would seem, therefore, that when the officer designated by Congress is required to _act as President_, the powers and duties of the office are devolved upon him for the residue of the term of four years, in a case of vacancy by death, removal, or resignation; for the terms "until a President shall be elected" certainly do not import any express authority to order a new election; and although there is a general authority in Congress to fix the day for the election of a President, it must be a President chosen for the term of four years. [332] Elliot, V. 462, 507, 521, 522. [333] He anticipated that it would be so regarded. Hamilton, who was in all his views, as unlike Franklin as any man could be, seconded the motion, out of respect for the mover. [334] Elliot, V. 380. [335] Connecticut, New Jersey, Delaware, and North Carolina voted against it. [336] Elliot, V. 446, 462. [337] Mason, Franklin, Wilson, Dickinson, and Madison. [338] Elliot, V. 525. [339] Those who are not familiar with the precise structure of the American government will probably be surprised to learn that what is in practice sometimes called the "Cabinet" has no constitutional existence as a directory body, or one that can decide anything. The theory of our government is, that what belongs to the executive power is to be exercised by the uncontrolled will of the President. Acting upon the clause of the Constitution which empowers the President to call for the opinions in writing of the heads of departments, Washington, the first President, commenced the practice of taking their opinions in separate consultation; and he also, upon important occasions, assembled them for oral discussion, in the form of a council. After having heard the reasons and opinions of each, he decided the course to be pursued. The second President, Mr. John Adams, followed substantially the same practice. The third President, Mr. Jefferson, adopted a somewhat different practice. When a question occurred of sufficient magnitude to require the opinions of all the heads of departments, he called them together, had the subject discussed, and a vote taken, in which he counted himself but as one. But he always seems to have considered that he had the _power_ to decide against the opinion of his cabinet. That he never, or rarely, exercised it, was owing partly to the unanimity in sentiment that prevailed in his cabinet, and to his desire to preserve that unanimity, and partly to his disinclination to the exercise of personal power. When there were differences of opinion, he aimed to produce a unanimous result by discussion, and almost always succeeded. But he admits that this practice made the executive, in fact, a directory. Jefferson's Works, V. 94, 568, 569. [340] Elliot, V. 141, 142. [341] Elliot, V. 343, 344. [342] The Constitution having vested in Congress power to provide for calling the militia into the service of the United States, to execute the laws, suppress insurrections, and repel invasions, the President cannot call out the militia unless authorized to do so by Congress. But with respect to the employment of the army and navy for any executive purpose, it may be doubted whether any authority from Congress is necessary; as it may also be doubted whether Congress can exercise any control over the President in the use of the land or naval forces, either in the execution of the laws, or in the discharge of any other executive duty. [343] Elliot, V. 480. [344] Ibid. 549. [345] It was to be one of the distinct functions of the President "to receive ambassadors and other public ministers." [346] Mr. Madison so thought. Elliot, V. 524. [347] Ibid. [348] The several votes taken upon different aspects of the rule for the ratification of treaties make the theory quite clearly what is stated in the text. See the proceedings, September 7, 8. Elliot, V. 524, 526. [349] This power embraces of course only those offices the appointment to which is vested in the President and Senate. [350] The Constitution (Art. II. § 2) seems to contemplate ambassadors, other public ministers and consuls, and judges of the Supreme Court, as officers to exist under the Constitution, whether provision is or is not made by law for their appointment and functions. It is made the imperative duty of the President to nominate, and with the consent of the Senate to appoint them. Hence it has been supposed that the President can appoint a foreign minister without waiting to have his particular office regulated or established by law; and as the President conducts the foreign intercourse of the country, he could prescribe the duties of such a minister. In like manner, with the consent of the Senate, the President could appoint a judge of the Supreme Court, and would be bound to do so, although no act of Congress existed providing for the organization and duties of the Court. But as the President cannot distribute the judicial power, the Court, when so appointed, would have only the functions conferred by the Constitution, namely, original jurisdiction in certain enumerated cases. [351] In the text of the Constitution, the President's power to adjourn the two houses of Congress in case of a disagreement follows immediately after his power to convene them on "extraordinary occasions"; and it has, therefore, been suggested that his power to adjourn them is confined to cases where they have been "extraordinarily" convened under the first power. But it is to be observed that the whole of the third section of Article II. contains an enumeration of separate powers of the President, recited _seriatim_. The power to _convene_ Congress is one power; and it extends only to "extraordinary" occasions, because the Constitution itself, or a law, convenes them at a fixed period, and thus makes the _ordinary_ occasions. But the power to adjourn the two houses to a particular time, in cases of disagreement as to the time, is a separate and general power, because the reason for which it was given at all applies equally to all sessions. That reason is, that there may be a peaceful termination of what would otherwise be an endless and dangerous controversy. Both Hamilton in the Federalist and Judge Story in his Commentaries have treated this as a separate and general power. (The Federalist, No. 77. Story on the Constitution, § 1563.) CHAPTER XIV. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--FORMATION OF THE JUDICIAL POWER. There now remains to be described the full conception and creation of the third department of the government, its judicial power. The distribution of the powers of government, when its subjects are to sustain no relation to any other sovereignty than that whose fundamental laws it is proposed to ordain, is a comparatively easy task. In such a government, when the theoretical division into the legislative, executive, and judicial functions is once adopted, the objects to which each is to be directed fall readily into their appropriate places. All that is necessary is, to see that these departments do not encroach upon the rights and duties of each other. There is, at least, no other power, claiming the obedience of the same people, whose just authority it is necessary to regard, and on whose proper domain no intrusion is to be permitted. How different is the task, when a government, either federal or national, is to be created, for a people inhabiting distinct political States, whose sovereign power is to remain for many purposes supreme over their respective subjects; when the individual is to be under rules of civil duty declared by different public organs; and when the object is to provide a judicial system through which this very difference of authority may be made to work out the ends of social order, harmony, and peace! This difficult undertaking was imposed upon the framers of the Constitution of the United States, and it was by far the most delicate and difficult of all their duties. It was comparatively easy to agree on the powers which the people of the States ought to confer on the general government, to define the separate functions of the legislature and the executive, and to lay down certain rules of public policy which should restrain the States in the exercise of their separate powers over their own citizens. But to construct a judicial power within the general government, and to clothe it with attributes which would enable it to secure the supremacy of the general Constitution and of all its provisions; to give it the exact authority that would maintain the dividing line between the powers of the nation and those of the State, and to give to it no more; and to add to these a faculty of dispensing justice to foreigners, to citizens of different States, and among the sovereign States themselves, with a more even hand and with a more assured certainty of the great ends of justice than any State power could furnish,--these were objects not readily or easily to be attained. Yet they were attained with wonderful success. The judicial power of the United States, considered with reference to its adaptation to the purposes of its creation, is one of the most admirable and felicitous structures that human governments have exhibited. The groundwork of its formation has been partly described in a previous chapter, where some of the principles are stated, which had been arrived at as being necessary to its great purposes. These principles related to the persons who were to exercise its functions, and to the jurisdiction or authority which they were to possess. With respect to the persons who were to exercise the judicial power, the result that had been reached when the first draft of the Constitution was to be prepared had fixed the tenure of good behavior for their office, and had placed their salaries, when once established, beyond the reach of any power of diminution by the legislature. It had also been determined that there should be one supreme tribunal, under the Constitution, and that the legislature should have power to establish inferior tribunals. But nothing more precise had been arrived at respecting jurisdiction, than the broad principles which declared that it should extend to cases arising under laws passed by the general legislature, and to such other questions as might touch the national peace and harmony. The committee of detail were to give effect to this declaration. Their scheme provided, under the first of these heads, that the jurisdiction should embrace cases arising under the laws of the United States; and as questions touching the national peace and harmony, they enumerated all cases affecting ambassadors, other public ministers, and consuls; impeachments of officers of the United States; all cases of admiralty and maritime jurisdiction; controversies between two or more States, excepting such as might regard territory or jurisdiction; controversies between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign states, citizens, or subjects. In cases of impeachment, cases affecting ambassadors, other public ministers, and consuls, and those in which a State should be party, they assigned the original jurisdiction to the Supreme Court. In all the other cases enumerated, the jurisdiction of the supreme tribunal was to be appellate only, with such exceptions and regulations as the legislature might make; and the original jurisdiction was left to be assigned by the legislature to such inferior tribunals as they might from time to time create. The trial of all criminal offences, except in cases of impeachment, was to be in the State where they had been committed, and was to be by jury. Controversies between States respecting jurisdiction or territory, and controversies concerning lands claimed under grants of different States, were to be tried by the Senate, and were consequently excluded from the judicial power. This plan, when compared with the full outline of the jurisdiction, as it was finally established, presented several remarkable defects. In the first place, it was silent with respect to the important distinction, familiar to the people of the United States, between proceedings in equity and proceedings at common law. This distinction, which extends not only to the forms of pleading, but to the principles of decision, the mode of trial, and the nature of the remedy, had been brought by the settlers of most of the Colonies from England, and had been perpetuated in their judicial institutions. It existed in most of the States, at the time of the formation of the national Constitution, and it was, in fact, a characteristic feature of the only system of judicature which the American people had known, excepting in their courts of admiralty. Although the institutions of the States differed in the degree in which they had adopted and followed it, the basis of their jurisprudence and forms of proceeding was the common law, as derived from its English sources and modified by their own customs or legislation, with more or less of that peculiar and more ample relief which is afforded by the jurisprudence and remedy known in the English system under the name of equity. Since the judicial power of the United States was to be exercised over a people whose judicial habits were thus fixed; since it must, to some extent, take cognizance of rights that would have to be adjudicated in accordance with the jurisprudence under which they had arisen; and since the individuals who would have a title to enter its tribunals might reasonably demand remedies as ample as a judicature of English origin could furnish, it was highly expedient that the Constitution should fully adopt the main features of that judicature. It is quite true, that a provision in the Constitution extending the judicial power to "all cases" affecting certain persons or certain rights, might be regarded by the legislature as a sufficient authority for the establishment of inferior courts with both a legal and an equitable jurisdiction, and might be considered to confer such a double jurisdiction on the supreme tribunal contemplated by the Constitution. But the text of the Constitution itself would be the source to which the people of the United States would look, when called upon to adopt it, for the benefits which they were to derive from it, and there would be no part of it which they would scrutinize more closely than that which was to establish the judicial power of the new government. If they found in it no imperative declaration making it the duty of Congress to provide for a jurisdiction in equity as well as at law, and no express adoption of such a jurisdiction for the supreme tribunal, they might well say that the character of the judicial power was left to the accidental choice of Congress, or to doubtful interpretation, instead of being expressly ordained in its full and essential proportions by the people. If a citizen of one State were to pursue a remedy in the courts of the Union against a citizen of another State, or if one State should have a judicial controversy with another, that would be a very imperfect system of judicature which should leave the form and extent of the remedy to be determined by the local law where the process was to be instituted, or which should confine the relief to the forms and proceedings of the common law. If the appellate jurisdiction of the supreme national tribunal were to be exercised over any class of controversies originating in the State courts, it was extremely important that the Constitution should expressly ascertain whether suits at law, or suits in equity, or both, were to be embraced within that appellate power. For these reasons, it became necessary for the Convention to supply this defect, by extending the judicial power, both in equity and at law, to the several cases embraced in it. Another defect in the report of the committee,--or what was regarded as a defect when the Constitution was ratified,--and one which the Convention did not supply, was in the omission of any express provision for trial by jury in civil cases. Such a provision was supplied by an amendment proposed by the first Congress that assembled under the Constitution, and adopted in 1791; but it was regarded by the framers of the Constitution as inexpedient, on account of the different construction of juries in the different States, and the diversity of their usages with respect to the cases in which trial by jury was used.[352] It is quite possible that, after the Constitution had declared that the jurisdiction of the national tribunals should extend to all cases "in law" affecting certain parties or rights, Congress would not have been at liberty to establish inferior tribunals for the trial of cases "in law" by any other method than according to the course of the common law, which requires that the fact in such cases shall be tried by a jury. But the objection which afterwards prevailed was connected, as we shall presently see, with what was regarded as a dangerous ambiguity in the clause of the Constitution which gave to the Supreme Court its appellate jurisdiction both as to law and fact. The plan of the committee of detail contemplated a supreme tribunal with original jurisdiction over a few of the cases within the judicial power, and appellate jurisdiction over all the other cases enumerated. Inquiry was made in the Convention, whether this appellate jurisdiction was intended to embrace fact as well as law, and to extend to cases of common law as well as to those of equity and admiralty jurisdiction. The answer was given, that such was the intention of the committee, and the jurisdiction of the federal court of appeals, under the Confederation, was referred to as having been so construed. The words "both as to law and fact" were thereupon introduced into the description of the appellate power, by unanimous consent.[353] Various explanations were subsequently given, when the Constitution came before the people, of the force and meaning of these words. The most probable and the most acute of these explanations was that made by Hamilton in the Federalist,[354] which limited the effect of the words, in reference to common law cases, to so much cognizance of the facts involved in a record as is implied in the application of the law to them by the appellate tribunal. But the truth was, the words were of very comprehensive import. While they were used in order to save to the Supreme Court power to revise the facts in equity and admiralty proceedings, they made no distinction, and imposed upon Congress no duty to make a distinction, between cases in equity and admiralty, and cases at common law; and although it might be true, that in some States the facts in all cases were tried by a jury, and that in some cases so tried there ought to be a power to revise the facts, yet it was not conceded that such a power ought to exist over the verdicts of juries in cases of common law jurisdiction. This explanation will serve to show the double purpose of the amendment made in 1791. The people of many of the States required an express guaranty that trial by jury should be preserved in suits at common law, and that the facts once tried by a jury should not be re-examined otherwise than according to the rules of the common law, which have established certain well-defined limits to the power of an appellate tribunal concerning the facts appearing to have been found by a jury.[355] There was still another omission in the report of the committee, of great magnitude. They had included in the judicial power cases arising under the laws of the United States, but they had not embraced cases arising under the Constitution and under treaties. At the same time, the Constitution was to embrace not only the powers of the general government, but also special restrictions upon the powers of the States; and not only the Constitution itself, but the laws made in pursuance of its provisions, and all treaties made under the authority of the United States, were to be the supreme law of the land. This supremacy could only be enforced by some prescribed action of some department of the general government. The idea of a legislative arrest, or _veto_, of State laws supposed to be in conflict with some provision of the national Constitution, or with a treaty or a law of the United States, had been abandoned. The conformity, moreover, of the laws of Congress to the provisions of the Constitution, could only be determined by the judicial power, when drawn into question in a judicial proceeding. The just and successful operation of the Constitution, therefore, required that, by some comprehensive provision, all judicial cases[356] arising under the Constitution, laws, or treaties of the United States--whether the question should grow out of the action of a State legislature, or the action of any department of the general government--should be brought within the cognizance of the national judiciary. This provision was added by the Convention. It completed the due proportions and efficacy of this branch of the judicial power. Trial by jury of all criminal offences (except in cases of impeachment) had been provided for by the committee of detail, and such trial was to be had in the State where the offence had been committed. The Convention, in order to secure the same right of a jury trial in cases where the offence had been committed out of any State, provided that the trial should be at such place or places as the Congress might by law have directed.[357] These additions, with one other which included within the judicial power all cases to which the United States might be party; the transfer of the trial of impeachments to the Senate; and the transfer to the judiciary of controversies between the States respecting jurisdiction or territory, and controversies respecting land titles claimed under the grants of different States,--were the principal changes and improvements made in the plan of the committee. The details of the arrangement will perhaps fail to interest the general reader. Yet I cannot but think that to understand the purpose and operation of this department of the national government would be a very desirable acquisition for any of my readers not already possessed of it; and having completed the description of the mode in which the judicial power was constructed, I shall conclude this part of the subject with a brief statement of its constitutional functions. One of the leading purposes for which this branch of the government was established, was to enable the Constitution to operate upon individuals, by securing their obedience to its commands, and by protecting them in the enjoyment of the rights and privileges which it confers. The government of the United States was eminently intended, among other purposes, to secure certain personal rights, and to exact certain personal duties. The Constitution confers on the general government a few special powers, but it confers them in order that the general government may accomplish for the people of each State the advantages and blessings for which the State governments are presumed to be, and have in fact proved to be, inadequate. It lays upon the governments and people of the States certain restrictions, and it lays them for the protection of the people against an exercise of State power deemed injurious to the general welfare. The government of the United States, therefore, is not only a government which seeks to protect the welfare and happiness of the people who live under it, but it is so constructed as to make its citizens directly and individually its subjects, exacting of them certain duties, and securing to them certain rights. It comes into this relation by reason of its supreme legislative power over certain interests, and the supreme authority of its restrictions upon the powers of the States; and it is enabled to make this relation effectual through its judicial department, which can take cognizance of every duty that the Constitution exacts and of every right that it confers, whenever they have assumed a shape in which judicial power can act upon them. Let us take, as illustrations of this function of the national judiciary, a single instance of the obedience required by the Constitution, and also one of a right which it protects. The Constitution empowers Congress to lay and collect duties; which, when they are laid and incurred, become a debt due from the individual owner of the property on which they are assessed to the general government. Payment, in disputed cases, might have been left to be enforced by executive power; but the Constitution has interposed the judicial department, as the more peaceful agent, which can at once adjudicate between the government and the citizen, and compel the payment of what is found due. Again, the Constitution provides that no State shall pass any law impairing the obligation of contracts. An individual supposing himself to be aggrieved by such a law might have been left to obtain such redress as the judicial or legislative authorities of the State might be disposed to give him; but the Constitution enables him finally to resort to the national judiciary, which has power to relieve him against the operation of the law upon his personal rights, while the law itself may be left upon the statute-book of the State. But while the judicial department of the general government was thus designed to enforce the duties and protect the rights of individuals, it is obvious that, in a system of government where such rights and duties are to be ascertained by the provisions of a fundamental law framed for the express purpose of defining the powers of the general government and of each of its departments, and establishing certain limits to the powers of the States, the mere act of determining the existence of such rights or duties may involve an adjudication upon the question, whether acts of legislative or executive power are in conformity with the requirements of the fundamental law. On the one hand, the judicial department is to see that the legislative authority of the Union does not exact of individuals duties which are not within its prescribed powers, and that no department of the general government encroaches upon the rights of any other, or upon the rights of the States; and, on the other hand, it has to see that the legislative authority of the States does not encroach upon the powers conferred upon the general government, or violate the rights which the Constitution secures to the citizen. All this may be, and constantly is, involved in judicial inquiries into the rights, powers, functions, and duties of private citizens or public officers; and therefore, in order that the judicial power should be able effectually to discharge its functions, it must possess authority, for the purposes of the adjudication, to declare even an act of legislation to be void, which conflicts with any provision of the Constitution. There were great differences of opinion in the Convention upon the expediency of giving to the judges, as expositors of the Constitution, power to declare a law to be void;[358] and undoubtedly such a power, if introduced into some governments, would be legislative in its nature, whether the persons who were to exercise it should be called judges, or be clothed with the functions of a council of revision. But under a limited and written constitution, such a power, when given in the form and exercised in the mode provided for in the Constitution of the United States, is strictly judicial. This is apparent from the question that is to be determined. It arises in a judicial controversy respecting some right asserted by or against an individual; and the matter to be determined is whether an act of legislation, supposed to govern the case as law, is itself in conformity to the supreme law of the Constitution. In a government constituted like ours, this question must be determined by some one of its departments. If it be left with the executive to decide finally what laws shall be executed, because they are consistent with the Constitution, and what laws shall be suspended, because they violate the Constitution, this practical inconvenience may arise, namely, that the decision is made upon the abstract question, before a case to be governed by the law has arisen. If the legislature were empowered to determine, finally, that the laws which they enact are constitutional, the same practical difficulty would exist; and the individual, whose rights or interests may be affected by a law, when put into operation, would have no opportunity to be heard upon what in our form of government is a purely juridical question, on which every citizen should be heard, if he desires it, before the law is enforced in his case. On the other hand, if the final and authoritative determination is postponed until the question arises in the course of a judicial controversy respecting some right or duty or power of an individual who is to be affected by the law, or who acts under it, the question itself is propounded not in the abstract, but in the concrete; not in reference to the bearing of the law upon all possible cases, but to its bearing upon the facts of a single case. In this aspect, the question is of necessity strictly judicial. To withhold from the citizen a right to be heard upon the question which in our jurisprudence is called the constitutionality of a law, when that law is supposed to govern his rights or prescribe his duties, would be as unjust as it would be to deprive him of the right to be heard upon the construction of the law, or upon any other legal question that arises in the cause. The citizen lives under the protection, and is subject to the requirements, of a written fundamental law. No department of the national, or of any State government, can lawfully act otherwise than according to the powers conferred or the restrictions imposed by that instrument. If the citizen believe himself to be aggrieved by some action of either government which he supposes to be in violation of the Constitution, and his complaint admit of judicial investigation, he must be heard upon that question, and it must be adjudicated, or there can be no administration of the laws worthy of the name of justice. It is interesting, therefore, to observe how this function of the judicial power gives to the operation of the government a comparatively high degree of simplicity, exactness, and directness, notwithstanding the refined and complex character of the system which its framers were obliged to establish. To judge of the merits of that system, in this particular, it is necessary to recur again to those alternative measures, to which I have frequently referred, and which lay directly in their path. One of these measures was that of a council of revision, to be charged with the duty of arresting improper laws. Besides the objection which has been already alluded to,--that the question of the conformity of a law to the Constitution would have thus been finally passed upon in the abstract,--such an institution, although theoretically confined to this inquiry, would have become practically a third legislative chamber; for it would inevitably have happened that considerations of expediency would also have found their way into the deliberations of a numerous body appointed to exercise a revisory power over all acts of legislation. There is no mode in which the question of constitutional power to enact a law can be determined, without the influence of considerations of policy or expediency, so effectually, as by confining the final determination to the special operation of the law upon the facts of an individual case. When the tribunal that is to decide this question is, by the very form in which it is required to act, limited to the bearing of the law upon some right or duty of an individual placed in judgment by a record, it is at once relieved of the responsibility, and in a great degree freed from the temptation, of considering the policy of the legislation. If, therefore, it be conceded--as every one will concede--that, whatever public body is specially instituted for the purpose of submitting the acts of the legislature to the test of the Constitution, it should neither possess the power, nor be exposed to the danger, of invading the legislative province, by acting upon motives of expediency, it must be allowed that the framers of the Constitution did wisely in rejecting the artificial, cumbrous, and hazardous project of a council of revision. The plan of such a council was, it is true, much favored, and indeed insisted upon, by some of the wisest men in the Convention. But it was urged at a time when the negative that was to be given to the President had not been settled, and when he had not been made sufficiently independent of the legislature to insure his unfettered employment of the negative that might be given to him. The purpose of the proposed council of revision was to strengthen his hands, by uniting the judges with him in the exercise of the "veto." This would have given to the judges a control both over the question of constitutional power and the question of legislative policy. As to the latter, it became unnecessary, as well as inexpedient, to unite the judges with the President, after he had been clothed with a suitable negative, and after his election had been taken from the legislature; and as to the former question, the final arrangement of the judicial power made it equally unnecessary to form the judges into a council of revision, since, if the President should fail to arrest an unconstitutional law, when presented for his approval, it could be tested in the ordinary course of judicial proceedings after it had gone into operation. But the conformity of laws of Congress to the Constitution was not all that was to be secured. Some prudent and effectual means were to be devised, by which the acts of the State governments could be subjected to the same test. The project of submitting the laws of the States to some department of the general government, while they were in the process of being enacted, or before they could have the form of law, was full of inconvenience and hazard. It could not have been attempted without an injury to State pride, that would have aroused an inextinguishable opposition to the national authority, even if the plan could once have been assented to. Yet there was no other alternative, unless the judicial power of the general government should be so constructed as to enable it to take the same cognizance of a constitutional question, when arising upon the law of a State, that it was to take of such a question when arising upon an act of Congress. The same necessity would exist in the one case, as in the other, for a power within the general government to give practical effect to that supremacy which the Constitution was to claim for itself, for treaties, and for the laws passed in pursuance of its provisions. All the restrictions which the Constitution was to lay upon the powers of the States would be nugatory, if the States themselves were to be the final judges of their meaning and operation. This transcendent power of interpretation and application, so logically necessary, and yet so certain to wound and irritate, if exercised by direct interference, could be wielded, without injurious results, through the agency of judicial forms, by a judicial investigation into personal rights, when affected by the action of a State government, just as it could be in reference to the acts of any department of the national government that could be made the subject of proceedings in a court of justice. The relation of the judicial power to the execution of treaties rests upon the same grounds of paramount necessity. It is not merely for the sake of uniformity of interpretation, that the national judiciary is authorized to decide finally all cases arising under treaties, although uniformity of interpretation is essential to the preservation of the public faith; but it is in order that the treaty shall be executed, by being placed beyond the hazards both of wrong construction and of interested opposition. The memorable instance of the Treaty of Peace, the absolute failure of which in point of execution, before the adoption of the Constitution, has been described in the first volume of this work, presents the great illustration, in our constitutional history, of the only mode in which the supremacy of treaty stipulations as law can be maintained in our system of government. "The United States in Congress assembled," under the Confederation, had the same exclusive authority to make treaties that is now possessed by the President and the Senate under the Constitution, and a treaty was in theory as obligatory then, upon the separate States and their inhabitants, as it is now. But it has been found to be an axiom of universal application in the art of government, that a supremacy which is merely theoretical is no real supremacy. If a stipulation made by the proper authority with a foreign government is to have the force of law, requiring the obedience of individuals and of all public authorities, its execution must be committed to a judiciary acting upon private rights without the hinderance or influence of adverse legislation. There is another branch of the judicial power which illustrates in a striking manner the object embraced in the preamble of the Constitution, where the people of the United States declare it to be their purpose "to establish justice." This is found in the provision for a special jurisdiction over the rights of persons bearing a certain character. Like almost everything else in the Constitution, this feature of the judicial power sprang from a necessity taught by previous and severe experience. Reasoning from the mere nature of such a government as that of the United States, it might seem that the judicatures of the separate States would be sufficient for the administration of justice in all cases in which private rights alone are concerned, and by which no power or interest of the general government, and no provision of the general Constitution, is likely to be affected. But we find in the judicial power of the United States a particular jurisdiction given on account of the mere civil characters of the parties to a controversy; and its existence there is to be accounted for upon other than speculative reasons. From the Declaration of Independence to the day of the ratification of the Constitution, the judicial tribunals of the States had been unable to administer justice to foreigners, to citizens of other States, to foreign governments and their representatives, and to the governments of their sister States, so as to command the confidence and satisfy the reasonable expectations of an enlightened judgment. Hence the necessity for opening the national courts to these various classes of parties, whose different positions may now be briefly considered. In a country of confederated States, each possessing a full power of legislation, it could not but happen--as it did constantly happen in this Union before the adoption of the Constitution--that the determination of controversies between citizens of the State where the adjudication was to be had, and citizens of another State, would be exposed to influences unfavorable to the ends of justice. In truth, one of the parties in such a controversy was virtually an alien, in the tribunal which he was obliged to enter; for although the Articles of Confederation undertook to secure to the free inhabitants of each State all the privileges and immunities of free citizens in the several States, yet it is obvious that the efficacy of such a provision must depend almost wholly upon the spirit of the tribunals, and upon their capacity to give effect to such a declaration of rights, against a course of State policy or the positive enactments of a State code. The chief difficulty of the condition of affairs existing before the Constitution lay not so much in the hazards of a violation of principle through local prejudice, or the superior force of local policy or legislation,--although these influences were always powerful,--as in the fact that, when these influences were likely to be most active, or were most feared, there was no tribunal to which resort could be had, and which was known to be beyond their operation and their reach. The articles of compact between the States had intended to remove from the citizens of the different States the disabilities of practical alienage under which they would have stood in the tribunals of each other. But with that mere declaration those articles stopped. If the litigant saw that the local law was likely to be administered to him as if he were a foreigner, or feared that the scales of justice would not be held with an impartial hand, he could go nowhere else for a decision. This was a great evil; for much of the value of every judicature depends upon the confidence it inspires. There were still other and perhaps stronger reasons for creating an independent jurisdiction, to be resorted to by foreigners, in controversies with citizens of the States. No clause in the Constitution was to make them equal in rights with citizens, and for the very reason of their alienage, therefore, it was necessary to give them access to tribunals organized under the authority of the general government, which would be responsible to foreign powers for the treatment that their subjects might receive in the United States. Ambassadors, too, and other foreign ministers, would not only be aliens, but would possess the character of representatives of their sovereigns; and consuls would be the public agents of their governments, although not bearing the diplomatic character. These functionaries were therefore permitted to resort to the judicial power of the United States; and for the purpose of more effectually protecting the national interests that might be involved in their personal or official relations, original jurisdiction was given to the Supreme Court in all cases affecting them. In addition to these, there were other controversies, which, as we have seen, were included within the judicial power of the United States, on account of the character of the parties; namely, those to which the United States might be a party; those to which a State of the Union might be a party, where the opposite party was another State of the Union, or a citizen of another State of the Union, or a foreign state or its citizens or subjects; and those between citizens of a State of the Union, and foreign states, citizens, or subjects. Finally, controversies between citizens of the same State claiming lands under grants of different States were placed under the same jurisdiction for similar reasons;--because the State tribunals could not be expected to afford that degree of impartiality which the circumstances of these several cases required. There remains only one other branch of the jurisdiction conferred by the Constitution on the tribunals of the United States which it is necessary to notice; namely, the admiralty and maritime jurisdiction. With respect to the criminal jurisdiction in admiralty, in cases of piracies and felonies committed on the high seas, and the prize jurisdiction, the Articles of Confederation had given to the Congress the exclusive power of appointing courts for the trial of the former, and for hearing and finally determining appeals in all cases of capture. Such appeals were taken from the State courts of admiralty,--tribunals which also possessed and exercised a civil jurisdiction corresponding to that of the admiralty in England, but in practice somewhat more extensive. When the Constitution was framed, it was perceived to be expedient, on account of the relation of maritime commerce to the intercourse of the people of the United States with foreign nations, or to the intercourse of the people of different States with each other, to give the whole civil as well as criminal jurisdiction in admiralty, and the entire prize jurisdiction, original as well as appellate, to the government of the Union. This was effected by the comprehensive provision, which gives the judicial power cognizance of "all cases of admiralty and maritime jurisdiction"; expressions which have often been, and are still likely to be, the subject of much forensic controversy with respect to the particular transactions, of a civil nature, intended to be embraced in the jurisdiction, but in reference to which there is nothing in the known proceedings of the Convention, other than what is to be inferred from the language selected, that affords any special evidence of the intention of the framers of the Constitution. FOOTNOTES: [352] Elliot, V. 550. [353] Elliot, V. 483. [354] No. 81. [355] See the seventh Amendment. [356] By "cases arising under the Constitution," &c. the framers of that instrument did not mean all cases in which any department of the government might have occasion to act under provisions of the Constitution, but all cases _of a judicial nature_; that is, cases which, having assumed the form of judicial proceedings between party and party, involve the construction or operation of the Constitution of the United States. Elliot, V. 483. [357] Elliot, V. 484. Constitution, Art. III. § 2, clause 3. [358] Elliot, V. 429. CHAPTER XV. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--EFFECT OF RECORDS.--INTER-STATE PRIVILEGES.--FUGITIVES FROM JUSTICE AND FROM SERVICE. We now come to a class of provisions designed to place the people of the separate States in more intimate relations with each other, by removing, in some degree, the consequences that would otherwise flow from their distinct and independent jurisdictions. This was to be done by causing the rights and benefits resulting from the laws of each State to be, for some purposes, respected in every other State. In other words, by the establishment and effect of certain exceptions, the general rule which absolves an independent government from any obligation to regard the law, the authority, or the policy of another government was, for some purposes, to be obviated between the States of the American Union. To some extent, this had been attempted by the Articles of Confederation, by providing,--first, that the free inhabitants of each of the States (paupers, vagabonds, and fugitives from justice excepted) should be entitled to all privileges and immunities of free citizens in the several States; and that the people of each State should have free ingress and regress to and from any other State, and the same privileges of trade and commerce as its inhabitants;--secondly, that fugitives from justice charged with certain enumerated crimes, and escaping from one State into another, should be given up, on demand of the executive of the State from which they had escaped;--and thirdly, that full faith and credit should be given in each State to the records, acts, and judicial proceedings of the courts and magistrates of every other State. The Confederation, however, was a "firm league of friendship with each other," entered into by separate States, and the object of the provisions above cited was "the better to secure and perpetuate mutual friendship and intercourse among the people" of those States. One of the purposes of the Constitution, on the other hand, was "to form a more perfect Union"; and we are therefore to expect to find its framers enlarging and increasing the scope of these provisions, and giving to them greater precision and vigor. We shall see, also, that they made a very important addition to their number. The first thing that was done was to make the language of the Confederation respecting the privileges of general citizenship somewhat more precise. The Articles of Confederation had made "the free _inhabitants_ of each State," with certain exceptions, entitled to the privileges and immunities of "free _citizens_ in the several States."[359] It is probable that these two expressions were intended to be used in the same sense, and that by "free inhabitants" of a State was meant its "free citizens." The framers of the Constitution substituted the latter expression for the former, and thus designated more accurately the persons who are to enjoy the privileges and immunities of free citizens in other States besides their own. In the next place, while the Articles of Confederation declared that full faith should be given in each State to the acts, records, and judicial proceedings of every other State, they neither prescribed the mode in which the proof was to be made, nor the effect when it had been made. The committee of detail, in preparing the first draft of the Constitution, merely adopted the naked declaration of the articles. The Convention added to it the further provision, which enabled Congress to prescribe by general laws the manner in which such acts, records, and proceedings shall be proved, and the effect to be given to them when proved.[360] With respect to fugitives from justice, the Articles of Confederation had specified persons "charged with treason, felony, or other high misdemeanor in any State," as those who were to be given up by the States to each other. For the purpose of avoiding the ambiguity of this language, the provision was made to embrace all other crimes, as well as treason and felony.[361] Besides correcting and enlarging these provisions, the framers of the Constitution introduced into the system of the Union a special feature, which, in the relations _of the States to each other_, was then entirely novel, although not without precedent. I refer, of course, to the clause requiring the extradition of "fugitives from service," who have escaped from one State into another. In describing the compromises of the Constitution relating to slavery, I have not placed this provision among them, because it was not a part of the arrangement by which certain powers were conceded to the Union by one class of States, in consideration of certain concessions made by another class. It is a provision standing by itself, in respect to its origin, about which there is some popular misapprehension. Its history is as follows. In many of the discussions that had taken place, in preparing the outline of the government that was sent to the committee of detail, a good deal of jealousy had been felt and expressed by some of the Southern members, not only with regard to the relative weight of their States in the representative system, but also with respect to the security of their slave property. Slavery, although it had existed in all of the States, and although there still remained in all of them excepting Massachusetts some persons of the African race still held in that condition, was likely soon to disappear from the States of New Hampshire, Rhode Island, Connecticut, New York, and Pennsylvania, under changes that would be introduced by their constitutions or by statutory provision. In the whole of New England, therefore, and in nearly all of the Middle States excepting Maryland, if the principles of the common law and of the law of nations were to be applied to such cases, the relation of master and slave, existing under the law of another State, could not be recognized, and there could be no means of enforcing a return to the jurisdiction which gave to the master a right to the custody and services of the slave. At the same time, it was apparent that, in the five States of Maryland, Virginia, North Carolina, South Carolina, and Georgia, slavery would not only be likely to continue for a very long period of time, but that this form of labor constituted, and would be likely long to constitute, a necessary part of their social system. The theory on which the previous Union had been framed, and on which the new Union now intended to be consummated was expressly to be founded, was, that the domestic institutions of the States were exclusively matters of State jurisdiction. But if a relation between persons, existing by the law of a particular State, was to be broken up by an escape into another State, by reason of the fact that such a relation was unknown to or prohibited by the law of the place to which the party had fled, it was obvious that this theory of the Union would be of very little practical value to the States in which such a relation was to exist, and to be one of great importance. If the territory of every State in which this relation was not to be recognized, were to be made an asylum for fugitives, the right of the master to the services of the slave would be wholly insecure. It was in reference to this anticipated condition of things, that General Pinckney of South Carolina, at the time when the principles that were to be the basis of the Constitution were sent to the committee of detail,[362] gave notice, that, unless some provision should be inserted in their report to prevent this consequential emancipation, he should vote against the Constitution. Considering the position and influence of this gentleman, his declaration was equivalent to a notice that, without such a provision, the Constitution would not be accepted by the State which he represented. Still, the committee of detail omitted to make any such special provision in their report of a Constitution, and inserted only a general article that the _citizens_ of each State should be entitled to all the privileges and immunities of citizens in the several States.[363] General Pinckney was not satisfied with this, and renewed his demand for a provision "in favor of property in slaves."[364] But the article was adopted, South Carolina voting against it, and the vote of Georgia being divided. As soon, however, as the next article was taken up, which required the surrender of fugitives from justice escaping from one State into another, the South Carolina members moved to require "fugitive slaves and servants to be delivered up, like criminals."[365] Objection was made, that this would require the executive of the State to do it at the public expense,[366] and that there was no more propriety in the public seizing and surrendering a slave or a servant, than a horse.[367] The proposition was then withdrawn, in order that a particular provision might be framed, apart from the article requiring the surrender of fugitives from justice. That article was then adopted without opposition.[368] For a provision respecting fugitives from service, the movers had two remarkable precedents to which they could resort, and which had settled the correctness of the principle involved. Negro slavery, as well as other forms of service, had existed in the New England Colonies at a very early period. In 1643, the four Colonies of Massachusetts Bay, Plymouth, Connecticut, and New Haven had formed a confederation, in which, among other things, they had mutually stipulated with each other for the restoration of runaway "servants"; and there is indubitable evidence, that African slaves, as well as other persons in servitude, were included in this provision.[369] The other precedent was found in the Ordinance which had just been adopted by Congress for the settlement and government of the Territory northwest of the river Ohio; in which, when legislating for the perpetual exclusion of "slavery or involuntary servitude," a similar provision was made for the surrender of persons escaping into the Territory, "from whom labor or service is lawfully claimed in any one of the original States." In making this provision, the early colonists of New England, and the Congress of the Confederation, had acted upon a principle directly opposite to the objection that was raised in the formation of the Constitution of the United States. When it was said in the Convention, that the public authority ought no more to interfere and surrender a fugitive slave or servant than a horse, it was forgotten that, by the principles of the common law and the comity of nations, not only is property in movable things recognized by civilized states, but a remedy is afforded for restitution. But in the case of a fugitive person, from whom, by the law of the community from which he escapes, service is due to another, the right to the service is not recognized by the common law or the law of nations, and no means exist of enforcing the duties of the relation. If the case is to be met at all, therefore, it can only be by a special provision, in the nature of a treaty, which will so far admit the relation and the claim of service, as to make them the foundation of a right to restore the individual to the jurisdiction of that law which recognizes and enforces its duties. This was precisely what was done by the New England Confederation of 1643, and the Ordinance of 1787; and it was what was now proposed to be done by the Constitution of the United States. It was regarded at the time by the Southern States as absolutely necessary to secure to them their right of exclusive control over the question of emancipation,[370] and it was adopted in the Convention by unanimous consent,[371] for the express purpose of protecting a right that would otherwise have been without a satisfactory security. A proper understanding of the grounds of this somewhat peculiar provision is quite important. The publicists of Christendom are universally agreed, that independent nations are under no positive obligation to support the institutions, or to enforce the municipal laws, of each other. So far does this negative principle extend, that the general law of nations does not even require the extradition of fugitive criminals, who have escaped from one country into another. If compacts are made for this purpose, they rest entirely upon comity, and upon those considerations of public policy which make it expedient to expel from our own borders those who have violated the great laws on which the welfare of society depends; and such compacts are usually limited to those offences which imply great moral as well as civil guilt. The general rule is, that a nation is not obliged to surrender those who have taken sanctuary in its dominions. At the same time, every political state has an undoubted right to forbid the entry into its territories of any person whose presence may injure its welfare or thwart its policy. No foreigner, whether he comes as a fugitive escaping from the violated laws of another country, or comes for the innocent purposes of travel or residence, can demand a sanctuary as a matter of right. Whether he is to remain, or not to remain, depends entirely upon the discretion of the state to which he has resorted;--a discretion that is regulated by a general principle, among Christian nations, while at the same time the general principle is subject to such exceptions as the national interest may require to be established. Slavery, or involuntary servitude, being considered by public law as contrary to natural right, and being a relation that depends wholly on municipal law, falls entirely within the principle which relieves independent nations of the obligation to support or to enforce each other's laws. It has not, therefore, been customary for states which have no peculiar connection, to surrender fugitives from that relation, or to do anything to enforce its duties. But such fugitives stand upon a precise equality with all other strangers who seek to enter a society of which they are not members. If the welfare of the society demands their exclusion, or if it may be promoted by a stipulation that they shall be taken back to the place where their service is lawfully due, the right to exclude or to surrender them is perfect; for every political society has the moral power, and is under a moral obligation, to provide for its own welfare. If such stipulations have not usually been made among independent nations, their absence may prove that the public interest has not required them, but it does not prove the want of a right to make them. Each of the American States, when its people adopted the national Constitution, possessed the right that belongs to every political society, of determining what persons should be permitted to enter its territories. Each of them had a complete right to judge for itself how far it would go, in recognizing or aiding the laws or institutions of the other States. It is obvious, moreover, that States which are in general independent of each other, but which propose to enter into national relations with each other under a common government, for certain great political and social ends, may have reasons for giving a particular effect to each other's laws, or for sustaining each other's institutions, which do not operate with societies not standing in such a relation; and that these reasons may be of a character so grave and important, as to amount to a moral obligation. Thus independent and disconnected nations are ordinarily under no obligation to support or guarantee each other's forms of government. But the American States, in entering into the new Union under their national Constitution, found that a republican form of government in every State was a thing so essential to the welfare and safety of all of them, as to make it both a necessity and a duty for all to guarantee that form of government to each other. In the same way, although nations in general do not recognize the relation of master and servant prevailing by the law of another country, so far as to stipulate for the surrender of persons escaping from that relation, the American States found themselves surrounded by circumstances so imperative, as to make it both a necessity and a duty to make with each other that stipulation. These circumstances I shall now briefly state. I have already referred to all the known proceedings in the Convention on this subject, and have stated to what extent those proceedings justify the opinion that the Constitution could not have been formed without this provision.[372] But there is higher evidence both of its necessity and its propriety than anything that may have been said by individuals or delegations. The States were about to establish a more perfect Union, under a peculiar form of national government, the effect of which would necessarily bring them into closer relations with each other, multiplying greatly the means and opportunities of intercourse, and enabling them to act on each other's internal condition with an influence that would be nearly irresistible, unless it should be arrested by constitutional barriers. Among the features of their internal condition, the relation of master and servant, or the local institution of servitude, was one that must either be placed under national cognizance, or be left exclusively to the local authority of each State. There was no middle or debatable ground, which it could with safety be suffered to occupy. The African race, although scattered throughout all of the States, was placed in very different circumstances in different parts of the country. There could have been no national legislation with respect to that race, concerning the time or mode of emancipation, the tenure of the master's right, or the treatment of the slave, that would not have been forced to adapt itself to an almost endless variety of circumstances in different localities. At the same time, it was one of the fundamental principles on which the whole Constitution was proposed to be founded, that, where the national authority could not furnish a uniform rule, its legislative power was not to extend. Whatever required one rule in Massachusetts and another rule in Virginia, for the exigencies of society, was necessarily left to the separate authority of the respective States. It was upon matters on which the States could not legislate alike, but on which the national power could furnish a safe and advantageous uniform rule, that the want of a national Constitution was felt, and for these alone was its legislative power to be created. We may suppose, then, that the framers of the Constitution had sought to bring the relation of master and servant, or the condition of the African race, within the States, under the cognizance of national legislation; and we may imagine, for the purposes of the argument, that consent had been given by every one of the States. The power must have remained dormant, or its exercise would have been positively mischievous. It never could have been exercised beneficially for either of the two races; not only because it could not have followed any uniform system, but because the confusions and jealousies which must have attended any attempt to legislate specially, must either have totally obstructed the power, or must have made its exercise absolutely pernicious. These consequences, which the least reflection will reveal, may serve to show us, far better than any declarations or debates, why the framers of the Constitution studiously avoided acquiring any power over the institution of slavery in the States;--why the representatives of one class of States could not have consented to give, and the representatives of another class could never have desired to obtain, such a power for the national Constitution. But it may be asked,--and the question is often prompted by a feeling of pity towards individual cases of hardship,--Why did not the framers of the Constitution content themselves with the negative position, which leaves the institution of slavery to the uncontrolled direction of every State in which it is found? Why did they establish a rule that obtains nowhere else among distinct communities, and require that the fugitive from this relation of a purely local character, who has committed no crime, and has fled only to acquire a natural liberty, shall be restored to the dominion of the local law which declares him to be a slave? Why should the States which had abolished, or were about to abolish, this relation, consent to the use of force within their own territories, for the purpose of upholding the relation in other States? These questions are pertinent to the estimate which mankind may be called upon to form concerning the provisions of our national Constitution, and they admit of an answer. The most material answer to them is, that, without some stipulation on the part of the States where slavery was not to exist that their free territory should not be made the means of a practical interference with the relation in other States, the mere concession of the abstract principle that slavery was to be exclusively under the control of State authority would have been of no real value to any one of the States, or to any of their inhabitants, of either race. But some active security for this principle was of the utmost importance, not merely as a concession which would secure the formation of the new Union, but as a means to secure the beneficent working of the Constitution after its acceptance had been obtained. It was as important to the black race as it was to the whites; for it is not to be doubted, that the continuance of a division into separate States, and the firm maintenance of an exclusive local authority over the domestic relations of their inhabitants, have been the cause, under the Divine Providence, of a far higher civilization, and consequently of a far better condition of the subjected race, than could have been attained in the same localities if the States had been in all respects resolved into one consolidated republic. Let the reader spread before him the map of the thirteen republics of 1787, and mark upon each of them the relative numbers of their white and colored inhabitants, and then efface the boundaries of the States. Let him imagine all legislative power, all the superintending care of government, withdrawn into a central authority, whose seat must have been somewhere near the centre of the free white population. Let him observe how that population must have tended away from the regions where the labor of slaves would be most productive, and how dense the slave populations must there have become. All that now constitutes the pride of men in their separate State, that induces to residence and makes it the home of their affections, would have passed away; and at the same time, vast tracts of wonderful fertility must have retained the African, and with him scarcely any white man but the speculator, the overseer, and a solitary tradesman. Into such regions as those, the national authority could not have penetrated with success. Legislation would have wanted the necessary machinery, by which to reach and elevate the condition of society at such remote extremities from the centre. A more than Russian despotism would not have sufficed to carry the authority of government and the restraints of law into communities so depopulated of freemen, so filled with slaves, and so far removed from the seat of power. But now let the same map be again unfolded, with all the lines that mark the distinct sovereignties of the States. In each of them there is a complete and efficient government. Each has its history, unbroken since the first settlers laid the foundations of a State. In each there is a centre of civilization, a source of law, and the public conscience of an organized self-governing community. Each of them can act, and does act, upon the condition of the African race within its own limits, according to its own judgment of the exigencies of the case; and it is a fact capable of easy verification, that, in the progress of three quarters of a century, this local power has effected for that race what no national legislature could have accomplished. For, if we look back to the period when the Constitution of the United States was adopted, and suppose it to have acquired the means of acting on the institution of slavery within the States, we shall see that, if the national authority had approached the subject of emancipation at all, it must have applied the same rule in South Carolina as in Pennsylvania, and at the same time. But the emancipation of the half a million of slaves held in widely different proportions in the various subdivisions of the country, or of their still more numerous descendants, by a single and uniform measure comprehending them all, would at no time since the Constitution was adopted have been a merciful or defensible act. Nothing could have remained, therefore, for the national power to do, but to attempt such legislation as might tend to regulate and ameliorate the condition of servitude; and such legislation must have been wholly ineffectual, and would soon have been abandoned, or been superseded by schemes that must have increased the evils which they aimed to remove. In thus placing a high value upon the exclusive power of the separate States over this the most delicate and embarrassing of all the social problems involved in their destiny, I have not forgotten that, since the adoption of the national Constitution, nine slave States have been added to the Union, and that the slaves have increased to more than three millions. This increase, however, has not been in a greater _ratio_ than that of the white population, nor greater than it must have been under any form of polity which the thirteen original States might have seen fit to adopt in the year 1787, unless that polity had had a direct tendency to restrain the growth of the country, and to prevent the settlement of new regions.[373] As it is, it is to be remembered that, wherever the institution of slavery has gone, there has gone with it the system of State government, the power and organization of a distinct community, and consequently a better civilization than could have been the lot of distant provinces of a great empire, or distant territories of a consolidated republic. These considerations will account for that apparent inconsistency which has sometimes attracted the attention of those who view the institutions of the United States from a distance, and without a sufficient knowledge of the circumstances in which they originated. It has been occasionally made a matter of reproach, that a people who fought for political and personal freedom, who proclaimed in their most solemn papers the natural rights of man, and who proceeded to form a constitution of government that would best secure the blessings of liberty to themselves and their posterity, should have left in their borders certain men from whom those rights and blessings are withheld. But in truth the condition of the African slaves was neither forgotten nor disregarded by the generation who established the Constitution of the United States; and it was dealt with in the best and the only mode consistent with the facts and with their welfare. The Constitution of the United States does not purport to secure the blessings of liberty to all men within the limits of the Union, but to the people who established it, and their posterity. It could not have done more; for the slaveholding States could not, and ought not, to have entered a Union which would have conferred freedom upon men incapable of receiving it, or which would have required those States to surrender to a central and insufficient power that trust of custody and care which, in the providence of God, had been cast upon their more effectual local authority. The reproach to which they would have been justly liable would have been that which would have followed a desertion of the duty they owed to those who could not have cared for themselves, and whose fate would have been made infinitely worse by a consolidation of all government into a single community, or by an attempt to extend the principles of liberty to all men. The case is reduced, therefore, to the single question, whether the people of the United States should have foregone the blessings of a free republican government, because they were obliged by circumstances to limit the application of the maxims of liberty on which it rests. On this question, they may challenge the judgment of the world. FOOTNOTES: [359] See and compare Art. IV. of the Confederation and Art. IV. § 2 of the Constitution. [360] So far as the proceedings in the Convention are to be regarded as a guide to construction, it appears clearly that the clause which empowers Congress to "prescribe the manner in which such acts, records, and proceedings shall be proved, _and the effect thereof_," was intended to give a power to declare the effect of the acts, records, and judicial proceedings of any State, when offered in evidence in another State, as well as to prescribe the mode of proving them. See Elliot, V. 487, 488, 503, 504. See also a learned discussion on this clause in Story's Commentaries, §§ 1302-1313. [361] Elliot, V. 487. [362] July 23d. Elliot, V. 357. [363] Art. XIV. of the report of the committee of detail. [364] These are the words of Mr. Madison's Minutes. Elliot, V. 487. This was on the 26th of August. [365] Madison, _ut supra_. The motion was made by Butler and Pinckney, according to Mr. Madison. [366] By Wilson. [367] By Sherman. [368] Madison, _ut supra_. August 28. [369] The reader who will consult a paper in the fourth volume of the Collections of the Massachusetts Historical Society (p. 194), written by Dr. Belknap, in 1795, will find that slavery, in the sense in which the term is now commonly understood, existed in Massachusetts Bay as early as 1630. The proof of it consists,--1. In the provisions of the colonial laws and ordinances, which recognize and regulate a relation very different from that of service for hire. On this subject, the early colonists of Massachusetts held and practised the law of Moses. They regarded it as lawful to _buy_ and _sell_ "slaves taken in lawful war," or reduced to servitude by judicial sentence, and placed them under the same privileges as those given by the Mosaic law. But they punished man-_stealing_ capitally, re-enacting expressly the 16th verse of the 21st chapter of Exodus; and when there were any negroes in their jurisdiction who had been stolen, or "fraudulently" acquired in Africa, they endeavored to send them back again. 2. In the actual presence of negro slaves, brought from Africa, who had been "lawfully" acquired, that is, by fair purchase from those who held them as prisoners of war. These existed to some extent in the Colony in 1638, and were numerous in 1673; and of course were included in all the legislation of that period respecting service, being sometimes described as "slaves," and sometimes by the more general and comprehensive term of "servants."--Slavery by judicial sentence was inflicted for no higher crimes than theft and burglary. Thus at a Quarter Court holden at Boston the 4th day of the 10th month, 1638, "John Hazlewood being found guilty of severall thefts and breaking into severall houses, was censured to be severely whipped and delivered up a _slave_ to whom the Court shall appoint." (Shurtleff's Edition of Records of Massachusetts, I. 246.) Many of the Indians taken prisoners in King Philip's war, who had formerly submitted to the Colonial government and had been called "Praying Indians" from their supposed conversion to Christianity, were adjudged guilty of "rebellion," and were sold into slavery in foreign countries. Dr. Belknap says that some of them found their way back again, and took a severe revenge on the English in a subsequent war. (Hist. Soc. Coll. _ut supra_.) [370] Mr. Madison stated in the Convention of Virginia in which the Constitution was ratified, that "this clause was expressly inserted, to enable owners of slaves to reclaim them." (Elliot's Debates, III. 453.) [371] August 29. Elliot, V. 492. [372] I am not aware of any more positive evidence than that above given in the text, that this clause of the Constitution was expressly made in the Convention a condition of assent by any of the States. [373] In 1790, the slaves numbered 697,897, and the whites 3,172,464. In 1850, the slaves had increased to 3,204,313, and the whites to 19,533,068. CHAPTER XVI. REPORT OF THE COMMITTEE OF DETAIL, CONCLUDED.--GUARANTY OF REPUBLICAN GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO SUPPORT THE CONSTITUTION.--MODE OF AMENDMENT.--RATIFICATION AND ESTABLISHMENT OF THE CONSTITUTION.--SIGNING BY THE MEMBERS OF THE CONVENTION. The power and duty of the United States to guarantee a republican form of government to each State, and to protect each State against invasion and domestic violence, had been declared by a resolution, the general purpose of which has been already described. It should be said here, however, that the objects of such a provision were two; first, to prevent the establishment in any State of any form of government not essentially republican in its character, whether by the action of a minority or of a majority of the inhabitants; second, to protect the State against invasion from without, and against every form of domestic violence.[374] When the committee of detail came to give effect to the resolution, they prepared an article, which made it the duty of the United States to guarantee to each State a republican form of government, and to protect each State against invasion, without any application from its authorities; and to protect the State against domestic violence, on the application of its legislature.[375] No change was made by the Convention in the substance of this article, excepting to provide that the application, in a case of domestic violence, may be made by the executive of the State, when the legislature cannot be convened.[376] It now remains for me to state what appears to have been the meaning of the framers of the Constitution, embraced in these provisions. It is apparent, then, from all the proceedings and discussions on this subject, that, by guaranteeing a republican form of government, it was not intended to maintain the existing constitutions of the States against all changes. This would have been to exercise a control over the sovereignty of the people of a State, inconsistent with the nature and purposes of the Union. The people must be left entirely free to change their fundamental law, at their own pleasure, subject only to the condition, that they continue the republican form of government. The question arises then, What is that form? Does it imply the existence of some organic law, establishing the departments of a government, and prescribing their powers, or does it admit of a form of the body politic under which the public will may be declared from time to time, either with or without the agency of any established organs or representatives? Is it competent to a State to abolish altogether that body of its fundamental law which we call its Constitution, and to proceed as a mere democracy, enacting, expounding, and executing laws by the direct action of the people, and without the intervention of any representative system constituting what is known as a government? The Constitution of the United States assumes, in so many of its provisions, that the States will possess organized governments, in which legislative, executive, and judicial departments will be known and established, that it must be taken for granted that the existence of such agents of the public will is a necessary feature of a State government, within the meaning of this clause. No State could participate in the government of the Union, without at least two of these agents, namely, a legislature and an executive; for the people of a State, acting in their primary capacity, could not appoint a Senator of the United States; nor fill a vacancy in the office of Senator; nor appoint Electors of the President of the United States, without the previous designation by a legislature of the mode in which such Electors were to be chosen; nor apply to the government of the United States to protect them against "domestic violence," through any other agent than the legislature or the executive of the State. It is manifest, therefore, that each State must have a government, containing at least these distinct departments; and whether this government is organized periodically, under mere laws perpetually re-enacted, and subject to perpetual changes without reference to forms, or under standing and fundamental laws, changeable only in a prescribed form, and being so far what is called a constitution, it is apparent that there must be a "form of government" possessed of these distinct agencies. There must be, moreover, not only this "form of government," but it must be a "republican" form; and in order to determine the sense in which this term qualifies the nature of the government in other respects besides those already referred to, it is necessary to take into view the previous history of American political institutions, because that history shows what is meant, in the American sense, by a "republican" government. History, then, establishes the fact, that, in the American system of government, the people are regarded as the sole original source of all political authority; that all legitimate government must rest upon their will. But it also teaches that the will of the people is to be exercised through representative forms. For even in the exercise of original suffrage, which has never been universal in any of the States of the Union, and in the bestowal of power upon particular organs, those who are regarded as competent to express the will of society are, in that expression, deemed to represent all its members; and those who, in the distribution of political functions, exercise the sovereignty of the people, so far as it has been thus imparted to them, exercise a representative function, to which they are appointed, directly or indirectly, by popular suffrage, that may be more or less restricted, according to the public will. It may be said, therefore, with strictness, that in the American system a republican government is one based on the right of the people to govern themselves, but requiring that right to be exercised through public organs of a representative character; and these organs constitute the government. How much or how little power shall be imparted to this government, what restrictions shall be imposed upon it, and what the precise functions of its several departments shall be, with respect to the internal concerns of the State, the Constitution of the United States leaves untouched, except in a few particulars. It merely declares that a government having the essential characteristics of an American republican system shall be guaranteed by the United States; that is to say, that no other shall be permitted to be established. The provision by which the State is protected against domestic violence was necessary to complete the republican character of the system intended to be upheld. The Constitution of the United States assumes that the governments of the States, existing when it goes into operation, are rightfully in the exercise of the authority of the State, and will so continue until they are changed. But it means that no change shall be made by force, by public commotion, or by setting aside the authority of the existing government. It recognizes the right of that government to be protected against domestic violence; in which expression is to be included every species of force directed against that government, excepting the will of the people operating to change it through the forms of constitutional action. The next topic on which the Convention was required to act was the question whether the Constitution should be made capable of amendment, and in what mode amendments were to be proposed and adopted. The Confederation, from its nature as a league between States otherwise independent of each other, was made incapable of alteration excepting by the unanimous consent of the States. It affords a striking illustration of the different character of the government established by the Constitution, that a mode was devised by which changes in the organic law could become obligatory upon all the States, by the action of a less number than the whole. The frame of government which the members of the Convention were endeavoring to establish, if once adopted, was to endure, as a continuing power, indefinitely; and that it might, as far as possible, be placed beyond the danger of destruction, it was necessary to make it subject to such peaceful changes as experience might render proper, and which, by being made capable of introduction by the organic law itself, would preserve the identity of the government. The existence and operation of a prescribed method of changing particular features of a government mark the line between amendment and revolution, and render a resort to the latter, for the purpose of melioration or reform, save in extreme cases of oppression, unnecessary. According to our American theory of government, revolution and amendment both rest upon the doctrine, that the people are the source of all political power, and each of them is the exercise of an ultimate right. But this right is exercised, in the process of amendment, in a prescribed form, which preserves the continuity of the existing government, and changes only such of its fundamental rules as require revision, without the destruction of any public or private rights that may have become vested under the former rule. Revolution, on the contrary, proceeds without form, is the violent disruption of the obligations resting on the authority of the former government, and terminates its existence often, without saving any of the rights which may have grown up under it. The question, therefore, whether the Constitution should be made capable of amendment, was identical with the question whether some mode of amending it should be prescribed in the instrument itself, since, without an ascertained and limited method of proceeding, all change becomes, in effect, revolution; and this was accordingly, in substance, the same as the question whether revolution should be the only method by which the American people could ever modify their system of government, when in the progress of time changes might become indispensable. It was originally proposed in the Convention, that provision should be made for amending the Constitution, without requiring the assent of the national legislature.[377] But this was justly regarded as a very important question, and the Convention came to no other decision, when the committee of detail were instructed, than to declare that provision ought to be made for amending the Constitution whenever it should seem necessary.[378] The mode selected by the committee, and embraced in the first draft of the instrument, was to have a convention called by the Congress, when applied for by the legislatures of two thirds of the States; but they did not declare whether the legislatures were to propose amendments and the convention was to adopt them, or whether the convention was both to propose and adopt them, or only to propose them for adoption by some other body or bodies not specified. There lay, therefore, at the basis of this whole subject, the very grave question whether there should ever be another national convention, to act in any manner upon or in reference to the national Constitution, after its adoption, and if so, what its functions and authority were to be. There would follow, also, the further question, whether this should be the sole method in which the Constitution should be made capable of amendment. Several reasons concurred to render it highly inexpedient to make a resort to a convention the sole method of reaching amendments, and we can now see that the decision that was made on this subject was a wise one. It was a rare combination of circumstances that gave to the first national Convention its success. The war of the Revolution, and the exigencies which it caused, had produced a class of men, possessing an influence, as well as qualifications for the duty assigned to them, that would not be likely to be again witnessed. Of these men, Washington was the head; and no second Washington could be looked for. The peculiar crisis, too, occasioned by the total failure of the Confederation, notwithstanding the apparent fitness and actual necessity of that government at the time of its formation, could never occur again. There were, moreover, but thirteen States in the confederacy, nearly all of which dated their settlement and their existence as political communities from about the same period, and all had passed through the same revolutionary history. But the number of the States was evidently destined to be greatly increased, and the new members of the Union would also be likely to be very different in character from the old States. It was not probable, therefore, that the time would ever arrive when the people of the United States would feel that another national convention, for the purpose of acting on the national Constitution, would be safe or practicable. Still, it would not have been proper to have excluded the possibility of a resort to this method of amendment; since the national legislature might itself be interested to perpetuate abuses springing from defects in the Constitution, and to incur the hazards attending a convention might become a far less evil than the continuance of such abuses, or the failure to make the necessary reforms. But it was indispensable that the precise functions and authority of such a convention should be defined, lest its action might result in revolution. The method of amendment proposed by the committee of detail did not enable the Congress to call a convention on their own motion, and did not prescribe the action of such a body, or provide any mode in which the amendments proposed by it should be adopted. Hamilton and Madison both opposed this plan;--the former, because it was inadequate, and because he considered it desirable that a much easier method should be devised for remedying the defects that would become apparent in the new system; the latter, on account of the vagueness of the plan itself. Accordingly, Mr. Madison brought forward, as a substitute, a method of proceeding, which, with some modifications, became what is now the fifth article of the Constitution; namely, that the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments; or, on the application of the legislatures of two thirds of the States, shall call a convention for proposing amendments. In either case, the amendments proposed are to become valid as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths of the States, as the one or the other mode of ratification may be proposed by the Congress.[379] But when this provision had been agreed upon, the grave question arose, whether the power of amendment was to be subjected to any limitations. There were two objects, in respect to which, as we have more than once had occasion to see, different classes of the States felt great jealousy. One of them had been covered by the stipulations that the States should not be prohibited before the year 1808 from admitting further importations of slaves, and that no capitation or other direct tax should be laid unless in proportion to the census or enumeration of the inhabitants of the States, in which three fifths only of the slaves were included.[380] The other was the equality of representation in the Senate, so long and at length so successfully contended for by the smaller States.[381] At the instance of Mr. Rutledge of South Carolina, a proviso was added, which forbade any amendment before the year 1808 affecting in any manner the clauses relating to the slave-trade and the capitation or other direct taxes.[382] This proviso having now become inoperative, those clauses are, like others, subject to amendment. At the instance of Mr. Sherman of Connecticut, a restriction that is of perpetual force was placed upon the power of amendment, which prevents each State from being deprived of its equality of representation in the Senate, without its consent.[383] The oath or affirmation to support the Constitution was provided for by the committee of detail, in accordance with the resolution directing that it should be taken by the members of both houses of Congress and of the State legislatures, and by all executive and judicial officers of the United States and of the several States; and for the purpose of for ever preventing any connection between church and state, and any scrutiny into men's religious opinions, the Convention unanimously added the clause, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."[384] We are next to ascertain in what mode the Constitution, which had thus been framed, was to provide for its own establishment and authority. There is a great difference between the importance of this question, as it presented itself to the framers of the Constitution, and its importance to this or any succeeding generation. To us it is chiefly interesting because it displays the basis of a government which has been established for seventy years over the thirteen original States of the confederacy, and is now acknowledged by more than twice the number of those original States. To those who made the Constitution, and to the people who were to vote upon it and to put it into operation, the mode in which it was to become the organic law of the Union was a topic of serious import and delicacy. It involved the questions, of what course would be politic with reference to the people; of what would be practicable; of the initiation of the new government without force; of its establishment on a firm, just, and legitimate authority; and of its right to supersede the Confederation, without a breach of faith toward the members of that body by whose inhabitants the new system might be rejected. The Convention had already decided that the Constitution must be ratified by the people of the States; but a difficulty had all along existed, in the opinions held by some of the members respecting the compact then subsisting between the States, which they regarded as indissoluble but by the consent of all the parties to it. The resolution, which the committee of detail were instructed to carry out, had declared that the new plan of government should first be submitted to the approbation of the existing Congress, and then to assemblies of representatives to be recommended by the State legislatures and to be expressly chosen by the people to consider and decide upon it. But this direction embraced no decision of the question, whether the ratification by the people of a less number than all the States should be sufficient for putting the government into operation. If the people of a smaller number than the whole of the States could establish this form of government, what was to be its future relation to the States which might reject or refuse to consider it? Could any number of the States thus withdraw themselves from the Confederation, and establish for themselves a new general government, and could that government have any authority over the rest? Various and widely opposite theories were maintained. One opinion was, that all the States must accept the Constitution, or it would be a nullity;--another, that a majority of the States might establish it, and so bind the minority, upon the principle that the Union was a society subject to the control of the greater part of its members;--still another, that the States which might ratify it would bind themselves, but no one else. The truth with regard to these questions, which perplexed the minds of men in that assembly somewhat in proportion to their acuteness and their proneness to metaphysical speculations, was in reality not very far off. The Articles of Confederation had certainly declared that no alteration should be made in any of them, unless first proposed by the Congress, and afterwards unanimously agreed to by the State legislatures. But in two very important particulars the Convention had already passed beyond what could be deemed an alteration of those Articles. They had prepared and were about to propose a system of government that would not merely alter, but would abolish and supersede, the Confederation; and they had determined to obtain, what they regarded as a legitimate authority for this purpose, the consent of the people of the States, by whose will the State governments existed, from whom those governments derived their authority to enter into the compact of the Confederation, and whose sovereign right to ameliorate their own political condition could not be disputed. This system they intended should be offered to all. The refusal of some States to accept it could not, upon principles of natural justice and right, oblige the others to remain fettered to a government which had been pronounced by twelve of the thirteen legislatures to be defective and inadequate to the exigencies of the Union. At the same time, the independent political existence of the people of each State made it impossible to treat them as a minority subject to the power of such majority as would be formed by the States that might adopt the Constitution. If the people of a State should ratify it, they would be bound by it. If they should refuse to ratify it, they would simply remain out of the new Union that would be formed by the rest. It was therefore determined that the Constitution should undertake to be in force only in those States by whose inhabitants it might be adopted.[385] Then came the question, in what mode the assent of the people of the States was to be given. The constitution of one of the States[386] provided that it should be altered only in a prescribed mode; and it was said that the adoption of the Constitution now proposed would involve extensive changes in the constitution of every State. This was equally true of the constitutions of those States which had provided no mode for making such changes, and in which the State officers were all bound by oath to support the existing constitution. These difficulties, however, were by no means insurmountable. It was universally acknowledged that the people of a State were the fountain of all political power, and if, in the method of appealing to them, the consent of the State government that such appeal should be made were involved, there could be no question that the proceeding would be in accordance with what had always been regarded as a cardinal principle of American liberty. For, since the birth of that liberty, it had been always assumed that, when it has become necessary to ascertain the will of the people on a new exigency, it is for the existing legislative power to provide for it by an ordinary act of legislation.[387] Whatever changes, therefore, in the State constitutions might become necessary in consequence of the adoption of the national Constitution, it would be a just presumption that the will of the people, duly ascertained by their legislature, had decided, by that adoption, that such changes should be made; and the formal act of making them could follow at any time when arrangements might be made for it. But if no mode of ratification of the national Constitution were to be prescribed, and it were left to each State to act upon it in any manner that it might prefer, there would be no uniformity in the mode of creating the new government in the different States; and if the Convention and the Congress were to refer its adoption to the State legislatures, it would not rest on the direct authority of the people. For these reasons, the Convention adhered to the plan of having the Constitution submitted directly to assemblies of representatives of the people in each State, chosen for the express purpose of deciding on its adoption.[388] There was still another question, of great practical importance, to be determined. Was the Constitution to go into operation at all, unless adopted by all the States, and if so, what number should be sufficient for its establishment? It appeared clearly enough, that to require a unanimous adoption would defeat all the labors of the Convention. Rhode Island had taken no part in the formation of the Constitution, and could not be expected to ratify it. New York had not been represented for some weeks in the Convention, and it was at least doubtful how the people of that State would receive the proposed system, to which a majority of their delegates had declared themselves to be strenuously opposed.[389] Maryland continued to be present in the Convention, and a majority of her delegates still supported the Constitution; but Luther Martin confidently predicted its rejection by the State, and it was evident that his utmost energies would be put forth against it. Under these circumstances, to have required a unanimous adoption by the States would have been fatal to the experiment of creating a new government. Some of the members were in favor of such a number as would form both a majority of the States and a majority of the people of the United States. But there was an idea familiar to the people, in the number that had been required under the Confederation upon certain questions of grave importance; and in order that the Constitution might avail itself of this established usage, it was determined that the ratifications of the conventions of _nine_ States should be sufficient to establish the Constitution between the States that might so ratify it.[390] The Constitution, as thus finally prepared, received the formal assent of the States in the Convention, on the last day of the session.[391] The great majority of the members desired that the instrument should go forth to the public, not only with an official attestation that it had been agreed upon by the States represented, but also with the individual sanction and signatures of their delegates. Three of the members present, however, Randolph and Mason of Virginia, and Gerry of Massachusetts, notwithstanding the proposed form of attestation contained no personal approbation of the system, and signified only that it had been agreed to by the unanimous consent of the States then present, refused to sign the instrument.[392] The objections which these gentlemen had to different features of the Constitution would have been waived, if the Convention had been willing to take a course quite opposite to that which had been thought expedient. They desired that the State conventions should be at liberty to propose amendments, and that those amendments should be finally acted upon by another general convention.[393] The nature of the plan, however, and the form in which it was to be submitted to the people of the States, made it necessary that it should be adopted or rejected as a whole, by the convention of each State. As a process of amendment by the action of the Congress and the State legislatures had been provided in the instrument, there was the less necessity for holding a second convention. The State conventions would obviously be at liberty to propose amendments, but not to make them a condition of their acceptance of the government as proposed. A letter having been prepared to accompany the Constitution, and to present it to the consideration and action of the existing Congress, the instrument was formally signed by all the other members then present. The official record sent to the Congress of the resolutions, which directed that the Constitution be laid before that body, recited the presence of the States of New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. New York was not regarded as officially present; but in order that the proceedings might have all the weight that a name of so much importance could give to them, in the place that should have been filled by his State, was recited the name of "Mr. Hamilton from New York." The prominence thus given to the name of Hamilton, by the absence of his colleagues, was significant of the part he was to act in the great events and discussions that were to attend the ratification of the instrument by the States. His objections to the plan were certainly not less grave and important than those which were entertained by the members who refused to give to it their signatures; but like Madison, like Pinckney and Franklin and Washington, he considered the choice to be between anarchy and convulsion, on the one side, and the chances of good to be expected of this plan, on the other. Upon this issue, in truth, the Constitution went to the people of the United States. There is a tradition, that, when Washington was about to sign the instrument, he rose from his seat, and, holding the pen in his hand, after a short pause, pronounced these words:--"Should the States reject this excellent Constitution, the probability is that an opportunity will never again offer to cancel another in peace,--the next will be drawn in blood."[394] FOOTNOTES: [374] Elliot, V. 332, 333. [375] First draft of the Constitution, Art. XVIII. Elliot, V. 381. [376] Constitution, Art. IV. § 4. [377] Elliot, V. 157. [378] Elliot, V. 376. [379] Elliot, V. 530-532. [380] Constitution, Art. I § 9. [381] Ibid. Art. I. § 3. [382] Elliot, V. 532. [383] Ibid. 551, 552. Constitution, Art. I § 3. [384] Constitution, Art. VI. [385] Elliot, V. 499. [386] Maryland. [387] Works of Daniel Webster, VI. 227. [388] The vote, however, was only six States to four. Elliot, V. 500. [389] Two of the New York delegates, Messrs. Yates and Lansing, left the Convention on the 5th of July. Hamilton had previously returned to the city of New York, on private business. He left June 29 and returned August 13. It appears from his correspondence that he was again in the city of New York on the 20th of August, and that he remained there until the 28th. On the 6th of September he was in the Convention. The vote of the State was not taken in the Convention after the retirement of Yates and Lansing. [390] 1 Elliot, V. 499-501. The article embodying this decision was the 21st in the report of the committee of detail. It became, on the revision, Article VIII. of the Constitution. [391] September 17. [392] This form of attestation had been adopted in the hope of gaining the signatures of all the members, but without success. [393] Mr. Madison has given the principal grounds of objection which these gentlemen felt to the Constitution. It is not necessary to repeat them here, as they were nearly all met by the subsequent amendments, so far as they were special, and did not relate to the general tendency of the system. (See Madison, Elliot, V. 552-558.) [394] My authority for this anecdote is the Pennsylvania Journal of November 14, 1787, where it was stated by a writer who dates his communication from Elizabethtown, November 7. BOOK V. ADOPTION OF THE CONSTITUTION. CHAPTER I. GENERAL RECEPTION OF THE CONSTITUTION.--HOPES OF A REUNION WITH GREAT BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING IN MASSACHUSETTS, NEW YORK, VIRGINIA, SOUTH CAROLINA, MARYLAND, AND NEW HAMPSHIRE.--APPOINTMENT OF THEIR CONVENTIONS. The national Convention was dissolved on the 14th of September. The state of expectation and anxiety throughout the country during its deliberations, and at the moment of its adjournment, will appear from a few leading facts and ideas, which illustrate the condition of the popular mind when the Constitution made its appearance. The secrecy with which the proceedings of the Convention had been conducted, the nature of its business, and the great eminence and personal influence of its principal members, had combined to create the deepest solicitude in the public mind in all the chief centres of population and intelligence throughout the Union. An assembly of many of the wisest and most distinguished men in America had been engaged for four months in preparing for the United States a new form of government, and the public had acquired no definite knowledge of their transactions, and no information respecting the nature of the system they were likely to propose. Under these circumstances, we may expect to find the most singular rumors prevailing during the session of the Convention, and a great excitement in the public mind in many localities, when the result was announced. Among the reports that were more or less believed through the latter part of the summer, was the idle one that the Convention were framing a system of monarchical government, and that the Bishop of Osnaburg was to be sent for, to be the sovereign of the new kingdom. Foolish as it may appear to us, this story occasioned some real alarm in its day. It is to be traced to a favorite idea of that class of Americans who had either been avowed "Tories" during the Revolution, or had secretly felt a greater sympathy with the mother country than with the land of their birth, and who were at this period generally called "Loyalists." Some of these persons had taken no part, on either side, during the Revolutionary war, and had abstained from active participation in public affairs since the peace. They were all of that class of minds whose tendencies led them to the belief that the materials for a safe and efficient republican government were not to be found in these States, and that the public disorders could be corrected only by a government of a very different character. Their feelings and opinions carried them towards a reconciliation with England, and their grand scheme for this purpose was to invite hither the titular Bishop of Osnaburg.[395] Their numbers were not large in any of the States; but the feeling of insecurity and the dread of impending anarchy were shared by others who had no particular inclination towards England; and it is not to be doubted that the Constitution, among the other mischiefs which it averted, saved the country from a desperate attempt to introduce a form of government which must have been crushed beneath commotions that would have made all government, for a long time at least, impracticable. The public anxiety, created by the reports in circulation, had reached such a point in the month of August,--when it was rumored that the Convention had recently given a higher tone to the system they were preparing,--that members found it necessary to answer numerous letters of inquiry from persons who had become honestly alarmed. "Though we cannot affirmatively tell you," was their answer, "what we are doing, we can negatively tell you what we are _not_ doing:--we never once thought of a king."[396] All doubt and uncertainty were dispelled, however, by the publication of the Constitution in the newspapers of Philadelphia, on the 19th of September. It was at once copied into the principal journals of all the States, and was perhaps as much read by the people at large as any document could have been in the condition of the means of public intelligence which a very imperfect post-office department then afforded. It met everywhere with warm friends and warm opponents; its friends and its opponents being composed of various classes of men, found, in different proportions, in almost all of the States. Those who became its advocates were, first, a large body of men, who recognized, or thought they recognized, in it the admirable system which it in fact proved to be when put into operation; secondly, those who, like most of the statesmen who made it, believed it to be the best attainable government that could be adopted by the people of the United States, overlooking defects which they acknowledged, or trusting to the power of amendment which it contained; and, thirdly, the mercantile and manufacturing classes, who regarded its commercial and revenue powers with great favor. Its adversaries were those who had always opposed any enlargement of the federal system; those whose consequence as politicians would be diminished by the establishment of a government able to attract into its service the highest classes of talent and character, and presenting a service distinct from that of the States; those who conscientiously believed its provisions and powers dangerous to the rights of the States and to public liberty; and, finally, those who were opposed to any government, whether State or national or federal, that would have vigor and energy enough to protect the rights of property, to prevent schemes of plunder in the form of paper money, and to bring about the discharge of public and private debts. The different opponents of the Constitution being animated by these various motives, great care should be taken by posterity, in estimating the conduct of individuals, not to confound these classes with each other, although they were often united in action. As the Constitution presented itself to the people in the light of a proposal to enlarge and reconstruct the system of the Federal Union, its advocates became known as the "Federalists," and its adversaries as the "Anti-Federalists." This celebrated designation of Federalist, which afterwards became so renowned in our political history as the name of a party, signified at first nothing more than was implied in the title of the essays which passed under that name, namely, an advocacy of the Constitution of the United States.[397] Midway between the active friends and opponents of the Constitution lay that great and somewhat inert mass of the people, which, in all free countries, finally decides by its preponderance every seemingly doubtful question of political changes. It was composed of those who had no settled convictions or favorite theories respecting the best form of a general government, and who were under the influence of no other motive than a desire for some system that would relieve their industry from the oppressions under which it had long labored, and would give security, peace, and dignity to their country. Ardently attached to the principles of republican government and to their traditionary maxims of public liberty, and generally feeling that their respective States were the safest depositaries of those principles and maxims, this portion of the people of the United States were likely to be much influenced by the arguments against the Constitution founded on its want of what was called a Bill of Rights, on its omission to secure a trial by jury in civil cases, and on the other alleged defects which were afterwards corrected by the first ten Amendments. But they had great confidence in the principal framers of the instrument, an unbounded reverence for Washington and Franklin, and a willingness to try any experiment sanctioned by men so illustrious and so entirely incapable of any selfish or unworthy purpose.[398] There were, however, considerable numbers of the people, in the more remote districts of several of the States, who had a very imperfect acquaintance, if they had any, with the details of the proposed system, at the time when their legislatures were called upon to provide for the assembling of conventions; for we are not to suppose that what would now be the general and almost instantaneous knowledge of any great political event or topic, could have taken place at that day concerning the proposed Constitution of the United States. Still it was quite generally understood before its final ratification in the States where its adoption was postponed to the following year, where information was most wanted, and where the chief struggles occurred; and it is doubtless correct to assert that its adoption was the intelligent choice of a majority of the people of each State, as well as the choice of their delegates, when their conventions successively acted upon it. On the adjournment of the Convention, Madison, King, and Gorham, who held seats in the Congress of the Confederation, hastened to the city of New York, where that body was then sitting. They found eleven States represented.[399] But they found also that an effort was likely to be made, either to arrest the Constitution on its way to the people of the States, or to subject it to alteration before it should be sent to the legislatures. It was received by official communication from the Convention in about ten days after that assembly was dissolved. All that was asked of the Congress was, that they should transmit it to their constituent legislatures for their action. The old objection, that the Congress could with propriety participate in no measure designed to change the form of a government which they were appointed to administer, having been answered, Richard Henry Lee of Virginia proposed to amend the instrument by inserting a Bill of Rights, trial by jury in civil cases, and other provisions in conformity with the objections which had been made in the Convention by Mr. Mason. To the address and skill of Mr. Madison, I think, the defeat of this attempt must be attributed. If it had succeeded, the Constitution could never have been adopted by the necessary number of States; for the recommendation of the Convention did not make the action of the State legislatures conditional upon their receiving the instrument from the Congress; the legislatures would have been at liberty to send the document published by the Convention to the assemblies of delegates of the people, without adding provisions that might have been added by the Congress; some of them would have done so, while others would have followed the action of the Congress, and thus there would have been in fact two Constitutions before the people of the States, and their acts of ratification would have related to dissimilar instruments. This consideration induced the Congress, by a unanimous vote of the States present, to adopt a resolution which, while it contained no approval of the Constitution, abstained from interfering with it as it came from the Convention, and transmitted it to the State legislatures, "in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the Convention made and provided in that case."[400] In Massachusetts, the Constitution was well received, on its first publication, so far as its friends in the central portion of the Union could ascertain. Mr. Gerry was a good deal censured for refusing to sign it, and the public voice, in Boston and its neighborhood, appeared to be strongly in its favor. But in a very short time three parties were formed among the people of the State, in such proportions as to make the result quite uncertain. The commercial classes, the men of property, the clergy, the members of the legal profession, including the judges, the officers of the late army, and most of the people of the large towns, were decidedly in favor of the Constitution. This party amounted to three sevenths of the people of the State. The inhabitants of the district of Maine, who were then looking forward to the formation of a new State, would be likely to vote for the new Constitution, or to oppose it, as they believed it would facilitate or retard their wishes; and this party numbered two sevenths. The third party consisted of those who had been concerned in the late insurrection under Shays, and their abettors; the majority of them desiring the annihilation of debts, public and private, and believing that the proposed Constitution would strengthen all the rights of property. Their numbers were estimated at two sevenths of the people.[401] It was evident that a union of the first two parties would secure the ratification of the instrument, and a union of the last two would defeat it. Great caution, conciliation, and good temper were, therefore, required, on the part of its friends. The influence of Massachusetts on Virginia, on New York, and indeed on all the States that were likely to act after her, would be of the utmost importance. The State convention was ordered to assemble in January. In New York, as elsewhere, the first impressions were in favor of the Constitution. In the city, and in the southern counties generally, it was from the first highly popular. But it was soon apparent that the whole official influence of the executive government of the State would be thrown against it. There had been a strong party in the State, ever since its refusal to bestow on the Congress the powers asked for in the revenue system of 1783, who had regarded the Union with jealousy, and steadily opposed the surrender to it of any further powers. Of this party, the Governor, George Clinton, was now the head; and the government of the State, which embraced a considerable amount of what is termed "patronage," was in their hands. Two of the delegates of the State to the national Convention, Yates and Lansing, had retired from that body before the Constitution was completed, and had announced their opposition to it in a letter to the Governor, which, from its tone and the character of its objections, was likely to produce a strong impression on the public mind. It became evident that the Constitution could be carried in the State of New York in no other way than by a thorough discussion of its merits,--such a discussion as would cause it to be understood by the people, and would convince them that its adoption was demanded by their interests. For this purpose, Hamilton, Madison, and Jay, under the common signature of Publius, commenced the publication of the series of essays which became known as The Federalist. The first number was issued in the latter part of October. In January, the Governor presented the official communication of the instrument from the Congress to the legislature, with the cold remark, that, from the nature of his official position, it would be improper for him to have any other agency in the business than that of laying the papers before them for their information. Neither he nor his party, however, contented themselves with this abstinence. After a severe struggle, resolutions ordering a State convention to be elected were passed by the bare majorities of three in the Senate and two in the House, on the first day of February, 1788. The elections were held in April; and when the result became known, in the latter part of May, it appeared that the Anti-Federalists had elected two thirds of the members of the Convention, and that probably four sevenths of the people of the State were unfriendly to the Constitution. Backed by this large majority, the leaders of the Anti-Federal party intended to meet in convention at the appointed time, in June, and then to adjourn until the spring or summer of 1789. Their argument for this course was, that, if the Constitution had been adopted in the course of a twelvemonth by nine other States, New York would have an opportunity to witness its operation and to act according to circumstances. They would thus avoid an immediate rejection,--a step which might lead the Federalists to seek a separation of the southern from the northern part of the State, for the purpose of forming a new State. On the other hand, the Federalists rested their hopes upon what they could do to enlighten the public at large, and upon the effect on their opponents of the action of other States, especially of Virginia, whose convention was to meet at nearly the same time. The Convention of New York assembled at Poughkeepsie,[402] on the 17th of June, 1788. However strong the opposition in other States, it was to be in Virginia far more formidable, from the abilities and influence of its leaders, from the nature of their objections, and from the peculiar character of the State. Possessed of a large number of men justly entitled to be regarded then and always as statesmen, although many of them were prone to great refinements in matters of government; filled with the spirit of republican freedom, although its polity and manners were marked by several aristocratic features; having, on the one hand, but few among its citizens interested in commerce, and still fewer, on the other hand, of those levelling and licentious classes which elsewhere sought to overturn or control the interests of property; ever ready to lead in what it regarded as patriotic and demanded by the interests of the Union, but jealous of its own dignity and of the rights of its sovereignty;--the State of Virginia would certainly subject the Constitution to as severe an ordeal as it could undergo anywhere, and would elicit in the discussion all the good or the evil that could be discovered in the examination of a system before it had been practically tried. The State was to feel, it is true, the almost overshadowing influence of Washington, in favor of the new system, exerted, not by personal participation in its proceedings, but in a manner which could leave no doubt respecting his opinion. But it was also to feel the strenuous opposition of Patrick Henry, that great natural orator of the Revolution, whose influence over popular assemblies was enormous, and who added acuteness, subtilty, and logic to the fierce sincerity of his unstudied harangues, although his knowledge was meagre and his range of thought circumscribed; and the not less strenuous or effective opposition of George Mason, who had little of the eloquence and passion of his renowned compatriot, but who was one of the most profound and able of all the American statesmen opposed to the Constitution, while he was inferior in general powers and resources to not more than two or three of those who framed or advocated it. Richard Henry Lee, William Grayson, Benjamin Harrison, John Tyler, and others of less note, were united with Henry and Mason in opposing the Constitution. Its leading advocates were to be Madison, Marshall, the future Chief Justice of the United States, George Nicholas, and the Chancellor Pendleton. The Governor, Edmund Randolph, occupied for a time a middle position between its friends and its opponents, but finally gave to it his support, from motives which I have elsewhere described as eminently honorable and patriotic. One of the most distinguished of the public men of Virginia had been absent in the diplomatic service of the country for three years. His eminent abilities and public services, his national reputation, and the influence of his name, naturally made both parties anxious to claim the authority of Jefferson, and he was at once furnished with a copy of the Constitution as soon as it appeared. In the heats of subsequent political conflicts he has been often charged by his opponents with a general hostility to the Constitution. The truth is, that Mr. Jefferson's opinions on the subject of government, and of what was desirable and expedient to be done in this country, united with the effect of his long absence from home,[403] did lead him, at first, to think and to say that the Constitution had defects which, if not corrected, would destroy the liberties of America. He was by far the most democratic, in the tendency of his opinions, of all the principal American statesmen of that age. He was, according to his own avowal, no friend to an energetic government anywhere. He carried abroad the opinion that the Confederation could be adapted, with a few changes, to all the wants of the Union; and this opinion he continued to retain, because the events which had taken place here during his absence did not produce upon his mind the effect which they produced upon the great majority of public men who remained in the midst of them. He freely declared to more than one of his correspondents in Virginia, at this time, that such disorders as had been witnessed in Massachusetts were necessary to public liberty, and that the national Convention had been too much influenced by them, in preparing the Constitution. He held that the natural progress of things is for liberty to lose and for government to gain ground; and that no government should be organized without those express and positive restraints which will jealously guard the liberties of the people, even if those liberties should periodically break into licentiousness. One of his favorite maxims of government was "rotation in office"; and he thought the government of the Union should have cognizance only of matters involved in the relations of the people of each State to foreign countries, or to the people of the other States, and that each State should retain the exclusive control of all its internal and domestic concerns, and especially the power of direct taxation. Hence it is not surprising that, when Mr. Jefferson received at Paris, early in November, a copy of the Constitution, and when he found in it no express declarations insuring the freedom of religion, freedom of the press, and freedom of the person under the uninterrupted protection of the _habeas corpus_, and no trial by jury in civil cases, and found also that the President would be re-eligible, and that the government would have the power of direct taxation, his anxiety should have been excited. It is a mistake, however, to suppose that he counselled a direct rejection of the instrument by the people of Virginia. His first suggestion was, that the nine States which should first act upon it should adopt it, unconditionally, and that the four remaining States should accept it only on the previous condition that certain amendments should be made. This plan of his became known in Virginia in the course of the winter of 1787-88, and it gave the Anti-Federalists what they considered a warrant for using his authority on their side. But before the following spring, when he had had an opportunity to see the course pursued by Massachusetts, he changed his opinion, and authorized his friends to say that he regarded an unconditional acceptance by each State, and subsequent amendments, in the mode provided by the Constitution, as the only rational plan.[404] He also abandoned the opinion that the general government ought not to have the power of direct taxation; but he never receded from his objections founded on the want of a bill of rights, and of trial by jury, and on the re-eligibility of the President. Immediately after his return to Mount Vernon from the national Convention, Washington sent copies of the Constitution to Patrick Henry, Mason, Harrison, and other leading persons whose opposition he anticipated, with a temperate but firm expression of his own opinion. The replies of these gentlemen furnished him with the grounds of their objections, and at the same time relieved him, as to all of them but Henry, from the apprehension that they might resist the calling of a State convention. Mason and Henry were both members of the legislature. The former was expressly instructed by his constituents of Alexandria county[405] to vote for a submission of the Constitution to the people of the State in convention;--a vote which he would probably have given without instruction, as he declared to General Washington that he should use all his influence for this purpose. Mr. Henry was not instructed, and the friends of the Constitution expected his resistance. The legislature assembled in October, and on the first day of the session, in a very full House, Henry declared, to the surprise of everybody, that the proposed Constitution must go to a popular convention. The elections for such a body were ordered to be held in March and April of the following spring. When they came on, the news that the convention of New Hampshire had postponed their action was employed by the Anti-Federalists, who insisted that this step had been taken in deference to Virginia; although it was in fact taken merely in order that the delegates of New Hampshire might get their previous instructions against the Constitution removed by their constituents. The pride of Virginia was touched by this electioneering expedient, and the result was that the parties in the State convention were nearly balanced, the Federalists however having, as they supposed, a majority.[406] The convention was to assemble on the 2d of June, 1788. In the legislature of South Carolina the Constitution was debated, with great earnestness, for three days, before it was decided to send it to a popular convention. This was owing to the great persistency of Rawlins Lowndes, who carried on the discussion in opposition to the Constitution, almost single-handed and with great ability, against the two Pinckneys, Pierce Butler, John and Edward Rutledge, John Julius Pringle, Robert Barnwell, Dr. David Ramsay, and many other gentlemen. At length, on the 19th of January, a resolution was passed, directing a convention of the people to assemble on the 12th of May. The debate in the legislature had tended to diffuse information respecting the system, but it had also produced a formidable minority throughout the State. Mr. Lowndes had employed, with a good deal of skill, the local arguments which would be most likely to form the objections of a citizen of South Carolina. He inveighed against the regulation of commerce, the power over the slave-trade that was to belong to Congress at the end of twenty years, and the preponderance which he contended would be given to the Eastern States by the system of representation in Congress; and although he was ably answered on all points, the effect of the discussion was such, that a large minority was returned to the Convention having a strong hostility to the proposed system.[407] The legislature of Maryland assembled in December, and directed the delegates who had represented the State in the national Convention to attend and give an account of the proceedings of that assembly. It was in compliance with this direction that Luther Martin laid before the legislature that celebrated communication which embodied not only a very clear statement of the mode in which the principal compromises of the Constitution were framed, as seen from the point of view occupied by one who resisted them at every step, but also an exceedingly able argument against the fundamental principle of the proposed government. It was a paper, too, marked throughout with an earnestness almost amounting to fanaticism. Repelling, with natural indignation and dignity, the imputation that he was influenced by a State office which he then held, he referred to the numerous honors and emoluments which the Constitution of the United States would create, and suggested--what his abilities and reputation well justified--that his chance of obtaining a share of them was as good as most men's. "But this," was his solemn conclusion, "I can say with truth,--that so far was I from being influenced in my conduct by interest, or the consideration of office, that I would cheerfully resign the appointment I now hold; I would bind myself never to accept another, either under the general government or that of my own State; I would do more, sir;--so destructive do I consider the present system to the happiness of my country, I would cheerfully sacrifice that share of property with which Heaven has blessed a life of industry; I would reduce myself to indigence and poverty; and those who are dearer to me than my own existence, I would intrust to the care and protection of that Providence who hath so kindly protected myself,--if on _those terms only_ I could procure my country to reject those chains which are forged for it." Such a strength of conviction as this, on the part of a man of high talent, was well calculated to produce an effect. No document that appeared anywhere, against the Constitution, was better adapted to rouse the jealousy, to confirm the doubts, or to decide the opinions, of a certain class of minds. But it was an argument which reduced the whole question substantially to the issue, whether the principle of the Union could safely be changed from that of a federal league, with an equality of representation and power as between the States, to a system of national representation in a legislative body having cognizance of certain national interests, in one branch of which the people inhabiting the respective States should have power in proportion to their numbers.[408] This was a question on which men would naturally and honestly differ; but it was a question which a majority of reflecting men, in almost every State, were likely, after due inquiry, to decide against the views of Mr. Martin, because it was clear that the Confederation had failed, and had failed chiefly by reason of the peculiar and characteristic nature of its representative system, and because the representative system proposed in the Constitution was the only one that could be agreed upon as the alternative. Mr. Martin's objections, however, like those of other distinguished men who took the same side in other States, were of a nature to form the creed of an earnest, conscientious, and active minority. They had this effect in the State of Maryland. The legislature ordered a State convention, to consider the proposed Constitution, and directed it to meet on the 21st of April, 1788. The convention of New Hampshire was to assemble in February. A large portion of the State lay remote from the channels of intelligence, and a considerable part of the people in the interior had not seen the Constitution, when they were called upon to elect their delegates. The population, outside of two or three principal places, was a rural one, thinly scattered over townships of large territorial extent, lying among the hills of a broken and rugged country, extending northerly from the narrow strip of sea-coast towards the frontier of Canada. It was easy for the opposition to persuade such a people that a scheme of government had been prepared which they ought to reject; and the consequence of their efforts was that the State convention assembled, probably with a majority, certainly with a strong minority, of its members bound by positive instructions to vote against the Constitution which they were to consider. I have thus, in anticipation of the strict order of events, given a general account of the position of this great question in six of the States, down to the time of the meeting of their respective conventions, because when the session of the convention of Massachusetts commenced, in January, 1788, the people of the five States of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut had successively ratified the Constitution without proposing any amendments, and because the action of the others, extending through the six following months, embraced the real crisis to which the Constitution was subjected, and developed what were thereafter to be considered as its important defects, according to the view of a majority of the States, and probably also of a majority of the people of all the States. For although the people of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut ratified the Constitution without insisting on previous or subsequent amendments, it is certain that some of the same topics were the causes of anxiety and objection in those States, which occasioned so much difficulty, and became the grounds of special action, in the remaining States. In coming, however, to the more particular description of the resistance which the Constitution encountered, it will be necessary to discriminate between the opposition that was made to the general plan of the government, or to the particular features of it which it was proposed to create, and that which was founded on its omission to provide for certain things that were deemed essential. Of what may be called the positive objections to the Constitution, it may be said, in general, that, however fruitful of debate, or declamation, or serious and important doubt, might be the question whether such a government as had been framed by the national Convention should be substituted for the Confederation, the opposition were not confined to this question, as the means of persuading the people that the proposed system ought to be rejected. One of the most deeply interested of the men who were watching the currents of public opinion with extreme solicitude, observed "a strong belief in the people at large of the insufficiency of the Confederation to preserve the existence of the Union, and of the necessity of the Union to their safety and prosperity; of course, a strong desire of a change, and a predisposition to receive well the propositions of the Convention."[409] But while the Constitution came before the people with this conviction and this predisposition in its favor, yet when its opponents, in addition to their positive objections to what it did contain, could point to what it did _not_ embrace, and could say that it proposed to establish a government of great power, without providing for rights of primary importance, and without any declaration of the cardinal maxims of liberty which the people had from the first been accustomed to incorporate with their State constitutions; and while the local interests, the sectional feelings, and the separate policy, real or supposed, of different States, furnished such a variety of means for defeating its adoption by the necessary number of nine States;--we may not wonder that its friends should have been doubtful of the issue. "It is almost arrogance," said the same anxious observer, "in so complicated a subject, depending so entirely upon the incalculable fluctuations of the human passions, to attempt even a conjecture about the result."[410] FOOTNOTES: [395] It may be amusing to Americans of this and future generations to know who this personage was for whom it was rumored that the Loyalists desired to "send," and whose advent as a possible ruler of this country was a vague apprehension in the popular mind for a good while, and finally came to be imputed as a project to the framers of the Constitution. The Bishop of Osnaburg was no other than the late Duke of York, Frederick, the second son of King George III.; a prince whose conduct as commander-in-chief of the army, in consequence of the sale of commissions by his mistress, one Mrs. Clarke, became in 1809 a subject of inquiry, leading to the most scandalous revelations, before the House of Commons. The Duke was born in 1763, and was consequently, at the period spoken of in the text, at the ripe age of twenty-four. When about a year old (1764), he was chosen Bishop of Osnaburg. This was a German province (Osnabrück), formerly a bishopric of great antiquity, founded by Charlemagne. At the Reformation most of the inhabitants became Lutherans, and by the Treaty of Westphalia it was agreed that it should be governed alternately by a Roman Catholic and a Protestant Bishop. In 1802 it was secularized, and assigned as an hereditary principality to George III., in his capacity of King of Hanover. Prince Frederick continued to be called by the title of Bishop of Osnaburg, until he was created Duke of York. I am not aware that the whispers of his name in the secret counsels of our Loyalists, as a proposed king for America, became known in England. Whether such knowledge would have excited a smile, or have awakened serious hopes, is a question on which the reader can speculate. But it is certain that there were persons in this country, and in the neighboring British Provinces, who had long hoped for a reunion of the American States with the parent country, through this or some other "mad project." Colonel Humphreys, (who had been one of Washington's _aides_,) writing to Hamilton, from New Haven, under date of September 16, 1787, says: "The quondam Tories have undoubtedly conceived hopes of a future union with Great Britain, from the inefficacy of our government, and the tumults which prevailed during the last winter. I saw a letter, written at that period, by a clergyman of considerable reputation in Nova Scotia, to a person of eminence in this State, stating the impossibility of our being happy under our present constitution, and proposing (now we could think and argue calmly on all the consequences), that the efforts of the moderate, the virtuous, and the brave should be exerted to effect a reunion with the parent state.... It seems, by a conversation I have had here, that the ultimate practicability of introducing the Bishop of Osnaburg is not a novel idea among those who were formerly termed Loyalists. Ever since the peace it has been occasionally talked of and wished for. Yesterday, where I dined, half jest, half earnest, he was given as the first toast. I leave you now, my dear friend, to reflect how ripe we are for the most mad and ruinous project that can be suggested, especially when, in addition to this view, we take into consideration how thoroughly the patriotic part of the community, the friends of an efficient government, are discouraged with the present system, and irritated at the popular demagogues who are determined to keep themselves in office, at the risk of everything. Thence apprehensions are formed, that, though the measures proposed by the Convention may not be equal to the wishes of the most enlightened and virtuous, yet that they will be too high-toned to be adopted by our popular assemblies. Should that happen, our political ship will be left afloat on a sea of chance, without a rudder as well as without a pilot." (Works of Hamilton, I. 443.) In a grave and comprehensive private memorandum, drawn up by Hamilton soon after the Constitution appeared, in which he summed up the probabilities for and against its adoption, and the consequences of its rejection, the following occurs, as among the events likely to follow such rejection: "A reunion with Great Britain, from universal disgust at a state of commotion, is not impossible, though not much to be feared. The most plausible shape of such a business would be, the establishment of a son of the present monarch in the supreme government of this country, with a family compact." (Works, II. 419, 421.) [396] Pennsylvania Journal, August 22, 1787. [397] The history of the term "Federal," or "Federalist," offers a curious illustration of the capricious changes of sense which political designations often undergo, within a short period of time, according to the accidental circumstances which give them their application. During the discussions of the Convention which framed the Constitution of the United States, the term _federal_ was employed in its truly philosophic sense, to designate the nature of the government established by the Articles of Confederation, in distinction from a national system, that would be formed by the introduction of the plan of having the States represented in the Congress in proportion to the numbers of their inhabitants. But when the Constitution was before the people of the States for their adoption, its friends and advocates were popularly called Federalists, because they favored an enlargement of the Federal government at the expense of some part of the State sovereignties, and its opponents were called the Anti-Federalists. In this use, the former term in no way characterized the nature of the system advocated, but merely designated a supporter of the Constitution. A few years later, when the first parties were formed, in the first term of Washington's Administration, it so happened that the leading men who gave a distinct character to the development which the Constitution then received had been prominent advocates of its adoption, and had been known therefore as Federalists, as had also been the case with some of those who separated themselves from this body of persons and formed what was termed the Republican, afterwards the Democratic party. But the prominent supporters of the policy which originated in Washington's administration continued to be called Federalists, and the term thus came to denote a particular school of politics under the Constitution, although it previously signified merely an advocacy of its adoption. Thus, for example, Hamilton, in 1787, was no Federalist, because he was opposed to the continuance of a federal, and desired the establishment of a national government. In 1788, he was a Federalist, because he wished the Constitution to be adopted; and he afterwards continued to be a Federalist, because he favored a particular policy in the administration of the government, under the Constitution. It was in this latter sense that the term became so celebrated in our political history. The reader will observe that I use it, of course, in this work, only in the sense attached to it while the Constitution was before the people of the States for adoption. [398] A striking proof of the importance attached by the people to the opinions of Washington and Franklin may be found in a controversy carried on for a short time in the newspapers of Philadelphia and New York, after the Constitution appeared, whether those distinguished persons _really approved_ what they had signed. [399] All but Maryland and Rhode Island. [400] Passed September 28, 1787. Journals, XII. 149-166. [401] This is the substance of a careful account given by General Knox to General Washington. (Works of Washington, IX. 310, 311.) [402] A town on the Hudson River, seventy-five miles north of the city of New York. [403] He went abroad in the summer of 1784. [404] Compare Mr. Jefferson's autobiography, and his correspondence, in the first, second, and third volumes of his collected works (edition of 1853), and the letters of Mr. Madison. [405] In the newspapers of the time there is to be found a story that Mr. Mason was very roughly received on his arrival at the city of Alexandria, after the adjournment of the national Convention, on account of his refusal to sign the Constitution. The occurrence is not alluded to in Washington's correspondence, although he closely observed Mr. Mason's movements, and regarded them with evident anxiety. The story is told in the Pennsylvania Journal of October 17, 1787,--a strong Federal paper. I know of no other confirmation of it than the fact that the people of Alexandria embraced the Constitution from the first with "enthusiastic warmth," according to the account given by General Washington to one of his correspondents. (Works, IX. 272.) [406] Washington's Works, IX. 266, 267, 273, 340-342, 345, 346. [407] This debate of three days in the South Carolina legislature was one of the most able of all the discussions attending the ratification of the Constitution. Mr. Lowndes was overmatched by his antagonists, but he resisted with great spirit, finally closed with the declaration that he saw dangers in the proposed government so great, that he could wish, when dead, for no other epitaph than this: "Here lies the man that opposed the Constitution, because it was ruinous to the liberty of America." He lived to find his desired epitaph a false prophecy. He was the father, of the late William Lowndes, who represented the State of South Carolina in Congress, with so much honor and distinction, during the administration of Mr. Madison. [408] Mr. Martin's objections extended to many of the details of the Constitution, but his great argument was that directed against its system of representation, which he predicted would destroy the State governments. [409] Hamilton, Works, II. 419, 420. [410] Hamilton, Works, II. 421. CHAPTER II. RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY, GEORGIA, AND CONNECTICUT, WITHOUT OBJECTION.--CLOSE OF THE YEAR 1787.--BEGINNING OF THE YEAR 1788.--RATIFICATION OF MASSACHUSETTS, THE SIXTH STATE, WITH PROPOSITIONS OF AMENDMENT.--RATIFICATION OF MARYLAND, WITHOUT OBJECTION.--SOUTH CAROLINA, THE EIGHTH STATE, ADOPTS, AND PROPOSES AMENDMENTS. The first State that ratified the Constitution, although its convention was not the first to assemble, was Delaware. It was a small, compact community, with the northerly portion of its territory lying near the city of Philadelphia, with which its people had constant and extensive intercourse. Its public men were intelligent and patriotic. In the national Convention it had contended with great spirit for the interests of the smaller States, and its people now had the sagacity and good sense to perceive that they had gained every reasonable security for their peculiar rights. The public press of Philadelphia friendly to the Constitution furnished the means of understanding its merits, and the discussions in the convention of Pennsylvania, which assembled before that of Delaware, threw a flood of light over the whole subject, which the people of Delaware did not fail to regard. Their delegates unanimously ratified and adopted the Constitution on the 7th of December. The convention of Pennsylvania met, before that of any of the other States, at Philadelphia, on the 20th of November. It was the second State in the Union in population. Its chief city was perhaps the first in the Union in refinement and wealth, and had often been the scene of great political events of the utmost interest and importance to the whole country. There had sat, eleven years before, that illustrious Congress of deputies from the thirteen Colonies, who had declared the independence of America, had made Washington commander-in-chief of her armies, and had given her struggle for freedom a name throughout the world. There, the Revolutionary Congress had continued, with a short interruption, to direct the operations of the war. There, the alliance with France was ratified, in 1778. There, the Articles of Confederation were finally carried into full effect, in 1781. There, within six months afterwards, the Congress received intelligence of the surrender of Cornwallis, and walked in procession to one of the churches of the city, to return thanks to God for a victory which in effect terminated the war. There, the instructions for the treaty of peace were given, in 1782, and there the Constitution of the United States had been recently framed. For more than thirteen years, since the commencement of the Revolution, and with only occasional intervals, the people of Philadelphia had been accustomed to the presence of the most eminent statesmen of the country, and had learned, through the influences which had gone forth from their city, to embrace in their contemplation the interests of the Union. They placed in the State convention, that was to consider the proposed Constitution of the United States, one of the wisest and ablest of its framers,--James Wilson. The modesty of his subsequent career,[411] and the comparatively little attention that has been bestowed by succeeding generations upon the personal exertions that were made in framing and establishing the Constitution, must be regarded as the causes that have made his reputation, at this day, less extensive and general than his abilities and usefulness might have led his contemporaries to expect that it would be. Yet the services which he rendered to the country, first in assisting in the preparation of the Constitution, and afterwards in securing its adoption by the State of Pennsylvania, should place his name high upon the list of its benefactors. He had not the political genius which gave Hamilton such a complete mastery over the most complex subjects of government, and which enabled him, when the Constitution had been adopted, to give it a development in practice that made it even more successful than its theory alone could have allowed any one to regard as probable; nor had he the talent of Madison for debate and for constitutional analysis; but in the comprehensiveness of his views, and in his perception of the necessities of the country, he was not their inferior, and he was throughout one of their most efficient and best informed coadjutors. He had to encounter, in the convention of the State, a body of men, a majority of whom were not unfriendly to the Constitution, but among whom there was a minority very hard to be conciliated. In the counties which lay west of the Susquehanna,--the same region which afterwards, in Washington's administration, became the scene of an insurrection against the authority of the general government,--there was a rancorous, active, and determined opposition. Mr. Wilson, being the only member of the State convention who had taken part in the framing of the Constitution, was obliged to take the lead in explaining and defending it. His qualifications for this task were ample. He had been a very important and useful member of the national Convention; he had read every publication of importance, on both sides of the question, that had appeared since the Constitution was published, and his legal and historical knowledge was extensive and accurate. No man succeeded better than he did, in his arguments on that occasion, in combating the theory that a State government possessed the whole political sovereignty of the people of the State. However true it might be, he said, in England, that the Parliament possesses supreme and absolute power, and can make the constitution what it pleases, in America it has been incontrovertible since the Revolution, that the supreme, absolute, and uncontrollable power is in the people, before they make a constitution, and remains in them after it is made. To control the power and conduct of the legislature by an overruling constitution, was an improvement in the science and practice of government reserved to the American States; and at the foundation of this practice lies the right to change the constitution at pleasure,--a right which no positive institution can ever take from the people. When they have made a State constitution, they have bestowed on the government created by it a certain portion of their power; but the fee simple of their power remains in themselves. Mr. Wilson was equally clear in accounting for the omission to insert a bill of rights in the Constitution of the United States. In a government, he observed, consisting of enumerated powers, such as was then proposed for the United States, a bill of rights, which is an enumeration of the powers reserved by the people, must either be a perfect or an imperfect statement of the powers and privileges reserved. To undertake a perfect enumeration of the civil rights of mankind, is to undertake a very difficult and hazardous, and perhaps an impossible task; yet if the enumeration is imperfect, all implied power seems to be thrown into the hands of the government, on subjects in reference to which the authority of government is not expressly restrained, and the rights of the people are rendered less secure than they are under the silent operation of the maxim that every power not expressly granted remains in the people. This, he stated, was the view taken by a large majority of the national Convention, in which no direct proposition was ever made, according to his recollection, for the insertion of a bill of rights.[412] There is, undoubtedly, a general truth in this argument, but, like many general truths in the construction of governments, it may be open to exceptions when applied to particular subjects or interests. It appears to have been, for the time, successful; probably because the opponents of the Constitution, with whom Mr. Wilson was contending, did not bring forward specific propositions for the declaration of those particular rights which were made the subjects of special action in other State conventions. Besides a very thorough discussion of these great subjects, Mr. Wilson entered into an elaborate examination and defence of the whole system proposed in the Constitution. He was most ably seconded in his efforts by Thomas McKean, then Chief Justice of Pennsylvania and afterwards its Governor, the greater part of whose public life had been passed in the service of Delaware, his native State, and who had always been a strenuous advocate of the interests of the smaller States, but who found himself satisfied with the provision for them made by the Constitution for the construction of the Senate of the United States.[413] "I have gone," said he, "through the circle of office, in the legislative, executive, and judicial departments of government; and from all my study, observation, and experience, I must declare, that, from a full examination and due consideration of this system, it appears to me the best the world has yet seen. I congratulate you on the fair prospect of its being adopted, and am happy in the expectation of seeing accomplished what has long been my ardent wish, that you will hereafter have a salutary permanency in magistracy and stability in the laws." The result of the discussion in the convention of Pennsylvania was the ratification of the Constitution. The official ratification sent to Congress was signed by a very large majority of the delegates, and contains no notice of any dissent.[414] But the representatives of that portion of the State which lay west of the Susquehanna generally refused their assent, and their district afterwards became the place in which the proposition was considered whether the government should be allowed to be organized.[415] The convention of New Jersey was in session at the time of the ratification by Pennsylvania. Mr. Madison had passed through the State, in the autumn, on his way to the Congress, then sitting in the city of New York, and could discover no evidence of serious opposition to the Constitution. Lying between the States of New York and Pennsylvania, New Jersey was closely watched by the friends and the opponents of the Constitution in both of those States, and was likely to be much influenced by the predominating sentiment in the one that should first act.[416] But the people of New Jersey had, in truth, fairly considered the whole matter, and had found what their own interests required. They alone, of all the States, when the national Convention was instituted, had expressly declared that the regulation of commerce ought to be vested in the general government. They had learned that to submit longer to the diverse commercial and revenue systems in force in New York on the one side of them, and in Pennsylvania on the other side, would be like remaining between the upper and the nether millstone. Their delegates in the national Convention had, it is true, acted with those of New York, in the long contest concerning the representative system, resisting at every step each departure from the principle of the Confederation, until the compromise was made which admitted the States to an equal representation in the Senate. Content with the security which this arrangement afforded, the people of New Jersey had the sagacity to perceive that their interests were no longer likely to be promoted by following in the lead of the Anti-Federalists of New York. Their delegates unanimously ratified the Constitution on the 12th of December, five days after the ratification of Pennsylvania. A few days later, there came from the far South news that the convention of Georgia had, with like unanimity, adopted the Constitution. Neither the people of the State, nor their delegates, could well have acted under the influence of what was taking place in the centre of the Union. Their situation was too remote for the reception, at that day, within the same fortnight, of the news of events that had occurred in Pennsylvania and New Jersey, and they could scarcely have read the great discussions that were going on in various forms of controversy in the cities of New York and Philadelphia, and throughout the Middle and the Eastern States. Wasted excessively during the Revolution, by the nature of the warfare carried on within her limits; left at the peace to contend with a large, powerful, and cruel tribe of Indians, that pressed upon her western settlements; and having her southern frontier bordering upon the unfriendly territory of a Spanish colony,--the State of Georgia had strong motives to lead her to embrace the Constitution of the United States, and found little in that instrument calculated to draw her in the opposite direction. Her delegates had resisted the surrender of control over the slave-trade, but they had acquiesced in the compromise on that subject, and there was in truth nothing in the position in which it was left that was likely to give the State serious dissatisfaction or uneasiness. The people of Georgia had something more important to do than to quarrel with their representatives about the principles or details of the system to which they had consented in the national Convention. They felt the want of a general government able to resist, with a stronger hand than that of the Confederation, the evils which pressed upon them.[417] Their assent was unanimously given to the Constitution on the 2d of January, 1788. The legislature of Connecticut had ordered a convention to be held on the 4th of January. When the elections were over, it was ascertained that there was a large majority in favor of the Constitution; but there was to be some opposition, proceeding principally from that portion of the people who resisted whatever tended to the vigor and stability of government,--a spirit that existed to some extent in all the New England States. When the convention of the State assembled, the principal duty of advocating the adoption of the Constitution devolved on Oliver Ellsworth, who had borne an active and distinguished part in its preparation. He found that the topic which formed the chief subject of all the arguments against the Constitution, was the general power of taxation which it would confer on the national government, and the particular power of laying imposts. Mr. Ellsworth was eminently qualified to explain and defend the proposed revenue system. While he contended for the necessity of giving to Congress a general power to levy direct taxes, in order that the government might be able to meet extraordinary emergencies, and thus be placed upon an equality with other governments, he demonstrated by public and well-known facts that an indirect revenue, to be derived from imposts, would be at once the easiest and most reliable mode of defraying the ordinary expenses of the government, because it would interfere less than any other form of taxation with the internal police of the States; and he argued, from sufficient data, that a very small rate of duty would be enough for this purpose.[418] Under his influence and that of Oliver Wolcott, Richard Law, and Governor Huntington, the Constitution was ratified by a large majority, on the 9th of January.[419] The action of Connecticut completed the list of the States that ratified the Constitution without any formal record of objections, and without proposing or insisting upon amendments. The opposition in these five States had been overcome by reason and argument, and they were a majority of the whole number of States whose accession was necessary to the establishment of the government. But a new act in the drama was to open with the new year. The conventions of Massachusetts, New York, and Virginia were still to meet, and each of them was full of elements of opposition of the most formidable character, and of different kinds, which made the result in all of them extremely doubtful. If all the three were to adopt the Constitution, still one more must be gained from the States of New Hampshire, Maryland, and North and South Carolina. The influence of each accession to the Constitution on the remaining States might be expected to be considerable; but, unfortunately, the convention of New Hampshire was to meet five months before those of Virginia and New York, and a large number of its members had been instructed to reject the Constitution. If New Hampshire and Massachusetts were to refuse their assent in the course of the winter, the States that were to act in the spring could scarcely be expected to withstand the untoward influence of such an example, which would probably operate with a constantly accelerating force throughout the whole number of the remaining States. The convention of Massachusetts commenced its session on the 9th of January, the same day on which that of Connecticut closed its proceedings. The State certainly held a very high rank in the Union. Her Revolutionary history was filled with glory; with sufferings cheerfully borne; with examples of patriotism that were to give her enduring fame. The blood of martyrs in that cause, which she had made from the first the cause of the whole country, had been poured profusely upon her soil, and in the earlier councils of the Union she had maintained a position of commanding influence. But there had been in her political conduct, since the freedom of the country was achieved, an unsteadiness and vacillation of which her former reputation gave no presage. In 1783, the legislature had refused to give the revenue powers asked for by the Congress, for the miserable reason that the Congress had granted half-pay for life to the officers of the Revolutionary army. In May, 1785, the legislature adopted a resolution for a convention of the States to consider the subject of enlarging the powers of the Federal Union, and in the following November they rescinded it. These, and other occurrences, when remembered, gave the friends of the Constitution elsewhere great anxiety, as they turned their eyes towards Massachusetts. They were fully aware, too, that the recent insurrection in that State, and the severe measures which had followed it, had created divisions in society which it would be difficult, if not impossible, to heal. But it was not easy for the most intelligent men out of the State to appreciate fully all the causes that exposed the Constitution of the United States to a peculiar hazard in Massachusetts, and made it necessary to procure its ratification by a kind of compromise with the opposition for a scheme of amendments. In no State was the spirit of liberty more jealous and exacting. In the midst of the Revolution, and led by the men who had carried on the profound discussions which preceded it,--discussions in which the natural rights of mankind and the civil rights of British subjects were examined and displayed as they had never been before,--the people of Massachusetts had framed a State constitution, filled with the most impressive maxims and the most solemn securities with which public liberty has ever been invested. Not content to trust obvious truths to implication, they expressly declared that government is instituted for the happiness and welfare of the governed, and they fenced it round not only with the chief restrictions gained by their English ancestors, from Magna Charta down to the Revolution of 1688, but with many safeguards which had not descended to them from Runnymede or Westminster. It may be that an anxious student of politics, examining the early constitution of Massachusetts,--happily in its most important features yet unchanged,--would pronounce it unnecessarily careful of personal rights and too jealous for the interests of liberty. But no intelligent mind, thoughtful of the welfare of society, can now think that to have been an excess of wisdom which formed a constitution of republican government that has so well withstood the assaults of faction and the levelling tendencies of a levelling age, and has withstood them because, while it carefully guarded the liberties of the people, it secured those liberties by institutions which stand as bulwarks between the power of the many and the rights of the few. It may hereafter become necessary for me to consider what degree of importance justly belongs to the amendments which the State of Massachusetts, and to those which other States, so impressively insisted ought to be made to the Constitution of the United States. Without at present turning farther aside from the narrative of events, I content myself here with observing, that, whether the alleged defects in the Constitution were important or unimportant, a people educated as the people of Massachusetts had been would naturally regard some provisions as essential which they did not find in the plan presented to them. The general aspect of parties in Massachusetts, down to the time when the convention met, has been already considered. In the convention itself there was a majority originally opposed to the Constitution; and if a vote had been taken at any time before the proposition for amendments was brought forward, the Constitution would have been rejected. The opposition consisted of a full representation of the various parties and interests already described as existing among the people of the State who were unfriendly to it. One contemporary account gives as many as eighteen or twenty members, who had actually been out in what was called Shays's "army." Whether this enumeration was strictly correct or not, it is well known that the western counties of the State sent a large number of men whose sympathies were with that insurrection, who were friends of paper money and tender laws, and enemies of any system that would promote the security of debts. The members from the province of Maine had their own special objects to pursue. In addition to these were the honest and well-meaning doubters, who had examined the Constitution with care and objected to it from principle. The anticipated leader of this miscellaneous host was that celebrated and ardent patriot of the Revolution, Samuel Adams. With all his energy and his iron determination of character, however, he could be cautious when caution was expedient. He had read the Constitution, and all the principal publications respecting it which had then appeared, and down to the time of the meeting of the convention he had maintained a good deal of reserve. But it was known that he disapproved of it. This remarkable man--often called the American Cato--was far better fitted to rouse and direct the storms of revolution, than to reconstruct the political fabric after revolution had done its work. He had the passionate love of liberty, fertility of resource, and indomitable will, which are most needed in a truly great leader of a popular struggle with arbitrary power. But that struggle over, his usefulness in an emergency like the one in which Massachusetts was now placed was limited to the actual necessity for the intervention of an extreme devotion to the maxims and principles of popular freedom. He believed that there was such a necessity, and he acted always as he believed. But his influence, at this time, was by no means commensurate with his power and reputation at a former day, and he appears to have wisely avoided a direct contest with the large body of very able men who supported the Constitution. That body of men would certainly have been, in any assembly convened for such a purpose, an overmatch in debate for Samuel Adams; for they were the civilians Fisher Ames, Parsons, King, Sedgwick, Gorham, Dana, Gore, Bowdoin, and Sumner, the Revolutionary officers Heath, Lincoln, and Brooks, and several of the most distinguished clergymen in the State. The names of the members who acted on the same side with Mr. Adams, and were then regarded as leaders of the opposition, have reached posterity in no other connection.[420] But some of the elements of which that opposition was composed could not be controlled by any superiority in debate, and were, therefore, little in need of great powers of discussion or great wisdom in council. So far as their objections related to the powers to be conferred on the general government, or to the structure of the proposed system, they could be answered, and many of them could be, and were, convinced. But with respect to what they considered the defects of the Constitution, theoretical reasoning, however able, could have no influence over men whose minds were made up; and it became, as the reader will see, necessary to make an effort to gain a majority by some course of action which would involve the concession that the proposed system required amendment. There were great hazards attending this course, in reference to its effect on other States, although it was not impossible to procure by it the ratification of this convention. Notwithstanding all that had detracted from the former high standing of the State,--notwithstanding the easy explanation that might be given of the influence of her late internal disturbances upon her subsequent political affairs,--she was still Massachusetts; still she was the eldest of all the States but one,--still she held in the sacred places of her soil the bones of the first martyrs to liberty,--still she was renowned, as she has ever been, for her intelligence,--still she wore a name of more than ordinary consideration among her sisters of the Confederacy. If it should go forth to New York, to Virginia, to the Carolinas, that Massachusetts had pronounced the Constitution unfit for the acceptance of a free people, or had declared that public liberty could not be preserved under it without the addition of provisions which its framers had not made, the effect might be disastrous beyond all previous calculation. The legislature of New York, in session at the same time with the convention of Massachusetts, was much divided on the question of submitting the Constitution to a convention, and it was the opinion of careful observers that the result in either way in the latter State would involve that in the former. In Virginia the elections for their convention were soon to take place. In Pennsylvania the minority were becoming restless under their defeat, and were agitating plans which looked to the obstruction of the government when an attempt should be made to organize it. The convention of South Carolina was not to meet until May, and North Carolina stood in an extremely doubtful position. A great weight of responsibility rested therefore upon the convention of Massachusetts. Its proceedings commenced with a desultory debate upon the several parts of the instrument, which lasted until the 30th of January; the friends of the Constitution having carefully provided, by a vote at the outset, that no separate question should be taken. The discussion of the various objections having been exhausted, Parsons[421] moved that the instrument be assented to and ratified. One or two general speeches followed this motion, and then Hancock, the President of the convention, descended from the chair, and, with some conciliatory observations, laid before it a proposition for certain amendments. This step was not taken by him upon his own suggestion merely, although he was doubtless very willing to be the medium of a reconciliation between the contending parties. He was at that time Governor of the State, and had been placed in the chair of the convention, partly in deference to his official station and his personal eminence, and partly because he held a rather neutral position with respect to the Constitution. These circumstances, as well as his Revolutionary distinction, led the friends of the Constitution to seek his intervention; and his love of popularity and deference made the office of arbitrator exceedingly agreeable to him. The selection was a wise one, for Hancock had great influence with the classes of men composing the opposition, and he could not be suspected of any undue admiration of the system the adoption of which he was to recommend. He proceeded with characteristic caution. It does not appear, from what is preserved of the remarks with which he presented his amendments, whether he intended they should become a condition precedent to the ratification, or should be adopted as a recommendation subsequent to the assent of the convention to the Constitution then before it. He brought them forward, he said, to quiet the apprehensions and remove the doubts of gentlemen, relying on their candor to bear him witness that his wishes for a good constitution were sincere. But the form of ratification which he proposed contained a distinct and separate acceptance of the Constitution, and the amendments followed it, with a recommendation that they "be introduced into the said Constitution." Samuel Adams, with much commendation of the Governor's proposition, immediately affected to understand it as recommending conditional amendments, and advocated it in that sense. Other members of the opposition understood it in the opposite sense, and, fearing its effect, insisted that the convention had no power to propose amendments, and that there could be no probability that, if recommended to the attention of the first Congress that might sit under the Constitution, they would ever be adopted. Upon both of these points, the arguments of the other side were sufficient to convince a few of the more candid members of the opposition, and the Constitution was ratified on the 7th of February, by a majority of nineteen votes,[422] the ratification being followed by a recommendation of certain amendments, and an injunction addressed to the representatives of the State in Congress to insist at all times on their being considered and acted upon in the mode provided by the fifth article of the Constitution. The smallness of the majority in favor of the Constitution was in a great degree compensated by the immediate conduct of those who had opposed it. Many of them, before the final adjournment, expressed their determination, now that it had received the assent of a majority, to exert all their influence to induce the people to anticipate the blessings which its advocates expected from it. They acted in accordance with their professions; and those portions of the people whose sentiments they had represented exhibited generally the same candor and patriotism, and acquiesced at once in the result. This course of the opposition in Massachusetts was observed elsewhere, and largely contributed to give to the action of the State, in proposing amendments, a salutary influence in some quarters, which would otherwise have probably failed to attend it. The amendments proposed by the convention of Massachusetts were, as was claimed by those who advocated them, of a general, and not a local character; but they were at the same time highly characteristic of the State. They may be divided into three classes. One of them embraced that general declaration which was afterwards incorporated with the amendments to the Constitution, and which expressly reserved to the States or the people the powers not delegated to the United States. Another class of them comprehended certain restraints upon the powers granted to Congress by the Constitution, with respect to elections, direct taxes, the commercial power, the jurisdiction of the courts, and the power to consent to the holding of titles or offices conferred by foreign sovereigns. The third class contemplated the two great provisions of a presentment by a grand jury, for crimes by which an infamous or a capital punishment might be incurred, and trial by jury in civil actions at the common law between citizens of different States. The people of Boston, although in general strongly in favor of the Constitution, had carefully abstained from every attempt to influence the convention. But now that the ratification was carried, they determined to give to the event all the importance that belonged to it, by public ceremonies and festivities. On the 17th of February, there issued from the gates of Faneuil Hall an imposing procession of five thousand citizens, embracing all the trades of the town and its neighborhood, each with its appropriate decorations, emblems, and mottoes. In the centre of this long pageant, to mark the relation of everything around it to maritime commerce, and the relation of all to the new government, was borne the ship Federal Constitution, with full colors flying, and attended by the merchants, captains, and seamen of the port.[423] On the following day, the rejoicings were terminated by a public banquet, at which each of the States that had then adopted the Constitution was separately toasted, the minorities of Connecticut and Massachusetts were warmly praised for their frank and patriotic submission, and strong hopes were expressed of the State of New York. In this manner the Federalists of Massachusetts wisely sought to kindle the enthusiasm of the country, and to conciliate the opinion of the States which were still to act, in favor of the new Constitution. The influence of their course did not fail in some quarters. In the convention of New Hampshire, which assembled immediately after that of Massachusetts was adjourned, although there was a majority who, either bound by instructions or led by their own opinions, would have rejected the Constitution if required to vote upon it immediately, yet that same majority was composed chiefly of men willing to hear discussion, willing to be convinced, and likely to feel the influence of what had occurred in the leading State of New England. There was a body of Federalists in New Hampshire acting in concert with the leading men of that party in Massachusetts. They caused the same form of ratification and the same amendments which had been adopted in the latter State, with some additional ones, to be presented to their own convention.[424] The discussions changed the opinions of many of the members, but it was not deemed expedient to incur the hazard of a vote. The friends of the Constitution found it necessary to consent to an adjournment, in order that the instructed delegates might have an opportunity to lay before their constituents the information which they had themselves received, and of which the people in the more remote parts of the State were greatly in need. Unfortunately, however, for the course of things in other States, the occurrence of a general election in New Hampshire made it necessary to adjourn the convention until the middle of June. We have seen what was the effect of this proceeding in Virginia, where it was both misunderstood and misrepresented. But it saved the Constitution in New Hampshire. Six States only, therefore, had adopted the Constitution at the opening of the spring of 1788. The convention of Maryland assembled at Annapolis on the 21st of April. The convention of South Carolina was to follow in May, and the conventions of Virginia and New York were to meet in June. So critical was the period in which the people of Maryland were to act, that Washington considered that a postponement of their decision would cause the final defeat of the Constitution; for if, under the influence of such a postponement, following that of New Hampshire, South Carolina should reject it, its fate would turn on the determination of Virginia. The people of Maryland appear to have been fully aware of the importance of their course. They not only elected a large majority of delegates known to be in favor of the Constitution, but a majority of the counties instructed their members to ratify it as speedily as possible, and to do no other act. This settled determination not to consider amendments, and not to have the action of the State misinterpreted, or its influence lost, gave great dissatisfaction to the minority. Their efforts to introduce amendments were disposed of quite summarily. The majority would entertain no proposition but the single question of ratification, which was carried by sixty-three votes against eleven, on the 28th of April. On the first of May, there were public rejoicings and a procession of the trades, in Baltimore, followed by a banquet, a ball, and an illumination. In this procession, the miniature ship "Federalist," which was afterwards presented to General Washington, and long rode at anchor in the Potomac opposite Mount Vernon, was carried, as the type of commerce and the consummate production of American naval architecture.[425] The next day a packet sailed from the port of Baltimore for Charleston, carrying the news of the ratification by Maryland.[426] In how many days this "coaster" performed her voyage is not known; but it is a recorded, though now forgotten, fact among the events of this period, that on her return to Baltimore, where she arrived on Saturday the 31st of May, the same vessel brought back the welcome intelligence, that on the 23d of that month, "at five o'clock in the afternoon," the convention of South Carolina had ratified the Constitution of the United States. A salute of cannon on Federal Hill, in the neighborhood of Baltimore, spread the joyful news far down the waters of the Chesapeake to the shores of Virginia, and bold express riders placed it in Philadelphia before the following Monday evening. Such was the anxiety with which the friends of the Constitution in the centre of the Union watched the course of events in the remaining States. The accession of South Carolina was naturally regarded as very important. Her delegates in the national Convention had assumed what might be thought, at home and elsewhere, to be a great responsibility. They had taken a prominent part in the settlement of the compromises which became necessary between the Northern and the Southern States. They had consented to a full commercial power, to be exercised by a majority in both houses of Congress; to a power to extinguish the slave-trade in twenty years; and to a power of direct and indirect taxation, exports alone excepted. Would the people of South Carolina consider the provisions made for their peculiar demands as equivalents for what had been surrendered? Would they acquiesce in a system founded in the necessities for local sacrifices, standing as they did at the extremity of the interests involved in the Southern side of the adjustment? It is not probable that the people of South Carolina, at the time of their adoption of the Constitution, supposed that they had any solid reasons for dissatisfaction with such of its arrangements as in any way concerned the subject of slavery. A good deal was said, _ad captandum_, by the opponents of the Constitution, on these points, but it does not appear to have been said with much effect. No man who has ever been placed by the State of South Carolina in a public position, has been more true to her interests and rights than General Pinckney; and General Pinckney furnished to the people of the State--speaking from his place in the legislature on his return from the national Convention--what he considered, and they received, as a complete answer to all that was addressed to their local fears and prejudices, on these particular topics. When he had shown that, by the universal admission of the country, the Constitution had given to the general government no power to emancipate the slaves within the several States, and that it had secured a right which did not previously exist, of recovering those who might escape into other States; that the slave-trade would remain open for twenty years, a period that would suffice for the supply of all the labor of that kind which the State would require; and that the admission of the blacks into the basis of representation was a concession in favor of the State, of singular importance as well as novelty;--he had disposed of every ground of opposition relating to these points. And so the people of the State manifestly considered. But there was one part of the arrangements included in the Constitution, on which they appear to have thought that they had more reason to pause; and it is quite important that we should understand both the grounds of their doubt, and the grounds on which they yielded their assent to this part of the system. South Carolina was then, and was ever likely to be, a great exporting State. Some of her people feared that, if a full power to regulate commerce by the votes of a majority in the two houses of Congress were to be exercised in the passage of a navigation act, the Eastern States, in whose behalf they were asked to grant such a power, would not be able to furnish shipping enough to export the products of the planting States. This apprehension arose entirely from a want of information; which some of the friends of the Constitution supplied, while it was under discussion. They showed that, if all the exported products of Virginia, the Carolinas, and Georgia were obliged to be carried in American bottoms, the Eastern States were then able to furnish more than shipping enough for the purpose; and that this shipping must also compete with that of the Middle States. Still it remained true, that the grant of the commercial power would enable a majority in Congress to exclude foreign vessels from the carrying trade of the United States, and so far to enhance the freights on the products of South Carolina. What then were the motives which appear to have led the convention of that State to agree to this concession of the commercial power? It is evident from the discussions which took place in the legislature, and which had great influence in the subsequent convention, that the attention of the people of South Carolina was not confined to the particular terms and arrangements of the compromises which took place in the formation of the Constitution. They looked to the propriety, expediency, and justice of a general power to regulate commerce, apart from the compromise in which it was involved. They admitted the commercial distresses of the Northern States; they saw the policy of increasing the maritime strength of those States, in order to encourage the growth of a navy; and they considered it neither prudent, nor fit, to give the vessels of all foreign nations a right to enter American ports at pleasure, in peace and in war, and whatever might be the commercial legislation of those nations towards the United States. For these reasons, a large majority of the people of South Carolina were willing to make so much sacrifice, be it more or less, as was involved in the surrender to a majority in Congress of the power to regulate commerce.[427] Still, the Constitution was not ratified without a good deal of opposition on the part of a considerable minority. As the convention drew towards the close of its proceedings, an effort was made to carry an adjournment to the following autumn, in order to gain time for the anticipated rejection of the Constitution by Virginia. This motion probably stimulated the convention to act more decisively than they might otherwise have done, for it touched the pride of the State in the wrong direction. After a spirited discussion it was rejected by a majority of forty-six votes, and the Constitution was thereupon ratified by a majority of seventy-six. Several amendments were then adopted, to be presented to Congress for consideration, three of which were substantially the same with three of those proposed by Massachusetts.[428] On the 27th of May, there was a great procession of the trades, in Charleston, in honor of the accession of the State, in which the ship Federalist, drawn by eight white horses, was a conspicuous object, as it had been in the processions of other cities. FOOTNOTES: [411] See an account of him, _ante_, Vol. I. Book III. Chap. XIV. [412] This was a mistake. On the 12th of September, Messrs. Gerry and Mason moved for a committee to prepare a bill of rights, but the motion was lost by an equal division of the States. Elliot, V. 538. [413] Mr. McKean, although his residence was at Philadelphia, represented the lower counties of Delaware in Congress from 1774 to 1783. In 1777 he was made Chief Justice of Pennsylvania, being at the same time a member of Congress and President of the State of Delaware. [414] The Constitution was ratified by a vote of 46 to 23. [415] This was at a meeting held at Harrisburg, September 3d, 1788. [416] The opposite parties were so much excited against each other, and the course of New Jersey was viewed with so much interest at Philadelphia among the "Federalists," that a story found currency and belief there, to the effect that Clinton, the Governor of New York, had offered the State of New Jersey, through one of its influential citizens, one half of the impost revenue of New York, if she would reject the Constitution. The preposterous character of such a proposition stamps the rumor with gross improbability. But its circulation evinces the anxiety with which the course of New Jersey was regarded in the neighboring States, and it is certain that the opposition in New York made great efforts to influence it. [417] The situation of Georgia was brought to the notice of Washington immediately after his first inauguration as President of the United States, in an Address presented to him by the legislature of the State, in which they set forth two prominent subjects on which they looked for protection to "the influence and power of the Union." One of these was the exposure of their frontier to the ravages of the Creek Indians. The other was the escape of their slaves into Florida, whence they had never been able to reclaim them. Both of these matters received the early attention of Washington's administration. [418] He stated the annual expenditure of the government, including the interest on the foreign debt, at £260,000 (currency), and then showed that, in the three States of Massachusetts, New York, and Pennsylvania, £160,000 or £180,000 per annum had been raised by impost. [419] Fragments only of the debates in the convention of Connecticut are known to be preserved. They may be found in the second volume of Elliot's collection. [420] Three of them, Widgery, Thompson, and Nason, were from Maine; there was a Dr. Taylor from the county of Worcester, and a Mr. Bishop from the county of Bristol. These gentlemen carried on the greater part of the discussion against the Constitution. [421] Theophilus Parsons, afterwards the celebrated Chief Justice of Massachusetts. [422] Yeas, 187; nays, 168. [423] This was the first of a series of similar pageants, which took place in the other principal cities of the Union, in honor of the ratification of the Constitution. [424] The form of ratification and the amendments introduced by Hancock into the convention of Massachusetts were drawn by Theophilus Parsons. They were probably communicated to General Sullivan, the President of the New Hampshire convention, by his brother, James Sullivan, an eminent lawyer of Boston, afterwards Governor of Massachusetts. The reader should compare the Massachusetts amendments with those of the other States whose action followed that of Massachusetts, for the purpose of seeing the influence which they exerted. (All the amendments may be found in the Journals of the Old Congress, Vol. XIII., Appendix.) See also _post_, Chap. III., as to the effect of the course of Massachusetts on the mind of Jefferson. [425] This little vessel sailed from Baltimore on the 1st of June, and arrived at Mount Vernon, "completely rigged and highly ornamented," on the 8th. It was a fine specimen of the then state of the mechanic arts. See an account of it in Washington's Works, IX. 375, 376. [426] There was then no land communication between the two places, that could have carried intelligence in less than a month. A letter written by General Pinckney to General Washington on the 24th of May, announcing the result in South Carolina, was more than four weeks on its way to Mount Vernon. (Washington's Works, IX. 389.) General Washington had received the same news by way of Baltimore soon after its arrival there. [427] See the course of argument of Edward Rutledge, General Pinckney, Robert Barnwell, Commodore Gillon, and others, as given in Elliot, IV. 253-316. [428] See the Amendments, Journals of the Old Congress, Vol. XIII., Appendix. CHAPTER III RATIFICATIONS OF NEW HAMPSHIRE, VIRGINIA, AND NEW YORK, WITH PROPOSED AMENDMENTS. South Carolina was the eighth State that had ratified the Constitution, and one other only was required for its inauguration. In this posture of affairs the month of May in the year 1788 was closed. An intense interest was to be concentrated into the next two months, which were to decide the question whether the Constitution was ever to be put into operation. The convention of Virginia was to meet on the 2d, and that of New York on the 17th, of June; the convention of New Hampshire stood adjourned to the 18th of the same month. The latter assembly was to meet at Concord, from which place intelligence would reach the Middle and Southern States through Boston and the city of New York. The town of Poughkeepsie, where the convention of New York was to sit, lay about midway between the cities of Albany and New York, on the east bank of the Hudson. The land route from the city of New York to Richmond, where the convention of Virginia was to meet, was of course through the city of Philadelphia. The distance from Concord to Poughkeepsie, through Boston, Springfield, and Hudson, was about two hundred and fifty miles. The distance from Poughkeepsie to Richmond, through the cities of New York, Philadelphia, and Baltimore, was about four hundred and fifty miles. The public mails, over any part of these distances, were not carried at a rate of more than fifty miles for each day, and over a large part of them they could not have been carried so fast. The information needed at such a crisis could not wait the slow progress of the public conveyances. No one could tell how long the conventions of New York and Virginia might be occupied with the momentous question that was to come before them. It was evident, however, that there was to be a great struggle in both of them, and it was extremely important that intelligence of the final action of New Hampshire should be received in both at the earliest practicable moment. For, whatever might be the weight due to the example of New Hampshire under other circumstances, if, before the conventions of New York and Virginia had decided, it should appear that nine States had ratified the Constitution, the course of those bodies might be materially influenced by a fact of so much consequence to the future position of the Union, and to the relations in which those two States were to stand to the new government. It was equally important, too, that whatever might occur in the conventions of New York and Virginia should be known respectively in each of them, as speedily as possible. About the middle of May, therefore, Hamilton arranged with Madison for the transmission of letters between Richmond and Poughkeepsie, by horse expresses; and by the 12th of June he had made a similar arrangement with Rufus King, General Knox, and other Federalists at the East, for the conveyance from Concord to Poughkeepsie of intelligence concerning the result in New Hampshire. A very full convention of delegates of the people of Virginia assembled at Richmond on the 2d of June, embracing nearly all the most eminent public men of the State, except Washington and Jefferson. All parties felt the weight of responsibility resting upon the State. Every State that had hitherto acted finally on the subject had ratified the Constitution; in three of them it had been adopted unanimously; in several of the others it had been sanctioned by large majorities; and in those in which amendments had been proposed, they had not been made conditions precedent to the adoption. So far, therefore, as the voice of any State had pronounced the Constitution defective, or dangerous to any general or particular interest, the mode of amendment provided by it, to be employed after it had gone into operation, had been relied upon as sufficient and safe. The opposition in Virginia were consequently reduced to this dilemma;--they must either take the responsibility of rejecting the Constitution entirely, or they must assume the equally hazardous responsibility of insisting that the ratification of the State should be given only upon the condition of previous amendments. They were prepared to do both, or either, according to the prospects of success; for their convictions were fixed against the system proposed; their abilities, patriotism, courage, and personal influence were of a high order; and their devotion to what they deemed the interests of Virginia was unquestionable. They were led, as I have already said they were to be, by Patrick Henry, whose reputation had suffered no abatement since the period when he blazed into the darkened skies of the Revolution,--when his untutored eloquence electrified the heart of Virginia, and became, as has been well said, even "a cause of the national independence."[429] He had held the highest honors of the State, but had retired, poor, and worn down by twenty years of public service, to rescue his private affairs by the practice of a profession which, in some of its duties, he did not love, and for which he had, perhaps, a single qualification in his amazing oratorical powers. His popularity in Virginia was unbounded. It was the popularity that attends genius, when thrown with heart and soul, and with every impulse of its being, into the cause of popular freedom; and it was a popularity in which reverence for the stern independence and the self-sacrificing spirit of the patriot was mingled with admiration for the splendid gifts of oratory which Nature, and Nature alone, had bestowed upon him. But Mr. Henry was rightly appreciated by his contemporaries. They knew that, though a wise man, his wisdom lacked comprehensiveness, and that the mere intensity with which he regarded the ends of public liberty was likely to mislead his judgment as to the means by which it was to be secured and upheld. The chief apprehension of his opponents, on this important occasion, was lest the power of his eloquence over the feelings or prejudices of his auditory might lead the sober reflections of men astray. He was at this time fifty-two years of age. Although feeling or affecting to feel himself an old and broken man, he was yet undoubtedly master of all his natural powers. Those powers he exerted to the utmost, to defeat the Constitution in the convention of Virginia. He employed every art of his peculiar rhetoric, every resource of invective, of sarcasm, of appeal to the fears of his audience for liberty; every dictate of local prejudice and State pride. But he employed them all with the most sincere conviction that the adoption of the proposed Constitution would be a wrong and dangerous step. Nor is it surprising that he should have so regarded it. He had formed to himself an ideal image which he was fond of describing as the American spirit. This national spirit of liberty, erring perhaps at times, but in the main true to right and justice as well as to freedom, was with him a kind of guardian angel of the republic. He seems to have considered it able to correct its own errors without the aid of any powerful system of general government,--capable of accomplishing in peace all that it had unquestionably effected for the country in war. As he passed out of the troubles and triumphs of the Revolution into the calmer atmosphere of the Confederation, his reliance on this American spirit, and his jealousy for the maxims of public liberty, led him to regard that system as perfect, because it had no direct legislative authority. He could not endure the thought of a government, external to that of Virginia, and yet possessed of the power of direct taxation over the people of the State. He regarded with utter abhorrence the idea of laws binding the people of Virginia by the authority of the people of the United States; and thinking that he saw in the Constitution a purely national and consolidated government, and refusing to see the federal principle which its advocates declared was incorporated in its system of representation, he shut his eyes resolutely upon all the evils and defects of the Confederation, and denounced the new plan as a monstrous departure from the only safe construction of a Union. He belonged, too, to that school of public men--some of whose principles in this respect it is vain to question--who considered a Bill of Rights essential in every republican government that is clothed with powers of direct legislation. On the first day of the session, at the instance of Mr. Mason, the convention determined not to take a vote upon any question until the whole Constitution had been debated by paragraphs; but the discussions in fact ranged over the whole instrument without any restriction. The opposition was opened by Henry, in a powerful speech of a general nature, in which he demanded the reasons for such a radical change in the character of the general government. That the new plan was a consolidated government, and not a confederacy, he held to be indisputable. The language of the preamble, which said _We, the People_, and not _We, the States_, made this perfectly clear. But States were the characteristics and the soul of a confederation. If States were not to be the agents of this new compact, it must be one great, consolidated, national government of the people of all the States. This perilous innovation, altogether beyond the powers of the Convention which had proposed it, had given rise to differences of opinion which had gone to inflammatory resentments in different parts of the country. He denied altogether the existence of any necessity for exposing the public peace to such a hazard. As soon as Henry had sat down, the Governor, Edmund Randolph, rose, to place himself in a position of some apparent inconsistency. He had, as we have seen, refused to sign the Constitution. On his return to Virginia, he had addressed a long, exculpatory letter to the Speaker of the House of Delegates, giving his reasons for this refusal; which were, in substance, that he considered the Constitution required important amendments, and that, as it would go to the conventions of the States to be accepted or rejected as a whole, without power to amend, he thought that his signature would preclude him from proposing the changes and additions which he deemed essential. This letter had attracted much attention both in and out of Virginia, and Randolph was consequently, up to this moment, regarded as a firm opponent of the Constitution. He chose, however, to incur the charge of that kind of inconsistency which a statesman should never hesitate to commit, when he finds that the public good is no longer consistent with his adherence to a former opinion. He declared that the day of previous amendments had passed. The ratification of the Constitution by eight States had placed Virginia and the country in a critical position. If the Constitution should not be adopted by the number of States required to put it into operation, there could be no Union; and if it were to be ratified by that number, and Virginia were to reject it, she would have at least two States at the south of her which would belong to a confederacy of which she would not be a member. He should, therefore, vote for the unconditional adoption of the Constitution, looking to future amendments, although he had little expectation that they would be made. This announcement took the opposition by surprise. But they relaxed none of their efforts. They subjected every part of the Constitution to a rigid scrutiny, and to the most subtle course of reasoning, as well as to one which addressed the prejudices of the common mind. Some of the most important only of the topics on which they enlarged can be noticed here. Their first and chief object was to show that the Constitution presented a national and consolidated government, in the place of the Confederation, and that under such a government the liberties of the people of the States could not be secure. This character of the proposed government Mr. Mason deduced from the power of direct taxation, which, he contended, entirely changed the confederacy into one consolidated government. This power, being at discretion and unrestrained, must carry everything before it. The general government being paramount to, and in every respect more powerful than, the State governments, the latter must give way; for two concurrent powers of direct taxation cannot long exist together. Assuming that taxes were to be levied for the use of the general government, the mode in which they were to be assessed and collected was of the utmost consequence, and it ought not to be surrendered by the people of Virginia to those who had neither a knowledge of their situation nor a common interest with them. He would cheerfully acquiesce in giving an effectual alternative for the power of direct taxation. He would give the general government power to demand their quotas of the States, with an alternative of laying direct taxes in case of non-compliance. The certainty of this conditional power would, in all probability, prevent the application of it, and the sums necessary for the Union would then be raised by the States, and by those who would best know how they could be raised. Mr. Henry took a broader ground. He argued that the Constitution presented a consolidated government, because it spoke in the name of the People, and not in the name of the States. It was neither a monarchy like England,--a compact between prince and people, with checks on the former to secure the liberty of the latter; nor a confederacy like Holland,--an association of independent States, each retaining its individual sovereignty; nor yet a democracy, in which the people retain securely all their rights. It was an alarming transition from a confederacy to a consolidated government. It was a step as radical as that which separated us from Great Britain. The rights of conscience, trial by jury, liberty of the press, all immunities and franchises, all pretensions to human rights and privileges, were rendered insecure, if not lost, by such a transition. It was said that eight States had adopted it. He declared that, if twelve States and a half had adopted it, he would, with manly firmness, and in spite of an erring world, reject it. "You are not to inquire," said he, "how your trade may be increased, or how you are to become a great and prosperous people, but how your liberties may be secured";--and then, kindling with the old fire of his earlier days, and with the recollection of what he had done and suffered for the liberties of his country, he broke forth in one of his most indignant and impassioned moods.[430] Madison, always cool, clear, and sensible, answered these objections. He described the new government as having a mixed character. It would be in some respects federal, in others consolidated. The manner in which it was to be ratified established this double character. The parties to it were to be the people, but not the people as composing one great society, but the people as composing thirteen sovereignties. If it were a purely consolidated government, the assent of a majority of the people would be sufficient to establish it. But it was to be binding on the people of a State only by their own separate consent; and if adopted by the people of all the States, it would be a government established, not through the intervention of their legislatures, but by the people at large. In this respect, the distinction between the existing and the proposed governments was very material. The mode in which the Constitution was to be amended also displayed its mixed character. A majority of the States could not introduce amendments, nor yet were all the States required; three fourths of them must concur in alterations; and this constituted a departure from the federal idea. Again, the members of one branch of the legislature were to be chosen by the people of the States in proportion to their numbers; the members of the other were to be elected by the States in their equal and political capacities. Had the government been completely consolidated, the Senate would have been chosen in the same way as the House; had it been completely federal, the House would have been chosen in the same way as the Senate. Thus it was of a complex nature; and this complexity would be found to exclude the evils of absolute consolidation and the evils of a mere confederacy. Finally, if Virginia were separated from all the States, her power and authority would extend to all cases; in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the general government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction. With respect to the powers proposed to be conferred on the new government, he conceived that the question was whether they were necessary. If they were, Virginia was reduced to the dilemma of either submitting to the inconvenience which the surrender of those powers might occasion, or of losing the Union. He then proceeded to show the necessity for the power of direct taxation; and in answer to the apprehended danger arising from this power united with the consolidated nature of the government,--thus giving it a tendency to destroy all subordinate or separate authority of the States,--he admitted that, if the general government were wholly independent of the governments of the States, usurpation might be expected to the fullest extent; but as it was not so independent, but derived its authority partly from those governments, and partly from the people,--the same source of power,--there was no danger that it would destroy the State governments. In this manner, extending to all the details of the Constitution, the discussion proceeded for nearly a week, the opposition aiming to show that at every point it exposed the liberties of the people to great hazards; Henry sustaining nearly the whole burden of the argument on that side, and fighting with great vigor against great odds.[431] At length, finding himself sorely pressed, he took advantage of an allusion made by his opponents to the debts due from the United States to France, to introduce the name of Jefferson. "I might," said he, "not from public authority, but from good information, tell you that his opinion is that you reject this government. His character and abilities are in the highest estimation; he is well acquainted in every respect with this country; equally so with the policy of the European nations. This illustrious citizen advises you to reject this government till it be amended. His sentiments coincide entirely with ours. His attachment to, and services done for, this country are well known. At a great distance from us, he remembers and studies our happiness. Living in splendor and dissipation, he thinks yet of Bills of Rights,--thinks of those little, despised things called _maxims_. Let us follow the sage advice of this common friend of our happiness."[432] At the time when Mr. Henry made this statement, he had seen a letter written by Mr. Jefferson from Paris, in the preceding February, which was much circulated among the opposition in Virginia, and in which Mr. Jefferson had expressed the hope that the first nine conventions might accept the Constitution, and the remaining four might refuse it, until a Declaration of Rights had been annexed to it.[433] Mr. Henry chose to construe this into an advice to _Virginia_ to reject the Constitution. But this use of Mr. Jefferson's opinion was not strictly justifiable, since Virginia, in the actual order of events, might be the ninth State to act; for the convention of New Hampshire was not to reassemble until nearly three weeks after the first meeting of that of Virginia, in which Mr. Henry was then speaking. The friends of the Constitution, therefore, became somewhat restive under this attempt to employ the influence of Jefferson against them. Without saying anything disrespectful of him, but, on the contrary, speaking of him in the highest terms of praise and honor, they complained of the impropriety of introducing his opinion,--saying that, if the opinions of important men not within that convention were to govern its deliberations, they could adduce a name at least equally great on their side;[434] and they then contended that Mr. Jefferson's letter did not admit of the application that had been given to it.[435] But the truth was, that the assertions of his opponents respecting New Hampshire, and the ambiguous form of Mr. Jefferson's opinion, gave Henry all the opportunity he wanted to employ that opinion for the purpose for which he introduced it. "You say," said he, "that you are absolutely certain New Hampshire will adopt this government. Then she will be the ninth State; and if Mr. Jefferson's advice is of any value, and this system requires amendments, we, who are to be one of the four remaining States, ought to reject it until amendments are obtained."[436] Notwithstanding the efforts of Madison to counteract this artifice, it gave the opposition great strength, because it enabled them to throw the whole weight of their arguments against the alleged defects and dangers of the Constitution into the scale of an absolute rejection. Mr. Jefferson's subsequent opinion, formed after he had received intelligence of the course of Massachusetts, had not then been received, and indeed did not reach this country until after the convention of Virginia had acted.[437] The opposition went on, therefore, with renewed vigor, to attack the Constitution in every part which they considered vulnerable. Among the topics on which they expended a great deal of force was that of the navigation of the Mississippi. They employed this subject for the purpose of influencing the votes of members who represented the interests of that part of Virginia which is now Kentucky. They first extorted from Madison, and other gentlemen, who had been in the Congress of the Confederation, a statement of the negotiations which had nearly resulted in a temporary surrender of the right in the Mississippi to Spain.[438] They then made use of the following argument. It had appeared, they said, from those transactions, that the Northern and Middle States, seven in number,[439] were in favor of bartering away this great interest for commercial privileges and advantages; that those States, particularly the Eastern ones, would be influenced further by a desire to suppress the growth of new States in the Western country, and to prevent the emigration of their own people thither, as a means of retaining the power of governing the Union; and that the surrender of the Mississippi could be made by treaty, under the Constitution, by the will of the President and the votes of ten Senators,[440] whereas, under the Confederation, it never could be done without the votes of nine States in Congress. It must be allowed that there had been much in the history of this matter on which harsh reflections could be made by both sections of the Union. But it was not correct to represent the Eastern and Middle States as animated by a desire to prevent the settlement of the Western country, or to say that they would be ready at any time to barter away the right in the Mississippi. Seven of the States had consented, in a time of war and of great peril, to the proposal of a temporary surrender of the right to Spain, just when it was supposed that negotiations between Spain and Great Britain might result in a coalition which would deprive us of the river for ever, and when it was thought that a temporary cession would fix the permanent right in our favor.[441] This was undoubtedly an error; but it was one from which the country had been saved, by the disputes which arose respecting the constitutional power of seven States to give instructions for a treaty, and by the prospect of a reconstruction of the general government.[442] Now, therefore, that an entirely new constitutional system had been prepared, the real question, in relation to this very important subject, was one of a twofold character. It involved, first, the moral probabilities respecting the wishes and policy of a majority of the States; and, secondly, a comparison of the means afforded by the Constitution for protecting the national right to the Mississippi, with those afforded by the Confederation,--assuming that any State or States might wish to surrender it. Upon this question Mr. Madison made an answer to the opposition, which shows how accurately he foresaw the relations between the western and the eastern portions of the Union, and how justly he estimated the future working of the Constitution with respect to the preservation of the Mississippi, or any other national right. If interest alone, he said, were to govern the Eastern States, they must derive greater advantage from holding the Mississippi than even the Southern States; for if the carrying trade were their natural province, it must depend mainly on agriculture for its support, and agriculture was to be the great employment of the Western country. But in addition to this security of local interest, the Constitution would make it necessary for two thirds of all the Senators present--and those present would represent all the States, if all attended to their duty--to concur in every treaty. The President, who would represent the people at large, must also concur. In the House of Representatives, the landed, rather than the commercial interest, would predominate; and the House of Representatives, although not to be directly concerned in the making of treaties, would have an important influence in the government. A weak system had produced the project of surrendering the Mississippi; a strong one would remove the inducement.[443] In the midst of these discussions, and while the opposition were making every effort to protract them until the 23d of June,--when the assembling of the legislature would afford a colorable pretext for an adjournment,--Colonel Oswald of Philadelphia arrived at Richmond, with letters from the Anti-Federalists of New York and Pennsylvania to the leaders of that party at Richmond, for the purpose of concerting a plan for the postponement of the decision of Virginia until after the meeting of the convention of New York. It was supposed that, if this could be effected, the opponents of the Constitution in New York would be able to make some overture to the opposition in Virginia, for the same course of action in both States. If this could not be brought about, it was considered by the opposition at Richmond that the chances of obtaining a vote for previous amendments would be materially increased by delay. The parties in their convention were nearly balanced, at this time. Mr. Madison estimated the Federal majority at not more than three or four votes, if indeed the Federalists had a majority, on the 17th of June, the day on which the convention of New York was to meet.[444] But we must now leave the convention of Virginia, and turn our eyes to the pleasant village on the banks of the Hudson, where the convention of New York was already assembling. Hamilton was there, and was its leading spirit. How vigilant and thoughtful he was, we know;--sometimes watching for the messenger who might descend the eastern hills with reports from New Hampshire,--sometimes turning to the South and listening for the footfall of his couriers from Virginia;--but always preparing to meet difficulties, always ready to contest every inch of ground, and never losing sight of the great end to be accomplished. The hours were slow and heavy to him. The lines of horse-expresses which he had so carefully adjusted, and at whose intersection he stood to collect the momentous intelligence they would bring him, were indeed a marvel of enterprise at that day; but how unlike were they to the metallic lines that now daily gather for us, from all the ends of the land and with the speed of lightning, minute notices of the most trivial or the most important events! Still, such as his apparatus was, it was all that could be had; and he awaited, alike with a firm patience and a faithful hope, for the decisive results. Even at this distance of time, we share the fluctuations of his anxious spirit, and our patriotism is quickened by our sympathy. Rarely, indeed, if ever, was there a statesman having more at stake in what he could not personally control, or greater cause for solicitude concerning the public weal of his own times or that of future ages, than Hamilton now had. His own prospects of usefulness, according to the principles which had long guided him, and the happiness or the misery of his country, were all, as he was deeply convinced, involved in what might happen within any hour of those few eventful days. The rejection of the Constitution by Virginia would, in all probability, cause its rejection by New York. Its rejection by those States would, as he sincerely believed, be followed by eventual disunion and civil war. But if the Constitution could be established, he could see the way open to the happiness and welfare of the whole Union; for although it was not in all respects the system that he would have preferred, he had shown, in the Federalist, how profoundly he understood its bearing upon the interests of the country, into what harmony he could bring its various provisions, and what powerful aid he could give in adjusting it into its delicate relations to the States. He had, too, already conceived the hope that its early administration might be undertaken by Washington; and with the government in the hands of Washington, Hamilton could foresee the success which to us is now historical. To say that Hamilton was ambitious, is to say that he was human; and he was by no means free from human imperfections. But his was the ambition of a great mind, regulated by principle, and made incapable, by the force and nature of his convictions, of seeking personal aggrandizement through any course of public policy of which those convictions were not the mainspring and the life. In no degree is the character of any other American statesman undervalued or disparaged, when I insist on the importance to all America, through all time, of Hamilton's public character and conduct in this respect. It was because his future opportunities for personal distinction and usefulness were now evidently at stake in the success of a system that would admit of the exercise of his great powers in the service of the country,--a system that would afford at once a field for their exercise and for the application of his political principles,--and because he could neither seek nor find distinction in a line of politics which tended to disunion,--that his position at this time is so interesting and important. As a citizen of New York, too, his position was personally critical. He had carried on a vigorous contest with the opponents of the Constitution in that State; he had encountered obloquy and misrepresentation and rancor,--perhaps he had provoked them. He had told the people of the State, for years, that they had listened to wrong counsels, when they had lent themselves to measures that retarded the growth of a national spirit and an efficient general government. The correctness of his judgment was now, therefore, openly and palpably in the issue. His public policy, with reference to the relations of the State to the Union, was now to stand, or to fall, with the Constitution proposed. When he entered the convention of the State, he was convinced that the Anti-Federalists were determined that New York should not become a member of the new Union, whatever might be done by the other States.[445] He had also received information, which led him to believe that the Governor, Clinton, had in conversation declared the Union unnecessary; but of this, if true, he could make no public use. His suspicions were certainly justified by the tendency of the arguments made use of by the opposition, during the few first days of the session; for it was the tendency of those arguments to maintain the idea that New York could very well stand alone, even if the Constitution should be established by nine States, she refusing to be one of them. With this view, they pressed the consideration under which they had all along acted, that the Confederation, if amended, would be sufficient for all the proper purposes of a general government; and their plan for such an amendment of the Confederation was, to provide that its requisitions for money should continue to be made as they had been, and that Congress should have the new power of compelling payment by force, when a State had refused to comply with a requisition. Hamilton answered this suggestion with great energy. It is inseparable, he said, from the disposition of bodies which have a constitutional power of resistance, to inquire into the merits of a law. This had ever been the case with the federal requisitions. In this examination, the States, unfurnished with the lights which directed the deliberations of the general government, and incapable of embracing the general interests of the Union, had almost uniformly weighed the requisitions by their own local interests, and had only executed them so far as answered their particular convenience or advantage. But if we have national objects to pursue, we must have national revenues. If requisitions are made and are not complied with, what is to be done? To coerce the States would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another. A federal standing army, then, must enforce the requisitions, or the federal treasury would be left without supplies and the government without support. There could be no cure for this great evil, but to enable the national laws to operate on individuals, like the laws of the States. To take the old Confederation as the basis of a new system, and to trust the sword and the purse to a single assembly organized upon principles so defective,--giving it the full powers of taxation and the national forces,--would be to establish a despotism. These considerations showed clearly that a totally different government, with proper powers and proper checks and balances, must be established. The convention soon afterwards passed to an animated discussion on the system of representation proposed in the Constitution, and while an amendment relating to the Senate was pending, on the 24th of June, Hamilton received intelligence from the East, that on the 21st the convention of New Hampshire had ratified the Constitution. Up to this moment, the opposition, while disclaiming earnestly all wish to bring about a dissolution of the Union, or to prevent the establishment of some firm and efficient government, had still continued, in every form, to press a line of argument which tended to produce the rejection of the Constitution proposed; and it was evident that their opponents could throw upon them the responsibility of a dissolution of the Union only by a deduction from the tendency of their reasoning. But now that the Constitution had been adopted by the number of States which its provisions required for its establishment, the Federalists determined that the opposition should publicly meet the issue raised by the new aspect of affairs, which was to determine whether the State of New York should or should not place itself out of the pale of the new confederacy,--whether it should or should not stand in a hostile attitude towards the nine States which had thus signified their determination to institute a new government. Accordingly, on the next day, Chancellor Livingston formally announced in the convention the intelligence that had been received from New Hampshire, which, he said, had evidently changed the circumstances of the country and the ground of the present debate. He declared that the Confederation was now dissolved. Would they consider the situation of their country? However some might contemplate disunion without pain, or flatter themselves that some of the Southern States would form a league with them, he could not look without horror at the dangers to which any such confederacy would expose the State of New York. This dilemma embarrassed, but did not subdue, the opposition. They reiterated their denial of a purpose to produce a dissolution of the Union, doubtless with entire sincerity; but they continued the argument which was designed to show that the State ought not to adopt a system dangerous to liberty, under a fear of the situation in which it might be placed. Here, then, the reader should pause for a moment, in order to form a just appreciation of the course pursued by Hamilton, in this altered aspect of affairs, when nothing remained to be done but to get the State of New York, if possible, into the new Union. We have now the means of knowing precisely how he estimated the chances of succeeding in this effort. On the 27th, while the discussion was still going on, he wrote to Madison as follows: "There are some slight symptoms of relaxation in some of the leaders, which authorizes a gleam of hope, if you do well; but certainly I think not otherwise."[446] At the same time, we know that his latest news from Virginia was not encouraging.[447] How easy, then, perhaps natural, it would have been for him to have abandoned this "gleam of hope,"--to have turned his back upon the State and all its cabals,--to have left the Anti-Federalists to determine the fate of New York, and to have transferred himself to what was then the larger community, the great State of Pennsylvania, or to any of the other States which had adopted the Constitution! He must have been received anywhere with the consideration due to his high reputation, his abilities, his public services, and his acknowledged patriotism. He must have been regarded, in any State that had accepted the new government, as a person whose assistance was indispensable to its success; and so he would have been looked upon by the main body of the people throughout the new confederacy. He had no ties of office to bind him to the State of New York. He held one of her seats in the Congress of the Confederation, but that was a body which must soon cease to exist. His political opponents had an undoubted majority in the State. The social ties which had bound him to her soil could have been severed. He could have left her, therefore, to the counsels of his adversaries, and could have sought and found for himself a career of ambition in the new sphere that was open to receive him. That career would have tempted men of an inferior mould, and would have seen them yield to the temptation perhaps the more readily, because the conflicts that would have been inevitable between rival confederacies would have presented fresh fields for exertion and personal energy, new excitements and new adventures. It is, too, a mournfully interesting reflection, that if Hamilton had then cut himself free from the entanglements of the local politics of New York by a change of residence, he probably could never have been drawn into that miserable quarrel with the wretch who in after years planned his destruction, and who gained by it the execrable distinction of having taken the most important life that has ever fallen by the assassination of the duel, since its opportunities for murder have been known among men. But with whatever melancholy interest we may pursue such a suggestion of what Hamilton might have done, it needs but to be made, in order to show how far he stood above the reach of such a temptation. From his first entrance, in boyhood, into public life, his patriotism had comprehended nothing less than the whole of the United States. Whatever may be thought of his policy, either before or after the Constitution was established, no just man will deny its comprehensive nationality. He now saw that no partial confederacy of the States could be of any permanent value. He had no favorite theories involved in the Constitution, no peculiar experiments that he wished to try. He embraced it, because he believed in its capacity to unite the whole of the States, to concentrate and harmonize their interests, and to accomplish national objects of the utmost importance to their welfare. It could, without doubt, be inaugurated and put into operation without the concurrence of New York. But to leave that, or any other State near the geographical centre of the Union, out of the confederacy, would be to leave its sovereignty and rights exposed to perpetual collision with the new government. No public or private purpose could have induced Hamilton to abandon any effort that might prevent such a result. He still labored, therefore, with those who were associated with him, to procure an adoption of the Constitution by the State of New York; and we must bear in mind the vast importance of her action, and the difficulties with which he had to contend, that we may take a just view of the concessions to the opposition which he seems at one stage of the crisis to have been obliged to consider. But we must now leave him in the midst of the embarrassments by which he was surrounded, to follow his messenger, whom he instantly despatched, on the 24th, with letters to Madison at Richmond, announcing the news of the ratification by New Hampshire. The courier passed through the city of New York on the 25th, and reached Philadelphia on the 26th. The newspapers of the latter city immediately cried out, "The reign of anarchy is over," and the popular enthusiasm rose to the highest point. The courier passed on to the South; but the convention of Virginia had, in fact, ratified the Constitution before he arrived in Philadelphia. Thus, while New Hampshire, in the actual order of events, was the ninth State to adopt the Constitution, yet Virginia herself, so far as the members of her convention were informed, appeared at the time of their voting to be the ninth adopting State. It is certain that they acted without any real knowledge of what had taken place in New Hampshire, although there may have been random assertions of what nobody at Richmond could then have known.[448] The result was brought about in Virginia by the force of argument, and because the friends of the Constitution were at last able to reduce the issue to the single question of previous or subsequent, that is, of conditional or recommendatory, amendments. As the State appeared likely to be the ninth State to act, and they could insist that, if she rejected the Constitution, she must bear the responsibility of defeating the establishment of the new government,--a consequence which they could reasonably predict,--they had a high vantage-ground from which to address the reason and patriotism of the assembly. Henry and the other leaders of the opposition fought valiantly to the last. When the whole subject had been exhausted, the friends of the Constitution presented the propositions on which they were willing to rest the action of the State, and which declared, in substance, that the powers granted under the proposed Constitution are the gift of the people, and that every power not granted thereby remains with them, and at their will,--consequently that no right can be abridged, restrained, or modified by the general government or any of its departments, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States; that the Constitution ought, therefore, to be ratified, but that whatsoever amendments might be deemed necessary ought to be recommended to the consideration of the first Congress that should assemble under the Constitution, to be acted upon according to the mode prescribed therein. Mr. Henry, on the other hand, brought forward a counter project, by which he proposed to declare that, previous to the ratification of the Constitution, a Declaration of Rights, asserting and securing from encroachment the great principles of civil and religious liberty, and the inalienable rights of the people, together with amendments to the most exceptionable parts of the Constitution, ought to be referred by the convention of Virginia to the other States in the American confederacy for their consideration. The issue was thus distinctly made between previous or conditional and subsequent or unconditional amendments, and made in a form most favorable to the friends of the Constitution; for it enabled them to present so vigorously and vividly the consequences of suspending the inauguration of the new government until the other States could consider the amendments desired by Virginia, that they procured a rejection of Mr. Henry's resolution by a majority of eight, and a ratification of the Constitution by a majority of ten votes. A long list of amendments, together with a Bill of Rights, was then adopted, to be presented to Congress for its consideration.[449] The conduct of Mr. Henry, when he saw that the adoption of the Constitution was inevitable, was all that might have been expected from his patriotic and unselfish character. "If I shall be in the minority," he said, "I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet I will be a peaceable citizen. My head, my hand, and my heart shall be free to retrieve the loss of liberty, and remove the defects of this system in a constitutional way. I wish not to go to violence, but will wait with hopes that the spirit which predominated in the Revolution is not yet gone, nor the cause of those who are attached to the Revolution yet lost. I shall, therefore, patiently wait in expectation of seeing this government so changed as to be compatible with the safety, liberty, and happiness of the people."[450] This noble and disinterested patriot lived to find the Constitution all that he wished it to be, and to enroll himself, in the day of its first serious trial, among its most vigorous and earnest defenders. But some of the members of the opposition were not so discreet. Immediately after the adjournment of the convention, they prepared an address to the people, intended to produce an effort to prevent the inauguration of the new government by a combined arrangement among the legislatures of the several States. But this paper, which never saw the light, was rejected by their own party, and the opposition in Virginia subsided into a general acquiescence in the action of the convention.[451] The ratification of Virginia took place on the 25th of June; the news of this event was received and published in Philadelphia on the 2d of July. The press of the city was at once filled with rejoicings over the action of Virginia. She was the tenth pillar of the temple of liberty. She was Virginia,--eldest and foremost of the States,--land of statesmen whose Revolutionary services were as household words in all America,--birthplace and home of Washington! We need not wonder, when she had come so tardily, so cautiously, into the support of the Constitution, that men should have hailed her accession with enthusiasm. The people of Philadelphia had been for some time preparing a public demonstration, in honor of the adoption of the Constitution by nine States. Now that Virginia was added to the number, they determined that all possible magnificence and splendor should be given to this celebration, and they chose for it the anniversary day of the National Independence. A taste for allegory appears to have been quite prevalent among the people of the United States at this period. Accordingly, the Philadelphia procession of July 4, 1788, was filled with elaborate and emblematic representations. It was a long pageant of banners, of trades, and devices. A decorated car bore the Constitution framed as a banner and hung upon a staff. Then another decorated car carried the American flag and the flags of all friendly nations. Then followed the judges in their robes, and all the public bodies, preceding a grand federal edifice, which was carried on a carriage drawn by ten horses. On the floor of this edifice were seated, in chairs, ten gentlemen, representing the citizens of the United States at large, to whom the Federal Constitution had been committed before its ratification. When it arrived at "Union Green," they gave up their seats to ten others representing the ten States which had ratified the instrument. The federal ship, "The Union," came next, followed by all the trades, plying their various crafts upon elevated platforms, with their several emblems and mottoes, strongly expressing confidence in the protection that would be afforded under the Constitution to all the forms of American manufactures and mechanic arts. Ten vessels paraded on the Delaware, each with a broad white flag at its masthead, bearing the name of one of the ten States in gold letters; and, as if to combine the ideas both of the absence and the presence of the ten States, ten carrier-pigeons were let off from the printers' platform, each with a small package bearing "the ode of the day" to one of the ten rejoicing and sympathizing States. Thus did ingenuity and mechanical skill exert themselves in quaint devices and exhibitions, to portray, to personify, and to celebrate the vast social consequences of an event which had then no parallel in the history of any other country,--the free and voluntary adoption by the people of a written constitution of government framed by the agents and representatives of the people themselves. The carrier birds are not known to have literally performed their tasks, but as rapidly as horse and man could carry it, the news from Virginia pressed on to the North, and reached Hamilton at Poughkeepsie on the 8th of July. It found him still surrounded by the same difficulties that existed when he received the result of the convention of New Hampshire. The opposition had relaxed none of their efforts to prevent the adoption of the Constitution; they had only become somewhat divided respecting the method to be pursued for its defeat. Some of them were in favor of conditions precedent, or previous amendments; some, of conditions subsequent, or the proposal of amendments upon the condition that, if they should not be adopted within a certain time, the State should be at liberty to withdraw from the Union; and all of them were determined, in case the Constitution should be ratified, to carry constructive declarations of its meaning and powers as far as possible. Hamilton was conscious that the chief danger to which the Constitution itself was now exposed, was that a general concurrence in injudicious recommendations might seriously wound its power of taxation, by causing a recurrence, in some shape, to the system of requisitions. The danger to which the State of New York was exposed, was that it might not become a member of the new Union, in any form. The leading Federalists who were united with Hamilton in the effort to prevent such a disastrous issue of this convention were John Jay, the Chancellor Robert R. Livingston, and James Duane. A few days after the intelligence from New Hampshire was received, these gentlemen held a consultation as to the most effectual method of encountering the objections made to the general power of taxation that would be conferred by the Constitution upon the general government. The legislative history of the State, from 1780 to 1782, embraced a series of official acts and documents, showing that the State had been compelled to sustain a very large share of the burden of the Revolutionary war; that requisitions had been unable to call forth the resources of the country; and that, in the judgment of the State, officially and solemnly declared in 1782, and concurred in by those who now resisted the establishment of the Constitution, it was necessary that the Union should possess other sources of revenue. The Federalists now resolved that these documents be formally laid before the convention, and Hamilton undertook to bring them forward. On the 27th of June, he commenced the most elaborate and important of the speeches which he made in this assembly, for the purpose of showing that in the construction of a government the great objects to be attained are a free and pure representation, and a proper balance between the different branches of administration; and that when these are obtained, all the powers necessary to answer, in the most ample manner, the purposes of government, may be bestowed with entire safety. He proceeded to argue, not only that a general power of taxation was essential, but that, under a system so complex as that of the Constitution,--so skilfully endowed with the requisite forms of representation and division of executive and legislative power,--it was next to impossible that this authority should be abused. In the course of this speech, and for the purpose of showing that the State had suffered great distresses during the war from the mode of raising revenues by requisitions, he called for the reading at the clerk's table of a series of documents exhibiting this fact. Governor Clinton resisted their introduction, but they were read; and Hamilton and his friends then contended, that they proved beyond dispute that the State had once been in great peril for want of an energetic general government. This movement produced a warm altercation between the leading gentlemen on the opposite sides of the house. But while it threw a grave responsibility upon the opposition, it did not conquer them; and by the day on which the intelligence from Virginia arrived, they had heaped amendments upon the table on almost every clause and feature of the Constitution, some one or more of which it was highly probable they would succeed in making a condition of its acceptance. This critical situation of affairs led Hamilton to consider, for a short time, whether it might not be necessary to accede to a plan, by which the State should reserve the right to recede from the Union, in case its amendments should not have been decided upon, in one of the modes pointed out by the Constitution, within five or six years. He saw the objections to this course; and he was determined to leave no effort untried to bring the opposition to an unqualified ratification. But the danger of a rejection of the Constitution was extreme; and as a choice of evils, he thought that, if the State could in the first instance be received into the Union under such a reserved right to withdraw, succeeding events, by the adoption of all proper and necessary amendments, would make the reservation unimportant, because such amendments would satisfy the more reasonable part of the opposition, and would thus break up their party. But he determined not to incur the hazard of this step upon his own judgment alone, or that of any one else having a personal interest in the question; and accordingly, on the 12th of July, he despatched a letter to Madison, who was then attending in Congress at the city of New York, asking his opinion upon the possibility of receiving the State into the Union in this form.[452] Madison instantly replied, that, in his opinion, this would be a conditional ratification, and would not make the State of New York a member of the new Union; that the Constitution required an adoption _in toto_ and for ever; and that any condition must vitiate the ratification of any State.[453] Before this reply could have been received at Poughkeepsie, the Federalists had introduced their proposition for an unconditional ratification, and this was followed by that of the Anti-Federalists for a conditional one. The former was rejected by the convention on the 16th of July. The opposition then brought forward a new form of conditional ratification, with a Bill of Rights prefixed, and with amendments subjoined. After a long debate, the Federalists succeeded, on the 23d of July, in procuring a vote to change this proposition, so that, in place of the words "on condition," the people of the State would be made to declare that they assented to and ratified the Constitution "in full confidence" that, until a general convention should be called for proposing amendments, Congress would not exercise certain powers which the Constitution conferred upon them. This alteration was carried by thirty-one votes against twenty-seven. A list of amendments was then agreed upon, and a circular letter was adopted, to be sent to all the States, recommending a general convention; and on Saturday, the 26th of July, the ratification, as thus framed, with the Bill of Rights and the amendments, was carried by thirty affirmative against twenty-seven negative votes.[454] By this slender majority of her delegates, and under circumstances of extreme peril of an opposite decision, did the State of New York accept the Constitution of the United States, and become a member of the new government. The facts of the case, and the importance of her being brought into the new Union, afford a sufficient vindication of the course pursued by the Federalists in her convention. But it is necessary, before closing the history of these events, to consider a complaint that was made at the time, by some of the most zealous of their political associates in other quarters, and which touched the correctness of their motives in assenting to the circular letter demanding a general convention for the amendment of the Constitution. That there was danger lest another general convention might result in serious injury to the Constitution, perhaps in its overthrow, was a point on which there was probably no difference of opinion among the Federalists of that day. Washington regarded it in this light; and there is no reason to doubt that Hamilton and Jay, and many others of the friends of the Constitution, would have felt great anxiety about its result. But there were some members of the Federal party, in several of the States, who do not seem to have fully appreciated the importance of conceding to the opposition, at the time of the adoption of the Constitution, the use of any and every form of obtaining amendments which the Constitution itself recognized. This was true everywhere, where serious dissatisfaction existed, and it was especially true in the State of New York. It was impossible to procure a ratification in that State, without an equivalent concession; and if the Federal leaders in that convention assented to the proposal of a course of amending the Constitution for which the instrument itself provided, however ineligible it might be, their justification is to be found in the circumstances of their situation. Washington himself, when all was over, wrote to Mr. Jay as follows:--"Although I could scarcely conceive it possible, after ten States had adopted the Constitution, that New York, separated as it is from the others, and peculiarly divided in sentiments as it is, would withdraw from the Union, yet, considering the great majority which appeared to cling together in the convention, and the decided temper of the leaders, I did not, I confess, see how it was to be avoided. The exertion of those who were able to effect this great work must have been equally arduous and meritorious."[455] But others were not so just. The Federalists of the New York convention were complained of by some of their friends for having assented to the circular letter, for the purpose of procuring a ratification at any price, in order to secure the establishment of the new government at the city of New York. It was said that the State had better have remained out of the Union, than to have taken a course which would prove more injurious than her rejection would have done.[456] With respect to these complaints and the accompanying charge, it is only necessary to say, in the first place, that Hamilton and Jay and their associates believed that there was far less danger to be apprehended from a mere call for a second general convention, than from a rejection of the Constitution by the State of New York; and they had to choose between these alternatives. The result shows that they chose rightly; for the assembling of a general convention was superseded by the action of Congress upon the amendments proposed by the States. In the second place, the alleged motive did not exist. We now know that Hamilton certainly, and we may presume his friends also, did not expect or desire the new government to be more than temporarily placed at the city of New York. He himself saw the impolicy of establishing it permanently either at that place or at Philadelphia. He regarded its temporary establishment at the city of New York as the certain means of carrying it farther south, and of securing its final and permanent place somewhere upon the banks of the Delaware within the limits of New Jersey, or upon the banks of the Potomac within the limits of Virginia.[457] The people of the city of New York had waited long for the decision of their State convention. They had postponed several times their intended celebration in honor of the Constitution, which, as it was to be the last, they determined should be the most imposing of these ceremonies. When the day at length came, on the 5th of August, 1788, it saw a population whose mutual confidence and joy had absorbed every narrow and bigoted distinction in that noblest of all the passions that a people can exhibit,--love of country. It were a vain and invidious task to attempt to determine, from the contemporary descriptions, whether this display exceeded that of all the other cities in variety and extent. But there was one feature of it so striking, so creditable to the people of the city of New York, that it should not be passed over. It consisted in the honors they paid to Hamilton. He must have experienced on that day the best reward that a statesman can ever find; for there is no purer, no higher pleasure for a conscientious statesman, than to know, by demonstrations of public gratitude, that the humblest of the people for whose welfare he has labored appreciate and are thankful for his services. Public life is often represented, and often found, to be a thankless sphere, for men of the greatest capacity and the highest patriotism; and the accidents, the defeats, the changes, the party passions and obstructions of the political world, in a free government, frequently make it so. But mankind are neither deliberately heartless nor systematically unthankful; and it has sometimes happened, in popular governments, that statesmen of the first order of mind and character have, while living, received the most unequivocal proofs of feeling directly from the popular heart, while the sum total of their lives appears in history to be wanting in evidences of that personal success which is attained in a constant triumph over opponents. Such an expression of popular gratitude and sympathy it was now the fortune of Hamilton to receive. The people of the city did not stop to consider, on this occasion, whether he was entitled, in comparison with all the other public men in the United States, to be regarded as the chief author of the blessings which they now anticipated from the Constitution. And why should they? He was their fellow-citizen,--their own. They remembered the day when they saw him, a mere boy, training his artillerymen in their public park, for the coming battles of the Revolution. They remembered the youthful eloquence and the more than youthful power with which he encountered the pestilent and slavish doctrines of their Tories. They thought of his career in the army, when the extraordinary maturity, depth, and vigor of his genius, and his great accomplishments, supplied to Washington, in some of the most trying periods of his vast and prolonged responsibility, the assistance that Washington most needed. They recollected his career in Congress, when his comprehensive intellect was always alert, to bear the country forward to measures and ideas that would concentrate its powers and resources in some national system. They called to mind how he had kept their own State from wandering quite away into the paths of disunion,--how he had enlightened, invigorated, and purified public opinion by his wise and energetic counsels,--how he had led them to understand the true happiness and glory of their country,--how he had labored to bring about those events which had now produced the Constitution,--how he had shown to them the harmony and success that might be predicted of its operation, and had taught them to accept what was good, without petulantly demanding what individual opinion might claim as perfect. What was it to them, therefore, on this day of public rejoicing, that there might be in his policy more of consolidation than in the policy of others,--that he was said to have in his politics too much that was national and too little that was local,--that some had done as much as he in the actual construction of the system which they were now to celebrate? Such controversies might be for history, or for the contests of administration that were soon to arise. On this day, they were driven out of men's thoughts by the glow of that public enthusiasm which banishes the spirit of party, and touches and opens the inmost fountains of patriotism. Hamilton had rendered a series of great services to his country, which had culminated in the adoption of the Constitution by the State of New York; and they were now acknowledged from the very hearts of those who best knew his motives and best understood his character. The people themselves, divided into their respective trades, evidently undertook the demonstrations in his honor, and gave them an emphasis which they could have derived from no other source. They bore his image aloft upon banners. They placed the Constitution in his right hand, and the Confederation in his left. They depicted Fame, with her trumpet, crowning him with laurels. They emblazoned his name upon the miniature frigate, the federal ship of state. They anticipated the administration of the first President, by uniting on the national flag the figure of Washington and the figure of Hamilton.[458] All that ingenuity, all that affection, that popular pride and gratitude could do, to honor a public benefactor, was repeated again and again through the long line of five thousand citizens, of all orders and conditions, which stretched away from the shores of that beautiful bay, where ocean ascends into river and river is lost in ocean,--where Commerce then wore her holiday attire, to prefigure the magnificence and power which she was to derive from the Constitution of the United States. FOOTNOTES: [429] Notice of Henry, in the National Portrait Gallery of Distinguished Americans, Vol. II. Mr. Jefferson has said that Henry's power as a popular orator was greater than that of any man he had ever heard, and that Henry "appeared to speak as Homer wrote." (Jefferson's Works, I. 4.) [430] It is said in the newspapers of that period that Henry was on his legs in one speech for seven hours. I think it must have been the one from which I have made the abstract in the text. But he made a great many speeches, quite as earnest. [431] There has been, I am aware, a modern scepticism concerning Patrick Henry's abilities; but I cannot share it. He was not a man of much information, and he had no great breadth of mind. But he must have been, not only a very able debater, but a good parliamentary tactician. The manner in which he carried on the opposition to the Constitution in the convention of Virginia, for nearly a whole month, shows that he possessed other powers besides those of great natural eloquence. [432] Elliot, III. 152, Debates in the Virginia Convention. [433] Under date of February 7, 1788, Mr. Jefferson wrote from Paris, in a private letter to a gentleman in Virginia, as follows:--"I wish, with all my soul, that the nine first conventions may accept the new Constitution, because this will secure to us the good it contains, which I think great and important. But I equally wish that the four latest conventions, whichever they be, may refuse to accede to it till a Declaration of Rights be annexed. This would probably command the offer of such a Declaration, and thus give to the whole fabric, perhaps, as much perfection as any one of that kind ever had. By a Declaration of Rights, I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases, no suspensions of the _habeas corpus_, no standing armies. These are fetters against doing evil, which no honest government should decline. There is another strong feature in the new Constitution which I as strongly dislike. That is, the perpetual re-eligibility of the President. Of this, I expect no amendment at present, because I do not see that anybody has objected to it on your side the water. But it will be productive of cruel distress to our country, even in your day and mine. The importance to France and England to have our government in the hands of a friend or foe, will occasion their interference by money, and even by arms. Our President will be of much more consequence to them than a king of Poland. We must take care, however, that neither this nor any other objection to the new form produces a schism in our Union. That would be an incurable evil, because near friends falling out never reunite cordially; whereas, all of us going together, we shall be sure to cure the evils of our new Constitution before they do great harm." (Jefferson's Works, II. 355.) That Mr. Jefferson intended this letter should be used as it was in the convention of Virginia, is not probable; but it would seem from the care he took to state a plan of proceeding in the adoption of the Constitution, that he intended his suggestions should be known. His subsequent opinion will be found in a note below. [434] Alluding, evidently, to Washington. [435] See the speeches of Pendleton and Madison, in reply to Henry. Elliot, III. 304, 329. [436] Elliot, III. 314. [437] On the 27th of May, 1788, Mr. Jefferson wrote from Paris to Colonel Carrington, as follows:--"I learn with great pleasure the progress of the new Constitution. Indeed, I have presumed it would gain on the public mind, as I confess it has on my own. At first, though I saw that the great mass and groundwork was good, I disliked many appendages. Reflection and discussion have cleared off most of those. You have satisfied me as to the query I had put to you about the right of direct taxation. My first wish was that nine States would adopt it, and that the others might, by holding off, produce the necessary amendments. But the plan of Massachusetts is far preferable, and will, I hope, be followed by those who are yet to decide," &c. (Jefferson's Works, II. 404.) Colonel Carrington, the person to whom this letter was addressed, was a member of Congress, and received it at New York, about the 2d of July, when it was seen by Madison. (See a letter from Madison to E. Randolph of that date, among the Madison papers. Elliot, V. 573.) [438] See an account of this matter, _ante_, Vol. I. Book III. Chap. V. pp. 309-327. [439] They meant the four New England States and New York, Pennsylvania, and Maryland. New Jersey and Delaware were supposed to be with the four Southern States on this question. [440] Ten would be two thirds of the constitutional quorum of fourteen; so that the argument supposed only a quorum to be present. [441] See Mr. Madison's explanation in the convention of Virginia. Elliot, III. 346. [442] _Ante_, Book III. Chap. V., Vol. I. pp. 324-327. [443] Debates in the Virginia Convention, Elliot, III. 344-347. [444] He thought at this moment that if the Constitution should be lost, the Mississippi question would be the cause. The members from Kentucky were then generally hostile. (See a letter from Madison to Hamilton, of June 16th, Hamilton's Works, I. 457.) [445] See his correspondence with Madison, Works, I. pp. 450-469. [446] Works, I. 462. [447] See the latest letter which he had then received from Madison. Ibid. 461. [448] It has been supposed that this was not so, but that Hamilton's messenger arrived at Richmond before the final action of the Virginia convention, and so that the decision of New Hampshire had an important influence. I think this is clearly a mistake. I have traced the progress of the messenger in the newspapers of that time, and find his arrival at New York and Philadelphia chronicled as it is given in the text. The dates are therefore decisive. It appears also from Mr. Madison's correspondence with Hamilton, that he did not receive the despatch about New Hampshire until the 31st. (Hamilton's Works, I. 463.) The ratification passed the Virginia convention on the 25th, and that body was dissolved on the 27th. There is no trace in the Virginia debates of any authentic news from New Hampshire. On the contrary, it was assumed by one of the speakers, Mr. Innes, on the day of their ratification, that the Constitution then stood adopted by _eight_ States. (Elliot, III. 636.) [449] The form of ratification embraced the recitals given in the text respecting the powers of Congress. It was adopted by a vote of 89 to 79, on the 25th of June, 1788. I do not go into the particular consideration of the amendments proposed by several of the State conventions, because the present work is confined to the origin, the formation, and the adoption of the Constitution, and no State that ratified the instrument proposed by the national Convention made amendments a condition. The examination of the amendments proposed, therefore, belongs to the history of the Constitution subsequent to its inauguration. They may all be found in the Appendix to the thirteenth volume of the Journals of the Old Congress. [450] Debates in Virginia Convention, Elliot, III. 652. [451] Madison's letters to Hamilton, Works of Hamilton, I. 462, 463. [452] Letter to Madison, Works of Hamilton, I. 464. [453] Ibid. 465. [454] It was reported in the newspapers of that period that the Constitution was adopted in this convention by 30 yeas against 25 nays. But the official record gives the several votes as they are stated in the text; from which it appears that, on the critical question of a conditional or unconditional ratification, the majority was only 2. In truth, the ratification of New York barely escapes the objection of being a qualified one, if it does in fact escape it. [455] Works of Washington, IX. 408. [456] Madison's letter to Washington, August 24, 1788, Works of Washington, IX. 549. [457] See his letter to Governor Livingston of New Jersey, August 29, 1788, Works, I. 471. [458] Some of the most elaborate of these devices were borne by the "Block and Pump Makers" and the "Tallow-Chandlers." CHAPTER IV. ACTION OF NORTH CAROLINA AND RHODE ISLAND.--CONCLUSION. Thus had eleven States, at the end of July, 1788, unconditionally adopted the Constitution; five of them proposing amendments for the consideration of the first Congress that would assemble under it, and one of the five calling for a second general convention to act upon the amendments desired. Two other States, however, North Carolina and Rhode Island, still remained aloof. The legislature of North Carolina, in December, 1787, had ordered a State convention, which assembled July 21, 1788, five days before the convention of New York ratified the Constitution. In this body the Anti-Federalists obtained a large majority. They permitted the whole subject to be debated until the 2d of August; still it had been manifest from the first that they would not allow of an unconditional ratification. They knew what had been the result in New Hampshire and Virginia; but the decision of New York had, of course, not reached them. Their determination was not, however, to be affected by the certainty that the new government would be organized. Their purpose was not to enter the new Union, until the amendments which they desired had been obtained. They assumed that the Congress of the Confederation would not provide for the organization of the new government until another general convention had been held; or, if they did, that such a convention would be called by the new Congress;--and it appeared to them to be the most effectual mode of bringing about one or the other of these courses, to remain for the present in an independent position. The inconvenience and hazard attending such a position do not seem to have had much weight with them, when compared with what they regarded as the danger of an unconditional assent to the Constitution as it then stood. The Federalists contended strenuously for the course pursued by the other States which had proposed amendments, but they were overpowered by great numbers, and the convention was dissolved, after adopting a resolution declaring that a Bill of Rights, and certain amendments, ought to be laid before Congress and the convention that might be called for amending the Constitution, previous to its ratification by the State of North Carolina.[459] But in order, if possible, to place the State in a position to accede to the Constitution at some future time, and to participate fully in its benefits, they also declared, that, having thought proper neither to ratify nor to reject it, and as the new Congress would probably lay an impost on goods imported into the States which had adopted it, they recommended the legislature of North Carolina to lay a similar impost on goods imported into the State, and to appropriate the money arising from it to the use of Congress.[460] The elements which formed the opposition to the Constitution in other States received in Rhode Island an intense development and aggravation, from the peculiar spirit of the people, and from certain local causes, the history of which has never been fully written, and is now only to be gathered from scattered sources. Constitutional government was exposed to great perils, in that day, throughout the country, in consequence of the false notions of State sovereignty and of public liberty which prevailed everywhere. But it seemed as if all these causes of opposition and distrust had centred in Rhode Island, and had there found a theatre on which to exhibit themselves in their worst form. Fortunately, this theatre was so small and peculiar, as to make the display of these ideas extremely conspicuous. The Colony of Rhode Island was established upon the broadest principles of religious and civil freedom. Its early founders and rulers, flying from religious persecution in the other New England Colonies, had transmitted to their descendants a natural jealousy of other communities, and a high spirit of individual and public independence. In the progress of time, as not infrequently happens in such communities, the principles on which the State was founded were falsely interpreted and applied, until, in the minds of a large part of the people, they had come to mean a simple aversion to all but the most democratic form of government. No successful appeal to this hereditary feeling could be made during the early part of the Revolution, against the interests and influence of the confederacy, because the early and local effect of the Revolution in fact coincided with it. But when the Revolution was fairly accomplished, and the State had assumed its position of absolute sovereignty, what may be called the extreme _individualism_ of the people, and their old unfortunate relations with the rest of New England, made them singularly reluctant to part with any power to the confederated States. The manifestations of this feeling we have seen all along, from the first establishment of the Confederation down to the period at which we are now arrived. The local causes which gave to this tendency its utmost activity, at the time of the formation of the Constitution of the United States, were the following. First, there had existed in the State, for a considerable period, a despotic and well-organized party, known as the paper-money party. This faction had long controlled the legislation of the State, by furnishing the agricultural classes, in the shape of paper money, with the only circulating medium they had ever had in any large quantity; and they were determined to extinguish the debt of the State by this species of currency, which the legislature could, and did, depreciate at pleasure. Secondly, there existed, to a great and ludicrous extent, a constant antagonism between town and country,--between the agricultural and the mercantile or trading classes; and this hostility was especially violent and active between the people of the towns of Providence and Newport and the people of the surrounding and the more remote rural districts.[461] The paper-money question divided the inhabitants of the State in the same way. The loss of this circulation would deprive the agricultural classes of their sole currency. They kept their paper-money party, therefore, in a state of constant activity; and when the Constitution of the United States appeared, this was an organized and triumphant party, ready for any new contest. Finally, there prevailed among the country party a notion that the maritime advantages of the State ought in some way to be made use of, for obtaining better terms with the general government than could be had under the Constitution, and that by some such means funds could be obtained for paying their most urgent debts. If we may judge of the spirit and the acts of the majority of the people of Rhode Island, at this time, by the manner in which they were looked upon throughout the rest of the Union, no language of censure can be too strong to be applied to them. They were regarded and spoken of everywhere, among the Federalists, with contempt and abhorrence. Even the opposition in other States, in all their arguments against the Constitution, never ventured to defend the people of Rhode Island. Ridicule and scorn were heaped upon them from all quarters of the country, and ardent zealots of the Federal press urged the adoption of the advice which they said the Grand Seignior had given to the king of Spain, with respect to the refractory States of Holland, namely, to send his men with shovels and pickaxes, and throw them all into the sea. Such an undertaking, we may suppose, might have proved as difficult on this, as it would have been on the other side of the Atlantic. But however this might have been, it is probable that the natural effect of their conduct on the minds of men in other States, and the treatment they received, reacted upon the people of Rhode Island, and made them still more tenacious and persistent in their wrongful course. But we need not go out of the State itself, to find proof that a majority of its people were at this time violent, arbitrary, and unenlightened, both as to their true interests and as to the principles of public honesty. Determined to adhere to their paper-money system, they did not pause to consider and to discuss the great questions respecting the Constitution,--its bearing upon the welfare of the States,--its effect upon public liberty and social order,--the necessity for its amendment in certain particulars,--which led, in the conventions of the other States, to some of the most important debates that the subjects of government and free institutions have ever produced. Indeed, they resolved to stifle all such discussions at once; or, at any rate, to prevent them from being had in an assembly whose proceedings would be known to the world. When the General Assembly received the Constitution, at their session in October, 1787, they directed it to be published and circulated among the inhabitants of the State. In February, 1788, instead of calling a convention, they referred the adoption of the Constitution to the freemen in their several town meetings, for the purpose of having it rejected. There were at this time a little more than four thousand legal voters in the State. The Federalists, a small minority, indignant at the course of the legislature, generally withdrew from the meetings and refused to vote. The result was, that the people of the State appeared to be nearly unanimous in rejecting the Constitution.[462] The freemen of the towns of Providence and Newport, thereupon presented petitions to the General Assembly, complaining of the inconvenience of acting upon the proposed Constitution in meetings in which the people of the seaport towns and the people of the country could not hear and answer each other's arguments, or agree upon the amendments that it might be desirable to propose, and praying for a State convention. Their application was refused, and Rhode Island remained in this position, at the time when the question of organizing the new government came before the Congress of the Confederation, in July, 1788. Better counsels prevailed with her people, at a later period, and the same redeeming virtue and good sense were at length triumphant, which, in still more recent trials, have enabled her to overcome error, and party passion, and the false notions of liberty that have sometimes prevailed within her borders. As the stranger now traverses her little territory, in the journey of a day, and beholds her ample enjoyment of all civil and religious blessings,--her busy towns, her fruitful fields, her fair seat of learning, crowning her thriving capital, her free, happy, and prosperous people, her noble waters where she sits enthroned upon her lovely isles,--and remembers her ancient and her recent history, he cannot fail, in his prayer for her welfare, to breathe the hope that an escape from great social perils may be found for her and for all of us, in the future, as it has been in the past. But the attitudes taken by North Carolina and Rhode Island--although in truth quite different and taken from very different motives--placed the Union in a new crisis, involving the Constitution in great danger of being defeated, notwithstanding its adoption by more than nine States. Both of them were members of the existing confederacy; both had a right to vote on all questions coming before the Congress of that confederacy; and it was to this body that the national Convention itself had looked for the initiatory measures necessary to organize the new government under the Constitution. The question whether that government should be organized at all, was necessarily involved with the question as to the place where it should be directed to assemble and to exercise its functions. This latter topic had often been a source of dissension between the States; and there was much danger lest the votes of North Carolina and Rhode Island, in the Congress of the Confederation, by being united with the votes of States opposed to the selection of the place that might be named as the seat of the new government, might prevent the Constitution from being established at all. * * * * * But now, the pen that has thus traced these great events, and has sought to describe them in their true relations to the social welfare of the American people, must seek repose. How the Constitution was inaugurated,--by whom and upon what principles it was put into operation,--how and why it was amended or altered,--when and under what circumstances the two remaining States accepted its benefits,--what development and what direction it received from the generation of statesmen who made and established it,--belongs to the next epoch in our political history, the Administration of Washington. FOOTNOTES: [459] This resolution was adopted August 2, 1788, by 184 yeas to 84 nays. North Carolina Debates, Elliot, IV. 250, 251. [460] North Carolina Debates, Elliot, IV. 250, 251. [461] The march of the country people upon Providence, on the 4th of July, 1788, and the manner in which they compelled the inhabitants of the town to abandon their purpose of celebrating the adoption of the Constitution by nine States,--dictating even their toasts and salutes,--reads more like a page in Diedrich Knickerbocker's History of New York than like anything else. But it is a veracious as well as a most amusing story. (See Staples's Annals of Providence, pp. 329-335.) [462] There were 2,708 votes thrown against it, and 232 in its favor. This occurred in March, 1788. APPENDIX. NOTE ON THE AUTHORSHIP OF THE ORDINANCE OF 1787. (See page 344, _ante_.) When writing this volume, I prepared an elaborate note, for the purpose of proving that the Ordinance of 1787 was drawn up by Nathan Dane. The subsequent publication by Mr. Charles King, of New York, of an autograph letter of Mr. Dane's to his father, the Hon. Rufus King, written a few days after the passage of the Ordinance, put an end to all possibility of controversy on this subject, and made it unnecessary for me to burden my readers with a discussion of Mr. Dane's claim to be regarded as the author of that instrument. The following sentence in Mr. Dane's letter to Mr. King is decisive of the point which has sometimes been controverted:-- "When I drew the Ordinance, (which passed, a few words excepted, as I originally formed it,) I had no idea the States would agree to the sixth article, prohibiting slavery, as only Massachusetts, of the Eastern States, was present, and therefore omitted it in the draft; but finding the House favorably disposed on the subject, after we had completed the other parts, I moved the article, which was agreed to without opposition." FIRST DRAFT OF THE CONSTITUTION, AS REPORTED BY THE COMMITTEE OF DETAIL. MONDAY, _August 6_. _In Convention._--Mr. RUTLEDGE delivered in the report of the committee of detail, as follows,--a printed copy being at the same time furnished to each member:-- We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the government of ourselves and our posterity:-- ARTICLE I.--The style of the government shall be, "The United States of America." ART. II.--The government shall consist of supreme legislative, executive, and judicial powers. ART. III.--The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives and a Senate; each of which shall in all cases have a negative on the other. The legislature shall meet on the first Monday in December in every year. ART. IV.--Sect. 1. The members of the House of Representatives shall be chosen, every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors, in the several States, of the most numerous branch of their own legislatures. Sect. 2. Every member of the House of Representatives shall be of the age of twenty-five years at least; shall have been a citizen in the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen. Sect. 3. The House of Representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner hereinafter described, consist of sixty-five members, of whom three shall be chosen in New Hampshire, eight in Massachusetts, one in Rhode Island and Providence Plantations, five in Connecticut, six in New York, four in New Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North Carolina, five in South Carolina, and three in Georgia. Sect. 4. As the proportions of numbers in different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more States may be united; as new States will be erected within the limits of the United States,--the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions hereinafter made, at the rate of one for every forty thousand. Sect. 5. All bills for raising or appropriating money, and for fixing the salaries of the officers of government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the public treasury, but in pursuance of appropriations that shall originate in the House of Representatives. Sect. 6. The House of Representatives shall have the sole power of impeachment. It shall choose its speaker and other officers. Sect. 7. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State in the representation from which they shall happen. ART. V.--Sect. 1. The Senate of the United States shall be chosen by the legislatures of the several States. Each legislature shall choose two members. Vacancies may be supplied by the executive until the next meeting of the legislature. Each member shall have one vote. Sect. 2. The senators shall be chosen for six years; but immediately after the first election, they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two, and three. The seats of the members of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; of the third class at the expiration of the sixth year; so that a third part of the members may be chosen every second year. Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen. Sect. 4. The Senate shall choose its own President and other officers. ART. VI.--Sect. 1. The times, and places, and manner, of holding the elections of the members of each House, shall be prescribed by the legislature of each State; but their provisions concerning them may, at any time, be altered by the legislature of the United States. Sect. 2. The legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said legislature shall seem expedient. Sect. 3. In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day. Sect. 4. Each House shall be the judge of the elections, returns, and qualifications of its own members. Sect. 5. Freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place out of the legislature; and the members of each House shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it. Sect. 6. Each House may determine the rules of its proceedings; may punish its members for disorderly behavior; and may expel a member. Sect. 7. The House of Representatives, and the Senate when it shall be acting in a legislative capacity, shall keep a journal of their proceedings; and shall, from time to time, publish them; and the yeas and nays of the members of each House, on any question, shall, at the desire of one fifth part of the members present, be entered on the Journal. Sect. 8. Neither House, without the consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate when it shall exercise the powers mentioned in the ---- Article. Sect. 9. The members of each House shall be ineligible to, and incapable of holding, any office under the authority of the United States, during the time for which they shall respectively be elected; and the members of the Senate shall be ineligible to, and incapable of holding, any such office for one year afterwards. Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State in which they shall be chosen. Sect. 11. The enacting style of the laws of the United States shall be, "Be it enacted, and it is hereby enacted, by the House of Representatives, and by the Senate of the United States, in Congress assembled." Sect. 12. Each House shall possess the right of originating bills, except in the cases before mentioned. Sect. 13. Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States for his revision. If, upon such revision, he approve of it, he shall signify his approbation by signing it. But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated; who shall enter the objections at large on their Journal, and proceed to reconsider the bill. But if, after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall, together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and, if approved by two thirds of the other House also, it shall become a law. But, in all such cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the Journal of each House respectively. If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return, in which case it shall not be a law. ART. VII.--Sect. 1. The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises; To regulate commerce with foreign nations, and among the several states; To establish an uniform rule of naturalization throughout the United States; To coin money; To regulate the value of foreign coin; To fix the standard of weights and measures; To establish post-offices; To borrow money, and emit bills, on the credit of the United States; To appoint a treasurer by ballot; To constitute tribunals inferior to the supreme court; To make rules concerning captures on land and water; To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations; To subdue a rebellion in any State on the application of its legislature; To make war; To raise armies; To build and equip fleets; To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions; And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. Sect. 2. Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted. Sect. 3. The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description (except Indians not paying taxes); which number shall, within six years after the first meeting of the legislature, and within the term of every ten years afterwards, be taken in such a manner as the said legislature shall direct. Sect. 4. No tax or duty shall be laid by the legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited. Sect. 5. No capitation tax shall be laid, unless in proportion to the census hereinbefore directed to be taken. Sect. 6. No navigation act shall be passed without the assent of two thirds of the members present in each House. Sect. 7. The United States shall not grant any title of nobility. ART. VIII.--The acts of the legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions, anything in the constitutions or laws of the several States to the contrary notwithstanding. ART. IX.--Sect. 1. The Senate of the United States shall have power to make treaties, and to appoint ambassadors, and judges of the supreme court. Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist, between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers:--Whenever the legislature, or the executive authority, or lawful agent of any State, in controversy with another, shall, by memorial to the Senate, state the matter in question, and apply for a hearing, notice of such memorial and application shall be given, by order of the Senate, to the legislature, or the executive authority, of the other State in controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before that House. The agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question. But if the agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons, each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine, names, as the Senate shall direct, shall, in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges to hear and finally determine the controversy; provided a majority of the judges who shall hear the cause agree in the determination. If either party shall neglect to attend at the day assigned, without showing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such court, or shall not appear to prosecute or defend their claim or cause, the court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records, for the security of the parties concerned. Every commissioner shall, before he sit in judgment, take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection, or hope of reward." Sect. 3. All controversies concerning lands claimed under different grants of two or more States, whose jurisdictions, as they respect such lands, shall have been decided or adjusted subsequently to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States. ART. X.--Sect. 1. The executive power of the United States shall be vested in a single person. His style shall be, "The President of the United States of America," and his title shall be, "His Excellency." He shall be elected by ballot by the legislature. He shall hold his office during the term of seven years; but shall not be elected a second time. Sect. 2. He shall, from time to time, give information to the legislature of the state of the Union. He may recommend to their consideration such measures as he shall judge necessary and expedient. He may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper. He shall take care that the laws of the United States be duly and faithfully executed. He shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive ambassadors, and may correspond with the supreme executives of the several States. He shall have power to grant reprieves and pardons, but his pardon shall not be pleadable in bar of an impeachment. He shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States. He shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during his continuance in office. Before he shall enter on the duties of his department, he shall take the following oath or affirmation, "I ---- solemnly swear (or affirm) that I will faithfully execute the office of President of the United States of America." He shall be removed from his office on impeachment by the House of Representatives, and conviction, in the supreme court, of treason, bribery, or corruption. In case of his removal, as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties until another President of the United States be chosen, or until the disability of the President be removed. ART. XI.--Sect. 1. The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the United States. Sect. 2. The judges of the supreme court, and of the inferior courts, shall hold their offices during good behavior. They shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. Sect. 3. The jurisdiction of the supreme court shall extend to all cases arising under laws passed by the legislature of the United States; to all cases affecting ambassadors, other public ministers and consuls; to the trial of impeachments of officers of the United States; to all cases of admiralty and maritime jurisdiction; to controversies between two or more States (except such as shall regard territory or jurisdiction); between a State and citizens of another State; between citizens of different States; and between a State, or the citizens thereof, and foreign states, citizens, or subjects. In cases of impeachment, cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, this jurisdiction shall be original. In all the other cases before mentioned, it shall be appellate, with such exceptions, and under such regulations, as the legislature shall make. The legislature may assign any part of the jurisdiction above mentioned, (except the trial of the President of the United States,) in the manner and under the limitations which it shall think proper, to such inferior courts as it shall constitute from time to time. Sect. 4. The trial of all criminal offences (except in cases of impeachment) shall be in the State where they shall be committed; and shall be by jury. Sect. 5. Judgment, in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law. ART. XII.--No State shall coin money; nor grant letters of marque and reprisal; nor enter into any treaty, alliance, or confederation; nor grant any title of nobility. ART. XIII.--No State, without the consent of the legislature of the United States, shall emit bills of credit, or make anything but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of a delay until the legislature of the United States can be consulted. ART. XIV.--The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. ART. XV.--Any person charged with treason, felony, or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence. ART. XVI.--Full faith shall be given in each State to the acts of the legislatures, and to the records and judicial proceedings of the courts and magistrates, of every other State. ART. XVII.--New States lawfully constituted or established within the limits of the United States may be admitted, by the legislature, into this government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the legislature may make conditions with the new States concerning the public debt which shall be then subsisting. ART. XVIII.--The United States shall guarantee to each State a republican form of government; and shall protect each State against foreign invasions, and, on the application of its legislature, against domestic violence. ART. XIX.--On the application of the legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the legislature of the United States shall call a convention for that purpose. ART. XX.--The members of the legislatures, and the executive and judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution. ART. XXI.--The ratification of the conventions of ---- States shall be sufficient for organizing this Constitution. ART. XXII.--This Constitution shall be laid before the United States in Congress assembled, for their approbation; and it is the opinion of this Convention, that it should be afterwards submitted to a convention chosen in each State, under the recommendation of its legislature, in order to receive the ratification of such convention. ART. XXIII.--To introduce this government, it is the opinion of this Convention, that each assenting convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the conventions of ---- States, should appoint and publish a day, as early as may be, and appoint a place, for commencing proceedings under this Constitution; that, after such publication, the legislatures of the several States should elect members of the Senate, and direct the election of members of the House of Representatives; and that the members of the legislature should meet at the time and place assigned by Congress, and should, as soon as may be after their meeting, choose the President of the United States, and proceed to execute this Constitution. * * * * * CONSTITUTION OF THE UNITED STATES OF AMERICA.[463] We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America. ARTICLE. I. SECTION. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. SECTION. 2. {1} The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. {2} No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. {3} Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. {4} When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. {5} The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. SECTION. 3. {1} The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. {2} Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one-third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. {3} No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. {4} The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. {5} The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the office of President of the United States. {6} The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. {7} Judgment in Cases of Impeachment shall not extend further than to removal from Office, and Disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. SECTION. 4. {1} The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. {2} The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. SECTION. 5. {1} Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. {2} Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. {3} Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. {4} Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. SECTION. 6. {1} The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. {2} No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. SECTION. 7. {1} All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. {2} Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. {3} Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. SECTION. 8. The Congress shall have Power {1} To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; {2} To borrow Money on the credit of the United States; {3} To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; {4} To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; {5} To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; {6} To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; {7} To establish Post Offices and post Roads; {8} To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; {9} To constitute Tribunals inferior to the supreme Court; {10} To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; {11} To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; {12} To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; {13} To provide and maintain a Navy; {14} To make Rules for the Government and Regulation of the land and naval Forces; {15} To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; {16} To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; {17} To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings;--And {18} To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. SECTION. 9. {1} The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceeding ten dollars for each Person. {2} The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. {3} No Bill of Attainder or ex post facto Law shall be passed. {4} No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. {5} No Tax or Duty shall be laid on Articles exported from any State. {6} No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. {7} No Money shall be drawn from the Treasury, but in consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. {8} No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. SECTION. 10. {1} No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. {2} No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. {3} No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of Delay. ARTICLE. II. SECTION. 1. {1} The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows {2} Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.[464] {3} The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. {4} No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. {5} In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. {6} The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. {7} Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." SECTION. 2. {1} The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. {2} He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. {3} The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. SECTION. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the officers of the United States. SECTION. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE III. SECTION. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. SECTION. 2. {1} The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers, and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. {2} In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. {3} The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. SECTION. 3. {1} Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. {2} The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE. IV. SECTION. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. SECTION. 2 {1} The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. {2} A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. {3} No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. SECTION. 3. {1} New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. {2} The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. SECTION. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE. VI. {1} All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. {2} This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. {3} The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE. VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. DONE in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth =In Witness= whereof We have hereunto subscribed our Names, G{o}: WASHINGTON-- _Presidt and Deputy from Virginia_ NEW HAMPSHIRE. JOHN LANGDON, NICHOLAS GILMAN. MASSACHUSETTS. NATHANIEL GORHAM, RUFUS KING. CONNECTICUT. WM. SAML. JOHNSON, ROGER SHERMAN. NEW YORK. ALEXANDER HAMILTON. NEW JERSEY. WIL: LIVINGSTON, DAVID BREARLEY, WM. PATERSON, JONA. DAYTON. PENNSYLVANIA. B. FRANKLIN, THOMAS MIFFLIN, ROBT. MORRIS, GEO: CLYMER, THO{S}. FITZ SIMONS, JARED INGERSOLL, JAMES WILSON, GOUV: MORRIS. DELAWARE. GEO: READ, GUNNING BEDFORD, jun. JOHN DICKINSON, RICHARD BASSETT. JACO: BROOM. MARYLAND. JAMES M'HENRY, DAN: OF ST. THOS. JENIFER, DANL. CARROLL. VIRGINIA. JOHN BLAIR, JAMES MADISON, JR. NORTH CAROLINA. WM. BLOUNT, RICH'D DOBBS SPAIGHT. HU. WILLIAMSON. SOUTH CAROLINA. J. RUTLEDGE, CHARLES COTESWORTH PINCKNEY, CHARLES PINCKNEY, PIERCE BUTLER. GEORGIA. WILLIAM FEW, ABR. BALDWIN. Attest: WILLIAM JACKSON, _Secretary_. FOOTNOTES: [463] This copy of the Constitution has been compared with the Rolls in the Department of State, and is punctuated and otherwise printed in exact conformity therewith. [464] Altered by the 12th Amendment. ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.[465] (ARTICLE 1.) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (ARTICLE 2.) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (ARTICLE III.) No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. (ARTICLE IV.) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (ARTICLE V.) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (ARTICLE VI.) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have Compulsory process for obtaining Witnesses in his favour, and to have the Assistance of Counsel for his defence. (ARTICLE VII.) In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. (ARTICLE VIII.) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (ARTICLE IX.) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (ARTICLE X.) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ARTICLE XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. ARTICLE XII. The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. FOOTNOTE: [465] Although this work does not embrace the history of the Amendments, they are printed here in connection with the Constitution, for the convenience of the reader. INDEX. A. _Acquisition_, national spirit of, reflections on, II. 312. ADAMS, JOHN, delegate to first Continental Congress, I. 13. On Washington's appointment as commander-in-chief, 42. One of the committee to prepare Declaration of Independence, 50. His account of the Declaration, 82. First minister to Great Britain, 257. Answer to his complaints about the treaty, 257. Instructed to negotiate treaty with the Netherlands, 280. One of the commissioners to procure commercial treaties, 287. Views of, respecting taxation of slaves, II. 159. Practice of, respecting cabinet, 409. ADAMS, SAMUEL, delegate to first Continental Congress, I. 13. Reserve of, respecting Constitution, II. 533. Disapproves of Constitution, 533. Character of, 534. Position of, in convention of Massachusetts, 534. In favor of Hancock's amendments to Constitution, 538. ADAMS, captain in the Revolutionary naval force, I. 74. _Address_ of the Colonies to the people of Great Britain, I. 23. _Admiralty Jurisdiction_, criminal, II. 330. Of courts of United States, 445. Under Confederation, 445. _Adoption_ of Constitution, mode of, recommended, II. 372. _Albany_, convention of Colonies at, in 1753-54, I. 8. _Alexandria_, meeting of commissioners at, from Virginia and Maryland, I. 341. _Alexandria Commissioners_, visit General Washington, I. 425. Report of, received in Virginia legislature, 426. _Aliens_, rights to be conceded to, in certain treaties, I. 280. See _Foreigners_. _Allegiance_ of people of the Colonies, transferred, I. 52. _Alliance._ See _Treaty of Alliance_. _Ambassadors_, proposed appointment of, by Senate, II. 223, 410; by President, 234. Received by President, 415. To be nominated by President, 418. Jurisdiction of cases affecting, 444. _Amendment_ of Constitution, II. 84. Provision for, adopted without debate, 177. And revolution, distinction between, 473. _Amendments_ of Constitution, when to be proposed by Congress, II. 268. How to be proposed and adopted, 473. How ratified, 477. Power to make, limited, 477. States at liberty to propose, 486. Proposed by Hancock, 537; by Massachusetts, classified, 539; by South Carolina, 548; by Patrick Henry, 580; by Virginia, 581; by New York, 587, 588; by North Carolina, 597. Refused in Maryland convention, 543. Proposed, not made conditions of adoption, 551. _Amendments_ of Articles of Confederation, how made, II. 84, 473, 481. _America_, natural advantages of, for commercial pursuits, II. 309. Variety of climate and products of, 309. _American Constitutions_, character of, I. 261. _American Feeling_, Washington's efforts to create, I. 110. _American People_ perceive the insufficiency of State governments, I. 114. Early familiarity of, with the principles of government, 117. Perceive the necessity of a union, 121. See _People of America_. _American Revolution_, commencement of, I. 3. Attempt to alter charter governments, a principal cause of, 6. Found local legislatures in all the Colonies, 7. Fundamental principle established by, 379. Object and effects of, II. 196. Policy which led to, real cause of, 238. Effect of, on views of people of United States, relating to government, 238. _Annapolis_, general commercial convention at, I. 326, 340, 350. Recommends general convention to revise the federal system, 349. Recommendation, how received, 351. See HAMILTON and MADISON. _Annapolis Commissioners_, report of, acted upon in Congress, I. 355. _Anti-Federalists_, plan of, to postpone action of Virginia on Constitution, II. 568. See _Federalists_. _Appropriation Bills_, provision concerning, objected to, II. 147. See _Money Bills_ and _Revenue Bills_. _Arms of the United States_, when adopted, I. 151. ARMSTRONG, JOHN, wrote the Newburgh Addresses, I. 168. _Army_, power of Congress to raise and support, II. 333. Appropriation of money for support of, 333. Power of Congress to make rules for, 334. Standing, repugnant to American feelings, 336. Not to be kept by States in time of peace, 371. President commander-in-chief of, 413. Power of President to employ, 413. _Army of the Revolution_, first suggested, I. 31. How first raised, 32. State of, when Washington arrived at Cambridge, 55. How constituted, 58. Short enlistments in, how accounted for, 60. Committee of Congress sent to examine, 60. Discontents in, 79, 158, 186. History of, after the evacuation of Boston, 91. Reorganized, 91, 92. Defects in organization of, 93. Officers of, how appointed, 93; how treated in 1776, 94. Bad construction of, 94, 96. Third effort of Washington to reorganize, 109. Embarrassments and difficulties attending, 110. State of, in April, 1777, 111; in May, 1782, 158. _Arrest_, privilege from, II. 263. _Arsenals_, authority of Congress over, II. 340. _Articles of Confederation_, I. 509. Reported in Congress, and recommended to the States, 53, 104, 113. Adoption of, by the States, 124. Amendments to, proposed by the States, 128; by New Jersey, for regulation of commerce, 129. Chief obstacle to the completion of, 131. States urged to accede to, 134. Ratified by New Jersey, 135; by Delaware, 135; by Maryland, 136. Completion of, announced, 137. Established by patriotic sacrifices, 139. Outline of, 142. Construction of third article of, 265. Circular letter of Congress, recommending adoption of, 491. Representation of New Jersey respecting, 493. Act of New Jersey accepting, 497. Resolves of Delaware respecting, 498. Action of Maryland on, 501; of New York on, 505. Amendment of, at first contemplated, II. 16. How altered, 84, 180, 481. Citizenship under, 206. Effort to include in, power over Western Territory, 341. Admission of new States under, 345. On what terms ratified by smaller States, 346. Restraints imposed on States by, 363. Inter-state privileges under, 447. _Assemblies_ in Provincial governments, how constituted, I. 4. _Assembling_, one of the common law rights, I. 23. _Association_, drawn up by House of Burgesses in Virginia, I. 12. For non-importation, &c., how carried out by colonists, 24. _Attainder, Bills of_, defined, II. 360. Congress prohibited to pass, 360. States prohibited to pass, 368. _Attestation_ to Constitution, form of, II. 485. B. BALDWIN, ABRAHAM, model of Senate suggested by, II. 139. Vote and views of, respecting representation in Senate, 142. _Baltimore_, public rejoicings in, in honor of Constitution, II. 543. BARNWELL, ROBERT, in favor of Constitution, II. 510. Arguments of, in convention of South Carolina, 548. BELKNAP, Dr., on slavery in Massachusetts, II. 454. _Bill of Rights_, want of, a strong argument with some against Constitution, II. 498. James Wilson's views respecting, 522. States equally divided on question of, in Convention, 523. Considered essential by Patrick Henry, 554. Proposed by Virginia, 581. _Bills of Credit_, power to emit, prohibited to States, II. 328, 364. Meaning of, 329. _Boston_, occupied by royal troops in 1774-75, I. 27. Invested by army under General Ward, in 1775, 32. Reception of Constitution by people of, II. 501. Rejoicings in, in honor of Constitution, 540. _Boundary_, Southern, fixed by the Treaty of Peace, I. 312. Questions of, proposed to be determined by Senate, II. 223, 231; plan respecting, 235. Determination of, a judicial question, 232. See _Western Territory_, _Lands_, and _Northwestern Territory_. _Bounties_ offered for enlistment in 1776, I. 93. Additional, offered by States, 95; effect of, 110. BOWDOIN, JAMES, delegate to first Continental Congress, I. 13. Governor of Massachusetts, 270. Suppresses Shays's rebellion, 270. Message of, suggesting a general convention, 336. _Brandywine_, battle of the, force engaged in, I. 113. _Bribery_, by executive, dangers of, II. 242. _British Colonies_, legislatures of, divided into two branches, II. 132. BROUGHTON, NICHOLAS, commander of the Hannah, I. 74. BUTLER, PIERCE, in favor of the Constitution, II. 510. C. _Cabinet_, functions of, II. 407. Views respecting, in Convention, 408. President may require opinions of, 408. Constitutional character of, 409. Practice of first three Presidents respecting, 409. _Captures_, power of Congress to regulate, II. 330. _Capitation Tax_, report of committee of detail respecting, II. 290. Provision respecting, adopted, 304. CARROLL, CHARLES, proposition of, for asserting right of United States to vacant lands, II. 353, 355. _Cases_ arising under Constitution, &c., meaning of, II. 430. _Census_, periodical, proposed by Williamson of North Carolina, II. 153. Vote respecting, 153. See _Federal Census_. _Cessions_ of Northwestern Territory, II. 342. Of land by States to United States, 356. See _Western_ and _Northwestern Territory_. _Charleston_, rejoicings in, on adoption of Constitution, II. 548. _Charter_, of William and Mary to Massachusetts, I. 5; attempt to alter, 6. Inviolability of, 23. How distinguished from constitution, II. 7. _Charter Governments_, form and character of, I. 5. CHASE, SAMUEL, views of, respecting taxation of slaves, II. 159. _Checks_ of one department on another, II. 301. _Citizenship_, as qualification of national officers, II. 186, 188, 204; of senators, 223. State rules respecting, unlike, 199. General privileges of, under Confederation, 206, 448; under Constitution, 448. See _Naturalization_. CLARKE, GEORGE ROGERS, General, proceedings of, in Kentucky, I. 322. CLINTON, GEORGE, message of, as Governor of New York, on revenue system of 1783, I. 359. Head of party in New York opposed to Constitution, II. 502. _Coinage_ of the United States, origin of, I. 443. COIT, captain in the Revolutionary naval force, I. 74. _Colonies_, thirteen English, I. 3. Ante-Revolutionary governments of, 3. Form a union, 3. No union of, before the Revolution, 7. Common grievances of, 9. People of, how descended, 9. Rights of, how to be determined, 16; when and how stated, 20; declaration of, 22; what included in, 22; how to be enforced, 23. Trade of, how far right to regulate in Parliament, 20. Reduction of, to submission, great preparations for, 38. Trade with, prohibited by Parliament, December, 1775, 38. Change of, into States, 116. Constitutional power of, II. 179. _Commerce_, of the United States, I. 276; capacity of, at the close of the war, 284. Regulation of, a leading object of Constitutional Convention, II. 12; became an exigency of the Union, 13; how provided for, by Virginia plan, 90; if universal, must include slave-trade, 285; report of committee of detail respecting, 289; generally conceded to general government as necessary, 290; views of Southern statesmen respecting, 290; by Congress, beneficial to North and South, 291; a power conceded by South to North, 291; indivisible, 370; reluctance of South Carolina to concede, 546. Want of power over, in Confederation, 279. Interest of, in different States, not identical, 291, 299. Powers of government over, influence of, 311. Necessities of, basis of Constitution, 312. See _Regulation of Commerce_. _Commercial Convention._ See _Annapolis_ and _Virginia_. _Commercial Power_ asked for by Congress, I. 285. Action of the States respecting, 286. _Commercial Treaties_, want of, displayed, I. 277. Existing at the peace, 279. How far the Confederation competent to make, 279. Why not made with England, 282. Congress endeavors to get power to make, 285. Attempt to negotiate without power, 286. States refuse the power to make, 287. Fruitless efforts of the commissioners to negotiate, 289. _Commission._ See _Commercial Treaties_ and JOHN ADAMS. _Committee of Congress_ sent to confer with Washington, I. 60, 93. _Committee of the States_ under the Confederation, I. 146. _Committees of Correspondence_ recommended by Virginia, I. 11. Agency of, 12. _Common Law_, one of the rights of the Colonies, I. 23. And equity, distinction between, preserved by Constitution, II. 425. Basis of State jurisprudence, 425. _Commutation._ See _Half-Pay_. _Compromises_ between national and federal systems, II. 102, 104. Lie at the basis of the Constitution, 129. Respecting formation of Congress, 141, 167, 195; representation in Congress, 146. Respecting slavery, 161; how to be effected, 163; reflections on, 309. Committee of, proposed by Gouverneur Morris, 201. Respecting Senate, as affected by money bills, 217; choice of executive, 220. How to be studied, 220. Respecting slave-trade and navigation act, 302. If not made, necessary consequences, 315. _Confederation_, office of, in American history, I. 140, 149. Revenues of, 147. Defects of, 148, 155; II. 11, 14, 15, 35, 60, 79, 376. Restraints imposed by, upon the States, I. 149. Legal commencement of, 149. Operation of, to the close of the war, 181. Power of, to maintain an army and navy in peace, 215. Analyzed by Hamilton, 221. Principle of, adhered to, 225. Summary of its operations, 228. Incapacity of, to protect the State governments, 260. Had no strict power to hold or manage public lands, 291. Decay and failure of, 328; II. 13. Fatal defect in the principle of the, I. 371. Nature of, II. 16. Had no power of compulsion, 16, 376. Powers of, 27. Principle of, 33. Rule of suffrage under, 42. Had no executive or judiciary, 60. Laws of, to be executed by State tribunals, 61. Compared with Constitution, 90. Articles of, framed in 1776, 158. Assessments on States under, 160. Still in force while Convention in session, 178. Relation of, to States, 179. States opposed to entering, except on full federal equality, 227. Had no seat of government, 268. Want of power in, over commerce, 279; over revenues, 279. Engagements of, proposal to assume, 321. Want of power in, to admit new States, 349. Rule of, respecting making of treaties, 376, 416, 441. Nature and objects of, 448. How amended, 473. Chief cause of failure of, 573. See _Articles of Confederation_ and _Congress_. _Confiscations_, provided against, by the Treaty of Peace, I. 250. Strict right of, belonged to the Union, 251. _Congress_ of the Revolution, leaves Philadelphia after the battle of the Brandywine, I. 113; assembles at Lancaster and Yorktown, 113. Of the Confederation, first meeting of, 125; structure and form of, 143; II. 133, 226; powers of, I. 144; restrictions on powers of, 146; attendance diminished after the peace, 189; driven from Philadelphia by a mutiny, 220; decline of, 226; meeting of, in 1783, 235; thinly attended, 235; appointment and attendance of delegates, 237, 239; perpetually in session, 238; public objects to be accomplished by, 239; condition of, in 1785, 339; unfitted to revise the federal system, 364; had but one chamber, II. 132; resolution for continuance of, 176; method of voting in, 226; members of, chosen annually, and liable to recall, 241; appointment of officers by, complaints respecting, 248; met where, 268; presence of, in New York, benefits resulting from, 273; attempts of, to procure cessions from States, 342; resolve of, for regulation of Northwest Territory, 342; power of, to admit new States, 344; transmission of Constitution to, 486; action of, on Constitution, 499. Old, authority of, continued till new adopted, 86. Under Virginia plan, to have two houses, 101. Under New Jersey plan, to be one body, 101. Present constitution of, by whom first suggested, 138; compromise respecting, 141, 167. Power of, to legislate for general interests of Union, 170; to negative State laws, 170; respecting elections to, 257; in general, 279; over taxes, duties, &c., 322; to pay debts of United States, 322; to provide for common defence, &c., 322; over places purchased for forts, &c., 340; over Territories, different views concerning, 340, 358; limited, 340; over soil of national domain, 351; proposed, over property of United States, 355; restraints on, 359; to establish inferior tribunals, 423, 427. Acts of, supreme law, 170; how passed, 264. Proposal that executive be chosen by, 171. Members of, qualifications of, 194; ineligibility of, to office, 250; time, &c. of electing, left to States, 258; pay of, proceedings in Convention respecting, 258; objections to States paying, 259; privileged from arrest, 263; punishment and expulsion of, 263; not to be questioned elsewhere for speech or debate, 263. Importance of early legislation of, 208. Proposed to be modelled after Congress of Confederation, 226. Admission of members of Cabinet, &c. to, question respecting, 253. Each house of, to be judge of elections, &c. of its own members, 262; to determine its own rules of proceeding, 263; to keep journal, 263. Adjournment of, 275, 419. Exclusive sovereign of District of Columbia, 277. Time of meeting of, 277. To make all necessary and proper laws for execution of powers, 338. To declare war, 413. To authorize calling out of militia, 413. Special relations of President to, 419. To prescribe mode of proof and effect of State records, &c., 449. To propose amendments to Constitution, 477. To call Convention to amend Constitution, when, 477. _Connecticut_, a charter government, I. 5. Governor, council, and representatives always chosen by the people, 6. Had five representatives in first House, 149. Cedes claims to Western territory, 300, 344. Appoints and instructs delegates to the Convention, 369. Opposed to Convention, II. 23; to executive holding office during "good behavior," 173; to property qualification for office, 189; to nine years' citizenship as qualification of Senator, 224; to taxing exports, 296; to restricting President to stated salary, 407. In favor of equality of suffrage in both branches of Congress, 122, 138; of equal representation of States in Senate, 141, 148, 165; of census of free inhabitants, 153; of referring Constitution to State legislatures, 184; of each State having one vote in Senate, 227. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218; respecting eligibility of members of Congress to office, 251; respecting slave-trade, 305. Ratification of Constitution by, 515. Convention of, 527; debates in, mostly lost, 529. _Connecticut Reservation_, note on, I. 300. _Constitution_, how framed, II. 3. Means of peaceful coercion a leading object of, 62. An abridgment of State powers in some respects, 73. Republican government guaranteed to States by, 80, 458, 468. Capacity of, of amendment, 84. Why submitted to people for ratification, 84. As reported to Convention, 86. Different plans of, proposed in Convention, 89. Compared with Confederation, 90. Compromise of, between national and federal system, 102. Based on compromises, 129. Possibility of failure to create, reflections on, 142. Framers of, problem before, 155; position and purposes of, 178; had been observers of Parliamentary corruption, 242. State and national officers sworn to support, 177, 372. Ratification of, 177. Dissatisfaction with, in different States, 182. How differs from league, 184. Proposal to submit, to Congress of Confederation, 185. Growth of, important to be pursued through entire proceedings, 193. Divided into twenty-three articles by committee's report, 194. Interest in Europe respecting, 196. Should define eligibility to national offices, 199. Purposes of, respecting immigrants, 209. Analogy of, to British Constitution, 214. Provisions of, as originally proposed, 230. Benefits of, to North and South, 303. Conception of, gradually attained, 311. Hopes of framers of, exceeded, 311. Sprung from necessities of commerce, 312. Objections to, of favoring slavery, superficial, 313. Proper mode of judging, 313. Rights guaranteed to States by, 314. Beneficent operation of, on condition of slaves, 315. Provision of, respecting power of Congress over Territories, 355; purpose of, 355; explanation of, 357. Adoption of, 372. Preamble to, 372. Supreme law, 374. Binding on all judicial officers, 374. Complex character of, 379. Workings of, not impaired by territorial growth, 381. Success of, when other systems had failed, cause of, 384. Proposed by Governor Randolph, 410. Cases arising under, meaning of, 430. Confers few special powers on general government, 432. Restrictions laid on States by, 432. Powers of national and State governments determined by, 436. Designed to form a more perfect union, 448. Inter-state privileges under, 448. Amendments of, how proposed and adopted, 473. Oath to support, by whom to be taken, 478. Religious test never to be required under, 478. Serious questions respecting mode of establishing, 479. Effect of ratification of, by only part of States, 484. Formal assent of States to, in Convention, 485. Form of attestation to, 485. Refusal of three delegates to sign, 485. Presentation of, to Congress, 486. Probable consequences of rejection of, 487. Issue presented by, to people of United States, 487. Attempt to introduce monarchy averted by, 494. Published September 19th, 1787, 495. Reception of, among the people, 495. Friends and opponents of, classified, 495. Advocates of, why styled Federalists, 496. Adopted by intelligent majority in each State, 499. Reception of, by Congress, 499. Attempt in Congress to arrest or alter, 499. Real crisis of, 515. General and special opposition to, 515. People predisposed to adopt, 516. First ratified by Delaware, 518. Right of people to change at pleasure, 522. Bestows only a part of power of people, 522. Ratification of, rejoicings in honor of, 540. Anxiety respecting State action on, 544. Amendments of, proposed by South Carolina, 548. Opposition to, in New York, 572. Adoption of, an event unparalleled in history, 584. Opponents of, concessions to, justified, 590. _Constitutions_, written, how far existed before the Revolution, I. 4. Of the States, origin and character of, 261. _Constitutional Convention_, first suggestion of, I. 206. First suggested by Massachusetts, 336. Suggestion of Massachusetts respecting, not adopted, 337; withdrawn, 338; objections of her delegates in Congress to, 339. Urged by various public bodies, 349. Considered and adopted by Congress, 350. Early recommendations of, 350. Recommended by the Annapolis Commissioners, 350; by Congress, 361. Difficulties of its position, 367. Powers of, not strictly defined, 367. Opinions of leading statesmen respecting, 373. Assembles at Philadelphia, 374. Novelty and peculiarity of its task, 374. List of members of, 516. Great object of, II. 5. Members of, character of, 17; different views of, 17; greatness of, 144. Authority and powers of, uncertain, 18. All States but Rhode Island represented in, 23. Presence of all States in, not required, 26. Had no power to enact or establish, 29. Character of, 29. Proceedings of, how to be studied, 29; secrecy of, 491; singular rumors respecting, 492. Supposed want of authority in, to propose fundamental changes, 91. Report of committee of the whole made to, June 19th, 129. Struggle in, respecting form of Constitution, 129. Disruption of, imminent at one time, 142. Possible consequences of failure of, 143. Resolution recommending, 185. Instructions to delegates to, 185. Causes of success of, 475. A second, inexpedient, 475, 589. Dissolved September 14th, 1787, 491. _Constitutional Law, American_, originates in The Federalist, I. 417. Questions of, how determined, II. 375. _Constitutionality_ of laws, questions of, how settled, II. 433. _Construction_, questions of, how far considered, II. 4. _Consuls_, to be nominated by President, I. 418. Cases affecting, jurisdiction of, 444. _Continental Congress_, formation of first, I. 3. Advised by Franklin in 1773, 10. First suggestion of, 11. Recommended by Virginia, 11. Appointed for September, 1774, 12. Declared expedient by Massachusetts, 12. First, assembled and organized, 13; delegates to, how appointed, 13; how composed, 14; method of voting in, 15; relation of, to the people of the several Colonies, 15; purpose of, not revolutionary, 16; instructions to delegates in, 18; how it sought redress, 18, 19; revolutionary tendency of, 19; assumed guardianship of rights and liberties, 19; proceedings of, in stating rights, 20; duration of, 24; adjournment of, 25; recommends another Congress, 25; where held from 1774 to 1783, 226; each Colony had one vote in, II. 227. Second, election of delegates to, by Massachusetts Provincial Congress, I. 27; assembles at Philadelphia, 28; delegates to, how appointed, 29; instructions to delegates to, 29; rule of voting in, 29; powers assumed by, 31. Becomes a permanent body, 30. Petition of, to the King, 38. Dissolves the allegiance of the Colonies to the King, 38. Becomes a revolutionary government, 39. Nature of the government by, 54. Situation of, at the end of 1776, 100. Change in the members of, in 1777, 104. Credentials of members of, in 1776, 105. Constitution of, II. 42. _Continental Currency_ first issued, I. 34. _Contracts_, restraint on legislative violation of, origin of, II. 361, 365; obligation of, impaired by State law, redress in case of, 433. See _Obligation of Contracts_. _Contribution_, rule of, attempted to be changed, I. 210. _Convention_, at Williamsburg, I. 12. At Hartford, in 1779, 205. _Convention of all the States._ See _Constitutional Convention_. _Copyrights_, State legislation concerning, II. 339. Power over, surrendered to Congress, 339. CORNWALLIS, enters Newark, I. 98. Effect of capture of, 157. _Council_, vacancies in, how filled in provincial governments, I. 4. Suspension of, from office in provincial governments, 4. Part of the provincial governments, 4; charter governments, 5. How chosen, 5. _Council of Revision_, proposed, dangers of, II. 435; much favored in Convention, 438; purpose of, 438. _Counterfeiting_, power of Congress to define and punish, II. 332. _Courts_, inferior, Congress may establish, II. 330, 423. _Courts of United States_, jurisdiction of, over persons of certain character, II. 441. Admiralty and maritime jurisdiction of, 445. _Creditors_, rights of, secured by the Treaty of Peace, I. 250. _Crimes_, trial for, to be in State where committed, II. 424; to be by jury, 424. _Crown_, the source of political power in the Colonies, I. 3. Powers of, in provincial governments, 4. _Currency_ under Revolutionary government, I. 78. CUSHING, THOMAS, suggests Continental Congress, I. 11. Delegate to first Continental Congress, 13. D. DANE, NATHAN, author of Ordinance of 1787, II. 344, 365. _Debts_ due to English merchants at the peace, I. 250. Action of Congress respecting, 258. Of States, proposition to assume, II. 319. Of United States, provision for payment of, 320; power of Congress to pay, 322. _Debt of the United States_, in 1783, I. 172. Foreign and domestic, where held, 178. National character of, 182. Necessity of revenue power to discharge, 183. Amount of, at the close of the war, 184. _Declaration of Independence_, authorship of, I. 81. Effect of, upon the country, 89; upon Congress, 90. See _Independence_. _Declaration of Rights_, by first Continental Congress, I. 22. _Delaware_, a proprietary government, I. 5. Constitution of, formed, 122. Resists the claim of great States to Western lands, 131. Ratifies the Confederation, 135. Action of, commended, 138. Resolves of, respecting the Articles of Confederation, 498. Opposed to change in rule of suffrage, II. 35; to division of legislature, 133; to census of free inhabitants, 153; to striking out wealth from rule of representation, 164; to referring Constitution to people, 185; to property qualification for office, 189; to restricting President to stated salary, 407. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218; respecting slave-trade, 305; respecting admission of States, 354. In favor of equality of suffrage in House of Representatives, 138; of equality of States in Senate, 165; of executive holding office during "good behavior," 173; of referring Constitution to State legislatures, 184; of each State having one vote in Senate, 227; of taxing exports, 296. Had one representative in first House, 149. Ratification of Constitution by, 515, 518. Patriotism of, 518. Enlightened by discussions on Constitution in Pennsylvania convention, 518. _Delaware River_, Washington crosses the, I. 99. _Delegate_, Territorial, position of, in Congress, II. 256. _Democracy_, did not originate in America, II. 7. Principle of, how modified in America, 7. _Departments of Government_, division of, I. 118. DICKINSON, JOHN, in favor of tax on exports, II. 284. _Dictatorship._ See _Washington_. _District of Columbia_, under exclusive government of Congress, II. 277. _Dock-Yards_, authority of Congress over, II. 340. DORSET, Duke of, reply of, to the American Commissioners, I. 289. DUANE, JAMES, efforts of, to procure adoption of Constitution by New York, II. 585. _Duties_, power to levy, asked for by Congress in 1781, I. 173; not given, 174. Power of Congress to impose, II. 322. To be uniform throughout United States, 325. What may be laid by States, 368. Laid by States, net produce of, how applied, 368; subject to revision of Congress, 368. Payment of, how compelled, 433. E. _Eastern States_, course of, respecting the navigation of the Mississippi, I. 315. _Elections_, frequency of, favored, II. 241. _Elective Franchise_, could not be confined to native citizens, II. 198. _Electors_, of President, advantages of, II. 175; proposed in committee, 220; number of, 235, 389; embarrassments respecting choice of, 388; mode of election by, 390; case of no choice by, 390; required to return votes for two persons, 393; how chosen, 398; method of proceeding, 399; new appointment of, when, 403. Property as a qualification of, 187. Of representatives in Congress, qualification of, 194, 200. ELLSWORTH, OLIVER, compromise respecting Congress proposed by, II. 141. Opposed to tax on exports, 294. Influence and arguments of, in Connecticut convention, 528. _Emigration_, from Europe, a subject of solicitude, II. 195. _England_, government of, not a model for the Constitution, I. 391. _English Language_ spoken by the colonists, I. 3, 9. _English Laws_ inherited by the colonists, I. 9. _Enlistments._ See _Army_ and _Bounties_. _Equity_ and common law, distinction between, preserved by Constitution, II. 425. Jurisdiction under Constitution important, 425. _Europe_, politics of, as affecting America, II. 80. _Excises_, power of Congress to collect, II. 322. To be uniform throughout United States, 325. _Executive_, methods proposed for choice of, II. 59, 171. Duration of office of, under Hamilton's plan, 100. Duration of office of, 171; proposed to be during "good behavior," 173. Re-eligibility of, different views respecting, 172, 175. Choice of, directly by people, difficulties attending, 174. Whether should be subject to impeachment, 175. Choice of, conflict of opinions respecting, 220; proposed to be by Congress for seven years, 220; by electors, 220; by Senate, in certain events, 221; by House of Representatives, 222; by concurrent vote of Senate and House of Representatives, 223, 230; proposed negative of Senate in, 232. Jealousy of, 232. See _President_ and _Vice-President_. _Executive Department_, proposed constitution and powers of, II. 56, 170. Relation of, to legislature, 57, 247. Unknown to Confederation, 60. Powers of, defined by constitutions in America, 72. Influence to be allowed to, over legislative, 244. Action of, requires discretion, 246. "_Executive Power_" vested in President, meaning of, 412. _Exports_, taxation of, Pinckney's proposition concerning, II. 189; refusal of South Carolina to submit to, 281, 285; an undoubted function of government, 282; consequences of denial of, 282; when only beneficial, 282; question of, as affected by variety, 283; members of Convention in favor of, 284; report of committee of detail respecting, 290; great embarrassments respecting, 294; arguments for and against, 294, 297; opposition to, not confined to South, 294; by States, an oppressive power, 295; finally prohibited, 295; for what reasons opposed in Convention, 297; by States, arguments for and against, 368. _Ex Post Facto Laws_, definition of, II. 360, 367. Passage of, prohibited to Congress, 360; to States, 368. F. _Faith and Credit_, to be given to certain acts, &c., I. 143. _Falmouth_ (now Portland), burnt, I. 38, 74. _Faneuil Hall_, meeting at, respecting a national regulation of commerce, I. 336. _Federal Census_, origin of its rule of three fifths, I. 213. _Federal Government_, how distinguished from "national," II. 33. By what States preferred, 117. Arguments in favor of, 124; theoretically sound, 126. Had proved a failure, 127. _Federal Town._ See _Congress_ and _Seat of Government_. _Federalist_, original meaning of, II. 496. Changes in meaning of term, 497. Miniature ship so called, 543. _Federalists_ of Massachusetts, enthusiasm kindled by, II. 541. Of New Hampshire, action of, 541. Of New York, justified by Washington, 590; complaints against, 591. _Federalist, The_, published, I. 409. Character and influence of, 417. History of the editions of, 418. Remark of, respecting Confederation, II. 61. Purpose of publication of, 503. When first issued, 503. Authors of, 503. _Felony_, various meanings of, II. 331. Power of Congress to define and punish, 331. _Finances_, must rest on some source of compulsory revenue, I. 183. See _Debts_, _Revenue_, and _Duties_. _Fisheries_, great value of, II. 310. _Foreigners_, cases affecting, jurisdiction in, II. 443. Cannot demand sanctuary as matter of right, 457. _Foreign Influence_, jealousy of, II. 196, 204, 223. Necessity of counteracting, 211. _Forts_, authority of Congress over, II. 340. _Framers of the Constitution_, difficulties and perplexities of their task, I. 380. Their qualifications, &c., 386. Their success, 393. _France_, debts of the United States to, I. 172. Contracts with the king of, 177. Relations of the United States to, 178. FRANKLIN, BENJAMIN, his plan of union in 1754, I. 8. Advises a Congress in 1773, 10. Appointed Postmaster-General by Continental Congress, 35. One of the committee to prepare Declaration of Independence, 50. One of the commissioners to procure commercial treaties, 287. Returns from Europe, 433. Public services of, 433. Character of, 435. Influence in the Convention, 436. Speech of, at the close of the Convention, 437. Witnesses the success of Washington's administration, 439. Proposition of, respecting representation in Congress, II. 146. Views of, respecting money bills, 218. Opposed to paying President, 405. In favor of plural executive, 405. Views of, respecting executive, quite unlike Hamilton's, 405; respecting consequences of rejection of Constitution, 487. Unbounded confidence of people in, 498. _Free Inhabitants_, privileges of, I. 143. _French Loans._ See _France_. _French Revolution_, early writers of the, I. 378. Begun when Constitution went into operation, II. 80. Interest felt in, in America, 80. _French Troops_, arrive at Newport, I. 156. Join the army at New York, 156. _Fugitives_, from justice, provision for surrender of, under the Confederation, I. 143, II. 449. From service, clause in Constitution respecting, history of, 450. See _Slaves_. G. _General Convention._ See _Constitutional Convention_. _Georgia_, a provincial government, I. 4. Constitution of, formed, 122. Appoints and instructs delegates to the Convention, 369. Had but one chamber in legislature, II. 132. Opposed to equality of suffrage in House of Representatives, 138. Divided on question of equal vote of States in Senate, 141, 148. Had three representatives in first House, 149. Opposed to census of free inhabitants, 153; to equality of States in Senate, 165; to executive holding office during "good behavior," 173. In favor of property qualification for national officers, 204. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218. Divided on question of each State having one vote in Senate, 227. Opposed to taxing exports, 296. Position of, in Convention, respecting slave-trade, 297, 301. Vote of, respecting slave-trade, 305. Cession by, in 1802, 357. Vote of, on suspension of habeas corpus, 360; respecting citizenship clause in Constitution, 453. Ratification of Constitution by, 515, 526. Remoteness of, 526. Situation of, at close of Revolution, 526. Motives of, to embrace Constitution, 526. Address by legislature of, to President Washington, 527. Exposure of, to ravages of Indians, 527. Escape of slaves from, to Florida, 527. GERRY, ELBRIDGE, opposed to numerical representation in Congress, II. 49; to tax on exports, 294. Refused to sign Constitution, why, 485. Censured for refusing to sign Constitution, 501. GILLON, Commodore, arguments of, in convention of South Carolina, II. 548. GORHAM, NATHANIEL, views of, respecting rule of suffrage for House of Representatives, II. 135. A member of committee to apportion representatives, 148. _Government_, disobedience to, how punished, II. 61. Essentials to supremacy of, 62. Different departments in, advantages of, 245. Approximation to perfect theory of, only attainable, 247. Distribution of powers of, when easy, 421; when difficult, 421. _Governor_, part of the provincial governments, I. 4. GRAYSON, WILLIAM, opposed to Constitution, II. 506. _Great Britain_, re-union with, desired by some, II. 493; letter of Colonel Humphreys respecting, 493; Hamilton's views respecting, 494. _Green Dragon Tavern_, meeting at, respecting a national regulation of commerce, I. 336. _Grievances._ See _Colonies_ and _Revolution_. _Guardoqui_, Spanish minister, arrival of, I. 313. Negotiations with, respecting the Mississippi, 313. H. _Habeas Corpus_, privilege of, when suspended, II. 359; under common law of England, 359. _Half-pay_, resisted by Connecticut and Massachusetts, I. 190. History of, 194. Commutation of, 194. See _Officers of the Revolution_. HALLAM, HENRY, Constitutional History of England by, great value of, II. 244. HAMILTON, ALEXANDER, laments the changes in Congress in 1778, I. 127. Exertions of, respecting revenue system, 176. Reasons of, for voting against revenue system, 177. Answers the objections of Rhode Island, 177, 206, 207. On the commercial advantages of a revenue power, 184. On the discontents of the army, and the public credit, 197. Opinions of, concerning the reorganization, &c., in 1780, 202. Maintains that Congress should have greatly enlarged powers, 204. Suggests a convention of all the States in 1780, 205. Enters Congress, 206. On a revenue, and the mode of collecting it, 207. On the compatibility of federal and State powers, 207. On the appointment of revenue officers, 208. Extent of views of, 209. On the rule of contribution, 210. On the necessity for power of taxation, 211. Seeks to introduce new principles, 211. On a peace establishment, 214. Opinions on the powers that should be given to Congress, 219. Exertions of, to suppress the mutiny at Philadelphia, 220. Views of, respecting defects of the Confederation, 221. Opinions of, too far in advance of the time, 224. Answers New York objections to revenue system, 247. Opinions of, concerning the Confederation, 263. Views of, respecting the regulation of commerce, 277; the statesmanship of America, 278. Induces New York to send delegates to Annapolis, 345. Reports at Annapolis in favor of a general Convention to revise the federal system, 347. Relation of, to the plan of a general Convention, and a national Constitution, 350. Contemplates a new government, 350. Induces the legislature of New York to urge a general Convention, 359. Views of, on the mode of proceeding, 364. Confidence of, in the experiment of a Convention, 373. History and character of, 406. Birth of, 408. Various public services of, 409, II. 593. Talleyrand's opinion of, I. 410. Death of, 410. Views of, respecting the English Constitution, 411. Relation of, to the Constitution, 412. Compared with the younger Pitt, 413, 416. Eminent fitness of, for the times, 414. Advocates the Constitution in the Federalist, 417. Compared with Webster, 418. Anxiety of, about the Constitution, 419. Unjustly charged with monarchical tendencies, II. 11, 94, 110. Views of, respecting Constitution, 94. Principles of civil obedience, as propounded by, 96. Views of, respecting rule of suffrage for House of Representatives, 135; dissolution of Union, 136; choice of President, 174, 240, 392; naturalization, 205; larger House of Representatives, 213. Measures of, respecting summoning of Constitutional Convention, 273. Views of, respecting executive, quite unlike Franklin's, 405; President's power to adjourn Congress, 420. Explanation of, respecting appellate power of Supreme Court, 428. Views of, respecting amendment of Constitution, 477. Objections of, to Constitution, 487. Views of, respecting consequences of rejection of Constitution, 487, 570; possible reunion with Great Britain, 494. Essays of, in Federalist, 503. Believed people predisposed in favor of Constitution, 516. Arrangements of, for transmission of news of action of States on Constitution, 551. Leading spirit in convention of New York, 568. Anxiety of, respecting action of States on Constitution, 569. Had great cause for solicitude, 569. Prospects of usefulness of, 569. Foresight of, respecting operation of Constitution, 570. Had profound understanding of Constitution, 570. Ambition of, 570. Importance of public character and conduct of, 570. Contest of, with opponents of Constitution in New York, 571. Critical position of, as citizen of New York, 571. Reply of, to opponents of Constitution in New York, 572. News received by, of ratification of Constitution by New Hampshire, 573. Letter of, to Madison, respecting chances of ratification by New York, 575. Would have been led by personal ambition to remove from New York, 575. Policy of, national, 577. Reason of, for embracing Constitution, 577. Efforts of, to procure adoption of Constitution by New York, 577, 584. Sends news of ratification by New Hampshire to Madison, 578. Great speech of, in New York convention, in favor of Constitution, 586. Writes to Madison, asking advice respecting New York, 587. Honors paid to, by city of New York, 592. HANCOCK, JOHN, retires from Congress, I. 125. Returns to Congress, 126. President of Massachusetts convention, II. 537. Proposes amendments to Constitution, 537. Great influence of, 537. HARRISON, BENJAMIN, opposed to Constitution, II. 506. _Hartford Convention_, met in 1779, I. 205. _Heights of Haerlem_, occupied by Washington, I. 92. HENRY, PATRICK, Governor of Virginia, I. 126. Declined to attend Convention, II. 173. Opposed to Constitution, 505. Characteristics of, 505, 561. In favor of submitting Constitution to people of Virginia, 510. Leader of opponents of Constitution in Virginia, 552. Jefferson's estimate of, 552. Great popularity of, 552. Wisdom of, lacked comprehensiveness, 553. Great powers of, employed against Constitution, 553. Views of, respecting American spirit of liberty, 553. Considered Bill of Rights essential, 554. Arguments of, against Constitution, 555, 557. Modern scepticism concerning abilities of, 561. Quotes Jefferson's views of Constitution, 561. Opposed to Constitution to the last, in Virginia Convention, 579. Project of, for amending Constitution, 580. Patriotic conduct of, on adoption of Constitution by Virginia, 581. Became earnest defender of Constitution, 582. _House of Burgesses_, of Virginia, dissolved, I. 11. _House of Commons_, ministerial majority of, during Revolution, II. 237. _House of Representatives_, Constitution of, discussion respecting, II. 36. Members of, chosen for two years, 134; qualifications of, 134. Rule of suffrage for, great debate on, 135. Exclusive power of, over money bills, 146, 214. Power of, to fix salaries of government officers, 146. Ratio of representation in, 147, 212. First, apportionment of members for, 148, 151. Basis of, agreed to, 165. Members of, must be twenty-five years old, 203; have been citizens three years, 203; be inhabitants of States from which chosen, 212. Larger, favored by Wilson, Madison, and Hamilton, 213. Ultimate choice of executive by, 222. To present impeachments, 262. Quorum of, 262. To choose its own presiding officer, 263. To vote for President by States, 394. Choice of President by, quorum for, 394; majority of States requisite to, 394. HOWE, SIR WILLIAM, proclamation by, respecting oath of allegiance, I. 106. Takes possession of Philadelphia, 113. Estimate of, concerning the American force at the Brandywine, 113. HUMPHREYS, Colonel, one of Washington's aids, II. 493. Letter of, respecting hopes of loyalists, 493. HUNTINGTON, Governor, influence of, in convention of Connecticut, II. 529. I. _Impeachment_, executive proposed to be removable on, II. 171. Whether executive should be subject to, 176. How to be decided, 232. To be presented by House of Representatives, 262. Of President, causes of, 397. King's pardon cannot be pleaded in bar of, 414. President cannot pardon, 414. King may pardon, 414. _Impeachments_, proposed plan respecting, II. 235. Nature of, and constitutional provisions respecting, 260. To be tried by Senate, 261. _Imposts_, power of Congress to collect, II. 322. To be uniform throughout United States, 325. What may be laid by States, 368. Laid by States, net produce of, how applied, 368; subject to the revision of Congress, 368. Revenue from, easiest mode of paying expenses of government, 528. _Indian Affairs_, superintendence of, assumed by Continental Congress, I. 35. _Indians_, position of, II. 325. Commerce with, 325; regulated by federal authority, 326; provision of Confederation respecting, 326. Not regarded as foreign nations, 326. _Independence_, resolution of, adopted in Congress, I. 49. Declaration of, ordered to be prepared, 50; brought in, 51; adopted, 51; effect of, 51. _Inspection Laws_, subject to what abuse, II. 368. _Insurrection._ See _Massachusetts_ and _Shays's Rebellion_. J. JAY, JOHN, report of, on the infractions of the Treaty of Peace, I. 254, 257. Projected mission of, to Spain, 313. Proceedings of, as Secretary for Foreign Affairs, respecting the Mississippi, 313. Essays of, in Federalist, II. 503. Efforts of, to procure adoption of Constitution by New York, 585. JEFFERSON, THOMAS, one of the committee to prepare Declaration of Independence, I. 50. Account by, concerning the Congress of 1776, 64. Account by, of Declaration of Independence, 82. In the legislature of Virginia, 126. One of the commissioners to procure commercial treaties, 287. On the surrender of the Mississippi, 321. Suggests the decimal coinage, 443. Views of, respecting admission of States, II. 76. Resolve of, for organization of States from Northwestern Territory, 343. Practice of, respecting cabinet, 409. Views of, respecting government, 506; modifications of Constitution, 506. At Paris when Constitution was adopted, 506. Did not counsel rejection of Constitution, 508. Persevered in certain objections to Constitution, 509. Letters of, respecting Constitution, 562, 564. JOHNSON, Dr., of Connecticut, views of, respecting Constitution, II. 128. First suggested present constitution of Congress, 138. _Journal_, to be kept by each house of Congress, II. 263. _Judges_, tenure of office of, II. 67; in England, 67. Removal of, 68. Power of removal of, in England, 69; in Massachusetts, 70. "Good behavior" of, 70. _Judicial Power of United States_, to settle disputes between State and nation, II. 54. Unknown to Confederation, 60. Necessity and office of, 61. Intent evinced by introduction of, 63. Made supreme, 64. Coextensive with legislative, 65. Control of, over State legislation, 66. Formation of, 421. Great embarrassments respecting, 422. Admirable structure of, 422. Jurisdiction of, cases embraced by, 423. Great importance of clearly defining, 425. Embraces cases under Constitution, laws, and treaties, 429. Changes and improvements in original plan of, 431. Constitutional functions of, 431. Leading purposes of, 431. May declare laws unconstitutional, 434. Simplicity, &c. given by, to operation of government, 437. _Judiciary_, functions of, II. 63, 432. Question concerning number of tribunals in, 65. Proposed powers of, 66. Restriction respecting salary of, 176. Jurisdiction of, respecting impeachment of national officers, 176; over cases arising under national laws, 176; over questions involving national peace, 176. Action of, not to be influenced by other departments, 246. _Judiciary of Massachusetts_, attempt to alter the charter in respect to, I. 6. K. _Kentucky_, inhabitants of, resist the surrender of the Mississippi, I. 322. KING, RUFUS, birth and education of, I. 448. Public services of, 448. Proposes the clause respecting the obligation of contracts, 452; II. 365. Senator in Congress, I. 453. Minister to England, 453. A member of committee to apportion representatives, II. 148. Views of, respecting Senate, 225; seat of government, 275. Remarks of, respecting slave-trade, 281. Views of, respecting representation of slaves, 292. Effort of, to exclude slavery from Northwestern Territory, 343. L. _Land_ as the basis of a rule for contribution, I. 210. Adopted as measure of wealth by Congress of 1776, II. 160. Of United States unappropriated, Madison's motion respecting, 351. _Lands_, right of aliens to hold, proposed in certain treaties, I. 280. See _Western Lands_ and _Territory_. _Law of Nations_, offences against, II. 330; power of Congress to define and punish, 331. Respecting extradition of fugitives, 456. _Laws_ of United States, how enacted, II. 264; supreme, 372, 374; to be in pursuance of Constitution, 374; cases arising under, jurisdiction over, 430. Of States, constitutionality of, 374. Constitutionality of, how determined, 434. LAW, RICHARD, influence of, in convention of Connecticut, II. 529. LEE, CHARLES, General, expedition of, against the Tories of New York, I. 66. LEE, RICHARD HENRY, moves the resolution of independency, I. 49. Account of, 49. On the navigation of the Mississippi, 315. Proposition of, in Congress, to amend Constitution, II. 500. Opposed to Constitution, 506. _Legislative Department_, division of, into two chambers, I. 119. Omnipotent in England, 72. Powers of, limited in America by constitutions, 72. Hamilton's views respecting, II. 100, 103, 105. Great struggle respecting, in Constitutional Convention, 130. Objections to one chamber in, 130. How far may safely be influenced by executive, 244. Action of, requires discretion, 246. Close relation of, to executive, 247. _Letters of Marque and Reprisal_ issued by Massachusetts in 1775, I. 75. Power of Congress to grant, II. 332. _Lexington_, battle of, I. 27. LIVINGSTON, ROBERT R., one of the committee to prepare Declaration of Independence, I. 50. Remarks of, in convention of New York, II. 574. Efforts of, to procure adoption of Constitution by New York, 585. _Long Island_, battle of, I. 91. LOWNDES, RAWLINS, opposed to Constitution, II. 510. Arguments of, against Constitution, 511. _Loyalists_, scheme of, respecting Bishop of Osnaburg, II. 492. Numbers of, small, 493. Alarm occasioned by supposed scheme of, 493. See _Tories_. M. MADISON, JAMES, enters the Revolutionary Congress, I. 126. Exertions of, respecting revenue system, 176. Writes the address in favor of revenue system, 177. Answers Massachusetts on the half-pay, 193. Birth of, 420. Public services of, to the close of the war, 420. Initiates the Virginia measures leading to a general Convention, 423. Attends the convention at Annapolis, 427. Attends the general Convention, 427. Labors of, in the Convention, 427. Opinions and character of, 428. Described by Jefferson, 430. Letter of, to Philip Mazzei, 431. Action of, respecting change in rule of suffrage, II. 36. Views of, respecting national government, 40; Senate, 41; revision by Congress of State legislation, 54; revisionary check on legislation by executive, 58; use of force against States, 62; Constitution, 106; rule of suffrage for House of Representatives, 135; dissolution of Union, 136; Western States, 152. How far in favor of executive during "good behavior," 173. Views of, respecting difference between Constitution and league, 184; naturalization, 205. In favor of larger House of Representatives, 213. Views of, respecting eligibility of members of Congress to office, 250; seat of government, 275. In favor of tax on exports, 284. Views of, respecting slave-trade, 304. Proposition of, respecting Indian affairs, 327. Views of, respecting legislation of Congress of Confederation over Northwestern Territory, 345, 348, 351. Views and votes of, concerning Northwestern Territory, 348. Holds regulation of commerce to be indivisible, 371. Views of, respecting treason, 386. Motion of, respecting election of President, 403. Views of, respecting amendment of Constitution, 477; consequences of rejection of Constitution, 487. Proposed amendment of Constitution by Congress, defeated by, 500. Essays of, in Federalist, 503. A leading advocate of Constitution in Virginia, 506. Reply of, to opponents of Constitution in Virginia convention, 558. Description of new government by, 559. Efforts of, in Virginia convention, 564. Opinion of, respecting conditional ratification of Constitution, 588. _Magazines_, authority of Congress over, II. 340. _Majority_, principle of, seldom to be departed from, II. 299. _Mandamus Councillors_, appointment of, in Massachusetts, I. 25. Treatment of, by the people, 25. MANLY, JOHN, commander of the Lee, I. 74. Captures a prize, 75. _Maritime Jurisdiction_, of courts of United States, II. 445. Under Confederation, 445. MARSHALL, JOHN, a leading advocate of Constitution in Virginia, II. 506. MARTIN, LUTHER, views of, respecting Constitution, II. 92, 121; rule of suffrage for House of Representatives, 135; manner of voting in Senate, 186. Motion of, respecting admission of States, 354. Supremacy of Constitution, &c. proposed by, 374. Great opposition of, to Constitution, 484, 512. Communication of, to legislature of Maryland, 512; chief ground of, 513. MARTINDALE, captain in the Revolutionary naval force, I. 74. _Maryland_, a proprietary government, I. 5. Constitution of, formed, 122. Remonstrates against the claims to Western lands, 131, 421. Ratifies the Constitution, 136. Action of, commended, 138. Appoints and instructs delegates to the Convention, 369. Action of, upon the Articles of Confederation, 501. Delegates from, divided in opinion, II. 121. Divided on question of national legislature, 133; equality of suffrage in House of Representatives, 138. In favor of equal representation of States in Senate, 141, 165. Had six representatives in first House, 149. Opposed to census of free inhabitants, 153; executive holding office during "good behavior," 173. In favor of referring Constitution to State legislatures, 184; each State having one vote in Senate, 186, 227. Vote of, respecting citizenship, as qualification for office, 209; money bills, 216, 218. Opposed to nine years' citizenship as qualification of senator, 224; taxing exports, 296. Vote of, respecting slave-trade, 305; admission of States, 354. Action of legislature of, respecting Constitution, 511. Convention of, to vote on Constitution, 514; importance of action of, 542; efforts made in, to amend Constitution, defeated, 543. MASON, GEORGE, views of, respecting Constitution, II. 123. Objections of, to compound ratio of representation, 151. Views of, respecting money bills, 218. Opposed to tax on exports, 294. Proposition of, to restrain grants of perpetual revenue, 319. Views of, respecting militia, 337. Refused to sign Constitution, why, 485, 509. Great ability of, 505. Opposed to Constitution, 505. In favor of submitting Constitution to people of Virginia, 509. Arguments of, against Constitution, in Virginia convention, 557. _Massachusetts_, a charter government, I. 5. Provincial governor of, appointed by the crown, 5. Council of, chosen by Assembly, 5. Representatives of, chosen by the people, 5. Appoints delegates to first Continental Congress, 12. Colonial government of, how ended, 25. Provincial Congress of, how formed, 26. Authority assumed by Provincial Congress, 26. Applies to the Continental Congress, for direction and assistance, 31; about government, 32. Army raised by, in 1775, 31. Issues letters of marque and reprisal, 75. Establishes prize court, 75. Money borrowed of, by General Washington, 80. Constitution of, formed, 121. Objections of, to the half-pay, 191; answered by Madison, 193. Act of, concerning British debts, 253. Constitution of, dangers to which it was exposed, 263. Insurrection in, 266, II. 83. Disaffection in, extensive, I. 273. Cedes claims to Western Territory, 300. Proceedings of, respecting a general Convention, 334. Condition of the trade of, in 1785-86, 335. Legislature of, proposes a general Convention, 336; resolutions of, not presented to Congress, 337. Resolution of, for a general Convention, 361. Appoints and instructs delegates to the Convention, 369. Opposed to equality of suffrage in House of Representatives, II. 138; equal representation of States in Senate, 141, 217. Divided on question of equal vote of States in Senate, 148, 165. Had eight representatives in first House, 149. In favor of census of free inhabitants, 153. Opposed to executive holding office during "good behavior," 173. Qualifications of voter in, 188. In favor of property qualification for national officers, 204. Vote of, respecting citizenship as qualification for office, 209; money bills, 216, 218. Opposed to nine years' citizenship as qualification of Senator, 224; each State having one vote in Senate, 227. Sentiments of, respecting holding of office by members of Congress, 249. In favor of States paying members of Congress, 259. Opposed to taxing exports, 296. Vote of, respecting slave-trade, 305. Slavery in, as early as 1630, 454. Parties in, for and against Constitution, 501. Reception of Constitution in, 501. Convention in, to vote on Constitution, 502, 530. Formidable opposition to Constitution in convention of, 529. High rank of, 530. Vacillation of, 530. Revolutionary history of, 530. Anxiety respecting action of, on Constitution, 531. Insurrection in, effect of, 531. Constitution exposed to peculiar hazard in, 531; ratified in, by compromise, 531. Constitution of, excellence of, 531. Parties in convention of, 532. Convention in, amendments to Constitution recommended by, 532, 538, 539; opponents of Constitution in, 533, 534; eminent men in, 534. Probable disastrous effects of rejection of Constitution by, 535. Convention of, proceedings in, 536; discussion in, respecting Hancock's amendments to Constitution, 538; patriotic conduct of, 539. Enthusiasm kindled by action of, 541. MAZZEI, PHILIP, letter to, by Madison, I. 431. MCKEAN, THOMAS, views of, respecting Constitution, II. 523. Public services of, 524. MIFFLIN, General, sent by Washington to the Congress, I. 98. _Military Posts_, retained by the British after the treaty, I. 256, 259. _Militia_, relation of, to the Continental Congress, I. 35. Committee on, II. 319. Of States, power of general government over, 334; inefficient as troops in Revolution, 334; lack of uniformity among, 335; power of general government over, necessary, 336; how to be disciplined, 337; when Congress may call forth, 338; President commander-in-chief of, 413; cannot call out without authority of Congress, 413. _Ministers._ See _Ambassadors_. _Mint_, establishment of, I. 444. _Mississippi River_, controversy and negotiations respecting navigation of, I. 310; referred to the new government, 327. Navigation of, a topic of opponents of Constitution in Virginia convention, II. 565; Madison's views respecting, 567. _Mississippi Valley_, people of, spirit of the, I. 319; retaliate upon the Spanish authorities, 322; form committees, &c., 323. _Monarchical Government_, dangers of attempting to establish, I. 370. _Monarchy_, detested by people of United States, II. 237, 492. Proposed, rumors of, 492. Attempt to introduce, averted by Constitution, 494. _Money_, power to coin, given to Congress, II. 328; borrow, and emit bills, 328. _Money Bills_, Originated by House of Representatives, II. 146. Provision concerning, objected to, 147; origin of, 214. Originated by House of Commons, 216. Hallam's discussion respecting, 216. Vote of States respecting, 216. Different propositions in Convention respecting, 219. May be amended in Senate, 222. MONTESQUIEU, political discussions of, alluded to, I. 377. MORRIS, GOUVERNEUR, Enters the Revolutionary Congress, I. 127. Birth of, 440. Public services of, 440. Chosen Assistant Financier, 443. Author of the decimal notation, 443. Prepares the text of the Constitution, 444. Character of, 444. First Minister to France, 447. Senator from New York, 447. Invited to write in The Federalist, 447. Death of, 447. Action of, respecting change in rule of suffrage, II. 36. A member of committee to apportion representatives, 148. Views of, respecting Atlantic and Western States, 152; respecting compound ratio of representation, 152. Proviso of, respecting taxation and representation, 158. Views of, respecting choice of executive, 174. Remarks of, respecting slave-trade, 281. In favor of tax on exports, 284. Views of, on concession to Southern States, 293. Committee of compromise proposed by, 301. Proposition of, respecting vacant lands, 355. MORRIS, ROBERT, on a committee to inform Washington of extraordinary powers, I. 101. Laments the absence of some great revolutionary characters, 104. Appointed Superintendent of Finances, 174. Resignation of, 198. _Mutiny_, at Philadelphia, of federal troops, I. 220. N. _Natchez_, seizure of property at, by Spanish authorities, I. 318. _National Government_, how distinguished from "federal," II. 33. Necessities of, 34. To be kept distinct from State governments, 37. By what States preferred, 117. Arguments in favor of, 122; theoretically sound, 126; strengthened by facts of previous history, 127. Supposed tendency of, to absorb State sovereignties, 128. Self-defence a principal object of, 292. _National Legislature_, how to be constituted, II. 35. Divided into two branches, 36. Representation in, diverse views respecting, 36; as affected by State interests, 43; difficulty in fixing ratio of, 43. Unanimity respecting powers of, in Convention, 50. Negative by, on State legislatures, proposed, 51. Must operate directly on people, 63. Proposed powers of, 65. _Naturalization_, a subject of solicitude, II. 196. Formerly a State power, 198, 199. A proper subject of constitutional provision, 200. Power of, transferred from State to national government, 201. Views of Hamilton and Madison respecting, 205. Embarrassments of subject, 205. Uniform rule of, power to establish, given to Congress, 328. _Naval Force_, employment of, in Massachusetts Bay, I. 73. _Navigation Act_, report of committee of detail respecting, II. 290, 301. Position of Southern States respecting, 297. Two-thirds vote proposed by them to be required for, 299. Interest of different States respecting, 301. Passage of, by majority, agreed to, 304. _Navy_, origin of the Revolutionary, I. 73. Want of, II. 298. Power of Congress to provide and maintain, 334; to make rules for, 334. Power of President to employ, 413. President commander-in-chief of, 413. _Newark_, Washington's evacuation of, I. 98. _Newburgh Addresses_, authorship and style of, I. 168. Copy of, sent to the States, 177. Note on, 194. _New England_, confederation of, in 1643, II. 453. _New Hampshire_, a provincial government, I. 4. Ante-Revolutionary government of, 4. Constitution of, formed, 119. Appoints and instructs delegates to the Convention, 369. Late attendance of, in Convention, II. 24. Had three representatives in first House, 149. In favor of property qualification for national officers, 204. Vote of, respecting citizenship, as qualification for office, 209; respecting money bills, 218; respecting slave-trade, 305. In favor of taxing exports, 296. Vote on Constitution in, postponed, why, 510; effect of, on parties in Virginia, 510. Population of, easily led to oppose Constitution, 514. Convention of, to vote on Constitution, 514; members of, instructed to reject Constitution, 529; amendments presented to, 541; majority of, at first opposed to Constitution, 541; adjournment of, effect of, 541. Action of Federalists of, 541. Convention of, meets, on adjournment, 549; anxiety respecting action of, 549. Ratification of Constitution by, 573. Ninth State to ratify Constitution, 578. _New Jersey_, a provincial government, I. 4. Washington's retreat through, 97. Constitution of, formed, 122. Proposal of, in 1778, for the regulation of commerce, 129. Resists the claim of great States to Western lands, 131. Ratifies the Confederation, 135. Action of, commended, 138. Attempts to pay its quotas in paper money, 242. Recommends the regulation of commerce, 277. Appoints and instructs delegates to the Convention, 368. Representation of, concerning the Articles of Confederation, 493. Act of, accepting them, 497. Purely "federal" government proposed by, II. 92. Hamilton's plan of, radical objections to, 99; condemned by Madison, 106. Opposed to division of legislature, 133. In favor of equality of suffrage in House of Representatives, 138; of equal representation of States in Senate, 141, 148, 165. Had four representatives in first House, 149. In favor of census of free inhabitants, 153; of executive holding office during "good behavior," 173. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218. In favor of each State having one vote in Senate, 227. Vote of, respecting eligibility of members of Congress to office, 251; respecting representation of slaves, 293; respecting slave-trade, 305; respecting admission of States, 354. In favor of taxing exports, 296. Opposed to restricting President to stated salary, 407. Ratification of Constitution by, 515. Convention of, 524. Position of, respecting Constitution, 524. Always in favor of vesting regulation of commerce in general government, 525. Action of, in Constitutional Convention, respecting representation, 525. _New States_, admission of, under the Confederation, I. 292; under the Ordinance of 1787, 308. See _Western Territory_ and _Northwestern Territory_. _New York_, Constitution of, formed, I. 122. Magnanimity of, commended, 137. Action of, upon the revenue system of 1783, 246. Act of, respecting British debts, 253. Trespass act of, 256. Proceedings of, respecting a general commercial convention, 343, 358. Resolution of, for a general Convention, 360; how received in Congress, 360. Appoints and instructs delegates to the Convention, 369. Act of, respecting boundaries, &c., 505. Rank of, at formation of Constitution, II. 118. Commerce of, at formation of Constitution, 118. Views of public men of, 118. Opposed to division of legislature, 133. In favor of equality of suffrage in House of Representatives, 138; in Senate, 141, 148. Had six representatives in first House, 149. Withdrawal of delegates of, from Convention, 165, 182, 484, 502. Rejection of Constitution by, probable, 182. Vote of, respecting money bills, 216. In favor of each State having one vote in Senate, 227. Reception of Constitution in, 502. Executive government of, opposed to Constitution, 502. Jealousy of Union existing in, 502. Letter of delegates of, against Constitution, 502. Proceedings of legislature of, respecting Constitution, 503; of parties in, respecting Constitution, 503. Convention of, to vote on Constitution, 504. Formidable opposition to Constitution in convention of, 529. Legislature of, divided on question of submitting Constitution to people, 536. Convention of, importance of action of, 542; time of meeting of, 549; anxiety respecting action of, 549; met at Poughkeepsie, 549; Hamilton leading spirit in, 568; discussion in, respecting system of representation proposed by Constitution, 573. Opponents of Constitution in, arguments and plan of, 572; Hamilton's reply to, 572. Effect on, of ratification by New Hampshire, 574. Opponents of Constitution in, schemes of, 584. Numerous amendments to Constitution proposed by, 587. Plan of, to adopt Constitution conditionally, 587. Great struggle in, over ratification of Constitution, 588. Circular letter from, to all other States, 588. Federalists of, justified by Washington, 590; complaints against, 591. _New York City_, applies to the Continental Congress respecting British troops, I. 31. Occupied by the British, 91. Temporary establishment of seat of government at, effect of, 591. Celebration in, of adoption of Constitution, 592. Honors paid by, to Hamilton, 592. NICHOLAS, GEORGE, a leading advocate of Constitution in Virginia, II. 506. _Nobility_, title of, cannot be granted by Congress, II. 362. _Non-Intercourse_, when and why adopted by Colonies, I. 23. Association for, recommended and adopted, 24. _North Carolina_, a provincial government, I. 4. Constitution of, formed, 122. Appoints and instructs delegates to the Convention, 369. Opposed to equality of suffrage in House of Representatives, II. 138; to equality of votes in Senate, 141, 217. Vote of, respecting equal vote of States in Senate, 141, 148, 165; respecting census of free inhabitants, 153. Had five representatives in first House, 149. Opposed to executive holding office during "good behavior," 173. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218. Divided on question of nine years' citizenship as qualification of Senator, 224. Opposed to each State having one vote in Senate, 227; to taxing exports, 296. Position of, in Convention, respecting slave-trade, 297, 301. Vote of, respecting slave-trade, 305; on suspension of habeas corpus, 360. Cession by, in 1790, 357. Opposed to restricting President to stated salary, 407. Convention of, Anti-Federal majority in, 596; debate in, 596; amendments to Constitution proposed by, 597; peculiar action of, 597. Attitude of, placed Union in new crisis, 603. _Northern States_, in favor of granting to government full revenue and commercial powers, II. 292. Chief motive of, for forming Constitution a commercial one, 298. Cut off from British West India trade, 298. Separate interests of, different, 300. _Northwestern Territory_ ceded by Virginia, I. 137, 295. Cession modified, 300. Ordinance respecting, why framed, 301; provisions of, 302; character of, 306. Ordinance for, reported, 452. Cession of, II. 15. Origin and relations of, &c., 341. Jefferson's resolve for organization of States in, 343. Slavery in, proposals for prohibiting, 343. Ceded on what trusts, 347, 349. Admission of new States under, see _New States_. O. _Oath_, of office, proposed by New Jersey in 1778, I. 130. _Oath of Allegiance_, to the King, received by Sir William Howe in New Jersey, I. 106. To the United States required by Washington in New Jersey, 107; dissatisfaction occasioned by, 107. Propriety of, defended by Washington, 108. Prescribed in Congress in 1778, 109. _Obligation of Contracts_, clause respecting, taken from the Ordinance of 1787, I. 452. _Officers_ of United States, appointment of, II. 417. _Officers of the Revolution_, treatment of, by Congress, and the country, I. 159. Pay of, 159. Proceedings in Congress respecting half-pay for, 160. Pennsylvania line, 163. Proceedings of, respecting their pay, 165. See _Army of the Revolution_, _Half-pay_, and _Newburgh Addresses_. _Oligarchy_, detested by people of United States, II. 237. _Orders in Council_, respecting trade with the United States, I. 283. Efforts of Congress to counteract, 285. Effect of, on Northern States, II. 298. _Ordinance of 1787_, framing of, I. 452. Admission of new States provided for by, II. 77. Fixed no mode of admitting new States, 79. Provisions of, 344. Slavery excluded by, 344. Author of, 344, 365. Passed, 365. Character of, 366. Provision in, respecting contracts, occasion of, 366. Extradition of slaves under, 454. _Osnaburg, Bishop of_, rumored purpose of loyalists respecting, II. 492. Afterwards Duke of York, 493. P. PAINE, ROBERT TREAT, delegate to first Continental Congress, I. 13. PALFREY, Colonel, sent to New Hampshire to arrest Tories, I. 65. _Paper Money_, first issued by the Continental Congress, I. 78. Signing of, 78. State systems of, under Confederation, II. 310. See _Rhode Island_. _Pardon_, President's power of, II. 413. See _Treason_. _Parliament, British_, authority of, over trade, how recognized by first Continental Congress, I. 20. Two houses in, origin of, II. 130; mutual relations of, 130. Corruption in, origin and extent of, 242; effect of knowledge of, on framers of Constitution, 243. Necessity of officers of state, &c. sitting in, 254. Analogy of Congress to, 254. PARSONS, THEOPHILUS, motion of, in Massachusetts Convention, to ratify Constitution, II. 537. Form of ratification and proposed amendments drawn by, 541. _Patents_ for useful inventions, subject of, brought forward by Pinckney, II. 339. State legislation concerning, 339. Power over, surrendered to Congress, 339. PATTERSON, WILLIAM, mover of New Jersey plan of government, II. 93. Arguments of, in Convention, 93. _Peace_, effect of, upon the country, I. 179. See _Treaty of Peace_. _Peace Establishment._ See _Washington_ and _Hamilton_. PENDLETON, Chancellor, a leading advocate of Constitution in Virginia, II. 506. _Pennsylvania_, a proprietary government, I. 5. Constitution of, formed, 122. Stop-law of, 253. Appoints and instructs delegates to the Convention, 368. Had but one chamber in legislature, II. 132. Opposed to election of Senators by State legislatures, 135; to equality of suffrage in House of Representatives, 138; to equal representation of States in Senate, 141, 148, 165, 217. Had eight representatives in first House, 149. In favor of census of free inhabitants, 153; of executive holding office during good behavior, 173. Opposed to property qualification for office, 189. Constitution of, citizenship under, 206. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 218. Opposed to nine years' citizenship as qualification of Senator, 224; to each State having one vote in Senate, 227; to impeachments being tried by Senate, 262. In favor of taxing exports, 296. Vote of, respecting slave-trade, 305. Ratification of Constitution by, 515. Convention of, first to meet, 519. Second State in population, in 1787, 519. Western counties of, insurrection in, 521; opposition of, to Constitution, 524. _People of America_, when not associated as such, I. 16. Sole original source of political power, II. 38, 471, 482. Will of, how to be exercised, 471; on a new exigency, how to be ascertained, 483. _Petition_, right of assembling for, asserted, I. 23. Of Continental Congress to the King, 23, 38. _Philadelphia_, threatened loss of, to the enemy, I. 99. Falls into the hands of the enemy, 113. Fought for, at the battle of the Brandywine, 113. The scene of many great events, II. 519. Demonstration at, in honor of adoption of Constitution, 582. PICKERING, TIMOTHY, suggests academy at West Point, I. 218. PINCKNEY, CHARLES COTESWORTH, Revolutionary services of, I. 454. Views of, respecting the requisite reform, 455; on the slave-trade, 456, 459, 460; respecting consequences of rejection of Constitution, 487. Proposition of, respecting taxes on exports, II. 189; respecting extradition of slaves, 189, 452. Notifies Convention of position of South Carolina concerning tax on exports, 280. In favor of Constitution, 510. Writes to Washington of adoption of Constitution by South Carolina, 544. Fidelity of, to South Carolina, 545. Arguments of, in South Carolina convention, 548. PINCKNEY, CHARLES, plan of government submitted by, II. 32. Proposition of, respecting House of Representatives, negatived, 40. Suggestions of, respecting public debt, revenue, &c., 319. In favor of Constitution, 510. _Piracy_, nature of, II. 331. Power of Congress to define and punish, 331. PITT, WILLIAM, designs commercial relations with the United States, I. 282. His bill to effect them, 283. His extraordinary opportunities, 413. Estimate of, 414. _Political Science_, among the ancients, I. 374. In the Middle Ages of Europe, 375; in England, 376; in France, 377. _Popular Governments_, American theory of, I. 261. _Population_ of States in 1790, table of, II. 55. _Ports_, no preference to be given to, II. 324. _Post-Office_ department, Continental, first established, I. 35; colonial, 433. Power to establish, extended to post-roads, II. 328. _Preamble_ of Constitution, as reported and adopted, II. 372; language of, important, 373. _President_, making of treaties by, with consent of Senate, II. 234. Officers proposed to be appointed by, with consent of Senate, 234. Re-eligibility of, arguments in favor of, 235. Choice of, proposed method of, 235; by Senate, objections to, 236, 392; ultimate, by House of Representatives, 240, 394. Revisionary control over, where to be lodged, 239. Extensive patronage of, 252. Subject to impeachment, 261; for what causes, 397. Veto power of, 264. Objections of, to law, to be entered on journal of Congress, 264. Choice of, direct, by people, negatived, 388; by electors, objections to, 388; advantages of, 389; method of, 390. Term of office of, proposed to be seven years, 392. Choice of, by majority of electors, objections to, 393. Vacancy in office of, 397; when Congress to provide for, 401. "Inability" of, to discharge duties, meaning of, 397; how ascertained, 397. Insanity of, 397. Death of, and of Vice-President, 398. Choice of, changes in mode of, 400; if not made before 4th of March, 400; by House of Representatives, to be from three highest candidates, 400. Qualifications of, 404. Pay of, arguments in favor of, 404; not to be increased nor diminished during term of office, 406. Forbidden to receive more than stated salary, 407. Council for, question concerning, 407. May require opinions of cabinet officers, 408. Alone responsible for conduct of executive department, 409. Powers of, 409; to make war and peace, 411; over State militia, 413; to pardon offences, 413; to appoint officers, 417. "Executive power" vested in, meaning of, 412. Oath of, to execute laws, 412. Commander-in-chief, 413. To prosecute war, 413. Treaty-making power of, 414. To receive ambassadors, &c., 415. Cannot create offices, 418. To inform Congress of state of Union, 419. To recommend measures to Congress, 419. May call extra sessions of Congress, 419. When may adjourn Congress, 419. PRINGLE, JOHN JULIUS, in favor of Constitution, II. 510. _Prize-Courts_, want of, under the Revolutionary government, I. 73. Establishment of, urged by Washington, 75. Of Massachusetts, trials in, 75. Colonial, appeals from, to Congress, 76. Under Constitution, II. 330. _Property_, urged as basis of representation, II. 148. As a qualification of elector, 148; for office, 187, 202. _Proprietary Governments_, form and character of, I. 5. _Protections_, issued by Sir William Howe in New Jersey, I. 106. Surrender of, required by Washington, 106. _Provincial Governments_, form and character of, I. 4. _Public Lands._ See _Western Territory, Northwestern Territory_, and _Ordinance of_ 1787. Q. _Qualifications_, of national officers, proposals respecting, II. 186; landed, rejected, 187; property, an embarrassing subject, 202. Of electors, 187, 194, 200. Of voter in Massachusetts, 188. Of members of Congress, 194. Of citizenship, embarrassments respecting, 205; attempt to exempt certain persons from rule respecting, 205. Of Senators, 223. Of Vice-President, 401. Of President, 404. Of religious test, never to be required, 479. _Queen's County, Long Island_, inhabitants of, to be disarmed, I. 68. _Quorum_, discussions in Convention respecting, II. 262. _Quotas_, first apportionment of, among the Colonies, I. 34. Of troops in 1776, 92. See _Requisitions_. R. RAMSAY, DAVID, Dr., in favor of Constitution, II. 510. RANDOLPH, EDMUND, urges Washington to attend the Convention, I. 365. Revolutionary services of, 480. Governor of Virginia, 481. Course of, in the Convention, 481. Reasons of, for supporting the Constitution, 481. Genealogy of, 485. Plan of government proposed by, II. 32, 410. A member of committee to apportion representatives, 148. Objections of, to compound ratio of representation, 151. Proposition of, respecting census, 162; to strike out "wealth" from rule of representation, 164. In favor of confining equality of States in Senate to certain cases, 165. Views of, respecting money bills, 218. Resolution of, respecting admission of new States, 349. Clause introduced by, respecting death of President, &c., 403. Refused to sign Constitution, why, 485, 555. Position of, respecting Constitution, 506. Advocated adoption of Constitution in Virginia convention, 556. RANDOLPH, PEYTON, President of first Continental Congress, I. 13; of second Continental Congress, 28. Death and character of, 28. _Ratification_ of Constitution, as marking character of government, II. 85. Different theories respecting, 177. Mode of, 375; resolutions respecting, 375; purpose of, 375; an embarrassing question, 479. Vote of States respecting, 483, 515. By only part of States, effect of, 484. Unanimous, could not be required, 484. By nine States sufficient, 485. Pageants in honor of, 540. Public rejoicings in Baltimore at, 543. By New Hampshire, 573, 578. By Virginia, 578; how finally effected, 579; form of, 581. Vitiated by condition, in Madison's opinion, 588. Great struggle over, in New York, 588. See the different States. _Records and Judicial Proceedings_ of States, full faith to be given to, in other States, II. 449. Proof and effect of, 449. READ, GEORGE, views of, respecting rule of suffrage for House of Representatives, II. 135. _Regulation of Commerce_ proposed by New Jersey in 1778, I. 129. Not provided for by the Confederation, 148. Advantages of, not perceived, 179. Origin of, as a national power, 276. Washington's views respecting, 334. Popular meetings in Boston in favor of, 336. Policy of Congress respecting, in 1785-86, 337. _Representation_, views of members of Convention respecting, II. 18. In Congress, different views respecting, 36; difficulty in fixing ratio of, 44. As affected by State interests, 43. Original division between States respecting, 50. Under Virginia and New Jersey plans, 105. Great difficulty in adjusting, 108. Difficulty of fixing different basis of, for two houses of Congress, 133. Committee to adjust whole system of, 145. Dr. Franklin's proposal in Congress concerning, 146. Ratio of, in House of Representatives, 147. Of slaves, 149. Compound ratio of, depending on numbers and wealth, proposed, 149; objections to, 151; how to be applied, 156. By numbers, as affected by slaves, 153, 291. And taxation to go together, 156. System of, proposed by Constitution, discussion on in New York, 573. _Representatives_, part of the Provincial government, I. 4. In the charter governments, how chosen, 5. Apportionment of, objections to, II. 148; in first House, how made, 148. _Representative Government_ familiar to the American people, I. 117. _Reprisals_ authorized by the Continental Congress, I. 34. _Republican Government_ involved in the effort to make the Constitution, I. 391. Guaranteed to States, II. 177; by Constitution, 458. Guaranty of, to States, object of, 468; meaning of, in America, 469. _Republican Liberty_, nature of, II. 8. How to be preserved, 9. _Resolutions_ as referred to committee of detail, II. 190. _Requisitions_, provision for, under the Confederation, I. 147. Of 1781, 156. Made and not complied with, 174. From 1782 to 1786, how treated, 180. In 1784, 240. In 1785, 242. In 1786, 242. Supply received from, in 1781-1786, 243; inadequacy of, declared by Congress, 245. Effect of, on the proposed revenue system, 244. _Revenue_, report of committee of detail respecting, II. 289. Power over, generally conceded to new government, 290. Different systems of, under Confederation, 310. Powers of government, influence of, 311. Power, qualifications of, proposed, 320. From imports, easiest mode of paying expenses of government, 528. _Revenues_, of the Confederation, I. 147. Want of power in Confederation to obtain, II. 280. Numerous questions respecting, 280. Collection of, by Congress, 323. _Revenue Bills_, privilege of originating, views of members of Convention respecting, II. 221; restricted to House of Representatives, 221. _Revenue System of_ 1783, origin and purpose of, I. 175. Modified by Congress, 180. Defeated by New York, 180. Design of, 185. Effect of its proposal, 186. Character of, 224. Under consideration in 1784, 240. How acted on in 1786, 244. New appeal of Congress on the subject of, 245. Every State assents to, but New York, 246. Act of New York concerning, 246. Hamilton's answer to the New York objections to, 247. New York again appealed to respecting, 247; refuses to accede, 248. Action of New York respecting, 343. Final appeal of Congress for, 344. Rejected by New York, 345, 359. Address on, written by Madison, 422. _Revolution_, right of, II. 473. _Revolutionary Congress_, take up the Articles of Confederation, I. 113. Government of, breaking down, 115. Change in the members of, after 1777, 125. Leading members of, in 1777 and 1778, 126; in 1776, 127. Weakness of, II. 14. See _Congress_. _Revolutionary Government_, defects of, I. 55. _Rhode Island_, a charter government, I. 5. Resists the claim of the great States to Western lands, 131. Refuses to grant imposts to Congress, 174. Hamilton's answer to, 177. Attempts to pay its quotas in paper money, 242. Refusal of, to grant duties on imposts, 422. Not represented in Constitutional Convention, II. 23, 181. Did not assent to revenue system of 1783, 24. Admitted to Union in 1790, 25. Interests of, attended to by Convention, 26. Had one representative in first House, 149. Ratification of Constitution by, improbable, 181. Reason of, for not attending Convention, 329. Took no part in formation of Constitution, 484. Opposition to Constitution in, peculiarly intense, 598; causes of, 598. Jealous of other States, 598. Principles of founders of, falsely applied, 598. Paper money party in, great power of, 599. Great antagonism in, between town and country, 600. Opponents of Constitution in, ridiculed and scorned, 600. Great want of enlightenment in, 601. Action of General Assembly of, on Constitution, 602. People of, apparently nearly unanimous against Constitution, 602. Final prevalence of better counsels in, 603. Present prosperity of, 603. Attitude of, placed Union in new crisis, 603. _Rights._ See _Colonies_. ROBINSON, Mr., Speaker of Virginia House of Burgesses, I. 48. Celebrated compliment of, to Washington, 48. ROUSSEAU, J. J., political discussions of, alluded to, I. 377. _Rule of Apportionment_, proposal to change from land to numbers, I. 241. RUTLEDGE, EDWARD, in favor of Constitution, II. 510. Arguments of, in convention of South Carolina, 548. RUTLEDGE, JOHN, a member of committee to apportion representatives, II. 148. Motion of, for assumption of State debts, 319. In favor of Constitution, 510. S. _Seat of Government_, action respecting, II. 189. None under Confederation, 268. History of establishment of, 268. Grave questions concerning location of, 274. Impolicy of establishing at New York, or Philadelphia, 591. Embarrassments attending selection of, 604. _Sectional Jealousy_, causes and operation of, I. 371. SELMAN, captain in the Revolutionary naval force, I. 74. _Senate_, reasons for present constitution of, II. 41. Rule of suffrage in, 48. Numerical representation in, favored at first, 49. To hold office during "good behavior" under Hamilton's plan, 100, 105. Members of, chosen for six years, 134; qualifications of, 134, 223. Objects of, 138; how to be attained, 138. Difficulty in fixing basis of, 139. Mr. Baldwin's model of, 139. Fortunately not founded on relative wealth of States, 140. Votes of States respecting, 141; representation in, 165. Advantages of present constitution of, 166. Members of, to be two from each State, 186; to vote per capita, 186; must have been citizens nine years, 211. Slight analogy of, to House of Lords, 215. Equality of votes in, by what States resisted, 217. Choice of President by, in certain events, proposed, 221, 390. Scheme of, tending to oligarchy, 222. May amend revenue bills, 222. Powers of, as at first proposed, 223. Number of members of, origin of, 224. Method of voting in, origin of, 224. Present mode of voting in, advantages of, 228. Vacancies in, how filled, 229. Primary purpose of, 229. Disposition to accumulate power in, 230. Constitution of, great embarrassments respecting, 233. Separate action of, difficult to determine, 234. Consent of, to certain acts of President, necessary, 235. Proposed choice of President by, objections to, 236. Only body fit to have revisionary control over appointments, 239. Ratification of treaties by, 240. Ultimate choice of President taken from, 240. Length of term in, 240. Biennial change in, 241. To try impeachments, 261. Quorum of, 262. President of, 263. May choose president pro tempore, 264. Choice of President by, quorum for, 401; majority necessary to, 401. President pro tempore of, when to act as President of the United States, 403. Proposed appointment of ambassadors and judges by, 410. Foreign relations committed to, 410. Treaty-making power of, 415. May propose treaty to President, 417. Certain controversies between States, proposed to be tried by, 424. Equality of States in, guaranteed by Constitution, 478. _Shays's Rebellion_, causes of, I. 266. Progress of, 266, 269. How arrested 270. How acted upon in Congress, 271. Effect of, upon the political state of the country, 273. Abettors of, opposed to Constitution, II. 501. SHERMAN, ROGER, one of the committee to prepare Declaration of Independence, I. 50. Opposed to tax on exports, II. 294. Views of, respecting tax on slaves, 304. Motion of, respecting payment of old debts, 321. _Slavery_, British government responsible for the existence of, I. 87. Complex relations of, II. 22. Regarded by Southern statesmen as an evil, 155. When and how abolished in States now free, 289. Existed in what States at formation of Constitution, 313. Facts respecting, as influencing judgment on Constitution, 313. A matter of local concern, 313. State laws respecting abolition of, 313. In Northwestern Territory, proposals for excluding, 343. State of, in 1787, 451. Probable duration of, 451. Principle of common law and law of nations respecting, 451, 455. Exclusively a matter of State jurisdiction, 451. Existed in Colonies at very early period, 453. In Massachusetts, Dr. Belknap's article on, 454. Depends wholly on municipal law, 457. Fortunately left to State control, 459. Existence of, unjustly made a reproach on United States, 465. _Slaves_, as affecting ratio of representation, II. 19. Control of States over, never meant to be surrendered, 20. Necessarily regarded in forming Constitution, 20. As affecting basis of representation, 46. In fixing ratio of representation, included as inhabitants, 47. Three-fifths rule respecting, whence derived, 48. In fixing ratio of representation, how computed, 147; admission of, proper, 147. Propriety of counting, as inhabitants, in adjusting representation, 150. Rule respecting, under Confederation, 150. As affecting representation, votes respecting, 153. Social and political condition of, anomalous, 155. Number and distribution of, 155. An important element in determining rank of States, 155. As affecting representation and taxation, 157. As subjects of taxation, views of statesmen respecting, 159. Compromise respecting, how to be effected, 163. Extradition of, Pinckney's proposition concerning, 189. Manumission of, a matter of State control, 286. Representation of, a concession by North, why made, 292; Morris's motion respecting, 293; vote of New Jersey respecting, 293. Specific tax on importation of, 304. Word not used in Constitution by design, 305. Ratio of increase of, from 1790 to 1850, 308. Condition of, ameliorated by Constitution, 316. Advancing public sentiment concerning, 316. Colonization of, in Africa, 317. Representation of, an unimportant anomaly, 317. Emancipation of, a local question, 317. Extradition of, under Constitution, history of clause respecting, 450; a necessary provision of Constitution, 451; under New England Confederation of 1643, 453; under Ordinance of 1787, 454; importance of proper understanding of clause respecting, 456; necessity and propriety of clause, 459. Condition of, much better under State control, 462. Increase of, since adoption of Constitution, 465. See _Federal Census_. _Slave-Trade_, discountenanced by first Continental Congress, I. 24. How dealt with by the Constitution, 456. Abolished in England, 457, 461. French abolition of, 457. Danish abolition of, 459. Compromise respecting, 460. Legislation against, 460. Discussions respecting, in England, 460. Probable encouragement of, II. 153; embarrassments respecting, 281. State action respecting, 285. Necessity of definite provision respecting, 285. Duty of framers of Constitution respecting, 286. Had been abolished by no nation in 1787, 286. A proper subject for national action, 286. Aspect of, political, 287; moral, 287. Economical importance of, to Southern States, 288. Report of committee of detail respecting, 290. Grave questions concerning, 296. Right to continue, insisted on by what States, 297, 301. Prospective prohibition of, provided for, 304. Concessions respecting, timely, 305. Vote of States respecting, 305. Patriotic course of both sections respecting, 306. Effect of discontinuance of, on Southern States, 308. State rights respecting, before Constitution, 314. Tolerated by European nations at formation of Constitution, 314. Interdicted by ten States before Constitution, 314. Refusal of certain States to grant power to suppress, immediately, 315. Indefinite continuance of, had Constitution not been formed, 315. First extinguished by America, 317. _South Carolina_, a provincial government, I. 4. Constitution of, formed, 120. Tender-law of, 253. Appoints and instructs delegates to the Convention, 369. Opposed to equality of suffrage in House of Representatives, II. 138; equal vote of States in Senate, 141, 148, 165, 217. Had five representatives in first House, 149. Opposed to census of free inhabitants, 153; executive holding office during "good behavior," 173. Vote of, respecting citizenship as qualification for office, 209; money bills, 216, 218. Opposed to each State having one vote in Senate, 227. In favor of States paying members of Congress, 259. Refusal of, to submit to tax on exports, 280, 285. Exports of, in one year, 285. Position of, in Convention, respecting slave-trade, 297, 301. Vote of, respecting slave-trade, 305. Vote on Jefferson's resolve concerning Northwestern Territory, 346. Cession by, in 1787, 356. Vote of, on suspension of habeas corpus, 360. Condition of acceptance of Constitution by, 452. Motion for surrender of fugitive slaves made by, in Constitutional Convention, 453. Vote of, respecting citizenship clause in Constitution, 453. Debate in legislature of, on Constitution, 510. Convention in, to vote on Constitution, 511; importance of action of, 542. Ratification of Constitution by, 544; rejoicings at, 544; importance of, 544. Delegates of, responsibility assumed by, 544. A great exporting State, 546. Hesitation of, to concede power to regulate commerce, 546. Amendments to Constitution proposed by, 548. Eighth State to ratify Constitution, 549. _Southern States_, views of, respecting regulation of commerce, II. 290. _Sovereignty_, of the people, established by the Revolution, I. 379; necessary consequences of declaration of, II. 8. Resides in the people, 38. Powers of, may be exercised by different agents, 377. _Spain_, claims the exclusive navigation of the Mississippi, I. 312. See _Mississippi_. _Speaker_, of House of Representatives, II. 264; when to act as President, 403. _Standing Armies_, jealousy of, I. 81, 90. _States_, interests and relations of, before Constitution, II. 5. Devotion of, to republican liberty, 6. Union of, essential to republican liberty, 9. Weakness of, without union, 9. General purposes of, in calling Constitutional Convention, 16. Position of, in Convention, 27. Powers surrendered by, to Confederation, 27. Why represented in Congress, 40. Diverse interests of, as affecting representation, 43. Tendency of, to encroach on federal authority, 51. Proposed control over legislation of, by Congress, 52. Population of, in 1790, table of, 55. Legislation of, control of judicial department over, 66. Admission of, 75, 79, 109, 176, 340, 344, 350, 354. Cessions by, to Union, 76. Republican government guaranteed to, 79, 83, 177, 458. Jealous of general government, 91. Sovereignty of, how reconciled with national sovereignty, 91. Plan to abolish, 92. To make partial surrender of power under Virginia plan, 95. Sovereignty of, preserved under New Jersey plan, 95. Conflicts of, with nation, probable, under Virginia plan, 102, 103. Struggle between large and smaller, respecting representation, 104. Proposed equalization of, 108. Populations of, at formation of Constitution, 116. Relative rank of, at formation of Constitution, 117. Conflict among, as to national and federal systems, 117. Danger of annihilation of sovereignty of, by national government, 128, 377. Danger of alliances of, with foreign powers, 136. Preservation of, in Congress, conceded to be necessary, 139. Divided respecting constitution of Senate, 145. Jealousy among, 150. Western, views of members respecting, 150. Slave and free, index of wealth of, 157. Wealth of, not measured by land, 160. Position of, in Convention, respecting slaves, 161, 162. Wealth of, for purpose of taxation, determined by inhabitants, 163. Smaller, concession to, in constitution of Senate, 166. Free and slave, populations of, compared, 168. Relation of, to Confederation, 179. Whether Constitution could be ratified by government of, 180. Voting by, history of practice of, 227. Equal representation of, in Senate, just, 233. Union desired by, from different motives, 303. Commercial legislation of, under Confederation, various, 310. Revenue and paper-money systems of, under Confederation, various, 310. Rights guaranteed to, by Constitution, 314. Power of, over slave-trade, anterior to Constitution, 314. Ports of one, not to be preferred to those of another, 324. Compacts between, outside of Articles of Confederation, 347. New, temporary governments for, Madison's motion respecting, 351. Admission of, number of votes requisite for, 352; by dismemberment of State, 352; by junction, 354; difference in cases of, 357; provisions for, general, 358. Restraints on political power of, 362. Issuing of bills of credit prohibited to, 364. Laying of duties and imposts by, 368. Cannot lay duty on tonnage, 370. Keeping of troops or ships of war by, 371. Agreements by, with another State or foreign power, 371. When may engage in war, 371. Governments of, how far supreme, 377. May be multiplied indefinitely under Constitution, 383. Levying war against, not treason against United States, 385. Certain controversies between, proposed to be tried by Senate, 424. Constitutional restrictions on, 432. Laws of, constitutionality of, how determined, 439. Courts of, not likely to administer justice to foreigners, &c., 442. Different, controversies between citizens of, 442; grants of lands by, jurisdiction of cases respecting, 444. A party to a suit, jurisdiction in cases of, 444. Foreign, jurisdiction in cases of, 444. Full faith given to acts, &c. of, 449. Have exclusive regulation of domestic institutions, 451. May exclude foreigners, 457. Republican government guaranteed to, object of, 468. Domestic violence in, application to general government in case of, 469. Competency of, to abolish constitutions, 469. Must have executive and legislature, 470. Protection of, against domestic violence, 472. Equality of, in Senate, for ever guaranteed by Constitution, 478. Refusal of, to comply with requisitions of Congress, 572. See _New States_. _State Constitutions_, formation of, I. 116. _State Governments_, how formed, I. 36. _State Sovereignty_, early assertion of, I. 90. _Stop Laws._ See _Debts_. STORY, JOSEPH, views of, respecting President's power to adjourn Congress, II. 420. _Suffrage, Rule of_, Governor Randolph's resolution respecting, II. 35. Change in, opposed by Delaware, 36. In Continental Congress, 42. In Confederation, 42. In Senate, 48. For House of Representatives, great debate on, 135. According to Virginia plan, 145. Different in different States, 174, 198. Not universal in any State, 471. SULLIVAN, General, president of New Hampshire Convention, II. 541. SULLIVAN, JAMES, Governor of Massachusetts, II. 541. _Superintendent of the Finances_, appointed, I. 174. See ROBERT MORRIS. _Supremacy_ of United States, meaning and scope of, II. 376. Of States, extent of, 377. Of Constitution, as affecting national growth, 383. _Supreme Court_, tenure of office of, II. 67. Judges of, not removable by address, 68, 73; compensation of, 68; by whom appointed, 68. To determine constitutional questions, 74. Functions of, compared with those of State courts, 74. Judges of, proposed appointment of, by Senate, 223, 230, 410. Appointment of, proposals concerning, 234. Sole interpreters of Constitution, 380. Judges of, to be nominated by President, 418; tenure of office and salaries of, 423. One, under Constitution, 423. Original and appellate jurisdiction of, 424. Appellate jurisdiction of, ambiguity concerning, 428. Doubts about conferring power upon, to declare law unconstitutional, 434. T. TALLEYRAND, Prince, opinion of, respecting Hamilton, I. 410. _Taxation_, right of, denied to Parliament, I. 20. How distinguished from regulation of trade, 20. Inseparable from representation, 20, II. 157. Difficulty of applying combined rule of wealth and numbers to, 158. Report of committee of detail respecting, 290. By general government, Mason's objections to, 557. See _Colonies_. _Taxes_, odious to the people of United States, I. 180. Power of Congress to collect, II. 322. _Tender_, State laws respecting, restraint on, II. 365. _Tender Law_ of Massachusetts, I. 268. See _Debts_. _Territory_, power of Congress over, under the Confederation, I. 141. Authority of Congress over, under Constitution, II. 340; purpose of provision respecting, 355; diverse views concerning, 358. See _Western Territory_ and _Northwestern Territory_. _Territorial Governments_, power to frame, in Ordinance of 1787, II. 345. _Theory_, danger of adhering too firmly to, II. 129. THOMPSON, CHARLES, Secretary of first Continental Congress, I. 14. TICKNOR, GEORGE, cited for a saying of Jefferson concerning the Revolutionary Congress, I. 64; for a saying of Talleyrand about Hamilton, 410. _Tonnage_, duty on, States prohibited to lay, II. 370; proposed exception respecting, 370. _Tories_, how dealt with by Continental Congress, I. 36; in New Hampshire, 65. Washington's opinion respecting, 65. Movements of, in the neighborhood of New York, 66; how met by Washington, 66. Steps taken by Congress to disarm, 68. Misunderstanding respecting, between Washington and Congress, 69. Subject referred to local authorities, 72. Relations of persons and property of, to the Union, 251. _Trade_, inter-colonial, before the Revolution, I. 9. Regulation of, by Parliament, distinguished from taxation, 20. With Colonies prohibited by Parliament, December, 1775, 38. See _Colonies_, _Commerce_, _Continental Congress_, and _Parliament_. _Treason_, definition of, in Constitution, origin and purpose of, II. 384. Nature of evidence of, 386. Punishment of, to be declared by Congress, 386; how limited by Constitution, 386. President's power to pardon, different views respecting, 414. _Treasury Department_, first established, I. 35. _Treaty_ of amity and commerce with France, Sweden, and the Netherlands, I. 279. Negotiation for, with the Netherlands, 280; with Sweden, 281. _Treaty of Alliance_ with France, I. 156. _Treaty of Peace_ signed and ratified, I. 155, 187, 235, 237. Objects secured by, 249. How violated by certain States, 254, 257. Southern boundary of the United States fixed by, 312. Accompanied by a secret article, 312, 313. Question respecting, II. 415. _Treaty Power_ under the Confederation, I. 325. _Treaties_, supreme law of land, II. 170, 372, 374. Proposition that Senate should make, 223. Negotiation of, by numerous body, embarrassing, 232. Making of, proposals concerning, 234. Provision respecting, origin of, 240; how modified, 414. Rule of Confederation respecting, 416. May be proposed by Senate, 417. Jurisdiction over cases arising under, 430. Cases arising under, how settled, 440. Power to make, under Confederation, 440. _Trial by Jury_, of the vicinage, one of the rights of the Colonies, I. 23. Under Constitution, II. 424. Provision for, in civil cases, not in Constitution originally, 427; supplied by amendment, 427. Guaranty of, required by many States, 429. For crimes, provisions respecting, 431. Omission to secure, a strong argument with some against Constitution, 498. TUCKER, GEORGE, cited about Madison, I. 421. TYLER, JOHN, opposed to Constitution, II. 506. U. _Union_, origin of, I. 3. Unknown to the colonial condition, 7. Power to form, a result of the Revolution, 8. Proposal of, in 1754, 8. Proposed in 1773, 10. Virginia recommends, 11, II. 12. As established by the Confederation, I. 142. Saved by the proposal of the revenue scheme, 188. Necessary to preserve the good faith of the country, 189. Of the people, idea of, 373. Change in character of, II. 4. Necessarily republican, 10. Preservation of, essential to independence of States, 10. Purposes of, at first indefinite, 12. Previous history of, important, 13. "Exigencies of," 13; how only to be provided for, 19. Objects of, embraced in two classes, 13; how ascertained, 13; different views respecting, 39. Proposed power in, to protect and uphold governments of States, 79. Dissolution of, Madison's views respecting, 136; Hamilton's views respecting, 136; at one time probable, 140. General interests of, power to legislate for, 170. Success of, to what attributable, 380. Sovereignty of, and of States, no conflict between, 380. Capacity of, for territorial expansion, cause of, 381. Theory of, respecting domestic institutions of States, 451. "_United Colonies_," term of, first adopted, I. 33. _United States of America_, title of, adopted, I. 52, 142. _United States_, character of, at stake, I. 179. Laws and treaties of, supreme law of States, II. 170, 372. Guaranty by, of State institutions, 177. Became proprietor of crown lands, 352. Title of, to vacant lands, 357. Officer of, not to accept present, &c. from foreign king, &c., 362. Resolutions respecting supremacy of government of, 372, 373. Supremacy of, meaning and scope of, 376. Government of, unlike any other, 379; determines its own powers, 379; safeguard of, 379; success of, to what attributable, 379. Constitution, no impediment to growth of, 383. Treason against, definition of, 385. Importance of preserving federal character of government of, 392. Relation of government to citizens of, 432. A party to a suit, jurisdiction of cases of, 444. V. _Valuation._ See _Land_ and _Contribution_. _Vermont_, provision for admission of, II. 353. Within asserted limits of New York, 353. _Vessels_, entry and clearance of, II. 324. Payment of duties by, 324. _Veto_, an essential power, II. 57. Bill may be passed notwithstanding, 264. Of President qualified, 265. Of king of England absolute, 265; how signified, 265; in disuse since William the Third, 266. History of, in Constitutional Convention, 267. Meaning of "two thirds" in provisions respecting, 267. Power of, proposed to be given to Council of Revision, 438. _Vice-President, ex officio_ President of Senate, II. 264. Has only casting vote in Senate, 264, 396. Choice of, embarrassments respecting, 390. Reasons for having, 395. Ultimate election of, by Senate, 396, 401. When to act as President, 400. Changes in appointment of, 400. Qualifications for, 401. _Virginia_, a provincial government, I. 4. Advises a Continental Congress, 11. Elects delegates, 12. Constitution of, formed, 120. Effect of claim of, to Western Lands, 132. Cedes the Northwestern Territory, 137, 295. Repeals her act granting imposts, 175. Stop-law of, 253. Action of, concerning Western posts, 258. Opposes the surrender of the Mississippi, 315. Action of, leading to a general commercial convention, 340, 343. Appoints and instructs delegates to the Convention, 367. Measures of, respecting commerce, 423. First to declare for Union, II. 12. Plan of government proposed by, 89; Hamilton's doubts respecting, 99; inconsistency in, 101, 103; reported to Convention, 109; vote on, 109; chasm in, 133. Opposed to election of Senators by State legislatures, 135; to equality of suffrage in House of Representatives, 138; to equality of States in Senate, 141, 148, 165, 217. Had ten Representatives in first House, 149. In favor of census of free inhabitants, 153; of executive holding office during "good behavior," 173. Vote of, respecting citizenship as qualification for office, 209; money bills, 216, 218. Opposed to each State having one vote in Senate, 227; to impeachments being tried by Senate, 262; to taxing exports, 296. Vote of, respecting slave-trade, 305. Cession by, in 1784, 342. Strong opposition to Constitution in, 504. Statesmen of, 504. Character of people of, 504. Great influence of Washington in, 505. Effect of action of New Hampshire on, 510. Convention of, meets at Richmond, 510, 549; parties in, nearly balanced, 529, 568; anxiety respecting action of, 542, 549; eminence of members of, 551; responsibility resting on, 551; discussion on Constitution in, 554. Had ratified Constitution before news from New Hampshire, 578. Convention of, final propositions of friends of Constitution in, 579. Ratification of Constitution by, how finally effected, 579. Form of amendments and Bill of Rights proposed by, 581. Address prepared by opponents of Constitution in, 582. Adoption of Constitution by, rejoicings at, 582. _Virginia and Maryland_, efforts of, to regulate the trade of the Potomac and the Chesapeake, I. 341. _Virginia Reservation_, note on, I. 296. _Voters_, qualifications of, in different States, II. 198. W. _War_, power to declare, proposed to be given to two branches of Congress, II. 231. To be declared by Congress, 332, 413. When States may engage in, 371. Ships of, not to be kept by States in time of peace, 371. And peace, power of President to make, 411. To be prosecuted by President, 413. WASHINGTON, appointed and commissioned commander-in-chief, I. 33. Arrives at Cambridge, 33. Mode of his appointment as commander-in-chief, 41. Previous history and character of, 41. Embarrassments of, in the early part of the war, 55. Opinions and actions of, respecting Tories, 65. Urges Congress to establish prize court, 75. On the necessity for a standing army, 91. Leaves Boston for New York, 91. Compelled to abandon New York, 91. Retreats through New Jersey, 96. Complains of his situation, 96. Asks for extraordinary powers, 100. Dictatorial powers conferred on, 100; apology for, 101. Requires oath of allegiance to United States, 106. Proclamation by, at Morristown, in 1777, 106. Powers conferred on, in 1776, jealousy respecting, 106. Opinion of, respecting an oath of allegiance, 108. Third effort of, to raise a new army, 109. Embarrassments of, 110. Thwarted by the local authorities, 112. Adheres to a plan for the campaign, 112. Anxious about the falling off of Congress, 127. Letters of, to the States, in 1782, 157; to the President of Congress, 158, 162. Situation of, 158. Warns Congress respecting the officers, 167. Painful position of, 167. Proceedings of, upon the Newburgh Addresses, 168. On the want of a revenue power, 182. Relations of, to the country during the war, 200. Opinions of, at the close of the war, 200. Address of, to the States, on resigning, 201. On a peace establishment, 218, 219. Resigns as commander-in-chief, 235. Address to, 235. On the insurrection in Massachusetts, 274. Plans communications with Western settlements, 310. Opinions of, respecting the navigation of the Mississippi, 311, 315. Opinions of, in 1785, on the state of the country, 333. Connection of, with the plan of a general Convention, 341. Pressed to attend the general Convention, 365, 397. On the idea of a monarchical government for the United States, 370. At Mount Vernon, 393. Views of, on public affairs, 394. Declines to attend the general Convention, 399; reconsiders and attends, 399. Reception of, at Philadelphia, 401. Placed in the chair of the Convention, 401. Opinions of, 401. Character of, as a statesman, 404. Meets the Alexandria commissioners at Mount Vernon, 425. Failure of civil power to sustain, II. 14. Difficulty experienced by, as President, in preserving neutrality and excluding foreign influence, 82. In Convention, confined himself to duties of presiding officer, 213. Suggestion of, respecting ratio of representation in Congress, adopted, 213. In favor of tax on exports, 284. Early nominated for President, 391. Received no pay as commander-in-chief, 405. Practice of, respecting cabinet, 409. Leading man in Constitutional Convention, 476. Tradition respecting words of, before signing Constitution, 487. Views of, respecting consequences of rejection of Constitution, 487. Unbounded confidence of people in, 498. Great influence of, in Virginia, 505. Copies of Constitution sent by, with expression of opinion, 509. Opinion of, respecting action of Maryland on Constitution, 542. Not a member of Virginia convention, 551. Justifies course of Federalists in New York convention, 590. Administration of, topics appropriate to history of, 604. _Washington, City of_, an object of affection and pride, II. 277. See _Seat of Government_. WEBSTER, DANIEL, compared with Hamilton, I. 419. WEBSTER, NOAH, recommends a new government, I. 350. WEBSTER, PELATIAH, recommends a general Convention, I. 350. _Weights and Measures_, standard of, fixed by Congress, II. 328. _West Florida_, secret article respecting, in the Treaty of Peace, I. 312. _West Point_, academy at, suggested, I. 218. _Western Lands_, claims of the States to, I. 131. Conflicting interests of the States concerning, 132. Surrender of claim to, by New York, 133. Cessions of, urged by Congress in 1780, 134. Motives of the cession of, 137. Surrender of claim to, by Virginia, 137. Become the bond of the Union, 140. Power of Congress over, under the Confederation, 141. _Western Posts._ See _Military Posts_. _Western Settlements_, position of, after the peace, I. 309. Connection of, with the Atlantic coast, 310. Alarm of, about the Mississippi, 318. _Western States_, prospective character of, II. 300. Vast resources of, 310. _Western Territory_, controversy respecting, before the adoption of Articles of Confederation, I. 291. Cessions of, invited, 292; Congress declares certain trusts respecting, 293. States to be formed in, 293. Power of Congress to deal with, 293. Cession of, by New York, 293; by Virginia, 295. Further legislation respecting, and further trusts declared, 296. Admission of States from, 298. Further cessions of, urged, 299. Proposition by Rufus King to exclude slavery from, 299. Cession of, by Massachusetts, 299; by Connecticut, 300. Ordinance for disposing of lands in, 300. Cessions of, by Virginia, modified, 300; by South Carolina, 301; by North Carolina, 301; by Georgia, 301. See _Northwestern Territory_. _West Indies_, trade with, II. 309. _Whale Fishery_ in Massachusetts before the Revolution, I. 135. _Williamsburg_, convention at, I. 12. WILLIAMSON, HUGH, views of, respecting rule of suffrage for House of Representatives, II. 135; money bills, 218. WILSON, JAMES, birth and career of, I. 462. Sent to the Constitutional Convention, 462. Services of, 462. Made a justice of the Supreme Court of the United States, 465. Death of, 465. His defence of the Constitution, 465. In favor of larger House of Representatives, II. 213; tax on exports, 284. One of the ablest framers of the Constitution, 520. Position and arguments of, in Pennsylvania convention, 521. Views of, respecting Bill of Rights, 522. WOLCOTT, OLIVER, influence of, in Connecticut convention, II. 529. Y. _Yeas and Nays_, one fifth of members present in either House of Congress may require, II. 263. To be taken on passing bill over veto, 265. _Yorktown_, Revolutionary Congress assembles at, I. 113. THE END. * * * * * Transcriber's Notes: Obvious spelling and punctuation errors have been repaired, but period spellings and valid alternative spellings present in the original were retained; for example: maleadministration, malepractice and malpractice, Brearly and Brearley, etc. Hyphenation variations in the original were retained. Change in format for Article headings beginning P. 629 retained as in the original. Changes not covered above are: Contents erroneously states Index begins on P. 623. Corrected to P. 633. P. 298 "Southern members." original reads "Southern membe" P. 605 Duplicate heading "Appendix" removed. P. 622 "Revision and Control"; original reads "Controul." P. 623 "Members from two-thirds"; original reads "twothirds." 
18637	----	Transcriber's notes: [=o] represents the vowel "o" with a macron in this text. The original editor's comments are enclosed in square brackets []. Notes unique to this edition are also enclosed in square brackets, but are preceded by the words "Transcriber's Note". A complete list of all changes made to the text is included at the end of the file. Variations in spelling were left as in the original. 82d Congress } SENATE { Document _2d Session_ } { No. 170 THE CONSTITUTION OF THE UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952 Prepared by the Legislative Reference Service, Library of Congress EDWARD S. CORWIN, Editor [Illustration] United States Government Printing Office Washington: 1953 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington 25 D.C.--Price $6.25 SENATE JOINT RESOLUTION 69 JOINT RESOLUTION To prepare a revised edition of the Annotated Constitution of the United States of America as published in 1938 as Senate Document 232 of the Seventy-fourth Congress. Whereas the Annotated Constitution of the United States of America published in 1938 as Senate Document 232, Seventy-fourth Congress, has served a very useful purpose by supplying essential information in one volume and at a very reasonable price; and Whereas Senate Document 232 is no longer available at the Government Printing Office; and Whereas the reprinting of this document without annotations for the last ten years is now considered appropriate: Now, therefore, be it _Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That the Librarian of Congress is hereby authorized and directed to have the Annotated Constitution of the United States of America, published in 1938, revised and extended to include annotations of decisions of the Supreme Court prior to January 1, 1948, construing the several provisions of the Constitution correlated under each separate provision, and to have the said revised document printed at the Government Printing Office. Three thousand copies shall be printed, of which two thousand two hundred copies shall be for the use of the House of Representatives and eight hundred copies for the use of the Senate. Sec. 2. There is hereby authorized to be appropriated for carrying out the provisions of this Act, with respect to the preparation but not including printing, the sum of $35,000 to remain available until expended. Approved June 17, 1947. PREFACE By Honorable Alexander Wiley _Chairman, Senate Foreign Relations Committee_ To the Members and Committees of the Congress, the Constitution is more than a revered abstraction; it is an everyday companion and counsellor. Into it, the Founding Fathers breathed the spirit of life; through every subsequent generation, that spirit has remained vital. In more than a century and a half of cataclysmic events, the Constitution has successfully withstood test after test. No crisis--foreign or domestic--has impaired its vitality. The system of checks and balances which it sets up has enabled the growing nation to adapt itself to every need and at the same time to checkrein every bid for arbitrary power. And meantime America itself has evolved dynamically and dramatically. The humble 13 colonies, carved out of the wilderness in the 18th Century, emerged in the 20th Century as leader of earth--industrial--military--political--economic--psychological. Yet the broad outline of the Supreme Law remains today fundamentally intact. It is small wonder that W.E. Gladstone described the Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man." He knew, as should we, that the Constitution's words, its phrases, clauses, sentences, paragraphs, and sections still possess a miraculous quality--a mingled flexibility and strength which permits its adaptation to the needs of the hour without sacrifice of its essential character as the basic framework of freedom. Congress has long recognized how necessary it is to have a handy working guide to this superb charter. It has sought a map, so to speak, of the great historical landmarks of Constitutional jurisprudence--landmarks which mark the oft-times epic battles of clashing legal interpretations. A first step was taken toward meeting this need by publication of Senate Document 12, 63d Congress in 1913. Ten years later, in 1923 another volume was issued, Senate Document 96, 67th Congress, and it was followed in turn by Senate Document 154 of the 68th Congress. In 1936, Congress authorized a further revision, this time by the Legislative Reference Service. Mr. Wilfred C. Gilbert, now the Assistant Director of the Service, was the editor of this volume which became Senate Document 232, 74th Congress, and he has given counsel throughout the development of the present edition of this volume. After another decade of significant and far-reaching judicial interpretation, the Senate Judiciary Committee reported out Senate Joint Resolution 69 of the 80th Congress calling upon the Librarian of Congress for the preparation of the new work. However, because of the increase in responsibilities of the Legislative Reference Service, it was no longer feasible for it to undertake this additional burden with its regular staff. The Director of the Service, Dr. Ernest S. Griffith, suggested therefore that Dr. Edward S. Corwin be engaged to head the project with a collaborating staff to be furnished by the Legislative Reference Service. In my capacity at the time, as Chairman of the Senate Judiciary Committee, I was delighted to give my approval to this arrangement, for I recognized our particular good fortune in obtaining the services of an acknowledged authority for this highly significant and delicate enterprise. I should like now to express our thanks and appreciation to Dr. Corwin and to his collaborators from the Service, Dr. Norman J. Small, Assistant Editor, Miss Mary Louise Ramsey, and Dr. Robert J. Harris, for all their prodigious and skilled labors. Moreover, for their considerable efforts in connection with the detailed legislative and printing arrangements for the publication of this volume, I should like to express appreciation to Mr. Darrell St. Claire, Staff Member for the Senate Rules Committee, as well as Chief Clerk for the Joint Committee on the Library of Congress; and Mr. Julius N. Cahn, previously Executive Assistant to me when I was Chairman of the Judiciary Committee and now Counsel to the Senate Foreign Relations Committee. Initiated in the Republican 80th Congress, the project was undertaken With funds supplied by the succeeding Democratic 81st Congress, while the Democratic 82d Congress extended its coverage to include Supreme Court decisions through June 30, 1952. The document thus represents Congressional nonpartisan activity at its best, as should ever be the case in our fidelity to this great charter. In the present volume, in addition to the annotations indicating the current state of interpretation, Dr. Corwin has undertaken to supply an historical background to the several lines of reasoning. It is our hope and expectation that this introduction will prove of immense benefit to users in understanding the trends of judicial constitutional interpretation. It is our further hope that this edition as a whole may serve a still larger purpose--strengthening our understanding of and loyalty to the principles of this republic. In that way, the Constitution will remain the blueprint for freedom. It will continue as an inspiration for us of this blessed land, and for men and women everywhere; for they look to these shores as the lighthouse of freedom, in a world where the darkness of despotism hangs so heavily. _May 30, 1953._ [Illustration: Alexander Wiley signature] PREFACE For many years the Congress has felt the need for a handy, concise guide to the interpretation of the Constitution. An edition of the Constitution issued in 1913 as Senate Document 12, 63d Congress, took a step in this direction by supplying under each clause, a citation of Supreme Court decisions thereunder. This was obviously of limited usefulness, leaving the reader, as it did, to an examination of cases for any specific information. In 1921 the matter received further consideration. Senate Resolution 151 authorized preparation of a volume to contain the Constitution and its amendments, to January 1, 1923 "with citations to the cases of the Supreme Court of the United States construing its several provisions." This was issued as Senate Document 96 of the 67th Congress, and was followed the next year by a similar volume annotating the cases through the October 1923 Term of the Supreme Court. (Senate Document 154, 68th Congress.) Both of these volumes went somewhat beyond the mere enumeration of cases, carrying under the particular provisions of the Constitution a brief statement of the point involved in the principal cases cited. Thirteen years of Constitutional developments led Congress in 1936 to authorize a revision of the 1924 volume, and under authority of Senate Concurrent Resolution 35 introduced by Senator Ashurst, Chairman of the Judiciary Committee, such a revision was prepared in the Legislative Reference Service and issued as Senate Document 232, 74th Congress. This volume was, like its predecessors, dedicated to the need felt by Members for a convenient ready-reference manual. However, so extensive and important had been the judicial interpretation of the Constitution in the interim that a very much larger volume was the result. After another decade, in the course of which many of the earlier interpretations were reviewed and modified, the Senate again moved for a revision of the Annotations. Senate Joint Resolution 69 introduced by the then Chairman of the Judiciary Committee, Senator Alexander Wiley, again called upon the Library of Congress to undertake the work. The confidence thus implied was most thoroughly appreciated. To meet his responsibilities, the Librarian called upon Dr. Edward S. Corwin to head the project. The collaborating staff, supplied by the Legislative Reference Service, included Dr. Norman J. Small as assistant editor, Miss Mary Louise Ramsey, and Robert J. Harris. This time, more than ever, the compilers faced a difficult task in balancing the prime requirement of a thorough and adequate annotation against the very practical desire to keep the results within convenient compass. Work on the project was delayed until funds were made available. In consequence the annotations have been extended to a somewhat later date, covering decisions of the Supreme Court through June 30, 1952. Ernest S. Griffith, _Director, Legislative Reference Service._ EDITOR'S FOREWORD The purpose of this volume is twofold; first, to set forth so far as feasible the currently operative meaning of all provisions of the Constitution of the United States; second, to trace in the case of the most important provisions the course of decision and practice whereby their meaning was arrived at by the Constitution's official interpreters. Naturally, the most important source of material relied upon comprises relevant decisions of the Supreme Court; but acts of Congress and Executive orders and regulations have also been frequently put under requisition. Likewise, proceedings of the Convention which framed the Constitution have been drawn upon at times, as have the views of dissenting Justices and occasionally of writers, when it was thought that they would aid understanding. That the Constitution has possessed capacity for growth in notable measure is evidenced by the simple fact of its survival and daily functioning in an environment so vastly different from that in which it was ordained and established by the American people. Nor has this capacity resided to any great extent in the provision which the Constitution makes for its own amendment. Far more has it resided in the power of judicial review exercised by the Supreme Court, the product of which, and hence the record of the Court's achievement in adapting the Constitution to changing conditions, is our national Constitutional Law. Thus is explained the attention that has been given in some of these pages to the development of certain of the broader doctrines which have influenced the Court in its determination of constitutional issues, especially its conception of the nature of the Federal System and of the proper role of governmental power in relation to private rights. On both these great subjects the Court's thinking has altered at times--on a few occasions to such an extent as to transcend Tennyson's idea of the law "broadening from precedent to precedent" and to amount to something strongly resembling a juridical revolution, bloodless but not wordless. The first volume of Reports which issued from the Court following Marshall's death--11 Peters (1837)--signalizes such a revolution, that is to say, a recasting of fundamental concepts; so does 100 years later, Volume 301 of the United States Reports, in which the National Labor Relations Act [The "Wagner Act"] and the Social Security Act of 1935 were sustained. Another considerable revolution was marked by the Court's acceptance in 1925 of the theory that the word "liberty" in the Fourteenth Amendment rendered the restrictions of the First Amendment upon Congress available also against the States. In the preparation of this volume constant use has been made of "The Constitution of the United States of America Annotated," which was brought out under the editorship of Mr. W.C. Gilbert in 1938. Its copious listing of cases has been especially valuable. Its admirable Tables of Contents and Index have furnished a model for those of the present volume. If this model has been approximated the contents of this volume ought to be readily accessible despite its size. The coverage of the volume ends with the cases decided June, 1952. A personal word or two must be added. The Editor was invited to undertake this project by Dr. Ernest S. Griffith, Director of the Legislative Reference Service of the Library of Congress, and his constant interest in the progress of our labors has been a tremendous source of encouragement. To his able collaborators the Editor will not attempt to express his appreciation--they share with him the credit for such merits as the work possesses and responsibility for its short comings. And I am sure that they join me in thanking Miss Evelyn K. Mayhugh for her skill and devotion in aiding us at every step in our common task. Edward S. Corwin. INTRODUCTION It is my purpose in this Introduction to the _Constitution of the United States, Annotated_ to sketch rapidly certain outstanding phases of the Supreme Court's interpretation of the Constitution for the illustration they may afford of the interests, ideas, and contingencies which have from time to time influenced the Court in this still supremely important area of its powers and of the comparable factors which give direction to its work in the same field at the present time. As employed in this country, Constitutional Law signifies a body of rules resulting from the interpretation by a high court of a written constitutional instrument in the course of disposing of cases in which the validity, in relation to the constitutional instrument, of some act of governmental power, State or national, has been challenged. This function, conveniently labelled "Judicial Review," involves the power and duty on the part of the Court of pronouncing void any such act which does not square with its own reading of the constitutional instrument. Theoretically, therefore, it is a purely juristic product, and as such does not alter the meaning. To those who hold this theory, the Court does not elaborate the instrument, as legislative power might; it elucidates it, bringing forth into the light of day, as it were, what was in the instrument from the first. In the case of judicial review as exercised by the Supreme Court of the United States in relation to the national Constitution, its preservative character has been at times a theme of enthusiastic encomium, as in the following passage from a speech by the late Chief Justice White, made shortly before he ascended the Bench: ... The glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the Constitution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity.[1] At other times the subject has been dealt with less enthusiastically, even skeptically. One obstacle that the theory encountered very early was the refusal of certain Presidents to regard the Constitution as primarily a source of rules for judicial decision. It was rather, they urged, a broadly discretionary mandate to themselves and to Congress. And pursuing the logic of this position, they contended that while the Court was undoubtedly entitled to read the Constitution independently for the purpose of deciding cases, this very purpose automatically limited the authoritativeness of its readings; and that within their respective jurisdictions President and Congress enjoyed the same correlative independence as the Court did within its jurisdiction. This was, in effect, the position earlier of Jefferson and Jackson, later of Lincoln, and in recent times that of the two Roosevelts. Another obstacle has been of the Court's own making. Whether because of the difficulty of amending the Constitution or for cautionary reasons, the Court took the position, as early as 1851, that it would reverse previous decisions on constitutional issues when convinced they were erroneous.[2] An outstanding instance of this nature was the decision in the Legal Tender cases, in 1871, reversing the decision which had been rendered in Hepburn _v._ Griswold fifteen months earlier;[3] and no less shattering to the prestige of _stare decisis_ in the constitutional field was the Income Tax decision of 1895,[4] in which the Court accepted Mr. Joseph Choate's invitation to "correct a century of error". The "constitutional revolution" of 1937 produced numerous reversals of earlier precedents on the ground of "error", some of them, the late Mr. James M. Beck complained, without "the obsequious respect of a funeral oration".[5] In 1944 Justice Reed cited fourteen cases decided between March 27, 1937 and June 14, 1943 in which one or more prior constitutional decisions were overturned.[6] On the same occasion Justice Roberts expressed the opinion that adjudications of the Court were rapidly gravitating "into the same class as a restricted railroad ticket, good for this day and train only".[7] Years ago the eminent historian of the Supreme Court, Mr. Charles Warren, had written: However the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the Court.[8] In short, it is "not necessarily so" that the Constitution is preserved in the Court's reading of it. A third difficulty in the way of the theory that Judicial Review is preservative of the Constitution is confronted when we turn to consider the statistical aspects of the matter. The suggestion that the Constitution of the United States contained in embryo from the beginning the entirety of our national Constitutional Law confronts the will to believe with an altogether impossible test. Compared with the Constitutional Document, with its 7,000 words more or less, the bulk of material requiring to be noticed in the preparation of an annotation of this kind is simply immense. First and last, the Court has probably decided well over 4,000 cases involving questions of constitutional interpretation. In many instances, to be sure, the constitutional issue was disposed of quite briefly. In some instances, on the other hand, the published report of the case runs to more than 200 pages.[9] In the total, it is probable that at least 50,000 pages of the United States Supreme Court Reports are devoted to Constitutional Law topics. Nor is this the whole story, or indeed the most important part of it. Even more striking is the fact that the vast proportion of cases forming the corpus of national Constitutional Law has stemmed, or has purported to stem, from four or five brief phrases of the Constitutional Document, the power "to regulate ... commerce among the States," impairment of "the obligation of contracts" (now practically dried up as a formal source of constitutional law), deprivation of "liberty or property without due process of law" (which phrase occurs both as a limitation on the National Government and, since 1868, on the States), and out of four or five doctrines which the Constitution is assumed to embody. The latter are, in truth, the essence of the matter, for it is through these doctrines, and under the cover which they afford, that outside interests, ideas, preconceptions, have found their way into Constitutional Law, have indeed become for better, for worse, its leavening element. That is to say, the effectiveness of Constitutional Law as a system of restraints on governmental action in the United States, which is its primary _raison d'etre_, depends for the most part on the effectiveness of these doctrines as they are applied by the Court to that purpose. The doctrines to which I refer are (1) the doctrine or concept of Federalism; (2) the doctrine of the Separation of Powers; (3) the concept of a Government of Laws and not of Men, as opposed especially to indefinite conceptions of presidential power; (4) and the substantive doctrine of Due Process of Law and attendant conceptions of Liberty. What I proposed to do is to take up each of these doctrines or concepts in turn, tell something of their earlier history, and then project against this background a summary account of what has happened to them in recent years in consequence of the impact of war, of economic crisis, and of the political and ideological reaction to the latter during the Administrations of Franklin D. Roosevelt. I Federalism Federalism in the United States embraces the following elements: (1) as in all federations, the union of several autonomous political entities, or "States," for common purposes; (2) the division of legislative powers between a "National Government," on the one hand, and constituent "States," on the other, which division is governed by the rule that the former is "a government of enumerated powers" while the latter are governments of "residual powers"; (3) the direct operation, for the most part, of each of these centers of government, within its assigned sphere, upon all persons and property within its territorial limits; (4) the provision of each center with the complete apparatus of law enforcement, both executive and judicial; (5) the supremacy of the "National Government" within its assigned sphere over any conflicting assertion of "state" power; (6) dual citizenship. The third and fourth of the above-listed salient features of the American Federal System are the ones which at the outset marked it off most sharply from all preceding systems, in which the member states generally agreed to obey the mandates of a common government for certain stipulated purposes, but retained to themselves the right of ordaining and enforcing the laws of the union. This, indeed, was the system provided in the Articles of Confederation. The Convention of 1787 was well aware, of course, that if the inanities and futilities of the Confederation were to be avoided in the new system, the latter must incorporate "a coercive principle"; and as Ellsworth of Connecticut expressed it, the only question was whether it should be "a coercion of law, or a coercion of arms," that "coercion which acts only upon delinquent individuals" or that which is applicable to "sovereign bodies, states, in their political capacity."[10] In Judicial Review the former principle was established, albeit without entirely discarding the latter, as the War between the States was to demonstrate. The sheer fact of Federalism enters the purview of Constitutional Law, that is, becomes a judicial concept, in consequence of the conflicts which have at times arisen between the idea of State Autonomy ("State Sovereignty") and the principle of National Supremacy. Exaltation of the latter principle, as it is recognized in the Supremacy Clause (Article VI, paragraph 2) of the Constitution, was the very keystone of Chief Justice Marshall's constitutional jurisprudence. It was Marshall's position that the supremacy clause was intended to be applied literally, so that if an unforced reading of the terms in which legislative power was granted to Congress confirmed its right to enact a particular statute, the circumstance that the statute projected national power into a hitherto accustomed field of state power with unavoidable curtailment of the latter was a matter of indifference. State power, as Madison in his early nationalistic days phrased it, was "no criterion of national power," and hence no independent limitation thereof. Quite different was the outlook of the Court over which Marshall's successor, Taney, presided. That Court took as its point of departure the Tenth Amendment, which reads, "The powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In construing this provision the Court under Taney sometimes talked as if it regarded all the reserved powers of the States as limiting national power; at other times it talked as if it regarded certain subjects as reserved exclusively to the States, slavery being, of course, the outstanding instance.[11] But whether following the one line of reasoning or the other, the Taney Court subtly transformed its function, and so that of Judicial Review, in relation to the Federal System. Marshall viewed the Court as primarily an organ of the National Government and of its supremacy. The Court under Taney regarded itself as standing outside of and above both the National Government and the States, and as vested with a quasi-arbitral function between two centers of diverse, but essentially equal, because "sovereign", powers. Thus in Ableman _v._ Booth, which was decided on the eve of the War between the States, we find Taney himself using this arresting language: This judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the general government.... So long ... as this Constitution shall endure, this tribunal must exist with it, deciding in the peaceful forms of judicial proceeding, the angry and irritating controversies between sovereignties, which in other countries have been determined by the arbitrament of force.[12] It is, therefore, the Taney Court, rather than the Marshall Court, which elaborated the concept of Dual Federalism. Marshall's federalism is more aptly termed national federalism; and turning to modern issues, we may say without exaggeration that the broad general constitutional issue between the Court and the Franklin D. Roosevelt program in such cases as Schechter Corp. _v._ United States and Carter _v._ Carter Coal Co.[13] was, whether Marshall's or Taney's brand of federalism should prevail. More precisely, the issue in these cases was whether Congress' power to regulate commerce must stop short of regulating the employer-employee relationship in industrial production, that having been hitherto regulated by the States. In Justice Sutherland's words in the Carter case: Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby.... The conclusive answer is that the evils are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. At common law, it is one of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity. And the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result. Such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the greatness of the effect adds to its importance. It does not alter its character.[14] We all know how this issue was finally resolved. In the Fair Labor Standards Act of 1938 Congress not only prohibits interstate commerce in goods produced by substandard labor, but it directly forbids, with penalties, the employment of labor in industrial production for interstate commerce on other than certain prescribed terms. And in United States _v._ Darby[15] this Act was sustained by the Court, in all its sweeping provisions, on the basis of an opinion by Chief Justice Stone which in turn is based on Chief Justice Marshall's famous opinions in McCulloch _v._ Maryland and Gibbons _v._ Ogden rendered more than a century and a quarter ago. In short, as a principle capable of delimiting the national legislative power, the concept of Dual Federalism as regards the present Court seems today to be at an end, with consequent aggrandizement of national power. There is, however, another side to the story. For in one respect even the great Marshall has been in effect overruled in support of enlarged views of national authority. Without essaying a vain task of "tithing mint, anise and cummin," it is fairly accurate to say that throughout the 100 years which lie between Marshall's death and the cases of the 1930's, the conception of the federal relationship which on the whole prevailed with the Court was a competitive conception, one which envisaged the National Government and the States as jealous rivals. To be sure, we occasionally get some striking statements of contrary tendency, as in Justice Bradley's opinion in 1880 for a divided Court in the Siebold Case,[16] where is reflected recognition of certain results of the War between the States; or later in a frequently quoted dictum by Justice McKenna, in Hoke _v._ United States, in which the Mann White Slave Act was sustained in 1913: Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction ... but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.[17] The competitive concept is, nevertheless, the one much more generally evident in the outstanding results for American Constitutional Law throughout three-quarters of its history. Of direct pertinence in this connection is the doctrine of tax exemption which converted federalism into a principle of private immunity from taxation, so that, for example, neither government could tax as income the official salaries paid by the other government.[18] This doctrine traces immediately to Marshall's famous judgment in McCulloch _v._ Maryland,[19] and bespeaks a conception of the federal relationship which regards the National Government and the States as bent on mutual frustration. Today the principle of tax exemption, except so far as Congress may choose to apply it to federal instrumentalities by virtue of its protective powers under the necessary and proper clause, is at an end. By the cooperative conception of the federal relationship the States and the National Government are regarded as mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government according to their applicability to the problem in hand. This is the conception on which the recent social and economic legislation professes to rest. It is the conception which the Court invokes throughout its decisions in sustaining the Social Security Act of 1935 and supplementary state legislation. It is the conception which underlies congressional legislation of recent years making certain crimes against the States, like theft, racketeering, kidnapping, crimes also against the National Government whenever the offender extends his activities beyond state boundary lines. The usually cited constitutional justification for such legislation is that which was advanced forty years ago in the above quoted Hoke Case.[20] It has been argued that the cooperative conception of the federal relationship, especially as it is realized in the policy of federal subventions to the States, tends to break down state initiative and to devitalize state policies. Actually, its effect has often been just the contrary, and for the reason pointed out by Justice Cardozo in Helvering _v._ Davis,[21] decided in 1937, namely, that the States, competing as they do with one another to attract investors, have not been able to embark separately upon expensive programs of relief and social insurance. Another great objection to Cooperative Federalism is more difficult to meet. This is, that Cooperative Federalism invites further aggrandizement of national power. Unquestionably it does, for when two cooperate, it is the stronger member of the combination who usually calls the tunes. Resting as it does primarily on the superior fiscal resources of the National Government, Cooperative Federalism has been, at least to date, a short expression for a constantly increasing concentration of power at Washington in the stimulation and supervision of local policies.[22] The last element of the concept of Federalism to demand attention is the doctrine that the National Government is a government of enumerated powers only, and consequently under the necessity at all times of justifying its measures juridically by pointing to some particular clause or clauses of the Constitution which, when read separately or in combination, may be thought to grant power adequate to such measures. In spite of such recent decisions as that in United States _v._ Darby, this time-honored doctrine still guides the authoritative interpreters of the Constitution in determining the validity of acts which are passed by Congress in presumed exercise of its powers of domestic legislation--the course of reasoning pursued by the Chief Justice in the Darby Case itself is proof that such is the fact. In the field of foreign relations, on the contrary, the doctrine of enumerated powers has always had a difficult row to hoe, and today may be unqualifiedly asserted to be defunct. As early as the old case of Penhallow _v._ Doane, which was decided by the Supreme Court in 1795, certain counsel thought it pertinent to urge the following conception of the War Power: A formal compact is not essential to the institution of a government. Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state. In every society there must be a sovereignty. 1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. sec. 4. The powers of war form an inherent characteristic of national sovereignty; and, it is not denied, that Congress possessed those powers....[23] To be sure, only two of the Justices felt it necessary to comment on this argument, which one of them endorsed, while the other rejected it. Yet seventy-five years later Justice Bradley incorporated closely kindred doctrine into his concurring opinion in the Legal Tender Cases;[24] and in the years following the Court itself frequently brought the same general outlook to questions affecting the National Government's powers in the field of foreign relations. Thus in the Chinese Exclusion Case, decided in 1889, Justice Field, in asserting the unlimited power of the National Government, and hence of Congress, to exclude aliens from American shores, remarked: While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with the powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.[25] And four years later the power of the National Government to deport alien residents at the option of Congress was based by Justice Gray on the same general reasoning.[26] Finally, in 1936, Justice Sutherland, speaking for the Court in United States _v._ Curtiss-Wright Corporation, with World War I a still recent memory, took over bodily counsel's argument of 140 years earlier, and elevated it to the head of the column of authoritative constitutional doctrine. He said: A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.... It results that the investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal government as a necessary concomitant of nationality.[27] In short, the power of the National Government in the field of international relationship is not simply a complexus of particular enumerated powers; it is an inherent power, one which is attributable to the National Government on the ground solely of its belonging to the American People as a sovereign political entity at International Law. In that field the principle of Federalism no longer holds, if it ever did.[28] II The Separation of Powers The second great structural principle of American Constitutional Law is supplied by the doctrine of the Separation of Powers. The notion of three distinct functions of government approximating what we today term the legislative, the executive, and the judicial, is set forth in Aristotle's Politics,[29] but it was the celebrated Montesquieu who, by joining the idea to the notion of a "mixed constitution" of "checks and balances", in Book XI of his Spirit of the Laws, brought Aristotle's discovery to the service of the rising libertarianism of the eighteenth century. It was Montesquieu's fundamental contention that "men entrusted with power tend to abuse it". Hence it was desirable to divide the powers of government, first, in order to keep to a minimum the powers lodged in any single organ of government; secondly, in order to be able to oppose organ to organ. In the United States libertarian application of the principle was originally not too much embarrassed by inherited institutions. In its most dogmatic form the American conception of the Separation of Powers may be summed up in the following propositions: (1) There are three intrinsically distinct functions of government, the legislative, the executive, and the judicial; (2) these distinct functions ought to be exercised respectively by three separately manned departments of government; which, (3) should be constitutionally equal and mutually independent; and finally, (4) a corollary doctrine stated by Locke--the legislature may not delegate its powers.[30] Prior even to Franklin D. Roosevelt this entire colligation of ideas had been impaired by three developments in national governmental practice: first, the growth of Presidential initiative in legislation; secondly, the delegation by Congress of legislative powers to the President; thirdly, the delegation in many instances of like powers to so-called independent agencies or commissions, in which are merged in greater or less measure the three powers of government of Montesquieu's postulate. Under Roosevelt the first two of these developments were brought to a pitch not formerly approximated, except temporarily during World War I. The truth is that the practice of delegated legislation is inevitably and inextricably involved with the whole idea of governmental intervention in the economic field, where the conditions to be regulated are of infinite complexity and are constantly undergoing change. Granted such intervention, it is simply out of the question to demand that Congress should attempt to impose upon the shifting and complex scene the relatively permanent molds of statutory provision, unqualified by a large degree of administrative discretion. One of the major reasons urged for governmental intervention is furnished by the need for gearing the different parts of the industrial process with one another for a planned result. In wartime this need is freely conceded by all; but its need in economic crisis is conceivably even greater, the results sought being more complex. So in the interest both of unity of design and of flexibility of detail, presidential power today takes increasing toll from both ends of the legislative process--both from the formulation of legislation and from its administration. In other words, as a barrier capable of preventing such fusion of presidential and congressional power, the principle of the Separation of Powers does not appear to have retained much of its original effectiveness; for on only one occasion[31] prior to the disallowance, in Youngstown _v._ Sawyer,[32] President Truman's seizure in April 1952 of the steel industry has the Court been constrained to condemn, as in conflict with that principle, a congressional delegation of legislative power. Indeed, its application in the field of foreign relations has been virtually terminated by Justice Sutherland's opinion in the Curtiss-Wright Case.[33] The Youngstown Opinion appears to rest on the proposition that since Congress could have ordered the seizure, e.g., under the necessary and proper clause, the President, in making it on his own, usurped "legislative power" and thereby violated the principle of the Separation of Powers. In referring to this proposition, the Chief Justice (in his dissenting opinion, for himself and Justices Reed and Minton) quoted as follows from a 1915 brief of the then Solicitor General of the United States on this same question: The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the _subjects_ concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation.[34] Or, in more general terms, the fact that one of the three departments may apply its distinctive techniques to a certain subject matter sheds little or no light on the question whether one of the other departments may deal with the same subject matter according to its distinctive techniques. Indeed, were it otherwise, the action of the Court in disallowing President Truman's seizure order would have been of very questionable validity, inasmuch as the President himself conceded that Congress could do so. The conception of the Separation of Powers doctrine advanced in Youngstown appears to have been an ad hoc discovery for the purpose of disposing of that particular case. To sum up the argument to this point: War, the Roosevelt-Truman programs, and the doctrines of Constitutional Law on which they rest, and the conception of governmental function which they incorporate, have all tremendously strengthened forces which even earlier were making, slowly, to be sure, but with "the inevitability of gradualness," for the concentration of governmental power in the United States, first in the hands of the National Government; and, secondly, in the hands of the national Executive. In the Constitutional Law which the validation of the Roosevelt program has brought into full being, the two main structural elements of government in the United States in the past, the principle of Dual Federalism and the doctrine of the Separation of Powers, have undergone a radical and enfeebling transformation which war has, naturally, carried still further. III A Government of Laws and Not of Men The earliest repositories of executive power in this country were the provincial governors. Being the point of tangency and hence of irritation between imperial policy and colonial particularism, these officers incurred a widespread unpopularity that was easily generalized into distrust of their office. So when Jefferson asserted in his _Summary View_, in 1774, that the King "is no more than the chief officer of the people, appointed by the laws and circumscribed with definite powers, to assist in working the great machine of government,"[35] he voiced a theory of executive power which, impudently as it flouted historical fact, had the support of the draftsmen of the first American constitutions. In most of these instruments the governors were elected annually by the legislative assemblies, were stripped of every prerogative of their predecessors in relation to legislation, and were forced to exercise the powers left them subject to the advice of a council chosen also by the assembly, and from its own members if it so desired. Finally, out of abundant caution the constitution of Virginia decreed that executive powers were to be exercised "according to the laws of" the Commonwealth, and that no power or prerogative was ever to be claimed "by virtue of any law, statute or custom of England." "Executive power", in short, was left entirely to legislative definition and was cut off from all resources of the common law and the precedents of English monarchy. Fortunately or unfortunately, the earlier tradition of executive power was not to be exorcised so readily. Historically, this tradition traces to the fact that the royal prerogative was residual power, that the monarch was first on the ground, that the other powers of government were off-shoots from monarchical power. Moreover, when our forefathers turned to Roman history, as they intermittently did, it was borne in upon them that dictatorship had at one time been a normal feature of republican institutions. And what history consecrated, doctrine illumined. In Chapter XI of John Locke's Second Treatise on Civil Government, from the pages of which much of the opening paragraphs of the Declaration of Independence comes, we read: "Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government".[36] In Chapter XIV of the same work we are told, nevertheless, that "prerogative" is the power "to act according to discretion without the prescription of the law and sometimes against it"; and that this power belongs to the executive, it being "impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm if they are executed with inflexible rigor." Nor, continues Locke, is this "undoubted prerogative" ever questioned, "for the people are very seldom or never scrupulous or nice in the point" whilst the prerogative "is in any tolerable degree employed for the use it was meant, that is, for the good of the people."[37] A parallel ambivalence pervades both practice and adjudication under the Constitution from the beginning. The opening clause of Article II of the Constitution reads: "The executive power shall be vested in a President of the United States of America". The primary purpose of this clause, which made its appearance late in the Convention and was never separately passed upon by it, was to settle the question whether the executive branch should be plural or single; a secondary purpose was to give the President a title. There is no hint in the published records that the clause was supposed to add cubits to the succeeding clauses which recite the President's powers and duties in detail. For all that, the "executive power" clause was invoked as a grant of power in the first Congress to assemble under the Constitution, and outside Congress in 1793. On the former occasion Madison and others advanced the contention that the clause empowered the President to remove without the Senate's consent all executive officers, even those appointed with that consent, and in effect this view prevailed, to be ratified by the Supreme Court 137 years later in the famous Oregon Postmaster Case.[38] In 1793 the protagonist of "executive power" was Alexander Hamilton, who appealed to the clause in defense of Washington's proclamation of neutrality, issued on the outbreak of war between France and Great Britain. Prompted by Jefferson to take up his pen and "cut him to pieces in face of public," Madison shifted position, and charged Hamilton with endeavoring to smuggle the prerogative of the King of Great Britain into the Constitution via the "executive power" clause.[39] Three years earlier Jefferson had himself written in an official opinion as Secretary of State: [The Executive branch of the government], "possessing the rights of self-government from nature, cannot be controlled in the exercise of them but by a law, passed in the forms of the Constitution".[40] This time judicial endorsement of the broad conception of the executive power came early. In laying the foundation in Marbury _v._ Madison for the Court's claim of power to pass on the constitutionality of acts of Congress, Marshall said: "The government of the United States has been emphatically termed a government of laws and not of men".[41] Two pages along he added these words: By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.[42] From these words arises the doctrine of Political Questions, an escape clause from the trammels of judicial review for high executive officers in the performance of their discretionary duties. The doctrine was continued, even expanded, by Marshall's successor. In Luther _v._ Borden,[43] decided in 1849, the Court was invited to review the determination by the President that the existing government of Rhode Island was "republican" in form. It declined the invitation, holding that the decision of Congress and of the President as Congress's delegate was final in the matter, and bound the courts. Otherwise said Chief Justice Taney, the guarantee clause of the Constitution (Article IV, section 4) "is a guarantee of anarchy and not of order". But a year later the same Chief Justice, speaking again for the unanimous Court, did not hesitate to rule that the President's powers as commander-in-chief were purely military in character, those of any top general or top admiral.[44] Hamilton had said the same thing in Federalist No. 69. Alongside the opinions of the Court of this period, however, stand certain opinions of Attorneys General that yield a less balanced bill of fare. For it is the case that, from the first down to the present year of grace, these family lawyers of the Administration in power have tended to favor expansive conceptions of presidential prerogative. As early as 1831 we find an Attorney-General arguing before the Supreme Court that, in performance of the trust enjoined upon him by the "faithful execution" clause, the President "not only may, but ... is bound to avail himself of every appropriate means not forbidden by law."[45] Especially noteworthy is a series of opinions handed down by Attorney-General Cushing in the course of the years 1853 to 1855. In one of these the Attorney-General laid down the doctrine that a marshal of the United States, when opposed in the execution of his duty by unlawful combinations too powerful to be dealt with by the ordinary processes of a federal court, had authority to summon the entire able-bodied force of his precinct as a _posse comitatus_, comprising not only bystanders and citizens generally but any and all armed forces,[46] which is precisely the theory upon which Lincoln based his call for volunteers in April, 1861. Also manifest is the debt of Lincoln's message of July 4, 1861, to these opinions. Here in so many words the President lays claim to "the war power", partly on the ground of his duty to "take care that the laws be faithfully executed", partly in reliance on his powers as Commander-in-Chief, incidentally furnishing thereby a formula which has frequently reappeared in opinions of Attorneys-General in recent years. Nor did Lincoln ever relinquish the belief that on the one ground or the other he possessed extraordinary resources of power which Congress lacked and the exercise of which it could not control--an idea in the conscientious pursuit of which his successor came to the verge of utter disaster. When first confronted with Lincoln's theory in the Prize Cases,[47] in the midst of war, a closely divided Court treated it with abundant indulgence; but in _Ex parte_ Milligan[48] another closely divided Court swung violently to the other direction, adopting the comfortable position that the normal powers of the government were perfectly adequate to any emergency that could possibly arise, and citing the war just "happily terminated" in proof. But once again the principle of equilibrium asserted itself. Five months after Milligan, the same Bench held unanimously in Mississippi _v._ Johnson[49] that the President is not accountable to any court save that of impeachment either for the nonperformance of his constitutional duties or for the exceeding of his constitutional powers. This was in the 1866-1867 term of Court. Sixteen years later, in 1882, Justice Samuel Miller gave classic expression to the principle of "a government of laws and not of men" in these words: "No man is so high that he is above the law.... All officers are creatures of the law and are bound to obey it."[50] Eight years later this same great Judge queried whether the President's duty to take care that the laws be faithfully executed is "limited to the enforcement of acts of Congress or of treaties according to their express terms," whether it did not also embrace "the rights, duties, and obligations growing out of the Constitution itself ... and all the protection implied by the nature of the government under the Constitution."[51] Then in 1895, in the Debs Case,[52] the Court sustained unanimously the right of the National Executive to go into the federal courts and secure an injunction against striking railway employees who were interfering with interstate commerce, although it was conceded that there was no statutory basis for such action. The opinion of the Court extends the logic of the holding to any widespread public interest. The great accession to presidential power in recent decades has been accompanied by the breakdown dealt with earlier of the two great structural principles of the American Constitutional System, the doctrine of Dual Federalism and the doctrine of the Separation of Powers. The first exponent of "the New Presidency", as some termed it, was Theodore Roosevelt, who tells us in his _Autobiography_ that the principle which governed him in his exercise of the presidential office was that he had not only a right but a duty "to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws."[53] In his book, _Our Chief Magistrate and his Powers_, Ex-President Taft warmly protested against the notion that the President has any constitutional warrant to attempt the role of a "Universal Providence."[54] A decade earlier his destined successor, Woodrow Wilson, had avowed the opinion that "the President is at liberty, both in law and conscience, to be as big a man as he can".[55] But it is the second Roosevelt who beyond all twentieth-century Presidents succeeded in affixing the stamp both of personality and of crisis upon the Presidency as it exists at this moment. In the solution of the problems of an economic crisis, "a crisis greater than war", he claimed for the National Government in general, and for the President in particular, powers which they had hitherto exercised only on the justification of war. Then when the greatest crisis in the history of our international relations arose, he imparted to the President's diplomatic powers new extension, now without consulting Congress, now with Congress's approval; and when at last we entered World War II, he endowed the precedents of both the War between the States and of World War I with unprecedented scope.[56] It is timely therefore to inquire whether American Constitutional Law today affords the Court a dependable weapon with which to combat effectively contemporary enlarged conceptions of presidential power. Pertinent in this connection is the aforementioned recent action of the Court in Youngstown _v._ Sawyer disallowing presidential seizure of the steel industry. The net result of that Case is distinctly favorable to presidential pretensions, in two respects: First, because of the failure of the Court to traverse the President's finding of facts allegedly justifying his action, an omission in accord with the doctrine of Political Questions; secondly, the evident endorsement by a majority of the Court of the doctrine that, as stated in Justice Clark's opinion: "The Constitution does grant to the President extensive authority in times of grave and imperative national emergency".[57] That the Court would have sustained, as against the President's action, a clear-cut manifestation of congressional action to the contrary is, on the other hand, unquestionable. In short, if we are today looking for a check upon the development of executive emergency government, our best reliance is upon the powers of Congress, which can always supply needed gaps in its legislation. The Court can only say "no", and there is no guarantee that in the public interest it would wish to assume this responsibility. IV The Concept of Substantive Due Process of Law A cursory examination of the pages of this volume reveals that fully a quarter of them deal with cases in which the Court has been asked to protect private interests of one kind or another against legislation, most generally state legislation, which is alleged to invade "liberty" or "property" contrary to "due process of law". How is this vast proliferation of cases, and attendant expansion of the Court's constitutional jurisdiction, to be explained? The explanation, in brief, is to be found in the replacement of the original meaning of the due process clause with a meaning of vastly greater scope. Judicial review is always a function, so to speak, of the viable Constitutional Law of a particular period. From what has been previously said in this Introduction, it clearly appears that the Court's interpretation of the Constitution has involved throughout considerable lawmaking, but in no other instance has its lawmaking been more evident than in its interpretation of the due process clauses, and in no other instance have the state judiciaries contributed so much to the final result. The modern concept of substantive due process is not the achievement of any one American high court; it is the joint achievement of several--in the end, of all.[58] The thing which renders the due process clause an important datum of American Constitutional Law is the role it has played first and last in articulating certain theories of private immunity with the Constitutional Document. The first such theory was Locke's conception of the property right as anterior to government and hence as setting a moral limit to its powers.[59] But while Locke's influence is seen to pervade the Declarations and Bills of Rights which often accompanied the revolutionary State Constitutions, yet their promise was early defeated by the overwhelming power of the first state legislatures, especially _vis-a-vis_ the property right. One highly impressive exhibit of early state legislative power is afforded by the ferocious catalogue of legislation directed against the Tories, embracing acts of confiscation, bills of pains and penalties, even acts of attainder. A second exhibit of the same kind is furnished by the flood of paper money laws and other measures of like intent which the widespread debtor class forced through the great majority of the state assemblies in the years following the general collapse of values in 1780. The most important reaction of the creditor interest to this course of legislation was its energetic part in bringing about the Philadelphia Convention. Closer, however, to our purpose is the leadership taken by the new federal judiciary in asserting the availability against predatory state legislation of extra-constitutional principles sounding in Natural Law. In 1795 Justice Paterson of the new Supreme Court admonished a Pennsylvania jury that to construe a certain state statute in a way to bring it into conflict with plaintiff's property rights would render it void. "Men," said he, "have a sense of property.... The preservation of property ... is a primary object of the social compact".[60] Three years later, Justice Chase proclaimed from the Supreme Bench itself, with characteristic emphasis, his rejection of the idea that state legislative power was absolute unless its authority was "expressly restrained" by the constitution of the State.[61] He too was thinking primarily of the rights of property. To dicta such as these constantly accrued others of like tenor from various high state courts, the total of which had come to comprise prior to the War between the States an impressive body of coherent doctrine protective of vested rights but claiming little direct support from written constitutional texts. This indeed was its weakness. For the question early obtruded itself, whether judicial review could pretend to operate on a merely moral basis. Both the notion that the Constitution was an emanation from the sovereignty of the people, and the idea that judicial review was but a special aspect of normal judicial function, forbade the suggestion. It necessarily followed that unless judicial protection of the property right against legislative power was to be waived, it must be rested on some clause of the constitutional document; and, inasmuch as the due process clause and the equivalent law of the land clause of certain of the early state constitutions were the only constitutional provisions which specifically mentioned property, they were the ones selected for the purpose. The absorptive powers of the law of the land clause, the precursor in the original state constitutions of the historically synonymous due process clause, was foreshadowed as early as 1819 in a dictum by Justice William Johnson of the United States Supreme Court: As to the words from Magna Charta ... after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.[62] Thirty-eight years later, in 1857, the prophecy of these words was realized in the famous Dred Scott Case,[63] in which Section 8 of the Missouri Compromise, whereby slavery was excluded from the territories, was held void under the Fifth Amendment, not on the ground that the procedure for enforcing it was not due process of law, but because the Court regarded it as unjust to forbid people to take their slaves, or other property, into the territories, the common property of all the States. Meanwhile, in the previous year (1856) the recently established Court of Appeals of New York had, in the landmark case of Wynehamer _v._ People,[64] set aside a state-wide prohibition law as comprising, with regard to liquors in existence at the time of its going into effect, an act of destruction of property not within the power of government to perform "even by the forms of due process of law". The term due process of law, in short, simply drops out of the clause, which comes to read "no person shall be deprived of property", period. At the same time Judge Comstock's opinion in the case sharply repudiates all arguments against the statute sounding in Natural Law concepts, fundamental principles of liberty, common reason and natural rights, and so forth. Such theories were subversive of the necessary powers of government. Furthermore, there was "no process of reasoning by which it can be demonstrated that the 'Act for the Prevention of Intemperance, Pauperism and Crime' is void, upon principles and theories outside of the constitution, which will not also, and by an easier induction, bring it in direct conflict with the constitution itself."[65] Thus it was foreshadowed that the law of the land and the due process of law clauses, which were originally inserted in our constitutions to consecrate a specific mode of trial in criminal cases, to wit, the grand jury, petit jury process of the common law, would be transformed into a general restraint upon substantive legislation capable of affecting property rights detrimentally. It is against this background that the adoption of the Fourteenth Amendment in 1868 must be projected. Applied, as in the Dred Scott and Wynehamer cases, the clause which forbids any State "to deprive any person of life, liberty or property without due process of law" proffered the Court, in implication, a vast new jurisdiction, but this the Court at first manifested the greatest reluctance to enter upon. It did not wish, it protested, to become "a perpetual censor upon all State legislation"; nor did it wish, by enlarged conceptions of the rights protected by the Amendment, to encourage Congress to take over, under the fifth section of the Amendment, the regulation of all civil rights. "The federal equilibrium" had already been sufficiently disturbed by the results of the War between the States and Reconstruction.[66] But this self-denying ordinance, which never had the support of more than a very narrow majority of the Court, soon began to crumble at the edges. It was a period of immense industrial expansion, and the men who directed this wanted a free hand. In 1878 the American Bar Association was formed from the elite of the American Bar. Organized as it was in the wake of the "barbarous" decision--as one member termed it--in Munn _v._ Illinois,[67] in which the Supreme Court had held that states were entitled by virtue of their police power to prescribe the charges of "businesses affected with a public interest," the Association, through its more eminent members, became the mouthpiece of a new constitutional philosophy which was compounded in about equal parts from the teachings of the British Manchester School of Political Economy and Herbert Spencer's highly sentimentalized version of the doctrine of evolution, just then becoming the intellectual vogue; plus a "booster"--in the chemical sense--from Sir Henry Maine's _Ancient Law_, first published in 1861. I refer to Maine's famous dictum that "the movement of the progressive societies has hitherto been a movement from _Status to Contract_". If hitherto, why not henceforth?[68] In short, the American people were presented, overnight as it were, with a new doctrine of Natural Law. Encouraged by certain dicta of dissenting Justices of the Supreme Court, a growing procession of high State courts--those of New York, Pennsylvania, Illinois, and Massachusetts, leading the way--now began infiltrating the due process clauses and especially the word "liberty" thereof, of their several State constitutions with the new revelation. The product of these activities was the doctrine of freedom of contract, the substantial purport of which was that any legislation which restricted the liberty of male persons twenty-one years of age, whether they were employers or employees, in the making of business contracts, far from being presumptively constitutional, must be justified by well known facts of which the court was entitled to take judicial notice; otherwise it fell under the ban of the due process clause.[69] At last, in 1898, the Supreme Court at Washington, following some tentative gestures in that direction, accepted the new dispensation outright. In Smyth _v._ Ames decided that year, partially overturning Munn _v._ Illinois, it gave notice of its intention to review in detail the "reasonableness" of railway rates set by State authority and in Holden _v._ Hardy it ratified, at the same term, the doctrine of freedom of contract.[70] The result of the two holdings for the Court's constitutional jurisdiction is roughly indicated by the fact that whereas it had decided 134 cases under the Amendment during the thirty preceding years, in the ensuing thirteen years it decided 430 such cases.[71] For more than a generation now the Court became the ultimate guardian, in the name of the Constitutional Document, of the _laissez-faire_ conception of the proper relation of Government to Private Enterprise, a rather inconstant guardian, however, for its fluctuating membership tipped the scales now in favor of Business, now in favor of Government. And today the latter tendency appears to have prevailed. In its decisions early in 1937 sustaining outstanding Roosevelt Administration measures, the Court not only subordinated the freedom of employers to contract to the freedom of employees to organize, but intimated broadly that liberty in some of its phases is much more dependent upon legislative implementation that upon judicial protection.[72] In contrast to this withdrawal, however, has been the Court's projection of another segment of "liberty" into new territory. In Gitlow _v._ New York,[73] decided in 1925, even in sustaining an antisyndicalist statute, the Court adopted _arguendo_ the proposition which it had previously rejected, that "liberty" in Amendment XIV renders available against the States the restraints which Amendment I imposes on Congress. For fifteen years little happened. Then in 1940, the Court supplemented its ruling in the Gitlow Case with the so-called "Clear and Present Danger" rule, an expedient which was designed to divest state enactments restrictive of freedom of speech, of press, of religion, and so forth, of their presumed validity, just as, earlier, statutes restrictive of freedom of contract had been similarly disabled. By certain of the Justices, this result was held to be required by "the preferred position" of some of these freedoms in the hierarchy of constitutional values; an idea to which certain other Justices demurred. The result to date has been a series of holdings the net product of which for our Constitutional Law is at this juncture difficult to estimate; and the recent decision in Dennis _v._ United States under Amendment I augments the difficulty.[74] A passing glance will suffice for the operation of the due process clause of Amendment V in the domain of foreign relations and the War Power. The reader has only to consult in these pages such holdings as those in Belmont _v._ United States, Yakus _v._ United States, Korematsu _v._ United States, to be persuaded that even the Constitution is no exception to the maxim, _inter arma silent leges_.[75] In short, the substantive doctrine of due process of law does not today support judicial intervention in the field of social and economic legislation in anything like the same measure that it did, first in the States, then through the Supreme Court on the basis of Amendment XIV, in the half century between 1885 and 1935. But this fact does not signify that the clause is not, in both its procedural sense and its broader sense, especially when supplemented by the equal protection clause of Amendment XIV, a still valuable and viable source of judicial protection against parochial despotisms and petty tyrannies. Yet even in this respect, as certain recent decisions have shown, the Court can often act more effectively on the basis of congressional legislation implementing the Amendment than when operating directly on the basis of the Amendment itself.[76] Résumé Considered for the two fundamental subjects of the powers of government and the liberties of individuals, interpretation of the Constitution by the Supreme Court falls into four tolerably distinguishable periods. The first, which reaches to the death of Marshall, is the period of the dominance of the Constitutional Document. The tradition concerning the original establishment of the Constitution was still fresh, and in the person and office of the great Chief Justice the intentions of the framers enjoyed a renewed vitality. This is not to say that Marshall did not have views of his own to advance; nor is it to say that the historicity of a particular theory concerning the Constitution is necessarily a matter of critical concern save to students of history. It is only to say that the theories which Marshall urged in support of his preferences were, in fact, frequently verifiable as theories of the framers of the Constitution. The second period is a lengthy one, stretching from the accession of Chief Justice Taney in 1835 to, say, 1895. It is the period _par excellence_ of Constitutional Theory. More and more the constitutional text fades into the background, and the testimony of the _Federalist_, Marshall's sole book of precedents, ceases to be cited. Among the theories which in one way or other received the Court's approval during this period were the notion of Dual Federalism, the doctrine of the Police Power, the taboo on delegation of legislative power, the derived doctrine of Due Process of Law, the conception of liberty as Freedom of Contract, and still others. The sources of some of these doctrines and the nature of the interests benefited by them have been indicated earlier in these pages. Their net result was to put the national law-making power into a strait-jacket so far as the regulation of business was concerned. The third period was that of Judicial Review pure and simple. The Court, as heir to the accumulated doctrines of its predecessors, found itself for the time being in possession of such a variety of instruments of constitutional exegesis that it was often able to achieve almost any result in the field of constitutional interpretation which it considered desirable, and that without flagrant departure from judicial good form. Indeed, it is altogether apparent that the Court was in actual possession and in active exercise of what Justice Holmes once termed "the sovereign prerogative of choice." It was early in this period that Governor Hughes, soon to ascend the Bench, said, without perhaps intending all that his words literally conveyed, "We are under a Constitution, but the Constitution is what the judges say it is." A decade later it was suggested by an eminent law teacher that attorneys arguing "due process cases" before the Court ought to address the Justices not as "Your Honors" but as "Your Lordships"; and Senator Borah, in the Senate debate on Mr. Hughes' nomination for Chief Justice, in 1930, declared that the Supreme Court had become "economic dictator in the United States". Some of the Justices concurred in these observations, especially Justices Holmes and Brandeis. Asserted the latter, the Court has made itself "a super-legislature" and Justice Holmes could discover "hardly any limit but the sky" to the power claimed by the Court to disallow State acts "which may happen to strike a majority [of its members] as for any reason undesirable".[77] The fourth period is still with us. It was ushered in by World War I, but its results were consolidated and extended during the 1930's, and have been subsequently still further enlarged and confirmed by World War II and the "cold war". Many of these results have been treated above. Others can be searched out in the pages of this volume. What they sum up to is this: that what was once vaunted as a Constitution of Rights, both State rights and private rights, has been replaced to a great extent by a Constitution of Powers. The Federal System has shifted base in the direction of a consolidated national power; within the National Government itself there has been an increased flow of power in the direction of the President; even judicial enforcement of the Bill of Rights has faltered at times, in the presence of national emergency. In this situation judicial review as exercised by the Supreme Court does not cease being an important technique of government under the Constitution, but its field of operation has contracted. The purpose which it serves more and more exclusively is the purpose for which it was originally created to serve, the maintenance of the principle of National Supremacy. But in fact, this is the purpose which it has always served predominantly, even in the era when it was cutting its widest swathe in the field of national legislative policy, the period from 1895 to 1935. Even then there was a multiplicity of state legislatures and only one Congress, so that the legislative grist that found its way to the Court's mill was overwhelmingly of local provenience. And since then several things have happened to confirm this predominance: first, the annexation to Amendment XIV of much of the content of the Federal Bill of Rights; secondly, the extension of national legislative power, especially along the route of the commerce clause, into the field of industrial regulation, with the result of touching state legislative power on many more fronts than ever before; thirdly, the integration of the Nation's industrial life, which has brought to the National Government a major responsibility for the maintenance of a functioning social order. Forty years ago the late Justice Holmes said: "I do not think the United States would come to an end if we [the Court] lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States".[78] By and large, this still sizes up the situation. Edward S. Corwin. _January, 1953._ Notes [1] _Cong. Record_, vol. 23, p. 6516. [2] _The Genessee Chief_, 12 How. 443 (1851), overturning _The Thomas Jefferson_, 10 Wheat. 428 (1825). [3] Knox _v._ Lee, 12 Wall. 457 (1871); Hepburn _v._ Griswold, 8 Wall. 603 (1870). [4] Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429; Same, 158 U.S. 601. [5] _Cong. Record_, vol. 78, p. 5358. [6] Smith _v._ Allwright, 321 U.S. 649, 665. [7] Ibid. 669. [8] _The Supreme Court in United States History_, III, 470-471 (1922). [9] The Dartmouth College Case (1819) occupies 197 pages of 4 Wheaton; Gibbons _v._ Ogden (1824), 240 pages of 9 Wheaton; The Charles River Bridge case (1837), 230 pages of 11 Peters; the Passenger Cases (1849), 290 pages of 7 Howard; the Dred Scott Case (1857), 240 pages of 19 Howard; _Ex parte_ Milligan (1866), 140 pages of 4 Wallace; the first Pollock Case (1895), 325 pages of 157 U.S.; Myers _v._ United States (1926), 243 pages of 272 U.S. [10] Max Farrand, _The Records of the Federal Convention of 1787_, III, 240-241 (1911). [11] See Taney's words in 5 How. 504, 573-574 (1847), and 7 How. 283, 465-70 (1849). [12] 21 How. 506, 520-521 (1859). [13] 295 U.S. 495 (1935); 298 U.S. 238 (1936). [14] 298 U.S. 238, 308-309. [15] 312 U.S. 100 (1941). [16] 100 U.S. 371. [17] 227 U.S. 308, 322. [18] Dobbins _v._ Commsrs., 16 Pet. 435 (1842); Collector _v._ Day, 11 Wall. 113. (1870). [19] 4 Wheat. 316, 431 (1819). [20] For references and further details, see E.S. Corwin, _Court over Constitution_, 129-176 (1938). [21] [Transcriber's Note: Footnote 21 is missing from original text.] [22] In this connection, _see_ Oklahoma _v._ Civil Service Comm'n., 330 U.S. 127, 142-145 (1947). [23] 3 Dall. 54, 74. [24] 12 Wall. 457, 555 (1871). [25] 130 U.S. 581, 604. [26] Fong Yue Ting, 149 U.S. 698 (1893). [27] 299 U.S. 304, 316-318. [28] _See also_ University of Illinois _v._ United States, 289 U.S. 48, 59 (1933). In Lichter _v._ United States, 334 U.S. 742, 782 (1948), Justice Burton, speaking for the Court, says: "The war powers of Congress and the President are only those which are derived from the Constitution", but he adds: "the primary implication of a war power is that it shall be an effective power to wage war successfully", which looks very like an attempt to duck the doctrine of an inherent war power while appropriating its results. [29] Welldon (tr.), Book VI, chap. XIV (1888). Jowett and some others propose a different arrangement. [30] John Locke. The Second Treatise on Civil Government, § 141. For the historical background of this principle, see P.W. Duff and H.E. Whiteside, "_Delegata Potestas Non P[=o]test Delegari_", _Selected Essays on Constitutional Law_, IV, 291-316 (1938). [31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter Corp. _v._ United States, 295 U.S. 495 (1935). [32] 343 U.S. 579 (1952). [33] 299 U.S. 304, 327-329. [34] 343 U.S. 579, 690. [35] Andrew C. McLaughlin, _A Constitutional History of the United States_, 81 (1935). [36] Locke, op. cit., § 137. [37] Ibid., § 159-161. [38] Meyers _v._ United States, 272 U.S. 52 (1926). [39] For the famous debate between "Pacificus" (Hamilton) and "Helvidius" (Madison), see E.S. Corwin, _The President's Control of Foreign Relations_, chap. I (1917). [40] Writings of Thomas Jefferson, V, 209 (P.L. Ford, ed.; 1895). [41] 1 Cr. 137, 163 (1803). [42] Ibid., 165-166. [43] 7 How. 1. [44] Fleming _v._ Page, 9 How. 602 (1850). [45] United States _v._ Tingy, 5 Pet. 115, 122. [46] 6 _Op. Atty. Gen._ 466 (1854). [47] 2 Black 635 (1863). [48] 4 Wall. 2 (1866). [49] 4 Wall. 475 (1866). [50] United States _v._ Lee, 106 U.S. 196, 220. [51] In Re Neagle, 135 U.S. 1, 64. [52] 158 U.S. 564. [53] _Autobiography_, 388-389 (1913). [54] _Op. cit._, 144 (1916). [55] _Constitutional Government in the United States_, 70 (1908). [56] _See_ E.S. Corwin. _Total War and the Constitution_, 35-77 (1947). [57] 343 U.S. 579, 662. [58] _See_ E.S. Corwin. _Liberty Against Government_, Chaps. III, IV (1948). [59] "... the supreme power cannot take from any man any part of his property without his consent". _Second Treatise_, § 138. [60] Van Home's Lessee _v._ Dorrance, 2 Dall. 304, 310 (1795). [61] Calder _v._ Bull, 3 Dall. 386, 388-389 (1798). _See also_ Loan Association _v._ Topeka, 20 Wall. 655 (1875). [62] Bank of Columbia _v._ Okely, 4 Wheat. 235, 244. [63] Scott _v._ Sandford, 19 How. 393, 450 (1857). [64] 13 N.Y. 378 (1856). [65] Ibid. 390-392. The absolute veto of the Court of Appeals in the Wynehamer case was replaced by the Supreme Court, under the due process clause of the Fourteenth Amendment, by a more flexible doctrine, which left it open to the State to show reasonable justification for that type of legislation in terms of acknowledged ends of the Police Power, namely, the promotion of the public health, safety and morals. _See_ Mugler _v._ Kansas, 123 U.S. 623 (1887); and for a transitional case, Bartemeyer _v._ Iowa, 18 Wall. 129 (1874). [66] The Slaughter House Cases, 16 Wall. 36, 78-82 (1873). The opinion of the Court was focused principally on the privileges and immunities clause, and the narrow construction given it at this time is still the law of the Court. But Justices Bradley and Swayne pointed out the potentialities of the due process of law clause, and the former's interpretation of it may be fairly regarded as the first step toward the translation by the Court of "liberty" as Freedom on Contract. [67] 94 U.S. 113 (1876). [68] Benjamin R. Twiss, _Lawyers and the Constitution, How Laissez Faire Came to the Supreme Court_, 141-173 (1942). [69] _See_ especially Lochner _v._ New York, 198 U.S. 45 (1905); and Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). [70] 169 U.S. 466; ibid. 366. [71] _See_ Charles W. Collins, _The Fourteenth Amendment and the States_, 188-206 (1912). [72] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 33-34; West Coast Hotel Co. _v._ Parrish, 300 U.S. 379, 391-392. [73] 268 U.S. 652, 666; _cf._ Prudential Ins. Co. _v._ Cheek, 259 U.S. 530, 543 (1922). [74] The subject can be pursued in detail in connection with Amendment I, pp. 769-810. [75] These cases are treated in the text, _see_ Table of Cases. [76] _See_ Williams _v._ United States, 341 U.S. 97 (1951). [77] _See:_ Oliver Wendell Holmes, _Collected Legal Papers_, 239, 295-296 (1920); Merlo J. Pusey, _Charles Evans Hughes_, I, 203-206 (1951). Burns Baking Co. _v._ Bryan, 204 U.S. 504, 534 (1924); Baldwin _v._ Missouri, 281 U.S. 586, 595 (1930); _American Political Science Review_, xii, 241 (1918); _New York Times_, February 12, 1930. It was also during the same period that Judge Andrew A. Bruce of North Dakota wrote: "We are governed by our judges and not by our legislatures.... It is our judges who formulate our public policies and our basic law". _The American Judge_, 6, 8 (1924). Substantially contemporaneously a well read French critic described our system as _Le Gouvernment des Juges_ (1921); while toward the end of the period Louis B. Boudin published his well known _Government by Judiciary_ (2 vols., 1932). [78] _Collected Legal Papers_, 295-296. CONTENTS [For contents in detail, see tables at beginning of each article and amendment] Page Prefaces III, V Editor's forward VII Editor's introduction IX Historical note on formation of the Constitution 9 Text of the Constitution (literal print) 17 Text of the amendments (literal print) 37 The Constitution, with annotations 55 The preamble 59 Article I. Legislative Department: Section 1. The Congress 71 2. House of Representatives 87 3. Senate 91 4. Elections and meetings 92 5. Legislative proceedings 95 6. Rights of Members 99 7. Bills and resolutions 101 8. Powers of Congress 105 9. Powers denied to Congress 312 10. Powers denied to the States 325 Article II. Executive Department: Section 1. The President 377 2. Powers and duties of the President 389 3. Miscellaneous powers and duties of the President 462 4. Impeachment 501 Article III. Judicial Department: Section 1. The judges, their terms, and compensation 511 2. Jurisdiction 538 3. Treason 638 Article IV. Federal relations: Section 1. Full faith and credit given in each State 647 2. Citizens 686 3. New States and government of Territory, etc. 697 4. Form of State government 704 Article V. Mode of amendment 707 Article VI. Miscellaneous provisions 717 Article VII. Ratification 741 Amendments to the Constitution: Amendment 1. Religion, free speech, etc. 753 2. Bearing arms 811 3. Quartering soldiers 815 4. Searches and seizures 819 5. Rights of persons 833 6. Rights of accused in criminal prosecutions 873 7. Civil trials 887 8. Punishment for crime 899 9. Rights retained by the people 907 10. Reserved State powers 911 11. Suits against States 923 12. Election of President, etc. 937 13. Slavery and involuntary servitude 945 Section 1. Prohibition of slavery and involuntary servitude 949 2. Power of Congress 949 14. Rights of citizens 955 Section 1. Citizenship; due process; equal protection 963 2. Apportionment of representation 1170 3. Disqualification of officers 1173 4. Public debt; claims for loss of slaves 1174 5. Enforcement 1175 15. Right of citizens to vote 1179 Section 1. Suffrage not to be abridged for race, color, etc. 1183 2. Power of Congress 1183 16. Income tax 1187 17. Popular election of Senators 1203 18. Prohibition of intoxicating liquors 1209 Section 1. Prohibition of intoxicating liquors 1213 2. Concurrent power to enforce 1213 3. Time limit on ratification 1213 19. Equal suffrage 1215 20. Commencement of the terms of the President, Vice President, and Members of Congress, etc. 1221 Section 1. Commencement of terms of President, Vice President, Senators, and Representatives 1225 2. Meeting of Congress 1225 3. Death or disqualification of President elect 1225 4. Congress to provide for case wherein death occurs among those from whom House chooses a President 1225 5. Date of effect 1226 6. Time limit on ratificn 1226 21. Repeal of Eighteenth Amendment 1227 Section 1. Repeal of prohibition 1231 2. Transportation into States prohibited 1231 3. Time limit on ratification 1231 22. Presidential Tenure 1235 Section 1. Restriction on Number of terms 1237 2. Time limit on ratification 1237 Acts of Congress held unconstitutional in whole or in part by the Supreme Court of the United States 1239 Table of Cases 1257 Index 1337 THE CONSTITUTION OF THE UNITED STATES OF AMERICA HISTORICAL NOTE ON FORMATION OF THE CONSTITUTION In June 1774, the Virginia and Massachusetts assemblies independently proposed an intercolonial meeting of delegates from the several colonies to restore union and harmony between Great Britain and her American Colonies. Pursuant to these calls there met in Philadelphia in September of that year the first Continental Congress, composed of delegates from 12 colonies. On October 14, 1774, the assembly adopted what has come to be known as the Declaration and Resolves of the First Continental Congress. In that instrument, addressed to His Majesty and to the people of Great Britain, there was embodied a statement of rights and principles, many of which were later to be incorporated in the Declaration of Independence and the Federal Constitution.[a] This Congress adjourned in October with a recommendation that another Congress be held in Philadelphia the following May. Before its successor met, the battle of Lexington had been fought. In Massachusetts the colonists had organized their own government in defiance of the royal governor and the Crown. Hence, by general necessity and by common consent, the second Continental Congress assumed control of the "Twelve United Colonies", soon to become the "Thirteen United Colonies" by the cooperation of Georgia. It became a _de facto_ government: it called upon the other colonies to assist in the defense of Massachusetts; it issued bills of credit; it took steps to organize a military force, and appointed George Washington commander in chief of the Army. While the declaration of the causes and necessities of taking up arms of July 6, 1775,[b] expressed a "wish" to see the union between Great Britain and the colonies "restored", sentiment for independence was growing. Finally, on May 15, 1776, Virginia instructed her delegates to the Continental Congress to have that body "declare the united colonies free and independent States."[c] Accordingly on June 7 a resolution was introduced in Congress declaring the union with Great Britain dissolved, proposing the formation of foreign alliances, and suggesting the drafting of a plan of confederation to be submitted to the respective colonies.[d] Some delegates argued for confederation first and declaration afterwards. This counsel did not prevail. Independence was declared on July 4, 1776; the preparation of a plan of confederation was postponed. It was not until November 17, 1777, that the Congress was able to agree on a form of government which stood some chance of being approved by the separate States. The Articles of Confederation were then submitted to the several States, and on July 9, 1778, were finally approved by a sufficient number to become operative. Weaknesses inherent in the Articles of Confederation became apparent before the Revolution out of which that instrument was born had been concluded. Even before the thirteenth State (Maryland) conditionally joined the "firm league of friendship" on March 1, 1781, the need for a revenue amendment was widely conceded. Congress under the Articles lacked authority to levy taxes. She could only request the States to contribute their fair share to the common treasury, but the requested amounts were not forthcoming. To remedy this defect, Congress applied to the States for power to lay duties and secure the public debts. Twelve States agreed to such an amendment, but Rhode Island refused her consent, thereby defeating the proposal. Thus was emphasized a second weakness in the Articles of Confederation, namely, the _liberum veto_ which each State possessed whenever amendments to that instrument were proposed. Not only did all amendments have to be ratified by each of the 13 States, but all important legislation needed the approval of 9 States. With several delegations often absent, one or two States were able to defeat legislative proposals of major importance. Other imperfections in the Articles of Confederation also proved embarrassing. Congress could, for example, negotiate treaties with foreign powers, but all treaties had to be ratified by the several States. Even when a treaty was approved, Congress lacked authority to secure obedience to its stipulations. Congress could not act directly upon the States or upon individuals. Under such circumstances foreign nations doubted the value of a treaty with the new republic. Furthermore, Congress had no authority to regulate foreign or interstate commerce. Legislation in this field, subject to unimportant exceptions, was left to the individual States. Disputes between States with common interests in the navigation of certain rivers and bays were inevitable. Discriminatory regulations were followed by reprisals. Virginia, recognizing the need for an agreement with Maryland respecting the navigation and jurisdiction of the Potomac River, appointed in June 1784, four commissioners to "frame such liberal and equitable regulations concerning the said river as may be mutually advantageous to the two States." Maryland in January 1785 responded to the Virginia resolution by appointing a like number of commissioners[e] "for the purpose of settling the navigation and jurisdiction over that part of the bay of Chesapeake which lies within the limits of Virginia, and over the rivers Potomac and Pocomoke" with full power on behalf of Maryland "to adjudge and settle the jurisdiction to be exercised by the said States, respectively, over the waters and navigations of the same."[f] At the invitation of Washington the commissioners met at Mount Vernon, in March 1785, and drafted a compact which, in many of its details relative to the navigation and jurisdiction of the Potomac, is still in force.[g] What is more important, the commissioners submitted to their respective States a report in favor of a convention of all the States "to take into consideration the trade and commerce" of the Confederation. Virginia, in January 1786, advocated such a convention, authorizing its commissioners to meet with those of other States, at a time and place to be agreed on, "to take into consideration the trade of the United States; to examine the relative situations and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States, such an act relative to this great object, as when unanimously ratified by them, will enable the United States in Congress, effectually to provide for the same."[h] This proposal for a general trade convention seemingly met with general approval; nine States appointed commissioners. Under the leadership of the Virginia delegation, which included Randolph and Madison, Annapolis was accepted as the place and the first Monday in September 1786 as the time for the convention. The attendance at Annapolis proved disappointing. Only five States--Virginia, Pennsylvania, Delaware, New Jersey, and New York--were represented; delegates from Massachusetts, New Hampshire, North Carolina, and Rhode Island failed to attend. Because of the small representation, the Annapolis convention did not deem "it advisable to proceed on the business of their mission." After an exchange of views, the Annapolis delegates unanimously submitted to their respective States a report in which they suggested that a convention of representatives from all the States meet at Philadelphia on the second Monday in May 1787 to examine the defects in the existing system of government and formulate "a plan for supplying such defects as may be discovered."[i] The Virginia legislature acted promptly upon this recommendation and appointed a delegation to go to Philadelphia. Within a few weeks New Jersey, Pennsylvania, North Carolina, Delaware, and Georgia also made appointments. New York and several other States hesitated on the ground that, without the consent of the Continental Congress, the work of the convention would be extra-legal; that Congress alone could propose amendments to the Articles of Confederation. Washington was quite unwilling to attend an irregular convention. Congressional approval of the proposed convention became, therefore, highly important. After some hesitancy Congress approved the suggestion for a convention at Philadelphia "for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union." Thereupon, the remaining States, Rhode Island alone excepted, appointed in due course delegates to the Convention, and Washington accepted membership on the Virginia delegation. Although scheduled to convene on May 14, 1787, it was not until May 25 that enough delegates were present to proceed with the organization of the Convention. Washington was elected as presiding officer. It was agreed that the sessions were to be strictly secret. On May 29 Randolph, on behalf of the Virginia delegation, submitted to the convention 15 propositions as a plan of government. Despite the fact that the delegates were limited by their instructions to a revision of the Articles, Virginia had really recommended a new instrument of government. For example, provision was made in the Virginia plan for the separation of the three branches of government; under the Articles executive, legislative, and judicial powers were vested in the Congress. Furthermore the legislature was to consist of two houses rather than one. On May 30 the Convention went into a committee of the whole to consider the 15 propositions of the Virginia plan _seriatim_. These discussions continued until June 13, when the Virginia resolutions in amended form were reported out of committee. They provided for proportional representation in both houses. The small States were dissatisfied. Therefore, on June 14 when the Convention was ready to consider the report on the Virginia plan, Paterson of New Jersey requested an adjournment to allow certain delegations more time to prepare a substitute plan. The request was granted, and on the next day Paterson submitted nine resolutions embodying important changes in the Articles of Confederation, but strictly amendatory in nature. Vigorous debate followed. On June 19 the States rejected the New Jersey plan and voted to proceed with a discussion of the Virginia plan. The small States became more and more discontented; there were threats of withdrawal. On July 2 the convention was deadlocked over giving each State an equal vote in the upper house--five States in the affirmative, five in the negative, one divided.[j] The problem was referred to a committee of 11, there being 1 delegate from each State, to effect a compromise. On July 5 the committee submitted its report, which became the basis for the "great compromise" of the convention. It was recommended that in the upper house each State should have an equal vote, that in the lower branch each State should have one representative for every 40,000 inhabitants, counting three-fifths of the slaves, that money bills should originate in the lower house (not subject to amendment by the upper chamber). When on July 12 the motion of Gouverneur Morris of Pennsylvania that direct taxation should also be in proportion to representation, was adopted, a crisis had been successfully surmounted. A compromise spirit began to prevail. The small States were now willing to support a strong national government. Debates on the Virginia resolutions continued. The 15 original resolutions had been expanded into 23. Since these resolutions were largely declarations of principles, on July 24 a committee of five[k] was selected to draft a detailed constitution embodying the fundamental principles which had thus far been approved. The Convention adjourned from July 26 to August 6 to await the report of its committee of detail. This committee, in preparing its draft of a Constitution, turned for assistance to the State constitutions, to the Articles of Confederation, to the various plans which had been submitted to the Convention and other available material. On the whole the report of the committee conformed to the resolutions adopted by the Convention, though on many clauses the members of the committee left the imprint of their individual and collective judgments. In a few instances the committee avowedly exercised considerable discretion. From August 6 to September 10 the report of the committee of detail was discussed, section by section, clause by clause. Details were attended to, further compromises were effected. Toward the close of these discussions, on September 8, another committee of five[l] was appointed "to revise the style of and arrange the articles which had been agreed to by the house." On Wednesday, September 12 the report of the committee of style was ordered printed for the convenience of the delegates. The Convention for 3 days compared this report with the proceedings of the Convention. The Constitution was ordered engrossed on Saturday, September 15. The Convention met on Monday, September 17, for its final session. Several of the delegates were disappointed in the result. A few deemed the new Constitution a mere makeshift, a series of unfortunate compromises. The advocates of the Constitution, realizing the impending difficulty of obtaining the consent of the States to the new instrument of Government, were anxious to obtain the unanimous support of the delegations from each State. It was feared that many of the delegates would refuse to give their individual assent to the Constitution. Therefore, in order that the action of the convention would appear to be unanimous, Gouverneur Morris devised the formula "Done in Convention, by the unanimous consent of the States present the 17th of September * * * In witness whereof we have hereunto subscribed our names." Thirty-nine of the forty-two delegates present thereupon "subscribed" to the document.[m] The Convention had been called to revise the Articles of Confederation. Instead, it reported to the Continental Congress a new Constitution. Furthermore, while the Articles specified that no amendments should be effective until approved by the legislatures of all the States, the Philadelphia Convention suggested that the new Constitution should supplant the Articles of Confederation when ratified by conventions in nine States. For these reasons, it was feared that the new Constitution might arouse opposition in Congress. Three members of the Convention--Madison, Gorham, and King--were also Members of Congress. They proceeded at once to New York, where Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress on September 28, after some debate, decided to submit the Constitution to the States for action. It made no recommendation for or against adoption. Two parties soon developed, one in opposition and one in support of the Constitution, and the Constitution was debated, criticized, and expounded clause by clause. Hamilton, Madison, and Jay wrote a series of commentaries, now known as the Federalist Papers, in support of the new instrument of government.[n] The closeness and bitterness of the struggle over ratification and the conferring of additional powers on the central government can scarcely be exaggerated. In some States ratification was effected only after a bitter struggle in the State convention itself. Delaware, on December 7, 1787, became the first State to ratify the new Constitution, the vote being unanimous. Pennsylvania ratified on December 12, 1787, by a vote of 46 to 23, a vote scarcely indicative of the struggle which had taken place in that State. New Jersey ratified on December 19, 1787, and Georgia on January 2, 1788, the vote in both States being unanimous. Connecticut ratified on January 9, 1788; yeas 128, nays 40. On February 6, 1788, Massachusetts, by a narrow margin of 19 votes in a convention with a membership of 355, endorsed the new Constitution, but recommended that a bill of rights be added to protect the States from Federal encroachment on individual liberties. Maryland ratified on April 28, 1788; yeas 63, nays 11. South Carolina ratified on May 23, 1788; yeas 149, nays 73. On June 21, 1788, by a vote of 57 to 46, New Hampshire became the ninth State to ratify, but like Massachusetts she suggested a bill of rights. By the terms of the Constitution nine States were sufficient for its establishment among the States so ratifying. The advocates of the new Constitution realized, however, that the new government could not succeed without the addition of New York and Virginia, neither of which had ratified. Madison, Marshall, and Randolph led the struggle for ratification in Virginia. On June 25, 1788, by a narrow margin of 10 votes in a convention of 168 members, that State ratified over the objection of such delegates as George Mason and Patrick Henry. In New York an attempt to attach conditions to ratification almost succeeded. But on July 26, 1788, New York ratified, with a recommendation that a bill of rights be appended. The vote was close--yeas 30, nays 27. Eleven States having thus ratified the Constitution,[o] the Continental Congress--which still functioned at irregular intervals--passed a resolution on September 13, 1788, to put the new Constitution into operation. The first Wednesday of January 1789 was fixed as the day for choosing presidential electors, the first Wednesday of February for the meeting of electors, and the first Wednesday of March (i.e. March 4, 1789) for the opening session of the new Congress. Owing to various delays, Congress was late in assembling, and it was not until April 30, 1789, that George Washington was inaugurated as the first President of the United States. Notes [a] The colonists, for example, claimed the right "to life, liberty, and property", "the rights, liberties, and immunities of free and natural-born subjects within the realm of England"; the right to participate in legislative councils; "the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of [the common law of England]"; "the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws"; "a right peaceably to assemble, consider of their grievances, and petition the king." They further declared that the keeping of a standing army in the colonies in time of peace without the consent of the colony in which the army was kept was "against law"; that it was "indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other"; that certain acts of Parliament in contravention of the foregoing principles were "infringements and violations of the rights of the colonists." (Text in Documents Illustrative of the Formation of the Union, pp. 1-5.) [b] Text in Documents Illustrative of the Formation of the Union, pp. 10-17. [c] Ibid., pp. 19-20. [d] Ibid., p. 21. [e] George Mason, Edmund Randolph, James Madison, and Alexander Henderson were appointed commissioners for Virginia; Thomas Johnson, Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer for Maryland. [f] The text of the resolutions is to be found in 153 U.S. 162-163. [g] See Wharton _v._ Wise, 153 U.S. 155 [1894]. [h] Text in Documents Illustrative of the Formation of the Union, p. 38. [i] Ibid., pp. 39-43. [j] The New Hampshire delegation did not arrive until July 23, 1787. [k] Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth of Connecticut, and Wilson of Pennsylvania. [l] William Samuel Johnson of Connecticut, Alexander Hamilton of New York, Gouverneur Morris of Pennsylvania, James Madison of Virginia, and Rufus King, of Massachusetts. [m] At least 65 persons had received appointments as delegates to the Convention; 55 actually attended at different times during the course of the proceedings; 39 signed the document. It has been estimated that generally fewer than 30 delegates attended the daily sessions. For further details respecting the Convention of 1787 _see_: Elliott, Debates; Farrand, Records of the Constitutional Conventions; Farrand, The Framing of the Constitution; Meigs, Growth of the Constitution. [n] These commentaries on the Constitution, written during the struggle for ratification, have been frequently cited by the Supreme Court as an authoritative contemporary interpretation of the meaning of its provisions. [o] North Carolina added her ratification on November 21, 1789; yeas 184, nays 77. Rhode Island did not ratify until May 29, 1790; yeas 34, nays 32. THE CONSTITUTION OF THE UNITED STATES OF AMERICA LITERAL PRINT CONSTITUTION OF THE UNITED STATES We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Article. I. Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section. 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section. 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section. 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section. 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Section. 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Article. II. Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Article. III. Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. Article. IV. Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section. 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. Article. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate. Article. VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. Article. VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. [Sidenote: The Word, "the," being interlined between the seventh and eighth Lines of the first Page, The Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page. Attest William Jackson Secretary] done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names, Go Washington--Presidt and deputy from Virginia New Hampshire { John Langdon { Nicholas Gilman Massachusetts { Nathaniel Gorham { Rufus King Connecticut { Wm: Saml. Johnson { Roger Sherman New York : : : Alexander Hamilton { Wil: Livingston New Jersey { David Brearley. { Wm. Paterson. { Jona: Dayton { B Franklin { Thomas Mifflin { Robt Morris Pennsylvania { Geo. Clymer { Thos. FitzSimons { Jared Ingersoll { James Wilson { Gouv Morris { Geo: Read { Gunning Bedford jun Delaware { John Dickinson { Richard Bassett { Jaco: Broom { James McHenry Maryland { Dan of St Thos. Jenifer { Danl Carroll Virginia { John Blair-- { James Madison Jr. { Wm. Blount North Carolina { Richd. Dobbs Spaight. { Hu Williamson { J. Rutledge South Carolina { Charles Cotesworth Pinckney { Charles Pinckney { Pierce Butler Georgia { William Few { Abr Baldwin * * * * * In Convention Monday, September 17th 1787. Present The States of New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia. Resolved, That the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled. Resolved, That it is the Opinion of this Convention, that as soon as the Conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President, and the Time and Place for commencing Proceedings under this Constitution. That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fixed for the Election of the President, and should transmit their Votes certified, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled, that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution. By the Unanimous Order of the Convention Go. Washington Presidt W. Jackson Secretary. AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.[a] Amendment [I.][b] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Amendment [II.] A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Amendment [III.] No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Amendment [IV.] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment [V.] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment [VI.] In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Amendment [VII.] In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Amendment [VIII.] Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment [IX.] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment [X.] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment [XI.][c] The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Amendment [XII.][d] The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. Amendment XIII.[e] Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. Amendment XIV.[f] Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Amendment XV.[g] Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. Amendment XVI.[h] The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. Amendment [XVII.][i] The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: _Provided_, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. Amendment [XVIII.][j] Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. Amendment [XIX.][k] The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation. Amendment [XX.][l] Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. Sec. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. Sec. 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. Sec. 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. Sec. 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. Sec. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission. Amendment [XXI.][m] Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. Amendment [XXII.][n] Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. Section 2. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress. Notes [a] In Dillon _v._ Gloss, 256 U.S. 368 [1921], the Supreme Court stated that it would take Judicial notice of the date on which a State ratified a proposed constitutional amendment. Accordingly the Court consulted the State Journals to determine the dates on which each house of the legislature of certain States ratified the 18th Amendment. It, therefore, follows that the date on which the governor approved the ratification, or the date on which the secretary of state of a given State certified the ratification, or the date on which the Secretary of State of the United States received a copy of said certificate, or the date on which he proclaimed that the amendment had been ratified are not controlling. Hence, the ratification date given in the following notes is the date on which the legislature of a given State approved the particular amendment (signature by the speaker or presiding officers of both houses being considered a part of the ratification of the "legislature"). When that date is not available, the date given is that on which it was approved by the governor or certified by the secretary of state of the particular State. In each case such fact has been noted. Except as otherwise indicated information as to ratification is based on data supplied by the Department of State. [b] Brackets enclosing an amendment number indicate that the number was not specifically assigned in the resolution proposing the amendment. It will be seen, accordingly, that only amendments XIII, XIV, XV and XVI were thus technically ratified by number. The first 10 amendments along with 2 others which failed of ratification were proposed by Congress on September 25, 1789, when they passed the Senate [1 Ann. Cong. (1st Cong., 1st sess.) 90], having previously passed the House on September 24 [_Id._, 948]. They appear officially in 1 Stat. 97. Ratification was completed on December 15, 1791, when the eleventh State (Virginia) approved these amendments, there being then 14 States in the Union. The several State legislatures ratified the first 10 amendments to the Constitution (i.e. nos. 3 to 12 of those proposed) on the following dates: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 27, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791. The two amendments which failed of ratification (i.e. nos. 1 and 2 of those proposed) prescribed the ratio of representation to population in the House, and specified that no law varying the compensation of members of Congress should be effective until after an intervening election of Representatives. The first was ratified by 10 States (1 short of the requisite number) and the second by 6 States [2 Doc. Hist. Const., 325-390]. [c] The 11th Amendment was proposed by Congress on March 4, 1794, when it passed the House [4 Ann. Cong. (3d Cong., 1st sess.) 477, 478], having previously passed the Senate on January 14 [_Id._, 30, 31]. It appears officially in 1 Stat. 402. Ratification was completed on February 7, 1795, when the twelfth State (North Carolina) approved the amendment, there being then 15 States in the Union. Official announcement of ratification was not made until January 8, 1798, when President John Adams in a message to Congress stated that the 11th Amendment had been adopted by three-fourths of the States and that it "may now be deemed to be a part of the Constitution" [1 Mess. and Papers of Pres. 250]. In the interim South Carolina had ratified, and Tennessee had been admitted into the Union as the Sixteenth State. The several State legislatures ratified the 11th Amendment on the following dates: New York, March 27, 1794; Rhode Island, March 31, 1794; Connecticut, May 8, 1794; New Hampshire, June 16, 1794; Massachusetts, June 26, 1794; Vermont, between October 9 and November 9, 1794; Virginia, November 18, 1794; Georgia, November 29, 1794; Kentucky, December 7, 1794; Maryland, December 26, 1794; Delaware, January 23, 1795; North Carolina, February 7, 1795; South Carolina, December 4, 1797 [State Department, Press Releases, vol. XII, p. 247 (1935)]. [d] The 12th Amendment was proposed by Congress on December 9, 1803, when it passed the House [13 Ann. Cong. (8th Cong., 1st sess.) 775, 776], having previously passed the Senate on December 2 [_Id._, 209]. It was not signed by the presiding officers of the House and Senate until December 12. It appears officially in 2 Stat. 306. Ratification was probably completed on June 15, 1804, when the legislature of the thirteenth State (New Hampshire) approved the amendment, there being then 17 States in the Union. The Governor of New Hampshire, however, vetoed this act of the legislature on June 20, and the act failed to pass again by two-thirds vote then required by the State constitution. Inasmuch as art. V of the Federal Constitution specifies that amendments shall become effective "when ratified by the legislatures of three-fourths of the several States or by conventions in three-fourths thereof," it has been generally believed that an approval or veto by a governor is without significance. If the ratification by New Hampshire be deemed ineffective, then the amendment became operative by Tennessee's ratification on July 27, 1804. On September 25, 1804, in a circular letter to the Governors of the several States, Secretary of State Madison declared the amendment ratified by three-fourths of the States. The several State legislatures ratified the 12th Amendment on the following dates: North Carolina, December 22, 1803; Maryland, December 24, 1803; Kentucky, December 27, 1803; Ohio, between December 5 and December 30, 1803; Virginia, between December 20, 1803 and February 3, 1804; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New York, February 10, 1804; New Jersey, February 22, 1804; Rhode Island, between February 27 and March 12, 1804; South Carolina, May 15, 1804; Georgia, May 19, 1804; New Hampshire, June 15, 1804; and Tennessee, July 27, 1804. The amendment was rejected by Delaware on January 18, 1804, and by Connecticut at its session begun May 10, 1804. [e] The 13th Amendment was proposed by Congress on January 31, 1865, when it passed the House [Cong. Globe (38th Cong., 2d sess.) 531], having previously passed the Senate on April 8, 1864 [_Id._ (38th Cong., 1st sess.) 1490]. It appears officially in 13 Stat. 567 under the date of February 1, 1865. Ratification was completed on December 6, 1865, when the legislature of the twenty-seventh State (Georgia) approved the amendment, there being then 36 States in the Union. On December 18, 1865, Secretary of State Seward certified that the 13th Amendment had become a part of the Constitution [13 Stat. 774]. The several State legislatures ratified the 13th Amendment on the following dates: Illinois, February 1, 1865; Rhode Island, February, 2, 1865; Michigan, February 2, 1865; Maryland, February 3, 1865; New York, February 3, 1865; West Virginia, February 3, 1865; Missouri, February 6, 1865; Maine, February 7, 1865; Kansas, February 7, 1865; Massachusetts, February 7, 1865; Pennsylvania, February 8, 1865; Virginia, February 9, 1865; Ohio, February 10, 1865; Louisiana, February 15 or 16, 1865; Indiana, February 16, 1865; Nevada, February 16, 1865; Minnesota, February 23, 1865; Wisconsin, February 24, 1865; Vermont, March 9, 1865 (date on which it was "approved" by Governor); Tennessee, April 7, 1865; Arkansas, April 14, 1865; Connecticut, May 4, 1865; New Hampshire, June 30, 1865; South Carolina, November 13, 1865; Alabama, December 2, 1865 (date on which it was "approved" by Provisional Governor); North Carolina, December 4, 1865; Georgia, December 6, 1865; Oregon, December 11, 1865; California, December 15, 1865; Florida, December 28, 1865 (Florida again ratified this amendment on June 9, 1868, upon its adoption of a new constitution); Iowa, January 17, 1866; New Jersey, January 23, 1866 (after having rejected the amendment on March 16, 1865); Texas, February 18, 1870; Delaware, February 12, 1901 (after having rejected the amendment on February 8, 1865). The amendment was rejected by Kentucky on February 24, 1865, and by Mississippi on December 2, 1865. "A thirteenth amendment depriving of United States citizenship any citizen who should accept any title, office, or emolument from a foreign power, was proposed by Congress on May 1, 1810, when it passed the House [21 Ann. Cong. (11th Cong., 2d sess.) 2050], having previously passed the Senate on April 27 [20 Ann. Cong. (11th Cong., 2d sess.) 672]. It appears officially in 2 Stat. 613. It failed of adoption, being ratified by but 12 States up to December 10, 1812 [2 Miscell. Amer. State Papers, 477-479; 2 Doc. Hist. Const. 454-499], there then being 18 in all. "Another thirteenth amendment, forbidding any future amendment that should empower Congress to interfere with the domestic institutions of any State, was proposed by Congress on March 2, 1861, when it passed the Senate [Cong. Globe (36th Cong., 2d sess.) 1403], having previously passed the House on February 28 [_Id._, 1285]. It appears officially in 12 Stat. 251. It failed of adoption, being ratified by but three States: Ohio, May 13, 1861 [58 Laws Ohio, 190]; Maryland, January 10, 1862 [Laws Maryland (1861-62) 21]; Illinois, February 14, 1862 [2 Doc. Hist. Const., 518] irregular, because by convention instead of by legislation as authorized by Congress." [Burdick, The Law of the American Constitution, 637.] [f] The 14th Amendment was proposed by Congress on June 13, 1866, when it passed the House [Cong. Globe (39th Cong., 1st sess.) 3148, 3149], having previously passed the Senate on June 8 [_Id._, 3042]. It appears officially in 14 Stat. 358 under date of June 16, 1866. Ratification was probably completed on July 9, 1868, when the legislature of the twenty-eighth State (South Carolina or Louisiana) approved the amendment, there being then 37 States in the Union. However, Ohio and New Jersey had prior to that date "withdrawn" their earlier assent to this amendment. Accordingly, Secretary of State Seward on July 20, 1868, certified that the amendment had become a part of the Constitution if the said withdrawals were ineffective [15 Stat. 706-707]. Congress at once (July 21, 1868) passed a joint resolution declaring the amendment a part of the Constitution and directing the Secretary to promulgate it as such. On July 28, 1868, Secretary Seward certified without reservation that the amendment was a part of the Constitution. In the interim, two other States, Alabama on July 13 and Georgia on July 21, 1868, had added their ratifications. The several State legislatures ratified the 14th Amendment on the following dates: Connecticut, June 30, 1866; New Hampshire, July 7, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (the New Jersey Legislature on February 20, 1868 "withdrew" its consent to the ratification; the Governor vetoed that bill on March 5, 1868; and it was repassed over his veto on March 24, 1868); Oregon, September 19, 1866 (Oregon "withdrew" its consent on October 15, 1868); Vermont, October 30, 1866; New York, January 10, 1867; Ohio, January 11, 1867 (Ohio "withdrew" its consent on January 15, 1868); Illinois, January 15, 1867; West Virginia, January 16, 1867; Michigan, January 16, 1867; Kansas, January 17, 1867; Minnesota, January 17, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January 26, 1867 (date on which it was certified by the Missouri secretary of state); Rhode Island, February 7, 1867; Pennsylvania, February 12, 1867; Wisconsin, February 13, 1867 (actually passed February 7, but not signed by legislative officers until February 13); Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, March 9, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; North Carolina, July 2, 1868 (after having rejected the amendment on December 13, 1866); Louisiana, July 9, 1868 (after having rejected the amendment on February 6, 1867); South Carolina, July 8, 1868; (after having rejected the amendment on December 20, 1866); Alabama, July 13, 1868 (date on which it was "approved" by the Governor); Georgia, July 21, 1868 (after having rejected the amendment on November 9, 1866--Georgia ratified again on February 2, 1870); Virginia, October 8, 1869 (after having rejected the amendment on January 9, 1867); Mississippi, January 17, 1870; Texas, February 18, 1870 (after having rejected the amendment on October 27, 1866); Delaware, February 12, 1901 (after having rejected the amendment on February 7, 1867). The amendment was rejected (and not subsequently ratified) by Kentucky on January 8, 1807, and by Maryland on March 23, 1867. [g] The 15th Amendment was proposed by Congress on February 26, 1869, when it passed the Senate [Cong. Globe (40th Cong., 3rd sess.) 1641], having previously passed the House on February 25 [_Id._ 1563, 1564]. It appears officially in 15 Stat. 346 under date of February 27, 1869. Ratification was probably completed on February 3, 1870, when the legislature of the twenty-eighth State (Iowa) approved the amendment, there being then 37 States in the Union. However, New York had prior to that date "withdrawn" its earlier assent to this amendment. Even if this withdrawal were effective, Nebraska's ratification on February 17, 1870, authorized Secretary of State Fish's certification of March 30, 1870, that the 15th Amendment had become a part of the Constitution [16 Stat 1131]. The several State legislatures ratified the 15th Amendment on the following dates: Nevada, March 1, 1869; West Virginia, March 3, 1869; North Carolina, March 5, 1869; Louisiana, March 5, 1869 (date on which it was "approved" by the Governor); Illinois March 5, 1869; Michigan, March 5, 1869; Wisconsin, March 5, 1869; Maine, March 11, 1869; Massachusetts, March 12, 1869; South Carolina, March 15, 1869; Arkansas, March 15, 1869; Pennsylvania, March 25, 1869; New York, April 14, 1869 (New York "withdrew" its consent to the ratification on January 5, 1870); Indiana, May 14, 1869; Connecticut, May 19, 1869; Florida, June 14, 1869; New Hampshire, July 1, 1869; Virginia, October 8, 1869; Vermont, October 20, 1869; Alabama, November 16, 1869; Missouri, January 7, 1870 (Missouri had ratified the first section of the 15th Amendment on March 1, 1869; it failed to include in its ratification the second section of the amendment); Minnesota, January 13, 1870; Mississippi, January 17, 1870; Rhode Island, January 18, 1870; Kansas, January 19, 1870 (Kansas had by a defectively worded resolution previously ratified this amendment on February 27, 1869); Ohio, January 27, 1870 (after having rejected the amendment on May 4, 1869); Georgia, February 2, 1870; Iowa, February 3, 1870; Nebraska, February 17, 1870; Texas, February 18, 1870; New Jersey, February 15, 1871 (after having rejected the amendment on February 7, 1870); Delaware, February 12, 1901 (date on which approved by Governor; Delaware had previously rejected the amendment on March 18, 1869). The amendment was rejected (and not subsequently ratified) by California, Kentucky, Maryland, Oregon, and Tennessee. [h] The 16th Amendment was proposed by Congress on July 12, 1909, when it passed the House [44 Cong. Rec. (61st Cong., 1st sess.) 4390, 4440, 4441], having previously passed the Senate on July 5 [_Id._, 4121]. It appears officially in 36 Stat 184. Ratification was completed on February 3, 1913, when the legislature of the thirty-sixth State (Delaware, Wyoming, or New Mexico) approved the amendment, there being then 48 States in the Union. On February 25, 1913, Secretary of State Knox certified that this amendment had become a part of the Constitution [37 Stat. 1785]. The several State legislatures ratified the 16th Amendment on the following dates: Alabama, August 10, 1909; Kentucky, February 8, 1910; South Carolina, February 19, 1910; Illinois, March 1, 1910; Mississippi, March 7, 1910; Oklahoma, March 10, 1910; Maryland, April 8, 1910; Georgia, August 3, 1910; Texas, August 16, 1910; Ohio, January 19, 1911; Idaho, January 20, 1911; Oregon, January 23, 1911; Washington, January 26, 1911; Montana, January 27, 1911; Indiana, January 30, 1911; California, January 31, 1911; Nevada, January 31, 1911; South Dakota, February 1, 1911; Nebraska, February 9, 1911; North Carolina, February 11, 1911; Colorado, February 15, 1911; North Dakota, February 17, 1911; Michigan, February 23, 1911; Iowa, February 24, 1911; Kansas, March 2, 1911; Missouri, March 16, 1911; Maine, March 31, 1911; Tennessee, April 7, 1911; Arkansas, April 22, 1911 (after having rejected the amendment at the session begun January 9, 1911); Wisconsin, May 16, 1911; New York, July 12, 1911; Arizona, April 3, 1912; Minnesota, June 11, 1912; Louisiana, June 28, 1912; West Virginia, January 31, 1913; Delaware, February 3, 1913; Wyoming, February 3, 1913; New Mexico, February 3, 1913; New Jersey, February 4, 1913; Vermont, February 19, 1913; Massachusetts, March 4, 1913; New Hampshire, March 7, 1913 (after having rejected the amendment on March 2, 1911). The amendment was rejected (and not subsequently ratified) by Connecticut, Rhode Island, and Utah. [i] The 17th Amendment was proposed by Congress on May 13, 1912, when it passed the House [48 Cong. Rec. (62d Cong., 2d sess.) 6367], having previously passed the Senate on June 12, 1911 [47 Cong. Rec. (62d Cong. 1st sess.) 1925]. It appears officially in 37 Stat. 646. Ratification was completed on April 8, 1913, when the thirty-sixth State (Connecticut) approved the amendment, there being then 48 States in the Union. On May 31, 1913, Secretary of State Bryan certified that it had become a part of the Constitution [38 Stat. 2049]. The several State legislatures ratified the 17th Amendment on the following dates: Massachusetts, May 22, 1912; Arizona, June 3, 1912; Minnesota, June 10, 1912; New York, January 15, 1913; Kansas, January 17, 1913; Oregon, January 23, 1913; North Carolina, January 25, 1913; California, January 28, 1913; Michigan, January 28, 1913; Iowa, January 30, 1913; Montana, January 30, 1913; Idaho, January 31, 1913; West Virginia, February 4, 1913; Colorado, February 5, 1913; Nevada, February 6, 1913; Texas, February 7, 1913; Washington, February 7, 1913; Wyoming, February 8, 1913; Arkansas, February 11, 1913; Illinois, February 13, 1913; North Dakota, February 14, 1913; Wisconsin, February 18, 1913; Indiana, February 19, 1913; New Hampshire, February 19, 1913; Vermont, February 19, 1913; South Dakota, February 19, 1913; Maine, February 20, 1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; Missouri, March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 1913; New Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania, April 2, 1913; Connecticut, April 8, 1913; Louisiana, June 5, 1914. The amendment was rejected by Utah on February 26, 1913. [j] The 18th Amendment was proposed by Congress on December 18, 1917, when it passed the Senate [Cong. Rec. (65th Cong., 2d sess.) 478], having previously passed the House on December 17 [_Id._, 470]. It appears officially in 40 Stat 1050. Ratification was completed on January 16, 1919, when the thirty-sixth State approved the amendment, there being then 48 States in the Union. On January 29, 1919, Acting Secretary of State Polk certified that this amendment had been adopted by the requisite number of States [40 Stat. 1941]. By its terms this amendment did not became effective until 1 year after ratification. The several State legislatures ratified the 18th Amendment on the following dates: Mississippi, January 8, 1918; Virginia, January 11, 1918; Kentucky, January 14, 1918; North Dakota, January 28, 1918 (date on which approved by Governor); South Carolina, January 29, 1918; Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March 4, 1918; Delaware, March 18, 1918; South Dakota, March 20, 1918; Massachusetts, April 2, 1918; Arizona, May 24, 1918; Georgia, June 26, 1918; Louisiana, August 9, 1918 (date on which approved by Governor); Florida, November 27, 1918; Michigan, January 2, 1919; Ohio, January 7, 1919; Oklahoma, January 7, 1919; Idaho, January 8, 1919; Maine, January 8, 1919; West Virginia, January 13, 1919; California, January 13, 1919; Tennessee, January 13, 1919; Washington, January 13, 1919; Arkansas, January 14, 1919; Kansas, January 14, 1919; Illinois, January 14, 1919; Indiana, January 14, 1919; Alabama, January 15, 1919; Colorado, January 15, 1919; Iowa, January 15, 1919; New Hampshire, January 15, 1919; Oregon, January 15, 1919; Nebraska, January 16, 1919; North Carolina, January 16, 1919; Utah, January 16, 1919; Missouri, January 16, 1919; Wyoming, January 16, 1919; Minnesota, January 17, 1919; Wisconsin, January 17, 1919; New Mexico, January 20, 1919; Nevada, January 21, 1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; New Jersey, March 9, 1922; New York, January 29, 1919; Vermont, January 29, 1919. [k] The 19th Amendment was proposed by Congress on June 4, 1919, when it passed the Senate [Cong. Rec. (66th Cong., 1st sess.) 635], having previously passed the House on May 21, [_Id._, 94]. It appears officially in 41 Stat. 362. Ratification was completed on August 18, 1920, when the thirty-sixth State (Tennessee) approved the amendment, there being then 48 States in the Union. On August 26, 1920, Secretary of State Colby certified that it had become a part of the Constitution [41 Stat. 1823]. The several State legislatures ratified the 19th Amendment on the following dates: Illinois, June 10, 1919 (readopted June 17, 1919); Michigan, June 10, 1919; Wisconsin, June 10, 1919; Kansas, June 16, 1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania, June 24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July 2, 1919 (date on which approved by Governor); Missouri, July 3, 1919; Arkansas, July 28, 1919; Montana, August 2, 1919 (date on which approved by Governor); Nebraska, August 2, 1919; Minnesota, September 8, 1919; New Hampshire, September 10, 1919 (date on which approved by Governor); Utah, October 2, 1919; California, November 1, 1919; Maine, November 5, 1919; North Dakota, December 1, 1919; South Dakota, December 4, 1919 (date on which certified); Colorado, December 15, 1919 (date on which approved by Governor); Kentucky, January 6, 1920; Rhode Island, January 6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming, January 27, 1920; Nevada, February 7, 1920; New Jersey, February 9, 1920; Idaho, February 11, 1920; Arizona, February 12, 1920; New Mexico, February 21, 1920 (date on which approved by Governor); Oklahoma, February 28, 1920; West Virginia, March 10, 1920; Washington, March 22, 1920; Tennessee, August 18, 1920; Connecticut, September 14, 1920 (confirmed September 21, 1920); Vermont, February 8, 1921. The amendment was rejected by Georgia on July 24, 1919; by Alabama on September 22, 1919; by South Carolina on January 29, 1920; by Virginia on February 12, 1920; by Maryland on February 24, 1920; by Mississippi on March 29, 1920; by Louisiana on July 1, 1920. [l] The 20th Amendment was proposed by Congress on March 2, 1932, when it passed the Senate [Cong. Rec. (72d Cong., 1st sess.) 5086], having previously passed the House on March 1 [_Id._, 5027]. It appears officially in 47 Stat. 745. Ratification was completed on January 23, 1933, when the thirty-sixth State approved the amendment, there being then 48 States in the Union. On February 6, 1933, Secretary of State Stimson certified that it had become a part of the Constitution [47 Stat. 2569]. The several State legislatures ratified the 20th Amendment on the following dates: Virginia, March 4, 1932; New York, March 11, 1932; Mississippi, March 16, 1932; Arkansas, March 17, 1932; Kentucky, March 17, 1932; New Jersey, March 21, 1932; South Carolina, March 25, 1932; Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14, 1932; Illinois, April 21, 1932; Louisiana, June 22, 1932; West Virginia, July 30, 1932; Pennsylvania, August 11, 1932; Indiana, August 15, 1932; Texas, September 7, 1932; Alabama, September 13, 1932; California, January 4, 1933; North Carolina, January 5, 1933; North Dakota, January 9, 1933; Minnesota, January 12, 1933; Arizona, January 13, 1933; Montana, January 13, 1933; Nebraska, January 13, 1933; Oklahoma, January 13, 1933; Kansas, January 16, 1933; Oregon, January 16, 1933; Delaware, January 19, 1933; Washington, January 19, 1933; Wyoming, January 19, 1933; Iowa, January 20, 1933; South Dakota, January 20, 1933; Tennessee, January 20, 1933; Idaho, January 21, 1933; New Mexico, January 21, 1933; Georgia, January 23, 1933; Missouri, January 23, 1933; Ohio, January 23, 1933; Utah, January 23, 1933; Colorado, January 24, 1933; Massachusetts, January 24, 1933; Wisconsin, January 24, 1933; Nevada, January 26, 1933; Connecticut, January 27, 1933; New Hampshire, January 31, 1933; Vermont, February 2, 1933; Maryland, March 24, 1933; Florida, April 26, 1933. A proposed amendment which would authorize Congress to limit, regulate, and prohibit the labor of persons under 18 years of age was passed by Congress on June 2, 1924. This proposal at the time it was submitted to the States was referred to as "the proposed 20th Amendment." It appears officially in 43 Stat. 670. The status of this proposed amendment is a matter of conflicting opinion. The Kentucky Court of Appeals in Wise _v._ Chandler (270 Ky. 1 [1937]) has held that it is no longer open to ratification because: (1) Rejected by more than one-fourth of the States; (2) a State may not reject and then subsequently ratify, at least when more than one-fourth of the States are on record as rejecting; and (3) more than a reasonable time has elapsed since it was submitted to the States in 1924. The Kansas Supreme Court in Coleman _v._ Miller (146 Kan. 390 [1937]) came to the opposite conclusion. On October 1, 1937, 27 States had ratified the proposed amendment. Of these States 10 had previously rejected the amendment on one or more occasions. At least 26 different States have at one time rejected the amendment. [m] The 21st Amendment was proposed by Congress on February 20, 1933, when it passed the House [Cong. Rec. (72d Cong., 2d sess.) 4516], having previously passed the Senate on February 16 [_Id._, 4231]. It appears officially in 47 Stat. 1625. Ratification was completed on December 5, 1933, when the thirty-sixth State (Utah) approved the amendment, there being then 48 States in the Union. On December 5, 1933, Acting Secretary of State Phillips certified that it had been adopted by the requisite number of States [48 Stat. 1749]. The several State conventions ratified the 21st Amendment on the following dates: Michigan, April 10, 1933; Wisconsin, April 25, 1933; Rhode Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1, 1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massachusetts, June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa, July 10, 1933; Connecticut, July 11, 1933; New Hampshire, July 11, 1933; California, July 24, 1933; West Virginia, July 25, 1933; Arkansas, August 1, 1933; Oregon, August 7, 1933; Alabama, August 8, 1933; Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona, September 5, 1933; Nevada, September 5, 1933; Vermont, September 23, 1933; Colorado, September 26, 1933; Washington, October 3, 1933; Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, October 18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1933; Florida, November 14, 1933; Texas, November 24, 1933; Kentucky, November 27, 1933; Ohio, December 5, 1933; Pennsylvania, December 5, 1933; Utah, December 5, 1933; Maine, December 6, 1933; Montana, August 6, 1934. The amendment was rejected by a convention in the State of South Carolina, on December 4, 1933. The electorate of the State of North Carolina voted against holding a convention at a general election held on November 7, 1933. [n] The twenty-second Amendment was proposed by Congress on March 24, 1947, having passed the House on March 21, 1947 [Cong. Rec. (80th Cong., 1st sess.) 2392] and having previously passed the Senate on March 12, 1947 [Id. 1978]. It appears officially in 61 Stat. 959. Ratification was completed on February 27, 1951, when the thirty-sixth State (Minnesota) approved the amendment; there being then 48 States in the Union. On March 1, 1951, Jess Larson, Administrator of General Services, certified that it had been adopted by the requisite number of States [16 F.R. 2019]. A total of 41 State legislatures ratified the Twenty-second Amendment on the following dates: Maine, March 31, 1947; Michigan, March 31, 1947; Iowa, April 1, 1947; Kansas, April 1, 1947; New Hampshire, April 1, 1947; Delaware, April 2, 1947; Illinois, April 3, 1947; Oregon, April 3, 1947; Colorado, April 12, 1947; California, April 15, 1947; New Jersey, April 15, 1947; Vermont, April 15, 1947; Ohio, April 16, 1947; Wisconsin; April 16, 1947; Pennsylvania, April 29, 1947; Connecticut, May 21, 1947; Missouri, May 22, 1947; Nebraska, May 23, 1947; Virginia, January 28, 1948; Mississippi, February 12, 1948; New York, March 9, 1948; South Dakota, January 21, 1949; North Dakota, February 25, 1949; Louisiana, May 17, 1950; Montana, January 25, 1951; Indiana, January 29, 1951; Idaho, January 30, 1951; New Mexico, February 12, 1951; Wyoming, February 12, 1951; Arkansas, February 15, 1951; Georgia, February 17, 1951; Tennessee, February 20, 1951; Texas, February 22, 1951; Utah, February 26, 1951; Nevada, February 26, 1951; Minnesota, February 27, 1951; North Carolina, February 28, 1951; South Carolina, March 13, 1951; Maryland, March 14, 1951; Florida, April 16, 1951; and Alabama, May 4, 1951. THE CONSTITUTION OF THE UNITED STATES OF AMERICA WITH ANNOTATIONS PREAMBLE The Preamble: Page Purpose and effect 59 "The people of the United States" 59 THE CONSTITUTION OF THE UNITED STATES OF AMERICA WITH ANNOTATIONS The Preamble We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Purpose and Effect of the Preamble Although the preamble is not a source of power for any department of the Federal Government,[1] the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. "Its true office" wrote Joseph Story in his Commentaries, "is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?"[2] Moreover, the preamble bears witness to the fact that the Constitution emanated from the people, and was not the act of sovereign and independent States,[3] and that it was made for, and is binding only in, the United States of America.[4] In the Dred Scott case,[5] Chief Justice Taney declared that: "The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty."[6] Notes [1] Jacobson _v._ Massachusetts, 197 U.S. 11, 22 (1905). [2] 1 Story, Commentaries on the Constitution, § 462. [3] McCulloch _v._ Maryland, 4 Wheat. 316, 403 (1819); Chisholm _v._ Georgia, 2 Dall. 419, 470 (1793); Martin _v._ Hunter, Wheat. 304, 324 (1816). [4] Downes _v._ Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S. 453, 464 (1891). [5] 19 How. 393 (1857). [6] Ibid. 404. ARTICLE I LEGISLATIVE DEPARTMENT Section 1. Nature of legislative power: Page Doctrine of enumerated powers 71 Nondelegability of legislative power 73 Origin of doctrine 73 Functions which may be delegated 74 Power to supplement statutory provisions 74 Standards for administrative action 75 Rule-making power 76 Orders directed to particular persons 77 Delegation to private persons 78 Power to give effect to contingent legislation 79 Modification of tariff laws 79 Arms embargo 80 Internal affairs 80 Emergency statutes 81 Punishment of violations 82 Congressional investigations 82 Investigations in aid of legislation 82 Conduct of executive department 82 Private affairs 83 Purpose of inquiry 84 Judicial functions 85 Sanctions of the investigatory power 85 Contempt 85 Criminal prosecutions 85 Sections 2 and 3. House of Representatives and Senate: Qualifications of Members of Congress 87 Right to vote for Representatives and Congressional protection thereof 87 When the qualifications must be possessed 88 Enlargement of qualifications 88 Inability of States to enlarge 89 Census requirement 90 Section 4. Elections and meetings: Federal legislation under this clause 92 Legislature defined 93 Inequality of election districts 93 Congressional protection of the electoral process 94 Section 5. Powers and duties of the houses: Power to judge elections 95 Quorum to do business 96 Rules of procedure 96 Powers of the houses over members 97 Duty to keep a journal 98 Section 6. Compensation, immunities, and disabilities of Members: When the pay starts 99 Privilege from arrest 99 Privilege of speech or debate 99 Incompatible offices 101 Section 7. Legislative process: Revenue bills 102 Approval by the President 103 Veto power 103 Presentation of resolutions 104 Section 8. Powers of Congress: Clause 1. Taxing-spending power 105 Kinds of taxes permitted 105 Decline of forbidden subject matter test 105 Rise and fall of Collector _v._ Day 106 Federal taxation of State interests 106 Immunity left to the States 108 Conflicting views on the court 108 Rule of uniformity 109 Purposes of taxation 110 Regulation by taxation 110 Extermination by taxation 110 Protective tariff 112 Spending for the general welfare 112 Hamilton _v._ Madison 113 Triumph of Hamiltonian theory 113 Security Act Cases, The 115 Earmarked funds 116 Conditional grants-in-aid 116 "Debts of the United States" 116 Clause 2. Borrowing power 117 Clause 3. Power to regulate interstate and foreign commerce 118 Purpose of the clause 118 Definition of terms: Gibbons _v._ Ogden 118 "Commerce" 118 "Commerce" today 119 "Necessary and proper" clause 121 "Among the several States" 121 "Regulate" 123 Interstate versus foreign commerce 123 Instruments of commerce 125 Congressional regulation of waterways 126 Navigation 126 Hydroelectric power 130 Congress' jurisdiction over navigable streams today 131 Purposes for which power may be generated 131 Congressional regulation of land transportation 132 Early Acts: Federal provision for highways 132 Beginnings of federal railway regulation 132 Regulation of rates: Interstate Commerce Commission 133 Interstate Commerce Commission today 135 Shreveport Case 135 Act of 1920 and State railway rate regulation 136 Regulation of other agents of carriage and communication 137 Acts of Congress protective of labor engaged in interstate transportation 139 Adair Case 141 Railroad Retirement Act 142 Bills of Lading: Ferger Case 143 Congressional regulation of commerce as traffic 144 Sherman Act: Sugar Trust Case 144 Sherman Act revised 146 "Current of commerce" concept: Swift Case 147 Danbury Hatters Case 149 Stockyards and Grain Futures Acts 149 Securities and Exchange Commission 150 Congressional regulation of production and industrial relations 152 Antidepression legislation 152 National Industrial Recovery Act 152 Schechter Case 152 Agricultural Adjustment Act 153 Bituminous Coal Conservation Act 153 National Labor Relations Act 154 Fair Labor Standards Act: Darby Case 155 Agricultural Marketing Agreement Act 159 Acts of Congress prohibiting commerce 160 Foreign commerce; Jefferson's embargo 160 Foreign commerce; protective tariffs 162 Foreign commerce; banned articles 162 Interstate commerce; conflict of doctrine and opinion 163 Acts of Congress prohibitive of commerce 168 Lottery Case 169 National prohibitions and State police power 169 Hammer _v._ Dagenhart 170 Interstate commerce in stolen goods banned 171 Darby Case 172 Congress and the federal system 173 Commerce clause as a restraint on State power 173 Doctrinal background 173 Doctrinal background: Webster's contribution 175 Cooley _v._ Board of Port Wardens 175 Judicial formulas 176 Taxing power of the State and foreign commerce 177 Browne _v._ Maryland: Original package doctrine 177 State taxation of the subject matter of interstate commerce 178 General considerations 178 State Freight Tax Case 179 Goods in transit 180 State taxation of manufacturing and mining 181 Production for an established market 182 Rejection of original package concept in interstate commerce 182 Inspection charges 183 Local sales: Peddlers 184 Stoppage in transit 185 Drummer Cases; Robbins _v._ Shelby County Taxing District 186 Limitation of the Robbins Case 187 Robbins Case today 189 Depression Cases: Use taxes 189 Depression Cases: Sales taxes 190 End of the Depression Cases 191 Taxation of carriage of persons 192 State taxation of the interstate commerce privilege: Foreign Corporations 193 Doctrinal history 193 License taxes 194 Doctrine of Western Union Telegraph _v._ Kansas 196 Spread of the doctrine 196 Status of the doctrine today 197 State taxation of property engaged in, and of the proceeds from, interstate commerce 198 General issue 198 Development of the apportionment rule 199 Unit rule 200 Apportioned property taxes 201 Apportioned gross receipts taxes 202 Franchise taxes 202 Gross receipts taxes, classes of 203 Multiple taxation test 204 Recent cases 206 Taxes on net income 208 Miscellaneous taxes affecting interstate commerce 209 Vessels 209 Airplanes 210 Motor vehicles 211 Public utilities: Regulatory charges 213 Dominance of Congress 214 McCarran Act: Regulation of insurance 214 Police power and foreign commerce 215 Origin of police power 215 State curbs on entry of foreigners 216 State quarantine laws 217 State game protection and foreign commerce 217 Police power and interstate commerce 217 General principles 217 State regulation of agencies of interstate commerce 220 Railway rate regulation 220 Adequate service regulations 221 Safety and other regulations 221 Invalid State regulations 222 State regulation of length of trains 223 Lesson of Southern Pacific Co. _v._ Arizona 225 State regulation of motor vehicles: Valid regulations 226 Invalid State acts affecting motor carriers 227 Transportation agencies 228 Navigation; general doctrine 228 Bridges, dams, ferries, wharves 230 Ferries 231 Telegraphs and telephones 231 Gas and electricity 233 Foreign corporations 234 Miscellaneous 234 Banks and banking 234 Brokers 235 Commission men 235 Attachment and garnishment 235 Statutory liens 235 Police power and the subject matter of commerce 235 Scope of the police power 235 Quarantine laws 236 State inspection laws 237 State prohibition laws: The original package doctrine 238 Oleomargarine and cigarettes 239 Demise of the original package doctrine 240 Curbs on the interstate movement of persons 241 State conservation and embargo measures 242 State conservation and embargo measures: The Milk Cases 244 State conservation and embargo measures: The Shrimp Cases 245 Concurrent federal and State legislation 246 General issue 246 Hepburn Act 246 Quarantine Cases 248 Recent cases sustaining State legislation 249 Recent cases nullifying State action 250 Federal versus State labor laws 251 Commerce with Indian Tribes 252 United States _v._ Kagama 252 Clause 4. Naturalization and bankruptcies 254 Naturalization and citizenship 254 Categories of naturalized persons 254 Who are eligible for naturalization 255 Procedure of naturalization 256 Rights of naturalized persons 257 Congress' power exclusive 258 Right of expatriation: Loss of citizenship 258 Exclusion of aliens 259 Bankruptcy 262 Persons who may be released from debt 262 Liberalization of relief granted 262 Constitutional limitations on the bankruptcy power 263 Power not exclusive 264 Constitutional status of State insolvency laws 264 Clauses 5 and 6. Fiscal and monetary powers of Congress 265 Coinage, weights, and measures 265 Punishment of counterfeiting 266 Borrowing power versus the fiscal power 266 Clause 7. Postal power 267 "Establish" 267 Powers to protect the mails 268 Antislavery and the mails 268 Power to prevent harmful use of the postal facilities 268 Exclusion power as an adjunct to other powers 269 State regulations affecting the mails 270 Clause 8. Copyrights and Patents 271 Scope of the power 271 Patentable discoveries 271 Procedure in issuing patents 274 Nature and scope of the right secured 274 Power of Congress over patent rights 275 State power affecting patents and copyrights 276 Trade-marks and advertisements 276 Clause 9. _See_ article III 277 Clause 10. Piracies and felonies 277 Origin of the clause 277 Definition of offenses 277 Extraterritorial reach of the power 278 Clauses 11, 12, 13, and 14. War: Military establishments 279 War power 279 Source and scope 279 An inherent power 280 A complexus of granted powers 281 Declaration of war: When required 281 Prize Cases, The, (1863) 282 Power to raise and maintain armed forces 283 Purpose of specific grants 283 Time limit on appropriations for the army 283 Establishment of the air force 284 Conscription 284 Care of the armed forces 285 Trial and punishment of offenses 285 War legislation 286 Revolutionary war legislation 286 Civil War legislation 287 World War I legislation 287 World War II legislation 288 Mobilization of industrial resources 288 Delegation of legislative power in wartime 289 Mergence of legislative and executive in wartime 290 Doctrine of Lichter _v._ United States 290 War powers in time of peace 291 Atomic Energy Act 292 Postwar legislation 292 Private rights in wartime 293 Enemy country 293 Theatre of military operations 294 Enemy property 294 Prizes of war 295 Police regulations: Rent control 296 Personal liberty in wartime 297 Alien enemies 297 Eminent domain 298 Clauses 15 and 16. Militia 299 Militia clauses 299 Calling out the militia 299 Regulation of the militia 299 Clause 17. Seat of government, etc. 300 Seat of government 300 Nature and extent of rights ceded to United States 301 Retrocession of Alexandria county 301 Continuance of State laws 302 Status of the district today 302 Legislative power over the district 303 Taxation in the district 303 Delegation of legislative power to municipal officers 304 Courts of the district 304 Authority over places purchased 305 "Places" 305 Duration of federal jurisdiction 305 Reservation of jurisdiction by States 306 Clause 18. "Necessary and proper" clause 307 Coefficient or elastic clause 307 Scope of incidental powers 307 Operation of coefficient clause 308 Definition and punishment of crimes 308 Chartering of banks 309 Currency regulations 309 Power to charter corporations 310 Courts and judicial proceedings 310 Special acts concerning claims 311 Maritime law 311 Section 9. Powers denied to Congress 312 General purpose of the section 312 Clause 1. Importation of slaves 312 Clause 2. Suspension of the privilege of the writ of habeas corpus 312 Habeas corpus 312 Purpose of the writ 312 Errors which may be corrected on habeas corpus 313 Habeas corpus not a substitute for appeal 314 Issuance of the writ 314 Suspension of the privilege 315 Clause 3. Attainder and ex post facto laws 315 Bills of attainder 315 Ex post facto laws 316 Definition 316 What constitutes punishment 317 Changes in place or mode of trial 317 Clause 4. Capitation and direct taxes 317 Direct taxes 317 The Hylton case 317 From the Hylton to the Pollock case 318 Restriction of the Pollock decision 319 Miscellaneous 321 Clause 5. Export duties 321 Taxes on exports 321 Stamp taxes 322 Clause 6. "No preference" clause 322 Clause 7. Appropriations and accounting of public mon 323 Appropriations 323 Payment of claims 324 Clause 8. Titles of nobility and gifts from foreign States 324 Section 10. Powers denied to the States 325 Clause 1. Not to make treaties, coin money, pass ex post facto laws, impair contracts, etc. 325 Treaties, alliances, or confederations 325 Bills of credit 326 Legal tender 326 Bills of attainder 326 Ex post facto laws 327 Scope of provision 327 Denial of future privileges to past offenders 327 Changes in punishment 328 Changes in procedure 328 Obligation of contracts 329 Definition of terms 329 "Law" 329 Status of judicial decisions 329 "Obligation" 332 "Impair" 332 "Contracts," extended to cover public contracts 332 Fletcher _v._ Peck 335 New Jersey _v._ Wilson 336 Corporate charters; Different ways of regarding 336 Dartmouth College case 338 Classes of cases under the clause 339 Public grants 339 Municipal corporations 339 Public offices 340 Revocable privileges versus "contracts": Tax exemptions 341 Vested rights 343 Reservation of the right to alter and repeal 343 Right to reserve: When limited 343 Corporations as persons subject to the law 345 Corporations and the police power 345 Strict construction of public grants 346 Charles River Bridge case 346 Application of the strict construction rule 346 Strict construction of tax exemptions 347 Strict construction and the police power 348 Doctrine of inalienable State powers 349 Eminent domain power inalienable 349 Taxing power not inalienable 350 Police power: When inalienable 351 Private contracts 352 Scope of the term 352 Source of the obligation 352 Ogden _v._ Saunders 353 Remedy a part of the obligation 354 Establishment of the rule 354 Qualifications of the rule 355 Municipal Bond cases 356 Private contracts and the police power 357 Emergency legislation 358 Individual rights versus public welfare 359 Evaluation of the clause today 359 Statistical data pertinent to the clause 361 Clause 2. Not to levy duties on exports and imports 362 Duties on exports and imports 362 Scope 362 Privilege taxes 363 Property taxes 364 Inspection laws 364 Clause 3. Not to lay tonnage duties, keep troops, make compacts, or engage in war 365 Tonnage duties 365 Keeping troops 366 Interstate compacts 366 Background of clause 366 Subject matter of interstate compacts 368 Consent of Congress 368 Grants of franchise to corporation by two States 369 Legal effect of interstate compacts 369 LEGISLATIVE DEPARTMENT Article I Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Doctrine of Enumerated Powers Two important doctrines of Constitutional Law--that the Federal Government is one of enumerated powers and that legislative power may not be delegated--are derived in part from this section. The classical statement of the former is that by Chief Justice Marshall in McCulloch _v._ Maryland: "This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted."[1] That, however, "the executive power" is not confined to the items of it which are enumerated in article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is today the doctrine of the Court;[2] and a similar latitudinarian conception of "the judicial power of the United States" was voiced in Justice Brewer's opinion for the Court in Kansas _v._ Colorado.[3] But even when confined to "the legislative powers herein granted," the doctrine is severely strained by Marshall's conception of some of these as set forth in his McCulloch _v._ Maryland opinion: This asserts that "the sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government";[4] he characterizes "the power of making war," of "levying taxes," and of "regulating commerce" as "great, substantive and independent powers";[5] and the power conferred by the "necessary and proper" clause embraces, he declares, "all [legislative] means which are appropriate" to carry out "the legitimate ends" of the Constitution, unless forbidden by "the letter and spirit of the Constitution."[6] Nine years later, Marshall introduced what Story in his Commentaries labels the concept of "resulting powers," those which "rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated."[7] Story's reference is to Marshall's opinion in American Insurance Company _v._ Canter,[8] where the latter says, that "the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."[9] And from the power to acquire territory, he continues, arises as "the inevitable consequence" the right to govern it.[10] Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds which ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the "rights expressly given, and duties expressly enjoined" by the Constitution;[11] the power to impart to the paper currency of the Government the quality of legal tender in the payment of debts;[12] the power to acquire territory by discovery;[13] the power to legislate for the Indian tribes wherever situated in the United States;[14] the power to exclude and deport aliens;[15] and to require that those who are admitted be registered and fingerprinted;[16] and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. In the words of Justice Sutherland in United States _v._ Curtiss-Wright Export Corporation,[17] decided in 1936: "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers _then possessed by the states_ such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states.... That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source.... A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.... It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality."[18] Yet for the most part, these holdings do not, as Justice Sutherland suggests, directly affect "the internal affairs" of the nation; they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those which have taken place under cover of the doctrine--the vast expansion in recent years of national legislative power in the regulation of commerce among the States and in the expenditure of the national revenues; and verbally at least Marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in McCulloch _v._ Maryland. Nondelegability of Legislative Power ORIGIN OF DOCTRINE At least three distinct ideas have contributed to the development of the principle that legislative power cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of separating the three powers of government if they can straightway remerge on their own motion? The second is the concept of due process of law, which precludes the transfer of regulatory functions to private persons. Lastly, there is the maxim of agency "_Delegata potestas non potest delegari_," which John Locke borrowed and formulated as a dogma of political science.[19] In Hampton Jr. & Co. _v._ United States,[20] Chief Justice Taft offered the following explanation of the origin and limitations of this idea as a postulate of constitutional law: "The well-known maxim '_Delegata potestas non potest delegari_,' applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private law. The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. * * * in carrying out that constitutional division * * * it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination."[21] FUNCTIONS WHICH MAY BE DELEGATED Yielding to "common sense and the inherent necessities of governmental co-ordination" the Court has sustained numerous statutes granting in the total vast powers to administrative or executive agencies. Two different theories, both enunciated during the Chief Justiceship of John Marshall, have been utilized to justify these results. First in importance is the theory that another department may be empowered to "fill up the details" of a statute.[22] The second is that Congress may legislate contingently, leaving to others the task of ascertaining the facts which bring its declared policy into operation.[23] POWER TO SUPPLEMENT STATUTORY PROVISIONS The pioneer case which recognized the right of Congress to lodge in another department the power to "fill up the details" of a statute arose out of the authority given to federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States. Chief Justice Marshall overruled the objection that this constituted an invalid delegation of legislative power, saying: "It will not be contended, that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. * * * The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details."[24] STANDARDS FOR ADMINISTRATIVE ACTION Before another agency can "fill up the details," Congress must enact something to be thus supplemented. In the current idiom, the lawmakers must first adopt a policy or set up an "intelligible standard" to which administrative action must conform.[25] But the Court has taken a generous view of what constitutes a policy or standard. Although it has said that "procedural safeguards cannot validate an unconstitutional delegation,"[26] the nature of the proceedings appears to be one of the elements weighed in determining whether a specific delegation is constitutional.[27] In cases where the delegated power is exercised by orders directed to particular persons after notice and hearing, with findings of fact and of law based upon the record made in the hearing, the Court has ruled that such general terms as "public interest,"[28] "public convenience, interest, or necessity,"[29] or "excessive profits,"[30] were sufficient to satisfy constitutional requirements. But in two cases arising under the National Industrial Recovery Act, a policy declaration of comparable generality was held insufficient for the promulgation of rules applicable to all persons engaged in a designated activity, without the procedural safeguards which surround the issuance of individual orders.[31] By subsequent decisions, somewhat more elaborate, but still very broad, standards have been deemed adequate for various price fixing measures.[32] In a recent case,[33] the Court sustained a statute which, without any explicit standards whatever, authorized the Federal Home Loan Bank Board to make rules and regulations for the supervision of Federal Savings and Loan Associations. That decision was influenced by the fact that the corporation was chartered by federal law as well as by the peculiar problems involved in the supervision of financial institutions. The Court was at pains to make clear that this decision would not necessarily govern the disposition of dissimilar cases.[34] RULE-MAKING POWER After Wayman _v._ Southard, nearly three quarters of a century elapsed before the Court had occasion to approve the delegation to an executive officer of power to issue regulations for the administration of a statute. In 1897 it sustained the authority granted to the Commissioner of Internal Revenue to designate the "marks, brands and stamps" to be affixed to packages of oleomargarine.[35] Soon thereafter it upheld an act which directed the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States.[36] It has approved the delegation to executive or administrative officials of authority to make rules governing the use of forest reservations;[37] permitting reasonable variations and tolerances in the marking of food packages to disclose their contents;[38] designating tobacco markets at which grading of tobacco would be compulsory;[39] establishing priorities for the transportation of freight during a period of emergency;[40] prescribing price schedules for the distribution of milk;[41] or for all commodities[42] and for rental housing[43] in time of war; regulating wages and prices in the production and distribution of coal;[44] imposing a curfew to protect military resources in designated areas from espionage and sabotage;[45] providing for the appointment of receivers or conservators for Federal Savings and Loan Associations;[46] allotting marketing quotas for tobacco;[47] and prescribing methods of accounting for carriers in interstate commerce.[48] ORDERS DIRECTED TO PARTICULAR PERSONS The now familiar pattern of regulation of important segments of the economy by boards or commissions which combine in varying proportions the functions of all three departments of government was first established by the States in the field of railroad rate regulation. Discovering that direct action was impracticable, the State legislatures created commissions to deal with the problem. One of the pioneers in this development was Minnesota, whose Supreme Court justified the practice in an opinion which, with the implied[49] and later the explicit,[50] endorsement of the Supreme Court, practically settled the law on this point: "If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever-varying conditions of traffic."[51] Contemporaneously Congress created the Interstate Commerce Commission to regulate the rates and practices of railroads with respect to interstate commerce. Although the Supreme Court has never had occasion to render a direct decision on the delegation of rate-making power to the Commission, it has repeatedly affirmed rate orders issued by that agency.[52] Likewise it has sustained the power of the Secretary of War to order the removal or alteration of bridges which unreasonably obstructed navigation over navigable waters;[53] the power of the Federal Reserve Board to authorize national banks to act as fiduciaries;[54] the authority of the Secretary of Labor to deport aliens of certain enumerated classes, if after hearing he found such aliens to be "undesirable residents";[55] the responsibility of the Interstate Commerce Commission to approve railroad consolidations found to be in the "public interest";[56] and the powers of the Federal Radio Commission[57] and the Federal Communications Commission[58] to license broadcasting stations as "public convenience, interest and necessity" may require. The terms, however, in which a statute delegates authority to an administrative agent are subject to judicial review; and in a recent case the Court disallowed an order of the Secretary of Agriculture proporting resting on § 8 of the Agricultural Marketing Agreement Act of 1937[59] as _ultra vires_.[60] DELEGATION TO PRIVATE PERSONS Although in a few early cases the Supreme Court enforced statutes which gave legal effect to local customs of miners with respect to mining claims on public lands,[61] and to standards adopted by railroads for equipment on railroad cars,[62] it held, in Schechter Poultry Corp. _v._ United States,[63] and Carter _v._ Carter Coal Company[64] that private trade groups could not be empowered to issue binding rules concerning methods of competition or wages and hours of labor. On the other hand, statutes providing that restrictions upon the production or marketing of agricultural commodities shall become operative only upon a favorable vote by a prescribed majority of the persons affected have been upheld.[65] The position of the Court is that such a requirement does not involve any delegation of legislative authority, since Congress has merely placed a restriction upon its own regulation by withholding its operation in a given case unless it is approved upon a referendum.[66] POWER TO GIVE EFFECT TO CONTINGENT LEGISLATION An entirely different problem arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of "filling up the details" of a statute, authority for it must be sought elsewhere than in Wayman _v._ Southard and its progeny. It is to be found in an even earlier case--The Brig Aurora[67]--where the revival of a law upon the issuance of a Presidential proclamation was upheld in 1813. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices which violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Court answered briefly that "we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct."[68] MODIFICATION OF TARIFF LAWS This point was raised again in Field _v._ Clark,[69] where the Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated commodities "for such time as he shall deem just" if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions which "he may deem to be reciprocally unequal and unjust." In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents which demonstrated that "in the judgment of the legislative branch of the government, it is often desirable, if not essential, * * *, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations";[70] (2) that the act "did not, in any real sense, invest the President with the power of legislation. * * * Congress itself prescribed, in advance, the duties to be levied, * * *, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. * * * He had no discretion in the premises except in respect to the duration of the suspension so ordered."[71] By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922 whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President.[72] ARMS EMBARGO That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was clearly indicated in United States _v._ Curtiss-Wright Export Corp.[73] There the Court upheld the Joint Resolution of Congress which made it unlawful to sell arms to certain warring countries "if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace * * *, and if * * *, he makes proclamation to that effect, * * *" Said Justice Sutherland for the Court: "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations--* * *, Congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."[74] INTERNAL AFFAIRS Panama Refining Co. _v._ Ryan[75] was the first case in which the President had been authorized to put into effect by proclamation, a new and independent rule pertaining to internal affairs. One section of the National Industrial Recovery Act authorized the President to forbid the shipment in interstate commerce of oil produced or withdrawn from storage in violation of State law. Apart from the purposes broadly stated in the first section--economic recovery and conservation of natural resources--the measure contained no standard or statement of policy by which the President should be guided in determining whether or when to issue the order. Nor did it require him to make any findings of fact to disclose the basis of his action. By a vote of eight-to-one the Court held the delegation invalid. The only case in which the power of an administrative official to modify a rule enacted by Congress relating to domestic affairs has been sustained is Opp Cotton Mills _v._ Administrator.[76] That case involved the provisions of the Fair Labor Standards Act which authorized the appointment of Industry Advisory Committees to investigate conditions in particular industries, with notice and opportunity to be heard afforded to interested parties. Upon consideration of factors enumerated in the law and upon finding that the conditions specified in the law were fulfilled, such Committees were empowered to recommend and the Administrator to adopt, higher minimum wage rates for particular industries. Emphasizing the procedure which the agency was directed to follow and the fact that it would be impossible for Congress to prescribe specific minimum wages for particular industries,[77] a unanimous court sustained the law on the ground that the sole function of the Administrator was to put into effect the definite policy adopted by the legislators. EMERGENCY STATUTES Occupying a midway station between legislation which deals with foreign affairs and purely domestic legislation is what may be termed "emergency statutes." These are largely the outgrowth of the two World Wars. Thus on December 16, 1950, President Truman issued a proclamation declaring "the existence of a national emergency," and by so doing "activated" more than sixty statutes or parts thereof which by their terms apply to or during "a condition of emergency" or "in time of war or national emergency," etc. Most of these specifically leave it to the President to determine the question of emergency, and the White House assumption seems to be that they all do so. Many of the provisions thus activated delegate powers of greater or less importance to the President himself or remove statutory restrictions thereon.[78] PUNISHMENT OF VIOLATIONS If Congress so provides, violations of valid administrative regulations may be punished as crimes.[79] But the penalties must be provided in the statute itself; additional punishment cannot be imposed by administrative action.[80] In an early case, the Court held that a section prescribing penalties for any violation of a statute did not warrant a prosecution for wilful disobedience of regulations authorized by, and lawfully issued pursuant to, the act.[81] Without disavowing this general proposition, the Court, in 1944, upheld a suspension order issued by the OPA whereby a dealer in fuel oil who had violated rationing regulations was forbidden to receive or deal on that commodity.[82] Although such an order was not explicitly authorized by statute, it was sustained as being a reasonable measure for effecting a fair allocation of fuel oil, rather than as a means of punishment for an offender. In another OPA case, the Court ruled that in a criminal prosecution, a price regulation was subject to the same rule of strict construction as a statute, and that omissions from, or indefiniteness in, such a regulation, could not be cured by the Administrator's interpretation thereof.[83] Congressional Investigations INVESTIGATIONS IN AID OF LEGISLATION No provision of the Constitution expressly authorized either house of Congress to make investigations and exact testimony to the end that it may exercise its legislative function effectively and advisedly. But such a power had been frequently exercised by the British Parliament and by the Assemblies of the American Colonies prior to the adoption of the Constitution.[84] It was asserted by the House of Representatives as early as 1792 when it appointed a committee to investigate the disaster to General St. Clair and his army in the Northwest and empowered it to "call for such persons, papers, and records, as may be necessary to assist their inquiries."[85] CONDUCT OF EXECUTIVE DEPARTMENT For many years the investigating function of Congress was limited to inquiries into the administration of the Executive Department or of instrumentalities of the Government. Until the administration of Andrew Jackson this power was not seriously challenged.[86] During the controversy over renewal of the charter of the Bank of the United States, John Quincy Adams contended that an unlimited inquiry into the operations of the bank would be beyond the power of the House.[87] Four years later the legislative power of investigation was challenged by the President. A committee appointed by the House of Representatives "with power to send for persons and papers, and with instructions to inquire into the condition of the various executive departments, the ability and integrity with which they have been conducted, * * *"[88] called upon the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid to them. Resentful of this attempt "to invade the just rights of the Executive Departments" the President refused to comply and the majority of the committee acquiesced.[89] Nevertheless Congressional investigations of Executive Departments have continued to the present day. Shortly before the Civil War, contempt proceedings against a witness who refused to testify in an investigation of John Brown's raid upon the arsenal at Harper's Ferry occasioned a thorough consideration by the Senate of the basis of this power. After a protracted debate, which cut sharply across sectional and party lines, the Senate voted overwhelmingly to imprison the contumacious witness.[90] Notwithstanding this firmly established legislative practice the Supreme Court took a narrow view of the power in the case of Kilbourn _v._ Thompson.[91] It held that the House of Representatives had overstepped its jurisdiction when it instituted an investigation of losses suffered by the United States as a creditor of Jay Cooke and Company, whose estate was being administered in bankruptcy by a federal court. But nearly half a century later, in McGrain _v._ Daugherty,[92] it ratified in sweeping terms, the power of Congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration. PRIVATE AFFAIRS Beginning with the resolution adopted by the House of Representatives in 1827 which vested its Committee on Manufactures "with the power to send for persons and papers with a view to ascertain and report to this House such facts as may be useful to guide the judgment of this House in relation to a revision of the tariff duties on imported goods,"[93] the two Houses have asserted the right to inquire into private affairs when necessary to enlighten their judgment on proposed legislation. In Kilbourn _v._ Thompson,[94] the Court denied the right of Congress to pry into private affairs. Again, in Interstate Commerce Commission _v._ Brimson,[95] in sustaining a statute authorizing the Courts to use their process to compel witnesses to give testimony sought by the Commission for the enforcement of the act, the Court warned that, "neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen."[96] Finally, however, in McGrain _v._ Daugherty,[97] the power of either House "to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution, * * *"[98] was judicially recognized and approved. PURPOSE OF INQUIRY In the absence of any showing that legislation was contemplated as a result of the inquiry undertaken in Kilbourn _v._ Thompson, the Supreme Court concluded that the purpose was an improper one--to pry into matters with which the judiciary alone was empowered to deal.[99] Subsequent cases have given the legislature the benefit of a presumption that its object is legitimate. In re Chapman[100] established the proposition that to make an investigation lawful "it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded."[101] Similarly, in McGrain _v._ Daugherty, the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating.[102] Going one step further in Sinclair _v._ United States,[103] which on its facts presented a close parallel to the Kilbourn Case, the Court affirmed the right of the Senate to carry on its investigation of fraudulent leases of government property after suit for the recovery thereof had been instituted. The president of the lessee corporation had refused to testify on the ground that the questions related to his private affairs and to matters cognizable only in the courts wherein they were pending and that the committee avowedly had departed from any inquiry in aid of legislation. The Senate prudently had directed the investigating committee to ascertain what, if any, other or additional legislation may be advisable. Conceding "that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits," the Court declared that the authority "to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits."[104] JUDICIAL FUNCTIONS When either House exercises a judicial function, as in judging of elections or determining whether a member should be expelled, it is clearly entitled to compel the attendance of witnesses to disclose the facts upon which its action must be based. Thus the Court held that since a House had a right to expel a member for any offense which it deemed incompatible with his trust and duty as a member, it was entitled to investigate such conduct and to summon private individuals to give testimony concerning it.[105] The decision in Barry _v._ United States ex rel. Cunningham[106] sanctioned the exercise of a similar power in investigating a Senatorial election. SANCTIONS OF THE INVESTIGATORY POWER Contempt Explicit judicial recognition of the right of either House of Congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from McGrain _v._ Daugherty. But the principle there applied had its roots in an early case, Anderson _v._ Dunn,[107] which affirmed in broad terms the right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority--in that case an attempt to bribe one of its members. The right to punish a contumacious witness was conceded in Marshall _v._ Gordon,[108] although the Court there held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the House. Both Anderson _v._ Dunn and Marshall _v._ Gordon emphasized that the power to punish for contempt rests upon the right of self-preservation; that is, in the words of Chief Justice White, "the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed."[109] Whence it was argued, in Jurney _v._ MacCracken[110] that the Senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena, because the "power to punish for contempt may never be exerted, in the case of a private citizen, solely _qua_ punishment. * * * the power to punish ceases as soon as the obstruction has been removed, or its removal has become impossible; * * *" The Court confirmed the power to punish for a past contempt as an appropriate means for vindicating "the established and essential privilege of requiring the production of evidence."[111] Criminal Prosecutions Under the rule laid down by Anderson _v._ Dunn, imprisonment for contempt of one of the Houses of Congress could not extend beyond the adjournment of the body which ordered it.[112] This limitation seriously impaired the efficacy of such sanction. Accordingly, in 1857 Congress found it necessary to provide criminal penalties for recalcitrant witnesses, in order to make its power to compel testimony more effective. The Supreme Court held that the purpose of this statute was merely to supplement the power of contempt by providing additional punishment, and overruled all constitutional objections to it saying: "We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but, because Congress, by the act of 1857, sought to aid each of the Houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved; * * *."[113] In a prosecution for wilful failure of a person to produce records within her custody and control pursuant to a lawful subpoena issued by a committee of the House of Representatives, the Supreme Court ruled that the presence of a quorum of the committee at the time of the return of the subpoena was not an essential element of the offense.[114] Previously the Court had held that a prosecution could not be maintained under a general perjury statute for false testimony given before a Congressional committee unless a quorum of the committee was present when the evidence was given.[115] Section 2. Clause 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. Clause 2. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of the State in which he shall be chosen. Qualifications of Members of Congress CONGRESSIONAL PROTECTION OF RIGHT TO VOTE FOR REPRESENTATIVES Although the qualifications of electors of Members of Congress are defined by State law,[116] the right to vote for such Representatives is derived from the Federal Constitution.[117] Unlike the rights guaranteed by the Fourteenth and Fifteenth Amendments, this privilege is secured against the actions of individuals as well as of the States.[118] It embraces the right to cast a ballot and to have it counted honestly.[119] Where a primary election is made by law an integral part of the procedure of choice or where the choice of a representative is in fact controlled by the primary, the Constitution safeguards the rights of qualified electors to participate therein.[120] Congress may protect this right by appropriate legislation.[121] In prosecutions instituted under section 19 of the Criminal Code,[122] the Court had held that failure to count ballots lawfully cast,[123] or dilution of their value by stuffing the ballot box with fraudulent ballots[124] constitutes a denial of the constitutional right to elect Representatives in Congress. But the bribery of voters, although within reach of Congressional power under other clauses of the Constitution, is not deemed to be an interference with the rights guaranteed by this section to other qualified voters.[125] WHEN THE ABOVE QUALIFICATIONS MUST BE POSSESSED The principal disputes which have arisen under these sections have related to the time as of which members-elect must fulfill the conditions of eligibility, and whether additional requirements may be imposed by federal or State law. Although on two occasions when it refused to seat persons who were ineligible when they sought to take the oath of office, the Senate indicated that eligibility must exist at the time of election, it is now established in both Houses that it is sufficient if the requirements are met when the oath is administered. Thus persons elected to either House before attaining the required age or term of citizenship have been admitted as soon as they became qualified.[126] ENLARGEMENT OF QUALIFICATIONS Writing in The Federalist[127] with reference to the election of Members of Congress, Hamilton expressed the opinion that "the qualifications of persons who may * * * be chosen * * * are defined and fixed in the Constitution and are unalterable by the legislature." The question remained academic until the Civil War, when Congress passed a law requiring its members to take an oath that they had never been disloyal to the Federal Government. In subsequent contests over the seating of men charged with disloyalty, the right of Congress to establish by law other qualifications for its members than those contained in the Constitution was sharply challenged. Nevertheless, both the House and Senate, relying on this act, did refuse to seat several persons.[128] At this time the principal argument against the statute was that all persons were eligible for the office of Representative unless the Constitution made them ineligible. In Burton _v._ United States,[129] the argument was given a new twist. A law providing that a Senator or Representative convicted of unlawfully receiving money for services rendered before a government department should be "rendered forever thereafter incapable of holding any office of honor, trust or profit under the Government of the United States," was assailed as an unconstitutional interference with the authority of each House to judge the qualifications of, or to expel, one of its own members. The Court construed the statute not to affect the offender's tenure as a Senator, and left undecided the power of Congress to impose additional qualifications (or disqualifications).[130] In exercising the power granted by section 5 to judge the qualifications of its own members, each House has asserted the power to inquire into the conduct of a member-elect prior to his election. In 1900 the House of Representatives refused to seat a person who practiced polygamy,[131] and in 1928 the Senate voted to exclude a Senator-elect on the ground that his acceptance of large campaign contributions from persons who were subject to regulation by a State Administrative Commission of which he had been Chairman were "contrary to sound public policy" and tainted his credentials with fraud and corruption.[132] INABILITY OF THE STATES TO ENLARGE A State may not add to the qualifications prescribed by the Constitution for members of the Senate and House of Representatives. Asserting this principle, the House in 1807 seated a member whose election was contested on the ground that he had not been twelve months a resident of the district from which elected as required by State law. No attempt was made to ascertain whether these requirements were met because the State law was deemed to be unconstitutional.[133] Both the House and Senate have seated members elected during their term of office as State judges, despite the provision of State constitutions purporting to bar the election of judges to any other office under the State or the United States during such term.[134] Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons].[135] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. THE CENSUS REQUIREMENT While section 2 expressly provides for an enumeration of persons, Congress has repeatedly directed an enumeration not only of the free persons in the States, but also of those in the territories, and has required all persons over eighteen years of age to answer an ever-lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court;[136] it is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action. Although taking an enlarged view of its power in making the enumeration of persons called for by this section, Congress has not always complied with its positive mandate to reapportion representatives among the States after the census is taken. It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929,[137] it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so-called "method of major fractions" which had been earlier employed in the apportionment of 1911. Clause 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section 3. Clause 1. [The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one vote]. Clause 2. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; [and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies].[138] Clause 3. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. Clause 4. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. Clause 5. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. Clause 6. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Clause 7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. Clause 1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. Federal Legislation Under This Clause Not until 1842 did Congress undertake to exercise the power to regulate the "times, places and manner of holding elections for Senators and Representatives." In that year it passed a law requiring the election of Representatives by districts.[139] Prior to that time some of the States had sought to increase their influence by electing all of their Representatives on a general ticket. The frequent deadlocks between the two Houses of State legislatures with respect to the election of Senators prompted Congress to pass a further act in 1866, which compelled the two bodies to meet in joint session on a specified day, and to meet everyday thereafter and vote for a Senator until one was elected.[140] The first comprehensive federal statute dealing with elections was adopted in 1870. Under the Enforcement Act of 1870 and kindred measures,[141] false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by State of federal law, were made federal offenses. Provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election tally sheets. After twenty-four years experience Congress repealed those portions of the Reconstruction legislation which dealt specifically with elections, but left in effect those dealing generally with Civil Rights.[142] As seen earlier, those sections have been invoked for the prosecution of election offenses which interfere with the rights of voters guaranteed by the second section of this article. The election laws, of the Reconstruction period were held invalid in part as applied to municipal elections,[143] but were found to be a constitutional exercise of the authority conferred by this section with respect to the election of members of Congress.[144] LEGISLATURE DEFINED While requiring the election of Representatives by districts, Congress has left it to the States to define the areas from which members should be chosen. This has occasioned a number of disputes concerning the validity of action taken by the States. In Ohio ex rel. Davis _v._ Hildebrant,[145] a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several States, produced a series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to State legislatures by the Constitution, the Court decided that it was legislative in character and hence subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the State constitution.[146] PRESENT INEQUALITY OF ELECTION DISTRICTS The Reapportionment Act of 1929[147] omitted a requirement contained in the 1911 law[148] that Congressional districts be "composed of a contiguous and compact territory, * * * containing as nearly as practicable an equal number of inhabitants." Since the earlier act was not repealed it was argued that the mandate concerning compactness, contiguity and equality of population of districts was still controlling. The Supreme Court rejected this view.[149] In Colegrove _v._ Green,[150] the Illinois Apportionment law, which created districts now having glaringly unequal populations, was attacked as unconstitutional on the ground that it denied to voters in the more populous districts the full right to vote and to the equal protection of the laws. The Court dismissed the complaint, three Justices asserting that the issue was not justiciable, and a fourth that the case was one in which the Court should decline to exercise jurisdiction.[151] Justice Black, dissenting in an opinion in which Justices Douglas and Murphy joined, argued: "While the Constitution contains no express provision requiring that Congressional election districts established by the States must contain approximately equal populations, the constitutionally guaranteed right to vote and the right to have one's vote counted clearly imply the policy that State election systems, no matter what their form, should be designed to give approximately equal weight of each vote case. * * * legislation which must inevitably bring about glaringly unequal representation in the Congress in favor of special classes and groups should be invalidated, 'whether accomplished ingeniously or ingenuously'."[152] CONGRESSIONAL PROTECTION OF THE ELECTORAL PROCESS Congress can by law protect the voter from personal violence or intimidation and the election itself from corruption and fraud.[153] To accomplish these ends it may adopt the statutes of the States and enforce them by its own sanctions.[154] It may punish a State election officer for violating his duty under a State law governing Congressional elections.[155] It may also punish federal officers and employees who solicit or receive contributions to procure the nomination of a particular candidate in a State primary election.[156] At one time the Court held that Congress had no power, at least prior to the adoption of the Seventeenth Amendment, to limit the expenditures made to procure a primary nomination to the United States Senate,[157] but this decision has been greatly weakened, and the right of the National Government to regulate primary elections conducted under State law for the nomination of Members of Congress has been squarely recognized where such primary is made by State law "an integral part of the procedure of choice, or where in fact the primary effectively controls the choice,..."[158] Clause 2. [The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by law appoint a different Day]. Section 5. Clause 1. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Clause 2. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Clause 3. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Clause 4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Powers and Duties of the Houses POWER TO JUDGE ELECTIONS Each House, in judging of elections under this clause acts as a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.[159] It may punish perjury committed in testifying before a notary public upon a contested election.[160] The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.[161] Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.[162] Nor does such refusal unlawfully deprive the State which elected such person of its equal suffrage in the Senate.[163] "A QUORUM TO DO BUSINESS" For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the House in order to satisfy the constitutional requirement for a quorum. It was a common practice for the opposition to break a quorum by refusing to vote. This was changed in 1890, by a ruling made by Speaker Reed, and later embodied in Rule XV of the House, that members present in the chamber but not voting would be counted in determining the presence of a quorum.[164] The Supreme Court upheld this rule in United States _v._ Ballin,[165] saying that the capacity of the House to transact business is "created by the mere presence of a majority," and that since the Constitution does not prescribe any method for determining the presence of such majority "it is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact."[166] The rules of the Senate provide for the ascertainment of a quorum only by a roll call,[167] but in a few cases it has held that if a quorum is present, a proposition can be determined by the vote of a lesser number of members.[168] RULES OF PROCEDURE In the exercise of their constitutional power to determine their rules of proceedings the Houses of Congress may not "ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, * * * The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."[169] Where a rule affects private rights, the construction thereof becomes a judicial question. In United States _v._ Smith,[170] the Court held that the Senate's attempt to reconsider its confirmation of a person nominated by the President as Chairman of the Federal Power Commission was not warranted by its rules, and did not deprive the appointee of his title to the office. In Christoffel _v._ United States[171] a sharply divided Court upset a conviction for perjury in the district courts of one who had denied under oath before a House Committee any affiliation with Communism. The reversal was based on the ground that inasmuch as a quorum of the Committee, while present at the outset, was not present at the time of the alleged perjury, testimony before it was not before a "competent tribunal" within the sense of the District of Columbia Code.[172] Four Justices, speaking by Justice Jackson dissented, arguing that under the rules and practices of the House, "a quorum once established is presumed to continue unless and until a point of no quorum is raised" and that the Court was, in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts "where such an issue is tendered."[173] POWERS OF THE HOUSES OVER MEMBERS Congress has authority to make it an offense against the United States for a Member, during his continuance in office, to receive compensation for services before a government department in relation to proceedings in which the United States is interested. Such a statute does not interfere with the legitimate authority of the Senate or House over its own Members.[174] In upholding the power of the Senate to investigate charges that some Senators had been speculating in sugar stocks during the consideration of a tariff bill, the Supreme Court asserted that "the right to expel extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a Member."[175] It cited with apparent approval the action of the Senate in expelling William Blount in 1797 for attempting to seduce an American agent among the Indians from his duty and for negotiating for services in behalf of the British Government among the Indians--conduct which was not a "statutable offense" and which was not committed in his official character, nor during the session of Congress nor at the seat of government. THE DUTY TO KEEP A JOURNAL The object of the clause requiring the keeping of a Journal is "to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents."[176] When the Journal of either House is put in evidence for the purpose of determining whether the yeas and nays, were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final.[177] But when an enrolled bill, which has been signed by the Speaker of the House and by the President of the Senate, in open session, receives the approval of the President and is deposited in the Department of State, its authentication as a bill that has passed Congress is complete and unimpeachable, and it is not competent to show from the Journals of either House that an act so authenticated, approved, and deposited, in fact omitted one section actually passed by both Houses of Congress.[178] Section 6. Clause 1. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. Compensation, Immunities and Disabilities of Members WHEN THE PAY STARTS A Member of Congress who receives his certificate of admission, and is seated, allowed to vote, and serve on committees, is _prima facie_ entitled to the seat and salary, even though the House subsequently declares his seat vacant. The one who contested the election and was subsequently chosen to fill the vacancy is entitled to salary only from the time the compensation of such "predecessor" has ceased.[179] PRIVILEGE FROM ARREST This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted.[180] It does not apply to service of process in either civil[181] or criminal cases.[182] Nor does it apply to arrest in any criminal case. The phrase "treason, felony or breach of the peace" is interpreted to withdraw all criminal offenses from the operation of the privilege.[183] THE PRIVILEGE OF SPEECH OR DEBATE The protection of this clause is not limited to words spoken in debate, but is applicable to written reports, to resolutions offered, to the act of voting and to all things generally done in a session of the House by one of its members in relation to the business before it.[184] In Kilbourn _v._ Thompson[185] the Supreme Court quoted with approval the following excerpt from the opinion of Chief Justice Parsons in the early Massachusetts of Coffin _v._ Coffin,[186] giving a broad scope to the immunity of legislators: "'These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I, therefore, think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office. And I would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the rules of the House, or irregular and against their rules. I do not confine the member to his place in the House; and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives' chamber.'"[187] Accordingly the Court ruled that Members of the House of Representatives were not liable to a suit for false imprisonment by reason of their initiation and prosecution of the legislative proceedings under which plaintiff was arrested.[188] Nor does the claim of an unworthy purpose destroy the privilege. "Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators".[189] Clause 2. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. INCOMPATIBLE OFFICES According to legislative precedents, visitors to academies, regents, directors and trustees of public institutions, and members of temporary commissions who receive no compensation as such, are not officers within the constitutional inhibition of section 6.[190] Government contractors and federal officers who resign before presenting their credentials may be seated as Members of Congress.[191] In 1909, after having increased the salary of the Secretary of State,[192] Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office.[193] The first clause again became a subject of discussion in 1937, when Justice Black was appointed to the Supreme Court in face of the fact that Congress had recently improved the financial position of Justices retiring at seventy and the term for which Mr. Black had been elected to the Senate from Alabama in 1932 had still some time to run. The appointment was defended by the argument that inasmuch as Mr. Black was only fifty-one years old at the time and so would be ineligible for the "increased emolument" for nineteen years, it was not _as to him_ an increased emolument.[194] Section 7. Clause 1. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Clause 2. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. THE LEGISLATIVE PROCESS REVENUE BILLS Only bills to levy taxes in the strict sense of the word are comprehended by the phrase "all bills for raising revenue"; bills for other purposes, which incidentally create revenue, are not included.[195] An act providing a national currency secured by a pledge of bonds of the United States, which, "in the furtherance of that object, and also to meet the expenses attending the execution of the act," imposed a tax on the circulating notes of national banks was held not to be a revenue measure which must originate in the House of Representatives.[196] Neither was a bill which provided that the District of Columbia should raise by taxation and pay to designated railroad companies a specified sum for the elimination of grade crossings and the construction of a union railway station.[197] The substitution of a corporation tax for an inheritance tax,[198] and the addition of a section imposing an excise tax upon the use of foreign built pleasure yachts,[199] have been held to be within the Senate's constitutional power to propose amendments. APPROVAL BY THE PRESIDENT The President is not restricted to signing a bill on a day when Congress is in session.[200] He may sign within ten days (Sundays excepted) after the bill is presented to him, even if that period extends beyond the date of the final adjournment of Congress.[201] His duty in case of approval of a measure is merely to sign it. He need not write on the bill the word "approved" nor the date. If no date appears on the face of the roll, the Court may ascertain the fact by resort to any source of information capable of furnishing a satisfactory answer.[202] A bill becomes law on the date of its approval by the President.[203] When no time is fixed by the act it is effective from the date of its approval,[204] which usually is taken to be the first moment of the day, fractions of a day being disregarded.[205] THE VETO POWER If Congress adjourns within ten days (Sundays excepted) of the presentation of a bill to the President, the return of the bill is prevented within the meaning of this clause. Consequently it does not become law if the President does not sign it, but succumbs to what in Congressional parlance is called a "pocket veto."[206] But a brief recess by the House in which a bill originated, while the Congress is still in session, does not prevent the return of a bill by delivery to one of the officers of the House who has implied authority to receive it.[207] The two-thirds vote of each House required to pass a bill over a veto means two-thirds of a quorum.[208] After a bill becomes law the President has no authority to repeal it. Asserting this truism, the Supreme Court held in The Confiscation Cases,[209] that the immunity proclamation issued by the President in 1868 did not require reversal of a decree condemning property which had been seized under the Confiscation Act of 1862.[210] Clause 3. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. PRESENTATION OF RESOLUTIONS The sweeping nature of this obviously ill-considered provision is emphasized by the single exception specified to its operation. Actually, it was impossible from the first to give it any such scope. Otherwise the intermediate stages of the legislative process would have been bogged down hopelessly, not to mention other highly undesirable results. In a report rendered by the Senate Judiciary Committee in 1897 it was shown that the word "necessary" in the clause had come in practice to refer "to the necessity occasioned by the requirement of other provisions of the Constitution, whereby every exercise of 'legislative powers' involves the concurrence of the two Houses"; or more briefly, "necessary" here means necessary if an "order, resolution, or vote" is to have the force of law. Such resolutions have come to be termed "joint resolutions" and stand on a level with "bills," which if "enacted" become Statutes. But "votes" taken in either House preliminary to the final passage of legislation need not be submitted to the President, nor resolutions passed by the Houses concurrently with a view to expressing an opinion or to devising a common program of action (e.g., the concurrent resolutions by which during the fight over Reconstruction the Southern States were excluded from representation in the House and Senate, the Joint Committee on Reconstruction containing members from both Houses was created, etc.), or to directing the expenditure of money appropriated to the use of the two Houses.[211] Within recent years the concurrent resolution has been put to a new use--the termination of powers delegated to the Chief Executive, or the disapproval of particular exercises of power by him. Most of the important legislation enacted for the prosecution of World War II provided that the powers granted to the President should come to an end upon adoption of concurrent resolutions to that effect.[212] Similarly, measures authorizing the President to reorganize executive agencies have provided that a Reorganization Plan promulgated by him should be reported by Congress and should not become effective if one[213] or both[214] Houses adopted a resolution disapproving it. Also, it was settled as early as 1789 that resolutions of Congress proposing amendments to the Constitution need not be submitted to the President, the Bill of Rights having been referred to the States without being laid before President Washington for his approval--a procedure which the Court ratified in due course.[215] Section 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States. The Taxing-Spending Power KINDS OF TAXES PERMITTED By the terms of the Constitution, the power of Congress to levy taxes is subject to but one exception and two qualifications. Articles exported from any State may not be taxed at all. Direct taxes must be levied by the rule of apportionment and indirect taxes by the rule of uniformity. The Court has emphasized the sweeping character of this power by saying from time to time that it "reaches every subject,"[216] that it is "exhaustive"[217] or that it "embraces every conceivable power of taxation."[218] Despite these generalizations, the power has been at times substantially curtailed by judicial decision with respect to the subject matter of taxation, the manner in which taxes are imposed, and the objects for which they may be levied. DECLINE OF THE FORBIDDEN SUBJECT MATTER TEST In recent years the Supreme Court has restored to Congress the power to tax most of the subject matter which had previously been withdrawn from its reach by judicial decision. The holding of Evans _v._ Gore[219] and Miles _v._ Graham[220] that the inclusion of the salaries received by federal judges in measuring the liability for a nondiscriminatory income tax violated the constitutional mandate that the compensation of such judges should not be diminished during their continuance in office was repudiated in O'Malley _v._ Woodrough.[221] The specific ruling of Collector _v._ Day[222] that the salary of a State officer is immune to federal income taxation also has been overruled.[223] But the principle underlying that decision--that Congress may not lay a tax which would impair the sovereignty of the States--is still recognized as retaining some vitality. THE RISE AND FALL OF COLLECTOR _v._ DAY Collector _v._ Day was decided in 1871 while the country was still in the throes of reconstruction. As noted by Chief Justice Stone in a footnote to his opinion in Helvering _v._ Gerhardt,[224] the Court had not then determined how far the Civil War amendments had broadened the federal power at the expense of the States; the fact that the taxing power had recently been used with destructive effect upon notes issued by State banks[225] suggested the possibility of similar attacks upon the existence of the States themselves. Two years later the Court took the logical further step of holding that the federal income tax could not be imposed on income received by a municipal corporation from its investments.[226] A far-reaching extension of private immunity was granted in Pollock _v._ Farmers Loan and Trust Co.,[227] where interest received by a private investor on State or municipal bonds was held to be exempt from federal taxation. As the apprehensions of this era subsided, the doctrine of these cases was pushed into the background. It never received the same wide application as did McCulloch _v._ Maryland[228] in curbing the power of the States to tax operations or instrumentalities of the Federal Government. Only once since the turn of the century has the national taxing power been further narrowed in the name of Dual Federalism. In 1931 the Court held that a federal excise tax was inapplicable to the manufacture and sale to a municipal corporation of equipment for its police force.[229] Justices Stone and Brandeis dissented from this decision and it is doubtful whether it would be followed today. FEDERAL TAXATION OF STATE INTERESTS Within a decade after the Pollock decision the retreat from Collector _v._ Day began. In 1903, a succession tax upon a bequest to a municipality for public purposes was upheld on the ground that the tax was payable out of the estate before distribution to the legatee. Looking to form and not to substance, in disregard of the mandate of Brown _v._ Maryland,[230] a closely divided Court declined to "regard it as a tax upon the municipality, though it might operate incidentally to reduce the bequest by the amount of the tax."[231] When South Carolina embarked upon the business of dispensing alcoholic beverages, its agents were held to be subject to the national internal revenue tax, the ground of the holding being that in 1787 such a business was not regarded as one of the ordinary functions of government.[232] Another decision marking a clear departure from the logic of Collector _v._ Day was Flint _v._ Stone Tracy Company,[233] where the Court sustained an act of Congress taxing the privilege of doing business as a corporation, the tax being measured by the income. The argument that the tax imposed an unconstitutional burden on the exercise by a State of its reserved power to create corporate franchises was rejected, partly in consideration of the principle of national supremacy, and partly on the ground that the corporate franchises were private property. This case also qualified Pollock _v._ Farmers Loan and Trust Company to the extent of allowing interest on State bonds to be included in measuring the tax on the corporation. Subsequent cases have sustained an estate tax on the net estate of a decedent, including State bonds;[234] excise taxes on the transportation of merchandise in performance of a contract to sell and deliver it to a county;[235] on the importation of scientific apparatus by a State university;[236] on admissions to athletic contests sponsored by a State institution, the net proceeds of which were used to further its educational program;[237] and on admissions to recreational facilities operated on a nonprofit basis by a municipal corporation.[238] Income derived by independent engineering contractors from the performance of State functions;[239] the compensation of trustees appointed to manage a street railway taken over and operated by a State;[240] profits derived from the sale of State bonds;[241] or from oil produced by lessees of State lands;[242] have all been held to be subject to federal taxation despite a possible economic burden on the State. IS ANY IMMUNITY LEFT THE STATES? Although there have been sharp differences of opinion among members of the Supreme Court in recent cases dealing with the tax immunity of State functions and instrumentalities, it has been stated that "all agree that not all of the former immunity is gone."[243] Twice the Court has made an effort to express its new point of view in a statement of general principles by which the right to such immunity shall be determined. However, the failure to muster a majority in concurrence with any single opinion in the more recent of these cases leaves the question very much in doubt. In Helvering _v._ Gerhardt,[244] where, without overruling Collector _v._ Day, it narrowed the immunity of salaries of State officers and federal income taxation, the Court announced "* * *, two guiding principles of limitation for holding the tax immunity of State instrumentalities to its proper function. The one, dependent upon the nature of the function being performed by the State or in its behalf, excludes from the immunity activities thought not to be essential to the preservation of State governments even though the tax be collected from the State treasury. * * * The other principle, exemplified by those cases where the tax laid upon individuals affects the State only as the burden is passed on to it by the taxpayer, forbids recognition of the immunity when the burden on the State is so speculative and uncertain that if allowed it would restrict the federal taxing power without affording any corresponding tangible protection to the State government; even though the function be thought important enough to demand immunity from a tax upon the State itself, it is not necessarily protected from a tax which well may be substantially or entirely absorbed by private persons."[245] CONFLICTING VIEWS ON THE COURT The second attempt to formulate a general doctrine was made in New York _v._ United States,[246] where, on review of a judgment affirming the right of the United States to tax the sale of mineral waters taken from property owned and operated by the State of New York, the Court was asked to and did reconsider the right of Congress to tax business enterprises carried on by the States. Justice Frankfurter, speaking for himself and Justice Rutledge, made the question of discrimination _vel non_ against State activities the test of the validity of such a tax. They found "no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter."[247] In a concurring opinion in which Justices Reed, Murphy, and Burton joined, Chief Justice Stone rejected the criterion of discrimination. He repeated what he had said in an earlier case to the effect that "'* * * the limitation upon the taxing power of each, so far as it affects the other, must receive a practical construction which permits both to function with the minimum of interference each with the other; and that limitation cannot be so varied or extended as seriously to impair either the taxing power of the government imposing the tax * * * or the appropriate exercise of the functions of the government affected by it.'"[248] Justices Douglas and Black dissented in an opinion written by the former on the ground that the decision disregarded the Tenth Amendment, placed "the sovereign States on the same plane as private citizens," and made them "pay the Federal Government for the privilege of exercising powers of sovereignty guaranteed them by the Constitution."[249] In the most recent case dealing with State immunity the Court sustained the tax on the second ground mentioned in Helvering _v._ Gerhardt--that the burden of the tax was borne by private persons--and did not consider whether the function was one which the Federal Government might have taxed if the municipality had borne the burden of the exaction.[250] THE RULE OF UNIFORMITY Whether a tax is to be apportioned among the States according to the census taken pursuant to article I, section 2, or imposed uniformly throughout the United States depends upon its classification as direct or indirect.[251] The rule of uniformity for indirect taxes is easy to obey. It exacts only that the subject matter of a levy be taxed at the same rate wherever found in the United States; or, as it is sometimes phrased, the uniformity required is "geographical," not "intrinsic."[252] The clause accordingly places no obstacle in the way of legislative classification for the purpose of taxation, nor in the way of what is called progressive taxation.[253] A taxing statute does not fail of the prescribed uniformity because its operation and incidence may be affected by differences in State laws.[254] A federal estate tax law which permitted a deduction for a like tax paid to a State was not rendered invalid by the fact that one State levied no such tax.[255] The term "United States" in this clause refers only to the States of the Union, the District of Columbia, and incorporated territories. Congress is not bound by the rule of uniformity in framing tax measures for unincorporated territories.[256] Indeed, in Binns _v._ United States,[257] the Court sustained license taxes imposed by Congress but applicable only in Alaska, where the proceeds, although paid into the general fund of the Treasury, did not in fact equal the total cost of maintaining the territorial government. PURPOSES OF TAXATION Regulation by Taxation The discretion of Congress in selecting the objectives of taxation has also been held at times to be subject to limitations implied from the nature of the Federal System. Apart from matters which Congress is authorized to regulate, the national taxing power, it has been said, "reaches only existing subjects."[258] Congress may tax any activity actually carried on, regardless of whether it is permitted or prohibited by the laws of the United States[259] or by those of a State.[260] But so-called federal "licenses," so far as they relate to trade within State limits, merely express "the purpose of the government not to interfere * * * with the trade nominally licensed, if the required taxes are paid." Whether the "licensed" trade shall be permitted at all is a question for decision by the State.[261] This, nevertheless, does not signify that Congress may not often regulate to some extent a business within a State in order the more effectively to tax it. Under the necessary and proper clause, Congress may do this very thing. Not only has the Court sustained regulations concerning the packaging of taxed articles such as tobacco[262] and oleomargarine,[263] ostensibly designed to prevent fraud in the collection of the tax; it has also upheld measures taxing drugs[264] and firearms[265] which prescribed rigorous restrictions under which such articles could be sold or transferred, and imposed heavy penalties upon persons dealing with them in any other way. These regulations were sustained as conducive to the efficient collection of the tax though they clearly transcended in some respects this ground of justification. Extermination by Taxation A problem of a different order is presented where the tax itself has the effect of suppressing an activity or where it is coupled with regulations which clearly have no possible relation to the collection of the tax. Where a tax is imposed unconditionally, so that no other purpose appears on the face of the statute, the Court has refused to inquire into the motives of the lawmakers and has sustained the tax despite its prohibitive proportions.[266] In the language of a recent opinion: "It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. * * * The principle applies even though the revenue obtained is obviously negligible, * * *, or the revenue purpose of the tax may be secondary, * * * Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. As was pointed out in Magnano Co. _v._ Hamilton, 292 U.S. 40, 47 (1934): 'From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment.'"[267] But where the tax is conditional, and may be avoided by compliance with regulations set out in the statute, the validity of the measure is determined by the power of Congress to regulate the subject matter. If the regulations are within the competence of Congress, apart from its power to tax, the exaction is sustained as an appropriate sanction for making them effective;[268] otherwise it is invalid.[269] During the Prohibition Era, Congress levied a heavy tax upon liquor dealers who operated in violation of State law. In United States _v._ Constantine[270] the Court held that this tax was unenforceable after the repeal of the Eighteenth Amendment, since the National Government had no power to impose an additional penalty for infractions of State law. The Protective Tariff The earliest examples of taxes levied with a view to promoting desired economic objectives in addition to raising revenue were, of course, import duties. The second statute adopted by the first Congress was a tariff act which recited that "it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares and merchandise imported."[271] After being debated for nearly a century and a half, the constitutionality of protective tariffs was finally settled by the unanimous decision of the Supreme Court in Hampton and Company _v._ United States,[272] where Chief Justice Taft wrote: "The second objection to § 315 is that the declared plan of Congress, either expressly or by clear implication, formulates its rule to guide the President and his advisory Tariff Commission as one directed to a tariff system of protection that will avoid damaging competition to the country's industries by the importation of goods from other countries at too low a rate to equalize foreign and domestic competition in the markets of the United States. It is contended that the only power of Congress in the levying of customs duties is to create revenue, and that it is unconstitutional to frame the customs duties with any other view than that of revenue raising. * * * In this first Congress sat many members of the Constitutional Convention of 1787. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixes the construction to be given its provisions. * * * The enactment and enforcement of a number of customs revenue laws drawn with a motive of maintaining a system of protection, since the revenue law of 1789, are matters of history. * * * Whatever we may think of the wisdom of a protection policy, we can not hold it unconstitutional. So long as the motive of Congress and the effect of its legislative action are to secure revenue for the benefit of the general government, the existence of other motives in the selection of the subject of taxes cannot invalidate Congressional action."[273] SPENDING FOR THE GENERAL WELFARE The grant of power to "provide * * * for the general welfare" raises a two-fold question: How may Congress provide for "the general welfare" and what is "the general welfare" which it is authorized to promote? The first half of this question was answered by Thomas Jefferson in his Opinion on the Bank as follows: "* * * the laying of taxes is the _power_, and the general welfare the _purpose_ for which the power is to be exercised. They [Congress] are not to lay taxes _ad libitum for any purpose they please_; but only _to pay the debts or provide for the welfare of the Union_. In like manner, they are not _to do anything they please_ to provide for the general welfare, but only to _lay taxes_ for that purpose."[274] The clause, in short, is not an independent grant of power, but a qualification of the taxing power. Although a broader view has been occasionally asserted,[275] Congress has not acted upon it and the Courts have had no occasion to adjudicate the point. Hamilton _v._ Madison With respect to the meaning of "the general welfare" the pages of The Federalist itself disclose a sharp divergence of views between its two principal authors. Hamilton adopted the literal, broad meaning of the clause;[276] Madison contended that the powers of taxation and appropriation of the proposed government should be regarded as merely instrumental to its remaining powers, in other words, as little more than a power of self-support.[277] From an early date Congress has acted upon the interpretation espoused by Hamilton. Appropriations for subsidies[278] and for an ever increasing variety of "internal improvements"[279] constructed by the Federal Government, had their beginnings in the administrations of Washington and Jefferson.[280] Since 1914, federal grants-in-aid,--sums of money apportioned among the States for particular uses, often conditioned upon the duplication of the sums by the recipient State, and upon observance of stipulated restrictions as to its use--have become commonplace.[281] Triumph of the Hamiltonian Theory The scope of the national spending power was brought before the Supreme Court at least five times prior to 1936, but the Court disposed of four of them without construing the "general welfare" clause. In the Pacific Railway Cases[282] and Smith _v._ Kansas City Title and Trust Company,[283] it affirmed the power of Congress to construct internal improvements, and to charter and purchase the capital stock of federal land banks, by reference to the powers of the National Government over commerce, the post roads and fiscal operations, and to its war powers. Decisions on the merits were withheld in two other cases--Massachusetts _v._ Mellon and Frothingham _v._ Mellon[284]--on the ground that neither a State nor an individual citizen is entitled to a remedy in the courts against an unconstitutional appropriation of national funds. In United States _v._ Gettysburg Electric Railway Co.,[285] however, the Court had invoked "the great power of taxation to be exercised for the common defence and the general welfare,"[286] to sustain the right of the Federal Government to acquire land within a State for use as a national park. Finally, in United States _v._ Butler,[287] the Court gave its unqualified endorsement to Hamilton's views on the taxing power. Wrote Justice Roberts for the Court: "Since the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court had noticed the question, but has never found it necessary to decide which is the true construction. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution."[288] The Security Act Cases Although holding that the spending power is not limited by the specific grants of power contained in article I, section 8, the Court found, nevertheless, that it was qualified by the Tenth Amendment, and on this ground ruled in the Butler case that Congress could not use moneys raised by taxation to "purchase compliance" with regulations "of matters of State concern with respect to which Congress has no authority to interfere."[289] Within little more than a year this decision was reduced to narrow proportions by Steward Machine Co. _v._ Davis,[290] which sustained the tax imposed on employers to provide unemployment benefits, and the credit allowed for similar taxes paid to a State. To the argument that the tax and credit in combination were "weapons of coercion, destroying or impairing the autonomy of the States," the Court replied that relief of unemployment was a legitimate object of federal expenditure under the "general welfare" clause; that the Social Security Act represented a legitimate attempt to solve the problem by the cooperation of State and Federal Governments; that the credit allowed for State taxes bore a reasonable relation "to the fiscal need subserved by the tax in its normal operation,"[291] since State unemployment compensation payments would relieve the burden for direct relief borne by the national treasury. The Court reserved judgment as to the validity of a tax "if it is laid upon the condition that a State may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power."[292] Earmarked Funds The appropriation of the proceeds of a tax to a specific use does not affect the validity of the exaction, if the general welfare is advanced and no other constitutional provision is violated. Thus a processing tax on coconut oil was sustained despite the fact that the tax collected upon oil of Philippine production was segregated and paid into the Philippine Treasury.[293] In Helvering _v._ Davis,[294] the excise tax on employers, the proceeds of which were not earmarked in any way, although intended to provide funds for payments to retired workers, was upheld under the "general welfare" clause, the Tenth Amendment being found to be inapplicable. Conditional Grants-in-Aid In the Steward Machine Company case, it was a taxpayer who complained of the invasion of the State sovereignty and the Court put great emphasis on the fact that the State was a willing partner in the plan of cooperation embodied in the Social Security Act.[295] A decade later the right of Congress to impose conditions upon grants-in-aid over the objection of a State was squarely presented in Oklahoma _v._ United States Civil Service Commission.[296] The State objected to the enforcement of a provision of the Hatch Act,[297] whereby its right to receive federal highway funds would be diminished in consequence of its failure to remove from office a member of the State Highway Commission found to have taken an active part in party politics while in office. Although it found that the State had created a legal right which entitled it to an adjudication of its objection, the Court denied the relief sought on the ground that, "While the United States is not concerned with, and has no power to regulate local political activities as such of State officials, it does have power to fix the terms upon which its money allotments to State shall be disbursed. * * * The end sought by Congress through the Hatch Act is better public service by requiring those who administer funds for national needs to abstain from active political partisanship. So even though the action taken by Congress does have effect upon certain activities within the State, it has never been thought that such effect made the federal act invalid."[298] "Debts of the United States" The power to pay the debts of the United States is broad enough to include claims of citizens arising on obligations of right and justice.[299] The Court sustained an act of Congress which set apart for the use of the Philippine Islands, the revenue from a processing tax on coconut oil of Philippine production, as being in pursuance of a moral obligation to protect and promote the welfare of the people of the Islands.[300] Curiously enough, this power was first invoked to assist the United States to collect a debt due to it. In United States _v._ Fisher[301] the Supreme Court sustained a statute which gave the Federal Government priority in the distribution of the estates of its insolvent debtors. The debtor in that case was the endorser of a foreign bill of exchange which apparently had been purchased by the United States. Invoking the "necessary and proper" clause, Chief Justice Marshall deduced the power to collect a debt from the power to pay its obligations by the following reasoning: "The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe."[302] Clause 2. _The Congress shall have Power_ * * * To borrow Money on the credit of the United States. The Borrowing Power The original draft of the Constitution reported to the convention by its Committee of Detail empowered Congress "To borrow money and emit bills on the credit of the United States."[303] When this section was reached in the debates, Gouverneur Morris moved to strike out the clause "and emit bills on the credit of the United States." Madison suggested that it might be sufficient "to prohibit the making them a tender." After a spirited exchange of views on the subject of paper money the convention voted, nine States to two, to delete the words "and emit bills."[304] Nevertheless, in 1870, the Court relied in part upon this clause in holding that Congress had authority to issue treasury notes and to make them legal tender in satisfaction of antecedent debts.[305] When it borrows money "on the credit of the United States" Congress creates a binding obligation to pay the debt as stipulated and cannot thereafter vary the terms of its agreement. A law purporting to abrogate a clause in government bonds calling for payment in gold coin was held to contravene this clause, although the creditor was denied a remedy in the absence of a showing of actual damage.[306] Clause 3. _The Congress shall have power_ * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Purpose of the Clause This clause serves a two-fold purpose: it is the direct source of the most important powers which the National Government exercises in time of peace: and, except for the due process of law clause of Amendment XIV, it is the most important limitation imposed by the Constitution on the exercise of State power. The latter, or restrictive, operation of the clause was long the more important one from the point of view of Constitutional Law. Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from State legislation.[307] It resulted that, with an important exception to be noted in a moment, the guiding lines in construction of the clause were initially laid down from the point of view of its operation as a curb on State power, rather than of its operation as a source of national power; and the consequence of this was that the word "commerce," as designating the thing to be protected against State interference, came to dominate the clause, while the word "regulate" remained in the background. Definition of Terms: Gibbons _v._ Ogden "COMMERCE" The etymology of the word, "cum merce (with merchandise)" carries the primary meaning of traffic--i.e., "to buy and sell goods; to trade" (Webster's International). This narrow conception was replaced in the great leading case of Gibbons _v._ Ogden, 9 Wheat. 1 (1824), by a much broader one, on which interpretation of the clause has been patterned ever since. The case arose out of a series of acts of the legislature of New York, passed between the years 1798 and 1811, which conferred upon Livingston and Fulton the exclusive right to navigate the waters of that State with steam-propelled vessels. Gibbons challenged the monopoly by sending from Elizabethtown, New Jersey, into the Hudson in the State of New York two steam vessels which had been licensed and enrolled to engage in the coasting trade under an act passed by Congress in 1793. Counsel for Ogden (an assignee of Livingston and Fulton) argued that since Gibbons' vessels carried only passengers between New Jersey and New York, they were not engaged in traffic and hence not in "commerce" in the sense of the Constitution. This argument Chief Justice Marshall answered as follows: "The subject to be regulated is commerce; * * * The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more--it is intercourse."[308] The term, therefore, included navigation--a conclusion which Marshall supported by appeal to general understanding, to the prohibition in article I, § 9, against any preference being given "'* * * by any regulation of commerce or revenue, to the ports of one State over those of another,'" and to the admitted and demonstrated power of Congress to impose embargoes.[309] "COMMERCE" TODAY Later in his opinion Marshall qualified the word "intercourse" with the word "commercial."[310] Today "commerce" in the sense of the Constitution, and hence "interstate commerce" when it is carried on across State lines, covers every species of movement of persons and things, whether for profit or not;[311] every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise;[312] every species of commercial negotiation which, as shown "by the established course of the business," will involve sooner or later an act of transportation of persons or things, or the flow of services or power across State lines.[313] From time to time the Court has said that certain things were not interstate commerce, such as mining or manufacturing undertaken "with the intent" that the product shall be transported to other States;[314] insurance transactions when carried on across State lines;[315] exhibitions of baseball between professional teams which travel from State to State;[316] the making of contracts for the insertion of advertisements in periodicals in another State;[317] contracts for personal services to be rendered in another State.[318] Recent decisions either overturn or cast doubt on most if not all of these holdings. By one of these the gathering of news by a press association and its transmission to client newspapers is termed interstate commerce.[319] By another the activities of a Group Health Association which serves only its own members are held to be "trade" within the protection of the Sherman Act and hence capable, if extended, of becoming interstate commerce.[320] By a third the business of insurance when transacted between an insurer and an insured in different States is interstate commerce.[321] THE "NECESSARY AND PROPER" CLAUSE In the majority of the above cases the commerce clause was involved solely as a limitation on the powers of the States. But when the clause is treated as a source of national power it is, of course, read in association with the power of Congress "* * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, * * *,"[322] with the result that, as is pointed out later, "interstate commerce" has come in recent years practically to connote both those operations which precede as well as those which follow commercial intercourse itself, provided such operations are deemed by the Court to be capable of "affecting" such intercourse.[323] "AMONG THE SEVERAL STATES" In Cohens _v._ Virginia, decided in 1821, Marshall had asserted, "for all commercial purposes we are one nation."[324] In Gibbons _v._ Ogden, however, he conceded that the phrase commerce "among the several States" was "not one which would probably have been selected to indicate the completely interior traffic of a State"; and added: "The genius and character of the whole government seem to be, that its action is to be applied to all external concerns of the nation, and to those internal concerns which affect the States generally; but not those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government."[325] This recognition of an "exclusively internal" commerce of a State ("intrastate commerce" today) appears at times to have been regarded as implying the existence of an area of State power which Congress was not entitled constitutionally to enter.[326] This inference overlooked the fact that, in consequence of its powers under the necessary and proper clause, Congress can, as Marshall indicates in the words above quoted, interfere with the completely internal concerns of a State "for the purpose of executing its general powers," one of which is its power over foreign and interstate commerce. It is today established doctrine that "no form of State activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress."[327] And while the word "among" serves to demark "the completely internal" commerce of a State from that which "extends to or affects" other States, it also serves, as Marshall further pointed out, to emphasize the fact that "the power of Congress does not stop at the jurisdictional lines of the several States," but "must be exercised whenever [wherever?] the subject exists. * * * Commerce among the States must, of necessity, be commerce [within?] the States. * * * The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several States."[328] "REGULATE" Elucidating this word in his opinion for the Court in Gibbons _v._ Ogden, Chief Justice Marshall said: "We are now arrived at the inquiry--What is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments."[329] INTERSTATE VERSUS FOREIGN COMMERCE There are certain later judicial dicta which urge or suggest that Congress's power to regulate interstate commerce restrictively is less than its analogous power over foreign commerce, the argument being that whereas the latter is a branch of the nation's unlimited power over foreign relations, the former was conferred upon the National Government primarily in order to protect freedom of commerce from State interference. The four dissenting Justices in the Lottery Case (decided in 1903) endorsed this view in the following words: "It is argued that the power to regulate commerce among the several States is the same as the power to regulate commerce with foreign nations, and among the Indian tribes. But is its scope the same? * * *, the power to regulate commerce with foreign nations and the power to regulate interstate commerce, are to be taken _diverso intuitu_, for the latter was intended to secure equality and freedom in commercial intercourse as between the States, not to permit the creation of impediments to such intercourse; while the former clothes Congress with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, generally speaking, to no implied or reserved power in the States. The laws which would be necessary and proper in the one case, would not be necessary or proper in the other. * * * But that does not challenge the legislative power of a sovereign nation to exclude foreign persons or commodities, or place an embargo, perhaps not permanent, upon foreign ships or manufactures. * * * The same view must be taken as to commerce with Indian tribes. There is no reservation of police powers or any other to a foreign nation or to an Indian tribe, and the scope of the power is not the same as that over interstate commerce."[330] And twelve years later Chief Justice White, speaking for the Court, expressed the same view, as follows: "In the argument reference is made to decisions of this court dealing with the subject of the power of Congress to regulate interstate commerce, but the very postulate upon which the authority of Congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad distinction which exists between the two powers and therefore the cases cited and many more which might be cited announcing the principles which they uphold have obviously no relation to the question in hand."[331] But dicta to the contrary are much more numerous and span a far longer period of time. Thus Chief Justice Taney wrote in 1847: "The power to regulate commerce among the several States is granted to Congress in the same clause, and by the same words, as the power to regulate commerce with foreign nations, and is coextensive with it."[332] And nearly fifty years later Justice Field, speaking for the Court, said: "The power to regulate commerce among the several States was granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations."[333] Today it is firmly established doctrine that the power to regulate commerce, whether with foreign nations or among the several States comprises the power to restrain or prohibit it at all times for the welfare of the public, provided only the specific limitations imposed upon Congress's powers, as by the due process clause of the Fifth Amendment, are not transgressed.[334] Nor does the power to regulate commerce stop with, nor in fact is it most commonly exercised in, measures designed to outlaw some branch of commerce. In the words of the Court: It is the power to provide by appropriate legislation for its "protection and advancement";[335] to adopt measures "to promote its growth and insure its safety";[336] "to foster, protect, control and restrain, [commerce]."[337] This protective power has, moreover, two dimensions. In the first place, it includes the power to reach and remove every conceivable obstacle to or restriction upon interstate and foreign commerce from whatever source arising, whether it results from unfavorable conditions within the States or from State legislative policy, like the monopoly involved in Gibbons _v._ Ogden; or from both combined. In the second place, it extends--as does also the power to restrain commerce--to the instruments and agents by which commerce is carried on; nor are such instruments and agents confined to those which were known or in use when the Constitution was adopted.[338] INSTRUMENTS OF COMMERCE The applicability of Congress's power to the agents and instruments of commerce is implied in Marshall's opinion in Gibbons _v._ Ogden,[339] where the waters of the State of New York in their quality as highways of interstate and foreign transportation are held to be governed by the overruling power of Congress. Likewise, the same opinion recognizes that in "the progress of things," new and other instruments of commerce will make their appearance. When the Licensing Act of 1793 was passed, the only craft to which it could apply were sailing vessels, but it and the power by which it was enacted were, Marshall asserted, indifferent to the "principle" by which vessels were moved. Its provisions therefore reached steam vessels as well. A little over half a century later the principle embodied in this holding was given its classic expression in the opinion of Chief Justice Waite in the case of the Pensacola Telegraph Co. _v._ Western Union Co.,[340] a case closely paralleling Gibbons _v._ Ogden in other respects also. The passage alluded to reads as follows: "The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation."[341] The Radio Act of 1927 whereby "all forms of interstate and foreign radio transmissions within the United States, its Territories and possessions" were brought under national control, affords another illustration. Thanks to the foregoing doctrine the measure met no serious constitutional challenge either on the floors of Congress or in the Courts.[342] Congressional Regulation of Waterways NAVIGATION In the case of Pennsylvania _v._ Wheeling & Belmont Bridge Co.,[343] decided in 1852, the Court, on the application of the complaining State, acting as representative of the interests of its citizens, granted an injunction requiring that a bridge, erected over the Ohio under a charter from the State of Virginia, either be altered so as to admit of free navigation of the river, or else be entirely abated. The decision was justified by the Court on the basis both of the commerce clause and of a compact between Virginia and Kentucky, whereby both these States had agreed to keep the Ohio River "free and common to the citizens of the United States." The injunction was promptly rendered inoperative by an act of Congress declaring the bridge to be "a lawful structure" and requiring all vessels navigating the Ohio to be so regulated as not to interfere with it.[344] This act the Court sustained as within Congress's power under the commerce clause, saying: "So far, * * *, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of Congress, they [the said acts] are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, [it] is not so in the contemplation of law. * * * That body [Congress] having in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, State and federal, which, if not sufficient, certainly none can be found in our system of government."[345] In short, it is Congress and not the Court which is authorized by the Constitution to regulate commerce. The law and doctrine of the earlier cases with respect to the fostering and protection of navigation are well summed up in the following frequently cited passage from the Court's opinion in Gilman _v._ Philadelphia,[346] decided in 1866. "Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England."[347] Thus Congress was within its powers in vesting the Secretary of War with power to determine whether a structure of any nature in or over a navigable stream is an obstruction to navigation and to order its abatement if he so finds.[348] Nor is the United States required to compensate the owners of such structures for their loss, since they were always subject to the servitude represented by Congress's powers over commerce; and the same is true of the property of riparian owners which is damaged.[349] And while it was formerly held that lands adjoining nonnavigable streams were not subject to the above mentioned servitude,[350] this rule has been impaired by recent decisions;[351] and at any rate it would not apply as to a stream which had been rendered navigable by improvements.[352] In exercising its power to foster and protect navigation Congress legislates primarily on things external to the act of navigation. But that act itself and the instruments by which it is accomplished are also subject to Congress's power if and when they enter into or form a part of "commerce among the several States." When does this happen? Words quoted above from the Court's opinion in the Gilman case answered this question to some extent; but the decisive answer to it was returned five years later in the case of The "Daniel Ball."[353] Here the question at issue was whether an act of Congress, passed in 1838 and amended in 1852, which required that steam vessels engaged in transporting passengers or merchandise upon the "bays, lakes, rivers, or other navigable waters of the United States," applied to the case of a vessel which navigated only the waters of the Grand River, a stream which lies entirely in the State of Michigan. Argued counsel for the vessel: "The navigable rivers of the United States pass through States, they form their boundary lines, they are not in any one State, nor the exclusive property of any one, but are common to all. To make waters navigable waters of the United States, some other incident must attach to them besides the territorial and the capability for public use. This term contrasts with _domestic_ waters of the United States, and implies, not simply that the waters are public and within the Union, but that they have attached to them some circumstance that brings them within the scope of the sovereignty of the United States as defined by the Constitution." Then as a sort of _reductio ad absurdum_ counsel added: "* * * if merely because a stream is a highway it becomes a navigable water of the United States, in a sense that attaches to it and to the vessels trading upon it the regulating control of Congress, then every highway must be regarded as a highway of the United States, and the vehicles upon _it_ must be subject to the same control. But this will not be asserted on the part of the Government."[354] The Court answered: "In this case it is admitted that the steamer was engaged in shipping and transporting down Grand River, goods destined and marked for other States than Michigan, and in receiving and transporting up the river goods brought within the State from without its limits; * * * So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan and destined to places within that State, she was engaged in commerce between the States, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced."[355] Turning then to counsel's _reductio ad absurdum_, the Court added: "We answer that the present case relates to transportation on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation. And we answer further, that we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the States, when the agency extends through two or more States, and when it is confined in its action entirely within the limits of a single State. If its authority does not extend to an agency in such commerce, when that agency is confined within the limits of a State, its entire authority over interstate commerce may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of a State, and leaving it at the boundary line at the other end, the Federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter."[356] In short, it was admitted inferentially, that the principle of the decision would apply to land transportation; but the actual demonstration of the fact still awaited some years.[357] See _infra_. HYDROELECTRIC POWER As a consequence, in part, of its power to forbid or remove obstructions to navigation in the navigable waters of the United States, Congress has acquired the right to develop hydroelectric power, and the ancillary right to sell it to all takers. By a long-standing doctrine of Constitutional Law the States possess dominion over the beds of all navigable streams within their borders,[358] but on account of the servitude which Congress's power to regulate commerce imposes upon such streams, they are practically unable, without the assent of Congress, to utilize their prerogative for power development purposes. Sensing, no doubt, that controlling power to this end must be attributed to some government in the United States and that "in such matters there can be no divided empire,"[359] the Court held, in 1913, in United States _v._ Chandler-Dunbar Co.,[360] that in constructing works for the improvement of the navigability of a stream, Congress was entitled, as a part of a general plan, to authorize the lease or sale of such excess water power as might result from the conservation of the flow of the stream. "If the primary purpose is legitimate," it said, "we can see no sound objection to leasing any excess of power over the needs of the government. The practice is not unusual in respect to similar public works constructed by State governments."[361] Congress's Jurisdiction Over Navigable Streams Today Since the Chandler-Dunbar case the Court has come, in effect, to hold that it will sustain any act of Congress which purports to be for the improvement of navigation whatever other purposes it may also embody; nor does the stream involved have to be one which is "navigable in its natural state." Such, at least, seems to be the algebraic sum of its holdings in Arizona _v._ California,[362] decided in 1931, and in the United States _v._ Appalachian Electric Power Co.,[363] decided in 1940. In the former the Court, speaking through Justice Brandeis, said that it was not free to inquire into the motives "which induced members of Congress to enact the Boulder Canyon Project Act," adding: "As the river is navigable and the means which the Act provides are not unrelated to the control of navigation, * * *, the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. * * * And the fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power."[364] And in the Appalachian Electric Power case, the Court, abandoning previous holdings which had laid down the doctrine that to be subject to Congress's power to regulate commerce a stream must be "navigable in fact," said: "A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken," provided there must be a "balance between cost and need at a time when the improvement would be useful. * * * Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. * * * Nor is it necessary for navigability that the use should be continuous. * * * Even absence of use over long periods of years, because of changed conditions, * * * does not affect the navigability of rivers in the constitutional sense."[365] Purposes for Which Power May be Exercised Furthermore, the Court defined the purposes for which Congress may regulate navigation in the broadest terms, as follows: "It cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. * * * That authority is as broad as the needs of commerce. * * * Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control."[366] These views the Court has since reiterated.[367] Nor is it by virtue of Congress's power over navigation alone that the National Government may develop super-power. Its war powers and power of expenditure in furtherance of the common defense and the general welfare supplement its powers over commerce in this respect.[368] Congressional Regulation of Land Transportation EARLY ACTS; FEDERAL PROVISION FOR HIGHWAYS The acquisition and settlement of California stimulated Congress some years before the Civil War to authorize surveys of possible routes for railway lines to the Pacific; but it was not until 1862, in the midst of war, with its menace of a general dissolution of the Union, that more decisive action was taken. That year Congress voted aid in the construction of a line from Missouri River to the Pacific; and four years later it chartered the Union Pacific Company.[369] First and last, litigation growing out of this type of legislation has resulted in the establishment in judicial decision of the following propositions: _First_, that Congress may provide highways for interstate transportation (earlier, as well as today, this result might have followed from Congress's power of spending, independently of the commerce clause, as well as from its war and postal powers, which were also invoked by the Court in this connection); _second_, that it may charter private corporations for the purpose of doing the same thing; _third_, that it may vest such corporations with the power of eminent domain in the States; and _fourth_, that it may exempt their franchises from State taxation.[370] BEGINNINGS OF FEDERAL RAILWAY REGULATION Congress began regulating the railroads of the country in a more positive sense in 1866. By the so-called Garfield Act of that year "every railroad company in the United States, whose road is operated by steam," was authorized by Congress "* * * to connect with roads of other States so as to form continuous lines for the transportation of passengers, freight, troops, governmental supplies, and mails, to their destination";[371] while by an act passed on July 24 of the same year it was ordered, "in the interest of commerce and the convenient transmission of intelligence * * * by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as State interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one State for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the National Government for this national privilege."[372] Another act of the same period provided that "no railroad company within the United States whose road forms any part of a line of road over which cattle, sheep, swine, or other animals are conveyed from one State to another, or the owners or masters of steam, sailing, or other vessels carrying or transporting cattle, sheep, swine, or other animals from one State to another, shall confine the same in cars, boats, or vessels of any description, for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes."[373] REGULATION OF RAILROAD RATES: THE INTERSTATE COMMERCE COMMISSION On account of the large element of "fixed charges" which enters into the setting of rates by railway companies, competition between lines for new business was from the first very sharp, and resulted in many evils which, in the early 70's, led in the Middle West to the enactment by the State legislatures of the so-called "Granger Laws"; and in the famous "Granger Cases," headed by Munn _v._ Illinois,[374] the Court at first sustained this legislation, in relation to both the commerce clause and the due process of law clause of Amendment XIV. The principal circumstance, however, which shaped the Court's attitude toward the "Granger Laws" had, by a decade later, disappeared, the fact, namely, that originally the railroad business was largely in local hands. In consequence, first, of the panic of 1873, and then of the panic of 1885, hundreds of these small lines went into bankruptcy, from which they emerged consolidated into great interstate systems. The result for the Court's interpretation of the commerce clause was determinative. In the case of Wabash, St. Louis and Pacific R. Co. _v._ Illinois,[375] decided in 1886, it was ruled that a State may not regulate charges for the carriage even within its own boundaries of goods brought from without the State or destined to points outside it; that in this respect Congress's power over interstate commerce was exclusive. The following year, Congress, responding to a widespread public demand, passed the original Interstate Commerce Act.[376] By this measure a commission of five was created with authority to pass upon the "reasonableness" of all charges by railroads for the transportation of goods or persons in interstate commerce and to order the discontinuance of all such charges as it found to be "unreasonable," or otherwise violative of the provisions of the act. In Interstate Commerce Commission _v._ Brimson,[377] decided in 1894, the validity of the Commission as a means "necessary and proper" for the enforcement of Congress's power to regulate commerce among the States was sustained, as well as its right to enter the courts of the United States in order to secure process for the execution of its orders. Later decisions of the Court, however, including one in which the act was construed not to give the Commission power to set reasonable maximum rates in substitution for those found by it to be unreasonable, disappointed earlier expectations.[378] The history of the Commission as an effective instrument of government dates from the Hepburn Act of 1906[379] which was followed four years later by the Mann-Elkins Act.[380] By the former the Commission was explicitly endowed with the power, after a full hearing on a complaint made to it, "to determine and prescribe just and reasonable" maximum rates. By the latter it was further authorized to set such rates on its own initiative, and without waiting for a complaint; while any increase of rates by a carrier was made subject to suspension by the Commission until its approval could be obtained. At the same time, the Commission's jurisdiction was extended to telegraphs, telephones and cables.[381] THE INTERSTATE COMMERCE COMMISSION TODAY The powers of the Commission, which has been gradually increased to a body of eleven, are today largely defined in the Transportation Act of February 28, 1920. By that act they were extended not only to all "railroads," comprehensively defined, but also to the following additional categories of "'common carriers' * * * all pipeline companies; telegraph, telephone, and cable companies operating by wire or wireless [_See_ note 3 above][Transcriber's Note: Refers to Article I, Footnote [381].]; express companies; sleeping-car companies; and all persons, natural or artificial, engaged in such transportation or transmission as aforesaid as common carriers for hire." The jurisdiction of the Commission covers not only the characteristic activities of such carriers in commerce among the States, but also the issuance of securities by them, and all consolidations of existing companies, or lines. Furthermore, for the first time, the Commission was put under the injunction, in exercising its control over rates and charges, to "give due consideration, among other things, to the transportation needs of the country and the necessity (under honest, efficient and economical management of existing transportation facilities) of enlarging such facilities in order to provide the people of the United States with adequate transportation."[382] Railway rate control itself, which was originally entered upon by the National Government exclusively from the point of view of restraint, has thus been assimilated to the idea of "fostering and promoting" transportation. Two types of constitutional questions have presented themselves under the legislation just passed in review: 1. Those arising out of the safeguards which the Bill of Rights throws about property rights; 2. Those arising out of the intermingling of the interstate and intrastate operations of the same carriers, and the resulting tangency of State with national power. Only the latter are considered at this point. THE SHREVEPORT CASE Section 1 of the act of 1887 contains the proviso "that the provisions of this act shall not apply to 'transportation' wholly within the State." Section 3 of the act prohibits "any common carrier subject to the provisions" of the act from giving "any unreasonable preference or advantage" to any person, firm, or locality. In the Shreveport Case,[383] decided in 1914, the Commission, reading § 3 independently of § 1, had ordered several Texas lines to increase certain of their rates between points in Texas till they should approximate rates already approved by the Commission to adjoining points in Louisiana. The latter rates, being interstate, were admittedly subject to the Commission. The local rates were as clearly within the normal jurisdiction of the State, and had in fact been set by the Texas Railway Commission. The Court found that the Interstate Commerce Commission had not exceeded its statutory powers. The constitutional objection to the Commission's action was stated thus: "That Congress is impotent to control the intrastate charges of an interstate carrier even to the extent necessary to prevent injurious discrimination against interstate traffic." This objection the Court met, as follows: "Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority and the State, and not the Nation, would be supreme in the national field."[384] This, the Court continued, "is not to say that Congress possesses the authority to regulate the internal commerce of a State as such, but that it does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled."[385] THE ACT OF 1920 AND STATE RAILWAY RATE REGULATION The power of the Commission under § 3 of the act of 1887, as interpreted in the Shreveport Case, was greatly enlarged by § 416 of the act of 1920, which authorizes the Commission to remove "any undue, unreasonable, or unjust discrimination against interstate or foreign commerce." Thus, commerce as a whole, instead of specific firms or localities, is made the beneficiary of the restriction. In the Wisconsin R.R. Comm. _v._ Chicago, B. & Q.R.R. Co.,[386] the Court held that this section sustained the Interstate Commerce Commission in annulling intrastate passenger rates which it found to be unduly low, in comparison with rates which the Commission had established for interstate travel, and so tending to thwart, in deference to a merely local interest, the general purpose of the act to maintain an efficient transport service for the benefit of the country at large.[387] REGULATION OF OTHER AGENTS OF CARRIAGE AND COMMUNICATION In the Pipe Line Cases, decided in 1914,[388] the Court affirmed the power of Congress to regulate the transportation of oil and gas in pipe lines from one State to another and held that this power applies to such transportation even though the oil (or gas) in question was the property of the owner of the lines.[389] Thirteen years later, in 1927, the Court ruled that an order by a State commission fixing rates on electric current generated within the State and sold to a distributor in another State was invalid as imposing a burden on interstate commerce, thus holding impliedly that Congress' power to regulate the transmission of electric current from one State to another carried with it the power to regulate the price of such electricity.[390] Proceeding on this implication Congress, in the Federal Power Act of 1935,[391] conferred upon the Federal Power Commission the power to govern the wholesale distribution of electricity in interstate commerce; and three years later vested in the same body like power over natural gas moving in interstate commerce.[392] In Federal Power Commission _v._ Natural Gas Pipeline Company,[393] the power of the Commission to set the prices at which gas, originating in one State and transported into another, should be sold to distributors wholesale in the latter State, was sustained by the Court in the following terms: "The argument that the provisions of the statute applied in this case are unconstitutional on their face is without merit. The sale of natural gas originating in the State and its transportation and delivery to distributors in any other State constitutes interstate commerce, which is subject to regulation by Congress. * * * It is no objection to the exercise of the power of Congress that it is attended by the same incidents which attend the exercise of the police power of a State. The authority of Congress to regulate the prices of commodities in interstate commerce is at least as great under the Fifth Amendment as is that of the States under the Fourteenth to regulate the prices of commodities in intrastate commerce."[394] Other acts regulative of interstate commerce and communication which belong to this period are the Federal Communications Act of 1934, which regulates, through the Federal Communications Commission,[395] "interstate and foreign communication by wire and radio"; the Federal Motor Carrier Act of 1935, which, through the Interstate Commerce Commission, governs the transportation of persons and property by motor vehicle common carriers;[396] the Civil Aeronautics Act of 1938, enacted for the purpose of bringing under the control of a central agency, called "the Civil Aeronautics Authority" (functioning through the Civil Aeronautics Administrator and the Civil Aeronautics Board) all phases of airborne commerce, foreign and interstate.[397] None of these measures have provoked challenge to the power of Congress to enact them. ACTS OF CONGRESS PROTECTIVE OF LABOR ENGAGED IN INTERSTATE TRANSPORTATION In the course of the years 1903 to 1908 Congress enacted a series of such measures which were notable both on account of their immediate purpose and as marking the entry of the National Government into the field of labor legislation. The Safety Appliance Act of 1893,[398] which applied only to cars and locomotives engaged in moving interstate traffic, was amended in 1903 to embrace "all trains, locomotives, tenders, cars," etc., "used on any railway engaged in interstate commerce * * * and to all other locomotives * * * cars," etc., "used in connection therewith."[399] In Southern Railway Company _v._ United States,[400] the validity of this extension of the act was challenged. The Court sustained the measure as being within Congress's power, saying: "* * * this is so, not because Congress possesses any power to regulate intrastate commerce as such, but because its power to regulate interstate commerce is plenary and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transportation, no matter what may be the source of the dangers which threaten it. That is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate commerce."[401] Four years later the Hours of Service Act of 1907[402] was passed, requiring, as a safety measure, that carriers engaged in the transportation of passengers or property by railroad in interstate or foreign commerce should not work their employees for longer periods than those prescribed by the Act. In sustaining this legislation the Court, speaking through Justice Hughes, said: "The fundamental question here is whether a restriction upon the hours of labor of employés who are connected with the movement of trains in interstate transportation is comprehended within this sphere of authorized legislation. This question admits of but one answer. The length of hours of service has direct relation to the efficiency of the human agencies upon which protection of life and property necessarily depends. * * * In its power suitably to provide for the safety of the employés and travelers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the class defined by the act."[403] But by far the most notable of these safety measures were the Federal Employers Liability Acts of 1906 and 1908,[404] the second of which merely reenacted the first with certain "unconstitutional" features eliminated. What the amended act does, in short, is to modify, in the case of injuries incurred by the employees of interstate carriers while engaged in interstate commerce, the defenses that had hitherto been available to the carriers at common law. The principal argument against the acts was that the commerce clause afforded no basis for an attempt to regulate the relation of master and servant, which had heretofore in all cases fallen to the reserved powers of the States; that indeed the rules of common law modified or abrogated by the act existed solely under State authority, and had always been enforced, in the main, in the courts of the States.[405] Countering this argument, the Court, speaking by Justice Van Devanter, quoted the following passage from the brief of the Solicitor-General: "Interstate commerce--if not always, at any rate when the commerce is transportation--is an act. Congress, of course, can do anything which, in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable or more efficient. The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. If the agents or instruments are destroyed while they are doing the act, commerce is stopped; if the agents or instruments are interrupted, commerce is interrupted; if the agents or instruments are not of the right kind or quality, commerce in consequence becomes slow or costly or unsafe or otherwise inefficient; and if the conditions under which the agents or instruments do the work of commerce are wrong or disadvantageous, those bad conditions may and often will prevent or interrupt the act of commerce or make it less expeditious, less reliable, less economical and less secure. Therefore, Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear, upon the reliability or promptness or economy or security or utility of the interstate commerce act."[406] The Adair Case But while the idea expressed here that the human agents of commerce, in the sense of transportation, are instrumentalities of it, and so, in that capacity, within the protective power of Congress, signalized the entrance of Congress into the field of labor legislation, the Court was not at the time prepared to give the idea any considerable scope. Pertinent in this connection is the case of Adair _v._ United States,[407] which was decided between the two Employers' Liability Cases. Here was involved the validity of § 10 of the "Erdman Act" of 1898,[408] by which it was made a misdemeanor for a carrier or agent thereof to require of an employee, as a condition of employment, that he should not become or remain a member of a trade union, or to threaten him with loss of employment if he should become or remain a member. This proviso the Court held not to be a regulation of commerce, there being no connection between an employee's membership in a labor organization and the carrying on of interstate commerce. Twenty-two years later, however, in 1930, the Court conceded that the connection between interstate commerce and union membership was a real and substantial one, and on that ground sustained the power of Congress in the Railway Labor Act of 1926[409] to prevent employers from interfering with the right of employees to select freely their own collective bargaining representatives.[410] The Railroad Retirement Act Still pursuing the idea of protecting commerce and the labor engaged in it concurrently, Congress, by the Railroad Retirement Act of June 27, 1934,[411] ordered the compulsory retirement of superannuated employees of interstate carriers, and provided that they be paid pensions out of a fund comprising compulsory contributions from the carriers and their present and future employees. In Railroad Retirement Board _v._ Alton R.R. Company,[412] however, a closely divided Court held this legislation to be in excess of Congress's power to regulate commerce and contrary to the due process clause of Amendment V. Said Justice Roberts for the majority: "We feel bound to hold that a pension plan thus imposed is in no proper sense a regulation of the activity of interstate transportation. It is an attempt for social ends to impose by sheer fiat noncontractual incidents upon the relation of employer and employee, not as a rule or regulation of commerce and transportation between the States, but as a means of assuring a particular class of employees against old age dependency. This is neither a necessary nor an appropriate rule or regulation affecting the due fulfillment of the railroads' duty to serve the public in interstate transportation."[413] Chief Justice Hughes, speaking for the dissenters, contended, on the contrary, that "the morale of the employees [had] an important bearing upon the efficiency of the transportation service." He added: "The fundamental consideration which supports this type of legislation is that industry should take care of its human wastage, whether that is due to accident or age. That view cannot be dismissed as arbitrary or capricious. It is a reasoned conviction based upon abundant experience. The expression of that conviction in law is regulation. When expressed in the government of interstate carriers, with respect to their employees likewise engaged in interstate commerce, it is a regulation of that commerce. As such, so far as the subject matter is concerned, the commerce clause should be held applicable."[414] Under subsequent legislation, an excise is levied on interstate carriers and their employees, while by separate but parallel legislation a fund is created in the Treasury out of which pensions are paid along the lines of the original plan. The constitutionality of this scheme appears to be taken for granted in Railroad Retirement Board _v._ Duquesne Warehouse Company.[415] BILLS OF LADING; THE FERGER CASE Some years earlier the Court had had occasion in United States _v._ Ferger,[416] decided in 1919, to reiterate the rule laid down in the Southern Railway Case, that Congress's protective power over interstate commerce reaches all kinds of obstructions whatever the source of their origin. Ferger and associates had been indicted under a federal statute for issuing a false bill of lading, to cover a fictitious shipment in interstate commerce. Their defense was that, since there could be no commerce in a fraudulent bill of lading, therefore Congress's power could not reach their alleged offense, a contention which Chief Justice White, speaking for the Court, answered thus: "But this mistakenly assumes that the power of Congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it. We say mistakenly assumes, because we think it clear that if the proposition were sustained it would destroy the power of Congress to regulate, as obviously that power, if it is to exist, must include the authority to deal with obstructions to interstate commerce (_In re Debs_, 158 U.S. 564) and with a host of other acts which, because of their relation to and influence upon interstate commerce, come within the power of Congress to regulate, although they are not interstate commerce in and of themselves. * * * That as instrumentalities of interstate commerce, bills of lading are the efficient means of credit resorted to for the purpose of securing and fructifying the flow of a vast volume of interstate commerce upon which the commercial intercourse of the country, both domestic and foreign, largely depends, is a matter of common knowledge as to the course of business of which we may take judicial notice. Indeed, that such bills of lading and the faith and credit given to their genuineness and the value they represent are the producing and sustaining causes of the enormous number of transactions in domestic and foreign exchange, is also so certain and well known that we may notice it without proof."[417] Congressional Regulation of Commerce as Traffic THE SHERMAN ACT; THE "SUGAR TRUST CASE" Congress's chief effort to regulate commerce in the primary sense of "traffic" is embodied in the Sherman Antitrust Act of 1890, the opening section of which declares "every contract, combination in the form of trust or otherwise," or "conspiracy in restraint of trade and commerce among the several States, or with foreign nations" to be "illegal," while the second section makes it a misdemeanor for anybody to "monopolize or attempt to monopolize any part of such commerce."[418] The act was passed to curb the growing tendency to form industrial combinations and the first case to reach the Court under it was the famous "Sugar Trust Case," United States _v._ E.C. Knight Co.[419] Here the Government asked for the cancellation of certain agreements, whereby, through purchases of stock in other companies, the American Sugar Refining Company, had "acquired," it was conceded, "nearly complete control of the manufacture of refined sugars in the United States." The question of the validity of the act was not expressly discussed by the Court, but was subordinated to that of its proper construction. So proceeding, the Court, in pursuance of doctrines of Constitutional Law which were then dominant with it, turned the act from its intended purpose and destroyed its effectiveness for several years, as that of the Interstate Commerce Act was being contemporaneously impaired. The following passage early in Chief Justice Fuller's opinion for the Court, sets forth the conception of the Federal System that controlled the decision: "It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the States as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had better be borne, than risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality."[420] In short, what was needed, the Court felt, was a hard and fast line between the two spheres of power, and in the following series of propositions it endeavored to lay down such a line: (1) production is always local, and under the exclusive domain of the States; (2) commerce among the States does not commence until goods "commence their final movement from their State of origin to that of their destination"; (3) the sale of a product is merely an incident of its production and while capable of "bringing the operation of commerce into play," affects it only incidentally; (4) such restraint as would reach commerce, as above defined, in consequence of combinations to control production "in all its forms," would be "indirect, however inevitable and whatever its extent," and as such beyond the purview of the act.[421] Applying then the above reasoning to the case before it, the Court proceeded: "The object [of the combination] was manifestly private gain in the manufacture of the commodity, but not through the control of interstate or foreign commerce. It is true that the bill alleged that the products of these refineries were sold and distributed among the several States, and that all the companies were engaged in trade or commerce with the several States and with foreign nations; but this was no more than to say that trade and commerce served manufacture to fulfil its function. Sugar was refined for sale, and sales were probably made at Philadelphia for consumption, and undoubtedly for resale by the first purchasers throughout Pennsylvania and other States, and refined sugar was also forwarded by the companies to other States for sale. Nevertheless it does not follow that an attempt to monopolize, or the actual monopoly of, the manufacture was an attempt, whether executory or consummated, to monopolize commerce, even though, in order to dispose of the product, the instrumentality of commerce was necessarily invoked. There was nothing in the proofs to indicate any intention to put a restraint upon trade or commerce, and the fact, as we have seen that trade or commerce might be indirectly affected was not enough to entitle complainants to a decree."[422] THE SHERMAN ACT REVISED Four years later occurred the case of Addyston Pipe and Steel Co. _v._ United States,[423] in which the Antitrust Act was successfully applied as against an industrial combination for the first time. The agreements in the case, the parties to which were manufacturing concerns, effected a division of territory among them, and so involved, it was held, a "direct" restraint on the distribution and hence of the transportation of the products of the contracting firms. The holding, however, did not question the doctrine of the earlier case, which in fact continued substantially undisturbed until 1905, when Swift and Co. _v._ United States,[424] was decided. THE "CURRENT OF COMMERCE" CONCEPT: THE SWIFT CASE Defendants in the Swift case were some thirty firms engaged in Chicago and other cities in the business of buying livestock in their stockyards, in converting it at their packing houses into fresh meat, and in the sale and shipment of such fresh meat to purchasers in other States. The charge against them was that they had entered into a combination to refrain from bidding against each other in the local markets, to fix the prices at which they would sell, to restrict shipments of meat, and to do other forbidden acts. The case was appealed to the Supreme Court on defendants' contention that certain of the acts complained of were not acts of interstate commerce and so did not fall within a valid reading of the Sherman Act. The Court, however, sustained the Government on the ground that the "scheme as a whole" came within the act, and that the local activities alleged were simply part and parcel of this general scheme.[425] Referring to the purchases of livestock at the stockyards, the Court, speaking by Justice Holmes, said: "Commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce."[426] Likewise the sales alleged of fresh meat at the slaughtering places fell within the general design. Even if they imported a technical passing of title at the slaughtering places, they also imported that the sales were to persons in other States, and that shipments to such States were part of the transaction.[427] Thus, sales of the type which in the Sugar Trust Case were thrust to one side as immaterial from the point of view of the law, because they enabled manufacture "to fulfill its function," were here treated as merged in an interstate commerce stream. Thus, the concept of commerce as _trade_, that is, as _traffic_, again entered the Constitutional Law picture, with the result that conditions which directly affected interstate trade could not be dismissed on the ground that they affected interstate commerce, in the sense of interstate _transportation_, only "indirectly." Lastly, the Court added these significant words: "But we do not mean to imply that the rule which marks the point at which State taxation or regulation becomes permissible necessarily is beyond the scope of interference by Congress in cases where such interference is deemed necessary for the protection of commerce among the States."[428] That is to say, the line that confines State power from one side does not always confine national power from the other. For even though the line accurately divides the subject matter of the complementary spheres, still national power is always entitled to take on such additional extension as is requisite to guarantee its effective exercise, and is furthermore supreme. THE DANBURY HATTERS CASE In this respect, the Swift Case only states what the Shreveport Case was later to declare more explicitly; and the same may be said of an ensuing series of cases in which combinations of employees engaged in such intrastate activities as manufacturing, mining, building construction, and the distribution of poultry were subjected to the penalties of the Sherman Act because of the effect or intended effect of their activities on interstate commerce.[429] STOCKYARDS AND GRAIN FUTURES ACTS In 1921 Congress passed the Packers and Stockyards Act[430] whereby the business of commission men and livestock dealers in the chief stockyards of the country was brought under national supervision; and the year following it passed the Grain Futures Act[431] whereby exchanges dealing in grain futures were subjected to control. The decisions of the Court sustaining these measures both built directly upon the Swift Case. In Stafford _v._ Wallace,[432] which involved the former act, Chief Justice Taft, speaking for the Court, said: "The object to be secured by the act is the free and unburdened flow of livestock from the ranges and farms of the West and Southwest through the great stockyards and slaughtering centers on the borders of that region, and thence in the form of meat products to the consuming cities of the country in the Middle West and East, or, still as livestock, to the feeding places and fattening farms in the Middle West or East for further preparation for the market."[433] The stockyards, therefore, were "not a place of rest or final destination." They were "but a throat through which the current flows," and the sales there were not merely local transactions. "They do not stop the flow;--but, on the contrary" are "indispensable to its continuity."[434] In Chicago Board of Trade _v._ Olsen,[435] involving the Grain Futures Act, the same course of reasoning was repeated. Speaking of the Swift Case, Chief Justice Taft remarked: "That case was a milestone in the interpretation of the commerce clause of the Constitution. It recognized the great changes and development in the business of this vast country and drew again the dividing line between interstate and intrastate commerce where the Constitution intended it to be. It refused to permit local incidents of a great interstate movement, which taken alone were intrastate, to characterize the movement as such."[436] Of special significance, however, is the part of the opinion which was devoted to showing the relation between future sales and cash sales, and hence the effect of the former upon the interstate grain trade. The test, said the Chief Justice, was furnished by the question of price. "The question of price dominates trade between the States. Sales of an article which affect the country-wide price of the article directly affect the country-wide commerce in it."[437] Thus a practice which demonstrably affects prices would also affect interstate trade "directly," and so, even though local in itself, would fall within the regulatory power of Congress. In the following passage, indeed, Chief Justice Taft whittles down, in both cases, the "direct-indirect" formula to the vanishing point: "Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent."[438] And it was in reliance on the doctrine of these cases that Congress first set to work to combat the Depression in 1933 and the years immediately following. But in fact, much of its legislation at this time marked a wide advance upon the measures just passed in review. They did not stop with regulating traffic among the States and the instrumentalities thereof; they also essayed to govern production and industrial relations in the field of production. Confronted with this revolutionary claim to power on Congress' part, the Court again deemed itself called upon to define a limit to the commerce power that would save to the States their historical sphere, and especially their customary monopoly of legislative power in relation to industry and labor management. THE SECURITIES AND EXCHANGE COMMISSION Not all antidepression legislation, however, was of this revolutionary type. The Securities Exchange Act of 1934[439] and the Public Utility Company Act ("Wheeler-Rayburn Act") of 1935[440] were not. The former creates the Securities and Exchange Commission, and authorizes it to lay down regulations designed to keep dealing in securities honest and above-board and closes the channels of interstate commerce and the mails to dealers refusing to register under the act. The latter requires, by sections 4 (a) and 5, the companies which are governed by it to register with the Securities and Exchange Commission and to inform it concerning their business, organization and financial structure, all on pain of being prohibited use of the facilities of interstate commerce and the mails; while by section 11, the so-called "death sentence" clause, the same act closes after a certain date the channels of interstate communication to certain types of public utility companies whose operations, Congress found, were calculated chiefly to exploit the investing and consuming public. All these provisions have been sustained,[441] Gibbons _v._ Ogden, furnishing the Court its principal reliance.[442] Congressional Regulation of Production and Industrial Relations ANTIDEPRESSION LEGISLATION In the following words of Chief Justice Hughes, spoken in a case which was decided a few days after President Franklin D. Roosevelt's first inauguration, the problem which confronted the new Administration was clearly set forth: "When industry is grievously hurt, when producing concerns fail, when unemployment mounts and communities dependent upon profitable production are prostrated, the wells of commerce go dry."[443] THE NATIONAL INDUSTRIAL RECOVERY ACT The initial effort of Congress to deal with this situation was embodied in the National Industrial Recovery Act of June 16, 1933.[444] The opening section of the act asserted the existence of "a national emergency productive of widespread unemployment and disorganization of industry which" burdened "interstate and foreign commerce," affected "the public welfare," and undermined "the standards of living of the American people." To effect the removal of these conditions the President was authorized, upon the application of industrial or trade groups, to approve "codes of fair competition," or to prescribe the same in cases where such applications were not duly forthcoming. Among other things such codes, of which eventually more than 700 were promulgated, were required to lay down rules of fair dealing with customers and to furnish labor certain guarantees respecting hours, wages and collective bargaining. For the time being business and industry were to be cartelized on a national scale. THE SCHECHTER CASE In the case of Schechter Corp. _v._ United States,[445] one of these codes, the Live Poultry Code, was pronounced unconstitutional. Although it was conceded that practically all poultry handled by the Schechters came from outside the State, and hence via interstate commerce, the Court held, nevertheless, that once the chickens came to rest in the Schechters' wholesale market interstate commerce in them ceased. The act, however, also purported to govern business activities which "affected" interstate commerce. This, Chief Justice Hughes held, must be taken to mean "directly" affect such commerce: "the distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, * * *, there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government."[446] In short, the case was governed by the ideology of the Sugar Trust Case, which was not mentioned in the Court's opinion.[447] THE AGRICULTURAL ADJUSTMENT ACT Congress' second attempt to combat the Depression comprised the Agricultural Adjustment Act of 1933.[448] As is pointed out elsewhere the measure was set aside as an attempt to regulate production, a subject which was held to be "prohibited" to the United States by Amendment X.[449] _See_ pp. 917-918. THE BITUMINOUS COAL CONSERVATION ACT The third measure to be disallowed was the Guffey-Snyder Bituminous Coal Conservation Act of 1935.[450] The statute created machinery for the regulation of the price of soft coal, both that sold in interstate commerce and that sold "locally," and other machinery for the regulation of hours of labor and wages in the mines. The clauses of the act dealing with these two different matters were declared by the act itself to be separable so that the invalidity of the one set would not affect the validity of the other; but this strategy was ineffectual. A majority of the Court, speaking by Justice Sutherland held that the act constituted one connected scheme of regulation which, inasmuch as it invaded the reserved powers of the States over conditions of employment in productive industry, was violative of the Constitution and void.[451] Justice Sutherland's opinion set out from Chief Justice Hughes's assertion in the Schechter Case of the "fundamental" character of the distinction between "direct" and "indirect" effects; that is to say, from the doctrine of the Sugar Trust Case. It then proceeded: "Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby. But, ..., the conclusive answer is that the evils are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. At common law, it is one of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity. And the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result. Such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the greatness of the effect adds to its importance. It does not alter its character."[452] We again see the influence of the ideology of the Sugar Trust Case.[453] THE NATIONAL LABOR RELATIONS ACT The case in which the Court reduced the distinction between "direct" and "indirect" effects to the vanishing point, and thereby put Congress in the way of governing productive industry and labor relations in such industry was National Labor Relations Board _v._ Jones and Laughlin Steel Corp.,[454] decided April 12, 1937. Here the statute involved was the National Labor Relations Act of July 5, 1935,[455] which forbids "any unfair labor practice affecting interstate commerce" and lists among these "the denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining." Ignoring recent holdings, government counsel appealed to the "current of commerce" concept of the Swift Case. The scope of respondent's activities, they pointed out, was immense. Besides its great steel-producing plants, it owned and operated mines, steamships, and terminal railways scattered through several States, and altogether it gave employment to many thousands of workers. A vast industrial commonwealth such as this, whose operations constantly traversed State lines, comprised, they contended, a species of territorial enclave which was subject in all its parts to the only governmental power capable of dealing with it as an entity, that is, the National Government. Yet even if this were not so, still the protective power of Congress over interstate commerce must be deemed to extend to disruptive strikes by employees of such an immense concern, and hence to include power to remove the causes of such strikes. The Court, speaking through Chief Justice Hughes, held the corporation to be subject to the act on the latter ground. "The close and intimate effect," said he, "which brings the subject within the reach of federal power may be due to activities in relation to productive industry although the industry when separately viewed is local." Nor will it do to say that such effect is "indirect." Considering defendant's "far-flung activities," the effect of strife between it and its employees "* * * would be immediate and [it] might be catastrophic. We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects in an intellectual vacuum. * * * When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war? We have often said that interstate commerce itself is a practical conception. It is equally true that interferences with that commerce must be appraised by a judgment that does not ignore actual experience."[456] While the act was thus held to be within the constitutional powers of Congress in relation to a productive concern, the interruption of whose business by strike "might be catastrophic," the decision was forthwith held to apply also to two minor concerns;[457] and in a later case the Court stated specifically that "the smallness of the volume of commerce affected in any particular case" is not a material consideration.[458] Moreover, the doctrine of the Jones-Laughlin Case applies equally to "natural" products, to coal mined, to stone quarried, to fruit and vegetables grown.[459] THE FAIR LABOR STANDARDS ACT; THE DARBY CASE In 1938 Congress enacted the Fair Labor Standards Act.[460] The measure prohibits not only the shipment in interstate commerce of goods manufactured by employees whose wages are less than the prescribed minimum or whose weekly hours of labor are greater than the prescribed maximum, but also the employment of workmen in the production of goods for such commerce at other than the prescribed wages and hours. Interstate commerce is defined by the act to mean "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof." It was further provided that "for the purposes of this act an employee shall be deemed to have been engaged in the production of goods [that is, for interstate commerce] if such employee was employed * * *, or in any process or occupation necessary to the production thereof, in any State." Sustaining an indictment under the act, a unanimous Court, speaking by Chief Justice Stone, said: "The motive and purpose of the present regulation are plainly to make effective the congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the States from and to which commerce flows."[461] In support of the decision the Court invokes Chief Justice Marshall's reading of the necessary and proper clause in McCulloch _v._ Maryland and his reading of the commerce clause in Gibbons _v._ Ogden.[462] Objections purporting to be based on the Tenth Amendment are met from the same point of view: "Our conclusion is unaffected by the Tenth Amendment which provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and State governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new National Government might seek to exercise powers not granted, and that the States might not be able to exercise fully their reserved powers. _See_ e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908."[463] Commenting recently on this decision, former Justice Roberts said: "Of course, the effect of sustaining the Fair Labor Standards Act was to place the whole matter of wages and hours of persons employed throughout the United States, with slight exceptions, under a single federal regulatory scheme and in this way completely to supersede state exercise of the police power in this field."[464] In a series of later cases construing terms of the act, it had been given wide application.[465] THE AGRICULTURAL MARKETING AGREEMENT ACT Meantime Congress had returned to the task of bolstering agriculture by passing the Agricultural Marketing Agreement Act of June 3, 1937,[466] authorizing the Secretary of Agriculture to fix the minimum prices of certain agricultural products, when the handling of such products occurs "in the current of interstate or foreign commerce or * * * directly burdens, obstructs or affects interstate or foreign commerce in such commodity or product thereof." In United States _v._ Wrightwood Dairy Company[467] the Court sustained an order of the Secretary of Agriculture fixing the minimum prices to be paid to producers of milk in the Chicago "marketing area." The dairy company demurred to the regulation on the ground of its applying to milk produced and sold intrastate. Sustaining the order the Court said: "Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce, * * *, and it possesses every power needed to make that regulation effective. The commerce power is not confined in its exercise to the regulation of commerce among the States. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. _See_ McCulloch _v._ Maryland, 4 Wheat. 316, 421; * * * The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. Gibbons _v._ Ogden, 9 Wheat. 1, 196. It follows that no form of State activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power."[468] In Wickard _v._ Filburn[469] a still deeper penetration by Congress into the field of production was sustained. As amended by the act of 1941, the Agricultural Adjustment Act of 1938,[470] regulates production even when not intended for commerce but wholly for consumption on the producer's farm. Sustaining this extension of the act, the Court pointed out that the effect of the statute was to support the market. It said: "It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices."[471] And it elsewhere stated: "Questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce. * * * The Court's recognition of the relevance of the economic effects in the application of the Commerce Clause, * * *, has made the mechanical application of legal formulas no longer feasible."[472] Acts of Congress Prohibiting Commerce FOREIGN COMMERCE; JEFFERSON'S EMBARGO "Jefferson's Embargo" of 1807-1808, which cut all trade with Europe, was attacked on the ground that the power to regulate commerce was the power to preserve it, not the power to destroy it. This argument was rejected by Judge Davis of the United States District Court for Massachusetts in the following words: "A national sovereignty is created [by the Constitution]. Not an unlimited sovereignty, but a sovereignty, as to the objects surrendered and specified, limited only by the qualifications and restrictions, expressed in the Constitution. Commerce is one of those objects. The care, protection, management and control, of this great national concern, is, in my opinion, vested by the Constitution, in the Congress of the United States; and their power is sovereign, relative to commercial intercourse, qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the President and Senate. * * * Power to regulate, it is said, cannot be understood to give a power to annihilate. To this it may be replied, that the acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to be committed? * * * The term does not necessarily include shipping or navigation; much less does it include the fisheries. Yet it never has been contended, that they are not the proper objects of national regulation; and several acts of Congress have been made respecting them. * * * [Furthermore] if it be admitted that national regulations relative to commerce, may apply it as an instrument, and are not necessarily confined to its direct aid and advancement, the sphere of legislative discretion is, of course, more widely extended; and, in time of war, or of great impending peril, it must take a still more expanded range. Congress has power to declare war. It, of course, has power to prepare for war; and the time, the manner, and the measure, in the application of constitutional means, seem to be left to its wisdom and discretion. * * * Under the Confederation, * * * we find an express reservation to the State legislatures of the power to pass prohibitory commercial laws, and, as respects exportations, without any limitations. Some of them exercised this power. * * * Unless Congress, by the Constitution, possess the power in question, it still exists in the State legislatures--but this has never been claimed or pretended, since the adoption of the federal Constitution; and the exercise of such a power by the States, would be manifestly inconsistent with the power, vested by the people in Congress, 'to regulate commerce.' Hence I infer, that the power, reserved to the States by the articles of Confederation, is surrendered to Congress, by the Constitution; unless we suppose, that, by some strange process, it has been merged or extinguished, and now exists no where."[473] FOREIGN COMMERCE; PROTECTIVE TARIFFS Tariff laws have customarily contained prohibitory provisions, and such provisions have been sustained by the Court under Congress's revenue powers (_see above_) and under its power to regulate foreign commerce. Speaking for the Court in University of Illinois _v._ United States,[474] in 1933, Chief Justice Hughes said: "The Congress may determine what articles may be imported into this country and the terms upon which importation is permitted. No one can be said to have a vested right to carry on foreign commerce with the United States. * * * It is true that the taxing power is a distinct power; that it is distinct from the power to regulate commerce. * * * It is also true that the taxing power embraces the power to lay duties. Art. I, § 8, cl. 1. But because the taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. The contrary is well established. Gibbons _v._ Ogden, 9 Wheat. 1, 202. 'Under the power to regulate foreign commerce Congress impose duties on importations, give drawbacks, pass embargo and nonintercourse laws, and make all other regulations necessary to navigation, to the safety of passengers, and the protection of property.' Groves _v._ Slaughter, 15 Pet. 449, 505. The laying of duties is 'a common means of executing the power.' 2 Story on the Constitution, § 1088."[475] FOREIGN COMMERCE; BANNED ARTICLES The forerunners of more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. This power Congress has exercised since 1842. In that year it forbade the importation of obscene literature or pictures from abroad.[476] Six years later it passed an act "to prevent the importation of spurious and adulterated drugs" and to provide a system of inspection to make the prohibition effective.[477] Such legislation guarding against the importation of noxiously adulterated foods, drugs, or liquor has been on the statute books ever since. In 1887 the importation by Chinese nationals of smoking opium was prohibited,[478] and subsequent statutes passed in 1909 and 1914 made it unlawful for anyone to import it.[479] In 1897 Congress forbade the importation of any tea "inferior in purity, quality, and fitness for consumption" as compared with a legal standard.[480] The act was sustained in 1904, in the leading case of Buttfield _v._ Stranahan.[481] In "The Abby Dodge" case an act excluding sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained, but construed as not applying to sponges taken from the territorial waters of a State.[482] In Weber _v._ Freed[483] an act prohibiting the importation and interstate transportation of prize-fight films or of pictorial representation of prize fights was upheld. Speaking for the unanimous Court, Chief Justice White said: "In view of the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles recognized and enforced by many previous decisions of this court, the contentions are so devoid of merit as to cause them to be frivolous."[484] In Brolan _v._ United States[485] the Court again stressed the absolute nature of Congress's power over foreign commerce, saying: "In the argument reference is made to decisions of this court dealing with the subject of the power of Congress to regulate interstate commerce, but the very postulate upon which the authority of Congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad distinction which exists between the two powers and therefore the cases cited and many more which might be cited announcing the principles which they uphold have obviously no relation to the question in hand."[486] INTERSTATE COMMERCE; CONFLICT OF DOCTRINE AND OPINION The question whether Congress's power to regulate commerce "among the several States" embraced the power to prohibit it furnished the topic of one of the most protracted debates in the entire history of the Constitution's interpretation, a debate the final resolution of which in favor of Congressional power is an event of first importance for the future of American Federalism. The issue was as early as 1841 brought forward by Henry Clay, in an argument before the Court in which he raised the specter of an act of Congress forbidding the interstate slave trade.[487] The debate was concluded ninety-nine years later by the decision in United States _v._ Darby, in which the Fair Labor Standards Act was sustained. The résumé of it which is given below is based on judicial opinions, arguments of counsel, and the writings of jurists and political scientists. Much of this material was evoked by efforts of Congress, from about 1905 onward, to stop the shipment interstate of the products of child labor. ACTS OF CONGRESS PROHIBITIVE OF INTERSTATE COMMERCE The earliest such acts were in the nature of quarantine regulations and usually dealt solely with interstate transportation. In 1884 the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden.[488] In 1903 power was conferred upon the Secretary of Agriculture to establish regulations to prevent the spread of such diseases through foreign or interstate commerce.[489] In 1905 the same official was authorized to lay an absolute embargo or quarantine upon all shipments of cattle from one State to another when the public necessity might demand it.[490] A statute passed in 1905 forbade the transportation in foreign and interstate commerce and the mails of certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation.[491] In 1912 a similar exclusion of diseased nursery stock was decreed,[492] while by the same act, and again by an act of 1917,[493] the Secretary of Agriculture was invested with powers of quarantine on interstate commerce for the protection of plant life from disease similar to those above described for the prevention of the spread of animal disease. While the Supreme Court originally held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce,[494] this view has today been abandoned. _See_ pp. 248-249. THE LOTTERY CASE The first case to come before the Court in which the issues discussed above were canvassed at all thoroughly was Champion _v._ Ames,[495] involving the act of 1895 "for the suppression of lotteries."[496] An earlier act excluding lottery tickets from the mails had been upheld in the earlier case of In re Rapier,[497] on the proposition that Congress clearly had the power to see that the very facilities furnished by it were not put to bad uses. But in the case of commerce the facilities are not ordinarily furnished by the National Government, and the right to engage in foreign and interstate commerce comes from the Constitution itself, or is anterior to it. How difficult the Court found the question produced by the act of 1895, forbidding any person to bring within the United States or to cause to be "carried from one State to another" any lottery ticket, or an equivalent thereof, "for the purpose of disposing of the same," is shown by the fact that the case was thrice argued before the Court, and the fact that the Court's decision finally sustaining the act was a five-to-four decision. The opinion of the Court, on the other hand, prepared by Justice Harlan, marked an almost unqualified triumph at the time for the view that Congress's power to regulate commerce among the States includes the power to prohibit it, especially to supplement and support State legislation enacted under the police power.[498] Early in the opinion extensive quotation is made from Chief Justice Marshall's opinion in Gibbons _v._ Ogden,[499] with special stress upon the definition there given of the phrase "to regulate." Justice Johnson's assertion on the same occasion is also given: "The power of a sovereign State over commerce, * * *, amounts to nothing more than, a power to limit and restrain it at pleasure." Further along is quoted with evident approval Justice Bradley's statement in Brown _v._ Houston,[500] that "the power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations." NATIONAL PROHIBITIONS AND STATE POLICE POWER Following in the wake of Champion _v._ Ames, Congress has repeatedly brought its prohibitory powers over interstate commerce and communications to the support of certain local policies of the States in the exercise of their reserved powers, thereby aiding them in the repression of the liquor traffic,[501] of traffic in game taken in violation of State laws,[502] of commerce in convict-made goods,[503] of the white slave traffic,[504] of traffic in stolen motor vehicles,[505] of kidnapping,[506] of traffic in stolen property,[507] of racketeering,[508] of prize-fight films or other pictorial representation of encounters of pugilists.[509] The conception of the Federal System on which the Court based its validation of this legislation was stated by it in 1913 in sustaining the Mann "White Slave" Act in the following words: "Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction, * * *, but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral."[510] At the same time, the Court made it plain that in prohibiting commerce among the States, Congress was equally free to support State legislative policy or to devise a policy of its own. "Congress," it said, "may exercise this authority in aid of the policy of the State, if it sees fit to do so. It is equally clear that the policy of Congress acting independently of the States may induce legislation without reference to the particular policy or law of any given State. Acting within the authority conferred by the Constitution it is for Congress to determine what legislation will attain its purposes. The control of Congress over interstate commerce is not to be limited by State laws."[511] HAMMER _v._ DAGENHART However, it is to be noted that none of this legislation operated in the field of industrial relations. So when the Court was confronted in 1918, in the case of Hammer _v._ Dagenhart,[512] with an act which forbade manufacturers and others to offer child-made goods for transportation in interstate commerce,[513] it held the act, by the narrow vote of five Justices to four, to be not an act regulative of commerce among the States, but one which invaded the reserved powers of the States. "The maintenance of the authority of the States over matters purely local," said Justice Day for the Court, "is as essential to the preservation of our institutions as is the conservation of the supremacy of the federal power in all matters entrusted to the Nation by the Federal Constitution."[514] As to earlier decisions sustaining Congress's prohibitory powers, Justice Day said: "In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. * * * This element is wanting in the present case. * * * The goods shipped are in themselves harmless. * * * When offered for shipment, and before transportation begins, the labor of their production is over, and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power. * * * 'When commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another State for sale, * * *, but by its actual delivery to a common carrier for transportation, * * *' (Mr. Justice Jackson in _In re Greene_, 52 Fed. Rep. 113). This principle has been recognized often in this court. Coe _v._ Errol, 116 U.S. 517 * * *."[515] The decision in Hammer _v._ Dagenhart was, in short, governed by the same general conception of the interstate commerce process as that which governed the decision in the Sugar Trust Case. Commerce was envisaged as beginning only with an act of transportation from one State to another. And from this it was deduced that the only commerce which Congress may prohibit is an act of transportation from one State to the other which is followed in the latter by an act within the normal powers of government to prohibit. Commerce, however, is primarily _traffic_; and the theory of the Child Labor Act was that it was designed to discourage a widespread and pernicious interstate traffic in the products of child labor--pernicious because it bore "a real and substantial relation" to the existence of child labor employment in some States and constituted a direct inducement to its spread to other States. Deprived of the interstate market which this decision secured to it, child labor could not exist. INTERSTATE COMMERCE IN STOLEN GOODS BANNED In Brooks _v._ United States,[516] decided in 1925, the Court, in sustaining the National Motor Vehicle Theft Act of 1919,[517] materially impaired the _ratio decidendi_ of Hammer _v._ Dagenhart. At the outset of his opinion for the Court, Chief Justice Taft stated the general proposition that "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other States from the State of origin." This statement was buttressed by a review of previous cases, including the explanation that the goods involved in Hammer _v._ Dagenhart were "harmless" and did not spread harm to persons in other States. Passing then to the measure before the Court, the Chief Justice noted "the radical change in transportation" brought about by the automobile, and the rise of "elaborately organized conspiracies for the theft of automobiles * * *, and their sale or other disposition" in another police jurisdiction from the owner's. This, the opinion declared, "is a gross misuse of interstate commerce. Congress may properly punish such interstate transportation by anyone with knowledge of the theft, because of its harmful result and its defeat of the property rights of those whose machines against their will are taken into other jurisdictions."[518] The Motor Vehicle Act was sustained, therefore, mainly as protective of owners of automobiles, that is to say, of interests in "the State of origin." It was designed to repress automobile thefts, and that notwithstanding the obvious fact that such thefts must necessarily occur before transportation of the thing stolen can take place, that is, under the formula followed in Hammer _v._ Dagenhart, before Congress's power over interstate commerce becomes operative. Also, the Court took cognizance of "elaborately organized conspiracies" for the theft and disposal of automobiles across State lines--that, to say, of a widespread traffic in such property. THE DARBY CASE The formal overruling of Hammer _v._ Dagenhart, however, did not occur until 1941 when, in sustaining the Fair Labor Standards Act, a unanimous Court, speaking by Justice Stone, said: "Hammer _v._ Dagenhart has not been followed. The distinction on which the decision was rested that Congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property--a distinction which was novel when made and unsupported by any provision of the Constitution--has long since been abandoned. * * * The thesis of the opinion that the motive of the prohibition or its effect to control in some measure the use or production within the States of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority has long since ceased to have force. * * * And finally we have declared 'The authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the States over intrastate commerce.' United States _v._ Rock Royal Co-operative, 307 U.S. 533, 569. The conclusion is inescapable that Hammer _v._ Dagenhart, was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted. It should be and now is overruled."[519] And commenting in a recent case on the Fair Labor Standards Act, Justice Burton, speaking for the Court said: "The primary purpose of the act is not so much to regulate interstate commerce as such, as it is, through the exercise of legislative power, to prohibit the shipment of goods in interstate commerce if they are produced under substandard labor conditions."[520] CONGRESS AND THE FEDERAL SYSTEM In view of these developments the following dictum by Justice Frankfurter, was no doubt, intended to be reassuring as to the future of the Federal System: "The interpenetrations of modern society have not wiped out State lines. It is not for us [the Court] to make inroads upon our federal system either by indifference to its maintenance or excessive regard for the unifying forces of modern technology. Scholastic reasoning may prove that no activity is isolated within the boundaries of a single State, but that cannot justify absorption of legislative power by the United States over every activity."[521] While this may be conceded, the unmistakable lesson of recent cases is that the preservation of our Federal System depends today mainly upon Congress. The Commerce Clause as a Restraint on State Powers DOCTRINAL BACKGROUND The grant of power to Congress over commerce, unlike that of power to levy customs duties, the power to raise armies, and some others, is unaccompanied by correlative restrictions on State power. This circumstance does not, however, of itself signify that the States were expected still to participate in the power thus granted Congress, subject only to the operation of the supremacy clause. As Hamilton points out in The Federalist, while some of the powers which are vested in the National Government admit of their "concurrent" exercise by the States, others are of their very nature "exclusive," and hence render the notion of a like power in the States "contradictory and repugnant."[522] As an example of the latter kind of power Hamilton mentioned the power of Congress to pass a uniform naturalization law. Was the same principle expected to apply to the power over foreign and interstate commerce? Unquestionably one of the great advantages anticipated from the grant to Congress of power over commerce was that State interferences with trade, which had become a source of sharp discontent under the Articles of Confederation, would be thereby brought to an end. As Webster stated in his argument for appellant in Gibbons _v._ Ogden: "The prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law." In other words, the constitutional grant was itself a regulation of commerce in the interest of uniformity. Justice Johnson's testimony in his concurring opinion in the same case is to like effect: "There was not a State in the Union, in which there did not, at that time, exist a variety of commercial regulations; * * * By common consent, those laws dropped lifeless from their statute books, for want of sustaining power that had been relinquished to Congress";[523] and Madison's assertion, late in life, that power had been granted Congress over interstate commerce mainly as "a negative and preventive provision against injustice among the States,"[524] carries a like implication. That, however, the commerce clause, unimplemented by Congressional legislation, took from the States any and all power over foreign and interstate commerce was by no means universally conceded; and Ogden's attorneys directly challenged the idea. Moreover, as was pointed out on both sides in Gibbons _v._ Ogden, legislation by Congress regulative of any particular phase of commerce would still leave many other phases unregulated and consequently raise the question whether the States were entitled to fill the remaining gaps, if not by virtue of a "concurrent" power over interstate and foreign commerce, then by virtue of "that immense mass of legislation," as Marshall termed it, "which embraces everything within the territory of a State, not surrendered to the general government,"[525]--in a word, the "police power." The commerce clause does not, therefore, without more ado, settle the question of what power is left to the States to adopt legislation regulating foreign or interstate commerce in greater or less measure. To be sure, in cases of flat conflict between an act or acts of Congress regulative of such commerce and a State legislative act or acts, from whatever State power ensuing, the act of Congress is today recognized, and was recognized by Marshall, as enjoying an unquestionable supremacy.[526] But suppose, _first_, that Congress has passed no act; or _secondly_, that its legislation does not clearly cover the ground which certain State legislation before the Court attempts to cover--what rules then apply? Since Gibbons _v._ Ogden both of these situations have confronted the Court, especially as regards interstate commerce, hundreds of times, and in meeting them the Court has, first and last, coined or given currency to numerous formulas, some of which still guide, even when they do not govern, its judgment. DOCTRINAL BACKGROUND; WEBSTER'S CONTRIBUTION The earliest, and the most successful, attempt to set forth a principle capable of guiding the Court in adjusting the powers of the States to unexercised power of Congress under the commerce clause was that which was made by Daniel Webster in his argument in Gibbons _v._ Ogden, in the following words: "He contended, * * *, that the people intended, in establishing the Constitution, to transfer from the several States to a general government, those high and important powers over commerce, which, in their exercise, were to maintain a uniform and general system. From the very nature of the case, these powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be a unit; and the system by which it was to exist and be governed, must necessarily be complete, entire and uniform." At the same time Webster conceded "that the words used in the Constitution, 'to regulate commerce,' are so very general and extensive, that they might be construed to cover a vast field of legislation, part of which has always been occupied by State laws; and therefore, the words must have a reasonable construction, and the power should be considered as exclusively vested in Congress, so far, and so far only, as the nature of the power requires."[527] Webster also dealt with the problem which arises when Congress has exercised its power. The results of its act, he contended, must be treated as a unit, so that when Congress had left subject matter within its jurisdiction unregulated, it must be deemed to have done so of design, and its omissions, or silences, accordingly be left undisturbed by State action. Although Marshall, because he thought the New York act creating the Livingston-Fulton monopoly to be in direct conflict with the Enrolling and Licensing Act of 1793, was not compelled to pass on either of Webster's theories, he indicated his sympathy with them.[528] COOLEY _v._ BOARD OF PORT WARDENS Aside from Marshall's opinion in 1827 in Brown _v._ Maryland,[529] in which the famous "original package" formula made its debut, the most important utterance of the Court touching interpretation of the commerce clause as a restriction on State legislative power is that for which Cooley _v._ Board of Wardens of Port of Philadelphia,[530] decided in 1851, is usually cited. The question at issue was the validity of a Pennsylvania pilotage act so far as it applied to vessels engaged in foreign commerce and the coastwise trade. The Court, speaking through Justice Curtis, sustained the act on the basis of a distinction between those subjects of commerce which "imperatively demand a single uniform rule" operating throughout the country and those which "as imperatively" demand "that diversity which alone can meet the local necessities of navigation," that is to say, of commerce. As to the former the Court held Congress's power to be "exclusive"--as to the latter it held that the States enjoyed a power of "concurrent legislation." While this formula obviously stems directly from Webster's argument in Gibbons _v._ Ogden, it covers considerably less ground. Citation, nevertheless, of the Cooley case throughout the next half century eliminated the difference and brought the Curtis dictum abreast of Webster's earlier argument. The doctrine consequently came to be established, _first_, that Congress's power over interstate commerce is "exclusive" as to those phases of it which require "uniform regulation"; _second_, that outside this field, as plotted by the Court, the States enjoyed a "concurrent" power of regulation, subject to Congress's overriding power.[531] JUDICIAL FORMULAS But meantime other formulas had emerged from the judicial smithy, several of which are brought together into something like a doctrinal system, in Justice Hughes' comprehensive opinion for the Court in the Minnesota Rate Cases,[532] decided in 1913. "Direct" regulation of foreign or interstate commerce by a State is here held to be out of the question. At the same time, the States have their police and taxing powers, and may use them as their own views of sound public policy may dictate even though interstate commerce may be "incidentally" or "indirectly" regulated, it being understood that such "incidental" or "indirect" effects are always subject to Congressional disallowance. "Our system of government," Justice Hughes reflects, "is a practical adjustment by which the National authority as conferred by the Constitution is maintained in its fall scope without unnecessary loss of local efficiency."[533] In more concrete terms, the varied formulas which characterize this branch of our Constitutional Law have been devised by the Court from time to time in an endeavor to effect "a practical adjustment" between two great interests, the maintenance of freedom of commerce except so far as Congress may choose to restrain it, and the maintenance in the States of efficient local governments. Thus, while formulas may serve to steady and guide its judgment, the Court's real function in this area of judicial review is essentially that of an arbitral or quasi-legislative body. So much so is this the case that in 1940 three Justices joined in an opinion in which they urged that the business of drawing the line between the immunity of interstate commerce and the taxing power of the States "should be left to the legislatures of the States and the Congress," with the final remedy in the hands of the latter.[534] State Taxing Power and Foreign Commerce BROWN _v._ MARYLAND; THE ORIGINAL PACKAGE DOCTRINE The leading case under this heading is Brown _v._ Maryland,[535] decided in 1827, the issue in which was the validity of a Maryland statute requiring "all importers of foreign articles or commodities," preparatory to selling the same, to take out a license. Holding this act to be void under both article I, sec. 10, and the commerce clause, the Court, speaking through Chief Justice Marshall, advanced the following propositions: (1) that "commerce is intercourse; one of its most ordinary ingredients is traffic"; (2) that the right to import includes the right to sell; (3) that a tax on the sale of an article is a tax on the article itself--a conception of the incidence of taxation which has at times had important repercussions in other fields of Constitutional Law; (4) that the taxing power of the State does not extend in any form to imports from abroad so long as they remain "the property of the importer, in his warehouse, in the original form or package" in which they were imported--the famous "original package doctrine"; (5) that once, however, the importer parts with his importations "or otherwise mixes them with the general property of the State by breaking up his packages," the law may treat them as part and parcel of such property; (6) that even while in the original package imports are subject to the incidental operation of police measures adopted by the State in good faith for the protection of the public against apparent dangers. Lastly, in determining whether a State law amounts to a regulation of commerce the Court would, Marshall announced, be guided by "substance" and not by "form"--a proposition which has many times opened the way to extensive inquiries by the Court into the actualities both of commercial practice and of State administration. The decision in Brown _v._ Maryland, but more especially the "original package doctrine" there laid down, has been sometimes criticised as going too far. It would have been sufficient, the critics contend, for the Court to have held the Maryland act void on account of its obviously discriminatory character; and they urge that original packages receiving the protection of the State ought to be subject to nondiscriminatory taxation by it. The criticism was partially anticipated by Marshall himself in the apprehensions which he voiced that any concession to "the great importing States" might be turned by them against the rest of the country. Indeed, he is uncertain whether the original package doctrine will prove sufficient for its purposes and accordingly offers it not as a rule "universal in its application," but rather as a stop-gap principle. History has proved, however, that in this he builded better than he knew. For in the field of foreign commerce the original package doctrine has never been disturbed, and it has scarcely been added to; and so confined, it has never been surpassed by any later piece of judicial legislation, whether in point of durability or in that of definiteness and easy comprehensibility.[536] State Taxation of the Subject Matter of Interstate Commerce GENERAL CONSIDERATIONS The task of drawing the line between State power and the commercial interest has proved a comparatively simple one in the field of foreign commerce, the two things being in great part territorially distinct. With "commerce among the States" it is very different. This is conducted in the interior of the country, by persons and corporations that are ordinarily engaged also in local business; its usual incidents are acts which, if unconnected with commerce among the States, would fall within the State's powers of police and taxation; while the things it deals in and the instruments by which it is carried on comprise the most ordinary subject matter of State power. In this field the Court has, consequently, been unable to rely upon sweeping solutions. To the contrary, its judgments have often been fluctuating and tentative, even contradictory; and this is particularly the case as respects the infringement of the State taxing power on interstate commerce. In the words of Justice Frankfurter: "The power of the States to tax and the limitations upon that power imposed by the Commerce Clause have necessitated a long, continuous process of judicial adjustment. The need for such adjustment is inherent in a Federal Government like ours, where the same transaction has aspects that may concern the interests and involve the authority of both the central government and the constituent States. The history of this problem is spread over hundreds of volumes of our Reports. To attempt to harmonize all that has been said in the past would neither clarify what has gone before nor guide the future. Suffice it to say that especially in this field opinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts."[537] THE STATE FREIGHT TAX CASE The great leading case dealing with the relation of the State's taxing power to interstate commerce is that of the State Freight Tax,[538] decided in 1873. The question before the Court was the validity of a Pennsylvania statute, passed eight years earlier, which required every company transporting freight within the State, with certain exceptions, to pay a tax at specified rates on each ton of freight carried by it. Overturning the act, the Court held: "(1) The transportation of freight, or of the subjects of commerce, is a constituent part of commerce itself; (2) a tax upon freight, transported from State to State, is a regulation of commerce among the States; (3) whenever the subjects in regard to which a power to regulate commerce is asserted are in their nature National, or admit of one uniform system or plan of regulation, they are exclusively within the regulating control of Congress; (4) transportation of passengers or merchandise through a State, or from one State to another, is of this nature; (5) hence a statute of a State imposing a tax upon freight, taken up within the State and carried out of it, or taken up without the State and brought within it, is repugnant to that provision of the Constitution of the United States, which ordains that 'Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes.'"[539] GOODS IN TRANSIT States, therefore, may not tax property in transit in interstate commerce. A nondiscriminatory tax, however, is permitted if the goods have not yet started in interstate commerce, or have completed the interstate transit even though still in the original package, unless they are foreign imports in the original package; and States may also impose a nondiscriminatory tax when there is a break in an interstate transit, and the goods have not been restored to the current of interstate commerce. Such is the law in brief. Two questions arise, first, when do goods originating in a State pass from under its power to tax; and, second, when do goods arriving from another State lose their immunity? The leading case dealing with the first of these questions is Coe _v._ Errol,[540] in which the matter at issue was the right of the town of Errol, New Hampshire, to tax certain logs on their way to points in Maine, while they lay in the river before the town or along its shore awaiting the spring freshets and consequent rise of the river. As to the logs in the river, which had come from Maine on their way to Lewiston in the same State, but had been detained at Errol by low water, the Supreme Court of New Hampshire itself ruled that the local tax did not apply, the logs being still in transit. As to the logs which had been cut in New Hampshire and lay on the shore or in tributaries of the river, both courts were again in agreement that they were still subject to local taxation, notwithstanding the intention of their owners to send them out of the State. Said Justice Bradley: "* * * goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey."[541] STATE TAXATION OF MANUFACTURING AND MINING Under the above rule, obviously, production is not interstate commerce even though the thing produced is intended for the interstate market. Thus a Pennsylvania _ad valorem_ tax on anthracite coal when prepared and ready for shipment was held not to be an interference with interstate commerce although applied to coal destined for a market in other States;[542] and in Oliver Iron Company _v._ Lord[543] an occupation tax on the mining of iron ore was upheld, although substantially all of the ore was immediately and continuously loaded on cars and shipped into other States. Said the Court: "Mining is not interstate commerce, but, * * * subject to local regulation and taxation. Its character in this regard is intrinsic, is not affected by the intended use or disposal of the product, is not controlled by contractual engagements, and persists even though the business be conducted in close connection with interstate commerce."[544] Likewise an annual privilege tax on the business of producing natural gas in the State, computed on the value of the gas produced "as shown by the gross proceeds derived from the sale thereof by the producer," was held constitutional even though most of the gas passed into interstate commerce in continuous movement from the wells.[545] And in Utah Power and Light Co. _v._ Pfost[546] the generation of electricity in a State was held to be distinguishable from its transmission over wires to consumers in another State, and hence taxable by the former State. Likewise, a State statute imposing a privilege tax on the production of mechanical power for sale or use did not contravene the interstate commerce clause although applied to an engine operating a compressor to increase the pressure of natural gas and thereby permit it to be transported to purchasers in other States.[547] Similarly, a tax so much per pound on shrimp taken within the three-mile belt of the coast of the taxing State was valid, since the taxable event, the taking of the shrimp, occurred before they could be said to have entered the interstate commerce stream.[548] PRODUCTION FOR AN ESTABLISHED MARKET But while the production of goods intended for the interstate market is taxable by the State where it takes place, their purchase for an established market in another State is interstate commerce and as such is neither regulatable nor taxable by the State of origin, provided at any rate their trans-shipment is not unduly delayed.[549] Thus, oil gathered into the pipe lines of a distributing company and intended for the most part for customers outside the State, is in interstate commerce from the moment it leaves the wells;[550] and a like result has been reached as to natural gas.[551] "The typical and actual course of events," says the Court, "marks the carriage of the greater part as commerce among the States and theoretical possibilities may be left out of account."[552] REJECTION OF THE ORIGINAL PACKAGE CONCEPT IN INTERSTATE COMMERCE But the question also arises as to when goods entering a State from another State become part of the mass of property of the former and hence taxable by it? In Brown _v._ Maryland,[553] Chief Justice Marshall, had remarked at the close of his opinion, "We suppose the principles laid down in this case, apply equally to importations from a sister State."[554] Forty-two years later, in Woodruff _v._ Parham,[555] an effort was made to induce the Court, in reliance on this dictum, to apply the original package doctrine against a Mobile, Alabama tax on sales at auction, so far as it reached "imports" from sister States. The Court refused the invitation; first on the ground that Marshall's statement was _obiter_, the point not having been involved in Brown _v._ Maryland; second, because usage contemporary with the Constitution and of the Constitution itself confined the term "imports" as employed in article I, section 10 to imports from abroad; third, because the tax in question was nondiscriminatory. At the same time, nevertheless, reference was made to the power of Congress to interpose at any time in exercise of its power over commerce, "in such a manner as to prevent the States from any oppressive interference with the free interchange of commodities by the citizens of one State with those of another."[556] The same result was reached a few years later in Brown _v._ Houston,[557] where it was held that coal transported down the Mississippi from Pennsylvania had been validly subjected by Louisiana to a general _ad valorem_ property tax, having "come to its place of rest, for final disposal or use," and hence become "a part of the general mass of property in the State."[558] Again, however, a caveat was entered in behalf of the power of Congress to impose a different rule affording "a temporary exemption" of property transported from one State to another from taxation by the latter.[559] INSPECTION CHARGES Woodruff _v._ Parham and Brown _v._ Houston are still good law for the most part.[560] Nevertheless, there is one respect in which imports from sister States are treated as "imports" in the sense of the Constitution, and that is in being exempt from "unreasonable" inspection charges.[561] It is true, also, that in a series of cases involving sales of oil about 1920 the Court appeared to be contemplating reviving the original package doctrine,[562] but these holdings were presently "qualified" in a sweeping opinion by Chief Justice Taft, reviewing the cases.[563] But taxation is one thing, prohibition another. In the field of the police power, where its applicability was not so much as suggested in Brown _v._ Maryland, the original package doctrine has been frequently invoked by the Court against State legislation, and even today, perhaps retains a spark of life.[564] LOCAL SALES: PEDDLERS By the same token, local sales of goods brought into a State from another State are subject to a nondiscriminatory exercise of its taxing power. Such a tax, the Court has said, "has never been regarded as imposing a direct burden upon interstate commerce and has no greater or different effect upon that commerce than a general property tax to which all those enjoying the protection of the State may be subjected"; and this is true, even of goods immediately to be used in interstate commerce.[565] The commerce clause, therefore, does not prohibit a State from imposing special license taxes on merchants using profit sharing coupons and trading stamps although the coupons may have been inserted in retail packages by the manufacturer or shipper outside the State and are redeemable outside the State, either by such manufacturer or shipper, or by some other agency outside the State;[566] nor yet a nondiscriminatory tax upon local peddling of goods and sales thereof by peddlers even though the goods are foreign or interstate imports, since the sale occurs after foreign or interstate commerce thereof has ended.[567] And in Kehrer _v._ Stewart[568] it was held that a State tax upon resident managing agents of nonresident meatpacking houses did not conflict with the commerce clause, regardless of the fact that the greater portion of the business was interstate in character, the tax having been construed by the highest court of the State as applying only to the business of selling to local customers from the stock of "original packages" shipped into the State without a previous sale or contract to sell, and kept and held for sale in the ordinary course of trade. Contrariwise, a tax on sales discriminatory in its incidence against merchandise because of its origin in another State is _ipso facto_ unconstitutional. The leading case is Welton _v._ Missouri,[569] decided in 1876, in which a peddler's license tax confined to the sale of goods manufactured outside the State was set aside. The doctrine of Welton _v._ Missouri has been reiterated many times.[570] STOPPAGE IN TRANSIT It also follows logically from Coe _v._ Errol,[571] and the cases deriving from it, that a State may impose a nondiscriminatory tax when there is a break in interstate transit, and the goods have not been restored to the current of interstate commerce. The effect of an interruption upon the continuity of an interstate movement depends upon its causes and purposes. If the delay is due to the necessities of the journey, as in the Coe case, where the logs were detained for a time within the State by low water, they are deemed "in the course of commercial transportation, and * * * clearly under the protection of the Constitution."[572] Intention thus often enters into the determination of the question whether goods from another State have come to rest sufficiently to subject them to the local taxing power. In a typical case the Court held that oil shipped from Pennsylvania and held in tanks in Memphis, Tennessee for separation, distribution and reshipment, was subject to the taxing power of the latter State.[573] The delay in transportation resulting from these proceedings on the part of the owners, the Court pointed out, was clearly designed for their own profit and convenience and was not a necessary incident to the method of transportation adopted, as had been the delay of the logs coming from Maine in Coe _v._ Errol. The distinction is fundamental.[574] Applying this rule in more recent cases, the Court has upheld State taxation: on the use and storage of gasoline brought into the State by a railroad company and unloaded and stored there, to be used for its interstate trains;[575] on gasoline imported and stored by an airplane company and withdrawn to fill airplanes that use it in their interstate travel;[576] on supplies brought into the State by an interstate railroad company to be used in replacements, repairs and extensions, and installed immediately upon arrival in the taxing State;[577] on equipment brought into the State by a telephone and telegraph company for operation, maintenance, and repair of its interstate system.[578] In all these cases the Court applied the principle that "use and storage" are subject to local taxation when "there is an interval after the articles have reached the end of their interstate movement and before their consumption in interstate operation has begun."[579] On the other hand, in the absence of such an "interval," the Court declared invalid State gasoline taxes imposed per gallon of gasoline imported by interstate carriers as fuel for use in such vehicles, and used within the State as well as in their interstate travel.[580] THE DRUMMER CASES; ROBBINS _v._ SHELBY COUNTY TAXING DISTRICT But there is one situation in which goods introduced into one State from another have until recent years enjoyed a special immunity from taxation by the former, and that is when they were introduced in consequence of a contract of sale. The leading case is Robbins _v._ Shelby County Taxing District,[581] in which the Court, after a penetrating survey of commercial practices, ruled that "the negotiation of sales of goods"--in this instance by sample--"which are in another State, for the purpose of introducing them into the State in which the negotiation is made, is interstate commerce." In short, whereas in foreign commerce, importation is succeeded by the right to sell in the original package, in interstate commerce sale was succeeded by the right of importation, which continued until the goods reached the hands of the purchaser. The benefits of this holding were extended in a series of rulings in which it was held to apply whether solicitation of orders was or was not made with sample,[582] and to sales which were not, accurately speaking, consummated until the actual delivery of the goods, which was attended by local incidents. So, where a North Carolina agent of a Chicago firm took orders for framed pictures, which were then sent to him packed separately from the frames and then framed by him before delivery, the rule laid down in the Robbins case was held to apply throughout, with the result that North Carolina could tax or license no part of the transaction described;[583] so also as to a sewing machine ordered by a customer in North Carolina and sent to her C.O.D.;[584] so also as to brooms sent in quantity for the fulfillment of a number of orders, and subject to rejection by the purchaser if deemed by him not up to sample.[585] Said Justice Holmes in the case last referred to: "'Commerce among the States' is a practical conception not drawn from the 'witty diversities' * * * of the law of sales. * * * The brooms were specifically appropriated to specific contracts, in a practical, if not in a technical, sense. Under such circumstances it is plain that, wherever might have been the title, the transport of the brooms for the purpose of fulfilling the contracts was protected commerce."[586] Nor did it make any difference that the solicitor received his compensation in form of down payment by the purchaser.[587] Moreover, sales under a mail order business, with delivery taking place within the State to a carrier for through shipment to another State to fill orders, was held to be beyond the taxing power of the first State.[588] The fact that a concern doing a strictly interstate business had goods on hand within the State which were capable of being used in intrastate commerce, did not, the Court declared, take the business out of the protection of the commerce clause and allow the State to impose a privilege tax on such concern. LIMITATION OF THE ROBBINS CASE On the other hand, it was early held that the rule laid down in the Robbins case did not prevent a State from taxing a resident citizen who engaged in a general commission business, on the profits thereof, although the business consisted "for the time being, wholly or partially in negotiating sales between resident and nonresident merchants, of goods situated in another State."[589] Also, it has been held that a stamp tax on transfers of corporate stock, as applied to a sale between two nonresidents, of the stock of foreign railway corporations, was not an interference with interstate commerce.[590] Likewise, the business of taking orders on commission for the purchase and sale of grain and cotton for future delivery not necessitating interstate shipment was ruled not to be interstate commerce, and as such exempt from taxation, although deliveries were sometimes made by interstate shipment.[591] And in Banker Bros. Co. _v._ Pennsylvania[592] it was held that a tax upon a domestic corporation selling automobiles built by a foreign corporation under an arrangement by which the latter agreed to build for and sell to the former, for cash, at a specified price less than list price, was not a tax on interstate transactions, there being nothing which connected the ultimate buyer with the manufacturer but a warranty and the buyer's agreement to pay the list price f.o.b. factory. Similarly, in Browning _v._ Waycross[593] it was held that the business of erecting lightning rods within the limits of a town by the agent of a nonresident manufacturer on whose behalf such agent had solicited orders for the sale of the rods, and from whom he had received them when shipped into the State, was validly subjected to a municipal license tax. "It was not," said the Court, "within the power of the parties by the form of their contract to convert what was exclusively a local business, * * *, into an interstate commerce business * * *"[594] Also, a municipal license tax upon persons engaged in the business of buying or selling cotton for themselves was found not to impose a forbidden burden upon interstate commerce even though the cotton was purchased with a view to ultimate shipment in some other State or country.[595] Nor was a gallonage tax imposed by a State upon a distributor of liquid fuel rendered repugnant to the commerce clause by the fact that the distributor caused fuel sold to customers in the State to be shipped from another State for delivery in tank cars--"deemed original packages"--on purchaser's siding, as agreed. Said the Court: "The contracts were executory and related to unascertained goods. * * * It does not appear that when they were made appellant had any fuels of the kinds covered, or that those to be delivered were then in existence. There was no selection of goods by purchasers. Appellant was not required by the contracts to obtain the fuels at Wilmington but was free to effect performance by shipping from, any place within or without Pennsylvania."[596] THE ROBBINS CASE TODAY In the cases reviewed in the preceding paragraph protestants against local taxation appealed, but unavailingly, to the Robbins case. So it would seem that the generative powers of that prolific precedent had begun to wane somewhat even before the Depression, an event which rendered judicial reaction against it still more pronounced. Indeed, by the Court's decision in McGoldrick _v._ Berwind-White Co.,[597] in 1940, the authority of the entire line of cases descending from Robbins _v._ Shelby County Taxing District was seriously impaired, for the time being, while a second holding the same year seemed to reduce the significance of the Robbins case itself to that of a reassertion of the elementary rule against discrimination. "The commerce clause," Justice Reed remarked sententiously, "forbids discrimination, whether forthright or ingenious."[598] DEPRESSION CASES: USE TAXES With a majority of the States on the verge of bankruptcy, extensive recourse was had to sales taxes and, as an offset to these in favor of the local economy, "use" taxes on competing products coming from sister States. The basic decision sustaining the use tax, in this novel employment of it, was Henneford _v._ Silas Mason Co.,[599] in which was involved a State of Washington two per cent tax on the privilege of using products coming from sister States. Excepted from the tax, on the other hand, was any property the sole use of which had already been subjected to an equal or greater tax, whether under the laws of Washington or any other State. Stressing this provision in its opinion, the Court said: "Equality is the theme that runs through all the sections of the statute. * * * When the account is made up, the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates."[600] There being no actual discrimination in favor of Washington products, the tax was valid. DEPRESSION CASES: SALES TAXES A companion piece of the Henneford case in motivation, although it occurred three years later, was McGoldrick _v._ Berwind-White Coal Mining Company,[601] in which it was held that in the absence of Congressional action, a New York City general sales tax was applicable to sales of coal under contracts entered into within the municipality and calling for delivery therein. Speaking for the majority, Justice Stone declared any "distinction * * * between a tax laid on sales made, without previous contract, after the merchandise had crossed the State boundary, and sales, the contracts for which when made contemplate or require the transportation of merchandise interstate to the taxing State," to be "without the support of reason or authority";[602] and the Robbins case was held to be "narrowly limited to fixed-sum license taxes imposed on the business of soliciting order for the purchase of goods to be shipped interstate, * * *"[603] Three Justices, speaking by Chief Justice Hughes, dissented. Three companion cases decided the same day were found to follow the Berwind-White pattern,[604] while a fourth was held not to, on the ground that foreign commerce was involved.[605] For the time being Robbins and family looked to be on the way out. END OF THE DEPRESSION CASES Two cases, decided respectively in 1944 and 1946, signalized the end of the Depression. In McLeod _v._ Dilworth Co.,[606] a divided Court ruled that a sales tax could not be validly imposed by a State on sales to its residents which were consummated by acceptance of orders in, and shipment of goods from another State, in which title passed upon delivery to the carrier. Said Justice Frankfurter for the majority: "A sales tax and a use tax in many instances may bring about the same result. But they are different in conception, are assessments upon different transactions, * * * A sales tax is a tax on the freedom of purchase * * * A use tax is a tax on the enjoyment of that which was purchased. In view of the differences in the basis of these two taxes and the differences in the relation of the taxing State to them, a tax on an interstate sale like the one before us and unlike the tax on the enjoyment of the goods sold, involves an assumption of power by a State which the Commerce Clause was meant to end."[607] He also "distinguished" the Berwind-White case--just as it had "distinguished" the Robbins case--but not to the satisfaction of three of his brethren, who found the decision to mark a retreat from the Berwind-White case.[608] The second case, Nippert _v._ Richmond,[609] involved a municipal ordinance imposing upon solicitors of orders for goods a license tax of fifty dollars and one-half of one per cent of the gross earnings, commissions, etc., for the preceding year in excess of $1,000. Speaking for the same majority that had decided McLeod _v._ Dilworth Co., Justice Rutledge found that "as the case has been made, the issue is substantially whether the long line of so-called 'drummer cases' beginning with Robbins _v._ Shelby County Taxing District, 120 U.S. 489, shall be adhered to in result or shall now be overruled in the light of what attorneys for the city say are recent trends requiring that outcome."[610] The tax was held void, Berwind-White being not only "distinguished" this time, but also "explained." "The drummer," said Justice Rutledge, "is a figure representative of a by-gone day," citing Wright, Hawkers and Walkers in Early America (1927). "But his modern prototype persists under more euphonious appellations. So endure the basic reasons which brought about his protection from the kind of local favoritism the facts of this case typify."[611] A year later a Mississippi "privilege tax" laid upon each person soliciting business for a laundry not licensed in the State, was set aside directly on the authority of the Robbins case.[612] It would appear that Robbins and his numerous progeny can once more claim full constitutional status.[613] TAXATION OF CARRIAGE OF PERSONS Whether the carriage of persons from one State to another was a branch of interstate commerce was a question which the Court was able to side-step in Gibbons _v._ Ogden.[614] A quarter of a century later, however, an affirmative answer was suggested in the Passenger Cases,[615] in which a State tax on each passenger arriving on a vessel from a foreign country was set aside, though chiefly in reliance on existing treaties and acts of Congress. But similar cases arising after the Civil War were disposed of by direct recourse to the commerce clause.[616] Meantime, in 1865, the newly admitted State of Nevada, in an endeavor to prevent a threatened dissipation of its population, levied a special tax on railroad and stage companies for every passenger they carried out of the State, and in Crandall _v._ Nevada[617] this act was held void on the general ground that the National Government had at all times the right to require the services of its citizens at the seat of government and they the correlative right to visit the seat of government, rights which, if the Nevada tax was valid, were at the mercy of any State, the power to tax being without limit. Reference was also made to the right of the government to transport troops at all times by the most expeditious method. Two of the Justices, however, rejected this line of reasoning and held the act to be void under the commerce clause.[618] But it was not until 1885 that the Court, in deciding Gloucester Ferry Company _v._ Pennsylvania,[619] stated flatly that "Commerce among the States * * * includes the transportation of persons,"[620] and hence was not taxable by the States, a proposition which is still good law.[621] Four years earlier it had been held that the transmission of telegraph messages from one State to another, being interstate commerce, was something that the State of origin could not tax.[622] State Taxation of the Interstate Commerce Privilege: Foreign Corporations DOCTRINAL HISTORY In the famous case of Paul _v._ Virginia,[623] decided in 1869, it was held that a corporation chartered by one State could enter other States only with their assent, which might "be granted upon such terms and conditions as those States may think proper to impose";[624] but along with this holding went the statement that "the power conferred upon Congress to regulate commerce includes as well commerce carried on by corporations as commerce carried on by individuals."[625] And in the State Freight Tax Case it is implied that no State can regulate or restrict the right of a "foreign" corporation--one chartered by another State--to carry on interstate commerce within its borders,[626] an implication which soon became explicit. In Leloup _v._ Port of Mobile,[627] decided in 1888, the Court had before it a license tax on a telegraph company which was engaged in both domestic and interstate business. The general nature of the exaction did not suffice to save it. Said the Court: "The question is squarely presented to us, * * *, whether a State, as a condition of doing business within its jurisdiction, may exact a license tax from a telegraph company, a large part of whose business is the transmission of messages from one State to another and between the United States and foreign countries, and which is invested with the powers and privileges conferred by the act of Congress passed July 24, 1866, and other acts incorporated in Title LXV of the Revised Statutes? Can a State prohibit such a company from doing such a business within its jurisdiction, unless it will pay a tax and procure a license for the privilege? If it can, it can exclude such companies, and prohibit the transaction of such business altogether. We are not prepared to say that this can be done."[628] In Crutcher _v._ Kentucky[629] a like result was reached, without assistance from an act of Congress, with respect to a Kentucky statute which provided that the agent of an express company not incorporated by the laws of that State should not carry on business there without first obtaining a license from the State, and that, preliminary thereto, he must satisfy the auditor of the State that the company he represented was possessed of an actual capital of at least $150,000. The act was held to be a regulation of interstate commerce so far as applied to a corporation of another State in that business. "To carry on interstate commerce," said the Court, "is not a franchise or a privilege granted by the State; it is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States; and the accession of mere corporate facilities, as a matter of convenience in carrying on their business, cannot have the effect of depriving them of such right, unless Congress should see fit to interpose some contrary regulation on the subject."[630] LICENSE TAXES The demand for what in effect is a license is, of course, capable of assuming various guises. In Ozark Pipe Line _v._ Monier[631] an annual franchise tax on foreign corporations equal to one-tenth of one per cent of the par value of their capital stock and surplus employed in business in the State was found to be a privilege tax, and hence one which could not be exacted of a foreign corporation whose business in the taxing State consisted exclusively of the operation of a pipe line for transporting petroleum through the State in interstate commerce, and of activities the sole purpose of which was the furtherance of its interstate business. Likewise a Massachusetts tax based on "the corporate surplus" of a foreign corporation having only an office in the State for the transaction of interstate business was held in Alpha Portland Cement Co. _v._ Massachusetts to be virtually an attempt to license interstate commerce.[632] In the same category of unconstitutional taxation of the interstate commerce privilege, the Court has also included the following: a State "franchise" tax on a foreign corporation, whose sole business in the State consisted in landing, storing and selling in the original package goods imported by it from abroad, the tax being imposed annually on the doing of such business and measured by the value of the goods on hand;[633] a State privilege or occupation tax on every corporation engaged in the business of operating and maintaining telephone lines and furnishing telephone service in the State, of so much for each telephonic instrument controlled and operated by it, as applied to a company furnishing both interstate and intrastate service, and employing the same telephones, wires, etc., in both as integrated parts of its system;[634] a State occupation tax measured by the entire gross receipts of the business of a radio broadcasting station, licensed by the Federal Communications Commission, and engaged in broadcasting advertising "programs" for customers for hire to listeners within and beyond the State, since it did not "appear that any of the taxed income ... [was] allocable to interstate commerce";[635] a State occupation tax on the business of loading and unloading vessels engaged in interstate and foreign commerce;[636] an Indiana income tax imposed on the gross receipts from commerce inasmuch as the tax reached indiscriminately and without apportionment the gross income from both interstate commerce and intrastate activities;[637] an Arkansas statute making entry into the State of motor vehicles carrying more than twenty gallons of gasoline conditional on the payment of an excise on the excess.[638] DOCTRINE OF WESTERN UNION TELEGRAPH _v._ KANSAS EX REL. COLEMAN One of the most striking concessions ever made by the Court to the interstate commercial interest at the expense of the State's taxing power was that which appeared originally in 1910, in Western Union Telegraph. Co. _v._ Kansas ex rel. Coleman,[639] which involved a percentage tax upon the total capitalization of all foreign corporations doing or seeking to do a local business in the State. The Court pronounced the tax, as to the Western Union, a burden upon the company's interstate business and upon its property located and used outside the State, and hence void under both the commerce clause and the due process of law clause of the Fourteenth Amendment. The decision was substantially aided by the fact that the company had been doing a general telegraphic business within the State for more than fifty years without having been subjected to such an exaction.[640] SPREAD OF THE DOCTRINE The doctrine of the case, however, soon cast off these initial limitations. In Looney _v._ Crane Company[641] a similar tax by the State of Texas was disallowed as to an Illinois corporation, engaged in its home State in the manufacture of hardware, but maintaining in Texas depots and warehouses from which orders were filled and sales made, likewise, in International Paper Company _v._ Massachusetts,[642] it was clearly stated that "the immunity of interstate commerce from State taxation" is not confined to what is done by carriers in such commerce, but "is universal and covers every class of ... [interstate] commerce, including that conducted by merchants and trading companies." On the same occasion the general proposition was laid down that "the power of a State to regulate the transaction of a local business within its borders by a foreign corporation, ... is not unrestricted or absolute, but must be exerted in subordination to the limitations which the Constitution places on State action."[643] STATUS OF THE DOCTRINE TODAY The precise standing of this doctrine is, nevertheless, seriously clouded by certain more recent holdings. In Sprout _v._ South Bend,[644] decided in 1928, the doctrine was still applied, to disallow a license tax on concerns operating a bus interstate. Pointing to the fact that the ordinance made no distinction between busses engaged exclusively interstate and those engaged intrastate or both interstate and intrastate, the Court said: "In order that the fee or tax shall be valid, it must appear that it is imposed solely on account of the intrastate business; that the amount exacted is not increased because of the interstate business done; that one engaged exclusively in interstate commerce would not be subject to the imposition; and that the person taxed could discontinue the intrastate business without withdrawing also from the interstate business."[645] Likewise, in Cooney _v._ Mountain States Telephone and Telegraph Co., the Court asserted that to sustain a State occupation tax on one whose business is both interstate and intrastate, "it must appear * * *, and that the one [who is] taxed could discontinue the intrastate business without [also] withdrawing from the interstate business."[646] A year later, nevertheless, Justice Brandeis, speaking for the Court in Pacific Telephone and Telegraph Co. _v._ Tax Commission,[647] asserted flatly: "No decision of this Court lends support to the proposition that an occupation tax upon local business, otherwise valid, must be held void merely because the local and interstate branches are for some reason inseparable."[648] An occupation tax, like other taxes and expenses, lessens the benefit derived by interstate commerce from the joint operation with it of the intrastate business of the carrier; but it is not an undue burden on interstate commerce where, as in this case, the advantage to the carrier, and to the interstate commerce, of continuing the intrastate business is greatly in excess of the tax. And subsequent holdings in cases involving foreign corporations doing a mixed business, comprising both interstate and intrastate elements, have tended on the whole to restore the rule stated in Paul _v._ Virginia[649] shortly after the Civil War, that the Constitution does not confer upon a foreign corporation the right to engage in local business in a State without its assent, which it may give on such terms as it chooses.[650] State Taxation of Property Engaged in, and of the Proceeds From, Interstate Commerce GENERAL ISSUE In this area of Constitutional Law the principle asserted in the State Freight Tax Case,[651] that a State may not tax interstate commerce, is confronted with the principle that a State may tax all purely domestic business within its borders and all property "within its jurisdiction." Inasmuch as most large concerns prosecute both an interstate and a domestic business, while the instrumentalities of interstate commerce and the pecuniary returns from such commerce are ordinarily property within the jurisdiction of some State or other, the task before the Court in drawing the line between the immunity claimed by interstate business on the one hand and the prerogatives claimed by local power on the other has at times involved it in self-contradiction, as successive developments have brought into prominence novel aspects of its complex problem or have altered the perspective in which the interests competing for its protection have appeared. In this field words of the late Justice Rutledge, spoken in 1946, are especially applicable: "For cleanly as the commerce clause has worked affirmatively on the whole, its implied negative operation on State power has been uneven, at times highly variable. * * * Into what is thus left open for inference to fill, divergent ideas of meaning may be read much more readily than into what has been made explicit by affirmation. That possibility is broadened immeasurably when not logic alone, but large choices of policy, affected in this instance by evolving experience of federalism, control in giving content to the implied negation."[652] DEVELOPMENT OF THE APPORTIONMENT RULE At the outset the Court appears to have thought that it could solve all difficulties by the simple device of falling back on Marshall's opinion in Brown _v._ Maryland;[653] and on the same day that it set aside Pennsylvania's freight tax by appeal to that transcendent precedent, it sustained, by reference to the same authority, a Pennsylvania tax on the gross receipts of all railroads chartered by it, the theory being that such receipts had, by tax time, become "part of the mass of property of the State."[654] This precedent stood fourteen years, being at last superseded by a ruling in which substantially the same tax was held void as to a Pennsylvania chartered steamship company.[655] A year later the Court sustained Massachusetts in levying a tax on Western Union, a New York corporation, on account of property owned and used by it in the State, taking as the basis of the assessment such proportion of the value of its capital stock as the length of its lines within the State bore to their entire length throughout the country.[656] The tax was characterized by the Court as an attempt by Massachusetts "to ascertain the just amount which any corporation engaged in business within its limits shall pay as a contribution to the support of its government upon the amount and value of the capital so employed by it therein."[657] And drawing on certain decisions in which it had sought to limit the principle of tax exemption as applied in the case of railroads chartered by the United States, it expressed concern that "the necessary powers of the States" should not be destroyed or "their efficient exercise" be prevented.[658] Three years later Pennsylvania, still in quest of revenue, was sustained in applying the Massachusetts idea to Pullman's Palace Car Company, a "foreign" corporation.[659] Pointing to the fact that the company had at all times substantially the same number of cars within the State and continuously and constantly used there a portion of its property, the Court commended the State for taking "as a basis of assessment such proportion of the capital stock of the company as the number of miles over which it ran cars within the State bore to the whole number of miles, in that and other States, * * *" This, said the Court, was "a just and equitable method of assessment;" one which, "if it were adopted by all the States through which these cars ran, the company would be assessed upon the whole value of its capital stock, and no more."[660] THE UNIT RULE And pursuing the same course of thought, the Court, in Adams Express Company _v._ Ohio,[661] decided in 1897, sustained that State in taxing property worth less than $70,000.00 at a valuation of more than half a million, on the ground that the latter figure did not exceed, in relation to the total capital value of the company, the proportion borne by the railway mileage which the company covered in Ohio to the total mileage which it covered in all States. To the objection that "the intangible values" reached by the tax were derived from interstate commerce, the Court replied with the "cardinal rule * * * that whatever property is worth for purposes of income and sale it is also worth for purposes of taxation,"[662] which obviously does not meet the issue. What the case indubitably establishes is that a State may tax property within its limits "as part of a going concern" and hence "at its value as it is in its organic relations," although those relations constitute interstate commerce.[663] In short, values created by interstate commerce _are_ taxed. Thus emerged the concept of an "apportioned" tax, or as it is called when applied to the problem of property valuation, the "unit rule," which till 1938 afforded the Court its chief reliance in the field of Constitutional Law now under review. The theory underlying the concept appears to be that it is always possible for a State to devise a formula whereby it may assign to the property employed in interstate commerce within its limits, or to the proceeds from such commerce, a value which it may tax or by which it may "measure" a tax, without unconstitutionally burdening or interfering with interstate commerce, while at the same time exacting from it a fair return for the protection which the State gives it. The question in each case is, of course, whether the State has guessed right. APPORTIONED PROPERTY TAXES In reliance on the apportionment concept the Court has at various times sustained, in the case of a sleeping car company, as we have seen, a valuation based on the ratio of the miles of track over which the company runs within the State to the whole track mileage over which it runs;[664] in the case of a railroad company, a valuation based on the ratio of its mileage within the State to its total mileage;[665] in the case of a telegraph company, a valuation based upon the ratio of its length of line within the State to its total length;[666] in the case of an express company, as we have just seen, a valuation based upon the ratio of miles covered by it in the State to the mileage covered by it in all States.[667] Also, a tax has been upheld as to a railroad line whose principal business was hauling ore from mines in the taxing State to terminal docks outside the State, where the line and the docks were treated by the railway as a unit, the charge for the dock service being absorbed in the charge per ton transported; and where the evidence did not show that the mileage value of the part of the line outside of the taxing State, with the docks included, was greater than the mileage value of part within it.[668] Nor does the commerce clause preclude the assessment of an interstate railway within a State by taking such part of the value of the railroad's entire system, less the value of its localized property, such as terminal buildings, shops and nonoperating real estate, as is represented by the ratio which the railroad's mileage within the State bears to its total mileage.[669] To the objection that the mileage formula was inapplicable in this instance because of the disparity of the revenue-producing capacity between the lines in and out of the State, the Court answered that mathematical exactitude in making an apportionment had never been a constitutional requirement. "Wherever," it explained, "the State's taxing authorities have been held to have intruded upon the protected domain of interstate commerce in their use of a mileage formula, the special circumstances of the particular situation, in the view which this Court took of them, precluded a defensible utilization of the mileage basis."[670] The principle of apportionment is, moreover, applicable to the intangible property of a company engaged in both interstate and local commerce, as well as to its tangible property.[671] APPORTIONED GROSS RECEIPTS TAXES The first State to attempt to employ the apportionment device in order to tax the gross receipts of companies engaged in interstate commerce was Maine, in connection with a so-called "franchise tax," which was levied on such proportion of the revenues of railroads operating in the State as their mileage there bore to their total mileage. In Maine _v._ Grand Trunk Railway Company,[672] a sharply divided Court upheld the tax on the basis of its designation, giving scant attention to its apportionment feature. Said Justice Field for the majority: "The privilege of exercising the franchises of a corporation within a State is generally one of value, and often of great value, and the subject of earnest contention. It is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government. As the granting of the privilege rests entirely in the discretion of the State, whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions, pecuniary or otherwise, as the State in its judgment may deem most conducive to its interests or policy."[673] Four Justices, speaking by Justice Bradley, protested forcefully that the decision directly contradicted a whole series of decisions holding that the States are without power to tax interstate commerce;[674] and seventeen years later another sharply divided Court endorsed this contention when it overturned a Texas gross receipts tax drawn on the lines of the earlier Maine statute.[675] The Maine tax, however, the later Court suggested, had been in the nature of a commutation tax in lieu of all taxes, which the Texas tax was not.[676] FRANCHISE TAXES Today the term, franchise tax, possesses no specific saving quality of its own. If the tax is merely a "just equivalent" of other taxes it is valid however calculated.[677] Conversely, when such taxes are in addition to other taxes then their fate will be determined by the same rules as would apply had the label been omitted.[678] More precisely, the rule governing this species of tax is ordinarily the apportionment concept, and if the basis of apportionment adopted by the taxing State is deemed by the Court to be a fair and reasonable one, the tax will be sustained; otherwise, not. Thus a franchise tax may be measured by such proportion of the company's net income as its capital invested in the taxing State and its business carried on there bear to its total capital and business;[679] also by the net income justly attributable to business done within the State although a part of this was derived from foreign or interstate commerce;[680] also by such proportion of the company's outstanding capital stock, surplus and undivided profits, plus its long-term obligations, as the gross receipts of its local business bear to its total gross receipts from its entire business;[681] also by such proportion of the company's total capital stock as the value of its property in the taxing State and of the business done there bears to the total value of its property and of its business.[682] On the other hand, a "franchise" tax on the unapportioned gross receipts of railroad companies engaged in interstate commerce, was, as we saw above, held void;[683] as was also one which was measured by assigning to the company's property in the State the same proportion of the total value of its stocks and bonds as its mileage in the State bore to its total mileage, no account being taken of the greater cost of construction of the company's lines in other States or of its valuable terminals elsewhere.[684] Other examples were given earlier.[685] GROSS RECEIPTS TAXES, CLASSES OF The late Justice Rutledge classified gross receipts taxes which have been sustained by the Court as follows: (a) those which were judged to be fairly apportioned;[686] (b) those which were justified on a "local incidence" theory, or the burden of which on interstate commerce was held to be "remote";[687] (c) those which were justified as not inviting the danger of multiple taxation of interstate commerce.[688] Gross receipts taxes which, on the other hand, have been invalidated under the commerce clause he placed in the following groups: (a) those which were held not to be fairly apportioned;[689] (b) those which were not apportioned at all and were bound to subject interstate commerce to the risk of multiple taxation;[690] (c) those in which a discriminatory element was detected in that they were directed exclusively at transportation or communication;[691] (d) those in which there was no discrimination but a possible multiple burden;[692] and, of course, any tax which it disallows the Court is always free to stigmatize as an unconstitutional attempt to tax or license the interstate commerce privilege.[693] "MULTIPLE TAXATION" TEST That the Depression--allowing for the customary judicial lag--greatly altered the Court's conception of Congress's powers under the commerce clause, was pointed out earlier.[694] To a less, but appreciable degree, it also affected its views as to the allowable scope under the clause of the taxing power of the States, a majority of which were on the verge of bankruptcy. The more evident proofs of this fact occurred in relation to State taxation of the subject matter of interstate commerce, as is indicated above.[695] But a certain revision of doctrine, apparently temporary in nature, however, is to be seen in the connection with State taxes impinging on property engaged in interstate commerce and the revenues from such commerce, the principal manifestation of which is to be seen in the emphasis which was for a time given the "multiple taxation" test. Thus in his opinion in the Western Live Stock Case,[696] cited above, Justice Stone seems to be engaged in an endeavor to erect this into an almost exclusive test of the validity, or invalidity of State taxation affecting interstate commerce. "It was not," he there remarks, "the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of State tax burden even though it increases the cost of doing the business. 'Even interstate business must pay its way,' * * * and the bare fact that one is carrying on interstate commerce does not relieve him from many forms of State taxation which add to the cost of his business."[697] Then citing cases, he continues: "All of these taxes in one way or another add to the expense of carrying on interstate commerce, and in that sense burden it; but they are not for that reason prohibited. On the other hand, local taxes, measured by gross receipts from interstate commerce, have often been pronounced unconstitutional. The vice characteristic of those which have been held invalid is that they have placed on the commerce burdens of such a nature as to be capable, in point of substance, of being imposed * * * [or added to] with equal right by every State which the commerce touches, merely because interstate commerce is being done, so that without the protection of the commerce clause it would bear cumulative burdens not imposed on local commerce. * * * The multiplication of State taxes measured by the gross receipts from interstate transactions would spell the destruction of interstate commerce and renew the barriers to interstate trade which it was the object of the commerce clause to remove," citing cases, most of which have been discussed above.[698] And speaking again for the Court eleven months later, in Gwin, White and Prince _v._ Henneford,[699] Justice Stone applied the test to invalidate a State of Washington tax. "Such a tax," said he, "at least when not apportioned to the activities carried on within the State, * * * would, if sustained, expose it [interstate commerce] to multiple tax burdens, each measured by the entire amount of the commerce, to which local commerce is not subject." The tax thus discriminated against interstate commerce; and threatened to "reestablish the barriers to interstate trade which it was the object of the commerce clause to remove."[700] The adoption by the Court of the multiple taxation principle as an exclusive test of State taxing power in relation to interstate commerce would have enlarged the former; but this was not the sole reason for its temporary vogue with the Court, or at least a section of it. Discontent with the difficulties and uncertainties of the apportionment rule also played a great part. Thus in his concurring opinion in the Gwin case, Justice Butler, speaking for himself and Justice McReynolds after showing the instability of decisions in this area of Constitutional Law, contend that "the problems of conjectured 'multiple taxation' or 'apportionment'" should be left to Congress,[701] a suggestion which Justice Black, speaking also for Justices Frankfurter and Douglas a year later, made the basis of a dissenting opinion,[702] from the doctrines of which, however, Justice Frankfurter appears since to have recanted.[703] RECENT CASES In Freedman _v._ Hewit,[704] decided in 1946, the Court held void as an "unconstitutional burden on interstate commerce" an Indiana gross income tax of the proceeds from certain securities sent outside the State to be sold. Justice Frankfurter spoke for the Court; Justice Rutledge concurred in an opinion deploring the majority's failure to employ the multiple taxation test;[705] three Justices dissented.[706] In Joseph _v._ Carter and Weekes Stevedoring Co.,[707] also decided in 1947, the Court, reaffirming an earlier ruling, held void the application of a Washington gross receipts tax to the receipts of a stevedoring company from loading and unloading vessels employed in interstate and foreign commerce, or to the privilege of engaging in such business measured by their receipts. Said Justice Reed for the Court: "Although State laws do not discriminate against interstate commerce or * * * subject it to the cumulative burden of multiple levies, those laws may be unconstitutional because they burden or interfere with [interstate] commerce."[708] This time Justice Rutledge was among the dissenters so far as interstate commerce was concerned.[709] In Central Greyhound Lines, Inc. _v._ Mealey,[710] decided in 1948, five members of the Court ruled that a New York tax on the gross income of public utilities doing business in the State could not be constitutionally imposed on a carrier's unapportioned receipts from continuous transportation between termini in the State over a route a material part of which passes through other States. Justice Frankfurter, speaking for the Court, held, however, that the tax was sustainable as to receipts apportioned as to the mileage within the State.[711] Justice Rutledge concurred without opinion. Justice Murphy, for himself and Justices Black and Douglas, thought the tax was on an essentially local activity and that the transportation through other States was "a mere geographic incident," conceding at the same time, that this view invited the other States involved to levy similar taxes and exposed the company to the danger of multiple taxation. In Memphis Natural Gas Co. _v._ Stone,[712] also of the 1948 grist, a Mississippi franchise tax, measured by the value of capital invested or employed in the State, was sustained in the case of a gas pipeline company a portion of whose line passed through the State but which did no local business there. Three Justices, speaking by Justice Reed, held that the tax was on the intrastate activities of the company in maintaining its facilities there, and was no more burdensome than the concededly valid _ad valorem_ tax on the company's property in the State. Justice Rutledge held that the tax was valid because it did not discriminate against interstate commerce nor invite multiple taxation, while Justice Black concurred without opinion. Four Justices, speaking by Justice Frankfurter, contended that the pipeline already paid the _ad valorem_ tax to which Justice Reed had adverted, and that the franchise tax must therefore be regarded as being on the interstate commerce privilege. This survey of recent cases leaves the impression that the Court is at loose ends for intermediate guiding principles in this field of Constitutional Law. The "leave it to Congress" formula is evidently in the discard, although Justice Black's successive dissents without opinion may indicate that he still thinks it sound. The multiple tax test seems to be in an equally bad way, with both Chief Justice Stone and Justice Rutledge in the grave. The concept of an apportioned tax still has some vitality however, although just how much is difficult to assess. Thus in Interstate Oil Pipe Line Co. _v._ Stone,[713] which was decided in 1949, we find Justice Rutledge, speaking for himself and Justices Black, Douglas, and Murphy, endorsing the view that Mississippi was within her rights in imposing on a Delaware corporation, as a condition of doing a local business, a "privilege" tax equal to two per cent of its intrastate business even though the exaction amounted to "a 'direct' tax on the 'privilege' of engaging in interstate commerce," an assertion which was countered by one just as positive, and also endorsed by four Justices, that no State may "levy privilege, excise or franchise taxes on a foreign corporation for the privilege of carrying on or the actual doing of solely interstate business," even though the tax is not discriminatory and is fairly apportioned between the corporation's intrastate and interstate business. The tax in controversy was sustained by the vote of the ninth Justice, who construed it as being levied only on the privilege of engaging in intrastate commerce, a conclusion which obviously ignores the question of the tax's actual impact on interstate commerce, the precise question on which many previous decisions have turned.[714] TAXES ON NET INCOME The leading case under this caption is United States Glue Co. _v._ Oak Creek[715] where it was held that the State of Wisconsin, in laying a general income tax upon the gains and profits of a domestic corporation, was entitled to include in the computation the net income derived from transportations in interstate commerce. Pointing out the difference between such a tax and one on gross receipts, the Court said the latter "affects each transaction in proportion to its magnitude and irrespective of whether it is profitable or otherwise. Conceivably it may be sufficient to make the difference between profit and loss, or to so diminish the profit as to impede or discourage the conduct of the commerce. A tax upon the net profits has not the same deterrent effect, since it does not arise at all unless a gain is shown over and above expenses and losses, and the tax cannot be heavy unless the profits are large." Such a tax "constitutes one of the ordinary and general burdens of government, from which persons and corporations otherwise subject to the jurisdiction of the States are not exempted * * * because they happen to be engaged in commerce among the States."[716] Adhering to this precedent, the Court has held that a tax upon the net income of a nonresident from business carried on by him in the State is not a burden on interstate commerce merely because the products of the business are shipped out of the State;[717] also that a tax which is levied upon the proportion of the net profits of a foreign corporation earned by operations conducted within the taxing State is valid, if the method of allocation employed be not arbitrary or unreasonable.[718] Where, however, the method of allocating the net income of a foreign corporation attributed to the State an amount of income out of all proportion to the business there transacted by the corporation, it was held void.[719] Also, a State may impose a tax upon the net income of property, as distinguished from the net income of him who owns or operates it, although the property is used in interstate commerce;[720] also a "franchise tax" measured by the net income justly attributable to business done by corporations within the State, although part of the income so attributable comes from interstate and foreign commerce;[721] also a tax on corporate net earnings derived from business done wholly within the State may be applied to the income of a foreign pipeline corporation which is commercially domiciled there and which pipes natural gas into that State for delivery to, and sale by, a local distributing corporation to local consumers.[722] Indeed it was asserted that even if the taxpayer's business were wholly interstate commerce, such a nondiscriminatory tax upon its net income "is not prohibited by the commerce clause," there being no showing that the income was not on net earnings partly attributable to the taxing State;[723] but a more recent holding appears to contradict this position.[724] MISCELLANEOUS TAXES AFFECTING INTERSTATE COMMERCE Vessels In Gloucester Ferry Company _v._ Pennsylvania,[725] decided in 1885, the Court held inapplicable to a New Jersey corporation which was engaged solely in transporting passengers across the Delaware River and entered Pennsylvania only to discharge and receive passengers and freight, a statute which taxed the capital stock of all corporations doing business within the State. Such transactions, the Court held, were interstate commerce; nor were the company's vessels subject to taxation by Pennsylvania, their taxing _situs_ being in the company's home State. The only property held by the company in Pennsylvania was the lease there of a wharf which could be taxed by the State according to its appraised value; and the State could also levy reasonable charges by way of tolls for the use of such facilities as it might itself furnish for the carrying on of commerce. This ruling rested on two earlier ones. In 1855, the Court had held that vessels registered in New York, owned by a New York corporation, and plying between New York City and San Francisco had the former city for their home port, and were not taxable by California where they remained no longer than necessary to discharge passengers and freight;[726] and in 1877 it had sustained Keokuk, Iowa in charging tolls for the use by vessels plying the Mississippi of wharves owned by the municipality, said tolls being reasonable and not discriminatory as between interstate and intrastate commerce.[727] Today it is still the general rule as to vessels plying between ports of different States and engaged in the coastwise trade, that the domicile of the owner is deemed to be the _situs_ of the vessel for purposes of taxation,[728] unless the vessel has acquired actual _situs_ in another State, by continuous employment there, in which event it may be taxed there.[729] Recently, however, this long standing rule has been amended by the addition to it of the apportionment rule as developed in the Pullman case. This occurred in Ott _v._ Mississippi Barge Line Co.,[730] decided in 1949, in which the Court sustained Louisiana in levying an _ad valorem_ tax on vessels owned by an interstate carrier and used within the State, the assessment for the tax being based on the ratio between the number of miles of the carrier's lines within the State and its total mileage. Airplanes When, however, it was confronted by an attempt on the part of the State of Minnesota to impose a personal property tax on the entire air fleet owned and operated by a company in interstate commerce although only a part of it was in the State on tax day, the Court found itself unable to recruit a majority for any of the above formulas.[731] Pointing to the fact that the company was a Minnesota corporation and that its principal place of business was located in the State, Justice Frankfurter for himself and three others wished to stress the prerogatives of the State of domicile.[732] Justice Black, concurring in this view, added the caveat that the taxing rights of other States should not be foreclosed and made reference to his "leave it to Congress" notion.[733] Justice Jackson, after speaking lightly of the apportionment theory,[734] joined the affirming brethren on the ground that the record seemed "to establish Minnesota as a 'home port' within the meaning of the old and somewhat neglected but to me wise authorities cited," to wit, the Hays case and those decided by analogy to it.[735] Four Justices, speaking by Chief Justice Stone dissented, urging the Pullman Case[736] as an applicable model and the fact that "the rationale found necessary to support the present tax leaves other States free to impose comparable taxes on the same property."[737] Evidently in this area of Constitutional Law the Court is still much at sea or better perhaps, "up in the air." Motor Vehicles In the matter of motor vehicle taxation, on the other hand, durable and consistent results have been achieved. This is because most such taxation has been readily classifiable as the exaction of a toll for the use of the State's highways, and the only question was whether the toll was exorbitant. Moreover, such taxation is apt to be designed not merely to raise revenue but to promote safety on the highways. In the leading case, Hendrick _v._ Maryland,[738] decided in 1915, the Court took cognizance of the fact that "the movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves";[739] and on this factual basis it has held that registration may be required by a State for out-of-State vehicles operated therein,[740] or passing through from one State to another;[741] that a special fee may be exacted for the privilege of transporting motor vehicles on their own wheels in caravans,[742] unless excessive;[743] that taxes may also be imposed on carriers based on capacity[744] or mileage,[745] or as a flat fee;[746] but that a privilege tax on motor busses operated exclusively in interstate commerce, cannot be sustained unless it appears affirmatively in some way, that it is levied only as compensation for use of the highways in the State or to defray the expense of regulating motor traffic.[747] Later decisions follow in the same general track,[748] the most recent one being Capitol Greyhound Lines _v._ Brice,[749] in which the Court, speaking by Justice Black passed upon a Maryland excise tax on the fair market value of motor vehicles used in interstate commerce as a condition to the issuance of certificates of title as prerequisites to the registration and operation of motor vehicles in the State. Because the tax was applied to vehicles used in both interstate and intrastate commerce and the proceeds were used for road purposes and because the Court considered the tax, though actually separate, to be an adjunct of Maryland's mileage tax, it was able to find that the total charge varied substantially with the mileage travelled, and on that ground sustained it, being constant, it said with "rough approximation rather than precision," no showing having been made that Maryland's taxes considered as a whole exceeded "fair compensation for the privilege of using State roads." Justice Frankfurter, who was joined by Justice Jackson, dissented, and in so doing contributed as an Appendix to his opinion a useful analysis of decisions involving State taxation of motor vehicles engaged in interstate commerce, for highway purposes.[750] Public Utilities; Regulatory Charges "The principles governing decision [in this class of cases] have repeatedly been announced and were not questioned below.[751] In the exercise of its police power the State may provide for the supervision and regulation of public utilities, such as railroads; may delegate the duty to an officer or commission; and may exact the reasonable cost of such supervision and regulation from the utilities concerned and allocate the exaction amongst the members of the affected class without violating the rule of equality imposed by the Fourteenth Amendment.[752] The supervision and regulation of the local structures and activities of a corporation engaged in interstate commerce, and the imposition of the reasonable expense thereof upon such corporation, is not a burden upon, or regulation of, interstate commerce in violation of the commerce clause of the Constitution.[753] A law exhibiting the intent to impose a compensatory fee for such a legitimate purpose is _prima facie_ reasonable.[754] If the exaction be so unreasonable and disproportionate to the service as to impugn the good faith of the law[755] it cannot stand either under the commerce clause or the Fourteenth Amendment.[756] The State is not bound to adjust the charge after the fact, but may, in anticipation, fix what the legislature deems to be a fair fee for the expected service, the presumption being that if, in practice, the sum charged appears inordinate the legislative body will reduce it in the light of experience.[757] Such a statute may, in spite of the presumption of validity, show on its face that some part of the exaction is to be used for a purpose other than the legitimate one of supervision and regulation and may, for that reason, be void.[758] And a statute fair upon its face may be shown to be void and unenforceable on account of its actual operation.[759] If the exaction be clearly excessive it is bad _in toto_ and the State cannot collect any part of it."[760] Dominance of Congress The Supreme Court has never forgotten the lesson which was administered it by the act of Congress of August 31, 1852,[761] which pronounced the Wheeling Bridge "a lawful structure," thereby setting aside the Court's determination to the contrary earlier the same year.[762] This lesson, stated in the Court's own language thirty years later, was, "It is Congress, and not the Judicial Department, to which the Constitution has given the power to regulate commerce * * *."[763] A parallel to the Wheeling Bridge episode occurred in 1945. THE McCARRAN ACT: REGULATION OF INSURANCE Less than a year after the ruling in United States _v._ South-Eastern Underwriters Association[764] that insurance transactions across State lines constituted interstate commerce, thereby logically establishing their immunity from discriminatory State taxation, Congress passed the McCarran Act[765] authorizing State regulation and taxation of the insurance business; and in Prudential Insurance Co. _v._ Benjamin,[766] a statute of South Carolina which imposed on foreign insurance companies, as a condition of their doing business in the State, an annual tax of three per cent of premiums from business done in South Carolina, while imposing no similar tax on local corporations, was sustained. "Obviously," said Justice Rutledge for the Court, "Congress' purpose was broadly to give support to the existing and future State systems for regulating and taxing the business of insurance. This was done in two ways. One was by removing obstructions which might be thought to flow from its own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation. The other was by declaring expressly and affirmatively that continued State regulation and taxation of this business is in the public interest and that the business and all who engage in it 'shall be subject to' the laws of the several States in these respects. * * * The power of Congress over commerce exercised entirely without reference to coordinated action of the States is not restricted, except as the Constitution expressly provides, by any limitation which forbids it to discriminate against interstate commerce and in favor of local trade. Its plenary scope enables Congress not only to promote but also to prohibit interstate commerce, as it has done frequently and for a great variety of reasons. * * * This broad authority Congress may exercise alone, subject to those limitations, or in conjunction with coordinated action by the States, in which case limitations imposed for the preservation of their powers become inoperative and only those designed to forbid action altogether by any power or combination of powers in our governmental system remain effective."[767] The generality of this language enforces again the sweeping nature of Congress's power to prohibit interstate commerce.[768] The Police Power and Foreign Commerce ORIGIN OF POLICE POWER In Gibbons _v._ Ogden[769] cognizance was taken of the existence in the States of an "immense mass" of legislative power to be used for the protection of their welfare and the promotion of local interests.[770] In Marshall's opinion in Brown _v._ Maryland[771] this power is christened "the Police Power," a name which has since come to supply one of the great titles of Constitutional Law. Counsel for Maryland had argued that if the State was not permitted to _tax_ imports in the original package before they left the hands of the importer, it would also be unable to prevent their introduction into its midst although they might comprise articles dangerous to the public health and safety. "The power to direct the removal of gunpowder," the Chief Justice answered, "is a branch of the police power, which unquestionably remains, and ought to remain, with the States;" and the power to direct "the removal or destruction of infectious or unsound articles" fell within the same category.[772] STATE CURBS ON ENTRY OF FOREIGNERS In short, the power to tax was one thing, the police power something quite different. To concede the former would be to concede a power which could be exercised to any extent and at the will of its possessor;[773] to concede the latter was to concede a power which was limited of its own inherent nature to certain necessary objectives. In New York _v._ Miln,[774] however, the Court which came after Marshall inclined toward the notion of a power of internal police which was also unlimited; and on this ground upheld a New York statute which required masters of all vessels arriving at the port of New York to make reports as to passengers carried, and imposed fines for failure to do so. "We are of opinion," the Court said, "that the act is not a regulation of commerce, but of police." But, when New York, venturing a step further, passed an act to authorize State health commissioners to collect certain fees from captains arriving in ports of that State, and when Massachusetts enacted a statute requiring captains of ships to give bonds as to immigrants landed, both measures were pronounced void, either as conflicting with treaties and laws of the United States or as invading the "exclusive" power of Congress to regulate foreign commerce.[775] Following the Civil War, indeed, New York _v._ Miln was flatly overruled, and a New York statute similar to the one sustained in 1837 was pronounced void as intruding upon Congress's powers.[776] Nothing was gained, said the Court, by invoking "[the police power] * * *, it is clear, from the nature of our complex form of government, that, whenever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the States."[777] At the same time a California statute requiring a bond from shipowners as a condition precedent to their being permitted to land persons whom a State commissioner of immigration might choose to consider as coming within certain enumerated classes, e.g., "debauched women," was also disallowed. Said the Court: "If the right of the States to pass statutes to protect themselves in regard to the criminal, the pauper, and the diseased foreigner, landing within their borders, exists at all, it is limited to such laws as are absolutely necessary for that purpose; and this mere police regulation cannot extend so far as to prevent or obstruct other classes of persons from the right to hold personal and commercial intercourse with the people of the United States."[778] STATE QUARANTINE LAWS On the other hand, it has been repeatedly held that the States may, in the absence of legislation by Congress, enact quarantine laws, even though in effect they thereby regulate foreign commerce; and furthermore that such legislation may be, in the interest of effective enforcement, applied beyond the mere exclusion of diseased persons. Thus in the leading case the State of Louisiana was sustained in authorizing its Board of Health in its discretion to prohibit the introduction into any infected portion of the State of "persons acclimated, unacclimated or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease."[779] At the same time it was emphasized that all such legislation was subject to be supplanted by Congress at any time. STATE GAME PROTECTION AND FOREIGN COMMERCE The Court's tolerance of legal provisions which might not standing alone be constitutional, when they are designed to make legislation within the police power practically enforceable, is also illustrated in connection with State game laws. In the case of Silz _v._ Hesterberg[780] the Court was confronted with a New York statute establishing a closed season for certain game, during which season it was a penal offense to take or possess any of the protected animals, fish or birds; and providing farther that the ban should equally apply "to such fish, game or flesh coming from without the State as to that taken within the State." This provision was held to have been validly applied in the case of a dealer in imported game who had in his possession during the closed season "one dead body of an imported grouse, ..., and taken in Russia." Again the absence of conflicting legislation by Congress was adverted to.[781] The Police Power and Interstate Commerce GENERAL PRINCIPLES In Southern Pacific Co. _v._ Arizona,[782] decided in 1945, Chief Justice Stone made the following systematic statement of principles which have guided the Court in the exercise of its power of judicial review of State legislation affecting interstate commerce: "Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation. Ever since Willson _v._ Black-Bird Creek Marsh Co., 2 Pet. 245, and Cooley _v._ Board of Wardens, 12 How. 299, it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.[783] Thus the states may regulate matters which, because of their number and diversity, may never be adequately dealt with by Congress.[784] When the regulation of matters of local concern is local in character and effect, and its impact on the national commerce does not seriously interfere with its operation, and the consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority.[785] "But ever since Gibbons _v._ Ogden, 9 Wheat. 1, the states have not been deemed to have authority to impede substantially the free flow of commerce from state to state, or to regulate those phases of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.[786] Whether or not this long-recognized distribution of power between the national and the state governments is predicated upon the implications of the commerce clause itself,[787] or upon the presumed intention of Congress, where Congress has not spoken,[788] the result is the same. "In the application of these principles some enactments may be found to be plainly within and others plainly without state power. But between these extremes lies the infinite variety of cases, in which regulation of local matters may also operate as a regulation of commerce, in which reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of the competing demands of the state and national interests involved.[789] "For a hundred years it has been accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation, thus affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, this Court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests.[790] "Congress has undoubted power to redefine the distribution of power over interstate commerce. It may either permit the states to regulate the commerce in a manner which would otherwise not be permissible,[791] or exclude state regulation even of matters of peculiarly local concern which nevertheless affect interstate commerce.[792] "But in general Congress has left it to the courts to formulate the rules thus interpreting the commerce clause in its application, doubtless because it has appreciated the destructive consequences to the commerce of the nation if their protection were withdrawn,[793] and has been aware that in their application state laws will not be invalidated without the support of relevant factual material which will 'afford a sure basis' for an informed judgment.[794] Meanwhile, Congress has accommodated its legislation, as have the states, to these rules as an established feature of our constitutional system. There has thus been left to the states wide scope for the regulation of matters of local state concern, even though it in some measure affects the commerce, provided it does not materially restrict the free flow of commerce across state lines, or interfere with it in matters with respect to which uniformity of regulation is of predominant national concern." State Regulation of Agencies of Interstate Commerce RAILWAY RATE REGULATION In one of the Granger Cases decided in 1877 the Court upheld the power of the legislature of Wisconsin in the absence of legislation by Congress, to prescribe by law the maximum charges to be made by a railway company for fare and freight upon the transportation of persons and property within the State, or taken up outside the State and brought within it, or taken up inside and carried without it.[795] Ten years later, in Wabash, St. Louis and Pacific Railway Co. _v._ Illinois[796] this decision was reversed as to persons and property taken up within the State and transported out of it and as to persons and property brought into the State from outside. As to these, the Court held that the regulation of rates and charges must be uniform and that, therefore, the States had no power to deal with the subject even when Congress had not acted. The following year Congress passed the Interstate Commerce Act[797] to fill the gap created by the Wabash decision. Today, the States still exercise the power to regulate railway rates for the carriage of persons and property taken up and put down within their borders, but do so subject to the rule, which is enforced by the Interstate Commerce Commission, that such rates may not discriminate against interstate commerce.[798] ADEQUATE SERVICE REGULATIONS In many other respects the power still remains with the States to require by statute or administrative order a fair and adequate service for their inhabitants from railway companies, including interstate carriers operating within their borders, so long as the burdens thus imposed upon interstate commerce are, in the judgment of the Court, "reasonable." In an instructive brace of cases the Court was asked to say whether a carrier, in the interest of providing proper local facilities of commerce, could be required to stop its interstate trains. In one case a State regulation requiring all regular passenger trains operating wholly within the State to stop at all county seats was held to have been validly applied to interstate connection trains;[799] while in the other case a statute requiring _all_ passenger trains to stop at county seats was held invalid, there being "other and ample accommodation."[800] Comparing these and other like decisions, the Court has stated "the applicable general doctrine" to be as follows: (1) It is competent for a State to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing--that is, the local conditions being adequately met--the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the Federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement.[801] "There is, however," it later added, "no inevitable test of the instances; the facts in each must be considered."[802] In the same way a State regulation requiring intersecting railways to make track connections was held valid,[803] as was also a regulation requiring equality of car service between shippers;[804] while a regulation requiring the delivery of shipments on private sideways[805] and one requiring cars for local shipments to be furnished on demand, were held to be invalid.[806] In the first brace of decisions, the application of the local regulation to interstate commerce was found not to be "unduly" burdensome; in the second brace the contrary conclusion was reached. SAFETY AND OTHER REGULATIONS A class of regulations as to which the Court has exhibited marked tolerance although they "incidentally" embrace interstate transportation within their operation are those which purport to be in furtherance of "public safety."[807] The leading case is Smith _v._ Alabama,[808] in which the Court held it to be within the police power of the State to require locomotive engineers to be examined and licensed, and to enforce this requirement until Congress should decree otherwise in the case of an engineer employed exclusively in interstate transportation. Also upheld as applicable to interstate trains were a statute which forbade the heating of passenger cars by stoves;[809] a municipal ordinance restricting the speed of trains within city limits;[810] the order of a public utility commission requiring the elimination of grade crossings;[811] a statute requiring electric headlights of a specified minimum capacity;[812] a statute requiring three brakemen on freight trains of over twenty-five cars.[813] In the last case the Court admitted that "under the evidence," there was "some room for controversy" as to whether the statute was necessary, but thought it "not so unreasonable as to justify the Court in adjudging it" to be "merely an arbitrary exercise of power" and "not germane" to objects which the State was entitled to accomplish.[814] And in 1943 the Court sustained, though again in somewhat doubtful terms, the order of a State railroad commission requiring a terminal railroad which served both interstate and local commerce to provide caboose cars for its employees.[815] At times, indeed, the Court has made surprising concession to local views that had nothing to do with safety. Hennington _v._ Georgia,[816] decided in 1896, where was sustained a Georgia statute forbidding freight trains to run on Sunday, is perhaps the supreme example. Whether such an act would pass muster today is doubtful. And earlier statutes reinforcing the legal liability of railroads as common carriers and the carriers of passengers were sustained in the absence of legislation by Congress.[817] INVALID STATE REGULATIONS "The principle that, without controlling Congressional action, a State may not regulate interstate commerce so as substantially to affect its flow or deprive it of needed uniformity in its regulation is not to be avoided by 'simply invoking the convenient apologetics of the police power.'" So remarks Chief Justice Stone in his summarizing opinion cited above, in Southern Pacific Co. _v._ Arizona.[818] Among others he lists the following instances in which State legislation was invalidated on the basis of this rule: "In the Kaw Valley case[819] the Court held that the State was without constitutional power to order a railroad to remove a railroad bridge over which its interstate trains passed, as a means of preventing floods in the district and of improving its drainage, because it was 'not pretended that local welfare needs the removal of the defendants' bridges at the expense of the dominant requirements of commerce with other States, but merely that it would be helped by raising them.' And in Seaboard Air Line R. Co. _v._ Blackwell,[820] it was held that the interference with interstate rail transportation resulting from a State statute requiring as a safety measure that trains come almost to a stop at grade crossings, outweigh the local interest in safety, when it appealed that compliance increased the scheduled running time more than six hours in a distance of one hundred and twenty-three miles."[821] And "more recently in Kelly _v._ Washington,"[822] the Chief Justice continued, "we have pointed out that when a State goes beyond safety measures which are permissible because only local in their effect upon interstate commerce, and 'attempts to impose particular standards as to structure, design, equipment and operation [of vessels plying interstate] which in the judgment of its authorities may be desirable but pass beyond what is plainly essential to safety and seaworthiness, the State will encounter the principle that such requirements, if imposed at all, must be through the action of Congress which can establish a uniform rule. Whether the State in a particular matter goes too far must be left to be determined when the precise question arises.'" STATE REGULATION OF LENGTH OF TRAINS Applying the test of these precedents, the Chief Justice concluded that Arizona, in making it unlawful to operate within the State a railroad train of more than fourteen passenger or seventy freight cars, had gone "too far"; and in support of this conclusion he recites the following facts: "In Arizona, approximately 93% of the freight traffic and 95% of the passenger traffic is interstate. Because of the Train Limit Law appellant is required to haul over 30% more trains in Arizona than would otherwise have been necessary. The record shows a definite relationship between operating costs and the length of trains, the increase in length resulting in a reduction of operating costs per car. The additional cost of operation of trains complying with the Train Limit Law in Arizona amounts for the two railroads traversing that State to about $1,000,000 a year. The reduction in train lengths also impedes efficient operation. More locomotives and more manpower are required; the necessary conversion and reconversion of train lengths at terminals and the delay caused by breaking up and remaking long trains upon entering and leaving the state in order to comply with the law, delays the traffic and diminishes its volume moved in a given time, especially when traffic is heavy. "At present the seventy freight car laws are enforced only in Arizona and Oklahoma, with a fourteen car passenger car limit in Arizona. The record here shows that the enforcement of the Arizona statute results in freight trains being broken up and reformed at the California border and in New Mexico, some distance from the Arizona line. Frequently it is not feasible to operate a newly assembled train from the New Mexico yard nearest to Arizona, with the result that the Arizona limitation governs the flow of traffic as far east as El Paso, Texas. For similar reasons the Arizona law often controls the length of passenger trains all the way from Los Angeles to El Paso. "If one State may regulate train lengths, so may all the others, and they need not prescribe the same maximum limitation. The practical effect of such regulation is to control train operations beyond the boundaries of the State exacting it because of the necessity of breaking up and reassembling long trains at the nearest terminal points before entering and after leaving the regulating State. The serious impediment to the free flow of commerce by the local regulation of train lengths and the practical necessity that such regulation, if any, must be prescribed by a single body having a nation-wide authority are apparent. "The trial court found that the Arizona law had no reasonable relation to safety, and made train operation more dangerous. Examination of the evidence and the detailed findings makes it clear that this conclusion was rested on facts found which indicate that such increased danger of accident and personal injury as may result from the greater length of trains is more than offset by the increase in the number of accidents resulting from the larger number of trains when train lengths are reduced. In considering the effect of the statute as a safety measure, therefore, the factor of controlling significance for present purposes is not whether there is basis for the conclusion of the Arizona Supreme Court that the increase in length of trains beyond the statutory maximum has an adverse effect upon safety of operation. The decisive question is whether in the circumstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it and subject it to local regulation which does not have a uniform effect on the interstate train journey which it interrupts."[823] THE LESSON OF SOUTHERN PACIFIC CO. _v._ ARIZONA The lesson to be extracted from Southern Pacific Co. _v._ Arizona is a threefold one: 1) Where uniformity is judged by the Court to be "essential for the functioning of commerce, a State may not interpose its regulation"; 2) in resolving this question the Court will canvass what it considers to be relevant facts extensively; 3) its task is, however, in the last analysis, one of weighing competing values, in brief, arbitral rather than strictly judicial. The lesson of Southern Pacific is further exemplified by the more recent holding in Morgan _v._ Virginia,[824] in which the Court was confronted with a State statute which, in providing for the segregation of white and colored passengers, required passengers to change seats from time to time as might become necessary to increase the number of seats available to the one race or the other. First, reciting the rule of uniformity, Justice Heed, for the Court, said: "Congress, within the limits of the Fifth Amendment, has authority to burden [interstate] commerce if that seems to it a desirable means of accomplishing a permitted end. * * * As no State law can reach beyond its own border nor bar transportation of passengers across its boundaries, diverse seating requirements for the races in interstate journeys result. As there is no federal act dealing with the separation of races in interstate transportation, we must decide the validity of this Virginia statute on the challenge that it interferes with commerce, as a matter of balance between the exercise of the local police power and the need for national uniformity in the regulations for interstate travel. It seems clear to us that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel. Consequently, we hold the Virginia statute in controversy invalid." STATE REGULATION OF MOTOR VEHICLES; VALID REGULATIONS Cases arising under this caption further illustrate the competition for judicial recognition between the interstate commerce interest and local interests, especially that of public safety. A new element enters the problem, however, which lends some added weight to the claims of the police power, the fact, namely, that motor vehicles use highways furnished and maintained by the State. A State is entitled to enact a comprehensive scheme for the licensing and regulation of motor vehicles using its highways with a view to insuring itself of reasonable compensation for the facilities afforded and to providing adequate protection of the public safety; and such scheme may embrace out-of-State vehicles using the State's highways.[825] Thus legislation limiting the net loads of trucks using the State's highways is valid;[826] as are also, in the absence of national legislation on the subject, State regulations limiting the weight and width of the vehicles themselves, provided such regulations are applied without discrimination as between vehicles moving in interstate commerce and those operating only intrastate.[827] Likewise, a State may deny a certificate of public convenience and necessity to one desiring to operate a common carrier over a particular highway to an out-of-State destination in an adjacent State, on the ground that the specified route is already congested. So it was held in Bradley _v._ Public Utilities Commission of Ohio,[828] in which the Court took cognizance of the full hearing accorded the appellant, and of his failure to choose another route, although he was at liberty to do so. And in Maurer _v._ Hamilton a Pennsylvania[829] statute prohibiting the operation over its highways of any motor vehicle carrying any other vehicle over the head of the operator was upheld in the absence of conflicting Congressional legislation. Similarly, in Welch _v._ New Hampshire[830] a statute of that State establishing maximum hours for drivers of motor vehicles was held not to be superseded by the Federal Motor Carrier Act prior to the effective date of regulations by the Interstate Commerce Commission dealing with the subject. Nor was pendency before the Interstate Commerce Commission of an application under the Motor Carrier Act for a license to operate a motor carrier in interstate commerce found to supersede as to the applicant the authority of a State to enforce "reasonable regulations" of traffic upon its highways. "In the absence of the exercise of federal authority," said the Court, "and in the light of local exigencies, the State is free to act in order to protect its legitimate interests even though interstate commerce is directly affected."[831] And for the same reason New York City was entitled to apply to trucks engaged in the delivery of goods from New Jersey a traffic regulation forbidding the operation on the streets of an advertising vehicle.[832] Said Justice Douglas for the Court: "Many of these trucks are engaged in delivering goods in interstate commerce from New Jersey to New York. Where traffic control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce."[833] Also, the Court has consistently sustained State regulations requiring motor carriers to provide adequate insurance protection for injuries caused by the negligent operation of their vehicles.[834] INVALID STATE ACTS AFFECTING MOTOR CARRIERS A State law which imposes upon all persons engaged in transporting for hire by motor vehicle over the public highways of the State the burdens and duties of common carriers and requires them to furnish bonds to secure the payment of claims and liabilities resulting from injury to property carried, may not be validly applied to a private carrier which is engaged exclusively in hauling from one State to another State the goods of particular factories under standing contracts with their owners, the said carrier enjoying neither a special franchise nor using the eminent domain power.[835] On the other hand, a State statute which prohibits common carriers for hire from using the highways of the State between fixed termini or over regular routes without having first obtained from a director of public works a certificate of public convenience, is primarily not a regulation to secure safety on the highways or to conserve them, but a ban on competition and, as applied to a common carrier by motor vehicle of passengers and express purely in interstate commerce, is both violation of the Commerce Clause and defeats the express purpose of Congressional legislation rendering federal aid for the construction of interstate highways.[836] TRANSPORTATION AGENCIES The special characteristics of motor travel have brought about a reversal of the Court's attitude toward State control of transportation agencies. Sustaining in 1941 a California statute requiring that agents engaged in negotiating for the transportation of passengers in motor vehicles over the highways of the State take out a license, Justice (later Chief Justice) Stone, speaking for the Court, said: "In Di Santo _v._ Pennsylvania,[837] this Court took a different view * * *, it held that a Pennsylvania statute requiring others than railroad or steamship companies, who engage in the intrastate sale of steamship tickets or of orders for transportation to and from foreign countries, to procure a license by giving proof of good moral character and filing a bond as security against fraud and misrepresentation to purchasers, was an infringement of the Commerce Clause. Since the decision in that case this Court has been repeatedly called upon to examine the constitutionality of numerous local regulations affecting interstate motor vehicle traffic. It has uniformly held that in the absence of pertinent Congressional legislation there is constitutional power in the States to regulate interstate commerce by motor vehicle wherever it affects the safety of the public or the safety and convenient use of its highways, provided only that the regulation does not in any other respect unnecessarily obstruct interstate commerce."[838] NAVIGATION; GENERAL DOCTRINE In Gibbons _v._ Ogden[839] the Court, speaking by Chief Justice Marshall, held that New York legislation which excluded from the navigable waters of that State steam vessels enrolled and licensed under an act of Congress to engage in the coasting trade was in conflict with the act of Congress and hence void. In Willson _v._ Blackbird Creek and Marsh Co.[840] the same Court held that in the absence of an act of Congress, "the object of which was to control State legislation over those small navigable creeks into which the tide flows," the State of Delaware was entitled to incorporate a company vested with the right to erect a dam across such a creek. From these two cases the Court in Cooley _v._ the Board of Wardens,[841] decided in 1851, extracted the rule that in the absence of conflicting legislation by Congress States were entitled to enact legislation adapted to the local needs of interstate and foreign commerce, that a pilotage law was of this description, and was, accordingly, constitutionally applicable until Congress acted to the contrary to vessels engaged in the coasting trade. In the main, these three holdings have controlled the decision of cases under the above and the following caption, there being generally no applicable act of Congress involved. But the power which the rule attributed to the States, they must use "reasonably," something they have not always done in the judgment of the Court. Thus an Alabama statute which required that owners of vessels using the public waters of the enacting State be enrolled, pay fees, file statements as to ownership, etc., was held to be inapplicable to vessels licensed under the act of Congress to engage in the coasting trade;[842] as was also a Louisiana statute ordering masters and wardens of the port of Orleans to survey the hatches of all vessels arriving there and to enact a fee for so doing.[843] "The unreason and the oppressive character of the act" was held to take it out of the class of local legislation protected by the rule of the Cooley case.[844] Likewise, while control by a State of navigable waters wholly within its borders has been often asserted to be complete in the absence of regulation by Congress,[845] Congress may assume control at any time;[846] and when such waters connect with other similar waters "so as to form a waterway to other States or foreign nations, [they] cannot be obstructed or impeded so as to impair, defeat, or place any burden upon a right to their navigation granted by Congress."[847] On the other hand, in Kelly _v._ Washington,[848] decided in 1937, the Court sustained the State in applying to motor-driven tugs operating in navigable waters of the United States legislation which provided for the inspection and regulation of every vessel operated by machinery if the same was not subject to inspection under the laws of the United States. It was conceded that there was "elaborate" federal legislation in the field, but it was asserted that the Washington statute filled a gap. "The principle is thoroughly established," said Chief Justice Hughes for the Court, "that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together.'"[849] And in Bob-Lo Excursion Co. _v._ Michigan,[850] the Court, elbowing aside a decision of many years standing,[851] ruled that the commerce clause does not preclude a State, in the absence of federal statute or treaty, from forbidding racial discrimination by one carrying passengers by vessel to and from a port in the United States to an island situated in Canadian territory. BRIDGES, DAMS, FERRIES, WHARVES The holding in Willson _v._ Blackbird Creek Marsh Co.[852] has been invoked by the Court many times in support of State legislation permitting the construction across navigable streams of dams, booms, and other shore protections,[853] as well as in support of State legislation authorizing the erection of bridges and the operation of ferries across such streams.[854] Bridges, it is true, may obstruct some commerce, but they may more than compensate for this by aiding other commerce.[855] In Justice Field's words in Huse _v._ Glover,[856] it should not be forgotten that: "the State is interested in the domestic as well as in the interstate and foreign commerce conducted on the Illinois River, and to increase its facilities, and thus augment its growth, it has full power. It is only when, in the judgment of Congress, its action is deemed to encroach upon the navigation of the river as a means of interstate and foreign Commerce, that that body may interfere and control or supersede it. * * * How the highways of a State, whether on land or by water, shall be best improved for the public good is a matter for State determination, subject always to the right of Congress to interpose in the cases mentioned."[857] The same principle applies to the construction of piers and wharves in a navigable stream,[858] as well as to harbor improvements by a State for the aid and protection of navigation;[859] and reasonable tolls may be charged for the use of such aids, and reasonable regulations laid down governing their employment.[860] Ferries A State may license individuals to operate a ferry across an interstate river bounding its territory, or may incorporate a company for the purpose.[861] Nor may a neighbor State make the securing of its consent and license a condition precedent to the operation of such a ferry to one of its towns.[862] Earlier the right of a State to regulate the rates to be charged by an interstate bridge company for passage across its structure was denied by a closely divided Court.[863] The ruling does not, however, control the regulation of rates to be charged by an interstate ferry company. These the chartering State may, in the absence of action by Congress, regulate except in the case of ferries operated in connection with railroads,[864] as to which Congress has acted with the result of excluding all State action.[865] A State may also regulate the rates of a vessel plying between two points within the State although the journey is over the high seas; although again action by Congress may supersede State action at any time.[866] TELEGRAPHS AND TELEPHONES An Indiana statute which required telegraph companies to deliver dispatches by messenger to the persons to whom they were addressed if the latter resided within one mile of the telegraph station or within the city or town where it was located, and which prescribed the order of preference to be given various kinds of messages, was held to be an unconstitutional interference with interstate commerce;[867] as was also the order of the Massachusetts Public Service Commission interfering with the transmission to firms within the State's borders of continuous quotations of the New York Stock Exchange by means of ticker service.[868] But a Virginia statute which imposed a penalty on a telegraph company for failure in its "clear common-law duty" of transmitting messages without unreasonable delay, was held, in the absence of legislation by Congress, to be valid;[869] as was also a Michigan statute which prohibited the stipulation by a company against liability for nonperformance of such duty.[870] However, a South Carolina statute which sought to make mental anguish caused by the negligent nondelivery of a telegram a cause of action, was held to be, as applied to messages transmitted from one State to another or to the District of Columbia, an unconstitutional attempt to regulate interstate commerce.[871] A State has no authority to interfere with the operation of the lines of telegraph companies constructed along postal routes within its borders under the authority of the Post Road Act of 1866,[872] nor to exclude altogether a company proposing to take advantage of the act;[873] but that act does not deprive the State or a municipality of the right to subject telegraph companies to reasonable regulations, and an ordinance regulating the erection and use of poles and wires in the streets does not interfere with the exercise of authority under that act.[874] The jurisdiction conferred by The Transportation Act of 1920 upon the Interstate Commerce Commission, and since transferred to the Federal Communications Commission, over accounts and depreciation rates of telephone companies does not, in the absence of exercise by the federal agency of its power, operate to curtail the analogous State authority;[875] nor is an unconstitutional burden laid upon interstate commerce by the action of a State agency in requiring a telephone company to revise its intrastate toll rates so as to conform to rates charged for comparable distances in interstate service.[876] GAS AND ELECTRICITY The business of piping natural gas from one State to another to local distributors which sell it locally to consumers is a branch of interstate commerce which a State may not regulate.[877] Likewise, an order by a State commission fixing rates on electric current generated within the States and sold to a distributor in another State, imposes an unconstitutional burden on interstate commerce, although the regulation of such rates would necessarily benefit local consumers of electricity furnished by the same company.[878] In the absence, on the other hand, of contrary regulation by Congress a State may regulate the sale to consumers in its cities of natural gas produced in and transmitted from another State;[879] nor did Congress, by the National Gas Act of 1938, impose any such contrary regulation.[880] Likewise, a State is left free by the same act to require a gas company engaged in interstate commerce to obtain a certificate of convenience before selling directly to customers in the State.[881] And where a pipe line is used to distribute both gas that is brought in from without the State and gas that is produced and used within the State, and the two are commingled, but their proportionate quantities are known, an order by the State commission directing the gas company to continue supplying gas from the line to a certain community does not burden interstate commerce.[882] The transportation of natural gas from sources outside the State to local consumers in its municipalities ceases to be interstate commerce at the point where it passes from a pressure producing station into local distributing stations, and from that point is subject to State regulation.[883] A State public utilities commission is entitled to require a natural gas distributing company seeking an increase of rates to show the fairness and reasonableness of the rate paid by it to the pipe line company from which it obtains its supplies, both companies being subsidiaries of a third.[884] A State agency may require a company which sells natural gas to local consumers and distributing companies, transporting it in pipe lines from other States, to file contracts, agreements, etc., for sales and deliveries to the distributing companies;[885] nor does the fact that a natural gas pipe line from the place of production to the distributing points in the same State cuts across a corner of another State render it improper, in determining maximum rates for gas sold by the owner of the pipe line to distributing companies, to include the value of the total line in the rate base.[886] A State may, as a conservation measure, fix the minimum prices at the wellhead on natural gas produced in the State and sold interstate.[887] FOREIGN CORPORATIONS A State may require that a foreign corporation as a condition of its being admitted to do a local business or to having access to its courts obtain a license, and in connection therewith furnish information as to its home State or country, the location of its principal office, the names of its officers and directors, its authorized capitalization, and the like, and that it pay a reasonable license fee;[888] nor is a corporation licensed by the National Government to act as a customs broker thereby relieved from meeting such conditions.[889] So it was decided in 1944. The holding does not necessarily disturb one made thirty years earlier in which the Court ruled that a statute which closed the courts of the enacting State to any action on any contract in the State by a foreign corporation unless it had previously appointed a resident agent to accept process, could not be constitutionally applied to the right of a foreign corporation to sue on an interstate transaction.[890] A suit brought in a State court by a foreign corporation having its principal place of business in the State against another foreign corporation engaged in interstate commerce on a cause of action arising outside the State does not impose an undue burden on such commerce; and the forum being in other respects appropriate, its jurisdiction is not forfeited because the property attached is an instrumentality of interstate commerce.[891] There is nothing in the commerce clause which immunizes a foreign corporation doing business in a State from any fair inquiry, judicial or legislative, that is required by local laws.[892] MISCELLANEOUS Banks and Banking A State statute which forbids individuals or partnerships to engage in the banking business without a license is not, as to one whose business chiefly consists in receiving deposits for periodic shipment to other States and to foreign countries, invalid as a regulation of interstate and foreign commerce.[893] Brokers A statute which requires dealers in securities evidencing title or interest in property to obtain a license from a State officer, is not invalid as applied to dispositions within the State securities transported from other States.[894] Commission Men A statute requiring commission merchants to give bonds for the protection of consignees may be validly applied to commission merchants handling produce shipped to them from without the State.[895] Attachment and Garnishment Railway cars are not exempt from attachment under State laws, although they may have been or are intended to be used in interstate commerce.[896] Statutory Liens A State statute which gives a lien upon all vessels whether domestic or foreign, and whether engaged in interstate commerce or not, for injuries to persons and property within the State, does not as applied to nonmaritime torts offend the commerce clause, there being no act of Congress in conflict.[897] Nor can the enforcement of a lien for materials used in the construction of a vessel be avoided because the vessel is engaged in interstate commerce.[898] The Police Power and the Subject-Matter of Commerce SCOPE OF THE POLICE POWER "Quarantine regulations are essential measures of protection which the States are free to adopt when they do not come into conflict with Federal action. In view of the need of conforming such measures to local conditions, Congress from the beginning has been content to leave the matter for the most part, notwithstanding its vast importance, to the States and has repeatedly acquiesced in the enforcement of State laws. * * * Such laws undoubtedly operate upon interstate and foreign commerce. They could not be effective otherwise. They cannot, of course, be made the cover for discriminations and arbitrary enactments having no reasonable relation to health * * *; but the power of the State to take steps to prevent the introduction or spread of disease, although interstate and foreign commerce are involved (subject to the paramount authority of Congress if it decides to assume control), is beyond question.[899] * * * State inspection laws and statutes designed to safeguard the inhabitants of a State from fraud and imposition are valid when reasonable in their requirements and not in conflict with Federal rules, although they may affect interstate commerce in their relation to articles prepared for export or by including incidentally those brought into the State and held for sale in the original imported packages."[900] QUARANTINE LAWS In two earlier cases a Missouri statute which prohibited the driving of all Texan, Mexican, and Indian cattle into the state during certain seasons of the year was held void;[901] while a statute making anybody in the State who had Texas cattle which had not wintered north of a certain line liable for damage through the communication of disease from these to other cattle was sustained;[902] as were also the regulations of a sanitary commission which excluded all cattle, horses, and mules, from the State at a certain period when anthrax was prevalent.[903] Reviewing previous cases in the one last cited, the Court declared their controlling principle to be simply whether the police power of the State had been exerted to exclude "_beyond what is necessary for any proper quarantine_," a question predominantly of fact, and one therefore to be determined for each case with only general guidance from earlier decisions.[904] More recent cases conform to the same pattern. Among measures sustained are the following: an Ohio statute forbidding the sale in that State of condensed milk unless made from unadulterated milk;[905] a New York statute penalizing the sale with intent to defraud of preparations falsely represented to be Kosher;[906] a New York statute requiring that cattle shall not be imported for dairy or breeding purposes unless accompanied by the certificate of a proper sanitary official in the State of origin, in order to prevent the spread of an infectious disease;[907] an order of a State Department of Agriculture, pursuant to a State law, regulating the standards of containers in which agricultural products (berries) may be marketed within the State;[908] a State statute restricting the processing of fish found within the waters of the State with the purpose of conserving it for food, even though it also operates upon fish brought into the State from without;[909] the price fixing and licensing provisions of a State Milk and Cream Act, not applicable to transactions in interstate commerce, by declaration of the act;[910] a Maine statute requiring the registration with the State Health Department of cosmetic preparations for the purpose of ascertaining whether the products are harmless;[911] an Indiana Animals Disposal Act requiring that animal carcasses, not promptly disposed of by the owner, be delivered to the representative of a disposal plant licensed by the State, and prohibiting their transportation on the public highways for any other purpose;[912] a Pennsylvania statute providing for the licensing and bonding of all milk dealers and fixing a minimum price to be paid producers, as applied to a dealer purchasing milk within the State for shipment to points outside it.[913] STATE INSPECTION LAWS The application of State inspection laws to imports from outside the State has been sustained as warranted by local interests and as not discriminating against out-of-state products, in the following instances: A North Carolina statute providing that "every bag, barrel, or other package" of commercial fertilizer offered for sale in the State should bear a label truly describing its chemical composition, which must comply with certain requirements, and charging 25 cents per ton to meet the cost of inspection;[914] an Indiana statute forbidding the sale in the original package of concentrated feeding stuffs prior to inspection and analysis for the purpose of ascertaining whether certain minimum standards as to composition had been met;[915] a Minnesota statute requiring as a precondition of its being offered for sale in the State, the inspection of illuminating oil and gasoline;[916] a Kansas statute forbidding any moving picture film or reel to be exhibited in the State unless it had been examined by the State Superintendent of Instruction and certified by him as moral and instructive and not tending to debase or corrupt the morals.[917] A Minnesota statute, on the other hand, which forbade the sale in any city of the State of any beef, mutton, lamb, or pork which, had not been inspected on the hoof by local inspectors within twenty-four hours of slaughter, was held void.[918] Its "necessary operation," said the Court, was to ban from the State wholesome and properly inspected meat from other States.[919] Also a Virginia statute which required the inspection and labelling of all flour brought into the State for sale was disallowed because flour produced in the State was not subject to inspection;[920] likewise a Florida statute providing for the inspection of all cement imported into the State and enacting a fee therefor, but making no provision for the inspection of the local product, met a like fate;[921] as did also a Madison, Wisconsin ordinance which sought to exclude a foreign corporation from selling milk in that city solely because its pasteurization plants were more than five miles away.[922] STATE PROHIBITION LAWS; THE ORIGINAL PACKAGE DOCTRINE The original package doctrine made its debut in Brown _v._ Maryland,[923] where it was applied to remove imports from abroad which were still in the hands of the importer in the original package, out of the reach of the State's taxing power. This rule the Court, overriding a dictum in Marshall's opinion in Brown _v._ Maryland,[924] rejected outright after the Civil War as to imports from sister States.[925] However, when in the late eighties and early nineties State-wide Prohibition laws began making their appearance, the Court seized on the rejected dictum and began applying it as a brake on the operation of such laws with respect to interstate commerce in intoxicants, which the Court denominated "legitimate articles of commerce." While holding that a State was entitled to prohibit the manufacture and sale within its limits of intoxicants,[926] even for an outside market--manufacture being no part of commerce[927]--it contemporaneously laid down the rule, in Bowman _v._ Chicago and Northwestern Railroad Co.,[928] that so long as Congress remained silent in the matter, a State lacked the power, even as part and parcel of a program of Statewide prohibition of the traffic in intoxicants, to prevent the shipment into it of intoxicants from a sister State; and this holding was soon followed by another to the effect that, so long as Congress remained silent, a State had no power to prevent the sale in the original package of liquors introduced from another State.[929] The effect of the latter decision was soon overcome by an act of Congress, the so-called Wilson Act, repealing its alleged silence,[930] but the Bowman decision still stood, the act in question being interpreted by the Court not to subject liquors from sister States to local authority until their arrival in the hands of the person to whom consigned.[931] Not till 1913 was the effect of the decision in the Bowman case fully nullified by the Webb-Kenyon Act,[932] which placed intoxicants entering a State from another State under the control of the former for all purposes whatsoever. OLEOMARGARINE AND CIGARETTES Long before this the immunity temporarily conferred by the original package doctrine upon liquors had been extended to cigarettes[933] and, with an instructive exception, to oleomargarine. The exception referred to was made in Plumley _v._ Massachusetts,[934] where the Court held that a statute of that State forbidding the sale of oleomargarine colored to look like butter could validly be applied to oleomargarine brought from another State and still in the original package. The justification of the statute to the Court's mind was that it sought "to suppress false pretenses and promote fair dealing in the sale of an article of food." Nor did Leisy and Co. _v._ Hardin[935] apply, said Justice Harlan for the Court, because the beer in that case was "genuine beer, and not a liquid or drink colored artificially so as to cause it to look like beer." That decision was never intended, he continued, to hold that "a State is powerless to prevent the sale of articles manufactured in or brought from another State, and subjects of traffic and commerce, if their sale may cheat the people into purchasing something they do not intend to buy * * *."[936] Obviously, the argument was conclusive only on the assumption that a State has a better right to prevent frauds than it has to prevent drunkenness and like evils; and doubtless that is the way the Court felt about the matter at that date. On the one hand, the liquor traffic was a very ancient, if not an altogether, venerable institution, while oleomargarine was then a relatively novel article of commerce whose wholesomeness was suspect. On the other hand, laws designed to secure fair dealing and condemnatory of fraud followed closely the track of the common law, while anti-liquor laws most decidedly did not. The real differentiation of the two cases had to be sought in historical grounds. Yet the State must not put unreasonable burdens upon interstate commerce even in oleomargarine. Thus a Pennsylvania statute forbidding the sale of this product even in the unadulterated condition was pronounced invalid so far as it operated to prevent the introduction of such oleomargarine from another State and its sale in the original package;[937] as was also a New Hampshire statute which required that all oleomargarine marketed in the State be colored pink.[938] A little later in the case above mentioned involving cigarettes, the Court discovered some of the difficulties of the original package doctrine when applied to interstate commerce, in which the package is not so apt to be standardized as it is in foreign commerce.[939] DEMISE OF THE ORIGINAL PACKAGE DOCTRINE What importance has the original package doctrine today as a restraint on State legislation affecting interstate commerce? The answer is, very little, if any. State laws prohibiting the importation of intoxicating liquor, have since the passage of the Twenty-first Amendment consistently been upheld, even when imposing a burden on interstate commerce or discriminating against liquor imported from another State.[940] Indeed the Court has, without appealing to the Twenty-first Amendment, even gone so far as to uphold a statute requiring a permit for transportation of liquor through the enacting State.[941] In Whitfield _v._ Ohio,[942] moreover, the Court upheld a State law prohibiting the sale in open market of convict-made goods including sales of goods imported from other States and still in the original package. While the decision is based on the Hawes-Cooper Act of 1929,[943] which follows the pattern of the Webb-Kenyon Act, Justice Sutherland speaking for the Court, takes pains to disparage the "unbroken-package doctrine, as applied to interstate commerce, * * *, as more artificial than sound."[944] Indeed, earlier cases make it clear that the enforcement of State quarantine and inspection acts, otherwise constitutional, is not to be impeded by the doctrine in any way.[945] CURBS ON THE INTERSTATE MOVEMENT OF PERSONS Prior to the Civil War the slaveholding States, ever fearful of a slave uprising, adopted legislation meant to exclude from their borders free Negroes whether hailing from abroad or from sister States, and in 1823 a South Carolina Negro Seamen's Act embodying this objective was held void by Justice William Johnson, himself a South Carolinian, in a case arising in the Carolina circuit and involving a colored British sailor.[946] The basis of the ruling, which created tremendous uproar in Charleston,[947] was the commerce clause and certain treaties of the United States. There followed two rulings of Attorneys General, the earlier by Attorney General Wirt, denouncing such legislation as unconstitutional;[948] the latter by Attorney General Berrien, sustaining it;[949] and in City of New York _v._ Miln[950] the Court, speaking by Justice Barbour of Virginia, asserted, six years after Nat Turner's rebellion, the power of the States to exclude undesirables in sweeping terms, which in the Passenger Cases,[951] decided in 1840, a narrowly divided Court considerably qualified. Shortly after the Civil War the Court overturned a Nevada statute which sought to halt the further loss of population by a special tax on railroads on every passenger carried out of the State.[952] This time only two Justices invoked the commerce clause; the majority, speaking by Justice Miller held the measure to be an unconstitutional interference with a right of national citizenship--a holding today translatable, in the terminology of the Fourteenth Amendment, as an abridgment of a privilege or immunity of citizens of the United States. Against this background the Court in 1941, in Edwards _v._ California,[953] held void a statute which penalized the bringing into that State, or the assisting to bring into it, any nonresident knowing him to be "an indigent person." Five Justices, speaking by Justice Byrnes, held the act to be even as to "persons who are presently destitute of property and without resources to obtain the necessities of life, and who have no relatives or friends able and willing to support them,"[954] an unconstitutional interference with interstate commerce. "The State asserts," Justice Byrnes recites, "that the huge influx of migrants into California in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering. It is not for us to say that this is not true. We have repeatedly and recently affirmed, and we now reaffirm, that we do not conceive it our function to pass upon 'the wisdom, need, or appropriateness' of the legislative efforts of the States to solve such difficulties. * * * But this does not mean that there are no boundaries to the permissible area of State legislative activity. There are. And none is more certain than the prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. It is frequently the case that a State might gain a momentary respite from the pressure of events by the simple expedient of shutting its gates to the outside world. But, in the words of Mr. Justice Cardozo: 'The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that in the long run prosperity and salvation are in union and not division'."[955] Four of the Justices would have preferred to rest the holding of unconstitutionality on the rights of national citizenship under the privileges and immunities clause of Amendment XIV.[956] STATE CONSERVATION AND EMBARGO MEASURES In Geer _v._ Connecticut[957] the Court sustained the right of the State to forbid the shipment beyond its borders of game taken within the State--this on the ground, in part, that a State has an underlying property right to wild things found within its limits, and so is entitled to qualify the right of individual takers thereof to any extent it chooses; and a similar ruling was laid down in a later case as to the prohibition by a State of the transportation out of it of water from its important streams.[958] In Oklahoma _v._ Kansas Natural Gas Co.,[959] however, this doctrine was held inapplicable to the case of natural gas, on the ground: first, that "gas, when reduced to possession, is a commodity, the individual property" of the owner; and secondly, that "the business welfare of the State," is subordinated by the commerce clause to that of the nation as a whole. If the States had the power asserted in the Oklahoma statute, said Justice McKenna, "a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? * * * And yet we have said that 'in matters of foreign and interstate commerce there are no State lines.' In such commerce, instead of the States, a new power appears and a new welfare, a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all the States and that of each State is made greater by a division of its resources, * * *, with every other State, and those of every other State with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States."[960] In Pennsylvania _v._ West Virginia[961] the same doctrine was enforced in disallowance of a West Virginia statute whereby that State sought to require that a preference be accorded local consumers of gas produced within the State. West Virginia's argument that the supply of gas within the State was waning and no longer sufficed for both the local and the interstate markets, and that therefore the statute was a legitimate measure of conservation in the interest of the people of the State, was answered in the words just quoted. In the above cases the State prohibition overturned was directed specifically to shipments beyond the State. In two other cases the State enactments involved reached all commerce, both domestic and interstate without discrimination. In the first of these, Sligh _v._ Kirkwood,[962] the Court upheld the application to oranges which were intended for the interstate market of a Florida statute prohibiting the sale, shipment, or delivery for shipment of any citrus fruits which were immature or otherwise unfit for consumption. The burden thus imposed upon interstate commerce was held by the Court to be incidental merely to the effective enforcement of a measure intended to safeguard the health of the people of Florida. Moreover, said the Court, "we may take judicial notice of the fact that the raising of citrus fruits is one of the great industries of the State of Florida. It was competent for the legislature to find that it was essential for the success of that industry that its reputation be preserved in other States wherein such fruits find their most extensive market."[963] In Lemke _v._ Farmers Grain Co.,[964] on the other hand, a North Dakota statute which confined the purchase of grain within that State to those holding licenses from the State and which regulated prices, was pronounced void under the commerce clause. To the argument that such legislation was "in the interest of the grain growers and essential to protect them from fraudulent purchases, and to secure payment to them of fair prices for the grain actually sold," the Court answered that, "Congress is amply authorized to pass measures to protect interstate commerce if legislation of that character is needed." The differentiation of the above two cases is twofold. The statute under review in the earlier one was of the ordinary type of inspection law and was applied without discrimination to fruits designed for the home and the interstate market. The North Dakota act was far more drastic, approximating an attempt on the part of the State to license interstate commerce. What is even more important, however, the later case represents a new rule of law, and one which at the time the Florida act was before the Court had not yet been heard of. This is embodied in the head note of the case in the following words: "The business of buying grain in North Dakota, practically all of which is intended for shipment to, and sale at, terminal markets in other States, conformably to the usual and general course of business in the grain trade, is interstate commerce."[965] The application of this rule in the field of state taxation was mentioned on a previous page.[966] STATE CONSERVATION AND EMBARGO MEASURES: THE MILK CASES Certain recent cases have had to deal with State regulation of the milk business. In Nebbia _v._ New York,[967] decided in 1934, that State's law regulating the price of milk was sustained by the Court against objections based on the due process clause of Amendment XIV. A year later, in Baldwin _v._ Seelig[968] the refusal of a license under the same act to a dealer who had procured his milk at a lower minimum price than producers were guaranteed in New York, was set aside as an unconstitutional interference with interstate commerce. However, a Pennsylvania statute requiring dealers to obtain licenses was sustained as to one who procured milk from neighboring farms and shipped it all into a neighboring State for sale.[969] The purpose of the act, explained Justice Roberts, was to control "a domestic situation in the interest of the welfare of the producers and consumers," and its application to the kind of case before the Court was essential to its effective enforcement and affected interstate commerce only incidentally.[970] But when a distributor of milk in Massachusetts, who already had two milk stations in Eastern New York, was refused a license for a third on the ground, among others, that the further diversion of milk to Massachusetts would deprive the local market of a supply needed during the short season, a narrowly divided Court interposed its veto on the basis of Oklahoma _v._ Kansas Natural Gas Co.[971] STATE CONSERVATION AND EMBARGO MEASURES: THE SHRIMP CASES Meantime, Geer _v._ Connecticut has been somewhat overcast by subsequent rulings. In a case, decided in 1928, it was held that a Louisiana statute which permitted the shipment of shrimp taken in the tidal waters of Louisiana marshes only if the heads and hulls have been previously removed was unconstitutional.[972] Distinguishing Geer _v._ Connecticut the Court said: "As the representative of its people, the State might have retained the shrimp for [local] consumption and use therein." But the object of the Louisiana statute was in direct opposition to the conservation of a local food supply. Its object was to favor the canning of shrimp for the interstate market. "* * * by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control. * * * And those taking the shrimp under the authority of the act necessarily thereby become entitled to the rights of private ownership and the protection of the commerce clause."[973] On the same reasoning a South Carolina statute which required that owners of shrimp boats, fishing in the marine waters off the coast of the State, dock at a State port and unload, pack and stamp their catch with a tax stamp before shipping or transporting it to another State, was pronounced void in 1948.[974] However, a California statute which restricted the processing of fish, both that taken in the waters of the State and that brought into the State in a fresh condition, was found by the Court to be purely a food conservation measure, and hence valid.[975] The application of the act to fish brought from outside was held to be justified "by rendering evasion of it less easy."[976] Concurrent Federal and State Legislation THE GENERAL ISSUE Since the turn of the century federal legislation under the commerce clause has penetrated more and more deeply into areas once occupied exclusively by the police power of the States. The result has been that State laws have come under increasingly frequent attack as being incompatible with acts of Congress operating in the same general field. The Court's decisions resolving such alleged conflicts fall into three groups: _first_, those which follow Webster's theory, advanced in Gibbons _v._ Ogden, that when Congress acts upon a particular phase of interstate commerce, it designs to appropriate the entire field with the result that no room is left for supplementary State action; _second_, those in which, in the absence of conflict between specific provisions of the State and Congressional measures involved, the opposite result is reached; _third_, those in which the State legislation involved is found to conflict with certain acts of Congress, and in which the principle of national supremacy is invoked by the Court. Most of the earlier cases stemming from State legislation affecting interstate railway transportation fall in the first class; while illustrations of the second category usually comprise legislation intended to promote the public health and fair dealing. More recent cases are more difficult to classify, especially as between the first and third categories. THE HEPBURN ACT No act ever passed by Congress was more destructive of legislation on the State statute books than the Hepburn Act of 1906,[977] amending the Interstate Commerce Act. Thus a State statute which, while prohibiting a railway from giving free passes or free transportation, authorized the issuance of transportation in payment for printing and advertising, was found to conflict with the unqualified prohibition by Congress of free interstate transportation.[978] Likewise, a State statute which penalized a carrier for refusing to receive freight for transportation whenever tendered at a regular station was found to conflict with the Congressional provision that no carrier "shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act."[979] In enacting this provision, the Court found, Congress had intended to occupy the entire field. In a third case, it was held that the Hepburn Act had put it outside the power of a State to regulate the delivery of cars for interstate shipments;[980] and on the same ground, a State statute authorizing recovery of a penalty for delay in giving notice of the arrival of freight was disallowed;[981] as was also the similar rule of a State railroad commission with respect to failure to deliver freight at depots and warehouses within a stated time limit.[982] And in Adams Express Co. _v._ Croninger[983] it was sweepingly ruled that the so-called Carmack Amendment to the Hepburn Act, which puts the responsibility for loss of, or injury to, cargo upon the initial carrier, had superseded all State statutes limiting recovery for loss or injury to goods in transportation to an agreed or declared value. Substantially contemporaneous with these holdings were others in which the Court ruled that the federal Employers' Liability Act of 1908, as amended in 1910;[984] the federal Hours of Service Act (Railroads) of 1907;[985] and the federal Safety Appliance Acts of 1893, as amended in 1903[986] superseded all State legislation dealing with the same subjects so far as such legislation affected interstate commerce.[987] However, the States were still able to regulate the time and manner of payment of the employees of railroads, including those engaged in interstate commerce,[988] Congress having not legislated on the subject. QUARANTINE CASES In 1904 it was held that a New York statute prohibiting the manufacture or sale of any adulterated food or drug, or the coloring or coating of food whereby it is made to appear better than it really is, was not, as applied to imported coffee, repugnant to either the commerce clause or the Meat Inspection Act of 1890,[989] prohibiting the importation into the United States of adulterated and unwholesome food, but as exertion by the State of power to legislate for the protection of the health and safety of the community and to provide against deception and fraud.[990] And in 1912 it was held that an Indiana statute regulating the sale of concentrated commercial feeding stuff and requiring the disclosure of ingredients by certificate and label, and providing for inspection and analysis, was not in conflict with the Pure Food and Drugs Act of 1906.[991] However, when Wisconsin about the same time passed an act requiring that when certain commodities were offered for sale in that State they should bear the label required by State law and no other, she was informed that she could not validly apply it to articles which had been labeled in accordance with the federal statute nor did it make any difference that the goods in question had been removed from the container in which they had been shipped into the State, inasmuch as they could still be proceeded against under the act of Congress.[992] The original package doctrine, it was added, "was not intended to limit the right of Congress, * * *, to keep the channels of interstate commerce free from the carriage of injurious or fraudulently branded articles and to choose appropriate means to that end."[993] But a North Dakota statute requiring that lard compound or substitutes, unless sold in bulk, should be put up in pails or containers holding one, three, or five pounds net weight, or some multiple of these numbers, was held not to be repugnant to the Pure Food and Drugs Act.[994] On the other hand, a decade later the Court found that the Plant Quarantine Act of 1912, as amended in 1917,[995] had so completely occupied the field indicated by its title that a State was left without power to prevent the importation of plants infected by a particular disease to which the Secretary of Agriculture's regulations did not apply.[996] Congress promptly intervened by further amending the federal statute to permit the States to impose quarantines in such overlooked cases.[997] RECENT CASES SUSTAINING STATE LEGISLATION In 1935, it was held[998] that an order of the New York Commissioner of Agriculture prohibiting the importation of cattle for dairy or breeding purposes unless such cattle and the herds from which they come had been certified by the chief sanitary officer of the State of origin as being free from Bang's disease, was not in conflict with the Cattle Contagious Diseases Acts.[999] In 1937, it was ruled[1000] that a Georgia statute fixing maximum charges for handling and selling leaf tobacco did not, as applied to sales of tobacco destined for export, conflict with the Tobacco Inspection Act.[1001] In 1942,[1002] it was held that an order of the Wisconsin Employment Relations Board which commanded a union, its agents, and members, to desist from mass picketing of a factory, threatening personal injury or property damage to employees desiring to work, obstructing the streets about the factory, and picketing the homes of employees, was not in conflict with the National Labor Relations Act,[1003] to which the employer was admittedly subject but which had not been invoked. An "intention of Congress," said the Court, "to exclude States from exerting their police power must be clearly manifested."[1004] In 1943,[1005] the Court sustained the marketing program for the 1940 California raisin crop, adopted pursuant to the California Agricultural Prorate Act. Although it was conceded that the program and act operated to eliminate competition among producers concerning terms of sale and price as to product destined for the interstate market, they were held not to conflict with the commerce clause or with the Sherman Act or the Agricultural Marketing Agreement Act.[1006] To the contrary, said Chief Justice Stone, speaking for the unanimous court, the program "is one which it has been the policy of Congress to aid and encourage through federal agencies" under federal act.[1007] The case was not one, he further observed, which was to be resolved by "mechanical test," but with the object in view of accommodating "the competing demands of the State and national interests involved."[1008] In 1944,[1009] the Court upheld the right of Minnesota to exclude from its courts a firm licensed by the National Government to carry on the business of customs broker because of its failure to comply with a State statute requiring foreign corporations to obtain a license to do business in the State. Speaking for the Court, Justice Frankfurter, again disparaged "the generalities" to which certain cases had given utterance. Actually, he asserted, "the fate of State legislation in these cases has not been determined by these generalities but by the weight of the circumstances and the practical and experienced judgment in applying these generalities to the particular instances."[1010] In cases, decided in 1947,[1011] the Court ruled that Indiana had not violated the Natural Gas Act[1012] by attempting to regulate the rates for natural gas sold within the State by an interstate pipe line company to local industrial consumers; and that Illinois was not precluded by the Commodity Exchange Act[1013] from imposing upon grain exchanges doing business within her borders regulations not at variance with the provisions of the act or with regulations promulgated under it by the Secretary of Agriculture. Nor, it was held by a bare majority of the Court in 1949, did the Motor Carrier Act of 1935, as amended in 1942,[1014] prevent California from prohibiting the sale or arrangement of any transportation over its public highways if the transporting carrier has no permit from the Interstate Commerce Commission.[1015] The opposed opinions line up most of the cases on either side of the question. RECENT CASES NULLIFYING STATE ACTION On the other side of the ledger appear the following cases, decided contemporaneously with those just reviewed: one in 1942 in which it was held that a gas company engaged in the business of piping natural gas from without the State of Illinois and selling it wholesale to distributors in that State was subject to the jurisdiction of the Federal Power Commission under the Natural Gas Act,[1016] and hence could not be required by the Illinois Commerce Commission to extend its facilities in the absence of a certificate of convenience from the Federal Power Commission;[1017] one, in the same year, in which it was held, by a sharply divided Court, that federal regulation of the production of renovated butter under the Internal Revenue Code[1018] prevented the State of Alabama from inspecting, seizing and detaining stock butter from which such butter was made, some of it being intended for interstate commerce;[1019] one in 1947 holding that the United States Warehouse Act, as amended,[1020] must be construed as superseding State authority to regulate licenses thereunder, and hence overruled the stricter requirements of Illinois law dealing with such subject as rate discrimination, the dual position of grain warehousemen storing their own grain, the mixing of inferior grain owned by the warehousemen with superior grain of other users of the facility, delay in loading grain, the sacrificing or rebating of storage charges, retraining desirable transit tonnage, utilizing preferred storage space, maintenance of unsafe and inadequate grain elevators, inadequate and ineffectual warehouse service, the obtaining of a license, the abandonment of warehousing service, and the rendition of warehousing service without filing and publishing rate schedules;[1021] one decided the same year in which it was held that the authority of the Federal Power Commission under the Natural Gas Act[1022] extended to and superseded State regulatory power over sales made within a State by a natural gas producing company to pipe line companies which transported the purchased gas to markets in other States;[1023] one in 1948, in which a sharply divided Court held that Michigan law governing the rights of dissenting stockholders could not be applied to embarrass a merger agreement between two railroad companies which had been approved by the Interstate Commerce Commission under the Interstate Commerce Act[1024] as "just and reasonable";[1025] and finally one decided the same year in which it was held by a unanimous Court that the Interstate Commerce Commission may, in approving the acquisition by a railroad corporation of one State of railroad lines in another, relieve such corporation from being incorporated under the laws of the latter State.[1026] FEDERAL VERSUS STATE LABOR LAWS One group of cases, which has caused the Court some difficulty and its attitude in which has perhaps shifted in some measure, deals with the question of the effect of the Wagner, and, latterly, of the Taft-Hartley Act on State power to govern labor union activities. In a case decided in 1945[1027] it was held that a Florida statute which required business agents of a union operating in the State to file annual reports and pay an annual fee of one dollar conflicted with the Wagner Act,[1028] standing, as the Court put it, "'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"[1029] In two cases decided in 1949, however, State legislation regulative of labor relations was sustained. In one a "cease and desist" order of the Wisconsin Employment Relations Board[1030] implementing the State Employment Peace Act, which made it an unfair labor practice for an employee to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike, was found not to conflict with either the Wagner or the Taft-Hartley Act,[1031] both of which, the Court asserted, designedly left open an area for State control. In the other,[1032] the Wisconsin board, acting under the same statute, was held to be within its powers in labelling as "an unfair labor practice" the discharge by an employer of an employee under a maintenance of membership clause which had been inserted in the contract of employment in 1943 under pressure from the National War Labor Board, but which was contrary to provisions of the Wisconsin Act. On the other hand, in 1950, the Court invalidated a Michigan mediation statute, and in 1951, a Wisconsin Public Utility Anti-Strike Act, on the ground that these matters were governed by the policies embodied in the Wagner and Taft-Hartley Acts.[1033] Commerce With Indian Tribes UNITED STATES _v._ KAGAMA Congress is given power to regulate commerce "with the Indian tribes." Faced in 1886 with a Congressional enactment which prescribed a system of criminal laws for Indians living on their reservations, the Court rejected the government's argument which sought to base the act on the commerce clause. It sustained the act, however, on the following grounds: "From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this Court, whenever the question has arisen. * * * The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes." Moreover, such power was operative within the States.[1034] Obviously, this line of reasoning renders the commerce clause superfluous as a source of power over the Indian tribes; and some years earlier, in 1871, Congress had forbidden the further making of treaties with them.[1035] However, by a characteristic judicial device the effort has been made at times to absorb the doctrine of the Kagama case into the commerce clause,[1036] although more commonly the Court, in sustaining Congressional legislation, prefers to treat the commerce clause and "the recognized relations of tribal Indians," as joint sources of Congress's power.[1037] Most of the cases have arisen, in fact, in connection with efforts by Congress to ban the traffic in "fire water" with tribal Indians. In this connection it has been held that even though an Indian has become a citizen, yet so long as he remains a member of his tribe, under the charge of an Indian agent, and so long as the United States holds in trust the title to land which has been allotted him, Congress can forbid the sale of intoxicants to him.[1038] Also Congress can prohibit the introduction of intoxicating liquors into land occupied by a tribe of uncivilized Indians within territory admitted to statehood.[1039] Nor can a State withdraw Indians within its borders from the operation of acts of Congress regulating trade with them by conferring on them rights of citizenship and suffrage, whether by its constitution or its statutes.[1040] And when a State is admitted into the Union Congress may, in the enabling act, reserve authority to legislate in the future respecting the Indians residing within the new State, and may declare that existing acts of Congress relating to traffic and intercourse with them shall remain in force.[1041] Clause 4. _The Congress shall have Power_ * * * To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States. Naturalization and Citizenship CATEGORIES OF NATURALIZED PERSONS Naturalization has been defined by the Supreme Court as "the act of adopting a foreigner, and clothing him with the privileges of a native citizen, * * *"[1042] In the Dred Scott Case,[1043] the Court asserted that the power of Congress under this clause applies only to "persons born in a foreign country, under a foreign government."[1044] These dicta are much too narrow to sustain the power which Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. In the words of the Court: "As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries."[1045] By the Immigration and Nationality Act of June 27, 1952,[1046] which codifies much previous legislation, it is enacted that the following shall be citizens of the United States at birth: "(1) a person born in the United States, and subject to the jurisdiction thereof; "(2) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: _Provided_, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property; "(3) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person; "(4) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States; "(5) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person; "(6) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States; "(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: _Provided_, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph."[1047] By the same act, "persons born in the Canal Zone and Panama after February 26, 1904, one or both of whose parents were at the time of birth of such person citizens of the United States, are declared to be citizens of the United States; as likewise are of certain categories of persons born in Puerto Rico, Alaska, Hawaii, the Virgin Islands and Guam on or after certain stated dates."[1048] WHO ARE ELIGIBLE FOR NATURALIZATION Naturalization is a privilege to be given, qualified, or withheld as Congress may determine, which an alien may claim only upon compliance with the terms which Congress imposes. Earlier the privilege was confined to white persons and persons of African descent, but was extended by the Act of December 17, 1943, to descendants of races indigenous to the Western Hemisphere and Chinese persons or persons of Chinese descent;[1049] and by the Act of June 27, 1952, "the rights of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because the person is married."[1050] But, any person "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches * * *" opposition to all organized government, or "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches the overthrow by force or violence or other unconstitutional means of the Government of the United States" may not be naturalized as a citizen of the United States.[1051] These restrictive provisions are, moreover, "applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the petition for naturalization or after such filing and before taking the final oath of citizenship is, or has been found to be within any of the classes enumerated within this section, notwithstanding that at the time the petition is filed he may not be included within such classes."[1052] THE PROCEDURE OF NATURALIZATION This involves as its principal and culminating event the taking in open court by the applicant of an oath: "(1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5)(A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by law."[1053] Any naturalized person who takes this oath with mental reservations or conceals beliefs and affiliations which under the statute disqualify one for naturalization, is subject, upon these facts being shown in a proceeding brought for the purpose, to have his certificate of naturalization cancelled.[1054] Furthermore, if a naturalized person shall within five years "following his naturalization become a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have precluded such person from naturalization under the provisions of section 313, it shall be considered prima facie evidence that such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the revocation and setting aside of the order admitting such person to citizenship and the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation. * * *" [1055] RIGHTS OF NATURALIZED PERSONS Chief Justice Marshall early stated the dictum that "a naturalized citizen * * * become[s] a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual."[1056] A similar idea was expressed in 1946 in Knauer _v._ United States:[1057] "Citizenship obtained through naturalization is not a second-class citizenship. * * * [It] carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very Charter of our Government."[1058] But, as shown above, a naturalized citizen is subject at any time to have his good faith in taking the oath of allegiance to the United States inquired into, and to lose his citizenship if lack of such faith is shown in proper proceedings.[1059] Also, "a person who has become a national by naturalization" may lose his nationality by "having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated," or by "having a continuous residence for five years in any other foreign state or states."[1060] However, in the absence of treaty or statute to the contrary effect, a child born in the United States who is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, does not thereby lose his American citizenship provided that on attaining his majority he elects to retain it and returns to the United States to assume its duties.[1061] CONGRESS' POWER EXCLUSIVE Congress' power over naturalization is an exclusive power. A State cannot denationalize a foreign subject who has not complied with federal naturalization law and constitute him a citizen of the United States, or of the State, so as to deprive the federal courts of jurisdiction over a controversy between him and a citizen of a State.[1062] But power to naturalize aliens may be, and early was, devolved by Congress upon state courts having a common law jurisdiction.[1063] Also States may confer the right of suffrage upon resident aliens who have declared their intention to become citizens, and have frequently done so.[1064] RIGHT OF EXPATRIATION: LOSS OF CITIZENSHIP Notwithstanding evidence in early court decisions[1065] and in the Commentaries of Chancellor Kent of a brief acceptance of the ancient English doctrine of perpetual and unchangeable allegiance to the government of one's birth, whereby a citizen is precluded from renouncing his allegiance without permission of that government, the United States, since enactment of the act of 1868,[1066] if indeed not earlier, has expressly recognized the right of everyone to expatriate himself and choose another country. Retention of citizenship is not dependent entirely, however, upon the desires of the individual; for, although it has been "conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen," the United States, by virtue of the powers which inhere in it as a sovereign nation, has been deemed competent to provide that an individual voluntarily entering into certain designated conditions shall, as a consequence thereof, suffer the loss of citizenship.[1067] Exclusion of Aliens The power of Congress "to exclude aliens from the United States and to prescribe the terms and conditions on which they come in" is absolute, being an attribute of the United States as a sovereign nation. In the words of the Court: "That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. * * * The United States, in their relation to foreign countries and their subjects or citizens are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory."[1068] By the Immigration and Nationality Act of June 27, 1952, some thirty-one categories of aliens are excluded from the United States[1069] including "aliens who are, or at any time have been, members * * * of or affiliated with any organization that advocates or teaches * * * the overthrow by force, violence, or other unconstitutional means of the Government of the United States * * *"[1070] With this power of exclusion goes also the power to assert a considerable degree of control over aliens after their admission to the country. By the Alien Registration Act of 1940[1071] it was provided that all aliens in the United States, fourteen years of age and over, should submit to registration and finger printing, and wilful failure to do so was made a criminal offense against the United States. This Act, taken in conjunction with other laws regulating immigration and naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens and precludes enforcement of a State registration act. Said the Court, speaking by Justice Black: "With a view to limiting prospective residents from foreign lands to those possessing the qualities deemed essential to good and useful citizenship in America, carefully defined qualifications are required to be met before aliens may enter our country. These qualifications include rigid requirements as to health, education, integrity, character, and adaptability to our institutions. Nor is the alien left free from the application of federal laws after entry and before naturalization. If during the time he is residing here he should be found guilty of conduct contrary to the rules and regulations laid down by Congress, he can be deported. At the time he enters the country, at the time he applies for permission to acquire the full status of citizenship, and during the intervening years, he can be subjected to searching investigations as to conduct and suitability for citizenship."[1072] The Act of June 27, 1952, repeats these requirements of the Act of 1940.[1073] Recent cases underscore the sweeping nature of the powers of the National Government to exclude aliens from the United States and to deport by administrative process members of excluded classes. In Knauff _v._ Shaughnessy,[1074] decided early in 1950, an order of the Attorney General excluding, on the basis of confidential information, a wartime bride who was prima facie entitled to enter the United States under The War Brides Act of 1945,[1075] was held to be not reviewable by the courts; nor were regulations on which the order was based invalid as representing an undue delegation of legislative power. Said the Court: "Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent."[1076] In cases decided in March and April, 1952, comparable results were reached: The Internal Security Act of 1950, section 23, in authorizing the Attorney General to hold in custody, without bail, aliens who are members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional.[1077] Nor was it unconstitutional to deport under the Alien Registration Act of 1940[1078] a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it _ex post facto_, being but an exercise of the power of the United States to terminate its hospitality _ad libitum_.[1079] And a statutory provision[1080] which makes it a felony for an alien against whom a specified order of deportation is outstanding "to willfully fail or refuse to make timely application for travel or other documents necessary to his departure" is not on its face void for "vagueness."[1081] The power of Congress to legislate with respect to the conduct of alien residents is, however, a concomitant of its power to prescribe the terms and conditions on which they may enter the United States; to establish regulations for sending out of the country such aliens as have entered in violation of law; and to commit the enforcement of such conditions and regulations to executive officers. It is not a power to lay down a special code of conduct for alien residents or to govern private relations with them. Purporting to enforce the above distinction, the Court, in 1909, held void a statutory provision which, in prohibiting the importation of "any alien woman or girl for the purpose of prostitution," provided further that whoever should keep for the purpose of prostitution "any alien woman or girl within three years after she shall have entered the United States" should be deemed guilty of a felony and punished therefor.[1082] Three Justices, however, thought the measure justifiable on the principle that "for the purpose of excluding those who unlawfully enter this country Congress has power to retain control over aliens long enough to make sure of the facts. * * * To this end it may make their admission conditional for three years. * * *" [And] "if Congress can forbid the entry * * *, it can punish those who cooperate in their fraudulent entry."[1083] Bankruptcy PERSONS WHO MAY BE RELEASED FROM DEBT In an early case on circuit Justice Livingston suggested that inasmuch as the English statutes on the subject of bankruptcy from the time of Henry VIII down had applied only to traders it might "well be doubted, whether an act of Congress subjecting to such a law every description of persons within the United States, would comport with the spirit of the powers vested in them in relation to this subject."[1084] Neither Congress nor the Supreme Court has ever accepted this limited view. The first bankruptcy law, passed in 1800, departed from the English practice to the extent of including bankers, brokers, factors and underwriters as well as traders.[1085] Asserting that the narrow scope of the English statutes was a mere matter of policy, which by no means entered into the nature of such laws, Justice Story defined a law on the subject of bankruptcies in the sense of the Constitution as a law making provisions for cases of persons failing to pay their debts.[1086] This interpretation has been ratified by the Supreme Court. In Hanover National Bank _v._ Moyses,[1087] it held valid the Bankruptcy Act of 1898 which provided that persons other than traders might become bankrupts and that this might be done on voluntary petition. The Court has given tacit approval to the extension of the bankruptcy laws to cover practically all classes of persons and corporations,[1088] including even municipal corporations.[1089] LIBERALIZATION OF RELIEF GRANTED As the coverage of the bankruptcy laws has been expanded, the scope of the relief afforded to debtors has been correspondingly enlarged. The act of 1800, like its English antecedents, was designed primarily for the benefit of creditors. Beginning with the act of 1841, which opened the door to voluntary petitions, rehabilitation of the debtor has become an object of increasing concern to Congress. An adjudication in bankruptcy is no longer requisite to the exercise of bankruptcy jurisdiction. In 1867 the debtor for the first time was permitted, either before or after adjudication of bankruptcy, to propose terms of composition which would become binding upon acceptance by a designated majority of his creditors and confirmation by a bankruptcy court. This measure was held constitutional,[1090] as were later acts which provided for the reorganization of corporations which are insolvent or unable to meet their debts as they mature,[1091] and for the composition and extension of debts in proceedings for the relief of individual farmer-debtors.[1092] Nor is the power of Congress limited to adjustment of the rights of creditors. The Supreme Court has also ruled that the rights of a purchaser at a judicial sale of the debtor's property are within reach of the bankruptcy power, and may be modified by a reasonable extension of the period for redemption from such sale.[1093] The sympathetic attitude with which the Court has viewed these developments is reflected in the opinion in Continental Illinois National Bank and Trust Co. _v._ Chicago, R.I. and P.R. Co.,[1094] where Justice Sutherland wrote, on behalf of a unanimous court: "* * * these acts, far-reaching though they may be, have not gone beyond the limit of Congressional power; but rather have constituted extensions into a field whose boundaries may not yet be fully revealed."[1095] CONSTITUTIONAL LIMITATIONS ON THE POWER In the exercise of its bankruptcy powers Congress must not transgress the Fifth and Tenth Amendments. It may not take from a creditor specific property previously acquired from a debtor nor circumscribe the creditor's right to such an unreasonable extent as to deny him due process of law;[1096] neither may it subject the fiscal affairs of a political subdivision of a State to the control of a federal bankruptcy court.[1097] Since Congress may not supersede the power of a State to determine how a corporation shall be formed, supervised and dissolved, a corporation which has been dissolved by a decree of a State court may not file a petition for reorganization under the Bankruptcy Acts.[1098] But Congress may impair the obligation of a contract and may extend the provisions of the bankruptcy laws to contracts already entered into at the time of their passage.[1099] It may also empower courts of bankruptcy to entertain petitions by taxing agencies or instrumentalities for a composition of their indebtedness where the State has consented to the proceeding and the federal court is not authorized to interfere with the fiscal or governmental affairs of the petitioner.[1100] Also bankruptcy legislation must be uniform, but the uniformity required is geographic, not personal. Congress may recognize the laws of the States relating to dower, exemption, the validity of mortgages, priorities of payment and similar matters, even though such recognition leads to different results from State to State.[1101] THE POWER NOT EXCLUSIVE Prior to 1898 Congress exercised the power to establish "uniform laws on the subject of bankruptcies" only very intermittently. The first national bankruptcy law was not enacted until 1800 to be repealed in 1803; the second was passed in 1841 and repealed two years later; the third was enacted in 1867 and repealed in 1878.[1102] Thus during the first 89 years under the Constitution a national bankruptcy law was in existence only sixteen years altogether. Consequently the most important problems of interpretation which arose during that period concerned the effect of this clause on State law. The Supreme Court ruled at an early date that in the absence of Congressional action the States may enact insolvency laws since it is not the mere existence of the power but rather its exercise which is incompatible with the exercise of the same power by the States.[1103] Later cases were to settle further that the enactment of a national bankruptcy law does not invalidate State laws in conflict therewith but serves only to relegate them to a state of suspended animation with the result that upon repeal of the national statute they again come into operation without reenactment.[1104] CONSTITUTIONAL STATUS OF STATE INSOLVENCY LAWS A State is, of course, without power to enforce any law governing bankruptcies which impairs the obligation of contracts,[1105] extends to persons or property outside its jurisdiction,[1106] or conflicts with the national bankruptcy laws.[1107] Giving effect to the policy of the federal statute, the Supreme Court has held that a State statute regulating the distribution of property of an insolvent was suspended by that law,[1108] and that a State court was without power to proceed with pending foreclosure proceedings after a farmer-debtor had filed a petition in the federal bankruptcy court for a composition or extension of time to pay his debts.[1109] A State law governing fraudulent transfers was found to be compatible with the act of Congress,[1110] as was a statute which provided that a discharge in bankruptcy should be unavailing to terminate the suspension of the driver's license of a person who failed to pay a judgment rendered against him for damages resulting from his negligent operation of a motor vehicle.[1111] If a State desires to participate in the assets of a bankrupt it must submit to the appropriate requirements of the Bankruptcy Court with respect to the filing of claims by a designated date; it cannot assert a claim for taxes by filing a demand therefor at a later date.[1112] Clauses 5 and 6. _The Congress shall have Power_ * * * To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures. * * * To provide for the Punishment of counterfeiting the Securities and current Coin of the United States. Fiscal and Monetary Powers of Congress COINAGE, WEIGHTS AND MEASURES The power "to coin money" and "regulate the value thereof" has been broadly construed to authorize regulation of every phase of the subject of currency. Congress may charter banks and endow them with the right to issue circulating notes,[1113] and may restrain the circulation of notes not issued under its own authority.[1114] To this end it may impose a prohibitive tax upon the circulation of the notes of State banks[1115] or of municipal corporations.[1116] It may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold. A plaintiff who sought payment for the gold coin and certificates thus surrendered in an amount measured by the higher market value of gold, was denied recovery on the ground that he had not proved that he would suffer any actual loss by being compelled to accept an equivalent amount of other currency.[1117] Inasmuch as "every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power,"[1118] the Supreme Court sustained the power of Congress to make Treasury notes legal tender in satisfaction of antecedent debts,[1119] and, many years later, to abrogate the clauses in private contracts calling for payment in gold coin, even though such contracts were executed before the legislation was passed.[1120] The power to coin money also imports authority to maintain such coinage as a medium of exchange at home, and to forbid its diversion to other uses by defacement, melting or exportation.[1121] THE PUNISHMENTS OF COUNTERFEITING In its affirmative aspect this clause has been given a narrow interpretation; it has been held not to cover the circulation of counterfeit coin or the possession of equipment susceptible of use for making counterfeit coin.[1122] At the same time the Supreme Court has rebuffed attempts to read into this provision a limitation upon either the power of the States or upon the powers of Congress under the preceding clause. It has ruled that a State may punish the utterance of forged coins.[1123] On the ground that the power of Congress to coin money imports "the correspondent and necessary power and obligation to protect and to preserve in its purity this constitutional currency for the benefit of the nation,"[1124] it has sustained federal statutes penalizing the importation or circulation of counterfeit coin,[1125] or the willing and conscious possession of dies in the likeness of those used for making coins of the United States.[1126] In short, the above clause is entirely superfluous. Congress would have had the power which it purports to confer under the necessary and proper clause; and the same is the case with the other enumerated crimes which it is authorized to punish. The enumeration was unnecessary and is not exclusive.[1127] THE BORROWING POWER VERSUS THE FISCAL POWER Usually the aggregate of the fiscal and monetary powers of the National Government--to lay and collect taxes, to borrow money and to coin money and regulate the value thereof--have reinforced each other, and, cemented by the necessary and proper clause, have provided a secure foundation for acts of Congress chartering banks and other financial institutions,[1128] or making its treasury notes legal tender in the payment of antecedent debts.[1129] But in 1935 the opposite situation arose--one in which the power to regulate the value of money collided with the obligation incurred in the exercise of the power to borrow money. By a vote of eight-to-one the Supreme Court held that the obligation assumed by the exercise of the latter was paramount, and could not be repudiated to effectuate the monetary policies of Congress.[1130] In a concurring opinion Justice Stone declined to join with the majority in suggesting that "the exercise of the sovereign power to borrow money on credit, which does not override the sovereign immunity from suit, may nevertheless preclude or impede the exercise of another sovereign power, to regulate the value of money; or to suggest that although there is and can be no present cause of action upon the repudiated gold clause, its obligation is nevertheless, in some manner and to some extent, not stated, superior to the power to regulate the currency which we now hold to be superior to the obligation of the bonds."[1131] Clause 7. _The Congress shall have Power_ * * * To establish Post Offices and post Roads. The Postal Power "ESTABLISH" The great question raised in the early days with reference to the postal clause concerned the meaning to be given to the word "establish"--did it confer upon Congress the power to _construct_ post offices and post roads, or only the power to _designate_ from existing places and routes those that should serve as post offices and post roads? As late as 1855 Justice McLean stated that this power "has generally been considered as exhausted in the designation of roads on which the mails are to be transported," and concluded that neither under the commerce power nor the power to establish post roads could Congress construct a bridge over a navigable water.[1132] A decade earlier, however, the Court, without passing upon the validity of the original construction of the Cumberland Road, held that being "charged, * * *, with the transportation of the mails," Congress could enter a valid compact with the State of Pennsylvania regarding the use and upkeep of the portion of the road lying in that State.[1133] The debate on the question was terminated in 1876 by the decision in Kohl _v._ United States[1134] sustaining a proceeding by the United States to appropriate a parcel of land in Cincinnati as a site for a post office and courthouse. POWER TO PROTECT THE MAILS The postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.[1135] And not only are the mails under the protection of the National Government, they are in contemplation of law its property. This principle was recognized by the Supreme Court in 1845 in holding that wagons carrying United States mail were not subject to a State toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States.[1136] Half a century later it was availed of as one of the grounds on which the national executive was conceded the right to enter the national courts and demand an injunction against the authors of any wide-spread disorder interfering with interstate commerce and the transmission of the mails.[1137] ANTI-SLAVERY AND THE MAILS Prompted by the efforts of Northern anti-slavery elements to disseminate their propaganda in the Southern States through the mails, President Jackson, in his annual message to Congress in 1835, suggested "the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection."[1138] In the Senate John C. Calhoun resisted this recommendation, taking the position that it belonged to the States and not to Congress to determine what is and what is not calculated to disturb their security. He expressed the fear that if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation.[1139] POWER TO PREVENT HARMFUL USE OF THE POSTAL FACILITIES Some thirty years later Congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson,[1140] the Court sustained the exclusion of circulars relating to lotteries on the general ground that "the right to designate what shall be carried necessarily involves the right to determine what shall be excluded."[1141] The leading fraud order case, decided in 1904, holds to the same effect.[1142] Pointing out that it is "an indispensable adjunct to a civil government," to supply postal facilities, the Court restated its premise that the "legislative body in thus establishing a postal service, may annex such conditions to it as it chooses."[1143] Later cases appear to have qualified these sweeping declarations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness and circulation and that all paid advertisements in such publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications. Chief Justice White warned that the Court by no means intended to imply that it endorsed the government's "broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition * * *"[1144] Again, in Milwaukee Social Democratic Publishing Co. _v._ Burleson,[1145] where the Court sustained an order of the Postmaster General excluding from the second-class privilege a newspaper which he found to have systematically published matter banned by the Espionage Act of 1917, the claim of absolute power in Congress to withhold this privilege was sedulously avoided. More recently, when reversing an order denying the second-class privilege to a mailable publication because of the poor taste and vulgarity of its contents, on the ground that the Postmaster General exceeding his statutory authority, Justice Douglas assumed, in the opinion of the Court, "that Congress has a broad power of classification and need not open second-class mail to publications of all types."[1146] THE EXCLUSION POWER AS AN ADJUNCT TO OTHER POWERS In the cases just reviewed the mails were closed to particular types of communication which were deemed to be harmful. A much broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935.[1147] To induce compliance with the regulatory requirements of that act, Congress denied the privilege of using the mails for any purpose to holding companies which failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. While it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,[1148] it declared that "Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province, * * *."[1149] STATE REGULATIONS AFFECTING THE MAILS In determining the extent to which State laws may impinge upon persons or corporations whose services are utilized by Congress in executing its postal powers, the task of the Supreme Court has been to determine whether particular measures are consistent with the general policies indicated by Congress. Broadly speaking, the Court has approved regulations which have a trivial or remote relation to the operation of the postal service, while disallowing those which constitute a serious impediment to it. Thus a State statute which granted to one company an exclusive right to operate a telegraph business in the State was found to be incompatible with a federal law which, in granting to any telegraph company the right to construct its lines upon post roads, was interpreted as a prohibition of State monopolies in a field which Congress was entitled to regulate in the exercise of its combined power over commerce and post roads.[1150] An Illinois statute which, as construed by the State courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station, also was held to be an unconstitutional interference with the power of Congress under this clause.[1151] But a Minnesota statute which required intrastate trains to stop at county seats was found to be unobjectionable.[1152] Local laws classifying postal workers with railroad employees for the purpose of determining a railroad's liability for personal injuries,[1153] or subjecting a union of railway mail clerks to a general law forbidding any "labor organization" to deny any person membership because of his race, color or creed,[1154] have been held not to conflict with national legislation or policy in this field. Despite the interference _pro tanto_ with the performance of a federal function, a State may arrest a postal employee charged with murder while he is engaged in carrying out his official duties,[1155] but it cannot punish a person for operating a mail truck over its highways without procuring a driver's license from State authorities.[1156] Clause 8. _The Congress shall have Power_ * * * To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Copyrights and Patents SCOPE OF THE POWER This clause is the foundation upon which the national patent and copyright laws rest, although it uses neither of those terms. So far as patents are concerned, modern legislation harks back to the Statute of Monopolies of 1624, whereby Parliament endowed inventors with the sole right to their inventions for fourteen years.[1157] Copyright law, in turn, traces back to the statute of 1710 which secured to authors of books the sole right of publishing them for designated periods.[1158] Congress was not, however, by this provision, vested with anything akin to the royal prerogative in the creation and bestowal of monopolistic privileges. Its power is limited as to subject matter, and as to the purpose and duration of the rights granted. Only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts.[1159] While Congress may grant exclusive rights only for a limited period, it may extend the term upon the expiration of the period originally specified, and in so doing may protect the rights of purchasers and assignees.[1160] The copyright and patent laws do not have, of their own force, any extraterritorial operation.[1161] PATENTABLE DISCOVERIES The protection afforded by acts of Congress under this clause is limited to new and useful inventions,[1162] and while a patentable invention is a mental achievement,[1163] yet for an idea to be patentable it must have first taken physical form.[1164] Despite the fact that the Constitution uses the term "discovery" rather than "invention," a patent may not issue for the discovery of a hitherto unknown phenomenon of nature; "if there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."[1165] Conversely, the mental processes which are thus applied must display "more ingenuity * * * than the work of a mechanic skilled in the art";[1166] and while combination patents have been at times sustained,[1167] the accumulation of old devices is patentable "only when the whole in some way exceeds the sum of its parts."[1168] The Court's insistence on the presence of "inventive genius" as the test of patentability goes far back and has been reiterated again and again in slightly varying language,[1169] although it seems to have had little effect on the point of view of the Patent Office.[1170] PROCEDURE IN ISSUING PATENTS The standard of patentability is a constitutional standard, and the question of the validity of a patent is a question of law.[1171] Congress may authorize the issuance of a patent for an invention by a special, as well as by general law, provided the question as to whether the patentees device is in truth an invention is left open to investigation under the general law.[1172] The function of the Commissioner of Patents in issuing letters patent is deemed to be quasi-judicial in character. Hence an act granting a right of appeal from the Commission to the Court of Appeals for the District of Columbia is not unconstitutional as conferring executive power upon a judicial body.[1173] NATURE AND SCOPE OF THE RIGHT SECURED The leading case bearing on the nature of the rights which Congress is authorized to _secure_ is that of Wheaton _v._ Peters. Wheaton charged Peters with having infringed his copyright on the twelve volumes of "Wheaton's Reports" wherein are reported the decisions of the United States Supreme Court for the years from 1816 to 1827 inclusive. Peters's defense turned on the proposition that inasmuch as Wheaton had not complied with all of the requirements of the act of Congress, his alleged copyright was void. Wheaton, while denying this assertion of fact, further contended that the statute was only intended to _secure_ him in his pre-existent rights at common law. These at least, he claimed, the Court should protect. A divided Court held in favor of Peters on the legal question. It denied, in the first place, that there was any principle of the common law which protected an author in the sole right to continue to publish a work once published. It denied, in the second place, that there is any principle of law, common or otherwise, which pervades the Union except such as are embodied in the Constitution and the acts of Congress. Nor, in the third place, it held, did the word "securing" in the Constitution recognize the alleged common law principle which Wheaton invoked. The exclusive right which Congress is authorized to _secure_ to authors and inventors owes its existence solely to the acts of Congress securing it,[1174] from which it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as Congress, in its unhampered consultation of the public interest, sees fit to impose.[1175] In giving to authors the exclusive right to dramatize any of their works, Congress did not exceed its powers under this clause. Even as applied to pantomime dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which they were clothed.[1176] But the copyright of the description of an art in a book was held not to lay a foundation for an exclusive claim to the art itself. The latter can be protected, if at all, only by letters patent.[1177] Since copyright is a species of property distinct from the ownership of the equipment used in making copies of the matter copyrighted, the sale of a copperplate under execution did not pass any right to print and publish the map which the copperplate was designed to produce.[1178] A patent right may, however, be subjected, by bill in equity, to payment of a judgment debt of the patentee.[1179] POWER OF CONGRESS OVER PATENT RIGHTS Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the Government without just compensation.[1180] Congress may, however, modify rights under an existing patent, provided vested property rights are not thereby impaired,[1181] but it does not follow that it may authorize an inventor to recall rights which he has granted to others or reinvest in him rights of property which he had previously conveyed for a valuable and fair consideration.[1182] Furthermore, the rights which the present statutes confer are subject to the Anti-Trust Acts, though it can be hardly said that the cases in which the Court has endeavored to draw the line between the rights claimable by patentees and the kind of monopolistic privileges which are forbidden by those acts exhibit entire consistency in their holdings.[1183] STATE POWER AFFECTING PATENTS AND COPYRIGHTS Nor do the patent laws displace the police or taxing powers of the States. Whatever rights are secured to inventors must be enjoyed in subordination to the general authority of the State over all property within its limits. A statute of Kentucky requiring the condemnation of illuminating oils which were inflammable at less than 130 degrees Fahrenheit, was held not to interfere with any right secured by the patent laws, although the oil for which the patent was issued could not be made to comply with State specifications.[1184] In the absence of federal legislation, a State may prescribe reasonable regulations for the transfer of patent rights so as to protect its citizens from fraud. Hence a requirement of State law that the words "given for a patent right" appear on the face of notes given in payment for such right is not unconstitutional.[1185] Royalties received from patents or copyrights are subject to a nondiscriminating State income tax, a holding to the contrary in 1928 having been subsequently overruled.[1186] TRADE-MARKS AND ADVERTISEMENTS In the famous Trade-Mark Cases,[1187] decided in 1879, the Supreme Court held void acts of Congress which, in apparent reliance upon this clause, extended the protection of the law to trade-marks registered in the Patent Office. "The ordinary trade-mark" said Justice Miller for the Court, "has no necessary relation to invention or discovery"; nor is it to be classified "under the head of writings of authors." It does not "depend upon novelty, invention, discovery, or any work of the brain."[1188] Not many years later the Court, again speaking through Justice Miller, ruled that a photograph may be constitutionally copyright,[1189] while still more recently a circus poster was held to be entitled to the same protection. In answer to the objection of the Circuit Court that a lithograph which "has no other use than that of a mere advertisement * * * (would not be within) the meaning of the Constitution," Justice Holmes summoned forth the shades of Velasquez, Whistler, Rembrandt, Ruskin, Degas, and others in support of the proposition that it is not for the courts to attempt to judge the worth of pictorial illustrations outside the narrowest and most obvious limits.[1190] Clause 9. _The Congress shall have Power_ * * * To constitute Tribunals inferior to the supreme Court; _See_ article III, p. 528. Clause 10. _The Congress shall have Power_ * * * To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations. Piracies, Felonies, and Offenses Against the Law of Nations ORIGIN OF THE CLAUSE "When the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among civilized nations of Europe, as their public law. * * * The faithful observance of this law is essential to national character, * * *"[1191] These words of Chancellor Kent expressed the view of the binding character of International Law which was generally accepted at the time the Constitution was adopted. During the Revolutionary War, Congress took cognizance of all matters arising under the law of nations and professed obedience to that law.[1192] Under the Articles of Confederation, it was given exclusive power to appoint courts for the trial of piracies and felonies committed on the high seas, but no provision was made for dealing with offenses against the law of nations.[1193] The draft of the Constitution submitted to the Convention of 1787 by its Committee of Detail empowered Congress "to declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations."[1194] In the debate on the floor of the Convention the discussion turned on the question as to whether the terms, "felonies" and the "law of nations," were sufficiently precise to be generally understood. The view that these terms were often so vague and indefinite as to require definition eventually prevailed and Congress was authorized to define as well as punish piracies, felonies and offenses against the law of nations.[1195] DEFINITION OF OFFENSES The fact that the Constitutional Convention considered it necessary to give Congress authority to define offenses against the law of nations does not mean that in every case Congress must undertake to codify that law or mark its precise boundaries before prescribing punishments for infractions thereof. An act punishing "the crime of piracy, as defined by the law of nations" was held to be an appropriate exercise of the constitutional authority to "define and punish" the offense, since it adopted by reference the sufficiently precise definition of International Law.[1196] Similarly, in Ex parte Quirin,[1197] the Court found that by the reference in the Fifteenth Article of War to "offenders or offenses that * * * by the law of war may be triable by such military commissions * * *," Congress had "exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals."[1198] Where, conversely, Congress defines with particularity a crime which is "an offense against the law of nations," the law is valid, even if it contains no recital disclosing that it was enacted pursuant to this clause. Thus the duty which the law of nations casts upon every government to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof, was found to furnish a sufficient justification for the punishment of the counterfeiting within the United States, of notes, bonds and other securities of foreign governments.[1199] EXTRATERRITORIAL REACH OF THE POWER Since this clause contains the only specific grant of power to be found in the Constitution for the punishment of offenses outside the territorial limits of the United States, a lower federal court held in 1932[1200] that the general grant of admiralty and maritime jurisdiction by article III, section 2, could not be construed as extending either the legislative or judicial power of the United States to cover offenses committed on vessels outside the United States but not on the high seas. Reversing that decision, the Supreme Court held that this provision "cannot be deemed to be a limitation on the powers, either legislative or judicial, conferred on the National Government by article III, § 2. The two clauses are the result of separate steps independently taken in the Convention, by which the jurisdiction in admiralty, previously divided between the Confederation and the States, was transferred to the National Government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the States and the National Government powers which were common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of every grade committed on them while in foreign territorial waters."[1201] Within the meaning of this section an offense is committed on the high seas even where the vessel on which it occurs is lying at anchor on the road in the territorial waters of another country.[1202] Clauses 11, 12, 13, and 14. _The Congress shall have power_ * * *: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. To provide and maintain a Navy. To make Rules for the Government and Regulation of the land and naval Forces. The War Power SOURCE AND SCOPE Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,[1203] Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by article I, section 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.[1204] Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch _v._ Maryland[1205] he listed the power "to declare _and conduct_ a war"[1206] as one of the "enumerated powers" from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex Parte Milligan, Chief Justice Chase described the power to declare war as "necessarily" extending "to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns."[1207] In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,[1208] the Court referred to "the war power" as a single unified power.[1209] AN INHERENT POWER Thereafter we find the phrase, "the war power," being used by both Chief Justice White[1210] and Chief Justice Hughes,[1211] the former declaring the power to be "complete and undivided."[1212] Not until 1936 however did the Court explain the logical basis for imputing such an inherent power to the Federal Government. In United States _v._ Curtiss-Wright Export Corp.,[1213] the reasons for this conclusion were stated by Justice Sutherland as follows: "As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency--namely the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. * * * It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality."[1214] A COMPLEXUS OF GRANTED POWERS In the more recent case of Lichter _v._ United States,[1215] on the other hand, the Court speaks of the "war powers" of Congress. Upholding the Renegotiation Act, it declared that: "In view of this power 'To raise and support Armies, * * *' and the power granted in the same Article of the Constitution 'to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, * * *' the only question remaining is whether the Renegotiation Act was a law 'necessary and proper for carrying into Execution' the war powers of Congress and especially its power to support armies."[1216] In a footnote it listed the Preamble, the necessary and proper clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander in Chief of the Army and Navy, as being "among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war, * * *"[1217] A DECLARATION OF WAR, WHEN REQUIRED In the first draft of the Constitution presented to the Convention of 1787 by its Committee of Detail Congress was empowered "to make war."[1218] On the floor of the Convention according to Madison's Journal "Mr. Madison and Mr. Gerry, moved to insert '_declare_' striking out '_make_' war; leaving to the Executive the power to repel sudden attacks"[1219] and their motion was adopted. When the Bey of Tripoli declared war upon the United States in 1801 a sharp debate was precipitated as to whether a formal declaration of war by Congress was requisite to create the legal status of war. Jefferson sent a squadron of frigates to the Mediterranean to protect our commerce but its mission was limited to defense in the narrowest sense of the term. After one of the vessels in this squadron had been engaged by, and had defeated, a Tripolitan cruiser, the latter was permitted to return home. Jefferson defended this course in a message to Congress saying, "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew."[1220] Hamilton promptly espoused a different interpretation of the power given to Congress to declare war. "It is the peculiar and exclusive province of Congress," he declared "_when the nation is at peace_ to change that state into a state of war; whether from calculations of policy, or from provocations, or injuries received; in other words, it belongs to Congress only _to go to War_. But when a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact _already at war_, and any declaration on the part of Congress is nugatory; it is at least unnecessary."[1221] Apparently Congress shared the view that a formal declaration of war was unnecessary. It enacted a statute which authorized the President to instruct the commanders of armed vessels of the United States to "seize and make prize of all vessels, goods and effects, belonging to the Bey of Tripoli, * * *; and also to cause to be done all such other acts of precaution or hostility as _the state of war_ will justify, * * *"[1222] THE PRIZE CASES, 1863 Sixty years later the Supreme Court, in sustaining the blockade of the Southern ports which Lincoln had instituted in April 1861, at a time when Congress was not in session, adopted virtually the same line of reasoning as Hamilton had advanced. "This greatest of civil wars" said the Court "was not gradually developed * * * it * * * sprung forth suddenly from the parent brain, a Minerva in the full panoply of _war_. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact."[1223] This doctrine was sharply challenged by a powerful minority of the Court on the ground that while the President could unquestionably adopt such measures as the statutes permitted for the enforcement of the laws against insurgents, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences which ensue a state of war.[1224] Inasmuch as the Court finally conceded that the blockade had been retroactively sanctioned by Congress, that part of its opinion dealing with the power of the President, acting alone, was really _obiter_. But a similar opinion was voiced by Chief Justice Chase on behalf of a unanimous Court, after the war was over. In Freeborn _v._ The "Protector,"[1225] it became necessary to ascertain the exact dates on which the war began and ended in order to determine whether the statute of limitation had run against the asserted claim. To answer this question the Chief Justice said that "it is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second."[1226] The Power To Raise and Maintain Armed Forces PURPOSE OF SPECIFIC GRANTS The clauses of the Constitution which give Congress authority "to raise and support armies, to provide and maintain a navy" and so forth, were not inserted for the purpose of endowing the National Government with power to do these things, but rather to designate the department of government which should exercise such powers. Moreover, they permit Congress to take measures essential to the national defense in time of peace as well as during a period of actual conflict. That these provisions grew out of the conviction that the Executive should be deprived of the "sole power of raising and regulating fleets and armies" which Blackstone attributed to the King under the British Constitution,[1227] was emphasized by Story in his Commentaries. He wrote: "Our notions, indeed, of the dangers of standing armies, in time of peace, are derived in a great measure from the principles and examples of our English ancestors. In England, the King possessed the power of raising armies in the time of peace according to his own good pleasure. And this prerogative was justly esteemed dangerous to the public liberties. Upon the revolution of 1688, Parliament wisely insisted upon a bill of rights, which should furnish an adequate security for the future. But how was this done? Not by prohibiting standing armies altogether in time of peace; but (as has been already seen) by prohibiting them _without the consent of Parliament_. This is the very proposition contained in the Constitution; for Congress can alone raise armies; and may put them down, whenever they choose."[1228] THE TIME LIMIT ON APPROPRIATIONS FOR THE ARMY Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that "no appropriation of money to that use shall be for a longer term than two years." In 1904 the question arose whether this provision would be violated if the Government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments were likely to continue for more than two years. Solicitor-General Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution "are those only which are to raise and support armies in the strict sense of the word 'support,' and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense, * * *"[1229] Relying on this earlier opinion, Attorney General Clark ruled in 1948 that there was "no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended."[1230] ESTABLISHMENT OF THE AIR FORCE By the National Security Act of 1947[1231] there was established within the National Military Establishment "an executive department to be known as the Department of the Air Force" which was made coordinate with the Departments of the Army and the Navy. Shortly after the passage of this Act a Joint Resolution was offered in the House of Representatives, proposing an amendment to the Constitution whereby Congress would be authorized to "provide and maintain an Air Force and to make rules for the government and regulation thereof," and the President would be designated as Commander in Chief of the Air Force.[1232] Apparently in the belief that the broad sweep of the war power warranted the creation of the Air Force, without a constitutional amendment, Congress took no action on this proposal. CONSCRIPTION The constitutions adopted during the Revolutionary War by at least nine of the States sanctioned compulsory military service.[1233] Towards the end of the War of 1812, conscription of men for the army was proposed by James Monroe, then Secretary of War, but opposition developed and peace came before the bill could be enacted.[1234] In 1863 a compulsory draft law was adopted and put into operation without being challenged in the federal courts.[1235] Not so the Selective Service Act of 1917. This measure was attacked on the grounds that it tended to deprive the States of the right to "a well-regulated militia," that the only power of Congress to exact compulsory service was the power to provide for calling forth the militia for the three purposes specified in the Constitution, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected all of these contentions. It held that the powers of the States with respect to the militia were exercised in subordination to the paramount power of the National Government to raise and support armies, and that the power of Congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby.[1236] Before the United States entered the first World War, the Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it in the following words: "It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers."[1237] Accordingly, in the Selective Draft Law Cases[1238] it dismissed the objection under that amendment as a contention that was "refuted by its mere statement."[1239] CARE OF ARMED FORCES Congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall be received, the compensation he shall be allowed and the service to which he shall be assigned. This power may be exerted to supersede parents' control of minor sons who are needed for military service. Where the statute which required the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the Government.[1240] Since the possession of government insurance payable to the person of his choice, is calculated to enhance the morale of the serviceman, Congress may permit him to designate any beneficiary he desires, irrespective of State law, and may exempt the proceeds from the claims of creditors.[1241] To safeguard the health and welfare of the armed forces, Congress may authorize the suppression of houses of ill fame in the vicinity of the places where such forces are stationed.[1242] TRIAL AND PUNISHMENT OF OFFENSES Under its power to make rules for the Government and regulation of the land and naval forces, Congress may provide for the trial and punishment of military and naval offenses in the manner practiced by civilized nations. This authority is independent of the judicial power conferred by article III.[1243] "Cases arising in the land and naval forces" are expressly excepted from the provision of the Fifth Amendment requiring presentment by a grand jury for capital or infamous and by implication they are also excepted from Amendment VI,[1244] which relates to the trial of criminal offenses. Also the Fifth Amendment's provision against double-jeopardy apparently does not apply to military courts.[1245] A statute which provided that offenses not specifically mentioned therein should be punished "according to the laws and customs of such cases at sea" was held sufficient to give a naval court-martial jurisdiction to try a seaman of the United States Navy for the unspecified offense of attempted desertion.[1246] In _habeas corpus_ proceedings a court can consider only whether the military tribunal had jurisdiction to act in the case under consideration.[1247] The acts of a court-martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by a writ of prohibition or otherwise.[1248] War Legislation THE REVOLUTIONARY WAR LEGISLATION The American Revolution affords many precedents for extensive and detailed regulation of the nation's economy in time of war. But since the resolves of Congress under the Articles of Confederation were in practical effect mere recommendations to the State legislatures, it was the action of the latter which made these policies effective. On November 22, 1777, for example, Congress recommended to the States that they take steps "to regulate and ascertain the price of labour, manufactures, [and] internal produce."[1249] A month later the same body further recommended "to the respective legislatures of the United States, forthwith to enact laws, appointing suitable persons to seize and take, for the use of the continental army of the said States, all woolen cloths, blankets, linens, shoes, stockings, hats, and other necessary articles of clothing, * * *"[1250] Responding to such appeals, or acting on their own initiative, the State legislatures enacted measure after measure which entrenched upon the normal life of the community very drastically. Laws were passed forbidding the distillation of whiskey and other spirits in order to conserve grain supplies;[1251] fixing prices of labor and commodities, sometimes in greatest detail;[1252] levying requisitions upon the inhabitants for supplies needed by the army;[1253] and so on. In one instance a statute authorized the erection of an arms manufactory for the United States;[1254] in another, Negro Slaves were impressed for labor on fortifications.[1255] The fact that all this legislation came from the State legislatures whereas the war power was attributed to the "United States in Congress assembled" served to obscure the fact that the former was really an outgrowth of the latter. CIVIL WAR LEGISLATION The most pressing economic problem of the Civil War was that of finance. When Congress found itself unable to raise money to pay the soldiers in the field, it authorized the issuance of Treasury notes which, although not redeemable in specie, were made legal tender in payment of private debts. Upon its first consideration of this measure, the Supreme Court held it unconstitutional. It concluded that even if the circulation of such notes was facilitated by giving them the quality of legal tender, that result did not suffice to make the expedient an appropriate and plainly adapted means for the execution of the power to declare and carry on war.[1256] Three of the seven Justices then constituting the Court dissented from this decision,[1257] and it was reversed within a little more than a year, after two vacancies in the membership of the Court had been filled. One of the grounds relied upon by the new majority to sustain the statute was that the exigencies of war justified its enactment under the necessary and proper clause.[1258] WORLD WAR I LEGISLATION In meeting the strain which World War I put on our national resources of men and material, the economic activities of the people were directed or restricted by the Government on a scale previously unparalleled. The most sweeping measure of control was the Lever Food and Fuel Control Act,[1259] which authorized the President to regulate by license the importation, manufacture, storage, mining or distribution of necessaries; to requisition foods, feeds, and fuels; to take over and operate factories, packinghouses, pipelines, mines or other plants; to fix a minimum price for wheat; to limit, regulate or prohibit the use of food materials in the production of alcoholic beverages; and to fix the price of coal and coke and to regulate the production, sale and distribution thereof. Other statutes clothed him with power to determine priority in car service,[1260] to license trade with the enemy and his allies,[1261] and to take over and operate the rail and water transportation system,[1262] and the telephonic and telegraphic communication systems,[1263] of the country. WORLD WAR II LEGISLATION Several of these World War I measures were still on the statute books when World War II broke out. Moreover, in the period of preparation preceding the latter, Congress had enacted the Priorities Act of May 31, 1941[1264] which gave the President power to allocate any material where necessary to facilitate the defense effort. By the Second War Powers Act,[1265] passed early in 1942, the authority to allocate materials was extended to facilities. These two acts furnished the statutory foundation for the extensive system of consumer rationing administered by the Office of Price Administration, as well as for the comprehensive control of industrial materials and output which was exercised by the War Production Board. Under the Emergency Price Control Act[1266] the Office of Price Administration regulated the price of almost all commodities, as well as the rentals for housing accommodations in scores of defense rental areas. The War Labor Disputes Act[1267] permitted the President to commandeer plants which were closed by strikes. MOBILIZATION OF INDUSTRIAL RESOURCES While the validity of several of the measures just reviewed was assailed on one constitutional ground or another, the general power of Congress to regulate their subject matter in time of war was not disputed. Not until the Government sought to recover excessive profits realized on war contracts did the Supreme Court have occasion to affirm the broad authority of the National Government to mobilize the industrial resources of the nation in time of war. Using the power of Congress to conscript men for the armed forces as a measure of its power to regulate industry, the Court sustained the legislation, saying: "The Renegotiation Act was developed as a major wartime policy of Congress comparable to that of the Selective Service Act. The authority of Congress to authorize each of them sprang from its war powers. * * * With the advent of * * * [global] warfare, mobilized property in the form of equipment and supplies became as essential as mobilized manpower. Mobilization of effort extended not only to the uniformed armed services but to the entire population. Both Acts were a form of mobilization. The language of the Constitution authorizing such measures is broad rather than restrictive. * * * [It] * * * places emphasis upon the supporting as well as upon the raising of armies. The power of Congress as to both is inescapably express, not merely implied."[1268] DELEGATION OF LEGISLATIVE POWER IN WARTIME While insisting that, "in peace or in war it is essential that the Constitution be scrupulously obeyed, and particularly that the respective branches of the Government keep within the powers assigned to each,"[1269] the Supreme Court has recognized that in the conduct of a war delegations of power may be valid which would not be admissible in other circumstances. The cases in which this issue has been raised have been few in number. In one, the Selective Draft Law cases,[1270] the objection was dismissed without discussion. In a second, the price-fixing authority exercised by the Office of Price Administration during the second world war, was, on the issue of delegation of power, sustained by reference to peace time precedents.[1271] Where the war power has been the basis of decision, two different theories concerning its significance can be recognized. The first is that since the war power is an inherent power shared by the legislative and executive departments rather than an enumerated power granted to the former, Congress does not delegate _legislative_ power when it authorizes the President to exercise the war power in a prescribed manner. Opposed to this is the view that the right of Congress to delegate power to the President is limited in this as in other cases but that where the validity of the delegation depends upon whether or not too great a latitude of discretion has been conferred upon the Executive, the existence of a state of war is a factor to be considered in determining whether the delegation in the particular case is necessary and hence permissible. The idea that a delegation of discretion in the exercise of the war power stands on a different footing than delegation of authority to levy a tax is implicit in Justice Bradley's opinion in Hamilton _v._ Dillin.[1272] The plaintiffs in that case contended that the sum they were required to pay for the privileges of buying cotton in the South was a tax, which, since it was imposed by the Secretary of the Treasury, was invalid because the taxing power was not susceptible of delegation to the Executive Department. To this argument the Court replied: "It is hardly necessary, under the view we have taken of the character of the regulations in question, * * *, to discuss the question of the constitutionality of the act of July 13th, 1861, regarded as authorizing such regulations. * * *, the power of the Government to impose such conditions upon commercial intercourse with an enemy in time of war * * * does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government * * *."[1273] The Mergence of Legislative and Executive in Wartime Both theories receive countenance in different passages in the opinion of Chief Justice Stone in Hirabayashi _v._ United States.[1274] In disposing of the contention that the curfew imposed upon a citizen of Japanese descent involved an invalid delegation of legislative power, the Chief Justice said: "The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the curfew restriction here complained of. * * *, we conclude that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power. * * * Where, as in the present case, the standard set up for the guidance of the military commander, and the action taken and the reasons for it, are in fact recorded in the military orders, so that Congress, the courts and the public are assured that the orders, in the judgment of the commander, conform to the standards approved by the President and Congress, there is no failure in the performance of the legislative function."[1275] He went on to say, however, that: "The essentials of [the legislative] * * * function are the determination by Congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution. The very necessities which attend the conduct of military operations in time of war in this instance as in many others preclude Congress from holding committee meetings to determine whether there is danger, before it enacts legislation to combat the danger."[1276] Doctrine of Lichter _v._ United States A similar ambiguity is found in Lichter _v._ United States,[1277] but on the whole the opinion seems to espouse the second theory, as the following excerpts indicate: "_A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes_.--This power is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to methods to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition.[1278] * * * Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind. In 1942, in the early stages of total global warfare, the exercise of a war power such as the power 'To raise and support Armies, * * *' and 'To provide and maintain a Navy; * * *,' called for the production by us of war goods in unprecedented volume with the utmost speed, combined with flexibility of control over the product and with a high degree of initiative on the part of the producers. Faced with the need to exercise that power, the question was whether it was beyond the constitutional power of Congress to delegate to the high officials named therein the discretion contained in the Original Renegotiation Act of April 28, 1942, and the amendments of October 21, 1942. We believe that the administrative authority there granted was well within the constitutional war powers then being put to their predestined uses."[1279] WAR POWERS IN TIME OF PEACE To some indeterminate extent the power to wage war embraces the power to prepare for it and the further power to deal with the problem of adjustment after hostilities have ceased. In his Commentaries, Justice Story wrote as follows with specific reference to the question of preparation for war: "'It is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. * * * How could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? The means of security can be only regulated by the means and the danger of attack. * * * It will be in vain to oppose constitutional barriers to the impulse of self-preservation.'"[1280] Authoritative judicial recognition of the power is found in Ashwander _v._ Tennessee Valley Authority,[1281] where, in sustaining the power of the Government to construct and operate Wilson Dam and the power plant connected with it, pursuant to the National Defense Act of June 3, 1916,[1282] the Court said: "While the District Court found that there is no intention to use the nitrate plants or the hydroelectric units installed at Wilson Dam for the production of war materials in time of peace, 'the maintenance of said properties in operating condition and the assurance of an abundant supply of electric energy in the event of war, constitute national defense assets.' This finding has ample support."[1283] Atomic Energy Act By far the most significant example of legislation adopted at a time when no actual "shooting war" was in progress, with the object of providing for the national defense, is the Atomic Energy Act of 1946.[1284] That law establishes an Atomic Energy Commission of five members which is empowered to conduct through its own facilities, or by contracts with, or loans to private persons, research and developmental activity relating to nuclear processes, the theory and production of atomic energy and the utilization of fissionable and radioactive materials for medical, industrial and other purposes. The act further provides that the Commission shall be the exclusive owner of all facilities (with minor exceptions) for the production of fissionable materials; that all fissionable material produced shall become its property; that it shall allocate such materials for research and developmental activities, and shall license all transfer of source materials. The Commission is charged with the duty of producing atomic bombs, bomb parts, and other atomic military weapons at the direction of the President. Patents relating to fissionable materials must be filed with the Commission, the "just compensation" payable to the owners to be determined by a Patent Compensation Board designated by the Commission from among its employees. POSTWAR LEGISLATION The war power "is not limited to victories in the field. * * * It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress."[1285] Accordingly, the Supreme Court held in 1871 that it was within the competence of Congress to deduct from the period limited by statute for the bringing of an action the time during which plaintiff had been unable to prosecute his suit in consequence of the Civil War. This principle was given a much broader application after the first world war in Hamilton _v._ Kentucky Distilleries and Wine Co.,[1286] where the War Time Prohibition Act adopted after the signing of the Armistice was upheld as an appropriate measure for increasing war efficiency. It was conceded that the measure was valid when enacted, since the mere cessation of hostilities did not end the war or terminate the war powers of Congress. The plaintiff contended however that in October 1919, when the suit was brought, the war emergency had in fact passed, and that the law was therefore obsolete. Inasmuch as the treaty of peace had not yet been concluded and other war activities had not been brought to a close, the Court said it was "unable to conclude" that the act had ceased to be valid. But in 1924 it held upon the facts that we judicially know that the rent control law for the District of Columbia, which had previously been upheld,[1287] had ceased to operate because the emergency which justified it had come to an end.[1288] A similar issue was present after World War II in Woods _v._ Miller,[1289] where the Supreme Court reversed a decision of a lower court to the effect that the authority of Congress to regulate rents by virtue of the war power ended with the Presidential proclamation terminating hostilities on December 31, 1946. This decision was coupled with a warning that: "We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. There are no such implications in today's decision."[1290] In 1948, a sharply divided Court further ruled that the power which Congress has conferred upon the President to deport enemy aliens in time of a declared war was not exhausted when the shooting war stopped. Speaking for the majority of five, Justice Frankfurter declared: "It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilites [sic] do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come."[1291] Private Rights in Wartime ENEMY COUNTRY Although, broadly speaking, the constitutional provisions designed for the protection of individual rights are operative in war as well as in peace, the incidents of war repeatedly give rise to situations in which judicially enforceable constitutional restraints are inapplicable. In the first place persons in enemy territory are entirely beyond the reach of constitutional limitations. They are subject, in relation to the war powers of the National Government, to the laws of war as interpreted and applied by Congress and by the President as Commander in Chief. To the question: "What is the law which governs an army invading an enemy's country?" the Court gave the following answer in Dow _v._ Johnson:[1292] "It is not the civil law of the invaded country; it is not the civil law of the conquering country: it is military law,--the law of war,--and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty."[1293] THEATRE OF MILITARY OPERATIONS That substantially the same rule, resting on the same considerations, applies in the field of active military operations, was assumed by all members of the Court in Ex parte Milligan.[1294] There the Court held that the trial by a military commission of a civilian charged with acts of disloyalty committed in a part of the country which was remote from the theatre of military operations, and in which the civil courts were open and functioning, was invalid under the Fifth and Sixth Amendments. Although unanimous in holding that the military tribunal lacked jurisdiction to try the case, the Court divided, five-to-four, as to the grounds of the decision. The point on which the Justices differed was which department of the Government had authority to say with finality what regions lie within the theatre of military operation. Claiming this as a function of the courts, the majority held that the theatre of war did not embrace an area in which the civil courts were open and functioning.[1295] The minority argued that this was a question to be determined by Congress.[1296] All rejected the argument of the government that the President's determination was conclusive in the absence of restraining legislation. A similar result was reached in Duncan _v._ Kahanamoku[1297] where, upon an examination of the circumstances existing in Hawaii after Pearl Harbor, a divided Court found that the authority which Congress had granted to the Territorial Governor to declare martial law "in case of rebellion or invasion, or imminent danger thereof," did not warrant the trial of civilians by military tribunals. ENEMY PROPERTY The position of enemy property was dealt with by Chief Justice Marshall in the early case of Brown _v._ United States.[1298] Here it was held that the mere declaration of war by Congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the United States, but the right of Congress by further enactment to subject such property to confiscation was asserted in the most positive terms. Being an exercise of the war powers of the Government, such confiscation is not affected by the restrictions of the Fifth and Sixth Amendments. Since it has no relation to the personal guilt of the owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen of the United States. The whole doctrine of confiscation is built upon the foundation that it is an instrument of coercion, which, by depriving an enemy of property within the reach of his power, whether within his territory or without it, impairs his ability to resist the confiscating government, while at the same time it furnishes to that government means for carrying on the war. Any property which the enemy can use, either by actual appropriation, or by the exercise of control over the owner, no matter what his nationality, is a proper subject of confiscation. Congress may provide for immediate seizure of property which the President or his agent determines to be enemy property, leaving the question of enemy ownership to be settled later at the suit of a claimant. For these reasons the Confiscation Act of 1862,[1299] and the Trading with the Enemy Act of 1917 and amendments thereto, were held to be within the power of Congress to "make rules concerning captures on land and water."[1300] PRIZES OF WAR The power of Congress with respect to prizes is plenary; no one can have any interest in prizes captured except by permission of Congress.[1301] Nevertheless, since International Law is a part of our law, the Court will administer it so long as it has not been modified by treaty or by legislative or executive action. Thus, during the Civil War, the Court found that the Confiscation Act of 1861, and the Supplementary Act of 1863, which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize. It decided, therefore, that when a vessel was liable to condemnation under either law, the government was at liberty to proceed under the more stringent rules of International Law, with the result that the citizen would be deprived of the benefit of the protective provisions of the statute.[1302] Similarly, when Cuban ports were blockaded during the Spanish-American War, the Court held, over the vigorous dissent of three of its members, that the rule of International Law exempting unarmed fishing vessels from capture was applicable in the absence of any treaty provision, or other public act of the Government in relation to the subject.[1303] POLICE REGULATIONS; RENT CONTROL In enforcing the requirement of due process of law in its modern expanded sense of "reasonable law" the Court has recognized that a war emergency may justify legislation which would otherwise be an unconstitutional invasion of private rights. Shortly after the first world war, it sustained, by a narrow margin, a rent control law for the District of Columbia, which not merely limited the rents which might be charged but which also gave the existing tenants the right to continue in occupancy of their dwellings at their own option, provided they paid rent and performed other stipulated conditions. The Court, while conceding that ordinarily such legislation would transcend constitutional limitations, declared that "a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation. * * * A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change."[1304] During World War II an apartment house owner who complained that the rentals allowed by the Office of Price Administration did not afford a "fair return" on the property was told by the Court that, "a nation which can demand the lives of its men and women in the waging of * * * war is under no constitutional necessity of providing a system of price control * * * which will assure each landlord a 'fair return' on his property."[1305] Moreover, such rentals may be established without a prior hearing because "national security might not be able to afford the luxuries of litigation and the long delays which preliminary hearings traditionally have entailed. * * * Where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires."[1306] The more specific clauses of the Bill of Rights yield less readily, however, to the impact of a war emergency. In United States _v._ Cohen Grocery Company,[1307] the Court held that a statute which penalized the making of "'any unjust or unreasonable rate or charge in handling * * * any necessaries,'" was void on the ground that it set up no "ascertainable standard of guilt" and so was "repugnant to the Fifth and Sixth Amendments * * * which require due process of law and that persons accused of crime shall be adequately informed of the nature and cause of the accusation."[1308] PERSONAL LIBERTY IN WARTIME That the power of Congress to punish seditious utterances in time of war is limited by the First Amendment was assumed by the Supreme Court in the series of cases[1309] in which it affirmed convictions for violation of the Espionage Act of 1917.[1310] But in the famous opinion of Justice Holmes in Schenck _v._ United States,[1311] it held that: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."[1312] A State also has power to make it unlawful to advocate that citizens of the State should not assist in prosecuting a war against public enemies of the United States.[1313] The most drastic restraint of personal liberty imposed during World War II was the detention and relocation of the Japanese residents of the Western States, including those who were native-born citizens of the United States. When various phases of this program were challenged, the Court held that in order to prevent espionage and sabotage, the freedom of movement of such persons could be restricted by a curfew order,[1314] even by a regulation excluding them from a defined area,[1315] but that a citizen of Japanese ancestry whose loyalty was concerned could not be detained against her will in a relocation camp.[1316] ALIEN ENEMIES The status of alien enemies was first considered in connection with the passage of the Alien Act of 1798,[1317] whereby the President was authorized to deport any alien or to license him to reside within the United States at any place to be designated by the President. Critics of the measure conceded its constitutionality so far as enemy aliens were concerned, because, as Madison wrote, "The Constitution having expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies."[1318] The substance of this early law was reenacted during the first world war. Under it the President is authorized, in time of war, to prescribe "the manner and degree of the restraint to which [alien enemies] shall be subject and in what cases, and upon what security their residence shall be permitted," or to provide for their removal from the United States.[1319] This measure was held valid in Ludecke _v._ Watkins.[1320] EMINENT DOMAIN An often-cited dictum uttered shortly after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.[1321] In United States _v._ Russell,[1322] decided following the Civil War, a similar conclusion was based squarely on the Fifth Amendment, although the case did not necessarily involve the point. Finally, in United States _v._ Pacific Railroad,[1323] also a Civil War case, the Court held that the United States was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens which was taken for the use of the national forces. "In such cases," the Court said, "it has been the practice of the government to make compensation for the property taken. * * *, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses."[1324] Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of the Civil War, had voiced the opinion that the Fifth Amendment embodied the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.[1325] In determining what constitutes just compensation for property requisitioned for war purposes during World War II, the Court has assumed that the Fifth Amendment is applicable to such takings.[1326] Clause 15. _The Congress shall have Power_ * * * To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. Clause 16. _The Congress shall have Power_ * * * To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. The Militia Clauses CALLING OUT THE MILITIA The States as well as Congress may prescribe penalties for failure to obey the President's call of the militia. They also have a concurrent power to aid the National Government by calls under their own authority, and in emergencies may use the militia to put down armed insurrection.[1327] The Federal Government may call out the militia in case of civil war; its authority to suppress rebellion is found in the power to suppress insurrection and to carry on war.[1328] The act of February 28, 1795,[1329] which delegated to the President the power to call out the militia, was held constitutional.[1330] A militiaman who refused to obey such a call was not "employed in the service of the United States so as to be subject to the article of war," but was liable to be tried for disobedience of the act of 1795.[1331] REGULATION OF THE MILITIA The power of Congress over the militia "being unlimited, except in the two particulars of officering and training them, * * *, it may be exercised to any extent that may be deemed necessary by Congress. * * * The power of the State government to legislate on the same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the General Government, * * *"[1332] Under the National Defense Act of 1916,[1333] the militia, which hitherto had been an almost purely State institution, was brought under the control of the National Government. The term "militia of the United States" was defined to comprehend "all able-bodied male citizens of the United States and all other able-bodied males who have * * * declared their intention to become citizens of the United States," between the ages of eighteen and forty-five. The act reorganized the National Guard, determined its size in proportion to the population of the several States, required that all enlistments be for "three years in service and three years in reserve," limited the appointment of officers to those who "shall have successfully passed such tests as to * * * physical, moral and professional fitness as the President shall prescribe," and authorized the President in certain emergencies to "draft into the military service of the United States to serve therein for the period of the war unless sooner discharged, any and all members of the National Guard and National Guard Reserve," who thereupon should "stand discharged from the militia." Clause 17. _Congress shall have power_ * * * To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And The Seat of Government The jurisdiction of the United States over the District of Columbia vested on the first Monday of December, 1800.[1334] By the act of February 27, 1801,[1335] the District was divided into two counties and in the following year the city of Washington was erected into a municipality.[1336] The present form of government dates from 1876; all legislative powers with respect to District affairs are retained by Congress, while an executive board of three commissioners vested with ordinance powers is appointed by the President.[1337] As a municipal corporation, the District has the legal capacity to sue and be sued.[1338] But the District Commissioners are merely administrative officers, having only the ministerial powers given them by statute; accordingly they were found to have no power to submit a claim against the District to arbitration.[1339] NATURE AND EXTENT OF RIGHTS CEDED TO UNITED STATES In ceding the territory which became the District of Columbia, both Maryland and Virginia provided that the United States should not acquire any right of property in the soil except by transfer by the individual owner. This proviso was held not to prevent the Federal Government from exercising the power of eminent domain within the District.[1340] Under the agreement made between the original proprietors of the land on which the city of Washington was laid out, and the Commissioners appointed by the President to survey, define and locate the district for the seat of government, the United States became the owner in fee of the streets of the city although the trustees never carried out their agreement to convey them.[1341] Both the right of dominion and of property of navigable waters and of the soil under them in the District, which originally had been granted by Charles I, King of England to the Lord Proprietary of Maryland, and to which Maryland succeeded upon the American Revolution, became vested in the United States by the cession from Maryland.[1342] RETROCESSION OF ALEXANDRIA COUNTY Originally the District of Columbia embraced the maximum area permitted by the Constitution. In 1846, however, Congress authorized a referendum on the question of retroceding Alexandria County to Virginia, and declared that jurisdiction should be relinquished to that State if a majority of the voters in the county voted in favor of the change. The proposal was approved, whereupon, without any further action by Congress, Virginia declared the county annexed and resumed full jurisdiction over it. Thirty years later, in a suit to recover taxes paid to the State, the Supreme Court called the retrocession "a violation of the Constitution" but held that since Congress had recognized the transfer as a settled fact, a resident of the county was estopped from challenging it.[1343] CONTINUANCE OF STATE LAWS Under the act of July 16, 1790,[1344] which provided for the establishment of the seat of government, State laws were continued in operation until Congress created a government for the District. The Supreme Court intimated that this was "perhaps, only declaratory of a principle which would have been in full operation without such declaration."[1345] In 1801 Congress declared that the laws of Virginia and Maryland "as they now exist, shall be and continue in force" in the respective portions of the District ceded by those States.[1346] The only effect of the cession upon individuals was to terminate their State citizenship and the jurisdiction of the State governments over them;[1347] contract obligations were not affected,[1348] and liens on property for debt were continued.[1349] STATUS OF THE DISTRICT TODAY Chief Justice Marshall ruled in the early case of Hepburn _v._ Ellzey[1350] that the District of Columbia is not a State within the meaning of the diversity of citizenship clause of article III. This view was consistently adhered to for nearly a century and a half in the interpretation of later acts of Congress regulating the jurisdiction of federal courts.[1351] In 1940, however, Congress expressly authorized those courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia and citizens of a State. By a five-to-four decision that statute was held constitutional, but the Justices who voted to sustain it were not in agreement as to the grounds of the decision.[1352] Three found it to be an appropriate exercise of the power of Congress to legislate for the District of Columbia without reference to article III.[1353] Six members of the Court rejected this theory, but two of the six joined in upholding the act on another ground which seven of their brethren considered untenable,--namely, that Hepburn _v._ Ellzey was erroneously decided and that the District of Columbia should be deemed to be a "State" within the meaning of article III, section 2.[1354] It is not disputed that the District is a part of "the United States," and that its residents are entitled to the privilege of trial by jury, whether in civil or criminal cases,[1355] and of presentment by a grand jury.[1356] Legislation which is restrictive of the rights of liberty and property in the District must find justification in facts adequate to support like legislation by a State in the exercise of its police power.[1357] LEGISLATIVE POWER OVER DISTRICT OF COLUMBIA Congress possesses over the District of Columbia the blended powers of a local and national legislature.[1358] Even when legislating for the District, Congress remains the legislature of the Union, with the result that it may give its enactments nation-wide operations so far as is "necessary and proper" in order to make them locally effective. As was pointed out in Cohens _v._ Virginia,[1359] if a felon escapes from the State in which the crime was committed, the government of such State cannot pursue him into another State and there apprehend him, "but must demand him from the executive power of that other State." On the other hand, a felon escaping from the District of Columbia or any other place subject to the exclusive power of Congress, may be apprehended by the National Government anywhere in the United States. "And the reason," declared Chief Justice Marshall, "is, that Congress is not a local legislature, but exercises this particular power, [of exclusive legislation], like all its other powers, in its high character, as the legislature of the Union."[1360] TAXATION IN THE DISTRICT Persons and property within the District of Columbia are subject to taxation by Congress under both the first and seventeenth clauses of this section. A general tax levied throughout the United States may be applied to the District of Columbia upon the same conditions as elsewhere;--e.g., if a direct tax, it must be levied in proportion to the census.[1361] But in laying taxes for District purposes only, "Congress, like any State legislature unrestricted by constitutional provisions, may its discretion wholly exempt certain classes of property from taxation, or may tax them at a lower rate than other property."[1362] It is no impediment to the exercise of either power that residents of the District lack the suffrage and have politically no voice in the expenditure of the money raised by taxation.[1363] DELEGATION OF LEGISLATIVE POWER TO MUNICIPAL OFFICERS Congress may delegate to municipal authorities legislative functions which are strictly local in character.[1364] It may confer upon them the power to improve or repair streets, to assess adjacent property therefor,[1365] and to regulate public markets.[1366] It may confirm assessments previously made by the District government without authority of law.[1367] But in Stoutenburgh _v._ Hennick,[1368] the Court held that Congress would not, and did not intend to, delegate to the District the power to impose a license tax on commercial agents who offered merchandise for sale by sample, since such a license amounted to a regulation of interstate commerce. COURTS OF THE DISTRICT In its capacity as a local legislature Congress may create courts for the District of Columbia and may confer upon them powers and duties which lie outside the judicial power vested in "constitutional" courts. On appeal from an order of the District Public Utilities Commission, a court for the District of Columbia may be empowered to modify valuations, rates and regulations established by the Commission and to make such orders as in its judgment the Commission should have made. But inasmuch as the issuance of such orders is a legislative as distinguished from a judicial function, the provision for an appeal from them to the Supreme Court was held unconstitutional.[1369] Despite the fact that Congress, acting under this clause, imposed nonjudicial duties upon the Supreme Court and the Court of Appeals for the District of Columbia, those tribunals were held to be constitutional courts, established under article III, with the result that the compensation of the judges thereof may not be diminished during their continuance in office.[1370] Since the courts established for the District are courts of the United States, their judgments stand upon the same footing, so far as concerns the obligations created by them, as domestic judgments of the States, wherever rendered and wherever sought to be enforced.[1371] Authority Over Places Purchased "PLACES" This clause has been broadly construed to cover all structures necessary for carrying on the business of the National Government.[1372] It includes post offices,[1373] a hospital and a hotel located in a national park,[1374] and locks and dams for the improvement of navigation.[1375] But it does not cover lands acquired for forests, parks, ranges, wild life sanctuaries or flood control.[1376] Nevertheless the Supreme Court has held that a State may convey, and that Congress may accept, either exclusive or qualified jurisdiction over property acquired within the geographical limits of a State, for purposes other than those enumerated in Clause 17.[1377] After exclusive jurisdiction over lands within a State has been ceded to the United States, Congress alone has the power to punish crimes committed within the ceded territory.[1378] Private property located thereon is not subject to taxation by the State,[1379] nor can State statutes enacted subsequent to the transfer have any operation therein.[1380] But the local laws in force at the date of cession which are protective of private rights continue in force until abrogated by Congress.[1381] DURATION OF FEDERAL JURISDICTION A State may qualify its cession of territory by a condition that jurisdiction shall be retained by the United States only so long as the place is used for specified purposes.[1382] Such a provision operates prospectively and does not except from the grant that portion of a described tract which is then used as a railroad right of way.[1383] In 1892, the Court upheld the jurisdiction of the United States to try a person charged with murder on a military reservation, over the objection that the State had ceded jurisdiction only over such portions of the area as were used for military purposes, and that the particular place on which the murder was committed was used solely for farming. The Court held that the character and purpose of the occupation having been officially established by the political department of the government, it was not open to the Court to inquire into the actual uses to which any portion of the area was temporarily put.[1384] A few years later, however, it ruled that the lease to a city, for use as a market, of a portion of an area which had been ceded to the United States for a particular purpose, suspended the exclusive jurisdiction of the United States.[1385] Recently the question arose whether the United States retains jurisdiction over a place which was ceded to it unconditionally after it has abandoned the use of the property for governmental purposes and entered into a contract for the sale thereof to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the Supreme Court upheld its right to do so. The majority assumed that "the Government's unrestricted transfer of property to nonfederal hands is a relinquishment of the exclusive legislative power."[1386] In separate concurring opinions Chief Justice Stone and Justice Frankfurter reserved judgment on the question of territorial jurisdiction.[1387] RESERVATION OF JURISDICTION BY STATES For more than a century the Supreme Court kept alive, by repeated dicta,[1388] the doubt expressed by Justice Story "whether Congress are by the terms of the Constitution, at liberty to purchase lands for forts, dockyards, etc., with the consent of a State legislature, where such consent is so qualified that it will not justify the 'exclusive legislation' of Congress there. It may well be doubted if such consent be not utterly void."[1389] But when the issue was squarely presented in 1937, the Court ruled that where the United States purchases property within a State with the consent of the latter, it is valid for the State to convey, and for the United States to accept, "concurrent jurisdiction" over such land, the State reserving to itself the right to execute process "and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States."[1390] The holding logically renders the second half of Clause 17 superfluous. In a companion case, the Court ruled further that even if a general State statute purports to cede exclusive jurisdiction, such jurisdiction does not pass unless the United States accepts it.[1391] Clause 18. _The Congress shall have Power_ * * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. The Coefficient or Elastic Clause SCOPE OF INCIDENTAL POWERS That this clause is an enlargement, not a constriction, of the powers expressly granted to Congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those powers, was established by Marshall's classic opinion in McCulloch _v._ Maryland.[1392] "Let the end be legitimate," he wrote, "let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."[1393] Moreover, this provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments.[1394] OPERATION OF COEFFICIENT CLAUSE Practically every power of the National Government has been expanded in some degree by the coefficient clause. Under its authority Congress has adopted measures requisite to discharge the treaty obligations of the nation;[1395] it has organized the federal judicial system and has enacted a large body of law defining and punishing crimes. Effective control of the national economy has been made possible by the authority to regulate the internal commerce of a State to the extent necessary to protect and promote interstate commerce.[1396] Likewise the right of Congress to utilize all known and appropriate means for collecting the revenue, including the distraint of property for Federal taxes,[1397] and its power to acquire property needed for the operation of the government by the exercise of the power of eminent domain,[1398] have greatly extended the range of national power. But the widest application of the necessary and proper clause has occurred in the field of monetary and fiscal controls. Inasmuch as the various specific powers granted by article I, section 8, do not add up to a general legislative power over such matters, the Court has relied heavily upon this clause in sustaining the comprehensive control which Congress has asserted over this subject.[1399] DEFINITION AND PUNISHMENT OF CRIMES Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded.[1400] Illustrative of the offenses which have been punished under this power are the alteration of registered bonds;[1401] the bringing of counterfeit bonds into the country;[1402] conspiracy to injure prisoners in custody of a United States marshal;[1403] impersonation of a federal officer with intent to defraud;[1404] conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States;[1405] the receipt by government officials of contributions from government employees for political purposes;[1406] advocating, etc., the overthrow of the Government by force.[1407] Part I of Title 18 of the United States Code comprises more than 500 sections defining penal offenses against the United States. CHARTERING OF BANKS As an appropriate means for executing "the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies * * *" Congress may incorporate banks and kindred institutions.[1408] Moreover, it may confer upon them private powers which, standing alone, have no relation to the functions of the Federal Government, if those privileges are essential to the effective operation of such corporations.[1409] Where necessary to meet the competition of State banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business.[1410] The Court will not undertake to assess the relative importance of the public and private functions of a financial institution which Congress has seen fit to create. It sustained the act setting up the Federal Farm Loan Banks to provide funds for mortgage loans on agricultural land against the contention that the right of the Secretary of the Treasury, which he had not exercised, to use these banks as depositaries of public funds, was merely a pretext for chartering these banks for private purposes.[1411] CURRENCY REGULATIONS Reinforced by the necessary and proper clause, the powers "'to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the United States,' and 'to borrow money on the credit of the United States and to coin money and regulate the value thereof * * *'";[1412] have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of State banks;[1413] the issuance of treasury notes impressed with the quality of legal tender in payment of private debts[1414] and the abrogation of clauses in private contracts which called for payment in gold coin,[1415] were sustained as appropriate measures for carrying into effect some or all of the foregoing powers. POWER TO CHARTER CORPORATIONS In addition to the creation of banks, Congress has been held to have authority to charter a railroad corporation,[1416] or a corporation to construct an interstate bridge,[1417] as instrumentalities for promoting commerce among the States, and to create corporations to manufacture aircraft[1418] or merchant vessels[1419] as incidental to the war power. COURTS AND JUDICIAL PROCEEDINGS Inasmuch as the Constitution "delineated only the great outlines of the judicial power * * *, leaving the details to Congress, * * * The distribution and appropriate exercise of the judicial power must * * * be made by laws passed by Congress, * * *"[1420] As a necessary and proper provision for the exercise of the jurisdiction conferred by article III, section 2 Congress may direct the removal from a State to a federal court of a criminal prosecution against a federal officer for acts done under color of federal law,[1421] and may authorize the removal before trial of civil cases arising under the laws of the United States.[1422] It may prescribe the effect to be given to judicial proceedings of the federal courts,[1423] and may make all laws necessary for carrying into execution the judgments of federal courts.[1424] When a territory is admitted as a State, Congress may designate the Court to which the records of the territorial courts shall be transferred, and may prescribe the mode for enforcement and review of judgments rendered by those courts.[1425] In the exercise of other powers conferred by the Constitution, apart from article III, Congress may create legislative courts and "clothe them with functions deemed essential or helpful in carrying those powers into execution."[1426] SPECIAL ACTS CONCERNING CLAIMS This clause enables Congress to pass special laws to require other departments of the Government to prosecute or adjudicate particular claims, whether asserted by the Government itself or by private persons. In 1924,[1427] Congress adopted a Joint Resolution directing the President to cause suit to be instituted for the cancellation of certain oil leases alleged to have been obtained from the Government by fraud, and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. This resolution also authorized the appointment of special counsel to have charge of such litigation. Private acts providing for a review of an order for compensation under the Longshoreman's and Harbor Workers' Compensation Act,[1428] or conferring jurisdiction upon the Court of Claims to hear and determine certain claims of a contractor against the Government, in conformity with directions given by Congress, after that court had denied recovery on such claims, have been held constitutional.[1429] MARITIME LAW Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law which existed at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction.[1430] This power cannot be delegated to the States; hence acts of Congress which purported to make State Workmen's Compensation laws applicable to maritime cases were held unconstitutional.[1431] Section 9. Clause 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. Powers Denied to Congress GENERAL PURPOSE OF THE SECTION This section of the Constitution (containing eight clauses restricting or prohibiting legislation affecting the importation of slaves, the suspension of the writ of _habeas corpus_, the enactment of bills of attainder or _ex post facto_ laws, the levying of taxes on exports, the granting of preference to ports of one State over another, the granting of titles of nobility, etc.,) is devoted to restraints upon the power of Congress and of the National Government,[1432] and in no respect affects the States in the regulation of their domestic affairs.[1433] The above clause, which sanctioned the importation of slaves by the States for twenty years after the adoption of the Constitution, when considered with the section requiring escaped slaves to be returned to their masters (art. IV, § 1, cl. 3), was held by Chief Justice Taney in Scott _v._ Sanford,[1434] to show conclusively that such persons and their descendants were not embraced within the term "citizen" as used in the Constitution. Today is interesting only as an historical curiosity. Clause 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. HABEAS CORPUS Purpose of the Writ This section, which restricts only the Federal Government and not the States,[1435] is the only place in the Constitution where the writ of _habeas corpus_ is mentioned. The framers took for granted that the courts of the United States would be given jurisdiction to issue this, the greatest of the safeguards of personal liberty embodied in the common law, and the Judiciary Act of 1789[1436] provided for the issuance of the writ according to "the usages and principles of law." At common law the purpose of such a proceeding was to obtain the liberation of persons who were imprisoned without just cause.[1437] While the Supreme Court conceded at an early date that the authority of the federal courts to entertain petitions for _habeas corpus_ derived solely from acts of Congress,[1438] a narrow majority recently asserted the right to expand the scope of the writ by judicial interpretation and to sanction its use for a purpose unknown to the common law, i.e., to bring a prisoner into court to argue his own appeal. Speaking for the majority Justice Murphy declared that: "However, we do not conceive that a circuit court of appeals, in issuing a writ of _habeas corpus_ under § 262 of the Judicial Code, is necessarily confined to the precise forms of that writ in vogue at the common law or in the English judicial system. Section 262 says that the writ must be agreeable to the usages and principles of 'law,' a term which is unlimited by the common law or the English law. And since 'law' is not a static concept, but expands and develops as new problems arise, we do not believe that the forms of the _habeas corpus_ writ authorized by § 262 are only those recognized in this country in 1789, when the original Judiciary Act containing the substance of this section came into existence."[1439] Errors Which May Be Corrected on Habeas Corpus The writ of _habeas corpus_ provides a remedy for jurisdictional and constitutional errors at the trial without limit as to time.[1440] It may be used to correct errors of that order made by military as well as by civil courts.[1441] Under the common law and the Act 31 Car. II c. 2 (1679), where a person was detained pursuant to a conviction by a court having jurisdiction of the subject matter, _habeas corpus_ was available only if a want of jurisdiction appeared on the face of the record of the Court which convicted him. A showing in a return to a writ that the prisoner was held under final process based upon a judgment of a court of competent jurisdiction closed the inquiry.[1442] Under the Judiciary Act of 1789[1443] the same rule obtained.[1444] But by the act of February 5, 1867,[1445] Congress extended the writ to all persons restrained of their liberty in violation of the Constitution or a law or treaty of the United States, and required the Court to ascertain the facts and to "dispose of the party as law and justice require." This gave the prisoner a right to have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention. The Supreme Court has said that there is "no doubt of the authority of the Congress to thus liberalize the common law procedure on _habeas corpus_ * * *" .[1446] Habeas Corpus Not a Substitute for Appeal Since the writ of _habeas corpus_ is appellate in nature, Congress may confer jurisdiction to issue it upon the Supreme Court as well as upon the inferior federal courts.[1447] The proceeding may not, however, be used as a substitute for an appeal or writ of error.[1448] But if special circumstances make it advantageous to use this writ in aid of a just disposition of a cause pending on appeal it may be used for that purpose.[1449] Where facts dehors the record, which are not open to consideration upon appeal, are alleged to show a denial of constitutional rights, a judicial hearing must be granted to ascertain the truth or falsity of the allegations.[1450] Issuance of the Writ On application for a writ of _habeas corpus_, the Court may either issue the writ, and, on the return, dispose of the case, or it may waive the issuing of the writ and consider whether, upon the facts presented in the petition, the prisoner, if brought before it, could be discharged.[1451] The proceeding may not be used to secure an adjudication of a question which, if determined in the prisoner's favor, could not result in his immediate release.[1452] A discharge of a prisoner on _habeas corpus_ is granted only in the exercise of a sound judicial discretion.[1453] While the strict doctrine of _res judicata_ does not apply to this proceeding,[1454] the Court may, in its discretion, dismiss a petition for _habeas corpus_ where the ground on which it is sought had been alleged in a prior application, but the evidence to support it had been unjustifiably withheld for use on a second attempt if the first failed.[1455] Where the Government did not deny the allegation in a prisoner's fourth petition for _habeas corpus_, but sought dismissal of the proceedings on the ground that the prisoner had abused the writ, the prisoner was held to be entitled to a hearing to determine whether the charge of abusive use of the writ was well founded.[1456] Suspension of the Privilege A critical question under this section is who determines with finality whether the circumstances warrant suspension of the privilege of the writ. In England the writ may be suspended only by Act of Parliament,[1457] and in an early case Chief Justice Marshall asserted that the decision as to when public safety calls for this drastic action depends "on political considerations, on which the legislature is to decide."[1458] At the beginning of the Civil War Lincoln authorized the Commanding General of the Army of the United States to suspend the writ along any military line between Philadelphia and Washington.[1459] In Ex parte Merryman,[1460] Chief Justice Taney strongly denounced the President's action and reasserted the proposition that only Congress could suspend the writ. Attorney General Bates promptly challenged Taney's opinion. Noting that in Ex parte Bollman, Marshall did "not speak of suspending the _privilege_ of the writ, but of suspending the _powers vested in the Court_ by the act," he took the position that the constitutional provision was itself the equivalent of an Act of Parliament.[1461] Thereafter, by an express provision of the act of March 3, 1863, Congress declared, "That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of _habeas corpus_ in any case throughout the United States, or any part thereof."[1462] The validity of this statute was assumed in Ex parte Milligan,[1463] but a narrow majority of the Court declared that the suspension of the writ did not authorize the arrest of any one, but simply denied to one arrested the privilege of the writ in order to obtain his liberty.[1464] Clause 3. No Bill of Attainder or ex post facto Law shall be passed. BILLS OF ATTAINDER Historically, the term "bills of attainder" was applied to "such special acts of the legislature as inflict capital punishment upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings." An act which inflicted a milder degree of punishment was called a bill of pains and penalties.[1465] Within the meaning of the Constitution, however, bills of attainder include bills of pains and penalties.[1466] As interpreted by the Supreme Court, this clause prohibits all legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial * * *"[1467] Two acts of Congress--one which required attorneys practicing in the federal courts to take an oath that they had never given aid to persons engaged in hostility to the United States,[1468] and another which prohibited the payment of compensation to certain named government employees who have been charged with subversive activity,[1469]--have been held unconstitutional on the ground that they amounted to bills of attainder. EX POST FACTO LAWS Definition At the time the Constitution was adopted, many persons understood the terms _ex post facto_ laws, to "embrace all retrospective laws, or laws governing or controlling past transactions, whether * * * of a civil or a criminal nature."[1470] But in the early case of Calder _v._ Bull,[1471] the Supreme Court decided that the phrase, as used in the Constitution, applies only to penal and criminal statutes. But although it is inapplicable to retroactive legislation of any other kind,[1472] the constitutional prohibition may not be evaded by giving a civil form to a measure which is essentially criminal.[1473] Every law which makes criminal an act which was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an _ex post facto_ law within the prohibition of the Constitution.[1474] A prosecution under a temporary statute which was extended before the date originally set for its expiration does not offend this provision even though it is instituted subsequent to the extension of the statute's duration for a violation committed prior thereto.[1475] Since this provision has no application to crimes committed outside the jurisdiction of the United States against the laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is _ex post facto_ or not.[1476] What Constitutes Punishment An act of Congress which prescribed as a qualification for practice before the federal courts an oath that the attorney had not participated in the Rebellion was found unconstitutional since it operated as a punishment for past acts.[1477] But a statute which denied to polygamists the right to vote in a territorial election, was upheld even as applied to a person who had not practiced polygamy since the act was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter.[1478] A deportation law authorizing the Secretary of Labor to expel aliens for criminal acts committed before its passage is not _ex post facto_ since deportation is not a punishment.[1479] Likewise an act permitting the cancellation of naturalization certificates obtained by fraud prior to the passage of the law was held not to impose a punishment but simply to deprive the alien of his ill-gotten privileges.[1480] Change in Place or Mode of Trial A change of the place of trial of an alleged offense after its commission, is not an _ex post facto_ law. If no place of trial was provided when the offense was committed, Congress may designate the place of trial thereafter.[1481] A law which alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid,[1482] but a statute which simply enlarges the class of persons who may be competent to testify in criminal cases is not _ex post facto_ as applied to a prosecution for a crime committed prior to its passage.[1483] Clause 4. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. DIRECT TAXES The Hylton Case The crucial problem under this section is to distinguish "direct" from other taxes. In its opinion in Pollock _v._ Farmers' Loan and Trust Co., we find the Court declaring: "It is apparent * * * that the distinction between direct and indirect taxation was well understood by the framers of the Constitution and those who adopted it."[1484] Against this confident dictum may be set the following brief excerpt from Madison's Notes on the Convention: "Mr. King asked what was the precise meaning of _direct_ taxation? No one answered."[1485] The first case to come before the Court on this issue was Hylton _v._ United States,[1486] which was decided early in 1796. Congress had levied, according to the rule of uniformity, a specific tax upon all carriages, for the conveyance of persons, which shall be kept by, or for any person, for his own use, or to be let out for hire, or for the conveying of passengers. In a fictitious statement of facts, it was stipulated that the carriages involved in the case were kept exclusively for the personal use of the owner and not for hire. The principal argument for the constitutionality of the measure was made by Hamilton, who treated it as an "excise tax,"[1487] while Madison both on the floors of Congress and in correspondence attacked it as "direct" and so void, inasmuch as it was levied without apportionment.[1488] The Court, taking the position that the direct tax clause constituted in practical operation an exception to the general taxing powers of Congress, held that no tax ought to be classified as "direct" which could not be conveniently apportioned, and on this basis sustained the tax on carriages as one on their "use" and therefore an "excise." Moreover, each of the judges advanced the opinion that the direct tax clause should be restricted to capitation taxes and taxes on land, or that at most, it might cover a general tax on the aggregate or mass of things which generally pervade all the States, especially if an assessment should intervene; while Justice Paterson, who had been a member of the Federal Convention, testified to his recollection that the principal purpose of the provision had been to allay the fear of the Southern States lest their Negroes and lands should be subjected to a specific tax.[1489] From the Hylton to the Pollock Case The result of the Hylton case was not challenged until after the Civil War. A number of the taxes imposed to meet the demands of that war were assailed during the postwar period as direct taxes, but without result. The Court sustained successively as "excises" or "duties," a tax on an insurance company's receipts for premiums and assessments;[1490] a tax on the circulating notes of State banks,[1491] an inheritance tax on real estate,[1492] and finally a general tax on incomes.[1493] In the last case, the Court took pains to state that it regarded the term "direct taxes" as having acquired a definite and fixed meaning-to-wit, capitation taxes, and taxes on hand.[1494] Then, almost one hundred years after the Hylton case, the famous case of Pollock _v._ Farmers' Loan and Trust Company[1495] arose under the Income Tax Act of 1894.[1496] Undertaking to correct "a century of error" the Court held, by a vote of five-to-four, that a tax on income from property was a direct tax within the meaning of the Constitution and hence void because not apportioned according to the census. Restriction of the Pollock Decision The Pollock decision encouraged taxpayers to challenge the right of Congress to levy by the rule of uniformity numerous taxes which had always been reckoned to be excises. But the Court evinced a strong reluctance to extend the doctrine to such exactions. Purporting to distinguish taxes levied "because of ownership" or "upon property as such" from those laid upon "privileges,"[1497] it sustained as "excises" a tax on sales on business exchanges;[1498] a succession tax which was construed to fall on the recipients of the property transmitted, rather than on the estate of the decedent,[1499] and a tax on manufactured tobacco in the hands of a dealer, after an excise tax had been paid by the manufacturer.[1500] Again, in Thomas _v._ United States,[1501] the validity of a stamp tax on sales of stock certificates was sustained on the basis of a definition of "duties, imposts and excises." These terms, according to the Chief Justice, "were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like."[1502] On the same day it ruled, in Spreckels Sugar Refining Co. _v._ McClain,[1503] that an exaction denominated a special excise tax imposed on the business of refining sugar and measured by the gross receipts thereof, was in truth an excise and hence properly levied by the rule of uniformity. The lesson of Flint _v._ Stone Tracy Co.[1504] is the same. Here what was in form an income tax was sustained as a tax on the privilege of doing business as a corporation, the value of the privilege being measured by the income, including income from investments. Similarly, in Stanton _v._ Baltic Mining Co.[1505] a tax on the annual production of mines was held to be "independently of the effect of the operation of the Sixteenth Amendment * * * not a tax upon property as such because of its ownership, but a true excise levied on the results of the business of carrying on mining operations."[1506] A convincing demonstration of the extent to which the Pollock decision had been whittled down by the time the Sixteenth Amendment was adopted is found in Billings _v._ United States.[1507] In challenging an annual tax assessed for the year 1909 on the use of foreign built yachts--a levy not distinguishable in substance from the carriage tax involved in the Hylton case as construed by the Supreme Court-counsel did not even suggest that the tax should be classed as a direct tax. Instead, he based his argument that the exaction constituted a taking of property without due process of law upon the premise that it was an excise, and the Supreme Court disposed of the case upon the same assumption. In 1921 the Court cast aside the distinction drawn in Knowlton _v._ Moore between the right to transmit property on the one hand and the privilege of receiving it on the other, and sustained an estate tax as an excise. "Upon this point" wrote Justice Holmes for a unanimous court, "a page of history is worth a volume of logic."[1508] This proposition being established, the Court has had no difficulty in deciding that the inclusion in the computation of the estate tax of property held as joint tenants,[1509] or as tenants by the entirety,[1510] or the entire value of community property owned by husband and wife,[1511] or the proceeds of insurance upon the life of the decedent,[1512] did not amount to direct taxation of such property. Similarly it upheld a graduated tax on gifts as an excise, saying that it was "a tax laid only upon the exercise of a single one of those powers incident to ownership, the power to give the property owned to another."[1513] In vain did Justice Sutherland, speaking for himself and two associates, urge that "the right to give away one's property is as fundamental as the right to sell it or, indeed, to possess it."[1514] Miscellaneous The power of Congress to levy direct taxes is not confined to the States which are represented in that body. Such a tax may be levied in proportion to population in the District of Columbia.[1515] A penalty imposed for nonpayment of a direct tax is not a part of the tax itself and hence is not subject to the rule of apportionment. Accordingly, the Supreme Court sustained the penalty of fifty percent which Congress exacted for default in the payment of the direct tax on land in the aggregate amount of twenty million dollars which was levied and apportioned among the States during the Civil War.[1516] Clause 5. No Tax or Duty shall be laid on Articles exported from any State. TAXES ON EXPORTS This prohibition applies only to the imposition of duties on goods by reason of exportation.[1517] The word "export" signifies goods exported to a foreign country, not to an unincorporated territory of the United States.[1518] A general tax laid on all property alike, including that intended for export, is not within the prohibition, if it is not levied on goods in course of exportation nor because of their intended exportation.[1519] Where the sale to a commission merchant for a foreign consignee was consummated by delivery of the goods to an exporting carrier, the sale was held to be a step in the exportation and hence exempt from a general tax on sales of such commodity.[1520] The giving of a bond for exportation of distilled liquor is not the commencement of exportation so as to exempt from an excise tax spirits which were not exported pursuant to such bond.[1521] A tax on the income of a corporation derived from its export trade is not a tax on "articles exported" within the meaning of the Constitution.[1522] Stamp Taxes A stamp tax imposed on foreign bills of lading,[1523] charter parties,[1524] or marine insurance policies,[1525] is in effect a tax or duty upon exports, and so void; but an act requiring the stamping of all packages of tobacco intended for export in order to prevent fraud was held not to be forbidden as a tax on exports.[1526] Clause 6. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another. THE "NO PREFERENCE" CLAUSE The limitations imposed by this section were designed to prevent preferences as between ports on account of their location in different States. They do not forbid such discriminations as between individual ports. Acting under the commerce clause, Congress may do many things which benefit particular ports and which incidentally result to the disadvantage of other ports in the same or neighboring States. It may establish ports of entry, erect and operate lighthouses, improve rivers and harbors, and provide structures for the convenient and economical handling of traffic.[1527] A rate order of the Interstate Commerce Commission which allowed an additional charge to be made for ferrying traffic across the Mississippi to cities on the east bank of the river was sustained over the objection that it gave an unconstitutional preference to ports in Texas.[1528] Although there were a few early intimations that this clause was applicable to the States as well as to Congress,[1529] the Supreme Court declared emphatically in 1886 that State legislation was unaffected by it.[1530] After more than a century the Court confirmed, over the objection that this clause was offended, the power which the First Congress had exercised[1531] in sanctioning the continued supervision and regulation of pilots by the States.[1532] Alaska is not deemed to be a State within the meaning of this clause.[1533] Clause 7. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. APPROPRIATIONS This clause is a limitation upon the power of the executive department and does not restrict Congress in appropriating moneys in the Treasury.[1534] That body may recognize and pay a claim of an equitable, moral or honorary nature. Where it directs a specific sum to be paid to a certain person, neither the Secretary of the Treasury nor any court has discretion to determine whether the person is entitled to receive it.[1535] In making appropriations to pay claims arising out of the Civil War, the Court held that it was lawful to provide that certain persons, i.e., those who had aided the rebellion, should not be paid out of the funds made available by the general appropriation, but that such persons should seek relief from Congress.[1536] The Court has also recognized that Congress has a wide discretion as to the extent to which it shall prescribe details of expenditures for which it appropriates funds and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed by designated government agencies. Citing as an example the act of June 17, 1902[1537] where all moneys received from the sale and disposal of public lands in a large number of States and territories were set aside as a special fund to be expended under the direction of the Secretary of the Interior upon such projects as he determined to be practicable and advisable for the reclamation of arid and semi-arid lands within those States and territories, the Court declared: "The constitutionality of this delegation of authority has never been seriously questioned."[1538] PAYMENT OF CLAIMS No officer of the Federal Government is authorized to pay a debt due from the United States, whether reduced to judgment or not, without an appropriation for that purpose.[1539] After the Civil War, a number of controversies arose out of attempts by Congress to restrict the payment of the claims of persons who had aided the Rebellion, but had thereafter received a pardon from the President. The Supreme Court held that Congress could not prescribe the evidentiary effect of a pardon in a proceeding in the Court of Claims for property confiscated during the Civil War,[1540] but that where the confiscated property had been sold and the proceeds paid into the Treasury, a pardon did not of its own force authorize the restoration of such proceeds.[1541] It was within the competence of Congress to declare that the amounts due to persons thus pardoned should not be paid out of the Treasury and that no general appropriation should extend to their claims.[1542] Clause 8. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. In 1871 the Attorney General of the United States ruled that: "A minister of the United States abroad is not prohibited by the Constitution from rendering a friendly service to a foreign power, even that of negotiating a treaty for it, provided he does not become an officer of that power, but the acceptance of a formal commission, as minister plenipotentiary, creates an official relation between the individual thus commissioned and the government which in this way accredits him as its representative, which is prohibited by this clause of the Constitution."[1543] Section 10. No State Shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. Powers Denied to the States TREATIES, ALLIANCES OR CONFEDERATIONS At the time of the Civil War this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as having any legal existence.[1544] Today, its practical significance lies in the limitations which it implies upon the power of the States to deal with matters having a bearing upon international relations. In the early case of Holmes _v._ Jennison,[1545] Chief Justice Taney invoked it as a reason for holding that a State had no power to deliver up a fugitive from justice to a foreign State. Recently the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the Federal Government prompted the Court to hold that, since the oil under the three mile marginal belt along the California coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area.[1546] In Skiriotes _v._ Florida,[1547] the Court, on the other hand, ruled that this clause did not disable Florida from regulating the manner in which its own citizens may engage in sponge fishing outside its territorial waters. Speaking for a unanimous Court, Chief Justice Hughes declared: "When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances."[1548] BILLS OF CREDIT Within the sense of the Constitution, bills of credit signify a paper medium of exchange, intended to circulate between individuals; and between the Government and individuals, for the ordinary purposes of society. It is immaterial whether the quality of legal tender is imparted to such paper. Interest bearing certificates, in denominations not exceeding ten dollars, which were issued by loan offices established by the State of Missouri, and made receivable in payment of taxes or other moneys due to the State, and in payment of the fees and salaries of State officers, were held to be bills of credit whose issuance was banned by this section.[1549] The States are not forbidden, however, to issue coupons receivable for taxes,[1550] nor to execute instruments binding themselves to pay money at a future day for services rendered or money borrowed.[1551] Bills issued by State banks are not bills of credit;[1552] it is immaterial that the State is the sole stockholder of the bank,[1553] that the officers of the bank were elected by the State legislature,[1554] or that the capital of the bank was raised by the sale of State bonds.[1555] LEGAL TENDER Relying on this clause, which applies only to the States and not to the Federal Government,[1556] the Supreme Court has held that where the marshal of a State court received State bank notes in payment and discharge of an execution, the creditor was entitled to demand payment in gold or silver.[1557] Since, however, there is nothing in the Constitution which prohibits a bank depositor from consenting when he draws a check, that payment may be made by draft, a State law which provided that checks drawn on local banks should, at the option of the bank, be payable in exchange drafts was held valid.[1558] BILLS OF ATTAINDER Statutes passed after the Civil War with the intent and result of excluding persons who had aided the Confederacy from following certain callings, by the device of requiring them to take an oath that they had never given such aid, were held invalid as being bills of attainder, as well as _ex post facto_ laws.[1559] EX POST FACTO LAWS Scope of Provision This clause, like the cognate restriction imposed on the Federal Government by section 9, relates only to penal and criminal legislation and not to civil laws which affect private rights adversely.[1560] It is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts.[1561] Even though a law is _ex post facto_ and invalid as to crimes committed prior to its enactment, it is nonetheless valid as to subsequent offenses.[1562] If it mitigates the rigor of the law in force at the time the crime was committed,[1563] or if it merely penalizes the continuance of conduct which was lawfully begun before its passage, the statute is not _ex post facto_. Thus measures penalizing the failure of a railroad to cut drains through existing embankments,[1564] or making illegal the continued possession of intoxicating liquors which were lawfully acquired,[1565] have been held valid. Denial of Future Privileges to Past Offenders The right to practice a profession may be denied to one who was convicted of an offense before the statute was enacted if the offense may reasonably be regarded as a continuing disqualification for the profession. Without offending the Constitution, a statute making it a misdemeanor to practice medicine after conviction of a felony may be enforced against a person so convicted before the act was passed.[1566] But the test oath prescribed after the Civil War, whereby office holders, teachers, or preachers were required to swear that they had not participated in the Rebellion, were held invalid on the ground that it had no reasonable relation to fitness to perform official or professional duties, but rather was a punishment for past offenses.[1567] A similar oath required of suitors in the courts also was held void.[1568] Changes in Punishment Statutes which changed an indeterminate sentence law to require a judge to impose the maximum sentence, whereas formerly he could impose a sentence between the minimum and maximum;[1569] abolished a rule which prevented a subsequent conviction of first-degree murder after a jury had found the accused guilty in the second-degree by a verdict which had been set aside;[1570] required criminals sentenced to death to be kept thereafter in solitary confinement,[1571] or allowed a warden to fix, within limits of one week, and keep secret the time of execution,[1572] were held to be _ex post facto_ as applied to offenses committed prior to their enactment. But laws providing heavier penalties for new crimes thereafter committed by habitual criminals;[1573] changing the punishment from hanging to electrocution, fixing the place therefor in the penitentiary, and permitting the presence of a greater number of invited witnesses;[1574] or providing for close confinement of six to nine months in the penitentiary, in lieu of three to six months in jail prior to execution, and substituting the warden for the sheriff as hangman, have been sustained.[1575] Changes in Procedure An accused person does not have a right to be tried in all respects in accordance with the law in force when the crime charged was committed.[1576] The mode of procedure may be changed so long as the substantial rights of the accused are not curtailed.[1577] Laws shifting the place of trial from one county to another,[1578] increasing the number of appellate judges and dividing the appellate court into divisions,[1579] granting a right of appeal to the State,[1580] changing the method of selecting and summoning jurors,[1581] making separate trials for persons jointly indicted a matter of discretion for the trial court rather than a matter of right,[1582] and allowing a comparison of handwriting experts[1583] have been sustained over the objection that they were _ex post facto_. The contrary conclusion was reached with respect to the application to felonies committed before a Territory was admitted to the Union, of the provision in the State constitution which permitted the trial of criminal cases by a jury of eight persons, instead of the common law jury of twelve which was guaranteed by the Sixth Amendment during the period of territorial government.[1584] OBLIGATION OF CONTRACTS Definition of Terms "Law."--The term comprises statutes, constitutional provisions,[1585] municipal ordinances,[1586] and administrative regulations having the force and operation of statutes.[1587] How is it as to judicial decisions? Not only does the abstract principle of the separation of powers forbid the idea that the courts "make" law, but the word "pass" in the above clause seems to confine it to the formal and acknowledged methods of exercise of the law-making function. Accordingly, the Court has frequently said that the clause does not cover judicial decisions, however erroneous, or whatever their effect on existing contract rights.[1588] Nevertheless, there are important exceptions to this rule which are hereinafter set forth. Status of Judicial Decisions.--Also, while the highest State court usually has final authority in determining the construction as well as the validity of contracts entered into under the laws of the State, and the national courts will be bound by their decision of such matters, nevertheless, for reasons which are fairly obvious, this rule does not hold when the contract is one whose obligation is alleged to have been impaired by State law.[1589] Otherwise, the challenged State authority could be vindicated through the simple device of a modification or outright nullification by the State court of the contract rights in issue. Likewise, the highest State court usually has final authority in construing State statutes and determining their validity in relation to the State constitution. But this rule too has had to bend to some extent to the Supreme Court's interpretation of the obligation of contracts clause.[1590] Suppose the following situation: (1) a municipality, acting under authority conferred by a State statute, has issued bonds in aid of a railway company; (2) the validity of this statute has been sustained by the highest State court; (3) later the State legislature passes an act to repeal certain taxes to meet the bonds; (4) it is sustained in doing so by a decision of the highest State court holding that the statute authorizing the bonds was unconstitutional _ab initio_. In such a case the Supreme Court would take an appeal from the State court and would reverse the latter's decision of unconstitutionally because of its effect in rendering operative the act to repeal the tax.[1591] Suppose further, however, that the State court has reversed itself on the question of the constitutionality of the bonds in a suit by a creditor for payment without there having been an act of repeal. In this situation, as the cases stand today, the Supreme Court will still afford relief if the case is one between citizens of different States, which reaches it via a lower federal court.[1592] This is because in cases of this nature the Court formerly felt free to determine questions of fundamental justice for itself. Indeed, in such a case, the Court has apparently in the past regarded itself as free to pass upon the constitutionality of the State law authorizing the bonds even though there has been no prior decision by the highest State court sustaining them, the idea being that contracts entered into simply on the faith of the _presumed_ constitutionality of a State statute are entitled to this protection.[1593] In other words, in cases of which it has jurisdiction because of diversity of citizenship, the Court has held that the obligation of contracts is capable of impairment by subsequent judicial decisions no less than by subsequent statutes and that it is able to prevent such impairment. In cases, on the other hand, of which it obtains jurisdiction only on the constitutional ground, and by appeal from a State court, it has always adhered in terms to the doctrine that the word "laws" as used in article I, section 10, does not comprehend judicial decisions. Yet even in these cases, it will intervene to protect contracts entered into on the faith of existing decisions from an impairment which is the direct result of a reversal of such decisions, but there must be in the offing, as it were, a statute of some kind--one possibly many years older than the contract rights involved--on which to pin its decision.[1594] In 1922 Congress, through an amendment to the Judicial Code, endeavored to extend the reviewing power of the Supreme Court to suits involving "'* * * the validity of a contract wherein it is claimed that a change in the rule of law or construction of statutes by the highest court of a State applicable to such contract would be repugnant to the Constitution of the United States * * *'" This appeared to be an invitation to the Court to say frankly that the obligation of a contract can be impaired as well by a subsequent decision as by a subsequent statute. The Court, however, declined the invitation in an opinion by Chief Justice Taft which reviewed many of the cases covered in the preceding paragraphs. Dealing with the Gelpcke and adherent decisions, Chief Justice Taft said: "These cases were not writs of error to the Supreme Court of a State. They were appeals or writs of error to federal courts where recovery was sought upon municipal or county bonds or some other form of contracts, the validity of which had been sustained by decisions of the Supreme Court of a State prior to their execution, and had been denied by the same court after their issue or making. In such cases the federal courts exercising jurisdiction between citizens of different States held themselves free to decide what the State law was, and to enforce it as laid down by the State Supreme Court before the contracts were made rather than in later decisions. They did not base this conclusion on Article I, § 10, of the Federal Constitution, but on the State law as they determined it, which, in diverse citizenship cases, under the third Article of the Federal Constitution they were empowered to do. Burgess _v._ Seligman, 107 U.S. 20 (1883)."[1595] While doubtless this was an available explanation in 1924, the decision in 1938 in Erie Railroad Co. _v._ Tompkins, 304 U.S. 64, so cuts down the power of the federal courts to decide diversity of citizenship cases according to their own notions of "general principles of common law" as to raise the question whether the Court will not be required eventually to put Gelpcke and its companions and descendants squarely on the obligation of contracts clause, or else abandon them. "Obligation."--A contract is analyzable into two elements: the _agreement_, which comes from the parties, and the _obligation_ which comes from the law and makes the agreement binding on the parties. The concept of obligation is an importation from the Civil Law and its appearance in the contracts clause is supposed to have been due to James Wilson, a graduate of Scottish universities and a Civilian. Actually the term as used in the contracts clause has been rendered more or less superfluous by the doctrine that the law in force when a contract is made enters into and comprises a part of the contract itself.[1596] Hence the Court sometimes recognizes the term in its decisions applying the clause, sometimes ignores it. In Sturges _v._ Crowninshield,[1597] decided in 1819, Marshall defines "obligation of contract" as "the law which binds the parties to perform their agreement"; but a little later the same year he sets forth the points presented for consideration in Trustees of Dartmouth College _v._ Woodward[1598] to be: "1. Is this contract protected by the Constitution of the United States? 2. Is it impaired by the acts under which the defendant holds?"[1599] The word "obligation" undoubtedly does carry the implication that the Constitution was intended to protect only _executory_ contracts--i.e., contracts still awaiting performance; but as is indicated in a moment, this implication was early rejected for a certain class of contracts, with immensely important result for the clause. "Impair."--"The obligations of a contract," says Chief Justice Hughes for the Court in Home Building and Loan Association _v._ Blaisdell,[1600] "are impaired by a law which renders them invalid, or releases or extinguishes them * * * and impairment, * * *, has been predicated of laws which without destroying contracts derogate from substantial contractual rights."[1601] But he straight-away adds: "Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worth while,--a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of State power has had progressive recognition in the decisions of this Court."[1602] In short, the law from which the obligation stems must be understood to include Constitutional Law and, moreover, a "progressive" Constitutional Law.[1603] "Contracts," Extended to Cover Public Contracts.--Throughout the first century of government under the Constitution, according to Benjamin F. Wright, the contract clause had been considered in almost forty per cent of all cases involving the validity of State legislation, and of these the vast proportion involved legislative grants of one type or other, the most important category being charters of incorporation.[1604] Nor does this numerical prominence of such grants in the cases overrate their relative importance from the point of view of public interest. The question consequently arises whether the clause was intended to be applied solely in protection of private contracts, or in the protection also of public grants or, more broadly, in protection of public contracts, in short, those to which a State is party? Writing late in life, Madison explained the clause by allusion to what had occurred "in the internal administration of the States," in the years immediately preceding the Constitutional Convention, in regard to private debts. "A violation of contracts," said he, "had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, and installment laws, and the occlusions of the courts of justice."[1605] He had, in fact, written to the same effect in The Federalist, while the adoption of the Constitution was pending.[1606] The broader view of the intended purpose of the clause is, nevertheless, not without considerable support. For one thing, the clause departs from the comparable provision in the Northwest Ordinance (1787) in two respects: First, in the _presence_ of the word "obligation"; secondly, in the _absence_ of the word "private"; and there is good reason for believing that Wilson may have been responsible for both alterations, inasmuch as two years earlier he had denounced a current proposal to repeal the Bank of North America's Pennsylvania charter, in the following words: "If the act for incorporating the subscribers to the Bank of North America shall be repealed in this manner, a precedent will be established for repealing, in the same manner, every other legislative charter in Pennsylvania. A pretence, as specious as any that can be alleged on this occasion, will never be wanting on any future occasion. Those acts of the State, which have hitherto been considered as the sure anchors of privilege and of property, will become the sport of every varying gust of politics, and will float wildly backwards and forwards on the irregular and impetuous tides of party and faction."[1607] Furthermore, in its first important constitutional case, that of Chisholm _v._ Georgia,[1608] the Court ruled that its original jurisdiction extended to an action in assumpsit brought by a citizen of South Carolina against the State of Georgia. This construction of the federal judicial power was, to be sure, promptly repealed by the Eleventh Amendment, but without affecting the implication that the contracts protected by the Constitution included public contracts. One important source of this diversity of opinion is to be found in that ever welling spring of constitutional doctrine in early days, the prevalence of Natural Law notions and the resulting vague significance of the term "law." In Sturges _v._ Crowninshield, as we saw, Marshall defined the _obligation of contracts_ as "the law which binds the parties to perform their undertaking." Whence, however, comes this law? If it comes from the State alone, which Marshall was later to deny even as to private contracts,[1609] then it is hardly possible to hold that the States' own contracts are covered by the clause, which manifestly does not _create_ an obligation for contracts but only protects such obligation as already exists. But if, on the other hand, the law furnishing the obligation of contracts comprises Natural Law and kindred principles, as well as law which springs from State authority, then, inasmuch as the State itself is presumably bound by such principles, the State's own obligations, so far as harmonious with them, are covered by the clause. Fletcher _v._ Peck Fletcher _v._ Peck,[1610] which was decided in 1810, has the double claim to fame that it was the first case in which the Supreme Court held a State enactment to be in conflict with the Constitution,[1611] and also the first case to hold that the contracts clause protected public grants. By an act passed on January 7, 1795, the Georgia Legislature directed the sale to four land companies of public lands comprising most of what are now the States of Alabama and Mississippi. As soon became known, the passage of the measure had been secured by open and wholesale bribery. So when a new legislature took over in the winter of 1795-1796, almost its first act was to revoke the sale made the previous year. Meantime, however, the land companies had disposed of several millions of acres of their holdings to speculators and prospective settlers, and following the rescinding act some of these took counsel with Alexander Hamilton as to their rights. In an opinion which was undoubtedly known to the Court when it decided Fletcher _v._ Peck, Hamilton characterized the repeal as contravening "the first principles of natural justice and social policy," especially so far as it was made, "to the prejudice * * * of third persons * * * innocent of the alleged fraud or corruption; * * * [Moreover, he added,] the Constitution of the United States, article first, section tenth, declares that no State shall pass a law impairing the obligations of contract. This must be equivalent to saying no State shall pass a law revoking, invalidating, or altering a contract. Every grant from one to another, whether the grantor be a State or an individual, is virtually a contract that the grantee shall hold and enjoy the thing granted against the grantor, and his representatives. It, therefore, appears to me that taking the terms of the Constitution in their large sense, and giving them effect according to the general spirit and policy of the provisions, the revocation of the grant by the act of the legislature of Georgia may justly be considered as contrary to the Constitution of the United States, and, therefore null. And that the courts of the United States, in cases within their jurisdiction, will be likely to pronounce it so."[1612] In the debate to which the "Yazoo Land Frauds," as they were contemporaneously known, gave rise in Congress, Hamilton's views were quoted frequently. So far as it invokes the obligation of contracts clause, Marshall's opinion in Fletcher _v._ Peck performs two creative acts. He recognizes that an obligatory contract is one still to be performed--in other words, is an executory contract; also that a grant of land is an executed contract--a conveyance. But, he asserts, every grant is attended by "an implied contract" on the part of the grantor not to claim again the thing granted. Thus, grants are brought within the category of contracts having continuing obligation and so within article I, § 10. But the question still remained of the nature of this obligation. Marshall's answer to this can only be inferred from his statement at the end of his opinion. The State of Georgia, he says, "was restrained" from the passing of the rescinding act "either by general principles which are common to our free institutions, or by particular provisions of the Constitution of the United States."[1613] New Jersey _v._ Wilson The protection thus thrown about land grants was presently extended, in the case of New Jersey _v._ Wilson,[1614] to a grant of immunity from taxation which the State of New Jersey had accorded certain Indian lands; and several years after that, in the Dartmouth College Case,[1615] to the charter privileges of an eleemosynary corporation. Corporate Charters, Different Ways of Regarding There are three ways in which the charter of a corporation may be regarded. In the first place, it may be thought of simply as a license terminable at will by the State, like a liquor-seller's license or an auctioneer's license, but affording the incorporators, so long as it remains in force, the privileges and advantages of doing business in the form of a corporation. Nowadays, indeed, when corporate charters are usually issued to all legally qualified applicants by an administrative officer who acts under a general statute, this would probably seem to be the natural way of regarding them were it not for the Dartmouth College decision. But in 1819 charters were granted directly by the State legislatures in the form of special acts, and there were very few profit-taking corporations in the country.[1616] The later extension of the benefits of the Dartmouth College decision to corporations organized under general law took place without discussion. Secondly, a corporate charter may be regarded as a franchise constituting a vested or property interest in the hands of the holders, and therefore as forfeitable only for abuse or in accordance with its own terms. This is the way in which some of the early State courts did regard them at the outset.[1617] It is also the way in which Blackstone regards them in relation to the royal prerogative, although not in relation to the sovereignty of Parliament; and the same point of view finds expression in Story's concurring opinion in Dartmouth College _v._ Woodward, as it did also in Webster's argument in that case.[1618] The Dartmouth College Case The third view is the one formulated by Chief Justice Marshall in his controlling opinion in Trustees of Dartmouth College _v._ Woodward.[1619] This is that the charter of Dartmouth College, a purely private institution, was the outcome and partial record of a contract between the donors of the college, on the one hand, and the British Crown, on the other, which contract still continued in force between the State of New Hampshire, as the successor to the Crown and Government of Great Britain, and the trustees, as successors to the donors. The charter, in other words, was not simply a grant--rather it was the documentary record of a still existent agreement between still existent parties.[1620] Taking this view, which he developed with great ingenuity and persuasiveness, Marshall was able to appeal to the obligation of contracts clause directly, and without further use of his fiction in Fletcher _v._ Peck of an executory contract accompanying the grant. A difficulty still remained, however, in the requirement that a contract must, before it can have obligation, import consideration, that is to say, must be shown not to have been entirely gratuitous on either side. Nor was the consideration which induced the Crown to grant a charter to Dartmouth College a merely speculative one. It consisted of the donations of the donors to the important public interest of education. Fortunately or unfortunately, in dealing with this phase of the case, Marshall used more sweeping terms than were needful. "The objects for which a corporation is created," he wrote, "are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consideration, and in most cases, the sole consideration of the grant." In other words, the simple fact of the charter having been granted imports consideration from the point of view of the State.[1621] With this doctrine before it, the Court in Providence Bank _v._ Billings,[1622] and again in Charles River Bridge Company _v._ Warren Bridge Company,[1623] admitted, without discussion of the point, the applicability of the Dartmouth College decision to purely business concerns. Classes of Cases Under the Clause The cases just reviewed produce two principal lines of decisions stemming from the obligation of contracts clause: first, public grants; second, private executory contracts. The chief category of the first line of cases consists, in turn, of those involving corporate privileges, both those granted directly by the States and those granted by municipalities by virtue of authority conferred upon them by the State;[1624] while private debts, inclusive of municipal debts, exhaust for the most part the second line. Public Grants Municipal Corporations.--Not all grants by a State constitute "contracts" within the sense of article I, section 10. In his Dartmouth College decision Chief Justice Marshall conceded that "if the act of incorporation be a grant of political power, if it creates a civil institution, to be employed in the administration of the government, * * *, the subject is one in which the legislature of the State may act according to its own justment," unrestrained by the Constitution[1625]--thereby drawing a line between "public" and "private" corporations which remained undisturbed for more than half a century.[1626] It has been subsequently held many times that municipal corporations are mere instrumentalities of the State for the more convenient administration of local governments, whose powers may be enlarged, abridged, or entirely withdrawn at the pleasure of the legislature.[1627] The same principle applies, moreover, to the property rights which the municipality derives either directly or indirectly from the State. This was first held as to the grant of a franchise to a municipality to operate a ferry, and has since then been recognized as the universal rule.[1628] As was stated in a case decided in 1923: "The distinction between the municipality as an agent of the State for governmental purposes and as an organization to care for local needs in a private or proprietary capacity," while it limits the legal liability of municipalities for the negligent acts or omissions of its officers or agents, does not, on the other hand, furnish ground for the application of constitutional restraints against the State in favor of its own municipalities.[1629] Thus no contract rights are impaired by a statute removing a county seat, even though the former location was by law to be "permanent" when the citizens of the community had donated land and furnished bonds for the erection of public buildings.[1630] Likewise a statute changing the boundaries of a school district, giving to the new district the property within its limits which had belonged to the former district, and requiring the new district to assume the debts of the old district, does not impair the obligation of contracts.[1631] Nor was the contracts clause violated by State legislation authorizing State control over insolvent communities through a Municipal Finance Commission.[1632] Public Offices.--On the same ground of public agency, neither appointment nor election to public office creates a contract in the sense of article I, section 10, whether as to tenure, or salary, or duties, all of which remain, so far as the Constitution of the United States is concerned, subject to legislative modification or outright repeal.[1633] Indeed there can be no such thing in this country as property in office, although the common law sustained a different view which sometimes found reflection in early cases.[1634] When, however, services have once been rendered, there arises an implied contract that they shall be compensated at the rate which was in force at the time they were rendered.[1635] Also, an express contract between the State and an individual for the performance of specific services falls within the protection of the Constitution. Thus a contract made by the governor pursuant to a statute authorizing the appointment of a commissioner to conduct, over a period of years, a geological, mineralogical, and agricultural survey of the State, for which a definite sum had been authorized, was held to have been impaired by repeal of the statute.[1636] But a resolution of a New Jersey local board of education reducing teachers' salaries for the school year 1933-1934, pursuant to an act of the legislature authorizing such action, was held not to impair the contract of a teacher who, having served three years, was by earlier legislation exempt from having his salary reduced except for inefficiency or misconduct.[1637] Similarly, it was held that an Illinois statute which reduced the annuity payable to retire teachers under an earlier act did not violate the contracts clause, since it had not been the intention of the earlier act to propose a contract but only to put into effect a general policy.[1638] On the other hand, the right of one, who had become a "permanent teacher" under the Indiana Teachers Tenure Act of 1927, to continued employment was held to be contractual and to have been impaired by the repeal in 1933 of the earlier act.[1639] Revocable Privileges Versus "Contracts": Tax Exemptions.--From a different point of view, the Court has sought to distinguish between grants of privileges, whether to individuals or to corporations, which are contracts and those which are mere revocable licenses, although on account of the doctrine of presumed consideration mentioned earlier, this has not always been easy to do. In pursuance of the precedent set in New Jersey _v._ Wilson,[1640] the legislature of a State "may exempt particular parcels of property or the property of particular persons or corporations from taxation, either for a specified period or perpetually, or may limit the amount or rate of taxation, to which such property shall be subjected," and such an exemption is frequently a contract within the sense of the Constitution. Indeed this is always so when the immunity is conferred upon a corporation by the clear terms of its charter.[1641] When, on the other hand, an immunity of this sort springs from general law, its precise nature is more open to doubt, as a comparison of decisions will serve to illustrate. In Piqua Branch of the State Bank _v._ Knoop,[1642] a closely divided Court held that a general banking law of the State of Ohio which provided that companies complying therewith and their stockholders should be exempt from all but certain taxes, was, as to a bank organized under it and its stockholders, a contract within the meaning of article I, section 10. "The provision was not," the Court said, "a legislative command nor a rule of taxation until changed, but a contract stipulating against any change, from the nature of the language used and the circumstances under which it was adopted."[1643] When, however, the State of Michigan pledged itself, by a general legislative act, not to tax any corporation, company, or individual undertaking to manufacture salt in the State from water there obtained by boring on property used for this purpose and, furthermore, to pay a bounty on the salt so manufactured, it was held not to have engaged itself within the constitutional sense. "General encouragements," said the Court, "held out to all persons indiscriminately, to engage in a particular trade or manufacture, whether such encouragement be in the shape of bounties or drawbacks, or other advantage, are always under the legislative control, and may be discontinued at any time."[1644] So far as exemption from taxation is concerned the difference between these two cases is obviously slight; but the later one is unquestionable authority for the proposition that legislative bounties are repealable at will. Furthermore, exemptions from taxation have in certain cases been treated as gratuities repealable at will, even when conferred by specific legislative enactments. This would seem always to be the case when the beneficiaries were already in existence when the exemption was created and did nothing of a more positive nature to qualify for it than to continue in existence.[1645] Yet the cases are not always easy to explain in relation to each other, except in light of the fact that the Court's wider point of view has altered from time to time.[1646] Vested Rights.--Lastly, the term "contracts" is used in the contracts clause in its popular sense of an agreement of minds. The clause therefore does not protect vested rights that are not referable to such an agreement between the State and an individual, such as the right to recovery under a judgment. The individual in question may have a case under the Fourteenth Amendment, but not one under article I, section 10.[1647] Reservation of the Right to Alter and Repeal So much for the meaning of the word "contract" when public grants are meant. It is next in order to consider four principles or doctrines whereby the Court has itself broken down the force of the Dartmouth College decision in great measure in favor of State legislative power. By the logic of the Dartmouth College decision itself the State may reserve in a corporate charter the right to "amend, alter, and repeal" the same, and such reservation becomes a part of the contract between the State and the incorporators, the obligation of which is accordingly not impaired by the exercise of the right.[1648] Later decisions recognize that the State may reserve the right to amend, alter, and repeal by general law, with the result of incorporating the reservation in all charters of subsequent date.[1649] There is, however, a difference between a reservation by a statute and one by constitutional provision. While the former may be repealed as to a subsequent charter by the specific terms thereof, the latter may not.[1650] The Right to Reserve: When Limited.--Is the right which is reserved by a State to "amend" or "alter" a charter without restriction? When it is accompanied, as it generally is, by the right to "repeal," one would suppose that the answer to this question was self-evident. None the less, there are a number of judicial dicta to the effect that this power is not without limit, that it must be exercised reasonably and in good faith, and that the alterations made must be consistent with the scope and object of the grant, etc.[1651] Such utterances amount, apparently, to little more than an anchor to windward, for while some of the State courts have applied tests of this nature to the disallowance of legislation, it does not appear that the Supreme Court of the United States has ever done so.[1652] Quite different is it with the distinction pointed out in the cases between the franchises and privileges which a corporation derives from its charter and the rights of property and contract which accrue to it in the course of its existence. Even the outright repeal of the former does not wipe out the latter or cause them to escheat to the State. The primary heirs of the defunct organization are its creditors; but whatever of value remains after their valid claims are met goes to the former shareholders.[1653] By the earlier weight of authority, on the other hand, persons who contract with companies whose charters are subject to legislative amendment or repeal do so at their own risk: any "such contracts made between individuals and the corporation do not vary or in any manner change or modify the relation between the State and the corporation in respect to the right of the State to alter, modify, or amend such a charter, * * *"[1654] But later holdings becloud this rule.[1655] Corporations As Persons Subject To The Law.--But suppose the State neglects to reserve the right to amend, alter, or repeal--is it, then, without power to control its corporate creatures? By no means. Private corporations, like other private persons, are always presumed to be subject to the legislative power of the State; from which it follows that immunities conferred by charter are to be treated as exceptions to an otherwise controlling rule. This principle was recognized by Chief Justice Marshall in the case of Providence Bank _v._ Billings,[1656] in which he held that in the absence of express stipulation or reasonable implication to the contrary in its charter, the bank was subject to the taxing power of the State, notwithstanding that the power to tax is the power to destroy. Corporations and the Police Power.--And of course the same principle is equally applicable to the exercise by the State of its police powers. Thus, in what was perhaps the leading case before the Civil War, the Supreme Court of Vermont held that the legislature of that State had the right, in furtherance of the public safety, to require chartered companies operating railways to fence in their tracks and provide cattle yards. In a matter of this nature, said the Court, corporations are on a level with individuals engaged in the same business, unless, from their charter, they can prove the contrary.[1657] Since then the rule has been applied many times in justification of State regulation of railroads,[1658] and even of the application of a State prohibition law to a company which had been chartered expressly to manufacture beer.[1659] The Strict Construction of Public Grants Long, however, before the cases last cited were decided, the principle which they illustrate had come to be powerfully reinforced by two others, the first of which is that all charter privileges and immunities are to be strictly construed as against the claims of the State; or as it is otherwise often phrased, "nothing passes by implication in a public grant." The Charles River Bridge Case.--The leading case is that of the Charles River Bridge Company _v._ Warren Bridge Company,[1660] which was decided shortly after Chief Justice Marshall's death by a substantially new Court. The question at issue was whether the charter of the complaining company, which authorized it to operate a toll bridge, stood in the way of the State's permitting another company of later date to operate a free bridge in the immediate vicinity. Inasmuch as the first company could point to no clause in its charter which specifically vested it with an exclusive right, the Court held the charter of the second company to be valid on the principle just stated. Justice Story, who remained from the old Bench, presented a vigorous dissent, in which he argued cogently, but unavailingly, that the monopoly claimed by the Charles River Bridge Company was fully as reasonable an implication from the terms of its charter and the circumstances surrounding its concession as perpetuity had been from the terms of the Dartmouth College charter and the environing transaction. The Court was in fact making new law, because it was looking at things from a new point of view. This was the period when judicial recognition of the Police Power began to take on a doctrinal character. It was also the period when the railroad business was just beginning. Chief Justice Taney's opinion evinces the influence of both these developments. The power of the State to provide for its own internal happiness and prosperity was not, he asserted, to be pared away by mere legal intendments; nor was its ability to avail itself of the lights of modern science to be frustrated by obsolete interests such as those of the old turnpike companies, the charter privileges of which, he apprehended, might easily become a bar to the development of transportation along new lines.[1661] Applications of the Strict Construction Rule.--The rule of strict construction has been reiterated by the Court many times. A good illustration is afforded by the following passage from its opinion in Blair _v._ Chicago,[1662] decided nearly seventy years after the Charles River Bridge Case: "Legislative grants of this character should be in such unequivocal form of expression that the legislative mind may be distinctly impressed with their character and import, in order that the privileges may be intelligently granted or purposely withheld. It is a matter of common knowledge that grants of this character are usually prepared by those interested in them, and submitted to the legislature with a view to obtain from such bodies the most liberal grant of privileges which they are willing to give. This is one among many reasons why they are to be strictly construed. * * * 'The principle is this, that all rights which are asserted against the State must be clearly defined, and not raised by inference or presumption; and if the charter is silent about a power, it does not exist. If, on a fair reading of the instrument, reasonable doubts arise as to the proper interpretation to be given to it, those doubts are to be solved in favor of the State; and where it is susceptible of two meanings, the one restricting and the other extending the powers of the corporation, that construction is to be adopted which works the least harm to the State.'"[1663] Strict Construction of Tax Exemptions.--An excellent illustration of the operation of the rule in relation to tax exemptions is furnished by the derivative doctrine that an immunity of this character must be deemed as intended solely for the benefit of the corporation receiving it and hence may not, in the absence of express permission by the State, be passed on to a successor.[1664] Thus, where two companies, each exempt from taxation, were permitted by the legislature to consolidate the new corporation was held to be subject to taxation.[1665] Again, a statute which granted a corporation all "the rights and privileges" of an earlier corporation was held not to confer the latter's "immunity" from taxation.[1666] Yet again, a legislative authorization of the transfer by one corporation to another of the former's "estate, property, right, privileges, and franchises" was held not to clothe the later company with the earlier one's exemption from taxation.[1667] Furthermore, an exemption from taxation is to be strictly construed even in the hands of one clearly entitled to it. So the exemption conferred by its charter on a railway company was held not to extend to branch roads constructed by it under a later statute.[1668] Also, a general exemption of the property of a corporation from taxation was held to refer only to the property actually employed in its business.[1669] Also, the charter exemption of the capital stock of a railroad from taxation "for ten years after completion of the said road" was held not to become operative until the completion of the road.[1670] So also the exemption of the campus and endowment fund of a college was held to leave other lands of the college, though a part of its endowment, subject to taxation.[1671] Likewise, provisions in a statute that bonds of the State and its political subdivisions are not to be taxed and shall not be taxed were held not to exempt interest on them from taxation as income of the owners.[1672] Strict Construction and the Police Power.--The police power, too, has frequently benefited from the doctrine of strict construction, although, for a reason pointed out below, this recourse is today seldom, if ever, necessary in this connection. Some of the more striking cases may be briefly summarized. The provision in the charter of a railway company permitting it to set reasonable charges still left the legislature free to determine what charges were reasonable.[1673] On the other hand, when a railway agreed to accept certain rates for a specified period, it thereby foreclosed the question of the reasonableness of such rates.[1674] The grant to a company of the right to supply a city with water for twenty-five years was held not to prevent a similar concession to another company by the same city.[1675] The promise by a city in the charter of a water company not to make a similar grant to any other person or corporation was held not to prevent the city itself from engaging in the business.[1676] A municipal concession to a water company which was to run for thirty years and which was accompanied by the provision that the "said company shall charge the following rates," was held not to prevent the city from reducing such rates.[1677] But more broadly, the grant to a municipality of the power to regulate the charges of public service companies was held not to bestow the right to contract away this power.[1678] Indeed, any claim by a private corporation that it received the rate-making power from a municipality must survive a two-fold challenge: first, as to the right of the municipality under its charter to make such a grant; secondly, as to whether it has actually done so; and in both respects an affirmative answer must be based on express words and not on implication.[1679] The Doctrine of Inalienable State Powers The second of the doctrines mentioned above whereby the principle of the subordination of all persons, corporate and individual alike, to the legislative power of the State has been fortified, is the doctrine that certain of the State's powers are inalienable, and that any attempt by a State to alienate them, upon any consideration whatsoever, is _ipso facto_ void, and hence incapable of producing a "contract" within the meaning of article I, section 10. One of the earliest cases to assert this principle occurred in New York in 1826. The corporation of the City of New York, having conveyed certain lands for the purposes of a church and cemetery together with a covenant for quiet enjoyment, later passed a by-law forbidding their use as a cemetery. In denying an action against the city for breach of covenant, the State court said the defendants "had no power as a party, [to the covenant] to make a contract which should control or embarrass their legislative powers and duties."[1680] The Eminent Domain Power Inalienable.--The Supreme Court first applied similar doctrine in 1848 in a case involving a grant of exclusive right to construct a bridge at a specified locality. Sustaining the right of the State of Vermont to make a new grant to a competing company, the Court held that the obligation of the earlier exclusive grant was sufficiently recognized in making just compensation for it; and that corporate franchises, like all other forms of property, are subject to the overruling power of eminent domain.[1681] This reasoning was reinforced by an appeal to the theory of State sovereignty, which was held to involve the corollary of the inalienability of all the principal powers of a State. The subordination of all charter rights and privileges to the power of eminent domain has been maintained by the Court ever since; not even an explicit agreement by the State to forego the exercise of the power will avail against it.[1682] Conversely, the State may revoke an improvident grant of the public petitionary without recourse to the power of eminent domain, such a grant being inherently beyond the power of the State to make. So when the legislature of Illinois in 1869 devised to the Illinois Central Railroad Company, its successors and assigns, the State's right and title to nearly a thousand acres of submerged land under Lake Michigan along the harbor front of Chicago, and four years later sought to repeal the grant, the Court, in a four-to-three decision, sustained an action by the State to recover the lands in question. Said Justice Field, speaking for the majority: "Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. * * * Any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the State can be resumed at any time."[1683] The case affords an interesting commentary on Fletcher _v._ Peck.[1684] The Taxing Power Not Inalienable.--On the other hand, repeated endeavors to subject tax exemptions to the doctrine of inalienability though at times supported by powerful minorities on the Bench, have always failed.[1685] As recently as January, 1952, the Court ruled that the Georgia Railway Company was entitled to seek an injunction in the federal courts against an attempt by Georgia's Revenue Commission to compel it to pay _ad valorem_ taxes contrary to the terms of its special charter issued in 1833. To the argument that this was a suit contrary to the Eleventh Amendment it returned the answer that the immunity from Federal jurisdiction created by the Amendment "does not extend to individuals who act as officers without constitutional authority."[1686] The Police Power; When Inalienable.--The leading case involving the police power is Stone _v._ Mississippi, 101 U.S. 814, decided in 1880. In 1867 the legislature of Mississippi chartered a company to which it expressly granted the power to conduct a lottery. Two years later the State adopted a new Constitution which contained a provision forbidding lotteries; and a year later the legislature passed an act to put this provision into effect. In upholding this act and the constitutional provision on which it was based, the Court said: "The power of governing is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights," and these agencies can neither give away nor sell their discretion. All that one can get by a charter permitting the business of conducting a lottery "is suspension of certain governmental rights in his favor, subject to withdrawal at will."[1687] The Court shortly afterward applied the same reasoning in a case in which was challenged the right of Louisiana to invade the exclusive privilege of a corporation engaged in the slaughter of cattle in New Orleans by granting another company the right to engage in the same business. Although the State did not offer to compensate the older company for the lost monopoly, its action was sustained on the ground that it had been taken in the interest of the public health.[1688] When, however, the City of New Orleans, in reliance on this precedent, sought to repeal an exclusive franchise which it had granted a company for fifty years to supply gas to its inhabitants, the Court interposed its veto, explaining that in this instance neither the public health, the public morals, nor the public safety was involved.[1689] Later decisions, nonetheless, apply the principle of inalienability broadly. To quote from one: "It is settled that neither the 'contract' clause nor the 'due process' clause has the effect of overriding the power to the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and all contract and property rights are held subject to its fair exercise."[1690] Today, indeed, it scarcely pays a company to rely upon its charter privileges or upon special concessions from a State in resisting the application to it of measures claiming to have been enacted by the police power thereof. For if this claim is sustained by the Court, the obligation of the contract clause will not avail; while if it is not, the due process of law clause of the Fourteenth Amendment will furnish a sufficient reliance. That is to say, the discrepancy which once existed between the Court's theory of an overriding police power in these two adjoining fields of Constitutional Law is today apparently at an end. Indeed, there is usually no sound reason why rights based on public grant should be regarded as more sacrosanct than rights which involve the same subject matter but are of different provenience. Private Contracts Scope of the Term.--The term "private contracts" is, naturally, not all-inclusive. A judgment, though granted in favor of a creditor, is not a contract in the sense of the Constitution;[1691] nor is marriage.[1692] And whether a particular agreement is a valid contract is a question for the courts, and finally for the Supreme Court, when the protection of the contract clause is invoked.[1693] Source of the Obligation.--The question of the nature and source of the obligation of a contract, which went by default in Fletcher _v._ Peck and the Dartmouth College case, with such vastly important consequences, had eventually to be met and answered by the Court in connection with private contracts. The first case involving such a contract to reach the Supreme Court was Sturges _v._ Crowninshield[1694] in which a debtor sought escape behind a State insolvency act of later date than his note. The act was held inoperative; but whether this was because of its retroaction in this particular case or for the broader reason that it assumed to excuse debtors from their promises, was not at the time made clear. As noted earlier, Chief Justice Marshall's definition on this occasion of the obligation of a contract as the law which binds the parties to perform their undertakings was not free from ambiguity, owing to the uncertain connotation of the term _law_. Ogden _v._ Saunders.--These obscurities were finally cleared up for most cases in Ogden _v._ Saunders,[1695] in which the temporal relation of the statute and the contract involved was exactly reversed--the former antedating the latter. Marshall contended, but unsuccessfully, that the statute was void, inasmuch as it purported to release the debtor from that original, intrinsic obligation which always attaches under natural law to the acts of free agents. "When," he wrote, "we advert to the course of reading generally pursued by American statesmen in early life, we must suppose that the framers of our Constitution were intimately acquainted with the writings of those wise and learned men whose treatises on the laws of nature and nations have guided public opinion on the subjects of obligation and contract," and that they took their views on these subjects from those sources. He also posed the question of what would happen to the obligation of contracts clause if States might pass acts declaring that all contracts made subsequently thereto should be subject to legislative control.[1696] For the first and only time majority of the Court abandoned the Chief Justice's leadership. Speaking by Justice Washington it held that the obligation of private contracts is derived from the municipal law--State statutes and judicial decisions--and that the inhibition of article I, section 10, is confined to legislative acts made after the contracts affected by them, with one exception. For by a curiously complicated line of reasoning it was also held in this same case that when the creditor is a nonresident, then a State may not by an insolvent law rights under a contract, albeit one of later date. With the proposition established that the obligation of a private contract comes from the _municipal_ law in existence when the contract is made, a further question presents itself, namely, what part of the municipal law is referred to? No doubt, the law which determines the validity of the contract itself is a part of such law. Also, the law which interprets the terms used in the contract, or which supplies certain terms when others are used; as for instance, constitutional provisions or statutes which determine what is "legal tender" for the payment of debts; or judicial decisions which construe the term "for value received" as used in a promissory note, and so on. In short, any law which at the time of the making of a contract goes to measure the rights and duties of the parties to it in relation to each other enters into its obligation. Remedy a Part of the Obligation Suppose, however, that one of the parties to a contract fails to live up to his obligation as thus determined. The contract itself may now be regarded as at an end; but the injured party, nevertheless, has a new set of rights in its stead, those which are furnished him by the remedial law, including the law of procedure. In the case of a mortgage, he may foreclose; in the case of a promissory note, he may sue; in certain cases, he may demand specific performance. Hence the further question arises, whether this remedial law is to be considered a part of the law supplying the obligation of contracts. Originally, the predominating opinion was negative, since as we have just seen, this law does not really come into operation until the contract has been broken. Yet it is obvious that the sanction which this law lends to contracts is extremely important--indeed, indispensable. In due course it became the accepted doctrine that that part of the law which supplies one party to a contract with a remedy if the other party does not live up to his agreement, as authoritatively interpreted, entered into the "obligation of contracts" in the constitutional sense of this term, and so might not be altered to the material weakening of existing contracts. In the court's own words, "Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, * * *"[1697] Establishment Of The Rules.--This rule was first definitely announced in 1843 in the case of Bronson _v._ Kinzie.[1698] Here an Illinois mortgage giving the mortgagee an unrestricted power of sale in case of the mortgagor's fault was involved, along with a later act of the legislature which required mortgaged premises to be sold for not less than two-thirds of the appraised value, and allowed the mortgagor a year after the sale to redeem them. It was held that the statute, in altering the preexisting remedies to such an extent, violated the constitutional prohibition, and hence was void. The year following a like ruling was made in the case of McCracken _v._ Hayward[1699] as to a statutory provision that personal property should not be sold under execution for less than two-thirds of its appraised value. Qualifications Of The Rule.--But the rule illustrated by these cases does not signify that a State may make no changes in its remedial or procedural law which affect existing contracts. "Provided," the Court has said, "a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract, the Legislature may modify or change existing remedies or prescribe new modes of procedure."[1700] Thus States are constantly remodelling their judicial systems and modes of practice unembarrassed by the obligation of contracts clause.[1701] The right of a State to abolish imprisonment for debt was early asserted.[1702] Again the right of a State to shorten the time for the bringing of actions has been affirmed even as to existing causes of action, but with the proviso added that a reasonable time must be left for the bringing of such actions.[1703] On the other hand, a statute which withdrew the judicial power to enforce satisfaction of a certain class of judgments by mandamus was held invalid.[1704] In the words of the Court: "Every case must be determined upon its own circumstances;"[1705] and it later added: "In all such cases the question becomes, * * *, one of reasonableness, and of that the legislature is primarily the judge."[1706] The Municipal Bond Cases.--There is one class of cases resulting from the doctrine that the law of remedy constitutes a part of the obligation of a contract to which a special word is due. This comprises cases in which the contracts involved were municipal bonds. While a city is from one point of view but an emanation from the government's sovereignty and an agent thereof, when it borrows money it is held to be acting in a corporate or private capacity, and so to be suable on its contracts. Furthermore, as was held in the leading case of Von Hoffman _v._ Quincy,[1707] "where a State has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied." In this case the Court issued a mandamus compelling the city officials to levy taxes for the satisfaction of a judgment on its bonds in accordance with the law as it stood when the bonds were issued.[1708] Nor may a State by dividing an indebted municipality among others enable it to escape its obligations. In such a case the debt follows the territory, and the duty of assessing and collecting taxes to satisfy it devolves upon the succeeding corporations and their officers.[1709] But where a municipal organization has ceased practically to exist through the vacation of its offices, and the government's function is exercised once more by the State directly, the Court has thus far found itself powerless to frustrate a program of repudiation.[1710] However, there is no reason why the State should enact the role of _particeps criminis_ in an attempt to relieve its municipalities of the obligation to meet their honest debts. Thus in 1931, during the Great Depression, New Jersey created a Municipal Finance Commission with power to assume control over its insolvent municipalities. To the complaint of certain bondholders that this legislation impaired the contract obligations of their debtors, the Court, speaking by Justice Frankfurter, pointed out that the practical value of an unsecured claim against a city is "the effectiveness of the city's taxing power," which the legislation under review was designed to conserve.[1711] Private Contracts and the Police Power The increasing subjection of public grants to the State's police power has been previously pointed out. That purely private contracts should be in any stronger situation in this respect would obviously be anomalous in the extreme. In point of fact, the ability of private parties to curtail governmental authority by the easy devise of contracting with one another is, with an exception to be noted, even less than that of the State to tie its own hands by contracting away its own powers. So, when it was contended in an early Pennsylvania case, than an act prohibiting the issuance of notes by unincorporated banking associations was violative of the obligation of contracts clause because of its effect upon certain existing contracts of members of such associations, the State Supreme Court answered: "But it is said, that the members had formed a contract _between themselves_, which would be dissolved by the stoppage of their business; and what then? Is that such a violation of contracts as is prohibited by the Constitution of the United States? Consider to what such a construction would lead. Let us suppose, that in one of the States there is no law against gaming, cock-fighting, horse-racing or public masquerades, and that companies should be formed for the purpose of carrying on these practices; * * *" Would the legislature then be powerless to prohibit them? The answer returned, of course, was no.[1712] The prevailing doctrine is stated by the Supreme Court of the United States in the following words: "It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. * * * In other words, that parties by entering into contracts may not estop the legislature from enacting laws intended for the public good."[1713] So, in an early case we find a State recording act upheld as applying to deeds dated before the passage of the act.[1714] Later cases have brought the police power in its more customary phases into contact with private, as well as with public contracts. Lottery tickets, valid when issued, were necessarily invalidated by legislation prohibiting the lottery business;[1715] contracts for the sale of beer, valid when entered into, were similarly nullified by a State prohibition law;[1716] and contracts of employment were modified by later laws regarding the liability of employers and workmen's compensation.[1717] Likewise a contract between plaintiff and defendant did not prevent the State from making the latter a concession which rendered the contract worthless;[1718] nor did a contract as to rates between two railway companies prevent the State from imposing different rates;[1719] nor did a contract between a public utility company and a customer protect the rates agreed upon from being superseded by those fixed by the State.[1720] Similarly, a contract for the conveyance of water beyond the limits of a State did not prevent the State from prohibiting such conveyance.[1721] Emergency Legislation.--But the most striking exertions of the police power touching private contracts, as well as other private interests, within recent years have been evoked by war and economic depression. Thus in World War I the State of New York enacted a statute which, declaring that a public emergency existed, forbade the enforcement of covenants for the surrender of the possession of premises on the expiration of leases, and wholly deprived for a period owners of dwellings, including apartment and tenement houses, within the City of New York and contiguous counties of possessory remedies for the eviction from their premises of tenants in possession when the law took effect, providing the latter were able and willing to pay a reasonable rent. In answer to objections leveled against this legislation on the basis of the obligation of contracts clause, the Court said: "But contracts are made subject to this exercise of the power of the State when otherwise justified, as we have held this to be."[1722] In a subsequent case, however, the Court added that, while the declaration by the legislature of a justifying emergency was entitled to great respect, it was not conclusive; that a law "depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change," and that whether they have changed was always open to judicial inquiry.[1723] Individual Rights Versus Public Welfare.--Summing up the result of the cases above referred to, Chief Justice Hughes, speaking for the Court in Home Building and Loan Association _v._ Blaisdell,[1724] remarked in 1934: "It is manifest from this review of our decisions that there has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. The settlement and consequent contraction of the public domain, the pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved, and that those of the State itself were touched only remotely, it has later been found that the fundamental interests of the State are directly affected; and that the question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends. * * * The principle of this development is, * * * [he added] that the reservation of the reasonable exercise of the protective power of the States is read into all contracts * * *."[1725] Evaluation of the Clause Today Yet it should not be inferred that the obligation of contracts clause is today totally moribund even in times of stress. As we have just seen it still furnishes the basis for some degree of judicial review as to the substantiality of the factual justification of a professed exercise by a State legislature of its police power; and in the case of legislation affecting the remedial rights of creditors, it still affords a solid and palpable barrier against legislative erosion. Nor is this surprising in view of the fact that, as we have seen, such rights were foremost in the minds of the framers of the clause. The court's attitude toward insolvency laws, redemption laws, exemption laws, appraisement laws and the like has always been that they may not be given retroactive operation;[1726] and the general lesson of these earlier cases is confirmed by the court's decisions between 1934 and 1945 in certain cases involving State moratorium statutes. In Home Building and Loan Association _v._ Blaisdell,[1727] the leading case, a closely divided Court sustained the Minnesota Moratorium Act of April 18, 1933, which, reciting the existence of a severe financial and economic depression for several years and the frequent occurrence of mortgage foreclosure sales for inadequate prices, and asserting that these conditions had created an economic emergency calling for the exercise of the State's police power, authorized its courts to extend the period for redemption from foreclosure sales for such additional time as they might deem just and equitable, although in no event beyond May 1, 1935. The act also left the mortgagor in possession during the period of extension, subject to the requirement that he pay a reasonable rental for the property as fixed by the Court, at such time and in such manner as should be determined by the Court. Contemporaneously, however, less carefully drawn statutes from Missouri and Arkansas, acts which were less considerate of creditor's rights, were set aside as violative of the contracts clause.[1728] "A State is free to regulate the procedure in its courts even with reference to contracts already made," said Justice Cardozo for the Court, "and moderate extensions of the time for pleading or for trial will ordinarily fall within the power so reserved. A different situation is presented when extensions are so piled up as to make the remedy a shadow. * * * What controls our judgment at such times is the underlying reality rather than the form or label. The changes of remedy now challenged as invalid are to be viewed in combination, with the cumulative significance that each imparts to all. So viewed they are seen to be an oppressive and unnecessary destruction of nearly all the incidents that give attractiveness and value to collateral security."[1729] On the other hand, in the most recent of this category of cases, the Court gave its approval to an extension by the State of New York of its moratorium legislation. While recognizing that business conditions had improved, the Court was of the opinion that there was reason to believe that "'the sudden termination of the legislation which has damned up normal liquidation of these mortgages for more than eight years might well result in an emergency more acute than that which the original legislation was intended to alleviate.'"[1730] And meantime the Court had sustained legislation of the State of New York under which a mortgagee of real property was denied a deficiency judgment in a foreclosure suit where the State court found that the value of the property purchased by the mortgagee at the foreclosure sale was equal to the debt secured by the mortgage.[1731] "Mortgagees," the Court said, "are constitutionally entitled to no more than payment in full. * * * To hold that mortgagees are entitled under the contract clause to retain the advantages of a forced sale would be to dignify into a constitutionally protected property right their chance to get more than the amount of their contracts. * * * The contract clause does not protect such a strategical, procedural advantage."[1732] Statistical Data Pertinent to the Clause The obligation of contracts clause attained the high point of its importance in our Constitutional Law in the years immediately following the Civil War.[1733] Between 1865 and 1873 there were twenty cases in which State acts were held invalid under the clause, of which twelve involved public contracts. During the next fifteen years, which was the period of Waite's chief justiceship, twenty-nine cases reached the Court in which State legislation was set aside under the clause. Twenty-four of these involved public contracts. The decline of the importance of the clause as a title in Constitutional Law began under Chief Justice Fuller (1888 to 1910). During this period less than 25% of the cases involving the validity of State legislation involved this rubric. In twenty-eight of these cases, of which only two involved private contracts, the statute involved was set aside. During Chief Justice White's term (1910 to 1921) the proportion of contract cases shrank to 15%, and in that of Chief Justice Taft, to 9%.[1734] In recent years the clause has appeared to undergo something of a revival, not however as a protection of public grants, but as a protection of private credits. During the Depression, which began in 1929 and deepened in 1932, State legislatures enacted numerous moratorium statutes, and beginning with Home Loan Association _v._ Blaisdell, which was decided in 1934, the Court was required to pass upon several of these. At the same time the clause was, in effect, treated by the Court in two important cases as interpretive of the due process clause, Amendment V, and thus applied indirectly as a restriction on the power of Congress.[1735] But this emergence of the clause into prominence was a flash in the pan. During the last decade hardly a case a term involving the clause has reached the Court, counting even those in which it is treated as a tail to the due process of law kite.[1736] The reason for this declension has been twofold: first, the subordination of public grants to the police power; secondly, the expansion of the due process clause, which has largely rendered it a fifth wheel to the Constitutional Law coach. Clause 2. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. DUTIES ON EXPORTS AND IMPORTS Scope Only articles imported from or exported to a foreign country, or "a place over which the Constitution has not extended its commands with respect to imports and their taxation," e.g., the Philippine Islands, are comprehended by the terms "imports" and "exports,"[1737] goods brought from another State are not affected by this section.[1738] To determine how long imported wares remain under the protection of this clause, the Supreme Court enunciated the original package doctrine in the leading case of Brown _v._ Maryland.[1739] "When the importer has so acted upon the thing imported," wrote Chief Justice Marshall, "that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports, to escape the prohibition in the Constitution."[1740] A box, case or bale in which separate parcels of goods have been placed by the foreign seller is regarded as the original package, and upon the opening of such container for the purpose of using the separate parcels, or of exposing them for sale, each parcel loses its character as an import and becomes subject to taxation as a part of the general mass of property in the State.[1741] Imports for manufacture cease to be such when the intended processing takes place,[1742] or when the original packages are broken.[1743] Where a manufacturer imports merchandise and stores it in his warehouse in the original packages, that merchandise does not lose its quality as an import, at least so long as it is not required to meet such immediate needs.[1744] The purchaser of imported goods is deemed to be the importer if he was the efficient cause of the importation, whether the title to the goods vested in him at the time of shipment, or after its arrival in this country.[1745] A State franchise tax measured by properly apportioned gross receipts may be imposed upon a railroad company in respect of the company's receipts for services in handling imports and exports at its marine terminal.[1746] Privilege Taxes A State law requiring importers to take out a license to sell imported goods amounts to an indirect tax on imports and hence is unconstitutional.[1747] Likewise, a franchise tax upon foreign corporations engaged in importing nitrate and selling it in the original packages,[1748] a tax on sales by brokers[1749] and auctioneers[1750] of imported merchandise in original packages, and a tax on the sale of goods in foreign commerce consisting of an annual license fee plus a percentage of gross sales,[1751] have been held invalid. On the other hand, pilotage fees,[1752] a tax upon the gross sales of a purchaser from the importer,[1753] a license tax upon dealing in fish which, through processing, handling, and sale, have lost their distinctive character as imports,[1754] an annual license fee imposed on persons engaged in buying and selling foreign bills of exchange,[1755] and a tax upon the right of an alien to receive property as heir, legatee, or donee of a deceased person[1756] have been held not to be duties on imports or exports. Property Taxes Property brought into the United States from without is immune from _ad valorem_ taxation so long as it retains its character as an import,[1757] but the proceeds of the sale of imports, whether in the form of money or notes, may be taxed by a State.[1758] A property tax levied on warehouse receipts for whiskey exported to Germany was held unconstitutional as a tax on exports.[1759] Inspection Laws Inspection laws "are confined to such particulars as, in the estimation of the legislature and according to the customs of trade, are deemed necessary to fit the inspected article for the market, by giving the purchaser public assurance that the article is in that condition, and of that quality, which makes it merchantable and fit for use or consumption."[1760] In Turner _v._ Maryland[1761] the Supreme Court listed as recognized elements of inspection laws, the "quality of the article, form, capacity, dimensions, and weight of package, mode of putting up, and marking and branding of various kinds, * * *" .[1762] It sustained as an inspection law a charge for storage and inspection imposed upon every hogshead of tobacco grown in the State and intended for export, which the law required to be brought to a State warehouse to be inspected and branded. The Court has cited this section as a recognition of a general right of the States to pass inspection laws, and to bring, within their reach articles of interstate, as well as of foreign, commerce.[1763] But on the ground that, "it has never been regarded as within the legitimate scope of inspection laws to forbid trade in respect to any known article of commerce, irrespective of its condition and quality, merely on account of its intrinsic nature and the injurious consequences of its use or abuse," it held that a State law forbidding the importation of intoxicating liquors into the State could not be sustained as an inspection law.[1764] Since the adoption of the Twenty-first Amendment, such State legislation is valid whether classified as an inspection law or not. Clause 3. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. TONNAGE DUTIES The prohibition against tonnage duties embraces all taxes and duties, regardless of their name or form, whether measured by the tonnage of the vessel or not, which are in effect charges for the privilege of entering, trading in, or lying in a port.[1765] But it does not extend to charges made by State authority, even if graduated according to tonnage,[1766] for services rendered to the vessel, such as pilotage, towage, charges for loading and unloading cargoes, wharfage, or storage.[1767] For the purpose of determining wharfage charges, it is immaterial whether the wharf was built by the State, a municipal corporation or an individual; where the wharf is owned by a city, the fact that the city realized a profit beyond the amount expended does not render the toll objectionable.[1768] The services of harbor masters for which fees are allowed must be actually rendered, and a law permitting harbor masters or port wardens to impose a fee in all cases is void.[1769] A State may not levy a tonnage duty to defray the expenses of its quarantine system,[1770] but it may exact a fixed fee for examination of all vessels passing quarantine.[1771] A State license fee for ferrying on a navigable river is not a tonnage tax, but rather is a proper exercise of the police power, and the fact that a vessel is enrolled under federal law does not exempt it.[1772] In the State Tonnage Tax Cases,[1773] an annual tax on steamboats measured by their registered tonnage was held invalid despite the contention that it was a valid tax on the steamboat as property. KEEPING TROOPS This provision contemplates the use of the State's military power to put down an armed insurrection too strong to be controlled by civil authority;[1774] and the organization and maintenance of an active State militia is not a keeping of troops in time of peace within the prohibition of this clause.[1775] INTERSTATE COMPACTS Background of Clause Except for the single limitation that the consent of Congress must be obtained, the original inherent sovereign rights of the States to make compacts with each other was not surrendered under the Constitution.[1776] "The compact," as the Supreme Court has put it, "adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations."[1777] In American history the compact technique can be traced back to the numerous controversies which arose over the ill-defined boundaries of the original colonies. These disputes were usually resolved by negotiation, with the resulting agreement subject to approval by the Crown.[1778] When the political ties with Britain were broken the Articles of Confederation provided for appeal to Congress in all disputes between two or more States over boundaries or "any cause whatever"[1779] and required the approval of Congress for any "treaty confederation or alliance" to which a State should be a party.[1780] The framers of the Constitution went further. By the first clause of this section they laid down an unqualified prohibition against "any treaty, alliance or confederation"; and by the third clause they required the consent of Congress for "any agreement or compact." The significance of this distinction was pointed out by Chief Justice Taney in Holmes _v._ Jennison.[1781] "As these words ('agreement or compact') could not have been idly or superfluously used by the framers of the Constitution, they cannot be construed to mean the same thing with the word treaty. They evidently mean something more, and were designed to make the prohibition more comprehensive. * * * The word 'agreement,' does not necessarily import and direct any express stipulation; nor is it necessary that it should be in writing. If there is a verbal understanding, to which both parties have assented, and upon which both are acting, it is an 'agreement.' And the use of all of these terms, 'treaty,' 'agreement,' 'compact,' show that it was the intention of the framers of the Constitution to use the broadest and most comprehensive terms; and that they anxiously desired to cut off all connection or communication between a State and a foreign power; and we shall fail to execute that evident intention, unless we give to the word 'agreement' its most extended signification; and so apply it as to prohibit every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties."[1782] But in Virginia _v._ Tennessee,[1783] decided more than a half century later, the Court shifted position, holding that the unqualified prohibition of compacts and agreements between States without the consent of Congress did not apply to agreements concerning such minor matters as adjustments of boundaries, which have no tendency to increase the political powers of the contractant States or to encroach upon the just supremacy of the United States. This divergence of doctrine may conceivably have interesting consequences.[1784] Subject Matter of Interstate Compacts For many years after the Constitution was adopted, boundary disputes continued to predominate as the subject matter of agreements among the States. Since the turn of the twentieth century, however, the interstate compact has been used to an increasing extent as an instrument for State cooperation in carrying out affirmative programs for solving common problems. The execution of vast public undertakings, such as the development of the Port of New York by the Port Authority created by compact between New York and New Jersey, flood control, the prevention of pollution, and the conservation and allocation of water supplied by interstate streams, are among the objectives accomplished by this means.[1785] Another important use of this device was recognized by Congress in the act of June 6, 1934,[1786] whereby it consented in advance to agreements for the control of crime. The first response to this stimulus was the Crime Compact of 1934, providing for the supervision of parolees and probationers, to which forty-five States had given adherence by 1949.[1787] Subsequently Congress has authorized, on varying conditions, compacts touching the production of tobacco, the conservation of natural gas, the regulation of fishing in inland waters, the furtherance of flood and pollution control, and other matters. Moreover, since 1935 at least thirty-six States, beginning with New Jersey, have set up permanent commissions for interstate cooperation, which have led to the formation of a Council of State Governments ("Cosgo" for short), the creation of special commissions for the study of the crime problem, the problem of highway safety, the trailer problem, problems created by social security legislation, etc., and the framing of uniform State legislation for dealing with some of these.[1788] Consent of Congress The Constitution makes no provision as to the time when the consent of Congress shall be given or the mode or form by which it shall be signified.[1789] While the consent will usually precede the compact or agreement, it may be given subsequently where the agreement relates to a matter which could not be well considered until its nature is fully developed.[1790] The required consent is not necessarily an expressed consent; it may be inferred from circumstances.[1791] It is sufficiently indicated, when not necessary to be made in advance, by the approval of proceedings taken under it.[1792] The consent of Congress may be granted conditionally "upon terms appropriate to the subject and transgressing no constitutional limitations."[1793] And in a recent instance it has not been forthcoming at all. In Sipuel _v._ Board of Regents,[1794] decided in 1948, the Supreme Court ruled that the equal protection clause of Amendment XIV requires a State maintaining a law school for white students to provide legal education for a Negro applicant, and to do so as soon as it does for applicants of any other group. Shortly thereafter the governors of 12 Southern States convened to canvass methods for meeting the demands of the Court. There resulted a compact to which 13 State legislatures have consented and by which a Board of Control for Southern Regional Education is set up. Although some early steps were taken toward obtaining Congress's consent to the agreement, the effort was soon abandoned, but without affecting the cooperative educational program, which to date has not been extended to the question of racial segregation.[1795] Finally, Congress does not, by giving its consent to a compact, relinquish or restrict its own powers, as for example, its power to regulate interstate commerce.[1796] Grants of Franchise to Corporation by Two States It is competent for a railroad corporation organized under the laws of one State, when authorized so to do by the consent of the State which created it, to accept authority from another State to extend its railroad into such State and to receive a grant of powers to own and control, by lease or purchase, railroads therein, and to subject itself to such rules and regulations as may be prescribed by the second State. Such legislation on the part of two or more States is not, in the absence of inhibitory legislation by Congress, regarded as within the constitutional prohibition of agreements or compacts between States.[1797] Legal Effect of Interstate Compacts Whenever, by the agreement of the States concerned and the consent of Congress, an interstate compact comes into operation, it has the same effect as a treaty between sovereign powers. Boundaries established by such compacts become binding upon all citizens of the signatory States and are conclusive as to their rights.[1798] Private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without a judicial determination of existing rights.[1799] Valid interstate compacts are within the protection of the obligation of contracts clause and specific enforcement of them is within the original jurisdiction of the Supreme Court.[1800] Congress also has authority to compel compliance with such a compact.[1801] ADDENDUM Nor may a State read herself out of a compact which she has ratified and to which Congress has consented by pleading that under the State's constitution as interpreted by the highest State court she had lacked power to enter into such an agreement and was without power to meet certain obligations thereunder. The final construction of the State constitution in such a case rests with the Supreme Court.[1802] Notes [1] 4 Wheat. 316, 405 (1819). [2] _See_ pp. 378-379. [3] 206 U.S. 46, 82 (1907). [4] 4 Wheat. at 407. [5] Ibid. 411. [6] Ibid. 421. [7] 2 Story, Commentaries, § 1256. _See also_ ibid. §§ 1286 and 1330. [8] 1 Pet. 511 (1828). [9] Ibid. at 542. [10] Ibid. 543. [11] Prigg _v._ Pennsylvania, 16 Pet. 539, 616, 618-619 (1842). [12] Juilliard _v._ Greenman, 110 U.S. 421, 449-450 (1884). _See also_ Justice Bradley's concurring opinion in Knox _v._ Lee, 12 Wall. 457, 565 (1871). [13] United States _v._ Jones, 109 U.S. 513 (1883). [14] United States _v._ Kagama, 118 U.S. 375 (1886). [15] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893). [16] Hines _v._ Davidowitz et al., 312 U.S. 52 (1941). [17] 299 U.S. 304 (1936). [18] Ibid. 315, 316-317, 318 _passim_. For anticipations of this conception of the powers of the National Government in the field of foreign relations, _see_ Penhallow _v._ Doane, 3 Dall. 54, 80, 81 (1795); _also_ ibid. 74 and 76 (argument of counsel); _also_ Chief Justice Taney's opinion in Holmes _v._ Jennison, 14 Pet. 540, 575-576 (1840). [19] Locke, Second Treatise on Government, Chapter XI § 141 (1691). [20] 276 U.S. 394 (1928). [21] Ibid. 405, 406. [22] Wayman _v._ Southard, 10 Wheat. 1 (1825). [23] The Brig Aurora, 7 Cr. 382 (1813). [24] Wayman _v._ Southard, 10 Wheat. 1, 42 (1825). [25] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 398 (1940); United States _v._ Rock Royal Co-operative, 307 U.S. 533, 577 (1939). [26] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 576 (1939). [27] Schechter Poultry Corp. _v._ United States, 295 U.S. 495, 539 (1935); Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 144 (1941); American Power & Light Co. _v._ Securities & Exchange Comm., 329 U.S. 90, 107, 108 (1946). _Cf._ Wichita R. & L. Co. _v._ Public Utilities Comm., 260 U.S. 48, 59 (1922). [28] New York Cent. Securities Corp. _v._ United States, 287 U.S. 12, 24 (1932). [29] Federal Radio Commission _v._ Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285 (1933); National Broadcasting Co. _v._ United States, 319 U.S. 190, 225 (1943); Federal Communications Commission _v._ Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940). [30] Lichter _v._ United States, 334 U.S. 742, 783 (1948). [31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter Poultry Corp. _v._ United States, 295 U.S. 495 (1985). [32] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939); Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles _v._ Willingham, 321 U.S. 503, 514 (1944); Yakus _v._ United States, 321 U.S. 414, 424 (1944). [33] Fahey _v._ Mallonee, 332 U.S. 245 (1947). [34] Ibid. 250. [35] Ex parte Kollock, 165 U.S. 526 (1897). [36] Buttfield _v._ Stranahan, 192 U.S. 470 (1904). [37] United States _v._ Grimaud, 220 U.S. 506 (1911). [38] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). [39] Currin _v._ Wallace, 306 U.S. 1 (1939). [40] Avent _v._ United States, 266 U.S. 127 (1924). [41] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939). [42] Yakus _v._ United States, 321 U.S. 414 (1944). [43] Bowles _v._ Willingham, 321 U.S. 503 (1944). [44] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 397 (1940). [45] Hirabayashi _v._ United States, 320 U.S. 81, 104 (1943); Korematsu _v._ United States, 323 U.S. 214 (1944). [46] Fahey _v._ Mallonee, 332 U.S. 245 (1947). [47] Mulford _v._ Smith, 307 U.S. 38 (1939). [48] Interstate Commerce Comm'n. _v._ Goodrich Transit Co., 224 U.S. 194, 214 (1912). [49] Although reversing the decision of the State supreme court that rates fixed by the commission were not subject to judicial review, the Supreme Court implicitly sanctioned the exercise of rate-making power by such bodies. Chicago, M. & St. P.R. Co. _v._ Minnesota, 134 U.S. 418 (1890). [50] Hampton & Co. _v._ United States, 276 U.S. 394, 408 (1928). [51] State of Minnesota _v._ Chicago, M. & St. P.R. Co. 38 Minn. 281, 301 (1888). [52] Interstate Commerce Commission _v._ Louisville & N.R. Co., 227 U.S. 88 (1913); New York _v._ United States, 331 U.S. 284, 340-350 (1947) and cases cited therein. _See also_ New York et al. _v._ United States, 342 U.S. 882 (1951). [53] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907). [54] First Nat. Bank _v._ Fellows, ex rel. Union Trust Co., 244 U.S. 416 (1917). [55] Mahler _v._ Eby, 264 U.S. 32 (1924); United States ex rel. Tisi _v._ Tod, 264 U.S. 131 (1924). [56] New York Central Securities Corp. _v._ United States, 287 U.S. 12, 25 (1932). [57] Federal Radio Comm'n. _v._ Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933). [58] National Broadcasting Co. _v._ United States, 319 U.S. 190 (1943). [59] 50 Stat. 246, as amended, 7 U.S.C. § 601 _et seq._ [60] Brannan _v._ Stark, 342 U.S. 451 (1952). Justice Black, with whom Justices Reed and Douglas concurred, dissented, saying: "In striking down these provisions of the Secretary's order, the Court has departed from many principles it has previously announced in connection with its supervision over administrative agents. Under these principles, the Court would refrain from setting aside administrative findings of fact when supported by substantial evidence; we would give weight to the interpretation of a statute by its administrators; when, administrators have interpreted broad statutory terms, such, as here involved, we would recognize that it is our duty to accept this interpretation even though it was not 'the only reasonable one' or the one 'we would have reached had the question arisen in the first instance in judicial proceedings.' Unemployment Comm'n _v._ Aragon, 329 U.S. 143, 153 (1946)." Ibid. 484. [61] Jackson _v._ Roby, 109 U.S. 440 (1883); Erhardt _v._ Boaro, 113 U.S. 527 (1885); Butte City Water Co. _v._ Baker, 196 U.S. 119 (1905). [62] St. Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281, 286 (1908). [63] 295 U.S. 495, 537 (1935). [64] 298 U.S. 238, 311 (1936). [65] Currin _v._ Wallace, 306 U.S. 1 (1939); United States _v._ Rock Royal Co-operative, 307 U.S. 533, 577 (1939). [66] Currin _v._ Wallace, 306 U.S. 1, 15, 16 (1939). [67] 7 Cr. 382 (1813). [68] Ibid. 388. [69] 143 U.S. 649 (1892). [70] Ibid. 691. [71] Ibid. 692, 693. [72] Hampton Jr. & Co. _v._ United States, 276 U.S. 394 (1928). [73] 299 U.S. 304, 312 (1936). [74] Ibid. 319-322.--United States _v._ Chemical Foundation, 272 U.S. 1 (1926) presented the anomalous situation of the United States suing to set aside a sale of alien property sold by one of its agents, the Alien Property Custodian, by authority of the President. The government contended that statute under which the sale was made was unconstitutional because, in giving the President full power of disposition of the property, it delegated legislative power to the President. Declaring that "It was peculiarly within the province of the Commander-in-Chief to know the facts and to determine what disposition should be made of enemy properties in order effectively to carry on the war," the Court affirmed a decree dismissing the suit. Ibid. 12. [75] 293 U.S. 388 (1935). [76] 312 U.S. 126 (1941). [77] Ibid. 144, 145. [78] White House Digest of Provisions of Law Which Would Become Operative upon Proclamation of a National Emergency by the President. The Digest is dated December 11, 1950. It was released to the press on December 16th. 15 F.R. 9029. [79] United States _v._ Grimaud, 220 U.S. 506 (1911). [80] Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398, 404 (1944). [81] United States _v._ Eaton, 144 U.S. 677 (1892). [82] Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398 (1944). [83] Kraus & Bros. _v._ United States, 327 U.S. 614 (1946). [84] Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harvard Law Review, 153, 159-166 (1926). [85] 3 Annals of Congress, 493 (1792). [86] In 1800, Secretary of the Treasury, Oliver Wolcott, Jr., addressed a letter to the House of Representatives advising them of his resignation from office and inviting an investigation of his office. Such an inquiry was made. 10 Annals of Congress 786-788 (1800). [87] 8 Cong. Deb. 2160 (1832). [88] 13 Cong. Deb. 1057 (1836). [89] H.R. Rep. No. 194, 24th Cong., 2d sess., Ser. No. 307, 1, 12, 31 (1837). [90] Cong. Globe, 36th Cong. 1st sess. 1100-1109 (1860). [91] 103 U.S. 168 (1881). [92] 273 U.S. 135, 177, 178 (1927). [93] 4 Cong. Deb. 862, 868, 888, 889 (1827). [94] 103 U.S. 168 (1881). [95] 154 U.S. 447 (1894). [96] Ibid. 478. _See also_ Harriman _v._ Interstate Commerce Commission, 211 U.S. 407 (1908); Smith _v._ Interstate Commerce Commission, 245 U.S. 33 (1917). [97] 273 U.S. 135 (1927). [98] Ibid. 154, 175. [99] 103 U.S. 168, 192-196 (1881). [100] 166 U.S. 661 (1897). [101] Ibid. 670. [102] 273 U.S. 135, 178 (1927). [103] 279 U.S. 263 (1929). [104] Ibid. 295. [105] In re Chapman, 166 U.S. 661 (1897). [106] 279 U.S. 597 (1929). [107] 6 Wheat. 204 (1821). [108] 243 U.S. 521 (1917). [109] Ibid. 542. [110] 294 U.S. 125 (1935). [111] Ibid. 147, 150. [112] 6 Wheat. 204, 231 (1821). [113] In re Chapman, 166 U.S. 661, 671-672 (1897). [114] United States _v._ Bryan, 339 U.S. 323, 330 (1950); United States _v._ Fleischman, 339 U.S. 349 (1950). [115] Christoffel _v._ United States, 338 U.S. 84, 89, 90 (1949). [116] Minor _v._ Happersett, 21 Wall. 162, 171 (1875); Breedlove _v._ Suttles, 302 U.S. 277 (1937). [117] Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley _v._ Sinkler, 179 U.S. 58, 62 (1900); Swafford _v._ Templeton, 185 U.S. 487 (1902); United States _v._ Classic, 313 U.S. 299 (1941). [118] United States _v._ Classic, 313 U.S. 299, 315 (1941). [119] United States _v._ Mosley, 238 U.S. 383 (1915); United States _v._ Saylor, 322 U.S. 385, 387 (1944). [120] United States _v._ Classic, 313 U.S. 299 (1941). [121] United States _v._ Mosley, 238 U.S. 383 (1915). [122] 35 Stat. 1092 (1909); 18 U.S.C. § 51 (1946), superseded by 62 Stat. 696 (1948); 18 U.S.C. § 241 (Supp. II, 1946 ed.). [123] United States _v._ Mosley, 238 U.S. 383 (1915). [124] United States _v._ Saylor, 322 U.S. 385 (1944). [125] United States _v._ Bathgate, 246 U.S. 220 (1918). _See also_ United States _v._ Gradwell, 243 U.S. 476 (1917). [126] Sen. Rep. 904, 74th Cong., 1st sess. (1935); 79 Cong. Rec. 9651-9653 (1935). [127] No. LX. [128] Hinds' Precedents of the House of Representatives, I: §§ 443, 448-458 (1907). [129] 202 U.S. 344 (1906). [130] Ibid. 369-370. [131] Hinds' Precedents of the House of Representatives, I: §§ 474-477 (1907). [132] 69 Cong. Rec. 1718 (1928). [133] Hinds' Precedents of the House of Representatives, I: § 414 (1907). [134] Ibid. §§ 415-417. [135] The part of this clause relating to the mode of apportionment of Representative among the several States, was changed by the Fourteenth Amendment, § 2 (p. 1170) and as to taxes on incomes without apportionment, by the Sixteenth Amendment (p. 1191). [136] Legal Tender Cases, 12 Wall. 457, 536 (1871). [137] 46 Stat. 21 (1929). This same act penalizes refusal to cooperate properly with the census taker by answering his questions and in other ways. 13 U.S.C. 209. [138] The Senate is a "continuing body"--McGrain _v._ Daugherty, 273 U.S. 135, 181-182 (1927). [139] 5 Stat. 491 (1842). This requirement was dropped in 1850 (9 Stat. 428, 432-433) but was renewed in 1862 (12 Stat. 572). _See also_ Joel Francis Paschal, The House of Representatives "Grand Depository of the Democratic Principle", Spring 1952 Issue of Law and Contemporary Problems (Duke University School of Law), 276-289. [140] 14 Stat. 243 (1866). [141] 16 Stat. 144 (1870); 16 Stat. 254 (1870); 17 Stat. 347-349 (1872). [142] 28 Stat. 36 (1894). [143] United States _v._ Reese, 92 U.S. 214 (1876). [144] Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S. 399 (1880); United States _v._ Gale, 109 U.S. 65 (1883). [145] 241 U.S. 565 (1916). [146] Smiley _v._ Holm, 285 U.S. 355 (1932); Koenig _v._ Flynn, 285 U.S. 375 (1932); Carroll _v._ Becker, 285 U.S. 380 (1932). [147] 46 Stat. 21 (1929). [148] 37 Stat. 13, 14 (1911). [149] Wood _v._ Broom, 287 U.S. 1 (1932). [150] 328 U.S. 549 (1946). [151] Ibid. 556, 566. [152] Ibid. 570-571. [153] Ex parte Yarbrough, 110 U.S. 651, 661 (1884); United States _v._ Mosley, 238 U.S. 383 (1915); United States _v._ Saylor, 322 U.S. 385 (1944). [154] In re Coy, 127 U.S. 731, 752 (1888). [155] Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S. 309 (1880); United States _v._ Gale, 109 U.S. 65 (1883). [156] United States _v._ Wurzbach, 280 U.S. 396 (1930). [157] Newberry _v._ United States, 256 U.S. 232 (1921). [158] United States _v._ Classic, 313 U.S. 299, 318 (1941). [159] Barry _v._ United States ex rel. Cunningham, 279 U.S. 597, 616 (1929). [160] In re Loney, 134 U.S. 372 (1890). [161] Cannon's Precedents of the House of Representatives, VI: §§ 72-74, 180 (1936). _Cf._ Newberry _v._ United States, 256 U.S. 232, 258 (1921). [162] Barry _v._ United States ex rel. Cunningham, 279 U.S. 597, 614 (1929). [163] Ibid. 615. [164] Hinds' Precedents of the House of Representatives, IV: § 2895-2905 (1907). [165] 144 U.S. 1 (1892). [166] Ibid. 5-6. [167] Rule V. [168] Hinds' Precedents of the House of Representatives, IV: § 2910-2915 (1907); Cannon's Precedents of the House of Representatives, VI: §§ 645, 646 (1936). [169] United States _v._ Ballin, 144 U.S. 1, 5 (1892). It is, of course, by virtue of its power to determine "rules of its proceedings" that the Senate enables its members to prevent the transaction of business by what are termed "filibusters". The question has been raised whether the rules which support a filibuster are constitutionally compatible with the clause in the preceding section: "A majority of each [House] shall constitute a quorum to do business". _See_ Franklin Burdette, Filibustering in the Senate (Princeton University Press, 1940), 6, 61, 111-112, 227-229, 232-233, 237-238. The Senate is "a continuing body". McGrain _v._ Daugherty, 273 U.S. 139, 181-182 (1927). Hence its rules remain in force from Congress to Congress except as they are changed from time to time, whereas those of the House are readopted at the outset of each new Congress. [170] 286 U.S. 6 (1932). [171] 338 U.S. 84 (1949). [172] Title 22, § 2501. [173] 338 U.S. at 93-95, citing Field _v._ Clark, 143 U.S. 649, 669-673 (1892); United States _v._ Ballin, 144 U.S. 1, 5 (1892); and other cases. [174] Burton _v._ United States, 202 U.S. 344, 356 (1906). [175] In re Chapman, 166 U.S. 661, 669, 670 (1897). [176] I Story, Constitution, § 840, quoted with approval in Field _v._ Clark, 143 U.S. 649, 670 (1892). [177] United States _v._ Ballin, 144 U.S. 1, 4 (1892). [178] Field _v._ Clark, 143 U.S. 649 (1892); Flint _v._ Stone Tracy Co., 220 U.S. 107, 143 (1911). A parallel rule holds in the case of a duly authenticated official notice to the Secretary of State that a State legislature has ratified a proposed amendment to the Constitution. Leser _v._ Garnett, 258 U.S. 130, 137 (1922); _see also_ Coleman _v._ Miller, 307 U.S. 433 (1939). In Christoffel _v._ United States, 338 U.S. 84 (1949), a sharply divided Court ruled that, in a case brought under the Perjury Statute of the District of Columbia (§ 22-2501 of the D.C. Code) for alleged perjurious testimony before a Committee of the House of Representatives, the trial Court erred in charging the jury that it was free to ignore testimony that less than a quorum of the Committee was in attendance when the alleged perjury was committed. Four Justices dissented; and curiously enough only four of the majority were present when the opinion was delivered, the fifth being indisposed. Remarks Justice Jackson in his concurring opinion in United States _v._ Bryan (339 U.S. 323 (1950)), in which the ruling in Christoffel was held to be inapplicable: "It is ironic that this interference with legislative procedures was promulgated by exercise within the Court of the very right of absentee participation denied to Congressmen." Ibid. 344. It seems unlikely that the Christoffel decision seriously undermines Field _v._ Clark. [179] Page _v._ United States, 127 U.S. 67 (1888). [180] Long _v._ Ansell, 293 U.S. 76 (1934). [181] Ibid. 83. [182] United States _v._ Cooper, 4 Dall. 341 (1800). [183] Williamson _v._ United States, 207 U.S. 425, 446 (1908). [184] Kilbourn _v._ Thompson, 103 U.S. 168 (1881). [185] Ibid. [186] 4 Mass. 1 (1808). [187] Kilbourn _v._ Thompson, 103 U.S. 168, 203, 204 (1881). [188] Ibid. 205. [189] Justice Frankfurter for the Court in Tenney _v._ Brandhove, 341 U.S. 367, 377 (1951). Justice Douglas dissented: "* * * I do not agree that all abuses of legislative committees are solely for the legislative body to police. We are dealing here with a right protected by the Constitution--the right of free speech. The charge * * * is that a legislative committee brought the weight of its authority down on respondent for exercising his right of free speech. Reprisal for speaking is as much an abridgment as a prior restraint. If a committee departs so far from its domain [as?] to deprive a citizen of a right protected by the Constitution, I can think of no reason why it should be immune". Ibid. 382. _See also_ Barsky _v._ United States, 167 F. (2d) 241 (1948); certiorari denied, 334 U.S. 843 (1948). [190] Hinds' Precedents of the House of Representatives, I: § 493 (1907); Cannon's Precedents of the House of Representatives, VI: §§ 63, 64 (1936). [191] Hinds' Precedents of the House of Representatives, I: §§ 496-499 (1907). [192] 34 Stat. 948 (1907). [193] 35 Stat. 626 (1909). [194] The situation gave rise to the case of Ex parte Albert Levitt, Petitioner, 302 U.S. 633 (1937). This was the case in which the Court declined to pass upon the validity of Justice Black's appointment. It seems curious that the Court, in rejecting petitioner's application, did not point out that it was being asked to assume original jurisdiction contrary to the decision in Marbury _v._ Madison, 1 Cr. 137 (1803). [195] I Story, Constitution, § 880. [196] Twin City Nat. Bank _v._ Nebeker, 167 U.S. 196 (1897). [197] Millard _v._ Roberts, 202 U.S. 429 (1906). [198] Flint _v._ Stone Tracy Co., 220 U.S. 107, 143 (1911). [199] Rainey _v._ United States, 232 U.S. 310 (1914). [200] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 453 (1899). [201] Edwards _v._ United States, 286 U.S. 482 (1932). On one occasion in 1936, delay in presentation of a bill enabled the President to sign it 23 days after the adjournment of Congress. Schmeckebier, Approval of Bills After Adjournment of Congress, 33 American Political Science Review 52 (1939). [202] Gardner _v._ Collector, 6 Wall. 499 (1868). [203] Ibid. 504. _See also_ Burgess _v._ Salmon, 97 U.S. 381, 383 (1878). [204] Matthews _v._ Zane, 7 Wheat. 164, 211 (1822). [205] Lapeyre _v._ United States, 17 Wall. 191, 198 (1873). [206] Okanogan Indians _v._ United States, 279 U.S. 655 (1929). [207] Wright _v._ United States, 302 U.S. 583 (1938). [208] Missouri P.R. Co. _v._ Kansas, 248 U.S. 276 (1919). [209] 20 Wall. 92, 112, 113 (1874). [210] 12 Stat. 589 (1862). [211] 54th Cong., 2d sess., S. Doc. 1335; Hinds' Precedents of the House of Representatives, IV: § 3483 (1907). [212] _See e.g._, Lend Lease Act of March 11, 1941 (55 Stat. 31); First War Powers Act of December 18, 1941 (55 Stat. 838); Emergency Price Control Act of January 30, 1942 (56 Stat. 23); Stabilization Act of October 2, 1942 (56 Stat. 765); War Labor Disputes Act of June 25, 1943 (57 Stat. 163). [213] Reorganization Act of June 20, 1949 (63 Stat. 203). [214] Reorganization Act of April 3, 1939 (53 Stat. 561). [215] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798). [216] License Tax Cases, 5 Wall. 462, 471 (1867). [217] Brushaber _v._ Union Pac. R.R., 240 U.S. 1 (1916). [218] Ibid. 12. [219] 253 U.S. 245 (1920). [220] 268 U.S. 501 (1925). [221] 307 U.S. 277 (1939). [222] 11 Wall. 113 (1871). [223] Graves _v._ O'Keefe, 306 U.S. 466 (1939). [224] 304 U.S. 405, 414 (1938). [225] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869). [226] United States _v._ Baltimore & O.R. Co., 17 Wall. 322 (1873). [227] 157 U.S. 429 (1895). [228] 4 Wheat. 316 (1819). [229] Indian Motorcycle Co. _v._ United States, 283 U.S. 570 (1931). [230] 12 Wheat. 419, 444 (1827). [231] Snyder _v._ Bettman, 190 U.S. 249, 254 (1903). [232] South Carolina _v._ United States, 199 U.S. 437 (1905). _See also_ Ohio _v._ Helvering, 292 U.S. 360 (1934). [233] 220 U.S. 107 (1911). [234] Greiner _v._ Lewellyn, 258 U.S. 384 (1922). [235] Wheeler Lumber Bridge & Supply Co. _v._ United States, 281 U.S. 572 (1930). [236] University of Illinois _v._ United States, 289 U.S. 48 (1933). [237] Allen _v._ Regents, 304 U.S. 439 (1938). [238] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949). [239] Metcalf _v._ Mitchell, 269 U.S. 514 (1926). [240] Helvering _v._ Powers, 293 U.S. 214 (1934). [241] Willcutts _v._ Bunn, 282 U.S. 216 (1931). [242] Helvering _v._ Mountain Producers Corp., 303 U.S. 376 (1938), overruling Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393 (1932). [243] New York _v._ United States, 326 U.S. 572, 584 (1946), (concurring opinion of Justice Rutledge). [244] 304 U.S. 405 (1938). [245] Ibid. 419-420. [246] 326 U.S. 572 (1946). [247] Ibid. 584. [248] Ibid. 589-590. [249] Ibid. 596. [250] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949). [251] _See also_ article I, section 9, clause 4. [252] LaBelle Iron Works _v._ United States, 256 U.S. 377 (1921); Brushaber _v._ Union P.R. Co., 240 U.S. 1 (1916); Head Money Cases, 112 U.S. 580 (1884). [253] Knowlton _v._ Moore, 178 U.S. 41 (1900). [254] Fernandez _v._ Wiener, 326 U.S. 340 (1945); Riggs _v._ Del Drago, 317 U.S. 95 (1942); Phillips _v._ Commissioner of Internal Revenue, 283 U.S. 589 (1931); Poe _v._ Seaborn, 282 U.S. 101, 117 (1930). [255] Florida _v._ Mellon, 273 U.S. 12 (1927). [256] Downes _v._ Bidwell, 182 U.S. 244 (1901). [257] 194 U.S. 486 (1904). The Court recognized that Alaska was an incorporated territory but took the position that the situation in substance was the same as if the taxes had been directly imposed by a territorial legislature for the support of the local government. [258] License Tax Cases, 5 Wall. 462, 471 (1867). [259] United States _v._ Yuginovich, 256 U.S. 450 (1921). [260] United States _v._ Constantine, 296 U.S. 287, 293 (1935). [261] License Tax Cases, 5 Wall. 462, 471 (1867). [262] Felsenheld _v._ United States, 186 U.S. 126 (1902). [263] In re Kollock, 105 U.S. 526 (1897). [264] United States _v._ Doremus, 249 U.S. 86 (1919). _Cf._ Nigro _v._ United States, 276 U.S. 332 (1928). [265] Sonzinsky _v._ United States, 300 U.S. 506 (1937). [266] McCray _v._ United States, 195 U.S. 27 (1904). [267] Justice Clark speaking for the Court in United States _v._ Sanchez, 340 U.S. 42, 44 (1950). _See also_ Sonzinsky _v._ United States, 300 U.S. 506, 513-514 (1937). [268] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 383 (1940). _See also_ Head Money Cases, 112 U.S. 580, 596 (1884). [269] Bailey _v._ Drexel Furniture Co., 259 U.S. 20 (1922); Hill _v._ Wallace, 259 U.S. 44 (1922); Helwig _v._ United States, 188 U.S. 605 (1903). [270] 296 U.S. 287 (1935). [271] 1 Stat. 24 (1789). [272] 276 U.S. 394 (1928). [273] Ibid. 411-412. [274] III Writings of Thomas Jefferson, 147-149 (Library Edition, 1904). [275] James Francis Lawson, The General Welfare Clause (1926). [276] The Federalist Nos. 30 and 34. [277] Ibid. No. 41. [278] 1 Stat. 229 (1792). [279] 2 Stat. 357 (1806). [280] In an advisory opinion which it rendered for President Monroe at his request on the power of Congress to appropriate funds for public improvements, the Court answered that such appropriations might be properly made under the war and postal powers. _See_ E.F. Albertsworth, "Advisory Functions in the Supreme Court," 23 Georgetown L.J. 643, 644-647 (1935). Monroe himself ultimately adopted the broadest view of the spending power, from which, however, he carefully excluded any element of regulatory or police power. _See_ his "Views of the President of the United States on the Subject of Internal Improvements," of May 4, 1822, 2 Richardson, Messages and Papers of the Presidents, 713-752. [281] The Council of State Governments, Federal Grants-in-Aid, 6-14 (1949). [282] 127 U.S. 1 (1888). [283] 255 U.S. 180 (1921). [284] 262 U.S. 447 (1923). _See also_ Alabama Power Co. _v._ Ickes, 302 U.S. 464 (1938). [285] 160 U.S. 668 (1896). [286] Ibid. 681. [287] 297 U.S. 1 (1936). _See also_ Cleveland _v._ United States, 323 U.S. 329 (1945). [288] 297 U.S. 1, 65, 66 (1936). [289] Justice Stone, speaking for himself and two other Justices, dissented on the ground that Congress was entitled when spending the national revenues for the "general welfare" to see to it that the country got its money's worth thereof, and that the condemned provisions were "necessary and proper" to that end. United States _v._ Butler, 297 U.S. 1, 84-86 (1936). [290] 301 U.S. 548 (1937). [291] Ibid. 591. [292] Ibid. 590. [293] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937). [294] 301 U.S. 619 (1937). [295] 301 U.S. 548, 589, 590 (1937). [296] 330 U.S. 127 (1947). [297] 54 Stat. 767 (1940). [298] 330 U.S. 127, 143. [299] United States _v._ Realty Co., 163 U.S. 427 (1896); Pope _v._ United States, 323 U.S. 1, 9 (1944). [300] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937). [301] Cr. 358 (1805). [302] Ibid. 396. [303] 2 Madison, Notes on the Constitutional Convention, 81 (Hunt's ed. 1908). [304] Ibid. 181. [305] Legal Tender Cases, 12 Wall. 457 (1871), overruling Hepburn _v._ Griswold, 8 Wall. 603 (1870). [306] Perry _v._ United States, 294 U.S. 330, 351 (1935). _See also_ Lynch _v._ United States, 292 U.S. 571 (1934). [307] Prentice and Egan, The Commerce Clause of the Federal Constitution (1898) 14. The balance began inclining the other way with the enactment of the Interstate Commerce Act in 1887. [308] 9 Wheat. 1, 189-192 (1824). _Cf._ Webster for the appellant: "Nothing was more complex than commerce; and in such an age as this, no words embraced a wider field than _commercial_ regulation. Almost all the business and intercourse of life may be connected, incidently, more or less, with commercial regulations." (ibid. 9-10); also Justice Johnson, in his concurring opinion: "Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects, would not possess power to regulate commerce." (ibid. 229-230). "It is all but impossible in our own age to sense fully its eighteenth-century meaning (i.e., the meaning of commerce). The Eighteenth Century did not separate by artificial lines aspects of a culture which are inseparable. It had no lexicon of legalisms extracted from the law reports in which judicial usage lies in a world apart from the ordinary affairs of life. Commerce was then more than we imply now by business or industry. It was a name for the economic order, the domain of political economy, the realm of a comprehensive public policy. It is a word which makes trades, activities and interests an instrument in the culture of a people. If trust was to be reposed in parchment, it was the only word which could catch up into a single comprehensive term all activities directly affecting the wealth of the nation," Walton H. Hamilton and Douglass Adair, The Power to Govern, 62-63 (New York: 1937). [309] Ibid. 191. [310] 9 Wheat. 1, 193 (1824). [311] _See_ Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421 (1856); Mobile _v._ Kimball, 102 U.S. 691 (1881); Covington Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894); Kelley _v._ Rhoads, 188 U.S. 1 (1903); United States _v._ Hill, 248 U.S. 420 (1919); Edwards _v._ California, 314 U.S. 160 (1941). [312] Pensacola Tel. Co. _v._ Western Union Tel. Co., 96 U.S. 1, 9 (1878); International Text Book Co. _v._ Pigg, 217 U.S. 91, 106-107 (1910); Western Union Tel. Co. _v._ Foster, 247 U.S. 105 (1918); Federal Radio Com. _v._ Nelson Bros., 289 U.S. 266 (1933). [313] Swift & Co. _v._ United States, 196 U.S. 375, 398-399 (1905); Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282, 290-291 (1921); Stafford _v._ Wallace, 258 U.S. 495 (1922); Federal Trade Com. _v._ Pacific States Paper Trade Assoc., 273 U.S. 52, 64-65 (1927). [314] Kidd _v._ Pearson, 128 U.S. 1 (1888); Oliver Iron Co. _v._ Lord, 262 U.S. 172 (1923). [315] Paul _v._ Virginia, 8 Wall. 168 (1869). _See also_ New York L. Ins. Co. _v._ Deer Lodge County, 231 U.S. 495 (1913); New York L. Ins. Co. _v._ Cravens, 178 U.S. 389, 401 (1900); Fire Assoc. of Philadelphia _v._ New York, 119 U.S. 110 (1886); Bothwell _v._ Buckbee-Mears Co., 275 U.S. 274 (1927); Metropolitan Casualty Ins. Co. _v._ Brownell, 294 U.S. 580 (1935). [316] Federal Baseball Club _v._ National League, 259 U.S. 200 (1922). [317] Blumenstock Bros. _v._ Curtis Pub. Co., 252 U.S. 436 (1920). [318] Williams _v._ Fears, 179 U.S. 270 (1900). A contract entered into for the erection of a factory which was to be supervised and operated by the officers of a foreign corporation was held not a transaction of interstate commerce in the constitutional sense merely because of the fact that the products of the factory are largely to be sold and shipped to other factories. Diamond Glue Co. _v._ United States Glue Co., 187 U.S. 611, 616 (1903). In Browning _v._ Waycross, 233 U.S. 16 (1914), it was held that the installation of lightning rods sold by a foreign corporation was not interstate commerce, although provided for in the contract of purchase. Similarly in General Railway Signal Co. _v._ Virginia, 246 U.S. 500 (1918), where a foreign corporation installed signals in Virginia, bringing in materials, supplies, and machinery from without the State, the Court held that local business was involved, separate and distinct from interstate commerce, and subject to the licensing power of the State. However, in an interstate contract for the sale of a complicated ice-making plant, where it was stipulated that the parts should be shipped into the purchaser's State and the plant there assembled and tested under the supervision of an expert to be sent by the seller, it was held that services of the expert did not constitute the doing of a local business subjecting the seller to regulations of Texas concerning foreign corporations. York Mfg. Co. _v._ Colley, 247 U.S. 21 (1918). _See also_ Kansas City Structural Steel Co. _v._ Arkansas, 269 U.S. 148 (1925). [319] Associated Press _v._ United States, 326 U.S. 1 (1945). [320] American Medical Association _v._ United States, 317 U.S. 519 (1943). _Cf._ United States _v._ Oregon State Medical Society, 343 U.S. 326 (1952). [321] United States _v._ South-Eastern Underwriters Assoc, 322 U.S. 533 (1944). The interstate character of the insurance business as today organized and carried on is stressed, although its intrastate elements are not overlooked. The Court's business is to determine in each case whether "the competing * * * State and national interests * * * can be accommodated." Ibid. 541 and 548. [322] Article I, § 8, cl. 18. [323] _See infra_ CONGRESSIONAL REGULATIONS OF PRODUCTION AND INDUSTRIAL RELATIONS. [324] 6 Wheat. 264, 413 (1821). [325] 9 Wheat. 1, 195 (1824). [326] New York _v._ Miln, 11 Pet. 102 (1837), overturned in Henderson _v._ New York, 92 U.S. 259 (1876); License Cases, 5 How. 504, 573-574, 588, 613 (1847); Passenger Cases, 7 How. 283, 399-400, 465-470 (1849); The Passaic Bridges, 3 Wall. 782 (Appendix), 793 (1866); United States _v._ Dewitt, 9 Wall. 41, 44 (1870); Patterson _v._ Kentucky, 97 U.S. 501, 503 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd _v._ Pearson, 128 U.S. 1 (1888); Illinois Central R. Co. _v._ McKendree, 203 U.S. 514 (1906); Keller _v._ United States, 213 U.S. 138, 144-149 (1909); Hammer _v._ Dagenhart, 247 U.S. 251 (1918). _See also infra._ [327] United States _v._ Wrightwood Dairy Co., 315 U.S. 110, 119 (1942). [328] Gibbons _v._ Ogden, 9 Wheat. 1, 196. Commerce "among the several States" does not comprise commerce of the District of Columbia nor the territories of the United States. Congress's power over their commerce is an incident of its general power over them. Stoutenburgh _v._ Hennick, 129 U.S. 141 (1889); Atlantic Cleaners and Dyers, Inc. _v._ United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed. Cas. No. 2067 (1865). Transportation between two points in the same State, when a large part of the route is a loop outside the State, is "commerce among the several States." Hanley _v._ Kansas City Southern R. Co., 187 U.S. 617 (1903); followed in Western Union Telegraph Co. _v._ Speight, 254 U.S. 17 (1920), as to a message sent from one point to another in North Carolina via a point in Virginia. [329] 9 Wheat. 1, 196-197. [330] Champion _v._ Ames (Lottery Case), 188 U.S. 321, 373-374. [331] Brolan _v._ United States, 236 U.S. 216, 222 (1915). [332] Thurlow _v._ Massachusetts (License Cases), 5 How. 504, 578 (1847). [333] Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577, 587 (1895). [334] United States _v._ Carolene Products Co., 304 U.S. 144, 147-148 (1938). _See also infra._ [335] The "Daniel Ball," 10 Wall. 557, 564 (1871). [336] Mobile County _v._ Kimball, 102 U.S. 691, 696, 697 (1881). [337] Second Employers' Liability Cases, 223 U.S. 1, 47, 53-54 (1912). [338] The above case. And _see infra_. [339] 9 Wheat. 1, 217, 221 (1824). [340] Pensacola Teleg. Co. _v._ Western Union Teleg. Co., 96 U.S. 1 (1878). _See also_ Western Union Teleg. Co. _v._ Texas, 105 U.S. 460 (1882). [341] Ibid. 9. "Commerce embraces appliances necessarily employed in carrying on transportation by land and water."--Chicago & N.W.R. Co. _v._ Fuller, 17 Wall. 560, 568 (1873). [342] "No question is presented as to the power of the Congress, in its regulation of interstate commerce, to regulate radio communications." Chief Justice Hughes speaking for the Court in Federal Radio Com _v._ Nelson Bros. B. & M. Co., 289 U.S. 266, 279 (1933). _Said_ Justice Stone, speaking for the Court in 1936: "Appellant is thus engaged in the business of transmitting advertising programs from its stations in Washington to those persons in other States who 'listen in' through the use of receiving sets. In all essentials its procedure does not differ from that employed in sending telegraph or telephone messages across State lines, which is interstate commerce. Western Union Teleg. Co. _v._ Speight, 254 U.S. 17 (1920); New Jersey Bell Teleph. Co. _v._ State Bd. of Taxes & Assessments, 280 U.S. 338 (1930); Cooney _v._ Mountain States Teleph. & Teleg. Co., 294 U.S. 384 (1935); Pacific Teleph. & Teleg. Co. _v._ Tax Commission, 297 U.S. 403 (1936). In each, transmission is effected by means of energy manifestations produced at the point of reception in one State which are generated and controlled at the sending point in another. Whether the transmission is effected by the aid of wires, or through a perhaps less well understood medium, 'the ether,' is immaterial, in the light of those practical considerations which have dictated the conclusion that the transmission of information interstate is a form of 'intercourse,' which is commerce. _See_ Gibbons _v._ Ogden, 9 Wheat. 1, 189." Fisher's Blend Station _v._ Tax Commission, 297 U.S. 650, 654-655 (1936). [343] 13 How. 518. [344] 10 Stat. 112 (1852). [345] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 430 (1856). "It is Congress, and not the Judicial Department, to which the Constitution has given the power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on this subject." Parkersburg & O. River Transportation Co. _v._ Parkersburg, 107 U.S. 691, 701 (1883). _See also_ Prudential Insurance Co. _v._ Benjamin, 328 U.S. 408 (1946); and Robertson _v._ California, 328 U.S. 440 (1946). [346] 3 Wall. 713. [347] Ibid. 724-725. [348] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907). _See also_ Monongahela Bridge Co. _v._ United States, 216 U.S. 177 (1910); and Wisconsin _v._ Illinois, 278 U.S. 367 (1929). Of collateral interest are the following: South Carolina _v._ Georgia, 93 U.S. 4, 13 (1876); Bedford _v._ United States, 192 U.S. 217 (1904); Jackson _v._ United States, 230 U.S. 1 (1913); United States _v._ Arizona, 295 U.S. 174 (1935). [349] Gibson _v._ United States, 166 U.S. 269 (1897). _See also_ Newport & Cincinnati Bridge Co. _v._ United States, 105 U.S. 470 (1882); United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899); United States _v._ Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); Seattle _v._ Oregon & W.R. Co., 255 U.S. 56, 63 (1921); Economy Light & Power Co. _v._ United States, 256 U.S. 113 (1921); United States _v._ River Rouge Improv. Co., 269 U.S. 411, 419 (1926); Henry Ford & Son _v._ Little Falls Fibre Co., 280 U.S. 369 (1930); United States _v._ Commodore Park, 324 U.S. 386 (1945). [350] United States _v._ Cress, 243 U.S. 316 (1917). [351] United States _v._ Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 597 (1941); United States _v._ Willow River Power Co., 324 U.S. 499 (1945). [352] United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899); and _cf._ below the discussion of United States _v._ Appalachian Electric P. Co., 311 U.S. 377 (1940). [353] The "Daniel Ball" _v._ United States, 10 Wall. 557 (1871). [354] Ibid. 560. [355] Ibid. 565. [356] Ibid. 566. "The regulation of commerce implies as much control, as far-reaching power, over an artificial as over a natural highway." Justice Brewer for the Court in Monongahela Navigation Co. _v._ United States, 148 U.S. 312, 342 (1893). [357] Congress had the right to confer upon the Interstate Commerce Commission the power to regulate interstate ferry rates. (New York C. & H.R.R. Co. _v._ Board of Chosen Freeholders, 227 U.S. 248 (1913)); and to authorize the Commission to govern the towing of vessels between points in the same State but partly through waters of an adjoining State (Cornell Steamboat Co. _v._ United States, 321 U.S. 634 (1944)). _Also_ Congress's power over navigation extends to persons furnishing wharfage, dock, warehouse, and other terminal facilities to a common carrier by water. Hence an order of the United States Maritime Commission banning certain allegedly "unreasonable practices" by terminals in the Port of San Francisco, and prescribing schedules of maximum free time periods and of minimum charges was constitutional. (California _v._ United States, 320 U.S. 577 (1944)). The same power also comprises regulation of the registry, enrollment, license, and nationality of ships and vessels; the method of recording bills of sale and mortgages thereon; the rights and duties of seamen; the limitations of the responsibility of shipowners for the negligence and misconduct of their captains and crews; and many other things of a character truly maritime. _See_ Rodd _v._ Heartt (The "Lottawanna"), 21 Wall. 558, 577 (1875); Providence & N.Y.S.S. Co. _v._ Hill Mfg. Co., 109 U.S. 578, 589 (1883); Old Dominion S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907); O'Donnell _v._ Great Lakes Dredge & Dock Co., 318 U.S. 36 (1943). _See also_ below article III, § 2, (Admiralty and Maritime clause). [358] Pollard _v._ Hagan, 3 How. 212 (1845); Shively _v._ Bowlby, 152 U.S. 1 (1894). "The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively; and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States." 3 How. 212, headnote 3. [359] Green Bay & M. Canal Co. _v._ Patten Paper Co., 172 U.S. 58, 80 (1898). [360] 229 U.S. 53 (1913). [361] Ibid. 72-73, citing Kaukauna Water Power Co. _v._ Green Bay & M. Canal Co., 142 U.S. 254 (1891). [362] 283 U.S. 423. [363] 311 U.S. 377. [364] 283 U.S. at 455, 456. [365] 311 U.S. at 407, 409-410. [366] 311 U.S. at 426. [367] Oklahoma ex rel. Phillips _v._ Atkinson Co., 313 U.S. 508, 523-534 _passim_ (1941). [368] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936). _See infra._ [369] 12 Stat. 489 (1862). [370] Thomson _v._ Pacific Railroad, 9 Wall. 579, 589 (1870); California _v._ Central Pacific Railroad, 127 U.S. 1, 39 (1888); Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890); Luxton _v._ North River Bridge Co., 153 U.S. 525, 530 (1894). [371] 14 Stat. 66 (1866). In his first annual message (December 4, 1865), President Johnson had asked Congress "to prevent any selfish impediment [by the States] to the free circulation of men and merchandise." 6 Richardson, Messages and Papers of the Presidents, 362. [372] 14 Stat. 221; Pensacola Teleg. Co. _v._ Western Union Teleg. Co., 96 U.S. 1, 3-4, 11 (1878). [373] R.S. Secs. 4386-4390; replaced today by the Live Stock Transportation Act of 1906 (34 Stat. 607). [374] 94 U.S. 113 (1877). [375] 118 U.S. 557. [376] 24 Stat. 379 (1887). [377] 154 U.S. 447. [378] Interstate Commerce Com. _v._ Alabama Midland R. Co., 168 U.S. 144, 176 (1897). _See also_ Cincinnati, N.O. & T.P.R. Co. _v._ Interstate Commerce Commission, 162 U.S. 184 (1896). [379] 34 Stat. 584. [380] 36 Stat. 539 (1910). [381] By the Federal Communications Act of 1934 (48 Stat. 1081), this jurisdiction was handed over to the Federal Communications Commission, created by the act. [382] 41 Stat. 474 § 400; 488 § 422. The act must today be read in conjunction with the Transportation Act of 1940 (54 Stat. 898), which "was intended, together with the old law, to provide a completely integrated interstate regulatory system over motor, railroad, and water carriers." United States _v._ Pennsylvania R. Co., 323 U.S. 612, 618-619 (1945). [383] Houston E. & W.T.R. Co. _v._ United States (Shreveport Case), 234 U.S. 342 (1914). Forty States, through their Attorneys General, intervened in the case against the Commission's order. [384] Ibid. 351-352. [385] Ibid. 353. _See_ to the same effect American Express Co. _v._ Caldwell, 244 U.S. 617, 627 (1917); Pacific Teleph. & Teleg. Co. _v._ Tax Commission (Washington), 297 U.S. 403 (1936); Weiss _v._ United States, 308 U.S. 321 (1939); Bethlehem Steel Co. _v._ New York Labor Relations Bd., 330 U.S. 767, 772 (1947); and United States _v._ Walsh, 331 U.S. 432, 438 (1947). [386] 257 U.S. 563 (1922). [387] In North Carolina _v._ United States, 325 U.S. 507 (1945), the Court disallowed as _ultra vires_ an order of the Interstate Commerce Commission, setting aside State-prescribed intrastate passenger rates, on the ground that it was unsupported by clear findings and evidence sufficient to show its necessity. Among the various provisions of the Interstate Commerce Commission Act that have been sustained in specific decisions are the following: a provision penalizing shippers for obtaining transportation at less than published rates, Armour Packing Co. _v._ United States, 209 U.S. 56 (1908); the so-called "commodities clause" of the Hepburn Act of June 29, 1906, construed as prohibiting the hauling of commodities in which the carrier had at the _time of haul_ a proprietary interest, United States _v._ Delaware & H. Co., 213 U.S. 366 (1909); a provision of the same act abrogating life passes, Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911); a provision of the same act authorizing the Commission to regulate the entire system of bookkeeping of interstate carriers, including intrastate accounts, Interstate Commerce Commission _v._ Goodrich Transit Co., 224 U.S. 194 (1912); the "long and short haul" clause of the Interstate Commerce Act, United States _v._ Atchison, T. & S.F.R. Co. (Intermountain Rate Cases), 234 U.S. 476 (1914); an order of the Commission establishing the so-called uniform zone or block system of express rates, American Express Co. _v._ South Dakota ex rel. Caldwell, 244 U.S. 617 (1917); an order of the Commission directing the abandonment of an intrastate branch of an interstate railroad, Colorado _v._ United States, 271 U.S. 153 (1926); an order of the Commission fixing rates of a transportation company operating solely in the District of Columbia, on the ground that its carriage of passengers constituted part of an interstate movement, United States _v._ Capital Transit Co., 338 U.S. 286 (1949). [388] United States _v._ Ohio Oil Co. (Pipe Line Cases), 234 U.S. 548 (1914). [389] _See also_ State Corp. Commission _v._ Wichita Gas Co., 290 U.S. 561 (1934); Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921); United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); Pennsylvania _v._ West Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett _v._ Kansas Natural Gas Co., 265 U.S. 298 (1924). [390] Public Utilities Com. _v._ Attleboro Steam and Electric Co., 273 U.S. 83 (1927). _See also_ Utah Power & Light Co. _v._ Pfost, 286 U.S. 165 (1932). [391] 49 Stat. 838. [392] The Natural Gas Act of 1938, 52 Stat. 821. [393] 315 U.S. 575 (1942). [394] Ibid. 582. Sales to distributors by a wholesaler of natural gas which is delivered to it from an out-of-State source are subject to the rate-making powers of the Federal Power Commission. Colorado-Wyoming Co. _v._ Comm'n., 324 U.S. 626 (1945). _See also_ Illinois Natural Gas Co. _v._ Central Illinois Pub. Serv. Co., 314 U.S. 498 (1942); _also_ Federal Power Commission _v._ East Ohio Gas Co., 338 U.S. 464, decided January 9, 1950, where it was held that a natural gas company which, while operating exclusively in one State, sold there directly to consumers gas transported into the State through the interstate lines of other companies, "a natural gas company" within the meaning of the act of 1938, and so could be required by the Commission to keep uniform accounts and submit reports. [395] 48 Stat. 1064. [396] 49 Stat. 543; since amended in some respects in 1938 (52 Stat. 973) and 1940 (54 Stat. 735). [397] 52 Stat. 973. [398] 27 Stat. 531. As early as 1838 laws were passed requiring the installation of safety devices on steam vessels. 5 Stat. 304 and 626. Along with the Safety Appliance Acts mention should also be made of acts requiring the use of ashpans on locomotives (35 Stat. 476 (1908)); the inspection of boilers (36 Stat. 913 (1911) and 38 Stat. 1192 (1915)); the use of ladders, drawbars, etc., on cars (36 Stat. 298 (1910)); etc. [399] 32 Stat. 943. [400] 222 U.S. 20 (1911). [401] Ibid. 26-27. _See also_ Texas & P.R. Co. _v._ Rigsby, 241 U.S. 33 (1916); and United States _v._ California, 297 U.S. 175 (1936). In the latter case the intrastate railway involved was property of the State. [402] 34 Stat. 1415. [403] Baltimore & O.R. Co. _v._ Interstate Commerce Com., 221 U.S. 612, 618-619 (1911). [404] 34 Stat. 232, disallowed in part in Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908); 35 Stat. 65, sustained in the Second Employers' Liability Cases (Mondou _v._ New York, N.H. & H.R. Co.), 223 U.S. 1 (1912). [405] _See_ 223 U.S. at 19-22. [406] Ibid. 48. Because the injured employee must, in order to benefit from the act, be employed at the time of his injury "in interstate commerce," the Court's application of it has given rise to some narrow distinctions. _See_ Illinois Central R. Co. _v._ Peery, 242 U.S. 292 (1916); New York Central R. Co. _v._ White, 243 U.S. 188 (1917); Chicago, B. & Q.R. Co. _v._ Harrington, 241 U.S. 177 (1916); Louisville & N.R. Co. _v._ Parker, 242 U.S. 13 (1916); Illinois Central R. Co. _v._ Behrens, 233 U.S. 473 (1914); St. Louis, S.F. & T.R. Co. _v._ Seale, 229 U.S. 156 (1913); Pedersen _v._ Delaware, L. & W.R. Co., 229 U.S. 146 (1913); Shanks _v._ Delaware, L. & W.R. Co., 239 U.S. 556 (1916); Lehigh Valley R. Co. _v._ Barlow, 244 U.S. 183 (1917); Southern R. Co. _v._ Puckett, 244 U.S. 571 (1917); Reed _v._ Director General of Railroads, 258 U.S. 92 (1922). That Congress might "legislate as to the qualifications, duties, and liabilities of employes and others on railway trains engaged in that [interstate] commerce," was stated by the Court in Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96, 99 (1888). [407] 208 U.S. 161 (1908). [408] 30 Stat. 424. [409] 44. Stat. 577. [410] Texas & N.O.R. Co. _v._ Brotherhood of R. & S.S. Clerks, 281 U.S. 548 (1930). The provision of Railway Labor Act of 1926 (44 Stat. 577), preventing interference by either party with organization or designation of representatives by the other, is within the constitutional authority of Congress. Similarly, "back shop" employees of an interstate carrier, who engaged in making heavy repairs on locomotives and cars withdrawn from service for that purpose for long periods (an average of 105 days for locomotives and 109 days for cars), were held to be within the terms of the act as amended in 1934 (48 Stat. 1185). "The activities in which these employees are engaged have such a relation to the other confessedly interstate activities of the * * * [carrier] that they are to be regarded as a part of them. All taken together fall within the power of Congress over interstate commerce." Virginian R. Co. _v._ System Federation No. 40, 300 U.S. 515, 556 (1937). By the Adamson Act of 1916 a temporary increase in wages was imposed upon the railways of the country in order to meet a sudden threat to strike by important groups of their employees. The act was assailed on the dual ground that it was not a regulation of commerce among the States and that it was violative of the carriers' rights under the Fifth Amendment. A closely divided Court, speaking through Chief Justice White, answered both objections by pointing to the magnitude of the emergency which had threatened the country with commercial paralysis and grave loss and suffering. To the familiar argument that "emergency may not create power" (Ex parte Milligan, 4 Wall. 2 (1806)), the Chief Justice answered that "it may afford a reason for exerting a power already enjoyed." A further answer to objections based on the rights of carriers under the Fifth Amendment, particularly the right of "freedom of contract," was that the situation met by the statute had arisen in consequence of a failure to exercise these rights--a far from satisfactory answer, as the dissent pointed out, since one element of a right is freedom of choice regarding its use or nonuse. Wilson _v._ New, 243 U.S. 332, 387 (1917). [411] 48 Stat. 1283. [412] 295 U.S. 330 (1935). [413] Ibid. 374. [414] Ibid. 384. [415] 326 U.S. 446 (1946). Indeed, in a case decided in June, 1948, Justice Rutledge, speaking for a majority of the Court, listed the Alton case as one "foredoomed to reversal," though the formal reversal has never taken place. _See_ Mandeville Is. Farms _v._ American C.S. Co., 334 U.S. 219, 230 (1948). [416] 250 U.S. 199 (1919). [417] Ibid. 203-204. [418] 26 Stat. 209 (1890). [419] 156 U.S. 1 (1895). [420] Ibid. 13. [421] 156 U.S. 1, 13-16 (1895). "Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate result may effect external commerce, comparatively little of business operations and affairs would be left for State control." [422] Ibid. 17. The doctrine of the case simmered down to the proposition that commerce was transportation only; a doctrine which Justice Harlan undertook to refute in his notable dissenting opinion: "Interstate commerce does not, therefore, consist in transportation simply. It includes the purchase and sale of articles that are intended to be transported from one State to another--every species of commercial intercourse among the States and with foreign nations." (p. 22). "Any combination, therefore, that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold to persons in other States or to be carried to other States--a freedom that cannot exist if the right to buy and sell is fettered by unlawful restraints that crush out competition--affects, not incidentally, but directly, the people of all the States; and the remedy for such an evil is found only in the exercise of powers confided to a government which, this court has said, was the government of all, exercising powers delegated by all, representing all, acting for all. McCulloch _v._ Maryland, 4 Wheat. 316, 405." (p. 33). "It is said that manufacture precedes commerce and is not a part of it. But it is equally true that when manufacture ends, that which has been manufactured becomes a subject of commerce; that buying and selling succeed manufacture, come into existence after the process of manufacture is completed, precede transportation, and are as much commercial intercourse, where articles are bought _to be_ carried from one State to another, as is the manual transportation of such articles after they have been so purchased. The distinction was recognized by this court in Gibbons _v._ Ogden, where the principal question was whether commerce included navigation. Both the Court and counsel recognized buying and selling or barter _as included in commerce_. * * * The power of Congress covers and protects the absolute freedom of such intercourse and trade among the States as may or must succeed manufacture and precede transportation from the place of purchase." (p. 35-36). "When I speak of trade I mean the buying and selling of articles of every kind that are recognized articles of interstate commerce. Whatever improperly obstructs the free course of interstate intercourse and trade, as involved in the buying and selling of articles to be carried from one State to another, may be reached by Congress, under its authority to regulate commerce among the States." (p. 37). "If the national power is competent to repress _State_ action in restraint of interstate trade as it may be involved in purchases of refined sugar to be transported from one State to another State, surely it ought to be deemed sufficient to prevent unlawful restraints attempted to be imposed by combinations of corporations or individuals upon those identical purchases; otherwise, illegal combinations of corporations or individuals may--so far as national power and interstate commerce are concerned--do, with impunity, what no State can do." (p. 38). "Whatever a State may do to protect its completely interior traffic or trade against unlawful restraints, the general government is empowered to do for the protection of the people of all the States--for this purpose one people--against unlawful restraints imposed upon interstate traffic or trade in articles that are to enter into commerce among the several States." (p. 42). [423] 175 U.S. 211 (1899). [424] 196 U.S. 375.--The Sherman Act was applied to break up combinations of interstate carriers in United States _v._ Trans-Missouri Freight Asso., 166 U.S. 290 (1897); United States _v._ Joint-Traffic Asso., 171 U.S. 505 (1898); and Northern Securities Co. _v._ United States, 193 U.S. 197 (1904). In the first of these cases the Court was confronted with the contention that the act had been intended only for the industrial combinations, and hence was not designed to apply to the railroads, for whose governance the Interstate Commerce Act had been enacted three years prior. Justice Peckham answered the argument by saying that "to exclude agreements as to rates by competing railroads * * * would leave [very] little for the act to take effect upon," referring in this connection to the decision in the Sugar Trust Case, 166 U.S. at 313. Alluding in his opinion for the Court in Mandeville Island Farms _v._ American C.S. Co., 334 U.S. 219 (1948) to the Sugar Trust Case, Justice Rutledge said: "Like this one, that case involved the refining and interstate distribution of sugar. But because the refining was done wholly within a single state, the case was held to be one involving 'primarily' only 'production' or 'manufacturing,' although the vast part of the sugar produced was sold and shipped interstate, and this was the main end of the enterprise. The interstate distributing phase, however, was regarded as being only 'incidentally,' 'indirectly,' or 'remotely' involved; and to be 'incidental,' 'indirect,' or 'remote' was to be, under the prevailing climate, beyond Congress' power to regulate, and hence outside the scope of the Sherman Act. _See_ Wickard _v._ Filburn, 317 U.S. at 119 et seq. (1942). "The _Knight_ decision made the statute a dead letter for more than a decade and, had its full force remained unmodified, the Act today would be a weak instrument, as would also the power of Congress, to reach evils in all the vast operations of our gigantic national industrial system antecedent to interstate sale and transportation of manufactured products. Indeed, it and succeeding decisions, embracing the same artificially drawn lines, produced a series of consequences for the exercise of national power over industry conducted on a national scale which the evolving nature of our industrialism foredoomed to reversal." Ibid. 229-230. [425] Swift & Co. _v._ United States, 196 U.S. 375, 396 (1905). [426] 196 U.S. at 398-399. [427] Ibid. 399-401. [428] Ibid. 400. [429] Loewe _v._ Lawlor, 208 U.S. 274 (1908); Duplex Printing Press Co. _v._ Deering, 254 U.S. 443 (1921); Coronado Coal Co. _v._ United Mine Workers of America, 268 U.S. 295 (1925); United States _v._ Brime, 272 U.S. 549 (1926); Bedford Co. _v._ Stone Cutters Assn., 274 U.S. 37 (1927); Local 167 _v._ United States, 291 U.S. 293 (1934); Allen Bradley Co. _v._ Union, 325 U.S. 797 (1945). [430] 42 Stat. 159. [431] Ibid. 998 (1922). [432] 258 U.S. 495 (1922). [433] Ibid. 514. [434] Ibid. 515-516. _See also_ Lemke _v._ Farmers' Grain Co., 258 U.S. 50 (1922); Minnesota _v._ Blasius, 290 U.S. 1 (1933). [435] 262 U.S. 1 (1923). [436] Ibid. 35. [437] Ibid. 40. [438] 258 U.S. at 521; 262 U.S. at 37. [439] 48 Stat. 881. [440] 49 Stat. 803. [441] Electric Bond Co. _v._ Comm'n., 303 U.S. 419 (1938); North American Co. _v._ S.E.C., 327 U.S. 686 (1946); American Power & Light Co. _v._ S.E.C., 329 U.S. 90 (1946). [442] "The Bond and Share system, including American and Electric, possesses an undeniable interstate character which makes it properly subject, from the statutory standpoint, to the provisions of § 11 (b) (2). This vast system embraces utility properties in no fewer than 32 States, from New Jersey to Oregon and from Minnesota to Florida, as well as in 12 foreign countries. Bond and Share dominates and controls this system from its headquarters in New York City. * * * the proper control and functioning of such an extensive multi-state network of corporations necessitates continuous and substantial use of the mails and the instrumentalities of interstate commerce. Only in that way can Bond and Share, or its subholding companies or service subsidiary, market and distribute securities, control and influence the various operating companies, negotiate inter-system loans, acquire or exchange property, perform service contracts, or reap the benefits of stock ownership. * * * Moreover, many of the operating companies on the lower echelon sell and transmit electric energy or gas in interstate commerce to an extent that cannot be described as spasmodic or insignificant. * * * Congress, of course, has undoubted power under the commerce clause to impose relevant conditions and requirements on those who use the channels of interstate commerce so that those channels will not be conduits for promoting or perpetuating economic evils. * * * Thus to the extent that corporate business is transacted through such channels, affecting commerce in more States than one, Congress may act directly with respect to that business to protect what it conceives to be the national welfare. * * * It may compel changes in the voting rights and other privileges of stockholders. It may order the divestment or rearrangement of properties. It may order the reorganization or dissolution of corporations. In short, Congress is completely uninhibited by the commerce clause in selecting the means considered necessary for bringing about the desired conditions in the channels of interstate commerce. Any limitations are to be found in other sections of the Constitution. Gibbons _v._ Ogden, 9 Wheat. 1, 196." American Power & Light Co. _v._ S.E.C., 329 U.S. 90, 98-100 (1946). [443] Appalachian Coals, Inc. _v._ United States, 288 U.S. 344, 372 (1933). [444] 48 Stat. 195. [445] 295 U.S. 495 (1935). [446] Ibid. 548. _See also_ Ibid. 546. [447] In United States _v._ Sullivan, 332 U.S. 689 (1948), the Court interpreted the Federal Food, Drug, and Cosmetics Act of 1938 as applying to the sale by a retailer of drugs purchased from his wholesaler within the State nine months after their interstate shipment had been completed. The Court, speaking by Justice Black, cited United States _v._ Walsh, 331 U.S. 432 (1947); Wickard _v._ Filburn, 317 U.S. 111 (1942); United States _v._ Wrightwood Dairy Co., 315 U.S. 110 (1942); United States _v._ Darby, 312 U.S. 100 (1941). The last three of these cases are discussed below. _See_ pp. 155, 159. Justice Frankfurter dissented on the basis of Federal Trade Commission _v._ Bunte Bros., 312 U.S. 349 (1941). It is apparent that the Schechter case has been thoroughly repudiated so far as the distinction "direct" and "indirect" effects is concerned. _See also_ McDermott _v._ Wisconsin, 228 U.S. 115 (1913), which preceded the Schechter decision by more than two decades. The N.I.R.A., however, was found to have several other constitutional infirmities besides its disregard, as illustrated by the Live Poultry Code, of the "fundamental" distinction between "direct" and "indirect" effects, namely, the delegation of uncanalized legislative power; the absence of any administrative procedural safeguards; the absence of judicial review; and the dominant role played by private groups in the general scheme of regulation. These objections are dealt with elsewhere in this volume. _Supra_, pp. 75, 78, 80. [448] 48 Stat 31 (1933). [449] United States _v._ Butler, 297 U.S. 1, 63-64, 68 (1936). [450] 49 Stat. 991. [451] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936). [452] Ibid. 308-309. [453] United States _v._ E.C. Knight Co., 156 U.S. 1 (1895). [454] 301 U.S. 1 (1937). [455] 49 Stat. 449. [456] 301 U.S. at 38, 41-42 (1937). [457] National Labor Relations Board _v._ Fruehauf Trailer Co., 301 U.S. 49 (1937); National Labor Relations Board _v._ Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937). [458] National Labor Relations Board _v._ Fainblatt, 306 U.S. 601, 606 (1939). [459] _See_ Santa Cruz Fruit Packing Co. _v._ National Labor Relations Board, 303 U.S. 453, 465 (1938). [460] 52 Stat. 1060. [461] United States _v._ Darby, 312 U.S. 100, 115 (1941). [462] _See_ ibid. 113, 114, 118. [463] Ibid. 123-124. [464] Owen J. Roberts, The Court and the Constitution, The Oliver Wendell Holmes Lectures 1951, (Harvard University Press 1951), 56. [465] The Act provided originally that "for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed * * * in any process or occupation necessary to the production thereof, in any State." By 63 Stat. 910 (1949), "necessary to the production thereof" becomes "directly essential to the production thereof." The effect of this change, which has not yet registered itself in judicial decision, seems likely to be slight, in view of the power, which the act gives the Administrator to lay down "such terms and conditions" as he "finds necessary to carry out the purposes of" his orders to prevent their evasion or circumvention. _See_ Gemsco, Inc. _v._ Walling, 324 U.S. 244 (1945). The employees involved in the following cases have been held to be covered by the act: (1) Operating and maintenance employees of the owner of a loft building, space in which is rented to persons producing goods principally for interstate commerce (Kirschbaum _v._ Walling, 316 U.S. 517 (1942)); (2) an employee of an interstate motor transportation company, who acted as rate clerk and performed other incidental duties (Overnight Motor Co. _v._ Missel, 316 U.S. 572 (1942)); (3) members of a rotary drilling crew, engaged within a State, as employees of an independent contractor, in partially drilling oil wells, a portion of the products from which later moved in interstate commerce (Warren-Bradshaw Co. _v._ Hall, 317 U.S. 88 (1942)); (4) employees of a wholesale paper company who are engaged in the delivery, from company warehouse within a State to customers within that State, after a temporary pause at such warehouses, of goods procured outside of the State upon prior orders from, or pursuant to contracts with, such customers (Walling _v._ Jacksonville Paper Co., 317 U.S. 564 (1943)); (5) employees of a private corporation who are engaged in the operation and maintenance of a drawbridge which is part of a toll road used extensively by persons and vehicles traveling in interstate commerce, and which spans an intercoastal waterway used in interstate commerce (Overstreet _v._ North Shore Corp., 318 U.S. 125 (1943)); (6) a night watchman employed in a plant in which veneer was manufactured from logs and from which a substantial portion of the manufactured product was shipped in interstate commerce (Walton _v._ Southern Package Corp., 320 U.S. 540 (1944)); (7) employees putting in stand-by time in the auxiliary fire-fighting service of an employer engaged in interstate commerce (Armour & Co. _v._ Wantock, 323 U.S. 126 (1944)); (8) warehouse and central office employees of an interstate retail chain store system (Phillips Co. _v._ Walling, 324 U.S. 490 (1945)); (9) employees of an independent contractor engaged in repairing abutments and substructures of bridges which were part of the line of an interstate railroad (Fitzgerald Co. _v._ Pedersen, 324 U.S. 720 (1945)); (10) maintenance employees of an office building which was owned and operated by a manufacturing corporation and in which 58 per cent of the rental space was used for its central offices, where its production of goods for interstate commerce was administered, managed and controlled, although the goods were actually produced at plants located elsewhere (Borden Company _v._ Borella, 325 U.S. 679 (1945)); (11) the employees of an electrical contractor, locally engaged in commercial and industrial wiring and dealing in electrical motors and generators for commercial and industrial uses, whose customers are engaged in the production of goods for interstate commerce (Roland Co. _v._ Walling, 326 U.S. 657-678 (1946)); (12) employees of a window-cleaning company, the greater part of whose work is done on the windows of industrial plants of producers of goods for interstate commerce (Martino _v._ Michigan Window Cleaning Company, 327 U.S. 173-178 (1946)); (13) mechanics engaged in servicing and maintaining equipment of a motor transportation company which is engaged in interstate commerce (Boutell _v._ Walling, 327 U.S. 463 (1946)). Nor does the maxim "_de minimis_" apply to the act. Hence the publishers of a daily newspaper only about one half of one per cent of whose circulation is outside the State of publication are not by that fact excluded from the operation of the act. (Mabee _v._ White Plains Publishing Co., 327 U.S. 178 (1946)). On the other hand, an employee whose work it is to prepare meals and serve them to maintenance-of-way employees of an interstate railroad in pursuance of a contract between his employer and the railroad company is not "engaged in commerce" within the meaning of §§ 6 and 7 of the Fair Labor Standards Act (McLeod _v._ Threlkeld, 319 U.S. 491 (1943)); nor are maintenance employees of a typical metropolitan office building operated as an independent enterprise, which is used and is to be used for offices by every variety of tenants, including some producers of goods for commerce (10 East 40th St. _v._ Callus, 325 U.S. 578 (1945)); nor are maintenance employees of a building corporation which furnishes loft space to tenants engaged in production for interstate commerce "unless an adequate proportion of such tenants are so engaged." (Schulte _v._ Gangi, 328 U.S. 108 (1946)). _Also_ Section 12 (a) of the Fair Labor Standards Act, which provides that "no producer, * * * shall ship or deliver for shipment in commerce any goods produced in an establishment * * * in or about which * * * any oppressive child labor has been employed * * *" was held inapplicable to a company engaged in the transmission in interstate commerce of telegraph messages, (Western Union _v._ Lenroot, 323 U.S. 490 (1945)). The decision was a five-to-four one. It should be added that the Court has not always been unanimous in favoring coverage by the act. In the Borden case above, Chief Justice Stone, speaking for himself and Justice Roberts, protested, as follows: "No doubt there are philosophers who would argue, what is implicit in the decision now rendered, that in a complex modern society there is such interdependence of its members that the activities of most of them are necessary to the activities of most others. But I think that Congress did not make that philosophy the basis of the coverage of the Fair Labor Standards Act. It did not, by a 'house-that-Jack-built' chain of causation, bring within the sweep of the statute the ultimate _causa causarum_ which result in the production of goods for commerce. Instead it defined production as a physical process. It said in § 3 (j) 'Produced means produced, manufactured, mined, handled, or in any other manner worked on' and declared that those who participate in any of these processes 'or in any process or occupation necessary to' them are engaged in production and subject to the Act." 325 U.S. 679, 685. On the other hand, the holding in 10 East 40th St., above, was a five-to-four decision, and Justice Frankfurter, speaking for the Court took pains to explain that Congress in enacting the Fair Labor Standards Act, "did not see fit, * * *, to exhaust its constitutional power over commerce." 325 U.S. 578-579. _See_ 87 Law Ed. pp. 87-105 for a note reviewing both Supreme Court, lower Federal Court, and State court cases defining "engaged in commerce" as that term is used in the Fair Labor Standards Act. [466] 50 Stat. 246. [467] 315 U.S. 110 (1942). [468] Ibid. 118-119. [469] 317 U.S. 111 (1942). [470] 52 Stat. 31. [471] 317 U.S. at 128-129. [472] Ibid. 120-124 _passim_. In United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939), the Court sustained an order under the Agricultural Marketing Agreement Act of 1937 (50 Stat. 752) regulating the price of milk in certain instances. Said Justice Reed for the majority of the Court: "The challenge is to the regulation 'of the price to be paid upon the sale by a dairy farmer who delivers his milk to some country plant.' It is urged that the sale, a local transaction, is fully completed before any interstate commerce begins and that the attempt to fix the price or other elements of that incident violates the Tenth Amendment. But where commodities are bought for use beyond State lines, the sale is a part of interstate commerce. We have likewise held that where sales for interstate transportation were commingled with intrastate transactions, the existence of the local activity did not interfere with the federal power to regulate inspection of the whole. Activities conducted within the State lines do not by this fact alone escape the sweep of the Commerce Clause. Interstate commerce may be dependent upon them. Power to establish quotas for interstate marketing gives power to name quotas for that which is to be left within the State of production. Where local and foreign milk alike are drawn into a general plan for protecting the interstate commerce in the commodity from the interferences, burdens and obstructions, arising from excessive surplus and the social and sanitary evils of low values, the power of the Congress extends also to the local sales."' Ibid. 568-569. _See also_ H.P. Hood & Sons _v._ United States, 307 U.S. 588 (1939), another milk case; and Mulford _v._ Smith, 307 U.S. 38 (1939), in which certain restrictions on the sale of tobacco, under the Agricultural Adjustment Act of 1938 (52 Stat. 31), were sustained in an opinion by Justice Roberts, who spoke for the Court in the latter case. [473] United States _v._ The William, 28 Fed. Cas. No. 16,700, 614, 620-623 _passim_ (1808). Other parts of this opinion are considered below in connection with the prohibiting of interstate commerce. _See also_ Gibbons _v._ Ogden, 9 Wheat. 1, 191 (1824); United States _v._ Marigold, 9 How. 560 (1850). [474] 289 U.S. 48 (1933). [475] Ibid. 57, 58. [476] 5 Stat. 566 § 28. [477] 9 Stat. 237 (1848). [478] 24 Stat. 409. [479] 35 Stat. 614; 38 Stat. 275. [480] 29 Stat. 605. [481] 192 U.S. 470 (1904). [482] 223 U.S. 166 (1912); _cf._ United States _v._ California, 332 U.S. 19 (1947). [483] 239 U.S. 325 (1915). [484] Ibid. 329. [485] 236 U.S. 216 (1915). [486] Ibid. 222. _See also_ Robert B. Cushman, National Police Power Under the Commerce Clause, 3 Selected Essays on Constitutional Law, 62-79. [487] Groves _v._ Slaughter, 15 Pet. 449, 488-489 (1841). The Issue A little reflection will suffice to show that, as a matter of fact, any regulation at all of commerce implies some measure of power to prohibit it, since it is the very nature of regulation to lay down terms on which the activity regulated will be permitted and for noncompliance with which it will not be permitted. It is also evident that when occasion does arise for an outright prohibition of an activity, the power to enact the required prohibition ordinarily must belong to the body which is vested with authority to regulate it, which in this instance is Congress. What, then, are the outstanding differences between such conditional prohibitions of commerce and that with which this résumé deals? There seem to be three such differences. First, there is often a difference of _modus operandi_ between the statutes already considered and those about to be considered. The former impinge upon persons or agencies engaged in interstate commerce and their activities in connection therewith, whereas the latter look primarily to things, or the subject matter, of the trade or commerce prohibited. Secondly, there is a difference in purpose between the two categories of Congressional statutes. The purpose of the acts already treated is to lay down the conditions on which a designated branch of commerce among the States may be carried on; that of the acts now to be treated is to eliminate outright a designated branch of trade among the States. In other words, whereas the former acts were, in general, preservative of the commerce which they regulated because of its value to society, the latter regard the commerce which they reach as detrimental to society. The third, and most important difference from the point of view of Constitutional Law, is the difference in relation of the two categories of acts respectively to the reserved powers of the States. The enactments of Congress already dealt with frequently intrude upon the ordinary field of jurisdiction of the States; but when they do so, it is because the acts or things which they thus bring under national control are regarded as "local incidents" of interstate commerce itself. The relation of the enactments about to be considered to the reserved powers of the States is precisely the inverse of this. Their very purpose is to reach and control matters ordinarily governed by the State's police power, sometimes in order to make State policy more effective, sometimes in order to supply a corrective to it. The Argument Denying Congress' Power To Prohibit Interstate Commerce The principal argument against the constitutionality of prohibitory Congressional legislation pivoted on the dual conception of the Federal System "The Federal Equilibrium". The Constitution, the argument ran, clearly contemplates two spheres of governmental activity, that of the States, that of the United States; and while the latter government is generally supreme when the two collide with one another in the exercise of their respective powers, yet collision is not contemplated as the rule of life of the system, but the contrary. And since there are these two spheres, the line to be drawn between them, in order to secure harmony instead of collision, should recognize that the objects which the National Government was established to promote are relatively few, while those which the States were retained to advance comprise the principal objectives of government, the protection of the public health, safety, morals, and welfare. The power to promote these ends is, indeed, the very definition of the police power of the States--that power for which all other powers of the States exist. Seriously to impair the police power of the States, or to diminish their autonomy in its employment, would be, in fact to remove their reason for being, and so the reason for the Federal System itself. So while the power of Congress to regulate commerce among the States and with foreign nations is in terms a single power, in the intention of the framers it comprised two very different powers. In the field of foreign relations, the National Government is completely sovereign, and the power to regulate commerce with foreign nations is but a branch of this sovereign power. The power to regulate commerce among the States is, on the other hand, not a sovereign power except for purposes of commercial advantage; in other respects it is confronted at every turn by the police power of the States, and hence requires to be defined in relation to the known and frequently reiterated objectives of that power. Indeed, it was urged on the authority of Madison that the power to regulate commerce among the States was not bestowed upon the National Government "to be used for * * * positive purposes," but merely as "a negative and preventive provision against injustice among the States themselves." Madison IV, Letters and Other Writings, 15 (Philadelphia, 1865). Furthermore, it is a power which was designed for the _promotion_ and _advancement_ of commerce, not a power to strike commerce down in order to advance other purposes and programs. Grant that the power to regulate commerce among the States is the power to prohibit it at the discretion of Congress, and you at once endow Congress with power which it may use as a weapon to consolidate substantially all power in the hands of the National Government. Thus, if Congress may prohibit _ad libitum_ the carrying on of interstate commerce, it may make deprivation of the right to engage in interstate commerce in any of its phases, even the right to move from one State to another, a sanction of ever-increasing efficacy for whatever standards of conduct it may choose to lay down in any field of human action; and since laws passed by Congress in pursuance of its powers are generally supreme over conflicting State laws, these standards would supersede the conflicting standards imposed under the police powers of the States. Henceforth, in effect, the police power would exist solely by "leave and license" of Congress--as "the power to govern men and things" it would be at an end; and by the same token the Federal System, which is the outstanding feature of government under the Constitution, would be at an end. In the First Employers' Liability Cases, (Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908)), the majority of the Court, speaking through Justice White, gave special attention to the Government's argument that though the act, in terms, governed the liability of "every" interstate carrier to "any" of its employees, whether engaged in interstate commerce or not when the liability fell, it was none the less constitutional "because one who engaged in interstate commerce thereby submits all his business concerns to the regulating power of Congress." Justice White answered: "To state the proposition is to refute it. It assumes that because one engages in interstate commerce he thereby endows Congress with power not delegated to it by the Constitution; in other words, with the right to legislate concerning matters of purely State concern. It rests upon the conception that the Constitution destroyed that freedom of commerce which it was its purpose to preserve, since it treats the right to engage in interstate commerce as a privilege which cannot be availed of except upon such conditions as Congress may prescribe, even although the conditions would be otherwise beyond the power of Congress. It is apparent that if the contention were well founded it would extend the power of Congress to every conceivable subject, however inherently local, would obliterate all the limitations of power imposed by the Constitution, and would destroy the authority of the States as to all conceivable matters which from the beginning have been, and must continue to be, under their control so long as the Constitution endures." Ibid. 502-503. _See also_ Justice White's dissenting opinion, for himself, Chief Justice Fuller, and Justices Peckham and Holmes, in Northern Securities Co. _v._ United States, 193 U.S. 197, 396-397 (1904). The Argument Asserting the Power The thesis that the power to regulate commerce among the States comprises in general the power to prohibit it turns on the proposition stated by Marshall in his opinion in Gibbons _v._ Ogden, that this power is vested "in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and discretion of Congress," Marshall continued, "their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse." 9 Wheat. 1, 196-197 (1824). That the National Government is a government of limited powers, the advocates of this view conceded; but the powers which it uncontrovertibly possesses, they urged, may be utilized to promote all good causes, of which fact, it was asserted, the Preamble of the Constitution itself was proof. There the objectives of the Constitution and so, presumably, of the Government created by it, are stated to be "more perfect union," "justice," "domestic tranquillity," "the common defense," "the general welfare," and "liberty." It was to forward these broad general purposes, then, that the commercial power, like its other powers, was bestowed upon the National Government. No doubt it was expected that the States, too, would use the powers still left them to assist the same purposes, which indeed are those of good government always. Yet that circumstance should not operate to withdraw the powers delegated to the National Government from the service of these same ends. The fact, in other words, that the power to govern commerce among the States was bestowed by the Constitution on the National Government should not imply that it thereby became available merely for the purpose of fostering such commerce. It ought, on the contrary, to be applicable, as would be the equivalent power in England or France for instance, to aid and support all recognized objectives of government. _See_ Juilliard _v._ Greenman (Legal Tender Case), 110 U.S. 421, 447-448 (1884). As originally possessed by the several States, the power to regulate commerce with one another included the power to prohibit it at discretion; on what principle, then, it was asked, can it be contended that the power delegated to Congress is not as exhaustive and complete as the power it was designed to supersede? _See_ especially Justice Holmes' dissenting opinion in Hammer _v._ Dagenhart, 247 U.S. 251, 277-281 (1918). And, the protagonists of this view continued, if the public health, safety, morals, and general welfare must depend solely upon the police powers of the States, they must in modern conditions, often fail of realization in this country. With goods flowing over State lines in ever-increasing quantities, and people in ever-increasing numbers, how was it possible to regard the States as watertight compartments? At least, then, when local legislative programs break down on account of the division of the country into States, it becomes the clear duty of Congress to adopt supplementary legislation to remedy the situation. In doing so, it is not undermining the Federal System; it is supporting it, by making it viable in modern conditions. The assemblage of the States in one Union was never intended to put one State at the mercy of another. If, however, well considered programs of legislation are rendered abortive in a State in consequence of the flow of commerce into it from other States, then it becomes the duty--certainly it is within the discretion of Congress--which alone can govern commerce among the States, to supply the required relief. _See_ especially Assistant Attorney General Maury's argument. In re Rapier, 143 U.S. 110, 127-129 (1892). In this connection the advocates of this view cited discussion contemporaneous with Jefferson's Embargo, and under the embargo itself, as supporting their position. In the case of the Brigantine William the validity of the embargo was challenged before the United States District Court of Massachusetts on the ground that the power to regulate commerce did not embrace the power to prohibit it. Judge Davis answered: "It will be admitted that partial prohibitions are authorized by this expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to have been committed? * * * The power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. * * * the national right, or power, under the Constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to be unquestionable. * * * The situation of the United States, in ordinary times, might render legislative interferences, relative to commerce, less necessary; but the capacity and power of managing and directing it, for the advancement of great national purposes, seems an important ingredient of sovereignty." And in confirmation of this argument Judge Davis cited the clause of § 9 of article I of the Constitution interdicting a prohibition of the slave trade till 1808. This clause clearly proves that those who framed the Constitution perceived that "under the power of regulating commerce, Congress would be authorized to abridge it, in favour of the great principles of humanity and justice." Fed. Cas. No. 16,700, 614, 621 (1808). The embargo, to be sure, operated on foreign commerce; but that there is any difference between Congress's power in relation to foreign and to interstate commerce the advocates of the view under consideration denied. The power to "regulate" is the power which belongs to Congress as to the one as well as to the other; and if this comprehends the power to prohibit in the one case, it must equally, by acknowledged principles of statutory construction, comprehend it in the other case as well. Nor in fact, the argument continued, does it make any difference, by approved principles of statutory construction, what purposes the framers of the Constitution may have immediately in mind when they gave Congress power to regulate commerce among the States; the governing consideration is that they gave Congress the power, to be exercised in accordance with its judgment of what are proper occasions for its use. "The reasons which may have caused the framers of the Constitution to repose the power to regulate interstate commerce in Congress do not, however, affect or limit the extent of the power itself." Justice Peckham for the Court in Addyston Pipe & Steel Co. _v._ United States, 175 U.S. 211, 228 (1899). References _See_ especially the arguments of counsel In re Rapier, 143 U.S. 110 (1892); Champion _v._ Ames (Lottery Case), 188 U.S. 321 (1903); Hammer _v._ Dagenhart, 247 U.S. 251 (1918); 3 Selected Essays on Constitutional Law, 103, 138, 165, 295, 314, 336. Indeed, regulation of interstate commerce by Congress may take the form of a positive adoption by it of a regime of State regulation in the form of statutes (e.g., pilotage) or of administrative regulations in some degree (as in the Motor Carrier Act of 1935); or Congress may "regulate" through the device of divestment of a subject matter of its interstate character, thus indirectly causing State laws to apply, as was done by the Wilson Act of 1890 in respect to intoxicating liquors, or by the McCarran Act of 1945 following the United States _v._ South-Eastern Underwriters Association, 322 U.S. 533 (1944), in respect to the insurance business. In a sense, Congress may delegate to the States its power to regulate interstate commerce. [488] 23 Stat. 31. [489] 32 Stat. 791. [490] 33 Stat. 1264. [491] 33 Stat. 1269. [492] 37 Stat. 315. [493] 39 Stat. 1165. [494] Illinois Central R. Co. _v._ McKendree, 203 U.S. 514 (1906). _See also_ United States _v._ DeWitt, 9 Wall. 41 (1870). Of the nature of a quarantine act is the Federal Firearms Act of 1938 (52 Stat 1250). [495] Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903). [496] 28 Stat 963. [497] 143 U.S. 110 (1892). [498] Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903). [499] 9 Wheat. 1, 227 (1824). [500] 114 U.S. 622, 630 (1885). [501] 26 Stat. 313 (1890); 37 Stat. 699 (1913), "The Webb-Kenyon Act." [502] 31 Stat. 188 (1900). [503] 45 Stat. 1084 (1929), "The Hawes-Cooper Act." [504] 36 Stat. 825 (1910), "The Mann Act." [505] 41 Stat. 324 (1919). [506] 47 Stat. 326 (1932). [507] 48 Stat. 794 (1934). [508] 48 Stat. 979 (1934). [509] 54 Stat. 686 (1940). [510] Hoke _v._ United States, 227 U.S. 308, 322 (1913). In Caminetti _v._ United States, 242 U.S. 470 (1917) the act was held to apply to the case of transportation of a woman for immoral purposes, although no commercial motive was present; and in Cleveland _v._ United States, 329 U.S. 14 (1946), to the transportation of a plural wife by the member of a religious sect a tenet of which is polygamy. [511] United States _v._ Hill, 248 U.S. 420, 425 (1919). [512] 247 U.S. 251 (1918). [513] 39 Stat. 675 (1916). [514] 247 U.S. at 275. [515] Ibid. 271-272. [516] 267 U.S. 432 (1925). [517] 41 Stat. 324 (1919). [518] 267 U.S. at 436-439. _See also_ Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937). [519] United States _v._ Darby, 312 U.S. 100, 116-117 (1941). [520] Roland Co. _v._ Walling, 326 U.S. 657, 669 (1946). [521] Polish Alliance _v._ Labor Board, 322 U.S. 643, 650 (1944). _Cf._ the opinion of Chief Justice Vinson for the Court in Bus Employees _v._ Wisconsin Board, 340 U.S. 383 (1951). [522] Federalist No. 32. [523] 9 Wheat. 1, 11, 226 (1824). [524] Madison, IV, Letters and Other Writings, 14-15 (Philadelphia, 1865). [525] 9 Wheat. 1, 203. [526] 9 Wheat. at 210-211. [527] 9 Wheat. at 13-14; _also_ ibid. 16. [528] 9 Wheat. 17-18, 209. [529] 12 Wheat. 419 (1827). [530] 12 How. 299 (1851). [531] Congressional regulation of commerce, however, does not have to be uniform. The uniformity rule is a test of the invalidity of State legislation affecting commerce, not the validity of Congressional legislation regulating commerce. Clark Distilling Co. _v._ W.M.R. Co., 242 U.S. 311, 327 (1917); Currin _v._ Wallace, 306 U.S. 1, 14 (1939); Prudential Ins. Co. _v._ Benjamin, 328 U.S. 408 (1946). [532] Simpson _v._ Shepard, 230 U.S. 352 (1913). [533] Ibid. 400-402. [534] McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176, 188-189 (1940). F.D.G. Ribble's _State and National Power Over Commerce_ (Columbia University Press, 1937) is an excellent study both of the Court's formulas and of the arbitral character of its task in this field of Constitutional Law. On the latter point, see especially Chapters X and XII. The late Chief Justice Stone took repeated occasion to stress the "balancing" and "adjusting" role of the Court when applying the commerce clause in relation to State power. _See_ his words in South Carolina State Highway Dept. _v._ Barnwell Bros., 303 U.S. 177, 184-192 (1938); California _v._ Thompson, 313 U.S. 109, 113-116 (1941); Parker _v._ Brown, 317 U.S. 341, 362-363 (1943); and Southern Pacific _v._ Arizona, 325. U.S. 761, 766-770 (1945). _See also_ Justice Black for the Court in United States _v._ South-Eastern Underwriters Assoc., 322 U.S. 533, 548-549 (1944). [535] 12 Wheat. 419 (1827). [536] Compare, for example, May _v._ New Orleans, 178 U.S. 496 (1900); and the recent case of Hooven & Allison Co. _v._ Evatt, 324 U.S. 652 (1945). In the latter case the benefits of the original package doctrine were extended to imports from the Philippine Islands title to which did not vest in the importer until their arrival in the United States. [537] Freeman _v._ Hewit, 329 U.S. 249, 251 (1946). [538] Philadelphia & R.R. Co. _v._ Pennsylvania (State Freight Tax Case), 15 Wall. 232 (1873). [539] Headnotes. Said the Court: "The rule has been asserted with great clearness, that whenever the subjects over which a power to regulate commerce is asserted are in their nature national, or admit of one uniform system or plan of regulation, they may justly be said to be of such a nature as to require exclusive legislation by Congress. Surely transportation of passengers or merchandise through a State, or from one State to another, is of this nature. It is of national importance that over that subject there should be but one regulating power, for if one State can directly tax persons or property passing through it, or tax them indirectly by levying a tax upon their transportation, every other may, and thus commercial intercourse between States remote from each other may be destroyed." 15 Wall. at 279-280, citing Cooley _v._ Port Wardens, 12 How. 299 (1851); Gilman. _v._ Philadelphia, 3 Wall. 713 (1866); Crandall _v._ Nevada, 6 Wall. 35, 42 (1868). [540] 116 U.S. 517 (1886). [541] Ibid. 527. [542] Heisler _v._ Thomas Colliery Co., 260 U.S. 245 (1922). [543] 262 U.S. 172 (1923). [544] Ibid. 178. _See also_ Diamond Match Co. _v._ Ontonagon 188 U.S. 82 (1903). [545] Hope Natural Gas Co. _v._ Hall, 274 U.S. 284 (1927). _See also_ American Manufacturing Co. _v._ St. Louis, 250 U.S. 459 (1919) in which there was imposed a license tax on manufacture of goods computed upon the amount of sales of the goods. [546] 286 U.S. 165 (1932). [547] Coverdale _v._ Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938). [548] Toomer _v._ Witsell, 334 U.S. 385 (1948). [549] Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282 (1921). Here a Tennessee corporation, in pursuance of its practice of purchasing grain in Kentucky to be transported to and used in its Tennessee mill, made a contract for the purchase of wheat, to be delivered in Kentucky on the cars of a public carrier, intending to forward it as soon as delivery was made. It was held that the transaction was in interstate commerce, notwithstanding the contract was made and to be performed in Kentucky; and that the possibility that the purchaser might change its mind after delivery and sell the grains in Kentucky or consign it to some other place in that State did not affect the essential character of the transaction. Interstate commerce, said the Court, "is not confined to transportation from one State to another, but comprehends all commercial intercourse between different States and all the component parts of that intercourse." Ibid. 290. Followed in Lemke _v._ Farmers Grain Co., 258 U.S. 50 (1922); and Flanagan _v._ Federal Coal Co., 267 U.S. 222 (1925). [550] Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921). [551] United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921). [552] Ibid. 281. _See also_ State Tax Commission _v._ Interstate Natural Gas Co., 284 U.S. 41 (1931) holding invalid a State privilege tax imposed on a foreign corporation selling to distributors in the State natural gas piped in from another State, whose only activity was the use of a thermometer and meter and reduction of pressure to permit vendee to draw off the gas. "The work done by the plaintiff is done upon the flowing gas to help the delivery and seems to us plainly to be an incident to the interstate commerce between Louisiana and Mississippi." Ibid. 44. [553] 12 Wheat. 419 (1827). [554] Ibid. 449. [555] 8 Wall. 123 (1860). [556] Ibid. 140. [557] 114 U.S. 622 (1885). _See also_ Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577 (1895). [558] 114 U.S. at 632-633. [559] Ibid. 634. [560] _See_ Wagner _v._ Covington, 251 U.S. 95 (1919). [561] Brimmer _v._ Rebman, 138 U.S. 78 (1891); Patapsco Guano Co. _v._ Board of Agriculture, 171 U.S. 345 (1898); Red "C" Oil Mfg. Co. _v._ Board of Agriculture, 222 U.S. 380 (1912); Savage _v._ Jones, 225 U.S. 501 (1912); Foote & Co. _v._ Stanley, 232 U.S. 494 (1914). [562] Standard Oil Co. _v._ Graves, 249 U.S. 389 (1919); Askren _v._ Continental Oil Co., 252 U.S. 444 (1920); Bowman _v._ Continental Oil Co., 256 U.S. 642 (1921); Texas Co. _v._ Brown, 258 U.S. 466 (1922). [563] Sonneborn Bros. _v._ Cureton, 262 U.S. 506 (1923). Reviewing cases. _Cf._ Phipps _v._ Cleveland Refining Co., 261 U.S. 449 (1923). [564] _See_ pp. 178, 238-239. [565] Eastern Air Transport, Inc. _v._ South Carolina Tax Comm'n., 285 U.S. 147, 153 (1932). [566] Rast _v._ Van Deman and Lewis, 240 U.S. 342 (1916). _See also_ Tanner _v._ Little, 240 U.S. 369 (1916), and Pitney _v._ Washington, 240 U.S. 387 (1916) upholding a Washington statute imposing a prohibitive license tax upon merchants using trading stamps or coupons redeemable in merchandise. [567] Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); Emert _v._ Missouri, 156 U.S. 296 (1895); Singer Sewing Machine Co. _v._ Brickell, 233 U.S. 304 (1914); Wagner _v._ City of Covington, 251 U.S. 95 (1919); Caskey Baking Co. _v._ Virginia, 313 U.S. 117 (1941). [568] 197 U.S. 60 (1905). _See also_ Armour Packing Co. _v._ Lacy, 200 U.S. 226 (1906). [569] 91 U.S. 275 (1876); _see also_ Ward _v._ Maryland, 12 Wall. 418 (1871). [570] _See_ Cook _v._ Pennsylvania, 97 U.S. 566 (1878); Guy _v._ Baltimore, 100 U.S. 434 (1880); Tiernan _v._ Rinker, 102 U.S. 123 (1880); Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); Webber _v._ Virginia, 103 U.S. 344 (1881); Walling _v._ Michigan, 116 U.S. 446 (1886); Darnell & Son Co. _v._ Memphis, 208 U.S. 113 (1908), where was held void a property tax on lumber which discriminated in favor of the local product: Bethlehem Motor Corp. _v._ Flynt, 256 U.S. 421 (1921), where a license tax on distributors was held to be invalidated by the provision made for a rebate under conditions that could be met only by manufacturers within the taxing State. [571] Coe _v._ Errol, 116 U.S. 517 (1886). [572] Ibid. 525. [573] General Oil Co. _v._ Crain, 209 U.S. 211 (1908). [574] American Steel & Wire Co. _v._ Speed, 192 U.S. 500 (1904); Bacon _v._ Illinois, 227 U.S. 504 (1913); Susquehanna Coal Co. _v._ South Amboy, 228 U.S. 665 (1913); Minnesota _v._ Blasius, 290 U.S. 1 (1933); Independent Warehouses _v._ Scheele, 331 U.S. 70 (1947). [575] Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933). [576] Edelman _v._ Boeing Air Transport, Inc., 289 U.S. 249 (1933). The Court also upheld a tax on the sale of gasoline for use by an air transport line in conducting interstate transportation across the State in Eastern Air Transport, Inc. _v._ South Carolina Tax Comm., 285 U.S. 147 (1932). [577] Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939). [578] Pacific Telephone & Telegraph Co. _v._ Gallagher, 306 U.S. 182 (1939). [579] Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939), as formulated in the headnotes; _see also_ Monamotor Oil Co. _v._ Johnson, 292 U.S. 86 (1934). [580] Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936); McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940). In Helson _v._ Kentucky, 279 U.S. 245 (1929), the Court held that gasoline purchased in Illinois and used in an Illinois-Kentucky ferry could not be taxed by Kentucky, being, as it were, a part of the ferry, an instrument of commerce between the two States. _See also_ Kelley _v._ Rhoads, 188 U.S. 1 (1903); Champlain Realty Co. _v._ Brattleboro, 260 U.S. 366 (1922); Hughes Bros. Timber Co. _v._ Minnesota, 272 U.S. 469 (1926); Carson Petroleum Co. _v._ Vial, 279 U.S. 95 (1929). [581] 120 U.S. 489 (1887). [582] Corson _v._ Maryland, 120 U.S. 502 (1887); Asher _v._ Texas, 128 U.S. 129 (1888); Stoutenburgh _v._ Hennick, 129 U.S. 141 (1889); Brennan _v._ Titusville, 153 U.S. 289 (1894); Stockard _v._ Morgan, 185 U.S. 27 (1902); Crenshaw _v._ Arkansas, 227 U.S. 389 (1913); Rogers _v._ Arkansas, 227 U.S. 401 (1913); Stewart _v._ Michigan, 232 U.S. 665 (1914); Western Oil Refining Co. _v._ Lipscomb, 244 U.S. 346 (1917); Cheney Bros. _v._ Massachusetts, 246 U.S. 147 (1918). [583] Caldwell _v._ North Carolina, 187 U.S. 622 (1903). [584] Norfolk & W.R. Co. _v._ Sims, 191 U.S. 441 (1903). [585] Rearick _v._ Pennsylvania, 203 U.S. 507 (1906); Dozier _v._ Alabama, 218 U.S. 124 (1910); Davis _v._ Virginia, 236 U.S. 697 (1915). [586] 203 U.S. at 512. [587] Real Silk Hosiery Mills _v._ Portland, 268 U.S. 325 (1925). [588] Heyman _v._ Hays, 236 U.S. 178 (1915). _See also_ Hump Hairpin Co. _v._ Emmerson, 258 U.S. 290 (1922), holding that business done by a corporation through orders which were approved in a State where its tangible property and offices were located, but which were first taken by its salesmen in other States, was interstate, although the tax involved was sustained. [589] Ficklen _v._ Shelby County Taxing District, 145 U.S. 1, 21 (1892). [590] New York ex rel. Hatch _v._ Reardon, 204 U.S. 152 (1907); _Cf._ Nathan _v._ Louisiana, 8 How. 73 (1850). [591] Ware _v._ Mobile County, 209 U.S. 405 (1908). _See also_ Brodnax _v._ Missouri, 219 U.S. 285 (1911). [592] 222 U.S. 210 (1911). [593] 233 U.S. 16 (1914). [594] Ibid. 23. _See also_ Superior Oil _v._ Mississippi ex rel. Knox, 280 U.S. 390 (1930). [595] Chassaniol _v._ Greenwood, 291 U.S. 584 (1934). [596] Wiloil Corp. _v._ Pennsylvania, 294 U.S. 169, 173 (1935); _see also_ Minnesota _v._ Blasius, 290 U.S. 1 (1933). [597] 309 U.S. 33 (1940). [598] Best & Co. _v._ Maxwell. 311 U.S. 454, 455 (1940). [599] 300 U.S. 577 (1937). _Cf._ Hinson _v._ Lott, 8 Wall. 148 (1869). Here was involved a tax of fifty cents per gallon on all spiritous liquors brought into the State. Comparing the tax with a similar one imposed upon liquors manufactured in the State, the Court upheld the statute. "The taxes were complementary and were intended to effect equality." [600] 300 U.S. at 583-584. Some subsequent use tax cases in the Henneford pattern are the following: Bacon & Sons _v._ Martin was decided in a unanimous _per curiam_ opinion. It involved a Kentucky statute which imposed a tax "on the 'receipt' of cosmetics in the State by any Kentucky retailer" equal to twenty per cent of the invoice price plus transportation cost, if any to the Kentucky dealer. The Kentucky court held that "the imposition of the tax against the retailer is not on the act of receiving the cosmetics, but on the sale and use thereof, after the retailer has received them." On this interpretation the Supreme Court sustained the tax. Obviously, other things being equal, there is little difference between a tax on receiving and a tax on possession a moment later. 305 U.S. 380 (1939). In Felt & Tarrant Manufacturing Co. _v._ Gallagher, 306 U.S. 62 (1939), a California use tax was upheld applicable to a nonresident corporation which solicited orders from California purchasers through agents for whom it hired offices in the State and took orders subject to the vendor's approval. In Nelson _v._ Sears, Roebuck & Company and Nelson _v._ Montgomery Ward & Company, 312 U.S. 359 and 373 (1941) it was held that a foreign corporation which maintained retail stores in Iowa could be validly required to collect an Iowa use tax in respect of mail orders sent by Iowa purchasers to out-of-state branches of the corporation and filled by direct shipment by mail or common carrier from those branches to the purchasers. In General Trading Company _v._ State Tax Commission, 322 U.S. 335 (1944), also involving the Iowa tax, it was held that a company carrying on no operations in Iowa other than the solicitation of orders by traveling salesmen was liable for collection of the tax on goods sold to Iowa residents, even though the corporation was not licensed to do business in the State and the orders were forwarded for acceptance to Minnesota where they were filled by direct shipment to Iowa customers. [601] 309 U.S. 33 (1940). [602] Ibid. 53-54. [603] Ibid. 57, citing Ficklen _v._ Shelby County Taxing District, 145 U.S. 1 (1892); Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); and Wagner _v._ Covington, 251 U.S. 95 (1919). In the first it was held that the Robbins case did not apply to a firm of agents and brokers maintaining an office and samples throughout the year in the taxing district. The other two cases were totally irrelevant. [604] 309 U.S. 70 and 430. [605] Ibid. 414. [606] 322 U.S. 327 (1944). [607] Ibid. 330. [608] Ibid. 332. [609] 327 U.S. 416 (1946). [610] Ibid. 417-418. [611] Ibid. 435. [612] Memphis Steam Laundry _v._ Stone, 342 U.S. 389 (1952). [613] Norton Co. _v._ Dept. of Revenue, 340 U.S. 534 (1951), although decided by a closely divided Court, further confirms this impression. [614] 9 Wheat. 1, 217-219 (1824). [615] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849). [616] Henderson _v._ Mayor of New York, 92 U.S. 259 (1876); New York _v._ Compagnie Générale Transatlantique, 107 U.S. 59 (1883). [617] 6 Wall. 35 (1868). [618] Ibid. 49. [619] 114 U.S. 196 (1885). [620] Ibid. 203. [621] _See_ Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894); _also_ Edwards _v._ California, 314 U.S. 160 (1941), the decision in which represents the exact inverse of that in the Crandall Case, being based by the majority on the commerce clause, while several of the Justices preferred to put it on the broader grounds invoked by Justice Miller in the Crandall Case. [622] Western Union Telegraph Company _v._ Texas, 105 U.S. 460 (1882) State Freight Tax Case, 15 Wall. 232 (1873) and Pensacola Telegraph Co. _v._ Western Union Telegraph Co., 96 U.S. 1 (1878) were the precedents principally relied on. [623] 8 Wall. 168 (1869). [624] Ibid. 181. [625] Ibid. 182. [626] 15 Wall. 232, 233-234, 278-279 (1873). [627] 127 U.S. 640 (1888). [628] Ibid. 645. [629] Crutcher _v._ Kentucky, 141 U.S. 47 (1891). [630] Ibid. 57. [631] 266 U.S. 555 (1925). [632] 268 U.S. 203 (1925); followed in Cudahy Packing Co. _v._ Hinkle, 278 U.S. 460 (1929). _Cf._, however, Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250, 255 (1938). [633] Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218 (1933). [634] Cooney _v._ Mountain States Telephone & Telegraph Co., 294 U.S. 384 (1935). [635] Fisher's Blend Station _v._ State Tax Commission, 297 U.S. 650, 656 (1936). [636] Puget Sound Stevedoring Co. _v._ Tax Commission of Washington, 302 U.S. 90 (1937). [637] Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938). [638] McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940). _See also_ the following cases in which the Court found a tax to be an unconstitutional interference with the interstate commerce privilege: Tax on maintenance of office in Pennsylvania for use of stockholders, officers, employees, and agents of railroad not operating in Pennsylvania but a link in a line operating therein, Norfolk & W.R. Co. _v._ Pennsylvania, 136 U.S. 114 (1890); license tax on sale of liquor as applied to a sale out of State by mail, Heyman _v._ Hays, 236 U.S. 178 (1915); tax on pipe lines transporting oil or gas produced in State but which might pass out of State, Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921); United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); Kentucky tax on gasoline purchased in Illinois and used in an Illinois-Kentucky ferry, Helson & Randolph _v._ Kentucky, 279 U.S. 245 (1929); tax laid on privilege of operating a bus in interstate commerce because not imposed solely as compensation for use of highways or to defray expenses of regulating motor traffic, Interstate Transit, Inc. _v._ Lindsey, 283 U.S. 183 (1931); tax on gas pipe line whose only activity in State was the use of a thermometer and reduction of pressure to permit a vendee to draw off gas, State Tax Commission _v._ Interstate Natural Gas Co., 284 U.S. 41 (1931)--but see East Ohio Gas Co. _v._ Tax Commission, 283 U.S. 465 (1931); gasoline tax imposed per gallon of gasoline imported by interstate carriers as fuel for use in their vehicles within the State as well as in their interstate travel, Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936). _See also_, for reiteration of the basic rule that the commerce clause forbids States to tax the privilege of engaging in interstate commerce, Gwin, White & Prince _v._ Henneford, 305 U.S. 434, 438-439 (1939). In California _v._ Thompson, 313 U.S. 109 (1941), the Court, overruling Di Santo _v._ Pennsylvania, 273 U.S. 34 (1927), sustained, as not a "revenue measure," but "a measure to safeguard the traveling public by motor vehicle," who are "particularly unable" to protect themselves against overreaching by those "engaged in a business notoriously subject to abuses," a California statute requiring that agents for this type of transportation take out a license for both their interstate and their intrastate business. [639] 216 U.S. 1 (1910). _Cf._ Osborne _v._ Florida, 164 U.S. 650 (1897), involving an express business; in Pullman Company _v._ Adams, 189 U.S. 420 (1903); and in Allen _v._ Pullman's Palace Car Co., 191 U.S. 171 (1903). Here State taxes levied on the local business of companies engaged also in interstate commerce were sustained "on the assumption" that the companies in question were free to abandon their local business. [640] _See also_ Pullman Co. _v._ Kansas ex rel. Coleman, 216 U.S. 56 (1910); Ludwig _v._ Western Union Teleg. Co., 216 U.S. 146 (1910); Atchison, T. & S.F.R. Co. _v._ O'Connor, 223 U.S. 280, 285 (1912). [641] 245 U.S. 178 (1917). _Cf._ Baltic Mining Co. _v._ Massachusetts, 231 U.S. 68 (1914); Kansas City Ry. _v._ Kansas, 240 U.S. 227 (1916); and Kansas City, M. & B.R. Co. _v._ Stiles, 242 U.S. 111 (1916). In each of these a tax like that involved in Looney _v._ Crane was sustained, in the first two because the statute set a maximum limit to the tax; in the third because the amount collected under the act was held to be "reasonable." The ideology of these decisions is clearly opposed to that of the cases treated in the text. The rule in Looney _v._ Crane Co. was held not applicable in the case of a West Virginia corporation doing business in Illinois and owning practically all of its property there. An Illinois tax on the local business, which was measured by the total capitalization of the company was sustained, it being shown further that the tax was little more than it would have been if levied at the same rate directly on the property of the company that was in Illinois. Hump Hairpin Mfg. Co. _v._ Emmerson, 258 U.S. 290 (1922). [642] 246 U.S. 135 (1918). _See also_ Locomobile Co. of America _v._ Massachusetts, 246 U.S. 146 (1918); Cheney Brothers Co. _v._ Massachusetts, 246 U.S. 147 (1918); Union Pacific R.R. Co. _v._ Pub. Service Comm., 248 U.S. 67 (1918). [643] 246 U.S. at 141. [644] 277 U.S. 163 (1928). [645] Ibid. 171. [646] 294 U.S. 384 (1935). [647] 297 U.S. 403 (1936). [648] Ibid. 415. Headnote 6. [649] 8 Wall. 168, 181 (1869). _See also_ Bank of Augusta _v._ Earle, 13 Pet. 519 (1839); and Security Mut. L. Ins. Co. _v._ Prewitt, 202 U.S. 246 (1906). [650] _See_ Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936); Southern Natural Gas Corp. _v._ Alabama, 301 U.S. 148 (1937); Atlantic Refining Co. _v._ Virginia, 302 U.S. 22 (1937); Coverdale _v._ Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938); Ford Motor Co. _v._ Beauchamp, 308 U.S. 331 (1939); Treasury of Indiana _v._ Wood Corp., 313 U.S. 62 (1941); Wheeling Steel Corp. _v._ Glander, 337 U.S. 562, 571 (1949); _Cf._ however, James _v._ Dravo Contracting Co., 302 U.S. 134 (1937); Memphis Natural Gas Co. _v._ Stone, 335 U.S. 80, 85-86 (1948). [651] Philadelphia & R.R. Co. _v._ Pennsylvania (State Freight Tax Case), 15 Wall. 232 (1873). [652] Prudential Ins. Co. _v._ Benjamin, 328 U.S. 408, 418 (1946). [653] 12 Wheat. 419 (1827). [654] Philadelphia & R.R. Co. _v._ Pennsylvania, 15 Wall. 284 (1873). [655] Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326 (1887). [656] Western Union Tel. Co. _v._ Massachusetts, 125 U.S. 530 (1888). [657] Ibid. 547. [658] _See_ Railroad Co. _v._ Peniston, 18 Wall. 5, 30-31 (1873). [659] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891). [660] Ibid. 26. [661] 165 U.S. 194; upon rehearing 166 U.S. 185 (1897). [662] 166 U.S. at 220. [663] _See_ Justice Holmes' language in Galveston, Harrisburg, & S.A. Ry. Co. _v._ Texas, 210 U.S. 217, 225, 227 (1908). _See also_ Cudahy Packing Co. _v._ Minnesota 246 U.S. 450 (1918); and Pullman Co. _v._ Richardson, 261 U.S. 330 (1923); and Virginia _v._ Imperial Coal Sales Co., 293 U.S. 15 (1934). [664] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891). [665] Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894); Cleveland, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 439 (1894). [666] Western Union Teleg. Co. _v._ Taggart, 163 U.S. 1 (1896). _See also_ Western Union Teleg. Co. _v._ Massachusetts, 125 U.S. 530 (1888). [667] Adams Express Co. _v._ Ohio, 165 U.S. 194 (1897), upon rehearing 166 U.S. 185 (1897). [668] Great Northern Railway Co. _v._ Minnesota, 278 U.S. 503 (1929). [669] Nashville, C. & St. L. Railway _v._ Browning, 310 U.S. 362 (1910). [670] Ibid. 366, citing Union Tank Line Co. _v._ Wright, 249 U.S. 275 (1919); Wallace _v._ Hines, 253 U.S. 66 (1920); Southern R. Co. _v._ Kentucky, 274 U.S. 76 (1927). [671] Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936). _Cf._ Alpha Portland Cement Co. _v._ Massachusetts, 268 U.S. 203 (1925). [672] 142 U.S. 217 (1891). [673] Ibid. 227-228. [674] Citing Pickard _v._ Pullman Southern Car Co., 117 U.S. 34 (1886); Leloup _v._ Port of Mobile, 127 U.S. 640 (1888); Crutcher _v._ Kentucky, 141 U.S. 47 (1891); Philadelphia & S. Mail Steamship Co. _v._ Pennsylvania, 122 U.S. 326 (1887). [675] Galveston, Harrisburg & S.A.R. Co. _v._ Texas, 210 U.S. 217 (1908). [676] Ibid. 226. [677] Postal Telegraph Cable Co. _v._ Adams, 155 U.S. 688, 697 (1895). _See also_ Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940), in which was sustained a five percent gross earnings tax on all railroads operating in the State, payable in lieu of all other taxes and found to have "a fair relation to the property employed in the State." [678] New Jersey Bell Telephone Co. _v._ State Bd. of Taxes & Assessments, 280 U.S. 338 (1930). [679] Bass, Ratcliff & Gretton _v._ State Tax Com., 266 U.S. 271 (1924). [680] Matson Navigation Co. _v._ State Board, 297 U.S. 441 (1936). _See also_ International Shoe Co. _v._ Shartel, 279 U.S. 429 (1929). [681] Ford Motor Co. _v._ Beauchamp, 308 U.S. 331 (1939). [682] International Harvester Co. _v._ Evatt, 329 U.S. 416 (1947). [683] Galveston, Harrisburg & San Antonio R. Co. _v._ Texas, 210 U.S. 217 (1908). [684] Wallace _v._ Hines, 253 U.S. 66 (1920). [685] _See_ pp. 194, 202. _See also_ Interstate Oil Pipe Line Co. _v._ Stone, 337 U.S. 662 (1949) for an extensive review and evaluation of cases. [686] Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940). _See also_ Wisconsin and Michigan Ry. _v._ Powers, 191 U.S. 379 (1903); United States Express Co. _v._ Minnesota, 223 U.S. 335 (1912). _See_ note 13 to Justice Rutledge's opinion in Freeman _v._ Hewit, 329 U.S. at pp. 265-266. [687] Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). _See also_ United States Express Co. _v._ Minnesota, 223 U.S. 335 (1912); Dept. of Treasury of Indiana _v._ Wood Corp., 313 U.S. 62 (1941); Dept. of Treasury of Indiana _v._ Mfg. Co., 313 U.S. 252 (1941); Harvester Co. _v._ Dept. of Treasury, 322 U.S. 340 (1944). [688] Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). [689] Meyer _v._ Wells, Fargo & Co., 223 U.S. 298 (1912); _also_ the following note. [690] Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326 (1887); Ratterman _v._ Western Union Teleg. Co., 127 U.S. 411 (1888); Western Union Teleg. Co. _v._ Alabama Board of Assessment (Seay), 132 U.S. 472 (1889); Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938); Gwin, White & Prince _v._ Henneford, 305 U.S. 434 (1939). _Cf._ Fargo _v._ Michigan (Fargo _v._ Stevens), 121 U.S. 230 (1887), as explained in Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). [691] Lockhart, Gross Receipts Taxes on Interstate Transportation and Communication, 57 Harvard L. Rev. 40, 65, 66 (1943); Galveston, H. & S.A.R. Co. _v._ Texas, 210 U.S. 217 (1908); New Jersey Bell Teleph. Co. _v._ State Bd. of Taxes and Assessments, 280 U.S. 338 (1930). But _Cf._ Nashville, C. and St. L. Ry. _v._ Browning, 310 U.S. 362 (1940). In both the Galveston and New Jersey Telephone Company cases, although the taxable events all occurred within the taxing State, the possibility of multiple taxation was nevertheless present. _See also_ Puget Sound Stevedoring Co. _v._ State Tax Commission, 302 U.S. 90 (1937), the decision in which might have been rested upon the clause of the Constitution forbidding the States to tax exports. _See also_ Richfield Oil Corp. _v._ State Board of Equalization, 329 U.S. 69 (1946). [692] Fisher's Blend Station _v._ State Tax Comm., 297 U.S. 650 (1936); Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). [693] _See_ p. 193. [694] _See_ pp. 150-160. [695] _See_ p. 189. [696] 303 U.S. 250 (1938). [697] Ibid. 254. [698] Ibid. 255-256. [699] 305 U.S. 434 (1939). [700] Ibid. 439-440. [701] 305 U.S. at 455 (1939). [702] _See_ McCarroll _v._ Dixie Greyhound Lines, Inc., 309 U.S. 176, 188-189 (1940). [703] Freeman _v._ Hewit, 329 U.S. 249 (1946). [704] 329 U.S. 249. [705] The Court relied particularly on Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938) in which the multiple taxation test had been used. [706] Justice Black dissented without opinion. Justice Douglas, speaking also for Justice Murphy, contended that the sale had been local, and that the only interstate agency employed had been the mails, an argument which squares badly with the attitude of the same Justices in United States _v._ South-Eastern Underwriters Assoc., 322 U.S. 533 (1944). [707] 330 U.S. 422 (1947), reaffirming Puget Sound Stevedoring Co. _v._ Tax Comm., 302 U.S. 90 (1937). [708] 330 U.S. at 433. [709] Justices Murphy, Douglas, and Rutledge thought the decision correct as to receipts from foreign commerce. Speaking for them, Justice Douglas made an effort to resurrect Maine _v._ Grand Trunk R. Co., 142 U.S. 217 (1891). Justice Black dissented without opinion. [710] 334 U.S. 653. [711] Ibid. 663, citing Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938); and Ratterman _v._ Western Union Teleg. Co., 127 U.S. 411 (1888). [712] 335 U.S. 80. [713] 337 U.S. 662, 666, 677-678, 680. [714] _See supra_, pp. 196, 204-207. [715] 247 U.S. 321 (1918). [716] Ibid. 328-329. [717] Shaffer _v._ Carter, 252 U.S. 37 (1920). [718] Underwood Typewriter Co. _v._ Chamberlain, 254 U.S. 113 (1920); Bass, Ratcliff & Gretton _v._ State Tax Commission, 266 U.S. 271 (1924). [719] Hans Rees' Sons _v._ North Carolina, 283 U.S. 123, 132, 133 (1931). In this case a North Carolina tax was assessed on the income of a New York corporation, which bought leather, manufactured it in North Carolina, and sold its products at wholesale and retail in New York. The Court observed: "The difficulty of making an exact apportionment is apparent and hence, when the State has adopted a method not intrinsically arbitrary, it will be sustained until proof is offered of an unreasonable and arbitrary application in particular cases." The decisions in the Underwood and Bass cases, _supra_, "are not authority for the conclusion that where a corporation manufactures in one State and sells in another, the net profits of the entire transaction, as a unitary enterprise, may be attributed, regardless of evidence, to either State." [720] Atlantic Coast Line _v._ Daughton, 262 U.S. 413 (1923). [721] Matson Nav. Co. _v._ State Board, 297 U.S. 441 (1936). _See also_ Butler Bros. _v._ McColgan, 315 U.S. 501 (1942), where the tax was sustained under the Fourteenth Amendment. [722] Memphis Gas Co. _v._ Beeler, 315 U.S. 649 (1942). [723] Ibid. 656-657 [724] Spector Motor Service _v._ O'Connor, 340 U.S. 602 (1951). [725] 114 U.S. 196 (1885). [726] Hays _v._ Pacific Mail S.S. Co., 17 How. 596 (1855). [727] Packet Co. _v._ Keokuk, 95 U.S. 80 (1877); _see also_ Transportation Co. _v._ Parkersburg, 107 U.S. 691 (1883). [728] Ayer & L. Tie Co. _v._ Kentucky, 202 U.S. 409 (1906). For a résumé of the rules for taxing vessels _see_ Northwest Airlines _v._ Minnesota, 322 U.S. 292, 314-315 (1944), note 2. [729] Old Dominion S.S. Co. _v._ Virginia, 198 U.S. 299 (1905): a vessel enrolled in New York at domicile of owner, but operating wholly in Virginia, was held taxable in Virginia. [730] 336 U.S. 169 (1949). [731] Northwest Airlines _v._ Minnesota, 322 U.S. 292 (1944). [732] He also invoked New York Central and H.R.R. Co. _v._ Miller, 202 U.S. 584 (1906), where although 12 to 64 per cent of the rolling stock of the railroad was outside of New York throughout the tax year, New York was nevertheless allowed to tax it all because no part was in any other State throughout the year. The case is atypical, a constitutional sport; _cf._ Union Refrigerator Transit Co. _v._ Kentucky, 199 U.S. 194 (1905). [733] 322 U.S. at 301-302. [734] "The apportionment theory is a mongrel one, a cross between desire not to interfere with State taxation and desire at the same time not utterly to crush out interstate commerce. It is a practical, but rather illogical, device to prevent duplication of tax burdens on vehicles in transit. It is established in our decisions and has been found more or less workable with more or less arbitrary formulae of apportionment. Nothing either in theory or in practice commends it for transfer to air commerce."--Ibid. 306. [735] Ibid. 308. [736] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891). [737] 322 U.S. 309. [738] 235 U.S. 610 (1915). [739] Ibid. 622. [740] Hendrick _v._ Maryland, 235 U.S. 610 (1915). [741] Kane _v._ New Jersey, 242 U.S. 160 (1916). [742] Morf _v._ Bingaman, 298 U.S. 407 (1936). [743] Ingels _v._ Morf, 300 U.S. 290 (1937). [744] Clark _v._ Poor, 274 U.S. 554 (1927); Hicklin _v._ Coney, 290 U.S. 109 (1933). [745] Interstate Busses Corp. _v._ Blodgett, 276 U.S. 245 (1928); Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932). [746] Aero Mayflower Transit Co. _v._ Georgia Pub. Serv. Commission, 295 U.S. 285 (1935). [747] Interstate Transit _v._ Lindsey, 283 U.S. 183 (1931). _Cf._ Sprout _v._ South Bend, 277 U.S. 163 (1928). [748] _See_ Dixie Ohio Express Co. _v._ State Rev. Comm., 306 U.S. 72 (1939); _also_ Clark _v._ Paul Gray, Inc., 306 U.S. 583 (1939); Aero Mayflower Transit Co. _v._ Board of R.R. Commrs., 332 U.S. 495, 503-504 (1947). Here was sustained a State statute imposing a flat tax of $10 annually upon each vehicle operated by a motor carrier over the State's highways, and a fee of one half of one per cent of the carrier's gross operating revenue from its operations within the State, with an annual minimum of $15 per vehicle, in consideration of the use of the highways and in addition to all other motor vehicle license fees and taxes. This was held, as applied to a carrier engaged solely in interstate commerce, not to burden such commerce unconstitutionally, although the proceeds went into the State's general fund subject to appropriation for other than highway purposes. (Opinion by Rutledge, J., all concurring.) While a "State may not discriminate against or exclude such interstate traffic generally in the use of its highways, * * * [it is not] required to furnish those facilities to it free of charge or indeed on equal terms with other traffic not inflicting similar destructive effects. * * * Interstate traffic equally with intrastate may be required to pay a fair share of the cost and maintenance reasonably related to the use made of the highways." Ibid., headnote 6. [749] 339 U.S. 542 (1950). [750] Ibid. 561. [751] Justice Roberts for the Court in Great Northern R. Co. _v._ Washington, 300 U.S. 154, 159-161 (1937). [752] Charlotte, C. & A.R. Co. _v._ Gibbes, 142 U.S. 386 (1892); New York ex rel. New York Electric Lines Co. _v._ Squire, 145 U.S. 175, 191 (1892). [753] Atlantic & P. Teleg. Co. _v._ Philadelphia, 190 U.S. 160 (1903); Mackay Teleg. & Cable Co. _v._ Little Rock, 250 U.S. 94, 99 (1919). [754] Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419, 425 (1903); Pure Oil Co. _v._ Minnesota, 248 U.S. 158, 162 (1918). [755] New Mexico ex rel. McLean _v._ Denver & R.G.R. Co., 203 U.S. 38, 55 (1906). _Cf._ Red "C" Oil Mfg. Co. _v._ Board of Agriculture, 222 U.S. 380, 393 (1912); Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419 (1903). [756] Brimmer _v._ Rebman, 138 U.S. 78, 83 (1891); Postal Teleg. & Cable Co. _v._ Taylor, 192 U.S. 64 (1904); Pure Oil Co. _v._ Minnesota, 248 U.S. 158, 162 (1918). [757] Atlantic & P. Teleg. Co. _v._ Philadelphia, 190 U.S. 160, 164 (1903); Postal Teleg. Cable Co. _v._ Taylor, 192 U.S. 64, 69 (1904); Foote & Co. _v._ Stanley, 232 U.S. 494, 503, 504 (1914). [758] Foote & Co. _v._ Stanley, 232 U.S. 494, 505 (1914); Lugo _v._ Suazo, 59 F. (2d) 386 (1932). [759] Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419, 425 (1903); Foote & Co. _v._ Stanley, 232 U.S. 494, 507 (1914). [760] Postal Teleg. Cable Co. _v._ New Hope, 192 U.S. 55 (1904); Foote & Co. _v._ Stanley, 232 U.S. 494, 508 (1914). [761] 10 Stat. 112. Sustained in Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421 (1856). [762] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518 (1852). [763] Transportation Co. _v._ Parkersburg, 107 U.S. 691, 701 (1883). [764] 322 U.S. 533 (1944). [765] 59 Stat. 33 (1945). [766] 328 U.S. 408 (1946). [767] Ibid. 429-430, 434-435. [768] _See_ pp. 163-172. [769] 9 Wheat. 1 (1824). [770] Ibid. 203. [771] 12 Wheat. 419 (1827). [772] Ibid. 443-444. [773] _Cf._ 12 Wheat. at 439-440. [774] 11 Pet. 102 (1837). [775] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849). [776] Henderson _v._ New York, 92 U.S. 259 (1876). [777] Ibid. 272. [778] Chy Lung _v._ Freeman, 92 U.S. 275 (1876). [779] Compagnie Francaise de Navigation _v._ Bd. of Health, 186 U.S. 380, 398, (1902). _See also_ Morgan's L. & T.R.S.S. Co. _v._ Bd. of Health, 118 U.S. 455 (1886); Louisiana _v._ Texas, 176 U.S. 1, 21 (1900). [780] 211 U.S. 31, 36-37 (1908). [781] As to concessions by the Court to the practical necessities of enforcement, _see also_ Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936); and Whitfield _v._ Ohio, 297 U.S. 431 (1936). [782] 325 U.S. 761, 766-767. [783] Ibid. 767; citing: Minnesota Rate Cases, 230 U.S. 352, 399, 400 (1913); South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. 177, 187 (1938), et seq.; California _v._ Thompson, 313 U.S. 109, 113, 114 (1941) and cases cited; Parker _v._ Brown, 317 U.S. 341, 359, 360 (1943). [784] 325 U.S. at 767; citing: Cooley _v._ Board of Wardens, 12 How. at 319 (1851); South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. at 185; California _v._ Thompson, 313 U.S. at 113; Duckworth _v._ Arkansas, 314 U.S. 390, 394 (1941); Parker _v._ Brown, 317 U.S. at 362, 363. [785] 325 U.S. at 767; citing: South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. at 188 and cases cited; Lone Star Gas Co. _v._ Texas, 304 U.S. 224, 238 (1938); Milk Board _v._ Eisenberg Co., 306 U.S. 346, 351 (1939); Maurer _v._ Hamilton, 309 U.S. 598, 603 (1940); California _v._ Thompson, 313 U.S. 113, 114 and cases cited. [786] 325 U.S. at 767, 768; citing: Cooley _v._ Board of Wardens, 12 How. at 319 (1851); Leisy _v._ Hardin, 135 U.S. 100, 108, 109 (1890); Minnesota Rate Cases, 230 U.S. at 399, 400 (1913); Edwards _v._ California, 314 U.S. 160, 176 (1941). [787] 325 U.S. at 768; citing: Brown _v._ Maryland, 12 Wheat. 419, 447 (1827); Minnesota Rate Cases, 230 U.S. at 399, 400; Pennsylvania _v._ West Virginia, 262 U.S. 553, 596 (1923); Baldwin _v._ Seelig, 294 U.S. 511, 522 (1935); South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. at 185 (1938). [788] 325 U.S. at 768; citing: Welton _v._ Missouri, 91 U.S. 275, 282 (1876); Hall _v._ DeCuir, 95 U.S. 485, 490 (1878); Brown _v._ Houston, 114 U.S. 622, 631 (1885); Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 481, 482 (1888); Leisy _v._ Hardin, 135 U.S. at 109; In re Rahrer, 140 U.S. 545, 559, 560 (1891); Brennan _v._ Titusville, 153 U.S. 289, 302 (1894); Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204, 212 (1894); Graves _v._ New York ex rel. O'Keefe, 306 U.S. 466, 479 (1939); Dowling, Interstate Commerce and State Power, 27 Va. Law Rev. 1 (1940). [789] 325 U.S. at 769; citing: Parker _v._ Brown. 317 U.S. at 362 (1943); Terminal Railroad Assn. _v._ Brotherhood, 318 U.S. 1, 8 (1943); _see_ Di Santo _v._ Pennsylvania, 273 U.S. 34, 44 (1927) (and compare California _v._ Thompson, 313 U.S. 109 (1941)); Illinois Gas Co. _v._ Public Service Co., 314 U.S. 498, 504, 505 (1942). [790] 325 U.S. at 769; citing: Cooley _v._ Board of Wardens, 12 How. 299 (1851); Kansas City Southern R. Co. _v._ Kaw Valley District, 233 U.S. 75, 79 (1914); South Covington R. Co. _v._ Covington, 235 U.S. 537, 546 (1915); Missouri, K. & T.R. Co. _v._ Texas, 245 U.S. 484, 488 (1918); St. Louis & S.F.R. Co. _v._ Public Service Comm'n., 254 U.S. 535, 537 (1921): Foster-Fountain Packing Co. _v._ Haydel, 278 U.S. 1, 10 (1928); Gwin, White & Prince _v._ Henneford, 305 U.S. 434, 441 (1939); McCarroll _v._ Dixie Lines, 309 U.S. 176 (1940). [791] 325 U.S. at 769; citing: In re Rahrer, 140 U.S. at 561, 562 (1891); Adams Express Co. _v._ Kentucky, 238 U.S. 190, 198 (1915); Rosenberger _v._ Pacific Express Co., 241 U.S. 48, 50, 51 (1916); Clark Distilling Co. _v._ Western Maryland R. Co., 242 U.S. 311, 325, 326 (1917); Whitfield _v._ Ohio, 297 U.S. 431, 438-440 (1936); Kentucky Whip & Collar Co. _v._ Illinois Central R. Co., 299 U.S. 334, 350, 351 (1937); Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 679 (1945). [792] 325 U.S. at 769, 770; citing: Addyston Pipe & Steel Co. _v._ United States, 175 U.S. 211, 230 (1899); Louisville & Nashville R. Co. _v._ Mottley, 219 U.S. 467 (1911); Houston, E. & W.T.R. Co. _v._ United States, 234 U.S. 342 (1914); American Express Co. _v._ Caldwell, 244 U.S. 617, 626 (1917); Illinois Central R. Co. _v._ Public Utilities Comm'n., 245 U.S. 493, 506 (1918); New York _v._ United States, 257 U.S. 591, 601 (1922); Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284 U.S. 125, 130 (1931); Pennsylvania R. Co. _v._ Illinois Brick Co., 297 U.S. 447, 459, (1936). [793] 325 U.S. at 770; citing: Gwin, White & Prince _v._ Henneford, 305 U.S. 434, 441 (1939). [794] 325 U.S. at 770; citing: Terminal Railroad Assn. _v._ Brotherhood, 318 U.S. 1, 8 (1943); Southern R. Co. _v._ King, 217 U.S. 524 (1910). [795] Peik _v._ Chicago & N.W.R. Co., 94 U.S. 164 (1877). [796] Wabash, St. L. & P.R. Co. _v._ Illinois, 118 U.S. 557 (1886). [797] 24 Stat. 379 (1887). [798] Wisconsin Railroad Com. _v._ Chicago, B. & Q.R.R. Co., 257 U.S. 563 (1922). [799] Gladson _v._ Minnesota, 166 U.S. 427 (1897); followed in Lake Shore & M.S.R. Co. _v._ Ohio ex rel. Lawrence, 173 U.S. 285 (1899), in which an Ohio statute requiring that "each company shall cause three, each way, of its regular trains carrying passengers, * * * Sundays excepted, to stop at a station, city or village, containing three thousand inhabitants, for a time sufficient to receive and let off passengers; * * *" was sustained. [800] Illinois Central R.R. Co. _v._ Illinois, 163 U.S. 142, 153 (1896). [801] Chicago, Burlington & Quincy R.R. Co. _v._ Wisconsin R.R. Com., 237 U.S. 220, 226 (1915); St. Louis & San Francisco R. Co. _v._ Public Service Com., 254 U.S. 535, 536-537 (1921). [802] St. Louis & San Francisco R. Co. _v._ Public Service Com., 261 U.S. 369, 371 (1923). [803] Wisconsin, Minnesota & Pacific R.R. _v._ Jacobson, 179 U.S. 287 (1900). [804] Missouri P.R. Co. _v._ Larabee Flour Mills Co., 211 U.S. 612 (1909). [805] McNeill _v._ Southern R. Co., 202 U.S. 543 (1906). [806] St. Louis S.W.R. Co. _v._ Arkansas, 217 U.S. 136 (1910). [807] _See e.g._ The Court's language in Hannibal & St. L.R. Co. _v._ Husen, 95 U.S. 465, 470 (1878); New York, N.H. & H.R. Co. _v._ New York, 165 U.S. 628, 631 (1897); Lake Shore & M.S.R. Co. _v._ Ohio ex rel. Lawrence, 173 U.S. 285, 292 (1899); Hennington _v._ Georgia, 163 U.S. 299 (1896); Simpson _v._ Shepard (Minnesota Rate Cases), 230 U.S. 352, 402-410 (1913). [808] Smith _v._ Alabama, 124 U.S. 465 (1888); _see also_ Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96 (1888); McCall _v._ California, 136 U.S. 104 (1890); Missouri, K. & T.R. Co. _v._ Haber, 109 U.S. 613, 633 (1898). [809] New York, N.H. & H.R. Co. _v._ New York, 165 U.S. 628 (1807). _See also_ Chicago, M. & St. P.R. Co. _v._ Solan, 169 U.S. 133, 137 (1898). [810] Erb _v._ Morasch, 177 U.S. 584 (1900). [811] Erie R.R. Co. _v._ Public Utility Commrs., 254 U.S. 394 (1921). [812] Atchison, T. & S.F.R. Co. _v._ R.R. Comm., 283 U.S. 380 (1931). [813] Chicago, R.I. & P.R. Co. _v._ Arkansas, 219 U.S. 453 (1911). [814] Ibid, 453, 466. _See also_ St. Louis, I.M. & S. Co. _v._ Arkansas, 240 U.S. 518 (1916); Missouri P.R. Co. _v._ Norwood, 283 U.S. 249 (1931). [815] Terminal Railroad Assn. _v._ Brotherhood, 318 U.S. 1 (1943). [816] 163 U.S. 299 (1896). In South Covington R. Co. _v._ Covington, 235 U.S. 537 (1915), the Court sustained a municipal ordinance which prohibits the company from allowing passengers to ride on the rear or front platforms without suitable barriers, and requires that the cars be kept clean and ventilated and fumigated. However, provisions of the ordinance that cars shall never be permitted to fall below a certain temperature and regulating the number of passengers to be carried in the cars were held to be unreasonable and violative of the commerce clause. There was no unconstitutional interference with interstate commerce by a municipal ordinance which directed a railway company to remove its tracks from a busy street intersection. Denver & R.G.R. Co. _v._ Denver, 250 U.S. 241 (1919). [817] Chicago, M. & St. P.R. Co. _v._ Solan, 169 U.S. 133 (1898); Richmond & A.R. Co. _v._ Patterson Tobacco Co., 169 U.S. 311 (1898). [818] 325 U.S. 761, 779-780 (1945). [819] Kansas City Southern R. Co. _v._ Kaw Valley Drainage Dist., 233 U.S. 75, 79 (1914). [820] 244 U.S. 310 (1917). [821] _Cf._ Southern R. Co. _v._ King, 217 U.S. 524 (1910), where the crossings were fewer and the burden to interstate commerce was shown not to be unduly heavy. [822] 302 U.S. 1, 15 (1937). [823] 325 U.S. 761, 771-776. [824] 328 U.S. 373, 380, 386 (1946). [825] Hendrick _v._ Maryland, 235 U.S. 610 (1915); Kane _v._ New Jersey, 242 U.S. 160 (1916). [826] Sproles _v._ Binford, 286 U.S. 374 (1932). _See also_ Morris _v._ Duby, 274 U.S. 135 (1927). [827] South Carolina State Highway Dept. _v._ Barnwell Bros. Inc., 303 U.S. 177 (1938). [828] 289 U.S. 92 (1933). [829] 309 U.S. 598 (1940). [830] 306 U.S. 79 (1939). [831] Eichholz _v._ Public Service Com. of Missouri, 306 U.S. 268 (1939), citing Cooley _v._ Board of Wardens, 12 How. 299 (1851). [832] Railway Express Agency _v._ New York, 336 U.S. 106 (1949). [833] Ibid. 111. For a more extreme application of this idea by a narrowly divided Court, in a quite special situation, _see_ Buck et al. _v._ California, 342 U.S. 99 (1952). [834] Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932); Stephenson _v._ Binford, 287 U.S. 251 (1932); Hicklin _v._ Coney, 290 U.S. 169 (1933). [835] Michigan Pub. Utilities Com. _v._ Duke, 266 U.S. 570 (1925). _See also_ Smith _v._ Cahoon, 283 U.S. 553 (1931); and Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932). [836] Buck _v._ Kuykendall, 267 U.S. 307 (1925). _See also_, Bush & Sons Co. _v._ Maloy, 267 U.S. 317 (1925); Interstate Busses Corp. _v._ Holyoke Street R. Co., 273 U.S. 45 (1927). [837] 273 U.S. 34 (1927). _See also_ McCall _v._ California, 136 U.S. 104 (1890). In the former case, agents soliciting patronage for steamship lines were involved; in the latter, an agent soliciting patronage for a particular railway line. [838] California _v._ Thompson, 313 U.S. 109, 115-116 (1941). [839] 9 Wheat. 1 (1824). [840] 2 Pet. 245, 252 (1829). [841] 12 How. 299 (1851). [842] Foster _v._ Davenport, 22 How. 244 (1859); Sinnot _v._ Davenport, 22 How. 227 (1859). _See also_ Lord _v._ Steamship Co., 102 U.S. 541 (1881). [843] Foster _v._ Master & Wardens of Port of New Orleans, 94 U.S. 246 (1877). [844] Ibid. 247. [845] Northern Transp. Co. _v._ Chicago, 99 U.S. 635, 643 (1879); Willamette Iron Bridge Co. _v._ Hatch, 125 U.S. 1 (1888); Illinois _v._ Economy Power Light Co., 234 U.S. 497 (1914). [846] Economy Light and Power Co. _v._ United States, 256 U.S. 113 (1921). [847] Harman _v._ Chicago, 147 U.S. 396, 412 (1893). [848] 302 U.S. 1 (1937). [849] Ibid. 10. [850] 333 U.S. 28 (1948). [851] Hall _v._ De Cuir, 95 U.S. 485 (1878). [852] 2 Pet. 245 (1829). [853] Pound _v._ Turck, 95 U.S. 459 (1878); Lindsay & Phelps Co. _v._ Mullen, 176 U.S. 126 (1900). [854] 3 Wall. 713 (1866). [855] Ibid. 729. _See also_, Escanaba & L.M. Transp. Co. _v._ Chicago, 107 U.S. 678 (1883); and Cardwell _v._ American River Bridge Co., 113 U.S. 205 (1885). [856] 119 U.S. 543 (1886). [857] Ibid. 548-549. [858] Packet Co. _v._ Keokuk, 95 U.S. 80 (1877); Ouachita Packet Co. _v._ Aiken, 121 U.S. 444 (1887). [859] Prosser _v._ Northern P.R. Co., 152 U.S. 59 (1894). _See also_ Sands _v._ Manistee R. Imp. Co., 123 U.S. 288 (1887); Gring _v._ Ives, 222 U.S. 365 (1912). [860] Cases cited in note 7 above;[Transcriber's Note: Reference is to Footnote 858, above.] Parkersburg & O. Transp. Co. _v._ Parkersburg, 107 U.S. 691 (1883). [861] Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196, 215 (1885); Conway _v._ Taylor, 1 Black 603 (1862); Wiggins Ferry Co. _v._ East St. Louis, 107 U.S. 365 (1883). [862] Mayor and Board of Aldermen of Vidalia _v._ McNeely, 274 U.S. 676 (1927). _See also_ Helson _v._ Kentucky, 279 U.S. 245, 249 (1929). [863] Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894). [864] Port Richmond and Bergen Point Ferry Co. _v._ Bd. of Chosen Freeholders, 234 U.S. 317 (1914). [865] New York Central & H.R.R. Co. _v._ Bd. of Chosen Freeholders, 227 U.S. 248 (1913). [866] Wilmington Transp. Co. _v._ R.R. Com., 236 U.S. 151 (1915). [867] Western U. Teleg. Co. _v._ Pendleton, 122 U.S. 347 (1887). [868] Western U. Teleg. Co. _v._ Foster, 247 U.S. 105 (1918). [869] Western U. Teleg. Co. _v._ Crovo, 220 U.S. 364 (1911). [870] Western U. Teleg. Co. _v._ Commercial Milling Co., 218 U.S. 406 (1910). [871] Western U. Teleg. Co. _v._ Brown, 234 U.S. 542 (1914). [872] Essex _v._ New England Teleg. Co., 239 U.S. 313 (1915). [873] Pensacola Teleg. Co. _v._ Western U. Teleg. Co., 96 U.S. 1 (1878). [874] Western Union Teleg. Co. _v._ Richmond, 224 U.S. 160 (1912). _See also_ Postal Teleg. Cable Co. _v._ Richmond, 249 U.S. 252 (1919). [875] Northwestern Bell Teleph. Co. _v._ Nebraska State R. Com., 297 U.S. 471 (1936). [876] Bell Tel. Co. _v._ Pennsylvania Public Util. Com., 309 U.S. 30 (1940). [877] Missouri ex rel. Barrett _v._ Kansas Natural Gas Co., 265 U.S. 298 (1924). [878] Public Utilities Com. _v._ Attleboro Steam & Electric Co., 273 U.S. 83 (1927). [879] Pennsylvania Natural Gas Co. _v._ Public Serv. Com., 252 U.S. 23 (1920); Public Utilities Com. _v._ Landon, 249 U.S. 236 (1919). [880] Panhandle Eastern Pipe Lines Co. _v._ Public Serv. Com., 332 U.S. 507 (1947). [881] Panhandle Co. _v._ Michigan Comm'n., 341 U.S. 329 (1951). [882] Peoples Natural Gas Co. _v._ Public Serv. Com., 270 U.S. 550 (1926). [883] East Ohio Gas Co. _v._ Tax Com. of Ohio, 283 U.S. 465 (1931). [884] Western Distributing Co. _v._ Public Serv. Com. of Kansas, 285 U.S. 119 (1932). [885] Arkansas Louisiana Gas Co. _v._ Dept. of Public Utilities, 304 U.S. 61 (1938). [886] Lone Star Gas Co. _v._ Texas, 304 U.S. 224 (1938). [887] Cities Service Co. _v._ Peerless Co., 340 U.S. 179 (1950). [888] Union Brokerage Co. _v._ Jensen, 322 U.S. 202 (1944). _See also_ International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914); Sioux Remedy Co. _v._ Cope, 235 U.S. 197 (1914); Interstate Amusement Co. _v._ Albert, 239 U.S. 560 (1916). [889] 322 U.S. at 207-209. [890] Sioux Remedy Co. _v._ Cope, 235 U.S. 197 (1914). [891] International Milling Co. _v._ Columbia T. Co., 292 U.S. 511 (1934). [892] Natural Gas Pipeline Co. _v._ Slattery, 302 U.S. 300 (1937). [893] Engel _v._ O'Malley, 219 U.S. 128 (1911). [894] Merrick _v._ Halsey & Co., 242 U.S. 568 (1917). _See also_ Hall _v._ Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell _v._ Sioux Falls Stock Yards Co., 242 U.S. 559 (1917). [895] Hartford Accident & Indemnity Co. _v._ Illinois ex rel. McLaughlin, 298 U.S. 155 (1936), citing Cargill Co. _v._ Minnesota, 180 U.S. 452, 470 (1901); Simpson _v._ Shepard (Minnesota Rate Case), 230 U.S. 352, 410 (1913); Hall _v._ Geiger-Jones Co., 242 U.S. 539, 557 (1917); Federal Compress & Warehouse Co. _v._ McLean, 291 U.S. 17 (1934). [896] Davis _v._ Cleveland, C.C. & St. L. Co., 217 U.S. 157 (1910). [897] Martin _v._ West, 222 U.S. 191 (1911). [898] The "Winnebago," 205 U.S. 354, 362 (1907). [899] Justice Hughes for the Court in Minnesota Rate Cases (Simpson _v._ Shepard), 230 U.S. 352, 406 (1913). [900] Ibid. 408. [901] Railroad Co. _v._ Husen, 95 U.S. 465 (1878). [902] Kimmish _v._ Ball, 129 U.S. 217 (1889). [903] Smith _v._ St. Louis & S.W.R. Co., 181 U.S. 248 (1901). [904] Ibid. 255. Morgan's S.S. Co. _v._ Louisiana Bd. of Health, 118 U.S. 455 (1886) is cited. [905] Hebe Co. _v._ Shaw, 248 U.S. 297 (1919). [906] Hygrade Provision Co. _v._ Sherman, 266 U.S. 497 (1925). [907] Mintz _v._ Baldwin, 289 U.S. 346 (1933). [908] Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935). [909] Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936). [910] Highland Farms Dairy, Inc. _v._ Agnew, 300 U.S. 608 (1937). [911] Bourjois, Inc. _v._ Chapman, 301 U.S. 183 (1937). [912] Clason _v._ Indiana, 306 U.S. 439 (1939). [913] Milk Control Bd. _v._ Eisenberg Farm Products, 306 U.S. 346 (1939). [914] Patapsco Guano Co. _v._ North Carolina, 171 U.S. 345 (1898). [915] Savage _v._ Jones, 225 U.S. 501 (1912); followed in Corn Products Refining Co. _v._ Eddy, 249 U.S. 427 (1919). [916] Pure Oil Co. _v._ Minnesota, 248 U.S. 158 (1918). [917] Mutual Film Corp. _v._ Hodges, 236 U.S. 248 (1915). [918] Minnesota _v._ Barber, 136 U.S. 313 (1890); _see also_ Brimmer _v._ Rebman, 138 U.S. 78 (1891). [919] 136 U.S. at 322. _See also_ pp. 328-329. [920] Voight _v._ Wright, 141 U.S. 62 (1891). [921] Hale _v._ Bimco Trading Co., 306 U.S. 375 (1939). [922] Dean Milk Co. _v._ Madison, 340 U.S. 349 (1951). [923] 12 Wheat. 419 (1827). [924] Ibid. 449. [925] Woodruff _v._ Parham, 8 Wall. 123 (1869). There were later some departures from the rule, apparently due to inattention, in cases involving oil. _See_ Standard Oil _v._ Graves, 249 U.S. 389 (1919); Askren _v._ Continental Oil Co., 252 U.S. 444 (1920); Bowman _v._ Continental Oil Co., 256 U.S. 642 (1921) and Texas Co. _v._ Brown, 258 U.S. 466 (1922). These cases were "qualified," and in fact disavowed in Sonneborn Bros. _v._ Cureton, 262 U.S. 506, 520 (1923). _Cf._ the contemporary case of Wagner _v._ Covington, 251 U.S. 95 (1912) where the true rule is followed. [926] Mugler _v._ Kansas, 123 U.S. 623 (1887). [927] Kidd _v._ Pearson, 128 U.S. 1 (1888). [928] 125 U.S. 465 (1888). [929] Leisy & Co. _v._ Hardin, 135 U.S. 100 (1890). [930] 26 Stat. 313 (1890); sustained in In re Rahrer, 140 U.S. 545 (1891). [931] Rhodes _v._ Iowa, 170 U.S. 412 (1898). [932] 37 Stat. 699 (1913); sustained in Clark Distilling Co. _v._ Western Md. Ry. Co., 242 U.S. 311 (1917). [933] Austin _v._ Tennessee, 179 U.S. 343 (1900). [934] 155 U.S. 461 (1894). [935] 135 U.S. 100 (1890). [936] 155 U.S. at 474. [937] Schollenberger _v._ Pennsylvania, 171 U.S. 1 (1898). [938] Collins _v._ New Hampshire, 171 U.S. 30 (1898). [939] _See_ note 1 above. [Transcriber's Note: Reference is to Footnote 933, above.] [940] State Board _v._ Young's Market Co., 299 U.S. 59 (1936); Finch & Co. _v._ McKittrick, 305 U.S. 395 (1939); Brewing Co. _v._ Liquor Comm'n., 305 U.S. 391 (1939); Ziffrin, Inc. _v._ Reeves, 308 U.S. 132 (1939). [941] Duckworth _v._ Arkansas, 314 U.S. 390 (1941); followed in Carter _v._ Virginia, 321 U.S. 131 (1944). Justice Jackson would have preferred to rest the decision on the Twenty-first Amendment instead of "what I regard as an unwise extension of State power over interstate commerce," 314 U.S. at 397; and appears to have converted Justice Frankfurter. _See_ latter's opinion in 321 U.S. at 139-143. [942] 297 U.S. 431 (1936). [943] 45 Stat 1084 (1929). [944] 297 U.S. at 440. _See also_ Justice Cardozo's remarks in Baldwin _v._ Seelig, 294 U.S. 511, 526-527 (1935). [945] _Cf._ Plumley _v._ Massachusetts, 155 U.S. 461 (1894); Savage _v._ Jones, 225 U.S. 501 (1912); Corn Products Refining Co. _v._ Eddy, 249 U.S. 427 (1919). [946] Elkison _v._ Deliesseline, 8 Fed. Cas. No. 4366 (1823). [947] For interesting particulars _see_ 2 Charles Warren, The Supreme Court in United States History, 84-87. [948] 1 Op. Atty. Gen. 659. [949] 2 Op. Atty. Gen. 426. [950] 11 Pet. 102 (1837). [951] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849). [952] Crandall _v._ Nevada, 6 Wall. 35 (1868). [953] 314 U.S. 160 (1941). [954] Ibid. 172. [955] Ibid. 173. Justice Cardozo's words, quoted by Justice Byrnes, occur in Baldwin _v._ Seelig, 294 U.S. 511, 523 (1935). Justice Byrnes' answer to another argument of the State, based on historical conceptions of the word "indigent," was, "poverty and immorality are not synonymous." [956] _See_ especially Justice Douglas' forceful opinion. 314 U.S. 177-181. [957] 161 U.S. 519 (1896). [958] Hudson County Water Co. _v._ McCarter, 209 U.S. 349 (1908). [959] 221 U.S. 229 (1911). [960] Ibid. 255-256. [961] 262 U.S. 553 (1923). [962] 237 U.S. 52 (1915). [963] Ibid. 61. [964] 258 U.S. 50, 61 (1922). [965] 258 U.S. 50 (1922); 66 L. Ed. 458, Hd. 2. [966] _See_ pp. 193-195. [967] 291 U.S. 502 (1934); followed in Hegeman Farms Corp. _v._ Baldwin, 293 U.S. 163 (1934). [968] 294 U.S. 511 (1935). [969] Milk Control Bd. _v._ Eisenberg Farm Products, 306 U.S. 346 (1939). [970] Ibid. 352. [971] Hood _v._ Du Mond, 336 U.S. 525, 535 (1949). [972] Foster-Fountain Packing Co. _v._ Haydel, 278 U.S. 1 (1928). [973] Ibid. 13. [974] Toomer _v._ Witsell, 334 U.S. 385 (1948). Other features of the South Carolina act were found to violate article IV, section 2. _See_ p. 690. [975] Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936). [976] Ibid. 426, citing Silz _v._ Hesterberg, 211 U.S. 31, 39 (1908). [977] 34 Stat. 584 (1906). [978] Chicago, I. & L.R. Co. _v._ United States, 219 U.S. 486 (1911). [979] Southern R. Co. _v._ Reid, 222 U.S. 424 (1912); Southern R. Co. _v._ Burlington Lumber Co., 225 U.S. 99 (1912). [980] Chicago, R.I. & P.R. Co. _v._ Hardwick Farmers Elevator Co., 226 U.S. 426 (1913). [981] St. Louis, I.M. & S.R. Co. _v._ Edwards, 227 U.S. 265 (1913). [982] Yazoo & M.V.R. Co. _v._ Greenwood Grocery Co., 227 U.S. 1 (1913). In this case the severity of the regulation furnished additional reason for its disallowance. [983] 226 U.S. 491 (1913). For the Court's reiteration of the formula governing such cases, _see_ ibid. 505-506. _See also_ Barrett _v._ New York, 232 U.S. 14 (1914); Chicago, R.I. & P.R. Co. _v._ Cramer, 232 U.S. 490 (1914); Atchison, T. & S.F.R. Co. _v._ Harold, 241 U.S. 371 (1916); Missouri P.R. Co. _v._ Porter, 273 U.S. 341 (1927). A year before the enactment of the Carmack Amendment the Court had held that the imposition by a State upon the initial or any connecting carrier of the duty of tracing the freight and informing the shipper in writing when, where, how, and by which carrier the freight was lost, damaged, or destroyed, and of giving the names of the parties and their official position, by whom the truth of the facts set out in the information could be established, was, when applied to interstate commerce, a violation of the commerce clause. Central of Georgia R. Co. _v._ Murphey, 196 U.S. 194, 202 (1905). The Court's opinion definitely invited Congress to deal with the subject, as it does in the Carmack Amendment. [984] 35 Stat. 65 (1908); 36 Stat. 291 (1910). [985] 34 Stat. 1415 (1907). [986] 27 Stat. 531 (1893); 32 Stat. 943 (1903). [987] Mondou _v._ New York, N.H. & H.R. Co. (Second Employers' Liability Cases), 223 U.S. 1 (1912); Southern R. Co. _v._ Railroad Com., 236 U.S. 439 (1915). [988] Erie R. Co. _v._ New York, 233 U.S. 671 (1914). [989] 26 Stat. 414 (1890). [990] Crossman _v._ Lurman, 192 U.S. 189 (1904). [991] 34 Stat. 768 (1906); Savage _v._ Jones, 225 U.S. 501 (1912), citing Missouri, Kansas & Texas Ry. Co. _v._ Haber, 169 U.S. 613 (1898); Reid _v._ Colorado, 187 U.S. 137 (1902); Asbell _v._ Kansas, 209 U.S. 251 (1908); Southern Ry. Co. _v._ Reid, 222 U.S. 424, 442 (1912). [992] McDermott _v._ Wisconsin, 228 U.S. 115 (1913). [993] Ibid. 137. [994] Armour & Co. _v._ North Dakota, 240 U.S. 510 (1916). [995] 37 Stat. 315 (1912); 39 Stat. 1165 (1917). [996] Oregon-Washington R. & Nav. Co. _v._ Washington, 270 U.S. 87 (1926). [997] 44 Stat. 250 (1926). [998] Mintz _v._ Baldwin, 289 U.S. 346 (1933). [999] 32 Stat. 791 (1903); 33 Stat. 1264 (1905). [1000] Townsend _v._ Yeomans, 301 U.S. 441 (1937). [1001] 49 Stat. 731 (1935). [1002] Allen-Bradley Local _v._ Employment Relations Board, 315 U.S. 740 (1942). [1003] 49 Stat. 449 (1935). [1004] Quoting Napier _v._ Atlantic Coast Line R. Co., 272 U.S. 605, 611 (1926). [1005] Parker _v._ Brown, 317 U.S. 341 (1943). [1006] 50 Stat. 246 (1937). [1007] 317 U.S. at 368. [1008] Ibid. 362. [1009] Union Brokerage Co. _v._ Jensen, 322 U.S. 202 (1944). [1010] Ibid. 211. [1011] Panhandle Eastern Pipe Line Co. _v._ Public Serv. Com. of Indiana, 332 U.S. 507 (1947); Rice _v._ Chicago Board of Trade, 331 U.S. 247 (1947). [1012] 52 Stat. 821 (1938). [1013] 49 Stat. 1491 (1936). [1014] 49 Stat. 543 (1935); 54 Stat. 919-920 (1940). [1015] California _v._ Zook, 336 U.S. 725 (1949). [1016] 52 Stat. 821 (1938). [1017] Illinois Gas Co. _v._ Public Service Co., 314 U.S. 498 (1942). [1018] 26 U.S.C.A. § 2320-2327. [1019] Cloverleaf Co. _v._ Patterson, 315 U.S. 148 (1942). Four Justices, speaking by Chief Justice Stone dissented, on the basis of Mintz _v._ Baldwin, 289 U.S. 346 (1933); Kelly _v._ Washington ex rel. Foss Co., 302 U.S. 1 (1937); and Welch Co. _v._ New Hampshire, 306 U.S. 79 (1939). [1020] 39 Stat. 486 (1916); amended by 46 Stat. 1463 (1931). [1021] Rice _v._ Santa Fe Elevator Corp., 331 U.S. 218 (1947). [1022] _See_ note 1 above. [Transcriber's Note: Reference is to Footnote 1016, above.] [1023] Interstate Natural Gas Co. _v._ Federal Power Com., 331 U.S. 682 (1947). [1024] 49 U.S.C.A. 5. [1025] Schwabacher _v._ United States, 334 U.S. 182 (1948). [1026] Seaboard Air Line R. Co. _v._ Daniel, 333 U.S. 118 (1948). [1027] Hill _v._ Florida, 325 U.S. 538 (1945). [1028] 49 Stat. 449 (1935). [1029] 325 U.S. at 542. [1030] Auto Workers _v._ Wisconsin Board, 336 U.S. 245 (1949). [1031] 49 Stat. 449 (1935); 61 Stat. 136 (1947). [1032] Algoma Plywood & Veneer Co. _v._ Wisconsin Bd., 336 U.S. 301 (1949). [1033] Automobile Workers _v._ O'Brien, 339 U.S. 454 (1950); Bus Employees _v._ Wisconsin Board, 340 U.S. 383 (1951). [1034] United States _v._ Kagama, 118 U.S. 375, 384 (1886); _Cf._ United States _v._ Holliday, 3 Wall. 407 (1866). [1035] 16 Stat. 544, 566; R.S. 2079. [1036] _See_ United States _v._ Sandoval, 231 U.S. 28 (1914). [1037] _See_ Perrin _v._ United States, 232 U.S. 478 (1914); Johnson _v._ Gearlds, 234 U.S. 422 (1914); Dick _v._ United States, 208 U.S. 340 (1908). [1038] United States _v._ Nice, 241 U.S. 591 (1916), overruling Re Heff, 197 U.S. 488, 509 (1905). [1039] United States _v._ Sandoval, 231 U.S. 28 (1914). [1040] United States _v._ Holliday, 3 Wall. 407, 419 (1866). [1041] Ex parte Webb, 225 U.S. 663 (1912). [1042] Boyd _v._ Nebraska, 143 U.S. 135, 162 (1892). [1043] 10 How. 393 (1857). [1044] Ibid. 417, 419. [1045] Mackenzie _v._ Hare, 239 U.S. 299, 311 (1915). [1046] 66 Stat. 163; Public Law 414, 82d Cong., 2d Sess. (1952). [1047] Ibid. tit. III, § 301. The first category comprises, it should be noted, those who are citizens by the opening clause of Amendment XIV, which embodies Chief Justice Marshall's holding in Gassies _v._ Ballon, that a citizen of the United States, residing in any State of the Union, is a citizen of that State. 6 Pet. 761, 762 (1832). [1048] 66 Stat. 163; tit. III, §§ 302-307. These categories illustrate collective naturalization. "Instances of collective naturalization by treaty or by statute are numerous." Boyd _v._ Nebraska, 143 U.S. 135, 162 (1892). _See also_ Elk _v._ Wilkins, 112 U.S. 94 (1884). [1049] 57 Stat. 600. [1050] 66 Stat. 163, tit. III, § 311. [1051] Ibid. § 313 (a) (4-6). [1052] Ibid. § 313 (c). [1053] 66 Stat. 163, § 337 (a). In United States _v._ Schwimmer, 279 U.S. 644 (1929); and United States _v._ Macintosh, 283 U.S. 605 (1931) it was held, by a divided Court, that clauses (3) and (4) of the oath, as previously prescribed, required the candidate for naturalization to be ready and willing to bear arms for the United States, but these holdings were overruled in Girouard _v._ United States, 328 U.S. 61 (1946). [1054] 66 Stat. 163, § 340 (a); _see also_ Johannessen _v._ United States, 225 U.S. 227 (1912). [1055] Ibid. § 340 (c). For cancellation proceedings under the Nationality Act of 1910 (54 Stat. 1158, § 338); _see_ Schneiderman _v._ United States, 320 U.S. 118 (1943); Baumgartner _v._ United States 322 U.S. 665 (1944), where district court decisions ordering cancellation were reversed on the ground that the Government had not discharged the burden of proof resting upon it. Knauer _v._ United States, 328 U.S. 654 (1946) represents a less rigid view. [1056] Osborn _v._ Bank of the United States, 9 Wheat. 738, 827 (1824). [1057] 328 U.S. 654 (1946). [1058] Ibid. 658. [1059] Johannessen _v._ United States, 225 U.S. 227 (1912) and Knauer _v._ United States, 328 U.S. 654, 673 (1946). [1060] 66 Stat. 163, tit. III, § 352 (a). [1061] Perkins _v._ Elg, 307 U.S. 325, 329, 334 (1939). Naturalization has a retroactive effect and removes all liability to forfeiture of land held while an alien (Osterman _v._ Baldwin, 6 Wall. 116, 122 (1867)); the subsequent naturalization of an alien who takes land by grant or by location on public land relates back and obviates every consequence of his alien disability (Manuel _v._ Wulff, 152 U.S. 505, 511 (1894); Doe ex dem. Governeur's Heirs _v._ Robertson, 11 Wheat. 332, 350 (1826)). A certificate of naturalization, while conclusive as a judgment of citizenship, cannot be introduced in a distinct proceeding as evidence of residence, age or good character of the person naturalized (Mutual Ben. L. Ins. Co. _v._ Tisdale, 91 U.S. 238 (1876)). [1062] Chirac _v._ Chirac, 2 Wheat. 259, 269 (1817). [1063] Holmgren _v._ United States, 217 U.S. 509 (1910), where it was also held that Congress may provide for the punishment of false swearing in such proceedings in State court. Ibid. 520. [1064] Spragins _v._ Houghton, 3 Ill. 377 (1840); Stewart _v._ Foster, 2 Binney's (Pa.) 110 (1809). [1065] Shanks _v._ Dupont, 3 Pet. 242, 240 (1830). [1066] 15 Stat. 223; 8 U.S.C.A. § 800. [1067] MacKenzie _v._ Hare, 239 U.S. 299, 309, 311-312 (1915). In this case, a now obsolete statute (34 Stat. 1228), known as the Citizenship Act of 1907, which divested the citizenship of a woman marrying an alien, was upheld as constitutional. Under the Act of June 27, 1952, these conditions comprise the following: (1) Obtaining naturalization in a foreign State; (2) Taking an oath of allegiance to a foreign State; (3) Serving in the armed forces of a foreign State without authorization and with consequent acquisition of foreign nationality; (4) Assuming public office under the government of a foreign State, for which only nationals of that State are eligible; (5) Voting in an election or participating in a plebiscite in a foreign State; (6) Formal renunciation of citizenship before an American foreign service officer abroad; (7) Conviction and discharge from the armed services for desertion in time of war; (8) Conviction of treason or an attempt at forceful overthrow of the United States; (9) Formal renunciation of citizenship within the United States in time of war, subject to approval by the Attorney General; (10) Fleeing or remaining outside the United States in time of war or proclaimed emergency in order to evade military training; (11) Residence by a naturalized citizen, subject to certain exceptions, for two to three years in the country of his birth or in which he formerly was a national or for five years in any other foreign State, and (12) Minor children, of naturalized citizens losing citizenship by such foreign residence, also lose their United States citizenship if they acquire the nationality of a foreign State; but not until they attain the age of 25 without having acquired permanent residence in the United States. 66 Stat. 163; Tit. III §§ 349-357. [1068] Chinese Exclusion Case, 130 U.S. 581, 603, 604 (1889); _See also_ Fong Yue Ting _v._ United States, 149 U.S. 698, 705 (1893); Japanese Immigrant Case, 189 U.S. 86 (1903); Turner _v._ Williams, 194 U.S. 279 (1904); Bugajewitz _v._ Adams, 228 U.S. 585 (1913); Hines _v._ Davidowitz, 312 U.S. 52 (1941). [1069] 66 Stat. 163; Tit. II, § 212. [1070] Ibid. § 212 (a) (28) (F). [1071] 54 Stat. 670. [1072] Hines _v._ Davidowitz, 312 U.S. 52, 69-70. [1073] 66 Stat. 163; Tit. II, §§ 261-266. [1074] 338 U.S. 537 (1950). [1075] 59 Stat. 659. [1076] 338 U.S. at 543. [1077] Carlson _v._ Landon, 342 U.S. 524 (1952). [1078] 54 Stat. 670. [1079] Harisiades _v._ Shaughnessy, 342 U.S. 580, 587 (1952). [1080] 8 U.S.C, § 156 C was the provision in question. [1081] United States _v._ Spector, 343 U.S. 169 (1952). [1082] Keller _v._ United States, 213 U.S. 138 (1909). [1083] Ibid. 149-150. For the requirements of due process of law in the deportation of alien, _see_ p. 852 (Amendment V). [1084] Adams _v._ Storey, 1 Fed. Cas. No. 66 (1817). [1085] 2 Stat. 19 (1800). [1086] Story's Commentaries, II, 1113 (Cooley's ed. 1873). [1087] 186 U.S. 181 (1902). [1088] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R. Co., 294 U.S. 648, 670 (1935). [1089] United States _v._ Bekins, 304 U.S. 27 (1938), distinguishing Ashton _v._ Cameron County Water Improv. Dist., 298 U.S. 513 (1936). [1090] In re Reiman, Fed. Cas. No. 11,673 (1874), cited with approval in Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R. Co., 294 U.S. 648, 672 (1935). [1091] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R. Co., 294 U.S. 648 (1935). [1092] Wright _v._ Mountain Trust Bank, 300 U.S. 440 (1937); Adair _v._ Bank of America Assn., 303 U.S. 350 (1938). [1093] Wright _v._ Union Central Insurance Co., 304 U.S. 502 (1938). [1094] 294 U.S. 648 (1935). [1095] Ibid. 671. [1096] Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555, 589, 602 (1935). [1097] Ashton _v._ Cameron County Water Improvement District, 298 U.S. 513 (1936). _But see_ United States _v._ Bekins, 304 U.S. 27 (1938). [1098] Chicago Title & Trust Co. _v._ 4136 Wilcox Bldg. Corp., 302 U.S. 120 (1937). [1099] Re Klein, 1 How. 277 (1843); Hanover Nat. Bank _v._ Moyses, 186 U.S. 181 (1902). [1100] United States _v._ Bekins, 304 U.S. 27 (1938). [1101] Stellwagen _v._ Clum, 245 U.S. 605 (1918); Hanover Nat. Bank _v._ Moyses, 186 U.S. 181, 190 (1902). [1102] Hanover Nat. Bank _v._ Moyses, 186 U.S. 181, 184 (1902). [1103] Sturges _v._ Crowninshield, 4 Wheat. 122, 199 (1819); Ogden _v._ Saunders, 12 Wheat. 212, 368 (1827). [1104] Tua _v._ Carriere, 117 U.S. 201 (1886); Butler _v._ Goreley, 146 U.S. 303, 314 (1892). [1105] Sturges _v._ Crowninshield, 4 Wheat. 122 (1819). [1106] Ogden _v._ Saunders, 12 Wheat. 212, 358 (1827); Denny _v._ Bennett, 128 U.S. 489, 498 (1888); Brown _v._ Smart, 145 U.S. 454 (1892). [1107] Re Watts, 190 U.S. 1, 27 (1903); International Shoe Co. _v._ Pinkus, 278 U.S. 261, 264 (1929). [1108] International Shoe Co. _v._ Pinkus, 278 U.S. 261, 265 (1929). [1109] Kalb _v._ Feuerstein, 308 U.S. 433 (1940). [1110] Stellwagen _v._ Clum, 245 U.S. 605, 615 (1918). [1111] Reitz _v._ Mealey, 314 U.S. 33 (1941). [1112] New York _v._ Irving Trust Co., 288 U.S. 329 (1933). [1113] McCulloch _v._ Maryland, 4 Wheat. 316 (1819). [1114] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869). [1115] Ibid. 548. [1116] Merchants Nat. Bank _v._ United States, 101 U.S. 1 (1880). [1117] Nortz _v._ United States, 294 U.S. 317 (1935). [1118] Legal Tender Cases, 12 Wall. 457, 549 (1871); Juilliard _v._ Greenman, 110 U.S. 421, 449 (1884). [1119] Legal Tender Cases, 12 Wall. 457 (1871). [1120] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935). [1121] Ling Su Fan _v._ United States, 218 U.S. 302 (1910). [1122] United States _v._ Marigold, 9 How. 560, 568 (1850). [1123] Fox _v._ Ohio, 5 How. 410 (1847). [1124] United States _v._ Marigold, 9 How. 560, 568 (1850). [1125] Ibid. [1126] Baender _v._ Barnett, 255 U.S. 224 (1921). [1127] Knox _v._ Lee (Legal Tender Cases), 12 Wall. 457, 536 (1871). [1128] McCulloch _v._ Maryland, 4 Wheat. 316, 407 (1819); Osborn _v._ Bank of United States, 9 Wheat. 738, 861 (1824); Farmers' & Mechanics' Nat. Bank _v._ Dearing, 91 U.S.C. 29, 33 (1875); Smith _v._ Kansas City Title & Trust Co., 255 U.S. 180, 208 (1921). [1129] Legal Tender Cases, 12 Wall. 457, 540-547 (1871). [1130] Perry _v._ United States, 294 U.S. 330, 353 (1935). [1131] Ibid. 361. [1132] United States _v._ Railroad Bridge Co., Fed. Cas. No. 16,114 (1855). [1133] Searight _v._ Stokes, 3 How. 151, 166 (1845). [1134] 91 U.S. 367 (1876). [1135] Ex parte Jackson, 96 U.S. 727, 732 (1878). [1136] Searight _v._ Stokes, 3 How. 151, 169 (1845). [1137] Re Debs, 158 U.S. 564, 599 (1895). [1138] 2 Cong. Globe 4, 10 (1835). [1139] Ibid. 298. On this point his reasoning would appear to be vindicated by such decisions, as Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465 (1888) and Leisy _v._ Hardin, 135 U.S. 100 (1890) denying the right of the States to prevent the importation of alcoholic beverages from other States. [1140] 96 U.S. 727 (1878). [1141] Ibid. 732. [1142] Public Clearing House _v._ Coyne, 194 U.S. 497 (1904), followed in Donaldson _v._ Read Magazine, 333 U.S. 178 (1948). [1143] 194 U.S. at 506. [1144] Lewis Publishing Co. _v._ Morgan, 229 U.S. 288, 316 (1913). [1145] 255 U.S. 407 (1921). [1146] Hannegan _v._ Esquire, Inc., 327 U.S. 146, 155 (1946). [1147] 49 Stat. 803, 812, 813 (1935), 15 U.S.C. 79d, 79e (1946). [1148] Electric Bond & Share Co. _v._ Securities and Exchange Comm'n., 303 U.S. 419 (1938). [1149] Ibid. 442. [1150] Pensacola Teleg. Co. _v._ Western U. Teleg. Co., 90 U.S. 1 (1878). [1151] Illinois C.R. Co. _v._ Illinois ex rel. Butler, 163 U.S. 142 (1896). [1152] Gladson _v._ Minnesota, 166 U.S. 427 (1897). [1153] Price _v._ Pennsylvania R. Co., 113 U.S. 218 (1885); Martin _v._ Pittsburgh & L.E.R. Co., 203 U.S. 284 (1906). [1154] Railway Mail Assn. _v._ Corsi, 326 U.S. 88 (1945). [1155] United States _v._ Kirby, 7 Wall. 482 (1869). [1156] Johnson _v._ Maryland, 254 U.S. 51 (1920). [1157] Pennock _v._ Dialogue, 2 Pet. 1, 17, 18 (1829). [1158] Wheaton _v._ Peters, 8 Pet. 591, 656, 658 (1834). [1159] Kendall _v._ Winsor, 21 How. 322, 328 (1859); Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment Corp., 340 U.S. 147 (1950). [1160] Evans _v._ Jordan, 9 Cr. 199 (1815); Bloomer _v._ McQuewan, 14 How. 539, 548 (1852); Bloomer _v._ Millinger, 1 Wall. 340, 350 (1864); Eunson _v._ Dodge, 18 Wall. 414, 416 (1873). [1161] Brown _v._ Duchesne, 19 How. 183, 195 (1857). [1162] Seymour _v._ Osborne, 11 Wall. 516, 549 (1871). _Cf._ Union Paper Collar Co. _v._ Van Dusen, 23 Wall. 530, 563 (1875); Reckendorfer _v._ Faber, 92 U.S. 347, 356 (1876). [1163] Smith _v._ Nichols, 21 Wall. 112, 118 (1875). [1164] Rubber-Tip Pencil Co. _v._ Howard, 20 Wall. 498, 507 (1874); Clark Thread Co. _v._ Willimantic Linen Co., 140 U.S. 481, 489 (1891). [1165] Funk Bros. Seed Co. _v._ Kalo Co., 333 U.S. 127, 130 (1948). _Cf._ Dow Chemical Co. _v._ Halliburton Co., 324 U.S. 320 (1945); Cuno Corp. _v._ Automatic Devices Corp., 314 U.S. 84, 89 (1941). [1166] Sinclair & Carroll Co. _v._ Interchemical Corp., 325 U.S. 327 (1945); Marconi Wireless Teleg. Co. _v._ United States, 320 U.S. 1 (1943). [1167] Keystone Mfg. Co. _v._ Adams, 151 U.S. 139 (1894); Diamond Rubber Co. _v._ Consolidated Tire Co., 220 U.S. 428 (1911). [1168] Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment Corp., 340 U.S. 147 (1950). An interesting concurring opinion was filed by Justice Douglas for himself and Justice Black: "It is not enough," says Justice Douglas, "that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end--the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance." Ibid. 154-155. He then quotes the following from an opinion of Justice Bradley's given 70 years ago: "It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith. (Atlantic Works _v._ Brady, 107 U.S. 192, 200 (1882))." Ibid. 155. The opinion concludes: "The attempts through the years to get a broader, looser conception of patents than the Constitution contemplates have been persistent. The Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a host of gadgets under the armour of patents--gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. A few that have reached this Court show the pressure to extend monopoly to the simplest of devices: "Hotchkiss _v._ Greenwood, 11 How. 248 (1850): Doorknob made of clay rather than metal or wood, where different shaped doorknobs had previously been made of clay. "Rubber-Tip Pencil Co. _v._ Howard, 20 Wall. 498 (1874): Rubber caps put on wood pencils to serve as erasers. "Union Paper Collar Co. _v._ Van Dusen, 23 Wall. 530 (1875): Making collars of parchment paper where linen paper and linen had previously been used. "Brown _v._ Piper, 91 U.S. 37 (1875): A method for preserving fish by freezing them in a container operating in the same manner as an ice cream freezer. "Reckendorfer _v._ Faber, 92 U.S. 347 (1876): Inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser. "Dalton _v._ Jennings, 93 U.S. 271 (1876): Fine thread placed across open squares in a regular hairnet to keep hair in place more effectively. "Double-Pointed Tack Co. _v._ Two Rivers Mfg. Co., 109 U.S. 117 (1883): Putting a metal washer on a wire staple. "Miller _v._ Foree, 116 U.S. 22 (1885): A stamp for impressing initials in the side of a plug of tobacco. "Preston _v._ Manard, 116 U.S. 661 (1886): A hose reel of large diameter so that water may flow through hose while it is wound on the reel. "Hendy _v._ Miners' Iron Works, 127 U.S. 370 (1888): Putting rollers on a machine to make it moveable. "St. Germain _v._ Brunswick, 135 U.S. 227 (1890): Revolving cue rack. "Shenfield _v._ Nashawannuck Mfg. Co., 137 U.S. 56 (1890): Using flat cord instead of round cord for the loop at the end of suspenders. "Florsheim _v._ Schilling, 137 U.S. 64 (1890): Putting elastic gussets in corsets. "Cluett _v._ Claflin, 140 U.S. 180 (1891): A shirt bosom or dickie sewn onto the front of a shirt. "Adams _v._ Bellaire Stamping Co., 141 U.S. 539 (1891): A lantern lid fastened to the lantern by a hinge on one side and a catch on the other. "Patent Clothing Co. _v._ Glover, 141 U.S. 560 (1891): Bridging a strip of cloth across the fly of pantaloons to reinforce them against tearing. "Pope Mfg. Co. _v._ Gormully Mfg. Co., 144 U.S. 238 (1892): Placing rubber hand grips on bicycle handlebars. "Knapp _v._ Morss, 150 U.S. 221 (1893): Applying the principle of the umbrella to a skirt form. "Morgan Envelope Co. _v._ Albany Perforated Wrapping Paper Co., 152 U.S. 425 (1894): An oval rather than cylindrical toilet paper roll, to facilitate tearing off strips. "Dunham _v._ Dennison Mfg. Co., 154 U.S. 103 (1894): An envelope flap which could be fastened to the envelope in such a fashion that the envelope could be opened without tearing. "The patent involved in the present case belongs to this list of incredible patents which the Patent Office has spawned. The fact that a patent as flimsy and as spurious as this one has to be brought all the way to this Court to be declared invalid dramatically illustrates how far our patent system frequently departs from the constitutional standards which are supposed to govern." Ibid. 156-158. [1169] "Inventive genius"--Justice Hunt in Reckendorfer _v._ Faber, 92 U.S. 347, 357 (1875); "Genius or invention"--Chief Justice Fuller in Smith _v._ Whitman Saddle Co., 148 U.S. 674, 681 (1893); "Intuitive genius"--Justice Brown in Potts _v._ Creager, 155 U.S. 597, 607 (1895); "Inventive genius"--Justice Stone in Concrete Appliances Co. _v._ Gomery, 269 U.S. 177, 185 (1925); "Inventive genius"--Justice Roberts in Mantle Lamp Co. _v._ Aluminum Co., 301 U.S. 544, 546 (1937); Justice Douglas in Cuno Corp. _v._ Automatic Devices Corp., 314 U.S. 84, 91 (1941); "the flash of creative genius, not merely the skill of the calling." _See also_ Note 2 above. [Transcriber's Note: Reference is to Footnote 1163, above.] [1170] _See_ Note 7 above. [Transcriber's Note: Reference is to Footnote 1168, above.] [1171] Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment Corp., 340 U.S. 147 (1950); Mahn _v._ Harwood, 112 U.S. 354, 358 (1884). [1172] Evans _v._ Eaton, 3 Wheat. 454, 512 (1818). [1173] United States _v._ Duell, 172 U.S. 576, 586-589 (1899). _See also_ Butterworth _v._ Hoe, 112 U.S. 50 (1884). [1174] Wheaton _v._ Peters, 8 Pet. 591, 660 (1834); Holmes _v._ Hurst, 174 U.S. 82 (1899). _Cf._ E. Burke Inlow, The Patent Clause (1950) Chaps. III and IV, for evidence of a judicial recognition of an inventor's inchoate right to have his invention patented. [1175] Wheaton _v._ Peters, 8 Pet. 591, 662 (1834); Evans _v._ Jordan, 9 Cr. 199 (1815). [1176] Kalem Co. _v._ Harper Bros. 222 U.S. 55 (1911). [1177] Baker _v._ Selden, 101 U.S. 99, 105 (1880). [1178] Stevens _v._ Gladding, 17 How. 447 (1855). [1179] Ager _v._ Murray, 105 U.S. 126 (1882). [1180] James _v._ Campbell, 104 U.S. 356, 358 (1882). _See also_ United States _v._ Burns, 12 Wall. 246, 252 (1871); Cammeyer _v._ Newton, 94 U.S. 225, 234 (1877); Hollister _v._ Benedict Manufacturing Co., 113 U.S. 59, 67 (1885); United States _v._ Palmer, 128 U.S. 262, 271 (1888); Belknap _v._ Schild, 161 U.S. 10, 16 (1896). [1181] McClurg _v._ Kingsland, 1 How. 202, 206 (1843). [1182] Bloomer _v._ McQuewan, 14 How. 539, 553 (1852). [1183] _See_ Motion Picture Co. _v._ Universal Film Co., 243 U.S. 502 (1917); Morton Salt Co. _v._ Suppiger Co., 314 U.S. 488 (1942); United States _v._ Masonite Corp., 316 U.S. 265 (1942); and United States _v._ New Wrinkle, Inc., 342 U.S. 371 (1952), where the Justices divide 6 to 3 as to the significance for the case of certain leading precedents. _See also_ Inlow, The Patent Clause, Chap. V. [1184] Patterson _v._ Kentucky, 97 U.S. 501 (1879). [1185] Allen _v._ Riley, 203 U.S. 347 (1906): Woods & Sons _v._ Carl, 203 U.S. 358 (1906); Ozan Lumber Co. _v._ Union County Bank, 207 U.S. 251 (1907). [1186] Fox Film Corp. _v._ Doyal, 280 U.S. 123 (1932)--overruling Long _v._ Rockwood, 277 U.S. 142 (1928). [1187] 100 U.S. 82 (1879). [1188] Ibid. 94. [1189] Burrow-Giles Lithographic Co. _v._ Sarony, 111 U.S. 53 (1884). [1190] Bleistein _v._ Donaldson Lithographing Co., 188 U.S. 239, 252 (1903). [1191] Kent, Commentaries, 1-2, (12th ed. 1873). [1192] XIX Journals of the Continental Congress 315, 361 (1912). XX Id. 762, XXI id. 1136-1137, 1158. [1193] Article IX. [1194] Madison, Journal of the Constitutional Convention, II, 82 (Hunt's ed. 1908). [1195] Ibid. 185-186, 372. [1196] United States _v._ Smith, 5 Wheat. 153, 160, 162 (1820). _See also_ The Marianna Flora, 11 Wheat. 1, 40-41 (1826); United States _v._ Brig Malek Abhel, 2 How. 210, 232 (1844). [1197] 317 U.S. 1, 27 (1942). [1198] Ibid. 28. [1199] United States _v._ Arjona, 120 U.S. 479, 487, 488 (1887). [1200] United States _v._ Flores, 3 F. Supp. 134 (1932). [1201] 289 U.S. 137, 149-150 (1933). [1202] United States _v._ Furlong, 5 Wheat. 184, 200 (1920). [1203] The Federalist No. 23. [1204] Penhallow _v._ Doane, 3 Dall. 54 (1795). [1205] 4 Wheat. 316 (1819). [1206] Ibid. 407. Emphasis supplied. [1207] Ex parte Milligan, 4 Wall. 2, 139 (1866) (dissenting opinion); _see also_ Miller _v._ United States, 11 Wall. 268, 305 (1871); and United States _v._ Macintosh, 283 U.S. 605, 622 (1931). [1208] 58 Cong. Globe, 37th Cong., 1st sess., App. 1 (1861). [1209] Hamilton _v._ Dillin, 21 Wall. 73, 86 (1875). [1210] Northern P.R. Co. _v._ North Dakota, 250 U.S. 135, 149 (1919). [1211] Home Bldg. & Loan Assoc. _v._ Blaisdell, 290 U.S. 398 (1934). [1212] Northern P.R. Co. _v._ North Dakota, 250 U.S. 135, 149 (1919). [1213] 299 U.S. 304 (1936). [1214] Ibid. 316, 318. [1215] 334 U.S. 742 (1948). [1216] Ibid. 757-758. [1217] Ibid. 755. [1218] II Madison Journal of the Constitutional Convention 82 (Hunt's ed. 1908). [1219] Ibid. 188. [1220] 11 Annals of Congress 11 (1801). [1221] Works of Alexander Hamilton, VII, 746 (Hamilton's ed. 1851). _Cf._ Bas _v._ Tingy, 4 Dall. 37 (1800). [1222] 2 Stat. 129, 130 (1802). Emphasis supplied. [1223] The Prize Cases, 2 Bl. 635, 668 (1863). [1224] Ibid. 683, 688. [1225] 12 Wall. 700 (1872). [1226] Ibid. 702. [1227] I Blackstone, Commentaries 263, (Wendell's ed. 1857). [1228] II Story, Commentaries, § 1187 (4th ed. 1873). [1229] 25 Op. Atty. Gen. 105, 108 (1904). [1230] 40 Op. Atty. Gen. 555 (1948). [1231] 61 Stat. 405 (1947). [1232] H.J. Res. 298, 80th Cong., 2d sess. (1948). [1233] Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox _v._ Wood, 247 U.S. 3 (1918). [1234] 245 U.S. at 385. [1235] Ibid. 386-388. The measure was upheld by a State court, Kneedler _v._ Lane, 45 Pa. 238 (1863). [1236] Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918) [1237] Butler _v._ Perry, 240 U.S. 328, 333 (1916). [1238] 245 U.S. 366 (1918). [1239] Ibid. 390. [1240] United States _v._ Williams, 302 U.S. 46 (1937). _See also_ In re Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890). [1241] Wissner _v._ Wissner, 338 U.S. 655, 660 (1950). [1242] McKinley _v._ United States, 249 U.S. 397 (1919). [1243] Dynes _v._ Hoover, 20 How. 65, 79 (1858). [1244] Ex parte Milligan, 4 Wall. 2, 123, 138-139 (1866). Ex parte Quirin, 317 U.S. 1, 40 (1942). [1245] Wade _v._ Hunter, 336 U.S. 684, 687 (1949). [1246] Dynes _v._ Hoover, 20 How. 65, 82 (1858). [1247] Swaim _v._ United States, 165 U.S. 553 (1897); Carter _v._ Roberts, 177 U.S. 496 (1900); Hiatt _v._ Brown, 339 U.S. 103 (1950). [1248] Mullan _v._ United States, 212 U.S. 516 (1909); Smith _v._ Whitney, 116 U.S. 167, 177 (1886); Hiatt _v._ Brown, 339 U.S. 103 (1950). [1249] Clark, Emergency Legislation Passed Prior to December 1917, 211 (1918). [1250] Ibid. 214 [1251] Ibid. 250, 332, 380, 438, 497. [1252] Ibid. 420, 466, 535, 595, 636, 823. Many of these were soon suspended or repealed. Ibid. 458, 553, 601, 733. [1253] Ibid. 482, 543, 963, 969. [1254] Ibid. 916. [1255] Ibid. 280. [1256] Hepburn _v._ Griswold, 8 Wall. 603, 617 (1870). [1257] Ibid. 626. [1258] Knox _v._ Lee (Legal Tender Cases), 12 Wall. 457, 540 (1871). [1259] 40 Stat. 276 (1917). [1260] Ibid. 272. [1261] Ibid. 411. [1262] Ibid. 451 (1918). [1263] Ibid. 904. [1264] 55 Stat. 236 (1941). [1265] 56 Stat. 176 (1942). [1266] Ibid. 23. [1267] 57 Stat. 163 (1943). [1268] Lichter _v._ United States, 334 U.S. 742, 754-756, 765, 766 (1948). _See also_ United States _v._ Bethlehem Steel Corp., 315 U.S. 289, 305 (1942); Clallam County _v._ United States, 263 U.S. 341 (1923); Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549 (1922). [1269] Lichter _v._ United States, 334 U.S. 742, 779 (1948). [1270] 245 U.S. 366, 389 (1918). [1271] Yakus _v._ United States, 321 U.S. 414, 424 (1944). [1272] 21 Wall. 73 (1875). [1273] Ibid. 96-97. _Cf._ United States _v._ Chemical Foundation, 272 U.S. 1 (1926). [1274] 320 U.S. 81 (1943). [1275] Ibid. 91-92, 104. [1276] Ibid. 104. [1277] 334 U.S. 742 (1948). [1278] Ibid. 778-779. [1279] Ibid. 782-783. [1280] Story Commentaries on the Constitution, II, § 1185 (4th ed., 1873). [1281] 297 U.S. 288 (1936). [1282] 39 Stat. 166 (1916). [1283] 297 U.S. 288, 327-328 (1936). [1284] 60 Stat. 755 (1946). [1285] Stewart _v._ Kahn, 11 Wall. 493, 507 (1871). _See also_ Mayfield _v._ Richards, 115 U.S. 137 (1885). [1286] 251 U.S. 146, 163 (1919). _See also_ Ruppert _v._ Caffey, 251 U.S. 264 (1920). [1287] Block _v._ Hirsh, 256 U.S. 135 (1921). [1288] Chastleton Corp. _v._ Sinclair, 264 U.S. 543 (1924). [1289] 333 U.S. 138 (1948). _See also_ Fleming _v._ Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947). [1290] 333 U.S. 138, 143-144 (1948). [1291] Ludecke _v._ Watkins, 335 U.S. 160, 170 (1948). [1292] 100 U.S. 158 (1880). [1293] Ibid. 170. [1294] 4 Wall. 2 (1866). [1295] Ibid. 127. [1296] Ibid. 132, 138. [1297] 327 U.S. 304 (1946). [1298] 8 Cr. 110 (1814). _See also_ Conrad _v._ Waples, 96 U.S. 279, 284 (1878). [1299] Miller _v._ United States, 11 Wall. 268 (1871). [1300] Stoehr _v._ Wallace, 255 U.S. 239 (1921); Central Union Trust Co. _v._ Garvan, 254 U.S. 554 (1921); United States _v._ Chemical Foundation, 272 U.S. 1 (1926); Silesian-American Corp. _v._ Clark, 332 U.S. 469 (1947); Cities Service Co. _v._ McGrath, 342 U.S. 330 (1952). [1301] The "Siren," 13 Wall. 389 (1871). [1302] The "Hampton," 5 Wall. 372, 376 (1867). [1303] The "Paquete Habana," 175 U.S. 677, 700, 711 (1900). [1304] Block _v._ Hirsh, 256 U.S. 135, 156, 157 (1921). [1305] Bowles _v._ Willingham, 321 U.S. 503, 519 (1944). [1306] Ibid. 521. [1307] 255 U.S. 81 (1921). [1308] Ibid. 89. [1309] Schenck _v._ United States, 249 U.S. 47 (1919); Debs _v._ United States, 249 U.S. 211 (1919); Sugarman _v._ United States, 249 U.S. 182 (1919); Frohwerk _v._ United States, 249 U.S. 204 (1919); Abrams _v._ United States, 250 U.S. 616 (1919). [1310] 40 Stat. 217 (1917); amended by 40 Stat. 553 (1918). [1311] 249 U.S. 47 (1919). [1312] Ibid. 52. [1313] Gilbert _v._ Minnesota, 254 U.S. 325 (1920). [1314] Hirabayashi _v._ United States, 320 U.S. 81 (1943). [1315] Korematsu _v._ United States, 323 U.S. 214 (1944). [1316] Ex parte Endo, 323 U.S. 283 (1944). [1317] 1 Stat. 577 (1798). [1318] Writings of James Madison, VI, 360-361 (Hunt's ed., 1906). [1319] 40 Stat. 531 (1918). [1320] 335 U.S. 160 (1948). [1321] Mitchell _v._ Harmony, 13 How. 115, 134 (1852). [1322] 13 Wall. 623, 627 (1871). [1323] 120 U.S. 227 (1887). [1324] Ibid. 239. [1325] H.R. Rep. No. 262, 43d Cong., 1st sess., 39-40 (1874). [1326] United States _v._ Commodities Trading Corp., 339 U.S. 121 (1950); United States _v._ Toronto Nav. Co., 338 U.S. 396 (1949); Kimball Laundry Co. _v._ United States, 338 U.S. 1 (1949); United States _v._ Cors, 337 U.S. 325 (1949); United States _v._ John J. Felin & Co., 334 U.S. 624 (1948); United States _v._ Petty Motor Co., 327 U.S. 372 (1946); United States _v._ General Motors Corp., 323 U.S. 373 (1945). [1327] Moore _v._ Houston, 3 S. & R. (Pa.) 169 (1817), affirmed in Houston _v._ Moore, 5 Wheat. 1 (1820). [1328] Texas _v._ White, 7 Wall. 700 (1869); Tyler _v._ Defrees, 11 Wall. 331 (1871). [1329] 1 Stat. 424 (1795). [1330] Martin _v._ Mott, 12 Wheat. 19, 32 (1827). [1331] Houston _v._ Moore, 5 Wheat. 1 (1820); Martin _v._ Mott, 12 Wheat. 19 (1827). [1332] Houston _v._ Moore, 5 Wheat. 1, 16 (1820). [1333] 39 Stat. 166, 197 (1916).--By the act of June 28, 1947 (61 Stat. 191, 192) the age of enlistment in the National Guard was lowered to 17 years. [1334] United States _v._ Hammond, 1 Cr. C.C. 15 (1801). [1335] 2 Stat. 103 (1801). [1336] 2 Stat. 195 (1802). [1337] 20 Stat. 102 (1878). [1338] Metropolitan R. Co. _v._ District of Columbia, 132 U.S. 1, 9 (1889). [1339] District of Columbia _v._ Bailey, 171 U.S. 161 (1898). [1340] Shoemaker _v._ United States, 147 U.S. 282, 299 (1893). [1341] Morris _v._ United States, 174 U.S. 196 (1899). [1342] United States ex rel. Greathouse _v._ Dern, 289 U.S. 352, 354 (1933); Smoot Sand & Gravel Corp. _v._ Washington Airport, 283 U.S. 348 (1931); Maryland _v._ West Virginia, 217 U.S. 577 (1910); Marine R. & Coal Co. _v._ United States, 257 U.S. 47 (1921); Morris _v._ United States, 174 U.S. 196 (1899). [1343] Phillips _v._ Payne, 92 U.S. 130 (1876). [1344] 1 Stat. 139 (1790). [1345] United States _v._ Simms, 1 Cr. 252, 256 (1803). [1346] 2 Stat. 103, 104 (1801). _See_ Tayloe _v._ Thomson, 5 Pet. 358, 368 (1831); Ex parte Watkins, 7 Pet. 568 (1833); Stelle _v._ Carroll, 12 Pet. 201, 205 (1838); Van Ness _v._ Bank of United States, 13 Pet. 17 (1839); United States _v._ Eliason, 16 Pet. 291, 301 (1842). [1347] Reily _v._ Lamar, 2 Cr. 344, 356 (1805). [1348] Korn _v._ Mutual Assur. Soc., 6 Cr. 192, 199 (1810). [1349] Mutual Assur. Soc. _v._ Watts, 1 Wheat. 279 (1816). [1350] Hepburn _v._ Ellzey, 2 Cr. 445, 452 (1805); _see also_ Serè _v._ Pitot, 6 Cr. 332, 336 (1810); New Orleans _v._ Winter, 1 Wheat. 91, 94 (1816). The District has been held to be a "State" within the terms of a treaty regulating the inheritance of property within the "States of the Union." De Geofroy _v._ Riggs, 133 U.S. 258 (1890). [1351] Barney _v._ Baltimore, 6 Wall. 280 (1868); Hooe _v._ Jamieson, 166 U.S. 395 (1897); Hooe _v._ Werner, 166 U.S. 399 (1897). [1352] National Mut. Ins. Co. _v._ Tidewater Transfer Co., Inc., 337 U.S. 582 (1949). [1353] Ibid. 588-600 (opinion of Justice Jackson, with whom Justices Black and Burton concurred). [1354] Ibid. 604 (opinion of Justice Rutledge, with whom Justice Murphy concurred). [1355] Callan _v._ Wilson, 127 U.S. 540 (1888); Capital Traction Co. _v._ Hof, 174 U.S. 1 (1899). [1356] United States _v._ Moreland, 258 U.S. 433 (1922). [1357] Wight _v._ Davidson, 181 U.S. 371, 384 (1901); _Cf._ Adkins _v._ Children's Hospital, 261 U.S. 525 (1923) overruled by West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937). [1358] Kendall _v._ United States ex rel. Stokes, 12 Pet. 524, 619 (1838); Shoemaker _v._ United States, 147 U.S. 282, 300 (1893); Atlantic Cleaners & Dyers _v._ United States, 286 U.S. 427, 435 (1932); O'Donoghue _v._ United States 289 U.S. 516, 518 (1933). [1359] 6 Wheat. 264 (1821). [1360] Ibid. 428. [1361] Loughborough _v._ Blake, 5 Wheat. 317 (1820). [1362] Gibbons _v._ District of Columbia, 116 U.S. 404, 408 (1886); Welch _v._ Cook, 97 U.S. 541 (1879). [1363] Loughborough _v._ Blake, 5 Wheat. 317, 320 (1820); Heald _v._ District of Columbia, 259 U.S. 114 (1922). [1364] Thompson _v._ Roe ex dem. Carroll, 22 How. 422, 435 (1860); Stoutenburgh _v._ Hennick, 129 U.S. 141, 147 (1889). [1365] Willard _v._ Presbury, 14 Wall. 676, 680 (1870); Briscoe _v._ Rudolph, 221 U.S. 547 (1911). [1366] Washington Market Co. _v._ District of Columbia, 172 U.S. 361, 367 (1899). [1367] Mattingly _v._ District of Columbia, 97 U.S. 687, 690 (1878). [1368] 129 U.S. 141, 148 (1889). [1369] Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923). [1370] O'Donoghue _v._ United States, 289 U.S. 516 (1933). [1371] Embry _v._ Palmer, 107 U.S. 3 (1883). [1372] James _v._ Dravo Contracting Co., 302 U.S. 134, 143 (1937). [1373] Battle _v._ United States, 209 U.S. 36 (1908). [1374] Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929). [1375] James _v._ Dravo Contracting Co, 302 U.S. 134, 143 (1937). [1376] Collins _v._ Yosemite Park Co., 304 U.S. 518, 530 (1938). [1377] Ibid. 528. [1378] Battle _v._ United States, 209 U.S. 36 (1908); Johnson _v._ Yellow Cab Co., 321 U.S. 383 (1944); Bowen _v._ Johnston, 306 U.S. 19 (1939). [1379] Surplus Trading Co. _v._ Cook, 281 U.S. 647 (1930). [1380] Western Union Teleg. Co. _v._ Chiles, 214 U.S. 274 (1909); Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929); Pacific Coast Dairy _v._ Dept. of Agri., 318 U.S. 285 (1943). [1381] Chicago, R.I. & P.R. Co. _v._ McGlinn, 114 U.S. 542, 545 (1885); James Stewart & Co. _v._ Sadrakula, 309 U.S. 94 (1940). [1382] Palmer _v._ Barrett, 162 U.S. 399 (1896). [1383] United States _v._ Unzeuta, 281 U.S. 138 (1930). [1384] Benson _v._ United States, 146 U.S. 325, 331 (1892). [1385] Palmer _v._ Barrett, 162 U.S. 399 (1896). [1386] S.R.A., Inc. _v._ Minnesota, 327 U.S. 558, 564 (1946). [1387] Ibid. 570, 571. [1388] Fort Leavenworth R. Co. _v._ Lowe, 114 U.S. 525, 532 (1885); United States _v._ Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading Co. _v._ Cook, 281 U.S. 647, 652 (1930). [1389] United States _v._ Cornell, 25 Fed. Cas. No. 14,867 (1819). [1390] James _v._ Dravo Contracting Co., 302 U.S. 134, 145 (1937). [1391] Silas Mason Co. _v._ Tax Commission of Washington, 302 U.S. 186 (1937). _See also_ Atkinson _v._ State Tax Commission, 303 U.S. 20 (1938). [1392] 4 Wheat. 316 (1819). [1393] Ibid. 420. This decision had been clearly foreshadowed fourteen years earlier by Marshall's opinion in United States _v._ Fisher, 2 Cr. 358, 396 (1805). Upholding an act which gave priority to claims of the United States against the estate of a bankrupt he wrote: "The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances, by bills or otherwise, and to take those precautions which will render the transaction safe." [1394] _See_ pp. 74-82, _supra_. [1395] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). _See also_ Missouri _v._ Holland, 252 U.S. 416 (1920). [1396] _See_ p. 426, _supra_. [1397] Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. 272, 281 (1856). [1398] Kohl _v._ United States, 91 U.S. 367, 373 (1876); United Slates _v._ Fox, 94 U.S. 315, 320 (1877). [1399] _See_ pp. 110-117, 266-267. [1400] United States _v._ Fox, 95 U.S. 670, 672 (1878); United States _v._ Hall, 98 U.S. 343, 357 (1879); United States _v._ Worrall, 2 Dall. 384, 394 (1790); McCulloch _v._ Maryland, 4 Wheat. 316 (1819). That this power has been freely exercised is attested by the 180 pages of the United States Code (1950 ed.) devoted to Title 18, entitled "Criminal Code and Criminal Procedure." In addition numerous regulatory measures prescribe criminal penalties for infractions thereof. [1401] Ex parte Carll, 106 U.S. 521 (1883). [1402] United States _v._ Marigold, 9 How. 560, 567 (1850). [1403] Logan _v._ United States, 144 U.S. 263 (1892). [1404] United States _v._ Barnow, 239 U.S. 74 (1915). [1405] Ex parte Yarbrough, 110 U.S. 651 (1884); United States _v._ Waddell, 112 U.S. 76 (1884); In re Quarles, 158 U.S. 532, 537 (1895); Motes _v._ United States, 178 U.S. 458 (1900); United States _v._ Mosley, 238 U.S. 383 (1915). _See also_ Rakes _v._ United States, 212 U.S. 55 (1909). [1406] Ex parte Curtis, 106 U.S. 371 (1882). [1407] The Alien Registration Act of 1940, 54 Stat. 670, 18 U.S.C.A. § 2385. [1408] McCulloch _v._ Maryland, 4 Wheat. 316, 407 (1819). [1409] Osborn _v._ Bank of the United States, 9 Wheat. 738, 862 (1824). _See also_ Pittman _v._ Home Owners' Loan Corp., 308 U.S. 21 (1939). [1410] First Nat. Bank _v._ Fellows ex rel. Union Trust Co., 244 U.S. 416 (1917); Burnes Nat. Bank _v._ Duncan, 265 U.S. 17 (1924). [1411] Smith _v._ Kansas City Title and Trust Co., 255 U.S. 180 (1921). [1412] Juilliard _v._ Greenman, 110 U.S. 421, 449 (1884). [1413] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869). [1414] Juilliard _v._ Greenman, 110 U.S. 421 (1884). _See also_ Legal Tender Cases, 12 Wall. 457 (1871). [1415] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240, 303 (1935). [1416] Pacific Railroad Removal Cases (Union P.R. Co. _v._ Myers), 115 U.S. 1, 18 (1885); California _v._ Central P.R. Co., 127 U.S. 1, 39 (1888). [1417] Luxton _v._ North River Bridge Co., 153 U.S. 525 (1894). [1418] Clallam County _v._ United States, 263 U.S. 341 (1923). [1419] Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549 (1922). In 1944, the Congressional Joint Committee on Nonessential Federal Expenditures reported that there were then in existence one hundred government corporations, including subsidiaries and quasi-private corporations in which the Government had some special contractual or proprietary interest. S. Doc. No. 227, 78th Cong., 2d sess. 2 (1944). [1420] Rhode Island _v._ Massachusetts, 12 Pet. 657, 721 (1838). [1421] Tennessee _v._ Davis, 100 U.S. 257, 263 (1880). [1422] Chicago & Northwestern R. Co. _v._ Whitton, 13 Wall. 270, 287 (1872). [1423] Embry _v._ Palmer, 107 U.S. 3 (1883). [1424] Bank of United States _v._ Halstead, 10 Wheat. 51, 53 (1825). [1425] United States Exp. Co. _v._ Kountze Bros., 8 Wall. 342, 350 (1860). [1426] Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). [1427] 43 Stat. 5 (1924). _See_ Sinclair _v._ United States, 279 U.S. 263 (1929). [1428] Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940). [1429] Pope _v._ United States, 323 U.S. 1 (1944). [1430] Detroit Trust Company _v._ The "Thomas Barium," 293 U.S. 21 (1934). [1431] Knickerbocker Ice Co. _v._ Stewart, 253 U.S. 149 (1920); Washington _v._ Dawson & Co., 264 U.S. 219 (1924). [1432] Barron _v._ Baltimore, 7 Pet. 243 (1833); Morgan's L. & T.R. & S.S. Co. _v._ Louisiana Board of Health, 118 U.S. 455, 467 (1886). [1433] Munn _v._ Illinois, 94 U.S. 113, 135 (1877); Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388, 400 (1886). [1434] 19 How. 393, 411 (1857). [1435] Gasquet _v._ Lapeyre, 242 U.S. 367 (1917). [1436] 1 Stat. 73, 81 (1789). [1437] Ex parte Watkins, 3 Pet. 193, 202 (1830). [1438] Ex parte Bollman, 4 Cr. 75, 101 (1807). [1439] Price _v._ Johnston, 334 U.S. 266, 282 (1948). [1440] United States _v._ Smith, 331 U.S. 469, 475 (1947). [1441] Gusik _v._ Schilder, 339 U.S. 977 (1950). [1442] Frank _v._ Mangum, 237 U.S. 309, 330 (1915). [1443] 1 Stat. 73, 81 (1789). [1444] Ex parte Watkins, 3 Pet. 193, 202 (1830); Ex parte Kearney, 7 Wheat. 38 (1822). [1445] 14 Stat. 385 (1867). [1446] Frank _v._ Mangum, 237 U.S. 309, 331 (1915). [1447] Ex parte Bollman, 4 Cr. 75 (1807). [1448] Adams _v._ United States ex rel. McCann, 317 U.S. 269, 274 (1942); Glasgow _v._ Moyer, 225 U.S. 420, 428 (1912); Matter of Gregory, 219 U.S. 210, 213 (1911). [1449] Adams _v._ United States ex rel. McCann, 317 U.S. 269, 274 (1942). [1450] Walker _v._ Johnston, 312 U.S. 275 (1941); Waley _v._ Johnston, 316 U.S. 101 (1942). [1451] Ex parte Milligan, 4 Wall. 2, 110 (1866). [1452] McNally _v._ Hill, 293 U.S. 131 (1934). [1453] Goto _v._ Lane, 265 U.S. 393 (1924). [1454] Salinger _v._ Loisel, 265 U.S. 224 (1924). [1455] Wong Doo _v._ United States, 265 U.S. 239 (1924). [1456] Price _v._ Johnston, 334 U.S. 266, 294 (1948). [1457] Corwin, The President, Office and Powers, 178 (3d ed., 1948). [1458] Ex parte Bollman, 4 Cr. 75, 101 (1807). [1459] Messages and Papers of the Presidents, VII, 3219 (1897). [1460] Fed. Cas. No. 9, 487 (1861). [1461] 10 Op. Atty. Gen. 74, 89 (1861-1863). [1462] 12 Stat. 755 (1863). [1463] 4 Wall. 2 (1866). [1464] Ibid. 114. [1465] Story, Commentaries on the Constitution, II, § 1344 (4th ed., 1873). [1466] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867). [1467] United States _v._ Lovett, 328 U.S. 303, 315 (1946). [1468] Ex parte Garland, 4 Wall. 333, 377 (1867). [1469] United States _v._ Lovett, 328 U.S. 303 (1946). [1470] Story, Commentaries on the Constitution, II, § 1345. [1471] 3 Dall. 386, 393 (1798). [1472] Bankers Trust Co. _v._ Blodgett, 260 U.S. 647, 652 (1923). [1473] Burgess _v._ Salmon, 97 U.S. 381 (1878). [1474] Calder _v._ Bull, 3 Dall. 386, 390 (1798); Ex parte Garland, 4 Wall. 333, 377 (1867); Burgess _v._ Salmon, 97 U.S. 381, 384 (1878). [1475] United States _v._ Powers, 307 U.S. 214 (1939). [1476] Neely _v._ Henkel, 180 U.S. 109, 123 (1901). _Cf._ In re Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy); Hirota _v._ MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of Justice Douglas). [1477] Ex parte Garland, 4 Wall. 333 (1867). [1478] Murphy _v._ Ramsey, 114 U.S. 15 (1885). [1479] Mahler _v._ Eby, 264 U.S. 32 (1924); Bugajewitz _v._ Adams, 228 U.S. 585 (1913). [1480] Johannessen _v._ United States, 225 U.S. 227 (1912). [1481] Cook _v._ United States, 138 U.S. 157, 183 (1891). [1482] Calder _v._ Bull, 3 Dall. 386, 390 (1798). [1483] Hopt _v._ Utah, 110 U.S. 574, 589 (1884). [1484] 157 U.S. 429, 573 (1895). [1485] 2 Madison, The Constitutional Convention, 208 (Hunt's ed., 1908). [1486] 3 Dall. 171 (1796). [1487] 7 Hamilton's Works, 845, 848 (Hamilton's ed., 1851). "If the meaning of the word _excise_ is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an _excise_, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax." Ibid. [1488] 4 Annals of Congress, 730 (1794); 2 Madison's Writings, 14, (Library of Congress ed., 1865) (Letter to Thomas Jefferson, May 11, 1794). [1489] 3 Dall. 171, 177 (1796). [1490] Pacific Ins. Co. _v._ Soule, 7 Wall. 433 (1869). [1491] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869). [1492] Scholey _v._ Rew, 23 Wall. 331 (1875). [1493] Springer _v._ United States, 102 U.S. 586 (1881). [1494] Ibid. 602. [1495] 157 U.S. 429 (1895); 158 U.S. 601 (1895). [1496] 28 Stat. 509 (1894). [1497] Stanton _v._ Baltic Mining Co., 240 U.S. 103 (1916); Knowlton _v._ Moore, 178 U.S. 41, 80 (1900). [1498] Nicol _v._ Ames, 173 U.S. 509 (1899). [1499] Knowlton _v._ Moore, 178 U.S. 41 (1900). [1500] Patton _v._ Brady, 184 U.S. 608 (1902). [1501] 192 U.S. 363 (1904). [1502] Ibid. 370. [1503] 192 U.S. 397 (1904). [1504] 220 U.S. 107 (1911). [1505] 240 U.S. 103 (1916). [1506] Ibid. 114. [1507] 232 U.S. 261 (1914). [1508] New York Trust Co. _v._ Eisner, 256 U.S. 345, 349 (1921). [1509] Phillips _v._ Dime Trust & Safe Deposit Co., 284 U.S. 160 (1931). [1510] Tyler _v._ United States, 281 U.S. 497 (1930). [1511] Fernandez _v._ Wiener, 326 U.S. 340 (1945). [1512] Chase National Bank _v._ United States, 278 U.S. 327 (1929). [1513] Bromley _v._ McCaughn, 280 U.S. 124, 136 (1929). _See also_ Helvering _v._ Bullard, 303 U.S. 297 (1938). [1514] Bromley _v._ McCaughn, 280 U.S. 124, 140 (1929). [1515] Loughborough _v._ Blake, 5 Wheat. 317 (1820). [1516] De Treville _v._ Smalls, 98 U.S. 517, 527 (1879). [1517] Turpin & Bro. _v._ Burgess, 117 U.S. 504, 507 (1886). _Cf._ Almy _v._ California, 24 How. 169, 174 (1861). [1518] Dooley _v._ United States, 183 U.S. 151, 154 (1901). [1519] Cornell _v._ Coyne, 192 U.S. 418, 428 (1904); Turpin & Bro. _v._ Burgess, 117 U.S. 504, 507 (1886). [1520] Spalding & Bros. _v._ Edwards, 262 U.S. 66 (1923). [1521] Thompson _v._ United States, 142 U.S. 471 (1892). [1522] Peck & Co. _v._ Lowe, 247 U.S. 165 (1918); National Paper & Type Co. _v._ Bowers, 266 U.S. 373 (1924). [1523] Fairbank _v._ United States, 181 U.S. 283 (1901). [1524] United States _v._ Hvoslef, 237 U.S. 1 (1915). [1525] Thames & Mersey Ins. Co. _v._ United States, 237 U.S. 19 (1915). [1526] Pace _v._ Burgess, 92 U.S. 372 (1876); Turpin & Bro. _v._ Burgess, 117 U.S. 504, 505 (1886). [1527] Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284 U.S. 125, 131 (1931); Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 433 (1856); South Carolina _v._ Georgia, 93 U.S. 4 (1876). In Williams _v._ United States, 255 U.S. 336 (1921) the argument that an act of Congress which prohibited interstate transportation of liquor into States whose laws prohibited manufacture or sale of liquor for beverage purposes was repugnant to this clause was rejected as plainly wanting in merit. [1528] Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284 U.S. 125, 132 (1931). [1529] Smith _v._ Turner (Passenger Cases), 7 How. 283, 414 (1849) (opinion of Justice Wayne); _cf._ Cooley _v._ Board of Port Wardens, 12 How. 299, 314 (1851). [1530] Morgan's L. & T.R. & S.S. Co. _v._ Louisiana Bd. of Health, 118 U.S. 455, 467 (1886). _See also_ Munn _v._ Illinois, 94 U.S. 113, 135 (1877); Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388, 400 (1886). [1531] 1 Stat. 53, 54 (1789). [1532] Thompson _v._ Darden, 198 U.S. 310 (1905). [1533] Alaska _v._ Troy, 258 U.S. 101 (1922). [1534] Cincinnati Soap Co. _v._ United States, 301 U.S. 308, 321 (1937); Knote _v._ United States, 95 U.S. 149, 154 (1877). [1535] United States _v._ Price, 116 U.S. 43 (1885); United States _v._ Realty Co., 163 U.S. 427, 439 (1896); Allen _v._ Smith, 173 U.S. 389, 393 (1899). [1536] Hart _v._ United States, 118 U.S. 62, 67 (1886). [1537] 32 Stat. 388 (1902). [1538] Cincinnati Soap Co. _v._ United States, 301 U.S. 308, 322 (1937). [1539] Reeside _v._ Walker, 11 How. 272 (1851). [1540] United States _v._ Klein, 13 Wall. 128 (1872). [1541] Knote _v._ United States, 95 U.S. 149, 154 (1877); Austin _v._ United States, 155 U.S. 417, 427 (1894). [1542] Hart _v._ United States, 118 U.S. 62, 67 (1886). [1543] 13 Op. Atty. Gen. 538 (1871). [1544] Williams _v._ Bruffy, 96 U.S. 176, 183 (1878). [1545] 14 Pet. 540 (1840). [1546] United States _v._ California, 332 U.S. 19 (1947). [1547] 313 U.S. 69 (1941). [1548] Ibid. 78-79. [1549] Craig _v._ Missouri, 4 Pet. 410, 425 (1830); Byrne _v._ Missouri, 8 Pet. 40 (1834). [1550] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Chaffin _v._ Taylor, 116 U.S. 567 (1886). [1551] Houston & T.C.R. Co. _v._ Texas, 177 U.S. 66 (1900). [1552] Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837). [1553] Darrington _v._ Bank of Alabama, 13 How. 12, 15 (1851); Curran _v._ Arkansas, 15 How. 304, 317 (1853). [1554] Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837). [1555] Woodruff _v._ Trapnall, 10 How. 190, 205 (1851). [1556] Legal Tender Cases, 110 U.S. 421, 446 (1884). [1557] Gwin _v._ Breedlove, 2 How. 29, 38 (1844). _See also_ Griffin _v._ Thompson, 2 How. 244 (1844). [1558] Farmers & Merchants Bank _v._ Federal Reserve Bank, 262 U.S. 649, 659 (1923). [1559] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867); Klinger _v._ Missouri, 13 Wall. 257 (1872); Pierce _v._ Carskadon, 16 Wall. 234, 239 (1873). _See_ p. 317, _supra_, and p. 327, _post_. [1560] Calder _v._ Bull, 3 Dall. 386, 390 (1798); Watson _v._ Mercer, 8 Pet. 88, 110 (1834); Baltimore & S.R. Co. _v._ Nesbit, 10 How. 395, 401 (1850); Carpenter _v._ Pennsylvania, 17 How. 456, 463 (1855); Loche _v._ New Orleans, 4 Wall. 172 (1867); Orr _v._ Gilman, 183 U.S. 278, 285 (1902); Kentucky Union Co. _v._ Kentucky, 219 U.S. 140 (1911). [1561] Frank _v._ Mangum, 237 U.S. 300, 344 (1915); Ross _v._ Oregon, 227 U.S. 150, 161 (1913). [1562] Jaehne _v._ New York, 128 U.S. 189, 190 (1888). [1563] Rooney _v._ North Dakota, 196 U.S. 319, 325 (1905). [1564] Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915). [1565] Samuels _v._ McCurdy, 267 U.S. 188 (1925). [1566] Hawker _v._ New York, 170 U.S. 189, 190 (1898). _See also_ Reetz _v._ Michigan, 188 U.S. 505, 509 (1903); Lehmann _v._ State Board of Public Accountancy, 263 U.S. 394 (1923). [1567] Cummings _v._ Missouri, 4 Wall. 277, 316 (1867). [1568] Pierce _v._ Carskadon, 16 Wall. 234 (1873). [1569] Lindsey _v._ Washington, 301 U.S. 397 (1937). [1570] Kring _v._ Missouri, 107 U.S. 221 (1883). [1571] Holden _v._ Minnesota, 137 U.S. 483, 491 (1890). [1572] Ex parte Medley, 134 U.S. 160, 171 (1890). [1573] Gryger _v._ Burke, 334 U.S. 728 (1948); McDonald _v._ Massachusetts, 180 U.S. 311 (1901); Graham _v._ West Virginia, 224 U.S. 616 (1912). [1574] Malloy _v._ South Carolina, 237 U.S. 180 (1915). [1575] Rooney _v._ North Dakota, 196 U.S. 319, 324 (1905). [1576] Gibson _v._ Mississippi, 162 U.S. 565, 590 (1896). [1577] Duncan _v._ Missouri, 152 U.S. 377, 382 (1894). [1578] Gut _v._ Minnesota, 9 Wall. 35, 37 (1870). [1579] Duncan _v._ Missouri, 152 U.S. 377 (1894). [1580] Mallett _v._ North Carolina, 181 U.S. 589, 593 (1901). [1581] Gibson _v._ Mississippi, 162 U.S. 565, 588 (1896). [1582] Beazell _v._ Ohio, 269 U.S. 167 (1925). [1583] Thompson _v._ Missouri, 171 U.S. 380, 381 (1898). [1584] Thompson _v._ Utah, 170 U.S. 343 (1898). [1585] Dodge _v._ Woolsey, 18 How. 331 (1856); Railroad Co. _v._ McClure, 10 Wall. 511 (1871); New Orleans Gaslight Co. _v._ Louisiana Light & Heat Producing & Mfg. Co., 115 U.S. 650 (1885); Bier _v._ McGehee, 148 U.S. 137, 140 (1893). [1586] New Orleans Waterworks Co. _v._ Rivers, 115 U.S. 674 (1885); Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1 (1898); Vicksburg _v._ Vicksburg Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548 (1914); Cuyahoga River Power Co. _v._ Akron, 240 U.S. 462 (1916). [1587] The above; _also_ Grand Trunk Western R. Co. _v._ Railroad Commission, 221 U.S. 400 (1911); Louisville & N.R. Co. _v._ Garrett, 231 U.S. 298 (1913); Appleby _v._ Delaney, 271 U.S. 403 (1926). [1588] Central Land Co. _v._ Laidley, 159 U.S. 103 (1895). _See also_ New Orleans Waterworks Co. _v._ Louisiana Sugar Ref. Co., 125 U.S. 18 (1888); Hanford _v._ Davies, 163 U.S. 273 (1896); Ross _v._ Oregon, 227 U.S. 150 (1913); Detroit United R. Co. _v._ Michigan, 242 U.S. 238 (1916); Long Sault Development Co. _v._ Call, 242 U.S. 272 (1916); McCoy _v._ Union Elev. Co., 247 U.S. 354 (1918); Columbia R. Gas & E. Co. _v._ South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. _v._ Flanagan, 263 U.S. 444 (1924). [1589] Jefferson Branch Bank _v._ Skelly, 1 Bl. 436, 443 (1862); Bridge Proprietors _v._ Hoboken Co., 1 Wall. 116, 145 (1863); Wright _v._ Nagle, 101 U.S. 791, 793 (1880); and McGahey _v._ Virginia, 135 U.S. 662, 667 (1890); Scott _v._ McNeal, 154 U.S. 34, 45 (1894); Stearns _v._ Minnesota, 179 U.S. 223, 232-233 (1900); Coombes _v._ Getz, 285 U.S. 434, 441 (1932); Atlantic C.L.R. Co. _v._ Phillips, 332 U.S. 168, 170 (1947). [1590] McCullough _v._ Virginia, 172 U.S. 102 (1898); Houston & Texas Central R.R. Co. _v._ Texas, 177 U.S. 66, 76, 77 (1900); Hubert _v._ New Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. _v._ Louisiana, 233 U.S. 362, 376 (1914); Louisiana Ry. & Nav. Co. _v._ New Orleans, 235 U.S. 164, 171 (1914). [1591] State Bank of Ohio _v._ Knoop, 16 How. 369 (1854), and Ohio Life Insurance & Trust Co. _v._ Debolt, 16 How. 416 (1854) are the leading cases. _See also_ Jefferson Branch Bank _v._ Skelly, 1 Bl. 436 (1862); Louisiana _v._ Pilsbury, 105 U.S. 278 (1882); McGahey _v._ Virginia, 135 U.S. 662 (1890); Mobile & Ohio R.R. Co. _v._ Tennessee, 153 U.S. 486 (1894); Bacon _v._ Texas, 163 U.S. 207 (1896); McCullough _v._ Virginia, 172 U.S. 102 (1898). [1592] Gelpcke _v._ Dubuque, 1 Wall. 175, 206 (1864); Havemeyer _v._ Iowa County, 3 Wall. 294 (1866); Thompson _v._ Lee County, 3 Wall. 327 (1866); Kenosha _v._ Lamson, 9 Wall. 477 (1870); Olcott _v._ Fond du Lac County, 16 Wall. 678 (1873); Taylor _v._ Ypsilanti, 105 U.S. 60 (1882); Anderson _v._ Santa Anna, 116 U.S. 356 (1886); Wilkes County _v._ Coler, 180 U.S. 506 (1901). [1593] Great Southern Fire Proof Hotel Co. _v._ Jones, 193 U.S. 532, 548 (1904). [1594] Sauer _v._ New York, 206 U.S. 536 (1907); Muhlker _v._ New York & H.R. Co., 197 U.S. 544, 570 (1905). [1595] Tidal Oil Company _v._ Flanagan, 263 U.S. 444, 450, 451-452 (1924). [1596] Walker _v._ Whitehead, 16 Wall. 314 (1873); Wood _v._ Lovett, 313 U.S. 362, 370 (1941). [1597] 4 Wheat. 122, 197 (1819); _see also_ Curran _v._ Arkansas, 15 How. 304 (1853). [1598] 4 Wheat. 518 (1819). [1599] Ibid. 627. [1600] 290 U.S. 398 (1934). [1601] Ibid. 431. [1602] Ibid. 435. [1603] "The _Blaisdell_ decision represented a realistic appreciation of the fact that ours is an evolving society and that the general words of the contract clause were not intended to reduce the legislative branch of government to helpless impotency." Justice Black, in Wood _v._ Lovett, 313 U.S. 362, 383 (1941). [1604] Wright, The Contract Clause of the Constitution, 95 (Cambridge, 1938). [1605] Farrand, Records, III, 548. [1606] The Federalist, No. 44. [1607] Works of James Wilson, I, 567, (Andrews, ed., 1896). [1608] 2 Dall. 410 (1793). [1609] Ogden _v._ Saunders, 12 Wheat. 213, 338 (1827). [1610] 6 Cr. 87 (1810). [1611] In Ware _v._ Hylton, 3 Dall. 199 (1797) the Court had earlier set aside an act of Virginia as being in conflict with the Treaty of Peace, of 1783, with Great Britain. [1612] As given by Professor Wright in his treatise, The Contract Clause of the Constitution, 22. Professor Wright dates Hamilton's pamphlet, 1796. [1613] 6 Cr. 87, 139 (1810). Justice Johnson, in his concurring opinion, relied exclusively on general principles. "I do not hesitate to declare, that a State does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity." Ibid. 143. _See also_ his words in Satterlee _v._ Matthewson, 2 Pet. 380, 686 (1829); and those of the North Carolina Supreme Court in Barnes _v._ Barnes, 8 Jones L. 53 (N.C.) 366 (1861), quoted in Thomas Henry Calvert. The Constitution and the Courts, I, 948 (Northport, L.I., 1924). In both these opinions it is asseverated that the contracts clause has been made to do the work of "fundamental principles." [1614] 7 Cr. 164 (1812). The exemption from taxation which was involved in this case was held in 1886 to have lapsed through the acquiescence for sixty years of the owners of the lands in the imposition of taxes upon these. Given _v._ Wright, 117 U.S. 648 (1886). [1615] Dartmouth College _v._ Woodward, 4 Wheat. 518 (1819). [1616] It was not until well along in the eighteenth century that the first American business corporation was created: "This was the New London Society United for Trade and Commerce, which was chartered in Connecticut in 1732. It had, however, an early demise. Following this was a second Connecticut charter, namely, for building 'Union Wharf,' on 'Long Wharf,' at New Haven. A similar company, 'The Proprietors of Boston Pier,' or 'The Long Wharf in the Town of Boston in New England,' was chartered by the Massachusetts General Court in 1772. In 1768 the Pennsylvania Assembly incorporated 'The Philadelphia Contributionship for the Insuring of Houses from Loss by Fire.' Alone of the colonial business corporations it has had a continuous existence to the present day. "Apparently the only other business corporations of the colonies were companies for supplying water. One was incorporated in Massachusetts in 1652, and three in Rhode Island in 1772 and 1773. Alongside of these corporations, and, indeed, preceding them, were a large number of unincorporated associations, partnerships, societies, groups of 'undertakers,' 'companies,' formed for a great variety of business purposes. In the eye of the law all of them were probably mere partnerships or tenancies in common. Whaling and fishing companies, so-called, were numerous. There were a number of mining companies, chiefly for producing iron or copper. There were some manufacturing companies, but they were not numerous. Banking institutions were represented notably by the 'Bank of Credit Lumbard,' promoted in Boston by John Blackwell and authorized by the General Court in 1686, and by the 'Land Bank or Manufacturing Scheme' in the same colony in 1739-41. "In addition to these there were a few insurance companies, a number of companies formed for the Indian trade, numerous land companies, large and small, a number of associations for erecting bridges, building or repairing roads, and improving navigation of small streams or rivers. Besides these there were a few colonial corporations not easily classed, such as libraries, chambers of commerce, etc. "During the Revolution few corporations of any sort were chartered. After the conclusion of peace the situation was materially altered. Capital had accumulated during the war. The disbanding of the army set free a labor supply, which was rapidly increased by throngs of immigrants. The day was one of bold experimentation, enthusiastic exploitation of new methods, eager exploration of new paths, confident undertaking of new enterprises. Everything conspired to bring about a considerable extension of corporate enterprise in the field of business before the end of the eighteenth century, notably after the critical period of disunion and Constitution-making has passed. Prior to 1801 over three hundred charters were granted for business corporations; 90 per cent. of them after 1789. Judged by twentieth-century standards these seem few, indeed, but neither in the colonies nor in the mother country was there precedent for such a development." 105 The Nation 512 (New York, Nov. 8, 1917), reviewing Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations (2 vols., Harvard University Press, 1917). [1617] In 1806 Chief Justice Parsons of the Supreme Judicial Court of Massachusetts, without mentioning the contracts clause, declared that rights legally vested in a corporation cannot be "controuled or destroyed by a subsequent statute, unless a power be reserved to the legislature in the act of incorporation," Wales _v._ Stetson, 2 Mass. 143 (1806). _See also_ Stoughton _v._ Baker et al., 4 Mass. 522 (1808) to like effect; _cf._ Locke _v._ Dane, 9 Mass. 360 (1812) in which it is said that the purpose of the contracts clause was to "provide against paper money and insolvent laws." Together these holdings add up to the conclusion that the reliance of the Massachusetts court was on "fundamental principles," rather than the contracts clause. [1618] 4 Wheat., especially at 577-595 (Webster's argument); ibid. 666 (Story's opinion). _See also_ Story's opinion for the Court in Terrett _v._ Taylor, 9 Cr. 43 (1815). [1619] 4 Wheat. 518 (1819). [1620] Ibid. 627. [1621] 4 Wheat. at 637; _see also_ Home of the Friendless _v._ Rouse, 8 Wall. 430, 437 (1869). [1622] 4 Pet. 514 (1830). [1623] 11 Pet. 420 (1837). [1624] Note the various cases to which municipalities are parties. [1625] 4 Wheat. at 629. [1626] In Munn _v._ Illinois, 94 U.S. 113 (1877) a category of "business affected with a public interest" and whose property is "impressed with a public use" was recognized. A corporation engaged in such a business becomes a "quasi-public" corporation, the power of the State to regulate which is larger than in the case of a purely private corporation. Inasmuch as most corporations receiving public franchises are of this character, the final result of Munn _v._ Illinois was to enlarge the police power of the State in the case of the most important beneficiaries of the Dartmouth College decision. [1627] Meriwether _v._ Garrett, 102 U.S. 472 (1880); Covington _v._ Kentucky, 173 U.S. 231 (1899); Hunter _v._ Pittsburgh, 207 U.S. 161 (1907). [1628] East Hartford _v._ Hartford Bridge Co., 10 How. 511 (1851); Hunter _v._ Pittsburgh, 207 U.S. 161 (1907). [1629] Trenton _v._ New Jersey, 262 U.S. 182, 191 (1923). [1630] Newton _v._ Mahoning County, 100 U.S. 548 (1880). [1631] Attorney General ex rel. Kies _v._ Lowrey, 199 U.S. 233 (1905). [1632] Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502 (1942). In this case the contracts involved were municipal bonds, and hence "private" contracts; but the overruling power of the State in relation to its municipalities was one of the grounds invoked by the Court in sustaining the legislation. _See_ Ibid. 509. "'A municipal corporation * * * is a representative not only of the State, but is a portion of its governmental power. * * * The State may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence.'" United States _v._ Baltimore & O.R. Co., 17 Wall. 322, 329 (1873); and _see_ Hunter _v._ Pittsburgh, 207 U.S. 161 (1907). [1633] Butler _v._ Pennsylvania, 10 How. 402 (1850); Fisk _v._ Police Jury, 116 U.S. 131 (1885); Dodge _v._ Board of Education, 302 U.S. 74 (1937); Mississippi Use of Robertson _v._ Miller, 276 U.S. 174 (1928). [1634] Butler _v._ Pennsylvania, 10 How. 420 (1850). _Cf._ Marbury _v._ Madison, 1 Cr. 137 (1803); Hoke _v._ Henderson, 15 N.C., (4 Dev.) 1 (1833). _See also_ United States _v._ Fisher, 109 U.S. 143 (1883); United States _v._ Mitchell, 109 U.S. 146 (1883); Crenshaw _v._ United States, 134 U.S. 99 (1890). [1635] Fisk _v._ Police Jury, 116 U.S. 131 (1885); Mississippi Use of Robertson _v._ Miller, 276 U.S. 174 (1928). [1636] Hall _v._ Wisconsin, 103 U.S. 5 (1880). _Cf._ Higginbotham _v._ Baton Rouge, 306 U.S. 535 (1939). [1637] Phelps _v._ Board of Education, 300 U.S. 319 (1937). [1638] Dodge _v._ Board of Education, 302 U.S. 74 (1937). [1639] Indiana ex rel. Anderson _v._ Brand 303 U.S. 95 (1938). [1640] 7 Cr. 164 (1812). [1641] Delaware Railroad Tax, 18 Wall. 206, 225 (1874); Pacific R. Co. _v._ Maguire, 20 Wall. 36, 43 (1874); Humphrey _v._ Pegues, 16 Wall. 244, 249 (1873); Home of Friendless _v._ Rouse, 8 Wall. 430, 438 (1869). [1642] 16 How. 369 (1854). [1643] Ibid. 382-383. [1644] Salt Co. _v._ East Saginaw, 13 Wall. 373, 379 (1872). _See also_ Welch _v._ Cook, 97 U.S. 541 (1879); Grand Lodge, F. & A.M. _v._ New Orleans, 166 U.S. 143 (1897); Wisconsin & M.R. Co. _v._ Powers, 191 U.S. 379 (1903). _Cf._ Ettor _v._ Tacoma, 228 U.S. 148 (1913), in which it was held that the repeal of a statute providing for consequential damages caused by changes of grades of streets could not constitutionally affect an already accrued right to compensation. [1645] _See_ Christ Church _v._ Philadelphia County, 24 How. 300, 302 (1861); Seton Hall College _v._ South Orange, 242 U.S. 100 (1916). [1646] Compare the above case with Home of Friendless _v._ Rouse, 8 Wall. 430, 437 (1869); _also_ Illinois Central R. Co. _v._ Decatur, 147 U.S. 190 (1893) with Wisconsin & M.R. Co. _v._ Powers, 191 U.S. 379 (1903). [1647] Crane _v._ Hahlo, 258 U.S. 142, 145-146 (1922); Louisiana ex rel. Folsom _v._ New Orleans, 109 U.S. 285, 288 (1883); Morley _v._ Lakeshore & M.S.R. Co., 146 U.S. 162, 169 (1892). That the obligation of contracts clause did not protect vested rights merely as such was stated by the Court as early as Satterlee _v._ Matthewson, 2 Pet. 380, 413 (1829); and again in the Charles River Bridge Co. _v._ Warren Bridge Co., 11 Pet. 420, 539-540 (1837). [1648] _See_ Story's opinion. 4 Wheat. at 712. [1649] Home of Friendless _v._ Rouse, 8 Wall. 430, 438 (1869); Pennsylvania College Cases, 13 Wall. 190, 213 (1872); Miller _v._ New York, 15 Wall. 478 (1873); Murray _v._ Charleston, 96 U.S. 432 (1878); Greenwood _v._ Union Freight R. Co., 105 U.S. 13 (1882); Chesapeake & O.R. Co. _v._ Miller, 114 U.S. 176 (1885); Louisville Water Co. _v._ Clark, 143 U.S. 1 (1892). [1650] New Jersey _v._ Yard, 95 U.S. 104, 111 (1877). [1651] _See_ Holyoke Water Power Co. _v._ Lyman, 15 Wall. 500, 520 (1873), following Fisheries _v._ Holyoke Water Power Co., 104 Mass. 446, 451 (1870); _also_ Shields _v._ Ohio, 95 U.S. 319 (1877); Fair Haven & W.R. Co. _v._ New Haven, 203 U.S. 379 (1906); Berea College _v._ Kentucky, 211 U.S. 45 (1908). _See also_ Lothrop _v._ Stedman, 15 Fed. Cas. No. 8,519 (1875), where the principles of natural justice are thought to set a limit to the power. Earlier is Zabriskie _v._ Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867) where it is said that a new charter may not be substituted; _also_ Allen _v._ McKean, 1 Fed. Cas. No. 229 (1833) in which a federal court set aside a Maine statute somewhat like the one involved in the Dartmouth College case, on the ground that it went beyond the power of mere alteration. In this case, however, only the right to alter had been reserved, in the charter itself, and not the right to repeal. [1652] _See_ in this connection the cases cited by Justice Sutherland in his opinion for the Court in Phillips Petroleum Co. _v._ Jenkins, 297 U.S. 629 (1936). [1653] Curran _v._ Arkansas, 15 How. 304 (1853); Shields _v._ Ohio, 95 U.S. 319 (1877); Greenwood _v._ Union Freight R. Co., 105 U.S. 13 (1882); Adirondack R. Co. _v._ New York, 176 U.S. 335 (1900); Stearns _v._ Minnesota, 179 U.S. 223 (1900); Chicago, M. & St. P.R. Co. _v._ Wisconsin, 238 U.S. 491 (1915); Coombes _v._ Getz, 285 U.S. 434 (1932). [1654] Pennsylvania College Cases, 13 Wall. 190, 218 (1872). _See also_ Calder _v._ Michigan, 218 U.S. 591 (1910). [1655] Lakeshore & M.S.R. Co. _v._ Smith, 173 U.S. 684, 690 (1899); Coombes _v._ Getz, 285 U.S. 434 (1932). Both these decisions cite Greenwood _v._ Union Freight R. Co., 105 U.S. 13, 17 (1882), but without apparent justification. [1656] 4 Pet. 514 (1830). [1657] Thorpe _v._ Rutland & Burlington Railroad Co., 27 Vt. 140 (1854). [1658] Thus a railroad may be required, at its own expense and irrespective of benefits to itself, to eliminate grade crossings in the interest of public safety, (New York & N.E.R. Co. _v._ Bristol, 151 U.S. 556 (1894)); to make highway crossings reasonably safe and convenient for public use, (Great Northern R. Co. _v._ Minnesota, 246 U.S. 434 (1918)); to repair viaducts, (Northern Pac. R. Co. _v._ Minnesota, 208 U.S. 583 (1908)); and to fence its right of way, (Minneapolis & St. L.R. Co. _v._ Emmons, 149 U.S. 364 (1893)). Though a railroad company owns the right of way along a street, the city may require it to lay tracks to conform to the established grade; to fill in tracks at street intersections; and to remove tracks from a busy street intersection, when the attendant disadvantages and expense are small and the safety of the public appreciably enhanced, (Denver & R.G.R. Co. _v._ Denver, 250 U.S. 241 (1919)). Likewise the State, in the public interest, may require a railroad to reestablish an abandoned station, even though the railroad commission had previously authorized its abandonment on condition that another station be established elsewhere, a condition which had been complied with, (New Haven & N. Co. _v._ Hamersley, 104 U.S. 1 (1881)). It may impose upon a railroad liability for fire communicated by its locomotives, even though the State had previously authorized the company to use said type of locomotive power, (St. Louis & S.F.R. Co. _v._ Mathews, 165 U.S. 1, 5 (1897)); and it may penalize the failure to cut drains through embankments so as to prevent flooding of adjacent lands, (Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915)). [1659] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878). _See also_ Fertilizing Co. _v._ Hyde Park, 97 U.S. 659 (1878); and Hammond Packing _v._ Arkansas, 212 U.S. 322, 345 (1909). [1660] 11 Pet. 420 (1837). [1661] 11 Pet. at 548-553. [1662] 201 U.S. 400 (1906). [1663] Ibid. 471-472, citing The Binghamton Bridge, 3 Wall. 51, 75 (1865). [1664] Memphis & L.R.R. Co. _v._ Berry, 112 U.S. 609, 617 (1884). _See also_ Picard _v._ East Tennessee, Virginia & Georgia R. Co., 130 U.S. 637, 641 (1889); Louisville & N.R. Co. _v._ Palmes, 109 U.S. 244, 251 (1883); Morgan _v._ Louisiana, 93 U.S. 217 (1876); Wilson _v._ Gaines, 103 U.S. 417 (1881); Norfolk & W.R. Co. _v._ Pendleton, 156 U.S. 667, 673 (1895). [1665] Railroad Co. _v._ Georgia, 98 U.S. 359, 365 (1879). [1666] Phoenix F. & M. Insurance Co. _v._ Tennessee, 161 U.S. 174 (1896). [1667] Rochester R. Co. _v._ Rochester, 205 U.S. 236 (1907); followed in Wright _v._ Georgia R. & Bkg. Co., 216 U.S. 420 (1910); and New York Rapid Transit Co. _v._ City of New York, 303 U.S. 573 (1938). _Cf._ Tennessee _v._ Whitworth, 117 U.S. 139 (1886) the authority of which is respected in the preceding case. [1668] Chicago, B. & K.C.R. Co. _v._ Missouri ex rel. Guffey, 120 U.S. 569 (1887). [1669] Ford _v._ Delta & Pine Land Co., 164 U.S. 662 (1897). [1670] Vicksburg, S. & P.R. Co. _v._ Dennis, 116 U.S. 665 (1886). [1671] Millsaps College _v._ Jackson, 275 U.S. 129 (1927). [1672] Hale _v._ Iowa State Board of Assessment, 302 U.S. 95 (1937). [1673] Stone _v._ Farmers' Loan & Trust Co. (Railroad Commission Cases), 116 U.S. 307, 330 (1886) extended in Southern Pacific Co. _v._ Campbell, 230 U.S. 537 (1913) to cases in which the word "reasonable" does not appear to qualify the company's right to prescribe tolls. _See also_ American Toll Bridge Co. _v._ Railroad Com. of California et al., 307 U.S. 486 (1939). [1674] Georgia R. & Power Co. _v._ Decatur, 262 U.S. 432 (1923). _See also_ Southern Iowa Electric Co. _v._ Chariton, 255 U.S. 539 (1921). [1675] Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1, 15 (1898). [1676] Skaneateles Water Works Co. _v._ Skaneateles, 184 U.S. 354 (1902); Knoxville Water Co. _v._ Knoxville, 200 U.S. 22 (1906); Madera Water Works _v._ Madera, 228 U.S. 454 (1913). [1677] Rogers Park Water Co. _v._ Fergus, 180 U.S. 624 (1901). [1678] Home Telephone Co. _v._ Los Angeles, 211 U.S. 265 (1908); Wyandotte Gas Co. _v._ Kansas, 231 U.S. 622 (1914). [1679] _See also_ Puget Sound Traction, Light & P. Co. _v._ Reynolds, 244 U.S. 574 (1917). "Before we can find impairment of a contract we must find an obligation of the contract which has been impaired. Since the contract here relied upon is one between a political subdivision of a state and private individuals, settled principles of construction require that the obligation alleged to have been impaired be clearly and unequivocally expressed." Justice Black for the Court in Keefe _v._ Clark, 322 U.S. 393, 396-397 (1944). [1680] Corporation of Brick Church _v._ Mayor et al., 5 Cowen (N.Y.) 538, 540 (1826). [1681] West River Bridge Co. _v._ Dix, 6 How. 507 (1848). _See also_ Backus _v._ Lebanon, 11 N.H. 19 (1840); White River Turnpike Co. _v._ Vermont Cent. R. Co., 21 Vt. 590 (1849); and Bonaparte _v._ Camden & A.R. Co., 3 Fed. Cas. No. 1,617 (1830); cited in Calvert I, 960-961. [1682] Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 (1917). [1683] Illinois Central Railroad _v._ Illinois, 146 U.S. 387, 453, 455 (1892). [1684] _See_ pp. 335-336. [1685] _See_ especially Home of the Friendless _v._ Rouse, 8 Wall. 430 (1869), and Washington University _v._ Rouse, 8 Wall. 439 (1869). [1686] Georgia Railway Co. _v._ Redwine, 342 U.S. 299, 305-06 (1952). The Court distinguishes In re Ayers, 123 U.S. 443 (1887) on the ground that the action there was barred "as one in substance directed against the State to obtain specific performance of a contract with the State". 342 U.S. 305. [1687] Stone _v._ Mississippi, 101 U.S. 814, 820 (1880). [1688] Butcher's Union Co. _v._ Crescent City Co., 111 U.S. 746 (1884). [1689] New Orleans Gas Co. _v._ Louisiana Light Co., 115 U.S. 630 (1885). [1690] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548, 558 (1914). _See also_ Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915); _also_ Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 (1917), where the police power and eminent domain are treated on the same basis in respect of inalienability; also Wabash R. Co. _v._ Defiance, 167 U.S. 88, 97 (1897); Home Telephone Co. _v._ Los Angeles, 211 U.S. 265 (1908); and Calvert I, 962. [1691] Morley _v._ Lake Shore & M.S.R. Co., 146 U.S. 162 (1892); New Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891); Missouri & A. Lumber & Min. Co. _v._ Greenwood Dist, 249 U.S. 170 (1919). But _cf._ Livingston _v._ Moore, 7 Pet. 469, 549 (1833); and Garrison _v._ New York, 21 Wall. 196, 203 (1875), suggesting that a different view was earlier entertained in the case of judgments in actions of debt. [1692] Maynard _v._ Hill, 125 U.S. 190 (1888); Dartmouth College _v._ Woodward, 4 Wheat. 518, 629 (1819). _Cf._ Andrews _v._ Andrews, 188 U.S. 14 (1903). The question whether a wife's rights in the community property under the laws of California were of a contractual nature was raised but not determined in Moffitt _v._ Kelly, 218 U.S. 400 (1910). [1693] New Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891); Zane _v._ Hamilton County, 189 U.S. 370, 381 (1903). [1694] 4 Wheat. 122 (1819). For the first such case in a Federal Circuit Court, _see_ Charles Warren, The Supreme Court in United States History, I, 67 (Boston, 1922). [1695] 12 Wheat. 213 (1827). [1696] Ibid. 353-354. [1697] Von Hoffman _v._ Quincy, 4 Wall. 535, 552 (1867). [1698] 1 How. 311 (1843). [1699] 2 How. 608 (1844). [1700] Oshkosh Waterworks Co. _v._ Oshkosh, 187 U.S. 437, 439 (1903); New Orleans & L.R. Co. _v._ Louisiana, 157 U.S. 219 (1895). [1701] Antoni _v._ Greenhow, 107 U.S. 769 (1883). [1702] The right was unheld in Mason _v._ Haile, 12 Wheat. 370 (1827); and again in Vial _v._ Penniman (Penniman's Case), 103 U.S. 714 (1881). On early English and Colonial law touching the subject, _see_ argument of counsel in Sturges _v._ Crowninshield, 4 Wheat. 122, 140-145 (1819). [1703] McGahey _v._ Virginia, 135 U.S. 662 (1890). [1704] Louisiana ex rel. Ranger _v._ New Orleans, 102 U.S. 203 (1880). [1705] Von Hoffman _v._ Quincy, 4 Wall. 535, 554 (1867). [1706] Antoni _v._ Greenhow, 107 U.S. 769, 775.--Illustrations of changes in remedies, which have been sustained, may be seen in the following cases: Jackson ex dem. Hart _v._ Lamphire, 3 Pet. 280 (1830); Hawkins _v._ Barney, 5 Pet. 457 (1831); Crawford _v._ Branch Bank of Alabama, 7 How. 279 (1849); Curtis _v._ Whitney, 13 Wall. 68 (1872); Cairo & F.R. Co. _v._ Hecht, 95 U.S. 168 (1877); Terry _v._ Anderson, 95 U.S. 628 (1877); Tennessee _v._ Sneed, 96 U.S. 69 (1877); South Carolina _v._ Gaillard, 101 U.S. 433 (1880); Louisiana _v._ New Orleans, 102 U.S. 203 (1880); Connecticut Mut. L. Ins. Co. _v._ Cushman, 108 U.S. 51 (1883); Vance _v._ Vance, 108 U.S. 514 (1883); Gilfillan _v._ Union Canal Co., 109 U.S. 401 (1883); Hill _v._ Merchants' Mut. Ins. Co., 134 U.S. 515 (1890); New Orleans City & Lake R. Co. _v._ Louisiana, 157 U.S. 219 (1895); Red River Valley Nat. Bank _v._ Craig, 181 U.S. 548 (1901); Wilson _v._ Standefer, 184 U.S. 399 (1902); Oshkosh Waterworks Co. _v._ Oshkosh, 187 U.S. 437 (1903); Waggoner _v._ Flack, 188 U.S. 595 (1903); Bernheimer _v._ Converse, 206 U.S. 516 (1907); Henley _v._ Myers, 215 U.S. 373 (1910); Selig _v._ Hamilton, 234 U.S. 652 (1914); Security Sav. Bank _v._ California, 263 U.S. 282 (1923); United States Mortgage Co. _v._ Matthews, 293 U.S. 232 (1934). Compare the following cases, where changes in remedies were deemed to be of such a character as to interfere with substantial rights: Wilmington & W.R. Co. _v._ King, 91 U.S. 3 (1875); Memphis _v._ United States, 97 U.S. 293 (1878); Poindexter _v._ Greenhow, 114 U.S. 269, 270, 298, 299 (1885); Effinger _v._ Kenney, 115 U.S. 566 (1885); Fisk _v._ Jefferson Police Jury, 116 U.S. 131 (1885); Bradley _v._ Lightcap, 195 U.S. 1 (1904); Bank of Minden _v._ Clement, 256 U.S. 126 (1921). [1707] Von Hoffman _v._ Quincy, 4 Wall. 535, 554-555 (1867). [1708] _See also_ Louisiana ex rel. Nelson _v._ St. Martin's Parish, 111 U.S. 716 (1884). [1709] Mobile _v._ Watson, 116 U.S. 289 (1886); Graham _v._ Folsom, 200 U.S. 248 (1906). [1710] Heine _v._ Levee Commissioners, 19 Wall. 655 (1874). _Cf._ Virginia _v._ West Virginia, 246 U.S. 565 (1918). [1711] Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502, 510 (1942). Alluding to the ineffectiveness of purely judicial remedies against defaulting municipalities, Justice Frankfurter says: "For there is no remedy when resort is had to 'devices and contrivances' to nullify the taxing power which can be carried out only through authorized officials. _See_ Rees _v._ City of Watertown, 19 Wall. 107, 124 (1874). And so we have had the spectacle of taxing officials resigning from office in order to frustrate tax levies through mandamus, and officials running on a platform of willingness to go to jail rather than to enforce a tax levy (_see_ Raymond, State and Municipal Bonds, 342-343), and evasion of service by tax collectors, thus making impotent a court's mandate. Yost _v._ Dallas County, 236 U.S. 50, 57 (1915)." 316 U.S. at 511. [1712] Myers _v._ Irwin, 2 Sergeant and Rawle's (Pa.), 367, 371 (1816); _also_, to same effect, Lindenmuller _v._ The People, 33 Barbour (N.Y.), 548 (1861). _See also_ Brown _v._ Penobscot Bank, 8 Mass. 445 (1812). [1713] Manigault _v._ Springs, 199 U.S. 473, 480 (1905). [1714] Jackson _v._ Lamphire, 3 Pet. 280 (1830). _See also_ Phalen _v._ Virginia, 8 How. 163 (1850). [1715] Stone _v._ Mississippi, 101 U.S. 814 (1880). [1716] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878). [1717] New York C.R. Co. _v._ White, 243 U.S. 188 (1917). In this and the preceding two cases the legislative act involved did not except from its operation existing contracts. [1718] Manigault _v._ Springs, 199 U.S. 473 (1905). [1719] Portland Railway, Light & Power Co. _v._ Railroad Comm. of Oregon, 229 U.S. 397 (1913). [1720] Midland Realty Co. _v._ Kansas City Power & Light Co., 300 U.S. 109 (1937). [1721] Hudson County Water Co. _v._ McCarter, 209 U.S. 349 (1908). [1722] Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170, 198 (1921); followed in Levy Leasing Co. _v._ Siegel, 258 U.S. 242 (1922). [1723] Chastleton Corp. _v._ Sinclair, 264 U.S. 543, 547-548 (1924). [1724] 290 U.S. 398 (1934). [1725] Ibid. 442, 444. _See also_ Veix _v._ Sixth Ward Building and Loan Assn. of Newark, 310 U.S. 32 (1940) in which was sustained a New Jersey statute, amending, in view of the Depression, the law governing building and loan associations. The authority of the State to safeguard the vital interests of the people, said Justice Reed, "is not limited to health, morals and safety. It extends to economic needs as well." Ibid. 38-39. [1726] _See_ especially Edwards _v._ Kearzey, 96 U.S. 595 (1878); and Barnitz _v._ Beverly, 163 U.S. 118 (1896). [1727] 290 U.S. 398 (1934). As to conditions surrounding the enactment of moratorium statutes in 1933, _see_ New York Times of January 22, 1933, sec. II, pp. 1-2. [1728] Worthen Co. _v._ Thomas, 292 U.S. 426 (1934); Worthen Co. _v._ Kavanaugh, 295 U.S. 56 (1935). [1729] 295 U.S. at 62. [1730] East New York Savings Bank _v._ Hahn, 326 U.S. 230, 235 (1945). [1731] Honeyman _v._ Jacobs, 306 U.S. 539 (1939). _See also_ Gelfert _v._ National City Bank, 313 U.S. 221 (1941). [1732] 313 U.S. at 233-234. [1733] One reason for this is indicated in the following passage from Justice Field's opinion for the Court in Paul _v._ Virginia, decided in 1869: "At the present day corporations are multiplied to an almost indefinite extent. There is scarcely a business pursued requiring the expenditure of large capital, or the union of large numbers, that is not carried on by corporations. It is not too much to say that the wealth and business of the country are to a great extent controlled by them." 8 Wall. 168, 181-182. [1734] Wright, The Contract Clause, 91-100. [1735] Perry _v._ United States, 294 U.S. 330 (1935); Louisville Joint Stock Bank _v._ Radford, 295 U.S. 555 (1935). The Court has pointed out, what of course, is evident on a reading of the Constitution, that the contract clause is a limitation on the powers of the States and not of the United States. Central P.R. Co. _v._ Gallatin (Sinking Fund Cases), 99 U.S. 700, 718 (1879). _See also_ Mitchell _v._ Clark, 110 U.S. 633, 643 (1884); Legal Tender Cases, 12 Wall. 457, 529 (1871); Continental Ill. Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R. Co., 294 U.S. 648 (1935); St. Anthony Falls Water Power Co. _v._ Board of Water Commissioners, 168 U.S. 349, 372 (1897); Dubuque, S.C.R. Co. _v._ Richmond, 19 Wall. 584 (1874); New York _v._ United States, 257 U.S. 591 (1922). _Cf._ however, Hepburn _v._ Griswold, 8 Wall. 603, 623 (1870); and Central Pacific R.R. Co. _v._ Gallatin (Sinking Fund Cases), 99 U.S. 700, 737 (1879). [1736] _See_, e.g., Neblett et al. _v._ Carpenter, et al., 305 U.S. 297 (1938); Asbury Hospital _v._ Cass County, 326 U.S. 207 (1945); Connecticut Mutual L. Ins. Co. _v._ Moore, 333 U.S. 541 (1948). For a notable case in which the obligations clause was mustered into service, by rather heroic logic, to do work that was afterwards put upon the due process clause, _see_ State Tax On Foreign-Held Bonds, 15 Wall. 300 (1873). [1737] Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 673 (1945). [1738] Woodruff _v._ Parham, 8 Wall. 123 (1869). [1739] 12 Wheat. 419 (1827). [1740] Ibid. 441. [1741] May & Co. _v._ New Orleans, 178 U.S. 496, 502 (1900). [1742] Ibid. 501; Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124 (1928); McGoldrick _v._ Gulf Oil Corp., 309 U.S. 414 (1940). [1743] Low _v._ Austin, 13 Wall. 29 (1872); May & Co. _v._ New Orleans, 178 U.S. 496 (1900). [1744] Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 667 (1945). [1745] Ibid. 664. [1746] Canton R. Co. _v._ Rogan, 340 U.S. 511 (1951). [1747] Brown _v._ Maryland, 12 Wheat. 419, 447 (1827). [1748] Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218 (1933). [1749] Low _v._ Austin, 13 Wall. 29, 33 (1872). [1750] Cook _v._ Pennsylvania, 97 U.S. 566, 573, (1878). [1751] Crew Levick Co. _v._ Pennsylvania, 245 U.S. 292 (1917). [1752] Cooley _v._ Board of Port Wardens, 12 How. 299, 313 (1851). [1753] Waring _v._ Mobile, 8 Wall. 110, 122 (1869). _See also_ Pervear _v._ Massachusetts, 5 Wall. 475, 478 (1867); Schollenberger _v._ Pennsylvania, 171 U.S. 1, 24 (1898). [1754] Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124 (1928). [1755] Nathan _v._ Louisiana, 8 How. 73, 81 (1850). [1756] Mager _v._ Grima, 8 How. 490 (1850). [1757] Brown _v._ Maryland, 12 Wheat. 419, 441 (1827); Hooven & Allison Co. _v._ Evatt, 324 U.S. 652 (1945). [1758] New York ex rel. Burke _v._ Wells, 208 U.S. 14 (1908). [1759] Selliger _v._ Kentucky, 213 U.S. 200 (1909); _cf._ Almy _v._ California, 24 How. 169, 174 (1861). [1760] Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 488 (1888). [1761] 107 U.S. 38 (1883). [1762] Ibid. 55. [1763] Patapsco Guano Co. _v._ North Carolina Bd. of Agriculture, 171 U.S. 345, 301 (1898). For a discussion of the limitations on State power to pass inspection laws resulting from the commerce clause, _see_ pp. 183, 237. [1764] Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 488-489 (1888). [1765] Clyde Mallory Lines _v._ Alabama ex rel. State Docks Commission, 296 U.S. 261, 265 (1935); Cannon _v._ New Orleans, 20 Wall. 577, 581 (1874); Wheeling, P. & C. Transportation Co. _v._ Wheeling, 99 U.S. 273, 283 (1879). [1766] Keokuk Northern Line Packet Co. _v._ Keokuk, 95 U.S. 80 (1877); Parkersburg & Ohio River Transportation Co. _v._ Parkersburg, 107 U.S. 691 (1883); Ouachita Packet Co. _v._ Aiken, 121 U.S. 444 (1887). [1767] Cooley _v._ Board of Port Wardens, 12 How. 299, 314 (1851); Ex parte McNiel, 13 Wall. 236 (1872); Inman Steamship Co. _v._ Tinker, 94 U.S. 238, 243 (1877); Northwestern Union Packet Co. _v._ St. Louis, 100 U.S. 423 (1880); Vicksburg _v._ Tobin, 100 U.S. 430 (1880); Cincinnati, P.B.S. & P. Packet Co. _v._ Catlettsburg, 105 U.S. 559 (1882). [1768] Huse _v._ Glover, 119 U.S. 543, 549 (1886). [1769] Southern S.S. Co. _v._ Portwardens, 6 Wall. 31 (1867). [1770] Peete _v._ Morgan, 19 Wall. 581 (1874). [1771] Morgan's L. & T.R. & S.S. Co. _v._ Board of Health, 118 U.S. 455, 462 (1886). [1772] Wiggins Ferry Co. _v._ East St. Louis, 107 U.S. 365 (1883). _See also_ Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196, 212 (1885); Philadelphia & S. Mail Steamship Co. _v._ Pennsylvania, 122 U.S. 326, 338 (1887); Osborne _v._ Mobile, 16 Wall. 479, 481 (1873). [1773] Cox _v._ Lott (State Tonnage Tax Cases), 12 Wall. 204, 217 (1871). [1774] Luther _v._ Borden, 7 How. 1, 45 (1849). [1775] Presser _v._ Illinois, 116 U.S. 252 (1886). [1776] Poole _v._ Fleeger, 11 Pet 185, 209 (1837). [1777] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104 (1938). [1778] Frankfurter and Landis, The Compact Clause of the Constitution--A Study in Interstate Adjustments, 34 Yale Law Journal, 685, 691 (1925). [1779] Article IX. [1780] Article VI. [1781] 14 Pet. 540 (1840). [1782] Ibid. 570, 571, 572. [1783] 148 U.S. 503, 518 (1893). _See also_ Stearns _v._ Minnesota, 179 U.S. 223, 244 (1900); _also_ reference in next note, at pp. 761-762. [1784] _See_ Leslie W. Dunbar, Interstate Compacts and Congressional Consent, 36 Virginia Law Review, 753 (October, 1950). [1785] Frankfurter and Landis, The Compact Clause of the Constitution--A Study in Interstate Adjustments, 34 Yale Law Journal, 685, 735 (1925); Frederick L. Zimmerman and Mitchell Wendell, Interstate Compacts Since 1925 (1951), 8 Book of States, 26 (1950-1951). [1786] 48 Stat. 909 (1934). [1787] 8 Book of the States, 45 (1950-1951). [1788] 7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. §§ 552, 667a; 33 U.S.C. §§ 11, 567-567b. [1789] Green _v._ Biddle, 8 Wheat. 1, 85 (1823). [1790] Virginia _v._ Tennessee, 148 U.S. 503 (1893). [1791] Virginia _v._ West Virginia, 11 Wall. 39 (1871). [1792] Wharton _v._ Wise, 153 U.S. 155, 173 (1894). [1793] James _v._ Dravo Contracting Co., 302 U.S. 134 (1937). _See also_ Arizona _v._ California, 292 U.S. 341, 315 (1934). [1794] 332 U.S. 631 (1948). [1795] On the activities of the Board, in which representatives of both races participate and from which both races have benefited, _see_ Remarks of Hon. Spessard L. Holland of Florida. Cong. Rec., 81st Cong., 2d sess., v. 96, p. 465-470. [1796] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 433 (1856). [1797] St. Louis & S.F.R. Co. _v._ James, 161 U.S. 545, 562 (1896). [1798] Poole _v._ Fleeger, 11 Pet. 185, 209 (1837); Rhode Island _v._ Massachusetts, 12 Pet. 657, 725 (1838). [1799] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104, 106 (1938). [1800] Green _v._ Biddle, 8 Wheat. 1, 13 (1823); Virginia _v._ West Virginia, 246 U.S. 565 (1918). _See also_ Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518, 566 (1852); Olin _v._ Kitzmiller, 259 U.S. 260 (1922). [1801] Virginia _v._ West Virginia, 246 U.S. 565, 601 (1918). [1802] Dyer _v._ Sims, 341 U.S. 22 (1951). The case stemmed from mandamus proceedings brought to compel the auditor of West Virginia to pay out money to a commission which had been created by a compact between West Virginia and other States to control pollution of the Ohio River. The decision of the Supreme Court of Appeals of West Virginia denying mandamus was reversed by the Supreme Court, and the case remanded. The opinion of the Court, by Justice Frankfurter, reviews and revises the West Virginia Court's interpretation of the State constitution, thereby opening up, temporarily at least, a new field of power for judicial review. Justice Reed, challenging this extension of judicial review, thought the issue determined by the Supremacy Clause. Justice Jackson urged that the compact power was "inherent in sovereignty" and hence was limited only by the requirement of congressional consent. Justice Black concurred in the result without opinion. ARTICLE II EXECUTIVE DEPARTMENT Section 1. The President: Page Clause 1. Powers and term of the President 377 Nature and scope of Presidential power 377 Contemporary source of the Presidency 377 Presidency in the federal convention 378 Executive power; Hamilton's contribution 378 Myers case 379 Curtiss-Wright case 380 Theory of the Presidential office 380 Term of four years 382 Anti-third term tradition 382 Clauses 2, 3, 4, 5, 6, 7, and 8. Election, qualifications, succession, compensation, and oath of the President 383 Maintenance of the office of President 384 "Electoral college" 384 Constitutional status of electors 385 "Natural-born citizen" 386 Presidential succession 387 Act of 1792 387 Acts of 1886 and 1947 388 Compensation and emoluments 388 Oath of office 388 Effect of the oath 389 Section 2. Powers and duties of the President 389 Clause 1. Commander in chiefship; opinions from heads of departments; pardons 389 Commander in chiefship 389 Historical 389 Prize cases 390 Impact of the Prize cases on World Wars I and II 391 Presidential theory of the commander in chiefship in World War II 392 Presidential war agencies 393 Constitutional status of Presidential agencies 394 West Coast Japanese 394 Act of March 21, 1942 395 Presidential government of labor relations 395 "Sanctions" 397 Constitutional basis of sanctions 397 Martial law and constitutional limitations 398 Martial law in Hawaii 400 Case of the Nazi saboteurs 401 War crimes cases 402 President as commander of the forces 403 Commander in chief a civilian officer 404 Presidential advisers 405 The Cabinet 405 Pardons and reprieves 406 Legal nature of a pardon 406 Qualification of above theory 407 Scope of the power 408 "Offenses against the United States"; contempt of court 408 Effects of a pardon: Ex parte Garland 409 Limits to the efficacy of a pardon 410 Congress and Amnesty 411 Clauses 2 and 3. Treaties and appointment of officers 412 Treaty-making power 412 President and Senate 412 Negotiation a Presidential monopoly 412 Treaties as law of the land 413 Origin of the conception 414 Treaty rights versus State power 415 Recent cases 417 When is a treaty self-executing; when not 417 Constitutional freedom of Congress with respect to treaties 418 Treaty-making power and revenue laws 419 Congressional repeal of treaties 420 Treaties versus prior acts of Congress 421 Interpretation and termination of treaties as international compacts 423 Termination of treaties by notice 423 Determination whether a treaty has lapsed 425 Status of a treaty a political question 426 Treaties and the "necessary and proper" clause 426 Constitutional limits of the treaty-making power: Missouri _v._ Holland 428 Indian treaties 431 Present status of Indian treaties 432 International Agreements without Senate approval 433 Routine executive agreements 433 Law-making executive agreements 434 President McKinley's contribution 435 Executive agreements affecting Far Eastern Relations 436 International obligation of executive agreements 436 Litvinov agreement of 1933 437 United States _v._ Belmont 437 United States _v._ Pink; National supremacy 438 Hull-Lothian agreement, 1940 439 War-time agreements 440 Executive agreements by authorization of Congress 441 Reciprocal trade agreements 441 Constitutionality of trade agreements 442 Lend-Lease Act 443 President plus Congress versus Senate 443 Arbitration agreements 444 Agreements under the United Nations Charter 444 United Nations Participation Act 445 Executive establishment 445 "Office" 445 "Ambassadors and other public ministers" 445 Presidential diplomatic agents 447 Congressional regulation of offices 449 Conduct in office 450 The loyalty issue 451 Legislation increasing duties of an officer 452 "Inferior officers"; "employees" 452 Stages of appointment process 453 Nomination 453 Senate approval 453 When Senate consent is complete 453 Commissioning the officer 454 Recess appointments 455 Ad interim designations 455 Removal power; Myers case 455 "Nature of the office" concept 458 Humphrey case 458 Other phases of the removal power 459 Presidential aegis 460 Section 3. Legislative, diplomatic, and law enforcement duties of the President 462 Legislative role of the President 462 Right of Reception 463 Scope of the power 463 A Presidential monopoly 464 "The Logan Act" 464 A formal or a formative power 465 President's diplomatic role 465 Jefferson's real position 466 Power of recognition 467 The case of Cuba 468 Power of nonrecognition 469 President and Congress 470 Congressional implementation of Presidential policies 471 Doctrine of political questions 471 Recent statements of the doctrine 473 The President as law enforcer 475 Types of executive power 475 How the President's own powers are exercised 476 Power and duty of the President in relation to subordinate executive officers 478 Administrative Decentralization _v._ Jacksonian Centralism 478 Congressional Power _v._ Presidential Duty to the Law 479 Myers Case _v._ Humphrey Case 480 Power of the President to guide enforcement of the penal law 481 President as law interpreter 481 Military power in law enforcement: the posse comitatus 482 Suspension of Habeas Corpus by President 484 Preventive martial law 484 Debs case 484 Status of the Debs case, today 485 President's duty in cases of domestic violence 486 President as executive of the law of nations 486 Protection of American rights of person and property abroad 487 Presidential world policing 488 The Atlantic Pact 488 Presidential action in the domain of Congress: Steel Seizure Case 489 Presidential immunity from judicial direction 499 President's subordinates and the courts 500 Section 4. Impeachment 501 Impeachment 501 "Civil" officer 501 "High crimes and misdemeanors" 502 Chase impeachment 502 Johnson impeachment 503 Later impeachments 503 EXECUTIVE DEPARTMENT Article II Section 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: The Nature and Scope of Presidential Power CONTEMPORARY SOURCE OF THE PRESIDENCY The immediate source of article II was the New York constitution of 1777,[1] of which the relevant provisions are the following: "Art. XVIII. * * * The governor * * * shall by virtue of his office, be general and commander in chief of all the militia, and admiral of the navy of this state; * * * he shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them from time to time, provided such prorogations shall not exceed sixty days in the space of any one year; and, at his discretion, to grant reprieves and pardons to persons convicted of crimes, other than treason and murder, in which he may suspend the execution of the sentence, until it shall be reported to the legislature at their subsequent meeting; and they shall either pardon or direct the execution of the criminal, or grant a further reprieve. "Art. XIX. * * * It shall be the duty of the governor to inform the legislature at every session of the condition of the State so far as may concern his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity; to correspond with the Continental Congress and other States; to transact all necessary business with the officers of government, civil and military; to take care that the laws are executed to the best of his ability; and to expedite all such measures as may be resolved upon by the legislature. "To these, of course, are to be added the important powers of qualified appointment and qualified veto. It is to be observed also that there is no question of the interposition of the law of the land to regulate these powers. They are the governor's, by direct grant of the people, and his alone. Another distinguishing characteristic, equally important, is the fact that the governor was to be chosen by a constitutionally defined electorate, not by the legislature. He was also to have a three-year term, and there were to be no limitations on his re-eligibility to office. In short, all the isolated principles of executive strength in other constitutions were here brought into a new whole. Alone they were of slight importance; gathered together they gain new meaning. And, in addition, we have new elements of strength utilized for the first time on the American continent."[2] The appellation "President" appears to have been suggested to the Federal Convention by Charles Pinckney,[3] to whom it may have been suggested by the title at that date of the chief magistrate of Delaware. THE PRESIDENCY IN THE FEDERAL CONVENTION The relevant clause in the Report from the Committee of Detail of August 6, 1787 to the Federal Convention read as follows: "The Executive Power of the United States shall be vested in a single person. His stile shall be 'The President of the United States of America'; and his title shall be 'His Excellency.'"[4] This language recorded the decision of the Convention, sitting in committee of the whole, that the national executive power should be vested in a single person, not a body. For the rest, it is a simple designation of office. The final form of the clause came from the Committee of Style,[5] and was never separately acted on by the Convention. "EXECUTIVE POWER"; HAMILTON'S CONTRIBUTION Is this term a summary description merely of the powers which are granted in more specific terms in succeeding provisions of article II, or is it also a grant of powers; and if the latter, what powers specifically does it comprise? In the debate on the location of the removal power in the House of Representatives in 1789[6] Madison and others urged that this was "in its nature" an "executive power";[7] and their view prevailed so far as executive officers appointed without stated term by the President, with the advice and consent of the Senate, were concerned. Four years later Hamilton, in defending President Washington's course in issuing a Proclamation of Impartiality upon the outbreak of war between France and Great Britain, developed the following argument: "The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.' The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, _and to take care that the laws be faithfully executed._ It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are, 'The _executive power_ shall be vested in a President of the United States.' The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the _executive power_ of the nation is vested in the President; subject only to the _exceptions_ and _qualifications_, which are expressed in the instrument."[8] THE MYERS CASE These enlarged conceptions of the executive power clause have been ratified by the Supreme Court within recent times. In the Myers case,[9] decided in 1926, not only was Madison's contention as to the location of the removal power adopted, and indeed extended, but Hamilton's general theory as to the proper mode of construing the clause was unqualifiedly endorsed. Said Chief Justice Taft, speaking for the Court: "The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, * * *"[10] THE CURTISS-WRIGHT CASE Ten years later Justice Sutherland, speaking for the Court in United States _v._ Curtiss-Wright Corporation,[11] joined Hamilton's conception of the President's role in the foreign relations field to the conception that in this field the National Government is not one of enumerated but of inherent powers;[12] and the practical conclusion he drew was that the constitutional objection to delegation of legislative power does not apply to a delegation by Congress to the President of its "cognate" powers in this field; that, in short, the merged powers of the two departments may be put at the President's disposal whenever Congress so desires.[13] Nor is it alone in the field of foreign relations that the opening clause of article II has promoted latitudinarian conceptions of Presidential power. Especially has his role as "Commander in Chief in wartime" drawn nourishment from the same source, in recent years. The matter is treated in later pages.[14] THEORY OF THE PRESIDENTIAL OFFICE The looseness of the grants of power to the President has been more than once the subject of animadversion.[15] This and the unity of the office furnished a text for opponents of the Constitution while its ratification was pending. "Here," according to Hamilton, writing in The Federalist, "the writers against the Constitution, seem to have taken pains to signalize their talent of misrepresentation."[16] Once the Constitution was adopted, however, the tables were turned, and some members of the first Congress, including certain former members of the Federal Convention, sought to elaborate the monarchical aspects of the office. They would fain give him a title, _His Excellency_ (already applied in several States to the governors thereof), _Highness_, _Elective Majesty_, being suggestions. Ellsworth of Connecticut wished to see his _name or place_ inserted in the enacting clause of statutes. They contrived to make a ceremony of the President's appearances before Congress, his annual address to which, given in person, was answered by a reply equally formal.[17] They sought to enact that "all writs and processes, issuing out of the Supreme or circuit courts shall be in the name of the President of the United States." Although the attempt failed, owing to opposition in the House, the idea was adopted by the Supreme Court itself in its first term, that of February 1790, when it "_ordered_, That (unless, and until, it shall be otherwise provided by law) all process of this court shall be in the name of 'the President of the United States,'"[18] and it has never been otherwise provided by law. Meantime, on October 3, 1789, President Washington had, at the request of a joint committee of "both Houses of Congress," issued the first Thanksgiving Proclamation.[19] The "revolution of 1800" was, in the opinion of its principal author, a revolution against monarchical tendencies, and making a virtue of the fact that he was a bad public speaker, Jefferson, in a symbolic gesture, substituted the written message for the presidential address. But the claims of the presidential office to power Jefferson in no wise abated,[20] although Marshall had predicted that he would;[21] to the contrary he in some respects enlarged upon them. After his day, however, the office passed into temporary eclipse behind its own creature, the Cabinet,[22] an ignominy from which Andrew Jackson rescued it. As "the People's Choice," as all by himself "one of the three _equal_ departments of government,"[23] as the leader of his party, as the embodiment of the unity of the country,[24] Jackson stamped upon the Presidency the outstanding features of its final character, thereby reviving, in the opinion of Henry Jones Ford, "the oldest political institution of the race, the elective Kingship."[25] The modern theory of Presidential power was the contribution primarily of Alexander Hamilton; the modern conception of the Presidential office was the contribution primarily of Andrew Jackson and his times. "THE TERM OF FOUR YEARS" Formerly the term of four years during which the President "shall hold office" was reckoned from March 4 of the alternate odd years beginning with 1789. This came about from the circumstance that under the act of September 13, 1788, of "the Old Congress," the first Wednesday in March, which was March 4, 1789, was fixed as the time for commencing proceedings under the said Constitution. Although as a matter of fact Washington was not inaugurated until April 30 of that year, by an act approved March 1, 1792, it was provided that the presidential term should be reckoned from the fourth day of March next succeeding the date of election. And so things stood until the adoption of the Twentieth Amendment by which the terms of the President and Vice President end at noon on the 20th of January.[26] THE ANTI-THIRD TERM TRADITION The prevailing sentiment of the Philadelphia Convention favored the indefinite eligibility of the President. It was Jefferson who raised the objection that indefinite eligibility would in fact be for life and degenerate into an inheritance. Prior to 1940 the idea that no President should hold for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word "term". President Franklin D. Roosevelt's violation of the tradition led to the proposal by Congress on March 24, 1947, of an amendment to the Constitution to rescue the tradition by embodying it in the Constitutional Document. The proposal became a part of the Constitution on February 27, 1951, in consequence of its adoption by the necessary thirty-sixth State, which was Minnesota. _See_ pp. 54, 1236.[Transcriber's Note: Page 1236 is blank.][27] Clause 2. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. Clause 3. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. Clause 4. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. Clause 5. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. Clause 6. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. Clause 7. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Clause 8. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Maintenance of the Office of President "THE ELECTORAL COLLEGE" The word "appoint" is used in clause 2 "as conveying the broadest power of determination."[28] This power has been used. "Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable."[29] In the Federal Convention James Wilson had proposed that the Electors be "taken by lot from the national Legislature," but the suggestion failed to come to a vote.[30] CONSTITUTIONAL STATUS OF ELECTORS Dealing with the question of the constitutional status of the Electors, the Court said in 1890: "The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the State legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress. * * * In accord with the provisions of the Constitution, Congress has determined the time as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them."[31] The truth of the matter is that the Electors are not "officers" at all, by the usual tests of office.[32] They have neither tenure nor salary, and having performed their single function they cease to exist as Electors. This function is, moreover, "a federal function,"[33] their capacity to perform which results from no power which was originally resident in the States, but springs directly from the Constitution of the United States.[34] In the face, therefore, of the proposition that Electors are State officers, the Court has upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a Presidential Elector;[35] and more recently its power to protect the choice of Electors from fraud or corruption.[36] "'If this government,' said the Court, 'is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.'"[37] The conception of Electors as State officers is still, nevertheless, of some importance, as was shown in the recent case of Ray _v._ Blair,[38] which is dealt with in connection with Amendment XII.[39] "NATURAL-BORN" CITIZEN Clause 3 of this section, while requiring that the Electors each vote for two persons, did not require them to distinguish their choices for President and Vice President, the assumption being that the Vice President would be the runner-up of the successful candidate for President. As a result of this arrangement the election of 1800 produced a dangerous tie between Jefferson and Burr, the candidates of the Republican-Democrat Party for President and Vice President respectively. Amendment XII, which was adopted in 1803 and replaces clause 3, makes a recurrence of the 1800 contretemps impossible. _See_ pp. 941-942. Clause 4 testifies still further to the national character of Presidential Electors. Clause 5 is today chiefly of historical interest, all Presidents since, and including Martin Van Buren, except his immediate successor, William Henry Harrison, having been born in the United States subsequently to the Declaration of Independence. The question, however, has been frequently mooted, whether a child born abroad of American parents is "a natural-born citizen" in the sense of this clause. The answer depends upon whether the definition of "citizens of the United States" in section I of Amendment XIV is to be given an exclusive or inclusive interpretation. _See_ pp. 963-964. PRESIDENTIAL SUCCESSION Was it the thought of the Constitution that a Vice President, in succeeding to "the powers and duties" of the office of President, should succeed also to the title? In answering this question in the affirmative in 1841, John Tyler established a precedent which has been followed ever since; but inasmuch as all successions have taken place in consequence of the death in office of a President, the precedent would not necessarily hold in the case of a succession on account of the temporary inability of the incumbent President. Nor has any procedure been established for determining the question of inability, with the result that in the two instances of disability which have occurred, those of Presidents Garfield and Wilson, the former continued in office until his death and the other, after his partial recovery, till the end of his term. The Act of 1792 In pursuance of its power to provide for the disappearance, whether permanently or temporarily, from the scene of both President and Vice President, Congress has passed three Presidential Succession Acts. A law enacted March 1, 1792[40] provided for the succession first of the President _pro tempore_ of the Senate and then of the Speaker; but in the event that both of these offices were vacant, then the Secretary of State was to inform the executive of each State of the fact and at the same time give public notice that Electors will be appointed in each State to elect a President and Vice President, unless the regular time of such election was so near at hand as to render the step unnecessary. It is unlikely that Congress ever passed a more ill-considered law. As Madison pointed out at the time, it violated the principle of the Separation of Powers and flouted the probability that neither the President _pro tempore_ nor the Speaker is an "officer" in the sense of this paragraph of the Constitution. It thus contemplated the possibility of there being nobody to exercise the powers of the President for an indefinite period, and at the same time set at naught, by the provision made for an interim presidential election, the synchrony evidently contemplated by the Constitution in the choice of a President with a new House of Representatives and a new one-third of the Senate. Yet this inadequate enactment remained on the statute book for nearly one hundred years, becoming all the time more and more unworkable from obsolescence. One provision of it, moreover, still survives, that which ordains that the only evidence of refusal to accept, or of resignation from the office of President or Vice President, shall be an instrument in writing declaring the same and subscribed by the person refusing to accept, or resigning, as the case may be, and delivered into the office of the Secretary of State.[41] The Acts of 1886 and 1947 By the Presidential Succession Act of January 19, 1886,[42] recently repealed, Congress provided that, in case of the disqualification of both President and Vice President, the Secretary of State should act as President provided he possessed the qualifications laid down in clause 5, above; if not, then the Secretary of the Treasury, etc. The act apparently assumed that while a member of the Cabinet acted as President he would retain his Cabinet post. The Succession Act now in force was urged by President Truman, who argued that it was "undemocratic" for a Vice President who had succeeded to the Presidency to be able to appoint his own successor. By the act of July 18, 1947[43] the Speaker of the House and the President _pro tempore_ of the Senate are put ahead of the members of the Cabinet in the order of succession, but when either succeeds he must resign both his post and his seat in Congress; and a member of the Cabinet must in the like situation resign his Cabinet post. The new act also implements Amendment XX by providing for vacancies due to failure to qualify of both a newly elected President and Vice President. COMPENSATION AND EMOLUMENTS Clause 7 may be advantageously considered in the light of what has been determined as to the application of the parallel provision regarding judicial salaries. _See_ pp. 530-531.[44] OATH OF OFFICE What is the time relationship between a President's assumption of office and his taking the oath? Apparently the former comes first. This answer seems to be required by the language of the clause itself, and is further supported by the fact that, while the act of March 1, 1792 assumes that Washington became President March 4, 1789, he did not take the oath till April 30th. Also, in the parallel case of the coronation oath of the British Monarch, its taking has been at times postponed for years after the heir's succession. Effect of the Oath Does the oath add anything to the President's powers? Again to judge from its English-British antecedent, its informing purpose is to restrain rather than to aggrandize power. Jackson, it is true, appealed to the oath in his Bank Veto Message of July 10, 1832; and Lincoln did so in his Message of July 4, 1861; as did Johnson's counsel in his impeachment trial; but in each of these instances the Presidential exercise of power involved rested primarily on other grounds. Section 2. Clause 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. The Commander in Chiefship HISTORICAL The purely military aspects of the Commander in Chiefship were those which were originally stressed. Hamilton said the office "would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy."[45] Story wrote in his Commentaries: "The propriety of admitting the president to be commander in chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents."[46] In 1850 Chief Justice Taney, for the Court, said: "His [the President's] duty and his power are purely military. As commander in chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. * * * But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question."[47] Even after the Civil War a powerful minority of the Court described the role of President as Commander in Chief simply as "the command of the forces and the conduct of campaigns."[48] THE PRIZE CASES The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.[49] In his famous message to Congress of July 4, 1861,[50] Lincoln advanced the claim that the "war power" was his for the purpose of suppressing rebellion; and in the Prize Cases[51] of 1863, a sharply divided Court sustained this theory. The immediate issue of the case was the validity of the blockade which the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.[52] The argument was advanced that a blockade to be valid must be an incident of a "public war" validly declared, and that only Congress could, by virtue of its power "to declare war," constitutionally impart to a military situation this character and scope. Speaking for the majority of the Court, Justice Grier answered: "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be '_unilateral_.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on _that account_, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.' The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized '_a state of war as existing by the act of the Republic of Mexico_.' This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress. This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of _war_. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. * * * Whether the President in fulfilling his duties, as Commander in Chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided _by him_, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case."[53] IMPACT OF THE PRIZE CASES ON WORLD WARS I AND II In brief, the powers claimable for the President under the Commander in Chief clause at a time of wide-spread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war; and--impliedly--vice versa. And since Lincoln performed various acts especially in the early months of the Civil War which, like increasing the Army and Navy, admittedly fell within the constitutional province of Congress, it seems to have been assumed during World War I and World War II that the Commander in Chiefship carries with it the power to exercise like powers practically at discretion; and not merely in wartime but even at a time when war becomes a strong possibility. Nor was any attention given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly did,[54] with the exception of his suspension of the _habeas corpus_ privilege which was regarded by many as attributable to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.[55] Nor is this the only respect in which war or the approach of war operates to enlarge the scope of power which is claimable by the President as Commander in Chief in wartime.[56] For at such time the maxim that Congress may not delegate its powers is, by the doctrine of the Curtiss-Wright case,[57] in a state of suspended animation.[58] PRESIDENTIAL THEORY OF THE COMMANDER IN CHIEFSHIP IN WORLD WAR II In his message of September 7, 1942 to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,[59] the late President Roosevelt formulated his conception of his powers as "Commander in Chief in wartime" as follows: "I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescapable responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos. "In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act. "At the same time that farm prices are stabilized, wages can and will be stabilized also. This I will do. "The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war. "I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. * * * "The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat. "When the war is won, the powers under which I act automatically revert to the people--to whom they belong."[60] PRESIDENTIAL WAR AGENCIES While congressional compliance with the President's demand rendered unnecessary an effort on his part to amend the Price Control Act, there were other matters as to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances prior to it. Thus in exercising both the powers which he claimed as Commander in Chief and those which Congress conferred upon him to meet the emergency, Mr. Roosevelt employed new emergency agencies, created by himself and responsible directly to him, rather than the established departments or existing independent regulatory agencies. Oldest of all these Presidential agencies was the Office for Emergency Management (OEM), which was created by an executive order dated May 25, 1940. Others were the Board of Economic Warfare (BEW), the National Housing Agency (NHA), the National War Labor Board (NWLB), or more shortly (WLB), the Office of Censorship (OC), the Office of Civilian Defense (OCD), the Office of Defense Transportation (ODT), the Office of Facts and Figures (OFF), presently absorbed into the Office of War Information (OWI), the War Production Board (WPB), which superseded the earlier Office of Production Management (OPM), the War Manpower Commission (WMC), etc. Earlier there had been the Office of Price Administration and Civilian Supply (OPACS), but was replaced under the Emergency Price Control Act of January 30, 1942, by OPA. Later OWI was created by executive order, as was also the Office of Economic Stabilization (OES). The Office of War Mobilization and Reconversion (OWMR), one of the last of the war agencies to appear, was established by the War Mobilization and Reconversion Act of October 3, 1944.[61] CONSTITUTIONAL STATUS OF PRESIDENTIAL AGENCIES The question of the legal status of the presidential agencies was dealt with judicially but once. This was in the decision, in June 1944, of the United States Court of Appeals of the District of Columbia in a case styled Employers Group of Motor Freight Carriers _v._ National War Labor Board,[62] which was a suit to annul and enjoin a "directive order" of the War Labor Board. The Court refused the injunction on the ground that at the time when the directive was issued any action of the Board was "informatory," "at most advisory." In support of this view the Court quoted approvingly a statement by the chairman of the Board itself: "These orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite body in which industry, labor, and the public share equal responsibility; and the appeal of the Board is to the moral obligation of employers and workers to abide by the nonstrike, no-lock-out agreement and * * * to carry out the directives of the tribunal created under that agreement by the Commander in Chief." Nor, the Court continued, had the later War Labor Disputes Act vested War Labor Board's orders with any greater authority, with the result that they were still judicially unenforceable and unreviewable. Following this theory, War Labor Board was not an office wielding power, but a purely advisory body, such as Presidents have frequently created in the past without the aid or consent of Congress. Congress itself, nevertheless, both in its appropriation acts and in other legislation, treated the Presidential agencies as in all respects offices.[63] THE WEST COAST JAPANESE On February 19, 1942 the President issued an executive order the essential paragraphs of which read as follows: "Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities * * * "Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. * * * "I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and services."[64] In pursuance of this order more than 112,000 Japanese residents of Western States, of whom nearly two out of every three were natural-born citizens of the United States, were eventually removed from their farms and homes and herded, first in temporary camps, later in ten so-called "relocation centers," situated in the desert country of California, Arizona, Idaho, Utah, Colorado, and Wyoming and in the delta areas of Arkansas. The Act of March 21, 1942 It was apparently the original intention of the Administration to rest its measures concerning this matter on the general principle of military necessity and the power of the Commander in Chief in wartime. But before any action of importance was taken under Executive Order 9066, Congress ratified and adopted it by the act of March 21, 1942,[65] by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order were decided under the order plus the act. The question at issue, said Chief Justice Stone for the Court, "is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional * * * [power] to impose the curfew restriction here complained of."[66] This question was answered in the affirmative, as was the similar question later raised by an exclusion order.[67] PRESIDENTIAL GOVERNMENT OF LABOR RELATIONS The most important segment of the home front regulated by what were in effect Presidential edicts was the field of labor relations. Exactly six months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his proclamation thirteen days earlier of an unlimited national emergency, issued an Executive Order seizing the North American Aviation Plant at Inglewood, California, where, on account of a strike, production was at a standstill. Attorney General Jackson justified the seizure as growing out of the "'duty constitutionally and inherently rested upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern,'" as well as "to obtain supplies for which Congress has appropriated the money, and which it has directed the President to obtain."[68] Other seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive Order 9017, created the National War Labor Board. "Whereas," the order read in part, "by reason of the state of war declared to exist by joint resolutions of Congress, * * *, the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and Whereas as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941, it has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled by peaceful means, and that a National War Labor Board be established for a peaceful adjustment of such disputes. Now, therefore, by virtue of the authority vested in me by the Constitution and the statutes of the United States, it is hereby ordered: 1. There is hereby created in the Office for Emergency Management a National War Labor Board, * * *"[69] In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943,[70] which however still left ample basis for Presidential activity of a legislative character.[71] "SANCTIONS" To implement his directives as Commander in Chief in wartime, and especially those which he issued in governing labor relations, Mr. Roosevelt often resorted to "sanctions," which may be described as penalties lacking statutory authorization. Ultimately, the President sought, by Executive Order 9370 of August 16, 1943, to put sanctions in this field on a systematic basis. This order read: "(a) To other departments or agencies of the Government directing the taking of appropriate action relating to withholding or withdrawing from a noncomplying employer any priorities, benefits or privileges extended, or contracts entered into, by executive action of the Government, until the National War Labor Board has reported that compliance has been effectuated; "(b) To any Government agency operating a plant, mine or facility, possession of which has been taken by the President under section 3 of the War Labor Disputes Act, directing such agency to apply to the National War Labor Board, under section 5 of said act, for an order withholding or withdrawing from a noncomplying labor union any benefits, privileges or rights accruing to it under the terms of conditions of employment in effect (whether by agreement between the parties or by order of the National War Labor Board, or both) when possession was taken, until such time as the noncomplying labor union has demonstrated to the satisfaction of the National War Labor Board its willingness and capacity to comply; but, when the check-off is denied, dues received from the check-off shall be held in escrow for the benefit of the union to be delivered to it upon compliance by it. "(c) To the War Manpower Commission, in the case of noncomplying individuals, directing the entry of appropriate orders relating to the modification or cancellation of draft deferments or employment privileges, or both. "Franklin D. Roosevelt. "The White House, _Aug. 16, 1943._"[72] CONSTITUTIONAL BASIS OF SANCTIONS Sanctions were also occasionally employed by statutory agencies, as by OPA, to supplement the penal provisions of the Emergency Price Control Act of January 30, 1942;[73] and in the case of Steuart and Bro., Inc. _v._ Bowles,[74] the Supreme Court had the opportunity to attempt to regularize this type of executive emergency legislation. Here a retail dealer in fuel oil in the District of Columbia was charged with having violated a rationing order of OPA by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited by the agency from receiving oil for resale or transfer for the ensuing year. The offender conceded the validity of the rationing order in support of which the suspension order was issued, but challenged the validity of the latter as imposing a penalty that Congress has not enacted, and asked the district court to enjoin it. The Court refused to do so and was sustained by the Supreme Court in its position. Said Justice Douglas, speaking for the Court: "Without rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. * * * But middlemen--wholesalers and retailers--bent on defying the rationing system could raise havoc with it. * * * These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduct. * * * Certainly we could not say that the President would lack the power under this Act to take away from a wasteful factory and route to an efficient one a previous supply of material needed for the manufacture of articles of war. * * * From the point of view of the factory owner from whom the materials were diverted the action would be harsh. * * * But in times of war the national interest cannot wait on individual claims to preference. * * * Yet if the President has the power to channel raw materials into the most efficient industrial units and thus save scarce materials from wastage it is difficult to see why the same principle is not applicable to the distribution of fuel oil."[75] Sanctions were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. It is certain, however, that sanctions not uncommonly exceeded this pattern.[76] MARTIAL LAW AND CONSTITUTIONAL LIMITATIONS Two theories of martial law are reflected in decisions of the Supreme Court. By one, which stems from the Petition of Right, 1628, the common law knows no such thing as martial law;[77] at any rate martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, of which necessity the civil courts are the final judges.[78] By the other theory, martial law can be validly and constitutionally established by supreme political authority in wartime. The latter theory is recognized by the Court in Luther _v._ Borden,[79] where it was held that the Rhode Island legislature had been within its rights in 1842 in resorting to the rights and usages of war in combating insurrection in that State. The decision in the Prize Cases,[80] while not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863. The Civil War being safely over, however, a sharply divided Court, in the elaborately argued Milligan case,[81] reverting to the older doctrine, pronounced void President Lincoln's action, following his suspension of the writ of _habeas corpus_ in September, 1863, in ordering the trial by military commission of persons held in custody as "spies" and "abettors of the enemy." The salient passage of the Court's opinion bearing on this point is the following: "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, _then_, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued _after_ the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."[82] Four Justices, speaking by Chief Justice Chase, while holding Milligan's trial to have been void because violative of the act of March 3, 1863 governing the custody and trial of persons who had been deprived of the _habeas corpus_ privilege, declared their belief that Congress could have authorized Milligan's trial. Said the Chief Justice: "Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. * * * We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what States or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety."[83] In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime. MARTIAL LAW IN HAWAII The question of the constitutional status of martial law was raised in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of _habeas corpus_ and conferring on the local commanding General of the Army all his own powers as governor and also "all of the powers normally exercised by the judicial officers * * * of this territory * * * during the present emergency and until the danger of invasion is removed." Two days later the Governor's action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944. By section 67 of the Organic Act of April 30, 1900,[84] the Territorial Governor is authorized "in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of _habeas corpus_, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known." By section 5 of the Organic Act, "the Constitution, * * *, shall have the same force and effect within the said Territory as elsewhere in the United States." In a brace of cases which reached it in February 1945 but which it contrived to postpone deciding till February 1946,[85] the Court, speaking by Justice Black, held that the term "martial law" as employed in the Organic Act, "while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals."[86] The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result. "I assume also," said he, "that there could be circumstances in which the public safety requires, and the Constitution permits, substitution of trials by military tribunals for trials in the civil courts";[87] but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. He warned that "courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight."[88] THE CASE OF THE NAZI SABOTEURS[89] The saboteurs were eight youths, seven Germans and one an American, who, following a course of training in sabotage in Berlin, were brought to this country in June 1942 aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring _habeas corpus_ proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War. The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. "* * * those who during time of war pass surreptitiously from enemy territory into * * * [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission."[90] The second argument it disposed of by showing that petitioners' case was of a kind that was never deemed to be within the terms of Amendments V and VI, citing in confirmation of this position the trial of Major Andre.[91] The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,[92] thereby, in effect, attributing to the latter the right to amend the Articles of War in a case of the kind before the Court _ad libitum_. The decision might well have rested on the ground that the Constitution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. Punishment of the saboteurs was therefore within the President's purely martial powers as Commander in Chief. Moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war they would have been subject under the statutes to restraint and other disciplinary action by the President without appeal to the courts.[93] THE WAR CRIMES CASES As a matter of fact, in General Yamashita's case,[94] which was brought after the termination of hostilities for alleged "war crimes," the Court abandoned its restrictive conception altogether. In the words of Justice Rutledge's dissenting opinion in this case: "The difference between the Court's view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply."[95] And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under International Law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of _ex post facto_ laws; nor does International Law forbid _ex post facto_ laws.[96] THE PRESIDENT AS COMMANDER OF THE FORCES While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so; and he has been known to resolve personally important questions of military policy. Lincoln early in 1862 issued orders for a general advance in the hope of stimulating McClellan to action; Wilson in 1918 settled the question of an independent American command on the Western Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki. As against an enemy in the field the President possesses all the powers which are accorded by International Law to any supreme commander. "He may invade the hostile country, and subject it to the sovereignty and authority of the United States."[97] In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities.[98] He may employ secret agents to enter the enemy's lines and obtain information as to its strength, resources, and movements.[99] He may, at least with the assent of Congress, authorize intercourse with the enemy.[100] He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, thereby incurring for the United States the obligation to render "just compensation."[101] By the same warrant he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions which may determine to a great extent the ensuing peace.[102] He may not, however, effect a permanent acquisition of territory;[103] though he may govern recently acquired territory until Congress sets up a more permanent regime.[104] He is the ultimate tribunal for the enforcement of the rules and regulations which Congress adopts for the government of the forces, and which are enforced through courts-martial.[105] Indeed, until 1830, courts-martial were convened solely on his authority as Commander in Chief.[106] Such rules and regulations are, moreover, it would seem, subject in wartime to his amendment at discretion.[107] Similarly, the power of Congress to "make rules for the government and regulation of the law and naval forces" (Art. I, § 8, cl. 14) did not prevent President Lincoln from promulgating in April, 1863 a code of rules to govern the conduct in the field of the armies of the United States which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad.[108] One important power he lacks, that of choosing his subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in "the President alone."[109] Also, the President's power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal "in pursuance of the sentence of a general court-martial or in mitigation thereof."[110] But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his place.[111] The President's power of dismissal in time of war Congress has never attempted to limit. THE COMMANDER IN CHIEF A CIVILIAN OFFICER Is the Commander in Chiefship a military or civilian office in the contemplation of the Constitution? Unquestionably the latter. A recent opinion by a New York surrogate deals adequately, though not authoritatively, with the subject: "The President receives his compensation for his services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the Constitution that the President's duties as Commander in Chief represents only a part of duties _ex officio_ as Chief Executive [Article II, sections 2 and 3 of the Constitution] and that the latter's office is a civil office. [Article II, section 1 of the Constitution; vol. 91, Cong. Rec. 4910-4916; Beard, The Republic (1943) pp. 100-103.] The President does not enlist in, and he is not inducted or drafted into the armed forces. Nor, is he subject to court-martial or other military discipline. On the contrary, article II, section 4 of the Constitution provides that 'The President, [Vice President] and All Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.' * * * The last two War Presidents, President Wilson and President Roosevelt, both clearly recognized the civilian nature of the President's position as Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows:--'It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service. (United States _v._ Burns, 79 U.S. 246 (1871)). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: 'The supremacy of the civil over the military is one of our great heritages.' Duncan _v._ Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210."[112] Presidential Advisers THE CABINET The above provisions are the meager residue from a persistent effort in the Federal Convention to impose a council on the President.[113] The idea ultimately failed, partly because of the diversity of ideas concerning the Council's make-up. One member wished it to consist of "members of the two houses," another wished it to comprise two representatives from each of three sections, "with a rotation and duration of office similar to those of the Senate." The proposal which had the strongest backing was that it should consist of the heads of departments and the Chief Justice of the Supreme Court, who should preside when the President was absent. Of this proposal the only part to survive was the above cited provision. The consultative relation here contemplated is an entirely one-sided affair, is to be conducted with each principal officer separately and in writing, and to relate only to the duties of their respective offices.[114] The _Cabinet_, as we know it today, that is to say, the Cabinet _meeting_, was brought about solely on the initiative of the first President, and may be dispensed with on Presidential initiative at any time, being totally unknown to the Constitution. Several Presidents have in fact reduced the Cabinet meeting to little more than a ceremony with social trimmings.[115] Pardons and Reprieves THE LEGAL NATURE OF A PARDON In the first case to be decided concerning the pardoning power, Chief Justice Marshall, speaking for the Court, said: "As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. * * * A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him." Marshall thereupon proceeded to lay down the doctrine, that "a pardon is a deed to the validity of which delivery is essential, and delivery is not complete without acceptance"; and that to be noticed judicially this deed must be pleaded, like any private instrument.[116] Qualification of the Above Theory In the case of Burdick _v._ United States,[117] decided in 1915, Marshall's doctrine was put to a test that seems to have overtaxed it, perhaps fatally. Burdick, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him, was proffered by President Wilson "a full and unconditional pardon for all offenses against the United States" which he might have committed or participated in in connection with the matter he had been questioned about. Burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the Supreme Court. "The grace of a pardon," remarked Justice McKenna sententiously, "may be only a pretense * * * involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, * * *"[118] Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President Johnson's amnesties to the Court's notice.[119] In 1927, however, in sustaining the right of the President to commute a sentence of death to one of life imprisonment, against the will of the prisoner, the Court abandoned this view. "A pardon in our days," it said, "is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."[120] Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful.[121] They seem clearly to indicate that by substantiating a commutation order for a deed of pardon, a President can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty.[122] SCOPE OF THE POWER The power embraces all "offences against the United States," except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer;[123] also the power to pardon absolutely or conditionally; and includes the power to commute sentences, which, as seen above, is effective without the convict's consent.[124] It has been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an invasion of the Presidential prerogative, amounting as it does to a condonation of the offense.[125] It was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and by the first Roosevelt--to Aguinaldo's followers--in 1902.[126] Not, however, till after the Civil War was the point adjudicated, when it was decided in favor of Presidential prerogative.[127] "OFFENSES AGAINST THE UNITED STATES"; CONTEMPT OF COURT In the first place, such offenses are not offenses against the States. In the second place, they are completed offenses;[128] the President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the principal cause of James II's forced abdication.[129] Lastly, the term has been held to include criminal contempts of court. Such was the holding in Ex parte Grossman,[130] where Chief Justice Taft, speaking for the Court, resorted once more to English conceptions as being authoritative in construing this clause of the Constitution. Said he: "The King of England before our Revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present day. In the mind of a common law lawyer of the eighteenth century the word pardon included within its scope the ending by the King's grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. [Citing cases.] These cases also show that, long before our Constitution, a distinction had been recognized at common law between the effect of the King's pardon to wipe out the effect of a sentence for contempt in so far as it had been imposed to punish the contemnor for violating the dignity of the court and the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court's order necessary to secure the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in English law[131]." Nor was any new or special danger to be apprehended from this view of the pardoning power. "If," says the Chief Justice, "we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?" Indeed, he queries further, in view of the peculiarities of procedure in contempt cases, "may it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial[132]?" EFFECTS OF A PARDON; EX PARTE GARLAND The great leading case is Ex parte Garland[133] which was decided shortly after the Civil War. By an act passed in 1865 Congress had prescribed that before any person should be permitted to practice in a federal court he must take oath asserting that he had never voluntarily borne arms against the United States, had never given aid or comfort to enemies of the United States, and so on. Garland, who had been a Confederate sympathizer and so was unable to take the oath, had however received from President Johnson the same year "a full pardon 'for all offences by him committed, arising from participation, direct or implied, in the Rebellion,' * * *" The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Said Justice Field for a sharply divided Court: "The inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; [thereto], if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity."[134] Justice Miller speaking for the minority protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice the law. "The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counsellor at law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar."[135] Justice Field's language must today be regarded as much too sweeping in light of a decision rendered in 1914 in the case of Carlesi _v._ New York.[136] Carlesi had some years before been convicted of committing a federal offense. In the instant case the prisoner was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent State offense. This conviction and sentence were upheld by the Supreme Court. While this case involved offenses against different sovereignties, the Court declared by way of dictum that its decision "must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted."[137] LIMITS TO THE EFFICACY OF A PARDON But Justice Field's latitudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued _before conviction_. He is also correct in saying that a full pardon restores a _convict_ to his "civil rights," and this is so even though simple completion of the convict's sentence would not have had that effect. One such right is the right to testify in court, and in Boyd _v._ United States the Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect.[138] But a pardon cannot "make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law."[139] CONGRESS AND AMNESTY Congress cannot limit the effects of a Presidential amnesty. Thus the act of July 12, 1870, making proof of loyalty necessary to recover property abandoned and sold by the government during the Civil War, notwithstanding any Executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was pronounced void. Said Chief Justice Chase for the majority: "* * * the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end."[140] On the other hand, Congress may itself, under the necessary and proper clause, enact amnesty laws remitting penalties incurred under the national statutes,[141] and may stipulate that witnesses before courts or other bodies qualified to take testimony shall not be prosecuted by the National Government for any offenses disclosed by their testimony.[142] Clause 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The Treaty-Making Power PRESIDENT AND SENATE The plan which the Committee of Detail reported to the Federal Convention on August 6, 1787 provided that "the Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court."[143] Not until September 7, ten days before the Convention's final adjournment, was the President made a participant in these powers.[144] The constitutional clause evidently assumes that the President and Senate will be associated throughout the entire process of making a treaty, although Jay, writing in The Federalist, foresaw that the initiative must often be seized by the President without benefit of Senatorial counsel.[145] Yet so late as 1818 Rufus King, Senator from New York, who had been a member of the Convention, declared on the floor of the Senate: "In these concerns the Senate are the Constitutional and the only responsible counsellors of the President. And in this capacity the Senate may, and ought to, look into and watch over every branch of the foreign affairs of the nation; they may, therefore, at any time call for full and exact information respecting the foreign affairs, and express their opinion and advice to the President respecting the same, when, and under whatever other circumstances, they may think such advice expedient."[146] NEGOTIATION A PRESIDENTIAL MONOPOLY Actually, the negotiation of treaties had long since been taken over by the President; the Senate's role in relation to treaties is today essentially legislative in character.[147] "He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it," declared Justice Sutherland for the Court in 1936.[148] The Senate must, moreover, content itself with such information as the President chooses to furnish it.[149] In performing the function that remains to it, however, it has several options. It may consent unconditionally to a proposed treaty, or it may refuse its consent, or it may stipulate conditions in the form of amendments to the treaty or of reservations to the act of ratification, the difference between the two being that, whereas amendments, if accepted by the President and the other party or parties to the Treaty,[150] change it for all parties, reservations limit only the obligations of the United States thereunder. The act of ratification for the United States is the President's act, but may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators present, which signifies two-thirds of a quorum, otherwise the consent rendered would not be that of the Senate as organized under the Constitution to do business.[151] Conversely, the President may, if dissatisfied with amendments which have been affixed by the Senate to a proposed treaty or with the conditions stipulated by it to ratification, decide to abandon the negotiation, which he is entirely free to do.[152] TREATIES AS LAW OF THE LAND Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829; "A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract--when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court."[153] To the same effect, but more accurate, is Justice Miller's language for the Court a half century later, in Head Money Cases: "A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. * * * But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country."[154] Origin of the Conception How did this distinctive feature of the Constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them "self-executory," as it is said; in other words, enforceable by the courts? The answer is that article VI, paragraph 2 was, at its inception, an outgrowth of a major weakness of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress' promises was dependent on the State legislatures. The result was that two highly important Articles of the Treaty of Peace of 1783 not only went unenforced, but were in some instances directly flouted by the local legislatures. These were articles IV and VI, which contained stipulations in favor, respectively, of British creditors of American citizens and of the former Loyalists; in short of _private persons_. Confronted with the reiterated protests of the British government, John Jay, Secretary of the United States for Foreign Affairs, suggested to Congress late in 1786 that it request the State legislatures to repeal all legislation repugnant to the Treaty of Peace, and at the same time authorize their courts in all cases arising from the said treaty to decide and adjudge according to the true intent and meaning of the same, "anything in the said acts * * * to the contrary notwithstanding." On April 13, 1787 Congress unanimously voted Jay's proposal, which on the eve of the assembling of the Federal Convention was transmitted to the State legislatures, by seven of which it was promptly adopted.[155] TREATY RIGHTS VERSUS STATE POWER The first case to arise under article VI, clause 2, was Ware _v._ Hylton.[156] The facts and bearing of the decision are indicated in the syllabus: "A debt, due before the war from an American to a British subject, was during the war, paid into the loan office of Virginia, in pursuance of a law of that State of the 20th of December, 1777, sequestering British property and providing that such payment, and a receipt therefor, should discharge the debt. Held: That the legislature of Virginia which from the 4th of July, 1776, and before the Confederation of the United States, * * * possessed and exercised all the rights of independent governments, had authority to make such law and that the same was obligatory, since every nation at war with another may confiscate all property of, including private debts due, the enemy. Such payment and discharge would therefore be a bar to a subsequent action, unless the creditor's right was revived by the treaty of peace, by which alone the restitution of, or compensation for, British property confiscated during the war by any of the United States could only be provided for. Held, that the fourth article of the treaty of peace between Great Britain and the United States, of September 3, 1783, nullifies said law of Virginia, destroys the payment made under it, and revives the debt, and gives a right of recovery against the principal debtor, notwithstanding such payment thereof, under the authority of State law." In Hopkirk _v._ Bell[157] the Court further held that this same treaty provision prevented the operation of a Virginia statute of limitation to bar collection of antecedent debts. In numerous subsequent cases the Court invariably ruled that treaty provisions supersede inconsistent State laws governing the right of aliens to inherit real estate.[158] Such a case was Hauenstein _v._ Lynham,[159] in which the Court upheld the right of a citizen of the Swiss Republic, under the treaty of 1850 with that country, to recover the estate of a relative dying intestate in Virginia, to sell the same and to export the proceeds from the sale.[160] Recent Cases Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute which excluded aliens ineligible to American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed.[161] But in Oyama _v._ California,[162] decided in 1948, a majority of the Court indicated a strongly held opinion that this legislation conflicted with the equal protection clause of Amendment XIV, a view which has since received the endorsement of the California Supreme Court by a narrow majority.[163] Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923 between the United States and the Reich, to whom real property in the United States had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting State legislation.[164] WHEN IS A TREATY SELF-EXECUTING? What is the scope of the power of American courts under article VI, clause 2, to lend ear to private claims based on treaty provisions, on the ground that such provisions are self-executing? Jay had in mind certain intended victims of State legislation; and in fact the cases reviewed above all arose within the normal field of State legislative power. Nevertheless, as early as 1801, in United States _v._ Schooner Peggy,[165] the Supreme Court, speaking by Chief Justice Marshall, took notice of a treaty with France, executed after a court of admiralty had entered a final judgment condemning a captured French vessel, and finding it applicable to the situation before it, set the judgment aside and ordered the vessel restored to her owners. Since that time the Court has declared repeatedly in cases in which State law was not involved that when a treaty prescribes a rule by which private rights are to be determined, the courts are bound to take judicial notice thereof and to accept it as a rule of decision in any appropriate proceeding to enforce such rights.[166] In short, whether a given treaty provision is self-executing is a question for the Court; although it does not altogether lack guiding principles in deciding it, the most important of which is the doctrine of political questions.[167] _See_ pp. 426, 471-472. CONSTITUTIONAL FREEDOM OF CONGRESS WITH RESPECT TO TREATIES From the foregoing two other questions arise: first, are there types of treaty provisions which only Congress can put into effect? Second, assuming an affirmative answer to the above question, is Congress under constitutional obligation to supply such implementation? For such answer as exists to the first question resort must be had to the record of practice and nonjudicial opinion. The question arose originally in 1796 in connection with the Jay Treaty, certain provisions of which required appropriations to carry them into effect. In view of the third clause of article I, section 9 of the Constitution, which says that "no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; * * *," it was universally agreed that Congress must be applied to if the treaty provisions alluded to were to be put into execution. But at this point the second question arose, to the solution of which the Court has subsequently contributed indirectly. (_See_ pp. 420-421). A bill being introduced into the House of Representatives to vote the needed funds, supporters of the treaty, Hamilton, Chief Justice Ellsworth, and others, argued that the House must make the appropriation willy nilly; that the treaty, having been ratified by and with the advice and consent of the Senate, was "supreme law of the land," and that the legislative branch was bound thereby no less than the executive and judicial branches.[168] Madison, a member of the House, opposed this thesis in a series of resolutions, the nub of which is comprised in the following statement: "When a Treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good."[169] The upshot of the matter was that the House adopted Madison's resolutions, while at the same time voting the required funds.[170] THE TREATY-MAKING POWER AND REVENUE LAWS On the whole, Madison's position has prospered. Discussion whether there are other treaty provisions than those calling for an expenditure of money which require legislation to render them legally operative has centered chiefly on the question whether the treaty-making power can of itself alone modify the revenue laws. From an early date spokesmen for the House have urged that a treaty does not, and cannot, _ex proprio vigore_, become supreme law of the land on this subject; and while the Senate has never conceded this claim formally, yet in a number of instances, "the treaty-making power has inserted in treaties negotiated by it and affecting the revenue laws of the United States, a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by Congress, and the House has claimed that the insertion of such requirements has been, in substance, a recognition of its claim in the premises,"[171] although there are judicial dicta which inferentially support the Senate's position. Latterly the question has become largely academic. Commercial agreements nowadays are usually executive agreements contracted by authorization of Congress itself. Today the vital issue in this area of Constitutional Law is whether the treaty-making power is competent to assume obligations for the United States in the discharge of which the President can, without violation of his oath to support the Constitution, involve the country in large scale military operations abroad without authorization by the war-declaring power, Congress to wit. Current military operations in Korea appear to assume an affirmative answer to this question. CONGRESSIONAL REPEAL OF TREATIES It is in respect to his contention that when it is asked to carry a treaty into effect Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question, as to what happens when a treaty provision and an act of Congress conflict. The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail _leges posteriores priores contrarias abrogant_. In short, the treaty commitments of the United States in no wise diminish Congress's constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said, "Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress."[172] TREATIES _Versus_ PRIOR ACTS OF CONGRESS The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. How as to the converse situation? Two early cases in which Chief Justice Marshall spoke for the Court, stand for the proposition that treaties, so far as self-executing, repeal earlier conflicting acts of Congress. In the case of the "_Peggy_,"[173] certain statutory provisions dealing with the trial of prize cases were held to have been modified by a subsequent treaty with France; and in Foster _v._. Neilson,[174] while holding--mistakenly as he later admitted[175]--that the treaty of January 24, 1818 with Spain was not self-executing with respect to certain land grants, he went on to say that if it had been it would have repealed acts of Congress repugnant to it. With one exception, however, judicial dicta which reiterate this idea are obiter, and are disparaged by Willoughby, as follows: "In fact, however, there have been few (the writer is not certain that there have been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject. Furthermore, with specific reference to commercial arrangements with foreign powers, Congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, has in every instance succeeded in maintaining this point."[176] The single exception just alluded to is Cook _v._ United States,[177] which may be regarded as part of the aftermath of National Prohibition. Here a divided Court, speaking by Justice Brandeis, ruled that the authority conferred by § 581 of the Tariff Act of 1922 and its reenactment in the tariff Act of 1930, upon officers of the Coast Guard to stop and board any vessel at any place within four leagues (12 miles) of the coast of the United States and to seize the vessel, if upon examination it shall appear that any violation of the law has been committed by reason of which the vessel or merchandise therein is liable to forfeiture, is, as respects British vessels suspected of being engaged in attempting to import alcoholic beverages into the United States in violation of its laws, modified by the Treaty of May 22, 1924, between the United States and Great Britain, so as to allow seizure of such vessels only within the distance from the coast which can be traversed in one hour by the vessel suspected of endeavoring to commit the offense.[178] Only one case is cited in support of the proposition that the treaty, being of later date than the act of Congress, superseded it so far as they were in conflict. This is Whitney _v._ Robertson,[179] in which an act of Congress was held to have superseded conflicting provisions of a prior treaty. Moreover, the act of Congress involved in the Cook case had, as above indicated, been reenacted subsequently to the treaty involved. The decision actually accomplishes the singular result of reversing the maxim _leges posteriores_. It may be suspected that it was devised to avoid a diplomatic controversy which in the low estate of Prohibition at that date would not have been worthwhile.[180] INTERPRETATION AND TERMINATION OF TREATIES AS INTERNATIONAL COMPACTS The repeal by Congress of the "self-executing" clauses of a treaty as "law of the land" does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. Hence the question arises of where the Constitution lodges this power; also the closely related question of where it lodges the power to interpret the contractual provisions of treaties. The first case of outright abrogation of a treaty by the United States occurred in 1798, when Congress, by the act of July 7 of that year, pronounced the United States freed and exonerated from the stipulations of the Treaties of 1778 with France.[181] This act was followed two days later by one authorizing limited hostilities against the same country; and in the case of Bas _v._ Tingy[182] the Supreme Court treated the act of abrogation as simply one of a bundle of acts declaring "public war" upon the French Republic. TERMINATION OF TREATIES BY NOTICE The initial precedent in the matter of termination by notice occurred in 1846, when by the Joint Resolution of April 27, Congress authorized the President at his discretion to notify the British Government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode supports the theory that international conventions to which the United States is party, even those terminable on notice, are terminable only by act of Congress.[183] Subsequently Congress has often passed resolutions denouncing treaties or treaty provisions which by their own terms were terminable on notice, and Presidents have usually carried out such resolutions, though not invariably.[184] By the La Follette-Furuseth Seamen's Act, approved March 4, 1915,[185] President Wilson was directed, "within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties," and the required notice was given.[186] When, however, by section 34 of the Jones Merchant Marine Act of 1920 the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, which the act infracted, of the termination thereof, he refused to comply, asserting that he "did not deem the direction contained in section 34 * * * an exercise of any constitutional power possessed by Congress."[187] The same intransigent attitude was continued by Presidents Harding and Coolidge. DETERMINATION WHETHER A TREATY HAS LAPSED At the same time, there is clear judicial recognition that the President may without consulting Congress validly determine the question whether specific treaty provisions have lapsed. The following passage from Justice Lurton's opinion in Charlton _v._ Kelly[188] is pertinent: "If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach. * * * That the political branch of the Government recognizes the treaty obligation as still existing is evidenced by its action in this case. * * * The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition."[189] So also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community.[190] STATUS OF A TREATY A POLITICAL QUESTION All in all, it would seem that the vast weight both of legislative practice and of executive opinion supports the proposition that the power of terminating outright international compacts to which the United States is party belongs, as a prerogative of sovereignty, to Congress alone, but that the President may, as an incident of his function of interpreting treaties preparatory to enforcing them, sometimes authoritatively find that a treaty contract with another power has or has not been breached by the latter and whether, for that reason, it is or is not longer binding on the United States.[191] At any rate, it is clear that any such questions which arise concerning a treaty are of a political nature and will not be decided by the courts. In the words of Justice Curtis in Taylor _v._ Morton:[192] It is not "a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise. * * * These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. They belong to diplomacy and legislation, and not to the administration of existing laws. And it necessarily follows, that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government." Chief Justice Marshall's language in Foster _v._ Neilson[193] is to the same effect. TREATIES AND THE NECESSARY AND PROPER CLAUSE What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress's enumerated powers (those listed in the first 17 clauses of article I, section 8 of the Constitution), then it is these powers which it exercises in carrying such treaty into effect. But if the treaty deals with a subject which falls normally to the States to legislate upon, or a subject which falls within the national jurisdiction because of its international character, then recourse is had to the necessary and proper clause. Thus, of itself, Congress would have no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.[194] Again, Congress could not confer judicial power upon American consuls abroad to be there exercised over American citizens, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements and such legislation has been upheld.[195] Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect.[196] Again, Congress could not ordinarily penalize private acts of violence within a State, but it can punish such acts if they deprive aliens of their rights under a treaty.[197] Referring to such legislation the Court has said: "The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power."[198] In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress's enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass; and the only question that can be raised as to such measures will be whether they are "necessary and proper" measures for the carrying of the treaty in question into operation. The matter is further treated under the next heading. CONSTITUTIONAL LIMITS OF THE TREATY-MAKING POWER; MISSOURI _v._ HOLLAND Our system being theoretically opposed to the lodgement anywhere in government of unlimited power, the question of the scope of this exclusive power has often been pressed upon the Court, which has sometimes used language vaguely suggestive of limitation, as in the following passage from Justice Field's opinion for the Court in Geofroy _v._ Riggs,[199] which was decided in 1890: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. * * * But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."[200] The fact is none the less, that no treaty of the United States nor any provision thereof has ever been found by the Court to be unconstitutional. The most persistently urged proposition in limitation of the treaty-making power has been that it must not invade certain reserved powers of the States. In view of the sweeping language of the supremacy clause, it is hardly surprising that this argument has not prevailed.[201] Nevertheless, the Court was forced to answer it as recently as 1923. This was in the case of Missouri _v._ Holland,[202] in which the Court sustained a treaty between the United States and Great Britain providing for the reciprocal protection of migratory birds which make seasonal flights from Canada into the United States and vice versa, and an act of Congress passed in pursuance thereof which authorized the Department of Agriculture to draw up regulations to govern the hunting of such birds, subject to the penalties specified by the act. To the objection that the treaty and implementing legislation invaded the acknowledged police power of the State in the protection of game within its borders, Justice Holmes, speaking for the Court, answered: "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found. (Andrews _v._ Andrews, 188 U.S. 14, 33 (1903)). What was said in that case with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. * * * The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved."[203] And again: "Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld."[204] Justice Sutherland's later assertion in the Curtiss-Wright case[205] that the powers "to declare and wage war, to conclude peace, to make treaties," etc., belong to "the Federal Government as the necessary concomitants of nationality" leaves even less room for the notion of a limited treaty-making power, as indeed appears from his further statement that "as a member of the family of nations, the right and power of the United States * * * are equal to the right and power of the other members of the international family."[206] No doubt there are specific limitations in the Constitution in favor of private rights which "go to the roots" of all power. But these do not include the reserved powers of the States; nor do they appear to limit the National Government in its choice of matters concerning which it may treat with other governments.[207] INDIAN TREATIES In the early cases of Cherokee Nation _v._ Georgia[208] and Worcester _v._ Georgia[209] the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a foreign state within the meaning of that clause of the Constitution which extends the judicial power of the United States to controversies "between a State or the citizens thereof and foreign states, citizens or subjects"; secondly, that: "The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense."[210] Later cases established that the power to make treaties with the Indian tribes was coextensive with the power to make treaties with foreign nations;[211] that the States were incompetent to interfere with rights created by such treaties;[212] that as long as the United States recognized the national character of a tribe, its members were under the protection of treaties and of the laws of Congress and their property immune from taxation by a State;[213] that a stipulation in an Indian treaty that laws forbidding the introduction of liquors into Indian territory was operative without legislation, and binding on the courts although the territory was within an organized county of the States;[214] that an act of Congress contrary to a prior Indian treaty repealed it.[215] Present Status of Indian Treaties Today Indian treaties is a closed account in the Constitutional Law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871 it was provided "That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: _Provided, further_, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe."[216] Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld. Thus the admission of Wyoming as a State was found to abrogate, _pro tanto_, a treaty guaranteeing certain Indians the right to hunt on unoccupied lands of the United States so long as game may be found thereon and to bring hunting by the Indians within the police power of the State.[217] Similarly, statutes modifying rights of members in tribal lands,[218] granting a right of way for a railroad through lands ceded by treaty to an Indian tribe,[219] or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,[220] have been sustained. When, on the other hand, definite property rights have been conferred upon individual Indians, whether by treaty or under an act of Congress, they are protected by the Constitution to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence it was held that certain Indian allottees under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, acquired vested rights of exemption from State taxation which were protected by the Fifth Amendment against abrogation by Congress.[221] International Agreements Without Senate Approval The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Constitution recognizes a distinction between "treaties" and "agreements" or "compacts," but does not indicate what the difference is; and what difference there once may have been has been seriously blurred in practice within recent decades. The President's power to enter into agreements or compacts with other governments without consulting the Senate must be referred to his powers as organ of foreign relations and as Commander in Chief. From an early date, moreover, Congress has authorized executive agreements within the field of its powers, postal agreements, trade-mark and copyright agreements, reciprocal trade agreements. Executive agreements may also stem from treaties.[222] ROUTINE EXECUTIVE AGREEMENTS Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story's words, "the mere private rights of sovereignty."[223] Crandall lists scores of such agreements entered into with other governments by the authorization of the President.[224] Such agreements are ordinarily directed to particular and comparatively trivial disputes and by the settlement the effect of these cease _ipso facto_ to be operative. Also there are such time-honored diplomatic devices as the "protocol" which marks a stage in the negotiation of a treaty, and the _modus vivendi_, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country's destiny. Within recent decades, in consequence particularly of our participation in World War II and our immersion in the conditions of international tension which have prevailed both before and after this war, Presidents have entered into agreements with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent. LAW-MAKING EXECUTIVE AGREEMENTS An early instance of executive treaty-making was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later was laid before the Senate with a query as to whether it was within the President's power, or whether advice and consent of the Senate were required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications.[225] Of a kindred type, and owing much to the President's capacity as Commander in Chief, was a series of agreements entered into with Mexico between 1882 and 1896 according each country the right to pursue marauding Indians across the common border.[226] Commenting on such an agreement, the Court remarked, a bit uncertainly: "While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect."[227] Justice Gray and three other Justices were of the opinion that such action by the President must rest upon express treaty or statute.[228] PRESIDENT McKINLEY'S CONTRIBUTION Notable expansion of Presidential power in this field first became manifest in the administration of President McKinley. At the outset of war with Spain the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, "would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars."[229] Hostilities with Spain were brought to an end in August 1898 by an armistice the conditions of which largely determined the succeeding treaty of peace,[230] just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander in Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; and a year later, again without consulting either Congress or the Senate, accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers.[231] Commenting on the Peking protocol Willoughby quotes with approval the following remark: "This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character. * * *, purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Pekin, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot."[232] EXECUTIVE AGREEMENTS AFFECTING FAR EASTERN RELATIONS It was during this period, too, that John Hay, as McKinley's Secretary of State, initiated his "Open Door" policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy and Japan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably.[233] Then in 1905 the first Roosevelt, seeking to arrive at a diplomatic understanding with Japan, instigated an exchange of opinions between Secretary of War Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration assented to the establishment by Japan of a military protectorate in Korea.[234] Three years later Secretary of State Root and the Japanese ambassador at Washington entered into the Root-Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China.[235] Meantime, in 1907, by a "Gentlemen's Agreement," the Mikado's government had agreed to curb the emigration of Japanese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost Japan loss of face. The final of this series of executive agreements touching American relations in and with the Far East was the product of President Wilson's diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan's "special interests" in China, and Japan assented to the principle of the Open Door in that country.[236] THE INTERNATIONAL OBLIGATION OF EXECUTIVE AGREEMENTS The question naturally suggests itself: What sort of obligation does an agreement of the above description impose upon the United States? The question was put to Secretary Lansing himself in 1918 by a member of the Foreign Relations Committee, as follows: "Has the so-called Lansing-Ishii Agreement any binding force on this country?" and replied that it had not; that it was simply a declaration of American policy so long as the President or State Department might choose to continue it.[237] Actually, it took the Washington Conference of 1921, two solemn treaties and an exchange of notes to get rid of it; while the "Gentlemen's Agreement," first drawn in 1907, was finally put an end to, after seventeen years, only by an act of Congress.[238] That executive agreements are sometimes cognizable by the courts was indicated earlier. The matter is further treated immediately below. THE LITVINOV AGREEMENT OF 1933 The executive agreement attained its fullest development as an instrument of foreign policy under President Franklin D. Roosevelt, even at times threatening to replace the treaty-making power, if not formally yet actually, as a determinative element in the field of foreign policy. Mr. Roosevelt's first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933 with Maxim M. Litvinov, People's Commissar for Foreign Affairs, whereby American recognition was extended to the Union of Soviet Socialist Republics in consideration of certain pledges, the first of which was the promise to restrain any persons or organizations "under its direct or indirect control, * * *, from any act overt or covert liable in any way whatsoever to injure the tranquillity, prosperity, order, or security of the whole or any part of the United States, * * *"[239] United States _v._ Belmont The Litvinov Agreement is also noteworthy for giving rise to two cases which afforded the Court the opportunity to evaluate the executive agreement in terms of Constitutional Law. The earlier of these was United States _v._ Belmont,[240] decided in 1937. The point at issue was whether a district court of the United States was free to dismiss an action by the United States, as assignee of the Soviet government, for certain moneys which were once the property of a Russian metal corporation whose assets had been appropriated by the Soviet government. The Court, speaking by Justice Sutherland, said "No." The President's act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, "as the sole organ" of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did State laws and policies make any difference in such a situation; for while the supremacy of treaties is established by the Constitution in express terms, yet the same rule holds "in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States."[241] United States _v._ Pink; National Supremacy In the United States _v._ Pink,[242] decided five years later, the same course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled under the Executive Agreement of 1933 to recover the assets of the New York branch of a Russian insurance company. The company argued that the decrees of confiscation of the Soviet Government did not apply to its property in New York, and could not consistently with the Constitution of the United States and that of New York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was "a modest implied power of the President who is the 'sole organ of the Federal Government in the field of international relations' * * * It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals. * * * We would usurp the executive function if we held that that decision was not final and conclusive on the courts. 'All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature, * * *'[243] * * * It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy.[244] But State law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement.[245] Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the form * * * must give way before the superior Federal policy evidenced by a treaty or international compact or agreement.[246] * * * The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would 'imperil the amicable relations between governments and vex the peace of nations.'[247] * * * It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish. * * * No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to State laws or State policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts." And while "aliens as well as citizens are entitled to the protection of the Fifth Amendment," that amendment did not bar the Federal Government "from securing for itself and our nationals priority [against] creditors who are nationals of foreign countries and whose claims arose abroad."[248] THE HULL-LOTHIAN AGREEMENT, 1940 The fall of France in June 1940 inspired President Roosevelt to enter the following summer into two executive agreements the total effect of which was to transform the role of the United States from one of strict neutrality toward the war then waging in Europe to one of semi-belligerency. The first of these agreements was with Canada, and provided that a Permanent Joint Board on Defense was to be set up at once by the two countries which would "consider in the broad sense the defense of the north half of the Western Hemisphere."[249] The second, and more important agreement, was the Hull-Lothian Agreement of September 2, 1940, under which, in return for the lease to it for ninety-nine years of certain sites for naval bases in the British West Atlantic, our Government handed over to the British Government fifty over-age destroyers which had been recently reconditioned and recommissioned.[250] The transaction, as justified in an opinion by the Attorney General, amounted to a claim for the President, in his capacity as Commander in Chief and organ of foreign relations, to dispose of property of the United States, although the only power to do this which the Constitution mentions is that which it assigns to Congress.[251] On April 9, 1941, the State Department, in consideration of the fact that Germany had, on April 9, 1940, occupied Denmark, entered into an executive agreement with the Danish minister at Washington, whereby the United States acquired the right to occupy Greenland for the duration, for purposes of defense.[252] WARTIME AGREEMENTS That the post-war diplomacy of the United States has been greatly influenced by such executive agreements as those which are associated with Cairo, Teheran, Malta, and Potsdam, is evident.[253] The Executive Agreement thus became, in an era in which the instability of international relations forbade successful efforts at treaty-making, the principal instrument of Presidential initiative in the field of foreign relations. Whether the United Nations Charter and the Atlantic Pact signalize the end of this era will doubtless appear in due course. EXECUTIVE AGREEMENTS BY AUTHORIZATION OF CONGRESS "The first known use of the executive agreement under the Constitution of the United States," writes Dr. McClure, "was for the development of international communication by means of the postal service. The second Congress, in establishing the Post Office, which had theretofore been dealt with through legislation carrying it on from year to year, enacted that 'the Postmaster General may make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post-offices.' It was further provided that this act, of February 20, 1792, should 'be in force for the term of two years, from the * * * first day of June next, and no longer.'"[254] Reciprocal Trade Agreements Under later legislation executive agreements, or what in effect were such, have been authorized by which American patents, copyrights, and trade-marks have secured protection abroad in return for like protection by the United States of similar rights of foreign origin.[255] But the most copious source of executive agreements has been legislation which provided basis for reciprocal trade agreements, with other countries.[256] The culminating act of this species was that of June 12, 1934, which provided, in part, as follows: "* * *, the President, whenever he finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening and restricting the foreign trade of the United States and that the purpose above declared will be promoted by the means hereinafter specified, is authorized from time to time--'(1) To enter into foreign trade agreements with foreign governments or instrumentalities thereof'; and '(2) To proclaim such modifications of existing duties and other import restrictions, or such additional import restrictions, or such continuance, and for such minimum periods, of existing customs or excise treatment of any article covered by foreign trade agreements, as are required or appropriate to carry out any foreign trade agreement that the President has entered into hereunder. No proclamation shall be made increasing or decreasing by more than 50 per centum any existing rate of duty or transferring any article between the dutiable and free lists.'"[257] This act, renewed at three-year intervals, is still in effect, and under it many trade agreements were negotiated by former Secretary of State Hull. The Constitutionality of Trade Agreements In Field _v._ Clark,[258] decided in 1892 this type of legislation was sustained against the objection that it attempted an unconstitutional delegation "of both legislative and treaty-making powers." The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with the court statement that, "What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President."[259] Although two Justices disagreed, the question has never been revived. However, in Altman and Co. _v._ United States,[260] decided twenty years later, a collateral question was passed upon. This was whether an act of Congress which gave the federal circuit courts of appeal jurisdiction of cases in which "the validity or construction of any treaty, * * *, was drawn in question" embraced a case involving a trade agreement which had been made under the sanction of the Tariff Act of 1897. Said the Court: "While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, § 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court."[261] The Lend-Lease Act The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations; and took place at a time when war appeared to be in the offing, and was in fact only a few months away. The legislation referred to was the Lend-Lease Act of March 11, 1941[262] by which the President was empowered for something over two years--and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so, to authorize "the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government," to manufacture in the government arsenals, factories, and shipyards, or "otherwise procure," to the extent that available funds made possible, "defense articles"--later amended to include foodstuffs and industrial products--and "sell, transfer title to, exchange, lease, lend, or otherwise dispose of," the same to the "government of any country whose defense the President deems vital to the defense of the United States," and on any terms that he "deems satisfactory." Under this authorization the United States entered into Mutual Aid Agreements whereby the government furnished its allies in the recent war forty billions of dollars worth of munitions of war and other supplies. PRESIDENT PLUS CONGRESS VERSUS SENATE The partnership which has developed within recent decades between the President and Congress within the field of their cognate powers is also illustrated by the act of February 9, 1922, creating a commission to effect agreements respecting debts owed this country by certain other governments, the resulting agreements to be approved by Congress;[263] by the circumstances attending the drawing up in 1944 of the United Nations Relief and Rehabilitation Convention;[264] by the Joint Resolution of June 19, 1934, by which the President was authorized to accept membership for the United States in the International Labor Office.[265] It is altogether apparent in view of developments like these that the executive agreement power, especially when it is supported by Congressional legislation, today overlaps the treaty-making power. ARBITRATION AGREEMENTS In 1904-1905 Secretary of State John Hay negotiated a series of treaties providing for the general arbitration of international disputes. Article II of the treaty with Great Britain, for example, provided as follows: "In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute and the scope of the powers of the Arbitrators, and fixing the periods for the formation of the Arbitral Tribunal and the several stages of the procedure."[266] The Senate approved the British treaty by the constitutional majority having, however, first amended it by substituting the word "treaty" for "agreement." President Theodore Roosevelt, characterizing the "ratification" as equivalent to rejection, sent the treaties to repose in the archives. "As a matter of historical practice," Dr. McClure comments, "the _compromis_ under which disputes have been arbitrated include both treaties and executive agreements in goodly numbers,"[267] a statement supported by both Willoughby and Moore.[268] AGREEMENTS UNDER THE UNITED NATIONS CHARTER Article 43 of the United Nations Charter provides: "1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. 2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. 3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."[269] This time the Senate did not boggle over the word "agreement." The United Nations Participation Act The United Nations Participation Act of December 20, 1945 implements these provisions as follows: "The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: _Provided_, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements."[270] The Executive Establishment "OFFICE" "An office is a public station, or employment, conferred by the appointment of government," and "embraces the ideas of tenure duration, emolument, and duties."[271] "AMBASSADORS AND OTHER PUBLIC MINISTERS" The term "ambassadors and other public ministers," comprehends "all officers having diplomatic functions, whatever their title or designation."[272] It was originally assumed that such offices were established by the Constitution itself, by reference to the Law of Nations, with the consequence that appointments might be made to them whenever the appointing authority--the President and Senate--deemed desirable.[273] During the first sixty-five years of the Government Congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the President. Indeed, during the administrations of Washington, Adams and Jefferson, and the first term of Madison, no mention occurs in any appropriation act even, of ministers of a specified rank at this or that place, but the provision for the diplomatic corps consisted of so much money "for the expenses of foreign intercourse," to be expended at the discretion of the President. In Madison's second term the practice was introduced of allocating special sums to the several foreign missions maintained by the Government, but even then the legislative provisions did not purport to curtail the discretion of the President in any way in the choice of diplomatic agents. In 1814, however, when President Madison appointed, during a recess of the Senate, the Commissioners who negotiated the Treaty of Ghent the theory on which the above legislation was based was drawn into question. Inasmuch, it was argued, as these offices had never been established by law, no vacancy existed to which the President could constitutionally make a recess appointment. To this argument it was answered that the Constitution recognizes "two descriptions of offices altogether different in their nature, authorized by the constitution--one to be created by law, and the other depending for their existence and continuance upon contingencies. Of the first kind, are judicial, revenue, and similar offices. Of the second, are Ambassadors, other public Ministers, and Consuls. The first description organize the Government and give it efficacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and how they become vacant, may always be ascertained with perfect precision. Not so with the second description. They depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. As an independent power, the United States have relations with all other independent powers; and the management of those relations is vested in the Executive."[274] By the opening section of the act of March 1, 1855, it was provided that "from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary," with a specified annual compensation for each, "to the following countries, * * *" In the body of the act was also this provision: "The President shall appoint no other than citizens of the United States, who are residents thereof, or who shall be abroad in the employment of the Government at the time of their appointment, * * *."[275] The question of the interpretation of the act having been referred to Attorney General Cushing, he ruled that its total effect, aside from its salary provisions, was recommendatory only. It was "to say, that if, and whenever, the President shall, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary to Great Britain, or to Sweden, the compensation of that minister shall be so much and no more."[276] This line of reasoning is today only partially descriptive of facts. The act of March 2, 1909, provides that new ambassadorships may be created only with the consent of Congress,[277] while the Foreign Service Act of 1924[278] organizes the foreign service, both its diplomatic and its consular divisions, in detail as to grades, salaries, appointments, promotions, and in part as to duties. Theoretically the act leaves the power of the President and Senate to appoint consular and diplomatic officials intact, but in practice the vast proportion of the selections are made in conformance with the civil service rules. PRESIDENTIAL DIPLOMATIC AGENTS What the President may have lost in consequence of the intervention of Congress in this field, he has made good through his early conceded right to employ, in the discharge of his diplomatic function, so-called "special," "personal," or "secret" agents without consulting the Senate. When President Jackson's right to resort to this practice was challenged in the Senate in 1831, it was defended by Edward Livingston, Senator from Louisiana, to such good purpose that Jackson made him Secretary of State. "The practice of appointing secret agents," said Livingston, "is coeval with our existence as a nation, and goes beyond our acknowledgment as such by other powers. All those great men who have figured in the history of our diplomacy, began their career, and performed some of their most important services in the capacity of secret agents, with full powers. Franklin, Adams, Lee, were only commissioners; and in negotiating a treaty with the Emperor of Morocco, the selection of the secret agent was left to the Ministers appointed to make the treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed Thomas Barclay, who went to Morocco and made a treaty, which was ratified by the Ministers at Paris. "These instances show that, even prior to the establishment of the Federal Government, secret plenipotentiaries were known, as well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter-carriers, or spies, to whom it has been found necessary in argument to assimilate them. On the 30th March, 1795, in the recess of the Senate, by letters patent under the great broad seal of the United States, and the signature of their President, (that President being George Washington,) countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with Algiers. By instructions from the President, he was afterwards authorized to employ Joseph Donaldson as agent in that business. In May, of the same year, he did appoint Donaldson, who went to Algiers, and in September of the same year concluded a treaty with the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the 28th November in the same year, and afterwards ratified by the Senate on the ---- day of ----, 1796, and an act passed both Houses on 6th May, 1796, appropriating a large sum, twenty-five thousand dollars annually, for carrying it into effect."[279] The precedent afforded by Humphrey's appointment without reference to the Senate has since been multiplied many times, as witness the mission of A. Dudley Mann to Hanover and other German states in 1846, of the same gentleman to Hungary in 1849, of Nicholas Trist to Mexico in 1848, of Commodore Perry to Japan in 1852, of J.H. Blount to Hawaii in 1893.[280] The last named case is perhaps the extremest of all. Blount, who was appointed while the Senate was in session but without its advice and consent, was given "paramount authority" over the American resident minister at Hawaii and was further empowered to employ the military and naval forces of the United States, if necessary to protect American lives and interests. His mission raised a vigorous storm of protest in the Senate, but the majority report of the committee which was created to investigate the constitutional question vindicated the President in the following terms: "A question has been made as to the right of the President of the United States to dispatch Mr. Blount to Hawaii as his personal representative for the purpose of seeking the further information which the President believed was necessary in order to arrive at a just conclusion regarding the state of affairs in Hawaii. Many precedents could be quoted to show that such power has been exercised by the President on various occasions, without dissent on the part of Congress or the people of the United States. * * * These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents, * * *"[281] For recent decades the continued vitality of the practice is attested by such names as Colonel House, late Norman H. Davis, who filled the role of "ambassador at large" for a succession of administrations of both parties, and Professor Philip Jessup, Mr. Averell Harriman, and other "ambassadors at large" of the Truman administration. How is this practice to be squared with the express words of the Constitution? Apparently, by stressing the fact that such appointments or designations are ordinarily merely temporary and for special tasks, and hence do not fulfill the tests of "office" in the strict sense. (_See_ p. 445). In the same way the not infrequent practice of Presidents of appointing Members of Congress as commissioners to negotiate treaties and agreements with foreign governments may be regularized, notwithstanding the provision of article I, section 6, clause 2 of the Constitution, which provides that "no Senator or Representative shall, * * *, be appointed to any civil Office under the Authority of the United States, which shall have been created," during his term; and no officer of the United States, "shall be a Member of either House during his Continuance in Office."[282] The Treaty of Peace with Spain, the treaty to settle the Behring Sea controversy, the treaty establishing the boundary line between Canada and Alaska, were negotiated by commissions containing Senators and Representatives. CONGRESSIONAL REGULATION OF OFFICES That the Constitution distinguishes between the creation of an office and appointment thereto for the generality of national offices has never been questioned. The former is _by law_, and takes place by virtue of Congress's power to pass all laws necessary and proper for carrying into execution the powers which the Constitution confers upon the government of the United States and its departments and officers. As incidental to the establishment of an office Congress has also the power to determine the qualifications of the officer, and in so-doing necessarily limits the range of choice of the appointing power. First and last, it has laid down a great variety of qualifications, depending on citizenship, residence, professional attainments, occupational experience, age, race, property, sound habits, and so on. It has required that appointees be representative of a political party, of an industry, of a geographic region, or of a particular branch of the Government. It has confined the President's selection to a small number of persons to be named by others.[283] Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power.[284] CONDUCT IN OFFICE Furthermore, Congress has very broad powers in regulating the conduct in office of officers and employees of the United States, especially regarding their political activities. By an act passed in 1876 it prohibited "all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate, * * * from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes."[285] The validity of this measure having been sustained,[286] the substance of it, with some elaborations, was incorporated in the Civil Service Act of 1883.[287] By the Hatch Act[288] all persons in the executive branch of the Government, or any department or agency thereof, except the President and Vice President and certain "policy determining" officers, are forbidden to "take an active part in political management or political campaigns," although they are still permitted to "express their opinions on all political subjects and candidates." In the United Public Workers _v._ Mitchell[289] these provisions were upheld as "reasonable" against objections based on Amendments I, V, IX, and X. THE LOYALTY ISSUE By section 9A of the Hatch Act of 1939, it is made "* * * unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any act of Congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States."[290] In support of this provision the 79th Congress in its second session incorporated in its appropriation acts a series of clauses which forbid the use of any of the funds appropriated to pay the salary of any person who advocates, or belongs to an organization which advocates, the overthrow of the Government by force; or any person who strikes, or who belongs to an organization of Government employees which asserts the right to strike against the Government.[291] The apparent intention of this proviso is to lay down a rule by which the appointing and disbursing authorities will be bound. Since Congress has the conceded power to lay down the qualifications of officers and employees of the United States; and since few people would contend that officers or employees of the National Government have a constitutional right to advocate its overthrow or to strike against it, the above proviso would seem to be entirely constitutional. President Truman's "Loyalty Order"--Executive Order 9835--of March 21, 1947[292] is an outgrowth in part of this legislation. LEGISLATION INCREASING DUTIES OF AN OFFICER Finally, Congress may devolve upon one already in office additional duties which are germane to his office without thereby "rendering it necessary that the incumbent should be again nominated and appointed." Such legislation does not constitute an attempt by Congress to seize the appointing power.[293] "INFERIOR OFFICERS"; "EMPLOYEES" Except the President and the Vice President all persons in the civil service of the National Government are appointive, and fall into one of three categories, those who are appointed by the President, "by and with the advice and consent of the Senate"; inferior officers, whose appointment Congress has vested by law "in the President alone, in the courts of law, or in the heads of departments"; and employees, a term which is here used in a peculiar sense. Ordinarily it denotes one who stands in a contractual relationship to his employer, but here it signifies all subordinate officials of the National Government receiving their appointments at the hands of officials who are not specifically recognized by the Constitution as capable of being vested by Congress with the appointing power.[294] Inferior officers are usually officers intended to be subordinate to those in whom their appointment is vested;[295] but the requirement is by no means absolute.[296] STAGES OF APPOINTMENT PROCESS Nomination The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the "nomination" of the candidate by the President alone; the second is the assent of the Senate to the candidate's "appointment"; and the third is the final appointment and commissioning of the appointee, by the President.[297] Senate Approval The fact that the power of nomination belongs to the President alone prevents the Senate from attaching conditions to its approval of an appointment, such as it may do to its approval of a treaty. In the words of an early opinion of the Attorney General: "The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President's nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limitations to the President, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualification or alteration."[298] This view is borne out by early opinion[299] as well as by the record of practice under the Constitution. When Senate Consent Is Complete Early in January, 1931 the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action the Senate invoked a long-standing rule permitting a motion to reconsider a resolution confirming a nomination within "the next two days of actual executive session of the Senate" and the recall of the notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the President responded with a refusal, saying: "I cannot admit the power in the Senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination." The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the District Attorney of the District of Columbia to institute _quo warranto_ proceedings in the Supreme Court of the District. In United States _v._ Smith[300] the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate's initial consent and notification to the President. In 1939 the late President Roosevelt rejected a similar demand by the Senate, action which was not challenged.[301] Section 3. The President * * * shall Commission all the Officers of the United States. Commissioning the Officer This, as applied in practice, does not mean that he is under constitutional obligation to commission those whose appointments have reached that stage, but merely that it is he and no one else who has the power to commission them, which he may do at his discretion. The sealing and delivery of the commission is, on the other hand, by the doctrine of Marbury _v._ Madison, in the case both of appointees by the President and Senate and by the President alone, a purely ministerial act which has been lodged by statute with the Secretary of State and the performance of which may be compelled by mandamus unless the appointee has been in the meantime validly removed.[302] By an opinion of the Attorney General many years later, however, the President, even after he has signed a commission, still has a _locus poenitentiae_ and may withhold it; nor is the appointee in office till he has his commission.[303] This is probably the correct doctrine.[304] Clause 3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. RECESS APPOINTMENTS Setting out from the proposition that the very nature of the executive power requires that it shall always be "in capacity for action," Attorneys General early came to interpret "happen" to mean "happen to exist," and long continued practice securely establishes this construction. It results that whenever a vacancy may have occurred in the first instance, or for whatever reason, if it still continues after the Senate has ceased to sit and so cannot be consulted, the President may fill it in the way described.[305] But a Senate "recess" does not include holiday or temporary adjournments,[306] while by an act of Congress, if the vacancy existed when the Senate was in session, the _ad interim_ appointee may receive no salary until he has been confirmed by the Senate.[307] _AD INTERIM_ DESIGNATIONS To be distinguished from the power to make recess appointments is the power of the President to make temporary or _ad interim_ designations of officials to perform the duties of other absent officials. Usually such a situation is provided for in advance by a statute which designates the inferior officer who is to act in place of his immediate superior. But in the lack of such provision both theory and practice concede the President the power to make the designation.[308] THE REMOVAL POWER; THE MYERS CASE Save for the provision which it makes for a power of impeachment of "civil officers of the United States," the Constitution contains no reference to a power to remove from office; and until its decision in Myers _v._ United States,[309] October 25, 1926 the Supreme Court had contrived to side-step every occasion for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers case was the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first class postmaster, in face of the following provision of an act of Congress passed in 1876: "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law."[310] A divided Court, speaking through Chief Justice Taft, held the order of removal valid, and the statutory provision just quoted void. The Chief Justice's main reliance was on the so-called "decision of 1789," the reference being to Congress's course that year in inserting in the act establishing the Department of State a proviso which was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by Madison, who invoked in support of it the opening words of article II and the President's duty to "take care that the laws be faithfully executed." Succeeding passages of the Chief Justice's opinion erect on this basis a highly selective account of doctrine and practice regarding the removal power down to the Civil War which was held to yield the following results: "That article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers--a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate's power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed."[311] The holding in the Myers case boils down to the proposition that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated with the exception of judges of the United States. The motivation of the holding was not, it may be assumed, any ambition on the Chief Justice's part to set history aright--or awry.[312] Rather it was the concern which he voiced in the following passage in his opinion: "There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him."[313] Thus spoke the former President Taft, and the result of his prepossession was a rule which, as was immediately pointed out, exposed the so-called "independent agencies," the Interstate Commerce Commission, the Federal Trade Commission, and the like, to Presidential domination. "The Nature of the Office" Concept Unfortunately, the Chief Justice, while professing to follow Madison's leadership had omitted to weigh properly the very important observation which the latter had made at the time regarding the office of Comptroller of the Treasury. "The Committee," said Madison, "has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are not purely of an executive nature. It seems to me that they partake of a judiciary quality as well as executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government."[314] In Humphrey _v._ United States,[315] decided in 1935, the Court seized upon "the nature of the office" concept and applied it as a much needed corrective to the Myers holding. The Humphrey Case The material element of this case was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt that he was "removed" from office, the reason being their divergent views of public policy. In due course Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: "A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the _Myers_ Case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. * * * It goes no farther;--much less does it include an officer who occupies no place in the executive department and who exercise no part of the executive power vested by the Constitution in the President. "The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute * * * Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. * * * We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will. * * * "The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail, over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the _Myers_ decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute."[316] Other Phases of Presidential Removal Power Congress may "limit and restrict the power of removal as it deems best for the public interests" in the case of inferior officers.[317] But in the absence of specific legislative provision to the contrary, the President may remove at his discretion an inferior officer whose term is limited by statute,[318] or one appointed with the consent of the Senate.[319] He may remove an officer of the army or navy at any time by nominating to the Senate the officer's successor, provided the Senate approves the nomination.[320] In 1940 the President was sustained in removing Dr. E.A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation of charges which he had levelled at his fellow directors.[321] Although no such cause of removal by the President is stated in the act creating TVA, the President's action, being reasonably required to promote the smooth functioning of TVA, was within his duty to "take care that the laws be faithfully executed." So interpreted, it did not violate the principle of administrative independence set forth in Humphrey _v._ United States.[322] THE PRESIDENTIAL AEGIS Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them[323] or pressing litigation in their behalf,[324] refusing a call for papers from one of the Houses of Congress which might be used, in their absence from the seat of government, to their disadvantage,[325] challenging the constitutional validity of legislation which he deemed detrimental to their interests.[326] There is one matter, moreover, as to which he is able to spread his own official immunity to them. The courts may not require the divulging of confidential communications from or to the President, that is, communications which they choose to regard as confidential.[327] Whether a Congressional Committee of inquiry would be similarly powerless is an interesting question which has not been adjudicated.[328] Thus far such issues between the two departments have been adjusted politically. Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and * * * Legislative Role of the President The above clause, which imposes a duty rather than confers a power, is the formal basis of the President's legislative leadership, which has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. Especially is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress.[329] It is true that certain pre-Civil War Presidents, mostly of Whig extraction, professed to entertain nice scruples on the score of "usurping" legislative powers;[330] but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imitators.[331] Today there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld.[332] The President has frequently summoned both Houses into "extra" or "special sessions" for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised. The Right of Reception SCOPE OF THE POWER "Ambassadors and other public ministers" embraces not only "all possible diplomatic agents which any foreign power may accredit to the United States"[333] but also, as a practical construction of the Constitution, all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President.[334] The power to "receive" ambassadors, etc., includes, moreover, the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.[335] Furthermore, this power makes the President the sole mouthpiece of the nation in its dealings with other nations. A PRESIDENTIAL MONOPOLY Wrote Jefferson in 1790: "The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly."[336] So when Citizen Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that "as the President was the only channel of communication between the United States and foreign nations, it was from him alone 'that foreign nations or their agents are to learn what is or has been the will of the nation;' that whatever he communicated as such, they had a right and were bound to consider 'as the expression of the nation;' and that no foreign agent could be 'allowed to question it,' or 'to interpose between him and any other branch of government, under the pretext of either's transgressing their functions.' Mr. Jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the President under the Constitution to admit or exclude foreign agents. 'I inform you of the fact,' he said, 'by authority from the President.' Mr. Jefferson therefore returned the consul's commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed."[337] "THE LOGAN ACT" When in 1798 a Philadelphia Quaker named Logan went to Paris on his own to undertake a negotiation with the French Government with a view to averting war between France and the United States his enterprise stimulated Congress to pass "An Act to Prevent Usurpation of Executive Functions,"[338] which, "more honored in the breach than the observance," still survives on the statute books.[339] The year following John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the 27th article of the Jay Treaty, instead of leaving the business to the courts. He said: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him."[340] Ninety-nine years later a Senate Foreign Relations Committee took occasion to reiterate Marshall's doctrine with elaboration.[341] A FORMAL OR A FORMATIVE POWER? In his attack, instigated by Jefferson, upon Washington's Proclamation of Neutrality in 1793, at the outbreak of war between France and Great Britain, Madison advanced the argument that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power "to declare war," and in support of this proposition he disparaged the Presidential function of reception, in the following words: "I shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, _almost_ grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it."[342] THE PRESIDENT'S DIPLOMATIC ROLE Hamilton, although he had expressed substantially the same view in The Federalist regarding the power of reception,[343] adopted a very different conception of it in defense of Washington's proclamation. Writing over the pseudonym "Pacificus," he said: "The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is _acknowledged_, the treaties between the nations, so far at least as regards _public_ rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution, creates a _concurrent_ authority in the cases to which it relates."[344] JEFFERSON'S REAL POSITION Nor did Jefferson himself officially support Madison's point of view, as the following extract from his "minutes of a Conversation," which took place July 10, 1793, between himself and Citizen Genet, show: "He asked if they [Congress] were not the sovereign. I told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. 'But,' said he, 'at least, Congress are bound to see that the treaties are observed.' I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. 'If he decides against the treaty, to whom is a nation to appeal?' I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea."[345] THE POWER OF RECOGNITION In his endeavor in 1793 to minimize the importance of the President's power of reception Madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting State have the right along with the possession. He said: "This belongs to the nation, and to the nation alone, on whom the government operates. * * * It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. Such are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the United States; and certainly not to be brought by any torture of words, within the right to receive ambassadors."[346] Hamilton, with the case of Genet before him, had taken the contrary position, which history has ratified. In consequence of his power to receive and dispatch diplomatic agents, but more especially the former, the President possesses the power to recognize new States, communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power to decline recognition, and thereby decline diplomatic relations with such new States or governments. The affirmative precedents down to 1906 are succinctly summarized by John Bassett Moore in his famous Digest, as follows: "In the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility."[347] The Case of Cuba The question of Congress's right also to recognize new states was prominently raised in connection with Cuba's final and successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the whole subject and came to the following conclusions as to this power: "The 'recognition' of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the Government thus recognized, or by receiving a public minister therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the President alone. The next step, that of sending a public minister to the nation thus recognized, is primarily the act of the President. The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in 'executive session.' The legislative branch of the Government can exercise no influence over this step except, very indirectly, by withholding appropriations. * * * Nor can the legislative branch of the Government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties. Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a nullity. * * * Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct. That it is correct * * * [is] shown by the opinions of jurists and statesmen of the past."[348] Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898 against Spain. For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end and the President himself had appealed to Congress to provide a solution for the Cuban situation. In response Congress was about to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare.[349] The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively Presidential act. THE POWER OF NONRECOGNITION The potentialities of nonrecognition were conspicuously illustrated by President Woodrow Wilson when he refused, early in 1913, to recognize Provisional President Huerta as the _de facto_ government of Mexico, thereby contributing materially to Huerta's downfall the year following. At the same time Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence; and while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. The refusal of the Hoover Administration to recognize the independence of the Japanese puppet state of Manchukuo early in 1932 was based on kindred grounds. Nonrecognition of the Chinese Communist government by the Truman administration has proved to be a decisive element of the current (1952) foreign policy of the United States. PRESIDENT AND CONGRESS The relations of President and Congress in the diplomatic field have, first and, last, presented a varied picture of alternate cooperation and tension,[350] from which emerge two outstanding facts: first, the overwhelming importance of Presidential initiative in this area of power; secondly, the ever increasing dependence of foreign policy on Congressional cooperation and support. First one and then the other aspect of the relationship is uppermost. Thus the United Nations Participation Act of December 20, 1945 appeared to contemplate cooperation between the President and Congress in the carrying out of the duties of the United States to back up decisions of the Security Council involving the use of armed force.[351] When, nevertheless, the first occasion arose such action, namely, to repel the invasion in June, 1950 of South Korea by North Korean forces, no such agreement had been negotiated, and the intervention of the United States was authorized by the President without referring the question to Congress.[352] CONGRESSIONAL IMPLEMENTATION OF PRESIDENTIAL POLICIES No President was ever more jealous of his prerogative in the realm of foreign relations than President Woodrow Wilson. When, however, strong pressure was brought to bear upon him by Great Britain respecting his Mexican Policy he was constrained to go before Congress and ask for a modification of the Panama Tolls Act of 1911, which had also aroused British ire. Addressing Congress, he said "I ask this of you in support of the foreign policy of the Administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure."[353] The fact is, of course, that Congress has enormous powers the support of which is indispensable to any foreign policy. In the long run Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although it does not direct them, that pledges the public credit, that declares war, that defines offenses against the law of nations, that regulates foreign commerce; and it has the further power "to make all laws which shall be necessary and proper"--that is, which _it_ deems to be such--for carrying into execution not only its own powers but all the powers "of the government of the United States and of any department or officer thereof." Moreover, its laws made "in pursuance" of these powers are "supreme law of the land" and the President is bound constitutionally to "take care that" they "be faithfully executed." In point of fact, Congressional legislation has operated to augment Presidential powers in the foreign field much more frequently than it has to curtail them. The Lend-Lease Act of March 11, 1941[354] is the classic example, although it only brought to culmination a whole series of enactments with which Congress had aided and abetted the administration's foreign policy in the years between 1934 and 1941.[355] THE DOCTRINE OF POLITICAL QUESTIONS It is not within the province of the courts to inquire into the policy underlying action taken by the "political departments"--Congress and the President--in the exercise of their conceded powers. This commonplace maxim is, however, sometimes given an enlarged application so as to embrace questions as to the existence of facts and even questions of law which the Court would normally regard as falling within its jurisdiction. Such questions are termed "political questions," and are especially common in the field of foreign relations. The leading case is Foster _v._ Neilson,[356] where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, involved with which question was the further one whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States. Chief Justice Marshall held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He said: "If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature."[357] The doctrine thus clearly stated is further exemplified, with particular reference to Presidential action, by Williams _v._ The Suffolk Insurance Company.[358] In this case the underwriters of a vessel which had been confiscated by the Argentine Government for catching seals off the Falkland Islands contrary to that government's orders sought to escape liability by showing that the Argentinian government was the sovereign over these islands and that, accordingly, the vessel had been condemned for wilful disregard of legitimate authority. The Court decided against the company on the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. It said: "Can there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the Union. If this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one of these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character."[359] Thus the right to determine the boundaries of the country is a political function;[360] as is also the right to determine what country is sovereign of a particular region;[361] to determine whether a community is entitled under International Law to be considered a belligerent or an independent state;[362] to determine whether the other party has duly ratified a treaty;[363] to determine who is the _de jure_ or _de facto_ ruler of a country;[364] to determine whether a particular person is a duly accredited diplomatic agent to the United States;[365] to determine how long a military occupation shall continue in fulfillment of the terms of a treaty;[366] to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent.[367] Recent Statements of the Doctrine The assumption underlying the refusal of courts to intervene in such cases is well stated in the recent case of Chicago & S. Airlines _v._ Waterman Steamship Corp.[368] Here the Court refused to review orders of the Civil Aeronautics Board granting or denying applications by citizen carriers to engage in overseas and foreign air transportation which by the terms of the Civil Aeronautics Act[369] are subject to approval by the President and therefore impliedly beyond those provisions of the act authorizing judicial review of board orders.[370] Elaborating on the necessity of judicial abstinence in the conduct of foreign relations, Justice Jackson declared for the Court: "The President, both as Commander in Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit _in camera_ in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution on the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry."[371] To the same effect are the Court's holding and opinion in Ludecke _v._ Watkins,[372] where the question at issue was the power of the President to order the deportation under the Alien Enemy Act of 1798 of a German alien enemy after the cessation of hostilities with Germany. Said Justice Frankfurter for the Court: "War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. * * * The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility."[373] The President as Law Enforcer TYPES OF EXECUTIVE POWER The Constitution does not say that the President shall execute the laws, but that "he shall take care that the laws be faithfully executed," i.e., by others, who are commonly, but not always with strict accuracy, termed his subordinates. What powers are implied from this duty? In this connection five categories of executive power should be distinguished: first, there is that executive power which the Constitution confers directly upon the President by the opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of the powers which acts of Congress at any particular time confer upon the President; thirdly, there is the sum total of discretionary powers which acts of Congress at any particular time confer upon heads of departments and other executive ("administrative") agencies of the National Government; fourthly, there is the power which stems from the duty to enforce the criminal statutes of the United States; finally, there are so-called "ministerial duties" which admit of no discretion as to the occasion or the manner of their discharge. Three principal questions arise: first, how does the President exercise the powers which the Constitution or the statutes confer upon him; second, in what relation does he stand by virtue of the "take care" clause to the powers of other executive, or administrative agencies; third, in what relation does he stand to the enforcement of the criminal laws of the United States? HOW THE PRESIDENT'S OWN POWERS ARE EXERCISED Whereas the British monarch is constitutionally under the necessity of acting always through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In the words of an opinion by Attorney General Cushing in 1855: "It may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offences against the United States, * * * So he, and he alone, is the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. That is a power constitutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President."[374] Moreover, the obligation to act personally may be sometimes enlarged by statute, as, for example, by the act organizing the President with other designated officials into "an Establishment by name of the Smithsonian Institute."[375] Here, says the Attorney General, "the President's name of office is _designatio personae_." He is also of opinion that expenditures from the "secret service" fund in order to be valid, must be vouched for by the President personally.[376] On like grounds the Supreme Court once held void a decree of a court martial, because, though it has been confirmed by the Secretary of War, it was not specifically stated to have received the sanction of the President as required by the 65th Article of War.[377] This case has, however, been virtually overruled, and at any rate such cases are exceptional.[378] The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the President's acts.[379] In Williams _v._ United States[380] was involved an act of Congress, which prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction by the President.[381] The Supreme Court held that the act did not require the personal performance by the President of this duty. Such a practice, said the Court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. The President's duty in general requires his superintendence of the administration; yet he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform.[382] As a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the President, do not even refer to the President.[383] POWER AND DUTY OF THE PRESIDENT IN RELATION TO SUBORDINATE EXECUTIVE OFFICERS Suppose, that the law casts a duty upon a head of department _eo nomine_, does the President thereupon become entitled by virtue of his duty to "take care that the laws be faithfully executed," to substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power Madison argued that it ought to be attributed to the President alone because it was "the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department"; and this responsibility, he held, carried with it the power to "inspect and control" the conduct of subordinate executive officers. "Vest," said he, "the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good."[384] But this was said with respect to the office of Secretary of State; and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this officer was to be an arm of certain of Congress's own powers, and should therefore be protected against the removal power.[385] (_See_ p. 458). And in Marbury _v._ Madison,[386] Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a "Department of Foreign Affairs" and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the "political field," and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was "an officer of the law" and "amenable to the law for his conduct."[387] ADMINISTRATIVE DECENTRALIZATION VERSUS JACKSONIAN CENTRALISM An opinion rendered by Attorney General Wirt in 1823 asserted the proposition that the President's duty under the "take care" clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecution.[388] The opinion entirely overlooked the important question of the location of the power to interpret the law which is inevitably involved in any effort to enforce it. The diametrically opposed theory that Congress is unable to vest any head of an executive department, even within the field of Congress's specifically delegated powers, with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President Jackson's Protest Message of April 15, 1834,[389] defending his removal of Duane as Secretary of the Treasury, on account of the latter's refusal to remove the deposits from the Bank of the United States. Here it is asserted "that the entire executive power is vested in the President"; that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the Secretary of the Treasury was such an officer; that the custody of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates: that in the performance of these duties the Secretary was subject to the supervision and control of the President: and finally that the act establishing the Bank of the United States "did not, as it could not change the relation between the President and Secretary--did not release the former from his obligation to see the law faithfully executed nor the latter from the President's supervision and control."[390] In short, the President's removal power, in this case unqualified, was the sanction provided by the Constitution for his power and duty to control his "subordinates" in all their official actions of public consequence. CONGRESSIONAL POWER VERSUS PRESIDENTIAL DUTY TO THE LAW Five years later the case of Kendall _v._ United States[391] arose. The United States owed one Stokes money, and when Postmaster General Kendall, at Jackson's instigation, refused to pay it, Congress passed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. While Kendall _v._ United States, like Marbury _v._ Madison, involved the question of the responsibility of a head of department for the performance of a _ministerial_ duty, the discussion by counsel before the Court and the Court's own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower court had asserted that the duty of the President under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law, and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and Story having to do with the President's power in the field of foreign relations. The Court rejected the implication with emphasis. There are, it pointed out, "certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character."[392] In short, the Court recognized the underlying question of the case to be whether the President's duty to "take care that the laws be faithfully executed" made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President; and it answered this in the negative. MYERS CASE VERSUS HUMPHREY CASE How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court's decisions in the Myers and Humphrey cases respectively.[393] The former decision is still valid to support the President's right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Constitution; also all officials--usually heads of departments--through whom he exercises powers conferred upon him by statute. The Humphrey decision assures to Congress the right to protect the tenure, and hence the freedom of decision of all officials upon whom, in the exercise of its delegated powers, it confers duties of a "quasi-legislative" or a "quasi-judicial" nature. The former may be described as duties for the satisfactory discharge of which Congress justifiably feels that a specialized and informed judgment is requisite. The latter are duties the discharge of which closely touches private rights and which ought therefore be accompanied or preceded by a "quasi-judicial" inquiry capable of affording the claimants of such rights the opportunity to be heard. In neither case is the President entitled to force his reading of the law upon the officer, but only to take care that the latter exercise his powers according to his own best lights. POWER OF THE PRESIDENT TO GUIDE ENFORCEMENT OF THE PENAL LAW This matter also came to a head in "the reign of Andrew Jackson," preceding, and indeed foreshadowing, the Duane episode by some months. "At that epoch," Wyman relates in his Principles of Administrative Law, "the first announcement of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter--The Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels * * * were stolen from the Princess by one Polari, and were seized by the officers of the United States Customs in the hands of the thief. Representations were made to the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written by Taney, then Attorney-General; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it--I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continue a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President."[394] THE PRESIDENT AS LAW INTERPRETER The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all Presidential regulations and orders based on statutes which vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Court's reading of such statutes or of the Constitution,[395] but he sometimes makes law in a more special sense. In the famous Neagle case[396] an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life had been threatened by a suitor was attributed to the President and held to be "a law of the United States" in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of _habeas corpus_ transferring the said marshal, who had "got his man," from State to national custody. Speaking for the Court, Justice Miller inquired: "Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their _express terms_, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?"[397] Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption which is borne out by numerous precedents. And in United States _v._ Midwest Oil Company[398] it was ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and nonmineral, from private acquisition, Congress having never repudiated the practice. MILITARY POWER IN LAW ENFORCEMENT: THE POSSE COMITATUS "Whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be lawful for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed."[399] This provision of the United States Code consolidates a course of legislation which began at the time of the Whiskey Rebellion of 1792.[400] In Martin _v._ Mott,[401] which arose out of the War of 1812, it was held that the authority to decide whether the exigency has arisen belongs exclusively to the President.[402] Even before that time, Jefferson had in 1808, in the course of his efforts to enforce the Embargo Acts, issued a proclamation ordering "all officers having authority, civil or military, who shall be found in the vicinity" of an unruly combination to aid and assist "by all means in their power, by force of arms and otherwise" the suppression of such combination.[403] Forty-six years later Attorney General Cushing advised President Pierce that in enforcing the Fugitive Slave Act of 1850, marshals of the United States, had authority when opposed by unlawful combinations, to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both State militia and United States officers, soldiers, sailors, and marines,[404] a doctrine which Pierce himself improved upon two years later by asserting, with reference to the civil war then raging in Kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be used as a portion of the _posse comitatus_. Lincoln's call of April 15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson's conception of a _posse comitatus_ subject to Presidential call.[405] The provision above extracted from the United States Code ratifies this conception as regards the State militias and the national forces. SUSPENSION OF HABEAS CORPUS BY THE PRESIDENT _See_ Article I, Section 9, clause 2, pp. 312-315. PREVENTIVE MARTIAL LAW The question of executive power in the presence of civil disorder is dealt with in modern terms in Moyer _v._ Peabody,[406] decided in 1909, to which the Debs Case,[407] decided in 1895, may be regarded as an addendum. Moyer, a labor leader, brought suit against Peabody, for having ordered his arrest during a labor dispute which occurred while Peabody was governor of Colorado. Speaking for a unanimous Court, one Justice being absent, Justice Holmes said: "Of course the plaintiff's position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. It varies with the subject matter and the necessities of the situation. * * * The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him. * * * In such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State. * * * That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief. * * * When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process."[408] THE DEBS CASE The Debs case of 1895 arose out of a railway strike which had caused the President to dispatch troops to Chicago the previous year. Coincidently with this move, the United States district attorney stationed there, acting upon orders from Washington, obtained an injunction from the United States circuit court forbidding the strike on account of its interference with the mails and with interstate commerce. The question before the Supreme Court was whether this injunction, for violation of which Debs has been jailed for contempt of court, had been granted with jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the ground that the Government was entitled thus to protect its property in the mails, and on a much broader ground which is stated in the following passage of Justice Brewer's opinion for the Court: "Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. * * * While it is not the province of the Government to interfere in any mere matter of private controversy between individuals, or to use its granted powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties."[409] STATUS OF THE DEBS CASE TODAY The restrictions imposed by the Norris-LaGuardia Act[410] on the issuance of injunctions by the federal courts in cases "involving or growing out of any labor dispute" later cast a shadow of doubt over the Debs case, which was deepened, if anything, by the Court's decision in 1947, in United States _v._ United Mine Workers.[411] But such doubts have been since dispelled by the Taft-Hartley Act, which provides that whenever in his opinion a threatened or actual strike or lockout affecting the whole or a substantial part of an industry engaged in interstate commerce will, "if permitted to occur or continue, imperil the national health or safety," the President may appoint a board of inquiry and, upon its so finding, "may direct the Attorney General to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or lockout or the continuing thereof * * *," and the Court shall have jurisdiction to do so, provided it shares the President's view of the situation.[412] Administration and labor critics of the act did not challenge the constitutionality of this provision. They questioned its necessity in view of the President's "inherent powers" in the face of emergency.[413] THE PRESIDENT'S DUTY IN CASES OF DOMESTIC VIOLENCE IN THE STATES _See_ Art. IV, sec. 4, p. 705. THE PRESIDENT AS EXECUTIVE OF THE LAW OF NATIONS Illustrative of the President's duty to discharge the responsibilities of the United States at International Law with a view to avoiding difficulties with other governments, was the action of President Wilson in closing the Marconi Wireless Station at Siasconset, Massachusetts on the outbreak of the European War in 1914, the company having refused assurance that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Gregory said: "The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army and the Navy. * * * If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be, endangered by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. * * * I do not hesitate, in view of the extraordinary conditions existing, to advise that the President, through the Secretary of the Navy or any appropriate department, close down, or take charge of and operate, the plant * * *, should he deem it necessary in securing obedience to his proclamation of neutrality."[414] PROTECTION OF AMERICAN RIGHTS OF PERSON AND PROPERTY ABROAD The right of the President to use force in vindication of American rights of person and property abroad was demonstrated in 1854 by the bombardment of Greytown, Nicaragua by Lieutenant Hollins of the U.S.S. Cyane, in default of reparation from the local authorities for an attack by a mob on the United States consul at that place. Upon his return to the United States Hollins was sued in a federal court by one Durand for the value of certain property which was alleged to have been destroyed in the bombardment. His defense was based upon the orders of the President and Secretary of the Navy, and was sustained by Justice Nelson, then on circuit, in the following words: "As the Executive head of the nation, the President is made the only legitimate organ of the General Government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, the citizens abroad must look for protection of person and of property, and for the faithful execution of the laws existing and intended for their protection. For this purpose, the whole Executive power of the country is placed in his hands, under the Constitution, and the laws passed in pursuance thereof; and different Departments of government have been organized, through which this power may be most conveniently executed, whether by negotiation or by force--a Department of State and a Department of the Navy. "Now, as it respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not unfrequently, require the most prompt and decided action. Under our system of Government, the citizen abroad is as much entitled to protection as the citizen at home. The great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving."[415] PRESIDENTIAL WORLD POLICING In his little volume on World Policing and the Constitution[416] Mr. James Grafton Rogers lists 149 episodes similar to the Greytown affair, stretching between the undeclared war with France in 1798 and Pearl Harbor. While inviting some pruning, the list demonstrates beyond peradventure the existence in the President, as Chief Executive and Commander in Chief, of power to judge whether a situation requires the use of available forces to protect American rights of person and property outside the United States and to take action in harmony with his decision. Such employment of the forces have, it is true, been usually justifiable acts of self defense rather than acts of war, but the countries where they occurred were entitled to treat them as acts of war nevertheless, although they have generally been too feeble to assert their prerogative in this respect, and have sometimes actually chosen to turn the other cheek. Thus when in 1900 President McKinley, without consulting Congress, contributed a sizable contingent to the joint forces that went to the relief of the foreign legations in Peking, the Chinese Imperial Government agreed that this action had not constituted war.[417] The Atlantic Pact Article V of the Atlantic Pact builds on such precedents. The novel feature is its enlarged conception of defensible American interests abroad. In the words of the published abstract of the Report of the Committee on Foreign Relations on the Pact, "Article 5 records what is a fact, namely, that an armed attack within the meaning of the treaty would in the present-day world constitute an attack upon the entire community comprising the parties to the treaty, including the United States. Accordingly, the President and the Congress, each within their sphere of assigned constitutional responsibilities, would be expected to take all action necessary and appropriate to protect the United States against the consequences and dangers of an armed attack committed against any party to the treaty."[418] But from the very nature of things, the discharge of this obligation against overt force will ordinarily rest with the President in the first instance, just as has the discharge in the past of the like obligation in the protection of American rights abroad. Furthermore, in the discharge of this obligation the President will ordinarily be required to use force and perform acts of war. Such is the verdict of history, a verdict which was foreseen more or less definitely by the framers themselves.[419] PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS: THE STEEL SEIZURE CASE Facts[420] To avert a nation-wide strike of steel workers which he believed would jeopardize the national defense, President Truman, on April 8th, 1952, issued Executive Order 10340[421] directing the Secretary of Commerce to seize and operate most of the steel mills of the country. The Order cited no specific statutory authorization, but invoked generally the powers vested in the President by the Constitution and laws of the United States. Secretary Sawyer forthwith issued an order seizing the mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress, conceding Congress's power to supersede his Order; but Congress failed to do anything about the matter either then or a fortnight later, when the President again brought up the subject in a special message.[422] It had in fact provided other methods of dealing with such situations, in the elaboration of which it had declined repeatedly to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a federal district court, praying for a declaratory judgment and injunctive relief. The district court issued a preliminary injunction, which the court of appeals stayed.[423] On certiorari to the court of appeals, the district court's order was affirmed by the Supreme Court by a vote of six justices to three. Justice Black delivered the opinion of the Court in which Justices Frankfurter, Douglas, Jackson, and Burton formally concurred. Justice Clark expressly limited his concurrence to the judgment of the Court. All these Justices presented what are termed "concurring" opinions. The Chief Justice, speaking for himself and Justices Reed and Minton, presented a dissenting opinion. The Doctrine of the Opinion of the Court The chief points urged in the Black opinion are the following: There was no statute which expressly or impliedly authorized the President to take possession of the property involved. On the contrary, in its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. Authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the President's executive powers under Article II of the Constitution; nor was the Order maintainable as an exercise of the President's powers as Commander in Chief of the Armed Forces. The power sought to be exercised was the lawmaking power, which the Constitution vests in the Congress alone. Even if it were true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress was not thereby divested of its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof."[424] The Factual Record The pivotal proposition of the opinion is, in brief, that inasmuch as Congress could have ordered the seizure of the steel mills, the President had no power to do so without prior congressional authorization. To support this position no proof is offered in the way of past opinion, and the following extract from Justice Clark's opinion presents a formidable challenge to it: "One of this Court's first pronouncements upon the powers of the President under the Constitution was made by Mr. Chief Justice John Marshall some one hundred and fifty years ago. In Little _v._ Barreme,[425] he used this characteristically clear language in discussing the power of the President to instruct the seizure of the _Flying Fish_, a vessel bound from a French port: 'It is by no means clear that the president of the United States whose high duty it is to "take care that the laws be faithfully executed," and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.' Accordingly, a unanimous Court held that the President's instructions had been issued without authority and that they could not 'legalize an act which without those instructions would have been a plain trespass.' I know of no subsequent holding of this Court to the contrary."[426] Another field which the President and Congress have each occupied at different times is extradition. In 1799 President Adams, in order to execute the extradition provisions of the Jay Treaty, issued a warrant for the arrest of one Jonathan Robbins. As Chief Justice Vinson recites in his opinion: "This action was challenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. John Marshall, then a member of the House of Representatives, in the course of his successful defense of the President's action, said: 'Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to execute the contract by any means it possesses.'"[427] In 1848 Congress enacted a statute governing this subject which confers upon the courts, both State and Federal, the duty of handling extradition cases.[428] The first Neutrality Proclamation was issued by President Washington in 1793 without congressional authorization.[429] The following year Congress enacted the first neutrality statute,[430] and since then proclamations of neutrality have been based on an act of Congress governing the matter. The President may, in the absence of legislation by Congress, control the landing of foreign cables in the United States and the passage of foreign troops through American territory, and has done so repeatedly.[431] Likewise, until Congress acts, he may govern conquered territory[432] and, "in the absence of attempts by Congress to limit his power," may set up military commissions in territory occupied by the armed forces of the United States.[433] He may determine, in a way to bind the courts, whether a treaty is still in force as law of the land, although again the final power in the field rests with Congress.[434] One of the President's most ordinary powers and duties is that of ordering the prosecution of supposed offenders against the laws of the United States. Yet Congress may do the same thing.[435] On September 22, 1862, President Lincoln issued a proclamation suspending the privilege of the writ of habeas corpus throughout the Union in certain classes of cases. By an act passed March 3, 1863, Congress ratified this action of the President and at the same time brought the whole subject of military arrests in the United States under legal control.[436] Conversely, when President Wilson failed in March 1917 to obtain Congress's consent to his arming American merchant vessels with defensive arms, he went ahead and did it anyway, "fortified not only by the known sentiments of the majority in Congress but also by the advice of his Secretary of State and Attorney General."[437] On the specific matter of property seizures, Justice Frankfurter's concurring opinion in the Youngstown Case is accompanied by appendices containing a synoptic analysis of legislation authorizing seizures of industrial property and also a summary of seizures of industrial plants and facilities by Presidents without definite statutory warrant. Eighteen such statutes are listed, all but the first of which were enacted between 1916 and 1951. Of presidential seizures unsupported by reference to specific statutory authorization, he lists eight as occurring during World War I. To justify these it was deemed sufficient to refer to "the Constitution and laws" generally. For the World War II period he lists eleven seizures in justification of which no statutory authority was cited. The first of these was the seizure of the North American Aviation, Inc., of Englewood, California. In support of this action Attorney General Jackson, as Chief Justice Vinson points out in his dissenting opinion, "vigorously proclaimed that the President had the moral duty to keep this nation's defense effort a 'going concern.'"[438] Said the then Attorney General, "The Presidential proclamation rests upon the aggregate of the Presidential powers derived from the Constitution itself and from statutes enacted by the Congress. The Constitution lays upon the President the duty 'to take care that the laws be faithfully executed.' Among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect Government property, to protect those who are engaged in carrying out the business of the Government, and to carry out the provisions of the Lend-Lease Act. For the faithful execution of such laws the President has back of him not only each general law-enforcement power conferred by the various acts of Congress but the aggregate of all such laws plus that wide discretion as to method vested in him by the Constitution for the purpose of executing the laws."[439] In the War Labor Disputes Act of June 25, 1943,[440] such seizures were put on a statutory basis. As the Chief Justice points out, the purpose of this measure, as stated by its sponsor, was not to augment presidential power but to "let the country know that the Congress is squarely behind the President."[441] In United States _v._ Pewee Coal Company, Inc.[442] the Court had before it the claim of a coal mine operator whose property was seized by the President without statutory authorization, "to avert a nation-wide strike of miners." The company brought an action in the Court of Claims to recover under the Fifth Amendment for the total operating losses sustained during the period in which this property was operated by the United States. The Court awarded judgment for $2,241.46 and the Supreme Court sustained this judgment, a result which implied the validity of the seizure.[443] Said Justice Reed, in his concurring opinion of the case: "The relatively new technique of temporary taking by eminent domain is a most useful administrative device: many properties, such as laundries, or coal mines, or railroads, may be subjected to public operation only for a short time to meet war or emergency needs, and can then be returned to their owners." The implications of United States _v._ Pewee Coal Company, Inc.,[444] clearly sustained the Government in Youngstown, assuming that Congress had not acted in the latter case. And one instance of seizure by executive order Justice Frankfurter fails to mention. This was the seizure by President Wilson in the late summer of 1914, following the outbreak of war in Europe, of the Marconi Wireless Station at Siasconset when the Company refused assurance that it would comply with naval censorship regulations. Attorney General Gregory's justification of this action at the time was quoted on an earlier page.[445] The doctrine dictated by the above considerations as regards the exercise of executive power in the field of legislative power was well stated by Mr. John W. Davis, principal counsel on the present occasion for the steel companies, in a brief which he filed nearly forty years ago as Solicitor General, in defense of the action of the President in withdrawing certain lands from public entry although his doing so was at the time contrary to express statute. "Ours," the brief reads, "is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395; in re Debs, 158 U.S. 564, 578.) 'Its means are adequate to its ends' (McCulloch _v._ Maryland, 4 Wheat. 316, 424), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the _subjects_ concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no sense is he the agent of Congress. He obeys and executes the laws of Congress, not because Congress is enthroned in authority over him, but because the Constitution directs him to do so. Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts."[446] Concurring Opinions Justice Frankfurter begins the material part of his opinion with the statement: "We must * * * put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given."[447] He then enters upon a review of the proceedings of Congress which attended the enactment of the Taft-Hartley Act, and concludes that "Congress has expressed its will to withhold this power [of seizure] from the President as though it had said so in so many words."[448] Justice Douglas's contribution consists in the argument that: "The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected. That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment."[449] This contention overlooks such cases as Mitchell _v._ Harmony;[450] United States _v._ Russell;[451] Portsmouth Harbor Land and Hotel Co. _v._ United States;[452] and United States _v._ Pewee Coal Co.;[453] in all of which a right of compensation was recognized to exist in consequence of damage to property which resulted from acts stemming ultimately from constitutional powers of the President. In United States _v._ Pink,[454] Justice Douglas quotes with approval the following words from the Federalist,[455] "all constitutional acts of power, whether in the executive or in the judicial branch, have as much validity and obligation as if they proceeded from the legislature." If this is so as to treaty obligations, then all the more must it be true of obligations which are based directly on the Constitution.[456] Justice Jackson's opinion contains little that is of direct pertinence to the constitutional issue. Important, however, is his contention, which, seems to align him with Justice Frankfurter, that Congress had "not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure"; from which he concludes that "* * * we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress."[457] The opinion concludes: "In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction. * * * But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that 'The tools belong to the man who can use them.' We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."[458] Justice Burton, referring to the Taft-Hartley Act, says: "* * * the most significant feature of that Act is its omission of authority to seize," citing debate on the measure.[459] "In the case before us, Congress authorized a procedure which the President declined to follow."[460] Justice Clark bases his position directly upon Chief Justice Marshall's opinion in Little _v._ Barreme.[461] He says: "I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow these procedures in meeting the crisis; * * * I cannot sustain the seizure in question because here, as in Little _v._ Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand."[462] His reference is to the Taft-Hartley Act. At the same time he endorses the view, "taught me not only by the decision of Chief Justice Marshall in Little _v._ Barreme, but also by a score of other pronouncements of distinguished members of this bench," that "the Constitution does grant to the President extensive authority in times of grave and imperative national emergency."[463] Dissenting Opinion Chief Justice Vinson launched his opinion of dissent, for himself and Justices Reed and Minton, with a survey of the elements of the emergency which confronted the President: the Korean war; the obligations of the United States under the United Nations Charter and the Atlantic Pact; the appropriations acts by which Congress has voted vast sums to be expended in our defense and that of our Allies in Europe; the fact that steel is a basic constituent of war matériel. He reproaches the Court for giving no consideration to these things, although no one had ventured to challenge the President's finding of an emergency on the basis of them.[464] He asks whether the steel seizure, considering the emergency involved, fits into the picture of presidential emergency action in the past and musters impressive evidence to show that it does. And "plaintiffs admit," he asserts, more questionably, "that the emergency procedures of Taft-Hartley are not mandatory."[465] He concludes as follows: "The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court. The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President, must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President's finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law."[466] Evaluation; Presidential Emergency Power The doctrine of "the opinion of the Court" is that, if Congress can do it under, say, the necessary and proper clause, then the President, lacking authority from Congress, cannot do it on the justification that an emergency requires it. Although four Justices are recorded as concurring in the opinion, their accompanying opinions whittle their concurrence in some instances to the vanishing point. Justice Douglas's supplementary argument on the basis of Amendment V logically confines the doctrine of the opinion to executive seizures of property. Justices Frankfurter and Burton and, less clearly, Justice Jackson insist in effect that Congress had exercised its power in the premises of the case in opposition to seizure. Justice Clark, on the basis of Chief Justice Marshall's opinion in Little _v._ Barreme, holds unambiguously that, Congress having entered the field, its evident intention to rule out seizures supplied the law of the case. That the President does possess a residual of resultant power above, or in consequence of, his granted powers to deal with emergencies in the absence of restrictive legislation is explicitly asserted by Justice Clark, and impliedly held, with certain qualifications, by Justice Frankfurter and, again less clearly, by Justice Jackson; and is the essence of the position of the three dissenting Justices. Finally, the entire Court would in all probability agree to the proposition that any action of the President touching the internal economy of the country for which the justification of emergency is pleaded is always subject to revision and disallowance by the legislative power. It would seem to follow that whenever the President so acts on his own initiative he should at once report his action to Congress, and thenceforth bring the full powers of his office to the support of the desires of the Houses once these are clearly indicated. PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION By the decision of the Court in State of Mississippi _v._ Johnson,[467] in 1867, the President was put beyond the reach of judicial direction in the exercise of any of his powers, whether constitutional or statutory, political or otherwise. An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stanbery as follows: "It is not upon any peculiar immunity that the individual has who happens to be President; upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as is the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court or the jurisdiction of any court to bring him to account as President. There is only one court or _quasi_ court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal but one that sits in another chamber of this Capitol."[468] Speaking by Chief Justice Chase, the Court agreed: "The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would [not?] the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?"[469] The Court further indicated that the same principle would apply to an application for a mandamus ordering the President to exercise any of his powers. THE PRESIDENT'S SUBORDINATES AND THE COURTS But while the courts are unable to compel the President to act or to keep him from acting, yet his acts, when performed are in proper cases subject to judicial review and disallowance.[470] Moreover, the subordinates through whom he acts may always be prohibited by writ of injunction from doing a threatened illegal act which might lead to irreparable damage,[471] or be compelled by writ of mandamus to perform a duty definitely required by law,[472] such suits being usually brought in the United States District Court for the District of Columbia.[473] Also, by common law principles, a subordinate executive officer is personally liable under the ordinary law for any act done in excess of authority.[474] Indeed, by a recent holding, district courts of the United States are bound to entertain suits for damages arising out of alleged violation of plaintiff's constitutional rights, even though as the law now stands the Court is powerless to award damages.[475] But Congress may, in certain cases, exonerate the officer by a so-called act of indemnity,[476] while as the law stands at present, any officer of the United States who is charged with a crime under the laws of a State for an act done under the authority of the United States is entitled to have his case transferred to the national courts.[477] Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Impeachment "CIVIL OFFICER" A Member of Congress is not a civil officer within the meaning of this section; nor is a private citizen subject to impeachment;[478] but resignation of an officer does not give immunity from impeachment for acts committed while in office.[479] "HIGH CRIMES AND MISDEMEANORS" Most of the States have drafted their constitutional provisions on this subject in similar language. As there is no enumeration of offenses comprised under the last two categories, no little difficulty has been experienced in defining offenses in such a way that they fall within the meaning of the constitutional provisions. But impeachable offenses were not defined in England, and it was not the intention that the Constitution should attempt an enumeration of crimes or offenses for which an impeachment would lie. Treason and bribery have always been offenses whose nature was clearly understood. Other high crimes and misdemeanors which might be made causes for the impeachment of civil officers were those which embraced any misbehavior while in office. Madison, whose objection led to the insertion of the more definite phrase high crimes and misdemeanors, was the strongest advocate of a broad construction of the impeachment power. He argued that incapacity, negligence, or perfidy of the Chief Magistrate should be ground for impeachment.[480] Again, in discussing the President's power of removal, he maintained that the wanton removal from office of meritorious officers would be an act of maladministration, and would render the President liable to impeachment.[481] Hamilton thought the proceeding could "never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of the courts in favor of personal security."[482] THE CHASE IMPEACHMENT The above relatively flexible conception of "high crimes and misdemeanors" was, however, early replaced by a much more rigid one in consequence of Jefferson's efforts to diminish the importance of the Supreme Court, the first step in which enterprise was the impeachment in 1805 of Justice Samuel Chase. The theory of Chase's enemies was given its extremest expression by Jefferson's henchman, Senator Giles of Virginia, as follows: "Impeachment is nothing more than an enquiry, by the two Houses of Congress, whether the office of any public man might not be better filled by another. * * * The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate; * * * A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him. * * * [but] was nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. _We want your offices_, for the purpose of giving them to men who will fill them better."[483] To this theory Chase's counsel opposed the proposition that "high crimes and misdemeanors" meant offenses indictable at common law; and Chase's acquittal went far to affix this reading to the phrase till after the War between the States. THE JOHNSON IMPEACHMENT But with the impeachment of President Johnson in 1867 for "high crimes and misdemeanors," the controversy was revived. Representative Bingham, leader of the House Managers of the impeachment, defined an impeachable offense as follows: "An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose."[484] Former Justice Benjamin R. Curtis stated the position of the defense in these words: "My first position is, that when the Constitution speaks of 'treason, bribery, and other high crimes and misdemeanors,' it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment."[485] LATER IMPEACHMENTS With Johnson's acquittal, the narrow view of "high crimes and misdemeanors" appeared again to win out. Two successful impeachments of lower federal judges in recent years have, however, restored something like the broader conception of the term which Madison and Hamilton had endorsed. In 1913 Judge Archbald of the Commerce Court was removed from office by the impeachment process, and disqualified to hold and enjoy any office of honor, profit or trust under the Constitution, for soliciting for himself and friends valuable favors from railroad companies some of which were at the time litigants in his court, although it was conceded that in so doing he had not committed an indictable offense;[486] and in 1936 Judge Ritter of the Florida district court was similarly removed for conduct in relation to a receivership case which evoked serious doubts as to his integrity, although on the specific charges against him he was acquitted.[487] It is probable that in both these instances the final result was influenced by the consideration that judges of the United States hold office during "good behavior" and that the impeachment process is the only method indicated by the Constitution for determining whether a judge's behavior has been "good." In other words, as to judges of the United States at least lack of "good behavior" and "high crimes and misdemeanors" are overlapping if not precisely coincidental concepts.[488] Notes [1] As is pointed out by Hamilton in The Federalist No. 69. [2] Charles C. Thach, The Creation of the Presidency, 1775-1789 (Baltimore, 1922), 36-37. [3] Ibid. 109. [4] Max Farrand, Records, II, 185. [5] Ibid. II, 572 (September 10), 597. [6] Annals of Congress 383 ff. [7] Ibid. 396-397; 481-482. For a thorough-going review and evaluation of this debate, _see_ James Hart, The American Presidency in Action, 152-214 (New York, 1948). [8] Works of Alexander Hamilton, VII, 76, 80-81 (J.C. Hamilton, ed., New York, 1851). Hamilton was here simply interpreting the executive power clause in light of the views of Blackstone, Locke, and Montesquieu as to the location of power in the conduct of foreign relations. _See_ Edward S. Corwin, The President, Office and Powers (3d ed.), 459-460. For a parallel argument to Hamilton's respecting "the judicial power of the United States," article 1, section 1, clause 1, _see_ Justice Brewer's opinion in Kansas _v._ Colorado, 206 U.S. 46, 82 (1907). [9] Myers _v._ United States, 272 U.S. 52 (1926). [10] Ibid. 118. [11] 299 U.S. 304 (1936). [12] Ibid. 315-316, 318. _See also_ Ibid. 319 citing U.S. Senate Reports, Committee on Foreign Relations, vol. 8, p. 24 (February 15, 1816). [13] Ibid. 327, citing Panama Refining Co. _v._ Ryan, 293 U.S. 388, 421-422 (1935). [14] In Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952) the doctrine is advanced that the President has no power in the field of Congress' legislative powers except such as are delegated him by Congress. This doctrine is considered below in the light of previous practice and adjudication. _See_ pp. 489-499. [15] _See_ e.g., Abel Upshur, A Brief Inquiry Into the True Nature and Character of Our Federal Government (1840), 116-117. [16] The Federalist No. 67, 503. [17] James Hart, The American Presidency in Action (New York, 1918), 28-43. [18] 2 Dall. 400 (1790). [19] Messages and Papers of the Presidents, I, 56. [20] Corwin, The President, Office and Powers (3d ed.), 377-378, 434-435, 446, 465, 484. "The executive [branch of the government], possessing the rights of self-government from nature, cannot be controlled in the exercise of them but by a law, passed in the forms of the Constitution." Thomas Jefferson, Official Opinion (1790) 5 Ford, ed. 209 (New York, 1892-1899). "In times of peace the people look most to their representatives; but in war, to the Executive solely." Letter to Caesar A. Rodney, (1810) Monticello, 9 Ford, ed. 272. [21] Corwin 20-21, and citations. [22] Ibid. 21-22, and citations. [23] Ibid. 22-24. [24] Ibid. 386. _See also_ ibid. 281. [25] Ford, The Rise and Growth of American Politics (New York, 1914), 293. [26] As to the meaning of "the fourth day of March", _see_ Charles Warren, Political Practice and the Constitution, 89 Univ. of Pa. L. Rev. (June, 1941) 1003-1025. [27] On the anti-third term tradition, _see_ Corwin, The President, Office and Powers (3d ed.), 43-49, 388-392. [28] McPherson _v._ Blacker, 146 U.S. 1, 27 (1892). [29] Ibid. 28-29. [30] Max Farrand, II, 97. [31] In re Green, 134 U.S. 377, 379-380 (1890). [32] United States _v._ Hartwell, 6 Wall. 385, 393 (1868). [33] Hawke _v._ Smith, 253 U.S. 221 (1920). [34] Burroughs _v._ United States, 290 U.S. 534, 545 (1934). [35] Ex parte Yarbrough, 110 U.S. 651 (1884). [36] Burroughs _v._ United States, 290 U.S. 534 (1934). [37] Ibid. 546. During the recent war, Congress laid claim in the act of September 16, 1942, to the power "in time of war" to secure to every member of the armed forces the right to vote for Members of Congress and Presidential Electors notwithstanding any provisions of State law relating to the registration of qualified voters or any poll tax requirement under State law. The constitutional validity of this act was open to serious question and by the act of April 1, 1944 was abandoned. The latter act established a War Ballot Commission which was directed to prepare an adequate number of official war ballots, whereby the service men would be enabled in certain contingencies to vote for Members of Congress and Presidential Electors; but the validity of such ballots was left to be determined by State election officials under State laws. 50 (App.) U.S.C.A. §§ 301-302, 331, 341. [38] 343 U.S. 214 (1952). [39] _See_ pp. 942-944. [40] 1 Stat. 239. [41] 3 U.S.C. § 23. [42] 3 U.S.C. § 21. [43] Public Law 199, 80th Cong., 1st sess. By section 202 (a) of Public Law 253 of the 80th Cong., 1st sess., approved July 26, 1947, that is, eight days after Public Law 199, the "Secretary of War" and the "Secretary of the Navy" were stricken from the line of succession and the "Secretary of Defense" whose office Public Law 253 created, was inserted instead. [44] _Cf._ 13 Op. Atty. Gen. 161 (1869), holding that a specific tax by the United States upon the salary of an officer, to be deducted from the amount which otherwise would by law be payable as such salary, is a diminution of the compensation to be paid to him, which, in the case of the President of the United States, would be unconstitutional if the act of Congress levying the tax was passed during his official term. [45] The Federalist No. 69, 513, 515. [46] Story's Commentaries, II, § 1492. [47] Fleming _v._ Page, 9 How. 603, 615, 618 (1850). [48] Ex parte Milligan, 4 Wall. 2, 139 (1866). [49] 1 Stat. 424 (1795); 2 Stat. 443 (1807). _See also_ Martin _v._ Mott, 12 Wheat. 19, 32-33 (1827), asserting the finality of the President's judgment of the existence of a state of facts requiring his exercise of the powers conferred by the act of 1795. [50] Messages and Papers of the Presidents, VII, 3221. [51] 2 Bl. 635 (1863). [52] Messages and Papers of the Presidents, VII, 3215, 3216, 3481. [53] 2 Bl. at 668-670. [54] 12 Stat. 326 (1861). [55] James G. Randall, Constitutional Problems under Lincoln, 118-139 (New York, 1926). [56] _See_ the Government's brief in United States _v._ Montgomery Ward and Co., 150 F. 2d 369 (1945). [57] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 327 (1936). [58] _See_ White House Digest of Provisions of Law Which Would Become Operative upon Proclamation of a National Emergency by the President. The Digest is dated December 11, 1950. It was released to the press on December 16th. [59] 56 Stat. 23. [60] Cong. Rec. 77th Cong., 2d sess., vol. 88, pt. 5, p. 7044 (September 7, 1942). [61] 50 U.S.C.A. War, App. 1651. For Emergency War Agencies that were functioning at any particular time, consult the _United States Government Manual_ of the approximate date. The executive order creating an agency is cited by number. For a Chronological List of Wartime Agencies (including government corporations) and some account of their creation down to the close of 1942, _see_ chapter on War Powers and Their Administration by Dean Arthur T. Vanderbilt in 1942 Annual Survey of American Law (New York University School of Law, 1945), pp. 106-231. At the close of the war there were 29 agencies grouped under OEM, of which OCD, WMC, and OC were the first to fold up. At the same date there were 101 separate government corporations, engaged variously in production, transportation, power-generation, banking and lending, housing, insurance, merchandising, and other lines of business and enjoying the independence of autonomous republics, being subject to neither Congressional nor presidential scrutiny, nor to audit by the General Accounting Office. [62] 143 F. 2d. 145 (1944). [63] _See_ Corwin, The President, Office and Powers (3d ed.) 296, 492. [64] Exec. Order 9066, 7 Fed. Reg. 1407. [65] 56 Stat. 173. [66] Hirabayashi _v._ United States, 320 U.S. 81, 91-92 (1943). [67] Korematsu _v._ United States, 323 U.S. 214 (1944). [68] New York Times, June 10, 1941. [69] 7 Fed. Reg. 237. [70] 57 Stat. 163. [71] "During the course of the year [1945] the President directed the seizure of many of the nation's industries in the course of labor disputes. The total number of facilities taken over is significant: two railroad systems, one public utility, nine industrial companies, the transportation systems of two cities, the motor carriers in one city, a towing company and a butadiene plant. In addition thereto the President on April 10 seized 218 bituminous coal mines belonging to 162 companies and on May 7, 33 more bituminous mines of 24 additional companies. The anthracite coal industry fared no better; on May 3 and May 7 all the mines of 365 companies and operators were taken away from the owners, and on October 6 the President ordered the seizure of 54 plants and pipe lines of 29 petroleum producing companies in addition to four taken over prior thereto. "During the year disputes between railroad companies and the Brotherhoods resulted in the establishment of twelve Railroad Emergency Boards to investigate disputes and to report to the President. The President also established on October 9 a Railway Express Emergency Board to investigate the dispute between the Railway Express and a union. "To implement the directives of the National War Labor Board, the Office of Economic Stabilization directed the cancellation of all priority applications, allocation applications and outstanding priorities and allocations in the cases of three clothing companies and one transportation system which refused to comply with orders of the National War Labor Board." Arthur T. Vanderbilt, War Powers and their Administration, 1945, Annual Survey of American Law (New York University School of Law), pp. 271-273. [72] 8 Fed. Reg. 11463. [73] 56 Stat. 23. [74] 322 U.S. 398 (1944). [75] Ibid. 405-406. [76] _See_ Corwin, The President, Office and Powers (3d ed.) 302-303. [77] Charles Fairman, The Law of Martial Rule (Chicago, 1930), 20-22. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (7th ed.), 283-287. [78] Dicey, Introduction to the Study of the Law of the Constitution, Chap. VIII, 262-271. [79] 7 How. 1 (1849). _See also_ Martin _v._ Mott, 12 Wheat. 19, 32-33 (1827). [80] 2 Bl. 635 (1863). [81] 4 Wall. 2 (1866). [82] Ibid. 127. [83] Ibid. 139-140. In Ex parte Vallandigham the Court had held while war was still flagrant that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the Army, commanding a military department. 1 Wall. 243 (1864). [84] 31 Stat. 141, 153. [85] Duncan _v._ Kahanamoku, 327 U.S. 304 (1946). [86] Ibid. 324. [87] Ibid. 336. [88] Ibid. 343. [89] Ex parte Quirin, 317 U.S. 1 (1942). [90] 317 U.S. 1, 29-30, 35 (1942). [91] Ibid. 1, 41-42. [92] Ibid. 28-29. [93] 1 Stat. 577 (1798). [94] 327 U.S. 1 (1946). [95] Ibid. 81. [96] _See_ Leo Gross, The Criminality of Aggressive War, 41 American Political Science Review (April, 1947), 205-235. [97] Fleming _v._ Page, 9 How. 603, 615 (1850). [98] Madsen _v._ Kinsella, 343 U.S. 341, 348 (1952). _See also_ Johnson _v._ Eisentrager, 339 U.S. 703, 789 (1950). [99] Totten _v._ United States, 92 U.S. 105 (1876). [100] Hamilton _v._ Dillin, 21 Wall. 73 (1875); Haver _v._ Yaker, 9 Wall. 32 (1869). [101] Mitchell _v._ Harmony, 13 How. 115 (1852); United States _v._ Russell, 13 Wall. 623 (1871); Totten _v._ United States, note 3 above; [Transcriber's Note: Reference is to Footnote 99, above.] 40 Op. Atty. Gen. 251-253 (1942). [102] _Cf._ the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris; and President Wilson's Fourteen Points, which were incorporated in the Armistice of November 11, 1918. [103] Fleming _v._ Page, 9 How. 603, 615 (1850). [104] Santiago _v._ Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, _see_ Dooley _v._ United States, 182 U.S. 222, 230-231 (1901). [105] Swaim _v._ United States, 165 U.S. 553 (1897); and cases there reviewed. _See also_ Givens _v._ Zerbst, 255 U.S. 11 (1921). [106] 15 Op. Atty. Gen. 297 and note; 30 ibid. 303; _cf._ 1 ibid. 233, 234, where the contrary view is stated by Attorney General Wirt. [107] Ex parte Quirin, 317 U.S. 1, 28-29 (1942). [108] General Orders, No. 100, Official Records, War of Rebellion, ser. III, vol. III; April 24, 1863. [109] _See_ e.g., Mimmack _v._ United States, 97 U.S. 426, 437 (1878); United States _v._ Corson, 114 U.S. 619 (1885). [110] 10 U.S.C. § 1590. [111] Mullan _v._ United States, 140 U.S. 240 (1891); Wallace _v._ United States, 257 U.S. 541 (1922). [112] Surrogate's Court, Dutchess County, New York, ruling July 25, 1950 that the estate of Franklin D. Roosevelt was not entitled to tax benefits under sections 421 and 939 of the Internal Revenue Code, which extends certain tax benefits to persons dying in the military service of the United States. New York Times, July 26, 1950, p. 27, col. 1. [113] Farrand, I, 70, 97, 110; II, 285, 328, 335-337, 367, 537-542 (_passim_). [114] Heads of Executive Departments except the Postmaster General have no fixed legal terms. For the history of legislation on the subject. _See_ 36 Op. Atty. Gen. 12-16 (April 18, 1929); _also_ Everett S. Brown, The Tenure of Cabinet Officers, 42 American Political Science Review 529-532 (June, 1948). [115] _See_ Corwin, The President, Office and Powers (3d ed.), New York University Press, 1948, 21-22, 74, 98-99, 257, 358-364, 372-373, 378-381, 516-519. The only question of a constitutional nature that has arisen concerning the Cabinet meeting is as to its right to meet, on the call of the Secretary of State, in the President's absence. Ibid. 402. [116] United States _v._ Wilson, 7 Pet. 150, 160-161 (1833). [117] 236 U.S. 79, 86 (1915). [118] Ibid. 90-91. [119] Armstrong _v._ United States, 13 Wall. 154, 156 (1872). In Brown _v._ Walker, 161 U.S. 591 (1896), the Court had said: "It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed." Ibid. 599, citing British cases. [120] Biddle _v._ Perovich, 274 U.S. 480, 486 (1927). [121] _Cf._ W.H. Humbert, The Pardoning Power of the President, American Council on Public Affairs (Washington, 1941) 73. [122] 274 U.S. at 486. [123] 23 Op. Atty. Gen. 363 (1901); Illinois Central R. Co. _v._ Bosworth, 133 U.S. 92 (1890). [124] Ex parte Wells, 18 How. 307 (1856). For the contrary view _see_ some early opinions of Attorney General, 1 Opins. Atty. Gen. 342 (1820); 2 ibid. 275 (1829); 5 ibid. 687 (1795); _cf._ 4 ibid. 453; United States _v._ Wilson, 7 Pet. 150, 161 (1833). [125] Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however, (within the same term of court) by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement of the pardoning power. United States _v._ Benz, 282 U.S. 304 (1931). [126] _See_ Messages and Papers of the Presidents, I, 181, 303; II, 543; VII, 3414, 3508; VIII, 3853; XIV, 6690. [127] United States _v._ Klein, 13 Wall. 128, 147 (1872). _See also_ United States _v._ Padelford, 9 Wall. 531 (1870). [128] Ex parte Garland, 4 Wall. 333, 380 (1867). [129] F.W. Maitland, Constitutional History of England (Cambridge, 1903), 302-306; 1 Op. Atty. Gen. 342 (1820). [130] 267 U.S. 87 (1925). [131] Ibid. 110-111. [132] Ibid. 121, 122. [133] 4 Wall. 333, 381 (1867). [134] Ibid. 380. [135] Ibid. 396-397. [136] 233 U.S. 51 (1914). [137] Ibid. 59. [138] 142 U.S. 450 (1892). [139] Knote _v._ United States, 95 U.S. 149, 153-154 (1877). [140] United States _v._ Klein, 13 Wall. 128, 143, 148 (1872). [141] The Laura, 114 U.S. 411 (1885). [142] Brown _v._ Walker, 161 U.S. 591 (1896). [143] Farrand, II, 183. [144] Ibid. 538-539. [145] The Federalist No. 64. [146] Farrand, III, 424. [147] Washington sought to use the Senate as a council, but the effort proved futile, principally because the Senate balked. For the details _see_ Corwin, The President, Office and Powers (3d ed.), 253-257. [148] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). [149] Corwin, The President, Office and Powers (3d ed.), 467-468. [150] "Obviously the treaty must contain the whole contract between the parties, and the power of the Senate is limited to a ratification of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratifications conditional upon the adoption of amendments to the treaty." Fourteen Diamond Rings _v._ United States, 183 U.S. 176, 183 (1901). [151] _Cf._ Article I, section 5, clause 1; _also_ Missouri Pacific R. Co. _v._ Kansas, 248 U.S. 276, 283-284 (1919). [152] _See_ Samuel Crandall, Treaties, Their Making and Enforcement (2d ed., Washington, 1916), § 53, for instances. [153] Foster _v._ Neilson, 2 Pet. 253, 314 (1829). "Though several writers on the subject of government place that [the treaty-making] power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose, or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are _contracts_ with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive." Hamilton in The Federalist No. 75. [154] Head Money Cases, 112 U.S. 589, 598 (1884). For treaty provisions operative as "law of the land" ("self-executing"), _see_ Crandall, Treaties (2d ed.), 36-42, 49-62 (_passim_), 151, 153-163, 179, 238-239, 286, 321, 338, 345-346. For treaty provisions of an "executory" character, _see_ ibid. 162-163, 232, 236, 238, 493, 497, 532, 570, 589. [155] _See_ Crandall, Chap. III, 24-42. [156] 3 Dall. 199 (1796). [157] 3 Cr. 454 (1806). [158] "In Chirac _v._ Chirac (2 Wheat. 259), it was held by this court that a treaty with France gave to her citizens the right to purchase and hold land in the United States, removed the incapacity of alienage and placed them in precisely the same situation as if they had been citizens of this country. The State law was hardly adverted to, and seems not to have been considered a factor of any importance in this view of the case. The same doctrine was reaffirmed touching this treaty in Carneal _v._ Banks (10 Wheat. 181) and with respect to the British Treaty of 1794, in Hughes _v._ Edwards (9 Wheat. 489). A treaty stipulation may be effectual to protect the land of an alien from forfeiture by escheat under the laws of a State. Orr _v._ Hodgson (4 Wheat. 458). By the British treaty of 1794, 'all impediment of alienage was absolutely levelled with the ground despite the laws of the States. It is the direct constitutional question in its fullest conditions. Yet the Supreme Court held that the stipulation was within the constitutional powers of the Union. Fairfax's Devisees _v._ Hunter's Lessee, 7 Cr. 627; _see_ Ware _v._ Hylton, 3 Dall. 242.' 8 Op. Attys-Gen. 417. Mr. Calhoun, after laying down certain exceptions and qualifications which do not affect this case, says: 'Within these limits all questions which may arise between us and other powers, be the subject-matter what it may, fall within the treaty-making power and may be adjusted by it.' Treat. on the Const. and Gov. of the U.S. 204. "If the national government has not the power to do what is done by such treaties, it cannot be done at all, for the States are expressly forbidden to 'enter into any treaty, alliance, or confederation.' Const., art. I. sect. 10. "It must always be borne in mind that the Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and Constitution. This is a fundamental principle in our system of complex national polity." 100 U.S. at 489-490. [159] 100 U.S. 483 (1880). [160] _See also_ De Geofroy _v._ Riggs, 133 U.S. 258 (1890); Sullivan _v._ Kidd, 254 U.S. 433 (1921); Nielsen _v._ Johnson, 279 U.S. 47 (1929). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a State statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok _v._ Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a State statute which denied to a nonresident alien _wife_ of a person killed within the State, the right to sue for wrongful death, although such right was afforded to native resident _relatives_. Maiorano _v._ Baltimore & O.R. Co., 213 U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen's Compensation Act, compensation was expressly limited to resident parents; the Supreme Court held that it did not. Liberato _v._ Royer, 270 U.S. 535 (1926). [161] Terrace _v._ Thompson, 263 U.S. 197 (1923). [162] 332 U.S. 633 (1948). _See also_ Takahashi _v._ Fish and Game Comm., 334 U.S. 410 (1948), in which a California statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship is disallowed, both on the basis of Amendment XIV and on the ground that the statute invaded a field of power reserved to the National Government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the United States. For the latter proposition Hines _v._ Davidowitz, 312 U.S. 52, 66 (1941) was relied upon. [163] This occurred in the much advertised case of Sei Fujii _v._ State of California, 242 P. 2d, 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court was unanimous in rejecting this view. The Charter provisions invoked in this connection [Arts. 1, 55, and 56], said Chief Justice Gibson, "We are satisfied * * * were not intended to supersede domestic legislation". [164] Clark _v._ Allen, 331 U.S. 503 (1947). [165] 1 Cr. 103, 109 (1801). [166] Foster _v._ Neilson, 2 Pet. 253, 314 (1829); Strother _v._ Lucas, 12 Pet. 410, 439 (1838); Edye _v._ Robertson (Head Money Cases), 112 U.S. 580, 598, 599 (1884); United States _v._ Rauscher, 119 U.S. 407, 419 (1886); Bacardi Corp. _v._ Domenech, 311 U.S. 150 (1940). [167] The doctrine of political questions is not always strictly adhered to in cases of treaty interpretation. In the case of the "_Appam_" it was conspicuously departed from. This was a British merchant vessel which was captured by a German cruiser early in 1916 and brought by a German crew into Newport News, Virginia. The German Imperial Government claimed that under the Treaties of 1799 and 1828 between the United States and Prussia, the vessel was entitled to remain in American waters indefinitely. Secretary of State Lansing ruled against the claim, and the Supreme Court later did the same, but ostensibly on independent grounds and without reference to the attitude of the Department of State. The Steamship Appam, 243 U.S. 124 (1917). Although it is a principle of International Law that, as respects the rights of the signatory parties, a treaty is binding from the date of signature, a different rule applies in this country as to a treaty as "law of the land" and as such a source of human rights. Before a treaty can thus operate it must have been approved by the Senate. Haver _v._ Yaker, 9 Wall. 32 (1870). [168] _See_ Crandall, Treaties, Their Making and Enforcement, (2d ed.), 165-171, with citations. [169] Madison Writings (Hunt ed.), 264. [170] "We express no opinion as to whether Congress is bound to appropriate the money * * * It is not necessary to consider it in this case, as Congress made prompt appropriation of the money stipulated in the treaty" (the Treaty of Paris of 1899 between Spain and the United States). De Lima _v._ Bidwell, 182 U.S. 1, 198 (1901). For a list of earlier appropriations of the same kind, _see_ Crandall, 179-180, n. 35. [171] Willoughby, On the Constitution, I (2d ed., New York, 1929), 558. _See also_ H. Rept. 2630, 48th Cong., 2d sess., for an exhaustive review of the subject. [172] Edye _v._ Robertson (Head Money Cases), 112 U.S. 580, 598-599 (1884). The repealability of treaties by act of Congress was first asserted in an opinion of the Attorney General in 1854 (6 Op. Atty. Gen. 291). The year following the doctrine was adopted judicially in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United States circuit court in Taylor _v._ Morton, 23 Fed. Cas. No. 13,799 (1855). The case turned on the following question: "If an act of Congress should levy a duty upon imports, which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, does the former or the latter give the rule of decision in a judicial tribunal of the United States, in a case to which one rule or the other must be applied?" Citing the supremacy clause of the Constitution, Justice Curtis said: "There is nothing in the language of this clause which enables us to say, that in the case supposed, the treaty, and not the act of Congress, is to afford the rule. Ordinarily, treaties are not rules prescribed by sovereigns for the conduct of their subjects, but contracts, by which they agree to regulate their own conduct. This provision of our Constitution has made treaties part of our municipal law. But it has not assigned to them any particular degree of authority in our municipal law, nor declared whether laws so enacted shall or shall not be paramount to laws otherwise enacted. * * * [This] is solely a question of municipal, as distinguished from public law. The foreign sovereign between whom and the United States a treaty has been made, has a right to expect and require its stipulations to be kept with scrupulous good faith; but through what internal arrangements this shall be done, is, exclusively, for the consideration of the United States. Whether the treaty shall itself be the rule of action of the people as well as the government, whether the power to enforce and apply it shall reside in one department, or another, neither the treaty itself, nor any implication drawn from it, gives him any right to inquire. If the people of the United States were to repeal so much of their constitution as makes treaties part of their municipal law, no foreign sovereign with whom a treaty exists could justly complain, for it is not a matter with which he has any concern. * * * By the eighth section of the first article of the Constitution, power is conferred on Congress to regulate commerce with foreign nations, and to lay duties, and to make all laws necessary and proper for carrying those powers into execution. That the act now in question is within the legislative power of Congress, unless that power is controlled by the treaty, is not doubted. It must be admitted, also, that in general, power to legislate on a particular subject, includes power to modify and repeal existing laws on that subject, and either substitute new laws in their place, or leave the subject without regulation, in those particulars to which the repealed laws applied. There is therefore nothing in the mere fact that a treaty is a law, which would prevent Congress from repealing it. Unless it is for some reason distinguishable from other laws, the rule which it gives may be displaced by the legislative power, at its pleasure. * * * I think it is impossible to maintain that, under our Constitution, the President and Senate exclusively, possess the power to modify or repeal a law found in a treaty. If this were so, inasmuch as they can change or abrogate one treaty, only by making another inconsistent with the first, the government of the United States could not act at all, to that effect, without the consent of some foreign government; for no new treaty, affecting, in any manner, one already in existence, can be made without the concurrence of two parties, one of whom must be a foreign sovereign. That the Constitution was designed to place our country in this helpless condition, is a supposition wholly inadmissible. It is not only inconsistent with the necessities of a nation, but negatived by the express words of the Constitution. * * *" _See also_ The Cherokee Tobacco, 11 Wall. 616 (1871); United States _v._ Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller _v._ Dominguez, 130 U.S. 238 (1889); Chae Chan Ping _v._ United States, 130 U.S. 581, 600 (1889); Whitney _v._ Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting _v._ United States, 149 U.S. 688, 721 (1893); etc. "Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate." La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 460 (1899). _Cf._ Reichert _v._ Felps, 6 Wall. 160, 165-166 (1868), where it is stated obiter that "Congress is bound to regard the public treaties, and it had no power * * * to nullify [Indian] titles confirmed many years before * * *" [173] United States _v._ Schooner Peggy, 1 Cr. 103 (1801). [174] Foster _v._ Neilson, 2 Pet. 253 (1829). [175] United States _v._ Percheman, 7 Pet. 51 (1833). [176] Willoughby, On the Constitution, I, (2d ed.), 555. [177] 288 U.S. 102 (1933). [178] Ibid. 107-122. [179] 124 U.S. 190 (1888). [180] It is arguable that the maximum _leget posteriores_ is not the most eligible rule for determining conflicts between "laws of the United States * * * made in pursuance thereof" (i.e. of the Constitution) and "treaties made * * * under the authority of the United States". It may be that the former, being mentioned immediately after "this Constitution" and before "treaties," are entitled always to prevail over the latter, just as both acts of Congress and treaties yield to the Constitution. [181] 1 Stat. 578. [182] 4 Dall. 37 (1800). [183] Crandall, Treaties (2d ed.), 458; _See_ Messages and Papers of the Presidents, IV, 2245; and Benton, 15 Abridgment of the Debates of Congress, 478. Mangum of North Carolina denied that Congress could authorize the President to give notice: "He entertained not a particle of doubt that the question never could have been thrown upon Congress unless as a war or _quasi_ war measure. * * * Congress had no power of making or breaking a treaty." He owned, however, that he might appear singular in his view of the matter. Ibid. 472. [184] Crandall, 458-462; Wright, The Control of American Foreign Relations, 258. [185] 38 Stat. 1164. [186] Crandall, 460. [187] _See_ Jesse S. Reeves, The Jones Act and the Denunciation of Treaties, 15 American Journal of International Law (January, 1921) 33-38. Among other precedents which call into question the exclusive significance of the legislative role in the termination of treaties as international conventions is one mentioned by Mr. Taft: "In my administration the lower house passed a resolution directing the abrogation of the Russian Treaty of 1832, couched in terms which would have been most offensive to Russia, and it did this by a vote so nearly unanimous as to indicate that in the Senate, too, the same resolution would pass. It would have strained our relations with Russia in a way that seemed unwise. The treaty was an old one, and its construction had been constantly the subject of controversy between the two countries, and therefore, to obviate what I felt would produce unnecessary trouble in our foreign relations, I indicated to the Russian ambassador the situation, and advised him that I deemed it wise to abrogate the treaty, which, as President, I had the right to do by due notice couched in a friendly and courteous tone and accompanied by an invitation to begin negotiations for a new treaty. Having done this, I notified the Senate of the fact, and this enabled the wiser heads of the Senate to substitute for the house resolution a resolution approving my action, and in this way the passage of the dangerous resolution was avoided." The resolution in question, it should be added, was a joint resolution, and purported to ratify the President's action. The President himself had asked only for ratification and approval of his course by the Senate. William Howard Taft, The Presidency (New York, 1916), 112-114. Two other precedents bearing on outright abrogation of treaties are the following. The question whether to regard the extradition article of the Treaty of 1842 with Great Britain as void on account of certain acts of the British Government was laid before Congress by President Grant in a special message dated June 20, 1876, in the following terms: "It is for the wisdom of Congress to determine whether the article of the treaty relating to extradition is to be any longer regarded as obligatory on the Government of the United States or as forming part of the supreme law of the land. Should the attitude of the British Government remain unchanged, I shall not, without an expression of the wish of Congress that I should do so, take any action either in making or granting requisitions for the surrender of fugitive criminals under the treaty of 1842." Messages and Papers of the Presidents, IX, 4324, 4327. Three years later Congress passed a resolution requiring the President to abrogate articles V and VI of the Treaty of 1868 with China. President Hayes vetoed it, partly on the ground that "the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Constitution. * * *" At the same time, he also wrote: "The authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our Constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Constitution in Congress, but in the President, by and with the advice and consent of the Senate, as shown by the concurrence of two-thirds of that body." Ibid. 4470-4471. The veto would seem to have been based on a quibble. [188] 229 U.S. 447 (1913). [189] Ibid. 473-476. [190] Clark _v._ Allen, 331 U.S. 503 (1947). [191] Charlton _v._ Kelly, 229 U.S. 447 (1913). [192] Fed. Cas. No. 13,799 (1855). [193] 2 Pet. 253, 309 (1829). [194] Acts of March 2, 1829 and of February 24, 1855; 4 Stat. 359 and 10 Stat. 614. [195] In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are given. The supplementary legislation was later reenacted as Rev. Stat. §§ 4083-4091. [196] 18 U.S.C.A. §§ 3181-3195. [197] Baldwin _v._ Franks, 120 U.S. 678, 683 (1887). [198] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by Justice Story in his opinion for the Court in Prigg _v._ Pennsylvania, 16 Pet. 539 (1842), in the following words: "Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfil all the obligations of treaties." Ibid. 619. Story was here in quest of arguments to prove that Congress had power to enact a fugitive slave law, which he based on its power "to carry into effect rights expressly given and duties expressly enjoined" by the Constitution. Ibid. 618-619. But the treaty-making power is neither a right nor a duty, but one of the powers "vested by this Constitution in the Government of the United States." Article I, section 8, clause 18. [199] Geofroy _v._ Riggs, 133 U.S. 258 (1890). _See also_ Fort Leavenworth Railroad Co. _v._ Lowe, 114 U.S. 525, 541 (1885), which is cited in the Field opinion in support of the idea that no cession of any portion of a State's territory could be effected without the State's consent. The statement is the purest obiter. [200] Ibid. 267. [201] The majority of the cases, as was pointed out earlier, dealt with the competence of the treaty-making power to grant aliens the right to inherit real property contrary to State Law. The nearest the Court ever came to lending countenance to the State Rights argument in this connection was in Frederickson _v._ Louisiana, 23 How. 445 (1860). _See_ ibid. 448. [202] 252 U.S. 416 (1920). [203] Ibid. 433-434. [204] Ibid. 435. [205] 299 U.S. 304 (1936). [206] Ibid. 318. "The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein." In re Ross, 140 U.S. 453, 463 (1891). [207] Jefferson excepted out of the treaty-making power the delegated powers of Congress, though just what he meant by this exception is uncertain. He may have meant that no international agreement could be constitutionally entered into by the United States within the sphere of such powers, or only that treaty-provisions dealing with matters which are also subject to the legislative power of Congress must, in order to become law of the land, receive the assent of Congress. The latter interpretation, however, does not state a limitation on the power of making treaties in the sense of international conventions, but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them, while the former interpretation has been contradicted in practice from the outset. Various other limitations to the treaty-making power have been suggested from time to time. Thus, it has been contended that the territory of a State of the Union could not be ceded without such State's consent, _see above_; also, that while foreign territory can be annexed to the United States by the treaty-making power, it could not be incorporated with the United States except with the consent of Congress; also, that while the treaty-making power can consent to the United States being sued for damages in an international tribunal for an alleged incorrect decision of a court of the United States, it could not consent to an appeal being taken from one of its courts to an international tribunal. The first of these alleged limitations may be dismissed as resting on the unallowable idea that the United States is not as to its powers a territorial government, but only the agent of the States. In the words of Chancellor Kent: "The better opinion would seem to be, that such a power of cession of the territory of a State without its consent does reside exclusively in the treaty-making power, under the Constitution of the United States, yet sound discretion would forbid the exercise of it without the consent of the local government who are interested, except in cases of great necessity, in which the consent might be presumed." 1 Comm. 166-167 and note. This seems also to have been substantially the view of Marshall and Story. _See_ Willoughby, On the Constitution, I (2d ed., 1929), 575-576. The second suggested limitation, which was urged at tremendous length by Chief Justice White in his concurring opinion for himself and three other Justices, in Downes _v._ Bidwell, 182 U.S. 244, 310-344 (1901), boils down simply to the question of correct constitutional procedure for the effectuation of a treaty; and much the same may be said of the third alleged limitation. This limitation was first suggested in connection with the Hague Convention of 1907 providing for an International Prize Court as a result of appeal from the prize courts of belligerents. To this arrangement President Taft objected that the treaty-making power could not transfer to a tribunal not known to the Constitution part of the "judicial power of the United States," and upon this view of the matter dispensation was finally granted the United States in a special protocol whereby this nation was allowed, in lieu of granting appeals from its prize courts to the International Court, to be mulcted in damages in the latter for erroneous decisions in the former. It is submitted that President Taft's position was fallacious, for the simple reason that not even the whole American nation is entitled to judge finally of its rights or of those of its citizens under the law which binds all nations and determines their rights; and that, therefore, the whole American nation never had any authority to create a judicial power vested with any such jurisdiction. _See_ Edye _v._ Robertson (Head Money Cases), 112 U.S. 580, 598 (1884). The law of nations seems of itself to presuppose a tribunal of nations with coextensive jurisdiction. Thus there is no reason why a completely independent nation like the United States may not consent to be bound by the decisions of such a tribunal without any derogation from its rightful sovereignty. And if "the authority of the United States" is the authority of the nation in the field of foreign relations--if the National Government has constitutional powers coextensive with its international responsibilities--we must conclude that such consent can be validly given through the existing treaty-making power. _See_ Favoring Membership of the United States in the Permanent Court of International Justice, H. Rept. 1569, 68th Cong., 2d sess. [208] 5 Pet. 1 (1831). [209] 6 Pet. 515 (1832). [210] Ibid. 558. [211] Holden _v._ Joy, 17 Wall. 211, 242 (1872); United States _v._ 43 Gallons of Whiskey, etc., 93 U.S. 188, 192 (1876); Dick _v._ United States, 208 U.S. 340, 355-356 (1908). [212] The New York Indians, 5 Wall. 761 (1867). [213] The Kansas Indians, 5 Wall. 737, 757 (1867). [214] United States _v._ 43 Gallons of Whiskey, etc., 93 U.S. 188, 196 (1876). [215] The Cherokee Tobacco, 11 Wall. 616 (1871). _See also_ Ward _v._ Race Horse, 163 U.S. 504, 511 (1896); and Thomas _v._. Gay, 169 U.S. 264, 270 (1898). [216] 16 Stat. 544, 566; Rev. Stat § 2079. [217] Ward _v._ Race Horse, 163 U.S. 504 (1896). [218] Lone Wolf _v._ Hitchcock, 187 U.S. 553 (1903). [219] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890). [220] The Cherokee Tobacco, 11 Wall. 616, 621 (1871). [221] Choate _v._ Trapp, 224 U.S. 665, 677-678 (1912); Jones _v._ Meehan, 175 U.S. 1 (1899). [222] For an effort to distinguish "treaties," "compacts," "agreements," "conventions," etc., _see_ Chief Justice Taney's opinion in Holmes _v._ Jennison, 14 Pet. 540, 570-572 (1840). Vattel is Taney's chief reliance. [223] Story, Comm. § 1403. The President has the power in the absence of legislation by Congress, to control the landing of foreign cables on the shores of the United States, 22 Op. Atty. Gen. 13 and 408 (1898, 1899). [224] Crandall, Treaties (2d ed.) Chap. VIII. _See also_ McClure, International Executive Agreements (Columbia University Press, 1941), Chaps. I and II. [225] Crandall, 102; McClure, 49-50. [226] Crandall, 104-106; McClure, 81-82. [227] Tucker _v._ Alexandroff, 183 U.S. 424, 435 (1902). [228] Ibid. 467. The first of these conventions, signed July 29, 1882, had asserted its constitutionality in very positive terms. "The power to make and enforce such a temporary convention respecting its own territory is a necessary incident to every national government, and adheres where the executive power is vested. Such conventions are not treaties within the meaning of the Constitution, and, as treaties, supreme law of the land, conclusive on the courts, but they are provisional arrangements, rendered necessary by national differences involving the faith of the nation and entitled to the respect of the courts. They are not a casting of the national will into the firm and permanent condition of law, and yet in some sort they are for the occasion an expression of the will of the people through their political organ, touching the matters affected; and to avoid unhappy collision between the political and judicial branches of the government, both which are in theory inseparably all one, such an expression to a reasonable limit should be followed by the courts and not opposed, though extending to the temporary restraint or modification of the operation of existing statutes. Just as here, we think, this particular convention respecting San Juan should be allowed to modify for the time being the operation of the organic act of this Territory [Washington] so far forth as to exclude to the extent demanded by the political branch of the government of the United States, in the interest of peace, all territorial interference for the government of that island." Wright, The Control of American Foreign Relations, 239, quoting Watts _v._ United States, 1 Wash. Terr., 288, 294 (1870). [229] Quincy Wright, The Control of American Foreign Relations (New York, 1922), 245. [230] Crandall, 103-104. [231] Ibid. 104. [232] Willoughby, On the Constitution, I, 539. [233] Wallace McClure, International Executive Agreements (Columbia University Press, 1941), 98. [234] Tyler Dennett, Roosevelt and the Russo-Japanese War (New York, 1925), 112-114. [235] McClure, International Executive Agreements, 98-99. [236] Ibid. 99-100. [237] Willoughby, On the Constitution, I, 547. [238] Wallace McClure, International Executive Agreements (Columbia University Press, 1941), 97, 100. [239] McClure, International Executive Agreements, 141. [240] 301 U.S. 324 (1937). [241] Ibid. 330-332. [242] 315 U.S. 203 (1942). [243] Ibid. 229-230. Citing The Federalist, No. 64. [244] Ibid. 230. Citing Guaranty Trust Co. _v._ United States, 304 U.S. 126, 143 (1938). [245] Ibid. 230-231. Citing Nielsen _v._ Johnson, 279 U.S. 47 (1929). [246] Ibid. 231. Citing Santovincenzo _v._ Egan, 284 U.S. 30 (1931); United States _v._ Belmont, 301 U.S. 324 (1937). [247] Ibid. 233-234. Citing Oetjen _v._ Central Leather Co., 246 U.S. 297, 304 (1918). [248] 315 U.S. at 228-234 _passim_. Chief Justice Stone and Justice Roberts dissented, chiefly on the question of the interpretation of the Litvinov Agreement, citing Guaranty Trust Co. _v._ United States, Note 3 above. [249] McClure, p. 391. [250] Ibid. 391-393; United States Department of State Bulletin, September 7, 1940, pp. 199-200. [251] McClure, 394-403; _cf._ The Constitution, article IV, section 3, clause 2. When President John Adams signed a deed conveying property for a legation to the Queen of Portugal, he was informed by his Attorney General that only Congress was competent to grant away public property. _See_ W.B. Bryan, A History of the National Capitol From Its Foundation Through the Period of the Adoption of the Organic Act, I, 328-329; 1 American State Papers, Misc., 334. _See also_ Chief Justice Hughes, for the Court, in Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 330 (1936). [252] 4 State Department Bulletin, April 12, 1941, pp. 443-447. [253] What purports to be the correct text of these agreements was published in the New York Times of March 11, 1947. The joint statement by the United States, Great Britain, and France on arms aid for the Middle East which was released by the White House on May 25, 1950 (_See_ A.P. dispatches of that date) bears the earmarks of an executive agreement. And the same may be said of the following communique issued by the North Atlantic Council at the close of its Sixth Session at Brussels on December 19, 1950. "The North Atlantic Council acting on recommendations of the Defense Committee today completed the arrangements initiated in September last for the establishment in Europe of an integrated force under centralized control and command. This force is to be composed of contingents contributed by the participating governments. "The Council yesterday unanimously decided to ask the President of the United States to make available General of the Army Dwight D. Eisenhower to serve as Supreme Commander. Following receipt this morning of a message from the President of the United States that he had made General Eisenhower available, the Council appointed him. He will assume his command and establish his headquarters in Europe early in the New Year. He will have the authority to train the national units assigned to his command and to organize them into an effective integrated defense force. He will be supported by an international staff drawn from the nations contributing to the force. "The Council, desiring to simplify the structure of the North Atlantic Treaty Organization in order to make it more effective, asked the Council Deputies to initiate appropriate action. In this connection the Defense Committee, meeting separately on December 18th, had already taken action to establish a defense production board with greater powers than those of the Military Production and Supply Board which it supersedes. The new board is charged with expanding and accelerating production and with furthering the mutual use of the industrial capacities of the member nations. "The Council also reached unanimous agreement regarding the part which Germany might assume in the common defense. The German participation would strengthen the defense of Europe without altering in any way the purely defensive character of the North Atlantic Treaty Organization. The Council invited the Governments of France, the United Kingdom and the United States to explore the matter with the Government of the German Federal Republic. "The decisions taken and the measures contemplated have the sole purpose of maintaining and consolidating peace. The North Atlantic nations are determined to pursue this policy until peace is secure." Department of State release to the press of December 19, 1950 (No. 1247). [254] McClure, International Executive Agreements, 38; 1 Stat. 232-239; reenacted in 1 Stat. 354, 366. [255] McClure, 78-81; Crandall, 127-131. [256] Crandall, 121-127. [257] 48 Stat. 943. Section 802 of the Civil Aeronautics Act of 1938 (52 Stat. 973) "clearly anticipates the making of agreements with foreign countries concerning civil aviation." 40 Op. Atty. Gen. 451, 452 (1946). [258] 143 U.S. 649 (1892). [259] Ibid. 694. [260] 224 U.S. 583, 596 (1912). [261] Ibid. 601. [262] 55 Stat. 31. One specific donation was of a destroyer to the Queen of Holland, a refugee at the time in Great Britain. [263] 42 Stat. 363, 1325, 1326-1327; extended by 43 Stat. 763. [264] _See_ Corwin, The President, Office and Powers (3d ed.) 264 and notes. [265] 48 Stat. 1182. [266] McClure, 13-14. [267] Ibid. 14. [268] "There have been numerous instances in which the Senate has approved treaties providing for the submission of specific matters to arbitration, leaving it to the President to determine exactly the form and scope of the matter to be arbitrated and to appoint the arbitrators. Professor J.B. Moore, in the article to which reference has already been made, enumerates thirty-nine instances in which provision has thus been made for the settlement of pecuniary claims. Twenty of these were claims against foreign governments, fourteen were claims against both governments, and five against the United States alone." Willoughby, On the Constitution, I, 543. [269] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st sess., 126. [270] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st sess., 158. [271] United States _v._ Hartwell, 6 Wall. 385, 393 (1868). [272] 7 Op. Atty. Gen. 168 (1855). [273] It was so assumed by Senator William Maclay. _See_ Journal of William Maclay (New York, 1890), 109-110. [274] 5 Benton, Abridgment of the Debates of Congress, 90-91; 3 Letters and Other Writings of James Madison (Philadelphia, 1867), 350-353, 360-371. [275] 10 Stat. 619, 623. [276] 7 Op. Atty. Gen. 220. [277] 35 Stat. 672; _see also_ The act of March 1, 1893, 27 Stat. 497, which purported to authorize the President to appoint ambassadors in certain cases. [278] 22 U.S.C. §§ 1-231. [279] 11 Benton, Abridgement of the Debates of Congress, 221-222. [280] S. Misc. Doc. 109, 50th Cong., 1st sess., 104. [281] S. Rept. 227, 53d Cong., 2d sess., 25. At the outset of our entrance into World War I President Wilson dispatched a mission to "Petrograd," as it was then called, without nominating the Members of it to the Senate. It was headed by Mr. Elihu Root, with "the rank of ambassador," while some of his associates bore "the rank of envoy extraordinary." [282] _See_ George Frisbie Hoar, Autobiography, II, 48-51. [283] Justice Brandeis, dissenting in Myers _v._ United States, 272 U.S. 52, 264-274 (1926). [284] _See_ data in Corwin, The President, Office and Powers (3d ed.) 418. Congress has repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a nongovernmental character; e.g., to paint a picture (Jonathan Trumbull), to lay out a town, to act as Regents of Smithsonian Institution, to be managers of Howard Institute, to select a site for a post office or a prison, to restore the manuscript of the Declaration of Independence, to erect a monument at Yorktown, to erect a statue of Hamilton, and so on and so forth. 42 Harvard Law Review, 426, 430-431. In his message of April 13, 1822, President Monroe stated the thesis that, "as a general principle, * * * Congress have no right under the Constitution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons for these [newly created] offices from the whole body of his fellow-citizens." Messages and Papers of the Presidents, II, 698, 701. The statement is ambiguous, but its apparent intention is to claim for the President unrestricted power in determining who are proper persons to fill newly created offices. [285] 19 Stat. 143, 169 (1876). [286] In Ex parte Curtis, 106 U.S. 371 (1882), Chief Justice Waite reviews early Congressional legislation regulative of conduct in office. "The act now in question is one regulating in some particulars the conduct of certain officers and employés of the United States. It rests on the same principle as that originally passed in 1789 at the first session of the first Congress, which makes it unlawful for certain officers of the Treasury Department to engage in the business of trade or commerce, or to own a sea vessel, or to purchase public lands or other public property, or to be concerned in the purchase or disposal of the public securities of a State, or of the United States (Rev. Stat., sect. 243); and that passed in 1791, which makes it an offence for a clerk in the same department to carry on trade or business in the funds or debts of the States or of the United States, or in any kind of public property (id., sect. 244); and that passed in 1812, which makes is unlawful for a judge appointed under the authority of the United States to exercise the profession of counsel or attorney, or to be engaged in the practice of the law (id., sect. 713); and that passed in 1853, which prohibits every officer of the United States or person holding any place of trust or profit, or discharging any official function under or in connection with any executive department of the government of the United States, or under the Senate or House of Representatives, from acting as an agent or attorney for the prosecution of any claim against the United States (id., sect. 5498); and that passed in 1863, prohibiting members of Congress from practicing in the Court of Claims (id., sect. 1058); and that passed in 1867, punishing, by dismissal from service, an officer or employé of the government who requires or requests any workingman in a navy-yard to contribute or pay any money for political purposes (id., sect. 1546); and that passed in 1868, prohibiting members of Congress from being interested in contracts with the United States (id., sect. 3739); and another, passed in 1870, which provides that no officer, clerk, or employé in the government of the United States shall solicit contributions from other officers, clerks, or employés for a gift to those in a superior official position, and that no officials or [clerical superiors shall receive any gift or] present as a contribution to them from persons in government employ getting a less salary than themselves, and that no officer or clerk shall make a donation as a gift or present to any official superior (id., sect. 1784). Many others of a kindred character might be referred to, but these are enough to show what has been the practice in the Legislative Department of the Government from its organization, and, so far as we know, this is the first time the constitutionality of such legislation has ever been presented for judicial determination." Ibid. 372-373. [287] 5 U.S.C. §§ 631-642. [288] 54 Stat. 767, 771 (1940). [289] 330 U.S. 75 (1947). [290] 18 U.S.C. 611. [291] _See_ Bills Listed in Index to Digest of Public General Bills, 79th Cong., 2d sess. [292] 12 Fed Reg. 1935. [293] Shoemaker _v._ Unite States, 147 U.S. 282, 301 (1893). [294] United States _v._ Germaine, 99 U.S. 508 (1879) is the leading case. For further citations _see_ Auffmordt _v._ Hedden, 137 U.S. 310, 327 (1890). The Court will, nevertheless, be astute to ascribe to a head of department an appointment made by an inferior of such head. Nishimura Ekiu _v._ United States, 142 U.S. 651, 663 (1892). For the view that there is an intrinsic difference between a "public office" and a "public employment" _see_ Mechem, Public Officers, pp. 3-5. [295] Ex parte Hennen, 13 Pet. 230, 257-258 (1839); United States _v._ Germaine, 99 U.S. 508, 509 (1879). The statement on the point is in both instances obiter. [296] Ex parte Siebold, 100 U.S. 371, 397 (1880). [297] "They [the clauses of the Constitution] seem to contemplate three distinct operations: 1st. The nomination. This is the sole act of the President, and is completely voluntary. 2d. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. 3d. The commission. To grant a commission to a person appointed, might, perhaps, be deemed a duty enjoined by the constitution. 'He shall,' says that instrument, 'commission all the officers of the United States.'" Marbury _v._ Madison, 1 Cr. 137, 155-156 (1803). Marshall's statement that the appointment "is the act of the President," conflicts with the more generally held, and sensible view that when an appointment is made with its consent, the Senate shares the appointing power. 1 Kent's Comm. 310; 2 Story Comm. § 1539; Ex parte Hennen, 13 Pet. 225, 259 (1839). [298] 3 Op. Atty. Gen. 188 (1837). [299] 2 Story Comms., § 1531; 5 Writings of Jefferson (Ford, ed.), 161 (1790); 9 Writings of Madison (Hunt, ed.), 111-113 (1822). [300] 286 U.S. 6 (1932). [301] Corwin, The President, Office and Powers (3d ed.), 92. [302] Marbury _v._ Madison, 1 Cr. 137, 157-158, 182 (1803). [303] 12 Op. Atty. Gen. 306 (1867). [304] It should be remembered that, for various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee. [305] Opins. Atty. Gen. 631 (1823); 2 ibid. 525 (1832); 3 ibid. 673 (1841); 4 ibid. 523 (1846); 10 ibid. 356 (1862); 11 ibid. 179 (1865); 12 ibid. 32 (1866); 12 ibid. 455 (1868); 14 ibid. 563 (1875); 15 ibid. 207 (1877); 16 ibid. 523 (1880); 18 ibid. 28 (1884); 19 ibid. 261 (1889); 26 ibid. 234 (1907); 30 ibid. 314 (1914); 33 ibid. 20 (1921). In 4 Opins. Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply to a yet unfilled office which was created during the previous session of Congress, but this distinction is rejected in 12 ibid. 455 (1868); 18 ibid. 28; and 19 ibid. 261. [306] 23 Opins. Atty. Gen. 599 (1901); 22 ibid. 82 (1898). A "recess" may, however, be merely "constructive," as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous _Crum_ incident. _See_ Willoughby, III, 1508-1509. [307] 5 U.S.C. § 56. [308] 6 Opins. Atty. Gen. 358 (1854); 12 ibid. 41 (1866); 25 ibid. 259 (1904); 28 ibid. 95 (1909). [309] 272 U.S. 52. [310] 19 Stat. 78, 80. [311] 272 U.S. 163-164. [312] The reticence of the Constitution respecting removal left room for four possibilities, _first_, the one suggested by the common law doctrine of "estate in office," from which the conclusion followed that the impeachment power was the only power of removal intended by the Constitution; _second_, that the power of removal was an incident of the power of appointment and hence belonged, at any rate in the absence of legal or other provision to the contrary, to the appointing authority; _third_, that Congress could, by virtue of its power "to make all laws which shall be necessary and proper," etc., determine the location of the removal of power; _fourth_, that the President by virtue of his "executive power" and his duty "to take care that the laws be faithfully executed," possesses the power of removal over all officers of the United States except judges. In the course of the debate on the act to establish a Department of Foreign Affairs (later changed to Department of State) all of these views were put forward, with the final result that a clause was incorporated in the measure which implied, as pointed out above, that the head of the department would be removable by the President at his discretion. Contemporaneously and indeed until after the Civil War, this action by Congress, in other words "the decision of 1789," was interpreted as establishing "a practical construction of the Constitution" with respect to executive officers appointed without stated terms. However, in the dominant opinion of those best authorized to speak on the subject, the "correct interpretation" of the Constitution was that the power of removal was always an incident of the power of appointment, and that therefore in the case of officers appointed by the President with the advice and consent of the Senate the removal power was exercisable by the President only with the advice and consent of the Senate. _See_ Hamilton in the Federalist No. 77; 1 Kent's Comm. 310; 2 Story Comm. §§ 1539 and 1544; Ex parte Hennen, 13 Pet. 225, 258-259 (1839). The doctrine of estate in office was countenanced by Chief Justice Marshall in his opinion in Marbury _v._ Madison, 1 Cr. 137, 162-165 (1803), but has long been rejected. _See_ Crenshaw _v._ United States, 134 U.S. 99, 108 (1890). The three remaining views are treated by the Chief Justice, at some cost in terms of logic as well as of history, as grist to his mill. [313] 272 U.S. at 134. [314] Annals of Congress, cols. 635-636. [315] 295 U.S. 602 (1935). The case is also styled Rathbun, Executor _v._ United States, Humphrey having, like Myers before him, died in the course of his suit for salary. [316] 295 U.S. at. 627-629, 631-632. Justice Sutherland's statement, quoted above, that a Federal Trade Commissioner "occupies no place in the executive department" (_See also_ to the same effect p. 630 of the opinion) was not necessary to the decision of the case, was altogether out of line with the same Justice's reasoning in Springer _v._ Philippine Islands, 277 U.S. 189, 201-202 (1928), and seems later to have caused the author of it much perplexity. _See_ Robert E. Cushman, The Independent Regulatory Commissions (Oxford University Press, 1941), 447-448. As Professor Cushman adds: "Every officer and agency created by Congress to carry laws into effect is an arm of Congress. * * * The term may be a synonym; it is not an argument." Ibid. 451. [317] United States _v._ Perkins, 116 U.S. 483 (1886). [318] Parsons _v._ United States, 167 U.S. 324 (1897). [319] Shurtleff _v._ United States, 189 U.S. 311 (1903). [320] Blake _v._ United States, 103 U.S. 227 (1881); Quackenbush _v._ United States, 177 U.S. 20 (1900); Wallace _v._ United States, 257 U.S. 541 (1922). [321] Morgan _v._ TVA, 28 F. Supp. 732 (1939), certiorari refused March 17, 1941. 312 U.S. 701, 702. [322] _See_ United Public Workers _v._ Mitchell, 330 U.S. 75 (1947); _also_ Ex parte Curtis, 106 U.S. 371 (1882); and 39 Op. Atty. Gen. 145 (1938). [323] 6 Op. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890). [324] United States _v._ Lovett, 328 U.S. 303 (1946). [325] Messages and Papers of the Presidents, II, 847 (January 10, 1825). [326] _See_ 328 U.S. at 313. [327] In this connection the following colloquy between Attorney General Lincoln and the Court in course of the proceedings in Marbury _v._ Madison is of first importance: "Mr. Lincoln, attorney-general, having been summoned, and now called, objected to answering. * * * On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as secretary of state at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state. He did not think himself bound to disclose his official transactions while acting as secretary of state; * * * The court said, that if Mr. Lincoln wished time to consider what answers he should make, they would give him time; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it; * * *" 1 Cr. 137, 143-145 (1803). [328] The following letter, dated April 30, 1941, from Attorney General Jackson to Hon. Carl Vinson, Chairman of the House Committee on Naval Affairs is of interest in this connection: "My Dear Mr. Vinson: I have your letter of April 23, requesting that your committee be furnished with all Federal Bureau of Investigation reports since June 1939, together with all future reports, memoranda, and correspondence of the Federal Bureau of Investigation, or the Department of Justice, in connection with 'investigations made by the Department of Justice arising out of strikes, subversive activities in connection with labor disputes, or labor disturbances of any kind in industrial establishments which have naval contracts, either as prime contractors or subcontractors.' Your request to be furnished reports of the Federal Bureau of Investigation is one of the many made by congressional committees. I have on my desk at this time two other such requests for access to Federal Bureau of Investigation files. The number of these requests would alone make compliance impracticable, particularly where the requests are of so comprehensive a character as those contained in your letter. In view of the increasing frequency of these requests, I desire to restate our policy at some length, together with the reasons which require it. It is the position of this Department, restated now with the approval of and at the direction of the President, that all investigative reports are confidential documents of the executive department of the Government, to aid in the duty laid upon the President by the Constitution to 'take care that the laws be faithfully executed,' and that congressional or public access to them would not be in the public interest. "Disclosure of the reports could not do otherwise than seriously prejudice law enforcement. Counsel for a defendant or prospective defendant, could have no greater help than to know how much or how little information the Government has, and what witnesses or sources of information it can rely upon. This is exactly what these reports are intended to contain. * * * "In concluding that the public interest does not permit general access to Federal Bureau of Investigation reports for information by the many congressional committees who from time to time ask it, I am following the conclusions reached by a long line of distinguished predecessors in this office who have uniformly taken the same view. Example of this are to be found in the following letters, among others: "Letter of Attorney General Knox to the Speaker of the House, dated April 27, 1904, declining to comply with a resolution of the House requesting the Attorney General to furnish the House with all papers and documents and other information concerning the investigation of the Northern Securities case. "Letter of Attorney General Bonaparte to the Speaker of the House, dated April 13, 1908, declining to comply with a resolution of the House requesting the Attorney General to furnish to the House information concerning the investigation of certain corporations engaged in the manufacture of wood pulp or print paper. "Letter of Attorney General Wickersham to the Speaker of the House, dated March 18, 1912, declining to comply with a resolution of the House directing the Attorney General to furnish to the House information concerning an investigation of the smelter trust. "Letter of Attorney General McReynolds to the Secretary to the President, dated August 28, 1914, stating that it would be incompatible with the public interest to send to the Senate in response to its resolution, reports made to the Attorney General by his associates regarding violations of law by the Standard Oil Co. "Letter of Attorney General Gregory to the President of the Senate, dated February 23, 1915, declining to comply with a resolution of the Senate requesting the Attorney General to report to the Senate his findings and conclusions in the investigation of the smelting industry. "Letter of Attorney General Sargent to the chairman of the House Judiciary Committee, dated June 8, 1926, declining to comply with his request to turn over to the committee all papers in the files of the Department relating to the merger of certain oil companies. * * * "This discretion in the executive branch has been upheld and respected by the judiciary. The courts have repeatedly held that they will not and cannot require the executive to produce such papers when in the opinion of the executive their production is contrary to the public interests. The courts have also held that the question whether the production of the papers would be against the public interest is one for the executive and not for the courts to determine." Mr. Jackson cites Marbury _v._ Madison, 1 Cr. 137, 169 (1803); and more than a dozen other cases, federal and State, most of which involved "privileged communications" in ordinary court proceedings. The doctrine of the equality of the three departments is also invoked by him.--10 Op. Atty. Gen. 45. [329] _See_ Norman J. Small, Some Presidential Interpretations of the Presidency (Johns Hopkins Press, 1932); Henry C. Black, The Relation of the Executive Power to Legislation (Princeton, 1919); W.E. Binkley, The President and Congress (New York, 1947); Edward S. Corwin, The President, Office and Powers (3d ed., 1948), Chaps. I and VII, _passim_. [330] The first Harrison, Polk, Taylor, and Fillmore all fathered sentiments to this general effect. _See_ Messages and Papers of the President, IV, 1864; V, 2493; VI, 2513-2519, 2561-2562, 2608, 2615. [331] Note 1, above. [Transcriber's Note: Reference is to Footnote 329, above.] [332] Charles Warren, Presidential Declarations of Independence, 10 Boston University Law Review, No. 1 (January, 1930); Willoughby, On the Constitution, III, 1488-1492. [333] 7 Op. Atty. Gen. 186, 209 (1855). [334] 5 Moore, International Law Digest, 15-19. [335] 4 Ibid. 473-548; 5 Ibid. 19-32. [336] Opinion on the Question Whether the Senate Has the Right to Negative the Grade of Persons Appointed by the Executive to Fill Foreign Missions, April 24, 1790; Padover, The Complete Jefferson (New York, 1943), 138. [337] 4 Moore, International Law Digest, 680-681. [338] This measure, amended by the act of March 4, 1909 (35 Stat. 1088), is now 18 U.S.C.A. § 953. [339] _See_ Memorandum on the History and Scope of the Laws Prohibiting Correspondence with a Foreign Government, S. Doc. 696, 64th Cong., 2d sess., (1917). The author was Mr. Charles Warren, then Assistant Attorney General. Further details concerning the observance of the "Logan" Act are given in Corwin, The President, Office and Powers (3d ed.) 223-224, 469-470. Early in October, 1950 President Harold Stassen of the University of Pennsylvania announced that he had written Premier Stalin offering to confer with him respecting issues between the two governments. [340] Benton Abridgment of the Debates of Congress, 466-467. [341] S. Doc. 56, 54th Cong., 2d sess., (1897). [342] The Federalist, containing the Letters of Pacificus and Helvidius (New ed., 1852) 444; _see also_ p. 493, n. 1. [Transcriber's Note: Reference is to Footnote 344, below.] [343] The Federalist No. 69, where he wrote: "The president is also to be authorized to receive ambassadors, and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister; though it were merely to take the place of a departed predecessor." Ibid. 518. [344] "Letters of Pacificus," 7 Works (Hamilton ed.) 76, 82-83. [345] Moore, International Law Digest, IV, 680-681. [346] The Federalist containing the Letters of Pacificus and Helvidius (New ed. 1852) 445-446. [347] Moore, International Law Digest, I, 243-244. The course of the Monroe Administration in inviting the cooperation of Congress in connection with recognition of the Spanish-American Republics, although it was prompted mainly by the consideration that war with Spain might result, was nonetheless opposed by Secretary of State John Quincy Adams. "Instead," said he, "of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bodies. It was I had no doubt, by our Constitution an act of the Executive authority. General Washington had exercised it in recognizing the French Republic by the reception of Mr. Genet. Mr. Madison had exercised it by declining several years to receive, and by finally receiving, Mr. Onis; and in this instance I thought the Executive ought carefully to preserve entire the authority given him by the Constitution, and not weaken it by setting the precedent of making either House of Congress a party to an act which it was his exclusive right and duty to perform. Mr. Crawford said he did not think there was anything in the objection to sending a minister on the score of national dignity, and that there was a difference between the recognition of a change of government in a nation already acknowledged as sovereign, and the recognition of a new nation itself. He did not, however, deny, but admitted, that the recognition was strictly within the powers of the Executive alone, and I did not press the discussion further.'" Ibid., 244-245; citing Memoirs of John Quincy Adams, IV, 205-206. [348] S. Doc. 56, 54th Cong., 2d sess., pp. 20-22. [349] Said Senator Nelson of Minnesota: "The President has asked us to give him the right to make war to expel the Spaniards from Cuba. He has asked us to put that power in his hands; and when we are asked to grant that power--the highest power given under the Constitution--we have the right, the intrinsic right, vested in us by the Constitution, to say how and under what conditions and with what allies that war-making power shall be exercised." 31 Cong. Record, Pt. 4, p. 3984. [350] _See_ in this connection a long list of resolutions or bills originating in the House of Representatives appertaining to foreign relations. H. Rept. 1569 ("Confidential"), 68th Cong., 2d sess. (February 24, 1925). [351] _See_ A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st sess., p. 158. [352] President Truman's Statement of June 28, 1950, A.P. release: "The Security Council called upon all members of the United Nations to render every assistance to the United Nations in the execution of this resolution. "In these circumstances I have ordered United States air and sea forces to give the Korean Government troops cover and support. "The attack upon Korea makes it plain beyond all doubt that communism has passed beyond the use of subversion to conquer independent nations and will now use armed invasion and war. "It has defied the orders of the Security Council of the United Nations issued to preserve international peace and security. In these circumstances the occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to United States forces performing their lawful and necessary functions in that area. "Accordingly I have ordered the Seventh Fleet to prevent any attack on Formosa. As a corollary of this action I am calling upon the Chinese Government on Formosa to cease all air and sea operations against the mainland. The Seventh Fleet will see that this is done. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations. "I have also directed that United States forces in the Philippines be strengthened and that military assistance to the Philippine Government be accelerated. "I have similarly directed acceleration in the furnishing of military assistance to the forces of France and the associated states in Indo-China and the dispatch of a military mission to provide close working relations with those forces." [353] Messages and Papers of the Presidents, XVII, (1914), 7934. [354] 55 Stat. 31; 22 U.S.C. (1940), Supp. IV, §§ 411-413. [355] James F. Green, The President's Control of Foreign Policy, Foreign Policy Reports (April 1, 1939), 17-18; Corwin, The President, Office and Powers (3d ed.), 224-235; 463-465, 473-474. [356] 2 Pet. 253 (1829). [357] Ibid. 308. [358] 13 Pet. 415 (1839). [359] Ibid. 420. [360] Foster _v._ Neilson, supra. [361] Williams _v._ Suffolk Ins. Co., 13 Pet. 415 (1839). [362] United States _v._ Palmer, 3 Wheat. 610 (1818). [363] Doe _v._ Braden, 16 How. 636, 657 (1853). [364] Jones _v._ United States, 137 U.S. 202 (1890); Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918). [365] In re Baiz, 135 U.S. 403 (1890). [366] Neely _v._ Henkel, 180 U.S. 109 (1901). [367] Terlinden _v._ Ames, 184 U.S. 270 (1902); Charlton _v._ Kelly, 229 U.S. 447 (1913). [368] 333 U.S. 103 (1948). [369] 49 U.S.C. § 601. [370] Ibid. § 646. [371] Chicago & S. Airlines _v._ Waterman S.S. Corp., 333 U.S. 103, 111 (1948). _See also_ Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918); Ricaud _v._ American Metal Co., 246 U.S. 304 (1918); and Compania Espanola de Navegacion Maritima, S.A. _v._ The Navemar, 303 U.S. 68, 74 (1938). In this last case the Court declared: "The vessel of a friendly government in its possession and service is a public vessel, even though engaged in the carriage of merchandise for hire, and as such is immune from suit in the courts of admiralty of the United States. * * * It is open to a friendly government to assert that such is the public status of the vessel and to claim her immunity from suit, either through diplomatic channels or, if it chooses, as a claimant in the courts of the United States. If the claim is recognized and allowed by the executive branch of the government, it is then the duty of the courts to release the vessel upon appropriate suggestion by the Attorney General of the United States, or other officer acting under his direction. * * * The foreign government is also entitled as of right upon a proper showing, to appear in a pending suit, there to assert its claim to the vessel, and to raise the jurisdictional question in its own name or that of its accredited and recognized representative." Similarly, it has been held that courts may not exercise their jurisdiction by the seizure and detention of the property of a friendly sovereign, so as to embarrass the executive arm of the government in conducting foreign relations. Ex parte Republic of Peru, 318 U.S. 578 (1943). [372] 335 U.S. 160 (1948). [373] Ibid. 167, 170. Four Justices dissented, by Justice Black, who said: "The Court * * * holds, as I understand its opinion, that the Attorney General can deport him whether he is dangerous or not. The effect of this holding is that any unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citizen of Germany before coming here, can be summarily seized, interned and deported from the United States by the Attorney General, and that no court of the United States has any power whatever to review, modify, vacate, reverse, or in any manner affect the Attorney General's deportation order. * * * I think the idea that we are still at war with Germany in the sense contemplated by the statute controlling here is a pure fiction. Furthermore, I think there is no act of Congress which lends the slightest basis to the claim that after hostilities with a foreign country have ended the President or the Attorney General, one or both, can deport aliens without a fair hearing reviewable in the courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion of formal peace with Germany, Congress unequivocally required that enemy aliens be given a fair hearing before they could be deported." Ibid. 174-175. _See also_ Woods _v._ Miller, 333 U.S. 138 (1948), where the continuation of rent control under the Housing and Rent Act of 1947, enacted after the termination of hostilities was unanimously held to be a valid exercise of the war power, but the constitutional question raised was asserted to be a proper one for the Court. Said Justice Jackson, in a concurring opinion: "Particularly when the war power is invoked to do things to the liberties of people, or to their property or economy that only indirectly affect conduct of the war and do not relate to the management of the war itself, the constitutional basis should be scrutinized with care." Ibid. 146-147. [374] 7 Op. Atty. Gen. 453, 464-465 (1855). [375] 9 Stat. 102 (1846); 20 U.S.C. §§ 41 and 48. [376] _Cf._ 2 Stat. 78. The provision has long since dropped out of the statute book. [377] Runkle _v._ United States, 122 U.S. 543 (1887). [378] _Cf._ In re Chapman, 166 U.S. 661, 670-671 (1897), where it is held that presumptions in favor of official action "preclude collateral attack on the sentences of courts-martial." _See also_ United States _v._ Fletcher, 148 U.S. 84, 88-89 (1893); and Bishop _v._ United States, 197 U.S. 334, 341-342 (1905); both of which in effect repudiate Runkle _v._ United States. [379] "The President, in the exercise of his executive powers under the Constitution, may act through the head of the appropriate executive department. The heads of departments are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts." Wilcox _v._ Jackson ex dem McConnel, 13 Pet. 498, 513 (1839). _See also_, United States _v._ Eliason, 16 Pet. 291 (1842); Williams _v._ United States, 1 How. 290, 297 (1843); United States _v._ Jones, 18 How. 92, 95 (1856); United States _v._ Clarke (Confiscation Cases), 20 Wall. 92 (1874); United States _v._ Farden, 99 U.S. 10 (1879); Wolsey _v._ Chapman, 101 U.S. 755 (1880). [380] 1 How. 290 (1843). [381] 3 Stat. 723 (1823). [382] 1 How. at 297-298. [383] "It is manifestly impossible for the President to execute every duty, and every detail thereof, imposed upon him by the Congress. The courts have recognized this and have further recognized that he usually and properly acts through the several executive departments. Every reasonable presumption of validity is to be indulged with respect to the performance by the head of a department of a duty imposed upon the President and executed by the department head ostensibly in behalf of the President. Nevertheless, the authorities indicate that the President cannot, without statutory authority, delegate a discretionary duty, relieving himself of all responsibility, so that the duty when performed will not be his act but wholly the act of another. Williams _v._ United States, 1 How. 290, 297 (1843); Runkle _v._ United States, 122 U.S. 543, 557 (1887); United States _v._ Fletcher, 148 U.S. 84, 88 (1893); French _v._ Weeks, 259 U.S. 326, 334 (1922)"; 38 Op. Atty. Gen. 457-459 (1936). [384] 1 Annals of Congress, cols. 515-516. [385] Ibid. cols. 635-636. [386] 1 Cr. 137 (1803). [387] Ibid. 165-166. [388] Op. Atty. Gen. 624 (1823). [389] Messages and Papers of the Presidents, III, 1288. [390] Ibid. 1304. [391] 12 Pet. 524 (1838). [392] Ibid. 610. [393] 272 U.S. 52 (1926); 295 U.S. 602 (1935). [394] Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers (St. Paul, 1903), 231-232. [395] United States _v._ Eliason, 16 Pet. 291, 301-302 (1842); Kurtz _v._ Moffitt, 115 U.S. 487, 503 (1885); Smith _v._ Whitney, 116 U.S. 167, 180-181 (1886). [396] 135 U.S. 1 (1890). [397] Ibid. 64. The phrase "a law of the United States" came from the act of March 2, 1833 (4 Stat. 632). However, in 28 U.S.C. 2241 (c) (2), as it stands following the amendment of May 24, 1949, c. 139, the phrase is replaced by the term an act of Congress, thereby eliminating the basis of the holding in In re Neagle. [398] 236 U.S. 459 (1915); Mason _v._ United States, 260 U.S. 545 (1923). [399] Rev. Stat. § 5298; 50 U.S.C. § 202. [400] 1 Stat. 264 (1792); 1 Stat. 424 (1795); 2 Stat. 443 (1807); 12 Stat. 281 (1861). [401] 12 Wheat. 19 (1827). [402] Ibid. 31-32. [403] "Federal Aid in Domestic Disturbances," S. Doc. 209, 59th Cong., 2 sess., p. 51 (1907). [404] Op. Atty. Gen. 466 (1854). By the Posse Comitatus Act of 1878 (20 Stat. 152) it was provided that "* * * it shall not be lawful to employ any part of the Army of the United States, as a _posse comitatus_, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress * * *" The effect of this prohibition, however, was largely nullified by a ruling of the Attorney General "that by Revised Statutes §§ 5298 and 5300, the military forces, under the direction of the President, could be used to assist a marshal. 16 Op. Atty. Gen. 162." Bennett Milton Rich, The Presidents and Civil Disorder (The Brookings Institution, 1941), 196 fn. 21. [405] 12 Stat (App.) 1258. [406] 212 U.S. 78 (1909). [407] In re Debs, 158 U.S. 565 (1895). [408] 212 U.S. at 84-85. _See also_ Sterling _v._ Constantin, 287 U.S. 378 (1932), which endorses Moyer _v._ Peabody, while emphasizing the fact that it applies only to a condition of disorder. [409] 158 U.S. at 584, 586. Some years earlier, in the United States _v._ San Jacinto Tin Co., the Courts sustained the right of the Attorney General and of his assistants to institute suits simply by virtue of their general official powers. "If," the Court said, "the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts, for relief * * *" in the question of appealing to them "must primarily be decided by the Attorney General * * *" and if restrictions are to be placed upon the exercise of this authority it is for Congress to enact them. 125 U.S. 273, 279 (1888). _Cf._ Hayburn's case, 2 Dall. 409 (1792), in which the Court rejected Attorney General Randolph's contention that he had the right _ex officio_ to move for a writ of _mandamus_ ordering the United States circuit court for Pennsylvania to put the Invalid Pension Act into effect. [410] 29 U.S.C. §§ 101-105; 47 Stat. 70 (1932). [411] 330 U.S. 258. Here it was held that the Norris-LaGuardia Act did not apply to a case brought by the government as operator, under the War Labor Disputes Act of 1943, of a large proportion of the nation's soft coal mines. In reaching this result Chief Justice Vinson invoked the "rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect." Standing by itself these words would seem to save the Debs case. But they do not stand by themselves, for the Chief Justice presently added "that Congress, in passing the [Norris-LaGuardia] Act, did not intend to permit the United States to continue to intervene by injunction in purely private labor disputes. * * * where some public interest was thought to have become involved," words which seem intended to repudiate the Debs case. However, the Chief Justice goes on at once to say, "* * * whether Congress so intended or not is a question different from the one before us now." Ibid. 272, 278. [412] Public Law 101, 80th Cong., 1st sess., §§ 206-210. [413] _See_ Louis Stark in New York Times, February 4, 1949; Labor Relations, Hearings before the Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st sess., pp. 263, 285, 295, 905, 911; Julius and Lillian Cohen, The Divine Rights of Presidents, 29 Nebraska Law Review, p. 416, March 1950. [414] 30 Op. Atty. Gen. 291, 292, 293. [415] Durand _v._ Hollins, 4 Blatch. 451, 454 (1860). [416] Published by World Peace Foundation (Boston, 1945) _See also_, for the period 1811 to 1934, J. Reuben Clark's Memorandum as Solicitor of the Department of State entitled Right to Protect Citizens in Foreign Countries by Landing Forces (Government Printing Office, 1912, 1934). The great majority of the landings were for "the simple protection of American citizens in disturbed areas," and only about a third involved belligerent action. [417] 5 Moore, International Law Digest, 478-510, _passim_. [418] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st Sess., p. 1347. [419] _See_ Max Farrand, Records, II, 318-319. [420] Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952). [421] 17 Fed. Reg. 3139-3143. "Whereas on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and "Whereas American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against aggression; and "Whereas the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and "Whereas steel is likewise indispensable to the carrying out of programs of the Atomic Energy Commission of vital importance to our defense efforts; and "Whereas a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our military strength depends; and "Whereas a controversy has arisen between certain companies in the United States producing and fabricating steel and the elements thereof and certain of their workers represented by the United Steel Workers of America, CIO, regarding terms and conditions of employment; and "Whereas the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952; and "Whereas a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and "Whereas in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided: "Now, Therefore, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows: "1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation. "2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order. "3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties. "4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies. "5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes. "6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility, or other property to the company in possession and control thereof at the time possession was taken under this order. "7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable. Harry S. Truman. The White House, April 8, 1952." [422] 343 U.S. 579, 583. [423] Ibid. 584. [424] 343 U.S. 579, 585-589. [425] 2 Cr. 170 (1804). [426] 343 U.S. 579, 660, 661. [427] 343 U.S. 579, 684, citing 10 Annals of Congress, 619 (1800). _See also_ p. 418. [428] 9 Stat. 302; R.S. §§ 5270-5279. [429] For the controversy thereby precipitated between Hamilton ("Pacificus") and Madison (Helvidius), _see_ Edward S. Corwin, The President's Control of Foreign Relations (Princeton University Press, 1916), Chap. I. [430] The Act of June 5, 1794; 1 Stat. 381. The Act was the direct outcome of suggestions made by Washington in his message of December 5, 1793. 1 Richardson 139. [431] 22 Opins. A.G. 13 (1898); Tucker _v._ Alexandroff, 183 U.S. 424, 435 (1902). An act was passed May 27, 1921 (42 Stat. 8) which requires presidential license for the landing and operation of cables connecting the United States with foreign countries. Quincy Wright, The Control of American Foreign Relations (New York, 1922) 302 fn. 75. [432] Santiago _v._ Nogueras, 214 U.S. 260 (1909). [433] Madsen _v._ Kinsella, 343 U.S. 341 (1952). [434] Charlton _v._ Kelly, 229 U.S. 447 (1913). _See also_ Botiller _v._ Dominguez, 130 U.S. 238 (1889). [435] Sinclair _v._ United States, 279 U.S. 263, 289, 297 (1929). [436] 12 Stat. 755. [437] Berdahl, War Powers of the Executive in the United States (University of Illinois, 1921), 69. [438] 343 U.S. 579, 695. [439] 89 Cong. Rec. 3992 (1943). [440] 57 Stat. 163. [441] 343 U.S. 579, 697. [442] 341 U.S. 114 (1951). [443] _See_ Hooe _v._ United States, 218 U.S. 322, 335-336 (1910); United States _v._ North American Co., 253 U.S. 330, 333 (1920). _Cf._ Larson _v._ Domestic and Foreign Corp., 337 U.S. 682, 701-702 (1949). [444] 341 U.S. 114, 119. [445] _See_ p. 486. [446] Brief for the United States, No. 278, October Term, 1914, pp. 11, 75-77, quoted by the Chief Justice in 343 U.S. 579, 689-691. Assistant Attorney General Knaebel's name was also on the Brief. [447] 343 U.S. 579, 597. [448] Ibid. 602. [449] 343 U.S. 579, 631-632. [450] 13 How. 115 (1852). [451] 13 Wall. 623 (1872). [452] 260 U.S. 327 (1922). [453] 341 U.S. 114 (1949). [454] 315 U.S. 203, 230 (1942). [455] Federalist No. 64. [456] _See also_ 40 Op. Atty. Gen. 250, 253 (1942). [457] 343 U.S. 579, 639, 640. [458] Ibid. 653, 654. [459] 343 U.S. 579, 657. [460] Ibid. 659. [461] 2 Cr. 170 (1804). [462] 343 U.S. 579, 662, 663. [463] Ibid. 662. [464] 343 U.S. 579, 678, 679. [465] Ibid. 705. [466] Ibid. 708-709. [467] 4 Wall. 475 (1867). [468] Ibid. 484. [469] Ibid. 500-501. [470] Kendall _v._ United States, 12 Pet. 524 (1838); United States _v._ Lee, 106 U.S. 196 (1882). It should be noted, however, that if the President fails to act, or if he adopts a narrow construction of a statute which he dislikes, and on this ground professes inability to act, the only remedy available against him is impeachment. [471] Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893); Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912). [472] Kendall _v._ United States, above; [Transcriber's Note: Reference is to Footnote 470, above.] United States _v._ Schurz, 102 U.S. 378 (1880); United States ex rel. Dunlap _v._ Black, 128 U.S. 40 (1888). _Cf._ Decatur _v._ Paulding, 14 Pet. 497 (1840); and Riverside Oil Co. _v._ Hitchcock, 190 U.S. 316 (1903), where the rule is reiterated that neither injunction nor mandamus will lie against an officer to control him in the exercise of an official duty which requires the exercise of his judgment and discretion. [473] This was originally on the theory that the Supreme Court of the District had inherited, via the common law of Maryland, the jurisdiction of the King's Bench "over inferior jurisdictions and officers." 12 Pet. at 614 and 620-621. [474] Little _v._ Barreme, 2 Cr. 170 (1804); United States _v._ Lee, above; [Transcriber's Note: Reference is to Footnote 470, above.] Spaulding _v._ Vilas, 161 U.S. 483 (1896). [475] Bell _v._ Hood, 327 U.S. 678 (1946). The decision is based on an interpretation of 28 U.S.C. § 41 (1). [476] Mitchell _v._ Clark, 110 U.S. 633 (1884). An official action is indemnifiable if Congress could have authorized it in the first place, or if it was done under "imperative orders which could not be resisted," or "under necessity or mistake." Ibid. 640-641. [477] Tennessee _v._ Davis, 100 U.S. 257 (1880); In re Neagle, 135 U.S. 1 (1890). _Cf._ Maryland _v._ Soper, 270 U.S. 9 (1926). [478] 17 Op. Atty. Gen. 419 (1882). _See also_ Hinds' Precedents, III, §§ 2315-2318 (1907). [479] The Belknap Case, ibid. § 2445. [480] Elliot, Debates, V, 341, 528. [481] Ibid. IV, 375. [482] The Federalist No. 65. For the above _see_ William S. Carpenter, Judicial Tenure in the United States (Yale University Press, 1918), 105-106. [483] John Quincy Adams, Memoirs, I, 321, 322 (1874). [484] Trial of Andrew Johnson, I, (Government Printing Office, 1868), 147. [485] Ibid. 409. Johnson and his Cabinet were much concerned over rumors that it was the intention of his enemies in the House, following impeachment and pending the trial, to put him under arrest and/or suspend him from office. Gideon Welles, Diary, III, 21, 27, 50, 57, 60, 62, 151, 200, 235, 237, 238, 291, 313. But no such step was attempted. Several state constitutions contain provisions authorizing suspension from office in such a case. [486] Carpenter, Judicial Tenure, 145-153. [487] Senate proceedings in Cong. Record, vol. 80, pp. 5558-5559, (April 16, 1936). [488] On this account, as well as because of the cumbersomeness of the impeachment process and the amount of time it is apt to consume, it has been suggested that a special court could, and should, be created to try cases of alleged misbehavior in office of inferior judges of the United States, this type of officer having furnished the great majority of cases of impeachment under the Constitution. _See_ Memorandum on Removal Power of Congress with Respect to the Supreme Court, Senate Judiciary Committee, 80th Cong., 1st sess.; _also_ Burke Shartel, Federal Judges--Appointment, Supervision, and Removal--Some Possibilities under the Constitution, 28 Mich. L. Rev., 870-907 (May 1930). Is impeachment the only way in which Congress, or either house thereof, is constitutionally entitled to call the President to account for his conduct in office? _Cf._ George Wharton Pepper, Family Quarrels, The President, the Senate, and the House (New York, 1931), 138 ff.; and Corwin, The President, Office and Powers (3d ed.), 411-413. ARTICLE III THE JUDICIAL DEPARTMENT Section 1. The judicial power, courts, judges: Page Characteristics and attributes of judicial power 511 "Judicial power" 511 "Shall be vested" 512 Finality of judgment 512 Taney doctrine 513 Award of execution 514 Ancillary powers 515 Contempt power; the act of 1789 515 An inherent power 515 Contempt power exalted 516 Recession of the doctrine 517 Bridges _v._ California 517 Summary punishment of contempt; misbehavior of counsel 517 Punishment of counsel; The Sacher Case 519 Contempt by disobedience of orders 520 Criminal versus civil contempts 521 Judicial power aids administrative power 521 Power to issue writs; the act of 1789 522 Common law powers of the District of Columbia Courts 522 Habeas corpus 523 Congress limits the inquisition power 523 Injunctions under the Emergency Price Control Act of 1942 525 Rule-making power and powers over process 525 Limits to the power 526 Appointment of referees, masters, and special aids 527 Power to admit and disbar attorneys 527 Organization of courts; compensation of judges 528 "One supreme court" 528 Inferior courts made and abolished 528 Abolition of the commerce court 529 Compensation 530 Diminution of salaries 530 Courts of specialized jurisdiction 531 Emergency Court of Appeals of 1942 531 Judicial review restrained 532 Legislative courts; Canter case 533 Other legislative courts 534 Powers of Congress over legislative courts 534 Status of the Court of Claims 535 A judicial paradox 536 Status of the courts of the District of Columbia.' 536 Section 2. Jurisdiction 538 Clause 1. Scope of jurisdiction 538 "Cases and controversies" 538 Two classes of "cases and controversies" 538 Adverse litigants 539 Stockholders' suits 541 Substantial interest doctrine 542 Substantial interest in suits by States 543 Abstract, contingent, and hypothetical questions 544 Political questions 546 Origin of the concept 546 Exemplifications of the doctrine 547 Recent cases 548 Advisory opinions 549 Declaratory judgments 551 Declaratory Judgment Act of 1934 551 "Case or controversy" test in declaratory judgment proceedings 552 Cases arising under the Constitution, laws, and treaties of the United States 553 Definition 553 Judicial review 554 Judicial review and national supremacy 554 Judicial review of acts of Congress 556 Hamilton's argument 558 Marbury _v._ Madison 559 Marshall's argument 559 Importance of Marbury _v._ Madison 560 Limits to the exercise of judicial review 561 The doctrine of "strict necessity" 562 The doctrine of political questions 562 The "reasonable doubt" doctrine 563 Exclusion of extra-constitutional tests 564 Disallowance by statutory interpretation 565 Stare decisis in constitutional law 565 Allegations of federal question 566 Corporations chartered by Congress 568 Removal from State courts of suits against federal officials 568 Tennessee _v._ Davis 569 Supreme Court review of State court decisions 570 Suits affecting ambassadors, other public ministers, and consuls 571 When ambassadors, etc., are affected 571 Cases of admiralty and maritime jurisdiction 572 Origin and characteristics 572 Congressional interpretation of the admiralty clause 572 Judicial approval of congressional interpretation 573 Two types of cases 573 Maritime torts 574 Prize cases, forfeitures, etc. 575 Proceedings in rem 575 Absence of a jury 576 Territorial extent of admiralty and maritime jurisdiction 576 Admiralty jurisdiction versus State power 578 Exclusive of admiralty jurisdiction 578 Concessions to State power 579 The Jensen case and its sequelae 580 Power of Congress to modify maritime law; the "Lottawanna" 582 Cases to which the United States is a party; right of United States to sue 584 Suits against States 584 Immunity of United States from suit 585 Waiver of immunity by Congress 586 United States _v._ Lee 587 Difficulties created by the Lee case 588 Official immunity today 589 Classification of suits against officers 590 Suits against government corporations 590 Suits between two or more States 591 Boundary disputes; the law applied 591 Modern types of suits between States 592 Cases in which the Court has declined jurisdiction 594 Problem of enforcement; Virginia _v._ West Virginia 595 Controversies between a State and citizens of another State 596 Nonjusticiable controversies 596 Jurisdiction confined to civil cases 597 Suits by a State as parens patriae; jurisdiction declined 597 Suits by a State as parens patriae; jurisdiction accepted 598 Georgia _v._ Pennsylvania Railroad 598 Controversies between citizens of different States 599 The meaning of "State," Hepburn _v._ Ellzey 599 Extension of jurisdiction by act of 1940 600 Citizenship, natural persons 600 Citizenship, corporations 601 Black and White Taxicab case 603 The law applied in diversity cases; Swift _v._ Tyson 603 Extension of the Tyson case 604 The Tyson rule protested 604 Erie Railroad _v._ Tompkins; Tyson case overruled 605 Extension of the Tompkins rule 607 Controversies between citizens of the same State claiming lands under grants of different States 608 Controversies between a State, or the citizens thereof, and foreign States, citizens, or subjects 609 Suits by foreign States 609 Indian tribes 610 Narrow construction of the jurisdiction 610 Clause 2. Original and appellate jurisdiction of the Supreme Court 611 Original jurisdiction of the Supreme Court 611 An autonomous jurisdiction 611 Cannot be enlarged; Marbury _v._ Madison 612 Concurrent jurisdiction of the lower federal courts 613 Appellate jurisdiction of the Supreme Court 614 Subject to limitation by Congress 614 McCardle case 614 Power of Congress to regulate the jurisdiction of lower federal courts 616 Martin _v._ Hunter's lessee 616 Plenary power of Congress over jurisdiction 616 Judicial power under the Emergency Price Control Act 620 Legislative control over writs 621 Injunctions in labor disputes; Norris-LaGuardia Act 621 Judicial power equated with due process of law 622 Judicial versus nonjudicial functions 623 Federal-State court relations 624 Problems raised by concurrency 624 Disobedience of Supreme Court orders by State courts 625 Worcester _v._ Georgia 625 Conflicts of jurisdiction; comity 626 Jurisdiction of the _res_ 626 State interference by injunction with federal jurisdiction 627 Federal interference by injunction with State jurisdiction 628 Federal injunctions against State official action 629 Ex parte Young 630 State interference by habeas corpus proceedings with federal jurisdiction 631 Federal interference, by removal and habeas corpus 632 Comity as a principle of statutory construction 633 Comity as cooperation 634 Early use of State courts in enforcement of federal law 635 Retreat from this practice 636 Resumption of this practice 636 State obligation to enforce federal law 637 Right of foreign corporations to resort to federal courts 638 Clause 3. Trial by jury. [_See_ pp. 878-880 under Amendment VI] 638 Section 3. Treason 638 Clause 1. Treason defined 638 Definition 638 Levying war 639 The Burr trial 640 Aid and comfort to the enemy; the Cramer Case 640 The Haupt Case 641 The Kawakita Case 643 Doubtful State of the law of Treason today 644 Clause 2. Punishment of Treason 645 Corruption of blood and forfeiture 645 JUDICIAL DEPARTMENT Article III Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Characteristics and Attributes of Judicial Power "JUDICIAL POWER" Judicial power, as Justice Miller defined it in 1891, is the power "of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision";[1] or in the words of the Court in Muskrat _v._ United States,[2] it is "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction."[3] Although the terms "judicial power" and "jurisdiction" are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit,[4] or as the "power to entertain the suit, consider the merits and render a binding decision thereon,"[5] the cases and commentaries support and, for that matter, necessitate a distinction between the two concepts. Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.[6] Included with the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,[7] to issue writs in aid of jurisdiction when authorized by statute;[8] to make rules governing their process in the absence of statutory authorizations or prohibitions;[9] inherent equitable powers over their own process to prevent abuse, oppression and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law;[10] the power to appoint masters in chancery, referees, auditors, and other investigators;[11] and to admit and disbar attorneys.[12] "SHALL BE VESTED" The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words "shall be vested." Whereas all of the judicial power of the United States is vested in the Supreme Court and the lower federal judiciary, neither has ever been vested with all the jurisdiction they are capable of receiving under article III. Except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution,[13] two prerequisites to jurisdiction must be present. First, the Constitution must have given the courts the capacity to receive it; second, an act of Congress must have conferred it.[14] FINALITY OF JUDGMENT Since 1792 the federal courts have emphasized finality of judgment as an essential attribute of judicial _power_. In Hayburn's Case[15] a motion for mandamus was filed in the Supreme Court to direct the Circuit Court for the District of Pennsylvania to act upon a petition for a pension under the pensions act which placed the administration of pensions in the judges of the federal courts, but which made the action of the courts on application subject to review by Congress and the Secretary of War. The Court took the case under advisement, but Congress changed the law by the act of February 28, 1793, before decision was rendered. In view of the attitude of the circuit courts of the United States for the districts of New York, North Carolina and Pennsylvania there can be no doubt what the decision would have been. The judges of the circuit courts in each of these districts refused to administer the pensions, because the revisory powers of Congress and the Secretary of War were regarded as making the administration of the law nonjudicial in nature. At the time of this episode, Chief Justice Jay and Justice Cushing were members of the Circuit Court in the New York district, Justices Wilson and Blair in Pennsylvania and Justice Iredell in North Carolina. The Taney Doctrine On these foundations Chief Justice Taney posthumously erected finality into a judicial absolute.[16] The original act creating the Court of Claims provided for an analogous procedure with appeals to the Supreme Court after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for the payment of private claims. However, section 14 of the act provided that no money should be paid out of the Treasury for any claims "till after an appropriation therefor shall be estimated by the Secretary of the Treasury." In Gordon _v._ United States,[17] the Court refused to hear an appeal, probably for the reasons given in Chief Justice Taney's opinion which he did not deliver because of his death before the Court reconvened but which was published many year later.[18] In any event the reiteration of Taney's opinion in subsequent cases made much of it good law. Because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary of the Treasury and of Congress, the Chief Justice regarded it as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress, therefore, could not authorize the Supreme Court to take appeals from an auditor or require it to express an opinion in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. The Chief Justice then proceeded to formulate a rule, repeated in many subsequent cases until modified in 1927 and reversed in 1933, to the effect that the award of execution is a part and an essential part of every judgment passed by a court exercising judicial powers; it was no judgment in the legal sense of the term without it.[19] This rule was given rigid application in Liberty Warehouse Co. _v._ Grannis,[20] where the Supreme Court sustained a district court in refusing to entertain a declaratory proceeding for lack of jurisdiction because such a proceeding was regarded as nonjudicial. One year later, the Court applied the extreme of the rule in Liberty Warehouse _v._ Burley Tobacco Growers Association,[21] when it ruled that it could exercise no appellate jurisdiction in a declaratory proceeding in a State court. Award of Execution Meanwhile in 1927 the Supreme Court began to qualify its insistence upon an award of execution, holding in Fidelity National Bank and Trust Co. _v._ Swope[22] that an award of execution is not an indispensable adjunct of the judicial process. This ruling prepared the way for Nashville, Chattanooga and St. Louis R. Co. _v._ Wallace[23] which reversed the decision in the Grannis case, sustained an appeal from a State court to the Supreme Court in a declaratory proceeding, and effectively interred the rule that award of execution is essential to judicial power. Regardless, nevertheless, of the fate of an award of execution, the rule that finality of judgment is an essential attribute of judicial power remains unimpaired. Ancillary Powers THE CONTEMPT POWER; THE ACT OF 1789 The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign.[24] By the latter part of the eighteenth century summary power to punish was extended to all contempts whether committed in or out of court.[25] In the United States, the Judiciary Act of 1789 in section 17[26] conferred power on all courts of the United States "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same." The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the passage of the act of 1831 limiting the power of the federal courts to punish contempts to misbehavior in the presence of the courts, "or so near thereto as to obstruct the administration of justice," to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.[27] An Inherent Power The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson,[28] where Justice Field for the Court propounded principles full of potentialities for conflict. He declared: "The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they become possessed of this power." Expressing doubts concerning the validity of the act as to the Supreme Court, he declared, however, there could be no question of its validity as applied to the lower courts on the ground that they are created by Congress and that their "powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction."[29] With the passage of time, later adjudications, especially after 1890, came to place more emphasis on the inherent power of courts to punish contempts than upon the power of Congress to regulate summary attachment. By 1911 the Court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.[30] In Michaelson _v._ United States[31] the Supreme Court intentionally placed a narrow interpretation upon those sections of the Clayton Act[32] relating to punishment for contempt of court by disobedience to injunctions in labor disputes. The sections in question provided for a jury trial upon the demand of the accused in contempt cases in which the acts committed in violation of district court orders also constituted a crime under the laws of the United States or of those of the State where they were committed. Although Justice Sutherland reaffirmed earlier rulings establishing the authority of Congress to regulate the contempt power, he went on to qualify this authority and declared that "the attributes which inhere in that power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative." The Court mentioned specifically "the power to deal summarily with contempts committed in the presence of the courts or so near thereto as to obstruct the administration of justice," and the power to enforce mandatory decrees by coercive means.[33] The Contempt Power Exalted The phrase "in the presence of the Court or so near thereto as to obstruct the administration of justice" was interpreted in Toledo Newspaper Co. _v._ United States[34] so broadly as to uphold the action of a district court judge in punishing for contempt a newspaper for publishing spirited editorials and cartoons on questions at issue in a contest between a street railway company and the public over rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but "the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty." Similarly the test of whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but "the reasonable tendency of the acts done to influence or bring about the baleful result * * * without reference to the consideration of how far they may have been without influence in a particular case."[35] In Craig _v._ Hecht[36] these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner which criticized the action of a United States district judge in receivership proceedings. Recession of the Doctrine The decision in the Toledo Newspaper case did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons it was reversed in Nye _v._ United States[37] and the theory of constructive contempt based on the "reasonable tendency" rule rejected in a proceeding wherein defendants in a civil suit, by persuasion and the use of liquor, induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the Court was sitting, and were held not to put the persons responsible for them in contempt of court. Bridges _v._ California Although Nye _v._ United States is exclusively a case of statutory construction, it is significant from a constitutional point of view in that its reasoning is contrary to that of earlier cases narrowly construing the act of 1831 and asserting broad inherent powers of courts to punish contempts independently of and contrary to Congressional regulation of this power. Bridges _v._ California,[38] though dealing with the power of State courts to punish contempts, in the face of the due process clause of the Fourteenth Amendment, is significant for the dictum of the majority that the contempt power of all courts, federal as well as State, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press. Summary Punishment of Contempt; Misbehavior of Counsel There have been three notable cases within the last half century raising questions concerning the power of a trial judge to punish counsel summarily for alleged misbehavior in the course of a trial. In _ex parte_ Terry,[39] decided in 1888, Terry had been jailed by the United States Circuit Court of California for assaulting in its presence a United States marshal. The Supreme Court denied his petition for a writ of habeas corpus. In Cooke _v._ United States,[40] however, decided in 1925, the Court remanded for further proceedings a judgment of the United States Circuit Court of Texas sustaining the judgment of a United States District judge sentencing to jail an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: "The important distinction * * * is that this contempt was not in open court. * * * To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law."[41] The Chief Justice then added: "Another feature of this case seems to call for remark. The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish _v._ United States, 299 F. 283, 285; Toledo Newspaper Co. _v._ United States, 237 F. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows."[42] Contempt Power: Punishment of Counsel; Sacher Case This case[43] is an outgrowth of the trial of the eleven Communists,[44] in which Sacher et al. were counsel for the defense. The facts of the case were as follows: On receiving the verdict of conviction of the defendants, trial Judge Medina at once issued a certificate under Rule 42 (a) of Federal Rules of Criminal Procedure, finding counsel guilty of criminal contempt and imposing various jail terms up to six months. The immediate question raised was whether the contempt charged was one which the judge was authorized to determine for himself, or one which under Rule 42 (b) could only be passed upon by another judge and after notice and hearing; but behind this issue loomed the same constitutional issue which was dealt with by the Court in the Cooke case, of the requirements of due process of law. The Court sustained the Circuit Court of Appeals in affirming the convictions and sentences, at the same time, however, reversing some of Judge Medina's specifications of contempt, one of these being the charge that the petitioners entered into an agreement deliberately to "impair my health." "We hold," said Justice Jackson, speaking for the majority, "that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power. * * * We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar's reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer's calling."[45] Contempt by Disobedience of Orders Disobedience of injunction orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States _v._ United Mine Workers[46] the Court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court's jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. Secondly, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional. Thirdly, on the basis of United States _v._ Shipp,[47] it was held that violations of a court's order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court's jurisdiction or though the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and to punitive measures, which may be imposed in a single proceeding. Criminal Versus Civil Contempts Prior to the United Mine Workers Case, the Court had distinguished between criminal and civil contempts on the basis of the vindication of the authority of the courts on the one hand and the preservation and enforcement of the rights of the parties on the other. A civil contempt consists of the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature and may be purged by obedience to the Court order. In criminal contempt, however, the act of contempt has been completed, punishment is imposed to vindicate the authority of the Court, and a person cannot by subsequent action purge himself of such contempt.[48] In a dictum in Ex parte Grossman,[49] Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, declared that he may not pardon a civil contempt. In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties.[50] Judicial Power Aids Administrative Power Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of Interstate Commerce Commission _v._ Brimson,[51] where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the Interstate Commerce Commission in enforcing compliance with its orders. In 1947 a proceeding to enforce a _subpoena duces tecum_ issued by the Securities and Exchange Commission during the Course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil contempt.[52] POWER TO ISSUE WRITS; THE ACT OF 1789 From the beginning of government under the Constitution of 1789 Congress has assumed under the necessary and proper clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs. The Thirteenth section of the Judiciary Act of 1789 authorized the circuit courts to issue writs of prohibition to the district courts, and the Supreme Court to issue such writs to the circuit courts. The Supreme Court was also empowered to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."[53] Section 14 provided that all courts of the United States should "have power to issue writs of _scire facias_, _habeas corpus_, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."[54] Issuance of the writ of _habeas corpus_ was limited in that it was to extend only to persons in custody under or by color of authority of the United States. Although the act of 1789 left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of Congress is necessary to confer judicial power to issue writs. Common Law Powers of the District of Columbia Courts That portion of section 13 which authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury _v._ Madison,[55] as an unconstitutional enlargement of the Supreme Court's original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of already existing jurisdiction,[56] a litigant was successful in Kendall _v._ United States ex rel. Stokes[57] in finding a court which would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the State which became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers. Habeas Corpus Although the writ of _habeas corpus_ has something of a special status by virtue of article I, section 9, paragraph 2, the power of a specific court to issue the writ has long been held to have its authorization only in written law.[58] In Ex parte Yerger,[59] where the petitioner was held in custody by the military authorities under the Reconstruction Acts, the Court, referring to the prohibition against the suspension of the writ of _habeas corpus_, clearly indicated that Congress is not bound to provide for the protection of federal rights by investing the federal courts with jurisdiction to protect them. Furthermore, the case also incorporates the rule that power to issue the writ may be withdrawn even in pending cases.[60] The rules pertaining to mandamus and _habeas corpus_ are applicable to the other common law and statutory writs, the power to issue which, though judicial in nature, must be derived from the statutes and cannot go beyond them. Congress Limits the Inquisition Power Although the speculations of some publicists and some judicial dicta[61] support the idea of an inherent power of the federal courts sitting in equity to issue injunctions independently of statutory limitations, neither the course taken by Congress nor the specific rulings of the Supreme Court support any such principle. Congress has repeatedly exercised its power to limit the use of the injunction in the federal courts. The first limitation on the equity jurisdiction of the federal courts is to be found in section 16 of the Judiciary Act of 1789, which provided that no equity suit should be maintained where there was a full and adequate remedy at law. Although this provision did no more than declare a pre-existing rule long applied in chancery courts,[62] it did assert the power of Congress to regulate the equity powers of the federal courts. The act of March 2, 1793,[63] prohibited the issuance of any injunction by any court of the United States to stay proceedings in State courts except where such injunctions may be authorized by any law relating to bankruptcy proceedings. In subsequent statutes Congress has prohibited the issuance of injunctions in the federal courts to restrain the collection of taxes;[64] provided for a three-judge court, as a prerequisite to the issuance of injunctions to restrain the enforcement of State statutes for unconstitutionality,[65] for enjoining federal statutes for unconstitutionality,[66] and for enjoining orders of the Interstate Commerce Commission;[67] limited the power to issue injunctions restraining rate orders of State public utility commissions,[68] and the use of injunctions in labor disputes;[69] and placed a very rigid restriction of the power to enjoin orders of the administrator under the Emergency Price Control Act.[70] All of these restrictions have been sustained by the Supreme Court as constitutional and applied with varying degrees of thoroughness. The Court has made exceptions to the application of the prohibition against the stay of proceedings in State courts,[71] but has on the whole adhered to the statute. The exceptions raise no constitutional issues, and the later tendency is to contract the scope of the exceptions.[72] In Duplex Printing Company _v._ Deering,[73] the Supreme Court placed a narrow construction upon the labor provisions of the Clayton Act and thereby contributed in part to the more extensive restriction by Congress of the use of injunctions in labor disputes in the Norris-LaGuardia Act of 1932 which has not only been declared constitutional,[74] but has been applied liberally,[75] and in such a manner as to repudiate the notion of an inherent power to issue injunctions contrary to statutory provisions. Injunctions Under the Emergency Price Control Act of 1942 Lockerty _v._ Phillips[76] justifies the same conclusion. Here the validity of the special appeals procedure of the Emergency Price Control Act of 1942 was sustained. This act provided for a special Emergency Court of Appeals which, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of regulations, orders, and price schedules issued by the Office of Price Administration. The Emergency Court and the Emergency Court alone was permitted to enjoin regulations or orders of OPA, and even it could enjoin such orders only after finding that the order was not in accordance with law, or was arbitrary or capricious. The Emergency Court was expressly denied power to issue temporary restraining orders or interlocutory decrees; and in addition the effectiveness of any permanent injunction it might issue was to be postponed for thirty days. If review was sought in the Supreme Court by certiorari, effectiveness was to be postponed until final disposition. A unanimous court speaking through Chief Justice Stone declared that there "is nothing in the Constitution which requires Congress to confer equity jurisdiction on any particular inferior federal court." All federal courts, other than the Supreme Court, it was asserted, derive their jurisdiction solely from the exercise of the authority to ordain and establish inferior courts conferred on Congress by article III, § 1, of the Constitution. This power, which Congress is left free to exercise or not, was held to include the power "'of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.'"[77] Although the Court avoided passing upon the constitutionality of the prohibition against interlocutory decrees, the language of the Court was otherwise broad enough to support it, as was the language of Yakus _v._ United States[78] which sustained a different phase of the special procedure for appeals under the Emergency Price Control Act. THE RULE-MAKING POWER AND POWERS OVER PROCESS Among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the orderly conduct of their business.[79] However, this power too is derived from the statutes and cannot go beyond them. The landmark case is Wayman _v._ Southard[80] which sustained the validity of the process acts of 1789 and 1792 as a valid exercise of authority under the necessary and proper clause. Although Chief Justice Marshall regarded the rule-making power as essentially legislative in nature, he ruled that Congress could delegate to the courts the power to vary minor regulations in the outlines marked out by the statute. Fifty-seven years later in Fink _v._ O'Neil,[81] in which the United States sought to enforce by summary process the payment of a debt, the Supreme Court ruled that under the process acts the law of Wisconsin was the law of the United States and hence the Government was required to bring a suit, obtain a judgment, and cause execution to issue. Justice Matthews for a unanimous Court declared that the courts have "no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction, except as the law confers and limits it." Limits to the Power The principal function of court rules is that of regulating the practice of courts as regards forms, the operation and effect of process, and the mode and time of proceedings. However, rules are sometimes employed to state in convenient form principles of substantive law previously established by statutes or decisions. But no such rule "can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law." This rule is applicable equally to courts of law, equity, and admiralty, to rules prescribed by the Supreme Court for the guidance of lower courts, and to rules "which lower courts make for their own guidance under authority conferred."[82] As incident to the judicial power, courts of the United States possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by self-preserving rules for the protection of the rights of litigants and the orderly administration of justice.[83] The courts of the United States possess inherent equitable powers over their process to prevent abuse, oppression and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.[84] Such powers are said to be essential to and inherent in the organization of courts of justice.[85] The courts of the United States also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.[86] APPOINTMENT OF REFEREES, MASTERS, AND SPECIAL AIDS The administration of insolvent enterprises, investigations into the reasonableness of public utility rates, and the performance of other judicial functions often require the special services of masters in chancery, referees, auditors, and other special aids. The practice of referring pending actions to a referee was held in Heckers _v._ Fowler[87] to be coeval with the organization of the federal courts. In the leading case of Ex parte Peterson[88] a United States district court appointed an auditor with power to compel the attendance of witnesses and the production of testimony. The Court authorized him to conduct a preliminary investigation of facts and file a report thereon for the purpose of simplifying the issues for the jury. This action was neither authorized nor prohibited by statute. In sustaining the action of the district judge, Justice Brandeis, speaking for the Court, declared: "Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. * * * This power includes authority to appoint persons unconnected with the Court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause."[89] The power to appoint auditors by federal courts sitting in equity has been exercised from their very beginning, and here it was held that this power is the same whether the Court sits in law or equity. THE POWER TO ADMIT AND DISBAR ATTORNEYS Subject to general statutory qualifications for attorneys, the power of the federal courts to admit and disbar attorneys rests on the common law from which it was originally derived. According to Chief Justice Taney, it was well settled by the common law that "it rests exclusively with the Court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed." Such power, he made clear, however, "is not an arbitrary and despotic one, to be exercised at the pleasure of the Court, or from passion, prejudice, or personal hostility; but it is the duty of the Court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the Court, as the right and dignity of the Court itself."[90] The Test-Oath Act of July 2, 1862, which purported to exclude former Confederates from the practice of law in the federal courts, was invalidated in Ex parte Garland.[91] In the course of his opinion for the Court, Justice Field discussed generally the power to admit and disbar attorneys. The exercise of such a power, he declared, is judicial power. The attorney is an officer of the Court and though Congress may prescribe qualifications for the practice of law in the federal courts, it may not do so in such a way as to inflict punishment contrary to the Constitution or to deprive a pardon of the President of its legal effect.[92] Organization of Courts, Tenure and Compensation of Judges "ONE SUPREME COURT" The Constitution is almost completely silent concerning the organization of the federal judiciary. Although it provides for one Supreme Court, it makes no reference to the size and composition of the Court, the time or place for sitting, or its internal organization save for the reference to the Chief Justice in the impeachment provision of article I, § 3, relating to impeachment of the President. All these matters are therefore confided to Congressional determination. Under the terms of the Judiciary Act of 1789, the Court consisted of a Chief Justice and five Associate Justices. This number was gradually increased until it reached a total of ten judges under the act of March 3, 1863. Due to the exigencies of Reconstruction and the tension existing between Congress and the President the number was reduced to seven as vacancies should occur, by the act of April 16, 1866. The number never actually fell below eight, and on April 10, 1869, with Andrew Johnson out of the White House, Congress restored the number to nine, where it has since remained. There have been proposals at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator Wheeler of March 21, 1937, expressed doubts concerning the validity of such a device and stated that "the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts."[93] Congress has also determined the time and place of sessions of the Court, going so far in 1801 as to change its terms so that for fourteen months, between December, 1801 and February, 1803 the Court did not convene. INFERIOR COURTS MADE AND ABOLISHED By article I, § 8, paragraph 9, Congress is expressly declared to have the power to constitute tribunals inferior to the Supreme Court, and the power is repeated in a different formula in article III, § 1, when provision is also made for tenure during good behavior and for a compensation which shall not be diminished. Since 1789 Congress, with repeated judicial acquiescence and concurrence, has interpreted both of these sections as leaving it free to establish inferior courts or not, as it deems fit in the exercise of a boundless discretion. By the Judiciary Act of 1789, Congress constituted thirteen district courts which were to have four sessions annually[94] and three circuit courts which were to consist jointly of the Supreme Court judges and the district judge of such districts which were to meet annually at the time and places designated by the statute.[95] By the Judiciary Act of February 13, 1801, passed in the closing weeks of the Adams Administration, the number of judges of the Supreme Court was to be reduced to five after the next vacancy, the districts were reorganized, and six circuit courts consisting of three judges each and organized independently of the Supreme Court and the district courts were created.[96] Whatever merits this plan of organization possessed were lost in the fierce partisanship of the period, which led the expiring Federalist Administration to appoint Federalists almost exclusively to the new judgeships to the dismay of the Jeffersonians who, upon coming into power, set plans in motion to repeal the act. In a bitter debate the major constitutional issue to emerge centered about the abolition of courts once they were created in the light of the provision for tenure during good behavior. Suffice it to say, the repeal bill was passed and approved by the President on March 8, 1802[97] without any provision for the displaced judges. The validity of the act of 1802 was questioned in Stuart _v._ Laird,[98] where Justice Paterson in a terse opinion, which hardly touched Charles Lee's argument that Congress lacked power to abolish or destroy courts and judges, held for the Court that Congress has the power to establish inferior courts from time to time as it may think proper and to transfer a cause from one tribunal to another. In answer to the argument that Supreme Court Justices could not constitutionally sit as circuit judges, he pointed to practice and acquiescence contemporaneous with the Constitution as an interpretation too strong and obstinate to be shaken or controlled. Abolition of the Commerce Court Since 1802 Congress has many times exercised its power to constitute inferior courts, but not until 1913 did it again abolish a court. This was the unfortunately launched Commerce Court from which so much was expected and so little came. Again, as in 1802, there was a constitutional debate on the power of Congress to abolish courts without providing for the displaced judges, but unlike the act of 1802 the act of 1913[99] provided for the redistribution of the Commerce Court judges among the Circuit Courts of Appeals and the transfer of its jurisdiction to the district courts.[100] COMPENSATION The prohibition against the diminution of judicial salaries has presented very little litigation. In 1920 in Evans _v._ Gore[101] the Court invalidated the application of the Income Tax as applied to a federal judge, over the strong dissent of Justice Holmes, who was joined by Justice Brandeis. This ruling was extended in Miles _v._ Graham[102] to exempt the salary of a judge of the Court of Claims appointed subsequent to the enactment of the taxing act. Evans _v._ Gore was disapproved and Miles _v._ Graham in effect overruled in O'Malley, Collector of Internal Revenue _v._ Woodrough,[103] where the Court upheld section 22 of the Revenue Act of 1932 (now 26 U.S.C.A. 22 (a)) which extended the application of the Income Tax to salaries of judges taking office after June 6, 1932. Such a tax was regarded neither as an unconstitutional diminution of the compensation of judges nor as an encroachment on the independence of the judiciary.[104] To subject judges who take office after a stipulated date to a nondiscriminatory tax laid generally on an income, said the Court, "is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering."[105] Diminution of Salaries The Appropriations Act of 1932 reduced "the salaries and retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office)," by 8-1/3 per cent if below $10,000, or to $10,000 if above that figure. While this provision presented no questions of its own constitutionality, it did raise the question of what judges' salaries could be constitutionally reduced. In O'Donoghue _v._ United States[106] the section was held inapplicable to the salaries of judges of the courts of the District of Columbia on the ground that as to their organization and tenure and compensation, Congress was limited by the provisions of article III. In Williams _v._ United States,[107] on the other hand, it was ruled that the reduction was applicable to the salaries of the judges of the Court of Claims, that being a legislative court created in pursuance of the power of Congress to pay the debts of the United States and to consent to suits against the United States. As such it is not within the provisions of article III respecting the tenure and compensation of judges. COURTS OF SPECIALIZED JURISDICTION By virtue of its power "to ordain and establish" courts Congress has occasionally created courts under article III to exercise a specialized jurisdiction. Otherwise these tribunals are like other article III courts in that they exercise "the judicial power of the United States," and only that power, that their judges must be appointed by the President and the Senate and must hold office during good behavior subject to removal by impeachment only, and that the compensation of their judges cannot be diminished during their continuance in office. One example of such courts was the Commerce Court created by the Mann-Elkins Act of 1910,[108] which was given exclusive jurisdiction of all cases to enforce orders of the Interstate Commerce Commission except those involving money penalties and criminal punishment; of cases brought to enjoin, annul, or set aside orders of the Commission; of cases brought under the act of 1903 to prevent unjust discriminations; and of all mandamus proceedings authorized by the act of 1903. This court actually functioned for less than three years, being abolished in 1913, as was mentioned above. The Emergency Court of Appeals of 1942 Another court of specialized jurisdiction but created for a limited time only was the Emergency Court of Appeals organized by the Emergency Price Control Act of January 30, 1942.[109] By the terms of the statute this court consisted of three or more judges designated by the Chief Justice from the judges of the United States district courts and circuit courts of appeal. The Chief Justice was authorized to designate one of the judges as chief judge, to designate additional judges from time to time, and to revoke designations. The chief judge in turn was authorized to divide the Court into divisions of three or more members each, with any such division empowered to render judgment as the judgment of the Court. The Court was vested with jurisdiction and powers of a district court to hear appeals filed within thirty days against denials of protests by the Price Administrator and with exclusive jurisdiction to set aside regulations, orders, or price schedules, in whole or in part, or to remand the proceeding. But no regulation or price schedule could be set aside or enjoined unless the Court was satisfied that it was contrary to law or was arbitrary or capricious. Even then the effectiveness of a restraining order was to be suspended for thirty days and, if appealed to the Supreme Court within thirty days, until its final disposition. Although the act deprived the district courts of the power to enjoin the enforcement of orders and price schedules, it vested them with jurisdiction to enforce the act and orders issued thereunder in actions brought by the Administrator to enjoin violations and to try criminal prosecutions brought by the Attorney General. Since the Emergency Court of Appeals, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of any order issued under the act, it resulted that the district courts were deprived of the power to inquire into the validity of orders involved in civil or criminal proceedings in which they had jurisdiction.[110] Judicial Review Restrained In Yakus _v._ United States[111] the Court held in an opinion by Chief Justice Stone that there is "no principle of law or provision of the Constitution which precludes Congress from making criminal the violation of an administrative regulation, by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity, or which precludes the practice, in many ways desirable, of splitting the trial for violations of an administrative regulation by committing the determination of the issue of its validity to the agency which created it, and the issue of violation to a court which is given jurisdiction to punish violations. Such a requirement presents no novel constitutional issue."[112] In a dissent Justice Rutledge took issue with this holding, saying: "It is one thing for Congress to withhold jurisdiction. It is entirely another to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements or, what in some instances may be the same thing, without regard to them. Once it is held that Congress can require the courts criminally to enforce unconstitutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circumvent the supreme law and, what is more, to make the courts parties to doing so. This Congress cannot do. There are limits to the judicial power. Congress may impose others. And in some matters Congress or the President has final say under the Constitution. But whenever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it. The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process, more especially in criminal trials."[113] LEGISLATIVE COURTS: THE CANTER CASE Quite distinct from special courts exercising the judicial power of the United States, but at the same time a significant part of the federal judiciary, are the legislative courts, so called because they are created by Congress in pursuance of its general legislative powers. The distinction between constitutional courts and legislative courts was first made in American Insurance Company _v._ Canter,[114] which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Said Chief Justice Marshall for the Court: "These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3rd article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States."[115] The Court went on to hold that admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of article III, but that the same limitation does not apply to the territorial courts; for, in legislating for them, "Congress exercises the combined powers of the general, and of a State government."[116] Other Legislative Courts The distinction made in the Canter case has been repeated with elaborations since 1828, receiving its fullest exposition in Ex parte Bakelite Corporation,[117] which contains a review of the history of legislative courts and the cases supporting the power of Congress to create them. In addition to discussing the derivation of power to establish legislative courts, the Bakelite case ruled that such courts "also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within Congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals."[118] Among the matters susceptible of judicial determination but not requiring it are claims against the States,[119] the disposal of the public lands and claims arising therefrom,[120] questions concerning membership in the Indian tribes,[121] and questions arising out of the administration of the customs and internal revenue laws.[122] For the determination of these matters Congress has created the Court of Claims, the Court of Private Land Claims, the Choctaw and Chickasaw Citizenship Court, the Court of Customs, the Court of Customs and Patent Appeals, and the Tax Court of the United States (formerly the Board of Tax Appeals). Power of Congress Over Legislative Courts In creating legislative courts Congress is not limited by the restrictions imposed in article III concerning tenure during good behavior and the prohibition against limitation of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court of the United States, and it may subject the judges of legislative courts to removal by the President.[123] In McAllister _v._ United States,[124] the removal of a territorial judge was sustained on the basis of the principle that: "The whole subject of the organization of territorial courts, the tenure by which the judges of such courts shall hold their offices, the salary they receive and the manner in which they may be removed or suspended from office, was left, by the Constitution, with Congress under its plenary power over the Territories of the United States."[125] Long afterwards the Court held in Williams _v._ United States[126] that the reduction of the salaries of the judges of the Court of Claims, and inferentially of judges of other legislative courts, to $10,000 per year by the Appropriation Act of June 30, 1932, was constitutional. In so doing the Court rejected dicta in earlier cases which classified the Court of Claims as a constitutional court and silently reversed Miles _v._ Graham,[127] which had held that Congress could not include the salary of a judge of the Court of Claims in his taxable income. Status of the Court of Claims It follows, too, that in creating legislative courts, Congress can vest in them nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus in Gordon _v._ United States[128] there was no objection to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims. Likewise in United States _v._ Ferreira[129] the Court sustained the act conferring powers on the Florida territorial court to examine claims arising under the Spanish treaty and to report his decisions and the evidence on which they were based to the Secretary of the Treasury for subsequent action. "A power of this description," it was said, "may constitutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States." A Judicial Paradox Chief Justice Taney's view in the Gordon case that the judgments of legislative courts could never be reviewed by the Supreme Court was tacitly rejected in De Groot _v._ United States,[130] when the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision of this case in 1867 the authority of the Supreme Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts, but rather upon the nature of the proceeding before the lower Court and the finality of its judgment. Consequently in proceedings before a legislative court which are judicial in nature and admit of a final judgment the Supreme Court may be vested with appellate jurisdiction. Thus there arises the workable anomaly that though the legislative courts can exercise no part of the judicial power of the United States and the Supreme Court can exercise only that power, the latter nonetheless can review judgments of the former. However, it should be emphasized that the Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such courts.[131] STATUS OF THE COURTS OF THE DISTRICT OF COLUMBIA Through a long course of decisions the courts of the District of Columbia were regarded as legislative courts upon which Congress could impose nonjudicial functions. In Butterworth _v._ United States ex rel. Hoe,[132] the Court sustained an act of Congress which conferred revisionary powers upon the Supreme Court of the District in patent appeals and made its decisions binding only upon the Commissioner of Patents. Similarly, the Court later sustained the authority of Congress to vest revisionary powers in the same court over rates fixed by a public utilities commission.[133] Not long after this the same rule was applied to the revisionary power of the District Supreme Court over orders of the Federal Radio Commission.[134] These rulings were based on the assumption, express or implied, that the courts of the District were legislative courts, created by Congress in pursuance of its plenary power to govern the District of Columbia. In an obiter dictum in Ex parte Bakelite Corporation,[135] while reviewing the history and analyzing the nature of legislative courts, the Court stated that the courts of the District were legislative courts. In 1933, nevertheless, the Court, abandoning all previous dicta on the subject, found the courts of the District of Columbia to be constitutional courts exercising judicial power of the United States,[136] with the result of shouldering the task of reconciling the performance of nonjudicial functions by such courts with the rule that constitutional courts can exercise only the judicial power of the United States. This task was easily accomplished by the argument that in establishing courts for the District, Congress is performing dual functions in pursuance of two distinct powers, the power to constitute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. However, article III, § 1, limits this latter power with respect to tenure and compensation, but not with regard to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Constitution, "Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a State legislature has in conferring jurisdiction on its courts."[137] The effect of the O'Donoghue decision is to confer a dual status on the courts of the District of Columbia. As regards their organization, and the tenure and compensation of their judges they are constitutional courts, as regards jurisdiction and powers they are simultaneously legislative and constitutional courts, and as such can be vested with nonjudicial powers while sharing the judicial power of the United States.[138] Jurisdiction: Cases and Controversies Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. THE TWO CLASSES OF CASES AND CONTROVERSIES By the terms of the foregoing section the judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens _v._ Virginia:[139] "In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends 'all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' This cause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more States, between a State and citizens of another State,' and 'between a State and foreign States, citizens or subjects.' If these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union."[140] Judicial power is "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."[141] The meaning attached to the terms "cases" and "controversies" determines therefore the extent of the judicial power, as well as the capacity of the federal courts to receive jurisdiction. As Chief Justice Marshall declared in Osborn _v._ Bank of the United States, judicial power is capable of acting only when the subject is submitted in a case, and a case arises only when a party asserts his rights "in a form prescribed by law."[142] Many years later Justice Field, relying upon Chisholm _v._ Georgia,[143] and Tucker's edition of Blackstone, amended this definition by holding that "controversies," to the extent that they differ from "cases," include only suits of a civil nature. He continued: "By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication."[144] The definitions propounded by Chief Justice Marshall and Justice Field were quoted with approval in Muskrat _v._ United States,[145] where the Court held that the exercise of judicial power is limited to cases and controversies and emphasized "adverse litigants," "adverse interests," an "actual controversy," and conclusiveness or finality of judgment as essential elements of a case.[146] ADVERSE LITIGANTS The necessity of adverse litigants with real interests has been stressed in numerous cases,[147] and has been particularly emphasized in suits to contest the validity of a federal or State statute. A few illustrations will suffice to describe the practical operation of these limitations. In Chicago and Grand Trunk Railroad Co. _v._ Wellman,[148] which originated in the courts of Michigan on an agreed statement of facts between friendly parties desiring to contest a rate-making statute, the Supreme Court ruled there was no case or controversy. In the course of its opinion, which held that the courts have no "immediate and general supervision" of the constitutionality of legislative enactments, the Court said: "Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."[149] In applying the rule requiring adverse litigants to present an honest and actual antagonistic assertion of rights, the Court invalidated an act of Congress which authorized certain Indians to bring suits against the United States to test the constitutionality of the Indian allotment acts, on the ground that such a proceeding was not a case or controversy in that the United States had no interest adverse to the claimants.[150] The Court has also held that in contesting the validity of a statute, the issue must be raised by one adversely affected and not a stranger to the operation of the statute,[151] and that the interest must be of a personal as contrasted with an official interest.[152] Hence a county court cannot contest the validity of a statute in the interest of third parties,[153] nor can a county auditor contest the validity of a statute even though he is charged with its enforcement,[154] nor can directors of an irrigation district occupy a position antagonistic to it.[155] It is a well settled rule that: "The Court will not pass upon the constitutionality of legislation * * *, or upon the complaint of one who fails to show that he is injured by its operation, * * *"[156] It is equally well established as a corollary that, "litigants may challenge the constitutionality of a statute only insofar as it affects them."[157] STOCKHOLDERS' SUITS It must be noted, however, that adversity is a relative element which the courts may or may not discover. Thus in Pollock _v._ Farmers' Loan and Trust Co.,[158] the Supreme Court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing section 3224 of the Revised Statutes, which forbids the maintenance in any court of a suit "for the purpose of restraining the collection of any tax."[159] Subsequently the Court has found adversity of parties in a suit brought by a stockholder to restrain a title company from investing its funds in farm loan bonds issued by the federal land banks,[160] and in a suit brought by certain preferred stockholders against the Alabama Power Company and the TVA to enjoin the performance of contracts between the company and the authority and a subsidiary, the Electric Home and Farm Authority, on the ground that the act creating these agencies was unconstitutional.[161] The ability to find adversity in narrow crevices of casual disagreement is well illustrated by Carter _v._ Carter Coal Co.,[162] where the President of the company brought suit against the company and its officials, among whom was Carter's father who was Vice President of the Company.[163] The Court entertained the suit and decided the case on its merits. SUBSTANTIAL INTEREST DOCTRINE Equally important as an essential element of a case is the concept of real or substantial interests. As a general rule the interest of taxpayers in the general funds of the federal Treasury is insufficient to give them a standing in court to contest the expenditure of public funds on the ground that this interest "is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity."[164] Likewise, the Court has held that the general interest of a citizen in having the government administered by law does not give him a standing to contest the validity of governmental action.[165] Nor can a member of the bar of the Supreme Court challenge the validity of an appointment to the Court since his "is merely a general interest common to all members of the public."[166] Similarly an electric power company has been held not to have a sufficient interest to maintain an injunction suit to restrain the making of federal loans and grants to municipalities for the construction or purchase of electric power distribution plants on the ground that the "lender owes the sufferer no enforcible duty to refrain from making the unauthorized loan; and the borrower owes him no obligation to refrain from using the proceeds in any lawful way the borrower may choose."[167] Recent cases, involving the issue of religion in the schools, reach somewhat divergent results. In Illinois ex rel. McCollum _v._ Board of Education,[168] the Court held that a litigant had the requisite standing to bring a mandamus suit challenging, on the basis of her interests as a resident and taxpayer of the school district and the parent of a child required by law to attend the school or one meeting the State's educational requirements, the validity of a religious education program involving the use of public school rooms one half hour each week. But in Doremus _v._ Board of Education,[169] decided early in 1952, the Court declined jurisdiction in a case challenging the validity of a New Jersey statute which requires the reading at the opening of each public school day of five verses of the Old Testament. Appellants' interest as taxpayers was found to be insufficient to sustain the proceeding. Substantial Interest in Suits by States These principles have been applied in a number of cases to which a State was one of the parties and in suits between States. One of the most important of these is State of Georgia _v._ Stanton,[170] which was an original suit in equity brought by the State of Georgia against the Secretary of War and others to enjoin the enforcement of the Reconstruction Acts. The State's counsel contended that enforcement of the acts brought about "an immediate paralysis of all the authority and power of the State government by military force; * * * [which was divesting the State] of her legally and constitutionally established and guaranteed existence as a body politic and a member of the Union." The Supreme Court dismissed the suit for want of jurisdiction, holding that for a case to be presented for the exercise of the judicial power, the rights threatened "must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity."[171] The rule of the Stanton case was applied and elaborated in Massachusetts _v._ Mellon,[172] where the State in its own behalf and as _parens patriae_ sought to enjoin the administration of the Maternity Act[173] which, it was alleged, was an unconstitutional invasion of the reserved rights of the State and an impairment of its sovereignty. The suit was held not justiciable on the ground that a State cannot maintain a suit either to protect its political rights or as _parens patriae_ to protect citizens of the United States against the operation of a federal law. Concerning the right of a State to sue in its own behalf to protect its political rights, the Court said: "In that aspect of the case we are called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government."[174] However, these holdings do not affect the right of a State as _parens patriae_ to intervene in behalf of the economic welfare of its citizens against discriminatory rates set by an alleged illegal combination of carriers,[175] or the right of a State to assert its quasi sovereign rights over wild life within its domain,[176] or to protect its citizens against the discharge of noxious gases by an industrial plant in an adjacent State.[177] ABSTRACT, CONTINGENT, AND HYPOTHETICAL QUESTIONS Closely related to the requirements of adverse parties and substantial interests is that of a _real_ issue as contrasted with _speculative_, abstract, hypothetical, or moot cases. As put by Chief Justice Stone in Alabama State Federation of Labor _v._ McAdory,[178] it has long been the Court's "considered practice not to decide abstract, hypothetical or contingent questions," or as Justice Holmes said years earlier by way of dictum, a party cannot maintain a suit "for a mere declaration in the air."[179] Texas _v._ Interstate Commerce Commission,[180] presents a good illustration of an abstract question. Here, Texas attempted to enjoin the enforcement of the Transportation Act of 1920 on the ground that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: "It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power."[181] Again in Ashwander _v._ Tennessee Valley Authority,[182] the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company because, "The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining." Chief Justice Hughes cited New York _v._ Illinois,[183] where the Court dismissed a suit as presenting abstract questions "as to the possible effect of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future."[184] He also cited among other cases Arizona _v._ California,[185] where it was held that claims based merely upon assumed potential invasions of rights were not enough to warrant judicial intervention. The concepts of real interests and abstract questions again appear prominently in United Public Workers of America _v._ Mitchell.[186] Here a number of government employees sued to enjoin the Civil Service Commission from enforcing the prohibitions of the Hatch Act against activity in political management or campaigns, and to obtain a declaratory judgment that the act was invalid. Except for one of the employees none had violated the act, but they did state that they desired to engage in the forbidden political activities. The Court held that as to all the parties save the one who had violated the act there was no justiciable controversy. "Concrete legal issues, presented in actual cases, not abstractions" were declared to be requisite. The generality of their objection was regarded as really an attack on the political expediency of the Hatch Act.[187] From the rule that courts will not render advisory opinions or write essays in political theory on speculative issues, it follows logically that they will not determine moot cases or suits arranged by collusion between parties who have no opposing interests. A moot case has been defined as "one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy."[188] Cases may become moot because of a change in the law, or the status of the litigants, or because of some act of the parties which dissolves the controversy.[189] Just as courts will not speculate an hypothetical question, so they will not analyze dead issues.[190] The duty of every federal court, said Justice Gray, "is to decide actual controversies by a judgment which can be carried into effect, and not give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter at issue in the case before it."[191] POLITICAL QUESTIONS The rule has been long established that the courts have no general supervisory power over the executive or administrative branches of government.[192] In Decatur _v._ Paulding,[193] which involved an attempt by mandamus to compel the Secretary of the Navy to pay a pension, the Supreme Court in sustaining denial of relief stated: "The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them."[194] It follows, therefore, that mandamus will lie against an executive official only to compel the performance of a ministerial duty which admits of no discretion as contrasted with executive or political duties which admit of discretion.[195] It follows, too, that an injunction will not lie against the President,[196] or against the head of an executive department to control the exercise of executive discretion.[197] These principles are well illustrated by Georgia _v._ Stanton,[198] Mississippi _v._ Johnson,[199] and Kendall _v._ United States ex rel. Stokes.[200] Origin of the Concept The concept of "political question" is an old one. As early as Marbury _v._ Madison,[201] Chief Justice Marshall stated: "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." The concept, as distinguished from that of interference with executive functions, was first elaborated in Luther _v._ Borden,[202] which involved the meaning of "a republican form" of government and the question of the lawful government of Rhode Island among two competing groups purporting to act as the lawful authority. "It is the province of a court to expound the law, not to make it," declared Chief Justice Taney. "And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, * * *; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision."[203] The Court went on to hold that such matters as the guaranty to a State of a republican form of government and of protection against invasion and domestic violence are political questions committed to Congress and the President whose decisions are binding upon the courts.[204] Exemplifications of the Doctrine From this case and later applications of it, a political question may be defined as a question relating to the possession of political power, of sovereignty, of government, the determination of which is vested in Congress and the President whose decisions are conclusive upon the courts. The more common classifications[205] of cases involving political questions are: (1) those which raise the issue of what proof is required that a statute has been enacted,[206] or a constitutional amendment ratified;[207] (2) questions arising out of the conduct of foreign relations;[208] (3) the termination of wars,[209] or rebellions;[210] the questions of what constitutes a republican form of government,[211] and the right of a state to protection against invasion or domestic violence;[212] questions arising out of political actions of States in determining the mode of choosing presidential electors,[213] State officials,[214] and reapportionment of districts for Congressional representation;[215] and suits brought by States to test their political and so-called sovereign rights.[216] The leading case on the evidence required to prove the enactment of a statute is Field _v._ Clark,[217] where it was held that the enactment of a statute is conclusively proved by the enrolled act signed by the speaker of the House of Representatives and the President of the Senate, and the Court will not look beyond these formalities of record by examining the journals of the two houses of Congress or other records. Similarly, the Court has held that the efficacy of the ratification of a proposed constitutional amendment in the light of previous rejection or subsequent attempted withdrawal is political in nature, pertaining to the political departments, with the ultimate authority in Congress by virtue of its control over the promulgation of the adoption of amendments.[218] Simultaneously, the Court ruled that the question of the lapse of a reasonable length of time between proposal and ratification is for Congress to determine and not the Court.[219] Recent Cases A few cases will suffice to illustrate the application of the concept of political questions since 1938. In Colegrove _v._ Green,[220] a declaratory judgment was sought to have the division of Illinois into Congressional districts declared invalid as a violation of the equal protection of the laws. Justice Frankfurter in announcing the judgment of the Court, in an opinion in which Justices Reed and Burton joined, was of the opinion that dismissal of the suit was required both by the decision in Wood _v._ Broom,[221] that there is no federal requirement that Congressional districts shall contain as nearly as practicable an equal number of inhabitants, and because the question was not justiciable. Justice Rutledge thought that Smiley _v._ Holm[222] indicated that the question was justiciable but concurred in the result on the ground that the case was one in which the courts should decline to exercise jurisdiction.[223] Justice Black in a dissent supported by Justices Douglas and Murphy thought that the case was justiciable and would have invalidated the reapportionment, leaving the State free to elect all of its representatives from the State at large.[224] In MacDougall _v._ Green,[225] however, the Court seemed to regard as justiciable the question of the validity of the provision of the Illinois Election Code requiring that a petition for the nomination of candidates of a new political party be signed by 25,000 voters including at least 200 from each of at least 50 of the States' 102 counties, for it went on to sustain the provision in a brief _per curiam_ opinion. In Ludecke _v._ Watkins,[226] the Court held, as it had earlier, that the determination of the cessation of a state of war is a question for the political branch of the Government and not for the courts. Nevertheless, the Court actually found a state of war to exist between the United States and Germany after the end of hostilities, and ruled that an enemy alien is not entitled to judicial review in a deportation proceeding. Very recently in South _v._ Peters,[227] the Court refused to pass upon the validity of the county unit scheme used in Georgia for the nomination of candidates in primary elections. ADVISORY OPINIONS Perhaps no portion of Constitutional Law pertaining to the judiciary has evoked such unanimity as the rule that the federal courts will not render advisory opinions. In 1793 the Supreme Court refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution. After convening the Court which considered the request, Chief Justice Jay replied to President Washington concerning the functions of the three departments of government: "These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been _purposely_ as well as expressly united to the _Executive_ departments."[228] Since 1793 the Court has frequently reiterated the early view that the federal courts organized under article III cannot render advisory opinions or that the rendition of advisory opinions is not a part of the judicial power of the United States.[229] Even in the absence of this early precedent, the rule that constitutional courts will render no advisory opinions would have logically emerged from the rule subsequently developed, that constitutional courts can only decide cases and controversies in which an essential element is a final and binding judgment on the parties. As stated by Justice Jackson, when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action, "To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form--advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President's exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action."[230] The early refusal of the Court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,[231] or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government,[232] or where the issues involved were abstract or contingent.[233] DECLARATORY JUDGMENTS The rigid emphasis placed upon such elements of the judicial power as finality of judgment and an award of execution in United States _v._ Ferreira,[234] Gordon _v._ United States[235], and Liberty Warehouse _v._ Grannis,[236] coupled with the equally rigid emphasis upon adverse parties and real interests as essential elements of a case or controversy in Muskrat _v._ United States,[237] created serious doubts concerning the validity of a proposed federal declaratory judgment act. These were dispelled to some extent by Fidelity National Bank _v._ Swope,[238] which held that an award of execution is not an essential part of every judgment and contained general statements in opposition to the principles of the Grannis and Willing cases. Then in 1933 the Supreme Court entertained an appeal from a declaratory judgment rendered by the Tennessee Courts in Nashville, C. & St. L.R. Co. _v._ Wallace,[239] and in doing so declared that the Constitution does not require that a case or controversy be presented by traditional forms of procedure, involving only traditional remedies, and that article III defined and limited judicial power not the particular method by which that power may be invoked or exercised. The Federal Declaratory Judgments Act of 1934 was in due course upheld in Aetna Life Insurance Co. _v._ Haworth,[240] as a valid exercise of Congressional power over the practice and procedure of federal courts which includes the power to create and improve as well as to abolish or restrict. The Declaratory Judgment Act of 1934 The act of 1934 was carefully drawn, and provided that: "In cases of actual controversy the courts of the United States shall have power * * * to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." The other two sections provided for further relief whenever necessary and proper and for jury trials of matters of fact.[241] In the first case involving private parties exclusively to arise under the act, Aetna Life Insurance Co. _v._ Haworth,[242] the Court held that a declaration should have been issued by the district court, although it reiterated with the usual emphasis the necessity of adverse parties, a justiciable controversy and specific relief. In the Ashwander case it approved the refusal of the lower Court to issue a declaration generally on the constitutionality of the Tennessee Valley Authority, because the act of 1934 applied only to "cases of actual controversy." In the same case the Court itself refused to pass upon the navigability of the New and Kanawha rivers and the authority of the Federal Power Commission even at the request of the United States, on the ground that the bill did no more than state a difference of opinion between the United States and West Virginia to which the judicial power did not extend.[243] Similarly, in Electric Bond & Share Co. _v._ Securities and Exchange Commission,[244] the Court refused to decide any constitutional issues arising out of the Public Utility Holding Company Act of 1935 except the registration provisions because the cross bill in which the company had asked for a declaration that the whole act was unconstitutional was regarded as presenting a variety of hypothetical questions that might never become real. The "Case" or "Controversy" Test in Declaratory Judgment Proceedings The insistence of the Court upon the rule that "the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit,"[245] and the fact that many actions for a declaration of rights have involved the validity of legislation, where the Court is even more insistent upon the essentials of a case, have done much to limit the use of the declaratory judgment. There are, nevertheless, a number of cases, some of which involved constitutional issues, in which a declaratory judgment has been rendered. Among these are Currin _v._ Wallace,[246] where tobacco warehousemen and auctioneers contested the validity of the Tobacco Inspection Act under which the Secretary of Agriculture had already designated a tobacco market for inspection and grading; Perkins _v._ Elg,[247] where a natural-born citizen of naturalized parents who left the country during her minority sought to establish her status as a citizen; Maryland Casualty Co. _v._ Pacific Coal and Oil Co.,[248] where a liability insurer sought to establish his lack of liability in an automobile collision case; and Aetna Life Insurance Co. _v._ Haworth,[249] where a declaration was sought under the disability benefit clauses of an insurance policy. As stated by Justice Douglas for the Court in the Maryland Casualty case: "The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."[250] It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even, then, however, the Court is under no compulsion to exercise its jurisdiction.[251] Cases Arising Under the Constitution, Laws and Treaties of the United States DEFINITION Cases arising under the Constitution are cases which require an interpretation of the Constitution for their correct decision.[252] They arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a State legislature, and asks for judicial relief. The clause furnishes the textual basis for the fountain-head of American Constitutional Law, in the strict sense of the term, which fountain-head is Judicial Review, or the power and duty of the courts to pass upon the constitutional validity of legislative acts which they are called upon to recognize and enforce in cases coming before them, and to declare void and refuse enforcement to such as do not accord with their own interpretation of the Constitution. JUDICIAL REVIEW The supremacy clause clearly recognizes judicial review of State legislative acts in relation not only to the Constitution, but also in relation to acts of Congress which are "in pursuance of the Constitution," and in relation to "treaties made or which shall be made under the authority of the United States." These constitute "the supreme law of the land," and "the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This provision was originally implemented by the famous twenty-fifth section of the Judiciary Act of 1789 which provided that final judgments or decrees of the highest courts of law or equity in the States in which a decision could be had, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, * * *"[253] JUDICIAL REVIEW AND NATIONAL SUPREMACY A quarter of a century after its enactment the validity of this section was challenged on States' Rights premises in Martin _v._ Hunter's Lessee,[254] and seven years after that in Cohens _v._ Virginia.[255] The States' Rights argument was substantially the same in both cases. It amounted to the contention that while the courts of Virginia were constitutionally obliged to prefer "the supreme law of the land" as defined in the supremacy clause over conflicting State laws it was only by their own interpretation of the said supreme law that they, as the courts of a sovereign State, were bound. Furthermore, it was contended that cases did not "arise" under the Constitution unless they were brought in the first instance by some one claiming such a right, from which it followed that "the judicial power of the United States" did not "extend" to such cases unless they were brought in the first instance in the courts of the United States. In answer to these arguments Chief Justice Marshall declared that: "A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either."[256] Passing then to broader considerations, he continued: "Let the nature and objects of our Union be considered; let the great fundamental principles, on which the fabric stands, be examined; and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction."[257] JUDICIAL REVIEW OF ACTS OF CONGRESS Judicial review of acts of Congress is not provided for in the Constitution in such explicit terms as is judicial review of State legislation, but it is nevertheless fairly evident that its existence is assumed. In the first place, the term "cases arising under the Constitution" is just as valid a textual basis for the one type of constitutional case as for the other; and, in the second place, it is clearly indicated that acts of Congress are not "supreme law of the land" unless they are "in pursuance of the Constitution," thus evoking a question which must be resolved in the first instance by State judges, when State legislation coming before them for enforcement is challenged in relation to "the supreme law of the land." Furthermore, most of the leading members of the Federal Convention are on record contemporaneously, though not always in the Convention itself, as accepting the idea.[258] HAMILTON'S ARGUMENT The argument for judicial review of acts of Congress was first elaborated in full by Alexander Hamilton in the Seventy-eighth Number of _The Federalist_ while the adoption of the Constitution was pending. Said Hamilton: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their [legislative] agents."[259] It was also set forth as something commonly accepted by Justice Iredell in 1798 in Calder _v._ Bull[260] in the following words: "If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case." And between these two formulations of the doctrine, the membership of the Supreme Court had given it their sanction first individually, then as a body. In Hayburn's Case,[261] the Justices while on circuit court duty refused to administer the Invalid Pensions Act,[262] which authorized the circuit courts to dispose of pension applications subject to review by the Secretary of War and Congress on the ground that the federal courts could be assigned only those functions such as are properly judicial and to be performed in a judicial manner. In Hylton _v._ United States,[263] a made case in which Congress appropriated money to pay counsel on both sides of the argument, the Court passed on the constitutionality of the carriage tax and sustained it as valid, and in so doing tacitly assumed that it had the power to review Congressional acts. MARBURY _v._ MADISON All the above developments were, however, only preparatory. Judicial review of acts of Congress was made Constitutional Law, and thereby the cornerstone of American constitutionalism, by the decision of the Supreme Court, speaking through Chief Justice Marshall in the famous case of Marbury _v._ Madison[264] decided in February, 1803. The facts of the case briefly stated are that Marbury had been appointed a justice of the peace in the District of Columbia by John Adams almost at the close of his administration, and John Marshall who was serving simultaneously as Secretary of State failed to deliver to Marbury his commission which had been signed before the new administration had begun. One of the first acts of Jefferson was his instruction to Secretary of State Madison to withhold commissions to office which remained undelivered. Thereupon Marbury sought to compel Madison to deliver the commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction and in pursuance of section 13 of the Judiciary Act of 1789[265] which prescribed the original jurisdiction of the Court and authorized it to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." Marshall's Argument In the portion of his opinion dealing with judicial review Marshall began his argument with the assumption that "the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness * * *" and, once established, these principles are fundamental. Second, the Government of the United States is limited in its powers by a written Constitution. The Constitution either "controls any legislative act repugnant to it; or, * * * the legislature may alter the Constitution by an ordinary act." But the Constitution is paramount law and written as such. "It is emphatically the province and duty of the judicial department to say what the law is. * * * If two laws conflict with each other, the courts must decide on the operation of each. * * * If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply." To declare otherwise, the Chief Justice concluded, would be subversive of the very foundation of all written constitutions, would force the judges to close their eyes to the Constitution, and would make the judicial oath "a solemn mockery."[266] The Court must therefore look into some portions of the Constitution, and if they can open it at all, what part of it are they forbidden to read or obey? In conclusion the Chief Justice declared that the Constitution is mentioned first in the supremacy clause and that "the particular phraseology of the Constitution * * * confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, [of government] are bound by that instrument."[267] Importance of Marbury _v._ Madison The decision in Marbury _v._ Madison has never been disturbed, although it has often been criticized. Nor was its contemporary effect confined to the national field. From that time on judicial review by State courts of local legislation in relation to the local constitutions made rapid progress and was securely established in all States by 1850 under the influence not only of Marbury _v._ Madison, but also of early principles of judicial review established in the circuit courts of the United States.[268] LIMITS TO THE EXERCISE OF JUDICIAL REVIEW Because judicial review is an outgrowth of the fiction that courts only declare what the law is in specific cases,[269] and are without will or discretion,[270] its exercise is surrounded by the inherent limitations of the judicial process and notably the necessity of a case or controversy between adverse litigants with a standing in court to present the issue of unconstitutionality in which they are directly interested. The requisites to a case or controversy have been treated more extensively above, but it may be noted that the Supreme Court has repeatedly emphasized the necessity of "an honest and actual antagonistic assertion of rights by one individual against another,"[271] and its lack of power to supervise legislative functions in friendly proceedings, moot cases, or cases which present abstract issues.[272] The Doctrine of "Strict Necessity" But even when a case involving a constitutional issue is presented, the Court has repeatedly stated that it will decide constitutional questions only if strict necessity requires it to do so. Hence constitutional issues will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied; nor if the record presents some other ground upon which to decide the case; nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation; nor if a construction of the statute is fairly possible by which the question may be fairly avoided.[273] Speaking of the policy of avoiding the decision of constitutional issues except when necessary Justice Rutledge, speaking for the Court, declared in 1947: "The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system."[274] The Doctrine of Political Questions A third limitation to the exercise of judicial review is the rule, partly inherent in the judicial process, but also partly a precautionary rule adopted by the Court in order to avoid clashes with the "political branches," is that the federal courts will not decide "political questions."[275] The "Reasonable Doubt" Doctrine A fourth rule, of a precautionary nature, is that no act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt.[276] Sometimes this rule is expressed in another way, in the formula that an act of Congress or a State legislature is presumed to be constitutional until proved otherwise "beyond all reasonable doubt."[277] In operation this rule is subject to two limitations which seriously impair its efficacy. The first is that the doubts which are effective are the doubts of the majority only. If five Justices of learning and attachment to the Constitution are convinced that the statute is invalid and four others of equal learning and attachment to the Constitution are convinced that it is valid or are uncertain that it is invalid, the convictions of the five prevail over the convictions or doubts of the four, and vice versa. Second, the Court has made exceptions to this rule in certain categories of cases. At one time statutes interfering with freedom of contract were presumed to be unconstitutional until proved valid,[278] and more recently presumptions of invalidity have appeared to prevail against statutes alleged to interfere with freedom of expression and of religious worship, which have been said to occupy a preferred position in the Constitution.[279] Exclusion of Extra-Constitutional Tests A fifth maxim of constitutional interpretation runs to the effect that the Courts are concerned only with the constitutionality of legislation and not with its motives, policy or wisdom, or with its concurrence with natural justice, fundamental principles of government, or spirit of the Constitution.[280] In various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in constitutional cases as a reason for fortifying a finding of unconstitutionality. Through absorption of natural rights doctrines into the text of the Constitution, the Court was enabled to reject natural law and still to partake of its fruits, and the same is true of the _laissez faire_ principles incorporated in judicial decisions from about 1890 to 1937. Such protective coloration is transparent in such cases as Lochner _v._ New York[281] and United States _v._ Butler.[282] Disallowance by Statutory Interpretation A sixth principle of constitutional interpretation designed by the courts to discourage invalidation of statutes is that if at all possible the courts will construe the statute so as to bring it within the law of the Constitution.[283] At times this has meant that a statute was construed so strictly in order to avoid constitutional difficulties that its efficacy was impaired if not lost.[284] A seventh principle closely related to the preceding one is that in cases involving statutes, portions of which are valid and other portions invalid, the courts will separate the valid from the invalid and throw out only the latter unless such portions are inextricably connected.[285] Sometimes statutes expressly provide for the separability of provisions, but it remains for the courts in the last resort to determine whether the provisions are separable.[286] _Stare Decisis_ in Constitutional Law An eighth limitation on the power of the federal courts to invalidate legislation springs from the principle of _stare decisis_, a limitation which has been progressively weakened since the Court proceeded to correct "a century of error" in Pollock _v._ Farmers' Loan & Trust Co.[287] Because of the difficulty of amending the Constitution the Court has long taken the position that it will reverse its previous decisions on constitutional issues when convinced they are grounded on error more quickly than in other types of cases in which earlier precedents are not absolutely binding.[288] The "constitutional revolution" of 1937 produced numerous reversals of earlier precedents as other sections of this study disclose, and the process continues. In Smith _v._ Allwright,[289] which reversed Grovey _v._ Townsend,[290] Justice Reed cited fourteen cases decided between March 27, 1937, and June 14, 1943, in which one or more earlier decisions of constitutional questions were overturned. Although the general effect of the numerous reversals of precedent between 1937 and 1950 was to bring judicial interpretation more generally into accord with the formal text of the Constitution, and to dispose of a considerable amount of constitutional chaff, Justice Roberts was moved to say in the Allwright case that frequent reversals of earlier decisions tended to bring adjudications of the Supreme Court "into the same class as a restricted railroad ticket, good for this day and train only."[291] A ninth limitation which has nothing to do with statutory or constitutional construction as such and which is altogether precautionary is that the Court will declare no legislative act void unless a majority of its full membership so concurs.[292] The cumulative effect of these limitations is difficult to measure. The limitation imposed by the case concept definitely has the effect of postponing judicial nullification, but beyond this the most that can be said is that constitutional issues affecting important issues can ordinarily be presented in a case and so will sooner or later reach the Court. The limitations of the presumptions of statutory validity, lack of concern with the wisdom of the legislation, alternative construction, separability of provisions and the like depend for their effectiveness upon the consciousness of the individual judge of the judicial proprieties and have been equally endorsed by those judges most frequently addressing themselves to the task of finding legislation invalid. The limitation imposed by the concept of political questions does not limit in any significant way the power of the federal courts to review legislation, but does remove from judicial scrutiny vast areas of executive action. In general, therefore, the extent to and manner in which the courts will exercise their power to review legislation is a matter of judicial discretion. ALLEGATIONS OF FEDERAL QUESTION The question of jurisdiction of cases involving federal questions is determined by the allegations made by the plaintiff and not upon the facts as they may emerge or by a decision of the merits.[293] Plaintiffs seeking to docket such cases in the federal courts must set forth a substantial claim under the Constitution, laws or treaties of the United States.[294] Nor does jurisdiction arise simply because an averment of a federal right is made, "if it plainly appears that such averment is not real and substantial, but is without color of merit."[295] The federal question averred may be insubstantial because obviously without merit, or because its unsoundness so clearly results from previous decisions of the Supreme Court as to foreclose the issue and leaves no room for the inference that the questions sought to be raised can be subjects of controversy.[296] In Gully _v._ First National Bank[297] the Court reviewed earlier precedents and endeavored to restate the rules for determining when a case arises. First there must be a right or immunity created by the Constitution, laws, or treaties of the United States which must be such that it will be supported if the Constitution, laws, or treaties are given one construction, or defeated if given another. Second, a genuine and present controversy as distinguished from a possible or conjectural one must exist with reference to the federal right. Third, the controversy must be disclosed upon the face of the complaint unaided by the answer.[298] CORPORATIONS CHARTERED BY CONGRESS The earlier hospitality of the federal courts to cases involving federal questions is also manifested in suits by corporations chartered by Congress. Although in Bank of United States _v._ Deveaux[299] the Court held that the first Bank of the United States could not sue in the federal courts merely because it was incorporated by an act of Congress, the act incorporating the second bank authorized such suits and this authorization was not only sustained in Osborn _v._ Bank of United States,[300] but an act of incorporation was declared to be a law of the United States for purposes of jurisdiction in cases involving federal questions. Consequently, the door was opened to other federally chartered corporations to go into the federal courts after the act of 1875 vested original jurisdiction generally in the lower courts of such questions. Corporations, chartered by Congress, particularly railroads, quickly availed themselves of this opportunity, and succeeded in the Pacific Railroad Removal Cases[301] in removing suits from the State to the federal courts in cases involving no federal question solely on the basis of federal incorporation. The result of this and similar cases was Congressional legislation depriving national banks of the right to sue in the federal courts solely on the basis of federal incorporation in 1882,[302] depriving railroads holding federal charters of this right in 1915,[303] and finally in 1925 removing from federal jurisdiction involving federal questions all suits brought by federally chartered corporations, solely on the basis of federal incorporation, except where the United States holds half of the stock.[304] REMOVAL FROM STATE COURTS OF SUITS AGAINST FEDERAL OFFICIALS Of greater significance and of immediate importance to the maintenance of national supremacy are those cases involving State prosecution of federal officials for acts committed under the color of federal authority. As early as 1815 Congress provided temporarily for the removal of prosecutions against customs officials for acts done or omitted as an officer or under color of an act of Congress, except for offenses involving corporal punishment.[305] In 1833, in partial answer to South Carolina's Nullification Proclamation, Congress enacted the so-called Force Act providing for removal from State courts of all prosecutions against any officer of the United States or under color thereof.[306] As a part of the Civil War legislation and limited to the war period, an act in 1863 provided for removal from State courts of cases brought against federal officials for acts committed during the war and justified under the authority of Congress and the President.[307] The act of 1833, with amendments, has been kept in force. Since 1948 the United States Code has provided for the removal to a federal district court of civil actions or criminal prosecutions in State courts against "any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue."[308] Tennessee _v._ Davis The validity of the act of 1833 as it was carried over into the Revised Statutes, § 643, was contested in Tennessee _v._ Davis,[309] which involved the attempt of a State to prosecute a deputy collector of internal revenue who had killed a man while seeking to seize an illicit distilling apparatus. In an opinion in the tradition of Martin _v._ Hunter's Lessee[310] and Cohens _v._ Virginia,[311] Justice Strong emphasized the power of the National Government to protect itself in the exercise of its constitutional powers, the inability of a State to exclude it from the exercise of any authority conferred by the Constitution, and the comprehensive nature of the term "cases in law and equity arising under the Constitution, the laws of the United States, and treaties * * *" which was held to embrace criminal prosecutions as well as civil actions. Then speaking of a case involving federal questions he said: "It is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted."[312] SUPREME COURT REVIEW OF STATE COURT DECISIONS In addition to the constitutional issues presented earlier by § 25 of the act of 1789, which was superseded in 1934 when the "Writ of error" was replaced by "Appeal," issues have continued to arise concerning its application which go directly to the nature and extent of the Supreme Court's appellate jurisdiction. These have to do with such matters as the existence of a federal question, exhaustion of remedies in State courts, and review of findings of fact by State courts. Whether a federal question has been adequately presented to and decided by a State court has been held to be in itself a federal question, to be decided by the Supreme Court on appeal.[313] Likewise a contention that a decision of a State court disregarded decrees of a United States Court has been held to bring a case within the Court's jurisdiction;[314] also a decision by a State court which was adverse to an asserted federal right although, as the record of the case showed, it might have been based upon an independent and adequate nonfederal ground.[315] This latter ruling, however, was qualified during the same term of Court in a case which held that it is essential to the jurisdiction of the Supreme Court, in reviewing a decision of a State court that it must appear affirmatively from the record, not only that a federal question was presented for determination, but that its decision was necessary to the determination of the cause; that the federal question was actually decided, or that the judgment could not have been given without deciding it.[316] These rules all flow from the broader principle that if the laws and Constitution of the United States are to be observed, the Supreme Court cannot accept as final the decision of a State court on matters alleged to give rise to an asserted federal right.[317] Consequently, the Supreme Court will review the findings of fact by a State court where a federal right has been denied by a finding shown by the record to be without evidence to support it, and where a conclusion of law as to a federal right and findings of facts are so intermingled as to make it necessary to analyze the facts in order to pass upon the federal question.[318] It should be noted, too, that barring exceptional circumstances such as those in Gilchrist _v._ Interborough Rapid Transit Co.,[319] which involved intricate contracts between the City of New York and the company, the meaning of which had not been determined by the State courts, or explicit statutory provisions as in 28 U.S.C.A. §§ 1331-1332, 1345, 1359, resort to a federal court may precede the exhaustion of remedies of State courts.[320] Suits Affecting Ambassadors, Other Public Ministers, and Consuls The earliest interpretation of the grant of original jurisdiction to the Supreme Court came in the Judiciary Act of 1789, which conferred on the federal district courts jurisdiction of suits to which a consul might be a party. This legislative interpretation was sustained in 1793 in a circuit court case in which the judges held that Congress might vest concurrent jurisdiction involving consuls in the inferior courts and sustained an indictment against a consul.[321] Many years later, in 1884, the Supreme Court held that consuls could be sued in the federal courts,[322] and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where the Supreme Court has been invested with original jurisdiction.[323] Nor does the grant of original jurisdiction to the Supreme Court in cases affecting ambassadors and consuls of itself preclude suits in State courts against consular officials. The leading case is Ohio ex rel. Popovici _v._ Agler[324] in which a Rumanian vice-consul contested an Ohio judgment against him for divorce and alimony. Justice Holmes, speaking for the Court, said: "The words quoted from the Constitution do not of themselves and without more exclude the jurisdiction of the State. * * * It has been understood that, 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.' * * * In the absence of any prohibition in the Constitution or laws of the United States it is for the State to decide how far it will go." WHEN "AMBASSADORS" ETC., ARE "AFFECTED" A number of incidental questions arise in connection with the phrase "affecting ambassadors and consuls." Does the ambassador or consul to be affected have to be a party in interest, or is a mere indirect interest in the outcome of the proceeding sufficient? In United States _v._ Ortega,[325] the Court ruled that a prosecution of a person for violating international law and the laws of the United States by offering violence to the person of a foreign minister was not a suit "affecting" the minister, but a public prosecution for vindication of the laws of nations and the United States. Another question concerns the official status of a person claiming to be an ambassador, etc. In Ex parte Baiz,[326] the Court refused to review the decision of the Executive with respect to the public character of a person claiming to be a public minister and laid down the rule that it has the right to accept a certificate from the Department of State on such a question. A third question was whether the clause included ambassadors and consuls accredited by the United States to foreign governments. The Court held that it includes only persons accredited to the United States by foreign governments.[327] However, matters of especial delicacy such as suits against ambassadors and public ministers or their servants, where the law of nations permits such suits, and in all controversies of a civil nature to which a State is a party,[328] Congress has made the original jurisdiction of the Supreme Court exclusive of that of other courts. By its compliance with the Congressional distribution of exclusive and concurrent original jurisdiction, the Court has tacitly sanctioned the power of Congress to make such jurisdiction exclusive or concurrent as it may choose. Likewise, as in the Popovici case, it has implied that Congress, if it chose, could make the court's jurisdiction of consular officials exclusive of State Courts. Cases of Admiralty and Maritime Jurisdiction ORIGIN AND CHARACTERISTICS The admiralty and maritime jurisdiction of the federal courts had its origin in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the States established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation.[329] Since one of the objectives of the Philadelphia Convention was the promotion of commerce and the removal of obstacles to it, it was only logical that the Constitution should deprive the States of all admiralty jurisdiction and vest it exclusively in the federal courts. CONGRESSIONAL INTERPRETATION OF THE ADMIRALTY CLAUSE The Constitution uses the terms "admiralty and maritime jurisdiction" without defining them. Though closely related the words are not synonyms. In England the word "maritime" referred to the cases arising upon the high seas, whereas "admiralty" meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. For this and other reasons, a much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country.[330] At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance "of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; * * *"[331] This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law "as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe."[332] JUDICIAL APPROVAL OF CONGRESSIONAL INTERPRETATION Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,[333] it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that, "whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed."[334] The Court thereupon proceeded to hold that admiralty had jurisdiction _in personam_ as well as _in rem_, over controversies arising out of contracts of affreightment between New York and Providence. TWO TYPES OF CASES Admiralty and maritime jurisdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters; and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases, and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act; while in the second category subject matter is the primary determinative factor.[335] Specifically, contract cases include suits by seamen for wages,[336] cases arising out of marine insurance policies,[337] actions for towage[338] or pilotage[339] charges, actions on bottomry or respondentia bonds,[340] actions for repairs on a vessel already used in navigation,[341] contracts of affreightment,[342] compensation for temporary wharfage,[343] agreements of consortship between the masters of two vessels engaged in wrecking,[344] and surveys of damaged vessels.[345] In the words of the Court in Ex parte Easton,[346] admiralty jurisdiction "extends to all contracts, claims and services essentially maritime." MARITIME TORTS Jurisdiction of maritime torts depends exclusively upon the commission of the wrongful act upon navigable waters[347] regardless of the voyage and the destination of the vessel.[348] By statutory elaboration, as well as judicial decision, maritime torts include injuries to persons,[349] damages to property arising out of collisions or other negligent acts,[350] and violent dispossession of property.[351] But until Congress makes some regulation touching the liability of parties for marine torts resulting in the death of the persons injured, a State statute providing "that when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission," applies, and, as thus applied, it constitutes no encroachment upon the commerce power of Congress.[352] PRIZE CASES, FORFEITURES, ETC. From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases.[353] Also, in contrast to other phases of admiralty jurisdiction prize law as applied by the British courts continued to provide the basis of American law so far as practicable,[354] and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction comprises the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or municipal law, such as illicit trade,[355] infraction of revenue laws,[356] and the like.[357] PROCEEDINGS _IN REM_ Procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant. Suits in admiralty take the form of a proceeding _in rem_ against the vessel and, with exceptions to be noted, proceedings _in rem_ concerning navigable waters are confined exclusively to federal admiralty courts. However, if a common law remedy exists, a plaintiff may bring an action at law in either a State or federal court of competent jurisdiction,[358] but in this event the action is a proceeding _in personam_ against the owner of the vessel. On the other hand, although the Court has sometimes used language which would confine proceedings _in rem_ to admiralty courts,[359] yet it has sustained proceedings _in rem_ in the State courts in actions of forfeiture. Thus in the case of C.J. Hendry Co. _v._ Moore,[360] the Court held that a proceeding _in rem_ in a State court against fishing nets in the navigable waters of California was a common law proceeding within the meaning of § 9 of the Judiciary Act of 1789, and therefore within the exception to the grant of admiralty jurisdiction to the federal courts. At the same time, however, the Court was careful to confine such proceedings to forfeitures arising out of violations of State law. ABSENCE OF A JURY Another procedural difference between actions at law and in admiralty is the absence of jury trial in civil proceedings in admiralty courts unless Congress specifically provides for it. Otherwise the judge of an admiralty court tries issues of fact as well as of law.[361] Indeed, the absence of a jury in admiralty proceedings appears to have been one of the reasons why the English government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts of America, since they provided a forum where the English authorities could enforce the Navigation Laws without what Chief Justice Stone called "the obstinate resistance of American juries."[362] TERRITORIAL EXTENT OF ADMIRALTY AND MARITIME JURISDICTION As early as 1821 a federal district court in Kentucky asserted admiralty jurisdiction over inland waterways to the consternation of certain interests in Kentucky which succeeded in inducing the Senate to pass a bill confining admiralty jurisdiction to the ebb and flow of the tide, only to see it defeated in the House.[363] However, in 1825, in _The Thomas Jefferson_[364] the Court relieved these tensions by confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended in accordance with the English rule. Twenty-two years later this rule was qualified in Waring _v._ Clarke,[365] when the Court ruled that the admiralty jurisdiction under the Constitution was not to be limited or interpreted by English rules of admiralty and extended the jurisdiction of the federal courts to a collision on the Mississippi River ninety-five miles above New Orleans. In this ruling the Court moved in the direction of accommodating the rising commerce on the inland waterways and prepared the way for the Genesee Chief,[366] which reversed The Thomas Jefferson and sustained the constitutionality of an act of Congress passed in 1845 giving the district courts jurisdiction over the Great Lakes and connecting waters, and so in effect extended the admiralty jurisdiction to all the navigable waters of the United States.[367] The Genesee Chief therefore vastly expanded federal power,[368] and marked a trend which was continued in Ex parte Boyer,[369] where admiralty jurisdiction was extended to canals, and in The Daniel Ball,[370] where it was extended to waters wholly within a given State provided they form a connecting link in interstate commerce. This latter case is also significant for its definition of navigable waters of the United States as those that are navigable in fact, and as navigable in fact when so "used, or * * * susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[371] The doubts left by the Ball case in its distinction between navigable waters of the United States and navigable waters of the States were clarified by In re Garnett,[372] where it was held that the power of Congress to amend the maritime law was coextensive with that law and not confined "to the boundaries or class of subjects which limit and characterize the power to regulate commerce," and that the admiralty jurisdiction extends "to all public navigable lakes and rivers." In United States _v._ Appalachian Electric Power Co.,[373] the concept of "navigable waters of the United States" was further expanded to include waterways which by reasonable improvement can be made navigable for use in interstate commerce provided there is a balance between cost and need at a time when the improvement would be useful. Nor is it necessary that the improvement shall have been undertaken or authorized. Conversely, a navigable waterway of the United States does not cease to be so because navigation has ceased, and it may be a navigable waterway for only part of its course. Although this doctrine was announced as an interpretation of the commerce clause, the Garnett case and the decision rendered in Southern S.S. Co. _v._ National Labor Relations Board,[374] to the effect that admiralty jurisdiction includes all navigable waters within the country, makes it applicable also to the admiralty and maritime clause. ADMIRALTY JURISDICTION VERSUS STATE POWER The extension of the admiralty and maritime jurisdiction to navigable waters within a State does not, however, of its own force include general or political powers of government. Thus in the absence of legislation by Congress, the States through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore. In United States _v._ Bevans[375] the Court denied the jurisdiction of a federal circuit court to try defendant for a murder committed in Boston Harbor in the absence of statutory authorization of trials in federal courts for offenses committed within the jurisdiction of a State. While admitting that Congress may pass all laws which are necessary and proper for giving complete effect to admiralty jurisdiction, Chief Justice Marshall at the same time declared that "the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts."[376] Exclusiveness of the Jurisdiction Determination of the bounds of admiralty jurisdiction is a judicial function, and "no State law can enlarge it, nor can an act of Congress or a rule of court make it broader than the judicial power may determine to be its true limits."[377] Nor is the jurisdiction self-executing. It can only be exercised under acts of Congress vesting it in the federal courts.[378] The admiralty jurisdiction of the federal courts was made exclusive of State court jurisdiction by the Judiciary Act of 1789 according to The "Moses Taylor,"[379] which also held that State laws conferring remedies _in rem_ could only be enforced in the federal courts. Consequently, the State courts were deprived of jurisdiction of a great number of cases arising out of maritime contracts and torts over which they had exercised jurisdiction prior to 1866. However, as before noted, the ninth section of the act of 1789 contained a provision, still in effect, which enables parties to avail themselves in State courts of such remedies as the common law is competent to give,[380] but in such cases the rights and obligations involved are still determined by the maritime law.[381] Concessions to State Power Nor does the exclusiveness of federal admiralty jurisdiction preclude the States from creating rights enforceable in admiralty courts. In The "Lottawanna,"[382] it was held that federal district courts sitting in admiralty could enforce liens given for security of a contract even when created by State laws. Likewise liabilities created by State statutes for injuries resulting in death have been enforced by proceedings _in rem_ in federal admiralty courts,[383] and, in the absence of Congressional legislation, a State may enact laws governing the rights and obligations of its citizens on the high seas. Under this general rule a law of Delaware providing for damages for wrongful death was enforced in an admiralty proceeding against a vessel arising out of a collision at sea of two vessels owned by Delaware corporations.[384] And in 1940, in Just _v._ Chambers,[385] the Supreme Court held specifically applicable in admiralty proceedings the law of Florida whereby a cause of action for personal injury due to another's negligence survives the death of the tort-feasor against his estate and against the vessel. The Jensen Case and Its Sequelae In the face of these decisions, except the last, the Court, nevertheless, held in 1917 in Southern Pacific Co. _v._ Jensen[386] that a New York Workman's Compensation statute was unconstitutional as applied to employees engaged in maritime work. Proceeding on the assumption that "Congress has paramount power to fix and determine the maritime law which shall prevail through the country," and that in the absence of a controlling statute the general maritime law as accepted by the federal courts is a part of American national law, Justice McReynolds proceeded to draw an analogy between the power of the States to legislate on admiralty and maritime matters and their power to legislate on matters affecting interstate commerce. Just as the States may not regulate interstate commerce where the subject is national in character and requires uniform regulation, so, he argued, they may not legislate on maritime matters in such fashion as to destroy "the very uniformity in respect to maritime matters which the Constitution was designed to establish" or to hamper and impede freedom of navigation between the States and with foreign countries. Nor could the act be covered by the saving clause of the act of 1789 governing common law remedies, since the remedy provided by the compensation statute was unknown to the common law.[387] Following the Jensen decision Congress enacted a statute saving to claimants their rights and remedies under State workmen's compensation laws.[388] In Knickerbocker Ice Co. _v._ Stewart[389] the same majority of judges, with Justice McReynolds again their spokesman, invalidated this statute as an unconstitutional delegation of legislative power to the States. The holding was based on the premise, stated as follows: "The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the States all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations."[390] And a like fate overtook the attempt of Congress in 1922 to protect longshoremen and other workers under State compensation laws by excluding masters and crew members of vessels from those who might claim compensation for maritime injuries.[391] Finally, in 1927 Congress passed the Longshoremen's and Harbor Workers' Act,[392] which provided accident compensation for those workers who could not validly be compensated under State statutes. This time it seems to have succeeded, the constitutionality of the 1927 statute being apparently taken for granted.[393] The net result of the Jensen Case and its progeny has been a series of cases which hold that in some circumstances the States can apply their compensation laws to maritime employees and in other circumstances cannot, if to do so "works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations."[394] But, as Justice Black pointed out in 1942 in Davis _v._ Department of Labor,[395] "when a State could, and when it could not, grant protection under a compensation act was left as a perplexing problem, for it was held 'difficult, if not impossible,' to define this boundary with exactness."[396] Nor, he continued, has the Court been able "to give any guiding, definite rule to determine the extent of state power in advance of litigation, and has held that the margins of state authority must 'be determined in view of surrounding circumstances as cases arise.'"[397] As to the specific claim involved in the Davis Case, Justice Black stated further that it was "fair to say that a number of cases can be cited both in behalf of and in opposition to recovery here."[398] Concurring in the Davis Case, Justice Frankfurter referred to the Jensen case as "that ill-starred decision," but agreed that reversal would not eliminate its resultant complexities and confusions until Congress attempted another comprehensive solution of the problem. Until then all the Court could do was "to bring order out of the remaining judicial chaos as marginal situations" were presented.[399] POWER OF CONGRESS TO MODIFY THE MARITIME LAW; THE "LOTTAWANNA" In view of the chaos created by the Jensen case and its apparent disharmony with earlier as well as some later decisions the question arises as to the scope of Congress's power to revise and codify the maritime law. In the "Lottawanna"[400] Justice Bradley as spokesman of the Court, while admitting the existence of a general body of maritime law, asserted that it is operative as law only insofar "as it is adopted by the laws and usages of that country,"[401] subject to such modifications and qualifications as may be made. So adopted and qualified it becomes the law of a particular nation, but not until then. "That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.'" Continuing, Justice Bradley stated that "the Constitution must have referred to a system of law coextensive with and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states."[402] However, the framers of the Constitution could not have contemplated that the law should remain ever the same, especially as Congress "has authority under the commercial power, if no other, to introduce such changes as are likely to be needed."[403] Sixteen years later in the Garnett case[404] Justice Bradley, speaking for a unanimous court, asserted that the power of Congress to amend the maritime law is coextensive with that law and not limited by the boundaries of the commerce clause, and that the maritime law is "subject to such amendments as Congress may see fit to adopt."[405] Likewise, Justice McReynolds in Southern Pacific Co. _v._ Jensen[406] emphasizes Congress' "paramount power to fix and determine the maritime law which shall prevail throughout the country," albeit in the absence of a controlling statute the general maritime law prevails; and the language of Knickerbocker Ice Co. _v._ Stewart[407] is to like effect, as is also that of Swanson _v._ Marra Bros.,[408] decided in 1946. The law administered by the federal courts sitting in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by Congressional enactments, the common law of torts and contracts as modified by State or National legislation, and international prize law. This body of law, however, is subject at all times to the paramount authority of Congress to change it in pursuance of its powers under the commerce clause, the admiralty and maritime clause, and the necessary and proper clause. That portion of the Jensen opinion emphasizing Congressional power in this respect has never been in issue in either the opinions of the dissenters in that case or in subsequent opinions critical of it, which in effect invite Congress to exercise its power to modify the maritime law.[409] Cases to Which the United States Is a Party: Right of the United States To Sue As Justice Story pointed out in his Commentaries, "It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts."[410] As early as 1818 the Supreme Court ruled that the United States could sue in its own name in all cases of contract without Congressional authorization of such suits.[411] Later this rule was extended to other types of actions. In the absence of statutory provisions to the contrary such suits are initiated by the Attorney General in the name of the United States.[412] As in other judicial proceedings, the United States, like any other party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought.[413] By the Judiciary Act of 1789 and subsequent amendments Congress has vested jurisdiction in the federal district courts to hear all suits of a civil nature at law or in equity, brought by the United States as a party plaintiff.[414] SUITS AGAINST STATES Controversies to which the United States is a party include suits brought against States as party defendants. The first such suit occurred in United States _v._ North Carolina[415] which was an action by the United States to recover upon bonds issued by North Carolina. Although no question of jurisdiction was raised, in deciding the case on its merits in favor of the State, the Court tacitly assumed that it had jurisdiction of such cases. The issue of jurisdiction was directly raised by Texas a few years later in a bill in equity brought by the United States to determine the boundary between Texas and the Territory of Oklahoma, and the Court sustained its jurisdiction over strong arguments by Texas to the effect that it could not be sued by the United States without its consent and that the Supreme Court's original jurisdiction did not extend to cases to which the United States is a party.[416] Stressing the inclusion within the judicial power of cases to which the United States and a State are parties, Justice Harlan pointed out that the Constitution made no exception of suits brought by the United States. In effect, therefore, consent to be sued by the United States "was given by Texas when admitted to the Union upon an equal footing in all respects with the other States."[417] Suits brought by the United States against States have, however, been infrequent. All of them have arisen since 1889, and they have become somewhat more common since 1926. That year the Supreme Court decided a dispute between the United States and Minnesota over land patents issued to the State by the United States in breach of its trust obligations to the Indians.[418] In United States _v._ West Virginia,[419] the Court refused to take jurisdiction of a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. A few years earlier, however, it had taken jurisdiction of a suit by the United States against Utah to quiet title to land forming the beds of certain sections of the Colorado River and its tributaries within the States.[420] Similarly, it took jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.[421] Like suits were decided against Louisiana and Texas in 1950.[422] IMMUNITY OF THE UNITED STATES FROM SUIT In pursuance of the general rule that a sovereign cannot be sued in his own courts, it follows that the judicial power does not extend to suits against the United States unless Congress by general or special enactment consents to suits against the Government. This rule first emanated in embryo form in an _obiter dictum_ by Chief Justice Jay in Chisholm _v._ Georgia, where he indicated that a suit would not lie against the United States because "there is no power which the courts can call to their aid."[423] In Cohens _v._ Virginia,[424] also by way of dictum, Chief Justice Marshall asserted, "the universally received opinion is, that no suit can be commenced or prosecuted against the United States." The issue was more directly in question in United States _v._ Clarke[425] where Chief Justice Marshall stated that as the United States is "not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it." He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination.[426] Indeed, it was not until United States _v._ Lee[427] that the Court examined the rule and the reasons for it, and limited its application accordingly. Waiver of Immunity by Congress Since suits against the United States can be maintained only by permission, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed.[428] Only Congress can take the necessary steps to waive the immunity of the United States from liability for claims, and hence officers of the United States are powerless by their actions either to waive such immunity or to confer jurisdiction on a federal court.[429] Even when authorized, suits can be brought only in designated courts.[430] These rules apply equally to suits by States against the United States.[431] Although an officer acting as a public instrumentality is liable for his own torts, Congress may grant or withhold immunity from suit on behalf of government corporations.[432] United States _v._ Lee United States _v._ Lee, a five-to-four decision, qualified earlier holdings to the effect that where a judgment affected the property of the United States the suit was in effect against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested in the United States but was being held illegally by army officers under an unlawful order of the President. In its examination of the sources and application of the rule of sovereign immunity, the Court concluded that the rule "if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiffs when the United States is not a defendant or a necessary party to the suit."[433] Except, nevertheless, for an occasional case like Kansas _v._ United States,[434] which held that a State cannot sue the United States, most of the cases involving sovereign immunity from suit since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been named as a party defendant. Thus, it has been held that a suit against the Secretary of the Treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the Government and would in effect be a suit against the United States.[435] Even more significant is Stanley _v._ Schwalby,[436] which resembles without paralleling United States _v._ Lee, where it was held that an action of trespass against an army officer to try title in a parcel of land occupied by the United States as a military reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against the United States. Difficulties Created by the Lee Case Subsequent cases repeat and reaffirm the rule of United States _v._ Lee that where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the United States, does not make the action one against the United States until it is determined that they were acting within the scope of their lawful authority.[437] Contrariwise, the rule that a suit in which the judgment would affect the United States or its property is a suit against the United States has also been repeatedly approved and reaffirmed.[438] But, as the Court has pointed out, it is not "an easy matter to reconcile all of the decisions of the court in this class of cases,"[439] and, as Justice Frankfurter quite justifiably stated in a dissent, "the subject is not free from casuistry."[440] Justice Douglas' characterization of Land _v._ Dollar, "this is the type of case where the question of _jurisdiction_ is dependent on decision of the _merits_,"[441] is frequently applicable. Official Immunity Today The recent case of Larson _v._ Domestic and Foreign Corp.,[442] illuminates these obscurities somewhat. Here a private company sought to enjoin the Administrator of the War Assets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the Administrator because of the company's failure to make an advance payment. Chief Justice Vinson and a majority of the Court looked upon the suit as one brought against the Administrator in his official capacity, acting under a valid statute, and therefore a suit against the United States. It held that although an officer in such a situation is not immune from suits for his own torts, yet his official action, though tortious cannot be enjoined or diverted, since it is also the action of the sovereign.[443] The Court then proceeded to repeat the rule that "the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff's property) can be regarded as so individual only if it is not within the officer's statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are constitutionally void."[444] The Court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: "The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right."[445] CLASSIFICATION OF SUITS AGAINST OFFICERS Suits against officers involving the doctrine of sovereign immunity have been classified by Justice Frankfurter in a dissenting opinion into four general groups. First, there are those cases in which the plaintiff seeks an interest in property which belongs to the Government, or calls "for an assertion of what is unquestionably official authority."[446] Such suits, of course, cannot be maintained.[447] Second, cases in which action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. In general these suits are maintainable.[448] Third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. In general these suits are also maintainable.[449] Fourth, cases in which an officer seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort.[450] This category of cases presents the greatest difficulties since these suits can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the judgment would affect the United States. SUITS AGAINST GOVERNMENT CORPORATIONS The multiplication of government corporations during periods of war and depression has provided one motivation for limiting the doctrine of sovereign immunity. In Keifer & Keifer _v._ Reconstruction Finance Corp. and Regional Agricultural Credit Corp.,[451] the Court held that the Government does not become a conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Nor does the creation of a government corporation confer upon it legal immunity. Whether Congress endows a public corporation with governmental immunity in a specific instance, is a matter of ascertaining the Congressional will. Moreover, it has been held that waivers of governmental immunity in the case of federal instrumentalities and corporations should be construed liberally.[452] On the other hand, Indian nations are exempt from suit without further Congressional authorization; it is as though their former immunity as sovereigns passed to the United States for their benefit, as did their tribal properties.[453] Suits Between Two or More States The extension of the federal judicial power to controversies between States and the vesting of original jurisdiction in the Supreme Court of suits to which a State is a party had its origin in experience. Prior to independence disputes between colonies claiming charter rights to territory were settled by the Privy Council. Under the Articles of Confederation Congress was made "the last resort on appeal" to resolve "all disputes and differences * * * between two or more States concerning boundary, jurisdiction, or any other cause whatever," and to constitute what in effect were _ad hoc_ arbitral courts for determining such disputes and rendering a final judgment therein. When the Philadelphia Convention met in 1787, serious disputes over boundaries, lands, and river rights involved ten States.[454] It is hardly surprising, therefore, that during its first sixty years the only State disputes coming to the Supreme Court were boundary disputes[455] or that such disputes constitute the largest single number of suits between States. Since 1900, however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization other types of cases have occurred with increasing frequency. BOUNDARY DISPUTES; THE LAW APPLIED Of the earlier examples of suits between States, that between New Jersey and New York is significant for the application of the rule laid down earlier in Chisholm _v._ Georgia,[456] that the Supreme Court may proceed _ex parte_ if a State refuses to appear when duly summoned. The long drawn out litigation between Rhode Island and Massachusetts is of even greater significance for its rulings, after the case had been pending for seven years, that though the Constitution does not extend the judicial power to all controversies between States, yet it does not exclude any;[457] that a boundary dispute is a justiciable and not a political question;[458] and that a prescribed rule of decision is unnecessary in such cases. On the last point Justice Baldwin stated: "The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case (11 Ves. 294); which depends on the subject-matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the _sic volo_, _sic jubeo_, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires."[459] MODERN TYPES OF SUITS BETWEEN STATES Beginning with Missouri _v._ Illinois and the Sanitary District of Chicago,[460] which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like have become an increasing source of suits between States. Such suits have been especially frequent in the western States, where water is even more of a treasure than elsewhere, but they have not been confined to any one region. In Kansas _v._ Colorado,[461] the Court established the principle of the equitable division of river or water resources between conflicting State interests. In New Jersey _v._ New York[462] where New Jersey sought to enjoin the diversion of waters into the Hudson River watershed for New York in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and increase harmfully the saline contents of the Delaware, Justice Holmes stated for the Court: "A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And, on the other hand, equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the river that must be reconciled as best they may be."[463] Other types of interstate disputes of which the Court has taken jurisdiction include suits by a State as the donee of the bonds of another to collect thereon,[464] by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia which the latter owed the former,[465] of one State against another to enforce a contract between the two,[466] of a suit in equity between States for the determination of a decedent's domicile for inheritance tax purposes,[467] and of a suit by two States to restrain a third from enforcing a natural gas measure which purported to restrict the interstate flow of natural gas from the State in the event of a shortage.[468] In general in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court proceeded upon the liberal construction of the term "controversies between two or more States" enunciated in Rhode Island _v._ Massachusetts,[469] and fortified by Chief Justice Marshall's dictum in Cohens _v._ Virginia[470] concerning jurisdiction because of the parties to a case, that "it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union." CASES OF WHICH THE COURT HAS DECLINED JURISDICTION In other cases, however, the Court, centering its attention upon the elements of a case or controversy, has declined jurisdiction. Thus in Alabama _v._ Arizona[471] where Alabama sought to enjoin 19 States from regulating or prohibiting the sale of convict-made goods, the Court went far beyond holding that it had no jurisdiction, and indicated that jurisdiction of suits between States will be exercised only when absolutely necessary, that the equity requirements in a suit between States are more exacting than in a suit between private persons, that the threatened injury to a plaintiff State must be of great magnitude and imminent, and that the burden on the plaintiff State to establish all the elements of a case is greater than that generally required by a petitioner seeking an injunction suit in cases between private parties. Pursuing a similar line of reasoning, the Court declined to take jurisdiction of a suit brought by Massachusetts against Missouri and certain of its citizens to prevent Missouri from levying inheritance taxes upon intangibles held in trust in Missouri by resident trustees. In holding that the complaint presented no justiciable controversy, the Court declared that to constitute such a controversy, the complainant State must show that it "has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to * * * the common law or equity systems of jurisprudence."[472] The fact that the trust property was sufficient to satisfy the claims of both States and that recovery by either would not impair any rights of the other distinguished the case from Texas _v._ Florida,[473] where the contrary situation obtained. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right. The Court then proceeded to reiterate its earlier rule that a State may not invoke the original jurisdiction of the Supreme Court for the benefit of its residents or to enforce the individual rights of its citizens.[474] Moreover, Massachusetts could not invoke the original jurisdiction of the Court by the expedient of making citizens of Missouri parties to a suit not otherwise maintainable.[475] Accordingly, Massachusetts was held not to be without an adequate remedy in Missouri's courts or in a federal district court in Missouri.[476] THE PROBLEM OF ENFORCEMENT; VIRGINIA _v._ WEST VIRGINIA A very important issue that presents itself in interstate litigation is the enforcement of the Court's decree, once it has been entered. In some types of suits, as Charles Warren has indicated, this issue may not arise; and if it does, it may be easily met. Thus a judgment putting a State in possession of disputed territory is ordinarily self-executing. But if the losing State should oppose execution, refractory State officials, as individuals, would be liable to civil suits or criminal prosecutions in the federal courts. Likewise an injunction decree may be enforced against State officials as individuals by civil or criminal proceedings. Those judgments, on the other hand, which require a State in its governmental capacity to perform some positive act present the issue of enforcement in more serious form. The issue arose directly in the long and much litigated case between Virginia and West Virginia over the proportion of the State debt of original Virginia owed by West Virginia after its separate admission to the Union under a compact which provided that West Virginia assume a share of the debt. The suit was begun in 1906, and a judgment was rendered against West Virginia in 1915. Finally in 1917 Virginia filed a suit against West Virginia to show cause why, in default of payment of the judgment, an order should not be entered directing the West Virginia legislature to levy a tax for payment of the judgment.[477] Starting with the rule that the judicial power essentially involves the right to enforce the results of its exertion,[478] the Court proceeded to hold that it applied with the same force to States as to other litigants,[479] and to consider appropriate remedies for the enforcement of its authority. In this connection, Chief Justice White declared: "As the powers to render the judgment and to enforce it arise from the grant in the Constitution on that subject, looked at from a generic point of view, both are federal powers and, comprehensively considered, are sustained by every authority of the federal government, judicial, legislative, or executive, which may be appropriately exercised."[480] The Court, however, left open the question of its power to enforce the judgment under existing legislation and scheduled the case for reargument at the next term, but in the meantime West Virginia accepted the Court's judgment and entered into an agreement with Virginia to pay it.[481] Controversies Between a State and Citizens of Another State The decision in Chisholm _v._ Georgia[482] that this category of cases included equally those where a State was a party defendant provoked the proposal and ratification of the Eleventh Amendment, and since then controversies between a State and citizens of another State have included only those cases where the State has been a party plaintiff or has consented to be sued. As a party plaintiff, a State may bring actions against citizens of other States to protect its legal rights or as _parens patriae_ to protect the health and welfare of its citizens. In general, the Court has tended to construe strictly this grant of judicial power which simultaneously comes within its original jurisdiction by perhaps an even more rigorous application of the concepts of cases and controversies than that in cases between private parties.[483] This it does by holding rigorously to the rule that all the party defendants be citizens of other States,[484] and by adhering to Congressional distribution of its original jurisdiction concurrently with that of other federal courts.[485] NON-JUSTICIABLE CONTROVERSIES The Supreme Court has refused to take jurisdiction of a number of suits brought by States because of the lack of a justiciable controversy. In cases like Mississippi _v._ Johnson[486] and Georgia _v._ Stanton,[487] the political nature of the controversy constituted the dominant reason. In others, like Massachusetts _v._ Mellon[488] and Florida _v._ Mellon,[489] the political issue, though present, was accompanied by the inability of a State to sue in behalf of its citizens as _parens patriae_ to contest the validity of an act of Congress when in national matters the National Government bore the relation of _parens patriae_ to the same persons as citizens of the United States. Moreover, a State may not bring a suit in its own name for the benefit of particular persons.[490] JURISDICTION CONFINED TO CIVIL CASES In Cohens _v._ Virginia[491] there is a dictum to the effect that the original jurisdiction of the Supreme Court does not include suits between a State and its own citizens. Long afterwards, the Supreme Court dismissed an action for want of jurisdiction because the record did not show the corporation against which the suit was brought was chartered in another State.[492] Subsequently the Court has ruled that it will not entertain an action by a State to which its citizens are either parties of record, or would have to be joined because of the effect of a judgment upon them.[493] In his dictum in Cohens _v._ Virginia, Chief Justice Marshall also indicated that perhaps no jurisdiction existed over suits by States to enforce their penal laws.[494] Sixty-seven years later the Court wrote this dictum into law in Wisconsin _v._ Pelican Insurance Co.[495] Here Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly on the rule of international law that the courts of no country execute the penal laws of another, partly upon the 13th section of the Judiciary Act of 1789 which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a State is a party, and partly on Justice Iredell's dissent in Chisholm _v._ Georgia,[496] where he confined the term "controversies" to civil suits, Justice Gray ruled for the Court that for purposes of original jurisdiction, "controversies between a State and citizens of another State" are confined to civil suits.[497] SUITS BY A STATE AS _PARENS PATRIAE_; JURISDICTION DECLINED The distinction between suits brought by States to protect the welfare of the people as a whole and suits to protect the private interests of individual citizens is not easily drawn. In Oklahoma ex rel. Johnson _v._ Cook,[498] the Court dismissed a suit brought by Oklahoma to enforce the statutory liability of a stockholder of a State bank then in the process of liquidation through a State officer. Although the State was vested with legal title to the assets under the liquidation procedure, the State's action was independent of that and it was acting merely for the benefit of the bank's creditors and depositors. A generation earlier the Court refused jurisdiction of Oklahoma _v._ Atchison, Topeka & Santa Fe R. Co.[499] in which Oklahoma sought to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, inasmuch as the State was not engaged in shipping these commodities and had no proprietary interest in them. SUITS BY A STATE AS _PARENS PATRIAE_; JURISDICTION ACCEPTED Georgia _v._ Evans,[500] on the other hand, presents the case of a clear State interest as a purchaser of materials. Here, Georgia sued certain asphalt companies for treble damages under the Sherman Act arising allegedly out of a conspiracy to control the prices of asphalt of which Georgia was a large purchaser. The matter of Georgia's interest was not contested and did not arise. The case is primarily significant for the ruling that a State is a person under section 7 of the Sherman Act authorizing suits by "any person" for treble damages arising out of violations of the Sherman Act. A less clear-cut case, and one not altogether in accord with Oklahoma _v._ Atchison, Topeka & Santa Fe R. Co.,[501] is Georgia _v._ Pennsylvania R. Co.[502] in which the State, suing as _parens patriae_ and in its proprietary capacity, was permitted to file a bill of complaint against twenty railroads for injunctive relief from freight rates, allegedly discriminatory against the State and asserted to have been fixed through coercive action by the northern roads against the southern roads in violation of the 16th section of the Clayton Act. Although the rights of Georgia were admittedly based on federal laws, the Court indicated that the enforcement of the Sherman and Clayton acts depends upon civil as well as criminal sanctions. Moreover, the interests of a State for purposes of invoking the original jurisdiction of the Supreme Court were held, as in Georgia _v._ Tennessee Copper Co.,[503] not to be confined to those which are proprietary but to "embrace the so-called 'quasi-sovereign' interests which * * * are 'independent of and behind the titles of its citizens, in all the earth and air within its domain.'"[504] GEORGIA _v._ PENNSYLVANIA RAILROAD In the course of his opinion Justice Douglas, speaking for a narrowly divided Court, treated the alleged injury to Georgia as a proprietor as a "makeweight," and remarked that the "original jurisdiction of this Court is one of the mighty instruments which the framers of the Constitution provided so that adequate machinery might be available for the peaceful settlement of disputes between States and between a State and citizens of another State * * * Trade barriers, recriminations, intense commercial rivalries had plagued the colonies. The traditional methods available to a sovereign for the settlement of such disputes were diplomacy and war. Suit in this Court was provided as an alternative."[505] Discriminatory freight rates, said he, may cause a blight no less serious than noxious gases in that they may arrest the development of a State and put it at a competitive disadvantage. "Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia's interest is not remote; it is immediate. If we denied Georgia as _parens patriae_ the right to invoke the original jurisdiction of the Court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction."[506] Controversies Between Citizens of Different States THE MEANING OF "STATE"; HEPBURN _v._ ELLZEY Despite stringent definitions of the words "citizen" and "State" and strict statutory safeguards against abuse of the jurisdiction arising out of it, the diversity of citizenship clause is one of the more prolific sources of federal jurisdiction. In Hepburn _v._ Ellzey,[507] Chief Justice Marshall, speaking for the Court, confined the meaning of the word "State," as used in the Constitution, to "the members of the American confederacy" and ruled that a citizen of the District of Columbia could not sue a citizen of Virginia on the basis of diversity of citizenship. In the course of his brief opinion Marshall owned that it was "extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every State in the union should be closed" to the residents of the District, but the situation, he indicated, was "a subject for legislative, not for judicial consideration."[508] The same restrictive rule was later extended to citizens of territories of the United States.[509] Extension of Jurisdiction by the Act of 1940 Whether Chief Justice Marshall had in mind a constitutional amendment or an act of Congress when he spoke of legislative consideration is not clear. At any rate, not until 1940 did Congress enact a statute to confer on federal district courts jurisdiction of civil actions (involving no federal question) "between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska and any State or Territory."[510] In National Mutual Insurance Co. _v._ Tidewater Transfer Co.,[511] this act was sustained by five judges, but for widely different reasons. Justice Jackson, in an opinion in which Justices Black and Burton joined, was for adhering to the rule that the District of Columbia is not a State, but held the act to be valid nevertheless because of the exclusive and plenary power of Congress to legislate for the District and its broad powers under the necessary and proper clause.[512] Justice Rutledge, in a concurring opinion, in which Justice Murphy joined, agreed that the act was valid and asserted that the Ellzey case should be overruled.[513] Chief Justice Vinson in a dissent in which Justice Douglas concurred[514] and Justice Frankfurter in a dissent in which Justice Reed joined[515] thought the act invalid and would have adhered to the rule in the Ellzey case. The net result is that the Ellzey case still stands insofar as it holds that the District of Columbia is not a State, but that under Congressional enactment citizens of the District may now sue citizens of States in the absence of a federal question, on the basis of no statable constitutional principle, but through the grace of what Justice Frankfurter called "conflicting minorities in combination."[516] CITIZENSHIP, NATURAL PERSONS For purposes of diversity jurisdiction State citizenship is determined by domicile or residence, for the determination of which various tests have been stated: removal to a State, acquiring real estate there, and paying taxes;[517] residence in a State for a considerable time;[518] and removal to a State with the intent of making it one's home for an indefinite period of time.[519] Where citizenship is dependent on intention, acts may disclose it more satisfactorily than declarations.[520] The fact that removal to another State is motivated solely by a desire to acquire citizenship for diversity purposes does not oust the federal courts of jurisdiction so long as the new residence is indefinite or the intention to reside there indefinitely is shown.[521] But a mere temporary change of domicile for the purpose of suing in a federal court is not sufficient to effectuate a change in citizenship.[522] Exercise of the right of suffrage is a conclusive test of citizenship in a State, and the acquisition of the right to vote without exercising it is sufficient to establish citizenship.[523] CITIZENSHIP, CORPORATIONS In Bank of United States _v._ Deveaux,[524] Chief Justice Marshall declared: "That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and consequently cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name." He proceeded then to look beyond the corporate entity and hold that the bank could sue under the diversity provisions of the Constitution and the Judiciary Act of 1789 because the members of the bank as a corporation were citizens of one State and Deveaux was a citizen of another. This holding was reaffirmed a generation later, in Commercial and Railroad Bank of Vicksburg _v._ Slocomb,[525] at a time when corporations were coming to play a more important role in the national economy. The same rule, combined with the rule that in a diversity proceeding all the persons on one side of a suit must be citizens of different States from all persons on the other side,[526] could in the course of time have closed the federal courts in diversity cases to the larger corporations having stockholders in all or most of the States. If such corporations were to have the benefits of diversity jurisdiction, either the Deveaux or the Strawbridge rule would have to yield. By 1844, only four years after the Slocomb Case, the interests of corporations in docketing cases in the federal courts as citizens of different States appeared more important to the Supreme Court than the weight to be attached to precedents, even those set by John Marshall, and in Louisville, Cincinnati, and Charleston R. Co. _v._ Letson,[527] both the Deveaux and Slocomb cases were overruled. After elaborate arguments by counsel, the Court, speaking through Justice Wayne, held that "a corporation created by and doing business in a particular State, is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same State, for the purposes of its incorporation, capable of being treated as a citizen of that State, as much as a natural person."[528] In the Letson Case the emphasis is upon the place of incorporation of a joint stock company as something completely separate from the citizenship of its members. In succeeding cases, however, this fiction of corporate personality has undergone modifications so that a corporation, though still a citizen of the State where it is chartered, is such by virtue of the jurisdictional fiction that all the stockholders are citizens of the State which by its laws created the corporation.[529] This presumption is conclusive and irrebuttable and resembles in many ways the English jurisdictional fiction that for providing remedies for wrongs done in the Mediterranean "the Island of Minorca was at London, in the Parish of St. Mary Le Bow in the Ward of Cheap."[530] This fiction creates a logical anomaly, which the Letson rule had avoided, in those cases in which a stockholder of one State sues a corporation chartered in another State. Although all stockholders are conclusively presumed to be citizens of the State where the corporation is chartered, an individual stockholder from a different State may nevertheless aver his actual citizenship so as to maintain a diversity suit against the corporation.[531] These rulings lead to some extraordinary results, as John Chipman Gray has indicated: "The Federal courts take cognizance of a suit by a stockholder who is a citizen, say, of Kentucky, against the corporation in which he owns stock, which has been incorporated, say, by Ohio. Since he is a stockholder of an Ohio corporation, the court conclusively presumes that he is a citizen of Ohio, but if he were a citizen of Ohio, he could not sue an Ohio corporation in the Federal courts. Therefore the court considers that he is and he is not at the same time a citizen of Ohio, and it would have no jurisdiction unless it considered that he both was and was not at the same time a citizen both of Ohio and Kentucky."[532] The Black and White Taxicab Case These fictions of corporate citizenship make it easy for corporations to go into the federal courts on matters of law that are purely local in nature, and they have availed themselves of the opportunity to the full. For a time the Supreme Court tended to look askance at collusory incorporations and the creation of dummy corporations for purposes of getting cases into the federal courts,[533] but as a result of the Kentucky Taxicab Case,[534] decided in 1928, the limitation of collusion lost much of its force. Here the Black and White company, a Kentucky corporation, dissolved itself and obtained a charter as a Tennessee corporation in order to get the benefit of a federal rule which would condone an exclusive contract with a railroad to park its cabs in and around a station whereas the State rule forbade such contracts. The only change made was of the State of incorporation. The name of the company, its officers, and shareholders, and the location of its business all remained the same. Yet no collusion was found, and the company received the benefit of the federal rule--a measure of salvation by being born again in Tennessee. The odd result in the Taxicab Case, whereby citizens of Kentucky could conduct business there contrary to State law with the sanction of the Supreme Court of the United States, did not stem solely from the rule that the citizenship of a corporation is determined by the State of its incorporation, but also from this rule combined with the rule of Swift _v._ Tyson,[535] another by-product of diversity jurisdiction. THE LAW APPLIED IN DIVERSITY CASES: SWIFT _v._ TYSON Section 34 of the Judiciary Act of 1789 provided that in diversity cases at common law the laws of the several States should be the rules of decision in the United States courts. However, in Swift _v._ Tyson[536] the Supreme Court refused to apply this section on the ground that it did not extend to contracts or instruments of a commercial nature, the interpretation of which therefore ought to be according to "the general principles and doctrines of jurisprudence"; and while the decisions of State courts on such subjects were entitled to and would receive attention and respect, they could not be conclusive or binding upon the federal courts.[537] Extension of the Tyson Case For ninety-six years the Court followed this opinion, which the other Justices saw only the evening before it was delivered, and which invoked a precedent of Lord Mansfield on the law of the sea and an epigram of Cicero on the law of nature.[538] Later decisions expanded the concept of matters of a commercial nature so that the scope of the Tyson rule was greatly extended.[539] In many instances the State courts followed their own rules of decision even when contrary to the federal rules, so that Justice Story's attempt at uniformity in matters of a commercial nature paradoxically led to a greater diversity and to the mischief in many instances of two conflicting rules of law in the same State, with the outcome of suits dependent upon whether the case was docketed in a State or a federal court. Simultaneously, the Supreme Court was holding under the Tyson rule that the federal courts were not bound by decisions of State courts interpreting State constitutions[540] or State statutes.[541] The Tyson Rule Protested Moreover, decisions extending the scope of the Tyson rule were frequently rendered by a divided Court over the strong protests of dissenters.[542] In Baltimore and Ohio R. Co. _v._ Baugh,[543] which further projected the Tyson rule into the law of torts in disregard of State law, Justice Field wrote a sharp dissent in which he indicated an opinion that the Supreme Court's disregard of State court decisions was unconstitutional. Such disregard, nevertheless, was further aggravated in Kuhn _v._ Fairmont Coal Co.,[544] where the Court held that in construing a contract in a case involving real estate and mining law a federal court was not bound by a West Virginia decision touching the same subject. This evoked a provocative dissent from Justice Holmes, who later wrote one of his more famous dissents in the Black and White Taxicab Company case,[545] in which he asserted emphatically that the Court's extensions of the Tyson rule were unconstitutional.[546] ERIE RAILROAD CO. _v._ TOMPKINS; TYSON OVERRULED Increasing criticism of the Tyson rule led to a restriction of it in Mutual Life Ins. Co. _v._ Johnson,[547] where the Court chose to apply Virginia decisions rather than exercise its independent judgment on the ground that the case was "balanced with doubt."[548] The federal judicial power was subordinated to what Justice Cardozo called "a benign and prudent comity."[549] Four years later, and without further preparation other than a change in two of the Justices, the Court overturned Swift _v._ Tyson and its judicial progeny in Erie Railroad Co. _v._ Tompkins,[550] in an opinion by Justice Brandeis which is remarkable in a number of ways. In the first place, it reversed a ninety-six year old precedent which counsel had not questioned; secondly, for the first and only time in American constitutional history, it held action of the Supreme Court itself to have been unconstitutional, to wit, action taken by it in reliance on its interpretation of the 34th section of the Judiciary Act of 1789, a question which also was not before the Court; and thirdly, it completely ignored the power of Congress under the commerce clause, as well as its power to prescribe rules of decision for the federal courts in the cases enumerated in article III. Like the Fairmont Coal and Taxicab cases, the Tompkins Case presented the possibility of a head-on conflict between State and federal rules of decision. Tompkins was seriously injured by a passing freight train while he was walking along the railroad's right of way in Pennsylvania. As a citizen of Pennsylvania, Tompkins could have sued in that State, but he could also have sued in the federal district court in Pennsylvania, or in New York because the railroad was incorporated in the latter State. He elected to sue in the federal court for the southern district of New York, where he obtained a verdict for $30,000 after the trial judge had ruled that the applicable law did not preclude recovery. The circuit court of appeals affirmed the judgment because it thought it unnecessary to consider whether the law of Pennsylvania precluded recovery, inasmuch as the question was one of general law to be decided by the federal courts in the exercise of their independent judgment. Citing Warren's discovery that Swift _v._ Tyson was an erroneous interpretation of the Judiciary Act of 1789, criticism of the Tyson doctrine both on and off the bench, and the political and social defects of the rule in working discriminations against citizens of a State in favor of noncitizens and in producing injustice and confusion, Justice Brandeis declared: "If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely * * * [followed for] nearly a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so. * * * There is, [he continued], no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or 'general,' be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts."[551] After quoting Justice Field and Justice Holmes on the unconstitutionality of the Tyson rule, Justice Brandeis made it clear that the Court was not invalidating § 34 of the Federal Judiciary Act of 1789, but was merely declaring that the Supreme Court and the lower federal courts had, in their application of it, "invaded rights which * * * are reserved by the Constitution to the several States."[552] Justice Butler, joined by Justice McReynolds, concurred in the result, because in his view Tompkins was not entitled to damages under general law, but he deprecated the reversal of Swift _v._ Tyson. He also objected to the decision of the constitutional issue as unnecessary.[553] Justice Reed likewise concurred, but thought it questionable to raise the constitutional issue. "If the opinion, [said he], commits this Court to the position that the Congress is without power to declare what rules of substantive law shall govern the federal courts, that conclusion also seems questionable."[554] Extension of the Tompkins Rule Since 1938 the federal courts have been most assiduous in following the decisions of the State courts in diversity cases. The decisions followed, moreover, include not only those of the highest State courts, but those also of intermediate courts. In West _v._ American Telephone and Telegraph Co.[555] the Supreme Court held that a decision of an Ohio county court of appeals which the Supreme Court of the State had declined to review was binding on the lower federal courts regardless of the desirability of the rule of the decision or of the belief that the highest court of the State might establish a different rule in future litigation. In Fidelity Union Trust Co. _v._ Field[556] the Court went even farther and ruled that the lower courts were bound to follow the decisions of two chancery courts in New Jersey although there had been no appeal to the highest State court, and obviously other New Jersey courts were not bound by the decisions of two vice-chancellors. The anomaly of this decision was partially removed in King _v._ Order of United Commercial Travelers,[557] where the Court held that the federal courts were not bound by the decision of a court of first instance of South Carolina, which was the only decision applicable to the interpretation of the insurance policy in dispute. Nor is this the whole story. In the event of a State Supreme Court's reversal of its earlier decisions the federal courts are bound by the latest decision. Hence a judgment of a federal district court, correctly applying State law as interpreted by the State's highest court, must be reversed on appeal if the State court in the meantime has reversed its earlier rulings and adopted a contrary interpretation. Though aware of possible complications from this rule, the Court insisted that "until such time as a case is no longer _sub judice_, the duty rests upon the federal courts to apply the Rules of Decision statute in accordance with the then controlling decision of the highest state court."[558] Although the Rules of Decision Act[559] requires the federal courts to follow State decisions only in civil cases, the application of the Tompkins rule has been extended to suits in equity.[560] In Guaranty Trust Co. _v._ York,[561] the Court held that when a statute of limitations barred recovery in a State court, a federal court sitting in equity could not entertain the suit because of diversity of citizenship. This ruling was based on the express premise that "a federal court adjudicating a State-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, * * * "[562] It was held to be immaterial, therefore, whether statutes of limitations were designated as substantive or procedural. The Tompkins Case, it was said, was not an endeavor to formulate scientific legal terminology. "In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court."[563] Controversies Between Citizens of the Same State Claiming Lands Under Grants of Different States This clause was not in the first draft of the Constitution, but was added without objection.[564] Undoubtedly the motivation for this extension of the judicial power was the existence of boundary disputes affecting ten States at the time the Philadelphia Convention met. With the Northwest Ordinance of 1787, the ultimate settlement of boundary disputes between States, and the passing of land grants by States, this clause, never productive of many cases, has become obsolete.[565] Controversies Between a State, or the Citizens Thereof, and Foreign States, Citizens or Subjects The scope of this jurisdiction has been limited both by judicial decisions and the Eleventh Amendment. By judicial application of the Law of Nations a foreign State is immune from suit in the federal courts without its consent,[566] an immunity which extends to suits brought by States of the American Union.[567] Conversely, the Eleventh Amendment has been construed to bar suits by foreign States against a State of the American Union.[568] Consequently, the jurisdiction conferred by this clause comprehends only suits brought by a State against citizens or subjects of foreign States, by foreign States against American citizens, citizens of a State against the citizens or subjects of a foreign State, and by aliens against citizens of a State. SUITS BY FOREIGN STATES The privilege of a recognized foreign State to sue in the courts of a foreign State upon the principle of comity is recognized by both International Law and American Constitutional Law.[569] To deny a sovereign this privilege "would manifest a want of comity and friendly feeling."[570] Although national sovereignty is continuous, a suit in behalf of a national sovereign can be maintained in the courts of the United States only by a government which has been recognized by the political branches of our own government as the authorized government of the foreign State.[571] Once a foreign government avails itself of the privilege of suing in the courts of the United States, it subjects itself to the procedure and rules of decision governing those courts and accepts whatever liabilities the Court may decide to be a reasonable incident of bringing the suit.[572] Also, certain of the benefits extending to the domestic sovereign do not extend to a foreign sovereign suing in the courts of the United States. Thus a foreign sovereign does not receive the benefit of the rule which exempts the United States and its member States from the operation of the statute of limitations, because considerations of public policy back of the rule are regarded as absent.[573] Indian Tribes Within the terms of article III, an Indian tribe is not a foreign State and hence cannot sue in the courts of the United States. This rule was applied in the case of Cherokee Nation _v._ Georgia,[574] where Chief Justice Marshall conceded that the Cherokee Nation was a State, but not a foreign State, being a part of the United States and dependent upon it. Other passages of the opinion specify the elements essential to a foreign State for purposes of jurisdiction, such as sovereignty and independence. NARROW CONSTRUCTION OF THE JURISDICTION As in cases of diversity jurisdiction, suits brought to the federal courts under this category must clearly state in the record the nature of the parties. As early as 1809 the Supreme Court ruled that a federal court could not take jurisdiction of a cause where the defendants were described in the record as "late of the district of Maryland," but were not designated as citizens of Maryland, and plaintiffs were described as aliens and subjects of the United Kingdom.[575] The meticulous care manifested in this case appeared twenty years later when the Court narrowly construed section 11 of the Judiciary Act of 1789, vesting the federal courts with jurisdiction where an alien was a party, in order to keep it within the limits of this clause. The judicial power was further held not to extend to private suits in which an alien is a party, unless a citizen is the adverse party.[576] This interpretation was extended in 1870 by a holding that if there is more than one plaintiff or defendant, each plaintiff or defendant must be competent to sue or liable to suit.[577] These rules, however, do not preclude a suit between citizens of the same State if the plaintiffs are merely nominal parties and are suing on behalf of an alien.[578] Clause 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Original Jurisdiction of the Supreme Court AN AUTONOMOUS JURISDICTION Acting on the assumption that its existence is derived directly from the Constitution, the Supreme Court has held since 1792 that its original jurisdiction flows directly from the Constitution and is therefore self-executing without further action by the Congress. In the famous case of Chisholm _v._ Georgia[579] the Supreme Court entertained an action of assumpsit against Georgia by a citizen of another State. Although the 13th section of the Judiciary Act of 1789 invested the Supreme Court with original jurisdiction in suits between a State and citizens of another State, it did not authorize actions of assumpsit in such cases, nor did it prescribe forms of process for the Court in the exercise of original jurisdiction. Over the dissent of Justice Iredell, the Court in opinions by Chief Justice Jay and Justices Blair, Wilson, and Cushing, sustained its jurisdiction and its power, in the absence of Congressional enactments, to provide forms of process and rules of procedure. So strong were the States' rights sentiments of the times that Georgia refused to appear as a party litigant, and other States were so disturbed that the Eleventh Amendment was proposed forthwith and ratified. This amendment, however, did not affect the direct flow of original jurisdiction to the Court, which continued to take jurisdiction of cases to which a State was party plaintiff and of suits between States without specific provision by Congress for forms of process. By 1861 Chief Justice Taney could enunciate with confidence, after a review of the precedents, that in all cases where original jurisdiction is given by the Constitution, the Supreme Court has authority "to exercise it without further act of Congress to regulate its powers or confer jurisdiction, and that the Court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice."[580] CANNOT BE ENLARGED; MARBURY _v._ MADISON Since the original jurisdiction is derived directly from the Constitution, it follows logically that Congress can neither restrict it nor, as was held in the great case of Marbury _v._ Madison,[581] enlarge it. In holding void the 13th section of the Judiciary Act of 1789, which was interpreted as giving the Court power to issue a writ of mandamus in an original proceeding, Chief Justice Marshall declared that "a negative or exclusive sense" had to be given to the affirmative enunciation of the cases to which original jurisdiction extends.[582] While the rule that the Supreme Court is vested with original jurisdiction by the Constitution and that this jurisdiction cannot be extended or restricted deprives Congress of any power to define it, it allows a considerable latitude of interpretation to the Court itself. In some cases, as in Missouri _v._ Holland,[583] the Court has manifested a tendency toward a liberal construction of original jurisdiction; in others, as in Massachusetts _v._ Mellon,[584] it has placed a narrow construction upon the grant through the device of a restrictive interpretation of cases and controversies; and in still other cases, as in California _v._ Southern Pacific Co.,[585] it has stated that its original jurisdiction "is limited and manifestly to be sparingly exercised, and should not be expanded by construction." CONCURRENT JURISDICTION OF THE LOWER FEDERAL COURTS Although Congress can neither enlarge nor restrict the original jurisdiction of the Supreme Court, it may vest concurrent jurisdiction in the lower federal courts in cases over which the Supreme Court has original jurisdiction.[586] Thus among the grounds given for the decision in Wisconsin _v._ Pelican Insurance Co.,[587] that the Court had no original jurisdiction of an action by a State to enforce a judgment for a pecuniary penalty awarded by one of its own courts, was the provision of the 13th section of the Judiciary Act of 1789[588] that "the Supreme Court shall have exclusive jurisdiction of controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also between a State and citizens of other States, or aliens, in which latter case it shall have original but not exclusive jurisdiction." Speaking of that act with particular reference to this section, Justice Gray declared that it "was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning."[589] In cases affecting consuls, moreover, the original jurisdiction of the Supreme Court is shared concurrently with State courts unless Congress by positive action makes such jurisdiction exclusive.[590] The Appellate Jurisdiction of the Supreme Court SUBJECT TO LIMITATION BY CONGRESS Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to control by Congress in the exercise of the broadest discretion. Although the provisions of article III seem, superficially at least, to imply that its appellate jurisdiction would flow directly from the Constitution until Congress should by positive enactment make exceptions to it, rulings of the Court since 1796 establish the contrary rule. Consequently, before the Supreme Court can exercise appellate jurisdiction, an act of Congress must have bestowed it, and affirmative bestowals of jurisdiction are interpreted as exclusive in nature so as to constitute an exception to all other cases. This rule was first applied in Wiscart _v._ Dauchy[591] where the Court held that in the absence of a statute prescribing a rule for appellate proceedings, the Court lacked jurisdiction. It was further stated that if a rule were prescribed, the Court could not depart from it. Fourteen years later Chief Justice Marshall observed for the Court that its appellate jurisdiction is derived from the Constitution, but proceeded nevertheless to hold that an affirmative bestowal of appellate jurisdiction by Congress, which made no express exceptions to it, implied a denial of all others.[592] The McCardle Case The power of Congress to make exceptions to the court's appellate jurisdiction has thus become, in effect, a plenary power to bestow, withhold, and withdraw appellate jurisdiction, even to the point of its abolition. And this power extends to the withdrawal of appellate jurisdiction even in pending cases. In the notable case of Ex parte McCardle,[593] a Mississippi newspaper editor who was being held in custody by the military authorities acting under the authority of the Reconstruction Acts filed a petition for a writ of _habeas corpus_ in the circuit court for Southern Mississippi. He alleged unlawful restraint and challenged the validity to the Reconstruction statutes. The writ was issued, but after a hearing the prisoner was remanded to the custody of the military authorities. McCardle then appealed to the Supreme Court which denied a motion to dismiss the appeal, heard arguments on the merits of the case, and took it under advisement. Before a conference could be held, Congress, fearful of a test of the Reconstruction Acts, enacted a statute withdrawing appellate jurisdiction from the Court in certain _habeas corpus_ proceedings.[594] The Court then proceeded to dismiss the appeal for want of jurisdiction. Chief Justice Chase, speaking for the Court said: "Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is the power to declare the law and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the cause."[595] Although the McCardle Case goes to the ultimate in sustaining Congressional power over the court's appellate jurisdiction and although it was born of the stresses and tensions of the Reconstruction period, it has been frequently reaffirmed and approved.[596] The result is to vest an unrestrained discretion in Congress to curtail and even abolish the appellate jurisdiction of the Supreme Court, and to prescribe the manner and forms in which it may be exercised. This principle is well expressed in The "Francis Wright"[597] where the Court sustained the validity of an act of Congress which limited the court's review in admiralty cases to questions of law appearing on the record. A portion of the opinion is worthy of quotation: "Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not. To our minds it is no more unconstitutional to provide that issues of fact shall not be retried in any case, than that neither issues of law nor fact shall be retried in cases where the value of the matter in dispute is less than $5,000. The general power to regulate implies the power to regulate in all things. The whole of a civil appeal may be given, or a part. The constitutional requirements are all satisfied if one opportunity is had for the trial of all parts of a case. Everything beyond that is a matter of legislative discretion."[598] The Power of Congress To Regulate the Jurisdiction of the Lower Federal Courts MARTIN _v._ HUNTER'S LESSEE The power of Congress to vest, withdraw, and regulate the jurisdiction of the lower federal courts is derived from the power to create tribunals under article I, the necessary and proper clause, and the clause in article III, vesting the judicial power in the Supreme Court and such inferior courts as "the Congress may from time to time ordain and establish." Balancing these provisions, however, are the phrases in article III to the effect that the judicial power "shall be vested" in courts and "shall extend" to nine classes of cases and controversies and the question of what is the force of the word "shall." In Martin _v._ Hunter's Lessee,[599] Justice Story declared obiter that it was imperative upon Congress to create inferior federal courts and vest in them all the jurisdiction they were capable of receiving. This dictum was criticized by Justice Johnson in his dissent, in which he contended that the word "shall" was used "in the future sense," and had "nothing imperative in it."[600] And for that matter in another portion of his opinion Justice Story expressly recognized that Congress may create inferior courts and "parcel out such jurisdiction among such courts, from time to time at their own pleasure";[601] and in his Commentaries he took a broad view of the power of Congress to regulate jurisdiction.[602] PLENARY POWER OF CONGRESS OVER JURISDICTION Neither legislative construction nor judicial interpretation has sustained Justice Story's position in Martin _v._ Hunter's Lessee. The Judiciary Act of 1789, which was a contemporaneous interpretation of the Constitution by the Congress, rests on the assumption of a broad discretion on the part of Congress to create courts and to grant jurisdiction to and withhold it from them. This act conferred original jurisdiction upon the district and circuit courts in certain cases, but by no means all they were capable of receiving. Thus suits at the common law to which the United States was a party were limited by the amount in controversy. Except for offenses against the United States, seizures and forfeitures made under the impost, navigation, or trade laws of the United States, and suits by aliens under International Law or treaties, that whole group of cases involving the Constitution, laws, and treaties of the United States was withheld from the jurisdiction of the district and circuit courts,[603] with the result that original jurisdiction in these cases was exercised by the State courts subject to appeal to the Supreme Court under section 25. Jurisdiction was vested in the district courts over admiralty and maritime matters and in the circuit courts over suits between citizens of different States where the amount exceeded $500, or suits to which an alien was a party.[604] The act of 1789 empowered the courts to issue writs, to require parties to produce testimony, to punish contempts, to make rules, and to grant stays of execution.[605] Finally, equity jurisdiction was limited to those cases where a "plain, adequate, and complete remedy" could not be had at law.[606] This care for detail in conferring jurisdiction upon the inferior courts and vesting them with ancillary powers in order to render such jurisdiction effective is of the utmost significance in the later development of the law pertaining to Congressional regulation of jurisdiction, inasmuch as it demonstrates conclusively that a majority of the members of the first Congress regarded positive action on the part of Congress to be necessary before jurisdiction and judicial powers could be exercised by courts of its own creation. Ten years later this practical construction of article III was accepted by the Supreme Court in Turner _v._ Bank of North America.[607] The case involved an attempt to recover on a promissory note in a diversity case contrary to § 11 of the act of 1789 which forbade diversity suits involving assignments unless the suit was brought before the assignment was made. Counsel for the bank argued that the circuit courts were not inferior courts and that the grant of judicial power by the Constitution was a direct grant of jurisdiction. This argument evoked questions from Chief Justice Ellsworth and the following statement from Justice Chase: "The notion has been frequently entertained, that the federal courts derive their power immediately from the Constitution; but the political truth is, that the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise; and if Congress has not given the power to us, or to any other court, it still remains at the legislative disposal. Besides, Congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the Constitution might warrant."[608] The Court applied § 11 of the Judiciary Act and ruled that the circuit court lacked jurisdiction. Eight years later Chief Justice Marshall in distinguishing between common law and statutory courts declared that "courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction."[609] This rule was reaffirmed in the famous case of United States _v._ Hudson and Goodwin[610] on the assumption that the power of Congress to create inferior courts necessarily implies "the power to limit the jurisdiction of those Courts to particular objects."[611] After pointing to the original jurisdiction which flows immediately from the Constitution, Justice Johnson asserted: "All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer."[612] To the same affect is Rhode Island _v._ Massachusetts[613] where Justice Baldwin declared that "the distribution and appropriate exercise of the judicial power must therefore be made by laws passed by Congress and cannot be assumed by any other department * * *" A more sweeping assertion of Congressional power over jurisdiction was made by the Supreme Court in Cary _v._ Curtis,[614] which bears more directly upon the issue than some of the earlier cases. Here counsel had argued that a statute which made final the decisions of the Secretary of the Treasury in tax disputes was unconstitutional in that it deprived the federal courts of the judicial power vested in them by the Constitution. In reply to this argument the Court speaking through Justice Daniel declared: "The judicial power of the United States * * * is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) * * * and of investing them with jurisdiction, either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good." Continuing, Justice Daniel said: "It follows then that courts created by statute, must look to the statute as the warrant for their authority; certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may clearly be denied to them."[615] The principles of Cary _v._ Curtis were reiterated five years later in Sheldon _v._ Sill[616] where the validity of § 11 of the Judiciary Act of 1789 was directly questioned. The assignee of a negotiable instrument filed a suit in a circuit court even though no diversity of citizenship existed as between the original parties to the mortgage. The circuit court entertained jurisdiction in spite of the prohibition against such suits in § 11 and ordered a sale of the property in question. On appeal to the Supreme Court, counsel for the assignee contended that § 11 was void because the right of a citizen of any State to sue citizens of another in the federal courts flowed directly from article III and Congress could not restrict that right. The Supreme Court unanimously rejected these contentions and held that since the Constitution had not established the inferior courts or distributed to them their respective powers, and since Congress had the authority to establish such courts, it could define their jurisdiction and withhold from any court of its own creation jurisdiction of any of the enumerated cases and controversies in article III.[617] Sheldon _v._ Sill has been cited, quoted, and reaffirmed many times.[618] Its effect and that of the cases following it is that as regards the jurisdiction of the lower federal courts two elements are necessary to confer jurisdiction: first, the Constitution must have given the courts the capacity to receive it, and second, an act of Congress must have conferred it. The manner in which the inferior federal courts acquire jurisdiction, its character, the mode of its exercise, and the objects of its operation are remitted without check or limitation to the wisdom of the legislature.[619] JUDICIAL POWER UNDER THE EMERGENCY PRICE CONTROL ACT The plenary power of Congress to withhold and restrict jurisdiction was given renewed vitality by the Emergency Price Control Act of 1942[620] and the cases arising therefrom. Fearful that the price control program might be effectively nullified by injunctions, Congress provided for a special court and special procedures for contesting the validity of price regulations. In Lockerty _v._ Phillips[621] the Supreme Court sustained the power of Congress to confine equity jurisdiction, to restrain enforcement of the act to the specially created Emergency Court of Appeals, with appeal to the Supreme Court. The Court went much farther than this in Yakus _v._ United States,[622] and held that the provision of the act conferring on the Emergency Court of Appeals and the Supreme Court exclusive jurisdiction to determine the validity of any regulation or order, and providing that no court should have jurisdiction or power to consider the validity of any regulation, precluded the plea of invalidity of such a regulation as a defense to its violation in a criminal proceeding in a district court. Although Justice Rutledge protested in his dissent that this provision of the act conferred jurisdiction on the district courts from which essential elements of the judicial power had been abstracted,[623] Chief Justice Stone declared for the majority that the provision presented no novel constitutional issue. LEGISLATIVE CONTROL OVER WRITS The authority of Congress to regulate the jurisdiction of the lower federal courts includes that of controlling the power of the courts to issue writs in cases where they have jurisdiction and to regulate other ancillary powers generally.[624] Among some of the more notable restrictions in this regard are the limitations on the power of courts to issue injunctions, particularly in the field of taxation and labor disputes. By the act of March 2, 1867,[625] Congress provided that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." There have never been any constitutional doubts concerning this provision, which was strictly applied for many years[626] until 1916 when the Supreme Court began to make exceptions[627] which in the later cases[628] made the provision so inefficacious that by October, 1935, more than 1600 suits had been filed to restrain the collection of processing taxes under the Agricultural Adjustment Act.[629] None of these cases, however, raises any issue other than that of statutory interpretation, and since 1936 the Court has interpreted the exceptions to the statute somewhat more strictly.[630] Injunctions in Labor Disputes; the Norris-LaGuardia Act The Norris-LaGuardia Act of 1932[631] is significant for its restrictions on the powers of the federal courts to issue injunctions in labor disputes in the form of requirements for hearings followed by findings that unlawful acts are threatened and will be committed unless restrained, or if already committed will be continued; that substantial injury to the property of complainants will ensue; that as to the relief granted greater injury will be inflicted upon complainants by denying relief than will be inflicted on defendants by granting it; that the complainants have no adequate remedy at law; and, finally, that the public officials charged with the protection of complainants' property are either unable or unwilling to do so. This act has been scrupulously applied by the Supreme Court, which has implicitly sustained its constitutionality by construing its restrictions liberally[632] in every case except United States _v._ United Mine Workers,[633] where it was held that the statute did not apply to suits brought by the United States to enjoin a strike in the coal industry while the Government technically was operating the mines. JUDICIAL POWER EQUATED WITH DUE PROCESS OF LAW Although the cases point to a plenary power in Congress to withhold jurisdiction from the inferior courts and to withdraw it at any time after it has been conferred, even as applied to pending cases, there are a few cases in addition to Martin _v._ Hunter's Lessee[634] which slightly qualify the cumulative effect of this impressive array of precedents. As early as 1856, the Supreme Court in Murray _v._ Hoboken Land and Improvement Co.[635] distinguished between matters of private right which from their nature were the subject of a suit at the common law, equity, or admiralty and cannot be withdrawn from judicial cognizance and those matters of public right which, though susceptible of judicial determination, did not require it and which might or might not be brought within judicial cognizance. Seventy-seven years later the Court elaborated this distinction in Crowell _v._ Benson,[636] which involved the finality to be accorded administrative findings of jurisdictional facts in compensation cases. In holding that an employer was entitled to a trial _de novo_ of the constitutional jurisdictional facts of the matter of the employer-employee relationship and of the occurrence of the injury in interstate commerce, Chief Justice Hughes, speaking for the majority fused the due process clause of Amendment V and article III, but emphasized that the issue ultimately was "rather a question of the appropriate maintenance of the Federal judicial power," and "whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency * * * for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend." To do so, contended the Chief Justice, "would be to sap the judicial power as it exists under the Federal Constitution and to establish a government of a bureaucratic character alien to our system, wherever constitutional rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes in effect finality in law."[637] JUDICIAL _VERSUS_ NONJUDICIAL FUNCTIONS The power of Congress to confer jurisdiction on the lower federal courts is qualified by the rule that before Congress can vest jurisdiction in the inferior courts, they must have the capacity to receive it. The capacity of the lower judiciary to receive jurisdiction is defined in the enumeration of cases and controversies in article III. Consequently in vesting courts with jurisdiction, Congress cannot go beyond this enumeration.[638] It follows from the rule that constitutional courts can perform only judicial functions that Congress, in vesting courts with jurisdiction, cannot impose upon them nonjudicial duties such as administering pensions,[639] deciding issues subject to later executive or legislative action,[640] rendering advisory opinions, or opinions which are not final and conclusive upon the parties,[641] or taking jurisdiction of matters from which any essential element of the judicial power has been abstracted.[642] To be sure, Congress may clothe some matters of an administrative nature with the mantle of a case or controversy and thereby make it a matter of judicial cognizance, as it has done with naturalization proceedings,[643] the administration of certain laws relating to the expulsion of aliens,[644] the limited administration of funds received from the Government of Mexico to compensate American citizens for claims against that government,[645] and, of course, the traditional administration of bankrupt enterprises through the medium of a receiver. Federal-State Court Relations PROBLEMS RAISED BY CONCURRENCY The American Federal System with its dual system of courts, exercising concurrent jurisdiction in a number of classes of cases, presents numerous possibilities of inter-court conflicts and interference. Subject to Congressional enactments to the contrary, the State courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in article III except suits between States, those to which the United States is a party, those to which a foreign state is a party, and cases of admiralty and maritime jurisdiction. Even in admiralty cases the State courts, though unable to exercise any portion of admiralty or maritime jurisdiction by delegation or otherwise,[646] may have a concurrent jurisdiction when the same issues assume the form of a case at common law.[647] In addition to conflicts arising out of concurrent jurisdiction, relations between federal and State courts are exposed to other frictions, such as injunctions in one jurisdiction restraining judicial processes in another, the use of the writ of _habeas corpus_ by a court of concurrent jurisdiction to release persons in custody of another, and the refusal by State courts to comply with orders of the Supreme Court. The relations between federal and State courts are governed in part by Constitutional Law with respect to State court interference with the federal courts and State court refusal to comply with the judgments of federal tribunals, by statutes as regards interference by federal courts with those of the States, and by self-imposed rules of comity applied for the avoidance of unseemly conflicts. DISOBEDIENCE OF SUPREME COURT ORDERS BY STATE COURTS The refusal of State courts to make returns on writs of errors issued by the Supreme Court has already been noted in connection with the disobedience of the Virginia courts in Martin _v._ Hunter's Lessee[648] and Cohens _v._ Virginia[649] and in that of the Wisconsin court in Ableman _v._ Booth.[650] More spectacular disobedience to federal authority arose out of the Cherokee Indian case involving actions of Georgia and its courts. In the first of these the Supreme Court had issued a writ of error to the Georgia Supreme Court to review the conviction of Corn Tassel for the murder of another Cherokee Indian. The writ was served, but before a hearing could be held Corn Tassel was executed on the day originally set for punishment contrary to the federal law that a writ of error superseded sentence until the appeal was decided. This action ensued as a result of the legislature's approval of the governor's policy that he would permit no interference with Georgia's courts by orders of the Supreme Court and would resist by force any attempt to enforce them with all the forces at his command.[651] Worcester _v._ Georgia Two years later Georgia renewed its defiance of the Supreme Court in Worcester _v._ Georgia[652] which involved the conviction of two missionaries for residing among the Indians without a license. The Supreme Court reversed the conviction on the ground that the State had no jurisdiction over the Cherokee reservations and ordered Worcester's discharge in a special mandate to the superior court of Gwinnett County. The State court ignored the mandate and once again the governor of the State announced that he would meet such usurpation by the Supreme Court with determined resistance. Consequently, Worcester and Butler remained in jail until they agreed to abandon further efforts for their discharge by federal authority in the form of a writ of error, whereupon the governor pardoned them on the condition that they leave the State. CONFLICTS OF JURISDICTION: COMITY Aside from these more dramatic assertions of independence of federal courts, State court interference with the federal judiciary has occurred for the most part in conflicts of jurisdiction which affect only the lower federal courts as courts of concurrent jurisdiction and in attempts to release persons in federal custody. To the extent that this phase of federal-state relations is not governed by statute or the supremacy clause of article VI, it is governed by comity, a self-imposed rule of judicial morality whereby independent tribunals of concurrent or coordinate jurisdiction exercise a mutual restraint in order to prevent interference with each other and to avoid collisions of authority. Although the Court on one occasion has stated that the principle of comity is not a rule of law but "one of practice, convenience, and expediency"[653] which persuades, but does not command, it has also declared that in the American Federal System it has come to have "a higher sanction than the utility which comes from concord" and has been converted into a principle "of right and of law, and therefore of necessity."[654] As developed and applied by the Supreme Court the rule of comity is exemplified in three classes of cases: First, those in which a court has acquired jurisdiction of the _res_ or the possession of property and another court interferes with that jurisdiction or possession; second, those in which a court has acquired jurisdiction or custody of the person and another interferes with such jurisdiction or custody, most frequently by discharges from custody in _habeas corpus_ proceedings; and, third, those in which injunctions are used to stay proceedings in another court or to enjoin official action before the courts of proper jurisdiction have had an opportunity to adjudicate the issue. JURISDICTION OF THE _RES_ As applied by the Supreme Court in cases involving concurrent jurisdiction the principle of comity means that when the jurisdiction of a court and the right of a plaintiff to prosecute a suit therein have attached and when a court has acquired constructive possession of property, such jurisdiction cannot be taken away or obstructed by proceedings in another court, nor can the possession of the property be disturbed by proceedings in another court; and the court which has first acquired jurisdiction of the cause or the possession of the _res_ has exclusive jurisdiction to hear and determine the case and all controversies relating thereto, provided that the subject matter of the suit, the remedies sought, and the parties to it are the same, and provided further that it is not necessary for the federal courts to exercise jurisdiction in order to enforce the supremacy of the Constitution and laws of the United States.[655] STATE INTERFERENCE BY INJUNCTION WITH FEDERAL JURISDICTION It has long been settled as a general rule that State courts have no power to enjoin proceedings or judgments of the federal courts.[656] In United States ex rel. Riggs _v._ Johnson County[657] this rule was attributed to no paramount jurisdiction of the federal courts, but rather to the complete independence of the State and federal courts in their spheres of action. Like many of the rules governing federal-state court relations, this rule is not absolute, as shown by a case arising in Pennsylvania. Two surviving trustees had filed an account for themselves and a deceased trustee in a court of common pleas. Thereafter, two of the five beneficiaries sued the two trustees and the deceased trustee in a federal district court, charging mismanagement and praying for an accounting and restitution and removal of the trustees. The Supreme Court held that the State court upon the filing of the account acquired jurisdiction over the trust _quasi in rem_ exclusively and therefore sustained the State court's injunction restraining the parties from further proceeding in the federal court while simultaneously holding that the district court could not enjoin the parties from proceeding in the State court.[658] The power of a State court to enjoin parties from proceeding in a federal court obviously does not include that of enjoining a federal court. FEDERAL INTERFERENCE BY INJUNCTION WITH STATE JURISDICTION The discretion of the federal courts to enjoin proceedings in State courts has not been left exclusively to doctrines of comity, for since 1793 the federal courts have been prohibited by statute from restraining proceedings in State courts.[659] Initially this statute was applied with strict literalness in condemning attempts by the lower federal courts to enter exceptions to it,[660] but gradually the Supreme Court began to interpret the provision as not prohibitive of all injunctions. First, it has been held that an injunction will lie against proceedings in a State court to protect the lawfully acquired jurisdiction of a federal court against impairment or defeat.[661] This exception is notably applicable to cases where the federal court has taken possession of property which it may protect by injunction from interference by State courts.[662] Second, in order to prevent irreparable damages to persons and property the federal courts may restrain the legal officers of a State from taking proceedings in State courts to enforce State legislation alleged to be unconstitutional.[663] Nor does the prohibition of § 265 of the Judicial Code [28 U.S.C.A. § 2283] prevent injunctions restraining the execution of judgments in State courts obtained by fraud,[664] the restraint of proceedings in State courts in cases which have been removed to the federal courts,[665] nor, until lately, to proceedings in State courts to relitigate issues previously adjudicated and finally settled by decrees of a federal court.[666] In Toucey _v._ New York Life Insurance Co.,[667] Justice Frankfurter, as spokesman for the Court, reviewed earlier cases and in effect overruled the exception of suits designed to relitigate issues previously adjudicated by a federal court, and held that a suit for injunction would not lie to restrain a proceeding in a State court on the ground that the claim had been previously adjudicated. In so doing he placed this issue in its proper context of _res judicata_. In addition he went beyond the requirements of the case at bar to cast doubts upon the exception of suits brought to enjoin the execution of judgments of State courts obtained by fraud. Furthermore, by regarding the exception of suits restraining proceedings in State courts in cases which had been removed to the federal courts as emanating from the removal acts, Justice Frankfurter concluded that only one exception had been made by judicial construction to § 265, [28 U.S.C.A. § 2283] namely, that permitting injunction of proceedings in State courts to protect the possession of property previously acquired.[668] The rule of this case was extended on the same day to forbid an injunction to restrain proceedings in a State court in support of jurisdiction previously begun earlier and still pending in the federal court.[669] Federal Injunctions of State Official Action Injunctions by federal courts restraining State officials from enforcing unconstitutional State statutes constitute an indirect interference with State courts and a serious obstruction to the administration of public policy. From Osborn _v._ Bank of the United States,[670] which was the first case in which an injunction was used to restrain State action under an unconstitutional statute, to Ex parte Young[671] the Supreme Court established firmly the rule that jurisdiction exists in the federal courts to restrain the enforcement of unconstitutional State statutes and to enjoin State officials charged with the duty of enforcing State laws from bringing criminal or civil proceedings to enforce an invalid statute. Until Ex parte Young, the Court had been careful to sustain the jurisdiction of the lower federal courts to enjoin the enforcement of unconstitutional State legislation only after a finding of unconstitutionality,[672] but Ex parte Young abandoned this rule by holding that the enforcement of a State statute by the attorney general of the State through proceedings in State courts could be enjoined pending the determination of its constitutionality. Ex Parte Young Although a suit to restrain the attorney general of a State from proceeding in the courts of the State to enforce a State law not declared unconstitutional would seem effectively to stay proceedings in a State court, Justice Peckham drew a distinction between the power to enjoin the attorney general and other law officers as individuals and a suit against a State court on the ground that the former does not include the "power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a State court would be a violation of the whole scheme of our Government."[673] Justice Harlan, not convinced by this distinction, characterized the suit as an attempt "_to tie the hands_ of the _State_ so that it could not in any manner or by any mode of proceeding _in its own courts_, test the validity of the statutes and orders in question."[674] Although the rigor of the rule of Ex parte Young has been mitigated by subsequent decisions[675] and the mode of its exercise somewhat narrowed by statute, it has not been overruled and remains a source of friction in federal-state relations. Simultaneously, however, § 266 (_see_ note 2 above[Transcriber's Note: Reference is to footnote 674 of Article III.]) has been construed strictly as designed "to secure the public interest in 'a limited class of cases of special importance,'"[676] and not "a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such."[677] STATE INTERFERENCE BY _HABEAS CORPUS_ PROCEEDINGS WITH FEDERAL JURISDICTION The most spectacular type of State court interference with federal courts has been their use of the writ of _habeas corpus_ to release persons in federal custody. Between 1815 and 1861, judges in nine State courts asserted the right to release persons in federal custody,[678] and the issue was not finally settled until 1859, when Ableman _v._ Booth[679] was decided. Here a Justice of the Wisconsin Supreme Court first released a prisoner held by a United States commissioner on charges of violating the fugitive slave law. After the trial, conviction, and sentence of the defendant, the State supreme court issued a second writ of _habeas corpus_ and after hearing ordered the release of the prisoner. The national Supreme Court then issued a writ of error to the State court which refused to make a return. In an opinion based in part on national supremacy and in part on dual sovereignty, Chief Justice Taney, speaking for the Court, laid down the absolute rule that no State court has the power to release prisoners held in custody under the authority of the United States.[680] Notwithstanding the strong language of the Court in Ableman _v._ Booth, the Wisconsin courts thirteen years later again asserted the power to release persons in federal custody by directing the release of an enlisted soldier in the custody of a recruiting officer of the United States Army. Once again the Court held that a State court has no authority to issue a writ of _habeas corpus_ for the release of persons held under the authority or claim and color of authority of the United States. Justice Field for the Court went on to lay down the generalization that neither government "can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National Government to preserve its rightful supremacy in cases of conflict of authority."[681] FEDERAL INTERFERENCE BY REMOVAL AND _HABEAS CORPUS_ Another potential source of friction between State and federal courts is the use of the writ of _habeas corpus_ or of removal proceedings in the federal courts to release persons from State custody. As has already been indicated the rule of national supremacy deprives the courts of the States of any power to release persons held in federal custody. Recourse to _habeas corpus_ or removal proceedings in the federal courts to release persons in the custody of State courts is governed by statute and comity. The Judiciary Act of 1789[682] conferred jurisdiction upon the federal courts to issue writs of _habeas corpus_ to release persons in State custody only for the purpose of having them appear as witnesses in federal proceedings. The same act also provided for the removal before trial into a federal court of civil cases arising under the laws of the United States. Both branches of this jurisdiction were broadened as a result of the nullification movement in South Carolina so as to make either removal or _habeas corpus_ available to persons held in State custody for any act done or omitted in pursuance of the laws of the United States.[683] These recourses were in 1842 made available to aliens restrained by State authority in violation of their international rights,[684] and in 1867 to all persons restrained in violation of the Constitution, laws, or treaties of the United States.[685] In substance all these acts still remain on the statute book.[686] Of these provisions the most important are those governing the release of persons held under State authority for an act done or omitted under federal authority and persons held in violation of the Constitution, laws, or treaties of the United States. In the leading case of Tennessee _v._ Davis,[687] decided in 1880, the question was faced of their constitutionality. Davis was a federal revenue officer who, in the discharge of his duties, killed a man, and was arraigned by Tennessee for murder. He thereupon applied for removal of his case to a federal court under the act of 1867. To Tennessee's evocation of the doctrine of State sovereignty, the Court rejoined with a ringing assertion of the principle of National Supremacy. Subsequently, the same provisions have been construed to procure the release of a deputy United States marshal from State custody for killing a man while protecting a Justice of the Supreme Court under a Presidential order which was regarded as a "law" of the United States;[688] the release of an election official held under State authority for perjury on the ground that jurisdiction to punish a false witness belonged to the federal courts in this instance;[689] and the release of a collector of internal revenue held in Kentucky for his refusal to file copies of his official papers with a State court.[690] Similarly, the governor of a national home for disabled soldiers was released from Ohio custody for serving oleomargarine in the home in violation of an Ohio statute.[691] A more extreme exercise of _habeas corpus_ jurisdiction is illustrated by Hunter _v._ Wood[692] where a ticket agent of a railroad held in State custody for an overcharge on a ticket was released because prior to his trial in the State court, a United States circuit court had enjoined the enforcement of the statute. The element common to all of these cases is the supremacy of the National Government and the inability of the States through judicial proceedings or otherwise to obstruct the enforcement of federal authority. The doctrine of comity is inapplicable in this category of cases. COMITY AS A PRINCIPLE OF STATUTORY CONSTRUCTION On the other hand, in Ex parte Royall,[693] decided in 1886, the Court held that the jurisdiction of the lower federal courts in the above category of cases involved no duty to release persons from State custody but only a discretion to do so. Such discretion, the Court declared, "should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between the courts equally bound to guard and protect rights secured by the Constitution."[694] In pursuance of these principles the Court has subsequently formulated rules to the effect that mere error in the prosecution and trial of a suit cannot confer jurisdiction upon a federal court to review the proceedings upon a writ of _habeas corpus_;[695] that the writ of _habeas corpus_ cannot be substituted for the writ of error, however serious the errors committed by the State court;[696] that except in extreme and urgent cases the federal courts will not discharge a prisoner in State custody prior to final disposition of the case in the State courts, where the prisoner must first exhaust all State remedies; and even after the State courts have acted, the federal courts will usually leave the prisoner to the usual and orderly procedure of appeal to the Supreme Court. Furthermore, the Supreme Court will, in the exercise of a sound discretion, issue a writ of mandamus to compel a federal court to remand to a State court a prosecution of a federal officer removed to it, when it appears that the officer in question, in seeking removal, failed to make a candid, specific, and positive explanation of his relation to the transaction giving rise to the crime for which he was indicted.[697] Because of the care with which the discretion to issue writs of _habeas corpus_ and to grant removals has been exercised by the federal courts to release persons from State custody there has been a minimum of friction in this area of federal-state relations, in contrast to that produced by their extensive use of injunctions to restrain the enforcement of State statutes. In Wade _v._ Mayo,[698] Justice Murphy cited the statistics of the Administrative Office of the United States Courts which revealed that during the fiscal years of 1943, 1944, and 1945, there was an average of 451 _habeas corpus_ petitions filed each year in federal district courts by persons in State custody, and that of these petitions, an average of only six per year resulted in a reversal of the conviction and the release of the prisoner. COMITY AS COOPERATION Moreover, cold comity may become on occasion warm cooperation between the two systems of courts. In Ponzi _v._ Fessenden,[699] the matter at issue was the authority of the Attorney General of the United States to consent to the transfer on a writ of _habeas corpus_ of a federal prisoner to a State court to be there put on trial upon indictments there pending against him. The Court, speaking by Chief Justice Taft, while conceding that there was no express statutory authority for such action, sustained it. Said the Chief Justice: "We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure."[700] EARLY USE OF STATE COURTS IN ENFORCEMENT OF FEDERAL LAW The final phase of the relation of State courts has to do with their administration of federal law. Although it is the general rule that Congress cannot vest the judicial power of the United States in courts other than those created in pursuance of article III,[701] it has from the beginning of the National Government left to the State courts wide areas of jurisdiction which it might have vested exclusively in the federal courts, section 25 of the Judiciary Act of 1789 offering the supreme illustration. But going far beyond that, in the latter years of the eighteenth century and the early part of the nineteenth, Congress provided that suits by the National Government itself for fines, forfeitures, and penalties imposed by the revenue laws might be brought in State courts of competent jurisdiction as well as in the federal courts.[702] The Fugitive Slave Act of 1793,[703] the Naturalization Act of 1795,[704] and the Alien Enemies Act of 1798,[705] all imposed positive duties on State courts to enforce federal law. In 1799 the State courts were vested with jurisdiction to try criminal offenses against federal laws.[706] Extensive reliance was placed on State courts for the enforcement of the Embargo Acts;[707] and the act of March 3, 1815,[708] vested in State or county courts within or directly adjoining a federal tax-collection district cognizant "of all complaints, suits and prosecutions for taxes, duties, fines, penalties, and forfeitures." Retreat From This Practice The indifference, however, of the State courts in New England to the Embargo Acts, the later hostility of courts in the northern States to the Fugitive Slave Act, and the refusal of courts in other States to administer federal law on the general principle that the courts of no nation are bound to enforce the penal laws of another,[709] all combined to produce strong sentiments against the use of State courts to administer federal law. These sentiments came in time to be incorporated in dissenting opinions,[710] and in 1842 in Prigg _v._ Pennsylvania[711] the Court definitely ruled that the States could not be compelled to enforce federal law. However, it was later held that this ruling did not prevent Congress from authorizing State courts to administer federal law or the action taken by them, if they choose to do so, from being valid.[712] Resumption of the Practice Near the end of the nineteenth century and afterwards Congress resumed its earlier practice of vesting concurrently the enforcement of federally created rights in the State and federal courts. The administration of Indian lands and the determination of rights to inherit allotted lands[713] marked the beginning of the restoration of the use of State courts to apply federal law, and the Federal Employers' Liability Act of 1908[714] carried the practice further, not only by vesting concurrent jurisdiction in suits arising under the act, in State courts but also in prohibiting the removal of cases begun in State courts to the federal courts. Soon afterwards the Connecticut courts in a compensation case applied the State's common law rules of liability contrary to the federal act and held that Congress could not require a State court to grant a remedy which local law did not permit. The Connecticut courts further held that enforcement of the federal act was contrary to the public policy of the State.[715] This decision was overruled in the Second Employers' Liability Cases,[716] where it was held on the basis of national supremacy that rights arising under the act can be enforced "as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion." Subsequently, the Supreme Court has held that the rights created under this statute cannot be defeated by forms of local practice and that it is the duty of the Supreme Court to construe allegations in a complaint asserting a right under the liability act in order to determine whether a State court has denied a right of trial guaranteed by Congress.[717] STATE OBLIGATION TO ENFORCE FEDERAL LAW The issue of State obligation to administer federal law was presented most recently by Testa _v._ Katt.[718] This case arose out of the Emergency Price Control Act of 1942,[719] which provided that persons who had been overcharged in violation of the act or, in the alternative, the Price Administrator, could sue for treble damages in any court of competent jurisdiction. On the ground that one sovereign cannot enforce the penal laws of another, the Rhode Island Supreme Court ruled that the State courts had no jurisdiction of such suits. Assuming for the purposes of the case that the treble damage provision, was "penal" in nature, Justice Black for a unanimous Court proceeded to lay to rest the principle that a State court is not bound to enforce federal criminal law as an assumption flying "in the face of the fact that the States of the Union constitute a nation" and one which disregarded the supremacy clause. Justice Black also pointed to early acts of Congress and early decisions of the Supreme Court as establishing the rule that "State courts do not bear the same relation to the United States as they do to foreign countries."[720] The Prigg case, though not overruled expressly, was ignored save for its citation in a footnote.[721] RIGHT OF FOREIGN CORPORATIONS TO RESORT TO FEDERAL COURTS In a series of cases the Court has been called upon to adjudicate between the power of a State to exclude foreign corporations from doing a purely domestic business within its borders and the right of such foreign corporations to resort to the federal courts. After deciding first one way and then the other, on the basis of some highly refined distinctions,[722] it finally, in 1922, came out unqualifiedly for the latter right. This was in Terral _v._ Burke Construction Co.,[723] in which an Arkansas statute requiring the cancellation of the license of a foreign corporation to do business in the State, upon notice that such corporation had removed a case to a federal court, was pronounced void. At the same time all contrary decisions were explicitly overruled. Clause 3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. _See_ Amendment VI, pp. 878-881. Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court. Treason The provisions and phraseology of this section are derived from the English Statute of Treasons enacted in 1351, in the reign of Edward III,[724] as an expression of grievance against the application of the doctrine of constructive treasons by the common law courts. The constitutional definition is, of course, much more restrictive than the enumeration of treasons in the English statute, but like that statute, it is emphatically a limitation on the power of government to define treason and to prove its existence. The rigid and exclusive definition of treason takes from Congress all power to define treason and prescribes limitations on the power to prescribe punishment thereupon. LEVYING WAR Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of Aaron Burr and his associates. In Ex parte Bollman,[725] which involved two of Burr's confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying of war to the actual waging of war. "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war, are distinct offences. The first must be brought into open action, by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that * * * it has been determined that the actual enlistment of men, to serve against the government, does not amount to the levying of war."[726] Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. "On the contrary, if it be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."[727] On the basis of these considerations and due to the fact that no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. He continued by saying that "the crime of treason should not be extended by construction to doubtful cases" and concluded that no conspiracy for overturning the Government and "no enlisting of men to effect it, would be an actual levying of war."[728] The Burr Trial Not long afterward the Chief Justice went to Richmond to preside over the trial of Burr himself. His ruling[729] denying a motion to introduce certain collateral evidence bearing on Burr's activities is significant both for rendering the latter's acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief this ruling held that Burr, who had not been present at the assemblage on Blennerhassett's Island, could be convicted of advising or procuring a levying of war, only upon the testimony of two witnesses to his having procured the assemblage. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall's pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities.[730] AID AND COMFORT TO THE ENEMY; THE CRAMER CASE Since the Bollman case only three treason cases have ever reached the Supreme Court, all of them outgrowths of World War II and all charging adherence to enemies of the United States and giving them aid and comfort. In the first of these, Cramer _v._ United States,[731] the issue was whether the "overt act" had to be "openly manifest treason" or if it was enough if, when supported by other proper evidence, it showed the required treasonable intention.[732] The Court in a five-to-four opinion by Justice Jackson in effect took the former view holding that "the two-witness principle" interdicted "imputation of _incriminating acts_ to the accused by circumstantial evidence or by the testimony of a single witness,"[733] even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,"[734] Justice Jackson asserted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer's treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand. THE HAUPT CASE The Supreme Court sustained a conviction of treason, for the first time in its history in 1947 in Haupt _v._ United States.[735] Here it was held that although the overt acts relied upon to support the charge of treason--defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant--were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. If proof be added that the defendant knew of his son's instructions, preparation and plans, the purpose to aid and comfort the enemy becomes clear."[736] The Court held that conversations and occurrences long prior to the indictment were admissible evidence on the question of defendant's intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length; "As the _Cramer_ case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character. "The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of _Cramer_. "The _Cramer_ case departed from those rules when it held that 'The two-witness principle is to interdict imputation of _incriminating acts_ to the accused by circumstantial evidence or by the testimony of a single witness.' 325 U.S. p. 35. The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into an incriminating one."[737] THE KAWAKITA CASE The third case referred to above is Kawakita _v._ United States,[738] which was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: "At petitioner's trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese; showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport." The question whether, on this record Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.[739] DOUBTFUL STATE OF THE LAW OF TREASON TODAY The vacillation of Chief Justice Marshall between the Bollman[740] and Burr[741] cases and the vacillation of the Court in the Cramer[742] and Haupt[743] cases leaves the law of treason in a somewhat doubtful condition. The difficulties created by the Burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label within a formula provided by Chief Justice Marshall himself in the Bollman case. The passage reads: "Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution * * * must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation."[744] Clause 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. CORRUPTION OF BLOOD AND FORFEITURE The Confiscation Act of 1862[745] "to Suppress Insurrection; to Punish Treason and Rebellion; to Seize and Confiscate the Property of Rebels raised issues under article III, section 3, clause 2." Because of the constitutional doubts of the President the act was accompanied by an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and that at his death his children could take the fee simple by descent as his heirs without deriving any title from the United States. In applying this act, passed in pursuance of the war power and not the power to punish treason,[746] the Court in one case[747] quoted with approval the English distinction between a disability absolute and perpetual and one personal or temporary. Corruption of blood as a result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the attainted person "to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him."[748] Notes [1] Miller, On the Constitution, 314 (New York, 1891). [2] 219 U.S. 346 (1911) [3] Ibid. 361. [4] United States _v._ Arredondo, 6 Pet. 691 (1832). [5] General Investment Co. _v._ New York Central R. Co., 271 U.S. 228, 230 (1926). [6] For distinctions between judicial power and jurisdiction _see_ Williams _v._ United States, 289 U.S. 553, 566 (1933); and the dissent of Justice Rutledge in Yakus _v._ United States, 321 U.S. 414, 467-468 (1944). [7] Michaelson _v._ United States, 266 U.S. 42 (1924). [8] McIntire _v._ Wood, 7 Cr. 504 (1813); Ex parte Bollman, 4 Cr. 75 (1807). [9] Wayman _v._ Southard, 10 Wheat. 1 (1825) [10] Gumbel _v._ Pitkin, 124 U.S. 131 (1888). [11] Ex parte Peterson, 253 U.S. 300 (1920). [12] Ex parte Garland, 4 Wall. 333, 378 (1867). [13] Chisholm _v._ Georgia, 2 Dall. 419 (1793); Kentucky _v._ Dennison, 24 How. 66, 98 (1861) contains a review of authorities on this point. [14] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Cary _v._ Curtis, 3 How. 236 (1845); Shelden _v._ Sill, 8 How. 441 (1850); Kline _v._ Burke Construction Co., 260 U.S. 226 (1922). _See also_ the cases discussed under the heading of the Power of Congress to regulate the jurisdiction of the lower federal courts, _infra_, p. 616. [15] 2 Dall. 409 (1792). [16] His initial effort was in United States _v._ Ferreira, 13 How. 40 (1852). This case involved the validity of an act of Congress directing the judge of the territorial court of Florida to examine and adjudge claims of Spanish subjects against the United States and to report his decisions with evidence thereon to the Secretary of the Treasury who in turn was to pay the award to the claimant if satisfied that the decisions were just and within the terms of the treaty of cession. After Florida became a State and the territorial court a district court of the United States, the Supreme Court refused to entertain an appeal under the statute for want of jurisdiction to review nonjudicial proceedings. The duties required by the act, it was said "are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws." Ibid. 51. [17] 2 Wall. 561 (1865). [18] 117 U.S. 697 Appx. (1864). _See also_ De Groot _v._ United States, 5 Wall. 419 (1867) and United States _v._ Klein, 13 Wall. 128 (1872), which sustained Supreme Court revision after the jurisdiction of the Court of Claims had been made final. The Gordon decision had indicated that the Supreme Court could not review the decision of any legislative court. [19] 117 U.S. 697, 703. This last doctrine was repeated to the extent that for many years an award of execution as distinguished from finality of judgment came to be regarded as an essential attribute of judicial power. _See_ In re Sanborn, 148 U.S. 222, 226 (1893); Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 457 (1899); Frasch _v._ Moore, 211 U.S. 1 (1908); Muskrat _v._ United States, 219 U.S. 346, 355, 361-362 (1911), and Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927). [20] 273 U.S. 70 (1927). [21] 276 U.S. 71 (1928). [22] 274 U.S. 123 (1927). This case also clarified any doubts concerning a federal declaratory judgment act which was passed in 1934 and sustained in Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937). [23] 288 U.S. 249 (1933). The decision in the Swope and Wallace cases removed all constitutional doubts which had previously shrouded a proposed federal declaratory judgment act which was enacted in 1934 (48 Stat. 955) and sustained in Aetna Life Ins. Co. _v._ Haworth, 300 U.S. 227 (1937). [24] John Charles Fox, The King _v._ Almon, 24 Law Quarterly Review 184, 194-195 (1908). [25] John Charles Fox, The Summary Power to Punish Contempt, 25 Law Quarterly Review, 238, 252 (1909). [26] 1 Stat. 73, 83. [27] Act of March 2, 1831, 4 Stat. 487, now 18 U.S.C.A. 401. For a summary of the Peck Impeachment and the background of the act of 1831, _see_ Felix Frankfurter and James Landis, Power of Congress Over Procedure in Criminal Contempts in Inferior Federal Courts--A Study in Separation of Powers, 37 Harvard Law Review, 1010, 1024-1028 (1924). [28] 19 Wall. 505 (1874). [29] Ibid. 505, 510-511. [30] Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). _See also_ In re Debs, 158 U.S. 504, 595 (1895). [31] U.S. 42 (1924). [32] 38 Stat. 730 (1914). [33] 266 U.S. 42, 65-66. [34] 247 U.S. 402 (1918). [35] Ibid. 418-421. [36] 263 U.S. 255 (1923). In his dissent in this case, Justice Holmes stated that unless a judge has power to "lay hold of anyone who ventures to publish anything that tends to make him unpopular or to belittle him * * *. A man cannot be summarily laid by the heels because his words may make public feeling more unfavorable in case the judge should be asked to act at some later date, any more than he can for exciting feeling against a judge for what he already has done." Ibid. 281-282. [37] 313 U.S. 33, 47-53 (1941). [38] 314 U.S. 252, 260 (1941). _See_ pp. 783-784 (Amendment I). [39] 128 U.S. 289 (1888). [40] 267 U.S. 517 (1925). [41] Ibid. 534, 535. [42] Ibid. 539. [43] Sacher _v._ United States, 343 U.S. 1 (1952). [44] Dennis _v._ United States, 341 U.S. 494 (1951). [45] 343 U.S. 1, 11, 13-14. Justice Clark did not participate. Justices Black, Frankfurter, and Douglas dissented. Justice Frankfurter's opinion is accompanied by an elaborate review of exchanges between the trial judge and defense counsel, excerpted from the record of the case. On the constitutional issue he said: "Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits. In this case the course of events to the very end of the trial shows that summary measures were not necessary to enable the trial to go on. Departure from established judicial practice, which makes it unfitting for a judge who is personally involved to sit in his own case, was therefore unwarranted. Neither self-respect nor the good name of the law required it. Quite otherwise. Despite the many incidents of contempt that were charged, the trial went to completion, nine months after the first incident, without a single occasion making it necessary to lay any one of the lawyers by the heel in order to assure that the trial proceed. The trial judge was able to keep order and to continue the court's business by occasional brief recesses calculated to cool passions and restore decorum, by periodic warnings to defense lawyers, and by shutting off obstructive arguments whenever rulings were concisely stated and firmly held to." Ibid. 36. Justice Douglas summarized the position of all three dissenters, as follows: "I agree with Mr. Justice Frankfurter that one who reads this record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers. I therefore agree with Mr. Justice Black and Mr. Justice Frankfurter that this is the classic case where the trial for contempt should be held before another judge. I also agree with Mr. Justice Black that petitioners were entitled by the Constitution to a trial by jury." Ibid. 80. [46] 330 U.S. 258, 293-307 (1947). [47] 203 U.S. 563 (1906) [48] Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). _See also_ Bessette _v._ W.B. Conkey Co., 194 U.S. 324, 327-328 (1904). [49] 267 U.S. 87, 119-120 (1925). [50] Michaelson _v._ United States, 266 U.S. 42, 65-66 (1924). [51] 154 U.S. 447 (1894). [52] Penfield Co. _v._ Securities and Exchange Commission, 330 U.S. 585 (1947). Note the dissent of Justice Frankfurter. For delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them _see also_ McCrone _v._ United States, 307 U.S. 61 (1939); Endicott Johnson Corp. _v._ Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946). In the last mentioned case Justice Murphy dissented on the ground that delegation of the subpoena power to nonjudicial officers is unconstitutional as "a corrosion of liberty." In the Endicott Johnson Case he expressed dissatisfaction with the exercise of this power by administrative agencies but confined his dissent to emphasizing greater judicial scrutiny in enforcing administrative orders to appear and produce testimony. [53] 1 Stat. 73, 81. [54] Ibid. 81-82. [55] 1 Cr. 137 (1803). _Cf._ Wiscart _v._ Dauchy, 3 Dall. 321 (1796). [56] McIntire _v._ Wood, 7 Cr. 504 (1813); and McClung _v._ Silliman, 6 Wheat. 598 (1821). [57] 12 Pet. 524 (1838). [58] Ex parte Bollman, 4 Cr. 74, 93, 94 (1807). [59] Ex parte Yerger, 8 Wall. 85 (1869). [60] _See also_ Ex parte McCardle, 7 Wall. 506 (1869). [61] In United States _v._ Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), Justice Brewer, speaking for the Court, approached a theory of inherent equity jurisdiction when he declared: "The principles of equity exist independently of and anterior to all Congressional legislation, and the statutes are either annunciations of those principles or limitations upon their application in particular cases." It should be emphasized, however, that the Court made no suggestion that it could apply pre-existing principles of equity without jurisdiction over the subject matter. Indeed, the inference is to the contrary. In a dissenting opinion in which Justices McKenna and Van Devanter joined, in Paine Lumber Co. _v._ Neal, 244 U.S. 459, 475 (1917), Justice Pitney contended that article III, section 2, "had the effect of adopting equitable remedies in all cases arising under the Constitution and laws of the United States where such remedies are appropriate." [62] Boyce's Executors _v._ Grundy, 3 Pet. 210 (1830). [63] 1 Stat. 333; 28 U.S.C.A. 1651. [64] 14 Stat. 475 (1867); 26 U.S.C.A. 3653 (a). [65] 36 Stat. 557 (1910); 28 U.S.C.A. 2281. [66] 50 Stat. 752 (1937); 28 U.S.C.A. 2282. [67] 38 Stat. 220 (1913); 28 U.S.C.A. 2325. [68] 48 Stat. 775 (1934); 28 U.S.C.A. 1342. [69] 38 Stat. 730 (1914) (Clayton Act); 29 U.S.C.A. 52, and 47 Stat. 70 (1932) (Norris-LaGuardia Act); 29 U.S.C.A. 101-115. [70] 56 Stat. 31 (1942), § 204; 50 U.S.C.A. 924 (App.). [71] Freeman _v._ Howe, 24 How. 450 (1861); Gaines _v._ Fuentes, 92 U.S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908). [72] Langnes _v._ Green, 282 U.S. 531 (1931); Riehle _v._ Margolies, 270 U.S. 218 (1929), and Essanay Film Mfg. Co. _v._ Kane, 258 U.S. 358 (1922). _See also_ Hill _v._ Martin, 296 U.S. 393, 403 (1935); Kohn _v._ Central Distributing Co., 306 U.S. 531, 534 (1939); and Oklahoma Packing Co. _v._ Oklahoma Gas and Electric Co., 309 U.S. 4, 9 (1940). [73] 254 U.S. 443 (1921). [74] Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance _v._ Sanitary Grocery Co., 303 U.S. 552 (1938). [75] In addition to the cases cited in note 2, [Transcriber's Note: Reference is to Footnote 74, above.] _see_ Milk Wagon Drivers' Union _v._ Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940). [76] 319 U.S. 182 (1943). [77] Ibid. 187, quoting Cary _v._ Curtis, 3 How. 236, 245 (1845). [78] 321 U.S. 414 (1944). [79] Washington-Southern Navigation Co. _v._ Baltimore Co., 263 U.S. 629 (1924). [80] 10 Wheat. 1 (1825). [81] 106 U.S. 272, 280 (1882). [82] Washington-Southern Navigation Co. _v._ Baltimore Co., 263 U.S. 629, 635, 636 (1924). [83] McDonald _v._ Pless, 238 U.S. 264, 266 (1915); Griffin _v._ Thompson, 2 How. 244, 257 (1844). [84] Gumbel _v._ Pitkin, 124 U.S. 131 (1888); Covell _v._ Heyman, 111 U.S. 176 (1884), and Buck _v._ Colbath, 3 Wall. 334 (1866). [85] Eberly _v._ Moore, 24 How. 147 (1861); Arkadelphia Milling Co. _v._ St. Louis S.W.R. Co., 249 U.S. 134 (1919). [86] Gagnon _v._ United States, 193 U.S. 451, 458 (1904). [87] 2 Wall. 123, 128-129 (1864). [88] 253 U.S. 300 (1920). [89] Ibid. 312. [90] Ex parte Secombe, 19 How. 9, 13 (1857). [91] 4 Wall. 333 (1867). [92] Ibid. 378-380. For an extensive treatment of disbarment and American and English precedents thereon, _see_ Ex parte Wall, 107 U.S. 265 (1883). [93] Reorganization of the Judiciary, Hearings on S. 1392; 75th Cong., 1st sess., 1937, Pt. 3, p. 491. Justices Van Devanter and Brandeis approved the letter. For earlier proposals to have the Court sit in divisions, _see_ Felix Frankfurter and James M. Landis, The Business of the Supreme Court, pp. 81-83, (New York, 1928). [94] 1 Stat. 73-74, § 2-3. [95] Ibid. 73, 74-76; § 4-5. [96] 2 Stat. 89. [97] 2 Stat. 132. For a general account of the events leading to the acts of 1801 and 1802, _see_ Felix Frankfurter and James M. Landis, The Business of the Supreme Court; a study in the federal judicial system (New York, 1928), pp. 25-32. This book also contains an excellent account of the organization and reorganization of the judiciary by statute from time to time. For another account of the acts of 1801 and 1802 _see_ Charles Warren, The Supreme Court in United States History (Boston, Rev. ed., 1932), 189-215. [98] 1 Cr. 299, 309 (1803). [99] 38 Stat. 208, 219-221. [100] Prior to the act of 1913 Congress had voted to abolish the Commerce Court, but President Taft vetoed the bill which converted the Commerce Court judges into ambulatory circuit judges. For a general account of the abolition of the Commerce Court, _see_ Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York, 1928), pp. 166-173. [101] Evans _v._ Gore, 253 U.S. 245 (1920). [102] 268 U.S. 501 (1925). [103] 307 U.S. 277 (1939). [104] Ibid. 278-282. [105] Ibid. 282. [106] 289 U.S. 516, 526 (1933). [107] 289 U.S. 553 (1933). [108] 36 Stat. 539 (1910). For the legislative history of the Commerce Court _see_ Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York, 1928), pp. 155-164. [109] 56 Stat. 23, 31-33. [110] In Lockerty _v._ Phillips, 319 U.S. 182 (1943), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained. [111] 321 U.S. 414 (1944). [112] Ibid. 444. [113] Ibid. 468. [114] Pet. 511 (1928). [115] Ibid. 546. [116] Ibid. 546. Closely analogous to the territorial courts are extraterritorial and consular courts created in the exercise of the foreign relations power. _See_ In re Ross, 140 U.S. 453 (1891). [117] 279 U.S. 438 (1929). [118] Ibid. 451. [119] Gordon _v._ United States, 117 U.S. 697 (1886); McElrath _v._ United States, 102 U.S. 426 (1880); Williams _v._ United States, 289 U.S. 553 (1933). [120] United States _v._ Coe, 155 U.S. 76 (1894). [121] Wallace _v._ Adams, 204 U.S. 415 (1907). [122] Old Colony Trust Co. _v._ Commissioner of Internal Revenue, 279 U.S. 716 (1929); Ex parte Bakelite Corporation, 279 U.S. 438 (1929). [123] The general tendency in the evolution of legislative courts is to provide for tenure during good behavior. This is true of the judges of the Court of Claims, the Customs Court, the Court of Customs and Patent Appeals. The terms of the judges of the Tax Court are limited to twelve years and the judges are subject to removal by the President after notice and hearing. For the provisions of the statutes governing these matters _see_ 28 U.S.C. §§ 241, 296, 301-301a; 26 U.S.C. §§ 1102b, d, f. The territorial judges in Alaska (48 U.S.C. § 112) have four-year terms subject to removal by the President; in Hawaii six years unless removed by the President (48 U.S.C. § 643), eight years in Puerto Rico (28 U.S.C. § 803); eight years in the Canal Zone subject to removal by the President (48 U.S.C. § 1353); and four years in the Virgin Islands unless sooner removed by the President (48 U.S.C. § 1405y). [124] 141 U.S. 174 (1891). [125] Ibid. 188 [126] 289 U.S. 553 (1933). [127] 268 U.S. 501 (1925). [128] 117 U.S. 697 (1886). [129] 13 How. 40, 48 (1852). _See also_ Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923); Federal Radio Commission _v._ General Electric Co., 231 U.S. 464 (1930). [130] 5 Wall. 419 (1867). [131] Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 (1930); Pope _v._ United States, 323 U.S. 1 (1944). [132] 112 U.S. 50 (1884). [133] Keller _v._ Potomac Electric Co., 261 U.S. 428 (1923). [134] Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 (1930). [135] 279 U.S. 438 (1929). All of these rulings with respect to the vesting of revisory powers in the courts of the District carried the qualification that revisory actions and interlocutory opinions, as nonjudicial functions, were not reviewable on appeal to the Supreme Court of the United States. Frasch _v._ Moore, 211 U.S. 1 (1908); E.C. Atkins & Co. _v._ Moore, 212 U.S. 285 (1909); Keller _v._ Potomac Electric Co., 261 U.S. 428 (1923); Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 (1930). [136] O'Donoghue _v._ United States, 289 U.S. 516 (1933). [137] Ibid. 545-546. [138] Ibid. 545. Chief Justice Hughes in a dissent joined by Justice Van Devanter and Cardozo took the position that the plenary power of Congress over the District is complete in itself and its power to create courts in the District is not derived from article III. Consequently, they argued that the limitations of article III do not apply to the organization of such courts. The O'Donoghue Case is discussed in the opinions of Justices Jackson and Rutledge and in the dissent of Chief Justice Vinson in National Mutual Insurance Co. _v._ Tidewater Transfer Co., 337 U.S. 582, 601-602, 608-611, 638-640 (1949). [139] 6 Wheat. 264 (1821). [140] Ibid. 378. [141] Miller, Constitution, 314, quoted in Muskrat _v._ United States, 219 U.S. 346, 356 (1911). [142] 9 Wheat. 738, 819 (1824). [143] 2 Dall. 419, 431, 432 (1793). [144] In re Pacific Railway Commission, 32 F. 241, 255 (1887). Justice Field repeated the substance of this definition in Smith _v._ Adams, 130 U.S. 167, 173-174 (1889). [145] 219 U.S. 346, 357 (1911). [146] Ibid. 361-362. Judicial power is here defined by Justice Day as "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction." Ibid. 361. [147] Muskrat _v._ United States, 219 U.S. 346 (1911); Chicago & Grand Trunk R. Co. _v._ Wellman, 143 U.S. 339 (1892); Lampasas _v._ Bell, 180 U.S. 276 (1901); Braxton County Court _v._ West Virginia, 208 U.S. 192 (1908); Smith _v._ Indiana, 191 U.S. 138 (1903); Tregea _v._ Modesto Irrigation District, 164 U.S. 179 (1896). [148] 143 U.S. 339 (1892). [149] Ibid. 345. [150] Muskrat _v._ United States, 219 U.S. 346 (1911). [151] Lampasas _v._ Bell, 180 U.S. 276, 284 (1901). [152] Braxton County Court _v._ West Virginia, 208 U.S. 192 (1908). [153] Ibid. 198. [154] Smith _v._ Indiana, 191 U.S. 138, 149 (1903). [155] Tregea _v._ Modesto Irrigation District, 164 U.S. 179 (1896). [156] Coffman _v._ Breeze Corporations, Inc., 323 U.S. 316, 324-325 (1945), citing Tyler _v._ The Judges, 179 U.S. 405 (1900); Hendrick _v._ Maryland, 235 U.S. 610 (1915). [157] Fleming _v._ Rhodes, 331 U.S. 100, 104 (1947). _See also_ Blackmer _v._ United States, 284 U.S. 421, 442 (1932); Virginian R. Co. _v._ System Federation, 300 U.S. 515 (1937); Carmichael _v._ Southern Coal & Coke Co., 301 U.S. 495, 513 (1937). [158] 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying the tax appears to be Dodge _v._ Woolsey, 18 How. 331 (1856) which involved the validity of an Ohio tax. The suit was entertained on the basis of English precedents. A case similar to the Pollock Case is Brushaber _v._ Union Pacific R. Co., 240 U.S. 1 (1916). Hawes _v._ Oakland, 104 U.S. 450 (1881) is cited in the Pollock Case, although it in fact threw out a stockholder's suit. [159] _Cf._ Cheatham et al. _v._ United States, 92 U.S. 85 (1875); and Snyder _v._ Marks, 109 U.S. 189 (1883). [160] Smith _v._ Kansas City Title Co., 255 U.S. 180, 201, 202 (1921). [161] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936). Although the holdings of the plaintiffs amounted to only one-three hundred and fortieth of the preferred stock, the Court ruled that the right to maintain the suit was not affected by the smallness of the holdings. [162] 298 U.S. 238 (1936). [163] Robert L. Stern, in The Commerce Clause and the National Economy, 59 Harv. L. Rev. 645, 667-668 (1948), gives the following account of the litigation in the first bituminous coal case: On the same day that the Bituminous Coal Act became law, the directors of the Carter Coal Company met in New York. James Carter presented a letter saying the Coal Act was unconstitutional and that the company should not join the Code. His father agreed that the act was invalid, but thought the company should not take the risk of paying the tax required of nonmembers in the event the act should be sustained. The third director agreed with the elder Carter, and the board passed a resolution rejecting James Carter's proposals. This action was subsequently approved by a majority of the voting stock held by James Carter's father and mother who outvoted him and his wife. [164] Massachusetts _v._ Mellon, 262 U.S. 447, 487 (1923). _See also_ Williams _v._ Riley, 280 U.S. 78 (1929). [165] Fairchild _v._ Hughes, 258 U.S. 126 (1922). [166] Ex parte Levitt, 302 U.S. 633 (1937). _See_, however, Massachusetts State Grange _v._ Benton, 272 U.S. 525 (1926), where the Supreme Court, though affirming the dismissal of a suit to enjoin a day-light-saving statute, nonetheless, sustained the jurisdiction of the district court to entertain the suit. [167] Alabama Power Co. _v._ Ickes, 302 U.S. 464, 480-481 (1938). [168] 333 U.S. 203 (1948). [169] 342 U.S. 429 (1952). _See_ p. 763 (Amendment I). [170] 6 Wall. 50, 64 (1868). _See also_ State of Mississippi _v._ Johnson, 4 Wall. 475 (1867). [171] 6 Wall. at 76. [172] 262 U.S. 447 (1923). [173] 42 Stat. 224 (1921). [174] 262 U.S. 447, 484-485. _See also_ New Jersey _v._ Sargent, 269 U.S. 328, 338-340 (1926), where the Court refused jurisdiction of a suit to enjoin the federal water power act because of its effect on the conservation of potable waters in New Jersey. A similar situation arose in Arizona _v._ California, 283 U.S. 423, 450 (1931), where the Court declined to take jurisdiction of an injunction suit to restrain the Secretary of the Interior and the five States of the Colorado River Compact from constructing Boulder Dam. [175] Georgia _v._ Pennsylvania R. Co., 324 U.S. 439 (1945). [176] Missouri _v._ Holland, 252 U.S. 416 (1920). [177] Georgia _v._ Tennessee Copper Co., 206 U.S. 230 (1907). [178] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 (1945). [179] Giles _v._ Harris, 189 U.S. 475, 486 (1903). [180] 258 U.S. 158 (1922). [181] Ibid. 162. [182] 297 U.S. 288, 324 (1936). [183] 274 U.S. 488 (1927). [184] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324 (1936). [185] 283 U.S. 423 (1931). [186] 330 U.S. 75 (1947). [187] Ibid. 89-91. Justices Black and Douglas wrote separate dissents, but each contended that the controversy was justiciable. Justice Douglas could not agree that the men should violate the act and lose their jobs in order to test their rights. [188] Ex parte Steele, 162 F. 694, 701 (1908). [189] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518 (1852); United States _v._ Chambers, 291 U.S. 217 (1934); Mills _v._ Green, 159 U.S. 651 (1895); United States _v._ Evans, 213 U.S. 297 (1909). [190] Mills _v._ Green, 159 U.S. 651 (1895). This case came to the Supreme Court on appeal from a decree of the circuit court of appeals dissolving an injunction restraining certain registration officials from excluding the appellant from the voting list. However, the election in which appellant desired to vote was held prior to the appeal, and the case thereby became moot. _See also_ St. Pierre _v._ United States, 319 U.S. 41 (1943). [191] Ibid. 653. [192] Keim _v._ United States, 177 U.S. 290, 293 (1900); Georgia _v._ Stanton, 6 Wall. 50, 71 (1868). [193] 14 Pet. 497 (1840). [194] Ibid. 516. [195] Ibid., and Kendall _v._ United States ex rel. Stokes, 12 Pet. 524, 621 (1838); _see also_ Marbury _v._ Madison, 1 Cr. 137 (1803). [196] Mississippi _v._ Johnson, 4 Wall. 475 (1867). [197] Georgia _v._ Stanton, 6 Wall. 50 (1868). [198] Ibid. [199] 4 Wall. 475 (1867). [200] 12 Pet. 524 (1838). [201] 1 Cr. 137, 170 (1803). [202] 7 How. 1 (1849). [203] Ibid. 41. [204] Ibid. 42-45. [205] This classification follows in the main that of Melville Fuller Weston, Political Questions, 38 Harv. L. Rev. 296 (1925). [206] Field _v._ Clark, 143 U.S. 649 (1892). [207] Coleman _v._ Miller, 307 U.S. 433 (1939). [208] Foster _v._ Neilson, 2 Pet. 253 (1829). _See_ p. 472, supra. [209] Commercial Trust Co. of New Jersey _v._ Miller, 262 U.S. 51 (1923). [210] United States _v._ Anderson, 9 Wall. 56 (1870). [211] Luther _v._ Borden, 7 How. 1 (1849); Pacific States Telephone & Telegraph Co. _v._ Oregon, 223 U.S. 118 (1912). [212] Luther _v._ Borden, 7 How. 1 (1849). [213] McPherson _v._ Blacker, 146 U.S. 1 (1892), where the Court refused to pass upon the act of the Michigan legislature in 1892 providing for the election of presidential electors by Congressional districts. [214] South _v._ Peters, 339 U.S. 276 (1950). [215] Colegrove _v._ Green, 328 U.S. 549 (1946). [216] Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Georgia _v._ Stanton, 6 Wall. U.S. 50 (1868); Cherokee Nation _v._ Georgia, 5 Pet. 1 (1831). [217] 143 U.S. 649, 670-672 (1892). [218] Coleman _v._ Miller, 307 U.S. 433, 450 (1939). [219] Ibid. 452-453. [220] 328 U.S. 549 (1946). [221] 287 U.S. 1 (1932). This case involved an unsuccessful attempt to enjoin an election of representatives in Congress in Mississippi because the districts formed by the legislature for that purpose were not a contiguous and compact territory and of equal population and that the redistricting violated article I, § 4 and the Fourteenth Amendment. The Court held that the provisions of the Reapportionment Act of 1929 did not reenact the requirements of the act of 1911 and that it was therefore unnecessary to determine whether the questions raised were justiciable. [222] 285 U.S. 355 (1932). Here the Court held that the act of the Minnesota legislature redistricting the State required the governor's signature, and that representatives should be chosen at large until a redistricting was passed. [223] 328 U.S. 549, 565-566. [224] Ibid. 566 ff. [225] 335 U.S. 281 (1948). [226] 335 U.S. 160 (1948). [227] 339 U.S. 276 (1950). [228] Charles Warren, The Supreme Court in United States History, I, (Boston, 1922), 110-111. For the full correspondence _see_ 3 Correspondence and Public Papers of John Jay (1890-1893), (edited by Henry Phelps Johnston), 486. According to E.F. Albertsworth, Advisory Functions in Federal Supreme Court, 23 Georgetown L.J., 643, 644-647 (May 1935), the Court rendered an advisory opinion to President Monroe in response to a request for legal advice on the power of the Government to appropriate federal funds for public improvements by responding that Congress might do so under the war and postal powers. The inhibitions of the Court against advisory opinions do not prevent the individual Justices from giving advice or aiding the political departments in their private capacities. Ever since Chief Justice Jay went on a mission to England to negotiate a treaty the members of the Court have performed various nonjudicial functions. John Marshall served simultaneously as Secretary of State and Chief Justice, and later Justice Robert Jackson served as war crimes prosecutor. [229] For example, Muskrat _v._ United States, 219 U.S. 346, 354 (1911); Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 U.S. 103, 113 (1948); United Public Workers of America _v._ Mitchell, 330 U.S. 75, 89 (1947). [230] Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 U.S. 103, 113-114 (1948), citing Hayburn's Case, 2 Dall. 409 (1792); United States _v._ Ferreira, 13 How. 40 (1852); Gordon _v._ United States, 117 U.S. 697 (1864); In re Sanborn, 148 U.S. 222 (1893); Interstate Commerce Commission _v._ Brimson, 154 U.S. 447 (1894); La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899); Muskrat _v._ United States, 219 U.S. 346 (1911); United States _v._ Jefferson Electric Co., 291 U.S. 386 (1934). [231] Muskrat _v._ United States, 219 U.S. 346 (1911). [232] United States _v._ Ferreira, 13 How. 40 (1852). [233] United Public Workers of America _v._ Mitchell, 330 U.S. 75, 89 (1947). Here, Justice Reed, for the Court, after asserting that constitutional courts do not render advisory opinions, declared that "'concrete legal issues, presented in actual cases, not abstractions,' are requisite" for the adjudication of constitutional issues, citing Electric Bond and Share Co. _v._ Securities & Exchange Commission, 303 U.S. 419, 443 (1938); United States _v._ Appalachian Electric Power Co., 311 U.S. 377, 423 (1940); Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 (1945); and Coffman _v._ Breeze Corporations, 323 U.S. 316, 324 (1945). [234] 13 How. 40 (1852). [235] 117 U.S. 697 (1864). [236] 273 U.S. 70 (1927). In Willing _v._ Chicago Auditorium Association, 277 U.S. 274 (1928) certain lessees desired to ascertain their rights under a lease to demolish a building after the lessors had failed to admit such rights on the allegation that claims, fears, and uncertainties respecting the rights of the parties greatly impaired the value of the leasehold. Because there was no showing that the lessors had hampered the full use of the premises or had committed or threatened a hostile act, the Supreme Court sustained the decree of the lower Court dismissing the bill on the ground that the plaintiff was seeking a mere declaratory judgment. The Court admitted that the proceeding was not moot, that there were adverse parties with substantial interests, and that a final judgment could have been rendered, but held, nonetheless, that the proceeding was not a case or controversy merely because plaintiffs were thwarted by its own doubts, or by the fears of others. Ibid. 289-290. [237] 219 U.S. 346 (1911). [238] 274 U.S. 123 (1927). [239] 288 U.S. 249, 264 (1933). [240] 300 U.S. 227, 240 (1937). [241] 28 U.S.C.A. §§ 2201, 2202; 48 Stat. 955. [242] 300 U.S. 227, 240-241 (1937). The Court distinguished between a justiciable controversy and a dispute of an abstract character, emphasized that the controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests, and reiterated the necessity of "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." [243] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324-325 (1936). [244] 303 U.S. 419, 443 (1938). [245] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 (1945), citing Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933); Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937); Maryland Casualty Co. _v._ Pacific Co., 312 U.S. 270, 273 (1941); Great Lakes Co. _v._ Huffman, 319 U.S. 293, 299, 300 (1943); and Coffman _v._ Breeze Corporation, 323 U.S. 316 (1945). Here, as in other cases, the Court refused to entertain hypothetical, or contingent questions, and the decision of constitutional issues prematurely. For this same rule _see also_, Altvater _v._ Freeman, 319 U.S. 359, 363 (1943). [246] 306 U.S. 1 (1939). [247] 307 U.S. 325 (1939). [248] 312 U.S. 270 (1941). [249] 300 U.S. 227 (1937). [250] Maryland Casualty Co. _v._ Pacific Coal & Oil Co., 312 U.S. 270, 273, (1941). [251] Brillhart _v._ Excess Insurance Co., 316 U.S. 491 (1942). This was a diversity of citizenship case which presented only local questions. [252] Cohens _v._ Virginia, 6 Wheat. 264, 378 (1821). [253] Stat. 73, 85-86. [254] 1 Wheat. 304 (1816). [255] 6 Wheat. 264 (1821). [256] Ibid. 379. [257] Ibid. 422-423. In Martin _v._ Hunter's Lessee, 1 Wheat. 304 (1816), Justice Story had traversed some of these same grounds. He, too, began with the general assumptions that the Constitution was established by the people of the United States and not by the States in their sovereign capacities, that the Constitution is to be construed liberally, and that the National Government is supreme in relation to its objects; and had concluded that the Supreme Court had authority to review State court decisions under the express provisions of articles III and VI, and also from the necessity that final decision must rest somewhere and from the importance and necessity of uniformity of decisions interpreting the Constitution. Many years later in Ableman _v._ Booth, 21 How. 506, 514-523 (1859), where the Wisconsin Supreme Court, like the Virginia Courts earlier, had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, Chief Justice Taney on grounds both of dual sovereignty and national supremacy was even more emphatic in his rebuke of State pretensions. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree beyond that envisaged even by Marshall and Story. As late as 1880 the questions presented in the foregoing cases were before the Court in Williams _v._ Bruffy, 102 U.S. 248 (1880), which again involved the refusal of a Virginia court to enforce a mandate of the Supreme Court. By the act of December 23, 1914, 38 Stat. 790, the 25th section of the Judiciary Act of 1789 which was carried over with modifications into the Revised Statutes, § 690; 28 U.S.C. § 344 was amended so as to provide for review of State court decisions on certiorari whether the federal claim is sustained or denied. These provisions are now contained in 28 U.S.C.A. 1257 (1948). The first case involving invalid State legislation arose under a treaty of the United States. Ware _v._ Hylton, 3 Dall. 199 (1797). In Calder _v._ Bull, 3 Dall. 386 (1798), the Court sustained a State statute as not being an _ex post facto_ law. The first case in which a State statute was held invalid as a violation of the Constitution was Fletcher _v._ Peck, 6 Cr. 87 (1810), which came to the Supreme Court by appeal from a United States circuit court and not by a writ of error under section 25. Famous cases coming to the Court under section 25 were Sturges _v._ Crowninshield, 4 Wheat. 122, McCulloch _v._ Maryland, 4 Wheat. 316, and Dartmouth College _v._ Woodward, 4 Wheat. 518. All three were decided in 1819 and the State legislation involved in each was held void. [258] That the great majority of the most influential members of the Convention of 1787 thought the Constitution secured to courts in the United States the right to pass on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case: Gerry and King of Massachusetts, Wilson and Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph, Madison, and Mason of Virginia, Dickinson of Delaware, Yates and Hamilton of New York, Rutledge and Charles Pinckney of South Carolina, Davie and Williamson of North Carolina, Sherman and Ellsworth of Connecticut. _See_ Max Farrand, Records of the Federal Convention (Yale Univ. Press, 1913); I, 97 (Gerry), 109 (King); II, 73 (Wilson), 76 (Martin), 78 (Mason), 299 (Dickinson and Morris), 428 (Rutledge), 248 (Pinckney), 376 (Williamson), 28 (Sherman), 93 (Madison); III, 220 (Martin, in "Genuine Information"). The Federalist: Nos. 39 and 44 (Madison), Nos. 78 and 81 (Hamilton). Elliot's Debates (ed. of 1836), II, 1898-1899 (Ellsworth), 417 and 454 (Wilson), 336-337 (Hamilton); III, 197, 208, 431 (Randolph), 441 (Mason), 484-485 (Madison); IV, 165 (Davie). P.L. Ford, Pamphlets on the Constitution, 184 (Dickinson, in "Letters of Fabius"). Ford, Essays on the Constitution, 295 (Robert Yates, writing as "Brutus"). True these are only seventeen names out of a possible fifty-five, but they designate fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution (Gorham, Rutledge, Randolph, Ellsworth, and Wilson) and four of the five members of the Committee of Style which gave the Constitution final form (Johnson, Hamilton, Gouverneur Morris, Madison, and King). Against them are to be pitted, in reference to the question under discussion, only Mercer of Maryland, Bedford of Delaware, and Spaight of North Carolina, the record in each of whose cases is of doubtful implication. It should be noted, however, that there was later some backsliding. Madison's record is characteristically erratic. His statement in The Federalist No. 39 written probably early in 1788, is very positive: The tribunal which is to ultimately decide, in controversies relating to the boundary between the two jurisdictions, is to be established under the general government. Yet a few months later (probably October, 1788) he seemed to repudiate judicial review altogether, writing: "In the State Constitutions and indeed in the Federal one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper." 5 Writings (Hunt ed.), 294. Yet in June, 1789, we find him arguing as follows in support of the proposals to amend the Constitution which led to the Bill of Rights: "If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." Ibid. 385. Nine years later as author of the Virginia Resolutions of 1798, he committed himself to the proposition that the final power in construing the Constitution rested with the respective State legislatures, a position from the logical consequences of which he spent no little effort to disengage himself in the years of his retirement. Another recidivist was Charles Pinckney, who in 1799 denounced the idea of judicial review as follows: "On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country." Wharton, State Trials, 412. The great debate in Congress in the first session of the 7th Congress over the repeal of the Judiciary Act of 1801 speedily developed into a debate over whether judicial review of acts of Congress was contemplated by the Constitution. In the Senate Breckenridge of Kentucky, author of the Kentucky Resolutions of 1799, contended for the equal right of the three departments to construe the Constitution for themselves within their respective spheres, and from it deduced the exclusive right of the legislature to interpret the Constitution in what regards the lawmaking power and the obligation of the judges to execute what laws they make. But the feeble disguise which this doctrine affords legislative sovereignty made it little attractive even to Republicans, who for the most part either plainly indicated their adherence to the juristic view of the Constitution, or following a hint by Giles of Virginia, kept silent on the subject. The Federalists on the other hand were unanimous on the main question, though of divergent opinions as to the grounds on which judicial review was to be legally based, some grounding it on the "arising" and "pursuant" clauses, some on the precedents of the Pension and Carriage cases, some on the nature of the Constitution and of the judicial office, some on the contemporary use of terms and the undisputed practice under the Constitution of all constitutional authorities. Moreover, said The Federalist orators, judicial review was expedient, since the judiciary had control of neither the purse nor the sword; it was the substitute offered by political wisdom for the destructive right of revolution; to have established this principle of constitutional security, a novelty in the history of nations, was the peculiar glory of the American people; the contrary doctrine was monstrous and unheard of. The year following Marshall concluded the debate, and rendered decision, in Marbury _v._ Madison. _See_ Edward S. Corwin, The Doctrine of Judicial Review (Princeton University Press. 1914), 49-59; and Court Over Constitution (1938), Chap. 1. "The glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the Constitution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity."--Chief Justice Edward Douglass White when Senator from Louisiana. Cong. Record, 52d Cong., 2d sess., p. 6516 (1894). "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." Oliver Wendell Holmes, Collected Legal Papers (New York, 1920), 295-296. [259] The Federalist No. 78. [260] 3 Dall. 386, 399 (1798). [261] 2 Dall. 409 (1792). [262] 1 Stat. 243 (1792). [263] 3 Dall. 171 (1796). [264] 1 Cr. 137 (1803). [265] 1 Stat. 73, 81. [266] Cr. 137, 175-180. [267] Ibid. 180. The opinion in Marbury _v._ Madison is subject to two valid criticisms. In the first place the construction of the 13th Section of the Judiciary Act, if not erroneous, was unnecessary since the section could have been interpreted, as it afterward was, merely to give the Court the power to issue mandamus and other writs when it had jurisdiction but not for the purpose of acquiring jurisdiction. The exclusive interpretation of the Court's original jurisdiction, sometimes made a subject of criticism, had been adopted by the Court in Wiscart _v._ Dauchy, 3 Dall. 321 (1796), and while couched in terms which had later to be qualified in Cohens _v._ Virginia, 6 Wheat. 264, 398-402 (1821), by Marshall himself, has remained the doctrine of the Court. Secondly, there was good ground for Jefferson's criticism, which did not touch the constitutional features of the decision, but did inveigh against the temerity of the Court in passing on the merits of a case of which, by its own admission, it had no jurisdiction. [268] In this connection Justice Patterson's jury charge in Van Horne's Lessee _v._ Dorrance, 2 Dall. 304, 308 (1795), is of significance for its discussion of the relation of the Constitution, the legislature and the courts. A constitution, he said, "is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it." Legislatures are the creatures of the Constitution to which they owe their existence and powers, and in case of conflict between a legislative act and the Constitution it is the duty of the courts to hold it void. In accordance with these doctrines fortified by natural law concepts, the circuit court invalidated a Pennsylvania statute as being in conflict with the federal and State Constitutions as a violation of the inalienable rights of property. In 1799 the federal circuit court in North Carolina, over which Chief Justice Marshall presided, invalidated an act of North Carolina as a violation of the contract clause and the separation of powers in Ogden _v._ Witherspoon, 18 Fed. Cas. No. 10,461 (1802). The reliance on general principles and natural rights continued in Fletcher _v._ Peck, 6 Cr. 87, 139 (1810) where the Supreme Court invalidated an act of the Georgia legislature revoking an earlier land grant as a violation either of the "general principles which are common to our free institutions," or of the contract clause. [269] This phase of judicial review is described by Justice Sutherland as follows: "From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law." Adkins _v._ Children's Hospital, 261 U.S. 525, 544 (1923). In United States _v._ Butler, 297 U.S. 1, 62 (1936), Justice Roberts for the Court reduced judicial review to very simple terms when he declared that when an act is challenged as being unconstitutional, "the judicial branch of the Government has only one duty,--to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former." [270] Note, for example, the following statement of Chief Justice Marshall: "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." Osborn _v._ Bank of United States, 9 Wheat. 738, 866 (1824). Note also the assertion of Justice Roberts: "All the court does, can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the Constitution; and, having done that, its duty ends." United States _v._ Butler, 297 U.S. 1, 62-63 (1936). [271] Chicago & Grand Trunk R. Co. _v._ Wellman, 143 U.S. 339, 345 (1892). [272] Ibid. _See also_ Muskrat _v._ United States, 219 U.S. 346 (1911); Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450 (1945); United Public Workers of America _v._ Mitchell, 330 U.S. 75 (1947); Fleming _v._ Rhodes, 331 U.S. 100, 104 (1947) [273] Rescue Army _v._ Municipal Court of Los Angeles, 331 U.S. 549, 568-575 (1947). _See also_ Alma Motor Co. _v._ Timken-Detroit Axle Co., 329 U.S. 129 (1946); Spector Motor Service _v._ McLaughlin, 323 U.S. 101, 105 (1944); Coffman _v._ Breeze Corporations, 323 U.S. 316, 324-325 (1945); Carter _v._ Carter Coal Co., 298 U.S. 238, 325 (1936); Siler _v._ L. & N.R. Co., 213 U.S. 175, 191 (1909); Berea College _v._ Kentucky, 211 U.S. 45, 53 (1908); and the cases cited in the notes to the preceding paragraph. [Transcriber's Note: Reference is to Footnote 272, above.] [274] 331 U.S. 549, 571 (1947). [275] _See_ pp. 546-548. For the distinction between inherent and precautionary limitations to the exercise of judicial review and the operation of judicial review within them, _see_ Edward S. Corwin, Judicial Review in Action, 74 Univ. of Pennsylvania L. Rev. 639 (1926). For the limitations generally _see also_ the concurring opinion of Justice Brandeis in Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 346-356 (1936), and the cases cited therein. [276] One of the earliest formulations of this rule is that by Justice Iredell in Calder _v._ Bull, 3 Dall. 386, 399 (1798), and by Justice Chase in the same case, p. 394. On the other hand Justice Chase in this same case asserted that there were certain powers which "it cannot be presumed" have been entrusted to the legislature. _See also_ Sinking-Fund Cases, 99 U.S. 700 (1879). [277] Ogden _v._ Saunders, 12 Wheat. 213 (1827); Providence Bank _v._ Billings, 4 Pet. 514, 549 (1830) (argument of counsel); Legal Tender Cases, 12 Wall. 457 (1871); Madden _v._ Kentucky, 309 U.S. 83 (1940); Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450 (1945). _See also_ Justice Moody's dissenting opinion in Howard _v._ Illinois C.R. Co. (The Employers' Liability Cases), 207 U.S. 463, 509-511 (1908). [278] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). "But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances." Ibid. 546. [279] Kovacs _v._ Cooper, 336 U.S. 77, 88 (1949) opinion of Justice Reed. _See_ Justice Frankfurter's concurring opinion for a criticism of this rule. For other cases imputing to freedom of religion and the press a preferred position so as to reverse the presumption of validity _see_ Herndon _v._ Lowry, 301 U.S. 242, 258 (1937); United States _v._ Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938); Thornhill _v._ Alabama, 310 U.S. 88, 95 (1940); Schneider _v._ State, 308 U.S. 147, 161 (1939); Bridges _v._ California, 314 U.S. 252, 262-263 (1941); Murdock _v._ Pennsylvania, 319 U.S. 105, 115 (1943); Prince _v._ Massachusetts, 321 U.S. 158, 164 (1944); Follett _v._ McCormick, 321 U.S. 573, 575 (1944); Marsh _v._ Alabama, 326 U.S. 501 (1946); Board of Education _v._ Barnette, 319 U.S. 624, 639 (1943); Thomas _v._ Collins, 323 U.S. 516, 530 (1945); Saia _v._ New York, 334 U.S. 558, 562 (1948). Justice Frankfurter has criticized the concept of "the preferred position" of these rights as a phrase that has "uncritically crept into some recent opinions" of the Court, Kovacs _v._ Cooper, 336 U.S. 77, 90 (1949); and Justice Jackson in a dissent has also opposed the idea that some constitutional rights have a preferred position. Brinegar _v._ United States, 338 U.S. 160, 180 (1949). "We cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position; * * *" [280] Watson _v._ Buck, 313 U.S. 387 (1941); Justice Iredell's opinion in Calder _v._ Bull, 3 Dall. 386 (1798); Jacobson _v._ Massachusetts, 197 U.S. 11 (1905). _See also_ Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); Daniel _v._ Family Security Life Ins. Co., 336 U.S. 220 (1949); Railway Express Agency _v._ New York, 336 U.S. 106 (1949); Wickard _v._ Filburn, 317 U.S. 111 (1942); United States _v._ Petrillo, 332 U.S. 1 (1947); American Power & Light Co. _v._ Securities & Exchange Commission, 329 U.S. 90 (1946); Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940). _See also_ Railroad Retirement Board _v._ Alton R. Co., 295 U.S. 330 (1935); Home Bldg. & Loan Assoc. _v._ Blaisdell, 290 U.S. 398 (1934); Arizona _v._ California, 283 U.S. 423 (1931); McCray _v._ United States, 195 U.S. 27 (1904); Hamilton _v._ Kentucky Distilleries & W. Co., 251 U.S. 146 (1919). Compare, however, Bailey _v._ Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922), where the Court considered the motives of the legislation. [281] 198 U.S. 45 (1905). [282] 297 U.S. 1 (1936). The majority opinion evoked a protest from Justice Stone who said in dissenting: "The power of courts to declare ... [an act of Congress unconstitutional] is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government." Ibid. 78-79. [283] United States _v._ Congress of Industrial Organizations, 335 U.S. 106 (1948); Miller _v._ United States, 11 Wall. 268 (1871). [284] _See_, for example, Michaelson _v._ United States, 266 U.S. 42 (1924), where the Court narrowly construed those sections of the Clayton Act regulating the power of courts to punish contempt in order to avoid constitutional difficulties. _See also_ United States _v._ Delaware & H.R. Co., 213 U.S. 366 (1909), where the Hepburn Act was narrowly construed. Judicial disallowance in the guise of statutory interpretation was foreseen by Hamilton, _see_ Federalist No. 81. [285] Pollock _v._ Farmers' L. & T. Co., 158 U.S. 429, 601, 635 (1895). [286] In the first Guffey-Snyder (Bituminous Coal) Act of 1935 (49 Stat. 991), there was a section providing for separability of provisions, but the Court none the less held the price-fixing provisions inseparable from the labor provisions which it found void and thereby invalidated the whole statute. Carter _v._ Carter Coal Co., 298 U.S. 238, 312-316 (1936). On this point _see also_ the dissent of Chief Justice Hughes. Ibid. 321-324. [287] 157 U.S. 429, 574-579 (1895). [288] Justice Brandeis dissenting in Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393, 405-411 (1932) states the rules governing the binding force of precedents and collects the decisions overruling earlier decisions to 1932. In Helvering _v._ Griffiths, 318 U.S. 371, 401 (1948), Justice Jackson lists other cases overruled between 1932 and 1943. _Cf._ Smith _v._ Allwright, 321 U.S. 649 (1944) for similar list. [289] 321 U.S. 649, 665 (1944). [290] 295 U.S. 45 (1935). [291] 321 U.S. 649, 669. Justice Roberts in a dissent, in which Justice Frankfurter joined, also protested against overruling "earlier considered opinions" in Mahnich _v._ Southern S.S. Co., 321 U.S. 96, 112-113 (1944). More recently in United States _v._ Rabinowitz, 339 U.S. 56 (1950), Justice Frankfurter has protested in a dissent against reversals of earlier decisions immediately following changes of the court's membership. "Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of chance--for instance, of unexpected changes in the Court's composition and the contingencies in the choice of successors." Ibid. 80. [292] _See_ Corwin, Judicial Review in Action, 74 University of Pennsylvania Law Review 639 (1926). [293] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105 (1933), citing Mosher _v._ Phoenix, 287 U.S. 29, 30 (1932). [294] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105 (1933). _See also_ Binderup _v._ Pathe Exchange, 263 U.S. 291, 305-308 (1923); South Covington & C. St. Ry. Co. _v._ Newport, 259 U.S. 97, 99 (1922); Hull _v._ Burr, 234 U.S. 712, 720 (1914); The Fair _v._ Kohler Die Co., 228 U.S. 22, 25 (1913); Montana Catholic Missions _v._ Missoula County, 200 U.S. 118, 130 (1906); Western Union Tel. Co. _v._ Ann Arbor R. Co., 178 U.S. 239 (1900). [295] Newburyport Water Co. _v._ Newburyport, 193 U.S. 561, 576 (1904). For these issues, _see also_ Bell _v._ Hood, 327 U.S. 678 (1946). [296] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105-106 (1933). [297] 299 U.S. 109, 112-113 (1936). [298] Whether the doctrine that the plaintiff must allege the constitutional question to make the case one arising under the Constitution rests on constitutional or statutory grounds is uncertain. _See_ Tennessee _v._ Union and Planters' Bank, 152 U.S. 454 (1894); Oregon Short Line and Utah N. Ry. Co. _v._ Skottowe, 162 U.S. 490, 492 (1896); Galveston, H. & S.A. Ry. Co. _v._ Texas, 170 U.S. 226, 236 (1898); Sawyer _v._ Kochersperger, 170 U.S. 303 (1898); Board of Councilmen of Frankfort _v._ State National Bank, 184 U.S. 696 (1902); Boston and Montana Consolidated Copper & Silver Mining Co. _v._ Montana Ore Purchasing Co., 188 U.S. 632, 639 (1903). Some of these cases apply to the removal of cases from State courts where the plaintiff does not aver a federal question. On this point note the following statement of Chief Justice Fuller in Arkansas _v._ Kansas & T.C. Co. & S.F.R., 183 U.S. 185, 188 (1901): "Hence it has been settled that a case cannot be removed from a State court into the Circuit Court of the United States on the sole ground that it is one arising under the Constitution, laws or treaties of the United States, unless that appears by plaintiff's statement of his own claim; and if it does not so appear, the want of it cannot be supplied by any statement of the petition for removal or in the subsequent pleadings. And moreover that jurisdiction is not conferred by allegations that defendant intends to assert a defence based on the Constitution or a law or treaty of the United States, or under statutes of the United States, or of a State, in conflict with the Constitution." [299] 5 Cr. 61 (1809). [300] 9 Wheat. 738 (1824). [301] 115 U.S. 1 (1885). [302] 22 Stat. 162, § 4 (1882). [303] 38 Stat. 803, § 5 (1915). [304] 43 Stat. 936, 941 (1925); 28 U.S.C.A. § 1349. [305] 3 Stat. 195, 198 (1815). [306] 4 Stat. 632, 633, § 3 (1833). [307] 12 Stat. 755, 756, § 5 (1863). [308] 28 U.S.C.A. § 1442 (a) (1). [309] 100 U.S. 257 (1880). [310] 1 Wheat. 304 (1816). [311] 6 Wheat. 264 (1821). [312] 100 U.S. 257, 264. _See also_ The Mayor of Nashville _v._ Cooper, 6 Wall. 247 (1868). [313] Lovell _v._ City of Griffin, 303 U.S. 444 (1938). [314] Stoll _v._ Gottlieb, 305 U.S. 165 (1938). [315] Indiana ex rel. Anderson _v._ Brand, 303 U.S. 95 (1938). [316] Southwestern Bell Telephone Co. _v._ Oklahoma, 303 U.S. 206 (1938). [317] Adam _v._ Saenger, 303 U.S. 59, 164 (1938). [318] United Gas Public Service Co. _v._ Texas, 303 U.S. 123, 143 (1938). [319] 279 U.S. 159 (1929). [320] Lane _v._ Wilson, 307 U.S. 268, 274 (1939). It is fairly obvious, of course, that whether State courts have exceeded their powers under the State Constitution is not a federal question. This rule was applied in Schuylkill Trust Co. _v._ Pennsylvania, 302 U.S. 506, 512 (1938), where it was contended that instead of construing a State statute, the courts had actually amended it by a species of judicial legislation prohibited by the State constitution. [321] United States _v._ Ravara, 2 Dall. 297 (1793). [322] Börs _v._ Preston, 111 U.S. 252 (1884). [323] Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884). [324] 280 U.S. 379, 383-384 (1930). [325] 11 Wheat. 467 (1826). [326] 135 U.S. 403, 432 (1890). [327] Ex parte Gruber, 269 U.S. 302 (1925). [328] 1 Stat. 73 (1789). [329] _See_ W.W. Willoughby, The Constitutional Law of the United States, III, 1339, 1347 (New York, 1929). [330] Willoughby, _op. cit._, III, 1339. [331] 1 Stat. 73, § 9 (1789). [332] Justice Washington in Davis _v._ Brig Seneca, 21 Fed. Cas. No. 12,670 (1829). [333] The "Vengeance," 3 Dall. 297 (1796); The "Schooner Sally," 2 Cr. 406 (1805); The "Schooner Betsey," 4 Cr. 443 (1808); The "Samuel," 1 Wheat. 9 (1816); The "Octavia," 1 Wheat. 20 (1816). [334] New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344, 386 (1848). [335] Waring _v._ Clarke, 5 How. 441 (1847); Ex parte Easton, 95 U.S. 68 (1877); North Pacific S.S. Co. _v._ Hall Brothers M.R. & S. Co., 249 U.S. 119 (1919); Grant Smith-Porter Ship Co. _v._ Rohde, 257 U.S. 469 (1922). [336] Sheppard _v._ Taylor, 5 Pet. 675, 710 (1831). [337] New England M. Ins. Co. _v._ Dunham, 11 Wall. 1, 31 (1871). [338] Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900). [339] Atlee _v._ Northwestern Union P. Co., 21 Wall. 389 (1875); Ex parte McNiel, 13 Wall. 236 (1872). [340] O'Brien _v._ Miller, 168 U.S. 287 (1897); The "Grapeshot" _v._ Wallerstein, 9 Wall. 129 (1870). [341] New Bedford Dry Dock Co. _v._ Purdy, 258 U.S. 95 (1922); North Pac. S.S. Co. _v._ Hall Bros. M.R. & S. Co., 249 U.S. 119 (1919); The General Smith, 4 Wheat. 438 (1819). [342] New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344 (1848). [343] Ex parte Easton, 95 U.S. 68 (1877). [344] Andrews _v._ Wall, 3 How. 568 (1845). [345] Janney _v._ Columbia Ins. Co., 10 Wheat. 411, 412, 415, 418 (1825), cited by Justice Story in The "Tilton," 23 Fed. Cas. No. 14,054 (1830). [346] 95 U.S. 68, 72 (1877). [347] The "Belfast" _v._ Boon, 7 Wall. 624 (1869). [348] Ex parte Garnett, 141 U.S. 1 (1891). [349] The "City of Panama," 101 U.S. 453 (1880); _see also_ Kenward _v._ "Admiral Peoples," 295 U.S. 649 (1935); The "Harrisburg," 119 U.S. 199 (1886). Although a suit for damages for wrongful death will not lie in the courts of the United States under the general maritime law, admiralty courts will enforce a State law creating liability for wrongful death. Just _v._ Chambers, 312 U.S. 383 (1941). [350] The "Raithmoor," 241 U.S. 166 (1916); Erie R. Co. _v._ Erie & Western T. Co., 204 U.S. 220 (1907). _See also_ Canadian Aviator _v._ United States, 324 U.S. 215 (1945). [351] L'Invincible, 1 Wheat. 238 (1816). _See also_ In re Fassett, 142 U.S. 479 (1892). [352] Sherlock _v._ Alling, 93 U.S. 99, 104 (1876). _See also_ Old Dominion S.S. Co. _v._ Gilmore (The "Hamilton"), 207 U.S. 398 (1907). [353] Jennings _v._ Carson, 4 Cr. 2 (1807); Taylor _v._ Carryl, 20 How. 583 (1857). [354] Thirty Hogsheads of Sugar _v._ Boyle, 9 Cr. 191 (1815); The Siren, 13 Wall. 389, 393 (1871). [355] Hudson _v._ Guestier, 4 Cr. 293 (1808). [356] La Vengeance, 3 Dall. 297 (1796); Church _v._ Hubbart, 2 Cr. 187 (1804); The Schooner Sally, 2 Cr. 406 (1805). [357] The Brig. Ann, 9 Cr. 289 (1815); The Sarah, 8 Wheat. 391 (1823); Maul _v._ United States, 274 U.S. 501 (1927). [358] Section 9 of the original Judiciary Act, since carried over in 28 U.S.C.A. § 1333, saves to suitors such a common law remedy. [359] For example, the Court stated in The "Moses Taylor" _v._ Hammons, 4 Wall. 411, 431 (1867), that a proceeding _in rem_ as used in the admiralty courts, is not a remedy afforded by the common law and that a proceeding _in rem_ is essentially a proceeding possible only in admiralty. [360] 318 U.S. 133 (1943). In the course of his opinion for the Court which contains a lengthy historical account of Admiralty jurisdiction in this country, Chief Justice Stone cited Smith _v._ Maryland, 18 How. 71 (1855), where the Court without discussion sustained the seizure and forfeiture of a vessel in a judgment _in rem_ of a State court for violation of a Maryland fishing law within the navigable waters of the State. [361] Judiciary Act of 1789, 1 Stat. 73, § 9; La Vengeance, 3 Dall. 297 (1796); United States _v._ The Schooner Sally, 2 Cr. 406 (1805); United States _v._ Schooner Betsey and Charlotte, 4 Cr. 443 (1808); Whelan _v._ United States, 7 Cr. 112 (1812); The Samuel, 1 Wheat. 9 (1816). [362] Hendry _v._ Moore, 318 U.S. 133, 141 (1943). [363] Charles Warren, The Supreme Court in United States History, II, 93-95 (Boston, 1922). [364] 10 Wheat. 428 (1825). [365] 5 How. 441 (1847). _See also_ New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344 (1848). Aside from rejecting English rules, Waring _v._ Clarke did not affect the rule concerning the ebb and flow of the tide, inasmuch as the collision occurred within the ebb and flow of the tide, though within the body of a county. Citing Peyroux _v._ Howard, 7 Pet. 324 (1833); The "Orleans" _v._ Phoebus, 11 Pet. 175 (1837); The "Thomas Jefferson," 10 Wheat. 328 (1825); United States _v._ Coombs, 12 Pet. 72 (1838). [366] 12 How. 443 (1852). [367] Soon afterwards in Jackson _v._ Steamboat Magnolia, 20 How. 296 (1858), the Court rejected what was left of narrow doctrines of the extent of admiralty jurisdiction by holding that a collision on the Alabama river above tidal flow and wholly within the State of Alabama came within the grant of admiralty jurisdiction in the Judiciary Act of 1789 which extended it "to rivers navigable from the sea * * * as well as upon the high seas." [368] _See_ Warren, II, 512-513. [369] 109 U.S. 629 (1884); _see also_ Perry _v._ Haines, 191 U.S. 17 (1903) where the admiralty jurisdiction was extended to inland canals. [370] 10 Wall. 557 (1871). [371] Ibid. 563. _See also_ The Montello, 20 Wall. 430 (1874), where this doctrine was applied to the Fox River in Wisconsin after it had been improved to become navigable. [372] 141 U.S. 1, 12-15 (1891). This case contains a good review of admiralty cases to the time of its decision. [373] 311 U.S. 377, 407-410 (1940). [374] 316 U.S. 31, 41 (1942). [375] 3 Wheat. 336 (1818). _See also_ Manchester _v._ Massachusetts, 139 U.S. 240 (1891) which followed this rule and which seems to contain a rule analogous to the "silence of Congress" doctrine applied in cases involving State legislation which affect interstate commerce. [376] Ibid. 389. [377] The St. Lawrence, 1 Bl. 522, 527 (1862). [378] The "Lottawanna," 21 Wall. 558, 576, (1875); _see also_ Janney _v._ Columbian Ins. Co., 10 Wheat. 411, 418 (1825), where it was held that the admiralty jurisdiction rests on the grant in the Constitution and can only be exercised under the laws of the United States extending that grant to the respective courts of the United States. [379] 4 Wall. 411, 431, (1867); The Hine _v._ Trevor, 4 Wall. 555 (1867). [380] Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900); Red Cross Line _v._ Atlantic Fruit Co., 264 U.S. 109 (1924). [381] Chelentis _v._ Luckenbach S.S. Co., 247 U.S. 372 (1918). [382] Rodd _v._ Heartt, 21 Wall. 558 (1875). [383] Old Dominion S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907). [384] Ibid. [385] 312 U.S. 383 (1941). [386] 244 U.S. 205 (1917). [387] Ibid. 202, 215-218. This was a five to four decision with Justices Holmes, Pitney, Brandeis, and Clarke dissenting. Justice Holmes' dissent is notable among other reasons for his epigrams that "Judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions," ibid. 221; and that "the common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or some quasi-sovereign that can be identified." Ibid. 222. Justice Pitney attacked the decision as unsupported by precedent and contended that article III speaks only of jurisdiction and does not prescribe the procedural or substantive law by which the exercise of admiralty jurisdiction is to be governed. Ibid. 225-229. [388] 40 Stat. 395 (1917). [389] 253 U.S. 149 (1920). [390] Ibid. 160. For the discussion of the statute as an invalid delegation of power, _see_ ibid. 163-166. Justice Holmes wrote a dissent in which Justices Pitney, Brandeis and Clarke concurred. [391] 42 Stat. 634 (1922); overturned in Washington _v._ W.C. Dawson & Co., 264 U.S. 219 (1924). [392] 44 Stat. 1424. [393] Nogueira _v._ New York, N.H. & H.R. Co., 281 U.S. 128 (1930); Vancouver S.S. Co. _v._ Rice, 288 U.S. 445 (1933). [394] 244 U.S. 205, 216. [395] 317 U.S. 249 (1942). [396] Ibid. 252. [397] Ibid. 253. Citing Baizley Iron Works _v._ Span, 281 U.S. 222, 230 (1930). [398] 317 U.S. 249 (1942). Cases cited as strengthening the claim were Sultan Ry. & Timber Co. _v._ Dept. of Labor, 277 U.S. 135 (1928); Grant Smith-Porter Co. _v._ Rohde, 257 U.S. 469 (1922); Millers' Underwriters _v._ Braud, 270 U.S. 59 (1926); Ex parte Rosengrant, 213 Ala. 202 (104 So. 409), affirmed 273 U.S. 664 (1927); State Industrial Board of New York _v._ Terry & Tench Co., 273 U.S. 639 (1926); Alaska Packers Asso. _v._ Industrial Accident Commission, 276 U.S. 467 (1928). Cases cited against the claim were Baizley Iron Works _v._ Span, 281 U.S. 222 (1930); Gonsalves _v._ Morse Dry Dock Co., 266 U.S. 171 (1924); Nogueira _v._ N.Y., N.H. & H.R. Co., 281 U.S. 128 (1930); Northern Coal & Dock Co. _v._ Strand, 278 U.S. 142 (1928); Employers' Liability Assurance Co. _v._ Cook, 281 U.S. 233 (1930). Justice Black _also_ cites Stanley Morrison, Workmen's Compensation and the Maritime Law, 38 Yale L.J. 472 (1929). In the Davis case the Court was not guilty of exaggeration when it declared that "the very closeness of the cases cited * * * has caused much serious confusion," and went on to picture rather vividly the jurisdictional dilemma of an injured employee who might suffer great financial loss as a result of the delay and expense if he guessed wrong, and might even discover that his claim was "barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere." 317 U.S. 249, 254. Likewise the dilemma affected employers who might not be protected by contributions to a State fund and at the same time be liable for substantial additional payments. The Court had harsh words for the Jensen rule but indicated that its reversal would not solve the problem. Ibid. 256. Justice Black also pointed to Parker _v._ Motor Boat Sales, 314 U.S. 244 (1941), where the Court, after stating that Congress by the Longshoremen's Act accepted the Jensen line of demarcation between State and federal jurisdiction, had proceeded to hold that, in shadowy cases where the claimant was in a twilight zone he was entitled to recover under the State statute in the absence of federal administrative action under the Longshoremen's Act on the ground of its constitutionality. In brief it would seem that in shadowy cases a claimant may elect either a federal court applying the Longshoremen's Act or a State forum applying the State compensation law. [399] 317 U.S. 219, 259. [400] 21 Wall. 558 (1875). [401] Ibid. 572. [402] Ibid. 574-575. [403] The "Lottawanna," 21 Wall. 558, 577. [404] In re Garnett, 141 U.S. 1, 12 (1891). [405] Ibid. 14. [406] 244 U.S. 205, 215 (1917), citing Butler _v._ Boston & Savannah S.S. Co., 130 U.S. 527 (1889), and In re Garnett, 141 U.S. 1 (1891). [407] 253 U.S. 149, 160 (1920). [408] 328 U.S. 1, 5 (1946), citing O'Donnell _v._ Great Lakes Dredge & Dock Co., 318 U.S. 36, 40 (1943), and the cases cited therein. [409] Davis _v._ Department of Labor, 317 U.S. 249 (1942). [410] 2 Commentaries (2d ed., Boston, 1851), § 1674. [411] Dugan _v._ United States, 3 Wheat. 172 (1818). [412] United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888); United States _v._ Beebe, 127 U.S. 338 (1888); United States _v._ American Bell Tel. Co., 128 U.S. 315 (1888). [413] United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888). [414] 28 U.S.C.A. §§ 1331-1332. The original jurisdiction of the Supreme Court does not extend to suits brought by the United States against persons or corporations alone. _See also_ Revised Statutes, §§ 565, 629. United States _v._ West Virginia, 295 U.S. 463 (1935). [415] 136 U.S. 211 (1890). [416] United States _v._ Texas, 143 U.S. 621 (1892). [417] Ibid. 642-646. This suit, it may be noted, was specifically authorized by the act of Congress of May 2, 1890, providing for a temporary government for the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81, 92, § 25. [418] United States _v._ Minnesota, 270 U.S. 181 (1926). For an earlier suit against a State by the United States, _see_ United States _v._ Michigan, 190 U.S. 379 (1903). [419] 295 U.S. 463, 471-475 (1935). [420] United States _v._ Utah, 283 U.S. 64 (1931). [421] United States _v._ California, 332 U.S. 19 (1947). [422] United States _v._ Louisiana, 339 U.S. 699 (1950); United States _v._ Texas, 339 U.S. 707 (1950). [423] 2 Dall. 419, 478 (1793). [424] 6 Wheat. 264, 412 (1821). [425] 8 Pet. 436, 444 (1834). [426] United States _v._ McLemore, 4 How. 286 (1846); Hill _v._ United States, 9 How. 386, 389 (1850); DeGroot _v._ United States, 5 Wall. 419, 431 (1867); United States _v._ Eckford, 6 Wall. 484, 488 (1868); The Siren, 7 Wall. 152, 154 (1869); Nichols _v._ United States, 7 Wall. 122, 126 (1869); The Davis, 10 Wall. 15, 20 (1870); Carr _v._ United States, 98 U.S. 433, 437-439 (1879). "It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. Gibbons _v._ United States, 8 Wall. 269, 275 (1869); Peabody _v._ United States, 231 U.S. 530, 539 (1913); Keokuk & Hamilton Bridge Co. _v._ United States, 260 U.S. 125, 127 (1922). The reason for such immunity as stated by Mr. Justice Holmes in Kawananakoa _v._ Polyblank, 205 U.S. 349, 353 (1907), is because 'there can be no legal right as against the authority that makes the law on which the right depends.' _See also_ The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act does not purport to authorize suits against the United States as such, the question is whether the Authority--which is clearly an agency of the United States--partakes of this sovereign immunity. The answer must be sought in the intention of the Congress. Sloan Shipyards case, 258 U.S. 549, 570 (1922); Federal Land Bank _v._ Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other Government-owned corporations have been held liable for their wrongful acts." 39 Op. Atty. Gen. 559, 562 (1938). [427] 106 U.S. 196 (1882). [428] Lonergan _v._ United States, 303 U.S. 33 (1938). [429] United States _v._ N.Y. Rayon Importing Co., 329 U.S. 654 (1947). [430] United States _v._ Shaw, 309 U.S. 495 (1940). Here it was said that the reasons for sovereign immunity "partake somewhat of dignity and decorum, somewhat of practical administration, somewhat of the political desirability of an impregnable legal citadel where government, as distinct from its functionaries may operate undisturbed by the demands of litigants," ibid. 500-501. The Court went on to hold that when the United States took possession of the assets of Fleet Corporation and assumed its obligations, it did not waive its immunity from suit in a State court on a counterclaim based on the Corporation's breach of contract, ibid. 505. Any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. Great Northern Life Ins. Co. _v._ Read, 322 U.S. 47 (1944). [431] Minnesota _v._ United States, 305 U.S. 382 (1939). The United States was held here to be an indispensable party defendant in a condemnation proceeding brought by a State to acquire a right of way over lands owned by the United States and held in trust for Indian allottees. [432] Brady _v._ Roosevelt S.S. Co., 317 U.S. 575 (1943). [433] United States _v._ Lee, 106 U.S. 196, 207-208 (1882). The principle of sovereign immunity was further disparaged in a brief essay by Justice Miller on the subject of the rule of law, as follows: "Under our system the _people_ * * * are sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right." Ibid. 208-209. [434] 204 U.S. 331 (1907). [435] Louisiana _v._ McAdoo, 234 U.S. 627, 628 (1914). [436] 162 U.S. 255 (1896). At page 271 Justice Gray endeavors to distinguish between this and the Lee Case. It was Justice Gray who spoke for the dissenters in the Lee Case. [437] Land _v._ Dollar, 330 U.S. 731, 737 (1947). Justice Douglas cites for this proposition Cunningham _v._ Macon & B.R. Co., 109 U.S. 446, 452 (1883); Tindal _v._ Wesley, 167 U.S. 204 (1897); Smith _v._ Reeves, 178 U.S. 436, 439 (1900); Scranton _v._ Wheeler, 179 U.S. 141, 152, 153 (1900); Philadelphia Co. _v._ Stimson, 223 U.S. 605, 619, 620 (1912); Goltra _v._ Weeks, 271 U.S. 536 (1926). This last case actually extended the rule of the Lee Case and was virtually overruled in Larson _v._ Domestic & Foreign Corp., 337 U.S. 682 (1949). [438] Oregon _v._ Hitchcock, 202 U.S. 60 (1906); Louisiana _v._ Garfield, 211 U.S. 70 (1908); New Mexico _v._ Lane, 243 U.S. 52 (1917); Wells _v._ Roper, 246 U.S. 335 (1918); Morrison _v._ Work, 266 U.S. 481 (1925); Minnesota _v._ United States, 305 U.S. 382 (1939); Mine Safety Appliances Co. _v._ Forrestal, 326 U.S. 371 (1945). _See also_ Minnesota _v._ Hitchcock, 185 U.S. 373 (1902). For a review of the cases dealing with sovereign immunity _see_ Joseph D. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060 (1946). [439] Cunningham _v._ Macon & B.R. Co., 109 U.S. 446, 451 (1883), quoted by Chief Justice Vinson in the opinion of the Court in Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 698 (1949). [440] Larson _v._ Domestic & Foreign Corp., _supra_, 708. Justice Frankfurter's dissent also contains a useful classification of immunity cases and an appendix listing them. [441] 330 U.S. 731, 735 (1947). The italics are added. [442] 337 U.S. 682 (1949). [443] Ibid. 689-697. [444] Ibid. 701-702. This rule was applied in United States ex rel. Goldberg _v._ Daniels, 231 U.S. 218 (1914), which also involved a sale of government surplus property. After the Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel delivery. The suit was held to be against the United States. _See also_ Perkins, Secretary of Labor _v._ Lukens Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government's authority on the ground that an agent is answerable only to his principal for misconstruction of instructions, given for the sole benefit of the principal. In the Larson Case the Court not only refused to follow Goltra _v._ Weeks, 271 U.S. 536 (1926), but in effect overruled it. The Goltra Case involved an attempt of the Government to repossess barges which it had leased under a contract reserving the right to repossess in certain circumstances. A suit to enjoin repossession was held not to be a suit against the United States on the ground that the actions were personal and in the nature of a trespass. [445] 337 U.S. 682, 703-704. Justice Frankfurter, dissenting, would have applied the rule of the Lee Case. [446] Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 709-710 (1949). [447] Oregon _v._ Hitchcock, 202 U.S. 60 (1906); Louisiana _v._ McAdoo, 224 U.S. 627 (1914); Wells _v._ Roper, 246 U.S. 335 (1918). _See also_ Belknap _v._ Schild, 161 U.S. 10 (1896); and International Postal Supply Co. _v._ Bruce, 194 U.S. 601 (1904). [448] Rickert Rice Mills _v._ Fontenot, 297 U.S. 110 (1936); and Tennessee Electric Power Co. _v._ Tennessee Valley Authority, 306 U.S. 118 (1939) which held that one threatened with direct and special injury by the act of an agent of the Government under a statute may challenge the constitutionality of the statute in a suit against the agent. [449] Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912); Waite _v._ Macy, 246 U.S. 606 (1918). [450] United States _v._ Lee, 106 U.S. 196 (1882); Goltra _v._ Weeks, 271 U.S. 536 (1926); Ickes _v._ Fox, 300 U.S. 82 (1937); Land _v._ Dollar, 330 U.S. 731 (1947). [451] 306 U.S. 381 (1939). [452] Federal Housing Authority _v._ Burr, 309 U.S. 242 (1940). Nonetheless, the Court held that a Congressional waiver of immunity in the case of a government corporation did not mean that funds or property of the United States can be levied on to pay a judgment obtained against such a corporation as the result of waiver of immunity. [453] United States _v._ United States Fidelity Co., 309 U.S. 506 (1940). [454] Charles Warren, The Supreme Court and Disputes Between States, Bulletin of the College of William and Mary, Vol. 34, No. 5, pp. 7-11 (1940). For a more comprehensive treatment of backgrounds as well as the general subject, _see_ Charles Warren, The Supreme Court and Sovereign States, (Princeton, 1924). [455] Warren, The Supreme Court and Disputes Between States, p. 13. However, only three such suits were brought in this period, 1789-1849. During the next 90 years, 1849-1939, at least twenty-nine such suits were brought. Ibid. 13, 14. [456] 2 Dall. 419 (1793). [457] Rhode Island _v._ Massachusetts, 12 Pet. 657, 721 (1838). [458] Ibid. 736-737. [459] Ibid. 737. Chief Justice Taney dissented because of his belief that the issue was not one of property in the soil, but of sovereignty and jurisdiction, and hence political. Ibid. 752-753. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two States, to which neither State is a party does not come within the original jurisdiction of the Supreme Court. Fowler _v._ Lindsay, 3 Dall. 411 (1799). [460] 180 U.S. 208 (1901). [461] Kansas _v._ Colorado, 206 U.S. 46 (1907). [462] 283 U.S. 336 (1931). [463] Ibid. 342. _See also_ Nebraska _v._ Wyoming, 325 U.S. 589 (1945), for the restatement of the familiar principle that the power of apportionment among several States of waters of an interstate river where the demands of the users exceeds the supply is a matter of sufficient importance and dignity as to be justiciable in the Supreme Court. [464] South Dakota _v._ North Carolina, 192 U.S. 286 (1904). [465] Virginia _v._ West Virginia, 220 U.S. 1 (1911). This case is also significant for Justice Holmes' statement that, "The case is to be considered in the untechnical spirit proper for dealing with a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this Court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either State alone." Ibid. 27. [466] Kentucky _v._ Indiana, 281 U.S. 163 (1930). [467] Texas _v._ Florida et al., 306 U.S. 398 (1939). [468] Pennsylvania and Ohio _v._ West Virginia, 262 U.S. 553 (1923). [469] 12 Pet. 657 (1838). [470] 6 Wheat. 264, 378 (1821). [471] 291 U.S. 286 (1934). [472] Massachusetts _v._ Missouri, 308 U.S. 1, 15-16 (1939), citing Florida _v._ Mellon, 273 U.S. 12 (1927). [473] 306 U.S. 398 (1939). [474] 308 U.S. 1, 17, citing Oklahoma _v._ Atchison, T. & S.F.R. Co., 220 U.S. 277, 286 (1911), and Oklahoma _v._ Cook, 304 U.S. 387, 394 (1938). _See also_ New Hampshire _v._ Louisiana, 108 U.S. 76 (1883), which held that a State cannot bring a suit on behalf of its citizens to collect on bonds issued by another State, and Louisiana _v._ Texas, 176 U.S. 1 (1900), which held that a State cannot sue another to prevent maladministration of quarantine laws. [475] 308 U.S. 1, 17. [476] Ibid. 19. [477] The various litigations of Virginia _v._ West Virginia are to be found in 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); 222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S. 202 (1915); 241 U.S. 531 (1916); 246 U.S. 565 (1918). [478] 246 U.S. 565, 591. [479] Ibid. 600. [480] Ibid. 601. [481] Warren, The Supreme Court and Sovereign States, 79. [482] 2 Dall. 419 (1793). [483] Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Florida _v._ Mellon, 273 U.S. 12 (1927); New Jersey _v._ Sargent, 269 U.S. 328 (1926). [484] Pennsylvania _v._ Quicksilver Min. Co., 10 Wall. 553 (1871); California _v._ Southern Pacific Co., 157 U.S. 229 (1895); Minnesota _v._ Northern Securities Co., 184 U.S. 199 (1902). [485] Wisconsin _v._ Pelican Ins. Co., 127 U.S. 265 (1888). [486] 4 Wall. 475 (1867). [487] 6 Wall. 50 (1868). [488] 262 U.S. 447 (1923). [489] 273 U.S. 12 (1927). [490] Oklahoma _v._. Atchison, T. & S.F.R. Co., 220 U.S. 277 (1911); Oklahoma _v._ Cook, 304 U.S. 387 (1938). [491] 6 Wheat. 264, 398-399 (1821). [492] Pennsylvania _v._ Quicksilver Min. Co., 10 Wall. 553 (1871). [493] California _v._ Southern Pacific Co., 157 U.S. 229 (1895); Minnesota _v._ Northern Securities Co., 184 U.S. 199 (1902). [494] 6 Wheat. 264, 398-399. [495] 127 U.S. 265 (1888). [496] 2 Dall. 419, 431-432 (1793). [497] 127 U.S. 265, 289-300. This case also follows the general rule that a corporation chartered by the laws of a State, is a citizen of that State for purposes of federal jurisdiction. [498] 304 U.S. 387 (1938). [499] 220 U.S. 277, 286-289 (1911). [500] 316 U.S. 159 (1942). [501] 220 U.S. 277 (1911). [502] 324 U.S. 439 (1945). [503] 206 U.S. 230 (1907). Here the Court entertained a suit by Georgia and enjoined the Copper company from discharging noxious gases from their works in Tennessee over Georgia's territory. [504] 324 U.S. 439, 447-448, citing and quoting Georgia _v._ Tennessee Copper Co., 206 U.S. 230, 237 (1907). [505] 324 U.S. 439, 450, citing Missouri _v._ Illinois, 180 U.S. 208, 219-224, 241 (1901); Virginia _v._ West Virginia, 246 U.S. 565, 599 (1918); Georgia _v._ Tennessee Copper Co., 206 U.S. 230, 237 (1907). [506] Ibid. 451, 468. Chief Justice Stone, joined by Justices Roberts, Frankfurter, and Jackson dissented on the ground that the suit actually was one for a district court, that a State is without standing to maintain suit for injuries sustained by its citizens and residents for which they may sue in their own behalf, and that as presented the suit was not one in which a court of equity could give effective relief. [507] 2 Cr. 445, 452-453 (1805). [508] Ibid. 453. [509] New Orleans _v._ Winter et al., 1 Wheat. 91 (1816). [510] 54 Stat. 143 (1940); 28 U.S.C.A. 1332. [511] 337 U.S. 582 (1949). [512] Ibid. 583-604. [513] Ibid. 604-625. [514] Ibid. 626-646. [515] Ibid. 646-655. [516] Ibid. 655. [517] Knox _v._ Greenleaf, 4 Dall. 360 (1802). [518] Shelton _v._ Tiffin, 6 How. 163 (1848). [519] Williamson _v._ Osenton, 232 U.S. 619 (1014). [520] Shelton _v._ Tiffin, 6 How. 163 (1848). [521] Williamson _v._ Osenton, 232 U.S. 619 (1914). [522] Jones _v._ League, 18 How. 76 (1855). [523] Shelton _v._ Tiffin, 6 How. 163 (1848). [524] 5 Cr. 61, 86 (1809). [525] 14 Pet. 60 (1840). [526] Strawbridge _v._ Curtiss, 3 Cr. 267 (1806). The Slocomb Case had to be dismissed because two members of the defendant corporation were citizens of the same State as the plaintiffs. [527] 2 How. 497 (1844). [528] Ibid. 558. [529] Muller _v._ Dows, 94 U.S. 444, 445 (1877). This fiction had its beginning in Marshall _v._ Baltimore & Ohio R. Co., 16 How. 314, 329 (1854) and attained final approval in St. Louis & S.F. Ry. Co. _v._ James, 161 U.S. 545, 554 (1896). [530] John Chipman Gray, The Nature and Sources of the Law, 2d ed. (New York, 1927), 34. [531] Dodge _v._ Woolsey, 18 How. 331 (1856); Mechanics' & Traders' Bank _v._ Debolt, 18 How. 380 (1856). [532] Gray, _op. cit._, 185-186. Although Justice Wayne criticized the Strawbridge Case as going too far, later developments in determining the citizenship of corporations, have enabled the Court to restore it to its original status. Consequently the rule still requires that to maintain a diversity proceeding all the parties on one side must be citizens of different States from all the parties on the other side. Treinies _v._ Sunshine Mining Co., 308 U.S. 66 (1939); City of Indianapolis _v._ Chase National Bank, 314 U.S. 63 (1941). [533] _See_ Southern Realty Co. _v._ Walker, 211 U.S. 603 (1909), where two Georgians who conducted all of that business in Georgia created a sham corporation in South Dakota for the sole purpose of bringing suits in the federal courts which ordinarily would have been brought in the Georgia courts. Diversity jurisdiction was held not to exist because of collusion. [534] Black and White Taxicab & T. Co. _v._ Brown & Yellow Taxicab & T. Co., 276 _v._ U.S. 518 (1928). [535] 16 Pet. 1 (1842). [536] 16 Pet. 1. [537] Ibid. 19. Justice Story concluded this portion of the opinion as follows: "The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke _v._ Lyde, 2 Burr. 883, 887, to be in great measure, not the law of a single country only, but of the commercial world. _Non erit alia lex Romae, alia Athenis; alia nunc, alia posthac, sed et apud omenes gentes, et omni tempore una eademque lex obtinebit._" Ibid. 9. [538] _See_ Simeon E. Baldwin, The American Judiciary (New York, 1920), 169-170. _See also_ Justice Catron's statement in Swift _v._ Tyson, 16 Pet. 1, 23. [539] The Tyson doctrine was extended to wills in Lane _v._ Vick, 3 How. 464 (1845); to torts in Chicago City _v._ Robbins, 2 Bl. 418 (1862); to real estate titles and the rights of riparian owners in Yates _v._ Milwaukee, 10 Wall. 497 (1870); to mineral conveyances in Kuhn _v._ Fairmont Coal Co., 215 U.S. 349 (1910); to contracts in Rowan _v._ Runnels, 5 How. 134 (1847); and to the right to exemplary or punitive damages in Lake Shore & M.S.R. Co. _v._ Prentice, 147 U.S. 101 (1893). By 1888 there were 28 kinds of cases in which federal and State courts applied different rules of the common law. _See_ George C. Holt, The Concurrent Jurisdiction of the Federal and State Courts (New York, 1888), 159-188. [540] Rowan _v._ Runnels, 5 How. 134 (1847); Gelpcke _v._ Dubuque, 1 Wall. 175 (1864). [541] Williamson _v._ Berry, 8 How. 495 (1850); Pease _v._ Peck, 18 How. 595 (1856); Watson _v._ Tarpley, 18 How. 517 (1856). [542] Lane _v._ Vick, 3 How. 464 (1845); Williamson _v._ Berry, 8 How. 495 (1850); Gelpcke _v._ Dubuque, 1 Wall. 175 (1864). [543] 149 U.S. 308, 401-404 (1893). [544] 215 U.S. 349, 370 (1910). [545] 276 U.S. 518 (1928). [546] Ibid. 533. Justice Holmes was influenced in part by the article of Charles Warren, New Light On The History Of The Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 81-88 (1923), in which Mr. Warren produced evidence to show that Justice Story's interpretation in the Tyson Case was contrary to the intention of the framers of the act. Mr. Warren did not, however, contend that the Tyson rule was unconstitutional. Justice Holmes was joined in his dissent by Justices Brandeis and Stone. In addition to judicial dissatisfaction with the Tyson rule as manifested in dissents, disapproval in Congressional quarters resulted in bills by Senators Walsh and Norris in the 70th and 71st Congresses, S. 3151, 70th Cong., 1st. sess., S. Rept. 626 of Committee on the Judiciary, March 27, 1928; S. 4357, 70th Cong., 2d. sess., S. Rept. 691, Committee on the Judiciary, May 20, 1930; S. 4333, 70th Cong., 1st. sess.; S. 96, 71st Cong., 1st. sess. [547] 293 U.S. 335 (1934). [548] This concept was first used by Justice Bradley in Burgess _v._ Seligman, 107 U.S. 21 (1883). [549] 293 U.S. 335, 339. [550] 304 U.S. 64 (1938). [551] 304 U.S. 64, 69-70, 77-78. [552] Ibid. 79-80. [553] 304 U.S. 64, 80-90. [554] Ibid. 90, 91-92. [555] 311 U.S. 223 (1940). [556] 311 U.S. 169 (1940). This decision has been thoroughly criticized by Arthur L. Corbin in The Laws of the Several States, 50 Yale L.J. 762 (1941). _See also_ Mitchell Wendell, Relations Between Federal and State Courts (New York, 1949), 209-223. This book contains a good account of the operation of the Tyson and Tompkins rules, pp. 113-247. [557] 333 U.S. 153 (1948). For other cases applying the rule that decisions of State intermediate courts are binding unless there is convincing evidence that the State law is otherwise, _see_ Six Companies of California _v._ Highway Dist., 311 U.S. 180 (1940); Stoner _v._ New York Life Ins. Co., 311 U.S. 464 (1940). [558] Vandenbark _v._ Owens-Illinois Co., 311 U.S. 538 (1941). [559] 28 U.S.C.A. § 1652; 62 Stat. 944 (1948). In 1938, the year of the Tompkins decision, the Conformity Act of 1872 (17 Stat. 196 § 5) was superseded; and from that time until the enactment of 62 Stat. 944, the federal courts were guided in diversity cases by the Federal Rules of Civil Procedure formulated by the Supreme Court by virtue of the authority delegated it, in 1934, by 48 Stat. 1064. [560] Ruhlin _v._ New York Life Ins. Co., 304 U.S. 202 (1938). [561] 326 U.S. 99 (1945). [562] Ibid. 108-109. [563] Ibid. 109. Justice Rutledge wrote a dissent in which Justice Murphy concurred. Justice Rutledge objected to the rigid application of a statute of limitations to suits in equity and to the implication that Congress could not authorize federal courts to administer equitable relief in accordance with the substantive rights of the parties, notwithstanding State statutes of limitations barring such suits in State courts. In his view, if any change were to be made, it was for Congress and not the Court to make it. In line with this ruling _see_ Ragan _v._ Merchants Transfer & W. Co., 337 U.S. 530 (1949); _also_ Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541, 555 (1949). [564] 2 Story, Commentaries, 467 § 1696 (2d. ed., 1851). [565] An interesting case which reached the Supreme Court under this clause was Pawlet _v._ Clark, 9 Cr. 292 (1815). In his opinion for the Court, Justice Story took occasion to assert that grants of land by a State to a town could not afterwards be repealed so as to divest the town of its rights under the grant. Ibid. 326; _cf._ Trenton _v._ New Jersey, 262 U.S. 182 (1923). [566] The Exchange _v._ McFaddon, 7 Cr. 116 (1812); Berizzi Bros. Co. _v._ S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola _v._ The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. _v._ United States, 304 U.S. 126, 134 (1938). [567] Principality of Monaco _v._ Mississippi, 292 U.S. 313, 330 (1934). [568] Ibid. [569] The "Sapphire," 11 Wall. 164, 167 (1871). [570] Ibid. 167. This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the right to bring suit, or to continue one that has been brought. [571] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938); citing Jones _v._ United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R. Co., 265 U.S. 573 (1924). Whether a government is to be regarded as the legal representative of a foreign State is, of course, a political question. [572] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 134 (1938); citing United States _v._ The Thekla, 266 U.S. 328, 340, 341 (1924); United States _v._ Stinson, 197 U.S. 200, 205 (1905); The Davis, 10 Wall. 15 (1870); The Siren, 7 Wall. 152, 159 (1869). _See also_ Ex parte Republic of Colombia, 195 U.S. 604 (1904). [573] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938). Among other benefits which the Court cites as not extending to foreign States as litigants include exemption from costs and from giving discovery. Decisions are also cited to the effect that a sovereign plaintiff "should so far as the thing can be done, be put in the same position as a body corporate." Ibid, note 2, pp. 134-135. [574] 5 Pet. 1, 16-20 (1831). [575] Hodgson & Thompson _v._ Bowerbank, 5 Cr. 303 (1809). [576] Jackson _v._ Twentyman, 2 Pet. 136 (1829). [577] Susquehanna & Wyoming V.R. & C. Co. _v._ Blatchford, 11 Wall. 172 (1871). _See_, however, Lacassagne _v._ Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had jurisdiction over a proceeding to impeach its former decree, although the parties were new and were both aliens. [578] Browne _v._ Strode, 5 Cr. 303 (1809). [579] 2 Dall. 419 (1793). For an earlier case where the point of jurisdiction was not raised, _see_ Georgia _v._ Brailsford, 2 Dall. 402 (1792). For subsequent cases prior to 1861, _see_ Rhode Island _v._ Massachusetts, 12 Pet. 657 (1838); Florida _v._ Georgia, 17 How. 478 (1855). [580] Kentucky _v._ Dennison, 24 How. 66, 98 (1861). [581] 1 Cr. 137 (1803). [582] Ibid. 174. _See also_ Wiscart _v._ Dauchy, 3 Dall. 321 (1796). This exclusive interpretation of article III posed temporary difficulties for Marshall in Cohens _v._ Virginia, 6 Wheat. 264 (1821), where he gave a contrary interpretation to other provisions of the Article. The exclusive interpretation as applied to original jurisdiction of the Supreme Court has been followed in Ex parte Bollman, 4 Cr. 75 (1807); New Jersey _v._ New York, 5 Pet. 284 (1831); Ex parte Barry, 2 How. 65 (1844); Ex parte Vallandigham, 1 Wall. 243, 252 (1864); and Ex parte Yerger, 8 Wall. 85, 98 (1869). In the curious case of Ex parte Levitt, Petitioner, 302 U.S. 633 (1937), the Court was asked to purge itself of Justice Black on the ground that his appointment to it violated the second clause of section 6 of Article I. Although it rejected petitioner's application, it refrained from pointing out that it was being asked to assume original jurisdiction contrary to the holding in Marbury _v._ Madison. [583] 252 U.S. 416 (1920). [584] 262 U.S. 447 (1923). [585] 157 U.S. 229, 261 (1895). Here the Court refused to take jurisdiction on the ground that the City of Oakland and the Oakland Water Company, a citizen of California, were so situated that they would have to be brought into the case, which would make it then a suit between a State and citizens of another State and its own citizens. The same rule was followed in New Mexico _v._ Lane, 243 U.S. 52, 58 (1917); and in Louisiana _v._ Cummins, 314 U.S. 577 (1941). _See also_ Texas _v._ Interstate Commerce Commission, 258 U.S. 158, 163 (1922). For the original jurisdiction of the Supreme Court in specific classes of cases _see_ the discussion of suits affecting ambassadors and suits between States, _supra_, pp. 571, 591-593. [586] Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449 (1884). [587] 127 U.S. 265 (1888). [588] 1 Stat. 73, 80. [589] 127 U.S. 265, 297. _Note also_ the dictum in Cohens _v._ Virginia, 6 Wheat. 264, 398-399 (1821) to the effect that "* * * the original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal courts; not to those cases in which an original suit might not be instituted in a federal court. Of the last description, is every case between a State and its citizens, and, perhaps every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction." [590] Ohio ex rel. Popovici _v._ Agler, 280 U.S. 379 (1930). [591] 3 Dall. 321 (1796). Justice Wilson dissented from this holding and contended that the appellate jurisdiction, as being derived from the Constitution, could be exercised without an act of Congress or until Congress made exceptions to it. [592] Durousseau _v._ United States, 6 Cr. 307 (1810). [593] 6 Wall. 318 (1868); 7 Wall. 506 (1869). [594] 15 Stat. 44 (1868). [595] 7 Wall. 506, 514. The Court also took occasion to reiterate the rule that an affirmation of appellate jurisdiction is a negative of all other and stated that as a result acts of Congress providing for the exercise of jurisdiction had "come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to * * * it." It continued grandly: "* * * judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer." Ibid. 513, 515. [596] _See_ especially the parallel case of Ex parte Yerger, 8 Wall. 85 (1869). For cases following Ex parte McCardle, _see_ Railroad Co. _v._ Grant, 98 U.S. 398, 491 (1878); Kurtz _v._ Moffitt, 115 U.S. 487, 497 (1885); Cross _v._ Burke, 146 U.S. 82, 86 (1892); Missouri _v._ Missouri Pacific R. Co., 292 U.S. 13, 15 (1934); Stephan _v._ United States, 319 U.S. 423, 426 (1943). _See also_ United States _v._ Bitty, 208 U.S. 393, 399-400 (1908), where it was held that there is no right to appeal to the Supreme Court except as an act of Congress confers it. [597] 105 U.S. 381 (1882). [598] Ibid. 386. _See also_ Barry _v._ Mercein, 5 How. 103, 119 (1847); National Exchange Bank _v._ Peters, 144 U.S. 570 (1892); American Construction Co. _v._ Jacksonville T. & K.W.R. Co., 148 U.S. 372 (1893); Colorado Central Consol. Min. Co. _v._ Turck, 150 U.S. 138 (1893); St. Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281 (1908); Luckenbach S.S. Co. _v._ United States, 272 U.S. 533 (1926). [599] 1 Wheat. 304 (1816). [600] Ibid. 374. [601] Ibid. 331. This recognition, however, is followed by the statement that "the whole judicial power of the United States should be at all times, vested either in an original or appellate form, in some courts created under its authority." [602] 2 Commentaries, §§ 1590-1595. [603] 1 Stat. 73, §§ 9-11. [604] Ibid. [605] Ibid. §§ 14, 15, 17, 18. [606] Ibid. § 16. [607] Dall. 8 (1799). [608] Ibid. 9. [609] Ex parte Bollman, 4 Cr. 75, 93 (1807). Two years later Chief Justice Marshall in Bank of United States _v._ Deveaux, 5 Cr. 61 (1809), held for the Court that the right to sue does not imply a right to sue in a federal court unless conferred expressly by an act of Congress. [610] 7 Cr. 32 (1812). [611] Ibid. 33. [612] Ibid. [613] 12 Pet. 657, 721-722 (1838). [614] 3 How. 236 (1845). [615] Ibid. 244-245. To these sweeping assertions of legislative supremacy Justices Story and McLean took vigorous exception. They denied the authority of Congress to deprive the courts of power and vest it in an executive official because "the right to construe the laws in all matters of controversy is of the very essence of judicial power." In their view the act as interpreted violated the principle of the separation of powers, impaired the independence of the judiciary, and merged the executive and judicial department. Dissent of Justice McLean, pp. 264 and following. [616] 8 How. 441 (1850). [617] Ibid. 449. [618] Rice _v._ M. & N.W.R. Co., 1 Bl. 358, 374 (1862); Mayor of Nashville _v._ Cooper, 6 Wall. 247, 251-252 (1868); United States _v._ Eckford, 6 Wall. 484, 488 (1868); Ex parte Yerger, 8 Wall. 85, 104 (1868); case of the Sewing Machine Companies, 18 Wall. 553, 557-558 (1874); Morgan _v._ Gay, 19 Wall. 81, 83 (1874); Gaines _v._ Fuentes, 92 U.S. 10, 18 (1876); Jones _v._ United States, 137 U.S. 202, 211 (1890); Holmes _v._ Goldsmith, 147 U.S. 150, 158 (1893); Johnson Steel Street Rail Co. _v._ Wharton, 152 U.S. 252, 260 (1894); Plaquemines Tropical Fruit Co. _v._ Henderson, 170 U.S. 511, 513-521 (1898); Stevenson _v._ Fain, 195 U.S. 165, 167 (1904); Kentucky _v._ Powers, 201 U.S. 1, 24 (1906); Venner _v._ Great Northern R. Co., 209 U.S. 24, 35 (1908); Ladew _v._ Tennessee Copper Co., 218 U.S. 357, 358 (1910); Kline _v._ Burke Construction Co., 260 U.S. 226, 233, 234 (1922). _See also_ Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); Federal Power Commission _v._ Pacific Power & Light Co., 307 U.S. 156 (1939). [619] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 251-252 (1868). The rule of Cary _v._ Curtis and Sheldon _v._ Sill was restated with emphasis many years later in Kline _v._ Burke Construction Co., 260 U.S. 226, 233-234 (1922), where Justice Sutherland, speaking for the Court, proceeded to say to article III, §§ 1 and 2: "The effect of these provisions is not to vest jurisdiction in the inferior courts over the designated cases and controversies but to delimit those in respect of which Congress may confer jurisdiction upon such courts as it creates. Only the original jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. * * * The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it. * * * And the jurisdiction having been conferred may, at the will of Congress, be taken away in whole or in part; and if withdrawn without a saving clause all pending cases though cognizable when commenced must fall." [620] 56 Stat. 23 (1942). [621] 319 U.S. 182 (1943). [622] 321 U.S. 414 (1944). [623] Ibid. 468. [624] _See infra_, pp. 515-528. [625] 26 U.S.C.A. 3653. [626] _See_ for example Snyder _v._ Marks, 109 U.S. 189 (1883); Cheatham _v._ United States, 92 U.S. 85 (1875); Shelton _v._ Platt, 139 U.S. 591 (1891); Pacific Steam Whaling Co. _v._ United States, 187 U.S. 447 (1903); Dodge _v._ Osborn, 240 U.S. 118 (1916). [627] Dodge _v._ Brady, 240 U.S. 122, 126 (1916). [628] Hill _v._ Wallace, 259 U.S. 44 (1922); Lipke _v._ Lederer, 259 U.S. 557 (1922); Miller _v._ Standard Nut Margarine Co., 284 U.S. 498, 509 (1932). [629] Enjoining the Assessment and Collection of Federal Taxes Despite Statutory Prohibition, 49 Harv. L. Rev. 109 (1935). [630] Allen _v._ Regents of University System of Georgia, 304 U.S. 439, 445-449 (1938). [631] 47 Stat. 70 (1932). [632] Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance _v._ Sanitary Grocery Co., 303 U.S. 552. 562-563 (1838); Milk Wagon Drivers' Union _v._ Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940). [633] 330 U.S. 258 (1947). Virginian R. Co. _v._ System Federation No. 40, 300 U.S. 515 (1937), in some ways constitutes an exception to section 9 of the statute by sustaining a mandatory injunction issued against an employer on the petition of employees on the ground that the prohibition of section 9 does not include mandatory injunctions, but "blanket injunctions which are usually prohibitory in form." For other acts of Congress limiting the power of the federal courts to issue injunctions _see infra_, pp. 523-525. [634] 1 Wheat. 304 (1816). [635] 18 How. 272 (1856). [636] 285 U.S. 22 (1932). [637] Ibid 56-57. _Cf._, however, Shields _v._ Utah, Idaho R. Co., 305 U.S. 185 (1938). [638] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Kline _v._ Burke Construction Co., 260 U.S. 226, 233, 234 (1922). _See also_ Hodgson _v._ Bowerbank, 5 Cr. 303, 304 (1809) where Chief Justice Marshall disposed of the effort of British subjects to docket a case in a circuit court, saying, "turn to the article of the Constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the Constitution." [639] Hayburn's Case, 2 Dall. 409 (1792). [640] United States _v._ Ferriera, 13 How. 40 (1852); Gordon _v._ United States, 117 U.S. 697 (1864); Muskrat _v._ United States, 219 U.S. 346 (1911). [641] In addition to the cases cited in note 3[Transcriber's Note: Reference is to footnote 640 above.], _see_ Chicago & S. Air Lines _v._ Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948). [642] In addition to the cases cited in notes 2, 3, and 4[Transcriber's Note: Reference is to footnotes 639, 640, and 641 above.] _see_ Federal Radio Commission _v._ General Electric Co., 281 U.S. 464, 469 (1930); Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927); Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923). _See also_ the dissenting opinion of Justice Rutledge in Yakus _v._ United States, 321 U.S. 414, 468 (1944). [643] Tutun _v._ United States, 270 U.S. 568 (1926), where the Court held that the United States is always a possible adverse party to a naturalization petition. [644] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893), where the Court sustained an act of Congress requiring the registration of Chinese and creating agencies for the expulsion of aliens unlawfully within the country and for the issuance of certificates to those entitled to remain. The act provided for special proceedings in such cases and prescribed the evidence the courts were to receive and the weight to be attached to it. The procedure was held to contain all the elements of a case--"a complainant, a defendant, and a judge--_actor_, _reus_, _et judex_." pp. 728-729. [645] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899). Here the Court sustained an act of Congress which directed the Attorney General to bring a suit on behalf of the United States against the appellants to determine whether an award made by an international claims commission was obtained by fraud. The Court of Claims was vested with full jurisdiction with appeal to the Supreme Court to hear the case, decide it, to issue all proper decrees therein, and to enforce them by injunction. The Court regarded the money received by the United States from Mexico as property of the United States. This together with the interest of Congress in national honor in dealing with Mexico was sufficient to enable it to authorize a suit for the decision of a question "peculiarly judicial in nature." pp. 458-459. [646] Southern Pacific Co. _v._ Jensen, 244 U.S. 205 (1917). [647] Taylor _v._ Carryl, 20 How. 583 (1858). [648] 1 Wheat. 304 (1816). [649] 6 Wheat. 264 (1821). [650] 21 How. 506 (1859). [651] For a full account of this episode _see_ Warren, Supreme Court in United States History, II, 193-194. _See also_ Baldwin, The American Judiciary, 163. [652] 6 Pet. 515, 596 (1832). _See also_ Warren, Supreme Court in United States History, II, 213; and Baldwin, _op. cit._, 164. It was Worcester _v._ Georgia which allegedly provoked the probably apocryphal comment attributed to President Jackson, "'Well, John Marshall has made his decision, now let him enforce it.'" 2 Warren, Ibid. 219. [653] Mast, Foos & Co. _v._ Stover Mfg. Co., 177 U.S. 485 (1900). [654] Covell _v._ Heyman, 111 U.S. 176 (1884). [655] Riehle _v._ Margolies, 279 U.S. 218 (1929); Harkin _v._ Brundage, 276 U.S. 36 (1928); Wabash R. Co. _v._ Adelbert College, 208 U.S. 38 (1908); Harkrader _v._ Wadley, 172 U.S. 148 (1898); Central National Bank _v._ Stevens, 169 U.S. 432 (1898); Shields _v._ Coleman, 157 U.S. 168 (1895); Moran _v._ Sturges, 154 U.S. 256 (1894); Krippendorf _v._ Hyde, 110 U.S. 276 (1884); Covell _v._ Heyman, 111 U.S. 176 (1884); Watson _v._ Jones, 13 Wall. 679 (1872); Buck _v._ Colbath, 3 Wall. 334 (1866); Freeman _v._ Howe, 24 How. 450 (1861); Orton _v._ Smith, 18 How. 263 (1856); Taylor _v._ Carryl, 20 How. 583 (1858); Peck _v._ Jenness, 7 How. 612 (1849). For later cases _see_ Toucey _v._ New York Life Ins. Co., 314 U.S. 118 (1941). Princess Lida of Thurn & Taxis _v._ Thompson, 305 U.S. 456 (1939); Brillhart _v._ Excess Ins. Co., 316 U.S. 491 (1942); Mandeville _v._ Canterbury, 318 U.S. 47 (1943); Markham _v._ Allen, 326 U.S. 490 (1946); Propper _v._ Clark, 337 U.S. 472 (1949). [656] McKim _v._ Voorhies, 7 Cr. 279 (1812); Duncan _v._ Darst, 1 How. 301 (1843); United States ex rel. Riggs _v._ Johnson County, 6 Wall. 166 (1868); Moran _v._ Sturges, 154 U.S. 256 (1894); Farmers' Loan & Trust Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 (1900) [657] 6 Wall. 166 (1868). [658] Princess Lida of Thurn & Taxis _v._ Thompson, 305 U.S. 456 (1939). This case rests on the principle of comity that where there are two suits _in rem_ or _quasi in rem_, as they were held to be here, so that the Court has possession of property which is the subject of litigation or must have control of it in order to proceed with the cause and grant the relief sought, the jurisdiction of one court must yield to that of the other. The principle, applicable to both federal and State courts, that the Court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, was held not to be confined to cases where the property has actually been seized under judicial process, but applies as well to suits brought for marshalling assets, administering trusts, or liquidating estates and to suits of a similar nature, where to give effect to its jurisdiction the Court must control the property. [659] 1 Stat. 335 (1793); 28 U.S.C.A. § 2283. In the judicial code an exception is made to proceedings in bankruptcy. [660] Diggs _v._ Wolcott, 4 Cr. 179 (1807); Orton _v._ Smith, 18 How. 263 (1856); _see_ especially Peck _v._ Jenness, 7 How. 612 (1849) where the Court held that the prohibition of the act of 1793 extended to injunction suits brought against the parties to a State court proceeding as well as to the State court itself. [661] Freeman _v._ Howe, 24 How. 450 (1861); Julian _v._ Central Trust Co., 193 U.S. 93 (1904); Riverdale Cotton Mills _v._ Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905); Looney _v._ Eastern Texas R. Co., 247 U.S. 214 (1918). [662] Farmers' Loan & Trust Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 (1900); Riverdale Cotton Mills _v._ Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905); Julian _v._ Central Trust Co., 193 U.S. 93 (1904); Kline _v._ Burke Construction Co., 260 U.S. 226 (1922). For a discussion of this rule _see_ Toucey _v._ New York Life Ins. Co., 314 U.S. 118, 134-136 (1941). [663] Ex parte Young, 209 U.S. 123 (1908), is the leading case. [664] Arrowsmith _v._ Gleason, 129 U.S. 86 (1889); Marshall _v._ Holmes, 141 U.S. 589 (1891); Simon _v._ Southern R. Co., 236 U.S. 115 (1915). [665] French _v._ Hay, 22 Wall. 231 (1875); Dietzsch _v._ Huidekoper, 103 U.S. 494 (1881); Madisonville Traction Co. _v._ St. Bernard Mining Co., 196 U.S. 239 (1905). [666] The earlier cases are Root _v._ Woolworth, 150 U.S. 401 (1893); Prout _v._ Starr, 188 U.S. 537 (1903); Juilian _v._ Central Trust Co., 193 U.S. 93 (1904). [667] 314 U.S. 118 (1941). [668] Ibid. 133-141. Justice Reed, in a dissent in which Chief Justice Stone and Justice Roberts concurred, also reviewed the authorities. [669] Southern Ry. Co. _v._ Painter, 314 U.S. 155 (1941). [670] 9 Wheat. 738 (1824). [671] 209 U.S. 123 (1908). _See also_ Smyth _v._ Ames, 169 U.S. 466 (1898); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894). [672] Harkrader _v._ Wadley, 172 U.S. 148 (1898); In re Sawyer, 124 U.S. 200 (1888). [673] Ex parte Young, 209 U.S. 123, 163 (1908). [674] Ibid. 174. The Young case evoked sharp criticism in Congress and led to the enactment of § 266 of the Judicial Code, prohibiting the issuance of injunctions to restrain enforcement of State laws by a single federal judge, providing for a three-judge court in such cases, limiting the effect of temporary injunctions, and expediting appeals in such cases to the Supreme Court. Act of June 18, 1910, 36 Stat. 539; 28 U.S.C.A. § 1253, 2281, 2284. A supplementary act in 1913 (37 Stat. 1013) amended § 266 of the Judicial Code providing for the stay of federal proceedings to enjoin State legislation if a suit has been brought in a State court to enforce the legislation until the State court has determined the issues. Section 266 was amended again in 1925 when the provisions concerning interlocutory injunctions were extended to include permanent injunctions. Act of February 13, 1925, 43 Stat. 938. [675] Prentis _v._ Atlantic Coast Line R. Co., 211 U.S. 210 (1908); Gilchrist _v._ Interborough Rapid Transit Co., 279 U.S. 159 (1929); Grubb _v._ Public Utilities Commission, 281 U.S. 470 (1930); Beal _v._ Missouri Pacific R. Co., 312 U.S. 45 (1941). [676] Phillips _v._ United States, 312 U.S. 246, 249 (1941), citing and quoting Ex parte Collins, 277 U.S. 565, 577 (1928). [677] 312 U.S. 246, 251, citing Moore _v._ Fidelity & Deposit Co., 272 U.S. 317 (1926); Smith _v._ Wilson, 273 U.S. 388 (1927); Oklahoma Gas Co. _v._ Packing Co., 292 U.S. 386 (1934); Ex parte Williams, 277 U.S. 267 (1928); Ex parte Public National Bank, 278 U.S. 101 (1928); Rorick _v._ Commissioners, 307 U.S. 208 (1939); Ex parte Bransford, 310 U.S. 354 (1940). [678] Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345, 354 (1930). [679] 21 How. 506 (1859). [680] Ibid. 514-516, 523-524, 526. [681] United States _v._ Tarble (Tarble's Case), 13 Wall. 397, 407-408 (1872). [682] 1 Stat. 81, § 14. [683] 4 Stat. 634, § 7 (1833). [684] 5 Stat. 539 (1942). [685] 14 Stat. 385 (1867). [686] Rev. Stat., § 753; 28 U.S.C.A. § 2242. [687] 100 U.S. 257 (1880). [688] In re Neagle, 135 U.S. 1 (1890). [689] In re Loney, 134 U.S. 372 (1890). [690] Boske _v._ Comingore, 177 U.S. 459 (1900). [691] Ohio _v._ Thomas, 173 U.S. 276 (1899). [692] 209 U.S. 205 (1908). [693] 117 U.S. 241 (1886). [694] Ibid. 251. [695] Harkrader _v._ Wadley, 172 U.S. 148 (1898); Whitten _v._ Tomlinson, 160 U.S. 231 (1895). [696] Frank _v._ Mangum, 237 U.S. 309 (1915); Tinsley _v._ Anderson, 171 U.S. 101 (1898). [697] Maryland _v._ Soper, 270 U.S. 9, 36, 44 (1926). In addition to the cases cited above _see_ Ex parte Fonda, 117 U.S. 516 (1886); Duncan _v._ McCall, 139 U.S. 449 (1891); New York _v._ Eno, 155. U.S. 89 (1894); Baker _v._ Grice, 169 U.S. 284 (1898); Matter of Moran, 203 U.S. 96 (1906); Mooney _v._ Holohan, 294 U.S. 103 (1935); Ex parte Hawk, 321 U.S. 114 (1944). Compare, however, Wade _v._ Mayo, 334 U.S. 672 (1948), where it was held that failure of the petitioner to appeal to the Supreme Court from a conviction sustained by the Florida Supreme Court did not bar relief by _habeas corpus_ because of denial of counsel. In Ex parte Hawk, 321 U.S. 114 (1944), the rule pertaining to the exhaustion of remedies was applied so as to include a certiorari petition in the Supreme Court. In adopting a new United States Code in 1948 (62 Stat. 967) Congress added a new section to existing _habeas corpus_ provisions which stipulated that no application for a writ of _habeas corpus_ by a person in custody pursuant to a judgment of a State court shall be granted until the applicant has exhausted the remedies available in the courts of the States and that an applicant shall not be deemed to have exhausted State remedies if he has the right under State law to raise, by any available procedure, the question presented, 28 U.S.C.A. § 2254. This section codified Ex parte Hawk. [698] 334 U.S. 672 (1948). [699] 258 U.S. 254 (1922). [700] Ibid. 259. [701] Houston _v._ Moore, 5 Wheat. 1, 27-28 (1820). [702] Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine and Spirits Act, 1 Stat. 376 (1794). [703] 1 Stat. 302 (1793). [704] 1 Stat. 414 (1795). [705] 1 Stat. 577. [706] 1 Stat. 727 (1799). [707] 2 Stat. 453 (1808); 2 Stat. 473 (1808); 2 Stat. 499 (1808); 2 Stat. 506 (1809); 2 Stat. 528 (1809); 2 Stat. 550 (1809); 2 Stat. 605 (1810); 2 Stat. 707 (1812); 3 Stat. 88 (1813). [708] 3 Stat. 244. For the trial of federal offenses in State courts _see_ Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545 (1925). [709] Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545, 577-581 (1925). [710] Justice Story dissenting in Houston _v._ Moore, 5 Wheat. 1, 69 (1820); Justice McLean dissenting in United States _v._ Bailey, 9 Pet. 238, 259 (1835). [711] 16 Pet. 539, 615 (1842). [712] Robertson _v._ Baldwin, 165 U.S. 275 (1897); Dallemagne _v._ Moisan, 197 U.S. 169 (1905). _See also_ Teal _v._ Felton, 12 How. 284 (1852); Claflin _v._ Houseman, 93 U.S. 130 (1876). This last case proceeds on the express assumption that the State and National Governments are part of a single nation and implicity repudiates the idea of separate sovereignties, as set out in Prigg _v._ Pennsylvania, 16 Pet. 539 (1842). [713] Mitchell Wendell, Relations between the Federal and State Courts (New York, 1949), 278. [714] 35 Stat. 65 (1908). [715] Hoxie _v._ New York, N.H. & H.R. Co., 82 Conn. 352 (1909). [716] 223 U.S. 1, 59 (1912). [717] Brown _v._ Western Ry. Co. of Alabama, 338 U.S. 294 (1949). _See_ Justice Frankfurter's dissent in this case for a summary of rulings to the contrary. [718] 330 U.S. 386 (1947). [719] 56 Stat. 23, 33-34, 205 (c). [720] 330 U.S. 386, 389. [721] Ibid. 390. Justice Black refers to Prigg _v._ Pennsylvania, 16 Pet. 539, 615 (1842), and other cases as broadly questioning the power and duty of State courts to enforce federal criminal law. The cases primarily relied upon in the opinion are Claflin _v._ Houseman, 93 U.S. 130 (1876); Mondou _v._ New York, N.H. & H.R. Co. (Second Employers' Liability Cases), 223 U.S. 1 (1912). [722] _Cf._ Doyle _v._ Continental Ins. Co., 94 U.S. 535 (1877), (which upheld a similar Wisconsin statute), and Security Mut. L. Ins. Co. _v._ Prewitt, 202 U.S. 246 (1906); with Home Ins. Co. _v._ Morse, 20 Wall. 445 (1874); Barron _v._ Burnside, 121 U.S. 186 (1887); Southern P. Co. _v._ Denton, 146 U.S. 202 (1892); Gerling _v._ Baltimore & O.R. Co., 151 U.S. 673, 684 (1894); Barrow S.S. Co. _v._ Kane, 170 U.S. 100, 111 (1898); Herndon _v._ Chicago, R.I. & P.R. Co., 218 U.S. 135 (1910); Harrison _v._ St. Louis & S.F.R. Co., 232 U.S. 318 (1914); Donald _v._ Philadelphia & R. Coal & I. Co., 241 U.S. 329 (1916). [723] 257 U.S. 529, 532 (1922). [724] 25 Edward III, Stat. 5, Ch. 2. _See also_ Story's Commentaries On The Constitution Of The United States, Vol. 2, 529-540, (5th ed.). [725] 4 Cr. 75 (1807). [726] Ibid. 75, 126. [727] Ibid. 126. [728] Ibid. 127. [729] United States _v._ Burr, 4 Cr. 470, Appx. (1807). [730] There have been a number of lower court cases in some of which convictions were obtained. As a result of the Whiskey Rebellion convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795); United States _v._ Mitchell, 26 Fed. Cas. No. 15,788 (1795). After conviction, the defendants were pardoned. _See also_ for the same ruling in a different situation the Case of Fries, 9 Fed. Cas. Nos. 5,126 (1799); 5,127 (1800). The defendant was again pardoned after conviction. About a half century later participation in forcible resistance to the Fugitive Slave Law was held not to be a constructive levying of war. United States _v._ Hanway, 26 Fed. Cas. No. 15,299 (1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott _v._ United States, 20 Wall. 459 (1875). _See also_ Hanauer _v._ Doane, 12 Wall. 342 (1871); Thorington _v._ Smith, 8 Wall. 1 (1869); Young _v._ United States, 97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases are not, therefore, an interpretation of the Constitution. [731] 325 U.S. 1 (1945). [732] 89 Law. Ed. 1443-1444 (Argument of Counsel). [733] 325 U.S. 35. [734] Ibid. 34-35. Earlier Justice Jackson had declared that this phase of treason consists of two elements: "adherence to the enemy; and rendering him aid and comfort." A citizen, it was said, may take actions "which do aid and comfort the enemy--* * *--but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Ibid. 29. Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1696 (7 and 8 Wm. III, C. 3). [735] 330 U.S. 631 (1947). [736] Ibid. 635-636. [737] 330 U.S. 631, 645-646. Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: "But the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." Ibid. 649. The following summary, taken from the Appendix to the Government's brief in Cramer _v._ United States, 325 U.S. 1 (1945), and incorporated as note 38 in the Court's opinion (pp. 25-26), contains all the cases in which, prior to Kawakita _v._ United States, which is dealt with immediately below, construction of the treason clause has been involved except grand jury charges and cases to which interpretation of the clause was incidental: Whiskey Rebellion cases: United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795), United States _v._ Mitchell, 26 Fed. Cas. No. 15,788 (1795) (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Fries's Case, 9 Fed. Cas. Nos. 5,126, 5,127 (1799, 1800) (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cr. 75 (1807); United States _v._ Burr, 25 Fed. Cas. Nos. 14,692a (1806); 14,693 (1807) (conspiracy to levy war held not an overt act of levying war). United States _v._ Lee, 26 Fed. Cas. No. 15,584 (1814) (sale of provisions a sufficient overt act; acquittal). United States _v._ Hodges, 26 Fed. Cas No. 15,374 (1815) (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). United States _v._ Hoxie, 26 Fed. Cas. No. 15,407 (1808) (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States _v._ Pryor, 27 Fed. Cas. No. 16,096 (1814) (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). United States _v._ Hanway, 26 Fed. Cas. No. 15,299 (1851) (forcible resistance to execution of Fugitive Slave Law no levying of war). United States _v._ Greiner, 26 Fed. Cas. No. 15,262 (1861) (participation as members of state militia company in seizure of a federal fort is a levying of war). United States _v._ Greathouse, 26 Fed. Cas. No. 15,254 (1863) (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer _v._ Doane, 12 Wall. 342 (1871); Carlisle _v._ United States, 16 Wall. 147 (1873); Sprott _v._ United States, 20 Wall. 459, 371[Transcriber's Note: "371" is incorrect--case occupies 20 Wall. 459-474 (1874)] (1874); United States _v._ Athens Armory, 24 Fed. Cas. No. 14,473 (1868) (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). United States _v._ Cathcart and United States _v._ Parmenter, 25 Fed. Cas. No. 14,756 (1864). Chenoweth's Case (unreported: _see_ Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at 888 (1863)) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed. Cas. No. 3621a (1867-71) (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); _see_ 2 Warren, Supreme Court in United States History (1934 ed.) 485-487; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States _v._ Magtibay, 2 Phil. 703 (1903), United States _v._ De Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States _v._ Lagnason, 3 Phil. 472 (1904) (armed effort to overthrow the government is levying war). United States _v._ Fricke, 259 F. 673 (1919) (acts "indifferent" on their face held sufficient overt acts). United States _v._ Robinson, 259 F. 685 (1919) (dictum, acts harmless on their face are insufficient overt acts). United States _v._ Werner, 247 F. 708 (1918), affirmed in 251 U.S. 466 (1920) (act indifferent on its face may be sufficient overt act). United States _v._ Haupt, 136 F. (2d) 661 (1943) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts). Stephan _v._ United States, 133 F. (2d) 87 (1943) (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States _v._ Cramer, 137 F. (2d) 888 (1943). [738] 343 U.S. 717. [739] Ibid. 732. For citations on the subject of dual nationality, _see_ ibid. 723 note 2. Three dissenters asserted that Kawakita's conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. "As a matter of law, he expatriated himself as well as that can be done." Ibid. 746. [740] Ex parte Bollman, 4 Cr. 75 (1807). [741] United States _v._ Burr, 4 Cr. 470 (1807). [742] Cramer _v._ United States, 325 U.S. 1 (1945). [743] Haupt _v._ United States, 330 U.S. 631 (1947). [744] Ex parte Bollman, 4 Cr. 75, 126, 127 (1807). [745] 12 Stat. 589. This act incidentally did not designate rebellion as treason. [746] Miller _v._ United States, 11 Wall. 268, 305 (1871). [747] Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876). [748] Lord de la Warre's Case, 11 Coke, 1 a. A number of cases dealt with the effect of a full pardon by the President of owners of property confiscated under this act. They held that a full pardon relieved the owner of forfeiture as far as the Government was concerned, but did not divide the interest acquired by third persons from the Government during the lifetime of the offender. Illinois Central R. Co. _v._ Bosworth, 133 U.S. 92, 101 (1890); Knote _v._ United States, 95 U.S. 149 (1877); Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876); Armstrong's Foundry _v._ United States, 6 Wall. 766, 769 (1868). There is no direct ruling on the question of whether only citizens can commit treason. In Carlisle _v._ United States, 16 Wall. 147, 154-155 (1873), the Court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native-born citizen in the absence of a treaty stipulation to the contrary. This case involved the attempt of certain British subjects to recover claims for property seized under the Captured and Abandoned Property Act, 12 Stat. 820 (1863) which provided for the recovery of property or its value in suits in the Court of Claims by persons who had not rendered aid and comfort to the enemy. Earlier in United States _v._ Wiltberger, 5 Wheat. 76, 97 (1820), which involved a conviction for manslaughter under an act punishing manslaughter and treason on the high seas, Chief Justice Marshall going beyond the necessities of the case stated that treason "is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary." ARTICLE IV STATES' RELATIONS Section 1. Full faith and credit Page Sources and effect of this provision 651 Private international law 651 Importance of the constitutional provision 652 Acts of 1790 and 1804 652 Force and effect of same 652 Judgments: Primary concern of the provision 653 Two principal classes of judgments 653 Effect to be given in forum State 653 Jurisdictional prerequisite 657 Judgments in personam 658 Jurisdictional question 659 Service on foreign corporations 660 Service on out-of-State owners of motor vehicles 660 Judgments in rem 661 Thompson _v._ Whitman 661 Divorce decrees 662 Jurisdictional prerequisite: Domicile 662 Haddock _v._ Haddock 662 Emergence of the domicile question 663 Williams I and II 664 Cases involving claims for alimony or property arising in forum State 666 Recent cases 668 State of the law today: quaere 670 Decrees awarding alimony, custody of children 670 Collateral attack by child 671 Decrees of other types 672 Probate decrees 672 Adoption decrees 673 Garnishment decrees 673 Fraud as a defense to suits on foreign judgments 674 Penal judgments: types entitled to recognition 674 Recognition of rights based upon Constitutions, statutes, common law 675 The early rule 675 Development of the modern rule 675 Transitory actions: Death statutes 676 Actions upon contract: When governed by law of place of making 677 Stockholder-corporation relationship 677 Fraternal benefit society--member relationship 678 Insurance company, building and loan association--contractual relationships 679 Workmen's compensation statutes 681 Development of section to date and possibilities 682 Evaluation of results 682 Scope of powers of Congress under section 683 Full faith and credit in the federal courts 684 Judgments of foreign States 685 Section 2. Interstate comity 686 Clause 1. The comity clause 686 Sources 686 Theories as to its purpose 686 How implemented 688 "Citizens of each State" 688 Corporations 688 "All privileges and immunities of citizens in the several States" 689 Discrimination in private rights 691 Access to courts 691 Taxation 692 Clause 2. Fugitives from justice 693 Duty to surrender 693 "Fugitive from justice" 694 Procedure of removal 695 Trial of fugitive after removal 695 Clause 3. Fugitives from labor 696 Section 3. New States and government of territory, etc. 697 Clause 1. Admission of States 697 Doctrine of equality of the States 697 Earlier scope of the doctrine 698 Citizenship of inhabitants 699 Judicial proceedings 699 Property rights; United States _v._ Texas 700 Rights conveyed to private persons before admission of State 700 Clause 2. Property and territory; regulatory powers of Congress 701 Property of the United States 701 Methods of disposing 701 Public lands 701 Power of the States 702 Power of Congress over territories 703 Section 4. Obligations of United States to the States 704 Republican form of government 704 Protection against domestic violence 704 Decline in importance of this guaranty 704 STATE'S RELATIONS Article IV Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Sources and Effect of This Provision PRIVATE INTERNATIONAL LAW The historical background of the above section is furnished by that branch of private law which is variously termed "Private International Law," "Conflict of Laws," "Comity." This comprises a body of rules, based largely on the writings of jurists and judicial decisions, in accordance with which the courts of one country or "jurisdiction" will ordinarily, in the absence of a local policy to the contrary, extend recognition and enforcement to rights claimed by individuals by virtue of the laws or judicial decisions of another country or "jurisdiction." Most frequently applied examples of these rules include the following: the rule that a marriage which is good in the country where performed (_lex loci_) is good elsewhere; likewise the rule that contracts are to be interpreted in accordance with the laws of the country where entered into (_lex loci contractus_) unless the parties clearly intended otherwise; also the rule that immovables may be disposed of only in accordance with the law of the country where situated (_lex rei sitae_);[1] also the converse rule that chattels adhere to the person of their owner and hence are disposable by him, even when located elsewhere, in accordance with the law of his domicile (_lex domicilii_); also the rule that regardless of where the cause arose, the courts of any country where personal service can be got upon the defendant will take jurisdiction of certain types of personal actions, hence termed "transitory," and accord such remedy as the _lex fori_ affords. Still other rules, of first importance in the present connection, determine the recognition which the judgments of the courts of one country shall receive from those of another country. IMPORTANCE OF THE CONSTITUTIONAL PROVISION So even had the States of the Union remained in a mutual relationship of entire independence, still private claims originating in one would often have been assured recognition and enforcement in the others. The framers of the Constitution felt, however, that the rules of private international law should not be left as among the States altogether on a basis of comity, and hence subject always to the overruling local policy of the _lex fori_, but ought to be in some measure at least placed on the higher plane of constitutional obligation. In fulfillment of this intent the section now under consideration was inserted, and Congress was empowered to enact supplementary and enforcing legislation. THE ACTS OF 1790 AND 1804 Congressional legislation under the full faith and credit clause, so far as it is pertinent to adjudication thereunder, is today embraced in section 687 of Title 28 of the United States Code, which consolidates the acts of May 26, 1790 and of March 27, 1804.[2] "The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." FORCE AND EFFECT OF SAME Several points clearly emerge: (1) the word "effect" is construed as referring to the effect of the records when authenticated, not to the effect of the authentication; (2) the faith and credit which is required by the rules of private international law is superseded as to "the records and judicial proceedings" of each State by a rule of complete obligation; as to these the local policy of the forum State can validly have no application. On the other hand, (3) while the act of 1790 lays down a rule for the authentication of the statutes of the several States, it says nothing regarding their extraterritorial operation; and (4) it is similarly silent regarding the common law of the several States. These silences, however, have been repealed, in part, by judicial decision. (_See_ pp. 675-682.) Judgments: The Primary Concern of the Provision TWO PRINCIPAL CLASSES OF JUDGMENTS Article IV, section 1, has had its principal operation in relation to judgments. The cases fall into two groups: First, those in which the judgment involved was offered as a basis of proceedings for its own enforcement outside the State where rendered, as for example, when an action for debt is brought in the courts of State B on a judgment for money damages rendered in State A; secondly, those in which the judgment involved was offered, in conformance with the principle of _res judicata_, in defense in a new or "collateral" proceeding growing out of the same facts as the original suit, as for example, when a decree of divorce granted in State A is offered as barring a suit for divorce by the other party to the marriage in the courts of State B. EFFECT TO BE GIVEN IN FORUM STATE The English courts and the different State courts in the United States, while recognizing "foreign judgments _in personam_" which were reducible to money terms as affording a basis for actions in debt, originally accorded them generally only the status of _prima facie_ evidence in support thereof, so that the merits of the original controversy could always be opened. When offered in defense, on the other hand, "foreign judgments _in personam_" were ordinarily treated as conclusive, as between parties, of the issues they purported to determine, provided they had been rendered by a court of competent jurisdiction and were not tainted with fraud. And judgments "_in rem_" rendered under the same conditions were regarded as conclusive upon everybody on the theory that, as stated by Chief Justice Marshall, "it is a proceeding _in rem_, to which all the world are parties."[3] The pioneer case was Mills _v._ Duryee,[4] decided in 1813. In an action brought in the circuit court of the District of Columbia--the equivalent of a State court for this purpose--on a judgment from a New York court, the defendant endeavored to reopen the whole question of the merits of the original case by a plea of "_nil debet_." It was answered in the words of the act of 1790 itself, that such records and proceedings were entitled in each State to the same faith and credit as in the State of origin; and that inasmuch as they were records of a court in the State of origin, and so conclusive of the merits of the case there, they were equally so in the forum State. The Court adopted the latter view, saying that it had not been the intention of the Constitution merely to reenact the common law--that is, the principles of private international law--as to the reception of foreign judgments, but to amplify and fortify these.[5] And in Hampton _v._ McConnell[6] some years later, Chief Justice Marshall went even further, using language which seems to show that he regarded the judgment of a State court as constitutionally entitled to be accorded in the courts of sister States not simply the faith and credit of conclusive evidence, but the validity of a final judgment. When, however, the next important case arose, the Court has come under new influences. This was McElmoyle _v._ Cohen,[7] decided in 1839, in which the issue was whether a statute of limitations of the State of Georgia, which applied only to judgments obtained in courts other than those of Georgia, could constitutionally bar an action in Georgia on a judgment rendered by a court of record of South Carolina. Declining to follow Marshall's lead in Hampton _v._ McConnell, the Court held that the Constitution was not intended "materially to interfere with the essential attributes of the _lex fori_"; that the act of Congress only established a rule of evidence, of conclusive evidence to be sure, but still of evidence only; and that it was necessary, in order to carry into effect in a State the judgment of a court of a sister State, to institute a fresh action in the court of the former, in strict compliance with its laws; and that consequently, when remedies were sought in support of the rights accruing in another jurisdiction, they were governed by the _lex fori_. In accord with this holding it has been further held that foreign judgments enjoy, not the right of priority or privilege or lien which they have in the State where they are pronounced, but only that which the _lex fori_ gives them by its own laws, in their character of foreign judgments.[8] A judgment of a State court, in a cause within its jurisdiction, and against a defendant lawfully summoned, or against lawfully attached property of an absent defendant, is entitled to as much force and effect against the person summoned or the property attached, when the question is presented for decision in a court in another State, as it has in the State in which it was rendered.[9] A judgment enforceable in the State where rendered must be given effect in the other State, although the modes of procedure to enforce its collection may not be the same in both States.[10] If the court has acquired jurisdiction, the judgment is entitled to full faith and credit though the court may not be able to enforce it by execution in the State in which it was rendered, as where the defendant left the State after service upon him and took all his property with him. While the want of power to enforce a judgment or decree may afford a reason against entertaining jurisdiction, it has nothing to do with the validity of a judgment or decree when made.[11] In the words of the Court in a recent case: "A cause of action on a judgment is different from that upon which the judgment was entered. In a suit upon a money judgment for a civil cause of action, the validity of the claim upon which it was founded is not open to inquiry, whatever its genesis. Regardless of the nature of the right which gave rise to it, the judgment is an obligation to pay money in the nature of a debt upon a specialty. Recovery upon it can be resisted only on the grounds that the court which rendered it was without jurisdiction, * * * or that it has ceased to be obligatory because of payment or other discharge * * * or that it is a cause of action for which the State of the forum has not provided a court * * *"[12] On the other hand, the clause is not violated when a judgment is disregarded because it is not conclusive of the issues before a court of the forum. Conversely, no greater effect can be given than is given in the State where rendered. Thus an interlocutory judgment may not be given the effect of a final judgment.[13] Likewise when a federal court does not attempt to foreclose the State court from hearing all matters of personal defense which landowners might plead, a State court may refuse to accept the former's judgment as determinative of the landowners' liabilities.[14] Similarly, though a confession of judgment upon a note, with a warrant of attorney annexed, in favor of the holder, is in conformity with a State law and usage as declared by the highest court of the State in which the judgment is rendered, the judgment may be collaterally impeached upon the ground that the party in whose behalf it was rendered was not in fact the holder.[15] But a consent decree, which under the law of the State has the same force and effect as a decree _in invitum_, must be given the same effect in the courts of another State.[16] One result produced by not following Hampton _v._ McConnell is that even nowadays the Court is sometimes confronted with the contention that a State need not provide a forum for some particular type of judgment from a sister State, a claim which it has by no means met with clear-cut principles. Thus in one case it held that a New York statute forbidding foreign corporations doing a domestic business to sue on causes originating outside the State was constitutionally applicable to prevent such a corporation from suing on a judgment obtained in a sister State.[17] But in a later case it ruled that a Mississippi statute forbidding contracts in cotton futures could not validly close the courts of the State to an action on a judgment obtained in a sister State on such a contract, although the contract in question had been entered into in the forum State and between its citizens.[18] Following the later rather than the earlier precedent, subsequent cases[19] have held: (1) that a State may adopt such system of courts and form of remedy as it sees fit, but cannot, under the guise of merely affecting the remedy, deny enforcement of claims otherwise within the protection of the full faith and credit clause when its courts have general jurisdiction of the subject matter and the parties;[20] (2) that, accordingly, a forum State, which has a shorter period of limitations than the State in which a judgment was granted and later reviewed, erred in concluding that, whatever the effect of the revivor under the law of the State of origin, it could refuse enforcement of the revived judgment;[21] (3) that the courts of one State have no jurisdiction to enjoin the enforcement of judgments at law obtained in another State, when the same reasons assigned for granting the restraining order were passed upon on a motion for new trial in the action at law and the motion denied;[22] (4) that the constitutional mandate requires credit to be given to a money judgment rendered in a civil cause of action in another State, even though the forum State would have been under no duty to entertain the suit on which the judgment was founded, inasmuch as a State cannot, by the adoption of a particular rule of liability or of procedure, exclude from its courts a suit on a judgment;[23] and (5) that similarly, tort claimants in State A, who obtain a judgment against a foreign insurance company, notwithstanding that, prior to judgment, domiciliary State B appointed a liquidator for the company, vested company assets in him, and ordered suits against the company stayed, are entitled to have such judgment recognized in State B for purposes of determining the amount of their claim, although not for determination of what priority, if any, their claim should have.[24] Moreover, there is no apparent reason why Congress, acting on the implications of Marshall's words in Hampton _v._ McConnell, should not clothe extrastate judgments of any particular type with the full status of domestic judgments of the same type in the several States.[25] The Jurisdictional Prerequisite The second great class of cases to arise under the full faith and credit clause comprises those raising the question whether a judgment for which extrastate operation was being sought, either as a basis of an action or as a defense in one, has been rendered with jurisdiction. Records and proceedings of courts wanting jurisdiction are not entitled to credit.[26] The jurisdictional question arises both in connection with judgments _in personam_ against nonresident defendants upon whom it is alleged personal service was not obtained in the State of origin of the judgment, and in relation to judgments _in rem_ against property or a status alleged not to have been within the jurisdiction of the Court which handed down the original decree.[27] JUDGMENTS _IN PERSONAM_ The pioneer case is that of D'Arcy _v._ Ketchum,[28] decided in 1850. The question presented was whether a judgment rendered by a New York court under a statute which provided that, when joint debtors were sued and one of them was brought into court on a process, a judgment in favor of the plaintiff would entitle him to execute against all, and so must be accorded full faith and credit in Louisiana when offered as the basis of an action in debt against a resident of that State who had not been served by process in the New York action. Pressed with the argument that by "the immutable principles of justice" no man's rights should be impaired without his being given an opportunity to defend them, the Court ruled that, interpreted in the light of the principles of "international law and comity" as they existed in 1790, the act of Congress of that year did not reach the case.[29] The truth is that the decision virtually amended the act, for had the Louisiana defendant ventured to New York, he could, as the Constitution of the United States then stood, have been subjected to the judgment of the same extent as the New York defendant who had been personally served. Subsequently, this disparity between the operation of a personal judgment in the home State and a sister State has been eliminated, thanks to the adoption of the Fourteenth Amendment. In divorce cases, however, it still persists in some measure. (_See_ pp. 662-670.) In Pennoyer _v._ Neff,[30] decided in 1878, and so under the amendment, the Court held that a judgment given in a case in which the State court had endeavored to acquire jurisdiction of a nonresident defendant by an attachment upon property of his within the State and constructive notice to him, had not been rendered with jurisdiction and hence could not afford the basis of an action in the court of another State against such defendant, although it bound him so far as the property attached was concerned, on account of the inherent right of a State to assist its own citizens in obtaining satisfaction of their just claims. Nor would such a judgment, the Court further indicated, be due process of law to any greater extent in the State where rendered. In the words of a later case, "an ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the State as outside of it."[31] THE JURISDICTIONAL QUESTION In short, when the subject matter of a suit is merely the determination of the defendant's liability, it is necessary that it should appear from the record that the defendant had been brought within the jurisdiction of the court by personal service of process, or his voluntary appearance, or that he had in some manner authorized the proceeding.[32] The claim that a judgment was "not responsive to the pleadings" raises the jurisdictional question;[33] but the fact that a nonresident defendant was only temporarily in the State when he was served in the original action does not vitiate the judgment rendered as the basis of an action in his home State.[34] Also, a judgment rendered in the State of his domicile against a defendant who, pursuant to the statute thereof providing for the service of process on absent defendants, was personally served in another State is entitled to full faith and credit.[35] Also, when the matter of fact or law on which jurisdiction depends was not litigated in the original suit, it is a matter to be adjudicated in the suit founded upon the judgment.[36] Inasmuch as the principle of _res judicata_ applies only to proceedings between the same parties and privies, the plea by defendant in an action based on a judgment that he was no party or privy to the original action raises the question of jurisdiction; and while a judgment against a corporation in one State may validly bind a stockholder in another State to the extent of the par value of his holdings,[37] an administrator acting under a grant of administration in one State stands in no sort of relation of priority to an administrator of the same estate in another State.[38] But where a judgment of dismissal was entered in a federal court in an action against one of two joint tortfeasors, in a State in which such a judgment would constitute an estoppel in another action in the same State against the other tort-feasor, such judgment is not entitled to full faith and credit in an action brought against the other tortfeasor in another State.[39] SERVICE ON FOREIGN CORPORATIONS In 1856 the Court decided Lafayette Insurance Co. _v._ French et al.,[40] a pioneer case in its general class. Here it was held that "where a corporation chartered by the State of Indiana was allowed by a law of Ohio to transact business in the latter State upon the condition that service of process upon the agent of the corporation should be considered as service upon the corporation itself, a judgment obtained against the corporation by means of such process" ought to receive in Indiana the same faith and credit as it was entitled to in Ohio.[41] Later cases establish under both the Fourteenth Amendment and article IV, section 1, that the cause of action must have arisen within the State obtaining service in this way,[42] that service on an officer of a corporation, not its resident agent and not present in the State in an official capacity, will not confer jurisdiction over the corporation;[43] that the question whether the corporation was actually "doing business" in the State may be raised.[44] On the other hand, the fact that the business was interstate is no objection.[45] SERVICE ON OUT-OF-STATE OWNERS OF MOTOR VEHICLES By analogy to the above cases, it has been held that a State may require nonresident owners of motor vehicles to designate an official within the State as an agent upon whom process may be served in any legal proceedings growing out of their operation of a motor vehicle within the State;[46] and while these cases arose under the Fourteenth Amendment alone, unquestionably a judgment validly obtained upon this species of service could be enforced upon the owner of a car through the courts of his home State. JUDGMENTS _IN REM_ In sustaining the challenge to jurisdiction in cases involving judgments _in personam_, the Court was in the main making only a somewhat more extended application of recognized principles. In order to sustain the same kind of challenge in cases involving judgments _in rem_ it has had to make law outright. The leading case is Thompson _v._ Whitman,[47] decided in 1874. Thompson, sheriff of Monmouth County, New Jersey, acting under a New Jersey statute, had seized a sloop belonging to Whitman, and by a proceeding _in rem_ had obtained its condemnation and forfeiture in a local court. Later, Whitman, a citizen of New York, brought an action for trespass against Thompson in the United States Circuit Court for the Southern District of New York, and Thompson answered by producing a record of the proceedings before the New Jersey tribunal. Whitman thereupon set up the contention that the New Jersey court had acted without jurisdiction inasmuch as the sloop which was the subject matter of the proceedings had been seized outside the county to which, by the statute under which it had acted, its jurisdiction was confined. Thompson _v._ Whitman As previously explained, the plea of lack of privity cannot be set up in defense in a sister State against a judgment _in rem_. It is, on the other hand, required of a proceeding _in rem_ that the _res_ be within the court's jurisdiction, and this, it was urged, had not been the case in Thompson _v._ Whitman. Could, then, the Court consider this challenge with respect to a judgment which was offered not as the basis for an action for enforcement through the courts of a sister State, but merely as a defense in a collateral action? As the law stood in 1873, it apparently could not.[48] All difficulties, nevertheless, to its consideration of the challenge to jurisdiction in the case were brushed aside by the Court. Whenever, it said, the record of a judgment rendered in a State court is offered "in evidence" by either of the parties to an action in another State, it may be contradicted as to the facts necessary to sustain the former court's jurisdiction; "and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding the claim that they did exist."[49] Divorce Decrees THE JURISDICTIONAL PREREQUISITE: DOMICILE This however, was only the beginning of the court's lawmaking in cases _in rem_. The most important class of such cases is that in which the respondent to a suit for divorce offers in defense an earlier decree from the courts of a sister State. By the almost universally accepted view prior to 1906 a proceeding in divorce was one against the marriage status, i.e., _in rem_, and hence might be validly brought by either party in any State where he or she was _bona fide_ domiciled;[50] and, conversely, when the plaintiff did not have a _bona fide_ domicile in the State, a court could not render a decree binding in other States even if the nonresident defendant entered a personal appearance.[51] But in 1906 the Court discovered, by a vote of five-to-four, a situation in which a divorce proceeding is one _in personam_. Haddock _v._ Haddock The case referred to is Haddock _v._ Haddock,[52] while the earlier rule is illustrated by Atherton _v._ Atherton,[53] decided five years previously. In the latter it was held, in the former denied, that a divorce granted a husband without personal service upon the wife, who at the time was residing in another State, was entitled to recognition under the full faith and credit clause and the acts of Congress; the difference between the cases consisting solely in the fact that in the Atherton case the husband had driven the wife from their joint home by his conduct, while in the Haddock case he had deserted her. The Court which granted the divorce in Atherton _v._ Atherton was held to have had jurisdiction of the marriage status, with the result that the proceeding was one _in rem_ and hence required only service by publication upon the respondent. Haddock's suit, on the contrary, was held to be as to the wife _in personam_, and so to require personal service upon her, or her voluntary appearance, neither of which had been had; although, notwithstanding this, the decree in the latter case was held to be valid as to the State where obtained on account of the State's inherent power to determine the status of its own citizens. The upshot was a situation in which a man and a woman, when both were in Connecticut, were divorced; when both were in New York, were married; and when the one was in Connecticut and the other in New York, the former was divorced and the latter married. In Atherton _v._ Atherton the Court had earlier acknowledged that "a husband without a wife, or a wife without a husband, is unknown to the law." EMERGENCE OF THE DOMICILE QUESTION The practical difficulties and distresses likely to result from such anomalies were pointed out by critics of the decision at the time. In point of fact, they have been largely avoided, because most of the State courts have continued to give judicial recognition and full faith and credit to one another's divorce proceedings on the basis of the older idea that a divorce proceeding is one _in rem_, and that if the applicant is _bona fide_ domiciled in the State the court has jurisdiction in this respect. Moreover, until the second of the Williams _v._ North Carolina cases[54] was decided in 1945, there had not been manifested the slightest disposition to challenge judicially the power of the States to determine what shall constitute domicile for divorce purposes. Shortly prior thereto, in 1938, the Court in Davis _v._ Davis[55] rejected contentions adverse to the validity of a Virginia decree of which enforcement was sought in the District of Columbia. In this case, a husband, after having obtained in the District a decree of separation subject to payment of alimony, established years later a residence in Virginia, and sued there for a divorce. Personally served in the District, where she continued to reside, the wife filed a plea denying that her husband was a resident of Virginia and averred that he was guilty of a fraud on the court in seeking to establish a residence for purposes of jurisdiction. In ruling that the Virginia decree, granting to the husband an absolute divorce minus any alimony payment, was enforceable in the District, the Court stated that in view of the wife's failure, while in Virginia litigating her husband's status to sue, to answer the husband's charges of wilful desertion, it would be unreasonable to hold that the husband's domicile in Virginia was not sufficient to entitle him to a divorce effective in the District. The finding of the Virginia court on domicile and jurisdiction was declared to bind the wife. Davis _v._ Davis is distinguishable from the Williams _v._ North Carolina decisions in that in the former, determination of the jurisdictional prerequisite of domicile was made in a contested proceeding, while in the Williams cases it was not. Williams I and II In the Williams I and Williams II cases, the husband of one marriage and the wife of another left North Carolina, obtained six-week divorce decrees in Nevada, married there, and resumed their residence in North Carolina where both previously had been married and domiciled. Prosecuted for bigamy, the defendants relied upon their Nevada decrees; and won the preliminary round of this litigation; that is, Williams I,[56] when a majority of the justices, overruling Haddock _v._ Haddock, declared that in this case, the Court must assume that the petitioners for divorce had a _bona fide_ domicile in Nevada, and not that their Nevada domicile was a sham. "* * * each State, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent. There is no constitutional barrier if the form and nature of substituted service meet the requirements of due process." Accordingly, a decree granted by Nevada to one, who, it is assumed, is at the time _bona fide_ domiciled therein, is binding upon the courts of other States, including North Carolina in which the marriage was performed and where the other party to the marriage is still domiciled when the divorce was decreed. In view of its assumptions, which it justified on the basis of an inadequate record, the Court did not here pass upon the question whether North Carolina had the power to refuse full faith and credit to a Nevada decree because it was based on residence rather than domicile; or because, contrary to the findings of the Nevada court, North Carolina found that no _bona fide_ domicile had been acquired in Nevada.[57] Presaging what ruling the Court would make when it did get around to passing upon the latter question, Justice Jackson, dissenting in Williams I, protested that "this decision repeals the divorce laws of all the States and substitutes the law of Nevada as to all marriages one of the parties to which can afford a short trip there. * * * While a State can no doubt set up its own standards of domicile as to its internal concerns, I do not think it can require us to accept and in the name of the Constitution impose them on other States. * * * The effect of the Court's decision today--that we must give extraterritorial effect to any judgment that a state honors for its own purposes--is to deprive this Court of control over the operation of the full faith and credit and the due process clauses of the Federal Constitution in cases of contested jurisdiction and to vest it in the first State to pass on the facts necessary to jurisdiction."[58] Notwithstanding that one of the deserted spouses had died since the initial trial and that another had remarried, North Carolina, without calling into question the status of the latter marriage began a new prosecution for bigamy; and when the defendants appealed the conviction resulting therefrom, the Supreme Court, in Williams II,[59] sustained the adjudication of guilt as not denying full faith and credit to the Nevada divorce decree. Reiterating the doctrine that jurisdiction to grant divorce is founded on domicile,[60] a majority of the Court held that a decree of divorce rendered in one State may be collaterally impeached in another by proof that the court which rendered the decree lacked jurisdiction (the parties not having been domiciled therein), even though the record of proceedings in that court purports to show jurisdiction.[61] CASES INVOLVING CLAIMS FOR ALIMONY OR PROPERTY ARISING IN FORUM STATE In Esenwein _v._ Commonwealth,[62] decided on the same day as the second Williams Case, the Supreme Court also sustained a Pennsylvania court in its refusal to recognize an _ex parte_ Nevada decree on the ground that the husband who obtained it never acquired a _bona fide_ domicile in the latter State. In this instance, the husband and wife had separated in Pennsylvania, where the wife was granted a support order; and after two unsuccessful attempts to win a divorce in that State, the husband departed for Nevada. Upon the receipt of a Nevada decree, the husband thereafter established a residence in Ohio, and filed an action in Pennsylvania for total relief from the support order. In a concurring opinion, in which he was joined by Justices Black and Rutledge, Justice Douglas stressed the "basic difference between the problem of marital capacity and the problem of support," and stated that it was "not apparent that the spouse who obtained the decree can defeat an action for maintenance or support in another State by showing that he was domiciled in the State which awarded him the divorce decree," unless the other spouse appeared or was personally served. "The State where the deserted wife is domiciled has a deep concern in the welfare of the family deserted by the head of the household. If he is required to support his former wife, he is not made a bigamist and the offspring of his second marriage are not bastardized." Or as succinctly stated by Justice Rutledge, "the jurisdictional foundation for a decree in one State capable of foreclosing an action for maintenance or support in another may be different from that required to alter the marital status with extraterritorial effect."[63] Three years later, but on this occasion as spokesman for a majority of the Court, Justice Douglas reiterated these views in the case of Estin _v._ Estin.[64] Even though it acknowledged the validity of an _ex parte_ Nevada decree obtained by a husband, New York was held not to have denied full faith and credit to said decree when, subsequently thereto, it granted the wife a judgment for arrears in alimony founded upon a decree of separation previously awarded to her when both she and her husband were domiciled in New York. The Nevada decree, issued to the husband after he had resided there a year and upon constructive notice to the wife in New York who entered no appearance, was held to be effective only to change the marital status of both parties in all States of the Union but ineffective on the issue of alimony. Divorce, in other words, was viewed as being divisible; and Nevada, in the absence of acquiring jurisdiction over the wife, was held incapable of adjudicating the rights of the wife in the prior New York judgment awarding her alimony. Accordingly, the Nevada decree could not prevent New York from applying its own rule of law which, unlike that of Pennsylvania,[65] does permit a support order to survive a divorce decree.[66] Such a result was justified as accommodating the interests of both New York and Nevada in the broken marriage by restricting each State to matters of her dominant concern, the concern of New York being that of protecting the abandoned wife against impoverishment. RECENT CASES Fears registered by the dissenters in the second Williams Case that the stability of all divorces might be undermined thereby and that thereafter the court of each forum State, by its own independent determination of domicile, might refuse recognition of foreign decrees were temporarily set at rest by the holding in Sherrer _v._ Sherrer,[67] wherein Massachusetts, a state of domiciliary origin, was required to accord full faith and credit to a 90-day Florida decree which had been contested by the husband. The latter, upon receiving notice by mail, retained Florida counsel who entered a general appearance and denied all allegations in the complaint, including the wife's residence. At the hearing the husband, though present in person and by counsel, did not offer evidence in rebuttal of the wife's proof of her Florida residence; and when the Florida court ruled that she was a _bona fide_ resident, the husband did not appeal. Inasmuch as the findings of the requisite jurisdictional facts, unlike those in the Second Williams Case, were made in proceedings in which the defendant appeared and participated, the requirements of full faith and credit were held to bar him from collaterally attacking such findings in a suit instituted by him in his home State of Massachusetts, particularly in the absence of proof that the divorce decree was subject to such collateral attack in a Florida court. Having failed to take advantage of the opportunities afforded him by his appearance in the Florida proceeding, the husband was thereafter precluded from re-litigating in another State the issue of his wife's domicile already passed upon by the Florida court. In Coe _v._ Coe,[68] embracing a similar set of facts, the Court applied like reasoning to reach a similar result. Massachusetts again was compelled to recognize the validity of a six-week Nevada decree obtained by a husband who had left Massachusetts after a court of that State had refused him a divorce and had granted his wife separate support. In the Nevada proceeding, the wife appeared personally and by counsel filed a cross-complaint for divorce, admitted the husband's residence, and participated personally in the proceedings. After finding that it had jurisdiction of the plaintiff, defendant, and the subject matter involved, the Nevada court granted the wife a divorce, which was valid, final, and not subject to collateral attack under Nevada law. The husband married again, and on his return to Massachusetts, his ex-wife petitioned the Massachusetts court to adjudge him in contempt for failing to make payments for her separate support under the earlier Massachusetts decree. Inasmuch as there was no intimation that under Massachusetts law a decree of separate support would survive a divorce, recognition of the Nevada decree as valid accordingly necessitated a rejection of the ex-wife's contention. Appearing to revive Williams II, and significant for the social consequences produced by the result decreed therein, is the recent case of Rice _v._ Rice.[69] To determine the widowhood status of the party litigants in relation to inheritance of property of a husband who had deserted his first wife in Connecticut, had obtained an _ex parte_ divorce in Nevada, and after remarriage, had died without ever returning to Connecticut, the first wife, joining the second wife and the administrator of his estate as defendants, petitioned a Connecticut court for a declaratory judgment. After having placed upon the first wife the burden of proving that the decedent had not acquired a _bona fide_ domicile in Nevada, and after giving proper weight to the claims of power by the Nevada court, the Connecticut court concluded that the evidence sustained the contentions of the first wife; and in so doing, it was upheld by the Supreme Court. The cases of Sherrer _v._ Sherrer, 334 U.S. 343 (1948) and Coe _v._ Coe, 334 U.S. 378 (1948), previously discussed, were declared not to be in point; inasmuch as no personal service was made upon the first wife, nor did she in any way participate in the Nevada proceedings. She was not, therefore, precluded from challenging the finding of the Nevada court that the decedent was, at the time of the divorce, domiciled in that State.[70] STATE OF THE LAW TODAY: QUAERE Upon summation one may speculate as to whether the doctrine of divisible divorce, as developed by Justice Douglas in Estin _v._ Estin, 334 U.S. 541 (1948), has not become the prevailing standard for determining the enforceability of foreign divorce decrees. If such be the case, it may be tenable to assert that an _ex parte_ divorce, founded upon acquisition of domicile by one spouse in the State which granted it, is effective to destroy the marital status of both parties in the State of domiciliary origin and probably in all other States and therefore to preclude subsequent prosecutions for bigamy, but not to alter rights as to property, alimony, or custody of children in the State of domiciliary origin of a spouse who was neither served nor personally appeared. DECREES AWARDING ALIMONY, CUSTODY OF CHILDREN Resulting as a by-product of divorce litigation are decrees for the payment of alimony, judgments for accrued and unpaid instalments of alimony, and judicial awards of the custody of children, all of which necessitate application of the full faith and credit clause when extrastate enforcement is sought for them. Thus a judgment in State A for alimony in arrears and payable under a prior judgment of separation which is not by its terms conditional, nor subject by the law of State A to modification or recall, and on which execution was directed to issue, is entitled to recognition in the forum State. Although an obligation for accrued alimony could have been modified or set aside in State A prior to its merger in the judgment, such a judgment, by the law of State A, is not lacking in finality.[71] As to the finality of alimony decrees in general, the Court had previously ruled that where such a decree is rendered, payable in future instalments, the right to such instalments becomes absolute and vested on becoming due, provided no modification of the decree has been made prior to the maturity of the instalments.[72] However, a judicial order requiring the payment of arrearages in alimony, which exceeded the alimony previously decreed, is invalid for want of due process, the respondent having been given no opportunity to contest it.[73] "A judgment obtained in violation of procedural due process," said Chief Justice Stone, "is not entitled to full faith and credit when sued upon in another jurisdiction."[74] A recent example of a custody case was one involving a Florida divorce decree which was granted _ex parte_ to a wife who had left her husband in New York, where he was served by publication. The decree carried with it an award of the exclusive custody of the child, whom the day before the husband had secretly seized and brought back to New York. The Court ruled that the decree was adequately honored by a New York court when, in _habeas corpus_ proceedings, it gave the father rights of visitation and custody of the child during stated periods, and exacted a surety bond of the wife conditioned on her delivery of the child to the father at the proper times,[75] it having not been "shown that the New York court in modifying the Florida decree exceeded the limits permitted under Florida law. There is therefore a failure of proof that the Florida decree received less credit in New York than it had in Florida." COLLATERAL ATTACK BY CHILD A Florida divorce decree was also at the bottom of another recent case in which the daughter of a divorced man by his first wife, and his legatee under his will, sought to attack his divorce in the New York courts, and thereby indirectly his third marriage. The Court held that inasmuch as the attack would not have been permitted in Florida under the doctrine of _res judicata_, it was not permissible under the full faith and credit clause in New York.[76] On the whole, it appears that the principle of _res judicata_ is slowly winning out against the principle of domicile. Decrees of Other Types PROBATE DECREES Many judgments, enforcement of which has given rise to litigation, embrace decrees of courts of probate respecting the distribution of estates. In order that a court have jurisdiction of such a proceeding, the decedent must have been domiciled in the State, and the question whether he was so domiciled at the time of his death may be raised in the court of a sister State.[77] Thus, when a court of State A, in probating a will and issuing letters, in a proceeding to which all distributees were parties, expressly found that the testator's domicile at the time of death was in State A, such adjudication of domicile was held not to bind one subsequently appointed as domiciliary administrator c.t.a. in State B, in which he was liable to be called upon to deal with claims of local creditors and that of the State itself for taxes, he having not been a party to the proceeding in State A. In this situation, it was held, a court of State C, when disposing of local assets claimed by both personal representatives, was free to determine domicile in accordance with the law of State C.[78] Similarly, there is no such relation of privity between an executor appointed in one State and an administrator c.t.a. appointed in another State as will make a decree against the latter binding upon the former.[79] On the other hand, judicial proceedings in one State, under which inheritance taxes have been paid and the administration upon the estate has been closed, are denied full faith and credit by the action of a probate court in another State in assuming jurisdiction and assessing inheritance taxes against the beneficiaries of the estate, when under the law of the former State the order of the probate court barring all creditors who had failed to bring in their demand from any further claim against the executors was binding upon all.[80] What is more important, however, is that the _res_ in such a proceeding, that is, the estate, in order to entitle the judgment to recognition under article IV, section 1, must have been located in the State or legally attached to the person of the decedent. Such a judgment is accordingly valid, generally speaking, to distribute the intangible property of the decedent, though the evidences thereof were actually located elsewhere.[81] This is not so, on the other hand, as to tangibles and realty. In order that the judgment of a probate court distributing these be entitled to recognition under the Constitution, they must have been located in the State; as to tangibles and realty outside the State, the decree of the probate court is entirely at the mercy of the _lex rei sitae_.[82] So, the probate of a will in one State, while conclusive therein, does not displace legal provisions necessary to its validity as a will of real property in other States.[83] ADOPTION DECREES That a statute legitimizing children born out of wedlock does not entitle them by the aid of the full faith and credit clause to share in the property located in another State is not surprising, in view of the general principle--to which, however, there are exceptions (_see_ pp. 675-682)--that statutes do not have extraterritorial operation.[84] For the same reason adoption proceedings in one State are not denied full faith and credit by the law of the sister State which excludes children adopted by proceedings in other States from the right to inherit land therein.[85] GARNISHMENT DECREES A proceeding which combines some of the elements of both an _in rem_ and an _in personam_ action is the proceeding in garnishment cases. Suppose that A owes B and B owes C, and that the two former live in a different State than C. A, while on a brief visit to C's State, is presented with a writ attaching his debt to B and also a summons to appear in court on a named day. The result of the proceedings thus instituted is that a judgment is entered in C's favor against A to the amount of his indebtedness to B. Subsequently A is sued by B in their home State, and offers the judgment, which he has in the meantime paid, in defense. It was argued in behalf of B that A's debt to him had a _situs_ in their home State, and furthermore that C could not have sued B in this same State without formally acquiring a domicile there. Both propositions were, however, rejected by the Court, which held that the judgment in the garnishment proceedings was entitled to full faith and credit as against C's action.[86] FRAUD AS A DEFENSE TO SUITS ON FOREIGN JUDGMENTS As to whether recognition of a State judgment can be refused by the forum State on other than jurisdictional grounds, there are _dicta_ to the effect that judgments, for which extraterritorial operation is demanded under article IV, section I and acts of Congress, are "impeachable for manifest fraud." But unless the fraud affected the jurisdiction of the court, the vast weight of authority is against the proposition. Also it is universally agreed that a judgment may not be impeached for alleged error or irregularity,[87] or as contrary to the public policy of the State where recognition is sought for it under the full faith and credit clause.[88] Previously listed cases indicate, however, that the Court has in fact permitted local policy to determine the merits of a judgment under the pretext of regulating jurisdiction.[89] Thus in one case, Cole _v._ Cunningham,[90] the Court sustained a Massachusetts court in enjoining, in connection with insolvency proceedings instituted in that State, a Massachusetts creditor from continuing in New York courts an action which had been commenced there before the insolvency suit was brought. This was done on the theory that a party within the jurisdiction of a court may be restrained from doing something in another jurisdiction opposed to principles of equity, it having been shown that the creditor was aware of the debtor's embarrassed condition when the New York action was instituted. The injunction unquestionably denied full faith and credit and commanded the assent of only five Justices. PENAL JUDGMENTS: TYPES ENTITLED TO RECOGNITION Finally, the clause has been interpreted in the light of the "incontrovertible maxim" that "the courts of no country execute the penal laws of another."[91] In the leading case of Huntington _v._ Attrill,[92] however, the Court so narrowly defined "penal" in this connection as to make it substantially synonymous with "criminal," and on this basis held a judgment which had been recovered under a State statute making the officers of a corporation who signed and recorded a false certificate of the amount of its capital stock liable for all of its debts, to be entitled under article IV, section 1, to recognition and enforcement in the courts of sister States. Nor, in general, is a judgment for taxes to be denied full faith and credit in State and federal courts merely because it is for taxes.[93] Recognition of Rights Based Upon Constitutions, Statutes, Common Law THE EARLY RULE As to the extrastate protection of rights which have not matured into final judgments, the full faith and credit clause has never abolished the general principle of the dominance of local policy over the rules of comity.[94] This was stated by Justice Nelson in the Dred Scott case, as follows: "No State, * * *, can enact laws to operate beyond its own dominions, * * * Nations, from convenience and comity, * * *, recognizes [sic] and administer the laws of other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her territories, each nation judges for itself; * * *" He added that it was the same with the States of the Union in relation to another. It followed that even though Dred had become a free man in consequence of his having resided in the "free" State of Illinois, he had nevertheless upon his return to Missouri, which had the same power as Illinois to determine its local policy respecting rights acquired extraterritorially, reverted to servitude under the laws and judicial decisions of that State.[95] DEVELOPMENT OF THE MODERN RULE In a case decided in 1887, however, the Court remarked: "Without doubt the constitutional requirement, Art. IV, § I, that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' implies that the public acts of every State shall be given the same effect by the courts of another State that they have by law and usage at home."[96] And this proposition was later held to extend to State constitutional provisions.[97] More recently this doctrine has been stated in a very mitigated form, the Court saying that where statute or policy of the forum State is set up as a defense to a suit brought under the statute of another State or territory, or where a foreign statute is set up as a defense to a suit or proceedings under a local statute, the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause and thus compelling courts of each State to subordinate its own statutes to those of others, but by appraising the governmental interest of each jurisdiction and deciding accordingly.[98] Obviously this doctrine endows the Court with something akin to an arbitral function in the decision of cases to which it is applied. TRANSITORY ACTIONS: DEATH STATUTES The initial effort in this direction was made in connection with transitory actions based on statute. Earlier, such actions had rested upon the common law, which was fairly uniform throughout the States, so that there was usually little discrepancy between the law under which the plaintiff from another jurisdiction brought his action (_lex loci_) and the law under which the defendant responded (_lex fori_). In the late seventies, however, the States, abandoning the common law rule on the subject, began passing laws which authorized the representatives of a decedent whose death had resulted from injury to bring an action for damages.[99] The question at once presented itself whether, if such an action was brought in a State other than that in which the injury occurred, it was governed by the statute under which it arose or by the law of the forum State, which might be less favorable to the defendant. Nor was it long before the same question presented itself with respect to transitory action _ex contractu_, where the contract involved had been made under laws peculiar to the State where made, and with those laws in view. ACTIONS UPON CONTRACT: WHEN GOVERNED BY LAW OF PLACE OF MAKING In Chicago and Alton R.R. _v._ Wiggins,[100] referred to above, the Court, confronted with the latter form of the question, indicated its clear opinion that in such situations it was the law under which the contract was made, not the law of the forum State, which should govern. Its utterance on the point was, however, not merely _obiter_; it was based on an error, namely, the false supposition that the Constitution gives "acts" the same extraterritorial operation as the act of 1790 does "judicial records and proceedings." Notwithstanding which, this dictum is today the basis of "the settled rule" that the defendant in a transitory action is entitled to all the benefits resulting from whatever material restrictions the statute under which plaintiff's right of action originated sets thereto, except that courts of sister States cannot be thus prevented from taking jurisdiction in such cases.[101] However, a State court does not violate the full faith and credit clause by mere error in construing the law upon which a transitory action from another state depends;[102] nor is a court of the forum State guilty of a disregard thereof when it entertains a suit based on a statute of another State, albeit the statute in terms limits actions thereunder to courts of the enacting State.[103] Moreover, in actions on contracts made in other States, a State constitutionally may decline to enforce in its courts, as contrary to its own policy, the laws of such States relating to the right to add interest to the recovery as an incidental item of damages.[104] STOCKHOLDER--CORPORATION RELATIONSHIP Nor is it alone to defendants in transitory actions that the full faith and credit clause is today a shield and a buckler. Some legal relationships are so complex, the Court holds, that the law under which they were formed ought always to govern them as long as they persist.[105] One such relationship is that of a stockholder and his corporation. Hence, if a question arises as to the liability of the stockholders of a corporation, the courts of the forum State are required by the full faith and credit clause to determine the question in accordance with the Constitution, laws and judicial decisions of the corporation's home State.[106] Illustrative applications of the latter rule are to be found in the following cases. A New Jersey statute forbidding an action at law to enforce a stockholder's liability arising under the laws of another State, and providing that such liability may be enforced only in equity, and that in such a case the corporation, its legal representatives, all its creditors, and stockholders, should be necessary parties, was held not to preclude an action at law in New Jersey by the New York State superintendent of banks against 557 New Jersey stockholders in an insolvent New York bank to recover assessments made under the laws of New York.[107] Also, in a suit to enforce double liability, brought in Rhode Island against a stockholder in a Kansas trust company, the courts of Rhode Island were held to be obligated to extend recognition to the statutes and court decisions of Kansas whereunder it is established that a Kansas judgment recovered by a creditor against the trust company is not only conclusive as to the liability of the corporation but also an adjudication binding each stockholder therein. The only defenses available to the stockholder are those which he could make in a suit in Kansas.[108] FRATERNAL BENEFIT SOCIETY--MEMBER RELATIONSHIP And the same principle applies to the relationship which is formed when one takes out a policy in a "fraternal benefit society." Thus in Royal Arcanum v. Green,[109] in which a fraternal insurance association chartered under the laws of Massachusetts was being sued in the courts of New York by a citizen of the latter State on a contract of insurance made in that State, the Court held that the defendant company was entitled under the full faith and credit clause to have the case determined in accordance with the laws of Massachusetts and its own constitution and by-laws as these had been construed by the Massachusetts courts. Nor has the Court manifested lately any disposition to depart from this rule. In Sovereign Camp _v._ Bolin[110] it declared that a State in which a certificate of life membership of a foreign fraternal benefit association is issued, which construes and enforces said certificate according to its own law rather than according to the law of the State in which the association is domiciled denies full faith and credit to the association's charter embodied in the statutes of the domiciliary State as interpreted by the latter's court. "The beneficiary certificate was not a mere contract to be construed and enforced according to the laws of the State where it was delivered. Entry into membership of an incorporated beneficiary society is more than a contract; it is entering into a complex and abiding relation and the rights of membership are governed by the law of the State of incorporation. [Hence] another State, wherein the certificate of membership was issued, cannot attach to membership rights against the society which are refused by the law of domicile." Consistently therewith, the Court also held, in Order of Travelers _v._ Wolfe,[111] that South Dakota, in a suit brought therein by an Ohio citizen against an Ohio benefit society, must give effect to a provision of the constitution of the society prohibiting the bringing of an action on a claim more than six months after disallowance by the society, notwithstanding that South Dakota's period of limitation was six years and that its own statutes voided contract stipulations limiting the time within which rights may be enforced. Objecting to these results, Justice Black dissented on the ground that fraternal insurance companies are not entitled, either by the language of the Constitution, or by the nature of their enterprise, to such unique constitutional protection. INSURANCE COMPANY, BUILDING AND LOAN ASSOCIATION--CONTRACTUAL RELATIONSHIPS Whether or not distinguishable by nature of their enterprise, stock and mutual insurance companies and mutual building and loan associations, unlike fraternal benefit societies, have not been accorded the same unique constitutional protection; and, with few exceptions,[112] have had controversies arising out of their business relationships settled by application of the law of the forum State. In National Mutual B. & L. Asso. _v._ Brahan,[113] the principle applicable to these three forms of business organization was stated as follows: Where a corporation has become localized in a State and has accepted the laws of the State as a condition of doing business there, it cannot abrogate those laws by attempting to make contract stipulations, and there is no violation of the full faith and credit clause in instructing a jury to find according to local law notwithstanding a clause in a contract that it should be construed according to the laws of another State. Thus, when a Mississippi borrower, having repaid a mortgage loan to a New York building and loan association, sued in a Mississippi court to recover, as usurious, certain charges collected by the association, the usury law of Mississippi rather than that of New York was held to control. In this case, the loan contract, which was negotiated in Mississippi subject to approval by the New York office, did not expressly state that it was governed by New York law.[114] Similarly, when the New York Life Insurance Company, which had expressly stated in its application and policy forms that they would be controlled by New York law, was sued in Missouri on a policy sold to a resident thereof, the court of that State was sustained in its application of Missouri rather than New York law.[115] Also, in an action in a federal court in Texas to collect the amount of a life insurance policy which had been made in New York and later changed by instruments assigning beneficial interest, it was held that questions: (1) whether the contract remained one governed by the law of New York with respect to rights of assignees, rather than by the law of Texas, (2) whether the public policy of Texas permits recovery by one named beneficiary who has no beneficial interest in the life of the insured, and (3) whether lack of insurable interest becomes material when the insurer acknowledges liability and pays the money into court, were questions of Texas law, to be decided according to Texas decisions.[116] Consistent with the latter holdings are the following two involving mutual insurance companies. In Pink _v._ A.A.A. Highway Express,[117] the New York insurance commissioner, as a statutory liquidator of an insolvent auto mutual company organized in New York sued resident Georgia policyholders in a Georgia court to recover assessments alleged to be due by virtue of their membership in it. The Supreme Court held that, although by the law of the State of incorporation, policyholders of a mutual insurance company become members thereof and as such liable to pay assessments adjudged to be required in liquidation proceedings in that State, the courts of another State are not required to enforce such liability against local resident policyholders who did not appear and were not personally served in the foreign liquidation proceedings; but are free to decide according to local law the question whether, by entering into the policies, residents became members of the company. Again, in State Farm Ins. _v._ Duel,[118] the Court ruled that an insurance company chartered in State A, which does not treat membership fees as part of premiums, cannot plead denial of full faith and credit when State B, as a condition of entry, requires the company to maintain a reserve computed by including membership fees as well as premiums received in all States. Were the company's contention accepted, "no State," the Court observed, "could impose stricter financial standards for foreign corporations doing business within its borders than were imposed by the State of incorporation." It is not apparent, the Court added, that State A has an interest superior to that of State B in the financial soundness and stability of insurance companies doing business in State B,--which is obviously more the language of arbitration than of adjudication, as conventionally regarded. WORKMEN'S COMPENSATION STATUTES Finally, the relationship of employer and employee, so far as the obligations of the one and the rights of the other under workmen's compensation acts are concerned, has been the subject of similar treatment. In an earlier case,[119] the cause of action was an injury in New Hampshire, resulting in death to a workman who had entered the defendant company's employment in Vermont, the home State of both parties. The Court held that the case was governed under the full faith and credit clause by the Vermont workmen's compensation act, not that of New Hampshire. The relationship, it said, "was created by the law of Vermont, and so long as that relationship persisted its incidents were properly subject to regulation there."[120] However, in an unacknowledged departure from this ruling the Court has subsequently held that the full faith and credit clause did not preclude California from disregarding a Massachusetts workmen's compensation statute and applying its own conflicting act in the case of an injury suffered by a Massachusetts employee of a Massachusetts employer while in California in the course of his employment.[121] The earlier case was distinguished as not having decided more than that a State statute, applicable to employer and employee within the State, which provides compensation if the employee is injured while temporarily in another State, will be given full faith and credit in the latter when not obnoxious to its policy. Inasmuch as the Court in the older decision is reputed to have observed that reliance on the Vermont statute, as a defense to the New Hampshire suit, was not obnoxious to the policy of New Hampshire, it may be possible to reconcile these two cases by stating that a foreign workmen's compensation statute will be recognized when it is invoked as a defense but need not be applied when the plaintiff endeavors to found his suit thereon. Later decisions involving the recognition of a foreign workmen's compensation act include the following. In Magnolia Petroleum Co. _v._ Hunt[122] the Court ruled that a Louisiana employee of a Louisiana employer, who is injured on the job in Texas and who receives an award under the Texas Act, which does not grant further recovery to an employee who receives compensation under the laws of another State, cannot obtain additional compensation under the Louisiana Act. However, a compensation award by State A to a resident employee of a resident employer injured on the job in State B will not preclude State B from awarding added compensation under its own laws, when the compensation statute of State A does not expressly exclude recovery under a law of the State in which the injury occurred and when the State A award incorporated a private settlement contract wherein the employee reserved his rights in State B.[123] Also, the District of Columbia workmen's compensation act, which expressly covers an employee of the District employer, "irrespective of the place where the injury occurs," constitutionally may be applied, in the case of injury resulting in death, to a District resident, employed by a District employer, who was assigned to a job at Quantico, Virginia, and who, for three years prior to his death in Virginia, has commuted to the job site from his house in the District.[124] Development of Section to Date and Possibilities EVALUATION OF RESULTS Thus the Court, from according an extrastate operation to statutes and judicial decisions in favor of defendants in transitory actions, proceeded next to confer the same protection upon certain classes of defendants in local actions in which the plaintiff's claim was the outgrowth of a relationship formed extraterritorially. But can the Court stop at this point? If it is true, as Chief Justice Marshall once remarked, that "the Constitution was not made for the benefit of plaintiffs alone," so also it is true that it was not made for the benefit of defendants alone. The day may come when the Court will approach the question of the relation of the full faith and credit clause to the extrastate operation of laws from the same angle as it today views the broader question of the scope of State legislative power. When and if this day arrives, State statutes and judicial decisions will be given such extraterritorial operation as seems reasonable to the Court to give them. In short, the rule of the dominance of local policy of the forum State will be superseded by that of judicial review.[125] The question arises whether the application to date, not by the Court alone but by Congress and the Court, of article IV, section 1, can be said to have met the expectations of its framers. In the light of some things said at the time of the framing of the clause this may be doubted. The protest was raised against the clause that in vesting Congress with power to declare the effect State laws should have outside the enacting State, it enabled the new government to usurp the powers of the States; but the objection went unheeded. The main concern of the Convention, undoubtedly, was to render the judgments of the State courts in civil cases effective throughout the Union. Yet even this object has been by no means completely realized, owing to the doctrine of the Court that before a judgment of a State court can be enforced in a sister State, a new suit must be brought on it in the courts of the latter; and the further doctrine that with respect to such a suit, the judgment sued on is only evidence; the logical deduction from which proposition is that the sister State is under no constitutional compulsion to give it a forum. These doctrines were first clearly stated in the McElmoyle Case and flowed directly from the new States' rights premises of the Court; but they are no longer in harmony with the prevailing spirit of constitutional construction nor with the needs of the times. Also, the clause seems always to have been interpreted on the basis of the assumption that the term "judicial proceedings" refers only to final judgments and does not include intermediate processes and writs; but the assumption would seem to be groundless, and if it is, then Congress has the power under the clause to provide for the service and execution throughout the United States of the judicial processes of the several States. SCOPE OF POWERS OF CONGRESS UNDER SECTION Under the present system, suit has ordinarily to be brought where the defendant, the alleged wrongdoer, resides, which means generally where no part of the transaction giving rise to the action took place. What could be more irrational? "Granted that no state can of its own volition make its process run beyond its borders * * * is it unreasonable that the United States should by federal action be made a unit in the manner suggested?"[126] Indeed, there are few clauses of the Constitution, the merely literal possibilities of which have been so little developed as the full faith and credit clause. Congress has the power under the clause to decree the effect that the statutes of one State shall have in other States. This being so, it does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union, and that no other kind shall. Or to speak in more general terms, Congress has under the clause power to enact standards whereby uniformity of State legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be useful and valuable. FULL FAITH AND CREDIT IN THE FEDERAL COURTS As we saw earlier, the legislation of Congress comprised in section 905 of the Revised Statutes lays down a rule not merely for the recognition of the records and judicial proceedings of State courts in the courts of sister States, but for their recognition in "every court of the United States," and it further lays down a like rule for the records and proceedings of the courts "of any territory or any country subject to the jurisdiction of the United States." Thus the courts of the United States are bound to give to the judgments of the State courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of her sister States.[127] So, where suits to enforce the laws of one State are entertained in courts of another on principles of comity, federal district courts sitting in that State may entertain them, and should, if they do not infringe federal law or policy.[128] However, the refusal of a territorial court in Hawaii, having jurisdiction of the action, which was on a policy issued by a New York insurance company, to admit evidence that an administrator had been appointed and a suit brought by him on a bond in the federal court in New York wherein no judgment had been entered, did not violate this clause.[129] The power to prescribe what effect shall be given to the judicial proceedings of the courts of the United States is conferred by other provisions of the Constitution, such as those which declare the extent of the judicial power of the United States, which authorize all legislation necessary and proper for executing the powers vested by the Constitution in the Government of the United States, and which declare the supremacy of the authority of the National Government within the limits of the Constitution. As part of its general authority, the power to give effect to the judgment of its courts is coextensive with its territorial jurisdiction.[130] JUDGMENTS OF FOREIGN STATES Doubtless Congress might also by virtue of its powers in the field of foreign relations lay down a mandatory rule regarding recognition of foreign judgments in every court of the United States. At present the duty to recognize judgments even in national courts rests only on comity and is qualified, in the judgment of the Supreme Court, by a strict rule of parity.[131] Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. The Comity Clause SOURCES The community of rights among the citizens of the several States guaranteed by this article is traceable to colonial days. It had its origin in the fact that the colonists were all subjects of the same monarch.[132] After the Declaration of Independence was signed, the question arose as to how to reconcile the advantages of a common citizenship with a dispersed sovereignty. One element of the solution is to be seen in the Fourth of the Articles of Confederation, which read as follows: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively * * *" Madison, writing in _The Federalist_,[133] adverted to the confusion engendered by use of the different terms "free inhabitants, free citizens," and "people" and by "superadding to 'all privileges and immunities of free citizens--all the privileges of trade and commerce,' * * *" The more concise phraseology of article IV, however, did little to dispel the uncertainty. In the Slaughter-House Cases,[134] Justice Miller suggested that it was to be regarded as the compendious equivalent of the earlier version: "There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the Articles of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general ideal of the class of civil rights meant by the phrase."[135] THEORIES AS TO ITS PURPOSE First and last, at least four theories have been proffered regarding the purpose of this clause. The first is that the clause is a guaranty to the citizens of the different States of equal treatment by Congress--is, in other words, a species of equal protection clause binding on the National Government. The second is that the clause is a guaranty to the citizens of each State of all the privileges and immunities of citizenship that are enjoyed in any State by the citizens thereof,--a view which, if it had been accepted at the outset, might well have endowed the Supreme Court with a reviewing power over restrictive State legislation as broad as that which it later came to exercise under the Fourteenth Amendment. The third theory of the clause is that it guarantees to the citizen of any State the rights which he enjoys as such even when sojourning in another State, that is to say, enables him to carry with him his rights of State citizenship throughout the Union, without embarrassment by State lines. Finally, the clause is interpreted as merely forbidding any State to discriminate against citizens of other States in favor of its own. Though the first theory received some recognition in the Dred Scott Case,[136] particularly in the opinion of Justice Catron,[137] it is today obsolete. The second was specifically rejected in McKane _v._ Durston;[138] the third, in Detroit _v._ Osborne.[139] The fourth has become a settled doctrine of Constitutional Law.[140] In the words of Justice Miller in the Slaughter-House Cases,[141] the sole purpose of the comity clause was "to declare to the several States, that whatever these rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction."[142] It follows that this section has no application in controversies between a State and its own citizens.[143] It is deemed to be infringed by a hostile discrimination against all nonresidents[144] but not by such differences of treatment between residents and nonresidents as the nature of the subject matter makes reasonable.[145] HOW IMPLEMENTED This clause is self-executory, that is to say, its enforcement is dependent upon the judicial process. It does not authorize penal legislation by Congress. Federal statutes prohibiting conspiracies to deprive any person of rights or privileges secured by State laws,[146] or punishing infractions by individuals of the right of citizens to reside peacefully in the several States, and to have free ingress into and egress from such States,[147] have been held void. CITIZENS OF EACH STATE A question much mooted before the Civil War was whether the term could be held to include free Negroes. In the Dred Scott Case,[148] the Court answered it in the negative. "Citizens of each State," Chief Justice Taney argued, meant citizens of the United States as understood at the time the Constitution was adopted, and Negroes were not then regarded as capable of citizenship. The only category of national citizenship added under the Constitution comprised aliens, naturalized in accordance with acts of Congress.[149] In dissent, Justice Curtis not only denied the Chief Justice's assertion that there were no Negro citizens of States in 1789, but further argued that while Congress alone could determine what classes of aliens should be naturalized, the several States retained the right to extend citizenship to classes of persons born within their borders who had not previously enjoyed citizenship, and that one upon whom State citizenship was thus conferred became a citizen of the State in the full sense of the Constitution.[150] So far as persons born in the United States, and subject to the jurisdiction thereof are concerned, the question was put at rest by the Fourteenth Amendment. CORPORATIONS At a comparatively early date the claim was made that a corporation chartered by a State and consisting of its citizens was entitled to the benefits of the comity clause in the transaction of business in other States. It was argued that the Court was bound to look beyond the act of incorporation and see who were the incorporators. If it found these to consist solely of citizens of the incorporating State, it was bound to permit them through the agency of the corporation, to exercise in other States such privileges and immunities as the citizens thereof enjoyed. In Bank of Augusta _v._ Earle[151] this view was rejected. The Supreme Court held that the comity clause was never intended "to give to the citizens of each State the privileges of citizens in the several States, and at the same time to exempt them from the liabilities which the exercise of such privileges would bring upon individuals who were citizens of the State. This would be to give the citizens of other States far higher and greater privileges than are enjoyed by the citizens of the State itself."[152] A similar result was reached in Paul _v._ Virginia,[153] but by a different course of reasoning. The Court there held that a corporation--in this instance, an insurance company--was "the mere creation of local law" and could "have no legal existence beyond the limits of the sovereignty"[154] which created it; even recognition of its existence by other States rested exclusively in their discretion. More recent cases have held that this discretion is qualified by other provisions of the Constitution, notably the commerce clause and the Fourteenth Amendment.[155] By reason of its similarity to the corporate form of organization, a Massachusetts trust has been denied the protection of this clause.[156] ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES The classical judicial exposition of the meaning of this phrase is that of Justice Washington in Corfield _v._ Coryell,[157] which was decided by him on circuit in 1823. The question at issue was the validity of a New Jersey statute which prohibited "any person who is not, at the time, an actual inhabitant and resident in this State" from raking or gathering "clams, oysters or shells" in any of the waters of the State, on board any vessel "not wholly owned by some person, inhabitant of and actually residing in this State. * * * The inquiry is," wrote Justice Washington, "what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, * * *"[158] He specified the following rights as answering this description: "Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of _habeas corpus_; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State; * * *"[159] After thus defining broadly the private and personal rights which were protected, Justice Washington went on to distinguish them from the right to a share in the public patrimony of the State. "* * * we cannot accede" the opinion proceeds, "to the proposition * * * that, under this provision of the Constitution, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all other States the same advantages as are secured to their own citizens."[160] The right of a State to the fisheries within its borders he then held to be in the nature of a property right, held by the State "for the use of the citizens thereof;" the State was under no obligation to grant "co-tenancy in the common property of the State, to the citizens of all the other States."[161] The precise holding of this case was confirmed in McCready _v._ Virginia;[162] the logic of Geer _v._ Connecticut[163] extended the same rule to wild game, and Hudson County Water Co. _v._ McCarter[164] applied it to the running water of a State. In Toomer _v._ Witsell,[165] however, the Court refused to apply this rule to free-swimming fish caught in the three-mile belt off the coast of South Carolina. It held instead that "commercial shrimping in the marginal sea, like other common callings, is within the purview of the privileges and immunities clause" and that a heavily discriminatory license fee exacted from nonresidents was unconstitutional.[166] Universal practice has also established another exception to which the Court gave approval by a dictum in Blake _v._ McClung:[167] "A State may, by rule uniform in its operation as to citizens of the several States, require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office."[168] DISCRIMINATION IN PRIVATE RIGHTS Not only has judicial construction of the comity clause excluded some privileges of a public nature from its protection; the courts have also established the proposition that the purely private and personal rights to which the clause admittedly extends are not in all cases beyond the reach of State legislation which differentiates citizens and noncitizens. Broadly speaking, these rights are held subject to the reasonable exercise by a State of its police power, and the Court has recognized that there are cases in which discrimination against nonresidents may be reasonably resorted to by a State in aid of its own public health, safety and welfare. To that end a State may restrict the right to sell insurance to persons who have resided within the State for a prescribed period of time.[169] It may require a nonresident who does business within the State[170] or who uses the highways of the State[171] to consent, expressly or by implication, to service of process on an agent within the State. Without violating this section, a State may limit the dower rights of a nonresident to lands of which the husband died seized while giving a resident dower in all lands held during the marriage,[172] or may leave the rights of nonresident married persons in respect of property within the State to be governed by the laws of their domicile, rather than by the laws it promulgates for its own residents.[173] But a State may not give a preference to resident creditors in the administration of the property of an insolvent foreign corporation.[174] An act of the Confederate Government, enforced by a State, to sequester a debt owed by one of its residents to a citizen of another State was held to be a flagrant violation of this clause.[175] ACCESS TO COURTS The right to sue and defend in the courts is one of the highest and most essential privileges of citizenship, and must be allowed by each State to the citizens of all other States to the same extent that it is allowed to its own citizens.[176] The constitutional requirement is satisfied if the nonresident is given access to the courts of the State upon terms which, in themselves, are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically the same as those accorded to resident citizens.[177] The Supreme Court upheld a State statute of limitations which prevented a nonresident from suing in the State's courts after expiration of the time for suit in the place where the cause of action arose,[178] and another such statute which suspended its operation as to resident plaintiff, but not as to nonresidents, during the period of the defendant's absence from the State.[179] A State law making it discretionary with the courts to entertain an action by a nonresident of the State against a foreign corporation doing business in the State, was sustained since it was applicable alike to citizens and noncitizens residing out of the State.[180] A statute permitting a suit in the courts of the State for wrongful death occurring outside the State, only if the decedent was a resident of the State, was sustained, because it operated equally upon representatives of the deceased whether citizens or noncitizens.[181] TAXATION A State may not, in the exercise of its taxing power, substantially discriminate between residents and nonresidents. A leading case is Ward _v._ Maryland,[182] in which the Court set aside a State law which imposed special taxes upon nonresidents for the privilege of selling within the State goods which were produced outside it. Likewise, a Tennessee statute which made the amount of the annual license tax exacted for the privilege of doing railway construction work dependent upon whether the person taxed had his chief office within or without the State, was found to be incompatible with the comity clause.[183] In Travis _v._ Yale and Towne Mfg. Co.,[184] the Court, while sustaining the right of a State to tax income accruing within its borders to nonresidents,[185] held the particular tax void because it denied to nonresidents exemptions which were allowed to residents. The "terms 'resident' and 'citizen' are not synonymous," wrote Justice Pitney, "* * * but a general taxing scheme * * * if it discriminates against all nonresidents, has the necessary effect of including in the discrimination those who are citizens of other States; * * *"[186] Where there was no discrimination between citizens and noncitizens, a State statute taxing the business of hiring persons within the State for labor outside the State, was sustained.[187] This section of the Constitution does not prevent a territorial government, exercising powers delegated by Congress, from imposing a discriminatory license tax on nonresident fishermen operating within its waters.[188] However, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting State is considered. On the basis of over-all fairness, the Court sustained a Connecticut statute which required nonresident stockholders to pay a State tax measured by the full market value of their stock, while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation.[189] Occasional or accidental inequality to a nonresident taxpayer are not sufficient to defeat a scheme of taxation whose operation is generally equitable.[190] In an early case the Court brushed aside as frivolous the contention that a State violated this clause by subjecting one of its own citizens to a property tax on a debt due from a nonresident secured by real estate situated where the debtor resided.[191] Clause 2. A person charged in any State With Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. Fugitives From Justice DUTY TO SURRENDER Although this provision is not in its nature self-executing, and there is no express grant to Congress of power to carry it into effect, that body passed a law shortly after the Constitution was adopted, imposing upon the Governor of each State the duty to deliver up fugitives from justice found in such State.[192] The Supreme Court has accepted this contemporaneous construction as establishing the validity of this legislation.[193] The duty to surrender is not absolute and unqualified; if the laws of the State to which the fugitive has fled have been put in force against him, and he is imprisoned there, the demands of those laws may be satisfied before the duty of obedience to the requisition arises.[194] In Kentucky _v._ Dennison[195] the Court held, moreover, that this statute was merely declaratory of a moral duty; that the Federal Government "has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; * * *"[196] and consequently that a federal court could not issue a mandamus to compel the governor of one State to surrender a fugitive to another. In 1934 Congress plugged the loophole exposed by this decision by making it unlawful for any person to flee from one State to another for the purpose of avoiding prosecution in certain cases.[197] FUGITIVE FROM JUSTICE To be a fugitive from justice within the meaning of this clause, it is not necessary that the party charged should have left the State after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun. It is sufficient that the accused, having committed a crime within one State and having left the jurisdiction before being subjected to criminal process, is found within another State.[198] The motive which induced the departure is immaterial.[199] Even if he were brought involuntarily into the State where found by requisition from another State, he may be surrendered to a third State upon an extradition warrant.[200] A person indicted a second time for the same offense is nonetheless a fugitive from justice by reason of the fact that after dismissal of the first indictment, on which he was originally indicted, he left the State with the knowledge of, or without objection by, State authorities.[201] But a defendant cannot be extradited if he was only constructively present in the demanding State at the time of the commission of the crime charged.[202] For the purpose of determining who is a fugitive from justice, the words "treason, felony or other crime" embrace every act forbidden and made punishable by a law of a State,[203] including misdemeanors.[204] PROCEDURE FOR REMOVAL Only after a person has been charged with crime in the regular course of judicial proceedings is the governor of a State entitled to make demand for his return from another State.[205] The person demanded has no constitutional right to be heard before the governor of the State in which he is found on the question whether he has been substantially charged with crime and is a fugitive from justice.[206] The constitutionally required surrender is not to be interfered with by _habeas corpus_ upon speculations as to what ought to be the result of a trial.[207] Nor is it proper thereby to inquire into the motives controlling the actions of the governors of the demanding and surrendering States.[208] Matters of defense, such as the running of the statute of limitations, cannot be heard on _habeas corpus_, but must be determined at the trial.[209] A defendant will, however, be discharged on _habeas corpus_ if he shows by clear and satisfactory evidence that he was outside the demanding State at the time of the crime.[210] If, however, the evidence is conflicting, _habeas corpus_ is not a proper proceeding to try the question of alibi.[211] TRIAL OF FUGITIVE AFTER REMOVAL There is nothing in the Constitution or laws of the United States which exempts an offender, brought before the courts of a State for an offense against its laws, from trial and punishment, even though he was brought from another State by unlawful violence,[212] or by abuse of legal process,[213] and a fugitive lawfully extradited from another State may be tried for an offense other than that for which he was surrendered.[214] The rule is different, however, with respect to fugitives surrendered by a foreign government pursuant to treaty. In that case the offender may be tried only "for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."[215] Clause 3. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. This clause contemplated the existence of a positive unqualified right on the part of the owner of a slave which no State law could in any way regulate, control or restrain. Consequently the owner of a slave had the same right to seize and repossess him in another State, as the local laws of his own State conferred upon him, and a State law which penalized such seizure was held unconstitutional.[216] Congress had the power and the duty, which it exercised by the act of February 12, 1793,[217] to carry into effect the rights given by this Section,[218] and the States had no concurrent power to legislate on the subject.[219] However, a State statute providing a penalty for harboring a fugitive slave was held not to conflict with this clause since it did not affect the right or remedy either of the master or the slave; by it the State simply prescribed a rule of conduct for its own citizens in the exercise of its police power.[220] Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. Doctrine of the Equality of the States "Equality of constitutional right and power is the condition of all the States of the Union, old and new."[221] This doctrine, now a truism of Constitutional Law, did not find favor in the Constitutional Convention. That body struck out from this section, as reported by the Committee on Detail, two sections to the effect that "... new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States concerning the public debt which shall be subsisting."[222] Opposing this action, Madison insisted that "the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States."[223] Nonetheless, after further expressions of opinion _pro_ and _con_, the Convention voted nine States to two to delete the requirement of equality.[224] Prior to this time, however, Georgia and Virginia had ceded to the United States large territories held by them, upon condition that new States should be formed therefrom, and admitted to the Union on an equal footing with the original States.[225] With the admission of Louisiana in 1812, the principle of equality was extended to States created out of territory purchased from a foreign power.[226] By the Joint Resolution of December 29, 1845, Texas "was admitted into the Union on an equal footing with the original States in all respects whatever."[227] Again and again, in adjudicating the rights and duties of States admitted after 1789, the Supreme Court has referred to the condition of equality as if it were an inherent attribute of the Federal Union.[228] Finally, in 1911, it invalidated a restriction on the change of location of the State capital, which Congress had imposed as a condition for the admission of Oklahoma, on the ground that Congress may not embrace in an enabling act conditions relating wholly to matters under State control.[229] In an opinion, from which Justices Holmes and McKenna dissented, Justice Lurton argued: "The power is to admit 'new States into _this_ Union.' 'This Union' was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission."[230] EARLIER SCOPE OF THE DOCTRINE Until recently, however, the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights.[231] Broadly speaking, every new State is entitled to exercise all the powers of government which belong to the original States of the Union.[232] It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits except where it has ceded exclusive jurisdiction to the United States.[233] The legislative authority of a newly admitted State extends over federally owned land within the State, to the same extent as over similar property held by private owners, save that the State can enact no law which would conflict with the constitutional powers of the United States. Consequently it has jurisdiction to tax private activities carried on within the public domain, if the tax does not constitute an unconstitutional burden on the Federal Government.[234] Statutes applicable to territories, e.g., the Northwest Territory Ordinance of 1787, cease to have any operative force when the territory, or any part thereof, is admitted to the Union, except as adopted by State law.[235] When the enabling act contains no exclusion of jurisdiction as to crimes committed on Indian reservations by persons other than Indians, State courts are vested with jurisdiction.[236] But the constitutional authority of Congress to regulate commerce with Indian tribes is not inconsistent with the equality of new States,[237] and conditions inserted in the New Mexico Enabling Act forbidding the introduction of liquor into Indian territory were therefore valid.[238] CITIZENSHIP OF INHABITANTS Admission of a State on an equal footing with the original States involves the adoption as citizens of the United States of those whom Congress makes members of the political community, and who are recognized as such in the formation of the new State.[239] JUDICIAL PROCEEDINGS Whenever a territory is admitted into the Union, the cases pending in the territorial court which are of exclusive federal cognizance are transferred to the federal court having jurisdiction over the area; cases not cognizable in the federal courts are transferred to the tribunals of the new State, and those over which federal and State courts have concurrent jurisdiction may be transferred either to the State or federal courts by the party possessing that option under existing law.[240] Where Congress neglected to make provision for disposition of certain pending cases in an Enabling Act for the admission of a State to the Union, a subsequent act supplying the omission was held valid.[241] After a case, begun in a United States court of a territory, is transferred to a State court under the operation of the enabling act and the State constitution, the appellate procedure is governed by the State statutes and procedure.[242] The new State cannot, without the express or implied assent of Congress, enact that the records of the former territorial court of appeals should become records of its own courts, or provide by law for proceedings based thereon.[243] PROPERTY RIGHTS: UNITED STATES _v._ TEXAS Holding that a "mere agreement in reference to property" involved "no question of equality of status," the Supreme Court upheld, in Stearns _v._ Minnesota,[244] a promise exacted from Minnesota upon its admission to the Union which was interpreted to limit its right to tax lands held by the United States at the time of admission and subsequently granted to a railroad. The "equal footing" doctrine has had an important effect, however, on the property rights of new States to soil under navigable waters. In Pollard _v._ Hagan,[245] the Court held that the original States had reserved to themselves the ownership of the shores of navigable waters and the soils under them, and that under the principle of equality the title to the soils of navigable waters passes to a new State upon admission. After refusing to extend the inland-water rule of this case to the three mile marginal belt under the ocean along the coast,[246] the Court applied the principle of the Pollard Case in reverse in United States _v._ Texas.[247] Since the original States had been found not to own the soil under the three mile belt, Texas, which concededly did own this soil before its annexation to the United States, was held to have surrendered its dominion and sovereignty over it, upon entering the Union on terms of equality with the existing States. To this extent, the earlier rule that unless otherwise declared by Congress the title to every species of property owned by a territory passes to the State upon admission[248] has been qualified. RIGHTS CONVEYED TO PRIVATE PERSONS BEFORE ADMISSION OF A STATE While the territorial status continues, the United States has power to convey property rights, such as rights in soil below high-water mark along navigable waters,[249] or the right to fish in designated waters,[250] which will be binding on the State. But a treaty with an Indian tribe which gave hunting rights on unoccupied lands of the United States, which rights should cease when the United States parted with its title to any of the land, was held to be repealed by the admission to the Union of the territory in which the hunting lands were situated.[251] Clause 2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Property of the United States METHODS OF DISPOSING THEREOF The Constitution is silent as to the methods of disposing of property of the United States. In United States _v._ Gratiot,[252] in which the validity of a lease of lead mines on government lands was put in issue, the contention was advanced that "disposal is not letting or leasing," and that Congress has no power "to give or authorize leases." The Court sustained the leases, saying "the disposal must be left to the discretion of Congress."[253] Nearly a century later this power to dispose of public property was relied upon to uphold the generation and sale of electricity by the Tennessee Valley Authority. The reasoning of the Court ran thus: the potential electrical energy made available by the construction of a dam in the exercise of its constitutional powers is property which the United States is entitled to reduce to possession; to that end it may install the equipment necessary to generate such energy. In order to widen the market and make a more advantageous disposition of the product, it may construct transmission lines, and may enter into a contract with a private company for the interchange of electric energy.[254] PUBLIC LANDS No appropriation of public lands may be made for any purpose except by authority of Congress.[255] However, the long-continued practice of withdrawing land from the public domain by Executive Orders for the purpose of creating Indian reservations has raised an implied delegation of authority from Congress to take such action.[256] The comprehensive authority of Congress over public lands includes the power to prescribe the times, conditions and mode of transfer thereof, and to designate the persons to whom the transfer shall be made;[257] to declare the dignity and effect of titles emanating from the United States;[258] to determine the validity of grants which antedate the government's acquisition of the property;[259] to exempt lands acquired under the homestead laws from previously contracted debts;[260] to withdraw land from settlement and to prohibit grazing thereon;[261] to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement;[262] and to prohibit the introduction of liquor on lands purchased and used for an Indian colony.[263] Congress may limit the disposition of the public domain to a manner consistent with its views of public policy. A restriction inserted in a grant of public lands to a municipality which prohibited the grantee from selling or leasing to a private corporation the right to sell or sublet water or electric energy supplied by the facilities constructed on such land was held valid.[264] THE POWER OF THE STATE No State can tax public lands of the United States within its borders;[265] nor can State legislation interfere with the power of Congress under this clause or embarrass its exercise.[266] The question whether title to land which has once been the property of the United States has passed from it must be resolved by the laws of the United States; after title has passed, "that property, like all other property in the State, is subject to State legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States."[267] In construing a conveyance by the United States of land within a State, the settled and reasonable rule of construction of the State affords a guide in determining what impliedly passes to the grantee as an incident to land expressly granted.[268] But a State statute enacted subsequently to a federal grant cannot be given effect to vest in the State rights which either remained in the United States or passed to its grantee.[269] POWER OF CONGRESS OVER THE TERRITORIES In the territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which a State legislature might act.[270] It may legislate directly with respect to the local affairs of a territory or it may transfer that function to a legislature elected by the citizens thereof,[271] which will then be invested with all legislative power except as limited by the Constitution of the United States and acts of Congress.[272] In 1886, Congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects.[273] The constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by Congressional action,[274] but not to unincorporated territories.[275] Alaska is of the former description,[276] while the status of Hawaii appears to be doubtful.[277] Congress may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section rather than from article IV.[278] Such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the States only by constitutional courts.[279] Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. A Republican Form of Government It was established in the pioneer case of Luther _v._ Borden,[280] that questions arising under this section are political, not judicial, in character, and that "it rests with Congress to decide what government is the established one in a State * * * as well as its republican character."[281] Upon Congress also rested the duty to restore republican governments to the States which seceded from the Union at the time of the Civil War. In Texas _v._ White[282] the Supreme Court declared that the action of the President in setting up provisional governments at the end of the war was justified, if at all, only as an exercise of his powers as Commander in Chief and that such governments were to be regarded merely as provisional regimes to perform the functions of government pending action by Congress. On the ground that the questions were not justiciable in character, the Supreme Court has refused to consider whether the adoption of the initiative and referendum,[283] or the delegation of legislative power to other departments of government[284] is compatible with a republican form of government. This guarantee does not give the Supreme Court jurisdiction to review a decision of a State court sustaining a determination of an election contest for the office of governor made by a State legislature under the authority of a State constitution.[285] Inasmuch as women were denied the right to vote in most, if not all, of the original thirteen States, it was held, prior to the adoption of Amendment XIX, that a State government could be challenged under this clause by reason of the fact that it did not permit women to vote.[286] Protection Against Domestic Violence The Supreme Court also held in Luther _v._ Borden[287] that it rested with Congress to determine upon the means proper to fulfill the constitutional guarantee of protection to the States against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere. Instead, Congress had, by the act of February 28, 1795,[288] authorized the President to call out the militia in case of insurrection against the government of any State. It followed, said Taney, that the President "must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress"[289] and that his determination was not subject to review by the courts. DECLINE IN IMPORTANCE OF THIS GUARANTY With the recognition in the Debs Case[290] of the power and duty of the Federal Government to use "the entire strength of the Nation * * * to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care,"[291] this clause has declined in importance. When that Government finds it necessary or desirable to use force to quell domestic violence, its power to protect the property of the United States, to remove obstructions to the United States mails, or to protect interstate commerce from interruption by labor disputes or otherwise, usually will furnish legal warrant for its action, without reference to this provision.[292] Notes [1] Clark _v._ Graham, 6 Wheat. 577 (1821), is an early case in which the Supreme Court enforced this rule. [2] Stat. 122 (1790); 2 Stat. 299 (1804), R.S. § 905 28 U.S.C. § 687. [3] Mankin _v._ Chandler & Co., 2 Brock. 125, 127 (1823). [4] 7 Cr. 481 (1813). _See_ also Everett _v._ Everett, 215 U.S. 203 (1909); Mutual L. Ins. Co. _v._ Harris, 97 U.S. 331 (1878). [5] On the same basis, a judgment cannot be impeached either in or out of the State by showing that it was based on a mistake of law. American Exp. Co. _v._ Mullins, 212 U.S. 311, 312 (1909); Fauntleroy _v._ Lum, 210 U.S. 230 (1908); Hartford L. Ins. Co. _v._ Barber, 245 U.S. 146 (1917); Hartford L. Ins. Co. _v._ Ibs, 237 U.S. 662 (1915). [6] 3 Wheat. 234 (1818). [7] 13 Pet. 312 (1839). _See also_ Bacon _v._ Howard, 20 How. 22, 25 (1858); Bank of Ala. _v._ Dalton, 9 How. 522, 528 (1850); Great Western Telegraph Co. _v._ Purdy, 162 U.S. 329 (1896); Christmas _v._ Russell, 5 Wall. 290, 301 (1866); Wisconsin _v._ Pelican Insurance Co., 127 U.S. 265, 292 (1888). [8] Cole _v._ Cunningham, 133 U.S. 107, 112 (1890). _See also_ Stacy _v._ Thrasher, use of Sellers, 6 How. 44, 61 (1848); Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268 (1935). [9] Chicago & A.R. Co. _v._ Wiggins Ferry Co., 119 U.S. 615, 622 (1887); Hanley _v._ Donoghue, 116 U.S. 1, 3 (1885). _See also_ Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Green _v._ Van Buskirk, 7 Wall. 139, 140 (1869); Roche _v._ McDonald, 275 U.S. 449 (1928); Ohio _v._ Chattanooga Boiler & Tank Co., 289 U.S. 439 (1933). [10] Sistare _v._ Sistare, 218 U.S. 1 (1910). [11] Michigan Trust Co. _v._ Ferry, 228 U.S. 346 (1913). _See also_ Fall _v._ Eastin, 215 U.S. 1 (1909). [12] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268, 275-276 (1935). [13] Board of Public Works _v._ Columbia College, 17 Wall. 521 (1873); Robertson _v._ Pickrell, 109 U.S. 608, 610 (1883). [14] Kersh Lake Drainage Dist. _v._ Johnson, 309 U.S. 485 (1940). _See also_ Texas & P.R. Co. _v._ Southern P. Co., 137 U.S. 48 (1890). [15] National Exchange Bank _v._ Wiley, 195 U.S. 257, 265 (1904). _See also_ Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890). [16] Harding _v._ Harding, 198 U.S. 317 (1905). The following cases further illustrate the application of the clause when its protection is sought by a defendant. Such claim must be specific, Wabash R. Co. _v._ Flannigan, 192 U.S. 29, 37 (1904). _See also_ American Exp. Co. _v._ Mullins, 212 U.S. 311 (1909). The burden is upon the party making it to establish the failure of a court to give to decrees of a federal court and the court of another State the due effect to which they are entitled. Commercial Pub. Co. _v._ Beckwith, 188 U.S. 567, 573 (1903). However, by defending on the merits, after pleading and relying upon a foreign judgment, a party does not waive the benefits of an alleged estoppel arising from the foreign judgment. Harding _v._ Harding, 198 U.S. 317, 330 (1905). Nor is a decree of dismissal, not on the merits, a bar to suit in another jurisdiction. Swift _v._ McPherson, 232 U.S. 51 (1914). Nor is an entry of discontinuance. In allowing the plaintiff to show that such entry of discontinuance was not intended by the parties as a release and satisfaction of the cause of action, but was the result of a promissory agreement by the defendant which was never complied with, the Court in the forum State was not refusing full faith and credit to the judgment. Such evidence was properly allowed, not to contradict the legal import of said judgment, but to show the true meaning of the parties to the suit in agreeing upon its discontinuance. Jacobs _v._ Marks, 182 U.S. 583, 593 (1901). [17] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373 (1903). [18] Fauntleroy _v._ Lum, 210 U.S. 230 (1908). Justice Holmes, who spoke for the Court in both cases, asserted in his opinion in the latter that the New York statute was "directed to jurisdiction," the Mississippi statute to "merits," but four Justices could not grasp the distinction. [19] Kenney _v._ Supreme Lodge, 252 U.S. 411 (1920), and cases there cited. Holmes again spoke for the Court. _See also_ Cook, The Powers of Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421, 434 (1919). [20] Broderick _v._ Rosner, 294 U.S. 629 (1935), affirmed in Hughes _v._ Fetter, 341 U.S. 609 (1951). [21] Union National Bank _v._ Lamb, 337 U.S. 38 (1949); _see also_ Roche _v._ McDonald, 275 U.S. 449 (1928). [22] Embry _v._ Palmer, 107 U.S. 3, 13 (1883). [23] Titus _v._ Wallick, 306 U.S. 282, 291-292 (1939). [24] Morris _v._ Jones, 329 U.S. 545 (1947). [25] Thus why should not a judgment for alimony be made directly enforceable in sister States instead of merely furnishing the basis of an action in debt? _See_ Thompson _v._ Thompson, 226 U.S. 551 (1913). [26] Board of Public Works _v._ Columbia College, 17 Wall. 521, 528 (1873). _See also_ Spokane & I.E.R. Co. _v._ Whitley, 237 U.S. 487 (1915); Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Brown _v._ Fletcher, 210 U.S. 82 (1908); Wisconsin _v._ Pelican Ins. Co., 127 U.S. 265, 291 (1888); Huntington _v._ Attrill, 146 U.S. 657, 685 (1892). However a denial of credit, founded upon a mere suggestion of want of jurisdiction and unsupported by evidence, violates the clause. _See also_ Rogers _v._ Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. _v._ Ford, 238 U.S. 503 (1915). [27] _See_ Cooper _v._ Reynolds, 10 Wall. 308 (1870). [28] 11 How. 165 (1850). [29] Justice Johnson, dissenting in Mills _v._ Duryee, 7 Cr. 481 (1813), had said: "There are certain eternal principles of justice which never ought to be dispensed with, and which Courts of justice never can dispense with but when compelled by positive statute. One of those is, that jurisdiction cannot be justly exercised by a State over property not within the reach of its process, or over persons not owing them allegiance or not subjected to their jurisdiction, by being found within their limits." Ibid. 486. [30] 95 U.S. 714 (1878). [31] McDonald _v._ Mabee, 243 U.S. 90, 92 (1917). _See also_ Wetmore _v._ Karrick, 205 U.S. 141 (1907). [32] Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890). _See also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); Galpin _v._ Page, 18 Wall. 350 (1874); Old Wayne Mutual Life Asso. Co. _v._ McDonough, 204 U.S. 8 (1907). [33] Reynolds _v._ Stockton, 140 U.S. 254 (1891). [34] Renaud _v._ Abbott, 116 U.S. 277 (1886); Jaster _v._ Currie, 198 U.S. 144 (1905). [35] Milliken _v._ Meyer, 311 U.S. 457, 463 (1940). [36] Adam _v._ Saenger, 303 U.S. 59, 62 (1938). [37] Hancock National Bank _v._ Farnum, 176 U.S. 640 (1900). [38] Stacy _v._ Thrasher, use of Sellers, 6 How. 44, 58 (1848). [39] Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912). [40] 18 How. 404 (1856). [41] To the same effect is Connecticut Mut. Ins. Co. _v._ Spratley, 172 U.S. 602 (1899). [42] Simon _v._ Southern Ky., 236 U.S. 115 (1915). [43] Goldey _v._ Morning News, 156 U.S. 518 (1895); Riverside Mills _v._ Menefee, 237 U.S. 189 (1915). [44] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914); Riverside Mills _v._ Menefee, 237 U.S. 189 (1915). [45] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914). [46] Kane _v._ New Jersey, 242 U.S. 160 (1916); Hess _v._ Pawloski, 274 U.S. 352 (1927). Limited in Wuchter _v._ Pizzutti, 276 U.S. 13 (1928). [47] 18 Wall. 457 (1874). [48] _See_ 1 Black, Judgments § 246 (1891). [49] _See also_ Simmons _v._ Saul, 138 U.S. 439, 448 (1891). In other words, the challenge to jurisdiction is treated as equivalent to the plea _nul tiel record_, a plea which was recognized even in Mills _v._ Duryee as always available against an attempted invocation of the full faith and credit clause. What is not pointed out by the Court, is that it was also assumed in the earlier case that such a plea could always be rebutted by producing a transcript, properly authenticated in accordance with the act of Congress, of the judgment in the original case. _See also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); German Savings Society _v._ Dormitzer, 192 U.S. 125, 128 (1904); Grover & Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287, 294 (1890). [50] Cheever _v._ Wilson, 9 Wall. 108 (1870). [51] Andrews _v._ Andrews, 188 U.S. 14 (1903). _See also_ German Savings Society _v._ Dormitzer, 192 U.S. 125 (1904). [52] 201 U.S. 562 (1906). _See also_ Thompson _v._ Thompson, 226 U.S. 551 (1913). [53] 181 U.S. 155, 162 (1901). [54] 317 U.S. 287 (1942); 325 U.S. 226 (1945). [55] 305 U.S. 32 (1938). [56] 317 U.S. 287, 298-299 (1942). [57] Ibid. at p. 302. [58] 317 U.S. 287, 312, 315, 321 (1942). [59] 325 U.S. 226, 229 (1945). [60] Bell _v._ Bell, 181 U.S. 175 (1901); Andrews _v._ Andrews, 188 U.S. 14 (1903). [61] Strong dissents were filed which have influenced subsequent holdings. Among these was that of Justice Rutledge which attacked both the consequences of the decision as well as the concept of jurisdictional domicile on which it was founded. "Unless 'matrimonial domicil,' banished in _Williams_ I [by the overruling of Haddock _v._ Haddock], has returned renamed ['domicil of origin'] in _Williams_ II, every decree becomes vulnerable in every State. Every divorce, wherever granted, * * *, may now be reexamined by every other State, upon the same or different evidence, to redetermine the 'jurisdictional fact,' always the ultimate conclusion of 'domicil.' * * * "The Constitution does not mention domicil. Nowhere does it posit the powers of the states or the nation upon that amorphous, highly variable common-law conception. * * * No legal conception, save possibly 'jurisdiction,' * * *, affords such possibilities for uncertain application. * * * Apart from the necessity for travel, [to effect a change of domicile, the latter], criterion comes down to a purely subjective mental state, related to remaining for a length of time never yet defined with clarity. * * * When what must be proved is a variable, the proof and the conclusion which follows upon it inevitably take on that character. * * * [The majority have not held] that denial of credit will be allowed, only if the evidence [as to the place of domicile] is different or depending in any way upon the character or the weight of the difference. The test is not different evidence. It is evidence, whether the same or different and, if different, without regard to the quality of the difference, from which an opposing set of inferences can be drawn by the trier of fact 'not unreasonably.' * * * But * * * [the Court] does not define 'not unreasonably.' It vaguely suggests a supervisory function, to be exercised when the denial [of credit] strikes its sensibilities as wrong, by some not stated standard. * * * There will be no 'weighing' [of evidence], * * * only examination for sufficiency."--(325 U.S. 226, 248, 251, 255, 258-259 (1945)). No less disposed to prophesy undesirable results from this decision was Justice Black in whose dissenting opinion Justice Douglas concurred. "The full faith and credit clause, as now interpreted, has become a disrupting influence. The Court in effect states that the clause does not apply to divorce actions, and that States alone have the right to determine what effect shall be given to the decrees of other States. If the Court is abandoning the principle that a marriage [valid where made is valid everywhere], a consequence is to subject people to bigamy or adultery prosecutions because they exercise their constitutional right to pass from a State in which they were validly married on to another which refuses to recognize their marriage. Such a consequence violates basic guarantees." North Carolina's interest was to preserve a bare marital status as to two persons who sought a divorce and two others who had not objected to it. "It is an extraordinary thing for a State to procure a retroactive invalidation of a divorce decree, and then punish one of its citizens for conduct authorized by that decree, when it had never been challenged by either of the people most immediately interested in it." The State here did not sue to protect any North Carolina property rights nor to obtain support for deserted families. "I would not permit such an attenuated state interest to override the Full Faith and Credit Clause * * *" (325 U.S. 226, 262-267 (1945)). The unsettling effect of this decision was expressed statistically by Justice Black as follows: "Statistics indicate that approximately five million divorced persons are scattered throughout the forty-eight States. More than 85% of these divorces were granted in uncontested proceedings. Not one of this latter group can now retain any feeling of security in his divorce decree. Ever present will be the danger of criminal prosecution and harassment." Ibid. 262-263. As to the conclusion that the Supreme Court as well as the State courts should reach in like situations, Justice Black asserted that "until Congress has commanded a different 'effect' for divorces granted on a short sojourn within a State, we should stay our hands. * * * If we follow that course, North Carolina cannot be permitted to disregard the Nevada decrees without passing upon the 'faith and credit' which Nevada itself would give to them under its own 'law or usage.' * * * For in Nevada, even its Attorney General could not have obtained a cancellation of the decree * * *." Ibid. 267, 268. The reader should take note of the effect in some of the above opinions to weigh competing interests against one another and the implication that the court's relation to the full faith and credit clause is that of an arbitral tribunal rather than of a court in the conventional sense of a body whose duty is to maintain an established rule of law. [62] 325 U.S. 279 (1945). [63] Ibid. 281-283. [64] 334 U.S. 541 (1948). _See also_ the companion case of Kreiger _v._ Kreiger, 334 U.S. 555 (1948). [65] Esenwein _v._ Commonwealth, 325 U.S. 279, 280 (1945). [66] Because the record, in his opinion, did not make it clear whether New York "law" held that no "_ex parte_" divorce decree could terminate a prior New York separate maintenance decree, or merely that no "_ex parte_" decree of divorce of _another State_ could, Justice Frankfurter dissented and recommended that the case be remanded for clarification. Justice Jackson dissented on the ground that under New York law, a New York divorce would terminate the wife's right to alimony; and if the Nevada decree is good, it is entitled to no less effect in New York than a local decree. However, for reasons stated in his dissent in the First Williams Case, 317 U.S. 287, he would prefer not to give standing to constructive service divorces obtained on short residence. 334 U.S. 541, 549-554 (1948). These two Justices filed similar dissents in the companion case of Kreiger _v._ Kreiger, 334 U.S. 555, 557 (1948). [67] 334 U.S. 343 (1948). [68] 334 U.S. 378 (1948).--In a dissenting opinion filed in the case of Sherrer _v._ Sherrer, but applicable also to the case of Coe _v._ Coe, Justice Frankfurter, with Justice Murphy concurring, asserted his inability to accept the proposition advanced by the majority that "regardless of how overwhelming the evidence may have been that the asserted domicile in the State offering bargain-counter divorces was a sham, the home State of the parties is not permitted to question the matter if the form of a controversy had been gone through."--334 U.S. 343, 377 (1948). [69] 336 U.S. 674 (1949).--Of four Justices dissenting (Black, Douglas, Rutledge, Jackson), Justice Jackson alone filed a written opinion. To him the decision is "an example of the manner in which, in the law of domestic relations, 'confusion now hath made his masterpiece,'" but for the first Williams case and its progeny, the judgment of the Connecticut court might properly have held that the Rice divorce decree was void for every purpose because it was rendered by a State court which never obtained jurisdiction of the nonresident defendant. "But if we adhere to the holdings that the Nevada court had power over her for the purpose of blasting her marriage and opening the way to a successor, I do not see the justice of inventing a compensating confusion in the device of divisible divorce by which the parties are half-bound and half-free and which permits Rice to have a wife who cannot become his widow and to leave a widow who was no longer his wife." Ibid. 676, 679, 680. [70] Vermont violated the clause in sustaining a collateral attack on a Florida divorce decree, the presumption of Florida's jurisdiction over the cause and the parties not having been overcome by extrinsic evidence or the record of the case. Cook _v._ Cook, 342 U.S. 126 (1951). The Sherrer and Coe cases were relied upon. There seems, therefore, to be no doubt of their continued vitality. [71] Barber _v._ Barber, 323 U.S. 77, 84 (1944). [72] Sistare _v._ Sistare, 218 U.S. 1, 11 (1910). _See also_ Barber _v._ Barber, 21 How. 582 (1859); Lynde _v._ Lynde, 181 U.S. 183, 186-187 (1901); Bates _v._ Bodie, 245 U.S. 520 (1918); Audubon _v._ Shufeldt, 181 U.S. 575, 577 (1901); Yarbrough _v._ Yarbrough, 290 U.S. 202 (1933); Loughran _v._ Loughran, 292 U.S. 216 (1934). [73] Griffin _v._ Griffin, 327 U.S. 220 (1946). [74] Ibid. 228. An alimony case of a quite extraordinary pattern was that of Sutton _v._ Leib. On account of the diverse citizenship of the parties, who had once been husband and wife, the case was brought by the latter in a federal court in Illinois. Her suit was to recover unpaid alimony which was to continue until her remarriage. To be sure, she had, as she confessed, remarried in Nevada, but the marriage had been annulled in New York on the ground that the man was already married, inasmuch as his divorce from his previous wife was null and void, she having neither entered a personal appearance nor been personally served. The Court, speaking by Justice Reed, held that the New York annulment of the Nevada marriage must be given full faith and credit in Illinois, but left Illinois to decide for itself the effect of the annulment upon the obligations of petitioner's first husband. Sutton _v._ Leib, 342 U.S. 402 (1952). [75] Halvey _v._ Halvey, 330 U.S. 610, 615 (1947). [76] Johnson _v._ Muelberger, 341 U.S. 581 (1951). [77] Tilt _v._ Kelsey, 207 U.S. 43 (1907); Burbank _v._ Ernst, 232 U.S. 162 (1914). [78] Riley _v._ New York Trust Company, 315 U.S. 343 (1942). [79] Brown _v._ Fletcher, 210 U.S. 82, 90 (1908). _See also_ Stacy _v._ Thrasher, Use of Sellers, 6 How. 44, 58 (1848); McLean _v._ Meek, 18 How. 16, 18, (1856). [80] Tilt _v._ Kelsey, 207 U.S. 43 (1907). In the case of Borer _v._ Chapman, 119 U.S. 587, 599 (1887) involving a complicated set of facts, it was held, in 1887, that a judgment in a probate proceeding, which was merely ancillary to proceedings in another State and which ordered the residue of the estate to be assigned to the legatee and discharged the executor from further liability, did not prevent a creditor, who was not a resident of the State in which the ancillary judgment was rendered, from setting up his claim in the State probate court which had the primary administration of the estate. [81] Blodgett _v._ Silberman, 277 U.S. 1 (1928). [82] Kerr _v._ Devisees of Moon, 9 Wheat. 565 (1824); McCormick _v._ Sullivant, 10 Wheat. 192 (1825); Clarke _v._ Clarke, 178 U.S. 186 (1900). The controlling principle of these cases is not confined to proceedings in probate. A court of equity "not having jurisdiction of the _res_ cannot affect it by its decree nor by a deed made by a master in accordance with the decree." _See_ Fall _v._ Eastin, 215 U.S. 1, 11 (1909). [83] Robertson _v._ Pickrell, 109 U.S. 608, 611 (1883). _See also_ Darby _v._ Mayer, 10 Wheat. 465 (1825); Gasquet _v._ Fenner, 247 U.S. 16 (1918). [84] Olmsted _v._ Olmsted, 216 U.S. 386 (1910). [85] Hood _v._ McGehee, 237 U.S. 611 (1915). [86] Harris _v._ Balk, 198 U.S. 215 (1905). _See also_ Chicago, R.I. & Pac. Ry _v._ Sturm, 174 U.S. 710 (1899); King _v._ Cross, 175 U.S. 396, 399 (1899); Louisville & N.R. Co. _v._ Deer, 200 U.S. 176 (1906); Baltimore & O.R. Co. _v._ Hostetter, 240 U.S. 620 (1916). [87] Christmas _v._ Russell, 5 Wall. 290 (1866); Maxwell _v._ Stewart, 21 Wall. 71 (1875); Hanley _v._ Donoghue, 116 U.S. 1 (1885); Wisconsin _v._ Pelican Ins. Co., 127 U.S. 265 (1888); Simmons _v._ Saul, 138 U.S. 439 (1891); American Express Co. _v._ Mullins, 212 U.S. 311 (1909). [88] Fauntleroy _v._ Lum, 210 U.S. 230 (1908). [89] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373 (1903). [90] 133 U.S. 107 (1890). [91] The Antelope, 10 Wheat. 66, 123 (1825). _See also_ Wisconsin _v._ Pelican Ins. Co., 127 U.S. 265 (1888). [92] 146 U.S. 657 (1892). _See also_ Dennick _v._ R.R. 103 U.S. 11 (1881). [93] Milwaukee County _v._ White (N.E.) Co., 296 U.S. 268 (1935). _See also_ Moore _v._ Mitchell, 281 U.S. 18 (1930). [94] Bank of Augusta _v._ Earle, 13 Pet. 519, 589-596 (1839). _See_ Kryger _v._ Wilson, 242 U.S. 171 (1916); Bond _v._ Hume, 243 U.S. 15 (1917). [95] 19 How. 393, 460 (1857); Bonaparte _v._ Tax Court, 104 U.S. 592 (1882), where it was held that a law exempting from taxation certain bonds of the enacting State did not operate extraterritorially by virtue of the full faith and credit clause. [96] Chicago & Alton R. Co. _v._ Wiggins Ferry, 119 U.S. 615, 622 (1887). [97] Smithsonian Institution _v._ St. John, 214 U.S. 19 (1909). When, in a State court, the validity of an act of the legislature of another State is not in question, and the controversy turns merely upon its interpretation or construction, no question arises under the full faith and credit clause. _See also_ Western Life Indemnity Co. _v._ Rupp, 235 U.S. 261 (1914), citing Glenn _v._ Garth, 147 U.S. 360 (1893); Lloyd _v._ Matthews, 155 U.S. 222, 227 (1894); Banholzer _v._ New York L. Ins. Co., 178 U.S. 402 (1900); Allen _v._ Alleghany Co., 196 U.S. 458, 465 (1905); Texas & N.O.R. Co. _v._ Miller, 221 U.S. 408 (1911). _See also_ National Mut. Bldg. & Loan Asso. _v._ Brahan, 193 U.S. 635 (1904); Johnson _v._ New York Life Ins. Co., 187 U.S. 491, 495 (1903); Pennsylvania F. Ins. Co. _v._ Gold Issue Min. & Mill. Co., 243 U.S. 93 (1917). [98] Alaska Packers Asso. _v._ Industrial Acci. Commission, 294 U.S. 532 (1935); Bradford Electric Light Co. _v._ Clapper, 286 U.S. 145 (1932). [99] Dennick _v._ R.R., 103 U.S. 11 (1881) was the first of the so-called "Death Act" cases to reach the Supreme Court. _See also_ Stewart _v._ B.& O.R. Co., 168 U.S. 445 (1897). Even today the obligation of a State to furnish a forum for the determination of death claims arising in another State under the laws thereof appears to rest on a rather precarious basis. In Hughes _v._ Fetter, 341 U.S. 609 (1951), the Court, by a narrow majority, held invalid under the full faith and credit clause a statute of Wisconsin which, as locally interpreted, forbade its courts to entertain suits of this nature; and in First National Bank _v._ United Air Lines, 342 U.S. 396 (1952), a like result was reached as to an Illinois statute. In both cases the same four Justices dissented. [100] 119 U.S. 615 (1887). [101] Northern Pac. R.R. _v._ Babcock, 154 U.S. 190 (1894); Atchison, T. & S.F.R. Co. _v._ Sowers, 213 U.S. 55, 67 (1909). [102] Glenn _v._ Garth, 147 U.S. 360 (1893). [103] Tennessee Coal Co. _v._ George, 233 U.S. 354 (1914). [104] Klaxon Co. _v._ Stentor, 313 U.S. 487 (1941); John Hancock Mut. Life Ins. Co. _v._ Yates, 299 U.S. 178 (1936) distinguished. [105] Modern Woodmen of Am. _v._ Mixer, 267 U.S. 544 (1925). [106] Converse _v._ Hamilton, 224 U.S. 243 (1912); Selig _v._ Hamilton, 234 U.S. 652 (1914); Marin _v._ Augedahl, 247 U.S. 142 (1918). [107] Broderick _v._ Rosner, 294 U.S. 629 (1935). _See also_ Thormann _v._ Frame, 176 U.S. 350, 356 (1900); Reynolds _v._ Stockton, 140 U.S. 254, 264 (1891). [108] Hancock Nat. Bank. _v._ Farnum, 176 U.S. 640 (1900). [109] 237 U.S. 531 (1916); followed in Modern Woodmen of Am. _v._ Mixer, 267 U.S. 544 (1925). [110] 305 U.S. 66, 75, 79 (1938). [111] 331 U.S. 586, 588-589, 637 (1947). [112] New York Life Ins. Co. _v._ Head, 234 U.S. 149 (1914); Aetna Life Ins. Co. _v._ Dunken, 266 U.S. 389 (1924). [113] 193 U.S. 635 (1904). [114] National Mutual B. & L. Asso. _v._ Brahan, 193 U.S. 635 (1904). [115] New York Life Ins. Co. _v._ Cravens, 178 U.S. 389 (1900). _See also_ American Fire Ins. Co. _v._ King Lumber Co., 250 U.S. 2 (1919). [116] Griffin _v._ McCoach, 313 U.S. 498 (1941). [117] 314 U.S. 201, 206-208 (1941). However, a decree of a Montana Supreme Court, insofar as it permitted judgment creditors of a dissolved Iowa surety company to levy execution against local assets to satisfy judgment, as against title to such assets of the Iowa insurance commissioner as statutory liquidator and successor to the dissolved company, was held to deny full faith and credit to the statutes of Iowa.--Clark _v._ Willard, 292 U.S. 112 (1934). [118] 324 U.S. 154, 159-160 (1945). [119] Bradford Electric Co. _v._ Clapper, 286 U.S. 145, 158 (1932). [120] The Court had earlier remarked that "workmen's compensation legislation rests upon the idea of status, not upon that of implied contract." Cudahy Packing Co. _v._ Parramore, 263 U.S. 418, 423 (1923). In contrast to the above cases, _see_ Kryger _v._ Wilson, 242 U.S. 171 (1916), where it was held that the question whether the cancellation of a land contract was governed by the _lex rei sitae_ or the _lex loci contractus_ was purely a question of local common law; _also_ Bond _v._ Hume, 243 U.S. 15 (1917). [121] Pacific Ins. Co. _v._ Comm'n., 306 U.S. 493, 497, 503-504 (1939). [122] 320 U.S. 430 (1943). [123] Industrial Comm'n. _v._ McCartin, 330 U.S. 622 (1947). [124] Cardillo _v._ Liberty Mutual Co., 330 U.S. 469 (1947). [125] Reviewing some of the cases treated in this section, a writer in 1925 said: "It appears, then, that the Supreme Court has quite definitely committed itself to a program of making itself, to some extent, a tribunal for bringing about uniformity in the field of conflicts * * * although the precise circumstances under which it will regard itself as having jurisdiction for this purpose are far from clear." E.M. Dodd, The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws (1926), 39 Harv. L. Rev. 533-562. It can hardly be said that the law has been subsequently clarified on this point. [126] Walter W. Cook, The Power of Congress Under the Full Faith and Credit Clause (1919), 28 Yale L.J. 430. [127] Cooper _v._ Newell, 173 U.S. 555, 567 (1899). _See also_ Wisconsin _v._ Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift _v._ McPherson, 232 U.S. 51 (1914); Pennington _v._ Gibson, 16 How. 65, 81 (1854); Cheever _v._ Wilson, 9 Wall. 108, 123 (1870); Baldwin _v._ Iowa State Traveling Men's Asso., 283 U.S. 522 (1931); American Surety Co. _v._ Baldwin, 287 U.S. 156 (1932); Sanders _v._ Armour Fertilizer Works, 292 U.S. 190 (1934). [128] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268 (1935). [129] Equitable L. Assur. Soc. _v._ Brown, 187 U.S. 308 (1902). _See also_ Gibson _v._ Lyon, 115 U.S. 439 (1885). [130] Embry _v._ Palmer, 107 U.S. 3, 9 (1883). _See also_ Northern Assur. Co. _v._ Grand View Bldg. Asso., 203 U.S. 106 (1906); Atchison, T. & S.F.R. Co. _v._ Sowers, 213 U.S. 55 (1909); Knights of Pythias _v._ Meyer, 265 U.S. 30, 33 (1924); Louisville & N.R. Co. _v._ Central Stockyards Co., 212 U.S. 132 (1909); West Side Belt R. Co. _v._ Pittsburgh Constr. Co., 219 U.S. 92 (1911). [131] No right, privilege, or immunity is conferred by the Constitution in respect to judgments of foreign states and nations.--Aetna Life Ins. Co. _v._ Tremblay, 223 U.S. 185 (1912). In Hilton _v._ Guyot, 159 U.S. 113, 234 (1895) where a French judgment offered in defense was held not a bar to the suit. Four Justices dissented on the ground that "the application of the doctrine of _res judicata_ does not rest in discretion; and it is for the Government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary." At the same sitting of the Court, an action in a United States circuit court on a Canadian judgment was sustained on the same ground of reciprocity. Ritchie _v._ McMullen, 159 U.S. 235 (1895). _See also_ Ingenohl _v._ Olsen, 273 U.S. 541 (1927), where a decision of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a judgment of the Supreme Court of the British colony of Hongkong, which was rendered "after a fair trial by a court having jurisdiction of the parties." In 1897 Foreign Relations of the United States 7-8, will be found a three-cornered correspondence between the State Department, the Austro-Hungarian Legation, and the Governor of Pennsylvania, in which the last named asserts that "under the laws of Pennsylvania the judgment of a court of competent jurisdiction in Croatia would be respected to the extent of permitting such judgment to be sued upon in the courts of Pennsylvania." Stowell, _op. cit. supra_ note I, at 254-255. Another instance of international cooperation in the judicial field is furnished by letters rogatory. "When letters rogatory are addressed from any court of a foreign country to any district court of the United States, a commissioner of such district court designated by said court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts," 28 U.S.C.A., _supra_ note II, § 653. Some of the States have similar laws. _See_ 2 Moore, Digest of International Law (1906) 108-109. [132] David K. Watson, The Constitution of the United States, vol. II, 1206 (1910). [133] The Federalist No. 42. [134] 16 Wall. 36 (1873). [135] Ibid. 75. [136] Scott _v._ Sandford, 19 How. 393 (1857). [137] Ibid. 518, 527-529. [138] 153 U.S. 684, 687 (1894). [139] 135 U.S. 492 (1890). [140] Slaughter-House Case, 15 Fed. Cas. No. 8408 (1870); Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142 (1907); Whitfield _v._ Ohio, 297 U.S. 431 (1936). [141] 16 Wall. 36 (1873). [142] Ibid. 77. [143] Bradwell _v._ Illinois, 16 Wall. 130, 138 (1873). _See also_ Cole _v._ Cunningham, 133 U.S. 107 (1890). [144] Blake _v._ McClung, 172 U.S. 239, 246 (1898); Travis _v._ Yale & Towne Mfg. Co., 252 U.S. 60 (1920). [145] La Tourette _v._ McMaster, 248 U.S. 465 (1919); Douglas _v._ New York, N.H. & H.R. Co., 279 U.S. 377 (1929); _cf._ Maxwell _v._ Bugbee, 250 U.S. 525 (1919). [146] United States _v._ Harris, 106 U.S. 629, 643 (1883). _See also_ Baldwin _v._ Franks, 120 U.S. 678 (1887). [147] United States _v._ Wheeler, 254 U.S. 281 (1920). [148] Scott _v._ Sandford, 19 How. 393 (1857) [149] Ibid. 403-411. [150] Ibid. 572-590. [151] 13 Pet. 519 (1939). [152] Ibid. 586. [153] 8 Wall. 168 (1869). [154] Ibid. 181. [155] Crutcher _v._ Kentucky, 141 U.S. 47 (1891). _See also_ pp. 193-198, 1049-1056. [156] Hemphill _v._ Orloff, 277 U.S. 537 (1928). [157] 6 Fed. Cas. No. 3,230, 546, 550 (1823). [158] Ibid. 551-522. [159] Ibid. 552. [160] Corfield _v._ Coryell, 6 Fed. Cas. No. 3230, 546, 552 (1823). [161] Ibid. 552. [162] 94 U.S. 391 (1877). [163] 161 U.S. 519 (1896). [164] 209 U.S. 349 (1908). [165] 334 U.S. 385 (1948). [166] Ibid. 403. In Mullaney _v._ Anderson, 342 U.S. 415 (1952) an Alaska statute providing for the licensing of commercial fishermen in territorial waters and levying a license fee of $50.00 on nonresident and only $5.00 on resident fishermen was held void under Art. IV, § 2 on the authority of Toomer _v._ Witsell, cited above. [167] 172 U.S. 239 (1898). [168] Ibid. 256. [169] La Tourette _v._ McMaster, 248 U.S. 465 (1919). [170] Doherty and Co. _v._ Goodman, 294 U.S. 623 (1935). [171] Hess _v._ Pawloski, 274 U.S. 352, 356 (1927). [172] Ferry _v._ Spokane P. & S.R. Co., 258 U.S. 314 (1922), followed in Ferry _v._ Corbett, 258 U.S. 609 (1922). [173] Conner _v._ Elliott, 18 How. 591, 593 (1856). [174] Blake _v._ McClung, 172 U.S. 230, 248 (1898). [175] Williams _v._ Bruffy, 96 U.S. 176, 184 (1878). [176] Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142, 148 (1907); McKnett _v._ St. Louis & S.F.R. Co., 292 U.S. 230, 233 (1934); Miles _v._ Illinois C.R. Co., 315 U.S. 698, 704 (1942). [177] Canadian N.R. Co. _v._ Eggen, 252 U.S. 553 (1920). [178] Ibid. 563. [179] Chemung Canal Bank _v._ Lowery, 93 U.S. 72, 76 (1876). [180] Douglas _v._ New York, N.H. & H.R. Co., 279 U.S. 377 (1929). [181] Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142 (1907). [182] 12 Wall. 418, 424 (1871). _See also_ Downham _v._ Alexandria, 10 Wall. 173, 175 (1870). [183] Chalker _v._ Birmingham & M.W.R. Co., 249 U.S. 522 (1919). [184] 252 U.S. 60 (1920). [185] Ibid. 62-64. _See also_ Shaffer _v._ Carter, 252 U.S. 37 (1920). [186] 252 U.S. 60, 79-80 (1920). [187] Williams _v._ Fears, 179 U.S. 270, 274 (1900). [188] Haavik _v._ Alaska Packers' Asso., 263 U.S. 510 (1924). [189] Travelers' Ins. Co. _v._ Connecticut, 185 U.S. 364, 371 (1902). [190] Maxwell _v._ Bugbee, 250 U.S. 525 (1919). [191] Kirtland _v._ Hotchkiss, 100 U.S. 491, 499 (1879). _Cf._ Colgate _v._ Harvey, 296 U.S. 404 (1935) in which discriminatory taxation of bank deposits outside the State owned by a citizen of the State was held to infringe a privilege of national citizenship, in contravention of the Fourteenth Amendment. The decision in Colgate _v._ Harvey was overruled in Madden _v._ Kentucky, 309 U.S. 83, 93 (1940). [192] 1 Stat. 302 (1793). [193] Roberts _v._ Reilly, 116 U.S. 80, 94 (1885). _See also_ Innes _v._ Tobin, 240 U.S. 127 (1916). Said Justice Story: "... the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution"; [and again] "... it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby." Prigg _v._ Pennsylvania, 16 Pet. 539, 616, 618-619 (1842). [194] Taylor _v._ Taintor, 16 Wall. 366, 371 (1873). [195] 24 How. 66 (1861); _Cf._ Prigg _v._ Pennsylvania, 16 Pet. 539, 612 (1842). [196] 24 How. 66, 107 (1861). [197] 48 Stat. 782 (1934). [198] Roberts _v._ Reilly, 116 U.S. 80 (1885). _See also_ Strassheim _v._ Daily, 221 U.S. 280 (1911); Appleyard _v._ Massachusetts, 203 U.S. 222 (1906); Ex parte Reggel, 114 U.S. 642, 650 (1885). [199] Drew _v._ Thaw, 235 U.S. 432, 439 (1914). [200] Innes _v._ Tobin, 240 U.S. 127 (1916). [201] Bassing _v._ Cady, 208 U.S. 386 (1908). [202] Hyatt _v._ New York ex rel. Corkran, 188 U.S. 691 (1903). [203] Kentucky _v._ Dennison, 24 How. 66, 103 (1861). [204] Taylor _v._ Taintor, 16 Wall. 366, 375 (1873). [205] Kentucky _v._ Dennison, 24 How. 66, 104 (1861); Pierce _v._ Creecy, 210 U.S. 387 (1908). _See also_ Marbles _v._ Creecy, 215 U.S. 63 (1909); Strassheim _v._ Daily, 221 U.S. 280 (1911); Re Strauss, 197 U.S. 324, 325 (1905). [206] Munsey _v._ Clough, 196 U.S. 364 (1905); Pettibone _v._ Nichols, 203 U.S. 192 (1906). [207] Drew _v._ Thaw, 235 U.S. 432 (1914). [208] Pettibone _v._ Nichols, 203 U.S. 192, 216 (1906). [209] Biddinger _v._ Police Comr., 245 U.S. 128 (1917). _See also_ Rodman _v._ Pothier, 264 U.S. 399 (1924). [210] Hyatt _v._ New York ex rel. Corkran, 188 U.S. 691 (1903). _See also_ South Carolina _v._ Bailey, 289 U.S. 412 (1933). [211] Munsey _v._ Clough, 196 U.S. 364, 375 (1905). [212] Ker _v._ Illinois, 119 U.S. 436, 444 (1886); Mahon _v._ Justice, 127 U.S. 700, 707, 712, 714 (1888). [213] Cook _v._ Hart, 146 U.S. 183, 193 (1892); Pettibone _v._ Nichols, 203 U.S. 192, 215 (1906). [214] Lascelles _v._ Georgia, 148 U.S. 537, 543 (1893). [215] United States _v._ Rauscher, 119 U.S. 407, 430 (1886). [216] Prigg _v._ Pennsylvania, 16 Pet. 539, 612 (1842). [217] 1 Stat. 302 (1793). [218] Jones _v._ Van Zandt, 5 How. 215, 229 (1847); Ableman _v._ Booth, 21 How. 506 (1859). [219] Prigg _v._ Pennsylvania, 16 Pet. 539, 625 (1842). [220] Moore _v._ Illinois, 14 How. 13, 17 (1853). [221] Escanaba & L.M. Transp. Co. _v._ Chicago, 107 U.S. 678, 689 (1883). [222] Madison, Journal of the Debates in the Convention which Framed the Constitution, 89 (Hunt's ed., 1908). [223] Ibid. 274. [224] Ibid. 275. [225] Pollard _v._ Hagan, 3 How. 212, 221 (1845). [226] 2 Stat. 701, 703 (1812). [227] Justice Harlan, speaking for the Court in United States _v._ Texas, 143 U.S. 621, 634 (1892); 9 Stat. 108. [228] Permoli _v._ New Orleans, 3 How. 589, 609 (1845); McCabe _v._ Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914); Illinois Central R. Co. _v._ Illinois, 146 U.S. 387, 434 (1892); Knight _v._ United Land Asso., 142 U.S. 161, 183 (1891); Weber _v._ State Harbor Comrs., 18 Wall. 57, 65 (1873). [229] Coyle _v._ Smith, 221 U.S. 559 (1911). [230] Ibid. 567. [231] United States _v._ Texas, 339 U.S. 707, 716 (1950); Stearns _v._ Minnesota, 179 U.S. 223, 245 (1900). [232] Pollard _v._ Hagan, 3 How. 212, 223 (1845); McCabe _v._ Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914). [233] Van Brocklin _v._ Tennessee, 117 U.S. 151, 167 (1886). [234] Wilson _v._ Cook, 327 U.S. 474 (1946). [235] Permoli _v._ New Orleans, 3 How. 589, 609 (1845); Sands _v._ Manistee River Imp. Co., 123 U.S. 288, 296 (1887); _see also_ Withers _v._ Buckley, 20 How. 84, 92 (1858); Willamette Iron Bridge Co. _v._ Hatch, 125 U.S. 1, 9 (1888); Cincinnati _v._ Louisville & N.R. Co., 223 U.S. 390 (1912); Huse _v._ Glover, 119 U.S. 543,(1886). [236] Draper _v._ United States, 164 U.S. 240 (1896) following United States _v._ McBratney, 104 U.S. 621 (1882). [237] Dick _v._ United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663 (1912). [238] United States _v._ Sandoval, 231 U.S. 28 (1914). [239] Boyd _v._ Nebraska, 143 U.S. 135, 170 (1892). [240] Baker _v._ Morton, 12 Wall. 150, 153 (1871). [241] Freeborn _v._ Smith, 2 Wall. 160 (1865). [242] John _v._ Paullin, 231 U.S. 583 (1913). [243] Hunt _v._ Palao, 4 How. 589 (1846). _Cf._ Benner _v._ Porter, 9 How. 235, 246 (1850). [244] 179 U.S. 223, 245 (1900). [245] How. 212, 223 (1845). _See also_ Martin _v._ Waddell, 16 Pet. 367, 410 (1842). [246] United States _v._ California, 332 U.S. 19, 38 (1947); United States _v._ Louisiana, 339 U.S. 699 (1950). [247] 339 U.S. 707, 716 (1950). [248] Brown _v._ Grant, 116 U.S. 207, 212 (1886). [249] Shively _v._ Bowlby, 152 U.S. 1, 47 (1894). _See also_ Joy _v._ St. Louis, 201 U.S. 332 (1906). [250] United States _v._ Winans, 198 U.S. 371, 378 (1905); Seufert Bros. Co. _v._ United States, 249 U.S. 194 (1919). A fishing right granted by treaty to Indians does not necessarily preclude the application to Indians of State game laws regulating the time and manner of taking fish. Kennedy _v._ Becker, 241 U.S. 556 (1916). But it has been held to be violated by the exaction of a license fee which is both regulatory and revenue-producing. Tulee _v._ Washington, 315 U.S. 681 (1942). [251] Ward _v._ Race Horse, 163 U.S. 504, 510, 514 (1896). [252] 14 Pet. 526 (1840). [253] Ibid. 533, 538. [254] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 335-340 (1936). _See also_ Alabama Power Co. _v._ Ickes, 302 U.S. 464 (1938). [255] United States _v._ Fitzgerald, 15 Pet. 407, 521 (1841). _See also_ California _v._ Deseret Water, Oil & Irrig. Co., 243 U.S. 415 (1917); Utah Power & Light Co. _v._ United States, 243 U.S. 389 (1917). [256] Sioux Tribe _v._ United States, 316 U.S. 317 (1942); United States _v._ Midwest Oil Co., 236 U.S. 459, 469 (1915). [257] Gibson _v._ Chouteau, 13 Wall. 92, 99 (1872); _see also_ Irvine _v._ Marshall, 20 How. 558 (1858); Emblem _v._ Lincoln Land Co., 184 U.S. 660, 664 (1902). [258] Bagnell _v._ Broderick, 13 Pet. 436, 450 (1839). _See also_ Field _v._ Seabury, 19 How. 323, 332 (1857). [259] Tameling _v._ United States Freehold & Emigration Co., 93 U.S. 644, 663 (1877). _See also_ United States _v._ Maxwell Land-Grant and R. Co., 121 U.S. 325, 366 (1887). [260] Ruddy _v._ Rossi, 248 U.S. 104 (1918). [261] Light _v._ United States, 220 U.S. 523 (1911). _See also_ Hutchings _v._ Low, 15 Wall. 77 (1873). [262] Camfield _v._ United States, 167 U.S. 518, 525 (1897). _See also_ Jourdan _v._ Barrett, 4 How. 169 (1846); United States _v._ Waddell, 112 U.S. 76 (1884). [263] United States _v._ McGowan, 302 U.S. 535 (1938). [264] United States _v._ San Francisco, 310 U.S. 16 (1940). [265] Van Brocklin _v._ Tennessee, 117 U.S. 151 (1886); _cf._ Wilson _v._ Cook, 327 U.S. 474 (1946). [266] Gibson _v._ Chouteau, 13 Wall 92, 99 (1872). _See also_ Irvine _v._ Marshall, 20 How. 558 (1858); Emblem _v._ Lincoln Land Co., 184 U.S. 660, 664 (1902). [267] Wilcox _v._ Jackson ex dem. M'Connel, 13 Pet. 498, 517 (1839). [268] Oklahoma _v._ Texas, 258 U.S. 574, 595 (1922). [269] United States _v._ Oregon, 295 U.S. 1, 28 (1935). [270] Simms _v._ Simms, 175 U.S. 162, 168 (1899). _See also_ United States _v._ McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E.R. Co. _v._ Gutierrez, 215 U.S. 87 (1909); First Nat. Bank _v._ Yankton County, 101 U.S. 129, 133 (1880). [271] Binns _v._ United States, 194 U.S. 486, 491 (1904). _See also_ Serè _v._ Pitot, 6 Cr. 332, 336 (1810); Murphy _v._ Ramsey, 114 U.S. 15, 44 (1885). [272] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 604 (1897); Simms _v._ Simms, 175 U.S. 162, 163 (1899); Wagoner _v._ Evans, 170 U.S. 588, 591 (1898). [273] 24 Stat. 170 (1886). [274] Downes _v._ Bidwell, 182 U.S. 244, 271 (1901). _See also_ Interstate Commerce Commission _v._ United States ex rel. Humboldt S.S. Co., 224 U.S. 474 (1912); Church of Jesus Christ of L.D.S. _v._ United States, 136 U.S. 1, 44 (1890). [275] Dorr _v._ United States, 195 U.S. 138, 149 (1904). _See also_ Balzac _v._ Porto Rico, 258 U.S. 298 (1922). [276] Rassmussen _v._ United States, 197 U.S. 516 (1905). [277] Hawaii _v._ Mankichi, 190 U.S. 197 (1903); R.M.C. Littler, The Governance of Hawaii, Chap. III (1929). [278] American Ins. Co. _v._ Canter, 1 Pet. 511, 546 (1828). _See also_ Romeu _v._ Todd, 206 U.S. 358, 368 (1907); United States _v._ McMillan, 165 U.S. 504, 510 (1897); McAllister _v._ United States, 141 U.S. 174, 180 (1891); The "City of Panama" _v._ Phelps, 101 U.S. 453, 460 (1880); Reynolds _v._ United States, 98 U.S. 145, 154 (1879); Hornbuckle _v._ Toombs, 18 Wall. 648, 655 (1874); Clinton _v._ Englebrecht, 13 Wall. 434, 447 (1872). [279] American Ins. Co. _v._ Canter, 1 Pet. 511, 545 (1828). [280] 7 How. 1 (1849). [281] Ibid. 42. _See also_ Ohio ex rel. Bryant _v._ Akron Metropolitan Park District, 281 U.S. 74, 80 (1930); Mountain Timber Co. _v._ Washington, 243 U.S. 219, 234 (1917). [282] 7 Wall. 700, 729 (1869). [283] Pacific States Teleph. & Teleg. Co. _v._ Oregon, 223 U.S. 118 (1912); Kiernan _v._ Portland, 223 U.S. 151 (1912); Ohio ex rel. Davis _v._ Hildebrant, 241 U.S. 565 (1916). [284] Ohio ex rel. Bryant _v._ Akron Metropolitan Park District, 281 U.S. 74, 80 (1930); O'Neill _v._ Leamer, 239 U.S. 244 (1915); Highland Farms Dairy Inc. _v._ Agnew, 300 U.S. 608, 612 (1937); Forsyth _v._ Hammond, 166 U.S. 506, 519 (1897). [285] Taylor _v._ Beckham, 178 U.S. 548 (1900). _See also_ Marshall _v._ Dye, 231 U.S. 250 (1914). [286] Minor _v._ Happersett, 21 Wall. 162, 175 (1875). [287] 7 How. 1 (1849). [288] 1 Stat. 424 (1795). [289] 7 How. 1, 43 (1849). [290] 158 U.S. 564 (1895). [291] Ibid. 582. [292] On the decline in observance of the formalities required by the provision both before and during World War I, _see_ Corwin, The President, Office and Powers (3d ed., 1948), 164-166. ARTICLE V MODE OF AMENDMENT Page Amendment of the Constitution 711 Scope of the amending power 711 Procedure of adoption 712 Submission of amendment 712 Ratification 712 Authentication and proclamation 713 Judicial review under article V 714 MODE OF AMENDMENT Article V The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. Amendment of the Constitution SCOPE OF AMENDING POWER When this Article was before the Constitutional Convention, a motion to insert a provision that "no State shall without its consent be affected in its internal policy" was made and rejected.[1] A further attempt to impose a substantive limitation on the amending power was made in 1861, when Congress submitted to the States a proposal to bar any future amendments which would authorize Congress to "interfere, within any State, with the domestic institutions thereof, * * *."[2] Three States ratified this article before the outbreak of the Civil War made it academic.[3] Many years later the validity of both the Eighteenth and Nineteenth Amendments was challenged because of their content. The arguments against the former took a wide range. Counsel urged that the power of amendment is limited to the correction of errors in the framing of the Constitution; that it does not comprehend the adoption of additional or supplementary provisions. They contended further that ordinary legislation cannot be embodied in a constitutional amendment and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State.[4] The Nineteenth Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e., persons chosen by voters whom the State itself had not authorized to vote for Senators.[5] Brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid. PROCEDURE OF ADOPTION Submission of Amendment When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument.[6] Instead the House decided to propose them as supplementary.[7] It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals.[8] In the National Prohibition Cases[9] the Supreme Court ruled that in proposing an amendment the two Houses of Congress thereby indicated that they deemed it necessary. That same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the members present--assuming the presence of a quorum--and not a vote of two thirds of the entire membership present and absent.[10] The approval of the President is not necessary for a proposed amendment.[11] Ratification Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Two amendments proposed in 1789, one submitted in 1810 and one in 1861, were never ratified. In Dillon _v._ Gloss[12] the Court intimated that proposals which were clearly out of date were no longer open for ratification. However, in Coleman _v._ Miller,[13] it refused to pass upon the question whether the proposed child labor amendment, submitted to the States in 1924, was open to ratification thirteen years later. It held this to be a political question which would have to be resolved by Congress in the event three fourths of the States ever gave their assent to the proposal. With respect to the Eighteenth, Twentieth, Twenty-first and Twenty-second Amendments, Congress included in the text of these proposed amendments a section stating that the article should be inoperative unless ratified within seven years. In Dillon _v._ Gloss the Court sustained this limitation on the ground that it gave effect to the implication of article V that ratification "must be within some reasonable time after the proposal."[14] Congress has complete freedom of choice between the two methods of ratification recognized by article V--by the legislatures of the States, or conventions in the States. In United States _v._ Sprague[15] counsel advanced the contention that the Tenth Amendment recognized a distinction between powers reserved to the States and powers reserved to the people, and that State legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several States. The Eighteenth Amendment being of the latter character, the ratification by State legislatures, so the argument ran, was invalid. The Supreme Court rejected the argument. It found the language of article V too clear to admit of reading any exceptions into it by implication. The term "legislatures" as used in article V means deliberative, representative bodies of the type which in 1789 exercised the legislative power in the several States. It does not comprehend the popular referendum which has subsequently become a part of the legislative process in many of the States, nor may a State validly condition ratification of a proposed constitutional amendment on its approval by such a referendum.[16] In the words of the Court: "* * * the function of a State legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State."[17] Authentication and Proclamation Formerly official notice from a State legislature, duly authenticated, that it had ratified a proposed amendment went to the Secretary of State, upon whom it was binding, "being certified by his proclamation, [was] conclusive upon the courts" as against any objection which might be subsequently raised as to the regularity of the legislative procedure by which ratification was brought about.[18] This function of the Secretary, purely ministerial in character, was, however, derived from an act of Congress, and was recently transferred to a functionary called Administrator of General Services.[19] In Dillon _v._ Gloss,[20] the Supreme Court held that the Eighteenth Amendment became operative on the date of ratification by the thirty-sixth State, rather than on the later date of the proclamation issued by the Secretary of State, and doubtless the same rule holds as to a similar proclamation by the Administrator. JUDICIAL REVIEW UNDER ARTICLE V Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was conclusive upon the courts,[21] it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman _v._ Miller.[22] This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the proposed child labor amendment to the Constitution to the effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds: (1) that the amendment had been previously rejected by the State legislature; (2) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favor of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four members of the Court. The majority ruled that the plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process "is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point."[23] Whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favor of ratification presented a justiciable controversy was left undecided, the Court being equally divided on the point.[24] In an opinion reported as "the opinion of the Court," but in which it appears that only three Justices concurred, Chief Justice Hughes declared that the writ of mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress.[25] On the same day, the Court dismissed a writ of certiorari to review a decision of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratify the child labor amendment illegal and void. Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State court, the Supreme Court found that there was no longer a controversy susceptible of judicial determination.[26] Notes [1] II Madison, Journal of Debates in the Constitutional Convention, 385-386 (Hunt's ed., 1908). [2] Cong. Globe, 1263 (1861). [3] Ames, Herman V., Proposed Amendments to the Constitution, 363 (1896). [4] Rhode Island _v._ Palmer, 253 U.S. 350, 386 (1920). [5] Leser _v._ Garnett, 258 U.S. 130 (1922). [6] Annals of Congress 433-436 (1789). [7] Ibid. 717. [8] Ibid. 430. [9] Rhode Island _v._ Palmer, 253 U.S. 350, 386 (1920). [10] Ibid. [11] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798). [12] 256 U.S. 368, 375 (1921). [13] 307 U.S. 433 (1939). [14] 256 U.S. 368, 375 (1921). [15] 282 U.S. 716 (1931). [16] Hawke _v._ Smith, 253 U.S. 221, 231 (1920). [17] Leser _v._ Garnett, 258 U.S. 130, 137 (1922). [18] Leser _v._ Garnett, 258 U.S. 130, 137 (1922). [19] 64 Stat. 979 (1950). [20] 256 U.S. 368, 376 (1921). [21] Leser _v._ Garnett, 258 U.S. 130 (1922). [22] 307 U.S. 433 (1939). _Cf._ Fairchild _v._ Hughes, 258 U.S. 126 (1922), wherein the Court held that a private citizen could not sue in the federal courts to secure an indirect determination of the validity of a constitutional amendment about to be adopted. [23] 307 U.S. 433, 459 (1939). [24] Ibid. 446, 447. [25] Ibid. 450, 456. [26] Chandler _v._ Wise, 307 U.S. 474 (1939). ARTICLE VI MISCELLANEOUS PROVISIONS Page Clause 1. Validity of debts and engagements 721 Clause 2. Supremacy of the Constitution, etc. 721 National supremacy 721 Marshall's interpretation of the clause 721 Supremacy Clause versus Tenth Amendment 722 Status of the issue today 723 Task of the Supreme Court under the clause 724 Federal instrumentalities and the State police power 725 Obligation of State courts under the Supremacy Clause 726 Immunity of the federal judicial process 727 Effect of laws passed by States in insurrection 728 Doctrine of tax exemption 728 McCulloch _v._ Maryland 728 Applicability of doctrine in re federal securities, etc. 729 Taxability of government contractors 730 Status of doctrine today 731 Ad valorem taxes under doctrine 732 Public property and functions 732 Fiscal institutions; legislative exemptions 733 Atomic Energy Commission 734 Royalties; a judicial anticlimax 734 Immunity of lessees of Indian lands 735 Summation and evaluation 735 Clause 3. Oath of office 736 Power of Congress in respect to oaths 736 National duties of State officers 736 MISCELLANEOUS PROVISIONS Article VI Clause 1. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. National Supremacy MARSHALL'S INTERPRETATION OF THE CLAUSE Although the Supreme Court had held prior to Marshall's appointment to the Bench, that the supremacy clause rendered null and void a State constitutional or statutory provision which was inconsistent with a treaty executed by the Federal Government,[1] it was left for him to develop the full significance of the clause as applied to acts of Congress. By his vigorous opinions in McCulloch _v._ Maryland[2] and Gibbons _v._ Ogden[3] he gave the principle a vitality which survived a century of vacillation under the doctrine of dual federalism. In the former case, he asserted broadly that "the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared."[4] From this he concluded that a State tax upon notes issued by a branch of the Bank of the United States was void. In Gibbons _v._ Ogden, the Court held that certain statutes of New York granting an exclusive right to use steam navigation on the waters of the State were null and void insofar as they applied to vessels licensed by the United States to engage in coastwise trade. Said the Chief Justice: "In argument, however, it has been contended, that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers. But the framers of our Constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of an act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State legislatures as do not transcend their powers, but though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it."[5] SUPREMACY CLAUSE VERSUS TENTH AMENDMENT The logic of the supremacy clause would seem to require that the powers of Congress be determined by the fair reading of the express and implied grants contained in the Constitution itself, without reference to the powers of the States. For a century after Marshall's death, however, the Court proceeded on the theory that the Tenth Amendment had the effect of withdrawing various matters of internal police from the reach of power expressly committed to Congress. This point of view was originally put forward in New York _v._ Miln,[6] which was first argued, but not decided, before Marshall's death. The Miln Case involved a New York statute which required the captains of vessels entering New York Harbor with aliens aboard to make a report in writing to the Mayor of the City, giving certain prescribed information. It might have been distinguished from Gibbons _v._ Ogden on the ground that the statute involved in the earlier case conflicted with an act of Congress, whereas the Court found that no such conflict existed in this case. But the Court was unwilling to rest its decision on that distinction. Speaking for the majority, Justice Barbour seized the opportunity to proclaim a new doctrine. He wrote: "But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called _internal police_, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive."[7] Justice Story, in dissent, stated that Marshall had heard the previous argument and reached the conclusion that the New York statute was unconstitutional.[8] Status of the Issue Today The conception of a "complete, unqualified and exclusive" police power residing in the States and limiting the powers of the National Government was endorsed by Chief Justice Taney ten years later in the License Cases.[9] In upholding State laws requiring licenses for the sale of alcoholic beverages, including those imported from other States or from foreign countries, he set up the Supreme Court as the final arbiter in drawing the line between the mutually exclusive, reciprocally limiting fields of power occupied by the National and State Governments.[10] This view has, in effect, and it would seem in theory also, been repudiated in recent cases upholding labor relations,[11] social security,[12] and fair labor standards acts[13] passed by Congress. TASK OF THE SUPREME COURT UNDER THE CLAUSE In applying the supremacy clause to subjects which have been regulated by Congress, the primary task of the Court is to ascertain whether a challenged State law is compatible with the policy expressed in the federal statute. When Congress condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation are federal questions, the answers to which are to be derived from the statute and the policy which it has adopted. To the federal statute and policy, conflicting State law and policy must yield.[14] But Congress in enacting legislation within its constitutional authority will not be deemed to have intended to strike down a State statute to protect the health and safety of the public unless its purpose to do so is clearly manifested.[15] When the United States performs its functions directly, through its own officers and employees, State police regulations clearly are inapplicable. In reversing the conviction of the governor of a national soldiers' home for serving oleomargarine in disregard of State law, the Court said that the federal officer was not "subject to the jurisdiction of the State in regard to those very matters of administration which are thus approved by Federal authority."[16] An employee of the Post Office Department is not required to submit to examination by State authorities concerning his competence and to pay a license fee before performing his official duty in driving a motor truck for transporting the mail.[17] To Arizona's complaint, in a suit to enjoin the construction of Boulder Dam, that her quasi-sovereignty would be invaded by the building of the dam without first securing approval of the State engineer as required by its laws, Justice Brandeis replied that, "if Congress has power to authorize the construction of the dam and reservoir, Wilbur [Secretary of the Interior] is under no obligation to submit the plans and specifications to the State Engineer for approval."[18] FEDERAL INSTRUMENTALITIES AND THE STATE POLICE POWER Federal instrumentalities and agencies have never enjoyed the same degree of immunity from State police regulation as from State taxation. The Court has looked to the nature of each regulation to determine whether it is compatible with the functions committed by Congress to the federal agency. This problem has arisen most often with reference to the applicability of State laws to the operation of national banks. Two correlative propositions have governed the decisions in these cases. The first was stated by Justice Miller in First National Bank _v._ Kentucky:[19] "[National banks are] subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the Nation. All their contracts are governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional."[20] In Davis _v._ Elmira Savings Bank,[21] the Court stated the second proposition thus: "National banks are instrumentalities of the Federal Government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. It follows that an attempt, by a State, to define their duties or control the conduct of their affairs is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation or impairs the efficiency of these agencies of the Federal Government to discharge the duties, for the performance of which they were created."[22] Instructive, too, is a comparison of two other decisions. In the first,[23] the Court held that the fact that the Texas and Pacific Railway Company was a corporation organized under a statute of the United States did not remove it from the control of the Texas railroad commission as to business done wholly within the State. In the second,[24] the Court vetoed the attempt of Maryland to require a post office employee to cease driving a United States motor truck in the transportation of mail over a post road until he should obtain a license by submitting to examination before a State official and paying a fee. "Of course," said Justice Holmes, "an employee of the United States does not secure a general immunity from State law while acting in the course of his employment"; but this time the State went too far. The extent to which States may go in regulating contractors who furnish goods or services to the Federal Government is not as clearly established as is their right to tax such dealers. In 1943, a closely divided Court sustained the refusal of the Pennsylvania Milk Control Commission to renew the license of a milk dealer who, in violation of State law, had sold milk to the United States for consumption by troops at an army camp located on land belonging to the State, at prices below the minima established by the Commission.[25] The majority was unable to find in Congressional legislation, or in the Constitution, unaided by Congressional enactment, any immunity from such price-fixing regulations. On the same day, a different majority held that California could not penalize a milk dealer for selling milk to the War Department at less than the minimum price fixed by State law where the sales and deliveries were made in a territory which had been ceded to the Federal Government by the State and were subject to the exclusive jurisdiction of the former.[26] OBLIGATION OF STATE COURTS UNDER THE SUPREMACY CLAUSE The Constitution, laws and treaties of the United States are as much a part of the law of every State as its own local laws and Constitution. Their obligation "is imperative upon the State judges, in their official and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the laws and treaties of the United States--'the supreme law of the land.'"[27] State courts have both the power and the duty to enforce obligations arising under federal law, unless Congress gives the federal courts exclusive jurisdiction. The power of State courts to entertain such suits was affirmed in Claflin _v._ Houseman[28] in 1876, thus setting at rest the doubts which had been raised by an early dictum of Justice Story.[29] In the Claflin case Justice Bradley asserted on behalf of a unanimous court that: "If an Act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court. The fact that a State court derives its existence and functions from the State laws is no reason why it should not afford relief, because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the State as it is to recognize the State laws."[30] When the Supreme Court of Connecticut held that rights created by the Federal Employer's Liability Acts could not be enforced in the courts of that State because the act was contrary to State policy, the Supreme Court unanimously reversed that decision. Said Justice Van Devanter: "The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State."[31] Even if a federal statute is penal in character, a State may not refuse to enforce it if Congress allows it to take concurrent jurisdiction. In Testa _v._ Katt,[32] the Supreme Court reversed a holding of Rhode Island's highest court that, inasmuch as a State need not enforce the penal laws of another jurisdiction, a suit for treble damages for violation of OPA regulations could not be maintained in the courts of the State. Without determining the nature of the statute, it affirmed once more without dissent that "the policy of the federal Act is the prevailing policy in every state."[33] IMMUNITY OF THE FEDERAL JUDICIAL PROCESS It would seem self-evident that a State court cannot interfere with the functioning of a federal tribunal. But this proposition has not always gone unchallenged. Shortly before the Civil War, the Supreme Court of Wisconsin, holding the federal fugitive slave law invalid, ordered a United States marshal to release a prisoner who had been convicted of aiding and abetting the escape of a fugitive slave. In a further act of defiance, the State court instructed its clerk to disregard and refuse obedience to the writ of error issued by the United States Supreme Court. Strongly denouncing this interference with federal authority, Chief Justice Taney held that when a State court is advised, on the return of a writ of _habeas corpus_, that the prisoner is in custody on authority of the United States, it can proceed no further.[34] To protect the performance of its functions against interference by State tribunals, Congress may constitutionally authorize the removal to a federal court of a criminal prosecution commenced in a State court against a revenue officer of the United States on account of any act done under color of his office.[35] In the celebrated case of Cunningham _v._ Neagle,[36] a United States marshal who, while assigned to protect Justice Field, killed the man who had been threatening the life of the latter, was charged with murder by the State of California. Invoking the supremacy clause, the Supreme Court held that a person could not be guilty of a crime under State law for doing what it was his duty to do as an officer of the United States. EFFECT OF LAWS PASSED BY STATES IN INSURRECTION Since the efforts of States to depart from the Union, if successful, would have been _pro tanto_ a destruction of the Constitution,[37] the ordinances of secession adopted by the Confederate States,[38] and all acts of legislation intended to give effect to such ordinances,[39] were treated as absolute nullities. The obligation of every State, as a member of the Union, and the obligation of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired.[40] But acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and domestic relations, governing the course of descents, regulating the conveyance of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, were regarded in general as valid when proceeding from an actual, though unlawful government.[41] The Doctrine of Tax Exemption McCULLOCH _v._ MARYLAND Five years after the decision in McCulloch _v._ Maryland that a State may not tax an instrumentality of the Federal Government, the Court was asked to and did reexamine the entire question in Osborn _v._ Bank of the United States.[42] In that case counsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward two arguments of great importance. In the first place it was "contended, that, admitting Congress to possess the power, this exemption ought to have been expressly asserted in the act of incorporation; and, not being expressed, ought not to be implied by the Court."[43] To which Marshall replied that: "It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance."[44] Secondly the appellants relied "greatly on the distinction between the bank and the public institutions, such as the mint or the post-office. The agents in those offices are, it is said, officers of government, * * * Not so the directors of the bank. The connection of the government with the bank, is likened to that with contractors."[45] Marshall accepted this analogy, but not to the advantage of the appellants. He simply indicated that all contractors who dealt with the Government were entitled to immunity from taxation upon such transactions.[46] Thus not only was the decision of McCulloch _v._ Maryland reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades. APPLICABILITY OF DOCTRINE _IN RE_ FEDERAL SECURITIES, ETC. The first significant extension of the doctrine of the immunity of federal instrumentalities from State taxation came in Weston _v._ Charleston,[47] where Chief Justice Marshall also found in the supremacy clause a bar to State taxation of obligations of the United States. During the Civil War, when Congress authorized the issuance of legal tender notes, it explicitly declared that such notes, as well as United States bonds and other securities, should be exempt from State taxation.[48] A modified version of this section remains on the statute books today.[49] The right of Congress to exempt legal tender notes to the same extent as bonds was sustained in People _v._ Board of Supervisors[50] over the objection that such notes circulated as money and should be taxable in the same way as coin. But a State tax on checks issued by the Treasurer of the United States for interest accrued upon government bonds was sustained since it did not in any wise affect the credit of the National Government.[51] Similarly, the assessment for an _ad valorem_ property tax of an open account for money due under a federal contract,[52] and the inclusion of the value of United States bonds owned by a decedent, in measuring an inheritance tax,[53] were held valid, since neither tax would substantially embarrass the power of the United States to secure credit. Income from federal securities is also beyond the reach of the State taxing power as the cases now stand.[54] Nor can such a tax be imposed indirectly upon the stockholders on such part of the corporate dividends as corresponds to the part of the corporation's income which is not assessed, i.e., income from tax exempt bonds.[55] A State may constitutionally levy an excise tax on corporations for the privilege of doing business, and measure the tax by the property or net income of the corporation, including tax exempt United States securities or the income derived therefrom.[56] The designation of a tax is not controlling.[57] Where a so-called "license tax" upon insurance companies, measured by gross income, including interest on government bonds, was, in effect, a commutation tax levied in lieu of other taxation upon the personal property of the taxpayer, it was still held to amount to an unconstitutional tax on the bonds themselves.[58] TAXATION OF GOVERNMENT CONTRACTORS In the course of his opinion in Osborn _v._ Bank of the United States,[59] Chief Justice Marshall posed the question: "Can a contractor for supplying a military post with provisions, be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed? or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative."[60] One hundred and thirteen years later, the Court did answer the last part of his inquiry in the affirmative. In James _v._ Dravo Contracting Company[61] it held that a State may impose an occupation tax upon an independent contractor, measured by his gross receipts under contracts with the United States. Previously it had sustained a gross receipts tax levied in lieu of a property tax upon the operator of an automobile stage line, who was engaged in carrying the mails as an independent contractor,[62] and an excise tax on gasoline sold to a contractor with the Federal Government and used to operate machinery in the construction of levees in the Mississippi River.[63] Subsequently it has approved State taxes on the net income of a government contractor,[64] income[65] and social security[66] taxes on the operators of bath houses maintained in a National Park under a lease from the United States; sales and use taxes on sales of beverages by a concessionaire in a National Park,[67] and on purchases of materials used by a contractor in the performance of a cost-plus contract with the United States,[68] and a severance tax imposed on a contractor who severed and purchased timber from lands owned by the United States.[69] STATUS OF DOCTRINE TODAY Of a piece with James _v._ Dravo Contracting Co. was the decision in Graves _v._ O'Keefe,[70] handed down two years later. Repudiating the theory "that a tax on income is legally or economically a tax on its source," the Court held that a State could levy a nondiscriminatory income tax upon the salary of an employee of a government corporation. In the opinion of the Court, Justice Stone intimated that Congress could not validly confer such an immunity upon federal employees. He wrote: "The burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the Constitution presupposes; and hence it cannot rightly be deemed to be within an implied restriction upon the taxing power of the national and state governments which the Constitution has expressly granted to one and has confirmed to the other. The immunity is not one to be implied from the Constitution, because if allowed it would impose to an inadmissible extent a restriction on the taxing power which the Constitution has reserved to the state governments."[71] Chief Justice Hughes concurred in the result without opinion. Justices Butler and McReynolds dissented and Justice Frankfurter wrote a concurring opinion in which he reserved judgment as to "whether Congress may, by express legislation, relieve its functionaries from their civic obligations to pay for the benefits of the State governments under which they live...."[72] _AD VALOREM_ TAXES UNDER THE DOCTRINE Property owned by a federally chartered corporation engaged in private business is subject to State and local _ad valorem_ taxes. This was conceded in McCulloch _v._ Maryland,[73] and confirmed a half century later with respect to railroads incorporated by Congress.[74] Similarly, a property tax may be levied against the lands under water which are owned by a person holding a license under the Federal Water Power Act.[75] Land conveyed by the United States to a corporation for dry dock purposes was subject to a general property tax, despite a reservation in the conveyance of a right to free use of the dry dock and a provision for forfeiture in case of the continued unfitness of the dry dock for use, or the use of the land for other purposes.[76] Where equitable title has passed to the purchaser of land from the Government, a State may tax the equitable owner on the full value thereof, despite the retention of legal title by the Government,[77] but the equitable title passes otherwise.[78] Recently a divided Court held that where the Government purchased movable machinery and leased it to a private contractor, the lessee could not be taxed on the full value of the equipment.[79] In the pioneer case of Van Brocklin _v._ Tennessee,[80] the State was denied the right to sell for taxes lands which the United States owned at the time the taxes were levied, but in which it had ceased to have any interest at the time of sale. Nor can a State assess land in the hands of private owners for benefits from a road improvement completed while it was owned by the United States.[81] PUBLIC PROPERTY AND FUNCTIONS Property owned by the United States is, of course, wholly immune to State taxation.[82] No State can regulate, by the imposition of an inspection fee, any activity carried on by the United States directly through its own agents and employees.[83] An early case whose authority is now uncertain held invalid a flat rate tax on telegraphic messages, as applied to messages sent by public officers on official business.[84] FISCAL INSTITUTIONS; LEGISLATIVE EXEMPTIONS Fiscal institutions chartered by Congress, their shares and their property, are taxable only with the consent of Congress and only in conformity with the restrictions it has attached to its consent.[85] Immediately after the Supreme Court construed the statute authorizing the States to tax national bank shares as allowing a tax on the preferred shares of such a bank held by the Reconstruction Finance Corporation,[86] Congress passed a law exempting such shares from taxation. The Court upheld this measure saying, "when Congress authorized the States to impose such taxation, it did no more than gratuitously grant them political power which they theretofore lacked. Its sovereign power to revoke the grant remained unimpaired, the grant of the privilege being only a declaration of legislative policy changeable at will."[87] In Pittman _v._ Home Owners' Loan Corporation[88] the Court sustained the power of Congress under the necessary and proper clause to immunize the activities of the Corporation from state taxation; and in Federal Land Bank _v._ Bismarck Lumber Co.,[89] the like result was reached with respect to an attempt by the State to impose a retail sales tax on a sale of lumber and other building materials to the bank for use in repairing and improving property that had been acquired by foreclosure of mortgages. The State's principal argument proceeded thus: "Congress has authority to extend immunity only to the governmental functions of the federal land banks; the only governmental functions of the land banks are those performed by acting as depositaries and fiscal agents for the federal government and providing a market for governmental bonds; all other functions of the land banks are private; petitioner here was engaged in an activity incidental to its business of lending money, an essentially private function; therefore § 26 cannot operate to strike down a sales tax upon purchases made in furtherance of petitioner's lending functions."[90] The Court rejected this argument and invalidated the tax saying: "The argument that the lending functions of the federal land banks are proprietary rather than governmental misconceives the nature of the federal government with respect to every function which it performs. The federal government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental. * * * It also follows that, when Congress constitutionally creates a corporation through which the federal government lawfully acts, the activities of such corporation are governmental."[91] However, in the absence of federal legislation, a state law laying a percentage tax on the users of safety deposit services, measured by the banks' charges therefor, was held valid as applied to national banks. The tax, being on the user, did not, the Court held, impose an intrinsically unconstitutional burden on a federal instrumentality.[92] THE ATOMIC ENERGY COMMISSION; "ACTIVITIES" OF In the recent case of Carson _v._ Roane-Anderson Co.,[93] the Court was confronted with an attempt on the part of Tennessee to apply its tax on the use within the State of goods purchased elsewhere to a private contractor for the Atomic Energy Commission and to vendors of such contractors. This, the Court held, could not be done under Section 9 b of the Atomic Energy Commission Act, which provides in part that: "The Commission, and the property, activities, and income of the Commission, are hereby expressly exempted from taxation in any manner or form by any State, county, municipality, or any subdivision thereof."[94] The power of exemption, said the Court, "stems from the power to preserve and protect functions validly authorized--the power to make all laws necessary and proper for carrying into execution the powers vested in Congress."[95] The term, "activities," as used in the Act described, was held to be nothing less "than all of the functions of the Commission."[96] ROYALTIES; A JUDICIAL ANTICLIMAX In 1928 the Court went so far as to hold that a State could not tax as income royalties for the use of a patent issued by the United States.[97] This proposition was soon overruled in Fox Film Corp. _v._ Doyal,[98] where a privilege tax based on gross income and applicable to royalties from copyrights was upheld. Likewise a State may lay a franchise tax on corporations, measured by the net income from all sources, and applicable to income from copyright royalties.[99] IMMUNITY OF LESSEES OF INDIAN LANDS Another line of anomalous decisions conferring tax immunity upon lessees of restricted Indian lands was overruled in 1949. The first of these cases, Choctaw O. & G.R. Co. _v._ Harrison,[100] held that a gross production tax on oil, gas and other minerals was an occupational tax, and, as applied to a lessee of restricted Indian lands, was an unconstitutional burden on such lessee, who was deemed to be an instrumentality of the United States. Next the Court held the lease itself a federal instrumentality immune from taxation.[101] A modified gross production tax imposed in lieu of all _ad valorem_ taxes was invalidated in two _per curiam_ decisions.[102] In Gillespie _v._ Oklahoma[103] a tax upon the net income of the lessee derived from sales of his share of oil produced from restricted lands also was condemned. Finally a petroleum excise tax upon every barrel of oil produced in the State was held inapplicable to oil produced on restricted Indian lands.[104] In harmony with the trend to restricting immunity implied from the Constitution to activities of the Government itself, the Court overruled all these decisions in Oklahoma Tax Comm'n _v._ Texas Co. and held that a lessee of mineral rights in restricted Indian lands was subject to nondiscriminatory gross production and excise taxes, so long as Congress did not affirmatively grant them immunity.[105] SUMMATION AND EVALUATION Although McCulloch _v._ Maryland and Gibbons _v._ Ogden were expressions of a single thesis--the supremacy of the National Government--their development after Marshall's death has been sharply divergent. During the period when Gibbons _v._ Ogden was eclipsed by the theory of dual federalism, the doctrine of McCulloch _v._ Maryland was not merely followed but greatly extended as a restraint on State interference with federal instrumentalities. Conversely, the Court's recent return to Marshall's conception of the powers of Congress has coincided with a retreat from the more extreme positions taken in reliance upon McCulloch _v._ Maryland. Today the application of the supremacy clause is becoming, to an ever increasing degree, a matter of statutory interpretation--a determination of whether State regulations can be reconciled with the language and policy of federal enactments. In the field of taxation, the Court has all but wiped out the private immunities previously implied from the Constitution without explicit legislative command. Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g., that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed. Clause 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. Oath of Office POWER OF CONGRESS IN RESPECT TO OATHS Congress may require no other oath of fidelity to the Constitution, but it may superadd to this oath such other oath of office as its wisdom may require.[106] It may not, however, prescribe a test oath as a qualification for holding office, such an act being in effect an _ex post facto_ law;[107] and the same rule holds in the case of the States.[108] NATIONAL DUTIES OF STATE OFFICERS Commenting in The Federalist No. 27 on the requirement that State officers, as well as members of the State legislatures, shall be bound by oath or affirmation to support this Constitution, Hamilton wrote: "Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government _as far as its just and constitutional authority extends_; and it will be rendered auxiliary to the enforcement of its laws." The younger Pinckney had expressed the same idea on the floor of the Philadelphia Convention: "They [the States] are the instruments upon which the Union must frequently depend for the support and execution of their powers, * * *"[109] Indeed, the Constitution itself lays many duties, both positive and negative, upon the different organs of State government,[110] and Congress may frequently add others, provided it does not require the State authorities to act outside their normal jurisdiction. Early Congressional legislation contains many illustrations of such action by Congress. The Judiciary Act of 1789[111] left the State courts in sole possession of a large part of the jurisdiction over controversies between citizens of different States and in concurrent possession of the rest. By other sections of the same act State courts were authorized to entertain proceedings by the United States itself to enforce penalties and forfeitures under the revenue laws, while any justice of the peace or other magistrate of any of the States was authorized to cause any offender against the United States to be arrested and imprisoned or bailed under the usual mode of process. Even as late as 1839, Congress authorized all pecuniary penalties and forfeitures under the laws of the United States to be sued for before any court of competent jurisdiction in the State where the cause of action arose or where the offender might be found.[112] Pursuant also of the same idea of treating State governmental organs as available to the National Government for administrative purposes, the act of 1793 entrusted the rendition of fugitive slaves in part to national officials and in part of State officials and the rendition of fugitives from justice from one State to another exclusively to the State executives.[113] Certain later acts empowered State courts to entertain criminal prosecutions for forging paper of the Bank of the United States and for counterfeiting coin of the United States,[114] while still others conferred on State judges authority to admit aliens to national citizenship and provided penalties in case such judges should utter false certificates of naturalization--provisions which are still on the statute books.[115] With the rise of the doctrine of States Rights and of the equal sovereignty of the States with the National Government, the availability of the former as instruments of the latter in the execution of its power, came to be questioned.[116] In Prigg _v._ Pennsylvania,[117] decided in 1842, the constitutionality of the provision of the act of 1793 making it the duty of State magistrates to act in the return of fugitive slaves was challenged; and in Kentucky _v._ Dennison,[118] decided on the eve of the Civil War, similar objection was leveled against the provision of the same act which made it "the duty" of the Chief Executive of a State to render up a fugitive from justice upon the demand of the Chief Executive of the State from which the fugitive had fled. The Court sustained both provisions, but upon the theory that the cooperation of the State authorities was purely voluntary. In the Prigg Case the Court, speaking by Justice Story, said: "* * * state magistrates may, if they choose, exercise the authority, [conferred by the act] unless prohibited by state legislation."[119] In the Dennison Case, "the duty" of State executives in the rendition of fugitives from justice was construed to be declaratory of a "moral duty." Said Chief Justice Taney for the Court: "The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the Government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear, that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. It is true," the Chief Justice conceded, "that in the early days of the Government, Congress relied with confidence upon the co-operation and support of the States, when exercising the legitimate powers of the General Government, and were accustomed to receive it, [but this, he explained, was] upon principles of comity, and from a sense of mutual and common interest, where no such duty was imposed by the Constitution."[120] Eighteen years later, in Ex parte Siebold[121] the Court sustained the right of Congress, under article I, section 4, paragraph 1 of the Constitution, to impose duties upon State election officials in connection with a Congressional election and to prescribe additional penalties for the violation by such officials of their duties under State law. While the doctrine of the holding is expressly confined to cases in which the National Government and the States enjoy "a concurrent power over the same subject matter," no attempt is made to catalogue such cases. Moreover, the outlook of Justice Bradley's opinion for the Court is decidedly nationalistic rather than dualistic, as is shown by the answer made to the contention of counsel "that the nature of sovereignty is such as to preclude the joint cooperation of two sovereigns, even in a matter in which they are mutually concerned." To this Justice Bradley replied: "As a general rule, it is no doubt expedient and wise that the operations of the State and national governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Constitution itself. We cannot yield to such a transcendental view of state sovereignty. The Constitution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity."[122] Three years earlier the Court, speaking also by Justice Bradley, sustained a provision of the Bankruptcy Act of 1867 giving assignees a right to sue in State courts to recover the assets of a bankrupt. Said the Court: The statutes of the United States are as much the law of the land in any State as are those of the State; and although exclusive jurisdiction for their enforcement may be given to the federal courts, yet where it is not given, either expressly or by necessary implication, the State courts having competent jurisdiction in other respects, may be resorted to.[123] The Selective Service Act of 1917[124] was enforced to a great extent through State "employees who functioned under State supervision";[125] and State officials were frequently employed by the National Government in the enforcement of National Prohibition.[126] Nowadays, there is constant cooperation, both in peacetime and in wartime, in many fields between National and State Officers and official bodies.[127] This relationship obviously calls for the active fidelity of both categories of officialdom to the Constitution. Notes [1] On the supremacy of treaties over conflicting State law, _see_ pp. 414-418. The supremacy due to treaties has, within recent years, been extended to certain executive agreements. _See_ Justice Douglas in United States _v._ Pink, 315 U.S. 203 (1942). As to the supremacy of Congressional legislation implementing the national judicial power, _see_ Tennessee _v._ Davis, 100 U.S. 257, 266-267 (1880); and Ex parte Siebold, 100 U.S. 404 (1880). [2] 4. Wheat. 316 (1819). Marshall had anticipated his argument in this case in 1805, in United States _v._ Fisher, 2 Cr. 358 (1805), in which he upheld the act of 1797 asserting for the United States a priority of its claims over those of the States. _See_ Chief Justice Taft's opinion in Spokane County _v._ United States, 279 U.S. 80, 87 (1929), where United States _v._ Fisher is followed; _also_ 1 Warren, Supreme Court in United States History, 372, 538 ff. [3] 9 Wheat. 1 (1824). [4] 4 Wheat. 316, 436 (1819). [5] 9 Wheat. 1, 210-211 (1824). [6] 11 Pet. 102 (1837). [7] Ibid. 139. [8] Ibid. 161. [9] 5 How. 504 (1847). [10] Ibid. 573-574. [11] National Labor Relations Board _v._ Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937). [12] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ Davis, 301 U.S. 619 (1937). [13] United States _v._ Darby, 312 U.S. 100 (1941); _see_ especially ibid. 113-124. [14] Sola Electric Co. _v._ Jefferson Electric Co., 317 U.S. 173, 170 (1942); Hill _v._ Florida, 325 U.S. 538 (1945); _see also_ Testa _v._ Katt, 330 U.S. 380, 391 (1947); Francis _v._ Southern Pacific Co. 333 U.S. 445 (1918); and Bus Employers _v._ Wisconsin Board, 340 U.S. 383 (1951). [15] Southern Pacific Co. _v._ Arizona, 825 U.S. 761 (1945); Rice _v._ Santa Fe Elevator Co., 331 U.S. 218, 230 (1947); Auto Workers _v._ Wis. Board, 336 U.S. 245, 253 (1949); United States _v._ Burnison, 339 U.S. 87, 91-92 (1950). [16] Ohio _v._ Thomas, 173 U.S. 276, 283 (1899). [17] Johnson _v._ Maryland, 254 U.S. 51 (1920). [18] Arizona _v._ California, 283 U.S. 423, 451 (1931). [19] 9 Wall. 353 (1870). [20] Ibid. 362. [21] 161 U.S. 275 (1896). [22] Ibid. 283. [23] Reagan _v._ Mercantile Trust Co., 154 U.S. 413 (1894). [24] Johnson _v._ Maryland, 254 U.S. 51, 56 (1920). [25] Penn Dairies _v._ Milk Control Comm'n., 318 U.S. 261 (1943). [26] Pacific Coast Dairy _v._ Dept. of Agriculture, 318 U.S. 285 (1943). [27] Martin _v._ Hunter's Lessee, 1 Wheat. 304, 335 (1816). [28] 93 U.S. 130 (1876). [29] Martin _v._ Hunter's Lessee, 1 Wheat. 304, 335 (1816). [30] 93 U.S. 130, 137 (1876). [31] Mondou _v._ New York, N.H. & H.R. Co., 223 U.S. 1, 57 (1912). [32] 330 U.S. 386 (1947). [33] Ibid. 393. [34] Ableman _v._ Booth, 21 How. 506, 523 (1859), followed in United States _v._ Tarble, 13 Wall. 397 (1872). [35] Tennessee _v._ Davis, 100 U.S. 257 (1880); _see also_ Maryland _v._ Soper, 270 U.S. 36 (1926). [36] 135 U.S. 1 (1890). [37] Keith _v._ Clark, 97 U.S. 454, 461 (1878). [38] White _v._ Cannon, 6 Wall. 443, 450 (1868). _See also_ Hickman _v._ Jones, 9 Wall. 197 (1870); Dewing _v._ Perdicaries, 96 U.S. 193, 195 (1878). [39] Ford _v._ Surget, 97 U.S. 594, 604 (1878); United States _v._ Keehler, 9 Wall. 83, 86 (1870). [40] Texas _v._ White, 7 Wall. 700, 726 (1869). [41] Ibid. 733. _See also_ Horn _v._ Lockhart, 17 Wall. 570, 580 (1873); Thomas _v._ Richmond, 12 Wall. 349, 357 (1871); White _v._ Hart, 13 Wall. 646 (1872); United States _v._ Home Ins. Co., 22 Wall. 99 (1875); Taylor _v._ Thomas, 22 Wall. 479 (1875); and Huntington _v._ Texas, 16 Wall. 402 (1873). [42] 9 Wheat. 788 (1924). [43] Ibid. 865. [44] Ibid. [45] Ibid. 866. [46] Ibid. 867. [47] 2 Pet. 449 (1829), followed in New York ex rel. Bank of Commerce _v._ Comrs. of Taxes and Assessments, 2 Bl. 620 (1863). [48] 12 Stat. 710 (1863). [49] 31 U.S.C. § 742 (1946). [50] 7 Wall. 26 (1869). [51] Hibernia Sav. & L. Soc. _v._ San Francisco, 200 U.S. 310, 315 (1906). [52] Smith _v._ Davis, 323 U.S. 111 (1944). [53] Plummer _v._ Coler, 178 U.S. 115 (1900); Blodgett _v._ Silberman, 277 U.S. 1, 12 (1928). [54] Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136, 140 (1927). [55] Miller _v._ Milwaukee, 272 U.S. 713 (1927). [56] Provident Inst. for Savings _v._ Massachusetts, 6 Wall. 611 (1868); Society for Savings _v._ Coite, 6 Wall. 594 (1868); Hamilton Mfg. Co. _v._ Massachusetts, 6 Wall. 632 (1868); Home Ins. Co. _v._ New York, 134 U.S. 594 (1890). [57] Macallen _v._ Massachusetts, 279 U.S. 620, 625 (1929). [58] Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136 (1927). [59] 9 Wheat. 738 (1824). [60] Ibid. 867. [61] 302 U.S. 134 (1937). [62] Alward _v._ Johnson, 282 U.S. 509 (1931). [63] Trinityfarm Const. Co. _v._ Grosjean, 291 U.S. 466 (1934). [64] Atkinson _v._ Tax Commission, 303 U.S. 20 (1938). [65] Superior Bath House Co. _v._ McCarroll, 312 U.S. 176 (1941). [66] Buckstaff Bath House _v._ McKinley, 308 U.S. 358 (1939). [67] Collins _v._ Yosemite Park & Curry Co., 304 U.S. 518 (1938). [68] Alabama _v._ King & Boozer, 314 U.S. 1 (1941), overruling Panhandle Oil Co. _v._ Knox, 277 U.S. 218 (1928) and Graves _v._ Texas Co., 298 U.S. 393 (1936). _See also_ Curry _v._ United States, 314 U.S. 14 (1941). [69] Wilson _v._ Cook, 327 U.S. 474 (1946). [70] 306 U.S. 466 (1939), followed in State Tax Comm'n. _v._ Van Cott, 306 U.S. 511 (1939). This case overruled by implication Dobbins _v._ Erie County, 16 Pet. 435 (1842) and New York ex rel. Rogers _v._ Graves, 299 U.S. 401 (1937), which held the income of federal employees to be immune from State taxation. [71] 306 U.S. 466, 487 (1939). [72] Ibid. 492. [73] 4 Wheat. 316, 426 (1819). [74] Thompson _v._ Union P.R. Co., 9 Wall. 579, 588 (1870); Railroad Co. _v._ Peniston, 18 Wall. 5, 31 (1873). [75] Susquehanna Power Co. _v._ State Tax Comm'n., 283 U.S. 291 (1931). [76] Baltimore Shipbuilding & Dry Dock Co. _v._ Baltimore, 195 U.S. 375 (1904). [77] Northern P.R. Co. _v._ Myers, 172 U.S. 589 (1899); New Brunswick _v._ United States, 276 U.S. 547 (1928). [78] Irwin _v._ Wright, 258 U.S. 219 (1922). [79] United States _v._ Allegheny County, 322 U.S. 174 (1944). [80] 117 U.S. 151 (1886). [81] Lee _v._ Osceola & L. River Road Improv. Dist, 268 U.S. 643 (1925). [82] Clallam County _v._ United States, 263 U.S. 341 (1923). _See also_ Cleveland _v._ United States, 323 U.S. 329, 333 (1945). [83] Mayo _v._ United States, 319 U.S. 441 (1943). [84] Western U. Teleg. Co. _v._ Texas, 105 U.S. 460, 464 (1882). [85] Des Moines Nat. Bank _v._ Fairweather, 263 U.S. 103, 106 (1923); Owensboro Nat. Bank _v._ Owensboro, 173 U.S. 664, 669 (1899); First Nat. Bank _v._ Adams, 258 U.S. 362 (1922). [86] Baltimore Nat. Bank _v._ State Tax Comm'n., 297 U.S. 209 (1936). [87] Maricopa County _v._ Valley National Bank, 318 U.S. 357, 362 (1943). [88] 308 U.S. 21 (1939). [89] 314 U.S. 95 (1941). [90] Ibid. 101. [91] Ibid. 102; _cf._ 9 Wheat. 738, 864-865 (1824). [92] Colorado Nat. Bank _v._ Bedford, 310 U.S. 41 (1940). [93] 342 U.S. 232 (1952). [94] 60 Stat. 765; 42 U.S.C. § 1809 (b). [95] 342 U.S. 232, 234. [96] Ibid. 236. [97] Long _v._ Rockwood, 277 U.S. 142 (1928). [98] 286 U.S. 123 (1932). [99] Educational Films Corp. _v._ Ward, 282 U.S. 379 (1931). [100] 235 U.S. 292 (1944). [101] Indian Territory Illuminating Oil Co. _v._ Oklahoma, 240 U.S. 522 (1916). [102] Howard _v._ Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. _v._ Howard, 248 U.S. 549 (1919). [103] 257 U.S. 501 (1922). [104] Oklahoma Tax Comm'n _v._ Barnsdall Refiners, 296 U.S. 521 (1936). [105] 330 U.S. 342 (1949). Justice Rutledge, speaking for the Court, sketched the history of the immunity of lessees of Indian lands from State taxation, which he found to stem from early rulings that tribal lands are themselves immune (The Kansas Indians, 5 Wall. 737 (1867); The New York Indians, 5 Wall. 761 (1867)). One of the first steps taken to curtail the scope of the immunity was Shaw _v._ Gibson-Zahniser Oil Corp., 276 U.S. 575 (1928), which held that lands outside a reservation, though purchased with restricted Indian funds, were subject to State taxation. Congress soon upset the decision, however, and its act was sustained in Board of County Comm'rs _v._ Seber, 318 U.S. 705 (1943). [106] McCulloch _v._ Maryland, 4 Wheat. 316, 416 (1819). [107] Ex parte Garland, 4 Wall. 333, 337 (1867). [108] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867). [109] The Federalist No. 27, p. 123; I Farrand Records, 404. [110] _See_ Article I, Section III, Paragraph 1; Section IV, Paragraph 1; Section X; Article II, Section I, Paragraph 2; Article III, Section II, Paragraph 2; Article IV, Sections I and II; Article V; Amendments XIII, XIV, XV, XVII, and XIX. [111] 1 Stat. 73 (1789). [112] 5 Stat. 322 (1839). [113] 1 Stat. 302 (1793). [114] 2 Stat. 404 (1806). [115] _See_ 2 Kent's Commentaries, 64-65 (1826); 34 Stat. 590, 602 (1906); 8 U.S.C. §§ 357, 379; 18 ibid. § 135 (1934); _also_ Holmgren _v._ United States, 217 U.S. 509 (1910). [116] For the development of opinion especially on the part of State courts, adverse to the validity of the above mentioned legislation, _see_ 1 Kent's Commentaries, 396-404 (1826). [117] 16 Pet. 539 (1842). [118] 24 How. 66 (1861). [119] 16 Pet. at 622. [120] 24 How. at 107-108. [121] 100 U.S. 371 (1880). [122] Ibid. 392. [123] Claflin _v._ Houseman, 93 U.S. 130, 136, 137 (1876); followed in Second Employers' Liability Cases, 223 U.S. 1, 55-59 (1912). [124] 40 Stat. 76 (1917). [125] Jane Perry Clark, The Rise of a New Federalism, 91 (Columbia University Press, 1938). [126] _See_ James Hart in 13 Virginia Law Review, 86-107 (1926) discussing President Coolidge's order of May 8, 1926, for Prohibition enforcement. [127] Clark, New Federalism, cited in note 2 above; [Transcriber's Note: Reference is to Footnote 125, above.] Corwin, Court Over Constitution, 148-168 (Princeton University Press, 1938). ARTICLE VII RATIFICATION Article VII The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. IN GENERAL In Owings _v._ Speed,[1] the question at issue was whether the Constitution of the United States operated upon an act of Virginia passed in 1788. The Court held it did not, stating in part: "The Conventions of nine States having adopted the Constitution, Congress, in September or October, 1788, passed a resolution in conformity with the opinions expressed by the Convention, and appointed the first Wednesday in March of the ensuing year as the day, and the then seat of Congress as the place, 'for commencing proceedings under the Constitution.' "Both Governments could not be understood to exist at the same time. The new Government did not commence until the old Government expired. It is apparent that the Government did not commence on the Constitution being ratified by the ninth State; for these ratifications were to be reported to Congress, whose continuing existence was recognized by the Convention, and who were requested to continue to exercise their powers for the purpose of bringing the new Government into operation. In fact, Congress did continue to act as a Government until it dissolved on the 1st of November, by the successive disappearance of its Members. It existed potentially until the 2d of March, the day preceding that on which the Members of the new Congress were directed to assemble. "The resolution of the Convention might originally have suggested a doubt, whether the Government could be in operation for every purpose before the choice of a President; but this doubt has been long solved, and were it otherwise, its discussion would be useless, since it is apparent that its operation did not commence before the first Wednesday in March 1789 * * *" Notes [1] 5 Wheat. 420, 422-423 (1820). AMENDMENTS TO THE CONSTITUTION AMENDMENTS NOS. 1-10 Bill of Rights Page History 749 Ordinance of 1787 749 Formulation and adoption of the bill of rights 750 Bill of rights and the States: Barron _v._ Baltimore 750 Bill of rights and Amendment XIV 750 AMENDMENTS TO THE CONSTITUTION AMENDMENTS NOS. 1-10 Bill of Rights HISTORY: THE ORDINANCE OF 1787 While the Constitutional Convention was engaged in drafting the Constitution, the Congress of the Confederation included in the Ordinance for the government of the Northwest Territory, adopted July 13, 1787, the following provisions: "It is hereby ordained and declared by the authority aforesaid, that the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit: "Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory. "Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, _bona fide_, and without fraud, previously formed. "Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. * * * * * "Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: * * *"[1] FORMULATION AND ADOPTION OF THE BILL OF RIGHTS Two months later, at the very end of its labors, the Constitutional Convention rejected, with scant consideration, a proposal by Gerry and Mason, to prepare a bill of rights.[2] This omission furnished the principal argument urged against ratification of the Constitution. Hamilton replied with the following ingenious argument: "* * * bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. * * * It is evident, therefore, that according to their primitive signification, they have no application to the constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."[3] The people did not find this line of reasoning persuasive. Several States ratified only after Washington put forward the suggestion that the desired guarantees could be added by amendment.[4] No less than 124 amendments were proposed by the States.[5] Shortly after the First Congress convened, Madison introduced a series of amendments,[6] designed "to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable * * *"[7] After prolonged debate seventeen proposals were accepted by the House two of which were rejected by the Senate. The remainder were reduced to twelve in number, all but two of which were ratified by the requisite number of States.[8] THE BILL OF RIGHTS AND THE STATES: BARRON _v._ BALTIMORE One of the amendments which the Senate refused to accept--the one which Madison declared to be "the most valuable of the whole list"[9]--read as follows: "The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State."[10] The demand for assurance of these rights against encroachment by the States would not die. In spite of the deliberate rejection of Madison's proposal the contention that the first Ten Amendments were applicable to the States was repeatedly pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron _v._ Baltimore[11] in 1833, the argument was consistently rejected. Nevertheless the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection. Expression such as the statement of Justice Miller in Citizens Savings and Loan Association _v._ Topeka that: "It must be conceded that there are * * * rights in every free government beyond the control of the States"[12] probably account for the fact, reported by Charles Warren that: "In at least twenty cases between 1877 and 1907, the Court was required to rule upon this point and to reaffirm Marshall's decision of 1833, * * *"[13] THE BILL OF RIGHTS AND AMENDMENT XIV After the adoption of the Fourteenth Amendment, a fresh attack was launched on that front. The rights assured against encroachment by the Federal Government were claimed as privileges and immunities which no State may deny to any citizen.[14] As early as 1884 the further contention was made that the procedural safeguards prescribed by these articles are essential ingredients of due process of law.[15] For many years, the Court continued to reject these arguments also, over the vigorous and prophetic dissents of Justice Harlan. With respect to the due process clause it held that these words have the same meaning in the Fourteenth Amendment as in the Fifth, and hence do not embrace the other rights more specifically enumerated in the latter, there being no superfluous language in the Constitution.[16] In 1897, however, it retreated from this position to the extent of holding that the Fifth Amendment's explicit guarantee against the taking of private property without just compensation is included in the due process clause of the Fourteenth.[17] Later cases have established that the terms, "liberty" and "due process of law" as used in Amendment XIV, render available against the States certain fundamental rights guaranteed accused persons in the Bill of Rights[18] and the substantive rights which are protected against Congress by Amendment I.[19] Notes [1] 1 Stat. 51 n. [2] Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, V, 538 (1836). [3] The Federalist No. 84. [4] McLaughlin, A Constitutional History of the United States, 203 (1936). [5] Ames, The Proposed Amendments to the Constitution, 19 (1896). [6] Annals of Congress, I, 424, 433. [7] Monongahela Navigation Co. _v._ United States, 148 U.S. 312, 324 (1893). [8] Ames, _op. cit._, 184, 185 (1896). [9] Annals of Congress, 1, 755. [10] Ibid. [11] 7 Pet. 243 (1833); Lessee of Livingston _v._ Moore, 7 Pet. 469 (1833); Permoli _v._ New Orleans, 3 How. 589, 609 (1845); Fox _v._ Ohio, 5 How. 410 (1847); Smith _v._ Maryland, 18 How. 71 (1855); Withers _v._ Buckley, 20 How. 84 (1858); Pervear _v._ Massachusetts, 5 Wall. 475 (1867); Twitchell _v._ Pennsylvania, 7 Wall. 321 (1869). [12] 20 Wall. 655, 669 (1875). [13] Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv. L. Rev., 431, 436 (1926). [14] Slaughter-House Cases, 16 Wall. 36 (1873); Spies _v._ Illinois, 123 U.S. 131 (1887); O'Neil _v._ Vermont, 144 U.S. 323 (1892); Maxwell _v._ Dow, 176 U.S. 581 (1900); Patterson _v._ Colorado, 205 U.S. 454 (1907); Twining _v._ New Jersey, 211 U.S. 78 (1908). [15] Hurtado _v._ California, 110 U.S. 516 (1884). [16] Ibid. 534, 535. [17] Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897). [18] _See_ Twining _v._ New Jersey, 211 U.S. 78 (1908); Adamson _v._ California, 332 U.S. 46 (1947). [19] _See_ Gitlow _v._ New York, 268 U.S. 652 (1925); Beauharnais _v._ Illinois, 343 U.S. 250, 288 (1952). AMENDMENT 1 RELIGION, FREE SPEECH, ETC. Page Absorption of Amendment I into the Fourteenth Amendment 757 "An establishment of religion" 758 "No preference" doctrine 758 "Wall of separation" doctrine 759 Zorach Case 762 Permissible monetary aids to religion 763 Free exercise of religion; dimensions 764 Parochial schools 765 Free exercise of religion; federal restraints 765 Free exercise of religion; State and local restraints 766 Free exercise of religion; obligations of citizenship 768 Freedom of speech and press 769 Blackstonian background 769 Effect of Amendment I on the common law 769 Amendment XIV and Blackstone 771 Clear and present danger rule, meaning 772 Contrasting operation of the common law rule 772 Emergence of the clear and present test 773 Gitlow and Whitney Cases 775 Acceptance of the clear and present danger test 777 Police power and clear and present danger 777 Public order 777 Public morals 779 Picketing and clear and present danger 781 Contempt of court and clear and present danger 783 Freedom of speech and press in public parks and streets 784 Censorship 786 Clear and present danger test: judicial diversities 788 Taxation 792 Federal restraints on freedom of speech and press 792 Regulations of Business and Labor Activities 792 Regulation of political activities of federal employees 793 Legislative protection of the armed forces and the war power 794 Loyalty regulations: The Douds Case 794 The Case of the Eleven Communists 795 Subversive organizations 801 Recent state legislation 801 Loyalty tests 801 Group libel 802 Censorship of the mails 804 Rights of assembly and petition 805 Restraints on the right of petition 806 The Cruikshank Case 807 Hague _v._ C.I.O. 808 Recent cases 809 Lobbying and the right of petition 810 RELIGION, FREE SPEECH, ETC. Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Absorption of Amendment I Into the Fourteenth Amendment Eventually the long sought protection for certain substantive personal rights was obtained by identifying them with the "liberty" which States cannot take away without due process of law. The shift in the Court's point of view was made known quite casually in Gitlow _v._ New York,[1] where, although affirming a conviction for violation of a State statute prohibiting the advocacy of criminal anarchy, it declared that: "For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."[2] This dictum became, two years later, accepted doctrine when the Court invalidated a State law on the ground that it abridged freedom of speech contrary to the due process clause of Amendment XIV.[3] Subsequent decisions have brought the other rights safeguarded by the First Amendment, freedom of religion,[4] freedom of the press,[5] and the right of peaceable assembly,[6] within the protection of the Fourteenth. In consequence of this development the cases dealing with the safeguarding of these rights against infringement by the States are included in the ensuing discussion of the First Amendment. An Establishment of Religion THE "NO PREFERENCE" DOCTRINE The original proposal leading to the First Amendment was introduced into the House of Representatives by James Madison, and read as follows: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed."[7] This was altered in the House to read: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."[8] In the Senate the above formula was replaced by the following; "Congress shall make no law establishing articles of religion."[9] The conference committee of the two houses adopted the House proposal, but with the neutral term "respecting an establishment," etc., taking the place of the original sweeping ban against any law "establishing religion."[10] Explaining this phraseology, in his Commentaries, Story asserted that the purpose of the amendment was not to discredit the then existing State establishments of religion, but rather "to exclude from the National Government all power to act on the subject." He wrote: "The situation, * * *, of the different States equally proclaimed the policy as well as the necessity of such an exclusion. In some of the States, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship."[11] For the rest, Story contended, the no establishment clause, while it inhibited Congress from giving preference to any denomination of the Christian faith, was not intended to withdraw the Christian religion as a whole from the protection of Congress. He said: "Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."[12] As late as 1898 Cooley expounded the no establishment clause as follows: "By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others (citing 1 Tuck. Bl. Com. App. 296; 2 _id._, App. Note G.). It was never intended by the Constitution that the government should be prohibited from recognizing religion, * * * where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects."[13] THE "WALL OF SEPARATION" DOCTRINE In 1802 President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut in which he declared that it was the purpose of the First Amendment to build "a wall of separation between Church and State,"[14] and in Reynolds _v._ United States,[15] the first Anti-Mormon Case, Chief Justice Waite, speaking for the unanimous Court, characterized this as "almost an authoritative declaration of the scope and effect of the amendment," one which left Congress "free to reach actions which were in violation of social duties or subversive of good order."[16] Recently the Court has given Jefferson's "almost authoritative" pronouncement a greatly enlarged application. Speaking by Justice Black, a sharply divided Court sustained in 1947 the right of local authorities in New Jersey to provide free transportation for children attending parochial schools,[17] but accompanied its holding with these warning words, which appear to have had the approval of most of the Justices: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations of groups and _vice versa_."[18] And a year later a nearly unanimous Court overturned on the above grounds a "released time" arrangement under which the Champaign, Illinois Board of Education agreed that religious instruction should be given in the local schools to pupils whose parents signed "request cards." The classes were to be conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance records were kept and reported to the school authorities in the same way as for other classes; and pupils not attending the religious-instruction classes were required to continue their regular secular studies.[19] Said Justice Black, speaking for the Court: "Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State."[20] Justice Frankfurter presented a concurring opinion for himself and Justices Jackson, Rutledge and Burton. "We are all agreed," it begins, "that the First and Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church.'"[21] What ensues is a well documented account of the elimination of sectarianism from the American school system which is reinterpreted as a fight for the secularization of public supported education.[22] Facing then the emergence of the "released time" expedient,[23] Justice Frankfurter characterizes it as a "conscientious attempt to accommodate the allowable functions of Government and the special concerns of the Church within the framework of our Constitution."[24] Elsewhere in his opinion he states: "Of course, 'released time' as a generalized conception, undefined by differentiating particularities, is not an issue for Constitutional adjudication. * * * The substantial differences among arrangements lumped together as 'released time' emphasize the importance of detailed analysis of the facts to which the Constitutional test of Separation is to be applied. How does 'released time' operate in Champaign?"[25] And again: "We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 'released time,' present situations differing in aspects that may well be constitutionally crucial. Different forms which 'released time' has taken during more than thirty years of growth include programs which, like that before us, could not withstand the test of the Constitution; others may be found unexceptionable."[26] Justice Jackson added further reservations of his own as follows: "We should place some bounds on the demands for interference with local schools that we are empowered or willing to entertain. * * * It is important that we circumscribe our decision with some care."[27] In a dissenting opinion Justice Reed took exception to the extended meaning given to the words "an establishment of religion." "The phrase 'an establishment of religion,'" said he, "may have been intended by Congress to be aimed only at a state church. When the First Amendment was pending in Congress in substantially its present form, 'Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.' Passing years, however, have brought about the acceptance of a broader meaning, although never until today, I believe, has this Court widened its interpretation to any such degree as holding that recognition of the interest of our nation in religion, through the granting, to qualified representatives of the principal faiths, of opportunity to present religion as an optional, extracurricular subject during released school time in public school buildings, was equivalent to an establishment of religion."[28] He further pointed out that "the Congress of the United States has a chaplain for each House who daily invokes divine blessings and guidance for the proceedings. The armed forces have commissioned chaplains from early days. They conduct the public services in accordance with the liturgical requirements of their respective faiths, ashore and afloat, employing for the purpose property belonging to the United States and dedicated to the services of religion. Under the Servicemen's Readjustment Act of 1944, eligible veterans may receive training at government expense for the ministry in denominational schools. The schools of the District of Columbia have opening exercises which 'include a reading from the Bible without note or comment, and the Lord's Prayer.'"[29] THE ZORACH CASE; THE McCOLLUM CASE LIMITED In a decision handed down July 11, 1951 the New York Court of Appeals, one Judge dissenting, sustained the "released time" program of that State, distinguishing it from the one condemned in the McCollum Case as follows: "In the New York City program there is neither supervision nor approval of religious teachers and no solicitation of pupils or distribution of cards. The religious instruction must be outside the school building and grounds. There must be no announcement of any kind in the public schools relative to the program and no comment by any principal or teacher on the attendance or non-attendance of any pupil upon religious instruction. All that the school does besides excusing the pupil is to keep a record--which is not available for any other purpose--in order to see that the excuses are not taken advantage of and the school deceived, which is, of course, the same procedure the school would take in respect of absence for any other reason."[30] On appeal this decision was sustained by the Supreme Court, six Justices to three.[31] Said Justice Douglas, speaking for the majority: "We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here."[32] A few weeks earlier, moreover, the Court had indicated an intention to scrutinize more closely the basis of its jurisdiction in this class of cases. This occurred in a case in which the question involved was the validity of a New Jersey statute which requires the reading at the opening of each public school day of five verses of the Old Testament.[33] The Court held that appellant's interest as taxpayers was insufficient to constitute a justiciable case or controversy, while as to the alleged rights of the child involved the case had become moot with her graduation from school.[34] PERMISSIBLE MONETARY AIDS TO RELIGION In 1899 the Court held that an agreement between the District of Columbia and the directors of a hospital chartered by Congress for erection of a building and treatment of poor patients at the expense of the District was valid despite the fact that the members of the Corporation belonged to a monastic order or sisterhood of a particular church.[35] It has also sustained a contract made at the request of Indians to whom money was due as a matter of right, under a treaty, for the payment of such money by the Commissioner of Indian Affairs for the support of Indian Catholic schools.[36] In 1930 the use of public funds to furnish nonsectarian textbooks to pupils in parochial schools of Louisiana was sustained,[37] and in 1947, as we have seen, the case of public funds for the transportation of pupils attending such schools in New Jersey.[38] In the former of these cases the Court cited the State's interest in secular education even when conducted in religious schools; in the latter its concern for the safety of school children on the highways; and the National School Lunch Act,[39] which aids all school children attending tax-exempt schools can be similarly justified. The most notable financial concession to religion, however, is not to be explained in this way, the universal practice of exempting religious property from taxation. This unquestionably traces back to the idea expressed in the Northwest Ordnance that Government has an interest in religion as such. FREE EXERCISE OF RELIGION: DIMENSIONS The First Amendment "was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of (this) amendment."[40] "The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,--freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be."[41] PAROCHIAL SCHOOLS The Society of Sisters, an Oregon corporation, was empowered by its charter to care for orphans and to establish and maintain schools and academies for the education of the youth. Systematic instruction and moral training according to the tenets of the Roman Catholic Church was given in its establishments along with education in the secular branches. By an Oregon statute, effective September 1, 1926, it was required that every parent, or other person having control or charge or custody of a child between eight and sixteen years send him "to a public school for the period of time a public school shall be held during the current year" in the district where the child resides; and failure so to do was declared a misdemeanor. The District Court of The United States for Oregon enjoined the enforcement of the statute and the Supreme Court unanimously sustained its action,[42] holding that the measure unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control--a liberty protected by the Fourteenth Amendment. While the First Amendment was not mentioned in the Court's opinion, the subsequent absorption of its religious clauses into the Fourteenth Amendment seems to make the case relevant to the question of their proper interpretation. FREE EXERCISE OF RELIGION: FEDERAL RESTRAINTS Religious belief cannot be pleaded as a justification for an overt act made criminal by the law of the land. "Laws are made for the government of action, and while they cannot interfere with mere religious belief and opinions, they may with practices."[43] To permit a man to excuse conduct in violation of law on the ground of religious belief "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."[44] It does not follow that "because no mode of worship can be established or religious tenets enforced in this country, therefore any tenets, however destructive of society, may be held and advocated, if asserted, to be a part of the religious doctrine of those advocating and practicing them * * * Whilst legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so-called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as religion."[45] Accordingly acts of Congress directed against either the practice of the advocacy of polygamy by members of a religious sect which sanctioned the practice, were held valid.[46] But when, in the Ballard Case,[47] decided in 1944, the promoters of a religious sect, whose founder had at different times identified himself as Saint Germain, Jesus, George Washington, and Godfre Ray King, were convicted of using the mails to defraud by obtaining money on the strength of having supernaturally healed hundreds of persons, they found the Court in a softened frame of mind. Although the trial judge, carefully discriminating between the question of the truth of defendants' pretensions and that of their good faith in advancing them, had charged the jury that it could pass on the latter but not the former, this caution did not avail with the Court, which contrived on another ground ultimately to upset the verdict of "guilty." The late Chief Justice Stone, speaking for himself and Justices Roberts and Frankfurter, dissented: "I cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false statements about one's religious experiences."[48] FREE EXERCISE OF RELIGION: STATE AND LOCAL RESTRAINTS The Mormon Church cases were decided prior to the emergence of the clear and present danger doctrine dealt with below. In its consideration of cases stemming from State and local legislation the Court has endeavored at times to take account of this doctrine, with the result that its decisions have followed a somewhat erratic course. The leading case is Cantwell _v._ Connecticut.[49] Here three members of the sect calling itself Jehovah's Witnesses were convicted under a statute which forbade the unlicensed soliciting of funds on the representation that they were for religious or charitable purposes, and also on a general charge of breach of the peace by accosting in a strongly Catholic neighborhood two communicants of that faith and playing to them a phonograph record which grossly insulted the Christian religion in general and the Catholic church in particular. Both convictions were held to violate the constitutional guarantees of speech and religion, the clear and present danger rule being invoked in partial justification of the holding, although it is reasonably inferable from the Court's own recital of the facts that the listeners to the phonograph record exhibited a degree of self-restraint rather unusual under the circumstances. Two weeks later the Court, as if to "compensate" for its zeal in the Cantwell Case, went to the other extreme, and urging the maxim that legislative acts must be presumed to be constitutional, sustained the State of Pennsylvania in excluding from its schools children of the Jehovah's Witnesses, who in the name of their beliefs refused to salute the flag.[50] The subsequent record of the Court's holdings in this field is somewhat variable. A decision in June, 1942, sustaining the application to vendors of religious books and pamphlets of a nondiscriminatory license fee[51] was eleven months later vacated and formally reversed;[52] shortly thereafter a like fate overtook the decision in the "Flag Salute" Case.[53] In May, 1943, the Court found that an ordinance of the city of Struthers, Ohio, which made it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature, was violative of the Constitution when applied to distributors of leaflets advertising a religious meeting.[54] But eight months later it sustained the application of Massachusetts' child labor laws in the case of a nine year old girl who was permitted by her legal custodian to engage in "preaching work" and the sale of religious publications after hours.[55] However, in Saia _v._ New York[56] decided in 1948, the Court held, by a vote of five Justices to four, that an ordinance of the city of Lockport, New York, which forbade the use of sound amplification devices except with the permission of the Chief of Police was unconstitutional as applied in the case of a Jehovah's Witness who used sound equipment to amplify lectures in a public park on Sunday, on religious subjects. But a few months later the same Court, again dividing five-to-four, sustained a Trenton, New Jersey ordinance which banned from that city's streets all loud speakers and other devices which emit "loud and raucous noises."[57] The latest state of the doctrine on this particular topic is represented by three cases, all decided the same day. In one the conviction of a Baptist minister for conducting religious services in the streets of New York City without first obtaining a permit from the city police commissioner was overturned,[58] a permit having been refused him on the ground that he had in the past ridiculed other religious beliefs thereby stirring strife and threatening violence. Justice Jackson dissented, quoting Mr. Bertrand Russell to prove that "too little liberty brings stagnation, and too much brings chaos. The fever of our times," he suggested, "inclines the Court today to favor chaos."[59] In the second, the Court upset the conviction of a group of Jehovah's Witnesses in Maryland for using a public park without first obtaining a permit.[60] The third case,[61] which had nothing to do with religion, affords an interesting foil to the other two. It is dealt with in another connection.[62] FREE EXERCISE OF RELIGION: OBLIGATIONS OF CITIZENSHIP In 1918 the Court rejected as too unsound to require more than a mere statement the argument that the Selective Service Act was repugnant to the First Amendment as establishing or interfering with religion, by reason of the exemptions granted ministers of religion, theological students and members of sects whose tenets exclude the moral right to engage in war.[63] The opposite aspect of this problem was presented in Hamilton _v._ Regents.[64] There a California statute requiring all male students at the State university to take a course in military science and tactics was assailed by students who claimed that military training was contrary to the precepts of their religion. This act did not require military service, nor did it peremptorily command submission to military training. The obligation to take such training was imposed only as a condition of attendance at the university. In these circumstances, all members of the Court concurred in the judgment sustaining the statute. No such unanimity of opinion prevailed in In re Summers,[65] where the Court upheld the action of a State Supreme Court in denying a license to practice law to an applicant who entertained conscientious scruples against participation in war. The license was withheld on the premise that a conscientious belief in nonviolence to the extent that the believer would not use force to prevent wrong, no matter how aggravated, made it impossible for him to swear in good faith to support the State Constitution. The Supreme Court held that the State's insistence that an officer charged with the administration of justice take such an oath and its interpretation of that oath to require a willingness to perform military service, did not abridge religious freedom. In a dissenting opinion in which Justices Douglas, Murphy and Rutledge concurred, Justice Black said, "I cannot agree that a State can lawfully bar from a semipublic position a well-qualified man of good character solely because he entertains a religious belief which might prompt him at some time in the future to violate a law which has not yet been and may never be enacted."[66] Freedom of Speech and Press THE BLACKSTONIAN BACKGROUND "The liberty of the press," says Blackstone, "is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure from criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects."[67] EFFECT OF AMENDMENT I ON THE COMMON LAW Blackstone was declaring the Common Law of his day, and it was no intention of the framers of Amendment I to change that law. "The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803. The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech. Madison's own State put on its books in 1792 a statute confining the abusive exercise of the right of utterance. And it deserves to be noted that in writing to John Adams' wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his belief in unrestrained utterance as to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving the right to enforce restrictions on speech to the States.[68] * * * 'The law is perfectly well settled,' this Court said over fifty years ago, 'that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.'[69] That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years."[70] AMENDMENT XIV AND BLACKSTONE Nor was the adoption of Amendment XIV thought to alter the above described situation until a comparatively recent date. Said Justice Holmes, speaking for the Court in 1907: "We leave undecided the question whether there is to be found in the Fourteenth Amendment a prohibition similar to that in the First. But even if we were to assume that freedom of speech and freedom of the press were protected from abridgment on the part not only of the United States but also of the States, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such _previous restraints_ upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. Commonwealth _v._ Blanding, 3 Pick. 304, 313, 314; Respublica _v._ Oswald, 1 Dallas 319, 325. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all. Commonwealth _v._ Blanding, _ubi sup._; 4 Bl. Comm. 150."[71] This appears to be an unqualified endorsement of Blackstone. But, as Justice Holmes remarks in the same opinion, "There is no constitutional right to have all general propositions of law once adopted remain unchanged."[72] As late as 1922 Justice Pitney, speaking for the Court, said: "Neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restriction about 'freedom of speech' or the 'liberty of silence' * * *"[73] THE CLEAR AND PRESENT DANGER RULE, MEANING The rule requires that before an utterance can be penalized by government it must, ordinarily, have occurred "in such circumstances or have been of such a nature as to create a clear and present danger" that it would bring about "substantive evils" within the power of government to prevent.[74] The question whether these conditions exist is one of law for the courts, and ultimately for the Supreme Court, in enforcement of the First and/or the Fourteenth Amendment;[75] and in exercise of its power of review in these premises the Court is entitled to review broadly findings of facts of lower courts, whether State or federal.[76] CONTRASTING OPERATION OF THE COMMON LAW RULE In Davis _v._ Beason,[77] decided in 1890, the question at issue was the constitutionality of a statute of the Territory of Idaho, providing that "no person who is a bigamist or polygamist, or who teaches, advices, counsels or encourages any person or persons to become bigamists or polygamists or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a rite or ceremony of such order, organization or association, or otherwise, is permitted to vote at any election, or to hold any position or office of honor, trust or profit within this Territory." A unanimous court held this enactment to be within the legislative powers which Congress had conferred on the Territory and not to be open to any constitutional objection. Said Justice Field for the Court: "Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counselling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases."[78] No talk here about the necessity for showing that the prohibited teaching, counselling, advising, etc., must be shown to have occurred in circumstances creating a clear and present danger of its being followed. In Fox _v._ Washington,[79] decided in 1915, the question at issue was the constitutionality of a Washington statute denouncing "the wilful printing, circulation, etc., of matter advocating or encouraging the commission of any crime or breach of the peace or which shall tend to encourage or advocate disrespect for law or any court or courts of justice." The State Supreme Court had assumed that the case was governed by the guarantees of the United States Constitution of freedom of speech, and especially by the Fourteenth Amendment, and its decision sustaining the statute was upheld by the Supreme Court on the same assumption, in the case of a person indicted for publishing an article encouraging and inciting what the jury had found to be a breach of State laws against indecent exposure. Again, one notes the total absence of any reference to the clear and present danger rule. But not all State enactments survived judicial review prior to the adoption of the clear and present danger test. In 1927 the Court disallowed a Kansas statute which, as interpreted by the highest State court, made punishable the joining of an organization teaching the inevitability of "the class struggle";[80] three years later it upset a California statute which forbade in all circumstances the carrying of a red flag as a symbol of opposition to government;[81] and 6 years after that it upset a conviction under an Oregon statute for participating in a meeting held under the auspices of an organization which was charged with advocating violence as a political method, although the meeting itself was orderly and did not advocate violence.[82] In none of these cases was the clear and present danger test mentioned. EMERGENCE OF THE CLEAR AND PRESENT TEST In Schenck _v._ United States[83] appellants had been convicted of conspiracy to violate the Espionage Act of June 15, 1917[84] "by causing and attempting to cause insubordination, etc., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction." Affirming the conviction, the Court, speaking by Justice Holmes said: "It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson _v._ Colorado.[85] * * * We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. * * * The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force. * * * The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."[86] One week later two other convictions under the same act were affirmed, with Justice Holmes again speaking for the unanimous Court. In Frohwerk _v._ United States[87] he said: "With regard to the argument [on the constitutional question] we think it necessary to add to what has been said in Schenck _v._ United States, * * *, only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson _v._ Baldwin, 165 U.S. 275, 281. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."[88] In Debs _v._ United States[89] he referred to "the natural and intended effect" and "probable effect"[90] of the condemned speech (straight common law). When, moreover, a case arose in which the dictum in the Schenck case might have influenced the result, the Court, seven Justices to two, declined to follow it. This was in Abrams _v._ United States,[91] in which the Court affirmed a conviction for spreading propaganda "obviously intended to provoke and to encourage resistance to the United States in the war." Justices Holmes and Brandeis dissented on the ground that the utterances did not create a clear and imminent danger[92] of substantive evils. And the same result was reached in Schaefer _v._ United States,[93] again over the dissent of Justices Holmes and Brandeis, the Court saying that: "The tendency of the articles and their efficacy were enough for the offense * * *."[94] THE GITLOW AND WHITNEY CASES Gitlow was convicted under a New York statute making it criminal to advocate, advise or teach the duty, necessity or propriety of overturning organized government by force or violence.[95] Since there was no evidence as to the effect resulting from the circulation of the manifesto for which he was convicted and no contention that it created any immediate threat to the security of the State, the Court was obliged to reach a clear cut choice between the common law test of dangerous tendency and the clear and present danger test. It adopted the former and sustained the conviction, saying "By enacting the present statute the state has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil, that they may be penalized in the exercise of its police power. That determination must be given great weight * * * That utterances inciting to the overthrow of organized government by unlawful means present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the state. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less and substantial because the effect of a given utterance cannot be accurately foreseen. The state cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale."[96] Justice Sanford distinguished the Schenck Case by asserting that its "general statement" was intended to apply only to cases where the statute "merely prohibits certain acts involving the danger of substantive evil without any reference to language itself,"[97] and has no application "where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character."[98] Two years later, in Whitney _v._ California,[99] upon evidence which tended to establish the existence of a conspiracy to commit certain serious crimes, the conviction was sustained unanimously. In a concurring opinion in which Justice Holmes joined, Justice Brandeis restated the test of clear and present danger to include the intent to create such danger: "But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled. _See_ Schenck _v._ United States, 249 U.S. 47, 52. * * *, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."[100] ACCEPTANCE OF THE CLEAR AND PRESENT DANGER TEST Ten years later, in Herndon _v._ Lowry,[101] a narrowly divided Court drew a distinction between the prohibition by law of specific utterances which the legislators have determined have a "dangerous tendency" to produce substantive evil and the finding by a jury to that effect, and on this basis reversed the conviction of a communist organizer under a State criminal syndicalism statute, with the intimation that where it is left to a jury to determine whether particular utterances are unlawful, the test of clear and present danger must be applied.[102] Finally, in Thornhill _v._ Alabama,[103] the Court went the full length in invalidating a State law against picketing because[104] "* * * no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter." The same term, again invoking the clear and present danger formula, it reversed a conviction for the common law offense of inciting a breach of the peace by playing, on a public street, a phonograph record attacking a religious sect.[105] THE POLICE POWER AND CLEAR AND PRESENT DANGER Public Order Prior to the Court's ratification of the clear and present danger test it had held that while on the one hand, peaceful and orderly opposition to government by legal means may not be inhibited, and that the Constitution insures the "maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means,"[106] yet on the other hand, the State may punish those who abuse their freedom of speech by utterances tending to incite to crime,[107] or to endanger the foundations of organized government or to threaten its overthrow by unlawful means.[108] The impact of the clear and present danger test upon these principles is well illustrated by a holding in 1949 by a sharply divided Court, that a Chicago ordinance which, as judicially interpreted, was held to permit punishment for breach of the peace for speech which "stirs the public to anger, invites disputes, (or) brings about a condition of unrest" was an undue and unlawful restriction on the right of free speech.[109] Reversing a conviction under the ordinance, Justice Douglas wrote: "A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute * * * is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[110] Finding that the ordinance as thus construed was unconstitutional, the majority did not enter into a consideration of the facts of the particular case. Dissenting, Justice Jackson dwelt at length upon the evidence which showed that a riot had actually occurred and that the speech in question had in fact provoked a hostile mob, incited a friendly one, and threatened violence between the two. Conceding the premises of the majority opinion, he argued nevertheless that: "Because a subject is legally arguable, however, does not mean that public sentiment will be patient of its advocacy at all times and in all manners. * * * A great number of people do not agree that introduction to America of communism or fascism is even debatable. Hence many speeches, such as that of Terminiello, may be legally permissible but may nevertheless in some surroundings be a menace to peace and order. When conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society."[111] Early in 1951 the Court itself endorsed this position in Feiner _v._ New York.[112] Here was sustained the conviction of a speaker who in addressing a crowd including a number of Negroes, through a public address system set up on the sidewalk, asserted that the Negroes "should rise up in arms and fight for their rights," called a number of public officials, including the President, "bums," and ignored two police requests to stop speaking. The Court took cognizance of the findings by the trial court and two reviewing State courts that danger to public order was clearly threatened.[113] Public Morals But the police power extends also to the public morals. In Winters _v._ New York[114] the question at issue was the constitutionality of a State statute making it an offense "to print, publish, or distribute, or to possess with intent to distribute, any printed matter principally made up of criminal views, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime," and construed by the State courts "as prohibiting such massing of accounts of deeds of bloodshed and lust as to incite to crimes against the person." A divided Court, 6 Justices to 3, following the third argument of the case before it, set the act aside on the ground that, as construed, it did not define the prohibited acts in such a way as to exclude those which are a legitimate exercise of the constitutional freedom of the press; and further, that it failed to set up an ascertainable standard of guilt.[115] A few weeks earlier the Court had vacated a judgment of the Supreme Court of Utah affirming convictions on a charge of conspiring to "commit acts injurious to public morals" by counseling, advising and practicing plural marriage.[116] Four members of the Court thought that the cause should be remanded in order to give the State Supreme Court opportunity to construe that statute and a fifth agreed with this result without opinion. Justice Rutledge, speaking for himself and Justices Douglas and Murphy, dissented on the ground that the Utah Court had already construed the statute to authorize punishment for exercising the right of free speech. He said: "The Utah statute was construed to proscribe any agreement to advocate the practice of polygamy. Thus the line was drawn between discussion and advocacy. The Constitution requires that the statute be limited more narrowly. At the very least the line must be drawn between advocacy and incitement, and even the state's power to punish incitement may vary with the nature of the speech, whether persuasive or coercive, the nature of the wrong induced, whether violent or merely offensive to the mores, and the degree of probability that the substantive evil actually will result."[117] PICKETING AND CLEAR AND PRESENT DANGER Closely allied to the problem of dangerous utterances is the resort to picketing as a means of communication and persuasion in labor disputes. In such cases, the evils feared by the legislature usually arise, not out of the substance of the communications, but from the manner in which they are made. Applying the test of clear and present danger in Thornhill _v._ Alabama[118] and Carlson v. California,[119] the Court invalidated laws against peaceful picketing, including the carrying of signs and banners. It held that: "the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution" and may be abridged only where "the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion."[120] Shortly thereafter a divided Court ruled that peaceful picketing may be enjoined where the labor dispute has been attended by violence on a serious scale.[121] Speaking for the majority on this occasion, Justice Frankfurter asserted that "utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force * * * (and) was not meant to be sheltered by the Constitution."[122] For a brief period strangers to the employer were accorded an almost equal freedom of communication by means of picketing.[123] Subsequent cases, however, have recognized that "while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech."[124] Without dissent the Court has held that a State may enjoin picketing designed to coerce the employer to violate State law by refusing to sell ice to nonunion peddlers,[125] by interfering with the right of his employees to decide whether or not to join a union,[126] or by choosing a specified proportion of his employees from one race, irrespective of merit.[127] By close divisions, it also sustained the right of a State to forbid the "conscription of neutrals" by the picketing of a restaurant solely because the owner had contracted for the erection of a building (not connected with the restaurant and located some distance away) by a contractor who employed nonunion men;[128] or the picketing of a shop operated by the owner without employees to induce him to observe certain closing hours.[129] In this last case Justice Black distinguished Thornhill _v._ Alabama and other prior cases by saying, "No opinions relied on by petitioners assert a constitutional right in picketers to take advantage of speech or press to violate valid laws designed to protect important interests of society * * * it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. * * * Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society."[130] By the same token, a State anti-closed shop law does not infringe freedom of speech, of assembly or of petition;[131] neither does a "cease and desist" order of a State Labor Relations Board directed against work stoppages caused by the calling of special union meetings during working hours.[132] But, by a vote of five Justices to four--the five, however, being unable to agree altogether among themselves--a State may not require labor organizers to register,[133] although, as Justice Roberts pointed out for the dissenters, "other paid organizers, whether for business or for charity could be required thus to identify themselves."[134] CONTEMPT OF COURT AND CLEAR AND PRESENT DANGER One area in which the clear and present danger rule has undoubtedly enlarged freedom of utterance beyond common law limits is that of discussion of judicial proceedings. In 1907 the Supreme Court speaking by Justice Holmes refused to review the conviction of an editor for contempt of court in publishing articles and cartoons criticizing the action of the court in a pending case.[135] It took the position that even if freedom of the press was protected against abridgment by the State, a publication tending to obstruct the administration of justice was punishable, irrespective of its truth. In recent years the Court not only has taken jurisdiction of cases of this order but has scrutinized the facts with great care and has not hesitated to reverse the action of State courts. Bridges _v._ California[136] is the leading case. Enlarging upon the idea that clear and present danger is an appropriate guide in determining whether comment on pending cases can be punished, Justice Black said: "We cannot start with the assumption that publications of the kind here involved actually do threaten to change the nature of legal trials, and that to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases. We must therefore turn to the particular utterances here in question and the circumstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment."[137] Speaking on behalf of four dissenting members, Justice Frankfurter objected: "A trial is not a 'free trade in ideas,' nor is the best test of truth in a courtroom 'the power of the thought to get itself accepted in the competition of the market.' * * * We cannot read into the Fourteenth Amendment the freedom of speech and of the press protected by the First Amendment and at the same time read out age-old means employed by states for securing the calm course of justice. The Fourteenth Amendment does not forbid a state to continue the historic process of prohibiting expressions calculated to subvert a specific exercise of judicial power. So to assure the impartial accomplishment of justice is not an abridgment of freedom of speech or freedom of the press, as these phases of liberty have heretofore been conceived even by the stoutest libertarians. In act, these liberties themselves depend upon an untrammeled judiciary whose passions are not even unconsciously aroused and whose minds are not distorted by extrajudicial considerations."[138] In Pennekamp _v._ Florida,[139] a unanimous Court held that criticism of judicial action already taken, although the cases were still pending on other points, did not create a danger to fair judicial administration of the "clearness and immediacy necessary to close the doors of permissible public comment"[140] even though the State court held and the Supreme Court assumed that "the petitioners deliberately distorted the facts to abase and destroy the efficiency of the court."[141] And in Craig _v._ Harney,[142] a divided Court held that publication, while a motion for a new trial was pending, of an unfair report of the facts of a civil case, accompanied by intemperate criticism of the judge's conduct was protected by the Constitution. Said Justice Douglas, speaking for the majority: "The vehemence of the language used is not alone the measure of the power to publish for contempt. The fires which it kindles must constitute an imminent, and not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil."[143] FREEDOM OF SPEECH AND PRESS IN PUBLIC PARKS AND STREETS Notable also is the protection which the Court has erected in recent years for those who desire to use the streets and the public parks as theatres of discussion, agitation, and propaganda dissemination. In 1897 the Court unanimously sustained an ordinance of the city of Boston which provided that "no person shall, in or upon any of the public grounds, make any public address," etc., "except in accordance with a permit of the Mayor,"[144] quoting with approval the following language from the decision of the Massachusetts Supreme Judicial Court in the same case. "For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in the house. When no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less step of limiting the public use to certain purposes."[145] Forty-two years later this case was distinguished in Hague _v._ C.I.O.[146] (_See_ p. 808.) And in 1948 in Saia _v._ New York[147] an ordinance forbidding the use of sound amplification devices by which sound is cast directly upon the streets and public places, except with permission of the chief of police, for the exercise of whose discretion no standards were prescribed, was held unconstitutional as applied to one seeking leave to amplify religious lectures in a public park. The decision was a five-to-four holding; and eight months later a majority, comprising the former dissenters and the Chief Justice, held it to be a permissible exercise of legislative discretion to bar sound trucks, with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of a municipality.[148] Conversely, it was within the power of the Public Utilities Commission of the District of Columbia, following a hearing and investigation, to issue an order permitting the Capital Transit Company, despite the protest of some of its patrons, to receive and amplify on its street cars and buses radio programs consisting generally of 90% music, 5% announcements, and 5% commercial advertising. Neither operation of the radio service nor the action of the Commission permitting it was precluded by the First and Fifth Amendments.[149] Under still unoverruled decisions an ordinance forbidding any distribution of circulars, handbills, advertising, or literature of any kind within the city limits without permission of the City Manager is an unlawful abridgment of freedom of the press.[150] So also are ordinances which forbid, without exception, any distributions of handbills upon the streets.[151] Even where such distribution involves a trespass upon private property in a company owned town,[152] or upon Government property in a defense housing development,[153] it cannot be stopped. The passing out of handbills containing commercial advertising may, however, be prohibited; this is true even where such handbills may contain some matter which, standing alone would be immune from the restriction.[154] A municipal ordinance forbidding any person to ring door bells, or otherwise summon to the door the occupants of any residence, for the purpose of distributing to them circulars or handbills was held to infringe freedom of speech and of the press as applied to a person distributing advertisements of a religious meeting.[155] But an ordinance forbidding door to door peddling or canvassing unless it is invited or requested by the occupant of a private residence is valid.[156] CENSORSHIP Freedom from previous restraints has never been regarded as absolute. The principle that words having the quality of verbal acts might be enjoined by court order was established in Gompers _v._ Bucks Stove and Range Co.;[157] and in Near _v._ Minnesota[158] the Court, speaking through Chief Justice Hughes, even while extending Blackstone's condemnation of censorship to a statute which authorized the enjoining of publications alleged to be persistently defamatory, criticized it as being in some respects too sweeping. Indeed, the distinction between prevention and punishment appears to have played little or no part in determining when picketing may be forbidden in labor disputes.[159] In Chaplinsky _v._ New Hampshire[160] and Board of Education _v._ Barnette,[161] the opinions indicated that the power of Government is measured by the same principles in both situations. In the former Justice Murphy asserted: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[162] To like effect, in Board of Education _v._ Barnette, Justice Jackson set it down as "a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish."[163] It is significant that the cases which have sanctioned previous restraints upon the utterances of particular persons have involved restraint by judicial, not administrative action. The prime objective of the ban on previous restraints was to outlaw censorship accomplished by licensing. "The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing.' And the liberty of the press became initially a right to publish '_without_ a license what formerly could be published only _with one_'."[164] Even today, a licensing requirement will bring judicial condemnation more surely than any other form of restriction. Except where the authority of the licensing officer is so closely limited as to leave no room for discrimination against utterances he does not approve,[165] the Supreme Court has struck down licensing ordinances, even in respect of a form of communication which may be prohibited entirely.[166] In the case of radio broadcasting, however, where physical limitations make it impossible for everyone to utilize the medium of communication, the Court has thus far sanctioned a power of selective licensing;[167] while with respect to moving pictures it has until very recently held the States' power to license, and hence to censor, films intended for local exhibition to be substantially unrestricted, this being "a business pure and simple, originated and conducted for profit," and "not to be regarded, ... as part of the press of the country or as organs of public opinion."[168] This doctrine was laid down in 1915, but in 1948, in speaking for the Court, in United States _v._ Paramount Pictures,[169] Justice Douglas indicated a very different position, saying: "We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment."[170] In the so-called "Miracle Case,"[171] in which it was held that under the First and Fourteenth Amendments, a State may not place a prior restraint on the showing of a motion picture film on the basis of the censor's finding that it is "sacrilegious," a word of uncertain connotation, this point of view becomes the doctrine of the Court and the Mutual Films Case is pronounced "overruled" so far as it is out of harmony with the instant holding.[172] THE CLEAR AND PRESENT DANGER TEST: JUDICIAL DIVERSITIES In the course of decisions enforcing this test of state action with respect to freedom of speech and press, diversity of opinion has appeared among the Justices upon three closely related topics: first, as to the restrictive force of the test; second, as to the constitutional status of freedom of speech and press; third, as to the kind of speech which the Constitution is concerned to protect. On the first point the following passage from Justice Black's opinion in Bridges _v._ California[173] is pertinent: "What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."[174] With this should be compared the following words from Justice Frankfurter's concurring opinion in Pennekamp _v._ Florida,[175] which involved a closely similar issue to the one dealt with in the Bridges Case: "'Clear and present danger' was never used by Mr. Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. When those other attributes of a democracy are threatened by speech, the Constitution does not deny power to the states to curb it."[176] The second question, in more definite terms, is whether freedom of speech and press occupies a "preferred position" in the constitutional hierarchy of values so that legislation restrictive of it is presumptively unconstitutional. An important contribution to the affirmative view on this point is the following passage from an opinion of Justice Cardozo written in 1937: "One may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. * * * So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts."[177] Touching on the same subject a few months later, Chief Justice Stone suggested that: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." And again: "It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation."[178] But the strongest assertion of this position occurs in Justice Rutledge's opinion for a sharply divided Court in Thomas _v._ Collins.[179] He says: "The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. * * * That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. * * * For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly. It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights."[180] This was 1945. Four years later the controlling wing of the Court, in sustaining a local ordinance, endorsed a considerably less enthusiastic appraisal of freedom of speech and press. Thus while alluding to "the preferred position of freedom of speech in a society that cherishes liberty for all," Justice Reed went on to say, that this "does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself."[181] And Justice Frankfurter denied flatly the propriety of the phrase "preferred position," saying: "This is a phrase that has uncritically crept into some recent opinions of this Court. I deem it a mischievous phrase, if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity. It is not the first time in the history of constitutional adjudication that such a doctrinaire attitude has disregarded the admonition most to be observed in exercising the Court's reviewing power over legislation, 'that it is a constitution we are expounding,' M'Culloch _v._ Maryland, 4 Wheat. 316, 407. I say the phrase is mischievous because it radiates a constitutional doctrine without avowing it. Clarity and candor in these matters, so as to avoid gliding unwittingly into error, make it appropriate to trace the history of the phrase 'preferred position.'"[182] which Justice Frankfurter then proceeded to do. Justice Jackson also protested: "We cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position."[183] The third question concerns the quality and purpose of the speech which the Constitution aims to protect. In 1949, Justice Douglas speaking for a divided Court returned the following robustious answer to this question: "* * * a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky _v._ New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[184] But early in 1951 Justice Jackson, in a dissenting opinion, urges the Court to review its entire position in the light of the proposition that "the purpose of constitutional protection of freedom of speech is to foster peaceful interchange of all manner of thoughts, information and ideas," that "its policy is rooted in faith of the force of reason."[185] He considers that the Court has been striking "rather blindly at permit systems which indirectly may affect First Amendment freedom." He says: "Cities throughout the country have adopted the permit requirement to control private activities on public streets and for other purposes. The universality of this type of regulation demonstrates a need and indicates widespread opinion in the profession that it is not necessarily incompatible with our constitutional freedoms. Is everybody out of step but this Court? * * * It seems hypercritical to strike down local laws on their faces for want of standards when we have no standards. And I do not find it required by existing authority. I think that where speech is outside of constitutional immunity the local community or the State is left a large measure of discretion as to the means for dealing with it."[186] This diversity of viewpoint on the Court touching the above questions became of importance when, recently, the Court was faced with the problem of the relation of freedom of speech to the enumerated powers of the National Government, in contrast to the indefinite residual powers of the States. TAXATION The Supreme Court, citing the fact that the American Revolution "really began when * * * that government (of England) sent stamps for newspaper duties to the American colonies" has been alert to the possible uses of taxation as a method of suppressing objectionable publications.[187] Persons engaged in the dissemination of ideas are, to be sure, subject to ordinary forms of taxation in like manner as other persons.[188] With respect to license or privilege taxes, however, they stand on a different footing. Their privilege is granted by the Constitution and cannot be withheld by either State or Federal Government. Hence a license tax measured by gross receipts for the privilege of engaging in the business of publishing advertising in any newspaper or other publication was held invalid[189] and flat license fees levied and collected as a pre-condition to the sale of religious books and pamphlets have also been set side.[190] FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS Regulations of Business and Labor Activities The application to newspapers of the Anti-Trust Laws,[191] the National Labor Relations Act,[192] or the Fair Labor Standards Act,[193] does not abridge the freedom of the press. In Gompers _v._ Bucks Stove and Range Co.,[194] the Supreme Court unanimously held that a court of equity may enjoin continuance of a boycott, despite the fact that spoken or written speech was used as an instrumentality by which the boycott was made effective. "In the case of an unlawful conspiracy, the agreement to act in concert when the signal is published gives the words 'Unfair,' 'We Don't Patronize,' or similar expressions, a force not inhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have. Under such circumstances they become what have been called 'verbal acts,' and as much subject to injunction as the use of any other force whereby property is unlawfully damaged."[195] A cognate test has been applied in determining when communications by an employer constitute an unfair labor practice which may be forbidden or penalized under the National Labor Relations Act without infringing freedom of speech. In Labor Board _v._ Virginia Power Co.,[196] the Court held that the sanctions of the act might be imposed upon an employer for the protection of his employees, where his conduct "though evidenced in part by speech, * * * (amounted) to coercion within the meaning of the act."[197] In the opinion of the Court, Justice Murphy stated, "The mere fact that language merges into a course of conduct does not put that whole course without the range of otherwise applicable administrative power. In determining whether the Company actually interfered with, restrained, and coerced its employees, the Board has a right to look at what the Company has said, as well as what it has done."[198] But the constitutionality of legislation prohibiting the publication by corporations and unions in the regular course of conducting their affairs of periodicals advising their members, stockholders or customers of danger or advantage to their interest from the adoption of measures or the election to office of men espousing such measures has been declared by the Court to be open to gravest doubt.[199] REGULATION OF POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES The leading case touching this subject is Ex parte Curtis, decided seventy years ago.[200] Here was sustained an act of Congress which prohibited, under penalties, certain categories of officers of the United States from requesting, giving to, or receiving from, any other officer, money or property or other thing of value for political purposes.[201] Two generations later was enacted the so-called Hatch Act[202] which, while making some concessions to freedom of expression on matters political by employees of the government, forbids their active participation in political management and political campaigns. The act was sustained against objections based on the Bill of Rights;[203] while an amendment to it the effect of which is to diminish the amount of a federal grant-in-aid of the construction of highways in a State which fails to remove from office "one found by the United States Civil Service Commission to have taken active part in political management or in political campaigns while a member of the state highway commission," was held not to violate Amendment X.[204] LEGISLATION PROTECTIVE OF THE ARMED FORCES AND OF THE WAR POWER The Federal Government may punish utterances which obstruct its recruiting or enlistment service, cause insubordination in the armed forces, encourage resistance to government in the prosecution of war, or impede the production of munitions and other essential war material.[205] The only issue which has divided the Court with regard to such speech has been the degree of danger which must exist before it may be punished. The recent decision in Dennis _v._ United States diminishes, if it does not eliminate, this issue.[206] LOYALTY REGULATIONS: THE DOUDS CASES "Section 9 (h) of the Labor Management Relations Act requires, as a condition of a union's utilizing the opportunities afforded by the act, each of its officers to file an affidavit with the National Labor Relations Board (1) that he is not a member of the Communist Party or affiliated with such party, and (2) that he does not believe in, and is not a member of or supports any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods." The statute also makes it a criminal offense to make willfully or knowingly any false statement in such an affidavit.[207] In American Communications Association, C.I.O. et al. _v._ Douds[208] five of the six Justices participating sustained the requirement (1) and three Justices sustained the requirement (2) against the objection that the act exceeded Congress's power over interstate commerce and infringed freedom of speech and the rights of petition and assembly; and in Osman _v._ Douds[209] the same result was reached by a Court in which only Justice Clark did not participate. In the end only Justice Black condemned requirement (1), while the Court was evenly divided as to requirement (2). In the course of his opinion for the controlling wing of the Court, Chief Justice Vinson said: "The attempt to apply the term, 'clear and present danger,' as a mechanical test in every case touching First Amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea * * * the question with which we are here faced is not the same one that Justices Holmes and Brandeis found convenient to consider in terms of clear and present danger. Government's interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. * * * The contention of petitioner * * * that this Court must find that political strikes create a clear and present danger to the security of the Nation or of widespread industrial strife in order to sustain § 9 (h) similarly misconceives the purpose that phrase was intended to serve. In that view, not the relative certainty that evil conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must be measured by the 'test' laid down in the _Schenck Case_."[210] In thus balancing the gravity of the interest protected by legislation from harmful speech against the demands of the clear and present danger rule the Court paved the way for its decision a year later in Dennis _v._ United States. THE CASE OF THE ELEVEN COMMUNISTS Dennis _v._ United States[211] involves the following legislation: "Section 2. (a) It shall be unlawful for any person-- "(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government; "(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; "(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof. "(b) For the purposes of this section, the term 'government in the United States' means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the government of any political subdivision of any of them."[212] The trial court had ruled that clause (2) of the act qualified both the other clauses; and this construction was endorsed by the Supreme Court. The judgment of the Court sustaining the convictions against objections raised under Amendment I was supported by three different opinions. Chief Justice Vinson, speaking also for Justices Reed, Burton and Minton emphasized the substantial character of the Government's interest in preventing its own overthrow by force. "Indeed," said he, "this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected."[213] The opinion continues: "If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase 'clear and present danger' of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the Government may act, it must wait until the _putsch_ is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success or the immediacy of a successful attempt."[214] The Chief Justice concluded this part of his opinion by quoting from Chief Judge Learned Hand's opinion for the Circuit Court of Appeals in the same case, as follows: "'In each case [courts] must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.'"[215] In short, if the evil legislated against is serious enough, advocacy of it in order to be punishable does not have to be attended by a clear and present danger of success. But at this point the Chief Justice appears to recoil from this abrupt dismissal of the clear and present danger formula for the more serious cases, and he makes a last moment effort to rescue the babe that he has tossed out with the bathwater. He says: "As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words. Likewise, we are in accord with the court below, which affirmed the trial court's finding that the requisite danger existed. The mere fact that from the period 1945 to 1948 petitioners' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger."[216] His final position seems to be that, after all, the question is one for judicial discretion. "When facts are found that establish the violation of a statute, the protection against conviction afforded by the First Amendment is a matter of law. The doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts."[217] Justice Frankfurter's lengthy concurring opinion premises "the right of a government to maintain its existence--self preservation." This, he says, is "the most pervasive aspect of sovereignty," citing The Federalist No. 41, and certain cases.[218] A little later he raises the question, "But how are competing interests to be assessed?" and answers: "Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in decisions not charged with the emotional appeal of situations such as that now before us. We are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it."[219] But a difficulty exists, to wit, in the clear and present danger doctrine. He says: "In all fairness, the argument [of defendants] cannot be met by reinterpreting the Court's frequent use of 'clear' and 'present' to mean an entertainable 'probability.' In giving this meaning to the phrase 'clear and present danger,' the Court of Appeals was fastidiously confining the rhetoric of opinions to the exact scope of what was decided by them. We have greater responsibility for having given constitutional support, over repeated protests, to uncritical libertarian generalities. Nor is the argument of the defendants adequately met by citing isolated cases. * * * The case for the defendants requires that their conviction be tested against the entire body of our relevant decisions."[220] Turning then to the cases Justice Frankfurter exclaims at last: "I must leave to others the ungrateful task of trying to reconcile all these decisions."[221] The nearest precedent was Gitlow _v._ New York.[222] Here "we put our respect for the legislative judgment in terms which, if they were accepted here, would make decision easy. * * * But it would be disingenuous to deny that the dissent in _Gitlow_ has been treated with the respect usually accorded a decision."[223] But the case at bar was a horse of a different color. "In contrast, there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security,"[224] which seems to be in essential agreement with the position of the Chief Justice and his three associates. Justice Frankfurter concludes with a homily on the limitations which the nature of judicial power imposes, on the power of judicial review. He says: "Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the Government's protection? To make validity of legislation depend on judicial reading of events still in the womb of time--a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations--is to charge the judiciary with duties beyond its equipment. We do not expect courts to pronounce historic verdicts on bygone events. Even historians have conflicting views to this day on the origin and conduct of the French Revolution. It is as absurd to be confident that we can measure the present clash of forces and their outcome as to ask us to read history still enveloped in clouds of controversy. * * * The distinction which the Founders drew between the Court's duty to pass on the power of Congress and its complementary duty not to enter directly the domain of policy is fundamental. But in its actual operation it is rather subtle, certainly to the common understanding. Our duty to abstain from confounding policy with constitutionality demands preceptive humility as well as self-restraint in not declaring unconstitutional what in a judge's private judgment is unwise and even dangerous."[225] Justice Jackson's opinion emphasizes the conspiratorial element of the case, and is flatfooted in rejecting the 'clear and present danger' test for this type of case. He writes: "The 'clear and present danger' test was an innovation by Mr. Justice Holmes in the _Schenck Case_, reiterated and refined by him and Mr. Justice Brandeis in later cases, all arising before the era of World War II revealed the subtlety and efficacy of modernized revolutionary techniques used by totalitarian parties. In those cases, they were faced with convictions under so-called criminal syndicalism statutes aimed at anarchists but which, loosely construed, had been applied to punish socialism, pacifism, and left-wing ideologies, the charges often resting on far-fetched inferences which, if true, would establish only technical or trivial violations. They proposed 'clear and present danger' as a test for the sufficiency of evidence in particular cases. I would save it, unmodified, for application as a 'rule of reason' in the kind of case for which it was devised. When the issue is criminality of a hot-headed speech on a street corner, or circulation of a few incendiary pamphlets or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. The test applies and had meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. The formula in such cases favors freedoms that are vital to our society, and, even if sometimes applied too generously, the consequences cannot be grave. But its recent expansion has extended, in particular to Communists, unprecedented immunities. Unless we are to hold our Government captive in a judge-made verbal trap, we must approach the problem of a well-organized, nation-wide conspiracy, such as I have described, as realistically as our predecessors faced the trivialities that were being prosecuted until they were checked with a rule of reason. I think reason is lacking for applying that test to this case."[226] And again, "What really is under review here is a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy. With due respect to my colleagues, they seem to me to discuss anything under the sun except the law of conspiracy. One of the dissenting opinions even appears to chide me for 'invoking the law of conspiracy.' As that is the case before us, it may be more amazing that its reversal can be proposed without even considering the law of conspiracy. The Constitution does not make conspiracy a civil right. The Court has never before done so and I think it should not do so now. Conspiracies of labor unions, trade associations, and news agencies have been condemned, although accomplished, evidenced and carried out, like the conspiracy here, chiefly by letter-writing, meetings, speeches and organization. Indeed, this Court seems, particularly in cases where the conspiracy has economic ends, to be applying its doctrines with increasing severity. While I consider criminal conspiracy a dragnet device capable of perversion into an instrument of injustice in the hands of a partisan or complacent judiciary, it has an established place in our system of law, and no reason appears for applying it only to concerted action claimed to disturb interstate commerce and withholding it from those claimed to undermine our whole Government. * * *"[227] The dissenters were Justices Black and Douglas. The former reiterated his position in Bridges _v._ California; the latter italicized Justice Brandeis' dictum in the Whitney Case: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."[228] The answer would seem to be that education had not in fact prevented the formation of the conspiracy for entering into which the eleven defendants were convicted. If that be deemed a danger at all, it was certainly a clear and present one. Both dissenters, in fact, ignore the conspiracy element. SUBVERSIVE ORGANIZATIONS In a series of cases[229] in which certain organizations sued the Attorney General for declaratory or injunctive relief looking to the deletion of their names from a list of organizations designated by him to be subversive, the Court reversed holdings of the courts below which had denied relief. Two Justices thought the order not within the President's Executive Order No. 9835, which lays down a procedure for the determination of the loyalty of federal employees or would-be-employees. Justice Black thought the Attorney General had violated Amendment I and that the President's order constituted a Bill of Attainder. He and Justices Frankfurter and Jackson also held that the Attorney General had violated due process of law in having failed to give the petitioners notice and hearing. Justice Reed, with the concurrence of the Chief Justice and Justice Minton, dissented, asserting that the action of the Court constituted an interference with the discretion of the executive in the premises. RECENT STATE LEGISLATION Loyalty Tests The decision in Dennis _v._ United States,[230] taken in conjunction with those in the two Douds[231] Cases, put the clear and present danger rule on the defensive in the field of federal legislation. Substantially contemporaneous holdings in the field of state action may reflect a similar trend. In Garner _v._ Los Angeles Board,[232] the Court sustained the right of a municipality to bar from employment persons who advise, advocate, or teach the violent overthrow of the government, or who are members of, or become affiliated with any group doing so, and to exact a loyalty oath of its employees. In Adler _v._ Board of Education[233] the Court sustained the Civil Service Law of New York as implemented by the so-called Feinberg Law of 1949.[234] The former makes ineligible in any public school any member of an organization advocating the overthrow of government by force, violence, or any unlawful means. The Feinberg Law requires the Board of Regents of the State (1) to adopt and enforce rules for the removal of ineligible persons; (2) to promulgate a list of banned organizations; (3) to make membership in any such organization prima facie evidence of disqualification for employment in the public schools. Referring to the Garner Case above, Justice Minton, for the Court, said: "We adhere to that case. A teacher works in a sensitive area in the schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one's reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate."[235] Group Libel In 1952 in Beauharnais _v._ Illinois[236] the Court sustained an Illinois statute which makes it a crime to exhibit in a public place any publication which "portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion" or which "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy." The act was treated by the State Supreme Court as a form of criminal libel, with the result that defense by truth of the utterance was not under Illinois law available unless the publication was also shown to have been made "with good motives and with justifiable ends." So construed, the Court held, the Act did not violate liberty of speech and press as guaranteed to the States by Amendment XIV. Said Justice Frankfurter: "If an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this is a wilful and purposeless restriction unrelated to the peace and well-being of the State."[237] Pointing then to Illinois' bad record in the matter of race riots, he continued: "In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. 'There are limits to the exercise of these liberties [of speech and of the press]. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.' * * * It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved."[238] CENSORSHIP OF THE MAILS: FRAUD ORDER By legislation adopted in 1879 and 1934 Congress has specified certain conditions upon which a publication shall be admitted to the valuable second-class mailing privilege, one of which provides as follows: Except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second-class are as follows: "* * * _Fourth._ It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers; * * * nothing herein contained shall be so construed as to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."[239] In Hannegan _v._ Esquire, Inc.,[240] the Court sustained an injunction against an order of the Postmaster General which suspended a permit to Esquire Magazine on the ground that it did not "contribute to the public good and the public welfare." Said Justice Douglas for the Court: "* * * a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system. The basic values implicit in the requirements of the Fourth condition can be served only by uncensored distribution of literature. From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. But to withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official. The validity of the obscenity laws is recognized that the mails may not be used to satisfy all tastes, no matter how perverted. But Congress has left the Postmaster General with no power to prescribe standards for the literature or the art which a mailable periodical disseminates."[241] In Donaldson _v._ Read Magazine,[242] however, the Court sustained a Court order forbidding the delivery of mail and money orders to a magazine conducting a puzzle contest which the Postmaster-General had found to be fraudulent. Freedom of the press, said the Court, does not include the right to raise money by deception of the public. The Rights of Assembly and Petition The right of petition took its rise from the modest provision made for it in chapter 61 of Magna Carta (1215).[243] To this meagre beginning Parliament itself and its procedures in the enactment of legislation, the equity jurisdiction of the Lord Chancellor, and proceedings against the Crown by "petition of right" are all in some measure traceable. Thus, while the King summoned Parliament for the purpose of supply, the latter--but especially the House of Commons--petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch; and as it increased in importance it came to claim the right to dictate the form of the King's reply, until in 1414 Commons boldly declared themselves to be "as well assenters as petitioners." Two hundred and fifty years later, in 1669, Commons further resolved that every commoner in England possessed "the inherent right to prepare and present petitions" to it "in case of grievance," and of Commons "to receive the same" and to judge whether they were "fit" to be received. Finally Chapter 5 of the Bill of Rights of 1689 asserted the right of the subjects to petition the King and "all commitments and prosecutions for such petitioning to be illegal."[244] Historically, therefore, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if Amendment I read; "the right of the people peaceably to assemble" _in order to_ "petition the government."[245] Today, however, the right of peaceable assembly is, in the language of the Court, "cognate to those of free speech and free press and is equally fundamental * * * [It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions,--principles which the Fourteenth Amendment embodies in the general terms of its due process clause. * * * The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question * * * is not as to the auspices under which the meeting is held but as to its purposes; not as to the relation of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects."[246] Furthermore, the right of petition has expanded. It is no longer confined to demands for "a redress of grievances," in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interests and prosperity of the petitioners, and of their views on politically contentious matters. RESTRAINTS ON THE RIGHT OF PETITION The right of petition recognized by Amendment I first came into prominence in the early 1830's, when petitions against slavery in the District of Columbia began flowing into Congress in a constantly increasing stream, which reached its climax in the winter of 1835. Finally on January 28, 1840, the House adopted as a standing rule: "That no petition, memorial, resolution, or other paper praying the abolition of slavery in the District of Columbia, or any State or Territories of the United States in which it now exists, shall be received by this House, or entertained in any way whatever." Thanks to the efforts of John Quincy Adams this rule was repealed five years later, after Adams' death.[247] For many years now the rules of the House of Representatives have provided that members having petitions to present may deliver them to the Clerk and the petitions, except such as, in the judgment of the Speaker, are of an obscene or insulting character, shall be entered on the Journal and the Clerk shall furnish a transcript of such record to the official reporters of debates for publication in the Record.[248] Even so petitions for the repeal of the espionage and sedition laws and against military measures for recruiting resulted, in World War I, in imprisonment.[249] Processions for the presentation of petitions in the United States have not been particularly successful. In 1894 General Coxey of Ohio organized armies of unemployed to march on Washington and present petitions, only to see their leaders arrested for unlawfully walking on the grass of the capitol. The march of the veterans on Washington in 1932 demanding bonus legislation was defended as an exercise of the right of petition. The administration, however, regarded it as a threat against the constitution and called out the army to expel the bonus marchers and burn their camps. For legal regulation of lobbying activities, _see_ below. THE CRUIKSHANK CASE The right of assembly was first passed upon by the Supreme Court in 1876 in the famous case of United States _v._ Cruikshank et al.[250] The case arose on indictments under section 6 of the so-called Enforcement Act of May 30, 1870,[251] which read as follows: "That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, etc." The indictments charged the defendants with having deprived certain citizens of their right to assemble together peaceably with other citizens "for a peaceful and lawful purpose." The court held that this language was insufficient inasmuch as it did not specify that the attempted assembly was for a purpose connected with the National Government. As to the right of assembly the Court, speaking by Chief Justice Waite, went on to declare: "The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever."[252] HAGUE _v._ COMMITTEE OF INDUSTRIAL ORGANIZATION In this case[253] the question at issue was the validity of a Jersey City ordinance requiring the obtaining of a permit for a public assembly in or upon the public streets, highways, public parks, or public buildings of the city and authorizing the director of public safety, for the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a permit. Two Justices held that in the circumstances of the case the ordinance violated the right of certain citizens of the United States to assemble to discuss certain privileges which they enjoyed as such, to wit, their rights and privileges under the National Labor Relations Act.[254] Said Justice Roberts, expressing this point of view: "The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right."[255] Two other Justices invoked also the due process clause of Amendment XIV, thereby claiming the right of assembly for aliens as well as citizens. Said Justice Stone, who expressed this view: "I think respondents' right to maintain it does not depend on their citizenship and cannot rightly be made to turn on the existence or non-existence of a purpose to disseminate information about the National Labor Relations Act. It is enough that petitioners have prevented respondents from holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose."[256] Both Justices were in agreement that freedom of speech and freedom of assembly were claimable only by natural persons, and not by corporations.[257] Two Justices dissented on the basis of Davis _v._ Massachusetts.[258] RECENT CASES In Bridges _v._ California[259] it was held that a telegram addressed to the Secretary of Labor strongly criticizing the action of a State court in a pending case was privileged under this amendment as an exercise of the right of petition. In Thomas _v._ Collins[260] a statute requiring registration before solicitation of union membership was found to violate the right of peaceable assembly. But a closely divided Court subsequently sustained an order of a State Employment Relations Board forbidding work stoppages by the calling of special union meetings during working hours.[261] Finally, a divided Court held June 4, 1951, that a combination to break up by force and threats of force of a meeting called for the purpose of adopting a resolution against the Marshall Plan did not afford a right of action against the conspirators under the Ku Klux Act of April 20, 1871.[262] While the complaint alleged that the conspiracy was entered into for the purpose of depriving the plaintiffs as citizens of the United States of their right "peaceably to assemble for the purpose of discussing and communicating upon national public issues," the Ku Klux Act was found not to extend to violations of that right except by State acts depriving persons of their rights under the Fourteenth Amendment. But the Court, perhaps significantly, left open the question whether Congress can protect such rights against private action. "It is not for this Court," remarked Justice Jackson sententiously, "to compete with Congress or attempt to replace it as the Nation's law-making body."[263] LOBBYING AND THE RIGHT OF PETITION Today lobbying is frequently regarded as the most important expression of the right of petition. During the last half century lobbying has reached tremendous proportions; and there have been four Congressional investigations of such activities, the latest by a Committee of the House of Representatives. Meantime, in 1946 Congress passed the Federal Regulation of Lobbying Act, under which more than 2,000 lobbyists have registered and 495 organizations report lobbying contributions and expenditures.[264] Recently doubts have been cast upon the constitutionality of this statute by two decisions of lower federal courts sitting in the District of Columbia. According to the District Court therein, to subject a person, whose "principal purpose * * * is to aid" in the defeat or passage of legislation and who violates this Act by failing to file a detailed accounting, to a penalty entailing a three-year prohibition from lobbying is to deprive such person of his constitutional rights of freedom of speech and petition.[265] Insofar as Congress legitimately may regulate lobbying, its powers in relation thereto have been declared not to extend to "indirect lobbying by the pressure of public opinion on the Congress." The latter was deemed to be "the healthy essence of the democratic process."[266] Notes [1] 268 U.S. 652 (1925). [2] Ibid. 666. [3] Fiske _v._ Kansas, 274 U.S. 380 (1927). [4] Cantwell _v._ Connecticut, 310 U.S. 296 (1940). [5] Near _v._ Minnesota, 283 U.S. 697 (1931). [6] De Jonge _v._ Oregon, 299 U.S. 353 (1937). [7] Annals of Congress, 434 (1789-1791). [8] Records of the United States Senate, Sept. 9, 1789, United States Archives, cited in Appellees Brief in McCollum _v._ Board of Education, 333 U.S. 203 (1948). [9] Ibid. [10] Ibid. [11] Joseph Story, Commentaries on the Constitution, § 1879 (1833). [12] Ibid. § 1874. [13] Principles of Constitutional Law, 224-225, 3d ed. (1898). [14] Saul K. Padover, The Complete Jefferson, 518-519 (1943). [15] 98 U.S. 145 (1879). [16] Ibid. 164. In his 2d Inaugural Address Jefferson expressed a very different, and presumably more carefully considered, opinion upon the purpose of Amendment I: "In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of of the general government." This was said three years after the Danbury letter. 1 Messages and Papers of the Presidents, 379 (Richardson ed. 1896). [17] Everson _v._ Board of Education, 330 U.S. 1 (1947). [18] Ibid. 15, 16. [19] McCollum _v._ Board of Education, 333 U.S. 203 (1948). [20] Ibid. 212. [21] 333 U.S. 203, 213 (1948). [22] Ibid. 216-218. Justice Frankfurter's principal figure in the fight against sectarianism is Horace Mann, who was secretary of the Massachusetts Board of Education, 1837-1848. Mann, however, strongly resented the charge that he was opposed to religious instruction in the public schools. "It is true that Mr. Mann stood strongly for a 'type of school with instruction adapted to democratic and national ends.' But it is not quite just to him to contrast this type of school with the school adapted to religious ends, without defining terms. Horace Mann was opposed to sectarian doctrinal instruction in the schools, but he repeatedly urged the teaching of the elements of religion common to all of the Christian sects. He took a firm stand against the idea of a purely secular education, and on one occasion said he was in favor of religious instruction 'to the extremest verge to which it can be carried without invading those rights of conscience which are established by the laws of God, and guaranteed to us by the Constitution of the State.' At another time he said that he regarded hostility to religion in the schools as the greatest crime he could commit. Lest his name should go down in history as that of one who had attempted to drive religious instruction from the schools, he devoted several pages in his final Report--the twelfth--to a statement in which he denied the charges of his enemies." Raymond B. Culver, Horace Mann on Religion in the Massachusetts Public Schools, 235 (1929). [23] 333 U.S. 203, 222 ff. (1948). [24] Ibid. 213. [25] Ibid. 225-226. [26] Ibid. 231. [27] Ibid. 232, 234. [28] 333 U.S. 244. [29] Ibid., 253, 254. [30] Zorach _v._ Clauson, 303 N.Y. 161, 168-169; 100 N.E. 2d 403 (1951). [31] Zorach _v._ Clauson, 343 U.S. 306 (1952). [32] Ibid., pp. 313-314. Justices Black, Frankfurter, and Jackson dissented. [33] Doremus _v._ Board of Education, 342 U.S. 429 (1952). [34] Three dissenters, speaking through Justice Douglas, argued that, since the New Jersey Supreme Court had taken the case and decided it on its merits, the United States Supreme Court was bound to do the same. Ibid. 435-436. [35] Bradfield _v._ Roberts, 175 U.S. 291 (1899). [36] Quick Bear _v._ Leupp, 210 U.S. 50 (1908). [37] Cochran _v._ Louisiana State Board of Education, 281 U.S. 370 (1930). [38] Everson _v._ Board of Education, 330 U.S. 1 (1947). [39] 42 U.S.C.A. §§ 1751-1760; 60 Stat. 230 (1940). [40] Davis _v._ Benson, 133 U.S. 333, 342 (1890). [41] Cantwell _v._ Connecticut, 310 U.S. 296, 303, 304 (1940). [42] Pierce _v._ Society of Sisters of Holy Names, 268 U.S. 510 (1925). [43] Reynolds _v._ United States, 98 U.S. 145, 166 (1879). [44] Ibid. 167. [45] Davis _v._ Beason, 133 U.S. 333, 345 (1890). [46] Reynolds _v._ United States 98 U.S. 145 (1879); Davis _v._ Beason, 133 U.S. 333 (1890). [47] 322 U.S. 78 (1944). [48] Ibid. 89. [49] 310 U.S. 296 (1940). [50] Minersville School Dist. _v._ Gobitis, 310 U.S. 586 (1940). [51] Jones _v._ Opelika, 316 U.S. 584 (1942). [52] Jones _v._ Opelika, 319 U.S. 103 (1943); Murdock _v._ Pennsylvania, 319 U.S. 105 (1943). [53] Board of Education _v._ Barnette, 319 U.S. 624 (1943). On the same day the Court held that a State may not forbid the distribution of literature urging and advising, on religious grounds, that citizens refrain from saluting the flag. Taylor _v._ Mississippi, 319 U.S. 583 (1943). [54] Martin _v._ Struthers, 319 U.S. 141 (1943). [55] Prince _v._ Massachusetts, 321 U.S. 158 (1944). [56] 334 U.S. 558 (1948). [57] Kovacs _v._ Cooper, 336 U.S. 77 (1949). [58] Kunz _v._ New York, 340 U.S. 290 (1951). [59] Ibid. 314. [60] Niemotko _v._ Maryland, 340 U.S. 268 (1951). [61] Feiner _v._ New York, 340 U.S. 315 (1951). [62] _See_ p. 1285. [Transcriber's Note: There is no mention of the Feiner case on p. 1285.] [63] Arver _v._ United States, 245 U.S. 366 (1918). [64] 293 U.S. 245 (1934). [65] 325 U.S. 561 (1945). _cf._ Girouard _v._ United States, 328 U.S. 61 (1946) holding "an alien who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, because of religious scruples, is unwilling to bear arms in defense of this country may be admitted to citizenship * * *", overruling United States _v._ Schwimmer, 279 U.S. 644 (1929) and United States _v._ Macintosh, 283 U.S. 605 (1931). [66] 325 U.S. 561, 578 (1945). [67] Commentaries, Vol. IV, 151-152. [68] Justice Frankfurter in Dennis _v._ United States, 341 U.S. 494, 521-522 (1951). [69] Ibid. 524; citing Robertson _v._ Baldwin, 165 U.S. 275, 281 (1897). [70] Ibid. 524; citing Gompers _v._ United States, 233 U.S. 604, 610 (1914). "While the courts have from an early date taken a hand in crystallizing American conceptions of freedom of speech and press into law, it is scarcely in the manner or to the extent which they are frequently assumed to have done. The great initial problem in this realm of constitutional liberty was to get rid of the common law of 'seditious libel' which operated to put persons in authority beyond the reach of public criticism. The first step in this direction was taken in the famous, or infamous, Sedition Act of 1798, which admitted the defense of truth in prosecution brought under it, and submitted the general issue of defendant's guilt to the jury. But the substantive doctrine of 'seditious libel' the Act of 1798 still retained, a circumstance which put several critics of President Adams in jail, and thereby considerably aided Jefferson's election as President in 1800. Once in office, nevertheless, Jefferson himself appealed to the discredited principle against partisan critics. Writing his friend Governor McKean of Pennsylvania in 1803 anent such critics, Jefferson said: 'The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked in an opposite direction; that is by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. * * * This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this, if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.' Works (Ford ed., 1905), IX 451-52. "In the _Memorial Edition_ of Jefferson's works this letter is not included; nor apparently was it known to the Honorable Josephus Daniels, whose enthusiastic introduction to one of these volumes makes Jefferson out to have been the father of freedom of speech and press in this country, if not throughout the world. The sober truth is that it was that archenemy of Jefferson and of democracy, Alexander Hamilton, who made the greatest single contribution toward rescuing this particular freedom as a political weapon from the coils and toils of the common law, and that in connection with one of Jefferson's 'selected prosecutions.' I refer to Hamilton's many-times quoted formula in the Croswell case in 1804: 'The liberty of the press is the right to publish with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals.' People _v._ Croswell, 3 Johns (NY) 337. Equipped with this brocard our State courts working in co-operation with juries, whose attitude usually reflected the robustiousness of American political discussion before the Civil War, gradually wrote into the common law of the States the principle of 'qualified privilege,' which is a notification to plaintiffs in libel suits that if they are unlucky enough to be officeholders or office seekers, they must be prepared to shoulder the almost impossible burden of showing defendant's 'special malice.' Cooley, _Constitutional Limitations_, Chap. XII: Samuel A. Dawson, _Freedom of the Press, A Study of the Doctrine of 'Qualified Privilege'_ (Columbia Univ. Press, 1924)." Edward S. Corwin, _Liberty Against Government_. 157-159 fn. (L.S.U. Press, 1948). [71] Patterson _v._ Colorado, 205 U.S. 454, 462 (1907). [72] Ibid. 461 [73] Prudential Ins. Co. _v._ Cheek, 259 U.S. 530, 543 (1922). [74] Schenck _v._ United States, 249 U.S. 47 (1919); and _see_ below. [Transcriber's Note: Reference is to Footnote 75, below.] [75] _See_ Justice Brandeis concurring opinion in Whitney _v._ California, 274 U.S. 357 (1927); and cases reviewed below. [76] Fiske _v._ Kansas, 274 U.S. 380 (1927). [77] 133 U.S. 333 (1890). [78] Ibid. 341-342. [79] 236 U.S. 273 (1915). [80] Fiske _v._ Kansas, 274 U.S. 380 (1927). [81] Stromberg _v._ California, 283 U.S. 359 (1931). [82] De Jonge _v._ Oregon, 299 U.S. 353 (1937). [83] 249 U.S. 47 (1919). [84] 40 Stat. 217, 219. [85] 205 U.S. 454, 462 (1907). [86] 249 U.S. 47, 51-52 (1919). [87] 249 U.S. 204 (1919). [88] Ibid. 206. [89] 249 U.S. 211 (1919). [90] Ibid. 215-216. [91] 250 U.S. 616 (1919). [92] Ibid. 627. It should be noted that Justice Holmes couples with his invocation of the clear and present danger test in his dissent in this case the contention that rightly construed the act of Congress involved (The Espionage Act of May 16, 1918; 40 Stat. 553) required that defendant's intent be specifically proved. He wrote: "I am aware of course that the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless to aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. It seems to me that this statute must be taken to use its words in a strict and accurate sense." 250 U.S. at 626-627. In the Holmes-Pollock Letters this is the main point discussed by the two correspondents regarding the Abrams Case; the clear and present danger doctrine is not mentioned. 2 Holmes-Pollock Letters, 29, 31, 32, 42, 44-45, 48, 65. [93] 251 U.S. 466 (1920). [94] Ibid. 479. _See also_ to the same effect: Pierce _v._ United States, 252 U.S. 239 (1920). [95] 268 U.S. 652 (1925). [96] Ibid. 668, 669. [97] Ibid. 670. [98] Ibid. 671. Justice Holmes presented a dissenting opinion for himself and Justice Brandeis which contains a curious note of fatalism. He said: "If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this Manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." Ibid. 673. [99] 274 U.S. 357 (1927). [100] Ibid. 373, 377. Apparently this means that the ultimate test of the constitutionality of legislation restricting freedom of utterance is whether there is still sufficient time to educate the utterers out of their mistaken frame of mind, and the final say on this necessarily recondite matter rests with the Supreme Court! Justice Brandeis also asserts (274 U.S. at 376) that there is a distinction between "advocacy" and "incitement," but fails to adduce any supporting authority. [101] 301 U.S. 242 (1937). [102] Ibid. 261-263. [103] 310 U.S. 88 (1940). [104] Ibid. 105. [105] Cantwell _v._ Connecticut, 310 U.S. 296, 308 (1940). [106] Stromberg _v._ California, 283 U.S. 359, 369 (1931). [107] Fox _v._ Washington, 236 U.S. 273, 277 (1915). [108] Gitlow _v._ New York, 268 U.S. 652 (1925). [109] Terminiello _v._ Chicago, 337 U.S. 1 (1949). [110] Ibid. 4. [111] Ibid. 33. Dissenting opinions were written by Chief Justice Vinson, Justice Frankfurter (with whom Justices Jackson and Burton concurred) and Justice Jackson, (with whom Justice Burton agreed). [112] 340 U.S. 315 (1951). [113] Ibid. 319-320. Anent this finding, Justice Douglas, in his dissent, declared that: "Public assemblies and public speech occupy an important role in American life. One high function of the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. * * * But those extravagances * * *, do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct. * * * If * * * the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censorship has all the vices of the censorship from city halls which we have repeatedy [sic] struck down."--Ibid. 330-331. [114] 333 U.S. 507 (1948). [115] Ibid. 514-515. [116] Musser _v._ Utah, 333 U.S. 95 (1948). [117] Ibid. 101. This dissent probably marks the climax of the clear and present danger doctrine. "On March 20, 1949, members of the Vice Squad of the Philadelphia Police Department, at the direction of Inspector Craig Ellis, head of the Vice Squad, commenced a series of mass raids upon book stores and booksellers in Philadelphia. Inspector Ellis gave his men a list of books that in his opinion were obscene, and directed them to seize the books wherever found. Fifty-four booksellers were raided, and nearly twelve hundred copies of the books were confiscated. "These raids were remarkable not only because of the scale on which they were conducted, but in several other respects. First, they were directed in major part against books written by authors in the forefront of American literature and published by some of the leading publishers in America. Second, the raids were conducted and the books were confiscated without warrants of search or seizure or court order of any kind. Third, the list of books to be seized was compiled by Inspector Ellis and a patrolman in his office, without consultation with the District Attorney's office or the obtaining of any legal opinion as to whether the books were obscene under the Pennsylvania statute. "For once the publishers took the offensive. Houghton Mifflin Company, publisher of _Raintree County_, Alfred A. Knopf, Inc., publisher of _Never Love a Stranger_, and The Vanguard Press, Inc., publisher of books by James T. Farrell and Calder Willingham among those seized, commenced actions in the Federal District Court in Philadelphia to restrain further police seizures of these books and to recover damages from the police officers for their unlawful acts. In these two actions the authors Harold Robbins and James T. Farrell, as well as Charles Praissman, a courageous bookseller whose stores had been raided, joined the publishers as parties plaintiff. The District Attorney of Philadelphia countered by commencing criminal proceedings against five of the booksellers whose stores had been raided, and on June 30, 1948 the grand jury, upon presentation of the District Attorney, indicted the booksellers on a charge of having violated the Pennsylvania statute prohibiting the sale of obscene books. "In the meantime the Federal court cases brought by the publishers has come to trial before Judge Guy K. Bard, and at the conclusion of the trials Judge Bard had enjoined further seizures of the plaintiff's books, as well as police invasion of Praissman's stores or seizure of his books without a warrant. At the time of this writing, the Federal court cases have not been finally decided. "On January 3, 1949 the criminal cases came on for trial before Judge Curtis Bok of the Pennsylvania Court of Quarter Sessions. The defendants pleaded not guilty and waived trial by jury. They stipulated that at the times and places mentioned in the indictments they had had possession of the books for the purpose of offering them for sale to the public. The books were then placed in evidence, and the prosecution rested its case. The defendants 'demurred to the evidence,' the effect of which was to raise the issue of whether the court, in the light of the constitutional guaranty of freedom of the press, could hold, beyond a reasonable doubt, that the books before it were obscene within the meaning of the Pennsylvania obscenity statute." Introductory note to a republication by Alfred Knopf Inc. of Judge Bok's opinion in Commonwealth _v._ Gordon _et al._, 66 D & C (Pa.) 101 (1949). On March 18, 1949 Judge Bok sustained the demurrers and entered judgment in favor of the defendants. The opinion which accompanies his judgment pivots in part on the clear and present danger rule. It reads: "The only clear and present danger to be prevented by section 524 that will satisfy both the Constitution and the current customs of our era is the imminence of the commission of criminal behavior resulting from the reading of a book. Publication alone can have no such automatic effect." This obviously overlooks the primary purpose of governmental interference with the distribution of "obscene literature," namely to protect immature minds from contamination. Dealing with this point Judge Bok protests against putting "the entire reading public at the mercy of the adolescent mind." Should, on the other hand, the adolescent mind be put at the mercy of the uninhibited reading tastes of an elderly federal judge? [118] 310 U.S. 88 (1940). [119] 310 U.S. 106 (1940). [120] Thornhill _v._ Alabama, 310 U.S. 88, 102, 105 (1940). [121] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); _See also_ Hotel and Restaurant Employees' Alliance _v._ Board, 315 U.S. 437 (1942). [122] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287, 293 (1941). [123] American Federation of Labor _v._ Swing, 312 U.S. 321 (1941); Bakery and Pastry Drivers _v._ Wohl, 315 U.S. 769 (1942); Cafeteria Employees Union _v._ Gus Angelos, 320 U.S. 293 (1943). [124] Teamsters Union _v._ Hanke, 339 U.S. 470, 474 (1950). [125] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949). [126] Building Service Union _v._ Gazzam, 339 U.S. 532 (1950). [127] Hughes _v._ Superior Court, 339 U.S. 460 (1950). [128] Carpenters Union _v._ Ritter's Cafe, 315 U.S. 722, 728 (1942). [129] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949). [130] Ibid. 501, 502, citing Fox _v._ Washington, 236 U.S. 273, 277, which predates any suggestion of the clear and present danger formula. _See_ above. [Transcriber's Note: Reference is to Section CONTRASTING OPERATION OF THE COMMON LAW RULE, above.] [131] Lincoln Union _v._ Northwestern Co., 335 U.S. 525 (1949); A.F. of L. _v._ American Sash Co., ibid., 538. [132] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949). In Teamsters Union _v._ Hanke, 339 U.S. 470 (1950), injunctions by State courts against picketing of a self-employer's place of business to compel him to adopt a union shop were sustained. [133] Thomas _v._ Collins, 323 U.S. 516 (1945). [134] Ibid. 566. [135] Patterson _v._ Colorado, 205 U.S. 454 (1907). _Cf._ Toledo Newspaper Co. _v._ United States, 247 U.S. 402 (1918) in which the Court affirmed a judgment imposing a fine for contempt of court on an editor who had criticized the action of a federal judge in a pending case. The majority held that such conviction did not violate the First Amendment. Justices Holmes and Brandeis dissented on the ground that the proceedings did not come within the applicable federal statute, but did not discuss the constitutional issue. This decision was overruled in Nye _v._ United States, 313 U.S. 33 (1941). [136] 314 U.S. 252 (1941). [137] Ibid. 271. [138] Ibid. 283, 284. [139] 328 U.S. 331 (1946). [140] Ibid. 350. [141] Ibid. 349. [142] 331 U.S. 367 (1947). [143] Ibid. 376. [144] Davis _v._ Massachusetts, 107 U.S. 43 (1897). [145] Ibid. 47. [146] 307 U.S. 496, 515, 516 (1939). [147] 334 U.S. 558 (1948). [148] Kovacs _v._ Cooper, 336 U.S. 77 (1949). [149] Public Utilities Commission _v._ Pollak, 343 U.S. 451 (1952). The decision overruled the United States Court of Appeals for the District of Columbia. Here Judge Edgerton, speaking for himself and two associates, said: "Exploitation of this audience through assault on the unavertible sense of hearing is a new phenomenon. It raises 'issues that were not implied in the means of communication known or contemplated by Franklin and Jefferson and Madison.' But the Bill of Rights, as appellants say in their brief, can keep up with anything an advertising man or an electronics engineer can think of. * * * "If Transit obliged its passengers to read what it liked or get off the car, invasion of their freedom would be obvious. Transit obliges them to hear what it likes or get off the car. Freedom of attention, which forced listening destroys, is a part of liberty essential to individuals and to society. The Supreme Court has said that the constitutional guarantee of liberty 'embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties * * *.' One who is subjected to forced listening is not free in the enjoyment of all his faculties." He quoted with approval Justice Reed's statement in Kovacs _v._ Cooper, "The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners."--191 F. 2d 450, 456 (1951). [150] Lovell _v._ Griffin, 303 U.S. 444 (1938); Schneider _v._ State, 308 U.S. 147 (1939); Largent _v._ Texas, 318 U.S. 418 (1943). [151] Schneider _v._ State, 308 U.S. 147 (1930); Jamison _v._ Texas, 318 U.S. 413 (1943). [152] Marsh _v._ Alabama, 326 U.S. 501 (1946). [153] Tucker _v._ Texas, 326 U.S. 517 (1946). [154] Valentine _v._ Chrestensen, 316 U.S. 52 (1942). [155] Martin _v._ Struthers, 319 U.S. 141 (1943). [156] Breard _v._ Alexandria, 341 U.S. 622 (1951). [157] 221 U.S. 418, 439 (1911). _See_ below. [Transcriber's Note: Reference is to Section FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS, above.] [158] Near _v._ Minnesota, 283 U.S. 697 (1931). [159] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); Carpenters Union _v._ Ritter's Cafe, 315 U.S. 722 (1942). [160] 315 U.S. 568 (1942). [161] 319 U.S. 624 (1943). [162] 315 U.S. 568, 571, 572 (1942). [163] 319 U.S. 624, 633 (1943). [164] Lovell _v._ Griffin, 303 U.S. 444, 451 (1938). [165] Chaplinsky _v._ New Hampshire, 315 U.S. 568 (1942); Cox _v._ New Hampshire, 312 U.S. 569 (1941). [166] Lovell _v._ Griffin, 303 U.S. 444 (1938); Hague _v._ C.I.O., 307 U.S. 496, 516 (1939); Schneider _v._ State, 308 U.S. 147 (1939); Cantwell _v._ Connecticut, 310 U.S. 296 (1940); Largent _v._ Texas, 318 U.S. 418 (1943); Thomas _v._ Collins, 323 U.S. 516, 538 (1945); Saia _v._ New York, 334 U.S. 558 (1948). [167] Radio Comm'n _v._ Nelson Bros. Co., 289 U.S. 266 (1933); Communications Comm'n. _v._ N.B.C., 319 U.S. 239 (1943). [168] Mutual Film Corp. _v._ Ohio Indus'l Comm., 236 U.S. 230, 244 (1915). [169] 334 U.S. 131 (1948). [170] Ibid. 166. [171] Joseph Burstyn, Inc. _v._ Wilson, 343 U.S. 495 (1952). [172] Ibid. 502. Justice Frankfurter, concurring for himself and Justices Jackson and Burton, elaborates upon the vagueness of connotation of the New York Court's use of the word "sacrilegious." _See_ Appendix to his opinion, Ibid. 533-40. Justice Reed, in his concurring opinion, suggests that the Court will now have the duty of examining "the facts of the refusal of a license in each case to determine whether the principles of the First Amendment have been honored." Ibid. 506-507. [173] 314 U.S. 252 (1941). [174] Ibid. 263. [175] 323 U.S. 516 (1945). [176] Ibid. 529-530. [177] Palko _v._ Connecticut, 302 U.S. 319, 327 (1937). [178] United States _v._ Carolene Products Co., 304 U.S. 144, 152, fn. 4 (1938). [179] 328 U.S. 331 (1946). [180] Ibid. 353. [181] Kovacs _v._ Cooper, 336 U.S. 77, 88 (1949). [182] Ibid. 90. [183] Brinegar _v._ United States, 338 U.S. 160, 180 (1949). [184] Terminiello _v._ Chicago, 337 U.S. 1, 4 (1949). [185] Kunz _v._ New York, 340 U.S. 290, 302. [186] Ibid. 309. In a footnote Justice Jackson points to the peculiarly protected position of the Court today, thanks to ch. 479, Public Law 250, 81st Congress, approved August 18, 1949. This makes it unlawful to "make any harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds." § 5. It also forbids display of any "flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." § 6. Moreover, it authorizes the marshal to "prescribe such regulations approved by the Chief Justice of the United States, as may be deemed necessary for the adequate protection of the Supreme Court Building and grounds and of persons and property therein, and for the maintenance of suitable grounds." § 7. Violation of these provisions or regulations is an offense punishable by fine and imprisonment. [187] Grosjean _v._ American Press Co., 297 U.S. 233, 246 (1936). [188] Ibid. 250. [189] Ibid. [190] Murdock _v._ Pennsylvania, 319 U.S. 105 (1943); Jones _v._ Opelika, 319 U.S. 103 (1943); Follett _v._ McCormick, 321 U.S. 573 (1944). [191] Associated Press _v._ United States, 326 U.S. 1 (1945). A newspaper publisher who enjoyed a substantial monopoly of mass distribution of news was enjoined from refusing advertising from persons advertising over a competing radio station. The Court sustained the injunction against the objection that it violated freedom of the press, holding that appellant was guilty of attempting to monopolize interstate commerce. Lorain Journal _v._ United States, 342 U.S. 143 (1951). [192] Associated Press _v._ Labor Board, 301 U.S. 103, 133 (1937). [193] Okla. Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946). [194] 221 U.S. 418 (1911). [195] Ibid. 430. [196] 314 U.S. 469 (1941). [197] Ibid: 477. [198] Ibid. 478. [199] United States _v._ C.I.O., 335 U.S. 106 (1948). [200] 106 U.S. 371 (1882). [201] 19 Stat. 143 § 6 (1876). [202] 53 Stat. 1147 (1939). [203] United Public Workers _v._ Mitchell, 330 U.S. 75 (1947). [204] Oklahoma _v._ United States Civil Serv. Comm., 330 U.S. 127 (1947). [205] Schenck _v._ United States, 249 U.S. 47 (1919); Frohwerk _v._ United States, 249 U.S. 204 (1919); Debs _v._ United States, 249 U.S. 211 (1919); Abrams _v._ United States, 250 U.S. 616 (1919); Schaefer _v._ United States, 251 U.S. 466 (1919); Pierce _v._ United States, 252 U.S. 239 (1920); _cf._ Gilbert _v._ Minnesota 254 U.S. 325 (1920); Hartzel _v._. United States, 322 U.S. 680 (1944). [206] 341 U.S. 494 (1951). [207] 61 Stat. 136, 146 (1947); "Taft-Hartley Act." [208] 339 U.S. 382 (1950). [209] 339 U.S. 846 (1950). Answering in 1882 the objection of a pensioner to the terms of an act under which he received his pension from the Government, the Court answered: "Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute or recall, at its discretion." United States _v._ Teller, 107 U.S. 64, 68. Can it be doubted that Congress has power to repeal at any time the protection which present legislation affords organized labor? [210] 339 U.S. 382, 394, 397 (1950). [211] Dennis _v._ United States, 341 U.S. 494 (1951). [212] 54 Stat. 670 (1940). [213] 341 U.S. 494, 509. [214] Ibid. 509. [215] Ibid. 510; citing 183 F. (2d) at 212. [216] 341 U.S. 494, 510-511. [217] Ibid. 513. [218] 341 U.S. 494, 519-520. [219] Ibid. 525. [220] Ibid. 527-528. [221] 341 U.S. 494, 539. [222] 268 U.S. 652 (1925). [223] 341 U.S. 494, 541. [224] Ibid. 542. [225] Ibid. 551-552. [226] 341 U.S. 494, 567-569. [227] Ibid. 572. [228] 341 U.S. 494, 586; citing 274 U.S. 357, 376-377. [229] Anti-Fascist Committee _v._ McGrath, 341 U.S. 123 (1951) heads the list. [230] 341 U.S. 494 (1951). [231] 339 U.S. 382; ibid. 846 (1950). [232] 341 U.S. 716 (1951). [233] 342 U.S. 485 (1952). [234] New York Laws, 1949, c. 360. [235] 342 U.S. 485, 493. Justice Frankfurter dissented on jurisdictional grounds. Justices Black and Douglas attacked the merits of the decision. Said the latter: "What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A 'party line'--as dangerous as the 'party line' of the Communists--lays hold. It is the 'party line' of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin." Ibid. 510. [236] 343 U.S. 250 (1952). [237] Ibid. 258. [238] Ibid, 259-263 _passim_. Justice Douglas, dissenting, urged the "absolute" character of freedom of speech and deplored recent cases in which, he asserted, the Court "has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate 'within reasonable length' the right of free speech. This to me is an ominous and alarming trend." Ibid. 285. Justices Black, Reed and Jackson also dissented. Justice Jackson's dissenting opinion is characteristically paradoxical: "An Illinois Act, construed by its Supreme Court to be a 'group libel' statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites? The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth amendment does confine the power of the State to make printed words criminal. Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed--comforted in the acknowledgment, however, by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power. The thesis now tendered in dissent is that the 'liberty' which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical 'freedom of speech or of the press' which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not 'incorporate' the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not." Ibid. 287-288. Proceeding from this position, Justice Jackson is able, none the less, to dissent from the Court's judgment. _Cf._ Chief Justice Stone's position in United States _v._ Carolene Products Co., 304 U.S. 144, at 152-53, note 4 (1938). [239] 20 Stat. 355, 358 (1879); 48 Stat. 928 (1934). [240] 327 U.S. 146 (1946). [241] Ibid. 158. Justice Frankfurter, while concurring, apparently thought that the question of Congress's power in the premises was not involved. Ibid. 159-160. On this broader question, _see_ p. 269. (The Postal Clause). [242] 333 U.S. 178 (1948); Public Clearing House _v._ Coyne, 194 U.S. 497 (1904). [243] Here it is recited in part: "That if we, our justiciary, our bailiffs, or any of our officers, shall in any circumstances have failed in the performance of them toward any person, or shall have broken through any of these articles of peace and security, and the offence be notified to four barons chosen out of the five-and-twenty before mentioned, the said four barons shall repair to us, or our justiciary, if we are out of the realm, and laying open the grievance, shall petition to have it redressed without delay." [244] 12 Encyclopedia of the Social Sciences, 98 ff, "Petition, Right of" (New York, 1934). [245] United States _v._ Cruikshank, 92 U.S. 542, 552 (1876) reflects this older view. [246] De Jonge _v._ Oregon, 299 U.S. 353, 364, 365 (1937). _See also_ Herndon _v._ Lowry, 301 U.S. 242 (1937). [247] For the details of Adams' famous fight on "The Gag Rule," _see_ Andrew C. McLaughlin, A Constitutional History of the United States, pp. 478-481, Appleton-Century-Crofts, Inc., New York (1935). [248] Rules and Manual United States House of Representatives (1949), Eighty-first Congress, by Lewis Deschler, Parliamentarian, United States Government Printing Office, Washington (1949), pp. 430-433. [249] United States _v._ Baltzer, Report of the Attorney General, 1918, p. 48. [250] 92 U.S. 542 (1876). [251] 16 Stat. 141 (1870). [252] 92 U.S. 542, 552-553 (1876). At a later point in its opinion the Court used the following language: "Every republican government is in duty bound to protect all its citizens in the enjoyment of an equality of right. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty." Ibid. 555. These words have reference, quite clearly, to counts of the indictment alleging acts of the conspirators denying "equal protection of the laws" "to persons of color," Congress's power to protect which is derived from Amendment XIV and is confined as the Court says, to protection against State acts. The above quoted words have, however, caused confusion. _See_ pp. 1176-1177. [253] Hague _v._ C.I.O., 307 U.S. 496 (1939). [254] 49 Stat. 449 (1935). [255] 307 U.S. 496, 515-516 (1939). [256] Ibid. 525. [257] "As to the American Civil Liberties Union, which is a corporation, it cannot be said to be deprived of the civil rights of freedom of speech and of assembly, for the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons. Northwestern Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243, 255; Western Turf Asso. _v._ Greenberg, 204 U.S. 359, 363;" 307 U.S. 496, 527 (1939). _See also_ ibid. 514. [258] 167 U.S. 43 (1897). This case was treated above, at p. 784. [259] 314 U.S. 252 (1941). [260] 323 U.S. 516 (1945). [261] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949). [262] Collins _v._ Hardyman, 341 U.S. 651 (1951); 17 Stat. 13, 8 U.S.C. § 47 (3). [263] 341 U.S. 651, 663 (1951). [264] 2 U.S.C. §§ 261-270. _See also:_ General Interim Report of the House Select Committee on Lobbying Activities, Eighty-First Congress, Second Session, created pursuant to H. Res. 298, October 20, 1950, United States Government Printing Office, Washington (1950): _see also_ 9 Encyclopedia of the Social Sciences 567, "Lobbying." [265] National Association of Manufacturers _v._ McGrath, 103 F. Supp. 510 (1952). Upon review, the Supreme Court vacated this judgment as moot.--334 U.S. 804, 807. [266] Rumely _v._ United States, 197 F. 2d 166, 174-175 (1952). AMENDMENT 2 BEARING ARMS Amendment 2 A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. The protection afforded by this amendment prevents infringement by Congress of the right to bear arms for a lawful purpose, but does not apply to such infringement by private citizens. For this reason an indictment under the Enforcement Act of 1870,[1] charging a conspiracy to prevent Negroes from bearing arms for lawful purposes was held defective.[2] A State statute which forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, does not abridge the right of the people to keep and bear arms.[3] In the absence of evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well regulated militia, the Court refused to hold invalid a provision in the National Firearms Act[4] against the transportation of unregistered shotguns in interstate commerce.[5] Notes [1] 16 Stat. 140 (1870). [2] United States _v._ Cruikshank, 92 U.S. 542, 553 (1876). [3] Presser _v._ Illinois, 116 U.S. 252, 265 (1886). [4] 48 Stat. 1236 (1934). [5] United States _v._ Miller, 307 U.S. 174 (1939). AMENDMENT 3 QUARTERING SOLDIERS Amendment 3 No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. "This amendment seems to have been thought necessary. It does not appear to have been the subject of judicial exposition; and it is so thoroughly in accord with all our ideas, that further comment is unnecessary."[1] Notes [1] Miller, Samuel F., The Constitution (1893), page 646. AMENDMENT 4 SEARCHES AND SEIZURES Page Coverage of the amendment 823 Necessity, sufficiency and effect of warrants 825 Records, reports and subpoenas 825 Search and seizure incidental to arrest 828 Search of vehicles 830 Use of evidence 830 SEARCHES AND SEIZURES Amendment 4 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Coverage of the Amendment This amendment denounces only such searches and seizures as are "unreasonable," and is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner to conserve public interests as well as the rights of individuals.[1] It applies only to governmental action, not to the unlawful acts of individuals in which the government has no part.[2] It has no reference to civil proceedings for the recovery of debts; consequently, a distress warrant issued by the Solicitor of the Treasury under an act of Congress is not forbidden, though issued without support of an oath or affirmation.[3] But the amendment is applicable to search warrants issued under any statute, including revenue and tariff laws.[4] Security "in their persons, houses, papers and effects" is assured to the people by this article. Not only the search of a dwelling, but also of a place of business,[5] a garage,[6] or a vehicle,[7] is limited by its provisions. But open fields are not covered by the term "house"; they may be searched without a warrant.[8] A sealed letter deposited in the mails may not be opened by the postal authorities without the sanction of a magistrate.[9] The subpoena of private papers is subject to its test of reasonableness.[10] Retention for use as evidence of a letter voluntarily written by a prisoner, which, without threat or coercion, came into the possession of prison officials under the practice and discipline of the institution, is not prohibited.[11] Where officers demand admission to private premises in the name of the law, their subsequent explorations are searches within the meaning of the Constitution, even though the occupant opens the door to admit them.[12] A peremptory demand by federal officers that a person suspected of crime open a locked room and hand over ration coupons kept there was held not to amount to a seizure in view of the fact that the coupons were government property which the custodian was under a duty to surrender.[13] Neither wiretapping,[14] nor the use of a detectaphone to listen to a conversation in an adjoining room,[15] nor interrogation under oath by a government official of a person lawfully in confinement[16] is within the purview of this article. Nor does it apply to statements made by an accused on his own premises to an "undercover agent" whose identity was not suspected and who had on his person a radio transmitter which communicated the statements to another agent outside the building.[17] Said Justice Jackson for the Court: "Petitioner relies on cases relating to the more common and clearly distinguishable problems raised where tangible property is unlawfully seized. Such unlawful seizure may violate the Fourth Amendment, even though the entry itself was by subterfuge or fraud rather than force. But such decisions are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods."[18] But narcotics seized in a hotel room during absence of the owner, in the course of a search without warrant for either search or arrest, were not adducible as evidence against the owner, who, however, was not entitled to have them returned since they were legal contraband.[19] Necessity, Sufficiency and Effect of Warrants A warrant of commitment by a justice of the peace must state a good cause certain and be supported by oath.[20] A notary public is not authorized to administer oaths in federal criminal proceedings; hence a warrant based on affidavits verified before a notary is invalid.[21] A warrant of the Senate for attachment of a person who ignored a subpoena from a Senate committee is supported by oath within the requirement of this amendment when based upon the committee's report of the facts of the contumacy, made on the committee's own knowledge and having the sanction of the oath of office of its members.[22] A belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search without a warrant.[23] A warrant issued upon an information stating only that "affiant has good reason to believe and does believe" that defendant has contraband materials in his possession is clearly bad under the Fourth Amendment.[24] It is enough, however, if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that the offense charged had been committed.[25] The requirement of the Fourth Amendment that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken nothing is left to the discretion of the officer executing the warrant.[26] Private papers of no pecuniary value, in which the sole interest of the Federal Government is their value as evidence against the owner in a contemplated criminal prosecution, may not be taken from the owner's house or office under a search warrant.[27] Records, Reports and Subpoenas Since the common law did not countenance compulsory self incrimination, many years passed before the Supreme Court was called upon to interpret the constitutional provisions bearing upon the privilege against such testimonial compulsion. Not until Boyd _v._ United States[28] did it have to meet the issue; there, pursuant to an act of Congress, a court had issued an order in a proceeding for the forfeiture of goods for fraudulent nonpayment of customs duties, requiring the claimant to produce in court his invoices covering the goods, on pain of having the allegation taken as confessed against him. The order and the statute which authorized it were held unconstitutional in a notable opinion by Justice Bradley, as follows: "Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is [forbidden] * * * In this regard the Fourth and Fifth Amendments run almost into each other."[29] Thus the case established three propositions of far-reaching significance: (1) that a compulsory production of the private papers of the owner in such a suit was a search and seizure within the meaning of the Fourth Amendment;[30] (2) that in substance such seizure compelled him to be a witness against himself in violation of Amendment V,[31] and (3) that, because it was a violation of the Fifth Amendment, it was also an _unreasonable_ search and seizure under the Fourth.[32] Only natural persons can resist the subpoena of private papers on the ground of self incrimination.[33] Even an individual cannot refuse to produce records which are in his custody on the plea that they might incriminate the owner or himself where the documents belong to a corporation,[34] or to a labor union.[35] A bankrupt can be compelled to turn over records which are part of his estate.[36] Papers already in the custody of a United States court in consequence of their having been used by the owner himself as evidence on another proceeding may be used before a grand jury as a basis for an indictment for perjury.[37] A corporation may challenge an order for the production of records if it is unreasonable on grounds other than self incrimination, i.e., if it is too sweeping,[38] if the information sought is not relevant to any lawful inquiry,[39] or if it represents "a fishing expedition" in quest of evidence of crime.[40] In Oklahoma Press Pub. Co. _v._ Walling,[41] the question of the protection afforded by the Constitution against the subpoena of corporate records was thoroughly reviewed. Justice Rutledge summarized the Court's views in the following words: "* * * the Fifth Amendment affords no protection by virtue of the self incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable. * * * It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. * * * The requirement of 'probable cause, supported by oath or affirmation,' literally applicable in the case of a warrant is satisfied, in that of an order for production, by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in 'describing the place to be searched, and the persons or things to be seized,' also literally applicable to warrant, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry."[42] As a means of enforcing a valid statute, the Government may require any person subject thereto "to keep a record showing whether he has in fact complied with it,"[43] and to submit that record to inspection by government officers.[44] It may also compel the filing of returns disclosing the amount of tax liability,[45] and of reports under oath showing instances where employees have worked in excess of hours of labor permitted by law.[46] Without violating either the Fourth or Fifth Amendments, a judicial decree enjoining illegal practices under the Antitrust Act may provide that the Department of Justice shall be given access to all records and documents of the corporation relating to the matter covered by the decree.[47] The Supreme Court has intimated, however, that record keeping requirements must be limited to data which are relevant to the effective administration of the law.[48] Search and Seizure Incidental to Arrest The right to search the person upon arrest has long been recognized[49] but authority to search the premises upon which the arrest is made has been approved only in recent years. In Agnello _v._ United States,[50] the Supreme Court asserted that: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."[51] Books and papers used to carry on a criminal enterprise, which are in the immediate possession and control of a person arrested for commission of an offense in the presence of the officers may be seized when discovered in plain view during a search of the premises following the arrest.[52] The lawful arrest of persons at their place of business does not justify a search of desks and files in the offices where the arrest is made and seizure of private papers found thereon.[53] A search which is unlawfully undertaken is not made valid by the evidence of crime which it brings to light.[54] By a five to four decision in Harris _v._ United States[55] the Court sustained, as an incident to a lawful arrest, a five hour search by four federal officers of every nook and cranny of a four-room apartment. It also upheld the seizure of papers unrelated to the crime for which the arrest was made, namely, Selective Service Registration cards which were discovered in a sealed envelope in the bottom of a bureau drawer. In justification of this conclusion, Chief Justice Vinson wrote: "Here the agents entered the apartment under the authority of lawful warrants of arrest. Neither was the entry tortious nor was the arrest which followed in any sense illegal. * * * The search was not a general exploration but was specifically directed to the means and instrumentalities by which the crimes charged had been committed, particularly the two canceled checks of the Mudge Oil Company. * * * If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated."[56] In a dissenting opinion in which Justices Murphy and Rutledge concurred, Justice Frankfurter challenged the major premises announced by the Court. "To derive from the common law right to search the person as an incident of his arrest the right of indiscriminate search of all his belongings, is to disregard the fact that the Constitution protects [against] both unauthorized arrest and unauthorized search. Authority to arrest does not dispense with the requirement of authority to search. * * * But even if the search was reasonable, it does not follow that the seizure was lawful. If the agents had obtained a warrant to look for the canceled checks, they would not be entitled to seize other items discovered in the process. * * * The Court's decision achieves the novel and startling result of making the scope of search without warrant broader than an authorized search."[57] A more limited search in connection with an arrest was held valid in United States _v._ Rabinowitz.[58] In that case, government officers, armed with a valid warrant for arrest, had arrested respondent in his one-room office which was open to the public. Thereupon, over his objection, they searched the desk, safe and file cabinets in the office for about an hour and a half and seized 573 forged and altered stamps. Justice Minton assigned five reasons for holding that the search and seizure was reasonable: "(1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money."[59] This decision also overruled an intermediate case, Trupiano _v._ United States,[60] whereby the practical effect of the Harris decision had been circumscribed by a ruling that even where a valid arrest is made, a search without a warrant is not permissible if the circumstances make it feasible to procure a warrant in advance. Search of Vehicles The Fourth Amendment has been construed "* * *, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where is it not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * * The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."[61] Where officers have reasonable grounds for searching an automobile which they are following, a search of the vehicle immediately after it has been driven into an open garage is valid.[62] The existence of reasonable cause for searching an automobile does not, however, warrant the search of an occupant thereof, although the contraband sought is of a character which might be concealed on the person.[63] Use of Evidence To remove the temptation to ignore constitutional restraints on search and seizure, evidence obtained in violation thereof is made inadmissible against an accused in federal courts.[64] This is contrary to the practice prevailing in the majority of States and has been severely criticized as a matter of principle.[65] The Court has intimated recently that the federal exclusionary rule is not a command of the Fourth Amendment, but merely a judicially created rule of evidence which Congress could overrule. In Wolf _v._ Colorado,[66] it ruled that while that amendment is binding on the States, it does not prevent State courts from admitting evidence obtained by illegal search. With respect to the federal rule, Justice Frankfurter said: "* * * though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress, under its legislative powers, were to pass a statute purporting to negate the _Weeks_ doctrine. We would then be faced with the problem of the respect to be accorded the legislative judgment on an issue as to which, in default of that judgment, we have been forced to depend upon our own."[67] This rule does not prevent the use of evidence unlawfully obtained by individuals,[68] or by State officers,[69] unless federal agents had a part in the unlawful acquisition,[70] or unless the arrest and search were made for an offense punishable only by federal law.[71] A search is deemed to be "a search by a federal official if he had a hand in it; * * * [but not] if evidence secured by State authorities is turned over to the federal authorities on a silver platter. The decisive factor * * * is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it."[72] Samples of illicit goods constituting part of a quantity seized by federal officials under a valid search warrant may be used as evidence, whether or not the officers become civilly liable as trespassers _ab initio_, by reason of the fact that they unlawfully destroyed the remainder of the goods at the time the seizure was made.[73] In Silver Thorne Lumber Co. _v._. United States,[74] the Court refused to permit the Government to subpoena corporate records of which it had obtained knowledge by an unlawful search. To permit "knowledge gained by the Government's own wrong" to be so used would do violence to the Bill of Rights.[75] But a defendant in a civil antitrust suit may be required to produce records which had been previously subpoenaed before a grand jury, despite the fact that the grand jury was illegally constituted because women were excluded from the panel.[76] Where government agents lawfully obtained knowledge of the contents of a cancelled check during examination of the records of a government contractor, the admission of such check in evidence was held not to be an abuse of discretion even if the seizure of the check itself was deemed illegal.[77] The seizure of papers under a writ of replevin issued in a civil suit between private persons does not violate the Fourth and Fifth Amendments.[78] Notes [1] Carroll _v._ United States, 267 U.S. 132, 147, 149 (1925). [2] Burdeau _v._ McDowell, 256 U.S. 465, 475 (1921). [3] Den ex dem. Murray _v._ Hoboken Land & Improv. Co., 18 How. 272, 285 (1856). [4] Nathanson _v._ United States, 290 U.S. 41, 47 (1933) [5] Gouled _v._ United States, 255 U.S. 298 (1921). [6] Taylor _v._ United States, 286 U.S. 1 (1932). [7] Carroll _v._ United States, 267 U.S. 132 (1925). [8] Hester _v._ United States, 265 U.S. 57 (1924). [9] Ex parte Jackson, 96 U.S. 727, 733 (1878). [10] Boyd _v._ United States, 116 U.S. 616 (1886); Hale _v._ Henkel, 201 U.S. 43 (1906). [11] Stroud _v._ United States, 251 U.S. 15, 21 (1919). [12] Amos _v._ United States, 255 U.S. 313 (1921); Johnson _v._ United States, 333 U.S. 10 (1948). [13] Davis _v._ United States, 328 U.S. 582 (1946). [14] Olmstead _v._ United States, 277 U.S. 438 (1928). _Cf._ Nardone _v._ United States, 302 U.S. 379 (1937); 308 U.S. 338 (1939). [15] Goldman _v._ United States, 316 U.S. 129 (1942). [16] Bilokumsky _v._ Tod, 203 U.S. 149, 155 (1923). [17] On Lee _v._ United States, 343 U.S. 747 (1952). [18] Ibid. 753. Four Justices dissented, relying in the main on the dissent in the Olmstead case, which came later to be adopted by Congress. _See_ note 10 above. [Transcriber's Note: Reference is to Footnote 14, above.] [19] United States _v._ Jeffers, 342 U.S. 48 (1951). [20] Ex parte Burford, 3 Cr. 448 (1806). [21] Albrecht _v._ United States, 273 U.S. 1 (1927). [22] McGrain _v._ Daugherty, 273 U.S. 135, 156, 158 (1927). [23] Agnello _v._ United States, 269 U.S. 20 (1925). [24] Byars _v._ United States, 273 U.S. 28, 29 (1927). [25] Steele _v._ United States, No. 1, 267 U.S. 498, 504, 505 (1925); Dumbra _v._ United States, 268 U.S. 435, 441 (1925). [26] Marron _v._ United States, 275 U.S. 192, 196 (1927). [27] Gouled _v._ United States, 255 U.S. 298 (1921). [28] 116 U.S. 616 (1886). [29] Ibid. 630. [30] Ibid. 634, 635. [31] Ibid. 633. [32] Ibid. 635. [33] Hale _v._ Henkel, 201 U.S. 43, 74 (1906); Essgee Co. _v._ United States, 262 U.S. 151 (1923). _Cf._ Interstate Commerce Commission _v._ Baird, 194 U.S. 25, 46 (1904). [34] Wilson _v._ United States, 221 U.S. 361 (1911). _See also_ Wheeler _v._ United States, 226 U.S. 478 (1913); Grant _v._ United States, 227 U.S. 74 (1913). [35] United States _v._ White, 322 U.S. 694 (1944). [36] Re Fuller, 262 U.S. 91 (1923). _See also_ McCarthy _v._ Arndstein, 266 U.S. 34, 41 (1924). [37] Perlman _v._ United States, 247 U.S. 7 (1918). [38] Hale _v._ Henkel, 201 U.S. 43, 76 (1906). [39] Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186, 208 (1946). [40] Federal Trade Commission _v._ American Tobacco Co. 264 U.S. 298, 305-306 (1924). [41] 327 U.S. 186 (1946). [42] Ibid. 208-209. [43] United States _v._ Darby, 312 U.S. 100, 125 (1941). [44] Shapiro _v._ United States, 335 U.S. 1, 32 (1918). [45] Flint _v._ Stone Tracy Co., 220 U.S. 107, 175 (1911). [46] Baltimore & O.R. Co. _v._ Interstate Commerce Comm'n., 21 U.S. 612 (1911). [47] United States _v._ Bausch & L. Optical Co., 321 U.S. 707, 725 (1944). _Cf._ United States _v._ Morton Salt Co., 338 U.S. 632 (1950). [48] Shapiro _v._ United States, 335 U.S. 1, 32 (1948); Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186, 208 (1946). [49] Weeks _v._ United States, 232 U.S. 383, 392 (1914). [50] 269 U.S. 20 (1925). [51] Ibid. 30. [52] Marron _v._ United States, 275 U.S. 192 (1927). [53] Go-Bart Importing Co. _v._ United States, 282 U.S. 344 (1931); United States _v._ Lefkowitz, 285 U.S. 452 (1932). [54] Byars _v._ United States, 273 U.S. 28 (1927); Johnson _v._ United States, 333 U.S. 10, 16 (1948). [55] 331 U.S. 145 (1947). [56] Ibid. 153, 155. [57] Ibid. 165. Separate dissenting opinions were written by Justices Murphy and Jackson. [58] 339 U.S. 56 (1950). [59] Ibid. 64. [60] 334 U.S. 699 (1948); McDonald _v._ United States, 335 U.S. 451 (1948) is also overruled in effect, although it was not mentioned in the Court's opinion. [61] Carroll _v._ United States, 267 U.S. 132, 153-156 (1925). Husty _v._ United States, 282 U.S. 694 (1931); Brinegar _v._ United States, 338 U.S. 160 (1949). [62] Scher _v._ United States, 305 U.S. 251 (1938). [63] United States _v._ Di Re, 332 U.S. 581 (1948). [64] Weeks _v._ United States, 232 U.S. 383 (1914). This case was a virtual repudiation of Adams _v._ New York, 192 U.S. 585, 597 (1904). There the Supreme Court had ruled that in criminal proceedings in a State court the use of private papers obtained by unlawful search and seizure "was no violation of the constitutional guaranty of privilege from unlawful search or seizure." It added: "Nor do we think the accused was compelled to incriminate himself." [65] Wolf _v._ Colorado, 338 U.S. 25, 29, 38 (1949); 8 Wigmore on Evidence (3d ed.) § 2184 (1940). [66] 338 U.S. 25 (1949). [67] Ibid. 33. [68] Burdeau _v._ McDowell, 256 U.S. 465 (1921). [69] Byars _v._ United States, 273 U.S. 28, 33 (1927). [70] Ibid. 32; Lustig _v._ United States, 338 U.S. 74 (1949). [71] Gambino _v._ United States, 275 U.S. 310 (1927). [72] Lustig _v._ United States, 338 U.S. 74, 78, 79 (1949). [73] McGuire _v._ United States, 273 U.S. 95 (1927). [74] 251 U.S. 385 (1920). [75] Ibid. 392. [76] United States _v._ Wallace & Tiernan Co., 336 U.S. 793 (1949). [77] Zap _v._ United States, 328 U.S. 624 (1946). [78] American Tobacco Co. _v._ Werckmeister, 207 U.S. 284, 302 (1907). AMENDMENT 5 RIGHTS OF PERSONS Page Rights of accused persons 837 The grand jury clause 837 Double jeopardy 838 Self-incrimination 841 Source of the clause 841 Due process of law 844 Source and evolution of the meaning of the term 844 Scope of the guaranty 846 Procedural due process 846 General 846 Criminal prosecutions 847 Notice and hearing 847 Evidence and presumption in judicial proceedings 848 Administrative proceedings 849 Fair hearing 849 Judicial review 850 Aliens 851 Deportation 852 Substantive due process 853 Discrimination 853 Deprivation of liberty 854 Deprivation of property 855 Retroactive legislation sustained 855 Retroactive legislation disallowed 857 Bankruptcy legislation 857 Right to sue the government 858 Congressional police measures 859 The postal service 859 Regulation of public utilities 860 Regulation of railroads 861 Taxation 862 Retroactive taxes 863 Governance of the Indians 864 The national eminent domain power 864 Scope of power 864 Alien property 865 Public use 865 Rights for which compensation must be made 866 When property is taken 867 Navigable waters 867 Just compensation 869 Interest 871 Enforcement of right to compensation 872 RIGHTS OF PERSONS Amendment 5 No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Rights of Accused Persons THE GRAND JURY CLAUSE Within the meaning of this article a crime is made "infamous" by the quality of the punishment which may be imposed.[1] The Court has recognized that: "What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another."[2] Imprisonment in a State prison or penitentiary, with or without hard labor,[3] or imprisonment at hard labor in the workhouse of the District of Columbia,[4] falls within this category. The pivotal question is whether the offense is one for which the Court is authorized to award such punishment; the sentence actually imposed is immaterial. When an accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.[5] Thus, an act which authorizes imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, creates an offense which can be tried only upon indictment.[6] Counterfeiting,[7] fraudulent alteration of poll books,[8] fraudulent voting,[9] and embezzlement[10] have been declared to be infamous crimes. It is immaterial how Congress has classified the offense.[11] An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of "petty offenses."[12] A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument. A change in the indictment deprives the court of the power to try the accused.[13] There is no constitutional requirement that an indictment be presented by a grand jury in a body; an indictment delivered by the foreman in the absence of the other grand jurors is valid.[14] The words "when in actual service in time of war or public danger" apply to the militia only. All persons in the regular army or navy are subject to court martial rather than indictment or trial by jury, at all times.[15] The exception of "cases arising in the land or naval forces" was not aimed at trials of offenses against the laws of war. Its objective was to authorize trial by court martial of the members of the Armed Forces for all that class of crimes which under the Fifth and Sixth Amendments might otherwise have been deemed triable in the civil court. Either citizen or alien enemy belligerents may be tried by a military commission for offenses against the laws of war.[16] DOUBLE JEOPARDY By the common law not only was a second punishment for the same offense prohibited, but a second trial was forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.[17] This clause embraces all cases wherein a second prosecution is attempted for the same violation of law, whether felony or misdemeanor.[18] Seventy-five years ago a closely divided Court held that the protection against double jeopardy prevented an appeal by the Government after a verdict of acquittal.[19] A judgment of acquittal on the ground of the bar of the statute of limitations is a protection against a second trial,[20] as is also a general verdict of acquittal upon an issue of not guilty to an indictment which was not challenged as insufficient before the verdict.[21] Where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized either punishment, but not both, it could not, after the fine had been paid, during the same term of court, change its judgment by sentencing the defendant to imprisonment.[22] But where a statute carried a minimum mandatory sentence of both a fine and imprisonment, the imposition of the minimum fine five hours after the court had erroneously sentenced the defendant to imprisonment only did not amount to double jeopardy.[23] Whether or not the discontinuance of a trial without a verdict bars a second trial depends upon the circumstances of each case.[24] Discharge of a jury because it is unable to reach an agreement[25] or because of the disqualification of a juror[26] does not preclude a second trial. Where, after a demurrer to the indictment was overruled, a jury was impaneled and witnesses sworn, the discharge of the jury to permit the defendant to be arraigned did not bar a trial before a new jury.[27] The withdrawal of charges after a trial by a general court martial had begun, because the tactical situation brought about by the rapid advance of the army made continuance of the trial impracticable, did not bar a trial before a second court martial.[28] An accused is not put in jeopardy by preliminary examination and discharged by the examining magistrate,[29] by an indictment which is quashed,[30] nor by arraignment and pleading to the indictment.[31] In order to bar prosecution, a former conviction must be pleaded.[32] A plea of former jeopardy must be upon a prosecution for the same identical offense.[33] The test of identity of offenses is whether the same evidence is required to sustain them; if not, the fact that both charges relate to one transaction does not make a single offense where two are defined by the statutes.[34] Where a person is convicted of a crime which includes several incidents, a second trial for one of those incidents puts him twice in jeopardy.[35] Congress may impose both criminal and civil sanctions with respect to the same act or omission,[36] and may separate a conspiracy to commit a substantive offense from the commission of the offense and affix to each a different penalty.[37] A conviction for the conspiracy may be had though the subsequent offense was not completed.[38] Separate convictions under different counts charging a monopolization and a conspiracy to monopolize trade, in an indictment under the Sherman Antitrust Act, do not amount to double jeopardy.[39] In United States _v._ National Association of Real Estate Boards,[40] the Court held that an acquittal in a criminal suit charging violation of the Sherman Act does not prevent the issuance of an injunction against future violations. It distinguished but did not overrule an early case which held that where an issue as to the existence of a fact or act had been tried in a criminal proceeding instituted by the United States, a judgment of acquittal, was conclusive in a subsequent proceeding _in rem_ involving the same matter.[41] A civil action to recover taxes which were in fact penalties for violation of another statute was held to be punitive in character and barred by a prior conviction of the defendant for a criminal offense involving the same transaction.[42] In contrast, the additional income tax imposed when a fraudulent return is filed, was found to be a civil sanction designed to protect the revenue, which might be assessed after acquittal of the defendant for the same fraud.[43] A forfeiture proceeding for defrauding the Government of a tax on alcohol diverted to beverage uses is a proceeding _in rem_, rather than a punishment for a criminal offense, and may be prosecuted after a conviction of conspiracy to violate the statute imposing the tax.[44] In an early case, the Court asserted that since robbery on the high seas is considered an offense within the criminal jurisdiction of all nations, the plea of _autre fois acquit_ would be good in any civilized State, though resting on a prosecution instituted in the courts of any other civilized State.[45] It has held, however, that where the same act is an offense against both the State and Federal Governments, its prosecution and punishment by both Governments is not double jeopardy.[46] A contumacious witness is not twice subjected to jeopardy for refusing to testify before a committee of the United States Senate, by being punished for contempt of the Senate and also indicted for a misdemeanor for such refusal.[47] Self-Incrimination SOURCE OF THE CLAUSE "Nor shall be compelled in any criminal case to be a witness against himself." The source of this clause was the maxim that "no man is bound to accuse himself (_nemo tenetur prodere_--or _accusare seipsum_)," which was brought forward in England late in the sixteenth century in protest against the inquisitorial methods of the ecclesiastical courts. At that time the common law itself permitted accused defendants to be questioned. What the advocates of the maxim meant was merely that a person ought not to be put on trial and compelled to answer questions to his detriment unless he had first been properly accused, i.e., by the grand jury. But the idea once set going gained headway rapidly, especially after 1660, when it came to have attached to it most of its present-day corollaries.[48] Under the clause a _witness_ in any proceeding whatsoever in which testimony is legally required may refuse to answer any question, his answer to which might be used against him in a future criminal proceeding, or which might uncover further evidence against him.[49] The witness must explicitly claim his constitutional immunity or he will be considered to have waived it;[50] but he is not the final judge of the validity of his claim.[51] The privilege exists solely for the protection of the witness himself, and may not be claimed for the benefit of third parties.[52] The clause does not impair the obligation of a witness to testify if a prosecution against him is barred by lapse of time, by statutory enactment, or by a pardon;[53] but the effect of a mere tender of pardon by the President remains uncertain.[54] A witness may not refuse to answer questions on the ground that he would thereby expose himself to prosecution by a state.[55] Conversely, the admission against a defendant in a federal court of testimony given by him in a state court under a statute of immunity is valid.[56] If an accused takes the stand in his own behalf, he must submit to cross-examination;[57] while if he does not, it is by no means certain that the trial judge in a federal court may not, without violation of the clause, draw the jury's attention to the fact.[58] Neither does the Amendment preclude the admission in evidence against an accused of a confession made while in the custody of officers, if the confession was made freely, voluntarily, and without compulsion or inducement of any sort.[59] But in McNabb _v._ United States the Court[60] reversed a conviction in a federal court, based on a confession obtained by questioning the defendants for prolonged periods in the absence of friends and counsel and without their being brought before a commissioner or judicial officer, as required by law. Without purporting to decide the constitutional issue, Justice Frankfurter's opinion urged the duty of the Court, in supervising the conduct of the lower federal courts, to establish and maintain "civilized standards of procedure and evidence."[61] An individual who has acquired income by illicit means is not excused from making out an income tax return because he might thereby expose himself to a criminal prosecution by the United States. "He could not draw a conjurer's circle around the whole matter," said Justice Holmes, "by his own declaration that to write any word upon the government blank would bring him into danger of the law."[62] But a witness called to testify before a federal grand jury as to his relations with the Communist Party cannot, in view of existing legislation touching the subject, be compelled to answer.[63]he clause does not require the exclusion of the body of an accused as evidence of his identity;[64] but the introduction into evidence against one who was being prosecuted by a State for illegal possession of morphine of two capsules which he had swallowed and had then been forced by the police to disgorge, was held to violate due process of law.[65] A bankrupt is not deprived of his constitutional right not to testify against himself by an order requiring him to surrender his books to a duly authorized receiver.[66] He may not object to the use of his books and papers as incriminating evidence against him while they are in the custody of the bankruptcy court;[67] nor may he condition their delivery by requiring a guaranty that they will not be used as incriminating evidence.[68] The filing of schedules by a bankrupt does not waive his right to refuse to answer questions pertaining to them when to do so may incriminate him.[69] A disclosure, not amounting to an actual admission of guilt or of incriminating facts, does not deprive him of the privilege of stopping short in his testimony whenever it may fairly tend to incriminate him.[70] The rule against self-incrimination may be invoked by a bankrupt (in the absence of any statute affording him complete immunity) when being examined concerning his estate.[71] The privilege of witnesses, being a purely personal one, may not be claimed by an agent or officer of a corporation either in its behalf or in his own behalf as regards books and papers of the corporation;[72] and the same rule holds in the case of the custodian of the records of a labor union;[73] nor does the Communist Party enjoy any immunity as to its books and records.[74] Finally, this Amendment, in connection with the interdiction of the Fourth Amendment against unreasonable searches and seizures, protects an individual from the compulsory production of private papers which would incriminate him.[75] The scope of this latter privilege was, however, greatly narrowed by the decision in Shapiro _v._ United States.[76] There, by a five-to-four majority, the Court held that the privilege against self incrimination does not extend to books and records which an individual is required to keep to evidence his compliance with lawful regulations. A conviction for violation of OPA regulations was affirmed, as against the contention that the prosecution was barred because the accused had been compelled over claim of constitutional immunity to produce records he was required to keep under applicable OPA orders. After construing the statutory immunity as inapplicable to the case, Chief Justice Vinson disposed of the constitutional objections by asserting that "the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.'"[77] Due Process of Law SOURCE AND EVOLUTION OF THE MEANING OF THE TERM The phrase "due process of law" comes from chapter 3 of 28 Edw. III (1355), which reads: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." This statute, in turn, harks back to the famous chapter 29 of Magna Carta (issue of 1225), where the King promises that "no free man (_nullus liber homo_) shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land (_per legem terrae_)." Coke in Part II of his Institutes, which was the source from which the founders of the American Constitutional System derived their understanding of the matter, equates the term "by law of the land" with "by due process of law," which he in turn defines as "by due process of the common law," that is "by the indictment or presentment of good and lawful men * * * or by writ original of the Common Law."[78] The significance of both terms was therefore purely procedural; the term "writ original of the common law" referring to the writs on which civil actions were brought into the King's courts; and this is the significance they clearly have in the State constitutions. In the earlier of such instruments the term "law of the land" was the form preferred, but following the adoption of Amendment V "due process of law" became the vogue with constitution draftsmen. Some State constitutions even today employ both terms. Whichever phraseology is used always occurs in close association with other safeguards of accused persons, just as does the clause here under discussion in Amendment V. As a limitation, therefore, on legislative power the due process clause originally operated simply to place certain procedures, and especially the grand jury-petit jury process, beyond its reach, but this did not remain its sole importance or its principal importance.[79] Today the due process clause in Amendment V, in Amendment XIV, and in the State constitutions is important chiefly, not as consecrating certain procedures, but as limiting the substantive content of legislation. Thus one of the grounds on which Chief Justice Taney, in his opinion in the Dred Scott Case, stigmatized the Missouri Compromise as unconstitutional was that an act of Congress which deprived "a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law";[80] and sixty-six years later the Court held the District of Columbia Minimum Wage Act for women and minors to be void under the due process clause of Amendment V, not on account of any objection to the methods by which it was to be enforced but because of the content of the act--its substantive requirements.[81] And it is because of this extension of the term "due process of law" beyond the procedural field that the Court has been asked to pass upon literally hundreds of State enactments since about 1890 on the representation that they invaded the "liberty" or property rights of certain persons "unreasonably." In short, this development of the meaning of "due process of law" came in time to furnish one of the principal bases of judicial review, and indeed it still remains such so far as State legislation is concerned. _See_ pp. 971-974. SCOPE OF GUARANTY This clause is a restraint on Congress as well as on the executive and judicial powers of the National Government; it cannot be so construed as to leave Congress free to make any process it chooses "due process of law."[82] All persons within the territory of the United States are entitled to its protection, including corporations,[83] aliens,[84] and presumptively citizens seeking readmission to the United States.[85] It is effective in the District of Columbia[86] and in territories which are part of the United States,[87] but it does not apply of its own force to unincorporated territories.[88] Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.[89] Procedural Due Process GENERAL The words "due process of law" do not necessarily imply a proceeding in a court of justice,[90] or a plenary suit and trial by jury in every case where personal or property rights are involved. "In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts."[91] Proceedings for contempt of court[92] or to disbar an attorney[93] may be determined by a court without a jury trial. For persons in the military or naval services of the United States,[94] trial by military tribunals is due process. This principle extends to persons who commit offenses while undergoing punishment inflicted by court martial; as military prisoners they are still subject to military law.[95] CRIMINAL PROSECUTIONS The due process clause supplements the specific procedural guaranties enumerated in the Sixth Amendment and in preceding clauses of the Fifth Amendment for the protection of persons accused of crime. The Court has relied upon this provision in holding that an accused shall plead, or be ordered to plead, or a plea of not guilty be entered for him before his trial proceeds;[96] and in ruling that if the accused is in custody he must be personally present at every stage of the trial where his substantial rights may be affected by the proceedings against him.[97] It is not within the power of the accused or his attorney to waive such right. Inasmuch as proceedings for criminal contempt do not constitute a criminal prosecution, it is immaterial if proceedings are held in the absence of the defendant; the requirement of due process of law is satisfied by suitable notice and opportunity to be heard.[98] NOTICE AND HEARING Due process of law signifies a right to be heard. A decree _pro confesso_ entered against a defendant after striking his answer from the files for contempt of court is void.[99] A man may, however, consent to be bound by a judgment in a case in which he has no right to participate.[100] Accordingly, due process of law was held not to be denied to a surety on an undertaking for the release of attached property when the undertaking required the parties to submit to the jurisdiction of the court and to agree to abide by the judgment in relation to the property attached.[101] Where, in a suit for specific performance of a contract, evidence admitted without objection at the trial established all the facts necessary for application of the formula specified by the contract, the appellate court which rejected the trial court's interpretation of the contract did not infringe the right to a hearing by entering judgment without remanding the case for a new trial.[102] After a State court, in proceedings designed _inter alia_ to invalidate certain releases, rendered judgment without a special finding on the exact point, a federal court did not deny due process in a subsequent proceeding by treating such judgment as conclusive on the validity of the releases.[103] Since proceedings in bankruptcy are in the nature of proceedings _in rem_, personal notice to creditors is not required; creditors are bound by the proceedings in distribution on notice by publication and mail.[104] Where a statute providing for a public improvement levied an assessment against abutting property it was held to be "conclusive alike of the question of the necessity of the work and of the benefits as against abutting property."[105] Notice to the property owner is not necessary to sustain the assessment. On the other hand, when the legislature submits these questions to a commission or other officers the inquiry becomes judicial and the property owner is entitled to notice or an opportunity to be heard. Notice by publication is sufficient.[106] EVIDENCE AND PRESUMPTION IN JUDICIAL PROCEEDINGS Error in the admission of evidence or the entry of an erroneous judgment after a full hearing does not constitute a denial of due process.[107] A statute authorizing cancellation of naturalization certificates for fraud and providing that the taking up of permanent residence abroad within five years after naturalization shall be _prima facie_ evidence of lack of intention to become a permanent resident of the United States at the time of applying for citizenship was found not to be so unreasonable as to deny due process of law.[108] Likewise, it was held reasonable for Congress to enact that a defendant who was discovered to be in possession of opium should be required to assume the burden of proving that he had not obtained it through illegal importation.[109] But a presumption that a firearm or ammunition in the possession of a person convicted of a crime of violence was transported or received in violation of law was held invalid because there was no rational connections between the facts proved and that presumed.[110] ADMINISTRATIVE PROCEEDINGS With respect to action taken by administrative agencies the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding so long as a hearing is held before the final order becomes effective.[111] In Bowles _v._ Willingham,[112] it sustained orders fixing maximum rents issued without a hearing at any stage, saying "* * * where Congress has provided for judicial review after the regulations or orders have been made effective it has all that due process under the war emergency requires."[113] But where, after consideration of charges brought against an employer by a complaining union, the National Labor Relations Board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the proceedings.[114] Although a taxpayer must be afforded a fair opportunity for hearing in connection with the collection of taxes,[115] collection by distraint of personal property is lawful if the taxpayer is allowed a hearing thereafter.[116] "A FAIR HEARING" When the Constitution requires a hearing it requires a fair one, held before a tribunal which at least meets currently prevailing standards of impartiality.[117] An opportunity must be given not only to present evidence, but also to know the claims of the opposing party and to meet them. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon the proposal before the final command is issued.[118] But a variance between the charges and findings will not invalidate administrative proceedings where the record shows that at no time during the hearing was there any misunderstanding as to the basis of the complaint.[119] The mere admission of evidence which would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.[120] A provision that such a body shall not be controlled by rules of evidence does not, however, justify orders without a foundation in evidence having rational probative force. Mere uncorroborated hearsay does not constitute the substantial evidence requisite to support the findings of the agency.[121] While the Court has recognized that in some circumstances a "fair hearing" implies a right to oral argument,[122] it refuses to lay down a general rule that would cover all cases.[123] It says: "Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised. Equally certainly it has left wide discretion to Congress in creating the procedures to be followed in both administrative and judicial proceedings, as well as in their conjunction."[124] JUDICIAL REVIEW To the extent that constitutional rights are involved, due process of law imports a judicial review of the action of administrative or executive officers. This proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should and will go in reviewing determinations of fact has been a highly controversial issue. In St. Joseph Stock Yards Co. _v._ United States,[125] the Supreme Court held that upon review of an order of the Secretary of Agriculture establishing maximum rates for services rendered by a stock yard company, due process required that the Court exercise its independent judgment upon the facts to determine whether the rates were confiscatory.[126] Subsequent cases sustaining rate orders of the Federal Power Commission have not dealt explicitly with this point.[127] The Court has said simply that a person assailing such an order "carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."[128] There has been a division of opinion in the Supreme Court as to what extent, if at all, the proceedings before military tribunals should be reviewed by the courts for the purpose of determining compliance with the due process clause. In In re Yamashita[129] the majority denied a petition for certiorari and petitions for writs of _habeas corpus_ to review the conviction of a Japanese war criminal by a military commission sitting in the Philippine Islands. It held that since the military commission, in admitting evidence to which objection was made, had not violated any act of Congress, a treaty or a military command defining its authority, its ruling on evidence and on the mode of conducting the proceedings were not reviewable by the courts. Without dissent, the Supreme Court in Hiatt _v._ Brown[130] reversed the judgment of a lower court which had discharged a prisoner serving a sentence imposed by a court-martial, because of errors whereby the respondent had been deprived of due process of law. The Supreme Court held that the Court below had erred in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate's report, the sufficiency of the evidence to sustain respondent's conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel. In summary, Justice Clark wrote: "In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision."[131] Again in Johnson _v._ Eisentrager[132] the Supreme Court overruled a lower court decision, which, in reliance upon the dissenting opinion in the Yamashita Case, had held that the due process clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of _habeas corpus_. ALIENS To aliens who have never been naturalized or acquired any domicile or residence in the United States, the decision of an executive or administrative officer, acting within powers expressly conferred by Congress, as to whether or not they shall be permitted to enter the country, is due process of law.[133] The complete authority of Congress in the matter of admission of aliens justifies delegation of power to executive officers to enforce the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the country, a money penalty, collectible before and as a condition of the grant of clearance.[134] If the person seeking admission claims American citizenship, the decision of the Secretary of Labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. A decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing.[135] Where the statute made the decision of an immigration inspector final unless an appeal was taken to the Secretary of the Treasury, a person who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on _habeas corpus_.[136] DEPORTATION Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights. The authority to deport is drawn from the power of Congress to regulate the entrance of aliens and impose conditions upon the performance of which their continued liberty to reside within the United States may be made to depend. Findings of fact reached by executive officers after a fair, though summary deportation hearing may be made conclusive.[137] In Wong Yang Sung _v._ McGrath,[138] however, the Court intimated that a hearing before a tribunal which did not meet the standards of impartiality embodied in the Administrative Procedure Act[139] might not satisfy the requirements of due process of law. To avoid such constitutional doubts, the Court construed the law to disqualify immigration inspectors as presiding officers in deportation proceedings. Except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on _habeas corpus_.[140] In contrast with the decision in United States _v._ Ju Toy[141] that a person seeking entrance to the United States was not entitled to a judicial hearing on his claim of citizenship, a person arrested and held for deportation is entitled to a day in court if he denies that he is an alien.[142] A closely divided Court has ruled that in time of war the deportation of an enemy alien may be ordered summarily by executive action; due process of law does not require the courts to determine the sufficiency of any hearing which is gratuitously afforded to the alien.[143] Substantive Due Process DISCRIMINATION Almost all legislation involves some degree of classification whereby its operation is directed to particular categories of persons, things, or events; and it is partly in recognition of this fact that Amendment Fourteen forbids the States to deny to persons within their jurisdiction "equal protection of the laws." But this restriction does not rule out classifications that are "reasonable"; and the due process of law clause of Amendment Five is at least as tolerant of legislative classifications, which would have to be arbitrarily and unreasonably discriminatory to incur its condemnation.[144] In fact, it does not appear that the Court has up to this time ever held an act of Congress unconstitutional on this ground. Thus it has sustained a law imposing greater punishment for an offense involving rights and property of the United States than for a like offense involving the rights of property of a private person.[145] Likewise, a requirement that improved property in the District of Columbia be connected with the city sewage system, with different sanctions for residents and nonresidents was upheld over the argument that the classification was arbitrary.[146] The allowance to injured seamen of a choice between several measures of redress without any corresponding right in their employer was held not to deny due process of law.[147] Differences of treatment accorded marketing cooperatives in milk marketing orders issued by the Secretary of Agriculture[148] and the selection of a limited number of tobacco markets for compulsory grading of tobacco[149] have also been sustained. The priority of a federal tax lien against property passing at death, may, without offending the due process clause, be different from that which attaches to property transferred _inter vivos_ in contemplation of death.[150] There are indications, however, that the Court may be prepared to go further than it has in the past in condemning discrimination as a denial of due process of law. Relying upon public policy and its supervisory authority over federal courts, it has reached results similar to those arrived at under the equal protection clause of the Fourteenth Amendment, in refusing to enforce restrictive covenants in the District of Columbia,[151] and in reversing a judgment of a Federal District Court because of the exclusion of day laborers from the jury panel;[152] and in Steele _v._ Louisville & N.R. Co.[153] the Railway Labor Act was construed to require a collective bargaining representative to act for the benefit of all members of the craft without discrimination on account of race. Chief Justice Stone indicated that any other construction would raise grave constitutional doubts,[154] while in a concurring opinion, Justice Murphy asserted unequivocally that the act would be inconsistent with the Fifth Amendment if the bargaining agent, acting under color of federal authority, were permitted to discriminate against any of the persons he was authorized to represent.[155] DEPRIVATION OF LIBERTY In consequence of the explicit assurances of individual liberty contained in other articles of the Bill of Rights, the clause in the Fifth Amendment forbidding the deprivation of "liberty" without due process of law has been invoked chiefly in resistance to measures alleged to abridge liberty of contract. The two leading cases which held legislation unconstitutional on this ground have, however, both been overturned in recent years. Adair _v._ United States,[156] which invalidated an act of Congress prohibiting any interstate carrier from threatening an employee with loss of employment if he joined a labor union, was overruled in substance by Phelps Dodge Corp. _v._ National Labor Relations Board.[157] Adkins _v._ Children's Hospital,[158] in which a minimum wage law for the District of Columbia was found to be an unwarranted abridgment of the liberty of contract, was expressly repudiated by West Coast Hotel Co. _v._ Parrish.[159] Numerous other statutes--antitrust laws,[160] acts limiting hours of labor,[161] prohibiting advance of wages to seamen,[162] making carriers liable for injuries suffered by employees irrespective of previous contractual arrangements,[163] requiring employers to bargain collectively with employees[164] and fixing prices of commodities[165] have been sustained against attack on this ground. Interpreting statutes which made the guaranty of due process of law applicable to Hawaii and the Philippine Islands, the Court enjoined enforcement of an act of the Territory of Hawaii which prohibited maintenance of foreign-language schools except upon written permit and payment of a fee based upon attendance,[166] and held unconstitutional a Philippine statute which prohibited Chinese merchants from keeping any accounts in Chinese.[167] DEPRIVATION OF PROPERTY Retroactive Legislation Sustained Federal regulation of future action, based upon rights previously acquired by the person regulated, is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Accordingly, rent regulations were sustained as applied to prevent execution of a judgment of eviction rendered by a State court before the enabling legislation was passed.[168] An order by an Area Rent Director reducing an unapproved rental and requiring the landlord to refund the excess previously collected, was held, with one dissenting vote, not to be the type of retroactivity which is condemned by law.[169] The retroactive effect of a new principle announced by a decision of an administrative tribunal has been likened to the effect of judicial decisions in cases of first impression. In Securities Comm'n. _v._ Chenery Corp.,[170] the Supreme Court sustained a decision of the Commission which refused to approve a plan of reorganization for a public utility holding company so long as the preferred stock purchased by the management was treated on a parity with other preferred stock even though the purchase of such stock, when made, did not conflict with any law or rule of the Commission. In the exercise of its comprehensive powers over revenue, finance and currency, Congress may make Treasury notes legal tender in payment of debts previously contracted[171] and may invalidate provisions in private contracts calling for payment in gold coin.[172] An award of additional compensation under the Longshoremen's and Harbor Workers' Compensation Act,[173] made pursuant to a private act of Congress passed after expiration of the period for review of the original award, directing the Commission to review the case and issue a new order, was held valid against the employer and insurer.[174] The application of a statute providing for tobacco marketing quotas, to a crop planted prior to its enactment, was held not to deprive the producers of property without due process of law since it operated, not upon production, but upon the marketing of the product after the act was passed.[175] The validation by statute of a prior mortgage of personal property invalid because improperly recorded, did not deny due process of law to a judgment creditor seeking to levy an attachment on the mortgaged property.[176] Nor was property taken without due process of law by a statute of New Mexico territory, permitting disseisin of real property to ripen into title after ten years.[177] An order of the military governor of Porto Rico reducing the period during which the possession of real estate must continue, to permit an _ex parte_ conversion of an entry of possessory title into record ownership was construed to apply only where there still remained a reasonable opportunity for the true owners to contest the claim. The Court said that any other construction would permit a taking of property without due process of law.[178] Rights created by statute are subject to qualification by Congress; benefits conferred gratuitously may be redistributed or withdrawn at any time.[179] Where Congress provided, in granting lands to a railroad, that such land could be resold only to actual settlers, at a price not exceeding $2.50 per acre, it could constitutionally, for breach of performance, resume title to the lands while assuring the railroad the equivalent of its interest.[180] An act making an appropriation for a private claim which restricted the attorney's fees payable therefrom to twenty per cent was valid although inconsistent with a prior contract with the claimant allowing a larger fee.[181] Statutory restrictions on compensation for services in connection with veterans' pensions or insurance have been upheld.[182] An increase in the penalty for production of wheat in excess of quota was not invalid as applied retroactively to wheat already planted, where Congress concurrently authorized a substantial increase in the amount of the loan which might be made to cooperating farmers upon stored "farm marketing excess wheat."[183] Retroactive Legislation Disallowed The due process clause has been successfully invoked to defeat retroactive invasion or destruction of property rights in a few cases. A revocation by the Secretary of the Interior of previous approval of plats and papers showing that a railroad was entitled to land under a grant was held void as an attempt to deprive the company of its property without due process of law.[184] The exception of the period of federal control from the time limit set by law upon claims against carriers for damages caused by misrouting of goods, was read as prospective only because the limitation was an integral part of the liability, not merely a matter of remedy, and would violate the Fifth Amendment if retroactive.[185] Rights against the United States arising out of contract are protected by the Fifth Amendment; hence a statute abrogating contracts of war risk insurance was held unconstitutional as applied to outstanding policies.[186] Bankruptcy Legislation The bankruptcy power of Congress is subject to the Fifth Amendment. A statute which authorized a court to stay proceedings for the foreclosure of a mortgage for five years, the debtor to remain in possession at a reasonable rental, with the option of purchasing the property at its appraised value at the end of the stay, was held unconstitutional because it deprived the creditor of substantial property rights acquired prior to the passage of the act.[187] A modified law, under which the stay was subject to termination by the Court, and which continued the right of the creditor to have the property sold to pay the debt was sustained.[188] Without violation of the due process clause, the sale of collateral under the terms of a contract may be enjoined, if such sale would hinder the preparation or consummation of a proposed railroad reorganization, provided the injunction does no more than delay the enforcement of the contract.[189] A provision that claims resulting from rejection of an unexpired lease should be treated as on a parity with provable debts, but limited to an amount equal to three years rent, was held not to amount to a taking of property without due process of law, since it provided a new and more certain remedy for a limited amount, in lieu of an existing remedy inefficient and uncertain in result.[190] A right of redemption allowed by State law upon foreclosure of a mortgage was unavailing to defeat a plan for reorganization of a debt or corporation where the trial court found that the claims of junior lienholders had no value.[191] Right To Sue the Government A right to sue the Government on a contract is a privilege, not a property right protected by the Constitution.[192] The right to sue for recovery of taxes paid may be conditioned upon an appeal to the Commissioner and his refusal to refund.[193] There was no denial of due process when Congress took away the right to sue for recovery of taxes, where the claim for recovery was without substantial equity, having arisen from the mistake of administrative officials in allowing the statute of limitations to run before collecting the tax.[194] The denial to taxpayers of the right to sue for refund of processing and floor taxes collected under a law subsequently held unconstitutional, and the substitution of a new administrative procedure for the recovery of such sums, was held valid.[195] Congress may cut off the right to recover taxes illegally collected by ratifying the imposition and collection thereof, where it could lawfully have authorized such exactions prior to their collection.[196] CONGRESSIONAL POLICE MEASURES Numerous regulations of a police nature, imposed under powers specifically granted to the Federal Government, have been sustained over objections based on the due process clause. Congress may require the owner of a vessel on which alien seamen suffering from specified diseases are brought into the country to bear the expense of caring for such persons.[197] It may prohibit the transportation in interstate commerce of filled milk,[198] or the importation of convict made goods into any State where their receipt, possession or sale is a violation of local law.[199] It may require employers to bargain collectively with representatives of their employees chosen in a manner prescribed by statute, to reinstate employees discharged in violation of law,[200] and to permit use of a company owned hall for union meetings.[201] It may enforce continuance of the relationship of employer and employee in the event of a strike as a consequence of, or in connection with, a current labor dispute.[202] The fact that property subject to rent control in time of war suffers a decrease in value does not make such restriction offensive to the due process clause.[203] The Postal Service In its complete control over the postal service Congress may exclude lottery advertisements or any other matter objectionable on grounds of public policy.[204] An order requiring return to the senders of all letters addressed to a concern engaged in a fraudulent enterprise, or to its officers as such was held reasonable and valid because an order limited to matter obviously connected with the enterprise would be a practical nullity.[205] Such an order may be issued by the Postmaster General "upon evidence satisfactory to him,"[206] but if issued under a "mistake of law" as to what facts may properly be deemed to constitute fraud, it will be enjoined by the courts.[207] A hearing upon revocation of second-class mailing privileges by an assistant Postmaster General upon notice, at which relator was heard and evidence received was due process.[208] Congressional Regulation of Public Utilities Inasmuch as Congress, in giving federal agencies jurisdiction over various public utilities, usually has prescribed standards substantially identical with those by which the Supreme Court has tested the validity of State action, the review of their orders seldom has turned on constitutional issues. In two cases, however, maximum rates for stockyard companies prescribed by the Secretary of Agriculture were sustained only after detailed consideration of numerous items excluded from the rate base or from operating expenses, apparently on the assumption that error with respect to any such item would render the rates confiscatory and void.[209] A few years later, in Federal Power Commission _v._ Hope Natural Gas Co.,[210] the Court adopted an entirely different approach. It took the position that the validity of the Commission's order depended upon whether the impact or total effect of the order is just and reasonable, rather than upon the method of computing the rate base. Rates which enable a company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed cannot be condemned as unjust and unreasonable even though they might produce only a meager return in a rate base computed by the "present fair value" method.[211] Orders prescribing the form and contents of accounts kept by public utility companies,[212] and statutes requiring a private carrier to furnish information for valuing its property to the Interstate Commerce Commission[213] have been sustained against the objection that they were arbitrary and invalid. An order of the Secretary of Commerce directed to a single common carrier by water requiring it to file a summary of its books and records pertaining to its rates was held not to violate the Fifth Amendment.[214] Congressional Regulation of Railroads Legislation or administrative orders pertaining to railroads have been challenged repeatedly under the due process clause but seldom with success. Orders of the Interstate Commerce Commission establishing through routes and joint rates have been sustained,[215] as has its division of joint rates to give a weaker group of carriers a greater share of such rates where the proportion allotted to the stronger group was adequate to avoid confiscation.[216] The recapture of one half of the earnings of railroads in excess of a fair net operating income, such recaptured earnings to be available as a revolving fund for loans to weaker roads, was held valid on the ground that any carrier earning an excess held it as trustee.[217] An order enjoining certain steam railroads from discriminating against an electric railroad by denying it reciprocal switching privileges did not violate the Fifth Amendment even though its practical effect was to admit the electric road to a part of the business being adequately handled by the steam roads.[218] Similarly, the fact that a rule concerning the allotment of coal cars operated to restrict the use of private cars did not amount to a taking of property.[219] Railroad companies were not denied due process of law by a statute forbidding them to transport in interstate commerce commodities which have been manufactured, mined or produced by them.[220] An order approving a lease of one railroad by another, upon condition that displaced employees of the lessor should receive partial compensation for the loss suffered by reason of the lease[221] is consonant with due process of law. A law prohibiting the issuance of free passes was held constitutional even as applied to abolish rights created by a prior agreement whereby the carrier bound itself to issue such passes annually for life, in settlement of a claim for personal injuries.[222] Occasionally, however, regulatory action has been held invalid under the due process clause. An order issued by the Interstate Commerce Commission relieving short line railroads from the obligation to pay the usual fixed sum per day rental for cars used on foreign roads, for a space of two days was arbitrary and invalid.[223] A retirement act which made eligible for pensions all persons who had been in the service of any railroad within one year prior to the adoption of the law, counted past unconnected service of an employee toward the requirement for a pension without any contribution therefor, and treated all carriers as a single employer and pooled their assets, without regard to their individual obligations, was held unconstitutional.[224] TAXATION In laying taxes, the Federal Government is less narrowly restricted by the Fifth Amendment than are the States by the Fourteenth. It may tax property belonging to its citizens, even if such property is never situated within the jurisdiction of the United States,[225] or the income of a citizen resident abroad, which is derived from property located at his residence.[226] The difference is explained by the fact that the protection of the Federal Government follows the citizen wherever he goes, whereas the benefits of State government accrue only to persons and property within the State's borders. The Supreme Court has said that, in the absence of an equal protection clause, "a claim of unreasonable classification or inequality in the incidence or application of a tax raises no question under the Fifth Amendment, * * *"[227] It has sustained, over charges of unfair differentiation between persons, a graduated income tax;[228] a higher tax on oleomargarine than on butter;[229] an excise tax on "puts" but not on "calls";[230] a tax on the income of businesses operated by corporations but not on similar enterprises carried on by individuals;[231] an income tax on foreign corporations, based on their income from sources within the United States, while domestic corporations are taxed on income from all sources;[232] a tax on foreign-built but not upon domestic yachts;[233] a tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service;[234] a gift tax law embodying a plan of graduations and exemptions under which donors of the same amount might be liable for different sums;[235] an Alaska statute imposing license taxes only on nonresident fisherman;[236] an act which taxed the manufacture of oil and fertilizer from herring at a higher rate than similar processing of other fish or fish offal;[237] an excess profits tax which defined "invested capital" with reference to the original cost of the property rather than to its present value;[238] and an undistributed profits tax in the computation of which special credits were allowed to certain taxpayers;[239] an estate tax upon the estate of a deceased spouse in respect of the moiety of the surviving spouse where the effect of the dissolution of the community is to enhance the value of the survivor's moiety.[240] Retroactive Taxes A gift tax cannot be imposed on gifts consummated before the taxing statute was adopted.[241] A conclusive presumption that gifts made within two years of death were made in contemplation of death was condemned as arbitrary and capricious even with respect to subsequent transfers.[242] A tax may be made retroactive for a short period to include profits made while it was in process of enactment. A special income tax on profits realized by the sale of silver, retroactive for 35 days, which was approximately the period during which the silver purchase bill was before Congress, was held valid.[243] An income tax law, made retroactive to the beginning of the calendar year in which it was adopted, was found constitutional as applied to the gain from the sale, shortly before its enactment, of property received as a gift during the year.[244] Retroactive assessment of penalties for fraud or negligence,[245] or of an additional tax on the income of a corporation used to avoid a surtax on its shareholders,[246] does not deprive the taxpayer of property without due process of law. An additional excise tax imposed upon property still held for sale, after one excise tax had been paid by a previous owner, does not violate the due process clause.[247] A transfer tax measured in part by the value of property held jointly by a husband and wife, including that which comes to the joint tenancy as a gift from the decedent spouse, is valid,[248] as is the inclusion in the gross income of the settler of income accruing to a revocable trust during any period when he had power to revoke or modify it.[249] GOVERNANCE OF THE INDIANS The power of Congress in virtue of its wardship over Indians extends to a restriction on alienation of Indian lands even after a particular Indian has been granted citizenship.[250] But rights of tax exemption accruing to Indian allotments under an act of Congress, which have become vested, are protected by this amendment against repeal.[251] One who was duly enrolled as a member of the Chickasaw Nation acquired valuable rights which the Secretary of the Interior could not strike down without notice and hearing.[252] An act authorizing suit against allottees of Indian property as a class, for the value of services in securing the allotments, which provided for notice upon the governor of the tribe and designated the Attorney General to defend the suit, was consonant with due process.[253] Where the statute which created a tribal council for the Osage Indians, to be elected by the tribe, at the same time vested the Secretary of the Interior with discretion to remove a member without notice or hearing, there was no denial of due process of law since the right to elect was united in its creation with the right of removal.[254] A statute of the Choctaw Nation providing for the forfeiture and sale of buildings erected on their lands, was held to be unenforceable without giving the builder an opportunity to be heard.[255] The National Eminent Domain Power SCOPE OF POWER Being an incident of sovereignty, the right of eminent domain requires no constitutional recognition. The requirement of just compensation is merely a limitation upon the exercise of a preexisting power[256] to which all private property is subject.[257] This prerogative of the National Government can neither be enlarged nor diminished by a State.[258] Whenever lands in a State are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State.[259] The facts that land included in a federal reservoir project is owned by a State, or that its taking may impair the tax revenue of the State, that the reservoir will obliterate part of the State's boundary and interfere with the State's own project for water development and conservation, constitute no barrier to the condemnation of the land by the United States under its superior power of eminent domain.[260] ALIEN PROPERTY There is no constitutional prohibition against confiscation of enemy property.[261] Congress may authorize seizure and sequestration through executive channels of property believed to be enemy owned if adequate provision is made for return in case of mistake.[262] An alien friend is entitled to the protection of the Fifth Amendment against a taking of property for public use without just compensation.[263] The fact that property of our citizens may be confiscated in that alien's country does not subject the alien friend's property to confiscation here.[264] PUBLIC USE The extent to which private property shall be taken for public use rests wholly in the legislative discretion.[265] Whether the courts have power to review a determination of the lawmakers that a particular use is a public use was left in doubt by the decision in United States ex rel. T.V.A. _v._ Welch.[266] Speaking for the majority, Justice Black declared: "We think that it is the function of Congress to decide what type of taking is for a public use * * *"[267] In a concurring opinion in which Chief Justice Stone joined, Justice Reed took exception to that portion of the opinion, insisting that whether or not a taking is for a public purpose is a judicial question.[268] Justice Frankfurter interpreted the controlling opinion as recognizing the doctrine that "whether a taking is for a public purpose is not a question beyond judicial competence."[269] All agreed that the condemnation of property which had been isolated by the flooding of a highway, to avoid the expense of constructing a new highway, was a lawful public purpose. Previous cases have held that the preservation for memorial purposes of the line of battle at Gettysburg was a public use for which private property could be taken by condemnation;[270] that where establishment of a reservoir involved flooding part of a town, the United States might take nearby property for a new townsite and the fact that there might be some surplus lots to be sold did not deprive the transaction of its character as taking for public use.[271] RIGHTS FOR WHICH COMPENSATION MUST BE MADE The franchise of a private corporation is property which cannot be taken for public use without compensation. Upon condemnation of a lock and dam belonging to a navigation company, the Government was required to pay for the franchise to take tolls as well as for the tangible property.[272] Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property for which compensation must be made when the Government uses the patent.[273] The frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is required.[274] Where, however, the Government requisitioned from a power company all of the electric power which could be produced by use of the water diverted through its intake canal, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under State law, to draw a portion of that water, the latter was awarded compensation for the rights taken.[275] An order requiring the removal or alteration of a bridge over a navigable river, to abate the obstruction to navigation, is not a taking of property within the meaning of the Constitution.[276] The exclusion, from the amount to be paid to the owners of condemned property, of the value of improvements made by the Government under a lease, was held constitutional.[277] An undertaking to reduce the menace from flood damages which was inevitable but for the Government's work does not constitute the Government a taker of all lands not fully protected; the Government does not owe compensation under the Fifth Amendment to every landowner whom it fails to or cannot protect.[278] When Property is Taken According to the Legal Tender Cases,[279] the requirement of just compensation for property taken for public use refers only to direct appropriation and not to consequential injuries resulting from the exercise of lawful power. This formula leaves open the question as to whether injuries are "consequential" merely. Recent doctrine embodies a more definite test. In United States _v._ Dickinson,[280] the Supreme Court held that property is "taken" within the meaning of the Constitution "when inroads are made upon the owner's use of it to an extent that, as between private parties, a servitude has been acquired either by an agreement or in course of time."[281] Where the noise and glaring lights of planes landing at or leaving an airport leased to the United States, flying below the navigable air space as defined by Congress, interfere with the normal use of a neighboring farm as a chicken farm, there is such a taking as to give the owner a constitutional right to compensation.[282] That the Government had imposed a servitude on land adjoining its fort so as to constitute a taking within the law of eminent domain may be found from the facts that it had repeatedly fired the guns of the fort across the land and had established a fire control service there.[283] A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in the suit by an individual whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking of private property.[284] Navigable Waters Riparian ownership is subject to the power of Congress to regulate commerce. When damage results consequentially from an improvement of a navigable river, it is not a taking of property, but merely the exercise of a servitude to which the property is always subject.[285] What constitutes a navigable river within the purview of the commerce clause often involves sharply disputed issues of fact and of law. In the leading case of The Daniel Ball[286] the Court laid down the rule that: "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[287] In 1940, over the dissent of two Justices, the Court held that the phrase "natural and ordinary condition" refers to volume of water, the gradients and the regularity of the flow. It further held that in determining the navigable character of a river it is proper to consider "the feasibility of interstate use after reasonable improvements which might be made."[288] A few months later it decided unanimously that Congress may exercise the power of eminent domain in connection with the construction of a dam and reservoir on the nonnavigable stretches of a river in order to preserve or promote commerce on the navigable portions.[289] The Government does not have to compensate a riparian owner for cutting off his access to navigable waters by changing the course of the stream in order to improve navigation.[290] Where submerged land under navigable waters of a bay are planted with oysters, the action of the Government in dredging a channel across the bay in such a way as to destroy the oyster bed is not a "taking" of property in the constitutional sense.[291] The determination by Congress that the whole flow of a stream should be devoted to navigation does not take any private property rights of a water power company which holds a revocable permit to erect dams and dykes for the purpose of controlling the current and using the power for commercial purposes.[292] The interest of a riparian owner in keeping the level of a navigable stream low enough to maintain a power head for his use was not one for which he was entitled to be compensated when the Government raised the level by erecting a dam to improve navigation.[293] Inasmuch as a riparian owner has no private property in the flow of the stream, a license to maintain a hydroelectric dam, may, without offending the Fifth Amendment, contain a provision giving the United States an option to acquire the property at a value assumed to be less than its fair value at the time of taking.[294] Where the Government erects dams and other obstructions across a river, causing an overflow of water which renders the property affected unfit for agricultural use and deprives it of all value, there is taking of property for which the Government is under an implied contract to make just compensation.[295] The construction of locks and for "canalizing" a river, which cause recurrent overflows, impairing but not destroying the value of the land amounts to a partial taking of property within the meaning of the Fifth Amendment;--the fee remains in the owner, subject to an easement in the United States to overflow it as often as may necessarily result from the operation of the lock and dam for purposes of navigation.[296] Compensation has been awarded for the erosion of land by waters impounded by a Government dam,[297] and for the destruction of the agricultural value of land located on a nonnavigable tributary of the Mississippi River, which as a result of the continuous maintenance of the river's level at high water mark, was permanently invaded by the percolation of the waters, and its drainage obstructed.[298] When the construction of locks and dams raised the water in a nonnavigable creek to about one foot below the crest of an upper milldam, thus preventing the drop in the current necessary to run the mill, there was a taking of property in the constitutional sense.[299] A contrary conclusion was reached with respect to the destruction of property of the owner of a lake through the raising of the lake level as a consequence of an irrigation project, where the result to the lake owner's property could not have been foreseen.[300] JUST COMPENSATION If only a portion of a single tract is taken, the owner's compensation includes any element of value arising out of the relation of the part taken to the entire tract.[301] Thus, where the taking of a strip of land across a farm closed a private right of way, an allowance was properly made for value of the easement.[302] On the other hand, if the taking has in fact benefited the owner, the benefit may be set off against the value of the land condemned.[303] But there may not be taken into account any supposed benefit which the owner may receive in common with all from the public use to which the property is appropriated.[304] Where Congress condemned certain lands for park purposes, setting off resulting benefits against the value of property taken, and by subsequent act directed the erection of a fire-station house therein, it was held that property was not thereby taken without just compensation.[305] The Constitution does not require payment of consequential damages to other property of the owner consisting of separate tracts adjoining that affected by the taking.[306] Just compensation means the full and perfect equivalent, in money, of the property taken.[307] The owner's loss, not the taker's gain is the measure of such compensation.[308] Where the property has a determinable market value, that is the normal measure of recovery.[309] Market value is "what a willing buyer would pay in cash to a willing seller."[310] It may reflect not only the use to which the property is presently devoted but also that to which it may be readily converted.[311] But the value of the property to the Government for its particular use is not a criterion.[312] In two recent cases the Court held that the owners of cured pork[313] and black pepper[314] which was requisitioned by the Government during the war could recover only the O.P.A. ceiling price for those commodities, despite findings of the Court of Claims that the replacement cost of the meat exceeded its ceiling price, and that the pepper had a "retention value" in excess of that price. By a five-to-four decision it ruled that the Government was not obliged to pay the market value of a tug where such value had been enhanced as a consequence of the Government's urgent war time needs.[315] Consequential damages such as destruction of a business,[316] the expense of moving fixtures and personal property from the premises, or the loss of goodwill which inheres in the location of the land, are not recoverable when property is taken in fee.[317] But a different principle obtains where only a temporary occupancy is assumed. If a portion of a long term lease is taken, damage to fixtures is allowed in addition to the value of the occupancy, and the expenses of moving, storage charges, and the cost of preparing the space for occupancy by the Government are proper elements to be considered in determining the fair rental value of the premises for the period taken.[318] These elements are not taken into account in fixing compensation for condemnation of leaseholds for the remainder of their term.[319] In Kimball Laundry Co. _v._ United States,[320] the Court by a close division held that when the United States condemned a laundry plant for temporary occupancy, evidence should have been received concerning the diminution in the value of its business due to destruction of its trade routes, and compensation allowed for any demonstrable loss of going-concern value. In United States _v._ Pewee Coal Co.,[321] involving another temporary seizure by the government, a similarly divided Court sustained the Court of Claims in awarding the company compensation for losses attributable to increased wage payments by the government. Four Justices thought no such loss had been shown. Interest Ordinarily property is taken under a condemnation suit upon the payment of the money award by the condemner and no interest accrues.[322] If, however, the property is taken in fact before payment is made, just compensation includes an increment which, to avoid use of the term "interest," the Court has called "an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking."[323] If the owner and the Government enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the Fifth Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed.[324] Where property of a citizen has been mistakenly seized by the Government, converted into money and invested, the owner is entitled, in recovering compensation, to an allowance for the use of his property.[325] Enforcement of Right to Compensation When a taking of private property has been ordered, the question of just compensation is judicial.[326] The compensation to be paid may be ascertained by any appropriate tribunal capable of estimating the value of the property. Whether the tribunal shall be created directly by Congress or one already established by the State shall be adopted for the occasion, is a matter of legislative discretion.[327] The estimate of just compensation is not required to be made by a jury, but may be entrusted to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.[328] The federal courts may take jurisdiction of an action in ejectment by a citizen against officers of the Government, to recover property of which he has been deprived by force and which has been converted to the use of the Government without lawful authority and without just compensation.[329] Where property is taken by the United States in the exercise of the power of eminent domain, but without condemnation proceedings, the owner may, under the Tucker Act, bring suit for just compensation in the Court of Claims or in a district court sitting as a Court of Claims.[330] The Fifth Amendment does not require that compensation shall actually be paid in advance of the taking[331] but the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed.[332] In time of war or immediate public danger private property may be impressed into public service without the consent of the owner, but such taking raises an implied promise on the part of the United States to reimburse the owner.[333] An objection that an act of Congress providing for condemnation of land for a public purpose limited the aggregate amount to be expended was rejected, since the limitation did not affect the right of property holders in the event of condemnation.[334] Notes [1] Ex parte Wilson, 114 U.S. 417 (1885). [2] Ibid. 427. [3] Mackin _v._ United States, 117 U.S. 348, 352 (1886). [4] United States _v._ Moreland, 258 U.S. 433 (1922). [5] Ex parte Wilson, 114 U.S. 417, 426 (1885). [6] Wong Wing _v._ United States, 163 U.S. 228, 237 (1896). [7] Ex parte Wilson, 114 U.S. 417 (1885). [8] Mackin _v._ United States, 117 U.S. 348 (1886). [9] Parkinson _v._ United States, 121 U.S. 281 (1887). [10] United States _v._ DeWalt, 128 U.S. 393 (1888). [11] Ex parte Wilson, 114 U.S. 417, 426 (1885). [12] Duke _v._ United States, 301 U.S. 492 (1937). [13] Ex parte Bain, 121 U.S. 1, 12 (1887). [14] Breese _v._ United States, 226 U.S. 1 (1912). [15] Johnson _v._ Sayre, 158 U.S. 109, 114 (1895). [16] Ex parte Quirin, 317 U.S. 1, 43, 44 (1942). [17] Ex parte Lange, 18 Wall. 103, 169 (1874). [18] Ibid. 172, 173. [19] Kepner _v._ United States, 195 U.S. 100 (1904). This case arose under the act of Congress of July 1, 1902 (32 Stat. 631) for the temporary civil government of the Philippine Islands. To the same effect are United States _v._ Sanges, 144 U.S. 310, 323 (1892), and United States _v._ Evans, 213 U.S. 297 (1909), both cases arising within the United States. [20] United States _v._ Oppenheimer, 242 U.S. 85 (1916). [21] United States _v._ Ball, 161 U.S. 622, 669 (1896). [22] Ex parte Lange, 18 Wall. 163 (1874). [23] Bozza _v._ United States, 330 U.S. 160 (1947). [24] Wade _v._ Hunter, 336 U.S. 684, 689 (1949). [25] United States _v._ Perez, 9 Wheat. 579 (1824); Logan _v._ United States, 144 U.S. 263, 298 (1892). [26] Simmons _v._ United States, 142 U.S. 148 (1891); Thompson _v._ United States, 155 U.S. 271 (1894). [27] Lovato _v._ New Mexico, 242 U.S. 199 (1916). [28] Wade _v._ Hunter, 336 U.S. 684 (1949). [29] Collins _v._ Loisel, 262 U.S. 426 (1923). [30] Taylor _v._ United States, 207 U.S. 120, 127 (1907). [31] Bassing _v._ Cady, 208 U.S. 386, 391-392 (1908). [32] United States _v._ Wilson, 7 Pet. 150, 160 (1883). [33] Burton _v._ United States, 202 U.S. 344 (1906); United States _v._ Randenbush, 8 Pet. 288, 289 (1834). [34] Morgan _v._ Devine, 237 U.S. 632 (1915). _See also_ Carter _v._ McClaughry, 183 U.S. 365 (1902); Albrecht _v._ United States, 273 U.S. 1 (1927). [35] Ex parte Nielsen, 131 U.S. 176, 188 (1889). [36] Helvering _v._ Mitchell, 303 U.S. 391 (1938). [37] Pinkerton _v._ United States, 328 U.S. 640 (1946); United States _v._ Bayer, 331 U.S. 532 (1947). [38] Pinkerton _v._ United States, 328 U.S. 640 (1946). [39] American Tobacco Co. _v._ United States, 328 U.S. 781 (1946). [40] 339 U.S. 485 (1950). [41] Coffey _v._ United States, 116 U.S. 436 (1886). [42] United States _v._ La Franca, 282 U.S. 568 (1931). [43] Helvering _v._ Mitchell, 303 U.S. 391 (1938). [44] Waterloo Distilling Corp. _v._ United States, 282 U.S. 577 (1931). [45] United States _v._ Furlong, 5 Wheat. 184, 197 (1820). [46] United States _v._ Lanza, 260 U.S. 377 (1922); Jerome _v._ United States, 318 U.S. 101 (1943). [47] In re Chapman, 166 U.S. 661, 672 (1897). [48] See generally J.H. Wigmore, 4 Evidence in Trials at Common Law, § 2250 (2nd ed., 1923); also Edward S. Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Michigan Law Review, 1-27, 195-207 (1930). [49] McCarthy _v._ Arndstein, 266 U.S. 34, 40 (1924). _See also_ Boyd _v._ United States, 116 U.S. 616 (1886); Counselman _v._ Hitchcock, 142 U.S. 547 (1892); Brown _v._ Walker, 161 U.S. 591 (1896). [50] Rogers _v._ United States, 340 U.S. 367, 370 (1951); United States _v._ Monia, 317 U.S. 424, 427 (1943). [51] Hoffman _v._ United States, 341 U.S. 479, 486 (1951); Mason _v._ United States, 244 U.S. 362, 363 (1917). [52] Rogers _v._ United States, 340 U.S. 367, 371 (1951); United States _v._ Murdock, 284 U.S. 141, 148 (1931). [53] Brown _v._ Walker, 161 U.S. 591, 598-599 (1896). [54] _Cf._ Burdick _v._ United States, 236 U.S. 79 (1915); and Biddle _v._ Perovich, 274 U.S. 480 (1927). [55] United States _v._ Murdock, 284 U.S. 141, 149 (1931). [56] Feldman _v._ United States, 322 U.S. 487 (1944). [57] Brown _v._ Walker, 161 U.S. 591 (1896); Johnson _v._ United States, 318 U.S. 189 (1943). [58] _Cf._ Twining _v._ New Jersey, 211 U.S. 78 (1908). However, a defendant in a prosecution by the United States enjoys a statutory right to have the jury instructed that his failure to testify creates no presumption against him. 28 U.S.C. 632; Bruno _v._ U.S., 308 U.S. 287 (1939). _See also_ 318 U.S. at 196. [59] Pierce _v._ United States, 160 U.S. 355 (1896); Wilson _v._ United States, 162 U.S. 613 (1896); United States _v._ Mitchell, 322 U.S. 65 (1944). [60] 318 U.S. 332 (1943). [61] _Ibid._, 340. In Upshaw _v._ United States, 335 U.S. 410 (1948), a sharply divided Court found the McNabb case inapplicable to a case in which respondent, while under arrest for assault with intent to rape, was brought, by extended questioning, to confess having previously committed murder in an attempt to rape. [62] Sullivan _v._ United States, 274 U.S. 259, 263 264 (1927). [63] Blau _v._ United States, 340 U.S. 159 (1950). _See also_ Blau _v._ United States, 340 U.S. 332 (1951); Rogers _v._ United States, 340 U.S. 367 (1951); Dennis _v._ United States, 341 U.S. 494 (1951). [64] Holt _v._ United States, 218 U.S. 245 (1910). [65] Rochin _v._ California, 342 U.S. 165 (1952). [66] Re Harris, 221 U.S. 274, 279 (1911). [67] Dier _v._ Banton, 262 U.S. 147 (1923). [68] Re Fuller, 262 U.S. 91 (1923). [69] Arndstein _v._ McCarthy, 254 U.S. 71 (1920). [70] McCarthy _v._ Arndstein, 262 U.S. 355 (1923). [71] McCarthy _v._ Arndstein, 266 U.S. 34 (1924). [72] Hale _v._ Henkel, 201 U.S. 43 (1906); Wilson _v._ United States, 221 U.S. 361 (1911); Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946). [73] United States _v._ White, 322 U.S. 694 (1944). [74] Rogers _v._ United States, 340 U.S. 367, 372 (1951). [75] _See_ pp. 825-828 _ante_. [76] 335 U.S. 1 (1948). [77] Ibid. 33. In a dissenting opinion Justice Frankfurter argued: "The underlying assumption of the Court's opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become 'public' records in the sense that they fall outside the constitutional protection of the Fifth Amendment. The validity of such a doctrine lies in the scope of its implications. The claim touches records that may be required to be kept by federal regulatory laws, revenue measures, labor and census legislation in the conduct of business which the understanding and feeling of our people still treat as private enterprise, even though its relations to the public may call for governmental regulation, including the duty to keep designated records.... If Congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such papers 'public' and nonprivileged, there is little left to either the right of privacy or the constitutional privilege." Ibid. 70. [78] The Institutes, Part 2, 50-51 (1669). [79] On the above _see_ especially Justice Harlan's dissenting opinion in Hurtado _v._ California, 110 U.S. 516, 538 (1884); _also_ Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. 272, 280 (1856); Twining _v._ New Jersey, 211 U.S. 78 (1908); _also_ Corwin, Liberty Against Government (Louisiana State University Press), chap. III. [80] Scott _v._ Sandford, 10 How. 393, 450 (1857). [81] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). _See also_ Adair _v._ United States, 208 U.S. 161 (1908); and Lochner _v._ New York, 198 U.S. 45 (1905). [82] Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. 272, 276 (1856). [83] Union P.R. Co. _v._ United States (Sinking Fund Cases), 99 U.S. 700, 719 (1879). [84] Wong Wing _v._ United States, 163 U.S. 228, 238 (1896). [85] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905); _cf._ Quon Quon Poy _v._ Johnson, 273 U.S. 352 (1927). [86] Wight _v._ Davidson, 181 U.S. 371, 384 (1901). [87] Lovato _v._ New Mexico, 242 U.S. 199, 201 (1916). [88] Public Utility Comrs. _v._ Ynchausti & Co., 251 U.S. 401, 406 (1920). [89] Johnson _v._ Eisentrager, 339 U.S. 763 (1950); _cf._ In re Yamashita, 327 U.S. 1 (1946). Both decisions were reached by a divided Court. In the Yamashita Case, Justices Rutledge and Murphy dissented on the ground that the due process clause applies to every human being, including enemy belligerents. [90] Davidson _v._ New Orleans, 96 U.S. 97, 102 (1878). Public Clearing House _v._ Coyne, 194 U.S. 497, 508 (1904). [91] Ex parte Wall, 107 U.S. 265, 289 (1883). [92] Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 489 (1894); Cooke _v._ United States, 267 U.S. 517, 537 (1925). [93] Ex parte Wall, 107 U.S. 265 (1883). [94] Reaves _v._ Ainsworth, 219 U.S. 296, 304 (1911). _See also_ Ex parte Reed, 100 U.S. 13 (1879); Johnson _v._ Sayre, 158 U.S. 109 (1895); Mullan _v._ United States, 212 U.S. 516 (1909); United States ex rel. Creary _v._ Weeks, 259 U.S. 336 (1922). [95] Kahn _v._ Anderson, 255 U.S. 1 (1921). [96] Crain _v._ United States, 162 U.S. 625, 645 (1896). [97] Hopt _v._ Utah, 110 U.S. 574, 579 (1884). [98] Blackmer _v._ United States, 284 U.S. 421, 440 (1932). [99] Hovey _v._ Elliott, 167 U.S. 409, 417 (1897). [100] Beall _v._ New Mexico ex rel. Griffin, 16 Wall. 535 (1873). [101] United Surety Co. _v._ American Fruit Product Co., 238 U.S. 140 (1915). [102] Helis _v._ Ward, 308 U.S. 365 (1939). [103] Fayerweather _v._ Ritch, 195 U.S. 276 (1904). [104] Hanover Nat. Bank _v._ Moyses, 186 U.S. 181, 192 (1902). [105] Parsons _v._ District of Columbia, 170 U.S. 45 (1898). [106] Wright _v._ Davidson, 181 U.S. 371 (1901). [107] Jones _v._ Buffalo Creek Coal & Coke Co., 245 U.S. 328 (1917). [108] Luria _v._ United States, 231 U.S. 9 (1913). [109] Yee Hem _v._ United States, 268 U.S. 178 (1925). [110] Tot _v._ United States, 319 U.S. 463 (1943). [111] Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 152, 153 (1941). [112] 321 U.S. 503 (1944). [113] Ibid. 521. [114] Consolidated Edison Co. _v._ National Labor Relations Board, 305 U.S. 197 (1938). [115] Central of Georgia R. Co. _v._ Wright, 207 U.S. 127, 136, 138, 142 (1907); Lipke _v._ Lederer, 259 U.S. 557, 562 (1922). [116] Phillips _v._ Comr. of Internal Revenue, 283 U.S. 589 (1931). _Cf._ Springer _v._ United States, 102 U.S. 586, 593 (1881); and Passavant _v._ United States, 148 U.S. 214 (1893). [117] Wong Yang Sung _v._ McGrath, 339 U.S. 33, 50 (1950). [118] Morgan _v._ United States, 304 U.S. 1, 18-19 (1938). [119] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333, 349-350 (1938). [120] Western Paper Makers' Chemical Co. _v._ United States, 271 U.S. 268 (1926). _See also_ United States _v._ Abilene & S.R. Co., 265 U.S. 274, 288 (1924). [121] Consolidated Edison Co. _v._ National Labor Relations Board, 305 U.S. 197, 229-230 (1938). [122] Londoner _v._ Denver, 210 U.S. 373 (1908). [123] Federal Communications Commission _v._ WJR, 337 U.S. 265, 274-277 (1949). [124] Ibid. 276. "The requirements imposed by the guaranty [of due process of law] are not technical, nor is any particular form of procedure necessary." Inland Empire Council _v._ Millis, 325 U.S. 697, 710 (1945). _See_ Administrative Procedure Act, 60 Stat. 237 (1946); 5 U.S.C. §§ 1001-1011. [125] 298 U.S. 38 (1936). [126] Ibid. 51-54. Justices Brandeis, Stone and Cardozo, while concurring in the result, took exception to this proposition. [127] Federal Power Commission _v._ Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591 (1944). [128] Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591, 602 (1944). [129] 327 U.S. 1 (1946). [130] 339 U.S. 103 (1950). [131] Ibid. 111. [132] 339 U.S. 703 (1950). Justices Black, Douglas and Burton dissented. [133] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905). _See also_ Yamataya _v._ Fisher, 189 U.S. 86, 100 (1903). _Cf._ United States ex rel. Knauff _v._ Shaughnessy, 338 U.S. 537 (1950). [134] Oceanic Steam Navig. Co. _v._ Stranahan, 214 U.S. 320 (1909). [135] Kwock Jan Fat _v._ White, 253 U.S. 454, 457 (1920). _See also_ Chin Yow _v._ United States, 208 U.S. 8 (1908). [136] United States _v._ Sing Tuck, 194 U.S. 161 (1904). _See also_ Quon Quon Poy _v._ Johnson, 273 U.S. 352, 358 (1927). [137] Zakonaite _v._ Wolf, 226 U.S. 272 (1012). [138] 339 U.S. 33 (1950). [139] 60 Stat. 237 (1946); 5 U.S.C. § 1001 _et seq._ (1946). [140] United States ex rel. Vajtauer _v._ Comr. of Immigration, 273 U.S. 103, 106 (1927). _See also_ Mahler _v._ Eby, 264 U.S. 32, 41 (1924). [141] 198 U.S. 253 (1905). [142] Ng Fung Ho _v._ White, 259 U.S. 276, 281 (1922). [143] Ludecke _v._ Watkins, 335 U.S. 160 (1948). Three of the four dissenting Justices, Justices Douglas, Murphy and Rutledge, argued that even an enemy alien could not be deported without a fair hearing. [144] Steward Machine Co. _v._ Davis, 301 U.S. 548, 584-585 (1937); Currin _v._ Wallace, 306 U.S. 1, 14 (1939); Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 401 (1940); Detroit Bank _v._ United States, 317 U.S. 329, 337, 338 (1943). [145] Hill _v._ United States ex rel. Weiner, 300 U.S. 105, 109 (1937). [146] District of Columbia _v._ Brooke, 214 U.S. 138 (1909). [147] Panama R. Co. _v._ Johnson, 264 U.S. 375, 392 (1924). [148] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 562, 565 (1939). [149] Currin _v._ Wallace, 306 U.S. 1 (1939). [150] Detroit Bank _v._ United States, 317 U.S. 329 (1943). [151] Hurd _v._ Hodge, 334 U.S. 24 (1948). [152] Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946). [153] 323 U.S. 192 (1944). [154] Ibid. 198, 199. [155] Ibid. 208, 209. _Cf._ the following sentence from the concurring opinion of Justice Jackson in Railway Express Agency, Inc. _v._ New York, 336 U.S. 106, 112 (1949): "I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation." [156] 208 U.S. 161, 174 (1908). [157] 313 U.S. 177, 187 (1941). [158] 261 U.S. 525, 546 (1923). [159] 300 U.S. 379, 400 (1937). [160] Addyston Pipe and Steel Co. _v._ United States, 175 U.S. 211, 229 (1899). [161] Baltimore & O.R. Co. _v._ Interstate Commerce Commission, 221 U.S. 612 (1911); Wilson _v._ New, 243 U.S. 322 (1917); Ellis _v._ United States, 206 U.S. 246 (1907). _See also_ United States _v._ Garbish, 222 U.S. 257 (1911). [162] Patterson _v._ The "Eudora," 190 U.S. 169 (1903). [163] Philadelphia, B. & W.R. Co. _v._ Schubert, 224 U.S. 603 (1912). [164] Texas & N.O.R. Co. _v._ Brotherhood of Railway & S.S. Clerks, 281 U.S. 548 (1930); Virginian R. Co. _v._ System Federation, 300 U.S. 515, 559 (1937); National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). [165] Highland _v._ Russell Car & Snow Plow Co., 279 U.S. 253, 261 (1929); United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939); Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles _v._ Willingham, 321 U.S. 503 (1944). [166] Farrington _v._ Tokushige, 273 U.S. 284 (1927). [167] Yu Cong Eng _v._ Trinidad, 271 U.S. 500, 525 (1926). [168] Fleming _v._ Rhodes, 331 U.S. 100, 107 (1947). [169] Woods _v._ Stone, 333 U.S. 472 (1948). [170] 332 U.S. 194, 203 (1947). [171] Knox _v._ Lee, 12 Wall. 457, 551 (1871). [172] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935). [173] 44 Stat. 1424 (1927), 33 U.S.C. 901 _et seq._ (1946). [174] Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940). [175] Mulford _v._ Smith, 307 U.S. 38 (1939). [176] McFaddin _v._ Evans-Snider-Buel Co., 185 U.S. 505 (1902). [177] Montoya _v._ Gonzales, 232 U.S. 375 (1914). [178] Ochoa _v._ Hernandez y Morales, 230 U.S. 139 (1913). [179] United States ex rel. Burnett _v._ Teller, 107 U.S. 64, 68 (1883). [180] Oregon & C.R. Co. _v._ United States, 243 U.S. 549 (1917). [181] Capital Trust Co. _v._ Calhoun, 250 U.S. 208 (1919). [182] Frisbie _v._ United States, 157 U.S. 160 (1895); _see also_ Margolin _v._ United States, 269 U.S. 93 (1925); Hines _v._ Lowrey, 305 U.S. 85 (1938). [183] Wickard _v._ Filburn, 317 U.S. 111 (1942). [184] Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893). [185] Danzer Co. _v._ Gulf & S.I.R. Co., 268 U.S. 633 (1925). [186] Lynch _v._ United States, 292 U.S. 571, 579 (1934). _See also_ Perry _v._ United States, 294 U.S. 330 (1935). [187] Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555 (1935). [188] Wright _v._ Mountain Trust Co., 300 U.S. 440 (1937). [189] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago R.I. & P.R. Co., 294 U.S. 648 (1935). [190] Kuehner _v._ Irving Trust Co., 299 U.S. 445 (1937). [191] Re 620 Church Street Bldg. Corp., 299 U.S. 24 (1936). [192] Lynch _v._ United States, 292 U.S. 571, 581 (1934). [193] Dodge _v._ Osborn, 240 U.S. 118 (1916). [194] Graham _v._ Goodcell, 228 U.S. 409 (1931). [195] Anniston Mfg. Co. _v._ Davis, 301 U.S. 337 (1937). [196] United States _v._ Heinszen & Co., 206 U.S. 370, 386 (1907). [197] United States _v._ New York & C. Mail S.S. Co., 269 U.S. 304 (1925). [198] United States _v._ Carolene Products Co., 304 U.S. 144 (1938); Carolene Products Co. _v._ United States, 323 U.S. 18 (1944). [199] Kentucky Whip Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937). [200] Virginian R. Co. _v._ System Federation, 300 U.S. 515, 559 (1937); National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). [201] National Labor Relations Board _v._ Stowe Spinning Co., 336 U.S. 226 (1949). [202] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333 (1938). [203] Woods _v._ Miller, 333 U.S. 138, 146 (1948). _See also_ Bowles _v._ Willingham, 321 U.S. 503 (1944). [204] Ex parte Jackson, 96 U.S. 727 (1878). [205] Public Clearing House _v._ Coyne, 194 U.S. 497 (1904); sustained in Donaldson _v._ Read Magazine, 333 U.S. 178 (1948). [206] 194 U.S. 497, 505-506. [207] American School of Magnetic Healing _v._ McAnnulty, 187 U.S. 94 (1902). [208] United States ex rel. Milwaukee Social Democratic Pub. Co. _v._ Burleson, 255 U.S. 407 (1921). [209] St. Joseph Stock Yards Co. _v._ United States, 298 U.S. 38 (1936); Denver Union Stock Yards Co. _v._ United States, 304 U.S. 470 (1938). [210] 320 U.S. 591 (1944). The result of this case had been foreshadowed by the opinion of Justice Stone in Federal Power Commission _v._ Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942) to the effect that the Commission was not bound to the use of any single formula or combination of formulas in determining rates. [211] 320 U.S. 591, 602, 605 (1944). [212] American Telephone & Telegraph Co. _v._ United States, 299 U.S. 232 (1936); United States _v._ New York Telephone Co., 326 U.S. 638 (1946); Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S. 119 (1944). [213] Valvoline Oil Co. _v._ United States, 308 U.S. 141 (1939); Champlin Refining Co. _v._ United States, 329 U.S. 29 (1946). [214] Isbrandtsen-Moller Co. _v._ United States, 300 U.S. 139, 146 (1937). [215] St. Louis S.W. Ry. Co. _v._ United States, 245 U.S. 136, 143 (1917). [216] Akron C. & Y.R. Co. _v._ United States, 261 U.S. 184 (1923). [217] Dayton-Goose Creek R. Co. _v._ United States, 263 U.S. 456, 481, 483 (1924). [218] Chicago, I. & L.R. Co. _v._ United States, 270 U.S. 287 (1926). _Cf._ Seaboard Air Line R. Co. _v._ United States, 254 U.S. 57 (1920). [219] United States _v._ Berwind-White Coal Mine Co., 274 U.S. 564, 575 (1927). [220] United States ex rel. Attorney General _v._ Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909). [221] United States _v._ Lowden, 308 U.S. 225 (1939). [222] Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911). [223] Chicago, R.I. & P.R. Co. _v._ United States, 284 U.S. 80 (1931). [224] Railroad Retirement Board _v._ Alton R. Co., 295 U.S. 330 (1935). [225] United States _v._ Bennett, 232 U.S. 299, 307 (1914). [226] Cook _v._ Tait, 265 U.S. 47 (1924). [227] Helvering _v._ Lerner Stores Corp., 314 U.S. 463, 468 (1941). [228] Brushaber _v._ Union P.R. Co., 240 U.S. 1, 24 (1916). [229] McCray _v._ United States, 195 U.S. 27, 61 (1904). [230] Treat _v._ White, 181 U.S. 264 (1901). [231] Flint _v._ Stone Tracy Co., 220 U.S. 107 (1911). [232] National Paper & Type Co. _v._ Bowers, 266 U.S. 373 (1924). [233] Billings _v._ United States, 232 U.S. 261, 282 (1914). [234] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ Davis, 301 U.S. 619 (1937). [235] Bromley _v._ McCaughn, 280 U.S. 124 (1929). [236] Haavik _v._ Alaska Packers' Association, 263 U.S. 510 (1924). [237] Alaska Fish Salting & By-Products Co. _v._ Smith, 255 U.S. 44 (1921). [238] La Belle Iron Works _v._ United States, 256 U.S. 377 (1921). [239] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940). [240] Fernandez _v._ Wiener, 326 U.S. 340 (1945); _cf._ Coolidge _v._ Long, 282 U.S. 582 (1931). [241] Untermeyer _v._ Anderson, 276 U.S. 440 (1928). _See also_ Blodgett _v._ Holden, 275 U.S. 142 (1927); Nichols _v._ Coolidge, 274 U.S. 531 (1927). [242] Heiner _v._ Donnan, 285 U.S. 312 (1932). [243] United States _v._ Hudson, 299 U.S. 498 (1937). _See also_ Stockdale _v._ Insurance Companies, 20 Wall. 323, 331, 341 (1874); Brushaber _v._ Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch _v._ Hornby, 247 U.S. 339, 343 (1918). [244] Cooper _v._ United States, 280 U.S. 409 (1930); _see also_ Reinecke _v._ Smith, 289 U.S. 172 (1933). [245] Helvering _v._ Mitchell, 303 U.S. 391 (1938). [246] Helvering _v._ Nat. Grocery Co., 304 U.S. 282 (1938). [247] Patton _v._ Brady, 184 U.S. 608 (1902). [248] Tyler _v._ United States, 281 U.S. 497 (1930); United States _v._ Jacobs, 306 U.S. 363 (1939). [249] Reinecke _v._ Smith, 289 U.S. 172 (1933). [250] Tiger _v._ Western Investment Co., 221 U.S. 286 (1911). _See also_ Brader _v._ James, 246 U.S. 88 (1918); Williams _v._ Johnson, 239 U.S. 414 (1915); Lone Wolf _v._. Hitchcock, 187 U.S. 553 (1903). [251] Choate _v._ Trapp, 224 U.S. 665 (1912). _See also_ English _v._ Richardson, 224 U.S. 680 (1912). [252] Garfield _v._ United States, 211 U.S. 249 (1908). _See also_ United States ex rel. Turner _v._ Fisher, 222 U.S. 204 (1911). [253] Winton _v._ Amos, 255 U.S. 373 (1921). [254] United States ex rel. Brown _v._ Lane, 232 U.S. 598 (1914). [255] Walker _v._ McLoud, 204 U.S. 302, 309 (1907); Carpenter _v._ Shaw, 280 U.S. 363 (1930). [256] United States _v._ Jones, 109 U.S. 513, 518 (1883); United States _v._ Carmack, 329 U.S. 230, 241 (1946). [257] United States _v._ Lynah, 188 U.S. 445, 465 (1903). [258] Kohl _v._ United States, 91 U.S. 367, 374 (1876). [259] Chappell _v._ United States, 160 U.S. 499, 510 (1896). [260] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941). [261] United States _v._ Chemical Foundation, 272 U.S. 1, 11 (1926). _See also_ Brown _v._ U.S., 8 Cr. 110 (1814); Page (Miller) _v._ United States, 11 Wall. 268, 304 (1871); Woodson _v._ Deutsche G. & S.S.V. Roessler, 292 U.S. 449 (1934); United States _v._ Dunnington, 146 U.S. 338 (1892); Cummings _v._ Deutsche Bank, 300 U.S. 115 (1937). [262] Stoehr _v._ Wallace, 255 U.S. 239, 245 (1921). [263] Silesian-American Corp. _v._ Clark, 332 U.S. 469 (1947); Becker Steel Co. _v._ Cummings, 296 U.S. 74 (1935). [264] Russian Volunteer Fleet _v._ United States, 282 U.S. 481 (1931), followed in Guessefeldt _v._ McGrath, 342 U.S. 308 (1952). [265] Shoemaker _v._ United States, 147 U.S. 282, 298 (1893). [266] 327 U.S. 546 (1946). [267] Ibid. 551. [268] Ibid. 556-557; citing United States _v._ Gettysburg Electric R. Co., 160 U.S. 668, 680 (1896); Rindge Co. _v._ Los Angeles County, 262 U.S. 700, 709 (1923); Old Dominion Land Co. _v._ United States, 269 U.S. 55, 66 (1925); Cincinnati _v._ Vester, 281 U.S. 439, 446 (1930). [269] 327 U.S. 546, 557-558. [270] United States _v._ Gettysburg Electric R. Co., 160 U.S. 668 (1896). [271] Brown _v._ United States, 263 U.S. 78 (1923). [272] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 345 (1893). [273] James _v._ Campbell, 104 U.S. 356, 358 (1882). _See also_ Hollister _v._ Benedict & B. Mfg. Co., 113 U.S. 59, 67 (1885). [274] Omnia Commercial Co. _v._ United States, 261 U.S. 502 (1923). [275] International Paper Co. _v._ United States, 282 U.S. 399 (1931). [276] Hannibal Bridge Co. _v._ United States, 221 U.S. 194, 205 (1911). [277] Old Dominion Land Co. _v._ United States, 269 U.S. 55 (1925). [278] United States _v._ Sponenbarger, 308 U.S. 256 (1939). [279] 12 Wall. 457, 551 (1871). [280] 331 U.S. 745 (1947). [281] Ibid. 748. [282] United States _v._ Causby, 328 U.S. 256 (1946). [283] Portsmouth Harbor Land & Hotel Co. _v._ United States, 260 U.S. 327 (1922). _Cf._ Portsmouth Harbor Land & Hotel Co. _v._ United States, 250 U.S. 1 (1919); Peabody _v._ United States, 231 U.S. 530 (1913). [284] Richards _v._ Washington Terminal Co., 233 U.S. 546 (1914). [285] Gibson _v._ United States, 166 U.S. 269, 271, 272 (1897). [286] 10 Wall. 557 (1871). [287] Ibid. 563. [288] United States _v._ Appalachian Electric Power Co., 311 U.S. 377, 407, 409 (1940). [289] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 523 (1941). [290] United States _v._ Commodore Park, Inc., 324 U.S. 386 (1945). [291] Lewis Blue Point Oyster Cultivation Co. _v._ Briggs, 229 U.S. 82 (1913). [292] United States _v._ Chandler-Dunbar Co., 229 U.S. 53 (1913). [293] United States _v._ Willow River Power Co., 324 U.S. 499 (1945). [294] United States _v._ Appalachian Electric Power Co., 311 U.S. 377, 427 (1940). [295] United States _v._ Lynah, 188 U.S. 445 (1903). _See also_ Jacobs _v._ United States, 290 U.S. 13 (1933). [296] United States _v._ Cress, 243 U.S. 316, 328, 329 (1917). [297] United States _v._ Dickinson, 331 U.S. 745 (1947). [298] United States _v._ Kansas City Ins. Co., 339 U.S. 799 (1950). [299] United States _v._ Cress, 243 U.S. 316 (1917). [300] Horstmann Co. _v._ United States, 257 U.S. 138 (1921). [301] Bauman _v._ Ross, 167 U.S. 548 (1897); Sharp _v._ United States, 191 U.S. 341, 351-352, 354 (1903). [302] United States _v._ Welch, 217 U.S. 333 (1910). [303] Bauman _v._ Ross, 167 U.S. 548 (1897). [304] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 326 (1893). [305] Reichelderfer _v._ Quinn, 287 U.S. 315, 318 (1932). [306] Sharp _v._ United States, 191 U.S. 341 (1903). [307] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 326 (1893). [308] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 281 (1943); United States _v._ Miller, 317 U.S. 369, 375 (1943). [309] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 275 (1943); United States _v._ New River Collieries Co., 262 U.S. 341 (1923). [310] United States _v._ Miller, 317 U.S. 369, 374 (1943). _See also_ Olson _v._ United States, 292 U.S. 246 (1934). _Cf._ Kimball Laundry Co. _v._ United States, 338 U.S. 1 (1949). [311] Boom Co. _v._ Patterson, 98 U.S. 403 (1879); McCandless _v._ United States, 298 U.S. 342 (1936). [312] United States _v._ Chandler-Dunbar Co., 229 U.S. 53 (1913). [313] United States _v._ John J. Felin & Co., 334 U.S. 624 (1948). [314] United States _v._ Commodities Trading Corp., 339 U.S. 121 (1950). [315] United States _v._ Cors, 337 U.S. 325, 333 (1949). In United States _v._ Toronto Nav Co., 338 U.S. 396 (1949) the Court reversed a decision of the Court of Claims which based an award for an obsolete Great Lakes car ferry in part on a capitalization of its prior earnings, and in part on isolated sales of similar vessels used between Florida and Cuba. [316] Mitchell _v._ United States, 267 U.S. 341 (1925). [317] United States _v._ General Motors Corp., 323 U.S. 373, 379 (1945). [318] Ibid. 382-384. [319] United States _v._ Petty Motor Co., 327 U.S. 372 (1946). [320] 338 U.S. 1 (1949). [321] 341 U.S. 114 (1951). [322] Danforth _v._ United States, 308 U.S. 271, 284 (1939). [323] United States _v._ Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs _v._ United States, 290 U.S. 13, 17 (1933). [324] Albrecht _v._ United States, 329 U.S. 599 (1947). [325] Henkels _v._ Sutherland, 271 U.S. 298 (1926). _See also_ Phelps _v._ United States, 274 U.S. 341 (1927). [326] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 327 (1893). [327] United States _v._ Jones, 109 U.S. 513, 519 (1883). [328] Bauman _v._ Ross, 167 U.S. 548, 593 (1897). [329] United States _v._ Lee, 106 U.S. 196, 220 (1882). [330] Jacobs _v._ United States, 290 U.S. 13 (1933); United States _v._ Great Falls Mfg. Co., 112 U.S. 645 (1884). [331] Hurley _v._ Kincaid, 285 U.S. 95 (1932). [332] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641, 659 (1890). [333] United States _v._ Russell, 13 Wall. 623 (1871). [334] Shoemaker _v._ United States, 147 U.S. 282, 302 (1893). AMENDMENT 6 RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS Page Coverage of the amendment 877 Offenses against the United States 877 Trial by jury 878 Impartial jury 879 Place of trial 880 Definition of crime 881 Right of confrontation 884 Assistance of counsel 884 RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS Amendment 6 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Coverage of the Amendment Criminal prosecutions in the District of Columbia[1] and in incorporated territories[2] must conform to this amendment, but those in unincorporated territories need not.[3] For this purpose, Alaska was held to be an incorporated territory even before the organization of its territorial government.[4] In in re Ross[5] the requirements of this amendment were held to cover only citizens and others within the United States or who are brought to the United States for trial for alleged offenses committed elsewhere, not to citizens residing or temporarily sojourning abroad.[6] Accordingly, laws passed to carry into effect treaties granting extraterritorial rights were not rendered unconstitutional by the fact that they did not secure to an accused the right to trial by jury. Offenses Against the United States There are no common law offenses against the United States. Only those acts which Congress has forbidden, with penalties for disobedience of its command, are crimes.[7] As used in the Constitution the word "crime" embraces only offenses of a serious character. Petty offenses may be proceeded against summarily in any tribunal legally constituted for that purpose.[8] The nature of the act and the severity of punishment prescribed determine whether an offense is serious or petty. A penalty of $50 for a violation, not necessarily involving moral delinquency, of a revenue statute indicates only a petty offense.[9] The unlawful sale of the unused portion of railway excursion tickets without a license, is at most an infringement of local police regulations; and its moral quality is relatively inoffensive; it may therefore be tried without a jury.[10] But a charge of driving an automobile recklessly, so as to endanger life and property, is a "grave offense" for which a jury trial is requisite.[11] A conspiracy to invade the rights of another person also falls in that category.[12] Actions to recover penalties imposed by act of Congress,[13] deportation proceedings[14] and contempt proceedings[15] for violation of an injunction have been held not to be criminal prosecutions. Only a prosecution which is technically criminal in its nature falls within the purview of Amendment VI.[16] The concept of a criminal prosecution is much narrower than that of a "criminal case" under the Fifth Amendment.[17] Trial by Jury The trial by jury required by the Constitution includes all the essential elements of jury trial which were recognized in this country and in England when the Constitution was adopted;[18] a jury must consist of twelve men, neither more nor less;[19] the trial must be held in the presence and under the superintendence of a judge having power to instruct the jurors as to the law and advise them in respect of the facts,[20] and the verdict must be unanimous.[21] But the requirement of a jury trial is not jurisdictional; it is a privilege which the defendant may waive with the consent of the Government and the approval of the court. There is no distinction between a complete waiver of a jury and a consent to be tried by less than twelve men.[22] When a person is charged with more than one crime, the right to a speedy trial does not require that he be first tried on the earliest indictment; no constitutional right is violated by removing him to another jurisdiction for trial on a later indictment.[23] Impartial Jury "* * *, the guarantee of an impartial jury to the accused in a criminal prosecution, * * *, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. * * * To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution."[24] The qualification of government employees to serve on juries in the District of Columbia has been the principal source of controversy concerning the meaning of the phrase "impartial jury." In 1909, the Supreme Court decided, on common law grounds, that such employees were disqualified in criminal proceedings instituted by the Government.[25] As the proportion of public to private employees increased, this decision created difficulties in securing properly qualified jurors. To meet the situation, Congress removed the disqualification by statute in 1935. In United States _v._ Wood,[26] the act was held valid as applied in a criminal prosecution for theft from a private corporation. By a narrow majority the Court has subsequently held that government employees as a class are not disqualified by an implied bias against a person accused of violating the federal narcotics statutes,[27] nor against an officer of the Communist party charged with willful failure to appear before a Congressional committee in compliance with a subpoena.[28] In both cases, the way was left open for a defendant to establish the disqualification of federal employees by adducing proof of actual bias. The Constitution does not require Congress to allow peremptory challenge to jurors in criminal cases. Consequently the contention that several defendants being tried together on a charge of conspiracy were denied a trial by an impartial jury because each was not allowed the full statutory number of peremptory challenges was without merit.[29] It is good ground for challenge for cause that a juror has formed an opinion as to the issue to be tried. But every opinion which a juror may entertain does not necessarily disqualify him. Upon the trial of the issue of fact raised by such a challenge, the Court must determine whether the nature and strength of the opinion are such as in law necessary to raise the presumption of partiality.[30] A member of the Socialist party is not denied any constitutional right by being tried by a jury composed exclusively of members of other parties and of property owners.[31] Place of Trial An accused cannot be tried in one district under an indictment showing that the offense was committed in another;[32] the locality in which the offense is charged to have been committed determines the place and court of trial.[33] In a prosecution for conspiracy, the accused may be tried in any State and district where an overt act was performed.[34] Where a United States Senator was indicted for agreeing to receive compensation for services to be rendered in a proceeding before a government department, and it appeared that a tentative arrangement for such services was made in Illinois and confirmed in St. Louis, the defendant was properly tried in St. Louis, although he was not physically present in Missouri when notice of ratification was dispatched.[35] The offense of obtaining transportation of property in interstate commerce at less than the carrier's published rates,[36] or the sending of excluded matter through the mails,[37] may be made triable in any district through which the forbidden transportation is conducted. By virtue of a presumption that a letter is delivered in the district to which it is addressed, the offense of scheming to defraud a corporation by mail was held to have been committed in that district although the letter was posted elsewhere.[38] The Constitution does not require any preliminary hearing before issuance of a warrant for removal of an accused to the court having jurisdiction of the charge.[39] The assignment of a district judge from one district to another, conformably to statute, does not create a new judicial district whose boundaries are undefined nor subject the accused to trial in a district not established when the offense with which he is charged was committed.[40] For offenses against federal laws not committed within any State, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.[41] The place of trial may be designated by statute after the offense has been committed.[42] Definition of Crime The effect of the clause entitling an accused to know the nature and cause of the accusation against him commences with the statutes fixing or declaring offenses. It adopts the general rule of the common law that such statutes are not to be construed to embrace offenses which are not within their intention and terms. Under this clause it is necessary that a crime "be in some way declared by the legislative power"; it "cannot be constructed by the courts from any supposed intention of the legislature which the statute fails to state."[43] A criminal statute which is so vague that it leaves the standard of guilt to the "variant views of the different courts and juries which may be called on to enforce it"[44] cannot be squared with this provision. Thus it was held, in the United States v. Cohen Grocery Co.,[45] that a statute making it unlawful "for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" was unconstitutional because it was not "adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them."[46] But a provision of the Immigration Act[47] which makes it a felony for an alien against whom a specified order of deportation is pending to "willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure" is not, on its face, void for indefiniteness.[48] An important aspect of this problem was presented, but not definitely settled, in Screws _v._ United States.[49] There State law enforcement officers had been convicted of violating a federal law making it a crime for anyone acting under color of any law willfully to deprive anyone of rights secured by the Constitution of the United States.[50] The indictment charged that in beating to death a man whom they had just arrested, these officers had deprived him of life without due process of law. The defendant claimed that the statute was unconstitutional insofar as it made criminal acts in violation of the due process clause, because that concept was too vague to supply an ascertainable standard of guilt.[51] Four opinions were written in the Supreme Court, no one of which obtained the concurrence of a majority of the Justices. To "avoid grave constitutional questions" four members construed the word "willfully" as "connoting a purpose to deprive a person of a specific constitutional right,"[52] and held that such "requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness."[53] Justices Murphy and Rutledge considered the statute to be sufficiently definite with respect to the offense charged and thought it unnecessary to anticipate doubts that might arise in other cases.[54] However, to prevent a stalemate, Justice Rutledge voted with the four members who believed the case should be reversed to be tried again on their narrower interpretation of the statute. Justices Roberts, Frankfurter and Jackson found the act too indefinite to be rescued by a restrictive interpretation. With respect to the effect of the requirement of willfulness, they said: "If a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening * * *, then 'willfully' bringing to pass such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable. 'Willfully' doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done 'willfully.' It is true also of a statute that it cannot lift itself up by its bootstraps."[55] In Williams _v._ United States,[56] however, it was held by a sharply divided Court that § 20 did not err for vagueness where the indictment made it clear that the constitutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[57] Statutes prohibiting the coercion of employers to hire unneeded employees,[58] establishing minimum wages and maximum hours of service for persons engaged in the production of goods for interstate commerce,[59] forbidding undue or unreasonable restraints of trade,[60] making it unlawful to build fires near any forest or inflammable material,[61] banning the receipt of contributions by members of Congress from federal employees for any political purpose,[62] or penalizing the copying or taking of documents connected with the national defense, with intent, or reason to believe that they are to be used to the injury of the United States or to the advantage of a foreign nation,[63] have been held to be sufficiently definite to be constitutional. A provision penalizing excessive charges in connection with loans from the Home Owners Loan Corporation was not rendered indefinite by the exception of "ordinary fees for services actually rendered,"[64] nor was a statute forbidding misstatement of the quantity of the contents of a package wanting in certainty by reason of a proviso permitting "reasonable variations."[65] The constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge.[66] No indictment is sufficient if it does not allege all of the ingredients which constitute the crime. Where the language of a statute is, according to the natural import of the words, fully descriptive of the offense, it is sufficient if the indictment follows the statutory phraseology;[67] but where the elements of the crime have to be ascertained by reference to the common law or to other statutes, it is not sufficient to set forth the offense in the words of the statute; the facts necessary to bring the case within the statutory definition must also be alleged.[68] If an offense cannot be accurately and clearly described without an allegation that the accused is not within an exception contained in the statutes, an indictment which does not contain such allegation is defective.[69] Despite the omission of obscene particulars, an indictment in general language is good if the unlawful conduct is so described so as reasonably to inform the accused of the nature of the charge sought to be established against him.[70] The Constitution does not require the Government to furnish a copy of the indictment to an accused.[71] Right of Confrontation The right of confrontation did not originate in the Sixth Amendment; it was a common law right having recognized exceptions. The purpose of the constitutional provision was to preserve that right, but not to broaden it or wipe out the exceptions.[72] The amendment does not accord a right to be apprised of the names of witnesses who appeared before a grand jury.[73] It does not preclude the admission of dying declarations,[74] nor of the stenographic report of testimony given at a former trial by a witness since deceased.[75] An accused who is instrumental in concealing a witness cannot complain of the admission of evidence to prove what that witness testified at a former trial on a different indictment.[76] If the absence of the witness is chargeable to the negligence of the prosecution, rather than to the procurement of the accused, evidence given in a preliminary hearing before a United States Commissioner cannot be used at the trial.[77] A statute which declared that the judgment of conviction against the principal felons should be conclusive evidence, in a prosecution against persons to whom they had transferred property, that the property had been stolen or embezzled from the United States, was held to contravene this clause.[78] Assistance of Counsel The Sixth Amendment withholds from the federal courts, in all criminal proceedings, the power to deprive an accused of his life or liberty unless he has waived, or waives, the assistance of counsel.[79] Since deportation proceedings are not criminal in character, the admission of testimony given by the alien during investigation prior to arrest did not render the hearing unfair, despite the fact that he had not been advised of his right to have counsel or to decline to answer questions as to his alienage.[80] The right to counsel is violated where, over the defendant's objection, the court requires his counsel to represent a co-defendant whose interest may possibly conflict with his;[81] likewise where the trial judge decided, without notice to a defendant and without his presence, that the latter had consented to be represented by counsel who also represented another defendant in the same case.[82] The right may be waived by a defendant whose education qualifies him to make an intelligent choice.[83] A sentence imposed upon a plea of guilty is invalid if such plea was entered through deception or coercion of the prosecuting attorney, or in reliance upon erroneous advice given by a lawyer in the employ of the Government, where the defendant did not have the assistance of counsel and had not understandingly waived the right to such assistance.[84] Notes [1] Callan _v._ Wilson, 127 U.S. 540 (1888). [2] Reynolds _v._ United States, 98 U.S. 145 (1879). _See also_ Lovato _v._ New Mexico, 242 U.S. 199 (1916). [3] Balzac _v._ Porto Rico, 258 U.S. 298, 304-305 (1922). [4] Rassmussen _v._ United States, 197 U.S. 516 (1905). [5] 140 U.S. 453 (1891). [6] Ibid. 464. [7] United States _v._ Hudson & Goodwin, 7 Cr. 32, 33 (1812); United States _v._ Coolidge, 1 Wheat. 415 (1816); United States _v._ Britton, 108 U.S. 199, 206 (1883); United States _v._ Eaton, 144 U.S. 677, 687 (1892). [8] Callan _v._ Wilson, 127 U.S. 540, 552 (1888). [9] Schick _v._ United States, 195 U.S. 65, 68 (1904). [10] District of Columbia _v._ Clawans, 300 U.S. 617 (1937). [11] District of Columbia _v._ Colts, 282 U.S. 63 (1930). [12] Callan _v._ Wilson, 127 U.S. 540 (1888). [13] Oceanic Navigation Co. _v._ Stranahan, 214 U.S. 320 (1909); Hepner _v._ United States, 213 U.S. 103 (1909); United States _v._ Regan, 232 U.S. 37 (1914). [14] United States ex rel. Turner _v._ Williams, 194 U.S. 279, 289 (1904); Zakonaite _v._ Wolf, 226 U.S. 272 (1912). [15] In re Debs, 158 U.S. 564, 594 (1895); Gompers _v._ United States, 233 U.S. 604 (1914); Myers _v._ United States, 264 U.S. 95 (1924). [16] United States _v._ Zucker, 161 U.S. 475, 481 (1896). [17] Counselman _v._ Hitchcock, 142 U.S. 547, 563 (1892). [18] Patton _v._ United States, 281 U.S. 276 (1930). [19] Thompson _v._ Utah, 170 U.S. 343, 350 (1898); Rassmussen _v._ United States, 197 U.S. 518 (1905). [20] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899). [21] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900); Andres _v._ United States, 333 U.S. 740 (1948). [22] Patton _v._ United States, 281 U.S. 276 (1930). [23] Beavers _v._ Haubert, 198 U.S. 77 (1905). [24] Callan _v._ Wilson, 127 U.S. 540, 557 (1888). [25] Crawford _v._ United States, 212 U.S. 183 (1909). [26] 299 U.S. 123 (1936). [27] Frazier _v._ United States, 335 U.S. 497 (1948). [28] Dennis _v._ United States, 339 U.S. 162 (1950). [29] Stilson _v._ United States, 250 U.S. 583, 586 (1919). [30] Reynolds _v._ United States, 98 U.S. 145 (1879). [31] Ruthenberg _v._ United States, 245 U.S. 480 (1918). [32] Salinger _v._ Loisel, 265 U.S. 224 (1924). [33] Beavers _v._ Henkel, 194 U.S. 73, 83 (1904). [34] Brown _v._ Elliott, 225 U.S. 392 (1912); Hyde _v._ United States, 225 U.S. 347 (1912); Haas _v._ Henkel, 216 U.S. 462 (1910). [35] Burton _v._ United States, 202 U.S. 344 (1906). [36] Armour Packing Co. _v._ United States, 209 U.S. 56 (1908). [37] United States _v._ Johnson, 323 U.S. 273, 274 (1944). [38] Hagner _v._ United States, 285 U.S. 427, 429 (1932). [39] Hughes _v._ Gault, 271 U.S. 142 (1926). _Cf._ Tinsley _v._ Treat, 205 U.S. 20 (1907); Beavers _v._ Henkel, 194 U.S. 73, 84 (1904). [40] Lamar _v._ United States, 241 U.S. 103 (1916). [41] Jones _v._ United States, 137 U.S. 202, 211 (1890); United States _v._ Dawson, 15 How. 467, 488 (1853). [42] Cook _v._ United States, 138 U.S. 157, 182 (1891). _See also_ United States _v._ Socony-Vacuum Oil Co., 310 U.S. 150, 250-254 (1940); _also_ United States _v._ Johnson, 323 U.S. 273 (1944). [43] United States _v._ Potter, 56 F. 83, 88 (1892). _See also_ Viereck _v._ United States, 318 U.S. 236 (1943); Kraus Bros. _v._ United States, 327 U.S. 614, 621 (1946). [44] United States _v._ Cohen Grocery Co., 264 F. 218, 220 (1920), affirmed 255 U.S. 81 (1921). [45] 255 U.S. 81 (1921). [46] Ibid. 89. [47] 8 U.S.C. § 145 (c). [48] United States _v._ Spector, 343 U.S. 169 (1952). [49] 325 U.S. 91 (1945). [50] Section 20 of the Criminal Code; 18 U.S.C. § 242. [51] 325 U.S. 91, 94, 95. [52] Ibid. 101. [53] Ibid. 103. [54] Ibid. 113, 135. [55] Ibid. 154. [56] 341 U.S. 97 (1951). [57] _See also_ Koehler et al. _v._ United States, 342 U.S. 852 (1951). [58] United States _v._ Petrillo, 332 U.S. 1 (1947). [59] United States _v._ Darby, 312 U.S. 100, 125 (1941). [60] Nash _v._ United States, 229 U.S. 373 (1913). [61] United States _v._ Alford, 274 U.S. 264 (1927). [62] United States _v._ Wurzbach, 280 U.S. 396 (1930). [63] Gorin _v._ United States, 312 U.S. 19 (1941). [64] Kay _v._ United States, 303 U.S. 1 (1938). [65] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77 (1932). [66] United States _v._ Cruikshank, 92 U.S. 542, 544, 558 (1876); United States _v._ Simmons, 96 U.S. 360 (1878); Bartell _v._ United States, 227 U.S. 427 (1913); Burton _v._ United States, 202 U.S. 344 (1906). [67] Potter _v._ United States, 155 U.S. 438, 444 (1894). [68] United States _v._ Carll, 105 U.S. 611 (1882). [69] United States _v._ Cook, 17 Wall. 168, 174 (1872). [70] Rosen _v._ United States, 161 U.S. 29, 40 (1896). [71] United States _v._ Van Duzee, 140 U.S. 169, 173 (1891). [72] Salinger _v._ United States, 272 U.S. 542, 548 (1926). [73] Wilson _v._ United States, 221 U.S. 361 (1911). [74] Kirby _v._ United States, 174 U.S. 47, 61 (1809); Robertson _v._ Baldwin, 165 U.S. 275, 282 (1897). [75] Mattox _v._ United States, 156 U.S. 237, 240 (1895). [76] Reynolds _v._ United States, 98 U.S. 145, 160 (1879). [77] Motes _v._ United States, 178 U.S. 458 (1900). [78] Kirby _v._ United States, 174 U.S. 47 (1899). [79] Johnson _v._ Zerbst, 304 U.S. 458, 463 (1938). [80] United States ex rel. Bilokumsky _v._ Tod, 263 U.S. 149 (1923). [81] Glasser _v._ United States, 315 U.S. 60 (1942). [82] United States _v._ Hayman, 342 U.S. 205 (1952). [83] Adams _v._ United States, 317 U.S. 269 (1942). [84] Walker _v._ Johnston, 312 U.S. 275 (1941); Von Moltke _v._ Gillies, 332 U.S. 708 (1948). _See also_ United States ex rel. McCann _v._ Adams, 320 U.S. 220 (1943). AMENDMENT 7 CIVIL TRIALS Page Trial by jury in civil cases 891 Origin and purpose of the amendment 891 Trial by jury, elements of, preserved 891 To what courts and cases applicable 892 Cases not governed by the amendment 893 Restrictive force of the amendment 894 Judge and jury 895 Line drawn by the common law 895 Directed verdicts 896 Waiver of right of trial by jury 897 Appeals from State courts to the Supreme Court 897 CIVIL TRIALS Amendment 7 In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Trial by Jury in Civil Cases ORIGIN AND PURPOSE OF THE AMENDMENT Late in the Federal Convention it was moved that a clause be inserted in article III, section 2 of the draft Constitution to read "* * * and a trial by jury shall be preserved as usual in civil cases." The proposal failed when it was pointed out that the make-up and powers of juries differed greatly in different States and that a uniform provision for all States was impossible.[1] The objection evidently anticipated that in cases falling to their jurisdiction on account of the diversity of citizenship of the parties, the federal courts would conform their procedure to the laws of the several States.[2] The omission, however, raised an objection to the Constitution which "was pressed with an urgency and zeal * * * well-nigh preventing its ratification."[3] Nor was the agitation assuaged by Hamilton's suggestion in The Federalist that Congress would have ample power, in establishing the lower federal courts and in making "exceptions" to the Supreme Court's appellate jurisdiction, to safeguard jury trial in civil cases according to the standards of the common law.[4] His argument bore fruit, nevertheless, in the Seventh Amendment, whereby, in the words of the Court, the right of trial by jury is preserved as it "existed under the English common law when the amendment was adopted."[5] TRIAL BY JURY, ELEMENTS OF, PRESERVED "Trial by jury," in the sense of Amendment VII, "is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence."[6] A further requisite is "that there shall be a unanimous verdict of the twelve jurors in all federal courts where a jury trial is held."[7] Assuming such a jury, the amendment has for its primary purpose the preservation of "* * * the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court."[8] But the amendment "does not exact the retention of old forms of procedure" nor does it "prohibit the introduction of new methods of ascertaining what facts are in issue * * *" or new rules of evidence.[9] TO WHAT COURTS AND CASES APPLICABLE Amendment VII governs only courts which sit under the authority of the United States,[10] including courts in the territories[11] and the District of Columbia.[12] It does not apply to a State court even when it is enforcing a right created by federal statute.[13] Its coverage is "* * * limited to rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law and by the appropriate modes and proceedings of courts of law."[14] The term "common law" is used in contradistinction to suits in which equitable rights alone were recognized at the time of the framing of the amendment and equitable remedies were administered.[15] Hence it does not apply to cases where recovery of money damages is incident to equitable relief even though damages might have been recovered in an action at law.[16] Nor does it apply to cases in admiralty and maritime jurisdiction, in which the trial is by a court without a jury.[17] Nor does it reach statutory proceedings unknown to the common law, such as an application to a court of equity to enforce an order of an administrative body.[18] CASES NOT GOVERNED BY THE AMENDMENT Omission of a jury has been upheld in the following instances on the ground that the suit in question was not a suit at common law within the meaning of the Seventh Amendment; (1) Suits to enforce claims against the United States.[19] (2) Suit authorized by Territorial law against a municipality, based upon a moral obligation only.[20] (3) Suit to cancel a naturalization certificate for fraud.[21] (4) Order of deportation of an alien.[22] (5) Assessment of damages in patent infringement suit.[23] (6) Longshoremen's and Harbor Workers' Compensation Act.[24] (7) Jurisdiction of bankruptcy court to examine into reasonableness of fees paid by person for legal services in contemplation of bankruptcy.[25] (8) Final decision of customs appraisers in regard to value of imports.[26] It has been further held that there was no infringement of the constitutional right to trial by jury in the following circumstances: (1) A territorial statute requiring specific answers to special interrogations, in addition to a general verdict.[27] (2) A rule of a District of Columbia court authorizing judgment by default in an action _ex contractu_, on failure to show by affidavit a good defense.[28] (3) A federal court's observance of a State statute making a certified copy of a coroner's verdict _prima facie_ evidence of the facts stated.[29] (4) A federal statute (24 Stat. 379) giving _prima facie_ effect to findings of the Interstate Commerce Commission.[30] (5) An order of a District of Columbia court appointing an auditor in a law case to examine books and papers, make computations, hear testimony, and render a report which will serve as _prima facie_ evidence of the facts found and conclusions reached, unless rejected by the court.[31] (6) A decree of the Supreme Court enjoining, in the exercise of its original jurisdiction, the State of Louisiana from continuing to trespass upon lands under the ocean beyond its coasts and requiring the State to account for the money derived from that area.[32] RESTRICTIVE FORCE OF THE AMENDMENT But the absolute right to a trial of the facts by a jury may not be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action or during its pendency. Such aid in the federal courts must be sought in separate proceedings.[33] Federal statutes from Revised Statutes (§ 723) through the Judicial Code (§ 267), prohibiting courts of the United States to sustain suits in equity where the remedy is complete at law, serve to guard the right of trial by jury, and should be liberally construed.[34] So also should Equity Rule 30, requiring the answer to a bill in equity to state any counterclaim arising out of the same transaction; such rule was not intended to change the line between law and equity, and must be construed as referring to equitable counterclaims only.[35] Nor may the distinction between law and equity, so far as federal courts are concerned, be obliterated by State legislation.[36] So, where State law, in advance of judgment, treated the whole proceeding upon a simple contract, including determination of validity and of amount due, as an equitable proceeding, it brought the case within the federal equity jurisdiction on removal. Ascertainment of plaintiff's demand being properly by action at law, however, the fact that the equity court had power to summon a jury on occasion did not afford an equivalent of the right of trial by jury secured by the Seventh Amendment.[37] But where State law gives an equitable remedy, such as to quiet title to land, the federal courts will enforce it if it does not obstruct the rights of the parties as to trial by jury.[38] An order of the Court of Claims attempting to reinstate a dismissed case in violation of plaintiff's right to dismiss violates the latter's right to trial by jury and may be corrected by mandamus.[39] Judge and Jury LINE DRAWN BY THE COMMON LAW As was noted above, the primary purpose of the amendment was to preserve the historic line separating the province of the jury from that of the judge, without at the same time preventing procedural improvement which did not transgress this line. Elucidating this formula, the Court has achieved the following results: It is constitutional for a federal judge, in the course of trial, to express his opinion upon the facts, provided all questions of fact are ultimately submitted to the jury;[40] to call the jury's attention to parts of the evidence he deems of special importance,[41] being careful to distinguish between matters of law and matters of opinion in relation thereto;[42] to inform the jury when there is not sufficient evidence to justify a verdict, that such is the case;[43] to direct the jury, after plaintiff's case is all in, to return a verdict for the defendant on the ground of the insufficiency of the evidence;[44] to set aside a verdict which in his opinion is against the law or the evidence, and order a new trial;[45] to refuse defendant a new trial on the condition, accepted by plaintiff, that the latter remit a portion of the damages awarded him;[46] but not, on the other hand, to deny plaintiff a new trial on the converse condition, although defendant accepted it.[47] DIRECTED VERDICTS In 1913 the Court held, in Slocum _v._ New York Life Insurance Company,[48] that where upon the evidence a federal trial court, sitting in New York, ought to have directed a verdict for one party but the jury found for the other contrary to the evidence, the amendment rendered it improper for a federal appeals court to order, in accordance with New York practice, the entry of a judgment contrary to the verdict; that the only course open to either court was to order a new trial. While plainly in accordance with the common law as it stood in 1791, the decision was five-to-four and was subjected to a heavy fire of professional criticism urging the convenience of the thing and the theory of the capacity of the common law for growth.[49] It has, moreover, been impaired, if not completely undermined by certain more recent holdings. In the first of these,[50] in which the same Justice spoke for the Court as in the Slocum Case, it was held that a trial court had the right to enter a judgment on the verdict of the jury for the plaintiff after overruling a motion by defendant for dismissal on the ground of insufficient evidence. The Court owned that its ruling was out of line with some of its expressions in the Slocum Case.[51] In the second case[52] the Court sustained a United States district court in Arkansas, in an action between parties of diverse citizenship, in rejecting a motion by defendant for dismissal and peremptorily directing a verdict for the plaintiff. The Supreme Court held that there was ample evidence to support the verdict and that the trial court, in following Arkansas procedure, had acted consistently with the Federal Conformity Act.[53] In the third case,[54] which involved an action against the Government for benefits under a war risk insurance policy which had been allowed to lapse, the trial court directed a verdict for the Government on the ground of the insufficiency of the evidence and was sustained in so doing by both the circuit court of appeals and the Supreme Court. Three Justices, speaking by Justice Black, dissented in an opinion in which it is asserted that "today's decision marks a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment."[55] That the Court should experience occasional difficulty in harmonizing the idea of preserving the historic common law covering the relations of judge and jury with the notion of a developing common law is not surprising. WAIVER OF RIGHT OF TRIAL BY JURY Parties have a right to enter into a stipulation waiving a jury and submitting the case to the court upon an agreed statement of facts, even without any legislative provision for waiver.[56] "* * * Congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Revised Statutes sections 648, 649."[57] This statutory provision for a written stipulation, however, does not preclude other kinds of waivers.[58] But every reasonable presumption should be indulged against a waiver.[59] None is to be implied from a request for a directed verdict.[60] APPEALS FROM STATE COURTS TO THE SUPREME COURT The last clause of Amendment VII is not restricted in its application to suits at common law tried before juries in United States courts. It applies equally to a case tried before a jury in a State court and brought to the United States Supreme Court on appeal.[61] Notes [1] 2 Farrand, Records, 628. [2] _See_ Federal Conformity Act, 28 U.S.C.A. § 724. [3] 2 Story, Commentaries on the Constitution, § 1763. [4] Federalist, Nos. 81 and 83. [5] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Parsons _v._ Bedford, 3 Pet. 433, 446-448 (1830). [6] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13, 14 (1899). Here it was held that a civil trial before a justice of the peace in the District of Columbia, although by a jury of twelve men, was not a jury trial in the sense of Amendment VII. [7] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900). _See also_ American Publishing Co. _v._ Fisher, 166 U.S. 464 (1897); Springville _v._ Thomas, 166 U.S. 707 (1897); Andres _v._ United States, 333 U.S. 740, 748 (1948). [8] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Walker _v._ New Mexico, & S.P.R. Co., 165 U.S. 593, 596 (1897); Gasoline Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 497-499 (1931); Dimick _v._ Schiedt, 293 U.S. 474, 476, 485-486 (1935). [9] Gasoline Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 498 (1931); Ex parte Peterson, 253 U.S. 300, 309 (1920). [10] Pearson _v._ Yewdall, 95 U.S. 294, 296 (1877). _See also_ Edwards _v._ Elliott, 21 Wall. 532, 557 (1874); Justices of the Sup. Ct. _v._ United States ex rel. Murray, 9 Wall. 274, 277 (1870); Walker _v._ Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. _v._ Kansas City, 241 U.S. 419 (1916). [11] Webster _v._ Reid, 11 How. 437, 460 (1851); Kennon _v._ Gilmer, 131 U.S. 22, 28 (1889). [12] Capital Traction Co. _v._ Hof, 174 U.S. 1, 5 (1899). [13] Minneapolis & St. L.R. Co. _v._ Bombolis, 241 U.S. 211 (1916), which involved The Federal Employers Liability Act of 1908. The ruling is followed in four other cases in the same volume. _See_ ibid. 241, 261, 485 and 494. [14] Shields _v._ Thomas, 18 How. 253, 262 (1856). [15] Parsons _v._ Bedford, 3 Pet. 433, 447 (1830); Barton _v._ Barbour, 104 U.S. 126, 133 (1881). [16] Clark _v._ Wooster, 119 U.S. 322, 325 (1886); Pease _v._ Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917). [17] Parsons _v._ Bedford, above; Waring _v._ Clarke, 5 How. 441, 460 (1847). _See also_ The "Sarah," 8 Wheat. 390, 391 (1823), and cases there cited. [18] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 48 (1937). _See also_ Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 488 (1894); Yakus _v._ United States, 321 U.S. 414, 447 (1944). [19] McElrath _v._ United States, 102 U.S. 426, 440 (1880). _See also_ Galloway _v._ United States, 319 U.S. 372, 388 (1943). [20] Guthrie Nat. Bank _v._ Guthrie, 173 U.S. 528, 534 (1899). _See also_ United States _v._ Realty Co., 163 U.S. 427, 439 (1896); Jefferson City Gaslight Co. _v._ Clark, 95 U.S. 644, 653 (1877). [21] Luria _v._ United States, 231 U.S. 9, 27 (1913). [22] Gee Wah Lee _v._ United States, 25 F. (2d) 107 (1928); certiorari denied, 277 U.S. 608 (1928). [23] Filer & S. Co. _v._ Diamond Iron Works, 270 F. 489 (1921); certiorari denied, 256 U.S. 691 (1921). [24] Crowell _v._ Benson, 285 U.S. 22, 45 (1932). [25] In re Wood and Henderson, 210 U.S. 246 (1908). [26] Auffmordt _v._ Hedden, 137 U.S. 310, 329 (1890). [27] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 598 (1897). [28] Fidelity & D. Co. _v._ United States, 187 U.S. 315, 320 (1902). [29] Jensen _v._ Continental Life Ins. Co., 28 F. (2d) 545 (1928), certiorari denied, 279 U.S. 842 (1929). [30] Meeker _v._ Lehigh Valley R. Co., 236 U.S. 434, 439 (1915). [31] Ex parte Peterson, 253 U.S. 300 (1920). [32] United States _v._ Louisiana, 339 U.S. 699 (1950). [33] Scott _v._ Neely, 140 U.S. 106, 109 (1891). _See also_ Bennett _v._ Butterworth, 11 How. 669 (1850); Hipp _v._ Babin, 19 How. 271, 278 (1857); Lewis _v._ Cocks, 23 Wall. 466, 470 (1874); Killian _v._ Ebbinghaus, 110 U.S. 568, 573 (1884); Buzard _v._ Houston, 119 U.S. 347, 351 (1886). [34] Schoenthal _v._ Irving Trust Co., 287 U.S. 92, 94 (1932). [35] American Mills Co. _v._ American Surety Co., 260 U.S. 360, 364 (1922). _See also_ Stamey _v._ United States, 37 F. (2d) 188 (1929). [36] Thompson _v._ Central Ohio R. Co., 6 Wall. 134 (1868). [37] Whitehead _v._ Shattuck, 138 U.S. 146 (1891); Buzard _v._ Houston, 119 U.S. 347 (1886); Greeley _v._ Lowe, 155 U.S. 58, 75 (1894). [38] Clark _v._ Smith, 13 Pet. 195 (1839); Holland _v._ Challen, 110 U.S. 15 (1884); Reynolds _v._ Crawfordsville First Nat. Bank, 112 U.S. 405 (1884); Chapman _v._ Brewer, 114 U.S. 158 (1885); Cummings _v._ Merchants Nat. Bank, 101 U.S. 153, 157 (1880); United States _v._ Landram, 118 U.S. 81 (1886); More _v._ Steinbach, 127 U.S. 70 (1888). _Cf._ Re Simons, 247 U.S. 231 (1918). [39] Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924). [40] Vicksburg & M.R. Co. _v._ Putnam, 118 U.S. 545, 553 (1886); United States _v._ Reading Railroad, 123 U.S. 113, 114 (1887). [41] 118 U.S. 545; where are cited Carver _v._ Jackson ex dem. Astor et al., 4 Pet. 1, 80 (1830); Magniac _v._ Thompson, 7 Pet. 348, 390 (1833); Mitchell _v._ Harmony, 13 How. 115, 131 (1852); Transportation Line _v._ Hope, 95 U.S. 297, 302 (1877). [42] Games _v._ Dunn, 14 Pet. 322, 327 (1840). [43] Sparf _v._ United States, 156 U.S. 51, 99-100 (1895); Pleasants _v._ Fant, 22 Wall. 116, 121 (1875); Randall _v._ Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883); Meehan _v._ Valentine, 145 U.S. 611, 625 (1892); Coughran _v._ Bigelow, 164 U.S. 301 (1896). [44] Treat Mfg. Co. _v._ Standard Steel & Iron Co., 157 U.S. 674 (1895); Randall _v._ Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883) and cases there cited. [45] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899). [46] Arkansas Land & Cattle Co. _v._ Mann, 130 U.S. 69, 74 (1889). [47] Dimick _v._ Schiedt, 293 U.S. 474, 476-478 (1935). [48] 228 U.S. 364 (1913). [49] _See_ Austin Wakeman Scott, Fundamentals of Procedure in Actions at Law (1922), 103 and articles there cited. [50] Baltimore & C. Line _v._ Redman, 295 U.S. 654 (1935). [51] Ibid. 661. [52] Lyon _v._ Mutual Benefit Assn., 305 U.S. 484 (1939). [53] 28 U.S.C.A. § 724. [54] Galloway _v._ United States, 319 U.S. 372 (1943). [55] Ibid. 397. As a matter of fact, the case being a claim against the United States need not have been tried by a jury except for the allowance of Congress. [56] Henderson's Distilled Spirits, 14 Wall. 44, 53 (1872). _See also_ Rogers _v._ United States, 141 U.S. 548, 554 (1891); Parsons _v._ Armor, 3 Pet. 413 (1830); Campbell _v._ Boyreau, 21 How. 223 (1859). [57] Baylis _v._ Travelers' Ins. Co., 113 U.S. 316, 321 (1885), holding it error for a judge, in absence of any waiver, to find the facts and render judgment thereon. [58] Duignan _v._ United States, 274 U.S. 195, 198 (1927), holding jury trial waived by an appearance and participation in the trial without demanding a jury. [59] Hodges _v._ Easton, 106 U.S. 408, 412 (1883). [60] Aetna Insurance Co. _v._ Kennedy, 301 U.S. 389 (1937). [61] _See_ Justices of the Sup. Ct. _v._ United States ex rel. Murray, 9 Wall. 274 (1870); Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 242 (1897). AMENDMENT 8 BAIL, FINES, AND OTHER PUNISHMENT FOR CRIME Page Excessive bail 903 Excessive fines 904 Cruel and unusual punishments 904 PUNISHMENT FOR CRIME Amendment 8 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. When the Bill of Rights was being debated in Congress, two members took exception to this proposal. One "objected to the words 'nor cruel and unusual punishment,' the import of them being too indefinite."[1] Another leveled a similar criticism at the entire amendment; "What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."[2] Excessive Bail A United States District Court fixed the bail of twelve persons who were arrested on charge of conspiring to violate the Smith Act[3] at $50,000 each. This was on the theory advanced by the Government that each petitioner was a pawn in a conspiracy and in obedience to a superior would flee the jurisdiction, a theory to support which no evidence was introduced. The Court held that bail set before trial at a figure higher than reasonably calculated to assure the presence of defendant at his trial is "excessive" in the sense of the Eighth Amendment, and that the case of each defendant must be determined on its merits. Bail of larger amount than that usually fixed for serious crimes must be justified by evidence to the point.[4] But the power of the Attorney General, under § 23 of the Internal Security Act of 1950,[5] to hold in custody without bail, at his discretion, pending determination as to their deportability, aliens who are members of the Communist Party of the United States, is not unconstitutional.[6] Excessive Fines The Supreme Court has had little to say with reference to excessive fines or bail. In an early case it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fine was apparent on the face of the record.[7] In a dissenting opinion in United States ex rel. Milwaukee Publishing Co. _v._ Burleson,[8] Justice Brandeis intimated that the additional mailing costs incurred by a newspaper to which the second-class mailing privilege had been denied constituted, in effect, a fine for a past offense which, since it was made to grow indefinitely each day, was an unusual punishment interdicted by the Constitution.[9] Cruel and Unusual Punishments The ban against "cruel and unusual punishment" has received somewhat greater attention. In Wilkerson _v._ Utah[10] the Court observed that: "Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture, ... and all others in the same line of unnecessary cruelty, are forbidden by that Amendment to the Constitution."[11] Shooting as a mode of executing the death penalty was sustained over the objection that it was cruel and unusual. A partially successful effort has been made to enlarge the concept of unusual punishment to cover penalties which shock the sense of justice by their absolute or relative severity. Justice Field pointed the way for this development in his dissenting opinion in O'Neil _v._ Vermont,[12] wherein the majority refused to apply the Eighth Amendment to a State. With the concurrence of two other Justices he wrote that the amendment was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged."[13] Eighteen years later a divided Court condemned a Philippine statute prescribing fine and imprisonment of from twelve to twenty years for entry of a known false statement in a public record, on the ground that the gross disparity between this punishment and that imposed for other more serious fines made it cruel and unusual, and as such, repugnant to the Bill of Rights.[14] No constitutional infirmity was discovered in a measure punishing as a separate offense each act of placing a letter in the mails in pursuance of a single scheme to defraud.[15] Notes [1] 1 Annals of Congress 754 (1791). [2] Ibid. [3] 18 U.S.C. §§ 371, 2385. [4] Stack _v._ Boyle, 342 U.S. 1 (1951). [5] 8 U.S.C.A. § 156 (a) (1); 64 Stat. 1011. [6] Carlson _v._ Landon, 342 U.S. 524 (1952). [7] Ex parte Watkins, 7 Pet. 568, 574 (1833). [8] 255 U.S. 407 (1921). [9] Ibid. 435. [10] 99 U.S. 130 (1879). [11] Ibid. 135. [12] 144 U.S. 323 (1892). [13] Ibid. 339, 340. [14] Weems _v._ United States, 217 U.S. 349, 371, 382 (1910). [15] Badders _v._ United States, 240 U.S. 391 (1916). _Cf._ Donaldson _v._ Read Magazine, 333 U.S. 178, 191 (1948). AMENDMENT 9 RIGHTS RETAINED BY THE PEOPLE Amendment 9 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The only right which the Supreme Court has explicitly acknowledged as protected by this amendment is the right to engage in political activity. That recognition was accorded by way of _dictum_ in United Public Workers _v._ Mitchell, where the powers of Congress to restrict the political activities of federal employees was sustained.[1] An argument that the competition of the TVA in selling electricity at rates lower than those previously charged by private companies serving the area amounted to an indirect regulation of the rates of those companies and a destruction of the liberty said to be guaranteed by the Ninth Amendment to the people of the States to acquire property and employ it in a lawful business, was summarily rejected.[2] Previously the Court had upheld the right of the TVA to sell electricity, saying that the Ninth Amendment did not withdraw the right expressly granted by section 3 of article IV to dispose of property belonging to the United States.[3] Notes [1] 330 U.S. 75, 94 (1947). [2] Tennessee Electric Power Co. _v._ T.V.A., 306 U.S. 118, 143, 144 (1939). [3] Ashwander _v._ T.V.A., 297 U.S. 288, 330, 331 (1936). _See also_ the language of Justice Chase in Calder _v._ Bull, 3 Dall. 386, 388 (1798); and of Justice Miller for the Court in Loan Asso. _v._ Topeka, 20 Wall. 655, 662-663 (1874). AMENDMENT 10 RESERVED STATE POWERS Page Scope and purpose 915 The taxing power 916 The commerce power 917 Police power 918 State activities and instrumentalities 919 RESERVED STATE POWERS Amendment 10 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Scope and Purpose "The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified * * *."[1] That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was clearly indicated by its sponsor, James Madison, in the course of the debate which took place while the amendment was pending concerning Hamilton's proposal to establish a national bank. He declared that: "Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States."[2] Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate interstate commerce, to enforce the Fourteenth Amendment and to lay and collect taxes. The first, and logically the strongest, effort to set up the Tenth Amendment as a limitation on federal power was directed to the expansion of that power by virtue of the necessary and proper clause. In McCulloch _v._ Maryland,[3] the Attorney-General of Maryland cited the charges made by the enemies of the Constitution that it contained "* * * a vast variety of powers, lurking under the generality of its phraseology, which would prove highly dangerous to the liberties of the people, and the rights of the states, * * *" and he cited the adoption of the Tenth Amendment to allay these apprehensions, in support of his contention that the power to create corporations was reserved by that amendment to the States.[4] Stressing the fact that this amendment, unlike the cognate section of the Articles of Confederation, omitted the word "expressly" as a qualification of the powers granted to the National Government, Chief Justice Marshall declared that its effect was to leave the question "whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument."[5] The Taxing Power Not until after the Civil War was the idea that the reserved powers of the States comprise an independent qualification of otherwise constitutional acts of the Federal Government actually applied to nullify, in part, an act of Congress. This result was first reached in a tax case--Collector _v._ Day.[6] Holding that a national income tax, in itself valid, could not be constitutionally levied upon the official salaries of State officers, Justice Nelson made the sweeping statement that "* * * the States within the limits of their powers not granted, or, in the language of the Tenth Amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the States."[7] In 1939, Collector _v._ Day was expressly overruled.[8] Nevertheless, the problem of reconciling State and national interests still confronts the Court occasionally, and was elaborately considered in New York _v._ United States,[9] where, by a vote of six-to-two, the Court upheld the right of the United States to tax the sale of mineral waters taken from property owned by a State. Speaking for four members of the Court, Chief Justice Stone justified the tax on the ground that "The national taxing power would be unduly curtailed if the State, by extending its activities, could withdraw from it subjects of taxation traditionally within it."[10] Justices Frankfurter and Rutledge found in the Tenth Amendment "* * * no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter."[11] Justices Douglas and Black dissented, saying: "If the power of the federal government to tax the States is conceded, the reserved power of the States guaranteed by the Tenth Amendment does not give them the independence which they have always been assumed to have."[12] The Commerce Power A year before Collector _v._ Day was decided, the Court held invalid, except as applied in the District of Columbia and other areas over which Congress has exclusive authority, a federal statute penalizing the sale of dangerous illuminating oils.[13] The Court did not refer to the Tenth Amendment. Instead, it asserted that the "* * * express grant of power to regulate commerce among the States has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States; except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested."[14] Similarly, in the Employers' Liability Cases,[15] an act of Congress making every carrier engaged in interstate commerce liable to "any" employee, including those whose activities related solely to intrastate activities, for injuries caused by negligence, was held unconstitutional by a closely divided Court, without explicit reliance on the Tenth Amendment. Not until it was confronted with the Child Labor Law, which prohibited the transportation in interstate commerce of goods produced in establishments in which child labor was employed, did the Court hold that the State police power was an obstacle to adoption of a measure which operated directly and immediately upon interstate commerce. In Hammer _v._ Dagenhart,[16] five members of the Court found in the Tenth Amendment a mandate to nullify this law as an unwarranted invasion of the reserved powers of the States. This decision was expressly overruled in United States _v._ Darby.[17] During the twenty years following Hammer _v._ Dagenhart, a variety of measures designed to regulate economic activities, directly or indirectly, were held void on similar grounds. Excise taxes on the profits of factories in which child labor was employed,[18] on the sale of grain futures on markets which failed to comply with federal regulations,[19] on the sale of coal produced by nonmembers of a coal code established as a part of a federal regulatory scheme,[20] and a tax on the processing of agricultural products, the proceeds of which were paid to farmers who complied with production limitations imposed by the Federal Government,[21] were all found to invade the reserved powers of the States. In Schechter Poultry Corporation _v._ United States[22] the Court, after holding that the commerce power did not extend to local sales of poultry, cited the Tenth Amendment to refute the argument that the existence of an economic emergency justified the exercise of what Chief Justice Hughes called "extraconstitutional authority."[23] In 1941 the Court came full circle in its exposition of this amendment. Having returned to the position of John Marshall four years earlier when it sustained the Social Security[24] and National Labor Relations Acts,[25] it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States _v._ Darby.[26] Speaking for a unanimous Court, Chief Justice Stone wrote: "The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' * * * That power can neither be enlarged nor diminished by the exercise or non-exercise of state power. * * * It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. * * * Our conclusion is unaffected by the Tenth Amendment which * * * states but a truism that all is retained which has not been surrendered."[27] Police Power But even prior to 1937 not all measures taken to promote objectives which had traditionally been regarded as the responsibilities of the States had been held invalid. In Hamilton _v._ Kentucky Distilleries Co.,[28] a unanimous Court, speaking by Justice Brandeis, upheld "War Prohibition", saying: "That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power."[29] And in a series of cases, which today seem irreconcilable with Hammer _v._ Dagenhart, it sustained federal laws penalizing the interstate transportation of lottery tickets,[30] of women for immoral purposes,[31] of stolen automobiles,[32] and of tick-infested cattle.[33] It affirmed the power of Congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise,[34] to subject prison made goods moved from one State to another to the laws of the receiving State,[35] and to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the Eighteenth Amendment.[36] But while Congress might thus prevent the use of the channels of interstate commerce to frustrate State law, it could not itself, the Court held, undertake to punish a violation of that law by discriminatory taxation; and in United States _v._ Constantine,[37] a grossly disproportionate excise tax imposed on retail liquor dealers carrying on business in violation of local law was held unconstitutional. State Activities and Instrumentalities Today it is apparent that the Tenth Amendment does not shield the States nor their political subdivisions from the impact of the authority affirmatively granted to the Federal Government. It was cited to no avail in Case _v._ Bowles,[38] where a State officer was enjoined from selling timber on school lands at a price in excess of the maximum prescribed by the Office of Price Administration. When California violated the Federal Safety Appliance Act in the operation of the State Belt Railroad as a common carrier in interstate commerce it was held liable for the statutory penalty.[39] At the suit of the Attorney General of the United States, the Sanitary District of Chicago was enjoined from diverting water from Lake Michigan in excess of a specified rate. On behalf of a unanimous court, Justice Holmes wrote: "This is not a controversy among equals. The United States is asserting its sovereign power to regulate commerce and to control the navigable waters within its jurisdiction. * * * There is no question that this power is superior to that of the States to provide for the welfare or necessities of their inhabitants."[40] Some years earlier, in a suit brought by Kansas to prevent Colorado from using the waters of the Arkansas River for irrigation, the Attorney General of the United States had unsuccessfully advanced the claim that the Federal Government had an inherent legislative authority to deal with the matter. In a petition to intervene in the suit he had taken the position, as summarized by the Supreme Court, that "the National Government * * * has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters. * * * All legislative power must be vested in either the state or the National Government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States."[41] The petition to intervene was dismissed on the ground that the authority claimed for the Federal Government was incompatible with the Tenth Amendment; but this could hardly happen today.[42] Under its superior power of eminent domain, the United States may condemn land owned by a State even where the taking will interfere with the State's own project for water development and conservation.[43] The rights reserved to the States are not invaded by a statute which requires a reduction in the amount of a federal grant-in-aid of the construction of highways upon failure of a State to remove from office a member of the State Highway Commission found to have violated federal law by participating in a political campaign.[44] Federal legislation frequently has been challenged as an unconstitutional interference with the prerogative of the States to control the entities they create, but the attack has been successful only once, in Hopkins Federal Savings and Loan Association _v._ Cleary.[45] There an act of Congress authorizing the conversion of State building and loan associations without State consent was found to contravene the Tenth Amendment. Thirty years earlier, in Northern Securities Co. _v._ United States,[46] a closely divided Court had ruled that this amendment was no barrier to the application of the Sherman Antitrust Act to prevent one corporation from restraining commerce by means of stock ownership in two competing corporations. It announced the general proposition that: "No State can, by merely creating a corporation, or in any other mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Constitution over interstate and international commerce, or so as to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce. It cannot be said that any State may give a corporation, created under its laws, authority to restrain interstate or international commerce against the will of the nation as lawfully expressed by Congress. Every corporation created by a State is necessarily subject to the supreme law of the land."[47] Even a charter contract between a State and an intrastate railroad, limiting the rates of the latter, is no barrier to enforcement of an order of the Interstate Commerce Commission requiring an increase in local rates to remove a discrimination against interstate commerce.[48] An order of the Federal Power Commission prescribing the methods of keeping the accounts of an electric company was sustained over the objection that it violated the reserved right of the States under the Tenth Amendment.[49] A similar objection to the levy of a special surtax on any corporation formed or availed of to prevent the imposition of a surtax upon its shareholders was rejected, since the taxing statute did not limit in any way the power of the corporations to declare or withhold dividends as permitted by State law.[50] Likewise, the Court held that the failure to allow a credit against the undistributed profits tax for earnings which could not be distributed under State law did not infringe the reserved power of the State over its corporate offspring.[51] Notes [1] United States _v._ Sprague, 282 U.S. 716, 733 (1931). [2] II Annals of Congress 1897 (1791). [3] 4 Wheat. 316 (1819). [4] Ibid. 372. [5] Ibid. 406. [6] 11 Wall. 113 (1871). [7] Ibid. 124. [8] Graves _v._ O'Keefe, 306 U.S. 466 (1939). [9] 326 U.S. 572 (1946). [10] Ibid. 589. [11] Ibid. 584. [12] Ibid. 595. [13] United States _v._ Dewitt, 9 Wall. 41 (1870). [14] Ibid. 44. [15] 207 U.S. 463 (1908). _See also_ Keller _v._ United States, 213 U.S. 138 (1909). [16] 247 U.S. 251 (1918). [17] 312 U.S. 100, 116, 117 (1941). [18] Bailey _v._ Drexel Furniture Co., 259 U.S. 20, 36, 38 (1922). [19] Hill _v._ Wallace, 259 U.S. 44 (1922). _See also_ Trusler _v._ Crooks, 269 U.S. 475 (1926). [20] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936). [21] United States _v._ Butler, 297 U.S. 1 (1936). [22] 295 U.S. 495 (1935). [23] Ibid. 529. [24] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ Davis, 301 U.S. 619 (1937). [25] National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). [26] 312 U.S. 100 (1941). _See also_ United States _v._ Carolene Products Co., 304 U.S. 144, 147 (1938); Case _v._ Bowles, 327 U.S. 92, 101 (1946). [27] 312 U.S. 100, 114, 123, 124 (1941). _See also_ Fernandez _v._ Wiener, 326 U.S. 340, 362 (1945). [28] 251 U.S. 146 (1919). [29] Ibid. 156. [30] Champion _v._ Ames, 188 U.S. 321 (1903). [31] Hoke _v._ United States, 227 U.S. 308 (1913). [32] Brooks _v._ United States, 267 U.S. 432 (1925). [33] Thornton _v._ United States, 271 U.S. 414 (1926). [34] United States _v._ Ferger, 250 U.S. 199 (1919). [35] Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937). [36] Everhard's Breweries _v._ Day, 265 U.S. 545 (1924). [37] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments, and hence to be an unlawful invasion of the powers reserved to the States by the Tenth--Civil Rights Cases, 109 U.S. 3, 15 (1883). [38] 327 U.S. 92, 102 (1946). [39] United States _v._ California, 297 U.S. 175 (1936). [40] Sanitary District of Chicago _v._ United States, 266 U.S. 405, 425, 426 (1925). [41] Kansas _v._ Colorado, 206 U.S. 46, 87, 89 (1907). [42] _See_ United States _v._ Appalachian Electric Power Co., 311 U.S. 377 (1940). [43] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941). [44] Oklahoma _v._ United States Civil Service Commission, 330 U.S. 127, 142-144 (1947). [45] 296 U.S. 315 (1935). [46] 193 U.S. 197 (1904). [47] Ibid. 345, 346. [48] New York _v._ United States, 257 U.S. 591 (1922). [49] Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S. 119 (1944). _See also_ Federal Power Commission _v._ East Ohio Gas Company, 338 U.S. 404 (1950). [50] Helvering _v._ National Grocery Co., 304 U.S. 282 (1938). [51] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940). AMENDMENT 11 SUITS AGAINST STATES Page Purpose and early interpretation 929 Expansion of state immunity 930 Suits against state officials: two categories 930 Mandamus proceedings 932 Early limitation on injunction proceedings 932 Injunction proceedings today: Ex parte Young 933 Tort action against state officials 934 Suits to recover taxes 935 Consent of State to be sued 935 Waiver of immunity 936 SUITS AGAINST STATES Amendment 11 The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Purpose and Early Interpretation The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793, in Chisholm _v._ Georgia[1] provoked such angry reactions in Georgia and such anxieties in other States that at the first meeting of Congress after this decision what became the Eleventh Amendment was proposed by an overwhelming vote and ratified with "vehement speed."[2] The earliest decisions interpretative of the amendment were three by Chief Justice Marshall. In Cohens _v._ Virginia,[3] speaking for the Court, he held that the prosecution of a writ of error to review a judgment of a State court, alleged to be in violation of the Constitution or laws of the United States, "does not commence or prosecute a suit against the State," but continues one commenced by the State. The contrary holding would have virtually repealed the 25th Section of the Judiciary Act of 1789 (_see_ p. 554), and brought something like anarchy in its wake. In Osborn _v._ Bank of the United States,[4] decided three years later, the Court laid down two rules, one of which has survived and the other of which was soon abandoned. The latter was the holding that a suit is not one against a State unless the State is a party to the record.[5] This rule the Court was forced to repudiate seven years later in Governor of Georgia _v._ Madrazo,[6] in which it was conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. It is now a well-settled rule that in determining whether a suit is prosecuted against a State "the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit."[7] The other, more successful rule was that a State official possesses no official capacity when acting illegally and hence can derive no protection from an unconstitutional statute of a State.[8] Expansion of State Immunity Subsequent cases giving the amendment a restrictive effect are those holding that counties and municipalities are suable in the federal courts;[9] and that government corporations of the State are not immune when suable under the law which created them.[10] Meantime other cases have expanded the prohibitions of the amendment to include suits brought against a State by its own citizens,[11] by a foreign state,[12] by a federally chartered corporation,[13] or by a State as an agent of its citizens to collect debts owed them by another State.[14] These rulings are based on the premise expressed in Hans _v._ Louisiana[15] that the amendment "actually reversed the decision" in Chisholm _v._ Georgia and, as Chief Justice Hughes indicated in Monaco _v._ Mississippi,[16] had the effect of prohibiting any suit against a State without its consent except when brought by the United States[17] or another State. Suits Against State Officials: Two Categories Most of the cases involving the Eleventh Amendment and those creating the greatest difficulties are suits brought against State officials. Such suits are governed by the same rules and principles as pertain to the immunity of the United States itself from suits,[18] with the result that the rules of governmental immunity from suit generally are grounded on decisions arising under both article III and the Eleventh Amendment without distinction as to whether a suit is against the United States or a State.[19] The line is not always easy to draw, nor are the cases always strictly consistent. They do yield, however, to the formulation of certain general rules. Thus, suits brought against State officials acting either in excess of their statutory authority[20] or in pursuance of an unconstitutional statute[21] are suits against the officer in his individual capacity and therefore are not prohibited by the Eleventh Amendment; and suits against an officer for the commission of a common law tort alleged to be justified by a statute or administrative order of the State belong to the same category.[22] On the other hand, suits against the officers of a State involving what is conceded to be State property or suits asking for relief which clearly call for the exercise of official authority cannot be sustained.[23] Mandamus Proceedings Thus mandamus proceedings which seek "affirmative official action" on the part of State officials as "the performance of an obligation which belongs to the State in its political capacity"[24] are uniformly regarded as suits against the State. This rule is well illustrated by Louisiana ex rel. Elliott _v._ Jumel[25] where a holder of Louisiana State bonds sought to compel the State treasurer to apply a sinking fund that had been created under an earlier constitution for the payment of the bonds to such purpose after a new constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the State because: "The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done."[26] However, mandamus proceedings to compel a State official to perform a plain or ministerial duty which admits of no discretion are not suits against the State since the official is regarded as acting in his individual capacity in failing to act according to law.[27] Early Limitation on Injunction Proceedings In spite of a dictum by Justice Bradley in the McComb Case that the writs of mandamus and injunction are somewhat correlative to each other in suits against State officials for illegal actions,[28] injunctions against State officials to restrain the enforcement of an unconstitutional statute or action in excess of statutory authority are more readily obtainable. They constitute in fact the single largest class of cases involving the issue of State immunity. Until Reagan _v._ Farmers' Loan and Trust Company[29] the Court maintained a distinction between the duty imposed upon an official by the general laws of the State and the duty imposed by a specific unconstitutional statute and held that whereas an injunction would not lie to restrain a State official from enforcing an act alleged to be unconstitutional in pursuance of the general duties of his office, it would lie to restrain him from performing special duties vested in him by an unconstitutional statute.[30] The leading cases assertive of this distinction are Ex parte Ayers and Fitts _v._ McGhee, decided respectively in 1887 and 1899.[31] Injunction Proceedings Today: Ex parte Young However, the distinction between injunction suits to restrain an official from pursuing his general duties under the law and those to restrain the performance of special duties under an unconstitutional statute had been largely lost even before Fitts _v._ McGhee, in Reagan _v._ Farmers' Loan and Trust Company[32] and Smyth _v._ Ames,[33] where injunctions issued by the lower federal courts to restrain the enforcement of railroad rate regulations were sustained even though the officials against whom the suits were brought were acting under general law. What remained of the distinction as a limitation upon suits against State officials was dispelled by Ex parte Young,[34] which not only sustained an injunction restraining State officials from exercising their discretionary duties but also upheld the authority of the lower court to enjoin the enforcement of the statute prior to a determination of its unconstitutionality. While Ex parte Ayers and Fitts _v._ McGhee[35] were not overruled, the inevitable effect of the Young Case was to abrogate the rule that a suit in equity against a State official to enjoin discretionary action is a suit against the State, and to convert the injunction into a device to test the validity of State legislation in the federal courts prior to its interpretation in the State courts and prior to any opportunity for State officials to put the act into operation.[36] But the earlier rule still crops up at times. Thus as recently as 1937, Ex parte Ayers[37] was applied to the interpretation of the Federal Interpleader Act,[38] so as to prevent taxpayers from enjoining tax officials from collecting death taxes arising from the competing claims of two States as being the last domicile of a decedent.[39] On the other hand, the Eleventh Amendment was held not to be infringed by joinder of a State court judge and receiver in an interpleader proceeding in which the State had no interest and neither the judge nor the receiver was enjoined by the final decree.[40] Tort Actions Against State Officials In tort actions against State officials the rule of United States _v._ Lee[41] has been substantially incorporated into the Eleventh Amendment. In Tindal _v._ Wesley[42] the Lee Case was held to permit a suit by claimants to real property in South Carolina which they had purchased from the State sinking fund commission but which had been retaken by the State because the purchaser insisted on paying for the property with revenue bond scrip issued by the State. In other cases the Court had held that the immunity of a State from suit does not extend to actions against State officials for damages arising out of willful and negligent disregard of State laws.[43] Suits to Recover Taxes Recent decisions, however, have rendered suits against State officials to recover taxes increasingly difficult to maintain. Although the Court long ago held that the sovereign immunity of the State prevented a suit to recover money in the general treasury,[44] it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.[45] Beginning, however, with Great Northern Life Insurance Co. _v._ Read[46] in 1944 the Court has held that this kind of suit cannot be maintained unless the State expressly consents to suits in the federal courts. In this case the State statute provided for the payment of taxes under protest and for suits afterwards against State tax collection officials for the recovery of taxes illegally collected. The act also provided for the segregation by the collector of taxes paid under protest. The Read Case has been followed in two more recent cases[47] involving a similar state of facts, with the result that the rule once permitting such suits to recover taxes from a segregated fund has been distinguished away. Consent of State to be Sued Although _dicta_ in some cases suggested that once a State consented generally to be sued in a court of competent jurisdiction,[48] suits could be maintained against it in the federal courts, later decisions involving statutory provisions for the payment of taxes under protest followed by a suit in a court of competent jurisdiction to recover do not authorize suits in the federal courts. These rulings are based on the assumption that when the court is dealing "with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the State's intention to submit its fiscal problems to other courts than those of its own creation must be found."[49] Long before these decisions it had been settled that a State could confine to its own courts suits against it to recover taxes.[50] Thus the questions involved in the cases laying down the above rule concerned only the lack of an express consent to suit in the federal courts. Waiver of Immunity The immunity of a State from suit is a privilege which it may waive at pleasure by voluntary submission to suit,[51] as distinguished from appearing in a similar suit to defend its officials,[52] and by general law specifically consenting to suit in the federal courts. Such consent must be clear and specific and consent to suit in its own courts does not imply a waiver of immunity in the federal courts.[53] It follows, therefore, that in consenting to be sued, the States, like the National Government, may attach such conditions to suit as they deem fit. Notes [1] 2 Dall. 419 (1793). [2] Justice Frankfurter dissenting in Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 708 (1949). [3] 6 Wheat. 264, 411-412 (1821). [4] 9 Wheat. 738 (1824). [5] Ibid. 850-858. [6] 1 Pet. 110 (1828). [7] Ex parte Ayers, 123 U.S. 443, 487 (1887). [8] Osborn _v._ Bank of the United States, 9 Wheat. at 858, 859, 868. [9] Lincoln County _v._ Luning, 133 U.S. 529 (1890). [10] Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911). _See also_ Bank of the United States _v._ Planters' Bank of Georgia, 9 Wheat. 904 (1824), where a State bank was held liable to suit although the State owned a portion of its stock, and Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837), and Bank of Kentucky _v._ Wister, 2 Pet. 318 (1829), where the State bank was held liable to suit even though the State owned all of the stock. Compare, however, Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909), which held that a State in engaging in the retail liquor business does not surrender its immunity to suit for transaction of a nongovernmental nature. Here the State conducted the business directly rather than through the medium of a corporation. [11] Hans _v._ Louisiana, 134 U.S. 1 (1890); Fitts _v._ McGhee, 172 U.S. 516, 524 (1899); Duhne _v._ New Jersey, 251 U.S. 311, 313 (1920); Ex parte New York, 256 U.S. 490 (1921). [12] Monaco _v._ Mississippi, 292 U.S. 313, 329 (1934). [13] Smith _v._ Reeves, 178 U.S. 436 (1900). [14] New Hampshire _v._ Louisiana, 108 U.S. 76 (1883). However, this rule does not preclude a suit by a State to collect debts which have been assigned to it and the proceeds of which will remain with it. South Dakota _v._ North Carolina, 192 U.S. 286 (1904) [15] 134 U.S. 1, 11 (1890). [16] 292 U.S. 313, 328-332 (1934). [17] For the liability of the States to suit by the United States _see_ the discussion of the right of the United States to sue under article III, § 2, _supra_, pp. 584-585. [18] Tindal _v._ Wesley, 167 U.S. 204, 213 (1897). This case applied the rule of United States _v._ Lee, 106 U.S. 196 (1882), to suits against States. [19] _See_ for example Larson _v._ Domestic & Foreign Corp., 337 U.S. 682 (1949), where both the majority and dissenting opinions utilize both types of cases in a suit against a federal official. [20] Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); Scully _v._ Bird, 209 U.S. 481 (1908); Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S. 280 (1912); Greene _v._ Louisville & I.R. Co., 244 U.S. 499 (1917); Louisville & Nashville R. Co. _v._ Greene, 244 U.S. 522 (1917). [21] Osborn _v._ Bank of the United States, 9 Wheat. 728 (1824); Board of Liquidation _v._ McComb, 92 U.S. 531 (1876); Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894); Smyth _v._ Ames, 169 U.S. 466 (1898); Ex parte Young, 209 U.S. 123 (1908); Truax _v._ Raich, 239 U.S. 33 (1915); Public Service Co. _v._ Corboy, 250 U.S. 153 (1919); Sterling _v._ Constantin, 287 U.S. 378 (1932); Davis _v._ Gray, 16 Wall. 203 (1873); Tomlinson _v._ Branch, 15 Wall. 460 (1873); Litchfield _v._ Webster Co., 101 U.S. 773 (1880); Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885); Gunter _v._ Atlantic C.L.R. Co., 200 U.S. 273 (1906); Prout _v._ Starr, 188 U.S. 537 (1903); Scott _v._ Donald, 165 U.S. 58; _also_ 165 U.S. 107 (1897). [22] South Carolina _v._ Wesley, 155 U.S. 542 (1895); Tindal _v._ Wesley, 167 U.S. 204 (1897); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911). In this last case the Court held that a suit would lie against the State Agricultural College, and relief could be granted to the extent that it would not affect the property rights of the State. These cases involve such matters as the seizure and distraint of property, wrongs done by government corporations, etc. [23] _See_ for example Governor of Georgia _v._ Madrazo, 1 Pet. 110 (1828); Cunningham _v._ Macon and Brunswick R. Co., 109 U.S. 446 (1883); Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711 (1883); Hagood _v._ Southern, 117 U.S. 52 (1886); Chandler _v._ Dix, 194 U.S. 590 (1904); Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911); Lankford _v._ Platte Iron Works, 235 U.S. 461 (1915); Carolina Glass Co. _v._ South Carolina, 240 U.S. 305 (1916); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946). [24] Hagood _v._ Southern, 117 U.S. 52, 70 (1886). _See also_ Pennoyer _v._ McConnaughy, 140 U.S. 1, 10 (1891) where Justice Lamar also emphasizes the operation of the judgment against the State itself. [25] 107 U.S. 711, 721 (1883). _See also_ Christian _v._ Atlantic & N.C.R. Co., 133 U.S. 233 (1890). [26] Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711, 721 (1883). [27] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876). This was a case involving an injunction, but Justice Bradley regarded mandamus and injunction as correlative to each other in cases where the official unlawfully commits or omits an act. _See also_ Rolston _v._ Missouri Fund Commissioners, 120 U.S. 390, 411 (1887), where it is held that an injunction would lie to restrain the sale of a railroad on the ground that a suit to compel a State official to do what the law requires of him is not a suit against the State. _See also_ Houston _v._ Ormes, 252 U.S. 469 (1920). [28] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876). [29] 154 U.S. 362 (1894). [30] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); In re Tyler, 149 U.S. 164 (1893). As stated by Justice Harlan in Fitts _v._ McGhee, 172 U.S. 516, 529-530 (1899), "There is a wide difference between a suit against individuals, holding official positions under a State, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State." _See also_ North Carolina _v._ Temple, 134 U.S. 22 (1890). [31] _See_ 123 U.S. 443; and 172 U.S. 516. [32] 154 U.S. 362 (1894). [33] 169 U.S. 466 (1898). [34] 209 U.S. 123 (1908). [35] 123 U.S. 443 (1887); 172 U.S. 516 (1899). [36] For cases following Ex parte Young, _see_ Home Telephone & Telegraph Co. _v._ Los Angeles, 227 U.S. 278 (1913); Truax _v._ Raich, 239 U.S. 33 (1915); Cavanaugh _v._ Looney, 248 U.S. 453 (1919); Terrace _v._ Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. _v._ Sherman, 266 U.S. 497 (1925); Massachusetts State Grange _v._ Benton, 272 U.S. 525 (1926); Hawks _v._ Hamill, 288 U.S. 52 (1933). These last cases, however, emphasize "manifest oppression" as a prerequisite to issuance of such injunctions. _See also_ Fenner _v._ Boykin, 271 U.S. 240 (1926), where an injunction to restrain the enforcement of a State law penalizing gambling contracts was denied. The rule of Ex parte Young applies equally to the governor of a State in the enforcement of an unconstitutional statute. Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932); Sterling _v._ Constantin, 287 U.S. 378 (1932). Joseph D. Block, "Suit Against Government Officers and the Sovereign Immunity Doctrine," 59 Harv. L. Rev. 1060, 1078 (1946), points out that Ex parte Young is enunciating the doctrine that an official proceeding unconstitutionally is "stripped of his official ... character" has given impetus to the fiction that the suit must be against the officer as an individual to be permissible under the Eleventh Amendment. Two recent cases in which Ex parte Young was followed are Alabama Comm'n _v._ Southern R. Co., 341 U.S. 341, 344 (1951); and Georgia R. _v._ Redwine, 342 U.S. 299, 304-305 (1952). [37] 123 U.S. 443 (1887). _See also_ Larson _v._ Domestic and Foreign Corp., 337 U.S. 682, 687-688 (1949). [38] 49 Stat. 1096 (1936). [39] Worcester County Trust Co. _v._ Riley, 302 U.S. 292 (1937); _see also_ Old Colony Trust Co. _v._ Seattle, 271 U.S. 426 (1926). [40] Treinies _v._ Sunshine Mining Co., 308 U.S. 66 (1939). _See also_ Missouri _v._ Fiske, 290 U.S. 18 (1933). [41] 106 U.S. 196 (1882). [42] 167 U.S. 204 (1897). [43] Johnson _v._ Lankford, 245 U.S. 541 (1918); Martin _v._ Lankford, 245 U.S. 547 (1918). [44] Smith _v._ Reeves, 178 U.S. 436 (1900). [45] Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S. 280 (1912). [46] 322 U.S. 47 (1944). [47] Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946). [48] Lincoln County _v._ Luning, 133 U.S. 529 (1890); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911). [49] Great Northern Ins. Co. _v._ Read, 322 U.S. 47, 54 (1944); Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946). [50] Smith _v._ Reeves, 178 U.S. 436 (1900). _See also_ Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909); Chandler _v._ Dix, 194 U.S. 590 (1904). [51] Clark _v._ Barnard, 108 U.S. 436, 447 (1883); Ashton _v._ Cameron County Water Improvement Dist., 298 U.S. 513, 531 (1936). [52] Farish _v._ State Banking Board, 235 U.S. 498 (1915); Missouri _v._ Fiske, 290 U.S. 18 (1933). [53] Murray _v._ Wilson Distilling Co., 213 U.S. 151, 172 (1909), citing Smith _v._ Reeves, 178 U.S. 436 (1900); Chandler _v._ Dix, 194 U.S. 590 (1904). _See also_ Graves _v._ Texas Co., 298 U.S. 393, 403-404 (1936). AMENDMENT 12 ELECTION OF PRESIDENT Page Purpose and operation of the amendment 942 Electors as free agents 942 ELECTION OF PRESIDENT Amendment 12 The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March[1] next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.[2]--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. Purpose and Operation of the Amendment This amendment, which supersedes clause 3 of section 1 of article II, of the original Constitution, was inserted on account of the tie between Jefferson and Burr in the election of 1800. The difference between the procedure which it defines and that which was laid down in the original Constitution is in the provision it makes for a separate designation by the Electors of their choices for President and Vice President, respectively. The final sentence of clause 1, above, has been in turn superseded today by Amendment XX. In consequence of the disputed election of 1876, Congress, by an act passed in 1887, has laid down the rule that if the vote of a State is not certified by the governor under the seal thereof, it shall not be counted unless both Houses of Congress are favorable.[3] It should be noted that no provision is made by this Amendment for the situation which would result from a failure to choose either a President or Vice President, an inadequacy which Amendment XX undertakes to cure. Electors as Free Agents Acting under the authority of state law, the Democratic Committee of Alabama adopted a rule requiring that a party candidate for the office of Presidential Elector take a pledge to support the nominees of the party's National Convention for President and Vice President and that the party's officers refuse to certify as a candidate for such office any person who, otherwise qualified, refused to take such a pledge. One Blair did so refuse and was upheld, in mandamus proceedings, by the State Supreme Court, which ordered the Chairman of the State Democratic Executive Committee to certify him to the Secretary of State as a candidate for the office of Presidential Elector in the Democratic Primary to be held on May 6, 1952. The Supreme Court at Washington granted certiorari and reversed this holding.[4] The constitutional issue arose out of the Alabama Court's findings that the required pledge was incompatible with the Twelfth Amendment, which contemplated that Electors, once appointed, should be absolutely free to vote for any person who was constitutionally eligible to the office of President or Vice President.[5] This position the Supreme Court combatted as follows: "It is true that the Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that in the early elections candidates for electors--contemporaries of the Founders--would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice. Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary. However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary. Ala. Code, Tit. 17, § 145. Even though the victory of an independent candidate for elector in Alabama cannot be anticipated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice. We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge."[6] Justice Jackson conceding that "as an institution the Electoral College suffered atrophy almost indistinguishable from _rigor mortis_," nevertheless dissented on the following ground: "It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as 'due process of law,' 'equal protection,' or 'commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions."[7] Notes [1] By the Twentieth Amendment, adopted in 1933, the term of the President is to begin on the 20th of January. [2] Under the Twentieth Amendment, § 3, in case a President is not chosen before the time for beginning of his term, the Vice President-elect shall act as President, until a President shall have qualified. [3] 3 U.S.C.A. § 17. [4] Ray _v._ Blair, 343 U.S. 214 (1952). [5] Ibid. 218-219. [6] Ibid. 228-231. [7] Ibid. 232-233. AMENDMENT 13 SLAVERY AND INVOLUNTARY SERVITUDE Page Origin and purpose of the amendment 949 Peonage 950 Discriminations and legal compulsions less than servitude 951 Enforcement 953 SLAVERY AND INVOLUNTARY SERVITUDE Amendment 13 Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. Origin and Purpose of the Amendment "The language of the Thirteenth Amendment," which "reproduced the historic words of the ordinance of 1787 for the government of the Northwest Territory, and gave them unrestricted application within the United States,"[1] was first construed in the Slaughter-House Cases.[2] Presented there with the contention that a Louisiana statute, by conferring upon a single corporation the exclusive privilege of slaughtering cattle in New Orleans, had imposed an unconstitutional servitude on the property of other butchers disadvantaged thereby, the Court expressed its inability, even after "a microscopic search," to find in said amendment any "reference to servitudes, which may have been attached to property in certain localities * * *." On the contrary, the term "servitude" appearing therein was declared to mean "a personal servitude * * * [as proven] by the use of the word 'involuntary,' which can only apply to human beings. * * * The word servitude is of larger meaning than slavery, * * *, and the obvious purpose was to forbid all shades and conditions of African slavery." But while the Court was initially in doubt as to whether persons other than negroes could share in the protection afforded by this amendment, it nevertheless conceded that although "* * * negro slavery alone was in the mind of the Congress which proposed the thirteenth article, [the latter] forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void."[3] All uncertainty on this score was dispelled in later decisions; and in Hodges _v._ United States[4] the Justices proclaimed unequivocally that the Thirteenth Amendment is "not a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof. Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much within its compass as slavery or involuntary servitude of the African."[5] Peonage Notwithstanding its early acknowledgment in the Slaughter-House Cases that peonage was comprehended within the slavery and involuntary servitude proscribed by the Thirteenth Amendment,[6] the Court has had frequent occasion to determine whether State legislation or the conduct of individuals has contributed to reestablishment of that prohibited status. Defined as a condition of enforced servitude by which the servitor is compelled to labor in liquidation of some debt or obligation, either real or pretended, against his will, peonage was found to have been unconstitutionally sanctioned by an Alabama statute, directed at defaulting sharecroppers, which imposed a criminal liability and subjected to imprisonment farm workers or tenants who abandoned their employment, breached their contracts, and exercised their legal right to enter into employment of a similar nature with another person. The clear purpose of such a statute was declared to be the coercion of payment, by means of criminal proceedings, of a purely civil liability arising from breach of contract.[7] Several years later, in Bailey _v._ Alabama,[8] the Court voided another Alabama statute which made the refusal without just cause to perform the labor called for in a written contract of employment, or to refund the money or pay for the property advanced thereunder, _prima facie_ evidence of an intent to defraud and punishable as a criminal offense; and which was enforced subject to a local rule of evidence which prevented the accused, for the purpose of rebutting the statutory presumption, from testifying as to his "uncommunicated motives, purpose, or intention." Inasmuch as a State "may not compel one man to labor for another in payment of a debt by punishing him as a criminal if he does not perform the service or pay the debt," the Court refused to permit it "to accomplish the same result [indirectly] by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction."[9] In 1914, in United States _v._ Reynolds,[10] a third Alabama enactment was condemned as conducive to peonage through the permission it accorded to persons, fined upon conviction for a misdemeanor, to confess judgment with a surety in the amount of the fine and costs, and then to agree with said surety, in consideration of the latter's payment of the confessed judgment, to reimburse him by working for him upon terms approved by the court, which, the Court pointed out, might prove more onerous than if the convict had been sentenced to imprisonment at hard labor in the first place. Fulfillment of such a contract with the surety was viewed as being virtually coerced by the constant fear it induced of rearrest, a new prosecution, and a new fine for breach of contract, which new penalty the convicted person might undertake to liquidate in a similar manner attended by similar consequences. More recently, Bailey _v._ Alabama has been followed in Taylor _v._ Georgia[11] and Pollock _v._ Williams,[12] in which statutes of Georgia and Florida not materially different from that voided in the Bailey Case, were found to be unconstitutional. Although the Georgia statute prohibited the defendant from testifying under oath, it did not prevent him from entering an unsworn denial both of the contract and of the receipt of any cash advancement thereunder, a factor which, the Court emphasized, was no more controlling than the customary rule of evidence in the Bailey Case. In the Florida Case, notwithstanding the fact that the defendant pleaded guilty and accordingly obviated the necessity of applying the _prima facie_ presumption provision, the Court reached an identical result, chiefly on the ground that the presumption provision, despite its nonapplication, "had a coercive effect in producing the plea of guilty." Discriminations and Legal Compulsions Less Than Servitude A contention of "involuntary servitude" was rejected in the following cases: (1) Racial discrimination. Denial of admission to public places, such as inns, restaurants, or theaters, or the segregation of races in public conveyances, etc., was held not to give rise to a "condition of enforced compulsory service of one to another," and effected no deprivation of one's legal right to dispose of his person, property, and services. Even prior to the amendment, such discriminations had never been "regarded as badges of slavery"; and it was not "the intent of the amendment to denounce every act which was wrong if done to a free man and yet justified in a condition of slavery."[13] Likewise, individuals who conspired to prevent citizens of African descent, because of their race or color, from making or carrying out contracts of labor, and so from pursuing a common calling, were not deemed to have reduced negroes to a condition of involuntary servitude; and hence a federal statute which penalized such a conspiracy was declared to be in excess of the enforcement powers vested in Congress by the Thirteenth Amendment.[14] (2) "Services which have from time immemorial been treated as exceptional." Thus, contracts of seamen, which have from earliest historical times been treated as exceptional, and involving, to a certain extent, the surrender of personal liberty may be enforced without regard to the amendment.[15] (3) "Enforcement of those duties which individuals owe the State, such as services in the army, militia, on the jury, etc." Thus, "a State has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation."[16] Similarly, the exaction by Congress of enforced military duty from citizens of the United States, as was done by the Selective Service Act of May 18, 1917 (40 Stat. 76); and the requirement, under the Selective Training and Service Act of 1940 (50 U.S.C.A. App. § 305 (g)), that conscientious objectors be assigned to work of national importance under civilian direction, were held not to contravene the Thirteenth Amendment.[17] (4) A State law which made it a misdemeanor for a lessor, or his agent or janitor, intentionally to fail to furnish such water, heat, light, elevator, telephone, or other service as may be required by the terms of the lease and necessary to the proper and customary use of the building, did not create an involuntary servitude.[18] (5) Section 506 (a) of the Communications Act (47 U.S.C.A. § 506) making it unlawful to coerce, compel, or constrain a licensee to employ persons in excess of the number of the employees needed by the licensee in the conduct of a radio broadcasting business, on its face, was construed as not violating this amendment.[19] Enforcement "* * * this amendment, besides abolishing forever slavery and involuntary servitude * * *, gives power to Congress to protect all persons within the jurisdiction of the United States from being in any way subject to slavery or involuntary servitude, except as a punishment for crime, and in the enjoyment of that freedom which it was the object of the amendment to secure. * * *"[20] It "is undoubtedly self-executing without any ancillary legislation, * * * [but] legislation may be necessary and proper to meet all the various * * * circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit." This legislation, moreover, "may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; [whereas] under the Fourteenth [Amendment], * * * it * * * can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings."[21] Pursuant to its powers of enforcement under section two of this amendment, Congress on March 2, 1867 enacted a statute[22] by the terms of which the system of peonage was abolished and prohibited and penalties were imposed on anyone who holds, arrests, or returns, or causes, or aids in the arrest or return of a person to peonage. The validity of this act was sustained in Clyatt _v._ United States;[23] and more recently, in United States _v._ Gaskin,[24] a proviso thereof was construed as capable of supporting a conviction for arrest with intent to compel performance of labor even though the debtor in fact rendered no service after his arrest. Each of the acts enumerated in that proviso, the "holding, arresting, or the returning, may be the subject of indictment and punishment." Notes [1] Bailey _v._ Alabama, 219 U.S. 219, 240 (1911). [2] 16 Wall. 36 (1873). [3] Ibid. 69, 71-72. [4] 203 U.S. 1 (1906). [5] Ibid. 16-17. [6] Pursuant to its enforcement powers under section 2 of this amendment, Congress, on March 2, 1867 adopted a statute (14 Stat. 546), which is now found in 8 U.S.C.A. § 56 and 18 U.S.C.A. § 1581, by the terms of which peonage was prohibited, and persons returning any one to a condition of peonage were subjected to criminal punishment. This statute was upheld in Clyatt _v._ United States, 197 U.S. 207 (1905). [7] Peonage Cases, 123 F. 671 (1903). [8] 219 U.S. 219 (1911). Justice Holmes, who was joined by Justice Lurton, dissented on the ground that a State was not forbidden by this amendment from punishing a breach of contract as a crime. "Compulsory work for no private master in a jail is not peonage."--Ibid. 247. [9] Ibid. 244. [10] 235 U.S. 133 (1914). [11] 315 U.S. 25 (1942). [12] 322 U.S. 4 (1944). Justice Reed, with Chief Justice Stone concurring, contended in a dissenting opinion that a State is not prohibited by the Thirteenth Amendment from "punishing the fraudulent procurement of an advance in wages."--Ibid. 27. [13] Civil Rights Cases, 109 U.S. 3, 23-25 (1883); Plessy _v._ Ferguson, 163 U.S. 537 (1896). [14] Hodges _v._ United States; 203 U.S. 1 (1906). [15] Robertson _v._ Baldwin, 165 U.S. 275, 282 (1897). [16] Butler _v._ Perry, 240 U.S. 328, 333 (1916).--Work-or-fight laws, such as States enacted during World War I, which required male residents to be employed during the period of that War were sustained on similar grounds, as were municipal ordinances, enforced during the Depression, which compelled indigents physically able to perform manual labor to serve the municipality without compensation as a condition of receiving financial assistance.--State _v._ McClure, 7 Boyce (Del.) 265; 105 A. 712 (1919); Commonwealth _v._ Pouliot, 292 Mass. 229; 198 N.E. 256 (1935). [17] Arver _v._ United States (Selective Draft Law Cases), 245 U.S. 366, 390 (1918); United States _v._ Brooks, 54 F. Supp. 995 (1944); affirmed 147 F. (2d) 134 (1945); certiorari denied, 324 U.S. 878 (1945). It may be noted in this connection that labor leaders have contended that conscription of labor in time of war, unaccompanied by nationalization of industry, would mean that the conscripts, having thus been forced by the Government to work for private profit, would be reduced to involuntary servitude. This position is not supported by the precedents.--_See_ Corwin, Total War and the Constitution, 89-90 (1947). [18] Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170, 109 (1921). [19] United States _v._ Petrillo, 332 U.S. 1, 12-13 (1947). Injunctions and "cease and desist" orders in labor disputes have also been repeatedly sustained against charges by labor that the prohibitions of this amendment had been violated. _See_ Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949), in which application of the Wisconsin Employment Peace Act in support of an order forbidding recurrent, intermittent work stoppages for unstated ends was held not to have imposed involuntary servitude. _See also_ Western Union Tel. Co. _v._ International B. of E. Workers, 2 F. (2d) 993 (1924); International Brotherhood, Etc. _v._ Western U. Tel. Co., 46 F. (2d) 736 (1931), certiorari denied, 284 U.S. 630 (1931). [20] United States _v._ Harris, 106 U.S. 629, 640 (1883). An act of Congress which penalized a conspiracy to deprive any person of the equal protection of the laws or of equal privileges and immunities under the laws was accordingly held unconstitutional insofar as its validity was made to depend upon the Thirteenth Amendment. [21] Civil Rights Cases, 109 U.S. 3, 20, 23 (1883). [22] 14 Stat. 546; 8 U.S.C.A. § 56; 18 U.S.C.A. § 1581. [23] 197 U.S. 207, 218 (1905). [24] 320 U.S. 527, 529 (1944). AMENDMENT 14 RIGHTS OF CITIZENS Page Section 1. Citizenship; privileges and immunities; due process; equal protection 963 Citizens of the United States 963 Kinds and sources of citizenship 963 History 963 Judicial elucidation of the citizenship clause 964 National and State citizenship 965 Corporations 965 Privileges and immunities 965 Purpose and early history of the clause 965 Privileges and immunities of citizens of the United States 967 Privileges held not within the protection of the clause 969 Due process of law clause 971 Historical development 971 Police power: liberty: property 974 Liberty of contract--labor relations 976 Definitions 981 "Persons" defined 981 Due process and the police power 982 Definition 982 Limitations on the police power 982 "Liberty," in general 983 Definitions 983 Personal liberty: compulsory vaccination: sexual sterilization 984 Liberties pertaining to education (of teachers, parents, pupils) 984 Liberties safeguarded by the first eight amendments 985 Liberty of contract (labor relations) 985 In general 985 Laws regulating hours of labor 986 Laws regulating labor in mines 987 Laws prohibiting employment of children in hazardous occupations 987 Laws regulating payment of wages 987 Minimum wage laws 988 Workmen's compensation laws 989 Collective bargaining 991 Regulation of charges; Business affected with a Public Interest 994 History 994 Nebbia _v._ New York 996 Judicial review of publicly determined rates and charges 998 Development 998 Limitations on judicial review 1000 Ben Avon Case 1003 History of the valuation question 1004 Regulation of public utilities (other than rates) 1008 In general 1008 Compulsory expenditures 1009 Grade crossings and other expenditures by railroads 1010 Compellable services 1011 Intercompany railway service 1012 Intercompany discriminatory service charges 1013 Safety regulations applicable to railroads 1014 Liabilities and penalties 1014 Regulation of corporations, business, professions, and trades 1016 Domestic corporations 1016 Foreign corporations 1016 Business in general 1017 Laws prohibiting trusts, discrimination, restraint of trade 1017 Statutes preventing fraud in sale of goods 1018 Blue sky laws; laws regulating boards of trade, etc. 1019 Trading stamps 1019 Banking 1020 Loans, interest, assignments 1020 Insurance 1021 Professions, trades, occupations 1023 Pharmacies 1023 Miscellaneous business, professions, trades, and occupations 1023 Protection of resources of the State 1025 Oil and gas 1025 Protection of property damaged by mining or drilling of wells 1026 Water 1026 Apple and citrus fruit industries 1026 Fish and game 1027 Limitations on ownership 1027 Zoning, building lines, etc. 1027 Safety regulations 1029 Police power 1029 General 1029 Health measures 1030 Protection of water supply 1030 Garbage 1030 Sewers 1030 Food and Drugs, etc. 1030 Milk 1030 Protection of public morals 1031 Gambling and lotteries 1031 Red light districts 1031 Sunday blue laws 1031 Intoxicating liquor 1031 Regulation of motor vehicles and motor carriers 1032 Succession to property 1033 Administration of estates 1034 Abandoned property 1034 Vested rights, remedial rights; political candidacy 1034 Man's best friend 1035 Control of local units of government 1035 Taxation 1036 In general 1036 Public purpose 1036 Other considerations affecting validity: excessive burden; ration of amount to benefit received 1037 Estate, gift and inheritance taxes 1037 Other types of taxes 1036 Income taxes 1036 Franchise taxes 1036 Severance taxes 1036 Real property taxes (assessment) 1036 Real property taxes (special assessments) 1040 Jurisdiction to tax 1041 Land 1041 Tangible personalty 1041 Intangible personalty 1042 General 1042 Taxes on intangibles sustained 1042 Taxes on intangibles invalidated 1044 Transfer taxes (inheritance, estate, gift taxes) 1045 Corporation taxes 1049 Intangible personal property 1049 Privilege taxes measured by corporate stock 1050 Privilege taxes measured by gross receipts 1051 Taxes on tangible personal property 1052 Income and other taxes 1053 Individual incomes 1053 Incomes of foreign corporations 1054 Chain store taxes 1055 Insurance company taxes 1055 Procedure in taxation 1056 In general 1056 Notice and hearing in relation to general taxes 1057 Notice and hearing in relation to assessments 1057 Notice and hearing in relation to special assessments 1058 Sufficiency and manner of giving notice 1060 Sufficiency of remedy 1060 Laches 1061 Collection of taxes 1061 Eminent Domain 1062 Historical development 1062 Public use 1063 Necessity for a taking 1064 What constitutes a taking for a public use 1064 Just compensation 1066 Uncompensated takings 1067 Consequential damages 1067 Limits to the above rule 1068 Due process in eminent domain 1069 Notice 1069 Hearing 1069 Occupation in advance of condemnation 1070 Due process in civil proceedings 1070 Some general criteria 1070 Ancient usage and uniformity 1070 Equality 1071 Due process and judicial process 1071 Jurisdiction 1072 In general 1072 How perfected: by voluntary appearance or service of process 1072 Service of process in actions in personam: individuals, resident and nonresident 1073 Suits in personam 1075 Suability of foreign corporations 1075 Service of process 1080 Actions in rem--proceedings against land 1080 Actions in rem--attachment proceedings 1081 Actions in rem--corporations, estates, trusts, etc. 1081 Actions in rem--divorce proceedings 1083 Misnomer of defendant--false return, etc. 1083 Notice and hearing 1084 Legislative proceedings 1084 Administrative proceedings 1084 Statutory proceedings 1087 Judicial proceedings 1087 Sufficiency of notice and hearing 1088 Power of States to regulate procedure 1089 Generally 1089 Pleading and practice 1089 Commencement of actions 1089 Pleas in abatement 1090 Defenses 1090 Amendments and continuances 1091 Costs, damages, and penalties 1091 Statutes of limitation 1092 Evidence and presumptions 1093 Jury trials: dispensing with trials 1096 Due process in criminal proceedings 1096 General 1096 Indefinite statutes: right of accused to knowledge of offense 1097 Abolition of the grand jury 1098 Right to counsel 1098 Right to trial by jury 1109 Self-incrimination: forced confessions 1111 Unreasonable searches and seizures 1121 Conviction based on perjured testimony 1124 Confrontation: presence of the accused; public trial 1126 Trial by impartial tribunal 1131 Other attributes of a fair trial 1132 Excessive bail, cruel and unusual punishment, sentence 1133 Double jeopardy 1135 Rights of prisoners 1137 Access to the courts 1137 Appeals: corrective process 1137 Due process: miscellaneous 1139 Appeals 1139 Federal review of State procedure 1140 Equal protection of the laws 1141 Definition of terms 1141 What constitutes State action 1141 "Persons" 1142 "Within its jurisdiction" 1143 "Equal protection of the laws" 1144 Legislative classifications 1145 Taxation 1146 Classifications for the purpose of taxation 1147 Foreign corporations 1149 Income taxes 1150 Inheritance taxes 1150 Motor vehicle taxes 1151 Poll taxes 1152 Property taxes 1152 Special assessment 1152 Police power 1153 Classification 1153 Administrative discretion 1157 Alien laws 1157 Labor relations 1158 Monopolies 1160 Punishment for crime 1160 Segregation 1161 Political rights 1163 Procedure 1165 General doctrine 1165 Access to courts 1166 Corporations 1166 Expenses of litigation 1167 Selection of jury 1167 Section 2. Apportionment of representation 1170 In general 1171 "Indians not taxed" 1171 Right to vote 1172 Reduction of State's representation 1172 Section 3. Disqualification of officers 1173 In general 1173 Section 4. Public debt, etc. 1174 Section 5. Enforcement 1175 Scope of the provision 1175 RIGHTS OF CITIZENS Amendment 14 Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Citizens of the United States KIND AND SOURCES OF CITIZENSHIP There are three categories of persons who, if subject to the jurisdiction of the United States, are citizens thereof: (1) those who are born citizens, of whom there are two classes, those who are born in the United States and those who are born abroad of American parentage; (2) those who achieve citizenship by qualifying for it in accordance with the naturalization statutes; (3) those who have citizenship thrust upon them, such as the members of certain Indian tribes and the inhabitants of certain dependencies of the United States. In the present connection we are interested in those who are citizens by virtue of birth in the United States.[1] HISTORY In the famous Dred Scott Case,[2] Chief Justice Taney had ruled that United States citizenship was enjoyed by two classes of individuals: (1) white persons born in the United States as descendants of "persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States and [who] became also citizens of this new political body," the United States of America, and (2) those who, having been "born outside the dominions of the United States," had migrated thereto and been naturalized therein. The States were competent, he conceded, to confer State citizenship upon anyone in their midst, but could not make the recipient of such status a citizen of the United States. The Negro, however, according to the Chief Justice, was ineligible to attain United States citizenship either from a State or by virtue of birth in the United States, even as a free man descended from a Negro residing as a free man in one of the States at the date of ratification of the Constitution. That basic document did not contemplate the possibility of Negro citizenship.[3] By the Fourteenth Amendment this deficiency of the original Constitution was cured.[4] JUDICIAL ELUCIDATION OF THE CITIZENSHIP CLAUSE By the decision in 1898 in United States _v._ Wong Kim Ark,[5] all children born in the United States to aliens, even temporary sojourners, if they are not exempt from territorial jurisdiction, are citizens irrespective of race or nationality. But children born in the United States to alien enemies in hostile occupation or to diplomatic representatives of a foreign state, not being "subject to the jurisdiction thereof," i.e., of the United States, are not citizens.[6] Likewise persons born on a public vessel of a foreign country while within the waters of the United States are not considered as having been born within the jurisdiction of the United States, and hence are not citizens thereof.[7] Conversely, a Chinese born on the high seas aboard an American vessel of Chinese parents residing in the United States was declared not to be a citizen on the ground of not having been born "in the United States."[8] But a child who was born in like circumstances of parents who were citizens of the United States was declared, shortly before the Civil War, to be a citizen thereof.[9] NATIONAL AND STATE CITIZENSHIP With the ratification of the Fourteenth Amendment a distinction between citizenship of the United States and citizenship of a State was clearly recognized and established. "Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual."[10] National citizenship, although not created by this amendment, was thereby made "paramount and dominant."[11] CORPORATIONS Citizens of the United States within the meaning of this article must be natural and not artificial persons; a corporate body is not a citizen of the United States.[12] Privileges and Immunities PURPOSE AND EARLY HISTORY OF THE CLAUSE Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a "practical nullity" by a single decision of the Supreme Court rendered within five years after its ratification. In the Slaughter-House Cases[13] a bare majority of the Court frustrated the aims of the most aggressive sponsors of this clause, to whom was attributed an intention to centralize "in the hands of the Federal Government large powers hitherto exercised by the States" with a view to enabling business to develop unimpeded by State interference. This expansive alteration of the Federal System was to have been achieved by converting the rights of the citizens of each State as of the date of the adoption of the Fourteenth Amendment into privileges and immunities of United States citizenship and thereafter perpetuating this newly defined _status quo_ through judicial condemnation of any State law challenged as "abridging" any one of the latter privileges. To have fostered such intentions, the Court declared, would have been "to transfer the security and protection of all the civil rights * * * to the Federal Government, * * * to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States," and to "constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment * * * [The effect of] so great a departure from the structure and spirit of our institutions; * * * is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; * * * We are convinced that no such results were intended by the Congress * * *, nor by the legislatures * * * which ratified" this amendment, and that the sole "pervading purpose" of this and the other War Amendments was "the freedom of the slave race." Conformably to these conclusions the Court advised the New Orleans butchers that the Louisiana statute conferring on a single corporation a monopoly of the business of slaughtering cattle abrogated no rights possessed by them as United States citizens and that insofar as that law interfered with their claimed privilege of pursuing the lawful calling of butchering animals, the privilege thus terminated was merely one of "those which belonged to the citizens of the States as such, and" that these had been "left to the State governments for security and protection" and had not been by this clause "placed under the special care of the Federal Government." The only privileges which the latter clause expressly protected against State encroachment were declared to be those "which owe their existence to the Federal Government, its National character, its Constitution, or its laws."--privileges, indeed, which had been available to United States citizens even prior to the adoption of the Fourteenth Amendment; and inasmuch as under the principle of federal supremacy no State ever was competent to interfere with their enjoyment, the privileges and immunities clause of the Fourteenth Amendment was thereby reduced to a superfluous reiteration of a prohibition already operative against the States.[14] PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES Although the Court has expressed a reluctance to attempt a definitive enumeration of those privileges and immunities of United States citizens such as are protected against State encroachment, it nevertheless felt obliged in the Slaughter-House Cases "to suggest some which owe their existence to the Federal Government, its National character, its Constitution, or its laws." Among those then identified were the following: right of access to the seat of Government, and to the seaports, subtreasuries, land offices, and courts of justice in the several States; right to demand protection of the Federal Government on the high seas, or abroad; right of assembly and privilege of the writ of _habeas corpus_; right to use the navigable waters of the United States; and rights secured by treaty.[15] In a later listing in Twining _v._ New Jersey,[16] decided in 1908, the Court recognized "among the rights and privileges" of national citizenship the following: The right to pass freely from State to State;[17] the right to petition Congress for a redress of grievances;[18] the right to vote for national officers;[19] the right to enter public lands;[20] the right to be protected against violence while in the lawful custody of a United States marshal;[21] and the right to inform the United States authorities of violations of its laws.[22] Earlier in a decision not referred to in the aforementioned enumeration, the Court had also acknowledged that the carrying on of interstate commerce is "a right which every citizen of the United States is entitled to exercise."[23] During the past fifteen years this clause has been accorded somewhat uneven treatment by the Court which, on two occasions at least, has manifested a disposition to magnify the restraint which it imposes on State action by enlarging previous enumerations of the privileges protected thereby. In Hague _v._ C.I.O.,[24] decided in 1939, the Court affirmed that freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States citizen. The latter privilege was deemed to have been abridged by city officials who acted in pursuance of a void ordinance which authorized a director of safety to refuse permits for parades or assemblies on streets or parks whenever he believed riots could thereby be avoided and who forcibly evicted from their city union organizers who sought to use the streets and parks for the aforementioned purposes.[25] Again in Edwards _v._ California,[26] four Justices[27] who concurred in the judgment that a California statute restricting the entry of indigent migrants was unconstitutional preferred to rest their decision on the ground that the act interfered with the right of citizens to move freely from State to State. In thus rejecting the commerce clause, relied on by the majority as the basis for disposing of this case, the minority thereby resurrected an issue first advanced in the old decision of Crandall _v._ Nevada[28] and believed to have been resolved in favor of the commerce clause by Helson and Randolph _v._ Kentucky.[29] Colgate _v._ Harvey,[30] however, which was decided in 1935 and overruled in 1940,[31] represented the first attempt by the Court since adoption of the Fourteenth Amendment to convert the privileges and immunities clause into a source of protection of other than those "interests growing out of the relationship between the citizen and the national government." Here the Court declared that the right of a citizen, resident in one State, to contract in another, to transact any lawful business, or to make a loan of money, in any State other than that in which the citizen resides was a privilege of national citizenship which was abridged by a State income tax law excluding from taxable income interest received on money loaned within the State.[32] Whether or not this overruled precedent is again to be revived and the privileges and immunities clause again placed in readiness for further expansion cannot yet be determined with assurance; but in Oyama _v._ California,[33] decided in 1948, the Court, in a single sentence, affirmed the contention of a native-born youth that California's Alien Land Law, applied so as to work a forfeiture of property purchased in his name with funds advanced by his parent, a Japanese alien ineligible to citizenship and precluded from owning land by the terms thereof, deprived him "of his privileges as an American citizen." In none of the previous enumerations has the right to acquire and retain property been set forth as one of the privileges of American citizenship protected against State abridgment; nor is any connection readily discernible between this right and the "relationship between the citizen and the national government." However, the right asserted by Oyama was supported by a "federal statute enacted before the Fourteenth Amendment" which provided that "all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to * * * purchase, * * * and hold * * * real * * * property."[34] PRIVILEGES HELD NOT WITHIN THE PROTECTION OF THE CLAUSE In the following cases State action was upheld against the challenge that it abridged the immunities or privileges of citizens of the United States: (1) Statute limiting hours of labor in mines.[35] (2) Statute taxing the business of hiring persons to labor outside the State.[36] (3) Statute requiring employment of only licensed mine managers and examiners, and imposing liability on the mine owner for failure to furnish a reasonably safe place for workmen.[37] (4) Statute restricting employment under public works of the State to citizens of the United States, with a preference to citizens of the State.[38] (5) Statute making railroads liable to employees for injuries caused by negligence of fellow servants, and abolishing the defense of contributory negligence.[39] (6) Statute prohibiting a stipulation against liability for negligence in delivery of interstate telegraph messages.[40] (7) Refusal of State court to license a woman to practice law.[41] (8) Law taxing in the hands of a resident citizen a debt owing from a resident of another State and secured by mortgage of land in the debtors' State.[42] (9) Statutes regulating the manufacture and sale of intoxicating liquors.[43] (10) Statute regulating the method of capital punishment.[44] (11) Statute restricting the franchise to male citizens.[45] (12) Statute requiring persons coming into a State to make a declaration of intention to become citizens and residents thereof before being permitted to register as voters.[46] (13) Statute restricting dower, in case wife at time of husband's death is a nonresident, to lands of which he died seized.[47] (14) Statute restricting right to jury trial in civil suits at common law.[48] (15) Statute restricting drilling or parading in any city by any body of men without license of the Governor. "The right voluntarily to associate together as a military company or organization, or to drill * * *, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship."[49] (16) Provision for prosecution upon information, and for a jury (except in capital cases) of eight persons.[50] Upon an extended review of the cases, the Court held that "the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the powers of the Federal Government"; and specifically, that the right to be tried for an offense only upon indictment, and by a jury of 12, rests with the State governments and is not protected by the Fourteenth Amendment. "Those are not distinctly privileges or immunities [of national citizenship] where everyone has the same as against the Federal Government, whether citizen or not." Similarly, freedom from testimonial compulsion, or self-incrimination, is not "an immunity that is protected by the Fourteenth Amendment against State invasion."[51] (17) Statute penalizing the becoming or remaining a member of any oath-bound association (other than benevolent orders, etc.,) with knowledge that the association has failed to file its constitution and membership lists. The privilege of remaining a member of such an association, "if it be a privilege arising out of citizenship at all," is an incident of State rather than United States citizenship.[52] (18) Statute allowing a State to appeal in criminal cases for errors of law and to retry the accused.[53] (19) Statute making the payment of poll taxes a prerequisite to the right to vote.[54] (20) Statute whereby deposits in banks outside the State are taxed at 50¢ per $100 and deposits in banks within the State are taxed at 10¢ per $100. "* * * the right to carry out an incident to a trade, business or calling such as the deposit of money in banks is not a privilege of national citizenship."[55] (21) The right to become a candidate for State office is a privilege of State citizenship, not national citizenship.[56] (22) The Illinois Election Code which requires that a petition to form and nominate candidates for a new political party be signed by at least 200 voters from each of at least 50 of the 102 counties in the State, notwithstanding that 52% of the voters reside in only one county and 87%, in the 49 most populous counties.[57] Due Process of Law Clause HISTORICAL DEVELOPMENT Although many years after ratification the Court ventured the not very informative observation that the Fourteenth Amendment "operates to extend * * * the same protection against arbitrary State legislation, affecting life, liberty and property, as is offered by the Fifth Amendment,"[58] and that "ordinarily if an act of Congress is valid under the Fifth Amendment it would be hard to say that a State law in like terms was void under the Fourteenth,"[59] the significance of the due process clause as a restraint on State action appears to have been grossly underestimated by litigants no less than by the Court in the years immediately following its adoption. From the outset of our constitutional history due process of law as it occurs in the Fifth Amendment had been recognized as a restraint upon government, but, with one conspicuous exception,[60] only in the narrower sense that a legislature must provide "due process for the enforcement of law"; and it was in accordance with this limited appraisal of the clause that the Court disposed of early cases arising thereunder. Thus, in the Slaughter-House Cases,[61] in which the clause was timidly invoked by a group of butchers challenging on several grounds the validity of a Louisiana statute which conferred upon one corporation the exclusive privilege of butchering cattle in New Orleans, the Court declared that the prohibition against a deprivation of property "has been in the Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. * * * We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."[62] Four years later, in Munn _v._ Illinois,[63] the Court again refused to interpret the due process clause as invalidating State legislation regulating the rates charged for the transportation and warehousing of grain. Overruling contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its use and by transferring to the public an interest in a private enterprise, Chief Justice Waite emphasized that "the great office of statutes is to remedy defects in the common law as they are developed, * * * We know that this power [of rate regulation] may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts."[64] Deploring such attempts, nullified consistently in the preceding cases, to convert the due process clause into a substantive restraint on the powers of the States, Justice Miller in Davidson _v._ New Orleans[65] obliquely counseled against a departure from the conventional application of the clause, albeit he acknowledged the difficulty of arriving at a precise, all inclusive, definition thereof. "It is not a little remarkable," he observed, "that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal Government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law. But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, * * *, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, * * *"[66] In thus persisting in its refusal to review, on other than procedural grounds, the constitutionality of State action, the Court was rejecting additional business; but a bare half-dozen years later, in again reaching a result in harmony with past precedents, the Justices gave fair warning of the imminence of a modification of their views. Thus, after noting that the due process clause, by reason of its operation upon "all the powers of government, legislative as well as executive and judicial," could not be appraised solely in terms of the "sanction of settled usage," Justice Mathews, speaking for the Court in Hurtado _v._ California,[67] declared that, "arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government."[68] Thus were the States put on notice that every species of State legislation, whether dealing with procedural or substantive rights, was subject to the scrutiny of the Court when the question of its essential justice is raised. Police Power: Liberty: Property What induced the Court to dismiss its fears of upsetting the balance in the distribution of powers under the Federal System and to enlarge its own supervisory powers over state legislation were the appeals more and more addressed to it for adequate protection of property rights against the remedial social legislation which the States were increasingly enacting in the wake of industrial expansion. At the same time the added emphasis on the due process clause which satisfaction of these requests entailed afforded the Court an opportunity to compensate for its earlier virtual nullification of the privileges and immunities clause of the amendment. So far as such modification of its position needed to be justified in legal terms, theories concerning the relation of government to private rights were available to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed prior to the Civil War. Preliminary, however, to this consummation the Slaughter-House Cases and Munn _v._ Illinois had to be overruled in part, at least, and the views of the dissenting Justices in those cases converted into majority doctrine. About twenty years were required to complete this process, in the course of which the restricted view of the police power advanced by Justice Field in his dissent in Munn _v._ Illinois,[69] namely, that it is solely a power to prevent injury, was in effect ratified by the Court itself. This occurred in 1887, in Mugler _v._ Kansas,[70] where the power was defined as embracing no more than the power to promote public health, morals, and safety. During the same interval, ideas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases,[71] had been transformed tentatively into constitutionally enforceable limitations upon government,[72] with the consequence that the States, in exercising their police power, could foster only those purposes of health, morals, and safety which the Court had enumerated and could employ only such means as would not unreasonably interfere with the fundamental natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose.[73] So having narrowed the scope of the State's police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the latter currently accepted theories of _laissez faire_ economics, reinforced by the doctrine of evolution as elaborated by Herbert Spencer, to the end that "liberty", in particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd _v._ New York,[74] decided in 1892, Justice Brewer in a dictum declared: "The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government." And to implement this point of view the Court next undertook to water down the accepted maxim that a State statute must be presumed to be valid until clearly shown to be otherwise.[75] The first step was taken with the opposite intention. This occurred in Munn _v._ Illinois,[76] where the Court, in sustaining the legislation before it, declared: "For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed."[77] Ten years later, in Mugler _v._ Kansas[78] this procedure was improved upon, and a State-wide anti-liquor law was sustained on the basis of the proposition that deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them; that is to say, for the Court to review and appraise the considerations which had induced the legislature to enact the statute in the first place.[79] However, in Powell _v._ Pennsylvania,[80] decided the following year, the Court, being confronted with a similar act involving oleomargarine, concerning which it was unable to claim a like measure of common knowledge, fell back upon the doctrine of presumed validity, and declaring that "it does not appear upon the face of the statute, or from any of the facts of which the Court must take judicial cognizance, that it infringes rights secured by the fundamental law, * * *"[81] sustained the measure. In contrast to the presumed validity rule under which the Court ordinarily is not obliged to go beyond the record of evidence submitted by the litigants in determining the validity of a statute, the judicial notice principle, as developed in Mugler _v._ Kansas, carried the inference that unless the Court, independently of the record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged to invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter; namely, health, morals, or safety. For appraising State legislation affecting neither liberty nor property, the Court found the rule of presumed validity quite serviceable; but for invalidating legislation constituting governmental interference in the field of economic relations, and, more particularly, labor-management relations, the Court found the principle of judicial notice more advantageous. This advantage was enhanced by the disposition of the Court, in litigation embracing the latter type of legislation, to shift the burden of proof from the litigant charging unconstitutionality to the State seeking enforcement. To the latter was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact "authorized" by the Constitution and not merely that the latter did not expressly prohibit enactment of the same. Liberty of Contract--Labor Relations Although occasionally acknowledging in abstract terms that freedom of contract is not absolute but is subject to restraint by the State in the exercise of its police powers, the Court, in conformity with the aforementioned theories of economics and evolution, was in fact committed to the principle that freedom of contract is the general rule and that legislative authority to abridge the same could be justified only by exceptional circumstances. To maintain such abridgments at a minimum, the Court intermittently employed the rule of judicial notice in a manner best exemplified by a comparison of the early cases of Holden _v._ Hardy[82] and Lochner _v._ New York,[83] decisions which bear the same relation to each other as Powell _v._ Pennsylvania[84] and Mugler _v._ Kansas.[85] In Holden _v._ Hardy, decided in 1898, the Court, in reliance upon the principle of presumed validity, allowed the burden of proof to remain with those attacking the validity of a statute and upheld a Utah act limiting the period of labor in mines to eight hours per day. Taking cognizance of the fact that labor below the surface of the earth was attended by risk to person and to health and for these reasons had long been the subject of State intervention, the Court registered its willingness to sustain a limitation on freedom of contract which a State legislature had adjudged "necessary for the preservation of health of employees," and for which there were "reasonable grounds for believing that * * * [it was] supported by the facts."[86] Seven years later, however, a radically altered court was predisposed in favor of the doctrine of judicial notice, through application of which it arrived at the conclusion, in Lochner _v._ New York, that a law restricting employment in bakeries to ten hours per day and 60 hours per week was an unconstitutional interference with the right of adult laborers, _sui juris_, to contract with respect to their means of livelihood. Denying that in so holding that the Court was in effect substituting its own judgment for that of the legislature, Justice Peckham, nevertheless, maintained that whether the act was within the police power of the State was a "question that must be answered by the Court"; and then, in disregard of the accumulated medical evidence proffered in support of the act, uttered the following observation: "In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some trades, and is also vastly more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. * * * It might be safely affirmed that almost all occupations more or less affect the health. * * * But are we all, on that account, at the mercy of the legislative majorities?"[87] Of two dissenting opinions filed in the case, one, prepared by Justice Harlan, stressed the abundance of medical testimony tending to show that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial passages; and concluded that the very existence of such evidence left the reasonableness of the measure under review open to discussion and that the the latter fact, of itself, put the statute within legislative discretion. "'Responsibility,' according to Justice Harlan, 'therefore, rests upon the legislators, not upon the courts. No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives. * * * The public interest imperatively demand--that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably beyond all question in violation of the fundamental law of the Constitution.'"[88] The second dissenting opinion written by Justice Holmes has received the greater measure of attention, however, for the views expressed therein were a forecast of the line of reasoning to be followed by the Court some decades later. According to Justice Holmes: "This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this Court that State constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. * * * The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. * * * But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of _laissez faire_. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution * * * I think that the word 'liberty,' in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."[89] In part, Justice Holmes's criticism of his colleagues was unfair, for his "rational and fair man" could not function in a vacuum, and, in appraising the constitutionality of State legislation, could no more avoid being guided by his preferences or "economic predilections" than were the Justices constituting the majority. Insofar as he was resigned to accept the broader conception of due process of law in preference to the historical concept thereof as pertaining to the enforcement rather than the making of law and did not affirmatively advocate a return to the maxim that the possibility of abuse is no argument against possession of a power, Justice Holmes, whether consciously or not, was thus prepared to observe, along with his opponents in the majority, the very practices which were deemed to have rendered inevitable the assumption by the Court of a "perpetual censorship" over State legislation. The basic distinction, therefore, between the positions taken by Justice Peckham for the majority and Justice Holmes, for what was then the minority, was the espousal of the conflicting doctrines of judicial notice by the former and of presumed validity by the latter. Although the Holmes dissent bore fruit in time in the form of the Bunting _v._ Oregon[90] and Muller _v._ Oregon[91] decisions overruling the Lochner Case, the doctrinal approach employed in the earlier of these by Justice Brewer continued to prevail until the depression in the 1930's. In view of the shift in the burden of proof which application of the principle of judicial notice entailed, counsel defending the constitutionality of social legislation developed the practice of submitting voluminous factual briefs replete with medical or other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public health, safety, or morals. Whenever the Court was disposed to uphold measures pertaining to industrial relations, such as laws limiting hours[92] of work, it generally intimated that the facts thus submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof; but whenever it chose to invalidate comparable legislation, such as enactments establishing minimum wages for women and children,[93] it brushed aside such supporting data, proclaimed its inability to perceive any reasonable connection between the statute and the legitimate objectives of health or safety, and condemned the former as an arbitrary interference with freedom of contract. During the great Depression, however, the _laissez faire_ tenet of self-help was supplanted by the belief that it is peculiarly the duty of government to help those who are unable to help themselves; and to sustain remedial legislation enacted in conformity with the latter philosophy, the Court had to revise extensively its previously formulated concepts of "liberty" under the due process clause. Not only did the Court take judicial notice of the demands for relief arising from the depression when it overturned prior holdings and sustained minimum wage legislation,[94] but in upholding State legislation designed to protect workers in their efforts to organize and bargain collectively, the Court virtually had to exclude from consideration the employer's contention that such legislation interfered with his liberty of contract in contravention of the due process clause and to exalt as a fundamental right the correlative liberty of employees, which right the State legislatures were declared to be competent to protect against interference from private sources. To enable these legislatures to balance the equities, that is, to achieve equality in bargaining power between employer and employees, the Court thus sanctioned a diminution of liberty in the sense of the employer's freedom of contract and a corresponding increase in the measure of liberty enjoyable by the workers. To the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of other individuals no less than by the arbitrary action of public officials, the Court in effect transformed the due process clause into a source of encouragement to State legislatures to intervene affirmatively by way of mitigating the effects of such coercion. By such modification of its views, liberty, in the constitutional sense of freedom resulting from restraint upon government, was replaced by the civil liberty which an individual enjoys by virtue of the restraints which government, in his behalf, imposes upon his neighbors. DEFINITIONS "Persons" Defined Notwithstanding the historical controversy that has been waged as to whether the framers of the Fourteenth Amendment intended the word, "person," to mean only natural persons, or whether the word, "person," was substituted for the word, "citizen," with a view to protecting corporations from oppressive state legislation,[95] the Supreme Court, as early as the Granger cases,[96] decided in 1877, upheld on the merits various state laws without raising any question as to the status of railway corporation-plaintiffs to advance due process contentions. There is no doubt that a corporation may not be deprived of its property without due process of law;[97] and although prior decisions have held that the "liberty" guaranteed by the Fourteenth Amendment is the liberty of natural, not artificial, persons,[98] nevertheless a newspaper corporation was sustained, in 1936, in its objection that a state law deprived it of liberty of press.[99] As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship.[100] Ordinarily, the mere interest of an official as such, in contrast to an actual injury sustained by a natural or artificial person through invasion of personal or property rights, has not been deemed adequate to enable him to invoke the protection of the Fourteenth Amendment against State action.[101] Similarly, municipal corporations are viewed as having no standing "to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator," the State.[102] However, State officers are acknowledged to have an interest, despite their not having sustained any "private damage," in resisting an "endeavor to prevent the enforcement of laws in relation to which they have official duties," and, accordingly, may apply to federal courts for the "review of decisions of State courts declaring State statutes which [they] seek to enforce to be repugnant to the" Fourteenth Amendment.[103] Due Process and the Police Power Definition.--The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the State.[104] Limitations on the Police Power.--Because the police power of a State is the least limitable of the exercises of government, such limitations as are applicable thereto are not readily definable. Being neither susceptible of circumstantial precision, nor discoverable by any formula, these limitations can be determined only through appropriate regard to the subject matter of the exercise of that power.[105] "It is settled [however] that neither the 'contract' clause nor the 'due process' clause had the effect of overriding the power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise."[106] Insofar as the police power is utilized by a State, the means employed to effect its exercise can be neither arbitrary nor oppressive, but must bear a real and substantial relation to an end which is public, specifically, the public health, public safety, or public morals, or some other phase of the general welfare.[107] The general rule is that if a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.[108] Yet where mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose seems to be a private use.[109] On the other hand, mere "cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a State to exert its reserved power or its police power."[110] Moreover, it is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking without due process of law.[111] Similarly, initial compliance with a regulation which is valid when adopted occasions no forfeiture of the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation.[112] "Liberty" in General Definition.--"While * * * [the] Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."[113] Personal Liberty: Compulsory Vaccination: Sexual Sterilization.--Personal liberty is not infringed by a compulsory vaccination law[114] enacted by a State or its local subdivisions pursuant to the police power for the purpose of protecting inhabitants against the spread of smallpox. "The principle that sustains compulsory vaccination is [also] broad enough to cover" a statute providing for sexual sterilization of inmates of State supported institutions who are found to be afflicted with an hereditary form of insanity or imbecility.[115] Equally constitutional is a statute which provides for the commitment, after probate proceedings, of a psychopathic personality, defined by the State court as including those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to commit injury.[116] However, a person cannot be deprived of his liberty under a vague statute which subjected to fine or imprisonment, as a "gangster," any one not engaged in any lawful occupation, known to be a member of a gang consisting of two or more persons, and who had been convicted of a crime in any State in the Union.[117] Liberties Pertaining to Education (of Teachers, Parents, Pupils).--A State law forbidding the teaching in any private denominational, parochial, or public school, of any modern language, other than English, to any child who has not successfully passed the eighth grade was declared, in Meyer _v._ Nebraska[118] to be an unconstitutional interference with the right of a foreign language teacher to teach and "of parents to engage him so to instruct their children." Although the Court did incorporate into its opinion in this case the general definition of "liberty" set forth above, its holding was substantially a reaffirmation of the liberty, in this instance of the teacher, to pursue a lawful calling free and clear of arbitrary restraints imposed by the State. In Pierce _v._ Society of the Sisters,[119] the Court elaborated further upon the liberty of parents when it declared that a State law requiring compulsory public school education of children, aged eight to sixteen, "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."[120] As to a student, neither his liberty to pursue his happiness nor his property or property rights were infringed when he was denied admission to a State university for refusing to comply with a law requiring renunciation of allegiance to, or affiliation with, a Greek letter fraternity. The right to attend such an institution was labelled, not an absolute, but a conditional right; inasmuch as the school was wholly under the control of the State, the latter was competent to enact measures such as the present one regulating internal discipline thereat.[121] Similarly, "the Fourteenth Amendment as a safeguard of 'liberty' [does not] confer the right to be students in the State university free from obligation to take military training as one of the conditions of attendance."[122] Liberties Safeguarded by the First Eight Amendments.--In what has amounted to a constitutional revolution, the Court, since the end of World War I, has substantially enlarged the meaning of the term, "liberty," appearing in the due process clause of the Fourteenth Amendment. As a consequence of this altered interpretation, States and their local subdivisions have been restrained in their attempts to interfere with the press, or with the freedom of speech, assembly, or religious precepts of their inhabitants, and prevented from withholding from persons charged with commission of a crime certain privileges deemed essential to the enjoyment of a "fair trial." Cases revealing to what extent there has been incorporated into the "liberty" of the due process clause of the Fourteenth Amendment the substance of the First Amendment are set forth in the discussion presented under the latter amendment; whereas the decisions indicating the scope of the absorption into the Fourteenth Amendment of the procedural protection afforded by the Fourth, Fifth, Sixth, and Eighth Amendments are included in the material hereinafter presented under the subtitle, Criminal Proceedings. Liberty of Contract (Labor Relations) In General.--Liberty of contract, a concept originally advanced by Justices Bradley and Field in the Slaughter-House Cases,[123] was elevated to the status of accepted doctrine in 1897 in Allgeyer _v._ Louisiana.[124] Applied repeatedly in subsequent cases as a restraint on State power, freedom of contract has also been alluded to as a property right, as is evident in the language of the Court in Coppage _v._ Kansas:[125] "Included in the right of personal liberty and the right of private property--partaking of the nature of each--is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense." However, by a process of reasoning that was almost completely discarded during the depression, the Court was nevertheless able, prior thereto, to sustain State ameliorative legislation by acknowledging that freedom of contract was "a qualified and not an absolute right. * * * Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. * * * In dealing with the relation of the employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression."[126] Through observance of such qualifying statement the Court was induced to uphold the following types of labor legislation. Laws Regulating Hours of Labor.--The due process clause has been construed as permitting enactment by the States of laws: (1) limiting the hours of labor in mines and smelters to eight hours per day;[127] (2) prescribing eight hours a day or a maximum of 48 hours per week as a limitation of the hours at which women may labor;[128] and (3) providing that no person shall work in any mill, etc., more than ten hours per day (with exceptions) but permitting overtime, not to exceed three hours a day, on condition that it is paid at the rate of one and one-half times the regular wage.[129] Because of the almost plenary powers of the State and its municipal subdivisions to determine the conditions under which work shall go forward on public projects, statutes limiting the hours of labor on public works were also upheld at a relatively early date.[130] Laws Regulating Labor in Mines.--The regulation of mines being so patently within the police power, States have been upheld in the enactment of laws providing for appointment of mining inspectors and requiring payment of their fees by mine owners,[131] compelling employment of only licensed mine managers and mine examiners, and imposing upon mine owners liability for the wilful failure of their manager and examiner to furnish a reasonably safe place for workmen.[132] Other similar regulations which have been sustained have included laws requiring that entries be of a specified width,[133] that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,[134] and that washhouses be provided for employees.[135] Laws Prohibiting Employment of Children in Hazardous Occupations.--To make effective its prohibition against the employment of persons under 16 years of age in dangerous occupations, a State has been held to be competent to require employers at their peril to ascertain whether their employees are in fact below that age.[136] Laws Regulating Payment of Wages.--No unconstitutional deprivation of liberty of contract was deemed to have been occasioned by a statute requiring redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages.[137] Nor was any constitutional defect discernible in laws requiring railroads to pay their employees semimonthly[138] and to pay them on the day of discharge, without abatement or reduction, any funds due them.[139] Similarly, freedom of contract was held not to be infringed by an act requiring that miners, whose compensation was fixed on the basis of weight, be paid according to coal in the mine car rather than at a certain price per ton for coal screened after it has been brought to the surface, and conditioning such payment on the presence of no greater percentage of dirt or impurities than that ascertained as unavoidable by the State Industrial Commission.[140] Minimum Wage Laws.--The theory that a law prescribing minimum wages for women and children violates due process by impairing freedom of contract was finally discarded in 1937.[141] The current theory of the Court, particularly when labor is the beneficiary of legislation, was recently stated by Justice Douglas for a majority of the Court, in the following terms: "Our recent decisions make plain that we do not sit as a superlegislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. The legislative power has limits * * *. But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided."[142] Proceeding from this basis the Court sustained a Missouri statute giving employees the right to absent themselves four hours on election day, between the opening and closing of the polls, without deduction of wages for their absence. It was admitted that this was a minimum wage law, but, said Justice Douglas, "the protection of the right of suffrage under our scheme of things is basic and fundamental," and hence within the police power. "Of course," the Justice added, "many forms of regulation reduce the net return of the enterprise * * * Most regulations of business necessarily impose financial burdens on the enterprise for which no compensation is paid. Those are part of the costs of our civilization. Extreme cases are conjured up where an employer is required to pay wages for a period that has no relation to the legitimate end. Those cases can await decision as and when they arise. The present law has no such infirmity. It is designed to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. The public welfare is a broad and inclusive concept. The moral, social, economic, and physical well-being of the community is one part of it; the political well-being, another. The police power which is adequate to fix the financial burden for one is adequate for the other. The judgment of the legislature that time out for voting should cost the employee nothing may be a debatable one. It is indeed conceded by the opposition to be such. But if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision. We could strike down this law only if we returned to the philosophy of the _Lochner_, _Coppage_, and _Adkins_ cases."[143] Workmen's Compensation Laws.--"This Court repeatedly has upheld the authority of the States to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer's liability for personal injuries to the employee.[144] * * * These decisions have established the propositions that the rules of law concerning the employer's responsibility for personal injury or death of an employee arising in the course of employment are not beyond alteration by legislation in the public interest; that no person has a vested right entitling him to have these any more than other rules of law remain unchanged for his benefit; and that, if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the rules respecting his responsibility to one employee for the negligence of another and respecting contributory negligence and assumption of risk are subject to legislative change."[145] Accordingly, a State statute which provided an exclusive system to govern the liabilities of employers and the rights of employees and their dependents, in respect of compensation for disabling injuries and death caused by accident in certain hazardous occupations,[146] was held not to work a deprivation of property without due process of law in rendering the employer liable irrespective of the doctrines of negligence, contributory negligence, assumption of risk, and negligence of fellow-servants, nor in depriving the employee, or his dependents, of the higher damages which, in some cases, might be rendered under these doctrines.[147] Likewise, an act which allowed an injured employee an election of remedies permitting restricted recovery under a compensation law although guilty of contributory negligence, and full compensatory damages under the Employers' Liability Act did not deprive an employer of his property without due process of law.[148] Similarly, an elective statute has been sustained which provided that, in actions against employers rejecting the system, the inquiry should be presumed to have resulted directly from the employer's negligence and the burden of rebutting said presumption shall rest upon the latter.[149] Contracts limiting liability for injuries, consummated in advance of the injury received, may be prohibited by the State, which may further stipulate that subsequent acceptance of benefits under such contracts shall not constitute satisfaction of a claim for injuries thereafter sustained.[150] Also, as applied to a nonresident alien employee hired within the State but injured on the outside, an act forbidding any contracts exempting employers from liability for injuries outside the State has been construed as not denying due process to the employer.[151] The fact that a State, after having allowed employers to cover their liability with a private insurer, subsequently withdrew that privilege and required them to contribute to a State Insurance Fund was held to effect no unconstitutional deprivation as applied to an employer who had obtained protection from an insurance company before this change went into effect.[152] Likewise, as long as the right to come under a workmen's compensation statute is optional with an employer, the latter, having chosen to accept benefits thereof, is estopped from attempting to escape its burdens by challenging the constitutionality of a provision thereof which makes the finding of fact of an industrial commission conclusive if supported by any evidence regardless of its preponderance.[153] When, by the terms of a workmen's compensation statute, the wrongdoer, in case of wrongful death, is obliged to indemnify the employer or the insurance carrier of the employer of the decedent, in the amount which the latter were required under said act to contribute into special compensation funds, no unconstitutional deprivation of the wrongdoer's property was discernible.[154] By the same course of reasoning neither the employer nor the carrier was held to have been denied due process by another provision in an act requiring payments by them, in case an injured employee dies without dependents, into special funds to be used for vocational rehabilitation or disability compensation of injured workers of other establishments.[155] Compensation also need not be based exclusively on loss of earning power, and an award authorized by statute for injuries resulting in disfigurement of the face or head, independent of compensation for inability to work, has been conceded to be neither an arbitrary nor oppressive exercise of the police power.[156] Collective Bargaining.--During the 1930's, liberty, in the sense of freedom of contract, judicially translated into what one Justice has labelled the Allgeyer-Lochner-Adair-Coppage doctrine,[157] lost its potency as an obstacle to the enforcement of legislation calculated to enhance the bargaining capacity of workers as against that already possessed by their employers. Prior to the manifestation, in Senn _v._ Tile Layers Protective Union,[158] decided in 1937, of a greater willingness to defer to legislative judgment as to the wisdom and need of such enactments, the Court had, on occasion, sustained measures such as one requiring every corporation to furnish, upon request, to any employee, when discharged or leaving its service, a letter, signed by the superintendent or manager, setting forth the nature and duration of his service to the corporation and stating truly the cause of his leaving.[159] Added provisions that such letters shall be on plain paper selected by the employee, signed in ink and sealed, and free from superfluous figures, and words, were also sustained as not amounting to any unconstitutional deprivation of liberty and property.[160] On the ground that the right to strike is not absolute, the Court in a similar manner upheld a statute by the terms of which an officer of a labor union was punished for having ordered a strike for the purpose of enforcing a payment to a former employee of a stale claim for wages.[161] The significance of the case of Senn _v._ Tile Layers Protective Union[162] as an indicator of the range of the alteration of the Court's views concerning the constitutionality of State labor legislation derives in part from the fact that the statute upheld therein was not appreciably different from that voided in Truax _v._ Corrigan.[163] Both statutes were alike in that they withheld the remedy of injunction; but by reason of the fact that the invalidated act did not contain the more liberal and also more precise definition of a labor dispute set forth in the later enactment and, above all, did not affirmatively purport to sanction peaceful picketing only, the Court was enabled to maintain that Truax _v._ Corrigan, insofar as "the statute there in question was * * * applied to legalize conduct which was not simply peaceful picketing," was distinguishable. Specifically, the Court in the Senn Case gave its approval to the application of a Wisconsin statute which authorized the giving of publicity to labor disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against such conduct to a controversy in which the matter at issue was the refusal of a tiling contractor employing nonunion workmen to sign a closed shop agreement unless a provision requiring him to abstain from working in his business as a tile layer or helper should be eliminated. Inasmuch as the enhancement of job opportunities for members of the union was a legitimate objective, the State was held competent to authorize the fostering of that end by peaceful picketing, and the fact that the sustaining of the union in its efforts at peaceful persuasion might have the effect of preventing Senn from continuing in business as an independent entrepreneur was declared to present an issue of public policy exclusively for legislative determination.[164] The policy of many State legislatures in recent years, however, has been to adopt legislation designed to control the abuse of the enormous economic power which previously enacted protective measures enabled labor unions to amass; and it is the constitutionality of such restrictive measures that has lately concerned the Court. Thus, in Railway Mail Association _v._ Corsi,[165] section 43 of New York's Civil Rights Law which forbids a labor organization to deny any person membership by reason of race, color, or creed, or to deny any member, on similar grounds, equal treatment in designation for employment, promotion, or dismissal by an employer was sustained, when applied to an organization of railway mail clerks, as not interfering unlawfully with the latter's right to choose its members nor abridging its property rights, or liberty of contract. Inasmuch as it held "itself out to represent the general business needs of employees" and functioned "under the protection of the State," the union was deemed to have forfeited the right to claim exemption from legislation protecting workers against discriminatory exclusion.[166] Similarly approved as constitutional in Lincoln Union _v._ Northwestern Co.[167] and American Federation of Labor _v._ American Sash Co.[168] were State laws outlawing the closed shop; and when labor unions invoked in their own defense the freedom of contract doctrine that hitherto had been employed to nullify legislation intended for their protection, the Court, speaking through Justice Black announced its refusal "to return, * * * to * * * [a] due process philosophy that has been deliberately discarded. * * * The due process clause," it maintained, does not "forbid a State to pass laws clearly designed to safeguard the opportunity of nonunion workers to get and hold jobs, free from discrimination against them because they are nonunion workers."[169] Also in harmony with the last mentioned pair of cases is Auto Workers _v._ Wisconsin Board[170] in which was upheld enforcement of the Wisconsin Employment Peace Act which proscribed as an unfair labor practice efforts of a union, after collective bargaining negotiations had become deadlocked, to coerce an employer through a "slow-down" in production achieved by the irregular, but frequent, calling of union meetings during working hours without advance notice to the employer or notice as to whether or when the employees would return, and without informing him of the specific terms sought by such tactics. "No one," declared the Court, can question "the State's power to police coercion by * * * methods" which involve "considerable injury to property and intimidation of other employees by threats."[171] Finally, in Giboney _v._ Empire Storage Co.,[172] the Court acknowledged that no violation of the Constitution results when a State law forbidding agreements in restraint of trade is construed by State courts as forbidding members of a union of ice peddlers from peacefully picketing a wholesale ice distributor's place of business for the sole purpose of inducing the latter not to sell to nonunion peddlers. REGULATION OF CHARGES; "BUSINESSES AFFECTED WITH A PUBLIC INTEREST" History In endeavoring to measure the impact of the due process clause upon efforts by the States to control the charges exacted by various businesses for their services, the Supreme Court, almost from the inception of the Fourteenth Amendment, has devoted itself to the examination of two questions: (1) whether that clause precluded that kind of regulation of certain types of business, and (2) the nature of the restraint, if any, which this clause imposes on State control of rates in the case of businesses as to which such control exists. For a brief interval following the ratification of the Fourteenth Amendment, the Supreme Court appears to have underestimated the significance of this clause as a substantive restraint on the power of States to fix rates chargeable by an industry deemed appropriately subject to such controls. Thus, in Munn _v._ Illinois,[173] the first of the "Granger" cases, in which maximum charges established by a State legislature for Chicago grain elevator companies were challenged, not as being confiscatory in character, but rather as a regulation beyond the power of any State agency to impose, the Court, in an opinion that was largely an _obiter dictum_, declared that the due process clause did not operate as a safeguard against oppressive rates, that if regulation was permissible, the severity thereof was within legislative discretion and could be ameliorated only by resort to the polls. Not much time was permitted to elapse, however, before the Court effected a complete withdrawal from this position; and by 1890[174] it had fully converted the due process clause into a positive restriction which the judicial branch is duty bound to enforce whenever State agencies seek to impose rates which, in its estimation, are arbitrary or unreasonable. In contrast to the speed with which the Court arrived at those above mentioned conclusions, more than fifty years were to elapse before it developed its currently applicable formula for determining the propriety of subjecting specific businesses to State regulation of their prices or charges. Prior to 1934, unless a business were "affected with a public interest," control of its prices, rates, or conditions of service was viewed as an unconstitutional deprivation of liberty and property without due process of law. During the period of its application, however, this standard, "business affected with a public interest," never acquired any precise meaning; and as a consequence lawyers were never able to identify all those qualities or attributes which invariably distinguished a business so affected from one not so affected. The best the Court ever offered by way of enlightenment was the following classification of businesses subject to regulation, prepared by Chief Justice Taft.[175] These were said to comprise: "(1) Those [businesses] which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities. (2) Certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest times, has survived the period of arbitrary laws by Parliament or Colonial legislatures for regulating all trades and callings. Such are those of the keepers of inns, cabs and grist mills. * * * (3) Businesses which though not public at their inception may be fairly said to have risen to be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly." Through application of this now outmoded formula the Court found it possible to sustain State laws regulating charges made by grain elevators,[176] stockyards,[177] and tobacco warehouses,[178] and fire insurance rates[179] and commissions paid to fire insurance agents.[180] Voided, because the businesses sought to be controlled were deemed to be not so affected, were State statutes fixing the price at which gasoline may be sold,[181] or at which ticket brokers may resell tickets purchased from theatres,[182] and limiting competition in the manufacture and sale of ice through the withholding of licenses to engage therein.[183] Nebbia _v._ New York In upholding, by a vote of five-to-four, a depression induced New York statute fixing prices at which fluid milk might be sold, the Court, in 1934, finally shelved the concept of "a business affected with a public interest."[184] Older decisions, insofar as they negatived a power to control prices in businesses found not "to be clothed with a public use" were now reviewed as resting, "finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. Price control, like any other form of regulation, is [now] unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty." Conceding that "the dairy industry is not, in the accepted sense of the phrase, a public utility"; that is, a "business affected with a public interest," the Court in effect declared that price control henceforth is to be viewed merely as an exercise by the State of its police power, and as such is subject only to the restrictions which due process of law imposes on arbitrary interference with liberty and property. Nor was the Court disturbed by the fact that a "scientific validity" had been claimed for the theories of Adam Smith relating to the "price that will clear the market." However much the minority might stress the unreasonableness of any artificial State regulation interfering with the determination of prices by "natural forces,"[185] the majority was content to note that the "due process clause makes no mention of prices" and that "the courts are both incompetent and unauthorized to deal with the wisdom of the policy adopted or the practicability of the law enacted to forward it." Having thus concluded that it is no longer the nature of the business which determines the validity of a regulation of its rates or charges but solely the reasonableness of the regulation, the Court had little difficulty in upholding, in Olsen _v._ Nebraska,[186] a State law prescribing the maximum commission which private employment agencies may charge. Rejecting the contentions of the employment agencies that the need for such protective legislation had not been shown, the Court held that differences of opinion as to the wisdom, need, or appropriateness of the legislation "suggest a choice which should be left to the States"; and that there was "no necessity for the State to demonstrate before us that evils persist despite the competition" between public, charitable, and private employment agencies. The older case of Ribnik _v._ McBride,[187] which founded the invalidation of similar legislation upon the now obsolete concept of a "business affected with a public interest" was expressly overruled. JUDICIAL REVIEW OF PUBLICLY DETERMINED RATES AND CHARGES Development In Munn _v._ Illinois,[188] its initial holding concerning the applicability of the Fourteenth Amendment to governmental price fixing,[189] the Court, not only asserted that governmental regulation of rates charged by public utilities and allied businesses was within the States' police power but added that the determination of such rates by a legislature was conclusive and not subject to judicial review or revision. Expanding the range of permissible governmental fixing of prices, the Court, in the Nebbia Case,[190] more recently declared that prices established for business in general would invite judicial condemnation only if "arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt." The latter standard of judicial appraisal, as will be subsequently noted, represents less of a departure from the principle enunciated in the Munn Case than that which the Court evolved, in the years following 1877, to measure the validity of State imposed public utility rates, and this difference in the judicial treatment of prices and rates accordingly warrants an explanation at the outset. Unlike operators of public utilities who, in return for the grant of certain exclusive, virtually monopolistic privileges by the governmental unit enfranchising them, must assume an obligation to provide continuous service, proprietors of other businesses are in receipt of no similar special advantages and accordingly are unrestricted in the exercise of their right to liquidate and close their establishments. At liberty, therefore, as public utilities invariably are not, to escape, by dissolution, the consequences of publicly imposed charges deemed to be oppressive, owners of ordinary business, presumably for that reason, have thus far been unable to convince the courts that they too, no less than public utilities, are in need of that protection which judicial review affords. Consistently with its initial pronouncement in the Munn Case, that the reasonableness of compensation allowed under permissible rate regulation presented a legislative rather than a judicial question, the Court, in Davidson _v._ New Orleans,[191] also rejected the contention that, by virtue of the due process clause, businesses, even though subject to control of their prices or charges, were nevertheless entitled to "just compensation." Less than a decade was to elapse, however, before the Court, appalled perhaps by prospective consequences of leaving business "at the mercy of the majority of the legislature," began to reverse itself. Thus, in 1886, Chief Justice Waite, in the Railroad Commission Cases,[192] warned that "this power to regulate is not a power to destroy; [and] the State cannot do that in law which amounts to a taking of property for public use without just compensation or without due process of law"; or, in other words, cannot impose a confiscatory rate. By treating "due process of law" and "just compensation" as equivalents, the Court, contrary to its earlier holding in Davidson _v._ New Orleans, was in effect asserting that the imposition of a rate so low as to damage or diminish private property ceased to be an exercise of a State's police power and became one of eminent domain. Nevertheless, even the added measure of protection afforded by the doctrine of the Railroad Commission Cases proved inadequate to satisfy public utilities; for through application of the latter the courts were competent to intervene only to prevent legislative imposition of a confiscatory rate, a rate so low as to be productive of a loss and to amount to a taking of property without just compensation. Nothing less than a judicial acknowledgment that when the "reasonableness" of legislative rates is questioned, the courts should finally dispose of the contention was deemed sufficient by such businesses to afford the relief desired; and although as late as 1888[193] the Court doubted that it possessed the requisite power, it finally acceded to the wishes of the utilities in 1890, and, in Chicago, M. & St. P.R. Co. _v._ Minnesota[194] ruled as follows: "The question of the reasonableness of a rate * * *, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination. If the company is deprived of the power of charging rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law * * *" Despite a last hour attempt, in Budd _v._ New York,[195] to reconcile Munn _v._ Illinois with Chicago, M. & St. P.R. Co. _v._ Minnesota by confining application of the latter decision to cases wherein rates had been fixed by a commission and denying its pertinence to rates directly imposed by a legislature, the Court, in Reagan _v._ Farmers' Loan and Trust Co.,[196] set at rest all lingering doubts as to the scope of judicial intervention by declaring that, "if a carrier," in the absence of a legislative rate, "attempted to charge a shipper an unreasonable sum," the Court, in accordance with common law principles, will pass on the reasonableness of its rates and has "jurisdiction * * * to award to the shipper any amount exacted * * * in excess of a reasonable rate; * * * The province of the courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of a carrier prescribes the rates."[197] Reiterating virtually the same principle in Smyth _v._ Ames,[198] the Court not only obliterated the distinction between confiscatory and unreasonable rates, but also contributed the additional observation that the requirements of due process are not met unless a court reviews not merely the reasonableness of a rate but also determines whether the rate permits the utility to earn a fair return on a fair valuation of its investment. Limitations on Judicial Review As to what courts will not do, when reviewing rate orders of a State commission, the following negative statements of the Supreme Court appear to have enduring value. As early as 1894, the Court asserted: "The courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; * * * [however, there can be no doubt] of their power and duty to inquire whether a body of rates * * * is unjust and unreasonable, * * *, and if found so to be, to restrain its operation."[199] And later, in 1910, although it was examining the order of a federal rate-making agency, the Court made a similar observation which appears to be equally applicable to the judicial review of regulations of State agencies. The courts cannot, "under the guise of exerting judicial power, usurp merely administrative functions by setting aside" an order of the commission within the scope of the power delegated to such commission, upon the ground that such power was unwisely or inexpediently exercised.[200] Also inferable from these early holdings, and effective to restrict the bounds of judicial investigation, is the notion that a distinction can be made between factual questions which give rise only to controversies as to the wisdom or expediency of an order issued by a commission and determinations of fact which bear on a commission's power to act; namely those questions which are inseparable from the constitutional issue of confiscation, and that judicial review does not extend to the former. This distinction is accorded adequate emphasis by the Court in Louisville & N.R. Co. _v._ Garrett,[201] in which it declared that "the appropriate question for the courts" is simply whether a "commission," in establishing a rate, "acted within the scope of its power" and did not violate "constitutional rights * * * by imposing confiscatory requirements" and that a carrier, contesting the rate thus established, accordingly was not entitled to have a court also pass upon a question of fact regarding the reasonableness of a higher rate charged by it prior to the order of the commission. All that need concern a court, it said, is the fairness of the proceeding whereby the commission determined that the existing rate was excessive; but not the expediency or wisdom of the commission's having superseded that rate with a rate regulation of its own. Likewise, with a view to diminishing the number of opportunities which courts may enjoy for invalidating rate regulations of State commissions, the Supreme Court has placed various obstacles in the path of the complaining litigant. Thus, not only must a person challenging a rate assume the burden of proof,[202] but he must present a case of "manifest constitutional invalidity";[203] and if, notwithstanding his effort, the question of confiscation remains in doubt, no relief will be granted.[204] Moreover, even though a public utility, which has petitioned a commission for relief from allegedly confiscatory rates, need not await indefinitely a decision by the latter before applying to a court for equitable relief,[205] the latter ought not to interfere in advance of any experience of the practical result of such rates.[206] In the course of time, however, a distinction emerged between ordinary factual determinations by State commissions and factual determinations which were found to be inseparable from the legal and constitutional issue of confiscation. In two older cases arising from proceedings begun in lower federal courts to enjoin rates, the Court initially adopted the position that it would not disturb such findings of fact insofar as these were supported by substantial evidence. Thus, in San Diego Land and Town Company _v._ National City,[207] the Court declared that: After a legislative body has fairly and fully investigated and acted, by fixing what it believes to be reasonable rates, the courts cannot step in and say its action shall be set aside because the courts, upon similar investigation, have come to a different conclusion as to the reasonableness of the rates fixed. "Judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulation as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use." And in a similar later case[208] the Court expressed even more clearly its reluctance to reexamine factual determinations of the kind just described. The Court is not bound "to reexamine and weigh all the evidence, * * *, or to proceed according to * * * [its] independent opinion as to what are proper rates. It is enough if * * * [the Court] cannot say that it was impossible for a fair-minded board to come to the result which was reached." Moreover, in reviewing orders of the Interstate Commerce Commission, the Court, at least in earlier years,[209] chose to be guided by approximately the same standards of appraisal as it had originally formulated for examining regulations of State commissions; and inasmuch as the following excerpt from its holding in Interstate Commerce Commission _v._ Union Pacific R. Co.[210] represents an adequate summation of the law as it stood prior to 1920, it is set forth below: "* * * questions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside if it appears that the rate is so low as to be confiscatory * * *; or if the Commission acted so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it; or if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. * * * In determining these mixed questions of law and fact, the Court confines itself to the ultimate question as to whether the Commission acted within its power. It will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling. * * * [The Commission's] conclusion, of course, is subject to review, but when supported by evidence is accepted as final; not that its decision, * * *, can be supported by a mere scintilla of proof--but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order." The Ben Avon Case These standards of review were abruptly rejected by the Court in Ohio Valley Water Company _v._ Ben Avon Borough,[211] decided in 1920, as being no longer sufficient to satisfy the requirements of due process. Unlike previous litigation involving allegedly confiscatory rate orders of State commissions, which had developed from rulings of lower federal courts in injunctive proceedings, this case reached the Supreme Court by way of appeal from a State appellate tribunal;[212] and although the latter did in fact review the evidence and ascertained that the State commission's findings of fact were supported by substantial evidence, it also construed the statute providing for review as denying to State courts "the power to pass upon the weight of such evidence." Largely on the strength of this interpretation of the applicable State statute, the Supreme Court held that when the order of a legislature, or of a commission, prescribing a schedule of maximum future rates is challenged as confiscatory, "the State must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment." Without departing from the ruling, previously enunciated in Louisville & N.R. Co. _v._ Garrett,[213] that the failure of a State to grant a statutory right of judicial appeal from a commission's regulation is not violative of due process as long as relief is obtainable by a bill in equity for injunction, the Court also held that the alternative remedy of injunction expressly provided by State law did not afford an adequate opportunity for testing judicially a confiscatory rate order. It conceded the principle stressed by the dissenting Justices that "where a State offers a litigant the choice of two methods of judicial review, of which one is both appropriate and unrestricted, the mere fact that the other which the litigant elects is limited, does not amount to a denial of the constitutional right to a judicial review."[214] History of the Valuation Question For almost fifty years the Court was to wander through a maze of conflicting formulas for valuing public service corporation property only to emerge therefrom in 1944 at a point not very far removed from Munn _v._ Illinois.[215] By holding, in 1942, in Federal Power Commission _v._ Natural Gas Pipeline Co.,[216] that the "Constitution does not bind rate-making bodies to the service of any single formula or combination of formulas," and in 1944, in Federal Power Commission _v._ Hope Gas Co.,[217] that "it is the result reached not the method employed which is controlling, * * * [that] it is not the theory but the impact of the rate order which counts, [and that] if the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end," the Court, in effect, abdicated from the position assumed in the Ben Avon Case.[218] Without surrendering the judicial power to declare rates unconstitutional on grounds of a substantive[219] deprivation of due process, the Court announced that it would not overturn a result deemed by it to be just simply because "the method employed [by a commission] to reach that result may contain infirmities. * * * [A] Commission's order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order * * * carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."[220] In dispensing with the necessity of observing any of the formulas for rate computation which previously had currency, the Court did not undertake to devise, by way of substitution, any discernible guide to aid it in ascertaining whether a so-called end result is unreasonable. It did intimate that rate-making "involves a balancing of the investor and consumer interests," which does not, however, "'insure that the business shall produce net revenues,' * * * From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock. * * * By that standard the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital."[221] Nevertheless, in the light of the court's concentration on the reasonableness of the final result rather than on the correctness of the methods employed to reach that result, it is conceivable that methods or formulas, now discredited in whole or in part, might continue to be observed by State commissions in drafting rate orders that will prove to be justiciably sustainable.[222] REGULATION OF PUBLIC UTILITIES (OTHER THAN RATES) In General By virtue of the nature of the business they carry on and the public's interest in it, public utilities are subject, as to their local business, to State regulation exerted either directly by legislature or by duly authorized administrative bodies.[223] But inasmuch as their property remains under the full protection of the Constitution, it follows that whenever this power of regulation is exerted in what the Court considers to be an "arbitrary" or "unreasonable" way and to be in effect an infringement upon the right of ownership, such exertion of power is void as repugnant to the due process clause.[224] Thus, a city cannot take possession of the equipment of a street railway company, the franchise of which has expired,[225] although it may subject said company to the alternative of accepting an inadequate price for its property or of ceasing operations and removing its property from the streets.[226] Likewise, a city, which is desirous of establishing a lighting system of its own, may not remove, without compensation, the fixtures of a lighting company already occupying the streets under a franchise;[227] but in erecting its own waterworks in competition with that of a company which has no exclusive charter, a municipality inflicts no unconstitutional deprivation.[228] Nor is the property of a telegraph company illegally taken by a municipal ordinance which demands, as a condition of the establishment of poles and conduits in the city streets, that positions be reserved for the city's wires, which shall be carried free of charge, and which provides for the moving of the conduits, when necessary, at company expense.[229] And, the fact that a State, by mere legislative or administrative fiat, cannot convert a private carrier into a common carrier will not protect a foreign corporation which has elected to enter a State, the Constitution and laws of which require that it operate its local private pipe line as a common carrier. Such foreign corporation is viewed as having waived its constitutional right to be secure against imposition of conditions which amount to a taking of property without due process of law.[230] Compulsory Expenditures The enforcement of uncompensated obedience to a regulation for the public health and safety is not an unconstitutional taking of property without due process of law.[231] Thus, where the applicable rule so required at the time of the granting of its charter, a water company may be compelled to furnish connections at its own expense to one residing on an ungraded street in which it voluntarily laid its lines.[232] However, if pipe and telephone lines are located on a right of way owned by a pipe line company, the latter cannot, without a denial of due process, be required to relocate such equipment at its own expense;[233] but if its pipes are laid under city streets, a gas company validly may be obligated to assume the cost of moving them to accommodate a municipal drainage system.[234] To require a turnpike company, as a condition of its taking tolls, to keep its road in repair and to suspend collection thereof, conformably to a State statute, until the road is put in good order, does not take property without due process of law, notwithstanding the fact that present patronage does not yield revenue sufficient to maintain the road in proper condition.[235] Nor is a railroad bridge company unconstitutionally deprived of its property when, in the absence of proof that the addition will not yield a reasonable return, it is ordered to widen its bridge by inclusion of a pathway for pedestrians and a roadway for vehicles.[236] Grade Crossings and Other Expenditures by Railroads.--When railroads are required to repair a viaduct under which they operate,[237] or to reconstruct a bridge or provide means for passing water for drainage through their embankment,[238] or to sprinkle that part of the street occupied by them,[239] their property is not taken without due process of law. But if an underground cattle-pass is to be constructed, not as a safety measure but as a means of sparing the farmer the inconvenience attendant upon the use of an existing and adequate grade crossing, collection of any part of the cost thereof from a railroad is a prohibited taking for private use.[240] As to grade crossing elimination, the rule is well established that the State may exact from railroads the whole, or such part, of the cost thereof as it deems appropriate, even though commercial highway users, who make no contribution whatsoever, benefit from such improvements. But, the power of the State in this respect is not unlimited. If its imposition is "arbitrary" and "unreasonable" it may be set aside; but to reach that conclusion, it may become necessary to consider certain relevant facts; e.g., whether a new highway on which an underpass is to be constructed is essential to the transportation needs of a community already well served by a crossing equipped with devices which are adequate for safety and convenience of a local traffic; whether the underpass is prescribed as part of a national system of federal aid highways for the furtherance of motor vehicle traffic, much of which is in direct competition with the railroad; whether the increase in such traffic will greatly decrease rail traffic and hence the revenue of the railroad; whether the amount of taxes paid by the railroads of the State, part of which is devoted to the upkeep of public highways used by motor carriers, is disproportionately higher than the amount paid by motor carriers.[241] Compellable Services The primary duty of a public utility being to serve on reasonable terms all those who desire the service it renders, it follows that a company cannot pick and choose and elect to serve only those portions of its territory which it finds most profitable, leaving the remainder to get along without the service which it alone is in a position to give. Compelling a gas company to continue serving specified cities as long as it continues to do business in other parts of the State entails therefore no unconstitutional deprivation.[242] Likewise a railway may be compelled to continue the service of a branch or part of a line although the operation involves a loss.[243] But even though a utility, as a condition of enjoyment of powers and privileges granted by the State, is under a continuing obligation to provide reasonably adequate service, and even though that obligation cannot be avoided merely because performance occasions financial loss, yet if a company is at liberty to surrender its franchise and discontinue operations, it cannot be compelled to continue at a loss.[244] Pursuant to the principle that the State may require railroads to provide adequate facilities suitable for the convenience of the communities served by them,[245] such carriers have been obligated to establish stations at proper places for the convenience of patrons,[246] to stop all their intrastate trains at county seats,[247] to run a regular passenger train instead of a mixed passenger and freight train,[248] to furnish passenger service on a branch line previously devoted exclusively to carrying freight,[249] to restore a siding used principally by a particular plant but available generally as a public track, and to continue, even though not profitable by itself, a sidetrack[250] as well as the upkeep of a switch-track leading from its main line to industrial plants.[251] However, a statute requiring a railroad without indemnification to install switches on the application of owners of grain elevators erected on its right of way was held void.[252] Whether a State order requiring transportation service is to be viewed as reasonable may necessitate consideration of such facts as the likelihood that pecuniary loss will result to the carrier, the nature, extent and productiveness of the carrier's intrastate business, the character of the service required, the public need for it, and its effect upon service already being rendered.[253] If the service required has no substantial relation to transportation, it will be deemed arbitrary and void, as in the case of an order requiring railroads to maintain cattle scales to facilitate trading in cattle,[254] and of a prohibition against letting down an unengaged upper berth while the lower berth was occupied.[255] Intercompany Railway Service.--"Since the decision in Wisconsin M. & P.R. Co. _v._ Jacobson, 179 U.S. 287 (1900), there can be no doubt of the power of a State, acting through an administrative body, to require railroad companies to make track connections. But manifestly that does not mean that a Commission may compel them to build branch lines, so as to connect roads lying at a distance from each other; nor does it mean that they may be required to make connections at every point where their tracks come close together in city, town and country, regardless of the amount of business to be done, or the number of persons who may utilize the connection if built. The question in each case must be determined in the light of all the facts, and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier. * * * If the order involves the use of property needed in the discharge of those duties which the carrier is bound to perform, then, upon proof of the necessity, the order will be granted, even though 'the furnishing of such necessary facilities may occasion an incidental pecuniary loss.' * * * Where, however, the proceeding is brought to compel a carrier to furnish a facility not included within its absolute duties, the question of expense is of more controlling importance. In determining the reasonableness of such an order the Court must consider all the facts--the places and persons interested, the volume of business to be affected, the saving in time and expense to the shipper, as against the cost and loss to the carrier."[256] Although a carrier is under a duty to accept goods tendered at its station, it cannot be required, upon payment simply for the service of carriage, to accept cars offered at an arbitrary connection point near its terminus by a competing road seeking to reach and use the former's terminal facilities. Nor may a carrier be required to deliver its cars to connecting carriers without adequate protection from loss or undue detention or compensation for their use.[257] But a carrier may be compelled to interchange its freight cars with other carriers under reasonable terms,[258] and to accept, for reshipment over its lines to points within the State, cars already loaded and in suitable condition.[259] Intercompany Discriminatory Railroad Service Charges.--Due process is not denied when two carriers, who wholly own and dominate a small connecting railroad, are prohibited from exacting higher charges from shippers accepting delivery over said connecting road than are collected from shippers taking delivery at the terminals of said carriers.[260] Nor is it "unreasonable" or "arbitrary" to require a railroad to desist from demanding freight in advance on merchandise received from one carrier while it accepts merchandise of the same character at the same point from another carrier without such prepayment.[261] Safety Regulations Applicable to Railroads The following regulations with reference to railroads have been upheld: a prohibition against operation on certain streets,[262] restrictions on speed, operations, etc., in business sections,[263] requirement of construction of a sidewalk across a right of way,[264] or removal of a track crossing a thoroughfare,[265] compelling the presence of a flagman at a crossing notwithstanding that automatic device might be cheaper and better,[266] compulsory examination of employees for color blindness,[267] full crews on certain trains,[268] specification of a type of locomotive headlight,[269] safety appliance regulations,[270] and a prohibition on the heating of passenger cars from stoves or furnaces inside or suspended from the cars.[271] Liabilities and Penalties A statute making the initial carrier[272] or the connecting or delivering carrier,[273] liable to the shipper for the nondelivery of goods is not unconstitutional; nor is a law which provides that a railroad shall be responsible in damages to the owner of property injured by fire communicated by its locomotive engines and which grants the railroad an insurable interest in such property along its route and authority to procure insurance against such liability.[274] Equally consistent with the requirements of due process are the following two enactments; the first, imposing on all common carriers a penalty for failure to settle within a reasonable specified period claims for freight lost or damaged in shipment and conditioning payment of that penalty upon recovery by the claimant in subsequent suit of more than the amount tendered,[275] and the second, levying double damages and an attorney's fee upon a railroad for failure to pay within a reasonable time after demand the amount claimed by an owner for stock injured or killed. However, only in the event that the application of the latter statute is limited to cases where the plaintiff has not demanded more than he recovered in court will its constitutionality be upheld;[276] but when the penalty allowed thereunder is exacted in a case in which the plaintiff demanded more than he sued for and recovered, a defendant railroad is arbitrarily deprived of its property without due process.[277] The requirements of fair play are similarly violated by a statute which, by imposing double liability for failure to pay the full amount of damages within 60 days after notice, unless the claimant recovers less than the amount offered in settlement, in effect penalizes a carrier for guessing incorrectly what a jury would award.[278] To penalize a carrier which has collected transportation charges in excess of established maximum rates by permitting a person wronged to sue for and collect as liquidated damages $500 plus a reasonable attorney's fee is to subject the carrier to a requirement so unreasonable as to be repugnant to the due process clause; for such liability is not only disproportionate to actual damages, but is being exacted under conditions which do not afford the carrier an adequate opportunity for safely testing the validity of the rates before any liability for the penalty attaches.[279] Where it appears, however, that the carrier had an opportunity to test the reasonableness of the rate, and that its deviation therefrom, by collection of an overcharge, did not proceed from any belief that the rate was invalid, the validity of the penalty imposed is not to be tested by comparison with the amount of the overcharge. Inasmuch as it is imposed as punishment for violation of a law, the legislature may adjust its amount to the public wrong rather than the private injury, and the only limitation which the Fourteenth Amendment imposes is that the penalty prescribed shall not be "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." In accordance with the latter standard, a statute granting an aggrieved passenger (who recovered $100 for an overcharge of 60 cents) the right to recover in a civil suit not less than $50 nor more than $300 plus costs and a reasonable attorney's fee is constitutional.[280] For like reasons, a statute requiring railroads to erect and maintain fences and cattle guards, and making them liable in double amount of damages for their failure to so maintain them is not unconstitutional.[281] Nor is a Nebraska law which establishes a minimum rate of speed for delivery of livestock and which requires every carrier violating the same to pay the owner of such livestock the sum of $10 per car per hour.[282] On the other hand, when a telephone company, in accordance with its established and uncontested regulations, suspends the service of a patron in arrears, infliction upon it of penalties aggregating $3,600, levied pursuant to a statute imposing fines of $100 per day for alleged discrimination, is so plainly arbitrary and oppressive as to take property without due process.[283] REGULATION OF CORPORATIONS, BUSINESS, PROFESSIONS, AND TRADES Domestic Corporations Although a corporation is the creation of a State which reserves the power to amend or repeal corporate charters, the retention of such power will not support the taking of the corporate property without due process of law. To terminate the life of a corporation by annulling its charter is not to confiscate its property but to turn it over to the stockholders after liquidation.[284] Conversely, unreasonable regulation, as by the imposition of confiscatory rates, although it ostensibly falls short of termination of the corporate existence, entails an invalid deprivation.[285] Foreign Corporations Foreign corporations also enjoy the protection which the due process clause affords; but such protection does not entitle them to enter another State or, once having been permitted to enter, to continue to do business therein.[286] The power of a State to exclude or to expel a foreign corporation being almost plenary as long as interstate commerce is not directly affected, it follows that a State may subject such entry or continued operation to conditions. Thus, a State law which requires the filing of articles with a local official as a condition prerequisite to the validity of conveyances of local realty to such corporations is not violative of due process.[287] Neither is a State statute which requires a foreign insurance company, as part of the price of entry, to maintain reserves computed by a specific percentage of premiums, including membership fees, received in all States.[288] Similarly a statute requiring corporations to dispose of farm land not necessary to the conduct of their business is not invalid as applied to a foreign hospital corporation, even though the latter, because of changed economic conditions, is unable to recoup its original investment from the sale which it is thus compelled to make.[289] Business: In General "The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. * * * Statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the State's competency."[290] Laws Prohibiting Trusts, Discrimination, Restraint of Trade.--A State act prohibiting trusts, etc., is not in conflict with the Fourteenth Amendment as to a person combining with others to pool and fix prices, divide net earnings, and prevent competition in the purchase and sale of grain.[291] Nor does the Fourteenth Amendment preclude a State from adopting a policy against all combinations of competing corporations and enforcing it even against combinations which may have been induced by good intentions and from which benefit and not injury may have resulted.[292] Nor is freedom of contract unconstitutionally abridged by a statute which prohibits retail lumber dealers from uniting in an agreement not to purchase materials from wholesalers selling directly to consumers in the retailers' localities,[293] nor by a law punishing combinations for "maliciously" injuring a rival in his business profession or trade.[294] Similarly, a prohibition of unfair discrimination by any one engaged in the manufacture or distribution of a commodity in general use for the purpose of intentionally destroying competition of any regular dealer in such commodity by making sales thereof at a lower rate in one section of the State than in another, after equalization for distance, effects no invalid deprivation of property or interference with freedom of contract.[295] Liberty of contract is infringed, however, by a law punishing dealers in cream who pay higher prices in one locality than in another. Although high bidding by strong buyers tends toward monopoly, the statute has no reasonable relation to such bidding, but infringes private rights whose exercise is not shown to produce evil consequences.[296] A law sanctioning contracts requiring that commodities identified by trade mark will not be sold by the vendee or subsequent vendees except at prices stipulated by the original vendor does not violate the due process clause.[297] Statutes Preventing Fraud in Sale of Goods.--Laws and ordinances tending to prevent frauds and requiring honest weights and measures in the sale of articles of general consumption have long been considered lawful exertions of the police power.[298] Thus, a prohibition on the issuance by other than an authorized weigher of any weight certificate for grain weighed at any warehouse or elevator where State weighers are stationed, or to charge for such weighing, is not unconstitutional.[299] Nor is a municipal ordinance requiring that commodities sold in load lots by weight be weighed by a public weigh-master within the city invalid as applied to one delivering coal from State-tested scales at a mine outside the city.[300] A statute requiring merchants to record sales in bulk not made in the regular course of business is also within the police power.[301] Similarly, the power of a State to prescribe standard containers to protect buyers from deception as well as to facilitate trading and to preserve the condition of the merchandise is not open to question. Accordingly, an administrative order issued pursuant to an authorizing statute and prescribing the dimensions, form, and capacity of containers for strawberries and raspberries is not arbitrary inasmuch as the form and dimensions bore a reasonable relation to the protection of the buyers and the preservation in transit of the fruit.[302] Similarly, an ordinance fixing standard sizes of bread loaves and prohibiting the sale of other sizes is not unconstitutional.[303] However, by a case decided in 1924, a "tolerance" of only two ounces in excess of the minimum weight of a loaf of bread is unreasonable when it is impossible to manufacture good bread without frequently exceeding the prescribed tolerance and is consequently unconstitutional;[304] but by one decided ten years later, regulations issued in furtherance of a statutory authorization which impose a rate of tolerance not to exceed three ounces to a pound of bread and requiring that the bread maintain the statutory minimum weight for not less than 12 hours after cooling are constitutional.[305] Likewise a law requiring that lard not sold in bulk should be put upon in containers holding one, three, or five pounds weight, or some whole multiple of these numbers, does not deprive sellers of their property without the process of law.[306] The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the State, in the exercise of the police power and in the promotion of fair dealing, to require that the nature of the product be fairly set forth.[307] Nor does a statute providing that the purchaser of harvesting or threshing machinery for his own use shall have a reasonable time after delivery for inspecting and testing it, and permitting recission of the contract if the machinery does not prove reasonably adequate, and further declaring any agreement contrary to its provisions to be against public policy and void, does not violate the due process clause.[308] Blue Sky Laws; Laws Regulating Boards of Trade, Etc.--In the exercise of its power to prevent fraud and imposition, a State may regulate trading in securities within its borders, require a license of those engaging in such dealing, make issuance of a license dependent on a public officer's being satisfied of the good repute of the applicants, and permit him, subject to judicial review of his findings, to revoke the same.[309] A State may forbid the giving of options to sell or buy at a future time any grain or other commodity.[310] It may also forbid sales on margin for future delivery;[311] and may prohibit the keeping of places where stocks, grain, etc., are sold but not paid for at the time, unless a record of the same be made and a stamp tax paid.[312] Making criminal any deduction by the purchaser from the actual weight of grain, hay, seed, or coal under a claim of right by reason of any custom or rule of a board of trade is a valid exercise of the police power and does not deprive the purchaser of his property without due process of law, nor interfere with his liberty of contract.[313] Trading Stamps.--A prohibitive license fee upon the use of trading stamps is not unconstitutional.[314] Banking The Fourteenth Amendment does not deny to States the power to forbid a business simply because it was permitted at common law; and therefore, where public interests so demand, a State may place the banking business under legislative control and prohibit it except under prescribed conditions. Accordingly, a statute subjecting State banks to assessments for a depositors' guaranty fund is within the police power of the States and does not deprive the banks of property without due process of law.[315] Also, a law requiring savings banks to turn over to the State deposits inactive for thirty years (when the depositor cannot be found), with provision for payment to the depositor or his heirs on establishment of the right, does not effect an invalid taking of the property of said banks; nor does a Kentucky statute requiring banks to turn over to the protective custody of that State deposits that have been inactive ten or twenty-five years (depending on the nature of the deposit).[316] The constitutional rights of creditors in an insolvent bank in the hands of liquidators are not violated by a later statute permitting reopening under a reorganization plan approved by the Court, the liquidating officer, and by three-fourths of the creditors.[317] Similarly, a Federal Reserve bank is not unlawfully deprived of business rights of liberty of contract by a law which allows State banks to pay checks in exchange when presented by or through a Federal Reserve bank, post office, or express company and when not made payable otherwise by a maker.[318] Loans, Interest, Assignments In fixing maximum rates of interest on money loaned within its borders, a State is acting clearly within its police power; and the details are within legislative discretion if not unreasonably or arbitrarily exercised.[319] Equally valid as an exercise of a State's police power is a requirement that assignments of future wages as security for debts of less than $200, to be valid, must be accepted in writing by the employer, consented to by the assignors, and filed in a public office. Such a requirement deprives neither the borrower nor the lender of his property without due process of law.[320] Insurance The relations generally of those engaged in the insurance business[321] as well as the business itself have been peculiarly subject to supervision and control.[322] The State may fix insurance rates and regulate the compensation of insurance agents.[323] It may impose a fine on "any person 'who shall act in any manner in the negotiation or transaction of unlawful insurance * * * with a foreign insurance company not admitted to do business [within said State].'"[324] It may forbid life insurance companies and their agents to engage in the undertaking business and undertakers to serve as life insurance agents.[325] Nor does a Virginia law which forbids the making of contracts of casualty or surety insurance, by companies authorized to do business therein, except through registered agents, which requires that such contracts applicable to persons or property in the State be countersigned by a registered local agent, and which prohibits such agents from sharing more than 50% of a commission with a nonresident broker, deprive authorized foreign casualty and surety insurers of due process.[326] And just as all banks may be required to contribute to a depositors' guaranty fund, so may all automobile liability insurers be required to submit to the equitable apportionment among them of applicants who are in good faith entitled to, but are financially unable to, procure such insurance through ordinary methods.[327] However, a statute which prohibits the assured from contracting directly with a marine insurance company outside the State for coverage of property within the State is invalid as a deprivation of liberty without due process of law.[328] For the same reason, a State may not prevent a citizen from concluding with a foreign life insurance company at its home office a policy loan agreement whereby the policy of his life is pledged as collateral security for a cash loan to become due upon default in payment of premiums, in which case the entire policy reserve might be applied to discharge the indebtedness. Authority to subject such an agreement to the conflicting provisions of domestic law is not deducible from the power of a State to license a foreign insurance company as a condition of its doing business therein.[329] A stipulation that policies of hail insurance shall take effect and become binding twenty-four hours after the hour in which an application is taken and further requiring notice by telegram of rejection of an application is not invalid.[330] Nor is any arbitrary restraint upon their liberty of contract imposed upon surety companies by a statute providing that any bond executed after its enactment for the faithful performance of a building contract shall inure to the benefit of materialmen and laborers, notwithstanding any provision of the bond to the contrary.[331] Likewise constitutional is a law requiring that a policy, indemnifying a motor vehicle owner against liability to persons injured through negligent operation, shall provide that bankruptcy of the insured shall not release the insurer from liability to an injured person.[332] If fire insurance companies, in case of total loss, are compelled to pay the amount for which the property was insured, less depreciation between the time of issuing the policy and the time of the loss, such insurers are not deprived of their property without due process of law.[333] Moreover, even though it has its attorney-in-fact located in Illinois, signs all its contracts there, and forwards therefrom all checks in payment of losses, a reciprocal insurance association, if it covers real property located in New York, may be compelled to comply with New York regulations which require maintenance of an office in that State and the countersigning of policies by an agent resident therein.[334] Also, to discourage monopolies and to encourage competition in the matter of rates, a State constitutionally may impose on all fire insurance companies connected with a tariff association fixing rates a liability or penalty to be collected by the insured of 25% in excess of actual loss or damage, stipulations in the insurance contract to the contrary notwithstanding.[335] A State statute by which a life insurance company, if it fails to pay upon demand the amount due under a policy after death of the insured, is made liable in addition for fixed damages, reasonable in amount, and for a reasonable attorney's fee is not unconstitutional even though payment is resisted in good faith and upon reasonable grounds.[336] It is also proper by law to cut off a defense by a life insurance company based on false and fraudulent statements in the application, unless the matter misrepresented actually contributed to the death of the insured.[337] A provision that suicide, unless contemplated when the application for a policy was made, shall be no defense is equally valid.[338] When a cooperative life insurance association is reorganized so as to permit it to do a life insurance business of every kind, policyholders are not deprived of their property without due process of law.[339] Similarly, when the method of liquidation provided by a plan of rehabilitation of a mutual life insurance company is as favorable to dissenting policyholders as would have been the sale of assets and pro rata distribution to all creditors, the dissenters are unable to show any taking without due process. Dissenters have no constitutional right to a particular form of remedy.[340] Professions, Trades, Occupations Employment Agencies.--An act imposing license fees for operating such agencies and prohibiting them from sending applicants to an employer who has not applied for labor does not deny due process of law.[341] Pharmacies.--A Pennsylvania law forbidding a corporation to own therein any drug store, excepting those owned and operated at the time of the enactment, unless all its stockholders are licensed pharmacists, violates the due process clause as applied to a foreign corporation, all of whose stockholders are not pharmacists, which sought to extend its business in Pennsylvania by acquiring and operating therein two additional stores.[342] Miscellaneous Business, Professions, Trades, and Occupations.--The practice of medicine, using this word in its most general sense, has long been the subject of regulation;[343] and in pursuance of its power a State may exclude osteopathic physicians from hospitals maintained by it or its municipalities;[344] and may regulate the practice of dentistry by prescribing qualifications that are reasonably necessary, requiring licenses, establishing a supervisory administrative board, and by prohibiting certain advertising regardless of its truthfulness.[345] But while statutes requiring pilots to be licensed[346] and railroad engineers to pass color blindness tests[347] have been sustained, an act making it a misdemeanor for a person to act as a railway passenger conductor without having had two years' experience as a freight conductor or brakeman is invalid.[348] Legislation has been upheld which regulated or required licenses for admissions to places of amusement,[349] grain elevators,[350] detective agencies,[351] sale of cigarettes,[352] or cosmetics,[353] and the resale of theatre tickets;[354] or which absolutely forbade the advertising of cigarettes,[355] or the use of a representation of the United States flag on an advertising medium,[356] the solicitation by a layman of business of collecting and adjusting claims,[357] the keeping of private markets within six squares of a public market,[358] the keeping of billiard halls except in hotels,[359] or the purchase by junk dealers of wire, copper, etc., without ascertaining the sellers' right to sell.[360] PROTECTION OF RESOURCES OF THE STATE Oil and Gas To prevent waste production may be prorated; the prohibition of wasteful conduct, whether primarily in behalf of the owners of gas in a common reservoir or because of the public interests involved is consistent with the Constitution.[361] Thus a statute which defines waste as including, in addition to its ordinary meaning, economic waste, surface waste, and waste incident to production in excess of transportation or marketing facilities or reasonable market demands, and which provides that whenever full production from a common source of supply can be obtained only under conditions constituting waste, a producer may take only such proportion of all that may be produced from such common source without waste, as the production of his wells bears to the total production of such common source, is not repugnant to the due process clause.[362] But whether a system of proration based on hourly potential is as fair as one based upon estimated recoverable reserves or some other combination of factors is a question for administrative and not judicial judgment. In a domain of knowledge still shifting and growing, and in a field where judgment is necessarily beset by the necessity of inferences bordering on the conjecture even for those learned in the art, it has been held to be presumptuous for courts, on the basis of conflicting expert testimony, to nullify an oil proration order, promulgated by an administrative commission in execution of a regulatory scheme intended to conserve a State's oil resources, as violative of due process.[363] On the other hand, where the evidence showed that an order, purporting to limit daily total production of a gas field and to prorate the allowed production among several wells, had for its real purpose, not the prevention of waste nor the undue drainage from the reserves of other well owners, but rather the compelling of pipe line owners to furnish a market to those who had no pipe line connections, the order was held void as a taking of private property for private benefit.[364] As authorized by statute the Oklahoma Corporation Commission, finding that existing low field prices for gas were resulting in economic and physical waste, issued orders fixing a minimum price for natural gas and requiring the Cities Service Company to take gas ratably from another producer in the same field at the dictated price. The orders were sustained by the Court as conservation measures.[365] Even though carbon black is more valuable than the gas from which it is extracted, and notwithstanding a resulting loss of investment in a plant for the manufacture of carbon black, a State, in the exercise of its police power, may forbid the use of natural gas for products, such as carbon black, in the production of which such gas is burned without fully utilizing for other manufacturing or domestic purposes the heat therein contained.[366] Likewise, for the purpose of regulating and adjusting coexisting rights of surface owners to underlying oil and gas, it is within the power of a State to prohibit the operators of wells from allowing natural gas, not conveniently necessary for other purposes, to come to the surface without its lifting power having been utilized to produce the greatest quantity of oil in proportion.[367] Protection of Property Damaged by Mining or Drilling of Wells An ordinance conditioning the right to drill for oil and gas within the city limits upon the filing of a bond in the sum of $200,000 for each well, to secure payment of damages from injuries to any persons or property resulting from the drilling operation, or maintenance of any well or structures appurtenant thereto, is consistent with due process of law, and is not rendered unreasonable by the requirement that the bond be executed, not by personal sureties, but by a bonding company authorized to do business in the State.[368] On the other hand, a Pennsylvania statute, which forbade the mining of coal under private dwellings or streets or cities by a grantor that had reserved the right to mine, was viewed as restricting the use of private property too much, and hence as a "taking" without due process of law.[369] Water A statute making it unlawful for a riparian owner to divert water into another State does not deprive him of property without due process of law. "The constitutional power of the State to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs. * * * What it has it may keep and give no one a reason for its will."[370] Apple and Citrus Fruit Industries A statute requiring the destruction of cedar trees to avoid the infecting with cedar rust of apple orchards within the vicinity of two miles is not unreasonable, notwithstanding the absence of provision for compensation for the trees thus removed or the decrease in the market value of realty caused by their destruction. Apple growing being one of the principal agricultural pursuits in Virginia and the value of cedar trees throughout that State being small as compared with that of apple orchards, the State was constitutionally competent to decide upon the destruction of one class of property in order to save another which, in the judgment of its legislature, is of greater value to the public.[371] With a similar object in view; namely, to protect the reputation of one of its major industries, Florida was held to possess constitutional authority to penalize the delivery for shipment in interstate commerce of citrus fruits so immature as to be unfit for consumption.[372] Fish and Game Over fish found within its waters, and over wild game, the State has supreme control.[373] It may regulate or prohibit fishing and hunting within its limits;[374] and for the effective enforcement of such restrictions, it may forbid the possession within its borders of special instruments of violations, such as nets, traps, and seines, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor.[375] To conserve for food fish found within its waters, a State constitutionally may provide that a reduction plant, processing fish for commercial purposes, may not accept more fish than can be used without deterioration, waste, or spoilage; and, as a shield against the covert depletion of its local supply, may render such restriction applicable to fish brought into the State from the outside.[376] Likewise, it is within the power of a State to forbid the transportation outside the State of game killed therein;[377] and to make illegal possession during the closed season even of game imported from abroad.[378] LIMITATIONS ON OWNERSHIP Zoning, Building Lines, Etc. By virtue of their possession of the police power, States and their municipal subdivisions may declare that in particular circumstances and in particular localities specific businesses, which are not nuisances _per se_ are to be deemed nuisances in fact and in law.[379] Consequently when, by an ordinance enacted in good faith, a municipality prohibited brickmaking in a designated area, the land of a brickmaker in said area was not taken without due process of law, although such land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable for brickmaking than for any other purpose, and had been acquired by him before it was annexed to the municipality, and had long been used as a brickyard.[380] On the same basis laws have been upheld which restricted the location of dairy or cow stables,[381] of livery stables,[382] of the grazing of sheep near habitations.[383] Also a State may declare the emission of dense smoke in cities or populous neighborhoods a nuisance and restrain it; and regulations to that effect are not invalid even though they affect the use of property or subject the owner to the expense of complying with their terms.[384] Not only may the height of buildings be regulated;[385] but it also is permissible to create a residential district in a village and to exclude therefrom apartment houses, retail stores, and billboards. Before holding unconstitutional an ordinance establishing such a district, it must be shown to be clearly arbitrary and unreasonable and to have no substantial relation to the public health, safety, or general welfare.[386] On the other hand, erection of a home for the aged within a residential district cannot be made to depend upon the consent of owners of two-thirds of the property within 400 feet of the site thereof;[387] nor may the interests of nonassenting property owners be ignored by an ordinance which requires municipal officers to establish building lines in a block on request of owners of two-thirds of the property therein.[388] But ordinances requiring lot owners, when constructing new buildings, to set them back a certain distance from the street lines is constitutional unless clearly arbitrary or unreasonable.[389] However, colored persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, and vice versa. Such a prohibition, the practical effect of which is to prevent the sale of lots in such blocks to colored persons, violates the constitutional prohibitions against interference with property rights except by due process of laws; and cannot be sustained on the ground that it will promote public peace by preventing race conflicts.[390] Safety Regulations As a legitimate exercise of the police power calculated to promote public safety and diminish fire hazards, municipal ordinances have been sustained which prohibit the storage of gasoline within 300 feet of any dwelling,[391] or require that all tanks with a capacity of more than ten gallons, used for the storage of gasoline, be buried at least three feet under ground,[392] or which prohibit washing and ironing in public laundries and wash houses, within defined territorial limits, from 10 p.m. to 6 a.m.[393] Equally sanctioned by the Fourteenth Amendment is the demolition and removal by cities of wooden buildings erected within defined fire limits contrary to regulations in force at the time.[394] Nor does construction of property in full compliance with existing laws confer upon the owner an immunity against exercise of the police power. Thus, a 1944 amendment to a Multiple Dwelling Law, requiring installation of automatic sprinklers in lodginghouses of nonfireproof construction erected prior to said enactment, does not, as applied to a lodginghouse constructed in 1940 in conformity with all laws then applicable, deprive the owner thereof of due process, even though compliance entails an expenditure of $7,500 on a property worth only $25,000.[395] THE POLICE POWER General According to settled principles, the police power of a State must be held to embrace the authority not only to enact directly quarantine[396] and health laws of every description but also to vest in municipal subdivisions a capacity to safeguard by appropriate means public health, safety and morals. The manner in which this objective is to be accomplished is within the discretion of the State and its localities, subject only to the condition that no regulation adopted by either shall contravene the Constitution or infringe any right granted or secured by that instrument.[397] Health Measures Protection of Water Supply.--A State may require the removal of timber refuse from the vicinity of a watershed for a municipal water supply to prevent the spread of fire and consequent damage to such watershed.[398] Garbage.--An ordinance for cremation of garbage and refuse at a designated place as a means for the protection of the public health is not a taking of private property without just compensation even though such garbage and refuse may have some elements of value for certain purposes.[399] Sewers.--Compelling property owners to connect with a publicly maintained system of sewers and enforcing that duty by criminal penalties does not violate the due process clause.[400] Food and Drugs, Etc.--"The power of the State to * * * prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established";[401] and statutes forbidding or regulating the manufacture of oleomargarine have been upheld as a valid exercise of such power.[402] For the same reasons, statutes ordering the destruction of unsafe and unwholesome food[403], prohibiting the sale and authorizing confiscation of impure milk[404] have been sustained, notwithstanding that such articles had a value for purposes other than food. There also can be no question of the authority of the State, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors,[405] or the sale of spectacles by an establishment not in charge of a physician or optometrist.[406] Nor is it any longer possible to doubt the validity of State regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs.[407] Milk.--Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat,[408] or of condensed milk made from skimmed milk rather than whole milk,[409] or of food preservatives containing boric acid.[410] Similarly, a statute which prohibits the sale of milk to which has been added any fat or oil other than milk fat, and which has, as one of its purposes, the prevention of fraud and deception in the sale of milk products, does not, when applied to "filled milk" having the taste, consistency, and appearance of whole milk products, violate the due process clause. Filled milk is inferior to whole milk in its nutritional content; and cannot be served to children as a substitute for whole milk without producing a dietary deficiency.[411] However, a statute forbidding the use of shoddy, even when sterilized, was held to be arbitrary and therefore invalid.[412] Protection of the Public Morals Gambling and Lotteries.--Unless effecting a clear, unmistakable infringement of rights securely by fundamental law, legislation suppressing gambling will be upheld by the Court as concededly within the police power of a State.[413] Accordingly, a State may validly make a judgment against those winning money a lien upon the property in which gambling is conducted with the owner's knowledge and consent.[414] For the same reason, lotteries, including those operated under a legislative grant, may be forbidden, irrespective of any particular equities.[415] Red Light Districts.--An ordinance prescribing limits in a city outside of which no woman of lewd character shall dwell does not deprive persons owning or occupying property in or adjacent to said limits of any rights protected by the Constitution.[416] Sunday Blue Laws.--The Supreme Court has uniformly recognized State laws relating to the observance of Sunday as representing a legitimate exercise of the police power. Thus, a law forbidding the keeping open of barber shops on Sunday is constitutional.[417] Intoxicating Liquor.--"* * * on account of their well-known noxious qualities and the extraordinary evils shown by experience to be consequent upon their use, a State * * * [is competent] to prohibit [absolutely the] manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders * * *."[418] And to implement such prohibition, a State has the power to declare that places where liquor is manufactured or kept shall be deemed common nuisances;[419] and even to subject an innocent owner to the forfeiture of his property for the acts of a wrongdoer.[420] Regulation of Motor Vehicles and Carriers The highways of a State are public property, the primary and preferred use of which is for private purposes; their uses for purposes of gain may generally be prohibited by the legislature or conditioned as it sees fit.[421] In limiting the use of its highways for intrastate transportation for hire, a State reasonably may provide that carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past shall be entitled to licenses as a matter of right, but that the licensing of those whose service over the route began later than the date specified shall depend upon public convenience and necessity.[422] To require private contract carriers for hire to obtain a certificate of convenience and necessity, which is not granted if the service of common carriers is impaired thereby, and to fix minimum rates applicable thereto which are not less than those prescribed for common carriers is valid as a means of conserving highways;[423] but any attempt to convert private carriers into common carriers,[424] or to subject them to the burdens and regulations of common carriers, without expressly declaring them to be common carriers, is violative of due process.[425] In the absence of legislation by Congress a State may, in protection of the public safety, deny an interstate motor carrier the use of an already congested highway.[426] In exercising its authority over its highways, on the other hand, a State is limited not merely to the raising of revenue for maintenance and reconstruction, or to regulations as to the manner in which vehicles shall be operated, but may also prevent the wear and hazards due to excessive size of vehicles and weight of load. Accordingly, a statute limiting to 7,000 pounds the net load permissible for trucks is not unreasonable.[427] No less constitutional is a municipal traffic regulation which forbids the operation in the streets of any advertising vehicle, excepting vehicles displaying business notices or advertisements of the products of the owner and not used mainly for advertising; and such regulation may be validly enforced to prevent an express company from selling advertising space on the outside of its trucks. Inasmuch as it is the judgment of local authorities that such advertising affects public safety by distracting drivers and pedestrians, courts are unable to hold otherwise in the absence of evidence refuting that conclusion.[428] Any appropriate means adopted to insure compliance and care on the part of licensees and to protect other highway users being consonant with due process, a State may also provide that one, against whom a judgment is rendered for negligent operation and who fails to pay it within a designated time, shall have his license and registration suspended for three years, unless, in the meantime, the judgment is satisfied or discharged.[429] By the same token a nonresident owner who loaned his automobile in another State, by the law of which he was immune from liability for the borrower's negligence, and who was not in the State at the time of an accident, is not subjected to any unconstitutional deprivation by a law thereof, imposing liability on the owner for the negligence of one driving the car with the owner's permission.[430] Compulsory automobile insurance is so plainly valid as to present no federal question.[431] Succession to Property When a New York Decedent Estate Law, effective after 1930, grants for the first time to a surviving spouse a right of election to take as in intestacy, and the husband, by executing in 1934 a codicil to his will drafted in 1929, made this provision operative, his widow, notwithstanding her waiver in 1922 of any right in her husband's estate, may avail herself of such right of election. The deceased husband's heirs cannot contend that the impairment of the widow's waiver by subsequent legislation deprived his estate of property without due process of law. Rights of succession to property are of statutory creation. Accordingly, New York could have conditioned any further exercise of testamentary power upon the giving of right of election to the surviving spouse regardless of any waiver however formally executed.[432] Administration of Estates.--Even after the creation of testamentary trust, a State retains the power to devise new and reasonable directions to the trustee to meet new conditions arising during its administration, especially such as the depression presented to trusts containing mortgages. Accordingly, no constitutional right is violated by the retroactive application to an estate on which administration had already begun of a statute which had the effect of taking away a remainderman's right to judicial examination of the trustee's computation of income. Judicial rules, promulgated prior to such statute and which were more favorable to the interests of remaindermen, can be relied upon by the latter only insofar as said rules were intended to operate retroactively; for the decedent, in whose estate the remaindermen had an interest, died even before such court rules were established. If a property right in a particular rule of income allotment in salvage proceedings vested at all, it would seem to have done so at the death of the decedent or testator.[433] Abandoned Property.--As applied to insurance policies on the lives of New York residents issued by foreign corporations for delivery in New York, where the insured persons continued to be residents and the beneficiaries were resident at the maturity date of the policies, a New York Abandoned Property Law requiring payment to the State of money owing by life insurers and remaining unclaimed for seven years does not deprive such foreign companies of property without due process. The relationship between New York and its residents who abandon claims against foreign insurance companies, and between New York and foreign insurance companies doing business therein is sufficiently close to give New York jurisdiction.[434] In Standard Oil Co. _v._ New Jersey,[435] a sharply divided Court held recently that due process is not violated by a statute escheating to the State shares of stock in a domestic corporation and unpaid dividends declared thereon, even though the last-known owners were nonresidents and the stock was issued and the dividends were held in another State. The State's power over the debtor corporation gives it power to seize the debts or demands represented by the stock and dividends. Vested Rights, Remedial Rights, Political Candidacy Inasmuch as the right to become a candidate for State office is a privilege only of State citizenship, an unlawful denial of such right is not a denial of a right of "property."[436] However, an existing right of action to recover damages for an injury is property, which a legislature has no power to destroy.[437] Thus, the retroactive repeal of a provision which made directors liable for moneys embezzled by corporate officers, by preventing enforcement of a liability which already had arisen, deprived certain creditors of their property without due process of law.[438] But while a vested cause of action is property, a person has no property, in the constitutional sense, in any particular form of remedy; and is guaranteed only the preservation of a substantial right to redress by any effective procedure.[439] Accordingly, a statute creating an additional remedy for enforcing stockholders' liability is not, as applied to stockholders then holding stock, violative of due process.[440] Nor is a law which lifts a statute of limitations and make possible a suit, theretofore barred, for the value of certain securities. "The Fourteenth Amendment does not make an act of State legislation void merely because it has some retrospective operation. * * * Some rules of law probably could not be changed retroactively without hardship and oppression, * * *, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is _per se_ an offense against the Fourteenth Amendment."[441] Man's Best Friend A statute providing that no dog shall be entitled to the protection of the law unless placed upon the assessment rolls, and that in a civil action for killing a dog the owner cannot recover beyond the value fixed by himself in the last assessment preceding the killing is within the police power of the State.[442] Control of Local Units of Government The Fourteenth Amendment does not deprive a State of the power to determine what duties may be performed by local officers, nor whether they shall be appointed or popularly elected.[443] Its power over the rights and property of cities held and used for governmental purposes was unaltered by the ratification thereof.[444] Thus, notwithstanding that it imposes liability irrespective of the power of a city to have prevented the violence, a statute requiring cities to indemnify owners of property damaged by mobs or during riots effects no unconstitutional deprivation of the property of such municipalities.[445] Likewise, a person obtaining a judgment against a municipality for damages resulting from a riot is not deprived of property without due process of law by an act which so limits the municipality's taxing power as to prevent collection of funds adequate to pay it. As long as the judgment continues as an existing liability unconstitutional deprivation is experienced.[446] Local units of government obliged to surrender property to other units newly created out of the territory of the former cannot successfully invoke the due process clause,[447] nor may taxpayers allege any unconstitutional deprivation as the result of changes in their tax burden attendant upon the consolidation of contiguous municipalities.[448] Nor is a statute requiring counties to reimburse cities of the first class but not other classes for rebates allowed for prompt payment of taxes in conflict with the due process clause.[449] TAXATION In General It was not contemplated that the adoption of the Fourteenth Amendment would restrain or cripple the taxing power of the States.[450] Rather, the purpose of the amendment was to extend to the residents of the States the same protection against arbitrary State legislation affecting life, liberty, and property as was afforded against Congress by the Fifth Amendment.[451] Public Purpose Inasmuch as public moneys cannot be expended for other than public purposes, it follows that an exercise of the taxing power for merely private purposes is beyond the authority of the States.[452] Whether a use is public or private is ultimately a judicial question, however, and in the determination thereof the Court will be influenced by local conditions and by the judgments of State tribunals as to what are to be deemed public uses in any State.[453] Taxes levied for each of the following listed purposes have been held to be for a public use: city coal and fuel yard,[454] State bank, warehouse, elevator, flour-mill system, and homebuilding projects,[455] society for preventing cruelty to animals (dog license tax),[456] railroad tunnel,[457] books for school children attending private as well as public schools,[458] and relief of unemployment.[459] Other Considerations Affecting Validity: Excessive Burden; Ratio of Amount to Benefit Received When the power to tax exists, the extent of the burden is a matter for the discretion of the lawmakers;[460] and the Court will refrain from condemning a tax solely on the ground that it is excessive.[461] Nor can the constitutionality of the power to levy taxes be made to depend upon the taxpayer's enjoyment of any special benefit from use of the funds raised by taxation.[462] Estate, Gift, and Inheritance Taxes The power of testamentary disposition and the privilege of inheritance being legitimate subjects of taxation, a State may apply its inheritance tax to either the transmission, or the exercise of the legal power of transmission, of property by will or descent, or to the legal privilege of taking property by devise or descent.[463] Accordingly, an inheritance tax law, enacted after the death of a testator, but before the distribution of his estate, constitutionally may be imposed on the shares of legatees, notwithstanding that under the law of the State in effect on the date of such enactment, ownership of the property passed to the legatees upon the testator's death.[464] Equally consistent with due process is a tax on an _inter vivos_ transfer of property by deed intended to take effect upon the death of the grantor.[465] The due process clause places no restriction on a State as to the time at which an inheritance tax shall be levied or the property valued for purposes of such a tax; and for that reason a graduated tax on the transfer of contingent remainders, undiminished by the value of an intervening life estate but not payable until after the death of the life tenant, is valid.[466] Also, when a power of appointment has been granted by deed, transfer tax upon the exercise of the power by will is not a taking of property without due process of law, even though the instrument creating the power was executed prior to enactment of the taxing statute.[467] Likewise when a transfer tax law did not become effective until after a deed creating certain remainders had been executed, but the State court applied the tax on the theory that the vesting actually occurred after the tax law became operative, no denial of due process resulted. "* * *, the statute unquestionably might have made the tax applicable to this transfer, * * * [and the Court need] * * * not inquire * * * into the reasoning by which * * *" the State held the statute operative.[468] On the other hand, when remainders indisputably vest at the time of the creation of a trust and a succession tax is enacted thereafter, the imposition of said tax on the transfer of such remainder is unconstitutional.[469] But where the remaindermen's interests are contingent and do not vest until the donor's death subsequent to the adoption of the statute, the tax is valid.[470] Another example of valid retroactive taxation is to be found in a New York statute amending a 1930 estate tax law. The amendment required inclusion in the decedent's gross estate, for tax computation purposes, of property in respect of which the decedent exercised after 1930, by will, a nongeneral power of appointment created prior to that year. The amendment reached such transfers under powers of appointment as under the previous statute escaped taxation. In sustaining application of the amendment, the Court held that the inclusion in the gross estate of property never owned by the decedent, but appointed by her will under a limited power which could not be exercised in favor of the decedent, her creditors, or her estate, did not deny due process to those who inherited the decedent's property, even though, because the tax rate was progressive, the net amount they inherited was less than it would have been if the appointed property had not been included in the gross estate.[471] In summation, the Court has noted that insofar as retroactive taxation of vested gifts has been voided, the justification therefor has been that "the nature or amount of the tax could not reasonably have been anticipated by the taxpayer at the time of the particular voluntary act which the [retroactive] statute later made the taxable event * * * Taxation, * * *, of a gift which * * * [the donor] might well have refrained from making had he anticipated the tax, * * * [is] thought to be so arbitrary * * * as to be a denial of due process."[472] Other Types of Taxes Income Taxes.--Any attempt by a State to measure a tax on one person's income by reference to the income of another is contrary to due process as guaranteed by the Fourteenth Amendment. Thus a husband cannot be taxed on the combined total of his and his wife's incomes as shown by separate returns, where her income is her separate property and where, by reason of the tax being graduated, its amount exceeded the sum of the taxes which would have been due had their separate incomes been separately assessed.[473] Moreover, a tax on income, unlike a gift tax, is not necessarily unconstitutional, because retroactive. Taxpayers cannot complain of arbitrary action or assert surprise in the retroactive apportionment of tax burdens to income when that is done by the legislature at the first opportunity after knowledge of the nature and amount of the income is available.[474] Franchise Taxes.--A city ordinance imposing annual license taxes on light and power companies is not violative of the due process clause merely because the city has entered the power business in competition with such companies.[475] Nor does a municipal charter authorizing the imposition upon a local telegraph company of a tax upon the lines of the company within its limits at the rate at which other property is taxed, but upon an arbitrary valuation per mile, deprive the company of its property without due process of law, inasmuch as the tax is a mere franchise or privilege tax.[476] Severance Taxes.--A State excise on the production of oil which extends to the royalty interest of the lessor in the oil produced under an oil lease as well as to the interest of the lessee engaged in the active work of production, the tax being apportioned between these parties according to their respective interest in the common venture, is not arbitrary as regards the lessor, but consistent with due process.[477] Real Property Taxes (Assessment).--The maintenance of a high assessment in the face of declining value is merely another way of achieving an increase in the rate of property tax. Hence, an over-assessment constitutes no deprivation of property without due process of law.[478] Likewise, land subject to mortgage may be taxed for its full value without deduction of the mortgage debt from the valuation.[479] Real Property Taxes: Special Assessments.--A State may defray the entire expense of creating, developing, and improving a political subdivision either from funds raised by general taxation, or by apportioning the burden among the municipalities in which the improvements are made, or by creating, or authorizing the creation of, tax districts to meet sanctioned outlays.[480] Where a State statute authorizes municipal authorities to define the district to be benefited by a street improvement and to assess the cost of the improvement upon the property within the district in proportion to benefits, their action in establishing the district and in fixing the assessments on included property, after due hearing of the owners as required by the statute cannot, when not arbitrary or fraudulent, be reviewed under the Fourteenth Amendment upon the ground that other property benefited by the improvement was not included.[481] It is also proper to impose a special assessment for the preliminary expenses of an abandoned road improvement, even though the assessment exceeds the amount of the benefit which the assessors estimated the property would receive from the completed work.[482] Likewise a levy upon all lands within a drainage district of a tax of twenty-five cents per acre to defray preliminary expenses does not unconstitutionally take the property of landowners within that district who may not be benefited by the completed drainage plans.[483] On the other hand, when the benefit to be derived by a railroad from the construction of a highway will be largely offset by the loss of local freight and passenger traffic, an assessment upon such railroad is violative of due process,[484] whereas any gains from increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon.[485] Also the fact that the only use made of a lot abutting on a street improvement is for a railway right of way does not make invalid, for lack of benefits, an assessment thereon for grading, curbing, and paving.[486] However, when a high and dry island was included within the boundaries of a drainage district from which it could not be benefited directly or indirectly, a tax on such island was held to be a deprivation of property without due process of law.[487] Finally, a State may levy an assessment for special benefits resulting from an improvement already made[488] and may validate an assessment previously held void for want of authority.[489] JURISDICTION TO TAX Land Prior even to the ratification of the Fourteenth Amendment, it was settled principle that a State could not tax land situated beyond its limits; and subsequently elaborating upon that principle the Court has said that "* * *, we know of no case where a legislature has assumed to impose a tax upon land within the jurisdiction of another State, much less where such action has been defended by a court."[490] Insofar as a tax payment may be viewed as an exaction for the maintenance of government in consideration of protection afforded, the logic sustaining this rule is self-evident. Tangible Personalty As long as tangible personal property has a situs within its borders, a State validly may tax the same, whether directly through an _ad valorem_ tax or indirectly through death taxes, irrespective of the residence of the owner.[491] By the same token, if tangible personal property makes only occasional incursions into other States, its permanent situs remains in the State of origin, and is taxable only by the latter.[492] The ancient maxim, _mobilia sequuntur personam_, which had its origin when personal property consisted in the main of articles appertaining to the person of the owner, yielded in modern times to the "law of the place where the property is kept and used." In recent years, the tendency has been to treat tangible personal property as "having a situs of its own for the purpose of taxation, and correlatively to * * * exempt [it] at the domicile of its owner."[493]The benefit-protection theory of taxation, upon which the Court has in fact relied to sustain taxation exclusively by the situs State, logically would seem to permit taxation by the domiciliary State as well as by the nondomiciliary State in which the tangibles are situate, especially when the former levies the tax on the owner in terms of the value of the tangibles. Thus far, however, the Court has taken the position that when the tangibles have a situs elsewhere, the domiciliary State can neither control such property nor extend to it or to its owner such measure of protection as would be adequate to meet the jurisdictional requirements of due process. Intangible Personalty General.--To determine whether a State, or States, may tax intangible personal property, the Court has applied the fiction, _mobilia sequuntur personam_ and has also recognized that such property may acquire, for tax purposes, a business or commercial situs where permanently located; but it has never clearly disposed of the issue as to whether multiple personal property taxation of intangibles is consistent with due process. In the case of corporate stock, however, the Court has obliquely acknowledged that the owner thereof may be taxed at his own domicile, at the commercial situs of the issuing corporation, and at the latter's domicile; but, as of the present date, constitutional lawyers are speculating whether the Court would sustain a tax by all three jurisdictions, or by only two of them, and, if the latter, which two, the State of the commercial situs and of the issuing corporation's domicile, or the State of the owner's domicile and that of the commercial situs.[494] Taxes on Intangibles Sustained.--Thus far, the Court has sustained the following personal property taxes on intangibles: (1) A debt held by a resident against a nonresidence, evidenced by a bond of the debtor and secured by a mortgage on real estate in the State of the debtor's residence.[495] (2) A mortgage owned and kept outside the State by a nonresident but on land within the State.[496] (3) Investments, in the form of loans to residents, made by a resident agent of a nonresident creditor, are taxable to the nonresident creditor.[497] (4) Deposits of a resident in a bank in another State, where he carries on a business and from which these deposits are derived, but belonging absolutely to him and not used in the business, are subject to a personal property tax in the city of his residence, whether or not they are subject to tax in the State where the business is carried on. The tax is imposed for the general advantage of living within the jurisdiction [benefit-protection theory], and may be measured by reference to the riches of the person taxed.[498] (5) Membership owned by a nonresident in a domestic exchange, known as a chamber of commerce.[499] (6) Membership by a resident in a stock exchange located in another State. "Double taxation" the Court observed "by one and the same State is not" prohibited "by the Fourteenth Amendment; much less is taxation by two States upon identical or closely related property interests falling within the jurisdiction of both, forbidden."[500] (7) A resident owner may be taxed on stock held in a foreign corporation that does no business and has no property within the taxing State. The Court also added that "undoubtedly the State in which a corporation is organized may * * *, [tax] of all its shares whether owned by residents or nonresidents."[501] (8) Stock in a foreign corporation owned by another foreign corporation transacting its business within the taxing State. The Court attached no importance to the fact that the shares were already taxed by the State in which the issuing corporation was domiciled and might also be taxed by the State in which the issuing corporation was domiciled and might also be taxed by the State in which the stock owner was domiciled; or at any rate did not find it necessary to pass upon the validity of the latter two taxes. The present levy was deemed to be tenable on the basis of the benefit-protection theory; namely, "the economic advantages realized through the protection, at the place * * *, [of business situs] of the ownership of rights in intangibles * * *"[502] (9) Shares owned by nonresident shareholders in a domestic corporation, the tax being assessed on the basis of corporate assets and payable by the corporation either out of its general fund or by collection from the shareholder. The shares represent an aliquot portion of the whole corporate assets, and the property right so represented arises where the corporation has its home, and is therefore within the taxing jurisdiction of the State, notwithstanding that ownership of the stock may also be a taxable subject in another State.[503] (10) A tax on the dividends of a corporation may be distributed ratably among stockholders regardless of their residence outside the State, the stockholders being the ultimate beneficiaries of the corporation's activities within the taxing State and protected by the latter and subject to its jurisdiction.[504] This tax, though collected by the corporation, is on the transfer to a stockholder of his share of corporate dividends within the taxing State, and is deducted from said dividend payments.[505] (11) Stamp taxes on the transfer within the taxing State by one nonresident to another of stock certificates issued by a foreign corporation;[506] and upon promissory notes executed by a domestic corporation, although payable to banks in other States.[507] These taxes, however, were deemed to have been laid, not on the property, but upon an event, the transfer in one instance, and execution, in the latter, which took place in the taxing State. Taxes on Intangibles Invalidated.--The following personal property taxes on intangibles have not been upheld: (1) Debts evidenced by notes in safekeeping within the taxing State, but made and payable and secured by property in a second State and owned by a resident of a third State.[508] (2) A property tax sought to be collected from a life beneficiary on the corpus of a trust composed of property located in another State and as to which said beneficiary had neither control nor possession, apart from the receipt of income therefrom.[509] However, a personal property tax may be collected on one-half of the value of the corpus of a trust from a resident who is one of the two trustees thereof, notwithstanding that the trust was created by the will of a resident of another State in respect of intangible property located in the latter State, at least where it does not appear that the trustee is exposed to the danger of other _ad valorem_ taxes in another State.[510] The first case, Brooke _v._ Norfolk,[511] is distinguishable by virtue of the fact that the property tax therein voided was levied upon a resident beneficiary rather than upon a resident trustee in control of nonresident intangibles. Different too is Safe Deposit and Trust Co. _v._ Virginia,[512] where a property tax was unsuccessfully demanded of a nonresident trustee with respect to nonresident intangibles under its control. (3) A tax, measured by income, levied on trust certificates held by a resident, representing interests in various parcels of land (some inside the State and some outside), the holder of the certificates, though without a voice in the management of the property, being entitled to a share in the net income and, upon sale of the property, to the proceeds of the sale.[513] Transfer Taxes (Inheritance, Estate, Gift Taxes).--Being competent to regulate exercise of the power of testamentary disposition and the privilege of inheritance, a State may base its succession taxes upon either the transmission, or an exercise of the legal power of transmission, of property by will or by descent, or the enjoyment of the legal privilege of taking property by devise or descent.[514] But whatever may be the justification of their power to levy such taxes, States have consistently found themselves restricted by the rule, established as to property taxes in 1905 in Union Refrigerator Transit Co. _v._ Kentucky,[515] and subsequently reiterated in Frick _v._ Pennsylvania[516] in 1925, which precludes imposition of transfer taxes upon tangible personal property by any State other than the one in which such tangibles are permanently located or have an actual situs. In the case of intangibles, however, the States have been harassed by the indecision of the Supreme Court; for to an even greater extent than is discernible in its treatment of property taxes on intangibles, it has oscillated in upholding, then rejecting, and again currently sustaining the levy by more than one State of death taxes upon intangibles comprising the estate of a decedent. Until 1930, transfer taxes upon intangibles levied by both the domiciliary as well as nondomiciliary, or situs State, were with rare exceptions approved. Thus, in Bullen _v._ Wisconsin,[517] the domiciliary State of the creator of a trust was held competent to levy an inheritance tax, upon the death of the settlor, on his trust fund consisting of stocks, bonds, and notes kept and administered in another State and as to which the settlor reserved the right to control disposition and to direct payment of income for life, such reserved powers being equivalent to a fee. Cognizance was taken of the fact that the State in which these intangibles had their situs had also taxed the trust. Levy of an inheritance tax by a nondomiciliary State was sustained on similar grounds in Wheeler _v._ Sohmer, wherein it was held that the presence of a negotiable instrument was sufficient to confer jurisdiction upon the State seeking to tax its transfer.[518] On the other hand, the mere ownership by a foreign corporation of property in a nondomiciliary State was held insufficient to support a tax by that State on the succession to shares of stock in that corporation owned by a nonresident decedent.[519] Also against the trend was Blodgett _v._ Silberman[520] wherein the Court defeated collection of a transfer tax by the domiciliary State by treating coins and bank notes deposited by a decedent in a safe deposit box in another State as tangible property, albeit it conceded that the domiciliary State could tax the transfer of books and certificates of indebtedness found in that safe deposit box as well as the decedent's interest in a foreign partnership. In the course of about two years following the recent Depression, the Court handed down a group of four decisions which, for the time being at any rate, placed the stamp of disapproval upon multiple transfer and--by inference--other multiple taxation of intangibles. Asserting, as it did in one of these cases, that "practical considerations of wisdom, convenience and justice alike dictate the desirability of a uniform general rule confining the jurisdiction to impose death transfer taxes as to intangibles to the State of the [owner's] domicile; * * *"[521] the Court, through consistent application of the maxim, _mobilia sequuntur personam_, proceeded to deny the right of nondomiciliary States to tax and to reject as inadequate jurisdictional claims of the latter founded upon such bases as control, benefit, and protection or situs. During this interval, 1930-1932, multiple transfer taxation of intangibles came to be viewed, not merely as undesirable, but as so arbitrary and unreasonable as to be prohibited by the due process clause. Beginning, in 1930, with Farmers' Loan and Trust Co. _v._ Minnesota,[522] the Court reversed its former ruling in Blackstone _v._ Miller,[523] in which it had held that the State in which a debtor was domiciled or a bank located could levy an inheritance tax on the transfer of the debt or the deposit, notwithstanding that the creditor had his domicile in a different State. Farmers' Loan and Trust Co. _v._ Minnesota, strictly appraised, was authority simply for the proposition that jurisdiction over a debtor, in this instance a State which had issued bonds held by a nonresident creditor, was inadequate to sustain a tax by that debtor State on the transfer of such securities. The securities in question, which had never been used by the creditor in any business in the issuing State, were located in the State in which the creditor had his domicile, and were deemed to be taxable only in the latter. In Baldwin _v._ Missouri,[524] a nondomiciliary State was prevented from applying its inheritance tax to bonds, bank deposits, and promissory notes, all physically present within its limits and some of them secured by lands therein, when the owner thereof was domiciled in another State. A like result, although on this occasion on grounds of lack of evidence of any "business situs," was reached in Beidler _v._ South Carolina Tax Commission,[525] in which the Court ruled that a State, upon the death of a nonresident creditor, may not apply its inheritance tax to a debt [open account] owned by one of its domestic corporations. Finally, in First National Bank _v._ Maine,[526] which has since been overruled in State Tax Commission _v._ Aldrich,[527] the Court declared that only the State in which the owner of corporate stock died domiciled was empowered to tax the succession to the shares by will or inheritance and that the State in which the issuing corporation was domiciled could not do so. Without expressly overruling more than one of these four cases condemning multiple succession taxation of intangibles, the Court, beginning with Curry _v._ McCanless[528] in 1939, announced a departure from the "doctrine, of recent origin, that the Fourteenth Amendment precludes the taxation of any interest in the same intangible in more than one State * * *." Taking cognizance of the fact that this doctrine had never been extended to the field of income taxation or consistently applied in the field of property taxation, where the concepts of business situs as well as of domiciliary situs had been utilized to sustain double taxation, especially in connection with shares of corporate stock, the Court declared that a correct interpretation of constitutional requirements would dictate the following conclusions: "From the beginning of our constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use and enjoyment of rights in intangibles measured by their value. * * * But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another State, in such a way as to bring his person or * * * [his intangibles] within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains, * * * [However], the State of domicile is not deprived, by the taxpayer's activities elsewhere, of its constitutional jurisdiction to tax." In accordance with this line of reasoning, Tennessee, where a decedent died domiciled, and Alabama, where a trustee, by conveyance from said decedent, held securities on specific trusts, were both deemed competent to impose a tax on the transfer of these securities passing under the will of the decedent. "In effecting her purposes," the testatrix was viewed as having "brought some of the legal interests which she created within the control of one State by selecting a trustee there, and others within the control of the other State, by making her domicile there." She had found it necessary to invoke "the aid of the law of both States, and her legatees" were subject to the same necessity. These statements represented a belated adoption of the views advanced by Chief Justice Stone in dissenting or concurring opinions which he filed in three of the four decisions rendered during 1930-1932. By the line of reasoning taken in these opinions, if protection or control was extended to, or exercised over, intangibles or the person of their owner, then as many States as afforded such protection or were capable of exerting such dominion should be privileged to tax the transfer of such property. On this basis, the domiciliary State would invariably qualify as a State competent to tax and a nondomiciliary State, so far as it could legitimately exercise control or could be shown to have afforded a measure of protection that was not trivial or insubstantial. On the authority of Curry _v._ McCanless, the Court, in Pearson _v._ McGraw,[529] also sustained the application of an Oregon transfer tax to intangibles handled by an Illinois trust company and never physically present in Oregon, jurisdiction to tax being viewed as dependent, not on the location of the property in the State, but on control over the owner who was a resident of Oregon. In Graves _v._ Elliott,[530] decided in the same year, the Court upheld the power of New York, in computing its estate tax, to include in the gross estate of a domiciled decedent the value of a trust of bonds managed in Colorado by a Colorado trust company and already taxed on its transfer by Colorado, which trust the decedent had established while in Colorado and concerning which he had never exercised any of his reserved powers of revocation or change of beneficiaries. It was observed that "the power of disposition of property is the equivalent of ownership, * * * and its exercise in the case of intangibles is * * * [an] appropriate subject of taxation at the place of the domicile of the owner of the power. Relinquishment at death, in consequence of the non-exercise in life, of a power to revoke a trust created by a decedent is likewise an appropriate subject of taxation."[531] Consistent application of the principle enunciated in Curry _v._ McCanless is also discernible in two later cases in which the Court sustained the right of a domiciliary State to tax the transfer of intangibles kept outside its boundaries, notwithstanding that "in some instances they may be subject to taxation in other jurisdictions, to whose control they are subject and whose legal protection they enjoyed." In Graves _v._ Schmidlapp[532] an estate tax was levied upon the value of the subject of a general testamentary power of appointment effectively exercised by a resident donee over intangibles held by trustees under the will of a nonresident donor of the power. Viewing the transfer of interest in said intangibles by exercise of the power of appointment as the equivalent of ownership, the Court quoted from McCulloch _v._ Maryland[533] to the effect that the power to tax "'is an incident of sovereignty, and is coextensive with that to which it is an incident.'" Again, in Central Hanover Bank & T. Co. _v._ Kelly,[534] the Court approved a New Jersey transfer tax imposed on the occasion of the death of a New Jersey grantor of an irrevocable trust executed, and consisting of securities located, in New York, and providing for the disposition of the corpus to two nonresident sons. The costliness of multiple taxation of estates comprising intangibles is appreciably aggravated when each of several States founds its tax not upon different events or property rights but upon an identical basis; namely that, the decedent died domiciled within its borders. Not only is an estate then threatened with excessive contraction but the contesting States may discover that the assets of the estate are insufficient to satisfy their claims. Thus, in Texas _v._ Florida,[535] the State of Texas filed an original petition in the Supreme Court, in which it asserted that its claim, together with those of three other States, exceeded the value of the estate, that the portion of the estate within Texas alone would not suffice to discharge its own tax, and that its efforts to collect its tax might be defeated by adjudications of domicile by the other States. The Supreme Court disposed of this controversy by sustaining a finding that the decedent had been domiciled in Massachusetts, but intimated that thereafter it would take jurisdiction in like situations only in the event that an estate did not exceed in value the total of the conflicting demands of several States and that the latter were confronted with a prospective inability to collect. Corporation Taxes (1) Intangible Personal Property.--A State in which a foreign corporation has acquired a commercial domicile and in which it maintains its general business offices may tax the latter's bank deposits and accounts receivable even though the deposits are outside the State and the accounts receivable arise from manufacturing activities in another State.[536] Similarly, a nondomiciliary State in which a foreign corporation did business can tax the "corporate excess" arising from property employed and business done in the taxing State.[537] On the other hand, when the foreign corporation transacts only interstate commerce within a State, any excise tax on such excess is void, irrespective of the amount of the tax.[538] A domiciliary State, however, may tax the excess of market value of outstanding capital stock over the value of real and personal property and certain indebtedness of a domestic corporation even though this "corporate excess" arose from property located and business done in another State and was there taxable. Moreover, this result follows whether the tax is considered as one on property or on the franchise.[539] Also a domiciliary State, which imposes no franchise tax on a stock fire insurance corporation, validly may assess a tax on the full amount of its paid-in capital stock and surplus, less deductions for liabilities, notwithstanding that such domestic corporation concentrates its executive, accounting, and other business offices in New York, and maintains in the domiciliary State only a required registered office at which local claims are handled. Despite "the vicissitudes which the so-called 'jurisdiction-to-tax' doctrine has encountered * * *," the presumption persists that intangible property is taxable by the State of origin.[540] But a property tax on the capital stock of a domestic company which includes in the appraisement thereof the value of coal mined in the taxing State but located in another State awaiting sale deprives the corporation of its property without due process of law.[541] Also void for the same reason is a State tax on the franchise of a domestic ferry company which includes in the valuation thereof the worth of a franchise granted to the said company by another State.[542] (2) Privilege Taxes Measured by Corporate Stock.--Since the tax is levied not on property but on the privilege of doing business in corporate form, a domestic corporation may be subjected to a privilege tax graduated according to paid up capital stock, even though the latter represents capital not subject to the taxing power of the State.[543] By the same token, the validity of a franchise tax, imposed on a domestic corporation engaged in foreign maritime commerce and assessed upon a proportion of the total franchise value equal to the ratio of local business done to total business, is not impaired by the fact that the total value of the franchise was enhanced by property and operations carried on beyond the limits of the State.[544] However, a State, under the guise of taxing the privilege of doing an intrastate business, cannot levy on property beyond its borders; and, therefore, as applied to foreign corporations, a license tax based on authorized capital stock is void,[545] even though there be a maximum to the fee,[546] unless apportioned according to some method, as, for example, a franchise tax based on such proportion of outstanding capital stock as is represented by property owned and used in business transacted in the taxing State.[547] An entrance fee, on the other hand, collected only once as the price of admission to do an intrastate business, is distinguishable from a tax and accordingly may be levied on a foreign corporation on the basis of a sum fixed in relation to the amount of authorized capital stock (in this instance, a $5,000 fee on an authorized capital of $100,000,000).[548] (3) Privilege Taxes Measured by Gross Receipts.--A municipal license tax imposed as a percentage of the receipts of a foreign corporation derived from the sales within and without the State of goods manufactured in the city is not a tax on business transactions or property outside the city and therefore does not violate the due process clause.[549] But a State is wanting in jurisdiction to extend its privilege tax to the gross receipts of a foreign contracting corporation for work done outside the taxing State in fabricating equipment later installed in the taxing State. Unless the activities which are the subject of the tax are carried on within its territorial limits, a State is not competent to impose such a privilege tax.[550] (4) Taxes on Tangible Personal Property.--When rolling stock is permanently located and employed in the prosecution of a business outside the boundaries of a domiciliary State, the latter has no jurisdiction to tax the same.[551] Vessels, however, inasmuch as they merely touch briefly at numerous ports, never acquire a taxable situs at any one of them, and are taxable by the domicile of their owners or not at all;[552] unless, of course, the ships operate wholly on the waters within one State, in which event they are taxable there and not at the domicile of the owners.[553] Only recently airplanes have been treated in a similar manner for tax purposes. Noting that the entire fleet of airplanes of an interstate carrier were "never continuously without the [domiciliary] State during the whole tax year," that such airplanes also had their "home port" in the domiciliary State, and that the company maintained its principal office therein, the Court sustained a personal property tax applied by the domiciliary State to all the airplanes owned by the taxpayer. No other State was deemed able to accord the same protection and benefits as the taxing State in which the taxpayer had both its domicile and its business situs; and the doctrines of Union Refrigerator Transit Co. _v._ Kentucky,[554] as to the taxability of permanently located tangibles, and that of apportionment, for instrumentalities engaged in interstate commerce[555] were held to be inapplicable.[556] Conversely, a nondomiciliary State, although it may not tax property belonging to a foreign corporation which has never come within its borders, may levy on movables which are regularly and habitually used and employed therein. Thus, while the fact that cars are loaded and reloaded at a refinery in a State outside the owner's domicile does not fix the situs of the entire fleet in such State, the latter may nevertheless tax the number of cars which on the average are found to be present within its borders.[557] Moreover, in assessing that part of a railroad within its limits, a State need not treat it as an independent line, disconnected from the part without, and place upon the property within the State only a value which could be given to it if operated separately from the balance of the road. The State may ascertain the value of the whole line as a single property and then determine the value of the part within on a mileage basis, unless there be special circumstances which distinguish between conditions in the several States.[558] But no property of an interstate carrier can be taken into account unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the State.[559] Also, a State property tax on railroads, which is measured by gross earnings apportioned to mileage, is not unconstitutional in the absence of proof that it exceeds what would be legitimate as an ordinary tax on the property valued as part of a going concern or that it is relatively higher than taxes on other kinds of property.[560] The tax reaches only revenues derived from local operations, and the fact that the apportionment formula does not result in mathematical exactitude is not a constitutional defect.[561] Income and Other Taxes Individual Incomes.--Consistently with due process of law, a State annually may tax the entire net income of resident individuals from whatever source received,[562] and that portion of a nonresident's net income derived from property owned, and from any business, trade, or profession carried on, by him within its borders.[563] Jurisdiction, in the case of residents, is founded upon the rights and privileges incident to domicile; that is, the protection afforded the recipient of income in his person, in his right to receive the income, and in his enjoyment of it when received, and, in the case of nonresidents, upon dominion over either the receiver of the income or the property or activity from which it is derived, and upon the obligation to contribute to the support of a government which renders secure the collection of such income. Accordingly, a State may tax residents on income from rents of land located outside the State and from interest on bonds physically without the State and secured by mortgage upon lands similarly situated;[564] and the income received by a resident beneficiary from securities held by a trustee in a trust created and administered in another State, and not directly taxable to the trustee.[565] Nor does the fact that another State has lawfully taxed identical income in the hands of trustees operating therein necessarily destroy a domiciliary State's right to tax the receipt of said income by a resident beneficiary. "The taxing power of a State is restricted to her confines and may not be exercised in respect of subjects beyond them."[566] Likewise, even though a nonresident does no business within a State, the latter may tax the profits realized by the nonresident upon his sale of a right appurtenant to membership in a stock exchange within its borders.[567] Incomes of Foreign Corporations.--A tax based on the income of a foreign corporation may be determined by allocating to the State a proportion of the total income which the tangible property in the State bears to the total.[568] However, such a basis may work an unconstitutional result if the income thus attributed to the State is out of all appropriate proportion to the business there transacted by the corporation. Evidence may always be submitted which tends to show that a State has applied a method which, albeit fair on its face, operates so as to reach profits which are in no sense attributable to transactions within its jurisdiction.[569] Nevertheless, a foreign corporation is in error when it contends that due process is denied by a franchise tax measured by income, which is levied, not upon net income from intrastate business alone, but on net income justly attributable to all classes of business done within the State, interstate and foreign, as well as intrastate business.[570] Inasmuch as the privilege granted by a State to a foreign corporation of carrying on local business supports a tax by that State on the income derived from that business, it follows that the Wisconsin privilege dividend tax, consistently with the due process clause, may be applied to a Delaware corporation, having its principal offices in New York, holding its meetings and voting its dividends in New York, and drawing its dividend checks on New York bank accounts. The tax is imposed on the "privilege of declaring and receiving dividends" out of income derived from property located and business transacted in the State, equal to a specified percentage of such dividends, the corporation being required to deduct the tax from dividends payable to resident and nonresident shareholders and pay it over to the State.[571] Chain Store Taxes.--A tax on chain stores, at a rate per store determined by the number of stores both within and without the State, is not unconstitutional as a tax in part upon things beyond the jurisdiction of the State.[572] Insurance Company Taxes.--A privilege tax on the gross premiums received by a foreign life insurance company at its home office for business written in the State does not deprive the company of property without due process;[573] but a tax is bad when the company has withdrawn all its agents from the State and has ceased to do business, merely continuing to be bound to policyholders resident therein and receiving at its home office the renewal premiums.[574] Distinguishable therefrom is the following tax which was construed as having been levied, not upon annual premiums nor upon the privilege merely of doing business during the period that the company actually was within the State, but upon the privilege of entering and engaging in business, the percentage "on the annual premiums _to be paid throughout the life of the policies issued_." By reason of this difference a State may continue to collect such tax even after the company's withdrawal from the State.[575] A State which taxes the insuring of property within its limits may lawfully extend its tax to a foreign insurance company which contracts with an automobile sales corporation in a third State to insure its customers against loss of cars purchased through it, so far as the cars go into possession of purchasers within the taxing State.[576] On the other hand, a foreign corporation admitted to do a local business, which insures its property with insurers in other States who are not authorized to do business in the taxing State, cannot constitutionally be subjected to a 5% tax on the amount of premiums paid for such coverage.[577] Likewise a Connecticut life insurance corporation, licensed to do business in California, which negotiated reinsurance contracts in Connecticut, received payment of premiums thereon in Connecticut, and was there liable for payment of losses claimed thereunder, cannot be subjected by California to a privilege tax measured by gross premiums derived from such contracts, notwithstanding that the contracts reinsured other insurers authorized to do business in California and protected policies effected in California on the lives of residents therein. The tax cannot be sustained whether as laid on property, business done, or transactions carried on, within California, or as a tax on a privilege granted by that State.[578] When policy loans to residents are made by a local agent of a foreign insurance company, in the servicing of which notes are signed, security taken, interest collected, and debts are paid within the State, such credits are taxable to the company, notwithstanding that the promissory notes evidencing such credits are kept at the home office of the insurer.[579] But when a resident policyholder's loan is merely charged against the reserve value of his policy, under an arrangement for extinguishing the debt and interest thereon by deduction from any claim under the policy, such credit is not taxable to the foreign insurance company.[580] Premiums due from residents on which an extension has been granted by foreign companies also are credits on which the latter may be taxed by the State of the debtor's domicile;[581] and the mere fact that the insurers charge these premiums to local agents and give no credit directly to policyholders does not enable them to escape this tax.[582] PROCEDURE IN TAXATION In General Exactly what due process requires in the assessment and collection of general taxes has never been decided by the Supreme Court. While it was held that "notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential" for imposition of special taxes, it has also ruled that laws for assessment and collection of general taxes stand upon a different footing and are to be construed with the utmost liberality, even to the extent of acknowledging that no notice whatever is necessary.[583] Due process of law as applied to taxation does not mean judicial process;[584] neither does it require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain.[585] If a taxpayer is given an opportunity to test the validity of a tax at any time before it is final, whether the proceedings for review take place before a board having a quasi-judicial character, or before a tribunal provided by the State for the purpose of determining such questions, due process of law is not denied.[586] Notice and Hearing in Relation to General Taxes "Of the different kinds of taxes which the State may impose, there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally, specific taxes on things, or persons, or occupations. In such cases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. Yet there can be no question, that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. No right of his is, therefore, invaded. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard, or bushel, or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind, or at a particular place, such as keeping a hotel or a restaurant, or selling liquors, or cigars, or clothes, he has only to pay the amount required by law and go into the business. There is no need in such cases for notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the State, or on domestic corporations for franchises, if the parties desire the privilege, they have only to pay the amount required. In such cases there is no necessity for notice or hearing. The amount of the tax would not be changed by it."[587] Notice and Hearing in Relation to Assessments "But where a tax is levied on property not specifically, but according to its value, to be ascertained by assessors appointed for that purpose upon such evidence as they may obtain, a different principle comes in. The officers in estimating the value act judicially; and in most of the States provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments. The law in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law."[588] Nevertheless, it has never been considered necessary to the validity of a tax that the party charged shall have been present, or had an opportunity to be present, in some tribunal when he was assessed.[589] Where a tax board has its time of sitting fixed by law and where its sessions are not secret, no obstacle prevents the appearance of any one before it to assert a right or redress a wrong; and in the business of assessing taxes, this is all that can be reasonably asked.[590] Nor is there any constitutional command that notice of an assessment as well as an opportunity to contest it be given in advance of the assessment. It is enough that all available defenses may be presented to a competent tribunal during a suit to collect the tax and before the demand of the State for remittance becomes final.[591] A hearing before judgment, with full opportunity to submit evidence and arguments being all that can be adjudged vital, it follows that rehearings and new trials are not essential to due process of law.[592] One hearing is sufficient to constitute due process;[593] and the requirements of due process are also met if a taxpayer, who had no notice of a hearing, does receive notice of the decision reached thereat, and is privileged to appeal the same and, on appeal, to present evidence and be heard on the valuation of his property.[594] Notice and Hearing in Relation to Special Assessments However, when assessments are made by a political subdivision, a taxing board or court, according to special benefits, the property owner is entitled to be heard as to the amount of his assessments and upon all questions properly entering into that determination.[595] The hearing need not amount to a judicial inquiry,[596] but a mere opportunity to submit objections in writing, without the right of personal appearance, is not sufficient.[597] If an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, the property owner is not entitled to be heard in advance on the question of benefits.[598] On the other hand, if the area of the assessment district was not determined by the legislature, a landowner does have the right to be heard respecting benefits to his property before it can be included in the improvement district and assessed; but due process is not denied if, in the absence of actual fraud or bad faith, the decision of the agency vested with the initial determination of benefits is made final.[599] The owner has no constitutional right to be heard in opposition to the launching of a project which may end in assessment; and once his land has been duly included within a benefit district, the only privilege which he thereafter enjoys is to a hearing upon the apportionment; that is, the amount of the tax which he has to pay.[600] Nor can he rightfully complain because the statute renders conclusive, after said hearing, the determination as to apportionment by the same body which levied the assessment.[601] More specifically, where the mode of assessment resolves itself into a mere mathematical calculation, there is no necessity for a hearing.[602] Statutes and ordinances providing for the paving and grading of streets, the cost thereof to be assessed on the front foot rule, do not, by their failure to provide for a hearing or review of assessments, generally deprive a complaining owner of property without due process of law.[603] In contrast, when an attempt is made to cast upon particular property a certain proportion of the construction cost of a sewer not calculated by any mathematical formula, the taxpayer has a right to be heard.[604] Sufficiency and Manner of Giving Notice Notice, insofar as it is required, may be either personal, or by publication, or by statute fixing the time and place of hearing.[605] A State statute, consistently with due process, may designate a corporation as the agent of a nonresident stockholder to receive notice and to represent him in proceedings for correcting assessments.[606] Also "where the State * * * [desires] to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the Court, and a notice which permits all interested, who are 'so minded,' to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment * * *."[607] A description, even though it not be technically correct, which identifies the land will sustain an assessment for taxes and a notice of sale therefor when delinquent. If the owner knows that the property so described is his, he is not, by reason of the insufficient description, deprived of his property without due process. Where tax proceedings are _in rem_, owners are bound to take notice thereof, and to pay taxes on their property, even if assessed to unknown or other persons; and if an owner stands by and sees his property sold for delinquent taxes, he is not thereby wrongfully deprived of his property.[608] Sufficiency of Remedy When no other remedy is available, due process is denied by a judgment of a State court withholding a decree in equity to enjoin collection of a discriminatory tax.[609] Requirements of due process are similarly violated by a statute which limits a taxpayer's right to challenge an assessment to cases of fraud or corruption,[610] and by a State tribunal which prevents a recovery of taxes imposed in violation of the Constitution and laws of the United States by invoking a State law limiting suits to recover taxes alleged to have been assessed illegally to taxes paid at the time and in the manner provided by said law.[611] Laches Persons failing to avail themselves of an opportunity to object and be heard, cannot thereafter complain of assessments as arbitrary and unconstitutional.[612] Likewise a car company, which failed to report its gross receipts as required by statute, has no further right to contest the State comptroller's estimate of those receipts and his adding thereto the 10% penalty permitted by law.[613] Collection of Taxes To reach property which has escaped taxation, a State may tax the estates of decedents for a period anterior to death and grant proportionate deductions for all prior taxes which the personal representative can prove to have been paid.[614] Collection of an inheritance tax also may be expedited by a statute requiring the sealing of safe deposit boxes for at least ten days after the death of the renter and obliging the lessor to retain assets found therein sufficient to pay the tax that may be due the State.[615] Moreover, with a view to achieving a like result in the case of gasoline taxes, a State may compel retailers to collect such taxes from consumers and, under penalty of a fine for delinquency, to remit monthly the amounts thus collected.[616] Likewise, a tax on the tangible personal property of a nonresident owner may be collected from the custodian or possessor of such property, and the latter, as an assurance of reimbursement, may be granted a lien on such property.[617] In collecting personal income taxes, however, most States require employers to deduct and withhold the tax from the wages of only nonresident employees; but the duty thereby imposed on the employer has never been viewed as depriving him of property without due process of law, nor has the adjustment of his system of accounting and paying salaries which withholding entails been viewed as an unreasonable regulation of the conduct of his business.[618] As a State may provide in advance that taxes shall bear interest from the time they become due, it may with equal validity stipulate that taxes which have become delinquent shall bear interest from the time the delinquency commenced. Likewise, a State may adopt new remedies for the collection of taxes and apply these remedies to taxes already delinquent.[619] After liability of a taxpayer has been fixed by appropriate procedure, collection of a tax by distress and seizure of his person does not deprive him of liberty without due process of law.[620] Nor is a foreign insurance company denied due process of law when its personal property is distrained to satisfy unpaid taxes.[621] The requirements of due process are fulfilled by a statute which, in conjunction with affording an opportunity to be heard, provides for the forfeiture of titles to land for failure to list and pay taxes thereon for certain specified years.[622] No less constitutional, as a means of facilitating collection, is an _in rem_ proceeding, to which the land alone is made a party, whereby tax liens on land are foreclosed and all pre-existing rights or liens are eliminated by a sale under a decree in said proceeding.[623] On the other hand, while the conversion of an unpaid special assessment into both a personal judgment therefor against the owner as well as a charge on the land is consistent with the Fourteenth Amendment,[624] a judgment imposing personal liability against a nonresident taxpayer over whom the State court acquired no jurisdiction is void.[625] Apart from such restraints, however, a State is free to adopt new remedies for the collection of taxes and even to apply new remedies to taxes already delinquent.[626] EMINENT DOMAIN Historical Development "Prior to the adoption of the Fourteenth Amendment," the power of eminent domain, which is deemed to inhere in every State and to be essential to the performance of its functions,[627] "was unrestrained by any federal authority."[628] An express prohibition against the taking of private property for public use without just compensation was contained in the Fifth Amendment; but an effort to extend the application thereof to the States had been defeated by the decision, in 1833, in Barron _v._ Baltimore.[629] The most nearly comparable provision included in the Fourteenth Amendment, was the prohibition against a State depriving a person of property without due process of law. The Court was accordingly confronted with the task of determining whether this restraint on State action, minus the explicit provision for just compensation found in the Fifth Amendment, afforded property owners the same measure of protection as did the latter in its operation as a limitation on the Federal Government. The Court's initial answer to this question, as set forth in Davidson _v._ New Orleans,[630] decided in 1878, was in the negative; and on the ground of the omission of the clause found in the Fifth Amendment from the terms of the Fourteenth, it refused to equate the just compensation with due process. Within less than a decade thereafter, however, the Court modified its position, and in Chicago, B. & Q.R. Co. _v._ Chicago,[631] seven Justices unequivocally rejected the contention, obviously based on the Davidson Case that "the question as to the amount of compensation to be awarded to the railroad company was one of local law merely, and [insofar as] that question was determined in the mode prescribed by the Constitution and [State] law, the [property owner] appearing and having full opportunity to be heard, the requirement of due process of law was observed." On the contrary, the seven Justices maintained that although a State "legislature may prescribe a form of procedure to be observed in the taking of private property for public use, * * * it is not due process of law if provision be not made for compensation * * * The mere form of the proceeding instituted against the owner, * * *, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation." Public Use While acknowledging that agreement was virtually nonexistent as to "what are public uses for which the right of compulsory taking may be employed," the Court, until 1946, continued to reiterate "the nature of the uses, whether public or private, is ultimately a judicial question."[632] But because of proclaimed willingness to defer to local authorities, especially "the highest court of the State" in resolving such an issue,[633] the Court, as early as 1908, was obliged to admit that, notwithstanding its retention of the power of judicial review, "no case is recalled where this Court has condemned as a violation of the Fourteenth Amendment a taking upheld by the State court as a taking for public uses * * *"[634] In 1946, however, without endeavoring to ascertain whether "the scope of the judicial power to determine what is a 'public use' in Fourteenth Amendment controversies, * * *" is the same as under the Fifth Amendment, a majority of the Justices, in a decision involving the Federal Government, declared that "it is the function of * * * [the legislative branch] to decide what type of taking is for a public use * * *"[635] Necessity for a Taking "Once it is admitted or judicially determined that a proposed condemnation is for a public purpose and within the statutory authority, a political or judicially nonreviewable question may emerge, to wit, the necessity or expediency of the condemnation of the particular property."[636] The necessity and expediency of the taking are legislative questions to be determined by such agency and in such mode as the State may designate.[637] What Constitutes a Taking For a Public Use To constitute a public use within the law of eminent domain, it is not essential that an entire community should directly participate in or enjoy an improvement, and, in ascertaining whether a use is public, not only present demands of the public but those which may be fairly anticipated in the future may be considered.[638] Moreover, it is also not necessary that property should be absolutely taken, in the narrowest sense of the word, to bring the case within the protection of this constitutional provision, but there may be such serious interruption to the common and necessary use of property as will be equivalent to a taking. "It would be * * * [an] unsatisfactory result, if * * *, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it [has] not [been] taken for the public use."[639] Takings for a purpose that is public hitherto have been held to comprise the following: a privately owned water supply system formerly operated under contract with the municipality effecting the taking;[640] a right of way across a neighbor's land for the enlargement of an irrigation ditch therein to enable the taker to obtain water for irrigating land that would otherwise remain valueless;[641] a right of way across a placer mining claim for the aerial bucket line of a mining corporation;[642] land, water, and water rights for the production of electric power by a public utility;[643] water rights by an interurban railway company for the production of power in excess of current needs;[644] places of historical interest;[645] land taken for the purpose of exchange with a railroad company for a portion of its right of way, required for widening a highway;[646] land by a railway for a spur track;[647] establishment by a municipality of a public hack stand upon the driveway maintained by a railroad upon its own terminal grounds to afford ingress and egress to its patrons.[648] Likewise, damages for which compensation must be paid are sustained by an upper riparian proprietor by reason of the erection of a dam by a lower mill owner under authority of a "mill act."[649] On the other hand, even when compensation is tendered, an owner of property cannot be compelled to assent to its taking by the State for the private use of another. Such a taking is prohibited, by the due process clause. Thus, a State, by law, could not require a railroad corporation, which had permitted the erection of two grain elevators by private citizens on its right of way, to grant upon like terms, a location to another group of farmers desirous of erecting a third grain elevator for their own benefit.[650] Just Compensation "When * * * [the] power [of eminent domain] is exercised it can only be done by giving the party whose property is taken or whose use and enjoyment of such property is interfered with, full and adequate compensation, not excessive or exorbitant, but just compensation."[651] However, "there must be something more than an ordinary honest mistake of law in the proceedings for compensation before a party can make out that the State has deprived him of his property unconstitutionally."[652] Unless, by its rulings of law, the State court prevented a complainant from obtaining substantially any compensation, its findings as to the amount of damages will not be overturned on appeal, even though as a consequence of error therein the property owner received less than he ought.[653] Accordingly, when a State court, expressly recognizing a right of recovery for any substantial damage, found that none had been shown by the proof, its award of only $1 as nominal damages was held to present no question for review.[654] "All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution."[655] "The general rule is that compensation 'is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future,' * * * [but] 'mere possible or imaginary uses, or the speculative schemes of its proprietor, are to be excluded.'"[656] Damages are measured by the loss to the owner, not by the gain to the taker;[657] and attorneys' fees and expenses are not embraced therein.[658] "When the public faith and credit are pledged to a reasonably prompt ascertainment and payment, and there is adequate provision for enforcing the pledge, * * * the requirement of just compensation is satisfied."[659] Uncompensated Takings "It is well settled that 'neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common welfare.' * * * Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not a taking or damaging without just compensation of private property, * * *"[660] Thus, the flooding of lands consequent upon private construction of a dam under authority of legislation enacted to subserve the drainage of lowlands was not a taking which required compensation to be made, especially since such flooding could have been prevented by raising the height of dikes around the lands. "The rule to be gathered from these cases is that where there is a practical destruction, or material impairment of the value of plaintiff's lands, there is a taking, which demands compensation, but otherwise where, as in this case, plaintiff is merely put to some extra expense in warding off the consequences of the overflow."[661] Similarly, when a city, by condemnation proceedings, sought to open a street across the tracks of a railroad, it was not obligated to pay the expenses that the railroad would incur in planking the crossing, constructing gates, and posting gatemen at the crossing. The railway was presumed to have "laid its tracks subject to the condition necessarily implied that their use could be so regulated by competent authority as to insure the public safety."[662] Also, one who leased oyster beds in Hampton Roads from Virginia for $1 per acre under guaranty of an "absolute right" to use and occupy them was held to have acquired such rights subject to the superior power of Virginia to authorize Newport News to discharge its sewage into the sea; and, hence could not successfully contend that the resulting pollution of his oysters constituted an uncompensated taking without due process of law.[663] Consequential Damages "Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the due process clause."[664] Accordingly, consequential damages to abutting property caused by an obstruction in a street resulting from the authorization of a railroad to erect tracks, sheds, and fences over a portion thereof have been held to effect no unconstitutional deprivation of property.[665] Likewise, the erection over a street of an elevated viaduct, intended for general public travel and not devoted to the exclusive use of a private transportation corporation, has been declared to be a legitimate street improvement equivalent to a change in grade; and, as in the case of a change of grade, the owner of land abutting on the street has been refused damages for impairment of access to his land and the lessening of the circulation of light and air over it.[666] Limits to the Above Rule.--There are limits however, to the amount of destruction or impairment of the enjoyment or value of private property which public authorities or citizens acting in their behalf may occasion without the necessity of paying compensation therefor. Thus, in upholding zoning regulations limiting the height of buildings which may be constructed in a designated zone, the Court has warned that similar regulations, if unreasonable, arbitrary, and discriminatory, may be held to deprive an owner of the profitable use of his property and hence to amount to a taking sufficient to require compensation to be paid for such invasion of property rights.[667] Similarly, in voiding a statute forbidding mining of coal under private dwellings or streets or cities in places where such right to mine has been reserved in a conveyance, Justice Holmes, speaking for his associates, declared if a regulation restricting the use of private property goes too far, it will be recognized as a taking for which compensation must be made. "Some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits, * * * One fact for consideration in determining such limits is the extent of the diminution. * * * The damage [here] is not common or public. * * * The extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate in land."[668] Due Process in Eminent Domain (1) Notice.--If the owner of property sought to be condemned is a nonresident, personal notice is not requisite and service may be effected by publication.[669] In fact, "it has been uniformly held that statutes providing for * * * condemnation of land may adopt a procedure summary in character, and that notice of such proceedings may be indirect, provided only that the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter." Insofar as reasonable notice is deemed to be essential, that requirement was declared to have been satisfied by a statute providing that notice of initiation of proceedings for establishment of a county road be published on three successive weeks in three successive issues of a paper published in the county, and that all meetings of the county condemning agency be public and published in a county newspaper.[670] (2) Hearing.--The necessity and expediency of a taking being legislative questions irrespective of who may be charged with their decision, a hearing thereon need not be afforded;[671] but the mode of determining the compensation payable to an owner must be such as to furnish him with an opportunity to be heard. Among several admissible modes is that of causing the amount to be assessed by viewers, or by a jury, generally without a hearing, but subject to the right of the owner to appeal for a judicial review thereof at which a trial on the evidence may be had. Through such an appeal the owner obtains the hearing to which he is entitled;[672] and the fact that after having been adequately notified of the determination by the condemning authorities, the former must exercise his right of appeal within a limited period thereafter, such as 30 days, has been held not so arbitrary as to deprive him of property without due process of law.[673] Nor is there any "denial of due process in making the findings of fact by the triers of fact, whether commissioners or a jury, final as to such facts [that is, conclusive as to the mere value of the property], and leaving open to the courts simply the inquiry as to whether there was any erroneous basis adopted by the triers in their appraisal, * * *"[674] (3) Occupation in Advance of Condemnation.--Due process does require that condemnation precede occupation by the condemning authority so long as the opportunity for a hearing as to the value of the land is guaranteed during the condemnation proceedings. Where the statute contains an adequate provision for assured payment of compensation without unreasonable delay, the taking may precede compensation.[675] DUE PROCESS OF LAW IN CIVIL PROCEEDINGS Some General Criteria What is due process of law depends on the circumstances.[676] It varies with the subject matter and the necessities of the situation. By due process of law is meant one which, following the forms of law, is appropriate to the case, and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.[677] Ancient Usage and Uniformity.--What is due process of law may be ascertained in part by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. If it can show the sanction of settled usage both in England and in this country, a process of law which is not otherwise forbidden may be taken to be due process of law. In other words, the antiquity of a procedure is a fact of weight in its behalf. However, it does not follow that a procedure settled in English law at the time of the emigration and brought to this country and practiced by our ancestors is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment. Fortunately, the States are not tied down by any provision of the Constitution to the practice and procedure which existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.[678] Equality.--If due process is to be secured, the laws must operate alike upon all, and not subject the individual to the arbitrary exercise of governmental power unrestrained by established principles of private rights and distributive justice. Where a litigant has the benefit of a full and fair trial in the State courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result.[679] Due Process and Judicial Process.--Due process of law does not always mean a proceeding in court.[680] Proceedings to raise revenue by levying and collecting taxes are not necessarily judicial, neither are administrative and executive proceedings, yet their validity is not thereby impaired.[681] Moreover, the due process clause has been interpreted as not requiring that the judgment of an expert commission be supplanted by the independent view of judges based on the conflicting testimony, prophecies, and impressions of expert witnesses when judicially reviewing a formula of a State regulatory commission for limiting daily production in an oil field and for proration among the several well owners.[682] Nor does the Fourteenth Amendment prohibit a State from conferring upon nonjudicial bodies certain functions that may be called judicial, or from delegating to a court powers that are legislative in nature. For example, State statutes vesting in a parole board certain judicial functions,[683] or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade,[684] or vesting in a probate court authority to appoint park commissioners and establish park districts[685] are not in conflict with the due process clause and present no federal question. Whether legislative, executive, and judicial powers of a State shall be kept altogether distinct and separate, or whether they should in some particulars be merged is for the determination of the State.[686] Jurisdiction In General.--Jurisdiction may be defined as the power to create legal interests; but if a State attempts to exercise such power with respect to persons or things beyond its borders, its action is in conflict with the Fourteenth Amendment and is void within as well as without its territorial limits. The foundation of jurisdiction is therefore physical power capable of being exerted over persons through _in personam_ actions and over things, generally through actions _in rem_.[687] In proceedings _in personam_ to determine liability of a defendant, no property having been subjected by such litigation to the control of the Court, jurisdiction over the defendant's person is a condition prerequisite to the rendering of any effective decree.[688] That condition is fulfilled; that is, a State is deemed capable of exerting jurisdiction over an individual if he is physically present within the territory of the State, if he is domiciled in the State although temporarily absent therefrom, or if he has consented to the exercise of jurisdiction over him. In actions _in rem_, however, a State validly may proceed to settle controversies with regard to rights or claims against property within its borders, notwithstanding that control of the defendant is never obtained. Accordingly, by reason of its inherent authority over titles to land within its territorial confines, a State may proceed through its courts to judgment respecting the ownership of such property, even though it lacks the constitutional competence to reach claimants of title who reside beyond its borders.[689] By the same token, probate[690] and garnishment or foreign attachment[691] proceedings, being in the nature of _in rem_ actions for the disposition of property, may be prosecuted to conclusion without requirement of the presence of all parties in interest.[692] How Perfected: By Voluntary Appearance or Service of Process.--It is not enough, however, that a State be potentially capable of exercising control over persons and property. Before a State legitimately can exercise such power to alter private interests, its jurisdiction must be perfected by the employment of an appropriate mode of serving process deemed effective to acquaint all parties of the institution of proceedings calculated to affect their rights; for the interest of no one constitutionally may be impaired by a decree resulting from litigation concerning which he was afforded neither notice nor an opportunity to participate.[693] Voluntary appearance, on the other hand, may enable a State not only to obtain jurisdiction over a person who was otherwise beyond the reach of its process; but also, as in the case of a person who was within the scope of its jurisdiction, to dispense with the necessity of personal service. When a party voluntarily appears in a cause and actively conducts his defense, he cannot thereafter claim that he was denied due process merely because he was not served with process when the original action was commenced.[694] Service of Process in Actions in Personam: Individuals, Resident and Nonresident.--The proposition being well established that no person can be deprived of property rights by a decree in a case in which he neither appeared, nor was served or effectively made a party, it follows, by way of illustration that to subject property of individual citizens of a municipality, by a summary proceeding in equity, to the payment of an unsatisfied judgment against the municipality would be a denial of due process of law.[695] Similarly, in a suit against a local partnership, in which the resident partner was duly served with process and the nonresident partner was served only with notice, a judgment thus obtained is binding upon the firm and the resident partner, but is not a personal judgment against the nonresident and cannot be enforced by execution against his individual property.[696] That the nonresident partner should have been so protected is attributable to the fact the process of a court of one State cannot run into another and summon a party there domiciled to respond to proceedings against him, when neither his person nor his property is within the jurisdiction of the Court rendering the judgment.[697] In the case of a resident, however, absence alone will not defeat the processes of courts in the State of his domicile; for domicile is deemed to be sufficient to keep him within reach of the State courts for purposes of a personal judgment, whether obtained by means of appropriate, substituted service, or by actual personal service on the resident at a point outside the State. Amenability to such suit even during sojourns outside is viewed as an "incident of domicile."[698] However, if the defendant, although technically domiciled therein, has left the State with no intention to return, service by publication; that is, by advertisement in a local newspaper, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate inasmuch as it is not reasonably calculated to give him actual notice of the proceedings and opportunity to be heard.[699] In the case of nonresident individuals who are domiciled elsewhere, jurisdiction in certain instances may be perfected by requiring such persons, as a condition to entering the State, to designate local agents to accept service of process. Although a State does not have the power to exclude individuals until such formal appointment of an agent has been made,[700] it may, for example, declare that the use of its highways by a nonresident is the equivalent of the appointment of the State Registrar as agent for receipt of process in suits growing out of motor vehicle accidents. However, a statute designating a State official as the proper person to receive service of process in such litigation must, to be valid, contain a provision making it reasonably probable that a notice of such service will be communicated to the person sued. If the statute imposed "either on the plaintiff himself, or upon the official" designated to accept process "or some other, the duty of communicating by mail or otherwise with the defendant" this requirement is met; but if the act exacts no more than service of process on the local agent, it is unconstitutional, notwithstanding that the defendant may have been personally served in his own State. Not having been directed by the statute, such personal service cannot supply constitutional validity to the act or to service under it.[701] Suits _in Personam_.--Restating the constitutional principles currently applicable for determining whether individuals, resident and nonresident, are suable in _in personam_ actions, the Supreme Court in International Shoe Co. _v._ Washington,[702] recently declared that: "Historically the jurisdiction of courts to render judgments _in personam_ is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. * * * But now * * *, due process requires only that in order to subject a defendant to a judgment _in personam_, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Suability of Foreign Corporations.--Until the enunciation in 1945 in International Shoe Co. _v._ Washington[703] of a "fair play and substantial justice" doctrine, the exact scope of which cannot yet be ascertained, the suability of foreign corporations had been determined by utilization of the "presence" doctrine. Defined in terms no less abstract than its alleged successor and capable therefore of acquiring meaning only in cases of specific application, the "presence" doctrine was stated by Justice Brandeis as follows: "In the absence of consent, a foreign corporation is amenable to process to enforce a personal liability only if it is doing business within the State in such manner and to such extent as to warrant the inference that it is present there".[704] In a variety of cases the Court has considered the measure of "presence" sufficient to confer jurisdiction and a representative sample of the classes thereof is set forth below. With rare exceptions,[705] even continuous activity of some sort by a foreign corporation within a State did not in the past suffice to render it amenable to suits therein unrelated to that activity. Without the protection of such a rule, it was maintained, foreign corporations would be exposed to the manifest hardship and inconvenience of defending in any State in which they happen to be carrying on business suits for torts wherever committed and claims on contracts wherever made. Thus, an Indiana insurance corporation, engaging, without formal admission, in the business of selling life insurance in Pennsylvania, was held not to be subject in the latter State to a suit filed by a Pennsylvania resident upon an insurance policy executed and delivered in Indiana.[706] Similarly, a Virginia railway corporation, doing business in New Orleans, was declared not to be within the jurisdiction of Louisiana for the purposes of a negligence action instituted against it by a Louisiana citizen and based upon injuries suffered in Alabama.[707] Also, an Iowa railway company soliciting freight and passenger business in Philadelphia through a local agent was viewed as exempt therein from suit brought by a Pennsylvania resident to recover damages for personal injuries sustained on one of the carrier's trains in Colorado.[708] On the other hand, when a Missouri statute, accepted by a foreign insurance company and requiring it to designate the State superintendent of insurance as its agent for service of process, was construed by Missouri courts to apply to suits on contracts executed outside Missouri, with the result that the company had to defend in Missouri a suit on a policy issued in Colorado and covering property therein, the Court was unable to discern any denial of due process. The company was deemed to have consented to such interpretation when it complied with the statute.[709] Moreover, even when the cause of action arose in the forum State and suit was instituted by a corporation chartered therein, a foreign company retailing clothing in Oklahoma was held immune from service of process on its president when the latter visited New York on one of his periodic trips there for the purchase of merchandise. Notwithstanding that such business trips were made at regular intervals, the Oklahoma corporation was considered not to be doing business in New York "in such manner and to such extent as to warrant the inference that it was present there," especially in view of its having never applied for a license to do business in New York or consented to suit being brought against it there, or established therein an office or appointed a resident agent.[710] Nor would the mere presence within its territorial limits of an agent, officer, or stockholder, upon whom service might readily be had, be effective without more to enable a State to acquire jurisdiction over a foreign corporation. Consequently, service of process on the president of a foreign corporation in a State where he was temporarily and casually present and where the corporation did no business and had no property was fruitless.[711] Likewise, service on a New York director of a Virginia corporation was not sufficient to bring the corporation into the New York courts when, at the time of service, the corporation was not doing business in New York, and the director was not there officially representing the corporation in its business.[712] On occasion, an officer of a corporation may temporarily be in a State or even temporarily reside therein; but if he is not there for the purpose of transacting business for the corporation, or vested with authority by the corporation to transact business in such State, his presence affords no basis for the exercise of jurisdiction over such nonresident employer, and any decree resulting from service upon such officer is violative of due process.[713] However, a foreign insurance corporation which had ceased to sell insurance in Tennessee but which had sent a special agent there to adjust a loss under a policy previously issued in that State could not, it was held, constitutionally object when a judgment on that claim was obtained by service on that agent.[714] Inasmuch as a State need not permit a foreign corporation to do domestic business within its borders, it may condition entry upon acceptance by the corporation of service of process upon its agents or upon a person to be designated by the corporation or, failing such designation, upon a State officer designated by law.[715] Service on a State officer, however, is no more effective than service upon an agent in the employ of a foreign corporation when, as has already been noted, such corporation is not subject to the jurisdiction of the State; that is, has not engaged in activities sufficient to render it "present" within the State, or is subjected to a cause of action unrelated to such activities and originating beyond the forum State. Thus, a foreign insurance company which, after revocation of its entry license, continued to collect premiums on policies formerly issued to citizens of the forum State was in fact continuing to do business in that State sufficiently to render service on it through the insurance commissioner adequate to bind it as defendant in a suit by a citizen of said State on a policy therein issued to him.[716] Furthermore, a foreign corporation which, after leaving a State and subsequently dissolving, failed to obey a statutory requirement of that State that it maintain therein a resident agent until the period of limitations shall have run, or, in default thereof, that it consent to service on it through the Secretary of State, could not complain of any denial of due process because that statute did not oblige the Secretary of State to notify it of the pendency of an action. The burden was on the corporation to make such arrangement for notice as was thought desirable.[717] To what extent these aforementioned holdings have been undermined by the recent opinion in International Shoe Co. _v._ Washington[718] cannot yet be determined. In the latter case, a foreign corporation, which had not been issued a license to do business in Washington, but which systematically and continuously employed a force of salesmen, residents thereof, to canvass for orders therein, was held suable in Washington for unpaid unemployment compensation contributions in respect to such salesmen. Service of the notice of assessment personally upon one of its local sales solicitors plus the forwarding of a copy thereof by registered mail to the corporation's principal office in Missouri was deemed sufficient to apprize the corporation of the proceeding. To reach this conclusion the Court not only overturned prior holdings to the effect that mere solicitation of patronage does not constitute doing of business in a State sufficient to subject a foreign corporation to the jurisdiction thereof,[719] but also rejected the "presence" test as begging "the question to be decided. * * * The terms 'present' or 'presence,'" according to Chief Justice Stone, "are used merely to symbolize those activities of the corporation's agent within the State which courts will deem to be sufficient to satisfy the demands of due process. * * * Those demands may be met by such contacts of the corporation with the State of the forum as make it reasonable, in the context of our federal system * * *, to require the corporation to defend the particular suit which is brought there; [and] * * * that the maintenance of the suit does not offend 'traditional notices of fair play and substantial justice' * * * An 'estimate of the inconveniences' which would result to the corporation from a trial away from its 'home' or principal place of business is relevant in this connection."[720] As to the scope of application to be accorded this "fair play and substantial justice" doctrine, the Court, at least verbally, conceded that "* * * so far as * * * [corporate] obligations arise out of or are connected with activities within the State, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue."[721] Read literally, these statements coupled with the terms of the new doctrine may conceivably lead to a reversal of former decisions which: (1) nullified the exercise of jurisdiction by the forum State over actions arising outside said State and brought by a resident plaintiff against a foreign corporation doing business therein without having been legally admitted and without having consented to service of process on a resident agent; and (2) exempted a foreign corporation, which has been licensed by the forum State to do business therein and has consented to the appointment of a local agent to accept process, from suit on an action not arising in the forum State and not related to activities pursued therein. By an extended application of the logic of the last mentioned case, a majority of the Court, in Travelers Health Assn. _v._ Virginia[722] ruled that, notwithstanding that it solicited business in Virginia solely through recommendations of existing members and was represented therein by no agents whatsoever, a foreign mail order insurance company had through its policies developed such contacts and ties with Virginia residents that the State, by forwarding notice to the company by registered mail only, could institute enforcement proceedings under its Blue Sky Law leading to a decree ordering cessation of business pending compliance with that act. The due process clause was declared not to "forbid a State to protect its citizens from such injustice" of having to file suits on their claims at a far distant home office of such company, especially in view of the fact that such suits could be more conveniently tried in Virginia where claims of loss could be investigated.[723] Service of Process Actions in Rem--Proceedings Against Land.--For the purpose of determining the extent of a nonresident's title to real estate within its limits, a State may provide any reasonable means of imparting notice.[724] Precluded from going beyond its boundaries and serving nonresident owners personally, States in such cases of necessity have had recourse to constructive notice or service by publications. This they have been able to do because of their inherent authority over titles to lands within their borders. Owners, nonresident as well as resident, are charged with knowledge of laws affecting demands of the State pertinent to property and of the manner in which such demands may be enforced.[725] Accordingly, only so long as the property affected has been brought under control of the Court, will a judgment obtained thereto without personal notice to a nonresident defendant be effective. Insofar as jurisdiction is thus required over a nonresident, it does not extend beyond the property involved.[726] Consistently with such principles, San Francisco, after the earthquake of 1906, had destroyed nearly all records, permitted titles to be reestablished by parties in possession by posting summons on the property, serving them on known claimants, and publishing them against unknown claimants in newspapers for two weeks.[727] Actions in Rem--Attachment Proceedings.--In fulfillment of the protection which a State owes to its citizens, it may exercise its jurisdiction over real and personal property situated within its borders belonging to a nonresident and permit an appropriation of the same in attachment proceedings to satisfy a debt owed by the nonresident to one of its citizens or to settle a claim for damages founded upon a wrong inflicted on the citizen by the nonresident. Being neither present within the State nor domiciled therein, the nonresident defendant cannot be served personally; and consequently any judgment in money obtained against him would be void and could not thereafter be satisfied either by execution on the nonresident's property subsequently found within the State or by suit and execution thereon in another State. In such instances, the citizen-plaintiff may recover, if at all, only by an _in rem_ proceeding involving a levy of a writ of attachment on the local property of the defendant, of which proceeding the nonresident need be notified merely by publication of a notice within the forum State. However, any judgment rendered in such proceedings can have no consequence beyond the property attached. If the attached property be insufficient to pay the claim, the plaintiff cannot thereafter sue on such judgment to collect an unpaid balance; and if property owned by the defendant cannot be found within the State, the attachment proceedings are, of course, summarily concluded.[728] Actions in Rem--Corporations, Estates, Trusts, Etc.--Probate administration, being in the nature of a proceeding _in rem_, is one to which all the world is charged with notice.[729] Thus, in a proceeding against an estate involving a suit against an administratrix to foreclose a mortgage executed by the decedent, the heir, notwithstanding that the suit presents an adverse claim the disposition of which may be destructive of his title to land deriving from the decedent, may properly be represented by the administratrix and is not entitled to personal notification or summons.[730] For like reasons, a statutory proceeding whereunder a special administrator, having charge of an estate pending a contest as to the validity of the will, is empowered to have a final settlement of his accounts without notice to the distributees, is not violative of due process. The executor, or administrator c.t.a., has an opportunity to contest the final settlement of the special administrator before giving the latter an acquittance; and since the former represents all claiming under the will, it cannot be said the absence of notice to the distributees of the settlement deprives them of their rights without due process of law.[731] In litigation to determine succession to property by proceedings in escheat, due process is afforded by personal service of summons upon all known claimants and constructive notice by publication to all claimants who are unknown.[732] Whether a proceeding by the State to compel a bank to turn over to it unclaimed deposits in _quasi in rem_ or strictly _in rem_, the essentials of jurisdiction over the deposit are that there be a seizure of the _res_ at the commencement of the suit and reasonable notice and opportunity to be heard. These requirements are met by personal service on the bank and publication of summons to depositors and of notice to all other claimants. The fact that no affidavit of impracticability of personal service on claimants is required before publication of such notices does not render the latter unreasonable inasmuch as they are used only in cases where the depositor is not known to the bank officers to be alive.[733] Similarly, a Kentucky statute requiring banks to turn over to the State deposits long inactive is not violative of due process where, although the deposits are taken over upon published notice only, without any judicial decree of actual abandonment, they are to be held by the State for the depositor until such determination and for five years thereafter.[734] However, a procedure is at least partly defective whereby a bank managing a common trust fund in favor of nonresident as well as resident beneficiaries may, by a petition, the only notice of which is by publication in a local paper, obtain a judicial settlement of accounts which is conclusive on all having an interest in the common fund or in any participating trust. Such notice by publication is sufficient as to beneficiaries whose interests or addresses are unknown to the bank, since there are no other more practicable means of giving them notice; but is inadequate as a basis for adjudication depriving of substantial rights persons whose whereabouts are known, inasmuch as it is feasible to make serious efforts to notify them at least by mail to their addresses on record with said bank.[735] On the other hand, failure to make any provision for notice to majority stockholders of a suit by dissenting shareholders, under a statute which provided that, on a sale or other disposition of all or substantially all of corporate assets, a dissenting shareholder shall have the right, after six months, to be paid the amount demanded, if the corporation makes no counter offer or does not abandon the sale, does not deny due process; for the majority stockholders are sufficiently represented by the corporation.[736] Actions in Rem--Divorce Proceedings.--The jurisdictional requirements for rendering a valid decree in divorce proceedings are considered under the full faith and credit clause. _See_ pp. 662-670. Misnomer of Defendant--False Return, Etc.--An unattainable standard of accuracy is not imposed by the due process clause. If a defendant within the jurisdiction is served personally with process in which his name is misspelled, he cannot safely ignore it on account of the misnomer. If he fails to appear and plead the misnomer in abatement, the judgment binds him. In a published notice intended to reach absent or nonresident defendants, where the name is a principal means of identifying the person concerned, somewhat different considerations obtain. The general rule, in case of constructive service of process by publication, tends to strictness. However, published notice to "Albert Guilfuss, Assignee," in a suit to partition land, was adequate to render a judgment binding on "Albert B. Geilfuss, Assignee," the latter not having appeared.[737] Foreclosure of a mortgage made upon process duly issued but which the sheriff falsely returned as having been duly served, and of which the owner had no notice, does not deprive said owner of property without due process of law. A purchaser of the land at the sheriff's sale has a right to rely on such return; otherwise judicial proceedings could never be relied upon. The mortgagor must seek his remedy against the sheriff upon his bond.[738] Notice and Hearing Legislative Proceedings.--While due notice and a reasonable opportunity to be heard to present one's claim or defense have been declared to be two fundamental conditions almost universally prescribed in all systems of law established by civilized countries,[739] there are certain proceedings appropriate for the determination of various rights in which the enjoyment of these two privileges has not been deemed to be constitutionally necessary. Thus the Constitution does not require legislative assemblies to discharge their functions in town meeting style; and it would be manifestly impracticable to accord every one affected by a proposed rule of conduct a voice in its adoption. Advanced notice of legislation accordingly is not essential to due process of law; nor need legislative bodies preface their enactment of legislation by first holding committee hearings thereon. It follows therefore that persons adversely affected by a specific law can never challenge its validity on the ground that they were never heard on the wisdom or justice of its provisions.[740] Administrative Proceedings.--To what extent notice and hearing are deemed essential to due process in administrative proceedings, encompassing as they do the formulation and issuance of general regulations, the determination of the existence of conditions which have the effect of bringing such regulations into operation, and the issuance of orders of specific, limited application, entails a balancing of considerations as to the desirability of speed in law enforcement and protection of individual interests. When an administrative agency engages in a legislative function, as, for example, when, in pursuance of statutory authorization, it drafts regulations of general application affecting an unknown number of people, it need not, any more than does a legislative assembly, afford a hearing prior to promulgation. On the other hand, if a regulation, sometimes described as an order or action of an administrative body, is of limited application; that is, affects the property or interests of specific, named individuals, or a relatively small number of people readily identifiable by their relation to the property or interests affected, the question whether notice and hearing is prerequisite and, if so, whether it must precede such action, becomes a matter of greater urgency. But while a distinction readily may be made, for example, between a regulation establishing a schedule of rates for all carriers in a State, and one designed to control the charges of only one or two specifically named carriers, the cases do not consistently sustain the withholding of advance notice and hearing in the first class of regulations and insist upon its provision in the latter. In fact, the observation has been made that the judicial disposition to exact the protection of notice and hearing rises in direct proportion to the extent to which a regulation affects the finances of business establishments covered thereunder. Accordingly, if a regulation bears only indirectly upon income and expenses, as for example, a regulation altering insurance policy forms, less concern for such procedural protection is likely to be expressed than in the case of the formulation of a minimum wage schedule, even though the regulations involved in both illustrations are general and not limited in operation. Moreover, if regulations, which are general in their application, may be readily subjected to judicial challenge after their promulgation, or if the parties to which they apply are affected only when they endeavor to comply in the future, advance notice and hearing is less likely to be viewed as essential to due process.[741] As to that portion of administrative activity pertaining to the making of determinations or the issuance of orders of limited or individual application, the obligation to afford notice and hearing is reasonably clear; but controversy has been protracted on the question whether this procedural safeguard, in every instance, must be granted in advance of such activity. The most frequently litigated types of administrative action embracing the latter issue have been determinations to withhold issuance of, or to revoke, an occupational license, or to impound or destroy property believed to be dangerous to public health, morals, or safety. Apparently in recognition of the fact that few occupations today can be pursued without a license, the trend of decisions is toward sustaining a requirement of a hearing before refusal to issue a license and away from the view that inasmuch as no one is entitled as of right to engage in a specific profession, the issue of a practitioner's license applicable thereto is in the nature of a gift as to the granting or withholding of which procedural protection is unnecessary. Revocation, or refusal to renew a license, however, has been distinguished from issuance of a license; and where a license is construed to confer something in the nature of a property right rather than a mere privilege terminable at will, such property right, the Courts have maintained, ought not to be destroyed summarily by revocation without prior notice and hearing. Whether an occupational license is to be treated as a privilege revocable without a hearing, or as conferring a property right deserving of greater protection, depends very largely on prevailing estimates of the social desirability of a calling. Thus, if a business is susceptible of being viewed as injurious to public health, morals, safety, and convenience, as, for example, saloons, pool rooms, and dance halls, the licensee is deemed to have entered upon such line of endeavor with advance knowledge of the State's right to withdraw his license therefor summarily. Prompt protection of the public in such instances is said to outweigh the advantages of a slower procedure, retarded by previous notice and hearing, and to require that the person adversely affected seek his remedy from the Court via a petition to review or to enjoin the decision of the licensing authorities.[742] For like reasons, the owner of property about to be impounded or destroyed by officers acting in furtherance of the police power may justifiably be relegated to post mortem remedies in the form of a suit for damages against the officer effecting the seizure or destruction, or, if time permits, a bill in equity for an injunction. Thus, due process of law is not denied the custodian of food in cold storage by enforcement of a city ordinance under which such food, when unfit for human consumption, may summarily be seized, condemned, and destroyed without a preliminary hearing. "If a party cannot get his hearing in advance of the seizure and destruction he has the right to have it afterward, * * * in an action brought for the destruction of his property, and in that action those who destroyed it can only successfully defend if the jury shall find the fact of unwholesomeness as claimed by them."[743] Similarly, if the owner of liquor, possession of which has been made unlawful, can secure a hearing by instituting injunction proceedings, he is not denied due process by the failure to grant him a hearing before seizure and destruction of his property.[744] Indeed, even when no emergency exists, such as is provided by a conflagration or threatened epidemic, and the property in question is not intrinsically harmful, mere use in violation of a valid police power regulation has been held to justify summary destruction. Thus, in the much criticized case of Lawton _v._ Steele,[745] the destruction, without prior notice and hearing, of fishing nets set in violation of a conservation law defining them to be a nuisance was sustained on the ground that the property was not "of great value." Conceding that "it is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation," the Court acknowledged that "if the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be * * * dangerous * * * to permit * * * [an officer] to sell or destroy it as a public nuisance, * * * But where the property is of trifling value, * * * we think it is within the power of the legislature to order its summary abatement."[746] Statutory Proceedings.--"It is not an indispensable requirement of due process that every procedure affecting the ownership or disposition of property be exclusively by judicial proceeding. Statutory proceedings affecting property rights, which, by later resort to the courts, secure to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process."[747] Thus, a procedure under which a State banking superintendent, after having taken over a closed bank and issued notices to stockholders of their assessment, may issue execution for the amounts due, subject to the right of each stockholder, by affidavit of illegality, to contest his liability for such an assessment, does not in effect authorize an execution and creation of a lien before and without any judicial proceeding. The fact that the execution is issued in the first instance by an agent of the State and not from a court, followed by personal notice and a right to take the case into court, is open to no objection. The statute authorizing this procedure is itself notice to stockholders that on becoming such they assumed the liability on which they are to be held.[748] Judicial Proceedings.--Consistently with the due process clause, a State may not enforce a judgment against a party named in the proceedings without an opportunity to be heard at sometime before final judgment is entered.[749] As to the presentation of every available defense, however, the requirements of due process do not entail affording an opportunity to do so before entry of judgment. A hearing by an appeal may suffice. Accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity of a hearing on the issue of liability thereon, was not denied due process where the State practice provided the opportunity for such hearing by an appeal from the judgment so entered. Nor could the company found its claim of denial upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the State courts.[750] On the other hand, where a State Supreme Court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material, was held to have been deprived of his rights without due process of law.[751] Sufficiency of Notice and Hearing.--Although the Supreme Court has wavered on the question whether the granting of notice in administrative proceedings, in cases in which the authorizing statute does not expressly provide therefor, will satisfy the requirements of due process,[752] in judicial proceedings it has almost consistently declared that notice must be provided as an essential part of the statutory provision and not as a mere matter of favor or grace.[753] Also, the notice afforded must be adequate for the purpose. Thus, a Texas statute providing for service of process by giving five days' notice was held to be an insufficient notice to a Virginian who would (at that time) have required four days' traveling to reach the place where the court was held. Nor would this insufficiency of notice on a nonresident be cured by the fact that under local practice there would be several additional days before the case would be called for trial or that the court would probably set aside a default judgment and permit a defense when the nonresident arrived.[754] On the other hand, a statute affording ten days' notice of the time for settlement of the account of a personal representative in probate proceedings is not wanting in due process of law as to a nonresident.[755] Adequacy, moreover, is no less an essential attribute of a hearing than it is of notice; and, as the preceding discussion has shown, unless a person involved in administrative as well as judicial proceedings has received a hearing that is both sufficient and fair and has been subjected to rulings amply supported by the evidence introduced thereat, he will not be considered to have been accorded due process.[756] POWER OF STATES TO REGULATE PROCEDURE Generally The due process clause of the Fourteenth Amendment does not control mere forms of procedure in State courts or regulate practice therein.[757] A State "is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."[758] Pursuant to such plenary power, States have regulated the manner in which rights may be enforced and wrongs remedied,[759] and, in connection therewith, have created courts and endowed them with such jurisdiction as, in the judgment of their legislatures, seemed appropriate.[760] Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure are issues which can give rise to no conflict with the Fourteenth Amendment; for the latter's function is negative rather than affirmative and in no way obligates the States to adopt specific measures of reform.[761] Pleading and Practice Commencement Of Actions.--A State may impose certain conditions on the right to institute litigation. Thus, access to the courts may be denied to persons instituting stockholders' derivative actions unless reasonable security for the costs, and fees incurred by the corporation is first tendered. Nor is the retroactive application of this statutory requirement to actions pending at the time of its adoption violative of due process as long as no new liability for expenses incurred before enactment is imposed thereby, and the only effect thereof is to stay such proceedings until the security is furnished.[762] Moreover, when a nonresident files suit in a local court, the State, as the price of opening its tribunals to such plaintiff, may exact the condition that the former stand ready to answer all cross-actions filed and accept any _in personam_ judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff's attorney of record.[763] For similar reasons, the requirements, without excluding other evidence, of a chemical analysis as a condition precedent to a suit to recover damages resulting to crops from allegedly deficient fertilizers is not deemed to be arbitrary or unreasonable.[764] Pleas in Abatement.--State legislation which forbids a defendant to come into court and challenge the validity of service upon him in a personal action without thereby surrendering himself to the jurisdiction of the Court, but which does not restrain him from protecting his substantive rights against enforcement of a judgment rendered without service of process, is constitutional and does not deprive him of property without due process of law. Such a defendant, if he please, may ignore the proceedings as wholly ineffective, and set up the invalidity of the judgment if and when an attempt is made to take his property thereunder. However, if he desires to contest the validity of the proceedings in the court in which it is instituted, so as to avoid even semblance of a judgment against him, it is within the power of a State to declare that he shall do this subject to the risk of being obliged to submit to the jurisdiction of the Court to hear and determine the merits, if the objection raised by him as to its jurisdiction over his person shall be overruled.[765] Defenses.--Just as the State may condition the right to institute litigation, so may it establish its terms for the interposition of certain defenses. Thus, by statute a State validly may provide that one sued in a possessory action cannot bring an action to try title until after judgment shall have been rendered in the possessory action, and until he shall have paid the judgment, if the decision shall have so awarded.[766] Likewise, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot successfully challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend. "The condition imposed has a reasonable relation to the conversion of a proceeding _quasi in rem_ into an action _in personam_; [and] ordinarily * * * is not difficult to comply with--* * *"[767] Amendments and Continuances.--Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal; accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.[768] Costs, Damages, and Penalties.--What costs are allowed by law is for the court to determine; and an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.[769] Nor does a statute providing for the recovery of reasonable attorney's fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.[770] Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.[771] Also, as a reasonable incentive for prompt settlement without suit of just demands of a class admitting of special legislative treatment, such as common carriers and insurance companies together with their patrons, a State through the exercise of its police power may permit harassed litigants to recover penalties in the form of attorney's fees or damages.[772] Similarly, to deter careless destruction of human life, a State by law may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees.[773] Likewise, by virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a State may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine be called, whether it be a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.[774] Statutes of Limitation A statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce that right by suit. By the same token, a State may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period, however, is dependent on the nature of the right and particular circumstances.[775] Thus, an interval of only one year is not so unreasonable as to be wanting in due process when applied to bar actions relative to the property of an absentee in instances when the receiver for such property has not been appointed until 13 years after the former's disappearance.[776] Likewise, when a State, by law, suddenly prohibits, unless brought within six months after its passage, all actions to contest tax deeds which have been of record for two years, no unconstitutional deprivation is effected.[777] No less valid is a statute, applicable to wild lands, which provides that when a person has been in possession under a recorded deed continuously for 20 years, and had paid taxes thereon during the same, the former owner in that interval paying nothing, no action to recover such land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provision.[778] Similarly, an amendment to a workmen's compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive.[779] Moreover, as long as no agreement of the parties is violated, a State may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. As applied to actions for personal debts, a repeal or extension of a statute of limitations effects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. "A right to defeat a just debt by the statute of limitation * * * [not being] a vested right," such as is protected by the Constitution, accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property,[780] or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,[781] or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a State administered fund.[782] However, as respects suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title.[783] Also unconstitutional is the application of a local statute of limitation declaring invalid any contractual limitation of the right to sue to a period shorter than two years to an insurance contract made and to be performed outside the forum State and containing a stipulation that suit thereon must be brought within one year from the date of loss. "When the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates * * * [said] agreement and directs enforcement of the contract after * * * [the agreed] time has expired * * *" unconstitutionally imposes a burden in excess of that contracted.[784] Evidence and Presumptions The establishment of presumptions and rules respecting the burden of proof is clearly within the domain of State governments.[785] As long as a presumption is not unreasonable and is not conclusive of the rights of the person against whom raised, it does not violate the due process clause. Legislative fiat may not take the place of fact, however, in the determination of issues involving life, liberty, or property, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one's defense is void. On the other hand, if there is a rational connection between what is proved and what is to be inferred, legislation declaring that the proof of one fact or group of facts shall constitute _prima facie_ evidence of a main or ultimate fact will be sustained.[786] On the ground that the connection between the fact proven and that presumed was not sufficient and that reasoning did not lead from one to the other, the following statutory presumptions have been voided. Thus, a statute which treated a breach of a contract to labor as _prima facie_ evidence of an intent to defraud an employer of money paid by him in advance was found to be constitutionally defective because the trial court was permitted to disregard evidence rationally bearing upon fraud and to decide upon evidence pertaining to an unrelated breach of contract, with the consequence that an adequate hearing upon fraud was not afforded.[787] Also, since "inference of crime and guilt may not reasonably be drawn from mere inability [of a bank] to pay demand deposits and other debts as they mature," a statute making proof of insolvency _prima facie_ evidence of fraud on the part of bank directors was deemed wholly arbitrary.[788] Similarly, negligence by one or all the participants in a grade crossing collision not being inferable from the latter occurrence, the Court voided a Georgia statute which declared that a railroad shall be liable in damages to person or property by the running of trains unless the company shall make it appear that its agents exercised ordinary diligence, the presumption in all cases being against the company, and which was construed by State courts as permitting said presumption of evidence to be weighed against opposing testimony and to prevail unless such testimony is found by a jury to be preponderant.[789] On the other hand, a South Carolina statute which raised a presumption of negligence against a railroad upon proof of failure to give prescribed warning signals was sustained because the presumption therein established gave rise merely to a temporary inference which might be rebutted by contrary evidence and which is thereafter to be excluded in determining proximate cause.[790] Presumptions sustained as constitutionally tenable include those set out in statutes providing that when distillery apparatus is found upon the premises of an individual, such discovery shall be _prima facie_ evidence of actual knowledge of the presence of the same;[791] that the flowing, release, or escape of natural gas into the air shall constitute _prima facie_ evidence of prohibited waste,[792] and that prior conviction of a felony shall be conclusive evidence of bad character justifying refusal to issue a license to practice medicine.[793] Upheld, consistently with the former, were two sections of the California alien land law; one, which specified that the taking of title in the name of a person eligible to hold land, where the consideration is furnished by one ineligible to acquire agricultural land, shall raise a _prima facie_ presumption that the conveyance is made to evade the law;[794] and a second, which cast upon a Japanese defendant the burden of proving citizenship by birth after the State endeavored to prove that he belonged to a race ineligible for naturalization.[795] In contrast with the latter result, however, is a subsequent decision of the Court holding unconstitutional another section of the same California law providing that when an indictment alleges alienage and ineligibility to United States citizenship of a defendant, the burden of proving citizenship or eligibility thereto shall devolve upon the defendant.[796] As a basis for distinguishing these last two decisions the Court observed that while "the decisions are manifold that within [the] limits" of fairness[797] and reason the burden of proof may be shifted to the defendant even in criminal prosecutions, nevertheless, to be justified, "the evidence held to be inculpatory * * * [must have had] at least a sinister significance * * *, or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, * * *" Whereas, accordingly, under the terms of the section previously upheld, the defendant could prove his citizenship without trouble, and the State, if forced to disprove his claim, could be relatively helpless, the background of the accused party being known probably only to himself and close relatives, the alleged Japanese defendant, in the last mentioned case, would have suffered hardship and injustice if compelled to prove non-Japanese origin, especially since ineligibility renders criminal conduct otherwise lacking in "sinister significance" (occupation of land under lease from an American codefendant).[798] On the other hand, it was held in a recent case, that Oregon was entitled to require that one pleading insanity as a defense against a criminal charge should prove same beyond a reasonable doubt, and to make "morbid propensity" no defense.[799] Jury Trials: Dispensing With Jury Trials Trial by jury has not been considered essential to due process, and since the Fourteenth Amendment guarantees no particular form or method of procedure, States have been free to retain or abolish juries.[800] Conformably to the Constitution, States, in devising their own procedures, eliminated juries in proceedings to enforce liens,[801] inquiries for contempt,[802] mandamus[803] and quo warranto actions,[804] and in eminent domain[805] and equity proceedings.[806] States are equally free to adopt innovations respecting the selection and number of jurors. Verdicts rendered by ten out of twelve jurors may be substituted for the requirement of a unanimous verdict,[807] and petit juries containing eight rather than the conventional twelve members may be established.[808] DUE PROCESS IN CRIMINAL PROCEEDINGS General In the following pages the requirements of the due process clause of Amendment XIV in criminal cases will be dealt with in approximately the order in which questions regarding them arise in the course of a prosecution. Indefinite Statutes: Right of Accused to Knowledge of Offense "A statute so vague and indefinite, in form and as interpreted, * * * [as to fail] to give fair notice of what acts will be punished, * * *, violates an accused's rights under procedural due process * * * [A penal statute must set up] ascertainable standards of guilt. [So that] men of common intelligence * * * [are not] required to guess at * * * [its] meaning," either as to persons within the scope of the act or as to applicable tests to ascertain guilt.[809] Defective by these tests and therefore violative of due process is a statute providing that any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime in this or any other State, is a gangster and subject to fine or imprisonment. Pointing to specific shortcomings of this act, the Supreme Court observed that "* * * neither [at] common law, * * * nor anywhere in the language of the law is there [to be found any] definition of the word, * * * 'gang'." The State courts, in adopting dictionary definitions of that term, were not to be viewed as having intended to give "gangster" a meaning broad enough to include anyone who had not been convicted of a specified crime or of disorderly conduct as set out in the statute, or to limit its meaning to the field covered by the words that they found in a dictionary ("roughs, thieves, criminals"). Application of the latter interpretation would include some obviously not within the statute and would exclude some plainly covered by it. Moreover, the expression, "known to be a member," is ambiguous; and not only permits a doubt as to whether actual or putative association is meant, but also fails to indicate what constitutes membership or how one may join a gang. In conclusion, the Supreme Court declared that if on its face a challenged statute is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it; for it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.[810] In contrast, the Court sustained as neither too vague nor indefinite a State law which provided for commitment of a psychopathic personality by probate action akin to a lunacy proceeding, and which was construed by the State court as including those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to inflict injury. The underlying conditions, i.e., habitual course of misconduct in sex matters and lack of power to control impulses, and likelihood of attack on others, were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal prosecutions.[811] Abolition of the Grand Jury An indictment or presentment by a grand jury, as known to the common law of England, is not essential to due process of law even when applied to prosecutions for felonies. Substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution is due process of law.[812] Furthermore, due process does not require that the information filed by the prosecuting attorney should have been preceded by the arrest or preliminary examination of the accused.[813] Even when an information is filed pending an investigation by the coroner, due process has not been violated.[814] But when the grand jury is retained it must be fairly constituted. Thus, in the leading case, an indictment by a grand jury in a county of Alabama in which no member of a considerable Negro population had ever been called for jury service, was held void, although the Alabama statute governing the matter did not discriminate between the two races.[815] The Right to Counsel Whatever previously may have been recognized as constituting the elements of procedural due process in criminal cases, it was not until 1932[816] that the Supreme Court acknowledged that the right "to have the assistance of counsel for * * * [one's] defense," guaranteed as against the National Government by the Sixth Amendment, was of such fundamental character as to be embodied in the concept of due process of law as set forth in the Fourteenth Amendment. Later in 1937, it effected this incorporation by way of expansion of the term, "liberty," rather than, "due process," and conceded that the right to counsel was "implicit in the concept of ordered liberty."[817] For want of adequate enjoyment of the right to counsel, the Court, in Powell _v._ Alabama,[818] overturned the conviction of Negroes who had received sentences of death for rape, and asserted that, at least in capital cases, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of Law. The duty is not discharged by an assignment at such time or under such circumstances as to preclude the giving of effective aid in preparation and trial of the case. Under certain circumstances (e.g., ignorance and illiteracy of defendants, their youth, public hostility, imprisonment and close surveillance by military forces, fact that friends and families are in other States, and that they stand in deadly peril of their lives), the necessity of counsel is so vital and imperative that the failure of a trial court to make an effective appointment of counsel is a denial of due process of law.[819] By its explicit refusal in Powell _v._ Alabama to consider whether denial of counsel in criminal prosecutions for less than capital offenses or under other circumstances[820] was equally violative of the due process clause, the Court left undefined the measure of the protection available to defendants; and its first two pertinent decisions rendered thereafter, contributed virtually nothing to correct that deficiency. In Avery _v._ Alabama,[821] a State trial court was sustained in its refusal to continue a murder case upon request of defense counsel appointed by said court only three days before the trial, who contended that they had not had sufficient time to prepare a defense, and in its subsequent rejection of a motion for a new trial which was grounded in part on the contention that the denial of the continuance was a deprivation of the prisoner's rights under the Fourteenth Amendment. Apart from an admission that "where denial of the constitutional right to assistance of counsel is asserted, its peculiar sacredness demands that we scrupulously review the record," a unanimous Court proffered only the following vague appraisal of the application of the Fourteenth Amendment: "In determining whether petitioner has been denied his constitutional right * * *, we must remember that the Fourteenth Amendment does not limit the power of the States to try and deal with crimes committed within their borders, and was not intended to bring to the test of a decision of this Court every ruling made in the course of a State trial. Consistently with the preservation of constitutional balance between State and federal sovereignty, this Court must respect and is reluctant to interfere with the States' determination of local social policy."[822] One year later, the Court made another inconclusive observation in Smith _v._ O'Grady,[823] in which it stated that if true, allegations in a petition for _habeas corpus_ showing that the petitioner, although an uneducated man and without prior experience in court, was tricked into pleading guilty to a serious crime of burglary, and was tried without the requested aid of counsel would void the judgment under which he was imprisoned. Conceding that the above mentioned opinions "lend color to the argument," though they did not actually so rule, that "in every case, whatever the circumstances, one charged with crime, who is unable to obtain counsel, must be furnished counsel by the State," the Court, in Betts _v._ Brady,[824] decided in 1942, not only narrowed the scope of the right of the accused to the "assistance of counsel," but also set at rest any question as to the constitutional source from which the right was derived. Offering State courts the following vague guide for determining when provision of counsel is constitutionally required, the Court declared that "the Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel * * * Asserted denial of due process is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial."[825] Accordingly, an indigent farm laborer was deemed not to have been denied due process of law when he was convicted of robbery by a Maryland county court, sitting without a jury, which was not required by statute[826] to honor his request for counsel and whose "practice," in fact was to afford counsel only in murder and rape cases. Finally, the Court emphatically rejected the notion, suggested, however faintly by the older decisions, that the Fourteenth Amendment "incorporates the specific guarantees found in the Sixth Amendment, although it recognized that a denial of the rights stipulated in the latter Amendment may in a given case amount to a deprivation of due process."[827] Having thus construed the due process clause of the Fourteenth Amendment as not inclusive of the Sixth Amendment and as requiring no more than a fair trial which, on occasion, may necessitate the protection of counsel, the Court, in succeeding decisions rendered during the interval, 1942-1946, proceeded to subject Betts _v._ Brady to the "silent treatment." In Williams _v._ Kaiser[828] and Tomkins _v._ Missouri[829] two defendants pleaded guilty without counsel to the commission in Missouri of capital offenses, one, to robbery with a deadly weapon, and the second, to murder. Defendant, Williams contended that, notwithstanding his request, the trial court did not appoint counsel, whereas defendant, Tomkins alleged that he was ignorant of his right to demand counsel under the Missouri statute. In ruling that the defendants' petitions for _habeas corpus_ should not have been rejected by Missouri courts without a hearing, the Supreme Court relied almost entirely upon the quotations from Powell _v._ Alabama[830] previously set forth herein; and reiterated that the right to counsel in felony cases being protected by the Fourteenth Amendment, the failure of a State court to appoint counsel is a denial of due process. "A layman," the Court added, "is usually no match for the skilled prosecutor whom he confronts in the court room. He needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment."[831] Nor was Betts _v._ Brady mentioned in the following pertinent decisions. In House _v._ Mayo,[832] the Supreme Court held that the action of a trial court in compelling a defendant to plead to an information charging burglary without opportunity to consult with his counsel is a denial of the constitutional right to counsel; and in Hawk _v._ Olson[833] the Court repeated this assertion, in connection with the denial to a defendant accused of a murder of the same opportunity during the critical period between his arraignment and the impaneling of the jury. Both these opinions cited with approval the two previously discussed Williams and Tomkins Cases; and in House _v._ Mayo the Court declared without any explanation: "Compare Betts _v._ Brady with Williams _v._ Kaiser and Tomkins _v._ Missouri."[834] A similar performance by the Court is also discernible in Rice _v._ Olson,[835] in which it ruled that a defendant, who pleads guilty to a charge of burglary, is incapable adequately of making his own defense, and does not understandingly waive counsel; he is entitled to the benefit of legal aid, and a request therefor is not necessary. Also, on the basis of unchallenged facts contradicting a prisoner's allegation that he had been denied counsel; namely, that after his arraignment and plea of guilty to a charge of robbery, counsel had noted an appearance for him two days before the date of sentencing and had actively intervened in his behalf on the latter date, a majority of the Court, in Canizio _v._ New York,[836] ruled that the right to counsel had not been withheld. Without mentioning Betts _v._ Brady by name, the Court, in 1946, returned to the fair trial principle enunciated therein when it held that no deprivation of the constitutional right to the aid of counsel was disclosed by the record in Carter _v._ Illinois.[837] That record included only the indictment, the judgment on the plea of guilty to a charge of murder, the minute entry bearing on the sentence, and the sentence, together with a lengthy recital in the judgment to the effect that when the defendant expressed a desire to plead guilty the Court explained to him the consequence of such plea, his rights in the premises, especially, his rights to have a lawyer appointed to defend him and to be tried before a jury, and the degree of proof required for an acquittal under a not guilty plea, but that the defendant persisted in his plea of guilty. Emphasizing that this record was entirely wanting in facts bearing upon the maturity or capacity of comprehension of the prisoner, or upon the circumstances under which the plea of guilty was tendered and accepted, the Supreme Court concluded that no inference of lack of understanding, or ability to make an intelligent waiver of counsel, could be drawn from the fact that the trial court did assign counsel when it came to sentencing.[838] Applying the same doctrine, and on this occasion at least citing Betts _v._ Brady, the Court, in De Meerleer _v._ Michigan,[839] unanimously declared that the arraignment, trial, conviction of murder, and sentence to life imprisonment, all on the same day, of a seventeen-year old boy who was without legal assistance, and was never advised of his right to counsel, who received from the trial court no explanation of the consequences of his plea of guilty, and who never subjected the State's witnesses to cross-examination, effected a denial of constitutional "rights essential to a fair hearing." Even more conclusive evidence of the revival of the fair trial doctrine of Betts _v._ Brady is to be found in the majority opinions contained in Foster _v._ Illinois[840] and Gayes _v._ New York.[841] In the former the Court ruled that where it appears that the trial court, before accepting pleas of guilty to charges of burglary and larceny by defendants, aged 34 and 58 respectively, advised each of his rights of trial and of the consequences of such a plea, the fact that the record reveals no express offer of counsel would not suffice to show that the accused were deprived of rights essential to the fair hearing required by the due process clause. Reiterating that the absolute right to counsel accorded by the Sixth Amendment does not apply in prosecutions in State courts, five of the Justices declared that all the due process clause of the Fourteenth Amendment "exacts from the States is a conception of fundamental justice" which is neither "satisfied by merely formal procedural correctness, nor * * * confined by any absolute rule such as that which the Sixth Amendment contains in securing to an accused [in the federal courts] 'the Assistance of Counsel for his defense.'"[842] On the same day, four Justices, with Justice Burton concurring only in the result, held in Gayes _v._ New York,[843] that one sentenced in 1941 as a second offender under a charge of burglary was not entitled to vacation of a judgment rendered against him in 1938, when charged with the first offense, on the ground that when answering in the negative the trial court's inquiry as to whether he desired the aid of counsel, he did not understand his constitutional rights. On his subsequent conviction in 1941, which took into account his earlier sentence of 1938, the defendant was deemed to have had full opportunity to contest the constitutionality of his earlier sentence. Consistently with these two cases, the Court in Marino _v._ Ragen,[844] decided later in the same year, held that the absence of counsel, in conjunction with the following set of facts, operated to deprive a defendant of due process. In this latter decision, the accused, an 18-year-old Italian immigrant, unable to understand the English language, was convicted of murder and sentenced to life imprisonment on a plea of guilty when, notwithstanding a recital in the record that he was arraigned in open court and advised through interpreters, one of whom was the arresting officer, of the meaning and effect of a "guilty" plea, and that he signed a statement waiving a jury trial and pleading guilty, the waiver was not in fact signed by him and no plea of guilty actually had been entered. In disposing of more recent cases embracing right to counsel as an issue, the Court, either with or without citation of Betts _v._ Brady, has consistently applied the fair trial doctrine. Thus, the absence of counsel competent to advise a 15-year-old Negro boy of his rights was one of several factors operating in Haley _v._ Ohio[845] to negative the propriety of admitting in evidence a confession to murder and contributing to the conclusion that the boy's conviction had resulted from proceedings that were unfair. Dividing again on the same issues in which they were in disagreement in Foster _v._ Illinois;[846] namely, the applicability of Amendment Six to State criminal prosecutions and the merits of the fair trial doctrine as expounded in Betts _v._ Brady, five Justices in Bute _v._ Illinois[847] ruled that the due process clause of the Fourteenth Amendment does not require a State court to tender assistance of counsel, before accepting a plea of guilty to a charge of indecent liberties with female children, the maximum penalty for which is 20 years, from a 57-year-old man who was not a lawyer and who received from the Court an explanation of the consequences and penalties resulting from such plea. Unanimity was subsequently regained in Wade _v._ Mayo[848] in which the Justices had before them the plight of an 18-year-old boy, convicted on the charge of breaking and entering, who was described by a federal district court as not a stranger in court, having been convicted of prior offenses, but as still unfamiliar with court procedure and not capable of representing himself adequately. On the strength of these and other findings, the Supreme Court held that where one charged with crime is by reason of age, ignorance, or mental incapacity incapable of defending himself, even in a prosecution of a relatively simple nature, the refusal of a State trial court to appoint counsel at his request is a denial of due process, even though the law of the State does not require such appointment. Dissents were again registered in the following brace of decision which a minority of the Justices declared their inability to reconcile. In the first, Gryger _v._ Burke,[849] the Court held that when one, sentenced to life imprisonment as a fourth offender under a State habitual criminal act, had been arrested eight times for crimes of violence, followed by pleas of guilty or conviction, and in two of such former trials had been represented by counsel, the State's failure to offer or to provide counsel for him on his plea to a charge of being a fourth offender does not render his conviction and sentence as such invalid, even though the Court may have misconstrued the statute as making a life sentence mandatory rather than discretionary. Emphasizing that there were "no exceptional circumstances * * * present," the majority asserted that "it rather overstrains our credulity to believe that [such a defendant would be ignorant] of his right [to request and] to engage counsel." In the second, Townsend _v._ Burke,[850] the Supreme Court declared that although failure of a State court to offer or to assign counsel to one charged with the noncapital offenses of burglary and robbery, or to advise him of his right to counsel before accepting a plea of guilty may not render his conviction invalid for lack of due process, the requirement is violated when, while disadvantaged by lack of counsel who might have corrected the court's errors, defendant is sentenced on the basis of materially untrue assumptions concerning his criminal record.[851] Concordant as to the results reached, if not always as to the reasoning supporting them, are the Court's latest rulings. In Uveges _v._ Pennsylvania,[852] it was held that inasmuch as the record showed that a State court did not attempt to make a 17-year-old youth understand the consequences of his plea of guilty to four separate indictments charging burglary, for which he could be given sentences aggregating 80 years, and that the youth was neither advised of his right to counsel nor offered counsel at any time between arrest and conviction, due process was denied him. Likewise, in Gibbs _v._ Burke[853] was overturned, as contrary to due process, the conviction for larceny of a man in his thirties who conducted his own defense, having neither requested, nor having been offered counsel. On the authority of the Uveges Case, accused's failure to request counsel, since it could be attributed to ignorance of his right thereto, was held not to constitute a waiver. Moreover, had the accused been granted the protection of counsel, the latter might have been able to prevent certain prejudicial rulings; namely, the introduction without objection of considerable hearsay testimony, the error of the trial judge in converting a prosecution witness into a defense witness, and finally, the injection of biased statements into the judge's comments to the jury. And of the same general pattern is the holding in Palmer _v._ Ashe,[854] another Pennsylvania case, involving a petitioner who alleged that, as a youth and former inmate at a mental institution, he was railroaded into prison for armed robbery without benefit of counsel, on the representation that he was charged only with breaking and entering. Reversing the State court's denial of petitioner's application for a writ of habeas corpus, the Court remanded the case, asserting that if petitioner's allegations were proven, he was entitled to counsel. On the other hand, it was held in Quicksall _v._ Michigan,[855] a State in which capital punishment does not exist, that a defendant who had received a life sentence on a plea of guilty entered without benefit of counsel, had "failed to sustain the burden of proving such disregard of fundamental fairness * * * as alone would * * * invalidate his sentence," not having convinced the State court that he was ignorant of his right to counsel, or that he had requested same, or that the consequences of his plea had been misrepresented to him. Also, in Gallegos _v._ Nebraska,[856] in which the petitioner had been convicted of manslaughter on a homicide charge, a similar conclusion was reached in the face of the petitioner's claim that the confession on the strength of which he was convicted had been obtained from him by mistreatment, prior to the assignment of counsel to him. Said the Court: "The Federal Constitution does not command a State to furnish defendants counsel as a matter of course. * * * Lack of counsel at State noncapital trials denies federal constitutional protection only when the absence results in a denial to accused of the essentials of justice."[857] By way of summation, the Court in Uveges _v._ Pennsylvania[858] offered the following comment on the conflicting views advanced by its members on this issue of right to counsel. "Some members [minority] of the Court think that where serious offenses are charged, failure of a court to offer counsel in State criminal trials deprives an accused of rights under the Fourteenth Amendment. They are convinced that the services of counsel to protect the accused are guaranteed by the Constitution in every such instance. _See_ Bute _v._ Illinois, 333 U.S. 640, dissent, 677-679. Only when the accused refuses counsel with an understanding of his rights can the Court dispense with counsel.[859] Others of us [majority] think that when a crime subject to capital punishment is not involved, each case depends on its own facts. _See_ Betts _v._ Brady, 316 U.S. 455, 462. Where the gravity of the crime and other factors--such as the age and education of the defendant,[860] the conduct of the court or the prosecuting officials,[861] and the complicated nature of the offense charged and the possible defenses thereto[862]--render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the latter group [majority] holds that the accused must have legal assistance under the amendment whether he pleads guilty or elects to stand trial, whether he requests counsel or not. Only a waiver of counsel, understandingly made, justifies trial without counsel. The philosophy behind both of these views is that the due process clause of the Fourteenth Amendment * * * requires counsel for all persons charged with serious crimes, when necessary for their adequate defense, in order that such persons may be advised how to conduct their trials. The application of the rule varies * * *" It would appear nevertheless that the statement quoted in the previous paragraph from the Gallegos Case weakens this doctrine somewhat. Nor is the Court's reply to the contention that such variation in application "leaves the State prosecuting authorities uncertain as to whether to offer counsel to all accused who are without adequate funds and under serious charges," very reassuring: "We cannot offer a panacea for the difficulty. * * * The due process clause is not susceptible of reduction to a mathematical formula."[863] Right to Trial by Jury The contention that a right to trial by a common law jury of twelve men in criminal cases was guaranteed by Amendment XIV was first rejected in Maxwell _v._ Dow[864] on the basis of Hurtado _v._ California,[865] where it was denied that the due process clause itself incorporated all the rules of procedural protection having their origin in English legal history. Accordingly, so long as all persons are made liable to be proceeded against in the same manner, a state statute dispensing with unanimity,[866] or providing for a jury of eight instead of twelve, in noncapital criminal cases[867] is not unconstitutional; nor is one eliminating employment of a jury when the defendant pleads guilty to no less than a capital offense;[868] or permitting a defendant generally to waive trial by jury.[869] In short, jury trials are no longer viewed as essential to due process, even in criminal cases, and may be abolished altogether.[870] Inasmuch as "the purpose of criminal procedure is not to enable the defendant to select jurors, but to secure an impartial jury," a trial of a murder charge by a "struck" jury, chosen in conformity with a statute providing that the court may select from the persons qualified to serve as jurors 96 names, from which the prosecutor and defendant may each strike 24, and that the remainder of which shall be put in the jury box, out of which the trial jury shall be drawn in the usual way, is not violative of due process. Such a method "is certainly a fair and reasonable way of securing an impartial jury," which is all that the defendant constitutionally may demand.[871] Likewise, the right to challenge being the right to reject, not to select, a juror, a defendant who is subjected at a single trial to two indictments, each charging murder, cannot complain when the State limits the number of his peremptory challenges to ten on each indictment instead of the twenty customarily allowed at a trial founded upon a single indictment.[872] Also, a defendant who has been convicted by a special, or "blue ribbon," jury cannot validly contend that he was thereby denied due process of law.[873] In ruling that the defendant had failed to sustain his contention that such a jury was defective as to its composition, the Court conceded that "a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process" and would result in a trial which was a "sham or pretense." A defendant is deemed entitled, however, to no more than "a neutral jury" and "has no constitutional right to friends on the jury."[874] In fact, the due process clause does not prohibit a State from excluding from the jury certain occupational groups such as lawyers, preachers, doctors, dentists, and enginemen and firemen of railroad trains. Such exclusions may be justified on the ground that the continued attention to duty by members of such occupations is beneficial to the community.[875] Self-Incrimination--Forced Confessions In 1908, in Twining _v._ New Jersey,[876] the Court ruled that neither the historical meaning nor the current definition of the due process clause of the Fourteenth Amendment included protection against self-incrimination, which was viewed as unworthy of being rated "an immutable principle of justice" or as a "fundamental right." The Fifth Amendment embodying this privilege was held to operate to restrain only the Federal Government; whereas the due process clause of the Fourteenth Amendment was deemed to permit a State even to go so far as to substitute the criminal procedure of the Civil Law, in which the privilege against self-incrimination is unknown, for that of the Common Law. Accordingly, New Jersey was within her rights in permitting a trial judge, in a criminal proceeding, to instruct a jury that they might draw an unfavorable inference from the failure of a defendant to comment on the prosecutor's evidence. Apart from a recent ineffectual effort of a minority of the Justices to challenge the interpretation thus placed upon the due process clause of the Fourteenth Amendment, the Court has yet to register any departure from its ruling in Twining _v._ New Jersey.[877] In two subsequent opinions the Court reasserted _obiter_ that "the privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the State." No "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"[878] is violated by abolition of such privilege; nor is its complete destruction likely to outrage students of our penal system, many of whom "look upon * * * [this] immunity as a mischief rather than a benefit, * * *"[879] In subsequently disposing of similarly challenged State criminal proceedings, the Court has applied almost exclusively the Fair Trial doctrine. With only casual consideration of the intention of the framers of the Fourteenth Amendment, or of the rejected proposition that the due process clause thereof had imposed upon the States all the restraints which the Bill of Rights had imposed upon the Federal Government, the Court has simply endeavored to ascertain whether the accused enjoyed all the privileges essential to a fair trial. Thus, without even admitting that the privilege against self-incrimination was involved, all the Justices agreed, in Brown _v._ Mississippi,[880] that the use of a confession extorted by brutality and violence (undenied strangulation and whipping by the sheriff aided by a mob) was a denial of due process, even though coercion was not established until after the confession had been admitted in evidence and defense counsel did not thereafter move for its exclusion. Although compulsory processes of justice may be used to call the accused as a witness and to require him to testify, "compulsion by torture to extort a confession is a different matter. * * * The rack and torture chamber may not be substituted for the witness stand."[881] Again, in Chambers _v._ Florida[882] the Court, with no mention of the privilege against self-incrimination, proclaimed that due process is denied when convictions of murder are obtained in State courts by the use of confessions extorted under the following conditions: dragnet methods of arrest on suspicion without warrant and protracted questioning (on the last day, from noon until sunset) in a fourth floor jail where the prisoners were without friends or counselors, and under circumstances calculated to break the strongest nerves and stoutest resistance. Affirming that the Supreme Court is not concluded by the finding of a jury in a State court that a confession in a murder trial was voluntary, but determines that question for itself from the evidence, the Justices unanimously declared that the Constitution proscribes lawless means irrespective of the end, and rejected the argument that the thumbscrew, the wheel, solitary confinement, protracted questioning, and other ingenious means of entrapment are necessary to uphold our laws.[883] Procuring a conviction for a capital crime by use of a confession extracted by protracted interrogation conducted in a similar manner was, on the authority of Chambers _v._ Florida, condemned in White _v._ Texas;[884] and in Lisenba _v._ California,[885] a case rendered inconclusive by conflicting testimony, the Court remarked, by way of dictum, that "the concept of due process would void a trial in which, by threats or promises in the presence of court and jury, a defendant was induced to testify against himself," or in which a confession is used which is "procured * * * by fraud, collusion, trickery and subornation or perjury." In conformity with these rulings, the Court, in Ward _v._ Texas,[886] set aside a conviction based upon a confession obtained, by methods of coercion and duress, from a defendant who had been arrested illegally, without warrant, by the sheriff of another county, and removed to a county more than a hundred miles away, and who for three days, while being driven from county to county, was questioned continuously by various officers and falsely informed by them of threats of mob violence. Similarly, in Ashcraft _v._ Tennessee,[887] the use in a State court of a confession obtained near the end of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers was held to be violative of constitutional right by reason of the inherently coercive character of such interrogation. Justice Jackson, joined by Justices Frankfurter and Roberts, dissented on the ground that the accused not only denied that the protracted questioning "had the effect of forcing an involuntary confession from him" but that he had ever confessed at all, a contention which reputable witnesses contradicted. Referring to Justice Holmes's warning against "the ever increasing scope given to the Fourteenth Amendment in cutting down * * * the constitutional rights of the States."[888] Justice Jackson protested that "interrogation _per se_ is not, * * *, an outlaw"; and that inasmuch as all questioning is "'inherently coercive' * * *, the ultimate question * * * [must be] whether the confessor was in possession of his own will and self-control at the time of [his] confession."[889] This dissent was not without effect. In June 1944, in Lyons _v._ Oklahoma,[890] the Court finally handed down a ruling calculated definitely to arrest the suspicion that had been developing that the use of any confession made after arrest would render a trial constitutionally defective. Here, six Justices refused to overturn a holding of the Oklahoma Criminal Court of Appeals which labelled as voluntary and usable a second confession obtained by other than coercive means within twelve hours after the defendant had made a confession admittedly under duress. The vice of coerced confessions, these Justices asserted, was that they offended "basic standards of justice, not because the victim had a legal grievance against the police, but because declarations procured by torture are not premises from which a civilized forum will infer guilt."[891] In Malinski _v._ New York,[892] however, although in the opinion of four Justices there was conflicting evidence as to the involuntary character of the confessions used, the Court nevertheless overturned a conviction sustained by New York tribunals.[893] Without finding it necessary to determine whether succeeding oral and written confessions were the product of the coercion "admittedly" applied in extracting an initial oral confession,[894] the Court held that, even though other evidence might have sufficed to convict the accused and notwithstanding the fact that the initial oral confession was never put in evidence, the repeated indirect reference to its content at the trial plus the failure to warn the jury not to consider it as evidence[895] invalidated the proceeding giving rise to the verdict.[896] Of the remaining cases involving the issue of self-incrimination, Adamson _v._ California[897] is especially significant because it represents the high water mark of dissent in support of the contention that the Bill of Rights, originally operative only against the Federal Government, became limitations on State action by virtue of their inclusion within the due process clause of the Fourteenth Amendment. Here, the Court, speaking through Justice Reed, declared that the California law which provides that if an accused elects to take the witness stand and testify, he must then be prepared to undergo impeachment of his testimony, through disclosure of his previous convictions, and which also permits him to avoid such disclosure by remaining silent, subject to comment on his failure to testify by the Court and prosecuting counsel, does not involve such a denial of due process as to invalidate a conviction in a State court. Inasmuch as California law "does not involve any presumption, rebuttable or irrebuttable, either of guilt or of the truth of any fact," and does not alter the burden of proof, which rests upon the State, nor the presumption of innocence in favor of the accused, it does not prevent the accused from enjoying a fair trial, which is all that the due process clause of the Fourteenth Amendment guarantees. Relying upon Twining _v._ New Jersey[898] and Palko _v._ Connecticut,[899] the Court reiterated that the "due process clause of the Fourteenth Amendment, however, does not draw all the rights of the federal Bill of Rights under its protection."[900] In a concurring opinion concerning the scope of the protection afforded by this clause of the Fourteenth Amendment, Justice Frankfurter contended that further argument thereon is foreclosed by Twining _v._ New Jersey, a precedent, on which he commented as follows: "Decisions of this Court do not have equal intrinsic authority. The _Twining_ Case shows the judicial process at its best--comprehensive briefs and powerful arguments on both sides, followed by long deliberation, resulting in an opinion by Mr. Justice Moody which at once gained and has ever since retained recognition as one of the outstanding opinions in the history of the Court. After enjoying unquestioned prestige for forty years, the _Twining_ Case should not now be diluted, even unwittingly, either in its judicial philosophy or in its particulars. As the surest way of keeping the _Twining_ Case intact, I would affirm this case on its authority." In dismissing as historically untenable the position adopted by Justice Black, Justice Frankfurter further declared that: "The notion that the Fourteenth Amendment was a covert way of imposing upon the States all the rules which it seemed important to Eighteenth Century statesmen to write into the Federal Amendments, was rejected by judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution. Arguments that may now be adduced to prove that the first eight Amendments were concealed within the historic phrasing of the Fourteenth Amendment were not unknown at the time of its adoption. A surer estimate of their bearing was possible for judges at the time than distorting distance is likely to vouchsafe. Any evidence of design or purpose not contemporaneously known could hardly have influenced those who ratified the Amendment. Remarks of a particular proponent of the Amendment, no matter how influential, are not to be deemed part of the Amendment. What was submitted for ratification was his proposal, not his speech. * * * The Due Process Clause of the Fourteenth Amendment has an independent potency, precisely as does the Due Process Clause of the Fifth Amendment in relation to the Federal Government. It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth. The Fifth Amendment specifically prohibits prosecution of an 'infamous crime' except upon indictment; it forbids double jeopardy; it bars compelling a person to be a witness against himself in any criminal case; it precludes deprivation of 'life, liberty, or property, without due process of law * * *' Are Madison and his contemporaries in the framing of the Bill of Rights to be charged with writing into it a meaningless clause? To consider 'due process of law' as merely a shorthand statement of other specific clauses in the same amendment is to attribute to the authors and proponents of this Amendment ignorance of, or indifference to, a historic conception which was one of the great instruments in the arsenal of constitutional freedom which the Bill of Rights was to protect and strengthen." Warning that "a construction which * * * makes of" the due process clause of the Fourteenth Amendment "a summary of specific provisions of the Bill of Rights would, * * *, tear up by the roots much of the fabric of the law in the several States," Justice Frankfurter, in conclusion, offers his own appraisal of this clause. To him, the due process clause "expresses a demand for civilized standards of law, [and] it is thus not a stagnant formulation of what has been achieved in the past but a standard for judgment in the progressive evolution of the institutions of a free society." Accordingly "judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and * * * [should] not be based upon the idiosyncrasies of a merely personal judgment. * * * An important safeguard against such merely individual judgment is an alert deference to the judgment of the State court under review."[901] In dissenting Justice Black, who was supported by Justice Douglas, attached to his opinion "an appendix which contains * * * [his] resume, * * *, of the Amendment's history." It is his judgment "that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no State could deprive its citizens of the privileges and protections of the Bill of Rights." A majority of the Court, he acknowledges resignedly, has declined, however, "to appraise the relevant historical evidence of the intended scope of the first section of the Amendment." In the instant case, the majority opinion, according to Justice Black, "reasserts a constitutional theory spelled out in Twining _v._ New Jersey, * * * that this Court is endowed by the Constitution with boundless power under 'natural law' periodically to expand and contract constitutional standards to conform to the Court's conception of what at a particular time constitutes 'civilized decency' and 'fundamental liberty and justice.' * * * [This] 'natural law' formula, [he further contends] * * * should be abandoned as an incongruous excrescence on our Constitution. * * * [The] formula [is] itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits legislative power." In conclusion, Justice Black expresses his fears as to "the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights * * *"[902] In all but one of the remaining cases, the Court sided with the accused and supported his contention that the confession on which his conviction was based had been procured by methods contrary to the requirements of due process. The conviction of murder of a Negro boy of fifteen was reversed by five Justices in Haley _v._ Ohio[903] on the ground that his confession, which contributed to the verdict, was involuntary, having been obtained by the police after several hours of questioning immediately after the boy was arrested, during which interval the youth was without friends or legal counsel. After having had his confession reduced to writing, the boy continued to be held _incommunicado_ for three days before being arraigned. "The age of petitioner, the [midnight] hours when he was grilled, the duration of his quizzing, the fact that he had no friend or counsel to advise him, the callous attitude of the police towards his rights combine to convince us," the Court declared, "that this was a confession wrung from a child by means which the law should not sanction."[904] The application of duress being indisputed, a unanimous Court, in Lee _v._ Mississippi,[905] citing as authority all the preceding cases beginning with Brown _v._ Mississippi, held that "a conviction resulting from such use of a coerced confession, however, is no less void because the accused testified at some point in the proceeding that he had never in fact confessed, voluntarily or involuntarily. * * *, inconsistent testimony as to the confession * * * cannot preclude the accused from raising * * * the issue * * * [that] the Fourteenth Amendment * * * [voids a] conviction grounded * * * upon a confession which is the product of other than reasoned and voluntary choice." In Taylor _v._ Alabama,[906] however, a majority of the Justices sustained the denial by a State appellate court, in which a conviction had been affirmed, of leave to file in a trial court a petition for a writ of error _coram nobis_ grounded upon the contention that confessions and admissions introduced into evidence at the trial had been obtained by coercion.[907] Five Justices declared that such denial was not such arbitrary action as in itself to amount to a deprivation of due process of law where the circumstances tended to show that the petitioner's allegations of mistreatment, none of which were submitted during the trial or the appeal,[908] were highly improbable.[909] Finally, in three decisions rendered on June 27, 1949, the Court reversed three convictions of murder on the ground that they had been founded entirely upon coerced confessions. The defendant in the first case, Watts _v._ Indiana,[910] was held without arraignment, without the aid of counsel or friends, and without advice as to his constitutional rights from Wednesday until the following Friday, when he confessed. During this interval, he was held much of the time in solitary confinement in a cell with no place to sit or sleep except the floor, and was subjected to interrogation daily, Sunday excepted, by relays of police officers for periods ranging in duration from three to nine and one-half hours. His incarceration without a prompt preliminary hearing also was a violation of Indiana law. Similarly in conflict with State law was the arrest without warrant and detention without arraignment for five days of the accused in Turner _v._ Pennsylvania,[911] the second case. During this period, Turner was not permitted to see friends, relatives, or counsel, was never informed of his right to remain silent, and was interrogated daily, though for briefer intervals than in the preceding case. At his trial, the prosecuting attorney "admitted that a hearing was withheld until interrogation had produced a confession." In the third and last case of this group, Harris _v._ South Carolina,[912] the defendant, an illiterate Negro, was apprehended in Tennessee on a Friday on a warrant alleging no more than a theft of a pistol, and taken to South Carolina on a Sunday. Without being informed of the contents of the warrant or of the charge of murder on which he was being held, without arraignment or advice as to his rights and without access to family or counsel, the defendant was questioned daily by officers for periods as long as 12 hours. In addition, he was warned that his mother also might be arrested for handling stolen property. In each of these cases there was dissent, and in none was the majority able to record its views in a single opinion. Justice Murphy and Justice Rutledge joined Justice Frankfurter, who filed a separate opinion in all three cases, in declaring that "a confession by which life becomes forfeit must be the expression of free choice. * * * When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. * * * if * * * [his confession] is the product of sustained pressure by the police it does not issue from a free choice."[913] On the authority of Chambers _v._ Florida[914] and Ashcraft _v._ Tennessee,[915] Justice Black supported the judgments reached in all three cases; but Justice Douglas, in concurring, advocated the disposition of these cases in conformity with a broader rule; namely that, "any confession obtained during * * * [a] period of * * * unlawful detention"; that is during a period of custody between arrest and arraignment, should be outlawed.[916] Justice Jackson, who wrote an opinion applicable to all three cases, concurred in the result in Watts _v._ Indiana, presumably on the basis of that part of Justice Frankfurter's opinion therein which was founded "on the State's admissions as to the treatment of Watts."[917] Emphasizing the merit of deferring to the findings of trial court and jury on the issue of the "voluntariness" of confessions on the ground that they have "the great advantage of hearing and seeing the confessor and also the officers whose conduct and bearing toward him is in question," Justice Jackson dissented in Turner _v._ Pennsylvania[918] and Harris _v._ South Carolina.[919] "If the right of interrogation be admitted," he declared, "then * * * we must leave it to trial judges and juries and State appellate courts to decide individual cases, unless they show some want of proper standards of decision."[920] Without explanatory opinion, Chief Justice Vinson and Justices Burton and Reed dissented in all three cases. Unreasonable Searches and Seizures In National Safe Deposit Co. _v._ Stead,[921] decided in 1914, the Court unequivocally declared that an unreasonable search and seizure committed by State and local officers presented no federal question, inasmuch as the Fourth Amendment does not apply to the States. Prior to that date, the Court has passed upon this question obliquely in only a few decisions,[922] in one of which it conceded for the sake of argument, but without so deciding, that the due process clause of the Fourteenth Amendment embraces in its generic terms a prohibition against unreasonable searches. In two of these earlier cases the Court sustained as consistent with due process the power of a State, in investigating the conduct of corporations doing business within its limits, to demand the production of corporate books and papers. The call for such papers was deemed not to have been rendered unreasonable because, at the time of the demand therefor, the corporation affected either temporarily or permanently kept such documents in another jurisdiction. Nor was the validity of the order to produce such materials viewed as having been impaired by the fact that it sought to elicit proof not only as to the liability of the corporation but also, evidence in its possession relevant to its defense. In its most recent opportunity to review the question whether the due process clause of the Fourteenth Amendment precludes admission in a State court of relevant evidence obtained by an unreasonable search and seizure,[923] the Court apparently ruled in the negative; but Justice Frankfurter, speaking for the majority, did not limit himself to a repetition of the conclusions stated by him in Adamson _v._ California;[924] namely, that the due process clause of the Fourteenth Amendment did not incorporate the first eight Amendments of the Constitution, and, conformably to Palko _v._ Connecticut,[925] exacts no more from a State than is "implicit in 'the concept of ordered liberty.'" He also proclaimed that: "The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the due process clause."[926] Such language appears to effect the very absorption into the Fourteenth Amendment which Justice Frankfurter rejects in the Adamson case; but he concluded by adding that as long as "a State [does not] affirmatively * * * sanction * * * [arbitrary] police incursion into privacy"; that is, as long as its police are deterred from making searches without authority of law by virtue of such internal discipline as an alert public opinion may induce and by reason of the statutory or common law remedies which the victims of such illegal searches may invoke, a State, without running counter to the due process clause, may employ at a trial incriminating evidence obtained by unlawful search and seizure. The fact that most of the English-speaking world, including 30 States and the British Commonwealth of Nations, does not regard the exclusion of evidence thus obtained, as vital to the protection of the right of privacy is interpreted by the Justice as lending abundant support to the merit of his position.[927] Without departing from his previously adopted position which he restated in his dissenting opinion in Adamson _v._ California;[928] namely, that the due process clause of the Fourteenth Amendment embraces the Fourth Amendment's prohibition of unreasonable searches and seizures, Justice Black concurred in the result on the ground that the exclusionary rule, whereby evidence procured in an illegal search and seizure is not admissible in a federal court, is "not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate."[929] Justices Douglas, Murphy, and Rutledge, in separate dissenting opinions, all declared that the Fourth Amendment was applicable to the States and that "evidence obtained in violation of it must be excluded in State prosecutions as well as in federal prosecutions, * * *."[930] Attacking Justice Frankfurter's method of approach, Justice Murphy declared that the Court should not "decide due process questions by simply taking a poll of the rules in various jurisdictions, * * *" and agreed with Justice Rutledge that unless illegally obtained evidence is excluded, no effective sanction "exists to deter violations of the search and seizure clause." In two recent cases, both argued the same day, a nearly unanimous Court reached opposite results.[931] In the first the outcome of the Wolf case was repeated. The Court, speaking by Justice Frankfurter, refused to enjoin the use, in State criminal proceedings against them in New Jersey of evidences claimed to have been obtained by unlawful search by State police. Said Justice Frankfurter, "If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law--with its far flung and undefined range--would invite a flanking movement against the system of State courts by resort to the federal forum * * *"[932] The facts in the second case were as follows: state officers, on the basis of "some information" that petitioner was selling narcotics, entered his home and forced their way into his wife's bedroom. When asked about two capsules lying on a bedroom table, petitioner put them into his mouth and swallowed them. He was then taken to a hospital, where an emetic was forced into his stomach with the result that he vomited them up. Later they were offered in evidence against him. Again Justice Frankfurter spoke for the Court, while reiterating his preachments regarding the tolerance claimable by the States under the Fourteenth Amendment[933] he held that methods offensive to human dignity were ruled out by the due process clause.[934] Justices Black and Douglas concurred in opinions in which they seized the opportunity to reiterate once more their position in Adamson _v._ California.[935] Conviction Based on Perjured Testimony When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, the constitutional requirement of due process is not satisfied. That requirement "cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance * * * is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation."[936] This principle, as originally announced, was no more than a dictum uttered by the Court in disposing of Tom Mooney's application for a writ of _habeas corpus_, filed almost eighteen years after his conviction, and founded upon the contention that the verdict of his guilt was made possible solely by perjured testimony knowingly employed by the prosecutor who "deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him."[937] On the authority of the preceding case, and without qualification, the Court subsequently applied this principle in Hysler _v._ Florida,[938] Pyle _v._ Kansas[939] and White _v._ Ragen.[940] In the first case, the Supreme Court concurred in the judgment of the Florida appellate court denying a petition for leave to apply to a trial court for a writ of _coram nobis_. Supporting the petition filed by Hysler, the accused, were affidavits signed by one of two codefendants on the eve of his execution for participation in the same crime and stating that the two codefendants had testified falsely against Hysler because they had been "'coerced, intimidated, beaten, threatened with violence and otherwise abused and mistreated' by the police and were 'promised immunity from the electric chair' by the district attorney." Having made "an independent examination of the affidavits upon which * * * [Hysler's] claim was based," a majority of the Justices concluded that the Florida appellate court's finding that Hysler's proof was insubstantial and did not make out a _prima facie_ case was justified. "That in the course of * * * years witnesses die or disappear, that memories fade, that a sense of responsibility may become attenuated, that [recantation] * * * on the eve of execution * * * [is] not unfamiliar as a means of relieving others or as an irrational hope for self * * * are relevant" to the determination by the Florida court that "such a belated disclosure" did not spring "from the impulse for truth-telling" and was "the product of self-delusion * * * [and] artifice prompted by the instinct of self-preservation."[941] Relying largely on the failure of the State to answer allegations in a prisoner's application for a write of _habeas corpus_, which application recited that persons named in supporting affidavits and documents were coerced to testify falsely, and that testimony of certain other persons material to the prisoner's defense was suppressed under threat and coercion by the State, the Court, in Pyle _v._ Kansas[942] reversed the Kansas court's refusal to issue the writ. Inasmuch as the record of the prisoner's conviction did "not controvert the charges that perjured evidence was used, and that favorable evidence was suppressed with the knowledge" of the authorities, the case was remanded in order that the prisoner might enjoy that to which he was entitled; namely, a determination of the verity of his allegations. Similarly, in White _v._ Ragen,[943] the Court declared that since a prisoner's petition to a State court for release on _habeas corpus_ had been dismissed without requiring the State to answer allegations supporting the petition; namely, that the conviction was obtained by the use of false testimony procured by bribery of two witnesses by the prosecutor, must be assumed to be true. Accordingly, the petitioner's contentions were deemed sufficient to make out a _prima facie_ case of violation of constitutional rights and adequate to entitle him to invoke corrective process in a State court. Confrontation; Presence of the Accused; Public Trial On the issue whether the privileges of presence, confrontation and cross-examination face to face, assured to a defendant in a federal trial by the Sixth Amendment, are also guaranteed in State criminal proceedings, the Court thus far has been unable to formulate an enduring and unequivocal answer. At times it has intimated, as in the following utterance, that the enjoyment of all these privileges is essential to due process. "The personal presence of the accused, from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be assumed to be, vital to the proper conduct of his defence, and cannot be dispensed with."[944] Notwithstanding this early assumption, the Supreme Court, fourteen years later, sustained a Kentucky court which approved the questioning, in the absence of the accused and his counsel, of a juror whose discharge before he was sworn had been demanded.[945] Inasmuch as no injury to substantial rights of the defendant was deemed to have been inflicted by his occasional absence during a trial, no denial of due process was declared to have resulted from the acceptance by the State court of the defendant's waiver of his right to be present. In harmony with the latter case is Felts _v._ Murphy,[946] which contains additional evidence of an increasing inclination on the part of the Court to treat as not fundamental the rights of presence, confrontation, and cross-examination face to face. The defendant in Felts _v._ Murphy proved to be so deaf that he was unable to hear any of the testimony of witnesses, and had never had the evidence repeated to him. While regretting that the trial court has not had the testimony read or repeated to the accused, the Supreme Court held that a deaf person is not deprived of due process of law because he had not heard a word of the evidence. It also did not overlook the fact the defendant "made no objection, asked for nothing, and permitted his counsel to take his own course." That the presence of the accused may be dispensed with at various stages of criminal proceedings was further conceded by the Court in Frank _v._ Mangum,[947] wherein it held that the presence of the defendant when the verdict is rendered is not essential, and, accordingly, that a rule of practice allowing the accused to waive it and which bound him by that waiver did not effect any unconstitutional deprivation. Enumerating many departures from common law procedure respecting jury trials, including provisions waiving the presence of an accused during portions of a trial, the Court emphasized that none of these changes had been construed as conflicting with the Fourteenth Amendment. More recently, the Court, sustained, by only a five-to-four vote, however, a conviction for murder where the trial court rejected the defendant's request that he be present at a view of the scene of the murder to which the jury had been taken.[948] Acknowledging that it had never squarely held, though it now assumed, that "the privilege to confront one's accusers and cross-examine them face to face" in State court prosecutions "is reinforced by the Fourteenth Amendment," the majority devised the following standard for disposing of similar cases in the future. "In a prosecution for a felony," five Justices declared, "the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. * * * The Fourteenth Amendment does not assume to a defendant the privilege to be present [when] * * * presence would be useless, or the benefit but a shadow. * * * The presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Employing this standard of appraisal, the majority therefore concluded that no harm or damage had been done to the accused by reason of his failure to be present when the jury viewed the site of the murder.[949] To what extent, consistently with due process, States may authorize the conduct, after conviction and sentence, of nonadversary proceedings from which the accused has been excluded and denied the privilege of confrontation and cross-examination, has been examined by the Court in two recent cases. In Williams _v._ New York,[950] the Supreme Court rejected the contention that the due process clause requires that a person convicted of murder be permitted to cross-examine probation officers as to his prior criminal record when the trial judge, in the exercise of discretion vested in him by law, considers such information, obtained outside the courtroom, in determining whether to abide by a jury's recommendation of life imprisonment or to impose a death sentence. Emphasizing the distinction between evidentiary rules applicable to the conduct of criminal trials, which are confined to the narrow issue of guilt, and sentencing procedures which pertain to the determination of the type and extent of punishment after the issue of guilt has been decided, the Court disposed of the petitioner's appeal by declaring that, "modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial."[951] By a similar process of reasoning, in Solesbee _v._ Balkcom,[952] the Court sustained a Georgia statutory procedure granting the governor discretionary authority, with the aid of physicians appointed by himself, to determine, without opportunity for an adversary hearing or for judicial review, whether a condemned convict has become insane and, if so, whether he should be committed to an insane asylum. Likening the function thus vested in the governor to the power of executive clemency, the Supreme Court reiterated that "trial procedure safeguards are not applicable to the process of sentencing," and concluded with the observation that the Georgia procedure is amply supported by "the universal common-law principle that upon a suggestion of insanity after sentence, the tribunal charged with responsibility must be vested with broad discretion in deciding whether evidence shall be heard. * * * The heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence."[953] When employed in the conduct of the trial, however, summary procedures such as those examined in the preceding two decisions invariably elicit judicial condemnation. Thus, when a Michigan judge proceeding as a one-man grand jury concluded that a witness had given false and evasive testimony, not on the basis of anything inherent in the testimony itself, but at least in part upon its inconsistency with other testimony given by a preceding witness, and immediately thereupon suspended his investigation, and committed the witness to jail for contempt, such summary commitment, in the absence of a showing that it was necessary to prevent demoralization of the judge's authority, was held to constitute a denial of due process. The guaranty of that clause forbids the sentencing of an accused person to prison without a public trial; that is, without a day in court, reasonable notice of the charges, and an opportunity to be heard in one's defense by cross-examining other witnesses, or by summoning witnesses to refute the charges against him.[954] On the other hand, when the alleged contempt is committed, not within the confines of a secret grand jury proceeding, but in open court, is readily observable by the presiding judge, and constitutes an open and immediate threat to orderly judicial procedure and to the court's authority, the offended tribunal is constitutionally empowered summarily to punish without notice, testimony, or hearing. Thus in Fisher _v._ Pace,[955] albeit with the concurrence of only five Justices, the Court sustained a Texas court's conviction for contempt, with progressive increase of penalty from a $25 to $50 to $100 fine plus three days in jail, of a trial attorney who, despite judicial admonition, persisted in conveying to the jury, in a workmen's compensation case, information not for their consideration. Conceding that "there must be adequate facts to support an order for contempt," the majority declared that the Texas appellate court's finding in the affirmative, after evaluation of the facts, should not be overturned inasmuch as the Supreme Court, in examining the transcript of the record, could not derive therefrom an adequate picture of the courtroom scene nor discern therein "such elements of misbehavior as expression, manner of speaking, bearing, and attitude of * * * [the attorney]." The fact that the bench was guilty of "mildly provocative language" was deemed insufficient to excuse the conduct of the attorney.[956] Trial by Impartial Tribunal Inasmuch as due process implies a tribunal both impartial and mentally competent to afford a hearing, it follows that the subjection of a defendant's liberty or property to the decision of a court, the judge of which has a direct, personal, substantial pecuniary interest in rendering a verdict against him, is violative of the Fourteenth Amendment.[957] Compensating an inferior judge for his services only when he convicts a defendant may have been a practice of long-standing, but such a system of remuneration, the Court declared, never became "so embedded by custom in the general practice either at common law or in this country that it can be regarded as due process of law. * * *"[958] However, a conviction before a mayor's court does not become constitutionally defective by reason of the fact that the fixed salary of the mayor is paid out of the fund to which the fines imposed by him contribute.[959] Obviously, the attribute of impartiality is lacking whenever the judge and jury are dominated by a mob. "If the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law. * * *"[960] But "if * * * the whole proceeding is a mask--* * * [if the] counsel, jury and judge * * * [are] swept to the fatal end by an irresistible wave of public passion, and * * * [if] the State Courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent" intervention by the Supreme Court to secure the constitutional rights of the defendant.[961] Insofar as a criminal trial proceeds with a jury, it is part of the American tradition to contemplate not only an impartial jury but one drawn from a cross-section of the community. This has been construed as requiring that prospective jurors be selected by court officials without systematic and intentional exclusion of any group, even though it is not necessary that every jury contain representatives of all the economic, social, religious, racial, political, and geographical groups of the community.[962] Other Attributes of a Fair Trial "Due process of law," the Supreme Court has observed, "requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. * * * What is fair in one set of circumstances may be an act of tyranny in others."[963] Conversely, "as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it * * * [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."[964] And on another occasion the Court remarked that "the due process clause," as applied in criminal trials "requires that action by a State through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, [and] which not infrequently are designated as 'the law of the land.'"[965] Basic to the very idea of free government and among the immutable principles of justice which no State of the Union may disregard is the necessity of due "notice of the charge and an adequate opportunity to be heard in defense of it."[966] Consequently, when a State appellate court affirms a conviction on the ground that the information charged, and the evidence showed a violation of Sec. 1 of a penal law of the State, notwithstanding that the language of the information and the construction placed upon it at the trial clearly show that an offense under Sec. 2 of such law was charged, that the trial judge's instructions to the jury were based on Sec. 2, and that on the whole case it was clear that the trial and conviction in the lower court were for the violation of Sec. 2, not Sec. 1, such appellate court in effect is convicting the accused of a charge on which he was never tried, which is as much a violation of due process as a conviction upon a charge that was never made.[967] On the other hand, a prisoner who, after having been indicted on a charge of receiving stolen goods, abides by the prosecutor's suggestion and pleads guilty to the lesser offense of attempted second degree grand larceny, cannot later contend that a judgment of guilty of the latter offense was lacking in due process in that it amounted to a conviction of a crime for which he had never been indicted. In view of the "close kinship between the offense of larceny and that of receiving stolen property * * *, when related to the same stolen goods, the two crimes may fairly be said 'to be connected with the same transaction.'" It would be therefore, the Court concluded, "an exaltation of technical precision to an unwarranted degree to say that the indictment here did not inform the petitioner that he was charged with the substantial elements of the crime of larceny." Under these circumstances he must be deemed to have been given "reasonable notice and information of the specific charge against him and a fair hearing in open court."[968] Excessive Bail, Cruel and Unusual Punishment, Sentence The commitment to prison of a person convicted of crime, without giving him an opportunity pending an appeal, to furnish bail, does not violate the due process clause of the Fourteenth Amendment.[969] Likewise, a State, notwithstanding the limitations of that clause, retains a wide discretion in prescribing penalties for violation of its laws. Accordingly, a sentence of fourteen years' imprisonment for the crime of perjury has not been viewed as excessive nor as effecting any unconstitutional deprivation of the defendant's liberty;[970] nor has the imposition of successively heavier penalties upon "repeaters" been considered as partaking of a "cruel and unusual punishment."[971] In an older decision, Ex parte Kemmler,[972] rendered in 1890, the Supreme Court rejected the suggestion that the substance of the Eighth Amendment had been incorporated into the due process clause of the Fourteenth Amendment, but did intimate that the latter clause would invalidate punishments which would involve "torture or a lingering death," such "as burning at the stake, crucifixion, breaking on the wheel, and the like." Holding that the infliction of the death penalty by electrocution was comparable to none of the latter, the Court refused to interfere with the judgment of the State legislature that such a method of executing the judgment of a court was humane. More recently, in Louisiana ex rel. Francis _v._ Resweber,[973] five members of the Court reached a similar conclusion as to the restraining effect of the due process clause of the Fourteenth Amendment when, assuming, "but without so deciding" that violations of the Eighth Amendment as to cruel and unusual punishments would also be violative of that clause, they upheld a subsequent proceeding to execute a sentence of death by electrocution after an accidental failure of equipment had rendered an initial attempt unsuccessful.[974] Double Jeopardy In none of the pertinent cases considered prior to 1937 was the Supreme Court able to discern the existence of any factual situation amounting to double jeopardy, and accordingly it was never confronted with the necessity of determining whether the guarantee that no person be put twice in jeopardy of life or limb, expressed in the Fifth Amendment as a limitation against the Federal Government, had been absorbed in the due process clause of the Fourteenth Amendment. Thus, in Dreyer _v._ Illinois,[975] after declaring that a retrial after discharge of a hung jury did not subject a defendant to double jeopardy, the Court concluded as follows: If "* * * what was said in United States _v._ Perez [(9 Wheat. 579 (1824)) embracing a similar set of facts], * * * is adverse to the contention of the accused that he was put twice in jeopardy," then "we need not now express an opinion" as to whether the Fourteenth Amendment embraces the guarantee against double jeopardy. Similarly, in Murphy _v._ Massachusetts[976] and Shoener _v._ Pennsylvania[977] the Court held that where the original conviction of the prisoner was, on appeal, construed by the State tribunal to be legally defective and therefore a nullity, a subsequent trial, conviction, and sentence of the accused deprived him of no constitutional right, notwithstanding the fact that under the invalidated original conviction, the defendant had spent time in prison. In both instances the Court found it unnecessary to discuss "any question of a federal nature." With like dispatch, "the propriety of inflicting severer punishment upon old offenders" was sustained on the ground that they were not being "punished * * * [a] second time for the earlier offense, but [that] the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted."[978] In Palko _v._ Connecticut,[979] however, the Court appeared to have been presented with issues, the disposition of which would preclude further avoidance of a decision as to whether the double jeopardy provision of the Fifth Amendment had become operable as a restraint upon the States by reason of its incorporation into the due process clause of the Fourteenth Amendment. By the terms of the Connecticut statute at issue, the State was privileged to appeal any question of law arising out of a criminal prosecution, and did appeal a conviction of second degree murder and sentence to life imprisonment of one Palko, who had been charged with first degree murder. Obtaining a reversal, the State prosecuted Palko a second time and won a conviction of first degree murder and sentence to death. In response to the petitioner's contentions that a retrial under one indictment would subject him to double jeopardy in violation of the Fifth Amendment, if the prosecution were one on behalf of the United States and "that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also,"[980] eight Justices[981] replied that the State statute did not subject him to double jeopardy "so acute and shocking that our polity will not endure it"; nor did "it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political' institutions.'" Consistently with past behavior, the Court thus refused to assert that the defendant had been subjected to treatment of the type prohibited by the double jeopardy clause of the Fifth Amendment; nor did it, on the other hand, repudiate the possibility of situations in which the Fourteenth Amendment would prevent the States from inflicting double jeopardy. Whether a State is prohibited by the latter amendment, after a trial free from error, from trying the accused over again or from wearing out the accused "by a multitude of cases with accumulated trials" were questions which the Court reserved for future disposition. Subsequently, in Louisiana ex rel. Francis _v._ Resweber,[982] a majority of the Court assumed, "but without so deciding, that violation of the principles of the Fifth Amendment * * *, as to double jeopardy * * *, would be violative of the due process clause of the Fourteenth Amendment," and then concluded that the Palko case was decisive, there being "no difference from a constitutional point of view between a new trial for error of law at the instance of the State that results in a death sentence instead of imprisonment for life and an execution" by electrocution that follows after "an accidental failure in equipment had rendered a previous attempt at execution ineffectual." Rights of Prisoners Access to the Courts.--A State prison regulation requiring that all legal papers sought to be filed in court by inmates must first be submitted to the institution for approval and which was applied so as to obstruct efforts of a prisoner to petition a federal court for a writ of _habeas corpus_ is void. Whether a petition for such writ is properly drawn and what allegations it must contain are questions which a federal court alone determines.[983] Equally subject to condemnation is the practice of the warden of a State penitentiary who denied prisoners access to the courts unless they procured counsel to represent them.[984] Appeals; Corrective Process.--Rehearing, new trials, and appeals are not considered to be essential to due process; and a State is forbidden by no provision of the Constitution from vesting in one tribunal the final determination of legal questions. Consequently, a review by an appellate court of a final judgment in a criminal case, irrespective of the gravity of the offense, is wholly within the discretion of the State to allow or not to allow;[985] and, if granted, may be accorded by the State upon such terms as in its wisdom may be deemed proper.[986] "Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional; * * * and so long as the rights under the * * * Constitution may be pursued, it is for a State and not for * * * [the Supreme] Court [of the United States] to define the mode by which they may be vindicated. * * * A State may decide whether to have direct appeals * * *, and if so under what circumstances * * * may provide that the protection of [constitutional] rights * * * be sought through the writ of _habeas corpus_ or _coram nobis_, [or] * * * may afford remedy by a simple motion brought either in the Court of original conviction or at the place of detention."[987] However, if the tribunal of first instance fails to accord due process such as occurs when the Court in which a conviction is obtained is dominated by a mob, the State must supply corrective process. Moreover, when such process is made available, the corrective proceedings in the reviewing or appellate tribunal being no less a part of the process of law under which a defendant is held in custody, become subject to scrutiny on the occasion of any determination of an alleged unconstitutional deprivation of life or liberty.[988] Such examination may lead unavoidably to substantial federal intervention in State judicial proceedings, and sensitive, no doubt, to the propriety thereof,[989] the Supreme Court, almost until Brown _v._ Mississippi,[990] decided in 1936, manifested an unusual reluctance to indulge in an adverse appraisal of the adequacy of a State's corrective process. Prior to the latter date, the Court was content to assume as it did in Frank _v._ Mangum,[991] decided in 1915, that inasmuch as the proceedings in the State appellate court formally appeared to be sufficient to correct errors committed by a trial court alleged to have been intimidated by a mob, the conclusion by that appellate court that the trial court's sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law. Apparently in observance of a principle of comity, whereunder a State appellate court's holding, though acknowledged as not binding, was deemed entitled to utmost respect, the Court persisted in its refusal to make an independent examination of allegations of a denial of due process. Eight years later, in Moore _v._ Dempsey,[992] a case involving similar allegations of mob domination, the Court, on this occasion speaking through Justice Holmes who had dissented in the preceding decision, ordered the federal district court, in which the defendants had petitioned for a writ of _habeas corpus_ and which had sustained the State of Arkansas's demurrer thereto, to make an independent investigation of the facts, notwithstanding that the Arkansas appellate court had ruled that, in view of the legally sufficient evidence on which the verdict was based and the competent counsel defending the accused, the allegations of mob domination did not suffice to void the trial. Indubitably, Moore _v._ Dempsey marked the abandonment of the Supreme Court's deference, founded upon considerations of comity, to decisions of State appellate tribunals on issues of constitutionality and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair. However, the enduring character of this precedent was depreciated by the Court's insistence that Moore _v._ Dempsey was decided consistently[993] with Frank _v._ Mangum; and it was not until the later holding in Brown _v._ Mississippi in 1936 and the numerous decisions rendered conformably thereto in the decade following that all uncertainty was dispelled as to the Supreme Court's willingness to engage in its own independent examination of the constitutional adequacy of trial court proceedings. DUE PROCESS: MISCELLANEOUS Appeals In every case a point is reached where litigation must cease; and what that point is can best be determined by the State legislature. The power to render a final judgment must be lodged somewhere; and there is no provision in the Federal Constitution which forbids a State from granting to a tribunal, whether called a court or an administrative board, the final determination of a legal question. Neither in administrative nor judicial proceedings does the due process clause require that the participants be entitled as of right to rehearings, new trials, or appeals.[994] Federal Review of State Procedure The Fourteenth Amendment does not impair the authority of the States to determine finally, according to their settled usages and established modes of procedure, issues which do not involve any right secured by the Constitution, an act of Congress, or a treaty. As long as a local tribunal acts in consonance with the Constitution, laws and procedure of its own State and as long as said Constitution and laws are so interpreted as not to violate due process, it is only in exceptional circumstances that the Supreme Court would feel justified in intervening. Neither by intention nor by result has the Fourteenth Amendment transformed the Supreme Court into a court of general review to which questions of general justice or equitable consideration arising out of the taking of property may be brought for final determination.[995] Insofar as mere irregularities or errors in matters of practice under State procedure do not affect constitutional right,[996] they are matters solely for consideration by the appropriate State tribunal.[997] The Constitution does not guarantee that the decisions of State courts shall be free from error;[998] nor does the due process clause give the Supreme Court jurisdiction to review mere mistakes of law concerning nonfederal matters alleged to have been committed by a State court.[999] Accordingly, when statutes authorizing the form of the indictment used are not obviously violative of fundamental constitutional principles, any question as to the sufficiency of the indictment employed is for a State court to determine.[1000] Likewise, the failure of a State to establish a county appellate court as required by the State constitution cannot support any appeal founded upon a denial of due process.[1001] Moreover, if a State court errs in deciding what the common law is, without, however, denying any constitutional right, the litigant adversely affected is not deprived of any liberty or property without due process of law.[1002] Also, whenever a wrong judgment is rendered, property is taken when it should not have been; yet whatever the ground may be, if the mistake is not so gross as to be impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of constitutional rights.[1003] In conclusion, the decision of a State court upon a question of local law, however wrong, is not an infraction of the Fourteenth Amendment merely because it is wrong. It is not for the Supreme Court to determine whether there has been an erroneous construction of a State statute or the common law; nor does the Constitution impose any impediment to the correction or modification by a State court of erroneous or older constructions of local law embraced in previous decisions.[1004] Equal Protection of the Laws DEFINITIONS OF TERMS What Constitutes State Action The inhibition against denial of equal protection of the laws has exclusive reference to State action. It means that no agency of the State, legislative, executive or judicial,[1005] no instrumentality of the State, and no person, officer or agent exerting the power of the State shall deny equal protection to any person within the jurisdiction of the State. The clause prohibits "discriminating and partial legislation * * * in favor of particular persons as against others in like condition."[1006] But it also has reference to the way the law is administered. "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."[1007] This was said in a case where a Chinese subject had been convicted of operating a laundry in violation of a municipal ordinance which made it unlawful to engage in such business (except in a building constructed of brick or stone) without the consent of the board of supervisors. Permission had been withheld from petitioner and 200 other Chinese subjects but had been granted to 80 others to carry on the same business under similar conditions. This discrimination solely on the basis of nationality was held illegal. For an unlawful administration of a valid statute to constitute a violation of constitutional rights, purposeful discrimination must be shown. An erroneous performance of a statutory duty, although a violation of the statute, is not without more a denial of equal protection of the laws.[1008] This clause is also violated by the withholding of equal access to the courts,[1009] or by inequality of treatment in the courts.[1010] In Shelley _v._ Kraemer[1011] the use of judicial power to enforce private agreements of a discriminatory character was held unconstitutional. Holding that restrictive covenants prohibiting the sale of homes to Negroes could not be enforced in the courts, Chief Justice Vinson said: "These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing."[1012] The action of the curators of a state university in refusing admission to an applicant on account of race is regarded as State action.[1013] A State cannot avoid the impact of the clause by the delegation of responsibility to a private body. After a period of vacillation, the Supreme Court has determined that the action of a political party in excluding Negroes from membership is unlawful when such membership is an essential qualification for voting in a primary conducted pursuant to State law.[1014] "Persons" In the case in which it was first called upon to interpret this clause the Court expressed doubt whether "any action of a State not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision."[1015] That view was soon abandoned. In 1877 it took jurisdiction of a series of cases, popularly known as the Granger cases, in which railroad corporations sought protection under the due process and equal protection clauses.[1016] Although every case was decided against the corporations on its merits, there was no expression of any doubt that the corporations were entitled to invoke the protection of the amendment. Nine years later the issue was settled definitely by an announcement from the bench by Chief Justice Waite that the Court would not hear argument on the question whether the equal protection clause applies to corporations, adding: "We are all of opinion that it does."[1017] At the same term the Court gave the broadest possible meaning to the word "person"; it held that: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; * * *"[1018] The only qualification of the meaning of "person" is that introduced by subsequent decisions holding that a municipal corporation cannot invoke the amendment against its State.[1019] "Within Its Jurisdiction" It is persons "within its jurisdiction" that are entitled to equal protection from a State. Largely because article IV, section 2, has from the beginning entitled "Citizens of each State" to the "Privileges and Immunities of Citizens in the several States," the Court has never construed the phrase, "within its jurisdiction," in relation to natural persons.[1020] The cases interpretive of this expression consequently all concern corporations. In 1898, the Court laid down the rule that a foreign corporation not doing business in a State under conditions that subjected it to process issuing from the courts of the State at the instance of suitors was not "within the jurisdiction," and could not complain of the preference granted resident creditors in the distribution of the assets of an insolvent corporation.[1021] That principle was subsequently qualified, over the dissent of Justices Brandeis and Holmes, by a holding that a foreign corporation which sued in a court of a State in which it was not licensed to do business to recover possession of property wrongfully taken from it in another State was "within the jurisdiction" and could not be subjected to unequal burdens in the maintenance of the suit.[1022] The test of amenability to service of process within the State was ignored in a recent case dealing with discriminatory assessment of property belonging to a nonresident individual. In holding that a federal court had jurisdiction to entertain a suit for a declaratory judgment to invalidate the tax, the Supreme Court specifically mentioned the equal protection clause as the source of the federal right, but took no account of the plaintiff's status as a nonresident, beyond a passing reference to the existence of diversity of citizenship.[1023] When a State has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws, but not necessarily to identical treatment with domestic corporations.[1024] A foreign corporation licensed to do business within a State upon payment of an annual license tax is subject to the power of the State to change at any time the conditions of admission for the future. If it fails to pay an increased license tax as a prerequisite to doing business, it is not "within the jurisdiction" and unequal burdens may be laid upon it as compared with other foreign corporations.[1025] "Equal Protection of the Laws" Equal protection of the laws means the protection of equal laws.[1026] It forbids all invidious discrimination but does not require identical treatment for all persons without recognition of differences in relevant circumstances. It requires "that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses."[1027] The Amendment was not "designed to interfere with the power of the State, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity * * * Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions."[1028] The due process and equal protection clauses overlap but the spheres of protection they offer are not coterminous. The due process clause "tends to secure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty, and property, which the Congress or the legislature may not withhold. * * * The guaranty [of equal protection] was aimed at undue favor and individual or class privilege, on the other hand, and at hostile discrimination or the oppression of inequality, on the other."[1029] Legislative Classifications Although the equal protection clause requires laws of like application to all similarly situated, the legislature is allowed wide discretion in the selection of classes.[1030] Classification will not render a State police statute unconstitutional so long as it has a reasonable basis;[1031] its validity does not depend on scientific or marked differences in things or persons or in their relations. It suffices if it is practical.[1032] While a State legislature may not arbitrarily select certain individuals for the operation of its statutes, a selection is obnoxious to the equal protection clause only if it is clearly and actually arbitrary and not merely possibly so.[1033] A substantial difference, in point of harmful results, between two methods of operation, justifies a classification and the burden is on the attacking party to prove it unreasonable.[1034] There is a strong presumption that discriminations in State legislation are based on adequate grounds.[1035] Every state of facts sufficient to sustain a classification which can reasonably be conceived of as having existed when the law was adopted will be assumed.[1036] There is no doctrinaire requirement that legislation should be couched in all-embracing terms.[1037] A police statute may be confined to the occasion for its existence.[1038] The equal protection clause does not mean that all occupations that are called by the same name must be treated in the same way.[1039] The legislature is free to recognize degrees of harm; a law which hits the evil where it is most felt will not be overthrown because there are other instances to which it might have been applied.[1040] The State may do what it can to prevent what is deemed an evil and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rules laid down were made mathematically exact.[1041] Exceptions of specified classes will not render the law unconstitutional unless there is no fair reason for the law that would not equally require its extension to the excepted classes.[1042] Incidental individual inequality does not violate the Fourteenth Amendment.[1043] One who is not discriminated against cannot attack a statute because it does not go further; and if what it commands of one it commands of all others in the same class, that person cannot complain of matter which the statute does not cover.[1044] TAXATION At the outset, the Court did not regard the equal protection clause as having any bearing on taxation.[1045] Before long, however, it took jurisdiction of cases assailing specific tax laws under this provision.[1046] In 1890 it conceded cautiously that "clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, _might_ be obnoxious to the constitutional prohibition."[1047] In succeeding years the clause has been invoked but sparingly to invalidate State levies. In the field of property taxation, inequality has been condemned only in two classes of cases: (1) intentional discrimination in assessments; and (2) discrimination against foreign corporations. In addition, there are a handful of cases invalidating, because of inequality, State laws imposing income, gross receipts, sales and license taxes. Classifications for the Purpose of Taxation The power of the State to classify for purposes of taxation is "of wide range and flexibility."[1048] The Constitution does not prevent it "from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the State Legislature, * * *"[1049] A State may adjust its taxing system in such a way as to favor certain industries or forms of industry,[1050] and may tax different types of taxpayers differently, despite the fact that they compete.[1051] It does not follow that because "some degree of inequality from the nature of things must be permitted, gross inequality must also be allowed."[1052] Classification may not be arbitrary; it must be based on a real and substantial difference,[1053] but the difference need not be great or conspicuous;[1054] but there must be no discrimination in favor of one as against another of the same class.[1055] Also, discriminations of an unusual character are scrutinized with especial care.[1056] A gross sales tax graduated at increasing rates with the volume of sales,[1057] a heavier license tax on each unit in a chain of stores where the owner has stores located in more than one county,[1058] and a gross receipts tax levied on corporations operating taxicabs, but not on individuals,[1059] have been held to be repugnant to the equal protection clause. But it is not the function of the Court to consider the propriety or justness of the tax, to seek for the motives and criticize the public policy which prompted the adoption of the statute.[1060] If the evident intent and general operation of the tax legislation is to adjust the burden with a fair and reasonable degree of equality, the constitutional requirement is satisfied.[1061] One not within the class claimed to be discriminated against cannot raise the question of constitutionality of a statute on the ground that it denies equal protection of the law.[1062] If a tax applies to a class which may be separately taxed, those within the class may not complain because the class might have been more aptly defined, nor because others, not of the class, are taxed improperly.[1063] Foreign Corporations The equal protection clause does not require identical taxes upon all foreign and domestic corporations in every case.[1064] In 1886, a Pennsylvania corporation previously licensed to do business in New York challenged an increased annual license tax imposed by that State in retaliation for a like tax levied by Pennsylvania against New York corporations. This tax was held valid on the ground that the State, having power to exclude entirely, could change the conditions of admission for the future, and could demand the payment of a new or further tax, as a license fee.[1065] Later cases whittled down this rule considerably. The Court decided that "after its admission, the foreign corporation stands equal and is to be classified with domestic corporations of the same kind,"[1066] and that where it has acquired property of a fixed and permanent nature in a State, it cannot be subjected to a more onerous tax for the privilege of doing business than domestic corporations.[1067] A State statute taxing foreign corporations writing fire, marine, inland navigation and casualty insurance on net receipts, including receipts from casualty business was held invalid under the equal protection clause where foreign companies writing only casualty insurance were not subject to a similar tax.[1068] Recently, the doctrine of Fire Asso. of Philadelphia _v._ New York was revived to sustain an increased tax on gross premiums which was exacted as an annual license fee from foreign but not from domestic corporations.[1069] Even though the right of a foreign corporation to do business in a State rests on a license, yet the equal protection clause is held to insure it equality of treatment, at least so far as _ad valorem_ taxation is concerned.[1070] Income Taxes A State law which taxes the entire income, including that derived without the State, of domestic corporations which do business in the State, while exempting entirely the income received outside the State by domestic corporations which do no local business, is arbitrary and invalid.[1071] In taxing the income of a nonresident, there is no denial of equal protection in limiting the deduction of losses to those sustained within the State, although residents are permitted to deduct all losses, wherever incurred.[1072] A retroactive statute imposing a graduated tax at rates different from those in the general income tax law, on dividends received in a prior year which were deductible from gross income under the law in effect when they were received, is not obnoxious to the equal protection clause.[1073] Inheritance Taxes In inheritance taxation, there is no denial of equal protection in prescribing different treatment for lineal relations, collateral kindred and strangers of the blood, or in increasing the proportionate burden of the tax progressively as the amount of the benefit increases.[1074] A tax on life estates where the remainder passes to lineal heirs is valid despite the exemption of life estates where the remainder passes to collateral heirs;[1075] there is no arbitrary classification in taxing the transmission of property to a brother or sister, while exempting that to a son-in-law or a daughter-in-law.[1076] Vested and contingent remainders may be treated differently.[1077] The exemption of property bequeathed to charitable or educational institutions may be limited to those within the State.[1078] In computing the tax collectible from a nonresident decedent's property within the State, a State may apply the pertinent rates to the whole estate wherever located, and take that proportion thereof which the property within the State bears to the total; the fact that a greater tax may result than would be assessed on an equal amount of property if owned by a resident,[1079] does not invalidate the result. Motor Vehicle Taxes In demanding compensation for the use of highways, a State may exempt certain types of vehicles, according to the purpose for which they are used, from a mileage tax on carriers.[1080] A State maintenance tax act, which taxes vehicle property carriers for hire at greater rates than similar vehicles carrying property not for hire is reasonable, since the use of roads by one hauling not for hire generally is limited to transportation of his own property as an incident to his occupation and is substantially less than that of one engaged in business as a common carrier.[1081] A property tax on motor vehicles used in operating a stage line that makes constant and unusual use of the highways may be measured by gross receipts and be assessed at a higher rate than taxes on property not so employed.[1082] Common motor carriers of freight operating over regular routes between fixed termini may be taxed at higher rates than other carriers, common and private.[1083] A fee for the privilege of transporting motor vehicles on their own wheels over the highways of the State for purpose of sale, does not violate the equal protection clause as applied to cars moving in caravans.[1084] The exemption from a tax for a permit to bring cars into the State in caravans of cars moved for sale between zones in the State is not an unconstitutional discrimination where it appears that the traffic subject to the tax places a much more serious burden on the highways than that which is exempt.[1085] The exemption of small vehicles from graduated registration fees on carriers for hire,[1086] and of persons whose vehicles haul passengers and farm products between points not having railroad facilities or hauling farm and dairy products for a producer from a vehicle license tax on private motor carriers, has been upheld.[1087] Poll Taxes A poll tax statute exempting women, the aged and minors, does not make an arbitrary classification[1088]. Property Taxes The State's latitude of discretion is notably wide in the classification of property for purposes of taxation and the granting of partial or total exemption on the grounds of policy,[1089] whether the exemption results from the terms of the statute or the conduct of a State official under it.[1090] A provision for the forfeiture of land for nonpayment of taxes is not invalid because the conditions to which it applies exist only in a part of the State.[1091] Intentional and systematic undervaluation by State officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the full value of his property;[1092] but mere errors in judgment resulting in unequal overvaluation or undervaluation, not intentional or systematic, will not support a claim of discrimination.[1093] Differences in the basis of assessment are not invalid where the person or property affected might properly be placed in a separate class for purposes of taxation.[1094] An owner aggrieved by discrimination is entitled to have his assessment reduced to the common level.[1095] Equal protection is denied if a State does not itself remove the discrimination; it cannot impose upon the person against whom the discrimination is directed the burden of seeking an upward revision of the assessment of other members of the class.[1096] A corporation whose valuations were accepted by the assessing commission cannot complain that it was taxed disproportionately, as compared with others, if the commission did not act fraudulently.[1097] Special Assessment A special assessment is not discriminatory because apportioned on an _ad valorem_ basis, nor does its validity depend upon the receipt of some special benefit as distinguished from the general benefit to the community.[1098] Railroad property may not be burdened for local improvements upon a basis so wholly different from that used for ascertaining the contribution demanded of individual owners as necessarily to produce manifest inequality.[1099] A special highway assessment against railroads based on real property, rolling stock and other personal property is unjustly discriminatory when other assessments for the same improvement are based on real property alone.[1100] A law requiring the franchise of a railroad to be considered in valuing its property for apportionment of a special assessment, is not invalid where the franchises were not added as a separate personal property value to the assessment of the real property.[1101] In taxing railroads within a levee district on a mileage basis, it is not necessarily arbitrary to fix a lower rate per mile for those having less than 25 miles of main line within the district than for those having more.[1102] POLICE POWER Classification Justice Holmes once called the equal protection clause the "usual last refuge of constitutional arguments."[1103] When State action is attacked under the due process clause, the assailant usually charges also that he is denied the equal protection of the laws. Except where discrimination on the basis of race or nationality is shown, few police regulations have been found unconstitutional on this ground.[1104] The Court has condemned a statute which forbade stock insurance companies to act through agents who were their salaried employees, but permitted mutual companies to operate in this manner.[1105] A law which required private motor vehicle carriers to obtain certificates of convenience and necessity and to furnish security for the protection of the public was held invalid by reason of the exemption of carriers of fish, farm and dairy products.[1106] Discrimination among milk dealers without well advertised trade names, giving those who entered business before a specified date the benefit of a price differential denied to those who commenced operations thereafter, is arbitrary and unlawful.[1107] A statute providing for the sterilization of defectives in State institutions was sustained;[1108] but a similar act applicable to triple offenders was held void.[1109] Administrative Discretion A municipal ordinance which vests in supervisory authorities a naked and arbitrary power to grant or withhold consent to the operation of laundries in wooden buildings, without consideration of the circumstances of individual cases, constitutes a denial of equal protection of the law when consent is withheld from certain persons solely on the basis of nationality.[1110] But a city council may reserve to itself the power to make exceptions from a ban on the operation of a dairy within the city,[1111] or from building line restrictions.[1112] Written permission of the mayor or president of the city council may be required before any person shall move a building on a street.[1113] The Mayor may be empowered to determine whether an applicant has a good character and reputation and is a suitable person to receive a license for the sale of cigarettes.[1114] In a recent case[1115] the Court held that the unfettered discretion of officer river pilots to select their apprentices, which was almost invariably exercised in favor of their relatives and friends, was not a denial of equal protection to persons not selected despite the fact that such apprenticeship was requisite for appointment as a pilot. Alien Laws The Fourteenth Amendment prohibits purely arbitrary discrimination against aliens.[1116] Where alien race and allegiance bear a reasonable relation to a legitimate object of legislation, it may be made the basis of classification. Thus, legislation has been upheld under which aliens were forbidden to conduct pool rooms[1117] or to take game or possess shotguns.[1118] A discrimination between citizens and aliens in the matter of employment on public works is not unconstitutional.[1119] A State cannot, however, deny to aliens the right to earn a living in ordinary occupations. Consequently, a statute requiring that employers of more than five workers employ not less than eighty percent qualified electors or natural born citizens denies equal protection of the law.[1120] Likewise a State law forbidding the issuance of commercial fishing licenses to aliens ineligible for citizenship has been held void.[1121] State laws forbidding aliens to own real estate, have been upheld in the past.[1122] A less sympathetic attitude toward such legislation was indicated in Oyama _v._ California, in 1948.[1123] There the State of California sought to escheat land owned by an American-born son of a Japanese father under a provision of its Alien Land Law which made payment by an alien of the consideration for a transfer of land to a third person _prima facie_ evidence of intent to evade the statute. The Court held that the burden of proof imposed upon the son, an American citizen, by reason of his parent's country of origin, was an unlawful discrimination, but it did not pass upon the constitutionality of the Alien Land Law itself. In concurring opinions four Justices took the position that the law was incompatible with the Fourteenth Amendment.[1124] Labor Relations Objections to labor legislation on the ground that the limitation of particular regulations to specified industries was obnoxious to the equal protection clause, have been consistently overruled. Statutes limiting hours of labor for employees in mines, smelters,[1125] mills, factories,[1126] or on public works[1127] have been sustained. So also was a statute forbidding persons engaged in mining and manufacturing to issue orders for payment of labor unless redeemable at face value in cash.[1128] The exemption of mines employing less than ten persons from a law pertaining to measurement of coal to determine a miner's wages is not unreasonable.[1129] All corporations,[1130] or public service corporations,[1131] may be required to issue to employees who leave their service letters stating the nature of the service and the cause of leaving even though other employers are not. Industries may be classified in a workmen's compensation act according to the respective hazards of each;[1132] the exemption of farm laborers and domestic servants does not render such an act invalid.[1133] A statute providing that no person shall be denied opportunity for employment because he is not a member of a union does not offend the equal protection clause.[1134] Women, or particular classes of women, may be singled out for special treatment, in the exercise of the State's protective power, without violation of the Fourteenth Amendment. Classification may be based on differences either in their physical characteristics or in the social conditions which surround their employment. Restrictions on conditions of employment in particular occupations are not invalid because the law might have been made broader.[1135] One of the earliest pieces of social legislation to be sustained was a ten-hour law for women employed in laundries.[1136] A law limiting hours of labor for women in hotels is not rendered unconstitutional by reason of the exemption of certain railroad restaurants.[1137] Night work by women in restaurants may be prohibited.[1138] Reversing earlier decisions, the Supreme Court upheld a minimum wage law for women in 1937, saying that their unequal bargaining position justified a law applicable only to them.[1139] Women may be forbidden to engage in an occupation where their employment may create special moral and social problems. A State statute forbidding women to act as bartenders, but making an exception in favor of wives and daughters of the male owners of liquor establishments was sustained over the objection, which three Justices found persuasive, that the act denied the equal protection of the law to female owners of such establishments.[1140] Said Justice Frankfurter for the majority: "The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. * * * The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards."[1141] Monopolies On the principle that the law may hit the evil where it is most felt, State Antitrust Laws applicable to corporations but not to individuals,[1142] or to vendors of commodities but not to vendors of labor,[1143] have been upheld. Contrary to its earlier view, the Court now holds that an Antitrust Act which exempts agricultural products in the hands of the producer is valid.[1144] Diversity with respect to penalties also has been sustained. Corporations violating the law may be proceeded against by bill in equity, while individuals are indicted and tried.[1145] A provision, superimposed upon the general Antitrust Law, for revocation of the licenses of fire insurance companies which enter into illegal combinations, does not violate the equal protection clause.[1146] A grant of monopoly privileges, if otherwise an appropriate exercise of the police power, is immune to attack under that clause.[1147] Punishment for Crime Equality of protection under the law implies that in the administration of criminal justice no person shall be subject to any greater or different punishment than another in similar circumstances.[1148] Comparative gravity of criminal offenses is a matter for the State to determine, and the fact that some offenses are punished with less severity than others does not deny equal protection.[1149] Heavier penalties may be imposed upon habitual criminals for like offenses,[1150] even after a pardon for an earlier offense,[1151] and such persons may be made ineligible for parole.[1152] A State law doubling the sentence on prisoners attempting to escape does not deny equal protection in subjecting prisoners who attempt to escape together to different sentences depending on their original sentences.[1153] Infliction of the death penalty for assaults with intent to kill by life term convicts is not unconstitutional because not applicable to convicts serving lesser terms.[1154] The Fourteenth Amendment does not preclude the commitment of persons who, by an habitual course of misconduct, have evidenced utter lack of power to control sexual impulses, and are likely to inflict injury.[1155] A statute prohibiting a white person and a Negro from living together in adultery or fornication is not invalid because it prescribes penalties more severe than those to which the parties would be subject were they both of the same race.[1156] The equal protection clause does not prevent the execution of a prisoner after the accidental failure of the first attempt.[1157] It does, however, render invalid a statute requiring sterilization of persons convicted of various offenses, including larceny by fraud, but exempting embezzlers.[1158] Segregation Laws designed to segregate persons of different races in the location of their homes, in the public schools and on public conveyances have been a prolific source of litigation under the equal protection clause. An ordinance intended to segregate the homes of white and colored races is invalid.[1159] Private covenants forbidding the transfer of real property to persons of a certain race or color have been held lawful,[1160] but the enforcement of such agreements by a State through its courts would constitute a denial of equal protection of the laws.[1161] A statute providing for separate but equal accommodations on railroads for white and colored persons has been held not to deny equal protection of the law,[1162] but a separate coach law which permits carriers to provide sleeping and dining cars only for white persons, is invalid notwithstanding recognition by the legislature that there would be little demand for them by colored persons.[1163] Fifty years ago the action of a local board of education in suspending temporarily for economic reasons a high school for colored children was held not to be a sufficient reason for restraining the board from maintaining an existing high school for white children, when the evidence did not indicate that the board had proceeded in bad faith or had acted in hostility to the colored race.[1164] A child of Chinese ancestry, who is a citizen of the United States, is not denied equal protection of law by being assigned to a public school provided for colored children, when equal facilities for education are offered to both races.[1165] Although the principle that separate but equal facilities satisfy constitutional requirements has not been reversed, the Court in recent years has been inclined to review more critically the facts of cases brought before it to ascertain whether equality has, in fact, been offered. In Missouri _v._ Canada[1166] it held that the State was denying equal protection of the law in failing to provide a legal education within the State for Negroes comparable to that afforded white students. Pursuant to a policy of segregating Negro and white students, the State had established a law school at the State university for white applicants. In lieu of setting up one at its Negro university, it authorized the curators thereof to establish such a school whenever in their opinion it should be necessary and practicable to do so, and pending such development, to arrange and pay for the legal education of the State's Negroes at schools in other States. This was found insufficient; the obligation of the State to afford the protection of equal law can be performed only where its laws operate, that is to say, within its own jurisdiction. It is there that equality of rights must be maintained. In a later case the Court held that the State of Oklahoma was obliged to provide legal education for a qualified Negro applicant as soon as it did for applicants of any other group.[1167] To comply with this mandate a State court entered an order requiring in the alternative the admission of a Negro to the state-maintained law school or non-enrollment of any other applicant until a separate school with equal educational facilities should be provided for Negroes. Over the objection of two Justices the Supreme Court held this order did not depart from its mandate.[1168] After a close examination of the facts, the Court concluded, in Sweatt _v._ Painter,[1169] that the legal education offered in a separate law school for Negroes was inferior to that afforded by the University of Texas Law School and hence that the equal protection clause required that a qualified applicant be admitted to the latter. In McLaurin _v._ Oklahoma State Regents[1170] the Court held that enforced segregation of a Negro student admitted to a State university was invalid because it handicapped him in the pursuit of effective graduate instruction. POLITICAL RIGHTS In conjunction with the Fifteenth Amendment the equal protection clause has played an important role in cases involving various expedients devised to deprive Negro citizens of the right of suffrage. Attempts have also been made, but thus far without success, to invoke this clause against other forms of political inequality. The principal devices employed to prevent voting by Negroes have been grandfather clauses, educational qualifications, registration requirements and restrictions on membership in a political party. Grandfather clauses exempting persons qualified as electors before 1866 and their descendants from requirements applicable to other voters, were held to violate the Fifteenth Amendment.[1171] Educational qualifications which did not on their face discriminate between white and Negro voters were sustained in the absence of a showing that their actual administration was evil.[1172] In 1903 in a suit charging that the registration procedure prescribed by statute was fraudulently designed to prevent Negroes from voting, the Court, in an opinion written by Justice Holmes, refused to order the registration of an allegedly qualified Negro, on the whimsical ground that to do so would make the Court a party to the fraudulent plan.[1173] The opinion was careful to state that "we are not prepared to say that an action at law could not be maintained on the facts alleged in the bill." Such an action was brought some years later in Oklahoma under a registration law enacted after its "grandfather" statute had been held unconstitutional. Registration was not necessary for persons who had voted at the previous election under the invalid statute. Other persons were required to register during a twelve day period or be forever disfranchised. A colored citizen who was refused the right to vote in 1934 because of failure to register during the prescribed period in 1916, was held to have a cause of action for damages against the election officials under the Civil Rights Act of 1871. In the opinion of the Court reversing a judgment for the defendants, Justice Frankfurter said:[1174] "The Amendment nullifies sophisticated as well as simple minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race." As the selection of candidates by primary elections became general, the denial of the right to vote in the primary assumed dominant importance. For many years the Court hesitated to hold that party primaries were elections within the purview of the Constitution. During that period the equal protection clause was relied upon to invalidate discrimination against Negroes. Under the clause, it is necessary to find that inequality is perpetrated by the State.[1175] The Court had no difficulty in holding that a State statute which forbade voting by Negroes in a party primary was obnoxious to the Fourteenth Amendment.[1176] The same conclusion was reached with respect to exclusion by action of a party executive committee pursuant to authority conferred by statute.[1177] But at first it refused to extend this rule to a restriction on membership imposed without statutory authority by the State convention of a party.[1178] The latter case was soon overruled; having, in the meanwhile, decided that a primary is an integral part of the electoral machinery,[1179] the Court ruled in Smith _v._ Allwright,[1180] that a restriction on party membership imposed by a State convention was invalid under the Fifteenth Amendment, where such membership was a prerequisite for voting in the primary. Failure has attended the few attempts which have been made to strike down other alleged discriminations in election laws or in their administration. Nearly fifty years ago the Court rejected a claim that an act forbidding the registration of a voter until one year after his intent to become a legal voter shall have been recorded was a denial of equal protection.[1181] In Snowden _v._ Hughes,[1182] it held that an alleged erroneous refusal of a State Primary Canvassing Board to certify a person as a successful candidate in a party primary was not, in the absence of a showing of purposeful discrimination, a denial of a constitutional right which would justify a suit for damages against members of the Board. Three recent attacks on inequalities in the effective voting power of persons residing in different geographical areas were likewise unsuccessful. The Court refused, in Colegrove _v._ Green,[1183] to interfere to prevent the election of Representatives in Congress by districts in Illinois, because of unequal apportionment. Two years later, in MacDougall _v._ Green[1184] it held that a State law requiring candidates of a new political party to obtain a minimum number of signatures on their nominating petitions in each of 50 counties did not withhold equal justice from the overwhelming majority of the voters who resided in the 49 most populous counties. Over the dissent of Justices Black and Douglas it affirmed the action of a federal district court in dismissing a complaint challenging the validity of Georgia's county unit election system, under which the votes of residents of the most populous county have on the average but one-tenth the weight of those in other counties.[1185] PROCEDURE General Doctrine The equal protection clause does not exact uniformity of procedure. State legislatures may classify litigation and adopt one type of procedure for one class and a different type for another. The procedure followed in condemnation suits brought by a State need not be the same as in a suit started by a private corporation.[1186] Procedural rules may vary in different geographic subdivisions of the State; the State may be given a larger number of peremptory challenges to jurors in capital cases in cities having more than 100,000 inhabitants than in other areas.[1187] A State may require that disputes on the amount of loss under fire insurance policies be submitted to arbitration.[1188] It may prescribe the evidence which shall be received and the effect which shall be given it; proof of one fact, or of several facts taken collectively, may be made _prima facie_ evidence of another fact, so long as it is not a mere arbitrary mandate and does not discriminate invidiously between different persons in substantially the same situations.[1189] A plaintiff in a stockholder's derivative suit may be required to give security if he does not own a specified amount of stock; the size of his financial interest may reasonably be considered as some measure of his good faith and responsibility in bringing the suit.[1190] Access to Courts The legislature may provide for diversity in the jurisdiction of its several courts, both as to subject matter and finality of decision, if all persons within the territorial limits of the respective jurisdiction have an equal right in like cases to resort to them for redress.[1191] There is no denial of equal protection of the law by reason of the fact that in one district the State is allowed an appeal and in another district it is not.[1192] The legislative discretion to grant or withhold equitable relief in any class of cases must, under the equal protection clause, be so exercised as not to grant equitable relief to one, and to deny it to another under like circumstances and in the same territorial jurisdiction. A State law forbidding injunctions in labor disputes is invalid where injunctive relief is available in other similar controversies.[1193] The action of prison officials in suppressing a prisoner's appeal documents during the statutory period for appeal constitutes a denial of equal protection by refusing him privileges of appeal that were available to others.[1194] Corporations A statute permitting suits against domestic corporations to be brought in any county in which the cause of action arose, is not void as denying equal protection.[1195] Neither is a statute applicable only to corporations requiring the production of books and papers upon notice, with punishment for contempt upon neglect or refusal to comply.[1196] Where, however, actions against domestic corporations may be brought only in counties where they may have places of business or where a chief officer resides, a statute authorizing action against a foreign corporation in any county is discriminatory and invalid.[1197] So also is a statute, applicable only to foreign corporations, which requires the corporation, as a condition precedent to maintenance of an action, to send its officer into the State, with papers and books bearing on the matter in controversy, for examination before trial, where nonresident individuals, as well as individuals and corporations within the State, were subject to less onerous requirements.[1198] Expenses of Litigation A statute which directs that life and health insurance companies who default in payments of their policies shall pay 12 per cent damages, together with reasonable attorney's fees, does not deny the equal protection of the law in failing to impose the same conditions on fire, marine, and inland insurance companies, and on mutual benefit and relief associations.[1199] Costs may be allowed to a person who has been subjected to malicious prosecution, with provision for commitment of the prosecutor until paid.[1200] Statutes providing for recovery of reasonable attorney's fees in action on small claims against all classes of defendants, individual and corporate,[1201] in mandamus proceedings,[1202] or in actions against railroads for damages caused by fires[1203] have been upheld. But a statute, applicable only to railway corporations, providing for recovery of attorney's fees and costs in actions for certain small claims was found to be repugnant to the equal protection clause.[1204] Selection of Jury Exercising the authority conferred by section 5 of the Fourteenth Amendment, Congress has expressly forbidden the exclusion of any citizen from service as a grand or petit juror in any federal or State court, on the ground of race or color.[1205] Jury commissioners are under the duty "not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds."[1206] An accused does not, however, have a legal right to a jury composed in whole or in part of members of his own race.[1207] Mere inequality in the numbers of persons selected from different races is not conclusive; discrimination is unlawful only if it is purposeful and systematic.[1208] But where it appeared that no Negro had served on a grand or petit jury for thirty years in a county in which 35 per cent of the adult population was colored, the inference of systematic exclusion was not repelled by a showing that few Negroes fulfilled the requirement that a juror must be a qualified elector.[1209] To what extent, if at all, the equal protection clause prevents the exclusion from jury service of any class of persons on any basis other than race or color is a still unsettled problem of constitutional interpretation. The selection of jurors may be confined to males, to citizens, to qualified electors, to persons within certain ages, or to persons having prescribed educational qualifications.[1210] Certain occupational groups, such as lawyers, preachers, ministers, doctors, dentists, and engineers and firemen of railroad trains may be excluded from jury service.[1211] An issue of even greater consequence is raised by differentiation in the qualifications of persons selected to try different kinds of cases. This was the question on which the Supreme Court divided five to four in Fay _v._ New York[1212] where it upheld a conviction by a "blue ribbon" jury. In that case defendants, officials of certain labor unions, were convicted of extortion, by collecting large sums from contractors for assisting them in avoiding labor troubles. From a "blue ribbon" jury certain categories of persons qualified for ordinary jury duty are excluded; and on this ground defendants claimed that in being tried by such a jury they had been denied "equal protection of the law" and deprived of "due process of law," but especially the former, alleging that such juries had a higher record of conviction than ordinary juries and that their sympathies were "conservative." The Court, speaking by Justice Jackson, answered that "a state is not required to try all offenses to the same forum," but conceded that "a discretion, even if vested in the court, to shunt a defendant before a jury so chosen as greatly to lessen his chances while others accused of a like offense are tried by a jury so drawn as to be more favorable to them, would hardly be 'equal protection of the laws.'"[1213] However, he asserted that the New York statute authorizing "blue ribbon" juries "does not exclude, or authorize the clerk to exclude, any person or class because of race, creed, color or occupation. It imposes no qualification of an economic nature beyond that imposed by the concededly valid general panel statute. Each of the grounds of elimination is reasonably and closely related to the juror's suitability for the kind of service the special panel requires or to his fitness to judge the kind of cases for which it is most frequently utilized. Not all of the grounds of elimination would appear relevant to the issues of the present case. But we know of no right of defendants to have a specially constituted panel which would include all persons who might be fitted to hear their particular and unique case."[1214] He held further that defendants had failed to shoulder the necessary burden of proof in support of their allegations of discrimination, and added: "At most, the proof shows lack of proportional representation and there is an utter deficiency of proof that this was the result of a purpose to discriminate against this group as such. The uncontradicted evidence is that no person was excluded because of his occupation or economic status. All were subjected to the same tests of intelligence, citizenship and understanding of English. The state's right to apply these tests is not open to doubt even though they disqualify, especially in the conditions that prevail in New York, a disproportionate number of manual workers. A fair application of literacy, intelligence and other tests would hardly act with proportional equality on all levels of life. The most that the evidence does is to raise, rather than answer, the question whether there was an unlawful disproportionate representation of lower income groups on the special jury."[1215] Then, as to the due process clause, he pointed out that the jury had had a long and varied history in the course of which it has assumed many forms, and that for that matter the Court "* * * has construed it to be inherent in the independent concept of due process that condemnation shall be rendered only after a trial, in which the hearing is a real one, not a sham or pretense. * * * Trial must be held before a tribunal not biased by interest in the event. * * * Undoubtedly a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process. A verdict on the evidence, however, is all an accused can claim; he is not entitled to a set-up that will give a chance of escape after he is properly proven guilty. Society also has a right to a fair trial. The defendant's right is a neutral jury. He has no constitutional right to friends on the jury."[1216] APPORTIONMENT OF REPRESENTATION Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. In General The effect of this section in relation to Negroes was indicated in Elk _v._ Wilkins.[1217] "Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of * * * [Article I, § 2, cl. 3] of the * * * original Constitution as counted only three-fifths of such persons." "Indians Not Taxed" Although one authority on the legal status of the American Indian observed that this "* * * phrase [was] never * * * more explicitly defined, but probably * * * [meant] * * * Indians resident on reservations, that is, on land not taxed by the States,"[1218] the United States Attorney General, in 1940, commented as follows upon the difficulty of arriving at any satisfactory construction of these words: "Whether the phrase 'Indians not taxed' refers (1) to Indians not actually paying taxes or only to those who are not subject to taxation and (2) to Indians not taxed or subject to taxation by any taxing authority or only to those not taxed or subject to taxation by the States in which they reside * * * [presents] questions * * * [which have] been discussed in a number of court decisions but the issue has never been squarely raised in any of the decided cases. Some of the cases and some statements appearing in the debates in the Constitutional Convention lend support to the view that since all Indians are now subject to the Federal income-tax laws [Superintendent _v._ Commissioner, 295 U.S. 418 (1935)] there are no longer any Indians not taxed within the meaning of the constitutional phrase. On the other hand, other decided cases and other statements appearing in the debates in the Convention equally support the contrary view. * * *, the answer to * * * [these questions] is not free from doubt."[1219] As to the latest construction which Congress has given to this phrase in apportioning seats in the House of Representatives, it is pertinent to note that the Apportionment Act of 1929, at last amended in 1941,[1220] excludes "Indians not taxed" from the computation of the total population of each State. However, in reliance on the above-mentioned decision that all Indians are now subject to federal income taxation, the Director of the Census included all Indians in the 1940 tabulation of total population in each State, and Congress took no action to alter the effects which such inclusion had upon the number of seats distributed to the several States.[1221] Right to Vote The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State; subject, however, to the limitation that the Constitution, in article I, section 2, adopts as qualifications for voting for members of Congress those qualifications established by the States for voting for the most numerous branch of their legislatures. To the latter extent the right to vote for members of Congress has been declared to be fundamentally based upon the Constitution and as never having been intended to be left within the exclusive control of the States.[1222] Reduction of State's Representation "Questions relating to the apportionment of representatives among the several States are political in their nature and reside exclusively within the determination of Congress * * *" Consequently, a United States District Court was obliged to dismiss an action for damages against the Virginia Secretary of State for the latter's refusal to certify the plaintiff as candidate for the office of Congressman at large, inasmuch as the plaintiff's case rested on the theory that the apportionment act of Congress and the Redistricting Act of Virginia, by failing to take into account the disenfranchisement of 60% of the voters occasioned by the poll tax, were both invalid, and that Virginia accordingly was entitled to only four instead of nine Congressmen, which four were to be elected at large.[1223] "It is well known that the elective franchise has been limited or denied to citizens in various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of Representatives by Congress."[1224] DISQUALIFICATION OF OFFICERS Section 3. No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. In General The right to remove disabilities imposed by this section was exercised by Congress at different times on behalf of enumerated individuals--notably by act of December 14, 1869 (16 Stat. 607). In 1872, the disabilities were removed, by a blanket act, from all persons "except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial military, and naval service of the United States, heads of departments, and foreign ministers of the United States" (17 Stat. 142). Twenty-six years later, on June 6, 1898 (30 Stat. 432), Congress enacted briefly that "the disability imposed by section 3 * * * incurred heretofore [prior to June 6, 1898], is hereby removed."[1225] PUBLIC DEBT, ETC. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Although section four "was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation. * * * 'the validity of the public debt' * * * [embraces] whatever concerns the integrity of the public obligations," and applies to government bonds issued after as well as before adoption of the Amendment.[1226] ENFORCEMENT Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Scope of the Provision "* * * until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity: * * * The legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking."[1227] Conversely, Congress may enforce the provisions of the amendment whenever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of the enforcement is left to its discretion. It may secure the right, that is, enforce its recognition, by removing the case from a State court, in which it is denied, into a federal court where it will be acknowledged.[1228] Similarly, Congress may provide that "no citizen, possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, * * *"[1229] However, the Supreme Court declined to sustain Congress when, under the guise of enforcing the Fourteenth Amendment by appropriate legislation, it enacted a statute which was not limited to take effect only in case a State should abridge the privileges of United States citizens, but applied no matter how well the State might have performed its duty, and would subject to punishment private individuals who conspired to deprive anyone of the equal protection of the laws.[1230] Whether its powers of enforcement enable Congress constitutionally to punish State officers who abuse their authority and act in violation of their State's laws is a question on which the Justices only recently have divided. Five Justices ruled in Screws _v._ United States[1231] that section 20 of the Criminal Code[1232] which provides "whoever, under the color of any law, statute, ordinance, * * *, willfully subjects, * * *, any inhabitant of any State, * * * to the deprivation of any rights, * * * protected by the Constitution and laws of the United States, * * *" could be the basis of a prosecution of Screws, a Georgia sheriff, and others, on charges of having, in the course of arresting a Negro, brutally beaten him to death and deprive him of "the right not to be deprived of life without due process of law."[1233] Holding that, "abuse of State power" does not create "immunity to federal power" these five Justices concluded that Ex parte Virginia[1234] and United States _v._ Classic[1235] had rejected for all time the defense that action by state officers in excess of their powers did not constitute state action "under color of law" and therefore was punishable, if at all, only as a crime against the State.[1236] The conviction of Screws was, however, reversed on the ground that the jury should have been instructed to say whether the accused had had the "specific intent" to deprive their victim of his constitutional rights, since in the absence of such a finding § 20 failed for indefiniteness.[1237] But this construction of the word "willfully" appears subsequently to have been abandoned, or at least considerably watered down. In Williams _v._ United States,[1238] decided in April 1951, the Court ruled, by a bare majority, that a conviction under § 20 was not subject to objection on the ground of the vagueness of the statute where the indictment made it clear that the constitutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[1239] To the same effect is the later case of Koehler _v._ United States[1240] in which the Court denied certiorari in a case closely resembling that of Screws, although the trial judge, while charging the jury that it must find specific intent, nevertheless went on to say:"'The color of the act determines the complexion of the intent. The intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. It is a well settled rule, which the law applies to both criminal and civil cases, that the intent is presumed and inferred from the result of the action.'"[1241] Notes [1] As to the other categories, see Art. I, § 8, cl. 4, Naturalization (_see_ pp. 254-256). [2] Scott _v._ Sandford, 19 How. 393 (1897). [3] Ibid. 404-406, 417-418, 419-420. [4] By the Civil Rights Act of April 9, 1866 (14 Stat. 27), enacted two years prior to the Fourteenth Amendment, "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; * * *" [5] 169 U.S. 649 (1898).--Thus, a person who was born in the United States of Swedish parents then naturalized here did not lose her citizenship and was therefore not subject to deportation because of her removal to Sweden during her minority, it appearing that her parents resumed their citizenship in that country, but that she returned here on attaining majority with intention to retain and maintain her citizenship.--Perkins _v._ Elg, 307 U.S. 325 (1939). [6] 169 U.S. 682. [7] In re Look Tin Sing, 21 F. 905 (1884). [8] Lam Mow _v._ Nagle, 24 F. (2d) 316 (1928). [9] United States _v._ Gordon, Fed. Cas. No. 15,231 (1861). The term, United States, is defined in the recently enacted Immigration and Nationality Act as follows: "The term, 'United States', except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States." 66 Stat. 165, § 101 (38). Whether the expression is used in the same sense in Amendment XIV may be questionable. [10] Slaughter-House Cases, 16 Wall. 36, 74 (1873). [11] Arver _v._ United States (Selective Draft Law Cases), 245 U.S. 366, 377, 388-389 (1918). [12] Insurance Co. _v._ New Orleans, Fed. Cas. No. 7,052 (1870).--Not being citizens of the United States, corporations accordingly have been declared unable "to claim the protection of that clause of the Fourteenth Amendment which secures the privileges and immunities of citizens of the United States against abridgment or impairment by the law of a State."--Orient Ins. Co. _v._ Daggs, 172 U.S. 557, 561 (1899). This conclusion was in harmony with the earlier holding in Paul _v._ Virginia, 8 Wall. 168 (1869) to the effect that corporations were not within the scope of the privileges and immunities clause of state citizenship set out in article 4, section 2. _See also_ Selover, Bates & Co. _v._ Walsh, 226 U.S. 112, 126 (1912); Berea College _v._ Kentucky, 211 U.S. 45 (1908); Liberty Warehouse Co. _v._ Burley Tobacco Growers' Co-op. Marketing Asso., 276 U.S. 71, 89 (1928); Grosjean _v._ American Press Co., 297 U.S. 233, 244 (1936). [13] 16 Wall. 36, 71, 77-79 (1873). [14] Ibid. 78-79. [15] Ibid. 79, citing Crandall _v._ Nevada, 6 Wall. 35 (1868). Decided before ratification of the Fourteenth Amendment. [16] 211 U.S. 78, 97. [17] Crandall _v._ Nevada, 6 Wall. 35 (1868). This case has been cited as supporting the claim that "the right to pass freely from State to State" is "among the rights and privileges of National citizenship" (Twining _v._ New Jersey, 211 U.S. 78, 97 (1908)); but it was pointed out in United States _v._ Wheeler, 254 U.S. 281, 299 (1920), that the statute involved in the Crandall Case was held to burden directly the performance by the United States of its governmental functions. In Williams _v._ Fears, 179 U.S. 270, 274 (1900), a law taxing the business of hiring persons to labor outside the State was upheld on the ground that it affected freedom of egress from the State "only incidentally and remotely." [18] United States _v._ Cruikshank, 92 U.S. 542 (1876). [19] Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley _v._ Sinkler, 179 U.S. 58 (1900). [20] United States _v._ Waddell, 112 U.S. 76 (1884). [21] Logan _v._ United States, 144 U.S. 263 (1892). [22] Re Quarles, 158 U.S. 532 (1895). [23] Crutcher _v._ Kentucky, 141 U.S. 47, 57 (1891). [24] 307 U.S. 496. [25] Concurring in the result, Justice Stone contended that the case should have been disposed of by reliance upon the due process, rather than the privileges and immunities, clause, inasmuch as the record disclosed that the complainants had not invoked the latter clause and the evidence failed to indicate that any of the complainants were in fact citizens or that any relation between citizens and the Federal Government was involved.--Ibid. 525-527. [26] 314 U.S. 160, 177-183 (1941). [27] Justices Douglas, Black, Murphy and Jackson. [28] 6 Wall. 35 (1868). [29] 279 U.S. 245, 251 (1929). [30] 296 U.S. 404. [31] _See_ Madden _v._ Kentucky, 309 U.S. 83, 93. [32] 296 U.S. 404, 444, 445-446. [33] 332 U.S. 633, 645, 640. [34] Ibid. 640. [35] Holden _v._ Hardy, 169 U.S. 366, 380 (1898). [36] Williams _v._ Fears, 179 U.S. 270, 274 (1900). [37] Wilmington Star Min. Co. _v._ Fulton, 205 U.S. 60, 74 (1907). [38] Heim _v._ McCall, 239 U.S. 175 (1915); Crane _v._ New York, 239 U.S. 195 (1915). [39] Missouri P.R. Co. _v._ Castle, 224 U.S. 541 (1912). [40] Western U. Teleg. Co. _v._ Commercial Milling Co., 218 U.S. 406 (1910). [41] Bradwell _v._ Illinois, 16 Wall. 130, 139 (1873); Re Lockwood, 154 U.S. 116 (1894). [42] Kirtland _v._ Hotchkiss, 100 U.S. 491, 499 (1879). [43] Bartemeyer _v._ Iowa, 18 Wall. 129 (1874); Mugler _v._ Kansas, 123 U.S. 623 (1887); Crowley _v._ Christensen, 137 U.S. 86, 91 (1890); Giozza _v._ Tiernan, 148 U.S. 657 (1893). [44] Ex parte Kemmler, 136 U.S. 436 (1890). [45] Minor _v._ Happersett, 21 Wall. 162 (1875). [46] Pope _v._ Williams, 193 U.S. 621 (1904). [47] Ferry _v._ Spokane, P. & S.R. Co., 258 U.S. 314 (1922). [48] Walker _v._ Sauvinet, 92 U.S. 90 (1876). [49] Presser _v._ Illinois, 116 U.S. 252, 267 (1886). [50] Maxwell _v._ Dow, 176 U.S. 581, 596, 597-598 (1900). [51] Twining _v._ New Jersey, 211 U.S. 78, 91-98 (1908). Reaffirmed in Adamson _v._ California, 332 U.S. 46, 51-53 (1947). [52] New York ex rel. Bryant _v._ Zimmerman, 278 U.S. 63, 71 (1928). [53] Palko _v._ Connecticut, 302 U.S. 319 (1937). [54] Breedlove _v._ Suttles, 302 U.S. 277 (1937). [55] Madden _v._ Kentucky, 309 U.S. 83, 92-93 (1940); overruling Colgate _v._ Harvey, 296 U.S. 404, 430 (1935). [56] Snowden _v._ Hughes, 321 U.S. 1 (1944). [57] MacDougall _v._ Green, 335 U.S. 281 (1948) [58] Hibben _v._ Smith, 191 U.S. 310, 325 (1903). [59] Carroll _v._ Greenwich Ins. Co., 199 U.S. 401, 410 (1905). _See also_ French _v._ Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901). [60] Scott _v._ Sandford, 19 How. 393, 450 (1857), is the exception. _See_ pp. 963-964. [61] 16 Wall. 36 (1873). [62] Ibid. 80-81. [63] 94 U.S. 113 (1877). [64] Ibid. 134. [65] 96 U.S. 97 (1878). [66] Ibid. 103-104. [67] 110 U.S. 516 (1884). [68] Ibid. 528, 532, 536. [69] 94 U.S. 113, 141-148 (1877). [70] 123 U.S. 623, 661. [71] 16 Wall. 36, 113-114, 116, 122 (1873). [72] Savings & Loan Association _v._ Topeka, 20 Wall. 655, 663 (1875).--"There are * * * rights in every free government beyond the control of the State. * * * There are limitations on [governmental power] which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, * * *" [73] "Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; * * * This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property and right. * * * A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law."--Slaughter-House Cases, 16 Wall. 36, 116, 122 (Justice Bradley). [74] 143 U.S. 517, 551. [75] _See_ Fletcher _v._ Peck, 6 Cr. 87, 128 (1810). [76] 94 U.S. 113, 123, 132 (1877). [77] Ibid. 132. [78] 123 U.S. 623 (1887). [79] Ibid. 662.--"We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact, * * *, that * * * pauperism, and crime * * * are, in some degree, at least, traceable to this evil." [80] 127 U.S. 678 (1888). [81] Ibid. 685. [82] 169 U.S. 366 (1898). [83] 198 U.S. 45 (1905). [84] 127 U.S. 678 (1888). [85] 123 U.S. 623 (1887). [86] 169 U.S. 366, 398. [87] 198 U.S. 45, 58-59 (1905). [88] 198 U.S. 45, 71-74. [89] 198 U.S. 45, 75-76. [90] 243 U.S. 426 (1917.) [91] 208 U.S. 412 (1908). [92] Ibid. [93] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923); Stettler _v._ O'Hara, 243 U.S. 629 (1917); Morehead _v._ New York ex rel. Tipaldo, 298 U.S. 587 (1936); overruled by West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937). [94] West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937). Thus the National Labor Relations Act was declared not to "interfere with the normal exercise of the right of the employer to select its employees or to discharge them." However, restraint of the employer for the purpose of preventing an unjust interference with the correlative right of his employees to organize was declared not to be arbitrary.--National Labor Relations Board _v._ Jones & Laughlin, 301 U.S. 1, 44, 45-46 (1937). [95] _See_ especially Howard Jay Graham, "The 'Conspiracy Theory' of the Fourteenth Amendment", _Selected Essays on Constitutional Law_, I, 236-267 (1938). [96] 94 U.S. 113.--In a case arising under the Fifth Amendment, decided almost at the same time, the Court explicitly declared the United States "equally with the States * * * are prohibited from depriving persons or corporations of property without due process of law." Sinking Fund Cases, 99 U.S. 700, 718-719 (1878). [97] Smyth _v._ Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Finance Corp. _v._ Paramount Auto Exch. Corp., 262 U.S. 544, 550 (1923); Liggett (Louis K.) Co. _v._ Baldridge, 278 U.S. 105 (1928). [98] Northwestern Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243, 255 (1906); Western Turf Assoc. _v._ Greenberg, 204 U.S. 359, 363 (1907); Pierce _v._ Society of the Sisters, 268 U.S. 510, 535 (1925). Earlier, in 1904, in Northern Securities Co. _v._ United States, (193 U.S. 197, 362), a case interpreting the federal antitrust law, Justice Brewer, in a concurring opinion, had declared that "a corporation, * * *, is not endowed with the inalienable rights of a natural person." [99] Grosjean _v._ American Press Co., 297 U.S. 233, 244 (1936). [100] Yick Wo _v._ Hopkins, 118 U.S. 356 (1886); Terrace _v._ Thompson, 263 U.S. 197, 216 (1923). [101] Columbus & G.R. Co. _v._ Miller, 283 U.S. 96 (1931); Pennie _v._ Reis, 132 U.S. 464 (1889); Taylor _v._ Beckham (No. 1), 178 U.S. 548 (1900); Straus _v._ Foxworth, 231 U.S. 162 (1913); Tyler _v._ Judges of the Court of Registration, 179 U.S. 405, 410 (1900). [102] Pawhuska _v._ Pawhuska Oil Co., 250 U.S. 394 (1919); Trenton _v._ New Jersey, 262 U.S. 182 (1923); Williams _v._ Baltimore, 289 U.S. 36 (1933). [103] Boynton _v._ Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. 177 (1938). The converse is not true, however; and "the interest of a State official in vindicating the Constitution * * * gives him no legal standing to attack the constitutionality of a State statute in order to avoid compliance with it.--Smith _v._ Indiana, 191 U.S. 138 (1903); Braxton County Ct. _v._ West Virginia, 208 U.S. 192 (1908); Marshall _v._ Dye, 231 U.S. 250 (1913); Stewart _v._ Kansas City, 239 U.S. 14 (1915). _See also_ Coleman _v._ Miller, 307 U.S. 433, 437-446 (1939)." [104] Bacon _v._ Walker, 204 U.S. 311 (1907); Chicago, B. & Q.R. Co. _v._ Illinois ex rel. Grimwood, 200 U.S. 561, 592 (1906); California Reduction Co. _v._ Sanitary Reduction Works, 199 U.S. 306, 318 (1905); Eubank _v._ Richmond, 226 U.S. 137 (1912); Schmidinger _v._ Chicago, 226 U.S. 578 (1913); Sligh _v._ Kirkwood, 237 U.S. 52, 58-59 (1915); Nebbia _v._ New York, 291 U.S. 502 (1934); Nashville C. & St. L.R. Co. _v._ Walters, 294 U.S. 405 (1935). [105] Hadacheck _v._ Sebastian, 239 U.S. 394 (1915); Hall _v._ Geiger-Jones Co., 242 U.S. 539 (1917); Sligh _v._ Kirkwood, 237 U.S. 52, 58-59 (1915); Eubank _v._ Richmond, 226 U.S. 137, 142 (1912); Erie R. Co. _v._ Williams, 233 U.S. 685, 699 (1914); Panhandle Eastern Pipe Line Co. _v._ State Highway Commission, 294 U.S. 613, 622 (1935); Hudson County Water Co. _v._ McCarter, 209 U.S. 349 (1908). [106] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548, 558 (1914). [107] Treigle _v._ Acme Homestead Asso., 297 U.S. 189, 197 (1933); Liggett (Louis K.) Co. _v._ Baldridge, 278 U.S. 105, 111-112 (1928). [108] Pennsylvania Coal Co. _v._ Mahon, 260 U.S. 393 (1922). _See also_ Welch _v._ Swasey, 214 U.S. 91, 107 (1909). [109] Noble State Bank _v._ Haskell, 219 U.S. 104, 110 (1911). [110] Erie R. Co. _v._ Williams, 233 U.S. 685, 700 (1914). [111] New Orleans Public Service Co. _v._ New Orleans, 281 U.S. 682, 687 (1930). [112] Abie State Bank _v._ Bryan, 282 U.S. 765, 770 (1931). [113] Meyer _v._ Nebraska, 262 U.S. 300, 399 (1923). [114] Jacobson _v._ Massachusetts, 197 U.S. 11 (1905); Zucht _v._ King, 260 U.S. 174 (1922). [115] Buck _v._ Bell, 274 U.S. 200 (1927). [116] Minnesota _v._ Probate Court, 309 U.S. 270 (1940). [117] Lanzetta _v._ New Jersey, 306 U.S. 451 (1939). [118] 262 U.S. 390 (1923). [119] 268 U.S. 510 (1925). [120] Ibid. 534. Even this statement was a dictum. Inasmuch as only corporations and no parents were party litigants, the Court in fact disposed of the case on the ground that the corporations were being deprived of their "property" without due process of law. [121] Waugh _v._ Mississippi University, 237 U.S. 589, 596-597 (1915). [122] Hamilton _v._ University of California, 293 U.S. 245, 262 (1934). _See also_ p. 768. [123] 16 Wall. 36 (1873). [124] 165 U.S. 578, 589.--Herein liberty of contract was defined as follows: "The liberty mentioned in that [Fourteenth] Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." [125] 236 U.S. 1, 14 (1915). [126] Chicago, B. & Q.R. Co. _v._ McGuire, 219 U.S. 549, 567, 570 (1911); Wolff Packing Co. _v._ Court of Industrial Relations, 262 U.S. 522, 534 (1923). [127] Holden _v._ Hardy, 169 U.S. 366 (1898). [128] Miller _v._ Wilson, 236 U.S. 373 (1915); Bosley _v._ McLaughlin, 236 U.S. 385 (1915). _See also_ Muller _v._ Oregon, 208 U.S. 412 (1908); Riley _v._ Massachusetts, 232 U.S. 671 (1914); Hawley _v._ Walker, 232 U.S. 718 (1914). [129] Bunting _v._ Oregon, 243 U.S. 426 (1917). [130] Atkin _v._ Kansas, 191 U.S. 207 (1903). [131] Consolidated Coal Co. _v._ Illinois, 185 U.S. 203 (1902). [132] Wilmington Star Min. Co. _v._ Fulton, 205 U.S. 60 (1907). [133] Barrett _v._ Indiana, 299 U.S. 26 (1913). [134] Plymouth Coal Co. _v._ Pennsylvania, 232 U.S. 531 (1914). [135] Booth _v._ Indiana, 237 U.S. 391 (1915). [136] Sturges & B. Mfg. Co. _v._ Beauchamp, 231 U.S. 320 (1914). [137] Knoxville Iron Co. _v._ Harbison, 183 U.S. 13 (1901); Dayton Coal & I. Co. _v._ Barton, 183 U.S. 23 (1901); Keokee Consol. Coke Co. _v._ Taylor, 234 U.S. 224 (1914). [138] Erie R. Co. _v._ Williams, 233 U.S. 685 (1914). [139] St. Louis, I.M. & S.R. Co. _v._ Paul, 173 U.S. 404 (1899). [140] Rail & River Coal Co. _v._ Yaple, 236 U.S. 338 (1915). _See also_ McClean _v._ Arkansas, 211 U.S. 539 (1909). [141] West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937), overruling Adkins _v._ Children's Hospital, 261 U.S. 255 (1923) (a Fifth Amendment case); Morehead _v._ New York ex rel. Tipaldo, 298 U.S. 587 (1936). [142] Day-Brite Lighting, Inc. _v._ Missouri, 342 U.S. 421, 423 (1952). [143] Ibid., 424-425. [144] New York C.R. Co. _v._ White, 243 U.S. 188, 200 (1917). [145] Arizona Copper Co. _v._ Hammer (Arizona Employers' Liability Cases), 250 U.S. 400, 419-420 (1919). [146] In determining what occupations may be brought under the designation of "hazardous," the legislature may carry the idea to the "vanishing point."--Ward & Gow _v._ Krinsky, 259 U.S. 503, 520 (1922). [147] New York C.R. _v._ White, 243 U.S. 188 (1917); Mountain Timber Co. _v._ Washington, 243 U.S. 219 (1917). [148] Arizona Copper Co. _v._ Hammer (Arizona Employers' Liability Cases), 250 U.S. 400, 419-420 (1919). [149] Hawkins _v._ Bleakly, 243 U.S. 210 (1917). [150] Chicago, B. & Q.R. Co. _v._ McGuire, 219 U.S. 549 (1911). [151] Alaska Packers Asso. _v._ Industrial Commission, 294 U.S. 532 (1935). [152] Thornton _v._ Duffy, 254 U.S. 361 (1920). [153] Booth Fisheries Co. _v._ Industrial Commission, 271 U.S. 208 (1920). [154] Staten Island R.T.R. Co. _v._ Phoenix Indemnity Co., 281 U.S. 98 (1930). [155] Sheehan Co. _v._ Shuler, 265 U.S. 371 (1924); New York State R. Co. _v._ Shuler, 265 U.S. 379 (1924). [156] New York C.R. Co. _v._ Bianc, 250 U.S. 596 (1919).--Attorneys are not deprived of property or their liberty of contract by restriction imposed by the State on the fees which they may charge in cases arising under the workmen's compensation law.--Yeiser _v._ Dysart, 267 U.S. 540 (1925). [157] Justice Black in Lincoln Union _v._ Northwestern Co., 335 U.S. 525, 535 (1949). _See also_ pp. 141, 977-979, 985. In his concurring opinion, contained in the companion case of American Federation of Labor _v._ American Sash Co., 335 U.S. 538, 543-544 (1949), Justice Frankfurter summarized as follows the now obsolete doctrines employed by the Court to strike down State laws fostering unionization. "* * * unionization encountered the shibboleths of a premachine age and these were reflected in juridical assumptions that survived the facts on which they were based. Adam Smith was treated as though his generalizations had been imparted to him on Sinai and not as a thinker who addressed himself to the elimination of restrictions which had become fetters upon initiative and enterprise in his day. Basic human rights expressed by the constitutional conception of 'liberty' were equated with theories of _laissez faire_. The result was that economic views of confined validity were treated by lawyers and judges as though the Framers had enshrined them in the Constitution. * * * The attitude which regarded any legislative encroachment upon the existing economic order as infected with unconstitutionality led to disrespect for legislative attempts to strengthen the wage-earners' bargaining power. With that attitude as a premise, Adair _v._ United States, 208 U.S. 161 (1908), and Coppage _v._ Kansas, 236 U.S. 1 (1915), followed logically enough; not even Truax _v._ Corrigan, 257 U.S. 312 (1921), could be considered unexpected." On grounds of unconstitutional impairment of freedom of contract, or more particularly, of the unrestricted right of the employer to hire and fire, a federal and a State statute attempting to outlaw "yellow dog" contracts whereby, as a condition of obtaining employment, a worker had to agree not to join or to remain a member of a union, were voided in Adair _v._ United States and Coppage _v._ Kansas, respectively. In Truax _v._ Corrigan, a majority of the Court held that an Arizona statute which operated, in effect, to make remediless [by forbidding the use of injunction] injury to an employer's business by striking employees and others, through concerted action in picketing, displaying banners advertising the strike, denouncing the employer as unfair to union labor, appealing to customers to withdraw their patronage, and circulating handbills containing abusive and libelous charges against employers, employees, and patrons, and intimidations of injury to future patrons, deprives the owner of the business and the premises of his property without due process of law. In Wolff Packing Co. _v._ Industrial Court, 262 U.S. 522 (1923); 267 U.S. 552 (1925) and in Dorchy _v._ Kansas, 264 U.S. 286 (1924), the Court had also ruled that a statute compelling employers and employees to submit their controversies over wages and hours of labor to State arbitration was unconstitutional as part of a system compelling employers and employees to continue in business on terms not of their own making. [158] 301 U.S. 468 (1937). [159] Prudential Ins. Co. _v._ Cheek, 259 U.S. 530 (1922). In conjunction with its approval of this statute, the Court also sanctioned judicial enforcement by a State court of a local rule of policy which rendered illegal an agreement of several insurance companies having a monopoly of a line of business in a city that none would employ within two years any man who had been discharged from, or left, the service of any of the others. [160] Chicago, R.I. & P.R. Co. _v._ Perry, 259 U.S. 548 (1922). [161] Dorchy _v._ Kansas, 272 U.S. 306 (1926). [162] 301 U.S. 468, 479 (1937). [163] _See_ p. 1141. [164] Cases disposing of the contention that restraints on picketing amount to a denial of freedom of speech and constitute therefore a deprivation of liberty without due process of law have been set forth under Amendment I. [165] 326 U.S. 88 (1945). [166] Ibid. 94. Justice Frankfurter, concurring, declared that "the insistence by individuals on their private prejudices * * *, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which the Constitution itself exacts." Ibid. 98. [167] 335 U.S. 525 (1949). [168] 335 U.S. 538 (1949). [169] 335 U.S. 525, 534, 537. In a lengthy opinion, in which he registered his concurrence with both decisions, Justice Frankfurter set forth extensive statistical data calculated to prove that labor unions not only were possessed of considerable economic power but by virtue of such power were no longer dependent on the closed shop for survival. He would therefore leave to the legislatures the determination "whether it is preferable in the public interest that trade unions should be subjected to State intervention or left to the free play of social forces, whether experience has disclosed 'union unfair labor practices,' and, if so, whether legislative correction is more appropriate than self-discipline and pressure of public opinion--* * *." 335 U.S. 538, 549-550. [170] 336 U.S. 245 (1949). [171] Ibid. 253. [172] 336 U.S. 490 (1949). Other recent cases regulating picketing are treated under Amendment I, _see_ p. 781. [173] 94 U.S. 113 (1877). [174] Chicago, M. & St. P.R. Co. _v._ Minnesota, 134 U.S. 418 (1890). [175] Wolff Packing Co. _v._ Court of Industrial Relations, 262 U.S. 522, 535-536 (1923). [176] Munn _v._ Illinois, 94 U.S. 113 (1877); Budd _v._ New York, 143 U.S. 517, 546 (1802); Brass _v._ North Dakota ex rel. Stoeser, 153 U.S. 391 (1894). [177] Cotting _v._ Godard, 183 U.S. 79 (1901). [178] Townsend _v._ Yeomans, 301 U.S. 441 (1937). [179] German Alliance Ins. Co. _v._ Lewis, 233 U.S. 389 (1914); Aetna Ins. Co. _v._ Hyde, 275 U.S. 440 (1928). [180] O'Gorman & Young _v._ Hartford F. Ins. Co., 282 U.S. 251 (1931). [181] Williams _v._ Standard Oil Co., 278 U.S. 235 (1929). [182] Tyson & Bros.--United Theatre Ticket Offices _v._ Banton, 273 U.S. 418 (1927). [183] New State Ice Co. _v._ Liebmann, 285 U.S. 262 (1932). [184] Nebbia _v._ New York, 291 U.S. 502, 531-532, 535-537, 539 (1934). In reaching this conclusion the Court might be said to have elevated to the status of prevailing doctrine the views advanced in previous decisions by dissenting Justices. Thus, Justice Stone, dissenting in Ribnik _v._ McBride, 277 U.S. 350, 350-360 (1928) had declared: "Price regulation is within the State's power whenever any combination of circumstances seriously curtails the regulative force of competition so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that a legislature might reasonably anticipate serious consequences to the community as a whole." In his dissenting opinion in New State Ice Co. _v._ Liebmann, 285 U.S. 202, 302-303 (1932), Justice Brandeis had also observed that: "The notion of a distinct category of business 'affected with a public interest' employing property 'devoted to a public use' rests upon historical error. In my opinion the true principle is that the State's power extends to every regulation of any business reasonably required and appropriate for the public protection. I find in the due process clause no other limitation upon the character or the scope of regulation permissible." [185] Justice McReynolds, speaking for the dissenting Justices, labelled the controls imposed by the challenged statute as a "fanciful scheme to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold." Intimating that the New York statute was as efficacious as a safety regulation which required "householders to pour oil on their roofs as a means of curbing the spread of a neighborhood fire," Justice McReynolds insisted that "this Court must have regard to the wisdom of the enactment," and must determine "whether the means proposed have reasonable relation to something within legislative power."--291 U.S. 502, 556, 558 (1934). [186] 313 U.S. 236, 246 (1941). [187] 277 U.S. 350 (1928). [188] 94 U.S. 113 (1877). _See also_ Peik _v._ Chicago & N.W.R. Co., 94 U.S. 164 (1877). [189] Rate-making is deemed to be one species of price fixing. Power Comm'n _v._ Pipeline Co., 315 U.S. 575, 603 (1942). [190] Nebbia _v._ New York, 291 U.S. 502 (1934). [191] 96 U.S. 97 (1878). _See also_ Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897). [192] 116 U.S. 307 (1886). [193] Dow _v._ Beidelman, 125 U.S. 680 (1888). [194] 134 U.S. 418, 458 (1890). [195] 143 U.S. 517 (1892). [196] 154 U.S. 362, 397 (1894). [197] Ibid 397. Insofar as judicial intervention resulting in the invalidation of legislatively imposed rates has involved carriers, it should be noted that the successful complainant invariably has been the carrier, not the shipper. [198] 169 U.S. 466 (1898).--Of course the validity of rates prescribed by a State for services wholly within its limits, must be determined wholly without reference to the interstate business done by a public utility. Domestic business should not be made to bear the losses on interstate business, and vice versa. Thus a State has no power to require the hauling of logs at a loss or at rates that are unreasonable, even if a railroad receives adequate revenues from the intrastate long haul and the interstate lumber haul taken together. On the other hand, in determining whether intrastate passenger railway rates are confiscatory, all parts of the system within the State (including sleeping, parlor, and dining cars) should be embraced in the computation; and the unremunerative parts should not be excluded because built primarily for interstate traffic or not required to supply local transportation needs.--_See:_ Minnesota Rate Cases (Simpson _v._ Shepard), 230 U.S. 352, 434-435 (1913); Chicago, M. & St. P.R. Co. _v._ Public Utilities Commission, 274 U.S. 344 (1927); Groesbeck _v._ Duluth, S.S. & A.R. Co., 250 U.S. 607 (1919). The maxim that a legislature cannot delegate legislative power is qualified to permit creation of administrative boards to apply to the myriad details of rate schedules the regulatory police power of the State. To prevent the conferring upon an administrative agency of authority to fix rates for public service from being a mere delegation of legislative power, and therefore void, the legislature must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its functions, with which the agency must substantially comply to validate its action. Wichita Railroad & L. Co. _v._ Public Utilities Commission, 260 U.S. 48 (1922). [199] Reagan _v._ Farmers' Loan & Trust Company, 154 U.S. 362, 397 (1894). [200] Interstate Commerce Commission _v._ Illinois C.R. Co., 215 U.S. 452, 470 (1910). [201] 231 U.S. 298, 310-313 (1913). [202] Des Moines Gas Co. _v._ Des Moines, 238 U.S. 153 (1915). [203] Minnesota Rate Cases (Simpson _v._ Shepard), 230 U.S. 352, 452 (1913). [204] Knoxville _v._ Water Company, 212 U.S. 1 (1909). [205] Smith _v._ Illinois Bell Teleph. Co., 270 U.S. 587 (1926). [206] Willcox _v._ Consolidated Gas Co., 212 U.S. 19 (1909). [207] 174 U.S. 739, 750, 754 (1899). _See also_ Minnesota Rate Cases (Simpson _v._ Shepard), 230 U.S. 352, 433 (1913). [208] San Diego Land & Town Co. _v._ Jasper, 189 U.S. 439, 441, 442 (1903). _See also_ Van Dyke _v._ Geary, 244 U.S. 39 (1917); Georgia Ry. _v._ R.R. Comm., 262 U.S. 625, 634 (1923). [209] For its current position, _see_ Crowell _v._ Benson, 285 U.S. 22 (1932). [210] 222 U.S. 541, 547-548 (1912). _See also_ Interstate Comm. Comm. _v._ Illinois C.R., 215 U.S. 452, 470 (1910). [211] 253 U.S. 287, 293-294 (1920). [212] Ibid. 289. In injunctive proceedings, evidence is freshly introduced whereas in the cases received on appeal from State courts, the evidence is found within the record. [213] 231 U.S. 298 (1913). [214] 253 U.S. 287, 291, 295 (1920). [215] 94 U.S. 113 (1877). [216] 315 U.S. 575, 586. [217] 320 U.S. 591, 602.--Although this and the previously cited decision arose out of controversies involving the Natural Gas Act of 1938 (52 Stat. 821), the principles laid down therein are believed to be applicable to the review of rate orders of State commissions, except insofar as the latter operate in obedience to laws containing unique standards or procedures. [218] 253 U.S. 287 (1920). [219] In Federal Power Commission _v._ Nat. Gas Pipeline Co., 315 U.S. 575, 599, Justices Black, Douglas, and Murphy, in a concurring opinion, proposed to travel the road all the way back to Munn _v._ Illinois, and deprive courts of the power to void rates simply because they deem the latter to be unreasonable. In a concurring opinion, written earlier in 1939 in Driscoll _v._ Edison Co., 307 U.S. 104, 122, Justice Frankfurter temporarily adopted a similar position; for therein he declared that "the only relevant function of law * * * [in rate controversies] is to secure observance of those procedural safeguards in the exercise of legislative powers, which are the historic foundations of due process." However, in his dissent in the Hope Gas Case (320 U.S. 591, 625), he disassociated himself from this proposal, and asserted that "it was decided [more than fifty years ago] that the final say under the Constitution lies with the judiciary." [220] Federal Power Commission _v._ Hope Gas Co., 320 U.S. 591, 602 (1944). [221] Federal Power Comm. _v._ Hope Gas Co., 320 U.S. 591, 603 (1944), citing Chicago & Grand Trunk Ry. Co. _v._ Wellman, 143 U.S. 339, 345-346 (1892); Missouri ex rel. Southwestern Bell Teleph. Co. _v._ Public Service Commission, 262 U.S. 276, 291 (1923). [222] For this reason there is presented below a survey of the formulas, utilization of which was hitherto deemed essential if due process requirements were to be satisfied. (1) Fair Value.--On the premise that a utility is entitled to demand a rate schedule that will yield a "fair return upon the value" of the property which it employs for public convenience, the Court in 1898, in Smyth _v._ Ames (169 U.S. 466, 546-547), held that determination of such value necessitated consideration of at least such factors as "the original cost of construction, the amount expended in permanent improvements, the amount and market value of * * * [the utility's] bonds and stock, the present as compared with the original cost of construction, [replacement cost], the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses." (2) Reproduction Cost.--Prior to the demise in 1944 of the Smyth _v._ Ames fair value formula, two of the components thereof were accorded special emphasis, with the second quickly surpassing the first in terms of the measure of importance attributed to it. These were: (1) the actual cost of the property ("the original cost of construction together with the amount expended in permanent improvements") and (2) reproduction cost ("the present as compared with the original cost of construction"). If prices did not fluctuate through the years, the controversy which arose over the application of reproduction cost in preference to original cost would have been reduced to a war of words; for results obtained by reliance upon either would have been identical. The instability in the price structure, however, presented the courts with a dilemma. If rate-making is attempted at a time of declining prices, valuation on the basis of present or reproduction cost will advantage the consumer or user, and disadvantage the utility. On the other hand, if the original cost of construction is employed, the benefits are redistributed, with the consumer becoming the loser. Similarly, when rates are fixed at a time of rising prices, reliance upon reproduction cost to the exclusion of original cost will produce results satisfactory to the utility and undesirable to the public, and vice versa. Notwithstanding the admonition of Smyth _v._ Ames that original cost, no less than reproduction cost, was to be considered in determining value, the Court, in the years which intervened between 1898 and 1944, wavered only slightly in its preference for the reproduction cost formula, and moderated its application thereof only in part whenever periods of rising or sustained high prices appeared to require such deviation in behalf of consumer interests. As examples of the varied application by the Court of the reproduction cost formula, the following cases are significant: San Diego Land and Town Co. _v._ National City, 174 U.S. 739, 757 (1899); San Diego Land & Town Co. _v._ Jasper, 189 U.S. 439, 443 (1903); Willcox _v._ Consolidated Gas Co., 212 U.S. 19, 52 (1909); Minnesota Rate Cases, 230 U.S. 352 (1913); Galveston Electric Co. _v._ Galveston, 258 U.S. 388, 392 (1922); Missouri ex rel. Southwestern Bell Teleph. Co. _v._ Public Service Commission, 262 U.S. 276 (1923); Bluefield Waterworks & Improv. Co. _v._ Pub. Serv. Comm., 262 U.S. 679 (1923); Georgia R. & Power Co. _v._ Railroad Comm., 262 U.S. 625, 630 (1923); McCardle _v._ Indianapolis Water Co., 272 U.S. 400 (1926); St. Louis & O'Fallon Ry. _v._ United States, 279 U.S. 461 (1929). (3) Prudent Investment (versus Reproduction Cost).--This method of valuation, which was championed by Justice Brandeis in a separate opinion filed in Southwestern Bell Teleph. Co. _v._ Pub. Serv. Comm. (262 U.S. 276, 291-292, 302, 306-307 (1923)), was defined by him as follows: "The compensation which the Constitution guarantees an opportunity to earn is the reasonable cost of conducting the business. Cost includes not only operating expenses, but also capital charges. Capital charges cover the allowance, by way of interest, for the use of the capital, * * *; the allowance for the risk incurred; and enough more to attract capital. * * * Where the financing has been proper, the cost to the utility of the capital, required to construct, equip and operate its plant, should measure the rate of return which the Constitution guarantees opportunity to earn." Advantages to be derived from "adoption of the amount prudently invested as the rate base and the amount of the capital charge as the measure of the rate of return" would, according to Justice Brandeis, be nothing less than the attainment of a "basis for decision which is certain and stable. The rate base would be ascertained as a fact, not determined as a matter of opinion. It would not fluctuate with the market price of labor, or materials, or money. * * *" As a method of valuation, the prudent investment theory was not accorded any acceptance until the depression of the 1930's. The sharp decline in prices which occurred during this period doubtless contributed to the loss of affection for reproduction cost; and in Los Angeles Gas Co. _v._ R.R. Comm'n., 289 U.S. 287 (1933) and R.R. Comm'n. _v._ Pacific Gas Co., 302 U.S. 388, 399, 405 (1938) the Court upheld respectively a valuation from which reproduction cost had been excluded and another in which historical cost served as the rate base. Later, in 1942, when in Power Comm'n. _v._ Nat. Gas Pipeline Co., 315 U.S. 575, the Court further emphasized its abandonment of the reproduction cost factor, there developed momentarily the prospect that prudent investment might be substituted. This possibility was quickly negatived, however, by the Hope Gas Case (320 U.S. 591 (1944)) which dispensed with the necessity of relying upon any formula for the purpose of fixing valid rates. (4) Depreciation.--No less indispensable to the determination of the fair value mentioned in Smyth _v._ Ames was the amount of depreciation to be allowed as a deduction from the measure of cost employed, whether the latter be actual cost, reproduction cost, or any other form of cost determination. Although not mentioned in Smyth _v._ Ames, the Court gave this item consideration in Knoxville _v._ Knoxville Water Co., 212 U.S. 1, 9-10 (1909); but notwithstanding its early recognition as an allowable item of deduction in determining value, depreciation continued to be the subject of controversy arising out of the difficulty of ascertaining it and of computing annual allowances to cover the same. Indicative of such controversy has been the disagreement as to whether annual allowances granted shall be in such amount as will permit the replacement of equipment at current costs; i.e., present value, or at original cost. In the Hope Gas Case, 320 U.S. 591, 606 (1944), the Court reversed United R. & Electric Co. _v._ West, 280 U.S. 234, 253-254 (1930), insofar as the latter holding rejected original cost as the basis of annual depreciation allowances. (5) Going Concern Value and Good Will.--Whether or not intangibles were to be included in valuation was not passed upon in Smyth _v._ Ames; but shortly thereafter, in Des Moines Gas Co. _v._ Des Moines, 238 U.S. 153, 165 (1915), the Court declared it to be self-evident "that there is an element of value in an assembled and established plant, doing business and earning money, over one not thus advanced, * * * [and that] this element of value is a property right, and should be considered in determining the value of the property, upon which the owner has a right to make a fair return * * *." Generally described as going concern value, this element has never been precisely defined by the Court, and the latter has accordingly been plagued by the difficulty of determining its worth. In its latest pronouncement on the subject, uttered in Power Comm'n. _v._ Nat. Gas Pipeline Co., 315 U.S. 575, 589 (1942), the Court denied that there is any "constitutional requirement that going concern value, even when it is an appropriate element to be included in a rate base, must be separately stated and appraised as such * * * valuations for rate purposes of a business assembled as a whole * * * [have often been] sustained without separate appraisal of the going concern element. * * * When that has been done, the burden rests on the regulated company to show that this item has neither been adequately covered in the rate base nor recouped from prior earnings of the business." Franchise value and good will, on the other hand, have been consistently excluded from valuation; the latter presumably because a utility invariably enjoys a monopoly and consumers have no choice in the matter of patronizing it. The latter proposition has been developed in the following cases: Willcox _v._ Consolidated Gas Co., 212 U.S. 19 (1909); Des Moines Gas Co. _v._ Des Moines, 238 U.S. 153, 163-164 (1915); Galveston Electric Co. _v._ Galveston, 258 U.S. 388 (1922); Los Angeles Gas & E. Corp. _v._ Railroad Commission, 289 U.S. 287, 313 (1933). (6) Salvage Value.--It is not constitutional error to disregard theoretical reproduction cost for a plant which "no responsible person would think of reproducing." Accordingly, where, due to adverse conditions, a street-surface railroad has lost all value except for scrap or salvage, it was permissible for a commission, as the Court held in Market St. R. Co. _v._ Comm'n., 324 U.S. 548, 562, 564 (1945), to use as a rate base the price at which the utility offered to sell its property to a citizen. Moreover, the Commission's order was not invalid even though under the prescribed rate the utility would operate at a loss; for the due process cannot be invoked to protect a public utility against business hazards, such as the loss of, or failure to obtain, patronage. On the other hand, in the case of a water company whose franchise has expired (Denver _v._ Denver Union Water Co., 246 U.S. 178 (1918)), but where there is no other source of supply, its plant should be valued as actually in use rather than at what the property would bring for some other use in case the city should build its own plant. (7) Past Losses And Gains.--"The Constitution [does not] require that the losses of * * * [a] business in one year shall be restored from future earnings by the device of capitalizing the losses and adding them to the rate base on which a fair return and depreciation allowance is to be earned." Power Comm'n. _v._ Nat. Gas Pipeline Co., 315 U.S. 575, 590 (1942). Nor can past losses be used to enhance the value of the property to support a claim that rates for the future are confiscatory (Galveston Electric Co. _v._ Galveston, 258 U.S. 388 (1922)), any more than profits of the past can be used to sustain confiscatory rates for the future (Newton _v._ Consolidated Gas Co., 258 U.S. 165, 175 (1922); Public Utility Commissioners _v._ New York Teleg. Co., 271 U.S. 23, 31-32 (1926)). [223] Atlantic Coast Line R. Co. _v._ North Carolina Corp. Commission, 206 U.S. 1, 19 (1907), citing Chicago, B.& Q.R. Co. _v._ Iowa, 94 U.S. 155 (1877). _See also_ Prentis _v._ Atlantic Coast Line Co., 211 U.S. 210 (1908); Denver & R.G.R. Co. _v._ Denver, 250 U.S. 241 (1919). [224] Chicago & G.T.R. Co. _v._ Wellman, 143 U.S. 339, 344 (1892); Mississippi R. Commission _v._ Mobile & O.R. Co., 244 U.S. 388, 391 (1917). _See also_ Missouri P.R. Co. _v._ Nebraska, 217 U.S. 196 (1910); Nashville, C. & St. L.R. Co. _v._ Walters, 294 U.S. 405, 415 (1935). [225] Cleveland Electric Ry. Co. _v._ Cleveland, 204 U.S. 116 (1907). [226] Detroit United Railway Co. _v._ Detroit, 255 U.S. 171 (1921). _See also_ Denver _v._ New York Trust Co., 229 U.S. 123 (1913). [227] Los Angeles _v._ Los Angeles Gas & Electric Corp., 251 U.S. 32 (1919). [228] Newburyport Water Co. _v._ Newburyport, 193 U.S. 561 (1904). _See also_ Skaneateles Waterworks Co. _v._ Skaneateles, 184 U.S. 354 (1902); Helena Waterworks Co. _v._ Helena, 195 U.S. 383 (1904); Madera Waterworks _v._ Madera, 228 U.S. 454 (1913). [229] Western Union Teleg. Co. _v._ Richmond, 224 U.S. 160 (1912). [230] Pierce Oil Corp. _v._ Phoenix Ref Co., 259 U.S. 125 (1922). [231] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548, 558 (1914). _See also_ Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 255 (1897); Chicago, B. & Q.R. Co. _v._ Illinois ex rel. Grimwood, 200 U.S. 561, 591-592 (1906); New Orleans Public Service, Inc. _v._ New Orleans, 281 U.S. 682 (1930). [232] Consumers' Co. _v._ Hatch, 224 U.S. 148 (1912). [233] Panhandle Eastern Pipe Line Co. _v._ State Highway Commission, 294 U.S. 613 (1935). [234] New Orleans Gas Light Co. _v._ Drainage Commission, 197 U.S. 453 (1905). [235] Norfolk & S. Turnpike Co. _v._ Virginia, 225 U.S. 264 (1912). [236] International Bridge Co. _v._ New York, 254 U.S. 126 (1920). [237] Chicago, B. & Q.R. Co. _v._ Nebraska, 170 U.S. 57 (1898). [238] Chicago, B. & Q.R. Co. _v._ Illinois ex rel. Grimwood, 200 U.S. 561 (1906); Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915); Lake Shore & M.S.R. Co. _v._ Clough, 242 U.S. 375 (1917). [239] Pacific Gas & Electric Co. _v._ Police Ct., 251 U.S. 22 (1919). [240] Chicago, St. P., M. & O.R. Co. _v._ Holmberg, 282 U.S. 162 (1930). [241] Nashville, C. & St. L.R. Co. _v._ Walters, 294 U.S. 405 (1935). _See also_ Lehigh Valley R. Co. _v._ Public Utility Comrs., 278 U.S. 24 (1928). [242] United Fuel Gas Co. _v._ Railroad Commission, 278 U.S. 300, 308-309 (1929). _See also_ New York ex rel. Woodhaven Gas Light Co. _v._ Public Service Commission, 269 U.S. 244 (1925); New York ex rel. New York & O. Gas Co. _v._ McCall, 245 U.S. 345 (1917). [243] Missouri P.R. Co. _v._ Kansas ex rel. Taylor, 216 U.S. 262 (1910); Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S. 603 (1917); Ft. Smith Light & Traction Co. _v._ Bourland, 267 U.S. 330 (1925). [244] Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S. 603, 607 (1917); Brooks-Scanlon Co. _v._ Railroad Commission, 251 U.S. 396 (1920); Railroad Commission _v._ Eastern Texas R. Co., 264 U.S. 79 (1924); Broad River Power Co. _v._ South Carolina ex rel. Daniel, 281 U.S. 537 (1930). [245] Atchison, T. & S.F.R. Co. _v._ Railroad Commission, 283 U.S. 380, 394-395 (1931). [246] Minneapolis & St. L.R. Co. _v._ Minnesota ex rel. Railroad & W. Commission, 193 U.S. 53 (1904). [247] Gladson _v._ Minnesota, 166 U.S. 427 (1897). [248] Missouri P.R. Co. _v._ Kansas ex rel. Taylor, 216 U.S. 262 (1910). [249] Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S. 603 (1917). [250] Lake Erie & W.R. Co. _v._ State Public Utilities Commission ex rel. Cameron, 249 U.S. 422 (1919); Western & A.R. Co. _v._ Georgia Public Service Commission, 267 U.S. 493 (1925). [251] Alton R. Co. _v._ Illinois Comm'n, 305 U.S. 548 (1939). [252] Missouri P.R. Co. _v._ Nebraska, 217 U.S. 196 (1910). [253] Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S. 603, 607 (1917). [254] Great Northern R. Co. _v._ Minnesota ex rel. Railroad & Warehouse Commission, 238 U.S. 340 (1915); Great Northern R. Co. _v._ Cahill, 253 U.S. 71 (1920). [255] Chicago, M. & St. P.R. Co. _v._ Wisconsin, 238 U.S. 491 (1915). [256] Washington ex rel. Oregon R. & N. Co. _v._ Fairchild, 224 U.S. 510, 528-529 (1912). _See also_ Michigan C.R. Co. _v._ Michigan Railroad Commission, 236 U.S. 615 (1915); Seaboard Air Line R. Co. _v._ Railroad Commission, 240 U.S. 324, 327 (1916). [257] Louisville & N.R. Co. _v._ Central Stockyards Co., 212 U.S. 132 (1909). [258] Michigan C.R. Co. _v._ Michigan Railroad Commission, 236 U.S. 615 (1915). [259] Chicago, M. & St. P.R. Co. _v._ Iowa, 233 U.S. 334 (1914). [260] Chicago, M. & St. P.R. Co. _v._ Minneapolis C. & C. Asso., 247 U.S. 490 (1918). Nor are railroads denied due process when they are forbidden to exact a greater charge for a shorter distance than for a longer distance. Louisville & N.R. Co. _v._ Kentucky, 183 U.S. 503, 512 (1902); Missouri P.R. Co. _v._ McGrew Coal Co., 244 U.S. 191 (1917). [261] Wadley Southern R. Co. _v._ Georgia, 235 U.S. 651 (1915). [262] Richmond, F. & P.R. Co. _v._ Richmond, 96 U.S. 521 (1878). [263] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548 (1914). [264] Great Northern R. Co. _v._ Minnesota ex rel. Clara City, 246 U.S. 434 (1918). [265] Denver & R.G.R. Co. _v._ Denver, 250 U.S. 241 (1919). [266] Nashville, C. & St. L.R. Co. _v._ White, 278 U.S. 456 (1929). [267] Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96 (1888). [268] Chicago, R.I. & P.R. Co. _v._ Arkansas, 219 U.S. 453 (1911); St. Louis, I.M. & S.R. Co. _v._ Arkansas, 240 U.S. 518 (1916); Missouri P.R. Co. _v._ Norwood, 283 U.S. 249 (1931). [269] Atlantic Coast Line R. Co. _v._ Georgia, 234 U.S. 280 (1914). [270] Erie R. Co. _v._ Solomon, 237 U.S. 427 (1915). [271] New York, N.H. & H.R. Co. _v._ New York, 165 U.S. 628 (1897). [272] Chicago & N.W.R. Co. _v._ Nye Schneider Fowler Co., 260 U.S. 35 (1922). _See also_ Yazoo & M.V.R. Co. _v._ Jackson Vinegar Co., 226 U.S. 217 (1912); _Cf._ Adams Express Co. _v._ Croninger, 226 U.S. 491 (1913). [273] Atlantic Coast Line R. Co. _v._ Glenn, 239 U.S. 388 (1915). [274] St. Louis & S.F.R. Co. _v._ Mathews, 165 U.S. 1 (1897). [275] Chicago & N.W.R. Co. _v._ Nye Schneider Fowler Co., 260 U.S. 35 (1922). [276] Kansas City Southern R. Co. _v._ Anderson, 233 U.S. 325 (1914). [277] St. Louis, I.M. & S.R. Co. _v._ Wynne, 224 U.S. 354 (1912). [278] Chicago, M. & St. P.R. Co. _v._ Polt, 232 U.S. 165 (1914). [279] Missouri P.R. Co. _v._ Tucker, 230 U.S. 340 (1913). [280] St. Louis, I.M. & S.R. Co. _v._ Williams, 251 U.S. 63, 67 (1919). [281] Missouri P.R. Co. _v._ Humes, 115 U.S. 512 (1885); Minneapolis & St. L.R. Co. _v._ Beckwith, 129 U.S. 26 (1889). [282] Chicago, B. & Q.R. Co. _v._ Cram, 228 U.S. 70 (1913). [283] Southwestern Teleg. & Teleph. Co. _v._ Danaher, 238 U.S. 482 (1915). [284] New Orleans Debenture Redemption Co. _v._ Louisiana, 180 U.S. 320 (1901). [285] Lake Shore & M.S.R. Co. _v._ Smith, 173 U.S. 684, 698 (1899). [286] National Council _v._ State Council, 203 U.S. 151 (1906). [287] Munday _v._ Wisconsin Trust Co., 252 U.S. 499 (1920). [288] State Farm Ins. Co. _v._ Duel, 324 U.S. 154 (1945). [289] Asbury Hospital _v._ Cass County, 326 U.S. 207 (1945). [290] Nebbia _v._ New York, 291 U.S. 502, 527-528 (1934). [291] Smiley _v._ Kansas, 196 U.S. 447 (1905). _See_ Waters-Pierce Oil Co. _v._ Texas, 212 U.S. 86 (1909); National Cotton Oil Co. _v._ Texas, 197 U.S. 115 (1905), also upholding antitrust laws. [292] International Harvester Co. _v._ Missouri, 234 U.S. 199 (1914). _See also_ American Seeding Machine Co. _v._ Kentucky, 236 U.S. 660 (1915). [293] Grenada Lumber Co. _v._ Mississippi, 217 U.S. 433 (1910). [294] Aikens _v._ Wisconsin, 195 U.S. 194 (1904). [295] Central Lumber Co. _v._ South Dakota, 226 U.S. 157 (1912). [296] Fairmont Creamery Co. _v._ Minnesota, 274 U.S. 1 (1927). [297] Old Dearborn Distributing Co. _v._ Seagram-Distillers Corp., 299 U.S. 183 (1936); The Pep Boys _v._ Pyroil Sales Co., 299 U.S. 198 (1936). [298] Schmidinger _v._ Chicago, 226 U.S. 578, 588 (1913), citing McLean _v._ Arkansas, 211 U.S. 539, 550 (1909). [299] Merchants Exch. _v._ Missouri ex rel. Barker, 248 U.S. 365 (1919). [300] Hauge _v._ Chicago, 299 U.S. 387 (1937). [301] Lemieux _v._ Young, 211 U.S. 489 (1909); Kidd, D. & P. Co. _v._ Musselman Grocer Co., 217 U.S. 461 (1910). [302] Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935). [303] Schmidinger _v._ Chicago, 226 U.S. 578 (1913). [304] Burns Baking Co. _v._ Bryan, 264 U.S. 504 (1924). [305] Petersen Baking Co. _v._ Bryan, 290 U.S. 570 (1934). [306] Armour & Co. _v._ North Dakota, 240 U.S. 510 (1916). [307] Heath & M. Mfg. Co. _v._ Worst, 207 U.S. 338 (1907); Corn Products Ref. Co. _v._ Eddy, 249 U.S. 427 (1919); National Fertilizer Asso. _v._ Bradley, 301 U.S. 178 (1937). [308] Advance-Rumely Thresher Co. _v._ Jackson, 287 U.S. 283 (1932). [309] Hall _v._ Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell _v._ Sioux Falls Stock Yards Co., 242 U.S. 559 (1917); Merrick _v._ Halsey & Co., 242 U.S. 568 (1917). [310] Booth _v._ Illinois, 184 U.S. 425 (1902). [311] Otis _v._ Parker, 187 U.S. 606 (1903). [312] Brodnax _v._ Missouri, 219 U.S. 285 (1911). [313] House _v._ Mayes, 219 U.S. 270 (1911). [314] Rast _v._ Van Deman & L. Co., 240 U.S. 342 (1916); Tanner _v._ Little, 240 U.S. 369 (1916); Pitney _v._ Washington, 240 U.S. 387 (1916). [315] Noble State Bank _v._ Haskell, 219 U.S. 104 (1911); Shallenberger _v._ First State Bank, 219 U.S. 114 (1911); Assaria State Bank _v._ Dolley, 219 U.S. 121 (1911); Abie State Bank _v._ Bryan, 282 U.S. 765 (1931). [316] Provident Inst. for Savings _v._ Malone, 221 U.S. 660 (1911); Anderson National Bank _v._ Luckett, 321 U.S. 233 (1944). When a bank conservator appointed pursuant to a new statute has all the functions of a receiver under the old law, one of which is the enforcement on behalf of depositors of stockholders' liability, which liability the conservator can enforce as cheaply as could a receiver appointed under the pre-existing statute, it cannot be said that the new statute, in suspending the right of a depositor to have a receiver appointed, arbitrarily deprives a depositor of his remedy or destroys his property without due process of law. The depositor has no property right in any particularly form of remedy.--Gibbes _v._ Zimmerman, 290 U.S. 326 (1933). [317] Doty _v._ Love, 295 U.S. 64 (1935). [318] Farmers & M. Bank _v._ Federal Reserve Bank, 262 U.S. 649 (1923). [319] Griffith _v._ Connecticut, 218 U.S. 563 (1910). [320] Mutual Loan Co. _v._ Martell, 222 U.S. 225 (1911). [321] La Tourette _v._ McMaster, 248 U.S. 465 (1919); Stipcich _v._ Metropolitan L. Ins. Co., 277 U.S. 311, 320 (1928). [322] German Alliance Ins. Co. _v._ Lewis, 233 U.S. 389 (1914). [323] O'Gorman and Young _v._ Hartford Insur. Co., 282 U.S. 251 (1931). [324] Nutting _v._ Massachusetts, 185 U.S. 553, 556 (1902), distinguishing Allgeyer _v._ Louisiana, 165 U.S. 578 (1897). _See also_ Hooper _v._ California, 155 U.S. 648 (1895). [325] Daniel _v._ Family Ins. Co., 336 U.S. 220 (1949). [326] Osborn _v._ Ozlin, 310 U.S. 53, 68-69 (1940). Dissenting from the conclusion, Justice Roberts declared that the plain effect of the Virginia law is to compel a nonresident to pay a Virginia resident for services which the latter does not in fact render. [327] California Auto. Assn. _v._ Maloney, 341 U.S. 105 (1951). [328] Allgeyer _v._ Louisiana, 165 U.S. 578 (1897). [329] New York L. Ins. Co. _v._ Dodge, 246 U.S. 357 (1918). [330] National Union F. Ins. Co. _v._ Wanberg, 260 U.S. 71 (1922). [331] Hartford Acci. & Indem. Co. _v._ Nelson (N.O.) Mfg. Co., 291 U.S. 352 (1934). [332] Merchants Mut. Auto Liability Ins. Co. _v._ Smart, 267 U.S. 126 (1925). [333] Orient Ins. Co. _v._ Daggs, 172 U.S. 557 (1899). [334] Hoopeston Canning Co. _v._ Cullen, 318 U.S. 313 (1943). [335] German Alliance Ins. Co. _v._ Hale, 219 U.S. 307 (1911). _See also_ Carroll _v._ Greenwich Ins. Co., 199 U.S. 401 (1905). [336] Life & C. Ins. Co. _v._ McCray, 291 U.S. 566 (1934). [337] Northwestern Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243 (1906). [338] Whitfield ex rel. Hadley _v._ Aetna L. Ins. Co., 205 U.S. 489 (1907). [339] Polk _v._ Mutual Reserve Fund Life Association, 207 U.S. 310 (1907). [340] Neblett _v._ Carpenter, 305 U.S. 297 (1938). [341] Brazee _v._ Michigan, 241 U.S. 340 (1916).--With four Justices dissenting, the Court, in Adams _v._ Tanner, 244 U.S. 590 (1917), "struck down a State law absolutely prohibiting maintenance of private employment agencies." Commenting on the "constitutional philosophy" thereof in Lincoln Union _v._ Northwestern Co., 335 U.S. 525, 535 (1949), Justice Black stated that Olsen _v._ Nebraska, 313 U.S. 236 (1941), (_see_ p. 997) "clearly undermined Adams _v._ Tanner." [342] Liggett (Louis K.) Co. _v._ Baldridge, 278 U.S. 105 (1928). [343] McNaughton _v._ Johnson, 242 U.S. 344, 349 (1917). _See also_ Dent _v._ West Virginia, 129 U.S. 114 (1889); Hawker _v._ New York, 170 U.S. 189 (1898); Reetz _v._ Michigan, 188 U.S. 505 (1903); Watson _v._ Maryland, 218 U.S. 173 (1910). [344] Collins _v._ Texas, 223 U.S. 288 (1912); Hayman _v._ Galveston, 273 U.S. 414 (1927). [345] Semler _v._ Oregon State Dental Examiners, 294 U.S. 608, 611 (1935). _See also_ Douglas _v._ Noble, 261 U.S. 165 (1923); Graves _v._ Minnesota, 272 U.S. 425, 427 (1926). [346] Olsen _v._ Smith, 195 U.S. 332 (1904). [347] Nashville, C. &. St. L.R. Co. _v._ Alabama, 128 U.S. 96 (1888). [348] Smith _v._ Texas, 233 U.S. 630 (1914). [349] Western Turf Asso. _v._ Greenberg, 204 U.S. 359 (1907). [350] Cargill (W.W.) Co. _v._ Minnesota ex rel. Railroad & W. Commission, 180 U.S. 452 (1901). [351] Lehon _v._ Atlanta, 242 U.S. 53 (1916). [352] Gundling _v._ Chicago, 177 U.S. 183, 185 (1900). [353] Bourjois, Inc. _v._ Chapman, 301 U.S. 183 (1937). [354] Weller _v._ New York, 268 U.S. 319 (1925). [355] Packer Corp. _v._ Utah, 285 U.S. 105 (1932). [356] Halter _v._ Nebraska, 205 U.S. 34 (1907). [357] McCloskey _v._ Tobin, 252 U.S. 107 (1920). [358] Natal _v._ Louisiana, 139 U.S. 621 (1891). [359] Murphy _v._ California, 225 U.S. 623 (1912). [360] Rosenthal _v._ New York, 226 U.S. 260 (1912). [361] Thompson _v._ Consolidated Gas Utilities Corp., 300 U.S. 55, 76-77 (1937), citing Ohio Oil Co. _v._ Indiana (No. 1), 177 U.S. 100 (1900); Lindsley _v._ Natural Carbonic Gas Co., 220 U.S. 61 (1911); Oklahoma _v._ Kansas Natural Gas Co., 221 U.S. 229 (1911). [362] Champlin Ref. Co. _v._ Corporation Commission, 286 U.S. 210 (1932). [363] Railroad Commission _v._ Oil Co., 310 U.S. 573 (1940). _See also_ R.R. Commission _v._ Oil Co., 311 U.S. 570 (1941); R.R. Commission _v._ Humble Oil & Refining Co., 311 U.S. 578 (1941). [364] Thompson _v._ Consolidated Gas Utilities Corp., 300 U.S. 55 (1937). [365] Cities Service Co. _v._ Peerless Co., 340 U.S. 179 (1950); Phillips Petroleum Co. _v._ Oklahoma, ibid., 190 (1950). [366] Walls _v._ Midland Carbon Co., 254 U.S. 300 (1920). _See also_ Henderson Co. _v._ Thompson, 300 U.S. 258 (1937). [367] Bandini Petroleum Co. _v._ Superior Ct., 284 U.S. 8 (1931). [368] Gant _v._ Oklahoma City, 289 U.S. 98 (1933). [369] Pennsylvania Coal Co. _v._ Mahon, 260 U.S. 393 (1922). [370] Hudson County Water Co. _v._ McCarter, 209 U.S. 349, 356-357 (1908). [371] Miller _v._ Schoene, 276 U.S. 272, 277, 279 (1928). [372] Sligh _v._ Kirkwood, 237 U.S. 52 (1915). [373] Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422, 426 (1936). [374] Manchester _v._ Massachusetts, 139 U.S. 240 (1891); Geer _v._ Connecticut, 161 U.S. 519 (1896). [375] Miller _v._ McLaughlin, 281 U.S. 261, 264 (1930). [376] Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936). [377] Geer _v._ Connecticut, 161 U.S. 519 (1896). [378] Silz _v._ Hesterberg, 211 U.S. 31 (1908). [379] Reinman _v._ Little Rock, 237 U.S. 171 (1915). [380] Hadacheck _v._ Sebastian, 239 U.S. 394 (1915). [381] Fischer _v._ St. Louis, 194 U.S. 361 (1904). [382] Reinman _v._ Little Rock, 237 U.S. 171 (1915). [383] Bacon _v._ Walker, 204 U.S. 311 (1907). [384] Northwestern Laundry Co. _v._ Des Moines, 239 U.S. 486 (1916). For a case embracing a rather special set of facts, _see_ Dobbins _v._ Los Angeles, 195 U.S. 223 (1904). [385] Welch _v._ Swasey, 214 U.S. 91 (1909). [386] Euclid _v._ Ambler Realty Co., 272 U.S. 365 (1926); Zahn _v._ Board of Public Works, 274 U.S. 325 (1927); Nectaw _v._ Cambridge, 277 U.S. 183 (1928); Cusack (Thomas) Co. _v._ Chicago, 242 U.S. 526 (1917); St. Louis Poster Advertising Co. _v._ St. Louis, 249 U.S. 269 (1919). [387] Washington ex rel. Seattle Title Trust Co. _v._ Roberage, 278 U.S. 116 (1928). [388] Eubank _v._ Richmond, 226 U.S. 137 (1912). [389] Gorieb _v._ Fox, 274 U.S. 603 (1927). [390] Buchanan _v._ Warley, 245 U.S. 60 (1917). [391] Pierce Oil Corp. _v._ Hope, 248 U.S. 498 (1919). [392] Standard Oil Co. _v._ Marysville, 279 U.S. 582 (1929). [393] Barbier _v._ Connolly, 113 U.S. 27 (1885); Soon Hing _v._ Crowley, 113 U.S. 703 (1885). [394] Maguire _v._ Reardon, 255 U.S. 271 (1921). [395] Queenside Hills Co. _v._ Saxl, 328 U.S. 80 (1946). [396] Compagnie Francaise de Navigation à Vapeur _v._ Louisiana State Board of Health, 186 U.S. 380 (1902). [397] Jacobson _v._ Massachusetts, 197 U.S. 11 (1905); New York ex rel. Lieberman _v._ Van De Carr, 199 U.S. 552 (1905). [398] Perley _v._ North Carolina, 249 U.S. 510 (1919). [399] California Reduction Co. _v._ Sanitary Reduction Works, 199 U.S. 306 (1905). [400] Hutchinson _v._ Valdosta, 227 U.S. 303 (1913). [401] Sligh _v._ Kirkwood, 237 U.S. 52, 59-60 (1915). [402] Powell _v._ Pennsylvania, 127 U.S. 678 (1888); Magnano (A.) Co. _v._ Hamilton, 292 U.S. 40 (1934). [403] North American Cold Storage Co. _v._ Chicago, 211 U.S. 306 (1908). [404] Adams _v._ Milwaukee, 228 U.S. 572 (1913). [405] Baccus _v._ Louisiana, 232 U.S. 334 (1914). [406] Roschen _v._ Ward, 279 U.S. 337 (1929). [407] Minnesota ex rel. Whipple _v._ Martinson, 256 U.S. 41, 45 (1921). [408] Hutchinson Ice Cream Co. _v._ Iowa, 242 U.S. 153 (1916). [409] Hebe Co. _v._ Shaw, 248 U.S. 297 (1919). [410] Price _v._ Illinois, 238 U.S. 446 (1915). [411] Sage Stores _v._ Kansas, 323 U.S. 32 (1944). [412] Weaver _v._ Palmer Bros Co., 270 U.S. 402 (1926). [413] Ah Sin _v._ Wittman, 198 U.S. 500 (1905). [414] Marvin _v._ Trout, 199 U.S. 212 (1905). [415] Stone _v._ Mississippi ex rel. Harris, 101 U.S. 814 (1880); Douglas _v._ Kentucky, 168 U.S. 488 (1897). [416] L'Hote _v._ New Orleans, 177 U.S. 587 (1900). [417] Petit _v._ Minnesota, 177 U.S. 164 (1900). [418] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25, 33 (1878); Mugler _v._ Kansas, 123 U.S. 623 (1887); Kidd _v._ Pearson, 128 U.S. 1 (1888); Purity Extract & Tonic Co. _v._ Lynch, 226 U.S. 192 (1912); James Clark Distilling Co. _v._ Western Maryland R. Co., 242 U.S. 311 (1917); Barbour _v._ Georgia, 249 U.S. 454 (1919). [419] Mugler _v._ Kansas, 123 U.S. 623, 671 (1887). [420] Hawes _v._ Georgia, 258 U.S. 1 (1922); Van Oster _v._ Kansas, 272 U.S. 465 (1926). [421] Stephenson _v._ Binford, 287 U.S. 251 (1932). [422] Stanley _v._ Public Utilities Commission, 295 U.S. 76 (1935). [423] Stephenson _v._ Binford, 287 U.S. 251 (1932). [424] Michigan Public Utilities Commission _v._ Duke, 266 U.S. 570 (1925). [425] Frost _v._ Railroad Commission, 271 U.S. 583 (1926); Smith _v._ Cahoon, 283 U.S. 553 (1931). [426] Bradley _v._ Pub. Util. Comm'n., 289 U.S. 92 (1933). [427] Sproles _v._ Binford, 286 U.S. 374 (1932). [428] Railway Express _v._ New York, 336 U.S. 106 (1949). [429] Reitz _v._ Mealey, 314 U.S. 33 (1941). [430] Young _v._ Masci, 289 U.S. 253 (1933). [431] Ex parte Poresky, 290 U.S. 30 (1933). _See also_ Packard _v._ Banton, 264 U.S. 140 (1924); Sprout _v._ South Bend, 277 U.S. 163 (1928); Hodge Drive-It-Yourself Co. _v._ Cincinnati, 284 U.S. 335 (1932); Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932). [432] Irving Trust Co. _v._ Day, 314 U.S. 556, 564 (1942). [433] Demorest _v._ City Bank Co., 321 U.S. 36, 47-48 (1944). [434] Connecticut Ins. Co. _v._ Moore, 333 U.S. 541 (1948). Justice Jackson and Douglas dissented on the ground that New York is attempting to escheat unclaimed funds not located either actually or constructively in New York and which are the property of beneficiaries who may never have been citizens or residents of New York. [435] 341 U.S. 428 (1951). [436] Snowden _v._ Hughes, 321 U.S. 1 (1944). [437] Angle _v._ Chicago, St. P.M. & O.R. Co., 151 U.S. 1 (1894). [438] Coombes _v._ Getz, 285 U.S. 434, 442, 448 (1932). [439] Gibbes _v._ Zimmerman, 290 U.S. 326, 332 (1933). [440] Shriver _v._ Woodbine Sav. Bank, 285 U.S. 467 (1932). [441] Chase Securities Corp. _v._ Donaldson, 325 U.S. 304, 315-316 (1945). [442] Sentell _v._ New Orleans & C.R. Co., 166 U.S. 698 (1897). [443] Soliah _v._ Heskin, 222 U.S. 522 (1912). [444] Trenton _v._ New Jersey, 262 U.S. 182 (1923). [445] Chicago _v._ Sturges, 222 U.S. 313 (1911). [446] Louisiana ex rel. Folsom Bros. _v._ New Orleans, 109 U.S. 285, 289 (1883). [447] Attorney General ex rel. Kies _v._ Lowrey, 199 U.S. 233 (1905). [448] Hunter _v._ Pittsburgh, 207 U.S. 161 (1907). [449] Stewart _v._ Kansas City, 239 U.S. 14 (1915). [450] Tonawanda _v._ Lyon, 181 U.S. 389 (1901); Cass Farm Co. _v._ Detroit, 181 U.S. 396 (1901). [451] Southwestern Oil Co. _v._ Texas, 217 U.S. 114, 119 (1910). [452] Citizens' Sav. & L. Asso. _v._ Topeka, 20 Wall. 655 (1875); Jones _v._ Portland, 245 U.S. 217 (1917); Green _v._ Frazier, 253 U.S. 233 (1920); Carmichael _v._ Southern Coal & Coke Co., 300 U.S. 644 (1937). [453] Milheim _v._ Moffat Tunnel Improv. Dist., 262 U.S. 710 (1923). [454] Jones _v._ Portland, 245 U.S. 217 (1917). [455] Green _v._ Frazier, 253 U.S. 233 (1920). [456] Nicchia _v._ New York, 254 U.S. 228 (1920). [457] Milheim _v._ Moffat Tunnel Improv. Dist, 262 U.S. 710 (1923). [458] Cochran _v._ Louisiana State Bd. of Ed., 281 U.S. 370 (1930). [459] Carmichael _v._ Southern Coal & Coke Co., 300 U.S. 644 (1937). [460] Fox _v._ Standard Oil Co., 294 U.S. 87, 99 (1935). [461] Stewart Dry Goods Co. _v._ Lewis, 294 U.S. 550 (1935). _See also_ Chapman _v._ Zobelein, 237 U.S. 135 (1915); Kelly _v._ Pittsburgh, 104 U.S. 78 (1881). [462] Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933); Carmichael _v._ Southern Coal & Coke Co., 300 U.S. 644 (1937). A taxpayer therefore cannot contest the imposition of an income tax on the ground that, in operation, it returns to his town less income tax than he and its other inhabitants pay.--Dane _v._ Jackson, 256 U.S. 589 (1921). [463] Stebbins _v._ Riley, 268 U.S. 137, 140, 141 (1925). [464] Cahen _v._ Brewster, 203 U.S. 543 (1906). [465] Keeney _v._ New York, 222 U.S. 525 (1912). [466] Salomon _v._ State Tax Commission, 278 U.S. 484 (1929). [467] Orr _v._ Gilman, 183 U.S. 278 (1902); Chanler _v._ Kelsey, 205 U.S. 466 (1907). [468] Nickel _v._ Cole, 256 U.S. 222, 226 (1921). [469] Coolidge _v._ Long, 282 U.S. 582 (1931). [470] Binney _v._ Long, 299 U.S. 280 (1936). [471] Whitney _v._ State Tax Com., 309 U.S. 530, 540(1940). [472] Welch _v._ Henry, 305 U.S. 134, 147 (1938). [473] Hoeper _v._ Tax Commission, 284 U.S. 206 (1931). [474] Welch _v._ Henry, 305 U.S. 134, 147-150 (1938). [475] Puget Sound Power & Light Co. _v._ Seattle, 291 U.S. 619 (1934). [476] New York, P. & N. Teleg. Co. _v._ Dolan, 265 U.S. 96 (1924). [477] Barwise _v._ Sheppard, 299 U.S. 33 (1936). [478] Nashville, O. & St. L. Ky. _v._ Browning, 310 U.S. 362 (1940). [479] Paddell _v._ New York, 211 U.S. 446 (1908). [480] Hagar _v._ Reclamation District, 111 U.S. 701 (1884). [481] Butters _v._ Oakland, 263 U.S. 162 (1923). [482] Missouri P.R. Co. _v._ Western Crawford Road Improv. Dist., 266 U.S. 187 (1924). _See also_ Roberts _v._ Richland Irrig. Co., 289 U.S. 71 (1933) in which it was also stated that an assessment to pay the general indebtedness of an irrigation district is valid, even though in excess of the benefits received. [483] Houck _v._ Little River Drainage Dist, 239 U.S. 254 (1915). [484] Road Improv. Dist. _v._ Missouri P.R. Co., 274 U.S. 188 (1927). [485] Kansas City Southern R. Co. _v._ Road Improv. Dist., 266 U.S. 379 (1924). [486] Louisville & N.R. Co. _v._ Barber Asphalt Pav. Co., 197 U.S. 430 (1905). [487] Myles Salt Co. _v._ Iberia & St. M. Drainage Dist., 239 U.S. 478 (1916). [488] Wagner _v._ Leser, 239 U.S. 207 (1915). [489] Charlotte Harbor & N.R. Co. _v._ Welles, 260 U.S. 8 (1922). [490] Union Refrigerator Transit Co. _v._ Kentucky, 199 U.S. 194, 204 (1905). _See also_ Louisville & J. Ferry Co. _v._ Kentucky, 188 U.S. 385 (1903). [491] Carstairs _v._ Cochran, 193 U.S. 10 (1904); Hannis Distilling Co. _v._ Baltimore, 216 U.S. 285 (1910); Frick _v._ Pennsylvania, 268 U.S. 473 (1925); Blodgett _v._ Silberman, 277 U.S. 1 (1928). [492] New York ex rel. New York, C. & H.R.R. Co. _v._ Miller, 202 U.S. 584 (1906). [493] Wheeling Steel Corp _v._ Fox, 298 U.S. 193, 209-210 (1936); Union Refrigerator Transit Co. _v._ Kentucky, 199 U.S. 194, 207 (1905); Johnson Oil Ref. Co. _v._ Oklahoma ex rel. Mitchell, 290 U.S. 158 (1933). [494] Robert L. Howard, State Jurisdiction to Tax Intangibles: A Twelve Year Cycle, 8 Missouri Law Review 155, 160-162 (1943); Ralph T. Rawlins, State Jurisdiction to Tax Intangibles: Some Modern Aspects, 18 Texas Law Review 296, 314-315 (1940). [495] Kirtland _v._ Hotchkiss, 100 U.S. 491, 498 (1879). [496] Savings & L. Soc. _v._ Multnomah County, 169 U.S. 421 (1898). [497] Bristol _v._ Washington County, 177 U.S. 133, 141 (1900). [498] Fidelity & C. Trust Co. _v._ Louisville, 245 U.S. 54 (1917). [499] Rogers _v._ Hennepin County, 240 U.S. 184 (1916). [500] Citizens Nat. Bank _v._ Durr, 257 U.S. 99, 109 (1921). [501] Hawley _v._ Maiden, 232 U.S. 1, 12 (1914). [502] First Bank Stock Corp. _v._ Minnesota, 301 U.S. 234, 241 (1937). [503] Schuylkill Trust Co. _v._ Pennsylvania, 302 U.S. 506 (1938). [504] Harvester Co. _v._ Dept. of Taxation, 322 U.S. 435 (1944). [505] Wisconsin Gas Co. _v._ United States, 322 U.S. 526 (1944). [506] New York ex rel. Hatch _v._ Reardon, 204 U.S. 152 (1907). [507] Graniteville Mfg. Co. _v._ Query, 283 U.S. 376 (1931). [508] Buck _v._ Beach, 206 U.S. 392 (1907). [509] Brooke _v._ Norfolk, 277 U.S. 27 (1928). [510] Greenough _v._ Tax Assessors, 331 U.S. 486, 496-497 (1947). [511] 277 U.S. 27 (1928). [512] 280 U.S. 83 (1929). [513] Senior _v._ Braden, 295 U.S. 422 (1985). [514] Stebbins _v._ Riley, 268 U.S. 137, 140-141 (1925). [515] 199 U.S. 194 (1905).--In dissenting in State Tax Commission _v._ Aldrich, 316 U.S. 174, 185 (1942), Justice Jackson asserted that a reconsideration of this principle had become timely. [516] 268 U.S. 473 (1925). _See also_ Treichler _v._ Wisconsin, 338 U.S. 251 (1949); City Bank Farmers Trust Co. _v._ Schnader, 293 U.S. 112 (1934). [517] 240 U.S. 625, 631 (1916).--A decision rendered in 1920 which is seemingly in conflict was Wachovia Bank & Trust Co. _v._ Doughton, 272 U.S. 567, in which North Carolina was prevented from taxing the exercise of a power of appointment through a will executed therein by a resident, when the property was a trust fund in Massachusetts created by the will of a resident of the latter State. One of the reasons assigned for this result was that by the law of Massachusetts the property involved was treated as passing from the original donor to the appointee. However, this holding was overruled in Graves _v._ Schmidlapp, 315 U.S. 657 (1942). [518] 233 U.S. 434 (1914). [519] Rhode Island Hospital Trust Co. _v._ Doughton, 270 U.S. 69 (1926). [520] 277 U.S. 1 (1928). [521] First National Bank _v._ Maine, 284 U.S. 312, 330-331 (1932). [522] 280 U.S. 204 (1930). [523] 188 U.S. 189 (1903). [524] 281 U.S. 586 (1930).--In dissenting, Justice Holmes observed that Wheeler _v._ Sohmer, 233 U.S. 434 (1914), previously mentioned, apparently joined Blackstone _v._ Miller on the "Index Expurgatorius." [525] 282 U.S. 1 (1930). [526] 284 U.S. 312 (1932). [527] 316 U.S. 174 (1942). [528] 307 U.S. 357, 363, 366-368, 372 (1939). [529] 308 U.S. 313 (1939). [530] 307 U.S. 383 (1939). [531] Ibid. 386. [532] 315 U.S. 657, 660, 661 (1942). [533] 4 Wheat. 316, 429 (1819). [534] 319 U.S. 94 (1943). [535] 306 U.S. 398 (1939). [536] Wheeling Steel Corp. _v._ Fox, 298 U.S. 193 (1936). _See also_ Memphis Gas Co. _v._ Beeler, 315 U.S. 649, 652 (1942). [537] Adams Express Co. _v._ Ohio State Auditor, 165 U.S. 194 (1897). [538] Alpha Portland Cement Co. _v._ Massachusetts, 268 U.S. 203 (1925). [539] Cream of Wheat Co. _v._ Grand Forks County, 253 U.S. 325 (1920). [540] Newark Fire Ins. Co. _v._ State Board, 307 U.S. 313, 318, 324 (1939). Although the eight judges affirming this tax were not in agreement as to the reasons to be assigned in justification of this result, the holding appears to be in line with the dictum uttered by the late Chief Justice Stone in Curry _v._ McCanless (307 U.S. at 368) to the effect that the taxation of a corporation by a State where it does business, measured by the value of the intangibles used in its business there, does not preclude the State of incorporation from imposing a tax measured by all its intangibles. [541] Delaware L. & W.R. Co. _v._ Pennsylvania, 198 U.S. 341 (1905). [542] Louisville & J. Ferry Co. _v._ Kentucky, 188 U.S. 385 (1903). [543] Kansas City Ry. _v._ Kansas, 240 U.S. 227 (1916); Kansas City, M. & B.R. Co. _v._ Stiles, 242 U.S. 111 (1916). [544] Schwab _v._ Richardson, 263 U.S. 88 (1923). [545] Western U. Teleg. Co. _v._ Kansas ex rel. Coleman, 216 U.S. 1 (1910); Pullman Co. _v._ Kansas ex rel. Coleman, 216 U.S. 56 (1910); Looney _v._ Crane Co., 245 U.S. 178 (1917); International Paper Co. _v._ Massachusetts, 246 U.S. 135 (1918). [546] Cudahy Packing Co. _v._ Hinkle, 278 U.S. 460 (1929). [547] St. Louis S.W.R. Co. _v._ Arkansas ex rel. Norwood, 235 U.S. 350 (1914). [548] Atlantic Refining Co. _v._ Virginia, 302 U.S. 22 (1937). [549] American Mfg Co. _v._ St. Louis, 250 U.S. 459 (1919). Nor does a State license tax on the production of electricity violate the due process clause because it may be necessary, to ascertain, as an element in its computation, the amounts delivered in another jurisdiction.--Utah Power & Light Co. _v._ Pfost, 286 U.S. 165 (1932). [550] James _v._ Dravo Contracting Co. 302 U.S. 134 (1937). [551] Union Refrigerator Transit Co. _v._ Kentucky, 199 U.S. 194 (1905). [552] Southern Pacific Co. _v._ Kentucky, 222 U.S. 63 (1911). [553] Old Dominion Steamship Co. _v._ Virginia, 198 U.S. 299 (1905). [554] 199 U.S. 194 (1905). [555] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891). [556] Northwest Airlines _v._ Minnesota, 322 U.S. 292, 294-297, 307 (1944).--The case was said to be governed by New York Central Railroad _v._ Miller, 202 U.S. 584, 596 (1906). As to the problem of multiple taxation of such airplanes, which had in fact been taxed proportionately by other States, the Court declared that the "taxability of any part of this fleet by any other State than Minnesota, in view of the taxability of the entire fleet by that State, is not now before us." Justice Jackson, in a concurring opinion, would treat Minnesota's right [to tax as] exclusive of any similar right elsewhere. [557] Johnson Oil Ref. Co. _v._ Oklahoma ex rel. Mitchell, 290 U.S. 158 (1933). [558] Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894). [559] Wallace _v._ Hines, 253 U.S. 66 (1920).--For example, the ratio of track mileage within the taxing State to total track mileage cannot be employed in evaluating that portion of total railway property found in said State when the cost of the lines in the taxing State was much less than in other States and the most valuable terminals of the railroad were located in other States. _See also_ Fargo _v._ Hart, 193 U.S. 490 (1904); Union Tank Line _v._ Wright, 249 U.S. 275 (1919). [560] Great Northern R. Co. _v._ Minnesota, 278 U.S. 503 (1929). [561] Illinois Cent. R. Co. _v._ Minnesota, 309 U.S. 157 (1940). [562] Lawrence _v._ State Tax Commission, 286 U.S. 276 (1932). [563] Shaffer _v._ Carter, 252 U.S. 37 (1920); Travis _v._ Yale & T. Mfg. Co., 252 U.S. 60 (1920). [564] New York ex rel. Cohn _v._ Graves, 300 U.S. 308 (1937). [565] Maguire _v._ Trefry, 253 U.S. 12 (1920). [566] Guaranty Trust Co. _v._ Virginia, 305 U.S. 19, 23 (1938). [567] Whitney _v._ Graves, 299 U.S. 366 (1937). [568] Underwood Typewriter Co. _v._ Chamberlain, 254 U.S. 113 (1920); Bass, Ratcliff & Gretton _v._ State Tax Commission, 266 U.S. 271 (1924). [569] Hans Rees' Sons _v._ North Carolina, 283 U.S. 123 (1931). [570] Matson Nav. Co. _v._ State Board, 297 U.S. 441 (1936). [571] Wisconsin _v._ J.C. Penney Co., 311 U.S. 435, 448-449 (1940). Dissenting, Justice Roberts, along with Chief Justice Hughes and Justices McReynolds and Reed, stressed the fact that the use and disbursement by the corporation at its home office of income derived from operations in many States does not depend on, and cannot be controlled by, any law of Wisconsin. The act of disbursing such income as dividends, he contended, is "one wholly beyond the reach of Wisconsin's sovereign power, one which it cannot effectively command, or prohibit or condition." The assumption that a proportion of the dividends distributed is paid out of earnings in Wisconsin for the year immediately preceding payment is arbitrary and not borne out by the facts. Accordingly, "if the exaction is an income tax in any sense it is such upon the stockholders [many of whom are nonresidents] and is obviously bad."--_See also_ Wisconsin _v._ Minnesota Mining Co., 311 U.S. 452 (1940). [572] Great A. & P. Tea Co. _v._ Grosjean, 301 U.S. 412 (1937). [573] Equitable L. Assur. Soc. _v._ Pennsylvania, 238 U.S. 143 (1915). [574] Provident Sav. Life Assur. Soc. _v._ Kentucky, 239 U.S. 103 (1915). [575] Continental Co. _v._ Tennessee, 311 U.S. 5, 6 (1940), (Emphasis supplied). [576] Palmetto F. Ins. Co. _v._ Connecticut, 272 U.S. 295 (1926). [577] St. Louis Cotton Compress Co. _v._ Arkansas, 260 U.S. 346 (1922). [578] Connecticut General Co. _v._ Johnson, 303 U.S. 77 (1938). [579] Metropolitan L. Ins. Co. _v._ New Orleans, 205 U.S. 395 (1907). [580] Board of Assessors _v._ New York L. Ins. Co., 216 U.S. 517 (1910). [581] Liverpool & L. & G. Ins. Co. _v._ Board of Assessors, 221 U.S. 346 (1911). [582] Orient Ins. Co. _v._ Board of Assessors, 221 U.S. 358 (1911). [583] Turpin _v._ Lemon, 187 U.S. 51, 58 (1902); Glidden _v._ Harrington, 189 U.S. 255 (1903). [584] McMillen _v._ Anderson, 95 U.S. 37, 42 (1877). [585] Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232, 239 (1890). [586] Hodge _v._ Muscatine County, 196 U.S. 276 (1905). [587] Hagar _v._ Reclamation Dist. No. 108, 111 U.S. 701, 709-710 (1884). [588] Hagar _v._ Reclamation Dist. No. 108, 111 U.S. 701, 710 (1884). [589] McMillen _v._ Anderson, 95 U.S. 37, 42 (1877). [590] Taylor _v._ Secor, (State Railroad Tax Cases), 92 U.S. 575, 610 (1876). [591] Nickey _v._ Mississippi, 292 U.S. 393, 396 (1934). _See also_ Clement Nat. Bank _v._ Vermont, 231 U.S. 120 (1914). [592] Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894). [593] Michigan C.R. Co. _v._ Powers, 201 U.S. 245, 302 (1906). [594] Pittsburgh, C.C. & St. L.R. Co. _v._ Board of Public Works, 172 U.S. 32, 45 (1898). [595] St. Louis & K.C. Land Co. _v._ Kansas City, 241 U.S. 419, 430 (1916); Paulson _v._ Portland, 149 U.S. 30, 41 (1893); Bauman _v._ Ross, 167 U.S. 548, 590 (1897). [596] Tonawanda _v._ Lyon, 161 U.S. 389, 391 (1901). [597] Londoner _v._ Denver, 210 U.S. 373 (1908). [598] Withnell _v._ Ruecking Constr. Co., 249 U.S. 63, 68 (1919); Browning _v._ Hooper, 269 U.S. 396, 405 (1926). Likewise, the committing to a board of county supervisors of authority to determine, without notice or hearing, when repairs to an existing drainage system are necessary cannot be said to deny due process of law to landowners in the district, who, by statutory requirement, are assessed for the cost thereof in proportion to the original assessments.--Breiholz _v._ Pocahontas County, 257 U.S. 118 (1921). [599] Fallbrook Irrig. District _v._ Bradley, 164 U.S. 112, 168, 175 (1896); Browning _v._ Hooper, 269 U S. 396, 405 (1926). [600] Utley _v._ St. Petersburg, 292 U.S. 106, 109 (1934); French _v._ Barber Asphalt Paving Co., 181 U.S. 324, 341 (1901). _See also_ Soliah _v._ Heskin, 222 U.S. 522 (1912). [601] Hibben _v._ Smith, 191 U.S. 310, 321 (1903). [602] Hancock _v._ Muskogee, 250 U.S. 454, 488 (1919).--Likewise, a taxpayer does not have a right to a hearing before a State board of equalization preliminary to issuance by it of an order increasing the valuation of all property in a city by 40%.--Bi-Metallic Invest. Co. _v._ State Bd. of Equalization, 239 U.S. 441 (1915). [603] Detroit _v._ Parker, 181 U.S. 399 (1901). [604] Paulsen _v._ Portland, 149 U.S. 30, 38 (1893). [605] Londoner _v._ Denver, 210 U.S. 373 (1908). _See also_ Cincinnati, N.O. & T.P.R. Co. _v._ Kentucky (Kentucky Railroad Tax Cases), 115 U.S. 321, 331 (1885); Winona & St. P. Land Co. _v._ Minnesota, 159 U.S. 526, 537 (1895); Merchants' & Mfgrs. Nat. Bank _v._ Pennsylvania, 167 U.S. 461, 466 (1897); Glidden _v._ Harrington, 189 U.S. 255 (1903). [606] Corry _v._ Baltimore, 196 U.S. 466, 478 (1905). [607] Leigh _v._ Green, 193 U.S. 79, 92-93 (1904). [608] Ontario Land Co. _v._ Yordy, 212 U.S. 152 (1909). _See also_ Longyear _v._ Toolan, 209 U.S. 414 (1908). [609] Brinkerhoff-Faris Trust & Sav. Co. _v._ Hill, 281 U.S. 673 (1930). [610] Central of Georgia R. Co. _v._ Wright, 207 U.S. 127 (1907). [611] Carpenter _v._ Shaw, 280 U.S. 363 (1930). _See also_ Ward _v._ Love County, 253 U.S. 17 (1920). [612] Farncomb _v._ Denver, 252 U.S. 7 (1920). [613] Pullman Co. _v._ Knott, 235 U.S. 23 (1914). [614] Bankers Trust Co. _v._ Blodgett, 260 U.S. 647 (1923). [615] National Safe Deposit Co. _v._ Stead, 232 U.S. 58 (1914). [616] Pierce Oil Corp. _v._ Hopkins, 264 U.S. 137 (1924). [617] Carstairs _v._ Cochran, 193 U.S. 10 (1904); Hannis Distilling Co. _v._ Baltimore, 216 U.S. 285 (1910). [618] Travis _v._ Yale & T. Mfg. Co., 252 U.S. 60, 75-76 (1920). [619] League _v._ Texas, 184 U.S. 156 (1902). [620] Palmer _v._ McMahon, 133 U.S. 660, 669 (1890). [621] Scottish Union & Nat. Ins. Co. _v._ Bowland, 196 U.S. 611 (1905). [622] King _v._ Mullins, 171 U.S. 404 (1898); Chapman _v._ Zobelein, 237 U.S. 135 (1915). [623] Leigh _v._ Green, 193 U.S. 79 (1904). [624] Davidson _v._ New Orleans, 96 U.S. 97, 107 (1878). [625] Dewey _v._ Des Moines, 173 U.S. 193 (1899). [626] League _v._ Texas, 184 U.S. 156, 158 (1902). _See also_ Straus _v._ Foxworth, 231 U.S. 162 (1913). [627] Exercisable as to every description of property, tangibles and intangibles including choses in action, contracts, and charters, but only for a public purpose, the power of eminent domain may also be conferred by the State upon municipal corporations, public utilities, and even upon individuals. Like every other governmental power, the power of eminent domain cannot be surrendered by the State or its subdivisions either by contract or by any other means.--Long Island Water Supply Co. _v._ Brooklyn, 166 U.S. 685 (1897); Offield _v._ New York, N.H. & H.R. Co., 203 U.S. 372 (1906); Sweet _v._ Rechel, 159 U.S. 380 (1895); Clark _v._ Nash, 198 U.S. 361 (1905); Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 (1917); Galveston Wharf Co. _v._ Galveston, 260 U.S. 473 (1923). [628] Green _v._ Frazier, 253 U.S. 233, 238 (1920). [629] 7 Pet. 243. [630] 96 U.S. 97, 105. [631] 166 U.S. 226, 233, 236-237 (1897); _see also_ Sweet _v_: Rechel, 159 U.S. 380, 398 (1895). [632] Hairston _v._ Danville & W.R. Co., 208 U.S. 598, 606 (1908). [633] Green _v._ Frazier, 253 U.S. 233, 240 (1920); Cincinnati _v._ Vester, 281 U.S. 439, 446 (1930). [634] Hairston _v._ Danville & W.R. Co., 208 U.S. 598, 607 (1908). [635] United States ex rel. T.V.A. _v._ Welch, 327 U.S. 546, 551-552, 556-558 (1946), citing Case _v._ Bowles, 327 U.S. 92, 101 (1946), and New York _v._ United States, 326 U.S. 572 (1946)--Concurring in the result, Justice Frankfurter insisted that "the fact that the nature of the subject matter gives the legislative determination nearly immunity from judicial review does not mean that the power to review is wanting." Also concurring in the result, Justice Reed, for himself and Chief Justice Stone, dissented from that portion of the opinion which suggested that "there is no judicial review" of the question whether a "taking is for a public purpose." [636] Justice Reed concurring in United States ex rel. T.V.A. _v._ Welch, 327 U.S. 546, 557 (1946). [637] Bragg _v._ Weaver, 251 U.S. 57-59 (1919).--It is no longer open to question that the State legislature may confer upon a municipality the authority to determine such necessity for itself.--Joslin Mfg. Co. _v._ Providence, 262 U.S. 668, 678 (1923). [638] Rindge Co. _v._ Los Angeles County, 262 U.S. 700 (1923). [639] Pumpelly _v._ Green Bay Company, 13 Wall. 166, 177-178 (1872); Welch _v._ Swasey, 214 U.S. 91 (1909); Pennsylvania Coal Co. _v._ Mahon, 260 U.S. 393 (1922). _See also_ comparable cases involving the Federal Government and discussed under the Fifth Amendment, United States _v._ Lynah, 188 U.S. 445 (1903); United States _v._ Cress, 243 U.S. 316 (1917); Portsmouth Harbor L. & H. Co. _v._ United States, 260 U.S. 327 (1922); United States _v._ Causby, 328 U.S. 256 (1946). _See also_ the cases hereinafter discussed on the limitations on "uncompensated takings." [640] Long Island Water Supply Co. _v._ Brooklyn, 166 U.S. 685 (1897) [641] Clark _v._ Nash, 198 U.S. 361 (1905). [642] Strickley _v._ Highland Boy Gold Mining Co., 200 U.S. 527 (1906). [643] Mt. Vernon-Woodberry Cotton Duck Co. _v._. Alabama Interstate Power Co., 240 U.S. 30 (1916). [644] Hendersonville Light & Power Co. _v._. Blue Ridge Interurban R. Co., 243 U.S. 563 (1917). [645] Roe _v._ Kansas ex rel. Smith, 278 U.S. 191, 193 (1929). [646] Dohany _v._ Rogers, 281 U.S. 362 (1930). [647] Hairston _v._ Danville & W.R. Co., 208 U.S. 598 (1908). [648] Delaware, L. & W.R. Co. _v._ Morristown, 276 U.S. 182 (1928). [649] Otis Co. _v._ Ludlow Mfg. Co., 201 U.S. 140, 151, 153 (1906). _See also_ Head _v._ Amoskeag Mfg. Co., 113 U.S. 9, 20-21 (1885). [650] Missouri P.R. Co. _v._ Nebraska ex rel. Board of Transportation, 164 U.S. 403, 416 (1896). The State court in this case was declared to have acknowledged that the taking was not for a public use. Hence, its reversal by the Supreme Court did not conflict with the later observation by the Court that "no case is recalled where this Court has condemned * * * a taking upheld by the State court as a taking for public uses in conformity with its laws."--_See_ Hairston _v._ Danville & W.R. Co., 208 U.S. 598, 607 (1908). [651] Backus (A.) Jr. and Sons _v._ Port Street Union Depot Co., 169 U.S. 557, 573, 575 (1898). [652] McGovern _v._ New York, 229 U.S. 363, 370-371 (1913). [653] Ibid. 371. [654] Provo Bench Canal and Irrig. Co. _v._ Tanner, 239 U.S. 323 (1915); Appleby _v._ Buffalo, 221 U.S. 524 (1911). [655] Backus (A.) Jr. and Sons _v._ Port Street Union Depot Co., 169 U.S. 557, 569 (1898). [656] Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 250 (1897); McGovern _v._ New York, 229 U.S. 363, 372 (1913). [657] Roberts _v._ New York, 295 U.S. 264 (1935). [658] Dohany _v._ Rogers, 281 U.S. 362 (1930). [659] Joslin Mfg. Co. _v._ Providence, 262 U.S. 668, 677 (1923). [660] Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 255 (1897). [661] Manigault _v._ Springs, 199 U.S. 473, 484-485 (1905). [662] Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 252 (1897). [663] Darling _v._ Newport News, 249 U.S. 540 (1919). [664] Northern Transportation Co. _v._ Chicago, 99 U.S. 635, 642 (1879). _See also_ Marchant _v._ Pennsylvania Railroad Co., 153 U.S. 380 (1894). [665] Meyer _v._ Richmond, 172 U.S. 82 (1898). For cases illustrative of the types of impairment or flooding consequent upon erection of dams or aids to navigation which have been deemed to amount to a taking for which compensation must be paid, _see_ Pumpelly _v._ Green Bay Company, 13 Wall. 166 (1872); United States _v._ Lynah, 188 U.S. 445 (1903); United States _v._ Cress, 243 U.S. 316 (1917). [666] Sauer _v._ New York, 206 U.S. 536 (1907). [667] Welch _v._ Swasey, 214 U.S. 91 (1909). [668] Pennsylvania Coal Co. _v._ Mahon, 260 U.S. 393, 413-414 (1922). For comparable cases involving the Federal Government _see_ Portsmouth Harbor L. & H. Co. _v._ United States, 260 U.S. 327 (1922) and United States _v._ Causby, 328 U.S. 256 (1946). [669] Georgia _v._ Chattanooga, 264 U.S. 472, 483 (1924). [670] North Laramie Land Co. _v._ Hoffman, 268 U.S. 276, 283 (1925). _See also_ Bragg _v._ Weaver, 251 U.S. 57 (1919). [671] Bragg _v._ Weaver, 251 U.S. 57 (1919); Joslin Mfg. Co. _v._ Providence, 262 U.S. 668, 678 (1923). [672] Bragg _v._ Weaver, 251 U.S. 57, 59 (1919); North Laramie Land Co. _v._ Hoffman, 268 U.S. 276 (1925). [673] Bragg _v._ Weaver, 251 U.S. 57, 59 (1919). [674] Long Island Water Supply Co. _v._ Brooklyn, 166 U.S. 685, 695 (1897). [675] Hays _v._ Seattle, 251 U.S. 233, 238 (1920); Bailey _v._ Anderson, 326 U.S. 203, 205 (1945). [676] The requirements of due process in tax and eminent domain proceedings are discussed in conjunction with the coverage of these topics. _See_ pp. 1056-1062, 1069. [677] Hagar _v._ Reclamation Dist., 111 U.S. 701, 708 (1884); Hurtado _v._ California, 110 U.S. 516, 537 (1884). [678] Brown _v._ New Jersey, 175 U.S. 172, 175 (1899); Hurtado _v._ California, 110 U.S. 516, 529 (1884); Twining _v._ New Jersey, 211 U.S. 78, 101 (1908); Anderson Nat. Bank _v._ Luckett, 321 U.S. 233, 244 (1944). [679] Marchant _v._ Pennsylvania R. Co., 153 U.S. 380, 386 (1894). [680] Ballard _v._ Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890). [681] McMillen _v._ Anderson, 95 U.S. 37, 41 (1877). [682] R.R. Commission _v._ Oil Co., 311 U.S. 570 (1941). _See also_ Railroad Commission _v._ Oil Co., 310 U.S. 573 (1940). [683] Dreyer _v._ Illinois, 187 U.S. 71, 83-84 (1902). [684] New York ex rel. Lieberman _v._ Van De Carr, 199 U.S. 552, 562 (1905). [685] Ohio ex rel. Bryant _v._ Akron Metropolitan Park Dist, 281 U.S. 74, 79 (1930). [686] Carfer _v._ Caldwell, 200 U.S. 293, 297 (1906). [687] Scott _v._ McNeal, 154 U.S. 34, 46 (1894); Pennoyer _v._ Neff, 95 U.S. 714, 733 (1878). [688] National Exchange Bank _v._ Wiley, 195 U.S. 257, 270 (1904); Iron Cliffs Co. _v._ Negaunee Iron Co., 197 U.S. 463, 471 (1905). [689] Arndt _v._ Griggs, 134 U.S. 316, 321 (1890); Grannis _v._ Ordean, 234 U.S. 385 (1914); Pennington _v._ Fourth Nat. Bank, 243 U.S. 269, 271 (1917). [690] Goodrich _v._ Ferris, 214 U.S. 71, 80 (1909). [691] Pennington _v._ Fourth Nat. Bank, 243 U.S. 269, 271 (1917). [692] The jurisdictional requirements for rendering a valid decree in divorce proceedings are considered under the full faith and credit clause, _supra_, pp. 662-670. [693] Pennoyer _v._ Neff, 95 U.S. 714 (1878); Simon _v._ Southern R. Co., 236 U.S. 115, 122 (1915); Grannis _v._ Ordean, 234 U.S. 385, 392, 394 (1914). [694] Louisville & N.R. Co. _v._ Schmidt, 177 U.S. 230 (1900); McDonald _v._ Mabee, 243 U.S. 90, 91, (1917). _See also_ Adam _v._ Saenger, 303 U.S. 59 (1938). [695] Rees _v._ Watertown, 19 Wall. 107 (1874); Coe _v._ Armour Fertilizer Works, 237 U.S. 413, 423 (1915); Griffin _v._ Griffin, 327 U.S. 220 (1946). [696] Sugg _v._ Thornton, 132 U.S. 524 (1889). [697] Riverside & Dan River Cotton Mills _v._ Menefee, 237 U.S. 189, 193 (1915); Hess _v._ Pawloski, 274 U.S. 352, 355 (1927). _See also_ Harkness _v._ Hyde, 98 U.S. 476 (1879); Wilson _v._ Seligman, 144 U.S. 41 (1892). [698] Milliken _v._ Meyer, 311 U.S. 457, 462-464 (1940). [699] McDonald _v._ Mabee, 243 U.S. 90, 92 (1917). [700] Thus, in an older decision rendered in 1919, the Court held that whereas "States could exclude foreign corporations * * *, and therefore establish * * * [appointment of such an agent] as a condition to letting them in," they had no power to exclude individuals; and as a consequence, a statute was ineffective which treated nonresident partners, by virtue of their having done business therein, as having consented to be bound by service of process on a person who was their employee when the transaction sued on arose but was not their agent at the time of service.--Flexner _v._ Farson, 248. U.S. 289, 293 (1919). Because it might be construed to negative extension to nonresidents, other than motorists, of the statutory device upheld in Hess _v._ Pawloski, the doctrine of Flexner _v._ Farson, "that the mere transaction of business in a State by a nonresident natural person does not imply consent to be bound by the process of its courts," was recently condemned as inadequate "to cope with the increasing problem of practical responsibility of hazardous business conducted in absentia * * *"--Sugg _v._ Hendrix, 142 F. (2d) 740, 742 (1944). [701] Hess _v._ Pawloski, 274 U.S. 352 (1927); Wuchter _v._ Pizzutti, 276 U.S. 13, 20, 24 (1928). [702] 326 U.S. 310, 316 (1945). [703] 326 U.S. 310. [704] Philadelphia & Reading Ry. Co. _v._ McKibbin, 243 U.S. 264, 265 (1917). [705] In a very few cases, "continuous operations within a State were thought to be so substantial and of such a nature as to justify suits against [a foreign corporation] on causes of action arising from dealings entirely distinct from those" operations.--_See_ St. Louis S.W.R. Co. _v._ Alexander, 227 U.S. 218 (1913); Missouri, K. & T.R. Co. _v._ Reynolds, 255 U.S. 565 (1921). [706] Old Wayne Life Assn. _v._ McDonough, 204 U.S. 8, 21 (1907). [707] Simon _v._ Southern R. Co., 236 U.S. 115, 129-130 (1915).--In neither this case, nor the preceding decision were the defendant corporations notified of the pendency of the action, service having been made only on the Insurance Commissioner or the Secretary of State. [708] Green _v._ Chicago, B. & Q.R. Co., 205 U.S. 530 (1907). _See also_ Davis _v._ Farmers Co-operative Co., 262 U.S. 312, 317 (1923). [709] Pennsylvania F. Ins. Co. _v._ Gold Issue Min. & M. Co., 243 U.S. 93, 95-96 (1917). [710] Rosenberg Bros. & Co. _v._ Curtis Brown Co., 260 U.S. 516, 517 (1923). [711] Goldey _v._ Morning News, 156 U.S. 518 (1895). [712] Conley _v._ Mathieson Alkali Works, 190 U.S. 406 (1903). [713] Riverside Mills _v._ Menefee, 237 U.S. 189, 195 (1915). [714] Mutual Life Insurance Co. _v._ Spratley, 172 U.S. 602 (1899). [715] St. Clair _v._ Cox, 106 U.S. 350, 356 (1882). _See_ St. Louis S.W.R. Co. _v._ Alexander, 227 U.S. 218 (1913). [716] Mutual Reserve &c. Assn. _v._ Phelps, 190 U.S. 147, 156 (1903). [717] Washington _v._ Superior Court, 289 U.S. 361, 365 (1933). [718] 326 U.S. 310, 317-320 (1945). [719] This departure was recognized by Justice Rutledge in a subsequent opinion in Nippert _v._ Richmond, 327 U.S. 416, 422 (1946). The principle that solicitation of business alone is inadequate to confer jurisdiction for purposes of subjecting a foreign corporation to a suit _in personam_ was established in Green _v._ Chicago, B. & Q.R. Co., 205 U.S. 530 (1907); but was somewhat qualified by the later holding in International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914) to the effect that when solicitation was connected with other activities (in the latter case, the local agents collected from the customers), a foreign corporation was then doing business within the forum State. Inasmuch as the International Shoe Company, in addition to having its agents solicit orders, also permitted them to rent quarters for the display of merchandise, the observation has been made that the Court, by applying the qualification of the International Harvester Case, could have decided International Shoe Co. _v._ Washington, 326 U.S. 310 (1945) as it did without abandoning the "presence" doctrine. [720] 326 U.S. 310, 316-317. [721] Ibid. 319. [722] 339 U.S. 643 (1950). [723] Ibid. 647-649.--Concerning the holding in Minnesota Ass'n. _v._ Benn, 261 U.S. 140 (1923), that a similar Minnesota mail order insurance company could not be viewed as doing business in Montana where the claimant-plaintiff lived, and that the circumstances under which its Montana contracts, executed and to be performed in Minnesota, were consummated could not support in implication that the foreign insurer had consented to be sued in Montana, the majority asserted that the "narrow grounds relied on by the Court in the Benn Case cannot be deemed controlling." Declaring that what is necessary to sustain a suit by a policyholder in Virginia against a foreign insurer is not determinative when the State seeks to regulate solicitation within its borders, Justice Douglas, in a concurring opinion, emphasized that it is the nature of the State's action that determines the degree of activity in a State necessary for satisfying the requirements of due process, and that solicitation by existing members operates as though the insurer "had formally designated Virginia members as its agents." Insisting that "an _in personam_ judgment cannot be based upon service by registered letter on a nonresident corporation or a natural person, neither of whom has ever been" in Virginia, Justice Minton, with whom Justice Jackson was associated in a dissenting opinion, would have dismissed the appeal on the ground that "Virginia has not claimed the power to require [the insurer] * * * to appoint the Secretary of State as their agent for service of process, nor have [its] courts rendered judgment in a suit where service was made in that manner." He would therefore let Virginia "go through this shadow-boxing performance in order to publicize the activities of" the insurer.--Justices Reed and Frankfurter joined this dissent on the merits.--Ibid. 655-656, 658, 659. In Perkins _v._ Benguet Mining Co., 342 U.S. 437 (1952) it was held, that the State of Ohio was free either to open its courts, or to refuse to do so, to a foreign corporation owning gold and silver mines in the Philippine Islands, but temporarily (during Japanese occupation) carrying on a part of its general business in Ohio, including directors meetings, business correspondence, banking, etc. Two members of the Court dissented, contending that what it was doing was "giving gratuitously an advisory opinion to the Ohio Supreme Court. [They] would dismiss the writ [of certiorari] as improvidently granted." The case is obviously too atypical to offer much promise of importance as a precedent. [724] Arndt _v._ Griggs, 134 U.S. 316, 321 (1890). [725] Ballard _v._ Hunter, 204 U.S. 241, 254 (1907); Pennoyer _v._ Neff, 95 U.S. 714 (1878). [726] Dewey _v._ Des Moines, 173 U.S. 193, 203 (1899); Pennoyer _v._ Neff, 95 U.S. 714 (1878). [727] American Land Co. _v._ Zeiss, 219 U.S. 47 (1911). [728] Pennoyer _v._ Neff, 95 U.S. 714 (1878); citing Boswell _v._ Otis, 9 How. 336 (1850); Cooper _v._ Reynolds, 10 Wall. 308 (1870). Such remedy, by way of example, is also available to a wife who is enabled thereby to impound local bank deposits of her absent husband for purposes of collecting unpaid instalments by him. Moreover, because of the antiquity of the procedure authorized, a statute permitting the impounding of property of an absconding father for the maintenance of his children is not in conflict with due process because it fails to provide for notice, actual or constructive, to the absconder.--Pennington _v._ Fourth Nat. Bank, 243 U.S. 269, 271 (1917); Corn Exch. Bank _v._ Coler, 280 U.S. 218, 222 (1930). Likewise, proceedings to attach wages in execution of a judgment for debt may be instituted without any notice or service on the judgment debtor. The latter, having had his day in court when the judgment was rendered, is not entitled to be apprized of what action the judgment creditor may elect to take to enforce collection.--Endicott Co. _v._ Encyclopedia Press, 266 U.S. 285, 288 (1924). [729] Goodrich _v._ Ferris, 214 U.S. 71, 80 (1909). [730] McCaughey _v._ Lyall, 224 U.S. 558 (1912). [731] RoBards _v._ Lamb, 127 U.S. 58, 61 (1888). Inasmuch as it is within the power of a State to provide that one who has undertaken administration of an estate shall remain subject to the order of its courts until said administration is closed, it follows that there can be no question as to the validity of a judgment for unadministered assets obtained on service of publication plus service personally upon an executor in the State in which he had taken refuge and in which he had been adjudged incompetent.--Michigan Trust Co. _v._ Ferry, 228 U.S. 346 (1913). Also, when a mother petitions for her appointment as guardian, and no one but the mother and her infant son of tender years, are concerned, failure to serve notice of the petition upon the infant does not invalidate the proceedings resulting in her appointment.--Jones _v._ Prairie Oil & Gas Co., 273 U.S. 195 (1927). Also a Pennsylvania statute which establishes a special procedure for appointment of one to administer the estate of absentees, which procedure is distinct from that contained in the general law governing settlement of decedents' estates and provides special safeguards to protect the rights of absentees is not repugnant to the due process clause because it authorizes notice by publication after an absence of seven years.--Cunnius _v._ Reading School Dist., 198 U.S. 458 (1905). [732] Hamilton _v._ Brown, 161 U.S. 256, 275 (1896). [733] Security Sav. Bank _v._ California, 263 U.S. 282 (1923). [734] Anderson Nat. Bank _v._ Luckett, 321 U.S. 233 (1944). [735] Mullane _v._ Central Hanover Tr. Co., 339 U.S. 306 (1950). [736] Voeller _v._ Neilston Co., 311 U.S. 531 (1941). [737] Grannis _v._ Ordean, 234 U.S. 385, 395-396 (1914). [738] Miedreich _v._ Lauenstein, 232 U.S. 236 (1914). [739] Twining _v._ New Jersey, 211 U.S. 78, 110 (1908); Jacob _v._ Roberts, 223 U.S. 261, 265 (1912). [740] Bi-Metallic Co. _v._ Colorado, 239 U.S. 441, 445 (1915); Bragg _v._ Weaver, 251 U.S. 57, 58 (1919). For the procedural requirements that must be observed in the passage of legislation levying special assessments or establishing assessment districts, _see_ pp. 1058-1059. [741] Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935); Western Union Telegraph Co. _v._ Industrial Com'n., 24 F. Supp. 370 (1938); Ralph F. Fuchs, Procedure in Administrative Rule-Making, 52 Harvard Law Review, 259 (1938). Whether action of an administrative agency, which voluntarily affords notice and hearing in proceedings in which due process would require the same, is voided by the fact that the statute in pursuance of which it operates does not expressly provide such protection, is a question as to which the Supreme Court has developed no definitive answer. It appears to favor the doctrine enunciated by State courts to the effect that such statutes are to be construed as impliedly requiring notice and hearing, although, in a few instances, it has uttered comments rejecting this notice-by-implication theory.--_See_ Toombs _v._ Citizens Bank, 281 U.S. 643 (1930); Paulsen _v._ Portland, 149 U.S. 30 (1893); Bratton _v._ Chandler, 260 U.S. 110 (1922); Cincinnati, N.O. & T.R. Co. _v._ Kentucky, 115 U.S. 321 (1885). _Contra_: Central of Georgia R. Co. _v._ Wright, 207 U.S. 127 (1907); Coe _v._ Armour Fertilizer Works, 237 U.S. 413 (1915); Wuchter _v._ Pizzutti, 276 U.S. 13 (1928). [742] Bratton _v._ Chandler, 260 U.S. 110 (1922); Missouri ex rel. Hurwitz _v._ North, 271 U.S. 40 (1926). [743] North American Cold Storage Co. _v._ Chicago, 211 U.S. 306, 315-316 (1908). For an exposition of the doctrine applicable for determining the tort liability of administrative officers, _see_ Miller _v._ Horton, 152 Mass. 540 (1891). [744] Samuels _v._ McCurdy, 267 U.S. 188 (1925). [745] 152 U.S. 133 (1894). [746] Ibid. 140-141. [747] Anderson National Bank _v._ Luckett, 321 U.S. 233, 246-247 (1944). [748] Coffin Bros. & Co. _v._ Bennett, 277 U.S. 29, 31 (1928). [749] Postal Teleg. Cable Co. _v._ Newport, 247 U.S. 464, 476 (1918); Baker _v._ Baker, E. & Co., 242 U.S. 394, 403 (1917); Louisville & N.R. Co. _v._ Schmidt, 177 U.S. 230, 236 (1900). [750] American Surety Co _v._ Baldwin, 287 U.S. 156, 168 (1932). [751] Saunders _v._ Shaw, 244 U.S. 317 (1917). [752] _See_ footnote 1, p. 1085. [Transcriber's Note: Reference is to Footnote 741, above.] [753] Coe _v._ Armour Fertilizer Works, 237 U.S. 413, 424 (1915); Wuchter _v._ Pizzutti, 276 U.S. 13 (1928). [754] Roller _v._ Holly, 176 U.S. 398, 407, 409 (1900). [755] Goodrich _v._ Ferris, 214 U.S. 71, 80 (1909). One may, of course, waive a right to notice and hearing, as in the case of a debtor or surety who consents to the entry of a confessed judgment on the happening of certain conditions.--Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388 (1886); American Surety Co. _v._ Baldwin, 287 U.S. 156 (1932). [756] _See_ pp. 1084-1088. [757] Holmes _v._ Conway, 241 U.S. 624, 631 (1916); Louisville & N.R. Co. _v._ Schmidt, 177 U.S. 230, 236 (1900). [758] Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934); West _v._ Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897); Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912). The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts, in the exercise of its right to regulate practice and procedure; is also subject to the restrictions imposed by the contract, full faith and credit, and privileges and immunities clauses of the Federal Constitution. Angel _v._ Bullington, 330 U.S. 183 (1947). [759] Hardware Dealers Mut. F. Ins. Co. _v._ Glidden Co., 284 U.S. 151, 158 (1931); Iowa C.R. Co. _v._ Iowa, 160 U.S. 389, 393 (1896); Honeyman _v._ Hanan, 302 U.S. 375 (1937). [760] Cincinnati Street R. Co. _v._ Snell, 193 U.S. 30, 36 (1904). [761] Ownbey _v._ Morgan, 256 U.S. 94, 112 (1921). Thus, the Fourteenth Amendment does not constrain the States to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammeled liberty to make amendments. [762] Cohen _v._ Beneficial Loan Corp., 337 U.S. 541 (1949). [763] Young Co. _v._ McNeal-Edwards Co., 283 U.S. 398 (1931); Adam _v._ Saenger, 303 U.S. 59 (1938). [764] Jones _v._ Union Guano Co., 264 U.S. 171 (1924). [765] York _v._ Texas, 137 U.S. 15 (1890); Kauffman _v._ Wooters, 138 U.S. 285, 287 (1891). [766] Grant Timber & Mfg. Co. _v._ Gray, 236 U.S. 133 (1915). [767] Ownbey _v._ Morgan, 256 U.S. 94, 111 (1921).--Consistently, with due process, a State may provide that the doctrines of contributory negligence, assumption of risk, and fellow servant shall not bar recovery in actions brought against an employer for death or injury resulting from dangerous machinery improperly safeguarded. A person having no vested right to the defense of contributory negligence, a State may take it away altogether, or may provide that said defense, as well as that of assumption of risk, are questions of fact to be left to the jury.--Bowersock _v._ Smith, 243 U.S. 29, 34 (1917); Chicago, R.I. & P.R. Co. _v._ Cole, 251 U.S. 54, 55 (1919); Herron _v._ Southern P. Co., 283 U.S. 91 (1931). [768] Sawyer _v._ Piper, 189 U.S. 154 (1903). [769] Ballard _v._ Hunter, 204 U.S. 241, 259 (1907). [770] Missouri K. & T.R. Co. _v._ Cade, 233 U.S. 642, 650 (1914). [771] Lowe _v._ Kansas, 163 U.S. 81 (1896). [772] Yazoo & M.V.R. Co. _v._ Jackson Vinegar Co., 226 U.S. 217 (1912); Chicago & N.W.R. Co. _v._ Nye Schneider Fowler Co., 260 U.S. 35, 43-44 (1922); Hartford L. Ins. Co. _v._ Blincoe, 255 U.S. 129, 139 (1921); Life & C. Ins. Co. _v._ McCray, 291 U.S. 566 (1934). [773] Pizitz Dry Goods Co. _v._ Yeldell, 274 U.S. 112, 114 (1927). [774] Coffey _v._ Harlan County, 204 U.S. 659, 663, 665 (1907). [775] Wheeler _v._ Jackson, 137 U.S. 245, 258 (1890); Kentucky Union Co. _v._ Kentucky, 219 U.S. 140, 156 (1911). [776] Blinn _v._ Nelson, 222 U.S. 1 (1911). [777] Turner _v._ New York, 168 U.S. 90, 94 (1897). [778] Soper _v._ Lawrence Bros. Co., 201 U.S. 359 (1906). Nor is a former owner who had not been in possession for five years after and fifteen years before said enactment thereby deprived of any property without due process. [779] Mattson _v._ Department of Labor, 293 U.S. 151, 154 (1934). [780] Campbell _v._ Holt, 115 U.S. 620, 623, 628 (1885). [781] Chase Securities Corp. _v._ Donaldson, 325 U.S. 304 (1945). [782] Gange Lumber Co. _v._ Rowley, 326 U.S. 295 (1945). [783] Campbell _v._ Holt, 115 U.S. 620, 623 (1885). _See also_ Stewart _v._ Keyes, 295 U.S. 403, 417 (1935). [784] Home Ins. Co. _v._ Dick, 281 U.S. 397, 398 (1930). [785] Hawkins _v._ Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Farm Mortg. Co. _v._ Harry, 273 U.S. 119, 124 (1927). An omission in a criminal trial of any reference to the presumption of innocence effects no denial of due process of law where the State appellate court ruled that such omission did not invalidate the proceedings. Howard _v._ Fleming, 191 U.S. 126, 136 (1903). [786] Manley _v._ Georgia, 279 U.S. 1, 5 (1929); Western & A.R. Co. _v._ Henderson, 279 U.S. 639, 642 (1929); Bailey _v._ Alabama, 219 U.S. 219, 233 (1911); Mobile, J. & K.C.R. Co. _v._ Turnipseed, 219 U.S. 35, 42 (1910). [787] Bailey _v._ Alabama, 219 U.S. 219, 233 (1911). [788] Manley _v._ Georgia, 279 U.S. 1, 7 (1929). [789] Western & A.R. Co. _v._ Henderson, 279 U.S. 639 (1929). [790] Atlantic Coast Line R. Co. _v._ Ford, 287 U.S. 502 (1933). _See also_ Mobile, J. & K.C.R. Co. _v._ Turnipseed, 219 U.S. 35 (1910). [791] Hawes _v._ Georgia, 258 U.S. 1 (1922). [792] Bandini Petroleum Co. _v._ Superior Ct., 284 U.S. 8, 19 (1931). [793] Hawker _v._ New York, 170 U.S. 189 (1898). [794] Cockrill _v._ California, 268 U.S. 258, 261 (1925). [795] Morrison _v._ California, 288 U.S. 591 (1933). [796] Morrison _v._ California, 291 U.S. 82 (1934). [797] "The limits are in substance these, that the State shall have proved enough to make it just for the defendant to be required to repeal what has been proved * * *, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression."--Ibid. 88-89. [798] Ibid. 87-91, 96-97. [799] Leland _v._ Oregon, 343 U.S. 790 (1952). [800] Walker _v._ Sauvinet, 92 U.S. 90 (1876); New York C.R. Co. _v._ White, 243 U.S. 188, 208 (1917); Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934). [801] Marvin _v._ Trout, 199 U.S. 212, 226 (1905). [802] Tinsley _v._ Anderson, 171 U.S. 101, 108 (1898); Eilenbecker _v._ District Court, 134 U.S. 31, 36, 39 (1890). [803] Delgado _v._ Chavez, 140 U.S. 586, 588 (1891). [804] Wilson _v._ North Carolina ex rel. Caldwell, 169 U.S. 586 (1898); Foster _v._ Kansas ex rel. Johnston, 112 U.S. 201, 206 (1884). [805] Long Island Water Supply Co. _v._ Brooklyn, 166 U.S. 685, 694 (1897). [806] Montana Company _v._ St. Louis Min. & Mill Co., 152 U.S. 160, 171 (1894); Church _v._ Kelsey, 121 U.S. 282 (1887). [807] Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912). [808] Maxwell _v._ Dow, 176 U.S. 581, 602 (1900). [809] Winters _v._ New York, 333 U.S. 507, 509-510, 515 (1948). _See also_ Cline _v._ Frink Dairy, 274 U.S. 445 (1927); Cole _v._ Arkansas, 338 U.S. 345, 354 (1949). [810] Lanzetta _v._ New Jersey, 306 U.S. 451, 455 (1939). [811] Minnesota _v._ Probate Court, 309 U.S. 270 (1940). [812] Hurtado _v._ California, 110 U.S. 516, 520, 538 (1884); Brown _v._ New Jersey, 175 U.S. 172, 175 (1890); Maxwell _v._ Dow, 176 U.S. 581, 602 (1900); Graham _v._ West Virginia, 224 U.S. 616, 627 (1912); Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912). [813] Lem Woon _v._ Oregon, 229 U.S. 586, 590 (1913). [814] Gaines _v._ Washington, 277 U.S. 81, 86 (1928). [815] Norris _v._ Alabama, 294 U.S. 587 (1935). _See also_ Hale _v._ Kentucky, 303 U.S. 613 (1938); Pierre _v._ Louisiana, 306 U.S. 354 (1939); Smith _v._ Texas, 311 U.S. 128 (1940); Shepherd _v._ Florida, 341 U.S. 50 (1951). [816] Powell _v._ Alabama, 287 U.S. 45, 66, 71 (1932). [817] Palko _v._ Connecticut, 302 U.S. 319, 324-325 (1937). [818] 287 U.S. 45 (1932). [819] Ibid. 71. [820] 287 U.S. 45, 71 (1932).--The Court presently seems to be holding that in capital cases, notwithstanding the absence even of other circumstances prejudicial to the defendant, the right to counsel is unqualified. _See_ the later cases discussed herein, especially Tomkins _v._ Missouri, 323 U.S. 485 (1945); Williams _v._ Kaiser, 323 U.S. 471 (1945); Hawk _v._ Olson, 326 U.S. 271 (1945); and the Court's summary of its rulings in Uveges _v._ Pennsylvania, 335 U.S. 437 (1948), _supra_, p. 1108. [821] 308 U.S. 444 (1940). [822] Ibid. 446-447. [823] 312 U.S. 329 (1941).--In a post mortem comment on this case appearing in the later decision of Betts _v._ Brady, 316 U.S. 455, 464 (1942), there is contained the intimation that the mere failure to appoint counsel, alone, in the absence of the proof of other facts tending to show that the whole trial was "a mere sham and a pretense," would not have sufficed to support a finding of a denial of due process. [824] 316 U.S. 455, 462-463 (1942). [825] Ibid. 462, 473. [826] In Powell _v._ Alabama, 287 U.S. 45 (1932); Avery _v._ Alabama, 308 U.S. 444 (1940); and Smith _v._ O'Grady, 312 U.S. 329 (1941), a State law required the appointment of counsel. [827] 316 U.S. 455, 461-462, 474-476 (1942).--Dissenting, Justice Black, with whom Justices Douglas and Murphy were in agreement, acknowledged regretfully that the view that the "Fourteenth Amendment made the Sixth applicable to the States * * * has never been accepted by a majority of this Court," and submitted a list of citations showing that by judicial decision, as well as by constitutional and statutory provision, a majority of States require that indigent defendants, in noncapital as well as capital cases, be provided with counsel on request. This evidence, he contended, supports the conclusion that "denial to the poor of a request for counsel in proceedings based on serious charges of crime," has "long been regarded throughout this country as shocking to the 'universal sense of justice.'" [828] 323 U.S. 471 (1945). [829] 323 U.S. 485 (1945). [830] 287 U.S. 45, 69, 71 (1932). [831] 323 U.S. 471, 476 (1945). [832] 324 U.S. 42 (1945). _See also_ White _v._ Ragen, 324 U.S. 760 (1945). [833] 326 U.S. 271 (1945). [834] 324 U.S. 42, 46 (1945). [835] 324 U.S. 786 (1945). [836] 327 U.S. 82 (1946). Justices Murphy and Rutledge dissented, the former contending that "the right to counsel means nothing unless it means the right to counsel at each and every step in a criminal proceeding."--Ibid. 89. [837] 329 U.S. 173 (1946). [838] Rice _v._ Olson, 324 U.S. 786 (1945), was distinguished on the ground that the record in the older case contained specific allegations bearing on the disabilities of the accused to stand prosecution without the aid of counsel and the complete absence of any uncontested finding, as in the instant case, of an intelligent waiver of counsel. Dissenting for himself and Justices Black and Rutledge, Justice Douglas declared that, under the authority of Williams _v._ Kaiser, 323 U.S. 471, 476 (1945), "if * * * [the] defendant is not capable of making his own defense, it is the duty of the Court, at least in capital cases, to appoint counsel, whether requested so to do or not."--329 U.S. 173, 181 (1946). In a separate dissent, Justice Murphy observed that while "legal technicalities doubtless afford justification for our pretense of ignoring plain facts before us," facts which emphasize the absence of any intelligent waiver of counsel, "the result certainly does not enhance the high traditions of the judicial process."--Ibid. 183. [839] 329 U.S. 663, 665 (1947). [840] 332 U.S. 134 (1947). [841] 332 U.S. 145 (1947). [842] 332 U.S. 134, 136 (1947).--Acknowledging that the decision is in line with the precedent of Betts _v._ Brady, Justice Black, who was joined by Justices Douglas, Murphy, and Rutledge, lamented that the latter was a "kind of precedent [which he] had hoped that the Court would not perpetuate." Complaining of the loss of certainty occasioned by the Court's refusal to read into the Fourteenth Amendment the absolute right to counsel set out in the Sixth Amendment, Justice Black contends that the fair trial doctrine as enunciated in this and in the Adamson _v._ California case (_see_ p. 1115) decided on the same day is "another example of the consequences which can be produced by the substitution of this Court's day-to-day opinion of what kind of trial is fair and decent for the kind of trial which the Bill of Rights guarantees."--Ibid. 139, 140.--In a second dissenting opinion meriting the concurrence of Justices Black, Douglas, and Murphy, Justice Rutledge, who also is of the opinion that the absolute right to counsel granted by the Sixth Amendment should be enjoyed in State criminal trials, insisted that even under the fair trial doctrine, the accused had not been accorded due process. [843] 332 U.S. 145 (1947). [844] 332 U.S. 561 (1947). [845] 332 U.S. 596 (1948). [846] _See_ p. 1103. [847] 333 U.S. 640, 678, 680-682 (1948).--As against the assertion of the majority that the due process clause of the Fourteenth Amendment does not of its own force require appointment of counsel for one simply because he would have a constitutional right to the assistance of counsel in a comparable federal case, the minority, consisting of Justices Black, Murphy, and Rutledge speaking through Justice Douglas, declared that "the Bill of Rights is applicable to all courts at all times"; for, otherwise, "of what value is the constitutional guarantee of a fair trial if an accused does not have counsel to advise and defend him." Noting that all members of the Court were in accord on the requirement of counsel in capital offenses, the minority contended that the considerations inducing such unanimity were "equally germane [in noncapital cases] where liberty rather than life hangs in the balance." Conceding that "it might not be nonsense to draw the Betts _v._ Brady line somewhere between that case and the case of one charged with violation of a parking ordinance, and to say the accused is entitled to counsel in the former but not in the latter," the minority concluded as follows: "* * * to draw the line between this case and cases where the maximum penalty is death is to make a distinction which makes no sense in terms of the absence or presence of need for counsel. Yet it is the _need_ for counsel that establishes the real standard for determining whether the lack of counsel rendered the trial unfair. And the need for counsel, even by Betts _v._ Brady standards, is not determined by the complexities of the individual case or the ability of the particular person who stands as an accused before the Court. That need is measured by the _nature_ of the _charge_ and the _ability_ of the _average_ man to face it alone, unaided by an expert in the law." [848] 334 U.S. 672, 683 (1948). [849] 334 U.S. 728, 730, 731 (1948). [850] 334 U.S. 736 (1948). [851] Ibid. 740.--The majority also observed that "trial court's facetiousness casts a somewhat somber reflection on the fairness of the proceeding * * *" Although Chief Justice Vinson and Justices Reed and Burton dissented without an opinion in Townsend _v._ Burke, four Justices, Black, Douglas, and Murphy speaking through Justice Rutledge filed a vigorous dissent in Gryger _v._ Burke, 334 U.S. 728, 733, 736 (1948). Justice Rutledge declared his inability to "square * * * [this] decision in this case with that made in Townsend _v._ Burke. I find it difficult to comprehend that the [trial] court's misreading or misinformation concerning the facts of [the] record [Townsend _v._ Burke] vital to the proper exercise of the sentencing function is prejudicial * * *, but its misreading or misconception of the controlling statute, [Gryger _v._ Burke] in a matter so vital as imposing mandatory sentence or exercising discretion concerning it, has no such effect. Perhaps the difference serves only to illustrate how capricious are the results when the right to counsel is made to depend not upon the mandate of the Constitution, but upon the vagaries of whether judges, * * * will regard this incident or that in the course of particular criminal proceedings as prejudicial." [852] 335 U.S. 437, 438-442 (1948). [853] 337 U.S. 773, 780 (1949). [854] 342 U.S. 184 (1951); _See also_ Per Curiam opinion granting certiorari in Foulke _v._ Burke, 342 U.S. 881 (1951). [855] 339 U.S. 660, 665 (1950). [856] 342 U.S. 55 (1951). [857] Ibid. 64. [858] 335 U.S. 437, 440-441 (1948). [859] Rice _v._ Olson, 324 U.S. 786, 788-789 (1945). [860] Wade _v._ Mayo, 334 U.S. 672, 683-684 (1948); De Meerleer _v._ Michigan, 329 U.S. 663, 664-665 (1947); Betts _v._ Brady, 316 U.S. 455, 472 (1942); Powell _v._ Alabama, 287 U.S. 45, 51-52, 71 (1932). [861] Townsend _v._ Burke, 334 U.S. 736, 739-741 (1948); De Meerleer _v._ Michigan, 329 U.S. 663, 665 (1947); Smith _v._ O'Grady, 312 U.S. 329, 332-333 (1941). [862] Rice _v._ Olson, 324 U.S. 786, 789-791 (1945). [863] Gibbs _v._ Burke, 337 U.S. 773, 780-781 (1949). Devotion to the Fair Trial doctrine has also created another problem for the Court, that of a burdensome increase in the volume of its business. Inasmuch as accurate appraisal of the effect of absence of counsel on the validity of a State criminal proceeding has been rendered more difficult by the vagueness of that doctrine as well as by the Court's acknowledged variation in the application thereof, innumerable State prisoners have been tempted to seek judicial reconsideration of their convictions. To reduce the number of such cases which it is obliged to examine on their merits, the Court had been compelled to have recourse to certain protective rules. Thus, when a State prisoner seeks to attack the validity of his conviction by way of _habeas corpus_ proceedings begun in a lower federal court, application for that writ will be entertained only after all State remedies available, including all appellate remedies in State courts and in the Supreme Court by appeal or writ of certiorari, have been exhausted. This rule, however, will not be applied when no adequate State remedy is in fact available. Also when a prisoner's petition for release on the grounds of the unconstitutionally of his conviction has been rejected by a State court, a petition for certiorari addressed to the United States Supreme Court will be denied whenever it appears that the prisoner had not invoked the appropriate State remedy. Or stated otherwise, where the State court's conviction or refusal to grant writs of _habeas corpus_ to those under State sentences may fairly be attributed to a rule of local procedure and is not exclusively founded on the denial of a federal claim, such as, right to counsel, the Supreme Court will refuse to intervene. As in the case of other legal rules, Justices of the Supreme Court have often found themselves in disagreement as to the manner of applying these aforementioned principles; and vigorous dissents arising out of this very issue were recorded in the cases of Marino _v._ Ragen, 332 U.S. 561 (1947); Wade _v._ Mayo, 334 U.S. 672 (1948); and Uveges _v._ Pennsylvania, 335 U.S. 437 (1948). Justice Frankfurter has frequently, albeit unsuccessfully contended, that "intervention by * * * [the Supreme Court] in the criminal process of States * * * should not be indulged in unless no reasonable doubt is left that a State denies, or has refused to exercise, means of correcting a claimed infraction of the United States Constitution. * * * After all, [it should be borne in mind that] this is the Nation's ultimate judicial tribunal, not a super-legal-aid bureau." [864] 176 U.S. 581 (1900). [865] 110 U.S. 516 (1884). [866] Jordan _v._ Massachusetts, 225 U.S. 167, 176. (1912). [867] Maxwell _v._ Dow, 176 U.S. 581 (1900). [868] Hallinger _v._ Davis, 146 U.S. 314 (1892). [869] Ibid. 318-320. [870] Missouri _v._ Lewis, 101 U.S. 22 (1880); Maxwell _v._ Dow, 176 U.S. 581, 603 (1900); Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912); Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934). [871] Brown _v._ New Jersey, 175 U.S. 172, 175, 176 (1899). [872] Ashe _v._ United States ex rel. Valotta, 270 U.S. 424, 425 (1926). [873] Fay _v._ New York, 332 U.S. 261, 288 (1947); Moore _v._ New York, 333 U.S. 585 (1948).--Both cases reject the proposition that the commandment of the Sixth Amendment, which requires a jury trial in criminal cases in the federal courts is picked up by the due process clause of the Fourteenth Amendment so as to become a limitation upon the States. [874] Fay _v._ New York, 332 U.S. 261, 283-284 (1947).--Since Congress, by way of enforcing the guarantees contained in the Fourteenth Amendment, has, by statute [18 Stat. 336, 377 (1875); 8 U.S.C. 44], made it a crime to exclude a citizen from jury service only on account of race, color, or previous condition of servitude, the Supreme Court "never has interfered with the composition of State court juries except in cases where this guidance of Congress was applicable." Without suggesting that "no case of discrimination in jury drawing except those involving race or color can carry such unjust consequences as to amount to a denial of * * * due process," the Court has nevertheless required that a defendant, alleging grounds not covered by that statute, "must comply with the exacting requirements of proving clearly" that the procedure in his case was destructive of due process. These statements reflect the views of only five Justices. Speaking for the minority (Justices Black, Douglas, and Rutledge), Justice Murphy declared that "the vice lies in the very concept of 'blue ribbon' panels--the systematic and intentional exclusion of all but the 'best' or the most learned or intelligent of the general jurors. Such panels are completely at war with the democratic theory of our jury system, a theory formulated out of the experience of generations. One is constitutionally entitled to be judged by a fair sampling of all one's neighbors who are qualified, not merely those with superior intelligence or learning. Jury panels are supposed to be representative of all qualified classes. Within those classes, of course, are persons with varying degrees of intelligence, wealth, education, ability and experience. But it is from that welter of qualified individuals, who meet specified minimum standards, that juries are to be chosen. Any method that permits only the 'best' of these to be selected opens the way to grave abuses. The jury is then in danger of losing its democratic flavor and becoming the instrument of the select few." A "blue ribbon jury" is neither "a jury of the * * * [defendant's] peers," nor "a jury chosen from a fair cross-section of the community, * * *"--Moore _v._ New York, 333 U.S. 565, 569-570 (1948). [875] Rawlins _v._ Georgia, 201 U.S. 638 (1906). The Supreme Court "has never entertained a defendant's objections to exclusions from the jury except when he was a member of the excluded class."--Fay _v._ New York, 332 U.S. 261, 287 (1947). [876] 211 U.S. 78, 93, 106-107, 113; citing Missouri _v._ Lewis, 101 U.S. 22 (1880); and Holden _v._ Hardy, 169 U.S. 366, 387, 389 (1898). [877] In several decisions the Court, assuming, but without deciding, that a State law requiring a witness to answer incriminating questions would violate the due process clause, has then proceeded to conclude, nevertheless, that a State antitrust law which grants immunity from local prosecution to a witness compelled to testify thereunder is valid even though testimony thus extracted may later serve as the basis of a federal prosecution for violation of federal antitrust laws.--Jack _v._ Kansas, 199 U.S. 372, 380 (1905). [878] Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934). [879] Palko _v._ Connecticut, 302 U.S. 319, 325-326 (1937). [880] 297 U.S. 278, 285-286 (1936). For the significance of this decision as a precedent in favor of a more careful scrutiny by the Supreme Court of State trials in which a denial of constitutional rights allegedly occurred, see p. 1138. [881] Ibid, 285-286. [882] 309 U.S. 227 (1940). [883] Ibid. 228-229, 237-241. [884] 310 U.S. 530 (1940). [885] 314 U.S. 219, 237 (1941). This dictum represents the closest approach which the Court thus far has made toward inclusion of the privilege against self-incrimination within the due process clause of the Fourteenth Amendment. In all but a few of the forced confession cases, however, the results achieved by application of the Fair Trial doctrine differ scarcely at all from those attainable by incorporation of the privilege within that clause. [886] 316 U.S. 547 (1942). [887] 322 U.S. 143 (1944). [888] _See_ Baldwin _v._ Missouri, 281 U.S. 586, 595 (1930). [889] 322 U.S. 143, 160-162 (1944).--All members of the Court were in accord, however, in condemning, as no less a denial of due process, the admission at the second trial of Ashcraft [Ashcraft _v._ Tennessee, 327 U.S. 274 (1946)] of evidence uncovered in consequence of the written confession, acceptance of which at the first trial had led to the reversal of his prior conviction. [890] 322 U.S. 596 (1944). [891] Ibid. 602.--Of three Justices who dissented, Justice Murphy, with whom Justice Black was associated, declared that it was "inconceivable * * * that the second confession was free from the coercive atmosphere that admittedly impregnated the first one"; and added that previous decisions of this Court "in effect have held that the Fourteenth Amendment makes the prohibition [of the Fifth pertaining to self-incrimination] applicable to the States."--Ibid. 605-606. [892] 324 U.S. 401 (1945). [893] Chief Justice Stone, together with Justices Roberts, Reed, and Jackson, all of whom dissented, would have sustained the conviction. [894] Justices Rutledge and Murphy dissented in part, assigning among their reasons therefor their belief that the "subsequent confessions, * * *, were vitiated with all the coercion which destroys admissibility of the first one." According to Justice Rutledge, "a stricter standard is necessary where the confession tendered follows a prior coerced one than in the case of a single confession * * *. Once a coerced confession has been obtained all later ones should be excluded from evidence, wherever there is evidence that the coerced one has been used to secure the later ones."--324 U.S. 401, 420, 428-429 (1945). [895] In Lyons _v._ Oklahoma, 322 U.S. 596, 601 (1944), the Court stated that "when the State-approved instruction (to the jury) fairly raises the question of whether or not the challenged confession was voluntary, * * *, the requirements of due process, * * *, are satisfied and this Court will not require a modification of local practice to meet views that it might have as to * * * how specific an instruction * * * must be." In Malinski _v._ New York, the four dissenting Justices declared that "the trial court, * * *, instructed the jury that the evidence with respect to the first confession was adduced only to show that the second was coerced. And * * * that it could consider the second confession, only if it found it voluntary, and that it could convict in that case. In view of these instructions, we cannot say that the first confession was submitted to the jury, or that in the absence of any exception or request to charge more particularly, there was any error, of which the * * * [accused] can complain."--324 U.S. 401, 437 (1945). [896] The coercive nature of the first oral confession was apparently acknowledged by the prosecuting attorney in his summation to the jury; for he declared that the accused "was not hard to break," and that the purpose of holding him _incommunicado_ and unclothed in a hotel room from 8 a.m. to 6 p.m., when the confession was made, was to "let him think that he is going to get a shellacking (beating)."--324 U.S. 401, 407 (1945). [897] 332 U.S. 46, 56 (1947). [898] 211 U.S. 78 (1908). [899] 302 U.S. 319 (1937). [900] Adamson _v._ California, 332 U.S. 46, 50, 53, 56, 58 (1947). [901] Adamson _v._ California, 332 U.S. 46, 59-60, 63-64, 66 (1947). _See also_ Malinski _v._ New York, 324 U.S. 401, 414, 415, 417 (1945). [902] Adamson _v._ California, 332 U.S. 46, 69, 74-75, 89 (1947).--Dissenting separately, Justice Murphy, together with Justice Rutledge, announced their agreement with Justice Black, subject to one reservation. While agreeing "that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment," they were "not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant * * * condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights."--Ibid. 124. In a lengthy article based upon a painstaking examination of original data pertaining to the "understanding of the import of the * * * clauses of Section 1 of the Fourteenth Amendment at the time the Amendment was adopted"; that is, during the period 1866-1868, Professor Charles Fairman has marshalled a "mountain of evidence" calculated to prove conclusively the inaccuracy of Justice Black's reading of history.--Charles Fairman. Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding.--2 Stanford Law Review, 5-139 (1949). [903] 332 U.S. 596 (1948). [904] Ibid. 600-601.--In a dissenting opinion, in which Chief Justice Vinson and Justices Jackson and Reed concurred, Justice Burton remarked that inasmuch as the issue of the voluntariness of the confession was one of fact, turning largely on the credibility of witnesses, the determination thereof by the trial judge and jury should not be overturned upon mere conjecture.--Ibid. 607, 615. [905] 332 U.S. 742, 745 (1948). [906] 335 U.S. 252 (1948). [907] The Court also held that the procedure of Alabama, in requiring the accused to obtain permission from an appellate court before filing a petition in a trial court for a writ of error _coram nobis_ was consistent with due process. Alabama was deemed to possess "ample machinery for correcting the Constitutional wrong of which the * * * [accused] complained."--Ibid. 254, 260-261. [908] The accused, in his petition, neither denied his guilt nor any of the acts on which his conviction was based. He simply contended that because of fear generated by coercive police methods applied to him, he had concealed such evidence from his own counsel at the time of the trial and had informed the latter that his confessions were voluntary. His charges of duress were supported by affidavits of three associates in crime, none of whom claims to have seen the alleged beatings of the petitioner.--Ibid. 265-266. [909] In a dissenting opinion, in which Justices Douglas and Rutledge concurred, Justice Murphy maintained that inasmuch as there was some evidence to substantiate the petitioner's claim, the latter should have been allowed a hearing in the trial court. According to Justice Murphy, a conviction based on a coerced confession is "void even though the confession is in fact true" and the petitioner is guilty. Justice Frankfurter criticized this dissenting opinion as having been "written as though this Court was a court of criminal appeals for revision of convictions in the State courts."--Ibid. 272, 275-276. [910] 338 U.S. 49 (1949). [911] 338 U.S. 62, 64 (1949). [912] 338 U.S. 68 (1949). [913] Watts _v._ Indiana, 338 U.S. 49, 53 (1949). [914] 309 U.S. 227 (1940). [915] 322 U.S. 143 (1944). [916] Watts _v._ Indiana, 338 U.S. 49, 57 (1949); citing Malinski _v._ New York, 324 U.S. 401 (1945); Haley _v._ Ohio, 332 U.S. 596 (1948). [917] 338 U.S. 49, 60 (1949). [918] 338 U.S. 62 (1949). [919] 338 U.S. 68 (1949). [920] 338 U.S. 49, 61 (1949). In the 1949, 1950, and 1951 terms only one case arose which involved the forced confession issue in any significant way. This was Rochin _v._ California, 342 U.S. 165 (1952), which is discussed immediately below in another connection. _See also_ Jennings _v._ Illinois, 342 U.S. 104 (1951); and Stroble _v._ California, 343 U.S. 181 (1952), in which diverse, but not necessarily conflicting, results were reached. [921] 232 U.S. 58 (1914). [922] Consolidated Rendering Co. _v._ Vermont, 207 U.S. 541, 552 (1908); Hammond Packing Co. _v._ Arkansas, 212 U.S. 322, 348 (1909). [923] Wolf _v._ Colorado, 338 U.S. 25 (1949). [924] 332 U.S. 46 (1947). [925] 302 U.S. 319 (1937). [926] 338 U.S. 25, 27-28 (1949). [927] Ibid. 28-31.--In harmony with his views, as previously stated in Malinski _v._ New York, 324 U.S. 401 (1945) and Adamson _v._ California, 332 U.S. 46, 59-66 (1947), Justice Frankfurter amplified his appraisal of the due process clause as follows: "Due process of law * * * conveys neither formal nor fixed nor narrow requirements. It is the compendius expression for all those rights which the courts must enforce because they are basic to our free society. But basic rights do not become petrified as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits of the essentials of fundamental rights. To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but ignores the movements of a free society. * * * The real clue to the problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and for all to be drawn but to recognize that it is for the Court to draw it by the gradual and empiric process of 'inclusion and exclusion.'"--Ibid. 27. [928] 332 U.S. 46, 68, 71-72 (1947). [929] Wolf _v._ Colorado, 338 U.S. 25, 39-40 (1949). [930] Ibid. 40, 41, 44, 46, 47. [931] Stefanelli _v._ Minard, 342 U.S. 117 (1951); Rochin _v._ California, 342 U.S. 165 (1952). [932] 342 U.S. 117, 123. [933] 342 U.S. 105, 168, citing Malinski _v._ New York, 324 U.S. 401, 412, 418 (1945). [934] Ibid., 174. [935] 332 U.S. 46, 68-123 (1947). "Of course", said Justice Douglas, citing Holt _v._ United States, 218 U.S. 245, 252-253 (1910), "an accused can be compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat." 342 U.S. at 179. _See_ the Self-incrimination Clause of Amendment V. [936] Mooney _v._ Holohan, 294 U.S. 103, 112 (1935). [937] Ibid. 110.--Because judicial process adequate to correct this alleged wrong was believed to exist in California and had not been fully invoked by Mooney, the Court denied his petition. Subsequently, a California court appraised the evidence offered by Mooney and ruled that his allegations had not been established.--Ex parte Mooney, 10 Cal. (2d) 1, 73 P (2d) 554 (1937); certiorari denied, 305 U.S. 598 (1938). Mooney later was pardoned by Governor Olson.--New York Times, January 8, 1939. [938] 315 U.S. 411 (1942). [939] 317 U.S. 213 (1942). [940] 324 U.S. 760 (1945). _See also_ New York ex rel. Whitman _v._ Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1944). [941] 315 U.S. 411, 413, 421-422 (1942).--Justice Black, together with Justices Douglas and Murphy, dissented on the ground that the Florida court, "with intimations of approval" by the majority, had never found it necessary to pass on the credibility of Hysler's allegations, but had erroneously declared that all his allegations, even if true and fully known to the trial court, would not have precluded a conviction. In an earlier case, Lisenba _v._ California, 314 U.S. 219 (1941), the Court, without discussion of this principle relating to the use of perjured testimony, sustained a California appellate court's denial of a petition for _habeas corpus_. The accused, after having been convicted and sentenced to death for murder, filed his petition supported by affidavits of a codefendant, who, after pleading guilty and serving as a witness for the State had received a life sentence. The latter affirmed that his testimony at the trial of the petitioner "was obtained by deceit, fraud, collusion, and coercion, and was known to the prosecutor to be false." Even though the California court had denied the petition for _habeas corpus_ without taking oral evidence and without requiring the State to answer, the Supreme Court upheld this action on the ground that there was no adequate showing of a corrupt bargain between the prosecution and the codefendant and that the appraisal of conflicting evidence was for the Court below. Even if latter's refusal to believe the codefendant's depositions were erroneous, such error, the Court added, would not amount to a denial of due process. [942] 317 U.S. 213, 216 (1942). [943] 324 U.S. 760 (1945). Certiorari was denied, however, for the reason that the State court's refusal to issue the writ of _habeas corpus_ was based upon an adequate nonfederal ground. [944] Schwab _v._ Berggren, 143 U.S. 442, 448 (1802).--This statement is a dictum, however; for the issue presented by the accused's petition for a writ of _habeas corpus_ was that the State appellate court had denied him due process in ruling on his appeal from his conviction in the absence of both the petitioner and his counsel and without notice to either as to the date of its decision. Insofar as a right to be present exists, its application, the Supreme Court maintained, is limited to courts of original jurisdiction trying criminal cases. [945] Howard _v._ Kentucky, 200 U.S. 164 (1906). [946] 201 U.S. 123, 130 (1906). [947] 237 U.S. 309, 343 (1915). [948] Snyder _v._ Massachusetts, 291 U.S. 97 (1934). [949] Ibid. 105, 106, 107, 108, 118.--In a dissent, in which Justices Brandeis, Butler, and Sutherland concurred, Justice Roberts insisted that "it * * * [was] not a matter of assumption but a certainty * * * [that] * * * the * * * privilege of the accused to be present throughout his trial is of the very essence of due process," and, in that connection, "the great weight of authority is that" the view by the jury "forms part of the trial." Even if "the result would have been the same had the [accused] been present, still the denial of the constitutional right ought not to be condoned. * * * Nor ought this Court to convert the inquiry from one as to the denial of the right into one as to the prejudice suffered by the denial. To pivot affirmance on the question of the amount of harm done the accused is to beg the constitutional question involved. * * * The guarantee of the Fourteenth Amendment is not that a just result shall have been obtained, but that the result, whatever it be, shall be reached in a fair way."--Ibid. 130-131, 134, 136-137. [950] 337 U.S. 241 (1949). [951] Ibid. 246-247, 249-250.--Dissenting, Justice Murphy maintained that the use in a capital case of probation reports which "concededly [would] not have been admissible at the trial, and * * * [were] not subject to examination by the defendant, * * *" violated "the high commands of due process * * *"--Ibid. 253. Justice Rutledge dissented without an opinion. [952] 339 U.S. 9 (1950). [953] Ibid. 12-13.--Disagreeing, Justice Frankfurter contended that a State is "precluded by the due process clause from executing a man who has temporarily or permanently become insane"; and thus bereft of unlimited discretion as to "how it will ascertain sanity," a State "must afford rudimentary safeguards for establishing [that] fact."--Ibid. 16, 19, 21, 24-25. [954] In re Oliver, 333 U.S. 257 (1948). On application for _habeas corpus_, the prisoner's commitment was reviewed by the Michigan appellate court in the light, not of the whole record, but only of fragmentary excerpts showing merely the testimony alleged to be false and evasive. In a concurring opinion, Justice Rutledge advocated disposing of the case on the ground that the Michigan one-man grand jury system was in its entirety in conflict with the requirements of due process. On the ground that the Michigan courts had not passed on the constitutionality of the procedure at issue, Justices Frankfurter and Jackson dissented and urged the remanding of the case. _See also_ Gaines _v._ Washington, 277 U.S. 81, 85 (1928). [955] 336 U.S. 155 (1949). [956] Justice Douglas, with Justice Black concurring, dissented on the ground that even if "such elements of misbehavior as expression, manner of speaking, bearing, and attitude * * * [had] a contemptuous flavor. * * * freedom of speech should [not] be so readily sacrificed in a courtroom." Stressing that the trial judge penalized Fisher only for his forbidden comment and not for his behavior, and that it took a ruling of the Texas appellate court to settle the issue whether such comment was improper under Texas practice, Justice Douglas concluded that the record suggests only that "the judge picked a quarrel with this lawyer and used his high position to wreak vengeance." There having been no substantial obstruction of the trial, Justice Murphy believed that the trial judge's use of his power was inconsistent with due process; whereas Justice Rutledge, in dissenting, contended "there can be no due process in trial in the absence of calm judgment and action, untinged with anger, from the bench."--Ibid. 165-166, 167, 169. [957] Tumey _v._ Ohio, 273 U.S. 510 (1927). _See also_ Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912). [958] "Unless the costs usually imposed are so small that they may be properly ignored as within the maxim _de minimis non curat lex_."--_See_ Tumey _v._ Ohio, 273 U.S. 510, 523, 531 (1927). [959] Dugan _v._ Ohio, 277 U.S. 61 (1928). [960] Frank _v._ Mangum, 237 U.S. 309, 335 (1915). [961] Moore _v._ Dempsey, 261 U.S. 86, 91 (1923). [962] Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946). _See also_ Fay _v._ New York, 332 U.S. 261 (1947), _supra_ p. 1110. [Transcriber's Note: Reference is to Footnote 873, above.] [963] Snyder _v._ Massachusetts, 291 U.S. 97, 116, 117 (1934). [964] Lisenba _v._ California, 314 U.S. 219, 236 (1941). [965] Buchalter _v._ New York, 319 U.S. 427, 429 (1943). The Court also declared that the due process clause did "not draw to itself the provisions of State constitutions or State laws." [966] Powell _v._ Alabama, 287 U.S. 45, 68 (1932); Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934). [967] Cole _v._ Arkansas, 333 U.S. 196, 202 (1948). _See also_ Williams _v._ North Carolina, 317 U.S. 287, 292 (1942), wherein the Court also stated that where a conviction in a criminal prosecution is based upon a general verdict that does not specify the ground on which it rests, and one of the grounds upon which it may rest is invalid under the Constitution, the judgment cannot be sustained. [968] Paterno _v._ Lyons, 334 U.S. 314, 320-321 (1948). [969] McKane _v._ Durston, 153 U.S. 684 (1894).--The prohibition of the requirement of excessive bail, expressed in the Eighth Amendment as a restraint against the Federal Government, has never been deemed to be applicable to the States by virtue of the due process clause of the Fourteenth Amendment. However, in a recent civil suit, a United States District Court judge asserted his belief, by way of dictum, that protection against "unreasonable searches and seizures, invasion of freedom of speech and press, unlawful and unwarranted incarcerations, arrests, and _failure to allow reasonable bail_ would all be fundamental rights protected by [the Fourteenth] Amendment from State invasion."--International Union, Etc. _v._ Tennessee Copper Co., 31 F. Supp. 1015 (1940). [970] Collins _v._ Johnston, 237 U.S. 502, 510 (1915).--In affirming a judgment obtained by Texas in a civil suit to recover penalties for violation of its antitrust law, the Supreme Court proffered the following vague standard for determining the validity of penalties levied by States. "The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the State. We can only interfere with such legislation and judicial action of the States enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law." However, a fine of $1,600,000 levied in this case against a corporation having assets of $40,000,000 and paying out dividends as high as 700%, and which was shown to have profited from its wrong doing was not considered to be excessive.--Waters-Pierce Oil Co. _v._ Texas, 212 U.S. 86, 111 (1909). [971] Graham _v._ West Virginia, 224 U.S. 616, 623 (1912). _See also_ Ughbanks _v._ Armstrong, 208 U.S. 481, 498 (1908). [972] 136 U.S. 436, 447-448 (1890). [973] 329 U.S. 459 (1947). [974] Concurring in the result, Justice Frankfurter concentrated on the problem suggested by the proposed absorption of the Bill of Rights by the due process clause of the Fourteenth Amendment, and restated his previously disclosed position as follows: "Not until recently was it suggested that the Due Process Clause of the Fourteenth Amendment was merely a compendious reference to the Bill of Rights whereby the States were now restricted in devising and enforcing their penal code precisely as is the Federal Government by the first eight amendments. On this view, the States would be confined in the enforcement of their criminal codes by those views for safeguarding the rights of the individual which were deemed necessary in the eighteenth century. Some of these safeguards have perduring validity. Some grew out of transient experience or formulated remedies which time might well improve. The Fourteenth Amendment did not mean to imprison the States into the limited experience of the eighteenth century. It did mean to withdraw from the States the right to act in ways that are offensive to a decent respect for the dignity of man, and heedless of his freedom. "These are very broad terms by which to accommodate freedom and authority. As has been suggested * * *, they may be too large to serve as the basis for adjudication in that they allow much room for individual notions of policy. That is not our concern. The fact is that the duty of such adjudication on a basis no less narrow has been committed to this Court. "In an impressive body of decisions this Court has decided that the Due Process Clause of the Fourteenth Amendment expresses a demand for civilized standards which are not defined by the specifically enumerated guarantees of the Bill of Rights. They neither contain the particularities of the first eight amendments nor are they confined to them. * * * Insofar as due process under the Fourteenth Amendment requires the States to observe any of the immunities 'that are as valid as against the Federal Government by force of the specific pledges of particular amendments' it does so because they 'have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the States,'" [citing Palko _v._ Connecticut, 302 U.S. 319, 324, 325 (1937).]--Ibid. 467-469. Justice Burton, with whom Justices Murphy, Douglas, and Rutledge were associated, dissented on the grounds that "the proposed repeated, and at least second, application to the * * * [defendant] of an electric current sufficient to cause death is * * *, a cruel and unusual punishment violative of due process of law."--Ibid. 479. In Solesbee _v._ Balkcom, 339 U.S. 9 (1950), the Court declined to intervene in case coming up from Georgia in which appellant, claiming that he had become insane following conviction and sentence of death, sought a postponement of execution from the governor of the State. Justice Frankfurter dissented, asserting that the due process clause of Amendment XIV prohibits a State from executing an insane convict. [975] 187 U.S. 71, 86 (1902). _See also_ Keerl _v._ Montana, 213 U.S. 135 (1909). [976] 177 U.S. 155 (1900). [977] 207 U.S. 188 (1907). [978] Graham _v._ West Virginia, 224 U.S. 616, 623 (1912). [979] 302 U.S. 319 (1937). [980] In a lengthy dictum, Justice Cardozo, speaking for the Court, rejected the defendant's view that "Whatever would be a violation of the original bill of rights (Amendments One to Eight) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state." By a selective process of inclusion and exclusion, he conceded that "the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress, * * * or the like freedom of the press, * * * or the free exercise of religion, * * * or the right of peaceable assembly * * *, or the right of one accused of crime to the benefit of counsel." However, insofar as such "immunities, [which] are valid as against the Federal Government by force of the specific pledges of particular amendments, have become valid as against the States," that result is attributable, not to the absorption by the due process clause of the Fourteenth Amendment of particular provisions of the Bill of Rights, but to the fact that such immunities "have been found to be implicit in the concept of ordered liberty * * *" protected by that clause.--Ibid. 323, 324-325. [981] Justice Butler dissented without an opinion. [982] 320 U.S. 459, 462, 463 (1947).--In line with its former ruling in Graham _v._ West Virginia, 224 U.S. 616 (1912), the Court reiterated in Gryger _v._ Burke, 334 U.S. 728 (1948), that a life sentence imposed on a fourth offender under a State habitual criminal act is a stiffened penalty for his latest offense, which is considered to be an aggravated offense because a repetitive one, and is therefore not invalid as subjecting the offender to a new jeopardy. [983] Ex parte Hull, 312 U.S. 546 (1941). [984] White _v._ Ragen, 324 U.S. 760 n. 1 (1945). [985] McKane _v._ Durston, 153 U.S. 684, 687 (1894); Andrews _v._ Swartz 156 U.S. 272, 275 (1895); Murphy _v._ Massachusetts, 177 U.S. 155, 158 (1900); Reetz _v._ Michigan, 188 U.S. 505, 508 (1903). [986] Thus, where on the day assigned for hearing of a writ of error, it appeared that the accused had escaped from jail, the Court, without denial of due process, could order that the writ be dismissed unless the accused surrender himself within 60 days or be captured.--Allen _v._ Georgia, 166 U.S. 138 (1897). [987] Carter _v._ Illinois, 329 U.S. 173, 175-176 (1946). [988] Frank _v._ Mangum, 237 U.S. 309 (1915). [989] For rules of self-limitation formulated by the Court not only to minimize its opportunities for such interference but also to curtail the volume of litigation reaching it for final disposition, _see_ p. 1109. [990] 297 U.S. 278 (1936). [991] 237 U.S. 309 (1915). [992] 261 U.S. 86 (1923). [993] Despite the court's contention that Moore _v._ Dempsey was disposed of in conformity with the principles enunciated in Frank _v._ Mangum, the two decisions are distinguishable not only by the different results reached therein, but by the fact that the State appellate court in Frank _v._ Mangum had ruled that the trial court had correctly concluded, on the basis of the evidence submitted, that the allegations of mob violence were unsubstantiated whereas the Arkansas appellate court, in Moore _v._ Dempsey, conceded a similar allegation to be correct but did not deem it sufficient to render the trial a nullity. Although in the later case, Arkansas demurred and thereby admitted the allegations supporting the _habeas corpus_ petition to be true, that fact is a lesser significance, for even in Frank _v._ Mangum, the Supreme Court abided by the rule that the writ of _habeas corpus_ relates to matters of substance and not of mere form, and declared that the petitioner's allegations should be treated as if conceded by the sheriff having custody of the petitioner.--237 U.S. 309, 332, 346 (1915). [994] James _v._ Appel, 192 U.S. 129, 137 (1904); Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894); Standard Oil Co. _v._ Missouri ex rel. Hadley, 224 U.S. 270, 286 (1912); Baldwin _v._ Iowa State Traveling Men's Assoc., 283 U.S. 522, 524 (1931). [995] Tracy _v._ Ginzberg, 205 U.S. 170 (1907); Allen _v._ Georgia, 166 U.S. 138, 140 (1897); Fallbrook Irrig. District _v._ Bradley, 164 U.S. 112, 157 (1896). [996] Thorington _v._ Montgomery, 147 U.S. 490, 492 (1893). [997] Cross _v._ North Carolina, 132 U.S. 131 (1889). [998] Ballard _v._ Hunter, 204 U.S. 241, 258 (1907); Lyons _v._ Oklahoma, 322 U.S. 596 (1944); Gryger _v._ Burke, 334 U.S. 728 (1948). [999] McDonald _v._ Oregon R. & Nav. Co., 233 U.S. 665, 670 (1914). [1000] Caldwell _v._ Texas, 137 U.S. 691, 692, 698 (1891); Bergemann _v._ Backer, 157 U.S. 655, 656 (1895). [1001] Rogers _v._ Peck, 199 U.S. 425, 435 (1905). [1002] West _v._ Louisiana, 194 U.S. 258 (1904). [1003] Chicago L. Ins. Co. _v._ Cherry, 244 U.S. 25, 30 (1917). [1004] Standard Oil Co. _v._ Missouri ex rel. Hadley, 224 U.S. 270, 287 (1912); Patterson _v._ Colorado ex rel. Attorney General, 205 U.S. 454, 461 (1907); Stockholders _v._ Sterling, 300 U.S. 175, 182 (1937) [1005] Virginia _v._ Rives, 100 U.S. 313, 318 (1880). [1006] Minneapolis & St. L.R. Co. _v._ Beckwith, 129 U.S. 26, 28, 29 (1889). [1007] Yick Wo _v._ Hopkins, 118 U.S. 356, 373, 374 (1886). [1008] Snowden _v._ Hughes, 321 U.S. 1, 8 (1944). [1009] Truax _v._ Corrigan, 257 U.S. 312 (1921). [1010] Neal _v._ Delaware, 103 U.S. 370 (1881). [1011] Shelley _v._ Kraemer, 334 U.S. 1 (1948). [1012] Ibid. 19. [1013] Missouri ex rel. Gaines _v._ Canada, 305 U.S. 337, 343 (1938). [1014] Smith _v._ Allwright, 321 U.S. 649 (1944). _Cf._ Nixon _v._ Herndon, 273 U.S. 536 (1927); Nixon _v._ Condon, 286 U.S. 73 (1932); Grovey _v._ Townsend, 295 U.S. 45 (1938). [1015] Slaughter-House Cases, 16 Wall. 36, 81 (1873). [1016] Chicago, B. & Q.R. Co. _v._ Iowa, 94 U.S. 155 (1877); Peik _v._ Chicago & Northwestern R. Co., 94 U.S. 164 (1877); Chicago, M. & St. P.R. Co. _v._ Ackley, 94 U.S. 179 (1877); Winona & St. P.R. Co. _v._ Blake, 94 U.S. 180 (1877). [1017] Santa Clara County _v._ Southern P.R. Co., 118 U.S. 394 (1886). The ruling stood unchallenged until 1938 when Justice Black asserted in a dissenting opinion that "I do not believe the word 'person' in the Fourteenth Amendment includes corporations." Connecticut General Life Insurance Co. _v._ Johnson, 303 U.S. 77, 85 (1938). More recently Justice Douglas expressed the same view in a dissenting opinion in which Justice Black concurred. Wheeling Steel Corporation _v._ Glander, 337 U.S. 562, 576 (1949). [1018] Yick Wo _v._ Hopkins, 118 U.S. 356, 369 (1886). [1019] Newark _v._ New Jersey, 262 U.S. 192 (1923); Williams _v._ Baltimore, 289 U.S. 36 (1933). [1020] _Cf._ Hillsborough _v._ Cromwell, 326 U.S. 620 (1846). [1021] Blake _v._ McClung, 172 U.S. 239, 261 (1898); Sully _v._ American Nat. Bank, 178 U.S. 289 (1900). [1022] Kentucky Finance Corp. _v._ Paramount Auto Exchange Corp., 262 U.S. 544 (1923). [1023] Hillsborough _v._ Cromwell, 326 U.S. 620 (1946). [1024] Wheeling Steel Corp. _v._ Glander, 337 U.S. 562 (1949); Hanover Insurance Co. _v._ Harding, 272 U.S. 494 (1926). [1025] Fire Asso. of Philadelphia _v._ New York, 119 U.S. 110 (1886). [1026] Yick Wo _v._ Hopkins, 118 U.S. 356, 369 (1886). [1027] Barbier _v._ Connolly, 113 U.S. 27, 31 (1885). [1028] Ibid. 31-32. [1029] Truax _v._ Corrigan, 257 U.S. 312, 332-333 (1921). [1030] Barrett _v._ Indiana, 229 U.S. 26 (1913). [1031] Watson _v._ Maryland, 218 U.S. 173 (1910). [1032] Orient Ins. Co. _v._ Daggs, 172 U.S. 557, 562 (1899). [1033] Bachtel _v._ Wilson, 204 U.S. 36, 41 (1907). _See also_ Frost _v._ Corporation Commission, 278 U.S. 515, 522 (1929); Smith _v._ Cahoon, 283 U.S. 553, 566-567 (1931). [1034] Lindsley _v._ Natural Carbonic Gas Co., 220 U.S. 61 (1911). [1035] Middleton _v._ Texas Power & Light Co., 249 U.S. 152, 157 (1919); Madden _v._ Kentucky, 309 U.S. 83 (1940). [1036] Crescent Cotton Oil Co. _v._ Mississippi, 257 U.S. 129, 137 (1921). [1037] West Coast Hotel Co. _v._ Parrish, 300 U.S. 379, 400 (1937). [1038] Lindsley _v._ Natural Carbonic Gas Co., 220 U.S. 61, 81 (1911). _Cf._ United States _v._ Petrillo, 332 U.S. 1, 8 (1947). [1039] Dominion Hotel _v._ Arizona, 249 U.S. 265, 268 (1919). [1040] West Coast Hotel _v._ Parrish, 300 U.S. 379, 400 (1937). [1041] Dominion Hotel _v._ Arizona, 249 U.S. 265, 268 (1919). [1042] Watson _v._ Maryland, 218 U.S. 173, 179 (1910). [1043] Phelps _v._ Board of Education, 300 U.S. 319, 324 (1937). [1044] Chicago Dock & Canal Co. _v._ Fraley, 228 U.S. 680, 687 (1913). [1045] Davidson _v._ New Orleans, 96 U.S. 97, 106 (1878). [1046] Fire Asso. of Philadelphia _v._ New York, 119 U.S. 110 (1886); Santa Clara County _v._ Southern P.R. Co., 118 U.S. 394 (1886). [1047] Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232, 237 (1890). (Emphasis supplied.) [1048] Louisville Gas & E. Co. _v._ Coleman, 277 U.S. 32, 37 (1928). Classification for purposes of taxation has been held valid in the following situations: _Banks:_ a heavier tax on banks which make loans mainly from money of depositors than on other financial institutions which make loans mainly from money supplied otherwise than by deposits. First Nat. Bank _v._ Louisiana Tax Commission, 289 U.S. 60 (1933). _Bank deposits:_ a tax of 50¢ per $100 on deposits in banks outside a State in contrast with a rate of 10¢ per $100 on deposits in the State. Madden _v._ Kentucky, 309 U.S. 83 (1940). _Coal:_ a tax of 2-1/2 percent on anthracite but not on bituminous coal. Heisler _v._ Thomas Colliery Co., 260 U.S. 245 (1922). _Gasoline:_ a graduated severance tax on oils sold primarily for their gasoline content, measured by resort to Baumé gravity. Ohio Oil Co. _v._ Conway, 281 U.S. 146 (1930). _Chain stores:_ a privilege tax graduated according to the number of stores maintained, State Tax Comr's. _v._ Jackson, 283 U.S. 527 (1931); Fox _v._ Standard Oil Co., 294 U.S. 87 (1935); a license tax based on the number of stores both within and without the State, Great A. & P. Tea Co. _v._ Grosjean, 301 U.S. 412 (1937). _Electricity:_ municipal systems may be exempted, Puget Sound Power & Light Co. _v._ Seattle, 291 U.S. 619 (1934); that portion of electricity produced which is used for pumping water for irrigating lands may be exempted, Utah Power & Light Co. _v._ Pfost, 286 U.S. 165 (1932). _Insurance companies:_ license tax measured by gross receipts upon domestic life insurance companies from which fraternal societies having lodge organizations and insuring lives of members only are exempt, and similar foreign corporations are subject to a fixed and comparatively slight fee for the privilege of doing local business of the same kind. Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 247 U.S. 132 (1918). _Oleomargarine:_ classified separately from butter. Magnano Co. _v._ Hamilton, 292 U.S. 40 (1934). _Peddlers:_ classified separately from other vendors. Caskey Baking Co. _v._ Virginia, 313 U.S. 117 (1941). _Public utilities:_ a gross receipts tax at a higher rate for railroads than for other public utilities, Ohio Tax Cases, 232 U.S. 576 (1914); a gasoline storage tax which places a heavier burden upon railroads than upon common carriers by bus, Nashville C. & St. L. Co. _v._ Wallace, 288 U.S. 249 (1933); a tax on railroads measured by gross earnings from local operations, as applied to a railroad which received a larger net income than others from the local activity of renting, and borrowing cars, Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940); a gross receipts tax applicable only to public utilities, including carriers, the proceeds of which are used for relieving the unemployed, New York Rapid Transit Corp. _v._ New York, 303 U.S. 573 (1938). _Wine:_ exemption of wine from grapes grown in the State while in the hands of the producer. Cox _v._ Texas, 202 U.S. 446 (1906). Laws imposing miscellaneous license fees have been upheld as follows: _Cigarette dealers:_ taxing retailers and not wholesalers. Cook _v._ Marshall County, 196 U.S. 261 (1905). _Commission merchants:_ requirements that dealers in farm products on commission procure a license, Payne _v._ Kansas, 248 U.S. 112 (1918). _Elevators and warehouses:_ license limited to certain elevators and warehouses on right-of-way of railroad, Cargill Co. _v._ Minnesota, 180 U.S. 452 (1901); a license tax applicable only to commercial warehouses where no other commercial warehousing facilities in township subject to tax, Independent Warehouse Inc. _v._ Scheele, 331 U.S. 70 (1947). _Laundries:_ exemption from license tax of steam laundries and women engaged in the laundry business where not more than two women are employed. Quong Wing _v._ Kirkendall, 223 U.S. 59 (1912). _Merchants:_ exemption from license tax measured by amount of purchases, of manufacturers within the State selling their own product. Armour & Co. _v._ Virginia, 246 U.S. 1 (1918). _Sugar refineries:_ exemption from license applicable to refiners of sugar and molasses of planters and farmers grinding and refining their own sugar and molasses. American Sugar Refining Co. _v._ Louisiana, 179 U.S. 89 (1900). _Theaters:_ license graded according to price of admission. Metropolis Theatre Co. _v._ Chicago, 228 U.S. 61 (1913). _Wholesalers of oil:_ occupation tax on wholesalers in oil not applicable to wholesalers in other products. Southwestern Oil Co. _v._ Texas, 217 U.S. 114 (1910). [1049] Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232, 237 (1890). [1050] Quong Wing _v._ Kirkendall, 223 U.S. 59, 62 (1912). _See also_ Hammond Packing Co. _v._ Montana, 233 U.S. 331 (1914). [1051] Puget Sound Power & Light Co. _v._ Seattle, 291 U.S. 619, 625 (1934). [1052] Colgate _v._ Harvey, 296 U.S. 404, 422 (1935). [1053] Southern R. Co. _v._ Greene, 216 U.S. 400, 417 (1910); Quaker City Cab Co. _v._ Pennsylvania, 277 U.S. 389, 400 (1928). [1054] Keeney _v._ New York, 222 U.S. 525, 536 (1912); State Tax Comrs. _v._ Jackson, 283 U.S. 527, 538 (1931). [1055] Giozza _v._ Tiernan, 148 U.S. 657, 662 (1893). [1056] Louisville Gas & E. Co. _v._ Coleman, 277 U.S. 32, 37 (1928). _See also_ Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232, 237 (1890). [1057] Stewart Dry Goods Co. _v._ Lewis, 294 U.S. 550 (1935). _See also_ Valentine _v._ Great A. & P. Tea Co., 299 U.S. 32 (1936). [1058] Liggett Co. _v._ Lee, 288 U.S. 517 (1933). [1059] Quaker City Cab Co. _v._ Pennsylvania, 277 U.S. 389 (1928). [1060] State Tax Comrs. _v._ Jackson, 283 U.S. 527, 537 (1931). [1061] Colgate _v._ Harvey, 296 U.S. 404, 422 (1935). [1062] Darnell _v._ Indiana, 226 U.S. 390, 398 (1912); Farmers & M. Sav. Bank _v._ Minnesota, 232 U.S. 516, 531 (1914). [1063] Morf _v._ Bingaman, 298 U.S. 407, 413 (1936). [1064] Baltic Min. Co. _v._ Massachusetts, 231 U.S. 68, 88 (1913). _See also_ Cheney Bros. Co. _v._ Massachusetts, 246 U.S. 147, 157 (1918). [1065] Fire Asso. of Philadelphia _v._ New York, 119 U.S. 110, 119 (1886). [1066] Hanover F. Ins. Co. _v._ Harding, 272 U.S. 494, 511 (1926). [1067] Southern R. Co. _v._ Greene, 216 U.S. 400, 418 (1910). [1068] Concordia F. Ins. Co. _v._ Illinois, 292 U.S. 535 (1934). [1069] Lincoln Nat. Life Ins. Co. _v._ Read, 325 U.S. 673 (1945). [1070] Wheeling Steel Corp. _v._ Glander, 337 U.S. 562, 571, 572 (1949). [1071] Royster Guano Co. _v._ Virginia, 253 U.S. 412 (1920). [1072] Shaffer _v._ Carter, 252 U.S. 37, 56, 57 (1920); Travis _v._ Yale & T. Mfg. Co., 252 U.S. 60, 75, 76 (1920). [1073] Welch _v._ Henry, 305 U.S. 134 (1938). [1074] Magoun _v._ Illinois Trust & Sav. Bank, 170 U.S. 283, 288, 300 (1898). [1075] Billings _v._ Illinois, 188 U.S. 97 (1903). [1076] Campbell _v._ California, 200 U.S. 87 (1906). [1077] Salomon _v._ State Tax Commission, 278 U.S. 484 (1929). [1078] Board of Education _v._ Illinois, 203 U.S. 553 (1906). [1079] Maxwell _v._ Bugbee, 250 U.S. 525 (1919). [1080] Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932). [1081] Dixie Ohio Express Co. _v._ State Revenue Commission, 306 U.S. 72, 78 (1939). [1082] Alward _v._ Johnson, 282 U.S. 509 (1931). [1083] Bekins Van Lines _v._ Riley, 280 U.S. 80 (1929). [1084] Morf _v._ Bingaman, 298 U.S. 407 (1936). [1085] Clark _v._ Paul Gray, Inc., 306 U.S. 583 (1939). [1086] Carley & Hamilton _v._ Snook, 281 U.S. 66 (1930). [1087] Aero Mayflower Transit Co. _v._ Georgia Pub. Serv. Commission, 295 U.S. 285 (1935). [1088] Breedlove _v._ Suttles, 302 U.S. 277 (1937). [1089] Royster Guano Co. _v._ Virginia, 253 U.S. 412, 415 (1920). [1090] Missouri _v._ Dockery, 191 U.S. 165 (1903). [1091] Kentucky Union Co. _v._ Kentucky, 219 U.S. 140, 161 (1911). [1092] Sunday Lake Iron Co. _v._ Wakefield Twp., 247 U.S. 350 (1918); Raymond _v._ Chicago Union Traction Co., 207 U.S. 20, 35, 37 (1907). [1093] Coulter _v._ Louisville & N.R. Co., 196 U.S. 599 (1905). _See also_ Chicago, B. & Q.R. Co. _v._ Babcock, 204 U.S. 585 (1907). [1094] Charleston Assn. _v._ Alderson, 324 U.S. 182 (1945). Nashville, C. & St. L. Ry. _v._ Browning, 310 U.S. 362 (1940). [1095] Sioux City Bridge Co. _v._ Dakota County, 260 U.S. 441, 446 (1923). [1096] Hillsborough _v._ Cromwell, 326 U.S. 620, 623 (1946). [1097] St. Louis-San Francisco R. Co. _v._ Middlekamp, 256 U.S. 226, 230 (1921). [1098] Memphis & C.R. Co. _v._ Pace, 282 U.S. 241 (1931). [1099] Kansas City Southern R. Co. _v._ Road Improv. Dist., 256 U.S. 658 (1921); Thomas _v._ Kansas City Southern R. Co., 261 U.S. 481 (1923). [1100] Road Improv. Dist. _v._ Missouri P.R. Co., 274 U.S. 188 (1927). [1101] Branson _v._ Bush, 251 U.S. 182 (1919). [1102] Columbus & G.R. Co. _v._ Miller, 283 U.S. 96 (1931). [1103] Buck _v._ Bell, 274 U.S. 200, 208 (1927). [1104] Classifications under police regulations have been held valid in the following situations: _Advertising:_ discrimination between billboard and newspaper advertising of cigarettes, Packer Corp. _v._ Utah, 285 U.S. 105 (1932); prohibition of advertising signs on motor vehicles, except when used in the usual business of the owner, and not used mainly for advertising, Fifth Ave. Coach Co. _v._ New York, 221 U.S. 467 (1911); prohibition of advertising on motor vehicles except notices or advertising of products of the owner, Railway Express Inc. _v._ New York, 336 U.S. 106 (1949); prohibition against sale of articles on which there is a representation of the flag for advertising purposes, except newspapers, periodicals and books; Halter _v._ Nebraska, 205 U.S. 34 (1907). _Amusement:_ prohibition against keeping billiard halls for hire, except in case of hotels having twenty-five or more rooms for use of regular guests. Murphy _v._ California, 225 U.S. 623 (1912). _Barber shops:_ a law forbidding Sunday labor except works of necessity or charity, and specifically forbidding the keeping open of barber shops. Petit _v._ Minnesota, 177 U.S. 164 (1900). _Cattle:_ a classification of sheep, as distinguished from cattle, in a regulation restricting the use of public lands for grazing. Bacon _v._ Walker, 204 U.S. 311 (1907). _See also_ Omaechevarria _v._ Idaho, 246 U.S. 343 (1918). _Cotton gins:_ in a State where cotton gins are held to be public utilities and their rates regulated, the granting of a license to a cooperative association distributing profits ratably to members and nonmembers does not deny other persons operating gins equal protection when there is nothing in the laws to forbid them to distribute their net earnings among their patrons. Corporations Commission _v._ Lowe, 281 U.S. 431 (1930). _Fish processing:_ stricter regulation of reduction of fish to flour or meal than of canning. Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936). _Food:_ bread sold in loaves must be of prescribed standard sizes, Schmidinger _v._ Chicago, 226 U.S. 578 (1913); food preservatives containing boric acid may not be sold, Price _v._ Illinois, 238 U.S. 446 (1915); lard not sold in bulk must be put up in containers holding one, three or five pounds or some whole multiple thereof, Armour & Co. _v._ North Dakota, 240 U.S. 510 (1916); milk industry may be placed in a special class for regulation, New York ex rel. Lieberman _v._ Van De Carr, 199 U.S. 552 (1905); vendors producing milk outside city may be classified separately, Adams _v._ Milwaukee, 228 U.S. 572 (1913); producing and nonproducing vendors may be distinguished in milk regulations, St. John _v._ New York, 201 U.S. 633 (1906); different minimum and maximum milk prices may be fixed for distributors and storekeepers; Nebbia _v._ New York, 291 U.S. 502 (1934); price differential may be granted for sellers of milk not having a well advertised trade name, Borden's Farm Products Co. _v._ Ten Eyck, 297 U.S. 251 (1936); oleomargarine colored to resemble butter may be prohibited, Capital City Dairy Co. _v._ Ohio ex rel. Attorney General, 183 U.S. 238 (1902); table syrups may be required to be so labelled and disclose identity and proportion of ingredients, Corn Products Ref. Co. _v._ Eddy, 249 U.S. 427 (1919). _Geographical discriminations:_ legislation limited in application to a particular geographical or political subdivision of a State, Ft. Smith Light & Traction Co. _v._ Board of Improvement, 274 U.S. 387, 391 (1927); ordinance prohibiting a particular business in certain sections of a municipality, Hadacheck _v._ Sebastian, 239 U.S. 394 (1915); statute authorizing a municipal commission to limit the height of buildings in commercial districts to 125 feet and in other districts to 80 to 100 feet, Welch _v._ Swasey, 214 U.S. 91 (1909); ordinance prescribing limits in city outside of which no woman of lewd character shall dwell, L'Hote _v._ New Orleans, 177 U.S. 587, 595 (1900). _Hotels:_ requirement that keepers of hotels having over fifty guests employ night watchmen. Miller _v._ Strahl, 239 U.S. 426 (1915). _Insurance companies:_ regulation of fire insurance rates with exemption for farmers mutuals, German Alliance Ins. Co. _v._ Lewis, 233 U.S. 389 (1914); different requirements imposed upon reciprocal insurance associations than upon mutual companies, Hoopeston Canning Co. _v._ Cullen, 318 U.S. 313 (1943); prohibition against life insurance companies or agents engaging in undertaking business, Daniel _v._ Family Ins. Co., 336 U.S. 220 (1949). _Intoxicating liquors:_ exception of druggists or manufacturers from regulation. Ohio ex rel. Lloyd _v._ Dollison, 194 U.S. 445 (1904); Eberle _v._ Michigan, 232 U.S. 700 (1914). _Lodging houses:_ requirement that sprinkler systems be installed in buildings of nonfireproof construction is valid as applied to such a building which is safeguarded by a fire alarm system, constant watchman service and other safety arrangements. Queenside Hills Realty Co. _v._ Saxl, 328 U.S. 80 (1946). _Markets:_ prohibition against operation of private market within six squares of public market. Natal _v._ Louisiana, 139 U.S. 621 (1891). _Medicine:_ a uniform standard of professional attainment and conduct for all physicians, Missouri ex rel. Hurwitz _v._ North, 271 U.S. 40 (1926); reasonable exemptions from medical registration law, Watson _v._ Maryland, 218 U.S. 173 (1910); exemption of persons who heal by prayer from regulations applicable to drugless physicians, Crane _v._ Johnson, 242 U.S. 339 (1917); exclusion of osteopathic physicians from public hospitals, Hayman _v._ Galveston, 273 U.S. 414 (1927); requirement that persons who treat eyes without use of drugs be licensed as optometrists with exception for persons treating eyes by the use of drugs, who are regulated under a different statute, McNaughton _v._ Johnson, 242 U.S. 344 (1917); a prohibition against advertising by dentists, not applicable to other professions, Semler _v._ Oregon State Dental Examiners, 294 U.S. 608 (1935). _Motor vehicles:_ guest passenger regulation applicable to automobiles but not to other classes of vehicles, Silver _v._ Silver, 280 U.S. 117 (1929); exemption of vehicles from other States from registration requirement, Storaasli _v._ Minnesota, 283 U.S. 57 (1931); classification of driverless automobiles for hire as public vehicles, which are required to procure a license and to carry liability insurance, Hodge Drive-It-Yourself Co. _v._ Cincinnati, 284 U.S. 335 (1932); exemption from limitations on hours of labor for drivers of motor vehicles of carriers of property for hire, of those not principally engaged in transport of property for hire, and carriers operating wholly in metropolitan areas, Welch Co. _v._ New Hampshire, 306 U.S. 79 (1939); exemption of busses and temporary movements of farm implements and machinery and trucks making short hauls from common carriers from limitations in net load and length of trucks, Sproles _v._ Binford, 286 U.S. 374 (1932); prohibition against operation of uncertified carriers, Bradley _v._ Public Utilities Commission, 289 U.S. 92 (1933); exemption from regulations affecting carriers for hire, of persons whose chief business is farming and dairying, but who occasionally haul farm and dairy products for compensation, Hicklin _v._ Coney, 290 U.S. 169 (1933); exemption of private vehicles, street cars and omnibuses from insurance requirements applicable to taxicabs, Packard _v._ Banton, 264 U.S. 140 (1924). _Peddlers and solicitors:_ a State may classify and regulate itinerant vendors and peddlers, Emert _v._ Missouri, 156 U.S. 296 (1895); may forbid the sale by them of drugs and medicines, Baccus _v._ Louisiana, 232 U.S. 334 (1914); prohibit drumming or soliciting on trains for business for hotels, medical practitioners, etc., Williams _v._ Arkansas, 217 U.S. 79 (1910); or solicitation of employment to prosecute or collect claims, McCloskey _v._ Tobin, 252 U.S. 107 (1920). And a municipality may prohibit canvassers or peddlers from calling at private residences unless requested or invited by the occupant to do so. Breard _v._ Alexandria, 341 U.S. 622 (1951). _Property destruction:_ destruction of cedar trees to protect apple orchards from cedar rust. Miller _v._ Schoene, 276 U.S. 272 (1928). _Railroads:_ forbid operation on a certain street, Richmond, F. & P.R. Co. _v._ Richmond, 96 U.S. 521 (1878); require fences and cattle guards and allowed recovery of multiple damages for failure to comply, Missouri P.R. Co. _v._ Humes, 115 U.S. 512 (1885); Minneapolis & St. L.R. Co. _v._ Beckwith, 129 U.S. 26 (1889); Minneapolis & St. L.R. Co. _v._ Emmons, 149 U.S. 364 (1893); charge them with entire expense of altering a grade crossing, New York & N.E.R. Co. _v._ Bristol, 151 U.S. 556 (1894); makes them responsible for fire communicated by their engines, St. Louis & S.F.R. Co. _v._ Mathews, 165 U.S. 1 (1897); requires cutting of certain weeds, Missouri, K. & T.R. Co. _v._ May, 194 U.S. 267 (1904); create a presumption against a railroad failing to give prescribed warning signals, Atlantic Coast Line R. Co. _v._ Ford, 287 U.S. 502 (1933); require use of locomotive headlights of a specified form and power, Atlantic Coast Line R. Co. _v._ Georgia, 234 U.S. 280 (1914); make railroads liable for damage caused by operation of their locomotives, unless they make it appear that their agents exercised all ordinary and reasonable care and diligence, Seaboard Air Line R. Co. _v._ Watson, 287 U.S. 86 (1932); require sprinkling of streets between tracks to lay the dust, Pacific Gas & Electric Co. _v._ Police Court, 251 U.S. 22 (1919). _Sales in bulk:_ requirement of notice of bulk sale applicable only to retail dealers. Lemieux _v._ Young, 211 U.S. 489 (1909). _Secret societies:_ regulations applied only to one class of oath-bound associations, having a membership of 20 or more persons, where the class regulated has a tendency to make the secrecy of its purpose and membership a cloak for conduct inimical to the personal rights of others and to the public welfare. New York ex rel. Bryant _v._ Zimmerman, 278 U.S. 63 (1928). _Securities:_ a prohibition on the sale of capital stock on margin or for future delivery which is not applicable to other objects of speculation, e.g., cotton, grain. Otis _v._ Parker, 187 U.S. 606 (1903). _Syndicalism:_ a criminal syndicalism statute does not deny equal protection in penalizing those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions while not penalizing those who advocate resort to such methods for maintaining such conditions. Whitney _v._ California, 274 U.S. 357 (1927). _Telegraph companies:_ a statute prohibiting stipulation against liability for negligence in the delivery of interstate message, which did not forbid express companies and other common carriers to limit their liability by contract. Western Union Teleg. Co. _v._ Commercial Milling Co., 218 U.S. 406 (1910). [1105] Hartford Steam Boiler Inspection & Ins. Co. _v._ Harrison, 301 U.S. 459 (1937). [1106] Smith _v._ Cahoon, 283 U.S. 553 (1931). [1107] Mayflower Farms _v._ Ten Eyck, 297 U.S. 266 (1936). [1108] Buck _v._ Bell, 274 U.S. 200 (1927). [1109] Skinner _v._ Oklahoma, 316 U.S. 535 (1942). [1110] Yick Wo _v._ Hopkins, 118 U.S. 356 (1886). [1111] Fisher _v._ St. Louis, 194 U.S. 361 (1904). [1112] Gorieb _v._ Fox, 274 U.S. 603 (1927). [1113] Wilson _v._ Eureka City, 173 U.S. 32 (1899). [1114] Gundling _v._ Chicago, 177 U.S. 183 (1900). [1115] Kotch _v._ Pilot Comm'rs., 330 U.S. 552 (1947). [1116] Yick Wo _v._ Hopkins, 118 U.S. 356 (1886). _Cf._ Hirabayashi _v._ United States, 320 U.S. 81 (1943), where the Court sustained the relocation of American citizens of Japanese ancestry on the ground that in this case the fact of origin might reasonably be deemed to have some substantial relation to national security. It was careful to point out however, that normally distinctions based on race or national origin are invidious and hence void. [1117] Ohio ex rel. Clarke _v._ Deckebach, 274 U.S. 392 (1927). [1118] Patsone _v._ Pennsylvania, 232 U.S. 138 (1914). [1119] Heim _v._ McCall, 239 U.S. 175 (1915); Crane _v._ New York, 239 U.S. 195 (1915). [1120] Truax _v._ Raich, 239 U.S. 33 (1915). [1121] Takahashi _v._ Fish & Game Comm'n., 334 U.S. 410 (1948). [1122] Terrace _v._ Thompson, 263 U.S. 197 (1923). [1123] 332 U.S. 633 (1948). [1124] Ibid. 647, 650. [1125] Holden _v._ Hardy, 169 U.S. 366 (1898). [1126] Bunting _v._ Oregon, 243 U.S. 426 (1917). [1127] Atkin _v._ Kansas, 191 U.S. 207 (1903). [1128] Keokee Consol. Coke Co. _v._ Taylor, 234 U.S. 224 (1914); _see also_ Knoxville Iron Co. _v._ Harbison, 183 U.S. 13 (1901). [1129] McLean _v._ Arkansas, 211 U.S. 539 (1909). [1130] Prudential Insurance Co. _v._ Cheek, 259 U.S. 530 (1922). [1131] Chicago, R.I. & P.R. Co. _v._ Perry, 259 U.S. 548 (1922). [1132] Mountain Timber Co. _v._ Washington, 243 U.S. 219 (1917). [1133] New York C.R. Co. _v._ White, 243 U.S. 188 (1917); Middleton _v._ Texas Power & Light Co., 249 U.S. 152 (1919); Ward & Gow _v._ Krinsky, 259 U.S. 503 (1922). [1134] Lincoln Federal Labor Union _v._ Northwestern Co., 335 U.S. 525 (1949). [1135] Miller _v._ Wilson, 236 U.S. 373 (1915); Bosley _v._ McLaughlin, 236 U.S. 385 (1915). [1136] Muller _v._ Oregon, 208 U.S. 412 (1908). [1137] Dominion Hotel _v._ Arizona, 249 U.S. 265 (1919). [1138] Radice _v._ New York, 264 U.S. 292 (1924). [1139] West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937); overruling Adkins _v._ Children's Hospital, 261 U.S. 525 (1923); and Morehead _v._ Tipaldo, 298 U.S. 587 (1936). [1140] Goesaert _v._ Cleary, 335 U.S. 464 (1948). [1141] Ibid. 466. [1142] Mallinckrodt Chemical Works _v._ Missouri ex rel. Jones, 238 U.S. 41 (1915). [1143] International Harvester Co. _v._ Missouri ex rel. Atty. Gen., 234 U.S. 199 (1914). [1144] Tigner _v._ Texas, 310 U.S. 141 (1940), overruling Connolly _v._ Union Sewer Pipe Co., 184 U.S. 540 (1902). [1145] Standard Oil Co. _v._ Tennessee ex rel. Cates, 217 U.S. 413 (1910). [1146] Carroll _v._ Greenwich Ins. Co., 199 U.S. 401 (1905). [1147] Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935). _See also_ Slaughter-House Cases, 16 Wall. 36 (1873); Nebbia _v._ New York, 291 U.S. 502, 529 (1934). [1148] Pace _v._ Alabama, 106 U.S. 583 (1883). [1149] Collins _v._ Johnston, 237 U.S. 502, 510 (1915); Pennsylvania ex rel. Sullivan _v._ Ashe, 302 U.S. 51 (1937). [1150] McDonald _v._ Massachusetts, 180 U.S. 311 (1901). _See also_ Moore _v._ Missouri, 159 U.S. 673 (1895); Graham _v._ West Virginia, 224 U.S. 616 (1912). [1151] Carlesi _v._ New York, 233 U.S. 51 (1914). [1152] Ughbanks _v._ Armstrong, 208 U.S. 481 (1908). [1153] Pennsylvania ex rel. Sullivan _v._ Ashe, 302 U.S. 51 (1937). [1154] Finley _v._ California, 222 U.S. 28 (1911). [1155] Minnesota _v._ Probate Court, 309 U.S. 270 (1940). [1156] Pace _v._ Alabama, 106 U.S. 583 (1883). [1157] Francis _v._ Resweber, 329 U.S. 459 (1947). [1158] Skinner _v._ Oklahoma, 316 U.S. 535 (1942). _Cf._ Buck _v._ Bell, 274 U.S. 200 (1927). (Sterilization of defectives.) [1159] Buchanan _v._ Warley, 245 U.S. 60 (1917). [1160] Corrigan _v._ Buckley, 271 U.S. 323 (1926). [1161] Shelley _v._ Kraemer, 334 U.S. 1 (1948). _Cf._ Hurd _v._ Hodge, 334 U.S. 24 (1948), where the Court held that a restrictive covenant was unenforceable in the Federal Court of the District of Columbia for reasons of public policy. [1162] Plessy _v._ Ferguson, 163 U.S. 537 (1896). _Cf._ Morgan _v._ Virginia, 328 U.S. 373 (1946), where a State statute requiring segregation of passengers on interstate journeys was held to be an unlawful restriction on interstate commerce. _See also_ Hall _v._ De Cuir, 95 U.S. 485 (1878), where a State law forbidding steamboats on the Mississippi to segregate passengers according to race was held unconstitutional under the commerce clause, and Bob-Lo Excursion Co. _v._ Michigan, 333 U.S. 28 (1948), where a Michigan statute forbidding discrimination was held valid as applied to an excursion boat operating on the Detroit River; and Henderson _v._ United States, 339 U.S. 816 (1950), where segregation in a dining car operated by an interstate railroad was held to violate a federal statute. [1163] McCabe _v._ Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914). [1164] Cumming _v._ County Board of Education, 175 U.S. 528 (1899). [1165] Gong Lum _v._ Rice, 275 U.S. 78 (1927). [1166] 305 U.S. 337 (1938). [1167] Sipuel _v._ Oklahoma, 332 U.S. 631 (1948). [1168] Fisher _v._ Hurst, 333 U.S. 147 (1948). [1169] 339 U.S. 629 (1950). [1170] 339 U.S. 637 (1950). The "Separate but Equal" Doctrine took its rise in Chief Justice Shaw's opinion in Roberts _v._ City of Boston, 59 Mass. 198, 200 (1849), for an excellent account of which _see_ the article by Leonard W. Levy and Harlan B. Phillips in 56 American Historical Review, 510-518 (April, 1951). _See also_ Judge Danforth's opinion in Gallagher _v._ King, 93 N.Y. 438 (1883). In a case in which Negro children brought a suit in the Federal District Court for the Eastern District of South Carolina, to enjoin certain school officials from making any distinctions based upon race or color in providing educational facilities, the court found that statutes of South Carolina which required separate schools for the two races did not of themselves violate the Fourteenth Amendment, but ordered the school officials to proceed at once to furnish equal educational facilities and to report to the court within six months as to the action taken. On appeal to the Supreme Court the case was remanded for further proceedings in order that the Supreme Court may "have the benefit of the views of the District Court upon the additional facts brought to the attention of that court in the report which it ordered." Briggs _v._ Elliott, 342 U.S. 350, 351 (1952). Recently, the Fourth United States Circuit Court of Appeals, sitting at Richmond, ruled that Negroes must be admitted to the white University of North Carolina Law School in terms which flatly rejected the thesis of separate but equal facilities. "It is a definite handicap to the colored student to confine his association in the Law School with people of his own class," said the opinion of Judge Morris A. Soper.--McKissick _v._ Carmichael, 187 F. 2d 949, 952 (1951). [1171] Guinn _v._ United States, 238 U.S. 347 (1915). [1172] Williams _v._ Mississippi, 170 U.S. 213 (1898). [1173] Giles _v._ Harris, 189 U.S. 475, 486 (1903). [1174] Lane _v._ Wilson, 307 U.S. 268, 275 (1939). [1175] _See_ p. 1141, _ante_. [1176] Nixon _v._ Herndon, 273 U.S. 536 (1927). [1177] Nixon _v._ Condon, 286 U.S. 73, 89 (1932). [1178] Grovey _v._ Townsend, 295 U.S. 45 (1935). [1179] United States _v._ Classic, 313 U.S. 299 (1941). [1180] 321 U.S. 649 (1944). [1181] Pope _v._ Williams, 193 U.S. 621 (1904). [1182] 321 U.S. 1 (1944). [1183] 328 U.S. 549, 566 (1946). Justice Black dissented on the ground that the equal protection clause was violated. [1184] 335 U.S. 281, 287, 288 (1948). Justice Douglas, with whom Justices Black and Murphy concurred, dissented saying that the statute lacked "the equality to which the exercise of political rights is entitled under the Fourteenth Amendment." [1185] South _v._ Peters, 339 U.S. 276 (1950). [1186] Dohany _v._ Rogers, 281 U.S. 362, 369 (1930). [1187] Hayes _v._ Missouri, 120 U.S. 68 (1887). [1188] Hardware Dealers Mut. F. Ins. Co. _v._ Glidden Co., 284 U.S. 151 (1931). [1189] Lindsley _v._ Natural Carbonic Gas Co., 220 U.S. 61, 81, 82 (1911); _see also_ Mobile, J. & K.C.R. Co. _v._ Turnipseed, 219 U.S. 35 (1910); Adams _v._ New York, 192 U.S. 585 (1904). [1190] Cohen _v._ Beneficial Loan Corp., 337 U.S. 541, 552 (1949). [1191] Bowman _v._ Lewis, 101 U.S. 22, 30 (1880). _See also_ Duncan _v._ Missouri, 152 U.S. 377 (1894); Ohio ex rel. Bryant _v._ Akron Metropolitan Park Dist, 281 U.S. 74 (1930). [1192] Mallett _v._ North Carolina, 181 U.S. 589 (1901); _see also_ Bowman _v._ Lewis, 101 U.S. 22, 30 (1880). [1193] Truax _v._ Corrigan, 257 U.S. 312 (1921). [1194] Cochran _v._ Kansas, 316 U.S. 255 (1942). [1195] Bain Peanut Co. _v._ Pinson, 282 U.S. 499 (1931). [1196] Consolidated Rendering Co. _v._ Vermont, 207 U.S. 541 (1908). _See also_ Hammond Packing Co. _v._ Arkansas, 212 U.S. 322 (1909). [1197] Power Mfg. Co. _v._ Saunders, 274 U.S. 490 (1927). [1198] Kentucky Finance Corp. _v._ Paramount Auto Exch. Corp., 262 U.S. 544 (1923). [1199] Fidelity Mut. Life Asso. _v._ Mettler, 185 U.S. 308, 325 (1902). _See also_ Manhattan L. Ins. Co. _v._ Cohen, 234 U.S. 123 (1914). [1200] Lowe _v._ Kansas, 163 U.S. 81 (1896). [1201] Missouri, K. & T.R. Co. _v._ Cade, 233 U.S. 642 (1914); _see also_ Missouri, K. & T.R. Co. _v._ Harris, 234 U.S. 412 (1914). [1202] Missouri P.R. Co. _v._ Larabee, 234 U.S. 459 (1914). [1203] Atchison, T. & S.F.R. Co. _v._ Matthews, 174 U.S. 96 (1899). [1204] Gulf, C. & S.F.R. Co. _v._ Ellis, 165 U.S. 150 (1897). _See also_ Atchison, T. & S.F.R. Co. _v._ Vosburg, 238 U.S. 56 (1915). [1205] 18 Stat. 336 (1875); 8 U.S.C. § 44 (1946). [1206] Cassell _v._ Texas, 339 U.S. 282 (1950); Hill _v._ Texas, 316 U.S. 400, 404 (1942); Smith _v._ Texas, 311 U.S. 128 (1940); Pierre _v._ Louisiana, 306 U.S. 354 (1939); Virginia _v._ Rives, 100 U.S. 313 (1880). [1207] Virginia _v._ Rives, 100 U.S. 313, 322, 323 (1880). [1208] Akins _v._ Texas, 325 U.S. 398, 403 (1945). [1209] Patton _v._ Mississippi, 332 U.S. 463 (1947). _See also_ Shepherd _v._ Florida, 341 U.S. 50 (1951). [1210] Gibson _v._ Mississippi, 162 U.S. 565 (1896). [1211] Rawlins _v._ Georgia, 201 U.S. 638 (1906). [1212] 332 U.S. 261 (1947). In an interesting footnote to his opinion, Justice Jackson asserted that "it is unnecessary to decide whether the equal protection clause of the Fourteenth Amendment might of its own force prohibit discrimination on account of race in the selection of jurors, so that such discrimination would violate the due process clause of the same Amendment." Ibid. 284. Earlier cases dealing with racial discrimination have indicated that the discrimination was forbidden by the equal protection clause as well as by the Civil Rights Act of 1875. _See_ cases cited to the preceding paragraph. [Transcriber's Note: Reference is to Section "Selection of Jury", above.] [1213] Ibid. 285. [1214] Ibid. 270, 271. [1215] Ibid. 291. [1216] Ibid. 288, 289, 299, 300. Four Justices, speaking by Justice Murphy dissented, saying: "The proof here is adequate enough to demonstrate that this panel, like every discriminatorily selected 'blue ribbon' panel, suffers from a constitutional infirmity. That infirmity is the denial of equal protection to those who are tried by a jury drawn from a 'blue ribbon' panel. Such a panel is narrower and different from that used in forming juries to try the vast majority of other accused persons. To the extent of that difference, therefore, the persons tried by 'blue ribbon' juries receive unequal protection." "In addition, as illustrated in this case, the distinction that is drawn in fact between 'blue ribbon' jurors and general jurors is often of such a character as to destroy the representative nature of the 'blue ribbon' panel. There is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons. Nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale. But there is a constitutional right to a jury drawn from a group which represents a cross-section of the community. And a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under our Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy or the least successful. It is a democratic institution, representative of all qualified classes of people. * * * To the extent that a 'blue ribbon' panel fails to reflect this democratic principle, it is constitutionally defective." [1217] 112 U.S. 94, 102 (1884). [1218] W.G. Rice, Esq., Jr., University of Wisconsin Law School, The Position of the American Indian in the Law of the United States, 16 Journal of Comp. Leg. 78, 80 (1934). [1219] 39 Op. Atty. Gen. 518, 519. [1220] 46 Stat. 26; 55 Stat. 761; 2 U.S.C.A. § 2a (a). [1221] Cong. Rec., 77th Cong., 1st sess., vol. 87, p. 70, January 8, 1941. [1222] McPherson _v._ Blacker, 146 U.S. 1 (1892); Ex parte Yarbrough, 110 U.S. 651, 663 (1884). [1223] Saunders _v._ Wilkins, 152 F. (2d) 235 (1945); certiorari denied, 328 U.S. 870 (1946); rehearing denied, 329 U.S. 825 (1946). [1224] Saunders _v._ Wilkins, 152 F. (2d) 235, 237-238, citing Willoughby, Constitution, 2d ed., pp. 626, 627. [1225] Legislation by Congress providing for removal was necessary to give effect to the prohibition of section 3; and until removed in pursuance of such legislation, the exercise of functions by persons in office before promulgation of the Fourteenth Amendment was not unlawful. (Griffin's Case, 11 Fed. Cas. No. 5815 (1869)). Nor were persons who had taken part in the Civil War and had been pardoned therefor by the President before the adoption of this Amendment precluded by this section from again holding office under the United States. (18 Op. Atty. Gen. 149 (1885)). The phrase, "engaged in Rebellion" has been construed as implying a voluntary effort to assist an insurrection and to bring it to a successful termination; and accordingly as not embracing acts done under compulsion of force or of a well grounded fear of bodily harm. Thus, while the mere holding of a commission of justice of the peace under the Confederate government was not viewed as involving, of itself, "adherence or countenance to the Rebellion," action by such officer in furnishing a substitute for himself to the Confederate Army amounted to such participation in a Rebellion unless said action could be shown to have resulted from fear of conscription and to have sprung, not from repugnance to military service, but from want of sympathy with the insurrectionary movement. (United States _v._ Powell, 27 Fed. Cas. No. 16,079 (1871)). [1226] Perry _v._ United States, 294 U.S. 330, 354 (1935) in which the Court concluded "that the Joint Resolution of June 5, 1933, insofar as it attempted to override" the gold-clause obligation in a Fourth Liberty Loan Gold Bond, "went beyond the congressional power." _See also_ Branch _v._ Haas, 16 F. 53 (1883), citing Hanauer _v._ Woodruff, 15 Wall. 439 (1873) and Thorington _v._ Smith, 8 Wall. 1 (1869) in which it was held that inasmuch as bonds issued by the Confederate States were rendered illegal by section four, a contract for the sale and delivery before October 29, 1881 of 200 Confederate coupon bonds at the rate of $1000 was void, and a suit for damages for failure to deliver could not be maintained. _See also_ The Pietro Campanella, 73 F. Supp. 18 (1947) which arose out of a suit for the forfeiture, prior to our entry into World War II, of Italian vessels in an American port and their subsequent requisition by the Maritime Commission. The Attorney General, as successor to the Alien Property Custodian, was declared to be entitled to the fund thereafter determined to be due as compensation for the use and subsequent loss of the vessels; and the order of the Alien Property Custodian vesting in himself, for the United States, under authority of the Trading with the Enemy Act and Executive Order, all rights of claimants in the vessels and to the fund substituted therefor was held not to be a violation of section four. An attorney for certain of the claimants, who had asserted a personal right to a lien upon the fund for his services, had argued that when the Government requisitioned ships under the applicable statute providing for compensation, and at a time before this country was at war with Italy, the United States entered into a binding agreement with the owners for compensation and that this promise constituted a valid obligation of the United States which could not be repudiated without violating section four. [1227] Civil Rights Cases, 109 U.S. 3, 13 (1883). _See also_ United States _v._ Wheeler, 254 U.S. 281 (1920) on which it was held that the United States is without power to punish infractions by individuals of the right of citizen to reside peacefully in the several States, and to have free ingress into and egress from such States. Authority to deal with the forcible eviction by a mob of individuals across State boundaries is exclusively within the power reserved by the Constitution to the States. [1228] Virginia _v._ Rives, 100 U.S. 313, 318 (1880); Strauder _v._ West Virginia, 100 U.S. 303 (1880). [1229] Ex parte Virginia, 100 U.S. 339, 344 (1880). [1230] United States _v._ Harris, 106 U.S. 629 (1883). _See also_ Baldwin _v._ Franks, 120 U.S. 678, 685 (1887). [1231] 325 U.S. 91 (1945). [1232] 18 U.S.C.A. § 242. [1233] No "opinion of the Court" was given. In announcing the judgment of the Court, Justice Douglas, who was joined by Chief Justice Stone and Justices Black and Reed, declared that the trial judge had erred in not charging the jury that the defendants must be found to have had the specific intention of depriving their victim of his right to a fair trial in accordance with due process of law, that this was the force of the word, "willfully," in section 20, and that any other construction of section 20 would be void for want of laying down an "ascertainable standard of guilt." To avoid a stalemate on the Court, Justice Rutledge concurred in the result; but, on the merits of the case, he would have affirmed the conviction. Justice Murphy announced that he favored affirming the conviction and therefore dissented. Justice Roberts, with whom Justices Frankfurter and Jackson were associated, dissented for reasons stated in the text. [1234] 100 U.S. 339, 346 (1880). [1235] 313 U.S. 299, 326 (1941). [1236] 325 U.S. 91, 114-116 (1945). _But see_ Barney _v._ City of New York, 193 U.S. 430, 438, 441 (1904). [1237] Ibid. 106-107. The majority supporting this proposition was not the same majority as the one which held that "State" action was involved. [1238] 341 U.S. 97 (1951). [1239] Ibid. 103-104. [1240] 342 U.S. 852. [1241] Ibid. 853-854. AMENDMENT 15 RIGHT OF CITIZENS TO VOTE Page Affirmative interpretation 1183 Negative application; the "Grandfather Clause" 1184 Application to party primaries 1185 Enforcement 1186 AMENDMENT 15.--RIGHT OF CITIZENS TO VOTE Amendment 15 Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. Affirmative Interpretation In its initial appraisals of this amendment the Court appeared disposed to emphasize only its purely negative aspects. "The Fifteenth Amendment," it announced, did "not confer the right * * * [to vote] upon any one," but merely "invested the citizens of the United States with a new constitutional right which is * * * exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude."[1] Within less than ten years, however, in Ex parte Yarbrough,[2] the Court ventured to read into the amendment an affirmative as well as a negative purpose. Conceding "that this article" had originally been construed as giving "no affirmative right to the colored man to vote," and as having been "designed primarily to prevent discrimination against him," Justice Miller, in behalf of his colleagues, disclosed their present ability "to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words 'white man' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, * * *, it annulled the discriminating word _white_, and thus left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which should give the right of voting exclusively to white people, * * *" Negative Application; the "Grandfather Clause" The subsequent history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various attempts by States to disfranchise the Negro either overtly through statutory enactment, or covertly through inequitable administration of their electoral laws or by toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the "grandfather clause." Without expressly disfranchising the Negro, but with a view to facilitating the permanent placement of white residents on the voting lists while continuing to interpose severe obstacles upon Negroes seeking qualification as voters, several States, beginning in 1895, enacted temporary laws whereby persons who were voters, or descendants of voters on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirements. Unable because of the date to avail themselves of the same exemption, Negroes were thus left exposed to disfranchisement on grounds of illiteracy while whites no less illiterate were enabled to become permanent voters. With the achievement of this intended result, most States permitted their laws to lapse; but Oklahoma's grandfather clause was enacted as a permanent amendment to the State constitution; and when presented with an opportunity to pass on its validity, a unanimous Court condemned the standard of voting thus established as recreating and perpetuating "the very conditions which the [Fifteenth] Amendment was intended to destroy."[3] Nor, when Oklahoma followed up this defeat with a statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916 (sick persons and persons absent had a second opportunity to register between May 11 and June 30, 1916) should be perpetually disfranchised, did the Court experience any difficulty in holding the same to be repugnant to the amendment.[4] That amendment, Justice Frankfurter declared, "nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race."[5] More precisely, the effect of this statute, as discerned by the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registry lists in 1914 by virtue of the hitherto invalidated grandfather clause; whereas Negroes, prevented from registering by that clause, were afforded only a twenty-day registration opportunity to avoid permanent disfranchisement. Application to Party Primaries Indecision was displayed by the Court, however, when it was first called upon to deal with the exclusion of Negroes from participation in primary elections.[6] Prior to its becoming convinced that primary contests were in fact elections,[7] the Court had relied upon the equal protection clause to strike down a Texas White Primary Law[8] and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primaries to members of State political parties as determined by the central committees thereof.[9] When exclusion of Negroes was thereafter perpetuated by political parties acting not in obedience to any statutory command, this discrimination was for a time viewed as not constituting State action and therefore not prohibited by either the Fourteenth or the Fifteenth Amendments.[10] But this holding was reversed nine years later when the Court, in Smith _v._ Allwright,[11] declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a State agency, and hence may not under this amendment exclude Negroes from such elections. At a very early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face, and in the absence of proof of discriminatory enforcement could not be viewed as denying the equal protection of the laws guaranteed by the Fourteenth Amendment.[12] More recently, the Boswell amendment to the constitution of Alabama, which provided that only persons who understood and could explain the Constitution of the United States to the reasonable satisfaction of boards of registrars was found, both in its object as well as in the manner of its administration, to be contrary to the Fifteenth Amendment. The legislative history of the adoption of the Alabama provision disclosed that "the ambiguity inherent in the phrase 'understand and explain' * * * was purposeful * * * and was intended as a grant of arbitrary power in an attempt to obviate the consequences of" Smith _v._ Allwright.[13] Enforcement Two major questions have presented themselves for decision as a consequence of the exercise by Congress of its powers to enforce this article, an amendment which the Court has acknowledged to be self-executing.[14] These have pertained to the limitations which the amendment imposes on the competency of Congress legislating thereunder to punish racial discrimination founded upon more than a denial of suffrage and to penalize such denials when perpetrated by private individuals not acting under color of public authority. Rulings on both these issues were made very early; and the Court thus far has manifested no disposition to depart from them, although their compatibility with more recent holdings may be doubtful. Thus, when the Enforcement Act of 1870,[15] which penalized State officers for refusing to receive the vote of any qualified citizen, was employed to support a prosecution of such officers for having prevented a qualified Negro from voting, the Court held it to be in excess of the authority conferred upon Congress.[16] The Fifteenth Amendment, Chief Justice Waite maintained, did not confer "authority to impose penalties for every wrongful refusal to receive * * * [a] vote * * *, [but] only when the wrongful refusal * * * is because of race, color, or previous condition of servitude, * * *" Voided for the like reason that this amendment "relates solely to action 'by the United States or by any State,' and does not contemplate wrongful individual acts" was another provision of the same act, which authorized prosecution of private individuals for having prevented citizens from voting at a Congressional election.[17] Notes [1] United States _v._ Reese, 92 U.S. 214, 217-218 (1876); United States _v._ Cruikshank, 92 U.S. 542, 556 (1876). [2] 110 U.S. 651, 665 (1884); citing Neal _v._ Delaware, 103 U.S. 370, 389 (1881). This affirmative view was later reiterated in Guinn _v._ United States, 238 U.S. 347, 363 (1915). [3] Guinn _v._ United States, 238 U.S. 347, 360, 363-364 (1915). [4] Lane _v._ Wilson, 307 U.S. 268 (1939). [5] Ibid. 275. [6] Cases involving this and related issues are also discussed under the equal protection clause, p. 1163. [7] United States _v._ Classic, 313 U.S. 299 (1941); Smith _v._ Allwright, 321 U.S. 649 (1944). [8] Nixon _v._ Herndon, 273 U.S. 536 (1927). [9] Nixon _v._ Condon, 286 U.S. 73, 89 (1932). [10] Grovey _v._ Townsend, 295 U.S. 45, 55 (1935). [11] 321 U.S. 649 (1944). Notwithstanding that the South Carolina Legislature, after the decision in Smith _v._ Allwright, repealed all statutory provisions regulating primary elections and political organizations conducting them, a political party thus freed of control is not to be regarded as a private club and for that reason exempt from the constitutional prohibitions against racial discrimination contained in the Fifteenth Amendment. Rice _v._ Elmore, 165 F. (2d) 387 (1947); certiorari denied, 333 U.S. 875 (1948). _See also_ Brown _v._ Baskin, 78 F. Supp. 933, 940 (1948) which held violative of the Fifteenth Amendment a requirement of a South Carolina political party, which excluded Negroes from membership, that white as well as Negro qualified voters, as a prerequisite for voting in its primary, take an oath that they will support separation of the races. [12] Williams _v._ Mississippi, 170 U.S. 213, 220 (1898). [13] Davis _v._ Schnell, 81 F. Supp. 872, 878, 880 (1949); affirmed, 336 U.S. 933 (1949). [14] United States _v._ Amsden, 6 F. 819 (1881). [15] 16 Stat. 140. [16] United States _v._. Reese, 92 U.S. 214, 218 (1876). [17] James _v._ Bowman, 190 U.S. 127, 136 (1903) _See also_ Karem _v._ United States, 121 F. 250, 259 (1903). AMENDMENT 16 INCOME TAX Page History and purpose of the amendment 1191 Meaning of income as distinguished from capital 1192 Corporate dividends: when taxable as income 1193 The "stock dividends case" 1193 Other corporate earnings or receipts: when taxable as income 1196 Gains in the form of real estate: when taxable as income 1197 Gains in the form of bequests: when taxable as income 1198 Diminution of loss: not income 1198 Dates applicable in computation of taxable gains 1199 Deductions: exemptions, etc. 1200 Illegal gains as income 1201 INCOME TAX Amendment 16 The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. History and Purpose of the Amendment The ratification of this amendment was the direct consequence of the decision in 1895[1] whereby the attempt of Congress the previous year to tax incomes uniformly throughout the United States[2] was held by a divided court to be unconstitutional. A tax on incomes derived from property,[3] the Court declared, was a "direct tax" which Congress under the terms of article I, section 2, clause 3, and section 9, clause 4, could impose only by the rule of apportionment according to population; although scarcely fifteen years prior the Justices had unanimously sustained[4] the collection of a similar tax during the Civil War,[5] the only other occasion preceding Amendment Sixteen in which Congress had ventured to utilize this method of raising revenue.[6] During the interim between the Pollock decision in 1895, and the ratification of the Sixteenth Amendment in 1913, the Court gave evidence of a greater awareness of the dangerous consequences to national solvency which that holding threatened, and partially circumvented it, either by taking refuge in redefinitions of "direct tax" or, and more especially, by emphasizing, virtually to the exclusion of the former, the history of excise taxation. Thus, in a series of cases, notably Nicol v. Ames,[7] Knowlton _v._ Moore[8] and Patton _v._ Brady[9] the Court held the following taxes to have been levied merely upon one of the "incidents of ownership" and hence to be excises; a tax which involved affixing revenue stamps to memoranda evidencing the sale of merchandise on commodity exchanges, an inheritance tax, and a war revenue tax upon tobacco on which the hitherto imposed excise tax had already been paid and which was held by the manufacturer for resale. Thanks to such endeavors the Court thus found it possible, in 1911,[10] to sustain a corporate income tax as an excise "measured by income" on the privilege of doing business in corporate form. The adoption of the Sixteenth Amendment, however, put an end to speculation as to whether the Court, unaided by constitutional amendment, would persist along these lines of construction until it had reversed its holding in the Pollock Case. Indeed, in its initial appraisal[11] of the amendment it classified income taxes as being inherently "indirect." "The command of the amendment that all income taxes shall not be subject to apportionment by a consideration of the sources from which the taxed income may be derived, forbids the application to such taxes of the rule applied in the Pollock Case by which alone such taxes were removed from the great class of excises, duties, and imposts subject to the rule of uniformity and were placed under the other or direct class.[12] * * * The Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged * * *"[13] Meaning of "Income" as Distinguished From Capital Building upon definitions formulated in cases construing the Corporation Tax Act of 1909,[14] the Court initially described income as the "gain derived from capital, from labor, or from both combined," inclusive of the "profit gained through a sale or conversion of capital assets";[15] and in the following array of factual situations has subsequently applied this definition to achieve results that have been productive of extended controversy. CORPORATE DIVIDENDS: WHEN TAXABLE AS INCOME Rendered in conformity with the belief that all income "in the ordinary sense of the word" became taxable under the Sixteenth Amendment, the earliest decisions of the Court on the taxability of corporate dividends occasioned little comment. Emphasizing that in all such cases the stockholder is to be viewed as "a different entity from the corporation," the Court in Lynch _v._ Hornby[16] held that a cash dividend equal to 24% of the par value of outstanding stock and made possible largely by the conversion into money of assets earned prior to the adoption of the amendment, was income taxable to the stockholder for the year in which he received it, notwithstanding that such an extraordinary payment might appear "to be a mere realization in possession of an inchoate and contingent interest * * * [of] the stockholder * * * in a surplus of corporate assets previously existing." In Peabody _v._ Eisner,[17] decided on the same day and deemed to have been controlled by the preceding case, the Court ruled that a dividend paid in the stock of another corporation, although representing earnings that had accrued before ratification of the amendment, was also taxable to the shareholder as income. The dividend was likened to a distribution in specie. THE "STOCK DIVIDENDS CASE" Two years later the Court decided Eisner _v._ Macomber,[18] and the controversy which that decision precipitated still endures. Departing from the interpretation placed upon the Sixteenth Amendment in the earlier cases; namely, that the purpose of the amendment was to correct the "error" committed in the Pollock Case and to restore income taxation to "the category of indirect taxation to which it inherently belonged," Justice Pitney, who delivered the opinion in the Eisner Case, indicated that the sole purpose of the Sixteenth Amendment was merely to "remove the necessity which otherwise might exist for an apportionment among the States of taxes laid on income." He thereupon undertook to demonstrate how what was not income, but an increment of capital when received, could later be transmitted into income upon sale or conversion, and could be taxed as such without the necessity of apportionment. In short, the term "income" reacquired to some indefinite extent a restrictive significance. Specifically, the Justice held that a stock dividend was capital when received by a stockholder of the issuing corporation and did not become taxable without apportionment; that is, as "income," until sold or converted, and then only to the extent that a gain was realized upon the proportion of the original investment which such stock represented. "A stock dividend," Justice Pitney maintained, "far from being a realization of profits to the stockholder, * * * tends rather to postpone such realization, in that the fund represented by the new stock has been transferred from surplus to capital, and no longer is available for actual distribution. * * * not only does a stock dividend really take nothing from * * * the corporation and add nothing to that of the shareholder, but * * * the antecedent accumulation of profits evidenced thereby, while indicating that the shareholder is richer because of an increase of his capital, at the same time shows [that] he has not realized or received any income in" what is no more than a "bookkeeping transaction." But conceding that a stock dividend represented a gain, the Justice concluded that the only gain taxable as "income" under the amendment was "a gain, a profit, something of exchangeable value _proceeding from_ the property, _severed from_ the capital however invested or employed, and _coming in_, being '_derived_,' that is, _received_ or _drawn by_ the recipient [the taxpayer] for his _separate_ use, benefit, and disposal; * * *." Only the latter, in his opinion, answered the description of income "derived" from property; whereas "a gain accruing to capital, not a _growth_ or an _increment_ of value _in_ the investment" did not.[19] Although steadfastly refusing to depart from the principle[20] which it asserted in Eisner _v._ Macomber, the Court in subsequent decisions has, however, slightly narrowed the application thereof. Thus, the distribution, as a dividend, to stockholders of an existing corporation of the stock of a new corporation to which the former corporation, under a reorganization, had transferred all its assets, including a surplus of accumulated profits, was treated as taxable income. The fact that a comparison of the market value of the shares in the older corporation immediately before, with the aggregate market value of those shares plus the dividend shares immediately after, the dividend showed that the stockholders experienced no increase in aggregate wealth was declared not to be a proper test for determining whether taxable income had been received by these stockholders.[21] On the other hand, no taxable income was held to have been produced by the mere receipt by a stockholder of rights to subscribe for shares in a new issue of capital stock, the intrinsic value of which was assumed to be in excess of the issuing price. The right to subscribe was declared to be analogous to a stock dividend, and "only so much of the proceeds obtained upon the sale of such rights as represents a realized profit over cost" to the stockholders was deemed to be taxable income.[22] Similarly, on grounds of consistency with Eisner _v._ Macomber, the Court has ruled that inasmuch as they gave the stockholder an interest different from that represented by his former holdings, a dividend in common stock to holders of preferred stock,[23] or a dividend in preferred stock accepted by a holder of common stock[24] was income taxable under the Sixteenth Amendment. OTHER CORPORATE EARNINGS OR RECEIPTS: WHEN TAXABLE AS INCOME On at least two occasions the Court has rejected as untenable the contention that a tax on undistributed corporate profits is essentially a penalty rather than a tax or that it is a direct tax on capital and hence is not exempt from the requirement of apportionment. Inasmuch as the exaction was permissible as a tax, its validity was held not to be impaired by its penal objective, namely, "to force corporations to distribute earnings in order to create a basis for taxation against the stockholders." As to the added contention that, because liability was assessed upon a mere purpose to evade imposition of surtaxes against stockholders, the tax was a direct tax on a state of mind, the Court replied that while "the existence of the defined purpose was a condition precedent to the imposition of the tax liability, * * * this * * * [did] not prevent it from being a true income tax within the meaning of the Sixteenth Amendment."[25] Subsequently, in Helvering _v._ Northwest Steel Mills,[26] this appraisal of the constitutionality of the undistributed profits tax was buttressed by the following observation: "It is true that the surtax is imposed upon the annual income only if it is not distributed, but this does not serve to make it anything other than a true tax on income within the meaning of the Sixteenth Amendment. Nor is it true, * * *, that because there might be an impairment of the capital stock, the tax on the current annual profit would be the equivalent of a tax upon capital. Whether there was an impairment of the capital stock or not, the tax * * * was imposed on profits earned during * * *--a tax year--and therefore on profits constituting income within the meaning of the Sixteenth Amendment."[27] Likening a cooperative to a corporation, federal courts have also declared to be taxable income the net earnings of a farmers' cooperative, a portion of which was used to pay dividends on capital stock without reference to patronage. The argument that such earnings were in reality accumulated savings of its patrons which the cooperative held as their bailee was rejected as unsound for the reason that "while those who might be entitled to patronage dividends have, * * *, an interest in such earnings, such interest never ripens into an individual ownership * * * until and if a patronage dividend be declared." Had such net earnings been apportioned to all of the patrons during the year, "there might be * * * a more serious question as to whether such earnings constituted 'income' [of the cooperative] within the Amendment."[28] Similarly, the power of Congress to tax the income of an unincorporated joint stock association has been held to be unaffected by the fact that under State law the association is not a legal entity and cannot hold title to property, or by the fact that the shareholders are liable for its debts as partners.[29] Whether subsidies paid to corporations in money or in the form of grants of land or other physical property constitute taxable income has also concerned the Court. In Edwards _v._ Cuba Railroad Co.[30] it ruled that subsidies of lands, equipment, and money paid by Cuba for the construction of a railroad were not taxable income but were to be viewed as having been received by the railroad as a reimbursement for capital expenditures in completing such project. On the other hand, sums paid out by the Federal Government to fulfil its guarantee of minimum operating revenue to railroads during the six months following relinquishment of their control by that government were found to be taxable income. Such payments were distinguished from those excluded from computation of income in the preceding case in that the former were neither bonuses, nor gifts, nor subsidies; "that is, contributions to capital."[31] GAINS IN THE FORM OF REAL ESTATE; WHEN TAXABLE AS INCOME When through forfeiture of a lease in 1933, a landlord became possessed of a new building erected on his land by the outgoing tenant, the resulting gain to the former was taxable to him in that year. Although "economic gain is not always taxable as income, it is settled that the realization of gain need not be in cash derived from the sale of an asset. * * * The fact that the gain is a portion of the value of the property received by the * * * [landlord] does not negative its realization. * * * [Nor is it necessary] to recognition of taxable gain that * * * [the landlord] should be able to sever the improvement begetting the gain from his original capital." Hence, the taxpayer was incorrect in contending that the amendment "does not permit the taxation of such [a] gain without apportionment amongst the states."[32] Consistently with this holding the Court has also ruled that when an apartment house was acquired by bequest subject to an unassumed mortgage, and several years thereafter was sold for a price slightly in excess of the mortgage, the basis for determining the gain from that sale was the difference between the selling price, undiminished by the amount of the mortgage, and the value of the property at the time of the acquisition, less deductions for depreciation during the years the building was held by the taxpayer. The latter's contention that the Revenue Act, as thus applied, taxed something which was not revenue was declared to be unfounded.[33] GAINS IN THE FORM OF BEQUESTS; WHEN TAXABLE AS INCOME As against the argument of a donee that a gift of stock became a capital asset when received and that therefore, when disposed of, no part of that value could be treated as taxable income to said donee, the Court has declared that it was within the power of Congress to require a donee of stock, who sells it at a profit, to pay income tax on the difference between the selling price and the value when the donor acquired it.[34] Moreover, "the receipt in cash or property * * * not [being] the only characteristic of realization of income to a taxpayer on the cash receipts basis," it follows that one who is normally taxable only on the receipt of interest payments cannot escape taxation thereon by giving away his right to such income in advance of payment. When "the taxpayer does not receive payment of income in money or property, realization may occur when the last step is taken by which he obtains the fruition of the economic gain which has already accrued to him." Hence an owner of bonds, reporting on the cash receipts basis, who clipped interest coupons therefrom before their due date and gave them to his son, was held to have realized taxable income in the amount of said coupons, notwithstanding that his son had collected them upon maturity later in the year.[35] DIMINUTION OF LOSS, NOT INCOME Mere diminution of loss is neither gain, profit, nor income. Accordingly, one who in 1913 borrowed a sum of money to be repaid in German marks and who subsequently lost said money in a business transaction cannot be taxed on the curtailment of debt effected by using depreciated marks in 1921 to settle a liability of $798,144 for $113,688, the "saving" having been exceeded by a loss on the entire operation.[36] DATES APPLICABLE IN COMPUTATION OF TAXABLE GAINS With a frequency that for obvious reasons is progressively diminishing, the Court has also been called upon to resolve questions as to whether gains, realized after 1913, on transactions consummated prior to ratification of the Sixteenth Amendment are taxable, and if so, how such tax is to be determined. The Court's answer generally has been that if the gain to the person whose income is under consideration became such subsequently to the date at which the amendment went into effect; namely, March 1, 1913, and is a real and not merely an apparent gain, said gain is taxable. Thus, one who purchased stock in 1912 for $500 could not limit his taxable gain to the difference between $695, the value of the stock on March 1, 1913 and $13,931, the price obtained on the sale thereof in 1916; but was obliged to pay tax on the entire gain, that is, the difference between the original purchase price and the proceeds of the sale.[37] Conversely, one who acquired stock in 1912 for $291,600 and who sold the same in 1916 for only $269,346, incurred a loss and could not be taxed at all, notwithstanding the fact that on March 1, 1913, his stock had depreciated to $148,635.[38] On the other hand, although the difference between the amount of life insurance premiums, paid as of 1908, and the amount distributed in 1919, when the insured received the amount of his policy plus cash dividends apportioned thereto since 1908, constituted a gain, that portion of the latter which accrued between 1908 and 1913 was deemed to be an accretion of capital and hence not taxable.[39] DEDUCTIONS; EXEMPTIONS, ETC. Notwithstanding the authorization contained in the Sixteenth Amendment to tax income "from whatever source derived," Congress has been held not to be precluded thereby from granting exemptions.[40] Thus, the fact that "under the Revenue Acts of 1913, 1916, 1917, and 1918, stock fire insurance companies were taxed * * * upon gains realized from the sale * * * of property accruing subsequent to March 1, 1913," but were not so taxed by the Revenue Acts of 1921, 1924, and 1926, did not prevent Congress, under the terms of the Revenue Act of 1928, from taxing all the gain attributable to increase in value after March 1, 1913 which such a company realized from a sale of property in 1928. The constitutional power of Congress to tax a gain being well established, Congress, was declared competent to choose "the moment of its realization and the amount realized"; and "its failure to impose a tax upon the increase in value in the earlier years * * * [could not] preclude it from taxing the gain in the year when realized * * *"[41] Congress is equally well equipped with the "power to condition, limit, or deny deductions from gross incomes in order to arrive at the net that it chooses to tax."[42] Accordingly, even though the rental value of a building used by its owner does not constitute income within the meaning of the amendment,[43] Congress was competent to provide that an insurance company shall not be entitled to deductions for depreciation, maintenance, and property taxes on real estate owned and occupied by it unless it includes in its computation of gross income the rental value of the space thus used.[44] ILLEGAL GAINS AS INCOME In United States _v._ Sullivan[45] the Court held, in 1927, that gains derived from illicit traffic in liquor were taxable income under the Act of 1921.[46] Said Justice Holmes for the unanimous Court: "We see no reason * * * why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay."[47] But in Commissioner _v._ Wilcox,[48] decided in 1946, Justice Murphy, speaking for a majority of the Court, held that embezzled money was not taxable income to the embezzler, although any gain he derived from the use of it would be. Justice Burton dissented on the basis of the Sullivan Case. In Rutkin _v._ United States,[49] decided in 1952, a sharply divided Court cuts loose from the metaphysics of the Wilcox case and holds that Congress has the power under Amendment XVI to tax as income monies received by an extortioner. Notes [1] Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429 (1895); 158 U.S. 601 (1895). [2] 28 Stat. 509. [3] The Court conceded that taxes on Incomes from "professions, trades, employments, or vocations" levied by this act were excise taxes and therefore valid. The entire statute, however, was voided on the ground that Congress never intended to permit the entire "burden of the tax to be borne by professions, trades, employments, or vocations" after real estate and personal property had been exempted. 158 U.S. 601, 635 (1895). [4] Springer _v._ United States, 102 U.S. 586 (1881). [5] 13 Stat. 223 (1864). [6] For an account of the Pollock decision _see_ pp. 319-320. [7] 173 U.S. 509 (1899). [8] 178 U.S. 41 (1900). [9] 184 U.S. 608 (1902). [10] Flint _v._ Stone Tracy Co., 220 U.S. 107 (1911). [11] Brushaber _v._ Union P.R. Co., 240 U.S. 1 (1916); Stanton _v._ Baltic Min. Co., 240 U.S. 103 (1916); Tyee Realty Co. _v._ Anderson, 210 U.S. 115 (1916). [12] Brushaber _v._ Union P.R. Co., 240 U.S. 1, 18-19 (1916). [13] Stanton _v._ Baltic Min. Co., 240 U.S. 103, 112 (1916). [14] Stratton's Independence _v._ Howbert, 231 U.S. 399 (1914); Doyle _v._ Mitchell Bros. Co., 247 U.S. 179 (1918). [15] Eisner _v._ Macomber, 252 U.S. 189 (1920); Bowers _v._ Kerbaugh-Empire Co., 271 U.S. 170 (1926). [16] 247 U.S. 339, 344 (1918).--On the other hand, in Lynch _v._ Turrish, 247 U.S. 221 (1918), the single and final dividend distributed upon liquidation of the entire assets of a corporation, although equalling twice the par value of the capital stock, was declared to represent only the intrinsic value of the latter earned prior to the effective date of the amendment, and hence was not taxable as income to the shareholder in the year in which actually received. Similarly, in Southern P. Co. _v._ Lowe, 247 U.S. 330 (1918) dividends paid out of surplus accumulated before the effective date of the amendment by a railway company whose entire capital stock was owned by another railway company and whose physical assets were leased to and used by the latter was declared to be a nontaxable bookkeeping transaction between virtually identical corporations. [17] 247 U.S. 347 (1918). [18] 252 U.S. 189, 206-208 (1920). [19] Eisner _v._ Macomber, 252 U.S. 189, 207, 211-212 (1920). This decision has been severely criticized, chiefly on the ground that gains accruing to capital over a period of years are not income and are not transformed into income by being dissevered from capital through sale or conversion. Critics have also experienced difficulty in understanding how a tax on income which has been severed from capital can continue to be labeled a "direct" tax on the capital from which the severance has thus been made. Finally, the contention has been made that in stressing the separate identities of a corporation and its stockholders, the Court overlooked the fact that when a surplus has been accumulated, the stockholders are thereby enriched, and that a stock dividend may therefore be appropriately viewed simply as a device whereby the corporation reinvests money earned in their behalf. _See also_ Merchants' Loan & T. Co. _v._ Smietanka, 255 U.S. 509 (1921). [20] Reconsideration was refused in Helvering _v._ Griffiths, 318 U.S. 371 (1943). [21] United States _v._ Phellis, 257 U.S. 156 (1921); Rockefeller _v._ United States, 257 U.S. 176 (1921). _See also_ Cullinan _v._ Walker, 262 U.S. 134 (1923). In Marr _v._ United States, 268 U.S. 536, 540-541 (1925) it was held that the increased market value of stock issued by a new corporation in exchange for stock of an older corporation, the assets of which it was organized to absorb, was subject to taxation as income to the holder, notwithstanding that the income represented profits of the older corporation and that the capital remained invested in the same general enterprise. Weiss _v._ Stearn, 265 U.S. 242 (1924), in which the additional value in new securities was held not taxable, was likened to Eisner _v._ Macomber, and distinguished from the aforementioned cases on the ground of preservation of corporate identity. Although the "new corporation had * * * been organized to take over the assets and business of the old * * *, the corporate identity was deemed to have been substantially maintained because the new corporation was organized under the laws of the same State with presumably the same powers as the old. There was also no change in the character of the securities issued," with the result that "the proportional interest of the stockholder after the distribution of the new securities was deemed to be exactly the same." [22] Miles _v._ Safe Deposit & Trust Co., 259 U.S. 247 (1922). [23] Koshland _v._ Helvering, 298 U.S. 441 (1936) [24] Helvering _v._ Gowran, 302 U.S. 238 (1937). [25] Helvering _v._ National Grocery Co., 304 U.S. 282, 288-289 (1938). In Helvering _v._ Mitchell, 303 U.S. 391 (1938) the defendant contended the collection of 50% of any deficiency in addition to the deficiency alleged to have resulted from a fraudulent intent to evade the income tax amounted to the imposition of a criminal penalty. The Court, however, described the additional sum as a civil and not a criminal sanction, and one which could be constitutionally employed to safeguard the Government against loss of revenue. In contrast, the exaction upheld in Helvering _v._ National Grocery Co., though conceded to possess the attributes of a civil sanction, was declared to be sustainable as a tax. [26] 311 U.S. 46 (1940). _See also_ Crane-Johnson Co. _v._ Helvering, 311 U.S. 54 (1940). [27] 311 U.S. 46, 53. Another provision of the Revenue Act, requiring undistributed net income of a foreign personal holding company to be included in the gross income of citizens or residents who are shareholders in such company, was upheld as constitutional in Rodney _v._ Hoey, 53 F. Supp. 604, 607-608 (1944). [28] Farmers Union Co-op Co. _v._ Commissioner of Int. Rev., 90 F. (2d) 488, 491, 492 (1937). [29] Burk-Waggoner Oil Asso. _v._ Hopkins, 269 U.S. 110 (1925). [30] 268 U.S. 628 (1925). [31] Texas & P. Ry. Co. _v._ United States, 286 U.S. 285, 289 (1932); Continental Tie & Lumber Co. _v._ United States, 286 U.S. 290 (1932). [32] Helvering _v._ Bruun, 309 U.S. 461, 468-469 (1940). _See also_ Hewitt Realty Co. _v._ Commissioner of Internal Revenue, 76 F. (2d) 880 (1935). [33] Crane _v._ Commissioner, 331 U.S. 1, 15-16 (1947). [34] The donor could not, "by mere gift, enable another to hold this stock free from * * * the right of the sovereign to take part of any increase in its value when separated through sale or conversion and reduced to possession."--Taft _v._ Bowers, 278 U.S. 470, 482, 484 (1929). [35] Helvering _v._ Horst, 311 U.S. 112, 115-116 (1940). [36] Bowers _v._ Kerbaugh-Empire Co., 271 U.S. 170 (1926). [37] Goodrich _v._ Edwards, 255 U.S. 527 (1921). [38] Ibid. _See also_ Walsh _v._ Brewster, 255 U.S. 536 (1921). [39] Lucas _v._ Alexander, 279 U.S. 573 (1929). However, a litigant who, in 1915, reduced to judgment, a suit pending on February 26, 1913 for an accounting under a patent infringement, was unable to have treated as capital, and excluded from the taxable income produced by such settlement, that portion of his claim which had accrued prior to March 1, 1913. Income within the meaning of the amendment was interpreted to be the fruit that is born of capital, not the potency of fruition. All that the taxpayer possessed in 1913 was a contingent chose in action which was inchoate, uncertain, and contested.--United States _v._ Safety Car Heating & L. Co., 297 U.S. 88 (1936). Similarly, purchasers of coal lands subject to mining leases executed before adoption of the amendment could not successfully contend that royalties received during 1920-1926 were payments for capital assets sold before March 1, 1913, and hence not taxable. Such an exemption, these purchasers argued, would have been in harmony with applicable local law whereunder title to coal passes immediately to the lessee on execution of such leases. To the Court, on the other hand, such leases were not to be viewed "as a 'sale' of the mineral content of the soil" inasmuch as minerals "may or may not be present in the leased premises and may or may not be found [therein]. * * * If found, their abstraction * * * is a time consuming operation and the payments made by the lessee * * * do not normally become payable as the result of a single transaction." The result for tax purposes would have been the same even had the lease provided that title to the minerals would pass only "on severance by the lessee."--Bankers Pocahontas Coal Co. _v._ Burnet, 287 U.S. 308 (1932); Burnet _v._ Harmel, 287 U.S. 103, 106-107, 111 (1932). [40] Brushaber _v._ Union Pac. R. Co., 240 U.S. 1 (1916). [41] MacLaughlin _v._ Alliance Ins. Co., 286 U.S. 244, 250 (1932). [42] Helvering _v._ Independent L. Ins. Co., 292 U.S. 371, 381 (1934); Helvering _v._ Winmill, 305 U.S. 79, 84 (1938). [43] A tax on the rental value of property so occupied is a direct tax on the land and must be apportioned.--Helvering _v._ Independent L. Ins. Co., 292 U.S. 371, 378-379 (1934). [44] 292 U.S. 381.--Expenditures incurred in the prosecution of work under a contract for the purpose of earning profits are not capital investments, the cost of which, if converted, must first be restored from the proceeds before there is a capital gain taxable as income. Accordingly, a dredging contractor, recovering a judgment for breach of warranty of the character of the material to be dredged, must include the amount thereof in the gross income of the year in which it was received, rather than of the years during which the contract was performed, even though it merely represents a return of expenditures made in performing the contract and resulting in a loss. The gain or profit subject to tax under the Sixteenth Amendment is the excess of receipts over allowable deductions during the accounting period, without regard to whether or not such excess represents a profit ascertained on the basis of particular transactions of the taxpayer when they are brought to a conclusion.--Burnet _v._ Sanford & B. Co., 282 U.S. 353 (1931). [45] 274 U.S. 259 (1927). [46] 42 Stat. 227, 250, 268. [47] 274 at 263. [48] 327 U.S. 404 (1946). [49] 343 U.S. 130 (1952). AMENDMENT 17 POPULAR ELECTION OF SENATORS Page Historical origin 1207 Right to vote for Senators 1208 POPULAR ELECTION OF SENATORS Amendment 17 Clause 1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. Clause 2. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: _Provided_ That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. Clause 3. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. Historical Origin The ratification of this amendment was the outcome of increasing popular dissatisfaction with the operation of the originally established method of electing Senators. As the franchise became exercisable by greater numbers of people, the belief became widespread that Senators ought to be popularly elected in the same manner as Representatives. Acceptance of this idea was fostered by the mounting accumulation of evidence of the practical disadvantages and malpractices attendant upon legislative selection, such as deadlocks within legislatures resulting in vacancies remaining unfilled for substantial intervals, the influencing of legislative selection by corrupt political organizations and special interest groups through purchase of legislative seats, and the neglect of duties by legislators as a consequence of protracted electoral contests. Prior to ratification, however, many States had perfected arrangements calculated to afford the voters more effective control over the selection of Senators. State laws regulating direct primaries were amended so as to enable voters participating in primaries to designate their preference for one of several party candidates for a senatorial seat: and nominations unofficially effected thereby were transmitted to the legislature. Although their action rested upon no stronger foundation than common understanding, the legislatures generally elected the winning candidate of the majority, and, indeed, in two States, candidates for legislative seats were required to promise to support, without regard to party ties, the senatorial candidate polling the most votes. As a result of such developments, at least 29 States by 1912, one year before ratification, were nominating Senators on a popular basis; and, as a consequence, the constitutional discretion of the legislatures had been reduced to little more than that retained by presidential electors. Right to Vote for Senators Very shortly after ratification it was established that if a person possessed the qualifications requisite for voting for a Senator, his right to vote for such an officer was not derived merely from the constitution and laws of the State in which they are chosen but has its foundation in the Constitution of the United States.[1] Consistently with this view, federal courts more recently have declared that when local party authorities, acting pursuant to regulations prescribed by a party's State executive committee, refused to permit a Negro, on account of his race, to vote in a primary to select candidates for the office of United States Senator, they deprived him of a right secured to him by the Constitution and laws, in violation of this amendment.[2] An Illinois statute, on the other hand, which required that a petition to form, and to nominate candidates for, a new political party be signed by at least 25,000 voters from at least 50 counties was held not to impair any right under Amendment XVII, notwithstanding that 52% of the State's voters were residents of one county, 87% were residents of 49 counties, and only 13% resided in the 53 least populous counties.[3] Notes [1] United States _v._ Aczel, 219 F. 917 (1915), citing Ex parte Yarbrough, 110 U.S. 651 (1884). [2] Chapman _v._ King, 154 F. (2d) 460 (1946); certiorari denied, 327 U.S. 800 (1946). [3] MacDougall _v._ Green, 335 U.S. 281 (1948). AMENDMENT 18 PROHIBITION OF INTOXICATING LIQUORS Page Validity of adoption 1213 Enforcement 1213 Repeal 1213 PROHIBITION OF INTOXICATING LIQUORS Amendment 18 Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. Validity of Adoption Cases relating to this question are presented and discussed under article V. Enforcement Cases produced by enforcement and arising under Amendments Four and Five are considered in the discussion appearing under the latter amendments. Repeal This amendment was repealed by the Twenty-first Amendment, and titles I and II of the National Prohibition Act[1] were subsequently specifically repealed by the act of August 27, 1935.[2] Federal prohibition laws effective in various Districts and Territories were repealed as follows: District of Columbia--April 5, 1933, and January 24, 1934;[3] Puerto Rico and Virgin Islands--March 2, 1934;[4] Hawaii--March 26, 1934;[5] and Panama Canal Zone--June 19, 1934.[6] Taking judicial notice of the fact that ratification of the Twenty-first Amendment was consummated on December 5, 1933, the Supreme Court held that the National Prohibition Act, insofar as it rested upon a grant of authority to Congress by Amendment XVIII thereupon became inoperative; with the result that prosecutions for violations of the National Prohibition Act, including proceedings on appeal, pending on, or begun after, the date of repeal, had to be dismissed for want of jurisdiction. Only final judgments of conviction rendered while the National Prohibition Act was in force remained unaffected.[7] Likewise a heavy "special excise tax," insofar as it could be construed as part of the machinery for enforcing the Eighteenth Amendment, was deemed to have become inapplicable automatically upon the latter's repeal.[8] However, liability on a bond conditioned upon the return on the day of trial of a vessel seized for illegal transportation of liquor was held not to have been extinguished by repeal when the facts disclosed that the trial took place in 1931 and had resulted in conviction of the crew. The liability became complete upon occurrence of the breach of the express contractual condition and a civil action for recovery was viewed as unaffected by the loss of penal sanctions.[9] Notes [1] 41 Stat. 305. [2] 49 Stat. 872. [3] 48 Stat. 28, § 12; 48 Stat. 319. [4] 48 Stat. 361. [5] 48 Stat. 467. [6] 48 Stat. 1116. [7] United States _v._ Chambers, 291 U.S. 217, 222-226 (1934). _See also_ Ellerbee _v._ Aderhold, 5 F. Supp. 1022 (1934); United States ex rel. Randall _v._ United States Marshal for Eastern Dist. of New York, 143 F. (2d) 830 (1944).--The Twenty-first Amendment containing "no saving clause as to prosecutions for offenses theretofore committed," these holdings were rendered unavoidable by virtue of the well-established principle that after "the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force * * *"--Yeaton _v._ United States, 5 Cr. 281, 283 (1809), quoted in United States _v._ Chambers at pages 223-224. [8] United States _v._ Constantine, 296 U.S. 287 (1935). The Court also took the position that even if the statute embodying this "tax" had not been "adopted to penalize [a] violations of the Amendment," but merely to ordain a penalty for violations of State liquor laws, "it ceased to be enforceable at the date of repeal"; for with the lapse of the unusual enforcement powers contained in the Eighteenth Amendment, Congress could not, without infringing upon powers reserved to the States by the Tenth Amendment, "impose cumulative penalties above and beyond those specified by State law for infractions of * * * [a] State's criminal code by its own citizens." Justice Cardozo, with whom Justices Brandeis and Stone were associated, dissented on the ground that, on its face, the statute levying this "tax" was "an appropriate instrument of * * * fiscal policy * * * Classification by Congress according to the nature of the calling affected by a tax * * * does not cease to be permissible because the line of division between callings to be favored and those to be reproved corresponds with a division between innocence and criminality under the statutes of a state."--Ibid. 294, 296, 297-298. In earlier cases it was nevertheless recognized that Congress also may tax what it forbids and that the basic tax on distilled spirits remained valid and enforceable during as well as after the life of the amendment--_See_ United States _v._ Yuginovich, 256 U.S. 450, 462 (1921); United States _v._ Stafoff, 260 U.S. 477 (1923); United States _v._ Rizzo, 297 U.S. 530 (1936). [9] United States _v._ Mack, 295 U.S. 480 (1935). AMENDMENT 19 EQUAL SUFFRAGE Page Origin of the amendment 1219 Validity of adoption 1219 Effect of amendment 1219 EQUAL SUFFRAGE Amendment 19 Clause 1. The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Clause 2. Congress shall have power to enforce this article by appropriate legislation. Origin of the Nineteenth Amendment The adoption of this amendment is attributable in great measure to its advocacy since 1869 by certain long term supporters of women suffrage who had despaired of attaining their goal through modification of individual State laws. Agitation in behalf of women suffrage was recorded as early as the Jackson Administration, but the initial results were meager. Beginning in 1838, Kentucky did authorize women to vote in school elections, and its action was later copied by a number of other States. Kansas in 1887 even granted women unlimited rights to vote in municipal elections. Not until 1869, however, when Wyoming, as a territory, accorded women suffrage on terms of equality with men and continued to grant such privileges after its admission as a State in 1890, did these advocates register a notable victory. Progress thereafter proved discouraging, only ten additional other States having been added to the fold as of 1914; and as a consequence sponsors of equal voting rights for women concentrated on obtaining ratification of this amendment. Validity of Adoption Cases relating to this question are presented and discussed under article V. Effect of Amendment Although owning that the Nineteenth Amendment "applies to men and women alike and by its own force supersedes inconsistent measures, whether federal or State," the Court was unable to concede that a Georgia statute levying on inhabitants of the State a poll tax payment of which is made a prerequisite for voting but exempting females who do not register for voting, in any way abridged the right of male citizens to vote on account of their sex. To accept the appellant's contention, the Court urged, would make the Nineteenth Amendment a limitation on the taxing power.[1] Notes [1] Breedlove _v._ Suttles, 302 U.S. 277, 283-284 (1937). Although other interpretive decisions of federal courts are unavailable, many State courts, taking their cue from pronouncements of the Supreme Court as to the operative effect of the similarly phrased Fifteenth Amendment, have proclaimed that the Nineteenth Amendment did not confer upon women the right to vote but only prohibits discrimination against them in the drafting and administration of laws relating to suffrage qualifications and the conduct of elections. Like the Fifteenth Amendment, the Nineteenth Amendment, according to these State tribunals, is self-executing and by its own force and effect legally expunged the word, "male," and the masculine pronoun from State constitutions and laws defining voting qualifications and the right to vote to the end that such provisions now apply to both sexes.--_See_ State _v._ Mittle, 120 S.C. 526 (1922); writ of error dismissed, 260 U.S. 705 (1922); Graves _v._ Eubank, 205 Ala. 174 (1921); in re Cavellier, 159 Misc. (N.Y.) 212; 287 N.Y.S. 739 (1936). AMENDMENT 20 COMMENCEMENT OF THE TERMS OF THE PRESIDENT, VICE PRESIDENT, AND MEMBERS OF CONGRESS, ETC. Page Extension of Presidential succession 1225 COMMENCEMENT OF THE TERMS OF THE PRESIDENT, VICE PRESIDENT, AND MEMBERS OF CONGRESS, ETC. Amendment 20 Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission. Extension of Presidential Succession Pursuant to the authority conferred upon it by section 3 of this amendment, Congress shaped the Presidential Succession Act of 1948[1] to meet the situation which would arise from the failure of both President elect and Vice President elect to qualify on or before the time fixed for the beginning of the new Presidential term. Notes [1] 62 Stat. 672, 677; 3 U.S.C.A. 19; _See_ p. 388. AMENDMENT 21 REPEAL OF EIGHTEENTH AMENDMENT Page Effect of repeal 1231 Scope of the regulatory power conferred upon the States 1231 Discrimination as between domestic and imported products 1231 Regulation of transportation and "through" shipments 1231 Regulation of imports destined for a federal area 1233 Effect on federal regulation 1233 REPEAL OF EIGHTEENTH AMENDMENT Amendment 21 Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. Effect of Repeal The operative effect of section 1, repealing the Eighteenth Amendment, is considered under the latter amendment. Scope of the Regulatory Power Conferred Upon the States DISCRIMINATION AS BETWEEN DOMESTIC AND IMPORTED PRODUCTS In a series of interpretive decisions rendered shortly after ratification of this amendment, the Court established the proposition that States are competent to adopt legislation discriminating against imported intoxicating liquors in favor of those of domestic origin and that such discrimination offends neither the commerce clause of article I nor the equal protection and due process clauses of the Fourteenth Amendment. Thus, in State Board of Equalization _v._ Young's Market Co.[1] a California statute was upheld which exacted a $500 annual license fee for the privilege of importing beer from other States and a $750 fee for the privilege of manufacturing beer; and in Mahoney _v._ Triner Corp.[2] a Minnesota statute was sustained which prohibited a licensed manufacturer or wholesaler from importing any brand of intoxicating liquor containing more than 25% of alcohol by volume and ready for sale without further processing, unless such brand was registered in the United States Patent Office. Also validated in Indianapolis Brewing Co. _v._ Liquor Commission[3] and Finch & Co. _v._ McKittrick[4] were retaliation laws enacted by Michigan and Missouri, respectively, by the terms of which sales in each of these States of beer manufactured in a State already discriminating against beer produced in Michigan or Missouri were rendered unlawful. Conceding, in State Board of Equalization _v._ Young's Market Co.,[5] that "prior to the Twenty-first Amendment it would obviously have been unconstitutional to have imposed any fee for * * * the privilege of importation * * * even if the State had exacted an equal fee for the privilege of transporting domestic beer from its place of manufacture to the [seller's] place of business," the Court proclaimed that this amendment "abrogated the right to import free, so far as concerns intoxicating liquors." Inasmuch as the States were viewed as having acquired therefrom an unconditioned authority to prohibit totally the importation of intoxicating beverages, it logically followed that any discriminatory restriction falling short of total exclusion was equally valid, notwithstanding the absence of any connection between such restriction and public health, safety or morals. As to the contention that the unequal treatment of imported beer would contravene the equal protection clause, the Court succinctly observed that a "classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth."[6] REGULATION OF TRANSPORTATION AND "THROUGH" SHIPMENTS Lately, however, when passing upon the constitutionality of legislation regulating the carriage of liquor interstate, a majority of the Justices have been disposed to by-pass the Twenty-first Amendment and to resolve the issue exclusively in terms of the commerce clause and State police power. This trend toward devaluation of the Twenty-first Amendment was set in motion by Ziffrin, Inc. _v._ Reeves[7] wherein a Kentucky statute, forbidding the transportation of intoxicating liquors by carriers other than licensed common carriers, was enforced as to an Indiana corporation, engaged in delivering liquor obtained from Kentucky distillers to consignees in Illinois; but licensed only as a contract carrier under the Federal Motor Carriers Act. After acknowledging that "the Twenty-first Amendment sanctions the right of a State to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause,"[8] the Court then proceeded to found its ruling largely upon decisions antedating the amendment which sustained similar State regulations as a legitimate exercise of the police power not unduly burdening interstate commerce. In the light of the cases enumerated in the preceding paragraph, wherein the Twenty-first Amendment was construed as according a plenary power to the States, such extended emphasis on the police power and the commerce clause would seem to have been unnecessary. Thereafter, a total eclipse of the Twenty-first Amendment was recorded in Duckworth _v._ Arkansas[9] and Carter _v._ Virginia[10] wherein, without even considering that amendment, a majority of the Court upheld, as not contravening the commerce clause, statutes regulating the transport through the State of liquor cargoes originating and ending outside the regulating State's boundaries.[11] REGULATION OF IMPORTS DESTINED FOR A FEDERAL AREA Intoxicating beverages brought into a State for ultimate delivery at a National Park located therein but over which the United States retained exclusive jurisdiction has been construed as not constituting "transportation * * * into [a] State for delivery and use therein" within the meaning of section 2 of this amendment. The importation having had as its objective delivery and use in a federal area over which the State retained no jurisdiction, the increased powers which the latter acquired from the Twenty-first Amendment were declared to be inapplicable. California therefore could not extend the importation license and other regulatory requirements of its Alcoholic Beverage Control Act to a retail liquor dealer doing business in the Park.[12] Effect on Federal Regulation The Twenty-first Amendment of itself did not, it was held, bar a prosecution under the federal Sherman Antitrust Law of producers, wholesalers, and retailers charged with conspiring to fix and maintain retail prices of alcoholic beverages in Colorado.[13] In a concurring opinion, supported by Justice Roberts, Justice Frankfurter took the position that if the State of Colorado had in fact "* * * authorized the transactions here complained of, the Sherman Law could not override such exercise of state power. * * * [Since] the Sherman Law, * * *, can have no greater potency than the Commerce Clause itself, it must equally yield to state power drawn from the Twenty-first Amendment."[14] All other efforts to invoke the Twenty-first Amendment as a limitation upon the constitutional powers of the National Government, notably to invalidate the imposition, pursuant to the war power, of federal price controls on retail sales of liquors, have been equally abortive.[15] Notes [1] 299 U.S. 59 (1936). [2] 304 U.S. 401 (1938). [3] 305 U.S. 391 (1939). [4] 305 U.S. 395 (1939). [5] 299 U.S. 59, 62 (1936). [6] Ibid 63-64. In the three decisions rendered subsequently, the Court merely restated these conclusions. The contention that discriminatory regulation of imported liquors violated the due process clause was summarily rejected in Indianapolis Brewing Co. _v._ Liquor Commission, 305 U.S. 391, 394 (1939). [7] 308 U.S. 132 (1939). [8] Ibid. 138. [9] 314 U.S. 390 (1941). [10] 321 U.S. 131 (1944). _See also_ Cartlidge _v._ Rainey, 168 F. (2d) 841 (1948); certiorari denied, 335 U.S. 885 (1948). [11] Arkansas required a permit for the transportation of liquor across its territory, but granted the same upon application and payment of a nominal fee. Virginia required carriers engaged in similar through-shipments to use the most direct route, carry a bill of lading describing that route, and post a $1000 bond conditioned on lawful transportation; and also stipulated that the true consignee be named in the bill of lading and be one having the legal right to receive the shipment at destination. [12] Collins _v._ Yosemite Park, 304 U.S. 518, 537-538 (1938). [13] United States _v._ Frankfort Distilleries, Inc., 324 U.S. 293, 297-299 (1945). [14] Ibid. 301-302. [15] Jatros _v._ Bowles, 143 F. (2d) 453, 455 (1944); Barnett _v._ Bowles, 151 F. (2d) 77, 79 (1945), certiorari denied, 326 U.S. 766 (1945); Dowling Bros. Distilling Co. _v._ United States, 153 F. (2d) 353, 357 (1946), certiorari denied, (Gould et al. _v._ United States) 328 U.S. 848 (1946); rehearing denied, 329 U.S. 820 (1946). AMENDMENT 22 PRESIDENTIAL TENURE Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. Section 2. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress. ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE SUPREME COURT OF THE UNITED STATES 1. Act of September 24, 1789 (1 Stat. 81, sec. 13, in part). Provision that "* * * [the Supreme Court] shall have power to issue * * * writs of mandamus, in cases warranted by the principles and usages of law, to any * * * persons holding office, under authority of the United States" as applied to the issue of mandamus to the Secretary of State requiring him to deliver to plaintiff a commission (duly signed by the President) as justice of the peace in the District of Columbia, _held_ an attempt to enlarge the original jurisdiction of the Supreme Court, fixed by article III, section 2. Marbury _v._ Madison, 1 Cr. 137 (February 24, 1803). 2. Act of February 20, 1812 (2 Stat. 677, ch. 22). Provisions authorizing land officers to examine into "validity of claims to land * * * which are derived from confirmations made * * * by the governors of the Northwest * * * territory", _held_ not to authorize annulment of title confirmed by Governor St. Clair in 1799, nor to validate a subsequent sale and patent by the United States. (_See_ Fifth Amendment.) Reichert _v._ Felps, 6 Wallace 160 (March 16, 1868). 3. Act of March 6, 1820 (3 Stat. 548, sec. 8, proviso). The Missouri Compromise, prohibiting slavery within the Louisiana Territory north of 36° 30', except Missouri, _held_ not warranted as a regulation of Territory belonging to the United States under article IV, section 3, clause 2 (and _see_ Fifth Amendment). Dred Scott _v._ Sandford, 19 Howard 393 (March 6, 1857). 4. Act of February 25, 1862 (12 Stat. 345, sec. 1); July 11, 1862 (12 Stat. 532, sec. 1); March 3, 1863 (12 Stat. 711, sec. 3), each in part only. "Legal tender clauses", making noninterest-bearing United States notes legal tender in payment of "all debts, public and private", so far as applied to debts contracted before passage of the act, _held_ not within express or implied powers of Congress under article I, section 8, and inconsistent with article I, section 10, and Fifth Amendment. Hepburn _v._ Griswold, 8 Wallace 603 (February 7, 1870); overruled in Knox _v._ Lee (Legal Tender cases), 12 Wallace 457 (May 1, 1871). 5. Act of March 3, 1863 (12 Stat. 756, ch. 81, sec. 5). "So much of the fifth section * * * as provides for the removal of a judgment in a State court, and in which the cause was tried by a jury to the circuit court of the United States for a retrial on the facts and law, is not in pursuance of the Constitution, and is void" under the Seventh Amendment. The Justices _v._ Murray, 9 Wallace 274 (March 14, 1870). 6. Act of March 3, 1863 (12 Stat. 766, ch. 92, sec. 5). Provision for an appeal from the Court of Claims to the Supreme Court--there being, at the time, a further provision (sec. 14) requiring an estimate by the Secretary of the Treasury before payment of final judgments, _held_ to contravene the judicial finality intended by the Constitution, article III. Gordon _v._ United States, 2 Wallace 561 (March 10, 1865). (Case was dismissed without opinion; the grounds upon which this decision was made were stated in a posthumous opinion by Chief Justice Taney printed in the appendix to volume 117 of the U.S. Reports at p. 697.) 7. Act of June 30, 1864 (13 Stat. 311, ch. 174, sec. 13). Provision that "any prize cause now pending in any circuit court shall, on the application of all parties in interest * * * be transferred by that court to the Supreme Court * * *", as applied in a case where no action had been taken in the Circuit Court on the appeal from the District Court, _held_ to propose an appeal procedure not within article III, section 2. The "Alicia", 7 Wallace 571 (January 25, 1869). 8. Act of January 24, 1865 (13 Stat. 424, ch. 20). Requirement of a test oath (disavowing actions in hostility to the United States) before admission to appear as attorney in a Federal court by virtue of any previous admission, _held_ invalid as applied to an attorney who had been pardoned by the President for all offenses during the Rebellion--as _ex post facto_ (art. I, sec. 9, clause 3) and an interference with the pardoning power (art. II, sec. 2, clause 1). Ex parte Garland, 4 Wallace 333 (January 14, 1867). 9. Act of July 13, 1866 (14 Stat. 138), amending act of June 30, 1864 (13 Stat. 284, ch. 173, sec. 122). Tax on indebtedness of railroads, "* * * to whatsoever party or person the same may be payable", as applied to railroad bonds held by a municipal corporation under authority of the State, _held_ an infringement of reserved State sovereignty. United States _v._ Baltimore & O.R. Co., 17 Wallace 322 (April 3, 1873). 10. Act of March 2, 1867 (14 Stat. 477, ch. 169, sec. 13), amending act of June 30, 1864 (13 Stat. 281, sec. 116). Tax on income of "* * * every person residing in the United States * * * whether derived from * * * salaries * * * or from any source whatever * * *", as applied to income of State judges, _held_ an interference with reserved powers of State. (_See_ Tenth Amendment.) The Collector _v._ Day, 11 Wallace 113 (April 3, 1871). 11. Act of March 2, 1867 (14 Stat. 484, ch. 169, sec. 29). General prohibition on sale of naphtha, etc., for illuminating purposes, if inflammable at less temperature than 110° F., _held_ invalid "except so far as the section named operates within the United States, but without the limits of any State," as being a mere police regulation. United States _v._ Dewitt, 9 Wallace 41 (February 21, 1870). 12. Act of May 31, 1870 (16 Stat. 140, ch. 114, sees. 3, 4). Provisions penalizing (1) refusal of local election officials to permit voting by persons offering to qualify under State laws, applicable to any citizens; and (2) hindering of any person from qualifying or voting, _held_ invalid under Fifteenth Amendment. United States _v._ Reese et al., 92 U.S. 214 (March 27, 1876). 13. Act of July 12, 1870 (16 Stat. 235, ch. 251). Provision making Presidential pardons inadmissible in evidence in Court of Claims, prohibiting their use by that court in deciding claims or appeals, and requiring dismissal of appeals by the Supreme Court in cases where proof of loyalty had been made otherwise than as prescribed by law, _held_ an interference with judicial power under article III, section 1, and with the pardoning power under article II, section 2, clause 1. United States _v._ Klein, 13 Wallace 128 (January 29, 1872). 14. Act of June 22, 1874 (18 Stat. 187, sec. 5). Provision authorizing Federal courts to require production of documents in proceedings, other than criminal, under the revenue laws (the allegations expected to be proved thereby to be taken as proved, on failure to produce such documents), _held_ as applied to a suit for forfeiture under the customs laws, to constitute unreasonable search in violation of the Fourth Amendment. Boyd _v._ United States, 116 U.S. 616 (February 1, 1886). 15. Revised Statutes 1977 (act of May 31, 1870, 16 Stat. 144). Provision that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts * * * as is enjoyed by white citizens * * *," _held_ invalid under the Thirteenth Amendment. Hodges _v._ United States, 203 U.S. 1 (May 28, 1906). 16. Revised Statutes 4937-4947 (act of July 8, 1870, 16 Stat. 210), and act of August 14, 1876 (19 Stat. 141). Original trademark law, applying to marks "for exclusive use within the United States," and a penal act designed solely for the protection of rights defined in the earlier measure, _held_ not supportable by article I, section 8, clause 8 (copyright clause), nor article I, section 8, clause 3 (interstate commerce). Trade-Mark Cases, 100 U.S. 82 (November 17, 1879). 17. Revised Statutes 5132, subdivision 9 (act of March 2, 1867, 14 Stat. 539). Provision penalizing "any person respecting whom bankruptcy proceedings are commenced * * * who, within 3 months before the commencement of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud * * *," _held_ a police regulation not within the bankruptcy power (art. I, sec. 8, clause 4). United States _v._ Fox, 95 U.S. 670 (January 7, 1878). 18. Revised Statutes 5507 (act of May 31, 1870, 16 Stat. 141, sec. 4). Provision penalizing "every person who prevents, hinders, controls, or intimidates another from exercising * * * the right of suffrage, to whom that right is guaranteed by the Fifteenth Amendment to the Constitution of the United States, by means of bribery * * *," _held_ not authorized by the said Fifteenth Amendment. James _v._ Bowman, 190 U.S. 127 (May 4, 1903). 19. Revised Statutes 5519 (act of April 20, 1871, 17 Stat. 13, ch. 22, sec. 2). Section providing punishment in case "two or more persons in any State * * * conspire * * * for the purpose of depriving * * * any person * * * of the equal protection of the laws * * * or for the purpose of preventing or hindering the constituted authorities of any State * * * from giving or securing to all persons within such State * * * the equal protection of the laws * * *," _held_ invalid for punishment of conspiracy within a State--as not supported by the Thirteenth to Fifteenth Amendments. United States _v._ Harris, 106 U.S. 629 (January 22, 1883). In Baldwin _v._. Franks, 120 U.S. 678 (March 7, 1887), an attempt was made to distinguish the Harris case, and apply it to conspiracy against aliens, though within a State, and _held_, the provision was not separable in such case. 20. Revised Statutes of the District of Columbia, section 1064 (act of June 17, 1870, 16 Stat. 154, ch. 133, sec. 3). Provision that "prosecutions in the police court [of the District of Columbia] shall be by information under oath, without indictment by grand jury or trial by petit jury," as applied to punishment for conspiracy, _held_ to Contravene article III, section 2, clause 3, requiring jury trial of all crimes. Callan _v._ Wilson, 127 U.S. 540 (May 14, 1888). 21. Act of March 1, 1875 (18 Stat. 336, secs. 1, 2). Provision "That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations * * * of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude"--subject to penalty, _held_ not to be supported by the Thirteenth or Fourteenth Amendments. Civil Rights Cases, 109 U.S. 3 (October 15, 1883), as to operation within States. Butts _v._ Merchants and Miners Transportation Co., 230 U.S. 126 (June 16, 1913) as to operation outside the States. 22. Act of March 3, 1875 (18 Stat. 479, ch. 144, sec. 2). Provision that "if the party [i.e., a person stealing property from the United States] has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against [the] receiver that the property of the United States therein described has been embezzled, stolen, or purloined," _held_ to contravene the Sixth Amendment. Kirby _v._ United States, 174 U.S. 47 (April 11, 1899). 23. Act of July 12, 1876 (19 Stat. 80, sec. 6, in part). Provision that "postmasters of the first, second, and third classes * * * may be removed by the President by and with the advice and consent of the Senate," _held_ to infringe the executive power under article II, section 1, clause 1. Myers _v._ United States, 272 U.S. 52 (October 25, 1926). 24. Act of August 14, 1876 (19 Stat. 141, trademark act), _see_ Revised Statutes 4937. 25. Act of August 11, 1888 (25 Stat. 411). Clause, in a provision for the purchase or condemnation of a certain lock and dam in the Monongahela River, that "* * * in estimating the sum to be paid by the United States, the franchise of said corporation to collect tolls shall not be considered or estimated * * *," _held_ to contravene the Fifth Amendment. Monongahela Navigation Co. _v._ United States, 148 U.S. 312 (March 27, 1893). 26. Act of May 5, 1892 (27 Stat. 25, ch. 60, sec. 4). Provision of a Chinese exclusion act, that Chinese persons "convicted and adjudged to be not lawfully entitled to be or remain in the United States shall be imprisoned at hard labor for a period not exceeding 1 year and thereafter removed from the United States * * *" (such conviction and judgment being had before a justice, judge, or commissioner upon a summary hearing), _held_ to contravene the Fifth and Sixth Amendments. Wong Wing _v._ United States, 163 U.S. 228 (May 18, 1896). 27. Joint Resolution of August 4, 1894 (28 Stat. 1018, No. 41). Provision authorizing the Secretary of the Interior to approve a second lease of certain land by an Indian chief in Minnesota (granted to lessor's ancestor by art. 9 of a treaty with the Chippewa Indians), _held_ an interference with judicial interpretation of treaties under article III, section 2, clause 1 (and repugnant to the Fifth Amendment). Jones _v._ Meehan, 175 U.S. 1 (October 30, 1899). 28. Act of August 27, 1894 (28 Stat. 553-560, secs. 27-37). Income tax provisions of the tariff act of 1894. "The tax imposed by sections 27 and 37, inclusive * * * so far as it falls on the income of real estate and of personal property, being a direct tax within the meaning of the Constitution, and, therefore, unconstitutional and void because not apportioned according to representation [art. I, sec. 2, clause 3], all those sections, constituting one entire scheme of taxation, are necessarily invalid" (158 U.S. 601, 637). Pollock _v._ Farmers' Loan and Trust Co., 157 U.S. 429 (April 8, 1895) and rehearing, 158 U.S. 601 (May 20, 1895). 29. Act of January 30, 1897 (29 Stat. 506, ch. 109). Prohibition on sale of liquor "* * * to any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government * * *," _held_ a police regulation infringing State powers, and not warranted by the commerce clause, article I, section 8, clause 3. Matter of Heff, 197 U.S. 488 (April 10, 1905) overruled in United States _v._ Nice, 241 U.S. 591 (1916). 30. Act of June 1, 1898 (30 Stat. 428). Section 10, penalizing "any employer subject to the provisions of this act" who should "threaten any employee with loss of employment * * * because of his membership in * * * a labor corporation, association, or organization" (the act being applicable "to any common carrier * * * engaged in the transportation of passengers, or property * * * from one State * * * to another State * * *," etc.), _held_ an infringement of the Fifth Amendment, not supported by the commerce clause. Adair _v._ United States, 208 U.S. 161 (January 27, 1908). 31. Act of June 13, 1898 (30 Stat. 451, 459). Stamp tax on foreign bills of lading, _held_ a tax on exports in violation of article I, section 9. Fairbank _v._ United States, 181 U.S. 283 (April 15, 1901). 32. Same (30 Stat. 451, 460). Tax on charter parties, as applied to shipments exclusively from ports in United States to foreign ports, _held_ a tax on exports in violation of article I, section 9. United States _v._ Hvoslef, 237 U.S. 1 (March 22, 1915). 33. Same (30 Stat. 451, 461). Tax on policies of marine insurance, as applied to insurance during voyage to foreign ports, _held_ a tax on exports in violation of article I, section 9. Thames and Mersey Marine Insurance Co. _v._ United States, 237 U.S. 19 (April 5, 1915). 34. Act of June 6, 1900 (31 Stat. 359, sec. 171). Section of the Alaska Code providing for a six-person jury in trials for misdemeanors, _held_ repugnant to the Sixth Amendment, requiring "jury" trial of crimes. Rassmussen _v._ United States, 197 U.S. 516 (April 10, 1905). 35. Act of March 3, 1901 (31 Stat. 1341, sec. 935). Section of the District of Columbia Code granting the same right of appeal, in criminal cases, to the United States or the District of Columbia as to the defendant, but providing that a verdict was not to be set aside for error found in rulings during trial, _held_ an attempt to take an advisory opinion, contrary to article III, section 2. United States _v._ Evans, 213 U.S. 297 (April 19, 1909). 36. Act of June 11, 1906 (34 Stat. 232, ch. 3073). Act providing that "every common carrier engaged in trade or commerce in the District of Columbia * * * or between the several States * * * shall be liable to any of its employees * * * for all damages which may result from the negligence of any of its officers * * * or by reason of any defect * * * due to its negligence in its cars, engines * * * roadbed", etc., _held_ not supportable under article I, section 8, clause 3 as applied to employees engaged in moving trains in interstate commerce. Employers' Liability Cases, 207 U.S. 463 (January 6, 1908). [The act was upheld as to the District of Columbia in Hyde _v._ Southern R. Co., 31 App. D.C. 466 [1908]; and as to Territories, in El Paso and Northeastern R. Co. _v._ Gutierrez, 215 U.S. 87 [1909].] 37. Act of June 16, 1906 (34 Stat. 269, sec. 2). Provision of Oklahoma Enabling Act restricting relocation of the State capital prior to 1913, _held_ not supportable by article IV, section 3, authorizing admission of new States. Coyle _v._ Oklahoma (Smith), 221 U.S. 559 (May 29, 1911). 38. Act of February 20, 1907 (34 Stat. 899, sec. 3). Provision in the Immigration Act of 1907 penalizing "whoever * * * shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution * * * any alien woman or girl, within 3 years after she shall have entered the United States," _held_ an exercise of police power not within the control of Congress over immigration (whether drawn from the commerce clause or based on inherent sovereignty). Keller _v._ United States, 213 U.S. 138 (April 5, 1909). 39. Act of March 1, 1907 (34 Stat. 1028). Provisions authorizing certain Indians "to institute their suits in the Court of Claims to determine the validity of any acts of Congress passed since * * * 1902, insofar as said acts * * * attempt to increase or extend the restrictions upon alienation * * * of allotments of lands of Cherokee citizens * * *," and giving a right of appeal to the Supreme Court, _held_ an attempt to enlarge the judicial power restricted by article III, section 2, to cases and controversies. Muskrat _v._ United States and Brown and Gritts _v._ United States, 219 U.S. 346 (January 23, 1911). 40. Act of May 27, 1908 (35 Stat. 313, sec. 4). Provision making locally taxable "all land [of Indians of the Five Civilized Tribes] from which restrictions have been or shall be removed," _held_ a violation of the Fifth Amendment, in view of the Atoka Agreement, embodied in the Curtis Act of June 28, 1898, providing tax-exemption for allotted lands while title in original allottee, not exceeding 21 years. Choate _v._ Trapp, 224 U.S. 665 (May 13, 1912). 41. Act of August 19, 1911 (37 Stat. 28). A proviso in section 8 of the Federal Corrupt Practices Act fixing a maximum authorized expenditure by a candidate for Senator "in any campaign for his nomination and election," as applied to a primary election, _held_ not supported by article I, section 4, giving Congress power to regulate the manner of holding elections for Senators and Representatives. Newberry _v._ United States, 256 U.S. 232 (May 2, 1921). 42. Act of June 18, 1912 (37 Stat. 136, sec. 8). Part of section 8 giving the Juvenile Court of the District of Columbia (proceeding upon information) concurrent jurisdiction of desertion cases (which were, by law, misdemeanors punishable by fine or imprisonment in the workhouse at hard labor for 1 year), _held_ invalid under the Fifth Amendment, which gives right to presentment by a grand jury in case of infamous crimes. United States _v._ Moreland, 258 U.S. 433 (April 17, 1922). 43. Act of March 4, 1913 (37 Stat. 988, part of par. 64). Provision of the District of Columbia Public Utility Commission Act authorizing appeal to the United States Supreme Court from decrees of the District of Columbia Court of Appeals modifying valuation decisions of the Utilities Commission, _held_ an attempt to extend the appellate jurisdiction of the Supreme Court to cases not strictly judicial within the meaning of article III, section 2. Keller _v._ Potomac Electric Power Co. et al., 261 U.S. 428 (April 9, 1923). 44. Act of September 1, 1916 (39 Stat. 675, ch. 432, entire). The original Child Labor Law, providing "that no producer * * * shall ship * * * in interstate commerce * * * any article or commodity the product of any mill * * * in which within 30 days prior to the removal of such product therefrom children under the age of 14 years have been employed or permitted to work more than 8 hours in any day, or more than 6 days in any week * * *," _held_ not within the commerce power of Congress. Hammer _v._ Dagenhart, 247 U.S. 251 (June 3, 1918). 45. Act of September 8, 1916 (39 Stat. 757, sec. 2(a) in part). Provision of the income-tax law of 1916, that a "stock dividend shall be considered income, to the amount of its cash value," _held_ invalid (in spite of the Sixteenth Amendment) as an attempt to tax something not actually income, without regard to apportionment under article I, section 2, clause 3. Eisner _v._ Macomber, 252 U.S. 189 (March 8, 1920). 46. Act of October 3, 1917 (40 Stat. 302, secs. 4, 303, secs. 201 and 333, sec. 1206 (amending 39 Stat. 765, sec. 10)); and Act of February 24, 1919 (40 Stat. 1075, secs. 230 and 1088, sec. 301). Income and excess-profits taxes on income of "every corporation," as applied to income of an oil corporation from leases of land granted by the United States to a State, for the support of common schools, etc., _held_ an interference with State governmental functions. (_See_ Tenth Amendment.) Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393 (April 11, 1932). 47. Same (40 Stat. 316, sec. 600 (f)). The tax "upon all tennis rackets, golf clubs, baseball bats * * * balls of all kinds, including baseballs * * * sold by the manufacturer, producer, or importer * * *" as applied to articles sold by a manufacturer to a commission merchant for exportation, _held_ a tax on exports within the prohibition of article I, section 9. Spalding & Bros. _v._ Edwards, 262 U.S. 66 (April 23, 1923). 48. Act of October 6, 1917 (40 Stat. 395, ch. 97, in part). The amendment of sections 24 and 256 of the Judicial Code (which prescribe the jurisdiction of district courts) "saving * * * to claimants the rights and remedies under the workmen's compensation law of any State," _held_ an attempt to transfer legislative power to the States--the Constitution, by article III, section 2, and article I, section 8, having adopted rules of general maritime law. Knickerbocker Ice Co. _v._ Stewart, 253 U.S. 149 (May 17, 1920). 49. Act of September 19, 1918 (40 Stat. 960, ch. 174). Specifically, that part of the Minimum Wage Law of the District of Columbia which authorized the Wage Board "to ascertain and declare * * * (a) Standards of minimum wages for women in any occupation within the District of Columbia, and what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals * * *," _held_ to interfere with freedom of contract under the Fifth Amendment. Adkins et al. _v._ Children's Hospital and Adkins et al. _v._ Lyons, 261 U.S. 525 (April 9, 1923)--overruled in West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (March 29, 1937). 50. Act of February 24, 1919 (40 Stat. 1065, ch. 18, sec. 213, in part). That part of section 213 of the Revenue Act of 1918 which provided that "* * * for the purposes of this title * * * the term 'gross income' * * * includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including in the case of * * * judges of the Supreme and inferior courts of the United States * * * the compensation received as such) * * *" as applied to a judge in office when the act was passed, _held_ a violation of the guaranty of judges' salaries, in article III, section 1. Evans _v._ Gore, 253 U.S. 245 (June 1, 1920). Miles _v._ Graham (268 U.S. 501, June 1, 1925), held it invalid as applied to a judge taking office subsequent to the date of the act. 51. Act of February 24, 1919 (40 Stat. 1097, sec. 402 (c)). That part of the estate tax providing that "gross estate" of a decedent should include value of all property "to the extent of any interest therein of which the decedent has at any time made a transfer or with respect to which he had at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this act), except in case of a _bona fide_ sale * * *" as applied to a transfer of property made prior to the act and intended to take effect "in possession or enjoyment" at death of grantor, but not in fact testamentary or designed to evade taxation, _held_ confiscatory, contrary to Fifth Amendment. Nichols, Collector _v._ Coolidge et al., Executors, 274 U.S. 531 (May 31, 1927). 52. Act of February 24, 1919, title XII (40 Stat. 1138, entire title). The Child Labor Tax Act, providing that "every person * * * operating * * * any * * * factory [etc.] * * * in which children under the age of 14 years have been employed or permitted to work * * * shall pay * * * in addition to all other taxes imposed by law, an excise tax equivalent to 10 percent of the entire net profits received * * * for such year from the sale * * * of the product of such * * * factory * * *," _held_ beyond the taxing power under article I, section 8, clause 1, and an infringement of State authority. Bailey _v._ Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (May 15, 1922). 53. Act of October 22, 1919 (41 Stat. 298, sec. 2), amending act of August 10, 1917 (40 Stat. 277, sec. 4). Section 4 of the Lever Act, providing in part "that it is hereby made unlawful for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries * * *" and fixing a penalty, _held_ invalid to support an indictment for charging an unreasonable price on sale--as not setting up an ascertainable standard of guilt within the requirement of the Sixth Amendment. United States _v._ Cohen Grocery Co., 255 U.S. 81 (February 28, 1921). 54. Same. That provision of section 4 making it unlawful "to conspire, combine, agree, or arrange with any other person to * * * exact excessive prices for any necessaries" and fixing a penalty, _held_ invalid to support an indictment, on the reasoning of the Cohen case. Weeds, Inc., _v._ United States, 255 U.S. 109 (February 28, 1921) 55. Act of August 24, 1921 (42 Stat. 187, ch. 86, Future Trading Act). (_a_) Section 4 (and interwoven regulations) providing a "tax of 20 cents a bushel on every bushel involved therein, upon each contract of sale of grain for future delivery, except * * * where such contracts are made by or through a member of a board of trade which has been designated by the Secretary of Agriculture as a 'contract market' * * *," _held_ not within the taxing power under article I, section 8. Hill _v._ Wallace, 259 U.S. 44 (May 15, 1922). (_b_) Section 3, providing "That in addition to the taxes now imposed by law there is hereby levied a tax amounting to 20 cents per bushel on each bushel involved therein, whether the actual commodity is intended to be delivered or only nominally referred to, upon each * * * option for a contract either of purchase or sale of grain * * *", _held_ invalid on the same reasoning. Trusler _v._ Crooks, 269 U.S. 475 (Jan. 11, 1926). 56. Act of November 23, 1921 (42 Stat. 261, sec. 245, part). Provision of Revenue Act of 1921 abating the deduction (4 percent of mean reserves) allowed from taxable income of life-insurance companies in general by the amount of interest on their tax-exempts, and so according no relative advantage to the owners of the tax-exempt securities, _held_ to destroy a guaranteed exemption. (_See_ Fifth Amendment.) National Life Insurance Co. _v._ United States, 277 U.S. 508 (June 4, 1928). 57. Act of June 10, 1922 (42 Stat. 634, ch. 216). A second attempt to amend sections 24 and 256 of the Judicial Code, relating to jurisdiction of district courts, by saving "to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel, their rights and remedies under the workmen's compensation law of any State * * *" _held_ invalid on authority of Knickerbocker Ice Co. _v._ Stewart. Industrial Accident Commission of California _v._ Rolph et al., and Washington _v._ Dawson & Co., 264 U.S. 219 (February 25, 1924). 58. Act of June 2, 1924 (43 Stat. 313). The gift tax provisions of the Revenue Act of 1924, _held_ invalid under the Fifth Amendment as applied to _bona fide_ gifts made before passage of the act. Untermeyer _v._ Anderson, 276 U.S. 440 (April 9, 1928). 59. Revenue Act of June 2, 1924 (43 Stat. 322, sec. 600, in part). Excise tax on certain articles "sold or leased by the manufacturer", measured by sale price [specifically, "(2) * * * motorcycles * * * 5 per centum"]--as applied to sale of motorcycle to a municipality for police use, _held_ an infringement of State immunity under the principle of Collector _v._ Day. Indian Motorcycle Co. _v._ United States, 283 U.S. 570 (May 25, 1931). 60. Act of February 26, 1926 (44 Stat. 9, ch. 27, in part). (_a_). Section 302 in part (44 Stat. 70). Second sentence, defining, for purposes of the estate tax, the term "made in contemplation of death" as including the value, over $5,000, of property transferred by a decedent, by trust, etc., without full consideration in money or money's worth, "within 2 years prior to his death but after the enactment of this act", although "not admitted or shown to have been made in contemplation of or intended to take effect in possession or enjoyment at or after his death", _held_ as applied to a transfer completed wholly between the living, spoliation without due process of law under the Fifth Amendment. Heiner _v._ Donnan, 285 U.S. 312 (March 21, 1932). (_b_). Section 701 in part (44 Stat. 95). Provision imposing a special excise tax of $1,000 on liquor dealers in States where such business is illegal, _held_ a penalty, without constitutional support following repeal of the Eighteenth Amendment. United States _v._ Constantine, 296 U.S. 287 (December 9, 1935). 61. Act of March 20, 1933 (48 Stat. 11, sec. 17, in part). Clause in the Economy Act of 1933 providing "* * * all laws granting or pertaining to yearly renewable term insurance are hereby repealed", _held_ invalid to abrogate an outstanding contract of insurance, which is a vested right protected by the Fifth Amendment. Lynch _v._ United States, 292 U.S. 571 (June 4, 1934). 62. Act of May 12, 1933 (48 Stat. 31). Agricultural Adjustment Act providing for processing taxes on agricultural commodities and benefit payments therefrom to farmers, _held_ not within the taxing power under article I, section 8, clause 1. United States _v._ Wm. M. Butler et al., Receivers of Hoosac Mills Corp., 297 U.S. 1 (January 6, 1936). 63. Joint Resolution of June 5, 1933 (48 Stat. 113, sec. 1). Abrogation of gold clause in Government obligations, _held_ a repudiation of the pledge implicit in the power to borrow money (art. I, sec. 8, clause 2), and within the prohibition of the Fourteenth Amendment, against questioning the validity of the public debt. [The majority of the Court, however, held plaintiff not entitled to recover under the circumstances.] Perry _v._ U.S., 294 U.S. 330 (February 18, 1935). 64. Act of June 16, 1933 (48 Stat. 195, ch. 90, the National Industrial Recovery Act). A. Title I, except section 9. Provisions relating to codes of fair competition, authorized to be approved by the President in his discretion "to effectuate the policy" of the act, _held_ invalid as a grant of legislative power (_see_ art. I, sec. 1) and not within the commerce power. Schechter Poultry Corp. _v._ United States, 295 U.S. 495 (May 27, 1935). B. Section 9 (c). Clause of the oil regulation section authorizing the President "to prohibit the transportation in interstate * * * commerce of petroleum * * * produced or withdrawn from storage in excess of the amount permitted * * * by any State law * * *" and prescribing a penalty for violation of orders issued thereunder, _held_ invalid as a grant of legislative power. Panama Refining Co. et al. _v._ Ryan et al. and Amazon Petroleum Corp., et al. _v._ Ryan et al., 293 U.S. 388 (January 7, 1935). 65. Act of June 16, 1933 (48 Stat. 307, sec. 13). Temporary reduction of 15 percent in retired pay of "judges (whose compensation, prior to retirement or resignation, could not, under the Constitution, have been diminished)", as applied to circuit or district judges retired from active service, but still subject to perform judicial duties under the act of March 1, 1929 (45 Stat. 1422), _held_ a violation of the guaranty of judges' salaries under article III, section 1. Booth _v._ United States (together with Amidon _v._ United States), 291 U.S. 339 (February 5, 1934). 66. Act of April 27, 1934 (48 Stat. 646, sec. 6), amending section 5 (i) of Home Owners' Loan Act of 1933. Provision for conversion of State building and loan associations into federal associations, upon vote of 51 percent of the votes cast at a meeting of stockholders called to consider such action, _held_ an encroachment on reserved powers of State. Hopkins Federal Savings & Loan Association _v._ Cleary, 296 U.S. 315 (December 9, 1935). 67. Act of May 24, 1934 (48 Stat. 798, ch. 345). Provision for readjustment of municipal indebtedness, _held_ invalid, though "adequately related" to the bankruptcy power, as an interference with State sovereignty. Ashton _v._ Cameron County Water Improvement District No. 1, 298 U.S. 513 (May 25, 1936). 68. Act of June 27, 1934 (48 Stat. 1283, ch. 868 entire). The Railroad Retirement Act, establishing a detailed compulsory retirement system for employees of carriers subject to the Interstate Commerce Act, _held_, not a regulation of commerce within the meaning of article I, section 8, clause 3. Railroad Retirement Board _v._ Alton R.R. et al., 295 U.S. 330 (May 6, 1935). 69. Act of June 28, 1934 (48 Stat. 1289, ch. 869). The Frazier-Lemke Act, adding subsection (s) to section 75 of the Bankruptcy Act, designed to preserve to mortgagors the ownership and enjoyment of their farm property and providing specifically, in paragraph 7, that a bankrupt left in possession has the option at any time within 5 years of buying at the appraised value--subject meanwhile to no monetary obligation other than payment of reasonable rental, _held_ a violation of property rights, under the Fifth Amendment. Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555 (May 27, 1935). 70. Act of August 24, 1935 (49 Stat. 750, ch. 641, title I). Agricultural Adjustment Act amendments, _held_ not within the taxing power. Rickert Rice Mills _v._ Fontenot, 297 U.S. 110 (January 13, 1936). 71. Act of August 30, 1935 (49 Stat. 991, ch. 824). Bituminous Coal Conservation Act of 1935, _held_ to impose not a tax within article I, section 8, but a penalty not sustained by the commerce clause. Carter _v._ Carter Coal Co., 298 U.S. 238 (May 18, 1936). 72. Act of June 30, 1938 (52 Stat. 1251, ch. 850, sec. 2 (f)). Federal Firearms Act, section 2 (f), establishing a presumption of guilt based on a prior conviction and present possession of a firearm, _held_ to violate the test of due process under the Fifth Amendment. Tot _v._ United States, 319 U.S. 463 (June 7, 1943). 73. Act of November 15, 1943 (57 Stat. 450, ch. 218, sec. 304). Urgent Deficiency Appropriation Act of 1943, section 304, providing that no salary should be paid to certain, named Federal employees out of moneys appropriated, _held_ to violate article I, section 9, clause 3, forbidding enactment of bill of attainder or _ex post facto_ law. United States _v._ Lovett, 328 U.S. 303 (June 3, 1946). TABLE OF CASES A Abby Dodge, The, 223 U.S. 166 (1912), 162 Abie State Bank _v._ Bryan, 282 U.S. 765 (1931), 983, 1020 Ableman _v._ Booth, 21 How. 506 (1859), 555, 625, 631, 696, 728 Abrams _v._ United States, 250 U.S. 616 (1919), 297, 774, 775, 794, 991 Adair _v._ Bank of America Assn., 303 U.S. 350 (1938), 263 Adair _v._ United States, 208 U.S. 161 (1908), 141, 846, 854 Adam _v._ Saenger, 303 U.S. 59 (1904), 570, 659, 1073, 1090 Adams _v._ Bellaire Stamping Co., 141 U.S. 539 (1891), 273 Adams _v._ Milwaukee, 228 U.S. 572 (1913), 1030, 1154 Adams _v._ New York, 192 U.S. 585 (1904), 831, 1166 Adams _v._ Storey, 1 Fed. Cas. No. 66 (1817), 262 Adams _v._ Tanner, 244 U.S. 590 (1917), 1023 Adams _v._ United States, 317 U.S. 269,(1942), 314, 885 Adams Express Co. _v._ Croninger, 226 U.S. 491 (1913), 247, 1015 Adams Express Co. _v._ Kentucky, 238 U.S. 190 (1915), 219 Adams Express Co. _v._ Ohio, 165 U.S. 194 (1897), 200, 201, 1050 Adams Express Co. _v._ Ohio, 166 U.S. 185 (1897), 201 Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938), 195, 204, 207 Adamson _v._ California, 332 U.S. 46 (1947), 752, 971, 1104, 1115, 1116, 1117, 1118, 1122, 1123, 1124 Addyston Pipe & Steel Co. _v._ United States, 175 U.S. 211 (1899), 146, 168, 219, 855 Adirondack R. Co. _v._ New York, 176 U.S. 335 (1900), 344 Adkins _v._ Children's Hospital, 261 U.S. 525 (1923), 303, 561, 563, 846, 854, 980, 988, 1159 Adler _v._ Board of Education, 342 U.S. 485 (1952), 801 Admiral Peoples, The, 295 U.S. 649 (1935), 575 Advance-Rumely Thresher Co. _v._ Jackson, 287 U.S. 283 (1932), 1019 Aero Mayflower Transit Co. _v._ Board of R.R. Commrs., 332 U.S. 495 (1947), 212 Aero Mayflower Transit Co. _v._ Georgia Pub. Serv. Commission, 295 U.S. 285 (1935), 212, 1151 Aetna Ins. Co. _v._ Hyde, 275 U.S. 440 (1928), 896 Aetna Ins. Co. _v._ Kennedy, 301 U.S. 389 (1937), 897 Aetna Life Ins. Co. _v._ Dunken, 266 U.S. 389 (1924), 679 Aetna Life Ins. Co. _v._ Haworth, 300 U.S. 227 (1937), 514, 551, 552, 553 Aetna Life Ins. Co. _v._ Tremblay, 223 U.S. 185 (1912), 685 Ager _v._ Murray, 105 U.S. 126 (1882), 275 Agnello _v._ United States, 269 U.S. 20 (1925), 825, 828 Ah Sin _v._ Wittman, 198 U.S. 500 (1905), 1031 Aikens _v._ Wisconsin, 195 U.S. 194 (1904), 1018 Akins _v._ Texas, 325 U.S. 398 (1945), 1168 Akron C. & Y.R. Co. _v._ United States, 261 U.S. 184 (1923), 861 Alabama _v._ Arizona, 291 U.S. 286 (1934), 594 Alabama _v._ King & Boozer, 314 U.S. 1 (1941), 731 Alabama Comm'n. _v._ Southern R. Co., 341 U.S. 341 (1951), 934 Alabama Power Co. _v._ Ickes, 302 U.S. 464 (1938), 115, 542, 701 Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450 (1945), 544, 550, 553, 561, 563 Alaska _v._ Troy, 258 U.S. 101 (1922), 323 Alaska Fish Salting & By-Products Co. _v._ Smith, 255 U.S. 44 (1921), 863 Alaska Packers Asso. _v._ Industrial Acci. Commission, 276 U.S. 467 (1928), 581 Alaska Packers Asso. _v._ Industrial Acci. Commission, 294 U.S. 532 (1935), 676, 990 Albrecht _v._ United States, 273 U.S. 1 (1927), 825, 840 Albrecht _v._ United States, 329 U.S. 599 (1947), 872 Algoma Plywood & Veneer Co. _v._ Wisconsin, 336 U.S. 301 (1949), 252 Allen _v._ Alleghany Co., 196 U.S. 458 (1905), 676 Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885), 931, 933 Allen _v._ Georgia, 166 U.S. 138 (1897), 1138, 1140 Allen _v._ McKean, 1 Fed. Cas. No. 229 (1833), 344 Allen _v._ Pullman's Palace Car Co., 191 U.S. 171 (1903), 196 Allen _v._ Regents of University System of Georgia, 304 U.S. 439 (1938), 107, 621 Allen _v._ Riley, 203 U.S. 347 (1906), 276 Allen _v._ Smith, 173 U.S. 389 (1899), 323 Allen Bradley Co. _v._ Union, 325 U.S. 797 (1945), 149 Allen-Bradley Local _v._ Employment Relations Board, 315 U.S. 740 (1942), 250 Allgeyer _v._ Louisiana, 165 U.S. 578 (1897), 1021, 1022 Alma Motor Co. _v._ Timken-Detroit Axle Co., 329 U.S. 129 (1946), 562 Almy _v._ California, 24 How. 169 (1861), 321, 364 Alpha Portland Cement Co. _v._ Massachusetts, 268 U.S. 203 (1925), 194, 202, 1050 Altman & Co. _v._ United States, 224 U.S. 583 (1912), 442 Alton R. Co. _v._ Illinois Comm'n., 305 U.S. 548 (1939), 1012 Altvater _v._ Freeman, 319 U.S. 359 (1943), 553 Alward _v._ Johnson, 282 U.S. 509 (1931), 731, 1151 American Communications Asso. _v._ Douds, 339 U.S. 382 (1950), 794 American Construction Co. _v._ Jacksonville T. & K.W.R. Co., 184 U.S. 372 (1893), 616 American Express Co. _v._ Caldwell, 244 U.S. 617 (1917), 136, 137, 219 American Express Co. _v._ Mullins, 212 U.S. 311 (1909), 654, 656, 674 American Federation of Labor _v._ American Sash Co., 335 U.S. 538 (1949), 680, 783, 991, 993 American Federation of Labor _v._ Swing, 312 U.S. 321 (1941), 782 American Fire Ins. Co. _v._ King Lumber Co., 250 U.S. 2 (1919), 680 American Ins. Co. _v._ Canter, 1 Pet. 511 (1828), 72, 73, 533, 704 American Land Co. _v._ Zeiss, 219 U.S. 47 (1911), 1080 American Manufacturing Co. _v._ St. Louis, 250 U.S. 459 (1919), 181, 1051 American Medical Assn. _v._ United States, 317 U.S. 519 (1943), 121 American Mills Co. _v._ American Surety Co., 260 U.S. 360 (1922), 895 American Power & Light Co. _v._ Securities & Exchange Commission, 329 U.S. 90 (1946), 75, 151, 564 American Publishing Co. _v._ Fisher, 166 U.S. 464 (1897), 892 American School of Magnetic Healing _v._ McAnnulty, 187 U.S. 94 (1902), 860 American Seeding Machine Co. _v._ Kentucky, 236 U.S. 660 (1915), 1017 American Steel & Wire Co. _v._ Speed, 192 U.S. 500 (1904), 185 American Sugar Refining Co. _v._ Louisiana, 179 U.S. 89 (1900), 1149 American Surety Co. _v._ Baldwin, 287 U.S. 156 (1932), 684, 1088, 1089 American Telephone & Telegraph Co. _v._ United States, 299 U.S. 232 (1936), 860 American Tobacco Co. _v._ United States, 328 U.S. 781 (1946), 840 American Tobacco Co. _v._ Werckmeister, 207 U.S. 284 (1907), 831 American Toll Bridge Co. _v._ Railroad Com. of California et al., 307 U.S. 486 (1939), 349 Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449 (1884), 571, 613 Amos _v._ United States, 255 U.S. 313 (1921), 824 Anderson _v._ Dunn, 6 Wheat. 204 (1821), 85, 86 Anderson _v._ Santa Anna, 116 U.S. 356 (1886), 331 Anderson Nat. Bank _v._ Luckett, 321 U.S. 233 (1944), 1020, 1071, 1083, 1087 Andres _v._ United States, 333 U.S. 740 (1948), 879, 892 Andrews _v._ Andrews, 188 U.S. 14 (1903), 352, 429, 662, 665 Andrews _v._ Swartz, 156 U.S. 272 (1895), 1138 Andrews _v._ Wall, 3 How. 568 (1845), 574 Angel _v._ Bullington, 330 U.S. 183 (1947), 1089 Angle _v._ Chicago, St. P.M. & O.R. Co., 151 U.S. 1 (1894), 1035 Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373 (1903), 657, 674 Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218 (1933), 195, 364 Anniston Mfg. Co. _v._ Davis, 301 U.S. 337 (1937), 858 Antelope, The, 10 Wheat. 66 (1825), 675 Anti-Fascist Committee _v._ McGrath, 341 U.S. 123 (1951), 801 Antoni _v._ Greenhow, 107 U.S. 769 (1883), 355 Appalachian Coals, Inc. _v._ United States, 288 U.S. 344 (1933), 152 Appleby _v._ Buffalo, 221 U.S. 524 (1911), 1066 Appleby _v._ Delaney, 271 U.S. 403 (1926), 329 Appleyard _v._ Massachusetts, 203 U.S. 222 (1906), 695 Arizona _v._ California, 283 U.S. 423 (1931), 131, 544, 564, 724 Arizona _v._ California, 292 U.S. 341 (1934), 369 Arizona Cooper Co. _v._ Hammer (Arizona Employers' Liability Cases), 250 U.S. 400 (1919), 989 Arkadelphia Milling Co. _v._ St. Louis S.W.R. Co., 249 U.S. 134 (1919), 526 Arkansas _v._ Kansas & T.C. Co. & S.F.R., 183 U.S. 185 (1901), 567 Arkansas Land & Cattle Co. _v._ Mann, 130 U.S. 69 (1889), 896 Arkansas Louisiana Gas Co. _v._ Dept. of Public Utilities, 304 U.S. 61 (1938), 234 Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929), 305 Armour & Co. _v._ North Dakota, 240 U.S. 510 (1916), 248, 1019, 1154 Armour & Co. _v._ Virginia, 246 U.S. 1 (1918), 1148 Armour & Co. _v._ Wantock, 323 U.S. 126 (1944), 157 Armour Packing Co. _v._ Lacy, 200 U.S. 226 (1906), 185 Armour Packing Co. _v._ United States, 209 U.S. 56 (1908), 137, 881 Armstrong _v._ United States, 13 Wall. 154 (1872), 407 Armstrong's Foundry _v._ United States, 6 Wall. 766 (1868), 645 Arndstein _v._ McCarthy, 254 U.S. 71 (1920), 843 Arndt _v._ Griggs, 134 U.S. 316 (1890), 1072, 1080 Arrowsmith _v._ Gleason, 129 U.S. 86 (1889), 629 Arver _v._ United States (Selective Draft Law Cases), 245 U.S. 366 (1918), 768, 953, 965 Asbell _v._ Kansas, 209 U.S. 251 (1908), 248 Asbury Hospital _v._ Cass County, 326 U.S. 207 (1945), 362, 1016 Ashcraft _v._ Tennessee, 322 U.S. 143 (1944), 1113, 1121 Ashcraft _v._ Tennessee, 327 U.S. 274 (1946), 1114 Ashe _v._ United States ex rel. Valotta, 270 U.S. 424 (1926), 1110 Asher _v._ Texas, 128 U.S. 129 (1888), 187 Ashton _v._ Cameron County Water Improvement Dist, 298 U.S. 513 (1936), 262, 264, 936 Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936), 132, 291, 440, 541, 544, 552, 562, 701, 909 Askren _v._ Continental Oil Co., 252 U.S. 444 (1920), 184, 239 Assaria State Bank _v._ Dolley, 219 U.S. 121 (1911), 1020 Associated Press _v._ National Labor Relations Board, 301 U.S. 103 (1937), 121, 793 Associated Press _v._ United States, 326 U.S. 1 (1945), 793 Atchison, T. & S.F.R. Co. _v._ Harold, 241 U.S. 371 (1916), 247 Atchison, T. & S.F.R. Co. _v._ Matthews, 174 U.S. 96 (1899), 1167 Atchison, T. & S.F.R. Co. _v._ O'Connor, 223 U.S. 280 (1912), 196, 931, 935 Atchison, T & S.F.R. Co. _v._ Railroad Commission, 283 U.S. 380 (1931), 223, 1012 Atchison, T. & S.F.R. Co. _v._ Sowers, 213 U.S. 55 (1909), 677, 685 Atchison, T. & S.F.R. Co. _v._ Vosburg, 238 U.S. 56 (1915), 1167 Atherton _v._ Atherton, 181 U.S. 155 (1901), 663 Atkin _v._ Kansas, 191 U.S. 207 (1903), 987, 1158 Atkins _v._ Moore, 212 U.S. 285 (1909), 537 Atkinson _v._ State Tax Commission, 303 U.S. 20 (1938), 307, 731 Atlantic & P. Teleg. Co. _v._ Philadelphia, 190 U.S. 160 (1903), 214 Atlantic Cleaners & Dyers, Inc. _v._ United States, 286 U.S. 427 (1932), 122, 303 Atlantic Coast Line R. Co. _v._ Daughton, 262 U.S. 413 (1923), 209 Atlantic Coast Line R. Co. _v._ Ford, 287 U.S. 502 (1933), 1095, 1156 Atlantic Coast Line R. Co. _v._ Georgia, 234 U.S. 280 (1914), 1014, 1156 Atlantic Coast Line R. Co. _v._ Glenn, 239 U.S. 388 (1915), 1015 Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548 (1914), 329, 352, 983, 1010, 1014 Atlantic Coast Line R. Co. _v._ North Carolina Corp. Commission, 206 U.S. 1 (1907), 1009 Atlantic Coast Line R. Co. _v._ Phillips, 332 U.S. 168 (1947), 330 Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936), 198, 202 Atlantic Refining Co. _v._ Virginia, 302 U.S. 22 (1937), 198, 1051 Atlantic Works _v._ Brady, 107 U.S. 192 (1882), 272 Atlee _v._ Northwestern Union P. Co., 21 Wall. 389 (1875), 574 Attorney General ex rel. Kies _v._ Lowrey, 199 U.S. 233 (1905), 340, 1036 Audubon _v._ Shufeldt, 181 U.S. 575 (1901), 671 Auffmordt _v._ Hedden, 137 U.S. 310 (1890), 452, 893 Austin _v._ Tennessee, 179 U.S. 343 (1900), 240 Austin _v._ United States, 155 U.S. 417 (1894), 324 Automobile Workers _v._ O'Brien, 339 U.S. 454 (1950), 252 Auto Workers _v._ Wis. Board, 336 U.S. 245 (1919), 252, 724, 783, 810, 953, 993 Avent _v._ United States, 266 U.S. 127 (1924), 76 Avery _v._ Alabama, 308 U.S. 444 (1940), 1099, 1101 Ayer & L. Tie Co. _v._ Kentucky, 202 U.S. 409 (1906), 210 Ayers, Ex parte, 123 U.S. 443 (1887), 351, 930, 933, 934 B Bacardi Corp. _v._ Domenech, 311 U.S. 150 (1940), 418 Baccus _v._ Louisiana, 232 U.S. 334 (1914), 1156 Bachtel _v._ Wilson, 204 U.S. 36 (1907), 1145 Backus _v._ Lebanon, 11 N.H. 19 (1840), 350 Backus (A.) Jr. & Sons _v._ Port Street Union Depot Co., 169 U.S. 577 (1898), 1066 Bacon _v._ Howard, 20 How. 22 (1858), 654 Bacon _v._ Illinois, 227 U.S. 504 (1913), 185 Bacon _v._ Texas, 163 U.S. 207 (1896), 330 Bacon _v._ Walker, 204 U.S. 311 (1907), 982, 1028, 1154 Bacon & Sons _v._ Martin, 305 U.S. 380 (1939), 190 Badders _v._ United States, 240 U.S. 391 (1916), 905 Baender _v._ Barnett, 255 U.S. 224 (1921), 266 Bagnell _v._ Broderick, 13 Pet. 436 (1839), 702 Bailey _v._ Alabama, 219 U.S. 219 (1911), 950, 951, 1094, 1095 Bailey _v._ Anderson, 326 U.S. 203 (1945), 1070 Bailey _v._ Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922), 111, 564, 918 Bain, Ex parte, 121 U.S. 1 (1837), 838 Bain Peanut Co. _v._ Pinson, 282 U.S. 499 (1931), 1167 Baiz, In re, 135 U.S. 403 (1890), 473, 572 Baizley Iron Works _v._ Span, 281 U.S. 222 (1930), 581, 582 Bakelite Corporation, Ex parte, 279 U.S. 438 (1929), 311, 534, 536 Baker _v._ Baker, E. & Co., 242 U.S. 394 (1917), 1088 Baker _v._ Grice, 169 U.S. 284 (1898), 634 Baker _v._ Morton, 12 Wall. 150 (1871), 699 Baker _v._ Selden, 101 U.S. 99 (1880), 275 Bakery & Pastry Drivers _v._ Wohl, 315 U.S. 769 (1942), 782 Baldwin _v._ Franks, 120 U.S. 678 (1887), 427, 688, 1176 Baldwin _v._ Iowa State Traveling Men's Assoc., 283 U.S. 522 (1931), 684, 1140 Baldwin _v._ Missouri, 281 U.S. 586 (1930), 1046, 1114 Baldwin _v._ Seelig, (G.A.F.), 294 U.S. 511 (1935), 241, 242, 244 Ballard _v._ Hunter, 204 U.S. 241 (1907), 1071, 1080, 1092, 1141 Baltic Min. Co. _v._ Massachusetts, 231 U.S. 68 (1913), 197, 1150 Baltimore & C. Line _v._ Redman, 295 U.S. 654 (1935), 891, 892, 897 Baltimore Nat. Bank _v._ State Tax Comm'n., 297 U.S. 209 (1936), 734 Baltimore & O.R. Co. _v._ Baugh, 149 U.S. 368 (1893), 604 Baltimore & O.R. Co. _v._ Hostetter, 240 U.S. 620 (1916), 674 Baltimore & O.R. Co. _v._ Interstate Commerce Comm., 221 U.S. 612 (1911), 140, 827, 855 Baltimore & S.R. Co. _v._ Nesbit, 10 How. 395 (1850), 327 Baltimore Shipbuilding & Dry Dock Co. _v._ Baltimore, 195 U.S. 375 (1904), 732 Balzac _v._ Porto Rico, 258 U.S. 298 (1922), 703, 877 Bandini Petroleum Co. _v._ Superior Court, 284 U.S. 8 (1931), 1026, 1096 Banholzer _v._ New York L. Ins. Co., 178 U.S. 402 (1900), 676 Bank of Alabama _v._ Dalton, 9 How. 522 (1850), 654 Bank of Augusta _v._ Earle, 13 Pet. 519 (1839), 198, 675, 688 Bank of Kentucky _v._ Wister, 2 Pet. 318 (1829), 930 Bank of Minden _v._ Clement, 256 U.S. 126 (1921), 356 Bank of United States _v._ Deveaux, 5 Cr. 61 (1809), 568, 601, 618 Bank of United States _v._ Halstead, 10 Wheat. 51 (1825), 311 Bank of the United States _v._ Planters' Bank of Ga., 9 Wheat. 904 (1824), 930 Banker Bros. Co. _v._ Pennsylvania, 222 U.S. 210 (1911), 188 Bankers Pocahontas Coal Co. _v._ Burnet, 287 U.S. 308 (1932), 1200 Bankers Trust Co. _v._ Blodgett, 260 U.S. 647 (1923), 316, 1061 Barber _v._ Barber, 21 How. 582 (1859), 671 Barber _v._ Barber, 323 U.S. 77 (1944), 671 Barbier _v._ Connolly, 113 U.S. 27 (1885), 1029, 1145 Barbour _v._ Georgia, 249 U.S. 454 (1919), 1032 Barnes _v._ Barnes, 8 Jones L. 53 (N.C.) 366 (1861), 336 Barnett _v._ Bowles, 151 F. (2d) 77 (1945), 1234 Barnett _v._ Bowles, 326 U.S. 766 (1945), 1234 Barney _v._ Baltimore, 6 Wall. 280 (1868), 302 Barney _v._ City of New York, 193 U.S. 430 (1904), 1177 Barnitz _v._ Beverly, 163 U.S. 118 (1896), 360 Barrett _v._ Indiana, 299 U.S. 26 (1913), 987, 1145 Barrett _v._ New York, 232 U.S. 14 (1914), 247 Barron _v._ Baltimore, 7 Pet. 243 (1833), 751, 1062 Barron _v._ Burnside, 121 U.S. 186 (1887), 638 Barrow S.S. Co. _v._ Kane, 170 U.S. 100 (1898), 638 Barry, Ex parte, 2 How. 65 (1844), 612 Barry _v._ Mercein, 5 How. 103 (1847), 616 Barry _v._ United States ex rel. Cunningham, 279 U.S. 597 (1929), 85, 96 Barsky _v._ United States, 334 U.S. 843 (1948), 100 Barsky _v._ United States, 167 F. (2d) 241 (1948), 100 Bartell _v._ United States, 227 U.S. 427 (1913), 884 Bartemeyer _v._ Iowa, 18 Wall. 129 (1874), 971 Barton _v._ Barbour, 104 U.S. 126 (1881), 893 Barwise _v._ Sheppard, 299 U.S. 33 (1936), 1039 Bas _v._ Tingy, 4 Dall. 37 (1800), 282, 423 Bass, Ratcliff & Gretton _v._ State Tax Commission, 266 U.S. 271 (1924), 203, 209, 1054 Bassing _v._ Cady, 208 U.S. 386 (1908), 695, 839 Bates _v._ Bodie, 245 U.S. 520 (1918), 671 Battle _v._ United States, 209 U.S. 36 (1908), 305 Bauman _v._ Ross, 167 U.S. 548 (1897), 872, 1059 Baumgartner _v._ United States, 322 U.S. 665 (1944), 257, 870 Baylis _v._ Travelers' Ins. Co., 113 U.S. 316 (1885), 897 Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936), 217, 237, 246, 1027, 1154 Beal _v._ Missouri Pacific R. Co., 312 U.S. 45 (1941), 631 Beall _v._ New Mexico ex rel. Griffin, 16 Wall. 535 (1873), 848 Beauharnais _v._ Illinois, 343 U.S. 250 (1952), 752, 802 Beavers _v._ Haubert, 198 U.S. 77 (1905), 881 Beavers _v._ Henkel, 194 U.S. 73 (1904), 881 Beazell _v._ Ohio, 269 U.S. 167 (1925), 329 Becker Steel Co. _v._ Cummings, 296 U.S. 74 (1935), 865 Bedford _v._ United States, 192 U.S. 217 (1904), 128 Bedford Co. _v._ Stone Cutters Assn., 274 U.S. 37 (1927), 149 Beidler _v._ South Carolina Tax Commission, 282 U.S. 1 (1930), 1047 Bekins Van Lines _v._ Riley, 280 U.S. 80 (1929), 1151 "Belfast," The, _v._ Boon, 7 Wall. 624 (1869), 575 Belknap _v._ Schild, 161 U.S. 10 (1896), 275, 590 Bell _v._ Bell, 181 U.S. 175 (1901), 665 Bell _v._ Hood, 327 U.S. 678 (1946), 501, 567 Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232 (1890), 1057, 1146, 1159 Bell Tele. Co. _v._ Pennsylvania Public Util. Com., 309 U.S. 30 (1940), 232 Benner _v._ Porter, 9 How. 235 (1850), 699 Bennett _v._ Butterworth, 11 How. 669 (1850), 895 Benson _v._ United States, 146 U.S. 325 (1892), 306 Berea College _v._ Kentucky, 211 U.S. 45 (1908), 344, 562, 965 Bergemann _v._ Backer, 157 U.S. 655 (1895), 1141 Berizzi Bros. Co. _v._ S.S. Pesaro, 271 U.S. 562 (1926), 609 Bernheimer _v._ Converse, 206 U.S. 516 (1907), 355 Bessette _v._ W.B. Conkey Co., 194 U.S. 324 (1904), 521 Best & Co. _v._ Maxwell, 311 U.S. 454 (1940), 189 Bethlehem Motors Corp. _v._ Flynt, 256 U.S. 421 (1921), 185 Bethlehem Steel Co. _v._ New York Labor Relations Bd., 330 U.S. 767 (1947), 136 Betts _v._ Brady, 316 U.S. 455 (1942), 1099, 1104, 1105, 1108 Biddinger _v._ Police Comr., 245 U.S. 128 (1917), 695 Biddle _v._ Perovich, 274 U.S. 480 (1927), 407, 842 Bier _v._ McGehee, 148 U.S. 137 (1893), 329 Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912), 654, 658, 660 Billings _v._ Illinois, 188 U.S. 97 (1903), 1151 Billings _v._ United States, 232 U.S. 261 (1914), 320, 863 Bilokumsky _v._ Tod, 263 U.S. 149 (1923), 824 Bi-Metallic Co. _v._ Colorado, 239 U.S. 441 (1915), 1059, 1084 Binderup _v._ Pathe Exchange, 263 U.S. 291 (1923), 567 Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936), 186, 195 Binghamton Bridge, The, 3 Wall. 51 (1865), 347 Binney _v._ Long, 299 U.S. 280 (1936), 1039 Binns _v._ United States, 194 U.S. 486 (1904), 109, 703 Bishop _v._ United States, 197 U.S. 334 (1905), 476 Black & White Taxicab & T. Co. _v._ Brown & Yellow Taxicab & T. Co., 276 U.S. 518 (1928), 603 Blackmer _v._ United States, 284 U.S. 421 (1932), 540, 847 Blackstone _v._ Miller, 188 U.S. 189 (1903), 1046, 1047 Blair _v._ Chicago, 201 U.S. 400 (1906), 347 Blake _v._ McClung, 172 U.S. 239 (1898), 687, 690, 691, 1144 Blake _v._ United States, 103 U.S. 227 (1881), 460 Blau _v._ United States, 340 U.S. 159 (1950), 843 Blau _v._ United States, 340 U.S. 332 (1951), 843 Bleistein _v._ Donaldson Lithographing Co., 188 U.S. 239 (1903), 276 Blinn _v._ Nelson, 222 U.S. 1 (1911), 1093 Block _v._ Hirsh, 256 U.S. 135 (1921), 293, 296 Blodgett _v._ Holden, 275 U.S. 142 (1927), 863 Blodgett _v._ Silberman, 277 U.S. 1 (1928), 673, 730, 1042, 1045 Bloomer _v._ McQuewan, 14 How. 539 (1852), 271, 275 Bloomer _v._ Millinger, 1 Wall. 340 (1864), 271 Bluefield Waterworks & Improv. Co. _v._ Pub. Serv. Comm., 262 U.S. 679 (1923), 1006 Blumenstock Bros. _v._ Curtis Pub. Co., 252 U.S. 436 (1920), 120 Board of Assessors _v._ New York L. Ins. Co., 216 U.S. 517 (1910), 1056 Board of Comms. _v._ Seber, 318 U.S. 705 (1943), 735 Board of Councilmen of Frankfort _v._ State National Bank, 184 U.S. 696 (1902), 567 Board of Education _v._ Barnette, 319 U.S. 624 (1943), 563, 767, 786, 787 Board of Education _v._ Illinois, 203 U.S. 553 (1906), 1051 Board of Liquidation _v._ McComb, 92 U.S. 531 (1876), 931, 932, 933 Board of Public Works _v._ Columbia College, 17 Wall. 521 (1873), 656, 658 Bob-Lo Excursion Co. _v._ Michigan, 333 U.S. 28 (1948), 230, 1162 Bollman, Ex parte, 4 Cr. 75 (1807), 313, 314, 315, 512, 523, 612, 618, 639, 643, 645 Bonaparte _v._ Camden & A.R. Co., 3 Fed. Cas. No. 1,617 (1830), 350 Bonaparte _v._ Tax Court, 104 U.S. 592 (1882), 675 Bond _v._ Hume, 243 U.S. 15 (1917), 675, 681 Boom Co. _v._ Patterson, 98 U.S. 403 (1879), 870 Booth _v._ Illinois, 184 U.S. 425 (1902), 1019 Booth _v._ Indiana, 237 U.S. 391 (1915), 987 Booth Fisheries Co. _v._ Industrial Commission, 271 U.S. 208 (1926), 990 Borden Company _v._ Borella, 325 U.S. 679 (1945), 157 Borden's Farm Products Co. _v._ Ten Eyck, 297 U.S. 251 (1936), 1154 Borer _v._ Chapman, 119 U.S. 587 (1887), 672 Börs _v._ Preston, 111 U.S. 252 (1884), 571 Boske _v._ Comingore, 177 U.S. 459 (1900), 633 Bosley _v._ McLaughlin, 236 U.S. 385 (1915), 986, 1159 Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878), 346, 358, 1032 Boston & Montana Consolidated Copper & Silver Mining Co. _v._ Montana Ore Purchasing Co., 188 U.S. 632 (1903), 567 Boswell _v._ Otis, 9 How. 336 (1850), 1081 Bothwell _v._ Buckbee-Mears Co., 275 U.S. 274 (1927), 120 Botiller _v._ Dominguez, 130 U.S. 238 (1889), 421, 493 Bourjois, Inc. _v._ Chapman, 301 U.S. 183 (1937), 237, 1024 Boutell _v._ Walling, 327 U.S. 463 (1946), 158 Bowen _v._ Johnston, 306 U.S. 19 (1939), 305 Bowers _v._ Kerbaugh-Empire Co., 271 U.S. 170 (1926), 1192, 1199 Bowersock _v._ Smith, 243 U.S. 29 (1917), 1091 Bowles _v._ Willingham, 321 U.S. 503 (1944), 76, 296, 849, 855, 859 Bowman _v._ Chicago, & N.W.R. Co., 125 U.S. 465 (1888), 218, 238, 268, 365 Bowman _v._ Continental Oil Co., 256 U.S. 642 (1921), 184, 239 Bowman _v._ Lewis, 101 U.S. 22 (1880), 1166 Boyce's Executors _v._ Grundy, 3 Pet. 210 (1830), 524 Boyd _v._ Nebraska ex rel. Thayer, 143 U.S. 135 (1892), 255, 699 Boyd _v._ United States, 116 U.S. 616 (1886), 824, 825, 842 Boyd _v._ United States, 142 U.S. 450 (1892), 410 Boyer, Ex parte, 109 U.S. 629 (1884), 577 Boynton _v._ Hutchinson Gas Co., 291 U.S. 656 (1934), 982 Bozza _v._ United States, 330 U.S. 160 (1947), 839 Brader _v._ James, 246 U.S. 88 (1918), 864 Bradfield _v._ Roberts, 175 U.S. 291 (1899), 764 Bradford Electric Light Co. _v._ Clapper, 286 U.S. 145 (1932), 676, 681 Bradley _v._ Lightcap, 195 U.S. 1 (1904), 356 Bradley _v._ Public Utilities Commission, 289 U.S. 92 (1933), 226, 1032, 1155 Bradwell _v._ Illinois, 16 Wall. 130 (1873), 687, 971 Brady _v._ Roosevelt S.S. Co., 317 U.S. 575 (1943), 587 Bragg _v._ Weaver, 251 U.S. 57 (1919), 1064, 1069, 1084 Branch _v._ Haas, 16 F. 53 (1883), 1174 Brannan _v._ Stark, 342 U.S. 451 (1952), 78 Bransford, Ex parte, 310 U.S. 354 (1940), 631 Branson _v._ Bush, 251 U.S. 182 (1919), 1153 Brass _v._ North Dakota ex rel. Stoeser, 153 U.S. 391 (1894), 996 Bratton _v._ Chandler, 260 U.S. 110 (1922), 1085, 1086 Braxton County Court _v._ West Virginia, 208 U.S. 192 (1908), 540, 982 Brazee _v._ Michigan, 241 U.S. 340 (1916), 1023 Breard _v._ Alexandria, 341 U.S. 622 (1951), 786, 1156 Breedlove _v._ Suttles, 302 U.S. 277 (1937), 87, 971, 1152, 1220 Breese _v._ United States, 226 U.S. 1 (1912), 838 Breiholz _v._ Pocahontas County, 257 U.S. 118 (1921), 1059 Brennan _v._ Titusville, 153 U.S. 289 (1894), 187, 218 Brewing Co. _v._ Liquor Comm'n., 305 U.S. 391 (1939), 241 Bridge Proprietors _v._ Hoboken Co., 1 Wall. 116 (1863), 330 Bridges _v._ California, 314 U.S. 252 (1941), 517, 563, 783, 788, 800, 809 Brig Ann, The, 9 Cr. 289 (1815), 575 Brigantine William, The, 28 Fed. Cas. 16,700 (1808), 167 Brig Aurora, The, 7 Cr. 382 (1813), 74, 79 Briggs _v._ Elliott, 342 U.S. 350 (1952), 1163 Brillhart _v._ Excess Insurance Co., 316 U.S. 491 (1942), 553, 627 Brimmer _v._ Rebman, 138 U.S. 78 (1891), 183, 214, 238 Brinegar _v._ United States, 338 U.S. 160 (1949), 791, 830 Brinkerhoff-Faris Trust & Sav. Co. _v._ Hill, 281 U.S. 673 (1930), 1060 Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837), 326, 930 Briscoe _v._ Rudolph, 221 U.S. 547 (1911), 304 Bristol _v._ Washington County, 177 U.S. 133 (1900), 1044 Broad River Power Co. _v._ South Carolina ex rel. Daniel, 281 U.S. 537 (1930), 1011 Broderick _v._ Rosner, 294 U.S. 629 (1935), 657, 678 Brodnax _v._ Missouri, 219 U.S. 285 (1911), 189, 1019 Brolan _v._ United States, 236 U.S. 216 (1915), 124, 163 Bromley _v._ McCaughn, 280 U.S. 124 (1929), 321, 863 Bronson _v._ Kinzie, 1 How. 311 (1843), 354 Brooke _v._ Norfolk, 277 U.S. 27 (1928), 1044 Brooks _v._ United States, 267 U.S. 432 (1925), 171, 919 Brooks _v._ United States, 147 F. (2d) 134 (1945), 953 Brooks _v._ United States, 324 U.S. 878 (1945), 953 Brooks-Scanlon Co. _v._ Railroad Commission, 251 U.S. 396 (1920), 1011 Brown _v._ Baskin, 78 F. Supp. 933 (1948), 1185 Brown _v._ Duchesne, 19 How. 183 (1857), 271 Brown _v._ Elliott, 225 U.S. 392 (1912), 881 Brown _v._ Fletcher, 210 U.S. 82 (1908), 658, 659, 662, 672 Brown _v._ Grant, 116 U.S. 207 (1886), 700 Brown _v._ Houston, 114 U.S. 622 (1885), 169, 183, 218 Brown _v._ Maryland, 12 Wheat. 419 (1827), 107, 175, 177, 178, 182, 183, 198, 215, 218, 238, 363, 364 Brown _v._ Mississippi, 297 U.S. 278 (1936), 1112, 1119, 1138, 1139 Brown _v._ New Jersey, 175 U.S. 172 (1899), 1071, 1098, 1110 Brown _v._ Penobscot Bank, 8 Mass. 445 (1812), 357 Brown _v._ Piper, 91 U.S. 37 (1875), 273 Brown _v._ Smart, 145 U.S. 454 (1892), 265 Brown _v._ United States, 8 Cr. 110 (1814), 865 Brown _v._ United States, 263 U.S. 78 (1923), 294, 866 Brown _v._ Walker, 161 U.S. 591 (1896), 407, 411, 842, 843 Brown _v._ Western Ry. Co. of Alabama, 338 U.S. 294 (1949), 637 Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170 (1921), 359, 953 Browne _v._ Strode, 5 Cr. 303 (1809), 611 Browning _v._ Hooper, 269 U.S. 396 (1926), 1059 Browning _v._ Waycross, 233 U.S. 16 (1914), 121, 188 Bruno _v._ U.S., 308 U.S. 287 (1939), 843 Brushaber _v._ Union Pacific R. Co., 240 U.S. 1 (1916), 105, 110, 541, 862, 863, 1192, 1200 Bryant, In re, 4 Fed. Cas. No. 2067 (1865), 122 Buchalter _v._ New York, 319 U.S. 427 (1943), 1132 Buchanan _v._ Warley, 245 U.S. 60 (1917), 1029, 1161 Buck _v._ Beach, 206 U.S. 392 (1907), 1044 Buck _v._ Bell, 274 U.S. 200 (1927), 984, 1153, 1156, 1161 Buck _v._ California, 342 U.S. 99 (1952), 227 Buck _v._ Colbath, 3 Wall. 334 (1866), 526, 627 Buck _v._ Kuykendall, 267 U.S. 307 (1925), 228 Buckstaff Bath House _v._ McKinley, 308 U.S. 358 (1939), 731 Budd _v._ New York, 143 U.S. 517 (1892), 975, 996, 999 Bugajewitz _v._ Adams, 228 U.S. 585 (1913), 259, 317 Building Service Employees Union _v._ Gazzam, 339 U.S. 532 (1950), 782 Bullen _v._ Wisconsin, 240 U.S. 625 (1916), 1045 Bunting _v._ Oregon, 243 U.S. 426 (1917), 979, 987, 1158 Burbank _v._ Ernst, 232 U.S. 162 (1914), 672 Burdeau _v._ McDowell, 256 U.S. 465 (1921), 823, 831 Burdick _v._ United States, 236 U.S. 79 (1915), 407, 842 Burford, Ex parte, 3 Cr. 448 (1806), 825 Burgess _v._ Salmon, 97 U.S. 381 (1878), 103, 316 Burgess _v._ Seligman, 107 U.S. 20 (1883), 332, 606 Burk-Waggoner Oil Asso. _v._ Hopkins, 269 U.S. 110 (1925), 1197 Burnes Nat. Bank _v._ Duncan, 265 U.S. 17 (1924), 309 Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393 (1932), 108, 566 Burnet _v._ Harmel, 287 U.S. 103 (1932), 1200 Burnet _v._ Sanford & B. Co., 282 U.S. 359 (1931), 1201 Burns Baking Co. _v._ Bryan, 264 U.S. 504 (1924), 1019 Burroughs _v._ United States, 290 U.S. 534 (1934), 386 Burrow-Giles Lithographic Co. _v._ Sarony, 111 U.S. 53 (1884), 276 Burstyn (Joseph), Inc. _v._ Wilson, 343 U.S. 495 (1952), 788 Burton _v._ United States, 202 U.S. 344 (1906), 88, 98, 840, 881, 884 Bus Employees _v._ Wisconsin Board, 340 U.S. 383 (1951), 173, 252, 724 Bush & Sons Co. _v._ Maloy, 267 U.S. 317 (1925), 228 Butchers' Union Co. _v._ Crescent City Co., 111 U.S. 746 (1884), 351 Bute _v._ Illinois, 333 U.S. 640 (1948), 1105, 1108 Butler _v._ Boston & Savannah S.S. 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Co. _v._ Eggen, 252 U.S. 553 (1920), 692 Canizio _v._ New York, 327 U.S. 82 (1946), 1102 Cannon _v._ New Orleans, 20 Wall. 577 (1874), 366 Canton R. Co. _v._ Rogan, 340 U.S. 511 (1951), 363 Cantwell _v._ Connecticut, 310 U.S. 296 (1940), 757, 765, 766, 777, 788 Capital City Dairy Co. _v._ Ohio ex rel. 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Co. _v._ Gallatin (Sinking-Fund Cases), 99 U.S. 700 (1879), 362, 563, 981 Central Union Trust Co. _v._ Garvan, 254 U.S. 554 (1921), 295 Chae Chan Ping _v._ United States, 130 U.S. 581 (1889), 421 Chaffin _v._ Taylor, 116 U.S. 567 (1886), 326 Chalker _v._ Birmingham & M.W.R. Co., 249 U.S. 522 (1919), 693 Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142 (1907), 687, 692 Chambers _v._ Florida, 309 U.S. 227 (1940), 1112, 1113, 1121 Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903), 124, 168, 169, 919 Champlain Realty Co. _v._ Brattleboro, 260 U.S. 366 (1922), 186 Champlin Ref. Co. _v._ Corporation Commission, 286 U.S. 210 (1932), 1025 Champlin Refining Co. _v._ United States, 329 U.S. 29 (1946), 860 Chandler _v._ Dix, 194 U.S. 590 (1904), 931, 936 Chandler _v._ Wise, 307 U.S. 474 (1939), 715 Chanler _v._ Kelsey, 205 U.S. 466 (1907), 1038 Chaplinsky _v._ New Hampshire, 315 U.S. 568 (1942), 786, 788, 791 Chapman _v._ Brewer, 114 U.S. 158 (1885), 895 Chapman _v._ King, 154 F. 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Co., 247 U.S. 372 (1918), 579 Chemung Canal Bank _v._ Lowery, 93 U.S. 72 (1876), 692 Cheney Bros. Co. _v._ Massachusetts, 246 U.S. 147 (1918), 187, 197, 1150 Cherokee Nation _v._ Georgia, 5 Pet. 1 (1831), 431, 548, 610 Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890), 132, 432, 872 Cherokee Tobacco, The, 11 Wall. 616 (1871), 421, 432, 433 Chesapeake & O.R. Co. _v._ Miller, 114 U.S. 176 (1885), 343 Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S. 603 (1917), 1011, 1012 Chicago _v._ Sturges, 222 U.S. 313 (1911), 1036 Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915), 327, 346, 352, 1011 Chicago & A.R. Co. _v._ Wiggins Ferry Co., 119 U.S. 615 (1887), 654, 676, 677 Chicago & Grand Trunk Ry. Co. _v._ Wellman, 143 U.S. 339 (1892), 539, 540, 561, 1005, 1009 Chicago & N.W.R. Co. _v._ Fuller, 17 Wall. 560 (1873), 126 Chicago & N.W.R. Co. _v._ Nye Schneider Fowler Co., 260 U.S. 35 (1922), 1015, 1092 Chicago & N.W.R. Co. _v._ Whitton, 13 Wall. 270 (1872), 311 Chicago & S. Airlines _v._ Waterman Steamship Corp., 333 U.S. 103 (1948), 473, 474, 550, 623 Chicago, B. & K.C.R. Co. _v._ Guffey, 120 U.S. 569 (1887), 348 Chicago, B. & Q.R. Co. _v._ Babcock, 204 U.S. 585 (1907), 1152 Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897), 752, 897, 999, 1010, 1063, 1067, 1089 Chicago, B. & Q.R. Co. _v._ Cram, 228 U.S. 70 (1913), 1016 Chicago, B. & Q.R. Co. _v._ Harrington, 241 U.S. 177 (1916), 141 Chicago, B. & Q.R. Co. _v._ Illinois ex rel. Grimwood, 200 U.S. 561 (1906), 982, 1010, 1011 Chicago, B. & Q.R. Co. _v._ Iowa, 94 U.S. 155 (1877), 1009, 1143 Chicago, B. & Q.R. Co. _v._ McGuire, 219 U.S. 549 (1911), 986, 990 Chicago, B. & Q.R. Co. _v._ Nebraska, 170 U.S. 57 (1898), 1011 Chicago, B. & Q.R. Co. _v._ Wisconsin R.R. Com., 237 U.S. 220 (1915), 221 Chicago Board of Trade _v._ Olsen, 262 U.S. 1 (1923), 149 Chicago City _v._ Robbins, 2 Bl. 419 (1862), 604 Chicago Dock & Canal Co. _v._ Fraley, 228 U.S. 680 (1913), 1146 Chicago, I. & L.R. Co. _v._ United States, 219 U.S. 486 (1911), 247 Chicago, I. & L.R. Co. _v._ United States, 270 U.S. 287 (1926), 861 Chicago L. Ins. Co. _v._ Cherry, 244 U.S. 25 (1917), 1141 Chicago, M. & St. P.R. Co. _v._ Ackley, 94 U.S. 179 (1877), 1143 Chicago, M. & St. P.R. Co. _v._ Iowa, 233 U.S. 334 (1914), 1013 Chicago, M. & St. P.R. Co. _v._ Minneapolis C. & C. Asso., 247 U.S. 490 (1918), 1013 Chicago, M. & St. P.R. Co. _v._ Minnesota, 134 U.S. 418 (1890), 77, 995, 999 Chicago, M. & St. P.R. Co. _v._ Polt, 232 U.S. 165 (1914), 1015 Chicago, M. & St. P.R. Co. _v._ Public Utilities Commission, 274 U.S. 344 (1927), 1000 Chicago, M. & St. P.R. Co. _v._ Solan, 169 U.S. 133 (1898), 223 Chicago, M. & St. P.R. Co. _v._ Wisconsin, 238 U.S. 491 (1915), 344, 1012 Chicago, R.I. & P.R. Co. _v._ Arkansas, 219 U.S. 453 (1911), 223, 1014 Chicago, R.I. & P.R. Co. _v._ Cole, 251 U.S. 54 (1919), 1091 Chicago, R.I. & P.R. Co. _v._ Cramer, 232 U.S. 490 (1914), 247 Chicago, R.I. & P.R. Co. _v._ Hardwick Farmers Elevator Co., 226 U.S. 426 (1913), 247 Chicago, R.I. & P.R. Co. _v._ McGlinn, 114 U.S. 542 (1885), 305 Chicago, R.I. & P.R. Co. _v._ Perry, 259 U.S. 548 (1922), 992, 1158 Chicago, R.I. & P.R. Co. _v._ Sturm, 174 U.S. 710 (1899), 674 Chicago, R.I. & P.R. Co. _v._ United States, 284 U.S. 80 (1931), 862 Chicago, St. P., M. & O.R. Co. _v._ Holmberg, 282 U.S. 162 (1930), 1011 Chicago Title & Trust Co. _v._ 4136 Wilcox Bldg. Corp., 302 U.S. 120 (1937), 264 Chinese Exclusion Case, 120 U.S. 581 (1889), 259 Chin Tow _v._ United States, 208 U.S. 8 (1908), 852 Chirac _v._ Chirac, 2 Wheat. 259 (1817), 258, 416 Chisholm _v._ Georgia, 2 Dall. 419 (1793), 60, 334, 512, 539, 585, 591, 596, 597, 611, 929, 930 Choate _v._ Trapp, 224 U.S. 665 (1912), 433, 864 Choctaw O. & G.R. 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Bank _v._ Durr, 257 U.S. 99 (1921), 1044 Citizens Savings & Loan Association _v._ Topeka, 20 Wall. 655 (1875), 751, 1037 City Bank Farmers Trust Co. _v._ Schnader, 293 U.S. 112 (1934), 1045 City of Panama, The, 101 U.S. 453 (1880), 575, 704 Civil Rights Cases, 109 U.S. 3 (1883), 919, 952, 953, 1175 Claflin _v._ Houseman, 93 U.S. 130 (1876), 636, 637, 726, 739 Clallam County _v._ United States, 263 U.S. 341 (1923), 289, 310, 733 Clark _v._ Allen, 331 U.S. 503 (1947), 417, 425 Clark _v._ Barnard, 108 U.S. 436 (1883), 936 Clark _v._ Graham, 6 Wheat. 577 (1821), 651 Clark _v._ Nash, 198 U.S. 361 (1905), 1063, 1065 Clark _v._ Paul Gray, Inc., 306 U.S. 583 (1939), 212, 1151 Clark _v._ Poor, 274 U.S. 554 (1927), 212 Clark _v._ Smith, 13 Pet. 195 (1839), 895 Clark _v._ Willard, 292 U.S. 112 (1934), 681 Clark _v._ Wooster, 119 U.S. 322 (1886), 893 Clark Distilling Co. _v._ Western Maryland R. Co., 242 U.S. 311 (1917), 176, 219, 239, 1032 Clark Thread Co. _v._ Willimantic Linen Co., 140 U.S. 481 (1891), 272 Clarke _v._ Clarke, 178 U.S. 186 (1900), 673 Clarke, Ex parte, 100 U.S. 399 (1880), 93, 94 Clason _v._ Indiana, 306 U.S. 439 (1939), 237 Clement Nat. Bank _v._ Vermont, 231 U.S. 120 (1914), 1058 Cleveland _v._ United States, 323 U.S. 329 (1945), 115, 733 Cleveland _v._ United States, 329 U.S. 14 (1946), 170 Cleveland, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 439 (1894), 201 Cleveland Electric Ry. Co. _v._ Cleveland, 204 U.S. 116 (1907), 1009 Cline _v._ Frink Dairy, 274 U.S. 445 (1927), 1097 Clinton _v._ Englebrecht, 13 Wall. 434 (1872), 704 Cloverleaf Co. _v._ Patterson, 315 U.S. 148 (1942), 250 Cluett _v._ Claflin, 140 U.S. 180 (1891), 273 Clyatt _v._ United States, 197 U.S. 207 (1905), 951, 953 Clyde Mallory Lines _v._ Alabama ex rel. State Docks Commission, 296 U.S. 261 (1935), 366 Cochran _v._ Kansas, 316 U.S. 255 (1942), 1166 Cochran _v._ Louisiana State Bd. of Ed., 281 U.S. 370 (1930), 764, 1037 Cockrill _v._ California, 268 U.S. 258 (1925), 1096 Coe _v._ Armour Fertilizer Works, 237 U.S. 413 (1915), 1074, 1085, 1088 Coe _v._ Coe, 334 U.S. 378 (1948), 668, 669 Coe _v._ Errol, 116 U.S. 517 (1886), 171, 180, 185 Coffey _v._ Harlan County, 204 U.S. 659 (1907), 1092 Coffey _v._ United States, 116 U.S. 436 (1886), 840 Coffin _v._ Coffin, 4 Mass. 1 (1808), 99, 100 Coffin Bros. & Co. _v._ Bennett, 277 U.S. 29 (1928), 1087 Coffman _v._ Breeze Corporations, Inc., 323 U.S. 316 (1945), 540, 550, 553, 562 Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), 564, 608, 1090, 1166 Cohens _v._ Virginia, 6 Wheat 264 (1821), 121, 303, 538, 554, 560, 569, 585, 593, 597, 612, 613, 625, 929 Cole _v._ Arkansas, 333 U.S. 196 (1948), 1133 Cole _v._ Arkansas, 338 U.S. 345 (1949), 1097 Cole _v._ Cunningham, 133 U.S. 107 (1890), 654, 674, 687 Colegrove _v._ Green, 328 U.S. 549 (1946), 93, 94, 548, 1165 Coleman _v._ Miller, 307 U.S. 433 (1939), 98, 547, 548, 712, 714, 982 Colgate _v._ Harvey, 296 U.S. 404 (1935), 693, 968, 971, 1149 Collector _v._ Day, 11 Wall. 113 (1871), 106, 916, 917 Collins, Ex parte, 277 U.S. 565 (1938), 631 Collins _v._ Hardyman, 341 U.S. 651 (1951), 810 Collins _v._ Johnston, 237 U.S. 502 (1915), 1133, 1161 Collins _v._ Loisel, 262 U.S. 426 (1923), 839 Collins _v._ New Hampshire, 171 U.S. 30 (1898), 240 Collins _v._ Texas, 223 U.S. 288 (1912), 1024 Collins _v._ Yosemite Park & Curry Co., 304 U.S. 518 (1938), 305, 731, 1233 Colorado _v._ United States, 271 U.S. 153 (1926), 137 Colorado Central Consol. 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(Mass.) 304 (1825), 771 Commonwealth _v._ Gordon, 66 D & C (Pa.) 101 (1949), 781 Commonwealth _v._ Pouliot, 292 Mass. 229 (1935), 952 Communications Comm'n. _v._ N.B.C, 319 U.S. 239 (1943), 788 Compania Espanola de Navegacion Maritima, S.A. _v._ The Navemar, 303 U.S. 68 (1938), 474, 609 Compagnie Francaise de Navigation à Vapeur _v._ Louisiana State Board of Health, 186 U.S. 380 (1902), 217, 1029 Concordia P. Ins. Co. _v._ Illinois, 292 U.S. 535 (1934), 1150 Concrete Appliances Co. _v._ Gomery, 269 U.S. 177 (1925), 273 Confiscation Cases, The. _See_ United States _v._ Clarke. Conley _v._ Mathieson Alkali Works, 190 U.S. 406 (1903), 1077 Connecticut General Life Insurance Co. _v._ Johnson, 303 U.S. 77 (1938), 1056, 1143 Connecticut Ins. Co. _v._ Moore, 333 U.S. 541 (1948), 362, 1034 Connecticut Mut. L. Ins. Co. _v._ Cushman, 108 U.S. 51 (1883), 355 Connecticut Mut. Ins. Co. _v._ Spratley, 172 U.S. 602 (1899), 660 Conner _v._ Elliott, 18 How. 591 (1856), 691 Connolly _v._ Union Sewer Pipe Co., 184 U.S. 540 (1902), 1160 Conrad _v._ Waples, 96 U.S. 279 (1878), 295 Consolidated Coal Co. _v._ Illinois, 185 U.S. 203 (1902), 987 Consolidated Edison Co. _v._ National Labor Relations Board, 305 U.S. 197 (1938), 849, 850 Consolidated Rendering Co. _v._ Vermont, 207 U.S. 541 (1908), 1122, 1167 Consumers' Co. _v._ Hatch, 224 U.S. 148 (1912), 1010 Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932), 212, 227, 228, 934, 1033, 1151 Continental Co. _v._ Tennessee, 311 U.S. 5 (1940), 1055 Continental Ill. Nat. Bank & T. Co. _v._ Chicago, R.I., & P.R. Co., 294 U.S. 648 (1935), 262, 263, 362, 858 Continental Tie & Lumber Co. _v._ United States, 286 U.S. 290 (1932), 1197 Converse _v._ Hamilton, 224 U.S. 243 (1912), 678 Conway _v._ Taylor, 1 Bl. 603 (1862), 231 Cook _v._ Cook, 342 U.S. 126 (1951), 670 Cook _v._ Hart, 146 U.S. 183 (1892), 696 Cook _v._ Marshall County, 196 U.S. 261 (1905), 1148 Cook _v._ Pennsylvania, 97 U.S. 566 (1878), 185, 364 Cook _v._ Tait, 265 U.S. 47 (1924), 862 Cook _v._ United States, 138 U.S. 157 (1891), 317, 881 Cook _v._ United States, 288 U.S. 102 (1933), 422 Cooke _v._ United States, 267 U.S. 517 (1925), 517, 847 Cooley _v._ Board of Wardens of Port of Philadelphia, 12 How. 299 (1851), 176, 180, 217, 219, 227, 229, 323, 364, 366 Coolidge _v._ Long, 282 U.S. 582 (1931), 863, 1039 Coombes _v._ Getz, 285 U.S. 434 (1932), 330, 344, 1035 Cooney _v._ Mountain States Telephone & Telegraph Co., 294 U.S. 384 (1935), 126, 195, 197 Cooper _v._ Newell, 173 U.S. 555 (1899), 684 Cooper _v._ Reynolds, 10 Wall. 308 (1870), 658, 1081 Cooper _v._ United States, 280 U.S. 409 (1930), 863 Coppage _v._ Kansas, 236 U.S. 1 (1915), 985, 991 Corfield _v._ Coryell, 6 Fed. Cas. 3230 (1823), 689, 690 Corn Exch. Bank _v._ Coler, 280 U.S. 218 (1930), 1081 Corn Products Ref. Co. _v._ Eddy, 249 U.S. 427 (1919), 238, 241, 1019, 1154 Cornell _v._ Coyne, 192 U.S. 418 (1904), 321 Cornell Steamboat Co. _v._ United States, 321 U.S. 634 (1944), 130 Coronado Coal Co. _v._ United Mine Workers, 268 U.S. 295 (1925), 149 Corp. of Brick Church _v._ Mayor et al., 5 Cowen (N.Y.) 538 (1826), 349 Corporations Commission _v._ Lowe, 281 U.S. 431 (1930), 1154 Corrigan _v._ Buckley, 271 U.S. 323 (1926), 1161 Corry _v._ Baltimore, 196 U.S. 466 (1905), 1060 Corson _v._ Maryland, 120 U.S. 502 (1887), 187 Cotting _v._ Godard, 183 U.S. 79 (1901), 996 Coughran _v._ Bigelow, 164 U.S. 301 (1896), 896 Coulter _v._ Louisville & N.R. Co., 196 U.S. 599 (1905), 1152 Counselman _v._ Hitchcock, 142 U.S. 547 (1892), 842, 878 Covell _v._ Heyman, 111 U.S. 176 (1884), 526, 626, 627 Coverdale _v._ Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938), 181, 198 Covington _v._ Kentucky, 173 U.S. 231 (1899), 340 Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894), 120, 193, 218, 231 Cox _v._ Lott (State Tonnage Tax Cases), 12 Wall. 204 (1871), 366 Cox _v._ New Hampshire, 312 U.S. 569 (1941), 788 Cox _v._ Texas, 202 U.S. 446 (1906), 1148 Cox _v._ Wood, 247 U.S. 3 (1918), 285 Coy, In re, 127 U.S. 731 (1888), 94 Coyle _v._ Smith, 221 U.S. 559 (1911), 698 Craig _v._ Harney, 331 U.S. 367 (1947), 784 Craig _v._ Hecht, 263 U.S. 255 (1923), 516 Craig _v._ Missouri, 4 Pet. 410 (1830), 326 Crain _v._ United States, 162 U.S. 625 (1896), 847 Cramer _v._ United States, 325 U.S. 1 (1945), 640, 642, 645 Crandall _v._ Nevada, 6 Wall. 35 (1868), 180, 192, 242, 967, 968 Crane _v._ Commissioner, 331 U.S. 1 (1947), 1198 Crane _v._ Hahlo, 258 U.S. 142 (1922), 343 Crane _v._ Johnson, 242 U.S. 339 (1917), 1155 Crane _v._ New York, 239 U.S. 195 (1915), 971, 1158 Crane-Johnson Co. _v._ Helvering, 311 U.S. 54 (1940), 1197 Crawford _v._ Branch Bank of Alabama, 7 How. 279 (1849), 355 Crawford _v._ United States, 212 U.S. 183 (1909), 879 Cream of Wheat Co. _v._ Grand Forks County, 253 U.S. 325 (1920), 1050 Crenshaw _v._ Arkansas, 227 U.S. 389 (1913), 187 Crenshaw _v._ United States, 134 U.S. 99 (1890), 340, 458 Crescent Cotton Oil Co. _v._ Mississippi, 257 U.S. 129 (1921), 1145 Crew Levick Co. _v._ Pennsylvania, 245 U.S. 292 (1917), 364 Cross _v._ Burke, 146 U.S. 82 (1892), 615 Cross _v._ North Carolina, 132 U.S. 131 (1889), 1141 Crossman _v._ Lurman, 192 U.S. 189 (1904), 248 Crowell _v._ Benson, 285 U.S. 22 (1932), 622, 893, 1003 Crowley _v._ Christensen, 137 U.S. 86 (1890), 971 Crutcher _v._ Kentucky, 141 U.S. 47 (1891), 194, 202, 689, 967 Cudahy Packing Co. _v._ Hinkle, 278 U.S. 460 (1929), 195, 1051 Cudahy Packing Co. _v._ Minnesota, 246 U.S. 450 (1918), 200 Cudahy Packing Co. _v._ Parramore, 263 U.S. 418 (1923), 681 Cullinan _v._ Walker, 262 U.S. 134 (1923), 1195 Cumming _v._ County Board of Education, 175 U.S. 528 (1899), 1162 Cummings _v._ Deutsche Bank, 300 U.S. 115 (1937), 865 Cummings _v._ Missouri, 4 Wall. 277 (1867), 316, 327, 328, 736 Cummings _v._ Nat. Bank, 101 U.S. 153 (1880), 895 Cunningham _v._ Macon & Brunswick R. Co., 109 U.S. 446 (1883), 588, 589, 931 Cunningham _v._ Neagle, 135 U.S. 1 (1890), 727 Cunnius _v._ Reading School Dist., 198 U.S. 458 (1905), 1082 Cuno Corp. _v._ Automatic Devices Corp., 314 U.S. 84 (1941), 272, 273 Curran _v._ Arkansas, 15 How. 304 (1853), 326, 332, 344 Currin _v._ Wallace, 306 U.S. 1 (1939), 76, 78, 176, 552, 853, 854 Curry _v._ McCanless, 307 U.S. 357 (1939), 1047, 1048, 1050 Curry _v._ United States, 314 U.S. 14 (1941), 731 Curtis, Ex parte, 106 U.S. 371 (1882), 309, 460, 793 Curtis _v._ Whitney, 13 Wall. 68 (1872), 355 Cusack Co. _v._ Chicago, 242 U.S. 526 (1917), 1029 Cuyahoga River Power Co. _v._ Akron, 240 U.S. 462 (1916), 329 D Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282 (1921), 120, 182 Dallemagne _v._ Moisan, 197 U.S. 169 (1905), 636 Dalton _v._ Jennings, 93 U.S. 271 (1876), 273 Dane _v._ Jackson, 256 U.S. 589 (1921), 1037 Danforth _v._ United States, 308 U.S. 271 (1939), 871 Daniel Ball, The, 10 Wall. 557 (1871), 125, 128, 577, 868 Daniel _v._ Family Security Life Ins. Co., 336 U.S. 220 (1949), 564, 1021, 1155 Danzer Co. _v._ Gulf & S.I.R. Co., 268 U.S. 633 (1925), 857 Darby _v._ Mayer, 10 Wheat. 465 (1825), 673 D'Arcy _v._ Ketchum, 11 How. 165 (1850), 658 Darling _v._ Newport News, 249 U.S. 540 (1919), 1067 Darnell _v._ Indiana, 226 U.S. 390 (1912), 1149 Darnell & Son Co. _v._ Memphis, 208 U.S. 113 (1908), 185 Darrington _v._ Bank of Alabama, 13 How. 12 (1851), 326 Dartmouth College _v._ Woodward, 4 Wheat. 518 (1819), 332, 336, 338, 352, 555 Davidson _v._ New Orleans, 96 U.S. 97 (1878), 847, 972, 999, 1062, 1146 Davis, The, 10 Wall. 15 (1870), 586, 610 Davis _v._ Beason, 133 U.S. 333 (1890), 765, 766, 772 Davis _v._ Brig Seneca, 21 Fed. Cas. No. 12,670 (1829), 573 Davis _v._ Cleveland, C.C. & St. L.R. Co., 217 U.S. 157 (1910), 235 Davis _v._ Davis, 305 U.S. 32 (1938), 663 Davis _v._ Department of Labor, 317 U.S. 249 (1942), 581, 583 Davis _v._ Elmira Savings Bank, 161 U.S. 275 (1896), 725 Davis _v._ Farmers Co-operative Co., 262 U.S. 312 (1923), 1076 Davis _v._ Gray, 16 Wall. 203 (1873), 931 Davis _v._ Massachusetts, 167 U.S. 43 (1897), 785, 809 Davis _v._ Hildebrant. _See_ Ohio ex rel. Davis _v._ Hildebrant. Davis _v._ Schnell, 81 F. Supp. 872 (1949), 1186 Davis _v._ United States, 328 U.S. 582 (1946), 824 Davis _v._ Virginia, 236 U.S. 697 (1915), 187 Day-Brite Lighting, Inc. _v._ Missouri, 342 U.S. 421 (1952), 989 Dayton Coal & I. Co. _v._ Barton, 183 U.S. 23 (1901), 987 Dayton-Goose Creek R. Co. _v._ United States, 263 U.S. 456 (1924), 861 Dean Milk Co. _v._ Madison, 340 U.S. 349 (1951), 238 Debs, In re, 158 U.S. 564 (1895), 268, 484, 495, 516, 878 Debs _v._ United States, 249 U.S. 211 (1919), 297, 774, 794 Decatur _v._ Paulding, 14 Pet. 497 (1840), 501, 546 De Geofroy _v._ Riggs, 133 U.S. 258 (1890), 302, 416 De Groot _v._ United States, 5 Wall. 419 (1867), 514, 536, 586 De Jonge _v._ Oregon, 299 U.S. 353 (1937), 757, 773, 806 Delaware, L. & W.R. Co. _v._ Morristown, 276 U.S. 182 (1928), 1066 Delaware, L. & W.R. Co. _v._ Pennsylvania, 198 U.S. 341 (1905), 1050 Delaware Railroad Tax, 18 Wall. 206 (1874), 342 Delgado _v._ Chavez, 140 U.S. 586 (1891), 1096. De Lima _v._ Bidwell, 182 U.S. 1 (1901), 419 De Meerleer _v._ Michigan, 329 U.S. 663 (1947), 1103, 1108 Demorest _v._ City Bank Co., 321 U.S. 36 (1944), 1034 Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. 272 (1856), 308, 823, 845, 846 Dennick _v._ R.R., 103 U.S. 11 (1881), 675, 676 Dennis _v._ United States, 339 U.S. 162 (1950), 879 Dennis _v._ United States, 341 U.S. 494 (1951), 519, 770, 795, 796, 801, 843 Denny _v._ Bennett, 128 U.S. 489 (1888), 265 Dent _v._ West Virginia, 129 U.S. 114 (1889), 1024 Denver _v._ Denver Union Water Co., 216 U.S. 178 (1918), 1008 Denver _v._ New York Trust Co., 229 U.S. 123 (1913), 1009 Denver & R.G.R. Co. _v._ Denver, 250 U.S. 241 (1919), 223, 345, 1009, 1014 Denver Union Stock Yards Co. _v._ United States, 304 U.S. 470 (1938), 860 Dept. of Treasury of Indiana _v._ Mfg. Co., 313 U.S. 252 (1941), 204 Dept. of Treasury of Indiana _v._ Wood Corp., 313 U.S. 62 (1941), 198, 204 Des Moines Gas Co. _v._ Des Moines, 238 U.S. 153 (1915), 1002, 1007, 1008 Des Moines Nat. Bank _v._ Fairweather, 263 U.S. 103 (1923), 734 De Treville _v._ Smalls, 98 U.S. 517 (1879), 321 Detroit _v._ Osborne, 135 U.S. 492 (1890), 687 Detroit _v._ Parker, 181 U.S. 399 (1901), 1059 Detroit Bank _v._ United States, 317 U.S. 329 (1943), 853, 854 Detroit Trust Company _v._ The "Thomas Barlum," 293 U.S. 21 (1934), 311 Detroit United Railway Co. _v._ Detroit, 255 U.S. 171 (1921), 1009 Detroit United Railway Co. _v._ Michigan, 242 U.S. 238 (1916), 329 Dewey _v._ Des Moines, 173 U.S. 193 (1899), 1062, 1080 Dewing _v._ Perdicaries, 96 U.S. 193 (1878), 728 Diamond Glue Co. _v._ United States Glue Co., 187 U.S. 611 (1903), 120 Diamond Match Co. _v._ Ontonagon, 188 U.S. 82 (1903), 181 Diamond Rubber Co. _v._ Consolidated Tire Co., 220 U.S. 428 (1911), 272 Dick _v._ United States, 208 U.S. 340 (1908), 253, 432, 699 Dier _v._ Banton, 262 U.S. 147 (1923), 843 Dietzsch _v._ Huidekoper, 103 U.S. 494 (1881), 629 Diggs _v._ Wolcott, 4 Cr. 179 (1807), 628 Dillon _v._ Gloss, 256 U.S. 368 (1921), 39, 712, 713, 714 Dimick _v._ Schiedt, 293 U.S. 474 (1935), 892, 896 Di Santo _v._ Pennsylvania, 273 U.S. 34 (1927), 196, 219, 228 District of Columbia _v._ Bailey, 171 U.S. 161 (1898), 301, 854 District of Columbia _v._ Brooke, 214 U.S. 138 (1909), 854 District of Columbia _v._ Clawans, 300 U.S. 617 (1937), 878 District of Columbia _v._ Colts, 282 U.S. 63 (1930), 878 Dixie Ohio Express Co. _v._ State Revenue Commission, 306 U.S. 72 (1939), 212 Dobbins _v._ Erie County, 16 Pet. 435 (1842), 731 Dobbins _v._ Los Angeles, 195 U.S. 223 (1904), 1028 Dodge _v._ Board of Education of Chicago, 302 U.S. 74 (1937), 340 Dodge _v._ Brady, 240 U.S. 122 (1916), 621 Dodge _v._ Osborn, 240 U.S. 118 (1916), 621, 858 Dodge _v._ Woolsey, 18 How. 331 (1856), 329, 541, 602 Doe _v._ Braden, 16 How. 636 (1853), 473 Doe ex dem. Governeur's Heirs _v._ Robertson, 11 Wheat. 332 (1826), 258 Dohany _v._ Rogers, 281 U.S. 362 (1930), 1065, 1067, 1166 Doherty & Co. _v._ Goodman, 294 U.S. 623 (1935), 691 Dominion Hotel _v._ Arizona, 249 U.S. 265 (1919), 1146, 1159 Donald _v._ Philadelphia & R. Coal & I. Co, 241 U.S. 329 (1916), 638 Donaldson _v._ Read Magazine, 333 U.S. 178 (1948), 269, 805, 859, 905 Dooley _v._ United States, 182 U.S. 222 (1901), 404 Dooley _v._ United States, 183 U.S. 151 (1901), 321 Dorchy _v._ Kansas, 264 U.S. 286 (1924), 992 Doremus _v._ Board of Education, 342 U.S. 429 (1952), 542, 763 Dorr _v._ United States, 195 U.S. 138 (1904), 703 Doty _v._ Love, 295 U.S. 64 (1935), 1020 Double-Pointed Tack Co. _v._ Two Rivers Mfg. Co., 109 U.S. 117 (1883), 273 Douglas _v._ Kentucky, 168 U.S. 488 (1897), 1031 Douglas _v._ New York, N.H. & H.R. Co., 279 U.S. 377 (1929), 687, 692 Douglas _v._ Noble, 261 U.S. 165 (1923), 1024 Dow _v._ Beidelman, 125 U.S. 680 (1888), 999 Dow _v._ Johnson, 100 U.S. 158 (1880), 294 Dow Chemical Co. _v._ Halliburton Co., 324 U.S. 320 (1945), 272 Dowling Bros. Distilling Co. _v._ United States, 153 F. (2d) 353 (1946), 1234 Downes _v._ Bidwell, 182 U.S. 244 (1901), 60, 110, 430, 703 Downham _v._ Alexandria, 10 Wall. 173 (1870), 693 Doyle _v._ Continental Ins. Co., 94 U.S. 535 (1877), 638 Doyle _v._ Mitchell Bros. Co., 247 U.S. 179 (1918), 1192 Dozier _v._ Alabama, 218 U.S. 124 (1910), 187 Draper _v._ United States, 164 U.S. 240 (1896), 699 Dred Scott Case: _See_ Scott _v._ Sandford. Drew _v._ Thaw, 235 U.S. 432 (1914), 695 Dreyer _v._ Illinois, 187 U.S. 71 (1902), 1071, 1135 Driscoll _v._ Edison Co., 307 U.S. 104 (1939), 1005 Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941), 781, 787 Dubuque & S.C.R. Co. _v._ Richmond, 19 Wall. 584 (1874), 362 Duckworth _v._ Arkansas, 314 U.S. 390 (1941), 218, 241, 1233 Dugan _v._ Ohio, 277 U.S. 61 (1928), 1131 Dugan _v._ United States, 3 Wheat. 172 (1818), 584 Duhne _v._ New Jersey, 251 U.S. 311 (1920), 930 Duignan _v._ United States, 274 U.S. 195 (1927), 897 Duke _v._ United States, 301 U.S. 492 (1937), 838 Dumbra _v._ United States, 268 U.S. 435 (1925), 825 Duncan _v._ Darst, 1 How. 301 (1843), 627 Duncan _v._ Kahanamoku, 324 U.S. 833 (1945), 401 Duncan _v._ Kahanamoku, 327 U.S. 304 (1946), 294 Duncan _v._ McCall, 139 U.S. 449 (1891), 634 Duncan _v._ Missouri, 152 U.S. 377 (1894), 329, 1166 Dunham _v._ Dennison Mfg. Co., 154 U.S. 103 (1894), 273 Duplex Printing Press Co. _v._ Deering, 254 U.S. 443 (1921), 149, 524 Durand _v._ Hollins, 4 Blatch. 451 (1860), 487 Durousseau _v._ United States, 6 Cr. 307 (1810), 614 Dynes _v._ Hoover, 20 How. 65 (1858), 286 E East Hartford _v._ Hartford Bridge Co., 10 How. 511 (1851), 340 East New York Savings Bank _v._ Hahn, 326 U.S. 230 (1945), 361 East Ohio Gas Co. _v._ Tax Com. of Ohio, 283 U.S. 465 (1931), 195, 234 Eastern Air Transport, Inc. _v._ South Carolina Tax Comm., 285 U.S. 147 (1932), 184, 186 Easton, Ex parte, 95 U.S. 68 (1877), 574 Eberle _v._ Michigan, 232 U.S. 700 (1914), 1155 Eberly _v._ Moore, 24 How. 147 (1861), 526 Economy Light and Power Co. _v._ United States, 256 U.S. 113 (1921), 128, 230 Edelman _v._ Boeing Air Transport, Inc., 289 U.S. 249 (1933), 186 Educational Films Corp. _v._ Ward, 282 U.S. 379 (1931), 734 Edwards _v._ California, 314 U.S. 160 (1941), 120, 192, 218, 242, 968 Edwards _v._ Cuba Railroad, 268 U.S. 628 (1925), 1197 Edwards _v._ Elliott, 21 Wall. 532 (1874), 892 Edwards _v._ Kearzey, 96 U.S. 595 (1878), 360 Edwards _v._ United States, 286 U.S. 482 (1932), 103 Edye _v._ Robertson (Head Money Cases), 112 U.S. 580 (1884), 418, 420, 431 Effinger _v._ Kenney, 115 U.S. 566 (1885), 356 Eichholz _v._ Public Service Com. of Missouri, 306 U.S. 268 (1939), 227 Eilenbecker _v._ District Court, 134 U.S. 31 (1890), 1096 Eisner _v._ Macomber, 252 U.S. 189 (1920), 1192, 1193, 1194, 1195 Electric Bond & Share Co. _v._ Securities & Exchange Commission, 303 U.S. 419 (1938), 151, 270, 550, 552 Elk _v._ Wilkins, 112 U.S. 94 (1884), 255, 1171 Elkison _v._ Deliesseline, 8 Fed. Cas. No. 4366 (1823), 241 Ellerbee _v._ Aderhold, 5 F. Supp. 1022 (1934), 1214 Ellis _v._ United States, 206 U.S. 246 (1007), 855 El Paso & N.E.R. Co. _v._ Gutierrez, 215 U.S. 87 (1909), 703 Emblem _v._ Lincoln Land Co., 184 U.S. 600 (1902), 702, 703 Embry _v._ Palmer, 107 U.S. 3 (1883), 305, 311, 657, 685 Emert _v._ Missouri, 156 U.S. 296 (1895), 184, 1155 Employers' Liability Assurance Co. _v._ Cook, 281 U.S. 233 (1930), 582 Employers' Liability Cases. _See_ Howard _v._ Illinois C.R. Co. Endicott Co. _v._ Encyclopedia Press, 266 U.S. 285 (1924), 1081 Endicott Johnson Corp. _v._ Perkins, 317 U.S. 501 (1943), 521 Endo, Ex parte, 323 U.S. 283 (1944), 297 Engel _v._ O'Malley, 219 U.S. 128 (1911), 235 English _v._ Richardson, 224 U.S. 680 (1912), 864 Equitable L. Assur. Soc. _v._ Brown, 187 U.S. 308 (1902), 684 Equitable L. Assur. Soc. _v._ Pennsylvania, 238 U.S. 143 (1915), 1055 Erb _v._ Morasch, 177 U.S. 584 (1900), 223 Erhardt _v._ Boaro, 113 U.S. 527 (1885), 78 Erie R. Co. _v._ Erie & Western T. Co., 204 U.S. 220 (1907), 575 Erie R. Co. _v._ New York, 233 U.S. 671 (1914), 247 Erie R. Co. _v._ Public Utility Commission, 254 U.S. 394 (1921), 223 Erie R. Co. _v._ Solomon, 237 U.S. 427 (1915), 1014 Erie R. Co. _v._ Tompkins, 304 U.S. 64 (1938), 332, 605 Erie R. Co. _v._ Williams, 233 U.S. 685 (1914), 983, 987 Escanaba & L.M. Transp. Co. _v._ Chicago, 107 U.S. 678 (1883), 231, 698 Esenwein _v._ Commonwealth, 325 U.S. 279 (1945), 666, 667 Essanay Film Mfg. Co. _v._ Kane, 258 U.S. 358 (1922), 524 Essex _v._ New England Teleg. Co., 239 U.S. 313 (1915), 232 Essgee Co. _v._ United States, 262 U.S. 151 (1923), 827 Estin _v._ Estin, 334 U.S. 541 (1948), 667, 670 Ettor _v._ Tacoma, 228 U.S. 148 (1913), 342 Eubank _v._ Richmond, 226 U.S. 137 (1912), 983, 1029 Euclid _v._ Ambler Realty Co., 272 U.S. 365 (1026), 1028 Eunson _v._ Dodge, 18 Wall. 414 (1873), 271 Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921), 138, 182, 195 Evans _v._ Eaton, 3 Wheat 454 (1818), 274 Evans _v._ Gore, 253 U.S. 245 (1920), 105, 530 Evans _v._ Jordan, 9 Cr. 199 (1815), 271, 275 Everard's Breweries _v._ Day, 265 U.S. 545 (1924), 919 Everett _v._ Everett, 215 U.S. 203 (1909), 654 Everson _v._ Board of Education, 330 U.S. 1 (1947), 760, 764 Exchange, The _v._ McFaddon, 7 Cr. 116 (1812), 609 F Fahey _v._ Mallonee, 332 U.S. 245 (1947), 76 Fair, The, _v._ Kohler Die Co., 228 U.S. 22 (1913), 567 Fairbank _v._ United States, 181 U.S. 283 (1901), 322 Fairchild _v._ Hughes, 258 U.S. 126 (1922), 542, 715 Fairfax's Devisee _v._ Hunter's Lessee, 7 Cr. 603 (1813), 416 Fair Haven & W.R. Co. _v._ New Haven, 203 U.S. 379 (1906), 344 Fairmont Creamery Co. _v._ Minnesota, 274 U.S. 1 (1927), 1018 Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502 (1942), 340, 357 Fall _v._ Eastin, 215 U.S. 1 (1909), 655, 673 Fallbrook Irrig. District _v._ Bradley, 164 U.S. 112 (1896), 1059, 1140 Fargo _v._ Hart, 193 U.S. 490 (1904), 1053 Fargo _v._ Michigan (Fargo _v._ Stevens), 121 U.S. 230 (1887), 204 Farish _v._ State Banking Board, 235 U.S. 498 (1915), 936 Farmers' & Mechanics' Nat. Bank _v._ Dearing, 91 U.S. 29 (1875), 267 Farmers & Merchants Bank _v._ Federal Reserve Bank, 262 U.S. 649 (1923), 326, 1020 Farmers & M. Sav. Bank _v._ Minnesota, 232 U.S. 516 (1914), 1149 Farmers' Loan & Trust Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 (1900), 627, 628 Farmers' Loan & Trust Co. _v._ Minnesota, 280 U.S. 204 (1930), 1046 Farmers' Union Co-op _v._ Commissioner of Int. Rev., 90 F. (2d) 488 (1937), 1197 Farncomb _v._ Denver, 252 U.S. 7 (1920), 1061 Farrington _v._ Tokushige, 273 U.S. 284 (1927), 855 Fassett, In re, 142 U.S. 479 (1892), 575 Fauntleroy _v._ Lum, 210 U.S. 230 (1908), 654, 657, 674 Fay _v._ New York, 332 U.S. 261 (1947), 1110, 1111, 1131, 1168 Fayerweather _v._ Ritch, 195 U.S. 276 (1904), 848 Federal Baseball Club _v._ National League, 259 U.S. 200 (1922), 120 Federal Communications Commission _v._ Pottsville Broadcasting Co., 309 U.S. 134 (1940), 75 Federal Communications Commission _v._ WJR, 337 U.S. 265 (1949), 850 Federal Compress & Warehouse Co. _v._ McLean, 291 U.S. 17 (1934), 235 Federal Housing Authority _v._ Burr, 309 U.S. 242 (1940), 591 Federal Land Bank _v._ Bismarck Lumber Co., 314 U.S. 95 (1941), 733 Federal Land Bank _v._ Priddy, 295 U.S. 229 (1935), 586 Federal Power Commission _v._ East Ohio Gas Co., 338 U.S. 464 (1950), 138, 921 Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591 (1944), 851, 860, 1004, 1005 Federal Power Commission _v._ National Gas Pipeline Co., 315 U.S. 575 (1942), 137, 851, 860, 1004, 1005 Federal Power Commission _v._ Pacific Power & Light Co., 307 U.S. 156 (1939), 620 Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 (1930), 535, 536, 537, 623 Federal Radio Commission _v._ Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933), 75, 78, 120, 126 Federal Trade Commission _v._ American Tobacco Co., 264 U.S. 298 (1924), 827 Federal Trade Commission _v._ Bunte Bros., 312 U.S. 349 (1941), 153 Federal Trade Commission _v._ Pacific States Paper Trade Assoc., 273 U.S. 52 (1927), 120 Feiner _v._ New York, 340 U.S. 315 (1951), 768, 778 Feldman _v._ United States, 322 U.S. 487 (1944), 843 Felsenheld _v._ United States, 186 U.S. 126 (1902), 111 Felt & Tarrant Manufacturing Co. _v._ Gallagher, 306 U.S. 62 (1939), 190 Felts _v._ Murphy, 201 U.S. 123 (1906), 1127 Fenner _v._ Boykin, 271 U.S. 240 (1926), 934 Fernandez _v._ Wiener, 326 U.S. 340 (1945), 110, 321, 863, 918 Ferry _v._ Corbett, 258 U.S. 609 (1922), 691 Ferry _v._ Spokane P. & S.R. Co., 258 U.S. 314 (1922), 691, 971 Fertilizing Co. _v._ Hyde Park, 97 U.S. 659 (1878), 345 Ficklen _v._ Shelby County Taxing District, 145 U.S. 1 (1892) 188, 191 Fidelity & C. Trust Co. _v._ Louisville, 245 U.S. 54 (1917), 1044 Fidelity & D. Co. _v._ United States, 187 U.S. 315 (1902), 894 Fidelity Mut. Life Asso. _v._ Mettler, 185 U.S. 308 (1902), 1167 Fidelity National Bank & Trust Co. _v._ Swope, 274 U.S. 123 (1927) 514, 551 Fidelity Union Trust Co. _v._ Field, 311 U.S. 169 (1940), 607 Field _v._ Clark, 143 U.S. 649 (1892), 79, 80, 97, 98, 442, 547 Field _v._ Seabury, 19 How. 323 (1857), 702 Fifth Ave. Coach Co. _v._ New York, 221 U.S. 467 (1911), 1154 Filer & S. Co. _v._ Diamond Iron Works, 270 F. 489 (1921), 893 Filer & S. Co. _v._ Diamond Iron Works, 256 U.S. 691 (1921), 893 Finch & Co. _v._ McKittrick, 305 U.S. 395 (1939), 241, 1232 Fink _v._ O'Neil, 106 U.S. 272 (1882), 526 Finley _v._ California, 222 U.S. 28 (1911), 1161 Fire Asso. of Philadelphia _v._ New York, 119 U.S. 110 (1886), 120, 1144, 1146, 1150 First Bank Stock Corp. _v._ Minnesota, 301 U.S. 234 (1937), 1044 First Nat. Bank _v._ Adams, 258 U.S. 362 (1922), 734 First Nat. Bank _v._ Fellows ex rel. Union Trust Co., 244 U.S. 416 (1917), 78, 309 First Nat. Bank _v._ Kentucky, 9 Wall. 353 (1870), 725 First Nat. Bank _v._ Louisiana Tax Commission, 289 U.S. 60 (1933), 1147 First Nat. Bank _v._ Maine, 284 U.S. 312 (1932), 1046, 1047 First Nat. Bank _v._ United Air Lines, 342 U.S. 396 (1952), 677 First Nat. Bank _v._ Yankton County, 101 U.S. 129 (1880), 703 Fischer _v._ St. Louis, 194 U.S. 361 (1904), 1028, 1157 Fisher _v._ Hurst, 333 U.S. 147 (1948), 1163 Fisher _v._ Pace, 336 U.S. 155 (1949), 1130 Fisher's Blend Station _v._ State Tax Commission, 297 U.S. 650 (1936), 126, 195, 204 Fisheries _v._ Holyoke Water Power Co., 104 Mass. 446 (1870), 344 Fisk _v._ Jefferson Police Jury, 116 U.S. 131 (1885), 341, 356 Fiske _v._ Kansas, 274 U.S. 380 (1927), 757, 772, 773 Fitts _v._ McGhee, 172 U.S. 516 (1899), 930, 933 Fitzgerald Co. _v._ Pedersen, 324 U.S. 720 (1945), 157 Flanagan _v._ Federal Coal Co., 267 U.S. 222 (1925), 182 Fleming _v._ Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947), 293 Fleming _v._ Page, 9 How. 603 (1850), 390, 404 Fleming _v._ Rhodes, 331 U.S. 100 (1947), 540, 561, 856 Fletcher _v._ Peck, 6 Cr. 87 (1810), 335, 350, 352, 555, 560, 976 Flexner _v._ Farson, 248 U.S. 289 (1919), 1074 Flint _v._ Stone Tracy Co., 220 U.S. 107 (1911), 98, 102, 107, 319, 827, 863, 1192 Florida _v._ Georgia, 17 How. 478 (1855), 612 Florida _v._ Mellon, 273 U.S. 12 (1927), 110, 594, 596 Florsheim _v._ Schilling, 137 U.S. 64 (1890), 273 Follett _v._ Town of McCormick, 321 U.S. 573 (1944), 563, 792 Fonda, Ex parte, 117 U.S. 516 (1886), 634 Fong Yue Ting _v._ United States, 149 U.S. 698 (1893), 73, 259, 421, 624 Foote & Co. _v._ Stanley, 232 U.S. 494 (1914), 183, 214 Ford _v._ Delta & Pine Land Co., 164 U.S. 662 (1897), 348 Ford _v._ Surget, 97 U.S. 594 (1878), 728 Ford Motor Co. _v._ Beauchamp, 308 U.S. 331 (1939), 198, 203 Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945), 935, 936 Forsyth _v._ Hammond, 166 U.S. 506 (1897), 705 Fort Leavenworth R. Co. _v._ Lowe, 114 U.S. 525 (1885), 307, 429 Ft. Smith Light & Traction Co. _v._ Board of Improv., 274 U.S. 387 (1927), 1154 Ft. Smith Light & Traction Co. _v._ Bourland, 267 U.S. 330 (1925), 1011 Foster _v._ Davenport, 22 How. 244 (1859), 229 Foster _v._ Illinois, 332 U.S. 134 (1947), 1103, 1104 Foster _v._ Kansas ex rel. Johnston, 112 U.S. 201 (1884), 1096 Foster _v._ Master & Wardens of Port of New Orleans, 94 U.S. 246 (1877), 229 Foster _v._ Neilson, 2 Pet. 253 (1829), 414, 418, 422, 426, 472, 473, 547 Foster-Fountain Packing Co. _v._ Haydel 278 U.S. 1 (1928), 219, 245 Foulke _v._ Burke, 342 U.S. 881 (1951), 1107 Fourteen Diamond Rings _v._ United States, 183 U.S. 176 (1901), 413 Fowler _v._ Lindsay, 3 Dall. 411 (1799), 592 Fox _v._ Ohio, 5 How. 410 (1847), 266, 751 Fox _v._ Standard Oil Co., 294 U.S. 87 (1935), 1037, 1148 Fox _v._ Washington, 236 U.S. 273 (1915), 773, 778, 782 Fox Film Corp. _v._ Doyal, 286 U.S. 123 (1932), 276, 734 Francis _v._ Resweber, 329 U.S. 459 (1947), 1161 Francis _v._ Southern Pacific Co., 333 U.S. 445 (1948), 724 Francis Wright, The, 105 U.S. 381 (1882), 615 Frank _v._ Mangum, 237 U.S. 309 (1915), 314, 327, 634, 1127, 1131, 1138, 1139 Frasch _v._ Moore, 211 U.S. 1 (1908), 514, 537 Frazier _v._ United States, 335 U.S. 497 (1948), 879 Frederickson _v._ Louisiana, 23 How. 445 (1860), 429 Freeborn _v._ The "Protector," 12 Wall. 700 (1872), 282 Freeborn _v._ Smith, 2 Wall. 160 (1865), 699 Freeman _v._ Hewit, 329 U.S. 249 (1946), 179, 204, 206 Freeman _v._ Howe, 24 How. 450 (1861), 524, 627, 628 French _v._ Barber Asphalt Paving Co., 181 U.S. 324 (1901), 972, 1059 French _v._ Hay, 22 Wall. 231 (1875), 629 French _v._ Weeks, 259 U.S. 326 (1922), 477 Frick _v._ Pennsylvania, 268 U.S. 473 (1925), 1042, 1045 Fries Case, 9 Fed. Cas. No. 5126 (1799), 640 Fries Case, 9 Fed. Cas. No. 5127 (1800), 640 Frisbie _v._ United States, 157 U.S. 160 (1895), 857 Frohwerk _v._ United States, 249 U.S. 204 (1919), 297, 774, 794 Frost _v._ Corporation Commission, 278 U.S. 515 (1929), 1145 Frost _v._ Railroad Commission, 271 U.S. 583 (1926), 1032 Frothingham _v._ Mellon, 262 U.S. 447 (1923), 114 Fuller, Ex parte, 262 U.S. 91 (1923), 827, 843 Funk Bros. Seed Co. _v._ Kalo Co., 333 U.S. 127 (1948), 272 G Gagnon _v._ United States, 193 U.S. 451 (1904), 526 Gaines _v._ Fuentes, 92 U.S. 10 (1876), 524, 619 Gaines _v._ Washington, 277 U.S. 81 (1928), 1098, 1130 Gallegos _v._ Nebraska, 342 U.S. 55 (1951), 1107 Galloway _v._ United States, 319 U.S. 372 (1943), 893, 897 Galpin _v._ Page, 18 Wall. 350 (1874), 659 Galveston Electric Co. _v._ Galveston, 258 U.S. 388 (1922), 1006, 1008 Galveston, H. & S.A. Ry. Co. _v._ Texas, 170 U.S. 226 (1898), 200, 567 Galveston, H. & S.A. Ry. Co. _v._ Texas, 210 U.S. 217 (1908), 202, 203, 204 Galveston Wharf Co. _v._ Galveston, 260 U.S. 473 (1923), 1063 Gambino _v._ United States, 275 U.S. 310 (1927), 831 Games _v._ Dunn, 14 Pet. 322 (1840), 896 Gange Lumber Co. _v._ Rowley, 326 U.S. 295 (1945), 1093 Gant _v._ Oklahoma City, 289 U.S. 98 (1933), 1026 Gardner _v._ Collector, 6 Wall. 499 (1868), 103 Garfield _v._ United States, 211 U.S. 249 (1908), 864 Garland, Ex parte, 4 Wall. 333 (1867), 316, 317, 409, 512, 527, 736 Garner _v._ Los Angeles Board, 341 U.S. 716 (1951), 801 Garnett, In re, 141 U.S. 1 (1891), 575, 577, 583 Garrison _v._ New York, 21 Wall. 196 (1875), 352 Gasoline Products Co. _v._ Champlin Refining Co., 283 U.S. 494 (1931), 892 Gasquet _v._ Fenner, 247 U.S. 16 (1918), 673 Gasquet _v._ Lapeyre, 242 U.S. 367 (1917), 313 Gassies _v._ Ballon, 6 Pet. 761 (1832), 255 Gayes _v._ New York, 332 U.S. 145 (1947), 1103 Gee Wah Lee _v._ United States, 25 F. (2d) 107 (1928), 893 Gee Wah Lee _v._ United States, 277 U.S. 608 (1928), 893 Geer _v._ Connecticut, 161 U.S. 519 (1896), 242, 245, 690, 1027 Gelfert _v._ National City Bank, 313 U.S. 221 (1941), 361 Gelpcke _v._ Dubuque, 1 Wall. 175 (1864), 331, 604, 605 Gemsco Inc. _v._ Walling, 324 U.S. 244 (1945), 157 General Investment Co. _v._ New York Central R. Co., 271 U.S. 228 (1926), 512 General Oil Co. _v._ Crain, 209 U.S. 211 (1908), 185 General Railway Signal Co. _v._ Virginia, 246 U.S. 500 (1918), 121 General Smith, The, 4 Wheat. 438 (1819), 574 General Trading Company _v._ State Tax Commission, 322 U.S. 335 (1944), 190 Genesee Chief, The, 12 How. 443 (1852), 577 Geofroy _v._ Riggs, 133 U.S. 258 (1890), 428, 429 Georgia _v._ Brailsford, 2 Dall. 402 (1792), 612 Georgia _v._ Chattanooga, 264 U.S. 472 (1924), 1069 Georgia _v._ Evans, 316 U.S. 159 (1942), 598 Georgia _v._ Pennsylvania R. Co., 324 U.S. 439 (1945), 544 Georgia _v._ Stanton, 6 Wall. 50 (1868), 543, 545, 548, 596 Georgia _v._ Tennessee Copper Co., 206 U.S. 230 (1907), 544, 598, 599 Georgia R. & Power Co. _v._ Decatur, 262 U.S. 432 (1923), 349 Georgia R. & Power Co. _v._ Railroad Comm., 262 U.S. 625 (1923), 1002, 1006 Georgia R. Co. _v._ Redwine, 342 U.S. 299 (1952), 351, 934 Gerling _v._ Baltimore & O.R. Co., 151 U.S. 673 (1894), 638 German Alliance Ins. Co. _v._ Hale, 219 U.S. 307 (1911), 1022 German Alliance Ins. Co. _v._ Lewis, 233 U.S. 389 (1914), 996, 1021, 1155 German Savings Loan Society _v._ Dormitzer, 192 U.S. 125 (1904), 662 Gibbes _v._ Zimmerman, 290 U.S. 326 (1933), 1020, 1035 Gibbons _v._ District of Columbia, 116 U.S. 404 (1886), 304 Gibbons _v._ Ogden, 9 Wheat 1 (1824), 118, 121, 122, 125, 151, 156, 161, 162, 166, 169, 174, 175, 176, 192, 215, 228, 246, 721, 723, 735 Gibbons _v._ United States, 8 Wall. 269 (1869), 586 Gibbs _v._ Burke, 337 U.S. 773 (1949), 1107, 1109 Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949), 782, 994 Gibson _v._ Chouteau, 13 Wall. 92 (1872), 702, 703 Gibson _v._ Lyon, 115 U.S. 439 (1885), 684 Gibson _v._ Mississippi, 162 U.S. 565 (1896), 329, 1169 Gibson _v._ United States, 166 U.S. 269 (1897), 128, 868 Gilbert _v._ Minnesota, 254 U.S. 325 (1920), 297, 794 Gilchrist _v._ Interborough Rapid Transit Co., 279 U.S. 159 (1929), 570, 631 Giles _v._ Harris, 189 U.S. 475 (1903), 544, 1164 Gilfillan _v._ Union Canal Co., 109 U.S. 401 (1883), 355 Gillespie _v._ Oklahoma, 257 U.S. 501 (1922), 735 Gilman _v._ Philadelphia, 3 Wall. 713 (1866), 127, 180 Giozza _v._ Tiernan, 148 U.S. 657 (1893), 971, 1149 Girouard _v._ United States, 328 U.S. 61 (1946), 257, 768 Gitlow _v._ New York, 268 U.S. 652 (1925), 752, 757, 775, 778, 798 Given _v._ Wright, 117 U.S. 648 (1886), 336 Givens _v._ Zerbst, 255 U.S. 11 (1921), 404 Gladson _v._ Minnesota, 166 U.S. 427 (1897), 221, 270, 1012 Glasgow _v._ Moyer, 225 U.S. 420 (1912), 314 Glasser _v._ United States, 315 U.S. 60 (1942), 885 Glenn _v._ Garth, 147 U.S. 360 (1893), 676, 677 Glidden _v._ Harrington, 189 U.S. 255 (1903), 1057, 1060 Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196 (1885), 192, 209, 231, 366 Go-Bart Importing Co. _v._ United States, 282 U.S. 344 (1931), 828 Goesaert _v._ Cleary, 335 U.S. 464 (1948), 1159 Goldey _v._ Morning News, 156 U.S. 518 (1895), 660, 1077 Goldman _v._ United States, 316 U.S. 129 (1942), 824 Goltra _v._ Weeks, 271 U.S. 536 (1926), 588, 589, 590 Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418 (1911), 516, 786, 792 Gompers _v._ United States, 233 U.S. 604 (1914), 521, 770, 878 Gong Lum _v._ Rice, 275 U.S. 78 (1927), 1162 Gonsalves _v._ Morse Dry Dock Co., 266 U.S. 171 (1924), 582 Goodrich _v._ Edwards, 255 U.S. 527 (1921), 1199 Goodrich _v._ Ferris, 214 U.S. 71 (1909), 1072, 1082, 1088 Gordon _v._ United States, 2 Wall. 561 (1865), 513 Gordon _v._ United States, 117 U.S. 697 decided (1864) reported (1886), 513, 534, 535, 550, 623 Gorieb _v._ Fox, 274 U.S. 603 (1927), 1029, 1157 Gorin _v._ United States, 312 U.S. 19 (1941), 883 Goto _v._ Lane, 265 U.S. 393 (1924), 314 Gould et al. _v._ United States, 328 U.S. 848 (1946), 1234 Gould et al. _v._ United States, 329 U.S. 820 (1946), 1234 Gouled _v._ United States, 255 U.S. 298 (1921), 824, 825 Governor of Georgia _v._ Madrazo, 1 Pet. 110 (1828), 929, 931 Graham _v._ Folsom, 200 U.S. 248 (1906), 356 Graham _v._ Goodcell, 282 U.S. 409 (1931), 858 Graham _v._ West Virginia, 224 U.S. 616 (1912), 328, 1098, 1133, 1135, 1137, 1161 Grand Lodge, F. & A.M. _v._ New Orleans, 166 U.S. 143 (1897), 342 Grand Trunk Western R. Co. _v._ Railroad Commission, 221 U.S. 400 (1911), 329 Granger Cases, 94 U.S. 113 (1877), 220, 981 Graniteville Mfg. Co. _v._ Query, 283 U.S. 376 (1931), 1044 Grannis _v._ Ordean, 234 U.S. 385 (1914), 1072, 1073, 1083 Grant _v._ United States, 227 U.S. 74 (1913), 827 Grant Smith-Porter Ship Co. _v._ Rohde, 257 U.S. 469 (1922), 574, 582 Grant Timber & Mfg. Co. _v._ Gray, 236 U.S. 133 (1915), 1091 Grapeshot, The, _v._ Wallerstein, 9 Wall. 129 (1870), 574 Graves _v._ Elliott, 307 U.S. 383 (1939), 1048 Graves _v._ Eubank, 205 Ala. 174 (1921), 1220 Graves _v._ Minnesota, 272 U.S. 425 (1926), 1024 Graves _v._ New York ex rel. O'Keefe, 306 U.S. 466 (1939), 106, 219, 916 Graves _v._ O'Keefe, 306 U.S. 466 (1939), 731 Graves _v._ Schmidlapp, 315 U.S. 657 (1942), 1046, 1049 Graves _v._ Texas Co., 298 U.S. 393 (1936), 731, 936 Great A. & P. Tea Co. _v._ Grosjean, 301 U.S. 412 (1937), 1055, 1148 Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment, 340 U.S. 147 (1950), 271, 272, 274 Great Lakes Co. _v._ Huffman, 319 U.S. 293 (1943), 553 Great Northern Ins. Co. _v._ Read, 322 U.S. 47 (1944), 587, 935, 936 Great Northern R. Co. _v._ Cahill, 253 U.S. 71 (1920), 1012 Great Northern R. Co. _v._ Minnesota, 278 U.S. 503 (1929), 201, 1053 Great Northern R. Co. _v._ Minnesota ex rel. Clara City, 246 U.S. 434 (1918), 345, 1014 Great Northern R. Co. _v._ Minnesota ex rel. Railroad & Warehouse Commission, 238 U.S. 340 (1915), 1012 Great Northern R. Co. _v._ Washington, 300 U.S. 154 (1937), 213 Great Southern Fire Proof Hotel Co. _v._ Jones, 193 U.S. 532 (1904), 331 Great Western Telegraph Co. _v._ Purdy, 162 U.S. 329 (1896), 654 Greeley _v._ Lowe, 155 U.S. 58 (1894), 895 Green, In re, 134 U.S. 377 (1890), 386 Green _v._ Biddle, 8 Wheat. 1 (1823), 369, 370 Green _v._ Chicago, B. & Q.R. Co., 205 U.S. 530 (1907), 1076, 1079 Green _v._ Frazier, 253 U.S. 233 (1920), 1037, 1063, 1064 Green _v._ Van Buskirk, 7 Wall. 139 (1869), 655 Green Bay & M. Canal Co. _v._ Patten Paper Co., 172 U.S. 58 (1898), 131 Greene, In re, 52 Fed. 104 (1892), 171 Greene _v._ Louisville & I.R. Co., 244 U.S. 499 (1917), 931 Greenough _v._ Tax Assessors, 331 U.S. 486 (1947), 1044 Greenwood _v._ Union Freight R. Co., 105 U.S. 13 (1882), 343, 344 Gregory, In re, 219 U.S. 210 (1911), 314 Greiner _v._ Lewellyn, 258 U.S. 384 (1922), 107 Grenada Lumber Co. _v._ Mississippi, 217 U.S. 433 (1910), 1017 Griffin _v._ Griffin, 327 U.S. 220 (1946), 671, 1074 Griffin _v._ McCoach, 313 U.S. 498 (1941), 680 Griffin _v._ Thompson, 2 How. 244 (1844), 326, 526 Griffin's Case, 11 Fed. Cas. No. 5815 (1869), 1173 Griffith _v._ Connecticut, 218 U.S. 563 (1910), 1021 Grimley, In re, 137 U.S. 147 (1890), 285 Gring _v._ Ives, 222 U.S. 365 (1912), 231 Groesbeck _v._ Duluth, S.S. & A.R. Co., 250 U.S. 607 (1919), 1000 Grosjean _v._ American Press Co., 297 U.S. 233 (1936), 792, 965, 981 Grossman, Ex parte, 267 U.S. 87 (1925), 408, 521 Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890), 656, 659, 662 Groves _v._ Slaughter, 15 Pet. 449 (1841), 162, 164 Grovey _v._ Townsend, 295 U.S. 45 (1935), 565, 1142, 1164, 1185 Grubb _v._ Public Utilities Commission, 281 U.S. 470 (1930), 631 Gruber, Ex parte, 269 U.S. 302 (1925), 572 Gryger _v._ Burke, 334 U.S. 728 (1948), 328, 1106, 1137, 1141 Guaranty Trust Co. _v._ United States, 304 U.S. 126 (1938), 439, 609, 610 Guaranty Trust Co. _v._ Virginia, 305 U.S. 19 (1938), 1054 Guaranty Trust Co. _v._ York, 326 U.S. 99 (1945), 608 Guessefeldt _v._ McGrath, 342 U.S. 308 (1952), 865 Guinn _v._ United States, 238 U.S. 347 (1915), 1164, 1183, 1184 Gulf, C. & S.F.R. Co. _v._ Ellis, 165 U.S. 150 (1897), 1167 Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124 (1928), 363, 364 Gully _v._ First National Bank, 299 U.S. 109 (1936), 567 Gumbel _v._ Pitkin, 124 U.S. 131 (1888), 512, 526 Gundling _v._ Chicago, 177 U.S. 183 (1900), 1024, 1157 Gunter _v._ Atlantic C.L.R. Co., 200 U.S. 273 (1906), 931 Gusik _v._ Schilder, 339 U.S. 977 (1950), 314 Gut _v._ Minnesota, 9 Wall. 35 (1870), 329 Guthrie Nat. Bank _v._ Guthrie, 173 U.S. 528 (1899), 893 Guy _v._ Baltimore, 100 U.S. 434 (1880), 185 Gwin _v._ Breedlove, 2 How. 29 (1844), 326 Gwin, White & Prince _v._ Henneford, 305 U.S. 434 (1939), 196, 204, 205, 219, 220 H Haas _v._ Henkel, 216 U.S. 462 (1910), 881 Haavik _v._ Alaska Packers' Association, 263 U.S. 510 (1924), 693, 863 Hadacheck _v._ Sebastian, 239 U.S. 394 (1915), 983, 1028, 1154 Haddock _v._ Haddock, 201 U.S. 562 (1906), 662, 664 Hagar _v._ Reclamation Dist. No. 108, 111 U.S. 701 (1884), 1040, 1057, 1058, 1070 Hagner _v._ United States, 285 U.S. 427 (1932), 881 Hagood _v._ Southern, 117 U.S. 52 (1886), 931, 932 Hague _v._ C.I.O., 307 U.S. 496 (1939), 785, 788, 808, 809, 968 Hairston _v._ Danville & W.R. Co., 208 U.S. 598 (1908), 1064, 1065, 1066 Hale _v._ Bimco Trading Co., 306 U.S. 375 (1939), 238 Hale _v._ Henkel, 201 U.S. 43 (1906), 824, 827, 844 Hale _v._ Iowa State Board of Assessment, 302 U.S. 95 (1937), 348 Hale _v._ Kentucky, 303 U.S. 613 (1938), 1098 Haley _v._ Ohio, 332 U.S. 596 (1948), 1104, 1118, 1121 Hall _v._ De Cuir, 95 U.S. 485 (1878), 218, 230, 1162 Hall _v._ Geiger-Jones Co., 242 U.S. 539 (1917), 235, 983, 1019 Hall _v._ Wisconsin, 103 U.S. 5 (1880), 341 Hallinger _v._ Davis, 146 U.S. 314 (1892), 1110 Halter _v._ Nebraska, 205 U.S. 34 (1907), 1024, 1154 Halvey _v._ Halvey, 330 U.S. 610 (1947), 671 Hamilton _v._ Brown, 161 U.S. 256 (1896), 1083 Hamilton _v._ Dillin, 21 Wall. 73 (1875), 280, 289, 404 Hamilton _v._ Kentucky Distilleries & Wine Co., 251 U.S. 146 (1919), 292, 564, 918 Hamilton _v._ Regents, 293 U.S. 245 (1934), 768, 985 Hamilton Mfg. Co. _v._ Massachusetts, 6 Wall. 632 (1868), 730 Hammer _v._ Dagenhart, 247 U.S. 251 (1918), 122, 166, 168, 170, 171, 172, 173, 917, 918 Hammond Packing Co. _v._ Arkansas, 212 U.S. 322 (1909), 345, 1122, 1166 Hammond Packing Co. _v._ Montana, 233 U.S. 331 (1914), 1149 Hampton, The, 5 Wall. 372 (1867), 296 Hampton _v._ McConnell, 3 Wheat. 234 (1818), 653, 654, 656, 657 Hampton & Co. _v._ United States, 276 U.S. 394 (1928), 73, 74, 77, 80, 112 Hanauer _v._ Doane, 12 Wall. 342 (1871), 640, 643 Hanauer _v._ Woodruff, 15 Wall. 439 (1873), 1174 Hancock _v._ Muskogee, 250 U.S. 454 (1919), 1059 Hancock National Bank _v._ Farnum, 176 U.S. 640 (1900), 660, 678 Hanford _v._ Davies, 163 U.S. 273 (1896), 329 Hanley _v._ Donoghue, 116 U.S. 1 (1885), 654, 674 Hanley _v._ Kansas City Southern R. Co., 187 U.S. 617 (1903), 122 Hannegan _v._ Esquire, Inc., 327 U.S. 146 (1946), 269, 804 Hannibal & St. L.R. Co. _v._ Husen, 95 U.S. 465 (1878), 222 Hannibal Bridge Co. _v._ United States, 221 U.S. 194 (1911), 867 Hannis Distilling Co. _v._ Baltimore, 216 U.S. 285 (1910), 1042, 1061 Hanover Insurance Co. _v._ Harding, 272 U.S. 494 (1926), 1144, 1150 Hanover Nat. Bank _v._ Moyses, 186 U.S. 181 (1902), 262, 264, 848 Hans _v._ Louisiana, 134 U.S. 1 (1890), 930 Hans Rees' Sons _v._ North Carolina, 283 U.S. 123 (1931), 209, 1054 Harding _v._ Harding, 198 U.S. 317 (1905), 656 Hardware Dealers Mut. F. Ins. Co. _v._ Glidden Co., 284 U.S. 151 (1931), 1089, 1166 Harisiades _v._ Shaughnessy, 342 U.S. 580 (1952), 261 Harkin _v._ Brundage, 276 U.S. 36 (1928), 627 Harkness _v._ Hyde, 98 U.S. 476 (1879), 1074 Harkrader _v._ Wadley, 172 U.S. 148 (1898), 627, 630, 634 Harman _v._ Chicago, 147 U.S. 396 (1893), 230 Harriman _v._ Interstate Commerce Comm., 211 U.S. 407 (1908), 84 Harris, Re, 221 U.S. 274 (1911), 843 Harris _v._ Balk, 198 U.S. 215 (1905), 674 Harris _v._ South Carolina, 338 U.S. 68 (1949), 1120, 1121 Harris _v._ United States, 331 U.S. 145 (1947), 828 Harrisburg, The, 119 U.S. 199 (1886), 575 Harrison _v._ St. Louis & S.F.R. Co., 232 U.S. 318 (1914), 638 Hart _v._ United States, 118 U.S. 62 (1886), 323, 324 Hartford Accident & Indemnity Co. _v._ Illinois ex rel. McLaughlin, 298 U.S. 155 (1936), 235 Hartford Acci. & Indem. Co. _v._ Nelson (N.O.) Mfg. Co., 291 U.S. 352 (1934), 1022 Hartford L. Ins. Co. _v._ Barber, 245 U.S. 146 (1917), 654 Hartford L. Ins. Co. _v._ Blincoe, 255 U.S. 129 (1921), 1092 Hartford L. Ins. Co. _v._ Ibs, 237 U.S. 662 (1915), 654 Hartford Steam Boiler Inspection & Ins. Co. _v._ Harrison, 301 U.S. 459 (1937), 1156 Hartzel _v._ United States, 322 U.S. 680 (1944), 794 Harvester Co. _v._ Dept. of Taxation, 322 U.S. 435 (1944), 1044 Harvester Co. _v._ Dept. of Treasury, 322 U.S. 340 (1944), 204 Hauenstein _v._ Lynham, 100 U.S. 483 (1880), 415 Hauge _v._ Chicago, 299 U.S. 387 (1937), 1018 Haupt _v._ United States, 330 U.S. 631 (1947), 641, 645 Havemeyer _v._ Iowa County, 3 Wall. 294 (1866), 331 Haver _v._ Yaker, 9 Wall. 32 (1870), 404, 418 Hawaii _v._ Mankichi, 190 U.S. 197 (1903), 703 Hawes _v._ Georgia, 258 U.S. 1 (1922), 1032, 1096 Hawes _v._ Oakland, 104 U.S. 450 (1881), 541 Hawk, Ex parte, 321 U.S. 114 (1944), 1125 Hawk _v._ Olson, 326 U.S. 271 (1945), 1100, 1102 Hawke _v._ Smith, 253 U.S. 221 (1920), 386, 713 Hawker _v._ New York, 170 U.S. 189 (1898), 328, 1024, 1096 Hawkins _v._ Barney, 5 Pet. 457 (1831), 355 Hawkins _v._ Bleakly, 243 U.S. 210 (1917), 989, 1094 Hawks _v._ Hamill, 288 U.S. 52 (1933), 934 Hawley _v._ Malden, 232 U.S. 1 (1914), 1044 Hawley _v._ Walker, 232 U.S. 718 (1914), 987 Hayburn's Case, 2 Dall. 409 (1792), 485, 512, 550, 558, 623 Hayes _v._ Missouri, 120 U.S. 68 (1887), 210, 1166 Hayman _v._ Galveston, 273 U.S. 414 (1927), 1024, 1155 Hays _v._ Pacific Mail S.S. Co., 17 How. 596 (1855), 210 Hays _v._ Seattle, 251 U.S. 233 (1920), 1070 Head _v._ Amoskeag Mfg. Co., 113 U.S. 9 (1885), 1066 Head Money Cases, 112 U.S. 580 (1884), 110, 111, 414 Heald _v._ District of Columbia, 259 U.S. 114 (1922), 304 Heath & M. Mfg. Co. _v._ Worst, 207 U.S. 338 (1907), 1019 Hebe Co. _v._ Shaw, 248 U.S. 297 (1919), 237, 1031 Heckers _v._ Fowler, 2 Wall. 123 (1864), 527 Heff, In re, 197 U.S. 488 (1905), 253 Hegeman Farms Corp. _v._ Baldwin, 293 U.S. 163 (1934), 245 Heim _v._ McCall, 239 U.S. 175 (1915), 971, 1158 Heine _v._ Levee Commissioners, 19 Wall. 655 (1874), 356 Heiner _v._ Donnan, 285 U.S. 312 (1932), 863 Heisler _v._ Thomas Colliery Co., 260 U.S. 245 (1922), 181, 1148 Helena Waterworks Co. _v._ Helena, 195 U.S. 383 (1904), 1009 Helis _v._ Ward, 308 U.S. 365 (1939), 848 Helson & Randolph _v._ Kentucky, 279 U.S. 245 (1929), 186, 195, 231, 968 Helvering _v._ Bruun, 309 U.S. 461 (1940), 1198 Helvering _v._ Bullard, 303 U.S. 297 (1938), 321 Helvering _v._ Davis, 301 U.S. 619 (1937), 116, 724, 863, 918 Helvering _v._ Gerhardt, 304 U.S. 405 (1938), 106, 108, 109 Helvering _v._ Gowran, 302 U.S. 238 (1937), 1195 Helvering _v._ Griffiths, 318 U.S. 371 (1943), 566, 1195 Helvering _v._ Horst, 311 U.S. 112 (1940), 1198 Helvering _v._ Independent L. Ins. Co., 292 U.S. 371 (1934), 1200 Helvering _v._ Lerner Stores Corp., 314 U.S. 463 (1941), 862 Helvering _v._ Mitchell, 303 U.S. 391 (1938), 840, 841, 863, 1197 Helvering _v._ Mountain Producers Corp., 303 U.S. 376 (1938), 108 Helvering _v._ National Grocery Co., 304 U.S. 282 (1938), 863, 921, 1197 Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940), 863, 921, 1196 Helvering _v._ Powers, 293 U.S. 214 (1934), 107 Helvering _v._ Winmill, 305 U.S. 79 (1938), 1200 Helwig _v._ United States, 188 U.S. 605 (1903), 111 Hemphill _v._ Orloff, 277 U.S. 537 (1928), 689 Henderson _v._ New York, 92 U.S. 259 (1876), 122, 193, 216 Henderson _v._ United States, 339 U.S. 816 (1950), 1162 Henderson Co. _v._ Thompson, 300 U.S. 258 (1937), 1026 Henderson's Distilled Spirits, 14 Wall. 44 (1872), 897 Hendersonville Light & Power Co. _v._ Blue Ridge Interurban R. Co., 243 U.S. 563 (1917), 1065 Hendrick _v._ Maryland, 235 U.S. 610 (1915), 211, 212, 227, 540 Hendry (C.J.) Co. _v._ Moore, 318 U.S. 133 (1943), 575, 576 Hendy _v._ Miners' Iron Works, 127 U.S. 370 (1888), 273 Henkels _v._ Sutherland, 271 U.S. 298 (1926), 872 Henley _v._ Myers, 215 U.S. 373 (1910), 355 Henneford _v._ Silas Mason Co., 300 U.S. 577 (1937), 189 Hennen, Ex parte, 13 Pet. 225 (1839), 453, 457 Hennen, Ex parte, 13 Pet. 230 (1839), 452 Hennington _v._ Georgia, 163 U.S. 299 (1896), 222 Henry Ford & Son _v._ Little Falls Fibre Co., 280 U.S. 369 (1930), 128 Hepburn _v._ Ellzey, 2 Cr. 445 (1805), 302, 599 Hepburn _v._ Griswold, 8 Wall. 603 (1870), 118, 287, 362 Hepner _v._ United States, 213 U.S. 103 (1909), 878 Herndon _v._ Chicago, R.I. & P.R. Co., 218 U.S. 135 (1910), 638 Herndon _v._ Lowry, 301 U.S. 242 (1937), 563, 777, 806 Herron _v._ Southern P. Co., 283 U.S. 91 (1931), 1091 Hess _v._ Pawloski, 274 U.S. 352 (1927), 661, 691, 1074 Hester _v._ United States, 265 U.S. 57 (1924), 824 Hewitt Realty Co. _v._ Commissioner of Internal Rev., 76 F. (2d) 880 (1935), 1198 Heyman _v._ Hays, 236 U.S. 178 (1915), 187, 195 Hiatt _v._ Brown, 339 U.S. 103 (1950), 286, 551 Hibben _v._ Smith, 191 U.S. 310 (1903), 972, 1059 Hibernia Sav. & L. Soc. _v._ San Francisco, 200 U.S. 310 (1906), 730 Hicklin _v._ Coney, 290 U.S. 169 (1933), 212, 227, 1155 Hickman _v._ Jones, 9 Wall. 197 (1870), 728 Higginbotham _v._ Baton Rouge, 306 U.S. 535 (1939), 341 Highland _v._ Russell Car & Snow Plow Co., 279 U.S. 253 (1929), 855 Highland Farms Dairy, Inc. _v._ Agnew, 300 U.S. 608 (1937), 237, 705 Hill _v._ Florida, 325 U.S. 538 (1945), 252, 724 Hill _v._ Martin, 296 U.S. 393 (1935), 524 Hill _v._ Merchants' Mut. Ins. Co., 134 U.S. 515 (1890), 355 Hill _v._ Texas, 316 U.S. 400 (1942), 1168 Hill _v._ United States, 9 How. 386 (1850), 585 Hill _v._ United States ex rel. Weiner, 300 U.S. 105 (1937), 853 Hill _v._ Wallace, 259 U.S. 44 (1922), 111, 621, 918 Hillsborough _v._ Cromwell, 326 U.S. 620 (1946), 1144, 1152 Hilton _v._ Guyot, 159 U.S. 113 (1895), 685 Hinderlider _v._ La Plata Co., 304 U.S. 92 (1938), 367, 370 Hine, The, _v._ Trevor, 4 Wall. 555 (1867), 579 Hines _v._ Davidowitz et al., 312 U.S. 52 (1941), 73, 259, 260, 417 Hines _v._ Lowrey, 305 U.S. 85 (1938), 857 Hinson _v._ Lott, 8 Wall. 148 (1869), 189 Hipp _v._ Babin, 19 How. 271 (1857), 895 Hirabayashi _v._ United States, 320 U.S. 81 (1943), 76, 290, 297, 395, 1158 Hirota _v._ MacArthur, 338 U.S. 197 (1948), 317 Hodge _v._ Muscatine County, 196 U.S. 276 (1905), 1057 Hodge Drive-It-Yourself Co. _v._ Cincinnati, 284 U.S. 335 (1932), 1033, 1155 Hodges _v._ Easton, 106 U.S. 408 (1883), 897 Hodges _v._ United States, 203 U.S. 1 (1906), 949, 952 Hodgson & Thompson _v._ Bowerbank, 5 Cr. 303 (1809), 611, 623 Hoeper _v._ Tax Commissioner, 284 U.S. 206 (1931), 1039 Hoffman _v._ United States, 341 U.S. 479 (1951), 842 Hoke _v._ Henderson, 15 N.C. 1 (4 Dev. 1), (1833), 341 Hoke _v._ United States, 227 U.S. 308 (1913), 170, 919 Holden _v._ Hardy, 169 U.S. 366 (1898), 971, 977, 986, 1112, 1158 Holden _v._ Joy, 17 Wall. 211 (1872), 432 Holden _v._ Minnesota, 137 U.S. 483 (1890), 328 Holland _v._ Challen, 110 U.S. 15 (1884), 895 Hollingsworth _v._ Virginia, 3 Dall. 378 (1798), 105, 712 Hollister _v._ Benedict & B. Mfg. Co., 113 U.S. 59 (1885), 275, 867 Holmes _v._ Conway, 241 U.S. 624 (1916), 1089 Holmes _v._ Goldsmith, 147 U.S. 150 (1893), 619 Holmes _v._ Hurst, 174 U.S. 82 (1899), 275 Holmes _v._ Jennison, 14 Pet. 540 (1840), 73, 325, 367, 433 Holmgren _v._ United States, 217 U.S. 509 (1910), 258, 737 Holt _v._ United States, 218 U.S. 245 (1910), 843, 1124 Holyoke Water Power Co. _v._ Lyman, 15 Wall. 500 (1873), 344 Home Bldg. & Loan Asso. _v._ Blaisdell, 290 U.S. 398 (1934), 280, 332, 359, 360, 362, 564 Home Ins. Co. _v._ Dick, 281 U.S. 397 (1930), 1093 Home Ins. Co. _v._ Morse, 20 Wall. 445 (1874), 638 Home Ins. Co. _v._ New York, 134 U.S. 594 (1890), 730 Home of Friendless _v._ Rouse, 8 Wall. 430 (1869), 339, 342, 343, 351 Home Telephone & Telegraph Co. _v._ Los Angeles, 227 U.S. 278 (1913), 934 Home Telephone Co. _v._ Los Angeles, 211 U.S. 265 (1908), 349, 352 Honeyman _v._ Hanan, 302 U.S. 375 (1937), 1089 Honeyman _v._ Jacobs, 306 U.S. 549 (1939), 361 Hood _v._ Du Mond, 336 U.S. 525 (1949), 245 Hood _v._ McGehee, 237 U.S. 611 (1915), 673 Hood, H.P. & Sons _v._ United States, 307 U.S. 588 (1939), 160 Hooe _v._ Jamieson, 166 U.S. 395 (1897), 302 Hooe _v._ United States, 218 U.S. 322 (1910), 495 Hooe _v._ Werner, 166 U.S. 399 (1897), 302 Hooper _v._ California, 155 U.S. 648 (1895), 1021 Hoopeston Canning Co. _v._ Cullen, 318 U.S. 313 (1943), 1022, 1155 Hooven & Allison Co. _v._ Evatt, 324 U.S. 652 (1945), 178, 219, 363, 364 Hope Gas Case, 320 U.S. 591, 606 (1944), 1007 Hope Natural Gas Co. _v._ Hall, 274 U.S. 284 (1927), 181 Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911), 930, 931, 936 Hopkins Federal Savings & Loan Asso. _v._ Cleary, 296 U.S. 315 (1935), 920 Hopkirk _v._ Bell, 3 Cr. 454 (1806), 415 Hopt _v._ Utah, 110 U.S. 574 (1884), 317, 847 Horn _v._ Lockhart, 17 Wall. 570 (1873), 728 Hornbuckle _v._ Toombs, 18 Wall. 648 (1874), 704 Horstmann Co. _v._ United States, 257 U.S. 138 (1921), 869 Hotchkiss _v._ Greenwood, 11 How. 248 (1850), 272 Hotel & Restaurant Employees' Alliance _v._ Board, 315 U.S. 437 (1942), 781 Houck _v._ Little River Drainage Dist., 239 U.S. 254 (1915), 1041 House _v._ Mayes, 219 U.S. 270 (1911), 1019 House _v._ Mayo, 324 U.S. 42 (1945), 1101, 1102 Houston _v._ Moore, 5 Wheat. 1 (1820), 299, 300, 635, 636 Houston _v._ Ormes, 252 U.S. 469 (1920), 932 Houston, E. & W.T.R. Co. _v._ United States, 234 U.S. 342 (1914), 135, 219 Houston & Texas Central R.R. Co. _v._ Texas, 177 U.S. 66 (1900), 326, 330 Hovey _v._ Elliott, 167 U.S. 409 (1897), 848 Howard _v._ Fleming, 191 U.S. 126 (1903), 1094 Howard _v._ Gipsy Oil Co., 247 U.S. 503 (1918), 734 Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908), 141, 165, 563, 917 Howard _v._ Kentucky, 200 U.S. 164 (1906), 1127 Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880), 184, 185, 191 Hoxie _v._ New York, N.H. & H.R. Co., 82 Conn. 352 (1909), 637 Hubert _v._ New Orleans, 215 U.S. 170 (1909), 330 Hudson _v._ Guestier, 4 Cr. 293 (1808), 575 Hudson County Water Co. _v._ McCarter, 209 U.S. 349, (1908), 243, 358, 690, 983, 1026 Hughes _v._ Edwards, 9 Wheat. 489 (1824), 416 Hughes _v._ Fetter, 341 U.S. 609 (1951), 657, 677 Hughes _v._ Gault, 271 U.S. 142 (1926), 881 Hughes _v._ Superior Court of California, 339 U.S. 460 (1950), 782 Hughes Bros. Timber Co. _v._ Minnesota, 272 U.S. 469 (1926), 186 Hull _v._ Burr, 234 U.S. 712 (1914), 567 Hull, Ex parte, 312 U.S. 546 (1941), 1137 Hump Hairpin Mfg. Co. _v._ Emerson, 258 U.S. 290 (1922), 187, 197 Humphrey _v._ Pegues, 16 Wall. 244 (1873), 342 Humphrey _v._ United States, 295 U.S. 602 (1935), 458, 460 Hunt _v._ Palao, 4 How. 589 (1846), 699 Hunter _v._ Pittsburgh, 207 U.S. 161 (1907), 340, 1036 Hunter _v._ Wood, 209 U.S. 205 (1908), 633 Huntington _v._ Attrill, 146 U.S. 657 (1892), 658, 674 Huntington _v._ Texas, 16 Wall. 402 (1873), 728 Hurd _v._ Hodge, 334 U.S. 24 (1948), 854, 1161 Hurley _v._ Kincaid, 285 U.S. 95 (1932), 872 Hurtado _v._ California, 110 U.S. 516 (1884), 752, 845, 973, 1070, 1071, 1098, 1109 Huse _v._ Glover, 119 U.S. 543 (1886), 230, 366, 699 Husty _v._ United States, 282 U.S. 694 (1931), 830 Hutchings _v._ Low, 15 Wall. 77 (1873), 702 Hutchinson _v._ Valdosta, 227 U.S. 303 (1913), 1030 Hutchinson Ice Cream Co. _v._ Iowa, 242 U.S. 153 (1916), 1031 Hyatt _v._ New York ex rel. Corkran, 188 U.S. 691 (1903), 695 Hyde _v._ United States, 225 U.S. 347 (1912), 881 Hygrade Provision Co. _v._ Sherman, 266 U.S. 497 (1925), 237, 934 Hylton _v._ United States, 3 Dall. 171 (1796), 318, 558 Hysler _v._ Florida, 315 U.S. 411 (1942), 1125 I Ickes _v._ Fox, 300 U.S. 82 (1937), 590 Illinois _v._ Economy Power Light Co., 234 U.S. 497 (1914), 229 Illinois Central R. Co. _v._ Behrens, 233 U.S. 473 (1914), 141 Illinois Central R. Co. _v._ Bosworth, 133 U.S. 92 (1890), 408, 645 Illinois Central R. Co. _v._ Decatur, 147 U.S. 190 (1893), 343 Illinois Central R. Co. _v._ Illinois, 146 U.S. 387 (1892), 221, 350, 698 Illinois C.R. Co. _v._ Illinois ex rel. Butler, 163 U.S. 142 (1896), 270 Illinois Central R. Co. _v._ McKendree, 203 U.S. 514 (1906), 122, 168 Illinois Cent. R. Co. _v._ Minnesota, 309 U.S. 157 (1940), 203, 204, 1053, 1148 Illinois Central R. Co. _v._ Peery, 242 U.S. 292 (1916), 141 Illinois C.R. Co. _v._ Public Utilities Commission, 245 U.S. 493 (1918), 219 Illinois ex rel. McCollum _v._ Board of Education, 333 U.S. 203 (1948), 542 Illinois Gas Co. _v._ Public Service Co., 314 U.S. 498 (1942), 219, 251 Illinois Natural Gas Co. _v._ Central Pub. Serv. Co., 314 U.S. 498 (1942), 138 Independent Warehouses Inc. _v._ Scheele, 331 U.S. 70 (1947), 185, 1148 Indian Motorcycle Co. _v._ United States, 283 U.S. 570 (1931), 106 Indian Territory Illuminating Oil Co. _v._ Oklahoma, 240 U.S. 522 (1916), 735 Indiana ex rel. Anderson _v._ Brand Trustee, 303 U.S. 95 (1938), 341, 570 Indianapolis, City of, _v._ Chase National Bank, 314 U.S. 63 (1941), 603 Indianapolis Brewing Co. _v._ Liquor Commission, 305 U.S. 391 (1939), 1232 Industrial Commn. _v._ McCartin, 330 U.S. 622 (1947), 682 Ingels _v._ Morf, 300 U.S. 290 (1937), 212 Ingenohl _v._ Olsen, 273 U.S. 541 (1927), 685 Inland Empire Council _v._ Millis, 325 U.S. 697 (1945), 850 Inman Steamship Co. _v._ Tinker, 94 U.S. 238 (1877), 366 Innes _v._ Tobin, 240 U.S. 127 (1916), 694, 695 Insurance Co. _v._ New Orleans, Fed. Cas. No. 7,052 (1870), 965 Intermountain Rate Cases (United States _v._ Atchison, T. & S.P.R. Co.) 234 U.S. 476 (1914), 137 International Bridge Co. _v._ New York, 254 U.S. 126 (1920), 1010 International Brotherhood _v._ Western U. Tel. Co., 46 F. (2d) 736 (1931), 953 International Brotherhood _v._ Western U. Tel. Co., 284 U.S. 630 (1931), 953 International Harvester Co. _v._ Evatt, 329 U.S. 416 (1947), 203 International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914), 234, 660, 1079 International Harvester Co. _v._ Missouri, 234 U.S. 199 (1914), 1017 International Milling Co. _v._ Columbia T. Co., 292 U.S. 511 (1934), 234, 1100 International Paper Co. _v._ Massachusetts, 246 U.S. 135 (1918), 196, 1051 International Paper Co. _v._ United States, 282 U.S. 399 (1931), 867 International Postal Supply Co. _v._ Bruce, 194 U.S. 601 (1904), 590 International Shoe Co. _v._ Pinkus, 278 U.S. 261 (1929), 265 International Shoe Co. _v._ Shartel, 279 U.S. 429 (1929), 203 International Shoe Co. _v._ Washington, 326 U.S. 310 (1945), 1075, 1078, 1079 International Text Book Co. _v._ Pigg, 217 U.S. 91 (1910), 120 International Union, Etc. _v._ Tennessee Copper Co., 31 F. Supp. 1015 (1940), 1133 Interstate Amusement Co. _v._ Albert, 239 U.S. 560 (1916), 234 Interstate Busses Corp. _v._ Blodgett, 276 U.S. 245 (1928), 212 Interstate Busses Corp. _v._ Holyoke Street R. Co., 273 U.S. 45 (1927), 228 Interstate Commerce Com. _v._ Alabama Midland R. Co., 168 U.S. 144 (1897), 134 Interstate Commerce Commission _v._ Baird, 194 U.S. 25 (1904), 827 Interstate Commerce Commission _v._ Brimson, 154 U.S. 447 (1894), 84, 134, 514, 521, 550, 847, 893 Interstate Commerce Commission _v._ Goodrich Transit Co., 224 U.S. 194 (1912), 76, 137 Interstate Commerce Commission _v._ Illinois C.R. Co., 215 U.S. 452 (1910), 1001, 1003 Interstate Commerce Comn. _v._ Louisville & N.R. Co., 227 U.S. 88 (1913), 77 Interstate Commerce Commission _v._ Union Pacific R. Co., 222 U.S. 541 (1912), 1002 Interstate Commerce Commission _v._ United States ex rel. Humboldt S.S. Co., 224 U.S. 474 (1912), 703 Interstate Natural Gas Co. _v._ Federal Power Com., 331 U.S. 682 (1947), 251 Interstate Oil Pipe Line Co. _v._ Stone, 337 U.S. 662 (1949), 203, 208 Interstate Transit _v._ Lindsey, 283 U.S. 183 (1931), 195, 212 Iowa C.R. Co. _v._ Iowa, 160 U.S. 389 (1896), 1089 Iron Cliffs Co. _v._ Negaunee Iron Co., 197 U.S. 463 (1905), 1072 Irvine _v._ Marshall, 20 How. 558 (1858), 702, 703 Irving Trust Co. _v._ Day, 314 U.S. 556 (1942), 1034 Irwin _v._ Wright, 258 U.S. 219 (1922), 732 Isbrandtsen-Moller Co. _v._ United States, 300 U.S. 139 (1937), 860 J Jack _v._ Kansas, 199 U.S. 372 (1905), 1112 Jackson _v._ Lamphire, 3 Pet. 280 (1830), 355, 358 Jackson _v._ Roby, 109 U.S. 440 (1883), 78 Jackson _v._ Steamboat Magnolia, 20 How. 296 (1858), 578 Jackson _v._ Twentyman, 2 Pet. 136 (1829), 611 Jackson _v._ United States, 230 U.S. 1 (1913), 128 Jackson, Ex parte, 96 U.S. 727 (1878), 268, 824 Jacob _v._ Roberts, 223 U.S. 261 (1912), 1084 Jacobs _v._ Marks, 182 U.S. 583 (1901), 656 Jacobs _v._ United States, 290 U.S. 13 (1933), 869, 871, 872 Jacobson _v._ Massachusetts, 197 U.S. 11 (1905), 60, 564, 984, 1029 Jaehne _v._ New York, 128 U.S. 189 (1888), 327 James _v._ Appel, 192 U.S. 129 (1904), 1140 James _v._ Bowman, 190 U.S. 127 (1903), 1186 James _v._ Campbell, 104 U.S. 356 (1882), 275, 867 James _v._ Dravo Contracting Co., 302 U.S. 134 (1937), 198, 305, 307, 369, 730, 731, 1051 James-Dickinson Farm Mortg. Co. _v._ Harry, 273 U.S. 119 (1927), 1094 James Stewart & Co. _v._ Sadrakula, 309 U.S. 94 (1940), 305 Jamison _v._ Texas, 318 U.S. 413 (1943), 786 Janney _v._ Columbian Ins. Co., 10 Wheat. 411 (1825), 574, 579 Japanese Immigrant Case, 189 U.S. 86 (1903), 259 Jaster _v._ Currie, 198 U.S. 144 (1905), 659 Jatros _v._ Bowles, 143 F. (2d) 453 (1944), 1234 Jefferson Branch Bank _v._ Skelly, 1 Bl. 436 (1862), 330 Jefferson City Gaslight Co. _v._ Clark, 95 U.S. 644 (1877), 893 Jennings _v._ Carson, 4 Cr. 2 (1807), 575 Jennings _v._ Illinois, 343 U.S. 104 (1952), 1121 Jensen _v._ Continental Life Ins. Co., 28 F. (2d) 545 (1928), 894 Jensen _v._ Continental Life Ins. Co., 279 U.S. 842 (1929), 894 Jerome _v._ United States, 318 U.S. 101 (1943), 841 Johannessen _v._ United States, 225 U.S. 227 (1912), 257, 258, 317 John _v._ Paullin, 231 U.S. 583 (1913), 699 John Hancock Mut. Life Ins. Co. _v._ Yates, 299 U.S. 178 (1936), 677 Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388 (1886), 312, 323, 1089 Johnson _v._ Eisentrager, 339 U.S. 763 (1950), 404, 846, 851 Johnson _v._ Gearlds, 234 U.S. 422 (1914), 253 Johnson _v._ Lankford, 245 U.S. 541 (1918), 935 Johnson _v._ Maryland, 254 U.S. 51 (1920), 270, 724, 725 Johnson _v._ Muelberger, 341 U.S. 581 (1951), 671 Johnson _v._ New York Life Ins. Co., 187 U.S. 491 (1903), 676 Johnson _v._ Sayre, 158 U.S. 109 (1895), 838, 847 Johnson _v._ United States, 318 U.S. 189 (1943), 843 Johnson _v._ United States, 333 U.S. 10 (1948), 824, 828 Johnson _v._ Yellow Cab Co., 321 U.S. 383 (1944), 305 Johnson _v._ Zerbst, 304 U.S. 458 (1938), 885 Johnson Oil Ref. Co. _v._ Oklahoma ex rel. Mitchell, 290 U.S. 158 (1933), 1042, 1053 Johnson Steel Str. Rail Co. _v._ Wharton, 152 U.S. 252 (1894), 620 Jones _v._ Buffalo Creek Coal & Coke Co., 245 U.S. 328 (1917), 849 Jones _v._ League, 18 How. 76 (1855), 601 Jones _v._ Meehan, 175 U.S. 1 (1899), 433 Jones _v._ Opelika, 316 U.S. 584 (1942), 767 Jones _v._ Opelika, 319 U.S. 103 (1943), 767, 792 Jones _v._ Portland, 245 U.S. 217 (1917), 1037 Jones _v._ Prairie Oil & Gas Co., 273 U.S. 195 (1927), 1082 Jones _v._ Union Guano Co., 264 U.S. 171 (1924), 1090 Jones _v._ United States, 137 U.S. 202 (1890), 610, 619, 881 Jones _v._ Van Zandt, 5 How. 215 (1847), 696 Jordan _v._ Massachusetts, 225 U.S. 167 (1912), 1089, 1096, 1098, 1110, 1131 Joseph _v._ Carter & Weekes Stevedoring Co., 330 U.S. 422 (1947), 206 Joslin Mfg. Co. _v._ Providence, 262 U.S. 668 (1923), 1064, 1067, 1069 Jourdan _v._ Barrett, 4 How. 169 (1846), 702 Joy _v._ St. Louis, 201 U.S. 332 (1906), 700 Juilliard _v._ Greenman (Legal Tender Cases), 12 Wall. 457 (1871), 118, 267, 310, 362, 563 Juilliard _v._ Greenman (Legal Tender Cases), 110 U.S. 421 (1884), 73, 166, 266, 310 Julian _v._ Central Trust Co., 193 U.S. 93 (1904), 628, 629 Jurney _v._ MacCracken, 294 U.S. 125 (1935), 85, 86 Just _v._ Chambers, 312 U.S. 383 (1941), 575, 579 Justices of the Supreme Court _v._ United States ex rel. Murray, 9 Wall. 274 (1870), 892, 893, 897 K Kahn _v._ Anderson 255 U.S. 1 (1921), 847 Kalb _v._ Feuerstein, 308 U.S. 433 (1940), 265 Kalem Co. _v._ Harper Bros., 222 U.S. 55 (1911), 275 Kane _v._ New Jersey, 242 U.S. 160 (1916), 212, 227, 661 Kansas _v._ Colorado, 206 U.S. 46 (1907), 71, 73, 379, 592, 593, 920 Kansas _v._ United States, 204 U.S. 331 (1907), 587 Kansas City, M. & B.R. Co. _v._ Stiles, 242 U.S. 111 (1916), 197, 1051 Kansas City Ry. _v._ Kansas, 240 U.S. 227 (1916), 197, 1051 Kansas City Southern R. Co. _v._ Anderson, 233 U.S. 325 (1914), 1015 Kansas City Southern R. Co. _v._ Kaw Valley Drainage District, 233 U.S. 75 (1914), 219, 224 Kansas City Southern R. Co. _v._ Road Improv. Dist., 256 U.S. 658 (1921), 1153 Kansas City Southern R. Co. _v._ Road Improv. Dist., 266 U.S. 379 (1924), 1041 Kansas City Structural Steel Co. _v._ Arkansas, 269 U.S. 148 (1925), 121 Kansas Indians, The (Blue Jacket _v._ Johnson County), 5 Wall. 737 (1867), 432, 735 Karem _v._ United States, 121 F. 250 (1903), 1186 Kauffman _v._ Wooters, 138 U.S. 285 (1891), 1090 Kaukauna Water Power Co. _v._ Green Bay & M. Canal Co., 142 U.S. 254 (1891), 131 Kawakita _v._ United States, 343 U.S. 717 (1952), 642, 643 Kawananakoa _v._ Polyblank, 205 U.S. 349 (1907), 586 Kay _v._ United States, 303 U.S. 1 (1938), 883 Kearney, Ex parte, 7 Wheat. 38 (1822), 314 Keefe _v._ Clark, 322 U.S. 393 (1944), 349 Keeney _v._ New York, 222 U.S. 525 (1912), 1037, 1149 Keerl _v._ Montana, 213 U.S. 135 (1909), 1135 Kehrer _v._ Stewart, 197 U.S. 60 (1905), 184 Keifer & Keifer _v._ Reconstruction Finance Corp. & Regional Agricultural Credit Corp., 306 U.S. 381 (1939), 590 Keim _v._ United States, 177 U.S. 290 (1900), 546 Keith _v._ Clark, 97 U.S. 454 (1878), 728 Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923), 304, 535, 536, 537, 623 Keller _v._ United States, 213 U.S. 138 (1909), 122, 261, 917 Kelley _v._ Rhoads, 188 U.S. 1 (1903), 120, 186 Kelly _v._ Pittsburgh, 104 U.S. 78 (1881), 1037 Kelly _v._ Washington ex rel. Foss Co., 302 U.S. 1 (1937), 223, 230, 251 Kemmler, Ex parte, 136 U.S. 436 (1890), 971, 1134 Kendall _v._ United States ex rel. Stokes, 12 Pet. 524 (1838), 303, 479, 501, 522, 546 Kendall _v._ Winsor, 21 How. 322 (1859), 271 Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946), 932, 935, 936 Kennedy _v._ Becker, 241 U.S. 556 (1916), 701 Kenney _v._ Supreme Lodge, 252 U.S. 411 (1920), 657 Kennon _v._ Gilmer, 131 U.S. 22 (1889), 893 Kenosha _v._ Lamson, 9 Wall. 477 (1870), 331 Kentucky _v._ Dennison, 24 How. 66 (1861), 512, 612, 694, 695, 738 Kentucky _v._ Indiana, 281 U.S. 163 (1930), 593 Kentucky _v._ Powers, 201 U.S. 1 (1906), 620 Kentucky Finance Corp. _v._ Paramount Auto Exch. Corp., 262 U.S. 544 (1923), 981, 1144, 1167 Kentucky Union Co. _v._ Kentucky, 219 U.S. 140 (1911), 327, 1092, 1152 Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937), 172, 219, 859, 919 Kenward _v._ "Admiral Peoples," The. _See_ "Admiral Peoples," The. Keokee Consol. Coke Co. _v._ Taylor, 234 U.S. 224 (1914), 987, 1158 Keokuk & Hamilton Bridge Co. _v._ United States, 260 U.S. 125 (1922), 586 Keokuk Northern Line Packet Co. _v._ Keokuk, 95 U.S. 80 (1877), 366 Kepner _v._ United States, 195 U.S. 100 (1904), 839 Ker _v._ Illinois, 119 U.S. 436 (1886), 696 Kerr _v._ Devisees of Moon, 9 Wheat. 565 (1824), 673 Kersh Lake Drainage Dist. _v._ Johnson, 309 U.S. 485 (1940), 656 Keystone Mfg. Co. _v._ Adams, 151 U.S. 139 (1894), 272 Kidd _v._ Pearson, 128 U.S. 1 (1888), 120, 122, 239, 1032 Kidd, D. & P. Co. _v._ Musselman Grocer Co., 217 U.S. 461 (1910), 1018 Kiernan _v._ Portland, 223 U.S. 151 (1912), 705 Kilbourn _v._ Thompson, 103 U.S. 168 (1881), 83, 84, 85, 99, 100 Killian _v._ Ebbinghaus, 110 U.S. 568 (1884), 895 Kimball Laundry Co. _v._ United States, 338 U.S. 1 (1949), 298, 870, 871 Kimmish _v._ Ball, 129 U.S. 217 (1889), 236 King _v._ Cross, 175 U.S. 396 (1899), 674 King _v._ Mullins, 171 U.S. 404 (1898), 1062 King _v._ Order of United Commercial Travelers, 333 U.S. 153 (1948), 607 Kirby _v._ United States, 174 U.S. 47 (1899), 884 Kirschbaum _v._ Walling, 316 U.S. 517 (1942), 157 Kirtland _v._ Hotchkiss, 100 U.S. 491 (1879), 693, 971, 1044 Klaxon Co. _v._ Stentor, 313 U.S. 487 (1941), 677 Klein, In re, 1 How. 277 (1843), 264 Kline _v._ Burke Construction Co., 260 U.S. 226 (1922), 512, 620, 623, 628 Klinger _v._ Missouri, 13 Wall. 257 (1872), 327 Knapp _v._ Morss, 150 U.S. 221 (1893), 273 Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900), 574, 579 Knauer _v._ United States, 328 U.S. 654 (1946), 257, 258 Knauff _v._ Shaughnessy, 338 U.S. 537 (1950), 260 Kneedler _v._ Lane, 45 Pa. 238 (1863), 285 Knickerbocker Ice Co. _v._ Stewart, 253 U.S. 149 (1920), 311, 580, 583 Knight _v._ United Land Asso., 142 U.S. 161 (1891), 698 Knights of Pythias _v._ Meyer, 265 U.S. 30 (1924), 685 Knote _v._ United States, 95 U.S. 149 (1877), 323, 324, 411, 645 Knowlton _v._ Moore, 178 U.S. 41 (1900), 110, 320, 1191 Knox _v._ Greenleaf, 4 Dall. 360 (1802), 601 Knox _v._ Lee, 12 Wall. 457 (1871), 73, 266, 287, 856 Knoxville _v._ Water Company, 212 U.S. 1 (1909), 1002, 1007 Knoxville Iron Co. _v._ Harbison, 183 U.S. 13 (1901), 987, 1158 Knoxville Water Co. _v._ Knoxville, 200 U.S. 22 (1906), 349 Koehler _v._ United States, 342 U.S. 852 (1951), 883, 1176 Koenig _v._ Flynn, 285 U.S. 375 (1932), 93 Kohl _v._ United States, 91 U.S. 367 (1876), 268, 308, 865 Kohn _v._ Central Distributing Co., 306 U.S. 531 (1939), 524 Kollock, In re, 165 U.S. 526 (1897), 76, 111 Korematsu _v._ United States, 323 U.S. 214 (1944), 76, 297, 395 Korn _v._ Mutual Assur. Soc, 6 Cr. 192 (1810), 302 Koshland _v._ Helvering, 298 U.S. 441 (1936), 1195 Kotch _v._ Pilot Comm'rs., 330 U.S. 552 (1947), 1157 Kovacs _v._ Cooper, 336 U.S. 77 (1949), 563, 564, 768, 785, 791 Kraus & Bros. _v._ United States, 327 U.S. 614 (1946), 82, 881 Kreiger _v._ Kreiger, 334 U.S. 555 (1948), 667, 668 Kring _v._ Missouri, 107 U.S. 221 (1883), 328 Krippendorf _v._ Hyde, 110 U.S. 276 (1884), 627 Kryger _v._ Wilson, 242 U.S. 171 (1916), 675, 681 Kuehner _v._ Irving Trust Co., 299 U.S. 445 (1937), 858 Kuhn _v._ Fairmont Coal Co., 215 U.S. 349 (1910), 604, 605 Kunz _v._ New York, 340 U.S. 290 (1951), 768, 792 Kurtz _v._ Moffitt, 115 U.S. 487 (1885), 482, 615 Kwock Jan Fat _v._ White, 253 U.S. 454 (1920), 852 L La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899), 103, 421, 514, 550, 624 LaBelle Iron Works _v._ United States, 256 U.S. 377 (1921), 110, 863 Labor Board _v._ Virginia Power Co., 314 U.S. 469 (1941), 793 Lacassagne _v._ Chapuis, 144 U.S. 119 (1892), 611 Ladew _v._ Tennessee Copper Co., 218 U.S. 357 (1910), 620 Lafayette Insurance Co. _v._ French et al., 18 How. 404 (1856), 660 Lake Erie & W.R. Co. _v._ State Public Utilities Comm. ex rel. Cameron, 249 U.S. 422 (1919), 1012 Lake Shore & M.S.R. Co. _v._ Clough, 242 U.S. 375 (1917), 1011 Lake Shore & M.S.R. Co. _v._ Ohio ex rel. Lawrence, 173 U.S. 285 (1899), 221, 222 Lake Shore & M.S.R. Co. _v._ Prentice, 147 U.S. 101 (1893), 604 Lake Shore & M.S.R. Co. _v._ Smith, 173 U.S. 684 (1899), 344, 1016 Lamar _v._ United States, 241 U.S. 103 (1916), 881 Lam Mow _v._ Nagle, 24 F. (2d) 316 (1928), 964 Lampasas _v._ Bell, 180 U.S. 276 (1901), 540 Land _v._ Dollar, 330 U.S. 731 (1947), 588, 590 Lane _v._ Vick, 3 How. 464 (1845), 604, 605 Lane _v._ Wilson, 307 U.S. 268 (1939), 571, 1164, 1184 Lange, Ex parte, 18 Wall. 163 (1874), 839 Langnes _v._ Green, 282 U.S. 531 (1931), 524 Lankford _v._ Platte Iron Works, 235 U.S. 461 (1915), 932 Lanzetta _v._ New Jersey, 306 U.S. 451 (1939), 984, 1098 Lapeyre _v._ United States, 17 Wall. 191 (1873), 103 Large Oil Co. _v._ Howard, 248 U.S. 549 (1919), 735 Largent _v._ Texas, 318 U.S. 418 (1943), 786, 788 Larson _v._ Domestic & Foreign Corp., 337 U.S. 682 (1949), 495, 588, 589, 590, 929, 931, 934 Lascelles _v._ Georgia, 148 U.S. 537 (1893), 696 La Tourette _v._ McMaster, 248 U.S. 465 (1919), 687, 691, 1021 Latta & T. Constr. Co. _v._ The Raithmoor, 241 U.S. 166 (1916), 575 Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938), 524, 620, 622 Laura, The, 114 U.S. 411 (1885), 411 La Vengeance, 3 Dall. 297 (1796), 575, 576 Lawrence _v._ State Tax Commission, 286 U.S. 276 (1932), 1054 Lawton _v._ Steele, 152 U.S. 133 (1894), 1086 League _v._ Texas, 184 U.S. 156 (1902), 1062 Lee _v._ Mississippi, 332 U.S. 742 (1948), 1119 Lee _v._ Osceola & L. River Road Improv. Dist, 268 U.S. 643 (1925), 732 Lee, On _v._ United States, 343 U.S. 747 (1952), 824 Legal Tender Cases (Juilliard _v._ Greenman), 12 Wall. 457 (1871), 118, 267, 310, 362, 563 Legal Tender Cases (Juilliard _v._ Greenman), 110 U.S. 421 (1884), 266, 326 Lehigh Valley R. Co., In re, 265 U.S. 573 (1924), 610 Lehigh Valley R. Co. _v._ Barlow, 244 U.S. 183 (1917), 141 Lehigh Valley R. Co. _v._ Public Utility Comrs., 278 U.S. 24 (1928), 1011 Lehmann _v._ State Board of Public Accountancy, 263 U.S. 394 (1923), 328 Lehon _v._ Atlanta, 242 U.S. 53 (1916), 1024 Leigh _v._ Green, 193 U.S. 79 (1904), 1060, 1062 Leisy _v._ Hardin, 135 U.S. 100 (1890), 218, 239, 268 Leland _v._ Oregon, 343 U.S. 790 (1952), 1096 Leloup _v._ Port of Mobile, 127 U.S. 640 (1888), 193, 202 Lemieux _v._ Young, 211 U.S. 489 (1909), 1018, 1156 Lemke _v._ Farmers Grain Co., 258 U.S. 50 (1922), 149, 244 Lem Woon _v._ Oregon, 229 U.S. 586 (1913), 1098 Leser _v._ Garnett, 258 U.S. 130 (1922), 98, 712, 713, 714 Lessee of Livingston _v._ Moore, 7 Pet. 469 (1933), 751 Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103 (1933), 567 Levitt, Ex parte, 302 U.S. 633 (1937), 101, 542, 612 Levy Leasing Co. _v._ Siegel, 258 U.S. 242 (1922), 359 Lewis _v._ Cocks, 23 Wall. 466 (1874), 895 Lewis Blue Point Oyster Cultivation Co. _v._ Briggs, 229 U.S. 82 (1913), 868 Lewis Publishing Co. _v._ Morgan, 229 U.S. 288 (1913), 269 L'Hote _v._ New Orleans, 177 U.S. 587 (1900), 1031, 1154 Liberato _v._ Royer, 270 U.S. 535 (1926), 416 Liberty Warehouse Co. _v._ Burley Tobacco Growers' Co-op. Marketing Asso., 276 U.S. 71 (1928), 513, 965 Liberty Warehouse Co. _v._ Grannis, 273 U.S. 70 (1927), 513, 551 License Cases, 5 How. 504 (1847), 122, 723 License Tax Cases, 5 Wall. 462 (1867), 105, 110 Lichter _v._ United States, 334 U.S. 742 (1948), 75, 281, 289, 290 Life & C. Ins. Co. _v._ McCray, 291 U.S. 566 (1934), 1023, 1092 Liggett Co. _v._ Lee, 288 U.S. 517 (1933), 1149 Liggett (Louis K.) Co. _v._ Baldridge, 278 U.S. 105 (1928), 981, 983, 1023 Light _v._ United States, 220 U.S. 523 (1911), 702 Lincoln County _v._ Luning, 133 U.S. 529 (1890), 930, 936 Lincoln Federal Labor Union _v._ Northwestern Co., 335 U.S. 525 (1949), 783, 991, 993, 1023, 1150 Lincoln Nat. Life Ins. Co. _v._ Read, 325 U.S. 673 (1945), 1150 Lindenmuller _v._ The People, 33 Barbour (N.Y.) 548 (1861), 357 Lindsay & Phelps Co. _v._ Mullen, 176 U.S. 126 (1900), 231 Lindsey _v._ Washington, 301 U.S. 397 (1937), 328 Lindsley _v._ Natural Carbonic Gas Co., 220 U.S. 61 (1911), 1025, 1145, 1146, 1166 Ling Su Fan _v._ United States, 218 U.S. 302 (1910), 266 L'Invincible, 1 Wheat. 238 (1816), 575 Lipke _v._ Lederer, 259 U.S. 557 (1922), 621, 849 Lisenba _v._ California, 314 U.S. 219 (1941), 1113, 1125, 1132 Litchfield _v._ Webster Co., 101 U.S. 773 (1880), 931 Little _v._ Barreme, 2 Cr. 170 (1804), 492, 498, 501 Liverpool & L. & G. Ins. Co. _v._ Board of Assessors, 221 U.S. 346 (1911), 1056 Livingston _v._ Moore, 7 Pet. 469 (1833), 352 Lloyd _v._ Matthews, 155 U.S. 222 (1894), 676 Local 167 _v._ United States, 291 U.S. 293 (1934), 149 Loche _v._ New Orleans, 4 Wall. 172 (1867), 327, 338 Lochner _v._ New York, 198 U.S. 45 (1905), 564, 846, 977 Locke _v._ Dane, 9 Mass. 360 (1812), 338 Lockerty _v._ Phillips, 319 U.S. 182 (1943), 525, 532, 620 Lockwood, In re, 154 U.S. 116 (1894), 971 Locomobile Co. of America _v._ Massachusetts, 246 U.S. 146 (1918), 197 Loewe _v._ Lawlor, 208 U.S. 274 (1908), 149 Logan _v._ United States, 144 U.S. 263 (1892), 309, 839, 967 Londoner _v._ Denver, 210 U.S. 373 (1908), 850, 1059, 1060 Lonergan _v._ United States, 303 U.S. 33 (1938), 587 Lone Star Gas Co. _v._ Texas, 304 U.S. 224 (1938), 218, 234 Lone Wolf _v._ Hitchcock, 187 U.S. 553 (1903), 432, 864 Loney, In re, 134 U.S. 372 (1890), 96, 633 Long _v._ Ansell, 293 U.S. 76 (1934), 99 Long _v._ Rockwood, 277 U.S. 142 (1928), 276, 734 Long Island Water Supply Co. _v._ Brooklyn, 166 U.S. 685 (1897), 1063, 1065, 1069, 1096 Long Sault Development Co. _v._ Call, 242 U.S. 272 (1916), 329 Longyear _v._ Toolan, 209 U.S. 414 (1908), 1060 Look Tin Sing, In re, 21 F. 905 (1884), 964 Looney _v._ Crane Company, 245 U.S. 178 (1917), 196, 197, 1051 Looney _v._ Eastern Texas R. 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Elliott _v._ Jumel, 107 U.S. 711 (1883), 931, 932 Louisiana ex rel. Folsom Bros. _v._ New Orleans, 109 U.S. 285 (1883), 343, 1036 Louisiana ex rel. Francis _v._ Resweber, 329 U.S. 459 (1947), 1134, 1136 Louisiana ex rel. Nelson _v._ St. Martin's Parish, 111 U.S. 716 (1884), 356 Louisiana ex rel. Ranger _v._ New Orleans, 102 U.S. 203 (1880), 355 Louisiana Public Service Comm. _v._ Texas & N.O.R. Co., 284 U.S. 125 (1931), 219, 322, 323 Louisiana Ry. & Nav. Co. _v._ New Orleans, 235 U.S. 164 (1914), 330 Louisville & J. Ferry Co. _v._ Kentucky, 188 U.S. 385 (1903), 1041, 1050 Louisville & N.R. Co. _v._ Barber Asphalt Pav. Co., 197 U.S. 430 (1905), 1041 Louisville & N.R. Co. _v._ Central Stockyards Co., 212 U.S. 132 (1909), 685, 1013 Louisville & N.R. Co. _v._ Deer, 200 U.S. 176 (1906), 674 Louisville & N.R. Co. _v._ Garrett, 231 U.S. 298 (1913), 329, 1001, 1004 Louisville & N.R. Co. _v._ Greene, 244 U.S. 522 (1917), 931 Louisville & N.R. Co. _v._ Kentucky, 183 U.S. 503 (1902), 1013 Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911), 137, 219 Louisville & N.R. Co. _v._ Palmes, 109 U.S. 244 (1883), 347 Louisville & N.R. Co. _v._ Parker, 242 U.S. 13 (1916), 141 Louisville & N.R. Co. _v._ Schmidt, 177 U.S. 230 (1900), 1073, 1088, 1089 Louisville, Cincinnati & Charleston R. Co. _v._ Letson, 2 How. 497 (1844), 601 Louisville Gas & E. Co. _v._ Coleman, 277 U.S. 32 (1928), 1147, 1149 Louisville Joint Stock Bank _v._ Radford, 295 U.S. 555 (1935), 264, 362, 858 Louisville Water Co. _v._ Clark, 143 U.S. 1 (1892), 343, 846, 877 Lovell _v._ City of Griffin, 303 U.S. 444 (1938), 570, 786, 788 Low _v._ Austin, 13 Wall. 29 (1872), 303, 364 Lowe _v._ Kansas, 163 U.S. 81 (1896), 1092, 1167 Lucas _v._ Alexander, 279 U.S. 573 (1929), 1199 Luckenbach S.S. Co. _v._ United States, 272 U.S. 533 (1926), 616 Ludecke _v._ Watkins, 335 U.S. 160 (1948), 293, 298, 474, 548, 853 Ludwig _v._ Western Union Teleg. Co., 216 U.S. 146 (1910), 196 Lugo _v._ Suazo, 59 F. (2d) 386 (1932), 214 Luke _v._ Lyde, 2 Burr. 883 (1759), 604 Luria _v._ United States, 231 U.S. 9 (1913), 849, 893 Lustig _v._ United States, 338 U.S. 74 (1949), 831 Luther _v._ Borden, 7 How. 1 (1849), 386, 399, 546, 548, 705 Luxton _v._ North River Bridge Co., 153 U.S. 525 (1894), 132, 310 Lynch _v._ Hornby, 247 U.S. 339 (1918), 863, 1193 Lynch _v._ Turrish, 247 U.S. 221 (1918), 1193 Lynch _v._ United States, 292 U.S. 571 (1934), 118, 857, 858 Lynde _v._ Lynde, 181 U.S. 183 (1901), 671 Lyon _v._ Mutual Benefit Health & Accident Assn., 305 U.S. 484 (1039), 897 Lyons _v._ Oklahoma, 322 U.S. 596 (1944), 1114, 1115, 1141 M Mabee _v._ White Plains Publishing Co., 327 U.S. 178 (1946), 158 Macallen _v._ Massachusetts, 279 U.S. 620 (1929), 730 MacDougall _v._ Green, 335 U.S. 281 (1948), 548, 971, 1165, 1208 Mackay Teleg. & Cable Co. _v._ Little Rock, 250 U.S. 94 (1919), 214 Mackenzie _v._ Hare, 239 U.S. 299 (1915), 255, 259 Mackin _v._ United States, 117 U.S. 348 (1886), 838 MacLaughlin _v._ Alliance Ins. Co., 286 U.S. 244 (1932), 1200 Madden _v._ Kentucky, 309 U.S. 83 (1940), 563, 693, 969, 971, 1145, 1148 Madera Waterworks _v._ Madera, 228 U.S. 454 (1913), 349, 1009 Madisonville Traction Co. _v._ St. Bernard Min. Co., 196 U.S. 239 (1905), 629 Madsen _v._ Kinsella, 343 U.S. 341 (1952), 404, 493 Mager _v._ Grima, 8 How. 490 (1850), 364 Magnano Co. _v._ Hamilton, 292 U.S. 40 (1934), 111, 1030, 1148 Magniac _v._ Thompson, 7 Pet. 348 (1833), 896 Magnolia Petroleum Co. _v._ Hunt, 320 U.S. 430 (1943), 682 Magoun _v._ Illinois Trust & Sav. Bank, 170 U.S. 283 (1898), 1151 Maguire _v._ Reardon, 255 U.S. 271 (1921), 1029 Maguire _v._ Trefry, 253 U.S. 12 (1920), 1054 Mahler _v._ Eby, 264 U.S. 32 (1924), 78, 317, 853 Mahn _v._ Hardwood, 112 U.S. 354 (1884), 274 Mahnich _v._ Southern S.S. Co., 321 U.S. 96 (1944), 566 Mahon _v._ Justice, 127 U.S. 700 (1888), 696 Mahoney _v._ Triner Corp., 304 U.S. 401 (1938), 1231 Maine _v._ Grand Trunk R. Co., 142 U.S. 217 (1891), 202, 207 Maiorano _v._ Baltimore & O.R. Co., 213 U.S. 268 (1909), 416 Malinski _v._ New York, 324 U.S. 401 (1945), 1114, 1115, 1117, 1121, 1123, 1124 Mallett _v._ North Carolina, 181 U.S. 589 (1901), 329, 1166 Mallinckrodt Chemical Works _v._ Missouri ex rel. Jones, 238 U.S. 41 (1915), 1160 Malloy _v._ South Carolina, 237 U.S. 180 (1915), 328 Manchester _v._ Massachusetts, 139 U.S. 240 (1891), 578, 1027 Mandeville _v._ Canterbury, 318 U.S. 47 (1943), 627 Mandeville Is. Farms _v._ American C.S. Co., 334 U.S. 219 (1948), 143, 147 Manhattan L. Ins. 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Co., 235 U.S. 151 (1914), 698, 699, 704, 1162 McCall _v._ California, 136 U.S. 104 (1890), 222, 228 McCandless _v._ United States, 298 U.S. 342 (1936), 870 McCardle, Ex parte, 6 Wall. 318 (1868), 614 McCardle, Ex parte, 7 Wall. 506 (1869), 523, 614 McCardle _v._ Indianapolis Water Co., 272 U.S. 400 (1926), 1006 McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940), 177, 186, 195, 206, 219 McCarthy _v._ Arndstein, 262 U.S. 355 (1923), 827, 843 McCarthy _v._ Arndstein, 266 U.S. 34 (1924), 842, 843 McCaughey _v._ Lyall, 224 U.S. 558 (1912), 1082 McCloskey _v._ Tobin, 252 U.S. 107 (1920), 1024, 1156 McClung _v._ Silliman, 6 Wheat. 598 (1821), 522 McClurg _v._ Kingsland, 1 How. 202 (1843), 275 McCollum _v._ Board of Education, 333 U.S. 203 (1948), 758, 760, 762 McCormick _v._ Sullivant, 10 Wheat. 192 (1825), 673 McCoy _v._ Union Elev. 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Vernon-Woodberry Cotton Duck Co. _v._ Alabama Interstate Power Co., 240 U.S. 30 (1916), 1065 Moyer _v._ Peabody, 212 U.S. 78 (1909), 484 Mugler _v._ Kansas, 123 U.S. 623 (1887), 239, 973, 975, 976, 977, 1032 Muhlker _v._ New York & H.R. Co., 197 U.S. 544 (1905), 331 Mulford _v._ Smith, 307 U.S. 38 (1939), 76, 160, 856 Mullan _v._ United States, 140 U.S. 240 (1891), 404, 847 Mullan _v._ United States, 212 U.S. 516 (1909), 286 Mullane _v._ Central Hanover Tr. Co., 339 U.S. 306 (1950), 1083 Mullaney _v._ Anderson, 342 U.S. 415 (1952), 690 Muller _v._ Dows, 94 U.S. 444 (1877), 602 Muller _v._ Oregon, 208 U.S. 412 (1908), 979, 986, 1159 Munday _v._ Wisconsin Trust Co., 252 U.S. 499 (1920), 1016 Munn _v._ Illinois, 94 U.S. 113 (1877), 133, 312, 323, 340, 972, 973, 975, 994, 996, 998, 999, 1004, 1005 Munsey _v._ Clough, 196 U.S. 364 (1905), 695 Murdock _v._ Pennsylvania, 319 U.S. 105 (1943), 563, 767, 792 Murphy _v._ California, 225 U.S. 623 (1912), 1024, 1154 Murphy _v._ Massachusetts, 177 U.S. 155 (1900), 1135, 1138 Murphy _v._ Ramsey, 114 U.S. 15 (1885), 317, 703 Murray _v._ Charleston, 96 U.S. 432 (1878), 343 Murray _v._ Hoboken Land & Improvement Co., 18 How. 272 (1856), 622 Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909), 930, 931, 936 Muskrat _v._ United States, 219 U.S. 346 (1911), 511, 514, 539, 540, 550, 551, 561, 623 Musser _v._ Utah, 333 U.S. 95 (1948), 780 Mutual Assur. Soc. _v._ Watts, 1 Wheat. 279 (1816), 302 Mutual Ben. L. Ins. Co. _v._ Tisdale, 91 U.S. 238 (1876), 258 Mutual Film Corp. _v._ Hodges, 236 U.S. 248 (1915), 238 Mutual Film Corp. _v._ Industrial Commission, 236 U.S. 230 (1915), 788 Mutual L. Ins. Co. _v._ Harris, 97 U.S. 331 (1878), 654 Mutual Life Ins. Co. _v._ Johnson, 293 U.S. 335 (1934), 605 Mutual Life Insurance Co. _v._ Spratley, 172 U.S. 602 (1899),, 1077 Mutual Loan Co. _v._ Martell, 222 U.S. 225 (1911), 1021 Mutual Reserve, etc. Assn. _v._ Phelps, 190 U.S. 147 (1903),, 1078 Myers _v._ Irwin, 2 Sergeant & Rawle's (Pa.) 367 (1816), 357 Myers _v._ United States, 264 U.S. 95 (1924), 878 Myers _v._ United States, 272 U.S. 52 (1926), 380, 450, 456 Myles Salt Co. _v._ Iberia & St. M. Drainage Dist., 239 U.S. 478 (1916), 1041 N Napier _v._ Atlantic Coast Line R. Co., 272 U.S. 605 (1926),, 250 Nardone _v._ United States, 302 U.S. 379 (1937), 824 Nardone _v._ United States, 308 U.S. 338 (1939), 824 Nash _v._ United States, 229 U.S. 373 (1913), 883 Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96 (1888), 141, 222, 1014, 1024 Nashville, C. & St. L. Ry. _v._ Browning, 310 U.S. 362 (1940), 201, 204, 1040, 1152 Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933), 186, 514, 551, 553, 1037, 1148 Nashville, C. & St. L.R. Co. _v._ Walters, 294 U.S. 405, (1935), 982, 1009, 1011 Nashville, C. & St. L.R. Co. _v._ White, 278 U.S. 456 (1929), 1014 Natal _v._ Louisiana, 139 U.S. 621 (1891), 1024, 1155 Nathan _v._ Louisiana, 8 How. 73 (1850), 188, 364 Nathanson _v._ United States, 290 U.S. 41 (1933), 823 National Association of Manufacturers _v._ McGrath, 103 F. Supp. 510 (1952), 810 National Broadcasting Co. _v._ United States, 319 U.S. 190 (1943), 75, 78 National Cotton Oil Co. _v._ Texas, 197 U.S. 115 (1905), 1017 National Council _v._ State Council, 203 U.S. 151 (1906), 1016 National Exchange Bank _v._ Peters, 144 U.S. 570 (1892), 616 National Exchange Bank _v._ Wiley, 195 U.S. 257 (1904), 656, 1072 National Fertilizer Asso. _v._ Bradley, 301 U.S. 178 (1937), 1019 National Gas Pipeline Co. _v._ Slattery, 302 U.S. 300 (1937), 234 National Labor Relations Board _v._ Fainblatt, 306 U.S. 601 (1939), 155 National Labor Relations Board _v._ Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937), 155 National Labor Relations Board _v._ Fruehauf Trailer Co., 301 U.S. 49 (1937), 155 National Labor Relations Board _v._ Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), 154, 723, 855, 859, 893, 918, 980 National Labor Relations Board _v._ Mackay Co., 304 U.S. 333 (1938), 850, 859 National Labor Relations Board _v._ Stowe Spinning Co., 336 U.S. 226 (1949), 859 National Mutual B. & L. Asso. _v._ Brahan, 193 U.S. 635 (1904), 676, 679, 680 National Mutual Insurance Co. _v._ Tidewater Transfer Co., 337 U.S. 582 (1949) 303, 537, 600 National Paper & Type Co. _v._ Bowers, 266 U.S. 373 (1924), 321, 868 National Prohibition Cases. _See_ Rhode Island _v._ Palmer. National Safe Deposit Co. _v._ Stead, 232 U.S. 58 (1914), 1061, 1121 National Union F. Ins. Co. _v._ Wanberg, 260 U.S. 71 (1922), 1022 Natural Gas Pipeline Co. _v._ Slattery, 302 U.S. 300 (1937), 234 Neagle, In re, 135 U.S. 1 (1890), 460, 482, 501, 633 Neal _v._ Delaware, 103 U.S. 370 (1881), 1142, 1183 Near _v._ Minnesota, 283 U.S. 697 (1931), 757, 786 Nebbia _v._ New York, 291 U.S. 502 (1934), 244, 982, 996, 997, 998, 1017, 1154, 1160 Neblett _v._ Carpenter, 305 U.S. 297 (1938), 362, 1023 Nebraska _v._ Wyoming, 325 U.S. 589 (1945), 593 Nectaw _v._ Cambridge, 277 U.S. 183 (1928), 1028 Neely _v._ Hankel, 180 U.S. 109 (1901), 308, 317, 427, 473 Nelson _v._ Montgomery Ward & Company, 312 U.S. 373 (1941), 190 Nelson _v._ Sears, Roebuck & Company, 312 U.S. 359 (1941), 190 Newark _v._ New Jersey, 262 U.S. 192 (1923), 1143 Newark Fire Ins. Co. _v._ State Board, 307 U.S. 313 (1939), 1050 New Bedford Dry Dock Co. _v._ Purdy, 258 U.S. 96 (1922), 574 Newberry _v._ United States, 256 U.S. 232 (1921), 94, 96 New Brunswick _v._ United States, 276 U.S. 547 (1928), 732 Newburyport Water Co. _v._ Newburyport, 193 U.S. 561 (1904), 567, 1009 New England Divisions Case. _See_ Akron, C. & Y.R. Co. _v._ United States. New England M. Inc. Co. _v._ Dunham, 11 Wall. 1 (1871), 574 New Hampshire _v._ Louisiana, 108 U.S. 76 (1883), 594, 930 New Haven & N. Co. _v._ Hamersley, 104 U.S. 1 (1881), 345 New Jersey _v._ New York, 283 U.S. 336 (1931), 612 New Jersey _v._ New York, 5 Pet. 284 (1831), 592 New Jersey _v._ Sargent, 269 U.S. 328 (1926), 543, 596 New Jersey _v._ Wilson, 7 Cr. 164 (1812), 341 New Jersey _v._ Yard, 95 U.S. 104 (1877), 343 New Jersey Bell Telephone Co. _v._ State Bd. of Taxes & Assessments, 280 U.S. 338 (1930), 126, 203, 204 New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344 (1848), 573, 574, 577 New Mexico _v._ Lane, 243 U.S. 52 (1917), 588 New Mexico ex rel. McLean _v._ Denver & R.G.R. Co., 203 U.S. 38 (1906), 214 New Negro Alliance _v._ Sanitary Grocery Co., 303 U.S. 552 (1938), 524, 622 New Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891), 352 New Orleans _v._ Winter, 1 Wheat. 91 (1816), 302, 600 New Orleans & Lake R. Co. _v._ Louisiana, 157 U.S. 219 (1895), 355 New Orleans Debenture Redemption Co. _v._ Louisiana, 180 U.S. 320 (1901), 1016 New Orleans Gas Light Co. _v._ Drainage Commission, 197 U.S. 453 (1905), 1010 New Orleans Gas Co. _v._ Louisiana Light Co., 115 U.S. 650 (1885), 329, 351 New Orleans Public Service, Inc., _v._ New Orleans, 281 U.S. 682 (1930), 983, 1010 New Orleans Waterworks Co. _v._ Louisiana Sugar Ref. Co., 125 U.S. 18 (1888), 329 New Orleans Waterworks Co. _v._ Rivers, 115 U.S. 674 (1885), 329 Newport & Cincinnati Bridge Co. _v._ United States, 105 U.S. 470 (1882), 128 New State Ice Co. _v._ Liebmann, 285 U.S. 262 (1932), 996, 997 Newton _v._ Consolidated Gas Co., 258 U.S. 165 (1922), 1008 Newton _v._ Mahoning County, 100 U.S. 548 (1880), 340 New York _v._ Compagnie Générale Transatlantique, 107 U.S. 59 (1883), 193 New York _v._ Eno, 155 U.S. 89 (1894), 634 New York _v._ Illinois, 274 U.S. 488 (1927), 544 New York _v._ Irving Trust Co., 288 U.S. 329 (1933), 265 New York _v._ Miln, 11 Pet. 102 (1837), 122, 216, 241, 722 New York _v._ United States, 257 U.S. 591 (1922), 219, 362, 921 New York _v._ United States, 326 U.S. 572 (1946), 108, 916, 1064 New York _v._ United States, 331 U.S. 284 (1947), 77 New York _v._ United States, 342 U.S. 882 (1951), 77 New York Central _v._ Miller, 202 U.S. 584 (1906), 1052 New York C. & H.R.R. Co. _v._ Bd. of Chosen Freeholders, 227 U.S. 248 (1913), 130, 231 New York C.R. Co. _v._ Bianc, 250 U.S. 596 (1919), 990 New York C.R. Co. _v._ White, 243 U.S. 188 (1917), 141, 358, 989, 1096, 1159 New York Central Securities Corp _v._ United States, 287 U.S. 12 (1932), 75, 78 New York, Ex parte, 256 U.S. 490 (1921), 930 New York ex rel. Bank of Commerce _v._ Comrs. of Taxes & Assessments, 2 Bl. 620 (1863), 729 New York ex rel. Bryant _v._ Zimmerman, 278 U.S. 63 (1928), 971, 1156 New York ex rel. Burke _v._ Wells, 208 U.S. 14 (1908), 364 New York ex rel. Cohn _v._ Graves, 300 U.S. 308 (1937), 1054 New York ex rel. Hatch _v._ Reardon, 204 U.S. 152 (1907), 188, 1044 New York ex rel. Lieberman _v._ Van De Carr, 199 U.S. 552 (1905), 1029, 1071, 1154 New York ex rel. New York, C. & H.R.R. Co. _v._ Miller, 202 U.S. 584 (1906), 211, 1042 New York ex rel. New York Electric Lines Co. _v._ Squire, 145 U.S. 175 (1892), 213 New York ex rel. New York & O. Gas Co. _v._ McCall, 245 U.S. 345 (1917), 1011 New York ex rel. Rogers _v._ Graves, 299 U.S. 401 (1937), 731 New York ex rel. Whitman _v._ Wilson, 318 U.S. 688 (1943), 1125 New York ex rel. Woodhaven Gas Light Co. _v._ Public Service Commission, 269 U.S. 244 (1925), 1011 New York Indians, The, 5 Wall. 761 (1867), 432, 735 New York Life Ins. Co. _v._ Cravens, 178 U.S. 389 (1900), 120, 680 New York L. Ins. Co. _v._ Deer Lodge County, 231 U.S. 495 (1913), 120 New York L. Ins. Co. _v._ Dodge, 246 U.S. 375 (1918), 1022 New York Life Ins. Co. _v._ Head, 234 U.S. 149 (1914), 679 New York & N.E.R. Co. _v._ Bristol, 151 U.S. 556 (1894), 345, 1156 New York, N.H. & H.R. Co. _v._ New York, 165 U.S. 628 (1897), 222, 223, 1014 New York, P. & N. Teleg. Co. _v._ Dolan, 265 U.S. 96 (1924), 1039 New York Rapid Transit Co. _v._ City of New York, 303 U.S. 573 (1938), 347, 1148 New York State R. Co. _v._ Shuler, 265 U.S. 379 (1924), 990 New York Trust Co. _v._ Eisner, 256 U.S. 345 (1921), 320 Ng Fung Ho _v._ White, 259 U.S. 276 (1922), 853 Nicchia _v._ New York, 254 U.S. 228 (1920), 1037 Nichols _v._ Coolidge, 274 U.S. 531 (1927), 863 Nichols _v._ United States, 7 Wall. 122 (1869), 586 Nickel _v._ Cole, 256 U.S. 222 (1921), 1038 Nickey _v._ Mississippi, 292 U.S. 393 (1934), 1058 Nicol _v._ Ames, 173 U.S. 509 (1899), 320, 1191 Nielsen, Ex parte, 131 U.S. 176 (1889), 840 Nielsen _v._ Johnson, 279 U.S. 47 (1929), 416, 439 Niemotko _v._ Maryland, 340 U.S. 268 (1951), 768 Nigro _v._ United States, 276 U.S. 332 (1928), 111 Nippert _v._ Richmond, 327 U.S. 416 (1946), 191, 1079 Nishimura Ekiu _v._ United States, 142 U.S. 651 (1892), 452 Nixon _v._ Condon, 286 U.S. 73 (1932), 1142, 1164, 1185 Nixon _v._ Herndon, 273 U.S. 536 (1927), 1142, 1164, 1185 Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893), 501, 857 Noble State Bank _v._ Haskell, 219 U.S. 104 (1911), 983, 1020 Nogueira _v._ New York, N.H. & H.R. Co., 281 U.S. 128 (1930), 581, 582 Norfolk & S. Turnpike Co. _v._ Virginia, 225 U.S. 264 (1912), 1010 Norfolk & W.R. Co. _v._ Pendleton, 156 U.S. 667 (1895), 347 Norfolk & W.R. Co. _v._ Pennsylvania, 136 U.S. 114 (1890), 195 Norfolk & W.R. Co. _v._ Sims, 191 U.S. 441 (1903), 187 Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935), 266, 310, 856 Norris _v._ Alabama, 294 U.S. 587 (1935), 1098 North American Cold Storage Co. _v._ Chicago, 211 U.S. 306 (1908), 1030, 1087 North American Co. _v._ S.E.C., 327 U.S. 686 (1946), 151 North Carolina _v._ Temple, 134 U.S. 22 (1890), 933 North Carolina _v._ United States, 325 U.S. 507 (1945), 137 North Laramie Land Co. _v._ Hoffman, 268 U.S. 276 (1925), 1069 North Pacific S.S. Co. _v._ Hall Brothers M.R. & S. Co., 249 U.S. 119 (1919), 574 Northern Assur. Co. _v._ Grand View Bldg. Asso., 203 U.S. 106 (1906), 685 Northern Coal & Dock Co. _v._ Strand, 278 U.S. 142 (1928), 582 Northern Pac. R.R. _v._ Babcock, 154 U.S. 190 (1894), 677 Northern Pac. R. Co. _v._ Minnesota, 208 U.S. 583 (1908), 345 Northern P.R. Co. _v._ Myers, 172 U.S. 589 (1899), 732 Northern P.R. Co. _v._ North Dakota, 250 U.S. 135 (1919), 280 Northern Securities Co. _v._ United States, 193 U.S. 197 (1904), 147, 166, 920, 981 Northern Transp. Co. _v._ Chicago, 99 U.S. 635 (1879), 229, 1068 Northwest Airlines _v._ Minnesota, 322 U.S. 292 (1944), 210, 211, 1052 Northwestern Bell Teleph. Co. _v._ Nebraska State R. Com., 297 U.S. 471 (1936), 232 Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S. 119 (1944), 860, 921 Northwestern Laundry Co. _v._ Des Moines, 239 U.S. 486 (1916), 1028 Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 247 U.S. 132 (1918), 1148 Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136 (1927), 730 Northwestern Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243 (1906), 809, 981, 1023 Northwestern Union Packet Co. _v._ St. Louis, 100 U.S. 423 (1880), 366 Norton Co. _v._ Dept. of Revenue, 340 U.S. 534 (1951), 192 Nortz _v._ United States, 294 U.S. 317 (1935), 266 Nutting _v._ Massachusetts, 185 U.S. 553 (1902), 1021 Nye _v._ United States, 313 U.S. 33 (1941), 517, 784 O O'Brien _v._ Miller, 168 U.S. 287 (1897), 574 Oceanic Steam Nav. Co. _v._ Stranahan, 214 U.S. 320 (1909), 852, 878 Ochoa _v._ Hernandez Y Morales, 230 U.S. 139 (1913), 856 Octavia, The, 1 Wheat. 20 (1816), 573 O'Donnell _v._ Great Lakes Dredge & Dock Co., 318 U.S. 36 (1943), 130, 583 O'Donoghue _v._ United States, 289 U.S. 516 (1933), 303, 305, 531, 537 Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918), 439, 473, 474 Offield _v._ New York, N.H. & H.R. Co., 203 U.S. 372 (1906), 1063 Ogden _v._ Saunders, 12 Wheat. 213 (1827), 264, 265, 334, 353, 563 Ogden _v._ Witherspoon, 18 Fed. Cas. No. 10, 461 (1802), 560 O'Gorman & Young _v._ Hartford F. Ins. Co., 282 U.S. 251 (1931) 996, 1021 Ohio _v._ Chattanooga Boiler & Tank Co., 289 U.S. 439 (1933), 655 Ohio _v._ Helvering, 292 U.S. 360 (1934), 107 Ohio _v._ Thomas, 173 U.S. 276 (1899), 633, 724 Ohio ex rel. Bryant _v._ Akron Metropolitan Park Dist., 281 U.S. 74 (1930), 704, 705, 1072, 1166 Ohio ex rel. Clarke _v._ Deckebach, 274 U.S. 392 (1927), 1158 Ohio ex rel. Davis _v._ Hildebrant, 241 U.S. 565 (1916), 93, 705 Ohio ex rel. Lloyd _v._ Dollison, 194 U.S. 445 (1904), 1155 Ohio ex rel. Popovici _v._ Agler, 280 U.S. 379 (1930), 571, 613 Ohio Life Insurance Co. _v._ Debolt, 16 How. 416 (1854), 330 Ohio Oil Co. _v._ Conway, 281 U.S. 146 (1930), 1148 Ohio Oil Co. _v._ Indiana (No. 1), 177 U.S. 190 (1900), 1025 Ohio Tax Cases, 232 U.S. 576 (1914), 1148 Ohio Valley Water Company _v._ Ben Avon Borough, 253 U.S. 287 (1920), 1003 Okanogan Indians _v._ United States, 279 U.S. 655 (1929), 103 Oklahoma _v._ Atchison, Topeka & Santa Fe R. Co., 220 U.S. 277 (1911), 594, 596, 597, 598 Oklahoma _v._ Atkinson Co., 313 U.S. 508 (1941), 865, 868, 920 Oklahoma _v._ Kansas Natural Gas Co., 221 U.S. 229 (1911), 243, 245, 1025 Oklahoma _v._ Texas, 258 U.S. 574 (1922), 703 Oklahoma _v._ United States Civil Service Commission, 330 U.S. 127 (1947), 116, 794, 920 Oklahoma ex rel. Johnson _v._ Cook, 304 U.S. 387 (1938), 594, 596, 597 Oklahoma ex rel. Phillips _v._ Atkinson Co., 313 U.S. 508 (1941), 132 Oklahoma Gas Co. _v._ Packing Co., 292 U.S. 386 (1934), 631 Oklahoma Packing Co. _v._ Oklahoma Gas and Electric Co., 309 U.S. 4 (1940), 524 Oklahoma Press Publishing Co. _v._ Walling, 327 U.S. 186 (1946), 521, 793, 826, 827, 828, 844 Oklahoma Tax Comm'n. _v._ Barnsdall Refiners, 296 U.S. 521 (1936), 734 Oklahoma Tax Comm'n. _v._ Texas Co., 336 U.S. 342 (1949), 734 Olcott _v._ Fond du Lac County, 16 Wall. 678 (1873), 331 Old Colony Trust Co. _v._ Commissioner of Internal Revenue, 279 U.S. 716 (1920), 534 Old Colony Trust Co. _v._ Seattle, 271 U.S. 426 (1926), 934 Old Dearborn Distributing Co. _v._ Seagram-Distillers Corp., 299 U.S. 183 (1936), 1018 Old Dominion Land Co. _v._ United States, 269 U.S. 55 (1925), 866, 867 Old Dominion S.S. Co. _v._ Gilmore (The "Hamilton"), 207 U.S. 398 (1907), 130, 575, 579 Old Dominion S.S. Co. _v._ Virginia, 198 U.S. 299 (1905), 210, 1052 Old Wayne Life Assn. _v._ McDonough, 204 U.S. 8 (1907), 659, 1076 Olin _v._ Kitzmiller, 259 U.S. 260 (1922), 370 Oliver Iron Company _v._ Lord, 262 U.S. 172 (1923), 120, 181 Oliver, In re, 333 U.S. 257 (1948), 1130 Olmstead _v._ United States, 277 U.S. 438 (1928), 824 Olmsted _v._ Olmsted, 216 U.S. 386 (1910), 673 Olsen _v._ Nebraska, 313 U.S. 236 (1941), 997, 1023 Olsen _v._ Smith, 195 U.S. 332 (1904), 1024 Olson _v._ United States, 292 U.S. 246 (1934), 870 Omaechevarria _v._ Idaho, 246 U.S. 343 (1918), 1154 O'Malley _v._ Woodrough, 307 U.S. 277 (1939), 106, 530 Omnia Commercial Co. _v._ United States, 261 U.S. 502 (1923), 867 O'Neil _v._ Vermont, 144 U.S. 323 (1892), 752, 904 O'Neill _v._ Leamer, 239 U.S. 244 (1915), 705 Ontario Land Co. _v._ Yordy, 212 U.S. 152 (1909), 1060 Opp Cotton Mills _v._ Administrator, 312 U.S. 126 (1941), 75, 81, 849 Order of Travelers _v._ Wolfe, 331 U.S. 586 (1947), 679 Oregon _v._ Hitchcock, 202 U.S. 60 (1906), 588, 590 Oregon & C.R. Co. _v._ United States, 243 U.S. 549 (1917), 857 Oregon Short Line & Utah N. Ry. Co. _v._ Skottowe, 162 U.S. 490 (1896), 567 Oregon-Washington R. & Nav. Co. _v._ Washington, 270 U.S. 87 (1926), 249 Orient Ins. Co. _v._ Board of Assessors, 221 U.S. 358 (1911), 1056 Orient Ins. Co. _v._ Daggs, 172 U.S. 557 (1899), 965, 1022, 1145 Orleans, The, _v._ Phoebus, 11 Pet. 175 (1837), 578 Orr _v._ Gilman, 183 U.S. 278 (1902), 327, 1038 Orr _v._ Hodgson, 4 Wheat. 458 (1819), 416 Orton _v._ Smith, 18 How. 263 (1856), 627, 628 Osborn _v._ Bank of the United States, 9 Wheat. 738 (1824), 257, 267, 309, 538, 561, 568, 629, 728, 730, 929, 931 Osborn _v._ Ozlin, 310 U.S. 53 (1940), 1021 Osborne _v._ Florida, 164 U.S. 650 (1897), 196 Osborne _v._ Mobile, 16 Wall. 479 (1873), 366 Oshkosh Waterworks Co. _v._ Oshkosh, 187 U.S. 437 (1903), 355 Osman _v._ Douds, 339 U.S. 846 (1950), 795 Osterman _v._ Baldwin, 6 Wall. 116 (1867), 257 Otis _v._ Parker, 187 U.S. 606 (1903), 1019, 1156 Otis Co. _v._ Ludlow Mfg. Co., 201 U.S. 140 (1906), 1066 Ott _v._ Mississippi Barge Line Co., 336 U.S. 169 (1949), 210 Ouachita Packet Co. _v._ Aiken, 121 U.S. 444 (1887), 231, 366 Overnight Motor Co. _v._ Missel, 316 U.S. 572 (1942), 157 Overstreet _v._ North Shore Corp., 318 U.S. 125 (1943), 157 Owensboro Nat. Bank _v._ Owensboro, 173 U.S. 664 (1899), 734 Owings _v._ Speed, 5 Wheat. 420 (1820), 743 Ownbey _v._ Morgan, 256 U.S. 94 (1921),1089, 1091 Oyama _v._ California, 332 U.S. 633 (1948), 417, 968, 1157 Ozan Lumber Co. _v._ Union County Nat. Bank, 207 U.S. 251 (1907), 276 Ozark Pipe Line _v._ Monier, 266 U.S. 555 (1925), 194 P Pace _v._ Alabama, 106 U.S. 583 (1883), 1161 Pace _v._ Burgess, 92 U.S. 372 (1876), 322 Pacific Coast Dairy _v._ Dept. of Agriculture, 318 U.S. 285 (1943), 305, 726 Pacific Gas & Electric Co. _v._ Police Court, 251 U.S. 22 (1919), 1011, 1156 Pacific Ins. _v._ Comm'n., 306 U.S. 493 (1939), 682 Pacific Ins. Co. _v._ Soule, 7 Wall. 433 (1869), 319 Pacific Railroad Removal Cases (Union P.R. Co. _v._ Myers), 115 U.S. 1 (1885), 310, 568 Pacific Railway Cases, 127 U.S. 1 (1888), 114 Pacific Railway Commission, In re, 32 Fed. 241 (1887), 539 Pacific R. Co. _v._ Maguire, 20 Wall. 36 (1874), 342 Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935), 1019, 1085, 1160 Pacific States Telephone & Telegraph Co. _v._ Oregon, 223 U.S. 118 (1912), 548, 705 Pacific Steam Whaling Co. _v._ United States, 187 U.S. 447 (1903), 621 Pacific Telephone & Telegraph Co. _v._ Gallagher, 306 U.S. 182 (1939), 186 Pacific Teleph. & Teleg. Co. _v._ Tax Commission, 297 U.S. 403 (1936), 126, 136, 197 Packard _v._ Banton, 264 U.S. 140 (1924), 1033, 1155 Packer Corp. _v._ Utah, 285 U.S. 105 (1932), 1024, 1153 Packet Co. _v._ Keokuk, 95 U.S. 80 (1877), 210, 231 Paddell _v._ New York, 211 U.S. 446 (1908), 1040 Page (Miller) _v._ United States, 11 Wall. 268 (1871), 865 Page _v._ United States, 127 U.S. 67 (1888), 99 Paine Lumber Co. _v._ Neal, 244 U.S. 459 (1917), 524 Palko _v._ Connecticut, 302 U.S. 319 (1937), 791, 971, 1098, 1112, 1116, 1122, 1135, 1136 Palmer _v._ Ashe, 342 U.S. 134 (1951), 1107 Palmer _v._ Barrett, 162 U.S. 399 (1896), 306 Palmer _v._ McMahon, 133 U.S. 660 (1890), 1062, 1071 Palmetto F. Ins. Co. _v._ Connecticut, 272 U.S. 295 (1926), 1056 Panama R. Co. _v._ Johnson, 264 U.S. 375 (1924), 854 Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935), 76, 80, 81, 380 Panhandle Co. _v._ Michigan Comm'n., 341 U.S. 329 (1951), 234 Panhandle Eastern Pipe Line Co. _v._ Public Serv. Commission of Indiana, 332 U.S. 507 (1947), 234, 250 Panhandle Eastern Pipe Line Co. _v._ State Highway Commission, 294 U.S. 613 (1935), 983, 1010 Panhandle Oil Co. _v._ Knox, 277 U.S. 218 (1928), 731 Paquete Habana, The, 175 U.S. 677 (1900), 296 Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940), 311, 856 Parker _v._ Brown, 317 U.S. 341 (1943), 177, 218, 219, 250 Parker _v._ Motor Boat Sales, 314 U.S. 244 (1941), 582 Parkersburg & O. Transp. Co. _v._ Parkersburg, 107 U.S. 691 (1883), 127, 231, 366 Parkinson _v._ United States, 121 U.S. 281 (1887), 838 Parsons _v._ Armor, 3 Pet. 413 (1830), 897 Parsons _v._ Bedford, 3 Pet. 433 (1830), 891, 893 Parsons _v._ District of Columbia, 170 U.S. 45 (1898), 848 Parsons _v._ United States, 167 U.S. 324 (1897), 460 Passaic Bridges, The, 3 Wall. 782 (1866), 122 Passavant _v._ United States, 148 U.S. 214 (1893), 849 Passenger Cases, 7 How. 283 (1849), 122 Patapsco Guano Co. _v._ Board of Agriculture, 171 U.S. 345 (1898), 183, 238, 365 Patent Clothing Co. _v._ Glover, 141 U.S. 560 (1891), 273 Paterno _v._ Lyons, 334 U.S. 314 (1948), 1133 Patsone _v._ Pennsylvania, 232 U.S. 138 (1914), 1158 Patterson _v._ Colorado, 205 U.S. 454 (1907), 752, 771, 774, 784, 1141 Patterson _v._ The "Eudora," 190 U.S. 169 (1903), 855 Patterson _v._ Kentucky, 97 U.S. 501 (1879), 122, 276 Patton _v._ Brady, 184 U.S. 608 (1902), 320, 864, 1191 Patton _v._ Mississippi, 332 U.S. 463 (1947), 1168 Patton _v._ United States, 281 U.S. 276 (1930), 879 Paul _v._ Virginia, 8 Wall. 168 (1869), 120, 193, 198, 361, 689, 965 Paulsen _v._ Portland, 149 U.S. 30 (1893), 1059, 1085 Pawhuska _v._ Pawhuska Oil Co., 250 U.S. 394 (1919), 982 Pawlet _v._ Clark, 9 Cr. 292 (1815), 609 Payne _v._ Kansas, 248 U.S. 112 (1918), 1148 Peabody _v._ Eisner, 247 U.S. 347 (1918), 1193 Peabody _v._ United States, 231 U.S. 530 (1913), 586, 867 Pearson _v._ McGraw, 308 U.S. 313 (1939), 1048 Pearson _v._ Yewdall, 95 U.S. 294 (1877), 892 Pease _v._ Peck, 18 How. 595 (1856), 604 Pease _v._ Rathbun-Jones Eng. Co., 243 U.S. 273 (1917), 893 Peck _v._ Jenness, 7 How. 612 (1849), 627, 628 Peck & Co. _v._ Lowe, 247 U.S. 165 (1918), 321 Pedersen _v._ Delaware L. & W.R. Co., 229 U.S. 146 (1913), 141 Peete _v._ Morgan, 19 Wall. 581 (1874), 366 Peggy, The. _See_ United States _v._ Schooner Peggy. Peik _v._ Chicago & Northwestern R. Co., 94 U.S. 164 (1877), 220, 998, 1143 Penfield Co. _v._ Securities & Exchange Commission, 330 U.S. 585 (1947), 521 Penhallow _v._ Doane, 3 Dall. 54 (1795), 73, 280 Penn Dairies _v._ Milk Control Comm'n., 318 U.S. 261 (1943), 726 Pennekamp _v._ Florida, 328 U.S. 331 (1946), 784, 789 Pennie _v._ Reis, 132 U.S. 464 (1889), 982 Pennington _v._ Fourth Nat. Bank, 243 U.S. 269 (1917), 1072, 1081 Pennington _v._ Gibson, 16 How. 65 (1854), 684 Pennock _v._ Dialogue, 2 Pet. 1 (1829), 271 Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891), 931, 932, 933 Pennoyer _v._ Neff, 95 U.S. 714 (1878), 659, 1072, 1073, 1080, 1081 Pennsylvania _v._ Quicksilver Min. Co., 10 Wall. 553 (1871), 596, 597 Pennsylvania _v._ West Virginia, 262 U.S. 553 (1923), 138, 218, 243, 593 Pennsylvania _v._ Wheeling Bridge Co., 13 How. 518 (1852), 126, 127, 214, 545 Pennsylvania _v._ Wheeling & B. Bridge Co., 18 How. 421 (1856), 120, 214, 322, 369, 370 Pennsylvania Coal Co. _v._ Mahon, 260 U.S. 393 (1922), 983, 1026, 1065, 1068 Pennsylvania College Cases, 13 Wall. 190 (1872), 343, 344 Pennsylvania ex rel. Sullivan _v._ Ashe, 302 U.S. 51 (1937), 1161 Pennsylvania F. Ins. Co. _v._ Gold Issue Min. & Mill. Co., 243 U.S. 93 (1917), 676, 1076 Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 (1917), 350, 352, 1063 Pennsylvania Natural Gas Co. _v._ Public Serv. Com., 252 U.S. 23 (1920), 233 Pennsylvania R. Co. _v._ Illinois Brick Co., 297 U.S. 447 (1936), 220 Pensacola Teleg. Co. _v._ Western U. Teleg. Co., 96 U.S. 1 (1878), 120, 125, 133, 193, 232, 270 Peonage Cases, 123 F. 671 (1903), 951 People _v._ Board of Supervisors, 7 Wall. 26 (1869), 729 People _v._ Croswell, 3 Johns (N.Y.) 337 (1804), 771 Peoples Natural Gas Co. _v._ Public Serv. Com., 270 U.S. 550 (1926), 234 Pep Boys, The _v._ Pyroil Sales Co., 299 U.S. 198 (1936), 1018 Perkins _v._ Benguet Mining Co., 342 U.S. 437 (1952), 1080 Perkins _v._ Elg, 307 U.S. 325 (1939), 258, 552, 964 Perkins, Secretary of Labor _v._ Lukens Steel Co., 310 U.S. 113 (1940), 589 Perley _v._ North Carolina, 249 U.S. 510 (1919), 1030 Perlman _v._ United States, 247 U.S. 7 (1918), 827 Permoli _v._ New Orleans, 3 How. 589 (1845), 698, 699, 751 Perrin _v._ United States, 232 U.S. 478 (1914), 253 Perry _v._ Haines, 191 U.S. 17 (1903), 578 Perry _v._ United States, 294 U.S. 330 (1935), 118, 267, 362, 857, 1174 Pervear _v._ Massachusetts, 5 Wall. 475 (1867), 364, 751 Petersen Baking Co. _v._ Bryan, 290 U.S. 570 (1934), 1019 Peterson, Ex parte, 253 U.S. 300 (1920), 512, 527, 892, 894 Petit _v._ Minnesota, 177 U.S. 164 (1900), 1031, 1154 Pettibone _v._ Nichols, 203 U.S. 192 (1906), 695, 696 Peyroux _v._ Howard, 7 Pet. 324 (1833), 577 Phalen _v._ Virginia, 8 How. 163 (1850), 358 Phelps _v._ Board of Education, 300 U.S. 319 (1937), 341, 1146 Phelps _v._ United States, 274 U.S. 341 (1927), 872 Phelps Dodge Corp. _v._ National Labor Relations Bd., 313 U.S. 177 (1941), 854 Philadelphia, B. & W.R. Co. _v._ Schubert, 224 U.S. 603 (1912), 855 Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912), 501, 588, 590, 855 Philadelphia & Reading Ry. Co. _v._ McKibbin, 243 U.S. 264 (1917), 1075 Philadelphia & R.R. _v._ Pennsylvania, 15 Wall. 232 (1873), 180, 193, 198, 200 Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326 (1887), 200, 204, 366 Phillips _v._ Comr. of Internal Revenue, 283 U.S. 589 (1931), 110, 849 Phillips _v._ Dime Trust & Safe Deposit Co., 284 U.S. 160 (1931), 320 Phillips _v._ Payne, 92 U.S. 130 (1876), 301 Phillips _v._ United States, 312 U.S. 246 (1941), 631 Phillips Co. _v._ Walling, 324 U.S. 490 (1945), 157 Phillips Petroleum Co. _v._ Jenkins, 297 U.S. 629 (1936), 344 Phillips Petroleum Co. _v._ Oklahoma, ibid., 190 (1950), 1026 Phipps _v._ Cleveland Refining Co., 261 U.S. 449 (1923), 184 Phoenix F. & M. Insurance Co. _v._ Tennessee, 161 U.S. 174 (1896), 347 Picard _v._ East Tennessee Virginia & Georgia R. Co., 130 U.S. 637 (1889), 347 Pickard _v._ Pullman Southern Car Co., 117 U.S. 34 (1886), 202 Pierce _v._ Carskadon, 16 Wall. 234 (1873), 327, 328 Pierce _v._ Creecy, 210 U.S. 387 (1908), 695 Pierce _v._ Society of Sisters, 268 U.S. 510 (1925), 765, 981, 984 Pierce _v._ United States, 160 U.S. 355 (1896), 843 Pierce _v._ United States, 252 U.S. 239 (1920), 775, 794 Pierce Oil Corp. _v._ Hope, 248 U.S. 498 (1919), 1029 Pierce Oil Corp. _v._ Hopkins, 264 U.S. 137 (1924), 1061 Pierce Oil Corp. _v._ Phoenix Ref. Co., 259 U.S. 125 (1922), 1009 Pierre _v._ Louisiana, 306 U.S. 354 (1939), 1098, 1168 Pietro Campanella, The, 73 F. Supp. 18 (1947), 1174 Pink _v._ A.A.A. Highway Express, 314 U.S. 201 (1941), 680 Pinkerton _v._ United States, 328 U.S. 640 (1946), 840 Pipe Line Cases. _See_ United States _v._ Ohio Oil Co. Piqua Branch of the State Bank _v._ Knoop, 16 How. 369 (1854), 342 Pitney _v._ Washington, 240 U.S. 387 (1916), 184, 1019 Pittman _v._ Home Owners' Loan Corp., 308 U.S. 21 (1939), 309, 733 Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894), 201, 1053, 1058, 1140 Pittsburgh, C.C. & St. L.R. Co. _v._ Board of Public Works, 172 U.S. 32 (1898), 1058 Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577 (1895), 124, 183 Pizitz Dry Goods Co. _v._ Yeldell, 274 U.S. 112 (1927), 1092 Plaquemines Tropical Fruit Co. _v._ Henderson, 170 U.S. 511 (1898), 620 Pleasants _v._ Fant, 22 Wall. 116 (1875), 896 Plessy _v._ Ferguson, 163 U.S. 537 (1896), 952, 1162 Plumley _v._ Massachusetts, 155 U.S. 461 (1894), 239, 241 Plummer _v._ Coler, 178 U.S. 115 (1900), 730 Plymouth Coal Co. _v._ Pennsylvania, 232 U.S. 531 (1914), 987 Poe _v._ Seaborn, 282 U.S. 101 (1930), 110 Poindexter _v._ Greenhow, 114 U.S. 270 (1885), 326, 356, 931, 933 Polish Alliance _v._ Labor Board, 322 U.S. 643 (1944), 173 Polk _v._ Mutual Reserve Fund Life Association, 207 U.S. 310 (1907), 1023 Pollard _v._ Hagan, 3 How. 212 (1845), 130, 698, 699, 700 Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429 (1895), 106, 317, 541, 565, 1191-1193 Pollock _v._ Farmers' Loan & Trust Co., 158 U.S. 601 (1895), 319, 565, 1191-1193 Pollock _v._ Williams, 322 U.S. 4 (1944), 951 Ponzi _v._ Fessenden, 258 U.S. 254 (1922), 634 Poole _v._ Fleeger, 11 Pet. 185 (1837), 367, 370 Pope Mfg. Co. _v._ Gormully Mfg. Co., 144 U.S. 238 (1892), 273 Pope _v._ United States, 323 U.S. 1 (1944), 117, 311, 536 Pope _v._ Williams, 193 U.S. 621 (1904), 971, 1165 Poresky, Ex parte, 290 U.S. 30 (1933), 1033 Portland Railway, Light & Power Co. _v._ Railroad Com. of Oregon, 229 U.S. 397 (1913), 358 Port Richmond & Bergen Point Ferry Co. _v._ Bd. of Chosen Freeholders, 234 U.S. 317 (1914), 231 Portsmouth Harbor Land & Hotel Co. _v._ United States, 250 U.S. 1 (1919), 867 Portsmouth Harbor Land & Hotel Co. _v._ United States, 260 U.S. 327 (1922), 496, 867, 1065, 1068 Postal Teleg. Cable Co. _v._ Adams, 155 U.S. 688 (1895), 203 Postal Teleg. Cable Co. _v._ New Hope, 192 U.S. 55 (1904), 214 Postal Teleg. Cable Co. _v._ Newport, 247 U.S. 464 (1918), 1088 Postal Teleg. Cable Co. _v._ Richmond, 249 U.S. 252 (1919), 232 Postal Teleg. Cable Co. _v._ Taylor, 192 U.S. 64 (1904), 214 Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927), 514, 536, 623 Potter _v._ United States, 155 U.S. 438 (1894), 884 Potts _v._ Creager, 155 U.S. 597 (1895), 273 Pound _v._ Turck, 95 U.S. 459 (1878), 231 Powell _v._ Alabama, 287 U.S. 45 (1932), 1098, 1099, 1101, 1108, 1133 Powell _v._ Pennsylvania, 127 U.S. 678 (1888), 976, 977, 1030 Power Comm'n. _v._ Pipeline Co., 315 U.S. 575 (1942), 998, 1007, 1008 Power Mfg. Co. _v._ Saunders, 274 U.S. 490 (1927), 1167 Prentis _v._ Atlantic Coast Line Co., 211 U.S. 210 (1908), 631, 1009 Presser _v._ Illinois, 116 U.S. 252 (1886), 366, 813, 971 Preston _v._ Manard, 116 U.S. 661 (1886), 273 Price _v._ Illinois, 238 U.S. 446 (1915), 1031, 1154 Price _v._ Johnston, 334 U.S. 266 (1948), 313, 315 Price _v._ Pennsylvania R. Co., 113 U.S. 218 (1885), 270 Prigg _v._ Pennsylvania, 16 Pet. 539 (1842), 72, 73, 427, 636, 637, 694, 696, 737 Prince _v._ Massachusetts, 321 U.S. 158 (1944), 563, 768 Princess Lida of Thurn & Taxis _v._ Thompson, 305 U.S. 456 (1939), 627 Principality of Monaco _v._ Mississippi, 292 U.S. 313 (1934), 609 Prize Cases, The, 2 Black 635 (1863), 283, 390 Propper _v._ Clark, 337 U.S. 472 (1949), 627 Prosser _v._ Northern P.R. Co., 152 U.S. 59 (1894), 231 Prout _v._ Starr, 188 U.S. 537 (1903), 629, 931 Providence Bank _v._ Billings, 4 Pet. 514 (1830), 339, 345, 563 Providence & N.Y.S.S. Co. _v._ Hill Mfg. Co., 109 U.S. 578 (1883), 130 Provident Inst. for Savings _v._ Malone, 221 U.S. 660 (1911), 1020 Provident Inst. for Savings _v._ Massachusetts, 6 Wall. 611 (1868), 730 Provident Sav. Life Assur. Soc. _v._ Kentucky, 239 U.S. 103 (1915), 1055 Provo Bench Canal & Irrig. Co. _v._ Tanner, 239 U.S. 323 (1915), 1066 Prudential Ins. Co. _v._ Cheek, 259 U.S. 530 (1922), 771, 992, 1158 Prudential Insurance Co. _v._ Benjamin, 328 U.S. 408 (1946), 127, 176, 198, 214 Public Bank, Ex Parte, 278 U.S. 101 (1928), 631 Public Clearing House _v._ Coyne, 194 U.S. 497 (1904), 269, 805, 847, 859 Public Service Co. _v._ Corboy, 250 U.S. 153 (1919), 931 Public Utilities Com. _v._ Attleboro Steam & Electric Co., 273 U.S. 83 (1927), 138, 233 Public Utilities Com. _v._ Landon, 249 U.S. 236 (1919), 233 Public Utilities Commission _v._ Pollak, 343 U.S. 451 (1952), 785 Public Utility Commissioners _v._ New York Telegh. Co., 271 U.S. 23 (1926), 1008 Public Utility Comrs. _v._ Ynchausti & Co., 251 U.S. 401 (1920), 846 Puget Sound Power & Light Co. _v._ Seattle, 291 U.S. 619 (1934), 1039, 1148, 1149 Puget Sound Stevedoring Co. _v._ Tax Commission of Washington, 302 U.S. 90 (1937), 195, 204, 207 Puget Sound Traction, Light & P. Co. _v._ Reynolds, 244 U.S. 574 (1917), 349 Pullman Co. _v._ Adams, 189 U.S. 420 (1903), 196 Pullman Co. _v._ Kansas ex rel. Coleman, 216 U.S. 56 (1910), 196 Pullman Co. _v._ Knott, 235 U.S. 23 (1914), 1061 Pullman Co. _v._ Richardson, 261 U.S. 330 (1923), 200 Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891), 199, 201, 211, 1052 Pumpelly _v._ Green Bay Company, 13 Wall. 166 (1872), 1065, 1068 Pure Oil Co. _v._ Minnesota, 248 U.S. 158 (1918), 214, 238 Purity Extract & Tonic Co. _v._ Lynch, 226 U.S. 192 (1912), 1032 Pyle _v._ Kansas, 317 U.S. 213 (1942), 1125, 1126 Q Quackenbush _v._ United States, 177 U.S. 20 (1900), 460 Quaker City Cab Co. _v._ Pennsylvania, 277 U.S. 389 (1928), 1149 Quarles, In re, 158 U.S. 532 (1895), 309, 967 Queenside Hills Realty Co. _v._ Saxl, 328 U.S. 80 (1946), 1029, 1155 Quick Bear _v._ Leupp, 210 U.S. 50 (1908), 764 Quicksall _v._ Michigan, 339 U.S. 660 (1950), 1107 Quirin, Ex parte, 317 U.S. 1 (1942), 286, 401, 404, 838 Quong Wing _v._ Kirkendall, 223 U.S. 59 (1912), 1148, 1149 Quon Quon Poy _v._ Johnson, 273 U.S. 352 (1927), 846, 852 R Radice _v._ New York, 264 U.S. 292 (1924), 1159 Radio Comm. _v._ Nelson Bros. Co., 289 U.S. 266 (1933), 788 Ragan _v._ Merchants Transfer & W. Co., 337 U.S. 530 (1949), 608 Rahrer, In re, 140 U.S. 545 (1891), 218, 219, 239 Rail & River Coal Co. _v._ Yaple, 236 U.S. 338 (1915), 988 Railroad Co. _v._ Georgia, 98 U.S. 359 (1879), 347 Railroad Co. _v._ Grant, 98 U.S. 398 (1879), 615 Railroad Co. _v._ Husen, 95 U.S. 465 (1878), 236 Railroad Co. _v._ McClure, 10 Wall. 511 (1871), 329 Railroad Co. _v._ Peniston, 18 Wall. 5 (1873), 200, 732 Railroad Commission _v._ Eastern Texas R. Co., 264 U.S. 79 (1924), 1011 Railroad Commission _v._ Oil Co., 310 U.S. 573 (1940), 1025 R.R. Commission _v._ Humble Oil & Refining Co., 311 U.S. 578 (1941), 1025 R.R. Commission _v._ Oil Co., 311 U.S. 570 (1941), 1025, 1071 R.R. Commission _v._ Pacific Gas Co., 302 U.S. 388 (1938), 1007 Railroad Retirement Board _v._ Alton R. Co., 295 U.S. 330 (1935), 142, 564, 862 Railroad Retirement Board _v._ Duquesne Warehouse Company, 326 U.S. 446 (1946), 143 Railway Express Agency _v._ New York, 336 U.S. 106 (1949), 227, 564, 854, 1033, 1134 Railway Mail Assn. _v._ Corsi, 326 U.S. 88 (1945), 270, 993 Rainey _v._ United States, 232 U.S. 310 (1914), 102 Rakes _v._ United States, 212 U.S. 55 (1909), 309 Randall _v._ Baltimore & O.R. Co., 109 U.S. 478 (1883), 896 Rapier, In re, 143 U.S. 110 (1892), 167, 168 Rassmussen _v._ United States, 197 U.S. 516 (1905), 703, 877, 879 Rast _v._ Van Deman & Lewis, 240 U.S. 342 (1916), 184, 1019 Rathbun, Executor _v._ United States (Humphrey _v._ United States, 295 U.S. 602 (1935)), 458 Ratterman _v._ Western Union Teleg. Co., 127 U.S. 411 (1888), 204, 207 Rawlins _v._ Georgia, 201 U.S. 638 (1906), 1111, 1169 Ray _v._ Blair, 343 U.S. 214 (1952), 386, 942-944 Raymond _v._ Chicago Union Traction Co., 207 U.S. 20 (1907), 1152 Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894), 630, 931, 933, 999, 1001 Reagan _v._ Mercantile Trust Co., 154 U.S. 413 (1894), 725 Real Silk Hosiery Mills _v._ Portland, 268 U.S. 325 (1925), 187 Rearick _v._ Pennsylvania, 203 U.S. 507 (1906), 187 Reaves _v._ Ainsworth, 219 U.S. 296 (1911), 847 Reckendorfer _v._ Faber, 92 U.S. 347 (1876), 272, 273 Red "C" Oil Mfg. Co. _v._ Board of Agriculture, 222 U.S. 380 (1912), 183, 214 Red Cross Line _v._ Atlantic Fruit Co., 264 U.S. 109 (1924), 579 Red River Valley Nat. Bank _v._ Craig, 181 U.S. 548 (1901), 355 Reed, Ex parte, 100 U.S. 13 (1879), 847 Reed _v._ Director General of Railroads, 258 U.S. 92 (1922), 141 Rees _v._ Watertown, 19 Wall 107 (1874), 357, 1074 Reeside _v._ Walker, 11 How. 272 (1851), 324 Reetz _v._ Michigan, 188 U.S. 505 (1903), 328, 1024, 1138 Reggel, Ex parte, 114 U.S. 642 (1885), 695 Reichelderfer _v._ Quinn, 287 U.S. 315 (1932), 870 Reichert _v._ Felps, 6 Wall. 160 (1868), 421 Reid _v._ Colorado, 187 U.S. 137 (1902), 248 Reily _v._ Lamar, 2 Cr. 344 (1805), 302 Reiman, In re, 20 Fed. Cas. No. 11,673 (1874), 263 Reinecke _v._ Smith, 289 U.S. 172 (1933), 863, 864 Reinman _v._ Little Rock, 237 U.S. 171 (1915), 1028 Reitz _v._ Mealey, 314 U.S. 33 (1941), 265, 1033 Renaud _v._ Abbott, 116 U.S. 277 (1886), 659 Republic of Colombia, Ex parte, 195 U.S. 604 (1904), 610 Republic of Peru, Ex parte, 318 U.S. 578 (1943), 474 Rescue Army _v._ Municipal Court of Los Angeles, 331 U.S. 549 (1947), 562 Respublica _v._ Oswald, 1 Dall. 319 (1788), 771 Reynolds _v._ Crawfordsville First Nat. Bank, 112 U.S. 405 (1884), 895 Reynolds _v._ Stockton, 140 U.S. 254 (1891), 659, 678 Reynolds _v._ United States, 98 U.S. 145 (1879), 704, 759, 766, 877, 880, 884 Rhode Island _v._ Massachusetts, 12 Pet. 657 (1838), 311, 370, 592, 593, 612, 618 Rhode Island _v._ Palmer, 253 U.S. 350 (1920), 712 Rhode Island Hospital Trust Co. _v._ Doughton, 270 U.S. 69 (1926), 1046 Rhodes _v._ Iowa, 170 U.S. 412 (1898), 239 Ribnik _v._ McBride, 277 U.S. 350 (1928), 997 Ricaud _v._ American Metal Co., 246 U.S. 304 (1918), 474 Rice _v._ Chicago Board of Trade, 331 U.S. 247 (1947), 250 Rice _v._ Elmore, 165 F. (2d) 387 (1947), 1185 Rice _v._ Elmore, 333 U.S. 875 (1948), 1185 Rice _v._ M. & N.W.R. Co., 1 Bl. 358 (1862), 619 Rice _v._ Olson, 324 U.S. 786 (1945), 1102, 1103, 1108 Rice _v._ Rice, 336 U.S. 674 (1949), 669 Rice _v._ Santa Fe Elevator Corp., 331 U.S. 218 (1947), 251, 724 Richards _v._ Washington Terminal Co., 233 U.S. 546 (1914), 867 Richfield Oil Corp. _v._ State Board of Equalization, 329 U.S. 69 (1946), 204 Richmond & A.R. Co. _v._ Patterson Tobacco Co., 169 U.S. 311 (1898), 223 Richmond, F. & P.R. Co. _v._ Richmond, 96 U.S. 521 (1878), 1014, 1156 Rickert Rice Mills _v._ Fontenot, 297 U.S. 110 (1936), 590 Riehle _v._ Margolies, 279 U.S. 218 (1929), 524, 627 Riggs _v._ Del Drago, 317 U.S. 95 (1942), 110 Riley _v._ Massachusetts, 232 U.S. 671 (1914), 986, 987 Riley _v._ New York Trust Company, 315 U.S. 343 (1942), 672 Rindge Co. _v._ Los Angeles County, 262 U.S. 700 (1923), 866, 1065 Ritchie _v._ McMullen, 159 U.S. 235 (1895), 685 Riverdale Cotton Mills _v._ Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905), 628, 660 Riverside Mills _v._ Menefee, 237 U.S. 189 (1915), 1074, 1077 Riverside Oil Co. _v._ Hitchcock, 190 U.S. 316 (1903), 501 Road Improv. Dist. _v._ Missouri P.R. Co., 274 U.S. 188 (1927), 1041, 1153 RoBards _v._ Lamb, 127 U.S. 58 (1888), 1082 Robbins _v._ Shelby County Taxing District, 120 U.S. 489 (1887), 186, 189, 191 Roberts _v._ New York, 295 U.S. 264 (1935), 1067 Roberts _v._ Reilly, 116 U.S. 80 (1885), 694, 695 Roberts _v._ Richland Irrig. Co., 289 U.S. 71 (1933), 1040 Robertson _v._ Baldwin, 165 U.S. 275 (1897), 636, 770, 774, 884, 952 Robertson _v._ Pickrell, 109 U.S. 608 (1883), 656, 673 Robertson _v._ California, 328 U.S. 440 (1946), 127 Robinson, Ex parte, 19 Wall. 505 (1874), 515 Roche _v._ McDonald, 275 U.S. 449 (1928), 655, 657 Rochester R. Co. _v._ Rochester, 205 U.S. 236 (1907), 347 Rochin _v._ California, 342 U.S. 165 (1952), 843, 1121, 1124 Rockefeller _v._ United States, 257 U.S. 176 (1921), 1195 Rodd _v._ Heartt (The "Lottawanna"), 21 Wall. 558 (1875), 130, 579 Rodman _v._ Pothier, 264 U.S. 399 (1924), 695 Rodney _v._ Hoey, 53 F. Supp. 604 (1944), 1197 Roe _v._ Kansas ex rel. Smith, 278 U.S. 191 (1929), 1065 Rogers _v._ Alabama, 192 U.S. 226 (1904), 658 Rogers _v._ Arkansas, 227 U.S. 401 (1913), 187 Rogers _v._ Hennepin County, 240 U.S. 184 (1916), 1044 Rogers _v._ Peck, 199 U.S. 425 (1905), 1141 Rogers _v._ United States, 141 U.S. 548 (1891), 897 Rogers _v._ United States, 340 U.S. 367 (1951), 842, 843, 844 Rogers Park Water Co. _v._ Fergus, 180 U.S. 624 (1901), 349 Roland Co. _v._ Walling, 326 U.S. 657 (1946), 158, 173 Roller _v._ Holly, 176 U.S. 398 (1900), 1088 Rolston _v._ Missouri Fund Commissioners, 120 U.S. 390 (1887), 932 Romeu _v._ Todd, 206 U.S. 358 (1907), 704 Rooney _v._ North Dakota, 196 U.S. 319 (1905), 327, 328 Root _v._ Woolworth, 150 U.S. 401 (1893), 629 Rorick _v._ Commissioners, 307 U.S. 208 (1939), 631 Roschen _v._ Ward, 279 U.S. 337 (1929), 1030 Rosen _v._ United States, 161 U.S. 29 (1896), 884 Rosenberg Bros. & Co. _v._ Curtis Brown Co., 260 U.S. 516 (1923), 1076 Rosenberger _v._ Pacific Exp. Co., 241 U.S. 48 (1916), 219 Rosengrant, Ex parte, 213 Ala. 202 (1925), 582 Rosengrant _v._ Havard, 273 U.S. 664 (1927), 582 Rosenthal _v._ New York, 226 U.S. 260 (1912), 1024 Ross, In re, 140 U.S. 453 (1891), 60, 427, 430, 533, 877 Ross _v._ Oregon, 227 U.S. 150 (1913), 327, 329 Rowan _v._ Runnels, 5 How. 134 (1847), 604 Royal Arcanum _v._ Green, 237 U.S. 531 (1915), 678 Royall, Ex parte, 117 U.S. 241 (1886), 633 Royster Guano Co. _v._ Virginia, 253 U.S. 412 (1920), 1150, 1152 Rubber-Tip Pencil Co. _v._ Howard, 20 Wall. 498 (1874), 272, 273 Ruddy _v._ Rossi, 248 U.S. 104 (1918), 702 Ruhlin _v._ New York Life Ins. Co., 304 U.S. 202 (1938), 608 Rumely _v._ United States, 197 F. 2d 166, 174-175 (1952), 810 Runkle _v._ United States, 122 U.S. 543 (1887), 476, 477 Ruppert _v._ Caffey, 251 U.S. 264 (1920), 293 Russian Volunteer Fleet _v._ United States, 282 U.S. 481 (1931), 865 Ruthenberg _v._ United States, 245 U.S. 480 (1918), 880 Rutkin _v._ United States, 343 U.S. 130 (1952), 1201 S Sacher _v._ United States, 343 U.S. 1 (1952), 519 Safe Deposit and Trust Co. _v._ Virginia, 280 U.S. 83 (1929), 1044 Sage Stores _v._ Kansas, 323 U.S. 32 (1944), 1031 Saia _v._ New York, 334 U.S. 558 (1948), 563, 785, 788 St. Anthony Falls Water Power Co. _v._ Board of Water Commissioners, 168 U.S. 349 (1897), 362 St. Clair _v._ Cox, 106 U.S. 350 (1882), 1077 St. Germain _v._ Brunswick, 135 U.S. 227 (1890), 273 St. John _v._ New York, 201 U.S. 633 (1906), 1154 St. Joseph Stock Yards Co. _v._ United States, 298 U.S. 38 (1936), 850, 860 St. Lawrence, The, 1 Bl. 522 (1862), 579 St. Louis & K.C. Land Co. _v._ Kansas City, 241 U.S. 419 (1916), 893, 1059 St. Louis & O'Fallon Ry. _v._ United States, 279 U.S. 461 (1929), 1006 St. Louis & S.F.R. Co. _v._ James, 161 U.S. 545 (1896), 369, 602 St. Louis & S.F.R. Co. _v._ Mathews, 165 U.S. 1 (1897), 345, 1015, 1156 St. Louis & S.F.R. Co. _v._ Middlekamp, 256 U.S. 226 (1921), 1152 St. Louis & S.F.R. Co. _v._ Public Service Com., 261 U.S. 369 (1923), 221 St. Louis & S.F.R. Co. _v._ Public Service Com., 254 U.S. 535 (1921), 219, 221 St. Louis Cotton Compress Co. _v._ Arkansas, 260 U.S. 346 (1922), 1056 St. Louis, I.M. & S.R. Co. _v._ Arkansas, 240 U.S. 518 (1916), 223, 1014 St. Louis, I.M. & S.R. Co. _v._ Edwards, 227 U.S. 265 (1913), 247 St. Louis, I.M. & S.R. Co. _v._ Paul, 173 U.S. 404 (1899), 988 St. Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281 (1908), 78, 616 St. Louis, I.M. & S.R. Co. _v._ Williams, 251 U.S. 63 (1919), 1015 St. Louis, I.M. & S.R. Co. _v._ Wynne, 224 U.S. 354 (1912), 1015 St. Louis Poster Advertising Co. _v._ St. Louis, 249 U.S. 269 (1919), 1029 St. Louis, S.F. & T.R. Co. _v._ Seale, 229 U.S. 156 (1913), 141 St. Louis, S.W.R. Co. _v._ Alexander, 227 U.S. 218 (1913), 1076, 1077 St. Louis, S.W.R. Co. _v._ Arkansas, 217 U.S. 136 (1910), 222 St. Louis, S.W.R. Co. _v._ Arkansas ex rel. Norwood, 235 U.S. 350 (1914), 1051 St. Louis, S.W. Ry. Co. _v._ United States, 245 U.S. 136 (1917), 861 St. Pierre _v._ United States, 319 U.S. 41 (1943), 545 Salinger _v._ Loisel, 265 U.S. 224 (1924), 315, 881 Salinger _v._ United States, 272 U.S. 542 (1926), 884 Salomon _v._ State Tax Commission, 278 U.S. 484 (1929), 1038 Salt Co. _v._ East Saginaw, 13 Wall. 373 (1872), 342 Samuel, The, 1 Wheat. 9 (1816),, 576 Samuels _v._ McCurdy, 267 U.S. 188 (1925), 327, 1087 Sanborn, In re, 148 U.S. 222 (1893), 514, 550 Sanders _v._ Armour Fertilizer Works, 292 U.S. 190 (1934), 684 San Diego Land & Town Co. _v._ Jasper, 189 U.S. 439 (1903), 1002, 1006 San Diego Land & Town Company _v._ National City, 174 U.S. 739 (1899), 1002, 1006 Sands _v._ Manistee R. Imp. Co., 123 U.S. 288 (1887), 231, 699 Sanitary District of Chicago _v._ United States, 266 U.S. 405 (1925), 920 Santa Clara County _v._ Southern P.R. Co., 118 U.S. 394 (1886), 1143, 1146 Santa Cruz Fruit Packing Co. _v._ N.L.R.B., 303 U.S. 453 (1938),, 155 Santiago _v._ Nogueras, 214 U.S. 260 (1909), 404, 493 Santovincenzo _v._ Egan, 284 U.S. 30 (1931), 439 Sapphire, The, 11 Wall. 164 (1871), 610 Sarah, The, 8 Wheat. 391 (1823), 575, 893 Satterlee _v._ Matthewson, 2 Pet. 380 (1829), 336, 343 Sauer _v._ New York, 206 U.S. 536 (1907), 331, 1068 Sanders _v._ Armour Fertilizer Works, 292 U.S. 190 (1934), 684 Saunders _v._ Shaw, 244 U.S. 317 (1917), 1088 Saunders _v._ Wilkins, 152 F. (2d) 235 (1945), 1172 Saunders _v._ Wilkins, 328 U.S. 870 (1946), 1172 Saunders _v._ Wilkins, 329 U.S. 825 (1946), 1172 Savage _v._ Jones, 225 U.S. 501 (1912), 183, 238, 241, 248 Savings & Loan Association _v._ Topeka, 20 Wall. 655 (1875), 975 Savings & L. Soc. _v._ Multnomah County, 169 U.S. 421 (1898), 1044 Sawyer _v._ Kochersperger, 170 U.S. 303 (1898), 567 Sawyer _v._ Piper, 189 U.S. 154 (1903), 1091 Sawyer, In re, 124 U.S. 200 (1888), 630 Schaefer _v._ United States, 251 U.S. 466 (1920), 774, 794 Schechter Poultry Corporation _v._ United States, 295 U.S. 495 (1935), 75, 76, 78, 153, 917 Schenck _v._ United States, 249 U.S. 47 (1919), 297, 772, 773, 774, 776, 794, 799 Scher _v._ United States, 305 U.S. 251 (1938),, 830 Schick _v._ United States, 195 U.S. 65 (1904), 878 Schmidinger _v._ Chicago, 226 U.S. 578 (1913), 982, 1018, 1019, 1154 Schneider _v._ Irvington (State), 308 U.S. 147 (1939), 563, 786, 788 Schneiderman _v._ United States, 320 U.S. 118 (1943), 257 Schnell _v._ Davis, 336 U.S. 933 (1949), 1186 Schoenthal _v._ Irving Trust Co., 287 U.S. 92 (1932), 895 Scholey _v._ Rew, 23 Wall. 331 (1875), 319 Schollenberger _v._ Pennsylvania, 171 U.S. 1 (1898), 240, 364 Schooner Betsey, The, 4 Cr. 443 (1808), 575 Schooner Sally, The, 2 Cr. 406 (1805), 575 Schulte _v._ Gangi, 328 U.S. 108 (1946), 158 Schuylkill Trust Co. _v._ Pennsylvania, 302 U.S. 506 (1938), 571, 1044 Schwab _v._ Berggren, 143 U.S. 442 (1892), 1127 Schwab _v._ Richardson, 263 U.S. 88 (1923), 1051 Schwabacher _v._ United States, 334 U.S. 182 (1948), 251 Scott _v._ Donald, 165 U.S. 58 (1897), 931 Scott _v._ Donald, 165 U.S. 107 (1897), 931 Scott _v._ McNeal, 154 U.S. 34 (1894), 330, 1072 Scott _v._ Neely, 140 U.S. 106 (1891), 895 Scott _v._ Sandford (Dred Scott Case), 19 How. 393 (1857), 60, 61, 254, 312, 687, 688, 845, 846, 963, 964, 972 Scottish Union & Nat. Ins. Co. _v._ Bowland, 196 U.S. 611 (1905), 1062 Scranton _v._ Wheeler, 179 U.S. 141 (1900), 588 Screws _v._ United States, 325 U.S. 91 (1945), 882, 1176 Scully _v._ Bird, 209 U.S. 481 (1908), 931 Seaboard Air Line R. Co. _v._ Blackwell, 244 U.S. 310 (1917), 223 Seaboard Air Line R. Co. _v._ Daniel, 333 U.S. 118 (1948), 251 Seaboard Air Line R. Co. _v._ Railroad Commission, 240 U.S. 324 (1916), 1013 Seaboard Air Line R. Co. _v._ United States, 254 U.S. 57 (1920), 861 Seaboard Air Line R. Co. _v._ Watson, 287 U.S. 86 (1932), 1156 Searight _v._ Stokes, 3 How. 151 (1845), 268 Seattle _v._ Oregon & W.R. Co., 255 U.S. 56 (1921), 128 Secombe, Ex parte, 19 How. 9 (1857), 528 Second Employers' Liability Cases (Mondou _v._ New York, N.H. & H.R. Co.), 223 U.S. 1 (1912), 125, 739 Second Williams Case, 325 U.S. 279 (1945), 663, 665 Securities Exchange Commission _v._ Chenery Corp., 332 U.S. 194 (1947), 856 Security Mut. L. Ins. Co. _v._ Prewitt, 202 U.S. 246 (1906), 198, 638 Security Sav. Bank _v._ California, 263 U.S. 282 (1923), 355 Sei Fujii _v._ State of California, 242 P. 2d 617 (1952), 417 Selective Draft Law Cases, 245 U.S. 366 (1918), 285 Selig _v._ Hamilton, 234 U.S. 652 (1914), 355, 678 Selliger _v._ Kentucky, 213 U.S. 200 (1909), 364 Selover, Bates & Co. _v._ Walsh, 226 U.S. 112 (1912), 965 Semler _v._ Oregon State Dental Examiners, 294 U.S. 608 (1935), 1024, 1155 Senior _v._ Braden, 295 U.S. 422 (1935), 1045 Senn _v._ Tile Layers Protective Union, 301 U.S. 468 (1937), 991, 992 Sentell _v._ New Orleans & C.R. Co., 166 U.S. 698 (1897), 1035 Serè _v._ Pitot, 6 Cr. 332 (1810), 302, 703 Seton Hall College _v._ South Orange, 242 U.S. 100 (1916), 343 Seufert Bros. Co. _v._ United States, 249 U.S. 194 (1919), 700 Sewing Machine Companies, 18 Wall. 553 (1874), 619 Seymour _v._ Osborne, 11 Wall. 516 (1871), 272 Shaffer _v._ Carter, 252 U.S. 37 (1920), 209, 693, 1054, 1150 Shallenberger _v._ First State Bank, 219 U.S. 114 (1911), 1020 Shanks _v._ Delaware L. & W.R. Co., 239 U.S. 556 (1916), 141 Shanks _v._ Dupont, 3 Pet. 242 (1830), 258 Shapiro _v._ United States, 335 U.S. 1 (1948), 827, 828, 844 Sharp _v._ United States, 191 U.S. 341 (1903), 870 Shaw _v._ Gibson-Zahniser Oil Corp., 276 U.S. 575 (1928), 735 Sheehan Co. _v._ Shuler, 265 U.S. 371 (1924), 990 Sheldon _v._ Sill, 8 How. 441 (1850), 512, 619, 620 Shelley _v._ Kraemer, 334 U.S. 1 (1948), 1142, 1161 Shelton _v._ Platt, 139 U.S. 591 (1891), 621 Shelton _v._ Tiffin, 6 How. 163 (1848), 601 Shenfield _v._ Nashawannuck Mfg. Co., 137 U.S. 56 (1890), 273 Shepherd _v._ Florida, 341 U.S. 50 (1951), 1098, 1168 Sheppard _v._ Taylor, 5 Pet. 675 (1831), 574 Sherlock _v._ Alling, 93 U.S. 99 (1876), 575 Sherrer _v._ Sherrer, 334 U.S. 343 (1948), 668, 669 Shields _v._ Coleman, 157 U.S. 168 (1895), 627 Shields _v._ Ohio, 95 U.S. 319 (1877), 344 Shields _v._ Thomas, 18 How. 253 (1856), 893 Shields _v._ Utah, Idaho R. Co., 305 U.S. 185 (1938), 623 Shively _v._ Bowlby, 152 U.S. 1 (1894), 130, 700 Shoemaker _v._ United States, 147 U.S. 282 (1893), 301, 303, 452, 866, 872 Shoener _v._ Pennsylvania, 207 U.S. 188 (1907), 1133 Shreveport Case, The (Houston E. & W.T.R. Co. _v._ United States), 234 U.S. 342 (1914), 135, 219 Shriver _v._ Woodbine Sav. Bank, 285 U.S. 467 (1932), 1035 Shurtleff _v._ United States, 189 U.S. 311 (1903), 460 Siebold, Ex parte, 100 U.S. 371 (1880), 93, 94, 452, 495, 722, 738 Silas Mason Co. _v._ Tax Commission of Washington, 302 U.S. 186 (1937), 307 Siler _v._ L. & N.R. Co., 213 U.S. 175 (1909), 562 Silesian-American Corp. _v._ Clark, 332 U.S. 469 (1947), 295, 865 Silver _v._ Silver, 280 U.S. 117 (1929),, 1155 Silver Thorne Lumber Co. _v._ United States, 251 U.S. 385 (1920), 831 Silz _v._ Hesterberg, 211 U.S. 31 (1908), 217, 246, 1027 Simmons _v._ Saul, 138 U.S. 439 (1891), 660, 674 Simmons _v._ United States, 142 U.S. 148 (1891), 839 Simms _v._ Simms, 175 U.S. 162 (1899), 703 Simon _v._ Southern R. Co., 236 U.S. 115 (1915), 629, 660, 1073, 1076 Simons, In re, 247 U.S. 231 (1918), 895 Simpson _v._ Shepard (Minnesota Rate Cases), 230 U.S. 352 (1913), 177, 222, 235, 1000, 1002 Sinclair _v._ United States, 279 U.S. 263 (1929), 84, 85, 311, 493 Sinclair & Carroll Co. _v._ Interchemical Corp., 325 U.S. 327 (1945), 272 Singer Sewing Machine Co. _v._ Brickell, 233 U.S. 304 (1914), 184 Sinking Fund Cases (Central P.R. Co. _v._ Gallatin & Union P.R. Co. _v._ United States), 99 U.S. 700, (1879), 362, 563, 981 Sinnot _v._ Davenport, 22 How. 227 (1859), 229 Sioux City Bridge Co. _v._ Dakota County, 260 U.S. 441 (1923), 1152 Sioux Remedy Co. _v._ Cope, 235 U.S. 197 (1914), 234 Sioux Tribe _v._ United States, 316 U.S. 317 (1942), 702 Sipuel _v._ Oklahoma, 332 U.S. 631 (1948), 1163 Siren, The, 7 Wall. 152 (1869), 586, 610 Siren, The, 13 Wall. 389 (1871), 296, 575 Sistare _v._ Sistare, 218 U.S. 1 (1910), 655, 671 Six Companies of California _v._ Highway Dist, 311 U.S. 180 (1940), 608 Six Hundred Twenty Church Street Bldg. Corp., In re, 299 U.S. 24 (1936),, 858 Skaneateles Waterworks Co. _v._ Skaneateles, 184 U.S. 354 (1902), 349, 1009 Skinner _v._ Oklahoma, 316 U.S. 535 (1942), 1156, 1161 Skinner & Eddy Corp., Ex parte, 265 U.S. 86 (1924), 895 Skiriotes _v._ Florida, 313 U.S. 69 (1941), 325 Slaughter-House Cases, 16 Wall. 36 (1873), 686, 687, 752, 949, 965, 972, 974, 985, 1143, 1160 Sligh _v._ Kirkwood, 237 U.S. 52 (1915), 243, 982, 983, 1027, 1030 Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549 (1922), 289, 310, 586 Slocum _v._ New York Life Insurance Company, 228 U.S. 364 (1913), 896 Smiley _v._ Holm, 285 U.S. 355 (1932), 93, 548 Smiley _v._ Kansas, 196 U.S. 447 (1905), 1017 Smith _v._ Adams, 130 U.S. 167 (1889), 539 Smith _v._ Alabama, 124 U.S. 465 (1888), 222 Smith _v._ Allwright, 321 U.S. 649 (1944), 565, 566, 1142, 1164, 1185, 1186 Smith _v._ Cahoon, 283 U.S. 553 (1931), 228, 1032, 1145, 1156 Smith _v._ Davis, 323 U.S. 111 (1944), 730 Smith _v._ Illinois Bell Teleph. Co., 270 U.S. 587 (1926), 1002 Smith _v._ Indiana, 191 U.S. 138 (1903), 540, 982 Smith _v._ Interstate Commerce Comm., 245 U.S. 33 (1917), 84 Smith _v._ Kansas City Title & Trust Co., 255 U.S. 180 (1921), 114, 267, 309, 541 Smith _v._ Maryland, 18 How. 71 (1855), 576, 751 Smith _v._ Nichols, 21 Wall. 112 (1875), 272 Smith _v._ O'Grady, 312 U.S. 329 (1941), 1099, 1101, 1108 Smith _v._ Reeves, 178 U.S. 436 (1900), 588, 930, 935, 936 Smith _v._ St. Louis, & S.W.R. Co., 181 U.S. 248 (1901), 236 Smith _v._ Texas, 233 U.S. 630 (1914), 1024 Smith _v._ Texas, 311 U.S. 128 (1940), 1098, 1168 Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849), 192, 216, 242, 323 Smith _v._ Whitman Saddle Co., 148 U.S. 674 (1893), 273 Smith _v._ Whitney, 116 U.S. 167 (1886), 286, 482 Smith _v._ Wilson, 273 U.S. 388 (1927), 631 Smithsonian Institution _v._ St. John, 214 U.S. 19 (1909), 676 Smoot Sand & Gravel Corp. _v._ Washington Airport, 283 U.S. 348 (1931), 301 Smyth _v._ Ames, 169 U.S. 466 (1898), 630, 931, 933, 981, 1000, 1005, 1006, 1007 Snowden _v._ Hughes, 321 U.S. 1 (1944), 971, 1035, 1142, 1165 Snyder _v._ Bettman, 190 U.S. 249 (1903), 107 Snyder _v._ Marks, 109 U.S. 189 (1883), 541, 621 Snyder _v._ Massachusetts, 291 U.S. 97 (1934), 1089, 1096, 1110, 1112, 1128, 1132, 1133 Society for Savings _v._ Coite, 6 Wall. 594 (1868), 730 Sola Electric Co. _v._ Jefferson Electric Co., 317 U.S. 173 (1942), 724 Solesbee _v._ Balkcom, 339 U.S. 9 (1950), 1129, 1135 Soliah _v._ Heskin, 222 U.S. 522 (1912), 1036, 1059 Sonneborn Eros. _v._ Cureton, 262 U.S. 506 (1923), 184, 239 Sonzinsky _v._ United States, 300 U.S. 506 (1937), 111 Soon Hing _v._ Crowley, 113 U.S. 703 (1885), 1029 Soper _v._ Lawrence Bros. Co., 201 U.S. 359 (1906), 1093 South _v._ Peters, 339 U.S. 276 (1950), 548, 1165 South Carolina _v._ Bailey, 289 U.S. 412 (1933), 695 South Carolina _v._ Gaillard, 101 U.S. 433 (1880), 355 South Carolina _v._ Georgia, 93 U.S. 4 (1876), 128, 322 South Carolina _v._ United States, 199 U.S. 437 (1905), 107 South Carolina _v._ Wesley, 155 U.S. 542 (1895), 931 South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. 177 (1938), 177, 218, 227, 982 South Covington & C. Street R. Co. _v._ Covington, 235 U.S. 537 (1915), 219, 223 South Covington & C. St. By. Co. _v._ Newport, 259 U.S. 97 (1922), 567 South Dakota _v._ North Carolina, 192 U.S. 286 (1904), 593, 930 Southern Iowa Electric Co. _v._ Chariton, 255 U.S. 539 (1921), 349 Southern Natural Gas Corp. _v._ Alabama, 301 U.S. 148 (1937), 198 Southern Pacific Co. _v._ Arizona, 325 U.S. 761 (1945), 177, 217, 223, 225, 724 Southern Pacific Co. _v._ Campbell, 230 U.S. 537 (1913), 349 Southern Pacific Co. _v._ Denton, 146 U.S. 202 (1892), 638 Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939), 186 Southern Pacific Co. _v._ Jensen, 244 U.S. 205 (1917), 580, 583, 625 Southern Pacific Co. _v._ Kentucky, 222 U.S. 63 (1911), 1052 Southern Pacific Co. _v._ Lowe, 247 U.S. 330 (1918), 1193 Southern R. Co. _v._ Burlington Lumber Co., 225 U.S. 99 (1912), 247 Southern R. Co. _v._ Greene, 216 U.S. 400 (1910), 1149, 1150 Southern R. Co. _v._ Kentucky, 274 U.S. 76 (1927), 202 Southern R. Co. _v._ King, 217 U.S. 524 (1910), 220, 224 Southern R. Co. _v._ Painter, 314 U.S. 155 (1941), 629 Southern R. Co. _v._ Puckett, 244 U.S. 571 (1917), 141 Southern R. Co. _v._ Railroad Comm., 236 U.S. 439 (1915), 247 Southern R. Co. _v._ Reid, 222 U.S. 424 (1912), 247, 248 Southern R. Co. _v._ United States, 222 U.S. 20 (1911), 139 Southern Realty Co. _v._ Walker, 211 U.S. 603 (1909), 603 Southern S.S. Co. _v._ National Labor Relations Board, 316 U.S. 31 (1942), 577 Southern S.S. Co. _v._ Portwardens, 6 Wall. 31 (1867), 366 Southwestern Bell Telephone Co. _v._ Oklahoma, 303 U.S. 206 (1938), 570 Southwestern Bell Telephone Co. _v._ Pub. Serv. Comm., 262 U.S. 276 (1923), 1006 Southwestern Oil Co. _v._ Texas, 217 U.S. 114 (1910), 1036, 1149 Southwestern Teleg. & Teleph. Co. _v._ Danaher, 238 U.S. 482 (1915), 1016 Sovereign Camp _v._ Bolin, 305 U.S. 66 (1938), 678 Spalding & Bros. _v._ Edwards, 262 U.S. 66 (1923), 321 Sparf _v._ United States, 156 U.S. 51 (1895), 896 Spaulding _v._ Vilas, 161 U.S. 483 (1896), 501 Spector Motor Service _v._ McLaughlin, 323 U.S. 101 (1944), 562 Spector Motor Service _v._ O'Connor, 340 U.S. 602 (1951), 209 Spies _v._ Illinois, 123 U.S. 131 (1887), 752 Spokane & I.E.R. Co. _v._ Whitley, 237 U.S. 487 (1915), 658 Spokane County _v._ United States, 279 U.S. 80 (1929), 722 Spragins _v._ Houghton, 3 Ill. 377 (1840), 258 Spreckels Sugar Refining Co. _v._ McClain, 192 U.S. 397 (1904), 319 Springer _v._ Philippine Islands, 277 U.S. 189 (1928), 459 Springer _v._ United States, 102 U.S. 586 (1881), 319, 849, 1191 Springville _v._ Thomas, 166 U.S. 707 (1897), 892 Sproles _v._ Binford, 286 U.S. 374 (1932), 227, 1033, 1155 Sprott _v._ United States, 20 Wall. 459 (1874), 640, 643 Sprout _v._ South Bend, 277 U.S. 163 (1928), 197, 212, 1033 S.R.A., Inc. _v._ Minnesota, 327 U.S. 558 (1946), 306 Stack _v._ Boyle, 342 U.S. 1 (1951), 904 Stacy _v._ Thrasher, use of Sellers, 6 How. 44 (1848), 654, 660, 672 Stafford _v._ Wallace, 258 U.S. 495 (1922), 120, 149 Stamey _v._ United States, 37 F. (2d) 188 (1929), 895 Standard Oil Co. _v._ Graves, 249 U.S. 389 (1919), 184, 239 Standard Oil Co. _v._ Marysville, 279 U.S. 582 (1929), 1029 Standard Oil Co. _v._ Missouri ex rel. Hadley, 224 U.S. 270 (1912), 1140, 1141 Standard Oil Co. _v._ New Jersey, 341 U.S. 428 (1951), 1034 Standard Oil Co. _v._ Tennessee ex rel. Cates, 217 U.S. 413 (1910), 1160 Stanley _v._ Public Utilities Commission, 295 U.S. 76 (1935), 1032 Stanley _v._ Schwalby, 162 U.S. 255 (1896), 587 Stanton _v._ Baltic Mining Co., 240 U.S. 103 (1916), 319, 320, 1192 State _v._ McClure, 7 Boyce (Del.) 265; 105 A. 712 (1919), 952 State _v._ Mittle, 120 S.C. 526 (1922), 1220 State _v._ Mittle, 260 U.S. 705 (1922), 1220 State Bank of Ohio _v._ Knoop, 16 How. 369 (1854), 330 State Board of Equalization _v._ Young's Market Co., 299 U.S. 59 (1936), 241, 1231, 1232 State Corp. Commission _v._ Wichita Gas Co., 290 U.S. 561 (1934), 138 State Farm Ins. Co. _v._ Duel, 324 U.S. 154 (1945), 680, 1016 State Freight Tax Case. _See_ Philadelphia & R.R. Co. _v._ Pennsylvania. State Industrial Board of N.Y. _v._ Terry & Trench Co., 273 U.S. 639 (1926), 582 State of Minnesota _v._ Chicago, M. & St. Paul R. Co., 38 Minn. 281 (1888), 77 State Tax Commission _v._ Aldrich, 316 U.S. 174 (1942), 1045, 1047 State Tax Commission _v._ Interstate Natural Gas Co., 284 U.S. 41 (1931), 182, 195 State Tax Comm'n. _v._ Van Cott, 306 U.S. 511 (1939), 731 State Tax Comrs. _v._ Jackson, 283 U.S. 527 (1931), 1148, 1149 Staten Island R.T.R. Co. _v._ Phoenix Indemnity Co., 281 U.S. 98 (1930), 990 Steamship Appam, The, 243 U.S. 124 (1917), 418 Stearns _v._ Minnesota, 179 U.S. 223 (1900), 330, 344, 367, 699, 700 Stebbins _v._ Riley, 268 U.S. 137 (1925), 1037, 1045 Steele _v._ Louisville & N.R. Co., 323 U.S. 192 (1944), 854 Steele _v._ United States, No. 1, 267 U.S. 498 (1925), 825 Steele, Ex parte, 162 Fed. 694 (1908), 545 Stefanelli _v._ Minard, 342 U.S. 117 (1951), 1124 Stelle _v._ Carroll, 12 Pet. 201 (1838), 302 Stellwagen _v._ Clum, 245 U.S. 605 (1918), 264, 265 Stephan _v._ United States, 319 U.S. 423 (1943), 615 Stephan _v._ United States, 133 F. (2d) 87 (1943), 643 Stephenson _v._ Binford, 287 U.S. 251 (1932), 1032 Sterling _v._ Constantin, 287 U.S. 378 (1932), 484, 931, 934 Stettler _v._ O'Hara, 243 U.S. 629 (1917), 980 Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398 (1944), 82, 397 Stevens _v._ Gladding, 17 How. 447 (1855), 275 Stevenson _v._ Fain, 195 U.S. 165 (1904), 620 Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937), 115, 116, 724, 853, 863, 918 Stewart _v._ B. & O.R. Co., 168 U.S. 445 (1897), 676 Stewart _v._ Foster, 2 Binney's (Pa.) 110 (1809), 258 Stewart _v._ Kahn, 11 Wall. 493 (1871), 293 Stewart _v._ Kansas City, 239 U.S. 14 (1915), 982, 1036 Stewart _v._ Keyes, 295 U.S. 403 (1935), 1093 Stewart _v._ Michigan, 232 U.S. 665 (1914), 187 Stewart Dry Goods Co. _v._ Lewis, 294 U.S. 550 (1935), 1037, 1149 Stilson _v._ United States, 250 U.S. 583 (1919), 880 Stipcich _v._ Metropolitan L. Ins. Co., 277 U.S. 311 (1928), 1021 Stockard _v._ Morgan, 185 U.S. 27 (1902), 187 Stockdale _v._ Atlantic Ins. Co., 20 Wall. 323 (1874), 863 Stockholders _v._ Sterling, 300 U.S. 175 (1937), 1141 Stoehr _v._ Wallace, 255 U.S. 239 (1921), 295, 865 Stoll _v._ Gottlieb, 305 U.S. 165 (1938), 570 Stone _v._ Farmers' Loan & Trust Co. (Railroad Commission Cases), 116 U.S. 307 (1886), 349 Stone _v._ Mississippi ex rel. Harris, 101 U.S. 814 (1880), 351, 358, 1031 Stoner _v._ New York Life Ins. Co., 311 U.S. 464 (1940), 608 Storaasli _v._ Minnesota, 283 U.S. 57 (1931), 1155 Stoughton _v._ Baker et al., 4 Mass. 522 (1808), 338 Stoutenburgh _v._ Hennick, 129 U.S. 141 (1889), 122, 187, 304 Strassheim _v._ Daily, 221 U.S. 280 (1911), 695 Stratton's Independence _v._ Howbert, 231 U.S. 399 (1914), 1192 Strauder _v._ West Virginia, 100 U.S. 303 (1880), 1176 Straus _v._ Foxworth, 231 U.S. 162 (1913), 982, 1062 Strauss, In re, 197 U.S. 324 (1905), 695 Strawbridge _v._ Curtiss, 3 Cr. 267 (1806), 601 Strickley _v._ Highland Boy Gold Mining Co., 200 U.S. 527 (1906), 1065 Stroble _v._ California, 343 U.S. 181 (1952), 1121 Stromberg _v._ California, 283 U.S. 359 (1931), 773, 778 Strother _v._ Lucas, 12 Pet. 410 (1838), 418 Stroud _v._ United States, 251 U.S. 15 (1919), 824 Stuart _v._ Laird, 1 Cr. 299 (1803), 529 Sturges _v._ Crowninshield, 4 Wheat. 122 (1819), 264, 334, 355, 555 Sturges & B. Mfg. Co. _v._ Beauchamp, 231 U.S. 320 (1914), 987 Sugarman _v._ United States, 249 U.S. 182 (1919), 297 Sugar Trust Case, The (United States _v._ E.C. Knight Co.), 156 U.S. 1 (1895), 153 Sugg _v._ Hendrix, 142 F. (2d) 740 (1944), 1074 Sugg _v._ Thornton, 132 U.S. 524 (1889), 1074 Sullivan _v._ Kidd, 254 U.S. 433 (1921), 416 Sullivan _v._ United States, 274 U.S. 259 (1950), 843 Sully _v._ American Nat. Bank, 178 U.S. 289 (1900), 1144 Sultan Ry. & Timber Co. _v._ Dept. of Labor, 277 U.S. 135 (1928), 582 Summers, In re, 325 U.S. 561 (1945), 768 Sunday Lake Iron Co. _v._ Wakefield Twp., 247 U.S. 350 (1918), 1152 Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940), 75, 76, 111, 564, 853, 855 Superintendent _v._ Commissioner, 295 U.S. 418 (1935), 1171 Superior Bath House Co. _v._ McCarroll, 312 U.S. 176 (1941), 731 Superior Oil _v._ Mississippi ex rel. Knox, 280 U.S. 390 (1930), 189 Surplus Trading Co. _v._ Cook, 281 U.S. 647 (1930), 305, 307 Susquehanna & Wyoming V.R. & C. Co. _v._ Blatchford, 11 Wall. 172 (1871), 611 Susquehanna Coal Co. _v._ South Amboy, 228 U.S. 665 (1913), 185 Susquehanna Power Co. _v._ State Tax Comm'n., 283 U.S. 291 (1931), 732 Sutton _v._ Leib, 342 U.S. 402 (1952), 671 Swafford _v._ Templeton, 185 U.S. 487 (1902), 87 Swaim _v._ United States, 165 U.S. 553 (1897), 286, 404 Swanson _v._ Marra Bros., 328 U.S. 1 (1946), 583 Sweatt _v._ Painter, 339 U.S. 629 (1950), 1162 Sweet _v._ Rechel, 159 U.S. 380 (1895), 1063 Swift _v._ McPherson, 232 U.S. 51 (1914), 656, 684 Swift _v._ Tyson, 16 Pet. 1 (1842), 603, 604, 605, 606, 607 Swift & Co. _v._ United States, 196 U.S. 375 (1905), 120, 147, 148 T Taft _v._ Bowers, 278 U.S. 470 (1929), 1198 Takahashi _v._ Fish & Game Comm'n., 334 U.S. 410 (1948), 417, 1158 Tameling _v._ United States Freehold & Emigration Co., 93 U.S. 644 (1877), 702 Tanner _v._ Little, 240 U.S. 369 (1916), 184, 1019 Tayloe _v._ Thomson, 5 Pet. 358 (1831), 302 Taylor _v._ Alabama, 335 U.S. 252 (1948), 1119 Taylor _v._ Beckham, 178 U.S. 548 (1900), 705, 982 Taylor _v._ Carryl, 20 How. 583 (1857), 575, 625, 627 Taylor _v._ Georgia, 315 U.S. 25 (1942), 951 Taylor _v._ Mississippi, 319 U.S. 583 (1943), 768 Taylor _v._ Morton, 23 Fed. Cas. No. 13,799 (1855), 420, 426 Taylor _v._ Secor (State Railroad Tax Cases), 92 U.S. 575 (1876), 1058 Taylor _v._ Taintor, 16 Wall. 366 (1873), 694, 695 Taylor _v._ Thomas, 22 Wall. 479 (1875), 728 Taylor _v._ United States, 207 U.S. 120 (1907), 839 Taylor _v._ United States, 286 U.S. 1 (1932), 824 Taylor _v._ Ypsilanti, 105 U.S. 60 (1882), 331 Teal _v._ Felton, 12 How. 284 (1852), 636 Teamsters' Union _v._ Hanke, 339 U.S. 470 (1950), 782 Ten East Fortieth St. Co. _v._ Callus, 325 U.S. 578 (1945), 158 Tennessee _v._ Davis, 100 U.S. 257 (1880), 311, 501, 569, 632, 722, 728 Tennessee _v._ Sneed, 96 U.S. 69 (1877), 355 Tennessee _v._ Union & Planters' Bank, 152 U.S. 454 (1894), 567 Tennessee _v._ Whitworth, 117 U.S. 139 (1886), 347 Tennessee Coal Co. _v._ George, 233 U.S. 354 (1914), 677 Tennessee Electric Power Co. _v._ Tennessee Valley Authority, 306 U.S. 118 (1939) 590, 909 Tenney _v._ Brandhove, 341 U.S. 367 (1951), 100 Terlinden _v._ Ames, 184 U.S. 270 (1902), 473 Terminal R. Asso. _v._ Brotherhood of R.R. Trainmen, 318 U.S. 1 (1943), 219, 220, 223 Terminiello _v._ Chicago, 337 U.S. 1 (1949), 778, 792 Terrace _v._ Thompson, 263 U.S. 197 (1923), 417, 934, 981, 1158 Terral _v._ Burke Construction Co., 257 U.S. 529 (1922), 638 Terrett _v._ Taylor, 9 Cr. 43 (1815), 338 Terry _v._ Anderson, 95 U.S. 628 (1877), 355 Testa _v._ Katt, 330 U.S. 386 (1947), 637, 724, 727 Texas _v._ Florida, 306 U.S. 398 (1939), 593, 594, 1049 Texas _v._ Interstate Commerce Commission, 258 U.S. 158 (1922), 544, 613 Texas _v._ White, 7 Wall. 700 (1869), 299, 704, 728 Texas & N.O.R. Co. _v._ Brotherhood of Railway & S.S. Clerks, 281 U.S. 548 (1930), 142, 855 Texas & N.O.R. Co. _v._ Miller, 221 U.S. 408 (1911), 676 Texas & P.R. Co. _v._ Rigsby, 241 U.S. 33 (1916), 139 Texas & P.R. Co. _v._ Southern P. Co., 137 U.S. 48 (1890), 656 Texas & P. Ry. Co. _v._ United States, 286 U.S. 285 (1932), 1197 Texas Co. _v._ Brown, 258 U.S. 466 (1922), 184, 239 Thames & Mersey Ins. Co. _v._ United States, 237 U.S. 19 (1915), 322 Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946), 854, 1131 Thirty Hogsheads of Sugar _v._ Boyle, 9 Cr. 191 (1815), 575 Thomas _v._ Collins, 323 U.S. 516 (1945), 563, 783, 788, 789, 809 Thomas _v._ Gay, 169 U.S. 264 (1898), 432 Thomas _v._ Kansas City Southern R. Co., 261 U.S. 481 (1923), 1153 Thomas _v._ Richmond, 12 Wall. 349 (1871), 728 Thomas _v._ United States, 192 U.S. 363 (1904), 319 Thomas Jefferson, The, 10 Wheat. 428 (1825), 576, 578 Thompson _v._ Central Ohio R. Co., 6 Wall. 134 (1868), 895 Thompson _v._ Consolidated Gas Utilities Corp., 300 U.S. 55 (1937), 1025 Thompson _v._ Darden, 198 U.S. 310 (1905), 323 Thompson _v._ Lee County, 3 Wall. 327 (1866), 331 Thompson _v._ Missouri, 171 U.S. 380 (1898), 329 Thompson _v._ Roe ex dem. Carroll, 22 How. 422 (1860), 304 Thompson _v._ Thompson, 226 U.S. 551 (1913), 657, 663 Thompson _v._ Union P.R. Co., 9 Wall. 579 (1870), 732 Thompson _v._ United States, 142 U.S. 471 (1892), 321 Thompson _v._ United States, 155 U.S. 271 (1894), 839 Thompson _v._ Utah, 170 U.S. 343 (1898), 329, 879 Thompson _v._ Whitman, 18 Wall. 457 (1874), 661 Thomson _v._ Pacific Railroad, 9 Wall. 579 (1870), 132 Thorington _v._ Montgomery, 147 U.S. 490 (1893), 1141 Thorington _v._ Smith, 8 Wall. 1 (1869), 640, 1174 Thormann _v._ Frame, 176 U.S. 350 (1900), 678 Thornhill _v._ Alabama, 310 U.S. 88 (1940), 563, 777, 781, 782 Thornton _v._ Duffy, 254 U.S. 361 (1920), 990 Thornton _v._ United States, 271 U.S. 414 (1926), 919 Thorpe _v._ Rutland & Burlington Railroad, 27 Vt. 140 (1854), 345 Thurlow _v._ Massachusetts, 5 How. 504 (1847), 124 Tidal Oil Co. _v._ Flanagan, 263 U.S. 444 (1924), 329, 332 Tiernan _v._ Rinker, 102 U.S. 123 (1880), 185 Tiger _v._ Western Investment Co., 221 U.S. 286 (1911), 864 Tigner _v._ Texas, 310 U.S. 141 (1940), 1160 Tilt _v._ Kelsey, 207 U.S. 43 (1907), 672 Tilton, The, 23 Fed. Cas. No. 14,054 (1830), 574 Tindal _v._ Wesley, 167 U.S. 204 (1897), 588, 931, 934 Tinsley _v._ Anderson, 171 U.S. 101 (1898), 634, 1096 Tinsley _v._ Treat, 205 U.S. 20 (1907), 881 Titus _v._ Wallick, 306 U.S. 282 (1939), 657 Todok _v._ Union State Bank, 281 U.S. 449 (1930), 416 Toledo Newspaper Co. _v._ United States, 247 U.S. 402 (1918), 516, 518, 784 Tomkins _v._ Missouri, 323 U.S. 485 (1945), 1100, 1101, 1102 Tomlinson _v._ Branch, 15 Wall. 460 (1873), 931 Tonawanda _v._ Lyon, 181 U.S. 389 (1901), 1036, 1059 Toombs _v._ Citizens Bank, 281 U.S. 643 (1930), 1085 Toomer _v._ Witsell, 334 U.S. 385 (1948), 181, 245, 690 Tot _v._ United States, 319 U.S. 463 (1943), 849 Totten _v._ United States, 92 U.S. 105 (1876), 404 Toucey _v._ New York Life Insurance Co., 314 U.S. 118 (1941), 627, 628, 629 Townsend _v._ Burke, 334 U.S. 736 (1948), 1106, 1108 Townsend _v._ Yeomans, 301 U.S. 441 (1937), 250, 996 Tracy _v._ Ginzberg, 205 U.S. 170 (1907), 1140 Trade Mark Cases, 100 U.S. 82 (1879), 122 Transportation Co. _v._ Parkersburg, 107 U.S. 691 (1883), 210, 214 Transportation Line _v._ Hope, 95 U.S. 297 (1877), 896 Travelers Health Assn. _v._ Virginia, 339 U.S. 643 (1950), 1079 Travelers' Ins. Co. _v._ Connecticut, 185 U.S. 364 (1902), 693 Travis _v._ Yale & Towne Mfg. Co., 252 U.S. 60 (1920), 687, 692, 1054, 1061, 1150 Treasury of Indiana _v._ Wood Preserving Corp., 313 U.S. 62 (1941), 198, 204 Treat _v._ White, 181 U.S. 264 (1901), 863 Treat Mfg. Co. _v._ Standard Steel & Iron Co., 157 U.S. 674 (1895), 896 Tregea _v._ Modesto Irrigation District, 164 U.S. 179 (1896), 540 Treichler _v._ Wisconsin, 338 U.S. 251 (1949), 1045 Treigle _v._ Acme Homestead Asso., 297 U.S. 189 (1936), 983 Treinies _v._ Sunshine Mining Co., 308 U.S. 66 (1939), 603, 934 Trenton _v._ New Jersey, 262 U.S. 182 (1923), 340, 609, 982, 1036 Trinityfarm Const. Co. _v._ Grosjean, 291 U.S. 466 (1934), 731 Truax _v._ Corrigan, 257 U.S. 312 (1921), 991, 992, 1142, 1145, 1166 Truax _v._ Raich, 239 U.S. 33 (1915), 931, 934, 1158 Trupiano _v._ United States, 334 U.S. 699 (1948), 829 Trusler _v._ Crooks, 269 U.S. 475 (1926), 918 Tua _v._ Carriere, 117 U.S. 201 (1886), 264 Tucker _v._ Alexandroff, 183 U.S. 424 (1902), 433, 493 Tucker _v._ Texas, 326 U.S. 517 (1946), 786 Tulee _v._ Washington, 315 U.S. 681 (1942), 701 Tumey _v._ Ohio, 273 U.S. 510 (1927), 1131 Turner _v._ Bank of North America, 4 Dall. 8 (1799), 617 Turner _v._ Maryland, 107 U.S. 38 (1883), 364 Turner _v._ New York, 168 U.S. 90 (1897), 1093 Turner _v._ Pennsylvania, 338 U.S. 62 (1949), 1120, 1121 Turner _v._ Williams, 194 U.S. 279 (1904), 259 Turpin _v._ Lemon, 187 U.S. 51 (1902), 1057 Turpin & Bro. _v._ Burgess, 117 U.S. 504 (1886), 321, 322 Tutun _v._ United States, 270 U.S. 568 (1926), 624 Twin City Nat. Bank _v._ Nebeker, 167 U.S. 196 (1897), 102 Twining _v._ New Jersey, 211 U.S. 78 (1908), 752, 843, 845, 967, 971, 1071, 1084, 1111, 1112, 1116, 1118 Twitchell _v._ Pennsylvania, 7 Wall. 321 (1869), 751 Tyee Realty Co. _v._ Anderson, 240 U.S. 115 (1916), 1192 Tyler, In re, 149 U.S. 164 (1893), 933 Tyler _v._ Defrees, 11 Wall. 331 (1871), 299 Tyler _v._ Judges of the Court of Registration, 179 U.S. 405 (1900), 982 Tyler _v._ United States, 281 U.S. 497 (1930), 320, 540, 864 Tyson & Bros.--United Theatre Ticket Offices _v._ Banton, 273 U.S. 418 (1927), 996 U Ughbanks _v._ Armstrong, 208 U.S. 481 (1908), 1133, 1161 Underwood Typewriter Co. _v._ Chamberlain, 254 U.S. 113 (1920), 209, 1054 Unemployment Comm'n. _v._ Aragon, 329 U.S. 143 (1946), 78 Union Bridge Co. _v._ United States, 204 U.S. 364 (1907), 78, 128 Union Brokerage Co. _v._ Jensen, 322 U.S. 202 (1944), 234, 250 Union National Bank _v._ Lamb, 337 U.S. 38 (1949), 657 Union Pacific R. Co. _v._ Pub. Service Comm., 248 U.S. 67 (1918), 197 Union P.R. Co. _v._ United States (Sinking Fund Cases), 99 U.S. 700 (1879), 846 Union Paper Collar Co. _v._ Van Dusen, 23 Wall. 530 (1875), 272, 273 Union Refrigerator Transit Co. _v._ Kentucky, 199 U.S. 194 (1905) 211, 1041, 1042, 1045, 1052 Union Tank Line _v._ Wright, 249 U.S. 275 (1919), 202, 1053 United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921), 138, 182, 195 United Fuel Gas Co. _v._ Railroad Commission, 278 U.S. 300 (1929), 1011 United Gas Public Service Co. _v._ Texas, 303 U.S. 123 (1938), 570 United Public Workers of America _v._ Mitchell, 330 U.S. 75 (1947), 450, 460, 545, 550, 561, 794, 909 United R. & Electric Co. _v._ West, 280 U.S. 234 (1930), 1007 United States, Ex Parte, 242 U.S. 27 (1916), 407 United States _v._ Abilene & S.R. Co., 265 U.S. 274 (1924), 850 United States _v._ Aczel, 219 F. 917 (1915), 1208 United States _v._ Alford, 274 U.S. 264 (1927), 883 United States _v._ Allegheny County, 322 U.S. 174 (1944), 732 United States _v._ American Bell Tel. Co., 128 U.S. 315 (1888), 584 United States _v._ Amsden, 6 F. 819 (1881), 1186 United States _v._ Anderson, 9 Wall. 56 (1870), 547 United States _v._ Appalachian Electric Power Co., 311 U.S. 377 (1940), 128, 131, 550, 577, 868, 869, 920 United States _v._ Arizona, 295 U.S. 174 (1935), 128 United States _v._ Arjona, 120 U.S. 479 (1887), 278 United States _v._ Arredondo, 6 Pet. 691 (1932), 512 United States _v._ Atchison, T. & S.F.R. Co., 234 U.S. 476 (1914), 137 United States _v._ Athens Armory, 24 Fed. Cas. No. 14,473 (1868), 643 United States _v._ Bailey, 9 Pet. 238 (1835), 636 United States _v._ Ball, 163 U.S. 662 (1896), 839 United States _v._ Ballard, 322 U.S. 78 (1944), 766 United States _v._ Ballin, 144 U.S. 1 (1892), 96, 97, 98 United States _v._ Baltimore & O.R. Co., 17 Wall. 322 (1873), 106, 340 United States _v._ Barnow, 239 U.S. 74 (1915), 309 United States _v._ Bathgate, 246 U.S. 220 (1918), 88 United States _v._ Bausch & L. Optical Co., 321 U.S. 707 (1944), 828 United States _v._ Bayer, 331 U.S. 532 (1947), 840 United States _v._ Beebe, 127 U.S. 338 (1888), 584 United States _v._ Bekins, 304 U.S. 27 (1938), 262, 264 United States _v._ Belmont, 301 U.S. 324 (1937), 437, 439 United States _v._ Bennett, 232 U.S. 299 (1914), 862 United States _v._ Benz, 282 U.S. 304 (1931), 407 United States _v._ Berwind-White Coal Mine Co., 274 U.S. 564 (1927), 861 United States _v._ Bethlehem Steel Corp., 315 U.S. 289 (1942), 289 United States _v._ Bevans, 3 Wheat. 336 (1818), 578 United States _v._ Bitty, 208 U.S. 393 (1908), 615 United States _v._ Brig Malek Adhel, 2 How. 210 (1844), 278 United States _v._ Brime, 272 U.S. 549 (1926), 149 United States _v._ Britton, 108 U.S. 199 (1883), 878 United States _v._ Brooks, 54 F. Supp. 995 (1944), 953 United States _v._ Bryan, 339 U.S. 323 (1950), 86, 98 United States _v._ Burnison, 339 U.S. 87 (1950), 724 United States _v._ Burns, 12 Wall. 246 (1871), 275, 404 United States _v._ Burr, 4 Cr. 470 (1807), 640, 643, 645 United States _v._ Butler, 297 U.S. 1 (1936), 114, 115, 153, 561, 564, 918 United States _v._ California, 297 U.S. 175 (1936), 139, 920 United States _v._ California, 332 U.S. 19 (1947), 163, 325, 585, 700 United States _v._ Capital Transit Co., 338 U.S. 286 (1949), 137 United States _v._ Carll, 105 U.S. 611 (1882), 884 United States _v._ Carmack, 329 U.S. 230 (1946), 865 United States _v._ Carolene Products Co., 304 U.S. 144 (1938), 124, 563, 791, 804, 859, 918 United States _v._ Cathcart, 25 Fed. Cas. No. 14,756 (1864), 643 United States _v._ Causby, 328 U.S. 256 (1946), 867, 1065, 1068 United States _v._ Chamber, 291 U.S. 217 (1934), 545, 1214 United States _v._ Chandler-Dunbar Waterpower Co., 229 U.S. 53 (1913), 128, 130, 869, 870 United States _v._ Chemical Foundation, 272 U.S. 1 (1926), 80, 290, 295, 865 United States _v._ Chicago, M., St. P. & Pac. R. Co., 312 U.S. 592 (1941), 128 United States _v._ C.I.O., 335 U.S. 105 (1948), 565, 793 United States _v._ Clarke, 8 Pet. 436 (1834), 585 United States _v._ Clarke, 20 Wall. 92 (1874), 477 United States _v._ Classic, 313 U.S. 299 (1941) 87, 94, 1164, 1176, 1185 United States _v._ Coe, 155 U.S. 76 (1894), 534 United States _v._ Cohen Grocery Company, 255 U.S. 81 (1921), 881 United States _v._ Commodities Trading Corp., 339 U.S. 121 (1950), 298, 870 United States _v._ Commodore Park, Inc., 324 U.S. 386 (1945), 128, 868 United States _v._ Constantine, 296 U.S. 287 (1935), 110, 111, 919, 1214 United States _v._ Cook, 17 Wall. 168 (1872), 884 United States _v._ Coolidge, 1 Wheat. 415 (1816), 878 United States _v._ Coombs, 12 Pet. 72 (1838), 578 United States _v._ Cooper, 4 Dall. 341 (1800), 99 United States _v._ Cornell, 25 Fed. Cas. No. 14,867 (1819), 307 United States _v._ Cors, 337 U.S. 325 (1949), 298, 870 United States _v._ Corson, 114 U.S. 619 (1885), 404 United States _v._ Cramer, 137 F. (2d) 888 (1943), 643 United States _v._ Cress, 243 U.S. 316 (1917), 128, 869, 1065, 1068 United States _v._ Cruikshank, 92 U.S. 542 (1876), 806, 807, 813, 884, 967, 1183 United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304 (1936), 72, 73, 80, 280, 380, 392, 413, 429 United States _v._ Darby, 312 U.S. 100 (1941) 153, 156, 163, 173, 724, 827, 883, 917, 918 United States _v._ Dawson, 15 How. 467 (1853), 881 United States _v._ De Los Reyes, 3 Phil. 349 (1904), 643 United States _v._ Delaware & H. Co., 213 U.S. 366 (1909), 137, 565 United States _v._ Detroit Timber & Lumber Co., 200 U.S. 321 (1906), 524 United States _v._ De Walt, 128 U.S. 393 (1888), 838 United States _v._ Dewitt, 9 Wall. 41 (1870), 122, 168, 917 United States _v._ Dickinson, 331 U.S. 745 (1947), 867, 869 United States _v._ Di Re, 332 U.S. 581 (1948), 830 United States _v._ Doremus, 249 U.S. 86 (1919), 111 United States _v._ Duell, 172 U.S. 576 (1899), 274 United States _v._ Dunnington, 146 U.S. 338 (1892), 865 United States _v._ Eaton, 144 U.S. 677 (1892), 82, 878 United States _v._ Eckford, 6 Wall. 484 (1868), 586, 619 United States _v._ E.C. Knight Co. (The "Sugar Trust" Case), 156 U.S. 1 (1895), 144, 154 United States _v._ Eliason, 16 Pet. 291 (1842), 302, 477, 482 United States _v._ Evans, 213 U.S. 297 (1909), 545, 839 United States _v._ Farden, 99 U.S. 10 (1879), 477 United States _v._ Felin (J.J.) & Co., 334 U.S. 624 (1948), 870 United States _v._ Ferger, 250 U.S. 199 (1919), 143, 919 United States _v._ Ferreira, 13 How. 40 (1852), 513, 535, 550, 551, 623 United States _v._ Fisher, 2 Cr. 358 (1805), 117, 307, 722 United States _v._ Fisher, 109 U.S. 143 (1883), 341 United States _v._ Fitzgerald, 15 Pet. 407 (1841), 702 United States _v._ Fleischman, 339 U.S. 349 (1950), 86 United States _v._ Fletcher, 148 U.S. 84 (1893), 476, 477 United States _v._ Flores, 3 F. Supp. 134 (1932), 279 United States _v._ Flores, 289 U.S. 137 (1933), 279 United States _v._ Forty-three Gallons of Whiskey, 93 U.S. 188 (1876), 421 United States _v._ Forty-three Gallons of Whiskey, 108 U.S. 491 (1883), 432 United States _v._ Fox, 94 U.S. 315 (1877), 308 United States _v._ Fox, 95 U.S. 670 (1878), 309 United States _v._ Frankfort Distilleries, Inc., 324 U.S. 293 (1945), 1234 United States _v._ Fricke, 259 F. 673 (1919), 643 United States _v._ Furlong, 5 Wheat. 184 (1820), 297, 841 United States _v._ Gale, 109 U.S. 65 (1883), 93, 94 United States _v._ Garbish, 222 U.S. 257 (1911), 855 United States _v._ Gaskin, 320 U.S. 527 (1944), 954 United States _v._ General Motors Corp., 323 U.S. 373 (1945), 298, 871 United States _v._ Germaine, 99 U.S. 508 (1879), 452 United States _v._ Gettysburg Electric R. Co., 160 U.S. 668 (1896), 114, 866 United States _v._ Gordon, 25 Fed. Cas. No. 15,231 (1861), 964 United States _v._ Gradwell, 243 U.S. 476 (1917), 88 United States _v._ Gratiot, 14 Pet. 526 (1840), 701 United States _v._ Great Falls Mfg. Co., 112 U.S. 645 (1884), 872 United States _v._ Greathouse, 26 Fed. Cas. No. 15,254 (1863), 643 United States _v._ Greiner, 26 Fed. Cas. No. 15,262 (1861), 643 United States _v._ Grimaud, 220 U.S. 506 (1911), 76, 82 United States _v._ Hall, 98 U.S. 343 (1879), 309 United States _v._ Hammond, 1 Cr. 15 (1801), 301 United States _v._ Hanway, 26 Fed. Cas. No. 15,299 (1851), 640, 643 United States _v._ Harris, 106 U.S. 629 (1883), 688, 953, 1176 United States _v._ Hartwell, 6 Wall. 385 (1868), 386, 445 United States _v._ Haupt, 136 F. (2d) 661 (1943), 643 United States _v._ Hayman, 342 U.S. 205 (1952), 885 United States _v._ Heinszen & Co., 206 U.S. 370 (1907), 858 United States _v._ Hill, 248 U.S. 420 (1919), 120, 170 United States _v._ Hodges, 26 Fed. Cas. No. 15,374 (1815), 643 United States _v._ Holliday, 3 Wall. 407 (1866), 253 United States _v._ Home Ins. Co., 22 Wall. 99 (1875), 728 United States _v._ Hoxie, 26 Fed. Cas. No. 15,407 (1808), 643 United States _v._ Hudson & Goodwin, 299 U.S. 498 (1937), 863, 878 United States _v._ Hudson & Goodwin, 7 Cr. 32 (1812), 618, 878 United States _v._ Hvoslef, 237 U.S. 1 (1915), 322 United States _v._ Jacobs, 306 U.S. 363 (1939), 864 United States _v._ Jeffers, 342 U.S. 481 (1951), 824 United States _v._ Jefferson Electric Co., 291 U.S. 386 (1934), 550 United States _v._ John J. Felin & Co., 334 U.S. 624 (1948), 298 United States _v._ Johnson, 323 U.S. 273 (1944), 881 United States _v._ Joint-Traffic Assoc., 171 U.S. 505 (1898), 147 United States _v._ Jones, 18 How. 92 (1856), 477 United States _v._ Jones, 109 U.S. 513 (1883), 73, 865, 872 United States _v._ Ju Toy, 198 U.S. 253 (1905), 846, 852 United States _v._ Kagama, 118 U.S. 375 (1886), 73, 253 United States _v._ Kansas City Life Ins. Co., 339 U.S. 799 (1950), 869 United States _v._ Keehler, 9 Wall. 83 (1870), 728 United States _v._ Kirby, 7 Wall. 482 (1869), 270 United States _v._ Klamath Indians, 304 U.S. 119 (1938), 871 United States _v._ Klein, 13 Wall. 128 (1872), 324, 407, 411, 514 United States _v._ Knight (E.C.) Co., 156 U.S. 1 (1895), 144 United States _v._ La Franca, 282 U.S. 568 (1931), 841 United States _v._ Lagnason, 3 Phil. 472 (1904), 643 United States _v._ Landram, 118 U.S. 81 (1886), 895 United States _v._ Lanza, 260 U.S. 377 (1922), 841 United States _v._ Lee, 106 U.S. 196 (1882), 501, 588, 590, 872, 931, 934 United States _v._ Lee, 26 Fed. Cas. No. 15,584 (1814), 586, 587, 643 United States _v._ Lefkowitz, 285 U.S. 452 (1932), 828 United States _v._ Louisiana, 339 U.S. 699 (1950), 585, 700, 894 United States _v._ Lovett, 328 U.S. 303 (1946), 316, 460 United States _v._ Lowden, 308 U.S. 225 (1939), 861 United States _v._ Lynah, 188 U.S. 445 (1903), 865, 869, 1065, 1068 United States _v._ Macintosh, 283 U.S. 605 (1931), 257, 280, 769 United States _v._ Mack, 295 U.S. 480 (1935), 1214 United States _v._ Magtibay, 2 Phil. 703 (1903), 643 United States _v._ Marigold, 9 How. 560 (1850), 161, 266, 309 United States _v._ Masonite Corp., 316 U.S. 265 (1942), 275 United States _v._ Maxwell Land-Grant & R. Co., 121 U.S. 325 (1887), 702 United States _v._ McGratney, 104 U.S. 621 (1882), 699 United States _v._ McGowan, 302 U.S. 535 (1938), 702 United States _v._ McLemore, 4 How. 286 (1846), 586 United States _v._ McMillan, 165 U.S. 504 (1897), 703, 704 United States _v._ Michigan, 190 U.S. 379 (1903), 585 United States _v._ Midwest Oil Co., 236 U.S. 459 (1915), 482, 702 United States _v._ Miller, 307 U.S. 174 (1939), 813 United States _v._ Miller, 317 U.S. 369 (1943), 870 United States _v._ Minnesota, 270 U.S. 181 (1926), 585 United States _v._ Mitchell, 26 Fed. Cas. No. 15,788 (1795), 640, 612 United States _v._ Mitchell, 109 U.S. 146 (1883), 341 United States _v._ Mitchell, 322 U.S. 65 (1944), 843 United States _v._ Monia, 317 U.S. 424 (1943), 842 United States _v._ Montgomery Ward & Co., 150 F. (2d) 369 (1945), 392 United States _v._ Moreland, 258 U.S. 433 (1922), 303, 838 United States _v._ Morton Salt Co., 338 U.S. 632 (1950), 828 United States _v._ Mosley, 238 U.S. 383 (1915), 87, 88, 94, 309 United States _v._ Murdock, 284 U.S. 141 (1931), 842 United States _v._ National Association of Real Estate Boards, 339 U.S. 485 (1950), 840 United States _v._ New River Collieries Co., 262 U.S. 341 (1923), 870 United States _v._ New Wrinkle, Inc., 342 U.S. 371 (1952), 275 United States _v._ New York & C. Mail S.S. Co., 269 U.S. 304 (1925), 859 United States _v._ N.Y. Rayon Importing Co., 329 U.S. 654 (1947), 587 United States _v._ New York Telephone Co., 326 U.S. 638 (1946), 860 United States _v._ Nice, 241 U.S. 591 (1916), 253 United States _v._ North American Co., 253 U.S. 330 (1920), 495 United States _v._ North Carolina, 136 U.S. 211 (1890), 584 United States _v._ Ohio Oil Co., 234 U.S. 548 (1914), 137, 138 United States _v._ Oppenheimer, 242 U.S. 85 (1916), 839 United States _v._ Oregon, 295 U.S. 1 (1935), 703 United States _v._ Oregon State Medical Society, 343 U.S. 326 (1952), 121 United States _v._ Ortega, 11 Wheat. 467 (1826), 571 United States _v._ Pacific Railroad, 120 U.S. 227 (1887), 298 United States _v._ Padelford, 9 Wall. 531 (1870), 407 United States _v._ Palmer, 3 Wheat. 610 (1818), 473 United States _v._ Palmer, 128 U.S. 262 (1888), 275 United States _v._ Paramount Pictures, 334 U.S. 131 (1948), 787 United States _v._ Pennsylvania R. Co., 323 U.S. 612 (1945), 135 United States _v._ Percheman, 7 Pet. 51 (1833), 423 United States _v._ Perez, 9 Wheat. 579 (1824), 839, 1135 United States _v._ Perkins, 116 U.S. 483 (1886), 460 United States _v._ Petrillo, 332 U.S. 1 (1947), 564, 883, 953, 1146 United States _v._ Petty Motor Co., 327 U.S. 372 (1946), 298, 871 United States _v._ Pewee Coal Co., 341 U.S. 114 (1951), 494, 495, 497, 871 United States _v._ Phellis, 257 U.S. 156 (1921), 1195 United States _v._ Pink, 315 U.S. 203 (1942), 438, 497, 722 United States _v._ Potter, 56 Fed. 83 (1892), 881 United States _v._ Powell, 27 Fed. Cas. No. 16,079 (1871), 1173 United States _v._ Powers, 307 U.S. 214 (1939), 317 United States _v._ Price, 116 U.S. 43 (1885), 323 United States _v._ Pryor, 27 Fed Cas. No. 16,096 (1814), 643 United States _v._ Rabinowitz, 339 U.S. 56 (1950), 566, 829 United States _v._ Railroad Bridge Co., 27 Fed. Cas. No. 16,114 (1855), 268 United States _v._ Randenbush, 8 Pet. 288 (1834), 840 United States _v._ Rauscher, 119 U.S. 407 (1886), 418, 696 United States _v._ Ravara, 2 Dall. 297 (1793), 571 United States _v._ Reading Railroad, 123 U.S. 113 (1887), 895 United States _v._ Realty Co., 163 U.S. 427 (1896), 117, 323, 893 United States _v._ Reese, 92 U.S. 214 (1876), 93, 1183, 1186 United States _v._ Regan, 232 U.S. 37 (1914), 878 United States _v._ Reynolds, 235 U.S. 133 (1914), 950 United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899), 128 United States _v._ River Rouge Improv. Co., 269 U.S. 411 (1926), 128 United States _v._ Rizzo, 297 U.S. 530 (1936), 1214 United States _v._ Robinson, 259 F. 685 (1919), 643 United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939), 75, 76, 78, 160, 172, 854, 855 United States _v._ Russell, 13 Wall. 623 (1871), 298, 404, 496, 872 United States _v._ Safety Car Heating & L. Co., 297 U.S. 88 (1936), 1199 United States _v._ Sanchez, 340 U.S. 42 (1950), 111 United States _v._ Sandoval, 231 U.S. 28 (1914), 253, 699 United States _v._ San Francisco, 310 U.S. 16 (1940), 702 United States _v._ Sanges, 144 U.S. 310 (1892), 839 United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888), 584 United States _v._ Saylor, 322 U.S. 385 (1944), 87, 88, 94 United States _v._ Schooner Betsey & Charlotte, 4 Cr. 443 (1808), 576 United States _v._ Schooner Peggy, 1 Cr. 103 (1801), 417, 422 United States _v._ Schooner Sally, 2 Cr. 406 (1805), 576 United States _v._ Schurz, 102 U.S. 378 (1880), 501 United States _v._ Schwimmer, 279 U.S. 644 (1929), 257, 769 United States _v._ Shaw, 309 U.S. 495 (1940), 587 United States _v._ Shipp, 203 U.S. 563 (1906), 520 United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77 (1932), 76, 883 United States _v._ Simmons, 96 U.S. 360 (1878), 884 United States _v._ Simms, 1 Cr. 252 (1803), 302 United States _v._ Sing Tuck, 194 U.S. 161 (1904), 852 United States _v._ Smith, 5 Wheat. 153 (1820), 278 United States _v._ Smith, 286 U.S. 6 (1932), 97, 454 United States _v._ Smith, 331 U.S. 469 (1947), 314 United States _v._ Socony-Vacuum Oil Co., 310 U.S. 150 (1940), 881 United States _v._ South-Eastern Underwriters Association, 322 U.S. 533 (1944), 121, 168, 177, 207, 214 United States _v._ Spector, 343 U.S. 169 (1952), 261, 881 United States _v._ Sponenbarger, 308 U.S. 256 (1939), 867 United States _v._ Sprague, 282 U.S. 716 (1931), 713, 915 United States _v._ Stafoff, 260 U.S. 477 (1923), 1214 United States _v._ Stinson, 197 U.S. 200 (1905), 610 United States _v._ Sullivan, 274 U.S. 259 (1927), 1201 United States _v._ Sullivan, 332 U.S. 689 (1948), 153 United States _v._ Tarble, 13 Wall. 397 (1872), 631, 728 United States _v._ Teller, 107 U.S. 64 (1883), 795 United States _v._ Texas, 143 U.S. 621 (1892), 585, 698 United States _v._ Texas, 339 U.S. 707 (1950), 585, 699, 700 United States _v._ The Thekla, 266 U.S. 328 (1924), 610 United States _v._ Toronto Nav. Co., 338 U.S. 396 (1949), 298, 870 United States _v._ Trans-Missouri Freight Asso., 166 U.S. 290 (1897), 147 United States _v._ United Mine Workers, 330 U.S. 258 (1947), 485, 520, 622 United States _v._ United States Fidelity Co., 309 U.S. 506 (1940), 591 United States _v._ Unzeuta, 281 U.S. 138 (1930), 306, 307 United States _v._ Utah, 283 U.S. 64 (1931), 585 United States _v._ Van Duzee, 140 U.S. 169 (1891), 884 United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795), 640, 642 United States _v._ Waddell, 112 U.S. 76 (1884), 309, 702, 967 United States _v._ Wallace & Tiernan Co., 336 U.S. 793 (1949), 831 United States _v._ Walsh, 331 U.S. 432 (1947), 136, 153 United States _v._ Welch, 217 U.S. 333 (1910), 870 United States _v._ Werner, 247 F. 708 (1918), 643 United States _v._ West Virginia, 295 U.S. 463 (1935), 584, 585 United States _v._ Wheeler, 254 U.S. 281 (1920), 688, 967, 1175 United States _v._ White, 322 U.S. 694 (1944), 827, 844 United States _v._ William, The, 28 Fed. Cas. No. 16,700 (1808), 161 United States _v._ Williams, 302 U.S. 46 (1937), 285 United States _v._ Willow River Power Co., 324 U.S. 499 (1945), 128, 869 United States _v._ Wilson, 7 Pet. 150 (1833), 406, 407, 839 United States _v._ Wiltberger, 5 Wheat. 76 (1820), 646 United States _v._ Winans, 198 U.S. 371 (1905), 700 United States _v._ Wong Kim Ark, 160 U.S. 649 (1898), 964 United States _v._ Wood, 299 U.S. 123 (1936), 879 United States _v._ Worrall, 2 Dall. 384 (1790), 309 United States _v._ Wrightwood Dairy Co., 315 U.S. 110 (1942), 122, 153, 159 United States _v._ Wurzbach, 280 U.S. 396 (1930), 94, 883 United States _v._ Yuginovich, 256 U.S. 450 (1921), 110, 1204 United States _v._ Zucker, 161 U.S. 475 (1896), 878 United States ex rel. Attorney General _v._ Delaware & Hudson Co., 213 U.S. 366 (1909), 861 United States ex rel. Bilokumsky _v._ Tod, 263 U.S. 149 (1923), 885 United States ex rel. Brown _v._ Lane, 232 U.S. 598 (1914), 864 United States ex rel. Burnett _v._ Teller, 107 U.S. 64 (1883), 857 United States ex rel. Creary _v._ Weeks, 259 U.S. 336 (1922), 847 United States ex rel. Dunlap _v._ Black, 128 U.S. 40 (1888), 501 United States ex rel. Goldberg _v._ Daniels, 231 U.S. 218 (1914), 588 United States ex rel. Greathouse _v._ Dern, 289 U.S. 352 (1933), 301 United States ex rel. Knauff _v._ Shaughnessy, 338 U.S. 537 (1950), 852 United States ex rel. McCann _v._ Adams, 320 U.S. 220 (1943), 885 United States ex rel. Milwaukee Publishing Co. _v._ Burleson, 255 U.S. 407 (1921), 860, 904 United States ex rel. Randall _v._ United States Marshal for Eastern Dist. of New York, 143 F. (2d) 830 (1944), 1214 United States ex rel. Riggs _v._ Johnson County, 6 Wall. 166 (1868), 627 United States ex rel. Tisi _v._ Tod, 264 U.S. 131 (1924), 78 United States ex rel. Turner _v._ Fisher, 222 U.S. 204 (1911), 864 United States ex rel. Turner _v._ Williams, 194 U.S. 279 (1904), 874 United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266 (1943), 870 United States ex rel. T.V.A. _v._ Welch, 327 U.S. 546 (1946), 865, 1064 United States ex rel. Vajtauer _v._ Comr. of Immigration, 273 U.S. 103 (1927), 853 United States Exp. Co. _v._ Kountze Bros., 8 Wall. 342 (1869), 311 United States Express Co. _v._ Minnesota, 223 U.S. 335 (1912), 204 United States Glue Co. _v._ Oak Creek, 247 U.S. 321 (1918), 208 United States Mortgage Co. _v._ Matthews, 293 U.S. 232 (1934), 355 United Surety Co. _v._ American Fruit Product Co., 238 U.S. 140 (1915), 848 University of Illinois _v._ United States, 289 U.S. 48 (1933), 107, 162 Untermeyer _v._ Anderson, 276 U.S. 440 (1928), 863 Upshaw _v._ United States, 335 U.S. 410 (1948), 843 Utah Power & Light Co. _v._ Pfost, 286 U.S. 165 (1932), 138, 181, 1051, 1148 Utah Power & Light Co. _v._ United States, 243 U.S. 389 (1917), 702 Utley _v._ St Petersburg, 292 U.S. 106 (1934), 1059 Uveges _v._ Pennsylvania, 335 U.S. 437 (1948), 1100, 1106, 1108, 1109 V Valentine _v._ Chrestensen, 316 U.S. 52 (1942), 786 Valentine _v._ Great A. & P. Tea Co., 299 U.S. 32 (1936), 1149 Vallandigham, Ex parte, 28 Fed. Cas. No. 16,816 (1863), 643 Vallandigham, Ex parte, 1 Wall. 243 (1864), 612 Valvoline Oil Co. _v._ United States, 308 U.S. 141 (1939), 860 Van Brocklin _v._ Tennessee, 117 U.S. 151 (1886), 699, 703, 732 Vance _v._ Vance, 108 U.S. 514 (1883), 355 Vancouver S.S. Co. _v._ Rice, 288 U.S. 445 (1933), 581 Vandenbark _v._ Owens-Illinois Co., 311 U.S. 538 (1941), 608 Van Dyke _v._ Geary, 244 U.S. 39 (1917), 1002 Van Home's Lessee _v._ Dorrance, 2 Dall. 304 (1795), 560 Van Ness _v._ Bank of United States, 13 Pet. 17 (1839), 302 Van Oster _v._ Kansas, 272 U.S. 465 (1926), 1032 Veazie Bank _v._ Fenno, 8 Wall. 533 (1869), 108, 266, 310, 319 Veix _v._ Sixth Ward Building & Loan Ass'n. of Newark, 310 U.S. 32 (1940), 359 Venner _v._ Great Northern R. Co., 209 U.S. 24 (1908), 620 Vial _v._ Penniman, 103 U.S. 714 (1881), 355 Vicksburg _v._ Tobin, 100 U.S. 430 (1880), 366 Vicksburg _v._ Vicksburg Waterworks Co., 202 U.S. 453 (1906), 329 Vicksburg & M.R. Co. _v._ Putnam, 118 U.S. 545 (1886), 895 Vicksburg S. & P.R. Co. _v._ Dennis, 116 U.S. 665 (1886), 348 Viereck _v._ United States, 318 U.S. 236 (1943), 881 Virginia, Ex parte, 100 U.S. 339 (1880), 1176 Virginia _v._ Imperial Sales Co., 293 U.S. 15 (1934), 200 Virginia _v._ Rives, 100 U.S. 313 (1880), 1142, 1168, 1176 Virginia _v._ Tennessee, 148 U.S. 503 (1893), 367, 369 Virginia _v._ West Virginia, 11 Wall. 39 (1871), 369 Virginia _v._ West Virginia, 206 U.S. 290 (1907), 595 Virginia _v._ West Virginia, 209 U.S. 514 (1908), 595 Virginia _v._ West Virginia, 220 U.S. 1 (1911), 593, 595 Virginia _v._ West Virginia, 222 U.S. 17 (1911), 595 Virginia _v._ West Virginia, 231 U.S. 89 (1913), 595 Virginia _v._ West Virginia, 234 U.S. 117 (1914), 595 Virginia _v._ West Virginia, 238 U.S. 202 (1915), 595 Virginia _v._ West Virginia, 241 U.S. 531 (1916), 595 Virginia _v._ West Virginia, 246 U.S. 565 (1918), 356, 370, 595, 593 Virginian R. Co. _v._ System Federation No. 40, 300 U.S. 515 (1937), 142, 540, 622, 855, 859 Voeller _v._ Neilston Co., 311 U.S. 531 (1941), 1083 Voight _v._ Wright, 141 U.S. 62 (1891), 238 Von Hoffman _v._ Quincy, 4 Wall. 535 (1867), 354, 355, 356 Von Moltke _v._ Gillies, 332 U.S. 708 (1948), 885 W Wabash R. Co. _v._ Adelbert College, 208 U.S. 38 (1908), 627 Wabash R. Co. _v._ Defiance, 167 U.S. 88 (1897), 352 Wabash R. Co. _v._ Flannigan, 192 U.S. 29 (1904), 656 Wabash, St. Louis & Pacific R. Co. _v._ Illinois, 118 U.S. 557 (1886), 134, 220 Wachovia Bank & Trust Co. _v._ Doughton, 272 U.S. 567 (1926), 1046 Wade _v._ Hunter, 336 U.S. 684 (1949), 286, 839 Wade _v._ Mayo, 334 U.S. 672 (1948), 634, 1105, 1108, 1109 Wadley Southern R. Co. _v._ Georgia, 235 U.S. 651 (1915), 1013 Waggoner _v._ Flack, 188 U.S. 595 (1903), 355 Wagner _v._ Covington, 251 U.S. 95 (1919), 183, 184, 191, 239 Wagner _v._ Leser, 239 U.S. 207 (1915), 1041 Wagoner _v._ Evans, 170 U.S. 588 (1898), 703 Waite _v._ Macy, 246 U.S. 606 (1918), 590 Wales _v._ Stetson, 2 Mass. 143 (1806), 338 Waley _v._ Johnston, 316 U.S. 101 (1942), 314 Walker _v._ Johnston, 312 U.S. 275 (1941), 314, 885 Walker _v._ McLoud, 204 U.S. 302 (1907), 864 Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593 (1897), 703, 892, 894 Walker _v._ Sauvinet, 92 U.S. 90 (1876), 893, 971, 1096 Walker _v._ Whitehead, 16 Wall. 314 (1873), 332 Wall, Ex parte, 107 U.S. 265 (1883), 528, 847 Wallace _v._ Adams, 204 U.S. 415 (1907), 534 Wallace _v._ Hines, 253 U.S. 66 (1920), 202, 203, 1053 Wallace _v._ United States, 257 U.S. 541 (1922), 404, 460 Wallach _v._ Van Riswick, 92 U.S. 202 (1876), 645 Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1 (1898), 329, 349 Walling _v._ Jacksonville Paper Co. 317 U.S. 564 (1943), 157 Walling _v._ Michigan, 116 U.S. 446 (1886), 185 Walls _v._ Midland Carbon Co., 254 U.S. 300 (1920), 1026 Walsh _v._ Brewster, 255 U.S. 536 (1921), 1199 Walton _v._ Southern Package Corp., 320 U.S. 540 (1944), 157 Ward _v._ Love County, 253 U.S. 17 (1920), 1060 Ward _v._ Maryland, 12 Wall. 418 (1871), 185, 692 Ward _v._ Race Horse, 163 U.S. 504 (1896), 432, 701 Ward _v._ Texas, 316 U.S. 547 (1942), 1113 Ward & Gow _v._ Krinsky, 259 U.S. 503 (1922), 989, 1159 Ware _v._ Hylton, 3 Dall. 199 (1797), 335, 415, 416, 555 Ware _v._ Mobile County, 209 U.S. 405 (1908), 189 Waring _v._ Clarke, 5 How. 441 (1847), 574, 576, 577, 893 Waring _v._ Mobile, 8 Wall. 110 (1869), 364 Warren-Bradshaw Co. _v._ Hall, 317 U.S. 88 (1942), 157 Washington _v._ Dawson & Co., 264 U.S. 219 (1924), 311, 581 Washington _v._ Superior Court, 289 U.S. 361 (1933), 1078 Washington ex rel. Oregon R. & N. Co. _v._ Fairchild, 224 U.S. 510 (1912), 1013 Washington ex rel. Seattle Title Trust Co. _v._ Roberage, 278 U.S. 116 (1928), 1029 Washington Market Co. _v._ District of Columbia, 172 U.S. 361 (1899), 304 Washington-Southern Navigation Co. _v._ Baltimore & P.S.B. Co., 263 U.S. 629 (1924), 526 Washington University _v._ Rouse, 8 Wall. 439 (1869), 351 Waterloo Distilling Corp. _v._ United States, 282 U.S. 577 (1931), 841 Waters-Pierce Oil Co. _v._ Texas, 212 U.S. 86 (1909), 1017, 1133 Watkins, Ex parte, 3 Pet. 193 (1830), 313, 314, 904 Watkins, Ex parte, 7 Pet. 568 (1833), 302 Watson _v._ Buck, 313 U.S. 387 (1941), 564 Watson _v._ Jones, 13 Wall. 679 (1872), 627 Watson _v._ Maryland, 218 U.S. 173 (1910), 1024, 1145, 1146, 1155 Watson _v._ Mercer, 8 Pet. 88 (1834), 327 Watson _v._ Tarpley, 18 How. 517 (1856), 604 Watts, In re, 190 U.S. 1 (1903), 265 Watts _v._ Indiana, 338 U.S. 49 (1949), 1120, 1121 Watts _v._ United States, 1 Wash. Terr. 288 (1870), 435 Waugh _v._ Mississippi University, 237 U.S. 589 (1915), 985 Wayman _v._ Southard, 10 Wheat. 1 (1825), 74, 75, 79, 512, 525 Weaver _v._ Palmer Bros. Co., 270 U.S. 402 (1926), 1031 Webb, Ex parte, 225 U.S. 663 (1912), 699 Webber _v._ Virginia, 103 U.S. 455 (1881), 185 Weber _v._ Freed, 239 U.S. 325 (1915), 162 Weber _v._ State Harbor Comrs., 18 Wall. 57 (1873), 698 Webster _v._ Reid, 11 How. 437 (1851), 893 Weeks _v._ United States, 232 U.S. 383 (1914), 828, 831, 905 Weems _v._ United States, 217 U.S. 349 (1910), 903 Weiss _v._ Stearn, 265 U.S. 242 (1924), 1195 Weiss _v._ United States, 308 U.S. 321 (1939), 136 Welch _v._ Cook, 97 U.S. 541 (1879), 304, 342 Welch _v._ Henry, 305 U.S. 134 (1938), 1039, 1150 Welch _v._ Swasey, 214 U.S. 91 (1909), 983, 1027, 1065, 1068, 1154 Welch Co. _v._ New Hampshire, 306 U.S. 79 (1939), 226, 251, 1155 Weller _v._ New York, 268 U.S. 319 (1925), 1024 Wells, Ex parte, 18 How. 307 (1856), 407 Wells _v._ Roper, 246 U.S. 335 (1918), 588, 590 Wells Fargo & Co. _v._ Ford, 238 U.S. 503 (1915), 658 Welton _v._ Missouri, 91 U.S. 275 (1876), 184, 218 West Coast Hotel _v._ Parrish, 300 U.S. 379 (1937), 303, 855, 980, 988, 1146, 1159 Western & A.R. Co. _v._ Georgia Public Service Commission, 267 U.S. 493 (1925), 1012 Western & A.R. Co. _v._ Henderson, 279 U.S. 639 (1929), 1094, 1095 Western Distributing Co. _v._ Public Serv. Com. of Kansas, 285 U.S. 119 (1932), 234 Western Life Indemnity Co. _v._ Rupp, 235 U.S. 261 (1914), 676 Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938), 195, 204, 205, 207 Western Maid, The, 257 U.S. 419 (1922), 586 Western Oil Refining Co. _v._ Lipscomb, 244 U.S. 346 (1917), 187 Western Paper Makers' Chemical Co. _v._ United States, 271 U.S. 268 (1926), 850 Western Turf Asso. _v._ Greenberg, 204 U.S. 359 (1907), 809, 981, 1024 Western Union Teleg. Co. _v._ Alabama Board of Assessment, 132 U.S. 472 (1889), 204 Western Union Teleg. Co. _v._ Ann Arbor R. Co., 178 U.S. 239 (1900), 567 Western Union Teleg. Co. _v._ Brown, 234 U.S. 542 (1914), 232 Western Union Teleg. Co. _v._ Chiles, 214 U.S. 274 (1909), 305 Western Union Teleg. Co. _v._ Commercial Milling Co., 218 U.S. 406 (1910), 232, 971, 1156 Western Union Teleg. Co. _v._ Crovo, 220 U.S. 364 (1911), 232 Western Union Teleg. Co. _v._ Foster, 247 U.S. 105 (1918), 120, 232 Western Union Teleg. Co. _v._ Industrial Com'n., 24 F. Supp. 370 (1938), 1085 Western Union Teleg. Co. _v._ International B. of E. Workers, 2 F (2d) 993 (1924), 953 Western Union Teleg. Co. _v._ Kansas ex rel. Coleman, 216 U.S. 1 (1910), 196, 1051 Western Union Teleg. Co. _v._ Lenroot, 323 U.S. 490 (1945), 158 Western Union Teleg. Co. _v._ Massachusetts, 125 U.S. 530 (1888), 200, 201 Western Union Teleg. Co. _v._ New Hope, 187 U.S. 419 (1903), 214 Western Union Teleg. Co. _v._ Pendleton, 122 U.S. 347 (1887), 232 Western Union Teleg. Co. _v._ Richmond, 224 U.S. 160 (1912), 232, 1009 Western Union Teleg. Co. _v._ Speight, 254 U.S. 17 (1920), 122, 126 Western Union Teleg. Co. _v._ Taggart, 163 U.S. 1 (1896), 201 Western Union Teleg. Co. _v._ Texas, 105 U.S. 460 (1882), 126, 193, 733 Weston _v._ Charleston, 2 Pet. 449 (1829), 729 West River Bridge Co. _v._ Dix, 6 How. 507 (1848), 350 West Side Belt R. Co. _v._ Pittsburgh Constr. Co., 219 U.S. 92 (1911), 685 West _v._ American Telephone & Telegraph Co., 311 U.S. 223 (1940), 607 West _v._ Louisiana, 194 U.S. 258 (1904), 1009, 1141 Wetmore _v._ Karrick, 205 U.S. 141 (1907), 659 Wharton _v._ Wise, 153 U.S. 155 (1894), 11, 369 Wheaton _v._ Peters, 8 Pet. 591 (1834), 271, 274, 275 Wheeler _v._ Jackson, 137 U.S. 245 (1890), 1092 Wheeler _v._ Sohmer, 233 U.S. 434 (1914), 1045, 1047 Wheeler _v._ United States, 226 U.S. 478 (1913), 827 Wheeler Lumber Bridge & Supply Co. _v._ United States, 281 U.S. 572 (1930), 107 Wheeling, P. & C. Transportation Co. _v._ Wheeling, 99 U.S. 273 (1879), 366 Wheeling Steel Corp. _v._ Fox, 298 U.S. 193 (1936), 1042, 1050 Wheeling Steel Corp. _v._ Glander, 337 U.S. 562 (1949), 198, 1143, 1144, 1150 Whelan _v._ United States, 7 Cr. 112 (1812), 576 White _v._ Cannon, 6 Wall. 443 (1868), 728 White _v._ Hart, 13 Wall. 646 (1872), 728 White _v._ Ragen, 324 U.S. 760 (1945), 1102, 1125, 1126, 1137 White _v._ Texas, 310 U.S. 530 (1940), 1113 Whitehead _v._ Shattuck, 138 U.S. 146 (1891), 895 White River Turnpike Co. _v._ Vermont Cent. R. Co., 21 Vt. 590 (1849), 350 Whitfield _v._ Ohio, 297 U.S. 431 (1936), 217, 219, 240, 687 Whitfield ex rel. Hadley _v._ Aetna L. Ins. Co., 205 U.S. 489 (1907), 1023 Whitney _v._ California, 274 U.S. 357 (1927), 772, 776, 800, 1156 Whitney _v._ Graves, 299 U.S. 366 (1937), 1054 Whitney _v._ Robertson, 124 U.S. 190 (1888), 421, 422 Whitney _v._ State Tax Com., 309 U.S. 530 (1940), 1039 Whitten _v._ Tomlinson, 160 U.S. 231 (1895), 634 Wichita Railroad & L. Co. _v._ Public Utilities Commission, 260 U.S. 48 (1922), 75, 1000 Wickard _v._ Filburn, 317 U.S. 111 (1942), 147, 153, 159, 564, 857 Wiggins Ferry Co. _v._ East St. Louis, 107 U.S. 365 (1883), 231, 366 Wight _v._ Davidson, 181 U.S. 371 (1901), 303, 846 Wilcox _v._ Jackson ex dem. McConnel, 13 Pet. 498 (1839), 477, 703 Wiley _v._ Sinkler, 179 U.S. 58 (1900), 87, 967 Wilkerson _v._ Utah, 99 U.S. 130 (1879), 904 Wilkes County _v._ Coler, 180 U.S. 506 (1901), 331 Willamette Iron Bridge Co. _v._ Hatch, 125 U.S. 1 (1888), 229, 699 Willard _v._ Presbury, 14. Wall. 676 (1870), 304 Willcox _v._ Consolidated Gas Co., 212 U.S. 19 (1909), 1002, 1006, 1008 Willcutts _v._ Bunn, 282 U.S. 216 (1931), 108 Williams, Ex Parte, 277 U.S. 267 (1928), 631 Williams _v._ Arkansas, 217 U.S. 79 (1910), 1156 Williams _v._ Baltimore, 289 U.S. 36 (1933), 982, 1143 Williams _v._ Bruffy, 96 U.S. 176 (1878), 325, 691 Williams _v._ Bruffy, 102 U.S. 248 (1880), 555 Williams _v._ Fears, 179 U.S. 270 (1900), 120, 693, 967, 971 Williams _v._ Johnson, 239 U.S. 414 (1915), 864 Williams _v._ Kaiser, 323 U.S. 471 (1945), 1100, 1101, 1102, 1103 Williams _v._ Mississippi, 170 U.S. 213 (1898), 1164, 1186 Williams _v._ New York, 337 U.S. 241 (1949), 1128 Williams _v._ North Carolina, 317 U.S. 287 (1942), 663, 665, 1133 Williams _v._ North Carolina, 325 U.S. 226 (1945), 663, 665 Williams _v._ Riley, 280 U.S. 78 (1929), 542 Williams _v._ Standard Oil Co., 278 U.S. 235 (1929), 996 Williams _v._ Suffolk Insurance Company, 13 Pet. 415 (1839), 472, 473 Williams _v._ United States, 1 How. 290 (1843), 477 Williams _v._ United States, 255 U.S. 336 (1921), 322 Williams _v._ United States, 289 U.S. 553 (1933), 512, 531, 534, 535 Williams _v._ United States, 341 U.S. 97 (1951), 883, 1176 Williamson _v._ Berry, 8 How. 495 (1850), 604, 605 Williamson _v._ Osenton, 232 U.S. 619 (1914), 601 Williamson _v._ United States 207 U.S. 425 (1908), 99 Willing _v._ Chicago Auditorium Association, 277 U.S. 274 (1928), 551 Willson _v._ Blackbird Creek Marsh Co., 2 Pet. 245 (1829), 217, 229, 230 Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949), 107, 109 Wilmington & W.R. Co. _v._ King, 91 U.S. 3 (1875), 356 Wilmington Star Min. Co. _v._ Fulton, 205 U.S. 60 (1907), 971, 987 Wilmington Transp. Co. _v._ R.R. Com., 236 U.S. 151 (1915), 231 Wiloil Corp. _v._ Pennsylvania, 294 U.S. 169 (1935), 189 Wilson, Ex Parte, 114 U.S. 417 (1885), 838 Wilson _v._ Cook, 327 U.S. 474 (1946), 699, 703, 731 Wilson _v._ Eureka City, 173 U.S. 32 (1899), 1157 Wilson _v._ Gaines, 103 U.S. 417 (1881), 347 Wilson _v._ New, 243 U.S. 332 (1917), 142, 855 Wilson _v._ North Carolina ex rel. Caldwell, 169 U.S. 586 (1898), 1096 Wilson _v._ Seligman, 144 U.S. 41 (1892), 1074 Wilson _v._ Standefer, 184 U.S. 399 (1902), 355 Wilson _v._ United States, 162 U.S. 613 (1896), 843 Wilson _v._ United States, 221 U.S. 361 (1911), 827, 844, 884 Winnebago, The, (Iroquois Transp. Co. _v._ Delaney Forge & Iron Co.) 205 U.S. 354 (1907), 235 Winona & St. P. Land Co. _v._ Minnesota, 159 U.S. 526 (1895), 1060 Winona & St. P.R. Co. _v._ Blake, 94 U.S. 180 (1877), 1143 Winters _v._ New York, 333 U.S. 507 (1948), 779, 1097 Winton _v._ Amos, 255 U.S. 373 (1921), 864 Wiscart _v._ Dauchy, 3 Dall. 321 (1796), 522, 560, 612, 614 Wisconsin _v._ Illinois, 278 U.S. 367 (1929), 128 Wisconsin _v._ Minnesota Mining Co., 311 U.S. 452 (1940), 1055 Wisconsin _v._ Pelican Insurance Co., 127 U.S. 265 (1888), 596, 597, 613, 654, 658, 674, 675, 684 Wisconsin _v._ Penney (J.C.) Co., 311 U.S. 435 (1940), 1054 Wisconsin & Michigan Ry. _v._ Powers, 191 U.S. 379 (1903), 204, 342, 343 Wisconsin Gas Co. _v._ United States, 322 U.S. 526 (1944), 1044 Wisconsin, M. & P.R. Co. _v._ Jacobson, 179 U.S. 287 (1900), 222, 1012 Wisconsin Railroad Com. _v._ Chicago, B. & Q.R.R. Co., 257 U.S. 563 (1922), 136, 220 Wissner _v._ Wissner, 338 U.S. 655 (1950), 285 Withers _v._ Buckley, 20 How. 84 (1858), 699, 751 Withnell _v._ Ruecking Constr. Co., 249 U.S. 63 (1919), 1059 Wolf _v._ Colorado, 338 U.S. 25 (1949), 830, 831, 1122, 1123 Wolff Packing Co. _v._ Industrial Court, 262 U.S. 522 (1923), 992, 996 Wolff Packing Co. _v._ Industrial Court, 267 U.S. 552 (1925), 986 Wolsey _v._ Chapman, 101 U.S. 755 (1880), 477 Wong Doo _v._ United States, 265 U.S. 239 (1924), 315 Wong Yang Sung _v._ McGrath, 339 U.S. 33 (1950), 850, 852 Wong Wing _v._ United States, 163 U.S. 228 (1896), 838, 846 Wood & Henderson, In re, 210 U.S. 246 (1908), 893 Wood _v._ Broom, 287 U.S. 1 (1932), 94, 548 Wood _v._ Lovett, 313 U.S. 362 (1941), 332, 333 Woodruff _v._ Parham, 8 Wall. 123 (1869), 182, 183, 239, 363 Woodruff _v._ Trapnall, 10 How. 190 (1851), 326 Woods _v._ Miller, 333 U.S. 138 (1948), 293, 475, 859 Woods _v._ Stone, 333 U.S. 472 (1948), 856 Woods & Sons _v._ Carl, 203 U.S. 358 (1906), 276 Woodson _v._ Deutsche G. & S.S.V. Roessler, 292 U.S. 449 (1934), 865 Worcester _v._ Georgia, 6 Pet. 515 (1832), 431, 625 Worcester County Trust Co. _v._ Riley, 302 U.S. 292 (1937), 934 Worthen Co. _v._ Kavanaugh, 295 U.S. 56 (1935), 361 Worthen Co. _v._ Thomas, 292 U.S. 426 (1934), 361 Wright _v._ Davidson, 181 U.S. 371 (1901), 848 Wright _v._ Georgia R. & Bkg. Co., 216 U.S. 420 (1910), 347 Wright _v._ Mountain Trust Co., 300 U.S. 440 (1937), 263, 858 Wright _v._ Nagle, 101 U.S. 791 (1880), 330 Wright _v._ Union Central Insurance Co., 304 U.S. 502 (1938), 263 Wright _v._ United States, 302 U.S. 583 (1938), 103 Wuchter _v._ Pizzutti, 276 U.S. 13 (1928), 661, 1074, 1085, 1088 Wyandotte Gas Co. _v._ Kansas, 231 U.S. 622 (1914), 349 Y Yakus _v._ United States, 321 U.S. 414 (1944), 76, 289, 512, 525, 532, 620, 624, 893 Yamashita, In re, 327 U.S. 1 (1946), 317, 846, 851 Yamataya _v._ Fisher, 189 U.S. 86 (1903), 852 Yarbrough, Ex parte, 110 U.S. 651 (1884), 87, 94, 309, 386, 967, 1172, 1183, 1208 Yarbrough _v._ Yarbrough, 290 U.S. 202 (1933), 671 Yates _v._ Milwaukee, 10 Wall. 497 (1870), 604 Yazoo & M.V.R. Co. _v._ Greenwood Grocery Co., 227 U.S. 1 (1913), 247 Yazoo & M.V.R. Co. _v._ Jackson Vinegar Co., 226 U.S. 217 (1912), 1015, 1092 Yeaton _v._ United States, 5 Cr. 281 (1809), 1214 Yee Hem _v._ United States, 268 U.S. 178 (1925), 849 Yeiser _v._ Dysart, 267 U.S. 540 (1925), 990 Yerger, Ex parte, 8 Wall. 85 (1869), 523, 612, 619 Yick Wo _v._ Hopkins, 118 U.S. 356 (1886), 981, 1142, 1143, 1145, 1157, 1158 York _v._ Texas, 137 U.S. 15 (1890), 1090 York Mfg. Co. _v._ Colley, 247 U.S. 21 (1918), 121 Yost _v._ Dallas County, 236 U.S. 50 (1915), 357 Young, Ex parte, 209 U.S. 123 (1908), 524, 628, 629, 630, 931, 933, 934 Young _v._ Masci, 289 U.S. 253 (1933), 1033 Young _v._ United States, 97 U.S. 39 (1878), 640 Young Co. _v._ McNeal-Edwards Co., 283 U.S. 398 (1931), 1090 Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952), 380, 489 Yu Cong Eng _v._ Trinidad, 271 U.S. 500 (1926), 855 Z Zabriskie _v._ Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867), 344 Zahn _v._ Board of Public Works, 274 U.S. 325 (1927), 1028 Zakonaite _v._ Wolf, 226 U.S. 272 (1912), 853, 878 Zane _v._ Hamilton County, 189 U.S. 370 (1903), 352 Zap _v._ United States, 328 U.S. 624 (1946), 831 Ziffrin, Inc. _v._ Reeves, 308 U.S. 132 (1939), 241, 1232 Zorach _v._ Clauson, 303 N.Y. 161, 100 N.E. 2d 463 (1951), 762 Zorach _v._ Clauson, 343 U.S. 306 (1952), 763 Zucht _v._ King, 260 U.S. 174 (1922), 984 INDEX Readers Should Also Consult the Table of Contents Preceding Each Article and Amendment of the Constitution A Abandoned Property, unclaimed funds of resident insurers, escheat from foreign company, 1034 Administration of Estates, State powers as to, 1034 Administrative Agencies: Created by President, 393-394, 396 Discretion to discriminate, when a denial of equal protection, 1157 Judicial review of, when a due process requisite, 850-853 Jurisdictional facts, finality of determination by, 622-623 State, procedural due process, notice and hearing, etc., 1084-1088, 1139 Administrative Regulations (_see also_ Delegation of Power; Executive Power; President: Powers): Violations of, how punished as crimes, 82 Admiralty (_see also_ Courts (Federal); Navigable Waters; States; States: Courts): Congress, powers as to, 311, 573-574, 576-583 Public merchant vessels, immune from suit, 474 State wrongful death statutes, application to maritime torts, 574-575 Advertisements. _See_ Motor Vehicles; Trade-Marks. Advisory Opinions. _See_ Courts (Federal). Agriculture. _See_ Commerce; Commodity and Security Exchanges; Fruit; Milk; Raisins; Warehouses; Wheat. Aircraft. _See_ Airplanes. Air Force. _See_ Land, Air, and Naval Forces. Airplanes: Federal regulation, 138-139 State taxation of, 210-211 Alcoholic Beverages. _See_ Intoxicating Liquors. Aliens (_see also_ Courts (Federal); Enemies; Japanese): Deportation, exclusion, proceedings, due process in, 851-853 Discrimination against by States, cities, when a denial of equal protection, 1157-1158 Due process of law, protected by, 846 Entry, exclusion, powers of Congress as to, 259-261 Fifth Amendment, protected by, limits, 439 Fishing licenses, State refusal to issue to, validity, 417 Land ownership by, State power to restrict, 416-417, 968, 1157-1158 Property of, condemnation, 865 Release from State custody by habeas corpus from federal court, 632 State curbs on entry, validity, 215-216, 241 Alliances, States not to enter into, 325 Ambassadors, Public Ministers, Consuls (_see also_ Courts (Federal); States: Courts): Defined, appointment, salary, etc., 445-447 Amendments to Constitution. _See_ Constitution of the United States. Amnesty. _See_ Pardons; President: Powers. Antitrust Laws. _See_ Restraint of Trade. Apportionment of Representatives. _See_ House of Representatives. Appropriations (_see also_ Public Funds of United States): Power of Congress to make, 323-324 Required for withdrawals from Treasury, payment of claims, 323 for Support of armies, two year limit, 279, 283-284 Army. _See_ Land, Air, and Naval Forces. Arsenals, purchased with State consent, federal jurisdiction over, 300, 306-307 Atomic Energy, 292 Attachment and Garnishment, railway cars in interstate commerce, under State law, 235 Attorneys (_see also_ Courts (Federal)): Defendant's right to, in federal criminal cases, 884-885 Defendant's right to, in State criminal trials; fair trial doctrine, 1098-1109 Practice in federal courts, powers of Congress as to, etc., 527-528 B Bail: Denial of, by States, validity, 1133 Excessive, not to be required, 903-904 Bankruptcy (_see also_ Due Process of Law): Legislation, limitations imposed by due process clause, 857-858 Persons covered by, 262-263 Powers of Congress as to; limitations, 263-264 Scope of relief to debtors, 262-263 State insolvency laws, when operative, validity, 264-265 States as creditors, filing of claims, 264-265 Banks (_see also_ National Banks; Taxation: States): Federal tax on State bank notes, municipal notes, 265, 309-310 in Interstate business, State regulation, 234-235 State owned, suable, 930 State regulation of, 1020, 1082 Unclaimed funds in, escheat to State, due process limitations, 1082 Bearing Arms: as Condition of naturalization, 256-257 Constitutional right as to, 813 Bill of Rights: Application to States, 750-752, 757, 760-764, 766-768, 771-773, 775-792, 808-810, 830, 904, 985, 1100-1101, 1110-1113, 1115-1118, 1121-1124, 1133 Formulation, adoption, 749-750 Intended scope, 770 Bills of Attainder, passage prohibited, 315-316, 326-327 Bills of Credit, States not to issue, 326 "Blue Ribbon" Juries. _See_ Juries. Blue Sky Laws, 1019 Borrowing Power, Federal, relation to coinage power, 117-118, 266-267 Boundaries of States, suits as to, 591-592 Bread. _See_ Food; Weights and Measures. Bridges across navigable streams, State power as to, 230-231 Building and Loan Association, conversion into federal, without State consent, void, 920-921 Building sites purchased with State consent, Federal jurisdiction over, 300, 305-307 Business, Trades, and Professions, Regulation by States, Municipalities, 1017-1024, 1155 Businesses Affected with Public Interest, State regulation of, 995-997 C Carriers (_see also_ Airplanes; Attachment and Garnishment; Public Utilities; Restraint of Trade; Taxation: State; Vessels): Bills of lading, Federal regulation as to, 143-144 Motor, Federal regulation of, 138, 139 Motor, State regulation of, 211-213, 226-228, 250, 1032-1033, 1153, 1155 Pipelines, oil and gas, Federal regulation of, 137-138 Pipelines, power of States to compel service by, 1025 Railroads, conflict of State, Federal regulations as to, 246-247, 251 Railroads, Federal regulation of labor, rates, safety, etc., due process limitations, 132-137, 139-143, 861-862 Railroads, grade crossing elimination, compellable services, etc., rates, safety; regulatory powers of States as to, 134-137, 220-225, 998-1008, 1010-1016, 1156 Transportation agencies, State control of, scope, 228 Censorship. _See_ Freedom of Religion, Speech, Press, Assembly; Motion Pictures; Postal Service; War. Census (_See also_ Taxation (Federal)): Basis of apportionment of seats in House of Representatives, 89-90 Decennially taken; extended scope, 89-90 Chain Stores, taxation of, validity, 1055, 1147-1148 Child Labor: Federal laws regulating, validity, 152-158 State laws regulating, 987 Chinese (_see also_ Aliens): Assigned to negro schools, validity, 1161 Cigarettes, State regulation of sale, 240 Citizens (State), Entitled to Privileges of Citizens in other States. _See_ Comity Clause. Citizenship (_see also_ Comity Clause; Corporations; Courts (Federal); President: Powers; Privileges and Immunities of U.S. and State Citizens): Defined; how acquired, exceptions, 254-256, 312, 699, 963-965 How lost; expatriation, etc., 256-259 of Inhabitants of territories, 254-255, 963-964 Jus sanguinis, as basis of, 254-255 Rights of naturalized persons, 257-258 Who are citizens, 254-255, 312, 963-965 Civil Rights, infraction by individuals, Congress cannot punish, 1175-1176 Claims against United States (_see also_ Public Debt of the United States): Congress, powers as to, 324 for Emancipation of slaves, void, 1174 Claims of United States, powers of Congress as to, 311 Clear and Present Danger. _See_ Freedom of Religion, Speech, Press, Assembly. Coal: Federal regulation as to, 153-154 Prohibition of mining, under city streets, etc., 1026 Coins and Coinage. _See_ Counterfeiting; Money. Comity Clause (_See also_ Taxation: State): Corporations not eligible to benefits of, 688-689 Privileges and immunities of State citizens, scope, 689-693 Sources, purposes of, how implemented, 686-688 State citizenship, scope of, 688 State discrimination as to nonresidents, limits, 691-693 Commerce (_see also_ Carriers; Child Labor; Coal; Foreign Commerce; Hydroelectric Power; Interstate Commerce Commission; Navigation; Original Package Doctrine; Police Power; Radio; Taxation; Wheat): Commerce clause of Constitution as source of National power, 118-173, 214-215, 217-220, 246-253 Commerce clause of Constitution, purpose, meaning of terms, 118-126 Concurrent Federal-State legislation as to, 246-252 Foreign, powers of Congress as to interstate and, compared, 123-125, 162-163, 165-167 Grain futures, Federal regulation of, 149-150 with Indian tribes, congressional power as to, 252-253 Instruments of, powers of Congress as to, 125-126, 139 Prohibition, restraint of, powers of Congress as to, 144-150 Regulations, Federal, favoring certain ports, 322-323 Reserved powers of States as limitation on Federal powers as to, 121-122, 917-921 State power to regulate interstate, Federal supremacy, 177-214, 224-225, 249-252, 968, 1027 Stockyards, Federal supervision of, 149 Commission Merchants, State regulation of, 235 Commodity and Security Exchanges, State regulation of, 250, 1019 Common Law (_see also_ Juries): No Federal crimes under, 877 Communication, instrumentalities of, Federal regulation, 138-139 Communists, prosecution of, in relation to freedom of speech and press, 795-802 Compacts between States. _See_ States: Agreement with other States. Confederations, States not to enter into, 325 Confessions (_see also_ Self-Incrimination): Forced, in State criminal trials, effect, 1111-1121 Confrontation: Right of, in Federal criminal trials, 884 Right of, presence of accused, in State criminal trials, 1126-1130 Congress (_see also_ Contempt; Elections; House of Representatives; Impeachment; Investigations; Senate): Internal Organization; Legislative Process: Bills, how enacted into law, 101-103 Concurrent resolutions, uses, 104 Journal of proceedings, contents, evidence, etc., 95, 98 Representatives, choice of Speaker, officers, 90 Resolutions, etc., how made effective, status, 104-105 Revenue bills, origination, amendment, 101-102 Rules of procedure, determination, 95-97 Yea and Nay votes, entry into journal, 95, 98, 102 Judicial direction, immunity from, 500 Members of Senate or House: Attendance, compulsion of, 95 Beginning of term, 1225 Compensation for services before departments, restriction, 97-98 Compensation, how fixed; when begins, 99 Disorderly behavior, punishment, 95 Election of, qualifications, each House to judge, 95-96 Expulsion, 95, 97-98 Freedom from arrest, libel suits, limits, 99-100 not Impeachable, 500 Incompatible offices, 100-101, 383 Presidential electors, ineligible as, 383 Qualifications, when fulfilled, enlargement of, 87-89, 91 as Treaty negotiators, eligibility, 449 Powers in Relation to Executive: Conduct of foreign relations, cooperation with President in, 467-471 Executive officers, control of conduct of, 478-480 Sessions: Adjournment by one House, restrictions, 95 Frequency; beginning of, 1225 Quorum required for, exceptions, 95-96 Conservation of Natural Resources, powers of States, 242-246, 1025-1027 Constitution of the United States: Amendment of, process, limits of power, scope for judicial review, 711-715 Amendments, dates of ratification of, 37-54 Amendments, resolutions proposing, not submitted to President, 105 Doctrines of interpretation of, 71-81 Preamble to, 19, 59-60, 166 Ratification of, effective date, etc., 743 Ratification, historical note on, 9-15 Consuls. _See_ Ambassadors. Containers (_see also_ Fraud; Original Package Doctrine): Regulation by States, 1018 Contempt (_see also_ Courts (Federal); Courts (State)): of Congress, punishment, 85-86 Criminal, civil, distinguished, 521 of State court, summary punishment, 1129-1130 Contracts, impairment by State prohibited, 329-362 Convict-Made Goods, State regulation of sale of, 240 Coolie Labor System. _See_ Involuntary Servitude. Copyright: Nature, scope of right secured, 274-276 Powers of Congress as to, 271, 275-276 Royalties from, State taxation of, 734 State powers as to, 276 Corporations (_see also_ Comity Clause; Courts (Federal); Taxation): Charters, termination by States, 1016 Charters, when contracts not to be impaired, 336-339, 343-352 Dissolved by State, ineligible for bankruptcy, 263 Due process of law, protected by, 981, 1016 Equal protection of the laws, entitled to, exceptions, 1142-1144, 1146-1147, 1149-1150, 1152 Federal, liability for wrongful acts, 586-587 Federal, powers of Congress as to, 267, 309-310 Federal, suability of, 590-591 Federal, taxation by States, etc., 732-734 Foreign, appointment of agent for service of process, 1074, 1077-1080 Foreign, equal protection clause as limit on taxation of, 1149-1150 Foreign, right to sue in Federal courts, 638 Foreign, State control over admission, licensing, operation, 231-232, 234, 249, 1009, 1016, 1021-1022 Foreign, suability, due process limitations, 1075-1080 Freedom of speech and assembly, not claimable by, 809 Privileges and immunities of United States, State, citizens, not eligible to, 965 Production of books and papers in State investigations, 1122 Publications supporting candidates, restraints on, 793 Self-incrimination, not protected against, 826, 843 Stockholders' derivative actions, security for costs, 1089-1090 Counsel. _See_ Attorneys. Counterfeiting: of Foreign money, power to punish, 278 Punishment, powers of Congress, States, 265-266, 278 Court of Claims (_see also_ Claims against United States; Courts (Federal)): Judicial review of decisions, status, 535-536 Jurisdiction, expansion as to adjudicated claims, 311 Courts (Federal) (_see also_ Boundaries of States; Corporations; Habeas Corpus; Indians; Juries; Labor; Political Questions; Prizes of War; Public Officers of the United States; States: Courts; States: Officers; States: Powers; States: Suits by and against; Supreme Court of the United States): Admiralty and maritime jurisdiction; scope, types of cases, procedure in, etc., 278-279, 572-583 Advisory opinions not rendered by, 549-550 Ancillary, inherent powers, 511-512, 515-528 Attorneys, admission, disbarment by, 527-528 Cases and controversies before, defined, attributes of, 538-553, 561, 585 Cases arising under Constitution, Laws, Treaties, 553-570 Citizenship for jurisdictional purposes, 597, 599-603 Congress, powers as to organization, jurisdiction of, 310, 525, 528-537, 551, 574-580, 582-586, 591, 600, 603, 606-608, 611-624, 630-632, 635-636 Consular courts, 533 Consuls, etc., suable in, 571-572 Contempts, power to punish, regulation by Congress, 511, 515-521 Corporations, citizenship for jurisdictional purposes, status to sue in, 568, 597, 601-603, 638 Declaratory judgments, power to issue, validity, etc., 513-514, 551-553 District of Columbia residents, citizenship for jurisdictional purposes, 599-600 in District of Columbia, status, powers, regulations by Congress, 304-305, 522, 536-537 Full faith and credit clause in, 684 Immunity from suit of United States, States, foreign states, waiver, etc., 585-591, 609 Indian tribes, immunity from suit, removal of cases, 591 Indian tribes, not foreign state for jurisdictional purposes, 431, 610 Inferior, administrative matters, jurisdiction over, 623-624 Inferior, creation, abolition, etc., by Congress, 277, 528-530 Judges and juries in, functions distinguished, directed verdicts, 895-897 Judicial review by, origin, scope, limits, etc., 554-566, 799 Jurisdiction concurrent with Supreme Court, scope, 613-614 Jurisdiction, scope, 525, 538-635, 638 Legislative, creation, etc., by Congress, 310, 533-537 Nonjudicial functions, powers of Congress to vest in, 533-535, 537 Power to render and enforce judgments, 595 Presidential use of, to enforce laws, 484-486 Referees, masters, special aids, appointment by, 527 Rule-making power, derivation, limits, process, 74, 525-526 of Specialized jurisdiction, organization, powers, etc., 531-533, 620 State courts, controversies, concurrent jurisdiction, with, comity, 624-635 State courts, removal of cases to, from, 310, 567-569 States, interest requisite for suits in, 114, 543, 594 Status to sue in, 114, 541-543, 594 Suits against States by citizens of other States, etc., 929-930 Suits between citizens of different States, law applicable to, interpretation (diversity of citizenship), 302, 332, 599-608 Suits between State, or its citizens, and foreign states, citizens, etc., 609-611 Suits between States, 591-595 Suits by States against citizens of another State, suits by, as parens patriae, 596-599 Suits by States to enforce their penal laws, 597 Suits of citizens under land grants of different States, 608-609 Suits of United States as party plaintiff or defendant, suits of, against States, 584-591 Territorial, how created, jurisdiction, etc., 703 Territorial, transferral of cases from, when, 699 Writs, congressional power as to issue by, 312-313, 522-525, 621-622 Courts Martial. _See_ Land, Air and Naval Forces. Courts (State): Errors of, not effecting denial of due process, 1140-1141 Impartiality essential to due process; effect of mob violence, 1131, 1138-1139 Crimes and Offenses (_see also_ Criminal Prosecutions; Elections; Felonies; High Seas; Taxation: Federal): Definition; powers of Congress as to, 277-279, 308-309 Federal, petty, serious, defined, 877-878, 881-883 under National Prohibition Act, effect of repeal, 1214 Penalties, gradation for different crimes, different criminals, validity, 1160-1161 Vagueness of statutes defining, effect, 881-883, 984, 1097 Criminal Prosecutions (_see also_ Attorneys; Confrontation; Crimes and Offenses; Double Jeopardy; Due Process of Law; Ex Post Facto Laws; Grand Juries; Habeas Corpus; Juries; Public Officers of United States; Territories; Treaties): Federal, place of trial, 880-881 Federal, rights of accused, scope, 877-885 Cruel and Unusual Punishment, not to be inflicted, what constitutes, 903-905, 1133-1135 D Dams, across navigable streams, State powers as to, 229-230 Debts due the United States, collection, 117 Debts of the United States: Abrogation of gold clause in United States bonds, validity, 117 Contraction, payment, 117 Declaratory Judgments. _See_ Courts (Federal). Delegation of Power: Judicial, to administrative agencies, 521 Legislative, by Congress, 71, 73-81, 392, 442 to President, in conduct of foreign relations, 80, 380 Rule-making, to courts, 74, 525-526 by State legislatures, to rate-making commissions, 77 in War, 289-291, 392 Descent. _See_ Succession to Property. Direct Tax. _See_ Taxation: Federal. Discrimination. _See_ Aliens; Chinese; Comity Clause; Equal Protection of the Laws; Involuntary Servitude; Negroes; Restraint of Trade. District of Columbia (_see also_ Courts (Federal)): Cession by States, effect, 301-302 Courts of, powers, status, 304-305 Diversity of citizenship clause, applicable to, 302 Interstate commerce, taxation of, by, 304 Jury trial, residents entitled to, 303, 892 as a Municipal corporation, suability, powers, 300-301, 304 Police power of, 303 Retrocession of Alexandria County to Virginia, 301 as Seat of government, powers of Congress as to, 300-305 as a "State" for certain purposes, 302 State laws applicable to, 302 Taxation in, 303-304 Diversity of Citizenship. _See_ Courts (Federal). Divorce. _See_ Due Process of Law; Full Faith and Credit. Docks and Dock Yards. _See_ Wharves and Docks. Dogs, protection conditioned on owner's payment of tax, 1035 Domestic Violence, Federal protection of States against, 704-705 Double Jeopardy (_see also_ Due Process of Law): Guaranty against, not applicable to military forces, 286 What constitutes; protection against, limits, 837-841, 1135-1137 Drugs (_see also_ Pharmacies): State, etc., laws regulating sale of, 1030 Dual Federalism (_see also_ States: Powers), 106, 915-919 Due Process of Law (Fifth Amendment) (_see also_ Administrative Agencies; Aliens; Bankruptcy; Carriers; Corporations; Land, Air, and Naval Forces; Police Power; Public Utilities): in Administrative proceedings, essentials of, 849-853 in Criminal proceedings, essentials of, 847, 881-885 Discriminatory legislation, relation to, 853-854 Indictment by grand Jury, precision required by, 838, 883-884 as to Infamous crimes requiring grand jury indictment, 837-838 Meaning, source, evolution of, 751, 844-846, 854-855 Procedural protection of, essentials, 846-853 Retroactive legislation, deprivation of property, as affected by, 855-858 Self-incrimination, protection against, 825-827, 830, 837, 841-844 Substantive, essentials of, 853-864 Due Process of Law (Fourteenth Amendment) (_see also_ Full Faith and Credit; Motor Vehicles): in Administrative, legislative proceedings; notice and hearing, etc., 1084-1088, 1139 Appeal, new trial, etc., not required by, 1139 in Civil proceedings, jurisdiction required, perfected by service of process, appearance, etc., 1070-1089, 1096 Comparison with clause in Fifth Amendment, 971-972 in Criminal proceedings, 1096-1139 in Divorce actions; jurisdiction required, 662-671 Enforcement of, by Congress, limits, 1175-1177 Historical development, 971-980 Judgments without jurisdiction, process, etc., as denial of, 658-661, 670-673 Judicial procedure, as limitation on State regulation of, 1089-1096 in Judicial proceedings, notice and hearing, etc., 1087-1088, 1139 "Liberty", protected by, 983-997, 1017, 1019-1020, 1022 "Persons", protected by, 981-982 Retroactive repeal of certain rights, when a denial of, 1035, 1039 Scope of protection, 981-1139 E Earmarked Funds. _See_ General Welfare; Spending for the General Welfare. Education. _See_ Negroes; Schools and Colleges. Elections (_see also_ House of Representatives; Negroes; President; Election; Public Officers of the United States; Senate): Congressional, use of State officers, etc., powers of Congress as to, 87, 92-94, 738-739 Crimes in relation to, 92 Declaration of intention as prerequisite to voting, validity, 1165 Grandfather clauses, void, 1184 Inequalities in voting power from unfair apportionment and nominating procedures, 92-94, 1165, 1207-1208 Literacy requirements for voting, 1184-1186 of Members of Congress, each House to be judge of, 95-96 Municipal, Federal regulations pertaining to, 92-93 Primary, for nomination of Congressmen, Federal regulations as to, 94 Primary, status of political parties in, 1185 Qualifications of voters; voting rights, Federal protection of, etc., 87, 92-94, 386, 1170-1172, 1183-1186, 1207-1208, 1219-1220 Time-off-for-voting laws, validity, 988 Electricity (_see also_ Public Utilities): Interstate distribution of, Federal, State regulation, 137, 223 Embargoes. _See_ Conservation; Foreign Commerce. Eminent Domain (_see also_ Aliens; Navigable Waters): Federal, just compensation defined, enforced; right to interest, etc., 866-867, 869-872 Federal, of State lands, 920 Federal power of, scope, 837, 864-872, 920 Federal, public use defined, determined, 865-866 Federal, what constitutes a "taking", 867-869 President, powers of, in war time, 403 State, power of, inalienable, limited by due process clause, 349-350, 1062-1070 State, "taking", "for public use", just compensation, uncompensated takings, consequential damages, defined, 1003-1068 War damage, liability of United States, 298 Emoluments, acceptance from foreign states by public officers, restricted, 324 Enemies: Alien, confiscation of property, 865 Alien, deportation after end of hostilities, 474-475 Alien, not protected by due process of law, 846 Alien, property, rights, status; effect of war on, 80, 294-298, 402, 846, 865 Equal Protection of the Laws (_see also_ Corporation; Elections; Negroes; State: Taxation): Federal enforcement of guaranty; limits, 807-808, 919, 1175-1177 Scope of protection, 1141-1170 State action denying, what constitutes, 1141-1142 Escheat. _See_ Banks; Insurance. Estate, Gift, and Inheritance Taxes. _See_ Taxation. Evidence and Presumptions, burden of proof, prima facie evidence, etc., due process limitations on State regulations as to, 1093-1096 Excises. _See_ Taxation. Executive Agreements (_see also_ President: Powers): Distinguished from Treaties, 433, 442, 444-445 Examples of, authorized, approved by Congress, 419, 433, 441-443, 445 Supreme, over conflicting State laws, 1201 Types of, 419, 433-445 Validity, binding effect of, 433-444 Exports. _See_ Commerce; Foreign Commerce; Taxation. Ex Post Facto Laws: Application to war criminals, 402-403 Defined, 316-317 Passage by States, scope of prohibition, 327-329 Test oaths for office holding, 736 Extradition (_see also_ Habeas Corpus): Congress, powers as to, 693-694 Duty of State to surrender fugitives, 693-694, 738 Felons fleeing District of Columbia, unnecessary, 303 to Foreign nations, by President, 464 to Foreign nations, by States, limitation, 325 Fugitive from justice defined, 694-695 Removal procedure, rights of fugitive, 695-696 F Fair Trial (_see also_ Attorneys), 1098-1109, 1111-1113, 1129-1133, 1138-1139 Federal-State Relations, 736-739 Federal Supremacy. _See_ National Supremacy. Felonies (_see also_ Crimes and Offenses): Committed on high seas, power of Congress as to, 277-279 Ferries (_see also_ Carriers): on Navigable streams, State powers over, 231 Firearms. _See_ Bearing Arms. Fish, conservation of, powers of States, 217, 245, 690, 1027 Flag, reproduction on salable articles prohibited, 1154 Flag Salute Laws. _See_ Freedom of Religion, Speech, Press, Assembly. Flood Control, Federal power as to, 132 Food, State regulations as to manufacture, sale, purity, labelling, weights, etc., 248, 250, 1030, 1154 Foreign Commerce (_see also_ Commerce; Game): Prohibition of, by Congress, 160-163 State police and taxing powers, relation to, 177-178, 215-217 Foreign Corporations. _See_ Corporations. Foreign Relations. _See_ Executive Agreements; President: Powers; Recognition; Treaties. Forts, Federal jurisdiction over, 300, 305-307 Franchise Taxes. _See_ Taxation. Fraud, in sales, prevention by States, etc., 1018-1019 Freedom of Assembly. _See_ Freedom of Religion, Speech, Press, Assembly. Freedom of Press. _See_ Freedom of Religion, Speech, Press, Assembly. Freedom of Religion, Speech, Press, Assembly (_see also_ Communists; Corporations; Labor; Land, Air and Naval Forces; Lobbying; Postal Service; Public Officers of the United States; Radio; States: Officers; Supreme Court of the United States; War): of Assembly and petition; history, restraints on, 805-810 Clear and present danger rule, 772-784, 787-792, 794-801 Guaranty of, absorption into Fourteenth Amendment, 757 of Press, contempt of court decrees as restraint on, 517, 783-784 of Press, group libel laws as restraint on, 802-804 of Press, motion picture censorship, validity, 787-788 of Religion, compulsory public school attendance, effect on, 765 of Religion, liability to military service as condition prerequisite to certain privileges, effect on, 768 of Religion, "no preference" doctrine, 758-759 of Religion, public bus transportation for parochial schools, effect on, 759, 764 of Religion, "released time" for religious instruction, effect on, 760-763 of Religion, rights of Mormons, 759 of Religion, scope, restraints on, 563-564, 764-769 of Religion, "wall of separation" doctrine, 759-763 Religious property, tax exemption, validity, 764 Religious schools, free textbooks for, effect on, 764 of Speech and press, censorship, 786-788 of Speech and press, in parks and streets, 784-786, 791 of Speech and press, restraint by taxation, labor regulations, etc., 792-793 of Speech and press, scope, 769-805 of Speech, curbs on sound trucks, street car radios, effect on, 767, 785 Freedom of Speech. _See_ Freedom of Religion, Speech, Press, Assembly. Fruit: Export of, restriction by States, 243-244, 1027 Immature citrus fruit, exclusion by States from interstate commerce, 1027 Protection of orchards by State by destruction of private property, 1026-1027 Fugitive Slave Clause, 696 Fugitives from Justice. _See_ Extradition. Full Faith and Credit Clause (_see also_ Courts (Federal); Supreme Court of the United States): Adoption decrees, effect on inheritance in forum State, 673 Common law, statutory, constitutional rights, scope of recognition by States, 675-683 Congress, power to effectuate, 651-652, 657, 683-685 Decrees awarding alimony, custody of children, 670-671 Divorce decrees, domicile as jurisdictional prerequisite to; effect on alimony, custody of children, property, 662-670 Garnishment decrees, 673-674 Judgments, effect in forum State, limits, 653-674, 685 Judgments, fraud as defense to enforcement of, 674 Judgments, jurisdiction prerequisite to enforcement, 657-670, 682-683 Penal judgments, limits on enforcement, 674-675 Probate decrees, 672-673 Purpose of clause, 652 Suits against corporations, by stockholders, creditors, policy holders, law applied by forum, 677-681 Tort and contract actions, law applied by forum, 677, 681-682 Workmen's compensation acts, application in forum, 681-682 G Gambling: Building used for, lien on, for money lost, 1031 Lotteries, etc., State prohibition of, 1031 Game, conservation, restriction on export of, by States, 217, 242-243, 690, 1027 Garbage, municipal regulations as to disposal of, 1030 Gas (_see also_ Carriers; Public Utilities; Taxation: States): Conservation, restriction of export of, by States, 243, 1025-1026 Damages from drilling for, requiring bond to cover, 1026 Gasoline. _See_ Police Power; Prices, Charges, Rates; Taxation; Zoning. General Welfare, powers of Congress as to; State reserved powers as limitation on, 112-117, 917-919 Gift Taxes. _See_ Taxation. Gold. _See_ Money; Public Debt of the United States. Governors. _See_ States: Governors. Grain. _See_ Agriculture; Commerce; Commodity and Security Exchange; Conservation; Warehouses. Grand Jury (_see also_ Due Process of Law): Abolition by States, 837, 1098 Grants-in-Aid, 113, 116 Group Libel, 802-804 H Habeas Corpus (_see also_ Prisoners): Errors at trial, issuance to correct, 312-313 in Extradition proceedings, 695 Issuance by Federal courts, 312-314 Issuance by Federal or State court to release prisoner in custody of other jurisdiction, 624, 626, 631-633 Military tribunal, to review proceedings of, 286 Review of conviction, use by prisoners to obtain, 1109, 1124-1126 not a Substitute for appeal, 314 Suspension, when valid, 315, 399-401 Habitual Offenders, successively heavier penalties on, validity, 1133, 1135, 1137, 1160 Health (_see also_ Drugs; Food; Garbage; Milk; Sewers; Water): Power of States, etc., to safeguard, 1029-1031 High Seas: Offenses committed on, defined, 277-279 Power of States over citizens on, 325 Holding Companies. _See_ Public Utilities. Hot Pursuit, agreements with Mexico for crossing of boundary by troops, 434 House of Representatives (_see also_ Congress; Elections): Apportionment, representation in, reduced for illegal voting restrictions, etc., 1170-1172 Composition, 89-90 Election to fill vacancies in, 90 Election to, State regulations as to, 93-94 Impeachment, powers as to, 90 Revenue bills originate in, 101-102 Hydroelectric Power, scope of Federal, State powers as to, 130-132 I Immigration. _See_ Aliens. Impairment of Obligation of Contracts, 329-362 Impeachment (_see also_ House of Representatives; President; Senate): Chief Justice; when presiding officer at trial, 91 Judgment on conviction, limitations on penalties, 92 Officers subject to; grounds for, 501 Implied Powers of Congress, 72-73 Imports. _See_ Commerce; Foreign Commerce; Inspection Laws; Taxation. Income Tax. _See_ Taxation. Indians (_see also_ Courts (Federal)): Citizenship of, 254 Commerce with, congressional power as to, 252-253 Crimes on reservations, State jurisdiction as to, 698 Fishing rights of, under treaty, application of State game laws to, 700-701 Liquor, prohibition on lands used by, 253, 698, 702 "Not taxed"; included in apportioning seats in House of Representatives, 1171-1172 Regulations governing, due process limitations, 864 State taxes on lessees of lands of, 735 Treaties with, status, abrogation, etc., 431-432 Vested property rights of, protected by Fifth Amendment, 432 Indictment. _See_ Due Process of Law; Grand Juries. Industrial Relations. _See_ Labor; Steel Seizure Case. Infamous Crimes. _See_ Due process of Law. Inherent Powers of National Government, 279-280, 380 Inheritance Taxes. _See_ Taxation. Insolvency. _See_ Bankruptcy. Inspection Laws, State, power to impose, application to imports, exports, 235-238, 248, 250, 364-365 Insurance (_see also_ Abandoned Property; Corporations; Taxation: State): Agents acting as undertakers, sharing commissions, State regulations as to, 1021 Foreign companies, conditions of entry, regulation of relations with, 1021-1022 as Interstate commerce, Federal, State regulation of, 214-215 Liquidation of companies, rights of dissenting policyholders, 1023 Policy provisions, State regulations as to, 1022-1023 Rates, agent's commissions, State regulation of, 996, 1153, 1155 State regulation of, 996, 1021-1023, 1153, 1155 Insurrection. _See_ National Supremacy. Interest. _See_ Money Lending. International Law: Application to prizes of war, 295-296 as National public law, 277 Offenses against, punishment by Congress; trial of, by military commissions, 277-279 President, as enforcer of, 435, 486-487 Interstate Commerce. _See_ Commerce. Interstate Commerce Commission, creation, powers, 134-137 Interstate Compacts. _See_ States: Agreements with other States. Intoxicating Liquors (_see also_ Prohibition Amendment; Prohibition Repeal Amendment): Destined for Federal area, exempt from State taxation, 1283 Federal regulation, as affected by Twenty-first Amendment, 1233-1234 Imported, discrimination in favor of domestic, by States, 1231-1232 State power as to, scope under Twenty-first Amendment, 1231-1234 State prohibition, regulation of sale, of, 238-239, 1031-1032, 1155 Transportation into States in violation of State law, 1231-1233 Investigations by Congress, scope of power as to, 82-86 Involuntary Servitude: Conscription does not create, 284-285 Discriminations, compulsions, not amounting to, 284-285, 951-953 Peonage defined as, statutes creating, 950-951 Prohibited, except as punishment for crime; powers of Congress as to, 950-951, 953-954 J Japanese (_see also_ Aliens): Exclusion from Pacific Coast in World War II, 297, 394-395 Jeopardy. _See_ Double Jeopardy. Judgments (_see also_ Full Faith and Credit): Award of execution as essential to finality of, 511-512 Judges (Federal) (_see also_ Courts (Federal)): Impeachment, 502-504 of Legislative courts, tenure, salary, 534-535 Nonjudicial functions, 549 Salaries, diminution by taxation, etc., 105-106, 511, 530-531 Tenure, 511, 528-530 Judges (State), pecuniary interest in verdict, violative of due process, 1131 Judicial Power: Administrative power, as aid to, 521 Defined, scope, attributes of, 511-539, 595 Inherent limitations of, maxims of interpretation, 561-566 Vested in Supreme Court and inferior courts created by Congress, 511-512 Judicial Procedure. _See_ Courts (Federal); Courts (State). Judicial Review. _See_ Courts (Federal). Juries (_see also_ Courts (Federal); Public Officers of the United States): Challenges in selecting, "blue ribbon" juries, State regulations as to, 1109-1111 in Common law suits in Federal courts, functions of judges and, right to, waiver, 891-897 in Criminal trials in Federal courts, waiver, etc., 638, 878-880 Dispensing with, in State civil proceedings, 1096 Right to, in State criminal trials, 1109-1111 Selection, number, size of vote by, power of States to alter, 1096, 1109-1111 Jurisdiction, defined, distinguished from judicial power, 511-512 K Kingbolt Clause. _See_ National Supremacy. L Labor (_see also_ Child Labor; Full Faith and Credit Clause; President: Powers; Women): Collective bargaining; closed-shop; picketing; strikes, slow-downs, and boycotts; unions; yellow-dog contracts, State regulations as to, 781, 991-994, 1158 Employer's freedom of speech, Wagner Act as curb on, 793 Employment agencies, State regulation of fees, etc., 997, 1023 Federal regulation, under commerce clause, 139-143, 152-158 Hours of, State regulations of, 968, 1158-1159 Injunctions in disputes, issuance by Federal courts, etc., not productive of slavery, 484-486, 621-622, 953 Liberty of contract, State interference with, 985-994 Longshoremen's and Harbor Workers' Act, 581-582 Loyalty affidavits required of union officers, 794-795 Picketing, control of, as restraint on freedom of speech, press, 781-783 Railway, Federal regulations as to, 139-143 State laws regulating, conflict with Federal, effect, 249, 251-252 Steel Seizure Case, 489-499 Union publications supporting candidates, restraints on, 793 Wages, State regulations as to payment, rates, assignments of, 987-988, 1020-1021, 1158 Wartime controls of, wage stabilization, 392, 395-397 Workmen's compensation laws (State), application to maritime workers, abolition of common law defenses, etc., 311, 580-582, 989-990, 1091 Work stoppages via union meetings during working hours, prohibition, 809 Land, Air and Naval Forces (_see also_ Militia; President: Powers): Air Force, establishment, 284 Congress, power to raise, support, regulate, 279, 283-287, 299-300 Conscription, validity, 284-285, 299-300 Courts martial, judicial review of, when a due process requisite, 285-286, 851 Courts martial, Presidential sanction of, decrees of, 476 Jury, not open to indictment or trial by, 285-286, 838 Offenses arising in, trial, punishment, 285-286 Personnel, care of, Federal regulations as to, 285, 299-300 Recruiting, etc., of, utterances obstructing, prohibition, 794 Legal Tender. _See_ Money. Legislative Power: Delegation of, 71-82 Enumeration of; doctrine of, 71-73 Preamble no source of, 59-60 Legislative Process. _See_ Congress; Internal Organization; Legislative Power. Libel, group, 802-804 Liens, on vessels, under State laws, 235 Limitation of Actions, State enactment of, due process restrictions on, 1092-1093 Liquor. _See_ Indians; Intoxicating Liquors. Lobbying, as right of petition, regulation, 810 Lotteries. _See_ Gambling. M Mandamus. _See_ Courts (Federal); States: Officers. Maritime Law. _See_ Admiralty. Marque and Reprisal, Letters of, grant by Congress, 279 Martial Law: Effect on personal liberty, 484 Nature of, when lawfully invoked, 398-403 Meat, importation, etc., of, State regulation, 236-238 Migration, interstate, State curbs on, 241-242, 968 Military Commissions, trial by, validity, 294, 399-403 Military Forces. _See_ Land, Air, and Naval Forces. Military Law. _See_ Land, Air and Naval Forces; Militia. Militia: Jury, not open to indictment or trial by, 837-838 Powers of Congress, States, as to, 299-300 Refusal to serve with, penalty, 299 Milk (_see also_ Conservation): Export, import, sale of, State regulations as to, 236-238, 244-245, 1030-1031 Price-fixing under Agricultural Marketing Agreement Act, 159-160 Price, purity of, State regulations as to, 236-238, 244-245, 996-997, 1030-1031, 1154 Mob violence. _See_ Confrontation; Domestic Violence; Due Process of Law. Money (_see also_ Bills of Credit; Counterfeiting): Coinage and borrowing powers of Congress, relation, etc., 265-267, 309-310 Gold clauses in contracts, abrogation, powers, of Congress as to, 265-267, 287 Legal tender, powers of States as to, 326 Legal tender, Treasury notes as, 266-267, 287 Money Lending, State regulation of, 1020-1021 Monopolies. _See_ Restraint of Trade. Morals, State protection of, 1031-1032 Mortgages (_see also_ Taxation): Moratorium, when valid, 354, 359-361 Motion Pictures (_see also_ Freedom of Religion, Speech, Press, Assembly): Censorship, importation of, State regulations as to, 237, 787-788 Motor Vehicles (_see also_ Carriers; Public Utilities; Taxation: State): Advertising signs on, limited prohibition, validity, 1032-1033, 1153-1154 Insurer of operators of, liability, 1022 Nonresident owners, etc., appointment of agent for service of process, 660-661, 1074 State, etc., regulatory powers as to, 211-212, 226-228, 250, 1032-1033, 1153, 1155 Municipal Corporations. _See_ States: Political Subdivisions. N National Banks: Incorporation, etc., by Congress, 265, 267, 309 State laws, application to, national supremacy, 725 State taxation of, 729, 733 National Industrial Recovery Act (NIRA), void, 152-153 National Supremacy (_see also_ National Banks; Public Officers of the United States; States: Courts; Taxation: State): Conflict with Tenth Amendment, 915-921 Examples, 122, 134-137, 139-140, 148, 231, 276, 310, 386, 416-418, 437-438, 554-555, 568-569, 626-627, 631-633, 636-637, 698, 702, 721-722, 724-739, 868, 916, 919, 966 Federal contractors, State taxation of, application of State laws to, 726, 730-732 Federal instrumentalities, securities, State tax exemption, 728-736 Meaning, interpretation, of, 721-722, 724-736 State laws enacted during insurrection, effect, 728 Naturalization: Cancellation for fraud, residence abroad, 256-257 Powers of Congress as to, 254-259 Retroactive effect of, 258 Navigable Waters (_see also_ Flood Control; Hydroelectric Power; Navigation; Vessels): Defined, 577-578, 867-868 Regulatory powers of Congress, States as to, 126-132, 228-231 Riparian owners injured by improvement of, right to compensation, 867-869 Navigation (_see also_ Hydroelectric Power; Navigable Waters): Instruments of, docks, ferries, etc., Federal regulation of, 128-130 Obstructions to, Federal restraint of, 126-128 Navy. _See_ Land, Air and Naval Forces. Nazi Saboteurs, trial by military commission, 285-286, 401-402 "Necessary and Proper" Clause, 110, 121, 266-267, 307-311, 426-427 Negroes: Citizenship of, 963-964 Home ownership, occupancy, public restrictions on, private covenants prohibiting, validity, 1028, 1142, 1161 Right to vote, discriminatory devices denying, validity, 1163-1164, 1183-1186, 1208 Segregation in schools, conveyances, laws as to, validity, 1161-1163 Segregation, State powers as to interstate carriers, 225-226, 230 Nobility, titles of, not granted by United States, nor accepted by public officers without consent of Congress, 324 O Oaths, powers of Congress as to, 736 Obligation of Contracts. _See_ Contracts. Officers of the United States. _See_ Public Officers of the United States. Oil (_see also_ Taxation: State): Conservation, powers of States, 1025-1026 Damages from drilling, requiring bond to cover, 1026 Leases from United States, cancellation for fraud, 311 under Marginal belt along coast, powers of United States as to, 325, 700 "Okies", State curbs on entry, 242, 968 Oleomargarine (_see also_ Taxation): State laws prohibiting, regulating sale of, 239-240, 1030, 1154 Original Package Doctrine (_see also_ Taxation: State): Effect on State regulation of cigarettes, convict-made goods, liquors, oleomargarine, etc., 236-241 Interstate and foreign commerce, relation to, 177-178, 180, 182-189, 194, 236-241, 362-363 P Packers and Stockyards Act. _See_ Commerce. Pardons: Congressional powers as to; amnesty, etc., 324, 411, 527-528 for Contempts, limitations on President, 408-409, 521 Legal nature, essentials, of; limited effect, 324, 406-407, 409-411, 527-528 of Participant in Civil War, effect, 1173 Patents: Nature and scope of right secured, 274-275 Patentable discoveries, 271-273 State powers as to, 276 Peddlers, State laws regulating, 786, 1155-1156 Penalties. _See_ Crimes and Offenses. Peonage. _See_ Involuntary Servitude. People of the United States: "Citizens", synonymous with Sovereignty, possessors of, 59-60 Perjured testimony, conviction on, validity, 1124-1126 Petition, Right of. _See_ Freedom of Religion, Speech, Press, Assembly. Pharmacies, corporate operation of, State regulation as to, 1023 Picketing. _See_ Labor. Piers. _See_ Wharves and Docks. Pipe Lines. _See_ Carriers; Public Utilities. Piracy, power of Congress to define, punish, 277-279 Plants. _See_ Quarantine Laws. Police Power: Corporations, contracts of, impairment by, 345-348, 350-352 Federal, as limited by due process clause, 859-862 Foreign commerce, in relation to, 215-217 Implementation of, by Federal prohibition of commerce, 169-173 Interstate commerce, in relation to, 215, 217-252, 968, 1232-1233 State, as limited by equal protection clause, 1144-1146, 1153-1163 State, conflict with national supremacy, 722-726 State, defined, due process clause as restraint on, 974-980, 982-1036, 1091 State, impairment of contracts by, 357-361 Political Questions, concept of, examples, disposition by Federal courts, etc., 93, 282, 309, 420, 425-426, 471-475, 546-549, 562-566, 571-572, 610, 704-705, 712-715, 1064, 1172 Poll Taxes (_see also_ Elections): as Direct tax, 105, 317, 319, 321 Exemptions, validity of, 1152 as Qualification for voting, 970, 1152 Polygamy: Religious precepts, practice pursuant to, 759, 765-766 Seat in House of Representatives refused practitioner of, 89 Posse Comitatus, use by President, etc., in law enforcement, 483 Post Roads. _See_ Roads. Postal Power. _See_ Postal Service; Roads. Postal Service: Congress, power to create, protect, 267-268 Exclusion from mails, censorship, 268-270, 804-805 Federal police power, regulations as to, 859 State regulations affecting, 270 Preamble. _See_ Constitution of the United States. Presentment. _See_ Due Process of Law. President: Cabinet as adviser of, origin, meetings, 405-406 Compensation of, restrictions on alteration, dual salaries, etc., 384, 388 Election: Candidate-elect, death of, powers of Congress as to, 1225-1226 by Electors, number, duties of, etc., dispute over selection, political loyalty, disposition, 383-386, 941-944 by House of Representatives, when, how, 383, 941-944, 1225 Immunity from judicial direction, injunction, etc., 499-501, 546 Impeachment of, 501-503 Message to Congress, 381 Oath of office, effect, time for, 384, 388-389 Powers (_see also_ Administrative Agencies; Constitution of the United States; Delegation of Power; Eminent Domain; Executive Agreements; Extradition; Pardons; Posse Comitatus; Public Officers of the United States; War): to Appoint officers, 404, 412, 445-450, 452-455 as Commander in Chief; a civilian officer, 380, 389-405, 434-435, 470, 476, 486-499 to Conduct foreign relations, 412-413, 423-426, 433-437, 439-443, 445-449, 462-471, 473-475 Courts, use by, to enforce laws, 484-486 Duty to execute the laws; powers derived from, 462, 470-471, 475-499 Exercise of, when in person or by agents, 476-477 to Inform Congress, convene it in special sessions, 462-463 as to Lawmaking, legislative process, approval, veto of bills, etc., 101-105 Military forces, use by, to enforce laws, 482-485 to Negotiate executive agreements, scope, 433-445 to Negotiate, terminate treaties, 412-413, 419-420, 423-426 of Pardon, amnesty, commutation, scope, 406-411 to Protect citizens and property abroad, 487-488 to Receive ambassadors, etc., 462-469 of Recognition, 465-470, 472-473 to Remove officers, 378-380, 404, 453-460, 478-481 to Seize plants, factories, etc., 395-397, 489-499 Source of, nature, scope, 377-381 as to Subordinates, control, protection of, 460-462, 478-481 to Suspend writ of habeas corpus, when valid, 315 to Take measures short of war, 487-489 as to War, 281-283, 290, 297-298, 380, 390-404, 419-420, 434, 470-471, 474-475, 487-489 to Withhold confidential communications from Congress, courts, 460-462 Qualifications, 384, 386-387 Refusal to accept office; resignation, how effected, 388 Succession to; vacancy existing at beginning of term, etc., 384, 387-388, 1225 Term, maximum duration, expiration, 377, 382, 1225, 1237 Price control in wartime, etc., 392-393, 1234 Price-fixing, validity, 159-160, 296 Prices, Charges, Rates, etc. (_see also_ Insurance; Milk; Public Utilities; Stockyards; Warehouses): State laws regulating, 994-1008 Primary Elections. _See_ Elections. Priorities. _See_ Rationing. Prisoners, right to appeals, corrective process, 1137-1139 Privileges and Immunities Clause (Art. IV). _See_ Comity Clause. Privileges and Immunities of State Citizens. _See_ Comity Clause. Privileges and Immunities of U.S. Citizens: Abridgment by States prohibited; scope of protection, 963, 965-971 Enforcement of guaranty by Congress, limits, 1175-1177 Enumerated, 242, 751, 808-809, 967-971 Prizes of War, jurisdiction of Federal Courts as to, 295, 575 Production, Federal regulation of, under commerce clause, 152-160 Professions. _See_ Business, Trades, Professions. Prohibition Amendment (_see also_ Crimes and Offenses; Taxation: Federal), 1213-1214 Prohibition Repeal Amendment, 1213, 1231-1234 Property. _See_ Due Process of Law; States; Taxation; United States. Protective Tariffs, 162 Psychopathic personality, commitment of, validity, 984 Public Debt of the United States: Contracted before adoption of Constitution, 721 Gold clause in U.S. bonds, validity of abrogation, 1174 Validity not to be questioned, 1174 Public Funds of the United States (_see also_ Appropriations): Accounting of receipts and expenditures required, 323 Public Lands. _See_ United States. Public Ministers. _See_ Ambassadors. Public Officers of the States. _See_ States: Officers. Public Officers of the United States (_see also_ Ambassadors; President: Powers; Secret Agents): _Ad interim_ designations by President, 455 Appointment by President, with Senate approval, 453-454 Categories of, "inferior", "employees", etc., 452 Congress, assertion of appointing power, 449-450, 452 Congress, power to condition removal of, by President, 459-460 Control of conduct of, by Congress, 449-452 Disqualification for rebellion, treason; removal of disability by Congress, 1173 Doctrines as to, "estate in office", "nature of office", 457-458 Impeachment of, 455, 457, 501 Indemnification of, by Congress, 501 Jury service by, in Federal criminal trials, 879 Liability of, for excess of authority, 500-501 Membership in Congress restricted, 100-101 "Office", defined, 445-446, 449, 457-458 Political activities of, restricted, 94, 793-794 Presidential electors, status as, 385-386 Recess appointments of, 455 Removal of, by President, 453-460, 478-481 Speaker of the House, President pro tem of Senate, as, 387 State taxation of salaries of, 731 Subordinates of President, Judicial review, restraint of, 500-501 Suits against, removal from State to Federal courts, 568-569 Suits against, sovereign immunity issue, 580-590 Trial of, for offense against, etc., State laws, removal to Federal court, 501, 632-634, 724-728 Public Utilities (_see also_ Carriers; Taxation): Federal regulation of, due process limitations, 860-862 Holding companies, Federal regulation of, 150-151 Rate regulation by States, judicial review of, 972, 998-1008 State, etc., regulatory powers as to, 220-234, 249-251, 1008-1016, 1156 State taxation of, operated interstate, 209-214 Q Quarantine Laws: State, power to adopt, validity, 217, 235-237, 248-249 State, relation to foreign commerce, 217 Quartering Soldiers in Private Homes, 817 R Radio: Censorship of, via broadcast licenses, 787 Federal regulation, seizure, 125-126, 138-139, 486, 495 Railroads. _See_ Carriers. Raisins, marketing of, State regulation, 249 Rates. _See_ Prices, Charges, Rates, Etc. Rationing in wartime, 397-398 Real Property. _See_ Taxation: State. Reciprocal Trade Agreements, 441-442 Recognition of foreign governments, States, 465, 467-470, 472-473 Red-light districts, creation by municipalities, 1031 Rent Control, validity, 296, 358-359, 475, 855 Republican Form of Government, Federal guarantee of to States, 704 Resale Price Maintenance. _See_ Restraint of Trade. Reserved Powers. _See_ Commerce; General Welfare; States. Restraint of Trade: Interstate, Federal prohibition of, 144-149 Monopoly privileges, State grant of, validity, 1160 Resale price maintenance, unfair discrimination, etc., State laws on, 1017 State antitrust laws, 1160 Retroactive. _See_ Contracts; Due Process of Law. Revenue. _See_ Taxation: Federal; Taxation: State. Right to Bear Arms. _See_ Bearing Arms. Rights, other than enumerated in Constitution, retention by people, 909 Roads (_see also_ Public Utilities): Post roads, power of Congress to establish, 132, 267-268 State toll tax on, mail trucks exempt, 268 Rule-Making Power (_see also_ Administrative Regulations), 76-78 S Safety. _See_ Zoning. Schools and Colleges (_see also_ Negroes): Curricula, military training, attendance at, State laws regulating, 984-985 Searches and Seizures (_see also_ Corporations; Due Process of Law; Self-Incrimination; Wiretapping): Evidence obtained by, use of, 830-831 Incidental to arrest, 828-829 Records, requirement of keeping, disclosing as a, 827 Self-incrimination, seizures entailing, etc., effect, 825-827 by State, unreasonable, validity, 1121-1124 Unreasonable, protection against, 823-831 Vehicles, search of, without warrant, 830 Warrants for, necessity, sufficiency of, 825-830 Seat of Government. _See_ District of Columbia. Secret agents, 437-438, 447-449, 1156 Secret Societies, State regulation of, 985, 1156 Securities (_see also_ Blue Sky Laws; Commodity and Security Exchanges): Brokers in, State regulation, 235 Issuance, trading in, Federal regulation, 150-151 Sale of, State regulations as to, 1156 Segregation. _See_ Chinese; Japanese; Negroes. Self-Incrimination: Privilege against, scope, 825-827, 841-844, 1111-1121 in State criminal trials, 1111-1121 Senate (_see also_ Congress; Executive Agreements): Assent to appointment of officers, 453-454 Impeachments, trial by, vote to convict, 91 Members not to serve as presidential electors, 91-92, 94, 1207-1208 Members of, number of, popular election, 91-92, 94, 1207-1208 Officers of, how chosen, 91 Presidential diplomatic agents, powers as to choice of, etc., 437-438, 447-449 Revenue bills, may amend, 101-102 Treaties, powers, duties as to, 412-413, 419, 434, 444-445 Vacancies in, how filled, 1207 Vice-President to preside over, casting vote, when, 91 Separation of Powers (_see also_ Delegation of Power): Immunity of legislative, executive branches from judicial direction, 499-500 Severance Taxes. _See_ Taxation. Sewers, compelling property owners to connect with, 1030 Sherman Act. _See_ Restraint of Trade. Shrimp, State restriction on export of, 245 Slavery (_see also_ Involuntary Servitude): Importation of, not to be prohibited before 1808, 312 Social Security Act, validity, 115 Sound Trucks. _See_ Freedom of Religion, Speech, Press, Assembly. Sovereignty, where located, 59-60, 72 Special Assessments. _See_ Taxation: State. Spending for the General Welfare, powers of Congress, 112-117 Stare Decisis, 565-566 States: Admiralty matters, rights, legislation as to, 574-582 Admission on terms of equality, 697-701 Agreements with other States: Compact clause, history, 365-367 Compacts, consent of Congress to, when required, 365, 367-369 Compacts distinguished from treaties, 367 Compacts, substance, legal effect of, 367-370 Commerce clause, as restraint on powers of, 173-214 Courts (_see also_ Courts (Federal); Full Faith and Credit): Concurrent jurisdiction with Federal courts, comity, 624-627, 636 Consuls, suable in, 571-572 Contempt power of, 517 Controversies with Federal courts, comity, 624-635 Crimes on Indian reservations, jurisdiction, 698 Enforcement of Federal laws by, 635-637, 726-727, 736-739 Federal courts, interference with, illegal, 727-728 Judicial review by, 560 Procedure in; State regulation, due process limitations on, 1089-1096, 1139 Records of territorial court, transfer to, on State admission, 699 Removal of cases from, to Federal courts, 567-569 Review of, by Federal courts, 554-555 Suits in, at common law, in lieu of Federal admiralty actions, 575-576, 578-579 Debts incurred in aid of rebellion, void, 1174 Federal territorial statutes, application after State admission, 698 Governors, veto of congressional districting laws, 93 Immunity from Federal taxation, 105-109 Immunity from suit without consent, 609 Obligations owed to, by United States, 704-705 Offenses on navigable waters, punishment by, 578 Officers: Acting under void statute, status of, 929 Denying constitutional rights, Federal punishment of, 1176-1177 Disqualification for rebellion, treason; removal of disability by Congress, 1173 National duties of, limits, 736-737 Office of, when a contract not to be impaired, 340-341 Political activity of, application of Federal Hatch Act, etc., 116, 793-794 Presidential electors, status as, 385-386 Restraint of, by Federal courts, 629-630 Salaries of, subject to Federal income tax, 105-106, 108 Suits against, when immune from, 930-935 Test oaths for, illegal, 736 Political Subdivisions: Bonds and charters of municipal corporations, impairment by States, 339-340, 356-357 Federal taxation, scope of immunity from, 106-109 Municipalities, equal protection of the laws, not entitled to invoke, 1143 State control of, effect of due process clause on, 1035-1036 Powers denied to, 325 Property owned during territorial status, effect of admission as, on title (off shore oil), 700 Property transfers during territorial status, effect on, of admission as State, 700 Reserved powers of, invasion by treaty-making power, etc., 428-430, 915-921 Suits against, scope of immunity from, consent, waiver, 929-936 United States, conditions, reservations, in cessions of property to, 305-307 Steel Seizure Case, 489-499 Sterilization, sexual, State laws providing for, 984, 1161 Stockyards, State regulation of charges by, 996 Succession to Property, right of election to surviving spouse, effect of creation, 1033 Suffrage. _See_ Elections. Sunday Blue Laws, 1031, 1154 Supreme Court of the United States: Appellate jurisdiction, limitation of, by Congress, 614-615 Chief Justice, presides at President's impeachment trial, 91 Concurrent jurisdiction with lower Federal courts, 613 Full faith and credit clause, application by, 682-685 Legislative courts, appellate jurisdiction over, 536 Original jurisdiction, 571, 591-595, 611-613 Protection of, against noises, banners, etc., 792 Rule-making authority, derivation, etc., 608 Size, internal organization, sessions, etc., 528-529 State court decisions, review by, 570-571 State procedure, scope of review by, 1140-1141 State's corrective process in criminal trials, review of adequacy, by, 1138-1139 T Tariffs, as regulation of foreign commerce, 162 Taxation: Federal: Capital gains, computing income tax on, 1197-1200 Cooperatives, unincorporated joint stock associations, earnings, 1196 Corporate dividends, when taxable as income, 1193-1195 Corporate earnings, undistributed, etc., when taxable as income, 1195-1197 Customs, import duties, 319 Direct, apportionment, defined, 89, 105, 317-319, 321 Discriminatory, retroactive, etc., due process limitations, 862-864 in District of Columbia, 303-304, 321 Excises, defined, 318-321, 1191 Exports, exempt from, 105, 321-322 Extermination by, 111 Forbidden subjects, 105-109 Income, allowable deductions, exemptions, losses, etc., 1198, 1200-1201 Income, as direct, or excise, tax, 319-321, 1191-1192 Income, due process limitations, 862-863 Income tax, power of Congress to levy, 1191-1201 Inheritance tax, 1192 Levy as penalty to enforce Federal, State laws, 1196-1197, 1214 License taxes, 110 Power of Congress to levy, 105, 110-117 Preferences to ports of one State, duties on outbound vessels, prohibitions, 322-323 Regulation by taxation, 110-112 on Rental value, when a direct, or income, tax, 1200 Reserved powers of States, invasion by, 109, 916-919, 921 Revenue bills, originate in House of Representatives, 101-102 Suits to recover taxes, alteration of right, 858 Tariffs, protective, 112 Uniformity of duties, imports, excises, 105, 109-110 of Unlawful articles, 1201, 1214 State: Airplanes operated in interstate commerce, 210-211, 1052 Banks, 1147-1148 Businesses selling goods of interstate origin, 186-192 Carriers operated in interstate commerce, 179-180, 192-193, 197-203, 206-213 Collection by bailees, employers, retailers, safe deposit companies, validity, 1061 Collection, levy of, procedural due process in, jurisdiction, etc., 1039-1062 Commerce clause as restraint on, 177-214 Companies engaged in interstate commerce, gross receipts, income, franchise taxes, etc., 179-180, 186-198, 202-215 Considerations as to validity; public purpose, severity, benefit, 1036-1037, 1041-1043 Copyright royalties, 734 Corporations engaged in interstate commerce, 193-204, 206-215, 1040, 1049-1053, 1148, 1151, 1153 Due process clause as restraint on, 1036-1062 Equal protection clause as limitation on, 1146-1153 Equitable interest of purchaser of U.S. property, 306 Exemption, as a contract protected against impairment, 341-343, 347-348, 350 Exports, imports, when valid, 362-365 of Federal contractors, 730-732 of Federal instrumentalities, functions, securities, etc., 728-737 Federally chartered corporations, property of, 732 Goods in interstate transit, restrictions, 179-183 Income, due process, equal protection clause limitations on; jurisdiction; collection by withholding, etc., 1039, 1053-1055, 1061, 1150 Inheritance, estate, gift; due process, equal protection clause, limitations on, 1037-1039, 1045-1049, 1061, 1150-1151 Insurance companies; due process, equal protection clause, limitations on, etc., 1055-1056, 1062, 1148-1150 Insurance companies engaged in interstate commerce, 214-215 Lessees of Indian lands, validity, 735 Motor vehicles, 211-213, 1151 Multiple, 1041-1056 Multiple taxation test applied to interstate commerce, 204-208, 1052 Nonresident, scope for discrimination, 692-693 Oleomargarine, 1148 Preference of ports, prohibition on, inapplicable, 322 Property employed in interstate commerce, apportionment, 198-212 Public utilities, 213, 1039-1040, 1050-1053, 1148, 1151-1153 Railroads, 1052-1053 Real property, due process, equal protection clause, limitations on assessment and collection, jurisdiction, etc., 1039-1041, 1057-1062, 1152-1153 Sales and use taxes, application to interstate commerce, 184-192 Severance, due process limitations, 1039 Special assessments, due process limitations on, 1040-1041 Suits to recover, when within State immunity from suit, 935-936 Tangible, intangible personalty, due process limitations on, jurisdiction, 1041-1053 Tonnage duties, restrictions on, 365-366 Trusts, and beneficiaries of, due process limitations on, 1044-1049, 1053 Vessels operated in interstate commerce, 209-210 Teachers. _See_ States: Officers. Telegraph (_see also_ Public Utilities): State regulation of, 231-232 Territories (_see also_ Citizenship): Acquisition by conquest, disposal of, 403 Congress, powers as to, 703 Constitutional guaranties, application to, 703 Courts of, powers of Congress as to, etc., 310, 533-535 Federal taxes, uniformity requirement as to, 109-110 Unincorporated; rights of persons accused of crimes in, 877 "Third Degree". _See_ Confessions. Tobacco (_see also_ Cigarettes), 240, 990 Tonnage Duties. _See_ Taxation: State. Trade-Marks; Advertisements, nature of, in relation to patents, copyrights, 276 Trades. _See_ Business, Trades, Professions. Trading Stamps, State licensee fees on use, 1019 Transportation. _See_ Carriers; Commerce; Vessels. Treason, definition, requirements for conviction, punishment, 638-646 Treaties (_see also_ Executive Agreements; Indians; Political Questions; President: Powers; Senate; States): Effect of war on, 417 Exterritorial rights granted by, effect, 877 Implementation, repeal, termination by Congress, 418-421, 423-427, 431-432 Interpretation of, by whom, 423, 425-426 as Law of the land; as contract; effect on State laws, State courts, 413-425, 431-432 when Self-executing, 417-418 as Source of Federal power, limits, 426-431 States not to enter into, 325 Termination as international compact, how, by whom, 423-426 Troops (_see also_ Land, Air and Naval Forces): Keeping in peacetime, by States, 365-366 U Uniformity of Federal taxes. _See_ Taxation: Federal. Unit Rule in State Taxation of Carriers, 200-201 United States: Obligations owed to States, 704-705 Property ceded by States, conditions, reservations as to, 306-307 Property of, jurisdiction as to, 305-307 Property of, powers as to, disposal, etc., 701-703 Property of, State powers as to, taxation of, 305-307, 732 Public lands of, powers of States as to, 305, 702-703 Public lands, powers as to, 701-702 V Vaccination, compulsory, State laws providing for, 984 Vessels (_see also_ Carriers; War): on Inland waters, Federal regulation of, 128-130 Liens on, under State laws, 235 on Navigable waters, State regulation of, 228-231 Rates for service on, State regulation, 229, 231 Safety devices on, Federal requirement, 139 State taxation of, due process, etc., limitations, 209-210, 1052 Vice President: Candidate elect, death of, powers of Congress to fill vacancy, etc., 1225-1226 Election of, duties of electors, Senate, 383, 941-944, 1226 as Presiding officer in Senate, casting vote only, 91 Resignation, refusal to accept, how evidenced, 388 Succeeds to Presidency, when, 384, 387-388, 941-942 Term, beginning of, etc., 377, 1225 Vacancy in, power of Congress to fill, 384, 387-388 Voting. _See_ Elections. W Wages. _See_ Labor. War (_see also_ Eminent Domain; Japanese; President: Powers): Congress, power to declare, etc., 279-282, 286-293, 296-298, 395-397, 399, 401-404 Dates of beginning, termination, how fixed, 282 Declaration, when required, 281-282 Economic mobilization during, 280-289, 296 Eminent domain in time of, liability of United States, 298 Enemy aliens, restraint of, 297-298 Enemy property during, 294-296 Laws of, application, 293-294 Legislation enacted in prior wars; postwar effect, 286-288, 292-293 Personal liberty, restraint of, during, 297-298 Powers, nature and source of, 279-281, 291-293 Preparation for, in time of peace, 291-292 President, powers of, absent a declaration of, 281-282 Private rights during, 293-298 Prizes of, laws applicable to, 295-296 Seditious utterances in, powers of Congress as to, 297, 794 Terminated, by whom, 474-475 Theatre of war, defined, by whom, 294 Treaty-making power, involvement in, pursuant to, 419-420 War Crimes, prosecution for, 402-403 Warehouses, grain, tobacco, State regulation of charges, etc., 251, 994, 996 Warrants. _See_ Searches and Seizures. Water (_see also_ Public Utilities): Diversion by riparian owner, State prohibition, 1026 Restrictions by States on export of, 243 Weights and Measures, 265, 1018 Wharves and Docks: in Navigable streams, State powers as to, 229-231 Purchased with State consent, Federal jurisdiction over, 305-306 Wheat, Federal regulation of production of, 159 Wills. _See_ Administration of Estates; Succession to Property. Wireless. _See_ Radio. Wiretapping, 824 Women (_see also_ Elections): Citizenship of, 255, 259, 963 Employment of, State regulations as to, 988, 1159 Voting rights of, 1219-1220 Workmen's Compensation. _See_ Full Faith and Credit Clause; Labor. Work-Or-Fight, work-or-starve laws, validity, 952-953 Wrongful Death Statutes, State enforcement in Federal courts, 574, 579 Y Yellow-Dog Contracts. _See_ Labor. Z Zoning, building code, regulations, validity, 1027-1029, 1154-1156 * * * * * TRANSCRIBER'S NOTES: Introduction: page XII--added period after "thereby" to complete four period ellipsis page XIV--corrected spelling of "kidnaping" to "kidnapping" page XXI--corrected spelling of "injuction" to "injunction" and added period after "law" to complete four period ellipsis page XXII--corrected spelling of "achivement" to "achievement" page XXVIII--added opening quotation mark to Justice Holmes' remarks page XXIX--corrected spelling of "Genessee" to "Genesee" in "The Genessee Chief" page XXXIII--added period after "etc" page XXXIV--added period after "etc" Footnote 23--corrected case citation from "Dall. 54, 74" to "3 Dall. 54, 74" Footnote 61--removed comma after "Dall." Constitution of the United States: page 22--corrected spelling of "questiond" to "questioned" page 54--corrected spelling of "submisssion" to "submission" Article I: page 68--added period after "etc" page 76--corrected spelling of "alloting" to "allotting" page 86--corrected spelling of "apropriate" to "appropriate" page 95--corrected spelling of "caluse" to "clause" page 104--added comma after "order" in "order, resolution, or vote" page 146--corrected spelling of "REVIVED" to "REVISED" in "THE SHERMAN ACT REVIVED" page 146--corrected spelling of "Addystone" to "Addyston" in "Addystone Pipe and Steel Co. v. United States" page 152--corrected "be" to "by" in "It is an attempt for social ends to impose by sheer fiat noncontractual incidents...." page 158--removed comma after "St." in "10 East 40th St. v. Callus" page 160--removed second "within" in "Activities conducted within within the State lines...." page 166--added period after "S" in "247 U.S 251" page 178--corrected spelling of "concesssion" to "concession" page 184--corrected spelling of "doctine" to "doctrine" page 203--removed third "s" from "businesss" in "... taxing State and of the business...." page 216--removed comma after "York" in "New York v. Miln" page 220--corrected spelling of "supoprt" to "support" page 221--removed extraneous quotation mark before (1) page 238--corrected spelling of "manufacure" to "manufacture" page 244--corrected spelling of "comformably" to "conformably" page 249--changed "in" to "In" in two places page 254--corrected spelling of "possesions" to "possessions" and added opening quotes in front of numbered paragraphs page 255--added opening quotation mark in paragraph (7) page 255--added opening quotes in front of numbered paragraphs and removed unmatched quotation mark after "descent" in "... persons of Chinese descent";" page 260--corrected spelling of "esssential" to essential" page 263--corrected spelling of "disolved" to "dissolved" pages 272-273--added opening quotation marks to each paragraph of list of patent court cases page 273--corrected spelling of "reinfore" to "reinforce" page 276--corrected spelling of "Farenheit" to "Fahrenheit" page 277--corrected spelling of "Revolutionory" to "Revolutionary" page 281--added ending quotation mark after "... was liberated with its crew." page 297--corrected spelling of "concered" to "concerned" page 308--corrected spelling of "ocurred" to "occurred" page 343--corrected spelling of "eath" to "each" page 356--corrected spelling of "Justice Frankfurther" to "Justice Frankfurter" page 389--corrected spelling of "probabilty" to "probability" Footnote 55--changed comma to period in "United States ex rel, Tisi v. Tod" Footnote 139--removed comma after "Stat." in "9 Stat., 428, 432-433" and removed question mark in "Grand Depository of the Democratic Principle"? Footnote 215--changed comma after "Dall" to period--"Hollingsworth v. Virginia, 3 Dall, 378 (1798)." Footnote 353--removed comma after "Ball" Footnote 366--removed period after "at" in "311 U.S. at 426." Footnote 472--inserted hyphen in "Cooperative" in "United States v. Rock Royal Cooperative" Footnote 565--removed comma after "Inc." in "Eastern Air Transport, Inc. v. South Carolina Tax Comm'n." Footnote 576--added space between "air" and "transport" Footnote 641--corrected spelling of "colleced" to "collected" Footnote 789--added space between "Di" and "Santo" Footnote 807--corrected "J.R." to "L.R." in "Hannibal & St. J.R. Co. v. Husen" Footnote 1061--removed period after "Elg" in "Perkins v. Elg." Footnote 1121--removed comma in "218, U.S. 302" Footnote 1160--added period after "Wall" in "Eunson v. Dodge, 18 Wall. 414, 416" Footnote 1168--in Justice Bradley quote, moved ending quotation mark after "... made in good faith." Footnote 1190--corrected spelling of "Bleisten" to "Bleistein" in "Bleisten v. Donaldson Lithographing Co." Footnote 1221--removed period after "Bas" in "Bas. v. Tingy" Footnote 1299--changed comma to period after "Wall" in "Miller v. United States, 11 Wall. 268 (1871)." Footnote 1350--corrected "Sere" to "Serè" in "Sere v. Pitot" Footnote 1613--corrected spelling of "Diety" to "Deity" in "... principle which will impose laws even on the Diety...." Footnote 1634--corrected "Cf," to "Cf." Article II page 413--corrected spelling of "soverign" to "sovereign" page 433--changed "they" to "the" in "... by the settlement the effect of these cease <i>ipso facto</i> to be operative...." page 443--added comma after "sell" in "... sell, transfer title to, exchange, lease, lend, or otherwise dispose of...." page 444--added comma after "governments" in "... claims against foreign governments, fourteen were claims...." page 472--removed extraneous "to" in "... assume a fact in regard to to the sovereignty...." page 492--removed " after "action" in "... successful defense of the President's action,"...." page 495--removed comma after "U.S." in "158 U.S., 564, 578" and removed comma after "Wheat." in "4 Wheat., 316, 424" page 502--corrected Alexander Hamilton quote from Federalist No. 65 by changing "a" to "in" in "... as in common cases serve to limit...." Footnote 85--corrected spelling of "Kahanomoku" to "Kahanamoku" in "Duncan v. Kahanomoku" Footnote 121--added period after "H" in "W.H. Humbert" Footnote 158--corrected spelling of "forefeiture" to "forfeiture" and corrected "he" to "be" in "... he the subject matter what it may...." Footnote 172--changed comma to period in "6 Wall. 160" Footnote 187--corrected "procedents" to "precedents" Footnote 207--removed apostrophe after "States" in "... power can consent to the United States being used...." Footnote 281--added period after "Senate" Footnote 286--added missing words [clerical superiors shall receive any gift or] in brackets Footnote 330--added comma after "VI" Footnote 371--removed comma after "S.A." in "Compania Espanola de Navegacion Maritima, S.A.," Footnote 485--corrected spelling of "Dairy" to "Diary" Article III page 515--corrected spelling of "sutained" to "sustained" page 526--added space between "any" and "one" page 530--removed comma after "Revenue" in "O'Malley, Collector of Internal Revenue <i>v.</i> Woodrough" page 540--added closing quotation mark before Footnote 156 anchor page 545--removed extraneous quotation mark before Footnote anchor 187 page 562--corrected spelling of "constitionality" to "constitutionality" page 586--changed first "as" to "an" in "Although as officer acting as a public...." page 587--changed "is" to "it" in "... where is was held...." page 607--corrected spelling of "longr" to "longer" page 611--changed "where" to "were" in "... and other States where so disturbed that...." page 623--corrected spelling of "Consquently" to "Consequently" page 645--added closing quotation mark after "clause 2." Footnote 13--added period after "How" Footnote 200--added period at end of sentence Footnote 270--removed comma after "297" in "United States v. Butler, 297, U.S. 1, 62-63 (1936)" Footnote 379--changed comma to semi-colon after "(1867)" Footnote 422--moved comma from after "339" to after "Texas" in "United States v. Texas 339, U.S. 707 (1950)" Footnote 444--added word "to" in "... was held not [to] be a suit...." Footnote 599--corrected reference from "Wheat. 304 (1816)" to "1 Wheat. 304 (1816)" Footnote 659--changed comma to period in "1 Stat, 335 (1793)" Footnote 660--added semi-colon after "(1856)" Footnote 737--changed semi-colon to comma in "9 Fed. Cas. Nos. 5,126; 5,127 (1799, 1800)", added opening parenthesis before "1863" in "26 Fed. Cas. No. 15,254 1863)" Article IV page 650--added period after "etc" page 651--corrected "STATIC RELATIONS" to "STATE'S RELATIONS" page 652--corrected spelling of "fulfilment" to "fulfillment" page 681--changed "Where" to "Were" in "Where the company's contention accepted...." page 687--corrected spelling of "Souse" to "House" in "Slaughter-Souse Cases Footnote 3--changed comma to period after "Brock" Footnote 66--changed period to comma after "287" in "... 317 U.S. 287. he would prefer...." Footnote 74--corrected spelling of "fedual" to "federal" Footnote 97--corrected "N.O.R.R." to "N.O.R." in "Texas & N.O.R.R. Co. v. Miller" Footnote 171--corrected spelling of "Pawloske" to Pawloski" in "Hess v. Pawloske" Footnote 265--corrected "cf" to "cf." Article V page 712--changed "... quorum--, and not ..." to "... quorum--and not ..." page 715--corrected spelling of "Inamsuch" to "Inasmuch" Aricle VI page 719--added period after "etc" page 722--corrected spelling of "nul" to "null" page 733--corrected spelling of "funtions" to "functions" page 736--corrected spelling of "Pinckeney" to "Pinckney" Footnote 2--corrected case citation from "Wheat. 316" to "4 Wheat. 316" Footnote 42--changed comma to period in "9 Wheat, 788 (1924)" Article VII page 749--added opening quotation marks to paragraphs beginning "Art. 1", "Art. 2", "Art. 3", and "Art. 6" Bill of Rights Footnote 6--added period after "cit" in "op. cit" Amendment 1 page 755--added period at end of "Hague v. C.I.O" page 758--corrected spelling of "Calvanist" to "Calvinist" page 759--corrected "I" to "1" in "I Tuck. Bl. Com." page 761--changed ending double quotation mark to single in 'released time," page 771--removed comma after "Dallas" in "1 Dallas, 319, 325" page 785--corrected spelling of "anouncements" to "announcements" page 786--corrected spelling of "forbiding" to "forbidding" page 794--removed period after "et" in "et. al." page 795--corrected spelling of "verthrowing" to "overthrowing" page 797--corrected spelling of "docrine" to "doctrine" page 800--corrected spelling of "trivalities" to "trivialities" page 806--inserted "of" into the phrase "in any accurate meaning of these words" Footnote 22--corrected spelling of "Morace Mann" to "Horace Mann" Footnote 167--changed comma to period after "Comm'n" in "Communications Comm'n, v. N.B.C." and added comma after N.B.C. Footnote 184--corrected spelling of "Terminello" to "Terminiello" in "Terminello v. Chicago" Amendment 4 page 825--corrected spelling of "procedings" to "proceedings" page 826--inserted "than" after "other" in "... if it is unreasonable on grounds other self incrimination...." Amendment 5 page 839--corrected spelling of "defendent" to "defendant" page 841--removed hyphen in "accusare-seipsum" page 850--removed period after "WJR" page 852--corrected spelling of "ailen" to "alien" page 869--corrected spelling of "benefitted" to "benefited" Footnote 148--added hyphen in "Cooperative" in "United States v. Rock Royal Cooperative" Footnote 155--corrected spelling of "Idid." to "Ibid." Footnote 160--corrected spelling of "Addystone" to "Addyston" in "Addystone Pipe and Steel Co. v. United States" Footnote 165--added hyphen in "Cooperative" in "United States v. Rock Royal Cooperative" Footnote 212--removed comma after "299" in "299, U.S. 232 (1936)" Footnote 241--corrected spelling of "Untermyer" to "Untermeyer" Footnote 261--added comma after "U.S." in "Brown v. U.S. 8 Cr. 110 (1814)" Amendment 6 page 882--corrected spelling of "willfullness" to "willfulness" page 883--corrected spelling of "poltical" to "political" Amendment 7 page 896--removed extraneous "had" in "... it was held that a trial court had had the right...." Amendment 8 page 903--removed semi-colon in "Who are to be the judges?;" Footnote 5--corrected "USCA" to "U.S.C.A." Amendment 11 page 929--corrected "Article 11" to "Amendment 11" page 933--corrected spelling of "legislaion" to "legislation" Footnote 4--corrected case citation from "Wheat. 738 (1824)" to "9 Wheat. 738 (1824)" Footnote 20--corrected case citation for "Pennoyer v. McConnaughy" from "140 U.S. (1891)" to "140 U.S. 1 (1891)" Footnote 23--added period after "rel" in "ex rel" Amendment 12 page 944--corrected "undistinguishable" to "indistinguishable" Amendment 13 page 952--in (5), added final period to "U.S.C.A." Amendment 14 page 957--corrected page number reference from "669" to "969" page 958--added period after "etc"--three occurrences on page page 960--added period after "etc"--two occurrences on page page 961--added period after "etc"--one occurrence on page page 977--corrected spelling of "willingess" to "willingness" page 1013--added opening single quote before "the" in "... the furnishing of such necessary...." page 1014--removed comma after "railroad" in "... provides that a railroad, shall be responsible...." page 1016--corrected "it" to "its" in "... unable to recoup it original investment...." page 1030--added comma after Footnote anchor [403], in "... statutes ordering the destruction of unsafe and unwholesome food[403] prohibiting the sale...." page 1030--changed "forbade" to "forbid" in "... to forbade the sale of drugs by itinerant vendors...." page 1043--in (10), changed "later" to "latter" in "... protected by the later and subject to its jurisdiction." page 1051--corrected spelling of "coporations" to "corporations" page 1058--changed "than" to "that" in "... opportunity to submit evidence and arguments being all than can be adjudged vital...." page 1071--corrected spelling of "determintion" to "determination" page 1114--changed comma to period after "State" in "... the constitutional rights of the States," page 1114--corrected spelling of "consitutionally" to "constitutionally" page 1134--added period after "rel" in "... in Louisiana ex rel Francis" page 1153--corrected spelling of "arbitary" to "arbitrary" Footnote 12--added hyphen in "Coop." in "Warehouse Co. v. Burley Tobacco Growers' Coop. Marketing Asso." Footnote 75--removed comma after "Cr." in "6 Cr., 87, 128 (1810)" Footnote 94--removed period after "Board" in "National Labor Relations Board. v. Jones & Laughlin" Footnote 104--corrected spelling of "Schimdinger" to "Schmidinger" in "Schimdinger v. Chicago" Footnote 157--removed "in" in "... and intimidations of in injury to future patrons...." Footnote 219--corrected spelling of "revelant" to "relevant" Footnote 221--changed period to comma after "(1944)" Footnote 446--added period after "rel" in "ex rel" Footnote 533--changed comma to period in "4 Wheat, 316, 429 (1819)" Footnote 540--removed unmatched quotation mark Footnote 695--removed comma in "19, Wall. 107 (1874)" Footnote 698--corrected spelling of "Millikin" to "Milliken" in "Millikin v. Meyer" Footnote 700--corrected spelling of "Pawlocki" to Pawloski" in "Hess v. Pawlocki" Footnote 761--corrected spelling of "untrammelled" to "untrammeled" Footnote 804--changed comma to period in "Wllson v. North Carolina ex rel, Caldwell" and corrected spelling to "Wilson" Footnote 854--removed comma in "342, U.S. 881 (1951)" Footnote 874--inserted comma after "York" in "Moore v. New York 333 U.S. 565, 569-570 (1948)" Footnote 902--corrected "Section I" to "Section 1" Footnote 937--corrected spelling of "Holahan" to "Holohan" in "Mooney v. Holahan" Footnote 954--corrected spelling of "habeus" to "habeas" Footnote 969--added closing quotation mark after "invasion." Footnote 974--corrected spelling of "gurantees" to "guarantees" Footnote 1016--corrected "Q.R.R." to "Q.R." in "Chicago, B. & Q.R.R. Co. v. Iowa" Footnote 1048--corrected "exexempted" to "exempted" Footnote 1104--changed comma to semi-colon before "oleomargarine" Footnote 1203--corrected spelling of "Atchinson" to "Atchison" in "Atchinson, T. & S.F.R. Co. v. Matthews" Amendment 16 page 1189--added period after "etc" Amendment 18 page 1213--changed comma to period after "1935" in "August 27, 1935," Acts Held Unconstitutional page 1241--corrected spelling of "Reichart" to "Reichert" in "Reichart v. Felps" page 1246--corrected spelling of "waranted" to "warranted" page 1247--changed "1" to "I" in "article 1, section 8, clause 3" page 1250--in 51., removed comma after "Collector" in "Nichols, Collector, v. Coolidge et al." page 1254--in 73., corrected "article I, section 3, clause 9" to "article I, section 9, clause 3" Table of Cases page 1257--removed comma after 175 in "Addyston Pipe & Steel Co. v. United States, 175, U.S. 211 (1899)" page 1258--added period after "al" in "et al" page 1259--removed period after "ex" in "Ashe v. United States ex. rel. Valotta" page 1261--added period after "S" in "195 U.S 375" page 1262--corrected spelling of "Perovick" to "Perovich" in "Biddle v. Perovick" page 1263--removed comma after "451" in "342 U.S. 451, (1952)" page 1264--removed comma after "Co." in "Brown v. Western Ry. Co., of Alabama" page 1268--corrected spelling of "Whitten" to "Whitton" in "Chicago & Northwestern R. Co. v. Whitten" page 1270--removed comma after "R." in "Columbia R., Gas & E. Co. v. South Carolina" page 1270--added period after "Pick" in "3 Pick (Mass.) 304 (1825)" page 1270--corrected spelling of "Spratly" to "Spratley" in "Connecticut Mut. Ins. Co. v. Spratly" page 1274--corrected spelling of "Kahanomoku" to "Kahanamoku" page 1276--removed comma after "91" in "91, U.S. 29 (1875)" page 1285--removed hyphen in "Holyoke Water-Power Co. v. Lyman" page 1289--removed comma after "Bay" in "Kaukauna Water Power Co. v. Green Bay, & M. Canal Co." page 1290--corrected spelling of "Morses" to "Morss" in "Knapp v. Morses" page 1291--removed period after "ex" in "Lake Erie & W.R. Co. v. State Public Utilities Comm. ex. rel. Cameron" page 1296--changed comma to period after "Wall" in "McCardle, Ex parte, 6 Wall, 318 (1868)" page 1296--corrected spelling of "McCullock" to "McCulloch" in "McCullock v. Maryland" page 1298--added comma after "Missouri" in "Missouri K. & T.R. Co. v. Cade" page 1301--added "Bank," after "Merchants'" in "New Jersey Steam Nav. Co. v. Merchants' 6 How. 344 (1848)" page 1304--corrected spelling of "Hildebrandt" to "Hildebrant" in "Ohio ex rel. Davis <i>v.</i> Hildebrandt" page 1307--removed period after "Elg" in "Perkins v. Elg." page 1310--corrected "O.R.R." to "O.R." in "Randall v. Baltimore & O.R.R. Co." page 1310--added closing parenthesis after "(1935)" in "(Humphrey v. United States, 295 U.S. 602 (1935)" page 1313--corrected "NLRB" to "N.L.R.B." page 1314--removed comma after "Sharp" in "Sharp, v. United States" page 1315--removed period after "Bank" in "Shriver v. Woodbine Sav. Bank." page 1315--corrected spelling of "Galatin" to "Gallatin" in "Sinking Fund Cases (Central P.R. Co. v. Galatin ... )" page 1318--corrected spelling of "Stevans" to "Stevens" in "Stevans v. Gladding" page 1318--added period after "rel" in "Stone v. Mississippi ex rel Harris" page 1318--corrected spelling of "Crowinshield" to "Crowninshield" in "Sturges v. Crowinshield" page 1323--ordered page numbers in numerical order in "United States v. Classic" page 1326--added hyphen in "Cooperative" in "United States v. Rock Royal Cooperative" page 1332--removed comma after "205" in "205, U.S. 354 (1907)" page 1332--corrected punctuation in "Chicago, B. & Q. RR. Co." to Chicago, B. & Q.R.R. Co." Index pages 1337-1361--in Index, added periods after "etc" where missing page 1337--added period after "etc" in "State, procedural due process, notice and hearing, etc" page 1339--changed comma to semi-colon in "Coins and Coinage. See Counterfeiting, Money." page 1342--changed "431-610" to "431, 610" in "Indian tribes, not foreign state for jurisdictional purposes, 431-610" page 1344--added closing parenthesis after "Amendment" in "Due Process of Law (Fourteenth Amendment" page 1347--changed commas to semi-colons in "Health (see also Drugs, Food, Garbage, Milk, Sewers, Water)" page 1350--changed 2nd "Process" to "Power" in "Legislative Process. See Congress; Internal Organization; Legislative Process" page 1350--changed comma to semi-colon in "Mob violence. See Confrontation; Domestic Violence, Due Process of Law." page 1351--changed hyphen to colon in "Municipal Corporations. See States-Political Subdivisions" 
40851	----	(This file was produced from scans of public domain works at the University of Michigan's Making of America collection.) ABRIDGMENT OF THE DEBATES OF CONGRESS, FROM 1789 TO 1856. FROM GALES AND SEATON'S ANNALS OF CONGRESS; FROM THEIR REGISTER OF DEBATES; AND FROM THE OFFICIAL REPORTED DEBATES, BY JOHN C. RIVES. BY THE AUTHOR OF THE THIRTY YEARS' VIEW. VOL II. NEW YORK: D. APPLETON AND COMPANY, 448 AND 445 BROADWAY. LONDON: 16 LITTLE BRITAIN. 1861. ENTERED according to Act of Congress, in the year 1856, by D. APPLETON AND COMPANY, in the Clerk's Office of the District Court for the Southern District of New York. FOURTH CONGRESS.--SECOND SESSION. BEGUN AT THE CITY OF PHILADELPHIA, DECEMBER 5, 1796. PROCEEDINGS IN THE SENATE. MONDAY, December 5, 1796. PRESENT: JOHN ADAMS, Vice President of the United States, and President of the Senate. JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire. BENJAMIN GOODHUE, from Massachusetts. WILLIAM BRADFORD, from Rhode Island. JAMES HILLHOUSE and URIAH TRACY, from Connecticut. ELIJAH PAINE, and ISAAC TICHENOR, from Vermont. JOHN RUTHERFORD and RICHARD STOCKTON, from New Jersey. WILLIAM BINGHAM, from Pennsylvania. HENRY LATIMER, from Delaware. HUMPHREY MARSHALL, from Kentucky. WILLIAM COCKE, from Tennessee. JACOB READ, from South Carolina. JAMES GUNN, from Georgia. The number of Senators present not being sufficient to constitute a quorum, they adjourned to 11 o'clock to-morrow morning. TUESDAY, December 6. ALEXANDER MARTIN, from the State of North Carolina, and WILLIAM BLOUNT, from the State of Tennessee, severally attended. The VICE PRESIDENT communicated a letter from PIERCE BUTLER, notifying the resignation of his seat in the Senate, which was read. The credentials of the after-named Senators were severally read:--Of BENJAMIN GOODHUE, appointed a Senator by the State of Massachusetts, in place of GEORGE CABOT, resigned; of ISAAC TICHENOR, appointed a Senator by the State of Vermont, in place of MOSES ROBINSON, resigned; of JAMES HILLHOUSE, appointed a Senator by the State of Connecticut in place of OLIVER ELLSWORTH, whose seat is become vacant; of URIAH TRACY, appointed a Senator by the State of Connecticut, in place of JONATHAN TRUMBULL, resigned; of JOHN LAURANCE, appointed a Senator by the State of New York, in place of RUFUS KING, whose seat is become vacant; of RICHARD STOCKTON, appointed a Senator by the State of New Jersey, in place of FREDERICK FRELINGHUYSEN, resigned; also, of WILLIAM BLOUNT and WILLIAM COCKE, appointed Senators by the State of Tennessee;--and, the oath required by law being respectively administered to them, they took their seats in the Senate. A message from the House of Representatives informed the Senate that a quorum of the House of Representatives is assembled, and ready to proceed to business. _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES, and acquaint him that a quorum of the Senate is assembled. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled, and ready to proceed to business. A message from the House of Representatives informed the Senate that they have appointed a joint committee, on their part, together with such committee as the Senate may appoint, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. _Resolved_, That the Senate concur in the above resolution, and that Messrs. READ and LIVERMORE be the joint committee on the part of the Senate. _Ordered_, That the Secretary acquaint the House of Representatives therewith. Mr. READ reported, from the joint committee appointed for that purpose, that they had waited on the PRESIDENT OF THE UNITED STATES, and had notified him that a quorum of the two Houses of Congress are assembled, and that the PRESIDENT OF THE UNITED STATES acquainted the committee that he would meet the two Houses in the Representatives' Chamber, at twelve o'clock to-morrow. WEDNESDAY, December 7. JOHN HENRY, from the State of Maryland, attended. A message from the House of Representatives informed the Senate that they are now ready to meet the Senate in the Chamber of that House, to receive such communications as the PRESIDENT OF THE UNITED STATES shall be pleased to make to them. Whereupon, the Senate repaired to the Chamber of the House of Representatives, for the purpose above expressed. The Senate returned to their own Chamber, and a copy of the Speech of the PRESIDENT OF THE UNITED STATES, this day addressed to both Houses of Congress, was read. [For which, see the proceedings in the House of Representatives of December 7, _post._] _Ordered_, That Messrs. READ, TRACY, and BINGHAM, be a committee to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech this day to both Houses of Congress. It was further ordered that the Speech of the PRESIDENT OF THE UNITED STATES, this day communicated to both Houses, be printed for the use of the Senate. _Resolved_, That each Senator be supplied, during the present session, with copies of three such newspapers printed in any of the States as he may choose, provided that the same are furnished at the rate of the usual annual charge for such papers. THURSDAY, December 8. JOHN LAURANCE, from the State of New York, attended, and, the oath required by law being administered to him, he took his seat in the Senate. _Ordered_, That Messrs. STOCKTON, READ, and BINGHAM, be a committee to inquire whether any, and what, regulations are proper to be made, on the subject of the resignation of a Senator of the United States. FRIDAY, December 9. TIMOTHY BLOODWORTH, from the State of North Carolina, attended. A message from the House of Representatives informed the Senate that they have resolved that two Chaplains be appointed to Congress for the present session--one by each House--who shall interchange weekly; in which they desire the concurrence of the Senate. Whereupon, the Senate _Resolved_, That they do concur therein, and that the Right Reverend Bishop WHITE be Chaplain on the part of the Senate. Mr. READ, from the committee appointed for the purpose, reported the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress, at the opening of the session; which was read. On motion that it be printed for the use of the Senate, it passed in the negative. On motion, it was agreed to consider the report in paragraphs; and, after debate, a motion was made for recommitment, which passed in the negative; and, having agreed to amend the report, the further consideration thereof was postponed. SATURDAY, December 10. _Address to the President._ The Senate resumed the consideration of the report of the committee in answer to the Address of the PRESIDENT OF THE UNITED STATES to both Houses of Congress; and, after further amendments, it was unanimously adopted, as follows: We thank you, sir, for your faithful and detailed exposure of the existing situation of our country; and we sincerely join in sentiments of gratitude to an overruling Providence for the distinguished share of public prosperity and private happiness which the people of the United States so peculiarly enjoy. We are fully sensible of the advantages that have resulted from the adoption of measures (which you have successfully carried into effect) to preserve peace, cultivate friendship, and promote civilization, amongst the Indian tribes on the Western frontiers; feelings of humanity, and the most solid political interests, equally encourage the continuance of this system. We observe, with pleasure, that the delivery of the military posts, lately occupied by the British forces, within the territory of the United States, was made with cordiality and promptitude, as soon as circumstances would admit; and that the other provisions of our treaties with Great Britain and Spain, that were objects of eventual arrangement, are about being carried into effect, with entire harmony and good faith. The unfortunate but unavoidable difficulties that opposed a timely compliance with the terms of the Algerine Treaty, are much to be lamented; as they may occasion a temporary suspension of the advantages to be derived from a solid peace with that power, and a perfect security from its predatory warfare; at the same time, the lively impressions that affected the public mind on the redemption of our captive fellow-citizens, afford the most laudable incentive to our exertions to remove the remaining obstacles. We perfectly coincide with you in opinion, that the importance of our commerce demands a naval force for its protection against foreign insult and depredation, and our solicitude to attain that object will be always proportionate to its magnitude. The necessity of accelerating the establishment of certain useful manufactures, by the intervention of the Legislative aid and protection, and the encouragement due to agriculture by the creation of Boards, (composed of intelligent individuals,) to patronize this primary pursuit of society, are subjects which will readily engage our most serious attention. A National University may be converted to the most useful purposes; the science of legislation being so essentially dependent on the endowments of the mind, the public interests must receive effectual aid from the general diffusion of knowledge; and the United States will assume a more dignified station among the nations of the earth, by the successful cultivation of the higher branches of literature. A Military Academy may be likewise rendered equally important. To aid and direct the physical force of the nation, by cherishing a military spirit, enforcing a proper sense of discipline, and inculcating a scientific system of tactics, is consonant to the soundest maxims of public policy. Connected with, and supported by such an establishment, a well regulated militia, constituting the natural defence of the country, would prove the most effectual, as well as economical, preservative of peace. We cannot but consider, with serious apprehensions, the inadequate compensations of the public officers, especially of those in the more important stations. It is not only a violation of the spirit of a public contract, but is an evil so extensive in its operation, and so destructive in its consequences, that we trust it will receive the most pointed Legislative attention. We sincerely lament that, whilst the conduct of the United Sates has been uniformly impressed with the character of equity, moderation, and love of peace, in the maintenance of all their foreign relationships, our trade should be so harassed by the cruisers and agents of the Republic of France, throughout the extensive departments of the West Indies. Whilst we are confident that no cause of complaint exists that could authorize an interruption of our tranquillity or disengage that Republic from the bonds of amity, cemented by the faith of treaties, we cannot but express our deepest regrets that official communications have been made to you, indicating a more serious disturbance of our commerce. Although we cherish the expectation that a sense of justice, and a consideration of our mutual interests, will moderate their councils, we are not unmindful of the situation in which events may place us, nor unprepared to adopt that system of conduct, which, compatible with the dignity of a respectable nation, necessity may compel us to pursue. We cordially acquiesce in the reflection, that the United States, under the operation of the Federal Government, have experienced a most rapid aggrandizement and prosperity, as well political as commercial. Whilst contemplating the causes that produce this auspicious result, we must acknowledge the excellence of the constitutional system, and the wisdom of the Legislative provisions; but we should be deficient in gratitude and justice did we not attribute a great portion of these advantages to the virtue, firmness, and talents of your Administration--which have been conspicuously displayed in the most trying times, and on the most critical occasions. It is, therefore, with the sincerest regret that we now receive an official notification of your intentions to retire from the public employment of your country. When we review the various scenes of your public life, so long and so successfully devoted to the most arduous services, civil and military, as well during the struggles of the American Revolution, as the convulsive periods of a recent date; we cannot look forward to your retirement without our warmest affections and most anxious regards accompanying you, and without mingling with our fellow-citizens at large in the sincerest wishes for your personal happiness that sensibility and attachment can express. The most effectual consolation that can offer for the loss we are about to sustain, arises from the animating reflection, that the influence of your example will extend to your successors, and the United States thus continue to enjoy an able, upright, and energetic Administration. JOHN ADAMS, _Vice President of the United States, and President of the Senate._ _Ordered_, That the committee who prepared the Address, wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. Mr. READ reported from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he would receive the Address of the Senate on Monday next, at twelve o'clock, at his own house. Whereupon, _Resolved_, That the Senate will, on Monday next, at twelve o'clock, wait on the PRESIDENT OF THE UNITED STATES accordingly. MONDAY, December 12. THEODORE FOSTER, from the State of Rhode Island; JOHN BROWN, from the State of Kentucky; and HENRY TAZEWELL, from the State of Virginia, severally attended. _Address to the President._ Agreeably to the resolution of the 10th instant, the Senate waited on the PRESIDENT OF THE UNITED STATES, and the VICE PRESIDENT, in their name, presented the Address then agreed to. To which the PRESIDENT made the following reply: GENTLEMEN: It affords me great satisfaction to find in your Address a concurrence in sentiment with me on the various topics which I presented for your information and deliberation; and that the latter will receive from you an attention proportioned to their respective importance. For the notice you take of my public services, civil and military, and your kind wishes for my personal happiness, I beg you to accept my cordial thanks. Those services, and greater, had I possessed ability to render them, were due to the unanimous calls of my country, and its approbation is my abundant reward. When contemplating the period of my retirement, I saw virtuous and enlightened men, among whom I relied on the discernment and patriotism of my fellow-citizens to make the proper choice of a successor; men who would require no influential example to ensure to the United States "an able, upright, and energetic Administration." To such men I shall cheerfully yield the palm of genius and talents to serve our common country; but, at the same time, I hope I may be indulged in expressing the consoling reflection, (which consciousness suggests,) and to bear it with me to my grave, that none can serve it with purer intentions than I have done, or with a more disinterested zeal. G. WASHINGTON. The Senate returned to their own Chamber, and then adjourned. WEDNESDAY, December 21. THEODORE SEDGWICK, appointed a Senator by the State of Massachusetts, in place of CALEB STRONG, resigned, attended, produced his credentials, and the oath required by law being administered to him, he took his seat in the Senate. TUESDAY, December 27. JOHN EAGER HOWARD, appointed a Senator by the State of Maryland, in place of RICHARD POTTS, resigned, produced his credentials, and the oath required by law being administered, he took his seat in the Senate. JOSIAH TATTNALL, from the State of Georgia, attended. WEDNESDAY, December 28. JAMES ROSS, from the State of Pennsylvania, attended. WEDNESDAY, January 11, 1797. JOHN VINING, from the State of Delaware, attended. THURSDAY, January 12. AARON BURR, from the State of New York, and STEVENS THOMSON MASON, from the State of Virginia, attended. FRIDAY, January 27. JOHN HUNTER, appointed a Senator by the State of South Carolina, in place of PIERCE BUTLER, resigned, attended, produced his credentials, and the oath required by law, being administered to him, he took his seat in the Senate. THURSDAY, February 2. MR. SEDGWICK reported, from the joint committee appointed on the part of the Senate, on the subject of the election of PRESIDENT and VICE PRESIDENT, that, in their opinion, the following resolution ought to be adopted, viz: "That the two Houses shall assemble in the Chamber of the House of Representatives on Wednesday next, at twelve o'clock; that one person be appointed a teller on the part of the Senate, to make a list of the votes as they shall be declared: That the result shall be delivered to the President of the Senate, who shall announce the state of the vote and the persons elected, to the two Houses assembled as aforesaid; which shall be deemed a declaration of the persons elected President and Vice President, and, together with a list of votes, be entered on the journals of the two Houses." WEDNESDAY, February 8. A message from the House of Representatives informed the Senate that they are ready to meet the Senate in the Chamber of that House, agreeably to the report of the joint committee, to attend the opening and examining the votes of the Electors for PRESIDENT and VICE PRESIDENT OF THE UNITED STATES, as the constitution provides. The two Houses of Congress accordingly assembled in the Representatives' Chamber, and the certificates of the Electors of sixteen States were, by the VICE PRESIDENT, opened and delivered to the tellers, appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the VICE PRESIDENT, which was read as follows: For John Adams, 71 votes; for Thomas Jefferson, 68; for Thomas Pinckney, 59; for Aaron Burr, 30; for Samuel Adams, 15; for Oliver Ellsworth, 11; for George Clinton, 7; for John Jay, 5; for James Iredell 2; for George Washington, 2; for John Henry, 2; for Samuel Johnson, 2; for Charles Cotesworth Pinckney, 1; Whereupon the VICE PRESIDENT addressed the two Houses of Congress as follows: In obedience to the Constitution and law of the United States, and to the commands of both Houses of Congress, expressed in their resolution passed in the present session, I now declare that JOHN ADAMS is elected President of the United States, for four years, to commence with the fourth day of March next; and that THOMAS JEFFERSON is elected Vice President of the United States, for four years, to commence with the fourth day of March next. And may the Sovereign of the Universe, the ordainer of civil government on earth, for the preservation of liberty, justice, and peace among men, enable both to discharge the duties of these offices conformably to the Constitution of the United States, with conscientious diligence, punctuality, and perseverance. The VICE PRESIDENT then delivered the votes of the Electors to the Secretary of the Senate, the two Houses of Congress separated, and the Senate returned to their own Chamber, and soon after adjourned. THURSDAY, February 9. The VICE PRESIDENT laid before the Senate the following communication: _Gentlemen of the Senate_: In consequence of the declaration made yesterday in the Chamber of the House of Representatives of the election of a President and Vice President of the United States, the record of which has just now been read from your journal by your Secretary, I have judged it proper to give notice that, on the 4th of March next at 12 o'clock I propose, to attend again in the Chamber of the House of Representatives, in order to take the oath prescribed by the Constitution of the United States to be taken by the President, to be administered by the Chief Justice or such other Judge of the Supreme Court of the United States as can most conveniently attend; and, in case none of those Judges can attend, by the Judge of the District of Pennsylvania, before such Senators and Representatives of the United States as may find it convenient to honor the transaction with their presence. _Ordered_, That the Secretary carry an attested copy of this communication to the House of Representatives. _Ordered_, That Messrs. SEDGWICK, TAZEWELL, and READ, be a joint committee, with such committee as may be appointed on the part of the House of Representatives, to consider whether any, and if any, what measures ought to be adopted for the further accommodation of the PRESIDENT OF THE UNITED STATES, for the term commencing on the 4th day of March next. _Ordered_, That the Secretary desire the concurrence of the House of Representatives in the appointment of a joint committee on their part. A message from the House of Representatives informed the Senate that they have agreed to the report of the joint committee appointed to ascertain and report a mode of examining the votes for PRESIDENT and VICE PRESIDENT OF THE UNITED STATES, and of notifying the persons elected of their election. Mr. SEDGWICK, from the joint committee to whom it was referred to join such committee as might be appointed by the House of Representatives to ascertain and report a mode of examining the votes for PRESIDENT and VICE PRESIDENT OF THE UNITED STATES, and of notifying the persons elected of their election, reported that, having further concurred with the committee appointed by the House of Representatives, that, in their opinion, the following resolution ought to be adopted by the Senate: "_Resolved_, That the Secretary of the Senate be directed to give, by letter, to the Vice President elect, a notification of his election." On motion, it was agreed to insert the PRESIDENT of the Senate instead of the Secretary; and, On motion, it was agreed to reconsider the resolution, and to recommit the report from the joint committee. Mr. SEDGWICK reported, from the joint committee last mentioned, that the committee on the part of the House of Representatives considered themselves discharged from their commission. _Resolved_, That the Senate disagree to the report of the joint committee on the mode of notifying the VICE PRESIDENT elect of his election; and that a committee be appointed on the part of the Senate, to confer with such committee as may be appointed on the part of the House of Representatives, on the report of the joint committee above mentioned; and that Messrs. SEDGWICK, LAURANCE and READ, be the managers at the conference on the part of the Senate. _Ordered_, That the Secretary acquaint the House of Representatives therewith. On motion, that it be "_Resolved_, That the Secretary of the Senate be directed, and he is hereby directed, to lay before the President of the United States a copy of the journal of yesterday, relative to the opening and counting of votes for President and Vice President of the United States, and the declaration of the President of the Senate thereon; and, also, to present to the President of the United States a copy of the notification given by the President elect of the time, place, and manner, of qualifying to execute the duties of his office." _Ordered_, That the motion lie until to-morrow for consideration. FRIDAY, February 10. The Senate resumed the consideration of the motion made yesterday, that the Secretary of the Senate wait on the PRESIDENT OF THE UNITED STATES, and notify him of the election of PRESIDENT and VICE PRESIDENT OF THE UNITED STATES, to commence with the 4th day of March next. On motion, to insert "a committee" in place of "the Secretary," it passed in the negative. And the motion being amended, was adopted as follows: _Ordered_, That the Secretary of the Senate lay before the PRESIDENT OF THE UNITED STATES a copy of the journal of the 8th instant, relative to the opening and counting the votes for PRESIDENT and VICE PRESIDENT OF THE UNITED STATES, and the declaration of the PRESIDENT of the Senate consequent thereon; and, also a copy of the notification given by the PRESIDENT elect of the time, place, and manner of qualifying to execute the duties of his office. A message from the House of Representatives informed the Senate that they agree to the report of the joint committee appointed by the two Houses to confer on a proper mode of notifying the VICE PRESIDENT elect of his election. Mr. SEDGWICK, from the committee of conference above mentioned, reported that the following resolution should be adopted by the House of Representatives: "_Resolved_, That the notification of the election of the Vice President elect be made by such person and in such manner as the Senate may direct." On motion, that it be "_Resolved_, That the President of the United States be requested to communicate (in such manner as he shall judge most proper) to the person elected Vice President of the United States, for the term of four years, to commence 4th day of March next, information of his said election:" It passed in the negative. _Ordered_, That the resolution this day agreed to by the House of Representatives, relative to the notification of the election of the VICE PRESIDENT elect, be referred to Messrs. MASON, HILLHOUSE, and SEDGWICK, to consider and report thereon to the Senate. Mr. MASON reported, from the committee last appointed; and, the report being read, was amended and adopted as follows: _Resolved_, That the PRESIDENT OF THE UNITED STATES be requested to cause to be transmitted to THOMAS JEFFERSON, Esq., of Virginia, VICE PRESIDENT elect of the United States, notification of his election to that office; and that the PRESIDENT of the Senate do make out and sign a certificate in the words following: Be it known, that the Senate and House of Representatives of the United States of America, being convened in the city of Philadelphia, on the second Wednesday in February, in the year of our Lord one thousand seven hundred and ninety-seven, the underwritten Vice President of the United States and President of the Senate did, in the presence of the said Senate and House of Representatives, open all the certificates and count all the votes of the Electors for a President and for a Vice President; by which it appears that THOMAS JEFFERSON, Esquire, was duly elected, agreeably to the constitution, Vice President of the United States of America. "In witness whereof, I have hereunto set my hand and seal, this 10th day of February, 1797." _Ordered_, That the Secretary lay this resolution before the PRESIDENT OF THE UNITED STATES. MONDAY, February 13. On request, the VICE PRESIDENT was excused from further attendance in the Senate after Wednesday next. WEDNESDAY, February 15. _Withdrawal of the Vice-President, (now President elect of the United States,) and his Valedictory to the Senate._ After the consideration of the Executive business, a motion was made that the Senate now adjourn; when the VICE-PRESIDENT addressed them as follows: _Gentlemen of the Senate_: If, in the general apprehension of an intention to retire in that most eminent citizen, to whom all eyes had been directed, and all hearts attracted, as the centre of our Union, for so long a period, the public opinion had exhibited any clear indication of another, in whom our fellow-citizens could have generally united, as soon as I read that excellent Address, which announced the necessity of deliberation in the choice of a President, I should have imitated the example of a character with which I have co-operated, though in less conspicuous and important stations, and maintained an uninterrupted friendship for two and twenty years. But, as a number of characters appeared to stand in the general estimation so nearly on a level, as to render it difficult to conjecture on which the majority would fall; considering the relation in which I stood to the people of America, I thought it most respectful to them, and most conducive to the tranquillity of the public mind, to resign myself, with others, a silent spectator of the general deliberation, and a passive subject of public discussions. Deeply penetrated with gratitude to my countrymen in general, for their long continued kindness to me, and for that steady and affecting confidence, with which those who have most intimately known me, from early life, have, on so many great occasions, intrusted to me the care of their dearest interests; since a majority of their Electors, though a very small one, have declared in my favor, and since, in a Republican Government, the majority, though ever so small, must of necessity decide, I have determined, at every hazard of a high but just responsibility, though with much anxiety and diffidence, once more to engage in their service. Their confidence, which has been the chief consolation of my life, is too precious and sacred a deposit ever to be considered lightly; as it has been founded only on the qualities of the heart, it never has been, it never can be, deceived, betrayed, or forfeited by me. It is with reluctance, and with all those emotions of gratitude and affection, which a long experience of your goodness ought to inspire, that I now retire from my seat in this House, and take my leave of the members of the Senate. I ought not to declare, for the last time, your adjournment, before I have presented to every Senator present, and to every citizen who has ever been a Senator of the United States, my thanks, for the candor and favor invariably received from them all. It is a recollection of which nothing can ever deprive me, and it will be a source of comfort to me, through the remainder of my life, that as, on the one hand, in a government constituted like ours, I have for eight years held the second situation under the Constitution of the United States, in perfect and uninterrupted harmony with the first, without envy in one, or jealousy in the other; so, on the other hand, I have never had the smallest misunderstanding with any member of the Senate. In all the abstruse questions, difficult conjectures, dangerous emergencies, and animated debates, upon the great interests of our country, which have so often and so deeply impressed all our minds, and interested the strongest feelings of the heart, I have experienced a uniform politeness and respect from every quarter of the House. When questions of no less importance than difficulty have produced a difference of sentiment, (and difference of opinion will always be found in free assemblies of men, and probably the greatest diversities upon the greatest questions,) when the Senators have been equally divided, and my opinion has been demanded according to the constitution, I have constantly found, in that moiety of the Senators from whose judgment I have been obliged to dissent, a disposition to allow me the same freedom of deliberation, and independence of judgment, which they asserted for themselves. Within these walls, for a course of years, I have been an admiring witness of a succession of information, eloquence, patriotism, and independence, which, as they would have done honor to any Senate in any age, afford a consolatory hope, (if the Legislatures of the States are equally careful in their future selections, which there is no reason to distrust,) that no council more permanent than this, as a branch of the Legislature, will be necessary, to defend the rights, liberties, and properties of the people, and to protect the Constitution of the United States, as well as the constitutions and rights of the individual States, against errors of judgment, irregularities of the passions, or other encroachments of human infirmity, or more reprehensible enterprise, in the Executive on one hand, or the more immediate representatives of the people on the other. These considerations will all conspire to animate me in my future course, with a confident reliance, that as far as my conduct shall be uniformly measured by the Constitution of the United States, and faithfully directed to the public good, I shall be supported by the Senate, as well as by the House of Representatives, and the people at large; and on no other conditions ought any support at all to be expected or desired. With cordial wishes for your honor, health, and happiness, and fervent prayers for a continuation of the virtues, liberties, prosperity, and peace, of our beloved country, I avail myself of your leave of absence for the remainder of the session. THURSDAY, February 16. The VICE-PRESIDENT being absent, the Senate proceeded to the choice of a PRESIDENT _pro tempore_, as the constitution provides, and the honorable WILLIAM BINGHAM was duly elected. _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES, and notify him of the election of the Honorable WILLIAM BINGHAM, to be PRESIDENT of the Senate _pro tempore_. _Ordered_, That the Secretary notify the House of Representatives of this election. On motion, _Ordered_, That Messrs. SEDGWICK, BURR, and TRACY, be a committee to prepare and report the draft of an answer to the Address delivered yesterday to the Senate, by the VICE PRESIDENT of the United States. TUESDAY, February 21. The bill to accommodate the PRESIDENT was read the third time; and, being further amended, On motion that it be _Resolved_, That this bill pass, it was decided in the affirmative--yeas 28, nays 3, as follows: YEAS.--Messrs. Bingham, Bloodworth, Blount, Bradford, Brown, Foster, Goodhue, Gunn, Henry, Hillhouse, Howard, Langdon, Latimer, Laurance, Livermore, Marshall, Martin, Pain, Read, Ross, Rutherford, Sedgwick, Stockton, Tattnall, Tazewell, Tichenor, Tracy, and Vining. NAYS.--Messrs. Cocke, Hunter, and Mason. So it was _Resolved_, That this bill pass; that it be engrossed; and that the title thereof be, "An act to accommodate the PRESIDENT." Mr. SEDGWICK reported from the committee appointed for the purpose, the draft of an answer to the Address of the VICE PRESIDENT of the United States, on his retiring from the Senate; which was read. On motion, that it be printed for the use of the Senate, it was disagreed to. _Ordered_, That the report lie for consideration. WEDNESDAY, February 22. The Senate took into consideration the report of the committee, in answer to the Address of the VICE PRESIDENT of the United States, on his retiring from the Senate. On motion to recommit the report, it passed in the negative: and the report being amended, was adopted, as follows: SIR: The Senate of the United States would be unjust to their own feelings, and deficient in the performance of a duty their relation to the Government of their country imposes, should they fail to express their regard for your person, and their respect for your character, in answer to the Address you presented to them, on your leaving a station which you have so long and so honorably filled as their President. The motives you have been pleased to disclose which induced you not to withdraw from the public service, at a time when your experience, talents, and virtues, were peculiarly desirable, are as honorable for yourself, as, from our confidence in you, sir, we trust the result will be beneficial to our beloved country. When you retired from your dignified seat in this House, and took your leave of the members of the Senate, we felt all those emotions of gratitude and affection, which our knowledge and experience of your abilities and undeviating impartiality ought to inspire; and we should, with painful reluctance, endure the separation, but for the consoling reflection, that the same qualities which have rendered you useful, as the President of this branch of the Legislature, will enable you to be still more so, in the exalted station to which you have been called. From you, sir, in whom your country have for a long period placed a steady confidence, which has never been betrayed or forfeited, and to whom they have on so many occasions intrusted the care of their dearest interests, which have never been abused; from you, who, holding the second situation under the Constitution of the United States, have lived in uninterrupted harmony with him who has held the first; from you we receive, with much satisfaction, the declaration which you are pleased to make of the opinion you entertain of the character of the present Senators, and of that of those citizens who have been heretofore Senators. This declaration, were other motives wanting, would afford them an incentive to a virtuous perseverance in the line of conduct which has been honored with your approbation. In your future course, we entertain no doubt that your official conduct will be measured by the constitution, and directed to the public good; you have, therefore, a right to entertain a confident reliance, that you will be supported, as well by the people at large as by their constituted authorities. We cordially reciprocate the wishes which you express for our honor, health, and happiness; we join with yours our fervent prayers for the continuation of the virtues and liberties of our fellow-citizens, for the public prosperity and peace; and for you we implore the best reward of virtuous deeds--the grateful approbation of your constituents, and the smiles of Heaven. WILLIAM BINGHAM, _President of the Senate pro tempore_. _Ordered_, That the committee who drafted the Address wait on the VICE PRESIDENT, with the Answer of the Senate. THURSDAY, February 23. Mr. SEDGWICK reported, from the committee, that, agreeably to order, they had waited on the VICE PRESIDENT OF THE UNITED STATES, with the answer to his Address, on retiring from the Senate--to which the VICE PRESIDENT was pleased to make the following Reply: An Address so respectful and affectionate as this, from gentlemen of such experience and established character in public affairs, high stations in the Government of their country, and great consideration, in their several States, as Senators of the United States, will do me great honor, and afford me a firm support, wherever it shall be known, both at home and abroad. Their generous approbation of my conduct, in general, and liberal testimony to the undeviating impartiality of it, in my peculiar relation to their body, a character which, in every scene and employment of life, I should wish above all others to cultivate and merit, has a tendency to soften asperities, and conciliate animosities, wherever such may unhappily exist; an effect at all times to be desired, and in the present situation of our country, ardently to be promoted by all good citizens. I pray the Senate to accept my sincere thanks. JOHN ADAMS. WEDNESDAY, March 1. _Executive Veto on the Army Bill._ The PRESIDENT OF THE UNITED STATES having stated his objections to the bill, entitled "An act to alter and amend an act, entitled 'an act to ascertain and fix the Military Establishment of the United States,'" the House of Representatives proceeded to consider the objections to the said bill, and have resolved that it do not pass. SPECIAL SESSION SATURDAY, March 4. _Installation of Thomas Jefferson as Vice President of the United States and President of the Senate, and inauguration of John Adams as President of the United States._ _To the Vice President and Senators of the United States respectively_: SIR: It appearing to be proper that the Senate of the United States should be convened on Saturday, the fourth of March instant, you are desired to attend in the Chamber of the Senate, on that day at ten o'clock in the forenoon, to receive any communications which the President of the United States may then lay before you touching their interests. G. WASHINGTON. March 1, 1797. In conformity with the summons from the PRESIDENT OF THE UNITED STATES, above recited, the Senate accordingly assembled in their Chamber. PRESENT: THOMAS JEFFERSON, Vice President of the United States and President of the Senate. JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire. THEODORE SEDGWICK and BENJAMIN GOODHUE, from Massachusetts. THEODORE FOSTER, from Rhode Island. JAMES HILLHOUSE and URIAH TRACY, from Connecticut. ELIJAH PAYNE and ISAAC TICHENOR, from Vermont. JOHN LAURANCE, from New York. RICHARD STOCKTON, from New Jersey. JAMES ROSS and WILLIAM BINGHAM, from Pennsylvania. JOHN VINING and HENRY LATIMER, from Delaware. JOHN HENRY and JOHN E. HOWARD, from Maryland. HENRY TAZEWELL and STEVENS T. MASON, from Virginia. JOHN BROWN and HUMPHREY MARSHALL, from Kentucky. ALEXANDER MARTIN and TIMOTHY BLOODWORTH, from North Carolina. WILLIAM BLOUNT, from Tennessee. JACOB READ, from South Carolina. JAMES GUNN and JOSIAH TATTNALL, from Georgia. Mr. BINGHAM administered the oath of office to the VICE PRESIDENT, who took the chair, and the credentials of the following members were read. Of Mr. FOSTER, Mr. GOODHUE, Mr. HILLHOUSE, Mr. HOWARD, Mr. LATIMER, Mr. MASON, Mr. ROSS, and Mr. TICHENOR. And the oath of office being severally administered to them by the VICE PRESIDENT, they took their seats in the Senate. The VICE PRESIDENT then addressed the Senate as follows: _Gentlemen of the Senate_: Entering on the duties of the office to which I am called, I feel it incumbent on me to apologize to this honorable House for the insufficient manner in which I fear they may be discharged. At an earlier period of my life, and through some considerable portion of it, I have been a member of Legislative bodies, and not altogether inattentive to the forms of their proceedings; but much time has elapsed since that; other duties have occupied my mind, and, in a great degree, it has lost its familiarity with this subject. I fear that the House will have but too frequent occasion to perceive the truth of this acknowledgment. If a diligent attention, however, will enable me to fulfil the functions now assigned me, I may promise that diligence and attention shall be sedulously employed. For one portion of my duty, I shall engage with more confidence, because it will depend on my will and not my capacity. The rules which are to govern the proceedings of this House, so far as they shall depend on me for their application, shall be applied with the most rigorous and inflexible impartiality, regarding neither persons, their views, nor principles, and seeing only the abstract proposition subject to my decision. If, in forming that decision, I concur with some and differ from others, as must of necessity happen, I shall rely on the liberality and candor of those from whom I differ, to believe, that I do it on pure motives. I might here proceed, and with the greatest truth, to declare my zealous attachment to the Constitution of the United States, that I consider the union of these States as the first of blessings and as the first of duties the preservation of that constitution which secures it; but I suppose these declarations not pertinent to the occasion of entering into an office whose primary business is merely to preside over the forms of this House, and no one more sincerely prays that no accident may call me to the higher and more important functions which the constitution eventually devolves on this office. These have been justly confided to the eminent character which has preceded me here, whose talents and integrity have been known and revered by me through a long course of years, have been the foundation of a cordial and uninterrupted friendship between us, and I devoutly pray he may be long preserved for the government, the happiness, and prosperity, of our common country.[1] On motion, it was agreed to repair to the Chamber of the House of Representatives to attend the administration of the oath of office to JOHN ADAMS, President of the United States; which the Senate accordingly did; and, being seated, the PRESIDENT OF THE UNITED STATES (attended by the Heads of Departments, the Marshal of the District and his officers) came into the Chamber of the House of Representatives and took his seat in the chair usually occupied by the SPEAKER. The VICE PRESIDENT and Secretary of the Senate were seated in advance, inclining to the right of the PRESIDENT, the late SPEAKER of the House of Representatives and Clerk on the left, and the Justices of the Supreme Court were seated round a table in front of the PRESIDENT OF THE UNITED STATES. The late PRESIDENT OF THE UNITED STATES, the great and good WASHINGTON,[2] took a seat, as a private citizen, a little in front of the seats assigned for the Senate, which were on the south side of the House, the foreign Ministers and members of the House of Representatives took their usual seats--a great concourse of both sexes being present. After a short pause, the PRESIDENT OF THE UNITED STATES arose, and communicated the following Address: "When it was first perceived, in early times, that no middle course for America remained, between unlimited submission to a foreign Legislature, and a total independence of its claims, men of reflection were less apprehensive of danger, from the formidable power of fleets and armies they must determine to resist, than from those contests and dissensions, which would certainly arise concerning the forms of government to be instituted over the whole and over the parts of this extensive country. Relying, however, on the purity of their intentions, the justice of their cause, and the integrity and intelligence of the people, under an overruling Providence, which had so signally protected this country from the first, the Representatives of this nation, then consisting of little more than half its present number, not only broke to pieces the chains which were forging, and the rod of iron that was lifted up, but frankly cut asunder the ties which had bound them, and launched into an ocean of uncertainty. "The zeal and ardor of the people, during the Revolutionary war, supplying the place of government, commanded a degree of order, sufficient at least for the preservation of society. The Confederation, which was early felt to be necessary, was prepared from the models of the Batavian and Helvetic Confederacies, the only examples which remain, with any detail and precision, in history, and certainly the only ones which the people at large had ever considered. But, reflecting on the striking difference, in many particulars, between this country and those where a courier may go from the seat of Government to the frontier in a single day, it was then certainly foreseen by some who assisted in Congress at the formation of it, that it could not be durable. "Negligence of its regulations, inattention to its recommendations, if not disobedience to its authority, not only in individuals but in States, soon appeared, with their melancholy consequences: universal languor; jealousies and rivalries of States; decline of navigation and commerce; discouragement of necessary manufactures; universal fall in the value of lands and their produce; contempt of public and private faith; loss of consideration and credit with foreign nations; and, at length, in discontents, animosities, combinations, partial conventions, and insurrection, threatening some great national calamity. "In this dangerous crisis, the people of America were not abandoned by their usual good sense, presence of mind, resolution, or integrity. Measures were pursued to concert a plan, to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty. The public disquisitions, discussions, and deliberations, issued in the present happy constitution of Government. "Employed in the service of my country abroad, during the whole course of these transactions, I first saw the Constitution of the United States in a foreign country. Irritated by no literary altercation, animated by no public debate, heated by no party animosity, I read it with great satisfaction, as a result of good heads, prompted by good hearts; as an experiment, better adapted to the genius, character, situation, and relations, of this nation and country, than any which had ever been proposed or suggested. In its general principles and great outlines, it was conformable to such a system of government as I had ever most esteemed, and in some States, my own native State in particular, had contributed to establish. Claiming a right of suffrage, in common with my fellow-citizens, in the adoption or rejection of a constitution which was to rule me and my posterity, as well as them and theirs, I did not hesitate to express my approbation of it, on all occasions, in public and in private. It was not then, nor has been since, any objection to it, in my mind, that the Executive and Senate were not more permanent. Nor have I ever entertained a thought of promoting any alteration in it, but such as the people themselves, in the course of their experience, should see and feel to be necessary or expedient, and by their Representatives in Congress and the State Legislatures, according to the constitution itself, adopt and ordain. "Returning to the bosom of my country, after a painful separation from it, for ten years, I had the honor to be elected to a station under the new order of things, and I have repeatedly laid myself under the most serious obligations to support the constitution. The operation of it has equalled the most sanguine expectations of its friends, and from an habitual attention to it, satisfaction in its administration and delight in its effects upon the peace, order, prosperity, and happiness of the nation, I have acquired an habitual attachment to it, and veneration for it. "What other form of government, indeed, can so well deserve our esteem and love? "There may be little solidity in an ancient idea that congregations of men into cities and nations are the most pleasing objects in the sight of superior intelligences: but this is very certain, that, to a benevolent human mind, there can be no spectacle presented by any nation more pleasing, more noble, majestic, or august, than an assembly like that which has so often been seen in this and the other chamber of Congress, of a Government, in which the Executive authority, as well as that of all the branches of the Legislature, are exercised by citizens selected, at regular periods, by their neighbors, to make and execute laws for the general good. Can any thing essential, any thing more than mere ornament and decoration, be added to this by robes and diamonds? Can authority be more amiable and respectable, when it descends from accidents, or institutions established in remote antiquity, than when it springs fresh from the hearts and judgments of an honest and enlightened people? For, it is the people only that are represented: it is their power and majesty that are reflected, and only for their good, in every legitimate Government, under whatever form it may appear. The existence of such a Government as ours, for any length of time, is a full proof of a general dissemination of knowledge and virtue throughout the whole body of the people. And what object or consideration more pleasing than this can be presented to the human mind? If national pride is ever justifiable or excusable, it is when it springs, not from power or riches, grandeur or glory, but from conviction of national innocence, information, and benevolence. "In the midst of these pleasing ideas, we should be unfaithful to ourselves, if we should ever lose sight of the danger to our liberties, if any thing partial or extraneous should infect the purity of our free, fair, virtuous, and independent elections. If an election is to be determined by a majority of a single vote, and that can be procured by a party, through artifice or corruption, the Government may be the choice of a party, for its own ends, not of the nation for the national good. If that solitary suffrage can be obtained by foreign nations, by flattery or menaces, by fraud or violence by terror, intrigue, or venality, the Government may not be the choice of the American people, but of foreign nations. It may be foreign nations who govern us, and not we the people who govern ourselves. And candid men will acknowledge, that, in such cases, choice would have little advantage to boast of, over lot or chance. "Such is the amiable and interesting system of Government (and such are some of the abuses to which it may be exposed) which the people of America have exhibited to the admiration and anxiety of the wise and virtuous of all nations, for eight years, under the administration of a citizen, who, by a long course of great actions, regulated by prudence, justice, temperance, and fortitude, conducting a people, inspired with the same virtues, and animated with the same ardent patriotism and love of liberty, to independence and peace, to increasing wealth and unexampled prosperity, has merited the gratitude of his fellow-citizens, commanded the highest praises of foreign nations, and secured immortal glory with posterity. "In that retirement which is his voluntary choice, may he long live to enjoy the delicious recollection of his services, the gratitude of mankind, the happy fruits of them to himself and the world, which are daily increasing, and that splendid prospect of the future fortunes of this country, which is opening from year to year. His name may be still a rampart, and the knowledge that he still lives a bulwark, against all open or secret enemies of his country's peace. His example has been recommended to the imitation of his successors, by both Houses of Congress, and by the voice of the Legislatures and the people throughout the nation. "On this subject it might become me better to be silent, or to speak with diffidence; but as something may be expected, the occasion, I hope, will be admitted as an apology, if I venture to say, that if a preference upon principle, of a free Republican Government, formed upon long and serious reflection, after a diligent and impartial inquiry after truth; if an attachment to the Constitution of the United States, and a conscientious determination to support it, until it shall be altered by the judgments and wishes of the people, expressed in the mode prescribed in it; if a respectful attention to the constitutions of the individual States, and a constant caution and delicacy towards the State Government; if an equal and impartial regard to the rights, interest, honor, and happiness, of all the States in the Union, without preference or regard to a Northern or Southern, an Eastern or Western position, their various political opinions on unessential points, or their personal attachments; if a love of virtuous men of all parties and denominations; if a love of science and letters, and a wish to patronize every rational effort to encourage schools, colleges, universities, academies, and every institution for propagating knowledge, virtue, and religion, among all classes of the people, not only for their benign influence on the happiness of life in all its stages and classes, and of society in all its forms, but as the only means of preserving our constitution from its natural enemies, the spirit of sophistry, the spirit of party, the spirit of intrigue, the profligacy of corruption, and the pestilence of foreign influence, which is the angel of destruction to elective governments; if a love of equal laws, of justice, and humanity, in the interior administration; if an inclination to improve agriculture, commerce, and manufactures, for necessity, convenience, and defence; if a spirit of equity and humanity towards the aboriginal nations of America, and a disposition to meliorate their condition, by inclining them to be more friendly to us, and our citizens to be more friendly to them; if an inflexible determination to maintain peace and inviolable faith with all nations, and that system of neutrality and impartiality among the belligerent powers of Europe, which has been adopted by this Government, and so solemnly sanctioned by both Houses of Congress, and applauded by the Legislatures of the States and the public opinion, until it shall be otherwise ordained by Congress; if a personal esteem for the French nation, formed in a residence of seven years, chiefly among them, and a sincere desire to preserve the friendship which has been so much for the honor and interest of both nations; if, while the conscious honor and integrity of the people of America, and the internal sentiment of their own power and energies must be preserved, an earnest endeavor to investigate every just cause, and remove every colorable pretence of complaint; if an intention to pursue, by amicable negotiation, a reparation for the injuries that have been committed on the commerce of our fellow-citizens by whatever nation, and, if success cannot be obtained, to lay the facts before the Legislature, that they may consider what further measures the honor and interest of the Government and its constituents demand; if a resolution to do justice, as far as may depend upon me, at all times and to all nations, and maintain peace, friendship, and benevolence, with all the world; if an unshaken confidence in the honor, spirit, and resources of the American people, on which I have so often hazarded my all, and never been deceived; if elevated ideas of the high destinies of this country, and of my own duties towards it, founded on a knowledge of the moral principles and intellectual improvements of the people, deeply engraven on my mind in early life, and not obscured, but exalted by experience and age; and with humble reverence, I feel it to be my duty to add, if a veneration for the religion of a people who profess and call themselves Christians, and a fixed resolution to consider a decent respect for Christianity among the best recommendations for the public service, can enable me, in any degree, to comply with your wishes, it shall be my strenuous endeavor, that this sagacious injunction of the two Houses shall not be without effect. "With this great example before me, with the sense and spirit, the faith and honor, the duty and interest, of the same American people, pledged to support the Constitution of the United States, I entertain no doubt of its continuance in all its energy, and my mind is prepared, without hesitation, to lay myself under the most solemn obligations to support it to the utmost of my power. "And may that Being who is supreme over all, the Patron of Order, the Fountain of Justice, and the Protector, in all ages of the world, of virtuous liberty, continue his blessing upon this nation and its Government, and give it all possible success and duration, consistent with the ends of His Providence." The oath of office was then administered to him by the Chief Justice of the Supreme Court of the United States, the Associate Justices attending. After which, the PRESIDENT OF THE UNITED STATES retired, and the Senate repaired to their own Chamber. On motion, _Ordered_, That Messrs. LANGDON and SEDGWICK be a committee to wait on the PRESIDENT OF THE UNITED STATES, and notify him that the Senate is assembled, and ready to adjourn unless he may have any communications to make to them. Mr. LANGDON reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, who replied, that he had no communication to make to the Senate, except his good wishes for their health and prosperity, and a happy meeting with their families and friends. The Senate then adjourned without day. FOURTH CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, December 5, 1796. This being the day appointed by the constitution for the annual meeting of Congress, in the House of Representatives, the following named members appeared and took their seats, viz: _From New Hampshire._--ABIEL FOSTER, NICHOLAS GILMAN, JOHN S. SHERBURNE, and JEREMIAH SMITH. _From Massachusetts._--FISHER AMES, THEOPHILUS BRADBURY, HENRY DEARBORN, DWIGHT FOSTER, NATHANIEL FREEMAN, Jr., SAMUEL LYMAN, WILLIAM LYMAN, JOHN READ, GEORGE THATCHER, JOSEPH B. VARNUM, and PELEG WADSWORTH. _From Rhode Island._--FRANCIS MALBONE. _From Connecticut._--JOSHUA COIT, CHAUNCEY GOODRICH, ROGER GRISWOLD, NATHANIEL SMITH, and ZEPHANIAH SWIFT. _From New York._--THEODORUS BAILEY, WILLIAM COOPER, EZEKIEL GILBERT, HENRY GLENN, JONATHAN N. HAVENS, JOHN E. VAN ALLEN, PHILIP VAN CORTLANDT, and JOHN WILLIAMS. _From New Jersey._--JONATHAN DAYTON, AARON KITCHELL, and ISAAC SMITH. _From Pennsylvania._--ALBERT GALLATIN, SAMUEL MACLAY, FREDERICK AUGUSTUS MUHLENBERG, JOHN RICHARDS, SAMUEL SITGREAVES, and JOHN SWANWICK. _From Delaware._--JOHN PATTON. _From Maryland._--GEORGE DENT, WILLIAM HINDMAN, and RICHARD SPRIGG, Jr. _From Virginia._--JOHN CLOPTON, ISAAC COLES, GEORGE JACKSON, JAMES MADISON, ANTHONY NEW, and ROBERT RUTHERFORD. _From Kentucky._--CHRISTOPHER GREENUP. _From North Carolina._--THOMAS BLOUNT and MATTHEW LOCKE. _From South Carolina._--WILLIAM SMITH. _From Georgia._--ABRAHAM BALDWIN. The following new members appeared, produced their credentials, were qualified, and took their seats, viz: _From Tennessee._--ANDREW JACKSON. _From Maryland._--WILLIAM CRAIK, in place of JEREMIAH CRABB, resigned. _From Connecticut._--JAMES DAVENPORT, in place of JAMES HILLHOUSE, appointed a Senator of the United States. The SPEAKER laid before the House a letter from the Governor of Pennsylvania, with the return of the election of GEORGE EGE, to serve as a member of the House in place of DANIEL HEISTER, resigned. A quorum, consisting of a majority of the whole number, being present, it was ordered that the Clerk wait on the Senate, to inform them that this House was ready to proceed to business; but it appeared that the Senate had not been able to form a quorum by one member, and had adjourned. Mr. WILLIAM SMITH presented a petition from Thomas Lloyd, proposing to take, in short-hand, and publish the Debates of Congress at $1,000 per session salary. The expense of printing, &c. he estimated at $540, for which he would furnish the House with five hundred copies of that work; engaging to use every possible precaution, and pay prompt attention. Mr. S. referred to the unfavorable reception of a proposal of this nature at the last session, and supposed this would not be more successful; however, he moved that it be referred to a committee. The motion was agreed to, and Mr. W. SMITH, Mr. GALLATIN, and Mr. SWIFT, were appointed to examine the petition, and report thereon to the House. TUESDAY, December 6. Several other members, to wit: from Vermont, ISRAEL SMITH; from New Jersey, MARK THOMPSON; from Pennsylvania, RICHARD THOMAS; from Virginia, CARTER B. HARRISON, JOHN HEATH, and ABRAHAM VENABLE; and from North Carolina, JESSE FRANKLIN, WILLIAM BARRY GROVE, JAMES HOLLAND, and NATHANIEL MACON, appeared, and took their seats in the House. The SPEAKER observed, that, as there were several returns of new elections of members to serve in this session, it was proper that, pursuant to a rule of the House, a Committee of Elections be appointed. A committee was accordingly appointed, of Mr. VENABLE, Mr. SWIFT, Mr. DENT, Mr. DEARBORN, Mr. BLOUNT, Mr. MUHLENBERG, and Mr. A. FOSTER. Mr. MACON moved that a Committee of Revisal and Unfinished Business of last session be appointed, pursuant to the Standing Rules and Orders of the House, observing that, as the session would be but short, it would be necessary to be early in the appointment of committees. Whereon Mr. GILMAN, Mr. R. SPRIGG, Jr., and Mr. MACON were appointed. Notice was received that a quorum of the Senate was formed. On motion, it was, therefore, resolved, that a committee of three members be appointed to wait on the PRESIDENT OF THE UNITED STATES, in conjunction with a committee from the Senate, to inform him that a quorum of both Houses was assembled, and ready to receive any communications that he may please to make. Mr. AMES, Mr. MADISON, and Mr. SITGREAVES, were accordingly appointed. A message was received from the Senate informing the House that they had formed a quorum: whereupon the Clerk went to the Senate with the resolution of this House. The Secretary soon after returned, informing the House that the Senate had concurred in the resolution, and formed a committee for that purpose. Mr. AMES, from the committee appointed for that purpose, reported that the committee had waited on the PRESIDENT, who was pleased to signify to them that he would make a communication to both Houses of Congress to-morrow, at 12 o'clock, in the Representatives' Chamber. WEDNESDAY, December 7. Another member, to wit, SAMUEL SEWALL, from Massachusetts, in place of BENJAMIN GOODHUE, appointed a Senator of the United States, appeared, produced his credentials, was qualified, and took his seat. A message was sent to the Senate, informing them that this House was ready, agreeably to appointment, to receive communications from the PRESIDENT; whereon the Senate attended, and took their seats. At 12 o'clock the PRESIDENT attended, and, after taking his seat, rose and delivered the following Address: _Gentlemen of the Senate, and of the House of Representatives_: In recurring to the internal situation of our country, since I had last the pleasure to address you, I find ample reason for a renewed expression of that gratitude to the Ruler of the Universe, which a continued series of prosperity, has so often and so justly called forth. To an active external commerce, the protection of a Naval force is indispensable: this is manifest with regard to wars in which a State is itself a party. But besides this, it is in our own experience, that the most sincere neutrality is not a sufficient guard against the depredations of nations at war. To secure respect to a neutral flag, requires a Naval force, organized and ready to vindicate it from insult or aggression. This may even prevent the necessity of going to war, by discouraging belligerent powers from committing such violations of the rights of the neutral party as may, first or last, leave no other option. From the best information I have been able to obtain, it would seem as if our trade to the Mediterranean, without a protecting force, will always be insecure, and our citizens exposed to the calamities from which numbers of them have but just been relieved. These considerations invite the United States to look to the means, and to set about the gradual creation of a Navy. The increasing progress of their navigation promises them, at no distant period, the requisite supply of seamen; and their means in other respects favor the undertaking. It is an encouragement likewise that their particular situation will give weight and influence to a moderate Naval force in their hands. Will it not, then, be advisable to begin, without delay, to provide and lay up the materials for the building and equipping of ships of war, and to proceed in the work by degrees, in proportion as our resources shall render it practicable without inconvenience; so that a future war of Europe may not find our commerce in the same unprotected state in which it was found by the present? Congress have repeatedly, and not without success, directed their attention to the encouragement of manufactures. The object is of too much consequence not to ensure a continuance of their efforts in every way which shall appear eligible. As a general rule, manufactures on public account are inexpedient. But where the state of things in a country leaves but little hope that certain branches of manufacture will for a great length of time obtain, when these are of a nature essential to the furnishing and equipping of the public force in time of war; are not establishments for procuring them on public account, _to the extent of the ordinary demand for the public service_, recommended by strong considerations of national policy, as an exception to the general rule? Ought our country to remain in such cases dependent on foreign supply, precarious, because liable to be interrupted? If the necessary articles should in this mode cost more in time of peace, will not the security and independence thence arising form an ample compensation? Establishments of this sort, commensurate only with the calls of the public service in time of peace, will, in time of war, easily be extended in proportion to the exigencies of the Government, and may even, perhaps, be made to yield a surplus for the supply of our citizens at large, so as to mitigate the privations from the interruption of their trade. If adopted, the plan ought to exclude all those branches which are already, or likely soon to be established in the country, in order that there may be no danger of interference with pursuits of individual industry. It will not be doubted that with reference either to individual or national welfare, agriculture is of primary importance. In proportion as nations advance in population, and other circumstances of maturity, this truth becomes more apparent, and renders the cultivation of the soil more and more an object of public patronage. Institutions for promoting it grow up, supported by the public purse; and to what object can it be dedicated with greater propriety? Among the means which have been employed to this end, none have been attended with greater success than the establishment of Boards, composed of proper characters, charged with collecting and diffusing information, and enabled by premiums, and small pecuniary aids, to encourage and assist a spirit of discovery and improvement. This species of establishment contributes doubly to the increase of improvement, by stimulating to enterprise and experiment, and by drawing to a common centre the results every where of individual skill and observation, and spreading them thence over the whole nation. Experience accordingly has shown that they are very cheap instruments of immense national benefits. I have heretofore proposed to the consideration of Congress the expediency of establishing a National University, and also a Military Academy. The desirableness of both these institutions has so constantly increased with every new view I have taken of the subject, that I cannot omit the opportunity of once for all recalling your attention to them. The Assembly to which I address myself is too enlightened not to be fully sensible how much a flourishing state of the arts and sciences contributes to national prosperity and reputation. True it is that our country, much to its honor, contains many seminaries of learning highly respectable and useful; but the funds upon which they rest are too narrow to command the ablest professors in the different departments of liberal knowledge for the institution contemplated, though they would be excellent auxiliaries. Amongst the motives to such an institution the assimilation of the principles, opinions, and manners of our countrymen, by the common education of a portion of our youth from every quarter, well deserves attention. The more homogeneous our citizens can be made in these particulars, the greater will be our prospect of permanent union; and a primary object of such a national institution should be the education of our youth in the science of Government. In a Republic, what species of knowledge can be equally important? and what duty more pressing on its Legislature, than to patronize a plan for communicating it to those who are to be the future guardians of the liberties of the country? The institution of a Military Academy is also recommended by cogent reasons. However pacific the general policy of a nation may be, it ought never to be without an adequate stock of military knowledge for emergencies. The first would impair the energy of its character, and both would hazard its safety, or expose it to greater evils when war could not be avoided: besides, that war might often not depend upon its own choice. In proportion as the observance of pacific maxims might exempt a nation from the necessity of practising the rules of the military art, ought to be its care in preserving and transmitting by proper establishments the knowledge of that art. Whatever argument may be drawn from particular examples, superficially viewed, a thorough examination of the subject will evince that the art of war is at once comprehensive and complicated; that it demands much previous study; and that the possession of it, in its most improved and perfect state, is always of great moment to the security of a nation. This, therefore, ought to be a serious care of every Government; and for this purpose an Academy, where a regular course of instruction is given, is an obvious expedient, which different nations have successfully employed. The compensations to the officers of the United States in various instances, and in none more than in respect to the most important stations, appear to call for Legislative revision. The consequences of a defective provision are of serious import to the Government. If private wealth is to supply the defect of public retribution, it will greatly contract the sphere within which the selection of character for office is to be made, and will proportionally diminish the probability of a choice of men, able, as well as upright. Besides, that it would be repugnant to the vital principles of our Government virtually to exclude from public trusts, talents, and virtue, unless accompanied by wealth. While in our external relations some serious inconveniences and embarrassments have been overcome, and others lessened, it is with much pain and deep regret I mention that circumstances of a very unwelcome nature have lately occurred. Our trade has suffered, and is suffering, extensive injuries in the West Indies, from the cruisers and agents of the French Republic; and communications have been received from its Minister here which indicate the danger of a further disturbance of our commerce, by its authority, and which are, in other respects, far from agreeable. It has been my constant, sincere, and ardent wish, in conformity with that of our nation, to maintain cordial harmony and a perfectly friendly understanding with that Republic. This wish remains unabated; and I shall persevere in the endeavor to fulfil it to the utmost extent of what shall be consistent with a just and indispensable regard to the rights and honor of our country; nor will I easily cease to cherish the expectation that a spirit of justice, candor, and friendship on the part of the Republic will eventually ensure success. My solicitude to see the Militia of the United States placed on an efficient establishment has been so often and so ardently expressed that I shall but barely recall the subject to your view on the present occasion; at the same time that I shall submit to your inquiry, whether our harbors are yet sufficiently secured. The situation in which I now stand, for the last time, in the midst of the Representatives of the people of the United States, naturally recalls the period when the administration of the present form of government commenced; and I cannot omit the occasion to congratulate you and my country on the success of the experiment; nor to repeat my fervent supplications to the Supreme Ruler of the Universe and Sovereign Arbiter of Nations, that His providential care may still be extended to the United States; that the virtue and happiness of the people may be preserved; and that the Government which they have instituted for the protection of their liberties may be perpetual. G. WASHINGTON. UNITED STATES, _December 7, 1796_. When the PRESIDENT had concluded his Address, he presented copies of it to the PRESIDENT of the Senate and the SPEAKER of the House of Representatives. The PRESIDENT and the Senate then withdrew, and the SPEAKER took the Chair. The Address was again read by the Clerk, and on motion, committed to a Committee of the whole House to-morrow. THURSDAY, December 8. JAMES GILLESPIE, from North Carolina, appeared, and took his seat in the House. A new member, to wit, GEORGE EGE, from Pennsylvania, in place of DANIEL HEISTER, resigned, appeared, produced his credentials, was qualified, and took his seat. _Address to the President._ On the motion of Mr. W. SMITH, the House went into a Committee of the Whole on the PRESIDENT's Address, according to the order of the day. The Speech was read by the Clerk. Mr. D. FOSTER moved the following resolution: | "_Resolved_, That it is the opinion of this committee, that a respectful Address ought to be presented from the House of Representatives, to the President of the United States, in answer to his Speech to both Houses of Congress, at the commencement of the session, containing assurances that this House will take into consideration the many important matters recommended to their attention." Which was unanimously agreed to, and Mr. AMES, Mr. BALDWIN, Mr. MADISON, Mr. SITGREAVES, and Mr. W. SMITH were appointed a committee to draw up the Address. The committee rose, and the resolution was adopted by the House. FRIDAY, December 9. DAVID BARD, from Pennsylvania, JOSIAH PARKER, from Virginia, and NATHAN BRYAN, from North Carolina, appeared and took their seats in the House. _Address to the President._ The SPEAKER said, that it had been usual for the House to come to some order on the PRESIDENT's Address, which was to refer it to a Committee of the Whole on the state of the Union. On which Mr. WILLIAMS moved, that it be committed to a Committee of the Whole on the state of the Union, which was done accordingly. Mr. BAYLEY moved, that a Committee of Commerce and Manufactures be appointed, when Mr. WILLIAM SMITH, Mr. SEWALL, Mr. COIT, Mr. PARKER, Mr. BLOUNT, and Mr. DENT, were named for that committee. Mr. BAYLEY then moved, that when this House adjourn, it adjourn till Monday at eleven o'clock. [The reason stated during the last session for the House not meeting to do business on Saturdays was, that the standing committees were numerous, besides many special committees for different purposes, whose business was frequently very important and troublesome, it was therefore necessary that Saturday be allowed for the committees to sit, else business would be much protracted, and become too burdensome on gentlemen in committees.] MONDAY, December 12. Several other members, to wit: from New York, EDWARD LIVINGSTON; from Pennsylvania, ANDREW GREGG; from Maryland, GABRIEL CHRISTIE; from Virginia, WILLIAM B. GILES, ANDREW MOORE, and JOHN NICHOLAS; and from South Carolina, ROBERT GOODLOE HARPER, appeared, and took their seats in the House. TUESDAY, December 13. Two other members, to wit, THOMAS CLAIBORNE and JOHN PAGE, from Virginia, appeared and took their seats in the House. A new member, viz: WILLIAM STRUDWICK, from North Carolina, in place of ABSALOM TATOM resigned, appeared, produced his credentials, was qualified, and took his seat. _Address to the President._ Mr. W. SMITH then moved for the order of the day on the report of the committee in answer to the PRESIDENT's Address. Mr. GILES said, that as the printed copy of the answer was but just laid before the House, he hoped the gentleman would not insist on his motion, as he declared he had not had time to read it; he would therefore move that it be deferred till to-morrow. Mr. PARKER seconded the motion. He said he was not able to judge whether the answer would meet his approbation or not; he wished time to be given for the consideration of it. Mr. W. SMITH said he knew no instance in which the answer to the PRESIDENT's Address had been laid over, and he thought it ought to be despatched with all possible speed. Mr. HEATH said, he hoped his colleague would not insist on his motion for letting it lie over till to-morrow; he thought it could as well be acted on to-day. Mr. AMES observed, that it would look very awkward to let it lie over till to-morrow, as it was very unusual, if not unprecedented, so to do; he thought gentlemen might make up their minds about it if laid on the table about an hour; they could, in the mean time, despatch other business, which would come before them. Mr. GILES said, he had experienced extreme inconvenience from gentlemen pressing for a subject before it had been matured in the minds of members; he thought it would be extremely improper and unusual, and in its consequences disagreeable, to go into the subject before gentlemen had time to reflect on it. Mr. SITGREAVES said, that the more expeditious the House were on the answer to the PRESIDENT's Address the greater the effect of it would be. He hoped, therefore, that there would be no delay. He had in recollection a Message which was received from the PRESIDENT respecting the Colors of the French Republic, at the last session. Those very gentlemen who now wished a delay, then thought that, to let the subject lie over, would lose its principal effect, although several of the members wished it to lie over, and but for one day. Surely we have as much respect for the PRESIDENT as we have for the French Republic. He really hoped the business would not lie over. Mr. W. LYMAN hoped gentlemen did not look upon this answer to the PRESIDENT's Address as merely complimentary. He declared he took it up in a very different light; he viewed it as of the most extensive consequence; it related to the subjects recommended to the notice of the House by the PRESIDENT, which might relate to the alteration of the laws, and, perhaps, to the forming new laws; and could gentlemen have time to form their minds on such an important part of their business? He had only seen the report this morning, and hoped he should have time to consider it before it passed through the House. The SPEAKER said, that the subject before the House now was, whether the unfinished business should be postponed in order to make room for a Committee of the Whole to sit on the report of the committee on the answer? Mr. PARKER observed, that he could not say whether he approved or disapproved of the answer before the House. He had not read the report; he therefore hoped that the unfinished business would be taken up and this postponed: he thought it was too important to be hastened. He wished gentlemen to be very careful how they committed themselves at a juncture so critical, and on business so momentous. We had just been told by the PRESIDENT that we did not stand well with the French nation; and the Senate, in their answer, had accorded with his observations on that subject. [Mr. P. was here informed that the business of the Senate ought not to be introduced here.[3]] He therefore hoped a day might be allowed to take the subject into consideration. Mr. WILLIAMS said, he had searched and could find no precedent in the journal to encourage a delay of this business. He found that when a report was made by the committee on such an occasion, it was usual to be taken up by a Committee of the whole House; and if gentlemen disagreed on the subject, it should be recommitted to the same committee who formed it, to make such alterations whereby it may meet more general approbation, or be amended by the House and passed. He hoped no new precedent would be made. The SPEAKER again observed, that the question was on postponing the unfinished business to take up this report. Mr. W. SMITH said, that if this business was delayed, it ought to be for substantial reasons. The principal reason gentlemen had urged was, that they had not had time to acquaint themselves with the answer. How, then, he asked, could they make their observations on it as they had done? The committee had, he thought, drafted it in such general terms that it could not be generally disapproved. There are but two parts in which he thought there would be differences of opinion, viz: that which related to the French Republic, and that which complimented the PRESIDENT for his services. As to the first, he thought it so expressed as to need no delay in the answer. With respect to the latter, he hoped no gentleman would refuse to pay a due regard to the PRESIDENT's services. The SPEAKER again informed the House what was the question. Mr. W. SMITH said, we ought not now to reflect on any thing we may judge has not been done as we could wish. Could we refuse a tribute of respect to a man who had served his country so much? He thought a delay at present would have a very unpleasant appearance. He hoped we should go into this business immediately, agreeably to the former practice of the House on similar occasions. The unfinished business was yesterday postponed for want of proper information, and he thought the same reason was yet in force with respect to it. He hoped nothing would impede this business, lest it should appear like a want of respect in us. He hoped to see a unanimous vote in favor of a respectful answer to the Chief Magistrate, whose services we ought zealously to acknowledge. Mr. GILBERT saw no reason to depart from a practice which had been usual; he therefore hoped the report might come under consideration to-day. He thought if it laid on the table an hour or an hour and a half, gentlemen could then be prepared to consider it. The SPEAKER again put the House in mind of the question. Mr. NICHOLAS said, if the business was pressed too precipitately, gentlemen may be sensible of their error when it was too late. Many bad consequences might attend hastening the subject before it was well matured. He could see no reason why the business should be precipitated upon the House--a proper delay would not show any want of respect to the PRESIDENT, as some gentlemen think. Would it be more respectful that an answer should be sent by this House, which, for want of time, had not been sufficiently considered? Certainly not. Far more so will it appear that after mature deliberation the members are unanimous in their answer. I therefore think the object of respect which the gentleman from North Carolina has in view will be completely answered by the delay. Gentlemen talk about precedent. I am ashamed to hear them. There may be no precedent on the subject. But are we always to act by precedent? There is scarcely a circumstance occurs in this House but what is different from any that was before it. The PRESIDENT's Addresses to this House are always different. They relate to the circumstances of things that are, have been, and may be. Then, to talk of precedents where things cannot be alike, is to trammel men down by rules which would be injurious in the issue. The Message of the PRESIDENT respecting the French Colors had been referred to. If gentlemen were then wrong, is that a reason why they should continue to act wrong? But this circumstance materially differs from that. That was merely an expression of sentiment, which could at once be determined, but this of sentiment, accompanied with deep and solemn reflection--it is so interwoven with the politics of the country as to require great circumspection. I hope gentlemen will not go into it until they are properly prepared. I wish to pay all possible respect to the Chief Magistrate, and cannot prove it better than by a sincere desire for an unanimous vote to the answer, which is only to be obtained by proper deliberation; and thus let him depart from his office with credit, and the enjoyment of our best wishes in his retirement. The question for postponing the unfinished business to take up this report was then put and negatived--43 to 31. WEDNESDAY, December 14. THOMAS HENDERSON, from New Jersey, and THOMAS HARTLEY, from Pennsylvania, appeared and took their seats in the House. _Reporting of the Debates._ Mr. W. SMITH moved for the order of the day on the petitions of Thomas Lloyd and Thomas Carpenter, whereupon the House resolved itself into a Committee of the Whole, when, having read the report of the committee to whom it was referred, Mr. MACON wished some gentleman who was in that committee, would be so good as to inform the House what would be the probable expense, and for what reason the House should go into the business. He thought the expense altogether unnecessary, whatever it may be. If the debates of this House were to be printed, and four or five copies given to each member, they would employ all the mails of the United States. He also adverted to the attempt at the last session to introduce a stenographer into the House, which failed. Mr. SMITH informed the gentleman that Mr. Lloyd's estimate of the expenses is, that he will supply the House with his reports at the rate of three cents per half sheet. His calculation is that he can supply the members at the expense of about $1,600 for the session. With respect to the gentleman's reference to last session, this was materially different from that: that motion was to make the person an officer of this House, and at an expense much greater. He thought this attempt would be of great use to the House. Regular and accurate information of the debates in the House would be a very desirable thing; he therefore hoped the resolution would prove agreeable to the House. Mr. WILLIAMS said, that the House need not go into unnecessary expense: the members were now furnished, morning and evening, with newspapers, which contained the debates; then why should the House wish for more? If one person in particular has the sale of his debates to this House, will it not destroy the advantages any other can derive from it? We ought not to encourage an undertaking of this kind, but let us encourage any gentleman to come here and take down the debates. Last year they were taken down very accurately and dispersed throughout the Union. By passing this resolution you will destroy the use of the privilege to any other than the person favored by this House. Why give one a privilege more than another? He observed, it had been common to give gentlemen the privilege to come into the House and take down the debates, which had been, last year, delivered time enough to give satisfaction to the members. Mr. THATCHER said, he should wish for information from the committee how many persons there were to publish debates, as he understood there were several, and the members were to supply themselves from whom they pleased. He should likewise wish for information, how many each member was to have to amount to the value of $1,600. Mr. W. SMITH said, there had been petitions received from only two persons--Thomas Lloyd and Thomas Carpenter. They intended, each of them, to publish the debates. There might be others; he knew not. There was no intention of giving any one a preference--gentlemen could subscribe for that they approved of most. At the calculation of Mr. Lloyd the members would have five copies each for the $1,600. Mr. W. LYMAN said, the question was, whether the House would incur the expense of $1,600 to supply the members with copies or not? He thought there was no need of the expense. If the House do not think proper to furnish the members, they can supply themselves. A publication of them is going on at present, and many gentlemen had subscribed to it already. Mr. DEARBORN did not think that $1,600 thus laid out would be expended to the best possible advantage. From the number of persons which we see here daily taking down debates, he thought we might expect to see a good report of the occurrences in the House. There was a book going about for subscriptions, which appeared to be well encouraged; he saw many of the members' names in it. He thought that, by a plan like that, the reports may be as accurately taken as we may have any reason to expect if the House incurs this expense. Mr. NICHOLAS observed, that members were now served with three newspapers. He thought to vote for this resolution on account of obtaining a more full and complete report than was to be had in the newspapers; thus it would supersede the necessity of taking so many papers. He thought this plan more useful to the members, and generally of more advantage to their constituents, as they could disperse those debates where otherwise they would not be seen. Mr. THATCHER said, if the object of the motion was to supersede the receiving of newspapers, he certainly should vote against it. He did not consider the main reason why members were served with the newspapers was, that they may obtain the debates. No. He thought it more important, in their stations, that they should know the occurrences of the day from the various parts of the United States as well as from foreign nations. Though he might favor an undertaking of this kind, yet he would give preference to a newspaper, if they were to have the one without the other. Mr. HEATH did not wish that the members, being furnished with debates agreeably to the motion, should supersede the receiving of newspapers, yet he should vote for it. Gentlemen had said the debates were taken more correctly last session than before, yet he had heard a whisper which was going from North to South, that our debates are not represented impartially. He wished the House and the people to be furnished with a true report; such a thing would be very useful: however, he did not wish to encourage a monopoly to those two persons. No. He would wish to give an equal chance to all who choose to come and take them. Shall we repress truth? I hope not; but disseminate it as much as possible. Last session, when I was, under the act of God's providence, prevented from attending the House, a member sent for a gentleman from Virginia, who was to act as stenographer, with whom the House and a printer in this city were to combine. Warm debates ensued on the propriety of the measure, and the gentleman returned home after the motion was negatived. I hope gentlemen will not grudge 1,600 dollars towards the support of truth. What we see now in the newspapers is taken from the memory, and not by a stenographer. The people will thank you that you have taken means to investigate truth. If any gentleman can point out a better mode to obtain this object, I hope he will do it that it may be adopted; till then I shall support the resolution. Mr. SHERBURNE did not think, with the gentleman last up, that the interest of the country was concerned; the only thing they were concerned in was the payment of the money. The printing of this work did not depend on the motion of this House. Whether the House adopt it or not, the book will be published. It is a matter of private interest; a speculation in the adventurer, like other publications. The question, he conceived, meant only this: Should the members be supplied with these pamphlets at the expense of the public, or should they put their hands in their own pockets and pay for them individually? He thought the House had no greater reasons to supply the members with this work than other publications; they might as well be furnished with the works of _Peter Porcupine_, or the _Rights of Man_, at the public expense. Mr. W. SMITH said, the gentleman was mistaken with respect to the work going on, whether supported by the House or not. It was true as it respected the work proposed by Mr. Carpenter; but, with respect to Mr. Lloyd, he declared he could not undertake it, except the House would subscribe for five copies for each member. Mr. SWANWICK considered the question to be to this effect: whether the debates be under the sanction of the House or not? A gentleman had said, it will be a great service to the public to have a correct statement of the debates. I think the most likely way to obtain it correctly is to let it rest on the footing of private industry. We have a work, entitled _The Senator_, in circulation. I have no doubt but the publisher will find good account in the undertaking. Why should the House trouble itself to sanction any particular work? Gentlemen would then have enough to do every morning in putting the debates to rights before they were published, as they would be pledged to the accuracy of the reports. I never heard that, in the British House of Commons or Lords, such a motion was ever made, nor have I ever heard of such in any other country; then why should we give our sanction and incur a responsibility for the accuracy of it. He said he should vote against the motion, but would encourage such a work while it rested on the footing of private adventure. Mr. THATCHER said, he differed much from the gentleman last up, as it respected the responsibility of the House on such a publication. He thought it might as well be said, that because there had been a resolution for the Clerk to furnish the members of this House with three newspapers, the House was responsible for the truth of what those newspapers contained; if it was so, he should erase his name from his supply of them, as he thought, in general, they contained more lies than truth. Two considerations might recommend the resolution. It would encourage the undertaking, and also add to the stock of public information: on either of these, he would give it his assent. Soon after he came into the city, a paper was handed him with proposals for a publication of this kind (_The Senator_). He, with pleasure, subscribed to its support; as to general information, that was given already by newspapers, and though each member was to be supplied with five copies, yet very few would fall into hands where the newspapers did not reach. The work would go forward at any rate. If he thought the work depended on the motion, he should rejoice to give his vote toward its aid. On the question being put, only nineteen gentlemen voted in favor of the resolution; it was therefore negatived. The committee then rose, and the House took up the resolution. Mr. THATCHER observed, the question was put while he was inattentive: he wished it to lie over till to-morrow. Mr. GILES wished to indulge the gentleman in his desire. Mr. THATCHER then moved for the vote of the House, whether the report of the Committee of the Whole be postponed. Twenty-four members only appearing for the postponement, it was negatived. The question was then put, whether the House agreed to the report of the Committee of the Whole and disagreed with the report of the select committee; which appeared in the affirmative. The motion was therefore lost. _Address to the President._ The House again resolved itself into a Committee of the Whole on the Answer to the PRESIDENT's Address; when the Answer reported by the select committee was read by the Clerk, and then in paragraphs by the Chairman, which is as follows: SIR: The House of Representatives have attended to your communication respecting the state of our country, with all the sensibility that the contemplation of the subject and a sense of duty can inspire. We are gratified by the information that measures calculated to ensure a continuance of the friendship of the Indians, and to maintain the tranquillity of the _interior_ frontier, have been adopted; and we indulge the hope that these, by impressing the Indian tribes with more correct conceptions of the justice, as well as power of the United States, will be attended with success. While we notice, with satisfaction, the steps that you have taken in pursuance of the late treaties with several foreign nations, the liberation of our citizens who were prisoners at Algiers is a subject of peculiar felicitation. We shall cheerfully co-operate in any further measures that shall appear, on consideration, to be requisite. We have ever concurred with you in the most sincere and uniform disposition to preserve our neutral relations inviolate; and it is, of course, with anxiety and deep regret we hear that any interruption of our harmony with the French Republic has occurred; for we feel with you and with our constituents the cordial and unabated wish to maintain a perfectly friendly understanding with that nation. Your endeavors to fulfil that wish, (_and by all honorable means to preserve peace, and to restore that harmony and affection which have heretofore so happily subsisted between the French Republic and the United States_,) cannot fail, therefore, to interest our attention. And while we participate in the full reliance you have expressed on the patriotism, self-respect, and fortitude of our countrymen, we cherish the pleasing hope that a _mutual_ spirit of justice and moderation _on the part of the Republic_ will ensure the success of your perseverance. The various subjects of your communication will, respectively, meet with the attention that is due to their importance. When we advert to the internal situation of the United States, we deem it equally natural and becoming to compare the tranquil prosperity of the citizens with the period immediately antecedent to the operation of the Government, and to contrast it with the calamities in which the state of war still involves several of the European nations, as the reflections deduced from both tend to justify, as well as to excite, a warmer admiration of our free constitution, and to exalt our minds to a more fervent and grateful sense of piety towards Almighty God for the beneficence of His providence, by which its administration has been hitherto so remarkably distinguished. And while we entertain a grateful conviction that your wise, firm, and patriotic Administration has been signally conducive to the success of the present form of Government, we cannot forbear to express the deep sensations of regret with which we contemplate your intended retirement from office. As no other suitable occasion may occur, we cannot suffer the present to pass without attempting to disclose some of the emotions which it cannot fail to awaken. The gratitude and admiration of your countrymen are still drawn to the recollection of those resplendent virtues and talents which were so eminently instrumental to the achievement of the Revolution, and of which that glorious event will ever be the memorial. Your obedience to the voice of duty and your country, when you quitted reluctantly a second time the retreat you had chosen, and first accepted the Presidency, afforded a new proof of the devotedness of your zeal in its service, and an earnest of the patriotism and success which have characterized your Administration. As the grateful confidence of the citizens in the virtues of their Chief Magistrate has essentially contributed to that success, we persuade ourselves that the millions whom we represent participate with us in the anxious solicitude of the present occasion. Yet we cannot be unmindful that your moderation and magnanimity, twice displayed by retiring from your exalted stations, afford examples no less rare and instructive to mankind than valuable to a Republic. Although we are sensible that this event, of itself, completes the lustre of a character already conspicuously unrivalled by the coincidence of virtue, talents, success, and public estimation, yet we conceive that we owe it to you, sir, and still more emphatically to ourselves and to our nation (of the language of whose hearts we presume to think ourselves at this moment the faithful interpreters) to express the sentiments with which it is contemplated. The spectacle of a whole nation, the freest and most enlightened in the world, offering by its Representatives the tribute of unfeigned approbation to its first citizen, however novel and interesting it may be, derives all its lustre--a lustre which accident or enthusiasm could not bestow, and which adulation would tarnish--from the transcendent merit of which it is the voluntary testimony. May you long enjoy that liberty which is so dear to you, and to which your name will ever be so dear. May your own virtues and a nation's prayers obtain the happiest sunshine for the decline of your days and the choicest of future blessings. For your country's sake--for the sake of Republican liberty--it is our earnest wish that your example may be the guide of your successors; and thus, after being the ornament and safeguard of the present age, become the patrimony of our descendants. Mr. VENABLE observed, on a paragraph wherein it speaks of the "tranquillity of the interior frontier," he did not know what was the meaning of the expression: he moved to insert "Western frontier" in its stead. Mr. AMES observed that the words of the report are in the PRESIDENT's Speech; however, he thought the amendment a good one. It then passed. In the fourth paragraph are these words: "Your endeavors to fulfil that wish cannot fail, therefore, to interest our attention." At the word "wish," Mr. GILES proposed to insert these words: "and by all honorable means to preserve peace, and restore that harmony and affection which have heretofore so happily subsisted between the French Republic and this country;" and strike out the words that follow "wish" in that paragraph. He said, his reasons for moving this amendment were to avoid its consequences. He really wished the report entirely recommitted, as there were many objectionable parts in it. He had been very seriously impressed with the consequences that would result from a war with the French Republic. When I reflect, said Mr. G., on the calamities of war in general, I shudder at the thought; but, to conceive of the danger of a French war in particular, it cuts me still closer. When I think what many gentlemen in mercantile situations now feel, and the dreadful stop put to commerce, I feel the most sincere desire to cultivate harmony and good understanding. I see redoubled motives to show the world that we are in favor of a preservation of peace and harmony. Mr. W. SMITH said, he should not object to the amendment; but he thought it only an amplification of a sentiment just before expressed. He did not see any advantage in the sentiment as dilated, nor could he see any injury which could accrue from it. He hoped every gentleman in the House wished as sincerely for the preservation of peace as that gentleman did. Mr. AMES wished to know of the gentleman from Virginia, whether he meant to strike out the latter part of this paragraph; if he did, he would object to it. Mr. GILES said, he did not mean to strike out any more of this paragraph. Mr. AMES wished it not to be struck out. By the amendment to strike out, we show the dependence we place on the power and protection of the French. While we declare ourselves weak by the act, we lose the recourse to our own patriotism, and fly, acknowledging an offence never committed, to the French for peace. He hoped the gentleman would be candid upon this occasion. Mr. GILES said, he only wished this House to express their most sincere and unequivocal desire in favor of peace, and not merely to leave it to the PRESIDENT. He said, he had spoken upon this occasion as he always had done on this floor. He always had, and he hoped always should state his opinions upon every subject with plainness and candor. The amendment passed unanimously. Mr. GILES then proposed an amendment to the latter part of the same paragraph which would make it read thus: "We cherish the pleasing hope that a spirit of mutual justice and moderation will ensure the success of your perseverance." The amendment was to insert the word "mutual." He thought we ought to display a spirit of justice and moderation as well as the French. This amendment, he thought, would soften the expression, and, acting with that spirit of justice and moderation, accomplish a reconciliation. The amendment was adopted. On the Chairman's reading the last paragraph except one in the report, which reads thus: "The spectacle of a whole nation, the _freest and most enlightened in the world_," Mr. PARKER moved to strike out the words in italic. Although, said he, I wish to believe that we are the freest people, and the most enlightened people in the world, it is enough that we think ourselves so; it is not becoming in us to make the declaration to the world; and if we are not so, it is still worse for us to suppose ourselves what we are not. Mr. HARPER said he had a motion of amendment in his hand which would supersede the necessity of the last made, which, if in order, he would propose: it was to insert words more simple. He thought the more simple, the more agreeable to the public ear. His amendment, he thought, would add to the elegance and conciseness of the expression. He did not disapprove of the Address as it now stood, but he thought it might be amended. This, he said, would add to the dignity, as well as to the simplicity of the expression. He thought it would be improper to give too much scope to feeling: amplitude of expression frequently weakens an idea. Mr. GILES said he saw many objectionable parts in the amendments proposed by the gentleman just sat down. He wished to strike out two paragraphs more than Mr. HARPER had proposed; indeed, he wished the whole to be recommitted, that it might be formed more congenial to the wishes of the House in general, and not less agreeable to the person to be addressed. Mr. SMITH observed, that as the answer had been read by paragraphs nearly to the close, he thought it very much out of order to return to parts so distant. The Chairman said that no paragraph on which an amendment had been made could be returned to; but where no amendment had been made, it was quite consistent with order to propose any one gentlemen may think proper. Mr. W. SMITH opposed striking out any paragraph. It was, he said, the last occasion we should have to address that great man, who had done so much service to his country. The warmth of expression in the answer was only an evidence of the gratitude of this House for his character. When we reflect on the glowing language used at the time when he accepted of the office of PRESIDENT, and at his re-election to that office, why, asked he, ought not the language of this House to be as full of respect and gratitude now as then? particularly when we consider the addresses now flowing in from all parts of the country. I object to the manner of gentlemen's amendments as proposed, to strike out all in a mass. If the sentiments were agreeable to the minds of the House, why waste our time to alter mere expressions while the sentiment is preserved? No doubt every gentleman's manner of expression differed, while their general ideas might be the same. He hoped mere form of expression would not cause its recommitment. Mr. GILES did not object to a respectful and complimentary Address being sent to the PRESIDENT, yet he thought we ought not to carry our expressions out of the bounds of moderation; he hoped we should adhere to truth. He objected to some of the expressions in those paragraphs, for which reason he moved to have the paragraphs struck out, in order to be amended by the committee. He wished to act as respectful to the PRESIDENT as any gentleman, but he observed many parts of the Address which were objectionable. It is unnatural and unbecoming in us to exult in our superior happiness, light, or wisdom. It is not at all necessary that we should exult in our advantages, and thus reflect on the unhappy situation of nations in their troubles; it is insulting to them. If we are thus happy it is well for us; it is necessary that we should enjoy our happiness, but not boast of it to all the world, and insult their unhappy situation. As to those parts of the Address which speak of the wisdom and firmness of the PRESIDENT, he must object to them. On reflection, he could see a want of wisdom and firmness in the Administration for the last six years. I may be singular in my ideas, said he, but I believe our Administration has been neither wise nor firm. I believe, sir, a want of wisdom and firmness has brought this country into the present alarming situation. If after such a view of the Administration, I was to come into this House and show the contrary by a quiet acquiescence, gentlemen would think me a very inconsistent character. If we take a view of our foreign relations, we shall see no reason to exult in the wisdom or firmness of our Administration. He thought nothing so much as a want of that wisdom and firmness had brought us to the critical situation in which we now stand. If it had been the will of gentlemen to have been satisfied with placing the PRESIDENT in the highest possible point of respect amongst men, the vote of the House would have been unanimous, but the proposal of such adulation could never expect success. If we take a view into our internal situation, and behold the ruined state of public and private credit, less now than perhaps at any former period however, he never could recollect it so deranged. If we survey this city, what a shameful scene it alone exhibits, owing, as he supposed, to the immense quantity of paper issued. Surely this could afford no ground for admiration of the Administration that caused it. I must acknowledge, said Mr. GILES, that I am one of those who do not think so much of the PRESIDENT as some others do. When the PRESIDENT retires from his present station, I wish him to enjoy all possible happiness. I wish him to retire, and that this was the moment of his retirement. He thought the Government of the United States could go on very well without him; and he thought he would enjoy more happiness in his retirement than he possibly could in his present situation. What calamities would attend the United States, and how short the duration of its Independence, if one man alone can be found to fill that capacity! He thought there were thousands of citizens in the United States able to fill that high office, and he doubted not that many may be found whose talents would enable them to fill it with credit and advantage. Although much had been said, and that by many people, about his intended retirement, yet he must acknowledge he felt no uncomfortable sensations about it; he must express his own feelings, he was perfectly easy in prospect of the event. He wished the PRESIDENT as much happiness as any man. He declared he did not regret his retreat; he wished him quietly at his seat at Mount Vernon; he thought he would enjoy more happiness there than in public life. It will be very extraordinary if gentlemen, whose names in the yeas and nays are found in opposition to certain prominent measures of the Administration, should come forward and approve those measures: this we could not expect. He retained an opinion he had always seen reason to support, and no influence under Heaven should prevent him expressing his established sentiments; and he thought the same opinions would soon meet general concurrence. He hoped gentlemen would compliment the PRESIDENT privately, as individuals; at the same time, he hoped such adulation would never pervade that House. I must make some observation, said Mr. G., on the last paragraph but one, where we call ourselves "the freest and most enlightened nation in the world:" indeed, the whole of that paragraph is objectionable; I disapprove the whole of it. If I am free, if I am happy, if I am enlightened more than others, I wish not to proclaim it on the house top; if we are free, it is not prudent to declare it; if enlightened, it is not our duty in this House to trumpet it to the world; it is no Legislative concern. If gentlemen will examine the paragraph, [referring to that contained in the parenthesis,] it seems to prove that the gentleman who drew it up was going into the field of adulation; which would tarnish a private character. I do think this kind of affection the PRESIDENT gains nothing from. The many long Addresses we hear of, add nothing to the lustre of his character. In the honor we may attempt to give to others we may hurt ourselves. This may prove a self-destroyer; by relying too much on administration, we may rely too little on our own strength. Mr. SITGREAVES said, that whatever division of the question gentlemen would propose, was indifferent to him; the words of the answer were perfectly congenial with his wishes, and he was prepared to give his opposition to any of the amendments proposed. On mature deliberation, there was not a sentiment in the report but he highly approved. He could not see any thing unnatural or unbecoming in drawing just comparisons of our situation with that of our neighbors; this is the only way we can form a just view of our own happiness. It is a very necessary way to come to a right knowledge of our own situation by comparing it with that of other nations. He would not reproach another people because they are not so happy as we are; but he thought drawing simple comparisons in the way of the report was no reproach. He was not against bringing the comparison down to private life, as the gentleman from Virginia had done; he should think it wrong in a man to exult over his neighbor who was distressed or ignorant, because himself was wealthy or wise. Yet he saw no impropriety in his own family of speaking of their happiness and advantages, compared with that of others; it would awaken in them a grateful sense of their superior enjoyments, while it pointed out the faults and follies of others, only in order that those he had the care of may learn to avoid them: thus while our happiness is pointed out, the miseries of nations involved in distress are delineated to serve as beacons for the United States to steer clear of. He did not, with the gentleman from Virginia, in any degree, doubt of the wisdom or firmness of the Administration of America. In the language of the Address, he entertained a very high opinion of it, "a grateful conviction that the wise, firm, and patriotic Administration of the PRESIDENT had been signally conducive to the success of the present form of Government." Such language as this is the only reward which can be given by a grateful people for labors so eminently useful as those of the PRESIDENT had been. This was not his sentiment merely, it was the sentiment of the people of America. Every public body were conveying their sentiments of gratitude throughout the whole extent of the Union. Why then should this House affect a singularity, when our silence on these points would only convey reproach instead of respect. If these sentiments were true, why not express them? But if, on the contrary, what the gentleman asserted, that the Administration of the PRESIDENT had been neither wise, firm, nor patriotic, then he would concur with the motion for striking out; but he was not convinced of the truth of this assertion; and while this is not proved, he should vote against the motion. Mr. SITGREAVES said, he could not agree with the motion of the gentleman from South Carolina, (Mr. HARPER,) because his motion was for substituting other words in the place of those in the report, without any reason whatever. If the gentleman, by altering the phraseology, can make the sentiment any better, by all means let it be done: but if the sentiment is not to be changed, why alter it merely to substitute other words? On the whole, Mr. S. observed, that he did not see the answer could in any degree be reproached. There are no sentiments in it but what are justifiable on the ground of truth; they are free from adulation. It is such an expression of national regret and gratitude as the circumstance calls for; a regret at the retirement of a faithful and patriotic Chief Magistrate from office. A regret and gratitude which he believed to be the sentiment of Americans. Mr. SWANWICK began by observing that there were points in the Address in which all gentlemen seemed to agree, while on other parts they cannot agree. We all agree in our desire to pay the PRESIDENT every possible mark of respect; but we very materially disagree wherein a comparison is drawn between this and foreign nations. If we are happy and other nations are not so, it is but well for us; but he thought it would be much more prudent in us to let other nations discover it, and not make a boast of it ourselves. It is very likely that those nations whom we commiserate may think themselves as happy as we are: they may feel offended to hear of our comparisons. If we refer to the British Chancellor of the Exchequer in his speeches, he would tell us that is the happiest and most prosperous nation upon earth. How then can we commiserate with it as an unfortunate country? If, again, we look to France, that country which we have pointed out as full of wretchedness and distress, yet we hear them boast of their superiority of light and freedom, and we have reason to believe not without foundation. A gentleman had talked about the flourishing state of our agriculture, and asserted that our late commercial calamities were not proofs of our want of prosperity, which the gentleman compared to specks in the sun. That gentleman speaks as though he lived at a distance. Has he heard of no commercial distresses, when violations so unprecedented have of late occurred? One merchant has to look for his property at Halifax, another at Bermuda, another at Cape Françoise, another at Gonaives, &c.; all agree that they have suffered, and that by the war. These are distresses gentlemen would not like to feel themselves. Mr. S. said he had felt for these occurrences. We are not exempt from troubles: probably we may have suffered as much as other nations who are involved in the war. It is a question whether France has been distressed at all by the war. She has collected gold and silver in immense quantities by her conquests, together with the most valuable stores of the productions of the arts; as statues, paintings, and manuscripts of inestimable worth; and at sea has taken far more in value than she has lost: besides, her armies are subsisting on the requisitions her victories obtain. And has England gained nothing by the war? If we hearken to Mr. Pitt, we may believe they are very great gainers. Surely the islands in the West and East Indies, Ceylon, and the Cape of Good Hope, the key to the East Indies, are advantages gained; besides the quantity of shipping taken from our merchants. Mr. S. thought if we were to compare, we should find those nations had gained by the war, while we had lost; and of course there was no reason for us to boast of our advantages. Mr. W. SMITH next rose, and observed that gentlemen wished to compliment the PRESIDENT, but took away every point on which encomium could be grounded. One denies the prosperity of the country, another the free and enlightened state of the country, and another refuses the PRESIDENT the epithet of wise and patriotic. Mr. GILES here rose to explain. If he was meant, he must think the gentleman was wrong in his application. He said he had never harbored a suspicion of the good intentions of the PRESIDENT, nor did he deny his patriotism; but the wisdom and firmness of his Administration he had doubted. He thought him a good meaning man, but often misled. Mr. SMITH again rose, and said, he must confess himself at a loss for that refinement to discover between the wisdom and patriotism of the PRESIDENT, and that of his Administration. It was moved to strike out this acknowledgment of wisdom and firmness. What were we to substitute as complimentary to him in its place? The first paragraph proposed to be struck out related to our speaking of the tranquillity of this country, compared to nations involved in war. Could this give offence, because we feel pleasure in being at peace? It was only congratulating our own constituents on the happiness we enjoy. To appreciate the value of peace, it was necessary to compare it with a state of war. It was the wisdom of this country to keep from war, and other nations hold it up as exemplary in us. The gentleman himself has declared his wish for the preservation of peace; and though he admires it, and nations admire it in us, yet we are not to compare our state with nations involved in the calamities of war, in order to estimate our enjoyments. The words of this Address are not a communication to a foreign minister, it is a congratulation to our own Chief Magistrate of the blessings he, in common with us, enjoys. Mr. S. hoped the words would not be struck out. Mr. DAYTON (the Speaker), said, that he did not rise to accept the challenge given by the gentleman who spoke last from South Carolina, and to point out a nation more free and enlightened than ours; nor did he mean to contest the fact of ours being the freest and most enlightened in the world, as declared in the reported Address, but he was nevertheless of opinion that it did not become them to make that declaration, and thus to extol themselves by a comparison with, and at the expense of all others. Although those words were in his view objectionable, he was far from assenting to the motion for striking out the seven or eight last clauses of the Address. The question of order having been decided, Mr. D. said he would remind the committee, that if they wished to retain, or even to amend, any section or sentence of all that was proposed to be struck out, they ought to give their negatives to this motion, as the only means of accomplishing their purpose. It was sufficient, therefore, for those who were opposed to the question for striking out the whole, to show that any part included within it ought to be preserved. Not unnecessarily to waste time, by lengthening the debate, he would take the clause first in order, and confine his remarks to that alone. This part of the Address had certainly not been read, or had been misunderstood and misrepresented by the member from Pennsylvania. Mr. AMES said, if gentlemen meant to agree to strike out the whole as proposed, in order to adopt those words substituted by the gentleman from South Carolina (Mr. HARPER), he must observe that he thought this would be as far from giving satisfaction to others, who, it appeared, wanted no substitute. He, therefore, hoped that kind of influence would not prevail on this occasion. The gentleman who made the motion did it to accommodate matters, and not because he himself objected to the answer reported. It is well known that a committee of five members, opposite in sentiment, was appointed to prepare a respectful Address in answer to the PRESIDENT's Speech. [Here the original instructions were read.] As it was the duty of the committee to prepare a respectful Address, it cannot be matter of surprise, although it may of disapprobation with some, that the committee did their duty, and have taken notice of the several matters recommended to the House in that Speech. Respecting the particular notice they have taken, it might have been thought that some difficulty would occur. He said he need not observe, that the committee had reason to imagine that the form of the report would be agreeable to the House, as they were unanimous; although there had been in the wording some little difference of opinion, yet all agreed substantially in the Address, from a conviction of the delicacy of the subject. For that reason, if that only, unless the sentiments in the report of the Address should be found inconsistent with truth, he hoped no substitute of a form of words merely would prevail, as it would no longer be that agreed to in the committee, nor could come under their consideration equal to the printed report. He therefore trusted that when the committee came to the question, whether to strike out or not, gentlemen would be guided by no other motive to vote for striking out, than an impropriety in the sentiments through an evident want of truth in them; and if such cannot be discovered, why strike out the expressions? It had been observed by some gentleman, that the cry of foreign influence is in the country. He did not see such a thing exist. He would not be rudely explicit as to the foundation there was for such a cry; but when it was once raised, the people would judge whether it was fact or not. He could not tell how this influence was produced, but the world would draw a view how far we were under foreign influence. Mr. A. here alluded to the influence which foreign agents wished to have over the minds of the people of this country, in order to support a factious spirit, probably to the appeal lately made to the people. He also alluded to a circumstance when the Imperial Envoy, M. Palm, in 1727, at London, published a rescript, complaining of the conduct of that Court; the spirit of the nation rose, and discord was sown. In consequence of which the Parliament petitioned the King to send the Envoy out of the country for meddling with the concerns of their nation. That is the nation which we call corrupted. Yet a similar affair has occurred here, and it is not to be reprobated; we are not to complain of it, nor even hear it, according to this doctrine. Independence is afraid of injuries, and almost of insults. We must forbear to exult in our peace, our light, our freedom, lest we should give offence to other nations who are not so. This may be the high tone of independence in the views of some people, but I must confess it is not so in mine; but it is probable those people may be wiser than I am, and their views extend farther. Foreign influence exists, and is disgraceful indeed, when we dare admire our own constitution, nor adore God for giving us to feel its happy effects. He thought, respecting the recent complaints of the French Minister, that there was not even a pretext for the accusation. It had been observed by a gentleman, that the PRESIDENT, no doubt, is a very honest man, and a patriot, but he did not think him a wise man. Mr. GILES here rose to explain. He said that, in his assertions, he meant not to reflect on his private character. He referred to his Administration. No doubt but the gentleman possessed both. Mr. AMES said, he considered well what the gentleman had said. As a private man, his integrity and goodness cannot be doubted; but in his Administration--here we are to stop short; not a word about that; it won't bear looking into; it has been neither firm nor wise. If the House, in their Address to him, were to say, we think you a very honest, well-designing man, but you have been led astray, sometimes to act treacherously, and even dishonest in your Administration--we think you a peaceful man, and though much iniquity may have been practised in your Government, yet we think you are not in fault; on the whole, sir, we wish you snugly in Virginia. Such sentiments as these I do not like. Is this an Address or an insult? Is this the mark of respect we ought to show to the first man in the nation? Mr. A. observed, that he did not agree with the gentleman from South Carolina (Mr. SMITH), who said, that the President would carry daggers in his heart with him into his retreat from public life, if we refuse him our testimony of gratitude. No, he bears in his breast a testimony of his purity of motive; a conscious rectitude, while in public life, which daggers could not pierce. He would retire with a good conscience; perhaps it would be said this was adulation, but let it be remembered this was truth; this was not flattery; let gentlemen deny this; let them prove that this is not the will of their constituents. The country would judge our opinions when we come to give our yeas or nays; then the real friends of that man would be known. The gentleman wishes him back to Virginia, was glad he designed to go; he did not regret his resignation. His name will appear in that opinion. The whole of the PRESIDENT's life would stamp his character. His country, and the admiring world knew it; and history keeps his fame, and will continue to keep it. We may be singular in our opinions of him, but that will not make his character with the world the less illustrious. We now are to accept of his resignation without a tribute of respect. We are not to speak of him as either wise or firm. We can only say he is an honest man: this would scarcely be singular; many a man is honest without any other good qualifications. What circle would gentlemen fix the committee in to amend this Address, if they are not to give scope to these sentiments? Better appoint no committee at all. If we address the PRESIDENT at all, I hope it will be respectfully, for loth respect is insult in disguise. I hope we shall not alter the original draft of the Address, but agree according to our former intentions to present a respectful and cordial Address. Mr. SWANWICK rose to explain to those parts of the observations of some gentlemen who had lately spoken (Mr. DAYTON and Mr. AMES) on that part of the paragraph, which speaks of our gratitude to Providence. He should be sorry if such an idea was entertained from any thing he had observed. It was not that part of the paragraph, but the part where we are contrasted with other nations, that he objected to principally. Although, he must observe, it was not spoken in a style common to devotion, to tell Providence how wise and enlightened we were. It does not boast of our philanthropy, to say how much wiser and better we are than other nations. He thought the gentleman's reference to a clergyman very curious. It would not be right in us to say to God, we thank thee, we are wiser or more enlightened than others! If we are so, let us rejoice in it, and not offend others by our boasting. Gentlemen say, we are happier than though we were at war; are we at peace? No: we are involved in the worst of wars. Witness our spoliations from Algerine, English, and French cruisers, from some of which he himself had suffered materially. The PRESIDENT does not think we are at peace: he recommends a navy as the only efficient security to our commerce. How could that little island (England) command such influence in foreign dominions? It is by her navy. We cannot boast of such power. While we think ourselves much happier and stronger than others, others think us more diminutive; let us not boast. He feared that the revenues of this country would suffer materially through the great stagnation of commerce. He did not think they would be as productive as formerly. He feared it was too generally known, that this was not a time of very great prosperity. As he did not, for one, feel the prosperous situation of the country, he could not consent to violate his feelings by speaking contrary to them. The gentleman from Massachusetts (Mr. AMES) last session, spoke with great eloquence and at great length of the horror of war; which he considered as inevitable if the British Treaty (then the subject of debate) was not carried into effect. Mr. CHRISTIE moved for the committee to rise. The House divided on the motion; 43 members appeared against it, 31 only in favor of it. It was lost. Mr. GILES rose and observed that he should not have troubled the committee with any further observations, but his ideas had been misrepresented; although he endeavored to prevent a possibility of misconstruction, yet it seems he had not been able to accomplish his wish. It was not wonderful, he said, that the PRESIDENT's popularity should be introduced into the debate when it had been so long in question. It had been too commonly done, he thought, but he hoped the influence of it would not be very great. As to the unanimity of the committee who drew up the Address, he cared very little about it; he should be extremely sorry to see it have any influence on the members of that House. Gentlemen have said, that if we take out the expressions of our sense of the wisdom and firmness of the Administration of the PRESIDENT, they cannot find any ground on which to compliment him; if so, he for one would not be willing to present an Address at all. But his views were quite different; he thought it could be effectually done without adulation. He could not consent to acknowledge the wisdom and firmness of his Administration. Gentlemen had inquired for instances in evidence of this assertion. He said, that without seeking for more instances, that of the British Treaty was a standing proof in support of the assertion. Though many gentlemen believe nothing has been done injurious to the United States through that treaty, yet I acknowledge I see very great danger; we are not now in that state of security which could be wished. It is well known that the operation of the British Treaty is the groundwork of all the recent complaints of the French Government. It may be said that many of the complaints of the French Minister originated from actions previous to the British Treaty. It may be so, but that was the means of calling forth complaints which, perhaps, would otherwise never have been made; else why did not this calamity befall us before? It certainly may be ascribed to that instrument. Gentlemen may talk as they please about the law of nations; but the law of nations is, that a neutral nation shall not do any thing to benefit one belligerent power to the injury of another. Mr. G. said, he thought matters carried a serious aspect, and he very much disapproved of the declaration of a gentleman (Mr. AMES) who says, now is the time of danger; we are on the eve of a war with France, now let us boldly assert our rights. At the time the British Treaty was debating on, that gentleman was overcome with the prospect of a war; he then depicted it in horrible forms; but now how different his language! He now seems not afraid to embrace all its horrors, and was zealously calling out for the nation to support the Administration. Why did we not hear this when the British spoliated on our commerce! If we are upon the eve of a war with France, as the gentleman supposes, it will be disastrous to this country; we have reason to deplore it; it will be calamitous indeed. France has more power to injure this country than any nation besides, and none we can injure less. What an influence can she command over our commerce? She can exclude us from our own ports; spoil our trade with Great Britain, and from her own extensive country; she can shut us out from the East Indies, as well as the West Indies; ruin our trade in the Mediterranean, which, owing to the late conquests of the French, may be rendered very flourishing and important to us; and by her alliance, offensive and defensive, with Spain, we not only have another enemy, but lose our late advantages in the navigation of the Mississippi. Suppose, by the influence of her politics, the doctrine of liberty and equality were to be preached on the other side of the Alleghany mountains, what numerous enemies may they breed in our own country? France can wound us most, and we have the least reason to provoke her. It would be policy in her to go to war with us; by ruining our trade with England, she could give a violent wound to her enemy; yet that gentleman says, now is the time to assert our rights, now we are in danger. The war-whoop and the hatchet, of which the gentleman spoke so feelingly last session, is no longer in his thoughts. If this was the only reason he had, it would be enough to influence his vote against an acknowledgment of the wisdom and firmness that has dictated our Administration. Mr. WILLIAMS rose and said, he was sorry to trouble the committee at such a late hour, but he could not be satisfied with giving a silent vote on an occasion when the PRESIDENT's popularity was doubted. He thought members ought to speak the will of the people they represent. He could assert that it was not merely his own opinion he spoke, but that of his constituents, when he voted for the Address as reported. He was sorry to hear the gentleman last up speak in the style he had done, although he owned it was not altogether new to him. The gentleman wished the first clause to be struck out. Mr. W. thought it was the duty of every pious man to thank God for the benefits he enjoys. And shall not we, as a nation, thank him for keeping us from a state of war? Gentlemen's ideas were to strike the whole out in a mass; but he hoped they would not be gratified. Mr. W. said, he was very sorry to hear the gentleman speak against the wisdom and firmness of the PRESIDENT, which assertion seemed to have its foundation in the Treaty concluded with Great Britain. He would ask the gentleman whether that act of ours should have any influence on our situation with France? Wherein have we differed from the compact made with France by our treaty made with that country? We surely had a right to treat with Great Britain, else we could not be an independent nation; and France will not deny this. In 1778, the Ambassador of France informed the British Court that his nation had entered into a treaty with the United States, and at the same time informed them that great attention had been paid by the contracting parties not to stipulate any exclusive advantage in favor of the French nation, and that there was reserved, on the part of the United States, the liberty of treating with any nation whatsoever upon the same footing of equality and reciprocity. But the gentleman (Mr. GILES) says, we ought not to give an advantage to an enemy. Mr. W. said, that no advantage was given to Britain, but, on the contrary, the article complained of must be of advantage to France; it is an encouragement for American vessels to go to their ports; it insures them against loss, if they are interrupted in their voyage. It had been said that it would be to the interest of France to go to war with us; if they consider it so, all that gentleman can say will not prevent it. When we reflect on a Treaty entered into on this principle with Great Britain, should France complain? THURSDAY, December 15. _Address to the President._ The House, according to the order of the day, resolved itself into a Committee of the Whole on the answer to the PRESIDENT's Address, Mr. MUHLENBERG in the chair. The question before the committee was Mr. GILES' motion for striking out. Mr. NICHOLAS said, he sincerely wished that such an answer might be agreed to, as would give a general satisfaction. He hoped some mode would be adopted to unite the wishes of every gentleman; his disposition, he said, led him to vote for the paragraph; he thought himself at liberty so to do, as he was satisfied the Administration had been, in many instances, wise and firm. He thought it improper that such debate should take place at the present time. He could see no inconvenience that could arise from voting for the Address. The words on which most stress had been laid, were those expressive of the wisdom and firmness of the PRESIDENT's administration. He declared he thought it had much contributed to the success of this country; and if success had attended his measures, there could be nothing inconsistent in their acknowledging it; which was all the compliment necessary to give satisfaction. Mr. RUTHERFORD.--My colleague has in a great measure anticipated my sentiments on this occasion. I am sorry for the mistaken zeal the gentlemen of the committee should have shown for the PRESIDENT, by introducing expressions into the Address so exceptionable, and which should be subject to such an uncomfortable exposure of that character. I was able yesterday only to attend a part of the debate, through indisposition, but what I did stay to hear, hurt me very much. I heard gentlemen speak ill of the common parent of our country, whom we all revere; and was a slip, but one criminal slip, to rob the PRESIDENT of his good name? We have seen the goodness of the heart of that man, and with satisfaction. We have seen him wrestling with his own feelings to continue in the important and weighty business of Government; we have seen him contending with two great rival nations, and yet preserved peace. When he had made a slip, the people of America have stepped forward to assist him, and dropped the generous tear, sensible that to err is human, and that we are all liable to do wrong. I am sure that my colleagues and every one in the House hold the character and virtue of that man in high esteem. I am sorry to see that division of sentiment which has taken place; it would make the world believe that we wish to rob him of those qualifications. It is the justice and duty of this House to do that man, that patriot, all the honor they can, whilst it is the interest of this nation to hold in view those great points with generous satisfaction, and good wishes to the man who has stepped forward, and not in vain, to the support of our Republic in the war, and under Divine assistance was made our deliverer. And now for gentlemen to come here and speak of the troubles of the country, ascribing all our adversity to him, it is like applying cold water where the strongest energy is necessary. Again I would repeat, that if that man, our common parent, has committed errors, it is no more than we all may do--it is the general lot of all. If there have been faults in the Administration, I do not think they lie at his door, but at his counsellors'; he has had bad counsellors; his advisers are to blame, and not him. I never saw how he could have done otherwise than he did. And now, sir, said Mr. R., it is our duty to bear those great actions and generous sentiments in our view, that, on his retirement from his public station, we may render him all the respect due to his character. Nor would I less remember our situation with France, that great and generous Republic, under whom we owe our liberty. Let us not give offence to her, but by every mark of gratitude and respect, act a part consistent with a just sense of our peaceable intention. Let us act with the greatest circumspection and deliberation. Mr. LIVINGSTON was sorry the answer was not drafted so as to avoid this debate. He said it was his sincere desire and hope that the candor of gentlemen who advocated the Address in its present form, and those who wished it amended, would so combine as to make it agreeable to all. He said he intended to oppose the amendments which had been proposed, although he did not see the Address every way right; with a view to reconcile parties, when the present motion was disposed of, he should move to strike out some words, in order to insert others. He could not, like some gentlemen, draw consolation from the misfortunes of other nations; their distresses were rather matter of regret; nor did he see a propriety, as another gentleman had done, of likening our affairs with those of the members of a family; but, even if it would bear, he could not see that tranquillity in this family as was expressed. His only objection, he said, to the paragraph in question, was the words "tranquil prosperity." He believed the United States did not enjoy that tranquil prosperity; on the contrary, he thought this was a time of great calamity in the country, and he thought that it was owing, principally, to the measures of the Government. There were other clauses in the Address, he said, he should, when they came to be considered, make objections to, and he thought they could be all easily removed by motions suitable; however, he said there were many sentiments in the Address in which he heartily concurred. He should vote against the striking out the eight clauses in question, as he thought such amendments could be proposed as would make the Address meet his hearty concurrence, and he believed give general satisfaction. Mr. GILES' motion was then put, to strike out those clauses, and negatived. Mr. PARKER renewed the motion he made yesterday, to strike out the words "freest and most enlightened in the world." Mr. AMES hoped that the motion to strike out would not prevail; for, without being over tenacious on the subject, he must give a preference to the copy of the report which was printed; the members had the advantage of weighing it in their minds, which they would lose by adopting the substitute; besides, he thought the ideas were so crowded in that proposed, as to render it heavy; he hoped the reported Address would be agreed to. Mr. HARPER's motion was then put and negatived. Twenty-five members only voting for the motion. Mr. PARKER again moved to strike out "freest and most enlightened," &c. Mr. W. SMITH said yesterday, in the discussion on the subject, gentlemen had assigned for their reason to strike out those words that other nations would be offended at us. It was usual, he said, for nations to applaud themselves, and he thought it could give no offence to any. He did not hear gentlemen mention what nation was meant. He presumed the only nation that could be alluded to was the French Republic. If, however, it can be proved that they have used similar language, he supposed it would give gentlemen some ease as to this particular. In looking over some papers, he had seen several bombastical expressions in a note of Barthelemy, a report to the Convention of Laviere, and of Cambaceres, in the name of the three committees. In one are these words, "a Government so powerful as the French." In another, he calls it "the most enlightened in the civilized world." In another, "the first in the universe." He hoped that while that nation could use expressions like these, the gentlemen of this House would not think the expressions referred to would give offence to that or any other nation. Mr. PARKER said, when he made the motion he did not refer to any particular nation; he had neither France nor England in view; he did not wish to see us contrast our political situation with that of any other country. His objections to the words, he said, arose from our making the declaration ourselves. Our Government, he acknowledged, was free; it was the best, in his opinion, any where. He wished to believe the people as enlightened as any other; he believed they were, and if they were not, they had only themselves to blame; but however enlightened or free we were, in his opinion, we were not the proper organs to declare it; however enlightened we might be, he thought the last four years Administration had convinced many, as well as himself, that the Administration was not the most enlightened; if they had, they would not have suffered such shameful spoliations on our commerce, and shameful acts of cruelty to our seamen. He said the two little monarchies of Denmark and Sweden, neither of which, in point of extent, can be compared with the United States, more (to use the comparison of the gentleman from Pennsylvania yesterday) than a speck is to the sun; nor are they either of them in population nearly equal to the United States; and although they are surrounded by the greatest warlike powers in a belligerent state, yet they have preserved their neutrality inviolate; their ships have not been wantonly seized, nor have their seamen been torn from their ships, or whipped at the gang-way of British ships-of-war, or been shot by their press-gangs. To mention the instances of British cruelty towards our seamen in every instance that could be adduced, would take up time unnecessarily; one alone, that recently happened, I shall relate: The brother of a member of this House (Mr. FRANKLIN, of N. C.) was impressed on board a British ship-of-war in the West Indies; he was unacquainted with seamanship, having only made a passage from North Carolina to the Islands; being awkward and not being a seaman, he was discharged. The same evening, a press-gang of the same ship fell in with him and made him a prisoner; in attempting to make his escape, he was shot at. The ball was aimed at his body; it was not winged with death, but the young man was wounded in the hand. Mr. AMES said, if any man were to call himself more free and enlightened than his fellows, it would be considered as arrogant self-praise. His very declaration would prove that he wanted sense as well as modesty, but a nation might be called so, by a citizen of that nation, without impropriety; because, in doing so, he bestows no praise of superiority on himself; he may be in fact, and may be sensible that he is less enlightened than the wise of other nations. This sort of national eulogium may, no doubt, be fostered by vanity, and grounded in mistake; it is sometimes just, it is certainly common, and not always either ridiculous or offensive. It did not say that France or England had not been remarkable for enlightened men; their literati are more numerous and distinguished than our own. The character, with respect to this country, he said, was strictly true. Our countrymen, almost universally, possess some property and some pretensions of learning--two distinctions so remarkably in their favor, as to vindicate the expression objected to. But go through France, Germany, and most countries of Europe, and it will be found that, out of fifty millions of people, not more than two or three had any pretensions to knowledge, the rest being, comparatively with Americans, ignorant. In France, which contains twenty-five millions of people, only one was calculated to be in any respect enlightened, and, perhaps, under the old system, there was not a greater proportion possessed property; whilst in America, out of four millions of people, scarcely any part of them could be classed upon the same ground with the rabble of Europe. That class called vulgar, canaille, rabble, so numerous there, does not exist here as a class, though our towns have many individuals of it. Look at the lazzaroni of Naples; there are twenty thousand or more houseless people, wretched, and in want! He asked whether, where men wanted every thing, and were in proportion of 29 to 1, it was possible they could be trusted with power? Wanting wisdom and morals, how would they use it? It was, therefore, that the iron-hand of despotism was called in by the few who had any thing, to preserve any kind of control over the many. This evil, as it truly was, and which he did not propose to commend, rendered true liberty hopeless. In America, out of four millions of people, the proportion which cannot read and write, and who, having nothing, are interested in plunder and confusion, and disposed for both, is small. In the Southern States, he knew there were people well-informed; he disclaimed all design of invidious comparison; the members from the South would be more capable of doing justice to their constituents, but in the Eastern States he was more particularly conversant, and knew the people in them could generally read and write, and were well-informed as to public affairs. In such a country, liberty is likely to be permanent. They are enlightened enough to be free. It is possible to plant it in such a soil, and reasonable to hope that it will take root and flourish long, as we see it does. But can liberty, such as we understand and enjoy, exist in societies where the few only have property, and the many are both ignorant and licentious? Mr. CHRISTIE wished to make an amendment to the paragraph, which he thought would answer the end equally as well as striking it out; if agreeable to the gentleman from Virginia, (Mr. PARKER,) he would move to put the word "among" after the word "freest," which would read "the freest and _among_ the most enlightened." He could not say we were the most enlightened, but he did think us the most free; not that he was afraid of offending any nation, but he thought this a more consistent declaration. Mr. SWANWICK said, nobody doubted but we were free and enlightened, but he thought their declaration was no evidence of the truth of it. He thought the last amendment very good, but it would be still better if the gentleman would put the word "among" a little further back, so as to read "among the freest and most enlightened." A pacific disposition could not be proved by any thing so well as treating others with respect as well as ourselves; we may not be exclusively free or enlightened. He hoped it would be thus altered. Mr. CHRISTIE thought we were the freest people in the world; he, therefore, could not agree to the amendment last proposed. Mr. COIT could not say with the gentleman last up, that we were the freest, but he was very willing to agree with the amendment of a gentleman, that we were among the freest and most enlightened; he thought the first amendment much improved by this; he said it removed great part of the difficulty from the minds of many gentlemen; however, he hoped no unnecessary time would be taken up with such trifles. Mr. DAYTON (the Speaker) said, that some of the observations which had been brought into the present debate, were of too delicate a nature to be commented upon or even repeated; he should not, therefore, follow the gentleman who spoke last, in his inquiry, how far this country was exposed to be annoyed by France in the possible, though happily not probable, event of a rupture with France? As to the words "freest and most enlightened," which were more immediately the subject of discussion, he did not object against them on the ground of fact, but he considered the expression as resolving itself into a question of decorum and delicacy, the rules of which appeared to him to be violated, in their ascribing to themselves such a superlative preference, however true, in a comparison with every other people. The amendment of the gentleman from Maryland (Mr. CHRISTIE) very much softened the terms and rendered them more palatable. Mr. KITCHELL thought we had given a very good proof that we are not the most enlightened people in the world, by this discussion; and if we declare to the world that we are, that declaration will be a still more glaring proof. It appeared to him quite unnecessary; he thought it spending a great deal of time to no purpose; it was not important enough for that waste of time, when the session was to be so short; he therefore wished the question to be put. Mr. SITGREAVES agreed that a very useless and improper latitude had been assumed in the discussion, and he thought that a few moments would not be misspent in recalling the attention of the committee to the real question before them. The assertion that we are the freest and most enlightened nation in the world was found fault with, and while some gentlemen moved to strike it out altogether, others proposed to qualify it in different ways. Mr. S. believed that, in any modification of the expression, the criticism was, in itself, extremely unimportant; and if, as some gentlemen had treated it, it was a mere question of decorum, he should feel perfectly indifferent whether it was rejected or retained. But when he heard one member deny that we are the most free, and another that we are enlightened; and most especially when he heard that the expression was contended to be improper in relation to the acts and the administration of the Government, he confessed it did appear to him to be of some consequence not to part with the expression, lest, by doing so, the House should give countenance to these objections. For his own part, he believed the proposition to be true; he conceived the word "enlightened," as applicable to political illumination; and not to our rank in arts, sciences, or literature; and he considered the sentence as equivalent to an assertion that we enjoy the most enlightened system of political freedom extant. In this view of it, he thought it literally true; and, if true, he could not discern the indecorum of declaring so on the present occasion. He was strongly impressed with the propriety of the idea which he had suggested yesterday, that this should be considered as an act of intercourse purely domestic, an expression of self-gratulation on our superior happiness, which, by the forms of society, ought not to be noticed by any other nation. We may be deemed, without too bold a figure, to be speaking in soliloquy; and to listen to what we say would be no better than eavesdropping: the indecorum would rest with those who overhear us, and not with ourselves. It could not be denied that such a belief of the superiority of our political situation ought to be cherished among us. If we did not believe it, we should take shame to ourselves, because our Government is the work of our own hands. If the belief that we are free and enlightened is valuable, the expression of it is also valuable, because it tends to preserve us so; it is a sentiment which we cannot dwell upon too much. But, he contended, the propriety of this or any other expression could not be justly estimated by considering it in the abstract--it ought to be viewed in its application and use. We are about to lose the services of the PRESIDENT, who is admitted on all hands to have been a useful and patriotic officer. The House of Representatives are desirous that he should take with him to his honorable retirement the only reward which the nature and spirit of our political institutions admit of--the approbation of his country. It will surely be admitted that we ought to give to the expression of this approbation all the value of which it is susceptible; and it is obvious, from the slightest perusal of this paragraph in the Address, that the words in question give to it all its force and energy, and that without them, it would be an unmeaning compliment. The spectacle of a nation, neither free nor enlightened, offering to its first Magistrate the tribute of approbation and applause, would neither be "novel nor interesting," since the days of history are stained with numberless instances of prostituted praise and courtly adulation; but when it is the voluntary homage of a free and enlightened people, offered with sincerity to an illustrious fellow-citizen, it is truly a precious reward for patriotic labors. Those who object to this expression, therefore, ought to move to strike out the whole paragraph. To reject the words would totally defeat the intended compliment; to qualify them would spoil it. Mr. S., therefore, wished to retain them as they were reported. Mr. THATCHER said, he did not think the object of the present question of much consequence, nor did he care much about it; however, he would wish to see the members more unanimous on the subject; he would, therefore, propose an amendment, which he thought would have some tendency towards it, which was to leave out the superlative, and let the passage read, "The spectacle of a free and enlightened nation." Mr. HENDERSON commended the ingenuity of the last motion, as he thought it would more concentrate the ideas of the members. He would vote for it. Mr. CHRISTIE's motion was then put, and negatived. Mr. THATCHER's motion was put, and passed in the affirmative. Mr. LIVINGSTON then moved to strike out the words from the next paragraph, "Wise, firm, and patriotic Administration," and insert in their place, "Your wisdom, firmness, and patriotism has been." He could not say that all the acts of the Administration had been wise and firm; but he would say, that he believed the wisdom, firmness, and patriotism of the PRESIDENT had been signally conducive to the success of the present form of government. He was willing to give him every mark of respect possible, but he believed some of his public acts of late rendered the present motion necessary. Mr. W. SMITH opposed the amendment, as he thought the gentleman who proposed it conceived the words to imply more than was meant by them--they are not meant to include every act of the Executive. He thought that the Administration in general had been wise, firm, and patriotic; that the wisdom and firmness of the PRESIDENT had been conducive to the success of the present form of government. Had not the words been put in the reported Address, he thought it would not have been of consequence whether they were ever inserted; but the difference is very great. Now they are inserted, they are made public, and, to erase them now, and substitute words in any manner deficient in sentiment to them, would be to carry censure and not respect. That the Administration of that valuable man had been wise and conducive to the good of this country, will not admit of a doubt; and for us to rob him of that honor which is his due, would be insult. And any thing short of the words in the Address he thought would not carry a proper mark of respect. Mr. GILES observed, that he thought the Administration had been very deficient in wisdom. Many gentlemen, he said, were very particularly opposed to the British Treaty and to the great emission of transferable paper. Could it then be supposed these gentlemen could, in this instance, so change their opinion? The gentleman last up had said, that because the words were in the reported Address they ought not to be struck out. He thought that the House had now as much power to act as though the committee had made no report. He thought they ought not in any way to be influenced by the report of the select committee, but act as though they had to form the Address themselves. He believed that the PRESIDENT possessed both wisdom and firmness. He was willing to compliment the PRESIDENT as much as possible in his personal character, but he could not think it applicable to his Administration. He thought the amendment proposed would meet his concurrence, and he hoped it would be agreed to. Mr. GILBERT hoped and presumed that the motion of his colleague would not obtain. He understood that the House addressed the PRESIDENT in answer to his Speech, always as a public man, and not in his private capacity. How extraordinary, then, will it appear in this House to refer only to his private conduct! It is, in substance, complimenting him as a private man, while the very words reprobate him in his public station. We are now to address him as PRESIDENT OF THE UNITED STATES. We may tell him of his wisdom and his firmness, but what of all that unless we connect it with his Administration? Mr. ISAAC SMITH.--The sin of ingratitude is worse than the sin of witchcraft; and we shall damn ourselves to everlasting fame if we withhold the mighty tribute due to the excellent man whom we pretend to address. Posterity, throughout all future generations, will cry out shame on us. Our sons will blush that their fathers were his foes. If excess were possible on this occasion, it would be a glorious fault, and worth a dozen of little, sneaking, frigid virtues. I abhor a grudging bankrupt payment, where the debtor is much more benefited than the creditor. The gentleman from Virginia misrepresents his own constituents--I am sure he does all the rest of the Union. On the present occasion we ought not to consult our own little feelings and sensibilities. We should speak with the heart and in the voice of millions, and then we should speak warm and loud. What! "Damn with faint praise:" and suppress or freeze the warm, energetic, grateful sensations of almost every honest heart from Maine to Tennessee! I will not do it! Every line shall burn! This is a left-handed way of adoring the people. Mr. DAYTON (the Speaker) said, the motion then before them was of great importance, and every man who thought favorably of the PRESIDENT's Administration should there make a stand. For, if the words were struck out, it would convey an idea to the world that it was the opinion of that House that the Administration of the PRESIDENT had neither been wise nor patriotic. Gentlemen might very well concur in the Address in its present form, who did not think that every single act of the PRESIDENT had been wise and firm, since it was his Administration in general which was referred to, and not each individual act. He hoped, therefore, the amendment offered would be decidedly opposed, and that the words proposed to be struck out would be retained. Mr. GALLATIN thought the words objected to were conceived to mean more than they really did mean by gentlemen who supported the present motion; nor could he conceive how the words "firmness and patriotism," proposed to be inserted, could apply to any thing but the public character of the PRESIDENT. On the first view of the Address, Mr. G. said, he thought with the gentlemen from New York and Virginia, and it was not without considerable hesitation that he brought himself to agree to this part of the Address. He found, however, on further examination, that they did not go so far as he at first thought they did. Had they approved of every measure of the PRESIDENT OF THE UNITED STATES, he should have voted against them. But, in the first place, he would observe, that his Administration did not include Legislative acts; so that whatever evils had arisen from the funding or banking systems were not to be charged to the PRESIDENT. They did not mean to pay compliments to themselves but to the PRESIDENT: therefore, the words in question related only to the Administration of the PRESIDENT alone, and not to those officers of State which had been supposed by some gentlemen. The first question was, then, whether that Administration had been marked with wisdom, firmness, and patriotism? And, he would briefly say, so far as related to the internal situation of the country, it had borne these marks. He did not recollect any instance where he could say here was any want of wisdom, or there of firmness or patriotism. If they proceeded to foreign affairs, a great number of members were found (he for one) who wished that certain acts had not taken place; and, if he thought, in giving approbation to this Address, he was approving of these measures, he would certainly vote against it. But, as the gentlemen from South Carolina and New Jersey (Mr. SMITH and the SPEAKER) had observed, as the approbation went to the Administration in toto, it had respect to no particular act. Nor did he believe the literal sense of the words would apply to the business of the late treaty. [He read the words.] The most clear meaning of these words related to the present Government and constitution; and the word "success" could apply to those parts of the Administration only which had had time to be matured. He did not believe that at the present period it could be said that the Treaty with Great Britain had been successful, and, therefore, could not be included within the meaning of the expression. Not meaning to pledge an approbation of that act, and not conceiving that the sentence could have such a meaning, he would vote against the proposed amendment, and for the original. The question was put on the amendment and negatived. The committee then rose, reported the Address with the amendments, when the House took them up, and having gone through them-- On the question being about to be put on the answer as amended, Mr. BLOUNT wished the yeas and nays might be taken, that posterity might see that he did not consent to the Address. The main question being put, it was resolved in the affirmative--yeas 67, nays 12, as follows: YEAS.--Fisher Ames, Theodorus Bailey, Abraham Baldwin, David Bard, Theophilus Bradbury, Nathan Bryan, Gabriel Christie, Thomas Claiborne, John Clopton, Joshua Coit, William Cooper, William Craik, James Davenport, Henry Dearborn, George Dent, George Ege, Abiel Foster, Dwight Foster, Jesse Franklin, Nathaniel Freeman, jr., Albert Gallatin, Ezekiel Gilbert, James Gillespie, Nicholas Gilman, Henry Glenn, Chauncey Goodrich, Andrew Gregg, Roger Griswold, William B. Grove, Robert Goodloe Harper, Carter B. Harrison, Thomas Hartley, Jonathan N. Havens, John Heath, Thomas Henderson, William Hindman, George Jackson, Aaron Kitchell, Samuel Lyman, James Madison, Francis Malbone, Andrew Moore, Frederick A. Muhlenberg, John Nicholas, John Page, Josiah Parker, John Patton, John Read, John Richards, Samuel Sewall, John S. Sherburne, Samuel Sitgreaves, Nathaniel Smith, Israel Smith, Isaac Smith, William Smith, Richard Sprigg, jr., William Strudwick, John Swanwick, Zephaniah Swift, George Thatcher, Mark Thompson, John E. Van Allen, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, and John Williams. NAYS.--Thomas Blount, Isaac Coles, William B. Giles, Christopher Greenup, James Holland, Andrew Jackson, Edward Livingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, and Abraham Venable. _Resolved_, That the SPEAKER, attended by the House, do present the said Address; and that Mr. AMES, Mr. MADISON, and Mr. SITGREAVES, be a committee to wait on the PRESIDENT to know when and where it will be convenient for him to receive the same. FRIDAY, December 16. Mr. AMES, from the committee appointed to wait on the PRESIDENT to know when and where he would receive the answer of this House to his Address, reported that he had appointed to receive it at his house this day at two o'clock. _Address to the President._ The SPEAKER informed the House that the hour was nearly at hand, which the PRESIDENT had appointed for receiving the Address of the House, in answer to his Speech. The members, in a body, accordingly waited upon the PRESIDENT, at his house; and the SPEAKER pronounced the following Address: "SIR: The House of Representatives have attended to your communication respecting the state of our country, with all the sensibility that the contemplation of the subject and a sense of duty can inspire. "We are gratified by the information, that measures calculated to ensure a continuance of the friendship of the Indians, and to maintain the tranquillity of the Western frontier, have been adopted; and we indulge the hope that these, by impressing the Indian tribes with more correct conceptions of the justice, as well as power of the United States, will be attended with success. "While we notice, with satisfaction, the steps that you have taken, in pursuance of the late treaties with several foreign nations, the liberation of our citizens, who were prisoners at Algiers, is a subject of peculiar felicitation. We shall cheerfully co-operate in any further measures that shall appear, on consideration, to be requisite. "We have ever concurred with you in the most sincere and uniform disposition to preserve our neutral relations inviolate; and it is, of course, with anxiety and deep regret we hear that any interruption of our harmony with the French Republic has occurred; for we feel with you, and with our constituents, the cordial and unabated wish to maintain a perfectly friendly understanding with that nation. Your endeavors to fulfil that wish, and by all honorable means to preserve peace and to restore that harmony and affection, which have heretofore so happily subsisted between the French Republic and the United States, cannot fail, therefore, to interest our attention. And while we participate in the full reliance you have expressed on the patriotism, self-respect, and fortitude of our countrymen, we cherish the pleasing hope that a mutual spirit of justice and moderation will ensure the success of your perseverance. "The various subjects of your communication will, respectively, meet with the attention that is due to their importance. "When we advert to the internal situation of the United States, we deem it equally natural and becoming to compare the present period with that immediately antecedent to the operation of the Government, and to contrast it with the calamities in which the state of war still involves several of the European nations, as the reflections deduced from both tend to justify as well as to excite a warmer admiration of our free constitution, and to exalt our minds to a more fervent and grateful sense of piety towards Almighty God for the beneficence of His providence, by which its Administration has been hitherto so remarkably distinguished. "And while we entertain a grateful conviction that your wise, firm, and patriotic Administration has been signally conducive to the success of the present form of government, we cannot forbear to express the deep sensations of regret with which we contemplate your intended retirement from office. "As no other suitable occasion may occur, we cannot suffer the present to pass without attempting to disclose some of the emotions which it cannot fail to awaken. "The gratitude and admiration of your countrymen are still drawn to the recollection of those resplendent virtues and talents which were so eminently instrumental to the achievement of the Revolution, and of which that glorious event will ever be the memorial. Your obedience to the voice of duty and your country, when you quitted reluctantly, a second time, the retreat you had chosen, and first accepted the Presidency, afforded a new proof of the devotedness of your zeal in its service, and an earnest of the patriotism and success which have characterized your Administration. As the grateful confidence of the citizens in the virtues of their Chief Magistrate has essentially contributed to that success, we persuade ourselves that the millions whom we represent, participate with us in the anxious solicitude of the present occasion. "Yet we cannot be unmindful that your moderation and magnanimity, twice displayed by retiring from your exalted stations, afford examples no less rare and instructive to mankind, than valuable to a Republic. "Although we are sensible that this event, of itself, completes the lustre of a character already conspicuously unrivalled by the coincidence of virtue, talents, success, and public estimation; yet we conceive we owe it to you, sir, and still more emphatically to ourselves and to our nation, (of the language of whose hearts we presume to think ourselves at this moment the faithful interpreters,) to express the sentiments with which it is contemplated. "The spectacle of a free and enlightened nation offering, by its Representatives, the tribute of unfeigned approbation to its first citizen, however novel and interesting it may be, derives all its lustre (a lustre which accident or enthusiasm could not bestow, and which adulation would tarnish) from the transcendent merit of which it is the voluntary testimony. "May you long enjoy that liberty which is so dear to you, and to which your name will ever be so dear; may your own virtues and a nation's prayers obtain the happiest sunshine for the decline of your days and the choicest of future blessings. For our country's sake, for the sake of Republican liberty, it is our earnest wish that your example may be the guide of your successors; and thus, after being the ornament and safeguard of the present age, become the patrimony of our descendants." To which the PRESIDENT made the following Reply: "GENTLEMEN: To a citizen whose views were unambitious, who preferred the shade and tranquillity of private life, to the splendor and solicitude of elevated stations, and whom the voice of duty and his country could alone have drawn from his chosen retreat, no reward for his public services can be so grateful as public approbation, accompanied by a consciousness that to render those services useful to that country has been his single aim: and when this approbation is expressed by the Representatives of a free and enlighted nation, the reward will admit of no addition. Receive, gentlemen, my sincere and affectionate thanks for this signal testimony that my services have been acceptable and useful to my country. The strong confidence of my fellow-citizens, while it animated all my actions, ensured their zealous co-operation, which rendered those services successful. The virtue and wisdom of my successors, joined with the patriotism and intelligence of the citizens who compose the other branches of Government, I firmly trust, will lead them to the adoption of measures which, by the beneficence of Providence, will give stability to our system of Government, add to its success, and secure to ourselves and to posterity that liberty which is to all of us so dear. "While I acknowledge, with pleasure, the sincere and uniform disposition of the House of Representatives to preserve our neutral relations inviolate, and, with them, deeply regret any degree of interruption of our good understanding with the French Republic, I beg you, gentlemen, to rest assured that my endeavors will be earnest and unceasing, by all honorable means, to preserve peace, and to restore that harmony and affection which have heretofore so happily subsisted between our two nations; and with you, I cherish the pleasing hope that a mutual spirit of justice and moderation will crown those endeavors with success. "I shall cheerfully concur in the beneficial measures which your deliberations shall mature on the various subjects demanding your attention. And while directing your labors to advance the real interests of our country, you receive its blessings; with perfect sincerity my individual wishes will be offered for your present and future felicity. "G. WASHINGTON." The members then returned to the House, and having resumed their places, the SPEAKER presented a copy of the PRESIDENT's Answer to the Clerk; which he read. MONDAY, December 19. JOHN HATHORN, from New York, and JOHN MILLEDGE, from Georgia, appeared and took their seats. A new member, to wit, ELISHA R. POTTER, from Rhode Island, in the place of BENJAMIN BOURNE, resigned, appeared, produced his credentials, was qualified, and took his seat in the House. MONDAY, December 26. _National University._ Mr. HARPER moved the order of the day, for the House to go into a committee on the establishment of a National University. The House accordingly formed itself into a committee--Mr. COIT in the chair. When the report was read, Mr. MACON said there was the word "appropriation" in the report. He did not recollect any having been made for that purpose. He wished to know what was meant? Mr. CRAIK said, authority was given for the PRESIDENT to appropriate about twenty acres of land for the erection of this building; this he supposed to be what was meant. Mr. NICHOLAS said, that some time or other the institution of a Seminary in this District may be of use, but at present, and in the manner contemplated in this report, it would not do. If carried into effect thus, it will sometime need an appropriation. We are now, said Mr. N., going into the subject, but we know not to what lengths it may carry us; we do not know where it will end. He did not think the time had arrived to incorporate a company for building a National University. It would be taking money from those districts of country which can do for themselves, and would receive no benefit from this institution. It would be inconvenient and inconsistent for people living at a considerable distance to send their children to this University; besides, he thought, the further children are from home, by being less under the eye of their parents, the more their morals would be injured. If it be a National University, it must be for the use of the nation. It will then be necessary to open funds for the purpose of its support. It is recommended by the PRESIDENT, it is true; but this is no argument why we should precipitate the business: it is the last time he will have an opportunity to address this House, and it being an object he should like to see encouraged when it was practicable, he took that opportunity to express it. We are not now in a situation to forward its establishment. It may be done at some time, but Mr. N. thought it would be many years first. That district of country would be many years before it could encourage the hope of such a plan prospering. He thought gentlemen from other parts of the Union would not say they wanted it for their youth. He thought if the House once entered into the subject, the responsibility would fall on it to keep up the institution. Mr. HARPER said, it did not appear to him that the gentleman last up had attended sufficiently to this report, for he seemed to be much mistaken as to its principle. There was nothing in it that contemplated pledging the United States to find funds for its support; nor was it the object of the report to establish a National University. He agreed with the gentleman, that we were not arrived at a period for such an institution. But gentlemen would see that the object of the commissioners was not to establish a National University or obtain money from the United States, but their direct object was, to be incorporated, so as to be enabled to receive such legacies and donations as may be presented to the institution, and hold it in trust for that purpose. The PRESIDENT had already given nineteen acres of land, and signified his intention to give fifty shares in the Potomac canal whenever there was proper authority to receive endowments. It appears that there is no authority at present. The memorial goes no further than to authorize them to receive such benefactions as may be made, and hold them in trust. How far, then, this went towards involving this House in its support, he should leave the good sense of gentlemen to judge. Mr. H. thought the amount of this memorial could not have any evil tendency, but it may have a good one; for which reason he hoped it would be agreed to. Mr. BALDWIN did not know any thing, according to his present views, which could be injurious in the report. At present it seemed favorable to him. He had two principal ideas in his mind, which made it appear so; if neither of which was cleared up otherwise, he should vote for it. The first thing he should ask was, Is such a thing desirable? And then, Is there a Seminary so near the spot contemplated, as to make it hostile in this House to encourage this University? He believed there was none that this will injure, but that an establishment like this would be very agreeable in that District. If it was desirable, who could undertake it, who encourage it, like this House? They could not do it themselves. If, then, the step is a proper one, it can never be too soon to commence it, although it may be many years before it may be wanted. The objection may be, that it would be wrong to incorporate a Literary Society; but we have frequent instances of incorporation, and nothing can prove it improper, since no pecuniary aid is required, no grant of money is asked. If it was, I should, like the gentleman before me, (Mr. NICHOLAS,) disapprove of it, but not now seeing reason to object, I shall vote for the report. Mr. CRAIK.--After the caution the committee had observed in forming their report, to prevent objections, I am sorry they should be charged with things they do not in the least merit. If the report contemplated the raising a fund for the support of this institution from the United States, there might have been some ground for gentlemen's objections; but, as there is not the most distant view of such a thing, I am surprised to hear it objected to. I did not expect it from that gentleman, (Mr. NICHOLAS.) I did not expect to hear him say, that institutions of this kind were not wanted there; it might have come better from gentlemen residing in more distant parts of the United States. If this subject was now before the House, sir, I should not be against proving, at this time, that it is the duty of the United States to establish a University, and that the sooner it was done the better. But, as this is not the case, as we are only asked to permit its encouragement, by allowing these people to receive benefactions, how can we refuse? Shall we shut the door against individual benevolence? There are appropriations already made to this institution. There is a fund now of fifty shares in the canal, which is now valuable and increasing in value daily. I think the situation for this purpose very good; and the probable increase of the city of Washington will induce many persons to benevolence for this purpose. I know of no situation more central, and believe there is no place of the kind in its neighborhood; and from an established knowledge it would be a very useful and desirable institution, shall vote for it. Mr. W. LYMAN.--As far as I can understand, the land which is now to be appropriated for this University is the property of the United States. Does not this look as though the United States are to patronize and support the establishment? If we take this step, I shall very much wonder if our next is not to be called upon to produce money. I do not expect much from the liberality of individuals; and can it be expected that people from the remote parts of the United States will send their children to this Seminary? Surely not; and consequently their money will be lost. It will be a natural source of discontent to them to pay their money merely for others to obtain the advantage. It may be very good for people thereabout, but remote parts cannot derive the least advantage from the institution. We are going quite too fast into this business, without attending to probable consequences. I think it would have been more proper, if these people had only wanted this power, for them to have applied to the State Legislature of Maryland; it would be more to their interest and duty to encourage a Seminary if one is wanted in that place. They have sufficient power vested in them to encourage all such laudable undertakings. For us to encourage this would be to do injury, instead of having a number of schools planted in various parts, they are now all to centre in one; and the people are to neglect all to support this one; as others would become very weak. I flatter myself to have as liberal sentiments on such institutions as other gentlemen, but I do sincerely think small academies are as useful as this institution for a University. The large institutions are generally out of the reach of people in general, and of the middling class in particular. These small academies have produced many eminent literary characters in the country. If it should be necessary at any time to form a Seminary for the use of that District, Congress would not refuse its encouragement; but to draw money for a National University I hope they never will agree. But gentlemen say this is not asked; true it is not at this time, but there is that in the principle that will most certainly lead to it. Mr. DAYTON (the Speaker) said, if it should ever be the policy of the United States to establish a National University, he was of opinion this was an improper time for making the decision. He did not believe the committee who made the report meant to do more than had been stated; but the effect, he said, would be what he predicted; this measure would be looked upon as an entering wedge, and they should hereafter be told they must go through with it. If gentlemen were prepared to sanction an institution of this kind they would of course do it; he was not prepared to vote for the measure, but should give it his negative. Mr. NICHOLAS said he had not been convinced by the observations of gentlemen who had spoken in favor of this report that all the mischiefs would not follow this measure which he before predicted. He inquired into the purpose of establishing a National University. The PRESIDENT had said (and the commissioners after him) it was to establish a uniformity of principles and manners throughout the Union. This, he believed, could not be effected by any institution. If, said he, you incorporate men to build a University, are you not pledging yourselves to make up any deficiency? and, as the building must be commensurate with the object, they would have an enormous empty house continually calling upon them for contributions to its support. Whatever moderation had been observed in framing this report, Mr. N. said it was like many others which came before them: it was so covered as not to show half the mischiefs which would attend it. If a plan of education was wanted for that District, let members from that part of the country say so, and he would be ready to afford them every necessary assistance; but he would not think of going into the scheme of a National University. The district of country from whence it came might stand in great need of seminaries of learning, as had been hinted by the gentleman from Maryland, (Mr. CRAIK,) but their ignorance must continue until they were sensible of their want of instruction. He believed there was no Federal quality in knowledge, and no Federal aid was necessary to the spreading of it. Every district of country was competent to provide for the education of its own citizens, and he should not give his countenance to the national plan proposed, because the expense would be enormous, and because he did not think it would be attended with any good effect, but with much evil. If a University is wanted for the use of that District, or any other part, Mr. N. said he would give it all the encouragement possible, but he could not agree to go to such great lengths--lengths which were not yet explored. Mr. R. SPRIGG considered the report before them as of a very harmless nature. The PRESIDENT, he said, had appropriated land upon which to erect the University in question. They were not called upon to sanction that appropriation. His power to give it was full and ample. The thing was done, and he had promised a future donation. The apprehensions of the gentleman from Virginia (Mr. NICHOLAS) seemed to arise from his conceiving they were about to sanction a National University, such as had been recommended by the PRESIDENT. If this were the case, although the Representative of that District, he should not give his vote in support of the measure. On the contrary, he said, they were called upon merely to authorize proper persons to receive donations for a University. What sort of institution this should be, would be for the future consideration of Congress. Mr. S. said he should always be ready to give his support to every measure which had a tendency to spread knowledge throughout the United States, as he believed the progress of knowledge and liberty would accompany each other. The gentleman from Virginia seemed to think this institution would only benefit a small circle. He did not think the State of Maryland would be much benefited by it, as they had already two good universities; but he thought it doing no more than justice to the owners of property in the Federal City that this institution should be encouraged. What was asked of them would not commit them at all for any thing further, and it would be a mean of turning the attention of the people to the support of an institution of this kind. For these reasons, he hoped the House would agree to the report. Mr. LIVINGSTON said he had thought, like the gentleman last up, that there was nothing in it but what was perfectly harmless, until, recurring to the law for establishing the permanent seat of Government, that something more might be intended than the eye could at first discover. Mr. L. said, he turned the thing a variety of ways in his mind, and could not account for some of its obscurities. If nothing was intended but a mere incorporation, why not apply to the State that could incorporate such a body? Something further seemed to be intended: public patronage was wanted to support this institution. They were called upon, at a moment's notice, to give their encouragement to this National Institution. It is true, they were called upon from very respectable authority. They were not called upon to appropriate the public funds to this purpose; but how far the commissioners are justifiable in laying out public lands for that purpose, he knew not. He had not the law itself at hand, but he was doubtful about the just disposal of it, if in this manner. This land was for public use. The use of this land was to erect buildings on for the benefit of Congress; and if these commissioners had power to appropriate it for building a National University on, they had the same power to give it or make use of it for any other purpose. Such institutions are not public, but private concerns. This, said Mr. L., I view as the effects of the resolution, were it to be adopted; but I would not be thought as in the least reflecting on the motives of the gentleman who brought it forward. I believe it will operate (as a gentleman has justly said) as an "entering-wedge;" and at some future time we shall be told, we must go on--now we have encouraged its institution, we must support it. We shall hear more about it at a future day. Gentlemen tell you, sir, that nothing is intended, but merely to permit its institution. Why cannot they obtain this power which is asked of us of the State where it is wanted? The laws there will permit it, and, most likely, it could be obtained. If this report is agreed to, the time will arrive when this institution will pretend to a just claim on this House for its support; and the reasons they will then urge will have a force which will not be easily repelled. Mr. MADISON said he was very far from considering, with some gentlemen, that this is a question of right or policy. These ideas are not comprehended in the present question. It is not whether Congress ought to interpose in behalf of this institution or not; it is whether Congress will encourage an establishment which is to be supported entirely independent of them. He did not consider it would ask a single farthing from us, nor that it would pledge Congress to endow the establishment with any support. The State of Virginia thought proper, during the war, to present the PRESIDENT with fifty shares in the Potomac canal, in consideration of his services, which he refused accepting for his own use. He has now offered to give it to this Seminary.[4] Some other individuals have likewise destined part of their land for its support, and other benefactions may be expected. The amount of this motion before the committee is whether we will grant power and security to persons to receive such donations in trust for the institution? He conceived it only in this simple point of view, and he thought if it was worthy of patronage, it ought to be from the United States. The gentleman from New York (Mr. LIVINGSTON) seems to say it is not necessary for Congress to interpose, as the laws of Maryland allow that Legislature power to do it, and they are the most proper. Congress has the sole jurisdiction over that District: it is not with the power of that Legislature. Their power in that District could only operate by virtue of a grant from the United States; although it is necessary, until that District becomes the permanent seat of Government, the laws of Maryland should be in force there. This being the situation, the commissioners applied to Congress to give them the power to receive benefactions. Another thing which gentlemen had objected to, is its being called a National University. The report does not call it so; it calls it "A University in the District of Columbia;" which, he thought, was materially different. Congress may form regulations for institutions which may be very good, and yet, not be viewed as national institutions. It was in this qualified light (for he wished not to consider it a burden on the nation) he meant to vote for the report. Mr. SPRIGGS said it had been inquired why the Legislature of Maryland could not have granted the commissioners what they now pray for? He answered that they could make no law for that District which should extend beyond the time at which the seat of Government was to be removed there. He mentioned some instances that had taken place while he was a member of that Legislature. This, he said, accounted for the application of the commissioners to Congress. On motion, the committee rose, and had leave to sit again. TUESDAY, December 27. DEMPSEY BURGES, from North Carolina, appeared, and took his seat. _National University._ The order of the day was called for on the report of the committee to whom was referred the memorial of the commissioners of the Federal City, and that part of the PRESIDENT's Speech, which referred to the establishment of a National University. The House accordingly resolved itself into a Committee of the Whole on that subject, when the resolution, reported by the select committee, having been read, no gentleman rising on the subject, the Chairman inquired if the committee were ready for the question, and on being answered in the affirmative, the question was put and negatived by a great majority. The committee rose, and the Chairman reported their disagreement with the select committee. The House then took up the subject. Mr. MURRAY rose, expressing his great surprise at the unexpected decision on the question in the committee. He was very much surprised to see the committee so changed, no opposition, and yet the report so quickly negatived; surely gentlemen must have mistaken the question. It is matter of regret such an important subject should have so little consideration. The language of the report is perfectly moderate and just. The gentleman from Virginia, yesterday, gave us to understand that this institution was to draw its support from the National Treasury; but on examining the report I can find no such idea held out or intended; and also he told us this was a National University. The gentleman's observations are grounded in mistake, or it was effected by an imagination of evils, of which there could not be the most distant apprehension. If we refer to the memorial of the commissioners we shall see they ask no money from Congress; they only ask you to erect a number of gentlemen into a corporate capacity to enable them to receive donations from those who are well disposed towards instituting a useful Seminary in that District; this is no more than they have a right to expect from Congress, and is the duty of Congress to grant. Yet the determination of the Committee of the whole House has been carried against this very desirable and reasonable request. I would again repeat that the language of the memorial is only to enable them to support a seminary of learning in that place, and not a single shilling is asked from the nation. They only want a medium to act upon--an act of incorporation. The PRESIDENT has generously signified his intention to make a valuable benefaction, not less than £5000 sterling, and the wise and good in all parts of the United States would probably follow his example, particularly in that neighborhood, if Congress would put them in a way to receive it; a building would then be begun and some advances made towards the execution of the institution, in proportion to the fund. Instead of allowing this to be the case, every possible view has been given unfavorable to the plan, and every possible supposition formed, though without grounds, which could tend to blast it. The ideas of gentlemen have been inferred that a large empty house would arise;--that it would draw from the United States funds for its support. It may be possible, but it is no way probable. Is it not more probable that these gentlemen, knowing they cannot expect national support, will keep themselves within the bounds of their funds, if they mean to carry on the institution? Certainly this seems most consistent with the wisdom and prudence of men in that capacity. Nothing is asked of the public in the report of the select committee:--nothing they have a right to ask. I therefore hope, as the request is perfectly reasonable, gentlemen will not be too hasty to oppose such a measure without due consideration. Mr. CRAIK.--I must confess I feel as much surprised as my colleague on the decision which has just been given in the Committee of the Whole. Some gentlemen who opposed the report yesterday conceived there was some secret poison lurking within it--some dangerous principle not to be discovered on its face, which would some time produce baneful influences--this has been insinuated though not directly said. If so it must come there by accident, or of itself, which those gentlemen must allow if they will give themselves the trouble to examine the true principle of it, and give it a just decision. When we examine the materials of which this report has been formed, viz: the PRESIDENT's communication on this subject in his Speech, and the memorial of the commissioners;--we should be led by those gentlemen to believe, that this, which is the groundwork of the report, is connected to convey something which may extend further than it seems to carry its object; this perhaps is the secret poison hinted at. Were I in the situation of the PRESIDENT, I am free to confess, had I studied my own feelings and the great use of the institution, I should have recommended it. It has been justly said, that the PRESIDENT, from the impulsive importance of it, has taken this opportunity--this last opportunity to recommend it. He has recommended it with earnestness; which gives an additional proof of his sincere regard for the welfare of his country. I hope this will not be conceived in favor of the idea suggested. The commissioners seemed to have anticipated the objections which have been made to a National University, and have purposely avoided inserting it in their memorial. They have cherished similar ideas which I have, of the eligibility of such an institution, but foreseeing that plan would not be approved, they have relinquished that, and only requested incorporation to enable them to act in trust for the institution. They do not call upon this House to put their hand into the Public Treasury; they seem to have possessed somewhat of the prophetic, to see the necessity of forming their memorial so little objectionable; and yet there is supposed to be danger in this simple request. Gentlemen have supposed a responsibility, a peculiar obligation to support it, would be attached to the United States, were they to give this privilege. As well might it be said that Congress, by allowing a bridge to be built, or a road to be cut, would incur the expense, or if it could not otherwise be done for want of money in the applicants, would be engaged to do it for them at the national expense. If there are objections of force in one instance they will apply to the other. If this is denied it proves that District to be wretched outcasts, being denied a request the most reasonable, natural, and just that can be contemplated. Many of the objections urged, indeed most of them, against the admission of this report, do not go so much to the exclusion of the measure, as to the danger of Legislative interference. Gentlemen say, if we move in it--if we put our hands at all to it, we pledge ourselves to effect it. If this is the situation with the people of Columbia, the year 1800 will be a woful year to them; this is an unhappy presage of the jurisdiction to be exercised on that country. If it is inexpedient for that District to have a Seminary of Learning, let gentlemen who could state it with truth, come forward and say so. If the objections of gentlemen are not grounded on the danger of this House pledging itself to support the institution nor on the inexpediency of such a thing in that District, I am at a loss, for my soul, to conceive on what ground their objections are formed. I was surprised yesterday to hear the opposition come from the quarter it did; and am equally surprised to find such an opposition now. In my view there is a very great want of Seminaries of Learning in that District. If we take a view on the south side of the Potomac, for a considerable extent of country, there is no institution to answer any desirable purpose. There is the greatest probability of a rapid increase in the population. Is it not reasonable, then, that an institution of this kind should be established in that place? And if reasonable at all, are we to wait till the period arrives when the country is thickly inhabited before we commence a building and project the plan? I have long thought that in this young country such a thing was necessary. It should be now begun, to grow up with its growth and strengthen with its strength. We should now lay the corner-stone--the foundation to build upon. Though such a Seminary cannot be established now, it may fifty years hence; and it can never be too soon to commence a good institution. We are not called upon to travel into the fields of speculation for the purpose of finding funds to support this plan; there are funds which present themselves to view. We only want a grant to secure the benefactions in prospect. The PRESIDENT has employed a handsome benefaction for this purpose; and I much wonder that gentlemen from that part of the Union should oppose measures that would only encourage its reception. When I take a view of the extent of country which lies much in want of a Seminary, I feel surprised that such measures towards its growth should be denied. If there are any gentlemen here who oppose the advancement and growth of that District which they have taken under their wing, they should come forward and declare it; we then should have ground to account for their conduct. If we are determined to deny these people common justice, we dispirit them. There is no circumstance which can occur that will tend so much to discourage the growth of that State; if we forbear to do them this justice, we exclude them looking up for those common rights which could be enjoyed in any other Territory of the United States. I hope this House will never deny to that people, rising into existence, this small privilege. Is it a strange thing, I would ask gentlemen, for a State to grant charters? I answer, no. And for this State to be denied this privilege only to secure a fund for such an excellent institution, I believe is quite a novel idea. I hope if there are any doubts on this subject, they will lie over for future consideration; and I hope we shall be careful not to damp the attempts of that people by a conduct which could not be refused by any State in the Union; and that Congress should refuse it without assigning a sufficient reason is unprecedented. I hope it will lie over for future consideration, and not be refused so quickly. It was moved that the subject should lie over until the second Monday in January. The question for postponement was put and carried--ayes 37, noes 36. WEDNESDAY, December 28. _Relief to Savannah._ Mr. W. SMITH wished the House to resolve itself into a Committee of the Whole on the resolution, which he had the other day laid upon the table, proposing to afford some relief to the sufferers by the late fire at Savannah. For his part, he said, he could see no reasonable objection which could be made to so benevolent a proposition. A gentleman in the House had got a plan of the ruins of the city; it was, indeed, a most distressful scene. There had never occurred so calamitous an event of the kind in the United States, or which had so strong a claim upon the General Government for relief. He said they had granted assistance to the sufferers by fire at St. Domingo; and surely if it were justifiable to grant relief to foreigners in distress, it was at least equally so when the objects were our own citizens. If gentlemen had objections to the measure, he wished they would state them. The sum with which he should think of filling up the blank would not be such as to materially affect our finances. Mr. MILLEDGE said, if the unfortunate had any claim upon the Government for relief, none could have greater than the citizens of Savannah. Few houses, he said, were remaining of that city, and those few were the least valuable. Not a public building, not a place of public worship, or of public justice--all was a wide waste of ruin and desolation, such as scarcely could be conceived, and as it were impossible to describe. He hoped some relief would be afforded to distress so unexampled. Mr. COOPER said, it was a very unpleasant thing to come forward to oppose a measure of this sort; but, when they looked into different parts of the Union, and saw the losses which had been sustained at New York, Charleston, &c., it would appear only reasonable that, if relief was afforded in one case, it ought to be extended to another; and, if this resolution were agreed to, he should certainly move to have some relief afforded to New York. He hoped, however, the business would not be proceeded with. If the principle were a good one, it would bear going through with; but it would be seen this would, on the contrary, prove a dangerous one. What they did to-day, he said, should bear repeating to-morrow. If they were to make good losses by fire, there would be no occasion for insurance companies, nor any inducement to build with brick in preference to wood. He felt as much as others for the distresses of the people of Savannah, but was of opinion it was not a proper business for the interference of that House. Mr. W. SMITH agreed with the gentleman last up that this would be considered as a precedent; he agreed that they ought not to do that to-day which ought not to be done to-morrow. It might be brought forward as a principle upon which we should be bound to relieve New York or Charleston; but the question is, whether this is not a distinct case? This is a case awfully distinguishable from all others; and if a case like the present will not be often found, this House are certainly not bound to grant relief in others, though in this. He trusted such a case would not be again found to solicit relief. Charleston, he said, had experienced a great calamity by fire, but had not asked relief of that House; and it was probable if it had it would not have been granted, because its distresses are not so great. In a distressing situation like that now before us aid can be afforded by the many towards alleviating the distresses of the few. Hence arises the advantages from public contributions; and would that House, he asked, refuse their assistance? It would not be felt by the public purse. It has been said, to adopt this resolution would have a dangerous tendency, inasmuch as it would encourage a neglect of insurance. But the evil has come; the unfortunate circumstance has occurred; four-fifths of that unfortunate city has been destroyed, and their distress is great. Such a circumstance may not again happen for a century. The amazing value of £500,000 sterling damages is done; and shall we refuse to give a trifle to assist, with others, towards removing the present distressed situation of some of the unfortunate inhabitants? I trust not. It is not asked of the House to indemnify the loss of these sufferers. No, sir; it is only asked that the General Government should give the trifling sum of fifteen or twenty thousand dollars to afford these people some relief. The question was then put for the House to resolve itself into a Committee of the Whole on the subject, and lost--yeas 38, nays 39. It was then moved that the committee be discharged from the further consideration of the subject. Mr. W. LYMAN hoped the business would not be disposed of without going into a Committee of the Whole. He thought more respect was due to the feelings of the sufferers than to dispose of the subject without discussion. He hoped the committee would not, therefore, be discharged. Mr. HARTLEY trusted the committee would not be discharged. He believed the destruction of Lisbon by an earthquake did not occasion greater mischiefs than the late fire had done to Savannah. The Legislature of Pennsylvania, which had no greater power than the General Government to afford relief to these sufferers, had given $15,000. Indeed, he thought it more the province of the General Government than of State Governments to afford relief in such cases. Shall we, said he, treat the citizens of Savannah with more disrespect than the people of St. Domingo? This House then gave $10,000 or more for the relief of those people, and shall we not now have liberty to discuss the subject, whether to give or not to our own citizens? Although, he said, he would not wish to draw a precedent from English transactions, yet he would observe that their generous benevolence to the unfortunate sufferers by the earthquake at Lisbon, though only commercially acquainted was worth imitation, to whom they gave £100,000. Mr. H. was sorry gentlemen should endeavor to prevent this by bringing in the calamities in New York and Charleston. Those were only personal losses; this was a general conflagration, a catastrophe unprecedented; and he hoped, for the sake of humanity and national honor, this House would never withhold relief. Mr. SPRIGG hoped the committee would not be discharged, but that they would go into the business at an early day. He said, he had not made up his mind how far they had power to afford relief in a case like the present. There was an instance in the relief afforded to the daughters of the Count de Grasse, as well as that given to the sufferers at St. Domingo. He wished for further time to make inquiry on the subject. If there were not insuperable objections to the measure, he hoped relief would be afforded. Mr. HARPER acknowledged that it was sound policy in Government to keep a strict eye over its Treasury; but this watchfulness ought not to go to the rejection of all claims, however just and proper. He thought the tenaciousness of approaching the Treasury was carried too far in the present instance. He would ask, what was the use of society if it were not to lessen the evils of such calamities as the present, by spreading them over the whole community, instead of suffering them to fall upon the heads of a few individuals? He thought it the duty of Government to alleviate such peculiar distress as the present. It was said this would prove a dangerous precedent, and prevent necessary provisions against fire. If they were about to make good the whole of the £500,000 destroyed, there might be some ground for the alarm; but when fifteen or twenty thousand dollars only were contemplated to be given, no great danger could surely be apprehended. The fires at New York, Baltimore, and Charleston, had been mentioned; but what were the means of Savannah when compared with New York? Not as one to twenty. New York was rich enough to bear her loss, but this could not be said of Savannah, all the inhabitants of which were reduced to poverty and distress. They could not, therefore, get relief from their fellow-citizens; and to whom could they look for protection and relief with so much propriety as to the General Government? When compared to Charleston, the loss of Savannah was of ten times the magnitude as that experienced by it. The loss of Charleston was alleviated by a subscription of $30,000 from its own citizens, besides the handsome contributions which were made in other parts of the Union; but there was no property left in Georgia to afford relief to the sufferers. Suppose, said Mr. H., we were to give thirty thousand dollars towards this loss, what would it be when divided among the whole Union? And yet it would be enough to draw down countless blessings upon us from these objects of distress. He hoped, therefore, the committee would not be discharged. It was a case of peculiar and almost unprecedented affliction, such as he hoped would not again occur; and a decision in their favor would be applauded by every man, woman, and child in the Union. The question was then taken for going into a Committee of the Whole on the subject, and carried by a considerable majority, there being 45 votes for it. The House accordingly resolved itself into a Committee of the Whole, when Mr. W. SMITH said, he did not propose to fill up the blank at that time. If the resolution was agreed to, the sum could be put in when the bill came into the House. He himself should not think of proposing to fill the blank with more than 15,000 dollars. This, it was true, was but a small sum, but it would afford relief to the poorer class of sufferers, and others could not expect to receive the amount of their losses. He should move that the committee might rise and report the resolution. Mr. HARTLEY called for the reading of the act allowing relief to the sufferers by fire at St. Domingo. [It was read. It allowed 15,000 dollars for their relief, which sum was to be charged to the French Republic, and if not allowed in six months, the relief was to be stopped after that time.] Mr. MACON wished the act allowing a sum of money to the daughters of Count de Grasse to be read also. He did not think either of them in point. The sufferings of the people of Savannah were doubtless very great; no one could help feeling for them. But he wished gentlemen to put their finger upon that part of the constitution which gave that House power to afford them relief. Many other towns had suffered very considerably by fire. He believed he knew one that had suffered more than Savannah in proportion to its size: he alluded to Lexington in Virginia, as every house in the place was burnt. If the United States were to become underwriters to the whole Union, where must the line be drawn when their assistance might be claimed? Was it when three-fourths or four-fifths of a town was destroyed, or what other proportion? Insurance offices were the proper securities against fire. If the Government were to come forward in one instance, it must come forward in all, since every sufferer's claim stood upon the same footing. The sum which had been given to the sufferers at St. Domingo was to be charged to the French Republic, and that given to Count de Grasse's daughters was in consideration of their father's services. But New York had as great right to come forward and expect relief as Savannah. He felt for the sufferers in all these cases, but he felt as tenderly for the constitution; he had examined it, and it did not authorize any such grant. He should, therefore, be very unwilling to act contrary to it. Mr. RUTHERFORD said, he felt a great deal of force on what gentlemen had said. There were two circumstances which were perfectly conclusive in his mind. He saw it our duty to grant relief from humanity and from policy. Savannah was a city of a minor, helpless State; it was a very young State, yet it was a part of the Union, and as such, was as much entitled to protection as any State under such a direct misfortune; and it became Congress to alleviate their great distress. They have lost much; they have, many of them, lost their all. To say we will not assist to relieve, when almost every State in the Union is putting their shoulders to support these people's burden, is wrong. The State of Pennsylvania has done itself immortal honor in the relief it has afforded, and shall we not help to support this part of the family in their distress? This State is a branch of the great family of the Union; it would be, in my idea, extremely inconsistent to neglect them. He hoped the motion would be adopted, and he hoped it would never be said that the General Government refused to provide help in such a poignant distress occurring in one of its principal towns. Mr. HARTLEY said, that the gentleman from North Carolina (Mr. MACON) had voted against both of the bills which had been referred to. He knew no difference between the Constitution of the United States and that of Pennsylvania, yet a vote in their House had been carried unanimously. He thought the law for the relief of the sufferers of St. Domingo perfectly in point; for, notwithstanding what was said about negotiation, the distress of those people had consumed all the money before the six months were expired. If ever there was a case in which they could grant relief, this was one. The losses at New York and Charleston would bear no comparison with that of Savannah; they were rich and flourishing places, whilst Savannah was a small city of a new State, and the sufferers generally poor. He hoped, therefore, the resolution would be agreed to. Mr. MOORE said, the laws which had been adduced as precedents were not in point; for the one sum we were to have credit with the French Republic, and the other was in consideration of past services. The distress of the people of Savannah was not an object of legislation; every individual citizen could, if he pleased, show his individual humanity by subscribing to their relief; but it was not constitutional for them to afford relief from the Treasury. If, however, the principle was adopted, it should be general. Every sufferer had an equal claim. Lexington, in Virginia, contained only one hundred houses, and all except two had been destroyed by fire. He should therefore move to add Lexington to Savannah in the resolution before them; though he would observe, as he did not approve of the principle, he should vote against them both. Mr. VENABLE did not see the difference between the two cases which was so distinguishable to the gentleman last up. Because Savannah was a commercial city, its distress, according to that gentleman, was indescribable, but when a like scene was exhibited in a small town, it was no longer an object which touched his feelings. His humanity went no where but where commerce was to be found. He asked whether the United States might not as well lose revenue in the first instance, as put money into the people's pockets to pay it with? Humanity was the same every where. A person who lost his all in a village, felt the misfortune as heavily as he who had a like loss in a city, and perhaps more so, since the citizen would have a better opportunity by means of commerce of retrieving his loss. He was against the general principle, as he believed, if acted upon, it would bring such claims upon the Treasury as it would not be able to answer. Mr. MURRAY thought the gentleman from Virginia (Mr. VENABLE) carried his idea of relief too far. He had no idea that that House, or any Legislature, could undertake to make good individual misfortunes. He was of opinion that the lines which separated individual from national cases, were very observable; the one was happening every day, the other seldom occurred. When a large town is burnt down, and that town is an important Southern frontier town, it is surely a national calamity, and has a claim upon the humanity of the country. It was true, the claim was not of such a nature as to be brought into a Court of Justice, but it was a calamity in which the whole nation sympathized. It was not only a claim upon the humanity of the nation, but also upon its policy, as, by restoring it to its former situation, it would be able to bear its wonted part in contributing to the revenue of the country, and would continue to carry population, arts, and wealth to that distant part of the Union. In case of war, Savannah was a most important place. It was necessary the Union should have a town in that situation, and he could not consider any money which might now be advanced as given away, but as lent to that town, which might enable it, in a few years, to resume its former situation, whilst the withholding of it might prevent its ever rising from its present ruins. Mr. KITCHELL was opposed to the amendment and to the resolution itself. He had doubts if even they were to give the citizens 15,000 dollars, as was proposed by the gentleman from South Carolina, whether they should not, instead of service, be doing them an injury; because, if the General Government were only to give this sum, the State Legislatures would proportion their donations accordingly, and probably give much less than they would otherwise have done, if they had not had this example before them. He had doubts as to the constitutionality of the measure; he thought the constitution did not authorize them to make such use of public money; however, he thought it might be a very flexible instrument; it would bend to every situation, and every situation to that. He thought, in this instance, if we grant money, while we attempt to serve, we shall eventually injure. As to what the gentleman from Virginia says of Lexington, Mr. K. thought it had been fully relieved; however he should vote against both propositions. Mr. PAGE said, that he was sorry that his colleague had made this amendment, as he had done it with a view to defeat the original resolution. If humanity alone were to direct his vote upon this question, and if the amendment had been proposed more early and singly, he might have voted for it. But that not being the case, it, as well as motives of general policy, influenced him in favor of the original motion. He had reasons which could not apply to the amendment. He should vote against it. He was bound by order to confine himself to the single question before the committee. This is, Shall the amendment be received or not? He declared it as his opinion that the case of Lexington ought not to be connected with that of Savannah, which had been, as stated by the member from South Carolina, materially different. He was restrained by order from entering into the merits of the original resolution, but he thought that he had a right to hint at the motive of policy which would apply to the resolution, and not to the amendment. This was, that Savannah being an important place, it would be wise and politic to prevent its revival from being owing to any other aid than that of the General Government of the United States. It ought not to be under obligations to individuals, or single States, and much less to a foreign power. Mr. HARTLEY hoped the amendment would not prevail. If the loss of the people at Lexington had been greater than they could support, they would doubtless have applied to the Legislature of Virginia, but he had not heard of any such application having been made. He agreed with the gentleman last up, that the General Government ought to relieve distresses of this kind. Mr. MURRAY inquired when the fire happened at Lexington? Mr. MOORE answered, about nine months ago. He thought it was the duty of the United States first to pay the claims which were made upon them by distressed soldiers and others for past services, who were denied justice because they had passed an act of limitation. If they were to act from generosity, he said that generosity ought to be extended universally. It was a new doctrine that because a sufferer by fire did not live in a commercial city he was not equally entitled to relief with the inhabitants of a city, and that though such persons were called upon to contribute to the losses of others, they could have no redress for their own. This seemed as if favorite spots were to be selected upon which special favor was to be shown. He was opposed to all such humanity. Mr. CLAIBORNE was against the amendment, but he hoped the resolution would be agreed to. He was sorry any gentleman should propose an amendment like this, purposely to defeat a motion which would tend to relieve such sufferers as those of Georgia must be. He was not certain whether he could vote upon constitutional grounds or not. It was a sharp conflict between humanity to that suffering country and the constitution. If any case could be admissible, he thought this could; it ought to be remembered, that that part of the Union has suffered much. Georgia was a slaughter-pen during the war, besides being continually harassed by the hostile Indians. He thought 15,000 dollars would not be ill-spent, as from motives of policy it would be of more advantage to the United States from the quick return the revenue would gain. Indeed, if constitutional, he hoped the sum would be made more than proposed. These are your fellow-citizens who are suffering, and if not speedily relieved, the whole interest will be involved. If in order, he would vote that the committee rise, to enable him and, perhaps, many others, to consult whether relief could be constitutionally granted? He said he felt a great propensity to do it. The question was put on the amendment and negatived--there being only 26 in favor of it. Mr. BALDWIN said, he had doubted whether to make any observations on this motion; not that he was insensible to the calamitous situation which had been the cause of it, but from an apprehension that it might be thought he was too strongly affected by it. Though it might be disagreeable to one to give his judgment and urge his opinions, when his own relation to the question was different from that of others, yet some of the reflections might not be useless to those who were to determine it. He was sure it was not a want of disposition to relieve the unhappy sufferers that had or would draw forth an observation on this occasion, but merely doubts as to the powers of the Federal Government in money matters. The use of a written constitution, and of that provision in it which declared that no money should be drawn from the Treasury but under appropriations made by law, was very manifest from the caution which it gave in the expenditure of public money and in laying burdens on the people; yet he believed it impossible to obtain absolute directions from it in every case. The objection is, that Congress is empowered to raise money only to pay the debts and to provide for the common defence, and the other purposes, exactly as specified in the 8th section. The objection has often been made, but many laws have passed not exactly specified in that section. He mentioned the private acts before alluded to, the law for establishing light-houses, to aid navigation in the improvement of harbors, beacons, buoys, and public piers, establishing trading-houses with the Indians, and some others, to show that though the constitution was very useful in giving general directions, yet it was not capable of being administered under so rigorous and mechanical a construction as had been sometimes contended for. Mr. GILES said, if the present resolution passed it would make them answerable for all future losses by fire. The small sum of $15,000 was not of any consequence when compared with the establishment of a principle of that House acting upon generosity. He believed that neither the money nor humanity, but the establishment of the principle, was the thing aimed at. The unanimity with which a resolution had passed the Pennsylvania Legislature, was a proof that they believed they had the power to pass such a law. It was said the General Government possessed the authority. The gentleman from Georgia had said that "affairs of men" made it necessary to depart from the strict constitutional power. For his part, he did not think they ought to attend to what "the affairs of men" or what generosity and humanity required, but what the constitution and their duty required. The authority of that House, he said, was specified, beyond which they ought not to go. This was a principle not within the constitution, but opposed to it. There had, he said, been several cases introduced. That of the sufferers of St. Domingo was not a case in point. They looked for a reimbursement of the money. He believed it had been repaid. And when the daughters of the Count de Grasse had $4,000 given them, it was thought to be necessary to introduce their father's services as a consideration. His feelings, he said, were not less alive to the calls of humanity than those of other gentlemen; but, by granting the money required, they should go beyond their powers, and do more real injury than good. Mr. CLAIBORNE said, the more he heard, the more he found himself in favor of the resolution. By the discussion it had undergone, he was inclined to think it was, perhaps, reconcilable with the constitution; perhaps it was, he said, for he was not certain. The annual revenue, he said, of that place, was seventy thousand dollars to the United States, besides the great consideration of it as a frontier town. He had compared the advantages and disadvantages with respect to its relief in his own mind, and thought it would be highly consistent with policy to grant relief. It was a place which had been in great distress, and had great struggles with enemies in times past. Can it be possible to suppose that we have not power to assist in erecting that place again, and putting it upon a footing to do good to the United States by a return of her revenue? Certainly not. Would the committee be willing that Savannah should be erased from the revenue? Are they willing to let it rest, and lose it? This is impossible. Then, surely, it becomes policy to give aid towards its re-erection. Unless the people do receive some aid, it will be a long time before seventy thousand dollars will be again produced from the revenue of that place. The committee then rose and reported their disagreement, when the House took it up. The question was then taken, and the yeas and nays demanded, "that the House do agree with the Committee of the whole House in their disagreement to the motion," and resolved in the affirmative--yeas 55, nays 24, as follows: YEAS.--Theodorus Bailey, David Bard, Thomas Blount, Theophilus Bradbury, Richard Brent, Samuel J. Cabell, Gabriel Christie, John Clopton, Joshua Coit, Isaac Coles, James Davenport, George Dent, Abiel Foster, Jesse Franklin, Nathaniel Freeman, jr., Ezekiel Gilbert, William B. Giles, James Gillespie, Nicholas Gilman, Chauncey Goodrich, Christopher Greenup, Roger Griswold, William B. Grove, Carter B. Harrison, John Hathorn, Jonathan N. Havens, James Holland, Andrew Jackson, George Jackson, Aaron Kitchell, John Wilkes Kittera, Edward Livingston, Samuel Lyman, William Lyman, Samuel Maclay, Nathaniel Macon, Andrew Moore, Anthony New, John Nicholas, Josiah Parker, Francis Preston, John Read, Samuel Sewall, Nathaniel Smith, Israel Smith, Richard Sprigg, jr., William Strudwick, John Swanwick, Zephaniah Swift, Richard Thomas, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, Peleg Wadsworth, and John Williams. NAYS.--Abraham Baldwin, Dempsey Burges, Thomas Claiborne, William Craik, George Ege, Dwight Foster, Henry Glenn, Andrew Gregg, Robert Goodloe Harper, Thomas Hartley, William Hindman, Francis Malbone, John Milledge, Frederick A. Muhlenberg, William Vans Murray, John Page, Elisha R. Potter, John Richards, Robert Rutherford, John S. Sherburne, Samuel Sitgreaves, Jeremiah Smith, Isaac Smith, and William Smith. THURSDAY, December 29. GEORGE HANCOCK, from Virginia, appeared, and took his seat. _Canadian Refugees._ Mr. WILLIAMS moved for the order of the day, that the House resolve itself into a committee on the reports of committees to whom were referred the petitions of sundry refugees from Canada and Nova Scotia. The first resolution read from the last report of the select committee on this subject, was in these words: "_Resolved_, That the prayer of the Petitioners, Joseph Green and others, from Canada, praying a bounty in lands and other pay, for services rendered in the late war with Great Britain, ought not to be granted." This resolution was agreed to. The second was thus: "_Resolved_, That a tract of land, not exceeding ---- acres, be laid off north-west of the Ohio River, beginning at the mouth of the Great Miami, and extending down the Ohio, not exceeding three times the breadth in length, be immediately appropriated to compensate the refugees from the British provinces of Canada and Nova Scotia, pursuant to the resolves of Congress of the 23d of April, 1783, and the 13th April, 1785." Mr. WILLIAMS hoped the situation of the land would not be mentioned in the resolution; there were many circumstances that would render it unnecessary and improper. Mr. HARTLEY wished to know where the land was to be, because the value of the land in different places was various; he thought they ought to have land: he would not be thought to object to the resolution. Mr. VENABLE did not think it necessary to mention at this time what land should be appropriated for this purpose. A bill would be introduced in a few days, it could then be determined. If there were objections to appropriate the land mentioned, he hoped gentlemen would then propose a spot that would suit every conveniency better. These people, he said, ought to be satisfied: it was time they were. Mr. DAYTON said, that the Chairman of the committee said there was no land near Lake Erie of that description belonging to the United States; he wished to know what foundation the assertion had? Mr. GREENUP said, the committee had made what inquiry they could on the subject, of persons well informed, who told them there was no land belonging to the United States of that description. Mr. SITGREAVES would vote for striking out the clause as it stood, not from any knowledge he had on the justice of the claims, but, if just, satisfaction should be given. The committee had not reported as to the value of land necessary to be given; the value of land was proportioned to its different qualities and location; he thought it would be as well for these people, to give them military land warrants, and let them locate by lot: this had heretofore been the method, and he thought it would be as advantageous to them as any, and avoid many difficulties with respect to the grant. Mr. MACON hoped the question would be divided; he liked the proposition of the gentleman last up, to strike out, and insert the words proposed; he therefore would wish the committee to rise, and report progress; or, if the House do not adopt the substitute, he hoped it would be recommitted. Mr. DAYTON moved to strike out the words relative to location, and substitute the following resolution: "_Resolved_, That provision ought to be made by law for granting donations of land to Canadian and Nova Scotia refugees, in conformity to the resolves of Congress of the 23d of April, 1783, and the 13th of April, 1785." This resolution was adopted. The third was-- "_Resolved_, That five hundred acres of land be granted to each refugee from Canada and Nova Scotia." This resolution was attended with three explanatory restrictions. It passed, and the Chairman read the first of these rules, which was, "that the applicant shall make proof, before some Court of record, of his actual residence in one of the provinces aforesaid, previous to the ---- day of ----." Mr. GREENUP supposed this was meant merely as the outlines of a plan to be completed when the bill was brought in; at this time it was necessary that instruction should be given to the committee that they may bring in a bill consistent with the will of the House. Mr. DAYTON objected to this, and the two following clauses. He objected also to the resolution for an indiscriminate grant of five hundred acres of land to each refugee. Some of these people would be found to deserve more and some less, in proportion to their exertion and sufferings. Some might have lost large property, or have had large families. If Mr. DAYTON had observed what the committee were doing, he would have objected to the passing of that clause. He likewise opposed the present one. This clause and the remaining two were negatived. The Committee of the Whole then rose. The Chairman reported progress. The House took up the report. The first resolution and the second, as altered in the committee, were agreed to. The question on the third resolution was then put. Mr. MACON thought that it would be exceedingly improper to grant an equal quantity to each; it ought to be entirely circumstantial. Mr. GREENUP was of the same opinion; he said some of these people had suffered more than others. The circumstances of some were such that they were in irons, in close confinement twelve or fourteen months, many of them had the warrant signed for their execution, and a variety of cruelties were exercised: these distresses required consideration. Mr. BALDWIN hoped it would be struck out; the House should not go into particulars of the quantity to be given, or the circumstances of the persons; he had seen great difficulty attending these specifications. He did not like this loose way of doing business; they need not open land offices for that purpose; some way would be found out to give the people satisfaction. Mr. WILLIAMS hoped the committee would not be restricted. The question on the third resolution was then put, and lost. A committee was then appointed of Messrs. GILMAN, WILLIAMS, and GREENUP, with instructions to bring in a bill pursuant to the resolutions as amended. _Kidnapping Negroes._ Mr. SWANWICK called the order of the day on a report of the Committee of Commerce and Manufactures, made the last session, on a memorial from the State of Delaware, respecting the kidnapping of negroes and mulattoes. The House accordingly resolved itself into a Committee of the Whole on the subject. Mr. SWANWICK said, that there was a mischievous practice in use of carrying these people away from the place of their residence, by masters of vessels, and selling them in other parts. The plan of the committee was to get instructions from the House to bring in a bill making it necessary for every master of a vessel to have a certificate of the number and situation of any negroes or mulattoes he may have on board. He hoped the measure would not at all be opposed, as it only prevented thefts in this case. Mr. COIT wished to know whether it was necessary for the United States to intermeddle with this? He wished the report had been more satisfactory, and stated the principles upon which it was formed with more precision. The evil, he doubted not, existed, but the law might create a greater evil than that it was intended to cure. It appeared to him that the laws in the several States were fully adequate to the subject without further provision; he was not ready to give a vote on it either way at present. Mr. SWANWICK said, the report was grounded on an application from the Legislature of Delaware. [Mr. S. here read the memorial from that State to Congress.] The practice, he said, was very injurious and dangerous to that State, and he hoped a remedy would be attempted, as it was in the power of Congress to provide one by this method; some of the States had made an attempt to remedy this evil, but their laws were broken with impunity. If the resolution of the committee passed, he should move that the committee bring in a bill in pursuance thereto. Mr. SWANWICK said, the laws of the different States forbade the stealing of negroes; but they had no remedy that would take effect out of their own State: and although each had effect in their own State, yet they had no power on the water. The intention of the present measure was to oblige masters of vessels, when they cleared out of any ports in the Delaware, when they took any negro or mulatto on board, to have a certificate of their being free. The situation of the State of Delaware, communicating with both the Delaware and Chesapeake, was, in this respect, particularly exposed to insult and injury; but this remedy, he thought, would be effectual. The gentleman last up wished the committee to rise, in order to recommit it: he should vote for it if the gentleman was willing to add, "to bring in a bill." The gentleman was in the committee, if he had stated his objections there, it might have saved time. Mr. MURRAY wished to know what was fully meant by the idea of preventing kidnapping. He confessed he did not rightly understand the meaning of the word. Was the intention of the committee to have reference to the taking of free negroes and selling them as slaves, or the taking slaves to make them free? Mr. SWANWICK said it was intended to prevent both evils. It was intended to prevent their being stolen from their masters; and, also, to prevent the power of the master taking them to the other States to sell them. This measure, he thought, would prevent both. The State of Maryland had taken measures to prevent it themselves; they had made it a heavy penalty to take a negro out of the State; but that is not effectual to prevent the evil now complained of. This was meant to prevent the practice of examining ships before they sailed and when they arrived. Mr. W. SMITH wished the committee to rise; not with a view of recommitting the report, but to get rid of the business altogether. The subject, he said, involved many serious questions; it required very serious consideration, and he wished it had never come up. It was a question with him how far Congress had a right to meddle with it at all. He felt alarmed on the subject as brought from that State. He considered it as a kind of entering-wedge, as a gentleman had lately said, on another occasion. It was altogether a municipal regulation, and not at all connected with trade or commerce, and therefore ought to be left to the State Legislatures to settle. He did not think the constitution allowed that House to act in it. Gentlemen had said, that the laws of the States took no effect on the waters. This, he thought, was founded on a mistake. The laws of the States could prevent robbery on water as well as on land, if within the jurisdiction of the United States. He hoped the committee would rise, and dismiss the subject. Mr. ISAAC SMITH thought the gentleman knew not the proper meaning of the report. It was not to make a law against stealing merely, but against its being done successfully; many instances, he said, had occurred, where they had been hid many days on board the ships and taken away in the night to the West Indies, and other parts of the world to sell them. It was impossible that the existing laws of the States should prevent this fraudulent practice: the intent of this law was to prevent this practice; by being examined, and forced to take certificates along with them, it could not be easily done. The particulars of the remedy would be more readily seen when the bill was brought in; it would explain itself; it then might be modified, altered, or rejected altogether. He thought it could give no offence or cause of alarm to any gentleman; and he was sure it was no way contrary to the constitution. Mr. MACON wished the committee to rise, and not have leave to sit again. He began to see more of the impropriety of the measure than before, and for the same reasons as the gentleman from South Carolina, (Mr. SMITH.) Mr. SWANWICK said, this House had ascertained a certain proof, by which our seamen are known, by giving them a certificate of their citizenship, specifying their person and freedom, which had operated against impressment: and was it not equally necessary, and would it not be equally competent, to protect a man from injuries to which his color has exposed him? Our unfortunate negroes and mulattoes are exposed by their color to much insult. In some places, he said, they were so exposed, that color alone was evidence of slavery. He would not enter into the question, whether all ought to be free, because it was not immediately before the House; but if these people were black or white, if free, they ought to be protected in the enjoyment of their freedom, not only by State Legislatures but by the General Government. Mr. MURRAY did not expect to have raised the sensibility of the gentleman last up. It really arose from his ignorance, he said. He wished to know the origin of the matter; he did not know whether it had originated in a memorial, or whether it came from the humanity of some patriotic member, unsolicited. Great and manifold evils did exist in this point; he meant to make a motion on the subject, as Maryland felt heavily from the practice. He confessed he was not sufficiently acquainted with the English language to know the proper meaning of the word _kidnapping_; he therefore wished to know if it extended to the object he had in view. He declared he did not wish to encourage the harboring of negroes; far from it; he wished to prevent it. He did not think the law extended far enough on that point; at present, negroes, through the influence of their own minds, or the insinuations of others, or both, frequently leave their masters, and are harbored by other persons. The law takes no notice of this, except it can be proved that the negro is some person's property, and has absconded: this is very difficult to prove; therefore great evils attend its lenity. 'Tis true, if it can be proved that the negro has absconded and was harbored, there was a very heavy penalty inflicted; but, he said, this was difficult to prove. This, he owned, was his _insinuation_, as the gentleman termed it; and upon this subject he meant to claim the attention of the House. This evil, he said, might arise from the false philosophy and misplaced philanthropy of the advocates of emancipation. He was ever willing to give the question a fair trial, and thought himself bound to thank the gentleman for his extreme benevolence in advocating it. Mr. SWANWICK, to satisfy the gentleman from Maryland, told him, that the subject came before the House from the State of Delaware. Mr. W. SMITH said, he did not know how far the committee should go, he should not vote for the matter to go into the committee. He said, it was that kind of business which, by the constitution, was to be left to the different States, he could not agree to the subject going any further. The observations of the gentleman from Pennsylvania had convinced him that that House ought not to interfere with the individual States on the subject; the interests and policy of the different States were so various, that it would be a dangerous thing to meddle with. He thought it an improper question for discussion; he conceived it would be sound policy not to touch it in that House. The gentleman had gone too far to make use of the word _emancipation_. He feared lest the use of it should spread an alarm through some of the States. It might imperceptibly lead from step to step till it ends in mischief. Mr. NICHOLAS hoped the business would not be dismissed. We, said Mr. N., who reside in the Southern States, are unfortunately possessed of such a kind of property as has a considerable odium attached to it; but, if we unfortunately hold slaves, we ought not to contribute to the making slaves of free men, but I would wish to establish them in their freedom. If we can give relief as the thing exists, let it be; by all means do it, whether it incur the pleasure or displeasure of some of the slaveholders. He hoped the subject would have full investigation. The question was then put for the committee to rise. Fifty-four members rising in the affirmative, it was carried. Mr. SITGREAVES then moved for the Committee of the Whole to be discharged from the further consideration of the report; this, he said, was in order to make way for another motion to refer it back to the committee, to report by bill or otherwise. The question was put, and the committee discharged. Mr. SWANWICK moved that the business be recommitted to the Committee of Commerce and Manufactures, to report by bill or otherwise. Mr. COIT wished the subject to be postponed for further consideration before it was sent to the committee. He had doubts as to the propriety of sending it at all. He thought it had not had that discussion a subject so important required. Mr. W. SMITH said, he believed this was the first time it was considered in the House. It had been tried in a committee but never taken up by the House, and now gentlemen wished to send it back to the committee, with instructions to bring in a bill. The Committee of Commerce and Manufactures was considerably deranged since last session, when this business came before them; many new members were added, and it required more information before it could come to the conclusion prescribed. Mr. SITGREAVES said, if any one good purpose could be derived to the House or to the gentlemen, he would not oppose it; but he was at a loss to know what good object could be attained by a delay. With respect to what had been said by the gentleman, (Mr. SMITH,) that the committee were forced to bring in a bill, he was surprised that such an idea should be formed. If that committee report a bill, this House is not even pledged to pass it. When the subject is sent to the committee with that instruction, can it be conceived that committee is forced to report a bill? There is no such thing intended nor included in the words, as either this House should be pledged to pass a bill, or that the committee should report one. The object is, that the House, through the medium of the committee, should have a plan prepared for their consideration, and the word "otherwise" leaves the committee to exercise its own discretion as to the report. The gentleman from Connecticut, with a prudence and consistency highly becoming, wishes time to think on the subject. But how is that gentleman to have foundation for his reflections until a bill is drawn? Mr. S. did not know what were the resources of that gentleman's mind, but for himself, he must own that in all the attitudes in which this subject had presented itself, he could not distinctly see the plan. One gentleman had said there was no remedy the United States could apply but what was incompatible with the laws of the individual States. Mr. S. presumed that until he saw the mode to be adopted, he could not say whether it was easy or difficult. On the whole, he thought to postpone the subject could answer no good end, while it might delay the object, and do injury. Mr. COIT said, very probably the resources of his mind may not be equal to that gentleman's, he therefore wished the subject to be delayed that he might have time to get into the knowledge of the business. Mr. COIT'S motion for postponement was then put and carried--yeas 46, nays 30. _Hugh Lawson White._ Mr. BLOUNT then called for the order of the day on the report of the Secretary of War on the petition of Hugh Lawson White, a soldier under General Sevier, against the Indians. The House accordingly resolved itself into a Committee of the Whole. The following report from the Committee of Claims was then read: That the claim set forth in the said petition, is intended to establish a principle that will apply to the whole of the militia which were called out under Brigadier General Sevier, in 1793, to act offensively against certain Indians south-west of the Ohio. That the expedition against these Indians, as appears from the muster-rolls, comprehended a period of above five months, or from the 22d July to 31st December, 1793. That it was undertaken without authority derived from the President, under the laws of the United States, and for the avowed purpose of carrying the war into the Cherokee country. That the tenor of the instructions from the Department of War to the Governor of the South-western Territory forbade offensive operations. Having given these facts, it may be proper to add, that it appears, by a recurrence to official papers, that the Indians had greatly perplexed and harassed by thefts and murders, the frontier inhabitants of Tennessee; and previous to the service, for which compensation is demanded, had shown themselves in considerable force, and killed at two stations (one of them within seven miles of Knoxville) fifteen persons, including women and children: that it must rest with Congress to judge how far these aggressions of Indians, and such other circumstances as can be adduced to the parties, constitute a case of imminent danger, or the expedition a just and necessary measure. Mr. A. JACKSON[5] said, by a recurrence to the papers just read, he doubted not it would appear evident, that the measures pursued on the occasion alluded to were both just and necessary. When it was seen that war was waged upon the State, that the knife and the tomahawk were held over the heads of women and children, that peaceable citizens were murdered, it was time to make resistance. Some of the assertions of the Secretary at War, he said, were not founded in fact; particularly with respect to the expedition being undertaken for the avowed purpose of carrying the war into the Cherokee country; indeed they were contradicted by a reference to General Smith's letter to the Secretary of War. He trusted it would not be presuming too much, when he said, from being an inhabitant of the country, he had some knowledge of this business. From June to the end of October, he said, the militia acted entirely on the defensive, when twelve hundred Indians came upon them and carried their station, and threatened to carry the seat of Government. In such a state, said Mr. J., would the Secretary (upon whom the Executive power rested, in the absence of the Governor) have been justified, had he not adopted the measure he did of pursuing the enemy? He believed he would not; that the expedition was just and necessary, and that, therefore, the claim of Mr. White ought to be granted. He therefore proposed a resolution to the following effect: "_Resolved_, That General Sevier's expedition into the Cherokee Nation, in the year 1793, was a just and necessary measure, and that provision ought to be made by law for paying the expenses thereof." Mr. HARPER said, this appeared to be a subject of considerable importance; he hoped the resolution would, for the present, lie on the table. He therefore moved that the committee rise and ask leave to sit again. Mr. COIT said, the report wanted some more preparation before it should have come before the House; he would therefore move that it be referred to the Committee of Claims; he knew of no reason against this reference, as many reports from Heads of Departments had been so referred. Mr. BLOUNT hoped the motion would not prevail. The expedient of referring it to the Secretary at War was resorted to, when it first came before the House. He hoped now it would not be deferred, but decided on. He thought the Committee of Claims, from having once had it before the House, knew as much of the case as they could know, and perhaps all was included in this report. Mr. D. FOSTER made the same observations in effect as Mr. BLOUNT. Mr. COIT said, gentlemen had not given a shadow of a reason why it should not be referred to that committee. Mr. JACKSON owned he was not very well acquainted with the rules of the House, but from the best idea he could form, it was a very circuitous way of doing business. Why now refer it to the Committee of Claims, when all the facts are stated in this report, he knew not. If this was the usual mode of doing business, he hoped it would not be referred. Mr. W. LYMAN thought, the time it was under consideration before, when referred to the Secretary at War, was the time to have thought of referring it to that committee; but now it was too late; now the House had a report before it. It appeared to him a mere formality. It looks like throwing the business out. He had not made up his mind which way he should vote, but he thought one report was sufficient; he, therefore, hoped it would come under consideration. Mr. BLOUNT said, when he first presented the petition, he moved it to be referred to the Committee of Claims; it was then rejected, and sent to the Secretary at War. The Committee rose, and obtained leave to sit again. FRIDAY, December 30. _The Chickasaw Claims._ ALEXANDER D. ORR, from Kentucky, appeared, and took his seat. Mr. ANDREW JACKSON presented a petition of George Colbert, one of the chiefs and warriors of the Chickasaw nation of Indians, complaining of a non-performance of stipulations entered into in certain _talks_ held with Governor Blount and other agents of the United States, in which they agreed in defensive support of each other's rights; that their nation was invaded by the red people, (the Creeks,) when they applied, according to treaty, for aid; that their brother, James Robertson, said he had no orders to send them any assistance; and that he must first have orders from their father the PRESIDENT OF THE UNITED STATES. However, a detachment of volunteers under the command of Colonel Mansker, came to their aid. He asked compensation for supplies furnished to that detachment during sixty days. He said he had applied to his beloved friend the Secretary at War, who told him that Congress had set apart no money out of which it could be paid; he, therefore, applied to Congress for relief. This petition was referred to the Committee of Claims. _Hugh Lawson White._ The House again resolved itself into a Committee of the Whole on the petition of Hugh Lawson White. The resolution of Mr. ANDREW JACKSON having been read, Mr. COIT called for the reading of the petition upon which the report was founded. It was read. Mr. A. JACKSON said, the rations found for the troops on this expedition had already been paid for by the Secretary of War, and he could see no reasonable objection to the payment of the whole expense attending the expedition. As the troops were called out by a superior officer, they had no right to doubt his authority. Were a contrary doctrine admitted, it would strike at the very root of subordination. It would be saying to soldiers, "Before you obey the command of your superior officer, you have a right to inquire into the legality of the service upon which you are about to be employed, and, until you are satisfied, you may refuse to take the field." This, he believed, was a principle which could not be acted upon. General Sevier, Mr. J. said, was bound to obey the orders he received to undertake the expedition. The officers under him were also obliged to obey him. They went with full confidence that the United States would pay them, believing that they had appointed such officers as would not call them into the field without proper authority. If even the expedition had been unconstitutional (which he was far from believing), it ought not to affect the soldier, since he had no choice in the business, being obliged to obey his superior. Indeed, as the provisions had been paid for, and as the ration and pay-rolls were always considered a check upon each other, he hoped no objection would be made to the resolution which he had moved. Mr. COIT said, he had called for the reading of the petition, because he could not see the connection between it and the resolution under consideration. The petition prayed for recompense for the services of the petitioner, and the men under his command, and the proper resolution would be that the prayer of it ought or might not be granted; but, instead of this, the resolution before them went to the whole troops employed in General Sevier's expedition. Mr. A. JACKSON said, by referring to the report it would be seen that the Secretary of War had stated, that to allow the prayer of this petition, would be to establish a principle that would apply to the whole of the militia in that expedition. If this petitioner's claim was a just one therefore, the present decision ought to go to the whole, as it was unnecessary for every soldier employed in that expedition, to apply personally to that House for compensation. Mr. RUTHERFORD observed, that the gentleman from Tennessee had set the matter in so fair a light that it was not necessary to say much more on the subject; but, as he had been acquainted with the frontier from his infancy, he would just give it as his opinion, that the expedition was a necessary one, and that the expense ought immediately to be paid. He hoped, therefore, the resolution would be agreed to unanimously. Mr. HARPER was not prepared to say, without more information than he had on the subject, that the measure was just and necessary, or the contrary. He felt disposed to think favorably of the expedition; but he thought the House should have further information before it came to any resolution on the subject. They had, it was true, a letter from General Smith, the then Secretary, but he thought this was not sufficient. He thought it would be better to refer the report and other papers to a select committee, with instructions to inquire into the necessity and propriety of the expedition, and report thereon. He hoped, therefore, the present resolution would be disagreed to, and the committee would rise. He would then bring forward a resolution to that effect. The Secretary of War, he said, had not gone fully into the subject; he had given them copies of two letters, but not his opinion. He did not think that an expedition of so important a nature, and which must involve in it a very heavy expense, should be decided upon without further information. Mr. CRAIK agreed in sentiment with the gentleman from South Carolina, (Mr. HARPER.) He said there was great difficulty in forming an opinion from the report itself; though the Secretary of War seemed to think the calling out of the Militia necessary, there were other expressions in the report which appeared to convey a contrary sentiment. He referred to the letter of General Smith, but mentioned that there were other papers. He could not say the expedition was not necessary; but he thought further information was desirable, and the report should be committed to a select committee, for the purpose of gaining that information. Mr. W. SMITH agreed with the two gentlemen last up, that further information was necessary. The question, he said, involved a number of important points. In the first place, a question was involved, whether, if the expeditions was necessary, as it was not authorized by law, the expense ought to be defrayed by the United States? By the report of the Secretary of War, it had appeared that Congress were well apprised of all the circumstances which rendered the expedition necessary, yet they did not think proper to authorize it. In the letter of the Secretary of War to Governor Blount, on the subject, was this passage: "If those difficulties existed while the Congress were in session, and which, it was conceived, they alone were competent to remove, they recur, in the present case, with still greater force; for all the information received at the time Congress were in session, was laid before both Houses, but no order was taken thereon, nor any authority given to the President of the United States; of consequence his authority remains in the same situation it did on the commencement of the last session. It is, indeed, a serious question to plunge the nation into a war with the Southern tribes of Indians, supported as it is said they would be." Mr. S. also read from the report "that the expedition was undertaken without authority," &c. The Secretary afterwards, indeed, stated, in his report, the disagreeable situation of the country at the time, by way of palliative; but, as Congress were possessed of these facts, and did not authorize offensive operations, it became a nice point to determine whether the expedition in question was justifiable. He would not say that such a situation of things might not occur as would justify a measure of the kind, but it was of consequence to determine whether this was such a case, which could not be done hastily. Neither had the House any information of the magnitude of the expense, whether it would be two or three hundred thousand or half a million of dollars. He should, therefore, hope the Committee of the Whole would be discharged, and that the subject would be committed to a select committee. Mr. MADISON saw no necessity for referring this subject to a select committee. If it was suggested that the official information which was before them was inaccurate, and that a more full explanation of the situation of things was necessary, there would be some ground of reference; but he did not find that this was the case. The Secretary of War stated facts, and referred to documents to prove "that the Indians had greatly perplexed and harassed, by thefts and murders, the frontier inhabitants of Tennessee, had shown themselves in considerable force, and killed at two stations fifteen persons." If this was a state of facts, and it could not be doubted, the words of the constitution on the subject were clear: "No State shall, without the consent of Congress, lay any duty on tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."[6] There could be no doubt, therefore, Mr. M. said, but this expedition came within the meaning of the constitution. In many cases, he said, it was difficult to determine betwixt offensive and defensive operations, as it was sometimes necessary, when acting on the defensive, to use an offensive measure. He had no doubt on the subject, and thought the expense of the expedition should, by all means, be paid. Mr. DAYTON (the Speaker) said, that he was not prepared to adopt the resolution which was moved by the member from Tennessee, nor even to decide finally upon it, unless he could be persuaded that the gentleman from Virginia (Mr. MADISON) was correct in saying that the report before them contained all the information which it was possible for them to obtain. He was convinced that there were other official papers and documents which would throw additional light upon the subject, and therefore, ought to be in possession of the Committee of the Whole before they took any decisive step. He alluded to the confidential communications from the PRESIDENT, in December, 1792, which gave rise to lengthy discussion, with closed galleries, upon the measures that ought to be adopted in consequence of the hostile acts and threats of those very south-western Indians, who were the objects of the expedition for which they were called upon to pay. The House of Representatives then decided that they would neither declare war against those nations of Indians, nor authorize the PRESIDENT to carry an offensive expedition into their country, if, in the recess of Congress, he should deem it proper, in consequence of their continuance in hostility. As the acts of Congress upon this very application would operate in future as a precedent and kind of commentary on that part of the constitution which limited the instances in which a State might levy troops and act offensively, without the previous assent of the General Government, they could not, Mr. D. said, be too particular in their investigation, nor too strict in their reference to dates and facts. He hoped that the Committee of the Whole, would be discharged, and the report of the Secretary of War referred to a select committee, whose duty it would be to report those facts, with their dates, which gave rise to the claim in question, and which justified, under the provision in the constitution, the raising of troops and carrying on an offensive war, without the previous consent of Congress or approbation of the PRESIDENT. Mr. NICHOLAS believed, on a reference to dates, it would be seen that these attacks of the Indians were subsequent to those which were in the knowledge of Congress at the time mentioned, as they took place while Governor Blount was at Philadelphia; and he thought no further information was necessary on the subject than the letter from General Smith to the Secretary of War, printed with the report, to prove that the expedition was both just and necessary. General Sevier's going into the Cherokee country was no proof that his operations were offensive. If other information could be obtained by referring the business to a select committee, he should have no objection; but he believed this would not be the case. He wished the letter of General Smith to be read. [It was read accordingly.] Mr. BALDWIN was not able to recollect how great a portion of the members present were in the House when this business was brought before Congress in the year 1792. His own recollection was fresh upon the subject. It was a period when they were much alarmed for our Indian frontier, North and South. The North was fortified, and it was recommended to have a legion on the South. The gentleman from South Carolina, he recollected, was opposed to the measure, and thought the Executive had determined too soon upon hostility. Mr. B. said he had at that time frequent conversations with the then Secretary of War, who informed him that he had written to the Governor of Tennessee that, in case the pressure of the Indians was so great as to require it, he must call out the militia. The Governor was well known, and sufficient confidence was placed in him that this power would not be abused. He believed the troops on the Northern frontier had not proved sufficient, and that they had already paid the expense of troops which were called in to their assistance. At this period, Mr. B. said, the danger which threatened the country was great, and it was happy for us it had been so well got over. He believed it was well that the legion for the Southern frontier was not equipped, though he at that time thought it necessary. The expense of the expedition in question, he said, would be nothing compared with that which would have taken place had the legion contemplated been equipped. Mr. B. said, he had no doubt with respect to the propriety of paying the expense of this expedition. He did not think the number of men was great, or that the charge would be very heavy. Mr. DAYTON (the Speaker) said, he was inclined to believe the attacks of the Indians, which provoked the expedition of General Sevier, were subsequent to those in the knowledge of Congress at the time the subject was under discussion. He was one of those, he said, who thought that the hostile dispositions shown by those Indians at that time called for force, and he had introduced a resolution, by means of his colleague, to that effect. It was not, therefore, that he did not think the expedition authorized, but because he had a desire to have the facts relative to the subject clearly stated, that he wished the business to be committed to a select committee. Mr. RUTHERFORD said, they were not particular about the manner of doing the business, provided it was done. He was confident the expense of the expedition ought to be paid. When the Indians were upon them, what could the Governor do? Was he to send forward to the seat of Government to be instructed what to do? No; resistance was necessary, and it was not becoming in them now to say, "You did not act perfectly regular--the thing was not exactly as it should have been." It was a critical period, he said, and if the expenses were not paid, it might have a bad effect in future. Mr. KITCHELL was in favor of the committee rising. He remembered the transactions which took place on this business, as mentioned by his colleague, (Mr. DAYTON.) He said, he was one of those who voted against the proposition of using hostile means, because he thought it possible to ward off the evil. It had been warded off; but he believed there was sufficient ground for calling out General Sevier, and he doubted not, if the business was referred to a select committee, the result would be satisfactory to those gentlemen who brought forward the business. The committee rose, and leave not being granted to sit again, on motion, the report and papers accompanying it were referred to a select committee of Messrs. A. JACKSON, J. SMITH, BLOUNT, DENT, and HARPER.[7] FRIDAY, January 20, 1797. _Direct Taxes._ The House then took up the consideration of the resolution reported yesterday by the Committee of the Whole, on the subject of further revenue. Mr. COIT wished for a division of the question, viz: that the proposition for a tax on land and that for slaves should be put separately. Mr. SWANWICK called for the yeas and nays. They were agreed to be taken. Mr. NICHOLAS thought the resolution should not be divided, but that the propositions for a tax on land and a tax on slaves should go together, as he should object to vote for the tax on land except that on slaves accompanied it. He thought the gentleman had better try the question, by moving to strike out what respected slaves. Mr. MADISON thought it would be best for the two propositions to go together; but if they did not, he did not think the embarrassments insuperable. If the question was divided, those who thought a tax on slaves necessary must vote for the first part; and if the second was rejected, there would not be wanting an opportunity of voting against the tax on land. It was necessary to observe, that it had been found expedient to associate these two taxes together, in order to do justice, and to conform to the established usage of a very large tract of country, who were entitled to some degree of attention, and to whom a tax on land, without a tax on slaves, would be very objectionable. Mr. COIT said, he could not gratify the gentleman from Virginia by varying his motion, as it would not answer the purpose he had in view. Mr. NICHOLAS supposed, if the motion was persisted in, he was at liberty to move to insert _slaves_ in the first part of the resolution. The gentleman certainly knew his own views best; or he thought it was possible to have settled the business he proposed. Mr. W. SMITH saw no difficulty on the subject. Gentlemen would vote for the first part of the resolution, in hopes that the second would pass; but if it did not pass, they would have an opportunity of voting on the main question, and thereby defeat the whole. Mr. VAN CORTLANDT would vote for both together, but not separately. Mr. GALLATIN inquired as to a point of order, whether, if the first part of the resolution was carried, and the second negatived, the question would not then be taken upon the resolution as amended? The SPEAKER answered in the affirmative. Mr. WILLIAMS said, it would save time if the question was taken upon the whole resolution together; for if several gentlemen voted against the first proposition, lest the last should not pass, the whole might in this way be defeated. He thought a vote might be safely taken upon the whole together, as no one would be bound by the vote in favor of the bill, if he should not approve of it. For his own part, he wished to see the plan, though he did not know that he should vote for it. Mr. NICHOLAS supposed there was not the difficulty mentioned by the gentleman from New York. Gentlemen would not risk the whole by voting against the first part of the resolution; since, if the second was not carried, they could afterwards reject the whole. The question was then put, that the House agree to the first resolution, viz: "_Resolved_, That there ought to be appropriated, according to the last census, on the several States, the sum of----, to be raised by the following direct taxes, viz: "A tax ad valorem, under proper regulations and exceptions, on all lands, with their improvements, including town lots, with the buildings thereon." It was resolved in the affirmative--yeas 48, nays 39. The second part of the resolution, relative to slaves, was about to be put, when Mr. GALLATIN said, before the question was taken on this division, he would just mention why this species of personal property was brought under view, whilst all other personal property was unnoticed. It was very true, that stock upon a farm in the Northern and Eastern States paid nearly as great a proportion of the taxes of those States as the negroes did those of the Southern States, and therefore it might seem somewhat wrong to introduce negroes in the one case and not cattle in the other. The reason which induced the Committee of Ways and Means to adopt this mode was, that negroes are confined to certain spots of land in the Southern States, while horses and cattle extend nearly over a whole country. And a land tax, unaccompanied with a tax on slaves, would be very unpopular in those States, as it would throw too great a burden upon farmers who did not hold slaves, and fall too lightly upon those whose property chiefly consisted of slaves. There was this difference betwixt the two species of property: A farmer in the Northern or Eastern States would not think himself aggrieved by not paying a tax upon his farming stock; but a farmer in the Southern States would think himself aggrieved if his land was taxed, whilst the slaves of the slaveholder were not taxed. It was on this account that this species of property was introduced. Mr. MURRAY was not struck with the observations of the gentleman last up, so as to say he would ultimately vote for this species of tax; at present, he should vote for a bill to be brought in; but unless he found the bill could reconcile the principle more, and do greater justice in the case than he at present conceived, he should then oppose it. He said, he considered slaves in the Southern States as laborers, and unless gentlemen could show him where laborers were taxed, he should not think it right to vote for that part of the bill. He was decidedly in favor of a land tax, but against the other part of the question. Mr. M. said, he merely mentioned this that he might not hereafter be charged with inconsistency, in case he should vote against the bill. He repeated, unless provision be made for taxing labor in other parts of the United States, he must vote against this part of the bill if brought in, because the tax would operate very unequally. Mr. HARPER said, though he was entirely opposed to the tax proposed by the resolution, and should vote against the whole, yet he thought it right that a tax on slaves should be introduced with a tax on land; for, as this direct tax was to be raised by apportionment through the States, whether the Southern States paid on slaves, or the Northern States on land, made no difference in effect; each paid in its own way; one mode was more convenient for the Northern, another for the Southern, and another for the Eastern--no injury was done by this to any other State. Mr. G. JACKSON said, he was against all species of direct taxation, but particularly on this species; and, if a tax on land was carried, he should bring forward a resolution to lay a tax upon all property vested in public securities. He wished for the yeas and nays on this question. The yeas and nays were agreed to be taken. Mr. NICHOLAS wondered to hear the observation of his colleague. He should vote for the question, though he and his constituents would be affected by it; but, in the district which that gentleman represented, there were no slaves; and it was therefore his constituents' interest to have a tax on slaves, in order to lighten that on land. Mr. G. JACKSON said, it was not so much on account of the interest of himself or constituents that he opposed this tax, but he objected to it as a capitation tax. Mr. MOORE said, the situation of the Southern States had been truly stated. In the Western parts, there were few slaves. He said, in the representation to that House, the labor of the negroes had been considered as five to three, with respect to white persons; therefore, the ability of the State to pay was considered in the same proportion. His colleague from the mountains (Mr. G. JACKSON) should consider that, if the holders of slaves were not to pay a portion of the tax imposed on the State of Virginia, it would fall very heavy upon his constituents, and those of his colleague, where few blacks were kept. He hoped, therefore, it would pass. Mr. JEREMIAH SMITH was aware that a tax on slaves would lighten the tax on land in the Southern States, and therefore he did not wonder at the Representatives from those States wishing it to take place; but, by so apportioning the tax, would not the landholders in the Southern States pay less than the landholders in parts of the Union where no slaves were kept? He believed they would. A person, for instance, in New Hampshire, holding the value of £1,000 in land, would pay a larger portion of the tax than a holder of land to the same extent in Virginia. He believed this would be unjust, and an objection to this mode of taxing the Southern States, as, though the tax would fall more equally on them, it would not be so with respect to other States. Mr. GOODRICH said, this tax was introduced into the system for the accommodation of that part of the Union where slaves were numerous. A disposition to render the plan as acceptable, in every part of the country, as it could be made, consistently with the interests of the whole, ought to prevail. But, before a tax on slaves was adopted, its operation on the Union, and its effects, as it respected different districts, should be considered. A direct tax ought to fall as equally as possible every where; that on land and houses, with their improvements, which had been agreed to, would be laid by a valuation seldom repeated--perhaps, once in ten or fifteen years. The expense of its assessment and collection would be nearly equal throughout the United States; but, with respect to a tax on slaves, there would be required frequent enumerations--at least an annual enumeration. This would be attended with considerable expense, to be defrayed, not by the particular districts, for whose benefit this species of tax was introduced, but by the United States. There was another objection. A land tax was certain--it might, and undoubtedly would, be made a lien on the real estate on which it was laid. It would, be liable to little, if any, loss. Not so with a tax on slaves. Such a tax, he apprehended, would be uncertain, exposing the revenue to considerable defalcations. If a provision could not be made to place the loss on the districts where it happened, by retaxing them it would operate unequally. He imagined a retaxation for defalcation, if it could be made, would be considered as unjust, and create discontent among the individuals who were subjected to it; and if that could not be done, the deficiency must fall on the Union, and would produce uneasiness from its partial effects. He did not know how the detail would be arranged. He had been of the number who were desirous to see the collection-law, before they decided on the resolution before them, so as to have possessed the whole subject. At present, he saw so many difficulties from incorporating this species of tax into the plan, he could not assent to it. Mr. NICHOLAS said, he did not understand the objections of the gentleman from New Hampshire, (Mr. J. SMITH.) He did not see how he could produce an equal value in land in every part of the Union. The tax, he said, would be apportioned according to the number of persons, and not according to the number of acres in any State. If the gentleman from Connecticut (Mr. GOODRICH) would rely upon his information, he might be assured that an annual enumeration of slaves would not cost so much as an assessment of land made once in ten years. With respect to the tax being uncertain, he was totally mistaken. It was the most productive tax in the Southern States. If the tax was laid wholly upon land, it would be laid on a great part which would be unsaleable, and when a report came to be made of the collection, there would be found great deficiencies; but, with respect to slaves, there would be no failure, because they were a species of property which would always find a ready sale in the Southern market. Mr. S. SMITH said, he had heard much on that floor with respect to equality of taxation. It was impossible, he said, to make taxes fall exactly equal; they will fall, in some cases, heavier than in others. He would state a case. When a tax on carriages was under consideration, they found the gentlemen from Connecticut voting without scruple, because that State paid only two or three hundred dollars annually, when Maryland paid five thousand dollars a year to that duty. There was no equality in this; yet those gentlemen winked at the disproportion. He hoped they would do so in the present case. Mr. POTTER said, if this part of the resolution was agreed to, it was to apportion a tax on the personal property of the Southern States, which, no doubt, they would be glad of; and if gentlemen from those States could point out any way by which the personal property of other States could be come at, he would agree to the present proposition; but he believed this could not be done; and, if not, he saw no reason why the personal property of those States should be made to bear a part of the proposed burden, whilst personal property in other States was suffered to go free. It was a hard case, he said, that a man who possessed three or four hundred dollars in land, should be made to pay a portion of the direct tax, whilst men of affluence, who possessed many thousands in public securities, or loaned on interest, should pay nothing. The SPEAKER reminded the House that the question was very much lost sight of; it was not whether a tax should be laid on carriages or personal property, but whether they would agree to the report of the Committee of the Whole, viz: "that a tax should be laid on slaves, with certain exceptions." Mr. HENDERSON said, he should vote against this proposition, because it was a direct tax, as he should vote against every question of that kind, until every source of indirect taxation was exhausted; and he thought this was not the case at present. Mr. CLAIBORNE said, he thought, also, that direct taxes should not be resorted to until indirect sources were exhausted; but he believed, they were now exhausted, and that direct taxes were the only means left to them of raising money. As he lived in a country which was unfortunately _cursed_ with negroes, he wished the present motion to pass, for the sake of making the tax bear, in some degree, equally in the Southern States; but if he thought with his colleague (Mr. JACKSON) that a tax on slaves bore any affinity to a capitation tax, he should also oppose it; but he had no such idea. Mr. GALLATIN said, he would just notice what had fallen from the gentleman from Connecticut (Mr. GOODRICH) which was the only thing like argument which had been used against the present proposition. As to what had been said about the quantum of tax falling on different States, or what had been said by the gentleman from Rhode Island (Mr. POTTER) with respect to the personal property of the Eastern States, he did not see how it applied to the present question. If the proposed tax was certain, and the expense of collection would not be greater than would attend the collection of the tax in other States, he did not see any objection to it. The gentleman from Connecticut had said, that the expense of an annual enumeration of slaves would be great, and that it would fall upon the United States. He would inform that gentleman and the House, that when no assessment took place, but merely an enumeration, it would be attended with no expense on the collection of the tax. The distinction which he made was, when a valuation and enumeration were both necessary, and when an enumeration alone was necessary. In the first instance, the value of the property was to be ascertained, and the tax laid accordingly; but where an enumeration was only wanted, (the tax per head, according to age, &c., having been settled,) no expense would be incurred. Mr. G. said, he spoke from experience. In Pennsylvania there was a certain tax on personal property, the taking an account of which did not increase the expense. Every three years there was an assessment of personal property, amongst which was slaves; but the enumeration was managed in this way: the collector called twice upon persons--the first time he gave them notice to pay, and took an account of their property, which, consisting of few articles, and the value being already fixed, he could tell them at the time, the amount to be paid at his next call. As to any degree of uncertainty apprehended from this tax, that might be removed by throwing the deficiency, if there should be any, upon the land. He thought, therefore, the objections which had been urged against this tax would be completely obviated. Mr. COIT allowed, that nothing was more clear than that the manner in which the Southern States paid their apportionment of the proposed burden, could make no difference to the Northern and Eastern States; but the gentleman from Pennsylvania (Mr. GALLATIN) allowed there was some weight in the objections, with respect to the assessment and collection of the tax. If he understood that gentleman, he said that the making an enumeration of slaves would make no difference in the expense. He did not know how this could be. If two objects were to do, viz: to value and assess the land, and to enumerate and value the slave, it was new doctrine to him, if these two things would not cost more than if only one had been done; or, if this business would be done for nothing, it would be one of the first things the United States had had done upon those terms. Upon the collection, there would also be an additional expense and a probability of loss; the more detail there was in the business, the greater liability to error and loss to the United States; and in proportion to this loss would these States pay less than others. Mr. HARTLEY said, he should at present vote for the proposition; but should feel himself at liberty to vote differently on the bill, if he did not approve it. Difficulties arose in his mind as to the propriety of taxing personal property in one State and not in another, by which means a bounty seemed to be given on land in the Southern States to the amount of the difference of the taxes between the land in those States, and that in other States, upon which purchasers would naturally calculate. This difficulty might probably be removed from his mind; and, therefore, in order to give the whole of the business a fair chance, he should wish the resolutions to go back to the Committee of Ways and Means, to bring in a bill. Mr. PAGE did suppose that gentlemen coming from States which were in the habit of collecting direct taxes, would have endeavored to accommodate the business to the situation and circumstances of different States, so as to make the system the most convenient to each. He did suppose that, whenever it should have been determined to enter upon direct taxation, that sums would have been apportioned to each State, and that they would have been left to themselves to have raised the money in the way which they thought most convenient. Insuperable objections, however, it seemed, had been found against this system, as appeared from the report of the Secretary of the Treasury; but it was unreasonable that the Northern States should complain that the Southern States would pay the tax with greater facility than them. They might, he said, as well complain against the richness of their soil, or the warmness of their climate. With respect to the tax falling lighter on them than on other States, those who held slaves would find it lighter, but those who had none, would not. But he thought it extraordinary that, whilst they were upbraided with holding a species of property peculiar to their country, they should also be upbraided with wishing to pay a duty upon that property. Mr. P. said, he did not see what difference it could make to other States, that they raised a part of the tax required of them from slaves. The Secretary of the Treasury had recommended this mode, the Committee of Ways and Means had reported accordingly; and they were ready to pay a tax for their slaves, in addition to the expense they were at for them already; for, it should be recollected, persons holding slaves, contribute largely to the duties collected from imposts, by the purchase of flannels and cloth, rum, molasses, &c., necessary for their food and clothing. If a person living in a State where slavery did not exist, paid something more for his land, the difference was certainly not equal to the satisfaction he must enjoy in reflecting, that his State was free from that evil. His land, on that account, would be worth three times as much as land of the same quality in the Southern States. Why, then, do gentlemen complain? The Southern States themselves might have objected to this tax; they might have doubted the constitutionality of it; indeed, he did doubt it, but he had agreed to it; and he believed there was no better way of making the tax go down in those States, than by the present measure. For his own part, Mr. P. said, he wished he lived where there was no slavery; and if he could find a climate he liked as well, he would change his situation on that account. Mr. BRENT said, it was a very extraordinary thing that gentlemen who represented States where there were no slaves, should oppose a tax on that species of property, and that the Southern States where slavery existed, should be advocating that tax. By the report of the Secretary of the Treasury, there appeared a deficiency of revenue, and in order to supply that deficiency, they had determined to have recourse to direct taxation; and, after the amount which each State ought to furnish, had been ascertained, he thought it should have been left to the different States to have raised the money from such funds as they judged best, provided they had been secure. This, he thought, would only have been liberal and proper. It had, however, been determined otherwise; but, from a knowledge that, by introducing land and slaves together, as objects of taxation, the tax would be more equally levied in the Southern States, if that plan had been adopted. And, surely, he said, it could have given no satisfaction to any other State, that, by laying a tax on land only, it should have operated in a very oppressive manner in some parts of the Southern States, and scarcely have been felt at all in other parts of those States; and yet, this would appear to be the opinion of the gentleman from New Hampshire; for, he said, if this law passed, a person possessing landed property in New Hampshire, of the value of £1,000, would pay more than a landholder to that amount in the Southern States. And was this, he asked, a subject of regret? If the State of Virginia paid the amount required of her in a manner which bore most equally upon the whole of her citizens, ought that to displease the citizens of other States? He thought not. He was of opinion, that it would be a desirable thing that the tax should be found to fall equally on the citizens of every State. Another objection, produced by the gentleman from Connecticut (Mr. GOODRICH) was that a tax on this species of property would not be so secure as a tax on land. If that gentleman had been acquainted with the situation of the Southern States, he would have known that slaves formed the most certain fund of those States; for, whilst their wide and extensive waste lands would not command any price, slaves were always ready sale. Hence it arose, that the States were not able to raise a tax on land, whilst a tax on slaves had never failed to be productive. With respect to the inconvenience or expense attending a tax on slaves, in Virginia, he said, no expense would be necessary; because it was the custom of that State to take annually, a list of their slaves, which was regularly recorded in the archives of the State. If gentlemen were, therefore, so economical that they would not expend a few of the public pence to get a list of this property, let them recur to the document he had mentioned, which might be done without expense. To those who know the situation of the Southern States, the remarks made by the gentleman from Pennsylvania (Mr. GALLATIN) must have been irresistibly impressive. Almost the whole of the lower part of the country possessed property of this kind, whilst the upper parts had scarcely any. If a tax was, therefore, imposed upon land only, the upper part of the country would be extremely aggravated, and would murmur, and they would murmur with justice. Gentlemen from the Eastern States called upon the Representatives of the Southern States to point out a mode by which they might come at the personal property of their States. But, he would ask them, if, independent of land with its improvements, they possessed any other species of property which could not be eluded? He believed they could not point it out; why, then, call upon gentlemen from the Southern States to do, what they, who certainly knew best their own resources, were unable to do? The gentlemen from the Southern States, he said, had discovered those objects which they thought best able to bear the burden; and if the Representatives of the other States were not satisfied with the tax on land, let them come forward and say what other property they have equally secure, upon which a tax may be laid. It was a phenomenon, he would again say, that the Representatives of States where slavery existed, should be contending for a tax upon slaves, and that members from States where slavery was not tolerated, were opposing it. He could not help believing that the real object of gentlemen had not been avowed. It was something hidden and unseen.[8] Mr. KITTERA said, that the opposers of this part of the resolution were the opposers of a direct tax altogether. It was observable that those upon whom the tax would fall, did not complain. It was extraordinary that the complaints should come from another quarter. As to the objections of his colleague (Mr. HARTLEY) that part of the tax being laid on slaves in the Southern States, would affect the value of land, it would make no difference whether the tax was on land or slaves, as it affected land, its operation would be the same. It was therefore no solid objection against the resolution. On the question, that the House do agree to the last part of the said resolution, in the words following, to wit: "A tax on slaves, with certain exceptions;" it was resolved in the affirmative--yeas 68, nays 23, as follows: YEAS.--Fisher Ames, Abraham Baldwin, Thomas Blount, Theophilus Bradbury, Richard Brent, Daniel Buck, Samuel J. Cabell, Gabriel Christie, Thomas Claiborne, Isaac Coles, William Cooper, William Craik, James Davenport, George Dent, George Ege, William Findlay, Abiel Foster, Jesse Franklin, Albert Gallatin, James Gillespie, Nicholas Gilman, Henry Glenn, Christopher Greenup, Andrew Gregg, William B. Grove, Wade Hampton, George Hancock, Robert Goodloe Harper, Carter B. Harrison, Thomas Hartley, John Hathorn, Jonathan N. Havens, William Hindman, James Holland, Andrew Jackson, John Wilkes Kittera, Matthew Locke, Samuel Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Frederick A. Muhlenberg, William Vans Murray, Anthony New, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, John Patton, Francis Preston, Robert Rutherford, Samuel Sewall, Samuel Sitgreaves, Israel Smith, Isaac Smith, Samuel Smith, William Smith, Richard Sprigg, Jr., William Strudwick, John Swanwick, John E. Van Allen, Philip Van Cortlandt, Abraham Venable, Peleg Wadsworth, John Williams, and Richard Winn. NAYS.--Nathan Bryan, Dempsey Burges, Joshua Coit, Samuel W. Dana, Henry Dearborn, Dwight Foster, Nathaniel Freeman, Jr., Chauncey Goodrich, Roger Griswold, Thomas Henderson, George Jackson, William Lyman, Francis Malbone, Elisha R. Potter, John Read, John S. Sherburne, Jeremiah Smith, Nathaniel Smith, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, and Joseph B. Varnum. And then the main question being taken, that the House do agree to the resolution, as reported by the Committee of the whole House, it was resolved in the affirmative--yeas 49, nays 39. _Ordered_, That the Committee of Ways and Means do prepare and bring in a bill or bills, pursuant to the said resolution. MONDAY, January 23. THOMPSON J. SKINNER, from Massachusetts, in place of THEODORE SEDGWICK, appointed a Senator of the United States, appeared, produced his credentials, was qualified, and took his seat in the House. FRIDAY, January 27. _Appropriations for 1797._ The House then resolved itself into a Committee of the Whole, on the subject of appropriations for the year 1797, when the article which relates to the contingent expenses of the two branches of the Legislature, amounting to twelve thousand dollars, being read, Mr. BALDWIN said, he had often before made the remark, (and he thought it not unseasonable now to repeat it,) that the House was too apt to be merely formal and superficial in passing on the general estimate for the year. He was sorry to observe that this item had within this year or two been considerably increased; he believed the price of wood, stationery, and other articles purchased for the session, was now much the same as in 1795, though the printer's bill might be higher; yet, as the session would be but three months, he thought the sum allowed for 1795 would be sufficient. He had always thought this charge for the contingencies of the two Houses, one of the strongest instances of that kind of loose economy which it has been complained, and perhaps with too much justice, pervades all the operations of the Federal Government--we have often been reminded that, to make an expedition into the woods to an Indian town, or to build a frigate, or to coin one hundred tons of copper, costs us a great deal more than it ever did any other Government in this country. If this is a strong instance of that style of economy, let us begin the reformation with ourselves, and not be so prodigal this year in our contingent expenses; our circumstances call on us for greater attention to economy. He was sensible the place for correcting these evils was ordinarily on passing the law authorizing the expense, and not on the appropriation for the payment of it; but this item, and many others, depended on no law--changing the sum in the estimate will control the expense. If any one will take the trouble of looking over the vouchers on which these accounts have been settled for past years, he will see that there is room for more economy. One branch of the Legislature consists of about thirty members--four thousand dollars is a great sum for the purchase of their wood, quills, and paper, and for furnishing them with copies of business under consideration. Is it possible that twelve thousand dollars can be necessary for the two Houses? The whole yearly expenses of some of the State Governments do not amount to a much greater sum--he hoped this would be struck out, and the sum which was allowed for 1795, and some preceding years, be inserted. Mr. SMITH presumed the estimate was founded upon information received from the Secretary of the Senate and the Clerk of that House. He did not conceive it would make any difference in the expenditure, whether a larger or smaller sum be appropriated; as he did not suppose the Senate or that House would print the less because a less sum was appropriated. The gentleman, he said, might, by his speech, give an idea to the public, that this would be a saving of so much money; but it would, in reality, make no difference. After a few observations from other members, the question was put and negatived--37 to 30. The committee then rose, and had leave to sit again. And the House adjourned till Monday. MONDAY, January 30. GEORGE LEONARD, from Massachusetts, appeared, and took his seat. _Manumitted Slaves._ [Mr. SWANWICK presented the petition of Jacob Nicholson and Jupiter Nicholson, Job Albertson and Thomas Pritchet, dated at Philadelphia, stating that they had been the slaves of persons in Perquimans County, North Carolina, who had manumitted them, and whose surname they took--that afterwards they had been seized by other persons and sold into slavery under a law of the State--that to escape from this bondage they had fled to Philadelphia, where they had been seized under the fugitive slave act: and pray relief from Congress.] The petition being read-- Mr. SWANWICK said, he hoped it would be referred to a select committee. Mr. BLOUNT hoped it would not even be received by the House. Agreeably to a law of the State of North Carolina, he said they were slaves, and could, of course, be seized as such. Mr. THATCHER thought the petition ought to be referred to the Committee on the Fugitive Law. He conceived the gentleman much mistaken in asserting these petitioners to be absolute slaves. They state that they were slaves, but that their masters manumitted them, and that their manumissions were sanctioned by a law of that State, but that a subsequent law of the same State, subjected them to slavery; and if even there was a law that allowed them to be taken and sold into slavery again, he could not see any propriety in refusing their petition in that House--THEY CERTAINLY (said Mr. T.) ARE FREE PEOPLE. It appeared they were taken under the fugitive act, which he thought ought not to affect them; they now came and prayed the House so to model that fugitive act, as to prevent its affecting persons of their description. He therefore saw great propriety in referring their petition to the committee appointed to amend that act in another part; they could as well consider its relation to the present case. He could not see how there would be a propriety in rejecting their petition; they had an undoubted right to petition the House, and to be heard. Mr. SWANWICK was surprised at the gentleman from North Carolina (Mr. BLOUNT) desiring to reject this petition; he could not have thought, nor could he indulge the suspicion now, that the gentleman was so far from acknowledging the rights of man, as to prevent any class of men from petitioning. If men were aggrieved and conceive they have claim to attention, petitioning was their sacred right, and that right should never suffer innovation; whether the House ought to grant, was another question. The subject of their petition had a claim to the attention of the House. They state they were freed from slavery, but that they were much injured under a law of the United States. If a law was ever made that bore hard on any class of people, Mr. S. hoped that the door would never be shut to their complaints. If the circumstance respecting these people was as they stated, their case was very hard. He animadverted on the atrocity of that reward of ten dollars offered for one of them if taken alive, but that fifty should be given if found dead, and no questions asked. Was not this, he said, encouragement to put a period to that man's existence? Horrid reward! Could gentlemen hear it and not shudder? Mr. BLOUNT said, the gentleman last up was mistaken in calling the petitioners free men; the laws of North Carolina, as he observed before, did not suffer individuals to emancipate their slaves, and he should wish to know what evidence there was to prove these men free, and except that was proved, the House had no right to attend to the petition. Mr. SITGREAVES, in answer to the gentleman last up, said he would reverse his question, and ask what evidence he had to prove that these men are not freemen; can he prove they are slaves? They have stated that a law has been made in North Carolina with a view to affect their case, and bring them again into a worse slavery than before; they want to know whether they cannot obtain relief by their application to the Government of the United States. Under these circumstances, Mr. S. wished to know why their petitions should not be taken into consideration? Was there any thing in these men, he asked, that should prevent every kind of assistance being bestowed on them? Had they not an equal right to be heard with other petitioners? He hoped the House would not only give them a hearing, but afford them all the consolation of which their unfortunate case was susceptible. If the House were obliged, through a want of power to extend to the case, to object compliance with the prayers, yet, he hoped it would be done with all due tenderness; before hearing them, he thought it would be exceedingly unjust to decide. These people may produce documents sufficient to obtain favorable attention; therefore, it was impossible before they were heard to conceive whether the House could constitutionally grant relief or not. He could see no impropriety in referring it; the object of referring a case, was to inquire into facts; thus, the committee prepared the way for discussion in the House; and why the House should refuse to deliberate and discuss this case, he knew not. Mr. HEATH was clearly convinced these people were slaves, and therefore hoped their petition would lie on the table. He would remind the gentleman that, if they undertook this business, they would soon have petitions enough of the same kind, and public business would be thereby prevented. It appeared to him to be more within the jurisdiction of the Legislature of that State; indeed, the United States had nothing to do with it. Mr. MADISON said, he should be sorry to reject any petition whatever, in which it became the business of the House to attend; but he thought this case had no claim on their attention. Yet, if it did not come within the purview of the Legislative body, he thought, it might be suffered to lie on the table. He thought it a judicial case, and could obtain its due in a Court of Appeal in that State. If they are free by the laws of North Carolina, they ought to apply to those laws, and have their privilege established. If they are slaves, the constitution gives them no hope of being heard here. A law has been passed to prevent the owners of those slaves emancipating them; it is therefore impossible that any relief can be granted. The petitioners are under the laws of North Carolina, and those laws cannot be the interpreters of the laws of the United States. Mr. SITGREAVES said, he was not prepared to deny that this petition is in the situation the gentleman from Virginia (Mr. MADISON) states; nor was he prepared to prove that it came under the power of the General Government; but he could see no kind of reason why it should not be sent to a committee who should examine the case and report whether it required Legislative interference, or whether it was a subject of judicial authority in the country whence the petitioners came. Many petitions, he said, were sent to the House, who referred them for investigation to a committee, and many had been reported as being under judicial power only, and as such been rejected here. If this underwent the same order, and should be found to be of a judicial nature, the committee would report so, and the House would honorably refuse it. This he thought the only just method. Mr. RUTHERFORD concurred with the gentleman from Pennsylvania, that this memorial ought to be referred to a committee who would report whether these people had been emancipated, according to a law of the State of North Carolina, or not. The circumstances attending this case, he said, demanded a just and full investigation, and if a law did exist either to emancipate, or send these poor people into slavery, the House would then know. He doubted not, every thing just and proper would be done, but he hoped every due respect would be paid to the petition. In short, he was assured every member in the House would wish to act consistently. This case, from the great hardships represented in the petition, applied closely to the nicest feelings of the heart, and he hoped humanity would dictate a just decision. Mr. GILBERT hoped the petition would be referred to the committee proposed; he thought it laid claim to the humanity of the House. He thought every just satisfaction should be given, and attention paid, to every class of persons who appeal for decision to the House. Mr. W. SMITH said, the practice of a former time, in a similar case, was, that the petition was sealed up and sent back to the petitioners, not being allowed even to remain on the files of the office. This method, he said, ought to be pursued with respect to the present petition. It was not a matter that claimed the attention of the Legislature of the United States. He thought it of such an improper nature, as to be surprised any gentleman would present a petition of the kind. These men are slaves, and, he thought, not entitled to attention from that body; to encourage slaves to petition the House would have a tendency to invite continual applications. Indeed it would tend to spread an alarm throughout the Southern States; it would act as an "entering-wedge," whose consequences could not be foreseen. This is a kind of property on which the House has no power to legislate. He hoped it would not be committed at all; it was not a proper subject for Legislative attention. He was not of the opinion of some gentlemen, that the House were bound to sit on every question recommended to their notice. He thought particular attention ought to be paid to the lateness of the session; if this subject were to be considered, too much time of the House would be devoured which was much wanted on important business. Mr. THATCHER said, he was in favor of referring this petition. He could see no reason which had been adduced to prove the impropriety of receiving a petition from these people. The gentleman from North Carolina (Mr. BLOUNT) is of the opinion that these people being slaves, the House ought not to pay attention to their prayer. This, he said, was quite new language--a system of conduct which he never saw the House practise, and hoped he never should. That the House should not receive a petition without an evidence to prove it was from a free man. This was a language which opposed the constitutional freedom of every State where the Declaration of Rights had been made; they all declare that every man is born equally free, and that each has an equal right to petition if aggrieved--this doctrine he never heard objected to. The gentlemen from Virginia (Mr. MADISON and Mr. HEATH) had said, it was a Judicial and not a Legislative question; they say the petition proves it, and that it ought not to be attended to. Mr. T. said, he saw no proof whatever of the impropriety of the House receiving it. There might be some Judicial question growing out of the case; but that was no reason, because it might possibly undergo a Judicial course, that the General Government were not to be petitioned. The gentleman from South Carolina (Mr. SMITH) had said, "that this was a kind of property on which the House could not legislate;" but he would answer, this was a kind of property on which they were bound to legislate. The fugitive act could prove this authority; if petitions were not to be received they would have to legislate in the dark. It appeared plainly that these men were manumitted by their masters; and because a number of men who called themselves legislators should, after they had the actual enjoyment of their liberty, come forward and say that these men should not remain at liberty, and actually authorize their recaptivity, he thought it exceedingly unjust to deprive them of the right of petitioning to have their injuries redressed. These were a set of men on whom the fugitive law had no power, and he thought they claimed protection under the power of that House, which always ought to lean towards freedom. Though they could not give freedom to slaves, yet he hoped gentlemen would never refuse to lend their aid to secure freemen in their rights against tyrannical imposition. Mr. CHRISTIE thought no part of the fugitive act operated against freedom. He thought no good could be derived from sending the petition to a committee; they could not prove whether they were slaves or not. He was much surprised any gentleman in the House should present such a petition. Mr. C. said, he was of the same opinion with the gentleman from South Carolina (Mr. SMITH) that the petition ought to be sent back again. He hoped the gentleman from Pennsylvania (Mr. SWANWICK) would never hand such another petition into the House. Mr. HOLLAND said, the gentleman from Massachusetts (Mr. THATCHER) said, "the House ought to lean towards freedom." Did he mean to set all slaves at liberty, or receive petitions from all? Sure he was, that if this was received, it would not be long before the table would be filled with similar complaints, and the House might sit for no other purpose than to hear them. It was a Judicial question, and the House ought not to pretend to determine the point; why, then, should they take up time upon it? To put an end to it he hoped, it would be ordered to lie on the table. Mr. MACON said, he had hearkened very closely to the observations of gentlemen on the subject, and could see no reason to alter his desire that it would not be committed. No man, he said, wished to encourage petitions more than himself, and no man had considered this subject more. These men could not receive any aid from the General Government; but by application to the State, justice would be done them. Trials of this kind had very frequently been brought on in all the different courts of that State, and had very often ended in the freedom of slaves; the appeal was fair, and justice was done. Mr. M. thought it a very delicate subject for the General Government to act on; he hoped it would not be committed; but he should not be sorry if the proposition of a gentleman (Mr. SMITH) was to take place, that it was to be sent back again. Mr. W. SMITH observed, that a gentleman (Mr. THATCHER) had uttered a wish to draw these people from their state of slavery to liberty. Mr. S. did not think they were sent there to take up the subject of emancipation. When subjects of this kind are brought up in the House they ought to be deprecated as dangerous. They tended to produce very uncomfortable circumstances. Mr. VARNUM said, the petitioners had received injury under a law of the United States, (the fugitive act) and not merely a law of North Carolina, and therefore, he thought, they had an undoubted right to the attention of the General Government if that act bore hard on them. They stated themselves to be freemen, and he did not see any opposition of force to convince the House they were not; surely it could not be said that color alone should designate them as slaves. If these people had been free, and yet were taken up under a law of the United States, and put into prison, then it appeared plainly the duty of the House to inquire whether that act had such an unjust tendency, and if it had, proper amendments should be made to it to prevent the like consequences in future. It required nothing more under that act than that the person suspected should be brought before a single magistrate, and evidence given that he is a slave, which evidence the magistrate could not know if distant from the State; the person may be a freeman, for it would not be easy to know whether the evidence was good, at a distance from the State; the poor man is then sent to his State in slavery. Mr. V. hoped the House would take all possible care that freemen should not be made slaves; to be deprived of liberty was more important than to be deprived of property. He could not think why gentlemen should be against having the fact examined; if it appears that they are slaves, the petition will of course be dismissed, but if it should appear they are free, and receive injury under the fugitive act, the United States ought to amend it, so that justice should be done. Mr. BLOUNT said, admitting those persons who had been taken up were sent back to North Carolina, they would then have permission to apply to any of the courts in the State for a fair trial of their plea; there are very few courts in which some negroes have not tried this cause, and obtained their liberty. He agreed with the gentleman from Massachusetts, on the freedom of these men to procure their rights; it did not appear to him that they were free; true they had been set free, but that manumission was from their masters, who had not a right to set them free without permission of the Legislature. Mr. KITCHELL could not see what objection could obtain to prevent these people being heard. The question was not now, whether they are or are not slaves, but it is on a law of the United States. They assert that this law does act injuriously to them; the question is, therefore, whether a committee shall be appointed to inquire on the improper force of this law on the case of these men; if they are freemen, he said, they ought not to be sent back from the most distant part of the United States to North Carolina, to have justice done them, but they ought to receive it from the General Government who made the law they complain of. Mr. K. said, he had not examined the force of the law on the subject, and was not prepared to decide; there could be no evil in referring it for examination; when the committee would report their opinion of the subject and gentlemen be prepared to act on it. On the question for receiving the petition being put, it was negatived--ayes 33, noes 50.[9] TUESDAY, February 7. THOMAS SPRIGG, from Maryland, appeared, and took his seat. _Increase of Salaries._ A bill was also received from the Senate for increasing the compensation of the members of the Legislature and certain officers of Government; which was read, and, on motion that it be read a second time, it was carried, 33 to 30. It was accordingly read a second time. The bill contemplates an advance of $5,000 to the present salary of the PRESIDENT OF THE UNITED STATES, and $2,000 to the VICE PRESIDENT, to commence on the 4th of March next, and continue for four years; and that the members of the Senate and House of Representatives, the Secretary of State, the Secretary of the Treasury, the Secretary of War, Attorney General, Postmaster General, Assistant Postmaster General, Comptroller of the Treasury, Auditor, Register, Commissioner of the Revenue, Accountant of the War Department, the Secretary of the Senate, the Clerk of the House of Representatives, and the principal clerks employed by them, the Sergeant-at-Arms of the House of Representatives, the Door-keepers and Assistant Door-keepers of both Houses, have an advance of 25 per cent. upon their present compensation. Mr. PARKER moved that the further consideration of this bill be postponed till the first Monday in December next. He said they had lately had the subject of augmenting the salaries of all the officers here mentioned, except the PRESIDENT and VICE PRESIDENT and themselves, under consideration; and as they had resolved to refuse an advance to others, he trusted they should also refuse it to themselves. He thought the present an improper time to go into the subject. Mr. HARTLEY wished the gentleman would consent to some day next week. He could not say he was ready to agree to the whole of the advances proposed, but he wished the subject to be taken into consideration, and perhaps by the time he had mentioned they might have some further information on the subject of our finances. Mr. MACON said, the most regular way for the gentleman from Virginia to obtain his object, would be to move to have the bill committed to a Committee of the Whole, and made the order of the day for the 4th of March. Mr. PARKER made that motion. Mr. HARTLEY hoped this motion would not be agreed to, as it was a sort of manoeuvre to get rid of the subject, which he did not approve. He would either have the bill negatived at once, made the order of some day in the present session, or postponed till the next. Mr. AMES said gentlemen had no doubt a right to govern their own votes according to their own notions of propriety. No man had a right to prescribe to another. His conscience was no rule to any other man. But he thought he was authorized to say, they neither had nor claimed a right to do a right thing in a wrong way. To agree to the motion proposed, would be an insincere way of putting a negative upon the bill. He trusted gentlemen who wished this would do it in a more direct way. The compensation of the PRESIDENT and VICE PRESIDENT could not be augmented, he said, after they had entered upon their office; and to say they would take up the subject for consideration at a time when their powers would not exist, was an evasive manner, which he approved not. It was an easy thing for gentlemen to say _no_ on the question, without taking this circuitous way of putting an end to the subject. Mr. VENABLE thought the view of his colleague would be answered as well by a postponement to the 3d of March as to the 4th, and it would be more orderly. Nor did he think this way of disposing of the business called for the censure which the gentleman from Massachusetts had thrown upon it. It was a question upon which that House had already decided by a considerable majority. No new light had been thrown upon the subject, and he thought it by no means disrespectful to postpone it. It was well known that the effect of this motion would be a postponement for the present session. This was what he wished; and if his colleague would consent to alter his motion to the 3d of March, he should not hesitate to vote for it. Mr. PARKER had no objection to the motion standing for the 3d of March, though he did not consider the motions for the first Monday in December or the 4th of March as unparliamentary. He thought the salaries of the PRESIDENT and VICE PRESIDENT high enough. The salaries of some of their public officers might at present be somewhat too low, but the time would soon come when the price of living would become lower, and then they would be fully adequate; and therefore he did not wish to see them advanced at present. Mr. BUCK was opposed to putting off the question till the time contemplated by the present motion. To get rid of the subject in such a way, would be descending from that state of independence which they ought to preserve, and would have the appearance of a slight cast upon another branch of Government. If they were prepared to meet the question, they might as well meet it now as then. To agree to the motion proposed, would show a degree of cowardice, and effectually put it out of their power to consider and determine upon the subject. The Senate, he said, had found sufficient reason to originate this bill, and he thought, if it were only out of complaisance to them, the subject should not be treated in the way proposed. It was said that this subject had already been decided, but he did not think so. There had been no general proposition for augmenting compensation. They had had the subject under view partially, but he knew there were some members (he knew of one at least) who voted against any partial advance, because they thought it should be general. This was his motive. He thought all the officers of Government were upon an equal footing, and therefore he voted against advancing the salary of one and not of another--not because he thought they were already sufficiently compensated; he did not think they were. He wished, therefore, the subject for a general augmentation to come under discussion. If he should be convinced an advance was improper, he should give it up, and should be against putting the subject off to a time when it could not be considered. Mr. HARTLEY again urged the propriety of postponing for a shorter period: he mentioned the 17th instant. Mr. MACON said he was opposed to the bill _in toto_, and he considered the motion of the gentleman from Virginia as meant to try the question. He wished it to stand for the 4th of March, as at first proposed, because, if it stood for the 3d, the subject might be called up and acted upon on the last day of the session. He should therefore renew the 4th of March, because, if there were a majority who wished the bill to be rejected, it was desirable that as little time as possible should be lost upon the subject. The question for postponing till the 4th of March was put and negatived, 46 to 45. Mr. PARKER then moved to have it postponed till the 3d of March. Mr. HENDERSON thought it more proper to postpone till the 3d than till the 4th. He was ready, he said, to meet the question, either in a direct or indirect way. He had made a calculation, and found that the advances proposed would amount to from $100,000 to $110,000. Mr. H. believed our finances were not in a state to admit of this addition to our expenses; besides, he trusted every necessary of life would soon be reduced in price, so as to render any advance of salary to our officers unnecessary. The question was put and negatived, 57 to 32. On motion of Mr. HARTLEY, Friday week was proposed and negatived, there being only 35 votes for it. Mr. GALLATIN moved that the subject should be made the order for this day. He said he had voted for postponing it till the 4th of March, with a view of getting rid of it; but since it must be considered, he wished it to be disposed of as soon as possible. Mr. SITGREAVES proposed that it be made the order of the day for Monday. The sense of the House was first taken for Monday and negatived, there being only 41 votes for it. It was then put for this day and carried, there being 58 votes for it. WEDNESDAY, February 8. _Election of President._ The SPEAKER informed the House that the hour was come at which they had appointed to meet the Senate, for the purpose of counting the votes for, and declaring the election of a PRESIDENT and VICE PRESIDENT OF THE UNITED STATES, and that the Clerk would inform the Senate they were ready to receive them. The Clerk accordingly waited upon the Senate, and the PRESIDENT and members of the Senate soon after entered and took their seats, the PRESIDENT on the right hand of the Speaker of the House of Representatives, and the members of the Senate on the same side of the Chamber; when the President of the Senate (Mr. ADAMS) thus addressed the two Houses: _Gentlemen of the Senate and of the House of Representatives_: The purpose for which we are assembled is expressed in the following resolutions. [Mr. ADAMS here read the resolutions which had been adopted by the two Houses relative to the subject.] I have received packets containing the certificates of the votes of the Electors for a President and Vice President of the United States from all the sixteen States of the Union: I have also received duplicates of the returns by post from fifteen of the States. No duplicate from the State of Kentucky is yet come to hand. It has been the practice heretofore, on similar occasions, to begin with the returns from the State at one end of the United States, and to proceed to the other; I shall therefore do the same at this time. Mr. ADAMS then took up the packet from the State of Tennessee, and after having read the superscription, broke the seal, and read the certificate of the election of the Electors. He then gave it to the Clerk of the Senate, requesting him to read the report of the Electors, which he accordingly did. All the papers were then handed to the tellers, viz: Mr. SEDGWICK, on the part of the Senate, and Messrs. SITGREAVES and PARKER on the part of the House of Representatives; and when they had noted the contents, the President of the Senate proceeded with the other States, in the following order: FOR JOHN ADAMS. North Carolina, 1 Virginia, 1 Maryland, 7 Delaware, 3 Pennsylvania, 1 New Jersey, 7 New York, 12 Connecticut, 9 Rhode Island, 4 Massachusetts, 16 Vermont, 4 New Hampshire, 6 -- 71 FOR THOMAS JEFFERSON. Tennessee, 3 Kentucky, 4 Georgia, 4 South Carolina, 8 North Carolina, 11 Virginia, 20 Maryland, 4 Pennsylvania, 14 -- 68 FOR GEORGE WASHINGTON. North Carolina, 1 Virginia, 1 -- 2 FOR THOMAS PINCKNEY. South Carolina, 8 North Carolina, 1 Virginia, 1 Maryland, 4 Delaware, 3 Pennsylvania, 2 New Jersey, 7 New York, 12 Connecticut, 4 Massachusetts, 13 Vermont, 4 -- 59 FOR AARON BURR. Tennessee, 3 Kentucky, 4 North Carolina, 6 Virginia, 1 Maryland, 3 Pennsylvania, 13 -- 30 FOR SAMUEL ADAMS. Virginia, 15 FOR OLIVER ELLSWORTH. Rhode Island, 4 Massachusetts, 1 New Hampshire, 6 -- 11 FOR SAMUEL JOHNSTON. Massachusetts, 2 FOR JAMES IREDELL. North Carolina, 3 FOR JOHN JAY. Connecticut, 5 FOR GEORGE CLINTON. Georgia, 4 Virginia, 3 -- 7 FOR CHARLES COTESWORTH PINCKNEY. North Carolina, 1 FOR JOHN HENRY. Maryland, 2 All the returns having been gone through, Mr. SEDGWICK reported that, according to order, the tellers appointed by the two Houses had performed the business assigned them, and reported the result to be as above stated. The PRESIDENT of the Senate then thus addressed the two Houses: _Gentlemen of the Senate and of the House of Representatives_: By the report which has been made to me by the tellers appointed by the two Houses to examine the votes, there are 71 votes for John Adams, 68 for Thomas Jefferson, 59 for Thomas Pinckney, 30 for Aaron Burr, 15 for Samuel Adams, 11 for Oliver Ellsworth, 7 for George Clinton, 5 for John Jay, 3 for James Iredell, 2 for George Washington, 2 for John Henry, 2 for Samuel Johnston, and 1 for Charles C. Pinckney. The whole number of votes are 138; 70 votes, therefore, make a majority; so that the person who has 71 votes, which is the highest number, is elected President, and the person who has 68 votes, which is the next highest number, is elected Vice President. The PRESIDENT of the Senate then sat down for a moment, and rising again, thus addressed the two Houses: In obedience to the Constitution and law of the United States, and to the commands of both Houses of Congress, expressed in their resolution passed in the present session, I declare that JOHN ADAMS is elected President of the United States, for four years, to commence with the fourth day of March next; and that THOMAS JEFFERSON is elected Vice President of the United States, for four years, to commence with the fourth day of March next. And may the Sovereign of the Universe, the ordainer of civil government on earth, for the preservation of liberty, justice, and peace, among men, enable both to discharge the duties of these offices conformably to the Constitution of the United States, with conscientious diligence, punctuality, and perseverance. The PRESIDENT and members of the Senate then retired, and the House came to order; when Mr. SITGREAVES made a report on the business, which was read and ordered to be entered on the journals. THURSDAY, February 9. _Election of President._ Mr. SITGREAVES, from the joint committee appointed to confer with a committee of the Senate on the subject of the election of a PRESIDENT and VICE PRESIDENT, made a further report, viz: that they had agreed with the committee of the Senate to recommend to the House of Representatives the following resolution: "_Resolved_, That the Clerk of this House be directed to give, by letter, to the Vice President elect, a notification of his election." This resolution was agreed to; but some time afterwards, Mr. PARKER (one of the committee) wished it to be rescinded, as he understood, though the committee from the Senate had concurred in this mode of notifying the VICE PRESIDENT of his election, the Senate would not agree to it, but wished to follow the mode adopted on a former occasion, viz: a message was sent from the House of Representatives to the Senate, directing that the persons elected should be notified in such a manner as they should direct. He wished, therefore, to prevent delay, the resolution might be rescinded and a different one agreed to. This motion occasioned a good deal of conversation. It was observed by the SPEAKER that the resolution was already before the Senate, (where it seemed it was not intended to be sent, as it was a distinct resolution of that House, a similar one to which was proposed for the adoption of the Senate by the joint committee.) It was at length, however, agreed to be rescinded. Immediately after which a message was received from the Senate, informing the House that they had disagreed to the resolution, and appointed a committee of conference. The House accordingly took up the message, and also agreed to appoint a committee of conference. _Compensation to Public Officers._ Mr. PARKER then renewed his motion, and the House resolved itself into a Committee of the Whole on the bill respecting compensations, Mr. MUHLENBERG in the chair; when Mr. PARKER moved to strike out the first clause. He thought it necessary to make some additional allowance to the PRESIDENT, but he would do it in a different way from that proposed. When the present PRESIDENT came into office, he said, he had a quantity of furniture presented him, which might now be nearly worn out, and be of little value. It might be proper, therefore, to purchase new furniture for the gentleman just elected. It would be also during the period of the present Presidency that Government would remove to the Federal City, which would be attended with a good deal of expense to the PRESIDENT. He should wish, therefore, that a provision should be made for defraying that expense, and also for the purchasing of new furniture, but he should be opposed to the making of any addition to the salary at present. Mr. HARTLEY spoke in favor of retaining the clause. Mr. R. SPRIGG said he should vote against the proposed advance of salary, and could not consent to any other mode of augmenting the present compensation allowed to the PRESIDENT. He could by no means agree to the plan proposed by the gentleman from Virginia; for, if they were to renew the furniture of the PRESIDENT every four or eight years, it would be found a pretty expensive business. That gentleman had also mentioned the removal of the Government, as taking place during the next Presidency; but, he said, the new election would happen about the time of removing the Government, and provision for paying that expense might be made at that time. He thought the salaries were already sufficiently high, and that it would be with difficulty that money was found to pay the present expenses of Government. Mr. WILLIAMS was of opinion, on the score of economy, that it would be better to advance the compensation of the PRESIDENT in the way proposed by the present bill, and let him purchase his own furniture, than to purchase new furniture, which, perhaps, when the Government was removed, would not be suitable for his house in the Federal City. Mr. W. said he was one of the committee on the subject of compensation, and they endeavored to ascertain whether the twenty-five thousand dollars allowed to the PRESIDENT were an adequate compensation. It was generally believed it was not. They ought, he said, to enable their First Magistrate to live in a style becoming his situation. All their Executive officers should receive such salaries as would enable them to see company agreeably to their rank, otherwise the respectability attached to those offices would suffer greatly in the public opinion. He hoped, therefore, the section would not be struck out. Mr. BUCK said, as the motion now made was to try the principle, it would be well to go into an examination of the subject. He said he had never been a champion for raising salaries, or a stickler for lowering them; but, as the subject was brought before them, he should cheerfully declare his sentiments upon it. He conceived the true question to be, whether it was right and just that they should augment the salaries of the officers of Government and the members of the Legislature, or whether the present compensations were just and adequate to the sacrifices which they made in undertaking the business of Government. Because he did not believe, with some other gentlemen, that they were to estimate the compensations of their officers in proportion as money was scarce or plentiful in the Treasury, nor did he believe there was a real distress in Government for want of money; but their difficulties arose from a difference of opinion in that House on the mode of raising money. He believed there were persons who thought Government squandered away the public money; that its officers divided the loaves and fishes amongst them; and that the only way in which this profusion of expense could be checked was by pursuing a system of direct taxation, which would make the people feel the amount which they contributed to the support of Government. He should not undertake to examine this principle, nor deny that such facts might exist. It would be enough to look at existing circumstances in our country, and see how far they would apply. Our Government, he said, rested on public sentiment for support, and must always be regulated by it. He was willing, he said, to go all lengths with gentlemen in adopting a system of taxation calculated to raise a permanent revenue. Nor was he apprehensive for the result, when dictated by reason and justice. Contemptible must be that state of Government, said Mr. B., where its public officers are starved for want of a proper spirit in the people to support them. Is America, said he, arrived at this melancholy state? If she were, God forbid she should ever experience another revolution! Is this all our boasted acquisition, in return for the struggle we have made for our country? No; he denied the fact. America was not reduced to that state which will not allow her to pay the expenses of her Government, nor is she unwilling to pay them; neither is public sentiment so debased as not to approve of any measure which shall be taken to secure a handsome maintenance for our officers. There was no occasion for hypocrisy in the business; he was willing to state the whole truth plainly to his constituents. He should not think of telling them they were giving too high salaries for their officers, when he knew, that, owing to their insufficiency, they were diminishing their own private fortunes. Nor did he wish to intrench on his own property in serving the public; he believed there was no occasion for this. He should, therefore, speak plainly to them. Mr. B. said, he would inquire whether the present salaries were a reasonable and just compensation for the services performed? In respect to the PRESIDENT OF THE UNITED STATES, it was said that he had already a large salary. He knew that twenty-five thousand dollars had a great sound in the ears of many, but he trusted the people of the United States not only possessed just views of Government, but that they also possessed virtue to support the just measures of Government, and would not consent that their Executive officers should be placed on such a footing as to be looked down by officers from foreign countries who moved in a lower sphere. Therefore, when they looked into the reason of the thing, and found their present salaries were unequal to their support, not in the style of splendor observed in foreign courts, but according to the manner of living in Philadelphia, would they not be willing to increase them? He believed they would. The present PRESIDENT, he said, was a man of fortune, and never took from the Government more than would support his table, either during the war or during his Presidency. And what, he asked, did these expenses amount to? To the whole sum allowed him by law. But were they always to expect to have a PRESIDENT who would give his services to his country? Or had the PRESIDENT set a bad example, by living in a style of extravagance and splendor? He believed this was not the opinion of Americans, or that of foreign countries. If, then, the present PRESIDENT had lived upon his own fortune, and the whole of his compensation had gone to defray the expenses of his table, if this compensation was not advanced, how were future Presidents to come forward, to support the same style? They could not do it without infringing on their own fortunes. And do the citizens of the United States, he asked, wish their First Magistrate to be placed in this situation? He could not think so. He believed they meant to make ample provision for his support; and if the present provision was found inadequate, they would condemn their Representatives; they would say they did not support the dignity of their country, if they neglected to advance it. The same observations, Mr. B. said, would apply to the VICE PRESIDENT, and to other officers of Government. He did not wish the salaries of their officers to be such as should enable them to make fortunes out of them, but he would have them sufficient to afford a handsome living. Were they so at present? He believed not. It had been said, the other day, that they could not afford to live in the same style with persons who stood on the same footing with them before they went into office. He could not say whether they were obliged to intrench on their own private fortunes; if it was so, he asked if it were reasonable or just that they should be so placed? It certainly was not; and, therefore, convinced as he was that the people of the United States were willing and able to support the expenses of their Government, and that they wished their officers to have a just and reasonable compensation, which should not only enable them to make a respectable appearance in the eyes of their own citizens, but in those of foreigners, he should have no scruples in giving his consent to the advances proposed. As to the compensation allowed to the members of that House, here he had knowledge; he could speak from experience. He could say that he had diminished his income one thousand dollars a year since he had a seat in that House. Did his constituents, he asked, wish this? He believed not. They did not wish him to intrench on his private fortune while he was serving them. They did not expect him to squander away their money in profusion, nor did he; he lived in the most economical style; but they wished his reasonable expenses to be paid. Besides, said Mr. B., were the rates of compensation, when first established, established upon this principle? He thought not. They were then thought to be a just and reasonable compensation; and, if it was not then unreasonable, it could not now be reasonable. Was it right, he asked, when every kind of labor was higher by one third or one-half than at that time, that the compensations allowed to persons employed by Government should remain stationary? He could not conceive that this was either just or proper, or that the citizens of the United States wished it. If any conclusion might be drawn from the practice of individual States, they would be warranted in making the proposed advance, since many of their Legislatures had advanced the pay of their members. Indeed, he believed the people were generally convinced of the necessity of advancing the compensations allowed to the officers of Government and members of the Legislature, under the present circumstances. Mr. B. said he was not for making a permanent increase of salaries, except to the PRESIDENT and VICE PRESIDENT. He did not conceive that the members of the Legislature ought to have more than was sufficient to support them, without obliging them to infringe upon their own fortunes. He wished the advance thereof to operate no longer than until the present existing circumstances were removed; he should move, therefore, to have the duration of this regulation for one year, instead of two, as it was possible in the mean time the price of living might be so reduced as to make the additional allowance no longer necessary. Mr. RUTHERFORD said, if gentlemen reasoned together for a moment, they would be convinced this measure was altogether improper and unjust. Our present PRESIDENT, said he, is looked up to with reverence, as to Cincinnatus, as a good republican. When the commissioners from the Republic of Holland went to treat with Spain, they went in a style of such simplicity as to command the greatest respect. They afterwards appointed a Stadtholder, a man of great reputation and patriotism doubtless, like our PRESIDENT; but, as soon as they suffered themselves to lose sight of their simplicity and plainness of manners, and got into the policy and splendor of Courts, they were enslaved by their Stadtholder; for, within these few years, the office of Stadtholder has been declared hereditary. What an extravagance is this; that a man should be born a Stadtholder or a King! While the Roman people maintained their simplicity of manners, while Cincinnatus was amongst them, they were a happy people; but when they lost sight of their plainness of manners, they lost sight of their happiness. Let us look at our sister rising Republic, and observe how they are doing away all pomp and pageantry in their Government and country, and aiming at a simplicity of manners; but, said he, I fear we have not lost sight sufficiently of kings, priests, and courts. This was his dread. It was necessary to bound these ideas. Patriotism could not be purchased, and should they despair of getting a man to fill the office of PRESIDENT without they increased the salary? Must they hire a man for this purpose? No, they should not be obliged to do this; there would always be found men of abilities and patriotism to fill that office, without any view to pecuniary advantage. Mr. DENT said the question was to make an amendment by striking out the first section. Being in favor of that part which contemplated the addition of five thousand dollars to the salary of the PRESIDENT, and opposed to any addition to that of the VICE PRESIDENT, he wished the question divided, in order to accommodate his vote. The Chairman said the motion was to strike out the whole section, and it could not be divided. The motion for striking out was then put and carried--56 members being in favor of it. _Election of President._ A message was received from the Senate informing the House that the VICE PRESIDENT had laid before them the following communication: _Gentlemen of the Senate_: In consequence of the declaration made yesterday in the Chamber of the House of Representatives of the election of a President and Vice President of the United States, the record of which has just now been read from your journal by your Secretary, I have judged it proper to give notice that, on the 4th of March next, at 12 o'clock, I propose to attend again in the Chamber of the House of Representatives, in order to take the oath prescribed by the Constitution of the United States to be taken by the President, to be administered by the Chief Justice or such other Judge of the Supreme Court of the United States as can most conveniently attend; and, in case none of those Judges can attend, by the Judge of the District of Pennsylvania, before such Senators and Representatives of the United States as may find it convenient to honor the transaction with their presence. FRIDAY, February 10. _Naval Policy: Purchase of a Site for a Navy Yard._ The next resolution which came under consideration, was that proposing the purchase of a site for a navy yard. Mr. PARKER doubted, from the spirit which seemed to be shown on this occasion, that this resolution would not pass. Mr. W. SMITH hoped this would be agreed to. Whatever gentlemen may now think or determine on, it was probable we should at some time become a naval power; and even with the most distant prospect of that, it would show economy to prepare for it. He said it never could be too soon to begin the business, and the most effectual method of procuring live oak, and preserving it, was to take the earliest means to obtain, and secure it, when obtained, for seasonable use. He read an extract from the Secretary of War's report in support of the plan. Mr. COIT said he was alarmed at the expense of this business. He saw in the report the salaries of two persons already at Norfolk and Portsmouth, for taking care of the timber, at 500 dollars each, 1,000 dollars. If they were to pay at this rate for overlooking the timber for one ship, what might they expect would be the expense of a navy yard? Mr. PARKER said, the persons to whom these salaries were paid, took care of the timber at Norfolk and Portsmouth. It was necessary that some person should look after it, or it should be disposed of; but, in case the present resolution was agreed to, there would be no occasion in future to pay these persons, as all the timber and other materials would be stored in the navy yard. He said he had received an estimate from the War Office of the expense which would be likely to attend the establishment of a navy yard. The expense of 100 acres of land, and all the necessary buildings, was estimated at 37,210 dollars. Mr. NICHOLAS said, after having squandered so much money in getting timber for these vessels, he thought some change of habit should take place before they embarked largely in this matter. They had given twice or thrice as much as the timber was worth, yet they were now called upon to go on in the same course. It was not a time for going into this business. If such a thing was even proper, two or three years could make but little difference, and there could be little doubt but every thing could then be bought at half price. This, however, was not his principal objection. It was this: he did not want to see any such establishment; a navy would never do any real good to this country, but would increase the unhappiness of it. It would require large sums of money to support it; its benefits were doubtful, and it might be of very mischievous consequence to the nation. Mr. SWANWICK said he entirely agreed with the gentleman from Virginia (Mr. NICHOLAS) that there was a necessity for some change of habit; they appeared to be getting that change at present, and whatever their habits were at present, he supposed they would come right at last. Whatever might be their opinion of the necessity of a naval force, the European nations, he believed, would convince them of the necessity of it, if they only gave them time enough. It was an extraordinary thing to look at the progress of economy in that House with respect to these frigates. In the first place, six frigates were necessary; they were afterwards reduced to three, and because an officer was appointed to take care of the timber left on hand, a gentleman from Connecticut wondered that $500 should be so employed. A motion had been made to confine the Executive to finish the hulls of the ships only. This would have been a strange economy. Indeed, such attempts were made at economy on this business as were never introduced upon any other. The gentleman from Virginia (Mr. NICHOLAS) had observed there was no use for ships at all. If the House were of that opinion, such a resolution had better at once be come to; but the strange sort of hesitating conduct which was adopted, exceeded all that he had heard of in legislation. Had gentlemen who declared these vessels to be of no use, contemplated the situation of this country; that it depended wholly upon commerce for revenue; that that commerce was now put in jeopardy, and that no substitute had been found for the revenue thence arising? And would not all this hesitation, whenever the subject of a navy came under consideration, tempt European nations to continue their unjust depredations upon our property at sea? It certainly would. But even gentlemen who wished to confine themselves merely to the finishing of the vessels at present, would not surely think it improper for them to establish a navy yard, and to secure timber for future use. Did those gentlemen consider what it was to deprive the country of a rich mine of ship timber? If they hesitated on this subject, they surely did not. What had been said by the gentleman from Maryland on the subject of Algiers, was very just; and the want of a navy power would have a similar effect upon all our negotiations, as foreign nations would rise or fall in their demands, according to our power at sea. The money thrown away upon Algiers to purchase peace, would have been much better employed in building ships; for if we had a few ships, that power would not have committed the depredations upon us which she had done. And whether the money was paid to Algiers or expended in building ships, it was in both cases for the same purpose, viz: the protection of commerce. But there was this great difference between the two expenditures. In the one case, the dollars were shipped off to a foreign country, and in the other, they were paid to our own citizens. The iron used was from our own mines; the guns from our own manufactories; the hemp, and every other material, were of our own growth and manufacture, so that the money went into the hands of our artisans, manufacturers, and farmers. And, therefore, though the frigates had cost a great deal of money, it was some modification of the expense to consider that the money was gone into the pockets of our own citizens. But, he asked if the loss we sustained for the want of a naval power could be estimated? He said it could not. We not only lost our property, but our seamen, and they were not only lost to us, but were probably in the service of those countries which were committing depredations upon us. The loss of property might be recovered; but a hardy race of seamen once lost, could not be recovered. What an affecting spectacle had we the other day of sixty of these unfortunate men returning from Algerine slavery? They were received into the arms of their country with all the sympathy which the occasion called for; but could gentlemen help feeling, at the same time, for the impotence of our Government, when they recollected that the liberty of these men had been purchased at a very high price from a petty despot? And shall we continue to go on thus, and encourage the Barbary powers to enslave our seamen by showing so great a reluctance to enter upon any measure which might afford a defence against their depredations? Mr. MURRAY believed it would be a very prudent measure to secure the ship-timber in question; for if we did not, it was probable some foreign nation would get possession of it. He did not know whether the laws of Georgia would permit foreigners to purchase the land upon which this timber grew; but if they would not, it would be no difficult thing to get possession of it through the medium of an individual. If this country were to become a maritime power, and no one who considered the subject for a moment could doubt it, this was too rich a mine to be neglected. What had been said about adopting the Chinese policy, might serve to amuse them; but when they looked at the commerce of the country, it was impossible they should not see the necessity of a naval force to protect that commerce against the depredations of any nation who chose to attack it. Indeed, it was come to this, they must either provide for the protection of commerce, or deny the utility of it, and give it up altogether. But the gentleman from Virginia (Mr. NICHOLAS) was afraid if these frigates were sent out to sea, they would involve us in a war. What! said he, can it be supposed that three frigates would give us that ridiculous kind of spirit which would induce us at any rate to go to war? This would be a species of insanity which he did not think it was probable we should fall into. No: these vessels would serve to protect our coasts, and preserve our commerce from attacks, at least, within a small distance from our own ports. How far they might serve to render us of some importance in the eyes of foreign nations, he could not tell; but he believed that three frigates would have a greater effect in this respect with us, than ten to Sweden, Denmark, or Holland. We lie, said he, near the high road of commerce to the West Indies, and these three frigates, backed by national wealth, would show a disposition to become a maritime power, and would have their effect upon European nations. Besides, Mr. M. said, these vessels would be the foundation of a future Navy. He was for shaping our means of defence to the means of offence employed against us by other nations; for until the European nations became wise enough to cease from war, it was necessary to provide means of defence against their attacks. He should, therefore, always give his support to every means of national defence. He wished our nation to stand upon a respectable footing as a nation, since the most magnanimous conduct was no security against the attacks of foreign powers. He should, therefore, be in favor of a naval yard, and of providing ship-timber for future use. Mr. HARPER said, the two resolutions respecting a naval yard and a provision for timber should come under consideration together; because, if no provision was made for purchasing timber, a naval yard would be of no use. This question, he said, was capable of being considered under two points of view: the one whether the measure was proper; the other, if the measure was proper, whether it would not be better postponed for the present. Both of these points required a considerable degree of attention. There was a variety of considerations on both sides of the question, and it remained for them to determine for the best. Was it proper for this country, he asked, to turn its attention towards marine strength? Did not our situation, and the circumstances in which we stand, compel us to turn our attention to this object? He thought they did, and for one or two reasons which he would submit to the consideration of the committee. It appeared to him out of the question that any kind of commerce should be continued without some ships-of-war to protect it. This was the dilemma in which we were placed. It was said by some gentlemen that this dilemma might be avoided, by suffering commerce to go on unprotected, and subject it to all risks; and that even then, there would be sufficient benefit arising from it, to induce its continuance. This he did not believe. If persons engaged in commerce could have no dependence upon the protection of Government, a very few years, perhaps a few months more, might convince them that the business could not and ought not to be continued. The present Government, he said, had only been in existence eight years, and for nearly four of them commerce had been subject to every kind of depredation. The usual calculation with respect to Europe was, that during every ten years, it would be subject to war, and that these wars would have a duration of from six to eight years, in the course of which our property and citizens would be subject to the same violations and injuries which they had for the last four years experienced, if no provision was made, by a naval power, to prevent it. Brought to this dilemma, said he, which side will you take? Will you give up commerce, or build a Navy to protect it? Besides, he said, a great part of our citizens who had been trained up in commerce from their infancy, could not be driven from that kind of employment to which they had always been accustomed. They could not be induced, like the Chinese, to stay at home; they would be engaged in commerce, their favorite pursuit. If they, then, were compelled to protect commerce, he asked if there was any other way of doing it than by a Navy? He believed not. Treaties afford a feeble and very inadequate protection; they were broken whenever it suited the interest of a nation to break them. Letters of marque might afford some protection; but this would operate as a heavier tax upon the people than even the support of the Navy. The money which a merchant expended in this way would eventually come upon the people in the price which they would be obliged to pay for their merchandise, and the means would be very inadequate to protection. In China and the East Indies, Mr. H. said, the inhabitants could shut themselves up within their own territory, and avoid any intercourse with foreign nations. In countries so far removed from Europe, as to prevent any one nation from making a monopoly, of its trade, this policy might exist. But could America lay up her ships, and say she would open her ports to all nations? No; that very instant you give up your trade to that nation which has the greatest power at sea; for she will immediately block up your ports, and oblige you to trade with them only. In order, therefore, to trade with all nations, we must be the carriers of our own produce, for other nations would not leave us at liberty to do so. The strongest power would say to the others, you shall not trade with these people, you shall do so and so, or we will go to war with you. You must, therefore, said he, protect your own trade. Will these resolutions, then, said he, if adopted, tend to this point? He believed they would. To provide a dock-yard, and to take care of a supply of timber suitable for the purpose of ship-building, were very essential steps. Much expense, he said, would be saved in carrying on the building of several ships together in one yard, instead of having them scattered in different parts of the Union. Timber might also be laid up to season in this yard, so as always to be ready for use; for, he believed that much of the delay which had attended the building of the ships now on the stocks, had been owing to the difficulty which had attended the procuring of proper timber. Besides, Mr. H. said, its being known to foreign nations, that you had provided a dock-yard, would have some weight; it would at least have the appearance of an intention of building a Navy. With respect to the purchasing of land clothed with live oak timber, he thought it a very desirable measure. It was well known that this timber was confined to a few spots--a few sea islands on the coast of South Carolina and Georgia, and some small strips along the seashore; and in each of these places there were only a few trees of a sufficient size for building large ships. The land upon which these trees grew, since the cultivation of cotton had been introduced into those parts, was become valuable land for that purpose. This induced the people to cut down the timber and burn it, for the sake of getting the land, and there was no way of arresting this practice, but by securing the land; and being of so good a quality, when the trees were cut down, it would probably sell for a greater price than was originally given for it. Mr. GALLATIN saw no connection between the two resolutions, which the gentleman who had just sat down thought it necessary to connect together. The last resolution proposed the purchase of land clothed with live oak; the present proposed the appropriation of a sum of money for purchasing the site of a naval yard, &c., as a foundation for a Navy. The last went only to the securing of timber for the building of a Navy, if at any day it should be thought necessary; he believed he should vote for the last, but certainly against the first. They had been told that no commerce could exist without protection, and that that protection must be a Navy; from whence it would follow, that if a Navy was necessary to protect commerce, it must be a Navy competent to vie with the navies of other nations. He would here ask, how gentlemen drew their conclusion, that commerce could not exist without the protection of a Navy. He wished they would show from the example of any nation in Europe, or from our own example, that commerce and navies had gone hand in hand. There was no nation, except Great Britain, said he, whose Navy had any connection with commerce. No nation, except England and Holland, had more to do with commerce than this country, and yet we had no Navy; and though for the four last years this commerce had been subject to continual depredations, it was not exceeded by any nation, except the two he had named. And if they looked to Europe, they would find there was no connection between navies and commerce. Russia and Sweden had considerable navies, but little commerce; whilst Holland, whose Navy was by no means large, ranked next to England with respect to commerce. Hamburg, he said, was one of the first commercial States in Europe, yet she had no Navy. Navies, he said, were the instruments of power, more calculated to annoy the trade of other nations than to protect that of the nation to which they belong. But there was another position which he should take in opposition to gentlemen who supported the creation of a Navy, viz: that however useful or desirable a Navy might be, this country was not equal to the support of one. We might have two or three frigates indeed, but, when he said we could not support a Navy, he meant to say we could not support such a Navy as should claim respect, in the sense which those gentlemen spoke of it; such as being an object of terror to foreign nations. If they calculated what the three frigates had cost, considered the scanty manner in which this country was peopled, our inability to raise any very large revenue, and the high price of labor, the truth of this assertion would appear evident. Again, if such a Navy were created, how was it to be manned? He wished gentlemen to point out any mode in which a Navy could be manned in this country without having recourse to the abominable practice of impressment. If the nations of Europe found it impossible to man their fleets without having recourse to these violent means, he believed it would be impossible, without breaking down those barriers which secured the liberty of every citizen, to man a Navy in this country. Perhaps he might be asked, if we were, then, to be left without protection? He thought there were means of protection which arose from our peculiar situation, and that we ought not to borrow institutions from other nations for which we were not fit. If our commerce had increased, notwithstanding its want of protection; if we had a greater number of seamen than any other nation, except England, this, he thought, pointed out the way in which commerce ought to be protected. The fact was, that our only mode of warfare against European nations at sea, was by putting our seamen on board privateers, and covering the sea with them; these would annoy their trade, and distress them more than any other mode of defence we could adopt.[10] MONDAY, February 13. _Purchase of Live Oak Lands._ Mr. HARPER said, that though the House had declined coming to a resolution to authorize the PRESIDENT to purchase certain lands in Georgia, clothed with live oak and red cedar timber, as a reserve for future naval purposes, yet there seemed to be a disposition to cause an inquiry to be made on the subject. He therefore proposed a resolution to the House to the following effect: "_Resolved_, That the President of the United States be authorized and requested to cause to be made and reported to this House as early as may be after the meeting of the next session of Congress, an inspection of lands furnished with live oak and red cedar timber, with the relative advantages of different situations with respect to their fitness for naval purposes, and the rates at which purchases may be made." Ordered to lie on the table. _John de Neufville._ On motion of Mr. MADISON, the House resolved itself into a Committee of the Whole on the following report of the committee, to whom was referred the memorial of Anna de Neufville, widow of John de Neufville, deceased. They report-- "That the services and sacrifices of the said John de Neufville to the United States, during the war of their Revolution, as stated in the said memorial, and vouched by the testimonies herewith reported, constitute a reasonable claim, in behalf of his, at present, very distressed widow and children, on the justice of the United States. That it being impossible, from various and peculiar circumstances incident to the services rendered, to ascertain and liquidate the compensation due into a precise sum, it is necessary for Congress to decide on and provide for such allowance as may be deemed equitable and right. That, in the opinion of the committee, the sum of three thousand dollars may be a proper allowance. They therefore propose the following resolution: "_Resolved_, That provision ought to be made, by law, for granting to the widow and two children of John de Neufville, the sum of three thousand dollars, to be equally divided among them." This report was advocated by Messrs. HARPER, W. SMITH, SWANWICK, HAVENS, HEATH, THATCHER, VARNUM, and RUTHERFORD. They stated that the husband of the petitioner, John de Neufville, was an eminent merchant at Amsterdam; that he was an influential character there, and, at an early period of our Revolutionary war, entered with great zeal into the interests of America; that, meeting with Mr. William Lee, the Commissioner of the United States, he endeavored to bring about a treaty between the United Netherlands and the United States, which being discovered by the British, that Court used its influence with the Government of that country to harass and drive him out of the country; that during his residence at Amsterdam, his house was a constant asylum for American citizens; that he had made large advances in money for the service of the United States, which obliged him to extend his credit beyond what was warranted by the regular course of trade, and a failure in the payment of which (owing to the embarrassed circumstances of the United States at that time) had greatly injured him, and left him to the mercy of his creditors. The consequence was, he was reduced from affluence to poverty at an advanced period of life. Some years ago he arrived at Boston with his wife and two children, where he subsisted in a very humble manner upon the bounty of his friends in Holland; those friends having, by the reverses occasioned by the Revolution, been much injured in their property, could afford him but a scanty pittance; but Mr. de Neufville being dead, the petitioner was deprived of this assistance; and, to add to her repeated misfortunes, the son of her late husband, from their multiplied sufferings, had been deprived of his reason. Under this pressure of grievances, the petitioner was come from Boston to lay her case before Congress, and pray relief. This peculiarly distressing case was supported with great zeal and feeling by its advocates, particularly by Mr. HARPER. The claim was opposed by Messrs. COIT, SWIFT, and NICHOLAS. An application, it seems, was made by Mr. de Neufville, during his life-time, for redress; upon which the then Secretary of State (Mr. JEFFERSON) reported. This report, after stating all the facts upon which the claim was founded, gave it as his opinion, that the petitioner had no real claim on the United States. This report, it seems, had never been acted upon. The reading of it, as well as of all the documents relative to this claim, was called for, and they were accordingly read. The opposers of this claim acknowledged the distressed situation of the petitioner, but denied the justice of her claim upon the United States; the treaty which Mr. de Neufville proposed to enter into with Mr. Lee, they supposed, was a treaty which he believed would prove beneficial to his country, and not to the United States: that there were many claims in our own country from persons who had been injured by the war, the justice of which was less equivocal, and the distress at least equal. Mr. NICHOLAS said, a few days ago only, a poor man, whose health had been so much impaired in the war, that he was unable to earn his living, had applied to him to bring his case before Congress, yet, as the pension law affords no relief to any person, except he had been wounded, he was obliged to inform him that he could do nothing for him. There were multitudes of such instances, equally distressing with the present, to which no relief could be afforded. Mr. THATCHER moved to have the three thousand dollars struck out, and five inserted. This was negatived--45 to 37; but the resolution was agreed to as reported--yeas 63, nays 25. THURSDAY, February 16. _John C. Symmes._ Mr. GALLATIN said, a report had been made upon the contract between John C. Symmes and his associates, and the United States, which it was of importance to pass into a law this session, as the object was four hundred thousand acres of land, which was worth about eight hundred thousand dollars. The House accordingly resolved itself into a Committee of the Whole on the subject, when the report, which was very long, having been read, the committee agreed to the resolution reported, which was in the following words: "_Resolved_, That a committee be appointed to bring in a bill to authorize the President of the United States to grant, in fee simple, to John C. Symmes and his associates, that part of a tract of land, the boundaries whereof are ascertained by a survey executed in conformity to the act of Congress, entitled 'An act for ascertaining the bounds of a tract of land purchased by J. C. Symmes,' and returned to the Treasury Department the 10th of January, 1794, which is not included within the bounds of a grant already made, on September 8, 1794, to the said J. C. Symmes and his associates; excepting and reserving out of the same the lots reserved by the original contract, entered into between the United States and the said Symmes and his associates; provided that the said Symmes and his associates shall previously, in conformity to the terms of the original contract, make the requisite payment for the tract to be granted to them, and for the 47,625 acres, part of the grant already made to them on the 30th September, 1794, for which they have not yet paid any consideration; and provided, also, that the township reserved for an Academy shall have been previously laid off and secured, according to the terms of the contract, and of the resolutions and law of Congress relative thereto." FRIDAY, February 17. _Increase of Duties._ BROWN SUGAR. Mr. W. SMITH said, the proposed increase, it was calculated, would raise 110,000 dollars, and as the article was not liable to be smuggled, nor its consumption to be decreased, it would be a certain, and he thought, an eligible tax. Mr. HOLLAND had no doubt but this tax would augment the revenue; but he knew also that it would fall more upon the poor than upon the rich, and he thought they ought not to add to their burdens. He thought there were other articles which would bear some addition, but either brown sugar or salt would be much felt. If they studied that which would be burdensome, here they might fix, but he hoped this was not the principle. By advancing an article so universally used, a rise of labor (already too high) must naturally follow. Mr. KITCHELL believed the rich and opulent would bear their portion of this tax as well as the poor, as it would fall upon fine sugar as well as upon brown. It would therefore be paid in proportion to the sugar used, and would fall as equally as any other tax which could be laid. In this instance, Mr. K. said, gentlemen seemed apprehensive of the poor bearing too great a part of the burden; but, if the direct tax on land were to take place, would it not, he asked, fall much heavier upon the poor than a tax on sugar? He believed it would; since the poor who held lands would be called upon to pay their portion of it, whilst the rich who held no lands, would escape it. He, therefore, thought this a far preferable tax. Mr. DEARBORN said, if further revenue was necessary, he could not conceive any article which would bear an advance of duty better than the one proposed. The present duty, he said, was one and a half cent a pound, and could it be supposed that to lay an additional half cent upon it, could make much difference to the consumer, or that it would ever be felt, or that, at the end of a year, it would be discovered whether one and a half or two cents duty had been paid upon a pound of sugar? He should have no objection, instead of half a cent, to lay an additional cent upon this article. In various parts of the country, brown sugar was retailed at from 12 to 20 cents a pound, the price being much increased from the present distressed situation of the West Indies. But they would find sugar of the same quality selling in one place for 12, in another for 14 or 16 cents; therefore, whether the duty was one or two cents, he did not think it would be felt by any body. It was true, that it was an article used by the middling and lower classes of the people; but the tax falling upon fine as well as brown sugar, all parts of the community would bear an equal share in the burden. Mr. WILLIAMS moved to strike out the half cent, and insert a cent. It appeared to him that such an advance could not materially affect the consumer. The people, it was true, might use less; but, if they did so, as it was an article of luxury, every pound of sugar less which was consumed, would be of benefit to the country, by keeping the money which it cost in a foreign market at home. But he did not believe that this would be the case; or that the proposed additional duty would increase the price of labor, as had been suggested. He believed the price of labor would be regulated by the price which the farmer was enabled to get for his produce. Whatever the farmer could afford to give his laborer (especially in this country where agriculture is the true interest) would fix the price of all other labor. Mr. HOLLAND said, perhaps the constituents of the gentleman last up might manufacture their own sugar, and therefore would not be affected by this tax; but the greater part of his constituents were obliged to use and purchase their sugar; and if it were a luxury, it was one he did not wish to deprive them of, but that they might have it upon the same terms as usual. He looked upon it as a necessary of life, already at too high a price, and he should, therefore, oppose any advance of duty upon it. Mr. GALLATIN said, he and his constituents were in the same situation with the gentleman from New York (Mr. WILLIAMS) and his constituents. They manufactured almost the whole of their own sugar; very little imported sugar was used; indeed, they sometimes exported sugar; but though this reason seemed to act pretty powerfully upon the gentleman from New York, it would not have the same effect upon him. Whenever a measure operated partially upon other parts of the Union, though it might operate in favor of his constituents, he should feel himself in duty bound to oppose it. On the ground of their being Representatives of the whole Union, as well as on the ground of policy, he did not believe it was right to endeavor to throw a burden upon one part of the Union, because the part in which they were most particularly interested, would escape it. He hoped the amendment would be rejected, and after the sense of the committee should have been taken upon it, he also would move an amendment. At present, brown sugar paid one and a half cent a pound duty, and molasses three cents per gallon. He should, therefore, move to have an additional cent laid upon molasses, in order that the two articles might be increased in the same proportion. He was against any increase at present; but if the duty on one article was increased, the other ought also to be increased. Mr. WILLIAMS observed, that he had said the people in the part of the country from whence he came, made their own sugar during the war; if they were to make it now, it would cost them more than double the price at which they might purchase it. He said, when the gentleman from Pennsylvania (Mr. GALLATIN) found the land tax was not likely to pass, he wished to defeat every proposition for an indirect tax. He had attempted, therefore, to defeat an additional tax on sugar, by proposing to add molasses to the resolution. He did not think this fair; he wished every proposition to stand upon its own ground. A few days ago that gentleman had insisted upon the necessity of laying a direct tax; but now he came forward, and said no additional revenue was wanting. He wished not to have a compulsory tax, but a tax which persons might pay or not. If they did not like to pay the tax on sugar, they might do without it. Mr. COOPER said he was against any additional duty on salt or sugar, though he and his constituents (as well as his colleague and his constituents) should bear no part of the burden, as they made not only sufficient for themselves, but for sale. Indeed, he said, a duty on salt exported out of the United States, would produce revenue, as a considerable quantity was sent into Upper Canada. Mr. WILLIAMS denied that his constituents made any salt; they had no salt but what paid duty; nor did his constituents make one-fourth of the sugar they used; nor did he believe his colleague's (Mr. COOPER's) constituents made one-half of the sugar they used, as he well knew that a large quantity of sugar was sent to that district by way of Albany. Mr. READ hoped the amendment would obtain. Although such persons as lived at a distance from market manufactured their own sugar, and consequently would be excused from this duty, yet they labored under many disadvantages in other respects, on account of their remoteness from market, and therefore he had no objection to their being excused from the operation of this tax. He did not believe this tax on sugar would fall upon poor persons. Farmers, indeed, used a little brown sugar, but they would rather pay a little more for this article than have their land taxed. Mr. CLAIBORNE was against the amendment. If an additional duty of one cent was laid upon brown sugar, the different dealers would make it three or four, so that it would be materially felt. Mr. GALLATIN then moved to amend the resolution, by adding an additional cent per gallon upon molasses. At present the duty on brown sugar was one and a half cent per pound, and on molasses three cents per gallon. The advance of 33 per cent. on the present duty would be the same that had been agreed to be laid upon sugar. Mr. SWANWICK seconded the motion. The only way in which the tax on brown sugar could be secured was by advancing the duty on molasses in the same proportion, otherwise molasses would be used in the place of sugar, and the duty would be evaded. But he would have gentlemen consider in what situation they placed the revenue in respect to drawbacks. The person who paid the duty was probably not the same who drew the drawback on exportation; the United States run the risk, therefore, of paying the drawback, without receiving the duty. Though he thought the tax on sugar highly objectionable, yet if it were adopted, he thought it right that it should be accompanied by a proportionate tax on molasses as a security to the duty being paid. One cent a pound on sugar, it was said, was a trifle; but it was well known that the price of that article was at present very exorbitant, from the disorders which had taken place in the West Indies. Mr. NICKOLAS hoped the amendment would be agreed to. His principal objection to a tax on sugar was, because, having been successful in making one addition, it would be an argument for making future ones, but if molasses was added to it, the tax would then fall more equally on the poor of different parts of the Union, and be a means of keeping down the tax. Mr. BUCK said, if he thought the advocates of this amendment would vote for the resolution when amended, he might be induced to vote for it; but he believed they did not mean to do so. If an increase of the duty on brown sugar would fall upon the poorer class of the people, an additional duty on molasses would fall much heavier upon them. But he thought gentlemen were mistaken with respect to the operation of the tax on brown sugar; in the country it would not fall upon the poor, though in the cities it might do so; though in increasing the duty on brown sugar, that on fine was also increased. In the country it was the rich who used brown sugar; they had not got to that pitch of refinement which called for the use of fine sugar; they used brown sugar, and the poor used none; they sweetened with molasses. Notwithstanding this, if he thought gentlemen meant to vote for the resolution when amended, he would not object to the addition on molasses, as he did not think so small an advance would be materially felt. Mr. RUTHERFORD hoped they should not agree to lay an additional duty on either of these necessaries of life. He hoped there was sufficient good sense in the House to oppose such a measure. They were used by all classes, from the infant to the stoutest man; particularly by many poor, infirm, aged persons, who looked upon them as nutritious and balmy nourishments. He hoped, therefore, they would not increase the price of those articles; for, if an additional cent was added, the dealers would add two, three, or four cents, which would be more than the poor could afford to pay for them. Mr. CHRISTIE believed the gentleman from Pennsylvania meant, by the introduction of this amendment, to defeat the tax on sugar altogether; he should, therefore, vote against this amendment; but if the additional tax on sugar should be carried, and the additional tax on molasses should be introduced alone, he would vote for it, but he would not vote for them together. He did not think the tax on sugar would fall upon the poor, particularly as fine sugar would be taxed equally with the brown. He thought it was a fair object of taxation. He believed they should want revenue, and he did not know an article from which it could be better raised. Mr. FINDLAY was at a loss to know how a tax on molasses would operate; but his doubts had been removed by the gentleman from Vermont, (Mr. BUCK,) who had informed them it was used by the poor in place of brown sugar. In many parts of Pennsylvania molasses was scarcely known, and brown sugar was generally used by the poor; if, therefore, the same class of persons in one part of the country used molasses for the same purpose for which brown sugar was used in other parts, it was only reasonable that both should be taxed in the same proportion. His colleague (Mr. GALLATIN) had mentioned that his constituents would not pay any of this tax, as they made their own sugar. It was so with a part of his constituents, but not with the whole. As it would be unjust to pass one tax without the other, he should be in favor of the amendment. Mr. GALLATIN said, it had been charged against him, that he had introduced his amendment with a view to defeat the tax on sugar. He had already said that he did not wish for any indirect tax during the present session; but, at the same time, he considered it his duty, if a majority should choose to pass the resolution, to make it as good as possible before he voted against it, for this purpose he had introduced his amendment. Whenever the duty on sugar was increased, that on molasses should also be increased. With respect to what had been said about the duty on brown sugar not falling upon the poor, it was contradicted by the quantity every year imported into the United States. When they knew that this amounted to twenty-two millions of pounds weight, they must conclude that it was used by the poor as well as the rich; for though the Eastern States used a great deal of molasses, it was not the case in the Middle, Southern, and Western States; all classes of citizens in those States used sugar. The voting for the amendment now was the same as voting for it in any other shape. It was doing now what would be done hereafter, if now omitted. There was nothing informal in it. He saw no reason which could be urged for one taking place, which would not equally hold with respect to the other. Mr. SWANWICK thought that those gentlemen who separated the articles of sugar and molasses, would wish to defeat the object; thus it was with the gentleman last up. This was introduced with a view of securing the collection. Mr. S. said he had before stated the injury the United States might sustain in case of a failure of pay from the imported, and need not repeat that he objected _in toto_ to the tax. Mr. BUCK asked if, when on the question on the resolution, (if, adopted,) a separate vote could be given? He was answered no. Then he would observe to the gentleman that, if it could not be separated, he hoped it would not be introduced, it having been said the duty on sugar would operate on the poor; now, he said, here was an article introduced with it that would operate worse than the other; therefore, he should oppose both, if put together, when, if separated, he should have voted for the tax on molasses alone, as sugar was a great means of sustenance and use. The Chairman again remarked (in reference to what had fallen from Mr. W. SMITH) that the amendment was in order, though he did not think it the most fair way of introducing the subject. Mr. GALLATIN conceived that he was the best judge of the fairness of his proceedings; and as the Chairman had declared the amendment to be in order, he expected a question would be taken upon it. Mr. NICHOLAS begged leave to differ in opinion from the Chair in this instance, though he must own much deference was due to it: he thought the proceedings perfectly fair. Mr. N. would vote for this, in order to have the two connected; that gentleman could now vote against the addition of molasses, then he would have an opportunity to vote on sugar alone. He should wish it extended to both alike. The gentleman (Mr. BUCK) was mistaken in his application on this subject; it was not taxing the sustenance of the poor in one article more than another, for the sugar would most affect one part, yet molasses would as much affect another; he, therefore, hoped, if gentlemen wished fair and equal taxation, that this association would take place; this equalization would go to prevent any opposition to the tax, which would otherwise be hazarded. Mr. BUCK was satisfied with this explanation; therefore, supposing gentlemen who supported the amendment would vote for both, according to this modification, he should go with them; if not, he should oppose the amendment. Mr. DAYTON (the Speaker) said, he did not rise to speak to the point of order; he considered that as already settled by the Chairman. Every member, he said, against laying an additional tax upon molasses, would, of course, vote against the amendment; and all those who had no objection to the tax, but who did not wish it to be thus introduced, of whom he found there was not a few, might join them, as, after the additional tax on sugar was agreed to, that on molasses might be again introduced. Mr. S. SMITH said, he had some doubt before the last gentleman was up, of the propriety of tacking these two articles together, but now he had none. One part of the Union, he supposed, would be for voting out molasses: but his constituents would not like the tax on sugar, except it was accompanied with that on molasses; as a subject of sweetening he thought they should both go together. Mr. S. said, he had another article of sweetening, which he wished also to add to the resolution: great quantities of sugar-candy were manufactured in Holland and sent all over Germany; it was used with tea and coffee, in the place of sugar. This article, he said, was finding its way among the Germans in this country. At present it only paid a duty of 10 per cent. _ad valorem_, which was a very inadequate duty, when compared with that paid on sugar. Mr. S. said, he was against going into the subject of indirect taxes, but he thought with the gentleman from Pennsylvania (Mr. GALLATIN) that it was his duty to make the resolution as good as he could. Nothing had been said to prove that we had not revenue enough for the present; but he would, however, move to add nine cents a pound upon sugar-candy imported. Mr. S. said, he agreed with the Secretary of the Treasury, that sugar was amongst the most proper articles upon which to lay an additional impost; but he wished for some permanent source of revenue, and not adopt the trifling modes proposed. Gentlemen talked of deceiving the people; he said they could not be deceived; they would know there were two parties in that House, the one for direct, the other for indirect taxes. Those gentlemen who were opposed to direct taxes brought forward these articles in place of it. The people need not be told this; they saw it evidently enough. Mr. HOLLAND said, though he was opposed to direct taxes, he was also on sugar and molasses; he saw all the disadvantages of some other gentlemen on taxing West India produce at this critical juncture; but if it must pass, he should think it his duty to endeavor to make it pass as unexceptionably as possible; however, he should oppose both, and though it affected his constituents differently from those of Vermont, yet he should not include them as necessarily connected. Mr. H. thought if these were opposed, there might be many articles more proper to lay a tax on; but he thought there was no necessity for any this session. The question for adding one cent per gallon on molasses was then put and carried. Mr. S. SMITH then moved that nine cents per pound be laid on sugar-candy imported, observing that it was much used by the Dutch, and there being much sweetening in it, it should bear a proportionate duty. Mr. W. SMITH wished the gentleman to be candid on the motive of his proposition. Mr. S. SMITH answered, that his conduct with respect to the subject had always been fair and unequivocal; he wished the whole proposition to be defeated, which he had before declared, but, to make it equal and consistent, he proposed the addition. It was then put and carried. The question was put on the whole resolution, as amended, and carried--yeas 52. FRIDAY, February 17 _Increase of Duties._ SALT. Mr. HARPER then proposed that an additional duty of five cents per bushel should he laid upon all salt imported in the United States. [Mr. H. read the letter of the Secretary, wherein he mentions salt as being at a much lower rate of duty than in other countries, and that no tax laid upon it could be evaded, from its necessity and bulk.] Mr. H. added, as, in his opinion, satisfactory answers had been given to the objections which had been urged against this tax, it was not necessary to say more on the subject. Mr. GALLATIN said the arguments of the Secretary of the Treasury were excellent fiscal arguments, and went to say, "provided we can get money, no matter how." He says salt cannot be smuggled; that we know: whether the duty was increased, or remain as it was, the people must consume the same. This was true, and the same arguments might be used for taxing the light or the water. Of all the necessaries of life, a duty was most easily collected upon salt; and this was the reason which had induced other countries to tax it so heavily; and yet this was used as an argument for increasing the duty here; but he was not one of those who felt any consolation, upon such an increase of duty, that there were other countries where the duty was yet higher. Mr. G. said, as to any satisfactory answers which had been given to the objections to this tax, he had not heard them; he believed they had not been answered at all; except, indeed, sullen silence might be deemed satisfactory answers; if it were, they had indeed been answered satisfactorily. Mr. G. here repeated the objections to the tax which he had made on a former occasion, viz: that it would operate as a poll-tax; that it would fall partially on some districts of country, and upon some classes of citizens more than others. He said salt in that part of the country from which he came was already upwards of four dollars a bushel, and that it would be therefore oppressive to increase the evil, by adding fresh duties upon it. Mr. NICHOLAS said a tax on salt was equally objectionable, whether it was considered as a poll-tax, or as a tax upon agriculture. As a poll-tax, every one would see the injustice of charging all men alike with a tax, without respect to their ability to pay it; as a tax upon agriculture, he was able to say something from experience. He was willing to give all the authority to the opinion of the Secretary of the Treasury which he could wish, but he could not yield his opinion to him. He knew that agriculture was at present very much depressed by the high price of salt; he had himself refrained from the use of it, by its dearness, though he believed his cattle had been the worse for it. The poorer class of citizens in the part of the country from which he came were generally owners of cattle, and employed themselves in taking care of them. These men found it at present as much as they could do to make a comfortable living, and any additional tax on salt would be very ill received by them. He was satisfied that it was a tax which would operate with great inequality; it was a tax upon one kind of employment--upon an employment which was generally pursued by the poorer classes, and consequently least able to pay it. It might be said, five cents a bushel was a trifle; but he said he objected to it from the principle of taking money where it could be got, as, if five cents were now to be added, the same argument would hold for adding another and another five on a future day. Mr. HOLLAND was opposed to the amendment; he said no article which could be mentioned would bear a greater augmentation than salt; indeed the whole revenue of the United States might be raised from it, because it must be used by every person; but that was no reason why the whole burden should be laid on it. In North Carolina, Mr. H. said, it was four dollars per bushel, which was sufficiently high without adding to the price, and was always a cash article, and difficult to be had for that. It being an article of absolute necessity, the rich would not pay more, if so much, as the poor. Mr. RUTHERFORD said, he was against this tax for two reasons; the first was on account of its inequality, and the next on account of its odiousness. A tax on salt, he said, was almost like taxing the common air. Farmers were obliged to use large quantities of it for their stock; it rendered them docile and easy to be managed. Indeed it could not be done without; a person was nothing without salt. The price at present was enormous on the frontier, and this duty would add prodigiously to it; for this reason he should give it his flat opposition. Mr. FINDLAY said, because salt was necessary, and because it could not be smuggled, would not surely be sufficient arguments for increasing the duty upon it. The law of reason, he said, was the law of justice. Mr. F. gave an account of the progress of this tax. His colleague (Mr. GALLATIN) must have been mistaken as to the price which this article bore in the Western country. He had himself lately paid six guineas for six bushels of salt. Indeed this was considered as the greatest inconvenience in that part of the country, and they could not at present be relieved from it. Providence, who generally bestowed the necessaries of life in a very general manner, had not provided them with salt. And shall we, for this reason, monopolize a revenue upon it? For the same reason would hold good for paying the whole upon it as a part. He trusted they would not be so unjust to the people of that country. Mr. HARPER said, after all the time which had been taken up in discussing this subject, he would not occupy the attention of the committee longer than while he made one or two remarks. The gentleman from Pennsylvania (Mr. GALLATIN) had said that no answer had been given to his objections against an additional tax on salt. He should not enter into a dispute with that gentleman upon what might be deemed an answer; but he believed many members of that House would remember that an answer was given, and probably they might also think it a satisfactory one; at least it was so to one person. The objections brought against this tax would be well-founded, if the whole revenue was proposed to be raised from it; or if it were intended as a substitute for a land tax, or any other great object; if two or three millions were wanted from it, then it might be objected to upon good ground; but when one hundred thousand dollars only were proposed to be drawn from this source, he did not think the objections would hold. Admitting, said Mr. H., that there was some inequality in the operation of this tax, those persons upon whom it fell heaviest were exonerated from many other taxes which other parts of the country had to pay. They had, for instance, just agreed to increase the duty upon a certain species of cotton goods, of which they would not purchase a single yard. The present revenue was six millions four hundred thousand dollars, of which salt pays near three hundred thousand dollars. The people on the frontier, who pay for salt, are in a great measure exempt from other articles taxed; they purchased neither foreign wines nor spirits, high priced dresses nor furniture; all they wanted was corduroys, &c., which was very unfrequent. If five cents per bushel was laid on salt, those persons would have about a dollar a year more to pay, and nine-tenths not half a dollar. What could be more easy? Indeed, except the people were told of the duty they would not know it, as its effects would be so trifling. With respect to the price of salt at Fort Pitt, as a gentleman had observed, it might be high, but was this occasioned by a duty? No, but by the situation of the country. Ought they not, then, he asked, to devise some species of tax by which to draw some part of the revenue from the inhabitants of the back country? He thought so far from this being wrong, that justice required it. This subject did not address the understanding, but the sensibility of the House, or perhaps the sensibility of those out of the House. The objections against the tax which had been urged, he thought, ought not to have any weight, since it would operate with the greatest equality upon the whole, and there would be safety, propriety, and justice, in making the augmentation in question. Suppose two cents were put, instead of five; this would raise a good sum, and be very easy. Mr. S. SMITH moved that the committee rise; which was negatived--there being only twenty-five in favor of it. Mr. W. SMITH said the question had best be taken on blank cents, then five, four, or any number of cents could afterwards be added. The question was then put, and lost--yeas 41, nays 48. SATURDAY, February 18. _Naval Appropriation._ The House then resolved itself into a Committee of the Whole on the bill granting an appropriation for finishing the three frigates, and also upon the bill repealing that part of the act which provided for the officering and manning the frigates, both having been committed to the same Committee of the Whole. That for repealing a part of the former law came first under consideration. Mr. W. SMITH said he could not abandon the idea of our some time becoming a naval power; he very much disliked the repealing this act; in order, however, to make the bill more palatable, and to remove some of the embarrassments which the Senate would otherwise have to encounter, he would move to substitute, instead of the word "repeal," the words "suspend for ---- years." Mr. COIT thought the very beginning of the frigates a wild notion, and hoped the most distant idea of manning them would not enter gentlemen's minds; he should therefore oppose the motion. Mr. VENABLE said, it seemed the gentleman who moved the amendment did not think it necessary the ships should now be manned. The operation of the amendment appeared to put it in the power of one branch of the Legislature, at a future day, to man the ships, and send them to sea. He was surprised at the changeableness of the gentleman who moved and favored the equipment. When a naval armament was first proposed, it was objected to, as looking like forming a Naval Establishment. They then told us it was expressly to repel the encroachments of the Algerines; and that, as soon as peace was obtained with that power, the building of them was to stop. Now they come forward, and avow a desire to have a Navy Establishment. Thus originate evils which if not stopped early, would spread and become dangerous. The only fair argument they have on the subject is, that a Navy is now become necessary. Certain it is, that, if they intend to have a Naval Establishment, to protect our commerce and repel our injuries, three frigates will be very incompetent to the object. He should not object to finishing them, and only because so much had been expended on them already, but should ever oppose fitting them for sea. Mr. SWANWICK asked the gentleman what security there was in a peace with Algiers? Could he say we were at peace with them now? Certainly we are in a worse situation with that power now than then; we are parting with our cash, (which makes it such a scarce article,) and yet we have no benefit. Now it is said it is altogether a vision--a fancy or a dream. Then gentlemen get up and ask what we are to do with three frigates? He would answer, that so far as they went, they gave stability and protection to our commerce. True, they were not thirty frigates, but he believed, few as they were, they would save more than five times what they cost in only one year. The richest ships we have are now taken and robbed by every picaroon and pirate infesting the seas, because we have no security; and he was surprised it was not worse. He had no doubt but it would be an emolument; it would be a protection to the great revenue we enjoy. That very trade, he said, which was subject to spoliation from such petty robbers, paid into the revenue five or six millions of duty annually. If this was still permitted to be encroached on, it was an error, and it would soon be seen; and this was by a people called "free and enlightened." He had no doubt they would soon be enlightened enough to see they had done wrong. If gentlemen are against finishing these frigates, why do they not come forward and declare it? Let us sell them, said he, at public auction. What will be the effect if we have it told at our wharves that we object to man them, because we have peace with Algiers? He hoped they would be manned, or else have tacked to the bill, that, when finished, they were to be sold for East Indiamen or something. If that were gentlemen's wish, this was the time to come forward and say so, and let it be put in the bill. He would ask, Was there any thing in the name of Government, if it operated in this manner? It was extraordinary conduct, indeed. Gentlemen say they will not vote to finish these frigates, except the repeal for manning is included. When it goes up to the Senate, may they not say they will not vote to finish, except it be to man them? But, Mr. S. said, he supposed gentlemen depended upon negotiation, if any thing was wrong. What were the consequences of our late negotiation? We have two things before us--treaty or ships. As for treaty, we have seen our money sent across the Atlantic, and scattered a thousand ways: this was throwing it into the ocean. He had heard of a Doge of Venice throwing a ring into the sea to marry it: it seemed this money was gone for the same purpose, and its use would be no better than the Doge's ring. He thought the most complete treaty was, power to resist aggression. This business of negotiation is very unprofitable. You may obtain fair promises from foreign ministers, but very poor redress, if any. The question on the amendment was put and lost--ayes 30, noes 51. Mr. HARRISON moved for the committee to rise and report the bill without amendments. Mr. NICHOLAS said, it seemed that gentlemen were making a new business of this. At the time it was brought forward, gentlemen voted in favor of it, because the law was to be repealed. He voted to separate the bills, because he conceived it would not be right to say to the Senate, You shall do two things together, or neither. He hoped the committee would rise, that the House may not have such power over the business as to keep it back. If the other bill pass the Senate, said he, we can take up this, and pass it in a short time. Mr. PARKER thought this a most extraordinary procedure, to say we will not pass the appropriation bill till we know the Senate have agreed to that for repealing. He thought the Senate had as great a right to exercise their discretion as that House. He never expected to have heard such expressions. This was holding out a _dictum_ for their conduct: this he thought neither fair nor proper. Mr. VENABLE thought the bills were connected. He wished to vote merely for finishing the frigates. He hoped the committee would not rise, but that it might be so amended as to add the other bill to it. When he voted for the appropriation, he said, he voted for it only in such a manner as should be reconcilable with his judgment. If the gentleman would waive his motion, and the House would so connect it, he should be gratified. Mr. HARRISON said, as the last gentleman's ideas were fully to his purpose, he should withdraw his motion. On motion being made for connecting the bills-- Mr. BUCK hoped it would not prevail. The only reason he saw to object, (and he thought that very forcible,) was, that it discovered a jealousy in that House of another branch of the Government, which he thought very unjustifiable. He had voted for the repeal, but should not vote for the appropriation. He thought they ought to act for themselves, without reference to the other branch. Any member may vote which way he pleased, but to say he would not vote for one without they go to the other, was unfair. He could see no justice in such a mistrust from this branch of the Legislature. Suppose, he said, the bills go to the Senate separately, they may concur in the appropriation, and reject the appeal. Even in that situation, were it to be left, the Executive could not man the frigates, unless they could obtain further appropriations--to obstruct which would be preferable, and would put it out of the power of the Senate to embarrass the House. Mr. VENABLE said his vote was given without any relation whatever to the Senate. He thought any act passed by this House could not, when sent up to the Senate, be termed disrespectful, for each branch had a right to act for themselves. He was surprised to hear the gentleman last up say he should not vote this appropriation; for he had heard him say, on a former occasion, that he would vote an appropriation for any treaty, law, or whatever should exist to call for it. Mr. V. confessed himself to be of a very different opinion; for he always thought the House had a discretionary power to grant it or not, but that gentleman had long said it had none. Mr. BUCK said, as his doctrines had been called in question, he must beg indulgence to explain. He never said that the House had not a right to judge on the propriety of appropriation in an existing law. He conceived a treaty quite another thing. The PRESIDENT and Senate have a constitutional power to make a treaty; in that, he said, he did advocate that that House had no right to withhold appropriations; but in laws, where the power of making appropriations rests partly in that House, they had a right to grant or withhold. This, he said, he had always held. Mr. NICHOLAS said, this appeared to him a very unreasonable clamor in behalf of the Senate. The gentleman last up seemed very careful not to awaken the jealousy of the Senate. How could he know what part would awaken that idea of disrespect? He had formed his mind to vote on the subject, and surely every member might do so, without a fear of showing disrespect to another branch. The gentleman had said that this House may refuse to appropriate for a law. Now, suppose the Senate refuse to repeal without we appropriate, we are then forced to choose one of two evils. Very often, Mr. N. said, the House were obliged to appropriate for a law, it may be, so far executed that they could not refuse. Suppose the PRESIDENT should, after this, appoint officers to enlist men for the frigates, how could the House refuse to pay them? While a law existed to man these ships, it would be difficult to prevent it: it would enable those who were friendly to the measure to carry it into effect. He hoped, therefore, the House would not run the risk by leaving it open to such possible intrusion. Mr. S. SMITH thought this was a very unfair way of doing business, but he had been used to such things. He thought this form of _tacking_ was very improper and unfair. It had been observed that we were the most free and enlightened people, but he thought those who advocated these measures proved the very contrary. Mr. SWANWICK said, it appeared to him a kind of Legislative stratagem. The whole intention of the business could be easily discovered. If there was nothing improper, why should they fear to trust the Senate with it? Having the yeas and nays on both bills, gentlemen could not easily excuse them for voting for the repeal, as it would go out into the country that many had voted contrary to their arguments. Thus we are forced to vote against our own opinion, or not have the frigates finished. He could plainly see that gentlemen meant to defeat the object, and, he thought, in a very unfair way. Mr. W. LYMAN spoke much of the impolicy and impropriety of the measures of those gentlemen who supported naval preparations. Some time back, he said, those very gentlemen were advising us to cultivate our land, and not regard commerce--it was a broken reed to depend on; but now, they want to put the nation to an enormous expense to protect that commerce they thought so lightly of! The frigates would cost more than double the money which was at first estimated: this would be a disgrace to any nation. The whole process of the business had been bad, and he had no doubt but the estimate now before the House would be found deficient. Though he thought a small Navy would be useful, yet, until he saw its process conducted more fairly, and with more discretion, he should not vote a shilling to it: for the waste of money which had been discovered in this, had given him a distaste to it. A remark having fallen from Mr. L., on the constitutionality of this appropriation-- Mr. W. SMITH said, that, what the gentleman observed, only respected an Army. The constitution says, an appropriation for the Army shall not be made for more than two years, but it said not a word about restricting a Navy; and it is certain that the framers of the constitution had a view to a Navy, as in three different parts it makes mention of it. [Here Mr. S. read those parts from the constitution.] The question was not whether to repeal the law or not, but whether the appropriation bill was to be _tacked_ to the repeal. When before taken up, a majority voted for two bills, and they are accordingly reported, and now the two are to be united. This, said he, is directing the Senate to vote a certain way, because this House saw it right. This was a kind of coercion which would oblige them (if they support their independence, which they certainly will) to reject the repeal. This, he said, was a spirit which every gentleman in the House felt. He therefore hoped there would be two bills. Mr. GALLATIN did not conceive this a question on the constitution; it was not on the power of the House as to the subject of appropriation, but merely on connecting the two bills. He conceived it perfectly right and proper to connect them, because the subject of them was the same. It was not novel: appropriation and repeal had before been connected. Indeed, he thought it improper to hold the Senate in any consideration at all. He should not be guided by any apprehensions of what they would do. The gentleman last up had said, it was unfair to connect them, as it would oblige members who opposed one to vote for both. Now, a majority will always decide, and those in the minority will always be affected. That gentleman would rather take a question on each; but Mr. G. said he would rather on both together. But both will not be material, more than in a certain degree. He further observed that a decision had been come to to keep the subjects apart. This, Mr. G. said, was only in order to give leave to the committee to report one or two bills. But that could not now affect the decision. The House might now do as they pleased. He looked upon the first act of the law as rather explanatory of the other. A law passed last year for the equipment of the frigates. The first law expired as to the manning them. It is therefore only for fear the word "equipment" should be so construed as to mean "manning," that we wish a connection of these bills. He thought it more candid and fair to have both the objects before the Senate at one time than to separate them. If they think it an attack upon their privileges they would act consistently therewith. Mr. WILLIAMS could not see where the difference was, whether the bills were apart or not. He was sorry any jealousy should be discovered towards another branch; if the amendment were to go to the Senate they had power to reject any part. The next Congress would take a view of the subject, and do what they thought right, as the frigates would not be fit to be manned till then. Mr. BUCK again repeated his objections to uniting the bills. Mr. N. SMITH thought there could be no good reasons for uniting the bills. There had not yet been any appropriation made, and the money was nearly expended; he thought the appropriation should be passed immediately, as he had no doubt but both Houses would ultimately unite in this object. If, therefore, any money was to be appropriated, let it be done, and then if the House thought proper to agree to the repeal, it could be done, as no delay ought to be made. The gentleman from Pennsylvania (Mr. GALLATIN) said the other day, that he would not, under any situation, vote the supply until he knew whether there was any intention to fit them for sea or not. This, Mr. S. thought the principal point; but except that gentleman, with others, thought the ships were to remain in the same situation as at present, it certainly was necessary to agree to the appropriations; this was voted on all hands, though some could not agree to go all lengths. He did not believe many could be found in the House who would wish them to remain and rot on the stocks; but for gentlemen to say they would not agree to grant the supply except the other part was repealed, he thought wrong. It was true, they had the power to withhold even appropriations for the PRESIDENT's salary, Senate, &c., but if such opposition was supported, Government could not long exist. That House had power over the Senate, and, _vice versa_, the Senate over that House--each had a right to think and do as they pleased, but it would be wrong in one to curtail the privilege of the other by an ill-timed opposition; this was merely to show a spleen which could not but be to the detriment and delay of business. Mr. W. SMITH rose to answer some observations made by Mr. GALLATIN and Mr. VENABLE, and proceeded to show the impropriety of tacking the bills; he said it would produce insurmountable difficulties. He never could agree to this _tortus discordans_ being sent up to the Senate. Mr. VENABLE answered. The question was then put for tacking the two bills, and carried, ayes 41, noes 36. The committee then rose, and the House took up the amendments reported by the Committee of the Whole. Whereupon, the first amendment reported by the Committee of the Whole House, for adding a new section, to be the second section of the said bill, being read, in the words following, to wit: "_And be it further enacted_, That the sum of ---- dollars be, and the same is hereby appropriated for the purpose of finishing the frigates now building, called the United States, Constitution, and Constellation; and that the same be paid out of the surplus of revenue and income, which may accrue to the end of the year one thousand seven hundred and ninety-seven, after satisfying the objects for which appropriations have been heretofore made." Mr. W. SMITH said, as the question would first be taken on the amendment and then upon the resolution as amended, a member who wished to vote for the finishing of the frigates, but not for the repeal, would not have an opportunity of showing his sentiments by the yeas and nays. In order that members who thought with him might have an opportunity of showing their vote, he called for the previous question upon the proposition. The SPEAKER declaring that this motion was not in order, Mr. W. SMITH called for the yeas and nays upon the amendment. Mr. SITGREAVES said, rather than not obtain an appropriation for finishing the frigates, he should vote in favor of the amendment, though he was of the same opinion with the gentleman from South Carolina (Mr. W. SMITH) as to the unfairness of the proceeding. Mr. DENT was of the same opinion. Mr. MUHLENBERG said as the amendment stood annexed to the other bill, he should vote against it; though, if the subject had continued in a separate bill, he should have voted in favor of it. The question was then taken on the amendment, and decided in the affirmative, 59 to 25, as follows: YEAS.--Theodorus Bailey, Abraham Baldwin, David Bard, Thomas Blount, Nathan Bryan, Dempsey Burges, Thomas Claiborne, John Clopton, Joshua Coit, Isaac Coles, William Cooper, Henry Dearborn, George Dent, William Findlay, Jesse Franklin, Nathaniel Freeman, jr., Albert Gallatin, Ezekiel Gilbert, James Gillespie, Henry Glenn, Christopher Greenup, Andrew Gregg, Carter B. Harrison, John Hathorn, Jonathan N. Havens, James Holland, Andrew Jackson, John Wilkes Kittera, George Leonard, Edward Livingston, Matthew Locke, Samuel Lyman, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Anthony New, John Nicholas, Alexander D. Orr, John Page, John Patton, John Richards, Robert Rutherford, John S. Sherburne, Samuel Sitgreaves, Thompson J. Skinner, Jeremiah Smith, Israel Smith, Isaac Smith, Richard Sprigg, jr., Thomas Sprigg, Zephaniah Swift, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, John Williams, and Richard Winn. NAYS.--Theophilus Bradbury, Daniel Buck, Samuel W. Dana, James Davenport, George Ege, Abiel Foster, Dwight Foster, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, John Heath, William Hindman, Francis Malbone, Frederick A. Muhlenberg, William Vans Murray, Josiah Parker, John Read, Samuel Sewall, Nathaniel Smith, Samuel Smith, William Smith, John Swanwick, George Thatcher, and Peleg Wadsworth. The bill was then recommitted to a Committee of the Whole, in order to have the blank for the sum to be appropriated for finishing the vessels inserted, and was filled with $172,000. TUESDAY, February 21. _Negotiation with the Mediterranean Powers._ Mr. W. SMITH moved that the House should go into a committee on the business, which would require the galleries to be closed; the SPEAKER accordingly put the question for going into a Committee of the Whole on the bill to authorize a negotiation with the Mediterranean Powers, which, being carried, the galleries were cleared accordingly. After the galleries were cleared, the bill was agreed to with amendments, and ordered for a third reading to-morrow. On motion that the House come to the following resolution: "_Resolved_, That the injunction of secrecy upon the members of this House, so far as it relates to that part of the communication made by the President, by his Message of January 9, which has been printed, be taken off, and that all future debates and proceedings thereon be had with open doors." A motion was made to insert, after the words "be taken off," "together with the letter of Messrs. Barlow and Donaldson, of April 5, 1796." The question on the amendment was taken by yeas and nays, and lost--yeas 19, nays 65. The main question was then taken by yeas and nays, and resulted--yeas 53, nays 36. Reports of the Secretary of State, relative to the present situation of affairs with the Dey and Regency of Algiers, accompanying the following confidential Message from the President of the United States, received the 9th of January, 1797: _Gentlemen of the Senate, and of the House of Representatives_: Herewith I lay before you, in confidence, reports from the Departments of State and the Treasury, by which you will see the present situation of our affairs with the Dey and Regency of Algiers. G. WASHINGTON. UNITED STATES, January 9, 1797. _To the President of the United States, the Secretary of State respectfully makes the following brief representation of the affairs of the United States, in relation to Algiers_: When Colonel Humphreys left America, in April, 1795, he was accompanied by Joseph Donaldson, Esq., who had been appointed Consul for Tunis and Tripoli; and him Colonel Humphreys was authorized to employ in negotiating a Treaty with Algiers, while he should proceed himself to France, for the purpose of obtaining the co-operation of that Government in this negotiation. They arrived at Gibraltar on the 17th of May. Colonel Humphreys concluded that it was expedient for Mr. Donaldson to go first to Alicant, rather than Algiers, in order to be near at hand, to ascertain facts and profit of occasions. He gave him instructions accordingly; and having also instructed Mr. Simpson, our Consul at Gibraltar, to renew our peace with the Emperor of Morocco, Colonel Humphreys sailed from Gibraltar the 24th of May, and arrived at Havre de Grace on the 26th of June; from whence he set off immediately for Paris. The object of his mission was communicated by our Minister, Colonel Monroe, to the Committee of Public Safety. On the 1st of July he had received only a verbal answer, that the French Government was disposed to interest itself, and to do every thing in its power, to promote the accomplishment of our wishes on the subject in question. On the 28th, assurances were received that immediate measures should be taken for giving particular instructions to the agents of the Republic, to use its influence in co-operating with us. The multiplicity of affairs with which the officers of Government were occupied, and the getting from London a sum of money necessary to purchase the usual peace presents, prevented a conclusion of this arrangement at Paris until September. It had been judged expedient, by Colonel Humphreys and Colonel Monroe, that Joel Barlow should be employed in the negotiation with the Barbary States, and his consent had been obtained. By the 11th of September, all the writings on the part of Colonel Humphreys were prepared for Mr. Barlow, to proceed with the instructions and powers from the Government of the French Republic to its agents in Barbary, in favor of our negotiation. Colonel Humphreys left Paris the 12th of September, and reached Havre the 14th, where he found the master and mate of the United States brig Sophia, both sick with fevers. While waiting there impatiently for their recovery, he received intelligence from our Consul at Marseilles, that Mr. Donaldson had concluded a Treaty of Peace with the Dey of Algiers; nevertheless, Colonel Humphreys thought it expedient that Mr. Barlow should proceed with the presents prepared and preparing at Paris; for, if not needed at Algiers, they would be wanted in the negotiation with Tunis and Tripoli. About the 5th of October, Colonel Humphreys sailed from Havre, and after a stormy passage of more than forty days, arrived at Lisbon on the 17th of November. There he found Captain O'Brien, who had arrived about the 1st of October, with the Treaty with Algiers. On the 3d of September Mr. Donaldson arrived at Algiers, and on the 5th the Treaty was concluded, and the peace presents immediately given, by a loan. Mr. Donaldson, knowing that funds had been lodged in London to answer his stipulations, engaged to make the payments in three or four months. Colonel Humphreys had received advice, under date of the 30th July, from the Messrs. Barings, in London, to whom the funds had been remitted, that, having made progress in the sales of the United States' stock, they should hold, at his disposal, the whole of the value of $800,000, meaning to furnish, by anticipation, the value of that part which remained unsold, if the service of the United States required it. Colonel Humphreys, counting on the money as always ready after this period, sent Captain O'Brien from Lisbon to London, in the brig Sophia, to receive it. Owing to contrary winds, she did not leave Lisbon till the 24th of December. The other details, relative to the pecuniary transactions, appear in the report of the Secretary of the Treasury. The disappointments in the pecuniary negotiations, put the Treaty in jeopardy; the Dey threatened to abandon it, and it was with extreme difficulty that it was prevented. Mr. Barlow did not arrive at Alicant until February, 1796, where he proposed to wait the arrival of the funds: but, after a little time, his intelligence from Algiers showing that our affairs were in a critical situation, he determined to go thither immediately, with the hope of soothing the Dey. He arrived there the 4th of March; they had before prolonged the time to the 8th of April for the payment of the stipulated sums. On the 3d of this month the Dey declared what should be his final determination--that in eight days Mr. Barlow and Mr. Donaldson should leave Algiers; and if, in thirty days after, the money was not paid, the Treaty should be at an end, and his cruisers should bring in American vessels. Under these circumstances, and as the last hope of saving the Treaty, they were induced to offer the present of a frigate--this fortunately succeeded. For the particulars of this transaction, the Secretary begs leave to refer to the enclosed letter from Messrs. Barlow and Donaldson. Colonel Humphreys not deeming himself authorized to confirm this promise of a frigate, referred the matter to the Executive of the United States; and for this end despatched Captain O'Brien, in the brig Sophia, to America. There was evidently no alternative; and the promise was confirmed. The frigate is now building in Portsmouth, New Hampshire, and is expected to be finished in the spring. Captain O'Brien returned to Lisbon, where he arrived on the ---- of July. Colonel Humphreys had advantageously negotiated bills on London for $225,000. This sum was embarked on board the Sophia, and, on the 3d of August, Captain O'Brien set sail for Algiers. He has not since been heard of, and there is room to fear that some misfortune has befallen him. The money was insured at a small premium, against the danger of the seas; against all risks they demanded so high a premium as Colonel Humphreys judged it inexpedient to give, seeing the Sophia was a vessel of the United States, having a special passport from the President, as well as a passport in the Turkish language, under the seal of the Dey of Algiers. Such arrangements have been made by Mr. Barlow and Mr. Donaldson, at Algiers and Leghorn, as will doubtless insure the payment of the $400,000 originally expected from the latter place; and the same house have become engaged to the Dey and Regency for the residue of the money due as the price of peace, without which he would not agree to the redemption of the captives. The Secretary of the Treasury estimates these further sums to be provided to fulfil the terms of the Treaty $255,759 For two years' annuities to the Dey 99,246 To which are to be added the 10,000 sequins promised by Mr. Barlow and Mr. Donaldson, mentioned in their letter 18,000 And the expenses of the captives performing quarantine at Marseilles, and transporting them to America, estimated by the Consul at Marseilles, at about 6,500 ------- 379,505 On the 31st ultimo I received a letter from Mr. Barlow, dated the 13th of July, informing that the agent, Mr. Famin, at Tunis, who had been recommended to him by the French Consul Herculias, had concluded, with the Bey of that Regency, a truce for six months, from the 15th day of June last, and that without any presents. TIMOTHY PICKERING, _Secretary of State._ DEPARTMENT OF STATE, January 6, 1797. WEDNESDAY, February 22. _Mediterranean Powers._ The bill for making appropriations to defray the expense of negotiations with Mediterranean powers, was also read the third time. The provisions of this act, (which has been the subject of the various discussions which have lately taken place with closed galleries) are to the following effect: "That the President of the United States be, and he is hereby authorized to apply a sum not exceeding 255,759 dollars and three cents, to the expenses which may have been incurred in any negotiations with Mediterranean powers, beyond the sums heretofore appropriated; and that the said sum of 255,759 dollars and three cents, be, and the same is hereby appropriated for that purpose; and that a further sum not exceeding 96,246 dollars and 63 cents, be, and the same is hereby appropriated for discharging the two first years' annuity to the Dey and Regency of Algiers, pursuant to treaty, in addition to the gum appropriated for that purpose by the act of the sixth of May, 1796." On the question being put that the bill do pass, Mr. GREENUP said he never liked the bill in any shape whatever; he would therefore express it now. He then called for the yeas and nays, which were taken, and stood ayes 63, noes 19, as follow: YEAS.--Fisher Ames, Abraham Baldwin, Theophilus Bradbury, Nathan Bryan, Daniel Buck, Dempsey Burges, Thomas Claiborne, Joshua Coit, Isaac Coles, William Cooper, James Davenport, Henry Dearborn, George Dent, George Ege, William Findlay, Dwight Foster, Jesse Franklin, Nathaniel Freeman, jr., Albert Gallatin, Ezekiel Gilbert, Henry Glenn, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Carter B. Harrison, Thomas Hartley, Jonathan N. Havens, Thomas Henderson, William Hindman, Aaron Kitchell, John Wilkes Kittera, George Leonard, Matthew Locke, Samuel Lyman, James Madison, Francis Malbone, John Milledge, Andrew Moore, Frederick A. Muhlenberg, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, Elisha R. Potter, John Richards, Robert Rutherford, John S. Sherburne, Samuel Sitgreaves, Thompson J. Skinner, Jeremiah Smith, Nathaniel Smith, Israel Smith, Isaac Smith, Richard Sprigg, jr., Thomas Sprigg, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, and John Williams. NAYS.--David Bard, Thomas Blount, Samuel J. Cabell, Gabriel Christie, John Clopton, James Gillespie, Christopher Greenup, John Hathorn, John Heath, James Holland, Andrew Jackson, George Jackson, William Lyman, Samuel Maclay, Nathaniel Macon, William Strudwick, John Swanwick, Abraham Venable, and Richard Winn. On motion of Mr. GALLATIN, the title was changed to "a bill to authorize the PRESIDENT OF THE UNITED STATES to apply further sums to defray the expenses of the negotiation with the Dey and Regency of Algiers."[11] _John Cleves Symmes._ On motion of Mr. GALLATIN, the House took up the bill in addition to an act for granting certain lands to John Cleves Symmes and his associates; when Mr. COIT moved to strike out the first section. His object, he said, was to gain information, particularly with respect to the survey. Mr. GALLATIN (who was Chairman of the Committee which made the report) gave a concise history of the business; which satisfied Mr. COIT, who withdrew his motion; and the bill was ordered to be read a third time to-morrow. The particulars of this case are as follows: John Cleves Symmes and his associates entered into a contract with the United States in the year 1787, for a million acres of land in the North-western Territory, at a time when the geography of that country was not well understood. The tract was to extend twenty miles up the Great Miami to the Little Miami; but when this line came to be measured, it was found that it cut the Little Miami in several places on land which had been reserved by Virginia at the cession of this Territory to the United States. Mr. Symmes was down in the country before he knew the line thus drawn would thus cut into the lands of Virginia. The first thing he did was to take possession of the country which is between Fort Washington and the Little Miami, and to sell as much as he could of it. General St. Clair, the Governor of that Territory, threatened to drive Mr. Symmes and the settlers off this territory to which he had no right. The innocent settlers, who had purchased the land of Mr. Symmes, sent forward representations of their case to the PRESIDENT, which, together with the representations of the Governor, produced an act to change the boundary line of the purchase, which was passed April 12, 1792. This act describes the boundary line of the tract of land to be between the two Miamis and the Ohio. Mr. Ludlow was sent to survey it in 1793, when it was found, that instead of there being one million of acres, there were only five hundred and forty-three thousand nine hundred and fifty, which was duly surveyed, and the survey lodged in the Treasury Office on the 10th of January, 1794. Here arose the first difficulty. The act passed to change the boundary line could not take place without the consent of Mr. Symmes. In consequence, the law was said to be enacted at the request of Mr. Symmes. In 1794, Mr. S. had not made any request, consequently the law was a nullity. He might at that time have said, he would not have the land upon any other than the original contract, and that it was the business of the United States to make up the deficiency; and, if he had so acted, it is probable Congress would have been obliged to have found him one million of acres of land, agreeably to his contract; but, at that time, lands were not raised to so high a price as they were now, and Mr. S. did not think it necessary to avail himself of his contract. On the 11th April, 1792, a petition was presented in his name, stating, that from an advance in the price of certificates, resulted the impossibility of fulfilling his contract, and prayed that an abatement might be made in the price of the land. On the 27th September, 1794, instead of saying he would not abide by the new boundary, he requests an alteration may be made in the boundary. Notwithstanding this request, Mr. S. now says, he did not know any thing of the survey, though more than nine months since it was made. At first sight, it would be supposed the contract was void for want of fulfilment; but as he says he never received from the public a counterpart of the contract (though it is generally supposed he had in some way got possession of a copy, but no proof existing of it,) the claim was not forfeited. A circumstance was mentioned which seemed to convey a strong supposition that Mr. S. was acquainted with the survey. The day following the request he had made for the new boundary, was issued to him a patent for three hundred thousand acres, referring to that survey. Mr. S. now objects to the releasement which was given of his first purchase as not being complete. It was stated that he had taken possession of land to which he was no way entitled. The necessity of the act being immediately passed appeared from an advertisement (which Mr. GALLATIN read from a newspaper of that country) inviting persons to come and purchase, under an assurance that his original purchase would be completed. Mr. G. said that he had been offered some part of the land at a dollar an acre; he was informed that it would sell for two to settlers. Mr. G. said he knew it to be very capital land; and if the four hundred and fifty thousand acres which remained would sell for nine hundred thousand dollars, while he only gave three hundred thousand for the whole, he would have made a good bargain. THURSDAY, February 23. _Direct and Indirect Taxes._ INCOME AND EXPENDITURE. Mr. GALLATIN hoped that the motion would not prevail. He believed he was the only person who had said, that he was not desirous that the bill laying a direct tax should pass this session. For it was true, that, although he was a strong advocate for a direct tax--although he thought a sufficient permanent revenue could not be drawn from any other source, yet he did not wish the law to pass during the present session; and the reason was, because he had not a sufficient reliance upon his own opinion, to wish a subject of this sort to come into being against the opinion of so many members of this House as appeared to be opposed to it. When the United States shall think it necessary to go into the measure, he trusted it would pass with great unanimity. At present, he doubted whether a majority of the country was not against the measure, especially when he not only saw so great a division in that House, but apparently a local division, as he believed only four members East of Hudson's River, and but five South of Virginia had voted for the measure, by which it appeared to be a mode desired only by the Middle States. Until, therefore, gentlemen from those parts had returned home and consulted their constituents upon the subject; until he knew that the law could be carried into effect with more unanimity than at this time appeared, he did not wish to press it. He was willing, therefore, to take all the blame which was imputable to this circumstance upon himself. He never wished the powers of Congress to be exercised in a way which should not meet with pretty general concurrence. Yet, had he thought the situation of the United States had been such, that additional revenue was absolutely necessary to support the public credit, and it could not have been conveniently raised from any other source, every other consideration would have given way to that necessity. But he did not think that any thing which had been said by the gentleman from South Carolina showed that there would be any deficiency in the revenue for the present, which would require additional taxes to supply it. He would just observe, that the great argument in favor of direct taxes--an argument which had almost wrought conviction upon the mind of the gentleman from South Carolina himself--was the uncertainty of a revenue derived from commerce; and yet, from this circumstance, the friends of indirect taxes wish to extend that plan to the utmost, and raise every thing from it. He should have drawn different conclusions; and from that uncertainty, he should have wished never to have gone beyond those bounds which they knew were safe. As to the receipts of 1797, Mr. G. said, we had well ascertained them, because they arose from the importations of 1796, which they knew amounted to 6,200,000 dollars, and which sum, with the internal duties, would be fully adequate to the expenses of the Government for this year. Yet some gentlemen thought the calculation too close, and therefore the additional duties before them had been consented to, which he believed every one must acknowledge would be fully equal to any deficiency that could possibly arise. The arguments of the gentleman from South Carolina applied to the year 1798. He said we did not know what might be the amount of the importations of the present year; that it might be less than last year, and therefore, that revenue ought to be provided to supply the deficiency, if there should be any. The arguments would be good, if the gentleman's data were true; but he had forgotten that the expenses of 1798 would be less than those of the present year by 700,000 dollars, including not only the current expenses, but the instalment of the Dutch debts, which in that year would only be 100,000 dollars. The instalment this year is 400,000, so that in this item there will be a difference of 240,000 dollars; in the next place, the 280,000 dollars which this year has been agreed to be paid to the Dey and Regency of Algiers, will not occur again; and also, the 180,000 dollars appropriated for finishing the frigate, would not be to provide another year. These three items made the 700,000 dollars which he had mentioned. In addition he would add, that this year there had been a charge of 200,000 dollars for the defence of the frontier in 1795; but perhaps something might be wanted in that quarter another year, and therefore he would pass over that sum. But he thought there could be no danger of a want of revenue in the year 1798. Mr. G. said, he would not pretend to say that it would not be desirable to increase the revenue, in order that they might pay a part of such instalments of the foreign debt as would become due after the year 1801. Certainly the sooner our debt could be paid, the better; but he meant only to show that there was no necessity for increasing the revenue for 1798. If it were necessary to raise additional revenue, it would be for two principal objects, the payment of the Dutch debt and the eight per cent. deferred stock; but as these did not become due till the year 1801, they were not under the necessity of providing the means for it at present. During the next session, Mr. G. said, they should have time to compare the two systems of taxes together, and to discover which offered the best and most permanent sources of revenue. For the reasons he had given, he should be opposed to the motion. Mr. W. SMITH said, he should not adduce many arguments to show the propriety of advancing the duty upon this article any more than that upon any other; but he wished to bring before the committee a true statement of the receipts and expenditures of the United States, in order to show what sum of money would probably be wanted to answer the demands of the United States. As he differed considerably from the gentleman from Pennsylvania as to our real wants, he considered it as his duty to lay this statement before the committee. He had investigated the subject with as much accuracy as possible. He had attended to the documents which had been laid before them, to the laws which would probably pass this session, and to the probable increase of revenue. The result of this examination was, that there would be a deficiency of about a million of dollars. To what the additional imposts already agreed to would amount, he could not say, but he believed they would make 200,000 dollars, which would leave a deficiency of 800,000 dollars. He made the following statement: _Expenses of 1797._ Civil list, $634,322 Military and Naval Establishment and pensions, 1,284,532 Deficiency of 1796, 201,000 Algerine appropriation, 376,500 Interest of Domestic Debt, 3,471,972 Interest on Dutch debt, 614,241 Instalments do do. 1797, 400,000 Premium remitt. &c. 50,000 Appropriations for frigate, 171,000 --------- 7,213,567 ========= _Revenues of 1797._ Impost, $5,588,961 Internal revenues, 337,255 Post Office, 35,000 Bank stock, 150,000 Stock redeemed, 88,636 Sundries, 746 --------- 6,200,598 Additional imposts in 1797, 200,000 --------- 6,400,598 Probable deficiency of revenue, 812,969 --------- 7,213,567 ========= It would be observed, Mr. S. said, that the gentlemen from Pennsylvania and Maryland, had calculated the impost at 6,200,000 dollars, whilst he made it only at 5,588,961, which he took from the Secretary of the Treasury's statement, and he believed this was the safest calculation. He would not go into any very long argument on this subject, because it had frequently been under discussion. Mr. GALLATIN inquired from what document Mr. SMITH took his calculations? Mr. W. SMITH answered, from the report of the Secretary of the Treasury, which was calculated upon a permanent plan. In calculations on the subject of revenue, the largest amounts should not be taken. It was not policy in gentlemen to adopt that plan; they should make allowances for deficiencies and accidents. The situation of this country at present required it, and it would be safe, prudent, and discreet, to do so. The Secretary of the Treasury had estimated the internal revenue at 337,255 dollars, while those gentlemen made it 469,579. This they stated from the revenue of last year, which it was probable would be considerably more than this. He thought there was as much reason for taking one as the other statement; and the Government would be exposed to hazard and danger, unless allowances were made for deficiencies. The deficiency, according to his calculation, was 1,012,969 dollars, and after deducting from that sum 200,000 for the additional duties in the bill before them, there would remain a balance of 812,969 dollars. Admitting the gentleman's own statement to be true, there would still be a deficiency of 100,000 dollars, and this without making any allowance whatever for accidents and occurrences which will always happen, without making any provision for the purchase of the public debt, which might at this time be purchased to great advantage. If there had been money in the Treasury for the purpose, instead of paying the debt at par, it might have been bought up at 16 or 17s. in the pound. And he was of opinion, from the present situation of things, the public debt would remain low, and that a surplus in the Treasury might be well employed in purchasing it. So much for the revenue and expenses of the present year. With respect to 1798, there was no necessity to go much into that subject. The gentleman from Pennsylvania had estimated the instalment of the Dutch debt, payable in this year, at 160,000 dollars only; but he asked whether it would be wise to pay only that sum? And whether it had not been in the contemplation of that gentleman, as well as others, to pay as much as they could yearly? He knew they should not be obliged to pay more; but he believed it would be a wise policy to pay an equal sum every year. That gentleman made another deduction of 280,000 dollars, which had been granted to the Dey and Regency of Algiers this year; but might they not expect items which they did not contemplate, to this amount? Contingencies, he said, occurred, which always swelled the expenses greater than were contemplated. There was always something of an extraordinary nature occurring to call for money; either an Indian war, or insurrection, depredations of foreign powers, or attacks by the Algerines. There was no guarding with certainty against them. The next deduction was 100,000 dollars for the frigates. Whether this would be saved or not, was uncertain. The next House might agree to go on with the frigates. Upon the whole, Mr. S. said, it would be prudent to provide a sufficiency of revenue, and there was no prospect of getting it from any other than the objects contained in the bill before them. A land tax was agreed to be laid aside for the present, as gentlemen from the Eastward seemed wholly against it, and those of the Middle States seemed to have grown lukewarm upon the subject. The duty on stamps, which would have provided considerable revenue, was also laid aside. They had agreed to lay low duties upon distilled domestic spirits; no increase could therefore be expected from that quarter. They could, then, only resort to such articles of impost as would be likely, from their general demand and other circumstances, to produce additional revenue. As, therefore, no prospect appeared of getting other revenue than by the article before them, he should be compelled to agree, though with reluctance, to the advance of the duty on sugar. With respect to their lands, they had authorized public stock to be received in payment; and, though he thought this a very valuable regulation, both for facilitating the sale of the land, and for paying off the debt, the lands, on this account, would not produce much cash into the Treasury. Mr. S. SMITH said, very early in the present session, he read, with some attention, the report of the Secretary of the Treasury on the subject of direct taxes. He cast his eye upon certain articles which he thought proper subjects upon which to raise further sums from indirect sources, among which were salt, sugar, tea, and the whole of the 10 per cent. class of goods; he communicated his sentiments to other gentlemen, and they had been brought forward. He supposed the House would have gone into a system of direct taxes. This he had always considered as a difficult subject, and he never could, himself, form a plan adequate to effect it; but he was desirous that the subject should have been taken up, that in case of extremity it might be called into operation. He did not think any immediate wants of the revenue required this tax to be put into execution, but he wished to take it into consideration, to see what could be done with it. He had still his doubts whether it could be carried into execution; if it could, it would doubtless form a valuable source of revenue, which could not be injured. He had no doubt, however, of the present revenue being equal to our present wants. The gentleman from South Carolina (Mr. W. SMITH) had taken his calculations from the report of the Secretary of the Treasury; but the Secretary went into a permanent calculation for a period of 18 years, in the course of which he calculated the sinking of the whole debt. The trade of 1796, Mr. S. said, would give nearly a million of dollars; of course there could be no apprehensions upon the minds of gentlemen that the receipts of 1797 would not be equal to the wants of Government. The tax upon sugar would produce 300,000 dollars. The gentleman from Pennsylvania (Mr. GALLATIN) was correct on this subject. The gentleman from South Carolina (Mr. W. SMITH) had said, it was not wise to calculate upon the highest returns; but Mr. S. SMITH said it was right to calculate upon a preceding year, and when they knew that there would be received in this year from 700,000 dollars to one million, there could be no doubt of the year 1798 falling far short of that sum. For he was not one of those who thought the revenue arising from this year would be much inferior to that arising from the last. The gentleman from South Carolina (Mr. HARPER) had supposed that the British spoliations had not affected our revenue, but that those of the French would be severely felt. He saw no difference between them, and believed they would be felt alike in proportion to their extent. [Mr. HARPER explained.] He believed the United States would only consume a certain portion of the goods imported; the rest would be re-exported, and the drawback received upon them; and, as he did not believe the consumption of the United States had been lessened, it would follow that it had been the re-exportation which had been diminished, and, of course, that it would not be the duties which would be decreased, but the drawbacks. This being the case, little was to be apprehended from a defalcation of the revenue this year. Indeed, he was of opinion, that the revenue arising from the present year, would be equal to any preceding year. The expenses of 1797 would be as follows: ESTIMATE FOR THE YEAR 1797. Instalment due on part of the Dutch debt, with interest on the whole debt, together about $ 992,000 Annual 8 per cent. and 6 per cent. stock, 2,324,175 Annual interest on 3 per cent. do. 587,926 Ditto on 5-1/2 per cent. do. 101,689 Ditto on 4-1/2 per cent. do. 7,920 Ditto on supposed unfunded debt, 78,261 Ditto on Bank loans, 372,200 ----------- 4,463,971 Internal expenditures (as below) 2,255,255 ----------- $6,719,226 =========== Civil List, Mint, and Diplomatic, (agreeably to the Secretary's report, estimated on the session of six months,) $564,753 Deduct savings arising on the session of four months only, 52,800 ----------- 511,953 Bill for foreign intercourse, 40,000 Light-houses, 45,647 Miscellaneous claims, 12,000 ----------- $609,600 =========== MILITARY DEPARTMENT. Pay of four regiments and artillery corps, $256,450 Subsistence, 236,900 Clothing, 75,000 Bounties, 16,000 Hospital Department, 25,000 Ordnance 40,000 ----------- 649,350 Amount brought forward, $649,350 Two instructors, 1,450 Quartermaster's Department, 150,000 Defensive protection, 60,000 Indian Department, 90,000 Contingencies of War Department, 15,000 Repairing fortifications, 20,000 Military Pensions, 93,350 Naval Department, 190,000 Balance due on Algerine business, 376,505 ---------- Internal expenses of 1797, $2,255,255 The expenses of the Quartermaster's Department would in future be considerably lessened; for, said Mr. S., heretofore great expense had been incurred by land carriage, which in future would be avoided, as the forage would all be conveyed by water. Indeed it had not been an unusual thing for the horses employed in conveying forage from one post to another, to eat the whole of it in their journey to and from their destination, and some horses had been known to die from want on the road. The conveyance being now by water, a great destruction of horses would be prevented, and he doubted not that one hundred thousand dollars would be saved under this head. FRIDAY, February 24. _Amy Dardin._ The House proceeded to consider the report of the Committee of Claims, of the sixth ultimo, to whom was referred the petition of Amy Dardin, which lay on the table; whereupon, the said report was read at the Clerk's table, in the words following, to wit: "That the most important, and all the material facts respecting this claim, are stated in the former report of the committee appointed to consider the said petition. To that report the committee now ask leave to refer. Whatever justice there might originally have been in this claim against the United States, it is now, and for many years past has been, as clearly within the statutes of limitation, as a multitude of others, which have been rejected. The committee regret that no relief can, with propriety, be granted to the petitioner, upon her application. So many evils would result from a suspension of the limitation act, for the admission of claims similar to the one under consideration, the committee cannot recommend that measure to be adopted. They are of opinion the prayer of the petition ought not to be granted." The question was taken that the House do agree to the said report, and passed in the negative--34 to 27; when Mr. GALLATIN moved that a committee be appointed to bring in a bill in favor of the petitioner. This motion occasioned some debate. Mr. GALLATIN said, he rejoiced in the vote which had passed in respect to the report before them, as it was a precedent against the act of limitation. When a claim was clear, it was a denial of justice not to pay the debt. He did not think it was more justifiable in a Government to refuse to pay its debts, than it was in individuals to do so. Though an act of limitation had been passed, they ought only to consider it, in a modified sense, as a guard against fraud; but, in cases where they were convinced a debt was justly due, he did not see upon good principles they could refuse to pay it. He was sure there was not a member on that floor that would do so in his individual capacity. Nor did he believe they needed to be operated on by the fear of a number of these claims being brought: he believed their number was small. But, said he, shall we fear that we shall be called upon to pay a few more just debts? He trusted so unworthy an apprehension would not prevent them from doing what was right. The act of limitation was produced, he said, by an incapacity to pay the claims which were made upon Government, and now they took advantage of that capacity, by refusing to pay the just demands which were made upon them. The certificates which had been given, not worth more than one-eighth of their nominal value, had been scattered all over the United States, and the distance from the seat of Government had been the reason application had not been made for payment. He spoke from his own knowledge. He had some of them put into his hands. Some of them he was fortunate enough to get paid before the act of limitation passed; others were yet unsettled. It was only since the erection of this Government, which had given them the ability to pay, that these claims were brought forward; for six or seven years every kind of claim was mustered, and the public debt was considerably swelled by them, but now a contrary extreme was observed, and no claim, however just, had a chance of being satisfied. He had never troubled the House on a subject of this kind before, but he had taken advantage of the fortunate decision of this morning to say a few words on the subject. Messrs. HEATH, MACON, WILLIAMS, and D. FOSTER, were against a committee being appointed to bring in a bill; they hoped no partial regulation would take place, but that if any exception was made, from the operation of the act of limitation, it would be done in a general way, as there was a great number of claims equally well entitled, with Mrs. Dardin's, to payment. Indeed, Mr. D. FOSTER, Chairman of the Committee of Claims, (who was not present when the question was taken upon the report,) said, if this claim was granted, it would bring forward a thousand others. The report, petition, and papers, were committed to the whole House on Monday. SATURDAY, February 25. _Suability of States._ On motion of Mr. HARPER, the House then resolved itself into a Committee of the Whole, on the report of the select committee on the resolution sent from the Senate, authorizing the PRESIDENT to make inquiry of certain States whether they had adopted the proposed amendment to the constitution with respect to the suability of States. The select committee did not confine themselves to this single amendment, as reported from the Senate, but went back to the year 1789, when twelve amendments were proposed by Congress; for though they state eleven States out of fourteen had ratified ten of these amendments in the year 1791, yet they were of opinion that a doubt might arise whether eleven States ought to be considered as the three-fourths of fourteen; they therefore wished the PRESIDENT to be requested to make inquiry also from the non-ratifying States on the subject of these ten amendments. Mr. NICHOLAS said, the resolution of itself was only exceptionable as it had connection with the statement which went before it, in which it was made a question whether the ten last amendments of the twelve proposed by Congress to the States in March, 1789, were ever made part of the constitution. He did not wish a doubt to be expressed on this subject. This doubt, in the opinion of the committee, it seemed, rested on a supposition that eleven were not three-fourths of fourteen. He could not conceive how any doubt could arise on this subject, since it must be acknowledged by every one that eleven was more than three-fourths of fourteen. If the objection arose from fourteen not being divisible in equal fourth parts, it was an objection to the constitution as originally made. It was formed by thirteen States, which was no more divisible into fourths than fourteen. On this ground, an amendment could never have been made to the constitution. He hoped the Chairman of the committee would give them some information on the subject. Mr. HARPER said, it was not of much importance whether the committee had doubts, or whether those doubts were well founded. The committee stated they had these doubts. He had them; not whether eleven was three-fourths of fourteen, according to arithmetical calculation--every school boy knew, that, in that view, eleven was more than three-fourths of fourteen; but it was, whether you could make a division of States. He believed it could not be done; he believed there must be twelve ratifying States to be three-fourths, as intended by the constitution, because that number would be three-fourths of sixteen, which was the nearest number to fourteen capable of four equal divisions. Whether this doubt was well founded or not, there could be no harm in directing the inquiry to be made; it would be made as soon for thirteen amendments as for one, and if any other State should have ratified the ten amendments in question, all doubt would be removed. Mr. H. noticed an error or two which had escaped the committee in their report. Mr. GALLATIN said, the resolution under consideration went to direct the PRESIDENT to apply to all those States, by whom, as far as can be known from the official documents heretofore transmitted, all or any of the amendments at any time proposed by Congress still remained to be ratified. There could be no occasion to make the inquiry with respect to all these amendments, unless it were taken for granted that none of them had yet been ratified. He was, therefore, of opinion, with the gentleman from Virginia, that such an application would be very improper, as bringing the ten last amendments into doubt, which he believed to be as much a part of the constitution as any other article in it; he also thought them a very valuable part, and not to be trifled with. But, upon what ground, said Mr. G., do the advocates of this report prove that 11 is not three-fourths of 14? The idea was so novel that he could scarcely understand what principle they adopted in order to create a doubt on their minds on this subject. To him the position that 11 was more than three-fourths of fourteen appeared to be one of those self-evident axioms which hardly admit of a proof. The principle on which the doubt arose must be so very nice, so abstract, that he did not know whether he was capable of comprehending it. Anxious as he was to avoid saying any thing which might be construed as misstatement, he would, however, attempt to analyze what he conceived to be the ground of the gentleman from South Carolina, (Mr. HARPER.) It appeared to him that that gentleman thought three-fourths in itself was not a fraction of the unit, was not a number conveying to the mind the simple idea of a fraction; but that it was a compound of fractions, and that the only way by which the idea of three-fourths could be conceived was by a decomposition. Because the idea of three-fourths was by our numerical arithmetic expressed by the two figures 3/4, that gentleman was unable to conceive what it meant except by decomposition, by dividing the unit into four equal parts and multiplying the result by 3. And if that idea of three-fourths had happened to be expressed by the fraction nine-twelfths, (which was the same thing as three-fourths,) that gentleman could not have conceived it except by dividing in the first place the unit into twelve parts and then multiplying the result by nine. In fact he denied the existence of any number, part of a unit, except as it consisted of an aggregate of such parts as the unit could exactly be divided into. Thus, when speaking of fourteen States, although he (Mr. GALLATIN) could at once understand that three-fourths of fourteen was ten-and-a-half, and, therefore, (admitting, as he did together with that gentleman, that the vote of a State was indivisible) that eleven States were more than three-fourths of fourteen, the gentleman from South Carolina proceeded in a different way. The fourth part of fourteen being three-and-a-half, he says that, as a State cannot be divided, you must take four States instead of three-and-a-half for the fourth part of fourteen, and then multiplying these four States by three, in order to get the three-fourths, he concludes that twelve States are three-quarters of fourteen--that the twelve States out of fourteen are necessary to ratify the amendments. He believed the gentleman would allow that he had not misstated his opinion. Let us now see, said Mr. G., how this doctrine will operate. It would go to prove, in some instances, that three-fourths of a number is greater than the whole. Suppose, for instance, the case of five States. One-fourth of five is 1-1/4; but as the vote of a State cannot be divided, you must call it two; or, as the gentleman expressed it, five not being divisible into four equal parts, you must take the nearest number to five capable of such division, that is to say 8, the fourth part of which is two; two, therefore, must be considered as the fourth part of five States, and as three multiplied by two is six, it follows, according to that gentleman's doctrine, that the three-fourths of five is six! Suppose that, in the constitution, instead of the expression three-fourths, it had been said that nine-twelfths were necessary. The number of States when the constitution was framed was thirteen. In that case one-twelfth of thirteen being one and one-twelfth, you must, the vote of a State being indivisible, call it two; so that in that way of reckoning, nine-twelfths (which is the same thing as three-fourths) of 13 is 18! Consequently, the consent of eighteen States would have been necessary in order to ratify any amendment to the constitution of a nation consisting only of 13 States. Let us, said he, examine a little farther. The same part of the constitution which provides for amendments of the constitution, says, that an amendment shall be proposed by two-thirds of both Houses of Congress; but he supposed the vote of a man was no more divisible than that of a State. He wished to know, therefore, how the gentleman would, on his principle, calculate what were two-thirds of the members present when their whole number was not divisible by three? In making treaties he wished to know what was meant by two-thirds of the members of the Senate present? If the number present happened not to be divisible by three, would that gentleman say, that, in that case, the next number above the number present must be taken, which would be divisible by three, and that if two-thirds of that number did not concur in the vote for the treaty, no treaty should be ratified? On that principle, in some instances, a greater proportion of the Senate would be necessary to ratify a treaty than had been usually understood, according to the generally received opinion of the sense of the constitution in this respect. Upon the whole, he believed it would be best to reject the report, as, besides the objections alluded to, it was confessedly inaccurate in some of its parts, and adopt the resolution sent from the Senate, which applied only to the amendment respecting the suability of States. If the House meant to go any further, they might introduce the first and second amendments proposed at the same time with the other ten, but which had not yet been ratified. Mr. HARPER said, he would add a word or two to what he had already offered on this subject. He did not know whether the House thought with him on this subject, that it was a doubtful point whether the ten amendments in question had been ratified according to the sense of the constitution. If they did, they would of course, vote for the report. The gentleman from Pennsylvania, he acknowledged, had not only shown his knowledge in arithmetic, but also his wit, which had not until now been brought before them. In the enjoyment of the last he had participated in common with the House. Mr. DAYTON (the Speaker) was in favor of rejecting the resolution reported by the select committee, as it embraced too many objects, and held out a kind of invitation for States to come forward and propose amendments to the constitution. He trusted the first of the amendments, proposed in 1789, relative to the proportion of representation, never would be agreed to, as it would have extremely mischievous effects. Indeed, if any thing were done with respect to that amendment, he should think it ought to be to request those States which have not adopted it, not to do it, and those who have agreed to it, to revoke their vote in favor of it. The question was then taken on the resolution reported, and negatived, without division. The resolution was as follows: "_Resolved_, That the President of the United States be requested to apply, as speedily as may be, to all those States, by which, as far as can be known from the official documents heretofore transmitted, all or any of the amendments, at any time proposed by Congress, still remains to be ratified; and to obtain from them authentic information of the proceedings had by them, respectively, on the subject of those amendments, or any of them." The question was then taken on the resolution of the Senate, and agreed to. It was as follows: "_Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That the President be requested to adopt some speedy and effectual means of obtaining information from the States of Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, Kentucky, Tennessee, and South Carolina, whether they have ratified the amendment proposed by Congress to the constitution, concerning the suability of States: If they have, to obtain the proper evidences thereof." _Accommodation of the President._ On motion of Mr. GALLATIN, the House resolved itself into a Committee of the Whole on the bill to accommodate the PRESIDENT OF THE UNITED STATES; when Mr. HENDERSON said, he wished for information on this subject, as he had not sufficient to convince him of the propriety of granting 14,000 dollars, in addition to the furniture now in possession of the PRESIDENT; he therefore moved to strike out the 14,000, for the purpose of inserting 5,000. The bill informed them that this sum, in addition to what might arise from the sale of such of the present furniture as may be decayed, out of repair, or unfit for use, was to be laid out in furnishing the household for the PRESIDENT. It was very lately that they had received a proposition from the Senate to advance the salary of the PRESIDENT 5,000 dollars; the bill was rejected by that House. It appeared to him that this bill went to effect the same thing in a different way. If the object was merely to furnish the household of the PRESIDENT, he thought a much less sum would be adequate to that purpose. He thought 5,000, with the proceeds of the sale of such of the present furniture as was unfit for service, might be sufficient. He had no doubt that the sum would make the furniture of the PRESIDENT for four years to come equal to what it had been for four years past. Mr. NICHOLAS wished the gentleman would leave the sum blank, instead of inserting 5,000. Mr. HENDERSON consented. The question was taken, and negatived--42 to 39. The committee then rose, and the House having taken up the subject-- Mr. NICHOLAS said, as a majority of the House was against striking out this sum, he wished to have some information why this sum was fixed upon, and for what purpose it was to be applied. No one wished more than he did to place the PRESIDENT in a situation conformable to his station; but according to his information, this sum was more than was given to the present PRESIDENT on his entering upon the office, though there remained the whole of the furniture, most of which was worth as much at this time as it was when first purchased. Mr. SITGREAVES said, he would give to the gentleman all the information which he had on the subject. In the year 1778 or 1779, by a resolution, of the old Congress, an household was established for the PRESIDENT of Congress. This remained until the present Government went into operation in the year 1789. It was then resolved, that Mr. OSGOOD should be requested to fit up the House in a proper manner for the reception of the PRESIDENT OF THE UNITED STATES. In that year the law passed for compensating the PRESIDENT OF THE UNITED STATES, which enacted that a salary of 25,000 dollars should be allowed him, together with the use of the furniture then in his possession belonging to the United States. This furniture cost the United States 13,657 dollars, 83 cents. During the period from 1779, when the household was first established until 1789, when the PRESIDENT OF THE UNITED STATES entered upon his office, the furniture which had been purchased for the PRESIDENT by Congress, was so much decayed, that it required nearly 14,000 dollars to replenish it. It was the opinion of the joint committee, therefore, that in a lapse of eight years, viz: from 1789 to the present time, the furniture then purchased must have experienced equal dilapidation and decay, and that a sum at least as large as was then allowed (particularly when it was considered that the price of goods was very much advanced since that time) should now be allowed for putting the present household upon the same footing of respectability and convenience with that at New York in 1789. Mr. S. did not know that he could give any further information on the subject. It was a matter of notoriety that a great part of the goods then purchased were worn out and destroyed; such as the household linen, crockery ware, &c., and that the PRESIDENT had renewed them at his own expense; insomuch that if he were to take out of the House the furniture which he had supplied, there would little remain in it besides tables, chairs, bedsteads, and a few such articles; since all the carpets and ornamental furniture of the House had been purchased by himself. Whilst he was up, he would wish to obviate the only objection which had been adduced to this bill. The gentleman from New Jersey (Mr. HENDERSON) had supposed that this allowance was meant to carry into effect what had been rejected in another way, alluding to the proposed advance of salary. That gentleman might see a very obvious distinction between the two things. If $5,000 had been added to the salary of the PRESIDENT, he could have disposed of it as he pleased; but the money now proposed to be granted, was to be employed in the purchase of furniture, &c., which would remain the property of the United States, and would devolve upon the next PRESIDENT. Mr. S. said, he would add, that in the joint committee there was not a dissenting voice to the proposition, and he hoped there would not be one in the House. The question was put for engrossing the bill for a third reading, and carried, there being fifty votes in favor of it. This day and Monday were mentioned for the third reading; the question was carried for the most distant day, 40 to 35. MONDAY, February 27. _Accommodation of the President._ The bill to accommodate the PRESIDENT was read the third time; when Mr. HEATH moved to have the bill recommitted, for the purpose of striking out $14,000 to insert $8,000. He thought $14,000 too large a sum to be given to purchase new furniture; $8,000 he thought would be a sufficiently handsome sum for the purpose. They were apt to be too lavish with the public money on some occasions, and too sparing on others. He had not been satisfied with the reasons which had been given by the Chairman of the committee for giving the sum now in the bill. At a time when our Treasury was so much in want of money, he did not wish so large a sum to be given for this purpose; nor did he think it necessary, except it were to put our PRESIDENT in the style of a potentate or prince. And this he was sure the PRESIDENT OF THE UNITED STATES would not wish, as he believed he was a gentleman of great economy, and would spurn at any thing like tinsel or expense. Five thousand dollars had been thought a sufficient sum for this purpose, but he was willing to give $8,000. He hoped the bill would therefore be recommitted, and this sum be inserted. Mr. MACON seconded the motion for recommitting the bill. He was against it altogether. He did not see why they should furnish the house of the PRESIDENT any more than that of any other of their officers. He thought the thing improper at first, and that it was wrong to continue the practice. If the salary was not large enough, it should be made larger, though he thought it sufficiently large. Mr. RUTHERFORD concurred with his colleague, Mr. HEATH. It was necessary, he said, that Republicans should be consistent. If we thus give away the people's money, said he, shall we not be charged with rapaciously putting our hands into their pockets? Have we not, he added, refused to redress grievances and injuries, and to do justice to many deserving and distressed citizens, because our Treasury is low? And shall we now, when there is no right reason for it, lay hold of the public Treasury, and lavish away $14,000? For what? For adding new furniture to the house of the PRESIDENT. No; he was willing to render him all possible respect; he remembered well his letter to our sister Republic of Holland. He had a pretty good memory. He remembered well his patriotism; but he saw no reason to give him $14,000. He would give him $8,000, which he thought would be a very pretty compliment; but to give $14,000 would outrage every idea of that economy and Republican simplicity which ought to characterize the American nation. Why, said he, shall we, who are a Confederacy of the Democratic Republicans, everlastingly keep our eyes upon the pageantry of Eastern Courts? Let us rather attend to our own character than that of any despotic nation upon earth. He hoped the bill would be recommitted. The question for recommitting was carried--45 to 40. The House accordingly resolved itself into a Committee of the Whole on the bill, when-- Mr. HEATH moved to strike out $14,000 and insert $8,000. Mr. GILLESPIE called for the estimate, which he understood was in possession of the committee. Mr. SITGREAVES said there was no estimate before the House or committee. All that he had seen was a list of the furniture which had been purchased for the PRESIDENT in 1789. He himself had not had patience to go through it; but if the gentleman wished it, it might be read to the House. Mr. HARTLEY hoped there would have been no objection to this appropriation. He thought the Chairman of the committee had fully shown the propriety of granting the $14,000 to the PRESIDENT, who was not merely an officer of the Government, but a branch of it. It was not giving the money away, but merely advancing it on account of the United States. He was not in favor of high salaries, but he wished the situation of the PRESIDENT to be made comfortable and respectable. Mr. HEATH said, he believed a great part of the furniture which was purchased in 1789, was at present as good as when laid in; this was particularly the case with respect to the mahogany furniture; and he thought the $8,000 would be a sufficient sum to replace all articles of a perishable nature, such as carpets, linens, &c. Mr. HOLLAND was in favor of striking out, because it was only necessary to appropriate as much as might be necessary whilst Government remained here, as, when it should be removed, the furniture now used might not be suitable for the house at Washington. At that time, he supposed a further sum would be called for, and therefore he thought a less sum than $14,000 would be sufficient for the present purpose. Mr. WILLIAMS was in favor of the bill as it stood. He had been told that it was the intention of the State of Pennsylvania to make an offer to the PRESIDENT of the house which had lately been erected in this city; if so, perhaps the furniture which might be purchased for it would be suitable for the house in the Federal City. He had before said that he thought it would have been better to have augmented the salary of the PRESIDENT, and let him purchase his own furniture. But as that had not been agreed to, he wished the committee now to rise and report progress, that information might be gained on the subject; because he thought if he was to have that house, that sum would not be too large. Mr. SITGREAVES said, he did not know whether the Legislature of this State would conclude to make the PRESIDENT the offer which the gentleman last up had mentioned; but of this he was sure, that if they did, he could not afford to accept of it. For, if this bill passed, he was certain that, under such circumstances, he could not remove into that house, because he would not be able to furnish it. Mr. S. said, he was surprised the House should so suddenly change their opinion. He thought he had given sufficient information on the subject to have shown the necessity of the grant. [Mr. S. here repeated what he had before noticed respecting what had been allowed on a former occasion.] When gentlemen entered minutely into the subject, they seemed to have information which was not very correct. He believed the sum mentioned in the bill not more than sufficient. The decay which had taken place in the PRESIDENT's household would require that sum to make it good. The gentleman from Virginia supposed there were many articles, not perishable in their nature, which could not have been injured by their use. He was mistaken. There was nothing but about $800 worth of plated ware and the mahogany furniture which could at all come under this description. Indeed, any gentleman who was in the habit of paying his respects to the PRESIDENT OF THE UNITED STATES must have seen with regret that the appearance of his furniture was so far inferior to that which was to be found in the houses of any of our wealthy citizens, or even of those in moderate circumstances. When this was a notorious fact, what ground, he asked, could gentlemen have for comparing the household of the PRESIDENT to the pomp and splendor of Eastern Courts? On the contrary, he thought there was a humility of appearance in the house of the PRESIDENT, which he would not say was a disgrace to the country, but which at least proved its rigid economy. Mr. NICHOLAS said he voted for going into Committee of the Whole on this subject from an idea that the sum proposed to be given to the PRESIDENT was larger than was necessary, though he confessed he could not say what that sum ought exactly to be; he was for giving enough and rather too much than too little. Indeed, when he considered that the whole sum was not to be expended, except it should be found necessary, and that a certain style was expected to be observed in this station, he was not for stinting the sum to what he thought just enough for purchasing furniture. If the whole of the money granted must of necessity be expended in furniture, he should have had more hesitation on the subject; but as the expenditure would be left to the discretion of the PRESIDENT, he could not suppose, from the well-known habits of economy of that gentleman, it would be improperly disposed of. He therefore felt no difficulty in agreeing to the sum in the bill; for though he thought the sum too large, yet he would not so confine the appropriation as to oblige their officer to go about the streets to look out for cheap purchases of furniture. Mr. BUCK said, previous to these measures being brought forward, they had decided against any advance to the salary of the PRESIDENT. All that time a committee was appointed to inquire into the state of the PRESIDENT's household, and to report whether any, and what, further accommodation was necessary to be afforded. He conceived that it was the wish of that House that the gentleman who was coming into office should have accommodations equal to those which had been given to the gentleman who was leaving it. The committee had examined into facts, made a report, and a bill had been brought in accordingly. The committee had informed them upon what principles they had acted; and it did not appear that they either intended to increase the splendor of the household of the PRESIDENT, nor to add to his salary. If any member could come forward and show that the report of the committee was erroneous, they should have some ground upon which to reject it. He had heard no man say this, and therefore all that had been offered on the subject ought not to weigh against that report. When the bill was before them on Saturday, there was a considerable majority in favor of it, and as they had no new information on the matter, he saw no reason for a change of opinion. Some members, Mr. B. said, had held out an idea that they were about to give this money away, to enable the new PRESIDENT to live in the style of foreign Courts. If the inhabitants of this city had adopted this style, then it would be chargeable against the PRESIDENT, but not otherwise, since it was acknowledged he had not kept pace with them in this respect. The appropriating this money would only be converting it into so much public property; for, when his term of office should expire, he could not carry away a single article. It was not, therefore, giving away a farthing, but merely providing for our own convenience to enable the PRESIDENT to fill the office with comfort and reputation; and as they had nothing before them to show the sum too large, he saw no propriety in rejecting it, for the purpose of inserting any other. Mr. RUTHERFORD said, if the House had committed an error one day, it would be well for them to correct it another. If they were to give $14,000 away on the present occasion, he thought they would commit a very serious error. The gentleman from Pennsylvania (Mr. SITGREAVES) had said many of the citizens of Philadelphia lived in a superior style to the PRESIDENT. If so, he would say they were very bad citizens, since it was proper that the citizens of this rising Republic should cultivate a simplicity of living and of manners. Mr. MACON thought some of the arguments introduced on this occasion were very improper; such as the habits of economy or private fortune of the gentleman who was to succeed to the Presidential chair. They were about to settle a permanent principle, which it was proper to do at this time, before a new Presidency commenced. He knew nothing of the private property of the person who was to fill the office, nor had it any thing to do with the matter. The question was, whether they were to go over the same ground every four or eight years of furnishing the house of a new PRESIDENT? He did not wish that it should be so; he wished the salary to be the only consideration which the PRESIDENT should receive for his services. If it had not been settling a permanent principle, he should not perhaps have opposed it. It had been said that the old PRESIDENT of Congress had a household furnished him, but he received no salary from the United States except his household. He considered this sum as an advance upon the salary paid to the PRESIDENT by the different States, and before any salary was fixed by the United States; but now, as an ample salary was paid to the PRESIDENT, he did not think such a provision should be continued. It was sometimes said that it was no matter what sum was appropriated, as, if it was not wanted, it would not be expended; but, he believed, whatever sum was appropriated would be expended; for he was not one of those who thought that revenue could not be found. He believed if the money was granted, it would be both found and spent. Mr. SITGREAVES wished to correct the gentleman last up with respect to one fact. He had said the PRESIDENT of the old Congress had no salary. It was true that he did not receive any thing under that name, but there was a provision, not merely for the furniture of his house, but for the constant provision of it; and this was so considerable that from 1778 to 1779, in one year, eighty-three thousand dollars were paid for that purpose. Mr. MACON wished to know what sort of money this was; he supposed it was in depreciated paper. Mr. SITGREAVES was not certain what kind of money was meant. Mr. JEREMIAH SMITH said, in settling an affair of this kind, it was proper to have respect to the office, and not to the man who was to fill it. He could himself consider the establishment of the PRESIDENT's household in no other light than in the nature of a compensation for his services, in the same way that he considered the privilege of franking, stationery, and newspapers, allowed the members of both Houses, to be such; because, if they were not allowed to them, they would have to purchase those articles themselves; and if furniture was not provided by Government for the house of the PRESIDENT, he must himself furnish it out of his salary, or from his private purse. To refuse to provide the necessary furniture would therefore be to reduce his salary; for it was true that this plan of presenting furniture to the PRESIDENT was adopted before the salary was fixed, so that it must have been considered as being additional to the salary. And was that salary, he asked, near so valuable now as it was when fixed? Certainly not. He trusted, therefore, they should not reduce it. This sum, Mr. S. said, was mentioned, from a consideration that four years hence the seat of Government would be removed, and that then the furniture would be in a great degree useless. They, therefore, only recommended such a sum as they thought would be sufficient to put the furniture in a proper state for that term. He believed that fourteen thousand dollars would not do more than that. Mr. MACON said he was always opposed to the privileges allowed to members of franking, &c. Gentlemen talked about a statement; he did not know what that might contain, he had not seen it; but he did not know how it could require fourteen thousand dollars to repair furniture which at first cost only thirteen thousand. Mr. JEREMIAH SMITH said, the gentleman last up was inaccurate in his statement. The thirteen thousand dollars which were allowed for furniture for the late PRESIDENT, was in addition to the furniture which had already been in possession of the PRESIDENT of Congress. Mr. SHERBURNE said, the question was with respect to the quantum of money to be granted, as every one seemed to allow that a certain sum was necessary. By having recourse to what was done for other officers of the Government, they might, perhaps, form an estimate of what would be reasonable on the present occasion. A practice had been established of allowing our Ministers to foreign countries a sum as an outfit equal to one year's salary; so that nine thousand dollars were allowed a Minister for this purpose, though it might happen that he would not be employed more than a few months in the service. He thought, therefore, that fourteen thousand dollars could not be thought too large a sum for the PRESIDENT OF THE UNITED STATES, whose term of service was for four years, and which would go to his successor in office; whereas, the nine thousand dollars allowed to a foreign Minister were entirely at his disposal, though he might not be in the service more than a month. Mr. AMES said, it appeared to him that it would be desirable to proceed according to precedent, as nearly as they could. It was not desirable to innovate or change the established order of things, except strong reasons existed for the change. On inquiring what had been the practice heretofore, they found the PRESIDENT of the old Congress, as well as the PRESIDENT now going out of office, had establishments made for their household similar to that now proposed. If they looked forward to that period when the seat of Government was to be removed, and considered the furniture which would be necessary for the house in the Federal city, it would be seen that there would be a necessity for a new establishment at that time, as it was evident that the present furniture or what might be purchased with the sum now contemplated, would be wholly inadequate to the furnishing of that house. He supposed an additional grant of twelve or fifteen thousand pounds would be necessary for that purpose. We have chosen an elective Government, said Mr. A., and if it were meant to be kept pure, they must encourage the people to make choice of such men, without respect to fortune, as they think will serve them best, but if instead of providing a suitable household for the PRESIDENT, they left him to provide for himself in this respect, men of large fortune only could engage in this part of the public service. And would this, he asked, be doing honor to the Republican Government? He thought not. The question for striking out was put and negatived--55 to 36. The committee then rose, and when the question was about to be put in the House-- Mr. GALLATIN said, the provision of the bill left it to the discretion of the PRESIDENT whether he would expend the whole of the money, or not. His opinion was, that the sum was too large; but the question for striking it out having been negatived, the expenditure must be left to the discretion of the PRESIDENT. He did not mean to go into any detail. He did not wish to place the gentleman coming into office in a worse situation than that of him who was going out; and as he felt no objection to leave it to the PRESIDENT to make use of the whole or a part of this money, as his discretion should direct, he should vote for the bill. Mr. CLAIBORNE said, as provision had been made for furniture for the gentleman now in office, he was inclined to vote for the fourteen thousand dollars proposed now to be granted for the same purpose to the gentleman who was to succeed him. Mr. HENDERSON wished to give his reasons for voting against this bill. He wished to place the PRESIDENT coming into office in as comfortable circumstances as he who was going out; but it appeared to him that the sum proposed was larger than necessary for this purpose. Indeed, said Mr. H., when he read an article of the constitution touching this subject, he had his doubts with respect to the constitutionality of the proceeding. That article said, "that the PRESIDENT should receive a compensation which should neither be increased nor diminished during the period for which he should have been elected; and that he should not receive within that period any other emoluments from the United States, or any of them." Mr. SITGREAVES believed there could be no doubt as to the constitutionality of the proposed grant of money, as the clause ran, "during the period for which he should have been elected," which would not prevent them from passing any number of acts before he went into office. The question on the passing of the bill was then taken by yeas and nays, and stood 63 to 27, as follows: YEAS.--Fisher Ames, Theodorus Bailey, Abraham Baldwin, Theophilus Bradbury, Daniel Buck, Dempsey Burges, Thomas Claiborne, Joshua Coit, William Cooper, William Craik, Samuel W. Dana, James Davenport, George Dent, George Ege, Abiel Foster, Dwight Foster, Nathaniel Freeman, junior, Albert Gallatin, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Chauncey Goodrich, Roger Griswold, William B. Grove, Robert Goodloe Harper, Carter B. Harrison, Thomas Hartley, William Hindman, John Wilkes Kittera, George Leonard, Edward Livingston, Samuel Lyman, William Lyman, James Madison, Francis Malbone, Andrew Moore, Frederick A. Muhlenberg, William Vans Murray, John Nicholas, John Page, Josiah Parker, John Patton, Elisha R. Potter, John Read, John Richards, Samuel Sewall, John S. Sherburne, Samuel Sitgreaves, Thompson J. Skinner, Jeremiah Smith, Nathaniel Smith, Isaac Smith, Israel Smith, William Smith, Richard Sprigg, junior, Thomas Sprigg, John Swanwick, Zephaniah Swift, George Thatcher, John E. Van Allen, Philip Van Cortlandt, Peleg Wadsworth, and John Williams, NAYS.--Thomas Blount, Nathan Bryan, Samuel J. Cabell, Gabriel Christie, John Clopton, Isaac Coles, Jesse Franklin, James Gillespie, Christopher Greenup, Andrew Gregg, Wade Hampton, John Hathorn, Jonathan N. Havens, John Heath, Thomas Henderson, James Holland, Andrew Jackson, George Jackson, Aaron Kitchell, Matthew Locke, Nathaniel Macon, John Milledge, Anthony New, Alexander D. Orr, Robert Rutherford, William Stradwick, and Richard Winn. _Military and Naval Appropriations._ The House went into a Committee of the Whole on this subject, when, after some discussion respecting the price of rations, Mr. GALLATIN insisting upon seventeen cents being a sufficiently high calculation, and Mr. W. SMITH abiding by the estimate of the War Department at twenty cents; the latter was agreed upon thirty-six to thirty-four, and the pay and subsistence of the Army was settled, but which has since undergone an alteration, owing to the two companies of cavalry being added by a new bill. The sum for forage and clothing was also agreed upon, but which afterwards, of course, from the above alteration, underwent an augmentation. The hospital department being under consideration, Mr. W. SMITH moved to fill the blank with thirty thousand dollars. Mr. GALLATIN moved to fill it with ten thousand. He said, they had this year had a statement of the expense of the Military Establishment, by which they found that the hospital department had cost six thousand nine hundred and five dollars. It had been the uniform practice of the House to appropriate from thirty to forty thousand dollars under this head, though the expense had never exceeded seven thousand; and to apply the surplus to other purposes. He thought it wrong to appropriate four times the sum necessary, and had therefore proposed to fill the blank with ten thousand dollars, which was fifty per cent. more than had ever been expended for the purpose. Mr. PARKER believed than ten thousand dollars would be enough to pay for physic for the Army. Indeed he believed it was generally expended in wine and luxuries by the officers, and that little of it went to the use of the subordinates. The question for ten thousand dollars was put and carried. The blank for the Ordnance Department was filled with forty thousand dollars; and that for the fortifications of the ports and harbors of the United States with twenty-four thousand dollars. Mr. GALLATIN moved to fill the blank for the Quartermaster's Department, the Indian Department, the defensive protection of the frontiers, bounties, and all the contingent expenses of the War Department, with three hundred thousand dollars. Mr. VENABLE said, if the sum necessary for each of the above items could be specified, he would rather have it so expressed than have the whole in one sum. Mr. W. SMITH said it would come to the same thing, if the several items were voted in an aggregate sum, as they were all contingent expenses. He should move to have the blank filled with four hundred and forty-six thousand dollars. Mr. GALLATIN observed there were two motions before the committee: one to fill the blank with four hundred and forty-six thousand dollars, the other with three hundred thousand. He would observe that one of the items in this estimate, viz., that for the fortifications of West Point, ought not to be included under this head; but, as to the other items, he would mention, in answer to what had fallen from the gentleman from Virginia (Mr. VENABLE) what was the reason which had induced the committee to put them in one sum, which was to obtain the very object he had in view in wishing to have all the items stated separately. It would be recollected that they had had a letter from the Secretary of the Treasury, in which he said, "that the appropriations for the Military and Naval Establishments were considered as general grants of money; and, though they were to be accounted for according to law, yet it was the practice of the officers of the Treasury not to consider each appropriation as specific, but the whole as a general grant of money." This practice was making the law a mere farce, since the officers of the Treasury did not consider themselves as at all bound by the specific sums. He therefore concluded it to be proper to pass the law in such a manner as to confine the expense to the appropriation for the different items. It was said to be impossible to carry the law into execution on this principle. It was said there were a number of contingent expenses which could not be exactly ascertained, and that therefore it was necessary the officers of the Treasury should have a certain discretion given them to make use of the surplus of any item for which more than was necessary had been appropriated. He believed the uncertainty here mentioned existed, and therefore it had been concluded to be best to put the contingent articles together in one sum, in order to give bounds to the discretion of the Department. Having given the reasons which caused the bill to be brought in in this shape, Mr. G. said he would mention the items upon which the sum he had proposed to fill up the blank was composed. For defensive protection, sixty thousand dollars; for the Quartermaster's Department, one hundred and fifty thousand dollars. This latter sum has been estimated at two hundred and fifty thousand dollars, but upon what ground he was at a loss to know. The Army would now be fixed in garrison, and would not have to march from post to post. None of the reasons given last year for this expense would now apply; and he thought it unreasonable that the same sum should be allowed for this item which was allowed at the time when they were engaged in an Indian war. In 1789, when we had eight hundred men in garrison, the expenses of this department was $11,076 In 1790, he did not recollect the number of troops, but not more, he believed 45,763 In 1791 92,223 In 1792 (in the height of the Indian war) 206,510 In 1793 178,602 In 1794 263,000 In 1795 317,647 What would be the expense of 1796, could not be exactly ascertained. It appeared by the statement which they had received that upwards of two hundred and four thousand dollars had been expended. Whether there were any further demands unsettled, he could not tell. It appeared, therefore, that the expense of that Department had increased from eleven thousand to three hundred thousand dollars. This had been owing to two causes--the increase of the Army, and by the Indian war. There had also been a great loss of horses from having forage to fetch great distances. Mr. DEARBORN could see no reason for making the appropriation so large as had been proposed by the gentleman from South Carolina. It must be recollected that the Army was in garrison, where there were barrack-houses convenient for the officers and men, and contracts had been entered into for delivering provisions at the different forts, and there would therefore be a great deduction on account of the transportation, in which seven or eight hundred horses had been used up, and the horses on hand might also be sold. Camp equipage was a heavy article of expense, but which would not be wanted whilst the troops were in garrison. These two articles would of themselves make a very considerable part of the whole item. There would also be a saving in the purchase of horses, as the cavalry made more than half the expense. He did not think more than one hundred thousand dollars could be wanted under this head, except it were wanted for making new forts or fortifications. There would now be no necessity for building officers' houses, and huts for the soldiers for winter quarters. All these circumstances considered, he thought the sum he had mentioned would be sufficient. The question for filling the blank with four hundred and forty-six thousand was put and negatived, there being only thirteen votes in favor of it. The sense of the committee was then taken upon three hundred thousand, and carried--there being 51 votes in favor of it. Mr. W. SMITH then moved to add to the bill, "For the repairs of the fortifications of West Point, twenty thousand dollars." Mr. COIT inquired if there was any estimate of this item. Mr. GALLATIN said there was no estimate respecting West Point. Mr. W. SMITH said there was an estimate for Niagara, Oswego, Detroit, &c., which might include West Point, he proposed therefore to change the motion, and insert "Niagara, Oswego, Detroit, &c.," which would include West Point, if necessary. Mr. GALLATIN wished the gentleman from South Carolina to say whether he had any information with respect to West Point. Mr. W. SMITH said, he had no particular information on the subject, but as it was of importance the works there should be very complete, he thought it prudent to grant something for that object. Mr. GALLATIN hoped the proposition would be rejected. There was no necessity for repairing the fortifications of the posts mentioned more than any other of the forts upon the Lakes. They knew nothing of them, but that they were too large for the garrisons in them; but he believed if they once begun to appropriate money for this purpose, it would become a yearly expense, And whilst they had been parsimonious with respect to the ports and harbors of the United States, having only appropriated twenty-four thousand dollars to that purpose, he could see no reason for granting twenty thousand dollars for repairing the forts of Niagara, Oswego, and Detroit, against a few Indians; as it was well known that a block-house was as good a fortification against the Indians as any other. When the regiment was raised to go and take possession of that country, they built all their forts as they went along, without any expense, except the price of a few tools. He hoped, therefore, they should not by voting for this sum, introduce a new item of expense into their annual appropriations. Mr. W. SMITH agreed with the gentleman last up, that enough had not been appropriated for the defence of the ports and harbors of the United States; but if they had done wrong in one instance, it was no rule why they should continue to do so. He thought it very important that the forts he had mentioned should be so secured at least as that they should not go to ruin. Under this item was included West Point, which was a fort of great consequence; and he would rather forty thousand dollars were appropriated than twenty thousand for this purpose. Mr. DEARBORN said, as far as the proposition related to Niagara, Oswego, and Detroit, he thought it improper to appropriate money for their defence. He believed it would require a year or two to know what was necessary to be done there. At Niagara, the works were large enough for six or seven thousand men, and it would become a question whether they should be reduced, or kept up as they were; at Oswego, nothing more could be necessary than a block-house. It was true, there were considerable works there, but until it was decided what they should do with them, it would be improper to appropriate money for their repair. The same thing might be said of Detroit. He had no idea that the PRESIDENT could have information from those places of what was necessary. Whatever temporary repair might be required there, the troops themselves would be able to effect. As to West Point, he did not know any thing about it, except that it was a place of consequence; he also knew that a great deal of money had been laid out upon it. He hoped they should get into a new system with respect to the defence of our ports and harbors; and until that was done, he should be against granting any considerable sum for this purpose. If gentlemen were in possession of any information on the subject, he perhaps might be induced to vote for a small sum: but not until he knew more of the matter. Mr. LIVINGSTON spoke of the importance of the fort at West Point, and of the necessity of keeping it in proper repair. Mr. COIT said, the question seemed to have taken a new turn. He presumed that West Point was not in the idea of the Secretary of War when he made the estimate upon which this bill was founded. If it had been, it would have been very improper to have begun with Oswego, and include West Point in the _et cetera_. In June, 1796, 20,000 dollars, he said, were appropriated for the repairs of this fort, and they had not been informed that it had been expended. Mr. GALLATIN said, there had been 7,000 dollars expended at West Point; the other 13,000 dollars were not intended for that fort. The present appropriation was doubtless intended for the forts mentioned, and those in the same quarter. If any thing was wanted for West Point, a distinct proposition should come before them for that purpose. Mr. W. SMITH observed that the gentleman last up had stated that only 7,000 dollars had been expended at West Point; that was only the amount which had been expended at the time the estimate was made; but the whole might have been since laid out, as then only 520,000 dollars of the appropriation of the Military Establishment had been expended. Mr. GALLATIN said, that the total expenditure of the estimate alluded to was 1,280,479 dollars. The question was put and negatived, there being only 19 votes in favor of it. The committee then rose and had leave to sit again. TUESDAY, February 28. _Algerine Captives: Ransom._ The Secretary of State, to whom was referred the petitions of George Smith and John Robertson, who prayed for a repayment of the money which they had themselves paid for their ransom from Algerine slavery, reported that the ransom of George Smith cost $2,426, of which Colonel Humphreys had paid $1,526, and George Smith the remainder; that by the late return of our citizens from Algiers, the expense attending the redemption of each man was ascertained to be $2,396, independent of the expense of the general negotiation, and allowing for small inaccuracies on account of some expenses which could not at present be ascertained. He recommends, therefore, that George Smith have paid him $873, which, with the sum paid by Colonel Humphreys, would make about $2,400. John Robinson paid for his own ransom $1,518, the interest upon which came to $516; the Secretary therefore recommends that $2,034 be paid to him. On motion of Mr. SWANWICK, this report was referred to a select committee, viz: Messrs. SWANWICK, BLOUNT, COIT, SEWALL, and PARKER. _General Appropriation Bill._ The amendments from the Senate to the bill making appropriations for the support of Government for the year 1797, were taken up and agreed to, as also those to the bill laying additional duties on sundry articles of impost. The amendments which were agreed to were to add to white cotton goods, "velvets and velverets, whether printed, stained, colored, or otherwise, and all muslins and muslinets, two and a half per cent." And also a new section, enacting that an addition of 10 per cent. should be laid upon these articles when imported in ships or vessels not of the United States. The duties are to take place after the 31st of December next. _Military and Naval Appropriations._ The House again resolved itself into a Committee of the Whole on the Military and Naval Appropriations; when, the pay and subsistence of three captains in the Naval department being under consideration-- Mr. SWANWICK thought it would be necessary to have a laborer or two employed to take care of the vessels and materials. Mr. W. SMITH said, the estimate for the captains was $4,200; if the sum was made $5,000, there would be sufficient for the payment of any laborers which might be necessary. Agreed to. The blank for the payment of Military Pensions was agreed to be filled with $96,350. And for making good the deficiencies of the Military Establishment of 1796, $76,312. Also, for the payment of the expedition of General Sevier into the Cherokee nation, $22,816. The committee now rose, and had leave to sit again. _Executive Veto on the Army Bill._ The following Message, in writing, was received from the PRESIDENT OF THE UNITED STATES, containing his objections to the bill for fixing the Military Establishment: _Gentlemen of the House of Representatives_: Having maturely considered the bill to alter and amend an act, entitled "An act to ascertain and fix the Military Establishment of the United States," which was presented to me on the twenty-second day of this month, I now return it to the House of Representatives, in which it originated, with my objections. _First._ If the bill passes into a law, the two companies of light dragoons will be, from that moment, _legally_ out of service, though they will continue afterwards _actually_ in the service; and for their services during this interval, namely, from the time of _legal_ to the time of _actual_ discharge, it will not be lawful to pay them, unless some future provision be made by law. Though they may be discharged at the pleasure of Congress, in justice they ought to receive their pay, not only to the time of passing the law, but at least to the time of their actual discharge. _Secondly._ It will be inconvenient and injurious to the public to dismiss the light dragoons as soon as notice of the law can be conveyed to them, one of the companies having been lately destined to a necessary and important service. _Thirdly._ The companies of light dragoons consist of one hundred and twenty-six non-commissioned officers and privates, who are bound to serve as dismounted dragoons when ordered so to do. They have received, in bounties, about two thousand dollars; one of them is completely equipped, and above half of the non-commissioned officers and privates have yet to serve more than one-third of the time of their enlistment; and, besides, there will, in the course of the year, be a considerable deficiency in the complement of infantry intended to be continued. Under these circumstances, to discharge the dragoons does not seem to comport with economy. _Fourthly._ It is generally agreed that some cavalry, either militia or regular, will be necessary; and, according to the best information I have been able to obtain, it is my opinion that the latter will be less expensive and more useful than the former in preserving peace between the frontier settlers and the Indians, and, therefore, a part of the Military Establishment should consist of cavalry. G. WASHINGTON. UNITED STATES, _February_ 28, 1797. On motion, "_Resolved_, That to-morrow be assigned for the reconsideration of the said bill, in the mode prescribed by the Constitution of the United States." The question to concur was put and carried--40 to 37. WEDNESDAY, March 1. _Military Establishment._ Mr. GALLATIN wished the bill for fixing the Military Establishment, which had been returned by the PRESIDENT OF THE UNITED STATES, with his objections, to be taken up. Mr. W. SMITH hoped this subject would be taken up, but before it was entered upon, he wished the Committee of the Whole to be discharged from the consideration of it, as he found, in a former instance of a similar kind, the business had been settled in the House. The committee was accordingly discharged. The House then proceeded to reconsider the bill, agreeably to the direction of the constitution. The bill was first read, and then the objections of the PRESIDENT. The SPEAKER then read the clause in the constitution which directs the proceedings on such an occasion, and which says, that in case two-thirds of the House wherein it originated shall be in favor of passing the bill, it shall be sent to the other, and if two-thirds of that House be also in favor of it, it shall become a law. The votes of both Houses to be determined by yeas and nays. Mr. NICHOLAS said, he meant to vote against the bill, but he did not wish to stand charged with refusing to pay the men for the time they were in service. He thought this bill was by no means liable to a charge of this kind; as it could scarcely be supposed that, at the time they were making a voluntary gift of $100 to every officer discharged, the Legislature meant to defraud the men of their pay. Mr. W. SMITH did not see any necessity for the observations of the gentleman from Virginia. There was nothing in the Message of the PRESIDENT which charged that House with an intention to defraud the men of their pay. Whatever was the design of gentlemen, this was not the charge. But certain it was that this would be the result of the bill, and it would be six weeks or two months before they could be notified that the act was passed. It was the legal opinion of the Attorney General, therefore, that they would not be entitled to pay during that time. Mr. NICHOLAS was sorry that the gentleman from South Carolina and he did not think alike on the subject; he thought the objections he had made were necessary, and he had made them for the purpose stated. He thought the PRESIDENT ought not to have doubted their willingness to have allowed the pay in question. He was of opinion the House had given some extraordinary proofs of their liberality this session; amongst other proofs of this, they had determined to appropriate money for the building of a thirty-six gun frigate, which he had caused to be built without authority. But the pay of these men was so much a point of law, that he believed the men would have been entitled to pay. Mr. W. SMITH said, their having agreed to give each of the officers $100, without mentioning the men, rather went against the gentleman's conclusion; because, if any thing had been intended to have been given to them, they would also have been mentioned. Mr. WILLIAMS was sorry that some things had not been more attended to, when that bill was under consideration; and, although there would be a difficulty respecting the Brigadier General and Staff, yet he thought the objections well founded, and would vote against the passing of the bill, in order that a new one might be brought in to avoid the objections, from the demands lately made for the protection of the frontiers of Georgia and Tennessee, which amounted to upwards of $300,000; he fully agreed with the PRESIDENT that it would be less expense to keep up the two companies of dragoons than to employ militia horse. The yeas and nays were then taken, and stood 55 to 26. The bill being accordingly lost, Mr. NICHOLAS moved that a committee be appointed to bring in a new bill, which being agreed to, a new bill was reported (exactly the same as the former, except an omission of the parts objected to by the PRESIDENT.) It was ordered to be engrossed for a third reading, and afterwards passed. _Case of Hanging Maw._ Mr. BLOUNT called for the order of the day on the report of the Committee of Claims on the petition of the widow of the late Scollacuttaw, or Hanging Maw. The House accordingly went into a committee thereon, when the report was read, as follows: "That the complaints against the conduct of one John Beard, and a number of armed men, who, she states, in the year one thousand seven hundred and ninety-three, contrary to law and the good faith of Government, attacked the dwelling-house of the petitioner and husband, killed and wounded a number of well-disposed Indians; burnt, and destroyed, and carried away their property, and wounded the petitioner. She now prays that some provision may be made for her. "After examining the statement made by the petitioner, and the facts upon which she rests her present application, the committee have found some difficulty in deciding what measures would be most advisable for the House to adopt. "Previous to the attack on the Hanging Maw, the frontier settlers of Tennessee and the Indians in that quarter had been guilty of mutual acts of aggression and hostility. A party of the Indians had killed some settlers; their trail was discovered, conducting across the Tennessee--this circumstance induced a belief in their pursuers that the Hanging Maw had been concerned in that business, and occasioned his being wounded, and the misfortunes complained of by his widow. The general opinion, however, represents the Hanging Maw as having been uniformly friendly to the settlers; as vigilant to apprise them of the approach of banditti; and constant in his exertions, on all occasions, to compose difficulties between them and his nation; and, withal, as possessing considerable influence over the Indians. The same disposition is also attributed to his widow, the present petitioner; who, instead of exciting her people to acts of retaliation, has abated nothing in her friendship to the white people. "All these circumstances seem to countenance, if not to require for her a pension from the Government, or some other relief from the Legislature. Such a provision might also be considered as extending its influence beyond the particular object; or, as an inciting cause to other Indians to pursue a similar line of conduct, under circumstances alike cruel and distressing, should they happen. "But, on the other hand, it is to be considered that there are citizens on the frontiers who have suffered injuries as cruel, and deprivations as severe by the Indians; and who have been thereby left in situations of distress that would equally call for assistance from the Legislature. Questions arise whether both descriptions of sufferers ought not to be provided for? Whether the abilities of Government would be competent to meet all possible claims of this nature? And whether help can be extended by law to the one, and consistently refused to the other? "It may be said that those who settle on the frontiers voluntarily assume all the risks and dangers attached to that position; and, therefore can have no just claim upon the Government for consequences resulting from their choice; whilst, on the contrary, policy requires that the minds of the Indians, who may be roused to hostility by acts of the settlers, should be quieted by small pecuniary interpositions. "Under these views of the subject, the committee have hesitated what report to make; but, upon the whole, as the authority vested in the Executive Department is competent to meet this claim; and should the petitioner, from her sufferings and her attachment to the United States, appear to the Executive to be entitled to any annual relief, as it may be afforded out of the appropriations for contingent expenses in the Indian Department, without any interference of the Legislature, and as this mode will probably involve the fewest difficulties, the committee think she should apply to that department; and that the prayer of her petition ought not to be granted."[12] The committee reported their agreement with the resolution reported from the Committee of Claims. The question was taken, that the House do agree with the Committee of the whole House in their agreement to the said report, and resolved in the affirmative. THURSDAY, March 2. The bill for the relief of American seamen was read the third time and passed. _Military Appropriations._ On the motion of Mr. W. SMITH, the House went into a committee of the Whole on the bill making appropriation for the Military Establishment, when the following items were agreed to without debate: For the payment of the army, $256,450 For the subsistence of the officers, 47,395 For the subsistence of the non-commissioned officers and privates, 245,283 For forage, 14,904 For clothing, 83,050 Mr. W. SMITH then proposed to insert a new item, in consequence of the bill just passed, "For the purchase of horses and the equipment of the cavalry, $16,085." Mr. GALLATIN said, the items which had been agreed to were upon the ground of an increase of 126 dragoons which was not in the former bill. The item now under consideration went to provide horses and equipments for an additional company of cavalry. It appeared that this company was heretofore without either, so that they must have been employed as dismounted dragoons; and if they now appropriated the sum before them, they would, in fact, add a company of horse to the establishment. He believed it to be the general opinion that they had cavalry sufficient at present; indeed, it was the opinion of a large majority of that House that none were necessary; but if they did appropriate for any, he thought they ought not to go beyond the present establishment. Mr. W. SMITH said, if they refused to make the appropriation under consideration, they declared that one of the two companies of cavalry should act as infantry. By the bill passed yesterday, it was left altogether to the option of the PRESIDENT to employ them either as cavalry or infantry: but if this appropriation was withheld, he would be under the necessity of employing them as infantry only, and this House would now exercise a discretion which only yesterday they had vested in the Executive. It would be observed, that, in the message of the PRESIDENT, he had fully stated the reasons why dragoons would be requisite. The business upon which one of the companies was at present employed was to escort the Commissioners employed in running the boundary lines betwixt the territory of the United States and the Indians; the other was indispensable for the protection of the frontiers. What, Mr. S. asked, would be the consequence of refusing this appropriation? One of the companies of dragoons would be obliged to act as infantry, and Government would be compelled to employ militia-horse at a great expense. If this was economy, he was mistaken in his ideas of economy. The sum was conformable to the estimate which he had received from the War Office. Mr. HARTLEY was in favor of the appropriation, that the PRESIDENT might be at full liberty to employ the troops on foot or on horse-back, according as the service might require. Mr. NICHOLAS thought, while they were making appropriations, this subject might as well be included. If these men were to be kept, they ought to be properly equipped. He said it was the opinion of the PRESIDENT and the Secretary of War that cavalry was necessary, and therefore he had concluded it would be proper, and wished them to be kept up, so as to be called into service whenever necessary. Mr. MILLEDGE thought there was great need of cavalry; it would be an object of policy, as, by information he had received from the Governor of Georgia, (which he had in his hand, and which was corroborated by a late Governor,) horse were absolutely necessary--he thought three companies--on the frontier. He therefore was in favor of the appropriation. Mr. VARNUM had no doubt but the gentleman from Georgia, and every gentleman in the House, would be glad to have horse and infantry too kept up in their State: every part would be glad to have the public money expended upon it. He could not see why a body of cavalry should be kept up in a time of peace. He thought the Legislature had as good a right to judge as any person, notwithstanding the authorities produced to sanction the appropriation. Mr. V. had no doubt, if this was granted, that application would soon be made again for a similar purpose. He hoped this appropriation would not take place; it would be a small saving, and might as well be made, as there was so much want of it. He could have wished the troops reduced to two regiments, which he thought quite sufficient for a Peace Establishment. He hoped the PRESIDENT's ideas on the subject would not obtain to govern the decisions of the House, as we have the power, said he, to withhold appropriations; and what gentlemen who were locally concerned should say, he could not be guided by; as soldiers would consume their produce and spend money amongst them, consequently they were interested. Mr. CRAIK really lamented that the gentleman had not been in the House yesterday, at the time the subject was more under consideration: he might then have inveighed against the PRESIDENT. The observations might have come with more propriety, if they had been made before the bill passed, and when under discussion; but, after a law has passed the proper authorities--after it has been resolved to have these troops of horse--to say, we will not appropriate money to carry it into effect, is strange conduct. If the determination of the gentleman was to oppose the bill, he should have used every means to that purpose, and if not effectual, at least to suffer others to enjoy their will--especially a majority. For the sake of consistency, he hoped the gentleman would withdraw his opposition, and not in this side-way try to defeat the operation of a bill which has passed. The cavalry were voted because they were supposed to be necessary, and now a gentleman comes forward, endeavoring to excite the jealousy of the House on the Executive's meddling with the Military Establishment. Mr. C. said he was pleased that the PRESIDENT had refused it, if it was only to convince some gentlemen that he had power to refuse that or any other bill. [Here Mr. DENT asked the gentleman if he was in order.] Mr. CRAIK said he only wished to prove the inconsistency of the member's conduct. He thought the House should not betray a want of consistency. He believed, from the statement of the member from Georgia, and the reasons of the PRESIDENT, that horse were necessary, and he therefore should wish the appropriation to be passed. Mr. KITCHELL said, gentlemen seemed to be mistaken; they were continually alluding to the law passed yesterday. There was not a word about two troops of horse yesterday. All we then said, was, that we would not say there should not be two troops of horse; the Message of the PRESIDENT did not say that two troops should be mounted, nor do I say, said Mr. K., that horse are not necessary; I think some are necessary; but the inquiry seemed to be, now, whether the House were to vote for more. Mr. W. SMITH said, the gentleman's observations were very extraordinary; he surely could not have attended to the subject, to say that the House had not passed the law authorizing two troops of horse. We have a law in force, said he, to ascertain and fix the Military Establishment, in which we authorize the PRESIDENT to employ the two troops of dragoons, to serve either on horse or foot at his discretion. The bill we sent up yesterday does not repeal that law, and yet gentlemen would now come forward to oppose the appropriation, and determine they shall act on foot. He could not think with what propriety the restriction could be made as the gentleman from Massachusetts wishes, nor could he think how the gentleman from Jersey had attended. Should we now say they should be at our direction, and that we would not grant money without? This would be strange conduct--an assumption of power which he hoped the House would never arrogate. Mr. KITCHELL said his meaning was, that the horse were not established yesterday, but before. Mr. HARTLEY said it appeared, from good testimony, that the troops were requisite to save the people on the frontiers from the depredations of the Indians; he thought, therefore, that they having been established before, the House were bound to make the appropriation to give effect, or show the great inconsistency. Mr. NICHOLAS said it was not his intention to vote for these men at all; but if they must have them, perhaps it would be most economical to equip them. With respect to their power of withholding the appropriation, he had no doubt; and though they had yesterday passed a law establishing two companies of cavalry, it was in the power of that House, of the Senate, or of the PRESIDENT, to refuse an appropriation. This was the sense of the constitution. When the bill came before the House, he should give his negative to the additional horse; for, if they were always to keep up the same number of men, whether in war or peace, except two-thirds of both Houses were found to oppose the will of the PRESIDENT, they might bid adieu to all restraint upon Executive power, and count upon a military Government, if ever an Executive should be found whose will it should be to make it so. If these were to be kept up, he would still say the House had better go to $100,000 expense to mount them on horse-back. Mr. VARNUM said it was observed by gentlemen that those troops were not mounted; if so, there must have been a very lavish waste of money. However that might be, gentlemen who state this matter ought to state it fairly. They ought not to say that two companies of cavalry were yesterday voted. No, they were part of the old War Establishment. It was true, the House had not the power to repeal the law; but one thing was in their power, and that they ought to do, if they see this part of the standing army necessary. The constitution returns the power to act on it once in every two years to each branch of the Legislature. The House, he thought, had good right to exercise their own opinion on the necessity of mounting these men. It was not in the power of one branch to repeal the law which keeps these men, but we ought to consider whether they are to be put in the same situation as in time of war. Mr. V. said he discharged his duty in voting against this appropriation. The House had a right to judge, and it was not in the power of the PRESIDENT to act for them. Mr. HEATH said that the subject had been fully discussed, and therefore he should only observe, that, from the authority which had recommended the mounting of these cavalry, he should vote for the appropriation. Mr. MILLEDGE repeated his arguments on the local situation of the country, and asserted the absolute necessity of the troops. The motion was put and carried--there being 56 in favor of it. _Naval Appropriations._ Mr. W. SMITH then proposed to add $172,000 for finishing the frigates United States, Constitution, and Constellation. Mr. NICHOLAS said he should be against appropriating so large a sum for this purpose. It was the sense of the House, on a former occasion, that it would be proper to appropriate such a sum as should put them in such a situation as to secure them from injury, but to stop short of making them fit for sea, that the expense of manning them might be avoided. Mr. SWANWICK said a new view of the subject seemed to be brought forward at present. Before, they had determined to finish the frigates; but now, they were not to finish them, lest they should be manned, but to finish them in part only. A gentleman yesterday said, when speaking on the subject of the PRESIDENT's Message, that he could not suppose they would have refused to pay the soldiers, though there might be some deficiency in the expression of the act; and might he not suppose, said Mr. S., if the frigates were so nearly finished, he might go on to finish them, and trust to the Legislature to furnish the money? These frigates, he said, were a very extraordinary concern. It seemed as if it was only when it was to be made a present of to Algiers, that a frigate could be finished, and not when it was for the protection of our own commerce. He trusted, however, that there would not be a majority found in that House who would vote against finishing the frigates: as to manning them, that would remain for a future consideration. Mr. PARKER said, it would require all the money which had been named for finishing the frigates, without rigging, though there would be a considerable quantity of materials left on hand. There need be no apprehension of their being manned, whilst seamen's wages remained at the price they were, because men could not be got on the terms stipulated in the law for this purpose. If a smaller sum than was mentioned were to be granted, they might as well give nothing. Mr. SITGREAVES supposed the blank was now proposed to be filled with the same sum which had been agreed upon on a former occasion. If this were the case, it ought to dissipate the fears of the gentleman from Virginia, (Mr. NICHOLAS,) as it was well known that the sum was predicated upon a supposition that the frigates were not to be manned. If they were to be manned, a further appropriation would certainly be necessary. Mr. NICHOLAS said, it appeared to him that if all gentlemen were agreed that this business should go no further than the building of the frigates, they could have no hesitation to leave undone some of the internal finishing work of the vessels; if they did not wish to put them into such a situation as that they might force them into service upon the spur of an alarm, they could have no objection to their being left in such a situation as to be perfectly secure, but not finished fit for sea. Mr. SITGREAVES said this subject had heretofore undergone a very full discussion. A motion was then made merely to finish the hulls, which was negatived. It was then said that contracts were made for all the materials, and that except the frigates were finished, the engagements which had been entered into could not be fulfilled. But there was another security against the danger apprehended. They had lately come to a determination to make all appropriations specific and particular. What was the language of the present appropriation? It was for finishing the frigates, not for manning them. If it had been said to be for carrying into effect the law for the Naval Establishment, there might have been some little ground for apprehension; but, as it now stood, the Executive could not proceed to man the vessels. Mr. NICHOLAS said, when they voted the sum now asked for finishing the frigates, the expenditure was accompanied by a law to repeal the manning clause of the former act. He had made inquiries respecting contracts, and found the money in hand was equal to the fulfilment of them; if there had been any others, he supposed they should have heard of them. He again said there were many ornamental parts of the vessels which might be as well thrown upon the expense of next year as of this. Mr. SWANWICK said, if Government could have had foresight sufficient to have known that there would have been any objections made to the finishing of the frigates, they would certainly not have entered into any contracts to that extent, but they could not possibly do this. He wished, if gentlemen were determined the frigates should not be made use of, that they would say at once they should be sold on the stocks. With respect to manning of them from the money proposed to be appropriated, that was impossible, and he saw no reason for making the business _doubly sure_ by any other precaution. Mr. HOLLAND said it was, with great propriety, intended by many members in the House to keep the frigates in such a state as to prevent their being manned. If we appropriate to finish them, said he, we shall be exposed to all the difficulties depicted by the gentleman from Pennsylvania; for some way would be devised to procure and pay men, if the House put it in the power of the Executive to do it: therefore he hoped, to avoid all that trouble and expense, they would not vote to finish them. For what purpose, said he, should they be finished, unless it were intended to man them? To avoid every danger of that kind, he should vote against the sum proposed. Mr. HARTLEY said, that last year the six frigates which had been before voted for were reduced to three, with intent to complete them. Was it not probable then, he would ask, that the PRESIDENT would proceed to complete those frigates, according to the power given him? Was it not to be supposed that contracts were entered into for that purpose? No person could suppose but contracts were made. Then certainly the House ought not to expose the Executive to the ridiculous situation of receding from his contracts! They would not be finished before next session, and therefore no danger of equipping could be apprehended. It may be necessary to use them, but at any rate it would be running no risk to have them finished, as they could not be manned by this appropriation. Mr. GALLATIN said, there seemed to be involved in the present consideration the question whether or not we should have a Navy. As to himself, he should vote against the present appropriation, because if the frigates were completely finished, he should fear they would get to sea. When they had on a former occasion consented to finish them, it was under the condition of the law for manning being repealed; but they now stood upon new ground. Mr. G. said he had been charged with inconsistency of opinion, from having before said that he thought the PRESIDENT would not be authorized to proceed in the manning of the vessels under the present law, whilst he was now apprehensive that he might do so. He wished to be on sure ground. He did not know but the PRESIDENT might put a different construction upon the law from him. Indeed, from the experience they had had of Presidential discretion, they need not be surprised if the vessels were sent to sea, though no appropriation was made for the purpose, should the PRESIDENT suppose there was any plea for doing so. As a proof of this power having been exercised heretofore, Mr. G. referred to the Western insurrection. In that case, he said, no appropriation was made for the expense; but the law authorizes the PRESIDENT to call out the militia when he shall see occasion to do so; he called them out, and got money from the Treasury. Indeed, the building of a frigate for Algiers, without any authority, and the pledging of the faith of the nation to pay the expense of the law-suits of our citizens in London, were strong proofs of what the Executive could do. Mr. G. said he did not mean to bring into view any arguments relative to the propriety of establishing a Navy in this country. He should vote against the present motion, because he did not wish to see the frigates at sea, and because he conceived a Navy to be prejudicial to the true interests of this country. Something had been said about contracts, but he did not believe any existed. They had last year been told the same thing. Any person reading the statements which had been furnished to them, would perceive that the business was not done by any contract, but that men were employed by Government, and regular wages paid to them. The frigate which had been built for Algiers had been built by contract, they had an estimate of it at so much a ton, but this was not the case with respect to any other of the frigates. Mr. W. SMITH did not wish to go into a long debate on the subject, when they had so much business before them, in order to show whether it was proper for this country to have a Navy or not; the only question now was, whether they ought to appropriate money for finishing the three frigates. If they did not do it, all the money which had been already expended would probably be lost. The only objection to the doing of this seemed to arise from a fear that the vessels would be manned, though when this subject was before them, the other day, the gentleman from Pennsylvania (Mr. GALLATIN) moved to postpone the bill relative to the repealing or suspending the law for manning the vessels till next session, from an opinion that, by the present law, the PRESIDENT was not authorized to man them. That gentleman seemed now, however, in contradiction to himself, to fear the PRESIDENT would put a different construction upon the law: if he did not believe the PRESIDENT would violate the law, he could not account for his refusing now to vote the money which was merely necessary to finish the vessels. Mr. S. read an extract from the report of the Secretary of War, to show the forward state in which the vessels were, and added, that they were bound in duty to finish them, were it only to prevent the loss of the money already expended upon them. Mr. DEARBORN observed, that if he was convinced, from the documents which had been laid before them, that the sum now asked for was necessary merely to finish the frigates, he should not hesitate to vote for it; but it was not a little extraordinary that the gentlemen on that committee (not even the Chairman, who seemed to have the business so much at heart) could not say whether this sum was necessary for finishing and rigging, or finishing without rigging, or for finishing, rigging, and manning. The frigate building in this city, the captain had told him, was calculated in point of size to carry 62 guns, instead of 44; which was one of the reasons they had cost so much more than they had been estimated at. Mr. D. said, he suspected that the sum proposed would not only be sufficient to finish the hulls, but to rig and fit the vessels for sea, and until he had more satisfaction on the subject he could not consent to give his vote for it. Mr. KITTERA observed, that gentlemen first said, that under the present law, the PRESIDENT could not proceed to man and send the vessels to sea, but now they were apprehensive this might be done, though no appropriation was made for the purpose. This, he thought, somewhat inconsistent; but he believed whilst thirty dollars a month was given to seamen by merchants, and their law only authorized eleven to be given, there was not much to be feared on this head. Mr. AMES said, that gentlemen opposed to the finishing of the frigates, seemed to be also opposed to all ideas of this country ever becoming a naval power; the necessity of this, he was persuaded, would ere long appear. It was not to be supposed that a nation whose commerce was greater than that of any other, except Great Britain, should go on long without a naval protection; and he believed the more strenuous the opposition shown against this measure, the sooner it would be accomplished; he was not therefore displeased to see the present violent opposition to every thing which looked towards this object. It was not enough, Mr. A. said, for gentlemen to discourage the building of ships, they would also discredit the administration of Government; and nothing was more natural than that those who thought so ill of it themselves should endeavor to spread those opinions. This was done continually. With respect to the building of the frigates, he thought it was a wise step; and as to the extra expense and delay which had attended the business, he believed, gentlemen might take a share of the blame upon themselves, on account of the versatility which had been shown upon the occasion in this day agreeing upon one thing, and that upon another. It was true, that another cause of extra expense was owing to a resolution which had been taken to make the ships much larger than was contemplated by the House; the vessel building here, he believed, was nearly 1,600 tons. He was glad that this alteration of plan had been adopted; not because more money would be expended on this account; not because contrary to the direction of the Legislature, but because true wisdom required it; they would now be an overmatch for any frigate, or any vessel which the Algerines could send out against them. These, he believed, were the views of the Executive in having them built of the size they were. The number of the frigates agreed to be finished had been reduced to three; and these they last session passed a law to finish. But what was now to be done? It was said they should not be finished. Who said this? Did the people? did the Government say it? No; that House alone said it: so that that House were about to usurp the supreme authority. We are the Government, we are the people, we are every thing. But, if there be a law which says that these three frigates should be built and equipped for sea, was it not necessary, before it was concluded that they should not be so built and equipped, that this law should be repealed by all the branches of the Legislature? No, say gentlemen, we can appropriate or not, according to our sovereign will and pleasure. If they possessed the power to nullify what was enacted by all the three branches of Government, it was greatly to be lamented. But if they could appropriate according to their will, they were bound to do it also according to their consciences too. It was not only a weapon, but a shield, which it was their duty to use with great caution, and according to law; for, if they were to use it contrarily, it would be to make that House the supreme power, it would be to usurp the supreme authority. Mr. COIT believed the only real question before them was, what sum they would appropriate for this object; he wished the mover would consent to leave the item blank. Mr. W. SMITH had no objection to its being left blank. Mr. VENABLE said, if this was a mere question of expense, it was very extraordinary that it should have called forth such a philippic from the gentleman from Massachusetts, (Mr. AMES,) who had charged the House with arrogating to itself all the powers of Government; as being omnipotent. Upon what ground could he found such charges? If it were a question of expense merely, there could certainly be no ground for such charges; but if it were to be considered as a question of power, if they were to be told they dared not to withhold the appropriation in question, here he would intrench himself as a Representative of the people; he had a right, as a member of that House, to vote against the expense which he thought improper, and he would exercise that right. Every branch of Government had the same right, and he wished them to exercise it. And he would not be told, when he was about to exercise this right, that he was arrogating to himself all the powers of Government. He was determined to exercise his discretion on every question which came before him for decision, and he would vote against this expense. Mr. NICHOLAS said, the gentleman from Massachusetts (Mr. AMES) seldom spoke without casting some denunciation against that House. He had, however, allowed that the PRESIDENT had done, with respect to this fleet, all that any gentleman had charged him with doing; he had even put the case stronger than any other person had put it; for he had said that the Executive had determined to build the vessels of a larger size than had been contemplated by the Legislature, in order to be an overmatch for any other frigate. All this, said Mr. N., may be right, and the approbation he gave this conduct, was a proof the gentleman thought so; all he had to say was, that it was not legal; it might be patriotic, and be done with an intention to serve the country; the PRESIDENT might understand the interests of the country better than they; but it was a conduct which would not meet with the same approbation from him that it met with from the gentleman from Massachusetts. That gentleman had also said that a law imposed a duty upon the House to find the means for carrying it into effect. Were they not, then, to be called upon for money to man the frigates? He asked those gentlemen whether the PRESIDENT had not a right to man the frigates, and if so, whether they should not be _obliged_ to find the money? The powers of this House to control appropriations, had, however, already been settled. It was, indeed, an absurdity to call a body a Legislature, and at the same time deny them a control over the public purse; if this were not so, where would be the use of going through the forms of that House with a money bill? The Executive might as well draw upon the Treasury at once for whatever sums he might stand in need of. A doctrine like this would be scouted even in despotic countries. And what was all this power that so much alarmed the gentleman from Massachusetts? It was merely a negative power to refuse to do what they thought it would be mischievous to do. Mr. N. said there was a very fashionable doctrine of throwing all power into the hands of the Executive. If there were to be extremes, however, he believed an excess of power would at least be as safe in their hands as in those of the Executive; and if this were his opinion, and the ground upon which he acted, the gentleman from Massachusetts never failed to take an opposite direction. He never thought any Executive power too great. Mr. PARKER remarked, that it had been said the frigates would carry 62 guns; it might have been possible to have made them so, but they were no more than a large sized 44-gun frigate. They might be a little larger than any other of that number of guns, but not so much. It was true they were not at first contemplated to be so large, but strong reasons were offered for making them of the present size; the expense was not increased by the increase of size, in proportion to their usefulness. He therefore himself approved of what the PRESIDENT had done; and, if he had had the management of the business, he should have done the same. It had been doubted whether the sum proposed to be granted would not only finish, but equip and man the vessels. If the gentleman who had these doubts would refer to the report which had been made on the subject, he would find that $220,000 would be required for that purpose; the $172,000 proposed would barely make them ready for sea in other respects. The gentleman from Pennsylvania, (Mr. GALLATIN,) who was generally very correct in his statements, had supposed that if the frigates were finished, the PRESIDENT might go on to man them without consulting the Legislature upon the occasion; and, to show the possibility of doing this, he had alluded to his having built a frigate for the Algerines without the approbation of Congress. He lamented the situation in which we stood with that country, but he believed the building of the frigate was necessary. The Western insurrection, and the law-suits in London had also been named, which he should not stop to notice. In answer to the gentleman from Pennsylvania, he would say, that if the PRESIDENT could man the vessels and send them to sea independent of Congress, he might also finish them without their aid; but he did not believe he would place himself in the same situation with respect to them as if he had to do with a foreign nation. In relation to foreign nations, he had great power; but, if he went beyond his power with respect to internal regulations, he would be liable to impeachment, and he would be one of the first to promote an impeachment, were such to be his conduct. Mr. AMES said, he understood the gentleman from Virginia (Mr. NICHOLAS) to say, that the conduct of the Executive was illegal; but certainly if a frigate was estimated to cost $12,000 and it cost $15,000, the expenditure of the additional $3,000 was not illegal. Mr. NICHOLAS said, he had made use of the gentleman's own words with respect to the change in the plan of building the frigates, which he had called illegal. Mr. AMES said, as to the size of the vessels, that was Executive business. The gentleman from Virginia (Mr. VENABLE) seemed to take the observation which he had made with a degree of sensibility perfectly natural, because it went to touch the power which he had claimed as a member of that House. The gentleman said, "Here I intrench myself behind my privileges." Nothing was said about the public good; all was self. And was it to be considered, he asked, that they enjoyed the powers committed to them in their own right, as barons of empire, as sovereign despots? Or was the power placed in them to be exercised like other duties, according to justice and propriety? He believed no one would deny that the latter was the truth. How did the matter stand? They had attempted to repeal a law, but another branch of the Legislature had refused to accede to the repeal; of course it could not be effected. Were they then to act as if the law had been repealed? Yes, say gentlemen, we will refuse to appropriate the money since we think the thing unnecessary. He hoped, however, the day would soon come (as melancholy would be the period until it did arrive) when this power of refusing an appropriation to carry an existing law into effect, should no longer be countenanced by a majority of that House. Mr. VENABLE was of opinion, that if the gentleman from Massachusetts had only the public good in view, which he had spoken of, he could have had no inducement to have gone into the arguments which he had introduced on this occasion. He could assure that gentleman that he felt himself as strongly bound to consider the public good in all his conduct as he could be. He believed no instance could be named in which he had not consulted that interest. As to what was, or was not, calculated for the public good, he must be left at liberty to judge for himself. But the gentleman had not put the business on this ground, but because gentlemen differed in opinion from others, they were charged with assuming absolute authority, with principles of despotism, overturning the Government, &c. Mr. V. said, it was his opinion, that in all laws which came before that House, every member had a full right to say yea or nay, for which they were not accountable to that gentleman, or to any other. The other branches of Government had also the same power. Indeed, the other House had exercised this right in negativing the repeal of the law relative to the manning of these vessels. He trusted both Houses would always continue to assert their right thus to use their discretion and privilege. Mr. AMES said, he had not charged that House with usurping power, or breaking down the other branches of Government; nor did he say they had not a discretion; but that their discretion ought to be regulated by duty. Mr. SWANWICK said, amidst all the foreign objections which had been urged against this appropriation, he wished the act passed last session to be referred to. [Mr. S. read an extract from it.] Here, in April last, said he, it is provided that the frigates shall be finished, and yet now gentlemen wished the House to come to a conclusion only to half finish them. What, he asked, would the world think of such a versatility of conduct? Mr. KITCHELL thought, if they meant to get through the business which lay before them, it was time they disposed of this question. He thought the debate upon it had been sufficiently long. Mr. BRENT said, when this subject first came before the committee, he had determined to give the sum necessary to complete them; nor had he ever wavered on the subject, until he heard the ground which had been taken by the gentleman from Massachusetts, (Mr. AMES.) He did most feelingly participate in the sentiments expressed by his colleague (Mr. VENABLE) on the occasion. It was really difficult to know what was the amount of his doctrines. In the first instance, he understood the gentleman to rise for two purposes, viz: to justify the Executive from certain charges which had been brought against him, and to show the obligation which the House lay under to grant the money. In the first place, the gentleman said the Executive had been charged with violating the law; and, when he went into the subject, he understood him to say, as his colleague understood him, that the Executive had changed the plan; he understood him to say, that though Congress had ordered 44-gun frigates, he had ordered 74's, which remark he concluded by expressing his approbation of the PRESIDENT's conduct. If he admitted that the Executive had violated the law, and yet felicitated him upon having done so, he might enjoy his pleasure, he would not participate with him. With respect to the second part of his observations, as to the absolute necessity under which every member lay to vote for the sum required for finishing the frigates, because the building of them was directed by law, this was a most important point. He thought this involved one of the most valuable principles which that House possessed, and which should never be lost sight of, viz: the right of every member to exercise his discretion upon every question, appropriations as well as others, which came before him. Did not the gentleman know that the most solemn decision had taken place last session on this subject, by a large majority? Indeed, said he, this sentiment was so ingrafted in the constitution that the House could not divest themselves of it; for the gentleman to say they did not possess it, was to make a dead letter of their privileges. There could be no doubt on the subject; and it was a sacred and essential principle which would go further to preserve our liberties than any other which they possessed. He trusted, therefore, they should guard it with special care. Mr. GALLATIN said, he did not mean to follow the gentleman from Massachusetts in what he had said on this subject, because he had not felt the force of what he had advanced, nor very well understood what he meant. Both his meaning and his motive for bringing this subject before them to-day were to him mysterious. He had brought before them the Treaty question anew, and it would be recollected what were the feelings of the House on that occasion; but he could see no relation which it bore to the present question; and though a number of members in that House had asserted that they were bound to appropriate money to carry a treaty into effect, he did not believe they were ready to say the same with respect to laws. The gentleman from Massachusetts had said, that if they put a meaning upon the constitution in this respect different from him, that they arrogated the supreme power to themselves. Did not he know that the doctrine applied to the Senate as well as to that House? and did he not see that that would be a check upon the abuse of it in either House, since it was a weapon which both could use? The gentleman had said they were bound to obey the law. Bound to obey what law? The law for authorizing the building of the three frigates? He did not understand how this law was to bind them. This was a mere administrative law, which did not extend to the citizens of the United States, but gave power to the PRESIDENT to do a certain act; therefore, as citizens, they had nothing to do with that law, except they were to obey it by appropriating the money necessary to carry it into effect. Yet the gentleman allowed there might be cases in which it would be right to use discretion in the appropriation of money. For his part, he did not understand the being bound and not bound at the same time; to have discretion and no discretion. He wished either that the one or the other opinion might be adopted; and that they might be told that they had, or that they had not, a right to exercise discretion in the appropriation of money. If this exercise were to be allowed in any case, why could it not be allowed in the present? He wondered, therefore, that gentlemen in favor of this motion should have touched upon this ground. He agreed with the gentleman that they had this discretion, and that it ought to be used with caution, and not upon trifling occasions. But he conceived this to be one of those occasions in which it was necessary for those opposed to a Naval Establishment, to vote against this appropriation. He meant against the appropriation in its extent. It was because he considered a Naval Establishment as highly injurious to the interests of this country, he should vote against every measure which had a tendency to produce it. That gentleman, and others who thought differently, would vote accordingly. Mr. G. moved an amendment, viz: that before the word "frigates," to add "the hulls of." On the question, ayes 45, noes 44--the Chairman giving his vote against the amendment, it was not carried. It was then put in the original form, to finish the frigates, the sum of ---- dollars, and carried--ayes 54. The question on the blank being filled with $172,000 was then put, and carried--ayes 47. Mr. GALLATIN moved to add an item to pay the bounty of one hundred dollars which they had agreed should be paid to every officer discharged from the military service in consequence of the regulations which had taken place in the establishment. This item was filled up with three thousand dollars. Mr. GALLATIN moved to add the following words: "which several sums shall be solely applied to the objects for which they are respectively appropriated." Mr. W. SMITH wished, as much as the gentleman from Pennsylvania, to confine the expenditure to the sums appropriated; but the provision for some objects might fall short, while others might have a surplus, which he thought ought to be made use of to supply deficiencies in cases of emergency. Ever since the establishment of the present Government, the whole appropriation for the Military Establishment had been considered as an aggregate fund out of which any of the objects of that establishment might be paid for; but the expense of each object was now to be confined to the specific appropriation. He was afraid, however well this might look in theory, it would be found very mischievous in practice. He wished the gentleman would amend his proposition by adding, "so far as may be consistent with public exigency;" this would restrict the expenditures, except in unforeseen cases of emergency, to provide for which some latitude of discretion ought to be left to the Executive. Mr. SITGREAVES did not see the necessity or propriety of the amendment of his colleague, when the House had distributed the appropriations amongst the different objects; as the amendment, he conceived, meant nothing more than the department should not expend any more than the sum appropriated for the different items, which they had no right to do if there were no amendment. Heretofore, when appropriations were made in a mass, the Secretary of War did not feel himself bound to govern himself by the estimate which he had given in, but by particularizing the different items, the former evil was corrected. Mr. GALLATIN said, if the fact was exactly as it had been stated by his colleague, his amendment might be unnecessary, but the Treasury Department had not acted upon the principle which he had stated. They had, notwithstanding the distribution of the appropriation, thought themselves at liberty to take the money from an item where there was a surplus, and apply it to another, where it was wanted. And when this was objected to, as taking from the Legislature their appropriating power, they answered that the Legislature had entered so much into detail that they could not attend to their directions. They had, last session, made the appropriations more specific than at present, yet the Secretary of the Treasury, in a letter written to the House during this session, said, "that it was well known to have been a rule since the establishment of the Government, that the appropriations for the Military Establishment were considered as general grants of money, liable to be issued to any of the objects included under that department." Therefore, unless this amendment was introduced, it would leave the power as before. In order to make the business more easy, all the contingent expenses were appropriated in one sum. The object of this amendment, said Mr. G., was that no part of the pay of the Army should go to the Quartermaster's Department, &c., and that none of them should go to the building or equipping the frigates; but if this were not the case, money might be found to get the frigates to sea from the appropriations for the Military Department, if the PRESIDENT should think it necessary so to apply it. As to the amendment, it would do away the intention of it altogether. Mr. HARPER was against the amendment. He thought the Department ought to be at liberty, in case of an appropriation proving deficient, to have recourse to other funds where there might be a surplus, and as none would be taken, except where there was a surplus, he could see no objection to this being allowed. Indeed, for want of such a privilege very serious inconveniences might arise to the service, in case of accident or unforeseen events. Mr. GALLATIN said, the law did not operate in the manner which the gentleman last up supposed. They had lately voted a sum of forty thousand dollars to make good a deficiency of last year, which had been used for some other purpose; in consequence the deficiency fell upon the pay of the Army, although that could not increase, because the number of men was never increased; it might be less, as the nominal, not the actual number of men was appropriated for. Mr. KITTERA thought the amendment a bad one. Suppose, said he, a boat should be overset with tents in the lake, or a magazine blown up, the losses could not be repaired, because, though there might be surplus sums in the Treasury from other items in the establishment, yet, if this amendment prevailed, they could not be touched. He thought this would be the effect; he was against innovations. The amendment was put and carried, there being fifty-four votes in favor of it. The committee then rose, and the House took up the amendments. And then the main question, "to finish the frigates ---- dollars," was taken by yeas and nays, as follows: YEAS.--Fisher Ames, Abraham Baldwin, Theophilus Bradbury, Richard Brent, Daniel Buck, Dempsey Burges, Joshua Coit, William Cooper, William Craik, Samuel W. Dana, James Davenport, Henry Dearborn, George Dent, George Ege, William Findlay, Abiel Foster, Dwight Foster, Nathaniel Freeman, jr., Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Chauncey Goodrich, Roger Griswold, William B. Grove, Robert Goodloe Harper, Carter B. Harrison, Thomas Hartley, John Heath, William Hindman, John Wilkes Kittera, Edward Livingston, Samuel Lyman, Francis Malbone, John Milledge, Frederick A. Muhlenberg, William Vans Murray, John Nicholas, Alexander D. Orr, Josiah Parker, Elisha R. Potter, John Read, Samuel Sewall, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac Smith, William Smith, Thomas Sprigg, John Swanwick, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, John A. Van Allen, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, and John Williams. NAYS.--Theodorus Bailey, David Bard, Thomas Blount, Nathan Bryan, Samuel J. Cabell, Gabriel Christie, Thomas Claiborne, John Clopton, Isaac Coles, Jesse Franklin, Albert Gallatin, James Gillespie, Christopher Greenup, Andrew Gregg, Wade Hampton, John Hathorn, Jonathan N. Havens, James Holland, Andrew Jackson, George Jackson, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, Andrew Moore, Anthony New, John Patton, John Richards, Israel Smith, Richard Sprigg, jr., William Strudwick, and Abraham Venable. The question to fill the blank with $178,000 was then put and carried--ayes 47, noes 42, and the bill ordered for a third reading to-morrow. FRIDAY, March 3. _Call for Statements._ Mr. GALLATIN said, he wished to propose to the House three resolutions, calling for statements relative to the War Department, which he wished to be laid before the House at the next session. They had heard it said upon that floor, by gentlemen who were considered to be well acquainted with the subject, that many expenses had taken place in that Department which ought to have been checked. Conceiving a check of this kind to be necessary, and knowing the expense of the Military Department was increasing from year to year, beyond what the increase in the number of troops would warrant, it was proper to lay the foundation of an inquiry into the subject. Indeed, having just passed a pretty severe law relative to the Receivers of Public Money, and understanding that the Secretary of the Treasury had a long list of delinquents, he was desirous of taking some steps in the business. From these considerations, he offered the following resolutions for acceptance: "_Resolved_, That the Secretary of the Treasury be directed to lay before the House of Representatives, within the first week of January next, abstracts of the accounts of all paymasters, quartermasters, contractors, agents for the purchase of supplies, and generally of all the Receivers of Public Moneys, paid from the Treasury from the 1st of January, 1791, to the 1st of January, 1797, on account of the Military Establishment, so as to exhibit a detailed statement of the whole amount of moneys thus expended to that period; and whether any of the accounts be not finally settled; and shall lay before the House an estimate of moneys not accounted for. "_Resolved_, That the Secretary of the Treasury be directed to lay, at the same time, before the House of Representatives similar abstracts of the accounts of all the Receivers of Public Money expended for the building of the frigates. "_Resolved_, That it shall be the duty of the Secretary of the Treasury to lay before the House of Representatives, within the last week of January in each year, a statement of money expended for the Military Establishment during the next preceding year, distinguishing the sums expended under each head, for which specific appropriations have been made, and an estimate of the probable unsettled demands in relation to each of those heads." The resolutions were severally agreed to. EVENING SESSION. _Military and Naval Appropriations._ The bill appropriating money for the Military and Naval Establishments, was received from the Senate with an amendment, proposing to do away the restriction which had been introduced into the bill to confine the expenditure of money to the specific objects for which each sum is appropriated. Mr. DANA hoped the House would recede from the amendment. Mr. GALLATIN said that, by the constitution, no money was to be granted but by a law passed in the regular mode. Now, said Mr. G., this is not by law, if, after a certain sum is granted for one item, it be not used for that purpose, but put to some other object. This was certainly according to the spirit of the constitution, and if you do not strictly abide by that, you may as well set aside the constitution, and say we will appropriate $6,000,000 for the support of Government for the present year. If we mean to carry the constitution into effect we must reject the amendment. Mr. SITGREAVES observed, that his opinion on this point was, that the House had a constitutional power to depart from any identifying of articles to sums granted, and that departure grew out of necessity; for the extreme embarrassment which would attend the practice of a strict adherence, would render it impracticable. But, as he did not mean to stand responsible for the motion, he should be satisfied with calling for the yeas and nays; which were agreed to be taken. Mr. NICHOLAS thought, that when gentlemen went on supporting such unlimited measures as had lately taken place, and voting such a waste of money, it would be very dangerous. When we see large sums voted for an army and navy in time of peace, said he, it would justify us in adopting some regulation to prevent it. The difference between the operation of this and the other mode is, that in this you confine your public officers to the identical object for which a sum is appropriated; otherwise they might use what they would call overplus money for any object they might think fit. According to this method, proposed by the Senate, any sum may be taken from any certain object, and placed to any other, which Mr. N. thought too unbounded a power to be placed in the Executive. Mr. PARKER said, he would not pretend to justify the expenditure on the Military Establishment, but he could not help observing that the casualties to which the forage and clothing, &c., which is transported to our garrisons, are exposed, are very great. Though at peace with the Indians, it is but a temporary one, and we cannot be sure they will not intercept our stores; besides other accidents to which it is exposed, all which make it necessary that the hands of the Executive should not be tied from using the surplusage of some, for the accidental and unforeseen deficiencies of others; without this the Army may be exposed to the most poignant distress, owing to a deficiency in the appropriation, while the Treasury has money in hand as surplus from other objects. Considering the great importance of an appropriation, he hoped gentlemen would not so incline to oppose the bill, especially, said he, when our existence will not, as a Legislative body, be more than four hours, and, in that time, it must pass other authorities before it can be put into effect; if it is lost, the effects will be bad. Mr. P. said he had as many scruples as any gentleman, and would take every measure to preserve the constitution inviolate, but he should be sorry if, under the fear of offending it, the Government should be stopped. Mr. HEATH.--If my existence was to be but for one moment, I would stand here and oppose this resolution; to let it pass, is precluding the freedom of inquiry into the conduct of our public officers. If we were to commence this loose kind of a way of appropriating, we may go on to do this, that, and the other, until we were too far to stop. Were we to indulge ourselves to go into the wide fields of accident, we might suppose this and that, but our imaginations would have no end. He lamented the shortness of the time they had to discuss it. Mr. GILBERT acknowledged this was the age of reason, but he was sorry the House should be inclined to adopt an entire new doctrine of privileges. We should not hazard a new position, when it may be attended with the greatest danger; therefore he hoped they would agree with the Senate. Mr. HARPER thought it would not be very difficult to convince gentlemen who oppose it, that the amendment was calculated to secure the very object they wished. It was not a violation of the constitution, as some gentlemen supposed. He would ask, could not an appropriation be made for the use of the Military Establishment in general terms? Yes, he would answer; else how could an appropriation in general terms have been made for the intercourse with foreign nations? Certainly it could not be unconstitutional to appropriate the overplus of one article to supply the deficiency of another. One moment's reflection, Mr. H. thought, would convince members of the error of a contrary opinion. It might not be safe to do it without law, but here is a law allowing it. The whole must suffer if the War Department is deficient, which cannot be avoided if one is not to assist another branch, for it is scarce possible to guard against every contingency. He thought the amendment beneficial in the highest degree, and without it, would stop the War Department in its operations. He hoped no delay would take place, as it endangered the bill. Mr. VARNUM said, that notwithstanding all that gentlemen might produce to prove the necessity of giving the Executive large powers, yet it was dangerous; he instanced that, if the Executive were determined to man and equip the frigates for sea, they would have power to do it from money appropriated, and intended for other purposes; thus it was transferring a power, solely vested in the Legislature, into the Executive Department. He thought it was an infringement on the constitution; it was putting the power where it never was intended to be; although he had great respect for that department, yet he did not wish to see its powers extended too far. A gentleman had intimated he should not wish the bill to be altered, if he was sure there would not be war with the Indians. He would answer that there could not be a war until the Legislature met again. Mr. V. said, that there was one-fifth more money appropriated than could be used before the next meeting of Congress, for there would be two months of the present year's appropriation, during any part of which another bill might be passed. Mr. SWANWICK thought there was no danger of the bill being lost; it was necessary to discuss a principle which appeared to admit of danger; it was throwing the whole of the money to the mercy of the Treasury Department. Mr. PAGE said he should vote for the amendment, but he rose to express his disapprobation of it, and he should have been glad if there was time to make another bill. We must either suffer the community to abide under great disadvantages, or ourselves. If they could exist, politically, he said he should be happy to destroy that bill. He must acknowledge that it was crammed down his throat. Mr. LIVINGSTON said, that the reasons urged by the gentleman from Massachusetts, instead of the end he proposed, would have a contrary effect. Mr. L. believed that this amendment had a tendency to lessen the privileges of the House; believing this, no object of convenience, no view to the general opinion, should ever prevent him voting against it. He believed it pregnant with mischief. The Civil and Military Departments would be too easily connected; if the one wanted assistance, while the Treasury had money in hand it would be supplied. He thought the House had voted sufficient to answer every purpose intended, and he believed, whatever specious arguments may be used, the House would not recede. If any evil attended, he was willing to take his part of the blame; but he was not apprehensive of any. Mr. W. LYMAN hoped it would not pass, as it was full of danger and bad principles. Mr. W. SMITH said, the appropriation to the Military Establishment had always been considered a general grant of money; therefore it would introduce no new principles, but the manner of this bill, passed in this House the day before the close of the session, and sent up to the Senate the very day of the adjournment. Mr. S. said gentlemen talked about the constitution, but he thought they had wrong ideas of the evils of this business: it was not whether they gave too much power to their officers, but the Military Establishment could not go on; then the PRESIDENT would be obliged to alarm the whole nation, and incur a vast expense to get the Congress together, and all for want of due time and regulations: and now we must cram it down the throats of the Senate. Surely gentlemen should have some moderation, and not be so hightoned as to prevent any other branch of the Legislature from exercising their powers as well as us. On the question being taken to concur with this amendment, the yeas and nays stood, 38 to 52, as follows: YEAS.--Theophilus Bradbury, Daniel Buck, Dempsey Burges, Joshua Coit, Wm. Cooper, William Craik, Samuel W. Dana, James Davenport, George Dent, George Ege, Abiel Foster, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, William Hindman, John Wilkes Kittera, George Leonard, Samuel Lyman, Francis Malbone, John Page, Josiah Parker, Samuel Sewall, Samuel Sitgreaves, Nathaniel Smith, Isaac Smith, William Smith, Zephaniah Swift, George Thatcher, Richard Thomas, John E. Van Allen, Peleg Wadsworth, and John Williams. NAYS.--Theodorus Bailey, Abraham Baldwin, David Bard, Thomas Blount, Richard Brent, Nathan Bryan, Samuel J. Cabell, Gabriel Christie, Thomas Claiborne, John Clopton, Isaac Coles, Henry Dearborn, William Findlay, Jesse Franklin, Nathaniel Freeman, jr., Albert Gallatin, James Gillespie, Christopher Greenup, Andrew Gregg, Wade Hampton, John Hathorn, Jonathan N. Havens, John Heath, James Holland, Andrew Jackson, George Jackson, Edward Livingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Frederick A. Muhlenberg, Anthony New, John Nicholas, Alexander D. Orr, John Patten, Elisha R. Potter, John Read, John Richards, Robert Rutherford, John S. Sherburne, Thompson J. Skinner, Richard Sprigg, jr., Thomas Sprigg, William Strudwick, John Swanwick, Joseph B. Varnum, Abraham Venable, and Richard Winn. The bill was again sent to the Senate, and was soon after returned with the amendment receded from. _General Lafayette._ Mr. HARPER moved that a resolution, which he laid on the table yesterday, respecting Major General Lafayette, should be taken up for consideration. The motion was seconded by Mr. W. SMITH. The resolution was in the following words: "This House, strongly impressed with a just sense of the important and disinterested services rendered to their country during the late war by their fellow-citizen, Major General Lafayette, and deeply regretting the sufferings to which he is now subjected from a long and rigorous imprisonment, and which have equally excited their sympathy, and the ardent wish of their constituents for his deliverance, do resolve that the President of the United States be informed, that this House will see with the highest satisfaction, any measures which he may deem expedient to adopt towards effecting the restoration of their said fellow-citizen to liberty." The question was taken for the House to take it up, and lost--ayes 32, noes 52. Mr. LIVINGSTON said he had some time been wishing to put forward something similar; he really hoped some negotiation would be carried on to effect his liberation. It would be honorable to this country to interpose in behalf of this man, who has a claim on American service. While suffering for us on his part, let gratitude, and every feeling that can affect the heart, be ours. Abandoned by his own country, and to increase his sufferings, precluded from almost every enjoyment of life, it would be honorable in us to interest ourselves in his behalf, appropriating some small sum which may enable the PRESIDENT to make some progress towards his releasement. Thus, while it is honorable to America, if it has no effect, it may afford some comfort to the unfortunate sufferer, to think he is not forgotten. He then proposed a resolution, not materially varying from that just offered by Mr. HARPER, hoping that the little variation would prevent it suffering a similar fate. Mr. PARKER said, as it was a personal question, he hoped it would lie on the table. Mr. COIT thought it a delicate question, and one which ought not to be agitated, and therefore moved the previous question. Mr. HARTLEY spoke of Mr. PARKER's observing its personality. He answered that the man suffered much for this country, and therefore was entitled to regard. He acknowledged with Mr. COIT, that there was much delicacy in the business, and therefore hoped it would speedily be discussed; it ought not be postponed; the man is now suffering in a most distressing confinement. If any of the soldiers of 1789 were here with whom he was in council, there would not be a dissenting voice to using every exertion. He hoped the House would never forget such brilliant services. Mr. SWANWICK said, there need not be a dissenting voice, but we ought to be cautious how we multiply our negotiations, as this could not be done without entering into a negotiation with the Emperor of Germany in the regular way. It is not want of respect that should prevent us, but are we provided to go into all the consequences attending a new negotiation? There is a delicacy in it, of which we ought to be careful. There is not the least doubt but the PRESIDENT has as much desire for his release as any gentleman, but he, no doubt, deliberated, and saw the danger of it. Mr. S. said he lamented our foreign negotiations _in toto_. There was no good derived from them, and he could not anticipate any from new ones. Mr. NICHOLAS said, he felt as much disposition to take measures for his release as any man, but he thought the business undertaken too hastily. Suppose you give instructions to the PRESIDENT, and he does not think proper to act on it, so far from being a compliment to Lafayette, it would hurt his mind, should he hear it had been agitated. Mr. CLAIBORNE saw no difficulty attending the resolution. He hoped the House would render this essential service to the unfortunate sufferer, if even in the last hour of the Congress. Mr. CHRISTIE said, it was an improper time to take up the resolution, but as they had to sit there two or three hours longer and no business to do, this might as well occupy the attention of the House as not. Mr. LIVINGSTON would be sorry to impose a burden upon the country, but he thought this a duty incumbent on them. He hoped gentlemen would openly come forward and avow their sentiments, and not shelter themselves under the previous question. Remember, he came here from the pompous ease of a foreign court; he voluntarily served the cause of America, and bled for her; he, in a great measure, procured the interest which formed the alliance with France in our defence; besides spending a princely fortune in our cause, he asked nothing, nor would accept any compensation for his services: and now he is abandoned to the most dreadful situation possible; some of that compensation, justly due to his services, is refused him as a balm to his former woes by not attempting his release. This is the situation of the man for whom this House is asked only to express their desire for his comfort; this is the man who was met with pleasure in every part of the United States; all the people rejoiced to express their gratitude to him; he was accompanied with testimonials of admiration and thanks from the whole Continent: and now we should not say that we will feel with pleasure measures taken towards obtaining his liberty! We can pity him, and regret his situation, but refuse to lend him the least assistance to soothe his distress. We do not call upon the House to vent its infantine sorrow, to show its womanish pity. No. We call on it to express a will, predominant throughout the United States, in the behalf of this unfortunate man. But it is said that we should get the ill will of the nations who persecuted him. Unless they bid adieu to all the tender feelings of humanity, they never can take offence. It has been also supposed it would be ineffectual; he had no doubt but the Executive would take those measures which would be most effectual and least endangering to the nation; it could not make the situation of the sufferer worse, and if we succeed in procuring his liberty, it would give pleasure to every heart who can sympathize with the distressed, or feel gratitude for high obligations: and if it does not have that happy effect, still we may feel consolation at having done our duty. If these measures were taken, it would illuminate the loathsome horrors of a dungeon the most dreadful; it would sweep away the reproach "that Republicans know no gratitude;" that we, who had his best exertions whilst in prosperity, do not forget him in adversity. Mr. L. said he really believed that if he had not known the principles of liberty here, and helped us in our struggle for it, he would have never existed in misery in the dungeon at Olmutz, and therefore the highest obligations were laid on the United States to exert herself in his behalf. Mr. HEATH hoped, that, although the gentleman had labored to excite the pathetic, yet he would not charge the House with a want of Republicanism if the measure was not adopted. Mr. H. thought it extremely improper to be introduced in the House. He said the PRESIDENT knew the will of the United States on the subject, and therefore, if he saw proper, he could take it up. He hoped the gentleman would remember this was a complicated case; for, since he had left this country, he had become a citizen of another country. Mr. H. said he felt for his unfortunate situation: he had fought under his banner. We are not to be charged with a want of patriotism and feeling for this suffering hero, because we think it imprudent to interest and involve ourselves in his behalf, merely to indulge the flighty fancy of a few individuals. We might go, said he, and address the PRESIDENT to exert himself as far as he saw proper in his behalf, as a body of individuals, but not as a Legislature. Mr. W. SMITH could see no kind of impropriety in the measure. It had been said it was a new subject, and, therefore, ought not to be taken up now; but it was not introduced yesterday! Did gentlemen want an age to express an opinion which every member feels--which the whole nation feels? The motion only went to express a wish that measures may be taken according to the judgment of the Executive: if he had a thought or wish to adopt measures, this would encourage him to carry them into effect. Europe might feel a pleasure that we interested ourselves in his behalf. Did he not embark his all for this country? It has been well said, said Mr. S., that if the motion had been made in 1779 or 1780, no previous question would then have been called--no opposition then made. Read the journals of the National Representation for 1780 and 1783: there we find one member from each State was appointed to take leave of him in behalf of the whole. [Mr. S. here read the journals of that time, which insert at length the proceeding, address, and answer, attending the transaction.] There, said he, they expressed their zeal for his future welfare, and gratitude for his favors, accompanying it with a letter to the French King, requesting him to bestow his favors upon him. From the frequent respectful mention made of his services on the journals of the House, there appears to have been much attention paid to his services by Congress. Even the Parliament of Great Britain, he said, had discussed the question of his confinement; and should this House refuse, who are so much obliged by his services? Nothing that had been said, in opposition to it, could convince him but that we were called upon, by every tie of gratitude, to adopt the measure. The satisfaction of knowing that his services are not forgotten may render him more comfortable in his dungeon--may follow him into the deserts of Siberia, or wherever the cruel hand of oppression may send him. Mr. MADISON did not think there was time to do all the business requisite to render due justice to the motion, and he hoped the House would do more than was intended by the motion. He believed the only regular mode would be to appoint a committee to bring in a bill. He therefore moved that the House go into committee for that purpose. Mr. SITGREAVES said, according to the motion there was no necessity for this mode, as it was of a nature not to require the aid of another branch of the Legislature; it was quite sufficient if the House passed the resolution. He was sorry to hear the previous question called for to get rid of the subject, but he hoped it would not prevail: he thought this motion required early attention. He said attention was due to LAFAYETTE; America was highly indebted to him. It is a debt of justice, and ought to be paid; and while this House delays to interpose in his behalf he must remain in confinement. Those gentlemen who thought the House ought to interpose should think this is the very time, if any good is intended to be done: he therefore hoped they would not delay. Mr. HARPER said, if the subject was on the sending an ambassador to negotiate for the liberation of this man, it might with more propriety be opposed. He was surprised that any gentleman in the House should be opposed to expressing a wish for measures to be taken which may prove effectual for that purpose. When he had no need of our caresses, the United States resounded with his name: he was then met with tokens of respect and congratulation wherever he went. But now, pining under the cruel hand of despotic vengeance in a loathsome dungeon, weighed down by chains, with a scanty allowance; when we view his present, contrasted with his past, situation--embarking from the magnificent splendor of a French court, displeasing his sovereign--embarking himself, and hazarding every thing that was dear to him, in support of American liberty--is this the man, Mr. H. would ask, to whom America said, he should never cease to have her best wishes and endeavors for his good, when, in the most grievous captivity, we refuse to express a desire for a morsel of comfort to his depressed mind! What avail our toasts--our boasted recollections of him, and regret at his fate--if we take not every opportunity to alleviate that distress? But the worst of his misfortunes is not to lie in a dungeon: he is now racked with a fear of being sent into the inhospitable deserts of Siberia, whence is no hope ever to expect his return into the civilized world; and, with this unwelcome intelligence, the American Legislature refuses to express a wish for his deliverance! Who knows but the power in whose custody he is may expect America to interest herself in his favor? And by a pretext like this he might be liberated, or at least his fear of removal dissipated, and his present misery alleviated. Mr. H. said he was sure it would be highly gratifying to the citizens of America to hear of the measure; they had long expected it, and, if undertaken, he had the greatest hopes of its success, in a measure. If it should but tend to soften his present distress, it would be a happiness; but if its effects should be to restore to liberty one to whom America is so much indebted, it would amply repay whatsoever trouble is taken towards its accomplishment. Mr. W. LYMAN did not doubt of the services of the Marquis Lafayette; he was always the subject of adoration and the toast of this country. Besides, it has made him liberal grants for his services, and he thought there could be no proof that we were wanting in marks of esteem for him. With respect to the motion, Mr. L. asked, to whom was application to be made? Does any gentleman on this floor know who confined him, or by order of what government? No court are willing to avow it. Britain, France, and Prussia disavow it, and he believed the Emperor also. Until that was clear, the measure would be improper. May not the agitation of such a question in the House awaken a jealousy in some of those powers towards us, which may militate to our injury, and injure the man whom the attempt is meant to serve? Gentlemen have depicted his sufferings in very lively colors, said Mr. L., and were it in my power, or were it consistently in the power of the House, I should be very happy to afford relief. Until some of the difficulties in its way were cleared, he said, he should be forced to put his negative to it. He thought gentlemen who saw the matter so necessary, and the way so clear, had reason to reproach themselves for letting it sleep so long, and for having introduced it at the last hour of the session of the Houses. Mr. HARPER and Mr. LIVINGSTON said that nothing but the constant press of public business had prevented their motions sooner, and they thought there was even now time enough, as it only required the expression of a desire of the House for the object. Mr. BUCK said the services and sufferings of the Marquis were indelibly written on the hearts of all the citizens of America, and he thought there was no need of that torrent of oratory which had been displayed to affect the feelings of the House. He thought it would prove its weakness to suffer its feelings to predominate. We ought to give a decision only by the force of judgment, after due deliberation; for _feeling_ could not look forward to consequences. Were we implicitly to obey it, we should take many bad steps. Do we not know, said Mr. B., that he is among the persons proscribed by France? and, considering the very brittle situation of our peace with that country at present, we should be induced rather to strengthen than weaken our ties; for the motion goes to authorize the PRESIDENT to take _any_ measures to support Lafayette. This being the situation, we know not where the measures may end, and it would be a serious thing to be plunged in a war with France on that account. He hoped the House would not precipitate the business, but give themselves time to examine the consequences. This, Mr. B. said, had induced him to oppose the motion. Though congenial to his feelings, he therefore should vote for the previous, and against the main question. Mr. CLAIBORNE was against the previous question. He would hazard any thing for the happiness of a man we owe so much to--who sees, said he, the unfortunate man with his lady and daughter, under all the miseries that despotism and tyranny can inflict, in a wretched dungeon, without even the comforts of life! Here he appealed to the feelings of the members in a very forcible manner, and, with the most bitter invective, ardently wished the destruction of his cruel oppressors. He observed on the uneasiness the members of the House were in if public business detained them half an hour after the usual time of their dinners, and applied the case to this unfortunate man in continual confinement, and after all with miserable fare. The previous question was then put, "Shall the main question be now put?" and negatived--ayes 25. Mr. LIVINGSTON then brought forward a similar resolution, which caused very considerable debate, and was at length got rid of by the previous question. The principal objection to the adoption of this motion seemed to be the late period at which it was brought forward. All were agreed as to the merits and the misfortunes of the man, and had the motion been introduced at any other time than on the eve of the rising of the session, there could be little doubt it would have been agreed to by a very large majority.[13] _Thanks to the Speaker._ Mr. BLOUNT said he wished to offer a resolution to the House, which, as he was certain there could be no opposition to it, would occupy little of their time. He should wish the Clerk to read it, and take the sense of the House upon it. It was in the following words: "_Resolved_, That the thanks of this House be presented to JONATHAN DAYTON, in testimony of their approbation of his conduct in discharging the arduous and important duties assigned him while in the chair." The Clerk accordingly put the resolution, and it was unanimously carried; when-- The SPEAKER thus addressed the House: "GENTLEMEN: I feel myself deeply impressed with this fresh proof of your approbation of my conduct in the chair. The confidence and support which you have in every instance afforded me, in the station assigned to me, have alone enabled me to discharge the important duty with satisfaction to myself, and with advantage to the public." _Adjournment of the Session._ A message was received from the Senate, informing the House that they had appointed a committee to join a committee of that House, to wait upon the PRESIDENT to inform him they had finished their business, and, except he had any further communications to make, they were ready to adjourn, without day. The House then agreed to appoint a committee to join that of the Senate to wait upon the PRESIDENT, and Messrs. SITGREAVES, PARKER, and SHERBURNE being named, they accordingly waited upon the PRESIDENT; and-- Mr. SITGREAVES reported that the PRESIDENT had no further communication to make, except "that he wished them a happy return to their families and friends." The SPEAKER then adjourned the House _sine die_, at about eleven o'clock.[14] FIFTH CONGRESS.--FIRST SESSION. BEGUN AT THE CITY OF PHILADELPHIA, MAY 15, 1797.[15] PRESIDENT OF THE UNITED STATES,--JOHN ADAMS. LIST OF MEMBERS. SENATORS. _New Hampshire._--John Langdon, S. Livermore. _Vermont._--Nathaniel Chipman, Elijah Paine. _Massachusetts._--Benj. Goodhue, Theodore Sedgwick. _Rhode Island._--Theodore Foster, Ray Greene. _Connecticut._--James Hillhouse, Uriah Tracy. _New York._--John S. Hobart, John Laurance. _New Jersey._--John Rutherford, R. Stockton. _Pennsylvania._--William Bingham, James Ross. _Delaware._--Henry Latimer, John Vining. _Maryland._--John E. Howard, James Lloyd, _Virginia._--Stevens T. Mason, Henry Tazewell. _North Carolina._--Timothy Bloodworth, Alexander Martin. _South Carolina._--John Hunter, Jacob Read. _Georgia._--James Gunn, Josiah Tattnall. _Tennessee._--Joseph Anderson, Andrew Jackson. _Kentucky._--John Brown, Humphrey Marshall. REPRESENTATIVES. _New Hampshire._--Abiel Foster, Jonathan Freeman, William Gordon, Peleg Sprague. _Vermont._--Matthew Lyon, Lewis B. Morris. _Massachusetts._-Bailey Bartlett, Stephen Bullock, Dwight Foster, Nathaniel Freeman, Samuel Lyman, Harrison G. Otis, John Read, Samuel Sewall, William Shepard, Thompson J. Skinner, George Thatcher, Joseph B. Varnum, P. Wadsworth. _Rhode Island._--C. G. Champlin, Thomas Tillinghast. _Connecticut._--John Allen, Jona. Brace, Joshua Coit, Samuel W. Dana, James Davenport, O. Goodrich, Roger Griswold, Nathaniel Smith. _New York._--David Brooks, John Cochran, Lucas Elmendorph, Henry Glenn, J. N. Havens, Hezekiah L. Hosmer, E. Livingston, John E. Van Allen, Philip Van Cortlandt, John Williams. _New Jersey._--Jona. Dayton, James H. Imlay, James Schureman, Thomas Sinnickson, Mark Thompson. _Pennsylvania._--David Bard, Robert Brown, John Chapman, William Findlay, Albert Gallatin, Andrew Gregg, John A. Hanna, Thomas Hartley, Joseph Heister, John W. Kittera, Blair McClenachan, Samuel Sitgreaves, John Swanwick, Richard Thomas. _Delaware._--James A. Bayard. _Maryland._--George Baer, William Craik, John Dennis, George Dent, William Hindman, William Matthews, Samuel Smith, Richard Sprigg. _Virginia._--Richard Brent, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, Isaac Coles, John Dawson, Thomas Evans, Carter B. Harrison, David Holmes, Walter Jones, James Machir, Daniel Morgan, Anthony New, John Nicholas, Josiah Parker, Abram Trigg, John Trigg, A. B. Venable. _North Carolina._--Thomas Blount, Nathan Bryan, Dempsey Burges, James Gillespie, William B. Grove, Matthew Locke, Nathaniel Macon, Joseph McDowell, Richard Stanford, Robert Williams. _South Carolina._--Lemuel Benton, R. G. Harper, Thomas Pinckney, John Rutledge, William Smith, Thomas Sumter. _Georgia._--A. Baldwin, John Milledge. _Tennessee._--William C. C. Claiborne. _Kentucky._--Thomas T. Davis, John Fowler. PROCEEDINGS IN THE SENATE. The first session of the Fifth Congress, under the Constitution of Government of the United States, commenced at the city of Philadelphia, agreeably to the Proclamation of the PRESIDENT OF THE UNITED STATES, of the twenty-fifth day of March last, and the Senate accordingly assembled on this day, being MONDAY, May 15, 1797. PRESENT: THOMAS JEFFERSON, Vice President of the United States, and President of the Senate. JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire. BENJAMIN GOODHUE, from Massachusetts. THEODORE FOSTER and WILLIAM BRADFORD, from Rhode Island. JAMES HILLHOUSE and URIAH TRACY, from Connecticut. ISAAC TICHENOR, from Vermont. JOHN LAURANCE, from New York. WILLIAM BINGHAM, from Pennsylvania. HENRY LATIMER, from Delaware. JOHN E. HOWARD, from Maryland. STEVENS T. MASON, from Virginia. ALEXANDER MARTIN and TIMOTHY BLOODWORTH, from North Carolina. JOHN HUNTER, from South Carolina. JOSIAH TATTNALL, from Georgia. The Senators whose names are subjoined produced their credentials on the 4th day of March last, and took their seats in the Senate, viz: Mr. FOSTER, Mr. GOODHUE, Mr. HILLHOUSE, Mr. HOWARD, Mr. LATIMER, Mr. MASON, Mr. ROSS, and Mr. TICHENOR. WILLIAM COOKE, appointed a Senator by the State of Tennessee, produced his credentials, and the oath required by law being administered, he took his seat in the Senate. _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES, and acquaint him that a quorum of the Senate is assembled. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled, and ready to proceed to business. A message from the House of Representatives informed the Senate, that a quorum of the House is assembled, and have elected JONATHAN DAYTON their Speaker. A message from the House of Representatives informed the Senate that the House have appointed a joint committee on their part, together with such committee as the Senate may appoint, to wait on the PRESIDENT OF THE UNITED STATES, and inform him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. _Resolved_, That the Senate do concur in the appointment of a joint committee, and that Messrs. LIVERMORE and LANGDON be the joint committee on the part of the Senate. Mr. LIVERMORE reported, from the joint committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and had notified him that a quorum of the two Houses is assembled; and that the PRESIDENT OF THE UNITED STATES acquainted the committee that he would meet the two Houses in the Representatives' Chamber, at 12 o'clock to-morrow. TUESDAY, May 16. WILLIAM BLOUNT, from the State of Tennessee; THEODORE SEDGWICK, from the State of Massachusetts; and JOHN VINING, from the State of Delaware, severally attended. A message from the House of Representatives informed the Senate that the House are now ready to meet the Senate in the Chamber of that House, to receive such communications as the PRESIDENT OF THE UNITED STATES shall be pleased to make to them. Whereupon, The Senate repaired to the Chamber of the House of Representatives, for the purpose above expressed. The Senate returned to their own Chamber, and a copy of the Speech of the PRESIDENT OF THE UNITED STATES, this day addressed to both Houses of Congress, was read. _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: The personal inconveniences to the members of the Senate, and of the House of Representatives, in leaving their families and private affairs, at this season of the year, are so obvious, that I the more regret the extraordinary occasion which has rendered the convention of Congress indispensable. It would have afforded me the highest satisfaction to have been able to congratulate you on a restoration of peace to the nations of Europe, whose animosities have endangered our tranquillity; but we have still abundant cause of gratitude to the Supreme Dispenser of national blessings, for general health and promising seasons; for domestic and social happiness; for the rapid progress and ample acquisitions of industry, through extensive territories; for civil, political, and religious liberty. While other States are desolated with foreign war, or convulsed with intestine divisions, the United States present the pleasing prospect of a nation governed by mild and equal laws, generally satisfied with the possession of their rights; neither envying the advantages nor fearing the power of other nations; solicitous only for the maintenance of order and justice, and the preservation of liberty; increasing daily in their attachment to a system of government in proportion to their experience of its utility; yielding a ready and general obedience to laws flowing from the reason, and resting on the only solid foundation--the affections of the people. It is with extreme regret that I shall be obliged to turn your thoughts to other circumstances, which admonish us that some of these felicities may not be lasting; but, if the tide of our prosperity is full, and a reflux commencing, a vigilant circumspection becomes us, that we may meet our reverses with fortitude, and extricate ourselves from their consequences with all the skill we possess, and all the efforts in our power. In giving to Congress information of the state of the Union, and recommending to their consideration such measures as appear to me to be necessary or expedient, according to my constitutional duty, the causes and the objects of the present extraordinary session will be explained. After the President of the United States received information that the French Government had expressed serious discontents at some proceedings of the Government of these States, said to affect the interests of France, he thought it expedient to send to that country a new Minister, fully instructed to enter on such amicable discussions and to give such candid explanations as might happily remove the discontents and suspicions of the French Government and vindicate the conduct of the United States. For this purpose he selected from among his fellow-citizens a character whose integrity, talents, experience, and services, had placed him in the rank of the most esteemed and respected in the nation. The direct object of this mission was expressed in his letter of credence to the French Republic, being "to maintain that good understanding which, from the commencement of the alliance, had subsisted between the two nations, and to efface unfavorable impressions; banish suspicions, and restore that cordiality which was at once the evidence and pledge of a friendly union;" and his instructions were to the same effect, "faithfully to represent the disposition of the Government and people of the United States (their disposition being one) to remove jealousies and obviate complaints, by showing that they were groundless; to restore that mutual confidence which had been so unfortunately and injuriously impaired, and to explain the relative interests of both countries and the real sentiments of his own." A Minister thus specially commissioned, it was expected, would have proved the instrument of restoring mutual confidence between the two Republics; the first step of the French Government corresponded with that expectation. A few days before his arrival at Paris, the French Minister of Foreign Relations informed the American Minister, then resident at Paris, of the formalities to be observed by himself in taking leave, and by his successor preparatory to his reception. These formalities they observed; and on the ninth of December presented officially to the Minister of Foreign Relations, the one a copy of his letters of recall, the other a copy of his letters of credence. These were laid before the Executive Directory: two days afterwards, the Minister of Foreign Relations informed the recalled American Minister that the Executive Directory had determined not to receive another Minister Plenipotentiary from the United States until after the redress of grievances demanded of the American Government, and which the French Republic had a right to expect from it. The American Minister immediately endeavored to ascertain whether, by refusing to receive him, it was intended that he should retire from the territories of the French Republic, and verbal answers were given that such was the intention of the Directory. For his own justification he desired a written answer; but obtained none until towards the last of January; when receiving notice in writing to quit the territories of the Republic, he proceeded to Amsterdam, where he proposed to wait for instruction from this Government. During his residence at Paris, cards of hospitality were refused him, and he was threatened with being subjected to the jurisdiction of the Minister of Police, but with becoming firmness he insisted on the protection of the law of nations, due to him as the known Minister of a foreign power. You will derive further information from his despatches, which will be laid before you. As it is often necessary that nations should treat, for the mutual advantage of their affairs, and especially to accommodate and terminate differences, and as they can treat only by Ministers, the right of embassy is well known, and established by the law and usage of nations; the refusal on the part of France to receive our Minister is then the denial of a right; but the refusal to hear him, until we have acceded to their demands, without discussion, and without investigation, is to treat us neither as allies, nor as friends, nor as a sovereign State. With this conduct of the French Government, it will be proper to take into view the public audience given to the late Minister of the United States, on his taking leave of the Executive Directory. The speech of the President[16] discloses sentiments more alarming than the refusal of a Minister; because more dangerous to our independence and union; and at the same time studiously marked with indignities towards the Government of the United States. It evinces a disposition to separate the people of the United States from the Government; to persuade them that they have different affections, principles, and interests, from those of their fellow-citizens, whom they themselves have chosen to manage their common concerns; and thus to produce divisions fatal to our peace. Such attempts ought to be repelled with a decision which shall convince France, and the world, that we are not a degraded people, humiliated under a colonial spirit of fear and sense of inferiority, fitted to be the miserable instruments of foreign influence; and regardless of national honor, character, and interest. I should have been happy to have thrown a veil over these transactions, if it had been possible to conceal them; but they have passed on the great theatre of the world, in the face of all Europe and America, and with such circumstances of publicity and solemnity that they cannot be disguised, and will not soon be forgotten; they have inflicted a wound in the American breast; it is my sincere desire, however, that it may be healed. It is my desire, and in this I presume I concur with you, and with our constituents, to preserve peace and friendship with all nations; and believing that neither the honor nor the interest of the United States absolutely forbid the repetition of advances for securing these desirable objects with France, I shall institute a fresh attempt at negotiation, and shall not fail to promote and accelerate an accommodation, on terms compatible with the rights, duties, interests, and honor of the nation. If we have committed errors, and these can be demonstrated, we shall be willing to correct them. If we have done injuries, we shall be willing, on conviction, to redress them; and equal measures of justice we have a right to expect from France and every other nation. The diplomatic intercourse between the United States and France being at present suspended, the Government has no means of obtaining official information from that country; nevertheless, there is reason to believe that the Executive Directory passed a decree, on the second of March last, contravening, in part, the Treaty of Amity and Commerce, of one thousand seven hundred and seventy-eight, injurious to our lawful commerce, and endangering the lives of our citizens. A copy of this decree will be laid before you. While we are endeavoring to adjust all our differences with France by amicable negotiation, the progress of the war in Europe, the depredations on our commerce, the personal injuries to our citizens, and general complexion of affairs, render it my indispensable duty to recommend to your consideration effectual measures of defence. The commerce of the United States has become an interesting object of attention, whether we consider it in relation to the wealth and finances, or the strength and resources of the nation. With a sea-coast of near two thousand miles in extent, opening a wide field for fisheries, navigation, and commerce, a great portion of our citizens naturally apply their industry and enterprise to these objects. Any serious and permanent injury to commerce, would not fail to produce the most embarrassing disorders; to prevent it from being undermined and destroyed, it is essential that it receive an adequate protection. The Naval Establishment must occur to every man who considers the injuries committed on our commerce, the insults offered to our citizens, and the description of vessels by which these abuses have been practised. As the sufferings of our mercantile and seafaring citizens cannot be ascribed to the omission of duties demandable, considering the neutral situation of our country, they are to be attributed to the hope of impunity, arising from a supposed inability on our part to afford protection. To resist the consequences of such impressions on the minds of foreign nations, and to guard against the degradation and servility which they must finally stamp on the American character, is an important duty of Government. A Naval power, next to the Militia, is the natural defence of the United States. The experience of the last war would be sufficient to show, that a moderate Naval force, such as would be easily within the present abilities of the Union, would have been sufficient to have baffled many formidable transportations of troops from one State to another, which were then practised. Our sea-coasts, from their great extent, are more easily annoyed and more easily defended by a Naval force than any other. With all the materials our country abounds; in skill, our naval architects and navigators are equal to any; and commanders and seamen will not be wanting. But although the establishment of a permanent system of Naval defence appears to be requisite, I am sensible it cannot be formed so speedily and extensively as the present crisis demands. Hitherto I have thought proper to prevent the sailing of armed vessels, except on voyages to the East Indies, where general usage, and the danger from pirates, appeared to render permission proper; yet the restriction has originated solely from a wish to prevent collusions with the powers at war, contravening the act of Congress of June, one thousand seven hundred and ninety-four, and not from any doubt entertained by me of the policy and propriety of permitting our vessels to employ means of defence, while engaged in a lawful foreign commerce. It remains for Congress to prescribe such regulations as will enable our seafaring citizens to defend themselves against violations of the law of nations; and, at the same time, restrain them from committing acts of hostility against the powers at war. In addition to this voluntary provision for defence by individual citizens, it appears to me necessary to equip the frigates, and provide other vessels of inferior force to take under convoy such merchant vessels as shall remain unarmed. The greater part of the cruisers whose depredations have been most injurious, have been built, and some of them partially equipped in the United States. Although an effectual remedy may be attended with difficulty, yet I have thought it my duty to present the subject generally to your consideration. If a mode can be devised by the wisdom of Congress to prevent the resources of the United States from being converted into the means of annoying our trade, a great evil will be prevented. With the same view I think it proper to mention that some of our citizens resident abroad have fitted out privateers, and others have voluntarily taken the command, or entered on board of them, and committed spoliations on the commerce of the United States. Such unnatural and iniquitous practices can be restrained only by severe punishments. But besides a protection of commerce on the seas, I think it highly necessary to protect it at home, where it is collected in our most important ports. The distance of the United States from Europe, and the well-known promptitude, ardor, and courage of the people, in defence of their country, happily diminish the probability of invasion: nevertheless, to guard against sudden and predatory incursions, the situation of some of our principal seaports demands your consideration; and as our country is vulnerable in other interests besides those of its commerce, you will seriously deliberate whether the means of general defence ought not to be increased by an addition to the regular artillery and cavalry, and by arrangements for forming a provisional army. With the same view, and as a measure, which even in a time of universal peace ought not to be neglected, I recommend to your consideration a revision of the laws for organizing, arming, and disciplining the militia, to render that natural and safe defence of the country efficacious. Although it is very true, that we ought not to involve ourselves in the political system of Europe, but to keep ourselves always distinct and separate from it if we can, yet to effect this separation, early, punctual, and continual information of the current chain of events, and of the political projects in contemplation, is no less necessary than if we were directly concerned in them. It is necessary in order to the discovery of the efforts made to draw us into the vortex, in season to make preparations against them. However we may consider ourselves, the maritime and commercial powers of the world will consider the United States of America as forming a weight, in that balance of power in Europe, which can never be forgotten or neglected. It would not only be against our interest, but it would be doing wrong to one half of Europe, at least, if we should voluntarily throw ourselves into either scale. It is a natural policy for a nation that studies to be neutral, to consult with other nations engaged in the same studies and pursuits. At the same time that measures ought to be pursued with this view, our treaties with Prussia and Sweden, one of which is expired, and the other near expiring, might be renewed. _Gentlemen of the House of Representatives_: It is particularly your province to consider the state of the public finances; and to adopt such measures respecting them as exigencies shall be found to require. The preservation of public credit, the regular extinguishment of the public debt, and a provision of funds to defray any extraordinary expenses, will of course call for your serious attention. Although the imposition of new burdens cannot be in itself agreeable, yet there is no ground to doubt that the American people will expect from you such measures as their actual engagements, their present security, and future interests demand. _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: The present situation of our country imposes an obligation on all the departments of Government to adopt an explicit and decided conduct. In my situation, an exposition of the principles by which my administration will be governed ought not to be omitted. It is impossible to conceal from ourselves or the world, what has been before observed, that endeavors have been employed to foster and establish a division between the Government and people of the United States. To investigate the causes which have encouraged this attempt is not necessary; but to repel by decided and united councils insinuations so derogatory to the honor, and aggressions so dangerous to the constitution, union, and even independence, of the nation, is an indispensable duty. It must not be permitted to be doubted, whether the people of the United States will support the Government established by their voluntary consent, and appointed by their free choice, or whether by surrendering themselves to the direction of foreign and domestic factions, in opposition to their own Government, they will forfeit the honorable station they have hitherto maintained. For myself, having never been indifferent to what concerned the interests of my country, devoted the best part of my life to obtain and support its independence, and constantly witnessed the patriotism, fidelity, and perseverance of my fellow-citizens, on the most trying occasions, it is not for me to hesitate or abandon a cause in which my heart has been so long engaged. Convinced that the conduct of the Government has been just and impartial to foreign nations; that those internal regulations, which have been established by law for the preservation of peace, are in their nature proper, and that they have been fairly executed; nothing will ever be done by me to impair the national engagements, to innovate upon principles, which have been so deliberately and uprightly established, or to surrender in any manner the rights of the Government. To enable me to maintain this declaration, I rely upon God with entire confidence, on the firm and enlightened support of the National Legislature, and upon the virtue and patriotism of my fellow-citizens. JOHN ADAMS. _Ordered_, That Messrs. TRACY, LAURANCE, and LIVERMORE be a committee to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech this day to both Houses of Congress. WEDNESDAY, May 17. RICHARD STOCKTON, from the State of New Jersey, attended. THURSDAY, May 18. HENRY TAZEWELL, from the State of Virginia, attended. FRIDAY, May 19. JOHN HENRY, from the State of Maryland, attended. MONDAY, May 22. JOHN BROWN, from the State of Kentucky, and JACOB READ, from the State of South Carolina, severally attended. JOHN RUTHERFORD, appointed a Senator from the State of New Jersey, produced his credentials, which were read, and the oath required by law being administered to him, he took his seat in the Senate. TUESDAY, May 23. The Senate resumed the consideration of the report of the committee of the draft of an Address, in answer to the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress, at the opening of the session. On the motion to expunge the following paragraph, to wit: "We are happy, since our sentiments on the subject are in perfect unison with yours, in this public manner to declare, that the conduct of the Government has been just and impartial to foreign nations, and that those internal regulations, which have been established for the preservation of peace, are, in their nature, proper, and have been fairly executed." It was determined in the negative--yeas 11, nays 15, as follows: YEAS--Messrs. Bloodworth, Blount, Brown, Cocke, Henry, Hunter, Langdon, Martin, Mason, Tazewell, and Tattnall. NAYS--Messrs. Bingham, Bradford, Foster, Goodhue, Hillhouse, Howard, Laurance, Latimer, Livermore, Read, Rutherford, Sedgwick, Stockton, Tichenor, and Tracy. And the report being further amended, was adopted, as follows: SIR: The Senate of the United States request you to accept their acknowledgments for the comprehensive and interesting detail you have given in your Speech to both Houses of Congress, on the existing state of the Union. While we regret the necessity of the present meeting of the Legislature, we wish to express our entire approbation of your conduct in convening it on this momentous occasion. The superintendence of our national faith, honor, and dignity, being, in a great measure, constitutionally deposited with the Executive, we observe, with singular satisfaction, the vigilance, firmness, and promptitude, exhibited by you, in this critical state of our public affairs, and from thence derive an evidence and pledge of the rectitude and integrity of your administration. And we are sensible it is an object of primary importance, that each branch of the Government should adopt a language and system of conduct which shall be cool, just, and dispassionate, but firm, explicit, and decided. We are equally desirous, with you, to preserve peace and friendship with all nations, and are happy to be informed, that neither the honor nor interests of the United States forbid advances for securing those desirable objects, by amicable negotiation with the French Republic. This method of adjusting national differences is not only the most mild, but the most rational and humane, and with governments disposed to be just, can seldom fail of success, when fairly, candidly, and sincerely used. If we have committed errors, and can be made sensible of them, we agree with you in opinion that we ought to correct them, and compensate the injuries which may have been consequent thereon; and we trust the French Republic will be actuated by the same just and benevolent principles of national policy. We do, therefore, most sincerely approve of your determination to promote and accelerate an accommodation of our existing differences with that Republic, by negotiation, on terms compatible with the rights, duties, interests, and honor of our nation. And you may rest assured of our most cordial co-operation, so far as it may become necessary, in this pursuit. Peace and harmony with all nations is our sincere wish; but, such being the lot of humanity, that nations will not always reciprocate peaceable dispositions, it is our firm belief, that effectual measures of defence will tend to inspire that national self-respect and confidence at _home_, which is the unfailing source of respectability _abroad_, to check aggression, and prevent war. While we are endeavoring to adjust our differences with the French Republic, by amicable negotiation, the progress of the war in Europe, the depredations on our commerce, the personal injuries to our citizens, and the general complexion of affairs, prove to us your vigilant care, in recommending to our attention effectual measures of defence. Those which you recommend, whether they relate to external defence, by permitting our citizens to arm for the purpose of repelling aggressions on their commercial rights, and by providing sea convoys, or to internal defence, by increasing the establishments of artillery and cavalry, by forming a provisional army, by revising the militia laws, and fortifying, more completely, our ports and harbors, will meet our consideration, under the influence of the same just regard for the security, interest, and honor of our country, which dictated your recommendation. Practices so unnatural and iniquitous, as those you state, of our own citizens, converting their property and personal exertions into the means of annoying our trade, and injuring their fellow-citizens, deserve legal severity commensurate with their turpitude. Although the Senate believe that the prosperity and happiness of our country does not depend on general and extensive political connections with European nations, yet we can never lose sight of the propriety as well as necessity of enabling the Executive, by sufficient and liberal supplies, to maintain, and even extend, our foreign intercourse, as exigencies may require, reposing full confidence in the Executive, in whom the constitution has placed the powers of negotiation. We learn, with sincere concern, that attempts are in operation to alienate the affections of our fellow-citizens from their Government. Attempts so wicked, wherever they exist, cannot fail to excite our utmost abhorrence. A Government chosen by the people for their own safety and happiness, and calculated to secure both, cannot lose their affections, so long as its administration pursues the principle upon which it was erected. And your resolution to observe a conduct just and impartial to all nations, a sacred regard to our national engagements, and not to impair, the rights of our Government, contains principles which cannot fail to secure to your administration the support of the National Legislature, to render abortive every attempt to excite dangerous jealousies among us, and to convince the world that our Government, and your administration of it, cannot be separated from the affectionate support of every good citizen. And the Senate cannot suffer the present occasion to pass, without thus publicly and solemnly expressing their attachment to the constitution and Government of their country; and as they hold themselves responsible to their constituents, their consciences, and their God, it is their determination, by all their exertions, to repel every attempt to alienate the affections of the people from the Government, so highly injurious to the honor, safety, and independence of the United States. We are happy, since our sentiments on the subject are in perfect unison with yours, in this public manner to declare, that we believe the conduct of the Government has been just and impartial to foreign nations, and that those internal regulations which have been established for the preservation of peace, are in their nature proper, and have been fairly executed. And we are equally happy in possessing an entire confidence in your abilities and exertions in your station to maintain untarnished the honor, preserve the peace, and support the independence of our country; to acquire and establish which, in connection with your fellow-citizens, has been the virtuous effort of a principal part of your life. To aid you in these arduous and honorable exertions, as it is our duty, so it shall be our faithful endeavor. And we flatter ourselves, sir, that the proceedings of the present session of Congress will manifest to the world, that, although the United States love peace, they will be independent. That they are sincere in their declarations to be just to the French, and all other nations, and expect the same in return. If a sense of justice, a love of moderation and peace, shall influence their councils, which we sincerely hope, we shall have just grounds to expect peace and amity between the United States and all nations will be preserved. But if we are so unfortunate as to experience injuries from any foreign power, and the ordinary methods by which differences are amicably adjusted between nations shall be rejected, the determination "not to surrender in any manner the rights of the Government" being so inseparably connected with the dignity, interest, and independence of our country, shall by us be steadily and inviolably supported. THOMAS JEFFERSON, _Vice President of the United States, and President of the Senate_. _Ordered_, That the committee who prepared the Address wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. Mr. TRACY reported from the committee that they had waited on the PRESIDENT OF THE UNITED STATES, and that he would receive the Address of the Senate to-morrow, at 12 o'clock, at his own house. _Resolved_, That the Senate will, to-morrow, at 12 o'clock, wait on the PRESIDENT OF THE UNITED STATES accordingly. WEDNESDAY, May 24. ELIJAH PAINE, from the State of Vermont, attended. Agreeably to the resolution of yesterday, the Senate waited on the PRESIDENT OF THE UNITED STATES, and the VICE PRESIDENT, in their name, presented the Address then agreed to. To which the PRESIDENT made the following reply: _Mr. Vice President, and Gentlemen of the Senate_: It would be an affectation in me to dissemble the pleasure I feel on receiving this kind Address. My long experience of the wisdom, fortitude, and patriotism of the Senate of the United States, enhances in my estimation the value of those obliging expressions of your approbation of my conduct, which are a generous reward for the past, and an affecting encouragement to constancy and perseverance in future. Our sentiments appear to be so entirely in unison, that I cannot but believe them to be the rational result of the understandings and the natural feelings of the hearts of Americans in general, on contemplating the present state of the nation. While such principles and affections prevail, they will form an indissoluble bond of union, and a sure pledge that our country has no essential injury to apprehend from any portentous appearances abroad. In a humble reliance on Divine Providence, we may rest assured, that, while we reiterate with sincerity our endeavors to accommodate all our differences with France, the independence of our country cannot be diminished, its dignity degraded, or its glory tarnished, by any nation or combination of nations, whether friends or enemies. JOHN ADAMS. The Senate returned to their own Chamber, and adjourned. FRIDAY, May 26. HUMPHREY MARSHALL, from the State of Kentucky, attended. MONDAY, May 29. JAMES ROSS, from the State of Pennsylvania, attended. SATURDAY, June 24. The following confidential Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ The Dey of Algiers has manifested a predilection for American built vessels, and, in consequence, has desired that two vessels might be constructed and equipped, as cruisers, according to the choice and taste of Captain O'Brien. The cost of two such vessels, built with live oak and cedar, and coppered, with guns and all other equipments complete, is estimated at forty-five thousand dollars. The expense of navigating them to Algiers may, perhaps, be compensated by the freight of the stores with which they may be loaded on account of our stipulations by treaty with the Dey. A compliance with the Dey's request appears to me to be of serious importance. He will repay the whole expense of building and equipping the two vessels; and as he has advanced the price of our peace with Tripoli, and become pledged for that of Tunis, the United States seem to be under peculiar obligations to provide this accommodation; and I trust that Congress will authorize the advance of money necessary for that purpose. JOHN ADAMS. UNITED STATES, _June_ 23, 1797. _Ordered_, That it lie for consideration. SATURDAY, July 1. JAMES GUNN, from the State of Georgia, attended. WEDNESDAY, July 5. The VICE PRESIDENT obtained leave of absence for the remainder of the session. THURSDAY, July 6. The VICE PRESIDENT being absent, the Senate proceeded to the choice of a President _pro tempore_, as the constitution provides, and the Hon. WILLIAM BRADFORD was duly elected. FRIDAY, July 7. A message from the House of Representatives informed the Senate that the House have passed a resolution, that the President of the Senate, and the Speaker of the House of Representatives, be authorized to close the present session, by adjourning their respective Houses on Monday, the 10th day of this month; in which they desire the concurrence of the Senate. MONDAY, July 10. _Ordered_, That Mr. TRACY and Mr. READ be a joint committee on the part of the Senate, with such as the House of Representatives may appoint on their part, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that, unless he may have any further communications to make to the two Houses of Congress, they are ready to adjourn. A message from the House of Representatives informed the Senate that the House have appointed a joint committee on their part to wait on the PRESIDENT OF THE UNITED STATES, and notify him that, unless he may have any further communications to make to the two Houses of Congress, they are ready to adjourn. Mr. TRACY reported from the joint committee, that they had waited on the PRESIDENT OF THE UNITED STATES, agreeably to order, who replied, that he had no further communication to make to Congress, except a respectful and affectionate farewell. The PRESIDENT then adjourned the Senate without day. FIFTH CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. In pursuance of the authority given by the constitution, the PRESIDENT OF THE UNITED STATES, on the 25th day of March last, caused to be issued the Proclamation which follows: BY THE PRESIDENT OF THE UNITED STATES OF AMERICA: A PROCLAMATION. Whereas the Constitution of the United States of America provides that the President may, on extraordinary occasions, convene both Houses of Congress; and whereas an extraordinary occasion exists for convening Congress, and divers weighty matters claim their consideration, I have therefore thought it necessary to convene, and I do by these presents convene the Congress of the United States of America, at the City of Philadelphia, in the Commonwealth of Pennsylvania, on Monday the fifteenth day of May next, hereby requiring the Senators and Representatives in the Congress of the United States of America, and every of them, that, laying aside all other matters and cares, they then and there meet and assemble in Congress, in order to consult and determine on such measures as in their wisdom shall be deemed meet for the safety and welfare of the said United States. [Sidenote: [L. S.]] In testimony whereof, I have caused the seal of the United States of America to be affixed to these presents, and signed the same with my hand. Done at the City of Philadelphia the twenty-fifth day of March, in the year of our Lord one thousand seven hundred and ninety-seven, and of the Independence of the United States of America the twenty-first. JOHN ADAMS. By the President: TIMOTHY PICKERING, _Secretary of State_. MONDAY, May 15, 1797. This being the day appointed by the Proclamation of the PRESIDENT OF THE UNITED STATES, of the 25th of March last, for the meeting of Congress, the following members of the House of Representatives appeared, produced their credentials, and took their seats, to wit: _From New Hampshire._--ABIEL FOSTER and JONATHAN FREEMAN. _From Massachusetts._--THEOPHILUS BRADBURY, DWIGHT FOSTER, NATHANIEL FREEMAN, Jr., SAMUEL LYMAN, HARRISON GRAY OTIS, JOHN READ, SAMUEL SEWALL, WILLIAM SHEPARD, GEORGE THATCHER, JOSEPH BRADLEY VARNUM, and PELEG WADSWORTH. _From Rhode Island._--CHRISTOPHER G. CHAMPLIN and ELISHA R. POTTER. _From Connecticut._--JOSHUA COIT, SAMUEL W. DANA, JAMES DAVENPORT, CHAUNCEY GOODRICH, ROGER GRISWOLD, and NATHANIEL SMITH. _From Vermont._--MATTHEW LYON. _From New York._--DAVID BROOKS, JAMES COCHRAN, LUCAS ELMENDORPH, HENRY GLENN, JONATHAN N. HAVENS, HEZEKIAH L. HOSMER, EDWARD LIVINGSTON, JOHN E. VAN ALLEN, PHILIP VAN CORTLANDT, and JOHN WILLIAMS. _From New Jersey._--JONATHAN DAYTON, JAMES H. IMLAY, and MARK THOMPSON. _From Pennsylvania._--DAVID BARD, JOHN CHAPMAN, GEORGE EGE, ALBERT GALLATIN, JOHN ANDRE HANNA, THOMAS HARTLEY, JOHN WILKES KITTERA, BLAIR M'CLENACHAN, SAMUEL SITGREAVES, JOHN SWANWICK, and RICHARD THOMAS. _From Maryland._--GEORGE BAER, Jr., WILLIAM CRAIK, JOHN DENNIS, GEORGE DENT, WILLIAM HINDMAN, WILLIAM MATTHEWS, and RICHARD SPRIGG, Jr. _From Virginia._--SAMUEL JORDAN CABELL, THOMAS CLAIBORNE, MATTHEW CLAY, JOHN CLOPTON, JOHN DAWSON, THOMAS EVANS, WILLIAM B. GILES, CARTER B. HARRISON, DAVID HOLMES, WALTER JONES, JAMES MACHIR, DANIEL MORGAN, ANTHONY NEW, JOHN NICHOLAS, ABRAM TRIGG, and ABRAHAM VENABLE. _From North Carolina._--THOMAS BLOUNT, NATHAN BRYAN, JAMES GILLESPIE, WILLIAM BARRY GROVE, MATTHEW LOCKE, NATHANIEL MACON, RICHARD STANFORD, and ROBERT WILLIAMS. _From South Carolina._--ROBERT GOODLOE HARPER, JOHN RUTLEDGE, Jr., and WILLIAM SMITH, (of Charleston District.) _From Georgia._--ABRAHAM BALDWIN and JOHN MILLEDGE. And a quorum, consisting of a majority of the whole number, being present, The House proceeded, by ballot, to the choice of a SPEAKER; and, upon examining the ballots, a majority of the votes of the whole House was found in favor of JONATHAN DAYTON, one of the Representatives for the State of New Jersey: whereupon, Mr. DAYTON was conducted to the chair, from whence he made his acknowledgments to the House, as follows: "Accept, gentlemen, my acknowledgments for the very flattering mark of approbation and confidence exhibited in this second call to the chair, by a vote of this House. "Permit me, most earnestly, to request of you a continuance of that assistance and support, which were, upon all occasions, during the two preceding sessions, very liberally afforded to me; and, without which, all my exertions to maintain the order, and expedite the business of the House, must be, in a great degree, unsuccessful." TUESDAY, May 16. Several other members, to wit: from New Jersey, JAMES SCHUREMAN and THOMAS SINNICKSON; from Virginia, JOHN TRIGG; and from South Carolina, THOMAS SUMPTER, appeared, produced their credentials, were qualified, and took their seats in the House. _President's Speech._ It being near twelve o'clock, the SPEAKER observed that it had been usual on similar occasions to the present, to send a message to the Senate, to inform them that the House is now ready to attend them in receiving the communication of the PRESIDENT, agreeably to his appointment: such a message was agreed to, and sent accordingly. Soon after, the members of the Senate entered, and took the seats assigned them; and a little after twelve, the PRESIDENT OF THE UNITED STATES entered, and took the chair of the SPEAKER, (which he vacated on the entrance of the Senate, the President and Clerk of the Senate being placed on the right hand of the chair, and the Speaker of the House of Representatives and the Clerk on the left.) After sitting a moment, he rose and delivered the following Speech. [See Senate proceedings, _ante_.] Having concluded his Speech, after presenting a copy of it to the President of the Senate, and another to the Speaker of the House of Representatives, the President retired, as did also the members of the Senate; and the Speaker having resumed his chair, he read the Speech: after which, on motion, it was ordered to be committed to a Committee of the Whole to-morrow. WEDNESDAY, May 17. Several other members, to wit: from New Hampshire, WILLIAM GORDON and JEREMIAH SMITH; from Pennsylvania, ANDREW GREGG; appeared, produced their credentials, were qualified, and took their seats. _The President's Speech._ The House then went into a Committee of the Whole, Mr. DENT in the chair, on the President's Speech. It was read by the Clerk. Mr. CRAIK then moved a resolution, which, he observed, was merely a matter of form, as there had been one to the same effect, on every similar occasion. It was, "that it is the opinion of this committee, that a respectful Address should be presented to the President in answer to his Speech to both Houses of Congress, containing assurances, that this House will take into consideration the various and important matters recommended to their consideration." The committee agreed to the resolution. They rose, and it immediately passed the House in the common form. On motion, it was _Ordered_, That a committee be appointed to prepare an Answer to the Speech. Mr. VENABLE, Mr. KITTERA, Mr. FREEMAN, Mr. RUTLEDGE, and Mr. GRISWOLD, were nominated to report the Answer. FRIDAY, May 19. RICHARD BRENT, from Virginia, appeared, produced his credentials, was qualified, and took his seat. _Documents Referred to in the President's Speech._ The SPEAKER informed the House that he had received a communication from the Department of State, containing sundry documents referred to by the President in his Speech to both Houses, numbered from 1 to 18. He proceeded to read No. 1, viz: 1. A letter from General Pinckney to the Secretary of State, dated Paris, December 20, 1796, giving an account of his arrival at Bordeaux; of his journey from thence to Paris, in which, from the badness of the roads, he broke three wheels of his carriage; of the ill treatment he received from M. Delacroix, &c. He remarks, that it is not surprising that the French Republic have refused to receive him, since they have dismissed no less than thirteen foreign Ministers; and since they have been led to believe by a late emigrant, that the United States was of no greater consequence to them than the Republics of Genoa or Geneva. He also mentions, that it seemed to be the opinion in France, that much depended on the election of the President, as one of the candidates was considered the friend of England, the other as devoted to France. The people of France, he observes, have been greatly deceived, with respect to the United States, by misrepresentation, being led to believe that the people and Government have different views; but, adds he, any attempt to divide the people from the Government, ought to be to the people of the United States, the signal for rallying. Gen. Pinckney several times mentions Mr. Monroe in this letter with great respect; and says that before his arrival the Directory had been very cool towards him, but, since that time, they had renewed their civilities to him. 2. Is a report of Major General Mountflorence to General Pinckney, dated December 18, 1796, on the subject of American vessels brought prizes into the ports of France. 3. Extract of a letter from Gen. Pinckney to the Secretary of State, dated Paris, January 6, 1797, in which he mentions the distressed situation of American citizens, arriving in the ports of France, who were immediately thrown into prison, and could not be released, until an order was got from the American Minister, countersigned by the French Minister of Foreign Affairs; and no Minister being acknowledged there at present, no relief could be afforded. He, however, applied to M. Delacroix on their behalf, by means of the secretary, Major Rutledge, and got them attended to through the Minister of General Police. General Pinckney gives a further account of conversations which passed between his secretary and M. Delacroix, on the subject of his quitting Paris, in which he told him he must do so, or be liable to the operation of the police laws; but refused to commit his orders to writing. He mentions Barras's answer to Monroe's address as a curious production; but says it was not particularly calculated as an answer to what was said by Mr. Monroe, as he had it prepared, and was unacquainted with what would be said by Mr. Monroe. 4. Extract of a letter from Gen. Pinckney to the Secretary of State, dated Amsterdam, February 18, informing him, that, having had official notice to quit the French Republic, he had gone to Amsterdam. 5. Extract of a letter from General Pinckney to the Secretary of State, dated Amsterdam, March 5, in which he observes, that before he left Paris, it was rumored that the Dutch were determined to treat American vessels in the same manner as the French had done. He now believes that the French wished them to do so, as he had lately received intelligence that the Dutch had objected to do this, alleging that it would be a great injury to them, as they should then lose their trade with this country, and if so, they would be deprived of furnishing that support to the French which they then gave them. France acquiesced because she saw it was her interest; and having 25,000 troops in Batavia, it was generally known that they could do what they pleased with that country. The General adds, with detestation, that there are American citizens who fit out privateers to cruise against the trade of this country. 6. Extract of a letter from Major General Mountflorence to General Pinckney, dated Paris, February 14, mentioning the capture of a vessel from Boston, and another from Baltimore, by an American citizen on board a privateer: adding, that American citizens of this class are continually wishing for more rigorous laws against American commerce. 7. Extract of a letter from the same to the same, dated Paris, February 21, giving an account of two more American vessels being brought into L'Orient by the same man, and of another vessel taken by a French privateer. 8. Extract of a letter from General Pinckney to the Secretary of State, dated Amsterdam, March 8, mentioning the capture of several American vessels; he also speaks of the disagreeableness of his situation; and was of opinion that the new third of the French Councils would determine whether this country and France were to remain at peace or go to war. Though the former was desirable, he wished the measures of our Government to be firm. 9. Speech of Barras, President of the French Directory, on Mr. Monroe's recall. 10. The decree of the Executive Directory of March 2, relative to the seizure of American vessels. 11. Extract of a letter from John Quincy Adams, Esq., Minister Resident of the United States, near the Batavian Republic, to the Secretary of State, dated at the Hague, November 4, 1796, giving an account of the disposition of the people of that country towards this, which he states to be friendly; and this he attributes to its being their interest to be so. This country, he remarks, is the only quarter from which they receive regular payments. He adds, however, that they have no will in opposition to the French Government. 12. Extract of a letter from the Committee of Foreign Relations of the Batavian Republic, to the above Minister, dated September 27, 1796, making it appear very desirable that the United States should join them in their common cause against Great Britain, reminding him of the many services which they had rendered to this country. 13. Extract of a letter from John Quincy Adams in answer to the above, wherein he says he shall not omit to forward their letter to this country. 14. Extract of a letter from John Quincy Adams to the Secretary of State, dated Hague, February 17, 1797, representing the French Republic as paying as little attention to other neutral powers as to the United States. He alludes to their conduct towards Hamburg, Bremen, Copenhagen, &c. 15. Extract of a letter from Rufus King, Esq., to the Secretary of State, dated London, March 12, 1797, to the same effect. 16. A letter from the Minister of Spain, resident in Philadelphia, to the Secretary of State, dated May 6, 1797, complaining of the injurious operation of the British Treaty against Spain, in three respects, viz: as it destroys the doctrine of free ships making free goods; as it makes certain articles contraband of war, which in former treaties were not considered so; and as it gives to Great Britain a right to navigate the Mississippi, which that Minister insists belonged not to us to give, as it belonged wholly to Spain before it gave the right to the United States, by the late treaty, to navigate that river. He concludes his letter with saying, that the King of Spain is desirous of harmony between the two countries, and relies upon the equity of his complaints for satisfaction. 17. A letter from the Secretary of State to the Spanish Minister, in answer to the above; in which he acknowledges that the treaty lately concluded between the two countries had proved satisfactory to the United States, as it put an end to a dispute which had existed for many years respecting the navigation of the Mississippi, and also as it afforded satisfaction to our mercantile citizens for the capture of our ships and cargoes. All these, he allowed, were acts of substantial justice; but all the other stipulations were wholly voluntary, and perfectly reciprocal. With respect to the three articles of complaint respecting the British Treaty, he justified the stipulations as being just and consistent, and such as this country had a right to enter into. 18. A letter from General Pinckney to the Secretary of State, dated Paris, February 1, stating that the day after the arrival of the news of Buonaparte's successes in Italy, he received a letter from M. Delacroix, directing him to leave Paris. General Pinckney concludes this letter with observing, that the French seem to speak of this country as if it were indebted to them for independence, and not to any exertions of our own. Our treaty with Great Britain is execrated; they wish us to have no connection with that country; they wish to destroy the trade of Great Britain, and they look upon us as her best customer. The whole of these documents having been read, on motion, they were committed to the Committee of the Whole on the state of the Union, and 500 copies ordered to be printed. MONDAY, May 22. JAMES A. BAYARD, from Delaware, appeared, produced his credentials, was qualified, and took his seat. _Answer to President's Speech._ On motion, the House resolved itself into a Committee of the Whole, Mr. DENT in the chair, on the Answer reported to the President's Speech, which was read by the Clerk, as follows: The committee to whom it was referred to prepare an Answer to the Speech of the President of the United States, communicated to both Houses of Congress, on Tuesday, the 16th May, 1797, report the following: _To the President of the United States_: SIR: The interesting detail of those events which have rendered the convention of Congress at this time indispensable, (communicated in your Speech to both Houses,) has excited in us the strongest emotions. Whilst we regret the occasion, we cannot omit to testify our approbation of the measure, and to pledge ourselves that no considerations of private inconvenience shall prevent, on our part, a faithful discharge of the duties to which we are called. We have constantly hoped that the nations of Europe, whilst desolated by foreign wars, or convulsed by intestine divisions, would have left the United States to enjoy that peace and tranquillity to which the impartial conduct of our Government has entitled us; and it is now with extreme regret we find the measures of the French Republic tending to endanger a situation so desirable and interesting to our country. Upon this occasion, we feel it our duty to express, in the most explicit manner, the sensations which the present crisis has excited, and to assure you of our zealous co-operation in those measures which may appear necessary for our security or peace. Although the first and most ardent wish of our hearts is that peace may be maintained with the French Republic and with all the world, yet we can never surrender those rights which belong to us as a nation; and whilst we view with satisfaction the wisdom, dignity, and moderation, which have marked the measures of the Supreme Executive of our country, in its attempts to remove, by candid explanations, the complaints and jealousies of France, we feel the full force of that indignity which has been offered our country in the rejection of its Minister. No attempts to wound our rights as a sovereign State will escape the notice of our constituents: they will be felt with indignation, and repelled with that decision which shall convince the world that we are not a degraded people; that we can never submit to the demands of a foreign power without examination, and without discussion. Knowing, as we do, the confidence reposed by the people of the United States in their Government, we cannot hesitate in expressing our indignation at the sentiments disclosed by the President of the Executive Directory of France, in his Speech to the Minister of the United States. Such sentiments serve to discover the imperfect knowledge which France possesses of the real opinions of our constituents. An attempt to separate the people of the United States from their Government, is an attempt to separate them from themselves; and although foreigners who know not the genius of our country may have conceived the project, and foreign emissaries may attempt the execution, yet the united efforts of our fellow-citizens will convince the world of its impracticability. Happy would it have been, if the transactions disclosed in your communication had never taken place, or that they could have been concealed. Sensibly, however, as we feel the wound which has been inflicted, we think with you, that neither the honor nor the interest of the United States forbid the repetition of advances for preserving peace; and we are happy to learn that fresh attempts at negotiation will be commenced; nor can we too strongly express our sincere desires that an accommodation may take place, on terms compatible with the rights, interest, and honor of our nation. Fully, however, impressed with the uncertainty of the result, we shall prepare to meet with fortitude any unfavorable events which may occur, and to extricate ourselves from the consequences, with all the skill we possess, and all the efforts in our power. Believing with you that the conduct of the Government has been just and impartial to foreign nations; that the laws for the preservation of peace have been proper, and that they have been fairly executed, the Representatives of the People do not hesitate to declare that they will give their most cordial support to the execution of principles so deliberately and uprightly established. The many interesting subjects which you have recommended to our consideration, and which are so strongly enforced by this momentous occasion, will receive every attention which their importance demands; and we trust, that by the decided and explicit conduct which will govern our deliberations, every insinuation will be repelled which is derogatory to the honor and independence of our country. Permit us, in offering this Address, to express our satisfaction at your promotion to the first office in the Government, and our entire confidence that the pre-eminent talents and patriotism which have placed you in this distinguished situation, will enable you to discharge its various duties with satisfaction to yourself, and advantage to our common country. The Clerk having finished reading the Answer, the Chairman proceeded to read it paragraph by paragraph. The three first paragraphs were read without any thing being said upon them; but, upon the fourth being read-- Mr. EVANS moved, that instead of "will be felt with _indignation_," should be inserted, "will be felt with _sensibility_," as a milder phrase; as he wished to avoid using expressions more harsh than was necessary. Mr. NICHOLAS said, if his colleague would give him leave, he believed he had an amendment to offer, which would be proper to be offered before one he had moved, as he believed there was a rule in the House which forbids the striking out a clause after it had been amended; and if the amendment he should propose obtained, it might be necessary to strike out a part of that paragraph. It was his intention to move a new paragraph, to be inserted between the first and second. He believed it would be in order to do so. The Chairman wished the proposition to be read. Mr. NICHOLAS asked if it was not always in order to insert a new section. The Chairman believed it was, provided it was not intended as a substitute for another. Mr. NICHOLAS said he should candidly avow it to be his intention to insert several new sections. For the information of the committee, he would, therefore, read the whole, though he meant at present, to move only one. The following are the propositions which Mr. N. read in his place; the first of which was under consideration: After the first section insert: "Although we are actuated by the utmost solicitude for the maintenance of peace with the French Republic, and with all the world, the rejection of our Minister and the manner of dismissing him from the territories of France, have excited our warmest sensibility; and, if followed by similar measures, and a refusal of all negotiation on the subject of our mutual complaints, will put an end to every friendly relation between the two countries; but we flatter ourselves that the Government of France only intended to suspend the ordinary diplomatic intercourse, and to bring into operation those extraordinary agencies which are in common use between nations, and which are confined in their intention to the great causes of difference. We therefore receive with the utmost satisfaction, your information that a fresh attempt at negotiation will be instituted; and we expect with confidence that a mutual spirit of conciliation, and a disposition on the part of the United States to place France on the footing of other countries, by removing the inequalities which may have arisen in the operation of our respective treaties with them will produce an accommodation compatible with the engagements rights, duties, and honor of the United States. "We will consider the several subjects which you have recommended to our consideration, with the attention which their importance demands, and will zealously co-operate in those measures which shall appear necessary for our own security or peace. "Whatever differences of opinion may have existed among the people of the United States, upon national subjects, we cannot believe that any serious expectation can be entertained of withdrawing the support of the people from their constitutional agents, and we should hope that the recollection of the miseries which she herself has suffered from a like interference, would prevent any such attempt by the Republic of France; but we explicitly declare for ourselves and our constituents that such an attempt would meet our highest indignation, and we will repel every unjust demand on the United States by foreign countries; that we will ever consider the humiliation of the Government as the greatest personal disgrace." Mr. THATCHER observed, the gentleman from Virginia had read three or four paragraphs, in the form of amendments. He presumed he did not mean to add these, without striking out some part of the report. He wished him to say what part he meant to strike out, that they might see how the Answer would stand when amended in the way he proposed. If they stood together, they would be inconsistent. Mr. GILES presumed it was the object of the committee to bring into view a comparison of ideas in some shape or other, and he thought the amendment proposed was calculated to produce this effect. If he understood the Answer as reported, it was predicated upon the principle of approving all the measures which had been taken by the Executive with respect to France, whilst the amendment avoided giving that approbation. The simple question was, which of the two grounds the House would take? He believed the best way of ascertaining this, would be to move to insert, and if the amendments were carried, to recommit the report, to be made conformable to them. Mr. GALLATIN said, when an amendment was carried which affected other parts of a composition, it was not usual to strike out, but to recommit. The Chairman having declared the motion to be in order, Mr. NICHOLAS said, the present crisis was, in his mind, the most serious and important which this country had known since the declaration of its independence; and it would depend much, perhaps, upon the Answer which they were about to return to the Speech of the President, whether we were to witness a similar scene of havoc and distress to that which was not yet forgotten; such as had been passed through upon an important occasion, but such as could be entered upon only as a last resource. The situation in which we stood with respect to France called for the most judicious proceeding; it was his wish to heal the breach, which was already too wide, by temperate, rather than widen it by irritating measures. He hoped, on this occasion, they should get rid of that irritation which injury naturally produced on the mind. He declared he felt for the insult which had been offered to Mr. Pinckney; and he felt more for him, from the dignity with which he had borne it, which had proved him a proper character for the embassy. He was sorry that it should have been thought necessary by the French Republic to refuse to acknowledge him as the Minister of this country; but he did not think it right to suffer this first impression to influence their proceedings upon this business. If the insults offered were a sufficient cause for war, let the subject be examined by itself, separate from all others; but, if it be our wish to proceed with negotiation, he thought it wisest and best to adopt a firm but moderate tone. As he before observed, he felt for the situation of the gentleman employed by this country; he thought it was a trying one, and did great honor to himself, and he deserved the thanks of his country for the good temper with which he had sustained it; but Mr. N. confessed the subject did not strike him with all the force with which it seemed to have impressed the mind of that respectable character. He did not consider the insult offered to Government as going further than the ill-treatment which our Minister had received. He believed that the circumstances, which appeared in the papers laid before them, in some degree accounted for the conduct of the French Government. It appears that at first the Directory were willing to receive Mr. Pinckney, but when they saw his credentials they refused to acknowledge him. This circumstance, he said, seemed to give a character to the transaction which explained its meaning. It will be recollected, said Mr. N., that since the cause, or imagined cause (let it be one or the other) of complaint against this country, that there has been an intercourse between the two Governments on this subject. It was to be expected that if there had been any intention in Government to have come to an adjustment of the difference between the two countries, our Minister would have been clothed with some power of accommodation. Mr. N. supposed that when the French Directory agreed to receive him, this was their opinion; but upon seeing his letters of credence, they found no such power was given or intended. [He read the object of his mission from the President's Speech, viz: "faithfully to represent," &c.] If these, he said, were all the objects expressed in his letters of credence--and if there had been more, the President would doubtless have informed them of it--the matter perfectly justified the character he had given of it. He made these observations, because he thought on an occasion like the present, the truth should be made to appear, and though an insult had been offered to this country, which could not fail to produce irritation, yet that irritation should stop short of the point where it would produce action, as he was certain any steps taken which might hazard the peace of the country, would not conduce to the welfare of its citizens. There was a subject, he said, which seemed to have involved itself with this, and of which he should take some notice, viz: a charge against certain persons with being attached to the French cause. It might, perhaps, be the opinion of some members of that House, more particularly of strangers, that he was improperly influenced by party zeal in favor of the French, a zeal which it had been blazoned forth existed to an immoderate degree in this country. He had frequently heard insinuations of this sort, which he considered so groundless as to be worthy only of contempt; but when charges of this kind were made in the serious manner in which they were now brought forward, it was necessary to call for proof. Who, said he, is the man who has this proof? He knew of none. For his own part, he had no intercourse with the French but of the commonest kind. He wished those who possessed proofs of improper conduct of this kind, would come forward and show them--show who are the traitors of whom so much is said. He was not afraid of the impressions any such charges brought against him, might make upon his constituents, or where he was known; indeed, he had not the arrogance to believe the charge was levelled against him, though he believed he was frequently charged with a too great attachment to the French cause. When he first came into that House, he found the French embroiled with all their neighbors, who were endeavoring to tear them to pieces. He knew what had been the situation of this country when engaged in a similar cause, and was anxious for their success. Was there not cause for anxiety, when a nation, contending for the right of self-government, was thus attacked? Especially when it was well known, that if the powers engaged against France had proved successful, this country would have been their next object. Had they not, he asked, the strongest proofs (even the declarations of one of their Governors) that it was the intention of England to declare war against America, in case of the successful termination of the war against France? It redounded to the honor of the citizens of this country, he said, that they had never shown a disposition to embark in the present European war. The difference, Mr. N. said, between the Address reported, and the proposition he had brought forward was this: the former approved all the measures of the Executive, and the latter recommended an inquiry relative to the operation of the British Treaty. It was this question upon which the committee would decide, and it was of importance, he said, that they should weigh the causes of difference between us and the French Republic, and not decide that we are right, without examination, because, if, after being brought to hostility, we are obliged to retract, it would show our former folly and wantonness. Mr. N. said he would inquire into the rights of France as they respected three principal subjects, which were more particularly causes of complaint between the two countries. These were, the right of our vessels carrying English goods, the article respecting contraband goods, and that respecting the carrying of provisions. He knew no better way to determine how far we could support those articles of the British Treaty, than by extracting the arguments of our own ministerial characters in support of these measures. With respect to the question of free ships making free goods, his impressions were very different from those of the Secretary of State. He says, with respect to the regulation of free ships making free goods, it is not changing a right under the law of nations; that it had never been pretended to be a right, and that our having agreed to it in one instance, and not in another, was no just cause of complaint by the French Government. He advocates this transaction in his letter to Mr. Adet last winter. Mr. N. said, he knew not what was the origin of the law of nations upon the subject; he knew not how it came into existence; it had never been settled by any convention of nations. Perhaps, however, the point now under consideration came as near to a fixed principle, as any other of what are called the laws of nations ever did, as only one nation in Europe could be excepted from the general understanding of it. Mr. Pickering, he thought, seemed not to have given full force to this circumstance, but seemed to have weakened the evidence. [He referred to what Mr. Pickering had said upon the subject.] It was Mr. Pickering's idea, that the stipulation of free ships making free goods, was a mere temporary provision; that it was not an article in the law of nations, but a new principle introduced by the contracting parties. In order to prove this was not the case, Mr. N. referred to the provisions entered into by the armed neutrality of the north of Europe; to a treaty between France and Spain; to a note from the Court of Denmark; and to the declaration of the United States themselves on the subject. With respect to contraband articles, he had little to say. It was asserted that the articles stipulated in the British Treaty as contraband, were made so by the law of nations. Where the doctrine was found he could not say. It had been quoted from _Vattel_; this authority might be correct; but he never found any two writers on this subject agree as to this article. In a late publication on the law of nations (_Marten's_) he found it directly asserted that naval stores were not contraband. But he said, if the contrary were the law of nations, they were bound to extend the same privilege to France which they gave to England: they could not have one rule for the one nation, and a different one for the other. The 18th article of the British Treaty, respecting the carrying of provisions, always struck him as a very important one. It had heretofore been contended that this article did not go to any provisions except such as were carrying to besieged or blockaded places; but he believed the British had constantly made it a pretence for seizing provisions going to France. Indeed, if he was not mistaken, the British Minister had publicly declared in the House of Commons, that the provisions on board the vessels intended for the Quiberoon expedition had been supplied from what had been captured in American vessels. Mr. N. contended that this was the opinion of the Executive of this country, as published in all the public papers, and of course known to the Government of France. In the letter of Mr. Jefferson to Mr. Pinckney in 1793, he declares that there is only one case in which provisions are contraband, and shows the necessity of a neutral nation observing the same rules towards all the powers at war. But, in the present case, the right was ceded during the present war. It was an unfortunate circumstance against the neutrality of this country, to find a doctrine so differently applied at different times. It was a strong proof of the progress of the passions. It might be considered as a fraudulent thing, in one instance, to give up a right for a compensation to ourselves. Mr. N. concluded with observing that he had gone over the subject, he feared, not without being considered tedious by the committee; but he felt himself greatly interested in the present decision. He believed any additional irritation in their measures would place peace out of our reach. He believed, therefore, it was their business to avoid it. He believed it would be for the honor and happiness of the country to do so. Mr. W. SMITH said, as the gentleman last up had taken a wide range of argument, he must excuse him if he confined himself, in his reply, to those parts of his observations only which appeared to him essentially to relate to the subject under consideration. He believed the question was, whether they should alter the report in the manner proposed; that is, whether they should strike out words which expressed the sensibility of this House at the unprovoked insults offered by the French Republic to our Government and country, or adopt the gentleman's amendment, which he read. If they agreed to this amendment, they must necessarily expect from the French Republic fresh insult and aggression; for it seemed to admit that hitherto no insult had been intended. The amendment might be divided, Mr. S. said, into two parts. The first went to vindicate the French from any intentional insults towards this country: it even held out an idea that the Executive ought to offer some concessions to France, and even designated the kind of concession. He should, therefore, without taking notice of what the gentleman had said about the political parties of this country, or what he had said respecting himself personally, confine his observations to the points in question. The first point was, whether the conduct of France was justifiable in rejecting our Minister, and sending him from the Republic in the manner they had done? He thought the committee had abundant materials before them completely to refute the first proposition; and he was surprised, knowing that these documents were in the hands of every member, that the gentleman from Virginia could expect to impress their minds with the idea that no indignity whatever had been offered by the French Government to this country in that transaction. Mr. S. said, that it appeared most clearly that the French Directory intended to treat this Government with marked indignity; for though the gentleman from Virginia suggested an opinion that their refusal to receive Mr. Pinckney was owing altogether to his not being invested with extraordinary powers, this was evidently not the case, as the Directory had been well informed as to the character in which Mr. Pinckney came, before they received his letters of credence, as appears by the letter of M. Delacroix to Mr. Monroe, styling Mr. Pinckney his successor, and by other documents communicated by the President, (which he read.) There was no doubt, then, with respect to the Directory being well acquainted with the character in which Mr. Pinckney went to France, viz: as Minister Plenipotentiary or ordinary Minister; but, after keeping him in suspense near two months, on the day after the news arrived of Bonaparte's successes in Italy, he was ordered, by a peremptory mandate, in writing, to leave the French Republic. This mandate was accompanied by a circumstance which was certainly intended to convey an insult; it was addressed to him as an Anglo-American, a term, it is true, they sometimes used to distinguish the inhabitants of the United States from those of the West India Islands, but, in his opinion, here evidently designed as a term of reproach, as he believed no other similar instance could be mentioned. Upon this circumstance, however, he laid no stress; the other indignities which our Minister had received were too great to require any weight to be given to this circumstance. The gentleman from Virginia had confined the complaints of the French Government to three articles of the British Treaty; though, if the committee referred to the letter of Mr. Delacroix, it would be found that they did not confine them within so narrow a compass. They complain, first, of the inexecution of treaties; there are several points of complaint relative to that head. 2d. Complaints against the decrees of our Federal Courts. 3d. Against the law of June, 1794; and, 4th. Against the Treaty with Great Britain. Yet the gentleman confines himself altogether to the latter. And really he did not expect at this time of day, after the subject had been fully discussed, and determined, and the objections refuted over and over again, that any gentleman would have endeavored to revive and prove their complaints on this head well founded. The three articles were: 1st, that free ships did not make free goods; 2d, the contraband article; and 3d, the provision article. 1. The stipulation with respect to neutral vessels not making neutral goods in the British Treaty, was not contrary to the law of nations; it only provided that the law of nations was to be carried into effect in the manner most convenient for the United States. But this doctrine, he said, was no new thing. It had been acknowledged most explicitly by Mr. Jefferson, Secretary of State, in July, 1793, and was so declared to the Minister of France; yet no objection was made to it until the British Treaty was ratified, though long previous thereto French property was captured on board our vessels. Mr. Jefferson, writing on this subject to the French Minister, said: "You have no shadow of complaint;" the thing was so perfectly clear and well understood by the law of nations. This happened as long ago as July or August, 1793. But two years afterwards, when the British Treaty was promulgated, the whole country was thrown into a flame by admitting this very same doctrine. France herself had always acted under this law of nations, when not restrained by treaty: in _Valin's_ Ordinances of France this clearly appears. The armed neutrality was confined to the then existing war; Russia herself, the creator of the armed neutrality, entered into a compact with England, in 1793, expressly contravening its principles. The principle was then not established by our Treaty with England; but such being the acknowledged law of nations, it was merely stipulated that it should be exercised in the manner least injurious to us. 2. The next article of complaint was with respect to contraband goods. If gentlemen will consult the law of nations, they will find that the articles mentioned in the British Treaty are by the law of nations contraband articles. They will find that in all the treaties with Denmark and Sweden, Great Britain had made the same stipulation. Indeed, the gentleman had acknowledged that it was so stated by some writers on the law of nations; but he wished to derogate from the authority of those writers, in the same way as Mr. Genet, in his correspondence with Mr. Jefferson, had called them "worm-eaten folios and musty aphorisms;" to _Vattel_ might be added _Valin's_ Ordinances, a very respectable work in France. How, then, can the gentleman with truth say that we have deviated from the law of nations? 3. The last point which the gentleman took notice of was the provision article. There was no doubt that this Government would never allow provisions to be deemed contraband, except when going to a besieged or blockaded port. Though he made this declaration, yet it was but candid to acknowledge that this was stated by _Vattel_ to be the law of nations. [He read an extract from _Vattel_.] When this was stated by Lord Grenville to Mr. Pinckney, our then Minister in London, Mr. Pinckney acknowledged it to be so stated in _Vattel_, but very ingeniously argued that France could not be considered as in the situation mentioned in _Vattel_, since provisions were cheaper there than they were in England, and therefore the case did not apply. When our Envoy was sent to London, both parties were tenacious on this ground. Our Minister was unwilling to agree to this construction of the law of nations; but the British Minister insisted upon it, and if there had not been some compromise, the negotiation must have been broken off, and a war probably ensued. The result was, therefore, that, without admitting it to be the law of nations, it was agreed that where provisions were contraband by the law of nations, they should be paid for, but not confiscated, as the law of nations (admitting that construction) would have authorized. Therefore some advantage was secured to France, for if Great Britain had confiscated our vessels going to France with provisions, it would certainly have damped the ardor of our citizens employed in that commerce; but under this regulation our merchants were certain of being paid for their cargoes, whether they arrived in France or were carried into England. These were the three grounds of objection which the gentleman from Virginia had stated as grounds of complaint by the French against the British Treaty. Before he went further, he would observe that, admitting (which he did not admit) that there had been solid grounds of objection against the British Treaty, before it was ratified, yet they ought now to be closed. It had received a full discussion at the time; it had been carried into effect, was become the law of the land, and was generally approved of by the country. Why, then, endeavor to stir up the feelings of the public against it by alleging it to be just cause of complaint? If the committee wanted any proof of the approbation which that instrument had received, he thought it might be gathered from the general approbation which had been given of the administration of the late President on his retirement from office, in doing which the people had doubtless taken into view the whole of his conduct. Nor did he think the people had shown any hostility to the Treaty in their late election of members to that House. Indeed, he believed that the approbation which the Treaty received increased in proportion as the subject came to be understood. Admitting further, that the Treaty had changed the existing state of things between Great Britain and France, by having granted commercial favors to Great Britain; by the 2d article of our treaty with France, the same favors would immediately attach to France, so that she could have no reason to complain on that ground. Indeed France had herself new modified the treaty between that country and this, and had taken to herself what she deemed to be the favors granted to Great Britain. [Mr. S. read the decree on this subject of 2d March last.] Mr. S. said, he believed he had examined all the observations of the gentleman from Virginia, relative to the Treaty, which were essential to the subject under consideration. He did not wish to go much farther on the present occasion, because he agreed with him, that it was proper they should keep themselves as cool and calm as the nature of the case would admit; but he thought whilst so much deference was paid to the feelings of France, some respect ought to be paid to the feelings of America. He hoped the people of America would retain a proper respect and consideration for their national character; and however earnestly he wished that the differences subsisting between the two countries might be amicably settled, yet, he trusted that our national dignity would never be at so low an ebb as to submit to the insults and indignities of any nation whatever. In saying this, he expressed his hearty wish to keep the door of negotiation with France unclosed; but at the same time he strongly recommended to take every necessary step to place us in a situation to defend ourselves, provided she should still persist in her haughty demeanor. Mr. S. said, as he knew indecent and harsh language always recoiled upon those who used it, he did not wish to adopt it; but, at the same time, it was due to ourselves to express our feelings with a proper degree of strength and spirit. He was not in the habit of quoting any thing from M. Genet, but there was one expression of his which he thought contained good advice, "all this accommodation and humility, all this condescension attains no end." After the gentleman from Virginia had dwelt sufficiently upon the danger of irritating the French, he had emphatically called upon us to recollect our "weakness." It might have been as well if he had left that to have been discovered from another quarter. He hoped we had sufficient confidence in the means of defence which we possessed, if driven to the last resort; and he believed if there was any one more certain way of provoking war than another, it was that of proclaiming our own weakness. He hoped such a language would now be spoken as would make known to the French Government that the Government and people of this country were one, and that they would repel any attempt to gain an influence over our Councils and Government. The gentleman had said that there did not appear to be any design of this kind, and had endeavored to do away what was stated as the opinion in France, in General Pinckney's letter. He did not mean to rest this altogether upon the reports of an emigrant, whom General Pinckney mentions as having represented this country divided, and of no greater consequence than Genoa or Geneva, but he took the whole information into view. [He read the extract relative to this subject.] It was evident, Mr. S. said, from this information from France, that an opinion had been industriously circulated there that the Government and people of this country were divided; that the Executive was corrupt and did not pursue the interests of the people; and that they might, by perseverance, overturn the Administration, and introduce a new order of things. Was not such an opinion of things, he asked, calculated to induce France to believe that she might make her own terms with us? It was well known what the French wished, and it was time to declare it plainly. His opinion was that they designed to ruin the commerce of Great Britain through us. This was evident. They talk of the British Treaty; but they suffered it to lie dormant for near twelve months, without complaining about it. Why were they silent till within a few weeks before the election of our President? Why did they commit spoliations upon our commerce long before the British Treaty was ever dreamt of? Their first decree, directing spoliations of our property, and the capture of our provision ships, was on the 9th of May, 1793, a month before the provision order of Great Britain, which was dated June 8, 1793; and why have they, from that time to this, been committing spoliations on our commerce? The British Treaty was published in Paris in August, 1795; a year after, in July, 1796, they determine to treat us in the same way that we suffer other nations to treat us, and this decree was not made known to our Government till the October following, a few weeks before the election of President. But this was not all; the French had pursued similar measures towards all the other neutral powers. Sweden, in consequence, had no Minister in their country, and was on the eve of a rupture. The intention of the French evidently was, to compel all the neutral powers to destroy the commerce of Great Britain; but he trusted this country had more spirit than to suffer herself to be thus forced to give up her commerce with Great Britain; he trusted they would spurn any such idea. Mr. S. hoped the observations which he had made would not be construed into a wish to see the United States and France involved in a war. He had no objection to such measures being taken for preserving peace between the two countries as should be consistent with national honor. It was a delicate thing for them to suggest what the Executive ought to do. It was out of their province to direct him. The Executive had various considerations to take into view. We had injuries to complain of against France, for the spoliations committed upon our commerce. If the Executive conceive we have a right to redress, that subject will of course constitute a part of our Envoy's instructions. Would it then be proper, said he, for this House to interfere with the Executive, to obtrude its opinion and say, "You must give up this point; we take upon us (without any authority by the constitution) to give _carte blanche_ to France, without any indemnification or redress." The gentleman says it is the object of the amendment on the table to recommend to the Executive to remove any inequalities in the treaties; that was alone sufficient to vote it out. There had been no period since the Revolution which had so powerfully called on Americans for that fortitude and wisdom which they knew so well how to display in great and solemn emergencies. It was not his intention to offend any one by stating the question in such strong terms; but he was persuaded that when the present situation of our affairs with respect to France was well understood, it would be found that to acquiesce in her present demands was virtually and essentially to surrender our self-government and independence. TUESDAY, May 23. Two other members, to wit: from North Carolina, JOSEPH MCDOWELL, and from Virginia, JOSIAH PARKER, appeared, produced their credentials, were qualified, and took their seats. _Answer to the Presidents Speech._ The House then went into a Committee of the Whole, Mr. DENT in the chair, on the amendment of Mr. NICHOLAS to the report of the select committee, in answer to the President's Speech. Mr. FREEMAN first rose. He observed, that in his observations on the subject before the committee, amid the conflicting opinions of gentlemen whom he respected, he did not mean to express his own either with confidence or with zeal. Though one of the committee that had reported the Address, he could not approve it _in toto_. He had two principal objections to it. First, to that part which went to an unequivocal approbation of all the measures of the Executive respecting our foreign relations; and, secondly, to that part which contained expressions of resentment and indignation towards France. In framing an answer to the President, he conceived the committee should have refrained from expressing an unqualified approbation of all the measures of the Executive. To omit it would not imply censure. By introducing it, it forced all those who entertain even doubts of the propriety of any one Executive measure to vote against the Address. The principal causes of the irritation on the part of France, insisted upon in the Answer, were the rejection of our Minister, and the sentiments contained in the Speech of the President of the Directory to our late Minister. If gentlemen would look into the documents laid before the House by the President, he was confident they would find the true reason for the refusal to receive our Minister. He came only as an ordinary Minister, without any power to propose such modifications as might lead to an accommodation, and when the Directory discovered this from his credentials they refused him. In answer to this, it had been urged that M. Delacroix, Minister of Foreign Affairs, from the first, well knew that Mr. Pinckney was only the successor to Mr. Monroe, and that his coming in that quality was not the reason why the French refused to receive him. Mr. F. referred to the documents which had been laid before the House on this subject, from which it appeared that the secretary of M. Delacroix had suggested a reason for the apparent change of opinion on the subject of receiving Mr. Pinckney. Suppose, the secretary observed, that M. Delacroix had made a mistake at first in the intentions of the Directory, was that mistake to be binding on the Directory? He did not wish to be understood to consider the conduct of the French as perfectly justifiable; but he could not conceive that it was such as to justify, on our part, irritating or violent measures. As to the Speech of the President of the Directory, he could not say much on it, he did not perfectly understand it. As far as he did, he considered it a childish gasconade, not to be imitated, and below resentment. [He read part of it]. It was certainly arrogant in him to say that we owed our liberty to their exertions. But if the French could derive any satisfaction from such vain boasting he had no objection to their enjoying it. There was another part of the Speech that had been considered as much more obnoxious. It was said to breathe a design to separate the people here from their Government. The part alluded to was no more than an expression of affection for the people; he could see nothing in this irritating or insulting; it was a mode of expression which they used as to themselves, and by which they wished to convey their affection for the whole nation. The term people, certainly included the Government, and could not with propriety, therefore, be said to separate the people from it. An idea had been thrown out by the gentleman from South Carolina, that the people generally approved of the British Treaty; he inferred it from the fate of the late elections. For his part he could see no great alteration to have been produced by the late elections; and if there had been it would not have been an evidence to his mind that the people approved of the British Treaty. He believed, for his part, that the opinions of a great majority of the people had been uniformly averse to it; and those who advocated it were by this time nearly sick of it. It was true a spirit was aroused by the cry of war at the time the subject of appropriation was pending, that produced petitions, not approving however of the stipulations of the treaty, but asking that it might be carried into effect since it had reached so late a stage. Another engine, he observed, had been wielded with singular dexterity. Much had been effected by the use, or rather abuse, of the terms federalist and anti-federalist, federalism and anti-federalism. When the Federal Constitution was submitted to the people, to approve it, and endeavor to procure its ratification, it was federalism. Afterwards, when the Government was organized and in operation, to approve every measure of the Executive and support every proposition from the Secretary of the Treasury, was federalism; and those who entertained even doubts of their propriety, though they had been instrumental in procuring the adoption of the constitution, were called anti-federalists. In 1794 to be opposed to Madison's propositions, the resolution for the sequestration of the British debts, and the resolution prohibiting all intercourse with Great Britain, was federalism. In 1796 it was federalism to advocate the British Treaty; and now he presumed that it would be federalism to support the report of the committee and hightoned measures with respect to France. In 1793 he acknowledged that federalism assumed a very different attitude from what it had on the present occasion; it was then the attitude of meekness, of humanity, and supplication. The men who exclusively styled themselves federalists, could only deplore with unavailing sighs the impotence of their country, and throw it upon the benevolence and magnanimity of the British Monarch. Their perturbed imaginations could even then see our cities sacked and burnt, and our citizens slaughtered. On the frontier they heard the war-hoop, and the groans of helpless women and children, the tortured victims of savage vengeance. Now we are at once risen from youth to manhood, and are ready to meet the haughty Republic of France animated with enthusiasm and flushed with victory. Mr. F. observed, that he rejoiced however that gentlemen adopted a bolder language on this than had been used on the former occasion. He felt his full shame in the national degradation of that moment. He was in favor of firm language; but he would distinguish between the language of manly firmness and that of childish petulance or ridiculous bombast. Mr. GRISWOLD said, if he understood the state of the business, the question was, whether the committee would agree to the amendment proposed by the gentleman from Virginia? If it contained sentiments accordant to the feelings of the committee, it would of course be adopted; if not, it would doubtless be rejected. He supposed it would form an objection to this amendment, if it were found to be inconsistent with the other parts of the report. He believed this to be the case; but he would not make objections to it on this ground. He would examine the paragraph itself, and see whether it contained sentiments in unison with those of the committee. He believed this would not be found to be the case, and that when the committee had taken a view of it, it would be rejected. If he understood the proposition, it contained three distinct principles, viz: 1. To make a new apology for the conduct of the French Government towards this country. 2. That the House of Representatives shall interfere with and dictate to the Executive in respect to what concessions ought to be made to the French Republic. 3. It depends upon the spirit of conciliation on the part of France for an adjustment of the differences existing between the two Governments. The apology, he said, was a new one, and one which the French had not thought of making for themselves; for they tell us, as it appears from Mr. Pinckney's letter to the Secretary of State, "they will not acknowledge or receive another Minister Plenipotentiary from the United States, until after the redress of the grievances demanded of the American Government, and which the French Republic has a right to expect from it." We say (or rather the gentleman from Virginia says in his amendment) they rejected our Minister because he had not power enough; therefore, for the apology now made for the French Government they were indebted to the ingenuity of the mover. Now, said Mr. G., I do not wish that the House of Representatives should undertake to make apologies for the conduct of the French Government towards this. It was true they needed apology; but he did not think it was proper for us to make it for them. Further, as this apology was not made by themselves, but wholly different from their own assertions, it was not likely that they would fall into it. They say, "Permit us to sell our privateers in your ports; annul treaties and repeal laws, and then we will tell you on what terms we will receive Mr. Pinckney, and peace from you." After this declaration, he did not think it would be proper to attempt any new apology for them. He therefore supposed, that so far as this proposition offered a new apology for the French Republic, it could not meet with the approbation of the committee. The next proposition contained in the amendment was, that the House of Representatives should interfere with the Executive power of this country, and dictate to it what sort of steps should be taken towards reconciling the French Government. He asked whether this was consonant to the principles of the constitution? Whether the constitution had not delegated the power of making treaties to other branches of the Government? He believed it had, and that therefore we had no right to dictate to the Executive what should or what should not be done with respect to present disputes with the French Government. On this ground, therefore, he considered it as improper. In the next place, the amendment contained another proposition, viz: that we rely upon a spirit of conciliation on the part of France for an accommodation of differences. And, said Mr. G., do we really rely upon this? Have we such evidence as should incline us to rely upon it? Have the French Government expressed any inclination to settle the differences subsisting between them and us? The communications which were received from the Supreme Executive, do not bear this complexion. The communication from the French Minister to this Executive does not wear it. Our proclamations are called _insidious_; our Minister is insulted and rejected; and attempts are made to divide the people of this country from their Government. Is this conciliation? Does it not rather appear as if they intended to alienate the affections of the people from their Government, in order to effect their own views? He was convinced it did, and that they could not rely upon a spirit of conciliation in them. For his own part, he did not rely upon it; he relied upon this country being able to convince the world that we are not a divided people; that we will not willingly abandon our Government. When the French shall be convinced of this, they will not treat us with indignity. Therefore, he trusted, as the proposed amendment did not contain such sentiments as were likely to accord with the feelings of the committee, that it would be rejected. Mr. GILES said the subject under discussion was a very important one. It appeared to him, from various documents, that all the steps taken by the Executive had a view to an eventual appeal to arms, which it was his wish (as it was the wish of many in that House) to avoid. It was proper, therefore, that the clashing opinions should be discussed. If the proposition brought forward for this purpose was not sufficiently simple and explicit, he wished it might be made more so. For he believed the question to be, whether the committee be prepared to pass a vote, approving of the whole course of the conduct of the Executive, or whether France should be put upon the same ground with the other belligerent powers. That she is at present upon the same footing, no gentleman had attempted to show. Gentlemen who wish to get rid of this ground, say this is a thing which should be left to the Executive. He thought it was, however, a proper subject for their discussion; for whatever power the Executive had with respect to making of treaties, that House had the means of checking that power. Suppose, said Mr. G., I were on this occasion called upon to tax my land, was it not necessary I should inquire into the subject, and endeavor to avoid a measure which would probably prove a serious drain upon the blood and treasure of the country? He was unwilling to have his land taxed for the purpose of supporting a war on this principle. It was evident that the French took one ground in this dispute, and the United States another, and whilst this continued to be the case, no negotiation would have any effect. Indeed, said he, it is war; and if the measure proposed was taken, we make war if we do not declare it. Mr. BALDWIN said, he had taken the liberty to express his concern several years ago, that this custom of answering the PRESIDENT's Speech, which was but a mere piece of public ceremony, should call up and demand expressions of opinion on all the important business of the session, while the members were yet standing with their hats in their hands, in the attitude of receiving the communications, and had not yet read or opened the papers which were the ground of their being called together. It applied very strongly in this instance, as this was a new Congress, and a greater proportion than common of new members; he thought it an unfavorable attitude in which to be hurried into the very midst of things, and to anticipate business of such vast importance to the country, before they had time to attend to the information which had been submitted to them. He trusted some fit occasion would before long be found to disencumber themselves of a ceremony, new in this country, which tended only to evil and to increasing embarrassments. He observed that it was under the influence of these impressions, he had made it a rule to himself, for many sessions, to vote for those amendments and those propositions in the Address which were most delphic and ambiguous, and while they were respectful to the PRESIDENT, left the House unpledged and open to take up the business of the session as it presented itself in its ordinary course. It was on this ground he should vote for the amendment now under consideration. Mr. RUTLEDGE said, when the report of the committee should be before them, he should have some remarks to make upon it; but at present he should offer only a few observations upon the proposed amendment. He said he had strong objections to the amendment; but one so strong that he need not urge any other: it was, that in agreeing to it they should dictate to the Executive, which he believed would be infringing upon the Executive power. As it was his peculiar duty to give instructions to Ministers, it would be improper in them to say what should be the instructions given to a Minister; but if it were not so, he should not vote for those of the gentleman from Virginia. In the instructions of a Minister, it was usual to comprise a variety of propositions. Certain things were first to be proposed; if these could not be obtained, he was instructed to come forward with something else, and if this could not be got, he went on to his ultimatum. But, if the proposition of the gentleman from Virginia were to obtain, his instructions would be publicly known. In vain would it be for him to offer this or that, they will say the House of Representatives has directed you what to do, and we will not agree to any thing else. This would be contrary to all diplomatic proceedings; for that reason he should be opposed to the House saying what should be his instructions. Indeed, if it were usual, he should be against it in this instance, as he believed it would encourage an extravagant demand. What, said he, have they said to our Minister--or rather to the person who was formerly our Minister, but who then had no power? They told him to go away; they had nothing to say to him: they would receive no more Ministers from the United States until their grievances were redressed. This country is charged with countenancing an inequality of treaties. The French have said, redress our grievances in a certain way. But, said Mr. R., if we do this, we shall put ourselves under the dominion of a foreign power, and shall have to ask a foreign country what we shall do. This was a situation into which we must not fall without a struggle. Mr. SITGREAVES said, though he had wished to have taken a little more time before he had troubled the committee with his observations; yet, as there now appeared an interval, he should take the opportunity of occupying it for a few minutes. He should not answer the observations of the gentleman from Georgia, with respect to the style of the Answer reported; but he believed that those gentlemen who would look at it without a perverted vision, would not discover the faults in it which that gentleman had discovered. He thought it rather remarkable for the simplicity of its style than for a redundancy of epithet. He discovered more of the latter in the amendment than in the original report. It was true that the superlative was used in different places, but he thought it was used where it ought to be. He would not, however, detain the committee with matter so immaterial, but would proceed to what appeared to him of some consequence. A stranger who had come into the House during this debate, and heard what had fallen from the mover of the proposed amendment, and from members who had followed him, would have supposed, that instead of an act of ordinary course being under discussion, they had been debating the question of a declaration of war against France. He would declare, for himself at least, on the subject of war, that he agreed in certain of the sentiments of gentlemen on the other side of the House. A state of war was certainly a curse to any nation; to America it would be peculiarly a curse. It ought to be avoided by all possible means. It was not only impolitic, but madness, to run into war. But he thought there were two sides of the subject. He thought that peace was the greatest of all possible blessings; but he also thought that peace might be purchased too dearly, and war avoided at too great an expense. He thought peace might cost a greater value than money--our independence. This was no new sentiment in this country. It was thought that peace might be bought too dearly in the Revolutionary war; they then thought it better to be at war than to submit to the alternative evils. France also shows that she prefers a state of war--a war carried on at an unexampled expense of blood and treasure--to a state of peace with despotism. He thought, therefore, that we should hold a language of a firm and manly tone. To preserve peace by all honorable means, but not by dishonorable means. As he observed last session, on a similar occasion, we should cultivate peace with zeal and sincerity; but whenever our intention of doing so was publicly expressed, it ought to be accompanied with an opposite assertion of a determination, if our endeavors to maintain peace fail, that then every resource of the nation shall be called into existence in support of all that is dear to us. Such a declaration, at this time, was extremely proper. At present, he said, all the observations which had been made relative to war, were very premature. They might be brought into consideration, when any measure should be discussed which might lead to a war with France. Then would be the time to count the cost and the benefit. At present, he conceived, our only object was, to inquire what were the feelings which the conduct of France had created in our minds, and whether we were prepared to express those feelings. Shall we, said he, from a fear of irritating the French Republic, in a communication with our own Executive, suppress our feelings, or what is worse, suppress the truth? For his own part, he saw nothing in the present business but an expression of feelings naturally excited by the occasion; nothing but a declaration of facts. This being the case, the question was, whether, from fear of irritating the French Government, they should suppress these feelings. It would be well to consider what would be the consequence of this condescension. He did not think they were warranted in believing that they should put France in a better humor with us by this means. He was sure that gentlemen who were in the last Congress would recollect that the Answer to the Address was reported in very mild terms, from a spirit of accommodation in the committee who formed it, and that it was afterwards pruned in the House with care, yet there had been no amelioration of the disposition of the French towards this country. Instead of inducing them to behave better to us, had it not been with a knowledge of this that they have offered us fresh insult and indignity? Indeed, Mr. Pinckney suggests an idea that this moderation of ours may have been one of the operating causes of sending our Minister from their country. Besides, gentlemen have not pointed out the particular expressions which they consider as irritating in the report. For his own part, he thought the amendment might be considered as more irritating than the draft of the committee. What was the language of the amendment? [He read it.] He gave it as his opinion, that there was more of war and bullying in it than in the original report. It was true the threat it contained was accompanied by an _if_. Now, all the difference between the draft and the amendment was, that in the former, instead of using the _if_, they had at once expressed indignation at the insults offered to this country by the French Republic, and given assurances to the Executive that they would repel indignity with indignation. But, said he, let us, on this occasion, confine ourselves to the real question now before us. We have been informed, said he, by the PRESIDENT, in his Speech to both Houses, of the conduct of the French towards this Government, and have since received the documents upon which this report was founded. He had not yet heard any gentleman justify the conduct of the French. He had heard, indeed, some attempts to palliate or apologize for it, but none to vindicate it. His ideas of these things were, that the French had not only injured us, but added insult to injury; and while he retained this belief, he could not help feeling indignation and resentment. The question before the House was not, Will we resent it? Our actions, better than our words, show our desires for peace. It was a desire in which we were too much interested, to be doubted; yet it was proper that this desire should be accompanied with expressions of our feelings on the occasion. What objections could there be to this? If we were sunk so low, if our fears of the French Republic are so great, that we dare not express what we feel, our situation was become really deplorable. He hoped this was not, nor ever would be the case. He hoped we should cultivate peace with sincerity, but with firmness. For if the French Republic is so terrible to us, that we must crouch and sink before her; if we hold our rights at her nod, let gentlemen say so. And if we are to give up ourselves to her, let it be an act of the Government; do not let us conceal under the appearance of spirit, actual submission. Nations, it was true, might be brought into such a situation as to be obliged to surrender some of their rights to other nations; but when this is done, it should be done with some degree of character. Let it not be done as a confession of guilt. Let us, said he, however, surrender any thing, sooner than the fair fame of our country. He was not a military man, nor did he know how he should act upon such an occasion; but he knew what we ought to do. We ought, rather than submit to such indignity, to die in the last ditch. Why insinuate that the Government had been wrong? was it not enough to submit to injury; shall we not only receive the stripes, but kiss the rod that inflicts them? Mr. OTIS observed, that he was so little accustomed to the mode of conducting a debate in that honorable House, that he hardly knew in what manner to apply his remarks to the subject before the committee. A specific motion had been laid on the table by the gentleman from Virginia, which reduced the true question before them to a narrow compass; but the mover, in discussing his own proposition, had enlarged upon subjects dear to his mind, and familiar to his recollection. In this circuit he had been ably followed by the gentleman from South Carolina, and others; so that the whole subject of the Address to the PRESIDENT, and the reply of the committee, was brought into view, with many considerations that did not belong to it. It was his design to have remained silent until the subject had been exhausted by other gentlemen, and if any remark of an important nature had been omitted, which was not likely to have been the case, he would have suggested such ideas as might have presented themselves to his mind; but a motion having been made for the committee to rise, he would then offer a few observations, not so much for the sake of illustrating the question, which had been done most successfully, but in order to declare his sentiments upon this important occasion. He so far agreed with the gentleman from Georgia, that he believed, upon ordinary occasions, an Answer to the PRESIDENT's Address should be calculated to preserve an harmonious intercourse between the different departments of Government, rather than to pledge either branch of the Legislature, collaterally, upon subjects that would come regularly under their consideration. But the present was not an ordinary occasion, and the situation of the country required that the Answer should not be a spiritless expression of civility, but a new edition of the Declaration of Independence. He expressed his regret that upon this question gentlemen should have wandered into a review of measures and subjects, so frequently examined, so deliberately settled, and which had a tendency to rekindle party animosity. If they would never acquiesce in the deliberate acts of the Government, because their personal sentiments had been adverse to them in the season of their discussion, there could be no end to controversy. For his part he conceived that all party distinctions ought now to cease; and that the House was now called by a warning voice, to destroy the idea of a geographical division of sentiment and interest existing among the people. His constituents and himself were disposed to regard the inhabitants of the Southern States as brothers, whose features were cast in the same mould, and who had waded through the same troubled waters to the shore of liberty and independence. He hoped that gentlemen would, in their turn, think the other part of the Union entitled to some consideration. The Address of the PRESIDENT disclosed, for the contemplation of the committee, a narrative of facts, and of the existing causes of controversy between the French Republic and ourselves; the overtures for reconciliation, which were to be repeated by attempts to negotiate, and the measures of defence that might be proper, in case negotiation should fail. The injuries sustained by us were of a high and atrocious nature, consisting in the capture of our vessels, depredations upon the property and persons of our citizens, the indignity offered to our Minister; but what was more aggravating than the rest, was, the professed determination not to receive our Minister until the complaints of the French should be redressed, without explanation and without exception--until we should violate treaties, repeal laws, and do what the constitution would not authorize, vacate solemn judgments of our courts of law. These injuries should not be concealed. He did not wish, however, to indulge in unnecessary expressions of indignation, but to state in plain and unequivocal terms the remonstrances of injured friendship. If any man doubted of the pernicious effects of the measures of the French nation, and of the actual state of our commerce, let him inquire of the ruined and unfortunate merchant, harassed with persecutions on account of the revenue, which he so long and patiently toiled to support. If any doubted of its effects upon agriculture, let him inquire of the farmer whose produce is falling and will be exposed to perish in his barns. Where, said he, are your sailors? Listen to the passing gale of the ocean, and you will hear their groans issuing from French prison-ships. Such were the injuries, and such the requisitions of the French nation; and he defied the ingenuity of any gentleman to draw a comparison between the Directory and the British Parliament, in favor of the former; and insisted that the demands of Charles Delacroix were upon a parallel with those of Lord North. He enlarged upon the analogy of the circumstances attending the pretensions of the British Government to bind us, when we were colonies, and of the French to subjugate us, now we are free and independent States. He thought it expedient to cultivate the same spirit of union, and to use the same firm and decided language. He regretted that questions should be agitated upon this occasion, which had been formerly the cause of party spirit and dissensions; and did not believe that the immortal men who framed the noted instrument which dissolved the charm of allegiance and shivered the fetters of tyranny, condescended to differ about verbal criticisms and nice expressions, through fear of giving offence; nor that it was incumbent upon the members of the committee to repress the assertion of their rights, or smother a just and dignified expression of their susceptibility of insult, because the French had been once our friends, or because the commencement of their revolution was a struggle for liberty. There was a time when he was animated with enthusiasm in favor of the French Revolution, and he cherished it, while civil liberty appeared to be the object; but he now considered that Revolution as completely achieved, and that the war was continued, not for liberty, but for conquest and aggrandizement, to which he did not believe it the interest of this country to contribute. WEDNESDAY, May 24. WILLIAM SMITH, from Pinckney district, South Carolina; SAMUEL SMITH, from Maryland; JOHN ALLEN, from Connecticut; and WILLIAM FINDLAY, from Pennsylvania, appeared, produced their credentials, were qualified, and took their seats. _Answer to President's Speech._ The House again went into Committee of the Whole on the Answer to the PRESIDENT's Speech, and Mr. NICHOLAS' amendment being under consideration, Mr. SWANWICK opened the debate. He lamented the loss of time which was generally experienced at the opening of every session in debating the Answer to the Speech of the PRESIDENT, when, perhaps, business of the first moment called for immediate attention. It was much to be wished that committees appointed for this purpose would confine themselves to the instructions which were given to them on the occasion, which were in general terms, viz: "to prepare a respectful Address, assuring the PRESIDENT that the House will take into their serious consideration the various important matters recommended to their attention." If Answers were drawn in general terms, conformably to these instructions, he thought very many of the embarrassments which they now experienced would be avoided, and every member would be left at liberty to pursue such measures as appeared to them right, when they came before him in the ordinary course of business unclogged by any creed which he might have been called to assent to before he had an opportunity of considering the subjects it contained. It also often occasioned much warmth in debate, and served to divide the House into two parties on the very threshold of their business. This could not possibly have any good effect, but the contrary; he should therefore be happy to see the practice simplified or abolished altogether. The effect at present has been, that no sooner had the committee appointed to draft an Address made a report, than the gentleman from Virginia proposed a substitute, which, according to his idea, was more proper. A warm debate had taken place, and he believed that either might be adopted without effect, as they were merely a form of words leading to no conclusion. Suppose a majority of _one_ was obtained on the report, what end would be produced? None; for it might be that the very persons who voted on this general question, might vote against particular subjects when they came under consideration; as every one would recollect the difficulties which had been experienced in getting three frigates built, and this difficulty, he doubted not, would again occur. Since, however, these two forms of an Answer were before them, and they were called upon to say which they would adopt, it might be proper to go into some consideration of the subject. The difference between the two productions seemed to be, that the one reported seemed to express great indignity on account of the injuries received from the French Republic, and a determination to repel them; that produced by the gentleman from Virginia was of a more conciliatory tone, recommending to the PRESIDENT to begin his negotiations with placing the French Republic on the same ground with the other belligerent powers; so that the difference was simply as it respected a few words. What were the arguments in favor of the warm tone? They were told it would have a great effect on the French Republic, because if a spirited Answer were given to the PRESIDENT's communication, signifying (as his colleague Mr. SITGREAVES had strongly expressed it) that we were determined to _die in the last ditch_, it would strike them with terror. If he thought this effect could be really produced, it might be some inducement for him to agree to it. Mr. S. remarked, that they were told by Mr. Pinckney, in his letter to the Secretary of State, that it was probable that two events had contributed to his dismissal from the French Republic, viz: one, the victories of Bonaparte in Italy, the other, the Addresses of the Senate and House of Representatives in answer to the Speech of the PRESIDENT at the last session. With respect to the Answers alluded to, no opinion could be formed from this assertion, because, though that of the House of Representatives was tolerably moderate, yet that of the Senate was as warm as any thing could be produced. He read extracts from both, and compared them with each other, giving the credit which, in his opinion, was due to the most moderate. The first and most necessary step to be taken was, to put all the belligerent powers upon the same footing, which could not be an offence to any. But it was said that to recommend this measure to the Executive, was to dictate to him; that it was carrying humility on the front of the Minister who should be employed. What! said Mr. S., would it be to carry humility in his front to say, "I come to place you on the same footing with the most favored nation?" It certainly could not; since it was the language of right reason, of justice. As to dictating to the Executive, could it be called dictating when we merely express our opinion and advice to him, on points which he has himself laid before us; and, in order to deliberate on which we were thus unusually called together? Very low and debasing, indeed, must be the situation of this House, if they were to be muzzled and prevented from laying their sentiments before the Chief Magistrate of the Union! When treaties are made, we are told they are laws over which we have no power. If we dare not speak on the subject before they are made, is this House reduced merely to the odious task of laying taxes, without being allowed to exercise its sense on any other public measures connected with them? Why does the PRESIDENT communicate these things to us, if we are not allowed to express any sentiments about them? Why do the people elect their representatives all over this widely extended empire, if, when they are convened, they are not allowed the privilege of expressing their opinions on the dearest interests of their constituents? But it is stated that this will create division among the branches of the Government, who ought always to act and think alike. Were this the case, there was no use to divide the Government, as our constitution does, into three branches; they might all have been left in one, and then no accident of this kind would have happened; but the fact is, this very division of the branches was devised in order that they might operate as checks on each other. The people thought it better that a division of this kind should prevent acting at all, than that we should act hastily and unadvisedly. Thus when a law, after mature deliberation, passes this House as wise and good, the Senate were not obliged on this account to see it in the same light; they judge for themselves, and, if they see cause, reject it, and no complaint takes place on our part because they do so. In another Government, indeed that of England, all the branches have been contrived into the most perfect union, Kings, Lords, and Commons, all agree, but has the Government been the better for this? Happy had it been for that nation, had this not been the case. Many an unwise measure they have gone into, might then, fortunately for the nation, have been totally prevented. But it has been said we ought to express the highest indignation at the conduct of France. Let us examine for a moment on what this is founded. Three grounds have been mentioned; the dismission of our Minister, the spoliations on our ships, and the interference with our Government, in attempting to divide the people from it. As to the first, the dismission of our Minister, said Mr. S., nobody can feel more sensibly than I do, this indignity; but it only leads me to regret, as I have often already expressed my regrets, at our sending so many diplomatic gentlemen to Europe. Wretched will be our case, if we are embroiled whenever these gentlemen shall be refused, or uncivilly treated. All history is full of instances of wars, founded on such points of etiquette as these, and they admonish us against employing embassies, as much as possible, to avoid these dangers from our foreign connections. But it seems, the Directory, by Mr. Pinckney's letter, at the same time sent away thirteen other foreign Ministers; yet we do not hear that these nations went to war on this account. One of them was Sweden, a very powerful maritime nation, possessed of a considerable fleet; her Minister was dismissed; she contented herself with sending away the French Minister also, and here the dispute ended. But, surely allowance ought also to be made for the present revolutionary state of France. If all things do not proceed there with the order they ought, it is perhaps because of their present warlike and revolutionary position, which cannot but mend every day, and should induce us to make some allowance for them. Mr. LIVINGSTON said that, having listened to the gentlemen who had preceded him with the most respectful attention, and heard their ardent expressions of patriotism and the lively sense which they entertained of the true dignity of our Government, he should not attempt to follow them into a field which had been exhausted, but would leave it to the consideration of the committee and his country to determine upon his sentiments and the measures which he should suggest whether he was not equally disposed with others to promote the peace and honor, the happiness and security of his country and Government; he would leave it for his measures to speak for him; he would not be led away by any idle or extraneous vanity from objects so solemn and important; he should speak freely as became an American at a crisis so very pressing. First, then, he should notice the Address that was before the committee, and the amendment which had been proposed to be made to it; he was sorry to observe the manner in which they had been discussed. It had been considered, on one side, that to adopt any language in reply to the Address but that which has been laid before the committee in the report, would amount to a surrender of all our rights, privileges, and independence, as a nation, to France; on the other, it has been held that the differences between us and France are distorted, and that we should at least not shut up every avenue to negotiation by an obstinate and blind assertion of our own infallibility. If he believed with those of the former opinion, that we should in any shape incur the stigma of degrading ourselves, or if he suspected even that we should sacrifice one right of our country or Government by an adoption of the amendment proposed, or he thought we should not endanger our national character and safety by the adoption of the report, he should most certainly reject the amendment and adopt the report; or if he believed, with the gentleman from Massachusetts, (Mr. OTIS,) that the demands of France now were any wise analogous to those of Great Britain on a former occasion, sooner than consent to a dereliction of independence and national character he would not stop short of the language of that report; but as he could not force his judgment to so outrageous a misconstruction, as he saw on the contrary numerous reasons to entertain a very different opinion, he would not consent to incur the perils and the errors in which that report would involve us; he could not consent to so hasty, so precipitate, and inconsiderate a step. The question properly before the House at this time is, whether we shall continue to express so perfect a reliance on all the acts of our own Government; whether we shall say obstinately to France that there is no possible case in which our judgment could have been misled or mistaken in our conduct towards her; and, by determining to adhere to our former conduct, preclude every possibility to an amicable adjustment; or leave a reasonable opportunity open for an effectual discussion and adjustment of differences, wherever they may subsist. The scope of the Speech of the PRESIDENT to both Houses, it must be confessed, goes to bind us to the former conduct; and it is too evident that the report, in strict coincidence with the sentiments of several, but not all its supporters, bears that same dangerous tendency. From which line of conduct are we to expect the most beneficent issue, to treat with a complaining power by a determination to show that its complaints are groundless, or by examining the complaints and the evidence in amicable negotiation and deciding afterwards? Let us examine the complaints of France, and then determine whether they are all so frivolous as to excite irritation at the mere mention of them; unless we are so convinced, unless we are thoroughly satisfied that they are so, we cannot vote the Answer as it is reported. Should we discover in such an examination that some of our measures have been founded at least in mistake, would it then be proper to adopt the language of the Address? But should we persist under such a possibility of mistake, what do we risk? an evil much more fatal than the worst that could follow the most sober resolution which we can now adopt; we risk the alternative of abandoning it after a war in which we may be sufferers, and after we may have retarded the increasing prosperity of our country half an age. We have an example before us in a nation that was eager to snatch at a remote pretext for an assumed interference in her Government; we have seen that nation, among the most powerful and haughty in Europe, the most vain of her dignity, (real or unreal,) the most apt to interfere in the government of others; we have seen her enter into a war, and we have seen her driven to the lowest state of humiliation; we have seen her obliged to pursue the most abject means of solicitation to obtain a peace from that very nation whom she had irritated to a war; and we saw her more humiliated still, by the rejection of those propositions which she had made to obtain peace. Have we a better prospect than that nation? Are our means equal to hers? Are we, indeed, ready to embark in a war--with France, too--and present such a lesson to the world as America at war with France, after France has defeated the efforts of all the world? He again asked, have we the means? Let gentlemen who are willing to plunge us into that dilemma make the reply; but let not gentlemen indulge in so hateful a picture. But, although we have no means, he was still against surrendering the honor of our country; fortunately, no such sacrifice is demanded, no such measure is necessary; and were we ten times more destitute even than we are, he should never submit to our national degradation, were there a power so insolent as to expect it. It was, he knew, a very ungracious, and often an unpopular task, to display the errors of our own Government; there was a national vanity, a vain and unmeaning pride, which sought to be bolstered up by frippery of words and acts of dissimulation. He knew that this empty and pernicious vanity often assumed the post and place of the true dignity of a country, and blinked contumely on him that was disposed to prefer the plain, frank, open path of integrity and truth. He would choose between these opposite passions of a nation, and preferring his duty to unmerited reproach, he would neither repress the sentiments of his mind, nor foster those which he conceived to be pregnant with ruin; he would glory more in promoting the justice of his country than in conducting her to the most brilliant triumphs in an unjust cause; he would, therefore, calmly examine whether France had just cause of complaint; and whether she had or not a just cause, he would assert that France might, without exciting indignation, think herself injured; that she might, was a sufficient reason with him for preferring the amendment, as it left an opening for rather amicable discussion and accommodation, rather than the report which had the opposite character. THURSDAY, May 25. Mr. GILES rose.--He said that he had always been against this form of giving Answers, since the time the practice first began; it was derived from the British House of Commons, which was a bad source for precedents. In that House, however, the Speech and the Answer were both known to be the work of the Minister, and treated with great freedom. Mr. G. thought that it would be better to direct the Committee of Rules and Orders of the House, to make one standing Answer, which would serve regularly for all Speeches. This would be an improper time for such a regulation, but though we could not now get rid of a bad habit, it was not necessary to vindicate it. He said, that Mr. LIVINGSTON had yesterday taken part of the ground which he intended to take. The question before the House amounted to this: shall we recommend it to the PRESIDENT to place all nations on a level as to commerce, and to remove the inequalities between them? To assist him in deciding this point, he would refer to facts and dates; and, as he did not wish to represent things in false colors, he would be glad to be corrected, if he should happen to go wrong. He would begin at the 1st of February, 1793, when England dismissed the French Minister, and the Republic, in consequence, declared war against her. On the 22d of April following, the PRESIDENT declared this country to be in a state of neutrality, and warned the citizens to observe it. At this time, about the 10th May, M. Genet landed and raised a considerable alarm by commencing an improper correspondence with our citizens. Government from that time took a wrong impression, and acted under the idea of a dangerous French influence in this country. All this was a mistake. Genet was universally reprobated, unless by a few disorderly people, and Government from that trial should have learned to trust us. In consequence of the disturbance that Genet made, many societies entered into resolutions to support government. Even the pulpit reviled Genet. If execration, disappointment, and contempt, could fill up the measure of punishment, he had it. From the arrival of Genet to that of Fauchet, some sentiments were kept alive, and some phrases that he would review. The _Friends of Order_ and the _Disorganizers_ were two of them. Then we had the reign of _moderation_, but of so frantic a kind, for the short time which it lasted, as to exercise the greatest of despotism over opinion. This _order_, _moderation_, and _disorganization_, were all gone and no more said about them. Among Mr. G.'s constituents, when notice came of the Western insurrection, they were all ready to march in support of Government; instead of calling themselves the friends of order, they proved that they were so. The country remained from this time in a tranquil state till the arrival of Mr. Jay's Treaty. On the 5th of December, 1793, a Message was received from the PRESIDENT, speaking of France in the most friendly terms. In spite of Genet's quarrel there was no misunderstanding with the Republic, and Mr. G. quoted this circumstance to prove that there was no serious difference till the arrival of Mr. Jay's Treaty. Mr. G. said that he would review what was in the mean time passing in Europe. During the summer of 1793, Britain made no less than six treaties with different nations, and one stipulation in each of them was that the contracting parties should stop all provisions going to France, and force all other nations to do so. The first of these treaties was made with Russia, on the 20th of March, 1793: the second was with Spain; the third with Prussia; the fourth with the Emperor; the fifth with Portugal; and the last with the King of the two Sicilies. It was said that France preceded Britain in the order for stopping provisions; Britain did not publicly issue such orders until the 16th of June, 1793; but Britain had, in reality, adopted the practice long before. The French orders fluctuated; but, at one time, the United States were exempted from stoppage, when others were stopped. He then noticed the stoppage of provisions to the West Indies; the Orders of the 6th of November, 1793, and the 8th of January, 1794. In the very short interval between these two dates, France had gone on so fast that Britain found it better to ameliorate the condition of neutral States. During this time, England also made a truce for Portugal with Algiers, and this truce has cost us fifteen hundred thousand dollars, besides what it may cost hereafter. Timber had been promised to be cut for the Algerines, of a kind which this country could not furnish in due quality. Some of it was to be brought so far as from the north-west branch of the Susquehanna. He would pass over Lord Dorchester's speech to the Indians, and the British soldiers and savages joining the tomahawk against our Western frontiers. He mentioned these things, merely to keep them in view. There was something, he said, which he could never think of without surprise. This was a conversation between Lord Grenville and Mr. Pinckney. It was related in a letter, dated the 9th of January, 1794, from Mr. Pinckney. It took notice of Lord Grenville telling Mr. Pinckney the desire which the British Government had of maintaining harmony with the United States, and their readiness to support the Government of this country against a dangerous Jacobin faction who wanted to overturn it. Mr. G. said, that this betrayed more interference on the part of Britain than there ever had been on the part of France. From this time our Government had taken a leaning towards Britain. French influence was only a sentiment which we felt for the sake of liberty, but which was sometimes conjured up as a chimera to serve certain purposes. The United States had a real interest in cherishing the sentiment, which never could be dangerous. As for British influence, it was a matter much more substantial. That people speak the same language with us, are scattered from one end of the continent to the other, intermarry with us, and have a very great commercial intercourse. Lord Grenville's proposition had led to Mr. Jay's Treaty. As to France trying to engage us in the war, any other nation in the world would be glad to do so. France had addressed the people of America, and was resisted: Britain had addressed our Government; and Mr. G. feared that the latter had not made so firm a stand. While Congress were taking proper measures to check the depredations, Mr. Jay, to the astonishment of mankind, was named Ambassador to England. The Treaty was signed on the 19th of November, 1794. The instructions, Mr. G. had never seen, but if we may judge from the Treaty itself, they were extremely full. For the making of such a Treaty he had never heard a reason, nor had he ever been able to learn one good consequence likely to accrue from it. It had been called an instrument of peace, and its first effect was, that we were summoned to fight with France, Spain, and Holland. One of the articles was that free ships do not make free goods. This was highly injurious both to France and the United States; it implied a breach of the law of nations, because, before you can search for an enemy's goods you must stop neutral ships. This regulation could only be understood as operating against France. If we could not help the practice going on, we should at least have suffered it to stand as it was, without any countenance. All the principal articles of export from the United States were declared contraband, except tobacco, and, indeed, that might be included under the general title of provisions, as people would sometimes be in want of a chew. He spoke of this provision clause as infamous. He referred to Count Bernstoff, Minister of Denmark, who had kept his country in a more honorable situation than perhaps any other in Europe had done during the present war. Mr. G. read the refusal of Count Bernstoff to comply with the British requisition to that effect. During the armed neutrality, the United States had owned that free bottoms should make free goods. Was there any reason since to alter our opinion? He would be glad to hear gentlemen answer if there was any. He had always said that the provision article was unjust to France, and yet on account of the British Treaty we are to plunge into a war before we know whether we are in the right or in the wrong. Gentlemen who had promoted the British Treaty now came forward to support it, but it would now be more manly to declare at once that we cannot do so. In Citizen Adet's complaints, many articles were unjust and trifling, but this was always the case in productions of that sort. Mr. G. then referred to the speech of Barras: he said that Britain still went on robbing and impressing American seamen. Mr. HARPER had yesterday said that the impressments were few; but how were we to be certain of that? The men are not allowed to write to us, and Mr. Pinckney informs us that vast numbers of them are in French jails. He had always wondered at our having so few communications on this head from the Executive. A law had passed in this House and in the Senate upon this subject, without any information from that quarter. Gentlemen had allowed that it would be just enough to grant an equality of privileges to every foreign nation; but, Mr. HARPER had objected, that if this were granted to France, she would still continue to demand. When she makes an unjust claim, said Mr. G., we should stop; he would not be for going any further. The French had not acted on vague claims; they take neutral and contraband articles; they take the ships, and when they find our seamen on board of British vessels, they threaten to treat them as pirates, and will not allow them to prove that they were impressed. TUESDAY, May 30. JOHN FOWLER, from Kentucky, appeared, produced his credentials, was qualified, and took his seat. _Answer to President's Speech._ The House again resolved itself into a Committee of the Whole, on the Address reported in Answer to the Speech of the PRESIDENT OF THE UNITED STATES; when Mr. COIT said he thought that part of the 5th paragraph which related to the Executive Directory would be less exceptionable, and equally convey their disapprobation of such sentiments, if it were expressed more generally, and without any allusion to M. Barras. He proposed, therefore, to strike out from "at," in the 4th line of the 5th paragraph, to "United States," in the 6th line, and to insert "any sentiments tending to derogate from that confidence; such sentiments, wherever entertained, serve to evince an imperfect knowledge of the real opinion of our constituents." Mr. W. SMITH objected to the amendment of the gentleman from Connecticut, (Mr. COIT,) because it was hypothetical. He wished, as the fact was clearly established, to have a direct reference to the Speech of Barras, in their indignation at the sentiments. As the matter had appeared of sufficient importance to find a place in the PRESIDENT's Speech, he thought it was also worthy of their notice. He insisted upon its being an attempt to divide the people of this country from their Government, by speaking insultingly of the latter, and flattering the former. He did not exactly know what was meant by the "suggestion of our former tyrants," but he supposed it meant bribery, and that by "perfidious people," General Washington was included. Mr. W. SMITH said, that by the Government, the Executive only was meant. He was convinced of this from the manner in which he had seen the word used in the French Government paper, entitled the _Redacteur_. Mr. COIT believed, that whatever M. Barras had said, it was not worth their attention. We might defy France or Frenchmen to say worse of us than they themselves said. He did not himself know how far the Speech of Barras was an act of Government; for, said he, when we directed our Speaker to reprimand Randal and Whitney, the words he used upon the occasion were not an act of the House. On another occasion, when the House were about to receive the French flag, they could not call what was said by the Speaker on that occasion, an act of the House. Mr. WILLIAMS said, if Mr. Pinckney's letter was an authentic paper, the Speech of Barras was likewise so; and if so, it was doubtless an indignity to Government. He did not think with the gentleman from Massachusetts, (Mr. FREEMAN,) that it was "childish gasconade." He believed it was intended as an insult to the Government of this country. As to the gratitude which had been said to belong to the French nation, for their assistance in the war, he thought their services were amply repaid by the separation of this country from Great Britain. Besides, he added, the French never came to the assistance of this country until they saw we were likely to be successful in our struggle. Mr. GORDON said there could be no doubt of the authenticity of Barras' Speech, since it stood upon the same ground as the rest of the documents. It was a flagrant insult upon Government, in his opinion, and warranted all that had been said upon it, as it was doubtless an attempt to separate the people from the Government. Mr. THATCHER said the question was, whether or not any notice should be taken of the insulting Speech of Barras. When, said he, the French flag was presented to this House, we were told we were not to stop to reason, but to express forthwith our feelings of affection. But now, when the most unexampled insult is offered us, such as one man would not receive from another, we are not to notice it at all, lest it should offend the French Republic. He knew of only one reason for passing it over in silence, and that, it was true, had some weight with him. That Barras spoke as the organ of the French nation, there could be no doubt; but he had his doubts whether he knew himself what he said. The Speech had strong marks of _delirium_, and he could not help believing that, when he delivered it, he was either _drunk_ or _mad_. If the world went on for six thousand years to come, they would never again behold such a production. Mr. MCDOWELL was in favor of the amendment. He did not think himself bound, as had been insinuated by the gentleman from South Carolina, to echo all the sentiments in the PRESIDENT's Speech. He wished to have an opinion of his own. He agreed that Barras' Speech was an indignity to the United States. He felt it, and would express it: but he did not think this the proper time. He denied the justness of the construction put upon the Speech by the gentleman from South Carolina. He supposed by "perfidious persons," was meant the persons in this country, generally called the "British faction." He differed in opinion also with that gentleman on the subject of dividing the people and Government, and could not allow that the phrase "good people" was intended as an insult. He allowed it was going too far to say that we owed our liberty to France; but being in some respect true, it took off from the offence. He was sorry to see on one side of the House constant attempts made to excite the resentment of the people of this country against France. It was not necessary at present to raise such feelings. They were not about to unsheath the sword, and to say, "We conquer or die." What gentlemen could not effect by reason, they seemed inclined to effect in a different way. He did not think this fair conduct. Mr. VENABLE supported the amendment. He did not think any of the objections made against it had much weight in them. He thought the mode of expressing our sense of the indignity shown to this country by the Speech in question, was judiciously chosen by the gentleman from Connecticut. It was most consistent with dignity. It was not wise in them to take notice of every harsh expression which might be used against this country in any foreign nation; for, if such were our conduct, foreign nations would have good ground of complaint against us, and on that floor the account would be settled. Nor did he think it very becoming or dignified in gentlemen in that House so to express themselves as to excite frequent risibility; nor was it very honorable to that Assembly. [Alluding to the gentleman from Massachusetts.] Mr. SITGREAVES had no doubt of the Speech of Barras being an official paper, and that its object was to divide the people from the Government. If he proved this, he trusted the language of the report would be preserved. It would be allowed that Barras was the mouth of the Directory, and that the sentiments which he speaks, are not his own, but what were beforehand agreed upon. It was doubtless, therefore, a solemn official act. With respect to the observation of the gentleman from Virginia, that what he said respecting our Government was not applicable to the Executive, but to the people at large, he believed he was wholly mistaken, as the word Government, in the French language, constantly meant Executive, as was abundantly clear from the way in which it was used in Mr. Adet's notes. [He quoted a number of passages to prove his assertion.] It was generally used for the Executive in contradistinction to Congress, or any other of the constituted authorities. If it were clearly intended to convey an insult upon our Executive, (and there could be no doubt of it,) even the mover of the amendment could not think it unbecoming in that House to express themselves in the words of the Address. Mr. GALLATIN said, whatever might be the insult intended by the Speech of the Executive Directory, he thought it best to notice it in general terms as it was the sentiment which was objectionable and not the Government of France. But as so much had been said about Government and people, he would say, that an insult offered to the people could not be less offensive than one offered to the Government. He supposed they alluded to the British Treaty, which was as much the instrument of Congress as of the Executive, and of the people as either, since they very generally petitioned in favor of it. He then took notice of the perversions which the gentleman from South Carolina had put upon the words of Barras, and denied that there was the least ground for them, and said that the _Gazette of the United States_ might as well be called a Government paper of this country, as the _Redacteur_, that of France. If, said Mr. G., it be our intention to declare war at once, then there might be some propriety in taking hold of every word which would bear to be construed into an insult, but if we wished for peace, it was unwise to do so. Besides, he said, this Speech was not communicated in an official manner, nor could it be so communicated. It was sent by Mr. Pinckney in a newspaper, from which the copy sent to them was translated, but the translation was not even authenticated, as usual. He did not dispute the fact, but it was a thing which they were not bound to notice; indeed, an error with respect to a name appeared on the face of the paper; and being delivered to Mr. Monroe, who was no longer Minister, it could not be officially communicated. He therefore thought it was not worth their notice. Mr. OTIS thought it right to pay respect to what was recommended by the PRESIDENT. The question was whether they should notice the insult generally, or in reference to the Directory. He was in favor of the first; but as this was the only opportunity given in the Address of expressing their opinion of the conduct of the French Government, he wished the Address to stand as reported. Mr. O. remarked upon Barras' Speech. He did not know what was meant by granting peace. When parties were at war, one granted the other peace; or sometimes a stronger power suffered a weaker to be at peace. He supposed the French meant it in the latter sense towards this country. On condition that we respect her sovereignty! What was meant here? If it was sovereignty over their own nation, we had nothing to do with it; if it was any other, it must be the sovereignty they had over us. He concluded by remarking, that if there were any members in that House upon whom any imputation could rest of their being unduly attached to the French cause, he thought it a good opportunity to come forward and convince the world that the charges were unjust. Mr. LIVINGSTON took notice of what had fallen from the gentleman last up, and showed the folly of adopting an irritating tone; as, if we charged a foreign government with making use of one disrespectful expression, they would have no difficulty in retorting the complaint, as in the course of that debate, the gentleman from South Carolina (Mr. HARPER) had called the King of Spain the humble vassal of France, and had not been sparing of his epithets to other powers; and the gentleman from Massachusetts (Mr. THATCHER) had termed Barras drunk or mad. He also noticed the constructions put upon the words "granting peace," and "sovereignty," as very extravagant. The Speech, he allowed, was bad enough, but he saw no reason for torturing it in this manner. Mr. GILES said the gentleman from Massachusetts had called upon persons who might lie under imputation of being friends to France, to come forward, and show the imputation false. He informed that gentleman that he did not feel his reputation hurt by any imputation which he or any other person might throw upon him. He would rather the gentleman would convince them they were wrong, than call them names. Mr. OTIS explained. He declared he meant only to say that they had been unjustly charged with those imputations, and that such a conduct would show it. Mr. W. SMITH again urged the propriety of retaining the words in the Address as reported, as the amendment proposed had no reference to the PRESIDENT's Speech, as that referred to an official act; whereas the amendment had no relation to France, but would apply to the people of China, or the people of this country, as well as to those of France. He believed the discussion had been of some use, because it was now on all sides acknowledged that the Speech of Barras was an insult, which was not allowed at the beginning of the debate. He could only say that gentlemen died hard; to use the expression of his friend from Pennsylvania, (Mr. SITGREAVES,) they seem determined to _die in the last ditch_. The objections to the words of the present Address, were like the objections of _Thomas Paine_ to the writings of Moses. He denied that there was any similarity between expressions used in debate in that House, and expressions used by an Executive authority. No notice, he said, ought to be taken of what fell from members in that House, whilst they were allowed to be in order; and if foreign Ministers attended to hear their debates, and heard things which they did not like, they ought not to take exceptions at it, since they came there uninvited, and it was their duty to say what appeared to them right at the time. The question was put on the amendment, when there appeared 49 votes for it, and 49 against it. The Chairman declared it carried in the affirmative. WEDNESDAY, May 31. _Answer to the President's Speech._ The House again resolved itself into a Committee of the Whole on the Answer to the PRESIDENT's Speech, Mr. DAYTON's amendment being under consideration. Mr. HARTLEY was persuaded there was but one wish in the House with respect to peace, notwithstanding insinuations to the contrary; but he could not agree with the proposed amendment, as he wished the negotiation to be left wholly to the PRESIDENT. The treaty entered into with France provided for their being placed on the same footing with other nations, and wished that right to be recognized by negotiation, and he doubted not the PRESIDENT would do it; for as he must see that peace was the desire of all, he would take such steps as would be best calculated to lead to it. He was against encroachments on the Executive, as, if they once begun, there was no knowing where they could stop. He thought there was no danger of war; it would be a disagreeable thing for men who fought in the Revolutionary war, to be obliged to unsheathe their swords against France; but he trusted before they rose, means would be taken for putting the country into a state of defence. The question was then taken on the Address as amended, and resolved in the affirmative--yeas 62, nays 36, as follows: YEAS--John Allen, George Baer, jr., Abraham Baldwin, David Bard, James A. Bayard, Theophilus Bradbury, David Brooks, John Chapman, Christopher G. Champlin, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, James Davenport, John Dennis, George Dent, George Ege, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Nathaniel Freeman, jr., Albert Gallatin, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William B. Grove, John A. Hanna, Robert Goodloe Harper, Carter B. Harrison, Thomas Hartley, William Hindman, David Holmes, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, John Milledge, Daniel Morgan, John Nicholas, Harrison G. Otis, Elisha R. Potter, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thompson J. Skinner, Thomas Sinnickson, Jeremiah Smith, Nathaniel Smith, Samuel Smith, William Smith, (of Charleston,) George Thatcher, Richard Thomas, Mark Thomson, Abram Trigg, John E. Van Allen, Peleg Wadsworth, and John Williams. NAYS--Thomas Blount, Richard Brent, Nathan Bryan, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, Thomas T. Davis, John Dawson, Lucas Elmendorph, William Findlay, John Fowler, William B. Giles, James Gillespie, Andrew Gregg, Jonathan N. Havens, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair M'Clenachan, Joseph McDowell, Anthony New, Josiah Parker, Samuel Sitgreaves, William Smith (of Pinckney District), Richard Sprigg, jr., Richard Stanford, Thomas Sumter, John Swanwick, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. _Resolved_, That Mr. SPEAKER, attended by the House, do present the said Address; and that Mr. VENABLE, Mr. KITTERA, and Mr. NATHANIEL FREEMAN, Jr., be a committee to wait on the President, to know when and where it will be convenient for him to receive the same. And then the House adjourned. SATURDAY, June 3. A report was received from the Commissioners of the Federal City, which was ordered to be printed. _Answer to the President's Speech._ Mr. VENABLE, from the committee appointed to wait on the PRESIDENT OF THE UNITED STATES, to know when and where it will be convenient for him to receive the Address of this House, in answer to his Speech to both Houses of Congress, reported that the committee had, according to order, waited on the PRESIDENT, who signified to them that it would be convenient to him to receive the said Address, at twelve o'clock this day, at his own house. Mr. LYON said he yesterday voted against the appointment of a committee to wait upon the PRESIDENT to know when and where he would receive their Address, because he believed the PRESIDENT should always be ready to receive important communications. He wished to make a motion, which was, "that such members as do not choose to attend upon the PRESIDENT to present the Answer to his Speech, shall be excused." He wished to be understood. He thought the motion a reasonable one, because it proposed to leave them at liberty to do as they pleased. And by the rules he saw, he was obliged to attend, except sick, or leave of absence was obtained; now, as he hoped not to be sick, he wished to put himself out of the power of the Sergeant-at-Arms, if he did not attend. He had been told he might stay behind without being noticed; but this was not enough for him, as he was a timid man, and the House had the law on their side, as he recollected something of a reprimand which had been given to Mr. WHITNEY. [The SPEAKER reminded him it was out of order to censure the proceedings of the House on any former occasion.] He said he stood corrected, and proceeded. He had spoken, he said, to both sides of the House (_as they were called_) on the subject. One side dissuaded him from his motion, and laughed at it; the other side did not wish to join him in it, because it would look like disrespect to the person lately elected, who was not a man of their choice; but he trusted our magnanimous PRESIDENT would, with the enlightened yeomanry of America, despise such a boyish piece of business. This, he said, was no new subject with him, he had long heard the folly of the wise made a matter of wonder in this respect. It was said this was not the time to abolish the custom; but this was the cant used against every kind of reform. No better time could ever arrive, he said, than this, which was the threshold of a new Presidency, at a time when the man elected to the office was beloved and revered by his fellow-citizens; he was as yet unused to vain adulation; he had spent a great part of his life amongst a people whose love of a plainness of manner forbids all pageantry; he would be glad to see the custom done away. Were he acting in his own personal character, he perhaps might conform to the idle usage, but acting as he was for eighty thousand people, every father of a family in his district would condemn him for such an act. Mr. BLOUNT said he had seconded the motion of the gentleman from Vermont, in order to give him an opportunity of stating his reasons for making it, and not from any desire to rescind the rule. Mr. DANA observed that the House would not wish to do violence to the gentleman's feelings. It was true some of the most respectable men in the United States had waited upon the PRESIDENT in a similar way, yet, if the gentleman thought it would not comport with his own dignity to do it, he hoped he would be excused. The motion was put, and carried unanimously. The SPEAKER informed the House the hour was arrived at which the PRESIDENT had appointed to receive them. Mr. MACON moved that the House do now adjourn. He should wait upon the PRESIDENT; but it seemed to be understood that members were obliged to go. He thought, however the power of the House might extend to bringing a member into the House, there was no power to carry him out. The motion was negatived without a division. The House then withdrew, and waited upon the PRESIDENT OF THE UNITED STATES with the following Address: _To the President of the United States_: Sir, the interesting detail of those events which have rendered the convention of Congress, at this time, indispensable, (communicated in your Speech to both Houses,) has excited in us the strongest emotions. Whilst we regret the occasion, we cannot omit to testify our approbation of the measure, and to pledge ourselves that no considerations of private inconvenience shall prevent, on our part, a faithful discharge of the duties to which we are called. We have constantly hoped that the nations of Europe, whilst desolated by foreign wars, or convulsed by intestine divisions, would have left the United States to enjoy that peace and tranquillity to which the impartial conduct of our Government has entitled us; and it is now, with extreme regret, we find the measures of the French Republic tending to endanger a situation so desirable and interesting to our country. Upon this occasion we feel it our duty to express, in the most explicit manner, the sensations which the present crisis has excited, and to assure you of our zealous co-operation in those measures which may appear necessary for our security or peace. Although it is the earnest wish of our hearts that peace may be maintained with the French Republic, and with all the world, yet we will never surrender those rights which belong to us as a nation; and whilst we view with satisfaction the wisdom, dignity, and moderation, which have marked the measures of the supreme Executive of our country, in its attempts to remove, by candid explanations, the complaints and jealousies of France, we feel the full force of that indignity which has been offered our country in the rejection of its Minister. No attempts to wound our rights as a sovereign State will escape the notice of our constituents; they will be felt with indignation, and repelled with that decision which shall convince the world that we are not a degraded people, that we can never submit to the demands of a foreign power without examination and without discussion. Knowing as we do the confidence reposed by the people of the United States in their Government, we cannot hesitate in expressing our indignation at any sentiments tending to derogate from that confidence. Such sentiments, wherever entertained, served to evince an imperfect knowledge of the opinions of our constituents. An attempt to separate the people of the United States from their Government, is an attempt to separate them from themselves; and although foreigners, who know not the genius of our country, may have conceived the project, and foreign emissaries may attempt the execution, yet the united efforts of our fellow-citizens will convince the world of its impracticability. Sensibly as we feel the wound which has been inflicted by the transactions disclosed in your communications, yet we think with you, that neither the honor nor the interest of the United States forbid the repetition of advances for preserving peace. We, therefore, receive with the utmost satisfaction your information that a fresh attempt at negotiation will be instituted; and we cherish the hope that a mutual spirit of conciliation, and a disposition on the part of France to compensate for any injuries which may have been committed upon our neutral rights; and, on the part of the United States, to place France on grounds similar to those of other countries in their relation and connection with us, if any inequalities shall be found to exist, will produce an accommodation compatible with the engagements, rights, duties and honor of the United States. Fully, however, impressed with the uncertainty of the result, we shall prepare to meet with fortitude any unfavorable events which may occur, and to extricate ourselves from their consequences with all the skill we possess, and all the efforts in our power. Believing with you that the conduct of the Government has been just and impartial to foreign nations, that the laws for the preservation of peace have been proper, and that they have been fairly executed, the Representatives of the people do not hesitate to declare that they will give their most cordial support to the execution of principles so deliberately and uprightly established. The many interesting subjects which you have recommended to our consideration, and which are so strongly enforced by this momentous occasion, will receive every attention which their importance demands; and we trust that by the decided and explicit conduct which will govern our deliberations, every insinuation will be repelled which is derogatory to the honor and independence of our country. Permit us, in offering this Address, to express our satisfaction at your promotion to the first office in the Government, and our entire confidence that the pre-eminent talents and patriotism which have placed you in this distinguished situation, will enable you to discharge its various duties with satisfaction to yourself and advantage to our common country. To which the PRESIDENT returned the following answer: _Mr. Speaker, and Gentlemen of the House of Representatives_: I receive with great satisfaction your candid approbation of the convention of Congress; and thank you for your assurances that the interesting subjects recommended to your consideration shall receive the attention which their importance demands; and that your co-operation may be expected in those measures which may appear necessary for our security or peace. The declaration of the Representatives of this nation, of their satisfaction at my promotion to the first office in the Government, and of their confidence in my sincere endeavors to discharge the various duties of it, with advantage to our common country, have excited my most grateful sensibility. I pray you, gentlemen, to believe, and to communicate such assurance to our constituents, that no event which I can foresee to be attainable by any exertions in the discharge of my duties, can afford me so much cordial satisfaction as to conduct a negotiation with the French Republic, to a removal of prejudices, a correction of errors, a dissipation of umbrages, an accommodation of all differences, and a restoration of harmony and affection, to the mutual satisfaction of both nations. And whenever the legitimate organs of intercourse shall be restored, and the real sentiments of the two Governments can be candidly communicated to each other, although strongly impressed with the necessity of collecting ourselves into a manly posture of defence, I nevertheless entertain an encouraging confidence that a mutual spirit of conciliation, a disposition to compensate injuries, and accommodate each other in all our relations and connections, will produce an agreement to a treaty consistent with the engagements, rights, duties, and honor of both nations. JOHN ADAMS. UNITED STATES, June 3, 1797. MONDAY, June 5. _Defensive Measures._ The House then resolved itself into a Committee of the Whole on the state of the Union, and the Speech of the PRESIDENT, at the opening of the session, having been read, Mr. W. SMITH said, he wished to lay upon the table a number of resolutions, which it appeared, if it should not be found advisable to carry the whole of them into effect, were at least worthy of discussion. He did not, however, at present, pledge himself to support the whole: they were as follow: "1. _Resolved_, That further provision ought to be made by law, for fortifying the forts and harbors of the United States. "2. _Resolved_, That further provision be made by law, for completing and manning the frigates United States, Constitution, and Constellation. "3. _Resolved_, That provision be made by law, for procuring by purchase a further naval force, to consist of ---- frigates of ---- guns, and ---- sloops of war of ---- guns. "4. _Resolved_, That provision be made by law, for empowering the President to employ the naval force of the United States, as convoys to protect the trade thereof. "5. _Resolved_, That provision be made by law, for regulating the arming of the merchant vessels of the United States. "6. _Resolved_, That the existing Military Establishment ought to be augmented by an addition of one regiment or corps of artillerists and engineers, and ---- companies of dragoons. "7. _Resolved_, That provision be made by law, for empowering the President to raise a provisional army, to consist of ---- regiments of infantry, one regiment of artillery, and one regiment of dragoons, by commissioning the officers, and by volunteers or enlistments, whenever the circumstances of the country shall, in his opinion, render the said army necessary for the protection and defence of the United States: _Provided_, That neither the officers nor soldiers shall receive any pay or emoluments until called into actual service. "8. _Resolved_, That provision be made by law, to authorize the President to borrow, on the credit of the United States, a sum not exceeding ---- dollars, to defray the expense which may arise in providing for the defence and security of the United States. "9. _Resolved_, That provision be made by law, to raise a revenue adequate to the reimbursement, within ---- years, of such sum as may be borrowed, as aforesaid. "10. _Resolved_, That provision be made by law, to prohibit, for a limited time, the exportation of arms, ammunition, and military and naval stores." The resolutions having been read from the chair, Mr. W. SMITH moved the first of them. Mr. GILES wished the gentleman would reverse his propositions, and let the one for raising money come first. He did not know whether they were prepared to meet this expense. He did not mean to oppose the present motion; he supposed it would pass. But he thought they were about to be too precipitous in their measures. At a time when all Europe seemed to be tired of war, and about to make peace, we seemed to be disposed to rush into it. He did not believe that much good would be done by this system of fortification. He did not think the United States were more secure now, than before they had a single work of the kind. We have, said he, an extensive sea-coast, and it was not to be expected that an enemy would choose to come to precisely the place where a fortification stands. It was his opinion that the interests of the country would be served, by letting this matter lie over till next session. Mr. WILLIAMS observed, that the sense of the committee should be first taken upon the propriety of going into the measure; if there was a majority in favor of it, (and he could not doubt it,) the matter would be referred to a select committee, who would make their report upon it. Mr. S. SMITH was in favor of going into this measure; for if the war continued in Europe, he thought it probable we might be drawn into it. Mr. SWANWICK should not be opposed to the present motion, because he agreed with the gentleman from Maryland, that whilst the war continued in Europe there was a probability of this country being drawn into the vortex. But he thought there was some weight, also, in the observation of the gentleman from Virginia, with respect to the ways and means; because, if, after they should agree to carry into effect certain measures, they should disagree about the means, their time would have been spent to no purpose. The question was put and carried, there being 62 votes in favor of it. _Completing and Manning the Frigates._ Mr. GALLATIN said, if the question was to determine the principle of manning the frigates, the resolution stood right as it was. But if it were not intended, by adopting this resolution, to commit any man, but only to say that they would take the business into consideration, and if found useful and necessary, and funds were attainable, they would carry it into effect, then the amendment of the gentleman from New York (Mr. LIVINGSTON) would be proper. As to the committee's rising, he could see no ground for it, as these propositions were not new--they had had them before them for three weeks in the Speech of the PRESIDENT. Of course, so far as related to the frigates, gentlemen must have formed an opinion; yet he agreed that it was desirable to see some documents on the subject, before a decided affirmative or negative was given. He was, therefore, in favor of the amendment for a committee to be appointed. He wished all those subjects which were of a doubtful nature to be then determined. On the other hand, those upon which members were ready to decide at once, either by an acceptance or rejection, might be voted upon in the form in which they were introduced. Mr. PARKER read the motion which was entered into last year, and thought it would be a good model for the present. Mr. W. SMITH was of a different opinion. He thought the committee should first decide the abstract principle. He thought it would be wrong to refer to a select committee a business in which every member was so intimately interested, and he doubted not gentlemen were ready to decide upon this abstract question. With regard to expense, he was of opinion that if the situation of the country required it, that should be no object. If gentlemen thought differently, they would of course negative the proposition. Any information on the subject could be got before the business was finished. He thought they should first say what were the necessary objects of expense, and then provide the money, which might be done by borrowing or by taxes. If there was a necessity for the expense, there was no doubt the money would be raised. If gentlemen were not prepared to discuss the subject, he had no objection to the committee's rising, and, in the House, the Secretary of War might be called upon for information. Mr. NICHOLAS thought the question was not fairly presented. It was whether they should man the frigates. But when they were called upon to determine this, they should know when they would be ready to receive the men. The probability was that the frigates would not be ready to receive the men before the next session of Congress. Mr. DAYTON (the Speaker) was in favor of the original proposition. He wished to provide for manning all the frigates which could be got ready before the next session of Congress. He believed if they adopted this plan, unnecessary delay would be prevented. Mr. PARKER was ready to vote for the proposition of the gentleman from South Carolina. He believed the frigate in Philadelphia might be equipped, rigged, and manned, in three months. The only reason why he varied his motion was, that he might include the next proposition; but he believed it would be better for them to stand separate, as, before he voted for the additional vessels, he should wish to know how the means were to be got, and for what purpose they were to be used. The vessel at Boston, he said, would not be ready so soon, but it would be in readiness before the next meeting of Congress; that at Baltimore would be in readiness to receive her men in four months. Mr. S. SMITH said, the frigate building at Baltimore would be launched on the 4th of July, and the equipments were in greater forwardness than those for the frigate at Philadelphia. Mr. BALDWIN was against referring this proposition to a select committee. It would be desirable, indeed, to know what the cost of doing the business would be, but every one knew how little to be relied upon were estimates of this kind. He was ready to vote for manning the frigates; indeed there was no question upon which he was so ready to say aye, as upon this. The question was about to be put on Mr. LIVINGSTON's motion, when Mr. VARNUM said he thought the wording of the resolution improper, as the word "completing" would clash with the act of last session. The question was put and negatived, 50 to 34. Mr. MACON wished the frigates to be completed, but not manned, he therefore moved to strike out the words "and manning." The question was put and negatived; there being only twenty-four votes in favor of it. Mr. GILES moved to strike out the word "completing;" but, after some conversation, the motion was withdrawn, and the original resolution was carried. The third proposition next came under consideration. Mr. NICHOLAS hoped the gentleman who introduced this motion, would tell them for what purpose these additional vessels were wanted. He supposed this resolution to be connected with the next, and if so, he thought they should be considered together. What, he asked, were to be the instructions given to the commanders of these vessels? He thought it a very embarrassing business, and one that would certainly lead to war; nay, indeed, the thing seemed to be a war operation in itself. Mr. W. SMITH wished the gentleman had made his inquiries before. They would have come more properly when the frigates were under consideration, as the same objection would be against both; and the next resolution had no more connection with this than with that already agreed to. The gentleman seemed to have let go the opportunity of calling upon him; as, however, he did not wish to evade his call, (though he was not willing to say he would himself vote for the measure,) he would say that it appeared to him, from the present state of the commerce of this country, to be necessary to provide convoys for our vessels. These vessels might not, indeed, be employed as a regular convoy, but partly confined to the coasts and harbors. Mr. NICHOLAS expected the gentleman from South Carolina would have acknowledged that the two resolutions were connected. Indeed he must have intended those vessels to be employed in this way, or such a resolution would not have been introduced. With respect to Sweden's treaty for a reciprocal convoy, there was some ground for it, as there was a difference between the Northern Powers of Europe, as to the principle of free ships making free goods; but where there was no difference as to the principle, no such thing could take place. Mr. GALLATIN said the present resolution was certainly in some degree connected with the next. It was understood that the purchasing of frigates and sloops of war, was for the purpose of convoying our trade. Under the present circumstances of this country, he should be opposed to this proposition; not that he denied the right of neutral powers to afford convoys to their merchant vessels; but, because under present circumstances it was impolitic to adopt the measure, not only for the reasons urged by the gentleman from Virginia, but on account of our situation with respect to France at the present moment. By our treaty with France, enemy's property was to be respected on board of American vessels, and certain articles used in the building of ships were not considered as contraband; the PRESIDENT would, of course, be obliged to give orders to have our vessels protected in this situation, and who could not see that this would be the source of war; and if the convoy were not to be employed to enforce these two privileges, he did not see what use it could be of. He knew that depredations without number had been committed in the West Indies; but he was led to believe that this was done by pirates more than by any other vessels. But suppose it were practicable to distinguish between those vessels which were regularly, and those which were piratically taken; yet, he must confess he would not be for running the risk of a rupture, by sending out armed vessels to contest the point, especially when we have reason to believe that these attacks are unauthorized by the French Government. Mr. G. thought it would only be necessary to extend our navy in case of war, and were this unhappily to be our situation, vessels might easily be purchased without delay; but whilst we were at peace, he did not think the advantages which could be derived from a convoy would be a sufficient inducement to go into the measure. Besides he was induced by another motive to give this proposition his negative. He knew the depredations upon our commerce had been great; but he did not look upon this loss as falling only upon merchants. There was not an individual who did not bear a part of it.[17] For instance, if a merchant paid ten or fifteen per cent. additional upon his cargo, he will put a proportionably high price upon his commodities, which must eventually be paid by the consumer. Therefore, so far as an argument might be drawn from this circumstance, it became a question of expediency, and he thought it would be granted, that the loss to individuals would be less in this way than if they had to support a navy to protect our trade. Mr. W. SMITH acknowledged that there was considerable weight in the arguments of the gentleman from Pennsylvania, though he did not find sufficient weight in them to change his opinion of the propriety of the measure. The gentleman from Virginia had endeavored to show that, as there was no difference of opinion as to principle between France and this country, the regulations entered into with Sweden did not apply; whilst the gentleman from Pennsylvania had produced arguments to show that we were in that situation. With respect to the treaty articles in dispute, it would be an easy matter for the President to give the commanders of our vessels proper instructions on that head. And would any gentleman say it was not right to defend our vessels against pirates? Would not the French say, if they were applied to for redress, "You knew these were pirates; why did you not defend yourselves against them?" The expense, which seems so much to alarm gentlemen, should be put out of the question. The only question, said he, is, if your property is unjustly attacked, will you defend it? But it was said the loss did not fall upon the merchant, but upon the consumer. Mr. S. asserted it fell upon the country; and so far from the expense of the proposed armament being equal to the loss sustained by captures, it would not, in his opinion, be a tenth part of the amount, for whatever the plunderers got this country lost. Mr. S. said he had made a rough calculation of what would be the expense of three frigates, of 32 guns, and six sloops of war of 16 guns, and found it to be $926,000, including the equipment and manning for one year. Mr. GILES said, the gentleman from South Carolina talked of defensive measures, but his plans were offensive. That gentleman had undertaken to doubt the right of France to declare her ports rebel ports. Was this defensive? Every nation had this right. It was not long since Great Britain exercised it against us. Yet, aided by a convoy, he wished to push our trade to these ports. This would not only be hazarding the peace of the country, but taking the direct road to war. Besides, said Mr. G., could it be expected that six or ten frigates could convoy all our vessels? No; not a twentieth part of them. They could, therefore, be of little use, but might be the means of producing the greatest evil to the country. Mr. BALDWIN said, in all their determinations with respect to a naval force, however great the emergency, it has always been determined to build, rather than purchase vessels, and he saw no reason for departing from this mode in the present instance. After some objections from Mr. W. SMITH to the building plan, which he said would take three or four years to furnish the proposed vessels, whereas merchant vessels might be immediately purchased, which would answer the purpose of small frigates, the committee rose, reported the two resolutions, which the House took up and agreed to, and committees were appointed to report upon them by bills or otherwise. WEDNESDAY, June 7. _Defensive Measures._ ARMING MERCHANT VESSELS. The 5th, which was in the following words, having been read, "_Resolved_, That provision be made, by law, for regulating the arming of merchant vessels of the United States," Mr. SWANWICK inquired, with what view these vessels were to be provided? Against whom they were to be employed? and in what cases they were to defend themselves? The information which he might receive on these inquiries, he said, would have considerable weight in influencing his vote. Mr. HARPER said the detail would be brought forward in the bill; the principle was now only to be determined. He had not thought of all the modifications which might be given to it, though he had thought of many; but it would be best discussed in its general form. The gentleman, if he thought proper, might introduce into the resolution any principle which he might wish to have inserted in it. Mr. WILLIAMS said it was well known that a number of our merchantmen were arming in different ports of the Union, and it was, therefore, necessary to regulate this business, to prevent mischief being done. Gentlemen might differ in opinion with respect to the marine law or laws of nations on this subject; but all would wish, since vessels were arming, that they should be put under some restraint. When he voted for manning the frigates, he did it with a view to have them employed in the defence of our coasts, and not as a convoy. Our situation, he said, was truly critical, and he was undetermined how far it would be proper to arm the merchant vessels of the United States; but to prevent mischief, he wished the resolution might be agreed to, reserving to himself the right of voting ultimately for or against it. It might afterwards undergo such modifications as should be found necessary. Mr. LIVINGSTON said the gentleman from Pennsylvania had very properly inquired what was the scope of the present resolution, and he expected some answer would have been given. The gentleman from South Carolina had said they must vote for the principle, and the detail would come of course. So that without knowing its object, whether it was defensive or offensive, they were called upon to agree to the principle. This deficiency had been supplied in some degree by the gentleman from New York. He says the merchants have undertaken to arm their vessels. He wished to know whence he derived his information? The only information before them was in the PRESIDENT's Speech, where he says he has forbidden such armament, except in the East India trade. He therefore supposed the fact not well founded. What, he asked, was intended to be done with these armed vessels? He said they must argue hypothetically. He supposed they were intended to protect our trade. He did not believe they were meant to operate offensively. But he would ask if this were the case, if it would not lead directly to war? since individuals would be left to determine the laws of nations, and of course the peace of the country would be placed at their disposal, and all precautions, on the part of Government, would be in vain, since individuals, who might have an opposite interest to that of the Government, might be continually committing acts of hostility. Mr. S. SMITH acknowledged that the present was a very delicate subject; but had not the PRESIDENT forbidden the arming of merchant vessels, he should have been of opinion that the merchant vessels of a neutral power had always a right to arm for their own defence. But he believed it was necessary that something should be done. Merchants would arm their vessels from the right given to them by the law of nations, and, if not restrained, might go on to do acts which could not be justified. Though he believed merchants possessed the right of arming their vessels, yet, rather than do any thing which would involve the country in war, he believed they would desist from the practice, and bear the losses which they might, for the want of arms, suffer. He moved to strike out the word "regulating," and to insert in the place of it "restricting in certain cases." Mr. GALLATIN said it seemed as if the motion of the gentleman from South Carolina was susceptible of any shape, since the amendment now incorporated into it seemed to have a different view from the original. At present he would state his objections to the principle of the resolution itself. The first inquiry was, whether the law of nations permitted the merchant vessels of neutral nations to arm? If they had not a right to permit it, whether they are not bound to prohibit it? He had examined the law of nations on this subject, and found no such authority, nor did the practice of modern times justify the practice. He took a view of the different stages of society, to show that whenever regular governments were established, the public defence was always placed in them, and it was their duty to protect individuals, since they did not give them leave to protect themselves. Mr. G. said he knew of no exception but in case of letters of marque and reprisal, and he did not know a single instance within the last century where these had been granted, but war had been the consequence, so repugnant were they to the present state of society. It was true, nations might be in such a state as to find it necessary to grant such a power; as when a nation with which it has to do is unable to support the common relations of intercourse. Two instances of this kind presented themselves, viz: the East India trade and the Mediterranean trade. In carrying on our trade with the East Indies, our vessels were met by those of a number of uncivilized powers, upon whom no restraint could be had, so that no remedy was left to us, but immediate resistance. Nearly of the same nature was the situation of the Barbary Powers in the Mediterranean; and, although we enter into a treaty with them, we have not a perfect reliance upon their observing their engagements; our merchant vessels are therefore permitted to trade to those parts armed. He knew it might be said that, at present, the West Indies were in a similar situation. He believed, in some respects, they were; and this could be the only plea for adopting a measure like the present. If it were to be understood that there was to be an end of the negotiation with France, or that the privilege of arming would not be abandoned, it might be proper to authorize the arming of merchant vessels; but he believed, if it were considered that such a permission would be almost certain to involve us in war, it would appear to be much more wise to await the event of the negotiation with France; not that he was afraid of offending France by a measure of this kind, but he was afraid of involving our country in a war. Mr. S. SMITH conceived that Congress were called together to adopt such measures as were best calculated to preserve the peace of the country, by means of negotiation, and to fix upon such means of defence as would not be injurious to the country. It was his opinion that the President was not authorized by law to prevent the vessels of merchants being armed; but the merchants of the United States would readily submit to any loss rather than go to war. He knew that this was the opinion of the Philadelphia merchants: he had seen many of them. Nor had he met with one native American who wished to go into this arming plan; they believe it would infringe our neutrality, and throw us into a war. When he came here, his mind was scarcely made up on the subject. He did not like to give up his right to defend his property; but he had found this to be the general opinion, and therefore he brought forward the amendment, which had been well amended by the gentleman from Connecticut. The gentleman from South Carolina had since added _West Indies_, and this brought them to an issue; for it was war or no war. If the latter amendment was agreed to, he should be for striking out the whole, leaving it general; because, with West Indies in it, it would be particularly pointed. They had been told of the loss sustained by spoliations, and where it fell. He believed it fell upon the great body of the people of America, and that the fall in the price of produce had been occasioned principally by the British Admiral having forbidden the carrying our provisions to Hispaniola. The British fleet in the West Indies, he said, was supplied with provisions from Ireland, whilst the French depended upon this country for supplies; so that they were our best customers there. FRIDAY, June 9. STEPHEN BULLOCK, from Massachusetts, appeared, produced his credentials, was qualified, and took his seat. _Defensive Measures._ NAVAL FORCE. Mr. W. SMITH said, he had waived a consideration of the third and fourth resolutions, in order to pass to the fifth, because he thought it was probable the committee would have determined upon arming our merchant vessels; and if so, it might have influenced the votes of members on those; but, as the committee had just decided against arming merchant vessels, he should propose another resolution to the committee. It was well known that the three frigates which had been agreed to be manned, would not be ready for sea for several months; in the mean time there might be occasion for some armed vessels; he should, therefore, submit to them the following resolution: "_Resolved_, That it is the opinion of this committee, that the _President of the United States_ ought to be authorized by law to provide a further naval force, whenever, in his opinion, the circumstances of the country shall require the same; and that ---- dollars be appropriated for that purpose." The CHAIRMAN said the resolutions of the gentleman from North Carolina were first in order. Mr. W. SMITH said he had no objection to the proposition of the gentleman from North Carolina, as a part of a plan of defence, but he thought it also necessary to attend to the protection of our commerce. Mr. BLOUNT said, it was perfectly indifferent to him whether the gentleman from South Carolina considered his plan as a part or the whole of a system. That gentleman had accused those who voted against his proposition, with being unwilling to place the country in a posture of defence. Now, he had voted against, and should continue to vote against, his proposition--but he was willing, notwithstanding (as he believed all those who voted with him were) to put the country in a state of defence. It was his opinion that internal defence only was necessary. He thought the system which he had proposed would be sufficient. When they had adopted this resolution, it might be considered whether any thing more was necessary. He had no idea of creating a naval force for defence; on the contrary, he believed it would be the means of plunging us into fresh difficulties. For this reason, if the resolution he had proposed were passed into a law, he should go home satisfied, with a belief that he had done all that was necessary. And he was convinced that his constituents would believe that he never wanted a disposition to defend his country when in danger. Mr. W. SMITH did not think these propositions could be of any use at present; they would be very proper in case an invasion was apprehended. He thought the principal object, at this time, was to defend our commerce, and thereby secure the revenue arising from it, either by an effectual naval armament, or by an embargo; and he thought he was correct in saying, in reference to this defence, that the gentleman opposed every thing, and proposed nothing. Gentlemen, he said, were very ready to propose things which would cost the public nothing: the militia measure proposed would cost no more than the passing of the law; but, if ever any expense was to be incurred, then all was opposition. The commerce of the country could not be defended, without calling upon the people for revenue; and he thought those gentlemen who stepped forward to advocate such measures as involved expense, and which were consequently in some degree unpopular, deserved the gratitude of their constituents. He had never hesitated to do this, when he thought it necessary. He should not, however, object to the passing of this proposition; he only rose to say, he did not think it immediately necessary. Mr. W. SMITH called for the reading of a similar resolution passed in 1794; which being read, and a wish expressed that the present might be made conformable to it, Mr. BLOUNT gave his consent; and, after a few observations from Mr. WILLIAMS in favor of the resolution, though he denied that it could be carried into effect without expense, the resolution was agreed to. SATURDAY, June 17. A bill was reported forbidding citizens of the United States from entering into the service of any foreign Prince or State in a state of war, which was read twice and committed to a Committee of the Whole on Monday. _Stamp Duties._ Mr. W. SMITH, from the Committee of Ways and Means, reported a bill for laying a stamp duty on vellum, parchment, and paper, viz: For a license to practice as a counsellor, attorney, &c., five dollars. For every grant, or letters patent, four dollars. For every exemplification or certified copy of letters-patent, two dollars. For every receipt or discharge for any legacy of fifty dollars and not more than one hundred dollars, twenty-five cents; above one hundred and not more than five hundred dollars, fifty cents; and for every additional five hundred dollars, one dollar; but not to extend to legacies left to a wife, children, or grand-children. For every policy of insurance of vessels or goods from one district of the United States to another, twenty-five cents. For every such policy of insurance to a foreign port, for a sum not exceeding five hundred dollars, twenty-five cents; if it exceeds five hundred dollars, one dollar. For every exemplification, of what nature soever, fifty cents. For every bond, bill, or note, (except the note of the chartered banks which may be now or hereafter in existence,) not exceeding one hundred dollars, ten cents; above one hundred dollars, and not exceeding five hundred dollars, twenty-five cents; above five hundred dollars, and not exceeding one thousand dollars, fifty-cents; above one thousand dollars, seventy-five cents. (If payable within sixty days, they will be chargeable with only two-fifths of these duties.) For every protest of a note, twenty-five cents. For every letter of attorney, twenty-five cents. For every certificate or debenture, for drawing back any duty on the re-shipping of goods, one dollar. For every note or bill of lading, for goods from one district to another, within the United States, (not in the same State,) ten cents. For ditto to a foreign port, twenty-five cents. For every inventory or catalogue of furniture, goods, or effects, in any case required by law, (except in the case of distraining for rent, or an execution,) fifty cents. For every certificate of a share or shares in the Bank of the United States, or other bank, ten cents. The bill was twice read, and ordered to be committed to a Committee of the Whole on Monday. WEDNESDAY, June 21. _Expatriation._ The SPEAKER having informed the House that the unfinished business of yesterday, viz: the bill prohibiting citizens of the United States from entering into the military or naval service of any foreign Prince or State, had the priority. Mr. GALLATIN moved to have it postponed, in order to take up the bill respecting an additional naval armament. This motion was supported by Mr. GILES, and opposed by Mr. W. SMITH, and negatived, 35 to 34. The bill respecting foreign service was then taken up, and, on motion of Mr. HAVENS, it was agreed to leave the time for its taking place a blank. Mr. COIT moved to strike out the sixth section. [It defined the mode in which a citizen of the United States might dissolve the ties of citizenship, and become an alien.] Mr. SEWALL hoped it would be struck out. In every country in the world where civil society was established, the citizens of that society owed a certain duty to their Government, which they could not readily get rid of; but they were about to establish a principle to put it in the power of the citizens of the United States, at their will, and without any pretence, to say they would be no longer subject to the Government; and this is at a moment of danger, when citizens of other countries might be called home from this country. He thought this would be extremely wrong; it would be giving an opportunity for insult to our courts and country, and he was sure no nation would show us so much complaisance in return. Mr. CLAIBORNE thought it no more binding for citizens born in the United States to continue citizens of the United States, than it was for a Roman Catholic or Protestant to continue of that opinion, when he arrived at the years of maturity and could judge for himself. He insisted upon it, men had a natural right to choose under what government they would live; and they had no reason to fear our citizens leaving us whilst our Government was well executed. He did not wish citizens of the United States to be in the situation of subjects of Great Britain, who, though they had left the country forty years ago, were liable to be considered as subjects of that Government. He trusted the rights of man would not be thus infringed, but that they should allow the right of expatriation unclogged. Mr. SEWALL said, there was a great difference between the two cases which the gentleman had stated. A man born and educated in a country certainly owed it obligations, which were not to be shaken off the moment he chose to do so. The different societies of the world, he said, were like so many families independent of each other; and what family, he asked, would suffer any of its members to leave it and go into another when they pleased? He thought it unreasonable that it should be so. Mr. W. SMITH said, that the doctrine of perpetual allegiance was derived from Great Britain, and, though it might be good in theory, was not so in practice. They had departed from many doctrines derived from that country, and the time was come, he believed, for departing from this. The idea of a man being compelled to live in this country, contrary to his will, seemed to be repugnant to our ideas of liberty. He thought when a man was so disgusted with a country as to resolve to leave it, for the purpose of becoming a citizen of another country, he should be at liberty to do so on his complying with certain formalities, and should never again be re-admitted. It was upon this principle that this section is founded, and he thought it valuable. Mr. S. thought this section essential, as it would be a means of preventing quarrels with foreign countries. For instance, if a citizen of this country took command of a French ship of war, and were to commit hostilities on the property of citizens of the United States, if he were taken he might allege that he was a citizen of the French Republic, and that Government might claim him as such; but if this bill passed, no man could cover himself under this pretence who had not complied with the requisitions in this act. He mentioned the case of Mr. Talbot. Mr. S. said they held out inducements for persons to come to this country. We did not allow they owed allegiance to any other country after they had become citizens of this. To grant this would be a fatal doctrine to this country. It would be to declare that, in case we were at war with another country, that country might recall persons from this, who formerly came from thence. Many persons of that description were amongst us. At present they enjoy all the benefit of our laws and vote at our elections; and yet, if this doctrine were admitted, these persons might be recalled as aliens; and if they were not recalled, they would be considered as qualified aliens, and not as real citizens. This law, Mr. S. said, was necessary, as at present there was not sufficient energy in the Government to punish persons serving on board foreign ships of war. This bill would cure the evil, and give an opportunity for turbulent, discontented characters to leave the country for ever. He believed it was the general opinion of the citizens of this country that they had the right to expatriate themselves, and he thought it was now a proper time to pass some regulations on this subject. Mr. SITGREAVES thought this one of the most delicate and important subjects that ever came before Congress. He saw a number of difficulties, but he thought they were not of a nature to discourage them from considering the bill. He trusted they should meet them with firmness. The evil, he said, which gave rise to this bill was a great and growing one. In the first war which had taken place in Europe since our independence, they found this doctrine of expatriation, as claimed by our citizens, endangering our peace with a foreign nation, and if this principle were admitted he feared we should always be liable to similar embarrassments. Mr. S. took notice of the different objections made to this section. He observed there seemed to be much doubt on the subject, which he thought ought to be removed by passing a law of this sort. He wished he could agree in the opinion that no citizen had a right to expatriate himself from this country. He thought it a doctrine essential to the peace of society. He wished it was generally recognized; but he believed the major opinion in this country was different; and, though not directly, it had in a great degree been recognized by the Executive and Judiciary in the cases of Hinfield and Talbot. He feared, therefore, it was too late for them to say the right did not exist. It was time, however, for Congress to declare an opinion on the subject. If the proposition in the bill was not a proper one, it should be made so. In the State of Virginia this doctrine was legalized, and in the constitution of Pennsylvania it was strongly indicated, as it said "emigration should not be prohibited." It was a favorite idea of a republican Government not to forbid it. He did not agree with the principles of the clause in all its parts. He thought citizens ought not to be allowed to expatriate in time of war, as their assistance would be wanted at home. It was his intention to have moved an amendment allowing expatriation only in the time of peace, and an express provision against it in time of war. He thought the doctrine of the gentleman from Maryland, viz: that our citizens ought to go into other countries to learn the art of war, was chimerical. When they had obtained rank and wealth in a foreign country, it would be in vain to call them back; they would not return. He hoped, therefore, the section would not be struck out, but that they should proceed to amend it. Mr. N. SMITH was sorry that the committee who reported this bill had thought it necessary to report the sixth and seventh sections. The doctrine of expatriation on one hand, and perpetual allegiance on the other, were subjects they had all heard much about; but expatriation, under limitation and restraint, was a new business. From its novelty it became doubtful. This being the case, he wished the subject had been deferred to an ordinary session; particularly as it appeared to be no more connected with other parts of the bill than with many other laws now extant. If we were to have a law on this subject, he should wish to have it in a separate bill. For his part, he could not see how the committee could suppose it to be a part of their duty to report these sections. If he had thought it had, he should not have voted for appointing a committee on the occasion. Gentlemen advocating these clauses, say they would not allow of expatriation in time of war. He would go further and say he would not allow of it when there was a prospect of war, for it is idle to prohibit it in one case and not in the other. He then asked if this was not the very state in which we now were? If it were, why pass such a bill at this time, when it could not go into operation? He thought this a good reason for rejecting these clauses. There was a mutual obligation, Mr. S. said, between a Government and all its citizens. The Government owed protection to its citizens, and citizens owed obedience to their Government. These duties were mutual and co-extensive; and they might as well say that Government could abandon its citizens when it pleased as that citizens could desert their Government when they pleased. Yet he would allow that Government might, on certain occasions, legalize expatriation, but not on the ground of a citizen's having a right to expatriate when he pleased. He should have no objection to take up the subject at a time when they could do justice to it, but he thought the present was not that time. The question for striking out the 6th section was put and carried, 45 to 41. The committee accordingly rose, and the House took up the amendments. Having come to that part for striking out the 6th and 7th sections, Mr. DENT called for the yeas and nays, which were agreed to be taken. Mr. VENABLE said, it seemed to be admitted that a right of expatriation existed in our citizens; and if so, he thought there should be some mode of exercising that right. He had no particular objection to the mode marked out in these clauses. It had been said this was not the proper time; but he thought it was, since it was in some degree connected with the present bill. The gentleman from Connecticut had stated allegiance and protection to be mutual. He did not think they were so, to the extent which he stated. This Government was not bound to protect citizens who went into foreign service, as in doing so they chose the protection of another Government. Mr. HARPER asked for an instance in which the Executive and Judiciary had countenanced the doctrine of expatriation. Mr. W. SMITH, in answer to his colleague, produced the case of Talbot, and the opinion given by the Secretary of State and the Judiciary Court, on that occasion, in favor of the right of expatriation. Mr. GILES thought there could not be a doubt in the minds of Americans on the subject of expatriation. Indeed, he said, this was the foundation of our Revolution; for they were not now to be told they owed allegiance to a foreign country. It had not only been the ground of the Revolution, but all their acts had been predicated upon this principle. He referred to the act respecting the rights of naturalization, which makes every new citizen swear to support the Constitution of the United States, and to renounce all other allegiance. Mr. GALLATIN was opposed to these sections. With respect to expatriation, having himself exercised the right, he could not be supposed to be opposed to that right. Perpetual allegiance was too absurd a doctrine to find many advocates in this country. The question was not whether citizens had a right to expatriate, but whether they should in this law prescribe a mode of doing it. The right seemed to have been recognized by the Executive and Judiciary. He was against going into this business, because he thought it unnecessary. He believed the determination of who were citizens, and who were not, might be safely left with the Judiciary. He had also his doubts whether the United States had a right to regulate this matter, or whether it should not be left to the States, as the constitution spoke of the citizens of the States. It was a doubtful matter, and ought to undergo a full discussion. The emigrants from this country to foreign countries were trifling; but from ten to twelve thousand of our citizens had gone to Canada, and upwards of five thousand beyond the Mississippi, four thousand of whom would be got back by the running of the lines. A number of these men hold lands in the United States; some have sold their lands and become citizens under another Government. This subject would, therefore, require considerable deliberation at a future day. He wished the amendment of the Committee of the Whole to be adopted. Mr. SITGREAVES confirmed his former statement, with respect to the question of the right of expatriation having been settled by the Judiciary. In order to do this, he read a note from one of the counsel in the cases of Henfield and Talbot, giving an account of the opinions of the court on the occasion. Mr. SEWALL insisted upon the policy of preventing the renunciation of allegiance, without control. The Treaty of Peace with Great Britain, he said, had dissolved our allegiance to that country, and acknowledged our independence. Mr. GILES believed the evil apprehended from individuals having the right to expatriate themselves when they pleased, was more imaginary than real. Only two citizens had taken advantage of that right in the State of Virginia, where it was allowed in all its extent, in twelve years. But if there were any citizens so detached from the Government as to wish to leave the country, he should wish them gone. To suppose this, would be to suppose a real division between the people and Government, which he did not believe had existence. It was said Great Britain did not allow the doctrine of expatriation; but, he said, she had not any naturalization law. He was in favor of excluding citizens who once expatriated themselves from ever returning to this country. Mr. OTIS said, that when this bill was first reported, these clauses struck him unfavorably; but a little reflection had convinced him of the propriety of retaining them. The passing of this provision, he said, would not affect the constitutional right with respect to expatriation, whatever it might be. This bill did not relate to persons emigrating into the Spanish or English territories, but to persons expatriating themselves, and engaging in the service of foreign countries. The question on agreeing to the reports of the Committee of the Whole to reject the sixth and seventh sections of the bill was taken, and stood--yeas 34, nays 57. All the amendments having been gone through, Mr. S. SMITH moved to postpone the further consideration of the bill till the first Monday in November. This motion was supported by Messrs. VARNUM, N. SMITH, BALDWIN, GOODRICH, and COIT, as involving a question of too delicate and important a nature to be passed over in this hasty manner, and because there was no pressing necessity to go into the measure at present. It was opposed by Messrs. OTIS, WILLIAMS, W. SMITH, and CRAIK, on the ground of the provision of the bill being necessary, and that to postpone the business, after so ample a discussion, would be undoing what they had been doing for two or three days. The question for postponement was taken, and decided in the affirmative--yeas 52, nays 44. The bill being thus lost, Mr. W. SMITH proposed a resolution to the House for appointing a committee to report a new bill without the two last clauses, which, it was evident, had been the cause of the negative given to the bill. As he supposed no opposition would be made to the bill so reported, it might be got through without loss of time. After some conversation on a point of order, whether or not this resolution could be admitted, the SPEAKER declared it in order, but Mr. COIT wishing it to lie on the table till to-morrow, it lay accordingly. THURSDAY, June 22. _Expatriation._ Mr. W. SMITH called up the resolution which he yesterday laid upon the table, for appointing a committee to bring in a bill for prohibiting citizens of the United States entering on board foreign ships of war, without the expatriating clauses. This resolution was opposed by Messrs. BALDWIN, GILES, and VENABLE, and supported by the mover and Mr. HARPER. It was negatived--49 to 46. _Depredations on Commerce._ A message was received from the PRESIDENT OF THE UNITED STATES, of which the following is a copy, with the titles of the documents accompanying it: _Gentlemen of the House of Representatives_: Immediately after I had received your resolution of the 10th of June, requesting a report respecting the depredations committed on the commerce of the United States, since the first of October, 1796, specifying the names of the vessels taken, where bound to or from, species of lading, the value, when it can be ascertained, of the vessel and cargo taken, and by what power captured, particularizing those which have been actually condemned, together with the proper documents to ascertain the same, I directed a collection to be made of all such information as should be found in the possession of the Government. In consequence of which, the Secretary of State has made the report and the collection of documents, which accompany this Message, and are now laid before the House of Representatives, in compliance with their desire. JOHN ADAMS. UNITED STATES, _June_ 22, 1797. Report of the Secretary of State to the PRESIDENT OF THE UNITED STATES, respecting the depredations committed on the commerce of the United States: 1. Abstract of two cases of capture made by the British cruisers of vessels belonging to citizens of the United States since the first of October, 1796, and wherein documents have been received at the Department of State; also a copy of a memorandum filed by S. SMITH, Esq., relating to captures made by the British of vessels in the property of which he was concerned. No documents accompany the two cases of capture above mentioned, they having been sent to London, in order that compensation might be obtained for the damages suffered. 2. A correct copy of the decree of the Executive Directory of March 2, 1797. 3. Copies of documents remaining in the Department of State, relative to American vessels captured or condemned by the French, since the first of October, 1796. 4. Extracts from communications from the Consuls of the United States, relative to depredations committed on the commerce of the United States by the French. 5. Schedule of the names of American vessels captured by the French, and of the circumstances attending them, extracted from the Philadelphia Gazette, and Gazette of the United States, and commencing with July, 1796. 6. Extract of a letter from Rufus King, Esq., Minister, &c., enclosing the protest of William Martin, master of the Cincinnatus, of Baltimore, relative to the torture inflicted on the said Martin by a French cruiser. Mr. GILES moved that the above papers should be referred to a select committee, to print such as would be useful to the House. This question was negatived--50 to 46, and a motion carried for printing the whole. _Day of Adjournment._ Mr. GILES called up the motion which had some days ago been laid on the table respecting an adjournment. Mr. GALLATIN wished to modify his motion, by making the proposed day of adjournment the 27th instead of the 24th instant. Mr. SITGREAVES moved for the yeas and nays on the question. Mr. MACON moved to make the day the 28th, which was consented to by the mover. Mr. DENT proposed to make it the 30th. The question was taken on adjourning on the 30th, and negatived--there being only 28 votes in favor of it. The question on the resolution for the 28th was carried--yeas 51, nays 47. SATURDAY, June 24. _Protection of Trade._ NAVAL ARMAMENT. The bill for providing for the protection of the commerce of the United States was read a third time, and the blank for filling up the number of men to be employed in the cutters, was filled up with thirty; on the question being about to be put on the passing of the bill, Mr. NICHOLAS said some statements had been received from the War Department, and ordered to be printed. He had not seen a copy of them, but was informed there were yet wanting $197,000 to complete the frigates. He wished information on the subject. Mr. PARKER read an extract from the account which had been printed. Mr. NICHOLAS wished to know how it happened that in four months so great a mistake could have occurred as to the expense of finishing these vessels. When the last appropriation of $170,000 was made, they were told that sum would be sufficient to make them fit to receive the men on board, but now they were called upon for $197,000 more. He thought this matter ought not to pass over without inquiry, as he did not like to be drawn from step to step to do what, if the whole matter had been seen at first, they might not have consented to. He trusted this was not intentionally done, but he owned it looked very suspicious. Mr. PARKER believed the estimate of last session was only to make the vessels ready to receive the guns on board, and did not include the guns. Mr. GALLATIN said, as he meant to vote against the passage of the bill, he would briefly state his reasons for doing so. He knew only of two arguments in favor of the bill; the first, that it was necessary during a time of peace to lay the foundation of a navy; the other was, that, the frigates being built, it would be proper to man them. As to the propriety of having a navy, he did not mean to go generally into the subject, but he would make a few observations as to our situation for engaging in an establishment of this kind. Suppose that navies were necessary in European nations, to increase their power or to protect their commerce, these considerations did not apply to our present circumstances. In order to prove this, it was only necessary to take a view of our revenue, and the expense of a fleet. The amount of revenue from the 1st of April, 1796, to the 1st of April, 1797, received into the Treasury, was $7,400,000--a sum which by far exceeded that of any former year; and he did not think that the permanent revenue of the United States could be well extended beyond that sum. For instance, he did not think that nine millions could be raised from the people without oppression. Indeed, by the best calculations on the quantity of circulating medium in the country, it was not allowed to exceed eight millions: and he did not believe that any nation could raise a larger sum in taxes than was equal to the amount of their circulating specie. [Here Mr. Gallatin produced a detailed statement to show the expense of building the three frigates, to wit: $1,014,450, and the sum of $350,000 for the yearly expense of keeping them in service, repairs inclusive.] This statement showed, Mr. G. said, that these frigates had cost about £2,000 sterling a gun, though the common calculation in Great Britain was only half that sum. If, from building the frigates, they turned to the expense of manning them, the same conclusion would be drawn. They found that the pay of an able-bodied seaman in the British navy had lately been raised from 26s. 6d. to 30s. sterling a month, which was $6 66-2/3; but, by the present law, $15,000 a month were allowed for the pay of the petty officers, midshipmen, seamen, ordinary seamen, and marines, which averaged from 16 to 17 dollars a man. When he heard gentlemen stating the advantages of the naval strength of Denmark and Sweden to those countries, he could not agree with them altogether, though he agreed they had some weight; but it was well known that the Grand Navy of Portugal had no weight whatever in the scale of the large navies of Europe; it did not even enable her to protect her trade: for, if either France or Great Britain had the superiority in the Mediterranean, she was under their control. He believed Denmark and Sweden had thirty sail of the line each, and he wished gentlemen to calculate how much it would cost us to have such a navy. A fleet of a few vessels would not then be able to afford protection to our trade; and it was wholly out of our power to have a fleet equal to that of Denmark or Sweden. Mr. SWANWICK believed the expense of these frigates had been much greater than any future ones would be. When they were told they had cost £2,000 sterling a gun, it was evident there must have been great extravagance in the expense, as merchant vessels might be built as cheaply in this country as in any other. He supposed the extra expense had been owing to the want of some regular establishment to overlook the business, and because it had been undertaken at a time when other nations were at war, and of course when materials were very high. Sixteen thousand dollars worth of hemp had indeed been burnt by accident at Boston. As to the terms of seamen, though they might at first be high, when the service was known he doubted not they would fall. Mr. J. WILLIAMS said, he had always opposed the establishment of a navy, and was the question now whether or not we should commence a navy he should certainly be against it; but, as the frigates were so far advanced, he thought they ought to finish them, especially when they considered the present critical situation of our affairs; for, if a general peace did not take place in Europe, the war would probably become a maritime war, and we might be involved in it. But he was still of opinion that if we must go into an expensive naval establishment for the protection of our commerce, we had better have none. But, say gentlemen, where will you find revenue? He believed, though we had no armed force, a considerable commerce would still be carried on,[18] and those who declined it would turn their attention to agriculture and manufactures, from which any deficiency of revenue would readily be supplied. It was true, as had been stated, that they had been called upon from time to time for additional sums to complete these frigates, and he knew not when these calls would end. Mr. GILES was obliged to the gentleman last up for his speech against the present bill, though he meant to vote for it; he would rather, however, that he had _spoken_ in favor, and _voted_ against the bill. Mr. G. said he should vote against the passing of the bill, and for the reasons assigned by that gentleman. He thought a navy would be a great evil for this country. Our great interests lay in the soil; and if ever the vitals of the country were to be drawn together for the purpose of protecting our commerce on the sea, he should greatly lament it. He believed the despotism of nations kept pace with the ratio of expense of their Governments. He was sorry to say that he was more and more convinced that it was the constant aim of some gentlemen in that House to increase the expenses of our Government. The propriety of establishing a navy had scarcely ever been seriously considered; it was first begun under an alarm, and it had been continually carried on by the same means. Mr. HARPER said gentlemen seem to abandon their objections to this bill by admitting that there was no probability it would not pass. But why? Because a majority of the House either think the measure is proper in itself, or from the particular circumstances of this country. It was surely a singular instance of modesty in gentlemen, after this concession, to argue against the passing of the bill. Mr. H. did not admit that these frigates were commenced from an idea of laying the foundation of a large Navy Establishment, but from particular circumstances; and, said he, shall we, at a time when we are threatened with danger, abandon them? He trusted not; such conduct would be absurd in the extreme, and imply a character of imbecility which he hoped their councils would never deserve. Mr. ALLEN said, he had some objection to the passing of the bill, but his objections were to the amendments which had been introduced into it, yet he did not know but he should vote for it. He thought there was a provision in the bill which went to prostrate this Government. He alluded to that part of it which directed the manner in which this force should be used. He considered this as a violation of the constitution, besides carrying upon the face of it an idea that one of the branches of this Government could not be trusted with the exercise of its power. Was it possible, he asked, for a Government to exist, when this confidence was refused to one of its branches? What were the people of the United States, and abroad, to think of this? Would not the people of this country think it their duty to destroy a power which could not be trusted; and would not foreigners despise it? It seemed as if this were the intention of gentlemen. Mr. A. also objected to the clause limiting the duration of this bill; since this went to say that they not only distrusted the other branches of the Government, but themselves. A thing which must in its nature be perpetual, was there limited. He deprecated the idea of expense being an objection to this measure. Our emancipation from the chains of Great Britain, he said, was attended with a great expense; but was it not believed that the liberty and independence of this country were of superior value to money? He trusted they were. He could only suppose, therefore, that men who objected against the expense, must themselves be sordid and avaricious. If these frigates had been provided four years ago, he believed all our present difficulties would have been prevented, and a sum vastly less than that of which we had been robbed would have done the business. Mr. A. denied that ships of war could now be built in England for £1,000 a gun; that was formerly the price, but they now cost £1,500 per gun. Mr. NICHOLAS had always been of opinion, that the expense of these frigates was a useless expense; he did not believe a case could happen, except within our own jurisdiction, where these vessels could be of advantage to us; but notwithstanding this was his opinion, he should vote for the passing of this bill, because he saw the sentiments of that House and the public were strongly in its favor, from a persuasion that the measure was necessary, and that the thing would be a continual topic of dispute until it was carried into effect. He was willing, therefore, to let the vessels go to sea, believing that nothing short of actual experience would convince the supporters of this measure that it was useless, expensive, and injurious; and hoping that by one year's experience of the plaything, finding that money was of greater value than the frigates, all parties would concur in relinquishing it. The question was then taken on the passing of the bill, and decided in the affirmative--yeas 78, nays 25, as follows: YEAS--John Allen, George Baer, jr., Theophilus Bradbury, David Brooks, Nathan Bryan, Dempsey Burges, Christopher G. Champlin, James Cochran, William Craik, Samuel W. Dana, James Davenport, Thomas T. Davis, John Dennis, George Dent, George Ege, Lucas Elmendorph, Thomas Evans, Abiel Foster, Dwight Foster, John Fowler, Jonathan Freeman, Nathaniel Freeman, jr., James Gillespie, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William B. Grove, John A. Hanna, Robert Goodloe Harper, Carter B. Harrison, Thomas Hartley, William Hindman, David Holmes, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Edward Livingston, Samuel Lyman, Matthew Lyon, James Machir, William Matthews, John Milledge, Daniel Morgan, John Nicholas, Harrison G. Otis, Josiah Parker, Elisha R. Potter, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, William Smith, of Charleston, Richard Sprigg, jr., John Swanwick, George Thatcher, Richard Thomas, Mark Thomson, Abram Trigg, John Trigg, John E. Van Allen, Philip Van Cortlandt, Peleg Wadsworth, John Williams, and Robert Williams. NAYS--Abraham Baldwin, David Bard, Thomas Blount, Richard Brent, Thomas Claiborne, Matthew Clay, John Clopton, Joshua Coit, John Dawson, Albert Gallatin, William B. Giles, Andrew Gregg, Jonathan N. Havens, Walter Jones, Matthew Locke, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, Tompson J. Skinner, William Smith, (of Pinckney District,) Richard Stanford, Thomas Sumter, Joseph B. Varnum, and Abraham Venable. The title was altered from "An act for the protection of the trade of the United States," to "An act providing a Naval Armament." MONDAY, June 26. LEWIS R. MORRIS, from Vermont, and LEMUEL BENTON, from South Carolina, appeared, produced their credentials, were qualified, and took their seats. _Stamp duties_: _Naturalization certificates_: _Lawyer's licenses_: _Conveyances_. The House went into a Committee of the Whole on the bill for laying duties on stamped vellum, parchment, and paper; when, the first section being under consideration, Mr. KITTERA moved to add, "any certificates of naturalization ---- dollars," as he thought foreigners, who were admitted to all the rights of citizens under this Government, could not be against paying a small tax on their admission to this right. Mr. MACON thought this tax would fall very heavy upon persons who came into this country to live by their labor--many of whom were not able to pay their passage, but were indented by those who brought them for a number of years; and who, if this tax were paid, would have so much longer to serve. Mr. BROOKS did not see this objection, as such persons might labor all their lives without becoming naturalized. Mr. GORDON said, that by the naturalization act, no foreigner could be admitted to the rights of a citizen until he had been five years in the country, and therefore the objections of the gentleman from North Carolina could not have any weight. The amendment was carried. Mr. SWANWICK moved to strike out five dollars, and insert ten, for licenses to practise as a counsellor, attorney, &c. He thought, if these gentlemen were taxed at all, ten dollars would be as low a sum as they could well fix upon for the purpose. Mr. VARNUM thought the tax should be much higher, if imposed at all. He spoke of the high tax laid upon the professors of the law in Massachusetts. The amendment was carried, there being 53 in favor of it. Mr. COCHRAN wished the tax to extend to lawyers who practised in the State Courts, as well as to those who practised in the Courts of the United States. Mr. NICHOLAS objected to this proposition. The lawyers, in some of the States, were already very highly taxed; besides, he doubted the right of the United States to tax the lawyers of the State Courts, as they were necessary in the State Governments. Mr. SWANWICK did not expect any objection could have been made to a tax so reasonable, especially when the bill proposed to tax merchants so heavily; they would not be able to turn themselves without a stamp, and surely the lucrative profession of the law could not think much of paying this low tax. It was said, indeed, that the merchant did not ultimately pay the duty, but the consumer; and he doubted not the lawyers would not fail to find out a way of making their clients pay the duty. Mr. DENNIS objected to this tax on the same ground with the gentleman from Virginia. If a tax of this kind, he said, were laid upon the lawyers of the State Courts, it might be extended to any other officer of the Government, and thereby annihilate the State Governments. Mr. LIVINGSTON was in favor of the amendment, because he thought the State lawyers a fair object of taxation. He denied that it would be unconstitutional, or that it would operate hardly upon a particular class of men. It was not laid upon any particular class; but upon an instrument which, indeed, to exercise their professions, lawyers would be obliged to have; but it might as well be said that the tax upon rum and sugar would fall heavily upon the sellers of those articles, and that therefore no rum or sugar would be sold. The one tax fell upon the consumer, and the other upon the client. In the State of New York, Mr. L. said, the lawyers were not taxed at all. Mr. MCDOWELL said, when he seconded the motion for striking out "five" for the purpose of inserting "ten" he did not intend the tax to be extended to the practisers in State Courts; nor did he think the constitution would warrant such an extension of it. Mr. SITGREAVES was in favor of the amendment; he wished to fix the principle. He thought that the State lawyers were a fair object of taxation, and that the profits of their business would very well bear it. But there was reason for making a distinction between the two cases. He thought there would be a hardship in extending the tax to practisers in county courts, as that would cause it to fall in some places very heavily. For instance, in Pennsylvania, there must be a separate admission into every court of every county; so that one man would probably have to pay to the amount of from two to three hundred dollars on account of this tax. He hoped the motion would be postponed for the present, and modified. He would do it himself, if time were given. The motion was withdrawn. Mr. SITGREAVES said, he understood that deeds for the conveyance of lands would have been amongst the articles taxed. He thought such a tax would be an eligible one, and in order to learn what were the objections to it, he proposed to add to the bill, "any deed for the conveyance of real estate ---- dollars." Mr. R. WILLIAMS said, this proposition had been rejected in the Committee of Ways and Means, on the ground that such a tax would clash with the jurisdiction of the States. He had the same objection to this that he should have to laying a tax upon the State lawyers. To say a deed, which was legal by the laws of a State, could not be received in evidence, except it was stamped, would be tantamount to the repealing of a State law. Mr. W. SMITH said, this subject had been frequently under discussion, both in the Committee of Ways and Means, and in that House. On this occasion, the majority of the Committee of Ways and Means was against laying a tax on deeds. He was in the minority. There was a provision, Mr. S. said, which declared that no paper upon which a duty was imposed by this act should be admitted in evidence; but there was afterwards a clause which allowed them to be admitted, on payment of ten dollars over and above the duty thereupon payable. He thought the tax would be a very good and a very profitable one. Mr. COIT thought this was a tax which should be gone into with great caution, since, if it were carried, it might be the means of losing the whole bill. He thought the bill would be better passed without this provision; and if it were found expedient, it might be added hereafter. Mr. GILES was opposed to this amendment, as interfering with the governments of the several States. All lands (except such as had been sold by the United States) were held from the States; and if this tax were to be agreed to, he believed the State courts would not refuse to admit a deed in evidence which was not stamped. Nothing would give so much alarm to the States as a subject of this sort. Mr. SEWALL did not understand the distinction made between titles to land and titles to money. He thought the objection made to a tax on a deed, might be made with equal propriety to a tax on a bond or note. If they had a right to say these should not be received in evidence in a State court, unless they were stamped, they had a right to say the same with respect to a deed. Except it could be shown that the farmer was less able to pay than the merchant, he thought no other objection had any weight. Mr. R. WILLIAMS thought there was a great difference between a note of hand and a deed. The State had nothing to do with the former, but much with the latter; since every State held grants of its lands, and a man must show his title from the original grant, before his title could be said to be a good one. He did not doubt the people being able to pay the tax; it was the principle which he contended against, which, if carried into effect, would cause a clashing of the authorities of the two Governments. If the United States could lay a tax of this sort, they might lay a tax upon every commission issued by a State. Mr. NICHOLAS did not see the smallest difference between the two cases which had been stated. And when they came to the 13th section, he should endeavor to prove that to say a piece of paper should not be received in evidence in a court, which was lawful to be received by the laws of the State, would be a violation of State sovereignty. He was not of opinion, with the gentleman from Connecticut, that they should take up the subject partially, rather than not pass the bill. He thought it best to consider a tax upon its broadest basis. It was not fair to exclude any thing which stood upon the same ground. He wished the principle to be thus fairly tested. He should, therefore, vote for the tax on deeds. Mr. LYON hoped, that if this tax was agreed to, purchases of a small amount would be excluded. Mr. SWANWICK said there would doubtless be a difference made in the duty between large and small purchases. He also disagreed with the gentleman from Connecticut. The principle, he said, was either right or not; if it were right, it should be made general: if not, it ought not to be adopted. The question was put, and negatived--47 to 32. On motion, the committee rose, and had leave to sit again. TUESDAY, June 27. _Stamp duties._ BANK NOTES. The House resolved itself into a Committee of the Whole on the bill laying duties on stamped vellum, parchment, and paper, when Mr. NICHOLAS moved to strike out the clause exempting bank notes from duty, as he could see no reason why notes upon which a profit was made, should be exempted from duty more than others. He trusted all notes would be placed on the same footing. Mr. W. SMITH hoped gentlemen did not mean, by moving to strike out this exemption, to destroy the bill. He thought the observation of the gentleman from Connecticut yesterday, against embarrassing the bill by doubtful objects, had weight. On this ground, though he was before of opinion deeds ought to have been inserted, he did not vote for inserting them. He trusted the gentleman had not fully considered the subject, and that when he did so, he would not persist in his motion. Mr. NICHOLAS believed if the favorite object of every gentleman were to be exempted, there would be nothing left upon which to lay a tax. If to oppose this, were to defeat the bill, he meant to defeat it; as he wished the tax to go to all objects of the same kind. He had no idea of favoring one interest at the expense of another; he hoped, therefore, his amendment would be agreed to. Mr. LYON expected the gentleman from South Carolina was about to have given some reasons why bank notes ought not to be taxed as well as others; but he was disappointed. He believed those who issued these notes got a good profit from them, and that it was, therefore, reasonable they should pay their proportion towards the support of Government. Mr. W. SMITH thought the tax an improper one. Banks were taxed in another part of the bill, on the transfer of their shares. A tax on bank notes, he said, would introduce a vast deal of confusion throughout the country. As for himself he did not care any thing about it; but he believed, if it were agreed to, it would produce so many objections against the bill as to prevent its passing. Mr. BROOKS was against stamping bank notes, as they were not stamped in any country whatever.[19] Indeed they were different from other notes, as they were the representatives of specie; they might, therefore, as well stamp dollars or guineas. In short, the subject was too important and intricate to be gone into at this late period of the session. Mr. VENABLE said, in proportion as the tax was general, it would be just. What was the object of the bill? It was to tax that right which an individual possesses in society, of transferring his property, and the evidences of it; it was also to tax him for the right he had of using his credit. Though the argument of the gentleman last up might appear specious, that a bank note was the representative of specie, it was not very solid; it was the representative of the credit of the bank, and circulated for its interest. An individual, if he had sufficient credit, might issue notes as well as a corporation; and, in that case, his notes would be charged with the duty, whilst those of a corporation would not. From whence, said Mr. V., is this reasoning drawn? It was drawn from the doctrine of favoritism--it was meant to favor the moneyed interest, which was already sufficiently encouraged by their incorporation. There seemed to be no objection to the principle; but merely to the convenience of the thing. If it could be shown that the tax would materially operate upon the circulation of bank notes, so as to injure the operation of money transactions, it might have some weight with him; but it was none, to say this bill must pass, and therefore let us avoid any thing in which there may be any difficulty. Such assertions went only to this, where you can tax the property of an individual, do it; but do not meddle with corporations, as this would be attended with some difficulty. He wished, if the bill passed, that it should operate equally. Mr. COIT wished the gentleman from Virginia would withdraw his motion, until he took the sense of the committee upon one which he proposed to make, and which was calculated, if agreed to, to supersede the one he had made. He would state what it was. It was his opinion that small notes should be exempted from duty. He should propose, therefore, that there should be charged on all notes exceeding fifty dollars and not exceeding one hundred dollars, ten cents, and that all of less value should go free. After a few remarks upon this motion, in which it was observed that it would defeat the bill entirely, as it would only be to make so many more notes at fifty dollars, if the sum were larger, Mr. Coit consented that the fifty should be struck out and left blank; when the question was taken and negatived, there being only twenty-five votes for it. Mr. NICHOLAS renewed his motion. Mr. SITGREAVES hoped it would not prevail. It had been admitted that if it could be proved that the stamping of bank notes would embarrass their circulation, it would be a good objection to the tax. He believed he could easily show that it would not only impede their circulation, but depreciate their value. The tax would not certainly be made to operate upon notes already issued, but upon those issued after the act took place; so that it would be necessary that every citizen throughout the United States should be acquainted with the date of their law, which would do away all confidence in bank paper. The result of this uncertainty would be that the banks would have to call in all their outstanding notes, which would cause an immediate depreciation of their value. He trusted, therefore, that so objectionable a measure would not be entered upon. Mr. GALLATIN said, he had had his doubts with respect to the propriety of stamping bank notes; he was not sure whether it might not have a dangerous effect on their circulation. On a further consideration of the subject, however, all his doubts had vanished. He now thought this amendment essential, just, and right. Indeed, when they proposed to lay a stamp duty upon all bills and notes, there appeared to be no good reason why the notes of any incorporation whatever should be excepted. He had heard only one objection; which was, that these notes differed essentially from others, because they were the real representatives of specie kept in the bank from whence they were issued. He could not see the distinction endeavored to be drawn. Private notes were always given for some consideration, whether for cash or other property, was of no consequence to them. Indeed, if they turned their attention to the nature of bank notes, they would be found to be a very fair object of taxation. Where an individual gave his note, it was not likely that he would derive any profit from it; many of such notes were what was called "accommodation notes;" all were acknowledgments of debt, and therefore no proofs of wealth; but bank notes were never issued except to produce a profit to the bank; therefore, to exempt them from duty, would be to exempt those which were best entitled to pay. The only objection would be, any inconvenience which might take place to counterbalance the benefit to be derived from the tax. It had been supposed that a depreciation would take place in the value of the notes in consequence of this tax. In order to show that this was not probable, he supposed the tax would be laid. Bank notes were issued and re-issued; but when an individual gave a note, after it was paid, there was an end of it. Bank notes might be issued twenty-times, or oftener; it was necessary, therefore, to tax them in a different way from other notes. He supposed the same provision might be adopted here as was adopted in England. They might be allowed to be issued for a certain number of years--say three. This would remedy every kind of inconvenience arising from reissuing. As to notes now in circulation, the way to prevent inconvenience would be to fix the time after which all notes should be renewed by stamped notes. The consequence would be, that all notes would, by degrees, be returned to the bank, and no difficulty would arise from doing so. Six or nine months might be allowed for this purpose. This was the way in which all the banks in England, except the Bank of England, were subject to the stamp duty; that bank, he believed, had paid a certain sum to be excused from the tax. Perhaps the same privilege might be allowed here. Mr. NICHOLAS noticed what had fallen from the gentleman from Pennsylvania on the subject of depreciation, and showed by the regulations under which the tax would be paid, that it could not take place. Mr. RUTLEDGE thought bank notes a proper object of taxation, and had not heard one good reason why they should be exempted from the proposed duty. The arguments of his colleague (Mr. SMITH,) that bank notes now in circulation would be affected, and their currency checked, he would answer, by observing that the duty could not operate upon notes now in circulation; it was not proposed to have them called in, but to have those stamped which shall be issued after a certain day. He did not think the weight and importance which generally attach to the observations of the gentleman from Pennsylvania (Mr. SITGREAVES) attach to those now offered by him. With respect to the circulation of bank notes being embarrassed by the necessity there would be for the people at large being acquainted with the date of the law, the objection would apply to private as well as bank notes. The people throughout the country must inform themselves, and the most ignorant will inform themselves of the date of the act; and whenever a bank note or a private note shall be offered to them, they will always inquire if it was issued subsequent or previous to a certain day. The gentleman from New York (Mr. BROOKS) was certainly incorrect in saying that "bank paper was not stamped in any country whatever." In Great Britain, Mr. R. said, the paper of all private banks is stamped; that of the Bank of England has been exempted from the stamp duty, by the bank having paid the Government a sum, in gross, by way of commutation. Although the moneyed interest has always been well and largely represented in England, yet bank notes are taxed there, and the circulation of them has not been embarrassed by this duty; on the contrary, the system of banking has been wonderfully extended throughout that kingdom. In every part of it bank notes are current; every town and village has its banks; they are as universal as their churches. Mr. R. asked, where would be the propriety of taxing notes issued by fifty individuals in their individual capacity, and exempting those issued by them when they associated, called themselves a Banking Company, and issued notes to three times the amount of their capital? The measure seemed to him unwise, and he was sure it would be unpopular. He could not conceive why people who had no other property than stock, which, in many instances, yielded an interest of fifteen per cent., should not contribute to the support of Government. Mr. SWANWICK.--The greatest objection which the banks in England seemed to have to the tax, was, that it might ascertain the quantity of notes they had in circulation. In order to prevent this, the Bank of England commuted with Government for a certain sum; but the notes of all the private banks were stamped. He thought it reasonable that this kind of notes should be stamped as well as others, though he would have the tax low; for he saw no reason why merchants should pay, and bankers be excused from the duty, since great emolument was derived from these notes, by the consent of the community, and the community, in return, had a right to expect assistance from the banks. Mr. W. SMITH believed, if an original proposition had been brought forward to tax bank notes, it would have been thought a very serious thing, and they should have paused before they consented to the proposition. Gentlemen who advocated this proposition, allowed it would require many provisions to carry it into effect. What those provisions were he could not pretend to say. He thought bank notes had been too much confounded with notes of individuals, and they were quite different things. Those of individuals were mostly larger, the greatest part of bank notes were for five dollars. Notes of individuals, if not stamped, could not be received in evidence; but he did not know what must be the penalty on bank notes being issued without stamp. Besides, he said, to lay a duty upon the notes issued by the Bank of the United States would be a violation of its charter, for, by that charter, it was said, the notes of that bank should be received at the custom-house in payment of duties. It had been said a commutation might be allowed, but that would be equally contrary to the charter; besides, if such a thing were to be done, he did not know who could do it; it would not be the proper business of the PRESIDENT, and that House would have difficulty in saying what would be a proper sum to be paid for the purpose. He again feared the introduction of this principle would destroy the bill. Mr. COIT did not think it was quite so clear a thing as some gentlemen seemed to think it, that bank notes ought to be stamped. He did not believe the analogy between the bank and private notes was so strong as had been represented. If the facts were as represented, that every bank note was to be considered as producing a profit to the banker, there would be good ground for the tax; but he was of opinion this was not the case. For instance, if the bank gave their note for one hundred dollars, it was equal evidence with the note of an individual, that they had received the value of one hundred dollars. But if they went further, it would be found the analogy did not hold. The note of the individual was at a certain date, but that of the banker was on demand; and they were every day liable to be called upon for the money of which the note was the representative; so that they were obliged to keep the money, or money at least to a great amount, ready to take up their notes whenever presented. Banks could not, therefore, be considered as receiving a profit on all the notes they issued; but only upon the difference between the amount of notes issued, and the cash they are obliged to keep by them to answer their demands. The analogy, therefore, did not hold; and, if bank notes were taxed, it must be upon a different principle from that on which the notes of individuals are taxed. Mr. POTTER was in favor of the amendment, and he trusted that gentlemen who were always ready to go into every species of expense, would not flinch when the object was to raise money. He had this morning voted for a bill laying additional tax on licenses, which he believed would be found in some degree oppressive, but he did it because he knew revenue was wanted. He hoped the gentleman from South Carolina would, on this occasion, concur in the proposed tax. He doubted not unexceptionable means might be devised for collecting it; if not, it might be given up. Mr. HARPER was against the amendment, not because he was satisfied bank notes were not a proper object of taxation, but because he did not wish to embarrass the bill with a subject which they had not time to consider. Mr. SWANWICK again spoke in favor of the tax. Mr. OTIS was against the amendment; not because he thought such a tax would be improper, but from the difficulties which would attend the carrying it into effect. Besides, he said, if the notes were to revert to the bank every two or three years, it would cause a run upon them for cash, instead of renewed notes, which might be very inconvenient. Mr. VENABLE did not think the run upon the bank which the gentleman had mentioned could take place, as the notes would have to be renewed three years from the time issued, and all their notes would not be issued on one day. Mr. V. again insisted that this tax should be general; and if they had not time to make it so, it ought to be put off till they had. Not to include bankers would be to lay a tax upon the people whose complaints of its hardships could not be heard. He deprecated this as unjust. Mr. HARPER could not conceive that the great body of merchants and farmers throughout the United States were people who could not make their complaints heard, if they had them to make. The proprietors of banks, Mr. H. said, already paid taxes in a variety of shapes; many of them were merchants, and would, of course, pay the tax imposed on the notes of individuals. Mr. BROOKS was against going into a tax on bank notes at present, but denied that there would be any cause of complaint from the people on account of the taxes imposed by this bill. He wished to make a beginning with a stamp tax at present; it might not be completed these seven years. Gentlemen might as well go on and propose a tax on newspapers, which, whatever might be said against it, he believed might be laid without infringing the liberty of the press; but a thing of this kind would require a great deal of detail. Mr. CLAIBORNE was in favor of including bank notes; not to do this, he said, would be to catch _small fish_, and let the _large ones_ pass. Mr. GALLATIN said that the provisions for laying this tax would be by no means difficult. Indeed, three-fourths of the bill was copied from the British statute, and that part respecting bank notes could be as easy copied as any other part. The observations respecting the charter of the Bank of the United States, were not deserving of a reply. There was only one of two things which could be done, either to tax bank notes, or to excuse all other notes from the tax. Mr. SITGREAVES could not submit to hear that it was the intention of those who opposed this motion, to screen the moneyed interest of this country from paying a tax. He had no such views. He had no objection to tax the banks in proportion to the amount of their business; but he could not agree to its being done in this way. If gentlemen would estimate how much the stamp duty of a bank would produce to the United States, he would vote for a sum of this kind by way of commutation. Charges could rarely be made against the side of the House with whom he generally acted, for not being willing to vote for revenue; a contrary charge was more frequently made. He trusted the amendment would not be agreed to; but that if the tax were laid, it would be by way of commutation. The question was taken and carried, there being 55 votes in favor of it. The committee rose and had leave to sit again. The resolution respecting an adjournment was received from the Senate, and disagreed to. The disagreement being read, Mr. GILES moved the same resolution filled with Monday next; but Mr. WILLIAMS opposed it, and moved to adjourn. THURSDAY, June 29. _Stamp Duties._ BANK NOTES. The House went into a Committee of the Whole on the bill for imposing stamp duties, when the clause of Mr. GALLATIN yesterday proposed to the committee, on the subject of bank notes, being under consideration, Mr. OTIS supposed that at least two-thirds of the whole amount of paper issued by the banks, returned and were re-issued every year, and thus the banks must pay tax upon two-thirds of their capital in the first year after the law passed, and which, according to a rough calculation, relation being had to the different denominations of notes, amount to nearly one per cent. on their capital. The tax ought to be levied upon such new notes only as should be issued hereafter; all that were now in existence were protected by the charter, and any law relating to them would be retrospective; and as one-fifth of the whole number of notes would be renewed every year, a tax upon them would be found to bear as hard as upon other notes and bills, which seldom comprised more than the fifth part of the transactions of an individual. It ought also to be considered, that the paper issued by the bank generally became worn and dirty, and incapable of receiving a stamp, so that in less than two years the whole amount of paper must be re-issued, and the entire tax assessed in the same period. This plan would also be inconsistent with that of a commutation, which had been proposed. Mr. DAYTON (the Speaker) did not think that this proposition precluded the provision of a commutation. He was in favor of taxing bank notes, but he wished also to hold out a commutation, and such a one as should induce all the banks to embrace it; for, if this were not the case, they would not be taxed equally, as the notes of banks did not bear a just proportion to the amount of their dividends. This clause would not, therefore, preclude the commutation, but render it proper, and a clause could be brought in excusing such banks from the duty as came into the proposed plan. Mr. GALLATIN said, his ideas corresponded exactly with those of the gentleman who had just spoken. The scheme suggested by the gentleman from Massachusetts, of not taxing the notes at present in circulation, would excuse bank notes from all tax, as, according to his own account, only about one-fifth of the notes issued came in in the course of a year, so that it would be five years before a new tax could operate upon all their notes, and it was probable the bill might not pass for more than three or four. That gentleman supposed that bankers' notes ought not to be charged more than others; if this were the case, they might be reckoned to run for four or five years, while those of individuals were at six and twelve months. The note of an individual, for fifty dollars, was to pay ten cents; he calculated a bank note, therefore, for a like sum, which he supposed, upon an average, to run four years, thirty cents. With respect to the notes at present in circulation, Mr. G. said, they ought all to be called in before a certain time, and after that day no note should be negotiable which was not stamped. The gentleman from Massachusetts was not correct when he said that this tax would amount to one per cent. upon the capital employed in banks. The calculation of the amount of the tax upon a bank which he had made, would amount to $10,000 a year, whereas one per cent. upon the capital of the Bank of the United States would amount to $200,000; but he said (as he had before stated) that the notes issued by a bank were not equal to its capital, or any thing like it. He could not, indeed, say what the amount of the notes of the Bank of the United States might be which were received for duty, from one end of the United States to the other; but he knew banks in general, in large cities, did not employ more than two-fifths of their capital in this way. He knew it to be a fact with respect to a bank of the largest property in the United States, except the Bank of the United States. He thought of proposing the commutation to be one per cent. upon the amount of the dividend paid by each bank, which he supposed would be deemed a reasonable sum. Mr. OTIS explained. Mr. SEWALL thought the observation of the gentleman from Connecticut yesterday, as to the nature of bank notes, had weight. He agreed with him that they were very different from the notes of individuals, as they were always obliged to keep cash in readiness to take up their notes, while individuals, knowing exactly the time when the money for theirs would be wanted, could make use of it in the mean time. Therefore, if they taxed bank notes, they ought not to tax them in the same proportion with those of individuals at a certain date. Notes of individuals, under twenty dollars, were to be exempt from duty, while every note issued by a bank was proposed to be taxed. Every banker's note of fifty dollars was to be charged with thirty cents, while those of individuals, which might run for two or three years, were charged only with ten cents. Every three or four years they would have to pay this sum. If a fair commutation were to be made, they should first fix the tax upon just principles. Mr. NICHOLAS thought if there was no objection to the commutation, there could not reasonably be any made to the tax, because if the commutation were reasonable they would not choose to pay the tax; but, if they should choose to pay the tax, instead of the commutation, it would be evidence that the tax was too low. Mr. W. SMITH did not see the force of the argument of the gentleman last up. As the commutation was to bear some proportion to the rates of duty, it became necessary to fix the rates upon a fair basis. If the rates were fixed too high, they ought to reduce them. He did not see the propriety of selecting moneyed corporations for the purpose of laying a high duty upon them. He moved to strike out the three cents for every five dollars, and leave it a blank. Mr. DAYTON hoped this proposition would be agreed to, as by a vote upon the question in blank they would fix the principle whether or not bank notes were to be taxed, and the scale could be afterwards fixed. If there was the difference alleged between bank notes and the notes of individuals, it would be sufficiently considered in the commutation. He should not, indeed, be willing to agree to any scale without a commutation, for the reason he had before mentioned. For, said he, take the Bank of the United States and the Bank of North America, and the notes issued by them bear no sort of proportion to their respective capitals. If the tax were to be laid upon the notes issued, the Bank of the United States would pay a much larger sum than the other in duty. Mr. GALLATIN observed that the gentleman from South Carolina had said they were about to select moneyed corporations as objects on which to lay a high duty. He had made a calculation to show that this was not the case, but that what was proposed was no more than just and reasonable, and that instead of the tax being one per cent. upon their capital, it was not more than one twentieth or one twenty-fifth part of one per cent. He would state the facts, and beg gentlemen to correct him where he was mistaken. In the first place he would state the capital of all the banks of the United States at $20,000,000; the whole amount of bank notes at less than $8,000,000. He would divide these $8,000,000, one-half into notes under fifty dollars, and one-half above that sum as follows: $4,000,000 in notes under fifty dollars, which would give about eighty thousand notes, (for though they would be of different sizes they paid in the same proportion,) at thirty cents, $24,000 $2,000,000 of one hundred dollars and upwards, at fifty cents, 10,000 $2,000,000 of three hundred dollars and upwards, 4,000 ------- $38,000 Allow for mistakes, 2,000 ------- Which includes all the notes in circulation in the United States, $40,000 As to the principle of taxation itself, that bank notes of fifty dollars should pay thirty cents when notes of individuals only pay ten cents, justice requires the difference, on the same principle that notes of sixty days had been charged with only two-fifths of the duty charged upon others. Mr. G. stated the following account of a bank in Philadelphia, whose capital was $2,000,000, and to which Government owed nothing; which, he said, would apply to every other bank in the same circumstances, with little variation: To the original fund, $2,000,000 To deposits, about 900,000 To bank notes, 600,000 ---------- Total debts, $3,500,000 ---------- By notes discounted, $3,000,000[20] By cash in vault, 500,000 ---------- Total credits, $3,500,000 ---------- As banks were thus able to transact business to the amount of three millions of dollars, though their original fund was only two millions, he accounted for their sharing dividends of nine per cent. on their stock. It would be observed that the two millions capital were not touched for notes, and yet they were charged with selecting these bodies of men upon whom to lay a heavy tax. Mr. G. concluded by saying he had no prejudice against banks. He knew they were liable to abuse, but, upon the whole, he believed them to be useful. He believed the scale he had formed was correct, but should withdraw it for the present, in order to give an opportunity of trying the principle. FRIDAY, June 30. _Duties on Stamps._ The proposition of Mr. GALLATIN for admitting of a composition from the banks in lieu of the tax, came next under consideration--the blank in which was moved to be filled with one per cent.; when Mr. W. SMITH said, if the gentleman from Pennsylvania was right in his calculation yesterday, the whole amount of duties arising from the banks would be $8,000 a year, and therefore they ought not to go farther in fixing the composition, whereas one per cent., according to the same statement, will produce more than double that sum; for, if the whole capital of the banks in the United States be twenty millions, and their average dividend ten per cent., that will produce two millions, which at one per cent. will give $20,000. He therefore moved, in order to bring the matter nearer to a fair equivalent, to strike out one per cent. and insert one-half per cent. Mr. NICHOLAS said what the duty would produce was uncertain; they could with more correctness say, that one per cent. was a reasonable composition on the dividends, than what might be produced by the duty. He knew of no tax laid upon property that could be made for less than five per cent. to clear the expense of making it. Mr. W. SMITH thought they should first fix the rates to be paid on bank notes before they determined upon the composition. Mr. GALLATIN said, when the rates were before under consideration, the gentleman from South Carolina objected to it, because, if fixed too high, he said it would influence the composition. He therefore moved to have it struck out; but now, when a composition was under consideration, he turns round and says it would be better first to fix the rates. He thought one per cent. a reasonable composition, and that it would be best first to fix that. Mr. SMITH denied that he wanted first to fix the composition; it was his wish to strike out the rates, to reduce them, that he moved to leave the sum blank. The question was put and carried, there being 54 votes in favor of it. Mr. GALLATIN then renewed his motion for fixing the scale of duty to be paid on bank notes. It was, on notes not exceeding fifty dollars, three cents for every five dollars; those not exceeding one hundred dollars, fifty cents; those above one hundred dollars, and not exceeding five hundred dollars, one dollar; for all above five hundred dollars, two dollars. Mr. DAYTON said there were many notes under five dollars, for which there was no provision. Mr. GALLATIN thought "the rate of" would have included the small ones; and, to dissipate every doubt on the subject, he moved to replace "three cents for every five dollars," with "three-fifths of a cent for every dollar." Carried, 39 to 24.[21] MONDAY, July 3. The bill for laying a stamp duty was read a third time, and the blanks filled up, viz: that for fixing the time of the act taking effect, with the 31st day of December next; the fine and imprisonment for counterfeiting stamps, &c., with $1,000 and seven years' imprisonment; and the time for which the duration of the act was limited, with five years. The yeas and nays being taken on the passage of the bill, were--yeas 47, nays 41, as follows: YEAS.--John Allen, James A. Bayard, David Brooks, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, James Davenport, John Dennis, Geo. Dent, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, James Gillespie, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, Samuel Lyman, James Machir, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Elisha R. Potter, John Read, John Rutledge, jun., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, William Smith, (of Charleston,) George Thatcher, Richard Thomas, Mark Thomson, John E. Van Allen, Peleg Wadsworth, and John Williams. NAYS.--George Baer, jr., Abraham Baldwin, David Bard, Lemuel Benton, Thos. Blount, Nathan Bryan, Dempsey Burges, Samuel J. Cabell, Christopher G. Champlin, Thomas Claiborne, Matthew Clay, John Clopton, Thomas T. Davis, John Dawson, Lucas Elmendorph, John Fowler, Albert Gallatin, Jonathan N. Havens, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, John Nicholas, Josiah Parker, Thompson J. Skinner, William Smith, (of Pinckney District,) Richard Sprigg, jr., Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. TUESDAY, July 4. _Duty on Salt._ Mr. ALLEN called up the resolution he yesterday laid upon the table, for laying an additional duty on salt. Mr. GALLATIN moved to postpone the consideration of this resolution until the second Monday in November. Some debate took place on this question; and, when it came to be taken, the House was equally divided, there being 43 votes for the postponement, and 43 against it. The SPEAKER decided against the postponement, and the resolution was referred to a Committee of the Whole immediately. The House accordingly resolved itself into a Committee of the Whole on this resolution; when Mr. ALLEN moved the blank cents per bushel be filled with twelve. Mr. SWANWICK wished the sum to be seven. Mr. ALLEN consented to make it eight. Mr. SITGREAVES hoped it would be twelve. The question was first taken upon twelve, and negatived, there being only 30 votes for it. It was next taken upon eight, and carried, 47 to 42, and then upon the resolution as amended, and carried by the same numbers. The committee rose, and the House took up the resolution. After a few words from Mr. LYON against the tax, and from Mr. WILLIAMS in favor of it, Mr. W. SMITH went at considerable length into a defence of the measure, in the course of which, he said, they had already agreed upon appropriations to the amount of $700,000 or $800,000, and were not certain of any revenue to meet the expenditure. The license act, he believed, might produce from $50,000 to $60,000, and the stamp act from $100,000 to $150,000, if they should be passed; but he considered this as doubtful. But if these laws were passed, this tax on salt was necessary to keep up the equilibrium of taxation;[22] for the stamp act would almost exclusively fall upon commerce and large cities; this would principally be felt by the agricultural part of the Union; and, if it were not agreed to, they must have a land tax. Mr. SHEPARD said, no tax would operate so equally as a salt tax, as every citizen must make use of it in a smaller or larger quantity. Mr. GALLATIN opposed this tax on the same ground which he heretofore opposed it, as oppressive to certain parts of the Union, and no way affecting others, and therefore wholly unequal, and particularly as it bore heavy on the poorer classes of society. He was against it also, because it was not proposed that the amount of this tax should go towards a reduction of the public debt, but merely to encourage expense in the Government; for he believed if they filled the Treasury with money, means would be found to expend it. Indeed, if the Treasury had not been at present in rather a low state, he believed they should have gone into most of the expensive measures proposed to them this session. He allowed the tax would be productive, as a tax upon bread, air, or any necessary of life, must be productive. If this tax, however, were to be agreed to, he should wish to make an amendment to the present proposition. At present the drawback allowed to the New England States, on account of salt used in the fisheries, amounted to about $90,000 a year, though by the statements it appeared there should only have been allowed $50,000. To rectify this, he proposed the following proviso to be added to the resolution, viz: _Provided_, That the allowance now given upon vessels employed in the fisheries, shall not be increased. This amendment was opposed by Messrs. HARPER, SEWALL, DANA, and KITTERA, on the ground of its being an unfair way of introducing the proposition, as no one expected it; they were not prepared to meet it; the correctness of the statement was doubted; and, if it were correct, it was said, the proper way of doing the business would not be to pass the present law without a drawback, but to reduce the former drawback and make it less on this occasion. The motion was supported by the mover, and Messrs. VENABLE and LIVINGSTON; but, after some discussion, Mr. GALLATIN withdrew it, in order to give gentlemen time to make themselves acquainted with the fact he had stated; but he expressed his intention of renewing the proposition when the bill came in. The question then returned upon the original resolution; when Mr. HARPER went at length into a defence of the measure, (in the course of which he charged Mr. GALLATIN with being mistaken $12,000 as to the amount of the drawback allowed,) and insisted that it was a fair and proper tax, and that so small an advance upon the present duty could not operate oppressively upon any part of the community. Mr. NICHOLAS followed in opposition. He dwelt considerably on the unjust and unequal manner in which this tax would operate. He said he did not view this question as deciding merely whether an additional tax of eight cents should be laid upon salt; but whether that necessary of life should be called upon for every thing Government should want. He was in favor of a direct tax, which should fall equally, though it might, in the origin, be attended with some considerable expense; but, if they went on raising partial sums in this way by indirect means, the expense of instituting a direct tax would always be an obstacle, and indirect taxes would always be had recourse to. He did not believe it to be absolutely necessary to provide a revenue this session, as he believed money might as well be borrowed without as with additional revenue, and at the next session, the subject could be fully gone into. Mr. LYON spoke of the discontent which had always been shown in the part of the country from whence he came, which, he said, would be greatly increased by this addition. It was not only a duty of eight cents, every cent would be made four before the salt reached them. There was no kind of tax which his constituents would not sooner bear. It had been said that a land tax would cost twenty-five per cent. to collect it; but what was twenty-five compared with three hundred per cent.? Nor did he believe this tax would prevent a land tax. He believed they should go on taxing the people until they would be greatly dissatisfied. He would much rather a tax of eight cents was laid upon tea, which would produce an equal sum. The question was taken by yeas and nays, and decided in the affirmative--47 to 41. WEDNESDAY, July 5. _Duty on Salt._ The House went into Committee of the Whole on the bill for laying an additional duty on salt; when Mr. GALLATIN moved to strike out all that related to the allowing of a drawback to vessels employed in the fishing trade, on the ground that he yesterday stated, viz: that the allowance at present made was too large by $40,000 a year, taking the year 1794 for his data; but it appeared that in the year 1795 there was a deficiency in that trade, owing principally, it was supposed, to the great demand for seamen in the merchant service. He, therefore, would take the calculation of the gentleman from South Carolina, (Mr. HARPER,) made yesterday, and, instead of calling the amount of drawback allowed $90,000, he would state it to be $78,000; and even then, he said, the drawback at present allowed would exceed by two thousand dollars the drawback to which they would be entitled, if the present duty took place. He spoke generally against the tax as oppressive to the back country; but if the gentleman from Massachusetts, and others, were determined to increase the tax, he should wish their part of the country to pay their share of it. This motion was supported by Messrs. VENABLE, NICHOLAS, CLAY, MCDOWELL, and MACON. It was opposed by Messrs. SEWALL, OTIS, HARPER, COIT, BROOKS, KITTERA, J. WILLIAMS, and DAYTON. The calculation of the quantity of salt estimated to be necessary to be used for a quintal of fish, (one bushel,) was said to be stated too low; that the sum allowed was not only meant as a drawback of the duty, but also as a bounty on the fishing trade--as being a nursery for seamen, and serving as a kind of naval militia for the United States. If it should appear, however, that the present allowance was too great, (which, by some gentlemen in favor of this motion, which was in blank, seemed to be acknowledged,) a less allowance might be made in this bill; but they could not consent to the bill passing without a drawback. The question for striking out the clause was taken, and negatived--49 to 41. Mr. COIT moved to fill the blank with 50 per cent., instead of 66-2/3, which was the drawback allowed by the present law. Mr. HARTLEY thought this sum too high. Mr. WILLIAMS moved 33-1/3 per cent. which was carried without a division. Mr. NICHOLAS moved a limitation clause, to continue the act in force for two years, and from thence to the end of the next session of Congress. This motion was carried--42 to 39. The committee rose, and the House agreed to the amendments. The yeas and nays were called upon the limitation clause, and were taken, and stood--yeas 47, nays 43. The bill was ordered to be engrossed for a third reading this day; and before the House rose, it received it, and passed. The yeas and nays on its passage stood 45 to 40, as follows: YEAS.--John Allen, James A. Bayard, David Brooks, Stephen Bullock, John Chapman, Christopher G. Champlin, Joshua Coit, William Craik, Samuel W. Dana, James Davenport, John Dennis, George Dent, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, William Matthews, Lewis R. Morris, Harrison G. Otis, Elisha R. Potter, John Read, John Rutledge, jun., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, William Smith, (of Charleston,) John Swanwick, George Thatcher, Mark Thompson, John E. Van Allen, Peleg Wadsworth, and John Williams. NAYS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, Thomas T. Davis, John Dawson, Lucas Elmendorph, John Fowler, Albert Gallatin, James Gillespie, Wm. B. Grove, John A. Hanna, Jonathan N. Havens, David Holmes, Walter Jones, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Daniel Morgan, Anthony New, John Nicholas, Thompson J. Skinner, William Smith, (of Pinckney District,) Richard Sprigg, jun., Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Joseph B. Varnum, and Robert Williams. SATURDAY, July 8. _Laws in the German Language._ Mr. HOLMES said that he thought it necessary, in order to enforce a general compliance with the laws of the United States, that they should be printed in the German language, as well as in the English, since there were very many inhabitants in this country who could read no other. He therefore proposed a resolution to the following effect: "_Resolved by the Senate and House of Representatives of the United States_, That a number of copies of the laws of this session, not exceeding eight thousand copies, shall be printed in the German language, and distributed by the Secretary of State amongst the Executives of the several States, for the information of the German inhabitants of each State respectively." Mr. LYON thought it would be proper to pass a resolution of this kind. He did not know what number might be necessary. He also thought that some measures should be taken for a general publication of their laws in the English language; at present, it was merely by chance if the people in his district came to a knowledge of them. He thought all laws of general import should be inserted in every newspaper throughout the Union. Mr. COIT said if they were to promulge their laws in the German language, it would be necessary that they should all become critically acquainted with it, for if they were to authorize any translation, great mischiefs might arise from its not being correct. Mr. GALLATIN said that the weight of the objection urged by the gentleman last up, had always been thought sufficient in the Legislature of Pennsylvania, in which State there was a greater proportion of Germans than in any other. There was also another objection to the measure. If it were to be passed, it must be accompanied with an appropriation law, which the advanced state of the session would not admit. The resolution was put and negatived. MONDAY, July 10. On motion of Mr. DENT, a committee was appointed to wait upon the PRESIDENT OF THE UNITED STATES, in conjunction with a like committee from the Senate, to inform him the two Houses were about to adjourn. The committee waited upon the PRESIDENT accordingly, and reported his acquiescence, and his good wishes for the safe arrival of the members at their several homes. On motion of Mr. SITGREAVES, the resolution entered into some time ago, calling upon the PRESIDENT for an account of the quantity of arms in the possession of the United States, and at what place they were lodged, was suspended. Mr. S. said, he wished to make a report upon a subject which would require the galleries to be cleared. He, therefore, moved that they be cleared, and the doors were closed for the remainder of the sitting, at the conclusion of which the House adjourned till the second Monday in November next.[23] FIFTH CONGRESS.--SECOND SESSION. BEGUN AT THE CITY OF PHILADELPHIA, NOVEMBER 13, 1797. PROCEEDINGS IN THE SENATE. MONDAY, November 13, 1797. The second session of the fifth Congress of the United States commenced this day, at the city of Philadelphia, conformably to law; and the Senate assembled accordingly in their Chamber. PRESENT: SAMUEL LIVERMORE, from New Hampshire. THEODORE FOSTER, from Rhode Island. URIAH TRACY, from Connecticut. ELIJAH PAINE, from Vermont. WILLIAM BINGHAM, from Pennsylvania. HUMPHREY MARSHALL, from Kentucky. ALEXANDER MARTIN and TIMOTHY BLOODWORTH, from North Carolina. JACOB READ, from South Carolina. The number of members present not being sufficient to constitute a quorum, the Senate adjourned to 11 o'clock to-morrow morning. TUESDAY, November 14. JOHN LAURANCE, from the State of New York, and HENRY LATIMER, from the State of Delaware, severally attended. The number of members present not being sufficient to constitute a quorum, the Senate adjourned. WEDNESDAY, November 15. BENJAMIN GOODHUE, from the State of Massachusetts, attended. The number of members present not being sufficient to constitute a quorum, the Senate adjourned. THURSDAY, November 16. The Senate assembled, and the number of members present not being sufficient to constitute a quorum, the Senate adjourned. FRIDAY, November 17. JOHN LANGDON, from the State of New Hampshire, attended. The number of members present not being sufficient to constitute a quorum, the Senate adjourned. SATURDAY, November 18. No quorum being present, the Senate adjourned. MONDAY, November 20. JAMES GUNN, from the State of Georgia, attended. No quorum being present, adjourned. TUESDAY, November 21. RAY GREENE, appointed a Senator by the State of Rhode Island, in the place of WILLIAM BRADFORD, resigned, produced his credentials. RICHARD STOCKTON, from the State of New Jersey, attended. No quorum being present, the Senate adjourned. WEDNESDAY, November 22. The VICE PRESIDENT being absent, the Senate proceeded to the choice of a President _pro tempore_, as the constitution provides; and JACOB READ was duly elected. JOSEPH ANDERSON, appointed a Senator by the State of Tennessee, for the remainder of the term which the late Senator WILLIAM BLOUNT had drawn, and was entitled to have served, produced his credentials; which were read. NATHANIEL CHIPMAN, appointed a Senator by the State of Vermont, in the place of ISAAC TICHENOR, elected Governor, produced his credentials; which were read. The credentials of RAY GREENE were read. ANDREW JACKSON, appointed a Senator by the State of Tennessee, produced his credentials; which were read. The oath required by law was administered by the PRESIDENT, to Messrs. ANDERSON, CHIPMAN, GREENE, and JACKSON, they having severally taken their seats in the Senate. A message from the House of Representatives informed the Senate, that a quorum of the House is assembled, and ready to proceed to business. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled, and are ready to proceed to business; and that, in the absence of the VICE-PRESIDENT, they have elected JACOB READ, President of the Senate _pro tempore_. _Resolved_, That each Senator be supplied, during the present session, with copies of three such newspapers, printed in any of the States, as he may choose, provided that the same are furnished at the rate of the usual annual charge for such papers. A message from the House of Representatives informed the Senate, that the House have appointed a joint committee on their part, together with such committee as the Senate may appoint, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. _Resolved_, That the Senate do concur in the appointment of a joint committee, and that Messrs. BINGHAM and TRACY be the committee on the part of the Senate. _Resolved_, That two Chaplains be appointed to Congress for the present session, one by each House, who shall interchange weekly; and that the Right Rev. Bishop WHITE be Chaplain on the part of the Senate. Mr. BINGHAM reported, from the joint committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and had notified him that a quorum of the two Houses is assembled; and that the PRESIDENT OF THE UNITED STATES acquainted the committee that he would meet the two Houses, in the Representatives' Chamber, at 12 o'clock to-morrow. THURSDAY, November 23. A message from the House of Representatives informed the Senate that the House are now ready to meet the Senate in the Chamber of that House, to receive such communications as the PRESIDENT OF THE UNITED STATES shall please to make them. The Senate then repaired to the Chamber of the House of Representatives for the purpose above expressed. The Senate returned to their own Chamber, and a copy of the Speech of the PRESIDENT OF THE UNITED STATES, this day addressed to both Houses of Congress, was read: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: I was for some time apprehensive that it would be necessary, on account of the contagious sickness which afflicted the city of Philadelphia, to convene the National Legislature at some other place. This measure it was desirable to avoid, because it would occasion much public inconvenience, and a considerable public expense, and add to the calamities of the inhabitants of this city, whose sufferings must have excited the sympathy of all their fellow-citizens. Therefore, after taking measures to ascertain the state and decline of the sickness, I postponed my determination, having hopes, now happily realized, that, without hazard to the lives or health of the members, Congress might assemble at this place, where it was next by law to meet. I submit, however, to your consideration, whether a power to postpone the meeting of Congress, without passing the time fixed by the constitution, upon such occasions, would not be a useful amendment to the law of one thousand seven hundred and ninety-four. Although I cannot yet congratulate you on the re-establishment of peace in Europe, and the restoration of security to the persons and properties of our citizens from injustice and violence at sea, we have nevertheless abundant cause of gratitude to the Source of Benevolence and Influence, for interior tranquillity and personal security, for propitious seasons, prosperous agriculture, productive fisheries, and general improvements; and, above all, for a rational spirit of civil and religious liberty, and a calm, but steady determination to support our sovereignty, as well as our moral and religious principles, against all open and secret attacks. Our Envoys Extraordinary to the French Republic embarked, one in July, the other early in August, to join their colleague in Holland.[24] I have received intelligence of the arrival of both of them in Holland, from whence they all proceeded on their journey to Paris, within a few days of the nineteenth of September. Whatever may be the result of this mission, I trust that nothing will have been omitted on my part, to conduct the negotiation to a successful conclusion, on such equitable terms as may be compatible with the safety, honor, and interests of the United States. Nothing, in the mean time, will contribute so much to the preservation of peace, and the attainment of justice, as a manifestation of that energy and unanimity of which, on many former occasions, the people of the United States have given such memorable proofs, and the exertion of those resources for national defence, which a beneficent Providence has kindly placed within their power. It may be confidently asserted, that nothing has occurred since the adjournment of Congress, which renders inexpedient those precautionary measures recommended by me to the consideration of the two Houses, at the opening of your late extraordinary session. If that system was then prudent, it is more so now, as increasing depredations strengthen the reasons for its adoption. Indeed, whatever may be the issue of the negotiation with France, and whether the war in Europe is or is not to continue, I hold it most certain that perfect tranquillity and order will not soon be obtained. The state of society has so long been disturbed; the sense of moral and religious obligations so much weakened; public faith and national honor have been so impaired; respect to treaties has been so diminished, and the law of nations has lost so much of its force; while pride, ambition, avarice, and violence, have been so long unrestrained, there remains no reasonable ground on which to raise an expectation, that a commerce, without protection or defence, will not be plundered. The commerce of the United States is essential, if not to their existence, at least to their comfort, their growth, prosperity, and happiness. The genius, character, and habits of the people are highly commercial; their cities have been founded, and exist, upon commerce; our agriculture, fisheries, arts, and manufactures, are connected with and depend upon it; in short, commerce has made this country what it is, and it cannot be destroyed or neglected without involving the people in poverty and distress; great numbers are directly and solely supported by navigation--the faith of society is pledged for the preservation of the rights of commercial, and seafaring, no less than of the other citizens. Under this view of our affairs, I should hold myself guilty of a neglect of duty, if I forbore to recommend that we should make every exertion to protect our commerce, and to place our country in a suitable posture of defence, as the only sure means of preserving both. I have entertained an expectation, that it would have been in my power, at the opening of this session, to have communicated to you the agreeable information of the due execution of our treaty with His Catholic Majesty, respecting the withdrawing of his troops from our territory, and the demarkation of the line of limits; but by the latest authentic intelligence, Spanish garrisons were still continued within the limits of our country, and the running of the boundary line had not been commenced. These circumstances are the more to be regretted, as they cannot fail to affect the Indians in a manner injurious to the United States; still, however, indulging the hope that the answers which have been given, will remove the objections offered by the Spanish officers to the immediate execution of the treaty, I have judged it proper that we should continue in readiness to receive the posts, and to run the line of limits. Further information on this subject will be communicated in the course of the session. In connection with the unpleasant state of things on our western frontier, it is proper for me to mention the attempts of foreign agents to alienate the affections of the Indian nations, and to excite them to actual hostilities against the United States; great activity has been exerted by these persons, who have insinuated themselves among the Indian tribes, residing within the territory of the United States, to influence them, to transfer their affections and force to a foreign nation, to form them into a confederacy, and prepare them for war, against the United States. Although measures have been taken to counteract these infractions of our rights, to prevent Indian hostilities, and to preserve their attachment to the United States, it is my duty to observe, that, to give a better effect to these measures, and to obviate the consequences of a repetition of such practices, a law, providing adequate punishment for such offences, may be necessary. The Commissioners appointed under the fifth article of the Treaty of Amity, Commerce, and Navigation, between the United States and Great Britain, to ascertain the river, which was truly intended, under the name of the St. Croix, mentioned in the Treaty of Peace, met at Passamaquoddy Bay in October, 1796, and viewed the mouths of the rivers in question, and the adjacent shores and islands; and being of opinion, that actual surveys of both rivers to their sources, were necessary, gave the agents of the two nations instructions for that purpose, and adjourned to meet at Boston in August; they met; but the surveys, requiring more time than had been supposed, and not being then completed, the Commissioners again adjourned to meet at Providence, in the State of Rhode Island, in June next, when we may expect a final examination and decision. The Commissioners appointed in pursuance of the sixth article of the treaty, met at Philadelphia in May last, to examine the claims of British subjects, for debts contracted before the peace, and still remaining due to them, from citizens or inhabitants of the United States. Various causes have hitherto prevented any determinations; but the business is now resumed, and doubtless will be prosecuted without interruption. Several decisions on the claims of the citizens of the United States, for losses, and damages, sustained by reason of irregular and illegal captures, or condemnations, of their vessels or other property, have been made by the Commissioners in London, conformably to the seventh article of the treaty; the sums awarded by the Commissioners have been paid by the British Government; a considerable number of other claims, where costs and damages, and not captured property, were the only objects in question, have been decided by arbitration, and the sums awarded to the citizens of the United States have also been paid. The Commissioners appointed agreeably to the 21st article of our Treaty with Spain, met at Philadelphia in the summer past, to examine and decide on the claims of our citizens for losses they have sustained in consequence of their vessels and cargoes having been taken by the subjects of His Catholic Majesty, during the late war between Spain and France; their sittings have been interrupted, but are now resumed. The United States being obligated to make compensation for the losses and damages sustained by British subjects, upon the award of the Commissioners acting under the sixth article of the Treaty with Great Britain, and for the losses and damages sustained by British subjects, by reason of the capture of their vessels and merchandise, taken within the limits and jurisdiction of the United States, and brought into their ports, or taken by vessels originally armed in ports of the United States, upon the awards of the Commissioners acting under the seventh article of the same treaty, it is necessary that provision be made for fulfilling these obligations. The numerous captures of American vessels by cruisers of the French Republic, and of some by those of Spain, have occasioned considerable expenses, in making and supporting the claims of our citizens before their tribunals. The sums required for this purpose have, in divers instances, been disbursed by the Consuls of the United States; by means of the same captures, great numbers of our seamen have been thrown ashore in foreign countries, destitute of all means of subsistence, and the sick, in particular, have been exposed to grievous suffering. The Consuls have, in these cases also, advanced moneys for their relief; for these advances they reasonably expect reimbursements from the United States. The Consular act relative to seamen requires revision and amendment; the provisions for their support in foreign countries, and for their return, are found to be inadequate, and ineffectual. Another provision seems necessary to be added to the Consular act; some foreign vessels have been discovered sailing under the flag of the United States, and with forged papers. It seldom happens that the Consuls can detect this deception, because they have no authority to demand an inspection of the registers and sea letters. _Gentlemen of the House of Representatives_: It is my duty to recommend to your serious consideration those objects which, by the constitution, are placed particularly within your sphere--the national debt and taxes. Since the decay of the feudal system, by which the public defence was provided for, chiefly at the expense of individuals, a system of loans has been introduced. And as no nation can raise, within the year, by taxes, sufficient sums for its defence, and military operations in time of war, the sums loaned and debts contracted have necessarily become the subjects of what have been called funding systems. The consequences arising from the continued accumulation of public debts in other countries, ought to admonish us to be careful to prevent their growth in our own. The national defence must be provided for as well as the support of Government; but both should be accomplished, as much as possible, by immediate taxes, and as little as possible by loans. The estimates for the services for the ensuing year will, by my direction, be laid before you. _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: We are met together at a most interesting period; the situations of the principal powers of Europe are singular and portentous: connected with some by treaties and with all by commerce, no important event there can be indifferent to us; such circumstances call with peculiar importunity, not less for a disposition to unite in all those measures on which the honor, safety, and prosperity of our country depend, than for all the exertions of wisdom and firmness. In all such measures you may rely on my zealous and hearty concurrence. JOHN ADAMS. UNITED STATES, _November_ 23, 1797. _Ordered_, That Messrs. STOCKTON, LAURANCE, and LIVERMORE, be a committee to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech, this day, to both Houses of Congress; and that the Speech be printed for the use of the Senate. FRIDAY, November 24. A message from the House of Representatives informed the Senate, that the House have agreed to so much of the resolution of the Senate, of the 22d instant, relative to the appointment of Chaplains, as is contained in the words following, to wit: "_Resolved_, That two Chaplains be appointed to Congress for the present session, one by each House, who shall interchange weekly." "The House have proceeded, by ballot, to the appointment of a Chaplain on their part; and, upon examining the ballots, a majority of the votes of the whole House was found in favor of the Rev. ASHBEL GREEN." SATURDAY, November 25. Mr. STOCKTON, from the committee, reported the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress, at the opening of the session; which was read. On motion, that a number of copies be printed, under an injunction that no more should be struck off than may be necessary for the use of the Senate, it passed in the negative. _Ordered_, That the Secretary furnish such Senators as request it, with copies of this report. MONDAY, November 27. HENRY TAZEWELL, from the State of Virginia, attended. The Senate resumed the consideration of the report of the committee, of the draft of an Address in answer to the Speech of the PRESIDENT OF THE UNITED STATES, to both Houses of Congress, at the opening of the session; which, being read in paragraphs, and amended, was adopted, as follows: _To the President of the United States_: SIR: The communications you thought proper to make in your Speech to both Houses of Congress on the opening of their present session, afford additional proofs of the attention, integrity, and firmness, which have always marked your official character. We cannot but approve of the measures you had taken to ascertain the state and decline of the contagious sickness which has so lately afflicted the city of Philadelphia, and the pleasing circumstance that Congress is now assembled at that place, without hazard to the health of its members, evinces the propriety of your having postponed a determination to convene the National Legislature at another place. We shall take into consideration the law of 1794, on this subject, and will readily concur in any amendment which may be deemed expedient. It would have given us much pleasure to have received your congratulations on the re-establishment of peace in Europe, and the restoration of security to the persons and property of our citizens from injustice and violence at sea. But, though these events, so desirable to our country and the world, have not taken place, yet we have abundant cause of gratitude to the Great Disposer of human events for interior tranquillity and personal security, for propitious seasons, prosperous agriculture, productive fisheries, and general improvement; and, above all, for a rational spirit of civil and religious liberty, and a calm, but steady determination to support our sovereignty against all open and secret attacks. We learn, with satisfaction, that our Envoys Extraordinary to the French Republic had safely arrived in Europe, and were proceeding to the scene of negotiation; and, whatever may be the result of the mission, we are perfectly satisfied that nothing on your part has been omitted, which could, in any way, conduce to a successful conclusion of the negotiation, upon terms compatible with the safety, honor, and interest, of the United States; and we are fully convinced that, in the mean time, a manifestation of that unanimity and energy of which the people of the United States have given such memorable proofs, and a proper exertion of those resources of national defence, which we possess, will essentially contribute to the preservation of peace and the attainment of justice. We think, sir, with you, that the commerce of the United States is essential to the growth, comfort, and prosperity of our country; and that the faith of society is pledged for the preservation of the rights of commercial and seafaring, no less than of other citizens. And even if our negotiation with France should terminate favorably, and the war in Europe cease, yet the state of society, which unhappily prevails in so great a portion of the world, and the experience of past times, under better circumstances, unite in warning us that a commerce so extensive, and which holds out so many temptations to lawless plunderers, can never be safe without protection; and we hold ourselves obliged, by every tie of duty which binds us to our constituents, to promote and concur in such measures of marine defence, as may convince our merchants and seamen that their rights are not sacrificed, nor their injuries forgotten. We regret, that, notwithstanding the clear and explicit terms of the treaty between the United States and His Catholic Majesty, the Spanish garrisons are not yet withdrawn from our territory, nor the running of the boundary line commenced. The United States have been faithful in the performance of their obligations to Spain, and had reason to expect a compliance equally prompt on the part of that power. We still, however, indulge the hope that the convincing answers, which have been given to the objections stated by the Spanish officers, to the immediate execution of the treaty, will have their proper effect; and that this treaty, so mutually beneficial to the contracting parties, will be finally observed with good faith. We therefore entirely approve of your determination to continue in readiness to receive the posts, and to run the line of partition between our territory and that of the King of Spain. Attempts to alienate the affections of the Indians; to form them into a confederacy, and to excite them to actual hostility against the United States, whether made by foreign agents, or by others, are so injurious to our citizens at large, and so inhuman with respect to our citizens inhabiting the adjacent territory, as to deserve the most exemplary punishment; and we will cheerfully afford our aid in framing a law, which may prescribe a punishment adequate to the commission of crimes so heinous. The several objects you have pointed out to the attention of the Legislature, whether they regard our internal or external relations, shall receive from us that consideration which they merit; and we will readily concur in all such measures as may be necessary, either to enable us to fulfil our engagements at home, or to cause ourselves to be respected abroad. And, at this portentous period, when the powers of Europe, with whom we are connected by treaty or commerce, are in so critical a situation, and when the conduct of some of those powers towards the United States is so hostile and menacing, the several branches of the Government are, in our opinion, called upon, with peculiar importunity, to unite, and, by union, not only to devise and carry those measures on which the safety and prosperity of our country depend, but also to undeceive those nations who, regarding us as a weak and divided people, have pursued systems of aggression inconsistent with a state of peace between independent nations. And, sir we beg leave to assure you, that we derive a singular consolation from the reflection that, at such a time, the Executive part of our Government has been committed to your hands, for, in your integrity, talents, and firmness, we place the most entire confidence. JACOB READ, _President of the Senate pro tempore_. _Ordered_, That the committee who prepared the Address wait on the PRESIDENT OF THE UNITED STATES and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. On motion, _Ordered_, That Messrs. TRACY, BINGHAM, and GREENE, be a committee, to inquire what business remained unfinished at the close of the last session of Congress, which, in their opinion, is proper for the Senate to take into consideration the present session, and, also, what laws will expire before the next session of Congress, and report thereon to the Senate. TUESDAY, November 28. Mr. STOCKTON reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he would receive the Address of the Senate this day at 12 o'clock, at his own house. The Senate accordingly waited on the PRESIDENT OF THE UNITED STATES, and the PRESIDENT _pro tempore_, in their name, presented the Address agreed to yesterday. To which the PRESIDENT made the following Reply: _Gentlemen of the Senate_: I thank you for this Address. When, after the most laborious investigation, and serious reflection, without partial considerations, or personal motives, measures have been adopted or recommended, I can receive no higher testimony of their rectitude, than the approbation of an assembly, so independent, patriotic, and enlightened, as the Senate of the United States. Nothing has afforded me more entire satisfaction, than the coincidence of your judgment with mine, in the opinion of the essential importance of our commerce, and the absolute necessity of a maritime defence. What is it, that has drawn to Europe the superfluous riches of the three other quarters of the globe, but a marine? What is it that has drained the wealth of Europe itself into the coffers of two or three of its principal commercial powers, but a marine? The world has furnished no example of a flourishing commerce, without a maritime protection; and a moderate knowledge of man and his history will convince any one, that no such prodigy ever can arise. A mercantile marine and a military marine must grow up together; one cannot long exist without the other. JOHN ADAMS. UNITED STATES, _November_ 28, 1797. The Senate returned to their own Chamber, and adjourned. WEDNESDAY, November 29. The PRESIDENT laid before the Senate the memorial and address of the people called Quakers, from their yearly meeting, held in Philadelphia, in the year 1797, requesting the attention of Congress to the oppressed state of the African race, and the general prevalence of vice and immorality; and the same was read and ordered to lie on the table. THURSDAY, November 30. _Ordered_, That the memorial and address of the people called Quakers, presented yesterday, be withdrawn. FRIDAY, December 1. JAMES HILLHOUSE, from the State of Connecticut, attended. MONDAY, December 11. THEODORE SEDGWICK, from the State of Massachusetts, attended. WEDNESDAY, December 13. THOMAS JEFFERSON, Vice President of the United States and President of the Senate, attended. FRIDAY, December 22. JOHN E. HOWARD, from the State of Maryland, attended. THURSDAY, December 28. JOHN BROWN, from the State of Kentucky, attended. FRIDAY, December 29. STEPHENS THOMPSON MASON, from the State of Virginia, attended. MONDAY, January 8, 1798. JAMES ROSS, from the State of Pennsylvania, attended. THURSDAY, January 11. JAMES LLOYD, appointed a Senator by the State of Maryland, in the place of John Henry, elected Governor of said State, produced his credentials; and, the oath required by law being administered, he took his seat in the Senate. WEDNESDAY, January 17. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: The situation of affairs between the United States and the Cherokee Indians having evinced the expediency of a treaty with that nation, for the promotion of justice to them, as well as of the interests and convenience of our citizens, I have nominated, and, by and with the advice and consent of the Senate, appointed Commissioners to hold conferences, and conclude a treaty, as early as the season of the year and the convenience of the parties will admit. As we know very well, by experience, such negotiations cannot be carried on without considerable expenses, I recommend to your consideration the propriety of making an appropriation, at this time, for defraying such as may be necessary for holding and concluding a treaty. That you may form your judgments with greater facility, I shall direct the proper officer to lay before you an estimate of such articles and expenses as may be thought indispensable. JOHN ADAMS. UNITED STATES, _January_ 17, 1798. MONDAY, January 22. JOSIAH TATTNALL, from the State of Georgia, attended. FRIDAY, February 2. JOHN SLOSS HOBART, appointed a Senator by the State of New York, in the place of Philip Schuyler, resigned, produced his credentials, and, the oath required by law being administered, he took his seat in the Senate. MONDAY, February 5. _French Outrage._ The following Message was received from the PRESIDENT OF THE UNITED STATES; which was read: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: I have received a letter from his Excellency Charles Pinckney, Esq., Governor of the State of South Carolina, dated the 22d October, 1797, enclosing a number of depositions and witnesses to several captures and outrages committed within and near the limits of the United States, by a French privateer belonging to Cape Francois, or Monte Christo, called the Vertitude or Fortitude, and commanded by a person of the name of Jordan or Jourdain, and particularly upon an English merchant ship named the Oracabissa, which he first plundered and then burned, with the rest of her cargo, of great value, within the territory of the United States, in the harbor of Charleston, on the 17th of October last. Copies of which letter and depositions, and also of several other depositions relative to the same subject, received from the Collector of Charleston, are herewith communicated. Whenever the channel of diplomatical communication between the United States and France shall be opened, I shall demand satisfaction for the insult and reparation for the injury. I have transmitted these papers to Congress, not so much for the purpose of communicating an account of so daring a violation of the territory of the United States, as to show the propriety and necessity of enabling the Executive authority of Government to take measures for protecting the citizens of the United States and such foreigners as have a right to enjoy their peace, and the protection of their laws, within their limits, in that as well as some other harbors which are equally exposed. JOHN ADAMS. UNITED STATES, _February_ 5, 1798. _Ordered_, That the Message and papers referred to lie for consideration. MONDAY, February 19. JOSHUA CLAYTON, appointed a Senator by the Legislature of the State of Delaware, in the place of John Vining, resigned, produced his credentials, which were read, and, the oath required by law being administered, he took his seat in the Senate. MONDAY, March 5. _Affairs with France._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: The first despatches from our Envoys Extraordinary, since their arrival at Paris, were received at the Secretary of State's office at a late hour the last evening. They are all in a character which will require some days to be deciphered, except the last, which is dated the 8th of January, 1798. The contents of this letter are of so much importance to be immediately made known to Congress and to the public, especially to the mercantile part of our fellow-citizens, that I have thought it my duty to communicate them to both Houses without loss of time. JOHN ADAMS. UNITED STATES, _March_ 5, 1798. The Message and paper therein referred to were read, and ordered to lie for consideration. MONDAY, March 19. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: The despatches from the Envoys Extraordinary of the United States to the French Republic, which were mentioned in my Message to both Houses of Congress, of the fifth instant, have been examined and maturely considered. While I feel a satisfaction in informing you that their exertions, for the adjustment of the differences between the two nations, have been sincere and unremitted, it is incumbent on me to declare, that I perceive no ground of expectation that the objects of their mission can be accomplished, on terms compatible with the safety, the honor, or the essential interests of the nation. This result cannot, with justice, be attributed to any want of moderation on the part of this Government, or to any indisposition to forego secondary interests, for the preservation of peace. Knowing it to be my duty, and believing it to be your wish, as well as that of the great body of the people, to avoid, by all reasonable concessions, any participation in the contentions of Europe, the powers vested in our Envoys were commensurate with a liberal and pacific policy, and that high confidence which might justly be reposed in the abilities, patriotism, and integrity, of the characters to whom the negotiation was committed. After a careful review of the whole subject, with the aid of all the information I have received, I can discern nothing which could have insured or contributed to success, that has been omitted on my part, and nothing further which can be attempted, consistently with maxims for which our country has contended at every hazard, and which constitute the basis of our national sovereignty. Under these circumstances, I cannot forbear to reiterate the recommendations which have been formerly made, and to exhort you to adopt, with promptitude, decision, and unanimity, such measures as the ample resources of the country afford, for the protection of our seafaring and commercial citizens; for the defence of any exposed portions of our territory; for replenishing our arsenals, establishing foundries and military manufactures; and to provide such efficient revenue, as will be necessary to defray extraordinary expenses, and supply the deficiencies which may be occasioned by depredations on our commerce. The present state of things is so essentially different from that in which instructions were given to the collectors to restrain vessels of the United States from sailing in an armed condition, that the principle on which those orders were issued has ceased to exist. I therefore deem it proper to inform Congress, that I no longer conceive myself justifiable in continuing them, unless in particular cases, where there may be reasonable ground of suspicion that such vessels are intended to be employed contrary to law. In all your proceedings, it will be important to manifest a zeal, a vigor, and concert, in defence of the national rights, proportioned to the danger with which they are threatened. JOHN ADAMS. UNITED STATES, _March_ 19, 1798. The Message was read and referred to the committee appointed on the 29th November last, who have under consideration that part of the Speech of the PRESIDENT OF THE UNITED STATES, at the commencement of the session, which relates to the protection of commerce, to consider and report thereon to the Senate. TUESDAY, April 3. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: In compliance with the request of the House of Representatives, expressed in their resolution of the second of this month, I transmit to both Houses those instructions to, and despatches from, the Envoys Extraordinary of the United States to the French Republic, which were mentioned in my Message of the nineteenth of March last, omitting only some names, and a few expressions descriptive of the persons. I request that they may be considered in confidence, until the members of Congress are fully possessed of their contents and shall have had opportunity to deliberate on the consequences of their publication; after which time I submit them to your wisdom. JOHN ADAMS. UNITED STATES, _April_ 3, 1798. The galleries being cleared, the Message and documents were read. _Ordered_, That they lie for consideration. MONDAY, April 16. The VICE PRESIDENT communicated a letter from JOHN SLOSS HOBART, resigning his seat in the Senate, in consequence of his appointment to be Judge of the New York district; which letter was read. _Ordered_, That the VICE PRESIDENT be requested to notify the Executive of the State of New York that JOHN SLOSS HOBART hath accepted the appointment of Judge of the New York district, and that his seat in the Senate is of course vacated. TUESDAY, April 17. The bill authorizing the PRESIDENT OF THE UNITED STATES to raise a provisional army was read the second time. WEDNESDAY, May 2. The Senate resumed the consideration of the report of the committee authorizing Thomas Pinckney, late Envoy Extraordinary to the King of Spain, and Minister Plenipotentiary to the King of Great Britain, to receive the customary presents to foreign Ministers at those courts. On the question to agree to the first resolution reported, to wit: "_Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That Congress doth consent that Thomas Pinckney, Esq., who, as Envoy Extraordinary of the United States, negotiated the Treaty of Friendship, Limits, and Navigation between the United States and the King of Spain, may receive from the said King such present as it is customary for His Catholic Majesty to make to such persons as negotiate treaties with him:" It passed in the affirmative--yeas 17, nays 5, as follows: YEAS.--Messrs. Anderson, Bingham, Bloodworth, Clayton, Foster, Goodhue, Greene, Hillhouse, Howard, Latimer, Laurance, Livermore, Martin, Read, Sedgwick, Stockton, and Tracy. NAYS.--Messrs. Brown, Langdon, Marshall, Mason, and Tazewell. And the other resolution reported was agreed to, in the words following: _And be it further resolved_, That Congress doth consent that the said Thomas Pinckney, Esq., lately Minister Plenipotentiary from the United States to the King of Great Britain, may receive from the said King such present as it is customary for His Britannic Majesty to make to Ministers Plenipotentiary on taking leave of him. THURSDAY, June 21. _Affairs with France._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: While I congratulate you on the arrival of General Marshall, one of our late Envoys Extraordinary to the French Republic, at a place of safety, where he is justly held in honor, I think it my duty to communicate to you a letter received by him from Mr. Gerry, the only one of the three who has not received his _congé_. This letter, together with another, from the Minister of Foreign Relations to him, of the third of April, and his answer of the fourth, will show the situation in which he remains; his intentions and prospects. I presume that, before this time, he has received fresh instructions, (a copy of which accompanies this message,) to consent to no loans, and therefore the negotiation may be considered at an end. I will never send another Minister to France without assurances that he will be received, respected, and honored, as the representative of a great, free, powerful, and independent nation. JOHN ADAMS. UNITED STATES, _June_ 21, 1798. The Message and documents were read. _Resolved_, That five hundred copies thereof be printed for the use of the Senate. MONDAY, June 25. The bill to declare the treaties between the United States and the Republic of France void and of no effect, was read the third time; and the final passage of the bill was determined in the affirmative--yeas 14, nays 5, as follows: YEAS.--Messrs. Bingham, Chipman, Foster, Goodhue, Hillhouse, Howard, Laurance, Livermore, Lloyd, North, Paine, Read, Sedgwick, and Tracy. NAYS.--Messrs. Brown, Langdon, Martin, Mason, and Tazewell. _Resolved_, That this bill pass: that it be engrossed; and that the title thereof be, "An act to declare the treaties between the United States and the Republic of France void and of no effect." WEDNESDAY, June 27. The VICE PRESIDENT being absent, the Senate proceeded to the choice of a President _pro tempore_, as the constitution provides, and THEODORE SEDGWICK was duly elected. The bill to define more particularly the crime of treason, and to define and punish the crime of sedition, was read the second time. On motion that this bill be committed, it passed in the affirmative--yeas 15, nays 6, as follows: YEAS.--Messrs. Bingham, Chipman, Foster, Goodhue, Hillhouse, Howard, Latimer, Laurance, Lloyd, North, Paine, Read, Sedgwick, Stockton, and Tracy. NAYS.--Messrs. Anderson, Brown, Langdon, Livermore, Martin, and Mason. _Ordered_, That this bill be referred to Messrs. LLOYD, TRACY, STOCKTON, CHIPMAN, and READ, to consider and report thereon to the Senate. FRIDAY, June 29. The bill to authorize the PRESIDENT to prevent and regulate the landing of French passengers, and other persons who may arrive within the United States from foreign places, was read the third time. On motion, to amend the proviso to the fourth section to read as follows: "_Provided_, That nothing in this act shall be construed to prohibit the migration or importation of such persons as any State may think proper by law to admit, nor to such persons whose admission may be prohibited by the respective States:" It was determined in the negative--yeas 3, nays 17, as follows: YEAS.--Messrs. Anderson, Mason, and Tazewell. NAYS.--Messrs. Bingham, Foster, Goodhue, Hillhouse, Howard, Langdon, Latimer, Laurance, Livermore, Lloyd, Martin, North, Paine, Read, Sedgwick, Stockton, and Tracy. On motion by Mr. MASON, to strike out these words from the preamble: "The peculiar circumstances of the United States, in relation to the Republic of France, and the citizens thereof, require that, whilst the United States have afforded hospitality and protection to Frenchmen who have sought an asylum in this country, they should, on the other hand, guard against the arrival and admission of such evil-disposed persons as by their machinations, may endanger the internal safety and tranquillity of the country;" in order to insert the following words: "It is represented that, on the evacuation of Port au Prince by the British troops, a number of French white men and negroes were put on board of vessels bound to the United States, some of which have arrived, and others may be shortly expected, and it is deemed dangerous to admit indiscriminately such persons into the United States:" It was agreed to divide the motion, and that the words should be struck out; and, on the question to agree to the substitute, it was determined in the negative--yeas 10, nays 10, as follows: YEAS.--Messrs. Anderson, Bingham, Langdon, Laurance, Livermore, Martin, Mason, North, Read, and Tazewell. NAYS.--Messrs. Foster, Goodhue, Hillhouse, Howard, Latimer, Lloyd, Paine, Sedgwick, Stockton, and Tracy. So the amendment was lost. And the bill being further amended, by striking out the remainder of the preamble, _Resolved_, That the consideration of this bill be postponed until to-morrow. SATURDAY, June 30. The Senate resumed the third reading of the bill to authorize the PRESIDENT to prevent or regulate the landing of French passengers, and other persons who may arrive within the ports of the United States from foreign places. On motion, by Mr. MARTIN, one of the majority in favor of the exception yesterday agreed to, namely, "except children under the age of twelve years, and women, in cases especially authorized by the PRESIDENT," and that it be reconsidered, it was determined in the negative--yeas 6, nays 15, as follows: YEAS.--Messrs. Hillhouse, Howard, Lloyd, Martin, and Read. NAYS.--Messrs. Bingham, Brown, Chipman, Foster, Goodhue, Langdon, Latimer, Laurance, Livermore, North, Paine, Sedgwick, Stockton, Tazewell, and Tracy. _Resolved_, That this bill pass; that it be engrossed; and that the title thereof be "An act to authorize the PRESIDENT to prevent or regulate the landing of French passengers, and other persons, who may arrive within the ports of the United States from foreign places." The Senate resumed the second reading of the bill, sent from the House of Representatives, entitled "An act to provide for the valuation of lands and dwelling houses, and the enumeration of slaves, within the United States." On motion, by Mr. PAINE, to agree to the following amendment to the proviso in the eighth section, "And all uncultivated lands, except such as make part or parcel of a farm; and except wood lots, used or reserved for the purposes of fuel, fencing, lumber, or building:" It was determined in the negative--yeas 10, nays 11, as follows: YEAS.--Messrs. Bingham, Brown, Chipman, Goodhue, Latimer, Laurance, Livermore, Paine, Sedgwick, and Stockton. NAYS.--Messrs. Foster, Hillhouse, Howard, Langdon, Lloyd, Martin, Mason, North, Read, Tazewell, and Tracy. On motion, by one of the majority, to reconsider and restore the following words, struck out from the end of the proviso to the eighth section: "or which, at the time of making the said valuation or enumeration, shall not have been assessed for, nor be then held liable to, taxation under the laws of the State wherein the same is, or may be, situated or possessed, shall be exempted from the aforesaid valuation and enumeration:" It was determined in the negative--yeas 6, nays 14, as follows: YEAS.--Messrs. Bingham, Foster, Howard, Latimer, Laurance, and North. NAYS.--Messrs. Brown, Chipman, Goodhue, Hillhouse, Langdon, Livermore, Lloyd, Martin, Mason, Paine, Read, Sedgwick, Tazewell, and Tracy. On motion, by Mr. MASON, to add the following words to the end of the eighth section: "except such as, from fixed infirmity or bodily disability, may be incapable of labor:" It was determined in the affirmative--yeas 11, nays 8, as follows: YEAS.--Messrs. Howard, Langdon, Latimer, Livermore, Lloyd, Martin, Mason, Paine, Read, Sedgwick, and Tazewell. NAYS.--Messrs. Bingham, Brown, Foster, Goodhue, Hillhouse, Laurance, North, and Tracy. On motion, by Mr. BROWN, to strike out of that part of the eighth section which respects the enumeration of slaves these words "above the age of twelve, and under the age of fifty years:" It was determined in the negative--yeas 10, nays 11, as follows: YEAS.--Messrs. Bingham, Brown, Chipman, Goodhue, Hillhouse, Latimer, Laurance, Lloyd, North, and Sedgwick. NAYS.--Messrs. Foster, Howard, Langdon, Livermore, Martin, Mason, Paine, Read, Stockton, Tazewell, and Tracy. The report of the committee having been agreed to, and the bill amended accordingly, _Resolved_, That it pass to the third reading as amended. MONDAY, July 2. JOHN RUTHERFORD, from the State of New Jersey, attended. TUESDAY, July 3. The Senate resumed the consideration of the report of the committee to whom was referred the bill to define more particularly the crime of treason, and to define and punish the crime of sedition; and having agreed to the report, the bill was amended accordingly; and the question to agree to the third reading of the bill, as amended, was determined in the affirmative--yeas 18, nays 5, as follows: YEAS.--Messrs. Bingham, Chipman, Clayton, Foster, Greene, Hillhouse, Howard, Latimer, Laurance, Livermore, Martin, North, Paine, Read, Rutherford, Sedgwick, Stockton, and Tracy. NAYS.--Messrs. Anderson, Brown, Langdon, Mason, and Tazewell. WEDNESDAY, July 4. _Treason and Sedition._ BILL TO DEFINE. On motion to expunge the following words from the second section reported as an amendment: "Or shall, in manner aforesaid, traduce or defame the PRESIDENT OF THE UNITED STATES, or any Court or Judge thereof, by declarations, tending to criminate their motives in any official transaction:" It was determined in the negative--yeas 8, nays 15, as follows: YEAS.--Messrs. Anderson, Brown, Howard, Langdon, Martin, Mason, North, and Tazewell. NAYS.--Messrs. Chipman, Clayton, Foster, Goodhue, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Paine, Read, Rutherford, Sedgwick, Stockton, and Tracy. On motion to expunge the whole of the second section reported by the committee, in the words following: "SEC. 2. _And be it further enacted_, That if any person shall, by any libellous or scandalous writing, printing, publishing, or speaking, traduce or defame the Legislature of the United States, by seditious or inflammatory declarations or expressions, with intent to create a belief in the citizens thereof, that the said Legislature, in enacting any law, was induced thereto by motives hostile to the constitution, or liberties and happiness of the people thereof; or shall, in manner aforesaid, traduce or defame the PRESIDENT OF THE UNITED STATES or any Court or Judge thereof, by declarations tending to criminate their motives, in any official transaction; the person so offending, and thereof convicted, before any court of the United States having jurisdiction thereof, shall be punished by a fine, not exceeding two thousand dollars, and by imprisonment, not exceeding two years:" It was determined in the negative--yeas 6, nays 18, as follows: YEAS.--Messrs. Anderson, Brown, Howard, Langdon, Mason, and Tazewell. NAYS.--Messrs. Chipman, Clayton, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Martin, North, Paine, Read, Rutherford, Sedgwick, Stockton, and Tracy. The question on the final passage of the bill was determined in the affirmative--yeas 18, nays 6, as follows: YEAS.--Messrs. Chipman, Clayton, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Martin, North, Paine, Read, Rutherford, Sedgwick, Stockton, and Tracy. So it was _Resolved_, That this bill pass; that it be engrossed; and that the title thereof be "An act in addition to the act, entitled 'An act for the punishment of certain crimes against the United States.'" WEDNESDAY, July 11. The bill for encouraging the capture of French armed vessels, by armed ships or vessels owned by a citizen or citizens of the United States, was read the third time; and the final passage of the bill was determined in the affirmative--yeas 16, nays 4, as follows: YEAS.--Messrs. Anderson, Bingham, Chipman, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Martin, North, Paine, Read, Sedgwick, Stockton, and Tracy. NAYS.--Messrs. Brown, Langdon, Mason, and Tazewell. So it was _Resolved_, That this bill pass; that it be engrossed; and that the title thereof be "An act for encouraging the capture of French armed vessels, by armed ships or vessels owned by a citizen or citizens of the United States." THURSDAY, July 12. The Senate resumed the third reading of the bill, entitled "An act making further appropriations for the additional Naval Armament;" and the question on the final passage of the bill, as amended, was determined in the affirmative--yeas 13, nays 3, as follows: YEAS.--Messrs. Bingham, Chipman, Clayton, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Martin, North, Paine, Read, Rutherford, Sedgwick, Stockton, and Tracy. NAYS.--Messrs. Anderson, Mason, and Tazewell. So it was _Resolved_, That this bill do pass as amended. FRIDAY, July 13. Mr. READ, from the committee to whom was referred the bill, sent from the House of Representatives, entitled "An act providing for the enumeration of the inhabitants of the United States," reported the bill without amendment. On motion, by Mr. LIVERMORE, to postpone the further consideration of this bill to the next session of Congress, it was determined in the affirmative--yeas 11, nays 7. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: A resolution of both Houses of Congress, authorizing an adjournment on Monday, the 16th of this month, has been laid before me. Sensible of the severity of the service in so long a session, it is with great reluctance that I find myself obliged to offer any consideration which may operate against the inclination of the members; but certain measures of Executive authority which will require the consideration of the Senate, and which cannot be matured, in all probability, before Monday or Tuesday, oblige me to request of the Senate that they would continue their session until Wednesday or Thursday. JOHN ADAMS. UNITED STATES, _July 13, 1798_. The Message was read, and ordered to lie for consideration. MONDAY, July 16. The Senate took into consideration the report of the committee to whom was referred the Message of the PRESIDENT OF THE UNITED STATES of the 13th instant, and which is as follows: "That as, in the opinion of the PRESIDENT, certain measures of Executive authority will acquire the consideration of the Senate, and which could not be matured before Monday or Tuesday, it is the opinion of the committee, that the Senate should adjourn in their Executive capacity to meet to-morrow at the Senate Chamber, at ten o'clock in the forenoon, on Executive business." And the report was adopted. A message from the House of Representatives informed the Senate, that the House have appointed a joint committee on their part to wait on the PRESIDENT OF THE UNITED STATES, and notify him, that, unless he may have any further communications to make to the two Houses of Congress, they are ready to adjourn; and desire the appointment of a committee on the part of the Senate. The Senate took into consideration this resolution of the House of Representatives. _Resolved_, That they do concur therein, and that Messrs. CHIPMAN and GREENE be the committee on the part of the Senate. Mr. CHIPMAN reported, from the joint committee, that they had waited on the PRESIDENT OF THE UNITED STATES, who informed them that he had nothing further to communicate to Congress, except what might result from the last enrolled bill now under his consideration. _Ordered_, That the Secretary acquaint the House of Representatives therewith; and that the Senate, having finished the Legislative business before them, are about to adjourn. A message from the House of Representatives informed the Senate, that the House having finished the business before them, are about to adjourn to the first Monday in December next. The Senate then went into the consideration of Executive business--after which, The PRESIDENT declared the Senate, so far as respects its Legislative functions, adjourned to the time by the constitution prescribed; and, in its Executive capacity, until to-morrow morning at ten o'clock. TUESDAY, July 17, 1798. Agreeably to the adjournment of yesterday, as stated at large in the Legislative proceedings, the Senate assembled. PRESENT: THEODORE SEDGWICK, President _pro tempore_, from the State of Massachusetts. BENJAMIN GOODHUE, from Massachusetts. NATHANIEL CHIPMAN, from Vermont. JAMES HILLARY and URIAH TRACY, from Connecticut. THEODORE FOSTER and RAY GREENE, from Rhode Island. JOHN LAURANCE and WILLIAM NORTH, from New York. JOHN RUTHERFORD, from New Jersey. WILLIAM BINGHAM, from Pennsylvania. HENRY LATIMER, from Delaware. JOHN E. HOWARD, from Maryland. HENRY TAZEWELL, from Virginia. JOHN BROWN, from Kentucky. JOSEPH ANDERSON, from Tennessee. ALEXANDER MARTIN, from North Carolina. JACOB READ, from South Carolina. _Ordered_, That the following summons, directed to the Senators of the United States, respectively, be entered on the journals: _The President of the United States to ----, Senator for the State of ----._ Certain matters touching the public good, requiring that the session of the Senate, for Executive business, should be continued, and that the members thereof should convene on Tuesday, the 17th day of July, inst., you are desired to attend at the Senate Chamber, in Philadelphia, on that day, at ten o'clock in the forenoon, then and there to receive and deliberate on such communications as shall be made to you on my part. JOHN ADAMS. UNITED STATES, _July 16, 1798_. WEDNESDAY, July 18. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: Believing that the letter received this morning from General Washington, will give high satisfaction to the Senate, I transmit them a copy of it, and congratulate them and the public on this great event--the General's acceptance of his appointment as Lieutenant General and Commander-in-Chief of the Army. JOHN ADAMS. UNITED STATES, _July 17, 1798_. MOUNT VERNON, _July 13, 1798_. DEAR SIR: I had the honor, on the evening of the 11th instant, to receive from the hands of the Secretary of War, your favor of the 7th, announcing that you had, with the advice and consent of the Senate, appointed me Lieutenant General and Commander-in-Chief of all the armies raised or to be raised for the service of the United States. I cannot express how greatly affected I am at this new proof of public confidence, and the highly flattering manner in which you have been pleased to make the communication; at the same time I must not conceal from you my earnest wish that the choice had fallen upon a man less declined in years, and better qualified to encounter the usual vicissitudes of war. You know, sir, what calculation I had made relative to the probable course of events on my retiring from office, and the determination I had consoled myself with, of closing the remnant of my days in my present peaceful abode; you will, therefore, be at no loss to conceive and appreciate the sensations I must have experienced to bring my mind to any conclusion that would pledge me, at so late a period of life, to leave scenes I sincerely love, to enter upon the boundless field of public action, incessant trouble, and high responsibility. It was not possible for me to remain ignorant of, or indifferent to, recent transactions. The conduct of the Directory of France towards our country; their insidious hostility to its Government; their various practices to withdraw the affections of the people from it; the evident tendency of their acts and those of their agents to countenance and invigorate opposition; their disregard of solemn treaties and the laws of nations; their war upon our defenceless commerce; their treatment of our ministers of peace; and their demands, amounting to tribute; could not fail to excite in me corresponding sentiments with those my countrymen have so generally expressed in their affectionate addresses to you. Believe me, sir, no one can more cordially approve of the wise and prudent measures of your Administration. They ought to inspire universal confidence; and will, no doubt, combined with the state of things, call from Congress such laws and means as will enable you to meet the full force and extent of the crisis. Satisfied, therefore, that you have sincerely wished and endeavored to avert war, and exhausted, to the last drop, the cup of reconciliation, we can with pure hearts appeal to Heaven for the justice of our cause, and may confidently trust the final result to that kind Providence who has heretofore, and so often, signally favored the people of these United States. Thinking in this manner, and feeling how incumbent it is upon every person, of every description, to contribute at all times to his country's welfare, and especially in a moment like the present, when every thing we hold dear and sacred is so seriously threatened, I have finally determined to accept the commission of Commander-in-Chief of the Armies of the United States; with the reserve only that I shall not be called into the field until the Army is in a situation to require my presence, or it becomes indispensable by the urgency of circumstances. In making this reservation, I beg it to be understood, that I do not mean to withhold any assistance to arrange and organize the Army, which you may think I can afford. I take the liberty also to mention, that I must decline having my acceptance considered as drawing after it any immediate charge upon the public, or that I can receive any emoluments annexed to the appointment, before entering into a situation to incur expense. The Secretary of War being anxious to return to the seat of Government, I have detained him no longer than was necessary to a full communication upon the several points he had in charge. With very great respect and consideration, I have the honor to be, dear sir, your most obedient and humble servant, G. WASHINGTON. JOHN ADAMS, _President of the United States_. The Message and letter were read, and five hundred copies thereof ordered to be printed for the use of the Senate. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: I nominate Alexander Hamilton, of New York, to be Inspector General of the Army, with the rank of Major General. Charles Cotesworth Pinckney, of South Carolina, to be a Major General. Henry Knox, of Massachusetts, to be a Major General. Henry Lee, of Virginia, to be a Major General of the Provisional Army. Edward Hand, of Pennsylvania, to be a Major General of the Provisional Army. John Brooks, of Massachusetts, to be a Brigadier General. William Washington, of South Carolina, to be a Brigadier General. Jonathan Dayton, of New Jersey, to be a Brigadier General. William Stevens Smith, of New York, to be Adjutant General, with the rank of Brigadier General. Ebenezer Huntington, of Connecticut, to be a Brigadier General of the Provisional Army. Anthony Walton White, to be a Brigadier General of the Provisional Army. William Richardson Davie, of North Carolina, to be a Brigadier General of the Provisional Army. John Sevier, of Tennessee, to be a Brigadier General of the Provisional Army. James Craik, of Virginia, to be Physician General of the Army. JOHN ADAMS. JULY 18, 1798. The Message was read, and ordered to lie for consideration. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: I nominate William Winder, of Maryland, to be Accountant of the Navy. JOHN ADAMS. JULY 18, 1798. THURSDAY, July 19. The Senate took into consideration the Message of the PRESIDENT OF THE UNITED STATES, of the 18th instant, and the nomination contained therein, of William Winder, to office. Whereupon, _Resolved_, That they do advise and consent to the appointment agreeably to the nomination. _Ordered_, That the Secretary lay this resolution before the PRESIDENT OF THE UNITED STATES. The Senate took into consideration the Message of the PRESIDENT OF THE UNITED STATES, of the 18th instant, and the nominations contained therein, of Alexander Hamilton, and others, to military appointment. Whereupon, _Resolved_, That they do advise and consent to the appointments, agreeably to the nominations, respectively; except to that of William Stevens Smith, of New York, to be Adjutant General, with the rank of Brigadier General, to which they do not advise and consent. _Ordered_, That the Secretary lay this resolution before the PRESIDENT OF THE UNITED STATES. _Ordered_, That Mr. BINGHAM and Mr. LAURANCE be a committee to wait on the PRESIDENT OF THE UNITED STATES, and notify him, that having finished the Executive business before them, they are ready to adjourn, unless he may have any further matters for their consideration. Mr. BINGHAM reported, from the committee last mentioned, that the PRESIDENT OF THE UNITED STATES informed them that he had a further communication to make to the Senate. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: I nominate William North, of New York, to be Adjutant General of the Army, with the rank of Brigadier General. JOHN ADAMS. UNITED STATES, _July 19, 1798_. The Message was read. On motion, it was agreed, by unanimous consent, to dispense with the rule, and that the said nomination be now considered. Whereupon, _Resolved_, That they do advise and consent to the appointment, agreeably to the nomination. _Ordered_, That the Secretary lay this resolution before the PRESIDENT OF THE UNITED STATES. Whereupon, The PRESIDENT adjourned the Senate to the first Monday in December next, to meet in this place. FIFTH CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES In THE HOUSE OF REPRESENTATIVES. MONDAY, November 13, 1797. This being the day appointed by law for the meeting of Congress, the House of Representatives assembled in their Chamber, and the following members answered to their names, to wit: _From New Hampshire._--ABIEL FOSTER. _From Massachusetts._--STEPHEN BULLOCK, SAMUEL LYMAN, JOHN READ, WILLIAM SHEPARD, GEORGE THATCHER, JOSEPH B. VARNUM, and PELEG WADSWORTH. _From Connecticut._--JOHN ALLEN, JOSHUA COIT, ROGER GRISWOLD, and NATHANIEL SMITH. _From New York._--LUCAS ELMENDORPH, HENRY GLENN, JONATHAN N. HAVENS, HEZEKIAH L. HOSMER, JOHN E. VAN ALLEN, and JOHN WILLIAMS. _From New Jersey._--JONATHAN DAYTON, (Speaker,) and THOMAS SINNICKSON. _From Pennsylvania._--JOHN CHAPMAN, ALBERT GALLATIN, THOMAS HARTLEY, and JOHN SWANWICK. _From Maryland._--GEORGE BAER, junior, WILLIAM CRAIK, GEORGE DENT, and RICHARD SPRIGG, junior. _From Virginia._--JOHN DAWSON, D. HOLMES, JAMES MACHIR, DANIEL MORGAN, and ANTHONY NEW. _North Carolina._--MATTHEW LOCKE, NATHANIEL MACON, and RICHARD STANFORD. _South Carolina._--ROBERT GOODLOE HARPER, and JOHN RUTLEDGE, junior. Several new members, to wit: ISAAC PARKER, from Massachusetts; THOMAS TILLINGHAST, returned to serve as a member of this House, for the State of Rhode Island, in the room of Elisha R. Potter, who has resigned his seat; and WILLIAM EDMOND, returned to serve in this House, as a member for Connecticut, in the room of James Davenport, deceased, appeared, produced their credentials, and took their seats in the House. But a quorum of the whole number not being present, the House adjourned until to-morrow morning, eleven o'clock. TUESDAY, November 14. Several other members, to wit: from Massachusetts, HARRISON G. OTIS; from Rhode Island, CHRISTOPHER G. CHAMPLIN; from Connecticut, SAMUEL W. DANA and CHAUNCEY GOODRICH; from Vermont, MATTHEW LYON; from Pennsylvania, BLAIR MCCLENACHAN and RICHARD THOMAS; from Delaware, JAMES A. BAYARD; from Virginia, RICHARD BRENT; from North Carolina, ROBERT WILLIAMS; from South Carolina, WILLIAM SMITH; and from Georgia, ABRAHAM BALDWIN, appeared, and took their seats in the House. But a quorum of the whole number not being present, the House adjourned until to-morrow morning, eleven o'clock. WEDNESDAY, November 15. Several other members, to wit: from New Jersey, JAMES H. IMLAY; from Pennsylvania, WILLIAM FINDLAY; and from Maryland, WILLIAM HINDMAN, appeared, and took their seats in the House. And a quorum, consisting of a majority of the whole number, being present, the oath to support the Constitution of the United States was administered, by Mr. SPEAKER, to the following new members, to wit: ISAAC PARKER, THOMAS TILLINGHAST, and WILLIAM EDMOND, who took their seats in the House on Monday last. A message was then sent to the Senate, to inform them that a quorum of the House is assembled, and were ready to proceed to business. THURSDAY, November 16. Several other members, to wit: from Vermont, LEWIS R. MORRIS; from New York, JAMES COCHRAN, and EDWARD LIVINGSTON; from Virginia, MATTHEW CLAY, THOMAS EVANS, WALTER JONES, ABRAM TRIGG, and JOHN TRIGG; and from North Carolina, WILLIAM BARRY GROVE, appeared, and took their seats in the House. And then the House adjourned until to-morrow morning, eleven o'clock. FRIDAY, November 17. Two other members, to wit: from New Jersey, MARK THOMSON; and from Pennsylvania, JOHN A. HANNA, appeared, and took their seats in the House. MONDAY, November 20. Several other members, to wit: from New Hampshire, JONATHAN FREEMAN and WILLIAM GORDON; from New Jersey, JAMES SCHUREMAN; from Maryland, WILLIAM MATTHEWS; and from Virginia, ABRAHAM VENABLE, appeared, and took their seats in the House. TUESDAY, November 21. Several other members, to wit: from Massachusetts, DWIGHT FOSTER; from New York, PHILIP VAN CORTLANDT; and from Virginia, CARTER B. HARRISON, appeared, and took their seats in the House. WEDNESDAY, November 22. Two other members, to wit: from Pennsylvania, DAVID BARD, and SAMUEL SITGREAVES, appeared and took their seats. THURSDAY, November 23. Two new members, to wit: WILLIAM C. C. CLAIBORNE, from the State of Tennessee; and THOMAS PINCKNEY, returned to serve as a member of this House for the State of South Carolina, in the room of William Smith, appointed Minister Plenipotentiary of the United States to the Court of Lisbon, appeared, produced their credentials, and took their seats in the House; the oath to support the Constitution of the United States being first administered to them by Mr. SPEAKER, according to law. Two other members, to wit: from Virginia, THOMAS CLAIBORNE and JOHN CLOPTON, appeared, and took their seats in the House. _President's Speech._ The hour of twelve being near at hand, the SPEAKER announced it, and a message was sent to the Senate to inform them that they were met, and ready to receive the communications of the PRESIDENT OF THE UNITED STATES, agreeably to his appointment. The members of the Senate attended accordingly, and about a quarter after twelve the PRESIDENT OF THE UNITED STATES (after visiting the Senate Chamber) entered the House, accompanied by his Secretary and the Heads of Departments, and being seated, rose and delivered the following Address. (See Senate proceedings, _ante_.) Having concluded his Speech, and delivered copies of it to the PRESIDENT _pro tem._ of the Senate, and to the SPEAKER of the House of Representatives, the PRESIDENT retired, the SPEAKER resumed the chair, and the House being come to order, he, as usual, read the Speech from the chair. This being done, on motion, it was referred to a Committee of the whole House, and made the order for to-morrow. It was ordered also to be printed. MONDAY, November 27. A new member, to wit: BAILEY BARTLETT, returned to serve in this House as a member for Massachusetts, in the place of Theophilus Bradbury, who has resigned his seat, appeared, produced his credentials, and took his seat in the House; the oath to support the Constitution of the United States being first administered to him by Mr. SPEAKER, according to law. Several other members, to wit: from Massachusetts, SAMUEL SEWALL; from New York, DAVID BROOKS; from Maryland, JOHN DENNIS; from Virginia, JOHN NICHOLAS and JOSIAH PARKER; and from North Carolina, THOMAS BLOUNT, appeared and took their seats in the House. _Address to the President._ Mr. OTIS, from the committee appointed to draft an Address in answer to the Speech of the PRESIDENT OF THE UNITED STATES, reported the following, which was twice read, and referred to a Committee of the Whole for to-morrow: SIR: While our sympathy is excited by the recent sufferings of the citizens of Philadelphia, we participate in the satisfaction which you are pleased to express, that the duration of the late calamity was so limited, as to render unnecessary the expense and inconvenience that would have been incident to the convention of Congress in another place: and we shall readily attend to every useful amendment of the law which contemplates the event of contagious sickness at the seat of Government. In lamenting the increase of the injuries offered to the persons and property of our citizens at sea, we gratefully acknowledge the continuance of interior tranquillity, and the attendant blessings of which you remind us, as alleviations of these fatal effects of injustice and violence. Whatever may be the result of the mission to the French Republic, your early and uniform attachment to the interest of our country; your important services in the struggle for its independence, and your unceasing exertions for its welfare, afford no room to doubt of the sincerity of your efforts to conduct the negotiation to a successful conclusion, on such terms as may be compatible with the safety, honor, and interest of the United States. We have also a firm reliance upon the energy and unanimity of the people of these States, in the assertion of their rights, and on their determination to exert, upon all proper occasions, their ample resources in providing for the national defence. The importance of commerce, and its beneficial influence upon agriculture, arts, and manufactures, have been verified in the growth and prosperity of our country. It is essentially connected with the other great interests of the community. They must flourish and decline together; and while the extension of our navigation and trade naturally excites the jealousy, and tempts the avarice of other nations, we are firmly persuaded, that the numerous and deserving class of citizens engaged in these pursuits, and dependent on them for their subsistence, has a strong and indisputable claim to our support and protection. The delay of the Spanish officers to fulfil the treaty existing with His Catholic Majesty is a source of deep regret. We learn, however, with satisfaction, that you still indulge hopes of removing the objections which have been made to its execution, and that you have continued in readiness to receive the posts. Disposed to perform, with fidelity, our national engagements, we shall insist upon the same justice from others which we exercise towards them. Our abhorrence cannot be too strongly expressed of the intrigues of foreign agents to alienate the affections of the Indian nations, and to rouse them to acts of hostility against the United States. No means in our power should be omitted of providing for the suppression of such cruel practices, and for the adequate punishment of their atrocious authors. Upon the other interesting subjects noticed in your Address, we shall bestow the requisite attention. To preserve inviolate the public faith, by providing for the due execution of our treaties; to indemnify those who may have just claims to retribution upon the United States for expenses incurred in defending the property and relieving the necessities of our unfortunate fellow-citizens; to guard against evasions of the laws intended to secure advantages to the navigation of our own vessels; and especially, to prevent, by all possible means, an unnecessary accumulation of the public debt, are duties which we shall endeavor to keep in view, and discharge with assiduity. We regard, with great anxiety, the singular and portentous situation of the principal powers of Europe. It was to be devoutly wished that the United States, remote from this seat of war and discord; unambitious of conquest; respecting the rights of other nations; and desirous, merely, to avail themselves of their natural resources, might be permitted to behold the scenes which desolate that quarter of the globe with only those sympathetic emotions which are natural to the lovers of peace and friends of the human race. But we are led by events to associate with these feelings a sense of the dangers which menace our security and peace. We rely upon your assurances of a zealous and hearty concurrence in such measures as may be necessary to avert these dangers; and nothing on our part shall be wanting to repel them, which the honor, safety, and prosperity of our country may require. TUESDAY, November 28. SAMUEL SMITH, from Maryland, appeared and took his seat. _Address to the President._ Mr. COIT moved for the order of the day on the reported Answer to the PRESIDENT'S Speech. The motion being agreed to, the House accordingly resolved itself into a Committee of the Whole upon that subject, and the Address having been read through by the Chairman, it was again read by paragraphs. The first four were read, without any objection being offered to them. The fifth being gone through, Mr. PINCKNEY said, he had to propose a small alteration to this clause: he wished to make the latter part of it a little less harsh. Instead of saying, "we shall insist upon the same justice from others," &c., he thought it would have the same effect, and the terms would be less objectionable, if the passage ran thus: "Nothing shall be wanting on our part to obtain the same justice from others," &c. The expression used, he said, might be perfectly justifiable, but, if we could obtain what we wished without the possibility of giving offence, he thought that mode ought to be preferred. It was on this account that he wished the phraseology to be changed. Mr. RUTLEDGE said, as a member of the committee who reported the Address, he did not feel tenacious as to the wording of it. At first, he thought with his colleague, who proposed the amendment, that the word _insist_ was rather harsh; but, upon a little reflection, his objections to the phrase were removed. Indeed, he thought the proposed amendment would make the passage stronger than it was in the original. They might insist, he said, in argument; looking upon the treaty as a good one, they might insist upon its execution; but if it were not to be effected without going to war, they might afterwards relinquish it. The amendment he thought more forcible. It said "nothing shall be wanting to obtain," &c.; which would be to say, we look upon the treaty as a good one, and nothing shall be wanting on our part to obtain its fulfilment. The words might even be considered to say, that we are determined to have the treaty carried into effect, though war should be the price of the determination. Mr. DAYTON (the Speaker) approved of the amendment of the gentleman from South Carolina, but not from the reasons which that gentleman had urged in support of it, but for those which his colleague had produced against it; not because it was more smooth, but because it contained more of decision and firmness. He thought, in this respect, this country had been trifled with, and any opinion expressed by them upon this subject ought to be done with a firmness of tone. The question on Mr. PINCKNEY'S amendment was put and carried, there being sixty-two members in the affirmative. The remainder of the Address was then gone through, without further observation. Mr. OTIS, from the committee appointed to wait upon the PRESIDENT, to know when and where it would be convenient for him to receive the Address in answer to his Speech, reported that they had attended to that service, and that it would be convenient for him to receive it at his house to-morrow at twelve o'clock. WEDNESDAY, November 29. _Address to the President._ Mr. LYON said, when the motion was proposed yesterday on the subject of waiting upon the PRESIDENT, he should have opposed it, only that he did not wish to deprive some gentlemen of the gratification of attending the ceremony; and now he hoped those gentlemen would consent to gratify him by agreeing to a similar resolution to that of last session, excusing him from an attendance upon the occasion. Mr. MACON observed, that whether the resolution was agreed to or not, the gentleman might doubtless remain behind if he chose, as he had no idea that the House could compel members to go about parading the streets of Philadelphia. The gentleman might have conscientious scruples, and if the ceremony were meant to be respectful to the PRESIDENT, members should attend it freely, or not at all. He should wish, therefore, that gentlemen disinclined to do the service, would not join it. Mr. OTIS hoped the motion would not prevail. He presumed no gentleman there was particularly anxious for the society of the gentleman from Vermont on this occasion. No doubt he would grace the procession, but it would be sufficiently long without him, and if he chose to remain behind, he need be under no apprehensions of being called to account for his conduct. It was not becoming the dignity of the House to pass the resolution in question. It appeared to him that the gentleman was in full health and spirits, and every way fit for business; and as the House had resolved the thing should be done, he had no idea of admitting the protest of an individual upon their journals against the measure. Mr. GALLATIN said he should be in favor of the previous question, but not for the reasons assigned by the mover of it, but for those offered by the gentleman from North Carolina, (Mr. MACON,) viz: because he did not believe there existed any power in that House to compel any member to wait upon the PRESIDENT with the Address; therefore it would be improper to grant an indulgence to a member from doing what there was no obligation upon him to do. He did not recollect the words of the resolution which had been agreed to. [The SPEAKER repeated them. They were, "that the SPEAKER, attended by the House of Representatives, shall wait upon the PRESIDENT, &c."] This, Mr. G. said, must be understood in a qualified sense, as the House of Representatives had no existence out of those walls. When the SPEAKER presented the Address, the House was not present; they could not debate nor do any act as a House. The Address was, therefore, strictly speaking, presented by the SPEAKER, followed by the members of the House of Representatives--as he did not conceive the House had any power without the walls of the house. They could, indeed, appoint committees to do business out of doors, but could not call out the members as a body. Upon this ground he was, therefore, in favor of the previous question. Mr. LYON said, understanding the matter in the light in which it had been placed by the gentleman from Pennsylvania, he would withdraw his motion. The SPEAKER announced the arrival of the hour which the PRESIDENT OF THE UNITED STATES had appointed to receive the Address of the House in answer to his Speech; and the SPEAKER, attended by the members, accordingly waited upon the PRESIDENT, at his house, and presented to him the Address: to which the PRESIDENT made the following reply: _Gentlemen of the House of Representatives_: I receive this Address from the House of Representatives of the United States with peculiar interest. Your approbation of the meeting of Congress in this city, and of those other measures of the Executive authority of Government communicated in my Address to both Houses, at the opening of the session, afford me great satisfaction, as the strongest desire of my heart is to give satisfaction to the people and their representatives by a faithful discharge of my duty. The confidence you express in the sincerity of my endeavors, and the unanimity of the people, does me much honor, and gives me great joy. I rejoice in that harmony which appears in the sentiments of all the branches of the Government, on the importance of our commerce and our obligations to defend it, as well as in all other subjects recommended to your consideration, and sincerely congratulate you and our fellow-citizens at large on this appearance, so auspicious to the honor, interest, and happiness of the nation. JOHN ADAMS. UNITED STATES, _November 29, 1797_. The SPEAKER and members then returned to the House, and order being obtained, the SPEAKER, as usual, read the Answer of the PRESIDENT from the chair. THURSDAY, November 30. THOMPSON J. SKINNER, from Massachusetts, appeared, and took his seat. _Memorial of Quakers._ Mr. GALLATIN presented the following memorial of certain citizens, called Quakers, in the name of the annual meeting of that body, lately held in Philadelphia. _To the Senate and House of Representatives of the United States in Congress assembled_: The memorial and address of the people called Quakers, from their yearly meeting held in Philadelphia, by adjournments from the 25th of the 9th month, to the 29th of the same, inclusive, 1797, respectfully showeth: That, being convened, at this our annual solemnity, for the promotion of the cause of truth and righteousness, we have been favored to experience religious weight to attend our minds, and an anxious desire to follow after those things which make for peace; among other investigations the oppressed state of our brethren of the African race has been brought into view, and particularly the circumstances of one hundred and thirty-four in North Carolina, and many others whose cases have not so fully come to our knowledge, who were set free by members of our religious society, and again reduced into cruel bondage, under the authority of existing or retrospective laws; husbands and wives, and children, separated, one from another; which, we apprehend to be an abominable tragedy, and with other acts, of a similar nature, practised in other States, has a tendency to bring down the judgments of a righteous God upon our land. This city and neighborhood, and some other parts, have been visited with an awful calamity, which ought to excite an inquiry in the cause and endeavors to do away those things which occasion the heavy clouds that hang over us. It is easy with the Almighty to bring down the loftiness of men by diversified judgments, and to make them fear the rod and Him that hath appointed it. We wish to revive in your view the solemn engagement of Congress, made in the year one thousand seven hundred and seventy-four, as follows: "And, therefore, we do for ourselves, and the inhabitants of the several colonies, whom we represent, firmly agree and associate, under the sacred ties of virtue, honor, and love of our country, as follows: "Article 2. We will neither import nor purchase any slaves imported after the first day of December next, after which time we will wholly discontinue the slave trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures to those who are concerned in it. "Article 3. And will discountenance and discourage every species of extravagance and dissipation, especially horse-racing, and all kinds of gaming, cock-fighting, exhibitions of shows, plays, and other expensive diversions and entertainments." This was a solemn league and covenant, made with the Almighty in an hour of distress, and He is now calling upon you to perform and fulfil it; but how has this solemn covenant been contravened by the wrongs and cruelties practised upon the poor African race, the increase of dissipation and luxury, and the countenance and encouragement given to play-houses, and other vain amusements! And how grossly is the Almighty affronted on the day of the celebration of Independence! What rioting and drunkenness, chambering and wantonness! to the great grief of sober inhabitants, and the disgrace of our national character. National evils produce national judgments; we therefore fervently pray the Governor of the Universe may enlighten your understandings and influence your minds, so as to engage you to use every exertion in your power, to have these things redressed. With sincere desires for your happiness here and hereafter, and that, when you come to close this life, you may individually be able to appeal as a ruler did formerly: "Remember now, O Lord, I beseech thee, how I have walked before thee, in truth and with a perfect heart, and have done that which is good in thy sight." We remain your friends and fellow-citizens. Signed in and on behalf of the said meeting, by JONATHAN EVANS, _Clerk to the meeting this year_. The memorial having been read by the Clerk, Mr. GALLATIN moved that it be read a second time. Mr. HARPER hoped not. This was not the first, second, or third time, that the House had been troubled with similar applications, which had a tendency to stir up a class of persons to inflict calamities which would be of greater consequence than any evils which were at present suffered; and this, and every other Legislature, ought to set their faces against remonstrances complaining of what it was utterly impossible to alter. Mr. THATCHER hoped the petition would have a second reading, and be committed. It appeared to him that this would be the regular way of getting rid of the difficulty which was apprehended. The gentleman who had just sat down said, that this was not the first, second, or third time, that the House had been troubled with similar petitions. This, he said, was natural. If any number of persons considered themselves aggrieved, it was not likely they should leave off petitioning, until the House should act upon their petition. He thought this was what they ought to do. If the Quakers thought themselves aggrieved, it was their duty to present their petition, not only three, five, or seven times, but seventy times, until it was attended to. Mr. RUTLEDGE should not be opposed to the second reading and reference of this memorial, if he thought the strong censure they deserved would be the report of a committee. This censure, he thought, this body of men ought to have; a set of men who attempt to seduce the servants of gentlemen travelling to the seat of Government, who were incessantly importuning Congress to interfere in a business with which the constitution had said they had no concern. If he was sure this conduct would be reprobated, he would cheerfully vote for a reference of the present petition; but not believing this would be the case, he should be for its laying on the table, or under the table, that they might not only have done with the business for to-day, but finally. At a time when some nations were witnesses of the most barbarous and horrid scenes, these petitioners are endeavoring to incite a class of persons to the commission of similar enormities. He thought the matter of the greatest importance, and that the reference ought by no means to be made. Mr. SWANWICK was sorry to see so much heat produced by the introduction of this petition. He himself could see no reason why the petition should not be dealt with in the ordinary way. If the petitioners asked for any thing which it was not in the power of the House to grant, it would be of course refused; but this was no reason why their petition should not be treated with ordinary respect. In this memorial, he said, sundry things were complained of; not only slavery, but several other grievances. For instance, play-houses were complained of, whether justly or not, he was not about to decide. With respect to the grievance mentioned in North Carolina, something perhaps might be done to remedy it, without affecting the property which gentlemen seemed so much alarmed about. He could not suppose there was a disposition in the House to violate the property of any man; there was certainly as strong a disposition in the Middle States as in the Southern, to hold inviolable the right of property; nor could he see any reasonable ground for throwing this petition under the table. If these people were wrong in their understanding of this subject, it would be best to appoint a committee to set them right. Mr. GALLATIN said it was the practice of the House, whenever a memorial was presented, to have it read a first and a second time, and then to commit it, unless it were expressed in such indecent terms as to induce the House to reject it, or upon a subject upon which petitions had been lately rejected by a large majority of the House. In no other case were petitions rejected without examination and without discussion. He said, without examination and without discussion, because it was impossible, upon a single reading of a petition, to be able to form a sound judgment upon it. Indeed, seeing the way in which the gentleman from South Carolina (Mr. RUTLEDGE) had treated the subject, no cool examination could be expected at present; in the moment of passion it would be best not to decide, but to send the petition to a committee. What was the objection to this mode of proceeding? It was that the subject would shake a certain kind of property. How so? A petition that reminds us of the fate of certain blacks in this country, which did not refer to slaves, but to free men. This petition was to shake property! In the same manner it might be said that the law of Pennsylvania for the gradual abolition of slavery had also a tendency to destroy that property; or that the Legislative decision of the State of Massachusetts that there shall be no slaves under their Government, would have that effect. But it was said the characters of the petitioners was such as they ought to brand with the mark of disapprobation. In support of this charge, it was alleged that they were not satisfied with petitioning, but they attempted to debauch and seduce servants--to rob gentlemen of their property. He did not know to what the gentleman who made this assertion alluded; but he believed, if the matter was fairly stated, whatever may have been done in the State of Pennsylvania, has been no more than an endeavor to carry into full effect the laws of the State, which say, that "all men are free when they set their foot within the State," excepting only the servants of Members of Congress.[25] As to the moral character of this body of people, though a number of their principles were different from those which he professed, he believed it could not be said, with truth, that they were friends to any kind of disorder; and he was surprised to hear gentlemen suppose that they could or would do any thing which would throw into disorder any part of the Union. On the contrary, he believed them to be good friends of order. Mr. G. said he wished to have avoided a discussion of the merits of the memorial; but when they were told it was improper to do any thing on the subject, it became necessary. He knew it was in their power to do something. They might lay a duty of ten dollars a head on the importation of slaves; he knew a memorial had been presented at a former session respecting the kidnapping of negroes, which had been favorably reported upon. Finally, the present memorial did not apply only to the blacks, but to other objects. With respect to plays, they had a motion last session before them for laying a tax upon them, which had a reference to the subject. By committing this memorial, they should give no decision. If the committee reported they could do nothing in the business, and the House agreed to the report, the matter would be closed in a much more respectful way than by throwing the petition under the table. Mr. SEWALL said, the gentleman last up had stated two cases in which petitions had been received without a commitment. He might have added a third, more applicable to the present memorial. This was when a petition was upon matter over which this House had no cognizance, especially if it were of such a nature as to excite disagreeable sensations in one part of the House, who were concerned in property which was already held under circumstances sufficiently disagreeable. In such cases, they ought at once to reject the memorial, as it would be misspending time to commit it. If, for instance, a petition should be presented, complaining that a person had refused to discharge an obligation to another, it would be at once acknowledged that the House could not enforce the obligation; but application must be made to a court of justice. So in this case; the petitioners complain of a law of North Carolina. This House, he said, could not change that law. If any thing was done there contrary to right, the courts of that State, as well as those of the United States, were open to afford redress. It was their business, and not the business of that House. They did not come there to act upon subjects agreeable to their feelings, but upon such as the constitution had placed in their hands. Mr. MACON said, there was not a gentleman in North Carolina who did not wish there were no blacks in the country. It was a misfortune--he considered it as a curse; but there was no way of getting rid of them. Instead of peace-makers, he looked upon the Quakers as war-makers, as they were continually endeavoring in the Southern States to stir up insurrections amongst the negroes.[26] It was unconstitutional, he said, in these men to desire the House to do what they had no power to do; as well might they ask the PRESIDENT OF THE UNITED STATES to come and take the SPEAKER'S chair. There was a law in North Carolina, he said, which forbade any person from holding either a black or white person as a slave after he had been set at liberty. The one hundred and thirty-four negroes alluded to in the petition, he knew nothing of. In the war, he said, the Quakers in their State were generally Tories. They began to set free their negroes, when the State passed a law that they should not set them free. If these people were dissatisfied with the law, they had nothing to do but transport their negroes into Pennsylvania, where, the gentleman from that State had told them, they would be immediately free. This subject had already been before the House, but they declined doing any thing in it. It was extraordinary that these people should come, session after session, with their petitions on this subject. They had put play-houses into their memorial; but they had nothing to do with them. In this State, he believed, the Legislature had passed a law authorizing them. It was altogether a matter of State policy. The whole petition was, indeed, unnecessary. The only object seemed to be to sow dissension. A petition could not come there touching any subject on which they had power to act, which he should not be in favor of committing; but this thing being wrong in itself, it was needless to commit it, as no single purpose could be answered by it. Mr. ISAAC PARKER was of opinion with the gentleman from Pennsylvania, (Mr. GALLATIN,) with respect to the disposal of petitions. But it appeared to him that the subject matter of all petitions should be within the view and authority of the House; if not, to refer them would certainly be a waste of time. He had attended to the petition, and he did not think there was a single object upon which it was in their power to act. Nothing was prayed for. The petitioners speak of the slave trade, and, in general terms, of the immorality of the times, as injurious to the state of society; and wish some means may be taken to prevent the growth of them. To refer a petition of this sort, therefore, to a committee would answer no purpose. He did not think they were more obliged to take up the business than if they had read the address in a newspaper. Mr. BAYARD said it might be inferred, from the anxiety and warmth of gentlemen, that the question before them was, whether slavery should or should not be abolished. The present was, however, very remote from such a question, as it was merely whether a memorial should be read a second time. The contents of this memorial, he said, were right or wrong, reasonable or unreasonable; if right, it was proper it should go to a committee; and if wrong, if so clearly absurd as it had been represented, where would be the evil of a reference for a report thereon? He did not like things to be decided in the moment of passion, but from the fullest consideration. In some countries they knew persons accused of crimes were condemned without a hearing; but there could be but one sentiment as to the injustice of such a proceeding. There could be no objection, therefore, upon general principles, to the reference of this petition. But it was said it was not to be sent, because of the general habits of this society. He believed there was no body of men more respectable; they were obedient, and contributed cheerfully to the support of Government; and, either politically or civilly speaking, as few crimes could be imputed to that body as to any other. This memorial, he said, had been treated as coming from an Abolition Society--it was a memorial of the General Meeting of the people called Quakers; and if only out of respect to that body, it ought to be referred. But it was said it did not contain matter upon which the House could act. Gentlemen seemed not to have attended to the subject-matter of the petition. He did not believe that the House had the power to manumit slaves, but he believed there was not a word in the petition which had a reference to slavery. The petitioners state, indeed, that a number of negroes, not slaves, for negroes may be free, had been taken again into slavery, after they had been freed by their masters. He wished to know whether the House had not jurisdiction over this matter? He was warranted by the constitution in saying they had, because that instrument says that no State shall make _ex post facto_ laws. It belonged to that House, therefore, to see that the constitution was respected, as it could not be expected from the justice of the individual States, that they would repeal such laws. It rested, therefore, with the Government of the United States to do it. Mr. B. read the clause of the constitution touching this matter, and concluded by reminding the House that this was not an ultimate decision, but merely a reference. Mr. JOSIAH PARKER said he was always inclined to lend a favorable ear to petitioners of every kind, but when a memorial was presented to the House contrary to the nature of the government, he should consent to its lying on the table or under it. No one, he said, could say they had a right to legislate respecting the proceedings of any individual State; they, therefore, had no power to decide on the conduct of the citizens of North Carolina in the matter complained of. Petitions had frequently come from Quakers and others on the subject; whereas this Government had nothing to do with negro slavery, except that they might lay a tax upon the importation of slaves. He recollected, when the subject was brought before the House in the first Congress held at New York, wishing to put a stop to the slave trade as much as possible, being a friend of liberty, he took every step in his power, and brought forward a proposition for laying a tax of ten dollars upon every slave imported. It was not agreed to; but there was only one State (Georgia) in which the importation of slaves was admitted. Since the establishment of this Government, Mr. P. said, the situation of slaves was much ameliorated, and any interference now might have the effect to make their masters more severe. He knew of no part of the constitution which gave them power over horse-racing and cock-fighting, nor could they interfere with respect to play-houses; and where they had no right to legislate, they had no right to speak at all. As the session had begun harmoniously, he hoped that harmony would not be broken in upon by such applications as the present. Mr. P. produced a precedent from the journals of 1792, where a memorial of Warner Mifflin, a Quaker, after being read, was ordered to lie on the table, and two days afterwards returned to the memorialist. Mr. NICHOLAS felt as much as other gentlemen from the Southern States on the subject of the present petition, but his feelings did not produce the same effect. He was not afraid of an interference from the United States with their property, nor of any investigations or discussions respecting it. He believed it would be to the honor of people holding property in slaves, that the business should be looked into. He thought such an inquiry would rather secure than injure their property. He did not think it was the interest of slaveholders to cover improper practices. He was satisfied, that in the part of the country where he lived, there was no disposition to protect injuries--no disposition to reject an inquiry, or to refuse to understand a complaint. They had been told that the state of the negroes, whose cases were mentioned in the memorial, might be produced by the fugitive law; they had before heard that this law had operated mischievously. It ought, therefore, to be inquired into. On inquiry, Mr. N. said, it would not be found the fault of the Southern States that slavery was tolerated, but their misfortune; but to liberate their slaves at once, would be to act like madmen; it would be to injure all parts of the United States as well as those who possess slaves. It was their duty, however, to remedy evils; they were unfortunately placed in a situation which obliged them to hold slaves, but they did not wish to extend the mischief. He should, indeed, be sorry if his possessing property of this kind, obliged him to cover the violation of another man's right; if this were the case, he should think it necessary that his property should be taken from him. He did not think it necessary, and he doubted not, if a fair investigation took place, that this kind of property would be brought into the situation in which every man of sense would place it. He was firmly of an opinion, that to appear to be afraid of an inquiry would do more harm to this property than a fair investigation. He trusted, therefore, the petition would be committed. Mr. BLOUNT hoped this memorial would not be committed. As this was not the first time the society of Quakers had come forward with petitions to the House, seemingly with no other view than to fix an odium on the State of North Carolina, he thought it his duty positively to contradict a fact stated in this memorial. It was stated that 134 persons, set free from slavery in North Carolina, had been since enslaved by cruel retrospective, or _ex post facto_ laws; they alleged that certain members of their society had done what no person was permitted to do. Mr. B. read part of a law of North Carolina, stating "that no negro or mulatto slave shall be set free, except for meritorious services, acknowledged by a license of the court; and when any person shall be set free contrary to this law, he may be seized and sold as a slave," &c. He also read a clause from another law, passed afterwards, stating that several persons having set at liberty their slaves contrary to law, and persons having taken up and sold them, are doubtful of the validity of the sale, and that this law is passed to do away all doubts of such validity. Mr. B. said these extracts proved the assertion untrue. Mr. GORDON lamented that this discussion had taken place, as it was certain that wherever interest is concerned, some degree of warmth will be produced; and when a petition was brought forward which might affect the property of many gentlemen in this House, and their constituents, it could not be expected they would hear it with the same calmness with persons wholly unconcerned about it. All that had been advanced in favor of the second reading of the petition was, the respectability of the persons presenting it, the opinion that would be entertained of the petitioners, if their petition was not referred, and the merits of the petition itself. With respect to the persons of the petitioners, he felt inclined to do them every justice; but he did not think this any reason for acting upon their memorial, unless some good consequence could arise from it, any more than if they were the vilest persons on earth. As to the opinion that might be entertained out of doors, as the petition was not examined, he was not afraid that the citizens of the United States would believe that the House could be so far lost to its duty as not to look into a question of this kind, but that it would be conceived, if rejected, that they had nothing to do with it. The other reason, the only material one, was to the merits of the petition. The gentleman from Delaware, (Mr. BAYARD,) who had examined the business with much coolness and ability, had stated that a certain _ex post facto_ law of North Carolina had occasioned grievances. Admitting there was such a law, what could the House do? Could they declare a law of North Carolina null and void? There would be no utility in this; but if there was a law in North Carolina that violated the constitution, there was a clear remedy in the law which organizes the Judical department of the United States, in which it is said, if any law of an individual State interferes with a law of the United States, a person has a right to take advantage of the law of the United States. There was no necessity, therefore, to call upon Congress for a remedy against this law. Indeed, he saw nothing in this memorial which called for their interference, and he was therefore against a reference, as a further discussion of it would only produce uneasiness in certain parts of the United States, without producing any good. Mr. RUTLEDGE observed, that notwithstanding all that had been said, considering the present extraordinary state of the West India Islands and of Europe, he should insist that "sufficient for the day is the evil thereof," and that they ought to shut their doors against any thing which had a tendency to produce the like confusion in this country. If this were not done, the confidence of a great part of the Union in the General Government would be weakened. In the Southern States, where most of their property consisted of slaves, and where the rest was of no value without them, there was already a prejudice existing that the Northern and Eastern States were inimical to this kind of property, though they were bound by the constitution from an interference with it; but when they heard of the House giving countenance to a petition like the present, it would increase their uneasiness. He referred to what had fallen from the gentleman from Delaware respecting _ex post facto_ law, and thought a court of justice the proper tribunal to settle that business. Mr. R. said he was indisposed, notwithstanding the high panegyrics which had been passed upon the body of Quakers, to withdraw the censures he had cast upon them. The gentleman from New York had doubted the charges which he had produced, and said such things could never be attempted by the body. It was true, they did not come in a body into his lodging to seduce his servant, but individuals did it. But why, he asked, do these men come here in a body? Because they believe that their presence will give more weight to their petition; so that they appeared in bodies, or as individuals, to answer their purposes. Gentlemen had charged the opposers of the petition with heat; he thought there was as much heat on one side as the other. Mr. EDMOND did not believe there was any real ground of irritation in the question; as no gentleman could suppose they were about to do any thing which was either unconstitutional, or which would affect their property. Whether the persons who presented the memorial are virtuous or vicious, was of no consequence, since justice was due to both classes of men. They had brought a petition before them, and they ought to consider it. It was addressed to their honesty or justice; if the facts were claims upon their honesty or justice they should be attended to; and not only attended to, but, if possible, relief granted. It was stated that there were a number of persons held in bondage who were justly entitled to liberty. This fact called for examination; and a question arose, if it were established, whether that House could afford redress. A gentleman from North Carolina (Mr. BLOUNT) had stated that the fact was not true; it was certainly, therefore, worth while to be inquired into. Another gentleman had said, if the fact were as stated, they had no power to act; and a third was of opinion that, by the constitution, redress might be afforded. This diversity of opinion showed the necessity of an investigation of the subject, in order to determine the jurisdiction of the House. He wished it for another reason. It had been stated, that if this petition were attended to, it would open a door to faction and mischief. Can it have this effect? These people bring forward a petition stating a number of facts; they certainly do not come forward for the mere design of exciting disorder in any quarter. If the House say they will throw their petition under the table, would not such treatment give the factious some ground of clamor by which to sow dissension? But if, on the contrary, they coolly looked into the petition, and reported thereon, would it not stop the mouths of these people? It certainly would; since they could not then say common justice was refused to the petitioners. Again; having once investigated the subject fully, if petitions of a similar kind should hereafter come forward, it would be reasonably said, this matter has already been taken up and fully decided upon; and, therefore, we will not again go into it. Until this was done, the factious would doubtless have cause of complaint. Mr. BLOUNT said, several gentlemen who had spoken on this subject seemed to express themselves as if they believed there was no punishment for individuals reducing to slavery persons who had been manumitted. He read an extract from a law, passed in 1779, in North Carolina, by which the punishment of death is awarded against such an offence. Mr. MACON read the proceedings of the House on the petition respecting the kidnapping of negroes, in order to show that the gentleman from New York (Mr. LIVINGSTON) had misstated the issue of the business. The last report on the subject was that it would be best to leave the regulation of the subject to the Legislatures of the several States. Mr. M. allowed that his reflections upon the whole body of Quakers were too general, and he had no hesitation in retracting them; but he believed a number of them were guilty of the charges brought against them by the gentleman from South Carolina. Mr. THATCHER said, if, when the motion was first made, he had been against it, from what had fallen from gentlemen on the subject, he should now be in favor of it; for, notwithstanding they opposed the second reading of the petition, they were filing off in squads to read it, and ready to fight for a sight of it. He believed, therefore, they had some reasons for opposing the second reading, which did not appear. He referred to what had been said by the gentleman from North Carolina, as to the fact stated in the petition, and said that, notwithstanding the laws which he had read, the fact might be true; but that this very doubt about the fact was an additional reason for going into the inquiry. Gentlemen had said, however good and virtuous the petitioners might be, it ought to have no effect upon the petition; if this were true, he hoped when they were represented as the worst of men, that representation was not meant to influence their decision on the question. Mr. T. could not conceive for what purpose they were carried to Europe, to witness the scenes which had taken place there for the last ten years. Was this, he asked, the state of society? If he thought so, if it had the faintest resemblance of what was taking place there, he would fly from it to the uttermost parts of the earth, and there make his habitation. Mr. T. wished an inquiry to take place; there was a part of the United States in which slavery was tolerated--some of the members from those parts thought it not right; there were other parts of the Union which disclaimed it. These two opposing principles were like two opposite powers in mechanism, which produced rest; but, the more frequently the subject was looked into, the more mitigated would be its effects. The question was taken for the second reading of the petition, and carried--53 votes being in the affirmative. Mr. GALLATIN moved that it be referred to a select committee. Mr. COIT wished it to be referred to the Committee of the Whole, to whom was referred the petition on the subject of kidnapping negroes, &c. Mr. RUTLEDGE thought a select committee would be best, as stage-plays, cock-fighting, horse-racing, and other evils, would, of course, be considered. The question for reference to a select committee was put and carried--59 members being in the affirmative. Five members being agreed upon to form the committee, the SPEAKER named Messrs. SITGREAVES, NICHOLAS, DANA, SCHUREMAN, and S. SMITH, for the purpose. The House adjourned. FRIDAY, December 1. A new member, to wit: JOSEPH HEISTER, returned to serve in this House as a member for the State of Pennsylvania, in the room of George Ege, who has resigned his seat, appeared, produced his credentials, and took his seat in the House. Several other members, to wit: from Pennsylvania, ANDREW GREGG; from Kentucky, THOMAS T. DAVIS; and from North Carolina, NATHAN BRYAN, and DEMPSEY BURGES, appeared and took their seats in the House. The Clerk then informed the House that he had heard from a member of the Senate that the SPEAKER was indisposed; so much so that he was not able to communicate his indisposition to the House in writing. Mr. DENT said, this being the case, he should move that the orders for this day be further postponed till Monday; which motion being agreed to, the Clerk, on motion, adjourned the House till Monday morning, at 11 o'clock. MONDAY, December 4. THOMAS SUMTER, from South Carolina, appeared, and took his seat. _Publication of Debates._ Mr. DWIGHT FOSTER presented the petition of Thomas Carpenter, stating that he was the editor of the _American Senator_, published during the session of Congress ending in March last; that, at the commencement of that session, he presented a memorial to the House, praying its support of his work; that the House had declined supporting it as a body, but receiving individual assurances of support from many of the members, he had been induced to engage in the work; but the event had proved unfavorable to him. He hoped now, therefore, that he should be recompensed, by the House engaging to take three copies for each member of the work he proposed to publish this session, (provided he met with the support he prayed for,) which, computing the session at eighteen weeks, he supposed would not amount to more than $2,250. Mr. D. FOSTER moved that this petition be referred to a select committee. Mr. COIT objected to a reference. The House, he said, had so often determined to have nothing to do with the publication of the debates, that he thought it time to have done with the subject. He hoped, therefore, the petition might lie upon the table. Mr. FOSTER and Mr. THATCHER spoke in favor of the committal; and the motion was put and carried, and a committee of three members appointed to report thereon. THURSDAY, December 7. _Amy Dardin._ Mr. T. CLAIBORNE said, that during the last Winter, a report had been made by the Committee of Claims, on the petition of Amy Dardin, unfavorable to the petitioner, which, after full discussion, had been disagreed to by the House; and on the 24th of February a motion for appointing a committee to bring in a bill for her relief was made and committed to a Committee of the Whole, but for want of time had not been acted upon. He now wished to bring the matter before the House, and for that purpose moved that a committee be appointed to bring in a bill for the relief of Amy Dardin. This motion met with opposition. It will, perhaps, be recollected that this, though a strong claim, in point of justice, is directly in the face of the Limitation Act. Messrs. MACON, SITGREAVES, and HARPER, wished the matter to go again to the Committee of Claims, as many members now in the House were unacquainted with the merits of the claim; and the latter gentleman, because he thought the House had been surprised into a decision, contrary to fifty other determinations on similar questions, which ought now to be reversed. Mr. CLAIBORNE opposed this course, and trusted the House would again be influenced by the justice of the claim, to act as they had heretofore done, by passing a bill for the relief of the petitioner. Mr. GALLATIN thought it would be best to commit the business to the same Committee of the Whole to which they had yesterday referred a report of the Committee of Claims on the subject of excepting a certain description of claims from the operation of that act. The business was, however, closed by Mr. CLAIBORNE'S withdrawing his motion for the present. MONDAY, December 11. Two other members, to wit: JAMES GILLESPIE and JOSEPH MCDOWELL, from the State of North Carolina, appeared and took their seats. TUESDAY, December 12. _Acts of Limitation._ Mr. GALLATIN called for the order of the day on the report of the Committee of Claims, to whom it was referred to inquire into and report on the expediency or inexpediency of designating certain claims against the United States to be excepted from the operation of the acts of limitation; which being agreed to, the House accordingly resolved itself into a Committee of the Whole on the subject, Mr. DENT in the chair. The report was read, as follows: The Committee of Claims who were "instructed to inquire into, and report on, the expediency or inexpediency of designating certain claims against the United States, to be excepted from the operation of the acts of limitation," report: That, in obedience to the orders of the House, they have made all the inquiries which to them appear necessary; that they have attentively and deliberately considered the subject referred to them; and are of opinion that it would not be expedient to designate any species of claims against the United States which are now affected by the acts of limitation, to be excepted from the operation of those acts. In considering this subject, a review of the situation of the United States, as respected their finances, during the period when most of the demands originated, was requisite. It was also necessary to ascertain what measures had been adopted by Congress, both under the old and under the present government, to bring all the demands against the States to a liquidation and settlement. It will be recollected, that, at the commencement of the war, the United States were destitute of money; and during a long period of years afterwards, were obliged to rely principally on credit, for carrying on all their important operations. Having, at that time, no settled National Government, a regular system for conducting public business, especially money transactions, depending on credit, was not to be expected. Great numbers of individuals were necessarily invested with the power of binding the public by their contracts. Almost every officer of the Army, whether in the Commissary's Department or otherwise, in different stages of the war, had it in his power to contract debts legally or equitably binding upon the United States. We find Congress, at various times, during the war, endeavoring to make arrangements which should prevent an undue use of the powers vested in individuals, and the dangerous consequences to which the Government was thereby necessarily exposed. The acts of the 5th of March, 1779, and of the 23d of August, 1780, were calculated to limit the public responsibility in such cases. After the peace, and under the old Government, periods were prescribed, within which claims of certain descriptions, and finally all unliquidated claims, were to be exhibited for settlement, or to be for ever thereafter barred. It must be acknowledged by all, that during those periods every provision which could rationally have been expected was made for the accommodation of individuals having claims against the public, to enable them to obtain proper settlements of their demands. The journals of Congress under the confederation will abundantly justify this remark. Commissioners were appointed, with special or general powers, to settle the claims of individuals in all the departments; and, in every instance, the powers given were plenary and explicit. Sufficient time was given for every one to obtain information and pursue his remedy; and ample opportunity was given for all to substantiate their claims, or, at least, to present abstracts of them, which would have prevented their being foreclosed by the acts designed eventually to operate upon them. The cases cannot be numerous, in which the want of opportunity to bring forward claims can be justly pleaded as an excuse for the omission. By the act of the 17th of March, 1785, all persons having unliquidated claims against the United States were required, within twelve months, to exhibit particular abstracts of such claims, to some of the Commissioners in the State in which they respectively resided, who were sent and empowered to settle accounts against the United States, under the penalty or condition that accounts not so presented, should be thereafter settled only at the Treasury. By another act of Congress, of the same year, viz: November 2d, 1785, all persons having claims for services performed in the military department, were directed to exhibit the same for liquidation to the Commissioners of Army accounts, on or before the first day of August, then ensuing. By that act it was expressly resolved, that all claims, under the description above mentioned, which might be exhibited after that period, should be for ever thereafter precluded from adjustment and allowance. And it was provided, by the act of July 23d, 1787, that all persons having unliquidated claims against the United States, pertaining to the late Commissaries', Quartermaster's, Hospital, Clothier's, or Marine department, should exhibit particular abstracts of such claims to the proper Commissioner appointed to settle the accounts of those departments, within eight months from the date of the said act; and all persons having other unliquidated claims against the United States, were to exhibit particular abstracts thereof to the Comptroller of the Treasury of the United States, within one year from the date thereof; and all accounts not exhibited as aforesaid, were to be precluded from settlement or allowance. These regulations were adopted by Congress under the old Government. Great care was taken to have them extensively published, so that every individual who was interested might be informed of their existence and operation. Under the present constitution there has not been wanting a disposition to relieve certain individuals whose claims were considered as peculiarly meritorious, which had been affected by the acts above recorded. With this view, in March, 1792, two several acts of Congress were passed, suspending for two years the operation of the resolutions of Congress of November 2d, 1785, and July 27th, 1787, so far as they had barred or might be construed to bar the claims of the widow or orphans of any officer of the late army, to the seven years' half pay of such officer; or the claims of any officer, soldier, artificer, sailor, and marine, of the Army of the United States, for personal services rendered to the United States in the military or naval departments. In consequence of these suspensions, many claims were exhibited, and allowed against the Government. There is reason to apprehend, in some instances, the public were defrauded for want of proper pre-existing checks and evidences of payments being made. This suspension continued for the term of two years, which was till March, 1794. In the mean time, viz: on the 12th of February, 1793, the act "relative to claims against the United States, not barred by any act of limitation, and which had not been already adjusted," was passed by Congress, after a serious and attentive consideration of the subject. By that law it was provided, "that all claims upon the United States for services or supplies, or for other cause, matter, or thing, furnished or done, previous to the 4th day of March, 1789, whether founded upon certificates, written documents from public officers, or otherwise, which had not already been barred by any act of limitation, and which should not be presented at the Treasury before the first day of May, 1794, should for ever after be barred and precluded from settlement or allowance." But this was not to be construed as affecting Loan Office certificates, certificates of final settlements, indents of interest, balances entered on the books of the Register of the Treasury, registered certificates, foreign loans, or certificates issued under the act making provision for the public debt of the United States. One other act, passed the 3d day of March, 1795, provided that Loan Office certificates, final settlements, and indents of interest, then outstanding, should be presented at the office of the Auditor of the Treasury, on or before the first day of January, in the present year, 1797, or be for ever after barred or precluded from settlement or allowance. The summary contains a general view of the principal acts of limitation, by which claims against the public have been affected. From an attentive consideration of them, and of the circumstances under which they were enacted, the committee are fully impressed with an opinion that it would not be expedient to suspend their operation. Some remarks extracted from a report heretofore made to Congress, are subjoined by the committee, as pertinent to the subject. It was essential to the public administration that the extent of just demands upon the Government should be, within a reasonable period, definitely ascertained. It was essential to public safety and to right, in relation to the whole community, that all unsettled claims should be made known within a time when there were yet means of proper investigation, and after which the public responsibility should terminate, and the possibility of charging the Government by collusive and fictitious contracts, should be at an end. The justice as well as policy of acts of limitation, under such circumstances, cannot be doubted.[27] The situation of no country ever presented a more clear necessity for, or a more competent justification of, precautions of that nature. And all the reasons for adopting them operate to recommend unusual caution in departing from them, with the additional force of this circumstance, that the subsequent lapse of time has increased the difficulties of a due examination. The accounts of a considerable number of officers, who had it in their power to bind the public by their contracts, and who were intrusted with large sums of money for fulfilling their engagements, remain unsettled. Some of those persons are dead; others have absconded; the business has been conducted by others with so little order as to put it out of their power to render a proper statement of their transactions. The books and papers of others, who had extensive trusts, have been destroyed, so as to preclude the possibility of settlement. Hence it must appear that the Government would, in a great number of cases, be destitute of the means of repelling unfounded and even satisfied claims, for want of documents and vouchers, which only could have resulted from a due settlement with those officers, and from the possession of their books and papers. It might be inferred without proof, and it has appeared in the course of business at the Treasury, that it was a practice with certain public officers, on obtaining supplies, to give receipts and certificates for them, and when they made payments, either partially or totally, to take distinct receipts from the parties, without either endorsing the payment upon the original vouchers or requiring a surrender of them. Hence it would often happen that parties could produce satisfactory vouchers of their having performed services and furnished supplies, for which, though satisfaction may have been made, the evidences of it would not be in the possession of the Government. And hence, from relaxations of the limitation acts, there would be great danger that much more injustice would be done to the United States than justice to individuals. The principles of self-defence, therefore, require and justify an adherence to those acts generally; and there are not any particular species of claims, which, in view of the committee, ought to be exempted from their operation. Those which have been most frequently referred to by some members of the House, are such claims as include the arrearages of pay and other emoluments to officers and soldiers of the late army, &c. Pursuant to an order of the House at the first session of the present Congress, a report was made to them, having special reference to this subject. It was considered in Committee of the Whole, and agreed to by the House on the fifth day of February, 1796. To that report and the documents accompanying the same, the committee ask leave to refer the House, and respectfully submit the whole subject to their consideration. WEDNESDAY, December 13. JOHN WILKES KITTERA, from Pennsylvania, appeared, and took his seat in the House. FRIDAY, December 15. A new member, to wit, PELEG SPRAGUE, from New Hampshire, in place of Jeremiah Smith, resigned, appeared, produced his credentials, was qualified, and took his seat. THURSDAY, December 24. _Amy Dardin._ Mr. T. CLAIBORNE moved that the report of the Committee of Claims, on the petition of Amy Dardin, be referred to a Committee of the Whole. The SPEAKER said, that the report having been negatived at a former session, and a bill brought in for her relief, but not decided upon, the proper motion would be to appoint a committee to bring in a bill. Mr. CLAIBORNE made that motion, which Mr. COIT moved to be referred to the Committee of Claims, in order that they might report the facts relative to the case, which were not generally known. Mr. CLAIBORNE objected to this; and Mr. BALDWIN suggesting the propriety of committing it to the same Committee of the Whole, to whom were referred the subject of considering the expediency of excepting certain claims from the operation of the limitation acts, this course was adopted. FRIDAY, December 22. _General Kosciusko._ Mr. DAWSON wished to call the attention of the House to a subject, which, he doubted not, would interest the feelings of every member. The subject he alluded to was the situation of General Kosciusko. It was a fact well known to every man in this country, it was a fact known to the world, that this brave man entered into the service of the United States, at an early period of our Revolutionary war. When this service was ended, he received from the Government a certificate of what was due to him. He returned to Poland, his native country; there, animated by the same spirit which had led him to take a part in our struggle for independence, he endeavored to overthrow the existing tyranny, and to introduce in its place liberty and independence. For some time his attempt seemed likely to be crowned with success; but, on the fatal 10th of October, 1794, overpowered by numbers, he was defeated and taken prisoner. Covered with wounds and with glory, he was conducted to the prison of Petersburgh. When he was released from thence, he immediately set out to this country, here to spend the remainder of his life. He was now within this city; but, from the wounds he had received in his arduous but unsuccessful conflict, he was unable to walk or to attend to any business. The unfortunate day on which he was taken prisoner, he lost his all, and with it the certificate of the services rendered to the United States. He was unable, therefore, to obtain a settlement of his account at the Treasury. To set aside all difficulty in the matter, Mr. D. proposed to offer a resolution to the consideration of the House; and as it was justice only which he sought for this brave man, he doubted not that a spirit of justice would ensure its adoption. It was to the following effect: "_Resolved_, That a committee be appointed to inquire and report whether any, and, if any, what provisions are necessary, to obtain payment of the claim of Gen. Kosciusko on the United States." Mr. J. PARKER seconded the motion. He hoped the resolution would be agreed to, and that immediate attention would be paid to the unfortunate gentleman, as he believed, except he made use of the grant made to him by the Emperor of Russia, which, he believed, he was disinclined to do, for considering his predecessor as the chief cause of his own misfortunes, and those of his country, he did not wish to be under obligations to him. The certificate given to the General on his departure from hence, was for $12,800, upon which he had received only one year's interest. He hoped, therefore, as he had the misfortune to lose his certificate, at the time he was taken prisoner, that the House would take such measures as should enable him to receive the amount of his certificate, with the interest due thereon. Mr. COIT moved that the resolution should be committed to the Committee of Claims, but afterwards changed his motion so as to make that committee the committee to inquire and report, instead of a select committee. He professed to have no other object in these motions than that this claim should take the same course with other claims. The motion was supported by Messrs. ALLEN, J. WILLIAMS, MACON, and EDMOND. It was opposed by Messrs. J. PARKER, LIVINGSTON, GALLATIN, BROOKS, NICHOLAS, HARPER, SHEPERD, OTIS, PINCKNEY, SWANWICK, S. SMITH, T. CLAIBORNE, and MCDOWELL. The motion for a reference to the Committee of Claims was lost--59 to 33. Mr. PINCKNEY said, that as this claim was different from most others which came before that House, and having himself had something to do in the business, he would state to the House what he knew of it. Previous to General Kosciusko's return to Poland, whilst he was in Germany, he applied to the Polish Ambassador in London, by letter, requesting him to make application to the American Minister there for payment of a part of the money due to him from the United States. The mode of transacting this business was this: The interest arising from the certificate granted to the General, was made payable in Paris; but from the change which took place in the French Government, the General did not know how to receive it there, which was the reason of his making application, through the Polish Minister, to him (Mr. P.) in London. Mr. P. wrote to the American Minister in Paris for an order on the bankers of the United States in Holland, but having in the mean time received a letter from Gen. Kosciusko, requesting the money to be sent for him to Ratisbon or Leipsic, he (Mr. P.) sent an order to Amsterdam, requesting the bankers there to transmit the money either to Ratisbon or Leipsic, as the exchange should be most advantageous. In the interim General Kosciusko returned to Poland, and he supposed he then had no time to attend to this business. He never heard any more upon the subject until he saw the General in Philadelphia, when he found this money had not been received by him; so that he supposed it yet lay in the hands of the Leipsic or Ratisbon banker. Finding this to be the case, Mr. P. immediately wrote to the banker at Amsterdam, requesting him to redraw the money, and to transmit it here for the General's use. But, as he might, in the mean time, stand in need of it, it might be proper in the United States to anticipate its return, by settling the account with the General. He hoped in whatever way this business was effected, it would be in such a way as not to wound the feelings of a man who had deserved so well of this country. On a suggestion of Mr. SITGREAVES, instead of appointing a committee, the Secretary of the Treasury was directed to make a report what "Legislative provision was necessary, &c." This motion was carried by 49 to 40; but whatever difference of opinion there was in the House, as to the mode of doing the business, there seemed to be but one sentiment, as to the propriety of complying with the spirit of the resolution. WEDNESDAY, December 27. SAMUEL JORDAN CABELL, from the State of Virginia, appeared, and took his seat. _Count de Grasse._ Mr. LIVINGSTON, from the committee to whom was referred the petition of the daughters of the late Count de Grasse, made a report, which stated that the sum heretofore allowed by Congress was intended only as a temporary provision, until the events of the war should permit them to take possession of an estate in St. Domingo; that the facts formerly stated showed that the most important services were rendered to the United States by their father, from motives the most honorable, under the greatest responsibility, and at a risk the most hazardous that could be encountered by an officer of rank and reputation; that, with a recollection of these services, it would consist neither with the honor nor justice of the United States to refuse an adequate provision for the orphan children of the man who rendered them. The committee, therefore, recommended that a certain sum should be granted to each of them, annually, for their lives. The report was twice read, and committed for Monday. THURSDAY, December 28. _Gen. Kosciusko._ The SPEAKER laid before the House a letter and report from the Secretary of the Treasury, in pursuance of a resolution of the House, of the 23d instant, relative to the claim of General Kosciusko. The report states, that the accounts of the General were settled at the Treasury in 1784, when a certificate was issued to him for $12,280 49, bearing an interest of six per cent. from the 1st of January, 1784, which was stipulated by a resolution in February following, in common with the interest due to all the foreign officers, to be paid annually at Paris; that in May, 1792, moneys were granted by Congress to discharge the principal and interest of these debts, at which time it was supposed that all the officers had received their interest to the 1st of January, 1789; but it now appears by the banker's account at Paris, that no interest had been received by General Kosciusko for four years, viz.: from 1785 to 1788. Sufficient funds to pay the interest from 1789 to 1792, were, in 1792, placed in Amsterdam, subject to the disposal of our Minister at Paris; that by his direction a bill for the amount was remitted to Mr. Pinckney in London; but, pursuant to the direction of General Kosciusko, Mr. Pinckney wrote to the banker at Amsterdam to remit the amount to Leipsic or Dresden. That in September, 1792, a notification was published, that provision had been made for paying the principal of the debt due to foreign officers, on application at the Treasury, after the 15th of October following, and that the interest upon their demands would cease after the last day of December in that year. That though the certificate issued to the General is stated by him to have been lost or destroyed, yet the powers of the officers of the Treasury are competent to the payment of $12,280 54, the principal, and $2,947 33 interest, for the years from 1785 to 1788, on receiving a bond of indemnification from the General: but that they cannot advance the interest supposed to have been remitted to Leipsic or Dresden, though payment will be immediately made for any sum which may be hereafter redrawn, and credited to the United States at Amsterdam; nor is it in the power of the Treasury to allow any interest on said principal since the 1st January, 1793. On motion of Mr. DAWSON, this report was referred to a Committee of the Whole for Monday. TUESDAY, January 2. JOHN FOWLER, from the State of Kentucky, appeared and took his seat. _General Kosciusko._ Mr. DAWSON moved the order of the day on the report of the Secretary of the Treasury on the claim of Gen. Kosciusko; which motion being acceded to, the House resolved itself into a Committee of the Whole, Mr. KITTERA in the chair, and the report having been read, Mr. DAWSON said, when he had the honor of presenting this business to the House, he hoped the proposition he then submitted would have been agreed to in that way, which, in his opinion, would have been most honorable to the United States, and most agreeable to the person concerned. In this hope he had been disappointed; but, though they differed as to the mode of doing the business, there was but one opinion as to the business itself. He had now a resolution to submit to the consideration of the House, which he trusted would meet with no opposition. It would be found, by the report of the Secretary of the Treasury, that the accounting officers were ready to pay to General Kosciusko $12,280 principal, and $2,947 interest, from 1785 to 1788. To recover those two sums, therefore, there would have been no occasion for application to that House. It also states, that a bill had been remitted to our Minister at London, for the interest from 1789 to 1792, but which money was afterwards, by direction of the General, ordered to be remitted to Leipsic or Dresden; but it did not appear that this order had been complied with. It was clear, however, it was never received by him, nor had he given any person a right to receive it. He hoped, therefore, as the money lay at Amsterdam, Leipsic or Dresden, and could at any time be got by the United States, there would be no objection to pay the General that sum at this time. It was further stated in the report, that in September, 1792, a notification was published, informing all the foreign officers that provision was made at the Treasury for the payment of the principal of their debts, and that the interest thereon would therefore cease after the last day of December in that year. Upon examination he did not find that this arrangement was founded upon any law; it was, therefore, a regulation agreed upon by the Treasury Department, and ought not to operate to the injury of persons who were ignorant of it. It was well known, that, from the peculiar situation of General Kosciusko at the time, that he could not hear of it; and the truth was, he never did hear of it until he arrived in this city. He hoped, therefore, there would be no objection to the payment of the amount of the certificates, with interest to the present time. To effect this purpose, he proposed the following resolution: "_Resolved_, That it is the opinion of this committee, that the Secretary of the Treasury be authorized and directed to pay to General Kosciusko, the interest of six per cent. per annum, on $12,280 54, the amount of the certificate received by him from the United States, and now lost, from the 1st of January, 1789, to the 31st day of December, 1797." This resolution was opposed by Messrs. MACON, COIT, and J. WILLIAMS. They were opposed to interest being paid up to the present time, and wished, if any provision were made for paying interest beyond the time fixed by the notification of the Treasury, that the regulation should be a general one, and extend to all other foreign officers. They were also against paying the interest, which had been transmitted to Paris for General Kosciusko's use, and which, by his direction, was afterwards remitted to Leipsic or Dresden, as it most probably lay there, and would be paid to his order without their interference. The motion was advocated by Messrs. VENABLE, PINCKNEY, J. PARKER, HARPER, GALLATIN, and T. CLAIBORNE, and was finally agreed to without a division. WEDNESDAY, January 3. _Duties on Distilled Spirits._ PEACH BRANDY. Mr. HARPER moved the order of the day on the bill to amend the several acts for laying a duty on spirits distilled within the United States, and on stills; which motion being agreed to, the House resolved itself into a Committee of the Whole on the subject, Mr. KITTERA in the chair. The bill having been read, Mr. MACON said, that the report of the Committee of Ways and Means, on the proposition for allowing distillers to take licenses for a week, having been referred to that committee, if it were taken up at all, this was the proper time. He should, therefore, propose an additional section to the bill, to embrace this objection. Mr. M. accordingly presented a section to allow of weekly licenses. This motion produced a considerable debate. It was opposed by Messrs. SEWALL, GRISWOLD, GALLATIN, GORDON, and BROOKS, on the ground that the duty now paid upon spirits distilled from fruit (which description of distillers the regulation was avowedly intended to accommodate) was not equal to that paid by distillers of grain, as the duty on spirits distilled from fruit was not more than two and a half cents per gallon, whilst that on spirits distilled from grain paid seven cents; and if the amendments were agreed to, this inequality would be increased--for persons who took a license for a week, by preparing their materials beforehand, and working night and day, would finish their business within that time, which otherwise would have required a fortnight; by which means the duty would be reduced from six cents per gallon, on the capacity of their stills, to four; that it would increase the temptation to fraud, as that temptation was strong, or the contrary, in proportion to the length of time for which a license was taken; as a person taking a license for a fortnight, by working his still one day past the time specified in his license would gain half a cent a gallon on the capacity of his still, whilst he who took out a license for six months would only gain half that sum. If licenses for a week were allowed, the temptation would therefore be increased; that such a regulation would greatly augment the duties of excise officers, without rendering any material advantages to individuals--since, if the owner of a still of fifty gallons took out a license for a fortnight, when a week might have served, he would only pay a dollar more than he would have paid for a week; that when this scale of duties was made, reference was had to the situation of persons who would be obliged to take out a license for a fortnight, though they might not have fruit to employ a still more than a few days, and a rate proportionably low adopted; that the same reasons which were urged for allowing licenses for a week might be urged for allowing one for two days; that, though there might be some inconveniences experienced by the distillers of fruit, (as it was not doubted there might be in other parts of the law,) yet, as it was only just got into operation, it would not be right to enter into the proposed regulation, but defer it to the period when it would most probably be necessary to go into a review of the whole law. The motion was supported by Messrs. MACON, HARRISON, HARPER, J. PARKER, NICHOLAS, VENABLE, R. WILLIAMS, NEW, DENNIS, T. CLAIBORNE, and CLAY. It was asserted that the law as it now stood excluded four out of five of the owners of orchards, in the Southern States, from distilling their early fruit at all; that their peaches ripened hastily, and as hastily rotted, if not made use of. Persons who had only fruit to employ their stills for three or four days, sooner than take a license for a fortnight, suffered their fruit to rot; and to allow licenses for a week would produce a considerable augmentation of the revenue, since those persons only would take such a license, who, if that privilege were not allowed, would not take out a license at all, or such as had occasion to distil a few days longer after their two weeks' license was expired. It was unjust to require a man, who had only a small orchard, and occasion to use a still but a few days, to pay a much higher duty upon his brandy than his more opulent neighbor. It was not so inconsiderable an object as gentlemen supposed, since it had not reference to one license only--farmers in the Southern States having occasion to take out separate licenses for their early, their middle, and their latter fruits; and this regulation would not open a door to fraud, as was supposed. It was an undeserved imputation upon the characters of persons concerned in this business, to suppose they could be tempted to defraud the revenue for the sake of half a cent per gallon upon what they could distil in a day. The penalties consequent upon fraud, if the virtue of the persons concerned could not be relied upon, were sufficient to guard against them; and, if they were not, it could not be expected, as some gentlemen seemed to suppose, that the excise officers should overlook the conduct of every distiller. If they were to be so inspected and scourged, an attempt to defraud the revenue could scarcely be blamed; and, except it were the intention of gentlemen to crush this domestic manufacture, no reasonable objection could be urged against the proposition. The objections which had been urged proved the ignorance of gentlemen in respect to this branch of business; for though the excise officers would have some trouble in issuing licenses, it was believed they would be well satisfied to encounter it, since their profits were in proportion to the quantity of spirits distilled; and though this law had been but a short time in being, the last season, having been a scarce fruit season, had given a good opportunity of trying it. As the application for this amendment was seconded by the whole of the Southern country, it was entitled to respect, and ought not to be branded with being a fraudulent design upon the revenue. In the course of the debate, Mr. GALLATIN called upon gentlemen acquainted with the subject, to say what was the quantity of spirits which could be distilled from peaches in a week by a still of the capacity of thirty, forty or fifty gallons, with a view to show that this species of spirits paid less at present than spirits distilled from grain. Mr. CLAY answered this inquiry, by saying, that a still of fifty gallons would distil from five to seven gallons of brandy a day. If the weather was wet, and the peaches rotted quickly, not more than five; but when the weather was dry, and the peaches sound, seven gallons might be produced. The question on the amendment was at length put and carried--45 to 37. Mr. DENNIS said, he wished to try another principle in this bill. The law at present required an annual entry of stills, whether they were used or not, which occasioned persons frequently to ride twenty or thirty miles to make the entry, when they had no intention to make use of their still; and not unfrequently, from not meeting with the officers at home, this journey was taken two or three times over. Indeed, he believed, more penalties had been incurred on account of this regulation than any other, and he looked upon it as a useless regulation. When a still was once entered, he thought it was sufficient, and no future entry ought to be required, except when a still was about to be made use of, or when it was transferred into other hands. Mr. D. proposed a section to this effect; but after some objections to the introduction of so important a provision into this bill, (which before it could be decided upon would require considerable discussion,) by Messrs. HARTLEY, GALLATIN, and HARPER, he agreed to withdraw it for the present. It having been agreed to fill the blank of the sum per gallon to be paid on the capacity of a still, when a license was taken for a week, with _four cents_, the committee rose; the House took up the amendments, agreed to them, and the bill was ordered to be engrossed for a third reading to-morrow. FRIDAY, January 5. _Count de Grasse._ Mr. LIVINGSTON called for the order of the day on the bill for granting an annuity to the daughters of the late Count de Grasse; which being agreed to, the House resolved itself into a Committee of the Whole on the subject, Mr. DENT in the chair; and, after a number of desultory observations, the blanks were filled up, viz: the time for which the annuities should continue was fixed at five years, and the sum per annum to be allowed at $500 each. The first question was determined by a considerable majority, there being 57 votes in favor of it; the latter was carried--46 to 38. The committee then rose and reported the amendments. They were all agreed to without a division, except the sum to be allowed per annum. When that question was put, Mr. J. WILLIAMS hoped it would not be agreed to. When the subject was before under discussion, the question on $500 and $400 had been negatived. $500 a year for the four daughters for five years, he said, would be $10,000. He thought this a very serious sum. He again adverted to the situation of many of our own citizens, and called for the yeas and nays upon the question. Mr. HARPER asked whether, if, when the Count de Grasse was solicited to remain with the fleet under his command in the Chesapeake, at his own risk and responsibility, he had asked as a condition that on some future day $10,000 should be granted to his daughters, would it not have been complied with, if it had been ten times that sum? And ought his descendants to be more hardly dealt with because their father had the generosity and magnanimity not to make the demand? He trusted not.[28] After some observations in favor of concurring with the Committee of the Whole in their vote, by Messrs. THATCHER, BROOKS, LIVINGSTON, and GORDON; and against it by Messrs. VARNUM, MCDOWELL, and MACON--the former of whom said that the clergy, in his part of the country, had not more than three hundred and thirty dollars a year; and the latter gentleman produced three cases of our own citizens who had lost their lives in the service of the United States, whose families had been much more hardly dealt with, viz: the family of a Lieutenant Colonel, who had four hundred and fifty dollars a year granted them; that of a Major, three hundred dollars a year; and that of the Marshal of Georgia, whose family had a grant of two thousand dollars. The yeas and nays were taken--40 to 43. The question for allowing five hundred dollars a year being negatived, four hundred was proposed and carried--46 to 34. The question being on the bill being engrossed for a third reading, Mr. BLOUNT called for the yeas and nays upon it. It was carried--55 to 25. MONDAY, January 15. LEMUEL BENTON, from the State of South Carolina, appeared, and took his seat. _Expenditure for Naval Service._ Mr. LIVINGSTON called up for consideration and decision the resolution which he had laid upon the table a few days ago, for the appointment of a committee of inquiry into the expenditure of money which had been appropriated for the naval service. The House having agreed to take up this business-- Mr. HARPER said, he believed that the appointment of such a committee was very unusual, without having some ground stated to the House for the proceeding. A vote of this kind would imply a censure upon the conduct of our public officers, which certainly ought not to be done hastily, or without first having, at least, some ground of suspicion laid before them upon which to act. The House had not yet received the statements which had been called for relative to this business; they were directed to be laid before the House in the last week in January, and might, therefore, be soon expected. [Several gentlemen said it was the first, and not the last week in January, in which the accounts had been ordered to be laid before the House.] Mr. H. said the delay, he supposed, had been occasioned by the officers having been obliged to remove from the city during the fever. He had, however, been informed that these statements would be ready in a few days. And would it not be extraordinary, he asked, if, before they received these statements, they were to appoint a committee of inquiry? He thought it would. He believed the officers of this department of Government were very desirous of the inquiry taking place; but this was not a sufficient reason for the House to proceed in the business without having first some ground to suppose the money had been misapplied, and this he believed could not be ascertained until the expected statements were before the House. When these were looked into, it was possible the House might be satisfied with respect to the expenditure of the money, and it would, therefore, be improper to appoint a committee to inquire into a matter which might so shortly appear satisfactory. If, on the other hand, these accounts should not be satisfactory, he would readily concur in the appointment of a committee of inquiry. Mr. J. WILLIAMS said, the gentleman from South Carolina ought to recollect that the inquiry was produced by a further appropriation being called for. It might be best to defer the inquiry until the accounts which had been called for were laid before the House; and he should have been satisfied with the business taking that course, if a further appropriation had not been called for in the mean time. But when they are called upon to appropriate a further sum of money for any object, it was natural to inquire what was become of that already voted; and the only way of doing this was to appoint a committee who would look into all the different statements which had from time to time been laid before the House, and those which might shortly be communicated, and state their opinion thereon to the House. He thought those gentlemen who were most friendly to the frigates ought not to oppose the appointment of a committee; because, if it should appear that the money had been justly expended, there would be little objection to a further appropriation. Mr. LIVINGSTON said, from the full discussion of this subject, which, though incidentally produced, had taken place on a former occasion, he did not think it would either have been becoming or necessary to have again stated the reasons which gave rise to this resolution, especially as he felt an aversion to say any thing which might be unnecessary, or which might tire those who heard him. Mr. L. said, that he had before observed that the patience of the House had been worn out by the repeated applications which had been made for money for this object; that the expense had exceeded all belief; that the most extended imagination could not have conceived an amount like that which Congress had from time to time been blindly led to appropriate. But the proposition was objected to, because it would cast an odium upon our officers. This he was perfectly indifferent about. Whatever might be the private opinion he had of the characters of these officers, however incapable he might believe them of doing wrong, or of acting corruptly, yet, when his duty called upon him to make an inquiry into the expenditure of public money, he was deaf to all considerations of a private nature. But, in this case, he did not see the necessity for this remark. The House had been told (he believed by the gentleman from South Carolina himself) that the extraordinary expense had been occasioned by our inexperience in business of this kind, by the high price of labor, materials, &c. If this were the case, the result of the inquiry would be honorable to those concerned, and highly satisfactory to the House. It was a proceeding which our public officers ought to wish for; nay, gentlemen say they do wish for it. But, Mr. L. said, it had been alleged, that the statements ordered a year ago to be laid before the House during the first week in this month, should be waited for before any inquiry took place. He would reply, if these officers had not, in the mean time, called upon the House for a fresh supply of money, this inquiry would not have been thought of. Besides, the accounts asked for last year would not give the satisfaction required. The request only extended to all the expenditures previous to the 1st of January, 1797. The House would wish to know what had been expended since, and they had no reason to expect further information than was asked for. Mr. L. said every member who was present at the time must remember that whenever the House had been applied to for further appropriations, they had been told that the frigates would be ready for sea at such and such a time; and that they would then bear our flag triumphantly over the ocean. And yet, though the House had been four or five times deceived by these representations, they were told there was no ground for inquiry. For his part, he should consider himself as neglecting his duty were he not to call for this inquiry immediately; for, if the House were to wait a week for the statements called for, they might wait another for their being printed; they might then be found to be deficient, fresh statements might be necessary, and the session might expire without effecting the wished-for inquiry. He thought all parts of the House ought to favor the inquiry; for, he believed, if it should appear that frigates could not be built for less than $500,000 a piece, the project of a navy ought to be given up; but if, on the other hand, difficulties and expenses had occurred in the commencement of this business, which would not return, and their frigates may in future be built for half the sum, (which was his opinion,) there would be some encouragement to proceed in the business. Mr. SEWALL was sorry that the gentleman from South Carolina (Mr. HARPER) had given the occasion, and that the gentleman last up had so eagerly seized it, to thwart any measures which might be necessary for the general defence, by ridiculing the resources of the country. The present, he said, was a time of danger and apprehension, and thus to talk of the resources of the United States added to the apprehension and the danger. The gentleman from South Carolina had said, that to pass this resolution would be to pass an odium upon our public officers. He did not think so. He thought an inquiry of this kind at all times proper where there was any doubt as to the expenditure of money. He agreed with the gentleman from New York, that the inquiry (if it had a favorable issue, which he did not doubt) would forward the design of providing a navy; as it would appear that the extraordinary expenses had been such as it would not be necessary to incur in future. He was, therefore, sorry to hear the gentleman from New York first up (Mr. WILLIAMS) say he should be disinclined to vote any further appropriation until he saw how the last had been expended. However improvidently the money already appropriated had been expended, yet, in order to secure what had been voted, and to keep the work in progress, they ought to vote a further sum, as soon as wanted, whether the statements called for were received or not. Mr. LIVINGSTON desired to know wherein he had attempted to ridicule the resources of this country? The gentleman from Massachusetts must excuse him when he asserted he had never made a more hasty or unfounded charge. If he had either ridiculed the resources, or thwarted any measures for the general defence of the United States, it must have arisen from a weak judgment, and not from any intention of doing so. But he was certain nothing which had fallen from him could be so construed. Mr. SEWALL acquitted the gentleman from New York of any intention of lowering the appearances of the resources of this country; but he appealed to the House whether he had not spoken of this fleet with a degree of ridicule, when he represented it as governing the ocean. It appeared so to him at least. Mr. HARPER again insisted upon the impropriety of going into this measure, from reasons similar to those which he had already given. Mr. GALLATIN said, that the ground taken by the gentleman from South Carolina (Mr. HARPER) would prevent any inquiry whatever; for he stated that the House ought not to pass the present resolution, because certain statements had not been received, and because to pass it would be to imply a censure on our officers. So that on this ground no inquiry could be gone into without statements, as the House could not obtain statements without passing a resolution, that resolution would be construed into a censure, and therefore ought not to be passed. This Mr. G. thought a very improper doctrine. It would never be in the power of the House to decide upon the propriety of statements by barely having them laid upon the table. MONDAY, January 15. _Naval Expenditure._ Mr. GALLATIN stated the different estimates which had been made to the House. In 1794, he said, they were told that $688,000 would be sufficient to build six frigates. In 1796, they were informed there had been a mistake in the matter, but that with $80,000 more three would be finished. In January, 1797, the House was again called upon for $172,000; in July, in the same year, for $200,000, and now for $150,000 more. Such calculations, he thought, wholly unaccountable. Mr. NICHOLAS did not understand what the gentleman from Connecticut meant by saying that this was wholly Executive business. He did not believe, because the PRESIDENT had told the House that he was about to hold a treaty, that the money must be granted, and that the House had no choice whether they would appropriate it or not. From what had already been said upon the subject, he doubted not there was a pretty general disposition to grant the money; but it was not proper that the Message should be sent to the Committee of Ways and Means, as if an appropriation was a thing of course; to do this, would be to act at the _command_ of the PRESIDENT OF THE UNITED STATES; whereas the House could only act upon the full exercise of its discretion. He therefore moved that the Message be referred to the Committee of the Whole, which had already this subject under consideration. Mr. GALLATIN believed the gentleman from Connecticut had not considered this subject with his usual correctness. That gentleman had said that the Message before them ought to go to the Committee of Ways and Means, and that an appropriation should follow as a thing of course. It must be known that this was contrary to the practice of that House, or of any former Legislature of the United States. On the contrary, it was usual, first to authorize an expense, and in the next place to appropriate; and in no case had the business been reversed. If the Message were referred to the Committee of Ways and Means, all they could do, would be to bring it back to the House, and ask for an authority for the expense. He believed the gentleman from Connecticut had been led into this mistake by considering the Message announcing the intention of the PRESIDENT to hold a treaty as a treaty made; and had that been the case, according to that gentleman's known opinion, he would consider the House as bound to make the necessary appropriation; but he desired him to recollect that no treaty was yet made; and, therefore, that that doctrine could not apply in the present case. Mr. RUTLEDGE did not believe it was necessary or proper for that House to authorize the PRESIDENT to hold a treaty; but if it were necessary for him to hold a treaty, the concurrence of that House was necessary to enable him to do it, as it could not be done without money. It was requisite, therefore, to pass a bill, not to authorize the PRESIDENT to hold a treaty, but to enable him to do it. It was best, therefore, for the communication first to go to the Committee of the Whole, and afterwards to the Committee of Ways and Means, in order for them to say where the money could be got. There was something in this case which pointed out this mode as peculiarly proper, as there seemed to be a disposition in the House, if the treaty should not succeed agreeably to the wishes of the PRESIDENT, to afford temporary relief to the persons now suffering from being driven from their land. The gentleman from Connecticut had said, that the Committee of Ways and Means could report an estimate of the probable expense which would be incurred in holding the treaty; but if he attended to the Message of the PRESIDENT, he would find that this estimate was to be laid before the House by the proper department, so that there was no necessity of a reference to any committee for that purpose. The motion for a reference to the Committee of the Whole was carried, without a division. _William Alexander._ On motion of Mr. GREGG, the House went into a Committee of the Whole on the report of the Committee of Claims on the petition of William Alexander, surveyor of Army lands. After reading a number of papers relative to the subject, the report, which went to authorize the Treasury to settle the accounts of the petitioner, was agreed to, the committee rose, the House concurred, and a bill was directed to be brought in accordingly. _General Kosciusko._ Mr. PINCKNEY, from the committee appointed to confer with the Senate on the disagreement between the two Houses on the bill for the payment of interest to General Kosciusko, reported, that finding the business could be settled in a manner equally advantageous to the General, by agreeing to the amendment of the Senate, as by the mode originally proposed, the committee recommend it to the House to recede from their disagreement to the Senate's amendment. The recommendation was concurred in by the House. _Civil Appropriation for 1798._ On motion of Mr. HARPER, the House resolved itself into a Committee of the Whole on the report of the Committee of Ways and Means for providing for the expenses of the civil department for the year 1798, and the blanks being filled (except in a few cases, in which they were left in blank) according to the estimate which had been laid before the House, the committee rose, the House concurred, and the bill was ordered to be reported accordingly. THURSDAY, January 18. The SPEAKER laid before the House a communication from the Secretary of War, enclosing an estimate of the appropriations necessary for holding a treaty with the Cherokee Indians, which was in substance as follows: For three commissioners, ninety days, at eight dollars per day $2,160 Incidental expenses of do. 360 Secretary, at four dollars per day 360 Rations of two thousand Indians 15,000 Presents to the Indians 5,000 Stores for the commissioners 2,000 Incidental expenses 1,200 ------ 25,880 ====== This statement was referred to the Committee of the Whole to whom was referred the former Message of the President on this subject. _Persons Imprisoned for Debt._ The following Message, with the papers to which they refer, was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: A representation has been made to me, by the Judge of the Pennsylvania district of the United States, of certain inconveniences and disagreeable circumstances, which have occurred in the execution of the law passed on the 28th day of May, 1786, entitled "An act for the relief of persons imprisoned for debt," as well as of certain doubts which have been raised concerning its construction; this representation, together with a report of the Attorney General on the same subject, I now transmit to Congress, for their consideration, that if any amendments or explanations of that law may be thought advisable, they may be adopted. JOHN ADAMS. UNITED STATES, _January 18, 1798_. This Message, with the papers accompanying it, was referred to the same Committee of the Whole to whom was referred the report on the petition of William Bell. _Diplomatic Intercourse Bill._ Mr. NICHOLAS inquired with what sums the blanks in the bill were to be filled. Mr. HARPER said he proposed to fill the first with $40,000, and the last with $28,650. Mr. NICHOLAS conceived this to be a good time for the House to attempt to bring back the establishment of the diplomatic corps to the footing on which it was settled at the commencement of the Government, and continued down till the year 1796; and to prevent in future the probable increase which he apprehended from the recent examples, he thought it necessary to take a view of this subject, not only from the increase of expense, but from a variety of other considerations. It is not the manner in which a Government is constituted which makes its operations easy and certain. But the execution of the powers of the Government itself is no more to be considered than the nature of its formation; for I do believe there is a tendency in all Governments like ours to produce a union and consolidation of all its parts into the Executive department; and that the limitation and connection of the parts with each other, as settled in the constitution, would be destroyed by the influence I have mentioned, unless there is a constant operation on the part of the Legislature to resist this overwhelming power. I think we have the most convincing proofs that a representative Government can be made most oppressive and burdensome, and yet preserve all the forms which are given to it by a constitution; and the Legislature shall appear to act upon its own discretion, whilst that discretion shall have ceased to exist. Where the Executive has an influence over the Legislature, and the Government is a representative one, the Executive is capable of carrying its views into effect in a manner superior to what can be accomplished even in the most despotic monarchy; the mischief will be carried farther in the former case than in the latter, because the people will be more inclined to submit to the decisions of a Government of its own choosing than to one which rules them by hereditary right; monarchs cannot carry their oppressions so far, without resistance, as republics. Under this general view of the subject, he conceived it to be the duty of the Legislature to guard cautiously its own independence, and to limit, as far as consistent with the general welfare, the influence of Executive patronage. He conceived that this extension of influence of one branch of the Government over another was strictly guarded by the constitution, which was framed on the principle of checks and balances--of departments acting and controlling each other; but he was sorry to see the idea of patronage drawn into a closer compass than it had formerly been, as it increased the evil. He was sorry for it, because it tended to manifest a circumstance which had been sought to be concealed. Every insinuation that there was a division between the Government and the people had been repelled as an insidious and malignant design; but the Administration, by acting on a new principle, which he was too well assured was the fact, had established the idea that there was a division between it and a considerable portion of the people. The evidence of this fact had been long shown, and he feared the operation of circumstances of this nature on the public mind. He gave it as his opinion on our foreign intercourse, that the United States would be benefited by having no Ministers at all. He did not think that we could be benefited by any sort of compact these foreign agents could form for us, for we only bound ourselves by any treaty we entered into, as we are totally incapable of enforcing the execution of the stipulations made by other nations by any offensive measures. It might be thought necessary to make commercial arrangements with some European powers; but, he asked, if they had the force to make a foreign country conform to its engagements? No gentleman would say that they had; therefore such regulations only tended to entangle ourselves, without rendering commerce any efficient aid. He would, therefore, leave our commerce to seek its own markets totally disembarrassed. All the protection we could furnish it with, consisted in officers of another grade than those mentioned in this bill: Consuls who should reside in the seaports, and not Ministers Plenipotentiary residing in the interior. He did not intend by the motion he was about to make, that the whole diplomatic establishment should be destroyed at this time, but merely to reduce it to what it had been before the late increase. With this view he proposed to alter the bill so as to direct that there should be appropriated $9,000 for a Minister Plenipotentiary at London, and $9,000 more for another near the French Republic, and that the PRESIDENT be left at liberty to reduce the Ministers Plenipotentiary at Berlin, Madrid, and Lisbon, to Ministers resident, which would diminish their salaries one-half--a resident Minister being of a lower grade has only $4,500 per annum. He then went into a detail of the proceedings of the first Congress, in order to show that it was admitted on all sides by that body, that the constitution vested the power of specifying and limiting the salaries of foreign Ministers and Consuls; he read the speeches of Mr. LAWRENCE, Mr. SHERMAN, Mr. W. SMITH, of South Carolina, Mr. SEDGWICK, Mr. HUNTINGTON, and several others, from the Congressional Register, by which it appeared, that there was but one opinion on their powers under the Constitution; and showed from hence, that the only reason why the House did not undertake to enumerate and fix the salaries of foreign Ministers in detail, arose merely from the want of information as to the places where they should be fixed, and the sum necessary to cover their expenses. As his construction corresponded with that of the gentleman who fixed the principles upon which the Government was put in motion, he was encouraged to expect his motion would succeed, seeing that the House had now had sufficient experience to enable them to say what were the regulations proper to be made. Mr. HARPER supposed it would be remembered by all those gentlemen who had attended to the business of Congress for several years past, that the doctrine of the gentleman from Virginia was by no means new. The subject of foreign intercourse was never taken up, without that gentleman, or some other who agreed with him in sentiment, advancing these opinions; they never failed to speak of the danger to be apprehended from Executive influence, from its power to appoint foreign Ministers; that foreign intercourse was unnecessary; that our public affairs abroad were not to be attended to, and that commerce ought to be given up, or left to shift for itself. Nor was this a doctrine confined to this country, or this age. Whenever a set of gentlemen in any country found their views opposed by the measures of Government, they became vexed, and attributed the proceedings of those who differed from them in opinion to any motive rather than the public good. The desire of Executive favor, or Executive offices, was an usual charge, and it was at this day well understood. It would also be remembered, that whenever the subject of foreign intercourse had been discussed, though these objections had been constantly made to it, they had been as constantly disregarded by the Congress of the United States. The good sense of the country had weighed these objections in the balance, and declared them wanting; and he trusted the same fate would now meet them as heretofore. In aid of the $40,000 per annum, originally granted for this purpose, Mr. H. said, various supplementary appropriations had been made. First, a sum of $20,000, then a sum of $23,000, and, in March last, $17,000, and, in addition to this, $14,000 for a particular appointment. The House had, therefore, not only deemed it expedient to continue the original act, but to make additional appropriations from year to year. He thought the good sense of the country had never been more firmly shown than on this subject. But now a new course was to be taken, and all former proceedings declared to have been wrong. But it was said this country had no need of foreign ministers, and that commerce might be left to itself. He did not believe the House would think so. Did not the United States trade with all the nations of the earth? How, then, was it possible to do without accredited agents to attend to our concerns in foreign countries? Were we to give up our commerce? There were gentlemen, he knew, who would answer, Yes. They would tell the House, commerce was a bad thing, and that it rather ought to be outlawed than protected. But was this the sense of the country? Was it the sense of that House? Would they discard the property of that class of citizens who depended upon it for their support and their wealth? Or would they be ready to forfeit the revenue arising from it? Mr. H. said he had often heard of the dangerous nature of foreign intercourse; but it was the discovery of a few men who believed that every thing which had been done by this Government had been radically wrong. He trusted, however, the House would adhere to what it had so frequently sanctioned, and that the proposed amendment would not be agreed to. Mr. GALLATIN believed that there were a number of people in the United States--people otherwise enlightened, and who, upon all common subjects, possessed sound understandings--who were fully convinced that there was a faction existing within the United States, and even within the walls of that House, who wished to demolish the Government; and he further believed that this opinion was supported by such declarations as had been made by the gentleman from Connecticut. He should be sorry that such a belief should be considered as dangerous to the safety of the community. Nor could he consider the determination of the Executive to employ only such persons as are of the same political opinions with themselves, as of such a nature as to produce fatal consequences, and that Government, on that account, was unworthy of confidence. He believed that such a line of conduct must flow from the present state of parties in America, divided as the people were upon many important occasions. To say, therefore, that the Executive employed persons of consonant political opinions to its own, was not to say the Government did not deserve confidence. But if the committee turned their attention to the amendment proposed, it only went to declare that ministers to London and Paris should not have a salary of more than $9,000 a year; and that ministers to other parts of Europe should not have more than $4,500. In support of this amendment, it was said that this was the ground upon which this Government first fixed the business of foreign intercourse. He believed this statement correct. Until the year 1796, there was no minister plenipotentiary except at Paris and London; at other places there were no higher grades than ministers resident. Hence the committee might be led to argue the propriety of bringing back our foreign political intercourse to what it was before that period. He said foreign political intercourse; because he thought the gentleman from South Carolina (Mr. HARPER) had blended two subjects together, viz: foreign commercial intercourse, and foreign political intercourse. He did not believe it was the opinion of any gentleman in that House that commerce ought to be left to shift for itself, unattended to. He believed it was well understood that our commerce in foreign countries was attended to by our consuls and not by our ministers plenipotentiary; and consuls would exist if we had no ministers at all. Therefore, all that gentleman's arguments, which tended to show that the amendment would affect our commercial intercourse, had no foundation whatever. Returning to the question of foreign political intercourse: Was it proper to bring it back to what it was eighteen months ago? And, before he proceeded further, he would observe that, though the gentleman from South Carolina had been tolerably correct in his statements of the business, he was mistaken in one point, in which he would set him right. He had stated that the first additional appropriation was $20,000; but this sum was not appropriated for foreign intercourse, but for defraying the expense of the suits of our merchants in London. On the first of January, 1796, there remained a balance of unexpended appropriation for this object, of $30,000. To that day no extraordinary appropriation had been made; the whole allowance was $40,000 a year, which was found to be more than sufficient. On the 28th of May, 1796, an estimate was sent by the PRESIDENT OF THE UNITED STATES, stating the sums already appropriated for foreign intercourse, and that $23,500 were yet wanting, in order to change the establishment which had till that day existed, by sending Ministers Plenipotentiary to Madrid and Lisbon, instead of Ministers Resident. This estimate, he just stated, was received on the 28th of May, and the law received the signature of the PRESIDENT on the first of June, so that it could not have received a very full discussion (being passed just as the session was about to close) and he thought there was good reason for examining the thing again. The next appropriation was made in the second session of the fourth Congress. In that session, he allowed, the additional appropriation was passed after full discussion. It was made upon an estimate stating $17,900 wanted; and, during last session, an appropriation was made for a Minister to Berlin, of $13,500. The committee had been told that it would evince great versatility if they were all at once to change what had already been done. But it must be recollected, than when the change in the system was first made, it underwent little discussion; and he would venture to say, that our business abroad was as well done from the year 1786 to 1796, as it had been done since. As the question was whether a larger or a smaller sum of money should be appropriated, he would call upon gentlemen in favor of the larger sum, to show what benefit was derived from Madrid and Lisbon by the change; what necessity there was for a Minister at Berlin, and what good was to be derived from giving a larger salary than $4,500. The gentleman from Connecticut had said, why send a Minister Plenipotentiary to London or Paris, any more than the other Courts? This was done at first, and the mover, he supposed, wished not to innovate upon the law as originally passed. But they were told it was improper, upon this floor, to say any thing about patronage, and that all arguments of that kind are well understood, and are by no means novel in their nature; that such complaints are made under all forms of Government by discontented people out of office. To say that these complaints are well understood, was the same as to say that the ground upon which they complained was also well understood: it was to acknowledge, that persons who were in the favor of the Executive had some advantages which persons in the other party desired or envied. To admit of one position, was to admit of the other. But, if no particular advantage was to be derived from Governmental patronage, then the cause of jealousy, according to this doctrine, must cease. Our Government, he said, was in its child-hood; and if this patronage had any existence, it could not of course be as yet alarming. But he desired gentlemen to look at all Governments where this power was placed in the Executive, and see if the greatest evil of the Government was not the excessive influence of that department. Did not this corruption exist in the Government which was constituted most similarly to ours, to such a degree as to have become a part of the system itself, and without which, it is said, the Government could not go on? Was it not, therefore, prudent to keep a watchful eye in this respect? He did not, however, speak against the power itself; it was necessary to be placed somewhere. The constitution had placed it in the Executive power. If the same power had been placed in the Legislature, he believed they would have been more corrupt than the Executive. He thought, therefore, the trust was wisely placed in the Executive; and though it was right to keep grants of money within proper bounds, in order to prevent the abuse of power, yet it was proper to grant all that was necessary. Mr. G. concluded, by saying, that if he thought it was proper that our political intercourse should be extended, he should not support the amendment; but as the conviction was strong upon his mind that our foreign political intercourse had at least been as expensive as it ought to be; that it was owing, in a great degree, to our political intercourse with foreign nations, that our present critical situation was produced; that this intercourse produced more evil than good to us; that he wished to bring the business back to the state in which it stood in 1796. If the wisdom of future Legislatures shall think proper to abolish the establishment of foreign political intercourse altogether, it must be left to them to decide. He himself thought it would be going too far to do so at present. He believed, situated as we were, it was necessary to have some political intercourse; but he believed it would be best, by degrees, to decline it altogether. Mr. SITGREAVES.--The constitution and laws of the country had made certain offices necessary, and left it to the Executive to fill them as he pleased; and was it for that House to attempt to control this discretion? If it were executed to the injury of the people, the constitution had pointed out the remedy to be by impeachment. But where was the crime, the offence, or the impropriety, of the conduct ascribed to the Executive, if it had been adopted? Would gentlemen say that the Executive ought to appoint persons to office who professed an opinion contrary to its own? Did gentlemen suppose that there was such a want of integrity in this department of Government, that it adopted a political opinion which it did not believe to be right? And, if it were believed to act from principle, would it be prudent or right to admit to a participation in the execution of the important duties of Government persons whose sentiments were not in unison with those of the Executive, and who could only create discord and confusion, where nothing but harmony and union ought to prevail? If the Executive acted upon just principles, it would endeavor to give singleness of design to its operations, and it could only do this by admitting persons into the Government who thought with it. This would be a right, prudent, and honorable conduct; and where it had been deviated from (as he had before observed), Government had received an awful lesson for its future conduct. The question whether that House had the power to interfere with the Executive authority, by withholding appropriations, had been fully discussed in a former Congress, and the opinion of the country was not now to be fixed on this subject. For that part of the House who thought the constitution had not vested them with the authority of controlling the Executive, it was sufficient to say that the Executive had thought it necessary to introduce the change in the diplomatic department, which was complained of, and that they felt themselves bound to carry his determination into effect; but those who think that the House of Representatives may control the Executive in this respect, will of course act accordingly. Mr. BALDWIN said he perceived there was a real difference of opinion between the gentleman last up and himself. The gentleman supposed the diplomatic establishment was fixed by the Executive, and the Legislature had nothing to do with it but to provide the money. Every person must see, even from a cursory view of the constitution, that this was designed to be a Government of departments, Legislative, Executive, and Judicial, to be kept distinct as far as possible. It was the business of the Legislature to establish offices by law; it was the business of the Executive to fill those offices. It would appear, from tracing back the law, now proposed to be continued, that it originated in this manner. He had not been notified of the subject as being likely to be called up to-day, and was not prepared to be as particular as he could wish as to facts. He had endeavored to refresh his recollection since it had been under discussion, and he found that it originated from the Speech of the PRESIDENT, at the opening of the second session of the first Congress, in which he said, "that the interests of the United States required that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty in that respect; and to this end, that the compensations to be made to the persons who may be employed, should, according to the nature of their appointments, be defined by law." This part of the Speech was referred to a committee, and from that originated this law. Want of information, at that early time in the Government, prevented their being as particular as they wished. They fixed a sum to each grade, and a sum beyond which the whole amount should not extend; limited the law to a short period, that it might be open to be corrected by experience. The present motion, if he had understood it, proposed now to be a little more particular in the establishment, by fixing the sum for particular places--to do the very thing then recommended by the PRESIDENT. The same has always been the intention of every succeeding Congress, which was the reason why they continued it only for short periods, leaving it open to such amendments as should be suggested by experience. These ideas of the offices being first to be established by law, appeared not only to be the sense of the former PRESIDENT, and of each succeeding Congress, as he had stated, but appeared also to be the opinion of the present PRESIDENT. At the last session he thought that a higher grade of office was necessary at Algiers: this he stated in a message to Congress--that as there were great expenditures of money on that coast, he thought it necessary that an establishment should be made which would enable him to appoint a very confidential person, on whom the other officers there should be dependent, and who should control their proceedings and expenditures. Congress concurred in this opinion, passed a law for the establishment of the office, and then the Executive appointed the officer. For these reasons he considered the question within their proper powers, and fairly open to their deliberation. At the close of the revolutionary war, the disposition of forming many treaties, and having extensive diplomatic connections with European powers, was carried even further than it has been since. It was among their first national acts, and discovered marks of youth and inexperience; a few years convinced them that they had gone too far, that this country had little to expect from treaties, and much to lose, and that many diplomatic connections were more frequently the cause of perplexity and embarrassment, than of any national advantage. The Congress under the articles of confederation were extricating themselves from that policy as fast as possible; as these expired in course, they were careful not to renew them. For several of the last years of that Congress he well recollected that clusters of candidates for these appointments, supported by powerful interests and connections, were uniformly resisted; and, if he mistook not, when this Government came into operation, this country had but one Minister in Europe. The conviction on this subject was so strong, and experience had so fully settled it as the true policy, that it remained immoveable for some time after organizing the present Government. All appropriations for foreign Ministers were refused at the first session, as far as he recollected. At the second session it was urged, in the Speech of the PRESIDENT, as before stated, and enforced by more particular explanations to individuals, as designed to be for temporary purposes, respecting the Northern forts and the property that was withheld. Under these explanations a law passed, as before explained. It was true, this policy had been of late, in some measure, departed from. He thought experience had already been useful to them in this course also, and ought to administer caution to them in seeking to intermingle in European politics. Ambassadors and Ministers cannot be entirely indifferent to the characters and events with which they are constantly surrounded; the share they take is very apt to be exchanged between the countries to which they belong. He did not wish to be too particular on that point; he was persuaded facts enough presented themselves to the recollection of every member, to confirm his remark. It might be said that on this also we have an awful lesson. If evil had been experienced from this cause, he hoped it would operate as a reason to endeavor to diminish it. He thought it not unreasonable for the House to interpose their restraining power as to granting money, and the more particular establishment of the officers, and thus aid the other departments of the Government in bringing back, by degrees, this part of our policy to its former principles, so well sanctioned by experience. Whether the present motion was well timed, or whether it was best to give it another short limitation, before we went into a definite establishment, was another question, on which he was willing to hear more remarks. Informed as he was at present, he should vote for the motion, and thought they might make some amendments to the former bill, already suggested by experience, and which would be useful. The committee rose, and had leave to sit again. FRIDAY, January 19. _Foreign Intercourse._ The House again resolved itself into a Committee of the Whole on the bill providing the means of foreign intercourse, when Mr. PINCKNEY rose. He understood the amendment was intended to confine our Ministers Plenipotentiary to London and Paris, and that no higher grade than Ministers Resident should be employed in any other country. He was opposed to this change at this time, and to the mode proposed of doing the business, if the time were seasonable. It was proper that at this juncture our Ministers should remain as they were, as it was prudent to derive all the influence and advantage we could from the situation of our agents in Europe, who would not only be enabled to communicate more correct information from thence, than could be derived from any other source, but who could also explain the motives and objects of this Government, and by that means remove any unfavorable impressions which may be attempted to be given with respect to this country; and thereby put our business in the best train for securing the neutral standing which we have taken. He was against it for another reason. To change the diplomatic intercourse in the way proposed, would be forcing upon the Executive a measure contrary to its wishes. It would also be affording testimony to the charge heretofore made, that there was a division in the Government and the people--a situation in which many wished to see us. He should be sorry to afford the appearance of one department of Government having forced upon another a change of measures of which they are the competent judges, and upon which they have acted. As it was well known that there was a very intimate connection between Spain and Holland, and the country with whom we have at present a misunderstanding, he should be unwilling to deprive this country of the advantages to be derived from having Ministers at those places; besides, if our Ministers were to be recalled from thence, it would be considered as an extraordinary proceeding; and might be construed as intended to be hostile to them. Whatever influence Spain or Holland may have in the councils of the country which he had alluded to, by continuing our Ministers there, it was probable that weight would operate in our favor. There was an additional reason with respect to Spain. It was well known that we had points yet to settle with that country. Our treaty with that power was not yet carried into effect, and negotiations might at this time be going on in relation to it, which might be frustrated by the recall of our Ministers. Mr. NICHOLAS wished to explain his intentions in bringing forward this amendment. He believed the gentleman last up would find they nearly corresponded with his own. He had no idea of putting an immediate veto upon the Ministers at present employed. He considered this bill, though passed with a limitation, as a permanent system, and a subsequent clause of the bill would enable the committee to fix the time at which the salaries of Ministers should cease. His wish was to put a limit to this extension of Executive power. He reminded the gentleman from South Carolina that Holland was not concerned in this bill, as we had only a Minister Resident there. If the subject were further dilated upon, he should offer some further remarks upon it. Mr. N. SMITH was surprised to hear the gentleman last up considered that as a permanent provision which was limited to a duration of two years. This law was merely temporary in its nature, and if he only contemplated some future regulations in our foreign intercourse, his amendment was not now necessary. However competent it was for the Legislature to settle the salary of Ministers, it was clear the Legislature had no power, by the constitution either to determine the number of foreign Ministers to be employed, where they should be sent, or what should be their grade. Under the general power of making treaties, vested in the President, he had the power of sending Ministers where he pleased; also in the power intrusted to him of executing the law (not only the municipal, but the law of nations) it was necessary he should have this power. In a word, all relations were in the hands of the Executive; all our foreign intercourse was to him, and from him. Of course, he was the only judge of what was proper in this business. This being the case, it should seem as if that House had nothing to do with respect to the propriety of sending a Minister to Berlin, or in relation to other grades of Ministers, though they had the power of fixing their salaries. But it was contended by the gentleman from Georgia and others, that, by regulating these salaries, the Legislature had the power of preventing the extension of their establishment. This brought up an old question; but it was a very important one, and he did not regret that it was frequently drawn into discussion. He thought the great landmarks of our constitution could not be too well understood. He did not mean, however, to extend his observations on this subject. It was said, this was a Government of departments and checks, and of course, that the Legislature ought to check the Executive in its operations. That this was a Government of departments and checks, to a certain extent, he should readily allow; but that it was so to the extent which had been represented, he did deny. Our Government was divided into three departments, the Legislative, Executive, and Judicial; each of these had checks and balances in its own department. The President was checked by the Senate; the Legislature was checked by the President and Senate; the Judiciary was checked by having certain appeals, writs of error, &c. So far from one department checking the other, it was necessary that all the parts should act in unison like a clock, and the moment one part declined to act, the Government could not proceed. It was not in the power of the Legislature to reverse the decision of the lowest court, and should it then be said that they could judge over the head of the Executive? This remark was applicable to all the departments. No one department was a favorite of the constitution. Every act of a department ought to be considered as well done. This being the case, whenever the President had appointed a Minister, and done it constitutionally, when he informed the Legislature thereof, they might do any thing and every thing but doubt the propriety of establishing the Minister. Mr. HARPER.--As to the general policy of the present motion, as connected with the foreign relations of this country, Mr. H. said that he would add two or three remarks on that subject, and then conclude. The motion went, he said, to reduce the appointments and salaries of three ministers: those to Madrid, Lisbon, and Berlin; and in support of the motion, it was alleged that the last of these Ministers was entirely unnecessary, and that the other two had been improperly, because unnecessarily, raised from Ministers Resident to Ministers Plenipotentiary. To him it was a sufficient answer to these allegations to say, that the President had thought otherwise; because, the President, being charged by the constitution with the foreign relations of the country, must be invested with the means necessary for conducting them with effect; and was infinitely better qualified by this situation to judge what those means were, and how they ought to be used, than the House can pretend to be. One of these means was the appointment of foreign Ministers, which was expressly vested in the President by the constitution. When the President, therefore, had thought fit to appoint foreign Ministers, or to alter their grades, he had exercised a constitutional power, and it did not lie with the House of Representatives to object or judge. To him, therefore, Mr. H. said, it was a sufficient answer to all those objections to say that the President had thought otherwise. To others, who might hold different opinions from him on this subject, he thought it was a sufficient answer to be told that the House of Representatives, as well as the President, had thought differently, and had sanctioned the changes which he had thought proper to make in this respect, by voting money to carry them into effect. This the House had done expressly in all the three cases contemplated by the present motion. Mr. GALLATIN said the committee had been told, in the course of the debate, by some gentlemen, that this attempt to reduce the number of our Ministers was unconstitutional; by others, that it was inexpedient; and even some gentlemen, who agreed to the general expediency of the measure, believed it would be attended with inconvenience from our present foreign relations. In relation to the constitutionality of the thing, he did not believe, whatever doctrine was supported with respect to treaties, that upon this occasion the committee should be told that they were interfering with the constitutional power vested in the President. It was true that he had the general power of appointing Ambassadors, but it was not less true that the Legislature had the sole and exclusive power to provide for all the expenses of the Union. Hence arose the idea of ours being a Government of departments, so formed as to be a check upon each other. But the gentleman from Connecticut (Mr. N. SMITH) said there was no such thing as a check of departments; that each was distinct; and, though each had checks within itself, none of them checked the other. And to illustrate his position, he introduced the simile of a clock, at the same time that he told them that the Executive Department was the main-spring which put the clock in motion, whilst Mr. G. supposed he meant that the other branches were merely the hands, which moved as they were directed. But if there was any act which could not be done but by all the branches, each had its share in deciding upon the propriety of it. When a treaty was made it had been argued that that House had nothing to do but carry it into effect; but here it was said that the House were bound to provide for every Ambassador appointed; and if, by withholding salaries, they obliged the President to send Ministers Resident where he wished to send Ministers Plenipotentiary, they would act inconsistently with the constitution. Though gentlemen might make speeches on this subject, they must know that where the Legislature had a right to act, it had a right to deliberate and to use its discretion. It was true treaties had been made, but no treaty had been made since the adoption of the present Government, by Ministers Resident at any Court at the time. If any benefits were derived to the country from the British treaty, they must be attributed to the Envoy Extraordinary, and not to our Minister at that court. And when our treaty with Spain was concluded, it was necessary to send a Minister Resident to another Court to do the business. Since our treaties were always made by special Envoys, what advantage could it be to have numerous Ministers Plenipotentiary in Europe? In the present critical situation of the country, agitated as it was to the centre, was it not to be apprehended that our Ministers would participate, in some degree, in the party spirit which there abounded, and rank themselves on one side or the other, which would have a tendency to draw this country into a vortex from which we were so happily separated by the Atlantic? We were the only nation, he said, who possessed a Government on a firm foundation, in which civil and religious liberty was fully recognized; we, therefore, enjoyed what the people of Europe were seeking after. We have nothing to wish, except to remain in our present situation. Why, then, should we hazard the being involved in European broils? He had before stated that Consuls were equal to every commercial regulation, and he had heard nothing to change his opinion. Seeing, therefore, that these diplomatic agents were rather dangerous than useful, he thought it time to put a stop to their increase. Mr. BAYARD began his observations by remarking, that the gentleman from Virginia had said that it was not his design that his motion should have an immediate effect upon the Ministers at present employed. If the gentleman was sincere in his avowal, it was clear that he did not understand his own motion; for whatever amendment was introduced into the third section, which the gentleman had intimated might be so amended as to give the regulation a distant operation, as it only related to the sum of money to be appropriated, it would not enable the President to employ a Minister Plenipotentiary, besides those at London and Paris, at a higher salary than $4,500. Some gentlemen have said, it was idle talk about this House having the power to appropriate, without having the power at the same time to use their discretion. He contended that the power of appointing Ministers was vested in the President, and the House had no right to believe he would abuse this power. It had been supposed by the gentleman from Pennsylvania, that he might appoint an indefinite number of Ministers; and were the House, in that case, he asked, blindly to appropriate for them? This question was predicated upon an abuse of power, whilst the constitution supposed it would be executed with fidelity. Suppose he were to state the question in an opposite light. Let it be imagined that this country has a misunderstanding with some foreign power, and that the Executive should appoint a Minister, but the House, in the plenitude of its powers, should refuse an appropriation. What might be the consequence? Would not the House have contravened the constitution, by taking from the President the power which by it is placed in him? It certainly would. So that this supposition of the abuse of power would go to the destruction of all authority. The Legislature was bound to appropriate for the salary of the Chief Justice of the United States, and though the President might appoint a _chimney-sweeper_ to that office, they would still be bound. The constitution had trusted the President, as well as it had trusted that House. Indeed it was not conceivable that the House could act upon the subject of foreign Ministers. Our interests with foreign countries came wholly under the jurisdiction of the Executive. The duties of that House related to the internal affairs of the country; but what related to foreign countries and foreign agents was vested in the Executive Department. The President was responsible for the manner in which this business was conducted. He was bound to communicate, from time to time, our situation with foreign powers; and if plans were carried on abroad for dividing or subjecting us, if he were not to make due communication of the design, he would be answerable for the neglect. TUESDAY, January 30. _Breach of Privilege._ Mr. SEWALL then said, he believed the business which he had to lay before the House would require secrecy, as it was a subject which would considerably affect the feelings of the members of the House. He therefore moved that the galleries might be cleared; which was accordingly done, excepting the members and Clerk. Mr. SEWALL then said, that he had been informed, in a manner which left no doubt of the truth of the fact, that, in the presence of the House whilst sitting, MATTHEW LYON, a member from the State of Vermont, did this day commit a violent attack and gross indecency upon the person of ROGER GRISWOLD, another member of this House; and in order to bring the subject before the House, that he had prepared a resolution, which he read in his place, and delivered in at the Clerk's table. A question was then taken in the following words: Does the matter so communicated require secrecy? This motion passed unanimously in the negative, and the galleries were opened. The House then proceeded to consider the motion made by the member from Massachusetts, which was read, as follows: "_Resolved_, That Matthew Lyon, a member of this House, for a violent attack and gross indecency committed upon the person of Roger Griswold, another member, in the presence of the House, whilst sitting, be, for this disorderly behavior, expelled therefrom." It was moved that this resolution be referred to a committee to be denominated a Committee of Privileges, with instruction to inquire into the whole matter of the said resolution, and to report the same with their opinion thereon to the House. The question was taken by yeas and nays, and decided in the affirmative, 49 to 44. _Ordered_, That Messrs. PINCKNEY, VENABLE, KITTERA, ISAAC PARKER, R. WILLIAMS, COCHRAN, and DENT, be a committee for the purpose. A motion was then made that the House come to the following resolution: "_Resolved_, That the House will consider it a high breach of privilege if either of the members shall enter into any personal contest until a decision of the House shall be had thereon." A motion was made to add the following words to the end thereof: "And that the said Matthew Lyon be considered in the custody of the Sergeant-at-arms until the further order of the House." The yeas and nays were taken upon this question and decided in the negative--29 to 62. THURSDAY, February 1. _Breach of Privilege._ The SPEAKER informed the House that he had received a letter from a member from Vermont, which he was requested to lay before them. Mr. RUTLEDGE thought, that in all cases, when letters were sent to the SPEAKER to be laid before the House, it would be proper for him to state the substance of such communications before they are read, otherwise improper matters might be brought before them. The SPEAKER allowed that the suggestion was a proper one, and proceeded to state the contents of the letter in his hand; which having done, the reading of it was called for, and it was read as follow: _To the Speaker of the House of Representatives_: SIR:--As the attention of the House of Representatives has been called to my conduct in a dispute with Mr. GRISWOLD on a suggestion of its being a violation of the order of the House, and the respect due to it from all its members, I feel it incumbent on me to obviate the imputation of intentional disrespect. Permit me, sir, through you, to assure the House of Representatives that I feel as much as any of its members the necessity of preserving the utmost decorum in its proceedings; that I am incapable of an intentional violation of its rule; and that, if, in the present instance, I am chargeable with a disregard of them, it is owing wholly to my ignorance of their extent, and that the House of Representatives claimed any superintendence over its members when not formally constituted, and when they are not engaged in actual business. If I have been mistaken in my understanding on this subject, I beg the House to believe that my fault has been without intention, and that I am very sorry that I have deserved its censure. I am, sir, your obedient servant, MATTHEW LYON. _February 1, 1798._ The reading of the letter having been gone through, a member proposed that it should lie on the table, when Mr. MACON said, that as it was an acknowledgment of improper conduct, he thought it ought to be entered upon the journals. Mr. NICHOLAS moved that the letter be referred to the committee who have this subject under consideration. Gentlemen would recollect, he said, that, on a former occasion, when an offence of the same nature was committed, a letter written by the offending member was not only referred, but was also deemed a sufficient apology to the House. He did not know that this would be the case in the present instance; but that it might be, was evinced by the case to which he alluded. He hoped, therefore, it would be referred. Agreed to. FRIDAY, February 2. _Breach of Privilege._ Mr. VENABLE from the Committee of Privileges, made the following report: The Committee of Privileges, to whom was referred a resolution on the 30th of January, charging Matthew Lyon with disorderly behavior, with instructions to inquire into the whole matter thereof, and to report the same, with their opinion thereon, to the House, having examined several witnesses on oath touching the subject, report: That, during the sitting of the House of Representatives on the 30th day of January, 1798, the tellers of the House being engaged in counting the ballots for Managers of the impeachment against William Blount, the Speaker had left his chair, and many members their seats, as is usual on such occasions; the Speaker was sitting in one of the member's seats, next to the bar of the House, and several members near him, of whom Mr. Griswold was one. Mr. Lyon was standing without the bar of the House, leaning on the same, and holding a conversation with the Speaker. He spoke loud enough to be heard by all those who were near him, as if he intended to be heard by them. The subject of his conversation was, the conduct of the Representatives of the State of Connecticut, (of whom Mr. Griswold was one.) Mr. Lyon declared that they acted in opposition to the interests and opinion of nine-tenths of their constituents; that they were pursuing their own private views, without regarding the interests of the people; that they were seeking offices, which they were willing to accept, whether yielding $9,000 or $1,000. He further observed that the people of that State were blinded or deceived by those Representatives; that they were permitted to see but one side of the question in politics, being lulled asleep by the opiates which the members from that State administered to them; with other expressions equally tending to derogate from the political integrity of the Representatives of Connecticut. On Mr. Lyon's observing, that if he should go into Connecticut, and manage a press there six months, although the people of that State were not fond of revolutionary principles, he could effect a revolution, and turn out the present Representatives--Mr. Griswold replied to these remarks, and, amongst other things, said that, "If you go into Connecticut, you had better wear your wooden sword," or words to that effect, alluding to Mr. Lyon's having been cashiered in the army. Mr. Lyon did not notice the allusion at this time, but continued the conversation on the same subject. Mr. Griswold then left his seat, and stood next to Mr. Lyon, leaning on the bar, being outside the same. On Mr. Lyon's saying he knew the people of Connecticut well, having lived among them many years--that he had frequent occasion to fight them in his own district, and that he never failed to convince them--Mr. Griswold asked, if he fought them with his wooden sword, on which Mr. Lyon spat in his face. The Committee having attentively considered the foregoing state of facts, and having heard Mr. Lyon in his defence, are of opinion that his conduct in this transaction was highly indecorous, and unworthy of a member of this House. They, therefore, recommend the adoption of the resolution submitted to their consideration by the House, in the words following, to wit: "_Resolved_, That Matthew Lyon, a member of this House, for a violent attack and gross indecency, committed upon the person of Roger Griswold, another member, in the presence of the House while sitting, be for this disorderly behavior expelled therefrom." The report having been read, Mr. LYON said, he did not think the evidence was stated in its full extent in this report. He wished, therefore, before the House proceeded in the business, they would hear the evidence themselves. Mr. HARPER inquired of the SPEAKER whether that was the usual mode of proceeding? The SPEAKER said, it was necessary first to take up the report for a second reading. Mr. MACON observed that this was a very delicate and a very serious question, as it related to one of the members of that House, and as it respected the dignity of the House itself. He hoped, therefore, the report would be printed, that some time would be given to consider it, and that the House would themselves hear the testimony. The punishment which the report proposed was equal to death itself. He hoped, therefore, it would not be acted upon hastily, but made the order of the day for Monday. Mr. HARPER did not wish to press the business in an improper manner, as it was certainly of great importance to a member of that House, to the House itself, and to the dignity of the country. It was usual to have all reports of any consequence printed, and a day or two given for consideration. He was not himself desirous of delay, as he was at present ready to vote upon the question; but, if other members wished it, he should not object to the motion proposed by the gentleman from North Carolina. Mr. NICHOLAS took it for granted, that, whenever this subject came up, the House would think it necessary to go into an examination of the witnesses themselves, and not rely upon the manner in which their testimony had struck others. He thought it would be best, therefore, whilst the report was printing, to go on in the examination of witnesses. The question for postponing till Monday was put and carried. Mr. NICHOLAS said, he had no objection to wait for the printing of the report, before the House proceeded to examine the witnesses, but he should not waive the right of having them re-examined before the House. MONDAY, February 5. Mr. D. FOSTER reported a bill for the relief of Oliver Pollock, which was committed for Wednesday. _French Outrages._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: I have received a letter from his Excellency Charles Pinckney, Esq., Governor of the State of South Carolina, dated the 22d October, 1797, enclosing a number of depositions and witnesses to several captures and outrages committed within and near the limits of the United States, by a French privateer belonging to Cape Francois, or Monte Christo, called the Vertitude or Fortitude, and commanded by a person of the name of Jordon or Jourdain, and particularly upon an English merchant ship named the Oracabissa, which he first plundered and then burned, with the rest of her cargo, of great value, within the territory of the United States, in the harbor of Charleston, on the 17th of October last. Copies of which letter and depositions, and also of several other depositions relative to the same subject, received from the Collector of Charleston, are herewith communicated. Whenever the channel of diplomatical communication between the United States and France shall be opened, I shall demand satisfaction for the insult and reparation for the injury. I have transmitted these papers to Congress, not so much for the purpose of communicating an account of so daring a violation of the territory of the United States, as to show the propriety and necessity of enabling the Executive authority of Government to take measures for protecting the citizens of the United States and such foreigners as have a right to enjoy their peace, and the protection of their laws, within their limits, in that as well as some other harbors which are equally exposed. JOHN ADAMS. UNITED STATES, _February 5, 1798_. This Message, with the documents accompanying it, was referred to the committee for considering on proper measures for the protection and defence of the country. _Breach of Privilege._ Mr. SEWALL moved the House to take up the report of the Committee of Privileges, in order that it might be committed to a Committee of the Whole. Mr. R. WILLIAMS wished to know whether evidence could be heard in a Committee of the Whole. The SPEAKER said, the House might authorize the Committee of the Whole to hear evidence. Mr. SEWALL moved the report to be committed. If gentlemen wished evidence to be heard before the committee, they would, of course, make an addition to his motion. For his own part he thought it unnecessary. Mr. NICHOLAS had no objection to evidence being heard before a Committee of the Whole, except that it might involve the subject in some embarrassment; as it was possible that a majority of the committee might come to a decision which, according to the constitution, it would require two-thirds of the House to confirm. He saw no reason for going into a committee, except that the SPEAKER would have to give his testimony; but he did not see why the SPEAKER might not give his testimony from his seat, as well as from any other place. By going into a committee, the subject would take up a longer time than it otherwise would do, as they should have twice to go over the same ground. Mr. R. WILLIAMS was in favor of hearing the evidence before the committee. Mr. THATCHER was not of opinion, with the gentleman from Virginia, that this matter should be run over as soon as possible. He thought it of infinite importance, as it respected the dignity of the House and the people at large, and he hoped it would go through every form of the House. The question for a commitment was put and carried, and it was made the order for this day. Mr. NICHOLAS then moved that the Committee of the Whole be authorized to examine testimony, and called for the yeas and nays upon the question; which being agreed upon, they were taken, and, so little opposition was there to this mode of proceeding that the question was carried, 88 to 4. The negatives were Messrs. GORDON, SEWALL, SITGREAVES, and THATCHER. Mr. D. FOSTER moved that the committee should be authorized to report the whole of the evidence, as he thought it was important it should be entered upon the journals. Carried. The House then resolved itself into a Committee of the Whole, Mr. DENT in the chair, on this subject. Mr. THATCHER said it would be necessary that a Judge should attend to administer an oath to the members who should be called upon to give their testimony. The CHAIRMAN informed the committee that the Judge of the District Court was in the House. Judge PETERS was accordingly called upon. Mr. RUTLEDGE desired an oath might be administered to the SPEAKER, Messrs. S. SMITH, BROOKS, HOSMER, COIT, DANA, GOODRICH, and CHAMPLIN; which was accordingly done. Mr. RUTLEDGE said, if there should be occasion, he should also call upon Judge CHIPMAN, a Senator from Vermont, as an evidence. Mr. CHIPMAN was, towards the close of the sitting, also sworn. Some conversation took place as to the best mode of taking the evidence, whether, as it was to be reported to the House, it should be received from the witnesses in writing, leaving them to be questioned afterwards by the members of the committee, or whether it should be given _viva voce_, deliberately, and taken down by the Clerk. The latter mode was at length adopted, and the SPEAKER proceeded to give his testimony. [Taking the testimony in this case, and the debates upon it, occupied the House until the 12th of February, when, a motion having been made to amend the resolution of expulsion, by substituting a reprimand, a vote was taken on that question, and negatived--52 to 44. The vote was then taken on the resolution of expulsion, and stood yeas 52, nays 44. The constitution requiring two-thirds of the members present to carry a vote of expulsion, the Resolution was declared by the Speaker to be not carried. The following were the yeas and nays:] YEAS.--George Baer, jr., Bailey Bartlett, Jas. A. Bayard, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, Thomas T. Davis, John Dennis, George Dent, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, David Holmes, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Isaac Parker, Josiah Parker, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, Wm. Shepard, Thos. Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, and Peleg Wadsworth. NAYS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Samuel J. Cabell, Thomas Claiborne, Wm. Charles Cole Claiborne, Matthew Clay, John Clopton, John Dawson, Lucas Elmendorph, Wm. Findlay, John Fowler, Nathaniel Freeman, jun., Albert Gallatin, William B. Giles, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Walter Jones, Edw. Livingston, Matthew Locke, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, John Nicholas, Thompson J. Skinner, Samuel Smith, William Smith, Richard Sprigg, jun., Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. WEDNESDAY, February 14. _Quakers' Memorial._ Mr. SITGREAVES moved the order of the day on the report of a select committee on the memorial of the people called Quakers; which motion being agreed to, the House went into a Committee of the Whole on the subject, Mr. DENT in the chair. The report having been read as follows: "That, inasmuch as the said memorial and address presents, in general terms only, certain subjects to the consideration of the Legislature, without containing any definite state of facts, or any specific application for its interposition, the memorialists were desired to exhibit a particular view of the grievances of which they complained, in order that the attention of the House might be directed to precise objects, and that it might be better discerned whether the complaints of the memorialists were of a nature to justify Legislative interference: "That, in consequence of this request, the memorialists laid before the committee the representation and documents which accompany this report: "That, on the subject of this representation, the memorialists were invited to confer with the committee, and were solicited to suggest the remedy which they conceived it to be in the power of Congress to apply to the case, as stated by them: "That the committee, after several conferences with the memorialists, and an attentive consideration of the subject, are very clearly of opinion that the facts disclosed in the said representation are exclusively of judicial cognizance; and that it is not competent to the Legislative authority of Congress to do any act in relation to the matter thereof: "Wherefore the committee recommend the following resolution: "_Resolved_, That the memorialists have leave to withdraw the said memorial and address." Mr. THATCHER could not say that he was perfectly satisfied with the report of the committee in all its parts. He wished the business disposed of without coming to any decisive resolution upon it, so as either to approve or disapprove of it. He was not ready to say that the facts disclosed in that memorial were exclusively of judicial cognizance, and that the Legislature of the Union was incompetent to do any thing in it. It might, however, be true, but it was not clear to him. He would rather that the subject should not now be acted upon: he would, therefore, propose an amendment to the report, which might conclude the business without coming to any resolution upon it, which had been the course heretofore taken with similar applications. He moved, therefore, to strike out the resolution giving the petitioners leave to withdraw their petition; and if his motion was agreed to, he should wish the committee to rise, and that the House would not act further upon it at present. Mr. RUTLEDGE said, he, as well as the gentleman from Massachusetts, was dissatisfied with the report of the select committee. He thought the report ought to have stated that the peace of certain States in the Union had been much disturbed by applications of this kind. He had prepared a resolution to this effect, which he would read in his place. It was as follows: "_Resolved_, That part of the memorial of the people called Quakers has a tendency to disturb the tranquillity of some of the States of the Union; that this House is not competent to act upon it, and therefore they have leave to withdraw their memorial." There could be little difference of opinion on the assertion that the internal tranquillity of several States had been disturbed by these applications; and he believed there would be no difficulty in obtaining a majority of the House to declare it; as, if the Representatives of three or four States were to rise and declare the fact, it must have sufficient weight to carry a declaration of this kind. He had, however, mentioned the matter to some of his friends, and found it was not very agreeable to them, as they wished to get rid of the business without debate. But if the present motion were to obtain, he should afterwards bring forward this resolution. The CHAIRMAN declared the motion of the gentleman from Massachusetts out of order. The question on the resolution, as reported, was put and carried, there being 74 votes in the affirmative. The committee then rose, and the House concurred in the report. THURSDAY, February 15. _Fracas in the House._ [About a quarter past eleven o'clock, after prayers, whilst the SPEAKER was in his chair, and many members in their places, but before the House had been called to order, and before the journal had been read, Mr. GRISWOLD entered the House, and observing Mr. LYON in his place (who was writing) he went up to him with a pretty strong walking stick in his hand, with which he immediately began to beat him with great violence. Mr. G.'s approach was observed by Mr. LYON, but before he could get from behind his desk he had received some severe blows. As soon as he got on the floor of the House he endeavored to lay hold of Mr. G. (having no stick or weapon in his hand) but he was prevented from doing so by Mr. G.'s falling back, and the continual blows with which he was assailed. At length getting behind the SPEAKER'S chair, Mr. L. snatched up the tongs from the fire; the combatants then closed and came down together upon the floor, Mr. G. being uppermost. The members in the House, who till now seemed to look on with amazement at the scene, without an attempt to put an end to it, got round the parties, and separated them, but not before Mr. L. had aimed a blow at Mr. G.'s head with the tongs, but which he parried off. The SPEAKER was now called upon to desire the members to take their seats and form the House. Whilst this was doing, the two enraged members met again without the bar, and, but for the doorkeeper and some gentlemen present, would have renewed the combat. Order having been obtained (at least as much as it was possible to obtain from the agitated state of the House) the Clerk proceeded to read the journal, and the business of the day was entered upon. It continued till one o'clock, when from the perturbation which was naturally occasioned by such a scene, and it being evident that business was very little attended to by a great part of the House, a motion for an adjournment was made and carried. It will be seen that no notice was taken of this proceeding in the course of the sitting.] FRIDAY, February 16. _Case of Griswold and Lyon._ Immediately upon the journals having been read, Mr. DAVIS, of Kentucky, rose and proposed the following resolution for the adoption of the House: "_Resolved_, That Roger Griswold and Matthew Lyon, members of this House, for violent and disorderly behavior committed in the House, be expelled therefrom." Mr. NICHOLAS hoped the resolution would be permitted to lie on the table. Mr. DAVIS saw no reason for delaying a decision upon this resolution. He thought the conduct of these gentlemen had been so grossly violent, and so notorious to most of the members of the House, that there need be no hesitation in deciding upon it. If gentlemen wished, however, to take the same course which had been adopted on a former occasion, he should not object to it, though he thought it unnecessary. It was needless, now to say any thing as to the necessity of preserving the dignity and honor of that House; enough had already been said, and he thought pertinently said, on a former occasion on this subject. And as he believed neither the dignity, the honor, or peace of that House could be preserved whilst these members remained in it, he hoped the House would be unanimous in voting their expulsion. Mr. THATCHER did not see why the innocent should be punished with the guilty. The gentleman who brought forward this proposition, he supposed, did not wish this. From what he saw of the affray, he did not think Mr. LYON deserved to be punished for the part he acted. He certainly received a severe beating, but he appeared to be passive from the beginning to the end; and he did not think Mr. LYON ought to be expelled because he was beaten. As to any investigation of what happened yesterday, he did not think it necessary, as most of the members of that House were eye-witnesses to the fact. But the gentleman said there would be no peace until these members were expelled. He did not know from what he drew his conclusions. What was done yesterday was done before the House was in session; and it had already been determined that acts of violence committed without the bar, during a session of the House, are not causes of expulsion. He did not know, therefore, how gentlemen would support the doctrine that a member ought to be expelled for an act of violence done before the House was in session. It might be necessary, however, to investigate other facts connected with these. Mr. J. PARKER seconded the motion for the expulsion of these members, because he believed there would be no peace in the House until they were expelled. He was sorry the gentleman from Massachusetts should have said he saw nothing but what was passive on the part of Mr. LYON. He himself saw more, and that gentleman must have seen it if he had his eyes about him. He said, that after the offending members had been separated Mr. LYON met Mr. GRISWOLD without the bar of the House and began to belabor him with his cane, when they were again separated. The attack of yesterday, Mr. P. said, at a time when the House ought to have been in session though it had not come to order, would fix an indelible stain upon it; and if these members were not expelled, no member could consider himself as safe in his seat. Such a transaction would certainly lower that House in the estimation of their constituents. He had even heard this morning, as he came to the Hall, persons in the street call out, "There is nothing to do in Congress to-day--there's no fighting going on!" In order to get rid of these reproaches, he hoped all parties would unite in expelling these members. If their constituents chose to send them back, he hoped no member would associate with or take notice of them. And if a vote of expulsion should be agreed upon, he would afterwards move to expunge from the journals all the entries relative to these disgraceful proceedings. Mr. NICHOLAS wished the motion to lie upon the table for the present, because he was not himself prepared to decide upon the subject; he wished, also, that whenever the motion was taken up, gentlemen might come with their minds determined upon it, so that a long debate might not be necessary. He therefore moved to postpone the consideration of this resolution to Monday. Mr. GORDON wished to know what part of the resolution the gentleman from Virginia was not ready to act upon? Mr. NICHOLAS did not understand the drift of the gentleman's question. If he meant to ask whether he (Mr. N.) disapproved of the vote which he had already given, he would answer him _he did not_. Mr. J. WILLIAMS said he should approve of the motion for postponement, if it were made for to-morrow, instead of Monday; and he hoped the business would not only be taken up to-morrow, but be concluded before they rose. He had sat with great patience during the late debate, but he should be opposed to going into any further lengthy proceedings on so disagreeable a subject, which would prevent them from doing the business of the nation, for which they were sent. Mr. NICHOLAS had no objection to make the question the order for to-morrow, if the House met. Mr. THATCHER observed, that he had before said that he had seen nothing on the part of Mr. LYON, in the affray of yesterday, which ought to subject him to expulsion; but the gentleman from Virginia (Mr. PARKER) said, that if he (Mr. T.) had had his eyes about him, he might have seen something for which he ought to be expelled. If, indeed, he had _eyes behind_ he might have seen what he alluded to; but this not being the case, he did not see it. As far as the business respects Mr. LYON, some inquiry might be necessary, as all he saw was, that Mr. LYON suffered much, without any offence on his part. He thought, therefore, the business should be gone into, as on a former occasion, and that they ought to examine the subject with candor, and then they should doubtless decide upon it with propriety. Mr. SITGREAVES was against the postponement, in order that a different course might be taken. He knew nothing in this case which distinguished it from a late case, and therefore could not see why the same course ought not to be pursued as was then pursued. He should therefore vote against a postponement, in order that the resolution might be referred to the Committee of Privileges. Mr. HARPER inquired whether such a motion would not supersede a motion for postponement. The SPEAKER said, it would. Mr. HARPER then made the motion. Mr. GALLATIN asked whether he understood the SPEAKER rightly, that a motion for a reference to a committee superseded a motion for postponement? The SPEAKER said, it did. Mr. NICHOLAS asked whether it would not then be in order to postpone the consideration of the subject? The SPEAKER answered, it would. Mr. NICHOLAS renewed the motion for a postponement till to-morrow. Mr. HARPER, believing that it would be proper to refer this resolution to a committee, as before, especially as some of the facts did not pass within the view of the House, he should vote against the postponement--not because he wished to avoid a vote on the question; for, if it should be the opinion of the House that it ought not to go to a committee, he was perfectly ready to give a vote upon the question; but he thought it better that the business should have this course. With respect to any discussion being necessary upon this subject, he perhaps might think it necessary to make some observations upon it, when the question came before the House for decision; for, though some gentlemen might be endued with the happy faculty of doing every thing in an instant, he could not boast of possessing that faculty. But, even if he were not desirous of discussion for his own information, he wished it for the information of the public; and, notwithstanding all that the House had heard about a waste of public money and public time, he believed they should best serve the public by suffering the business to take the usual course. The motion for a postponement was put and negatived. Mr. SITGREAVES then moved that the resolution be referred to the Committee of Privileges. Mr. HARPER moved that the committee have leave to sit during the session of the House. Mr. THATCHER thought, as it was probable a number of members might be wanted to give evidence, the House had better adjourn, as on a former occasion, as it would not be proper to go on with business when so many members were absent. Mr. T. CLAIBORNE hoped leave would not be granted for the committee to sit immediately. He wished them coolly to deliberate upon the business, which they could scarcely be expected to do, when their passions were so strongly affected as they must be at present. The question for leave to sit during the session was put and carried--46 to 36. Mr. HARPER moved that the committee be instructed to report to the House the evidence in writing, upon which they shall found their report. Mr. KITTERA thought the facts were so notorious that there was no necessity for this instruction. Mr. HARPER said if his friend from Pennsylvania could say that every body would be satisfied with the report of the committee without the evidence, he would not insist upon this motion. But if the evidence was not reported, how could he say that all the witnesses might not again be called before the House? It was his wish to prevent this. Mr. J. WILLIAMS said there was a considerable difference between this transaction and the one lately under consideration. He thought in this case it would probably save much trouble to report the evidence. Mr. BROOKS said it must be recollected that the gentleman from Virginia was not satisfied with the former report. He wished to hear the witnesses themselves; and if the evidence was to be reported, he did not suppose it would be satisfactory. Mr. NICHOLAS seconded the motion, because it would be likely to shorten the business; but if, when the testimony came to be reported, there was any obscurity in it, he should feel it necessary to ask the witnesses questions by way of elucidation, as every man who was called upon as a judge, should be in full possession of every fact relative to the subject. Mr. BROOKS said the gentleman who had just sat down, would have no difficulty in pointing out some obscurity, in order to furnish an apology for rehearing of the witnesses. Mr. KITTERA said if to report the evidence would prevent the necessity of hearing the witnesses in the House, he should not object to it; but he believed this would not be the case. Mr. VENABLE was before of opinion that it would have been best for witnesses to have delivered their evidence in writing. He hoped that course would now be taken, and then there would be no difficulty in reporting it to the House; and if it should be found necessary, in order to elucidate any part of it, to put any questions to the witnesses in the House, the business would be greatly facilitated and shortened by the evidence being reported. The question was put and carried. Mr. OTIS believed that something further was necessary to be done in respect to the unfortunate business, which had already engaged the attention of the House. From what had happened in the view of the House, it appears that the parties are in the habit of conflicting with each other; and except they are restrained by some authority which shall be sufficiently imposing upon them, further violence may be expected. In order, therefore, to secure this House from future violations of its dignity and order, he proposed the following resolution for adoption: "_Resolved_, That Roger Griswold and Matthew Lyon, members of this House, be respectively required by the SPEAKER to pledge their words to this House, that they will not commit any act of violence upon each other during this session; and that if either refuse to make such engagements, the party refusing shall be committed to the custody of the Sergeant-at-arms, until he shall comply with this obligation." Mr. SEWALL understood a motion had been agreed to in relation to the affair of yesterday, which might produce an expulsion of the members in question. He thought it would be better, therefore, to alter the wording of the resolution, and instead of "during this session," say "during the continuance of the examination of the business before the House." Mr. SITGREAVES did not think any alterations were necessary. An expulsion of the members was a possible, but not a necessary result. If an expulsion does not take place, the resolution will remain in operation for the remainder of the session, which would be proper; and, if an expulsion took place, its operation would fall of course. Mr. J. WILLIAMS thought it best to pass the resolution as it stood. If a similar resolution had been entered into on a former occasion, it would probably have prevented what had now taken place. Mr. R. WILLIAMS called for the reading of the resolution which was passed on a former occasion. [It was read. It stated "that any personal contest between the members, before the House had come to a decision upon the business, would be considered as a high breach of privileges."] Mr. W. thought this resolution went as far as the House had a right to go. The resolution proposed by the gentleman from Massachusetts, went farther, he thought, than they had power to go. It went to imprison one or both of the parties, if he or they refused to comply with the request of the House. He had his doubts whether that House had the constitutional power to imprison a man for a crime, as the law only would do this. He thought a resolution, similar to that adopted on a former occasion, would be sufficient at present; and if the mover did not think proper so to alter it, he would himself move an amendment for this purpose. Mr. OTIS flattered himself that his object would have met with the concurrence of all sides of the House, believing that all wished to prevent future violations of order and peace. With respect to the doubts of the gentleman from North Carolina, his politics seemed to be altogether a system of _doubts_. If this system was common, it would be extremely difficult to progress with business at all. He believed, on the present occasion, these doubts were groundless. When an act of violence was done in the view of the members of the House, they had certainly the power to obtain some security against a repetition of such violence. If this was not done, the presumption was, the business of the session might be continually interrupted; and had they not the right of securing the peaceful exercise of their legislative functions for the remainder of the session? He thought this could not be seriously doubted. With respect to the former resolution, if he had been in his place, he should have suggested its impropriety; for, by it, it seemed to be implied that, after the question was decided, though they could not do it before, the members in question would be at liberty to commit any act of violence they pleased upon each other. They had seen the consequence. He hoped, therefore, the House would restrain these gentlemen in such a manner as that it may not be in their power again to interrupt their proceedings. The question was then taken on the resolution, and carried by a large majority, there being 73 votes in favor of it. The SPEAKER asked, whether it was the pleasure of the House that the Sergeant-at-arms should be sent for Mr. LYON? Mr. SITGREAVES said it might not be convenient for Mr. LYON to attend the House; he asked whether the resolution might not be sent to him, and his answer be received in writing? Mr. NICHOLAS supposed, that if both gentlemen prepared a declaration in writing, and presented it to-morrow, it would answer the purpose. Mr. HARPER replied, the mischief intended to be guarded against might in the mean time be done. Mr. GALLATIN said, he had just been called out by a member of the House, who had asked him whether he thought it would be proper for Mr. LYON to attend the House. He supposed, therefore, if the Sergeant-at-arms was sent for him, he would immediately attend. Mr. HARPER hoped the Sergeant-at-arms would be sent. The SPEAKER said, as soon as the Clerk had made a copy of the resolution, the Sergeant-at-arms would wait upon Mr. LYON with it. Mr. LYON having entered, The SPEAKER said, the members from Vermont and Connecticut being now in their places, he should proceed to read the resolution which had been entered into by the House. [He then read the resolution.] As soon as it was finished reading, Mr. GRISWOLD rose and said, he should not hesitate to enter into the proposed engagement. Mr. LYON also rose and said, he was ready, as it was the wish of the House, to agree to the proposition. The SPEAKER said, then you do accordingly agree to this proposition? Both answered, "I do agree." MONDAY, February 19. _Amy Dardin._ Upon motion of Mr. T. CLAIBORNE, the following resolution was agreed to--45 to 40: "_Resolved_, That a committee be appointed to bring in a bill for the relief of Amy Dardin." [This claim has been long before Congress, and been several times the subject of discussion. It is for the value of the famous horse Romulus, the property of the husband of the petitioner, pressed into the service of the United States during the war. The case of the widow is evidently a hard one, and this is the second time a vote has been obtained in her favor, which has afterwards been reversed.] The committee rose, reported their agreement to the three resolutions, and had leave to sit again. The House took up the two first, agreed to them, and directed the Committee of Claims to bring in a bill or bills accordingly. When the third resolution came to be considered, the yeas and nays were called for, and its adoption was strongly opposed by Messrs. HARPER, NICHOLAS, and BAYARD, on the ground of its throwing open a door to every claim which had heretofore been determined as barred, as cutting up by the root all the acts of limitation; that it was also setting aside these laws in the most objectionable way, by inviting every person, who had an unsatisfied claim, to petition Congress for relief, which would of course engage much of their time. If the acts were to be set aside, it would be much better and less expensive therefore to authorize the proper department to settle these claims, than that the time of the House should be engaged in investigating and settling them. On the other hand, its adoption was advocated by Messrs. GALLATIN and T. CLAIBORNE. This was stated as a hard case; that this determination would not open the acts of limitation to any but such as Congress might deem extremely hard cases; that it would give the Treasury no power whatever to settle any claim: the power, therefore, could not be abused, except they themselves abused it; that whatever policy there might be in acts of limitation, they were certainly liable to strong objections; they knew they were honorably indebted a sum of money, but they determine not to pay it, merely because the paying it might render the accounts at the Treasury less simple, or because they would be liable to pay more than is convenient. This policy might be justifiable, but it bore very hard upon individual sufferers. It was argued, therefore, that without opening the acts generally, when a strong, unequivocal claim was presented, which was in the hands of the original holder, and where, of course, there could be no possibility of fraud, relief might and ought to be granted. Mr. J. WILLIAMS was an enemy to acts of limitation, as he thought a debt once due must always be due until paid; but he would either have them opened generally, or not at all. The yeas and nays upon agreeing to this proposition for setting aside the act of limitation in this case were taken, and decided, yeas 35, nays 55, as follows: YEAS.--David Bard, Lemuel Benton, Samuel J. Cabell, Thomas Claiborne, William Charles Cole Claiborne, Matthew Clay, John Clopton, Thomas T. Davis, John Dawson, George Dent, Lucas Elmendorph, John Fowler, Albert Gallatin, James Gillespie, William Barry Grove, Carter B. Harrison, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, James Machir, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, John Rutledge, jr., William Smith, Richard Sprigg, jr., Thomas Sumter, Abraham Trigg, John Trigg, Joseph B. Varnum, Abraham Venable, and Robert Williams. NAYS.--John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, Thomas Blount, David Brooks, Nathan Bryan, Stephen Bullock, Dempsey Burges, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, Thomas Evans, William Findlay, Abiel Foster, Dwight Foster, Henry Glenn, Chauncey Goodrich, William Gordon, Andrew Gregg, Roger Griswold, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, Jonathan N. Havens, Wm. Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, Nathaniel Macon, Wm. Matthews, Daniel Morgan, Lewis R. Morris, John Nicholas, Harrison G. Otis, Isaac Parker, John Read, James Schureman, Samuel Sewall, William Shepard, Samuel Sitgreaves, Nathaniel Smith, Samuel Smith, Peleg Sprague, Richard Stanford, George Thatcher, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, and John Williams. Mr. HARPER then proposed the following resolution, which was agreed to: _Resolved_, That the prayer of the petition of Amy Dardin ought not to be granted. TUESDAY, February 20. _Case of Griswold and Lyon._ Mr. VENABLE, from the Committee of Privileges, laid the following report upon the table, together with the evidence relative thereto: The Committee of Privileges, to whom was referred a resolution in the following words: "_Resolved_, That Roger Griswold and Matthew Lyon, members of this House, for violent and disorderly behavior committed in the House, be expelled therefrom," with instructions to report the evidence in writing, have, according to the orders of the House, proceeded to take the evidence, which they herewith report; and they report further, that it is their opinion that the said resolution ought to be disagreed to. THURSDAY, February 22. The usual time of calling the House to order being arrived, the Clerk desired members to take their seats; which being done, Mr. KITTERA said, the SPEAKER had desired him to inform the House that he was so much indisposed as to be unable to attend the House to-day. Mr. K. suggested the propriety, therefore, of adjourning the orders of to-day till to-morrow. Mr. J. WILLIAMS did not see a necessity for this. He thought the House might informally go into a Committee of the Whole on the report of the Committee of Privileges. He had seen this course taken in other Legislative bodies, and as it would be the means of saving a day, he hoped this mode would now be adopted. Mr. THATCHER hoped gentlemen would not consent to go on with business in an informal manner, since it was evident they were sufficiently informal with all their forms. Mr. HARRISON inquired if there was any probability that the SPEAKER would be able to attend the House to-morrow. If not, he should be for choosing a temporary Speaker. Mr. KITTERA said, the indisposition of the SPEAKER was occasioned by a severe headache, to which he was subject; that it generally continued for six or eight hours, and afterwards he was perfectly well. The question for postponement of the orders of the day till to-morrow was then put by the Clerk, and carried; and then the House adjourned till to-morrow. FRIDAY, February 23. The bill providing for the widows and orphans of certain deceased officers, was read the third time, and passed. _Revenue Statements._ A communication was laid before the House by the SPEAKER, from the Secretary of the Treasury, enclosing sundry documents prepared by the late Commissioner of the Revenue, in consequence of a resolution of the House of the 6th of January, 1798, requiring to be laid before the House every session, within ten days after its meeting, a statement of the net produce of the internal revenues, the salaries of the Collectors, &c., for the year preceding. The Secretary apologizes for not having made the communication sooner. It was ordered to be printed. _Case of Griswold and Lyon._ The House proceeded to consider the report of the Committee of Privileges, of the twentieth instant; and the same being again read in the words following, to wit: The Committee of Privileges, to whom was referred a resolution in the following words, to wit: "_Resolved_, That Roger Griswold and Matthew Lyon, members of this House, for riotous and disorderly behavior, committed in the House, be expelled therefrom," with instructions to report the evidence in writing, have, according to the order of the House, proceeded to take the evidence, which they herewith report; and they report further, that it is their opinion that the said resolution be disagreed to. Mr. DAVIS said he hoped the House would disagree to the report of their Committee of Privileges; after this was done, the resolution could be altered in such a manner as gentlemen might think proper. Mr. DENT called for the yeas and nays. Agreed to be taken. Mr. SITGREAVES said there were many considerations which should incline the House to come to a decision upon the present business without entering into any unnecessary discussion; and there were others which should lead them to avoid coming to an immediate decision. He should, therefore, move that the further consideration of this subject be postponed until the 4th of March, 1799. Mr. NICHOLAS called for the yeas and nays upon this question; which being agreed to, were taken, and stood--yeas 38, nays 53. The motion for postponement being lost, the question on agreeing to the report of the committee recurred. Mr. BAYARD believed it would not be in order to call for a division of the question. The resolution implicated two persons, which he thought improper. If the report of the committee was, however, disagreed to, he supposed it would then be in order to move for a division of the question. He should, therefore, vote against the report, as he wished the cases to be separately considered, as they stood on distinct ground, and were not attended with the same circumstances; and, reasoning from analogy, he knew of no instance in a court of justice, where two persons had ever been included in the same charge when their crimes were different. If the situation of both these gentlemen had been the same, there might have been propriety in coupling them together; but as this was not the case, he was opposed to taking an opinion upon both together. Mr. MCDOWELL thought it would be proper to take the same course in this business as was taken in a former case. He moved, therefore, that the report be read a second time, for the purpose of committing it to a committee of the whole House. Mr. GORDON was opposed to this mode of proceeding. Every one knew the question, and were as well prepared to decide upon it now, as they would be after going into a committee upon it. Mr. GILES thought it would comport more with the dignity of the House to decide this business without going into a Committee of the Whole, as he believed every one had made up his mind upon it. If gentlemen intended by the course heretofore taken to raise the dignity of the House, he thought they had deceived themselves; for he believed the House was never in a less dignified attitude than during that discussion. Mr. MCDOWELL thought the mode he had pointed out necessary, for the sake of uniformity; but, as other gentlemen seemed to think it unnecessary, he would withdraw his motion. Mr. R. WILLIAMS wished to know whether it would be in order to amend the report of the Committee of Privileges, or to suggest the propriety of disagreeing to it, for the purpose of substituting a different punishment from that proposed, viz: that the offending members should be reprimanded by the Speaker in the presence of the House? He believed that a punishment of this kind would satisfy many gentlemen who did not wish to expel the members, but who, at the same time, did not wish they should go unpunished. The SPEAKER said that motion would be in order after the report of the committee was decided upon. Mr. GALLATIN remarked, that if the report was agreed to, the resolution for an expulsion would of course be negatived, and then any other proposition would be in order; and, on the other hand, if the report was disagreed to, the resolution would be before them, and open to amendment. Mr. G. said he rose to make an observation upon what fell from the gentleman from Delaware (Mr. BAYARD.) That gentleman had said he would vote against the report, because he wished to distinguish between the two members. The reason which he gave, though he might have good reasons for his vote, did not appear to him to be correct. That gentleman seemed to suppose that the facts for which the two members were to be expelled, were facts committed at different times, and of a different nature; whereas the facts for which both were proposed to be expelled, were offences of the same nature, and committed on the same day. What related to the previous conduct of the member from Vermont, was not now under consideration. In order to have that conduct before them, it would be necessary that a reconsideration of it should be moved by a member who voted against that member's expulsion, and seconded by another member who voted on the same side of the question. The argument of the gentleman from Delaware, therefore, did not apply. He said he should himself vote in favor of the report of the Committee of Privileges. He was against expelling either of the gentlemen. Mr. DANA agreed with the gentleman last up, in his conclusions; but he did not seem rightly to have understood the argument of the gentleman from Delaware. If the gentleman from Pennsylvania was acquainted with legal principles, with established principles relative to punishment, he must know that no persons can be charged jointly with an offence, except jointly guilty, and except they had mutually agreed to commit the offence. The resolution, in its present form, therefore, offended against established maxims of propriety. Mr. BAYARD said, the statement of the gentleman from Pennsylvania was not correct. He had stated that the offences of the two members were the same in circumstances, and committed at the same time. He apprehended the two cases were very distinct; as, by the depositions before the House, it appeared that the offence of the member from Connecticut was committed _before_ the House was called to order, and that the offence of the member from Vermont was committed _after_ the House was called to order. The argument most depended upon in a former case, against the expulsion of the member from Vermont, was that which insisted that the act of violence complained of being committed when the House was not in session, was not a cause of expulsion. If this argument had weight at that time, it ought also to have weight in the present case. It would, therefore, be the height of injustice to blend the two cases together; since there might be cause for expelling one member and not the other. The SPEAKER observed that every thing which had been said with respect to a division of the question was out of order, as it could not be divided. He would also remark, in order to shorten the debate, that the House was not called to order when the stroke was made by the member from Vermont upon the member from Connecticut without the bar of the House. Mr. HARPER asked, if the report of the committee should not be agreed to, whether the resolution might not then be agreed to? The SPEAKER replied, it could not be divided; but a separate resolution might be brought forward. The question on agreeing to the report of the committee, which recommended a disagreement to the resolution for an expulsion of the two members was then taken, and stood--yeas 73, nays 21. The resolution for an expulsion having been disagreed to, Mr. R. WILLIAMS proposed a resolution in the following words: "_Resolved_, That Roger Griswold and Matthew Lyon, for riotous and disorderly behavior in this House, are highly censurable, and that they be reprimanded by the Speaker in the presence of this House." Mr. HARPER moved the previous question upon this resolution. He did it, he said, upon this ground. The House had just decided, and they had lately decided in another instance, that disorderly conduct shall not be punished by expulsion; and it was his opinion that no less punishment than expulsion ought to be inflicted, as he was unwilling to diminish the reprehensive power of the House, by inflicting what he thought inadequate punishment for offences of this nature. If there were any gentlemen who thought this conduct excusable, and that it ought not to be punished, they would, of course, vote in favor of the previous question; and those who thought with him, that both ought to be expelled, would also vote in favor of it. Mr. NICHOLAS called for the yeas and nays upon this question. Agreed to be taken. Mr. GALLATIN said, by the gentleman from South Carolina having moved the previous question, he had excluded any discussion upon the merits of the main question. Mr. G. wished some reasons might be given why the main question ought not to be put. Those given by the gentleman from South Carolina were applicable to the resolution itself: they were reasons why he should vote against the resolution, but they did not strike him as reasons why the question should not at all be taken. The previous question was then put in this form: "Shall the main question (viz: the resolution for reprimanding the offending members) now be put?" And the yeas and nays were taken, and stood--yeas 47, nays 48, as follows: YEAS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Samuel J. Cabell, Thomas Claiborne, William Charles Cole Claiborne, Matthew Clay, John Clopton, Thomas T. Davis, John Dawson, Lucas Elmendorph, William Findlay, John Fowler, Nathaniel Freeman, jun., Albert Gallatin, William B. Giles, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, John Nicholas, Thompson J. Skinner, Samuel Smith, William Smith, Richard Sprigg, Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Joseph B. Varnum, Abraham Venable, and Robert Williams. NAYS.--John Allen, George Baer, jun., Bailey Bartlett, James A. Bayard, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, George Dent, Thos. Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, William Matthews, Lewis R. Morris, Harrison G. Otis, Isaac Parker, John Read, John Rutledge, jun., Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thomson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, and John Williams. MONDAY, March 5. _Diplomatic Intercourse._ [After a protracted discussion the question was taken on Mr. Nicholson's amendment, to wit, to limit the ministers of the highest grade to the two Courts of London and Paris, and it was negatived--52 to 48.] A motion was then made for the committee to rise and ask leave to sit again, which was negatived. The bill was proceeded with. Mr. S. Smith moved, to strike out certain words, and to insert others to this effect: "That the PRESIDENT OF THE UNITED STATES shall not allow to any Minister Plenipotentiary to France, Great Britain, or Spain, more than $9,000 per annum, nor to any other Minister Plenipotentiary more than $6,000." This amendment was negatived, there being only 48 votes in its favor. The blanks in the bill were next to be filled; the first, which was the permanent allowance, was filled with $40,000; the next, which was an extraordinary appropriation for this year, with $28,650. Before the latter sum was agreed upon, Mr. LIVINGSTON inquired whether the sum of between two and three thousand dollars, which he thought had been lavished away, said to be expended on persons taking leave from this country, was included in the incidental expenses which were contained under this head? He thought such an expenditure of money forbidden by the constitution. Mr. HARPER believed the incidental expenses mentioned in the estimate were expenses of our Ministers abroad. Mr. NICHOLAS understood that three Secretaries were allowed the mission at present in France. He thought this was as novel as it was unnecessary; as he believed one Secretary was sufficient for the whole. The United States had employed a number of missions at different times, but never allowed more than one Secretary to each. He had thought the law would not have warranted the practice; but on examining it, he supposed it did. Mr. HARPER said every Minister employed was entitled to a Secretary; the PRESIDENT had accordingly appointed one to each, and he could not see upon what ground the House could object to appropriating for their salaries. Mr. NICHOLAS answered, that as the law admitted of it, he should not object to the appropriation but he should move an amendment to prevent more than one secretary to a mission in future. The committee then rose and reported the bill with the amendments; which being taken up in the House and agreed to, Mr. NICHOLAS renewed his amendment to limit the salaries of Ministers Plenipotentiary to London, Paris, and Madrid, to nine thousand dollars a year, and all others to four thousand five hundred dollars, and called the yeas and nays upon it, which were taken and resulted, yeas 48, nays 52. Mr. S. SMITH then renewed his motion for limiting the salaries of Ministers to London, Paris, and Madrid, to nine thousand dollars, and others to six thousand dollars, and called the yeas and nays upon it, which were taken, and were exactly the same as upon the former question. Mr. NICHOLAS then made his motion to confine future missions to one Secretary, which was negatived--50 to 45. The bill was then ordered to be engrossed for a third reading to-morrow. MONDAY, March 19. _Relations with France._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_, _and Gentlemen of the House of Representatives_: The despatches from the Envoys Extraordinary of the United States to the French Republic, which were mentioned in my Message to both Houses of Congress, of the fifth instant, have been examined and maturely considered. While I feel a satisfaction in informing you that their exertions for the adjustment of the differences between the two nations have been sincere and unremitted, it is incumbent on me to declare that I perceive no ground of expectation that the objects of their mission can be accomplished on terms compatible with the safety, honor, or the essential interests of the nation. This result cannot, with justice, be attributed to any want of moderation on the part of this Government, or to any indisposition to forego secondary interests for the preservation of peace. Knowing it to be my duty, and believing it to be your wish, as well as that of the great body of the people, to avoid, by all reasonable concessions, any participation in the contentions of Europe, the powers vested in our Envoys were commensurate with a liberal and pacific policy, and that high confidence which might justly be reposed in the patriotism, abilities, and integrity, of the characters to whom the negotiation was committed. After a careful review of the whole subject, with the aid of all the information I have received, I can discern nothing which could have ensured or contributed to success that has been omitted on my part; and nothing further which can be attempted, consistently with maxims for which our country has contended, at every hazard, and which constitute the basis of our national sovereignty. Under these circumstances, I cannot forbear to reiterate the recommendations which have been formerly made, and to exhort you to adopt with promptitude, decision, and unanimity, such measures as the ample resources of the country afford, for the protection of our commercial and seafaring citizens; for the defence of any exposed portions of our territory; for replenishing our arsenals, establishing foundries and military manufactures; and to provide such efficient revenue as will be necessary to defray extraordinary expenses, and supply the deficiencies which may be occasioned by depredations on our commerce. The present state of things is so essentially different from that in which instructions were given to collectors to restrain vessels of the United States from sailing in an armed condition, that the principle on which those orders were issued has ceased to exist. I therefore deem it proper to inform Congress that I no longer conceive myself justifiable in continuing them, unless in particular cases, where there may be reasonable ground of suspicion that such vessels are intended to be employed contrary to law. In all your proceedings it will be important to manifest a zeal, vigor, and concert, in defence of the national rights, proportioned to the danger with which they are threatened. JOHN ADAMS. UNITED STATES, _March 19, 1798_. This Message was referred to the Committee of the Whole on the state of the Union. FRIDAY, March 23. _Georgia Limits._ MISSISSIPPI TERRITORY--SLAVERY. Mr. J. WILLIAMS called for the order of the day on the bill for organizing and disciplining the militia of the United States. Mr. GALLATIN thought it better that the House should again go into a Committee of the Whole on the bill for an amicable settlement of limits with Georgia, and for the erection of a government in the Mississippi Territory, as that subject had already undergone some discussion, and the bill had been reported with the information to obtain which it had been committed. The latter business was preferred, and the House accordingly went into a Committee of the Whole on the subject; when Mr. MILLEDGE'S amendment being under consideration, for adding to the section for appointing a provisional Government in the Natchez country, "after the consent of the Legislature of Georgia shall have been obtained," Mr. MILLEDGE observed, that the select committee had now reported all the documents on which the United States claimed a right to this territory. As to the title of Georgia, he should not enter into an inquiry as to that. He would only remark, that the State of Georgia was as tenacious of her rights as any State in the Union. But he thought it would not be improper to examine the pretended claim of the United States to this country. Looking into the journals of the Senate, he found that on the 3d of March, 1795, a resolution was passed directing the Attorney General to inquire into and make a report on the subject of the title of the United States to land in Georgia. No doubt the Attorney General not only examined the records of the State of Georgia, but those of the United States, and obtained all the information which he was able to do in the United States; but not finding sufficient ground upon which to found a title, he applied to Mr. Bayard, our Commissioner in London, who obtained a certificate on the subject from a Mr. Chalmers, Secretary to the Board of Trade and Plantations. Twelve months after he was directed to do so, the Attorney General made a report on the subject; but none of the documents which he reported went to establish the claim of the United States; nor any thing which tends to show that a cession of West Florida was ever made. But he now found among the papers got from the Senate, a letter addressed to Mr. Read of the Senate, from Mr. Livingston of New York, informing him that he encloses an extract from the instructions given by the King of Great Britain to Governor Chester. But Mr. Livingston was not known as an official character; and this document was neither official nor certified. Yet this is the ground upon which the United States claim this tract of country. Before the General Government proceeded to erect a temporary government, it ought to have better information with respect to the nature of its claim; for, to attempt to establish a government without the consent of Georgia, he thought would be stepping beyond the constitution, two clauses of which he quoted. He hoped the general powers placed in Congress for the defence of the country would not be resorted to in order to sanction the proceeding. It was said that the inhabitants of the district of country alluded to were in a situation which called for immediate attention. He allowed that it would be proper to pay early attention to them; but he thought, inconvenient as it might be, the erecting of a government might be deferred until the consent of the Legislature of Georgia could be obtained. It ought to be remembered that the State of Georgia is a member of the Union, and that it is her interest to make the cession, and he had no doubt she would do so. The convention of that State meet in May, and if application was made to them, he had no doubt the Legislature would be called together, and consent might be obtained by the month of July. He was confident the State of Georgia is desirous of promoting the interests of the United States, and that she is firmly attached to the Government; all its regulations had been constantly carried into effect there; and her consent to the establishment of a provisional government being obtained, every difficulty would be obviated. Mr. HARPER did not feel any anxiety to question the desire of the State of Georgia to promote the interests of the United States, and he was glad to be informed by her Representative, that she was so well disposed to the General Government, to which assertion he gave the fullest credit. He, therefore, should not oppose the motion of the gentleman on the ground that the State of Georgia would be likely to throw any obstacles in the way of the proposed temporary government; and he should be far from supposing, that, by the erection of such a government, the United States would assume an extra-judicial right to the territory. He was of opinion that the United States possessed the right to it, and that the most undeniable evidence of the right existed; but that evidence was not now before the House, and if it were, they were not the proper body to decide the question. He believed the amendment ought to be rejected on the ground of policy. The bill went to provide a temporary government, but contained an express clause that the establishment of this government shall not affect the rights of Georgia with respect to her right of the jurisdiction or soil of this territory--consequently, the fears of the gentleman are groundless in this respect. What, then, is the nature of the amendment? It is to prevent the erection of a temporary government in a district of country containing upwards of 5,000 souls, lying far beyond the ordinary jurisdiction of any State, with an immense wilderness intervening, in which are two nations of Indians, and in the neighborhood of the territory of a foreign nation, with whom, though we are at present at peace, when we recollect the connection subsisting between that nation and another with whom we have differences of a serious nature, we cannot reckon upon as lasting. Yet this remote and vulnerable corner of the Union is to be left defenceless for an indefinite period of time, lest we should possibly give umbrage to the State of Georgia, by providing a temporary government there before the dispute on the subject of limits is settled. And whatever may be the good disposition of Georgia towards the United States, it would require considerable time to obtain the consent proposed. Their Legislature do not meet till next winter. It was true, as had been stated, that their convention met in May, and they might, if they thought proper, call an extraordinary meeting of the Legislature; but this could not be relied upon. Besides, he saw no necessity for so much punctilio in this case, for if any State were to suffer a part of its territory, within its ordinary jurisdiction, to lie in a defenceless state, the General Government would be warranted in stepping in to defend it, and certainly they might do it in a case like the present, where no jurisdiction is exercised. And if this was not done, the petition of these people set forth, that however unwilling they should be to do so, they should be obliged to pass over to the Spanish dominions. Mr. H. said, he did not wish to have touched upon the question of right; but as the gentleman from Georgia had said we had none, he felt himself obliged to say a few words upon that point. He allowed the committee had not before them evidence of the right which would be admissible in a court of law; but though it were not such as would be admitted in a court of law, had it therefore no weight? It was at least equal to what was every day received by the committees of the House. The question was, whether the papers before them afforded reason to believe that legal evidence of the title did exist? It was a copy of a commission and instructions given by the King of Great Britain to Governor Chester, of West Florida, in the year 1770, furnished by the gentleman who was Secretary to the Governor at that time, and whose duty it was to keep the records of that Government. But the gentleman from Georgia said, search had been made in the offices of the British Government for the original, of which this paper was a copy, and it could not be found. But this was no proof it did not exist. If it does exist, legal evidence may be obtained from it, and this paper shows that the Natchez country was included within the territory of West Florida, and that it ceased in the year 1770 to be a part of Georgia. He believed, however, this question ought not now to be acted upon; but that from necessity, and the exigencies of the case, a temporary government ought immediately to be provided for this district of country, and afterwards settle the point of right with Georgia by negotiation; and if it was found in the end that the United States had no title to it, the Government which had been established could be withdrawn. But it was stated that the Legislature of Georgia would readily consent that the United States should become possessed of this country. But what were the terms upon which they proposed to cede it? They required, as one of the conditions, a million and a half of dollars in six per cent. stock, and as another (which was infinitely harder, since it might not be in our power to comply with it, as it depended upon the will of the Indians) that the United States will guarantee the relinquishment of the Indian claim to the land on the east side of the Chatahoochee, within a certain number of years. There is little hope, therefore, that the State of Georgia will propose any terms to which the United States can agree, as it had been seen that the Legislature of that State had rejected a bill by a great majority, which proposed the price to be one million of dollars with the other condition. Of course it would be very imprudent to rest the establishment of a government in this quarter upon an agreement to terms like these. Besides, the amendment would affect the right claimed by the United States. To wait for this consent would be tantamount to confessing we had no right, and arm Georgia with a strong weapon against us in the final settlement. Mr. H. contended that there was nothing in the constitution which could prevent the proposed measure, since it was absolutely necessary to preserve the people from falling into anarchy, and to prevent a foreign Government from putting arms into their hands. It was also a quarter of the Union which it was necessary to preserve, if we wished to secure the free navigation of the Mississippi, which we had lately obtained by the Spanish treaty; for if this country were invaded by the Indians, or involved in civil war, we could not have the benefit of the navigation of that river. He hoped, therefore, when so many considerations were opposed to it, the amendment would be disagreed to. Mr. NICHOLAS understood from the gentleman from South Carolina, that it was not intended to insist upon the title of the United States to the territory in question; and if they were not ripe to decide that the land is the property of the United States, he thought they ought not to establish a Government there without paying some respect to the rights of Georgia, by obtaining her consent, as it might prevent that amicable settlement of which we had at present the prospect. If that State set the value upon the land which had been mentioned, would it not excite the utmost jealousy in that country to take forcible possession of it? To do this would certainly be to establish an influence in favor of the United States, which would be fatal to the claim of Georgia. No argument had been adduced to show the right of the United States to this territory, but merely to show the convenience of the measure. The gentleman from South Carolina might as well say that a certain district in Virginia is not so well governed as it might be, and, as the people would be happier under the Government of the United States, propose to take possession of it. But it was said Georgia had not begun to govern this territory. Neither have the United States. She may, for aught we know, be preparing to do it now. He thought there was not a shadow of pretence for taking the course proposed, without first consulting the Legislature of Georgia. He hoped the amendment would be agreed to. Mr. J. WILLIAMS said it appeared to him, that if this amendment were to prevail, the bill might as well be voted out altogether. The bill had two objects, viz: a settlement of limits, and the fixing of a temporary government. It was clear to him, from the papers before the committee, that the United States had a clear title to the country in question, and, if this was not the case, there was a saving clause in favor of the Georgia claim. He thought that State ought to be happy at the idea of the United States fixing a government there, as it would assist them in their defence against the Indians. If gentlemen turned to the acts of Congress, it would be found what a vast expense the United States had heretofore been put to in defending the frontier of that country. He thought that State had been dealt with in a very favorable manner. It was not long since $100,000 were paid to their militia for defending their frontier. He complimented the gentleman from Georgia for having advocated so ably the cause of his State. But he thought that State ought to come forward and show what title she had to the country. It had been ceded to the United States by the Spanish Treaty, and the inhabitants there had a claim upon the General Government for protection, and surely if the State of Georgia for ever refused to give its consent to a government being established there, they were not for ever to be without government. The people there had petitioned Congress for a government, of which doubtless the State of Georgia was acquainted; and they ought to come forward in the business. Their silence proved to him that they had no title to that country. Mr. W. referred to the manner in which other cessions had been made to the Union, and said he thought Georgia ought to rejoice at the proposed establishment, as it would not only be benefiting that State, but the Union at large. Mr. MACON said if the bill was intended to be conformable to the title, the amendment ought certainly to be agreed to; as, if the United States undertook to establish a government at the Natchez, without the consent of Georgia, it could not be said to be amicably done. This, he said, was neither the proper time nor place of deciding to whom this territory belongs. The great object ought to be to get a government there, and not to talk about what had been done for Georgia. And if the consent of Georgia could be obtained previous to the establishment of this government, it was certainly desirable that it should be obtained. This would not injure the claim of either. When this was done, some mode might be agreed upon by which the dispute at present subsisting, might be settled. This course would prevent any difficulties, and the consent might be obtained by the time the government could take effect. Mr. OTIS said if the object of the present bill, could be obtained in a mode which would preserve the rights of all parties as they at present stand, such a course would be preferable to that which should appear to relinquish the right of one of the parties. It struck him that this might be effected by the bill as it now stands. The United States assumed their right to the land, yet they do not say they mean to turn a deaf ear to the claim of Georgia. But, if the amendment were adopted, it would go to relinquish the title of the United States, and this, he thought, would be an excess of complaisance to the State of Georgia. The only plausible reason given in favor of the amendment was, that if the bill passed without it, it would give offence to, and excite jealousy in, the State of Georgia. But how? Because Congress passes an act to settle the interfering claims, and directs the appointment of commissioners to give them a compensation for what we might take without it? Or, because we say we will enter upon the territory, to which we always laid claims, in order to preserve peace and order among the inhabitants, and to secure it against the attack of the Indians or of a foreign power? Gentlemen seem to take it for granted that Georgia has possession of this territory; whereas those who oppose the amendment, contend it is a vacant possession, and that we have a right to take possession of it, to hold it, not until an army is raised to take it from us, but until the legal question of right shall be decided. And it could not be said that there was any thing offensive in this. If a man, for instance, were to enter upon a piece of land, and say he would never give it up until he was driven from it, it would certainly be an act of violence; but if he enter upon it only to take care of it, until a legal decision can be had as to his right, such an act was perfectly justifiable; and this was intended in the present case. Mr. KITTERA hoped, if the bill passed at all, it would be without the amendment. This territory was never yet governed either by the United States or Georgia, but had been ceded to the United States by Spain, in our late treaty with that power, and we ought to retain possession of it until the title to it was clear. In this view of the subject, he could not see how the State of Georgia could take offence at our holding the territory until the existing dispute was settled. Mr. BALDWIN said it was to be regretted, as this was the last instance in which this question of cession could be presented to Congress, that the situation of the persons settled upon this territory was such as should seem to constrain gentlemen to depart from the course of their former proceedings on this subject. He was fully impressed with the situation of that people; but he thought little delay would be occasioned by the proposed application to the State of Georgia; nor would that consent weaken, as had been suggested, the title of the United States. Or, if there was any force in the objection, it might be guarded against by adding a few words in the section which speaks of preserving the claim of Georgia as it now stands. Mr. B. said, gentlemen who had turned their attention to the map, would find that the territory in question is situate at the south-west corner of the United States; the southern boundary is latitude 31, and the western boundary the Mississippi, which is also the boundary of the United States. Its extent is about 280 miles north and south, and coming this way, about 400 miles. That part upon which this bill is bottomed, is little more than one-third part of the whole of that territory. The United States now reckon latitude 32-1/2 as the boundary of Georgia; but in the treaty, and till very lately, it was always reckoned to be 31, which is also the boundary of the United States. This was, at any rate, a new discovery--the official documents in support of which he had not seen. It was now supposed that West Florida extends to latitude 32-1/2, and not to 31, which is one degree and a half more than formerly supposed. If this were so, he wondered it had never before been discovered by England or Spain. Why was the boundary of the United States always fixed at 31? He feared, that since it became our interest to extend the boundary, we had suffered that interest to color our judgment. The instructions drawn out for our Minister by a former Secretary of State were, "you are to contend for latitude 31." The ground upon which he had stated this, Mr. B. thought irresistible, and it was thought we might risk a war upon it. Besides, this bill would not cure the evil for which it was intended. There might be inhabitants still further north; this bill provides only for such as are settled within what had been called the Province of West Florida. Mr. B. said, he had never seen the documents which authorized this extension. He had, indeed, seen the remarks of Mr. Chalmers, who, he believed, was Secretary to the Board of Trade and Plantations in London; but he believed he had drawn what he had said from the same document which was now reported, viz: the extract from the copy of the instructions said to have been given to Governor Chester; but the order of King and Council for extending it, the Attorney General says, in page 11th of his report, is not to be found. Gentlemen had said, why does not the State of Georgia manifest a disposition to make some arrangements respecting the territory in question. They had done so. After the Revolutionary war in 1783 or 1784, when there was an expectation that the forts would have been evacuated, they laid out a county there, and all the titles were declared good, and where there was no other title occupancy was declared to be sufficient, and warrants were to be issued accordingly. When he first came to attend his duty in Congress, the Minister from Spain arrived about the same time, when he put in the claim of Spain to this territory, which prevented any thing further from being done; and as soon as it was found that the arrangements made by Georgia gave umbrage to the Spanish Government, they were given up. In the year 1788, the State of Georgia passed an act for making the cession of this territory to the United States. This act Congress referred to a committee, which reported that Government ought not to accept of the cession on the terms proposed. He believed the same disposition to make the cession which always had existed, now existed. He believed the disposition of the government of Georgia was as favorable to the interests of the United States as that of any other State. He did not rise to speak their praises; but he could not sit to hear them blamed without notice. If the proposed government was proceeded with without the consent of Georgia, it would be a dereliction of principle. He thought some sort of regulation might be made among the people for their own government, until Georgia was applied to. This was not a new case. There had been great settlements in several parts of the country long before any government was provided for them. Mr. B. said, he did not mean to undervalue the claim of the United States; they had always a claim in every case of cession, but he hoped, except there was an absolute necessity for it, the usual course of proceeding would not be departed from. Mr. GORDON said, the gentleman from Georgia complained that a different course was proposed now to be taken than had been adopted heretofore. In answer to this, it was sufficient to say, that where the circumstances of cases differed, different courses were necessary. With respect to the merits of the bill, he thought it stood right at present. The situation of the people in the district alluded to, was such as required immediate attention. If gentlemen were not convinced of this, he saw no necessity for going into the business before the subsisting dispute between Georgia and the United States was settled. He believed, however, there was no doubt of the fact; and surely the gentleman from Georgia would not wish that these people should live under a military government for any length of time. Being satisfied of this point, he wished the bill to pass without the amendment, as that might defeat altogether the purpose of the bill. The claim of Georgia he looked upon at least as doubtful; and as he considered the United States as bound to protect all its citizens, he thought they would not be justified in returning these people for answer, "we cannot attend to your wants until we have settled our dispute with Georgia." Georgia might refuse to negotiate the subject, and by that means protract the business in a manner which would be very inconvenient, and perhaps drive the people under another government. Besides, if Georgia should refuse its consent to the establishment of a government in that quarter, it would, nevertheless, be proper to establish one. The United States, Mr. G. said, came into possession of this territory by treaty. But suppose it was now in possession of a foreign power, would Georgia attempt to drive them from it? Certainly not. It would amount to the making of war on a foreign power. Suppose Georgia had a title to this territory, had not the United States the power of depriving Georgia of it? Suppose, in their treaty with Spain, the United States had surrendered to Spain one-half of this land, or the whole of it, Georgia would have been bound by such an act; and having got this territory by treaty, they had certainly a right to establish a provisional government over it, until the dispute, as to the title, was settled. The question of this amendment was put and negatived by 46 to 24. Mr. THATCHER rose and said, he should make a motion, touching the rights of man, by moving to strike out the excepting clause in the 3d section of the bill. [It appears that in the ordinance establishing a government in the North-western Territory, slavery is expressly forbidden, and this section of the bill directs that a government similar in all respects to that established in the North-western Territory shall be established in the Mississippi Territory, except that slavery shall not be forbidden.] Mr. HARPER did not believe his friend's motion would be a proper mode of supporting the rights of man. In the North-western Territory the regulation forbidding slavery was a very proper one, as the people inhabiting that part of the country were from parts where slavery did not prevail, and they had of course no slaves amongst them; but in the Mississippi Territory it would be very improper to make such a regulation, as that species of property already exists, and persons emigrating there from the Southern States would carry with them property of this kind. To agree to such a proposition would, therefore, be a decree of banishment to all the persons settled there, and of exclusion to all those intending to go there. He believed it could not, therefore, be carried into effect, as it struck at the habits and customs of the people. Mr. VARNUM did not know that the gentleman from South Carolina wished to promote the rights of man. His observations showed, at least, that he did not wish to support the rights of all men; for where there was a disposition to retain a part of our species in slavery, there could not be a proper respect for the rights of mankind. It was true that this kind of property is held in the Southern States, because they cannot, consistent with the safety of the people of those States, liberate them on account of their very great numbers. But they considered it as a great burden to be obliged to hold them. He hoped, therefore, Congress would have so much respect for the rights of humanity as not to legalize the existence of slavery any farther than it at present exists. He believed the gentleman from South Carolina was mistaken in saying that such a regulation would oblige all the inhabitants settled in this territory to remove. The provision need only extend to the forbidding of slaves being taken there. What, said he, is the situation of the North-western Territory at this time? Land there is worth more than in some of the old settled States; and he believed this high price of land, and prosperous condition of the country, was entirely owing to the absence of slavery. And if the Southern States could get clear of their slaves, the price of their land would immediately double. At any rate, he hoped the United States would prevent an increase of this calamity; for he looked upon the practice of holding blacks in slavery in this country to be equally criminal with that of the Algerines carrying our citizens into slavery. Mr. RUTLEDGE wished the gentleman from Massachusetts would withdraw his motion, not from any apprehension he had that it would obtain; but he hoped that he would not indulge himself and others in uttering philippics against a practice with which his and their philosophy is at war. He submitted to the gentleman's candor whether it was proper, on every occasion, to do this--to bring forward the Southern States in an odious light, or to give his neighbor and colleague an opportunity of bringing them forward, and comparing them with Algerines! He thought propriety and decency towards other members required that such language should be checked. He believed, if his friend from Massachusetts had recollected that the most angry debate which had taken place during this session was occasioned by a motion on this subject, he would not have brought forward the present question. One gentleman says, you call these men property; another, you hold these men in chains; a third, you violate the rights of man! And are not these men property? Do not the people in this territory hold them as such? Did they not hold them under the Spanish Government? And must we thus address these people: "We have made a treaty which puts you under the mild government of the United States, but we must take from you your property; or rather, we must set your blacks at liberty to cut your throats. The rights of man was the watch-word of the day, and Congress have determined that you shall not possess this property. They cannot as yet do slavery away altogether--the day is not yet arrived; but they have determined it shall not exist in the Mississippi Territory." These, said Mr. R., are not mere speculative opinions. They lead to more mischief than gentlemen are aware of; and he trusted if the gentleman from Massachusetts could be convinced that the discussion of such questions as the present did much mischief in certain parts of the Union, he would not bring them forward. He hoped he would withdraw the present motion. Mr. GORDON thought that when the gentleman from Massachusetts recollected that, by the establishment of this government, the United States do not establish their exclusive right to this territory, he would consent to withdraw his amendment, as that went to say that we had the absolute right of jurisdiction, and were determined to exercise it; and in making a difference between the ground on which property was held there from that on which it was held in Georgia, they would militate against the 5th section of the bill. Mr. OTIS hoped his colleague would not withdraw his motion; and the reason why he wished this was, that an opportunity might be given to gentlemen who came from the same part of the Union with him to manifest that it is not their disposition to interfere with the Southern States as to the species of property in question. With respect to the existence of slavery, the House had often heard gentlemen, who are owners of slaves, declare that it is not their fortune, but their misfortune that they possess them, but who still keep them, and claim the right of managing them as they think proper. He thought it was not the business of those who had nothing to do with that kind of property to interfere with that right; and he really wished that the gentlemen who held slaves might not be deprived of the means of keeping them in order. If the amendment prevailed, it would declare that no slavery should exist in the Natchez country. This would not only be a sentence of banishment, but of war. An immediate insurrection would probably take place, and the inhabitants would not be suffered to retire in peace, but be massacred on the spot. By permitting slavery in this district of country, the number of slaves would not be increased--as if emigrants from South Carolina or Georgia were to remove into this country they would take their slaves with them; and he could see nothing in this which could affect the philanthropy of his friend. The North-western Territory is inhabited by a description of persons who have not been accustomed to hold slaves, and therefore the restriction is agreeable to them; but the territory in question will be settled by people from the Southern States, who cannot cultivate the ground without slaves. He hoped, however, the motion would be persisted in, and negatived by a large majority. Mr. D. FOSTER hoped, if the motion was not withdrawn, that a long debate might not be had upon it. Mr. THATCHER said he should not withdraw his motion, and the more it was opposed, believing his cause to be good, the more obstinate he should be in its support. Mr. GILES wished to suggest a single idea. The present motion was brought forward from the avowed motive of furthering the rights of man. He did not know whether the tendency of it was calculated to ameliorate the condition of the class of men alluded to; he believed not. On the contrary, it was his opinion, that if the slaves of the Southern States were permitted to go into this Western country, by lessening the number in those States, and spreading them over a large surface of country, there would be a greater probability of ameliorating their condition, which could never be done whilst they were crowded together as they now are in the Southern States. Mr. HARTLEY said, he had himself intended to have brought forward an amendment similar to the present, but, on inquiry, he found so many difficulties in the way, that he was obliged to abandon it. He found it would interfere with, and be a serious attack upon, the property of that country. He was sorry it was not in the power of Congress to gratify the wishes of philanthropists in this respect, by doing away slavery altogether; but this could not be done at present, and as he believed the present amendment, if carried, would be attended with bad effects, he should vote against it. Mr. GALLATIN said, if he saw any of the great inconveniences which were foretold as likely to arise from this amendment, he should certainly vote against it. He should be extremely averse to the adoption of any principle which should either directly or indirectly lead to the production of any commotion or insurgency in any State where there is a great number of slaves. He did not see how any such effect could be produced by the present motion; for, notwithstanding what had fallen from the gentleman from South Carolina, it did not appear to him how a regulation with respect to another Territory can affect the peace, tranquillity, or property of any other State. How the forbidding of slavery in the Mississippi Territory could produce a worse effect than the same regulation in the North-western Territory, or in Pennsylvania, or in several other States. The amendment, therefore, could not be opposed on that ground; it must be on some other. Ought it to be rejected on the ground of jurisdiction? Certainly not. The United States intend to exercise jurisdiction over that Territory, and was there any more reason for excepting this jurisdiction than any other? If we establish this Government we expect it to be permanent; and if we believe it is not conducive to the happiness of any people, but the contrary, to legalize slavery, when we are about to form a constitution for a Territory, its establishment ought to be prevented. But, if this amendment is rejected, we establish slavery for the country, not only during its temporary government, but for all the time it is a State; for, by the constant admission of slaves, the number will increase to a certain degree, and when the Territory shall become a State, the interest of the holders will be such as to procure a constitution which shall admit of slavery, and it will be thereby made permanent. Having determined slavery was bad policy for the North-western Territory, he saw no reason for a contrary determination with respect to this Territory. There was, then, only one solitary objection to the amendment, and that might easily be obviated. It was with respect to the situation of the people already settled there who are possessed of slaves. It would be extremely impolitic and unjust to declare by ordinance that the people settled there, either under the British, Spanish, or Georgia governments, should be deprived of this kind of property; and if this was the effect of the amendment, he would vote against it. Such a regulation would be attended with the worst of consequences; but other words may be easily introduced to guarantee the property of the persons already settled there. By the laws of the different States, Mr. G. said, the importation of slaves is forbidden; but if this amendment does not obtain, he knew not how slaves could be prevented from being introduced by the way of New Orleans, by persons who are not citizens of the United States. He hoped, therefore, the amendment would be agreed to. Mr. NICHOLAS believed it not only to be the interest of the Southern States, but of the United States, that this motion should be rejected. They were to legislate for the whole of the Union, and ought to consult the happiness of the whole. It was not for them to attempt to make a particular spot of country more happy than all the rest. If it was a misfortune to the Southern States to be overwhelmed with this kind of property, he asked if it would not be doing service not only to them but to the whole Union, to open this Western country, and by that means spread the blacks over a large space, so that in time it might be safe to carry into effect the plan which certain philanthropists have so much at heart, and to which he had no objection, if it could be effected, viz: the emancipation of this class of men? And when this country shall have become sufficiently populous to become a State, and the Legislature wishes to discountenance slavery, the increase of slaves may be prevented, and such means taken to get rid of slavery altogether, perhaps in conjunction with other parts of the United States, who by that time may be in such a situation as to admit of it, as shall appear prudent and proper. Mr. THATCHER was of an opinion directly opposite to the gentleman who had just sat down. Indeed, they seldom did agree in sentiment; to-day they differed very widely. He believed the true interest and happiness of the United States would be promoted by agreeing to this amendment; because its tendency was to prevent the increase of an evil which was acknowledged by the very gentlemen themselves who are owners of slaves. Indeed the gentleman from Virginia (Mr. NICHOLAS) had frequently declared in that House, that slavery was an evil of great magnitude. In this respect they agreed in opinion; for he considered the existence of slavery in the United States as the greatest of evils, an evil in direct hostility to the principles of our Government; and he believed the Government had the right to take all due measures to diminish and destroy the evil, although in doing it they might injure the property of some individuals; for he never could be brought to believe that an individual can have a right in any thing which goes to the destruction of our Government, viz: that he can have a right in a wrong. A property in slaves is founded in wrong, and never can be right. He believed Government must of necessity put a stop to this evil, and the sooner they entered upon the business the better. Mr. T. said, he honestly confessed he did not like to hear much said in that House about the rights of man; because of late there had been much quackery as to these rights. But, because these rights had been abused, it did not follow that man has no rights. Where legislators are freely chosen by the people, and frequently renewed; where a law cannot be passed without affecting the interests of the persons who pass it, these rights cannot greatly be abused; but, when we take upon us to legislate for men against their will, it is proper enough to say something about the rights of man, and to remind others, who are frequently heard speaking of these rights, that by nature these enslaved men are entitled to rights; and on that account it was, when he made this motion, that he said he would make a motion touching the rights of man. The reasons offered against the amendment by the gentleman from Virginia, were a little singular. He contended that certain States were overflowing with slaves, and if not colonized by opening this wide tract of country to them, they would not be able to keep or manage them. He always thought that colonizing these people tended to increase the race far beyond what it would be when penned closely together. Mr. GILES explained, by saying, that he had said nothing about decreasing the number of blacks, but of spreading them over a larger surface of country. Mr. THATCHER said, he understood the gentleman's argument perfectly; though he did not seem to understand it himself. The gentleman wished to take the blacks away from places where they are huddled up together, and spread them over this territory; they wished to get rid of them, and to plague others with them. But they had them, and if they determined to keep them, he wished only they should be plagued with them. We are, said Mr. T. about to establish a Government for a new country. Ours originated from, and was founded on the rights of man, upon which ground we mean to protect it, and could there be any propriety in emanating a government from ours, in which slavery is not only tolerated, but sanctioned by law? Certainly not. It was used as an argument against this amendment that this Territory would be peopled by emigrants from the Southern States, who cannot work for themselves; and on that account they must have slaves to work for them. If this be true, it makes the people of the Southern States only fit to superintend slaves. The language of this is, that these people cannot subsist, except they have slaves to work for them. For the reason he had stated, he hoped the amendment would be agreed to; but if gentlemen thought those who at present hold slaves in the Territory should be protected in them, he should not be opposed to their holding them for a limited period. The question was put and negatived, there being only 12 votes in its favor. Adjourned till Monday.[29] MONDAY, March 26. _Georgia Limits._ MISSISSIPPI TERRITORY--SLAVERY. The House again resolved itself into a Committee of the Whole on the bill for an amicable settlement of limits with the State of Georgia; when, after striking out the words "claiming under it," in the fifth section, and adding two new sections, the committee rose, the House concurred in the amendments, and the bill was ordered to be read a third time to-morrow. One of the sections was moved by Mr. MILLEDGE, and was in the following words: "That, from and after the establishment of the said government, the people of the aforesaid territory shall be entitled to and enjoy all and singular the rights, privileges, and advantages, granted to the people of the territory of the United States north-west of the river Ohio, in and by the aforesaid ordinance of the 13th day of July, in the year 1787, in as full and ample manner as the same are possessed and enjoyed by the people of the said last-mentioned territory." The other, moved by Mr. HARPER, was to the following effect: "That, from and after the establishment of the aforesaid government, it shall not be lawful for any person to import or bring into the said territory, from any part or place without the limits of the United States, any slave or slaves, on pain of forfeiting three hundred dollars for every slave so brought, one-half to the United States, and the other half to the person who shall sue for the same; and every person so imported shall be entitled to and receive his or her freedom." When this section was proposed, Mr. THATCHER moved to strike out the words "without the limits of the United States," so as to have made it unlawful to have brought any slave there; but the motion was not seconded. TUESDAY, March 27. The bill from the Senate for an amicable settlement of limits with the State of Georgia, was passed with amendments. _Relations with France._ Mr. BALDWIN hoped the House would now resolve itself into a Committee of the Whole on the state of the Union. After a few observations from Mr. SEWALL against, and from Mr. NICHOLAS in favor of going into the business of the Union, the House resolved itself into a Committee of the Whole on that subject, Mr. DENT in the chair; when the PRESIDENT'S Message of the 19th instant having been read, Mr. SPRIGG rose and observed, that every subject which came before the Committee of the Whole on the state of the Union must necessarily be important; but he believed there never was any more so than that which was presented to them by the Message of the PRESIDENT which had been read. Separated as we are from Europe by an immense ocean, it were to be wished that we were equally separated from its political concerns, and that we should have to do with them no farther than what relates to commerce. This, unhappily, had not been the case, and there now existed painful differences between this country and the French Republic. The Message which had just been read was an evidence of this. In this situation of things, it appeared necessary that the House should declare whether this country was to have peace or war. This was a subject in which the best interests of the Union were deeply concerned, and he hoped the business would be met fully and fairly. The PRESIDENT had informed the House that the present state of things is changed from what it was when he prohibited the arming of merchant vessels, and that therefore he had withdrawn that prohibition. Whether the order formerly issued by the PRESIDENT for this purpose was in conformity to the spirit or letter of the law, was not of importance now to inquire; the effect had been beneficial, and in the same proportion as the prohibition had been beneficial would be the evils of withdrawing it. In order to ascertain the sense of the committee upon what measures may be proper to be taken in the present crisis, he should offer the following resolutions to their consideration: _Resolved_, That it is the opinion of this committee, that under existing circumstances, it is not expedient for the United States to resort to war against the French Republic. _Resolved_, _&c._, That provision ought to be made by law for restricting the arming of merchant vessels, except in cases in which the practice was heretofore permitted. _Resolved_, _&c._, That adequate provision shall be made by law for the protection of our sea-coast, and for the internal defence of the country. The first resolution being taken up, Mr. SITGREAVES said that, for himself, he could not agree to the proposed resolution. He did not mean, by this disagreement, to express an opinion, that, at this moment, it was expedient to go to war with the French Republic; but he thought the formal declaration of the contrary sentiment was highly improper. The present is a period of menace and of danger, of injury and outrage, and whatever might be the expediency of the actual crisis, yet he had no hesitation to avow his belief that the time is not far distant when war must be resorted to, or the national honor and interest be abandoned. The conduct of France was calculated to excite or justify no other expectation; and under such circumstances, with such prospects, he could by no means consent to a formal declaration of non-resistance. Besides, it is contrary to the usual and ordinary course of Legislative proceeding, to pass mere negative resolutions. The power of declaring war being vested in the Congress, so long as the Congress shall forbear to declare war, it is a sufficient expression of their sentiment that such a declaration would be inexpedient: it is the only proper expression of such a sentiment; and it can be no more right to resolve that we will not resort to war, than it would be to pass an act to declare it would be inexpedient to make a law for the regulation of bankruptcy or any other municipal concern. However desirable, therefore, he admitted unanimity to be, at a time like the present, he found it impossible to agree to the resolution. Mr. BALDWIN did not agree with the gentleman last up; he thought the resolution proper and free from exception. We were, he said, twenty-three years ago, when we were about beginning the war with Great Britain, in a situation similar to the present; but we were then without many advantages which we now have. We were then without any common tie, except what arose from common interest. No means existed of holding conference together, but nature pointed out the course to be taken, and representatives from different parts of the country were travelling at the same moment to hold counsel together, and to speak their sentiments. The gentleman who has just taken his seat apprehends war must be the consequence of our present situation. Mr. B. said this was the first time that the question of declaring war had ever presented itself, and upon which, he believed, there might be a difference of opinion as to the exercise of that power. He did not mean to say wantonly that our constitution is imperfect; but every society which has a written constitution must have recourse to it for direction. It would be improper therefore to inquire what agency the Legislature ought to have in the declaring of war; whether it is not proper that all the circumstances relative to such a state should be before them. He did not believe it was intended that this House should merely be the instrument to give the sound of war; the subject seemed to be placed wholly in the hands of the Legislature. This was the understanding of the country when there was no Government in existence, and he believed this was the meaning of the constitution. The country is now every where agitating this question of peace or war, and he trusted they would not be left to grope their way in the dark on this important question. The PRESIDENT had informed the House that all hopes of a negotiation were at an end. He was willing to take the information as it was given, without going into the Cabinet of the Executive, and to take measures accordingly. But when some persons declare that the present state of things is already a state of war; that the country is going on in it; that the die is cast, and that we have nothing to do but to go on with it as well as we can, if the House does not believe this to be a true position, this resolution ought to be agreed to, which went to say that the House does not consider the present a state of war, but a state of peace. Mr. OTIS said, if the gentleman who made the motion would consent to use the constitutional words on this occasion, he apprehended there would be no difference of opinion. He meant that instead of saying "to resort to war," to say "to declare war." Mr. SPRIGG said, the resolution which he had proposed had not been the work of a moment, and he did not feel disposed to make the alterations proposed. Mr. OTIS added, then he should propose to strike out the words "resort to," and insert "declare," as he was of opinion with the gentleman from Pennsylvania, (Mr. SITGREAVES,) that the only subjects fit for discussion were active measures, and that it was not regular to declare when they would not do a thing. Mr. PINCKNEY was desirous of settling this motion by the previous question; but he was informed by the Chair that such a motion would not be in order in a Committee of the Whole. Mr. DAYTON (the Speaker) said, that he hoped his friend from Massachusetts would withdraw the motion he had just offered, in order to make room for one he had to offer, which would render the first resolution more general, more innocent, and yet equally or more efficacious, and would test the sincerity of the advocates of that resolution as to their professed anxiety for the maintenance of peace. Upon Mr. OTIS withdrawing his motion, Mr. D. moved to strike out the words "against the French Republic" and declared that although he deemed the whole resolution unnecessary, and considered it as not naturally growing out of the PRESIDENT'S Message, which did not call upon us to declare or make war, yet as it must be the intention of the mover, or of some other member to follow it up with like declarations in relation to all other nations with whom the United States had any intercourse, provided they acted consistently, he thought it better to make the resolution a general one, even if it should be afterwards negatived. He, for himself, was as ready to say that, under existing circumstances, it was as expedient for the United States to go to war with any other nation as with the French Republic. He saw no reason why that particular power should be singled out in the manner proposed; and as he was for cultivating peace, not with one only, but with all the nations of the world, he was willing so to declare his disposition, if any declaration was proper on the occasion. It was also to be observed, that it could not with propriety be objected against the amendment that there was no other nation with whom we were in danger of entering into hostility, for the tables of the House had been loaded with communications relative to the encroachments and unreasonable demands of another country, which had occasioned an apprehension that the United States would be driven to the necessity of a war in order to obtain possession of its own territory. If, therefore, gentlemen were anxious to cultivate harmony with the French only, then the resolution as first moved, was proper for their adoption; but if the preservation of peace with all was their real object, then he trusted that the amendment could not with propriety be rejected by those gentlemen who had introduced and advocated a proposition the utility of which, under any modification, he owned for himself, he could not discern, although he was willing to render it as unexceptionable as possible before it was decided upon. Mr. SPRIGG informed the gentleman from New Jersey that the reason why the French Republic was inserted in the resolution was because it was founded on the Message of the PRESIDENT, which related solely to the French Republic. For his part, he was not desirous of war with any power on earth. Mr. HARPER seconded the motion of the gentleman from New Jersey, because he thought it would be better in that shape. He had no particular objection to the resolution as proposed, only that he thought it a resolution about nothing; but as it might gratify the mover and some others, he should not object to it. He was not himself disposed for war, but for peace, while peace could be preserved. But he never said, and would not say, that war was the worst thing which could happen to this country; he thought submission to the aggressions of a foreign power infinitely worse. If gentlemen meant by agreeing to this resolution, to prevent the country from being put into a state of defence; if they meant by it to effect an entering wedge to submission, he trusted they would find themselves mistaken; for though he believed the true interest of the country lay in peace, yet he was not disposed to recede from any measures which he thought proper through fear of war. Or did gentlemen intend, by this question of peace or war, to enlist the popular prejudices in favor of peace, in order to prevent proper measures being taken for the defence of the country? If this was their view he should be the first to strip off the disguise. He trusted that this was not the case, as he saw it connected with another resolution which proposed the taking of measures for the defence of the country. The question at present, said Mr. H., is not a question of war, but of defence; and no two questions are more distinct. If gentlemen confound these two questions, and are determined to take no measures of defence lest they should lead to war, let them say so. He believed, however, the distinction was well understood by the American people. Mr. GILES believed this the proper time to declare whether the country should remain in peace or go to war. He thought the resolution proper as it stood, because founded on the Message of the PRESIDENT, in which the French Republic is only named. There was a part of that Message, he said, which, in his opinion, amounted to a declaration of war. The PRESIDENT tells the House, "that the situation of things is materially changed since he issued his order to prevent the arming of merchant vessels." As far as he understood the situation of the United States at that time, it was a state of neutrality. If that state is changed, and the present is not a state of neutrality, he wished to know what is. He knew only of two states, a state of neutrality and a state of war; he knew of no mongrel state between them. Therefore, if the PRESIDENT OF THE UNITED STATES, could declare war, we are now in war. Believing, however, that Congress had alone the power to declare war, he thought it time to declare what the state of the nation is. He did not know whether the object might not be answered by the resolution being general, as he was and always had been (notwithstanding insinuations to the contrary) against war with any nation upon the earth. He looked upon it as the greatest calamity which could befal any nation; and whatever may be the phantoms raised in perspective of national honor and glory in such a state, they will, in the end, all prove fallacious. He believed no nation ought to go to war except when attacked; and this kind of war he should be as ready to meet as any one. Mr. G. said, gentlemen were continually speaking of the degraded state of the nation, when their own measures had led to it. (Mr. HARPER denied that he had ever said the nation was in a degraded state.) Mr. G. was not sure that he had said it, but he believed he had frequently heard it. He believed we were in a state which required the utmost vigor; but he thought every measure should be avoided which might involve the country in war. For if we were to go to war with the French at present, he knew not what ever could take place which could produce peace; it must be a war of extermination. Mr. G. did not know that the present question was very important; but believing it strictly conformable to the Message of the PRESIDENT, he should be in favor of it as it stood, and against the amendment. Mr. NICHOLAS considered this amendment as defeating the resolution. Was there nothing, he asked, which called for a declaration of the kind proposed? Was it not clear to every one that the country was going fast into a state of war, and (in the words of Mr. SITGREAVES) was it not to be expected? Ought not the Legislature then, (who alone have the power of declaring war,) to determine the state of the country, and say whether they mean to go immediately to war or not? He thought the necessity of the resolution was sufficiently evident, by the motion which had been made to change the words from "resort to war," to declare war; in the one case the mischief was met, whilst the other meant nothing. And if gentlemen were ready to say we were not prepared to declare war, and at the same were not ready to say it is not expedient to resort to war, it proved that they thought war might be made without being declared. He asked whether gentlemen did not believe the Executive had taken measures which would lead to war? And that if he were at liberty to act upon a change of circumstances between this country and others, Congress were not brought into a situation in which they had no choice? Many discussions had heretofore taken place on the constitution, but he had never heard it doubted that Congress had the power over the progress of what led to war, as well as the power of declaring war; but if the PRESIDENT could take the measures which he had taken, with respect to arming merchant vessels, he, and not Congress, had the power of making war. He asked whether, when report went so far as to speak of an alliance, offensive and defensive, with a foreign country, it was not time to come to a declaration on the subject? Suppose such an alliance was formed, would it not be said that Congress are bound to carry it into effect? He knew it would, though he should resist the doctrine. Mr. N. said, he should be as unwilling to submit to any foreign country as the gentleman from South Carolina; but he could not, like that gentleman, say he was not afraid of war. I am, said he, afraid of it. This country affords me all the happiness I can wish or hope for, and I know war will be destructive to it. What was the difference between himself and that gentleman in this respect, he could not tell; it was to him surprising that any gentleman should be without fear as to the mischiefs of war. He was of opinion that the step taken by the PRESIDENT, with respect to merchant vessels, went to declare that we rested our cause on arms, which was not calculated to produce any good effect in our favor. He hoped the amendment would not be agreed to; if it was, he should vote against the resolution itself; and he did not think the gentleman from New Jersey, when he read the Message of the PRESIDENT, could think there was as much danger of a war with any other country as with the French Republic. Mr. BROOKS agreed with the gentleman who brought forward this resolution, so far as it declares we are not prepared to resort to war. He believed no nation or man who had common understanding could be fond of war. The people of this country have yet the recollection of the fatal effects of the late war. But there are two kinds of war, offensive and defensive. He wished gentlemen to distinguish between them; for though he was ready to declare against offensive war, and to submit to small injuries rather than make defensive war; yet he was not willing to say he should not be ready to defend his country against the attack of any foreign power whatever. He hoped he should be believed in this declaration, as he had formerly been employed in the defence of it; and if gentlemen meant that though foreign nations attempt to invade our territory, and to reduce us again to the colonies of a foreign power, they would not repel them, he could not join them in opinion. And though he should vote for the resolution as moved to be amended, he should feel himself at perfect liberty to defend his country in case of attack. He wondered the gentleman from Virginia should object to vote for the resolution, because it was general, as it included the French Republic as well as all other nations. Mr. RUTLEDGE trusted the sentiments which the gentleman from New York had expressed would govern the committee, and that all were ready to say, that though we value the blessings of peace, yet we are ready to resist insult and injury from whatever quarter they come. He hoped this would be the conduct of this country; and notwithstanding much had been heard about British parties and French parties, that all would unite in this determination. This being his opinion, he should vote for the amendment; and he hoped gentlemen would be satisfied with this declaration, and that no more would be heard of a party in the House in favor of war. Though he meant to vote for the resolution, he thought it unnecessary; but in these days of jealousy and suspicion, if he were not to vote for it, he should expect to be told he was in favor of war. Gentlemen asked whether war is not approaching? And whether the Executive is not hastening it? To the latter question he would answer in the negative; with respect to the other, he could not answer, as it depended on France, and so versatile and uncertain is every thing in that country, that no dependence can be had upon it. Mr. R. said, at the last session, when we had no intercourse with France, he thought it necessary we should have it: that intercourse had proved ineffectual; and though he sincerely wished for peace, yet he saw something in the conduct of France which almost precluded hope. The gentleman from Virginia had said, that this country had frequently been stated as in a degraded state. He did not recollect to have made the declaration, but this was his opinion. When our national rights had been violated; when our commerce had been depredated; when the vessels of belligerent powers, which had sought an asylum in our waters, had been plundered and burnt, he thought it necessary to go into measures of defence. He thought our frigates ought not to have remained at the wharves; that our extensive sea-coast on which is much wealth, should not be unprotected: he thought our seaports, the principal depots of our revenue, ought to have been fortified. He joined his friends in their attempts to have carried these measures, and, when they failed, he could not help thinking his country was in a degraded state and that she had lost the spirit which animated her in the year 1775. He hoped, however, that now, when France had gone to the lengths which she has gone to, that there would have been only one sentiment as to the propriety of the measures formerly proposed. But though he thought the nation in a degraded state, he was not in favor of war. He believed the citizens of this country were not for it. He believed the Government was averse to war; and that no part of it was more so than the Executive. War would be a loss to this country; and to no individual more than the Executive. He is no warrior, and, consequently, war has no laurels in store for him. The gentleman from Virginia has spoken of war as having something dazzling in perspective; something which flattered pride and ambition. But did the gentleman suppose that a war with France could be flattering to pride or ambition? It could not; it would be a war of prudence; we must shut ourselves up, and act on the defensive, and say, "when reason returns, when an ebb shall take place in the affairs of France, when her flow of victories shall be over, she will do us justice." In the mean time, we must defend ourselves. Mr. R. repeated, that he did not believe any man in that House could wish for war; when he looked around him and saw gentlemen whose wounds are yet sore from former service; when he saw them voting for measures of defence, he could not believe, nor could any believe, that they wished to plunge the country in war. It would sooner be believed that gentlemen who made the charges were mistaken. Mr. SEWALL was opposed to the proposition as it now stood, and hoped it would be amended. What effect it would then have, he left those to judge who introduced it. Mr. S. said, he and those who, on all questions of defence, had voted with him, had been endeavoring for some time to go into some measures of that kind, and to determine whether these measures should be confined to our own limits or be extended to the ocean. These measures ought now to be decided upon, as this is a moment in which our commerce is depredated upon in a most unprecedented manner. We are now, said he, called upon to consider the hazards of our situation. [Mr. S. then quoted a part of the PRESIDENT'S Message, as to the situation of our affairs in France, and as to the decree which was proposed respecting the taking of English goods on board of neutral vessels, and the carrying of which was declared to make neutral vessels good prizes.] This last regulation, Mr. S. said, was a direct violation of the law of nations, and amounted to a declaration of war on the part of France against this country. But, instead of making any defence, gentlemen call upon the committee to declare we are not disposed to resort to war against the French Republic; so that, after we have been injured and abused, and denied the common rights of humanity, we are not to complain, but make a declaration that we will not go to war. Was then, he asked, a question of war a card of politeness? Did a nation ever make a declaration that it was not at war? It could not say so, except it were in so degraded a state that it had no rights capable of injury. To say we are not at war was to say no more than it is light when the sun shines; but to call upon the committee to say so at this time, was to degrade the nation from its independence, and below its character. The present state of things, Mr. S. said, ought to be considered as a state of war, not declared by us, but against us, by the French Republic; and if we want spirit to defend ourselves, let us not say so. We may refrain from acting, but let us not say we receive injuries with thankfulness. But this proposition goes still further. In a moment of public danger, it goes to divide and separate this House from the PRESIDENT OF THE UNITED STATES. The gentleman from Virginia had well explained this resolution, when he said, it was intended to interrupt the views of the PRESIDENT OF THE UNITED STATES. That gentleman considered the Message of the PRESIDENT as a declaration of war, and this resolution was to be in contradiction to it. If this was the sense in which it was to be understood, it was false in point of fact; for the PRESIDENT had neither declared war nor called upon Congress to declare war; no such sentiment could be found in the Message. To agree to the proposition as it stands, would be to give countenance to the assertion of the French Government, that we are a people divided from our Government; but, taking it with the amendment, he looked upon it as a harmless thing. Mr. S. concluded, by saying, that he considered the conduct of France in the light of war. How far we would resent it, was the question; whether offensively or defensively. He was in favor of defensive measures, as we are not equal to offensive measures, (he wished to God we were.) It was our weakness, and the division which had appeared in our councils, that had invited these attacks. He trusted they should now unite and repel them. Mr. GALLATIN said, before the speech of the gentleman who had just sat down, he could not discover what was the meaning of the amendment, to strike out the words "against the French Republic," as, when the House were in a Committee of the Whole on the state of the Union for considering the late Message of the PRESIDENT, the resolution was perfectly consonant. Besides, we have no danger to apprehend from any other power, since our dispute is settled with Spain. The intention of the amendment was evidently to render the resolution as unmeaning as possible. Every gentleman who had spoken on this subject, had agreed that war is not a desirable object for the United States. He gave them credit for the assertion. But this was not the question; but whether we are prepared to resort to war under existing circumstances. It is a question of fact. Mr. G. took notice of the different modes which had been attempted to defeat the resolution; but, though the present amendment were agreed to, he should still vote in favor of the resolution; for it would be effectual, in some degree, as it could only apply to the French nation, though it was not so expressed. Mr. G. believed the United States had arrived at a crisis at which a stand ought to be made, in which it was necessary for Congress to say whether they will resort to war or preserve peace. He was led to this conclusion from a review of the conduct of France, and of the late Message of the PRESIDENT. In respect to France, we know, that some time ago, she declared our treaty with her to be at an end; though not in words, the result was to deprive us of the advantages derived from that treaty. In the next place, she dismissed our Minister Plenipotentiary. Under these circumstances, the PRESIDENT called the extraordinary session of Congress, and when met together, after having related the reasons which induced this call, he concluded with saying, "that it was his sincere desire to preserve peace and friendship with all nations, and believing that neither the honor nor the interest of the United States absolutely forbade the repetition of advances for securing these desirable objects, he should not fail to promote and accelerate an accommodation," &c. The PRESIDENT accordingly sent Envoys to France, and the result of the embassy was given to Congress in the last Message, which was now under consideration, in which he says, "the object of the mission cannot be accomplished on terms compatible with the safety, honor, or the essential interests of the nation." The people of the United States are therefore informed, that negotiations are at an end, and that we cannot obtain redress for wrongs, but may expect a continuation of captures, in consequence of the decree which it was supposed was passed, for seizing all neutral vessels with British property, manufactures, or produce, on board. Mr. G. said, he differed in opinion from the gentleman last up, that this was a declaration of war. He allowed it would be justifiable ground of war for this country, and that, on this account, it was necessary to agree to, or reject the present proposition, in order to determine the ground intended to be taken. For, though there may be justifiable cause for war, if it is not our interest to go to war, the resolution will be agreed to. There was another reason why this resolution ought to be now decided, which arose from the conduct of our Executive. He has declared that a change of circumstances has taken place which has occasioned him to withdraw his order forbidding merchant vessels to arm; which amounts to this, that he now permits vessels of the United States to use means of defence against any attack which may be made upon them. Mr. G. thought it necessary, therefore, to declare, whether we were to pursue measures of war or peace. Before measures are taken which will lead to war, the House ought to decide whether it is their intention at present to go to war. The gentleman from New York had spoken of the difference between offensive and defensive war. This related to the motives, more than to the manner, of carrying on war; because when war is once entered into, though it may be at first defensive, it cannot remain so. It would be ridiculous, for instance, to say, that our frigates should prevent our vessels from being taken; but that they should not take French privateers. But it was said, if the resolution was agreed to, it would confirm the opinion which had been held that Congress and the Executive were divided in opinion. The gentleman from Massachusetts (Mr. SEWALL) told the House that the question was war or peace; that the conduct of France was a declaration of war, yet as the PRESIDENT had not called upon Congress to go to war, they ought not to declare that it is not expedient to resort to war. But if it be assumed as a principle, which that gentleman asserts, that the conduct of the French is a declaration of war, and the PRESIDENT has told us we are in war, the resolution could not be improper. Or if his other principle be assumed, that the information of the PRESIDENT does not amount to war, then an agreement to the resolution would show that Congress concurred with him in opinion, that it is not proper at present to resort to war. So that in both cases, the resolution is proper. Mr. G. said he was precluded by the amendment from going into the merits of the resolution. His arguments went to show the propriety of agreeing to it in one way or other. Nor did he mean to take any notice of what had been said about a division of opinion in our councils having invited the insults and injuries which France had committed against this country. If he were to do this, he must have recourse to recrimination, which he did not wish. He wished rather to take a serious view of our present situation, and either meet it by war, or by measures which shall avoid war. On both sides are difficulties; but the difficulties and inconveniences of both ought to be weighed, and the least taken; and, having determined, measures ought to be pursued accordingly. He did not wish to adopt the resolution as proposed to be amended, and then go on and act directly contrary to it. He thought it best to meet the resolution at once, and say whether we are determined on war or peace. If we go to war, we must expect to meet all the expense and evils of such a state; and if we remain at peace, we must, in a certain degree, _submit_. He meant to say, that we must submit to have a number of our vessels taken. But whether we shall have more taken in adopting one course than the other, he left to gentlemen to determine. He thought the submission he had mentioned, very different from the submission which had been spoken of by the gentleman from South Carolina, and others. Mr. G. concluded, by observing, that the conduct of France must tend to destroy that influence which gentlemen had so often complained of as existing in this country. Indeed, he was convinced that at the commencement of her revolution there was a great enthusiasm amongst our citizens in favor of her cause, which naturally arose from their having been engaged in a similar contest; but he believed these feelings had been greatly diminished by her late conduct towards this country. He thought, therefore, that whether we engaged in war, or remained in a state of peace, much need not be apprehended from the influence of France in our councils. The business had come to a mere matter of calculation, as to what course will be best to be taken for the interest and happiness of the country. If he could separate defensive from offensive war at sea, he should be in favor of it; but he could not make the distinction, and therefore he should be in favor of pursuing measures of peace. Several persons rose, but, being about three o'clock, a motion was made for the committee to rise, which was negatived--46 to 44. Mr. DANA did not conceive that the construction of language given by the gentleman from Pennsylvania, was to be taken as true, without examination. He trusted not. The gentleman stated the question to be peace or war; he could not conceive it to be such. It was unfortunate that, in this important crisis, the House should be engaged, like a set of rhetoricians, in disputing the meaning of words. Indeed, the decision on the present motion, he thought wholly unimportant. The gentleman last up had said there was no distinction between offensive and defensive war, and that he was, therefore, opposed to either. Mr. D. thought the distinction clear; offensive war, is when an attack is made upon another; and defensive, when a nation has recourse to war, merely for self-defence. But there was another state of things which could not have the name of war, which was to have recourse to measures of defence; to be prepared in cases of attack. It was clear, by the law of nations, that to prepare for defence, was not to commit hostility. To say that to take measure of defence is hostility, was a new definition, and it was the mighty discovery of the gentleman from Pennsylvania. Did gentlemen mean that if we should make use of force against lawless violence, it is war? If not, what did all that had been said amount to? He thought the proposition perfectly nugatory. But the gentleman said, that his friend from Massachusetts had said, that France had already declared war against us, and that, therefore, we must resort to war. For his part, he did not know what gentlemen meant by resorting to war. If they had adopted terms which had any legal meaning, he could have understood them, but the present might mean every thing, or nothing. If it meant any thing, it meant taking active measures against France in the first instance. He was not only ready to say he would not consent to do this with respect to France, but with respect to every other nation. The gentleman from Pennsylvania, and two gentlemen from Virginia, had said that the Message of the PRESIDENT amounted to a declaration that we were now in war. This idea he thought was stated very incorrectly. They did not seem to have understood the meaning of the language of the PRESIDENT. The state of things which existed at the time orders were issued to prevent the arming of merchant vessels was essentially different from the present; then there was an evident disposition in the owners of vessels to cruise against a foreign belligerent nation, and the order was issued to prevent attack and plunder; but the desire to arm at present is for the purpose of defence merely, and not to cruise or plunder. There is a law forbidding vessels to arm for the purpose of cruising; but none forbidding merchants to arm in their own defence. This was the fair construction, he believed, of the meaning of the PRESIDENT. Mr. OTIS observed, that the opposers of this amendment could assign no better reason for declaring a desire to keep peace with the French Republic, to the exclusion of other nations, than their own construction of the PRESIDENT'S last Message, which they considered as directed against that Republic only; but the House having resolved itself into a Committee of the Whole on the state of the Union, the resolution on the table had no greater relation to that Message than to any former Speech or Message, or to the affairs of the Union at large. If it was intended as an answer to the Message, it should be moved in that form; but unless it was in a particular manner connected with it, the public could not connect it more naturally with this Message, than the Speech delivered at the opening of the session. The House had been heretofore informed, that France was not the only country with which a rupture was to be apprehended. Spain might be considered, until lately, as having actually invaded our territory; and though the presumption at present was, that the causes of contention with that country were removed, yet they were not officially informed of that fact, and without such information it was not less proper to express their desire of maintaining peace with Spain than with other countries. Again, gentlemen had often intimated that a war with France would involve us in a war with the nations in alliance with her. It was therefore inexpedient to show a contempt or indifference for them, by leaving them out of our pacific manifesto. He considered the Message in a different view from many gentlemen. But admitting, for the sake of argument, that the PRESIDENT had declared an opinion upon the facts stated by him, that war was inevitable; gentlemen must consider the fact to be true; if they doubted it, they ought to demand information. How would this resolution then stand? In reply to assurances that negotiation had failed; that our Commissioners were treated with neglect and contempt; that letters of marque and reprisal were issued against our vessels; and that the most hostile appearances were discernible on the part of France; it was proposed to declare, that with them, and them only, it was inexpedient to resort to war. Such a proposal would hardly be found in the annals of the most humble and degraded nation. He disapproved of the resolution, though he should vote for the amendment, and would not, on the present occasion, follow gentlemen who had gone at large into the merits of the resolution. Upon the extent of the defensive measures proposed by gentlemen, his feelings inclined him to enlarge; but this discussion would be more pertinent upon some other question. He would merely hint, that actual invasion might not be the worst calamity to this country. He could conceive of a partial invasion of our territory that would be much less injurious, and attended with much less loss than the total ruin of our commerce. The call for the committee to rise being repeated, Mr. N. SMITH hoped gentlemen would be satisfied to take the question, which he thought very unimportant. The time consumed in discussing it was, however, important, as other concerns called for attention. He knew there were gentlemen who chose rather to address the people of the United States than to legislate. He thought it better to legislate, than to preach to the people. He looked upon the present resolution as a text from which it was intended to alarm the people with respect to war, and he wished not to indulge gentlemen in their design. He wished the question to be taken for another reason. It was suggested by the gentleman from Virginia, that the Message of the PRESIDENT was considered by the people as a declaration of war, and that reports were in circulation, that a treaty, offensive and defensive, was concluded with Great Britain. After this, he would call the attention of the committee to the resolution, which was, in effect, to say, we must interfere, or war will be brought upon the country. Did not this go to sanction a report which was as false and malignant as even jacobinism could invent? It did; and he hoped, they would not so far sanction the report, as to let the motion lie before them undecided. Mr. DAYTON hoped the committee would rise. The gentleman last up began with saying the proposition was of no importance; but, before he sat down, showed that he thought differently. Mr. D. thought it was of importance that the committee should come to a right decision upon it, and say whether it ought to be agreed to in general terms, or rejected. Mr. N. SMITH explained. Mr. J. WILLIAMS thought the question trifling, and hoped a decision would be had upon it. Mr. GILES said, the question was a question of peace or war, and yet gentlemen call it trifling. He did not mean to alarm the people of the United States, but he wished them to understand their situation. He acknowledged he was himself much alarmed. Gentlemen were willing to engage in defensive, but not in offensive war; but when war was once begun it would not be in the power of the United States to keep it within the character of defensive war. Indeed the gentleman from Massachusetts, when he spoke of defensive war, confessed our inability for offensive war, and uttered a prayer to the Supreme Being that we were able to engage offensively; and where, he asked, with such sentiments, is the difference between offensive and defensive war? He could see none; he deprecated war of every kind. Mr. J. WILLIAMS hoped the question would be taken. As he before stated, he thought it trifling, and the debate upon it only calculated to alarm the people, which seemed to be the object of gentlemen. If the question was not taken before they adjourned, much debate would be had, and much time spent to very little purpose. He thought it very extraordinary, as no one was found to bring forward a resolution to declare war, that a gentleman would introduce a resolution of its being inexpedient so to do. He was persuaded that this negative mode of proceeding was calculated to draw on a debate, to set the people against the Executive. Time, he said, was precious; they had sat near five months and done but little, much remained to be done, and as all had declared their aversion to a war, the people should be undeceived. He had himself seen gentlemen write upon the late Message of the PRESIDENT, for the purpose of sending to their constituents, "_A war message against France_." Mr. MACON wished the gentleman would name who had thus written. A call of order took place: and a motion was made for the committee to rise, and carried. WEDNESDAY, March 28. _Relations with France._ The House again resolved itself into a Committee of the Whole on the state of the Union, when the amendment to the first of Mr. SPRIGG'S propositions, as to the inexpediency, under existing circumstances, of resorting to war against the French Republic, being under consideration; which amendment is to strike out the words "French Republic," Mr. PINCKNEY rose and said, he was in favor of the amendment, because it tended to make what he thought an improper proposition, in some degree, nugatory; for he believed to agree to the resolution without it, would be prejudicial to the interest and welfare of the country, as he did not think the period had arrived which called for a decision on measures of war or peace. If such a declaration had been necessary, he should have expected it to come from gentlemen in favor of a war, declaring, that it is expedient to go to war, as it was a very uncommon thing to declare we will not do a thing. His strongest reason against coming to this resolution, however, was, that at this period the House had not sufficient information concerning the whole of this business, to enable them to form a correct judgment upon it. The PRESIDENT told the House, indeed, that he had little hope of a favorable termination of the negotiation, but they knew nothing of the train of the negotiation, or of the circumstances attending it. They knew that our Commissioners had not been received; but they had not sufficient information as to the manner in which they had been treated, to enable them to come to the decision proposed. The gentleman who proposed the resolution, said it was time to come forward and declare whether we will have peace or war. Would to God, said Mr. P., it was in our power, by any such declaration, to avert war, or maintain peace; but he believed this did not depend upon any declaration of ours. In questions of war there were always two parties, one of whom was generally the aggressor, and the other generally passive. In the present case, he considered this country as the passive party, and, therefore, any declaration on our part would have little effect. We know that individuals or nations induced to pursue measures from interest or passion, are not easily diverted from their purpose. If the French are actuated by either of these motives, no declaration of ours will prevent the calamity. Such a proposition would rather accelerate than prevent the evil. If our declarations could have availed, they have not been wanting. From the first period of a misunderstanding between the two countries, declarations have been made deprecating war in general terms, but particularly with that nation. A Minister Plenipotentiary had been sent to explain the views of this Government, and to remove any jealousies which might exist, and to make such specific propositions as were thought necessary; but our Minister was rejected without a hearing. The next measure was, to send special Commissioners, in order to settle our differences and avert the calamity of war. We have, therefore, made sufficient declarations of our pacific intentions. Indeed, he thought too much had been rested on these declarations, as nothing had been done for our defence. When we looked at our seaports, and saw their defenceless condition, he thought it evident sufficient attention had not been paid to them, knowing that war might, at least, be a possible event. This resolution differed exceedingly from any thing which took place when we had a misunderstanding with England in 1794. At that time, when England issued her extraordinary Order of the 4th of November, and our commerce was depredated upon, measures were spoken of for countervailing the injuries which our citizens experienced, but no proposition like the present was produced. We are now aggrieved and injured in a most extraordinary manner, but we say we will not go to war. On a former occasion he had heard of a variety of restrictive regulations, proposed with a view of restraining the injuries committed upon us, and to bring Great Britain to reason; and he did expect something similar would have been proposed on the present occasion, but nothing of the kind had appeared. It was true we had not so great hold of the French nation as of the British, in this respect, but we had some; and he believed measures might be taken which would induce the nation to hear reason. But, instead of this, it was proposed that we should say, we have been injured and aggrieved; but we will not oppose you, we will not go to war with you. The gentleman from Pennsylvania (Mr. GALLATIN) had gone further than perhaps the resolution on the table would warrant. He says, the adoption of this resolution will go to prevent the taking of any measures which may, in their tendency, lead to war. If gentlemen meant by this, that it was to prevent any measures being taken for the protection of our commerce, the adoption of the resolution would not only declare that we will not go to war, but that we will not take any measures for the defence of our property. It appeared to him that that gentleman had himself given the best reasons for modifying this resolution, so as to make it as little mischievous as possible. For he had told the committee that France had set at naught her treaty with us; but though they have done this, said Mr. P., they have endeavored to justify their depredations, by insisting that, according to that treaty, it was necessary for vessels to carry a _rôle d'equipage_. Mr. P. added, there was another Order of the French Government which was so contrary to right, so cruel in its consequences, so degrading to this country, and so inhuman in its tendency, that he could not avoid noticing it. It was the decree which declares that every American citizen found on board the privateer of an enemy, shall be considered and treated as a pirate. They pretended to found this Order on our treaty with Great Britain; but he wished gentlemen who thought it justifiable, to turn to that treaty, and see whether there was any thing there which countenanced so violent a measure. But this is not all, the gentleman from Pennsylvania allowed that a decree had lately been passed which violates all the laws of neutral nations, viz; that if the property, manufactures, or produce, of an enemy be found on board a neutral vessel, it shall be good prize. Our Ministers, also, who were commissioned to conciliate, and even to make concessions, though they had been in Paris three months, cap in hand, had not been able to get a hearing. Under all these grievances, what, said he, are we called upon to do? He should not have been surprised if some one, fired with the injuries we have received, had brought forward a proposition for war. But, instead of this, smarting as we are under injuries, our commerce bleeding at every pore, and our country deeply humiliated, we are called upon to say: You have done every thing to injure, insult, and degrade us, but we have deserved it: we will do nothing to oppose you. Though God and nature have given us power, we will not go to war with you, neither on the present occasion, nor on any other, whatever injury you may commit upon us. However humiliating our conduct might be, he repeated, it would have no effect upon that nation. He did not wish to animadvert upon the conduct of any country; but there was one instance of the treatment which the French Republic has exhibited to an independent State, which he could not help noticing. It was in respect to Venice, which would show, that no humiliation, no concession, would avert the calamity which threatens us, if the rulers of the country are determined upon war. If he was not misinformed, the circumstances of the case were as follows: The Venetians were at peace, and endeavoring to pursue a line of neutrality. A tumult arose in one of their towns, and the populace did, in a barbarous and most unjustifiable manner, massacre a number of French soldiers. This was an injury which called for and deserved atonement. A retaliation took place fully commensurate with the crime. The Venetians made every concession in their power. But the French commander was not satisfied; he took vengeance upon them by overturning their Government--a Government which had stood the test of five hundred years. He should have supposed that the French would now have been satisfied; but the matter did not stop here. The Government being overturned, the people were promised a free Government, and an amelioration of their condition. They were proceeding in the establishment of a Government; but, when the treaty came to be made between the French Republic and the Emperor, he supposed it was thought to be for the interest of that Republic to sacrifice a part of this territory, and to give it up to the Emperor, to take a part to themselves, and to annex another part to the Cisalpine Republic. This was done; and he believed the very part which had committed the offence against the French Government, had been rewarded by being joined to a free Government. This division of the Venetian territory was not the work of a young officer, elated by victory and conquest, or enraged by the treatment which his soldiers had received. The French Directory had come forward, and, by their decree, had applauded the whole conduct of their General in the most unqualified terms, particularly as to Venice and Genoa. He would not take up the time of the committee by citing the conduct of the French towards the latter Republic. The case of Venice was sufficient to show how little was to be expected from a humiliating conduct. Mr. GILES thought the gentleman who had just sat down had been less correct in his statements than he usually was. He would allude particularly to one instance. That gentleman says, whatever aggressions and insults may be heaped upon us, the supporters of the resolution will not go to war. The proposition held a directly contrary language. It says: "That, under present circumstances, the United States deem it advisable to remain in a state of peace." [Mr. PINCKNEY said the reason why he had made this remark was, that yesterday the gentleman himself had said, he should not be for going to war, unless the country was invaded. He, therefore, connected the resolution and this declaration together.] Mr. G. said, he still repeated the same thing; that we ought not to resort to war beyond the limits of the United States. But he drew a contrary inference from this, from that which that gentleman had drawn, because he had accompanied the declaration with another, that he was perfectly ready to prepare to that extent for defence. He would explain the grounds of this opinion. Within our own limits we are capable of making something like exertion, and there, he believed, exertions might be made to advantage. Indeed, one of the propositions, which is connected with the present, goes to this purpose, and therefore with what propriety could the gentleman say, he and those who were of his opinion were not for preparing for defence till the enemy is at the door? Nor could he see any thing like humiliation in this. Nay, he was convinced, if we carried our preparations for defence beyond our own limits, instead of gaining glory or honor, we shall meet with nothing but disgrace, as we are not prepared to make a defence at sea. Indeed, the moment we get beyond our jurisdictional line, defence will become offence, because there will be no evidence by which it can be ascertained by whom the attack commenced. It would, therefore, be unwise to permit ourselves to be placed in this situation. If any object was to be effected by going out to sea, it must be the protection of our commerce with Great Britain; but it was known that the two acts of the British Parliament which took place in January last, if peace continues, may take that trade in a great measure from us. He did not think, therefore, that this was a sufficient object for which to incur so much risk. At present, said Mr. G. there is a pretty general opinion in the country (and he thought there was much ground for the opinion) that there is a disposition in a part of this House, and in part of the Government, for war; and he thought it was proper to come to a declaration upon the subject. This would not only have a good effect upon our own citizens, but it would convince European powers, that though we were preparing for defence, we were not preparing for war. Mr. G. said, he was not satisfied with the construction which the gentleman from Connecticut (Mr. DANA) had given to that part of the Message which speaks of our situation being changed. He did not believe the PRESIDENT had any reference to the dispositions of the people, but to the state of things generally. The apprehension of war had already begun to produce disagreeable effects in his part of the country. He had received information that produce had fallen in price, and that the sale was very dull. He was of opinion, therefore, that the proposed declaration, if agreed to, would appease the minds of the people. It was said it would have no good effect upon the Executive Directory. He did not know that it would. But it could have no bad effect; and it might have a good one, for he did not think that body quite so abandoned as some gentlemen thought them. The gentleman last up had spoken of the partition of Venice. He himself saw it with concern; but where was the difference in crime between the French Republic and the Emperor? Each took a part. But what was all this to the United States? Were they to go to war to avenge this partition? We heard nothing of this kind some years ago, when a partition of Poland took place. For his own part, he wished to leave the powers of Europe to themselves, and to draw ourselves within our own boundary, where we should be fully equal to our defence against any power on earth. Mr. HARPER.--When this resolution was first proposed, it appeared to him to be one of those nugatory measures which might either be agreed to or rejected, without producing any effect; and, until he saw the resistance which was given to the amendment, he remained of the same opinion; but now he found it was to say to the French nation, "you may commit against us injury after injury, and insult after insult, we never will resist you." If this were not the intention, why resist the amendment? Taking this to be the intention, he should bestow some observations upon it. Gentlemen preached about peace. They cry, "peace, peace," as if we, holding the scale of the world, had the power to preserve it. Do not gentlemen know that peace or war is not in our power? They do know it, and that all in our power is to resist, or submit. Was not the clamor which was heard about peace, in so many words, saying, you must submit, not only to what injuries you have received, but to what you may hereafter receive? Was not every advance, on our part, for an adjustment of differences, met with new injuries and new insults? It would not be denied. If peace was all that gentlemen wanted, they would take the resolution in general terms, as proposed to be amended; but their opposing it shows that they have no objection to hostility, if it be not against the French nation--he would not say whose servants they were desirous of being, but against those whom they dread they are afraid to lift up their finger. And this was the spirit of peace which they wished to preserve--a spirit which he deemed vile submission--a spirit which was afraid to complain, and which met every new insult without murmur. Mr. H. rejoiced that this amendment was made, because it had unmasked the intentions of the mover and supporters of the original proposition. They were now obliged to avow, it is not peace with all the world which we want, but peace with France--a servile and abject submission to one nation; a nation in behalf of whom they have heretofore been eager of war; for, notwithstanding all their cries at present for peace, peace, when there is no peace, they have on a former occasion been equally zealous for war. All their efforts were then used to involve this country in war, upon the side of the French Republic; but now, when measures of resistance are called for--not against France, but to prevent her from wounding her enemy through our sides--their cry is turned from war to peace. This he repeated, and, if they denied it, he would refer to written accounts of their discourses at that time, which would prove that they had sought war against England, and an alliance, offensive and defensive, with the French Republic. At that time, he and those who generally vote with him, desired peace; and it required all their skill and firmness to preserve it, and much obloquy was thrown upon them on account of their exertions. The ground which he and his friends then took was--let us first try negotiation; if that fail, we will then join you in the war. But these gentlemen were, at that time, all in favor of war measures in the first instance. Whence now this change of spirit? What has become of the spirit of 1794, when it was said to be disgraceful to negotiate, and that it would be base to surrender the independence of our country to a foreign power? He wished he could see the breasts of gentlemen now glow with the patriotism which then animated them; but, instead of this, what do we see? A spirit of the most abject kind; a spirit that would leave all our property unprotected beyond the limits of our territory, so that our commerce, from which is derived five-sixths of our revenue, is to be abandoned, lest, in defending it, we should give offence to the French Republic. The committee were now told it would be time enough to prepare for war when an invasion of our country was attempted. And why were they told this? Because such an event is not likely to take place. Gentlemen know that all the hostility which France wished to commit against this country may be done by destroying our commerce. But they are disposed to surrender this part of our rights, rather than resist; and what security had we that, if the country were invaded, these gentlemen would then resist? He apprehended that the same spirit which led them now to submit, would continue to actuate them. Last year gentlemen were opposed to doing any thing which should alter the state of things. If this negotiation, said they, fail, we will then join you in active measures. But now, when that time is come, they tell us we must still sink lower, and become more degraded. We are to be contented, not only to see our ships captured, our property destroyed, our sailors led in chains, our revenue annihilated, but we must see the army of the enemy attempt to land, before we will resist. Mr. H. said he would bring his proofs, to show that those gentlemen who are now so loud in their calls for peace, were heretofore the supporters of a war system. For this purpose, he adduced Mr. Monroe's view of the conduct of the Executive of the United States, which, he said, was a publication which had met with the most unbounded and enthusiastic applauses from all the party; and he read from it an extract of a letter from Mr. Monroe to our Secretary of State, dated Paris, September 10, 1796, pages 209 and 210 of the book, in which he states it to be his opinion, "that if a suitable attempt be made to engage the aid of the French Government in support of our claims upon England, it may be accomplished; and that to secure success, it will be necessary to take the posts and invade Canada." Would any man, said Mr. H., who shall read this passage, say that the system of these gentlemen is a peace system? And besides this proposition for taking the posts and invading Canada, the same gentleman proposes an advance to France of five millions of dollars. Yet these are the gentlemen who now are willing to say to France, "We will not fight you; we give you license to do us all the injury you please. You may fit out half a dozen frigates, which will be able to block up our ports; and we give you this notice that you may effect your purpose with little expense, and not prepare a large fleet for the purpose." The gentleman from Virginia, (Mr. GILES,) whose zeal for keeping this country in an absolutely defenceless state, has surpassed all the zeal he ever before displayed, except that which he had shown on a former occasion for bringing us into war, has told us that peace is the best thing we can have; and that it would be knight-errantry to attempt to defend our property at sea. After our Ministers have been sent off, and a decree passed which must destroy our commerce, and which had been already allowed to be just cause of war, this was the language of that gentleman on the present occasion. To show this gentleman's consistency, and because his language was at that time so spirited, so American, and carried with it so much force and energy, he could not forbear reading an extract from his speech on the 28th of March, 1794, upon Mr. DAYTON'S motion to sequestrate British debts. The question was not then whether we should arm for our defence, but whether we should make an attempt at negotiation. The arguments of the gentleman were, it is true, somewhat misplaced, though they were nevertheless patriotic and admirable; and he could not account for the strange contrast of his present sentiments on any other ground than that he believed the true interest of this country was only to be effected by a treaty of alliance with France and war with her enemy. Gentlemen who were on a former occasion in favor of spirited measures in defence of our rights, and were on this occasion the same, are consistent; though their arguments might not altogether be properly timed, yet they were radically right. Mr. H. said, he would bring another example to the view of the committee. He meant that of Switzerland. Attempt after attempt had been made by France on the independence of that country. After going a variety of lengths, they effected their purpose of driving from thence that unfortunate class of men, the emigrants, who had been persecuted by those who had usurped all authority in France, and who sought the rights of hospitality amongst them. New aggressions were made; they took possession of a part of the Swiss territory, and displaced their magistrates. Seeing that every submission invited fresh insult, they united, hand in hand, took up arms, and reinstated the magistrates who had been displaced, and resolved to live free or die. What was the consequence of this spirited conduct? The French withdrew from their territory, disavowed the measures of their General, and declared that they desired nothing more than to leave the Swiss in full possession of their rights. Let us, said Mr. H., take warning by this energetic example of the Swiss. Let us now begin to resist. Let us declare that we wish to preserve peace with all the world; that we allow that peace is good, but that we believe independence is better; that peace is desirable, but not at any price--and then France will relinquish her aggressions. At this point the committee rose and had leave to sit again. THURSDAY, March 29. _Relations with France._ The House again resolved itself into a Committee of the Whole on the state of the Union, and the amendment to the first resolution moved by Mr. SPRIGG, as to the inexpediency, under existing circumstances, of resorting to war against the French Republic, which amendment is, to strike out the words "French Republic," being under consideration, Mr. GILES rose. It would be recollected, he said, that yesterday an attack had been made upon him, as indecent in its manner as it was in itself novel and unprecedented. He had been eight years in Congress, but he never before heard so direct and personal an attack. He was pleased, however, that it had been made, and only regretted that his state of health was such as, he feared, would not suffer him to go so fully into a refutation of the charges which had been brought against him as he could wish. He should, however, state such circumstances as would not only disprove the facts alleged against him, but also prove that the reverse of them was true. In doing which, he begged to be corrected if he should misstate any thing. The gentleman from South Carolina (Mr. HARPER) had said "that it had been the object of himself and his associates, but particularly of himself, since the year 1794, to go to war with Great Britain, if possible, and to enter into a treaty of alliance, offensive and defensive, with France." This charge he declared to be entirely void of truth. He knew that slanders of this kind had been circulated in an artful manner through the United States from that time to the present, but he never before heard the charge publicly made. Being made, he would refute it, though it had been the foundation of two long speeches of that gentleman; for, whenever slander assumes an erect front, it is dissipated by the first ray of truth which meets it. He trusted he should prove, by a reference to the debate which had already been quoted, and to others, that he had never been in favor of a war with Great Britain; and as to an alliance, offensive and defensive, with France, he never heard such a proposition in private conversation, and it will be allowed that no such proposition was ever publicly made. The inconsistency of his conduct had been spoken of. The gentleman from South Carolina said it was unaccountable to him how the author of such animated sentiments as were delivered by him, (Mr. G.,) in 1794, could now utter sentiments so grovelling and pitiful as those heard from him. He wished the gentleman had selected the passages to which he alluded, as he himself was unconscious of any difference between those which he then delivered and his present sentiments. From the year 1794 to the present period, he had uniformly declared it to be his opinion "that war is justifiable only in case of self-defence." If boldness of assertion and dogmatism of expression would have availed, the gentleman from South Carolina must have been victorious; but he would beg to turn the attention of the committee to facts. That gentleman had first introduced the book of Mr. Monroe, the sentiments of which, he said, certain gentlemen, by their approbation of it, had adopted as their own. Mr. G. said he had read the book, and had found a great deal to commend in it, and little to condemn. Human nature was liable to err. If the gentleman himself were to review his own political history, he doubted whether it would be found to be always consistent. There might have been errors in Mr. Monroe's Ministry, but he believed they would be found to be as few as ever attended a negotiation which was encompassed with so many difficulties. What, he asked, was the letter which the gentleman read from his book? It was a letter dated December 5, 1794. This was not a letter from Mr. Monroe to his associates, but to the Secretary of State; and, if any conspiracy was intended, General Washington and his Secretaries must have been the conspirators. He saw nothing more in this letter than a suggestion of what might be done if the Government thought proper. Mr. G. stated the situation of things at that time. In the autumn of 1794 the PRESIDENT laid before Congress a communication stating that nothing further could be done between this country and Great Britain by way of negotiation, and what remained to be done was left to Congress. There never was so threatening a state of affairs between Great Britain and this country, since the revolution, as at that period. At the time, therefore, when Mr. Monroe wrote the letter in question, he could not possibly know the state of affairs here, or whether they would come to an amicable settlement, and it was right in him, and it would have been criminal not to have done it, to state what it was likely might be done by France in our favor in case of extremities. He would only add one further remark, as he should have occasion to defend himself more than Mr. Monroe, which was, that he was at least as honorable a character as any of his calumniators; that while he was in France he effected much good, and that since he came away we had experienced much injury. If gentlemen would examine the state of things when he first went to France, what our situation was when he came away, and what it is now, he thought this would appear evident. The gentleman from South Carolina, doubtless, after examining all the remarks he could find of his, had brought forward a debate which took place in 1794. To follow the gentleman would be a disagreeable task; but as it would serve to elucidate a truth which it was necessary to unfold, he should undertake it, and show that, instead of these remarks being in favor of war, they were founded in the most zealous wish for peace, Mr. G. proceeded to read his remarks on Mr. DAYTON'S motion for a sequestration of British debts, which, as the mover would recollect, he said, was a mere arrestation of British debts, which was proposed as a preventive of war, by holding in our hands what was within our power, as a pledge for the good behavior of that country, in order to preserve peace. Mr. G. stated the situation of things to be different from that which Mr. HARPER had represented it to be, as the Legislature had no knowledge of any negotiation being set on foot with Great Britain at that time. This debate took place on the 28th of March, when they had been informed by the PRESIDENT that nothing further could be done by him, and the negotiation was not heard from until the 19th of April following. A part of the system proposed was an embargo, and another a suspension of intercourse with Great Britain. This bill passed this House, but was negatived in the Senate, by the casting vote of the VICE PRESIDENT who is now the PRESIDENT OF THE UNITED STATES; and if this bill had been carried into a law, the other regulation for arresting the British debts would evidently have been a proper measure. Mr. G. did not believe that we stood upon such unequivocal ground with respect to France as we formerly stood upon with respect to Great Britain. This had long been his opinion; and though we have heavy complaints to make against France, they were not without just complaints against us, arising principally from the operation of the British Treaty, that fatal instrument to the United States. Mr. G. read some of the articles of the treaty, and his former remarks thereon, and denied that there was any well-founded apprehension of war at the time it was under discussion. He also noticed the assertion which had frequently been made, of the French Directory receiving lessons from this country, which, he said, was too absurd to be believed. Though he thought France had just ground of complaint against this country, he did not mean to justify her conduct towards us. He thought she ought to have received our Ministers; and, if they had not agreed, to have taken such measures as they thought proper. But this is supposing our Ministers clothed with sufficient powers; if they were not, there would be some ground of justification for their conduct. The PRESIDENT OF THE UNITED STATES is in the possession of information which would satisfy the Congress and the people in this respect, but he has thought proper to withhold it, and therefore he alone is responsible. There was one circumstance, he said, very unaccountable in this business. The PRESIDENT informed the House that he had received certain papers, and says, "I have considered these papers; I have deliberated upon them; I have not sent them to you, but require you to act upon them; I call upon you to take energetic measures, and request you will provide sufficient revenue." The House has been thus obliged to take up the subject in the dark. Is this, said he, a desirable state for the Legislature to be placed in? Is it not rather a degraded state? He thought it was; and when party rage shall subside, and it shall be seen that the Executive is pursuing hostile measures, and keeping back all information from Congress, this conduct would be deemed extraordinary. He was far from saying the Executive had not done what was proper. He could not say so, because he had seen no evidence upon which to form a judgment; but it left a strong impression on his mind that something was not correct, which was the reason the expected papers were not sent. He also again referred to what the PRESIDENT says in his late Message with respect to the change of circumstances, which he still thinks he meant to apply to a change from neutrality in the country to something like war. And in these circumstances, said he, are the people of the United States to be led on from step to step, until they are irrevocably involved in war? And are the people to be told that this is a trifling question? When all the country is in commotion, and when the people are preparing their petitions for peace, (which he thought very proper,) he was not willing to proceed until the present question was decided. He would suggest another idea. He had heard a variety of observations from different quarters, that at a period not very far distant from the present, a more intimate connection between this country and Great Britain than at present exists, is likely to take place. And yet gentlemen are perpetually crying, What! give up your independence! Do you prefer peace to independence? He would answer, No; for independence he should be ready at all times to make war. But are we, said he, called upon to fight for speculative independence, and, at the same time, willing to commit our real independence to the mercy of another nation? Where, he asked, is the difference between depending upon the French or British nation? Except, indeed, (as he believed was the speculative opinion of some gentlemen,) there was an intention of assimilating the British and American Governments. Gentlemen talked of newspapers. He would say a word on that subject. There are two papers, said he, printed in this city, which not only breathe defensive, but offensive war of the worst kind. One of these papers, he believed, was particularly countenanced by the Government; the other was printed by an infamous scoundrel, a British subject--a paper which he was sorry to find too much countenanced. This paper not only breathes war, but exterminating war. And this paper issued from a British press, spreads its baneful sentiments throughout the country. He proclaimed this fact; and he should think himself a traitor to his country, not to proclaim it. Mr. G. would say a few words as to the effect which the late French decree would be likely to produce upon this country. The committee had been told, by the gentleman from South Carolina, that it would effectually destroy our revenue. He believed he was mistaken in this. To France and to those nations who may be supposed to be under her influence, we last year exported to the amount of $36,000,000, and to Great Britain $8,000,000; two-thirds of which are re-exported to the countries above mentioned. Against whom, then, are we to arm? Against those who receive $36,000,000, for the protection of the $8,000,000, two-thirds of which are re-exported. How, he asked, would this operate? Would the decree stop the importation of British goods? No, it might lessen them, but would not stop them, as the British would become, in some measure, their own carriers; and, as their vessels paid a higher duty in our ports than our own, it is probable our revenue would not be greatly lessened. It was possible, however, that there might be some abuse of the decree in carrying it into execution. He was as much opposed to the decree of the Executive Directory as any man, but not so much on account of any loss we shall sustain from it, as from its being an attack upon our neutral rights, which he preferred to money. The British Treaty had authorized two acts that took place in January last, which will transfer the carrying trade from American to British vessels; but those acts will not affect our vessels going to France, Spain, or Holland. He supposed, therefore, that our commerce would not be very materially injured by the French Decree. He did not know but it would even be upon a better footing than at present, as there would be more security for it. At any rate, no rash measures ought to be taken, until we see how the decree is to be executed. He trusted the gentleman from South Carolina was, by this time, pretty well satisfied as to the inaccuracy of his statement. Before gentlemen make charges of inconsistency against others, they should be sure that they themselves stand firm in that respect. That gentleman ought to have looked back upon his own conduct in 1792 and 1793. He had been informed that that gentleman was at that time a member of an affiliated society of Jacobins. [Mr. HARPER said it was not true.] He believed, however, all the gentlemen who knew him at that time would do him the credit to say, that he was one of the most eloquent declaimers of that day in favor of the rights of man. But his inconsistency had even appeared within these two days. When the present proposition was first laid on the table, he rejoiced that there was a prospect of all uniting in manifesting a disposition for peace; but the next day he used arguments which went to the destruction of the resolution. The gentleman from Massachusetts (Gen. SHEPARD) had made a remark which he must notice; it was, that he assumed to dictate to others what was proper to be done. Of this he was not justly chargeable. That gentleman told the committee he was a warrior; he venerated him as such--he was a warrior in a glorious cause; but whilst he venerated him as a soldier, he had to regret the political prejudices under which he labored, which could suffer him to attribute a motive of that kind to him. The gentleman from New York (Mr. BROOKS) had also told the committee he had also been in service in the Revolution. This he did not know before he heard it from the gentleman himself. But he had since been told he was engaged in the honorable and humane employment of clothier to the army. [Mr. BROOKS said, he had the honor of taking up arms in the defence of his country, which he carried until he was taken prisoner. He was a prisoner eighteen months, and when he was set at liberty he found his vacancy was not preserved for him. He then served his country in a different line, and he believed in a manner which entitled him to at least as much merit as he had assumed. He believed that providing the army with clothing was an essential part of the service; but, (said he, with great warmth,) if the gentleman doubts my being a soldier, I am here to answer him. A loud cry of order, and Mr. B. sat down.] Mr. G. said, he had received this information from one of the gentleman's friends. He made the inquiry, because he did not know what services he had performed; and he assured him the information which he had received had tended to raise, rather than to sink him in his estimation; but he was not alarmed at being told he was a soldier. It had been said of the resolution before the committee, that by stating we are not ready to resort to war against the French Republic, that it might be implied we are ready to go to war with some other nation. That this idea might be done away, if gentlemen will permit the words "against the French Republic" to remain. If the mover would give his consent, he should have no objection to add the words, "or any other nation." Mr. HARPER hoped, as he had been particularly alluded to by the gentleman who had just sat down, he should not be considered as trespassing on the patience of the committee in an unreasonable manner, if he made a few remarks in reply, though he did not mean to do it generally, as he perceived others had undertaken to do that, whom he was conscious were better able to do it than himself. He was called up merely by the gentleman's personal observations. In the first place, he was charged with great indecency in bringing forward and commenting upon the gentleman's own speech. He left it to the committee to determine with what propriety this complaint came from a person who has omitted no opportunity of attributing the worst of motives, not only to gentlemen in that House, but to others out of it; neither age, character, nor absence, have preserved gentlemen from his censure; from a person who has always indulged himself in the most violent philippics against the Executive of the United States, and all who concurred in his measures; from a person who, when gentlemen declare they are for peace, says he does not believe them; from a person who has continually charged all those with inconsistency who differed in opinion from him, not by examining their conduct, but by making insinuations against them as to their debts, or to the way in which they may have acquired money, or by following them to their youth, before they became members of this House? He thought the gentleman ought to attend to the old, but just adage, "He who lives in a glass house ought not to be the first to throw stones." If there could be a man more regardless than that gentleman of all the rules of decorum in debate, he had never heard him. As to the charge of inconsistency in his conduct, it had often been made in private, and as often contradicted; but as it is now brought into public view, he would say a few words on that point. It was said, that in 1791 and 1792, he was a member of a Jacobin society, and a warm declaimer in favor of the rights of man. What was said respecting his being a member of a Jacobin society, is one of those falsehoods of party, which, though known to be unfounded, is still reported. The fact, Mr. H. said, was this, which he never concealed: In the year 1791, there were instituted in Charleston a variety of clubs, (there were several before that time;) of many of these, being a young practitioner of the law, and desirous of extending his acquaintance; and procuring business, he was a member. Among these was a society called a Patriotic Society. It was composed of French and American citizens; and he and seven or eight other young practitioners became members, and attended one or two evenings; but, finding it composed of persons from whose society much improvement could not be expected, they never went afterwards; and so anti-jacobinic was their conduct considered, that they merited and received an expulsion from the society. As to being a declaimer in favor of the rights of man in 1791 and 1792, he owned he partook of that enthusiasm which at that time raged in America, because he was deceived. He then believed the French had been unjustifiably attacked, but he now found that they were the first assailants. He then believed that the treaties of Pilnitz[30] and Pavia, of which they had heard so much, were realities; but he now found them contemptible forgeries. With respect to other parts of the French Revolution, he then believed that the principal actors in it were virtuous patriots, but he had since discovered that they were a set of worthless scoundrels and mad-headed enthusiasts, who, in endeavoring to reduce their fallacious schemes to practice, have introduced more calamities into the world, than ages of good government will be able to cure. Mr. H. said, he never was a declaimer in favor of what gentlemen meant by the rights of man. He held them and their author in merited contempt. The pretended factitious rights of man to which gentlemen referred, were the rights of a few noisy demagogues over the rights of the people. Though he always believed this, he did not know it so well, in 1791 and 1792, as he knew it in 1794, and since. And, therefore, he was not a declaimer in favor of what the gentlemen mean by the rights of man, but he was a warm admirer of the French Revolution, when he thought the object was the establishment of the true rights of man; but, since he discovered that this was neither the object nor would it be the effect, instead of viewing that Revolution as a blessing to the world, which he once thought it, he now viewed it as the greatest curse that ever afflicted mankind; as a phial of wrath from Heaven, the bitterest that ever was poured out upon the earth. There was a certain species of the rights of man of which he had always been the defender, in favor of which his voice would always be heard. He had, in a well-known instance, advocated the rights of his fellow-citizens in the best manner he was able, and in a manner which had obtained for him their thanks and their remembrance. How he conducted that defence, was well known to some of his colleagues in that House. Mr. H. denied that he had been inconsistent with respect to the proposition before the committee. He then noticed what had fallen from Mr. GILES with respect to the decree of the French Directory not being so inimical to this country as it had been supposed to be. Mr. H. charged Mr. G. with being much mistaken in supposing that only the amount of eight millions of dollars was exported to Great Britain and her dominions, or that thirty-six millions of dollars were exported to France, and to countries connected with her. Out of the fifty-one millions exported from this country during last year, it appeared by the statement before them that eight millions five hundred thousand were sent to Great Britain; nine millions to the Hanse towns; to France and her dominions eleven millions. But, he asked if the gentleman from Virginia knew the reason why this amount to France appeared so large? If not, he would tell him. All the produce shipped for the British West Indies in 1797, was almost constantly cleared out for French ports, in order to avoid the effects of the plundering decrees of the French West Indies, and this was the reason why six or seven millions appeared under this head, which ought to appear under another. But the gentleman seemed to suppose that all which did not go to Great Britain went to France, and countries connected with her. At least twenty millions, out of fifty-one millions, went to countries over whom France had no power; and, when to these were added what was sent to Great Britain, and six or seven millions were deducted on the ground he had mentioned, the gentleman would find the balance was not very considerable. Mr. H. said he should not notice what the gentleman had chosen to say respecting the British Minister, except as to the improper manner in which he had called a confidential person a confidential agent of the Minister, and to say that he could not see any analogy between this case and that of the French Minister, who fitted out privateers and levied troops in our country without permission from the PRESIDENT OF THE UNITED STATES. The gentleman from Virginia had entered fully, not only into a justification of himself, but of his friends. How far he has acquitted himself and them from the weighty charges which he had exhibited, he was not the proper person to judge; he left the public to determine. He must, however, beg leave to correct him in one of his facts. He informed the committee that the letter of Mr. Monroe, which had been quoted, was written in December, 1794, whereas it was dated Paris, September 10, 1795, long after that Minister had been officially informed by our Minister in London, that the British Treaty was concluded and signed; yet this letter recommends the taking of the posts, the invasion of Canada, and the cutting up of the British commerce by privateers. He did not say that this letter was a proof of conspiracy, but of a system of policy which was very contrary to a peace system. But the gentleman says, he (Mr. G.) never proposed war against Great Britain. He knew it. The gentleman always spoke of peace, but pursued measures which led to war. He did not speak of war when he recommended sequestrations, confiscations, &c., because he loved peace. He did not talk of war; but, whilst he and his friends opposed measures of defence, they were in favor of every measure which led to war. While they were irritating a nation to war, they opposed the building of the frigates. He could not say what were the views of gentlemen in doing this, but he would say what appearance it had on his mind, when he was far removed from the seat of Government. He thought it seemed as if gentlemen believed it would be well to get to war, and then rely upon their favorite nation for support. Mr. BROOKS again complained of the insinuation which Mr. GILES had thrown out against him, which he said was not called for by any circumstances under consideration. Mr. GILES assured him he mentioned the fact alluded to, out of no disrespect to him. With respect to the date of Mr. Monroe's letter, he had been deceived by a leaf being folded down at the letter, the date of which he had mentioned. The gentleman had said that he had attributed improper motives to the PRESIDENT OF THE UNITED STATES. This he denied. He had said, he took measures which he did not approve, and he hoped a difference of opinion from any man would not be imputed to him as a crime. With respect to the explanation which the gentleman had given of his own conduct, he was glad to hear it. It was to obtain this explanation, that he mentioned the reports which he had heard. Mr. G. renewed the assertion, that he and his friends always had been willing to put the nation in a state of defence. As to the frigates, he gloried in his vote against them; but with respect to the use of them, the gentleman was mistaken. They were intended to be sent against the Algerines only. FRIDAY, March 30. _Relations with France._ Mr. ALLEN observed, that when the PRESIDENT OF THE UNITED STATES sent his first Message to the House, announcing the receipt of despatches from our Commissioners in Paris, he stated that it would take some time to decipher the despatches which he had received. Some days afterwards, on the 19th instant, he sent another Message informing the House, "that it was incumbent on him to declare that he saw no ground of expectation that the object of their mission could be accomplished on terms compatible with the safety, honor, or the essential interests of the nation." It had been observed, in the course of the debate in the Committee of the Whole on the state of the Union, and not in the most candid and proper manner, that the papers received from our Commissioners ought to have been laid before the House, and the PRESIDENT had been charged with withholding them. He supposed gentlemen would have been satisfied, and he was, with the information which the PRESIDENT had already communicated, that our Commissioners are not received, and that France refuses to hear us. But, though he was himself satisfied with the information he had at present, he believed there were many gentlemen in the House who wished for more, because there is a paper printed in this city, which is continually insinuating that there is something in these despatches which, if they were made known, would show that the conduct of the Executive has been improper; because he found that paper often speaking the language of gentlemen in this House, and which spoke it, he believed, on this occasion; and because, if this is not true, he wished the people to be undeceived; or if true, that he and those who thought with him, that no such blame existed, might be convinced of their error; he proposed the following resolution, to which he hoped there would be no objection: "_Resolved_, That the PRESIDENT OF THE UNITED STATES be requested to communicate to this House the despatches from the Envoys Extraordinary of the United States to the French Republic, mentioned in his Message of the 19th instant, _or such parts thereof as considerations of public safety and interest_, _in his opinion_, _may permit_." Mr. S. SMITH said, he should have no objection to the resolution, if the latter part of it was struck out. If the PRESIDENT thought it necessary that any part of the correspondence ought to be kept secret, he would, as is usual in such cases, inform the House that this was the case, and the galleries would accordingly be cleared. The communication would then probably be referred to a select committee, and such parts of it published as might appear proper. Mr. ALLEN observed, that there might be parts of this correspondence which it would not be proper to communicate to this House, even confidentially. If this was not the case, the PRESIDENT could still communicate such part of the correspondence in confidence as he may think proper. He wished to leave the PRESIDENT to act according to his discretion. Without some portion of this discretion being allowed him, the Government could not proceed. Mr. GILES said, no part of the correspondence ought to be kept from Congress. He was not himself satisfied as to the sincerity of the proceedings of the Executive of the United States towards France; he wished, therefore, not only to have the correspondence of our Ministers, but the instructions which were given to them. Mr. G. defended what he had yesterday said about the PRESIDENT and these papers, and hoped if the House called for the papers at all, they would call for all the papers, and the instructions upon which our Ministers acted. Mr. LIVINGSTON moved to amend the resolution by striking out all the words after the 19th instant, and insert after the words "this House," "the instructions to and." This was not a time, Mr. L. said, to stand upon trifling punctilios, which might be proper upon ordinary occasions. They were now called upon to say whether the country should be preserved in peace or go to war; yet the correspondence, which ought to convince the House of the propriety of acting in this or that way, is withheld. How could they say to their constituents, without this information, all has been done that could be done to preserve the country in peace, but war was inevitable? And if war is rushed into headlong, without due consideration, and consequently without ascertaining whether it is just or not, can it be expected that the wishes and aids of the people will be heartily engaged in such a war? They certainly would not. It would be no answer to say that our negotiation with a foreign power would by this means be exposed. The communication might be made with closed doors, and no one could suppose any thing would be exposed by the members of the Legislature which the good of the country requires to be kept secret. But gentlemen wish this House to repose the strictest confidence in one branch of the Government, at the same time that they say no confidence can be placed in the integrity of this House. [Mr. ALLEN exclaimed, who said it?] Mr. L. replied, that this was a fair inference from what had been said. The latter part of the resolution proposed to transfer a right to the PRESIDENT, which it ought itself to exercise, as to judging of what it was proper to publish in consideration of the public safety and interest. If this power was given to the PRESIDENT, he might withhold such parts of the papers as might prevent a correct judgment being formed upon them. He was not himself disposed to cede to the PRESIDENT the right which he was sent there to exercise for his constituents, of judging of so important a question, as a question of peace or war. He could not basely surrender this right. If the papers were called for at all, he hoped the whole would be called for, in order that the House might form that sound and temperate judgment for which the present crisis so loudly calls, and for which the people of the United States so anxiously look. Indeed, to pass the resolution unamended, would, in his opinion, be a shameful dereliction of their rights. Mr. BAYARD thought the propriety of this call upon the PRESIDENT was extremely doubtful, and, as it regarded the instructions given to our Ministers, wholly improper. With respect to the communication of the despatches, it was wholly a matter of Executive discretion to judge whether it would be proper to communicate them or not. He was one of those who had so much confidence in the Executive, as to trust to his candor, understanding, and integrity, to determine upon the propriety of what he should send to, or withhold from, this House. At a time when it is not known that our negotiation with France is closed, it would be extremely imprudent to have the instructions of our Ministers laid before this House; as what was sent here, notwithstanding any vote of secrecy, would not long be kept secret. It would soon be in Europe, and might do us essential injury, by disclosing our ultimatum to France, and by showing it also to the world. It was in vain, Mr. B. said, to suppose that one hundred men could keep a secret for any length of time, however important it might be. To elucidate that assertion, he referred to the divulging the secret of the British Treaty by a Senator. But the gentleman from Virginia (Mr. GILES) has no confidence in the Government of this country with respect to its negotiation with France; and in order to try the sincerity of the Executive, he wishes for the papers. Does the gentleman by this mean to give the lie to the Executive? Because in his Message he has told the House that he has given power to our Ministers to settle our disputes with the French Republic, and to "make all reasonable concessions." What more does the gentleman wish? Does he wish unreasonable concessions to be made? Surely he does not. Did any thing appear in the conduct of the French Directory to show that our Ministers were not possessed of ample powers? No; the Directory never knew any thing about their powers, at least so far as any official communications had been received on the subject. There could not, therefore, be any ground upon which the gentleman could rest his suspicions. He hoped, therefore, the amendment would be negatived. Two or three gentlemen were on the floor together. The SPEAKER said, the amendment to insert "the instructions to and," would come first under consideration. Mr. HARPER said, he did not mean at this time to enter into the merits of the present question. It was important, and presented itself in a new light to the House. The original motion he was ready to have voted for; he did not know whether he might not vote for this. But he wished time to consider of it. He therefore moved the further consideration of this question be postponed till Monday. Mr. ALLEN had no objection to the postponement, except the mover of the amendment would permit it to be amended by a modification of this sort: "Such parts of those communications as were communicated to the French Government." The question for postponement was put and carried--47 to 41. MONDAY, April 23. The SPEAKER attended to-day, and took the chair. _Stephen Cantrill._ On motion of Mr. W. C. CLAIBORNE, the House resolved itself into a Committee of the Whole on the report of the Secretary of War on the petition of Stephen Cantrill; and the report and papers accompanying it were read. The report was as follows: "The Secretary of War, to whom was referred the petition of Stephen Cantrill, respectfully reports: That the services for which the petitioner prays compensation to himself and a company which he commanded, were performed in the month of September, 1794, on an expedition conducted by Major James Orr, into the Lower Cherokee country, which issued in the destruction of two considerable Indian towns, the Running Water and Nickajack, the killing of a number of Indians, and the taking about twenty prisoners. "That the report of Major Orr to Governor Blount, dated at Knoxville, the 24th September, 1794, shows, that this expedition marched on the 7th of the same month, and was ordered by General Robertson, of Mero district. "That the orders of General Robertson for this purpose were afterwards communicated by himself to Gov. Blount, in a letter dated the 8th October, 1794, detailing his reasons for the order. "That letters from Governor Blount to the Secretary of War, dated the 22d of September and 2d of October, 1794, as well as the copy of an order, which he states to have been the last given by him to General Robertson, previous to this expedition, evince that the Governor did not sanction the measure. "That the Secretary of War, previous to Major Orr's expedition, in a letter to Governor Blount, dated the 26th July, 1794, strongly discouraged the idea of destroying the lower towns of the Cherokees, in the following words, viz: 'With respect to destroying the lower towns, however rigorous such a measure might be, or whatever good consequences might result from it, I am instructed specially by the President to say, that he does not conceive himself authorized to direct any such measure, more especially as the whole subject was before the last session of Congress, who did not think proper to authorize or direct offensive operations.' And that as soon as the destruction of the Running Water and Nickajack was communicated to him, the Secretary strongly disavowed any participation in the business, by his letter to Governor Blount, dated the 22d of December, 1794, in these words, viz: 'The destruction of the lower Cherokee towns stands upon its own footing; that it was not authorized is certain.' "That the President at all times, as well before as after this expedition, endeavored to confine the protection of the frontier of the South-western Territory to defensive operations, and to restrain from those which were offensive. "That, on the whole, it appears, the services for which compensation is prayed by the petition of Stephen Cantrill, were performed on an expedition, offensive, unauthorized, and in direct violation of the orders from the President to Governor Blount, by whom also they were not sanctioned. "The documents referred to, and others connected with the subject, are herewith presented, numbered from No. 1 to 9, inclusive. "All which is respectfully submitted to the House of Representatives. "JAMES McHENRY. "WAR OFFICE, _April, 1798_." The reading being finished, Mr. W. C. CLAIBORNE said, that, in his opinion, this claim was founded on the principles of justice; and he trusted every member who had attended to the reading of the documents, must accord with him in opinion, that the Nickajack expedition, undertaken by Major James Orr, in 1794, into the Lower Cherokee country, was authorized by General Robertson; and it remains now to be decided, whether soldiers shall not be entitled to pay until they have previously assured themselves of the legitimate authority of their commanding officer. At the time when this expedition was set on foot, a war raged between the United States and the Cherokee nation of Indians, the horrors of which bore hard upon the district of Mero; the very existence of the settlement was threatened; scarcely a day passed without some one or other of the inhabitants, or of their acquaintance, being murdered. Information was received that the Indians were embodied in order to carry the war into the settlement. What was the General to do? Was he to stand still without making any attempt to avert the danger? The safety of the people required him to act, and he struck the first blow, which was a defensive measure authorized by the usage of all nations. The citizens on this expedition obeyed the command of their officer; they did not think it necessary to inquire by what authority he acted; all for them to be assured of was, that he was an officer of the United States, and this they well knew, as this was not the first time they had served under him. Without a discipline of this kind no military operation could be carried on. General Robertson acted also under the authority of Governor Blount, who acted under the orders of the PRESIDENT OF THE UNITED STATES. Having then performed this duty--a duty, too, which put an end to a war which might have cost the United States a million of dollars--he trusted the petitioners would be compensated for their services. The amount, he believed, would not be more than about $4,000, as the party was out only twelve days. To effect this purpose, he proposed the following resolution for the adoption of the committee: "_Resolved_, That the proper officers be directed to settle the accounts of the militia who served on the expedition commanded by Major James Orr against the Cherokee Indians, in the year 1794." This resolution was agreed to without opposition. The committee rose, and after some few observations, it was agreed to in the House, and a committee appointed to report a bill accordingly. TUESDAY, April 24. Mr. W. C. C. CLAIBORNE, from the committee appointed, reported a bill directing the payment of a detachment of militia, for services performed in the year 1794, under Major James Orr, which was twice read and committed. _Provisional Army._ A bill from the Senate, authorizing the PRESIDENT OF THE UNITED STATES to raise a provisional army of 20,000 men, was read the first time; and upon motion made to read it a second time, Mr. NICHOLAS objected to the second reading of the bill, as he believed it possessed a principle which could not be assented to. He did not believe it was necessary to pass a bill of this sort under any possible modification. The highest act of Legislative power was, by it, proposed to be transferred to the Executive, viz: the power to raise an army, which he was to exercise at his pleasure. If an army was necessary, the Legislature ought to raise it; but he did not think it was necessary at present. Indeed, when discussing the bill for providing a naval armament, gentlemen had said that members had been willing to make preparations for defence on the land, where there was no danger, but were unwilling to do it at sea, where the greatest might be expected. He did not believe there could be any necessity for going into a measure of this kind at the present session. In case of predatory attack, the militia would be equal to repelling them. Mr. N. said he lived in a part of the country perhaps more defenceless than any other; but, so far as he or his constituents were concerned, he did not wish for a force of this kind. He was willing to confide for defence on the militia of the country. Mr. OTIS thought it very extraordinary that the gentleman from Virginia should endeavor to surprise a part of this House into a decision upon this bill in this stage of it. He hoped he would consent to its taking the usual course. The gentleman had gone into the merits of the bill; he could not follow him, because he had not heard it read; so far as he did hear it, he was of opinion that the gentleman had anticipated objections which did not lie against it. He seemed to suppose that this bill declared that a standing army should be raised. It does no such thing; it only declares that if existing circumstances shall make it necessary, then the PRESIDENT shall raise an army not exceeding a certain number of men. It may happen that the necessity may not exist; but the gentleman from Virginia must be able to fathom the intentions of France further than he could pretend to do, if he could say that no such necessity would exist. If what was said by the agents of that Government to our Envoys could be relied on, there was a direct threat to ravage our coasts. He hoped, however, no invasion would take place; but, when he said this, he calculated upon the French acting as reasonable beings, but perhaps he calculated delusively. Indeed, they are now threatening the invasion of a country, where one may suppose they would have as little chance of succeeding as in this country; and was the idea, then, to be so much scoffed at, as not to suffer a bill, intending to provide against it, to be read a second time? If the arms of our citizens were to be tied up, and our militia were many of them without arms, with what should we oppose such an attempt, if it were made? What, said he, is to prevent Victor Hugues sending over two or three frigates? It had been said that he expected open war, and that he was ready for it. In short, he thought it would be the most disgraceful conduct that ever was attempted in that House, if the bill should be rejected without a second reading. It would be in vain to talk of unanimity, if a bill from the Senate was to be treated in this way. If the gentleman persisted in his motion, he trusted he would find himself nearly alone. Mr. GALLATIN wondered that the gentleman from Massachusetts should be so greatly surprised at a motion of this kind, because if he had attended to the rules of the House, he would have found that it was a course expressly prescribed by them. It had been acted upon before during this session. The principle, he said, was well understood. When a member disapproves of the principle of a bill altogether, and does not wish to go at all into a discussion of the detail, he moves to reject it before it goes to a second reading. This bill goes to authorize the PRESIDENT to raise an army. He did not know what was meant by a provisional army. He did not find any thing said in the Constitution of the United States relative to provisional armies, or of giving the PRESIDENT power to raise armies. He found mentioned there no other kind of defence than an army and militia. It says Congress shall raise and support an army, not provide for the raising of an army; but this bill is to enable the PRESIDENT OF THE UNITED STATES to raise an army. The constitution has declared that the raising of an army is placed in Congress, but this bill goes to declare that this power shall be vested by law in the PRESIDENT. That is the principle of the bill: and if Congress were once to admit the principle that they have a right to vest in the PRESIDENT powers placed in their hands by the constitution, that instrument would become a piece of blank paper. If it were to be admitted in one case, it would be admitted in another; and, if admitted in one department, it might be admitted in another. The power to raise taxes, he said, is contained in the same article of the constitution which says Congress shall raise armies. And if they could delegate the power of raising an army to the PRESIDENT, why not do the same with respect to the power of raising taxes? He supposed the House would next hear of provisional taxes, to be raised if the PRESIDENT shall think fit. Mr. G., therefore, thought the principle inadmissible. If the circumstances of the Union required an army, let it be raised; if not, he wished to give no power to raise it--especially, as the PRESIDENT, if he saw necessity, could call Congress together, if he should find that the circumstances of the country required it. Mr. G. thought the House had already decided that no additional army was necessary at present, in agreeing to an additional regiment of artillery; as the select committee, when they brought in that bill, had the report of the Secretary of War before them, which stated, besides the regiment of artillery, that other additional force would be necessary; and having reported no other, it was to be supposed they thought no other necessary. But, if it was thought the House had not gone far enough, he was willing to go farther, but not willing to transfer their power to judge of the propriety of raising an army. Mr. DANA hoped this bill would not be rejected on its first reading. It required no labored arguments to prove that the motion might be made; but more than had been adduced to show that it ought to be adopted. He thought the gentleman from Massachusetts ought not to have been surprised at this motion, because it was best calculated for exciting alarm. It was said the Senate proceeded in a similar way on the bill sent up from this House for a repeal of the stamp act; but that question had already been agreed upon in the Senate on a distinct proposition, and there was, therefore, no necessity for going again into it. The gentleman from Pennsylvania had said that when the House agreed upon an additional regiment of artillery, they negatively decided against any other standing force. The gentleman might put what construction he pleased upon that vote, he could assure him for himself that he had no such idea when he voted. This bill, Mr. D. said, provided for the raising of a regular force, in case the PRESIDENT shall think the situation of the country requires it. He is also authorized to accept of the services of the volunteer corps. The bill could be amended in any manner which gentlemen thought proper. But the gentleman from Pennsylvania does not know what a provisional army means. He believed this was no new principle. He believed it was acted upon when the three additional regiments were raised to the then existing corps. It was in principle the same as when an army is directed to be raised, but where the PRESIDENT has power given him to suspend the raising of it, if he shall see it necessary. Mr. SEWALL said that, though the present motion be not irregular in point of form, yet it is a manner of proceeding very objectionable at this time. His colleague had complained of this motion being a surprise upon the House. He had good reason so to consider it. And the House will consider whether it is expedient, without entering into a consideration of the bill, without seeing whether any alteration could be made in it, so as to render it more agreeable to gentlemen, thus to attempt to destroy the bill. What was the motive of the gentleman from Virginia in making the motion might easily be discovered. He had obtained leave of absence, which might have a tendency to hurry him in his political course. He wished to be heard on this subject, but this hurry of his to return home ought not to hurry the House in its proceedings. Those gentlemen who had determined to take this course had the advantage of others who were unprepared for such a motion. Mr. HARPER believed, notwithstanding what had been advanced by the gentleman from Pennsylvania, (Mr. GALLATIN,) that this was a very unprecedented measure; because however prepared the House may be on some occasions, at the first blush of business, to decide upon the abstract principle, yet it was perfectly novel in their proceedings to reject a bill on its first reading, which contains such a variety of propositions, and which is capable of such a variety of modifications as the present. It was also as little consonant with the present situation of the country as it was with their usual modes of proceeding. The allusion to the decision on the bill for repealing the stamp act (as had been shown) was no way applicable. He could see no other view in a proposition of this kind but a determination to resist every measure for the defence of the country. If the intention had not been to destroy the bill, it would have been suffered to have taken its usual course, and attempts would have been made to amend it. If a provisional army was not liked, gentlemen might have had the army immediately raised; or, if 20,000 men were too many, fewer might have been proposed. If gentlemen did not think the army immediately necessary, and did not choose to leave it with the PRESIDENT to judge of that necessity, they might make it to depend upon a declaration of war by France, on an invasion, or in case Victor Hugues were to bring his troops, or send his threatened frigates against us, or if an insurrection should be excited by our enemy, then the PRESIDENT should be empowered to raise an army. But gentlemen say this bill ought to be rejected, because it is unconstitutional. Could gentlemen be serious in making this objection? Were troops ever raised in a different manner? And if they had the power to authorize the PRESIDENT to raise troops immediately, they could certainly do it under such contingencies as they thought proper. Did not Congress intrust the PRESIDENT with the discretionary power of borrowing money, of, in some cases, fixing salaries, &c., which powers were equally vested in them with the power of raising armies; and this must be the case, except gentlemen insist that Congress should itself do all the acts committed to it; and if so, they must always be in session. But the gentleman from Pennsylvania says, that if this power be delegated to the PRESIDENT, Congress may as well intrust the PRESIDENT with the power of raising provisional taxes. He had no hesitation in saying, that he believed this might be done; that the House might determine upon a tax, and authorize the collecting of it, only in case the PRESIDENT should find it necessary, or in case a certain event should take place. With respect, then, to the expediency of the measure--he did not speak of the expediency of raising 20,000 men, because any other number might be determined upon--but as to the thing itself. What is the internal and external state of this country? Do we not know that the enemy has in view a plan upon which they place great reliance--of gaining over to their cause a certain class of men, who abound in the Southern part of this country, and by whose means they intend to subjugate or destroy the country? We do know this--gentlemen from the Southern States know it; yet they say it is impossible to raise any regular force to repel the enemy. He could not believe, that when we had to meet an enemy, who has always fought by means of domestic insurrection, who is now subverting the most ancient Governments in the world by these means, it would be consistent with any maxim of common sense to be unprepared for the worst. What, said he, is our external situation? Do we not see the nation with whom we are at variance find quarrels with every country who is not strong enough to resist her? Does she not injure us on every side? Do we not hear of depredatory threats, and the mischiefs she has the power of doing us, urged as reasons why we should submit to her? And yet, after being told of these designs, shall we sit with our arms folded, and make no defence? For the measures already taken will be nothing without this. Fortifications would be nothing except supported by a sufficient number of infantry and cavalry. What, he asked, is the situation of the West Indies? Were they not told that Victor Hugues, with 5,000 of his best troops, is ready to make a blow upon the Southern country, whenever the word of command shall be given? They knew that these troops existed; they had been seen, and the desperate character of their leader was also known. Yet, with this enemy upon our threshold, within four or five days' sail of us, we still fold our arms, and say we will make no defence. When he reflected upon these things, he could not help deploring that fatal blindness, that stubborn spirit of opposition, in certain gentlemen, which could hide from their view the danger of our present situation; that, at a period when the veil is rending from before the eyes of the community; when those who have been the most blind out-of-doors begin to see, that those gentlemen in this House, who, from their ancient birth and fortunes, might be supposed to possess the true American spirit, should still persist in their blind, their destructive course, was greatly to be lamented. And though he could not doubt the fate of this bill, yet that there should be a few men found supporting measures which tend directly to the destruction of the country, he could not help lamenting. Mr. BALDWIN did not agree with the gentleman who had just sat down, that the present motion was either unprecedented or improper. When it is proposed to make a law on any subject, it presents itself to discussion on two grounds, the principles of the law and the details. The proper stages to debate the general principle on which the law is to be founded, by the rules of this House, are, when it is proposed to introduce the law, and at the third reading, when it is considered as finished, and on its passage; the intermediate stages of the discussion are all supposed to be employed to settle and adjust the detail. He had often regretted that members, having been accustomed to different modes of proceeding in their State Legislatures, were so apt to disturb and keep unsettled their modes of proceeding in this House. He knew it was sometimes a practice, after a bill had been read the second time, and was referred to be shaped and formed by free discussion in Committee of the Whole, a member would rise to amend the bill by striking out the first section, declaring, at the same time, that he made the motion for the purpose of destroying the bill--a mere law fiction, under color of detail and amendment, to contest the original principle and destroy the bill. Without doubt the commencement of the business is the regular stage to contest the principle. If it originates in this House, it is on a motion in Committee of the Whole, expressing in general terms the expediency that such a law should be provided; if it comes from the Senate, the same question presents itself after the first reading, in the words of the present motion, which are the very words prescribed by the stated rule of the House. If on this question the majority of the House appear in favor of the principle of the bill, it goes on through the stages of its detail and formation, and at the third reading the general question occurs again, shall the principle, detailed as it now appears, pass into a law? He was sure no member could object to the fairness and propriety of the present motion. As to the principle of the bill, he must say, it did not meet his approbation. If the House is convinced it is necessary to raise an Army of twenty thousand men, as the bill now proposes, they ought to say so at once, and let it be done; if they are not convinced that it is necessary, the law ought not to pass, the Army ought not to be raised till they are convinced it is necessary. The constitution made the Legislature the sole judge on this subject. The present bill says it is not necessary to raise this Army now, but perhaps it may be before Congress meets again, it therefore proposes to transfer the right of judging on this subject to the Executive; he thought it a very improper transfer of Legislative power. It has been said that all our troops are raised thus provisionally. If attention is paid to those laws, it will be seen that they did not pass till the Legislature was convinced that circumstances then required the troops to be raised; a clause is added, that if circumstances should alter so as to make the troops unnecessary, the PRESIDENT might forbear to raise, or discharge them; it gives him power to disband the Army, but not to raise one. Mr. RUTLEDGE said, as the principal objection against this bill seemed to arise from an idea that the militia would be found sufficient for every purpose of defence for this country, he thought gentlemen had better concur in letting the bill go to a second reading and be committed, and before it again came under consideration, the militia bill would probably have been determined upon. He was pleased to hear gentlemen say that the country must be defended, and if an effective militia could not be had, it must be done by a force of this kind. For his own part, from the proceedings already had upon the militia bill, he had not much to hope of its passing; and if not, gentlemen would certainly see the necessity of some additional standing force. Mr. R. could not conceive what objections could have been induced by the gentleman from Pennsylvania (as he was not in the House when he spoke) on a constitutional ground. Mr. R. adduced, as in point, the law enabling the PRESIDENT to call out troops in consequence of the Western insurrection, and that making provision for the effectual protection of the frontiers of the United States. Mr. R. then mentioned his expectation of despatches being received from our Ministers in Paris in the course of twelve hours (a particular mention of which has already been made) which might convince all of the propriety of going into this measure; for he believed it was the wish of all to defend the country with vigor and effect, and that they only differed as to the means of doing it. Mr. MCDOWELL was in favor of the motion for rejecting the bill, as it contained two principles which he thought inadmissible; the first, because it delegated Legislative power to the PRESIDENT; the other, as it respects volunteer corps. The first, he believed, would be unconstitutional, and the last would go to the destruction of the militia of the United States. If our situation be such as it had been figured to the committee by the gentleman from South Carolina, they ought to turn their attention to it, and create an army themselves, and not direct the PRESIDENT to do it if he shall judge proper. But if there be no real appearance of danger, but it is merely conjectural, then it is not necessary to act. Gentlemen have talked of members folding their arms and doing nothing for the defence of the United States. It must be recollected that we have gone considerable lengths in measures of defence. We have voted large sums for the frigates, for fortifications, for an additional regiment of artillery, and put in requisition 80,000 militia. If gentlemen can show that these measures, with our former establishment, are not sufficient for our present situation, he was ready to go further, but he was not willing to delegate any power lodged with that House to another branch of the Government. It was well known, Mr. McD. said, that it had been the wish of the late PRESIDENT, that it was also the wish of the present PRESIDENT, of the Heads of Departments, and many members of Congress, to increase our Military Establishment, and to fix a standing army in this country. It has heretofore, however, been opposed with success, except in time of war. If we were to be involved in war, an army must be resorted to in aid of the militia; but, in the first instance, the militia might be depended upon as a sure and safe defence of this country. He was sure they would be equal to any invasion, and if we were to engage in a lengthy and formidable war, we must provide accordingly. Mr. S. SMITH hoped this motion would be withdrawn. At a time like the present, when the people of the United States are looking up to Congress in expectation of their taking effectual measures of defence against what they think not only a possible, but probable event, he wished nothing to appear like indifference to that object. He agreed with the gentleman from South Carolina (Mr. HARPER) that if gentlemen did not like the bill, it might be amended; but to reject it altogether would have too much the appearance of indifference to the defence of the country. He did not know that this would be the best and most effectual mode of defence; he thought a better might be established, but he had not made up his mind upon it. He would, however, throw out an idea or two for the consideration of the committee. Last session, eighty thousand man were ordered to be held in requisition. He thought if the PRESIDENT was to draw out twenty thousand of these for three months, and when their time expired, to draw out twenty thousand more, and so on, till the whole had been out, it might afford a sufficient protection, and more speedily than any other, and it would have the good effect of making eighty thousand soldiers. In addition to this, there might be a provision authorizing the PRESIDENT to receive volunteer corps of cavalry from the Southern States, to be commanded by their own officers, to serve in a manner as shall be directed by law, the equipments for which to be furnished by the United States, which would be more effectual than a general law to raise three or four thousand cavalry. Mr. MACON said, that some of the arguments used on this occasion were of an extraordinary nature. The motion was first said to be contrary to rule, and then unprecedented. It must certainly be allowed to be as proper to debate a bill on its first reading, as to refuse to refer a resolution. The fact was, that motions of this kind were made every session. It was said to be a surprise upon gentlemen; this could not be the case, if they had done their duty, as it had lain on their desks for some time. One reason, with him, for wishing the bill to be rejected in this stage was, that he was desirous of bringing the session to a close. It was wonderful that gentlemen should persist in bringing standing troops into the Southern States against their will. If members from that quarter were of opinion that their militia was sufficient defence, why will gentlemen be so over civil as to force troops upon them? It was a little extraordinary that gentlemen most in favor of this bill are the most opposed to the plan for newly organizing the militia. [Mr. DANA doubted the fact.] It was said that, because gentlemen are opposed to this bill, they are opposed to all measures of defence. The fact was otherwise; they wished only to avoid unnecessary expense. If they were to bring forward a proposition for raising one hundred thousand or two hundred thousand men, and it was opposed, they might say the same thing. He supposed every man wished to defend his country. He had only heard one reason in favor of committing the bill, and that was, that it was probable we might shortly hear from our Commissioners. If there was any certainty in that, it might be ground for delaying a decision. Mr. GALLATIN could not conceive why it should be insinuated that there was any thing unfair in making opposition to this bill on its first reading; for, if gentlemen were not ready to vote against the bill, they would, of course, vote for committing it, so that the opposition would have less chance of succeeding now than in the future stages of the bill. In the meanwhile, he wished to take every opportunity of endeavoring to destroy the bill. If a majority could be got against it on the first reading, so much the better, as it would prevent a loss of time in future discussion. He was not, however, afraid of discussion; he believed, the more it was discussed, the more the committee would be convinced of the impropriety of passing this bill. He did not believe, as had been supposed, that it was capable of amendment in any of its essential parts. It had been said, that a contingency might be mentioned; or a time fixed, at the expiration of which, the army might be raised. Such a bill would, however, be altogether different, as this bill vested the power of judging of the proper time with the PRESIDENT; nor could he see how it was susceptible of the amendments suggested by the gentleman from Maryland. If he thought it was, he would certainly agree to its being committed, as he perfectly concurred in the plan he mentioned; but such a system would be so different from the present, that it would be a much shorter and better course to reject this bill, and originate a new one. He thought a bill of this kind was sufficient to alarm the House, and that it ought to be opposed in every stage, notwithstanding what was said about the danger of the country; indeed that danger was what strengthened his opposition to the bill; for, if our danger be, as it is represented, likely to come from Victor Hugues and his troops, from an insurrection of the negroes, from disaffected persons, from our enemy being at the door, it is the duty of Congress to raise an army themselves, and not to give the PRESIDENT the power of doing it; but if it is not believed that this representation of danger rests upon any specific ground, but that it is merely imaginary, then there is no necessity for giving the PRESIDENT the power, as he can call Congress together whenever he thinks proper. If the danger of invasion was great, he should not hesitate to raise an army, without waiting until the event took place. He thought, therefore, the gentleman from South Carolina was not right to say that the opposition to this bill arose from a determined opposition to every thing like defensive measures. Mr. G. said it was true he did not apprehend all the dangers which that gentleman had spoken of; but, if they really did exist, he had a much greater reliance upon the militia of the country for defence than that gentleman seemed to have. He knew that though in some States they were not either well disciplined or well armed, yet they were organized, and had their officers, and the States being in possession of arms, they would be a much more effectual defence, and sooner brought together than any other force. He did not believe that giving the President the power to raise 20,000 men would be so effectual as the calling out of 20,000 militia, as the one could be raised immediately, and the raising of the other would be doubtful. Besides, in proportion as the danger exists, it would be better to call upon the people themselves to defend their country, than upon hired troops. If any danger was to be apprehended from the negroes, they would be best suppressed by the people in the States where they are. A militia is every where; whereas a standing army may be very distant from any attack which may take place. A standing army in Virginia, for instance, would do little good against insurgents in South Carolina; and if an insurrection of that kind was not immediately suppressed by the people, the mischief would be incalculable. Mr. RUTLEDGE thought it necessary, as the gentleman from Virginia had withdrawn his opposition to the commitment of the bill from what had fallen from him with respect to the probability of despatches being shortly received from our Ministers, to state upon what ground he had said this. [Mr. R. then mentioned the arrival of the _Pomona_ at Baltimore.] Mr. MCDOWELL did not think the information given by the gentleman from South Carolina (Mr. RUTLEDGE) ought to put off the decision of the question which had been under consideration. WEDNESDAY, April 25. _Provisional Army._ The SPEAKER having declared the question on the bill from the Senate for the raising of a provisional army, viz: "Shall this bill be rejected?" to be first in order before the House, Mr. MCDOWELL said, upon further consideration, and conceiving that gentlemen might wish to see the contents of the despatches of our Ministers, which had been mentioned, before they gave their vote on this occasion, he should withdraw his opposition to the second reading of the bill. The bill was then read a second time; and a motion being made to commit it to the Committee of the Whole on the state of the Union, Mr. LYON called for the yeas and nays; but only himself and another member rising in support of the motion, it was not carried. The bill was then referred. _Department of the Navy._ Mr. HARPER called for the order of the day on the bill for establishing an Executive department, to be denominated _The Department of the Navy_. The House accordingly went into a Committee of the Whole on this bill, and rose without making any amendment in the bill; but, upon the question, in the House, of its passing to a third reading, Mr. GALLATIN said, he had not proposed any amendment to this bill in the Committee of the Whole, because, what he had to say upon it, would go against the principle of the bill. He did not think it necessary to establish a Navy Department. He did not suppose our Army and Navy were at present so large as to require two separate departments. If the business was so much increased as that the persons at present employed could not do it, they might be increased. Nor did he believe, with some gentlemen, that such an institution would produce economy; on the contrary, he always found that the increase of officers was the increase of expense. Some time ago, it was said that great economy would arise from appointing a Purveyor of Supplies; but he had seen, from the time of this establishment, a great and constant increase of expense, in every thing which relates to supplies. Not seeing the necessity of it, therefore, he should vote against it, except good reason should be given for it; for he believed, the moment a department of this kind was established, the head of it would wish to make it of as great importance as possible, by endeavors to extend the object of his superintendence. He called for the yeas and nays upon the question, which were agreed to be taken. Mr. J. WILLIAMS did not feel disposed to vote for this bill. It appeared to him that the Secretary of War, with officers under him, would be sufficient for the management of our naval concerns also. It was some time after the constitution was framed before the War Department was established. Whenever an office was established, something was always found for it to do. Soon after the War Department was established we had an Indian war; and after that Indian war ceased, another establishment was made under the name of the Accountant's Office. If the business was increased, new clerks might be employed, but he should be against any new department. If we were engaged in hostilities, and our naval power of course increased, such an establishment might be necessary; but at present he did not think it necessary, nor did he think our revenue equal to the support of a Navy which should require such an establishment to take care of it. If this office was to superintend the construction of vessels, persons acquainted with this business might be employed under the Secretary of War. The present expense of the War Department was $18,250 a year; and though there would not be much to do in this new office, he supposed the expense would not be much less; and, besides, Congress would be importuned, from session to session, to increase our naval force. Mr. W. said he was desirous of making every defence for our country, yet he wished to keep down our expenses as much as possible. If circumstances called for going further into the business of the Navy, he should not object to it. Mr. SEWALL said, when the House was considering any subject relative to the increase of the Navy, complaints were made of the enormous expenses and of the little responsibility which attends the business; and when it has been said that the greatness of the expense might have arisen from a want of knowledge in the persons who had the care of the business, it was said that defect ought to be remedied. This department is intended to do that, and, by the expense of a few hundred dollars, he had no doubt thousands would be saved. When talking about vessels, it was complained that too great an expense was incurred on this object; now it is said there is no object for the proposed officer to attend to. But the gentleman from New York (Mr. WILLIAMS) was afraid, if this office was established, it would be the means of increasing the Navy. This certainly could not be done, contrary to the will of Congress. He thought there were obvious reasons for the establishment of this department. It was well known that an officer might be well acquainted with the business of the army, without knowing any thing about a navy; and a man employed at the head of such a department ought to have some knowledge of the business committed to his care. Mr. S. said, however well the present Secretary of War might be acquainted with army concerns, he believed he was not conversant with naval matters. In consequence of this, he had a number of agents employed under him. Indeed, the War Department had so much business on its hands, as not to be able to pay a sufficient attention to our naval establishment. He therefore believed it was necessary to make this new establishment, especially as the Navy Department was likely to be considerably augmented. Mr. S. SMITH believed, after all the struggles which had been made on this subject, it would at length be found necessary for the United States seriously to turn their attention to the establishment of an efficient naval force; and the sooner gentlemen could bring their minds to this, the better it would be for the general good. If this proposition had been brought forward at the commencement of the session, he should have thought it unnecessary; but, from the increase which had been made during this session, he thought the establishment proper. $950,000 had been appropriated for providing twelve vessels; a number of galleys were also contemplated. A ship of war or schooner, it appears, has been built on the lakes, and some galleys on the rivers. These, with the frigates and cutters, form an establishment which will require a naval man to superintend it. An expenditure of two millions of dollars, he supposed, would be authorized this session; and a man knowing something of naval architecture will be able to save more, in the course of this year, to the United States, than will pay ten years of the expenses of this office. A merchant going into the building of vessels without a knowledge of the business will find the truth of this fact. The great expenditure attending the building of the frigates, he supposed had been chiefly owing to the want of such an establishment as the present. The gentleman from New York had stated the expense of the War Department at $18,250; but one-half of that expense was incurred in the office of the Accountant of the War Department; and as there would be no need of a new Accountant, the expense could not be doubled. The duties of the War Department are greatly increased, and might be further increased during the present session; and an expenditure of the kind proposed might save the throwing away of thousands of dollars. Mr. MACON said, the arguments in favor of this bill were derived from a want of knowledge of naval affairs in the War Department. He thought that might be supplied without the establishment of a new department; but he believed the building of the frigates had mostly been carried on under the direction of the captains who were to have the command of them. More clerks had been added to the War Department, in consideration of the business which the Navy had occasioned. He believed the more officers were appointed, the more money would be expended. Mr. OTIS said, the gentleman from New York had opposed this bill on different grounds from the gentleman from Pennsylvania. He did not make any reply to the gentleman from Pennsylvania, because he expected opposition from him and some others, to every measure which had the defence of the country for its object; and, as the session was drawing to a close, he thought it best to have as little debate as possible, and that the sooner the question was taken the better; but when he saw a gentleman rise in opposition to it, upon whose support he calculated, he was apprehensive lest it might have an effect upon other persons on whose support he also relied. The gentleman from New York seemed to apprehend some new and heavy expense was to be incurred, and that some greater caution was now necessary than heretofore. What saving, then, does he mean to make by opposing the establishment of this office? Since he supposes the same clerks will be sufficient, it will only be the salary of the chief officer, which, Mr. O. supposed, would be $3,500--a greater saving than that which would be made by such a person in every ship built or purchased. Taking the expense of our Naval Establishment at one million dollars a year, it would only be an expense of one-third per cent., which every one must allow was a mere trifle, to have the money of the public well expended. The services of the War and Navy Departments were, he said, perfectly distinct. The duties of the War Department became every day more arduous, and whatever gentlemen may think, they must become still more so. This opposition coming from a friend, he could not suppose it arose from a bad motive, but merely from a narrow conception of what is conceived to be the agricultural interest. Agriculture and commerce, said Mr. O., are twin sisters, and cannot live separate from each other; they must live together, or expire at the same moment. It was the duty of gentlemen representing agriculturists thus to speak to their constituents. It was an axiom realized by every politician in the world. The fact was, that every thing spent upon the Naval Department was so much saved, in which the agricultural part of the country partake very largely. Mr. T. CLAIBORNE never remembered to have heard such language as had fallen from the gentleman last up. He laments, said Mr. C., that a gentleman who usually voted with him should dare to think for himself. Are gentlemen's opinions and language thus to be circumscribed? [Mr. O. explained.] Mr. C. continued, the gentleman was willing that all questions should now be taken without debate. Does this mean, said he, that there are a majority of members in this House who must always be in the right, and a minority always in the wrong? If this be the case, they had better dismiss the minority, and do the business themselves. Were not gentlemen any longer to express their difference of opinion? Would this be the way to keep the Government together, or to preserve harmony in the country? If this were to be the situation of things, he should regret it with tears in his eyes. He had himself no mathematical certainty that any opinion of his was right; nor did he think the gentleman from Massachusetts ought to expect men to bow to his. Such an assumption led to mischief of a serious kind. What! to say we have a majority, and therefore we will have no debate. [The SPEAKER said no such expression had been made use of; if it had, he should have checked it.] Had it not been for an expression of this kind, he should not have risen on this question. He wished to hear every man deliver his opinion freely. Mr. C. did not believe the bill to be a proper one, and he should therefore vote against it. Mr. MCDOWELL said, he should be opposed to the bill, if he had no other objection to it than that it went to countenance the idea, according to the gentlemen from Maryland and Massachusetts, that this country must go into the establishment of a large naval power. The great saving to be derived from this office, he understood to be from savings in the building of vessels; but, as the twelve vessels which were lately voted are proposed to be purchased, ready built, he supposed this reason did not apply at present. If there was no intention, therefore, (which he trusted there was not,) of carrying our Naval Establishment to any considerable extent, he could see no occasion for the creation of this office. For, if this Secretary of the Navy was appointed, he would also be obliged to rely upon others, in a great degree, for information. Mr. HARPER said, the naval defence which this House thought necessary for the service of the country having been voted, he could not agree with those gentlemen who consider this as a question of defence. He thought it a question of economy, and, in this view, he should reply to some observations which had been made upon it. He believed our naval defence would be much more efficaciously and speedily provided by means of the proposed establishment than if the bill was rejected. So far, indeed, it is a question of defence, but only collaterally so. The point of view in which this bill should be considered, is simply this: will it not effect with more speed and economy the marine defence now existing, as well as that contemplated? He himself had no doubt as to the fact. Indeed, he would ask the gentleman from North Carolina, whether, if he were about to erect a distillery on his place, he would employ his overseer to do it, who, though he might understand the business of his farm very well, knew nothing of building. He certainly would not; and if this would be bad policy in an individual, it would be equally so in a nation. Besides, the expense would be so trifling as only to amount (as had been stated) to one-third per cent., though traders were in the habit of paying five per cent. to have their business done. But it was said, that if an office of this kind was established, it would soon create business. But the business is already created. We have, said he, already a marine of fifteen ships of war. This, he knew, was comparatively a small force, but in the establishment of which we shall yet expend two millions of dollars, and the support of which will amount at least to $700,000 or $800,000 annually. When the War Department was first established, the object of its care was not, he believed, of equal magnitude. Mr. R. WILLIAMS was ready to acknowledge he did not believe it could ever be the interest of this country to go into the establishment of a large naval power, and therefore he should not be in favor of the present bill on that ground. Nor did he think there was any good reason for dividing the military and naval business, except there was more than could be attended to by the present establishment. But it was said the business was of a different nature, and therefore it ought to be in separate departments, as one man cannot be supposed to understand both concerns. That objection would apply to any of the other departments; and whenever this rule of dividing business shall be adopted, we shall get men of inferior talents to do it. When the Government was established, it was thought that a War Department would be equal to the military and naval concerns of this country. But it was said a navy was not then thought of; it was, however, doubtless thought of when the frigates were ordered to be built, and it was not then gone into. It was, however, said that much money had been lost for want of an officer of this kind. This was mere assertion, and it was by no means clear that the business would be done better with such an officer than without him. But it was said, it was necessary to go into this measure for the sake of appearances. To whom are these appearances to be made? Not to our own people, but to European nations. The gentleman from Massachusetts says we ought to adopt their opinion upon this subject. He viewed a policy of this kind the most fatal of any other to this country. He believed that the less we had to do with European politics, and their mode of administration, the better. The only object in view, with that House, ought to be the interest of their own country. What, said he, is the situation of those countries which have gone into the establishment of large navies? They are involved in debt which they never can, and never will, pay. Mr. J. WILLIAMS said, the only point in dispute was, whether a separate office should be established for the business of the Navy, or whether it should be put under the care of a superintendent in the War Department. He wished the gentleman from Massachusetts (Mr. OTIS) had spared his observations until he had heard those of the gentleman from Maryland, (Mr. S. SMITH.) It had appeared to him that a superintendent in the War Department would have been sufficient, and he yet thought so. He did not think the business of the Navy was so great as to require a separate establishment. There was more business in the War Department in 1794 than at present, and nothing was then heard of a new department. He should not have opposed this measure if he had not been convinced that every measure taken to increase the Navy beyond its present establishment would have a bad effect on this country. It had been proposed last winter to purchase all the live-oak timber in the Southern States; afterwards a proposition was brought forward for the establishment of navy yards. Those measures had been defeated, and they were now called upon to establish a new department for this favorite object. He was not willing to do it. The gentleman from Massachusetts said there would only be a difference between making a new office, and continuing to do the business in the War Department, of the salary of the chief officer; but if he looked at the second clause of the bill, he would find himself mistaken, as there was in that provision for a principal clerk, and such other clerks as he shall judge necessary: so that he may have a clerk for every port in the Union, if he pleases. If he represented, as the gentleman from Massachusetts does, a commercial interest, he might be as favorable to a Navy as him; but as that was not the case, he was opposed to it. He gave his approbation to such appropriations as he thought necessary; and if, in this instance, he differed in opinion from the gentleman from Massachusetts, he should stand excused. He believed with that gentleman, that the commercial and agricultural interests were closely connected; they differed only as to the extent to which it was proper to carry our naval defence. He did not wish, however, at present, to reject the bill. He believed it might be amended, and he had no objection to the question being postponed for that purpose. Mr. LIVINGSTON said, he was almost tempted to smile at the arrogant pretensions of some gentlemen in this House, in their treatment of others, at least their equals on this floor, whatever they might be out of doors, being equally with them Representatives of the people. They were told by the gentleman from Massachusetts (Mr. OTIS) that opposition was expected, was looked for, from certain gentlemen; that no argument was necessary on the occasion, because those members who were opposed to all measures of defence, would oppose this measure also; but that those who had originated the measure would carry it into effect. This simple declaration of a strength of party was also attended with a very handsome rebuke of one of his colleagues (Mr. J. WILLIAMS) for having dared to doubt the propriety of the measure before the committee. He was happy to find this rebuke had produced its effect, and that though his colleague was at first very decidedly against the bill, he was now disposed to doubt; and the effect of another rebuke, he supposed, would obtain his vote in favor of the new establishment. For his own part, neither the rebuke, nor the preliminary observations with which it was accompanied, had produced any effect upon him. He did very much doubt the propriety of the measure; for, although there was a great deal of business in the War Office, and the same person could not be supposed to be acquainted with military and naval affairs, if a ship-builder was to have the appointment, he could not think such a person fit to be one of the great council of the nation; and it must be recollected that the person who holds this office will become one of the counsellors of the President on all great concerns. It was said that this establishment was necessary, in order to give an appearance of defence to Europe, as if the establishment of a Department of the Navy was to have the effect to do away all our past and to prevent future injuries. But our appearance to Europe was not all; the example of European countries was mentioned. All were said to have a Marine Department. The practice of Europe, Mr. L. said, had proved itself to be a bad one, as the navies of those countries had proved the ruin of them. The yeas and nays were taken upon this bill going to its third reading, and decided in the affirmative--yeas 47, nays 41, as follows: YEAS.--John Allen, Bailey Bartlett, James A. Bayard, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, John Dennis, George Dent, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, William Hindman, Hezekiah L. Hosmer, James H. Imlay, Samuel Lyman, James Machir, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Josiah Parker, Thomas Pinckney, John Read, John Rutledge, jun., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Thompson J. Skinner, Nathaniel Smith, Samuel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, and Peleg Wadsworth. NAYS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Stephen Bullock, Thomas Claiborne, William Charles Cole Claiborne, Matthew Clay, Thomas T. Davis, John Dawson, Lucas Elmendorph, William Findlay, John Fowler, Albert Gallatin, James Gillespie, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, William Smith, Richard Sprigg, jun., Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, John Williams, and Robert Williams.[31] THURSDAY, April 26. The bill for establishing an Executive Department, to be denominated the Department of the Navy, was read the third time and passed--42 to 27. _Military Appropriations._ On motion, the House again resolved itself into a Committee of the Whole on the bill appropriating for the Military Establishment for the year 1798; when, the question for filling the blank in the Quartermaster's Department with $200,000 again recurring, Mr. GALLATIN moved to fill the blank with $150,000, which was the sum he had proposed on a former day, since which, he said, the House had received a number of statements from the Secretary of War, in order to induce a larger appropriation. As there seemed to be a general concurrence of opinion to restrict the expenses of the War Department, he wished some gentlemen, better able to do it than himself, would compare the number of troops in service with the sums there required. Mr. G. noticed a number of items which appeared to him unaccountably extravagant, and contrasted the very great expense incurred on the North-western frontier with that of the troops employed on the seaboard. Mr. G. also took a view of the expenses under this head from the year 1789 to the present time, in order to show that $150,000 would be a sufficient appropriation. After commenting pretty freely and at large on the estimates from the War Office, Mr. G. said, he believed there was some radical defect with respect to the connection subsisting between the Accountant's department, the Treasury and War Departments, which prevented a proper investigation of accounts. So far as relates to the Treasury Department, the accounts were always very clear, and there was no ground of complaint; but, from the connection which subsists between the War Department and the Accountant's department, there seemed to be a want of responsibility. In the details which had been laid before the House, Mr. G. said, he found items under the head of contingencies, which he should never have expected to have found there; one was for the pay of an inspector of the troops and garrisons of the United States, at a salary of sixty dollars a month. He could not say such an officer was not necessary; but if he was, he would say he ought to have been provided for by law. The other item was for a much larger sum, viz: the pay of an engineer of the fortifications of the United States, at a salary of three thousand dollars a year, which was a salary greater than that of the Secretary of War. It appears that this engineer was engaged for three years; but, after he had been some time in the service, two thousand dollars were given him over and above his pay, to relinquish his contract. After a few observations from Mr. DANA, in favor of the Secretary of War, Mr. SHEPARD rose, and went over the different items contained in the statement read yesterday, particularly the boatmen, $13,000; the pack-horsemen, $5,000; the wagoners, $7,000; the laborers, $3,000; the armorers, $6,000; the artificers, $14,000; hire of expresses, $6,000; and fuel, $8,000. He could not tell how so many boatmen, pack-horsemen, and wagoners, could be employed (for it was not for boats, pack-horses, and wagons, but for the men alone;) and what so many laborers could be employed in he could not imagine. He did not see why the soldiers could not do all the labor the Army had to do themselves. When he was in the Army, he was at no expense like this. And how the repairing the arms for three thousand men could cost $6,000 he could not tell; nor could he see how $14,000 could be expended on artificers. If we were to be involved in war, it would not do to expend money in this manner. It was easy to write down thirty, fifty, or one hundred thousand dollars for this or that, but when the taxes came to be laid, the money would not be so easily raised. Mr. S. passed over a number of articles, till he came to fuel. He thought $8,000 a year for fuel, in a country where the trees were ready to fall upon them, was a very exorbitant charge. While he was in the Army, it never cost him sixpence for fuel. The United States had better purchase the land upon which the timber grows, at once; they would be able to get it for a much less sum. If these expenses were to be incurred for five thousand men, what would be the expense of an Army of thirty thousand men? This estimate, he was sure, must be much too large; and it became Congress to be careful how they gave encouragement to such charges as these, for the country would scarcely be able to support the expense of any considerable establishment if more economy was not used. The question on filling the blank with two hundred thousand dollars, was put, and negatived without a division. Mr. GALLATIN moved to fill the blank with $150,000. He said that, with respect to the integrity of the Secretary of War, he did not doubt it in the least; as to his talents he had no opportunity of forming a correct judgment of them; he was, however, some judge of accounts, and he saw enough of them to authorize the declaration which he had made as to the improper connection of the different departments. He had spoken of facts only. The question for filling the blank with $150,000 was put, and carried without a division. After agreeing to several other items, amongst which was one for the vessels on the Lakes, the committee rose, the House agreed to the amendment, and the bill was ordered to be engrossed for a third reading. _Presents to Ministers._ The SPEAKER said he had received a letter this morning, signed Thomas Pinckney, which he was desired to lay before the House. It was accordingly read. It stated that when he (Mr. Pinckney) had concluded the late treaty with the Spanish Government, the Spanish Minister, the Prince of Peace, informed him the presents usually given in such cases would be prepared for him; and that also when he took leave of the British Court, the like information was given to him by the Minister there. To both of which he replied, that the Constitution of the United States forbade its Ministers from receiving any present from any foreign Prince or State, without the consent of Congress; that in due time he would ask that consent, and act accordingly. This letter asks for the determination of Congress. It was moved by Mr. RUTLEDGE to refer this letter to a select committee. Mr. MACON wished it to go to a Committee of the whole House. After some observations, the latter motion was negatived, and the former carried. FRIDAY, April 27. On motion of Mr. W. C. CLAIBORNE, the House went into a Committee of the Whole on the bill directing the payment of a detachment of militia, for services performed in the year 1794, under the command of Major James Orr. The bill was reported without amendment, and ordered to be engrossed for a third reading to-morrow. WEDNESDAY, May 2. _Naturalization Law._ On motion of Mr. SEWALL, the House went into a Committee of the Whole on the report made yesterday by the Committee for the Protection of Commerce and the Defence of the Country, on the subject of naturalization; and the report having been read, and the first resolution for prolonging the term of residence before aliens shall be admitted as citizens, being under consideration, Mr. SEWALL said, the term of residence now required from foreigners before they can become citizens, is five years. The committee think this period too short; it is much shorter than the period adopted by the French Government. The committee were of opinion that a residence of at least ten years should be required; but this might be left a blank in the bill, and afterwards filled. Mr. HARPER believed that it was high time we should recover from the mistake which this country fell into when it first began to form its constitutions, of admitting foreigners to citizenship. This mistake, he believed, had been productive of very great evils to this country, and, unless corrected, he was apprehensive those evils would greatly increase. He believed the time was now come when it would be proper to declare, that nothing but birth should entitle a man to citizenship in this country. He thought this was the proper season for making the declaration. He believed the United States had experience enough to cure them of the folly of believing that the strength and happiness of the country would be promoted by admitting to the rights of citizenship all the congregations of people who resort to these shores from every part of the world. Under these impressions, which, as he supposed they would have the same force upon others as upon himself, he should not detain the committee by dilating upon, he proposed to amend the resolution by adding to it the following words, viz: "that provision ought to be made by law for preventing any person becoming entitled to the rights of a citizen of the United States, except by birth." The CHAIRMAN declared this amendment would be a substitute to the resolution before the committee, and therefore not in order. Mr. OTIS said, he would propose an amendment, which he believed would be in order, which was as follows, namely, "and that no alien born, who is not at present a citizen of the United States, shall hereafter be capable of holding any office of honor, trust, or profit, under the United States." Mr. HARPER moved to amend this amendment, by adding the following words: "or of voting at the election of any member of the Legislature of the United States, or of any State." Mr. H. said, he was for giving foreigners every facility for acquiring property, of holding this property, of raising their families, and of transferring their property to their families. He was willing they should form citizens for us; but as to the rights of citizenship, he was not willing they should be enjoyed, except by persons born in this country. He did not think this even was desirable by the persons themselves. Why, he asked, did foreigners seek a residence in this country? He supposed it was either to better their condition, or to live under a Government better and more free than that they had left. But was it necessary these persons should at once become entitled to take a part in the concerns of our Government? He believed it by no means necessary, either to their happiness or prosperity, and he was sure it would not tend to the happiness of this country. If the native citizens are not indeed adequate to the performance of the duties of Government, it might be expedient to invite legislators or voters from other countries to do that business for which they themselves are not qualified. But if the people of the country, who owe their birth to it, are adequate to all the duties of Government, he could not see for what reason strangers should be admitted; strangers who, however acceptable they may be in other respects, could not have the same views and attachments with native citizens. Under this view of the subject, he was convinced it was an essential policy, which lay at the bottom of civil society, that none but persons born in the country should be permitted to take a part in the Government. There might have been, Mr. H. acknowledged, individual exceptions, and there may be again, to this general rule; but it was necessary to make regulations general, and he believed the danger arising from admitting foreigners generally to citizenship would be greater than the inconveniences arising from debarring from citizenship the most deserving foreigners. He believed it would have been well for this country if the principle contained in this amendment had been adopted sooner; he hoped it would now be adopted. Mr. S. SMITH believed it would be best first to decide upon the resolution as reported; if it was negatived, the gentleman from South Carolina might then introduce his amendment as a substitute. To adopt the resolution as reported would be, he believed, to agree upon an _ex post facto_ regulation. It could not be intended, he should suppose, to prevent persons who had resided in this country two or three years, under the expectation of becoming citizens at the end of five years, from that privilege. Mr. CHAMPLIN suggested whether, if this amendment was adopted, it would not prevent foreigners, who are not at present citizens of the United States, from becoming officers in the Military or Naval Departments of the United States. If so, he believed it would be proper to insert the word "civil" before "officers." Mr. OTIS acknowledged that the objections of the gentleman from Maryland (Mr. S. SMITH) were, in some degree, well founded; but there might be regulations introduced into the bill to avoid them. The present law, he believed, directs that persons shall give notice of their intention of becoming citizens of the United States. Where this notice had been given, he thought such persons should be excluded from the operation of the law. These resolutions having only been laid upon the table this morning, he wished, however, that the committee might rise, in order to afford a little time for consideration. He wished to exclude all foreigners, whom he could constitutionally exclude, from holding offices in the United States; but not to entrap such as are in the way of becoming citizens. Mr. HARPER said, that, having had it suggested to him that the constitution would not admit of restraining the States in their admission of citizens, he should withdraw his amendment for the present, until he had had an opportunity of examining the constitution in this respect. The motion being put for the committee to rise, it was carried, and the committee rose accordingly. THURSDAY, May 3. _Naturalization Law._ Mr. SEWALL moved the House to go into a Committee of the Whole on the state of the Union, in order to resume the consideration of the resolution which had been reported on the subject of aliens. Mr. OTIS wished to propose a resolution to the House, before it resolved itself into a Committee of the Whole on the state of the Union, as a substitute for the first resolution, reported by the Committee for the Protection of Commerce and the Defence of the Country. It was to the following effect: "_Resolved_, That no alien born, who is not at present a citizen of the United States, shall hereafter be capable of holding any office of honor, trust, or profit, under the United States." Mr. VENABLE did not think the House were authorized to enact such a principle into a law. If taken up at all, it ought to be considered as a proposition for amending the constitution. If it was thought necessary by gentlemen to amend the constitution in this way, he should not object to going into the subject. After foreigners were admitted as citizens, Congress had not the power of declaring what should be their rights; the constitution has done this. Foreigners must, therefore, be refused the privilege of becoming citizens altogether, or admitted to all the rights of citizens. Mr. OTIS had no idea that this proposition could be considered as a proposition to amend the constitution. If the House had the power to amend the naturalization law, and to extend the time of residence necessary to entitle an alien to citizenship, they could certainly extend it to the life of man. The idea of citizenship did not always include the power of holding offices. In Great Britain no alien was ever permitted to hold an office, he wished they might not be allowed to do it here. The SPEAKER said this was not the proper time to argue whether this proposition ought to be considered as an amendment to the constitution. The Committee of the Whole would report upon it as they thought proper. Mr. VENABLE did not object to the resolution being referred, but thought it ought to go rather to an ordinary Committee of the Whole than to that on the state of the Union, as he did not believe Congress had the power of saying, men who were entitled to hold offices by the constitution, shall not hold them. The motion for reference was put and carried, there being for it 45 votes. The House then resolved itself into a Committee of the Whole on the state of the Union, Mr. DENT in the chair; when Mr. OTIS moved to postpone the consideration of the resolution formerly under consideration, for extending the time of residence of aliens before they should be entitled to citizenship, in order to take up the resolution which he had proposed, and which had been referred to this committee. The question was put and negatived--51 to 26. The question then returned upon the motion made by Mr. OTIS yesterday, to amend the first resolution, by adding words of the same tenor with those contained in the resolution referred this morning. Mr. MACON said, whether it would be good or bad policy to adopt a regulation of this kind, he would not inquire, because he believed the PRESIDENT and Senate could always appoint such men as they thought proper to office. If a man is a citizen, he is eligible to office agreeably to the constitutional rule, and that could not be altered by law. If the people chose to elect a foreigner as a member of the Legislature, if he had been a citizen seven years, Congress could not say he should not be eligible. They might, indeed, make the time of residence, to entitle a foreigner to citizenship, so long, as to prevent him in that way from holding a seat in the Legislature; but, after a man is a citizen, he must be entitled to the rights of a citizen. Mr. OTIS said, gentlemen could certainly read the constitution for themselves, and draw their own conclusions from it. He himself had not the smallest doubt as to the constitutionality of restricting aliens in the way proposed. He believed that Congress, having the power to establish an uniform rule of naturalization, could, if they thought proper, make a residence of forty or fifty years necessary before an alien should be entitled to citizenship, which would extend to the whole life of a person, and prove an effectual exclusion. If Congress, then, had a right to exclude foreigners altogether from citizenship, any modification of that right was certainly within their power, and would be an advantage to aliens, for which they ought to be grateful. There would be nothing in this contrary to the constitution; for it was always acknowledged that where an absolute power may be exercised, a conditional power may also be exercised. What advantage, he asked, was derived to this country from giving aliens eligibility to office? The people of this country were certainly equal to the legislation and administration of their own Government, comprising all the aliens who are now become citizens. He had no doubt but many aliens would become very valuable acquisitions to this country; but he had no idea of admitting them into the Government. He did not wish to open the door to the intrigues of other countries in this way; since we know there are countries whose chief attention is paid to the obtaining of influence in the internal concerns of the countries over which they wish to have dominion. And he could see it possible that persons might be furnished by such a country to come here and buy lands, and by that means, in time, get into the Government. Great Britain, he said, was very careful of the avenues which led to her liberty in this respect. Aliens were there excluded from holding all places of honor, profit, or trust. The situation of America heretofore was different from what it is at present. It had not only been thought good policy, in times past, to encourage foreigners to come to this country, but also to admit them into the Legislature, and important offices. But now, said he, America is growing into a nation of importance, and it would be an object with foreign nations to gain an influence in our councils; and, before any such attempt was made, it was proper to make provision against it; for if the time ever should arrive when a number of persons of this description had found their way into the Legislature, a motion of this kind would of course be very odious. If, however, gentlemen were of a different opinion and think the object would be better accomplished by extending the residence of aliens, he should not object to that course being taken, though he thought the one he proposed perfectly within the power of the House. Mr. SITGREAVES wished that, in attaining an object in which all seemed to concur, they might avoid any constitutional embarrassment; and this it was allowed might be done by extending the time of residence of aliens so far, as to prevent them from ever becoming citizens, by which means persons who could not be considered as having a common interest with the citizens of the country, would be effectually excluded from holding offices in the Government. Mr. OTIS withdrew his amendment; and then all the three resolutions were agreed to, without a dissenting voice. The committee rose, and reported the resolutions. The two first were concurred in; but, on the question being put on the third, Mr. N. SMITH said, a foreign Government might do an act tantamount to war, without declaring it, yet according to the wording of the proposition, the citizens of that country could not be removed. He therefore moved to amend the proposition by adding the words, "being native citizens of any country the Government whereof shall be at war with the United States." Mr. SEWALL said, the only objection that he had to this amendment arose from the consideration that Congress alone had the power of deciding on the question of war, and he could not therefore see how it could be determined that any nation was at war with us, until the declaration was made by that nation, or by Congress. Mr. OTIS wished his friend from Connecticut would admit of an amendment which he held in his hand, in the place of that which he had offered. It was in the following words: "or shall authorize hostilities against the United States." Mr. N. SMITH had no objection. Mr. MCDOWELL thought this motion more objectionable than that of the gentleman from Connecticut. It ought to be remembered, Mr. McD. said, that inducements had been held out to foreigners to come to this country, and many of them had come with a view of becoming citizens of this country, and many, he believed, were as good as any amongst us. Out of respect to these foreigners, he should not wish to place them in the situation which this amendment went to place them in; because it might be said, hostilities were authorized when no war was declared, and these people might be treated as if the nation from which they came was at war with us, when no war existed. It had been said our population was now sufficient, and that the privileges heretofore allowed to foreigners might now be withdrawn. In some parts of the country, this might, in some degree, be the case; but he knew there were other parts which wanted population. From this consideration, and as he did not wish unnecessarily to distress the minds of foreigners who had taken up their residence amongst us, he should vote against this amendment. Mr. J. WILLIAMS was persuaded, that, if this proposition passed, no good citizen need be afraid of being disturbed. He had no objection to this resolution without the amendment, nor had he any particular objection to the amendment. Mr. RUTLEDGE was so far from believing that this amendment would check the immigration of foreigners, that he believed it would encourage it. Foreigners came here to live under a good Government, and the more secure the Government was made, the greater would be their desire to live under it; and he believed a greater security could not be given to it, than was proposed to be given by this amendment. It was wished to vest a power in the President to send out of the country persons who were natives of a country with whom we are at war, or who may have authorized hostilities against us. In fact, in the situation of things in which we are now placed, the PRESIDENT should have the power of removing such intriguing agents and spies as are now spread all over the country. What, said Mr. R., would be the conduct of France, if in our situation? In twenty-four hours every man of this description would either be sent out of the country or put in jail, and such conduct was wise. Was there nothing, Mr. R. asked, to admonish us to take a measure of this kind? Yes, there was. A gentleman from Kentucky (Mr. DAVIS) had said, that a person was in that State delivering commissions into the hands of every man who was so abandoned as to receive them. Other means were also taken to alienate the affection of our citizens; and are we still, said he, to say we will not send these persons out of the country until a declaration of war is made? If these persons are suffered to remain, France will never declare war, as she will consider the residence of these men amongst us as of greater consequence than the lining of our seaboard with privateers, or covering our coasts with men. Mr. VENABLE did not wish to show any particular encouragement to foreigners; but, if persons thought they could live happier here than in their own country, he should not object to their making the change. He could not agree to the amendment. Suppose hostility was committed upon the property of any of our citizens by France, such hostility might not be sufficient cause for placing all our commercial citizens in a situation of having their property seized. Many cases might be deemed hostility by the PRESIDENT which ought not to go to cut off all communication between the citizens of the two countries. In such a case, if any of the citizens of France should be taken up here, it would produce a similar conduct towards our citizens in that country, which would be allowed to be a serious evil. Mr. SEWALL again urged, as an objection to this amendment, the constitutional power of Congress to declare war. Too many circumstances of insult and aggression, he allowed, had been experienced by this country from a foreign power, which might have been understood by other nations as war, and might have been so considered by this country; yet, as it is an act of Congress to declare war, we could not be considered as at war until Congress declared us to be in such a state, except war was declared against us. This provision was not intended for any particular case, but as a general provision, which might at any time be called forth by proclamation. It should, therefore, be as well guarded and definite as possible. If the words proposed were introduced, the proposition would be rendered too indefinite; and the PRESIDENT might proceed to send aliens from this country, and of course cause our citizens in a foreign country to be sent from thence, or to be imprisoned, and their property confiscated, at a time when Congress might not judge it expedient to go to war. France, said he, has now done towards the United States what might be considered as hostility. Suppose we pass a law which calls upon the PRESIDENT to act, what ought the PRESIDENT to do? Was he to determine the point whether France has authorized hostilities against the United States? If so, he would doubtless say she had, and in consequence every Frenchman in this country will be liable to be removed out of the country, and our citizens who happen to be in France will be placed in the same situation. Mr. S. said, though it might be proper for Congress to declare this to be the state of the country, he thought it would be improper to give the PRESIDENT this power. He wished the power of sending persons out of the country to be confined to such cases as were particularly dangerous, which were included in the resolution without this amendment. As to foreigners guilty of crimes against the United States, they ought to be apprehended and punished according to the existing laws: the present regulation was not pointed at them. Mr. OTIS said, as his colleague had chosen to call his amendment indefinite, he must excuse him when he said he considered the resolution without it, as trifling and ineffectual, and argued a timidity which ought not at this time to be shown by this country; and had he not been thoroughly acquainted with the uprightness of intention and the purity of the motives of his colleague, he should really have doubted whether he was sincerely desirous of exerting all the energies of the country in her defence; but, being persuaded of these, he would suppose that he himself was wrong in his conception on this occasion, and would make a few observations as to the ground upon which he formed his opinion. He believed it would not be proper to wait until predatory incursions were made--until the enemy was landed in our country, or until what shall be considered as threatening or actual invasion appeared--before any steps were taken on the subject now under consideration. He was of opinion that when an enemy authorized hostilities, that was the time to take up that crowd of spies and inflammatory agents which overspread the country like the locusts of Egypt, and who were continually attacking our liberties. The provision would doubtless be exercised with discretion. There might be Frenchmen in this city and others (and he doubted not there were) who were peaceable, well-disposed persons, and against whom it never could be thought necessary to exercise this power; but there were other persons, not only in this city, but in others, who have not only been extremely instrumental in fomenting hostilities against this country, but also in alienating the affections of our own citizens; and it was men of this description whom he wished to remove from the country. It is proposed by this resolution to give the PRESIDENT the power to remove aliens, when the country from which they come shall _threaten_ an invasion. Some believe that this country is at present threatened with an invasion, and with a ravage of our coasts, yet others say that the despatches from our Envoys only consist of unauthorized conversations with X, Y, and Z, and therefore not to be relied upon. Mr. O. thought this a more indefinite power than that which he proposed to vest in the PRESIDENT. His opinion was, that something ought to be done which should strike these people with terror; he did not wish to give them an opportunity of executing any of their seditious and malignant purposes; he did not desire, in this season of danger, to _boggle_ about slight forms, nor to pay respect to treaties already abrogated, but to seize these persons wherever they could be found carrying on their vile purposes. Without this, every thing else which had been done in the way of defence would amount to nothing. Mr. MCDOWELL said, from the observations of the gentleman who had just sat down, it would appear that hostilities had already commenced between this country and France. If this is the case, and the House knew it, why not say so, and make preparations accordingly? Why pass acts fitted for a state of war, without declaring that that is the state of the country? [Mr. OTIS said, if the gentleman from North Carolina would bring forward a proposition of this kind, he should be ready to vote for it.] Mr. McD. expected the gentleman was prepared for war, and, therefore, that he would have brought forward a resolution to that effect himself. The gentleman from South Carolina (Mr. RUTLEDGE) had not considered this amendment with his usual accuracy, when he said that the adoption of it would prove an encouragement to foreigners to come to this country. He thought it could not be very flattering encouragement to foreigners, to tell them, "if you come here, and your Government commits any act of hostility against the citizens of this country, you will be liable to be imprisoned, or sent out of the country." But it was said the country swarmed with spies and seditious persons. If this was the case, he should be glad if gentlemen would point them out; if they could, he should be as glad as they to take measures against them. A person in Kentucky had been alluded to. Under the authority of _Genet_, he believed some commissions had been issued; but he did not believe that any had been issued since. It was also known that there had been another Minister of another country who had adopted a similar practice. He still remained here, and might still be carrying on his mischievous schemes.[32] [The SPEAKER said the resolution was general.] It was said that hostilities having been committed on our commerce by France, they would authorize a war with France, (though Great Britain had conducted herself much in the same way, and nothing was said as to her,) and that therefore the PRESIDENT ought to be empowered to send all Frenchmen out of the country, however peaceably they might be residing here, if he thought proper to do so. This he could not consent to. It was too large a power. He should therefore vote against the amendment. Mr. SITGREAVES considered this as one of the essential features of the system of defence about which Congress had been employed during the present session, in order to enable us to meet the dangers which threaten us. He believed, that though it might be extremely wise and prudent to enter into regulations for securing our peace at all future periods, yet it was most particularly their duty to concert measures of defence and protection in our present exigencies. He believed the business of defence would be very imperfectly done, if they confined their operations of defence to land and naval forces, and neglected to destroy the cankerworm which is corroding in the heart of the country. There could be no question on this subject. It is well understood by every member of the community. There is no occasion for specific proof that there are a great number of aliens in this country from that nation with whom we have at present alarming differences; that there are emissaries amongst us, who have not only fomented our differences with that country, but who have endeavored to create divisions amongst our own citizens. They are, said he, assiduously employed at this moment, and it is much to be lamented that there exists no authority to restrain the evil. It was therefore peculiarly incumbent on Congress to add to their other measures of defence, such powers as will protect the country against this evil. He believed this could not be effected without the adoption of some such principle as that under consideration. If the power was too limited, the enemy would not be met. There could be no difficulty, Mr. S. said, in point of right. All understood the rights to which aliens are entitled by the laws of nations. They are no more than the rights of hospitality, and this right varies according to the relation in which the country from which they come, and that in which they reside, is peaceable, or otherwise. We do not owe to the citizens of France residents in this country (since France had been mentioned) the same hospitalities which we owe to those foreigners who are alien friends; though he confessed there were rights of hospitality which could not be done away in time of war, particularly as it respects alien merchants, which were provided for in this resolution. And except a person had an actual agency in designs which would endanger the peace of the country, though he was ordered out of the country, a free passage would be given to himself and effects; and if actually engaged in designs against the country, there would be a strong necessity for restraining the liberty of any such persons. It had been well asked, whether we ought to wait till the enemy landed, before any measures were taken to remove persons from the country, who would be ready to join them by thousands, or take advantage of knowledge we have of their hostile intentions towards us? He thought there could be no doubt on the subject. He knew there were aliens in this country, of valuable characters, whose acquaintance ought to be cherished and cultivated. Such men would be in no danger from the proposed provision. It was meant only to operate against factious and bad men, who abuse the liberty allowed to them of residing in this country, and these all must see the necessity of attending to. France, said he, will not admit an alien of any description to reside in her country without a card of hospitality, and shall Congress scruple to go the length of this amendment? He hoped not. Mr. ALLEN said, he would move an amendment which would supersede that under consideration, by making the resolution extend to _all aliens_ in this country. He wished to retain none of the restraints which are in the present resolution. Nothing but his respect for the gentleman who made this report (Mr. SEWALL) would have prevented him from suspecting that there existed some latent and mischievous design in this business. The proposition goes upon the supposition that none but the citizens of a particular nation can be dangerous to this country; whereas he believed that there are citizens of several other countries who are as dangerous, who have dispositions equally hostile to this country with the French--he believed more so. He believed the whole country was aware of this. Mr. A. alluded to the vast number of naturalizations which lately took place in this city to support a particular party in a particular election. It did not appear to him necessary to have the exercise of this power depend upon any contingency, such as a threatening of invasion, or war, before it could be exercised. He wished the PRESIDENT to have it at all times. He moved an amendment to this effect, which went to enable the PRESIDENT to remove at any time the citizen of any foreign country whatever, not a citizen, regarding the treaties with such countries. If gentlemen took a view of the different States of Europe which had been subdued by the French, Mr. A. said, they would not think it either wise or prudent to wait for an invasion, or threatened invasion, before this power was put in execution. Venice, Switzerland and Rome, had been overcome by means of the agents of the French nation, at a time when they were in a much less alarming situation than we are at present; and the first disturbance in those countries was made the pretext of open hostility. This has been the effect of _diplomatic agency_; of emissaries within and without, who have bred quarrels, for the purpose of forming pretexts for measures which have led to the subjugation of those countries. He believed there were citizens in this country who would be ready to join a foreign power in assisting to subjugate their country. What passed before our eyes, and every day offended our ears, were so many proofs of it. Not many weeks ago open threats were made to disturb the peace of the country. He hoped, therefore, with all these things before them, the amendment which he had proposed would be agreed to. Mr. SEWALL said, being one of the committee who made this report, he supposed he fell in for a share of that censure which had been so liberally cast upon it by his colleague, and the gentleman last up from Connecticut. The gentleman from Connecticut had thought fit to condemn the committee for not having considered cases which were not referred to them. It was not referred to them to consider what France had done in all other countries with whom she had had disputes, or what this country should do against France; but what should be done with respect to aliens in this country generally. Civil policy regarded aliens in two lights, viz: alien friends and alien enemies. He did not contemplate the making of this country a wall against all aliens whatever; or that no alien should come here without being subject to an arbitrary authority, such as is known only to the French Directory. If the existence of such a power as shall be able to place every alien in the country in a dungeon, was necessary to quiet the fears and apprehensions of the gentleman from Connecticut, he should not be willing to grant it. Indeed, it appeared to him that the fears and apprehensions of that gentleman arose from some defect in his own organization, or disease of his body (which he believed might be better cured by the physician, than by any thing else) rather than from any real ground of alarm. What, said Mr. S., is to be feared from the residence of aliens amongst us? Any thing to ruin the country? He acknowledged many inconveniences arose from this circumstance, but more from our own unnatural children, who, in the bosom of their parent, conspired her destruction. But did the gentleman wish to increase the evil, by saying that persons born in foreign countries, however regular and orderly their conduct may be, shall be liable to be imprisoned, or sent out of the country, but that citizens of this country, however reprehensible their conduct, should have nothing to fear? The committee were not called upon to report on this point. He was himself of opinion that more ought to be done, and that aliens from any country should be liable to be removed, in case of misbehavior; but he did not wish to leave the business wholly with the PRESIDENT OF THE UNITED STATES. The committee had reported only in part; they had yet to consider what steps would be proper to be taken against aliens, or citizens, guilty of criminal proceedings; but when gentlemen saw the addresses which were pouring in from all parts of the country in favor of the measures which had been pursued by Government, and expressions of determination to support every measure in defence of their country, was any thing to be feared from a handful of aliens? It was a reproach to the country to suppose it. If aliens were found to be guilty of seditious practices, let them be restricted; but not placed under an arbitrary authority. He never wished to see the Government of this country in such a situation. Our situation, said Mr. S., is not like that of the Directory of France, whom all of the nation are cursing; we have, therefore, no necessity for the strong measures adopted by them. But if gentlemen were determined to arrest every alien in the country, let them bring forward a resolution of that kind; but, in making regulations against alien enemies, let us not subject every foreigner who comes to this country, however well intended he may be, to the fear of a dungeon or removal. If gentlemen wished to make the resolution more general, and to provide for cases, in which war was first declared by this country, though he had before said he did not think it necessary, he had no objection to indulge them, by inserting the words, "between which and the United States there shall exist a declared state of war." But unless the United States were inclined to assume the character of the Turks or Arabs, such a regulation as was recommended by the gentleman from Connecticut could not be adopted. Mr. ALLEN had no particular anxiety that the resolution should pass to the extent which he had proposed. If gentlemen did not think it necessary, he should not persist in it. He was sorry the gentleman from Massachusetts should have discovered in him any disease of body which was capable of giving rise to personal fear. He believed he possessed as little as most men. As to the necessity of the measure which he had proposed, he would mention two circumstances which led him to think it necessary. A person in this city, who has too respectable a standing, and who is doing too much business in it, has declared that he wishes to see a French army land in this country, and that he would do all in his power to further their landing. He had heard nearly the same thing from another quarter. He thought, therefore, that there ought to exist a power which should be able to send such persons out of the country. Not that he was himself either afraid of being assassinated or having the city burnt. But the chairman of the committee had said, that this subject was yet before them. This he did not know, before the gentleman said so; for, having made a report upon the subject, he supposed that they had done all they intended to do upon it. Mr. DANA was opposed to this amendment. He thought the provisions of this resolution ought to be made definite, as it contemplated regulations which Congress would be willing to have in existence at all future times; and though the principle upon which the residence of aliens was regulated is laid down in the law of nations, as it relates to monarchical Governments, yet, in this country, where the sovereignty of the country is vested by the constitution in Congress, these regulations must be fixed by law. The danger of war with which the country was threatened had forced the subject upon Congress at this time, and this being the case, he was desirous of adopting some regulations of a permanent nature respecting it. If any other regulations were necessary with respect to our present situation with France, he thought they ought to be made special and temporary. Mr. ALLEN withdrew his amendment; when Mr. OTIS'S proposition returned, the question on which was put and negatived--55 to 27. Mr. SEWALL made the motion which he had suggested when he was last up, viz: to add the words, "between which and the United States shall exist a state of war." Mr. OTIS hoped this motion would not prevail, as he thought it would deprive the resolution of every good feature which it at present possessed; for it would prevent the exercise of the power in any other case than in a state of war; and as all the expressions were future, it supposed that such a state did not exist at present. He confessed he set no value at all upon any law, unless it was adapted to the present exigencies of the country. Gentlemen might talk as they pleased about permanent regulations; he believed they ought to provide against the residence of alien enemies existing in the bosom of the country, as the root of all the evil which we are at present experiencing, and he could not conceive any mode of doing this, but by applying the remedy immediately to the evil. Gentlemen talk about a declaration of war. No such thing scarcely ever precedes war. War and the declaration of war come together, like thunder and lightning. Indeed, if France finds she can enfeeble our councils by refraining to declare war, and that we will take no measures of effectual defence until this is done, it is probable she will not declare it, but continue to annoy us as at present. He therefore thought, if the select committee had not been ripe for making a report fully on this subject, they ought to have delayed it until they were. Mr. SEWALL explained. Mr. SITGREAVES said, he had suffered no little from finding the difference of opinion which existed between the chairman of the committee who made the report on this subject, and gentlemen who usually voted with him. He saw that difference of opinion was essential and radical. He did not mean to go into the subject, but merely to make a proposition, and call the yeas and nays upon it. It was to add the words, "or shall declare hostility against the United States." Mr. DAVIS moved a postponement of this question till to-morrow, as he wished time to consider of it. He had some doubts as to the constitutionality of such a provision. Mr. SITGREAVES had no objection to a postponement, if time was wanted for consideration; but he could not see on what constitutional ground this motion could be objected to. Mr. GALLATIN was in favor of the postponement. He would suggest to his colleague that part of the constitution which might be in the way of this motion. A distinction was made by it between actual hostility and war. If it had only gone to have made a difference between declared and actual war, by striking out the word "declare," it would have removed the objection. If there be a difference between a state of war and of actual hostility, there is also a difference in the relation between alien subjects of a nation with whom we are at war, and those of a nation with whom we are in a state of actual hostility. If this distinction be correct, by turning to the 9th section of the constitution, it is found that the migration of such persons as any of the States shall think proper to admit, shall not be prohibited by Congress, prior to the year 1808. He understood it, however, to be a sound principle that alien enemies might be removed, although the emigration of persons be not prohibited by a principle which existed prior to the constitution, and coeval with the law of nations. The question was, therefore, whether the citizens or subjects of nations in actual hostility can be considered as alien enemies. The term "actual hostility," is vague in its nature, and would introduce doubt as to its true import. He should, therefore, be in favor of the postponement, except the mover would consent to have the word "declare" struck out in the way he had mentioned. The question for a postponement was put and carried; and the two first resolutions were referred to a select committee, to report a bill or bills accordingly. FRIDAY, May 4. _Presents to Ministers._ Mr. BAYARD called for the order of the day on the resolution from the Senate granting leave to Mr. Pinckney, our late Ambassador to Great Britain and Spain, to receive certain presents from those courts, on his taking leave. The House accordingly went into a Committee of the Whole on the subject, and the resolution having been read, Mr. BAYARD moved that the committee concur. Mr. MCDOWELL said, this was a new subject, and, as it struck him, of importance. Notwithstanding he felt as much disposed as any member of the committee to do every thing respectful to our late Minister to London and Madrid, yet, when he looked upon the constitution, and reflected upon the intention of the clause which forbids the receiving of presents by our Ministers, and the consequences which must flow from a precedent of this kind, he could not easily bring himself to consent to it, unless some gentleman could show the propriety or necessity of it in a stronger light than he at present saw it. If we allow our Ministers to receive presents from foreign courts, on their taking leave, we must also calculate upon giving presents to all the foreign Ministers who come here, and these we have every reason to expect, will be constantly increasing. Besides, he objected to the principle of these presents. What are they given for? He supposed it was to gain their friendly offices and good wishes towards the country who gave them. He thought this improper; and he believed it would be well now to put a stop to the business, as a fairer opportunity could never occur of trying the principle, for if it ever could be allowed, in consideration of public services, it could not be better deserved than in the present case; but believing the principle to be a bad one, he should, therefore, be opposed to it. Mr. BAYARD said, every constitutional objection must vanish on a single view of the article, because it allows that presents may be received, if the consent of Congress is obtained; and, so far from the constitution insinuating that it would be bad policy to allow these presents to be received, it proves that they might be received if inconvenience in receiving them could be avoided. He supposed the constitutional provision was meant to oblige Ministers to make known to the world whatever presents they might receive from foreign courts, and to place themselves in such a situation as to make it impossible for them to be unduly influenced by any such presents. Indeed, he supposed those presents would produce a directly contrary effect, for when a Minister was known to have received a present of this kind, he would naturally be particularly careful of all his actions, lest he should be supposed to be improperly biased. If presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors; but any evil of this kind was securely avoided by the notoriety of the act. What, said Mr. B., is this present? It is a gold snuff-box, a gold chain, a picture, or some trifling thing which could have no possible operation upon any man. It was necessary, he believed, to attend to these little civilities and ceremonies, as the want of attention to them often produced hostility between nations. He had some doubt from the constitution, whether it was necessary in this case, to have applied to Congress at all for leave to have received these presents, as the office of this gentleman had expired before they were offered. Under the old articles of Confederation, a like provision was in being, only that the receipt of presents by our Ministers was positively forbidden, without any exception about leave of Congress; but their being allowed to be received under the present Government, by consent of Congress, shows that they might be received in certain cases. He had, indeed, been informed that, notwithstanding the prohibition under the former constitution, presents were frequently received by Ministers; for, though persons holding offices were forbidden to receive presents, the moment their office ceased, and they became private individuals, they were no longer prohibited from receiving any presents which might be offered to them. Under these circumstances he thought the resolution ought to be agreed to. Mr. W. C. C. CLAIBORNE hoped the present resolution would not be adopted. When this subject was first brought into view, he felt inclined to favor the request. This first impression arose from his great personal respect for the applicant, and the desire he felt to gratify his wishes. But, upon a little reflection, it appeared to him that policy dictated the propriety of rejecting the present resolution. So far as relates to the constitutionality of receiving the presents in question, he thought no member would join in opinion with the member from Delaware last up. By recurring to the letter of the gentleman from South Carolina, (Mr. PINCKNEY) it would appear that these presents were offered to him when he was about to take leave of the courts to which he was Minister. He was, of course, at that time, the Minister of the United States, and came within the constitutional prohibition. The prohibition in the constitution appeared to him to be bottomed on sound policy, and of great importance to the security, the happiness, and freedom of the nation. [Mr. C. read the clause.] The object of this clause appeared to him very different from what had been stated to be its object by the gentleman from Delaware. He believed it was intended to lock up every door to foreign influence, to the influence of courts and monarchies, which could not but prove baneful to every free country. He had been told that it was the custom of Europe, when a favorite Minister was about to take his departure, not only to present him with presents, but also to confer a title upon him; and if the leave now asked was granted, a precedent would be established which he apprehended would, at a future day, bring the question before Congress, whether leave should be given for a citizen of this country to receive a title from a foreign monarch, and thus all the folly and vices of European courts will be brought up for discussion before the Congress of the United States; and he had no doubt characters might be found who would desire such a distinction, and others who would advocate the granting of it. On the contrary, he was persuaded that, if the vote of this House negatived the present resolution, no future application would be made on this subject. The reason, in his opinion, which induced the insertion of a clause in the constitution that presents might be received when leave of Congress was obtained, was this: That in the course of events, a case might exist, in which it might be proper for a citizen of the United States to receive a present from a foreign Government. Many, perhaps, might be named; he thought of one: Suppose an officer of our navy were to render essential service to the vessel of a foreign power in distress on the high seas, it might be proper, in such a case, for Congress to permit the officer to receive any suitable present as a reward for his service and benevolent exertions in the clause of the unfortunate. But, he believed, in all ordinary cases, every present ought to be rejected. Mr. OTIS saw no ground for the apprehensions which the gentleman from Tennessee had manifested, as to the effects to be produced by concurring in the resolution now before them. When every present to be received must be laid before Congress, no fear need be apprehended from the effects of any such presents. For, it must be presumed, that the gentleman who makes the application has done his duty, as he, at the moment he makes the application, comes before his country to be judged. In the present case, he supposed no idea could be entertained that our Minister had not done his duty, or that he had been bribed by a foreign power, as a reason for not granting the request. But it was strange that gentlemen should assert that, if presents were allowed to be received, Congress might next be asked to consent to the introduction of titles; for the constitution expressly says, presents may be received, but, with respect to titles, it says, "no title of nobility shall be granted." Mr. O. said it was altogether a matter of discretion in the gentleman from South Carolina, whether or not he had asked consent to receive the presents in question; for he is at present no officer of the United States, and he might receive them as a private citizen. He believed he had a perfect right to do so, though it might not consist with the delicacy of his character. Mr. O. said he had it from the best authority, that, even under the old Confederation, though presents were unconditionally prohibited, Dr. Franklin, Mr. Jefferson, and Mr. Laurens, received the customary presents on their departure from the foreign Courts at which they were employed. They, to be sure, communicated the fact to Congress after they had received them. And they received them for a good reason, because they could not refuse them without giving umbrage to the Courts which presented them. He, therefore, thought it very improper for gentlemen to suggest difficulties of the kind which had been brought forward, as if the gentleman making the application was personally concerned--it could not be considered as any object to him. The question was merely whether we would conform or not to the customs and usages of other nations, with the presents in question; in which there certainly could be nothing either dangerous or alarming. Mr. MACON had no doubt Congress had a right to grant leave to receive the presents in question, and believed the determination in this case would fix the usage in future. He believed an application could never be made to the House, in which there could be less objection to the applicant, than in the present case. He was convinced that the gentleman from Massachusetts need not to have said that this was no object to the gentleman from South Carolina. He was sure no one thought so. He believed it was improper to bring any personal considerations into the question. He was sure there had not been a more popular act done for this country for a long time than the treaty which that gentleman had concluded with Spain. But the committee were told that this resolution ought to be adopted, because it was a European custom. If, said he, we adopt this custom, we must adopt another--that of paying foreign Ministers who come here. And he owned he should not be willing to see any of them carry off the money of his constituents, because he did not think the conduct of any of them was deserving of such a fee. Mr. BAYARD remarked that the gentleman from Tennessee seemed to be greatly alarmed, lest the agreeing to this resolution should destroy the liberties of the country; and that a precedent of leave being given to a Minister to accept of a gold snuff-box or a gold chain, should hereafter be brought as a sanction to the granting of titles of nobility. But he asked the gentleman, as a lawyer, whether he conceived that a precedent for granting permission to a Minister to receive a snuff-box could be adduced as a precedent for granting titles of nobility? It certainly could not. Therefore, as to precedent, the gentleman might feel himself perfectly at ease. There could be no doubt but that the Congress of the United States might give their consent to a citizen receiving a title from a foreign power; but he could not apprehend that they would ever do so. Was this, then, to be brought as an argument against allowing a gentleman--against whose conduct the most slanderous tongue had never said a word--from receiving the customary trifling presents, on his leaving a foreign Court? He trusted not. He allowed it would be a precedent for the future in this respect, and that Congress might expect to be called upon hereafter for similar permissions. But he did not think there was any thing alarming in this--the amount would be very trifling; and he did not know that having a few additional gold snuff-boxes in the country could produce any material effect. As to the constitutional question, he thought it was as he had already stated it. Mr. VENABLE wished that every thing which was said upon this subject might be said without reference to the gentleman making the application, but that it might be considered as establishing a general principle which was to operate hereafter. It was said that it was necessary to accept of these presents as a point of etiquette, and that refusal to accept of them might give offence. He did not believe this could be the case, as it was well known to the European Courts that our Government is established on principles totally different from theirs; and when our Ministers informed them that their Government did not permit them to receive presents, it must be a satisfactory reason for not accepting them. He knew that these presents were sometimes made in pictures, sometimes in snuff-boxes, and sometimes in money. And, said he, if these presents were not sanctioned by custom, would it not appear an indelicate thing to offer these things to a Minister of a foreign country? It certainly would. If the origin of the custom was, therefore, a bad one, the United States ought not to adopt it, since they had now the choice of doing so or not. He hoped the United States would always make sufficient provision for their own Ministers, and not permit them to receive any thing from a foreign Court. A contrary custom, to say the least of it, would prove a very troublesome and disagreeable one. Mr. W. CLAIBORNE submitted to the gentleman from Delaware, as a lawyer, whether the committee could gather, from any thing before the House, that these presents made by foreign Courts consisted of chains or snuff-boxes? He owned he could draw no such conclusion for himself. But whatever the present may be, it was immaterial to him in the present question, because he was convinced that nothing which a European monarch had it in his power to give, could lessen the patriotism of our late Minister, or alienate his affections from his country. It was not to the amount of the present; and whether it was a snuff-box, or any thing else, which was a thing of no consequence, and ought not to have been named. He objected to the principle of our foreign Ministers receiving presents at all from European monarchs. This principle he looked upon as the more dangerous, because it opened an avenue to foreign influence--an influence among monarchs--which has always proved the destruction of Republics. Mr. THATCHER was in favor of the resolution. Gentlemen seemed opposed to it on the ground of its establishing a precedent for the future. He did not think this objection well founded; for, as the constitution does not absolutely forbid the receiving of presents, the discussion on the propriety of allowing it in future would not be prevented by the present decision. Future Houses could refuse or grant leave to receive these presents. Mr. T. said, it was the natural right of every citizen who served the country as a Minister to receive presents, and the constitution did not absolutely take away the right. He considered the gentleman who now applied to Congress as having a natural right to receive a present, except some reason was shown to the contrary. Gentlemen allow they know of no special reason; they allow the applicant has done the business with which he was entrusted, well. He supposed, therefore, that gentlemen must themselves vote for it, except they abandon their own ground. Mr. R. WILLIAMS hoped, by the vote of this day, the House would get rid of future applications of this kind. When the subject was first introduced, he was opposed to it; but, if the question had gone off without debate to-day, he intended to have voted for it. From the discussion which had taken place, however, he was convinced it was a subject upon which they ought not to legislate, since the acting upon it would produce greater evils than the constitution had provided against. He believed they ought here to put a stop to the business. If not, he would rather that our Ministers should be at liberty to receive all the presents offered to them, than the thing should stand upon its present footing. Mr. BAYARD would tell the gentleman from Tennessee on what authority he informed the committee that the presents in question consisted of what he had mentioned. Being upon the committee to whom this subject was referred, he made some inquiry as to what were the usual presents from the European Courts, and found, that in Holland, it was customary to give a gold chain and medal; in France, a gold snuff-box; and in Spain, a picture. It was on this ground that he said these things were of no consequence. Mr. B. then remarked, upon what had fallen from Mr. R. WILLIAMS with respect to the expense incurred in discussing this subject, and said it had been owing to gentlemen opposing the resolution that so long a discussion had taken place. As to the law which that gentleman proposed to introduce, he must see that the constitution would not admit of such a law. Mr. RUTLEDGE said, that, being closely connected in the bonds of friendship with his colleague, who made the present application, he did not intend to have said a word upon the subject; but, when he heard things of a personal nature introduced into the debate, he could not avoid rising. And, with due submission to the chair, he must say, that every thing of a personal nature, introduced on this occasion, was, in his opinion, wholly out of order; particularly when it was said by a member, "If the gentleman from South Carolina is not satisfied with what he has received for his services, I am willing to pay him more." The constitution has said, that the customary presents from European Courts shall not be received without the consent of Congress; and, accordingly, when these presents were offered his colleague at the two Courts at which he was Minister, he declined receiving them, saying, that he would lay the matter before Congress on his return home. He had done so, and he could not see any ground of alarm in this. He felt none of that Republican jealousy which caused his mind to revolt at these civilities. He rose to dissipate, if possible, those ideas of danger which seemed to be apprehended from the adoption of the present resolution--the apprehension that it would break down the barriers which were to keep out corruption from our Government, and introduce a variety of evils. Mr. GALLATIN said this question might be considered either as of a personal, or of a general nature. He had heard gentlemen, arguing both in support of and against the resolution, speak of the important services rendered by the gentleman from South Carolina in having accomplished the treaty with Spain. Nor did he conceive this to be out of order. He believed, however, the gentleman himself was perfectly indifferent as to the fate of the question. Mr. G. had some doubt with respect to the construction of the constitution on this point. If he was well acquainted with the fact relative to this business, it stood in this way: When Mr. Pinckney was sent as Envoy Extraordinary to Spain, he still remained Minister Plenipotentiary at the Court of Great Britain; therefore he was altogether precluded from accepting of the present offered to him by the Spanish Government on his taking leave from that Court; but, with respect to the present offered to him by Great Britain, it appeared to him that the moment a Minister receives his letters of recall, and has taken his leave, he is no longer an officer of the government; and, in such case, both under the present constitution, and under the old Confederation, presents have been received. So far, therefore, as relates to Great Britain, he did not think it was necessary to apply to Congress for their consent. He had said, that after a Minister has received his letters of recall, there was nothing to prevent him from accepting of a present. He might be told the constitution is lame in that respect; but it was more so with respect to private citizens, because any private citizen might receive either presents or titles from a foreign power. It has not, therefore, effectually shut out corruption. Officers may receive presents by consent of Congress; but any officer, or member of Congress, might accept of presents, either in secrecy, or wait till they are out of office and receive them publicly. Nothing could prevent this but the infamy that would attach to such an act. Therefore, so far as it was contended that a disagreement to this resolution would shut out a source of corruption, it had little effect upon his mind. But there was another point of view on this subject, which would induce him to give his vote against the resolution. He considered that if Congress gave its assent to this proposition, it would be saying that they approve of the act, and that it is in itself proper that a foreign Minister should receive presents. If it was, in their opinion, proper to accept of these presents, the resolution would be affirmed; but if they were of opinion, that the practice is a bad one; that it is useless in itself, and ought to cease, they had nothing to do but refuse to authorize it. He owned it was proper to keep up civilities, when it could be done by conforming to custom of an inoffensive nature; but when the constitution stood in the way, it ought always to be respected. The question on the resolution was put, and negatived--44 to 38. The committee then rose and reported their disagreement to the resolution of the Senate; when the question was taken on concurring with the Committee of the Whole in their disagreement, and decided in the affirmative--yeas 49, nays 37, as follows: YEAS.--George Baer, jun., David Bard, Bailey Bartlett, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Stephen Bullock, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, Thomas T. Davis, John Dawson, John Dennis, George Dent, Lucas Elmendorph, Thomas Evans, William Findlay, John Fowler, Albert Gallatin, James Gillespie, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, Walter Jones, Matthew Locke, Matthew Lyon, James Machir, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, Josiah Parker, James Schureman, Thompson J. Skinner, William Smith, Richard Sprigg, jun., Richard Stanford, Thomas Sumter, Thomas Tillinghast, Abram Trigg, John Trigg, Phillip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. NAYS.--John Allen, Abraham Baldwin, James A. Bayard, David Brooks, John Chapman, Samuel W. Dana, William Edmond, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, William Hindman, David Holmes, Hezekiah L. Hosmer, James H. Imlay, Samuel Lyman, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, John Rutledge, jun., Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Samuel Smith, George Thatcher, Richard Thomas, Mark Thompson, John E. Van Allen, Peleg Wadsworth, and John Williams. SATURDAY, May 5. _Additional Revenue._ On motion of Mr. HARPER, the House went into a Committee of the Whole on the report of the Committee of Ways and Means, Mr. DENT in the chair, when the three following resolutions being read, viz: _Resolved_, That it will be expedient to raise an additional revenue of ---- dollars annually, by a direct tax. _Resolved_, That the said tax ought to be laid by uniform assessment, on lands, houses, and slaves. _Resolved_, That the apportionment of the said tax ought to be made among the several States according to their respective number of inhabitants, as ascertained by the last census. Mr. HARPER moved to fill the blank in the first resolution with two millions. The question was put and carried--47 to 25. The resolution was then agreed to as amended, as was also the second. The third resolution being under consideration, Mr. DAYTON moved to strike out the words "last census," as it might be determined when the bill came in whether the number of inhabitants should be ascertained by the last census, or a new one should be taken. Mr. BAYARD said, the words of the constitution were, "within every term of ten years;" so that a greater period than ten years could not be suffered to pass without taking a census, but it might be taken every year if it were necessary. He believed it would be very proper to have a new census taken before the tax was assessed, otherwise from the great increase in the population of some of the States, since the last census was taken, the tax would not be constitutionally collected, since it is directed to be laid according to the number of inhabitants. Mr. HARPER said, he should be glad to see a new census taken at an early period, so as to relieve the States from any inequality which might arise from the variation of population which has taken place since the last census; but he trusted it would not be thought necessary to do this before the proposed tax was assessed. The carrying a law of this kind into effect, let it be done in whatever way may be adopted, would be found a tedious business, and the amount to be produced by it, would have to be anticipated by loans; and if a new census was to be taken before the tax could be assessed, it could not be said, with any kind of certainty, when an effectual revenue was to be raised. He hoped, therefore, when so great an inconvenience would be incurred by delaying the tax until a new census was taken, that, though for one year some of the States would have to pay a little more than was justly their portion, they would consent to do so rather than subject the country to so great an inconvenience as would be experienced by such a delay. Mr. J. WILLIAMS supposed, if the amendment obtained, the tax must be apportioned according to a new census; and, if so, he apprehended the resolution would be disagreed to. Though a new census might be taken within the ten years, he believed that term ought to be nearly expired before a census was renewed. It was true that some of the States are greatly increased in population; but it could not be supposed that States increased in riches in proportion to their increase of inhabitants, as the people who emigrate are mostly persons of little property, who settle upon the back lands. This being the case, he thought it was a wise provision of the constitution which directs that the census shall be taken only once in ten years. If these words were struck out, no tax ought to be laid until the time comes for taking the new census. Mr. BAYARD would not be in favor of striking out these words, if he thought it would prevent the collection of the tax; but it would be necessary, before the tax could be laid, that an assessment of lands, houses, and slaves, should be made, and he could not see why the number of inhabitants could not be ascertained at the same time. Mr. R. WILLIAMS wished to know whether the new census proposed to be taken was to affect the representation as well as the tax? Mr. DAYTON answered in the affirmative. The return of the enumeration of the inhabitants, he said, might be made at the first meeting of the next Congress, by which means the number of Representatives to which each State will then be entitled might be ascertained in time for the succeeding election. If the order was not made at this session for taking a new census, the enumeration could not be returned before the last session of next Congress, which would be too late for the election of the following Congress. Mr. SITGREAVES said, it would be better for the mover of this amendment, and others who wished to have this tax collected, to suffer the resolution to stand as at present, so that the tax might be immediately assessed by law, and provide at the same time for taking a new census, which no one would object to; and, if it could hereafter be shown that the new census could be taken without prolonging the collection of the tax, it might be done; if not, the tax must be laid according to the present census. The best way would be to strike out the resolution altogether, and then make a provision for taking a new census. Mr. DAYTON consented to vary his motion so as to meet the ideas of the gentleman last up, by adding after the word "that," in the first line, "until a new census shall be taken," and to the end of the resolution these words: "and that provision ought to be immediately made by law for taking a census of the inhabitants of the several States, agreeably to the constitution." Mr. GALLATIN believed this amendment consisted of two parts; he therefore called for a division of it. He should vote in favor of the first. The other part he thought perfectly a distinct subject, and not at present under consideration. If a new census was to be directed to be taken, he thought it ought to be done in a separate bill, and not entangled with this subject. The question on the first part of the amendment was put and carried, without a division. On the second, some observations were made, chiefly expressive of a wish to have the provision for a new census separate from the present subject; after which the question was put upon it, and carried, 39 to 29. The committee then rose, and reported the amendments to the resolutions as agreed to; which being confirmed by the House, Mr. D. FOSTER moved to strike out the word "annually" in the first resolution. Mr. GALLATIN was in favor of the motion. It was his intention to have made some general observations on this subject whilst under consideration in the Committee of the Whole; but whilst he was putting down some figures on paper, the question was taken; as they would be equally applicable, he should now make them. They would go to show that this tax was not wanted as a permanent revenue, but solely to meet the present exigencies. He should show that the present revenues of the Union are sufficient to meet the current expenses, and to meet the instalments of deferred and Dutch debt due after the year 1801. The report of the Secretary of the Treasury states that it is probable there will be a deficiency of $1,796,705; but supposing that, from the present situation of the country, our expenses may be greatly increased, and our revenue defalcate, the certainty of a great augmentation in the ordinary expenses by the deferred debt, and the increasing instalments of the foreign debt, the Committee of Ways and Means do not think it safe to contemplate an additional revenue from permanent sources of taxation to a less amount than two millions of dollars. In looking into the statements of the Secretary of the Treasury, it would be found that most of the objects of expense brought forward to show the necessity of a permanent tax are of a temporary nature. He has estimated the expenditures for the year 1798 to be $6,926,460; in order to ascertain what will be the permanent expenditures of the Union after the year 1800, it is necessary in the first place to deduct from the sum those items which are not of a permanent nature; and, as he would add a sum for the Dutch debt due after 1801, Mr. G. said he would also deduct the instalment of $80,030 due for the present year. The first item of a temporary nature was a sum reported for deficiencies in the Military Establishment of $164,000. Every gentleman who had attended to this subject, when it was lately before the House, must be convinced that sufficient sums had been appropriated under this head, and that deficiencies must be considered as extraordinaries not likely again to occur. Second, $103,000 were set down for diplomatic expenses; the permanent establishment was now fixed at $63,000, and $40,000, therefore, were a temporary expense. Finally, the following items were stated by the Secretary himself as temporary, viz: for light-houses, in addition to the usual appropriation, for expenses incident to the treaties with Great Britain and Spain, and for reimbursing the unfunded and registered debts, and for the payment of old accounts, a sum of $546,000. The last item not yet agreed to by this House. These several articles amount to about $830,000, which, deducted from the expense of 1798, as calculated by the Secretary of the Treasury, will leave a balance of about $6,100,000 for the permanent ordinary expenses, civil, military, contingent, and relative to the present debt. To this must be added $1,146,370 for the interest and extinguishing annuity of the deferred debt, payable in 1801, and also the sum necessary to pay the principal of the Dutch debt after that year. The Committee of Ways and Means have reported the foreign debt which will become due in 1802, 1803 and 1804; but, by taking the aggregate of all the years, it will be found that an average sum of $800,000 a year will pay the whole of that debt in twelve years. This last item, the $1,146,000 for the deferred debt, and the $6,100,000 for ordinary expenses, makes the aggregate of $8,046,000 for the permanent expenditures of the Union after the year 1801, including provision for paying the whole of the principal of the foreign six per cent, and deferred debt according to contract. This, in time of peace, would be the extent of our expenses, especially as there are a number of items which might be reduced, and in that calculation no reduction is introduced in the Naval, Military, or Diplomatic Departments, or in the Civil List. If the current revenue be examined, it will be found to exceed this amount. The amount of revenue, as calculated by the Secretary of the Treasury, for the present year, is $8,011,897. But to this must be added the deduction of $549,649, which he has made from the duties on imposts and tonnage, from an apprehension of a defalcation in this part of the revenue, on account of capture, and which was of course to be considered as temporary. To this there should also be added the duty on salt, laid at the last session, which could not make any part of this estimate. That duty was eight cents per bushel, and calculating the quantity of salt imported at three millions of bushels, it will amount to about $250,000. There was also a number of additional duties, laid during the last session of the last Congress, which would not raise less than $350,000, viz: two and-a-half per cent, on all white cotton goods imported, and an additional duty on tea, brown sugar, and molasses. These two sums make $600,000, and added to the above $500,000, deducted this year on account of captures, would make the permanent revenue, in time of peace, equal to $9,111,897, which would exceed our expenses by $1,000,000. This is clear from the papers before the committee. It was suggested that some of his deductions for expenses were improper, or that he might be mistaken in his expectations of revenue on some items, yet this surplus million, which was equal to one-eighth of the whole expenditure, would certainly cover any mistakes of that kind. Besides, there is every reason to believe some of the branches of the revenue will be more productive, on account of the increase of population in 1801, than now. Mr. G., therefore, agreed with the gentleman from Massachusetts (Mr. VARNUM) that the present revenues of the nation are equal to all its expenditures, including therein the redemption of the public debt, except in case of war. The gentleman from Maryland (Mr. SMITH) seemed to be of the same opinion, and, indeed, the Chairman of the Committee of Ways and Means had formerly made a similar declaration. It would, therefore, be improper to vote a permanent tax, when the objects for which it was wanted were not of a permanent nature. Two years ago, Mr. G. said, he was in favor of a permanent land tax, as he then thought it would be wanted to meet the demands which would come against the Government in the year 1801. He was of that opinion, because he did not wish to see the list of indirect taxes swelled beyond what it was; but Congress were of a different opinion, and had, since that time, laid indirect taxes on salt, sugar, stamps, &c., to the amount of $800,000 a year, and have so far diminished the necessity of a direct tax. There was another thing in which he had been agreeably disappointed. The mistake was common to almost every individual, as well as to himself. It was in relation to the amount of duties which would probably arise from imposts and tonnage, and which were productive beyond the most sanguine expectations. The estimates of the Secretary of the Treasury then fell short of the real amount by upwards of a million of dollars, and the same thing had taken place last year. If, however, in the year 1801, a diminution should take place in the product of those duties, the land tax might then be made permanent. Mr. G. concluded by saying the tax of two millions was already agreed to for one year, though he thought it too large a sum. He could see no objection to its being made an annual tax as in Great Britain, as it could not be doubted that if the money was wanted for another year, the act would be annually renewed. Mr. HARPER confessed himself very much alarmed at this motion. He saw in it, and in the arguments of the gentleman from Pennsylvania in support of it, the second leaf of the book for keeping this country in an utterly defenceless state--and another attempt made to render those measures which had been taken nugatory, by effectually tying our hands; and therefore it was that he saw this motion made with grief and astonishment, by his friend from Massachusetts, whose motives he could not suspect. The gentleman from Pennsylvania, said Mr. H., reasons as if we were in a state of profound peace, and as if we had nothing to apprehend from abroad; as if all our disputes were settled, and we had nothing to do but pay the expense of the preparations of defence gone into, and then at all future times we should rest in security. This was the basis of his speech, and he could not entertain so low an opinion of his understanding as to believe he thought it a good one. That gentleman must know, every one must know, that this country is not in a settled state of things, but that we are threatened, and speedily, with a war. No longer ago than yesterday the House was informed that our Ministers had presented their final memorial, and that if they did not soon receive an answer to it, they should give up their mission and return home. Far from desisting from her attacks upon our commerce, France goes on increasing them. Her former violations of right have been greatly increased. They had been told by the papers on the table of the subjugation of our country, of the fate of Venice and of Hamburgh. She talks of sending frigates against us, of ravaging our coasts; she has spoken of internal divisions, of a party in this country on which she can rely. We had heard, though not officially, that orders had been issued for taking all our vessels, and executing our citizens as pirates, yet gentlemen sit down with counting-house exactness to calculate the amount which it will take to defend ourselves. This was, however, perfectly consistent with the rest of the conduct of the gentleman from Pennsylvania, because he has constantly set his face against every measure of effectual defence, though he has constantly talked of being willing to concur in what he considered measures of defence. But will the House thus be acted upon? He trusted not. He could not relinquish the pleasing persuasion that a majority of this House is determined to defend this country against a foreign foe, that they are desirous of protecting their property, their wives, and their children, and that they will rend from their eyes the veil which the gentleman from Pennsylvania has endeavored to cast over them. That they will defend themselves against a foe who relies upon our weakness, upon our calculations of avarice, upon the exertions of men among us who are to paralyze all our efforts to defend ourselves, and upon a prostrate colonial spirit in this country. The existence of this spirit would be confirmed were the present motion adopted. Why? Because the complete defence of the country is not to be effected by two millions of dollars. Mr. H. recapitulated what had been done by way of defence; but said these amounted to nothing, they were only measures of precaution a commencement of defence, and if those events take place which all think probable, a much larger sum of money will be wanted. Mr. H. said it would be seen, by the report of the Committee of Ways and Means, that they did not take into view the expense which might be incurred for the military defence of the country, either by a provisional army, or by detachments of militia. And would any one say that it would be proper to rise without providing a military defence for the country? Or could they say that no part of the 80,000 militia, ordered to be held in readiness, would not be called into service? Or would it be proper to sit down, satisfied that our enemy will not invade us, though they see we are not prepared to meet them? He hoped not. Mr. OTIS wished to inquire of his colleague, before he proceeded to make any observations, whether he would consent to withdraw his motion, and admit of another in its place; but as he did not see him in his place, he would state what his proposition was. He supposed it was the object of his colleague to prevent the tax from being permanent. He knew that gentleman too well to believe he wished to render the tax futile. He proposed, therefore, instead of this amendment, to retain the word "annually," and to add "until all loans that may be authorized by law on the credit of such tax be reimbursed." Soon after the late despatches from our Ministers were read to this House, and the common sense of the community was convinced of the necessity there was for immediately going into measures of defence, speaking of the agreeable unanimity which seemed to prevail in the House, it was prophesied to him, by men who had been much longer in this body than himself, that, notwithstanding all this appearance, yet certain gentlemen in the House would take care so to embarrass the detail of the business, that they might just as well have refused to assent to the principle. [Mr. DANA hoped these remarks were not meant to apply to the mover of the present proposition.] Mr. O. said he felt some difficulty in speaking on this subject, from the motion coming from the quarter whence it came; but he trusted his friend would not apply these remarks to himself. [Mr. VENABLE hoped the gentleman did not mean to insinuate that any gentleman was actuated by improper motives. The SPEAKER said it was improper to speak of motives.] Mr. O. added, that his object was to show that the opposition made to this tax would have nearly the same effect as voting against it in the first instance; for he doubted whether a shilling could be got upon it, if passed in this way. Perhaps many wish that this should be the case; they may think the money is not wanted. If there was any wisdom in thus acting, he could not see it, and therefore could not give gentlemen that credit for their actions which they may think they deserve. Mr. O. expressed his astonishment that gentlemen who were two or three years ago in favor of a land tax, should now be wholly opposed to it. He also added that he had heard another prophecy, which was that many gentlemen who were always averse to a land tax would not now agree to it, but attempt to defeat it, however willing they were to go into measures of defence for the country, when those measures were unconnected with the raising of money. He hoped this would not come true. Mr. R. WILLIAMS observed, it was a fortunate circumstance that the present motion was made by the gentleman from Massachusetts, though, even that circumstance could not secure gentlemen from abuse; for though his friends cannot but allow the mover's motives are pure, yet they have imputed the worst views to those who support it. The gentleman from South Carolina (Mr. HARPER) has, as is usual with him, consumed one-half of his speech in censuring the conduct of members of this House, because they do not agree with him in opinion as to what is the proper defence of this country, and in recounting what France has done in Europe. As to what that gentleman had said with respect to motives, he believed every gentleman had a right to deliver his sentiments freely, without being subject to the lash of that gentleman, or any other. How could it be fairly argued, because gentlemen desired to limit the duration of this law, that they were unwilling to defend their country? No such conclusion could be drawn. He believed the people of this country would always be found ready to defend themselves, as far as their own interests and the interests of the country required; but not to defend other nations. The gentleman from South Carolina never spoke on the subject of defence, but he went into Europe, to tell the House what was going on there. He thought enough had been said on this subject. The gentleman had talked much of national honor and national dignity; but he wished him to recollect that national honor and national dignity were national interest. But the dignity and honor, which were too often spoken of, were mere phantoms; and what is looked upon as disgraceful in one country, may be looked upon as honorable in another. But the dignity and honor which he spoke of were the same in all countries; they were the interest of the people. He believed that some gentlemen would even account it honorable to go into Europe, and endeavor to raise up all the crowned heads which had fallen in the course of the present war. He liked no such honor. The gentleman from South Carolina has not only to-day, but often, reprobated the idea of introducing calculation into our debates when measures of defence have been under consideration; whereas it appeared to himself the true ground upon which they ought to act. He believed, if nations in general were to sit down and count the cost before they went to war, one-half the blood and treasure which are now caused to flow, would in such case be spared. Wherever a nation was about to enter into a war to support its rights without its jurisdiction, it was perfectly right to sit down and calculate the expense of doing it; he agreed, when a country was attacked upon its own territory, that was not the time to talk about expense. It appeared to him, in such a situation, our defence would not so much consist of money as of individual exertion. In his opinion, free men fought for liberty, and slaves for money. The House was told, that if this money was not wanted, it would be safe in the Treasury, or applied to the reduction of the public debt; but he believed it would not be in the power of the gentleman from South Carolina to convince him, or the people of this country, that the money will not remain as safe in the pockets of the people, until it is wanted, as in the Treasury. He believed the willingness of the people to give the money when it is wanted cannot be questioned; and if that gentleman had all the reliance upon the people which he pretends to have, he would not wish to take their money when he was not certain it would be wanted. As to our late despatches, containing the conversations of X, Y, and Z, which gentlemen seemed so much to rely upon, he confessed his opinions had not been at all changed by them. He believed, before they were communicated, that this country had been greatly injured by France, and he was not ready to take any step now that he was not ready to take before. He believed that he, and others who voted with him, should be as willing to defend the country, in case of danger, as those gentlemen who are continually raising up military phantoms for the purpose of knocking them down again. He hoped the amendment would be agreed to. A motion was made and carried to adjourn, without the question being taken. MONDAY, May 7. _Presents to Ministers._ Mr. PINCKNEY said, he rose to request leave to withdraw the resolution which had yesterday been laid upon the table by his colleague, Mr. HARPER, without his knowledge, respecting a business which had already been decided relative to himself, as it was founded upon a ground which was at least doubtful, and he thought out of order. The SPEAKER interrupted Mr. P. to say that he would save him the trouble of any farther observations, by saying that he deemed the motion out of order. Mr. PINCKNEY hoped, notwithstanding, he should be permitted to make a few remarks on the subject. The SPEAKER replied, that any remarks upon a business already decided would not be in order, and could not be admitted without general consent. A pretty general cry of "I hope the gentleman will be permitted to proceed," being heard, Mr. PINCKNEY went on. He said, it was with reluctance he took up the time of the House a moment in a matter relating to himself, particularly at present, when so much important business pressed for consideration; but he wished to state his reasons for wishing this motion to be withdrawn, lest it should seem to have been brought forward by his consent. He was grateful for the good intentions of his colleague, because he doubtless thought the vote which had passed on the preceding day might cast some imputation upon his, Mr. P.'s, character. But he also wished it to be withdrawn, because it was founded on at least a doubtful suggestion, viz: that it is not customary for the United States to make presents to foreign Ministers leaving this country. He believed it was customary to do so. But another reason for wishing it to be withdrawn was, that the discussion of it might not subject him to a species of trial as to his public conduct, in which he should not be at liberty to make his defence. He should never shrink from any authorized investigation of his conduct; but he should wish to avoid any unauthorized proceeding of that kind. But his principal reason for troubling the House was to assign his reasons for addressing a letter to Congress on this subject, apparently of so trifling a nature. With respect to the present offered to him by the Court of Spain, it would have been improper for him, under any construction of the constitution, to have received it, as he was at that time also Minister to Great Britain. Upon this ground it was that he wrote to the Spanish Minister declining the acceptance of the present offered to him from that Court, except he should obtain leave of Congress to do so. This being the case, whatever might have been the propriety of accepting of the present offered to him by the Court of Great Britain, there would have been at least an appearance of inconsistency to have received a present from one Court and not from the other. He therefore gave the same answer to both. This he hoped would account satisfactorily for having troubled Congress with any application on this subject. It was from a respect which he thought due to the Court of Spain, from the favorable treatment he had received from them, and being fully satisfied with all their conduct towards him, that he thought it proper to make the application. The other, respecting Great Britain, was involved with it. Mr. P. said, he did apprehend there would have been a propriety in this House, at the time they rejected the resolution sent from the Senate, to have assigned a reason why they did so. He would say why he thought so. He thought the constitution expressly allows, that, in some cases, presents may be received from a foreign power, but that the power of deciding upon this shall be left in the hands of the Legislature, as a check upon officers that they may not improperly receive any presents from a foreign power. But, considering this power to have been intended as a check upon the improper conduct of officers, it must strike the minds of the public when they are told that an officer was refused this privilege, that he had not done his duty, especially if the refusal was unqualified, and unaccompanied with any reason for the refusal, and that the refusal was intended as a censure upon his conduct. It was in this point of view, that he conceived the conduct of the person to whom this privilege was refused, was implicated, without an opportunity of being heard in his defence. He should be far from wishing any resolution to be entered into approving of his conduct; but there was a great distinction between approving and disapproving; between censure and applause; and although he did not desire applause, he could have wished to have avoided censure. All that he wished had been done was, that the House should have stated something of this kind, "deeming it improper that the diplomatic agents of the United States should receive a present from any foreign Prince or State, the request cannot be complied with;" as, without this, the natural inference must be, that there has been some misbehavior in the officer, or the usual privilege would not have been refused. He called it usual, because whenever it had heretofore been applied for, it had been invariably granted, and the rejection of the resolution from the Senate, must, therefore, be looked upon as establishing an imputation upon his character. It was saying to the world, "Every other person in a similar situation, has been permitted to accept of these presents, but you, and you alone are an exception; you cannot receive them." Such a person may have been worthy of condemnation; he may have betrayed the interest of his country; but it was injustice to that person to condemn him without a trial. Mr. P. said, he thought it necessary, in justice to himself, to make these observations before the House, from a regard which he felt, in common with other gentlemen, for his reputation--more particularly as this matter would appear upon the journals of the House, and might not only reflect upon himself, but upon his children after him; they might be pointed at by the finger of scorn, as the offspring of a man who had betrayed the interests of his country. It was under the impression of these ideas that he had been led to trouble the House, and he trusted he should stand excused for having done so. Mr. MCDOWELL rose, but was prevented from speaking by the SPEAKER, who declared that nothing more could be admitted on a subject which was not before the House. Mr. HARPER rose. He was also checked by the SPEAKER, but not before he had declared he brought forward the motion in question without the knowledge of his colleague. _Additional Revenue._ The House then proceeded to the order of the day, when the SPEAKER having stated the question to be to strike out the word _annually_ in the first resolution, Mr. D. FOSTER rose, and observed that, for a justification of himself to those who knew him, he need not declare that the motion, which had caused so much agitation, was made with good intentions; that it was not designed to embarrass the measures of Government, or with a view to prevent a provision of revenue adequate to the present or probable future exigencies; or from any reluctance on his part to concur in every measure requisite for an effectual defence of our country. To the uniform tenor of his conduct, on all occasions, since he had the honor of a seat in this House, he would cheerfully appeal. Those with whom he associated knew that nothing was more dear to his heart than the honor, the dignity, the liberty, and the independence of his country. He did not, therefore, consider many of the remarks which had been made on this subject, as applicable to himself, nor should he take any measures whatever to repel them. If his friends intended he should make a personal application, their object was lost. Alike indifferent to censure as applause, when unmerited, he had ever done, and, as far as he could be informed, he would continue to do, what, at the time, appeared to be his duty. He was as deeply impressed as any gentleman of this House could be, with a sense of the necessity and importance of sufficient and productive sources of revenue. Measures for defence must be expensive; without the means to carry them into effect, all our acts and resolutions are vain and futile. Protection to our commerce, defence to our frontiers and sea-coasts, security to our rights as a nation, energy and respectability to the operations of Government, are not to be obtained without money, and if the present revenues are not sufficient, more must undoubtedly be provided. Although he did not mean to pledge himself that he would vote for it, he should be glad to see a bill before the House, that opportunity might be given to examine the subject in detail. Since the motion he had submitted had been thought so exceptionable, he was willing for the present to modify it. If gentlemen would concur with him in a substitute, he would withdraw the motion to strike out the word "annually," and propose to add, as an amendment at the end of the resolution, the following words: "To be collected for a term not exceeding -- years; provided the Legislature of the United States shall at all times be at full liberty to substitute other duties or taxes of equal value in lieu thereof, for the purpose of discharging any debts or loans which may be contracted on the credit of said tax." Mr. HARPER rose to second the motion, because it concurred with his ideas on the subject, that the revenues ought to be commensurate with the debts incurred. He need not repeat, he said, that he had always been opposed to a land tax, except in the case of a war, or of preparation for war; but he now believed it necessary. Mr. MACON hoped this motion would not prevail. In the State from which he came, they had an annual land tax, and found no inconvenience from its being annual. He had no idea of a permanent tax on land, as all the State Governments collected their revenues from this source, or from a capitation tax, every other object having been seized upon by the United States. The idea of the tax being laid for a number of years, would make it more unpopular than any thing else. All our revenue laws are temporary. But it was said it was necessary that this tax should be permanent, in order to obtain loans upon it. He believed loans might very well be obtained upon it, though it were passed annually; for certainly those who loaned the Government money would have so much confidence in it as to believe that it would pay all its contracts fairly and honorably. He did not believe that all the money appropriated could be expended before the next session of Congress. Besides, there is a surplus million in the Treasury, ready for any purpose which the Executive may think proper to apply it to. But it had been said, advantage ought to be taken of the present moment to get this tax. The same thing was said with respect to the Navy. He did not think it necessary to take advantage of the present enthusiasm of the people to collect a tax; the people would always obey the laws. Mr. FINDLAY said, it was admitted, on all hands, that it depended on a contingency whether this tax would be wanted at all. For his own part he was under no apprehension of any formidable invasion of this country taking place before Congress meets again. If France is desirous of making conquests, there are more preferable objects to this country nearer home. The difficulties which have so long agitated Europe are not yet so far settled as to suffer France to send out any formidable force here. Let the conduct of the French Government have been as bad as it can be painted, it cannot be said that it has ever wholly lost sight of its own interest, and it would not be her interest to make an invasion of this country at this time; and, therefore, there is no necessity for going into measures as if an invading army was immediately expected amongst us. A land tax was with him a favorite tax. He had long wished it. He was for adopting it some time ago, and for taking advantage of a low market, to bring up the public debt. But when he came to inquire into the subject, he found that many of the States had laid direct taxes for the support of their own Government. There is now an appearance of necessity for this tax; but being a new tax under the General Government, and not likely to be very satisfactory to some parts of the Union, it would be proper to make the law of short duration. Upon constitutional ground he was against continuing a direct tax longer than two years; every Congress ought to pass a vote upon it; but, in the present instance, he believed the law would be best if passed for one year. Mr. F. concluded by observing, that if this law was passed for one year, he could confidently rely on future Congresses to renew it, if the situation of the country should require it. It would not hereafter be convenient for him to take any farther share in the public councils, but he should not distrust the wisdom and patriotism of those who might follow him; and to do away the charges continually made against himself and others, that they were not willing to defend the country, he should call the yeas and nays upon every question of defence which came before the House. Mr. S. SMITH did not like the amendment; but he should vote for it, because, if he could not get all he wished, he would get all he could. If the blank was to be filled with two or three years, (as had been intimated,) it would not go far enough to induce moneyed men to rely upon it as a permanent security. There seemed to be no difference of opinion as to the propriety of laying a direct tax; it only seemed to be as to the length of time which it ought to be laid. He agreed with those gentlemen who assert that money cannot be borrowed, except a permanent fund be provided. But gentlemen say, where are your expenses? Certain expenses have been agreed to, which are proposed to be met by a direct tax of two millions; but could it be supposed that the proceeds of this tax could be brought into the Treasury in less than eighteen months? They could not, and something must be done in the mean time to raise the money already voted, whether any war takes place or not. How was this to be done? By loans alone. But what inducement will there be to moneyed men to lend money, except a permanent revenue be made the security? You hold out the credit of the United States, which has not heretofore been injured. This is true. But heretofore we have not been engaged in war; we have had nothing to impede our revenue. But if a war takes place, it is possible our revenue may suffer very materially; and Congress are about to provide a fund which, in the opinion of some, will leave no permanency, and in the opinion of others, very little. And would it not require a great degree of patriotism in gentlemen to lend twenty shillings for twenty shillings, when they can go into the market and purchase them with sixteen. The difference of opinion on this subject, he was convinced, arose from the different pursuits of the members of that House. Certain gentlemen believed moneyed men would advance money without a permanent tax as a security. He believed the contrary; for, however great a confidence they may have in the honor of future Congresses, they would wish to see this Congress do something for their security. He feared gentlemen were not in earnest when they spoke of defending the country. We have men, said he, but we want money. He did not agree with the gentleman from North Carolina (Mr. WILLIAMS) that slaves fought for money, and freemen only for liberty. If he commanded a regiment of militia, he believed they would expect to be paid, and he could not believe he would term them slaves. Money must be had. The gentleman from Pennsylvania was afraid of making the revenue permanent, because, as our revenue increased, it had been usual, not to repeal our revenue laws, but to increase our expenses. Whence did he collect this information? Not from the documents on the table; for there he would find that there was an unexpended surplus of one million nine hundred thousand dollars, which were in 1797 applied by the Commissioners of the Sinking Fund to the reduction of the public debt. We have, said he, gone on decreasing our expenses. It was true, that our dispute with Algiers, and a war with the Indians, had cost a great deal of money; but when the war with the latter was at an end our expenses were decreased. And now an income of expense is asked for to repel threatened danger, and gentlemen have voted measures of defence; but now they come to touch the expense, they flinch. Men may moralize and talk about defence as much as they please, it will avail nothing without money. Mr. VARNUM hoped the motion under consideration would be negatived. The gentleman from Maryland (Mr. S. SMITH) gave two reasons on Saturday against striking out the word annually. One was, that it was necessary the tax should have some permanency, in order that money might be borrowed upon it; and another, that it might be a substitute for indirect taxes. That gentleman allowed, and he perfectly agreed with him in opinion, that in case of war, the defalcation in our revenue, he did not suppose, would be large, and that in our present situation he had no idea of a defalcation. If, then, a defalcation of our revenue was not to be expected, he thought he should be able to make it appear that the proposed tax is not necessary at all; and, of course, that it will not be right to pass it for more than one year. But the gentleman from Maryland says the people ought to be relieved from indirect taxes, because, for every 12-1/2 per cent. duty, the consumer pays 27-1/2. Does that gentleman wish, then, that the merchant should be deprived of a profit of 15 per cent. on the duties which he now pays? If so, this might be very well effected, without doing away the duty, and substituting a land tax in its place, by the merchants lowering the price of their goods 15 per cent. But the gentleman added another reason for passing the law for a number of years, viz: that this tax might be at any time repealed. But, although this House might consent to a repeal of this tax, it was by no means certain that the other House would consent to its repeal. Indeed, it was his opinion, that if this tax was established as a permanent tax, that the people of this country would not be relieved from it for many years. Many objects, he had no doubt, would be found out by gentlemen, ever fruitful in this respect, upon which to expend any surplus which might arise from this tax. The gentleman from South Carolina, on Saturday, brought into view our situation with respect to France, and our liableness to an attack from that nation. He alluded to the conversation which took place between our Envoys and X, Y, and Z, and thence inferred that it was probable that this country would be attacked by France. He could not say that all the propositions made by these unauthorized persons were not from the Directory; but there was no evidence of this, and therefore he could not believe it, especially as the agents themselves declared they were not. He thought, therefore, if we wished to preserve peace with France, that we ought not to be too forward in believing all which was said by X, Y, and Z, was authorized by the French Government. He hoped it would prove to be the contrary, and that when the Directory shall discover what has been done, they will punish these persons for their conduct. The question was put and negatived--46 to 35. Mr. D. FOSTER then renewed his motion to strike out the word "annually," which was carried, there being sixty votes for it. The question on the amendment providing for the taking of a new census, was put and carried, there being 57 votes for it. Mr. READ moved an amendment, which went to strike out the provision which proposes that the tax should be laid by a uniform rule through all the States, with the view of inserting in its place the following words: "And upon such other estates within each particular State as are taxable according to the established rule of direct taxation in each State." The motion was negatived, there being only twenty-one votes for it. The report was referred to the Committee of Ways and Means, to report bills accordingly. TUESDAY, May 8. _Naturalization Law._ Mr. SEWALL called for the order of the day on the third resolution reported from the Committee of the Whole, on the subject of aliens, and the consideration of the following amendment being resumed, viz to add to it these words: "Between which and the United States, there shall exist a state of declared war:" It was agreed to; and referred to the select committee on commerce and defence, to report a bill accordingly. The following is the resolution as amended by the House: "_Resolved_, That provision be made, by law, for the apprehending, securing or removing, as the case may require, of all aliens, being males, of the age of fourteen years and upwards, who shall continue to reside, or shall arrive within the United States, being natives, citizens, or subjects, of any country between which and the United States there shall exist a state of declared war, or the Government of which shall threaten, attempt, or perpetrate, any invasion or predatory incursions upon their territory, as soon as may be, after the PRESIDENT OF THE UNITED STATES shall make proclamation of such event; providing, in all cases where such aliens are not chargeable with actual hostility, that the period settled by any treaty with such hostile nation, or other reasonable period, according to the usage of nations, and the duties of humanity, shall be allowed, for the departure of such aliens, with all their effects, from the territory of the United States; and excepting all cases of such aliens to whom passports or licenses of residence may be granted, consistently with the public safety." THURSDAY, May 10. _Provisional Army._ GENERAL SUMTER'S VINDICATION OF THE SOUTH CAROLINA MILITIA. This favorite scheme of raising a standing army must be pushed forward by every aid of fact and fiction, and that its success may be insured, the Southern members are to be terrified into its adoption, for we are told that the Southern States have much to fear, that there is every reason to believe the Southern States will be speedily invaded by a merciless and vindictive foe from the West Indies. That at this moment thousands may be disgorging on our shores; that they are prepared to strike. And the gentleman from South Carolina (Mr. HARPER, one of his colleagues) has, in the height of his zeal for American defence, or his fears for the safety of the Southern States, or from some other cause, which he did not pretend to divine, by his nice and minute delineations of the condition of the Southern States, shown to the House a terrifying picture of Southern imbecility, and had also published to this cruel, malicious, and insidious enemy, (as he terms them,) an enemy sufficiently penetrating without his aid, every point, every avenue, every position, most advantageous for them to take in attack; he has exposed our most vulnerable parts to their inveteracy, and our wealthiest part to their rapacity. The policy or prudence which dictated the detail, he did not stop to examine, but went on to ask, supposing these marauders were disposed to invade the Southern States, whether it would not be allowed that they were too fully and completely occupied nearer home, to be at liberty to execute at this time their intentions of such an invasion? For his part he thought such was their condition, and expected it would continue to be so for some time to come; but, admitting that it is possible for the man who has been mentioned, to invade our coast with the three or four thousand men spoken of, the consequences predicted are not likely to follow. The reasoning of his colleague being admitted, perhaps his conclusions might also; but the former not being just, the latter could not result. He was aware that the number of inhabitants of the lower country, of the States of Georgia, South Carolina, and North Carolina, as stated by his colleague, was not very great; but he did not consent to the deduction which the gentleman had made, that, therefore, the lower country was very weak in point of force to oppose an invasion. And here he deemed it proper to notice the attempt which had been made to draw invidious distinctions between the militia force of our country and what are termed regulars--attempts constantly made by the advocates of standing armies, not only on this occasion, but on many others--not only on this floor, but in the other branch of the Legislature, and very lately, in a pointed manner, by his colleague, (Mr. HARPER,) who pressed the establishment of a standing army by depressing the manly character of his fellow-citizens: he (Mr. HARPER) had said he was well acquainted with the Southern States; that the inhabitants on the seaboard are few, that for fifty or sixty miles they are still fewer, that the strong population is quite remote, that the whole in general are badly armed, many altogether without arms; that they are not well organized, and even if they were, they are not to be depended upon, unless headed and aided by regular troops; in short, that no good can be expected from the militia, unless they are supported by regulars. It is an unpleasant thing, said Mr. S., for me to have to make any remarks on a subject of this sort; but so frequently have gentlemen made invidious distinctions between the courage and efficacy of militia and regulars, and with so much injustice to the former, that I cannot permit their assertions any longer to pass without notice. For doing this, I do not mean to derogate from the merit of the late American regular army, nor more particularly from that part of it which served to the Southward, of whose condition I can better judge than of that which served in the Middle and Eastern districts; as to them I am bold to say, they were not inferior, under all circumstances, to any army of equal numbers and equal opportunities which I have heard or read of in any time or in any place; but, then, it must also be remembered, whatever gentlemen may here say to the contrary, that the militia were as serviceable and as successful as any regulars whatever. He said he would take a cursory review of the services of the militia in one of the Southern States, which would tend to support his last declaration. He would quote only a few cases out of a great number where the militia had acted alone, without any co-operation or support from the regulars, and that against the veteran and conquering cavalry and infantry of British corps, and in which actions they were distinguished for their bravery and success. It may be remembered that very partial, if any, impressions had ever been made by our regular troops on the British corps of cavalry during the early period of war; and it seemed to be reserved to the Southern militia to convince them that their equals existed in our country. It is not to be attributed to the want of courage or discipline in our regular corps that this had not been done before, but to imperious circumstances which no skill could overcome; but this did not change the fact. After the fall of Charleston in 1780, the first action, and that fought by the militia, without any aid from our regulars, was the action of Fishing Creek, where, without entering into a minute description of all the circumstances attendant on such an occasion, it will be sufficient to say, that the gallant Captain Rooke, who commanded a squadron of Tarleton's legion, fell, and the whole force was beaten and dispersed. A few days after--and here permit me, said Mr. S., to remark, that if my colleague does not remember, and our historians have neglected to record the achievements of the militia, yet justice is in some degree done them by a British historian, who was an officer in the British service in that part of our country, and at the very time I am speaking of, who corroborates my facts--a few days after an attack was made by the militia on Rocky Mount, and Colonel Turnbull, who commanded the enemy's force, and who is now in New York, I have no doubt has candor enough to acknowledge, that from the contest he had with them, (although strongly defended by well constructed works,) and which lasted ten hours, there is something due to their bravery and the effect of their arms. Eight days after the affair on Rocky Mount, an attack was made on the British at their posts of the Hanging Rock. The force on this occasion consisted of the same corps of South Carolina militia who had enterprised on the other occasion; they were in number about 600; they had been joined by a few of the militia from North Carolina, and it is a pleasure to reflect on the cordiality and bravery displayed by them on this occasion. The enemy's force at this post was 1,200 effectives; yet the result was, after an action which lasted through the greatest part of the day, that Major Bryan's corps was totally defeated, the Prince of Wales' regiment exterminated, even its name has never since been recorded. Other detachments from the 63d and 71st, under the command of Major Camden, were also cut up, driven from their encampment with the entire loss of baggage, &c.; and, in the course of this action, Captain Kinlaw, with a squadron of Tarleton's legion, arrived from Rocky Mount, made a desperate charge on the militia, was repulsed by them, and fled to Camden, without attempting to renew the combat. In this, as well as other actions, it ought to be remembered how many field officers, brave captains, and other officers, as well as valuable citizens, fell, or were wounded, while another nation had to regret in this action alone the loss of upwards of 800 men. Passing by a number of important and considerable conflicts which took place between the British regulars and the Southern militia, still unsupported by regulars of our own army, said Mr. S., I come now to mention the attack which was made in the neighborhood of Winnesborough, while Lord Cornwallis laid in that town, upon the South Carolina militia, by a British regular force under Majors Wymes and McCarthy, supported by two troops of cavalry, the whole corps drawn together and formed for the purpose; after various charges made by the infantry and cavalry, and after repeated repulses, the enemy was totally repelled, their commanding officer wounded and taken, together with a number of his corps, and the rest were dispersed. On the return of Colonel Tarleton to Winnesborough another effort was made, and from the number as well as the nature of the troops employed, it was certainly intended to be effectual in driving the South Carolina militia from that part of the country; for it was Tarleton's legion, McCarthy's corps, and that part of the 63d, under Major Money, which troops were led to the attack of the militia on the 20th of November; the result of this action is known to those who do not wish to detract from the merit of the militia. The enemy's detachment consisted of 270 legionary horse, and upwards of 400 regular infantry, with two field-pieces; the militia were between five and six hundred, without (as indeed they were through all the actions I have described) a single piece of artillery. In the number of militia are included some Georgians, who not only acquired honor to themselves from their exertions on that day, but did honor to their country. The fate of the British cavalry was then decided; they had been formerly unconquerable, but after that day they were never known to be brought to act with either energy or effect. Knowing the ardor and firmness of the Southern militia, and not doubting but the militia of the several States in the Union possess equal motives for their exertions, equal spirit and activity, I cannot, said Mr. S., but rely on them as the natural and main support of our national independence--a support fully effectual without a recurrence to a standing army. These few cases, and it is stopping very short indeed of what the merits of the Southern militia deserve, tend to show that the charges brought against the militia generally are as unfounded as they are cruel to their feelings; while, at the same time, they demonstrate, that if an invasion (which is a contingency by no means likely to happen) should actually take place, we may rely with confidence on the manly exertions of the militia to meet the attack, and to resist every effort, at least for such a period as until more effective aid shall be drawn down to their support, and more permanent measures adopted. The question for striking out twenty thousand to insert five thousand, was put and negatived--47 to 41. The question now returned upon striking out twenty thousand to insert ten thousand. Mr. N. SMITH hoped this amendment would not be agreed to. It was contemplated, when this reduction was proposed, that the power should be given to the PRESIDENT for three years; but it was now restricted to the recess of Congress. He did not himself think that at present there was any danger of an invasion, nor did he believe that imminent danger of an invasion would exist, whilst the war continued between France and England; but, whenever a peace shall take place between those two powers, the question ought then to be taken whether this country ought not immediately to go into preparations for war; and if Congress were not in session at the time, the PRESIDENT ought to have the power of determining this question. It will depend on several circumstances; on what kind of peace was made; upon what ground parties stood when peace was made; on the situation of France at the time; on what kind of men are in power; on the situation of this country; on what is the state of parties here at the time; what is the number of those who are opposed to the Government; how many there are of those who wish to lull the rest to sleep; and what is the amount of spies in the country. All these will be important considerations to be decided at the time, and if it shall then appear that imminent danger does exist, will twenty thousand men be too large a number to raise? He believed not. The question for striking out twenty thousand, and inserting ten thousand, was put and carried, 54 votes being in favor of it. The question next came up on agreeing to the section proposed by the select committee, for authorizing the PRESIDENT, from time to time, as he shall deem it necessary, to call forth in rotation such portion, not exceeding at any one time the number of twenty thousand men, of the detachments of the United States, authorized by the act of the 24th of June last, as may be conveniently mustered together, and cause them to be trained and disciplined by their proper officers, either in their respective States, or in one corps, to be drawn from two or more adjoining States, for a term not exceeding ----; for which time the officers and men shall be considered as in actual service and be paid and governed accordingly. After some discussion, in which constitutional objections were urged against this provision, the committee rose without taking a question upon it, and the House adjourned till Monday. MONDAY, May 14. _Provisional Army._ The House again resolved itself into a Committee of the Whole on the bill for authorizing the PRESIDENT OF THE UNITED STATES to raise a provisional army; when, the question being put on the section providing for the calling out 20,000 militia at a time, to be trained and disciplined, it was negatived, there being only 11 votes for it. This section was objected to on the ground that the constitution has placed the training and disciplining of the militia in the several States, and that Congress had power only "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion; reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." Mr. SEWALL moved to fill the blank in this section with $200,000. He supposed $50,000 or $60,000 would be sufficient for purchasing the accoutrements mentioned; the remaining $140,000 or $150,000 would be ready in the Treasury in case of emergency, for the other purposes of the act. This mode of proceeding was objected to. It was thought by some that it would be best to appropriate only for the purchase of the articles specified, and provide for the whole expense of carrying the act into effect in one sum, either in this law or some other; but it was finally carried as it stands, and the blank was filled with 200,000 dollars. The last additional section proposed for exempting private soldiers from arrest for debt or contract, during their term of service, was then agreed to. FRIDAY, May 18. _Call of the House._ The SPEAKER informed the House that the hour was arrived at which a call of the House was ordered to be made, and that the clerk would accordingly proceed to the call. The call was accordingly made, when it appeared that 92 members were present, which, with 13 members absent on leave, and 1 sick, made up the whole number of members.[33] _Provisional Army._ The bill authorizing the PRESIDENT OF THE UNITED STATES to raise a Provisional Army, was read the third time; when Mr. MCDOWELL moved to postpone the question on the passage of this bill till Tuesday next. Information had been received from Europe, and was entered on the Coffee-House books of this city, that our Commissioners had been received by the Executive Directory; and that the persons who had held authorized conversations with them on the subject of bribes, &c., were imprisoned. He could not say that this information was true; but, if it were, our differences with the French Republic may probably be amicably accommodated, and there may be no necessity to pass this bill at all. He hoped, therefore, the postponement would take place. Mr. SEWALL should be sorry if a motion of this kind were to receive any attention from the House. If negotiations were opened with the French Republic, they might not very soon be concluded. What appearance would it have to the nations of Europe, if, after all the insults and injuries we have received from the French Republic, the moment Congress heard in an indirect, uncertain way, that they had deigned to receive our Ministers, they stopped their proceedings in all measures of defence. A more unfavorable appearance, in his opinion, could not take place. It ought to be recollected that the army proposed to be raised was a provisional army, and would not be raised, if the contingencies therein named, did not take place. The question for a postponement was put and negatived; there being only 29 votes for it. The question on the passing of the bill was then taken, and stood--yeas 51, nays 40, as follows: YEAS.--John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, Joshua Coit, William Craik, Samuel W. Dana, John Dennis, George Dent, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Roger Griswold, William Barry Grove, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, William Matthews, John Milledge, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Josiah Parker, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, George Thatcher, Mark Thomson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, and John Williams. NAYS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, Thomas T. Davis, John Dawson, Lucas Elmendorph, William Findlay, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, Thompson J. Skinner, William Smith, Richard Sprigg, jr., Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. MONDAY, May 21. _Presents to Ministers._ Mr. BAYARD said, he had a resolution to offer to the House, which he trusted would meet with no opposition from any quarter. It was intended solely to explain the grounds upon which the House proceeded when they refused to consent that Mr. Pinckney should receive the presents usually made by foreign Courts to Ministers upon taking leave, and which had been offered to him by the Courts of London and Madrid. He had purposely avoided in the resolution any expression of approbation of the conduct of Mr. Pinckney during his missions, because he perfectly knew that no approbation of that House could add to the high sense the people of the United States already entertained of the integrity and talents of that gentleman; and because it did not belong to the occasion for the House to express any opinion as to the conduct of the gentleman during the time he was employed abroad. That the design of the resolution he had to submit, was simply to negative an implication which possibly might be made, that, as the constitution certainly did contemplate cases in which Ministers might be allowed to receive presents, the House were induced, by reasons connected with the conduct of this gentleman, to refuse the liberty to accept the presents; whereas he was perfectly satisfied, from the declarations of gentlemen who opposed the permission, who had all taken occasion to testify much esteem for the character and entire approbation of the conduct of Mr. Pinckney while in office, that their opposition arose from principles of general policy, which led them to think that, in no case should presents be allowed to be received. Nay, they had said, that the purity of this gentleman's character, and the importance of his services, furnished a happy opportunity of establishing an invariable rule precluding the acceptance of these presents, which no merit hereafter should induce the House to depart from. The subject, however, was of so delicate and tender a nature, that he conceived it a piece of justice on the part of the House to state explicitly the grounds upon which their decision was made, in order to preclude the possibility of any mistake as to their motives. He should rely, therefore, with perfect confidence, that the following resolution would be unanimously adopted: _Resolved_, That this House, in refusing to allow Thomas Pinckney, late Minister at the Court of London, and Envoy Extraordinary to the Court of Madrid, to receive the presents usually made by the said Courts to foreign Ministers on taking leave, were induced to such refusal solely by motives of general policy, and not by any view personal to the said Thomas Pinckney. Mr. GRISWOLD moved the postponement of this resolution till to-morrow. The question on postponement was put and negatived--41 to 34. The question on agreeing to the resolution then recurred-- Mr. SEWALL had some doubts as to the propriety of the determination of the general question, as he believed, by that determination, the House had parted with an advantage placed in them by the constitution. He thought the best way of settling this business would be to reconsider that question. He knew one gentleman who had voted upon it through mistake, and there might be several others in the same situation. The question on agreeing to the resolution was put and carried unanimously. _Naturalization Law._ On motion of Mr. SEWALL, the House went into a Committee of the Whole on the bill supplementary to, and to amend the act to establish an uniform rule of naturalization, and to repeal the act heretofore passed on that subject. Mr. SEWALL moved to fill the blank specifying the length of time necessary for an alien to give notice of his intention to become a citizen, before he can be admitted, with "five years." Carried. The blank declaring the length of time necessary for an alien to reside here before he can be admitted a citizen, Mr. S. moved to fill with "fourteen years." Mr. MCDOWELL hoped this blank would not be filled with so long a time. The residence now required from foreigners before they can become citizens is five years. He would not object to an increase of the length of this term to seven years; or, if the committee thought nine better, he would not object to it. He did not wish to discourage an emigration to this country of respectable foreigners, by barring them from the rights of citizenship. The policy of this country had always been different, and he did not wish entirely to change it. When persons come here from foreign countries, it was our interest to attach them to us, and not always to look upon them as aliens and strangers. The question for filling the blank with "fourteen," was put and carried--41 to 40. Mr. SEWALL moved a clause providing that no alien who comes from a country at war with us, shall be admitted to citizenship while such war continues. Agreed to. Mr. GALLATIN wished to know whether the provisions of this act are intended to extend to persons who were in this country previous to the passing of the law of January, 1795, which requires a residence of five years before an alien can become a citizen, but who have neglected to become citizens, as well as to all those aliens who have come to the country since January, 1795; although they may have made the declaration by that law required three years before they can become so, of their intention of becoming citizens of the United States. The law of January, 1795, had made an exception in favor of all aliens then in the country. As the bill stands at present, Mr. G. said, it would have a retrospective effect on three descriptions of persons, viz: all those aliens who were in this country prior to the adoption of the present Constitution of the United States, and who were not naturalized under the State laws before the act of 1790; in the next place, it affects all those who, under the law of 1790, might have been naturalized, and all those who, under the law of 1795, might hereafter be naturalized, provided they have made the necessary declaration of their intention of becoming citizens. From the year 1795, many persons, with a view of making themselves citizens of this country as soon as the law would allow them, have renounced their allegiance to the countries from whence they came, and if this bill passes in its present form, they will for ten or twelve years to come be without citizenship in any country. He hoped, therefore, some exception would be made in favor of the descriptions of persons which he had named. One reason which led him to mention this circumstance was, that there are a great number of persons in the State of Pennsylvania, and many in the district from whence he came, who, though they are not citizens of the United States, really believe they are. This mistake has arisen from (an error common to most of the districts of the United States) a belief that an alien's being naturalized by the laws of a State Government, since the act of 1790, made him a citizen of the United States. The Mayor of Philadelphia, till the year 1795, admitted citizens under the State law, who afterwards considered themselves as citizens of the United States. He always thought that construction to be wrong--Congress having the power to pass, and having passed an uniform naturalization law, which, in his opinion, excluded the idea of admission to citizenship on different terms by the individual States. But he knew the contrary opinion till lately generally prevailed. Indeed, he knew that at the late election in this city, the votes of respectable merchants, who had obtained American registers for their vessels, on a presumption of their being citizens, were refused on this ground. The same mistake had extended to other parts of the Union. It may be said that, since the year 1795, these persons might have gone to any of the courts and have become citizens. In this city, and in others, he supposed persons had generally done so; but where people are two or three hundred miles distant from the District Court of the United States, they had not always an opportunity of doing it, especially on account of a construction of the act of 1795, which had prevailed in some counties of Pennsylvania, and which made it doubtful whether any court in the State out of the city, could administer the oath of citizenship. Mr. G. supposed that since the year 1790, from ten to fifteen thousand emigrants had come into the State of Pennsylvania, two-thirds of whom believed, till lately, that they were citizens of the United States, from their having been naturalized by the laws of that State. It has now been discovered that they are not citizens; but since that discovery was made, they have not had an opportunity of being admitted according to the law of the United States. If some limited period was given to these persons to come forward to be naturalized, and they did not become citizens in that time, he should be willing to exclude them. He thought, indeed, provision should be made for all these persons, but he would not move any amendment until he had heard the opinion of the committee on the subject. The amendment just adopted, for excluding their enemies from citizenship, would do away any objection which could be urged against a provision of this kind. Indeed, the persons he alluded to generally came from the territories of the King of Great Britain, and three-fourths of them from Ireland. Mr. SEWALL said, this subject was before the select committee, and it was the opinion of a majority of that committee that no exception ought to be made, but that the bill should pass in its present form. His own sentiments were decidedly against any alteration. As to the Irishmen whom the gentleman from Pennsylvania has mentioned, as they have neglected to avail themselves of the privilege of becoming citizens, he supposed they did not place any high value upon it. They are now permitted to hold lands; and from the present distracted state of the country from whence they have emigrated, he did not think it would be prudent to make them eligible to hold seats in the Government after a residence of five years. He believed the liberty which the United States have given in this respect heretofore has been unexampled, and it was high time the evils which had arisen from this imprudent liberality should be remedied. The present distracted state of the world, and the attempts made to disturb other governments, showed the necessity of the proposed regulations. Mr. S. did not consider the persons who had been mentioned as laboring under any disadvantages. Considering what they have left, and what they receive here, their situation is vastly improved by the change which they have made, without giving them any chance of becoming members of our government, for they would have had little chance of becoming members of the government which they have left. He did not suppose they came here with a view of getting into the government, but to acquire property, and to enjoy peace and happiness, and this they might do independent of citizenship. As he saw no good, therefore, to be derived to the country from admitting these persons to citizenship, but much danger, he hoped the bill would be agreed to as reported. Mr. GALLATIN said, if the bill was proceeded with, he would prepare an amendment in favor of those classes of persons he had mentioned. The bill was accordingly proceeded with; and coming to the fifth section, where it is provided, that if an alien shall continue to reside here, and shall refuse or neglect to make a report of his residence, and receive a certificate thereof, he shall forfeit two dollars, _and shall be liable to be arrested as a suspected person_-- Mr. GALLATIN moved to strike out the words printed in italic. It was sufficient, he said, that such a person should pay a fine. It was a new thing to punish a man by imprisonment, not for delinquency, but because he was suspected. A conduct of this kind had been highly condemned in another country, and he hoped it would not be adopted here. Mr. SEWALL said, it was the intention of the committee to show the nature of the offence of omitting to make the proper report; to show that such omission would lay the citizens under the suspicion of not acting openly and candidly. Mr. SITGREAVES remarked, that if his colleague's objection only went to the words "suspected person," his motion went too far. The question was put and negatived--37 to 36. Mr. GALLATIN then proposed an amendment to the following effect: "Provided that any alien who was resident within the limits, and under the jurisdiction of the United States, before the 29th of January, 1795, and any alien who shall have made a declaration of his intention of becoming a citizen of the United States, in conformity to the provisions of an act establishing a uniform rule of naturalization, passed on that day, may be admitted to become citizens of the United States, according to the provisions of that act." Mr. CRAIK was disposed to go much further than is proposed in this bill in restricting aliens from becoming citizens of this country. He should have no objection to say, that no foreigner coming into this country after this time, shall ever become a citizen; but he believed if this law was to have a retrospective operation on all those foreigners now residing within the United States, who have neglected to become citizens, it would be very unjust. There was a large class of persons, he said, in the country from which he came, who are not naturalized under any law, and many others who had been naturalized under the State law; about the legality of which, as had been stated, there is much doubt, though in Maryland and Virginia foreigners are still naturalized by the States, notwithstanding the law of the United States. In deciding upon this question, Mr. C. said, it would not be proper to take into consideration emigrants from any particular country. Many of the persons he alluded to, are Germans, and well entitled to every privilege that can be given them, and whose neglect to become citizens was probably owing to their ignorance of our language and laws. He should, therefore, be in favor of this amendment, especially as far as it respects those aliens who were in this country before the year 1795. Mr. BAYARD said, though foreigners were prevented from becoming citizens of the United States until they have resided fourteen years in the country, in many of the States, they are entitled not only to vote for filling the offices of the State Governments, but also for filling those of the United States. Therefore, the only privilege which they are denied, is the capacity of becoming members of the Federal Government; which was a denial, he thought, recommended by sound policy. And he did not see why the restriction should not extend to the aliens now within the United States, as to those who shall hereafter come here. If aliens residing here had any right to expect an exception, it must be on the ground of compact. He did not, however, consider naturalization laws in that light. Aliens cannot be considered as members of the society of the United States; our laws are passed on the ground of our own policy, and whatever is granted to aliens is a mere matter of favor; and, if it is taken away, they have no right to complain. Every principle of policy, in his opinion, required this regulation to be made general; for he believed there were as many Jacobins and vagabonds come into the United States during the last two years, as may come for ten years hence; so that these very persons against whom this law was intended to operate, will become citizens, and may be chosen into the government. He hoped, therefore, the amendment would not be adopted. With respect to those persons who have given notice of their intention of renouncing their allegiance to the foreign country from whence they came (for they do not actually renounce it until they become citizens) it can make no difference to them, especially those referred to by the gentleman from Pennsylvania, because it is a principle of the British law, that British subjects have not a right to alienate themselves; they cannot renounce their allegiance to the British King. No objection, therefore, could be had against the measures being general on that ground. Mr. MACON was apprehensive that gentlemen in their zeal to get at particular persons, will go too far in this business. He agreed with them, that, for three or four years past, people of all sorts of politics had come to this country, from the highest aristocrat to the greatest Jacobin; and he doubted not that persons who were very desirous of becoming citizens, or who had any particular end to answer by it, had availed themselves of the law. But there are persons in distant parts of the Continent, who have never yet become citizens, perhaps from their not being in the way of going through the ceremony, and because they had no apprehension of the privilege being taken from them. Many had also omitted to do it from an ignorance of our language. He hoped, therefore, this amendment would be agreed to. If persons have given notice of their intention to become citizens, they have complied in part with the laws; and he did not think it would be right to put it out of their power to comply with the other part. Mr. SEWALL said, this amendment would comprehend those aliens who have come here since the year 1795, though they may have made no declaration of their intention to become citizens, as they may make the declaration before the law passes. As to the other description of persons, he had not the same objection to them. He agreed with the gentleman from Delaware, that our regulations in this respect are made for our own convenience and safety, and that no alien has a right to complain, if these regulations should disappoint his expectations. Mr. SITGREAVES said, this was either a question of right or expediency. He presumed no gentleman was prepared to say any alien had acquired an absolute and positive right in this country to citizenship at any particular time. If not, it was a mere matter of expediency; and, when it is considered in this light, there can be little difficulty in seeing the danger and disadvantages which would arise from allowing foreigners to become citizens, as heretofore, or as proposed by the present amendment. They are too evident to be enumerated. But it was supposed that there were a large number of individuals in this country entitled to citizenship by the law of 1790, but who have, nevertheless, neglected to become citizens. It was a little extraordinary, he said, if this were so; that persons should for so long a time have neglected to embrace a right which, it is now represented, it would be doing them great injury to deprive them of. As to those persons who came into the country since the law of 1795, he saw no good reason for making an exception in their favor. As policy, safety, and security, dictated the measure, he hoped the bill would be passed as reported. Mr. W. CLAIBORNE said he could not reconcile it to his feelings to vote for the bill without the amendment proposed by the gentleman from Pennsylvania, because it would be doing a number of people whom he represented the greatest injustice. Those people, be said, were peculiarly situated. It was only at the last winter session that the State of Tennessee was represented on this floor; and, at the time of passing the naturalization law, the people of that country were not in a situation to receive information of what was done in Congress. It need not be a matter of surprise, therefore, if, in that frontier country, there are many persons aliens who did not take advantage of the law of 1790. There are numbers of such who have given the strongest proofs of attachment to the country; they have fought and bled in the service of the United States, and are as much wedded to the Government of the United States as any man born on American soil. If this amendment does not prevail, it will affect many valuable citizens of the State of Tennessee who were citizens in the year 1795, and ten years before that time. These persons would be deprived of rights, because they were living in a country in which there was no post road, and where, of course, they had no newspapers to give them information of what was going on at the seat of Government. He hoped, therefore, it would not be agreed to. Mr. J. WILLIAMS hoped this provision would be agreed to. When an act is passed, good reasons, he said, ought to be given before any change takes place. Many persons had come into this country from an expectation of being naturalized at the end of a certain period; but, if this provision is not agreed to, the system will be entirely changed. He saw no difficulty which could arise from agreeing to this provision, as persons from countries at war with this country could not be made citizens at all. He knew a number of persons who had not taken advantage of the naturalization law, who perhaps are as good men as any in the United States. It was true, he said, that by the laws of the several States aliens are allowed to hold land; but when foreigners come here to reside, and behave well, he did not see why they ought to be prevented from becoming citizens. They contribute their share of the expense of government, and it was an acknowledged principle that representation and taxation ought to go together; which would not be the case if the bill was passed without this amendment. The question was put and carried, there being 52 votes for it. The committee then rose, and the House proceeded to take up the amendments. The amendment of Mr. GALLATIN coming again under consideration, Mr. COIT hoped that part of the clause would be disagreed to which embraces persons who were in this country before the year 1795, but who had never shown any disposition to become citizens. Those who came since, and had given notice of their intention of becoming citizens, stand on very different ground. He should have no objection to the latter being accepted, in the way proposed, but not the former. After a few observations on this amendment, it was negatived--49 to 32. Mr. SITGREAVES proposed an amendment, limiting the time within which aliens, included in Mr. GALLATIN'S proposition, should be permitted to avail themselves of the exception in their favor, viz: those who were in this country before the year 1795, within one year after the passing of this act; and those who have come here since, and given notice of their intention to become citizens, within four years from the time of such notice having been given. The question was first put on the former part of the amendment. Mr. T. CLAIBORNE did not wish to punish men for not being born here, but to punish both natives and foreigners when guilty. He hoped two years would be allowed instead of one. The question on two years was put and negatived--31 to 39. It was then put on one, and carried--57 votes being for it. The question on the second part of the amendment was then put. Mr. VARNUM said, the impulse of the moment led members to believe that these restrictions upon foreigners were necessary. He thought there was no necessity for any measures being taken with respect to foreigners, except such as belong to the nation with whom we expect to be at war; yet, he had no particular objection to restrictions being made with respect to such foreigners as shall hereafter come to this country; but, having heretofore held out inducements to foreigners to come to this country, and when they are come, with an expectation of becoming entitled to the rights of citizens in a certain time, he would not disappoint those expectations. Mr. T. CLAIBORNE said, this was a very important bill, and he should wish a little more time to consider on it; he therefore moved an adjournment. The motion was put and negatived, there being only 15 votes for it. Mr. SITGREAVES said, the observation of the gentleman from Massachusetts could only be applicable when the principle of the bill was under consideration; whereas, the present proposition only went to limit the period within which advantage should be taken of the indulgence proposed to be allowed. Mr. VARNUM moved a division of the amendment, and proposed to allow till the 1st of September next for persons to make a declaration of their intention to become citizens. This motion was not seconded; and the question on the amendment was put and carried--47 to 31. The bill was then ordered to be read a third time to-morrow. TUESDAY, May 22. _Alien Enemies._ On motion of Mr. SEWALL, the House went into a Committee of the Whole on the bill respecting alien enemies, Mr. DENT in the chair; when the bill was read as follows: SEC. 1. _Be it enacted, &c._, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion, or predatory incursion, shall be perpetrated, attempted, or threatened, against the territory of the United States, by any foreign nation or government, and the PRESIDENT OF THE UNITED STATES shall make public proclamation of the event, all natives, denizens, citizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed, as alien enemies; and shall be further subject, with their goods and effects, to a just retaliation of any unusual severities, restraints, and confiscations, which shall be suffered by the citizens of the United States, resident within the territory of the hostile nation or government, and inflicted by their authority, previous to, or at the commencement of, any war or rupture as aforesaid, under color or pretence thereof. And the PRESIDENT OF THE UNITED STATES shall be, and he is hereby, authorized, in any event as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom, and to establish any other regulations which shall be found necessary in the premises, and for the public safety, subject, nevertheless, to the regulations which the Congress of the United States shall thereafter agree and establish. [The second section allows to any alien enemy who shall not be chargeable with actual hostility, all the time for the disposal of his effects, and his removal from the country, which any treaty with his nation may stipulate; and the third commits the execution of the act in relation to all persons comprehended in the PRESIDENT'S Proclamation, and to all who shall harbor them, to all the judicial and ministerial officers of the Federal and State Governments.] The two first sections having been read, without motion for amendment, Mr. LYON moved to strike out the word "harbor," in the third section, which was negatived. Mr. MACON thought the third section gave the PRESIDENT a very extraordinary power; it seemed that his proclamation, in all cases, was to be considered as law. He wished the chairman of the committee, who reported the bill, to give some information on the subject. Mr. SEWALL said, the gentleman from North Carolina seemed to suppose that this was a general power placed in the hands of the PRESIDENT, whereas his power is confined by the first section of the bill. This power, Mr. S. said, must be placed somewhere, and he believed it could not be better placed than in the PRESIDENT. Mr. LYON saw no ground for the first section of the bill, except it was to restrain the property of aliens to make satisfaction for the injuries done to our own citizens; nor should he be willing to give a power to the PRESIDENT which might enable him to distress innocent persons. He moved, therefore, to strike out the words "or threatened," in the first section, as he considered these words too vague to authorize the exercise of so great a power as was here given. Mr. MACON seconded the motion. The question was put and negatived, 44 to 39. Mr. HARPER moved to strike out the words "predatory incursion," in the first section. The power, he said, was a very extensive one, and he did not think it ought to be given except in cases of serious attack; but, after a few words in opposition to it by Mr. SEWALL, and in favor of it by Mr. MCDOWELL, he withdrew his motion, alleging that he had not rightly understood the section. Mr. BAYARD said, the last section of this bill contained a principle contrary to all our maxims of jurisprudence, viz: to provide punishment for a crime by a law to be passed after the fact is committed. Whether the crime to be punished is to amount to treason, misprision of treason, or be only a misdemeanor, is left uncertain. It was his opinion that laws could not be too definite; but it would be impossible in this case for the person committed to know what crime he had committed, or to what punishment he was liable. In order to get rid of this difficulty, he moved to strike out all the words after the word "aforesaid," at the conclusion of the last section, and to insert in lieu thereof the following words, viz: "shall be guilty of a misdemeanor, and subject to a fine not exceeding ---- dollars, and be imprisoned not exceeding ---- months." Mr. SEWALL acknowledged there was a good deal of uncertainty in that part of the bill moved to be struck out; but the select committee did not see any way of remedying the evil without making the law too mild in its operation. In some cases, the offence would amount to high treason, the punishment for which is death; in others, to misprision of treason, the punishment for which is imprisonment not exceeding seven years, and a fine not exceeding one thousand dollars. As the offence might, therefore, sometimes amount to high treason, there would be an impropriety in making it uniformly a misdemeanor. If an alien should have resided here for a number of years, and he should turn out to have been a spy, and a citizen of the United States should have harbored and concealed the said alien, knowing him to have been a spy, he would be chargeable with high treason for aiding and abetting the enemies of the United States within its territory, or at least a misprision of treason. But the gentleman from Delaware was mistaken in his idea that it was intended to try an offender by a law passed after the offence was committed. By the expression, "as by law is or shall be declared," was only meant such law as should be passed between the present time and the time of committing any offence. The question on this amendment was put and carried, 44 to 25. On motion of Mr. BAYARD, the blank for containing the amount of the penalty, in the amendment just carried, was filled with one thousand dollars. The committee rose, and reported the amendments; which having been agreed to, Mr. DENT moved to strike out the word "months," in Mr. BAYARD'S amendment, in order to insert "seven years." Mr. N. SMITH hoped this amendment would not be agreed to. He believed the penalty might, in some cases, be too severe, and in others by far too mild. He thought the bill stood well as it was. He did not think there was any uncertainty in it but what arose from the different species of offence which were comprised within this provision--for a person under it might be guilty of the highest crime, or of no crime at all, according to the circumstances of the case. This being the condition of things, to make an uniform punishment for all cases, whether highly criminal, or no crime at all, cannot be proper. The bill as it stands, without the amendment, provides that offenders shall be imprisoned and punished according to the law which is or shall be made, (before the offence is committed,) and he thought this was the proper footing, as the punishment would then be apportioned according to the offence. Mr. BAYARD hoped the amendment would be agreed to. He did not know that a greater misfortune could happen to any man than to live in a country where the laws are so indefinite that a person cannot ascertain when he commits an offence, or what is the penalty of an offence when it is committed. The gentlemen from Massachusetts and Connecticut tell the House about the aggravation of the offence. What was the aggravation they allude to they have not stated, and no gentleman could form an opinion upon the subject. The fact was of a definite nature, and a definite punishment ought to be made for it. What is the fact? It is the harboring and concealing of an alien enemy after the proclamation of the PRESIDENT. Gentlemen say this offence may amount to treason, misprision of treason, or other offence. If the offence could amount to treason, he owned he did not understand the bill, because the crime of treason is defined by the constitution, and could not be varied by any law of Congress. If, then, the fact amount to treason, it will not be included in this law. If gentlemen wished to punish persons in exact conformity to their degree of offence, they ought to prepare a scale of offence for that purpose. If not, the amendment agreed to in Committee of the Whole, ought, in his opinion, to be concurred in. Mr. SEWALL said, this bill aimed at one thing, and the gentleman from Delaware at another. The bill has in itself a definition of the offence. It has declared certain circumstances which shall put a person in a situation in which he shall answer for his conduct. It declares that a person harboring an alien enemy shall be a suspected person; but the crime and punishment must be ascertained by other laws; and by these offenders are to be punished agreeably to their offences, whether they be great or small. Mr. GALLATIN said, if he understood the gentleman from Massachusetts, it was not the object of this bill to define the nature of the offence of which a person shall be guilty, or the punishment for it, for harboring and concealing an alien enemy, but only that certain circumstances should render a man a suspected person. This to him was altogether a new legislation. If he understood the bill as it stood rightly, a person may be apprehended and imprisoned on account of his having harbored and concealed alien enemies; yet the gentleman from Massachusetts says this is in itself no crime; for, if it were a crime, it ought to be punished in the way proposed by the gentleman from Delaware, but he states it to be only a sufficient ground of suspicion. This Mr. G. said, was not only contrary to every principle of justice and reason, but to the provisions of the constitution. The constitution says, "that no person shall be deprived of life, limb, or property, without due process of law." But here certain persons may be deprived of their liberty without any process of law, or being guilty of any crime. Yet the gentleman from Massachusetts says, that this bill does not define a crime or award a punishment. But, Mr. G. said, this assertion was not correct; for there was a new crime instituted, which was that of being a suspected person, and the overt act which is to be evidence of that crime, is the harboring and concealing of an alien enemy, and the punishment is to be apprehension and imprisonment until it shall be found what law the prisoner has offended. Mr. G. said he was ready to acknowledge that where a man commits an offence, he ought to be punished; but he could not consent to punish any man on suspicion merely. He therefore moved to recommit the bill. He did this because he thought the whole of the bill vague in its nature. He wished it to be more in detail, and that the offences to be punished should be defined; for it was remarkable that every section of the bill concluded with these singular words: "subject nevertheless to the regulations which the Congress of the United States shall thereafter agree and establish." So that instead of deciding what the law should be, it gives the PRESIDENT the power of saying what it is; subject to the after regulations of Congress. He wished now to make the law to declare what the offence should be, and what the punishment, and not leave it to the PRESIDENT to make what regulations he shall think proper. If not, the whole of the bill might as well be in two or three words, viz: "The PRESIDENT OF THE UNITED STATES shall have the power to remove, restrict, or confine alien enemies and citizens whom he may consider as suspected persons." When Congress attempted to legislate, they ought not to do it in this way. When the resolution was agreed to, authorizing this bill to be reported, he expected the committee would have defined the nature of offences and their punishments, and not reported the bill in the vague way in which it is before the House, especially as this appears not to be meant for a temporary, but a permanent law. If gentlemen examine the third section of the bill, it will be found that all Judges, Justices, Marshals, Sheriffs, and other officers, and all the good people of the United States, are bound to do, what? Not to execute any law; but to carry into effect any proclamation, or other public act of the PRESIDENT. So that instead of the Judicial, and any other officers of the United States, and the people at large, being obedient to the laws, they are to be obedient to the will of the PRESIDENT. The last clause of the bill, which does not relate to aliens, but to our own citizens, is very objectionable. It is in the shape of a penal law, and the crime it defines is the harboring and concealing of alien enemies. Now it is said, that this crime may amount to high treason, by its being construed that an offender has adhered to the enemies of the United States, knowing them to be such, or it may be no offence at all. But the provision is general; and a man guilty of no offence is liable to be apprehended and imprisoned equally with the highest offender under this law. Upon the whole, it was evident, Mr. G. said, that this bill wants detail, as what is left general and ambiguous, ought to be clearly defined. He hoped, therefore, the bill would be recommitted. Mr. SEWALL said, that the gentleman from Pennsylvania, in order to bring forward this motion, has shut his eyes to the intention of the bill. He says it is a bill for punishing crimes which are not defined. He never knew that alien enemies were guilty of an offence merely as such. It is a bill to provide for the public safety in certain cases. In the event of a war with France, all her citizens here will become alien enemies, but neither this bill, nor common sense, would consider them as offenders. They may be offenders, but not because they are alien enemies; nevertheless it is necessary to provide for the public safety, and in all countries there is a power lodged somewhere for taking measures of this kind. In this country, this power is not lodged wholly in the Executive; it is in Congress. Perhaps, if war was declared, the PRESIDENT might then, as Commander-in-chief, exercise a military power over these people; but it would be best to settle these regulations by civil process. They would be regulated by the treaties as well as by the laws of nations. The intention of this bill is to give the PRESIDENT the power of judging what is proper to be done, and to limit his authority in the way proposed by this bill. In many cases, it would be unnecessary to remove or restrict aliens of this description; and he believed it would be impossible for Congress to describe the cases in which aliens or citizens ought to be punished, or not; but the PRESIDENT would be able to determine this matter by his proclamation. If, however, gentlemen could point out any way in which the necessary regulations could be detailed, he should have no particular objection to it, though he thought the bill stood very well as it was. Mr. OTIS.--In considering this subject, the only practicable modes, he said, which present themselves, are three. To provide for the removing or otherwise restricting all alien enemies without distinction, or to specify some overt acts for committing of which they shall be liable to be removed or restricted, or else to leave the power with the PRESIDENT to take such steps respecting them as he shall think proper and necessary for the public safety. Mr. O. inquired if the House was ready to do the first? He thought not. He had no doubt there might be French citizens resident here who were entitled to protection, who meant to become good subjects, and who ought not to be exposed to any inconvenience or penalty whatever. He believed very few gentlemen are of opinion that it would be proper to treat all alien enemies in the same way. The operation of such a measure would be unjust. Will gentlemen think it right, then, to declare that alien enemies shall only be removed, or otherwise restricted, on conviction of some overt act to be specified in the act? They are at present liable, with all other persons, to be punished for crimes; so that a regulation with this view would be unnecessary. But there may be cases where the conduct of such persons being extremely suspicious, they ought to be taken into custody, though no positive crime could be proved. Suppose a French army were to land in this country, some of these persons might show a disposition, which would warrant their imprisonment; and yet he did not know how such dispositions could be defined in this bill. Mr. O. believed, therefore, that it would be best to vest a discretionary power in the Executive to secure and take care that these men should do no injury. And this could not be looked upon as a dangerous or exorbitant power, since the PRESIDENT would have the power, the moment war was declared, to apprehend the whole of these people as enemies, and make them prisoners of war. And in case of a predatory incursion, made on this country, there might be as much reason for securing some of them as in case of actual war or invasion. So that this bill ought rather to be considered as an amelioration or modification of those powers which the PRESIDENT already possesses, as Commander-in-chief, and which the martial law would prove more rigorous than those proposed by this new regulation. Unless gentlemen were disposed to interfere, to suffer those men to go at large, and to carry on a correspondence with their countrymen and our enemy; unless they will consent to suffer a band of spies to be spread through the country, from one end of it to the other, who, in case of the introduction of an enemy into our country, may join them in their attack upon us, and in their plunder of our property, nothing short of the bill like the present can be effectual. He was willing to say, that in a time of tranquillity, he should not desire to put a power like this into the hands of the Executive; but, in a time of war, the citizens of France ought to be considered and treated and watched in a very different manner from citizens of our own country. As to the objection made by the gentleman from Pennsylvania, that the bill provides a punishment for suspected persons, and that the word suspected was indefinite, Mr. O. asked whether men are not usually arrested on suspicion? When information is lodged against a man for committing an offence, he is suspected of being guilty, and imprisoned until he can be examined. Mr. O. believed, that, to provide for this detention of the person, was all Congress could now do. If the bill was recommitted, he did not think any definite provision could be made. It was necessary the PRESIDENT should have the power of judging in this case, and that punishment ought not to depend upon the slow operations of a trial. Though possessed of this power, the PRESIDENT would doubtless suffer all such persons to remain in this country as demeaned themselves peaceably; but when they discovered a contrary spirit, he would treat them accordingly. Mr. GALLATIN withdrew his motion for committing the whole bill, and moved to commit the third section of it. His arguments, he said, went wholly against that; and gentlemen, in reply to him, had chosen to direct their observations to other parts of the bill. As he did not wish his object to be misunderstood, he would only move for a recommitment of the third section of the bill, as his objections to the other parts of it were immaterial when compared with this. After a few words from Mr. OTIS, Mr. MACON renewed his motion for recommitting the whole bill, which was negatived--37 to 36. Mr. GALLATIN then renewed his motion for recommitting the third section, which was negatived by the casting vote of the Speaker, there being thirty-eight votes for it, and thirty-eight votes against it. Mr. LYON renewed his motion to strike out the words "or threatened," in the first section. He thought this too indefinite an expression upon which to rest so important a power as was given to the PRESIDENT by this bill. Where the liberty and happiness of thousands of people are concerned, he wished they might depend upon something more certain. Gentlemen who advocate this bill, he said, spoke as if all power was to be placed in the PRESIDENT, and Congress were never to sit again. He wished this expression to be stricken out, and if, when Congress met again, they found the PRESIDENT had not power enough, they might give him more. He called for the yeas and nays upon his motion. The question for taking the yeas and nays was put, but less than one-fifth of the members present rising in its favor, it was not carried. The question was then put on the motion, and it was negatived without a division. Mr. GALLATIN supposed, if these regulations were established, it would be proper that permits should be granted to such aliens as the PRESIDENT should suffer to remain in the United States. He was not immediately prepared to introduce a proper amendment for that purpose; but he would move to add a few words in that part of the bill where it is proposed to punish citizens for harboring aliens, to try the question. He did not very well understand the phrase, "liable as an enemy," by which those aliens were defined, and whom it would be criminal by this law to harbor; but he would move to introduce the words, "who shall not have obtained permission, under the authority of the PRESIDENT OF THE UNITED STATES to remain within the territory of the United States." He moved this, in order that citizens might not be entrapped by this law, but that they should know precisely to what description of aliens they might give a night's lodging, without being liable to be arrested as suspected persons. Mr. BAYARD did not think this amendment necessary, as a citizen must harbor and _conceal_ an alien to be guilty of any offence. And the question was put and negatived--38 to 33. The bill was ordered to be engrossed for a third reading to-morrow. WEDNESDAY, May 23. _Alien Enemies._ The bill respecting alien enemies was read the third time, when Mr. R. WILLIAMS moved a recommitment of the bill. He said his objections did not lie so much against the provisions respecting aliens, as to the power proposed to be given to the PRESIDENT of issuing proclamations, which are to be binding on the Judges and other officers with respect to our own citizens. He would wish to designate every offence, and its adequate punishment, as far as it could be done. In order to effect this he made his motion. Mr. SEWALL said, so much discussion took place on this subject yesterday, that he did not expect any more to-day. The gentleman from North Carolina seemed not to object to the powers given to the PRESIDENT by the first and second sections of the bill, but he did not wish him to have any officers to execute his powers. If the PRESIDENT could carry the law into effect with his own hand, he might do so, but he objected to his having any aid from his officers or the people at large. He did not believe this kind of reasoning could have any effect in this House. If the PRESIDENT is authorized to issue orders, he must be authorized to require the aid of proper persons to execute them. Mr. GALLATIN called for the yeas and nays upon this question, which, being agreed to, he hoped this bill would be recommitted. He had no doubt that the committee, by paying due attention to the subject, instead of this general and vague bill, might report such rules and regulations as would be proper to be adopted on this occasion. He recollected seeing a bill from the Senate on this subject, in which something of this kind was done; and though he did by no means approve of that bill, yet it showed that the thing was not impossible. The objection made against a recommittal of this bill, was, that it was necessary to do something to provide means for securing and removing alien enemies, which did not apply as an argument against the recommitment of the bill. It was a good reason why a bill should be passed, but no reason why it should pass in its present form. The present bill, Mr. G. said, was grounded upon the principle that the PRESIDENT OF THE UNITED STATES shall have the power to do by proclamation what ought only to be done by law. In the first place, the Proclamation of the PRESIDENT is to determine the period when foreigners not naturalized shall be liable to be apprehended, restrained, secured, and removed as alien enemies. Mr. G. understood what was meant by apprehending alien enemies, and securing them, but he did not understand the word "restraining;" it was vague, he said, in its nature, and he did not know that it was a legal phrase. The committee could themselves explain it. By the bill from the Senate, it was intended to confine them within the place where they reside; perhaps this was their idea. The bill goes further: they are not only liable to be apprehended, restrained, secured, and removed, but "to be subject, with their goods and effects, to a just retaliation of any unusual severities, restraints, and confiscations, which shall be suffered by the citizens of the United States resident within the territory of the hostile nation or Government, and inflicted by their authority." Mr. G. wished to have explained what was meant by "unusual severities." They must mean something more than confiscations--than apprehending, restraining, or removing--because they are specifically provided for. He wished, therefore, to know what these unusual severities were which, upon our own ideas of Government, we could retaliate? If any other severities besides those which are here enumerated were to be inflicted upon our citizens in France, he thought it would be disgraceful to that country, and he could not believe that either propriety or justice would warrant us committing a disgraceful act against the citizens of another nation, because that nation had committed a disgraceful act upon our citizens in their country. [Mr. SEWALL rose to explain, but the SPEAKER said, the rule which declares no member shall speak more than once to a question would not permit him.] Mr. G. did not know whether these words "unusual severities" were not intended to be held _in terrorem_ over the conduct of France. If so, he did not think it a very creditable proceeding. But he believed that part of the bill perfectly useless, for two reasons: First, it is extremely doubtful whether the PRESIDENT OF THE UNITED STATES could constitutionally exercise those "unusual severities," which this bill says he may exercise; and with respect to confiscation, it was explained by a subsequent part of the bill to be only a sequestration till the next meeting of Congress, and he therefore conceived this part of the bill to be of no use, except to train our code of law in a manner expressly contrary to the spirit of our constitution, which expressly declares no "cruel or unusual punishments" shall be inflicted. But, supposing the words only held out _in terrorem_, he wished to know how they would apply, whether it was to make a part of our permanent law, whether it is suited for the present time only. If it were not to make a part of our permanent system--and he thought no gentleman would say it ought--then it must be on account of our present situation. As to our present situation, in relation to any thing which may befall our citizens in France, he would say the words are useless, and this for a plain reason; for, out of the natives of France in this country, ninety-nine out of an hundred are of that description of persons whom the French call emigrants, and it is therefore perfectly immaterial to the French nation how they are treated; so that the bill could operate only on a dozen or two of persons of a different description who may be in this country. In the next place, with respect to confiscations, which by the next clause are so limited as to become sequestrations, it would be wrong to give this power to the PRESIDENT. An article is inserted in the British Treaty expressly to declare that sequestrations are impolitic and unjust in every case, and providing against them. He admitted that it might be necessary to resort to them on some occasions, because he believed there might be cases where sequestration would be necessary, by way of indemnification; but what he insisted on was, that it ought to be done by law, and not by the PRESIDENT. On a former occasion, when the question of sequestration was before Congress, the power was not proposed to be left at large with the PRESIDENT, but was to be regulated by law. There was another circumstance which showed how easy a thing it would be to pass a law themselves, instead of leaving every regulation relative to this subject with the PRESIDENT. About the middle of the second section it is said, "where no treaty exists, a reasonable time shall be allowed, which shall be ascertained and declared by the PRESIDENT, or by the Congress of the United States." This was a kind of double legislation which was new to him. He wished to know what difficulty there would have been in defining the time here referred to in this bill? It appeared to him the right and proper time to do it. From the moment that the resolution came before the House, he was ready to acknowledge that the power of regulating this business was in the power of Government, as it was a power possessed by every nation, which it had a right to exercise for its own security; but it ought to be exercised according to law. In some countries, indeed, this power is vested in the Executive. In France, he believed, it was wholly so, and in England in a great degree; but in this country he trusted that this House would be of opinion that Congress is the proper body to regulate so important a measure. But the evil, Mr. G. said, did not stop here, it extended to all the citizens of the United States. The object of the last section provides that justices, judges, marshals, sheriffs, and the people at large shall perform a duty which is undefined. But the gentleman from Massachusetts says this is right, because the power given to the Executive by this bill is also undefined. This is the foundation of all the objection made to this bill; it is to the want of legislation in it, which leaves not only alien enemies, but citizens of the United States, to the will of the PRESIDENT. But he would go farther, and say it is impossible to define the duties of our own citizens, though the two first sections of the bill should be left at large as they are. By the present bill, the duties of justices, &c., are to be regulated by the Proclamation of the PRESIDENT. He could conceive that the House might take into consideration the nature of the powers vested in the PRESIDENT, and inquire what will be the duties required to be performed by the several officers of the Government to carry into effect those powers. Those powers are to apprehend, restrain, secure, and remove alien enemies, and to sequester their property. As to the removal of aliens, he could not see what justices and judges had to do with it; but if they had any thing to do with it, Congress ought to say what. They might say what should be the duties of judges or justices, or of Executive officers in the several cases which may be likely to occur, instead of leaving the thing wholly at large. The last part of the 3d section, he said, was as objectionable as any other. It defines the crime in two words, "harboring and concealing," and the penalty, if found guilty of this vague and uncertain charge, is imprisonment not exceeding seven years, and a fine not exceeding one thousand dollars. So that if a person be found guilty of harboring and concealing an alien enemy, however trifling the expense may be, his punishment will be left wholly to the discretion of the court. The only power of the jury will be to decide on the fact; and if a citizen has harbored for one night, however undesignedly, an alien enemy, he must be found guilty, leaving it altogether to the court to judge of the criminality of the act, and to affix the degree of punishment. He thought this part of the law ought to be better defined. It ought to distinguish between cases of misdemeanor and those which might arise from ignorance, and in which no offence at all might exist. He hoped, therefore, the bill would be recommitted. The question on recommitting the bill was put and carried--46 to 44. The yeas and nays were as follow, YEAS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Stephen Bullock, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, Thomas T. Davis, John Dawson, George Dent, Lucas Elmendorph, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, William Barry Grove, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Matthew Locke, Matthew Lyon, James Machir, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, Josiah Parker, John Read, William Smith, Richard Sprigg, jr., Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. NAYS.--John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, David Brooks, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, John Dennis, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, and John Williams. Mr. SEWALL, Mr. DANA, Mr. IMLAY, Mr. S. SMITH, Mr. JOSIAH PARKER, Mr. BROOKS, and Mr. RUTLEDGE, composed the committee. FRIDAY, May 25. _Instructions to Armed Vessels._ Mr. SEWALL, from the Committee for the Protection of Commerce and the Defence of the Country, to whom was referred Mr. SITGREAVES' resolutions for instructing the commanders of our public and private armed vessels, and also the bill from the Senate for the further protection of the commerce and coast of the United States, reported it as the opinion of that committee that the bill from the Senate ought to be agreed to by the House. The report was twice read, and ordered to be committed to a Committee of the Whole. On the SPEAKER'S asking for what day this bill should be made the order, Monday, to-morrow, and to-day, were named. The question was first taken on Monday, and negatived--43 to 37. The question was then put upon to-morrow. Mr. GALLATIN hoped this bill would be made the order for to-morrow, as the bill had only been printed this morning, and the report but this moment made. It would be a very extraordinary proceeding to make this very important bill the order for this day. Mr. J. WILLIAMS said, this was a very extraordinary case. When we learn every day that our vessels are taken by the French cruisers, without any cause whatever, it is necessary to act with decision. This day had been spent on a very trifling business compared with this, and he hoped the House would sit until this bill was gone through. Mr. MCDOWELL hoped this bill would be made the order for to-morrow, as it had only been laid upon the table this morning, and few gentlemen had yet turned their attention to it. Besides, the usual hour of adjournment is arrived, and he hoped gentlemen would not insist upon hurrying so important a bill through the House in this manner. The gentleman from New York remarked that the House had been engaged in trifling business all the day; but, he observed that gentleman sat very contentedly under the discussion, though he now seems so desirous of expediting this business. Mr. SEWALL was impressed with the necessity of passing this bill as soon as possible. If the committee had thought they might with propriety have taken time to deliberate upon this subject, they would not have made this report, but have taken into consideration the resolution which had been referred to them with this bill; but finding it necessary that our armed vessels should receive their instructions immediately, that they may go out and take the vessels on the coast, or drive them off, they made this report, intending hereafter to report farther upon the subject. But the present measures they thought necessary, from the peculiarity of our present situation; the dangers attending which the people without seemed to be fully persuaded of. And as this subject had been fully discussed on the resolutions which had been before the House, he hoped the bill would be immediately taken up; as he wished to provide without delay for the defence of our coast as far as our force would permit. Mr. MACON said, it was very extraordinary indeed, that gentlemen should wish to hurry this bill through the House in the way proposed. It appeared as if they were afraid of any thing coming from our Commissioners before they got the country in war. Being now the usual hour of adjournment, it could not be expected that if the House went into this bill, that any debate could take place. Indeed, gentlemen seemed to wish to prevent debate as much as possible; a few days ago, they had got a rule passed that no person should speak more than once to any question, and now by moving to go into a Committee of the Whole, at the hour of adjournment, they wish to prevent them from speaking once, and that upon a bill which will certainly place the country in a state of war. He thought a regard to decency ought to prevent gentlemen from pushing this motion. Mr. LYON called upon gentlemen to consider the importance of this bill. He considered it as a declaration of war as it now stands, and he hoped time would be given to consider whether some amendment could not be introduced into it, so as to prevent its being so considered. At present, he believed, it was directly in the face of the laws of nations. He was desirous of avoiding war if possible. His constituents also wished it. He had received at least two hundred letters requesting him to do all in his power to prevent it. Indeed, he was afraid of the consequences of war; he was afraid it might produce even a dissolution of the present Government. Mr. BRENT was proceeding to express his astonishment at the conduct of gentlemen in wishing to press so important a subject upon the House, while members were impatient to adjourn, when, Mr. SEWALL rose and withdrew His motion, and the bill was made the order of the day for to-morrow. SATURDAY, May 26. _Protection of Commerce._ Mr. SEWALL called for the order of the day on the bill from the Senate for the more effectual protection of the commerce and coasts of the United States; and the House accordingly resolved itself into a Committee of the Whole on the said bill, Mr. DENT in the chair. The bill having been read,[34] Mr. MACON rose and observed, that he wished to amend both the bill and the preamble to it, and desired the Chairman to say which it would be in order to move first. The Chairman having answered that it would be most regular first to amend the bill, and then the preamble could be made conformable to it, Mr. MACON moved to strike out the word "such," in the enacting clause (the effect of which was to make the instructions given to the commanders of our vessels general against all cruisers, as well as against the French.) His reason for making the motion was, that if this bill must pass, it might be general against all nations who commit depredations upon our commerce, for it was a fact well known that France is not the only nation which does this. It was his opinion, that before any measure of this kind was taken, we ought to know the result of our mission in France; for, however slender our expectations of an accommodation may be, still those expectations ought not to be abandoned, until we are certain our Commissioners have left Paris, without being able to accomplish their mission. Mr. M. believed it could not be doubted by any one, that, if we had thought a state of war preferable to the state in which we had been placed for some time back, we had had sufficient provocation from more than one nation to have declared war long ago. Indeed he looked upon this bill as a declaration of war in substance; he saw that this was the situation to which measures were progressing, but he could not have expected that gentlemen would have proposed a measure of this kind whilst our Commissioners were yet in Paris. It was his opinion, however, that, disagreeable as our present situation may be, it is much preferable to a state of war; for, notwithstanding all the losses which our merchants have sustained, our trade and our revenue are continually increasing. In the part of the country from whence he came, Mr. M. said, the price of produce is now higher than it has been for some time past. But, in the case of war, it would fall, of course. Notwithstanding all the evils which he was sensible must attend on a state of war, when he found our Commissioners had left France, and no hope of accommodation remained, he should not hesitate to join gentlemen in any measures which shall be necessary to meet a state of war. Mr. MCDOWELL said, the gentleman from South Carolina had dwelt much upon the inconsistency of the present motion. He himself could not see any in it. He had insinuated that the mover and seconder of it must be blinded by prejudice and governed by passion; that, instead of going to war with one nation, it would be going to war with three, and that before we remonstrate with them, or request them to desist from their practices; that we have been attempting to get redress from France for eighteen months past without effect, but that no attempt has been made to negotiate with England or Spain on the subject of their depredations. In this the gentleman from South Carolina was certainly mistaken. He knew we had lately concluded a treaty with England, which had been constantly violated; and what faith, Mr. McD. asked, could be placed in a nation which one day makes a treaty, and the next violates it? The same remark would apply to Spain, so far as they have depredated upon our commerce. Mr. McD. said, he had all along declared himself opposed to war, or to any measures which would lead to it, and he still held the same opinion. He had no prejudice against or in favor of any nation whatever, except so far as their conduct towards this country was friendly or otherwise; and he could see no reason for giving instructions to the commanders of our vessels to seize and bring in the vessels of one country which may commit depredations upon our commerce, and not those of another. He was himself opposed to the bill altogether; but, if it must pass, he wished to make it contain as little mischief as possible, and he thought by striking out the word "such," and by that means making it general, France could not take the same offence at it; as the bill now stood, it was tantamount to a declaration of war. Mr. J. WILLIAMS was in hopes, when the gentleman from North Carolina first made his motion, that the opposition which he had heretofore shown was done away, and that the bill was only objected to because it was not general; but now it appears that gentlemen are opposed to the bill altogether. He had hoped when gentlemen had reflected upon what had taken place, even within our own jurisdiction, that there would not have been a single dissenting voice in the committee. Gentlemen allege that this measure will lead to war; but he would ask whether other neutral nations had not taken measures fully as strong as this, without producing war? For his part, he supposed it might have been better if this country had gone into this system of defending our commerce. He was opposed to it for a considerable time. He was in hopes of a reconciliation taking place; but he had been deceived from time to time, and, instead of any appearance of accommodation, every day brought information which convinced him that, except we meant to submit altogether, we must defend ourselves. This being the case, he asked gentlemen which they would choose? Whether they would suffer themselves to come under the power of the French nation, or repel force by force? He did not believe any gentleman would say we ought not to embrace the latter. At a time when the enemy's vessels are within our own jurisdiction, are we to withhold the necessary instructions to the commanders of our vessels? He hoped not. Not that he would go hastily into war; but have we not, he asked, been in war for a long time?--a war on one side, and total submission on the other. Yet the House are now called upon to postpone the consideration of this question, lest it should produce war. The only way to prevent a war, he believed, was to be prepared to meet it. If spirited measures had been taken during the extraordinary session of Congress, he believed it might have prevented the loss of property to the amount of twenty millions of dollars, and the necessity of a war. But Congress had gone on, from time to time, saying, we will wait for this, that, and the other, and it will, in all probability, prevent war. This conduct had produced the greatest difficulties, and yet gentlemen wish to go further in the same course. The enemy's vessels, he understood, are within the Capes, and he supposed gentlemen would wait till they came up to the city, before they would take any means to oppose them. He believed it was high time to say, "We will not submit," and to prepare to repel the repeated aggressions of our enemy. Mr. SHEPARD observed, that much had been said on this bill, and on the resolutions on the same subject, which were referred to the same committee. Members differed in opinion very materially as to the proper mode of conducting our affairs at this important crisis; but he could see no reason for deferring vigorous measures any longer, as he did not see the least ground of hope for a reconciliation; it was, therefore, idle to dispute about it. But gentlemen decline taking this measure, because they are apprehensive it will irritate the French nation. Mr. S. believed this country could do nothing to alter the conduct of the French nation towards us, except it were by giving them money. There could be no doubt, he said, but the French meant to subjugate this Government, and to lay the United States under contribution. Every newspaper told them this; yet some gentlemen seem opposed to every thing intended to resist their doings, or even to tell them they have done wrong. For his part, he believed that nation had been boiling over with madness for two years past, and that they are totally void of every virtue. They have told us, said Mr. S., in plain terms, they mean to subjugate us. They say they have a strong party in this country, and that they understand diplomatic agency as well as any other nation. This he believed, as he saw they had effectually used that power in subduing every country in Europe that they had any thing to do with, except Great Britain, and he feared they would succeed against her. No man, he said, disliked war more than him; but, he believed, the best way of preserving ourselves from it, was to take measures to oppose a power which has so unjustly treated us. We ought not, he said, to trifle any longer, but take new ground. The more insults we submit to, the more we shall have. He could not suppose gentlemen would be willing to wait till all our vessels are taken and our Government overcome, before they will make resistance. If we meant to preserve our independence, he believed resistance ought now to be made. It is time, said he, to tell the French nation, "we will not submit any longer." This was the way we gained our independence, and this must be the way by which we must keep it. He hoped, therefore, the bill would pass as it stands. Mr. OTIS said, though he had sufficient confidence in the committee to induce him to believe that the present motion cannot succeed, yet he could not forbear to expostulate with gentlemen on the impropriety of any measures which should have a tendency to give unnecessary offence to other nations, besides that against which we are called upon to act. To increase our foes would only be to aggravate our misfortunes. Mr. O. hoped and believed this country would be able to defend itself singly and alone; but, supposing, as gentlemen agree to be true, that we are on the eve of a war, would it not be highly impolitic to irritate a power whose assistance we may find very acceptable in the course of a few months against a common enemy? He hoped it would never be necessary to seek for this assistance, though it is possible, if we are driven into war with our old friends, that we may willingly avail ourselves of the aid of our old enemies; for, though we had suffered injuries from more nations than one, yet he agreed with our Envoys in the sentiment that, if France should attack us, we must seek the best means of defence; and may find it more prudent to forgive than to provoke, by harsh measures, a nation which may aid in our defence. Mr. O. said, if, after injuries had been committed against us by Great Britain and Spain, of the same nature with those which have been heaped upon us by France, and those nations, like her, had refused to hear us, or to do us justice, he would support the same measures against them and vindicate our national character and honor. But though he should by no means attempt to extenuate the conduct of Great Britain or Spain, he believed he might say that the depredations committed by those powers subsequent to their treaties, have been under color, at least, of the laws of nations. But the difference in the degrees of these depredations, in comparison with those of the French Republic, cannot be better ascertained than by the rates of insurance paid as a security against them respectively. Insurance may be effected against the Spanish and British for five per cent., whilst it cannot be procured against the French for less than twenty-five or thirty per cent. And though the British cruisers do, in some cases, take our vessels, in others they afford them protection. Indeed, he believed, the number of our vessels rescued from the fangs of the French, and restored to us by the British, greatly exceed in value the amount of those which have been taken from us by them since their treaty. They have saved to Philadelphia about a half a million of dollars. With respect to Spain, he believed her disposition towards us to be friendly, and that an injury offered by them to us was done at the instigation of another country. Again, we have received, under the late treaty with Great Britain, £100,000 sterling for damages sustained by her depredations, and from Spain $300,000 have been awarded on the same account. So that no comparison could possibly be made between the treatment we experienced from France and those countries. She makes no treaties--she pays no compensations. Mr. KITTERA rose to observe, that one of the articles in our treaties with Great Britain and Spain, stipulates that no reprisals shall be authorized by either country until application shall be made to the other, which he thought would be a sufficient reason for negativing the amendment. He believed it would be proper to adopt an additional rule to those already established for the government of the House, viz: that when French privateers come within our own ports and take our vessels, a long debate shall not take place upon a bill to instruct the commanders of our vessels to make reprisals. Mr. GALLATIN, in reply to the last observation of Mr. KITTERA, said that, if his assertion was true, that the French privateers were committing depredations within our own ports, or any where within our jurisdiction, it was no reason why this bill should pass immediately; for, without the bill, the PRESIDENT had full power to apply the armed vessels, or any other force at his disposal, in repelling the outrage. As to the amendment, he would not pretend to say that it was very essential; but, he supposed, the reason for moving it was this: It was asserted that this bill was not a declaration of war, but only a kind of special reprisal authorized by the law of nations; it was, therefore, thought it would be proper to make it a general regulation. If it was intended to be a declaration of war, it would be extremely wrong to make two enemies instead of one. If it was to be passed with that intention, it would be wrong to adopt the amendment; but he supposed it was introduced on the ground assumed by the supporters of the bill, that the measures proposed might be entered into without violating the laws of nations, and consistently with a state of peace. The question was put and negatived, there being only 22 for it. The question then came up on the bill's going to a third reading; when Mr. BRENT said he voted against the amendment offered by the gentleman from North Carolina, because he apprehended its effects would be to involve us in war with two countries instead of one. The amendment of the gentleman from North Carolina was to strike out the word _such_ in the bill, in which instance the commanders of our armed vessels would have been directed by the PRESIDENT to seize and take the vessels of any nations that shall have committed, or are found hovering on our coast for the purpose of committing, depredations on the commerce of the United States. As the bill now stands, it will only apply to French depredations; if amended as proposed, it would have applied to Great Britain, or any other country whose subjects or citizens are unlawfully spoliating our commerce--as he believed that the laws of nations and the stipulations of treaties had been violated in relation to us, not only by the French, but the British also, he considered the tendency of this amendment might be to involve us in war with Great Britain, and he did not wish to increase the number of foes with whom we were to engage in hostility. That he was accurate in his opinion that the armed vessels of Great Britain were at this time in the practice of violating our neutral rights, seemed to be acknowledged by others, and particularly by the member from Massachusetts, (Mr. OTIS,) who had opposed the amendment, with a suggestion that in the event of an open rupture with France, it might be expedient for us to call in the aid of England, and, supposing the amendment might have a tendency to create irritation between that country and this, it was improper that at this crisis it should be adopted. This reasoning of the gentleman from Massachusetts could only be derived from an admission that Great Britain did not at this time respect our neutral rights; for, as the amendment only authorized the seizure of vessels spoliating our lawful commerce, there could be no danger that such a regulation would involve us in war, or produce a coolness with Great Britain, without a previous acknowledgment that her armed vessels were illegally depredating our commerce, and consequently would be affected by the general provision of the amendment, which, instead of confining our reprisals to French, extended it to vessels of all nations thus acting illegally in relation to ours. Though, Mr. BRENT said, he was not, under any circumstances, like the gentleman from Massachusetts, for embarking our destiny with that of Great Britain in her present contest with France; though he should consider such an event as one of the most deplorable which could befall the United States, yet he was willing and even studious to preserve peace with Great Britain, notwithstanding the many injuries we had received from that quarter; on the same principle, from the same desire to preserve the tranquillity of His country, he was opposed to the bill itself. He considered this bill as perhaps determining the question, whether or not there should remain a possibility of reconciling our differences with the French Republic. He considered this bill as probably dispelling every ray of hope which yet remained of a reconciliation taking place, and he hoped gentlemen would pause a moment before they adopted a measure so serious and awful. He did not see that we were at present exposed to any greater danger, or our commerce to any great extent to ravages more considerable than we had experienced for some time past. He acknowledged that our commerce had received great and repeated injuries from France; that it had long felt their injuries and still continued to suffer; yet, under all these circumstances, a disposition has been constantly evinced, and he believed was still sincerely cherished by the great mass of our people, that recourse should not be had to the last fatal resort, till every mode of amicable negotiation had been attempted, and every rational hope of a peaceable adjustment of our complaints was exhausted. From these impressions, and at a period when our commerce was suffering their unjust depredations, we had sent Commissioners to the French nation; and was it proper, until we were certainly advised that our Commissioners had left France, or that every hope of their effecting the object of their mission was to be abandoned, to precipitate a measure, the probable effect of which would be to destroy all prospect of reconciliation, even if, at the present moment, our Commissioners should be engaged in a treaty? Mr. B. said, that neither the despatches which we had received from our Commissioners, nor any other intelligence from abroad, that he was acquainted with, compelled a belief that every possibility of negotiation was past; on the contrary, it was perhaps strictly within the bounds of probability, that, when the Government of France discovered an inflexible disposition on our part not to accede to terms dishonorable or disadvantageous, others of a less exceptionable nature would be, and perhaps before this have been, proposed. But, in every event, what is now a matter of conjecture, a few weeks will reduce to certainty; a few weeks must bring us certain and decisive accounts from Europe, and he was for postponing all deliberation respecting the very delicate subject under consideration till this intelligence arrived. At present, he believed it would be premature and inexpedient to adopt the proposed measures, and should therefore refuse to give them his assent. The question on the bill going to a third reading, was taken by yeas and nays, and stood--51 to 39. The bill having been determined to be read a third time, the usual question was put by the SPEAKER, "For what day shall it be made the order?" Monday and to-day were answered. Mr. GALLATIN hoped Monday would be the day. He did not see the necessity for passing the bill to-day. But it was said, the House ought not to exercise their discretion upon this subject, because French privateers are within our Capes. To this, he replied, that if there was any invasion of our jurisdiction, and depredations committed within it, the PRESIDENT OF THE UNITED STATES had power to repel them without this law. He knew he had it, because the power is expressly given to him in the law respecting the revenue cutters; and he knew the power had been used by him when a vessel, taken by a privateer within our jurisdiction, had been restored to the owner by the PRESIDENT. He agreed with the gentleman from Delaware, that the PRESIDENT had not power to employ an armed force to make reprisals of vessels within our jurisdiction which may have taken vessels belonging to the United States. Besides, he understood that the Senate were not in session to-day, and therefore the bill, if passed to-day, could not go any sooner to the Senate than if it passed on Monday. If, therefore, it could not hasten the final passage of the bill by going to the Senate to-day, he wished to know what other reason could be given for so hasty a proceeding? He saw none. He saw one reason for not passing it. Every hour might be expected to bring despatches from our Ministers. It was known that a vessel had arrived from France which is said to have brought accounts up to the 8th of April. Perhaps she may bring information that would produce unanimity of opinion as to the propriety of passing this bill. Mr. J. PARKER said, as it could make no difference whether this bill passed to-day or on Monday, he should be in favor of Monday, as it is possible the vessel which had been mentioned might bring some advices from our Envoys, though he expected nothing more favorable from that quarter than had been already received. As it was said a French privateer was within our boundary, it was probable she might commit some depredation which might be heard of before Monday, which would convince every one of the necessity of passing this bill. Mr. OTIS saw no reason for delaying the passage of this bill till Monday, arising from the possibility of the vessel, which was said to have arrived from France, having brought any news; because, if information should be received from our Commissioners which would give a different aspect to our affairs, the PRESIDENT OF THE UNITED STATES could refrain from giving these instructions. If this bill was passed to-day, it might be reported to the Senate on Monday morning; but if it was postponed till Monday, gentlemen might come with fresh motions and speeches, and produce a further delay. Mr. DAVIS hoped the passage of this bill would not be insisted upon to-day. This subject had but very lately been referred to a select committee, and they had made an expeditious report. He had just given his vote in favor of the bill's passing to a third reading; but if, contrary to the usage of the House, he should be called upon to vote on the passage of the bill to-day, he should vote against it. Mr. VARNUM said, since the bill would become a law as soon if passed on Monday, as to-day, he could not see why the motion was objected to. This question, Mr. V. said, was of the greatest importance, as it went to plunging the country into a war from which it might not be extricated for many years to come. Yet gentlemen act as if they were afraid intelligence should be received before this bill becomes a law, which shall make it unnecessary. Indeed, it appeared to him, that there are certain gentlemen in the House who are determined to have a war with France, at any rate. Mr. V. said, it had been complained that an allusion had been made to the coffee-house books of this city, respecting certain information from France; he did not think that was more out of order, than what was heard one day about French privateers having landed men on the coast--another, about their being in our harbors, and taking our vessels from thence. All which stories, he had no doubt, were raised to influence the votes of members of this House. The public would doubtless see them in this light. Mr. SITGREAVES said, as the gentleman last up appeared to have some doubt as to the fact of a French privateer's being within the bay of Delaware, he would read the information lately given by a Captain Canby, on oath, at the office of the Secretary of State. [This certificate has appeared in the papers: it speaks of having seen a French privateer four miles within the bay.] He would add, that with respect to the vessel arrived from Bordeaux to-day, she brings information that our Commissioners were yet in Paris, but not received by the Directory. She left Bordeaux the 8th April, so that the hope of receiving any favorable news by her could not be indulged. Mr. S. observed, that this bill was intended to meet a case of emergency, and it was proper to get it passed as soon as possible. If he saw it passed to-day, he should be sure there could be no difficulty about it next week; but, if it was postponed till Monday, he should be afraid of further time being spent upon it. The gentleman from Kentucky (Mr. DAVIS) had already said, it would not be proper to pass this bill while our Envoys are in Paris; therefore, though the question were postponed till Monday, his vote could not be expected. He, therefore, saw no reason for the delay. The question on the bill's being read a third time on Monday, was put and negatived, 49 to 41. The question on reading it a third time to-day, was then put and carried. The bill was accordingly read the third time and passed by yeas 50, nays 40, as follows: YEAS.--John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, John Dennis, George Dent, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Josiah Parker, John Read, James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, and John Williams. NAYS.--Abraham Baldwin, David Bard, Lemue Benton, Thos. Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, Thomas T. Davis, John Dawson, Lucas Elmendorph, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, William Smith, Richard Sprigg, jr., Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. MONDAY, May 28. _Marine Corps._ Mr. SEWALL called for the order of the day on the report of the Committee for the Protection of Commerce and the Defence of the Country, proposing an arrangement, in one corps, of the marines, who are or shall be engaged in the service of the United States, and by annexing them to the existing Military Establishment, to consist of a major and suitable commissioned and non-commissioned officers, 500 privates, and the necessary musicians. Mr. GALLATIN wished the committee who made this report, would inform the House how many men would be wanted on board the several armed vessels of the United States. Mr. J. PARKER said the United States have three frigates, twelve ships, and ten galleys. The two 44 gun frigates will require fifty marines each; one of 36 will need 48 men; two vessels of 22 guns each, will want 25 each; two vessels of 20 guns will require the same number; eight vessels of 16 guns each will need 20 men each; and ten galleys each 10 men, making in the whole 518, exclusive of sergeants and music. There will be no additional expense attending the change except the pay of a major, and it would be much more convenient to be thus organized, than to remain as at present. Mr. VARNUM wished to know whether these men could ever be together so as to enable the commanding officer of a battalion to discipline the corps. He believed they would be separate in the different vessels, and that there would be no means of bringing them together for the purpose. Besides, those marines who have engaged in the service, have engaged to serve on board ship, and not on land, so that this law would have a retrospective effect on those men, now, to say they should serve both on sea and land. Mr. SEWALL could not say that these marines could be brought together to be disciplined; but the major would superintend the whole, hear complaints, and attend to the recruiting service. He would also have to attend to the fortifications, and take a great deal of trouble from the War office. The men would also sometimes be on shore, and without some officer is appointed, they would be solely under the care of the lieutenant. He believed, upon the whole, much advantage and economy would be derived from it. The question being put upon the report, it was agreed to--54 votes being for it. The committee then rose, and the House agreed to the report, after a few observations from Mr. GALLATIN, hoping that, when the bill was brought in, this corps of marines would not be made a permanent part of the Military Establishment; but only have the same duration with the laws for equipping and keeping in employment the armed vessels. FRIDAY, June 1. _Intercourse with France._ The bill for suspending the commercial intercourse between the United States and the French Republic, was read the third time; and, after the blanks were filled, Mr. GALLATIN inquired, whether there was not a mistake in the third section of the bill in that part which related to foreigners. The bill, as it stands, would affect vessels belonging to foreigners residing here. He proposed a change in the phraseology. Mr. SEWALL had no objection to the alteration, and he supposed it might be made by general consent, without recommitting the bill. Consent was granted, and the alteration made. The following question was then put, "Shall this bill pass?" Mr. MCDOWELL could not reconcile it to himself to give a silent vote on the passage of this important bill. He had heard no reason assigned for the introduction of this bill, either when the original proposition was before the House, or since; and, therefore, though the bill might pass by a large majority, he should give his vote against it. It had been said, by the gentleman from Massachusetts, that this bill was intended to secure the property of the citizens of the United States from capture. How was this to be done? This bill will not lay an embargo, and, therefore, cannot prevent our vessels from falling into the hands of the French, or any other nation, who chooses to attack them. If gentlemen wished to effect their object, they ought to propose a general embargo; but when he found gentlemen indisposed to this, he could scarcely believe them serious in their wishes to prevent the property of our citizens from being taken. By this bill our merchants are prohibited from trading to any of the ports of France or her dependencies. This he neither thought politic or just. He thought there was no cause for going this length at present. It would be seen by the estimate on the table, the great amount of exports sent to those countries, and this bill would not only destroy the trade to France and her dependencies, but affect also all our other trade. Gentlemen better acquainted with commerce than he pretended to be, would be able to ascertain the effects of this regulation with more precision than he could do; but it appeared to him that this regulation would put the whole of our exports within the power of Great Britain. He hoped, therefore, gentlemen would consider the inconveniences which would be produced by this measure, and not suffer their passions, which are so highly irritated against France, to lead our citizens into serious difficulties, for the sake of doing her some injury. There could be no doubt, that the moment France received the information of the passage of this bill, all negotiation would be put an end to, and they will lay their hands on all the property belonging to citizens of this country, which they can meet with. He was of opinion that the prudence of merchants alone would be sufficient to regulate the business, without Legislative interference. Mr. McD. hoped, therefore, the bill would be passed, and called the yeas and nays upon it. Mr. SEWALL said, it was very true, as the gentleman from North Carolina observed, that no general reasons had been given in favor of this bill; and he did not know that any opportunity had occurred in which they could with propriety have been given. Certainly if a measure meets with general approbation, and passes without argument and without discussion, it must have been carried for the best reasons. Reasons, said he, are not strengthened by debate; general consent indicates the strongest reasons in favor of a measure that can be assigned. The gentleman from North Carolina has supposed that the only arguments in favor of this bill was, that it would be the means of protecting the commerce of our citizens; that argument, he agreed, was forcible, but he confessed he relied upon this measure very much affecting our enemy. It occurred to the committee that this measure might very much distress the French West Indies, which are the harbor of a nest of pirates, which continually assail our commerce. It is true, he said, that our commerce is also annoyed in the European seas, but in a much greater degree from vessels fitted out from the West Indies; the privateers from these islands depredate our commerce upon our coast, and if no measures are taken to prevent it, they might soon be expected on our shores. Any measure, therefore, which can be taken, consistent with our political situation, ought to be taken to prevent this mischief. This would not be carrying on hostility, but would withdraw from our enemies the means of supporting their hostility. Gentlemen have objected to this bill because they conceive it will not have this effect; he was, on the contrary, in favor of it, because he believed it would have the effect. Mr. S. considered our trade with France as at present annihilated, as well as that with Spain and Holland, in a great degree; and France must hereafter, if this bill passes into a law, carry on her trade with this country by means of vessels belonging to the Hanse Towns, Sweden, or Denmark; and having reduced France to the necessity of changing her measures with regard to the neutral powers of Europe, she might, perhaps, be induced to change her conduct with respect to the United States, or perhaps with respect to all the neutral powers. He thought this measure recommended by these political considerations. Whether it would produce all the effect which had been mentioned, he could not tell, but it was well calculated to produce it. And the only objection to the measure appeared to be, that it would produce commercial disadvantages to our merchants; but since the adoption of the decree of the French Directory, which directs that all neutral vessels, with British produce or manufactures on board, shall be confiscated as good prizes, and which goes to the destruction of nearly all our trade, this objection would have but little weight, as a trade thus carried on would stand but a very small chance of producing any profit. Some merchants, indeed, are of opinion that our trade to France and her dependencies has for a long time past been attended with loss instead of profit. It was evident, he said, that the decree to which he had alluded had already had the effect in this country to lower the price of our produce, as many vessels employed in that trade are now employed in a different manner. Mr. GALLATIN must confess, without pretending to be a very good judge of the subject, that this measure appeared to him at least of a doubtful nature. The object of it is said to be to distress France and the French West Indies as much as possible. How far this could be effected, or whether the attempt to distress our enemy might not distress ourselves more than the enemy, he was not able to ascertain with precision. With respect to France herself, he did not see that it could have any effect. As to the West Indies, Guadaloupe, which he supposed was the place principally aimed at, was so situated with respect to neutral islands that she could always procure supplies of provisions from them. The only place, then, which would be affected by this regulation would be St. Domingo, and there he believed it might have some effect. If the intercourse between this country and that was stopped, it might be distressed for want of provisions; but in doing this he was persuaded we should also injure ourselves, by annihilating our commerce and sinking the price of our produce. With respect to our commerce, in six weeks or two months, all the trade which our merchants now carry on to French ports would be transferred to other neutral nations. The Danes and Swedes will come into our ports and carry our produce to the French islands; so that the only difference, after that time, will be that the carrying trade which we now have will be transferred to those powers. France will be supplied by way of Holland or Hamburg, and as the freight and other expenses attending the trade will of course be greater than if the commerce was carried on direct, it may be expected the price here will be low. It would be the same with respect to provisions. If the measure would be likely to distress France or her islands to any considerable degree, so as the better to bring her to terms of accommodation, he should not object to it. The inconveniences attending it must be encountered by our citizens; but seeing its effects on our enemy would be doubtful, and upon ourselves certain, he should vote against the bill. Effectually to prevent provisions being carried to the West Indies, the exportation of them ought to be forbidden, both in our own vessels and in all others. Without this we cannot prevent our provisions from being exported by means of neutral vessels to French ports. So far as related to his own constituents, Mr. G. said, they are not immediately concerned in this question, as they do not export their produce either to the West Indies or any port of Europe, but to New Orleans, by the Mississippi. He stated the matter as it struck him, and left other gentlemen to enlarge upon it. Mr. RUTLEDGE allowed that the bill was liable to the objection which had been urged by the gentleman from Pennsylvania, and which might be made against every measure which would be proposed for the defence of the country; it might be said of it that it will produce some inconvenience to our constituents, and bear hard upon the commercial and agricultural interests; but he believed no measure could be devised which would prove so injurious to France, and as little inconvenient to America, as suspending the commercial intercourse between the two countries. The gentleman from Pennsylvania thinks the bill under consideration will prove fruitless, because the vessels of Sweden and Denmark may carry our produce to the French West Indies; this could not be contemplated as a probable event; in the convulsed state in which almost all the commercial States of Europe are, neutral bottoms will be in too great demand in Europe to permit of their seeking freights in America. If, however, they shall come here, and the Danes and Swedes become our carriers, we can then adopt the regulation suggested by the gentleman from Pennsylvania; we can then prohibit our intercourse with the French, even by means of neutrals; or as that may be impracticable, inasmuch as we shall not have any control over a neutral vessel after she leaves our ports, we can lay a general embargo. Mr. R. thought gentlemen were greatly mistaken who imagined the present measure would lower the prices of our produce. He did not believe they would fall in consequence of the present bill or any which could be passed. He did not believe a declared war would lower the price of our grain. For some time past, an _ex parte_ war has existed; the French have made war in every sea upon our commerce, which for months past has been bleeding at every pore. Government has not protected the trade of the country, but has, by preventing our vessels from arming, deprived our merchants of the use of the means their wealth afforded, of protecting themselves; thus insurance and seamen's wages have been higher, and the price of produce lower than they probably will be in a state of declared war. The grain of the State he had the honor of representing sells for less than it has done for twenty years past, or at any period of the last war; rice, which is the great staple of the country, and which, a few years ago, sold at six dollars the hundred weight, now sells but for a dollar and a half, and Indian corn, which article, the year before last, sold at a dollar a bushel, now sells for twenty-five cents only. The gentleman from North Carolina has insisted, that because our trade to France and her dependencies, for the two last years, has been great, we ought not to stop it. He thinks that merchants understand their interests better than we do, and that if they, who are in the habit of calculating risks, think it proper to prosecute a trade with France, that we ought not to restrain them. Mr. R. allowed that our exports to France the year before the last had been great, but said that our returns had been small indeed; of the great number of valuable cargoes sent to St. Domingo, very few have been paid for. The proclamations of persons in authority in that island, and other deceptive contrivances, have allured much of our property to its ports, but, arriving there, it has been arbitrarily taken at a price fixed by the government, and payment made by bills upon France, which have not been paid, and are now lying protested at Paris, to the amount of many millions of dollars. So that our exports, which the gentleman says France has taken, have been literally _taken_, very little of it having been paid for. Upon such terms it was impossible to suppose this commerce would continue, and it is fallacious in the extreme to calculate, as a permanent trade, that which a peculiar state of things has occasioned with the French islands for some years past, and which we are now suffering for having engaged in. Mr. R. said he was not apprehensive of giving umbrage to any honest merchant or fair trader, when he declared it as his opinion, that a trade with France would not and could not be carried on at present but by persons sinking under pecuniary embarrassments. Like gamblers upon the threshold of ruin, they adventure and put at hazard the remnants of their fortune to increase the chances of recovering what had been previously lost. The trade, he also believed, was in a great degree carried on for some time past by bankrupts, who, by means of bank facilities, and other credits fraudulently obtained, were enabled to speculate in a sea of danger and risk, into which they would not have gone if they had had any thing to lose. In such a state of things, it would be wise and expedient for Government to interfere, and say to the merchants who are willing to continue trading with France, although you may be disposed to continue this commerce, because it is carried on upon a borrowed capital, and because it is insured in Europe, yet we will put a stop to it, for we must take care of our sailors. When they are abused and imprisoned, and their captains publicly whipped in French ports, it is our duty to protect and preserve them from a continuance of such injuries. Mr. R. concluded with observing, that the present bill would occasion much distress to the French islands; would be the means of preserving many of our vessels and seamen, and answer other very valuable purposes. He hoped therefore it would pass. Mr. OTIS said, as neither of the gentlemen who had spoken on this subject had expressed an opinion which had a primary influence on his mind, he would beg leave to declare it in a few words. It was undoubtedly desirable, that this country should have a free commerce with all the world; but, under our present circumstances, with relation to France, no intercourse will be maintained with that country by the fair American merchant. He will not venture his property either to France, or to any of her dependencies. None but merchants who may have exclusive privileges in the ports of France, will now carry on this trade. He had no doubt that Citizen Hedouville, and other agents of the Directory, would give exclusive privileges to a certain description of dealers at the expense of the fair trader. Protections of this kind had been given, he believed, to favorite traders in every considerable port in the United States; and were not the proposed regulations to be adopted, these persons would be growing fat and rich, while the whole body of merchants would be suffering from the injustice and violence of the French. He did not think it would be prudent to leave room for encouragements of this kind to any of our citizens. For, while they are in the habit of receiving large favors from the agents of the French Government, they will be likely to feel a stronger attachment to the interests of that country than of their own; and a stronger temptation could not be offered to them than a monopoly of the French trade. Mr. O. inquired whether, in a state of war, it was not usual and proper for all nations to restrain their subjects from a direct trade with their enemies? And are we not in war? Have we not passed a variety of bills which gentlemen have declared amount to war? This very morning, a bill has been passed, which, according to their construction, reaches the climax of war measures. If, then, we are now in a state of war, it will be inexpedient to continue to carry on this traffic. But, it is said, if we restrain our own citizens, it will be carried on by neutral nations. To a certain degree, it might be supposed that this would be the case; but this is one of the losses incident to a state of war. We must expect that a part of our carrying trade will be transferred to neutrals for a time; but though this will affect the mercantile part of the community, it will not wound the agricultural interest so deeply as a total suspension of commerce. If neutral vessels come hither for produce, the price will not fall so low as it otherwise would do, and the farmers will be the better able to bear the burdens which a war must necessarily lay upon them. Mr. W. C. CLAIBORNE said, it was his intention to vote in favor of the passage of this bill for two reasons. The first was, we have many vessels and much property afloat on the ocean, which we cannot adequately defend, and which is now constantly depredated upon. This measure will keep many of our vessels at home. The second was, that it would tend to increase our revenue, which at this time is a very desirable thing; for he was of opinion, that the neutral powers of Europe would become the carriers of our produce to the West Indies. Denmark, Sweden, and the Dutch all possess islands in the West Indies in the neighborhood of the French Islands, and if they come and fetch away our produce, the duty on tonnage will be increased; and the duties arising from imposts will not be lessened, as they will doubtless bring with them the produce of Europe when they come out to this country. The question on the passage of the bill was then taken, and stood--yeas 55, nays 25. MONDAY, June 4. Mr. MACON informed the House of the death of his colleague, Mr. BRYAN, at nine o'clock this morning. The House, in consequence, entered into a resolution appointing the members of North Carolina a committee to manage the funeral of the deceased, and stating that the House do attend the same. This committee afterwards reported that the funeral would take place at nine o'clock in the morning.[35] _Seditious Practices._ Mr. SEWALL, from the committee for the protection of commerce and the defence of the country, reported a bill for the prevention and restraint of dangerous and seditious practices, which was committed for Wednesday. [This bill proposes, that any alien resident, or who shall come to reside within the United States, who hath been convicted of any felony, or other infamous crime, or who shall be a notorious fugitive from justice, upon any charge of treasonable or seditious practices, in any foreign State or country, or whose continuance within the United States shall be, in the opinion of the PRESIDENT OF THE UNITED STATES, injurious to the public peace and safety, may be deemed and adjudged a dangerous person, and may be required to depart from the country, and be apprehended and removed therefrom. And if any person, whether alien or citizen, shall secretly or openly combine, or conspire together, with an intention of opposing any measures of the Government of the United States, which are or shall be directed by the proper authority, or to defeat the operation of any law of the United States, or to discourage or prevent any person holding any place or office in or under the Government of the United States, from undertaking or executing his trust or duty; and if any person, with intent as aforesaid, shall by any writing, printing, or advised speaking, threaten such officer or person in public trust, with any danger to his character, person, or property, or shall counsel or advise, or attempt to procure any insurrection, riot, or unlawful assembly or combination as aforesaid, whether such conspiring, &c., shall have the proposed effect or not, shall and may be punished, upon the conviction of the offence, by a fine not exceeding ---- dollars, and by binding, with sufficient surety for good behavior, or by imprisonment for a term not exceeding ---- years; and if the person so convicted shall be an alien, he may be farther adjudged, in lieu of such binding or imprisonment, to be banished and removed from the territory of the United States.] TUESDAY, June 5. Mr. RUTLEDGE proposed a resolution to the following effect, which was unanimously agreed to: "_Resolved_, That the members of this House, from a desire of showing their respect to the late Nathan Bryan, Esq., member of this House, deceased, will go into mourning for one month, by wearing a crape on the left arm." _Relations with France._ A Message was received from the PRESIDENT OF THE UNITED STATES, as follows: _Gentlemen of the Senate, and Gentlemen of the House of Representatives:_ I now transmit to both Houses the communications from our Envoys at Paris, received since the last which have been presented by me to both Houses. JOHN ADAMS. UNITED STATES, _June 5, 1798_. The said Message, and communications referred to therein, were read, and ordered to lie on the table. WEDNESDAY, June 6. Mr. ALLEN proposed a resolution to the following effect: "_Resolved_, That there shall be a call of the House at half past eleven o'clock every day on which the House shall sit during the present session." Ordered to lie on the table. _Relations with France._ Mr. D. FOSTER laid the following resolutions upon the table, viz: "Whereas the French Republic, regardless of those principles of good faith which ought to ensure a due observance of treaties, have, in various instances, violated the express stipulations of the treaties heretofore made and subsisting between the United States and the French nation, in a manner highly injurious to the interest and honor of the United States; by reason whereof the United States are released from all obligation on their part to respect the said treaties, or to consider themselves as holden or bound thereby. "_Resolved_, That it is expedient to make a Legislative declaration notifying the citizens of the United States, and all others concerned, that the said treaties are no longer obligatory upon the United States. "_Resolved_, That provision ought to be made by law, authorizing the PRESIDENT OF THE UNITED STATES to grant letters of marque and reprisal against all ships and other vessels, with their cargoes, found on the high seas, sailing under the authority of the French Republic, or belonging to the said Republic, or any of the citizens thereof, or its dependencies; to continue and be in force until the French Government shall revoke and annul the orders and decrees authorizing the capture and detention of the vessels and property of the citizens of the United States, contrary to the laws of nations. "_Resolved_, That provision ought to be made by law granting a bounty, in proportion to the size and number of guns, on all armed vessels (which shall be taken and brought into any of the ports of the United States) belonging to the Republic of France, or to any of the citizens thereof, or of its dependencies, or to others sailing under the authority, or pretence of authority, from the said Republic." They were ordered to lie upon the table. FRIDAY, June 8. _Letters of Marque, &c._ Mr. D. FOSTER then called up his resolutions relative to granting general reprisals, letters of marque, &c., which, being read, he moved to refer to the Committee for the Protection of Commerce and the Defence of the Country, with power to report by bill or otherwise. Mr. DAVIS hoped these resolutions would not be referred. It appeared very strange to him that gentlemen should be desirous of taking this step at present. He had heard much in this House about French parties, and of gentlemen being attached to France, but he thought the House had witnessed, not many minutes ago, something of another party, (referring to the negative which had been put upon the resolution calling upon the PRESIDENT for information respecting British depredations.) And yet, when we have lately received information from France that peace is probably yet within our grasp, a motion is brought forward which, if adopted, would effectually shut out all hopes of a favorable termination of our dispute. In the conclusion of the late despatches, he read as follows: "As we were taking our leave of Mr. Talleyrand, we told him that two of us would return immediately, to receive instructions of our Government, if that would be agreeable to the Directory; if it was not, we would wait some time, in the expectation of receiving instructions." So, that two of our Commissioners might be expected shortly to return, to lay certain propositions before the Government here, or that they will write for farther instructions; and, whilst these things are pending, can a proposition like the present be justified? He thought not. It was not, in his mind, a declaration of war; but it was evidently a war measure. And when it is evident, from our Envoys' own showing, that the negotiation between them and the Minister of Foreign Affairs in France was in train on the 8th of March, the date of their last despatches, as certain propositions had been made to them which were not rejected, he thought it would be extremely imprudent to refer resolutions of so hostile a kind as these certainly are. It would be time enough, Mr. D. said, to adopt a measure of this kind when our Envoys shall have informed us that peace is unattainable; but, whilst they held up a contrary expectation, he could not consent to do any thing which should cast wholly away the hope of preserving a state of peace. With respect to the first resolution, which declares the treaty between France and this country void, he had not much objection to it, because it must be so considered from the laws already passed; but those which respect the granting letters of marque and general reprisals, he thought very objectionable indeed. Mr. HARPER said, if the arguments of the gentleman from Kentucky were well founded, he had not introduced them at the proper time. If he views the state of our negotiation with France in the light which he had placed it, his objections to this measure are natural and consistent; but they ought to be made, when a bill is brought in, against its being read a second time; or if the motion had now been to adopt the resolutions instead of referring them, the remarks which he had made would have been perfectly in order; but that gentleman must know that there is a great difference between committing and agreeing to adopt a resolution. He would confess that he, for one, should not now be ready to agree to any of those propositions, though a fortnight hence he might be willing to adopt them all. If the motion was, therefore, for adopting, instead of referring them, he should move a postponement, or the previous question, or take some other mode of disposing of them; but when the motion was merely to refer them to a committee who might report upon them immediately, or let them lie until farther information was received from our commissioners; or, if they report a bill, that bill might lie until gentlemen thought proper to pass upon it. He did not, therefore, see any ground for the alarm which the gentleman from Kentucky has shown. He confessed he could not look upon our negotiation with France as in the happy train in which it appears to that gentleman. He knew we might have peace, if we would consent to have our property plundered _ad libitum_; or by paying a contribution to the full amount of our ability to pay, which were the terms that Talleyrand and his agents had offered to our Envoys; and this loan was made a _sine qua non_ by Talleyrand. He could not tell, therefore, how the gentleman from Kentucky could conceive the negotiation to be in good train, except he is willing to pay the tribute which France demands from us. Mr. VENABLE said, the gentleman last up had drawn a distinction between committing these resolutions and agreeing to them, and had said that he himself is not ready to agree to them. Mr. V. thought resolutions of this kind ought not to be laid upon the table before the House is ready to decide upon them, as the moment the foreign nation to which they have reference hears that such resolutions have been brought forward, they will take advantage of it, and seize all the property belonging to our citizens within their power. If the resolutions are not proper, therefore, to be adopted, they ought immediately to be rejected; for, if this is not done, we may expect that not only all the property of our citizens in French ports will be seized, but that all our vessels without exception which can be met with will be taken. He hoped, therefore, if gentlemen are of opinion with him that the time for taking measures like the present is not yet arrived, that the reference would be refused. It would do infinite mischief. We ought not, he said, to show a spirit of this kind, until we are perfectly prepared to act. And as he believed the House is better calculated to judge of the propriety of thus changing the situation of the country, than any committee could be, he should not choose to ask the opinion of the Committee for the Protection of Commerce and the Defence of the Country what he should do in this case. Mr. R. WILLIAMS observed, that the gentleman from South Carolina seemed to argue in favor of committing these resolutions, as if no time would be so proper for doing so as the present. But he believed this House would be equally capable of judging of this matter hereafter as at present, and could act upon them in future as well as now. Why, then, ought the House now to refer them, when even the gentleman from South Carolina says he is not prepared to vote for them; but that if he were called upon now to vote upon them, he should give his negative on the question? It appeared to him, Mr. W. said, that the reference of these resolutions could have no other appearance than that of a challenge, and will doubtless produce the consequences which have been mentioned by the gentleman from Virginia. And however their vessels may have depredated upon our commerce, and suffered their citizens to plunder us at sea, they have not gone so far as to make it a national act to seize all the property of our citizens within their power. He was, therefore, opposed to this reference: for though, whenever the time of actual war shall arrive, (for it seemed as if it must arrive,) we shall think it necessary to do France all the mischief we can, yet he did not think it would be prudent to tell them we mean to injure them in this or that way beforehand. Mr. HARRISON believed, that to refer these resolutions would be to give them a degree of sanction; and as he looked upon the question as very important, he should call for the yeas and nays upon it. They were agreed to be taken. Mr. GALLATIN said, it appeared to him that the committee to whom it is proposed to refer these resolutions might, without this reference, have brought the subject before the House, as they are appointed to consider whatever relates to the protection of commerce and the defence of the country. The reference must mean something more, therefore, than a mere instruction to them to consider the subject, because they have already those instructions given to them generally in their original appointment. What, he asked, could be obtained by a vote on this subject? He was at a loss to know. He could see no possible good to be derived from it. He wished, indeed, the committee to whom it is proposed to refer these resolutions, instead of doing the business committed to them by piecemeal, in the manner which they had adopted, had laid before the House at once a complete general plan of defence consistent with the present situation of the country. A majority of this House seem not only ready to take every defensive measure, but, in a certain degree, offensive measures also. This having been once determined, the committee might very well prepare such a plan. Such a plan would be more consistent and uniform, than if individual members were left to bring forward any measures which it may strike them as necessary to be taken. Of what use, Mr. G. asked, had been the reference of a set of resolutions made some days ago by Mr. SITGREAVES? No report has been made upon them. A part of them were of the same nature with these, and would authorize a report on this subject, if the committee had not the general power already mentioned. So far as any conclusion could be drawn from the despatches of our Ministers, he confessed he had no great hopes of our negotiation with France being concluded in an effectual manner. He saw a kind of negotiation open between our Envoys and the French Minister for Foreign Affairs. He saw that the latter had asked for a loan; a demand inadmissible by our Envoys, since it was contrary to their instructions; a demand inadmissible from any instructions they might hereafter receive, for the sentiments of the Executive on that subject were well known; and, he would add, a demand inadmissible in its very nature, inadmissible in the opinion not only of this House, but of every individual in the House. So that, as long as that demand was insisted upon, no accommodation could be effected. But it must have been remarked, in the late despatches, that when our Envoys inquired of Mr. Talleyrand whether a loan of money was the ultimatum of the French Government, he did not choose to give a direct answer. This shows it to be possible that this demand may not be their ultimatum; and if not, as we have heard it reported, (though not officially,) that one of our Commissioners still remains in Paris, it would not be prudent to take any step that would defeat any treaty which might be in contemplation. Mr. W. CLAIBORNE hoped the motion for postponement would prevail, for, though a reference of those resolutions would not be a complete sanction of them, he should consider it as a prelude to a speedy adoption. His observation on the past proceedings of the House justified this remark. Mr. C. differed in opinion from the gentleman from North Carolina as to the power of Congress with respect to treaties. He believed Congress has a right to do away any treaty by a Legislative act; if not, he should think he lived under the most miserable Government upon earth. What, said Mr. C., is the nature of the injuries which we have received from France? Have they not been wholly maritime? and have we not done all we can conveniently do for the defence of our commerce? Was not all our marine force already under such regulations as to be enabled to act to great advantage in the prevention of future outrages on our commerce? Why, then, shall we proceed to measures which must inevitably involve the country in war? Will the adoption of these resolutions give us a single ship or gun? No. Why, then, widen the breach between the two countries, by acting upon a measure more replete with impolicy than any act he ever saw introduced into that House. If it were adopted, it would go to the destruction of our commerce with several of the great commercial powers; for the moment war is declared with France, we shall also be at war with Spain and Holland, her allies. And when a war with Spain shall take place, the commerce of the Southern States and Western country will be immediately gone, and all our vessels in French, Dutch, or Spanish ports, will doubtless be confiscated. These, he said, were evils which he foresaw would attend the adoption of these resolutions, and he called upon the mover to show a single advantage which could be derived from their adoption. He hoped, therefore, the question would be postponed for a week; and if, at the end of that period, nothing shall have transpired which will make their adoption proper, he trusted they would then be farther postponed. If France is determined to have war with us, we must and will defend ourselves; but he was desirous that no act of ours should show that we ourselves wish for war. Mr. SITGREAVES did not feel very solicitous whether the reference of these resolutions should or should not be postponed for one week, as he did not think so short a time would make any essential difference in the state of things; but, as he knew no good purpose that could be answered by the postponement, he should vote against it. He rose to offer his reasons in favor of the reference, generally. His colleague (Mr. GALLATIN) had fallen into two mistakes; he had said that these resolutions are of the same nature with those which he (Mr. SITGREAVES) had the honor, some days ago, to lay before the House; and that the committee, to which the resolutions are proposed to be referred, have, at present, all the power which this reference would give them. He was not correct, in the first place, in saying that these resolutions are of the same nature with those formerly submitted. The former propositions suggested a course of special reprisal, in cases limited and defined; the present propositions are for letters of general marque and reprisal, which modes of proceeding are essentially different in their nature and their incidents, in their theory and practice. The present propositions, also, recommend a declaration on the subject of the treaties, to which the former ones made no allusion. He believed his colleague to be equally mistaken in his other assertion, that the committee had already power to report to the extent of these resolutions, if they should deem it expedient. Their general power was to consider and report upon so much of the PRESIDENT'S Speech as relates to the protection of commerce and defence of the country; and this authority, when construed with relation to the Speech, cannot be considered as going beyond the measures of defence, strictly compatible with the neutral position in which we stood at the commencement of the session; and could not, without an express reference, justify the committee in proposing broad measures of hostility. This, however, is a question of form merely. If the committee have already the power, the reference proposed can do no mischief; if they have it not already, it remains to inquire whether they ought not to have it. He conceived they ought. Mr. BALDWIN said, that nothing was more certain than that individual members could not vote to refer a motion to a committee, as was now proposed, unless at the time they feel themselves favorably disposed to the object of the motion, and vote to refer it to a committee to further that object, and to give it practicable shape and form. The gentleman who had just sat down should reflect, that referring petitions is a matter of course, and is established by usage as a respectful form of receiving and hearing the applications of our fellow-citizens. The introduction of a petition requires no second; but a motion made and seconded, is to be regarded as a step in the actual operations of the House. For himself he must say that, with respect to the present motion, it required no time for him to be ready to declare, that he was not now favorably disposed towards it, and could not, in any shape, now give it his countenance and support. When he reflected on what they had done in the small space of a few weeks, and the course of measures which had been adopted by Congress since the receipt of the despatches from our Envoys, he thought they had come on, one upon another, in a succession sufficiently rapid. They must, in their nature, greatly affect the state of the country, perhaps more than was ever done before in so short a time. He thought it would be wise in the House, at present, to make a short pause, before they proceeded any further. It is a subject on which all Governments are apt to err, and to proceed too rapidly. Let us, said he, take a little time to ourselves, and give some time to our constituents, to look at our interests, and the state of our public affairs, in the new posture which we have given them in the course of a few weeks. Our measures, he said, divided themselves into three classes; first, the internal defence of our country and of our sea-coast. On this there had been no difference of opinion; we had adopted, promptly, the same course of measures which had been adopted a few years ago, when we were threatened by another European power; we had fortified our ports and harbors, fixed row-galleys and other vessels on our coast, and ordered a draft of eighty thousand militia to hold themselves in constant readiness; and ordered a million of dollars to be expended, in procuring arms, cannon, and ammunition, to be placed all along the country in proper situations, that they may be put into use by such of our fellow-citizens as should be driven to the unfortunate necessity of defending themselves by arms. He had been glad to see such a perfect unanimity in those measures, and such a readiness, on all quarters, to vote even larger sums than were recommended in the reports for these purposes. This course of measures was founded on principles merely defensive, and related only to our own country, and our own coast within cannon shot from our shores, which, by the law of nations, is called our territory; he trusted what had been done, accompanied with the spirit and resolution of our countrymen, would render our country impregnable. The second course of measures, which he said had also been adopted, was extending our military preparations, and carrying our force beyond our own jurisdiction, on the main ocean, to defend our commerce by convoys, and to seek for and capture French privateers. On these the House had not been unanimous; they had appeared to be founded on more questionable policy; but, as the laws were passed, they would not only be cheerfully submitted to, but as vigorously supported as the others; it was now his duty to hope and expect that they would do more good than harm. The third and last course of measures, was presented to our consideration by the present motion, to put the country immediately into an actual state of war. He must say he had been surprised to hear it; he thought it very ill-timed; he must express upon it his utter disapprobation. As had been already stated, the last official information from our Envoys, showed that our negotiations were still going on; and though the French Minister still insisted on a compulsory loan, which our Ministers justly declared to be a very inadmissible condition; yet, it ought to be noticed in the despatches that, when he was asked by Mr. GERRY, if they were to consider him as insisting on a loan as an ultimatum, he avoided the question, which gives reason to believe that, as things then stood, a loan or war was not an absolute inevitable alternative; it was such an alternative as he was not disposed to take, so long as it was avoidable. Though our situation has been, in many respects, bad for the year past, yet in a state of actual war it will be much worse. He never turned his attention to the part of the country where he lived, but that he felt himself compelled, by every principle of duty to those whom he represented, to address and to urge every consideration to avoid going to that extreme. They have been once almost totally destroyed by war; they know, from their distance and from past experience, that prompt and adequate protection never will be extended to them. He believed no honest man, deliberating merely for the public good, could take a view of the affairs of this country, of his own home, and of his friends, and think of going into a state of war, if it is possible to avoid it. Mr. DANA hoped the gentleman from Georgia did not want to inquire of his constituents whether they would consent to a treaty with France, in which we shall bind ourselves to pay a tribute. He trusted if that gentleman's constituents were thus to instruct him, he would refuse to obey their instructions. He hoped no member of this House could be prevailed with to set his hand to what would prove the death-warrant to the liberties of the country. Mr. D. thought, therefore, that no instructions were necessary on this subject; it is not a subject proper for deliberation in the American Congress, and no other terms of accommodation had been held out to us by that country. Does not Mr. Talleyrand, said Mr. D., complain of the Farewell Address of General Washington, and of the Speeches of Mr. Adams, and say that, before any treaty can be entered upon with us, some proof of our friendly disposition must be shown towards them, and that proof, he more than insinuates, must be a loan, or a tribute to the extent of our capacity to pay? If the despatches do not mean this, he did not know what they mean; and when Mr. Talleyrand was asked whether this was the ultimatum of the French Government, though he does not answer in direct terms, it is clearly implied that it is so. What, then, said Mr. D., are our hopes relative to France? Does any body expect any thing from the terrible generosity of the Great Nation? Can we expect any thing from their justice, or, rather, have we not every thing to expect from their vengeance, if not prepared to meet it? Why do gentlemen tell the House of the danger of irritating France? He thought delicacy of this kind unnecessary, when speaking of a nation which has set at defiance every moral principle, which has taken and is determined to take our vessels, contrary to every principle of right. For himself, he felt no such delicacy; and, therefore, he was in favor of referring the resolutions under consideration. He did not think them so notoriously wrong that they are not fit subjects for deliberation. Mr. J. WILLIAMS wished to say a few words in reply to the remark which had been made, that members who voted for the reference of resolutions, generally vote for the resolution itself. He believed he could produce twenty instances to the contrary, where references had been made, and the measures themselves afterwards have been disagreed to. He should give his vote in favor of the committal, because he wished to see the principles of these resolutions detailed; but he by no means pledged himself to vote for the passage of the bill. The gentleman from Kentucky had spoken of two parties in this country, but that the decision upon a resolution of this morning proved that there is now a third party. He supposed the gentleman who had made the motion alluded to would have given some reasons why it ought to be agreed to; but not having done that, he voted against it. [The SPEAKER reminded Mr. W. of the question.] He then observed in reply to the remark of the gentleman from North Carolina (Mr. R. WILLIAMS) with respect to treaties, that it was clear from the writers on the laws of nations, that when one nation breaks a treaty, it is no longer obligatory on the other party. But treaties are nowadays done away, and power substituted in their place. According to the opinion which gentlemen had themselves expressed, Congress had already agreed to form different measures, which would involve the country in war. If the present bill was passed (and he doubted not it would be) it will be the fifth, though the gentleman from Pennsylvania has said that this reference will give the Committee for the Protection of Commerce and the Defence of the Country no new power, and of course, in his opinion, it could make no difference whether these resolutions are referred or not. The yeas and nays were taken, and the question was negatived--42 to 41, as follows: YEAS.--John Allen, Bailey Bartlett, James A. Bayard, David Brooks, Christopher G. Champlin, James Cochran, William Craik, Samuel W. Dana, John Dennis, William Edmond, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, William Matthews, Lewis R. Morris, Harrison G. Otis, Isaac Parker, John Read, John Rutledge, junior, James Schureman, Samuel Sewall, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, and John Williams. NAYS.--George Baer, jun., Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Stephen Bullock, Dempsey Burges, John Chapman, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, Joshua Coit, Thomas T. Davis, John Dawson, George Dent, Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, Josiah Parker, William Smith, Richard Sprigg, jr., Richard Stanford, Thomas Sumter, Abram Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, Robert Williams, and Matthew Locke. Mr. SITGREAVES moved to postpone the consideration of these resolutions for two weeks, which motion was seconded by Mr. J. PARKER. Mr. VENABLE inquired whether it was in order to take any further question upon the resolutions, the original motion having been negatived. The SPEAKER answered, that the question on reference having been disagreed to, the resolutions themselves are now before the House. Mr. VENABLE said, he had thought it was not in order to enter again upon the consideration of these resolutions, after the question which had been taken upon them. He knew that, to suffer them to lie on the table, could have no effect upon the people of this country, but it might have effect on the conduct of a foreign nation, as, when they heard such resolutions were under consideration, and of course likely to be adopted, they might anticipate their being carried into law, and proceed to seize the property of our citizens in their ports. If this motion were to be negatived, or withdrawn for the present, it might be brought forward again, whenever gentlemen shall think it ought to be adopted. He was as much opposed to the suspension, as he was against the reference of these resolutions. Mr. MACON hoped the consideration of these resolutions would not be postponed. It was a little curious that a gentleman who was a few minutes ago against a postponement for a week, was now become an advocate for a postponement for a fortnight. The SPEAKER said, the two questions were different. Mr. RUTLEDGE rose to make this observation: That members opposed to the former motion for postponement, when a mere question of reference was under consideration, might with propriety be in favor of it when the question comes to be final upon the resolution. Mr. R. wished gentlemen to use their victory with moderation. He believed the country was big with expectation that spirited measures would be entered into. He did not believe they approved of the half-measures which Congress took. Indeed, the countries which France had overcome, had been overcome chiefly from their taking half-measures while France had taken whole measures. He hoped the postponement would be agreed to; as if the next advices from our Envoys are not more favorable than the last were, he supposed there could be no hesitation in agreeing to have these resolutions carried into effect, and to reject them would have a mischievous effect. Mr. LYON called for the yeas and nays on the question, but as one fifth of the members present did not rise in favor of it, the question was not carried. Mr. DAVIS wished the mover to withdraw his resolution. The question on postponement was put and carried--44 to 40. _Alien Enemies, &c._ Mr. SEWALL, from the Committee for the Protection of Commerce and the Defence of the Country, reported the bill respecting alien enemies, newly modified, which was some days ago recommitted to the committee for that purpose. Also, a bill authorizing merchant vessels to defend themselves against French depredations. This bill authorizes the commanders and crews of merchant vessels to oppose the attack or search of any French armed vessel, and to repel any such search or attack by force, and to capture the vessels making such attack. All such captures to go--one-half to the owner of the vessel making the capture, and the other half to the captors. No armed merchant vessel to be suffered to clear out but such as is owned by citizens of the United States, who, together with the commander, shall enter into bond that she shall not commit any outrage against the vessels of any nation at amity with the United States, and that said vessel shall not, during her voyage, carry any articles contraband of war. A bill was received from the Senate entitled "An act concerning aliens." This bill goes to authorize the PRESIDENT OF THE UNITED STATES to order all such aliens as he shall deem dangerous to the United States to depart out of its territory; and if, after such order, any such alien shall be found at large, he shall be imprisoned for three years, and for ever after deprived of the privilege of becoming a citizen of the United States. And if any alien shall return to this country, after he shall have been sent out of it, he shall be imprisoned and kept to hard labor for life. And all commanders of vessels who shall arrive in any of the ports of the United States after the 1st day of July next, shall make a report in writing of all aliens who shall come passengers on board their vessels, giving an account of their age, profession, description of their person, &c., on pain of forfeiting three hundred dollars. These bills were severally made the order of the day for Monday. SATURDAY, June 9. Mr. J. PARKER moved that the bills, with the amendments of the Senate to them, for altering the time of entering stills, and for the more effectual collection of the internal revenues, be referred to a select committee. Agreed to. The House spent the remainder of the day principally in going through a very long bill to provide for the valuation of lands and dwelling houses, and the enumeration of slaves within the United States, previously to the laying a direct tax on them. The bill was gone through in the Committee of the Whole, without any debate of consequence, except as to what related to filling the blanks intended to contain the amount to be appropriated for carrying the law into execution, the salary of the Commissioners, Assessors, &c. The committee had leave to sit again. No other business of importance was done this day. MONDAY, June 11. Mr. HARPER, from the Committee of Ways and Means, reported a bill providing for the enumeration of the inhabitants of the United States; which was committed for Wednesday. WEDNESDAY, June 13. _Direct Taxes._ The bill providing for the valuation of houses and lands and the enumeration of slaves within the United States, was then read the third time, and upon the question being put "Shall this bill pass?" Mr. DAVIS said, he was under the necessity of opposing the passage of this bill. No part of the community would contribute more cheerfully, to the extent of their ability, to the support of the General Government, than his constituents; but, from the knowledge he had of their situation; of the scarcity of circulating medium amongst them; and from the want of a market for their surplus produce, he could not give his vote in favor of a tax, which it would be with great difficulty they would be able to pay. The people of Kentucky, he said, had produce of every kind, in abundance, but they want a market for it. The Mississippi had lately promised a medium through which to transport it, but as yet, little advantage has been derived from it; and whenever a war shall take place, it may be expected that they would be deprived of the advantages which the free navigation of that river promises to the Western country. Mr. D. said, when he came from home he did not think the coin in circulation, in Kentucky, amounted to $10,000; and, since that period, he was informed that money had become still more scarce. If he thought the tax would be paid without great difficulty he would have cheerfully voted for it; but believing the contrary, he was constrained to give his vote against it. Mr. W. CLAIBORNE said, the people of Tennessee are, in a great degree, similarly situated with those of Kentucky. Every one enjoyed the necessaries of life, but few of them experience those conveniences which flow from wealth. Money is a scarce article amongst them; and when he reflected upon the present situation of things, and the probability there is, that the avenue which was lately opened for the disposal of the surplus produce of the State would soon be closed, he feared his constituents would be illy able to pay this tax. But if, as the gentleman from North Carolina (Mr. MACON) on a former occasion suggested, he should be mistaken in this respect, and that the people of Tennessee are well able to pay the tax, he should rejoice in the event. Fearing the contrary, however, when he heard the people complaining of this grievous burden, he wished to have the consolation of saying, "I did not consent to this law, because I was of opinion that its operation would be particularly oppressive to the Western people." Mr. GALLATIN observed, it would be extremely difficult to point out any mode of taxation which will not be inconvenient and oppressive, in some degree, for some part of the people to pay; and it must be expected that every mode which can be adopted, will bear more hardly on some parts of the community than on others. With respect to the tax on land, he must agree with the gentleman from Kentucky and Tennessee, that, from there being a less quantity of circulating medium in their States than any other State of the Union, it would probably fall heavier upon their constituents than upon people of the Atlantic States. But there is one circumstance with respect to those States which ought to be taken into consideration, viz: that the tax for this year will be laid according to the old census taken seven or eight years ago; since which time, it is well known that the population of these States has more than doubled. Therefore, the inconvenience of paying this tax will be greatly lessened to these States by that circumstance. In the State of Tennessee, by the old census taken in 1791, there were only 35,000 inhabitants, whereas, by a census taken in that State by themselves, two years ago, the number exceeded 60,000. Besides, it appeared to him that both the gentlemen assumed a principle by no means ascertained, viz: that the Mississippi will be shortly closed to the Western country. No people could suffer more by such an event than the people whom he himself represented. They stood precisely in the situation of the constituents of those gentlemen; and undoubtedly, if our present difficulties with France should produce a war with Spain, it would be extremely fatal to his constituents as well as theirs. But he knew of no reason for supposing this; and it would be wrong to legislate on a presumption that such will be the case. In relation to this law, it was not formed, Mr. G. said, altogether to his wish; but it was as nearly so as he could get it, and it was necessary the money should be raised. He had opposed, as long and as forcibly as he was able, most of the measures which made the great expenses of the present session necessary; but a majority having determined that the expense shall be incurred, and that measures shall be taken which will necessarily decrease our present revenue, it has become the duty of every member to provide the means for paying the expense to be incurred, and for supplying the probable deficiencies of former revenues. If the expense is to be provided for, how is it to be done? It must be either by taxation or by loans. Indeed, it is probable that Congress will be obliged to resort to loans, even during the present session; but certainly it is their duty, as far as they are able, to provide for the public expenses, without going into measures which will increase the public debt. Our choice lies, therefore, between loans and taxation; and however inconvenient it may be to the people to pay taxes, he should certainly resort to taxes rather than loans. And if the money is to be raised by taxes, to what objects can we turn our attention? Congress must have recourse to internal revenue, or an increase of duty on the importation of some of the necessaries of life. Indeed, after turning his attention very seriously to the subject, he could not find how any considerable revenue could be raised, but by means of a direct tax on land and houses, or a tax on salt. He did not think any other could be relied upon; and, between the two, he believed it would be infinitely better, both for the United States and his constituents, to lay a tax on land and houses than on salt. The tax on land and houses will be laid according to the value of the property; and though there is less circulating medium in the back country, which is thinly settled, than in the larger towns, the property in those parts will be estimated at a much lower rate, and of course the people will have a smaller proportion of the tax to pay; and he thought it far preferable to lay a tax which would fall, in a great degree, upon persons according to their wealth, than one which would operate as a _poll tax_, (as a tax on salt would do,) according to their number. Mr. DAVIS said, he believed he could prove to the gentleman from Pennsylvania (Mr. GALLATIN) that his conclusions with respect to the ability of the people of the State of Kentucky to pay this tax, were not altogether correct; and that the number of the people inhabiting the State now, being double what it was when the last census was taken, will afford them no relief. For, if there were $10,000 in circulation in the State, when there were only 30,000 inhabitants, and no more, now there are 150,000--the tax would fall no lighter now than it would have fallen then. How, it might be inquired, does it happen that, though the population is so greatly increased, no increase should have been made in the quantity of circulating specie? It happens thus: Men who emigrate from the Atlantic States to this country, seldom bring much money with them; for, whatever they may have when they set out, it is expended on their journey, or paid for land to a single person when they reach us, so that none of their money comes into general circulation and though the people are able to raise plenty of produce, they are not able to exchange it for money. It is true, the more inhabitants they get, the more the general property of the State is increased, but it did not increase the circulating medium. He did not believe there is now so much money in circulation as there was when the census was taken. There was then an army there, and produce sold for a good price; but since a peace was made with the Indians, money has been constantly draining off from the State, to pay the debts which the merchants of that State had contracted whilst trade was brisk in this and other cities. Mr. S. SMITH did not think the fears of the gentlemen from Kentucky and Tennessee would be realized. It is no doubt true that the quantity of circulating specie in Kentucky had diminished since the peace with the Indians; but it is also true that the spring trade this year from Kentucky by the Mississippi has been both great and profitable. But gentlemen suppose, if we have a war with France, we shall also be at war with Spain, and our intercourse by that river will be cut off. But the interest of Spain will be against this; for in case of war, there will be great difficulty in getting flour to the Havana from the Atlantic ports, as our West India trade will be cut off, and they will have to depend upon a supply by the Mississippi. Besides, if produce be so much cheaper in the Western country than in the Atlantic States, as it has been stated to be, it will become the interest of neutrals in the Atlantic cities, to make remittances by produce from that country to the Havana. And if Spain should be drawn into the war, there would be other modes of the people of those States disposing of their produce. He did not think, therefore, gentlemen from that country need be so much alarmed as they appeared to be. Mr. J. WILLIAMS had always been opposed to every system of direct taxes; but as a majority of the House had agreed to call forth the resources of the country by this means, he must give his vote for this bill. He was astonished to find the gentlemen from Kentucky and Tennessee opposing this bill, when so much of the money of the General Government had been expended in that country. They must acknowledge their States have had their portion of specie from the Treasury of the United States. An act had indeed been passed during the present session for paying a company of militia for a certain expedition in Tennessee, which amounted to nearly one fourth of the whole sum required from that State. He believed some of the troops of the United States are also now there, and likely to continue, so that they are constantly receiving supplies of cash from the Treasury of the United States. Besides, it ought to be considered that this tax will fall upon unimproved, as well as improved land, many of the owners of which, he supposed, lived out of that State, which would reduce the portion of the tax to the State. The district in which he lived would pay more tax than the whole State of Tennessee. He knew the tax would be collected in some places with difficulty, and more so, since the bill had undergone a change which had thrown the tax upon land more than it would otherwise have fallen. But, whatever difficulty may attend the collection of this tax, when we see the ruinous effects of public debt in other countries, we ought to be cautious how we make extensive loans, and endeavor to draw forth the resources of the country, to meet any of the expenses which we may have to encounter. Mr. VARNUM should vote against this bill. He had always thought, since the establishment of the present Government, that there would be no necessity for resorting to direct taxes, except in case of our being engaged in war. He believed the measures already taken would not require a direct tax if no further expenses were contemplated. But he now believed a majority of the Government of the United States are determined on war, and he would, on that account, have given his vote for the bill, if the tax was proposed to be laid on just and equal principles. It was his opinion, that every species of property ought to be taxed, as well as houses and land. So far from this being the case, he believed that between one third and one half of the property taxed by the State Legislatures, in their system of direct taxes, would, by the present plan, be excused altogether from tax. Some of the most wealthy people in the Union would, by this means, be untaxed, in a great degree, while persons who hold a small property in houses or land, will bear the burden of it; and not only of this tax, but to any further extent to which the Government may have occasion to carry it. Mr. T. CLAIBORNE had opposed many of the measures which made this tax necessary; but a majority of Congress having determined upon a certain course of measures, however contrary they may be to his opinion, he should cheerfully submit to them, and vote in favor of this bill. The people of Virginia, if they must be taxed, wished to be taxed in a direct way, and he doubted not this tax would be paid with alacrity. They always had been, and would continue to be, he had no doubt, prompt in their obedience to the laws of the General Government. The yeas and nays were then taken upon the passing of the bill; it was passed--69 votes to 19. _Resolved_, That the title be, "An act to provide for the valuation of lands and dwelling houses, and the enumeration of slaves, within the United States." THURSDAY, June 21. _Relations with France._ In the course of the sitting, the following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives:_ While I congratulate you on the arrival of General Marshall, one of our late Envoys Extraordinary to the French Republic, at a place of safety, where he is justly held in honor, I think it my duty to communicate to you a letter received by him from Mr. Gerry, the only one of the three who has not received his congé. This letter, together with another from the Minister of Foreign Relations to him, of the third of April, and his answer of the fourth, will show the situation in which he remains, his intentions and prospects. I presume that, before this time, he has received fresh instructions, (a copy of which accompanies this message,) to consent to no loan, and therefore the negotiation may be considered as at an end. I will never send another Minister to France, without assurances that he will be received, respected, and honored, as the representative of a great, free, powerful, and independent nation. JOHN ADAMS. UNITED STATES, _June 21, 1798_. PARIS, _April 16, 1798_. MY DEAR SIR: This, I expect, you will receive by my colleague, General Marshall, who carries with him the last letter of Mr. Talleyrand to the American Envoys, and their answer. On the day when we sent the answer, I received a letter from the Minister, a copy of which and my answer is enclosed. I have not sent these to the Secretary of State, because I have not time to prepare a letter to accompany them. Indeed, I expected my passport with my colleagues, but am informed the Directory will not consent to my leaving France; and to bring on an immediate rupture, by adopting this measure contrary to their wishes, would be, in my mind, unwarrantable. The object of Mr. Talleyrand, you will perceive, was to resume our reciprocal communications, and again to discuss the subject of a loan. I thought it best, in my answer, not merely to object to this, but to every measure, that could have a tendency to draw me into a negotiation. I accepted of this mission, my dear sir, to support your Administration, and have brought myself into a predicament,[36] which you must assist me to extricate myself from, by appointing some others to supply the places of myself and colleagues, if a further progress in this business should be found practicable. I have only a moment to add my best respects to your lady, and my assurance of the most sincere and respectful attachment. My dear sir, yours, sincerely, E. GERRY. The PRESIDENT OF THE UNITED STATES. [TRANSLATION.] PARIS, _the 4th Germinal, 6th year of the French Republic, one and indivisible, April 3, 1798_. The Minister of Foreign Relations to Mr. Gerry, Envoy Extraordinary of the United States of America to the French Republic. I suppose, sir, that Messrs. Pinckney and Marshall have thought it useful and proper, in consequence of the intimations given in the end of my note of the 28th Ventose last, and the obstacles which their known opinions have interposed to the desired reconciliation, to quit the territory of the Republic; on this supposition, I have the honor to point out to you the 5th or the 7th of this decade, to resume our reciprocal communications upon the interests of the French Republic and the United States of America. Receive, I pray you, the assurances of my perfect consideration. CH. MAU. TALLEYRAND. MONDAY, June 25. _Alien Enemies._ On motion of Mr. S. SMITH, the House went into a Committee of the Whole on the bill respecting alien enemies. The Chairman stated, that when this bill was formerly under consideration, a motion was made to strike out the first section, which was negatived. He proceeded to read the second. Mr. OTIS hoped the committee would rise. He made this motion with a view of moving, in the House, a postponement of the consideration of this bill until the next session of Congress. He did not know that there was any immediate necessity for it, the PRESIDENT having sufficient power over aliens by the bill already passed. Mr. GALLATIN said, he did not expect a motion of this kind. If any bill respecting aliens was necessary, it was certainly a bill of this kind against alien enemies; but a bill having been passed against aliens generally, the gentleman from Massachusetts appears now to be willing to pass by the bill against alien enemies. This gives a new coloring to the business, and it seems as if gentlemen were more desirous of guarding against alien friends than alien enemies. It is true, if this bill is not passed, the PRESIDENT OF THE UNITED STATES will have the power of removing from the country all those aliens whom he may think it necessary and proper to be removed, whether they are alien enemies or alien friends. But, if alien enemies are really dangerous, it cannot be supposed that the PRESIDENT can remove them all. This bill, therefore, provides in what manner they may be laid under certain restraints by way of security. Mr. OTIS interrupted Mr. G. to say he would withdraw his motion. He made it, because he expected the bill would have been objected to by the gentleman from Pennsylvania and his friends. Since they were agreeable to pass it, he had no objection to it. The committee rose and reported the bill, and it was ordered to be read a third time to-morrow. THURSDAY, July 5. _Punishment of Crime._ SEDITION. A bill was received from the Senate in addition to the act for the punishment of certain crimes against the United States, which was read the first time. [This bill provides, that if any persons shall unlawfully combine or conspire together, with intent to oppose any measures of the Government of the United States, or to impede the operation of any law, or to intimidate or prevent any person holding an office under the Government from exercising his trust. And if any person shall, by writing, printing, or speaking, threaten such officer with any damage to his character, person, or estate, or shall counsel, advise, or attempt to procure any insurrection, riot, &c., whether such attempt shall have the desired effect, or not, he shall be deemed guilty of a high misdemeanor, and punished by a fine, on conviction, not exceeding $5,000, and by imprisonment not less than six months, nor exceeding five years. And if any person shall, by any libellous or scandalous writing, printing, publishing, or speaking, traduce or defame the Legislature of the United States, by seditious or inflammatory declarations or expressions, with intent to create a belief in the citizens thereof, that the said Legislature in enacting any law, was induced thereto by motives hostile to the constitution, or liberties and happiness of the people thereof; or shall in manner aforesaid, traduce or defame the PRESIDENT OF THE UNITED STATES, or any Court, or Judge thereof, by declarations tending to criminate their motives in any official transaction, the persons so offending, being convicted shall be punished by a fine not exceeding $2,000 and by imprisonment not exceeding two years.] Mr. OTIS moved that it be read a second time. Mr. HARRISON called for the reading of the amendments to the constitution. The SPEAKER said, the only motion in order, if objections were made to the second reading of the bill, would be to reject the bill. Mr. LIVINGSTON made that motion. Mr. ALLEN.--I hope this bill will not be rejected. If ever there was a nation which required a law of this kind, it is this. Let gentlemen look at certain papers printed in this city and elsewhere, and ask themselves whether an unwarrantable and dangerous combination does not exist to overturn and ruin the Government by publishing the most shameless falsehoods against the Representatives of the people of all denominations, that they are hostile to free Governments and genuine liberty, and of course to the welfare of this country; that they ought, therefore, to be displaced, and that the people ought to raise an _insurrection_ against the Government. In the _Aurora_, of the 28th of June last, we see this paragraph: "It is a curious fact, America is making war with France for _not_ treating, at the very moment the Minister for Foreign Affairs fixed upon the very day for opening a negotiation with Mr. GERRY. What think you of this, Americans!" Such paragraphs need but little comment. The public agents are charged with crimes, for which, if true, they ought to be hung. The intention here is to persuade the people that peace with France is in our power; nay, that she is sincerely desirous of it, on proper terms, but that we reject her offers, and proceed to plunge our country into a destructive war. This combination against our peace is extensive; it embraces characters whose stations demand a different course. Is this House free from it? Recollect what a few days ago fell from the very gentleman (Mr. LIVINGSTON) who now so boldly and violently calls on us to reject this bill at the instant of its coming before us, without suffering it to be read a second time. The gentleman proposed a resolution requesting the PRESIDENT to instruct Mr. Gerry to conclude a treaty with the French Government; and declared that "he believed a negotiation might be opened, and that it was probable a treaty might be concluded which it would be honorable to the United States to accept. He did not wish to frustrate so happy an event by any punctilio, because they had refused to treat with three Envoys, but were willing to treat with one." This is in the very spirit of the malicious paragraph I just now read. It is pursuing the same systematic course of operations. The gentleman also said, (what has not been published, however,) that "the commission of the Envoys being joint and several, Mr. Gerry had unquestionably ample powers to treat alone." Here are circumstances of what I call _a combination against the Government_, in attempts to persuade the people of certain facts, which a majority of this House, at least, and of the people at large, I believe, know to be unfounded. Who can say that Mr. Gerry has power to treat alone, or that the French Government is willing to treat with him on fair and honorable terms? Gentlemen do not believe either, let them say what they will. Does such a commission empower one to exercise the functions of the whole in opposition to the opinions of his colleagues? It would produce the most inextricable confusion. The severalty of the powers is well known always to be a provision against such accidents as may prevent or disable a part of the Commissioners from acting. I mention these things to show what false ideas gentlemen endeavor to impress the public mind with on this subject. The gentleman (Mr. LIVINGSTON) makes his proclamation of war on the Government in the House on Monday, and this infamous printer (Bache) follows it up with the tocsin of insurrection on Tuesday. While this bill was under consideration in the Senate, an attempt is made to render it odious among the people. "Is there any alternative," says this printer, "between an abandonment of the constitution and resistance?" He declares what is unconstitutional, and then invites the people to "resistance." This is an awful, horrible example of "the liberty of opinion and freedom of the press." Can gentlemen hear these things and lie quietly on their pillows? Are we to see all these acts practised against the repose of our country, and remain passive? Are we bound hand and foot that we must be witnesses of these deadly thrusts at our liberty? Are we to be the unresisting spectators of these exertions to destroy all that we hold dear? Are these approaches to revolution and Jacobinic domination, to be observed with the eye of meek submission? No, sir, they are indeed terrible; they are calculated to freeze the very blood in our veins. Such liberty of the press and of opinion is calculated to destroy all confidence between man and man; it leads to a dissolution of every bond of union; it cuts asunder every ligament that unites man to his family, man to his neighbor, man to society, and to Government. God deliver us from such liberty, the liberty of vomiting on the public floods of falsehood and hatred to every thing sacred, human, and divine! If any gentleman doubts the effects of such a liberty, let me direct his attention across the water; it has there made slaves of thirty millions of men. At the commencement of the Revolution in France those loud and enthusiastic advocates for liberty and equality took special care to occupy and command all the presses in the nation; they well knew the powerful influence to be obtained on the public mind by that engine; its operations are on the poor, the ignorant, the passionate, and the vicious; over all these classes of men the freedom of the press shed its baneful effects, and they all became the tools of faction and ambition, and the virtuous, the pacific, and the rich, were their victims. The Jacobins of our country, too, sir, are determined to preserve in their hands the same weapon; it is our business to wrest it from them. Hence this motion so suddenly made, and so violently supported by the mover, to reject this bill without even suffering it to have a second reading; hence this alarm for the safety of "the freedom of speech and of the press." Mr. HARPER said, if, in voting against the rejection of this bill, his vote should be considered as giving his assent to all its provisions, it would be misunderstood. He thought it right and necessary to make a law on the subject; but not exactly such a law as the present, his particular objections to which he should make known when the subject was fully before him. He should vote against a rejection of the bill, because to vote for it, would be to declare that no law ought to be passed to restrict seditious writing and speaking, which was not his opinion. He had often heard in this place, and elsewhere, harangues on the liberty of the press, as if it were to swallow up all other liberties; as if all law and reason, and every right, human and divine, was to fall prostrate before the liberty of the press; whereas, the true meaning of it is no more than that a man shall be at liberty to print what he pleases, provided he does not offend against the laws, and not that no law shall be passed to regulate this liberty of the press. He admitted that a law which should say a man shall not slander his neighbor would be unnecessary; but it is perfectly within the constitution to say, that a man shall not do this, or the other, which shall be injurious to the well-being of society; in the same way that Congress had a right to make laws to restrain the personal liberty of man, when that liberty is abused by acts of violence on his neighbor. Mr. H. knew the liberty of the press had been carried to a very considerable extent in this country. He had frequently seen private character vilely calumniated; he had himself come in for a share of abuse, but he had always despised the base calumniators, believing that a man's propriety of conduct would always be sufficient to shield him against these slanders. When he saw the PRESIDENT OF THE UNITED STATES and the Government of the Union defamed, he still despised them, and he believed also that the people were not affected by them, because he saw they did not rise in insurrection against the Government; and if they had not believed that all the things which were said respecting the Government were vile falsehoods, he should have thought the people the most wretched fools, had they not risen against it. Mr. NICHOLAS was sorry this motion had been made, because it prevents members from going into the modification of the bill, which he was convinced would completely exemplify the folly of the principle; but until gentlemen saw what form the bill was finally to take, it was impossible to speak with precision on its merits; because if the declarations of the gentlemen from Connecticut and South Carolina were attended to, it would be found they are most afraid of the speeches and letters of gentlemen in this House. They acknowledge, however, they cannot prevent members from speaking what they please here. What, then, is their aim? Do they mean to prevent the publication of their sentiments to their constituents and to the world? If this was not their intention, he could not tell what it was. There was one general view of this subject, which Mr. N. took to be the most momentous that this country ever saw. He was ready to go with gentlemen into measures for affording a liberal support to the war, which it appears must be gone into; but he was not ready to create a _domestic tyranny_. The people of this country are competent judges of their own interests, and he was desirous that the press should remain perfectly free to give them every information relative to them; and to restrict it, would be to create a suspicion that there is something in our measures which ought to be kept from the light. It was striking at the root of free republican Government, to restrict the use of speaking and writing. He wished, however, to see the bill put into such a shape as the friends of it themselves might approve. Mr. LIVINGSTON said, after receiving the chastisement of the gentleman from Connecticut on one cheek, he, like a good Christian, had turned the other to the gentleman from South Carolina, and received the stripes of both. He expressed his acknowledgments to these gentlemen, however, if not for their chastisement, for the insight which they had given the House into this bill. They have said, its design is not only to restrict the liberty of the press, which is secured by the constitution, but the liberty of speech on this floor. The gentleman from South Carolina did not say explicitly that he wished this; but he said he was regardless of what was said in the public papers, either of private or personal slander, or of a slander on the Government, until he heard a certain speech delivered in this House; and though he said he did not intend to restrict the liberty of speech in this House, he must have had something of the kind in view. [Mr. HARPER said it was not his intention to restrict the freedom of speech on that floor, but the consequences of it out of doors.] Then, said Mr. L., he will either restrict the members from speaking, or, in some way, prevent the people from knowing what has been said. How is this to be done? By shackling newspapers, and preventing that free communication of sentiment which has heretofore been expressed on public topics. The gentleman from Connecticut had been pleased to read a quotation from some observations which he had made on a former occasion, which that gentleman thought highly blamable. Mr. L. said, what he had read he avowed to be his sentiments. He avowed them with pride, and he trusted he should always avow them with pride. Nor could he see how acts made contrary to the constitution could be binding upon the people; unless gentlemen say Congress may act in contravention to the constitution. [Mr. OTIS asked who were to be the judges?] Mr. L. answered, the people of the United States. We, said he, are their servants, when we exceed our powers, we become their _tyrants_! This is one object of complaint; the other is against newspaper publications. The gentleman from South Carolina has said, that provided the law is clear and well defined, and the trial by jury is preserved, he knew of no law which could infringe the liberty of the press. If this be true, Congress might restrict all printing at once. We have, said he, nothing to do but to make the law precise, and then we may forbid a newspaper to be printed, and make it death for any man to attempt it! If this be the extent to which this bill goes, it is not only an abridgment of the liberty of the press, which the constitution has said shall not be abridged; but it is a total annihilation of the press. Were he then to withdraw his motion, he should consider himself guilty of treason; by his consent, so unconstitutional a measure should not progress an inch. However unsuccessful he might be, he would oppose it in every stage. Mr. OTIS supposed the opposition to this bill arose chiefly from prejudice, as gentlemen could not be so well acquainted with the bill from hearing it once read, as to say there are no parts of it which ought to become law. He had not nicely examined the merits of this bill, but he heard that it contained several important provisions, and he should certainly be opposed to a rejection of it without a perusal. To vote for such a motion, would be to say, we will not examine the bill; and yet he believed there was nothing in it contrary to the common law of the several States of the Union. Mr. MACON had no doubt on his mind that this bill was in direct opposition to the constitution; and that if a law like this was passed, to abridge the liberty of the press, Congress would have the same right to pass a law making an establishment of religion, or to prohibit its free exercise, as all are contained in the same clause of the constitution; and, if it be violated in one respect, it may as well be violated in others. Several laws had been passed which he thought violated the spirit, but none before this which directly violated the letter of the constitution; and, if this bill was passed, he should hardly think it worth while in future to allege against any measure that it is in direct contradiction to the constitution. Laws of restraint, like this, Mr. M. said, always operate in a contrary direction from that which they were intended to take. The people suspect something is not right, when free discussion is feared by government. They know that truth is not afraid of investigation. If, said Mr. M., the people are so dissatisfied with Government as some gentlemen would have it believed, but which he did not credit, by passing a law like the present you will force them to combine together; they will establish corresponding societies throughout the Union, and communications will be made in secret, instead of publicly, as had been the case in other countries. He believed the people might be as safely trusted with free discussion, as they whom they have chosen to do their business. It was a most extraordinary thing, Mr. M. said, that at a time like this, when some gentlemen say we are at war, and when all believe we must have war, that Congress are about to pass a law which will produce more uneasiness, more irritation, than any act which ever passed the Legislature of the Union. No gentleman, in support of the bill, has gone into the constitutional question; no one has shown what part of the constitution will authorize the passage of a law like this. He believed none such could be adduced. The gentleman from Massachusetts (Mr. OTIS) has said, this bill is conformable to the common law. He knew persons might be prosecuted for a libel under the State Governments; but if this power exists in full force at present, what necessity can there be for this bill? Mr. MCDOWELL was in hopes that when the third article of the amendments to the constitution had been read, that the unconstitutionality of this bill would have been so evident, that it would have been rejected without debate. Mr. McD. was sorry that the gentleman from Connecticut should have thought it necessary to have taken up so much of the time of the House by reading paragraphs from newspapers, which every body had seen; but it might have been expected after the gentleman had taken so much pains to vilify and abuse the printer of one of the papers of this city, a citizen of respectable character and connections, that he should have taken at least some notice of another, called the British printer, who boasts of being a subject of King George, and who is generally supposed to be in the pay of the British Minister--whose paper contains more libels and lies than any other in the United States, and who, notwithstanding, is countenanced by characters whom he was sorry to see have any connection with such a man; whose constant daily business it is to abuse, and render ridiculous, every member of our Government who does not in every thing fall in with the British views. As to what had been said with respect to the circular and other letters of members which have been published, he had seen some of them and heard of others. It was not any thing which the gentleman from South Carolina could say, which would prevent him from speaking and writing his sentiments freely. The gentleman from South Carolina said he had seen a letter in the papers the signature of which he knew. He should be glad to know where he saw the signature to know it? He had seen a letter in Fenno's paper, signed _McDowell_, followed by some violent strictures on the letter, and on the author. The letter he owned to be his, but the insinuations contained in the observations upon it were as false as they were malicious. Mr. HARPER said, he knew the gentleman wrote the letter in question; but he would assure him he did not see it under seal, nor did he break the seal, or write the strictures upon it. Mr. GALLATIN wished that the bill had been committed before any debate had taken place, as in its present stage, any observations on details susceptible of amendment would be out of order; and he must now confine himself to the general question "Does the situation of the country, at this time, require that any law of this kind should pass? Do there exist such new and alarming symptoms of sedition, as render it necessary to adopt, in addition to the existing laws, any extraordinary measure for the purpose of suppressing unlawful combinations, and of restricting the freedom of speech and of the press?" For such were the objects of the bill, whatever modifications it might hereafter receive. The manner in which the principle of the bill had been supported, was perhaps more extraordinary still than the bill itself. The gentleman from Connecticut, (Mr. ALLEN,) in order to prove the existence of a combination against the constitution and government, he communicated to the House--what? a number of newspaper paragraphs; and even most of those were such as would not be punishable by the bill as it now stands. The object of that gentleman in wishing a bill of this nature to pass, extended far beyond the intention of the Senate who had sent down this bill; far beyond, he would venture to say, the idea of any other member upon this floor, besides himself. His idea was to punish men for stating facts which he happened to disbelieve, or for enacting and avowing opinions, not criminal, but perhaps erroneous. Thus one of the paragraphs most obnoxious to the gentleman from Connecticut, was that in which the writer expresses his belief that Mr. Gerry may yet make a treaty with the French Government, his powers being sufficient for that purpose. [Mr. ALLEN said, his charge was against persons making this assertion, when they knew it to be unfounded.] Mr. G. said, he did not understand the gentleman's explanation. He now says that the act he condemns is the assertion of a fact, which may be true, but which the writer himself disbelieves; and thus he wished to punish such men as, according to his caprice, he may suppose guilty of expressing opinions not consonant with their own sentiments. For by what rule of evidence could he discover and know what was really the writer's belief? But, to return, was there any thing criminal in that paragraph? It asserted that Mr. Gerry had powers sufficient to treat. The gentleman from Connecticut denies this to be true. Mr. G. would aver that it was an undeniable fact, as appears evidently from the documents now on the table. They showed that the powers given to the Envoys were joint and several. And, if Mr. Gerry had powers to treat, how could it be criminal to say that he might treat? Or supposing the writer of the paragraph to have said, that he believed Mr. Gerry would treat, could the opinion be charged with any thing but being erroneous? When a paragraph of this nature was held out as criminal, what writings, what opinions could escape the severity of the intended law, which did not coincide with the opinions, and which might counteract the secret views of a prevailing party? The gentleman from Connecticut had also quoted an extract of a letter said to be written by a member of Congress from Virginia, and published in last Saturday's Aurora. The style and composition of that letter did the highest honor to its writer. It contained more information and more sense, and gave more proofs of a sound understanding and strong mind, than ever the gentleman from Connecticut had displayed, or could display on this floor. So far he would venture to say, although he had given but a cursory reading to the letter, and he was altogether at a loss to know what was criminal in it, though he might easily see why it was obnoxious. Was it erroneous or criminal to say that debts and taxes were the ruinous consequences of war? Or that some members in both Houses of Congress uniformly voted in favor of an extension of the powers of the Executive, and of every proposed expenditure of money? Was it not true? Gentlemen of that description avow that, in their opinion, the Executive is the weakest branch of government; and they act upon the ostensible principle that, on that account, its influence and powers must be increased. Look at the laws passed during this session. Look at the alien bill, at the provisional army bill, look at the prodigious influence acquired by so many new officers, and then deny that the powers of the Executive have not been greatly increased. As to the increased rate of expenditure, and the propensity of these gentlemen to vote money, they would not themselves deny it. Was it criminal to say that the Executive is supported by a party? when gentlemen declared that it must be supported by a party. When the doctrine had been avowed on this floor that men of a certain political opinion, alone ought to be appointed to offices; and when the Executive had now adopted and carried into practice that doctrine in its fullest extent? Mr. DANA did not propose to enter into any controversy respecting the honor which some gentlemen seemed disposed to arrogate to themselves, on account of certain sentiments which they have avowed. If any members of that House were ambitious of being distinguished as heralds of calumny and apostles of insurrection, it might serve to show how incorrect were their ideas of what is truly honorable. The bill has two objects in view--it proposed to punish conspiracies and calumnies against the Government. Against this bill, the freedom of speech and of the press has been insisted on; and the bill has been condemned as violating one of the articles adopted as amendments to the constitution. Why is the gentleman from Pennsylvania so very anxious on the subject? Or is it abridged by a law to restrain lying? Could the framers of the constitution intend to guarantee, as a sacred principle, the liberty of lying against the Government? What do gentlemen understand by "the freedom of speech and of the press?" Is it a license to injure others or the Government, by calumnies, with impunity? Let it be remembered, that the uttering of malicious falsehoods, to the injury of the Government, is the offence which it is now intended to restrain; for, if what is uttered can be proved true, it will not, according to this bill, be punished as libellous. What, then, is the rational, the honest, the constitutional idea of freedom of language or of conduct? Can it be any thing more than the right of uttering and doing what is not injurious to others? This limitation of doing no injury to the rights of others, undoubtedly belongs to the true character of real liberty. Indeed, can it, in the nature of things, be one of the rights of freemen to do injury? Let gentlemen consult any writer of established reputation on this subject; let them examine the constitution of their own favorite "terrible" Republic! they will not find the ideas of liberty extended to that indefinite latitude which they advocate on this floor. However, if there are gentlemen who seriously and conscientiously believe that it would be violating the constitution to restrain abuses of the press, by punishing the guilty; if there are gentlemen who believe that malicious calumnies against the Government ought to be uttered and published with impunity, such gentlemen ought certainly not to consent to act further upon this subject. Mr. D. was of a different opinion. He believed that the editor of a newspaper, like the writer of a public history, in the execution of his office, should dare to utter what is true, and dread to utter any thing that is false. Considering, therefore, that the liberty of lying, the privilege of vice, is what is truly intended to be corrected by this bill, how is it possible that gentlemen should appear so anxious to excite clamor against it? For himself, Mr. D. wanted not the liberty of calumny or of conspiracy, and was in favor of the principle of the bill. The question on rejecting the bill, was taken by yeas and nays--yeas 36, nays 47, as follows: YEAS.--David Bard, Lemuel Benton, Thomas Blount, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, John Dawson, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Samuel Smith, William Smith, Richard Sprigg, jun., Richard Stanford, Thomas Sumter, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. NAYS.--John Allen, George Baer, jr., Bailey Bartlett, Jas. A. Bayard, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, George Dent, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William Barry Grove, Robert Goodloe Harper, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, William Matthews, Harrison G. Otis, Isaac Parker, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thos. Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, and Peleg Wadsworth. FRIDAY, July 6. _Abrogation of Treaty with France._ Mr. SEWALL called up the bill from the Senate, declaring the treaty between France and the United States void, and of no effect. Mr. ALLEN wished the resolution that he laid upon the table yesterday, respecting the condition and relation of this country with respect to France, first to be taken up. Mr. SITGREAVES thought it would be proper first to go into a consideration of this resolution. We are, said he, now in a state of war. The House know that, by the distribution of powers under this Government, it is only competent for Congress to declare the country in war; therefore, until that declaration is made by this department, the Executive and Judiciary cannot act in the same way as if the country was at war. In other countries, the Executive Department can create war; but here it cannot. If it shall be considered expedient to declare war in consequence of the repeated aggressions and injuries we have received from the French Republic, and the hostility urged against us, and the necessity there exists of making defence against them, there can be no occasion for declaring the treaties void; because, if war is declared, it is the major proposition, and, of course, includes all the minor propositions. If discussed at all, therefore, it would be proper to discuss the major proposition first. He supposed it was a subject on which the minds of members were made up. Whether, therefore, the vote is affirmative or negative, it would be best to declare, in the first instance, the state of the country. Mr. NICHOLAS hoped, if we are to come to this question of war at all, it might be so taken up as to occupy the least time of the Legislature. The question of setting aside the treaties is evidently included in the other; he hoped, therefore, the proposition of the gentleman from Connecticut, if to be taken up at all, would have a preference. Mr. SEWALL said, if the question of annulling the treaties with France was included in the resolution of the gentleman from Connecticut, he should think it ought first to be taken up; but he did not think this was the case. The gentleman from Connecticut wishes a committee to state what is our relation with respect to the French Republic. How could we say what our relation is, except we determine what is our relation with respect to the treaties subsisting between the two countries? He took the two things to be perfectly distinct. The gentleman from Pennsylvania (Mr. SITGREAVES) seems to conceive that the question whether it will be proper to make a declaration of war against France, is included in this resolution, as he could not be so anxious for the declaration of an historical fact, which, in his opinion, the report on this resolution could only be; for gentlemen could not consider that the constitutional power, placed in Congress to declare war, meant no more than a mere report, whether or not the country is in war. A number of acts have been done, which are indicative of war, and if a report was made as to our situation with the French Republic, it must be reckoned at least a state of hostility. But this would be doing nothing. If it was the intention of any gentleman to propose a declaration of war, such a motion would supersede the necessity of taking up the bill from the Senate; but, as the resolution of the gentleman from Connecticut did by no means go to this, he hoped the bill he had mentioned would be first considered. If he were to give an opinion on the subject, it would be clearly against declaring war at present. As to the Judicial Courts, they would find no difficulty in acting according to the situation of things, without troubling themselves with the nice distinctions which gentlemen seemed inclined to make between a state of war, and a state of hostility. Mr. GALLATIN wished to know, if the House were to go into a Committee of the Whole on the bill from the Senate, whether a declaration of war might not be moved as an amendment to the bill. To his mind, there seemed to be but little difference between saying the treaties are at an end, and declaring war. If such a motion could be received, it would be desirable to know the will of the House upon it. The shortest way of coming at this question would be the best. He wished the SPEAKER to say whether he thought such a motion would be in order. [No answer was given to the inquiry.] Mr. ALLEN considered it best to act always with frankness. He wished, by his resolution, that a committee should inquire into, and declare to the House, and to the country, the true state of our situation with respect to France; and if they should report any measures which should supersede the bill from the Senate, it would be the most fair and open way of getting at the business. The question on taking up the bill from the Senate was put, and negatived--41 to 35. Mr. ALLEN then called up his resolution. It had been said that our negotiation with France is yet carrying on, which he denied, and he wished this resolution to go to a numerous committee to report as to that fact, and as to our situation generally with respect to France. Mr. HARRISON hoped the House would go into a Committee of the Whole on the state of the Union, in order to inquire into what is the state of the country? Those gentlemen who wish war, and are determined to have it, ought to speak out. The world should understand them, and the people ought not to be deceived. He hoped gentlemen would bring forward their declaration of war at once. He had always been, and should now be, opposed to war, but he wanted to put his negative upon it. Mr. HARPER had no objection to go into a Committee of the Whole on the state of the Union, if the gentleman from Virginia had any motion to make, when the House got into that situation. Mr. HARTLEY hoped the resolution before the House would be referred to a select committee, that the House might have a report upon it. He wondered that gentlemen who were against going to war, should wish to press the question of a declaration of it upon the House. Mr. DANA observed that, from what had been now said upon the resolution, he saw no necessity for voting upon it at all. Mr. OTIS spoke in favor of referring the resolution to a select committee, and saw no reason why the House should go into a Committee of the Whole on the state of the Union. Mr. HARRISON said, every one would know he had no proposition to bring forward with respect to war; he wished to remain at peace; but he wished his constituents and the country at large to be informed as to what was to be the state of the country. Seeing, however, that no member is ready to make the declaration which had been so often spoken of, he should withdraw his motion for going into a Committee of the Whole. Mr. SITGREAVES observed, with respect to the allusions of the gentleman last up, as to being prepared for a declaration of war, he confessed he felt no hesitation in saying, that he thought this declaration ought to be made in some form or other. He believed it was the duty of the Legislature to make it. He had thought so for some time; but certain considerations with respect to our Envoys, had prevented its being proposed. Such, he said, was his individual opinion; but he owned he had some scruples about bringing it forward, unless he should be assured, from a comparison of the opinions of gentlemen, such a proposition would receive a respectable and firm support. If he supposed this would be the case, he would make the motion at this moment; and it was because the motion of the gentleman from Connecticut looked towards a declaration, that he was in favor of it. Mr. S. said he had heard it said for months past, by gentlemen of different opinions, that the aggressions of France against this country were lawful cause of war, and all have admitted that it has become a single question of expediency whether we shall declare war, or not. It was said no consideration but that of interest, would prevent its being done, and he did not believe there was any such. We have, said he, for a long time suffered all the mischiefs that can be inflicted upon us in a state of war, and, therefore, the single question is now, whether we will avail ourselves of the advantages which might be derived from declaring war; for, however trifling gentlemen may deem the distinction which he made between a state of hostility and war, he looked upon that distinction as real and material. In case of an invasion taking place before a declaration of war has been made, certain limited authorities are placed in the PRESIDENT, and in the Executives of the several States, with respect to the armed force; but, if a declaration of war has previously taken place, the direction of that force is placed wholly in the hands of the PRESIDENT OF THE UNITED STATES. If this declaration should be made, he should still deem it a war of defence on our part. Mr. S. said he rose to declare his opinion on this point, and to say he was in favor of the motion of the gentleman from Connecticut. Mr. NICHOLAS supposed there could have been no doubt as to the intentions of the gentleman from Connecticut in bringing forward this resolution, though he expected it would have been found necessary to have made it more explicit. If the object was, as he had no doubt it was, to procure a proposition for a declaration of war, he hoped the resolution would be so amended as to embrace that object. At present, it was quite an unmeaning thing. Mr. GALLATIN said, if he understood the resolution, it proposed the appointment of a committee, to declare what is the state of things between this country and France. He could not see with what propriety Congress could declare a statement of facts by a legislative act. It would be a little curious to pass a law to declare Mr. Gerry has no authority to treat with the French Government; or to declare that this room is sixty feet long, or any other fact. If the committee were to report what was necessary to be done, he could see the use of such a report. Mr. LYON observed, that though this resolution was not so explicit as gentlemen might wish, yet such as it was, he was desirous it should pass. He wished to know the state of the country. Some say we are at war; others that we are in a state of hostility; others at peace. He wished to see a report on the subject. He had considered the country as in war for some time; if he was mistaken, he was desirous his mistake should be rectified. If we are at war, it would be well to request the PRESIDENT to get us peace as soon as he can. The question on the resolution was put and negatived, without a division. On motion of Mr. OTIS, the House went into a Committee of the Whole on the state of the Union, to take into consideration the bill from the Senate declaring our treaties with France void and of no effect. The committee being formed, and the bill having been read, Mr. LIVINGSTON called for the reading of the treaties. Mr. GALLATIN thought it would be sufficient to have certain parts of the treaties, which he mentioned, read. Mr. LIVINGSTON consented; but Mr. LYON persisted in the motion for reading the whole. On the question being taken, he only rose in favor of it. The parts of the treaties called for by Mr. G. were read. Mr. SEWALL said, some doubts might be entertained, perhaps, as to the propriety of this measure. It is certainly a novel doctrine to pass a law declaring a treaty void; but the necessity arose from the peculiar situation of this country. In most countries, it is in the power of the Chief Magistrate to suspend a treaty whenever he thinks proper; here Congress only has that power. We have, said he, during this session, in a variety of cases, suspended the treaties in question, by authorizing measures of hostility against France, contrary to the stipulations contained therein. He believed it would be proper, therefore, to set aside these treaties by legal authority. But he confessed to do this, in the manner proposed by the Senate, would, at least, be inconvenient. He could not conceive that the Senate meant to go so far as this bill goes. We ought not to say the treaties are void and of no effect. They must have effect as historical facts; they must have effect, in our appeal to the world, on the ground of their having been violated, and in our claim upon France on account of those violations. There are also other articles which must have effect in case of war. He alluded to the articles which respect the situation of French citizens in this country, or American citizens in France, after war shall have been declared by either power. Mr. S., therefore, proposed a new form of a bill, more simple and with a much shorter preface, viz: "that, whereas the treaties have been in numerous instances violated, they are no longer to be considered as law within the United States," &c. It also proposed that any claim or restraint, stipulated by the said treaties, shall be abrogated and annulled. The CHAIRMAN said this motion was not in order, and could not be received. Mr. NICHOLAS saw no difference between the substitute proposed and the original bill. The gentleman from Massachusetts wished to retain the provision relative to the residence of the citizens of either country, after the declaration of war shall have taken place; but could that gentleman for a moment suppose that he could annul one part of a treaty and preserve other parts? The idea appeared to him a very extraordinary one. Mr. RUTLEDGE hoped the committee would rise, and that the bill would be referred to a select committee. He believed it would be better to declare a part of the treaties void than the whole, which he thought might with propriety be done. Mr. NICHOLAS had no objection to the committee's rising; but he could not believe we could take such parts of a treaty as we liked, and declare the rest void. Mr. DANA believed that the gentleman from Virginia did not rightly apprehend what had been said by the gentleman from Massachusetts. Mr. D. admitted the impropriety of declaring void and of no effect a legal instrument which was originally valid. In his opinion, this impropriety might be avoided, and the object of the bill attained, by a different phraseology. He believed a proper mode of acting upon this business would be, to declare the stipulations of the French treaties no longer obligatory on the United States. This we may justly do, in consequence of their being disregarded by France. As to the effect of such a declaration, he acknowledged that it must be regarded as abrogating all those articles of the treaties which are executory, such as stipulate for the future conduct of the parties. Agreeing thus far with the gentleman from Virginia, he would consent most cheerfully that all such articles should be set aside, as they respect both countries. But the declaration would not have any effect on articles which are executed, such as contain cessions or renunciations of territorial claims, and where a corresponding possession has taken place. The operation of these articles is completed, and cannot be reversed by the declaration now proposed. Mr. D. then moved to amend the enacting clause, by expunging all the words after "That," and substituting "the United States are, of right, freed and exonerated from the stipulations of the treaties heretofore concluded between the United States and France, and that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States." Mr. OTIS approved of this motion, and, after a few observations by him in favor of it, the question was put and carried upon it without a division. Mr. O. then moved to strike out the whole of this preamble; which motion being carried, Mr. DANA proposed that the reasons for passing this bill should be condensed in the preamble, to read as follows: "Whereas, the treaties concluded between the United States and France have been repeatedly violated on the part of the French Government, and the just claims of the United States for reparation of the injuries so committed have been refused; and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity; and whereas, under the authority of the French Government, there is yet pursued against the United States a system of predatory violence infracting the said treaties, and hostile to the rights of a free and independent nation, therefore," &c. The question on the preamble was put and carried--41 to 38. The committee then rose, and the House took up the amendments. On the question being put on agreeing to the new preamble, Mr. BAYARD said he thought it more in detail than was necessary. He thought it more like a State paper than the preamble of a law. He thought the preamble ought to go no further than to state sufficient ground for the act, which was about to be done; and he took it for granted that whenever a nation violates an essential article of a treaty, it is competent for the other party to declare the treaty no longer binding upon them. He, therefore, moved to strike out all the preamble after saying the treaties have been frequently violated. As to the French having committed depredations upon our commerce, and refused to negotiate with our Commissioners, though these circumstances may be a just cause of war, he did not know whether they were sufficient ground upon which to declare a treaty void. Mr. KITTERA was against striking out. He could not agree that there could be causes for a declaration of war, which are not also causes for setting aside a treaty. The reverse of this position appeared to him to be true, viz: that there might be causes for declaring a treaty void, which would not be causes of war. Mr. CRAIK was in favor of the preamble as it stood. Mr. GORDON hoped the amendment would not prevail. It ought to be considered that if this bill passed into a law, it would be considered as a novel thing. It will be tantamount to a State declaration to annul a treaty, and there ought to be the grounds annexed to it which had led to the measure; and though the gentleman from Delaware is desirous of stating a sufficient cause, he did not think his motion went far enough. The practice of nations is, that when injuries are done, reparation is demanded; and it was necessary, in his opinion, to state that this demand had been made in vain, and that the injuries complained of are still continued. Mr. S. SMITH hoped the amendment would be adopted. He disliked preambles very much. The reasons given by the gentleman from Delaware in favor of his motion he thought well founded. It would be much better to give one good reason for declaring the treaties no longer binding, than several doubtful ones. In his opinion there were some of this description as the preamble stands at present. He did not know that a reparation for injuries had been refused by France. He had seen nothing like an absolute demand made upon the French Government. The Envoys were empowered to make the demand; but, from their not having been duly received, the demand was never made. If it were made, it is clear it has not been complied with; but we have no evidence of its having been refused to be complied with. On the contrary, we see that on the 3d of April, Talleyrand had fixed a day on which he proposed to treat with Mr. Gerry on the subject of the disputes between the two countries. We have not heard the result of the conference; but it may have happened that Mr. Talleyrand has offered to make complete reparation for the injuries committed on our commerce, and this intelligence may arrive here a fortnight hence, and then a declaration of this sort would not have a good appearance. He thought, therefore, it would be better to strike these words out than to retain them. Mr. S. presumed it was not yet _sedition_ for him to say that he believed proposals to treat would be made to our Commissioners, independent of any tribute, and such as this country might with honor accept. He hoped, therefore, no difficulty would be placed in the way, by passing the preamble as it now stands. Mr. DANA was not generally in favor of fixing preambles to laws. Whenever the subject is such that it is obviously competent for the Legislature to act upon it; whenever the act proposed is, from its nature, completely within the usual Legislative powers, and, without any explanation, appears perfectly consistent with national honor and propriety, a preamble is unnecessary. But ought this to be said of the subject under consideration? Whence is it that the United States may abrogate the treaties with France? Is it because the Legislature may, at pleasure, set aside a treaty? If it is proper to do this, without any external cause, a preamble is needless in the present instance. According to his view of the subject, the act was founded on a different principle. France has violated the faith pledged by her treaties with America: this, by the law of nations, puts it within the option of the Legislature to decide, as a question of expediency, whether the United States shall any longer continue to observe their stipulations. It is owing to the perfidy of the French Government that the abrogation of our treaties with that nation has become justifiable and necessary. As an American, he hoped the United States would always regard the faith due to treaties, and that all their acts would, on the face of them, appear consistent with it. In this respect, he wished the conduct of the American Government to exhibit a marked contrast to French perfidy. It is of importance to the fairness of our national character. Therefore it is that the facts should be stated which have led to this measure. The gentleman from Delaware, in support of the amendment which he has moved, supposes it sufficient to state one cause for setting aside the treaties. He is understood to admit that a sufficient cause should be stated. In this principle, said Mr. D., we are agreed. But the question arises, whether a violation of the treaties on the part of France is, of itself, sufficient for setting them aside? The idea of Mr. D. was, that it would not be sufficient, according to the liberal principles which should be cherished in the United States. A treaty might be violated by the imprudence of some person in authority, or by persons acting without authority; and yet the foreign Government, on proper representations, might be willing to redress the injury. In such case, it would ill become the Government of the injured party immediately to dissolve friendly connections. Why is it now deemed requisite to abrogate the treaties by which this country has been connected with France? It is because France has not only violated them, but has also refused that attention which was due to our representations on the subject, and persists in the violation. On this account, and in order to show that the United States were completely justifiable in taking the measure, he was against the amendment of the gentleman from Delaware, and in favor of retaining the several clauses of the preamble. A gentleman from Maryland (Mr. SMITH) has declared himself in favor of this amendment, because, in his view, there is no proof that our claim for the injuries committed on our rights, as a neutral nation, have been refused to be adjusted by France. The reason assigned for this opinion is so extraordinary that it may astonish every man acquainted with subjects of this nature. It is, that the French would not receive the Envoys charged with this business, or permit their speaking to them, although they waited for months at the palace-gate of Directorial Arrogance supplicating in vain for an audience. Were the gentleman from Maryland to go himself, or send one of his clerks, to present a demand for a sum justly due to him, if his debtor, instead of discharging or attending to the account, would not consent even to hear him on the subject, but should kick him from the door, or order a servant to do it, would not the gentleman consider such conduct as a refusal to satisfy the demand. He who knows that claims of justice merit the respect of Governments, as well as of individuals, and ought never to be neglected without reasonable cause, must know that evasions, intentional procrastination, and affected delays, are equivalent to a refusal of satisfaction. This is the doctrine of reason, of common sense, of municipal law, and of the law of nations. The facts stated in the preamble, therefore, are strictly true; they are established by the very statement which the gentleman has made to disprove them. And since he has made a question on the subject, it is of additional importance for the Legislature to declare its conviction of their truth. Mr. CRAIK believed with the gentleman from Connecticut, last up, that from the declaration of his colleague this question was of consequence. He believed gentlemen were now called upon to testify to the truth of this statement, since it had been doubted. The people ought not to be left in doubt on this subject. Mr. OTIS said, exactly the same effect which had been produced upon the mind of the gentleman last up, was also produced upon his. Before he had heard the arguments of the gentleman from Maryland in its favor, he intended to vote for the motion of the gentleman from Delaware, as being more concise, and as he thought stating sufficient ground for the act about to be passed; but when that gentleman says we have no evidence of reparation for the injuries committed upon our commerce being refused to be made, the abhorrence he felt at the idea of being ranked among members of this opinion would lead him to vote against it. He believed the facts stated in the preamble unquestionably true, and he did not think there could have been a man in the United States who had a doubt on the subject. He believed there could be no doubt that when a sum of money is neglected to be paid, when due, though the debtor may refuse to see any person authorized to make the demand, that it is legally refused to be paid. If the documents on the table were examined, Mr. O. said it would be found, that so far from Mr. Talleyrand having listened to the claims of our Commissioners, he had expressed his surprise that they should have been made, alleging that the priority of claim was on the part of the French Government. Mr. O. made several other observations, when he concluded by saying, that if any offers of pacification were made by men of the description of those at present in power in the French Directory, he should have no confidence in them: he should think them insidious, and that they originated in their fears, and were intended to effect our ruin. Mr. HARPER said he would say only a few words in justification of his vote in favor of the present motion. He disliked preambles altogether. He voted against the one from the Senate, and he should be in favor of reducing this; for, if we must have a preamble, he thought the less the better. It is the business of the Legislature, Mr. H. said, to pass laws; if a manifesto is proper to be published on this occasion, it would more probably fall under the Executive Department. It is his business to issue State papers, and he could do it much better than it could be done in this House. He was sorry it should be thought necessary to have any preface at all to the law, as it was departing from a good old rule laid down by Congress. Mr. S. SMITH was not convinced, by any thing that had been said against this motion, that what he had before stated was ill-founded. It had been asked whether, if he sent three persons to demand a debt, and the debtor ordered them away without seeing them, he should not consider the act as a refusal to pay. He answered, he should. But he would put a case, which he thought more in point. Were he to send three persons to settle an account with a debtor, and he were to send two of them home again, but keep one, and promise to adjust the business with him, he should naturally expect he would do so, and should not think of proceeding to any rigorous measures with him, until he heard the result. The gentleman from Massachusetts has said that he can never consent to accept of any terms from the present Executive Directory, as he shall consider them insidious, and not to be relied upon. After a two years' war, perhaps, he may be of a different opinion. Mr. S. said he should be as unwilling as any man to accept of any terms from the French Government which would be derogatory to the United States; but if the Directory will engage that all the depredations upon our commerce shall cease, and will offer to treat with us on equitable terms, (which he did not think improbable,) he should be for acceding, most cheerfully, to the proposal. Mr. GALLATIN said he should vote against the motion to strike out a part of the preamble agreed to in the Committee of the Whole. He was of opinion with gentlemen, that it was better to pass laws in general, without preambles; but this proceeding is altogether of a novel nature. He knew of no precedent of a Legislature repealing a treaty. It is therefore an act of a peculiar kind, and it appeared to him necessary that Congress should justify it by a declaration of their reasons. Nor could he understand the argument of the gentleman from South Carolina, when he said the Executive Department was better calculated for the publishing of a manifesto than the Legislature, or, in other words, could assign the reasons that influenced Congress better than Congress themselves. If, then, a preamble is to be adopted, it ought to contain those reasons which operated in producing the law. He thought this would be more correctly stated by leaving the preamble as it is, than by adopting the amendment. There was also another reason for preserving the preamble as at present. The French have violated the Treaty of Commerce made with this country; but it would be rather difficult for any gentleman to show that repeated violations have taken place of our Treaty of Alliance with France. The ground of complaint is, that France has violated the Treaty of Commerce between the two countries, and the laws of nations, and not the Treaty of Alliance; and, therefore, a breach of that treaty is not the reason why it is set aside. Besides, if repeated violations of a treaty are sufficient reasons for setting it aside, it could not be forgotten that certain orders had been issued by another country, which are not conformable to our treaty with that power. So, that it is not sufficient to say, that because a treaty has been violated, we will repeal it; but we ought to show to the world that repeated attempts have been made, in vain, to obtain redress. But the gentleman from Maryland is apprehensive that the statement of the French Government having refused to make reparation for the injuries committed upon our commerce could not be correct, from the possibility of Mr. Gerry having succeeded in making a treaty since the date of our last despatches. He acknowledged there was a bare possibility of the fact being so; but this ought to operate as a reason against passing the bill at all, and not against the preamble. Mr. EDMOND said, he voted for rejecting the Senate's preamble. It appeared to him that no preamble was necessary. For, if it were necessary to state the reasons which induced the passing of this act, it would be proper to state all the reasons, and to do that would be a work of considerable time; and, upon the facts stated, there might probably be a considerable difference of opinion. If reasons were stated for passing this law, and, at a future day, when an adjustment of differences should take place, the negotiator on the part of the United States were to adduce other reasons for passing this act than are stated in this preamble, it might be stated by the negotiator, on the part of France, why do you muster up complaints now, which you did not think of when the law passed? He therefore thought it would be best to pass the law without a preamble at all. No question in the laws of nations, Mr. E. said, was more clear, than that, when a treaty is violated by one nation, the other party, who has maintained good faith, may either discharge themselves from the obligations of it, or, if kindly disposed, they may set on foot a negotiation, or they may declare war, without doing either of the other two. He laid it down as a further principle, that where there are several treaties in existence between two countries, and one of them is violated, the injured party may demand satisfaction; and if it be not given, they may declare the whole of the treaties void. He therefore was of opinion that France having violated our treaty with her, we have a right, without assigning any reason for it, to set it aside; and as we have repeatedly applied to them for redress, and they have refused to grant it, we have a right to reject the whole or to declare war, without assigning any reason whatever. However, if we wish to appear fair in the eyes of the world, we may, if we please, assign a reason for our act; but, in this case, he would either give all the reasons which exist, or make them as precise as possible. He should, therefore, vote in favor of striking out the words in question. The question to strike out was negatived; and the question being taken on the preamble, it was carried--there being 53 votes for it. The bill was ordered for a third reading this day. It afterwards received its third reading, and was passed--yeas 47, nays 37, as follows: YEAS.--John Allen, George Baer, jr., Bailey Bartlett, Jas A. Bayard, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, George Dent, William Edmond, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, Jas. H. Imlay, John Wilkes Kittera, Samuel Lyman, William Matthews, Harrison G. Otis, Isaac Parker, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thos. Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, and Peleg Wadsworth. NAYS.--Abraham Baldwin, David Bard, Thos. Blount, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, John Dawson, Thomas Evans, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Samuel Smith, William Smith, Richard Sprigg, jr., Richard Stanford, Thomas Sumter, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. TUESDAY, July 10. _Punishment of Crimes._ The bill, in addition to the act for punishing crimes against the United States, and for other purposes, was read the third time; when Mr. SITGREAVES wished the bill to be recommitted. It had been suggested to him that great inconvenience arises in the Federal Courts, from its having been conceived that they have not the power to bind to good behavior, and he was desirous of removing this defect, by adding a section to this bill for the purpose. Mr. BAYARD thought the gentleman from Pennsylvania had better bring this subject forward by itself, than have this bill recommitted, as it was no way connected with it. Mr. SITGREAVES consented. The question was now on the passing of the bill. Mr. MCDOWELL called for the yeas and nays upon it. Mr. NICHOLAS rose, he said, to ask an explanation of the principles upon which this bill is founded. He confessed it was strongly impressed upon his mind, that it was not within the powers of the House to act upon this subject. He looked in vain amongst the enumerated powers given to Congress in the constitution, for an authority to pass a law like the present; but he found what he considered as an express prohibition against passing it. He found that, in order to quiet the alarms of the people of the United States with respect to the silence of the constitution as to the liberty of the press, not being perfectly satisfied that the powers not vested in Congress remained with the people, that one of the first acts of this Government was to propose certain amendments to the constitution, to put this matter beyond doubt, which amendments are now become a part of the constitution. It is now expressly declared by that instrument, "that the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;" and, also, "that Congress shall make no law abridging the freedom of speech, or of the press." Mr. N. asked whether this bill did not go to the abridgment of the freedom of speech and of the press? If it did not, he would be glad if gentlemen would define wherein the freedom of speech and of the press consists. Mr. N. wished gentlemen, before they give a final vote on this bill, to consider its effects; and, if they do this, he thought they would consent to stop here. He desired them to reflect on the nature of our Government; that all its officers are elective, and that the people have no other means of examining their conduct but by means of the press, and an unrestrained investigation through them of the conduct of the Government. Indeed, the heart and life of a free Government, is a free press; take away this, and you take away its main support. You might as well say to the people, we, your Representatives, are faithful servants, you need not look into our conduct; we will keep our seats for a little longer time than that for which you have given them to us. To restrict the press, would be to destroy the elective principle, by taking away the information necessary to election, and there would be no difference between it and a total denial of the right of election, but in the degree of usurpation. Mr. OTIS said, the professions of attachment to the constitution, made by the gentleman from Virginia, are certainly honorable to him; and he could not believe that an attachment so deeply engrafted, as he states his to be, would be shaken by this bill. The gentleman had caught an alarm on the first suggestion of a sedition bill, which had not yet subsided; and though the present bill is perfectly harmless, and contains no provision which is not practised upon under the laws of the several States in which gentlemen had been educated, and from which they had drawn most of their ideas of jurisprudence, yet the gentleman continues to be dissatisfied with it. The objections of the gentleman from Virginia, he believed, might be reduced to two inquiries. In the first place, had the constitution given Congress cognizance over the offences described in this bill prior to the adoption of the amendments to the constitution? and, if Congress had that cognizance before that time, have those amendments taken it away? With respect to the first question, it must be allowed that every independent Government has a right to preserve and defend itself against injuries and outrages which endanger its existence; for, unless it has this power, it is unworthy the name of a free Government, and must either fall or be subordinate to some other protection. Now some of the offences delineated in this bill are of this description. Unlawful combinations to oppose the measures of Government, to intimidate its officers, and to excite insurrections, are acts which tend directly to the destruction of the constitution, and there could be no doubt that the guardians of that constitution are bound to provide against them. And if gentlemen would agree that these were acts of a criminal nature, it follows that all means calculated to produce these effects, whether by speaking, writing, or printing, were also criminal. From the nature of things, therefore, the National Government is invested with a power to protect itself against outrages of this kind, or it must be indebted to and dependent on an individual State for its protection, which is absurd. This essential right resulting from the spirit of the constitution, was still more evident in the language of that instrument. The people of the individual States brought with them as a birthright into this country the common law of England, upon which all of them have founded their statute law. If it were not for this common law, many crimes which are committed in the United States would go unpunished. No State has enacted statutes for the punishment of all crimes which may be committed; yet in every State he presumed there was a Superior Court which claimed cognizance of all offences against good morals, and which restrained misdemeanors and opposition to the constituted authorities, under the sanction merely of the common law. When the people of the United States convened for the purpose of framing a federal compact, they were all habituated to this common law, to its usages, its maxims, and its definitions. It had been more or less explicitly recognized in the constitution of every State, and in that of Maryland it was declared to be the law of the land. If, then, we find in an instrument digested by men who were all familiarized to the common law, not only that the distribution of power, and the great objects to be provided for are congenial to that law, but that the terms and definitions by which those powers are described, have an evident allusion to it, and must otherwise be quite inexplicable, or at best of a very uncertain meaning, it will be natural to conclude that, in forming the constitution, they kept in view the model of the common law, and that a safe recourse may be had to it in all cases that would otherwise be doubtful. Thus we shall find that one great end of this compact, as appears in the preamble, is the establishment of justice, and for this purpose a Judicial department is erected, whose powers are declared "to extend to all cases in law and equity, arising under the constitution, the laws of the United States," &c. Justice, if the common law ideas of it are rejected, is susceptible of various constructions, but agreeably to the principles of that law, it affords redress for every injury, and provides a punishment for every crime that threatens to disturb the lawful operations of Government. Again, what is intended by "cases at law and equity arising under the constitution," as distinguished from cases "arising under the laws of the United States?" What other law can be contemplated but common law; what sort of equity but that legal discretion which has been exercised in England from time immemorial, and is to be learnt from the books and reports of that country? If it be answered that these words comprise civil controversies only, though no reason appears for this distinction, yet what is to be done with other terms, with trial, jury, impeachment, &c., for an explanation of all which, the common law alone can furnish a standard? It has been said by the gentleman that the constitution has specified the only crimes that are cognizable under it; but other crimes had been made penal at an early period of the Government, by express statute, to which no exception had been taken. For example, stealing public records, perjury, obstructing the officers of justice, bribery in a Judge, and even a contract to give a bribe, (which last was a restraint upon the liberty of writing and speaking,) were all punishable, and why? Not because they are described in the constitution, but because they are crimes against the United States--because laws against them are necessary to carry other laws into effect; because they tend to subvert the constitution. The same reasons applied to the offences mentioned in the bill. Mr. MACON said, the same section of the constitution which forbids any interference with the freedom of speech and of the press, extends also to religious establishments, and says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This bill ought to be considered, therefore, as the commencement of a system which might as well be extended to the establishment of a national religion, as to a "restraint of speech, and of the press." He acknowledged the bill was less exceptionable than when it came from the Senate; but it yet contained the principle which he considered as violating the constitution. Mr. M. said, he had attended to all that had been said in support of this bill; but could find nothing like argument in it. When the words of the constitution were so express, it seems impossible they could be understood as the gentleman from Massachusetts had represented them. Several authorities, Mr. M. said, had been read to show that this bill will form a constitutional law. He believed, however, far more might be adduced to show the reverse. He believed the best way of coming at the truth of the construction of any part of the constitution, was, by examining the opinions that were held respecting it when it was under discussion in the different States. Mr. M. then proceeded to quote the opinions of the leading members in several of the State conventions, in order to show, from the opinions of the friends of the constitution, that it was never understood that prosecutions for libels could take place under the General Government; but that they must be carried on in the State courts, as the constitution gave no power to Congress to pass laws on this subject. Not a single member in any of the conventions gave an opinion to the contrary. The following are the words of Judge Iredell, of North Carolina, on the occasion. Judge Wilson, of this State, and several others, were equally strong; but we have them not at hand, and if we had, to give extracts from the whole would occupy too much room. In the Convention of North Carolina, in reply to a member who had said that the General Government might make it treason to write against the most arbitrary proceedings, but who, it appears, afterwards corrected himself, and said he meant only misprision of treason, and only that it might be done within the ten miles square, where they were to have exclusive legislation, Judge Iredell, thus spoke: "Where is the power given them to do this? They (Congress) have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; but they have no power to define _any other crime whatever_. This shows how apt gentlemen are to commit mistakes. The powers of the Government are particularly enumerated and defined. They can claim no others but such as are so enumerated. In my opinion, they are excluded as much from the exercise of any other authority, as they could be by the strongest negative clause that could be framed." Gentlemen, Mr. M. said, might call this a harmless bill; but however harmless it may be, it is a beginning to act upon forbidden ground, and no one can say to what extent it may hereafter be carried. He thought this subject of the liberty of the press was sacred, and ought to be left where the constitution had left it. The States have complete power on the subject, and when Congress legislates, it ought to have confidence in the States, as the States ought also to have confidence in Congress, or our Government is gone. This Government depends upon the State Legislatures for existence. They have only to refuse to elect Senators to Congress, and all is gone. He believed there was nowhere any complaint of a want of proper laws under the State Governments; and though there may not be remedies found for every grievance in the General Government, what it wants of power will be found in the State Governments, and there can be no doubt but that power will be duly exercised when necessity calls for it. Mr. LIVINGSTON said, that notwithstanding the sarcasms which had been thrown out against those who oppose this measure; notwithstanding that kind of accommodating principle which has been set up and reiterated, that the powers of this constitution extend to every possible case--a principle which goes to the destruction of State authorities, and makes that instrument mean any thing or nothing--notwithstanding this, he should again venture to engage the attention of the House while he endeavored to show that this bill is not only contrary to the spirit, but to the direct letter of the constitution. The constitution declares that "no law shall be passed to abridge the liberty of speech or of the press." Let us inquire, said Mr. L., what was the liberty enjoyed at the time this declaration was agreed to, and see whether citizens will enjoy the same liberty after this law passes that they then enjoyed. Will gentlemen say that the same liberty of writing and speaking did not exist then that now exists? If they will not say this, must they not allow that the constitution is positive in prohibiting any change in this respect? Gentlemen may call this liberty an evil, if they please; if it be an evil, (which he was far from believing,) it is an evil perpetrated by the constitution. The constitution seems to have contemplated cases which might arise at a future day. It seems to have foreseen that majorities (far be it from him to believe the present majority is of the number) might be actuated by dispositions hostile to the Government; that it might wish to pass laws to suppress the only means by which its corrupt views might be made known to the people, and therefore says, _no_ law shall be passed to abridge the liberty of speech and of the press. This privilege is connected with another dear and valuable privilege--the liberty of conscience. What is liberty of conscience? Gentlemen may to-morrow establish a national religion agreeably to the opinion of a majority of this House, on the ground of a uniformity of worship being more consistent with public happiness than a diversity of worship. The doing of this is not less forbidden than the act which the House are about to do. But, it is said, will you suffer a printer to abuse his fellow-citizens with impunity, ascribing his conduct to the very worst of motives? Is no punishment to be inflicted on such a person? Yes. There is a remedy for offences of this kind in the laws of every State in the Union. Every man's character is protected by law, and every man who shall publish a libel on any part of the Government, is liable to punishment. Not, said Mr. L., by laws which we ourselves have made, but by laws passed by the several States. And is not this most proper? Suppose a libel were written against the PRESIDENT, where is it most probable that such an offence would receive an impartial trial? In a court, the judges of which are appointed by the PRESIDENT, by a jury selected by an officer holding his office at the will of the PRESIDENT? or in a court independent of any influence whatever? The States are as much interested in the preservation of the General Government as we are. We do wrong when we attempt to set up interests independent of the States. They are all desirous of preserving the constitution as it now stands; and it is, therefore, much more probable that justice will be found in a court in which neither of the parties have influence, than in one which is wholly in the power of the PRESIDENT. The bill was then passed--yeas 44, nays 41, as follows: YEAS.--John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, David Brooks, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, Samuel W. Dana, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, Harrison G. Otis, Isaac Parker, John Read, John Rutledge, jun., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, and Peleg Wadsworth. NAYS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Stephen Bullock, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, John Dawson, George Dent, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, William Matthews, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Samuel Smith, William Smith, Richard Sprigg, jun., Richard Stanford, Thomas Sumter, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. FRIDAY, July 13. _Capture of French armed vessels._ The House went into a Committee of the Whole on the bill for encouraging the capture of French armed vessels by armed vessels belonging to citizens of the United States; which was agreed to without debate or amendment, and ordered to be read a third time to-day. It was accordingly immediately read a third time; when Mr. MCDOWELL said, he hoped this bill would not pass. Congress had already passed laws authorizing public and private armed vessels to attack and take French vessels; but they are now called upon to give a bounty upon the guns that are brought in, according to their size. He was not willing to allow this. It would open a door to innumerable frauds. Plans would be laid between the owners of privateers here and their friends in the West Indies, and vessels and arms would be thrown in their way for the purpose of capture, and in this manner our Treasury would be drained to an extent which no man could at present foresee. He could see no use in the provision, as it would not induce merchant vessels to go in search of French vessels; and, without some unfair play, it would never be worth the while of persons fitting out privateers for the purpose. He called the yeas and nays upon it. They were taken accordingly, and were, yeas 34, nays 36, as follows: YEAS.--John Allen, Bailey Bartlett, James A. Bayard, David Brooks, Christopher G. Champlin, Joshua Coit, William Craik, Samuel W. Dana, William Edmond, Abiel Foster, Dwight Foster, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, Harrison G. Otis, Isaac Parker, John Read, John Rutledge, jun., James Schureman, Samuel Sewall, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, George Thatcher, Mark Thompson, and John E. Van Allen. NAYS.--David Bard, Thomas Blount, Richard Brent, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, John Dawson, George Dent, Albert Gallatin, James Gillespie, William Barry Grove, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Samuel Smith, William Smith, Richard Sprigg, jr., Richard Stanford, Thomas Sumter, Thomas Tillinghast, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. And so the said bill was rejected. SATURDAY, July 14. The hour having arrived, at which the call of the House was to be made, the names of the members were called over, eighty-two members (including the Speaker) appeared in their seats, twenty-three absent, twenty of whom have leave, one sick, and two for whom excuses were made, and received by the House. _Capture of French vessels._ Mr. SITGREAVES, called up for decision the resolution he laid on the table yesterday, viz: _Resolved_, That a committee be appointed to prepare and bring in a bill for giving a bounty on the capture of French armed ships or vessels, by armed ships or vessels owned by a citizen or citizens of the United States. The question on the resolution, was then put and negatived--yeas 40, nays 41. And so the motion was rejected. MONDAY, July 16. _Intercourse with France._ Another bill was received from the Senate, to amend the act for suspending the commercial intercourse between the United States and France and her dependencies. Mr. NICHOLAS moved to postpone this bill till next session. Mr. HARPER hoped not. This bill, he said, was very different from the one which had been negatived. That proposed to dispense with sureties altogether; this only to lower the amount of the bond. Instead of the owner giving security in a sum equal to the amount of vessel and cargo, and finding two sureties in half the sum, this bill proposes that the owner and master shall be bound in a sum equal to the amount of the value of the vessel, and a surety in from one to ten thousand dollars. To exact a bond equal to the amount of the vessel and cargo in every case, would be very inconvenient. They are sometimes very valuable. There is now, he said, a vessel in this port ready to sail, whose cargo is worth $300,000. To exact from the owner a bond to the full amount, and two sureties in half the sum, would be requiring a very heavy security from them. It would be sufficient, he thought, to require a bond equal to the profit which it is probable would be derived from any voyage. Mr. S. SMITH said, this bill was certainly very different from that which had been rejected by this House, though it did not meet with his approbation at present. It was capable, however, of amendment. The security at present proposed was not worthy of the name. Had he a ship ready to sail such as the gentleman last up had named, he would willingly forfeit the sum proposed, to have the privilege of sending her to a French market. The difference in price between a French and a Hamburg market would make it well worth his while to do so. In many cases, such a voyage would afford 50 per cent. A regulation something like the present could only secure the fair trader; but the surety must be a much larger sum than $10,000. The committee rose, however, and Mr. SMITH renewed his amendment in the House, when it was agreed to, after some objections to it from Mr. BAYARD--36 to 28. The bill was then ordered to be read a third time, received its third reading, and passed. The House having received all the bills from the PRESIDENT, and the business of the two Houses being finished, the SPEAKER adjourned the House till the first Monday in December next. FIFTH CONGRESS.--THIRD SESSION. BEGUN AT THE CITY OF PHILADELPHIA, DECEMBER 3, 1798. PROCEEDINGS IN THE SENATE. MONDAY, December 3, 1798. The third session of the fifth Congress commenced this day, conformably to the provision of the constitution, and the Senate assembled at the city of Philadelphia, in their Chamber. PRESENT: JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire. THEODORE FOSTER and RAY GREENE, from Rhode Island. WILLIAM BINGHAM, from Pennsylvania. HUMPHREY MARSHALL, from Kentucky. JACOB READ, from South Carolina. JAMES GUNN, from Georgia. DANIEL SMITH, appointed a Senator by the Executive of the State of Tennessee, in the recess of that Legislature, in place of Andrew Jackson, resigned, took his seat in the Senate. The members present not being sufficient to form a quorum, the Senate adjourned to 11 o'clock to-morrow morning. TUESDAY, December 4. HENRY LATIMER, from the State of Delaware, attended. The members present not being sufficient to form a quorum, adjourned. WEDNESDAY, December 5. BENJAMIN GOODHUE, from the State of Massachusetts; ELIJAH PAINE, and NATHANIEL CHIPMAN, from the State of Vermont; JOHN LAURANCE, from the State of New York; and TIMOTHY BLOODWORTH, from the State of North Carolina, severally attended. No quorum being present, the Senate adjourned. THURSDAY, December 6. RICHARD STOCKTON, from the State of New Jersey, and JOSEPH ANDERSON, from the State of Tennessee, severally attended. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President _pro tempore_, as the constitution provides, and JOHN LAURANCE was chosen. The credentials of DANIEL SMITH, appointed Senator by the Executive of the State of Tennessee, in place of Andrew Jackson, resigned, were read, and the oath was, by the PRESIDENT, administered to him, as the law provides. _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES, and acquaint him that a quorum of the Senate is assembled, and that, in the absence of the VICE PRESIDENT, they have elected JOHN LAURANCE, President of the Senate _pro tempore_. _Ordered_, That the Secretary acquaint the House of Representatives, that a quorum of the Senate is assembled, and ready to proceed to business, and that, in the absence of the VICE PRESIDENT, they have elected JOHN LAURANCE, President of the Senate _pro tempore_. A message from the House of Representatives informed the Senate that a quorum of the House is assembled, and that they have appointed a joint committee on their part, together with such committee as the Senate may appoint on theirs, to wait on the PRESIDENT OF THE UNITED STATES and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. The Senate took into consideration the message from the House of Representatives, and _Resolved_, That they do concur therein, and that Messrs. READ and PAINE be of the joint committee on the part of the Senate. The return of service on the summons to William Blount, made by the Sergeant-at-arms, pursuant, to the resolution of the Senate of the first of March last, was read. Mr. READ reported, from the joint committee appointed for that purpose, that they had waited on the PRESIDENT OF THE UNITED STATES, and had notified him that a quorum of the two Houses of Congress were assembled, and the PRESIDENT OF THE UNITED STATES acquainted the committee that he would meet the two Houses on Saturday next at 12 o'clock, in the Chamber of the House of Representatives. SATURDAY, December 8. JAMES ROSS, from the State of Pennsylvania, attended. A message from the House of Representatives informed the Senate that they are now ready to meet the Senate, in the Chamber of that House, to receive such communications as the PRESIDENT OF THE UNITED STATES shall be pleased to make to them. Whereupon, The Senate repaired to the Chamber of the House of Representatives, for the purpose above expressed. The Senate then returned to their own Chamber, and a copy of the Speech of the PRESIDENT OF THE UNITED STATES, this day addressed to both Houses of Congress, was read. [For which see proceedings in the House of Representatives.] _Ordered_, That Messrs. STOCKTON, READ, and ROSS, be a committee to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech this day to both Houses of Congress, and that the Speech be printed for the use of the Senate. MONDAY, December 10. URIAH TRACY, from the State of Connecticut, attended. TUESDAY, December 11. JAMES WATSON, appointed a Senator by the Legislature of the State of New York, in place of John S. Hobart, resigned, produced his credentials, which were read, and the oath was, by the PRESIDENT, administered to him, as the law provides. The Senate resumed the consideration of the report of the committee on the draft of an Address in answer to the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress, at the opening of the session; which, being read in paragraphs and amended, was adopted, as follows: _To the President of the United States:_ SIR: The Senate of the United States join you in thanks to Almighty God for the removal of the late afflicting dispensations of his Providence, and for the patriotic spirit and general prosperity of our country. Sympathy for the sufferings of our fellow-citizens from disease, and the important interests of the Union, demand of the National Legislature a ready co-operation with the State Governments, in the use of such means as seem best calculated to prevent the return of this fatal calamity. Although we have sincerely wished that an adjustment of our differences with the republic of France might be effected on safe and honorable terms, yet the information you have given us of the ultimate failure of the negotiations has not surprised us. In the general conduct of that Republic, we have seen a design of universal influence, incompatible with the self-government, and destructive of the independence of other States. In its conduct towards these United States, we have seen a plan of hostility pursued with unremitted constancy--equally disregarding the obligations of treaties, and the rights of individuals. We have seen two embassies formed for the purpose of mutual explanations, and clothed with the most extensive and liberal powers, dismissed without recognition and even without a hearing. The government of France has not only refused to repeal, but has recently enjoined the observance of its former edict, respecting merchandise of British fabric or produce, the property of neutrals, by which the interruption of our lawful commerce, and the spoliation of the property of our citizens, have again received a public sanction. These facts indicate no change of system or disposition--they speak a more intelligible language than professions of solicitude to avoid a rupture, however ardently made. But if, after the repeated proofs we have given of a sincere desire for peace, these professions should be accompanied by insinuations, implicating the integrity with which it has been pursued--if, neglecting and passing by the constitutional and authorized agents of the Government, they are made through the medium of individuals without public character or authority; and, above all, if they carry with them a claim to prescribe the political qualifications of the Minister of the United States to be employed in the negotiation, they are not entitled to attention or consideration, but ought to be regarded as designed to separate the people from their Government, and to bring about by intrigue that which open force could not effect. We are of opinion with you, sir, that there has nothing yet been discovered in the conduct of France which can justify a relaxation of the means of defence adopted during the last session of Congress, the happy result of which is so strongly and generally marked. If the force by sea and land which the existing laws authorize should be judged inadequate to the public defence, we will perform the indispensable duty of bringing forward such other acts as will effectually call forth the resources and force of our country. A steady adherence to this wise and manly policy--a proper direction of the noble spirit of patriotism which has arisen in our country, and which ought to be cherished and invigorated by every branch of the Government, will secure our liberty and independence against all open and secret attacks. We enter on the business of the present session with an anxious solicitude for the public good, and shall bestow that consideration on the several objects pointed out in your communication, which they respectively merit. Your long and important services--your talents and firmness, so often displayed in the most trying times and most critical situations--afford a sure pledge of a zealous co-operation in every measure necessary to secure us justice and respect. JOHN LAURANCE, _President of the Senate pro tempore_. _Ordered_, That the committee who prepared the Address, wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. Mr. STOCKTON reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he would receive the Address of the Senate to-morrow, at 12 o'clock, at his own house. Whereupon, _Resolved_, That the Senate will, to-morrow at 12 o'clock, wait on the PRESIDENT OF THE UNITED STATES accordingly. WEDNESDAY, December 12. Agreeably to the resolution of yesterday, the Senate waited on the PRESIDENT OF THE UNITED STATES, and the PRESIDENT of the Senate, in their name, presented the Address then agreed on. To which the PRESIDENT OF THE UNITED STATES made the following reply: _To the Senate of the United States:_ GENTLEMEN: I thank you for this Address, so conformable to the spirit of our constitution, and the established character of the Senate of the United States, for wisdom, honor, and virtue. I have seen no real evidence of any change of system or disposition in the French Republic towards the United States. Although the officious interference of individuals, without public character or authority, is not entitled to any credit, yet it deserves to be considered, whether that temerity and impertinence of individuals affecting to interfere in public affairs, between France and the United States, whether by their secret correspondence or otherwise, and intended to impose upon the people, and separate them from their Government, ought not to be inquired into and corrected. I thank you, gentlemen, for your assurances that you will bestow that consideration on the several objects pointed out in my communication, which they respectively merit. If I have participated in that understanding, sincerity, and constancy, which have been displayed by my fellow-citizens and countrymen, in the most trying times, and critical situations, and fulfilled my duties to them, I am happy. The testimony of the Senate of the United States, in my favor, is a high and honorable reward, which receives, as it merits, my grateful acknowledgments. My zealous co-operation in measures necessary to secure us justice and consideration may be always depended on. JOHN ADAMS. _December 12, 1798._ The Senate returned to their own Chamber, and proceeded to the consideration of Executive business. FRIDAY, December 14. JOHN E. HOWARD, from the State of Maryland, attended. MONDAY, December 17. ALEXANDER MARTIN, from the State of North Carolina, and JAMES HILLHOUSE, from the State of Connecticut, severally attended. WEDNESDAY, December 19. FRANKLIN DAVENPORT, appointed a Senator by the Executive of the State of New Jersey, in the recess of the Legislature, in the place of John Rutherford, resigned, produced his credentials; which were read, and, the oath of office being administered to him as the law provides, he took his seat in the Senate. WEDNESDAY, December 26. JAMES LLOYD, from the State of Maryland, attended. THURSDAY, December 27. THOMAS JEFFERSON, Vice President of the United States and President of the Senate, attended. MONDAY, December 31. The VICE PRESIDENT laid before the Senate a letter from JOHN HUNTER, notifying his resignation of his seat in the Senate. MONDAY, January 7, 1799. JOHN BROWN, from the State of Kentucky, and THEODORE SEDGWICK, from the State of Massachusetts, severally attended. TUESDAY, January 8. STEPHENS T. MASON, from the State of Virginia, attended. MONDAY, January 21. HENRY TAZEWELL, from the State of Virginia, attended. THURSDAY, January 24. The Senate being informed that HENRY TAZEWELL, one of the members from the State of Virginia, died this morning, _Resolved_, That a committee be appointed to take order for superintending the funeral of the said HENRY TAZEWELL, Esq., and that the Senate will attend the same, and that notice of the event be given to the House of Representatives, and that this committee consist of Messrs. MASON, BROWN, and MARSHALL. _Resolved, unanimously_, That the members of the Senate, from a sincere desire of showing every mark of respect due to the memory of HENRY TAZEWELL, deceased, late a member thereof, will go into mourning for him one month, by the usual mode of wearing a crape round the left arm. _Resolved_, That the President of the Senate notify the Executive of Virginia of the death of HENRY TAZEWELL, late Senator of that State for the United States. FRIDAY, January 25. The VICE PRESIDENT communicated the credentials of WILLIAM HILL WELLS, elected a Senator for the State of Delaware, in the place of Joshua Clayton, deceased. WEDNESDAY, January 30. JOSIAH TATTNALL, from the State of Georgia, attended. MONDAY, February 4. WILLIAM HILL WELLS, appointed a Senator by the Legislature of the State of Delaware, in place of Joshua Clayton, deceased, attended; and his credentials being read, and the oath required by law administered to him, he took his seat in the Senate. WEDNESDAY, February 6. The bill sent from the House of Representatives, entitled "An act further to suspend the commercial intercourse between the United States and France, and the dependencies thereof, and for other purposes," was read a third time. On motion to add the following proviso to the fourth section: "_Provided_, That a notice of not less than nineteen days of the opening commerce with the French Republic, or any port or place under the Government thereof, by authority of this act, and of not less than thirty days of the revocation of any order issued by the PRESIDENT, by virtue of this act, shall be given:" It was determined in the negative--yeas 13, nays 14, as follows: YEAS.--Messrs. Anderson, Bloodworth, Brown, Chipman, Gunn, Langdon, Livermore, Lloyd, Marshall, Martin, Mason, Read, and Tattnall. NAYS.--Messrs. Bingham, Davenport, Foster, Goodhue, Greene, Hillhouse, Latimer, Paine, Ross, Sedgwick, Stockton, Tracy, Watson, and Wells. On motion to amend the motion, to be read as follows: "_Provided_, That notice shall be given, of not less than thirty days, of the revocation of any order issued by the PRESIDENT, by virtue of this act:" It was determined in the affirmative--yeas 18, nays 10, as follows: YEAS.--Messrs. Bingham, Chipman, Davenport, Foster, Goodhue, Greene, Hillhouse, Howard, Latimer, Livermore, Lloyd, Marshall, Paine, Sedgwick, Stockton, Tracy, Watson, and Wells. NAYS.--Messrs. Anderson, Bloodworth, Brown, Langdon, Martin, Mason, Read, Ross, and Tattnall. And on the question to agree to the motion thus amended, it was determined in the negative. And having agreed to several amendments to the bill, the question on the final passage thereof, as amended, it was determined in the affirmative--yeas 18, nays 10, as follows: YEAS.--Messrs. Bingham, Chipman, Davenport, Foster, Goodhue, Greene, Hillhouse, Howard, Latimer, Livermore, Lloyd, Paine, Ross, Sedgwick, Tracy, Watson, and Wells. NAYS.--Messrs. Anderson, Bloodworth, Brown, Gunn, Langdon, Marshall, Martin, Mason, Read, and Tattnall. SATURDAY, February 9. The Senate resumed the second reading of the bill to amend the act, entitled "An act providing for the sale of the lands of the United States in the territory north-west of the river Ohio, and above the mouth of Kentucky River." On motion to strike out the 8th section of the bill as follows: "SEC. 8. _And be it further enacted_, That aliens residing within the United States or elsewhere, shall be capable of purchasing and holding lands in the territory of the United States north-west of the river Ohio, and their heirs may succeed to them _ab intestato_, in the same manner as if they were citizens; and they may grant, sell, and devise the same to whom they may please, whether citizens or aliens; and that neither they, their heirs, or assigns, shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens." It was determined in the affirmative--yeas 13, nays 11, as follows: YEAS.--Messrs. Chipman, Foster, Goodhue, Greene, Hillhouse, Howard, Martin, Read, Sedgwick, Stockton, Tracy, Watson, and Wells. NAYS.--Messrs. Anderson, Bingham, Bloodworth, Brown, Gunn, Langdon, Livermore, Marshall, Mason, Ross, and Tattnall. TUESDAY, February 12. The bill vesting the power of retaliation, in certain cases, in the PRESIDENT OF THE UNITED STATES, was read the third time; and, being amended, the question on the final passage thereof was determined in the affirmative--yeas 22, nays 2, as follows: YEAS.--Messrs. Anderson, Bloodworth, Chipman, Davenport, Foster, Goodhue, Greene, Gunn, Hillhouse, Latimer, Livermore, Lloyd, Marshall, Martin, Paine, Ross, Sedgwick, Stockton, Tattnall, Tracy, Watson, and Wells. NAYS.--Messrs. Howard and Langdon. So it was _Resolved_, That this bill pass, that it be engrossed, and that the title thereof be "An act vesting the power of retaliation, in certain cases, in the PRESIDENT OF THE UNITED STATES." WEDNESDAY, February 13. The VICE PRESIDENT communicated a letter from the Executive of the State of Virginia, in answer to his of the 24th ultimo, stating that an appointment to fill the vacancy in the Senate, occasioned by the decease of Henry Tazewell, would, probably, be deferred to the meeting of their Legislature. SATURDAY, February 16. CHARLES PINCKNEY, elected a Senator by the Legislature of the State of South Carolina, in place of John Hunter, resigned, produced his credentials, and the oath prescribed by law being administered to him, he took his seat in the Senate. The Senate proceeded to consider the amendments reported by the committee to the bill giving eventual authority to the PRESIDENT OF THE UNITED STATES to augment the Army. On motion, to agree to the amendment reported to the 7th section, to read as follows: "SEC. 7. _Be it further enacted_, That it shall be lawful for the PRESIDENT OF THE UNITED STATES to call forth and employ the said volunteers in all cases, and to effect all the purposes for which he is authorized to call forth and employ the militia, by the act, entitled 'An act to provide for the calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, and to repeal the act now in force for these purposes:'" It passed in the affirmative, as follows: YEAS.--Messrs. Bingham, Chipman, Foster, Goodhue, Greene, Gunn, Howard, Laurance, Livermore, Lloyd, Marshall, Paine, Ross, Sedgwick, Tracy, Watson, and Wells. NAYS.--Messrs. Anderson, Bloodworth, Langdon, Martin, Mason, Pinckney, and Tattnall. SATURDAY, February 23. The bill, sent from the House of Representatives, entitled "An act to grant an additional compensation from the year one thousand seven hundred and ninety-nine, to certain officers of the Senate and House of Representatives of the United States," was read the second time. _Ordered_, That it be referred to Messrs. LIVERMORE, PAINE, and WELLS, to consider and report thereon to the Senate. The Senate proceeded to consider the report of the committee to whom was referred the bill to augment the salaries of the principal officers of the Executive Departments, which was adopted; and The question to agree to the third reading of the bill as amended, was determined in the affirmative--yeas 22, nays 3, as follows: YEAS.--Messrs. Bingham, Bloodworth, Chipman, Davenport, Foster, Goodhue, Greene, Hillhouse, Howard, Laurance, Lloyd, Marshall, Martin, Paine, Pinckney, Read, Sedgwick, Stockton, Tattnall, Tracy, Watson, and Wells. NAYS.--Messrs. Langdon, Livermore, and Mason. MONDAY, February 25. The Senate resumed the third reading of the bill, authorizing the acceptance, from the State of Connecticut, of a cession of jurisdiction of the territory west of Pennsylvania, commonly called the Western Reserve of Connecticut; and the question on the final passage of the bill was determined in the affirmative--yeas 16, nays 12, as follows: YEAS.--Messrs. Chipman, Davenport, Foster, Goodhue, Greene, Gunn, Hillhouse, Livermore, Lloyd, Marshall, Paine, Read, Sedgwick, Stockton, Tracy, and Wells. NAYS.--Messrs. Bingham, Bloodworth, Brown, Howard, Langdon, Latimer, Laurance, Martin, Mason, Pinckney, Ross, and Watson. FRIDAY, March 1. The Senate resumed the third reading of the bill, sent from the House of Representatives, entitled "An act to establish the Post Office of the United States." On motion, to add the following to the amendment of the 17th section: "_And, provided_, That all the letters and packets franked by any one member, in any one week, shall not exceed thirty ounces; and such privilege shall continue:" It was determined in the negative--yeas 13, nays 17, as follows: YEAS.--Messrs. Bingham, Davenport, Goodhue, Hillhouse; Howard, Livermore, Lloyd, Paine, Ross, Sedgwick, Stockton, Watson, and Wells. NAYS.--Messrs. Anderson, Bloodworth, Brown, Chipman, Foster, Greene, Gunn, Langdon, Latimer, Laurance, Marshall, Martin, Mason, Pinckney, Read, Tattnall, and Tracy. SATURDAY, March 2. The bill, sent from the House of Representatives, entitled "An act authorizing a detachment from the militia of the United States," was read the second time. On the question to agree to the third reading of the bill, it was determined in the affirmative--yeas 17, nays 12, as follows: YEAS.--Messrs. Bloodworth, Brown, Foster, Goodhue, Greene, Gunn, Howard, Langdon, Laurance, Lloyd, Marshall, Martin, Mason, Pinckney, Ross, Tattnall, and Watson. NAYS.--Messrs. Bingham, Chipman, Davenport, Hillhouse, Latimer, Livermore, Paine, Read, Sedgwick, Stockton, Tracy, and Wells. SATURDAY EVENING, March 2. A message from the House of Representatives, informed the Senate that the House, having finished the business before them, are about to adjourn without day. The Senate then proceeded to the consideration of Executive business. The Senate, then, resuming Legislative business, adjourned without day. FIFTH CONGRESS.--THIRD SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, December 3, 1798. This being the day appointed by the constitution for the annual meeting of Congress, a number of members of the House of Representatives assembled in their Chamber. The following are the names of the members present: _From New Hampshire._--ABIEL FOSTER, JONATHAN FREEMAN, WILLIAM GORDON, and PELEG SPRAGUE. _From Massachusetts._--DWIGHT FOSTER, SAMUEL LYMAN, HARRISON G. OTIS, GEO. THATCHER, JOSEPH B. VARNUM, and PELEG WADSWORTH. _From Rhode Island._--THOMAS TILLINGHAST. _From Connecticut._--SAMUEL W. DANA, CHAUNCEY GOODRICH, and ROGER GRISWOLD. _From New York._--DAVID BROOKS, HENRY GLENN, JONATHAN N. HAVENS, and HEZEKIAH L. HOSMER. _From New Jersey._--JONATHAN DAYTON, (the Speaker.) _From Pennsylvania._--DAVID BARD, JOHN CHAPMAN, WILLIAM FINDLAY, ALBERT GALLATIN, JOHN A. HANNA, BLAIR MCCLENACHAN, and RICHARD THOMAS. _From Maryland._--GEORGE DENT. _From Virginia._--JOHN CLOPTON, JOHN DAWSON, DAVID HOLMES, JAMES MACHIR, and DANIEL MORGAN. _From North Carolina._--MATTHEW LOCKE, NATHANIEL MACON, and RICHARD STANFORD. _From Tennessee._--WILLIAM CHARLES COLE CLAIBORNE. _From Georgia._--ABRAHAM BALDWIN. Three new members, to wit: JONATHAN BRACE, returned to serve in this House as a member for Connecticut, in the room of Joshua Coit, deceased; ROBERT WALN, returned to serve as a member for Pennsylvania, in the room of John Swanwick, deceased; and JOSEPH EGGLESTON, returned to serve as a member for Virginia, in the room of William B. Giles, who has resigned his seat; appeared, produced their credentials, and took their seats in the House. A little after 12 o'clock the SPEAKER of the House took his chair, the names of all the members were called over by the Clerk, and there appearing only forty persons, (fourteen short of a quorum,) a motion was made to adjourn, and the House adjourned accordingly till to-morrow at 11 o'clock. TUESDAY, December 4. Several other members, to wit: from Massachusetts, STEPHEN BULLOCK; from New Jersey, JAMES H. IMLAY; from Pennsylvania, JOHN WILKES KITTERA; from Maryland, GEORGE BAER, Jr., WILLIAM CRAIK, and SAMUEL SMITH; from Virginia, ANTHONY NEW, ABRAM TRIGG, JOHN TRIGG, and ABRAHAM VENABLE; from North Carolina, THOMAS BLOUNT; and from South Carolina, WILLIAM SMITH; appeared and took their seats in the House. A new member, to wit: ROBERT BROWN, returned to serve in this House as a member for Pennsylvania, in the room of Samuel Sitgreaves, appointed a Commissioner of the United States under the sixth article of the Treaty of Amity, Commerce, and Navigation, with Great Britain, appeared, and took his seat in the House. But a quorum of the whole number not being present, the House adjourned. WEDNESDAY, December 5. Several other members, to wit: from Massachusetts, ISAAC PARKER, JOHN READ, SAMUEL SEWALL, and WILLIAM SHEPARD; from Connecticut, NATHANIEL SMITH; from New York, LUCAS ELMENDORPH, JOHN E. VAN ALLEN, and JOHN WILLIAMS; from New Jersey, JAMES SCHUREMAN; and from South Carolina, ROBERT GOODLOE HARPER and JOHN RUTLEDGE, Jr., appeared, and took their seats in the House. And a quorum consisting of a majority of the whole number, being present, The oath or affirmation, to support the Constitution of the United States, as prescribed by the act, entitled "An act to regulate the time and manner of administering certain oaths," was administered by Mr. SPEAKER to the following new members, to wit: JONATHAN BRACE, ROBERT BROWN, ROBERT WALN, and JOSEPH EGGLESTON, who took their seats in the House on the third and fourth instant. _Ordered_, That a message be sent to the Senate to inform them that a quorum of this House is assembled, and ready to proceed to business. SATURDAY, December 8. Several other members, to wit: from Connecticut, WILLIAM EDMOND; from Maryland, JOHN DENNIS and WILLIAM HINDMAN; and from Virginia, THOMAS EVANS and WALTER JONES, appeared and took their seats in the House. The House having been called to order, and the journal read, the SPEAKER observed that the hour was nearly arrived at which the President had proposed to make his communications to both Houses, and read a resolution which was usually entered into on such occasions, informing the Senate that this House is formed, and ready to receive any communications which the President may be pleased to make to them. The resolution was adopted, and a message having been sent to the Senate therewith, the members soon after entered and took the places prepared for them. At twelve o'clock, Lieutenant General WASHINGTON, with his Secretary, Colonel LEAR, Major Generals PINCKNEY and HAMILTON, entered the Hall, and took their places on the right of the SPEAKER'S chair. The British and Portuguese Ministers, and the British and Danish Consuls, with their Secretaries, had their places assigned them on the left of the chair. _President's Speech._ A few minutes after 12, the PRESIDENT OF THE UNITED STATES, accompanied by his Secretary, and the Heads of the several Departments of the Government, appeared. The PRESIDENT having taken his seat, and the officers of Government theirs, near the general officers, he rose and addressed the two Houses as follows: _Gentlemen of the Senate, and Gentlemen of the House of Representatives:_ While with reverence and resignation we contemplate the dispensations of Divine Providence, in the alarming and destructive pestilence with which several of our cities and towns have been visited, there is cause for gratitude and mutual congratulations that the malady has disappeared, and that we are again permitted to assemble in safety at the seat of Government, for the discharge of our important duties. But, when we reflect that this fatal disorder has, within a few years, made repeated ravages in some of our principal seaports, and with increased malignancy; and, when we consider the magnitude of the evils arising from the interruption of public and private business, whereby the national interests are deeply affected, I think it my duty to invite the Legislature of the Union to examine the expediency of establishing suitable regulations in aid of the health laws of the respective States; for, these being formed on the idea that contagious sickness may be communicated through the channels of commerce, there seems to be a necessity that Congress, who alone can regulate trade, should frame a system which, while it may tend to preserve the general health, may be compatible with the interests of commerce and the safety of the revenue. While we think on this calamity, and sympathize with the immediate sufferers, we have abundant reason to present to the Supreme Being our annual oblations of gratitude for a liberal participation in the ordinary blessings of His Providence. To the usual subjects of gratitude, I cannot omit to add one of the first importance to our well-being and safety: I mean that spirit which has arisen in our country against the menaces and aggression of a foreign nation. A manly sense of national honor, dignity, and independence, has appeared, which, if encouraged and invigorated by every branch of the Government, will enable us to view, undismayed, the enterprises of any foreign power, and become the sure foundation of national prosperity and glory. The course of the transactions in relation to the United States and France, which have come to my knowledge during your recess, will be made the subject of a future communication. That communication will confirm the ultimate failure of the measures which have been taken by the Government of the United States towards an amicable adjustment of differences with that power. You will, at the same time, perceive that the French Government appears solicitous to impress the opinion that it is averse to a rupture with this country, and that it has, in a qualified manner, declared itself willing to receive a Minister from the United States, for the purpose of restoring a good understanding. It is unfortunate for professions of this kind that they should be expressed in terms which may countenance the inadmissible pretension of a right to prescribe the qualifications which a Minister of the United States should possess; and that while France is asserting the existence of a disposition, on her part, to conciliate with sincerity the differences which have arisen, the sincerity of a like disposition on the part of the United States, of which so many demonstrative proofs have been given, should even be indirectly questioned. It is also worthy of observation that the decree of the Directory, alleged to be intended to restrain the depredations of French cruisers on our commerce, has not given, and cannot give, any relief; it enjoins them to conform to all the laws of France relative to cruising and prizes, while these laws are themselves the sources of the depredation of which we have so long, so justly, and so fruitlessly complained. The law of France enacted in January last, which subjects to capture and condemnation neutral vessels and their cargoes, if any portion of the latter are of British fabric or produce, although the entire property belongs to neutrals, instead of being rescinded, has lately received a confirmation, by the failure of a proposition for its repeal. While this law, which is an unequivocal act of war on the commerce of the nations it attacks, continues in force, those nations can see in the French Government only a power regardless of their essential rights, of their independence and sovereignty; and, if they possess the means, they can reconcile nothing with their interests and honor but a firm resistance. Hitherto, therefore, nothing is discoverable in the conduct of France which ought to change or relax our measures of defence; on the contrary, to extend and invigorate them is our true policy. We have no reason to regret that these measures have been thus far adopted and pursued; and, in proportion as we enlarge our view of the portentous and incalculable situation of Europe, we shall discover new and cogent motives for the full development of our energies and resources. But, in demonstrating by our conduct that we do not fear war, in the necessary protection of our rights and honor, we shall give no room to infer that we abandon the desire of peace. An efficient preparation for war can alone ensure peace. It is peace that we have uniformly and perseveringly cultivated, and harmony between us and France may be restored at her option. But to send another Minister, without more determinate assurances that he would be received, would be an act of humiliation to which the United States ought not to submit. It must, therefore, be left to France, if she is indeed desirous of accommodation, to take the requisite steps. The United States will steadily observe the maxims by which they have hitherto been governed. They will respect the sacred rites of embassy. And with a sincere disposition on the part of France to desist from hostility, to make reparation for the injuries heretofore inflicted on our commerce, and to do justice in future, there will be no obstacle to the restoration of a friendly intercourse. In making to you this declaration, I give a pledge to France and to the world that the Executive authority of this country still adheres to the humane and pacific policy which has invariably governed its proceedings, in conformity with the wishes of the other branches of the Government and of the people of the United States. But considering the late manifestations of her policy towards foreign nations, I deem it a duty deliberately and solemnly to declare my opinion, that, whether we negotiate with her or not, vigorous preparations for war will be alike indispensable. These alone will give to us an equal treaty, and ensure its observance. Among the measures of preparation which appear expedient, I take the liberty to recall your attention to the Naval Establishment. The beneficial effects of the small naval armament provided under the acts of the last session, are known and acknowledged. Perhaps no country ever experienced more sudden and remarkable advantages from any measure of policy than we have derived from the arming for our maritime protection and defence. We ought, without loss of time, to lay the foundation for an increase of our Navy to a size sufficient to guard our coast, and protect our trade. Such a naval force as it is doubtless in the power of the United States to create and maintain, would also afford to them the best means of general defence, the safe transportation of troops and stores to every part of our extensive coast. To accomplish this important object, a prudent foresight requires that systematical measures be adopted for procuring, at all times, the requisite timber and other supplies. In what manner this shall be done, I leave to your consideration. _Gentlemen of the House of Representatives:_ I have directed an estimate of the appropriations which will be necessary for the service of the ensuing year to be laid before you, accompanied with a view of the public receipts and expenditures to a recent period. It will afford you satisfaction to infer the great extent and solidity of the public resources, from the prosperous state of the finances, notwithstanding the unexampled embarrassments which have attended commerce. When you reflect on the conspicuous examples of a patriotism and liberality which have been exhibited by our mercantile fellow-citizens, and how great a proportion of the public resources depends on their enterprise, you will naturally consider, whether their convenience cannot be promoted and reconciled with the security of the revenue, by a revision of the system by which the collection is at present regulated. During your recess, measures have been steadily pursued for effecting the valuations and returns directed by the act of the last session preliminary to the assessment and collection of a direct tax. No other delays or obstacles have been experienced except such as were expected to arise from the great extent of our country, and the magnitude and novelty of the operation, and enough has been accomplished to assure a fulfilment of the views of the Legislature. _Gentlemen of the Senate, and Gentlemen of the House of Representatives:_ I cannot close this Address, without once more adverting to our political situation, and inculcating the essential importance of uniting in the maintenance of our dearest interests: and I trust that, by the temper and wisdom of your proceedings, and by a harmony of measures, we shall secure to our country that weight and respect to which it is so justly entitled. JOHN ADAMS. UNITED STATES, _December 8, 1798_. The PRESIDENT having finished his Address, after sitting a few moments, presented the President of the Senate and Speaker of the House of Representatives, each of them, with a copy of it, and withdrew, and after him the Heads of Departments, Senators, general officers, foreign Ministers, &c. The SPEAKER then took his chair, and after calling the House to order, proceeded, as is usual, to read over the Speech, which being finished, it was committed to a Committee of the whole House for Monday, and ordered to be printed. The House then adjourned. MONDAY, December 10. A new member, to wit: RICHARD DOBBS SPAIGHT, returned to serve in this House as a member for North Carolina, in the room of Nathan Bryan, deceased, appeared, produced his credentials, and took his seat in the House; the oath to support the Constitution of the United States having been first administered to him by the SPEAKER. _Address to the President._ On motion, the House resolved itself into a Committee of the Whole on the Speech of the PRESIDENT OF THE UNITED STATES, Mr. DENT in the chair; when Mr. SPRAGUE proposed for adoption the following resolution: _Resolved_, That it is the opinion of this committee, that a respectful Address ought to be presented by the House of Representatives to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress at the commencement of this session, containing assurances that this House will take into consideration the various and important subjects recommended to their consideration. The resolution was agreed to without objection, and the committee rose and reported the resolution. The House took it up, concurred in it, and appointed a committee of five to prepare an answer accordingly. The committee consists of Messrs. DANA, VENABLE, HARPER, HOSMER, and BALDWIN. TUESDAY, December 11. Two other members, to wit: THOMAS SINNICKSON and MARK THOMPSON, from New Jersey, appeared and took their seats in the House. WEDNESDAY, December 12. Several other members, to wit: from Rhode Island, CHRISTOPHER G. CHAMPLIN; from Pennsylvania, THOMAS HARTLEY; and from Virginia, CARTER B. HARRISON; appeared, and took their seats in the House. _Address to the President._ Mr. DANA, from the committee appointed to draft a respectful Address in answer to the PRESIDENT'S Speech, made a report, which was committed for to-morrow. THURSDAY, December 13. PHILIP VAN CORTLANDT, from the State of New York, appeared, and took his seat. _Address to the President._ On motion of Mr. DANA, the House resolved itself into a Committee of the Whole on the Address yesterday reported, in answer to the Speech of the PRESIDENT OF THE UNITED STATES, and Mr. DENT having taken the chair, the Address was read, as follows, omitting the words printed within brackets, which were added as amendments: The words printed in italics were struck out in the discussion, so that the Address to be presented to the PRESIDENT contains the words printed within brackets, and does not contain those printed in italics. JOHN ADAMS, _President of the United States_-- SIR: The House of Representatives unite with you in deploring the effects of the desolating malady by which the seat of Government and other parts of our country have recently been visited. In calling our attention to the fatality of its repeated ravages, and inviting us to consider the expediency of exercising our constitutional powers, in aid of the health laws of the respective States, your recommendation is sanctioned by the dictates of humanity and liberal policy. On this interesting subject we feel the necessity of adopting every wise expedient for preventing a calamity so distressing to individual sufferers, and so prejudicial to our national commerce. That our finances are in a prosperous state, notwithstanding the commercial derangements resulting from this calamity, and from external embarrassments, is a satisfactory manifestation of the great extent and solidity of the public resources. Connected with this situation of our fiscal concerns, the assurance that the legal provisions for obtaining revenue by direct taxation will fulfil the views of the Legislature, is peculiarly acceptable. Desirous as we are that all causes of hostility may be _exterminated_ [removed] by the amicable adjustment of national differences, we learn with satisfaction, that in pursuance of our treaties with Spain and with Great Britain, advances have been made for definitively settling the controversies relative to the Southern and the North-eastern limits of the United States. With similar sentiments have we received your information, that the proceedings under commissions authorized by the same treaties, afford to a respectable portion of our citizens, the prospect of a final decision on their claims for maritime injuries committed by subjects of those powers. It would be the theme of mutual felicitation, were we assured of experiencing similar moderation and justice from _another Power_, [the French Republic,] between _whom_ [which] and the United States differences have unhappily arisen. But this is denied us by the ultimate failure of the measures which have been taken by this Government towards an amicable adjustment of those differences, and by the various inadmissible pretensions on the part of that nation. The continuing in force the decree of January last, to which you have more particularly pointed our attention, ought, of itself, to be considered as demonstrative of the real intentions of the French Government. That decree proclaims a predatory warfare against the unquestionable rights of actual commerce; which [with] our means of defence, our interest and our honor, command us to repel. It therefore now becomes the United States to be as determined in resistance as they have been patient in suffering, and condescending in negotiation. While those who direct the affairs of France persist in the enforcement of decrees so hostile to our essential rights, their conduct forbids us to confide in any of their professions of amity. As therefore the conduct of France hitherto exhibits nothing which ought to change or relax our measures of defence, the policy of extending and invigorating those measures, demands our sedulous attention. The sudden and remarkable advantages which this country has experienced from a small naval armament, sufficiently prove the utility of its establishment. As it respects the guarding of our coast, the protection of our trade, and the facility of safely transporting the means of territoral defence to every part of our maritime frontier, an adequate naval force must be considered as an important object of national policy. Nor do we hesitate to adopt the opinion, that, whether negotiations with France are resumed or not, vigorous preparations for war will be alike indispensable. In this conjuncture of affairs, while with you we recognize our abundant cause of gratitude to the Supreme Disposer of events for the ordinary blessings of Providence, we regard, as of high national importance, the manifestation, in our country, of a magnanimous spirit of resistance to foreign domination. This spirit merits to be cherished and invigorated by every branch of Government, as the estimable pledge of national prosperity and glory. Disdaining a reliance on foreign protection, wanting no foreign guarantee of our liberties, resolving to maintain our national independence against every attempt to despoil us of this inestimable treasure, we confide, under Providence, in the patriotism and energies of the people of these United States for defeating the hostile enterprises of any foreign power. To adopt with prudent foresight such systematical measures as may be expedient for calling forth those energies wherever the national exigencies may require, whether on the ocean, or on our own territory--and to reconcile with the proper security of revenue, the convenience of the mercantile enterprise, on which so great a proportion of the public resources depends--are objects of moment, which shall be duly regarded in the course of our deliberations. Fully as we accord with you in the opinion, that the United States ought not to submit to the humiliation of sending another Minister to France, without previous assurances sufficiently determinate that he will be duly accredited, we have heard, with cordial _acquiescence_, [approbation,] the declaration of your purpose, steadily to observe those maxims of humane and pacific policy by which the United States have hitherto been governed. While it is left with France to take the requisite steps for accommodation, it is worthy the Chief Magistrate of a free people, to make known to the world, that justice on the part of France will annihilate every obstacle to the restoration of a friendly intercourse, and that the Executive authority of this country will respect the sacred rights of embassy. At the same time, the wisdom and decision, which have characterized your past Administration, assure us that no illusory professions will seduce you into any abandonment of the rights which belong to the United States as [a] free and independent [nation.] The clerk having read the Address, it was again read by the Chairman by paragraphs. [After a few slight amendments the answer was agreed to.] Mr. THATCHER wished, as no objection was made to the Address, that it might be entered on the journals as unanimously agreed to; but, on the question being put, a few noes being heard, the SPEAKER declared it not carried. The usual resolution was then passed, that the SPEAKER, attended by the House, do present the Address, and that a committee be appointed to wait upon the PRESIDENT, to know when and where he will be pleased to receive the same. Messrs. DANA, VENABLE, and HARPER, were appointed a committee for this purpose. They waited upon the PRESIDENT accordingly, and Mr. DANA reported that the PRESIDENT would receive the Address to-morrow, at his own house, at twelve o'clock.[37] FRIDAY, December 14. Several other members, to wit: JAMES COCHRAN, from New York; WILLIAM MATTHEWS, from Maryland; JOSIAH PARKER, from Virginia; and THOMAS PINCKNEY, from South Carolina, appeared, and took their seats in the House. _Answer of the President._ The hour having arrived at which the PRESIDENT had appointed to receive the Address of this House in answer to his Speech to both Houses, the SPEAKER announced it, and the House withdrew for the purpose of presenting the Address. In about a quarter of an hour, the members returned; when the SPEAKER, having taken his chair, proceeded to read the answer to their Address, a copy of which had been put into his hand by the PRESIDENT. It was as follows: _To the House of Representatives of the United States:_ GENTLEMEN: My sincere acknowledgments are due to the House of Representatives of the United States, for this excellent Address, so consonant to the character of Representatives of a great and free people. The judgment and feelings of a nation, I believe, were never more truly expressed by their Representatives than those of our constituents, by your decided declaration, that with our means of defence, our interest and honor command us to repel a predatory warfare against the unquestionable rights of a neutral commerce. That it becomes the United States to be as determined in resistance as they have been patient in suffering and condescending in negotiation. That, while those who direct the affairs of France persist in the enforcement of decrees so hostile to our essential rights, their conduct forbids us to confide in any of their professions of amity; that an adequate naval force must be considered as an important object of national policy; and that, whether negotiations with France are resumed or not, vigorous preparations for war will be alike indispensable. The generous disdain you so coolly and deliberately express, of a reliance on foreign protection, wanting no foreign guaranty of our liberties, resolving to maintain our national independence against every attempt to despoil us of this inestimable treasure, will meet the full approbation of every sound understanding, and exulting applauses from the heart of every faithful American. I thank you, gentlemen, for your candid approbation of my sentiments on the subject of negotiation, and for the declaration of your opinion, that the policy of extending and invigorating our measures of defence, and the adoption with prudent foresight of such systematical measures as may be expedient for calling forth the energies of our country, wherever the national exigencies may require, whether on the ocean or on our own territory, will demand your most sedulous attention. At the same time, I take the liberty to assure you, it shall be my vigilant endeavor, that no illusory professions shall seduce me into an abandonment of the rights which belong to the United States, as a free and independent nation. JOHN ADAMS. UNITED STATES, _December 14, 1798_. MONDAY, December 31. Several other members, viz: from Connecticut, JOHN ALLEN; and from Virginia, SAMUEL J. CABELL and THOMAS CLAIBORNE, appeared, and took their seats in the House. _Remonstrance of Georgia._ RECLAMATION FOR SACRIFICED TERRITORY--COMPARATIVE EXPENDITURE IN DEFENDING NORTHERN AND SOUTHERN FRONTIERS FROM INDIAN DEPREDATIONS. The House then resolved itself into a Committee of the Whole, on the report of a select committee on the representation and remonstrance of the State of Georgia; which was read as follows: "Report of the committee to whom was referred the representation and remonstrance of the Legislature of the State of Georgia: "That a certain tract of country, within the limits of Georgia, bounded by a line beginning at the fork of Oconee and Ocmulgee Rivers, and thence running in a south-west direction, until it intersects the most southern part of St. Mary's River, thence down the river to the old line, was ceded by the Creek nation of Indians, to the said State, by a treaty held between the Commissioner of said State, and the Creek Indians at Galphinton, on the 12th of November, 1785, which tract of country was, by the Legislature of said State, formed into a county, by the name of Talessee county; and the cession thereof was afterward confirmed, at a treaty held between the same parties, at Shoulderbone, on the 3d day of November, 1786. "Your committee further report, that, by the treaty made at New York, between the United States and the Creek Indians, bearing date on the 7th day of August, 1790, a boundary line was established between the said nation of Indians and the United States, whereby the above described tract of country, named Talessee county, was declared to be within the Indian territory. "The committee have not been able to discover upon what principles the relinquishment of the territory of the State of Georgia was acceded to on the part of the United States; it is therefore to be presumed that it was done upon principles of general policy, with the intention of establishing a permanent peace between the United States and the said nation. They are, therefore, of opinion that compensation ought to be made to the State of Georgia for the loss of this territory, and recommend to the House to adopt the following resolution: "_Resolved_, That the United States will make compensation to the State of Georgia, for the loss and damage sustained by that State, in consequence of the cession of the county of Talessee, made to the Creek nation, by the Treaty of New York, unless it shall be deemed expedient to extinguish the Indian title to the said land." Mr. BALDWIN said, he should not call for the reading of the remonstrance, as it had already been twice read, and had also been published in the newspapers. The committee in their report have stated such parts of it as they thought necessary to lead the House to a decision. It is seen at once to relate to two objects: what they consider as a dismemberment of the State, by giving back to the Indians a district of country, called Talessee county, and the injurious operation of the act for regulating trade and intercourse with the Indians. He was himself at New York at the time when the treaty, called the Treaty of New York, was made; he knew well it was with great concern and reluctance that the Federal Government consented to an act which had so much the appearance of dismembering a State, as giving back Talessee county to the Indians; but that frontier was so extensive, the savages who border upon it were so much more numerous and hostile than any others in the United States, that they were induced to consent for a time to the relinquishment of that district to them, as the counterpart of all the other conditions which they obtained in that treaty. He was sure it was at that time their expectation and design to have before now peaceably repurchased it of the Indians. The act was not founded on any defect in the right of the State to that county; but a short time before, three Commissioners, viz: Gen. Lincoln, Judge Griffin, a former member of Congress, and Mr. Humphreys, who is now our Minister at Madrid, were sent to examine into the state of that frontier, and to form treaties with the neighboring tribes; they were unwearied in the execution of their trust, visited the frontier in person, collected the Indian chiefs to meet them there, to learn what information they could give; they afterwards returned to the seat of Government of Georgia, and examined the treaties, laws, and journals, and examined individuals on oath, so as to obtain all the information that it was possible to procure, on the spot. On their return they made a special and very full report, a copy of which is on the files of the House, and, without doubt, is to be regarded on those subjects as a document paramount to every thing else, at the time it was made. This document leaves no doubt of the fairness of the transaction in the treaties of 1785 and 1786, in which this Talessee county was purchased and contained, as stated by the committee. The giving it back, by the subsequent Treaty of New York, rested only on the importance and urgency of the case, as the only possible means of obtaining peace. On the other point contained in the remonstrance, viz: the injurious operation of the law respecting trade and intercourse with the Indian tribes, he did not think it necessary now to make many observations, the report of the committee was, that it should be revised and amended; as that law expires by its own limitation with this session, it is a subject that must be taken up, and at that time he should submit to the consideration of the House the various matters which seemed to impress themselves so strongly upon the minds of his constituents. Mr. B. said, the report of the committee was peculiarly grateful to him, and he hoped the confirmation of it by Congress would be so to his constituents, because the individuals who composed the committee were so long and so well known in the United States, that their report will be likely to have a great effect in finally settling the minds of people on those old subjects of reproach and discord, especially as it is in direct conformity with the copious report of the three Commissioners who examined into the same subject on the spot, as he had before mentioned. This appeared to him to be a matter of great importance. From the close of the Revolution to the present time, these reproaches have always been at the threshold, to encounter every thing that was proposed in behalf of that growing and important part of the United States. The Revolution had raged there to such a degree, and the minds of men were so embittered against each other, that it required more than the usual time for them to lay aside the fierceness of their hostility. Though their enemies were driven from them, yet they were not driven beyond the recoil of their resentment. This, joined to the disappointment of some pecuniary enterprises of individuals for gain, had been the cause of those malignant torrents of reproach which have but too long poured forth upon the greater part of their councils, and upon the most distinguished of their public servants. It was well known to him, and to some who heard him, that their calls for protection on a very extensive and very turbulent frontier, had, till within these few years, always been repelled with reproaches, that they had never been any thing but an expense; were totally delinquent in bearing the burdens of the Revolution; that they had been carried through entirely at the expense of the other States; and that they ought not now to be protected any further till they were willing to pay requisitions. When this reproach was wiped off by the report of the General Board of Commissioners, on the settlement of the whole account of the old co-partnership of the Confederation, and the very small number there, at that time, appeared to have done the proportion of the whole number by the census which was the rule of the settlement, and to have reimbursed the great delinquency of the loan officers appointed by Congress, for which they were made accountable, still they were told they must protect themselves, for they wronged the Indians out of their lands, and this was the cause of their suffering. It appears now, in the result, that they have always discharged all their Federal obligations, and much more, and instead of getting away the lands from the Indians, the Indians have got away their lands, and they cannot get them back. He believed there could not be much doubt left but that the principles contained in the report of the committee were just and proper. These had been to him for many years very sore objects; the position in which he considered them immovably fixed gave him great pleasure. His constituents had not sent him here to play the champion. He thought it could not be denied that there was some ground for them to triumph over those who had so long vilified and abused them. He begged leave still further to urge the measures recommended by the committee, from the consideration of the small expenditures which have been made on that frontier, in proportion to the others. The accounts of the military expenditures on the northern frontiers, were now more than ten millions of dollars. This had been begun, and principally originated from a regular expedition to destroy a village of fugitive Indians, who committed depredations on the northern frontier; a similar village on the southern frontier, called the Chehaw, was also destined by the Government for a similar expedition; but the measure failed in the Legislature, and that frontier was left to protect themselves. This has been done; the fugitives in that village have been driven off by a party of volunteers. He believed the whole amount of military expenditures on that frontier, till the time of entire peace with the Indians, did not exceed a quarter of a million, and nearly one hundred thousand of that the militia had now been kept out of for four or five years; though he hoped and trusted they would not much longer have cause of complaint on that head. After the observations which he had made, he thought no apology was necessary for some apparent harshness in the language of the remonstrance. As to the course which it is proper to pursue in granting relief on the subject, he had not much to say. He was confident the expectations of the State were not unreasonable; he was sure they would be satisfied with any result which could be considered as fair and honorable; and his confidence in the House forbade him to suppose for a moment that it could be brought to any other. The course recommended by the committee in their resolution now under consideration, is either to make compensation to the State for the land which has been relinquished, and for the damages which they have sustained, or else to repurchase that district or another district, on that frontier, of equal value. He said he had laid on the table a certificate from the Surveyor General of that State, taken at that time, as to the length of the lines enclosing that district, and the probable contents of it. If the report of the committee should be agreed to, a bill might be reported in conformity to one or the other, or all of those principles, as might be thought proper. He was contented in leaving it to the judgment of the House. On the call of Mr. BROOKS, the representation and remonstrance were read. After which, Mr. CHAMPLIN moved that the committee might rise, with a view of postponing this subject till the next session of Congress. He thought the language of the remonstrance too violent and indecorous to claim attention from the House. This opinion was also supported by Mr. DANA. Messrs. BAYARD and N. SMITH wished this motion to prevail, because they doubted the propriety of the report, and supposed there would not be time thoroughly to investigate the business during this session. On the other hand, Messrs. PINCKNEY, RUTLEDGE, HARPER, GALLATIN, VENABLE, W. CLAIBORNE, J. PARKER, and MACON, were against the postponement. The objection to the language, it was said, was out of time. If made at all, it ought to have been made when the remonstrance was presented; that some allowance ought to be made for the language, as it appeared to have been drawn in a moment of passion; that if the claim was just, it ought not to be rejected because it was made in improper language, especially, since the Legislature of Georgia were not the only persons concerned, as the inhabitants on the frontier, while this subject is undecided, are suffering severely from Indian cruelties and depredations. The question for leave to be given to the committee to sit again, was carried by 69 votes. TUESDAY, January 8, 1799. _Impressment of Seamen._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the House of Representatives:_ In compliance with your desire, expressed in your resolution of the 2d of this month, I lay before you an extract of a letter from George C. Morton, acting Consul of the United States at Havana, dated the 13th of November, 1798, to the Secretary of State, with a copy of a letter from him to L. Trezevant and William Timmons, Esqs., with their answer. Although your request extends no further than to such information as has been received, yet it may be a satisfaction to you to know that as soon as this intelligence was communicated to me, circular orders were given, by my direction, to all the commanders of our vessels of war; a copy of which is also herewith transmitted. I also direct this intelligence and these orders to be communicated to His Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary to the United States, and to our Minister Plenipotentiary to the Court of Great Britain, with instructions to him to make the proper representation to that Government upon this subject. It is but justice to say that this is the first instance of misbehavior of any of the British officers towards our vessels of war, that has come to my knowledge. According to all the representations that I have seen, the flag of the United States, and their officers and men, have been treated by the civil and military authority of the British nation, in Nova Scotia, the West India Islands and on the ocean, with uniform civility, politeness, and friendship. I have no doubt that this first instance of misconduct will be readily corrected. _Jan. 8, 1799._ JOHN ADAMS. [CIRCULAR.] _To the Commanders of Armed Vessels in the service of the United States; given at the Navy Department, December 29, 1798._ SIR: It is the positive command of the PRESIDENT, that on no pretence whatever, you permit the public vessel of war under your command to be detained, or searched, nor any of the officers or men belonging to her to be taken from her, by the ships or vessels of any foreign nation, so long as you are in a capacity to repel such outrage on the honor of the American flag. If force should be exerted to compel your submission, you are to resist that force to the utmost of your power, and when overpowered by superior force, you are to strike your flag, and thus yield your vessel, as well as your men; but never your men without your vessel. You will remember, however, that your demeanor be respectful and friendly to the vessels and people of all nations in amity with the United States; and that you avoid as carefully the commission of, as the submission to, insult or injury. I have the honor to be, sir, your obedient servant, BEN. STODDERT. Letters which accompanied the above Message: _Extract of a letter from George C. Morton, acting Consul of the United States at the Havana, dated there the 18th November, 1798, to the Secretary of State._ "By the delegation of Daniel Hawley, Esq., I am at present acting as Consul of the United States in this district, with which he will most probably have acquainted you. It imposes upon me the mortifying task of informing you, sir, of the partial capture of an American fleet under the convoy of the Baltimore sloop-of-war, ---- Phillips, Esq., commander, by a British squadron, off this harbor, accompanied with circumstances rather grating to the feelings of Americans, and by no means analogous to that good harmony which seems to subsist between the two Governments. "The answer of Messrs. Trezevant and Timmons to my annexed note of the 17th instant, requesting an exact relation of the occurrence, will I presume be deemed as impartial a narration as can be given of the whole transaction, they having been passengers on board one of the captured vessels, and removed to the Baltimore. "Mr. Morton adds, that Commodore Loring ordered the fifty-five men out of the Baltimore "on board of his ship, previous to any proposal of exchanging the natives of one nation for those of the other, and retained five of the hands as being British subjects, without giving an equal number of Americans, whom he acknowledged to have on board."" HAVANA, _November, 17, 1798_. GENTLEMEN: As acting American Consul for this city and district, and of course obliged to forward the most correct statement possible to the Government of the United States officially, I would beg the favor of you, gentlemen, to furnish me with an exact relation, under your signatures, of the unpleasant occurrence which took place off the Moro Castle on the 16th instant, by which you will much oblige, Gentlemen, your most obedient servant, GEO. C. MORTON. L. TREZEVANT and W. TIMMONS, Esqs. N. B.--It would be proper to premise that you were passengers, and your distance from the Moro Castle at the time of capture. G. C. M. * * * * * HAVANA, _November 18, 1798_. SIR: Agreeably to your request, we now commit to writing the best account we are able to give you of the conduct of Captain Loring, Commodore of the British squadron which was lately off the Moro, towards the United States ship Baltimore. We must observe, however, that all we can say of it is from the information of Captain Phillips, as we were not on board the Baltimore when she was visited by Captain L.'s officers. In the morning of the 16th instant, we discovered this squadron when we were in sight of the Moro, and afterwards found it was composed of Captain Loring's ship, the Carnatic, of 74 guns; Captain ----'s ship, the Thunderer, of the same force; Captain Dobson's ship, the Queen, of 98 guns; Captain Donnelly's frigate, the Maidstone, of 32 guns; and Captain Hardy's frigate the Greyhound, of the same force. We were passengers in the brig Norfolk, Captain Butler, which, together with the ship Eliza, Captain Baas, and the brig Friendship, Captain Fuller, were cut off from their entrance into port, and were all made prizes within gunshot of the Moro. We obtained leave to go on board the Baltimore with our baggage, and did so. When Captain Phillips discovered they were English ships, (which was before we were taken,) he stood towards them, and spoke the Commodore. After we got on board the Baltimore, the Captain informed us that he had been on board the Carnatic, and the Commodore told him he should take out of the Baltimore all such men as had not American protections; that he had remonstrated with him against showing such an indignity to our flag; that to do so would leave his ship in a very defenceless state, and would deprive him of nearly all his men, as not even those who were really Americans, or at least very few of them, could show protections, because it was always thought that our flag on board of a Government ship, was a sufficient protection. All this, however, was urged in vain. Captain P. returned to his ship, and the Commodore sent an officer on board the Baltimore, who carried away fifty-five of her men to the Carnatic. Captain Phillips remained in expectation that nearly all the rest would be taken from him; but whether the Commodore, upon reflection, thought better of it, or whatever else might have been his motive, he sent back fifty, and kept five, among whom was the ship's boatswain. Captain Loring proposed to give up a number of American seamen, who, he said, were in his fleet, if Captain P. would give him English subjects for them. Captain P. refused this offer, and the American seamen were not delivered to him. Before any of the men were returned, he sent a message to Captain P. to let him know if he, or one of his officers, would go on board of him, and point out who were Americans and who were not, he would return all the Americans; but this was declined also. After we got on board the Baltimore, he sent a letter to Captain P. which he showed to us, in which the Commodore "demanded" that he would give up all the British subjects on board the Baltimore. To this, Captain P. replied that he could not know any of his men as British subjects, nor could he, as commander of a ship, in the service of the United States, voluntarily give up any of his men; but if he thought fit to send an officer on board, with orders to take any number of his men, he should not oppose it. In this answer, Captain P. mentioned he should lay before the Executive of the United States a full account of the occurrences of the day. Shortly after sending this reply, the squadron set sail, and left the Baltimore. Commodore L. was very polite to us, and was so to Captain P. when he went on board; but Captain P. complained of indecent behavior from the inferior officers. LEWIS TREZEVANT, WM. TIMMONS. G. C. MORTON, Esq., _Vice Consul of the U. S. at Havana_. The Message and documents were read, and ordered to lie on the table. MONDAY, January 14. EDWARD LIVINGSTON, from New York, appeared, and took his seat. MONDAY, January 21. _Intercourse with France, and her Islands._ SAN DOMINGO. The fourth section of the bill to suspend this intercourse being under consideration, Mr. NICHOLAS said, there are some words in this section [in italics] which he did not understand, and if he could not get an explanation of them in any other way, he would move to strike them out. They are not in the former law; and they are very extensive. They go to this, that a man in authority in one of these islands, be his authority as limited as it may, may make an agreement on the subject of intercourse different from what he is authorized to do by the Republic of France, and, in that case, the island is to be open for our commerce. He wished for some information on this subject. Mr. S. SMITH understood, that the reason why these words had been introduced into the bill was, in order to meet the case of Hispaniola.[38] It was well known that a new agent had succeeded Hedouville there; that he has published a proclamation, stating, that notwithstanding the decree of the French Republic, which directs the seizure of all American vessels and their cargoes, whenever there shall be found on board an article of British manufacture, he was authorized to suspend that decree so far as relates to vessels coming to that island. And, Mr. S. said, if any agent in the West Indies could give assurances that no capture should take place from the island of which he is Governor, then the PRESIDENT shall be authorized to open our commerce with that Island. It was on this ground that he had given his consent to this clause of the bill. Mr. NICHOLAS said, if the clause were intended to meet the case to which the gentleman had alluded, the agent had his powers from the French Government, and whatever he did must be considered as done by that Government, until his power shall be revoked; but as the clause stood, it would authorize the PRESIDENT to treat with usurpers; not merely with persons in power, but with any persons having momentary possession of a place, and he could not agree to such a principle. Why, asked Mr. N., was this law originally passed? Was it not an order to bring France to terms by distressing her islands? Suppose France should say to one of her agents in the West Indies, "You shall be authorized to make a stipulation with the United States to take off the suspension of intercourse with respect to your Island." Would not this be to acknowledge that there our regulation pinched her? And would not the opening of intercourse with such a place, by relieving the distresses of France, defeat the original intention of the law? [Mr. HARPER asked if there was any question before the committee?] Mr. N. said he would make one by moving to strike out this section. A clause of this kind, Mr. N. said, held out an invitation to agents to abandon their country, and to set up Governments of their own. If it were to operate only in a partial manner, for the relief of such of the French islands as are so far distressed as that the Government should be willing to restrain her depredations, so far as related to those particular places, where will be the efficiency of the law afterwards? It will only prove a burden upon our own citizens, without injuring France. If we are to have a free trade with the West Indies, why deprive tobacco planters of going immediately to the country where the article is consumed, instead of going through Spain, and by other circuitous routes? But the other aspect of the bill, Mr. N. said, was the most extraordinary and exceptionable he ever saw. It authorized the PRESIDENT to treat with persons "claiming authority." This provision may produce consequences the most fatal. Suppose any of the islands make a separate negotiation with this country; what will be the effect of our having thus enticed them to disobey their Government? Will this Government not be chargeable with having assisted in detaching such a colony from its Government? And if so, could any thing afford a more lasting cause for war than an act of this kind? If there be any disposition in the French Government to treat, (which, however, the Secretary of State denies,) a conduct of this kind would effectually root it out, and there could be no treaty--no peace between the two countries--for years to come. If gentlemen, therefore, can give no better explanation of this clause than has already been given, he hoped it would be stricken out. Mr. OTIS did not believe that a more unjustifiable jealousy ever entered the heated imagination of the gentleman from Virginia, than that which occupies it at this moment. He seems to think that this section of the bill is intended only to encourage usurpation and rebellion, whereas a slight attention should convince him, that when any one of the French islands or dependencies revolt and declare for independence, neither the law passed the last session nor this bill will apply to such a case. In such an event, there is nothing in the existing laws to prevent our carrying on a free trade with such revolted island. If attention be paid to the first section of the bill, it will be seen to apply only to such places as are under the acknowledged government of France; and the moment a place is no longer under her government, both the existing law and this section become null with respect to that place, and a new relation would be created which would be regulated under the law of nations. If a rebellion of this kind should break out, it would become a question to what extent we ought to carry on commerce with the rebellious place; and we should then be governed by existing circumstances. If we should be at war with France, we should doubtless, said Mr. O., avail ourselves of the trade to its full extent, without respect to her wishes; but if an accommodation of differences should be effected, and the mother country should prohibit all trade with the revolters, it is not presumable that this Government would sanction any commerce that would provoke a war, or protect adventurers from the seizure and confiscation of their property. But it is not enough, observed Mr. O., to say that this section does not relate to rebellious colonies; it is merely a provision to meet such conditions as the agents of the Executive Directory are entitled to make, consistently with their allegiance to their own country--such at least as they constantly undertake to propose. Without assuming to define the powers of these agents, it was very clear that they have undertaken to dispense with the decrees and laws of the Republic, whenever the exigencies of their Governments have, in their opinion, made it necessary or convenient. At St. Domingo and at Guadaloupe, the agents seem to exercise an unlimited control over the trade and maritime concerns of those islands. He presumed they had a discretionary right given to them to relax or suspend many of the decrees of the mother country, with respect to the territory they are appointed to govern. The uniform conduct of Santhonax and Polverel, and of all the Commissioners at St. Domingo, show this to be the case; and at Guadaloupe, Victor Hugues has proved himself to be nothing less than a despot. If this bill passed, these Commissioners may open the commerce with this country, even though an open war should exist between this nation and France. Nay, Mr. O. said, he had a proclamation of Hedouville, the late agent at Cape Francois, in his hand, which shows that he had determined to adopt this line of conduct. [Mr. O. read the proclamation which states that neutral ships and cargoes, that provisions and dry goods, shall be admitted into St. Domingo in American bottoms, that they shall not be seized when destined for French ports, but pass unmolested by French cruisers even if war should break out between the mother country and the United States.] Now, said Mr. O., the interests of this country, and of our mercantile citizens in particular, require us to place ourselves in a situation to meet these advances. Can there be any difficulty in giving to the PRESIDENT a power with respect to the trade with a part of the French dominions, which he at present possesses over the whole? Gentlemen have said that an agent has arrived from a usurper in St. Domingo. Mr. O. said he did not know the fact. He did not know of any usurper in St. Domingo. He believed General Toussaint had succeeded Hedouville in the government of that island; that he had, in imitation of his superiors, sent him off in the same way as in the mother country are sent off those who may be obnoxious to the designs of the reigning and the strongest party. But it does not follow that these measures of General Toussaint will not be ratified by the French Government. The same General had heretofore sent off the commissioner Santhonax. He was not, however, for this cause declared to have forfeited his allegiance, but pains were taken to appease and reconcile him, and Santhonax came back. He was afterwards succeeded by Hedouville, who is, in his turn, sent on a voyage to France. But, said Mr. O., shall we now begin to examine into the legality of the powers of persons in authority, either in France or in her West India possessions? Have we not uniformly adhered to the principle that those who exercise power _de facto_ are the only persons that we are bound to recognize? From the first dawn of the Revolution, we have, said he, never questioned the legitimacy of the power exercised in France; to us it seemed indifferent whether Jacobins or Girondists were at the helm of affairs; whether it was a reign of terror or of moderation. We have constantly sung hosannas and offered adorations to the great Republic, one and indivisible, without considering by whose hands the power was exercised. It is now too late to change this system. We have no way of knowing, said Mr. O., whether the agents of the Directory act in conformity to the will of their masters or not, until the Government declares them out of their allegiance. It will then be soon enough for us to determine the posture which good faith and policy require us to take. But, the gentleman from Virginia says, we ought not to treat with individuals under any circumstances; but it appears probable that the French Republic may permit her agents to carry on this commerce, and to give us satisfactory assurances of safety and protection without a treaty; and such an arrangement would be advantageous to that Republic. We find, indeed, said Mr. O., from the papers on the table, that one of the complaints of that Government is founded on this suspension of intercourse, and therefore to restore the trade in part is to diminish the cause of complaint. With respect to the remark of the gentleman from Virginia, that it was the object of the original act, by distressing France, to bring her to terms, he differed in opinion from him. It was merely a defensive measure. Our trade became so insecure, that it was necessary to do--what? conquer France? No; but to prevent the ruin which threatened our citizens, by prohibiting all intercourse with that country and its dependencies; and whenever an end is put to those aggressions and depredations, the suspension may be removed. This, said Mr. O., is not a novel practice. At the commencement of the late war, the citizens of the Bahamas were excepted from the general regulations and orders prescribed to our privateers. It is very possible to be at war with a nation, and yet at peace with a certain portion of its territory. We find, by the papers on our table, that France says her privateers have transgressed their authority, and that they have now determined that no commissions shall be issued, except by their agents. Let us be prepared to meet them, if they will act accordingly; and if their agents in the Colonies restrain privateering, and depredations within their respective jurisdictions, let us avail ourselves of their good dispositions without any nice inquiries. Mr. O. had said, that this law had no allusion to any country in rebellion; but he could conceive it possible that St. Domingo may declare itself independent, and become so, in spite of the opposition of France, or the wishes of this country. Far be it from me, continued Mr. O., to contend that it is desirable for the interest of the United States that such an event should happen; such a doctrine at this moment would be unseasonable and improper; but, if it does take place, he might say, without offence, it would be good policy to be upon the best terms with the persons in authority there; if not, the inhabitants of that island may become pirates upon our trade, and do us more mischief than we formerly suffered from the Barbary Powers. To prevent which, let us feed and clothe them, and deprive them of inducements to quit their island. Mr. HARPER did not know that he could give an explanation of this section which would be satisfactory to the gentleman from Virginia; but he would state what was the intention of the bill, and what he thought would be its effects. He conceived that the section now under consideration is in strict conformity with the bill heretofore passed. The object of that bill was twofold; first, to save our commerce from that speculative and hazardous enterprise which the high profits made by successful voyages enticed the merchant to go into, which was a species of gambling by which some made large fortunes, and others sustained heavy losses. This trade was something of the nature of faro-banks, or lotteries, which all good Governments have thought proper to prohibit. The Government of this country thought it wise to interfere, and say to the merchants: "You shall not run these great risks; for though a few of you make great gain by the trade, the loss upon the whole is much greater than the gain." This was one object. The other was, to deter the French nation, and those exercising authority under it, from committing depredations upon our commerce, and thus procure protection to our trade. By what means was this to be accomplished? By withholding from the French those articles of prime necessity which they were accustomed to receive through the medium of commerce, to produce an effect which they should feel. Let us examine, said Mr. H., whether this section is in conformity to these two objects. There could be no doubt with respect to the first, because if you can prevail upon those who heretofore encouraged privateering, to forbear to make further depredations, our commerce will unquestionably be rendered safe. The reason, therefore, for laying the restriction, is thus removed; and he saw no reason why it should be continued. Mr. GALLATIN said, one of the objects of this bill when it passed at the last session, was to prevent depredations upon our commerce; but a majority of the House who voted for it, did so with a view of compelling France, by the loss of our trade to her islands, to come to reasonable terms of settlement with the United States. It was then said by some gentlemen, that it was not improbable that the trade to the West Indies was even more advantageous to the United States than to France, valuable as it was to her; and that, therefore, it would not produce the effect predicted. This was his opinion, and he therefore voted against the bill. But, though he voted against this measure, and some others, which, he thought at the time premature, yet a majority of Congress having, by adopting them, placed the nation in its present situation, whatever his opinion might then have been, and whatever it might now be, as to the probability of an end being put to our differences with France, he should think it bad policy, under present circumstances, to recede from the ground then taken, since such a conduct could betray nothing but weakness, and tend to defeat the object which all doubtless have in view, whatever might be the different opinions of obtaining it, an honorable peace. Though this law, therefore, was limited to the present session, he was ready to vote for a continuance of it; but the section now under consideration goes entirely upon new ground, and entirely different to any either taken or avowed at the last session. The law now in existence, said Mr. G., has a section something similar to this, though widely different in substance. It is to this effect; that if, before the next session of Congress, the Government of France, and all persons under its authority, shall disavow and be found to refrain from depredations upon our commerce, then it shall be lawful for the PRESIDENT to suspend the operation of this law. Not to any part, but with the whole. By that law, we said, "We are not yet at war with you, we will adopt such measures as we think necessary for our present situation. We will suspend commerce with you as a nation; but if you, as a nation, shall disavow and refrain from depredations, we have given the PRESIDENT power to renew our commercial intercourse with you." But what, said Mr. G., is the language of this section? It is this. [He read the section as above.] It is, that if any part of the nation, or any commanding officer, or person claiming authority, in any one port, or island, shall take those steps which we consider necessary for that nation to take, it shall be lawful for the PRESIDENT to remit and discontinue the restraints, prohibitions, &c. Instead of taking a general national ground, it provides for the negotiation of an individual, on his private account, who may either exercise, or claim to exercise, authority in any island, &c. We are not, said Mr. G., at war, and an act of this kind is an act which, if it can be justified at all, can only be made use of in a state of war. It is only in such a state that we are authorized to declare, that we will act a different part with certain parts of a country at war, from what we meant to act with the whole; that we will negotiate, treat, make specific regulations with private individuals, provided they shall do--what? Disavow what the French Republic does not disavow. The present act makes it necessary for the disavowal to come from the Government; but this section says, "that although the French Government shall not disavow or restrain her depredations, &c., yet if an individual shall do it, we will open a trade with this individual." This would be to encourage insurrections. It is establishing a doctrine which is reprobated almost every day on this floor--that it is right to divide a people from their Government. Mr. G. conceived, therefore, that the question comes to this: Is it proper to give power to the PRESIDENT, under our present circumstances, to stipulate with certain agents, that in case they will disobey their Government, by declaring themselves independent, or by throwing themselves into other hands, we will renew our commercial intercourse with you? No man, said Mr. G., will deny that a trade of this kind would be advantageous to the United States; he believed it to be one of the most lucrative branches of our commerce; but it was nevertheless thought proper, at the last session, to suspend it, in order, as then supposed, to effect a greater good. Therefore, this commerce being advantageous to the United States, is not a sufficient reason why this measure should be taken, if it be wrong in itself, and may produce greater mischiefs than the trade can do us good. What, said Mr. G., are the inconveniences which would arise from a measure of this kind? It must be allowed, in the first place, that it would give the lie to all our former declarations of abhorrence against the attempts of other countries to divide the people of a nation from their Government; for we here, said he, assume the ground that it is proper to negotiate and stipulate with a part of the people, with a certain district of a country, with any person who shall choose to say that he claims the right of governing in any place. We abandon the general ground of treating with a foreign Government, and determine to treat with any individual who may either have, or claim to have, authority. Mr. G. believed a principle of this kind at all times improper; and it would be peculiarly improper in us to act upon it, with respect to a nation, against which we have so many grounds of complaint of this kind. He had already stated, that it could only be justified in a state of war, if then, to hold out encouragement to insurrection and rebellion to the colonies of another country. Mr. G. believed he might go so far as to say that this section was not inserted to meet the case spoken of by the gentleman from Maryland; but for the admission of one which had been a subject of discussion in the newspapers for some time past. He meant what was generally understood by the mission of Toussaint, a black General, of St. Domingo. It had been asserted, from the moment of the arrival of a supposed agent, that he came here with the late Consul of the United States at that port; that he brought despatches from Toussaint to our Government. Further than this, we have seen, in some of the newspapers printed at the eastward, that this mission is likely to have some effect. We have seen it there stated, "that the President is neither rash nor diffident, and that good effects may be expected to flow from this mission." So far, on the authority of the public newspapers, and none of these assertions have been denied. Should I be doing right, said Mr. G., to say that I believe that this section of the bill is an effect of that negotiation? It is true I only deduce this from probability, but the probability is strong. Mr. G. said he knew that the independence of St. Domingo had been a favorite theme with gentlemen, and they had made an appeal upon it to the avarice of the people of the United States, that, in case of war, this independence would be of advantage to the United States, and that, during a time of peace, the minds of the people ought to be prepared for this event. But gentlemen seem to think that the public mind is not yet ready for this change, or they do not choose to avow the object of this mission. Which, he could not tell; but he would advise those gentlemen who have received information on this subject to communicate it. Mr. G. said he should be happy to know the subject of the despatches of General Toussaint. What is his offer to our Government? Whether his ideas go to independence or not? Whether he is in any way connected with the British Government, or not? Whether the sudden and extraordinary evacuation of St. Domingo by General Maitland was to promote something of this kind, or to support the force of General Toussaint? He should wish to know what is the disposition of the Executive with respect to this business, so far as it shall have come to the knowledge of any of these gentlemen. He would also be glad to know the disposition of this agent, or the nature of his object, at least so much of it as may have escaped at any _petit soupér_ or _dinér_, at which these gentlemen may have been parties? If any such information could be obtained, it might tend to throw some light upon the subject. If he should be mistaken in his views of it, it would be wholly owing to his being deprived of that information, which he believed either the Executive, or some of the members on this floor possess. Mr. G. believed the object of this section is to give encouragement to the black General in his present views. A single sentiment had dropped from the gentleman from Massachusetts (Mr. OTIS) in the course of the debate, which had given rise to part of what he had said on this subject, and which led him to believe that he had some information which he ought to communicate. He said, "if St. Domingo should finally be independent, it was proper to cultivate a good understanding with that island at present, and not refuse"--what? "to hold out certain encouragement to them in such an event." When? Now; so that we are not only to cultivate a good understanding with St. Domingo, if it should become independent, but in the expectation of it, and before it takes place, it is proper to cultivate a good understanding with that island, by holding out the encouragement proposed by this bill. This was nothing less than to confess that this section is inserted in the bill to encourage Toussaint to declare the island independent. Nay, his views, if he is a man of sense, must go further; he must not only secure a temporary trade, but he would also desire to know whether it be the wish of this country that St. Domingo should become independent; because he should suppose that if the Government of the United States was opposed to such an event, a temporary trade would not be a sufficient inducement to him to throw off his present allegiance. To me, however, said Mr. G., if it be the intention of the General to declare it, the independence of St. Domingo is a very problematical event. It would certainly be the interest of Great Britain to oppose an attempt of this kind; since it could not be her interest to have a black Government there. But supposing the event possible, he should consider it as extremely injurious to the interests of the United States. Suppose that island, with its present population, under present circumstances, should become an independent State. What is this population? It is known to consist, almost altogether, of slaves just emancipated, of men who received their first education under the lash of the whip, and who have been initiated to liberty only by that series of rapine, pillage, and massacre, that have laid waste and deluged that island in blood; of men, who, if left to themselves, if altogether independent, are by no means likely to apply themselves to the peaceable cultivation of the country, but will try to continue to live, as heretofore, by plunder and depredations. No man, said Mr. G., wishes more than I do to see an abolition of slavery, when it can be properly effected; but no man would be more unwilling than I to constitute a whole nation of freed slaves, who had arrived to the age of thirty years, and thus to throw so many wild tigers on society.[39] If the population of St. Domingo can remain free in that island, he had no objection; but, however free, he did not wish to have them independent, and he would rather see them under a government that would be likely to keep them where they are, and prevent them from committing depredations out of the island. But if they were left to govern themselves, they might become more troublesome to us, in our commerce to the West Indies, than the Algerines ever were in the Mediterranean; they might also become dangerous neighbors to the Southern States, and an asylum for renegadoes from those parts. This being the case, Mr. G. said, he must deprecate every encouragement which may be held out to produce such an event. Did not gentlemen recollect what an alarm was sounded last year, with respect to the probability of an invasion of the Southern States from the West Indies; an alarm upon which some of the strongest measures of the last session were grounded? Mr. G. could not help hoping, there would be a general wish not to take any measure which may embody so dangerous a description of men in our neighborhood, whose object may be plunder, and who might visit the States of South Carolina and Georgia, and spread their views among the negro people there, and excite dangerous insurrections among them. He did not wish, therefore, to see this black population independent; and that the interest will be wholly black is clear. The General is black, and his agent here is married to a black woman in this city. Mr. G. did not mean by this to throw any reflection upon the General. He believed he had behaved well to Americans. His remarks were general, and were only intended to show that it would be with a black population we must treat. WEDNESDAY, January 23. Mr. S. SMITH said, that if he thought with the gentleman from Pennsylvania, that the clause under consideration was connected with the mission from Toussaint, and the separation of Hispaniola from France, or with an intention of dividing the people of that island from their Government, he should also be opposed to it; but believing, as he did, that it would be productive of none but good effects to this country, he was in favor of retaining the clause.[40] It might be well, Mr. S. said, to take a view of the relation which had subsisted between France and her colonies for some years back. Early in the Revolution, Santhonax and Polverel were sent as Commissioners to Hispaniola, for the purpose of governing the island, and to carry into effect the decree of the French Government for liberating the slaves. They conducted themselves in a friendly manner towards America, but destructively to the northern part of Hispaniola, and particularly towards Cape Francois. The disastrous contest which took place between the whites and blacks, to the destruction of the former, is well known. From the abuse of their power, these Commissioners were recalled. Polverel had not sufficient courage to appear before the French Government, and put an end to his existence. Santhonax went to France, and was sent out again to the island. Still he was favorable to this country, until the decree of France declared that their vessels of war should treat neutral vessels in the same manner as neutral powers suffered Great Britain to treat them. Santhonax then issued his decree of December, 1797, and American vessels were taken and carried into Hispaniola indiscriminately, and unsuspectingly, not under the authority of France, but under the authority of this agent. Not content with this abuse of his power, Santhonax sent Deforneaux, the Commissioner of Guadaloupe, to the south side of Hispaniola, to carry his plans into effect there; but Rigaud, a man of color, and an honest man, who had gained the esteem of the people, who was in power there, frustrated the attempt. Deforneaux attempted to escape, but was taken and sent to France. We see, therefore, that Santhonax made no scruple to set aside the decrees of France; and in this manner has Rigaud ever done, repealing and preventing the execution of the decrees of France, whenever he disliked them. And was Rigaud punished by France for thus exercising his power or not? No; he was made Commander-in-chief of the south side of the island for having sent off Deforneaux. Hedouville succeeded Santhonax in the Government, and brought with him the power to execute or not, as he judged proper, the decree of the Directory directing the capture of neutral vessels with British manufactures on board. He determined that this decree should not be carried into effect against vessels bound to Hispaniola. Did he carry his purpose into effect? So far as his (Mr. S.'s) information went, he did. Here, then, we see Hedouville setting aside the decrees of France; and Rigaud has not only prevented American vessels from being condemned, but has thrown the captains of privateers into prison for daring to bring in American vessels, and has caused such as have been carried into Jacquemel, on account of not having a _rôle d'equipage_, to be delivered up immediately. Victor Hugues, upon the recall of Mr. Adet, ordered that all vessels carrying on trade to what he called rebel ports, should be brought in and made legal prizes of. This was another separate authority. He afterwards issued orders for the condemnation of vessels coming into Guadaloupe with a supercargo, who should either be an Irish or a Scotchman, though they had every necessary paper on board to show that they were bound to that port, and vessels were condemned for this alone; and this is not seen in any of the decrees of France. Mr. S. understood this clause as intended to meet cases of this kind; and, so far from this being offensive to France, it must be quite the reverse. Under this law, said Mr. S., the PRESIDENT will be enabled to say to these special agents, "if you will suspend your decrees with respect to your islands our trade shall be opened to you," and by this means give to our citizens a commerce which is a mine of gold to them. Such a conduct, he thought, must appear to every one perfectly reasonable. The gentleman from Pennsylvania says that the independence of Hispaniola would be dangerous to the Southern States. But does this bill, said Mr. S., contemplate any such thing? Does it not say that the agents must be under the Government of France? If the island were to declare itself independent, we could not, said he, prevent our merchants from trading with it; or if it should be in a state of rebellion, they would trade with it at all risks, without coming under this act. This bill seems, instead of encouraging the independence of the island, to place an obstacle in the way of it. It promises to the commanding officer the trade of this country, so long as he remains attached to France, and forbears to depredate upon our commerce; but the moment he declares himself independent, that promise is no longer binding. Certain words in this clause are complained of; and Mr. S. owned he did not like them himself. He meant the words, "shall clearly disavow;" and, if this motion should not prevail, he would move to strike them out. He should be satisfied if the islands refrained from depredating upon our trade, without making any disavowal. Mr. S. said he could by no means bring his mind to believe that this clause could give encouragement to the people of Hispaniola to rebel against their country. Toussaint, said he, is not the only Governor of that island. Rigaud, who, as he had already stated, is a man of color and a man of excellent character, who has great hold of the affections of the people, and whose attachments are also strong to the French Government, has also a considerable share of authority; and Toussaint, in his opinion, would not on this account dare to declare the island independent. But suppose, said Mr. S., this independence were to take place, would all the danger to this country actually take place which has been stated? In his opinion the reverse would be true. Refuse to these people our commerce, and the provisions of which they stand in need, and you compel them to become pirates and dangerous neighbors to the Southern States; but, so long as you supply them, they will turn their attention to the cultivation of their plantations. If, on the contrary, they once get a taste for plunder, they will never settle to labor. Mr. S. observed that it was the other day said that truth was the characteristic of the Federal party. It might be so, though he had found it otherwise; but the characteristics of party, he observed, always is detraction, suspicion, and jealousy, whether it be called this or that. On the present occasion he found jealousy and doubts had intruded on the minds of gentlemen who would, at other times, see very differently. He did not mean to throw any censure upon them on this account, because they doubtless believe themselves right. This party spirit, said Mr. S., is every where to be found. The gentleman from Connecticut had the other day said that he (Mr. S.) had constantly voted against every measure of defence, yet if he would have read the journals, he would have found the reverse the fact. [The Chairman doubted whether this was connected with the question.][41] Mr. S. concluded by saying that the more gentlemen think on the subject, the more they will be convinced the bill is not pregnant with the mischiefs which they apprehend. Mr. NICHOLAS said it would be difficult to ascertain precisely where truth is to be found; whether in the extremes of party or in a middle course. The gentleman from Maryland says party men are always in the wrong; therefore he supposed that gentleman to be of opinion that those who vibrate between two parties are always in the right. In considering this question, he should do it according to his best judgment. If his mind should be so operated upon by party spirit as not to see the truth, it would be his misfortune. He believed, as he had already stated, that this bill, as it now stands, will authorize the PRESIDENT to negotiate with the subordinate agents of a Government against the will of that Government, and thereby promote a separation between the agent and his Government, by holding out a temptation to do certain acts not warranted by the Government. The House had been told, by two gentlemen from Massachusetts, that this cannot be the operation of the law, because it has no relation to a revolted colony; that when a revolt once takes place, the trade will open of itself, as the territory will no longer be under the authority of France. He wished to inquire into the truth of this doctrine, which one gentleman has asserted and another has endeavored to prove. Mr. N. asked if Toussaint should to-morrow declare himself independent, would the PRESIDENT be authorized to direct the collector of the customs to consider St. Domingo as no longer coming under the present law? In his own opinion, he could not, because it would be contrary to the practice of any other Government; and, if done, would give the lie to all the professions made by us on subjects of this kind. When the separation merely commences; when we know nothing of the means which the revolters possess, but because some person chooses to declare a place independent, shall our Government interfere and acknowledge such a place independent? He asked whether any gentlemen in this House, who are so frequently called disorganizers, had ever broached a doctrine like this? He knew very well, without the authority of _Vattel_, which the gentleman from Massachusetts had introduced, that any nation is at liberty to take part in a rebellion; but it is a good cause of war. When a revolution is effected, then the country revolting becomes independent, and any nation may treat with it according to its will. But, if you take part with the revolters, you place yourselves on the same ground with them in respect to the Government revolted against. And, said he, in case we give any assistance to any island belonging to France, in its revolt against that Government, we place ourselves in a state of war. Mr. N. believed gentlemen are wrong in their construction of the present law, when they say if Toussaint were to declare himself independent to-morrow, that the Executive might immediately consider him so, and direct trade to be carried on with that island as heretofore. He believed the PRESIDENT would not do it, and that the present clause of this bill is founded upon the certainty that he would not. If this is the case, the same objection is in full force against the wording of this section. The gentleman from Massachusetts, first up, seems to acknowledge that this law is to have this operation. He, says, St. Domingo may become independent, and that therefore it is highly proper we should let them know what dependence they may have upon us; to let them know that they may expect all the advantages of independence. Is not this, said Mr. N., an acknowledgment of the effect which this law will have? That the moment they throw off the French yoke, they will receive all the assistance from this country which a free commerce can give them? Mr. N. thought the gentleman himself inflicted the deepest wound on this bill, for gentlemen cannot say that such an assurance is not a temptation to commit the act. Mr. N. could readily believe that the trade of St. Domingo is very valuable to this country, and the assertion of the gentleman from Maryland, that it is a "mine of gold," had confirmed that opinion; and he was really afraid that that gentleman's representing a commercial part of the country, and being himself deeply engaged in commerce, the importance of this trade may have too much weight in deciding a question of this kind, and be a means of disregarding the evils which may arise from it; but Mr. N. was of opinion, that a solid peace would be far more beneficial to commerce generally, than any temporary advantage of this kind. Besides, the principle upon which such advantages would be built, is something similar to that which would actuate a man to fall upon the property of his neighbor, because he is richer than himself. But does not the same gentleman tell the House that the powers in St. Domingo are pretty equally balanced between General Toussaint and Rigaud, and that, therefore, if Toussaint attempted to establish the independence of the island, there could be no certainty of his success? Why, then, said Mr. N., should we go into a measure which might produce war between the two countries, when the advantage to be derived from it is so very doubtful? And he thought the danger from the proceeding was heightened by the circumstance which gentlemen have mentioned of there being so very large a body of people in arms there; for, since the powers are so nicely balanced, is it not probable that the government party, in case of a struggle, would have the advantage? And would it not be the height of madness for us to run the risk of having the large force of that island turned against us, in consequence of our improper interference between the colony and its government? Mr. N. said, he could not overlook some considerations connected with this subject, which he thought of great importance. It is well known, (and he begged gentlemen who have the same desire to preserve the country in peace that he had, to pause at the suggestion,) that there are many gentlemen in this House who have been long in favor of coming to an open declaration of war against France; and he had every reason to believe that the same disposition yet exists in these gentlemen; but the same opportunity of making this declaration does not now exist. The public mind is not now so well prepared for entering upon a war as it was some time ago, because they believe things wear a better appearance. If then, said Mr. N., the same disposition exists for war; if these gentlemen think they or their country will be benefited by war, they may be very willing that France should declare it; and if it be possible that a wish of this sort may exist, it affords a full solution to the meaning of this bill. But we are told, said Mr. N., that we ought not to excite the animosity of the people of St. Domingo. Is our present situation calculated to produce this effect? Certainly not, since they are necessarily involved with the mother country; and to take the part proposed, he had already shown might be attended with the most direful consequences. He thought this country ought not to wish for the independence of St. Domingo in another point of view. However we may wish to see the naval power of France put down, so that they may not have it in their power, if they have the wish, to invade this country, it is highly important to us that the naval power of Europe should be divided. He did not think that it could be for the interest of this country that Great Britain should have a navy which should keep the world in awe, and subject it to her views; and if we assist in destroying the colonies of France, we shall be the means of throwing them and their naval power into the hands of Great Britain. He did not know that it mattered much to us whether St. Domingo was a colony of France or England, only as it would add to the naval strength of England. He hoped, therefore, the motion for striking out would prevail. Mr. PINCKNEY observed, that so much had already been said on this subject, and the general principles of the bill had been so ably defended, that it would be unnecessary to make more than one or two remarks in reply to the gentleman from Virginia. That gentleman had gone altogether upon the idea of this bill being of so obnoxious a nature to the Government of France, that it must be considered by that government as a cause of war. He thought it had already been shown, that the gentleman was altogether mistaken; and, very unhappily for his position, our own experience was sufficient to determine whether it has ever been considered as a cause of war for neutral countries to trade with colonies revolting from a mother country. We know, said he, very well how neutral nations conducted towards us in our revolt from the Government of Great Britain. Mr. P. believed it was never understood that any nation with whom we traded was, in consequence, involved in war with Great Britain. The fact was otherwise. It was never so looked upon by that country, and gentlemen will admit that that Government was at least hightoned enough. All that Great Britain did was to seize the vessels whenever she could lay hold of them; and this is the risk which the gentleman from Maryland mentioned our traders would run in carrying commerce into any place in a state of revolution. It is well known that we endeavored, during the whole course of our war, to draw foreign commerce to this country, which was found necessary in order to enable us to carry on the war. Agents were employed for this purpose, and we saw no moral turpitude in this. And during the time that Holland was separated from the dominion of Spain, was war declared in consequence of any nation trading with Holland? The case was so different, he recollected that Holland declared, that she would seize all vessels going to Spain, though that had heretofore been considered as the mother country. This was reversing the case. With respect to the three points stated generally by the Secretary of State, they are not said to go to the point for which the gentleman from Virginia has taken them. With regard to the _douceur_ of £50,000, Mr. P. would say, that if we believe this attempt to have been made to extort this sum of money from our Envoys, for corrupt purposes, (and notwithstanding all that has been said on the subject, he did believe that X and Y were the agents of the French Government in that transaction, and which has, indeed, been acknowledged by Y, Mr. Bellamy, of Hamburg, who declares he has never written or said any thing to our Envoys, but by the direction of the Secretary of Foreign Affairs,) no reliance ought to be placed upon any of their declarations; for after such an act, it may be supposed they will say one thing at one time and another at another; and no reliance could be had upon any thing which comes from so corrupt a source. Mr. P. said he would not trouble the committee longer, except in one point, and that was as to the consequences which might flow from a declaration of independence on the part of St. Domingo. He should endeavor to answer the gentleman from Pennsylvania as to the consequences which it might produce to the Southern States. It was a subject to which he had paid all the attention in his power. He did, on all questions, endeavor as much as possible to divest himself of any thing like party spirit; but in this case, where he had himself so much at stake, in which his native country and every thing dear to him was concerned, his sincerity could not be doubted. Mr. P. did not himself believe that this bill would have the least tendency to procure the independence of St. Domingo; but as some gentlemen think it is probable that this may be the result, and as no one could say with certainty what the effect of any measure would be, he had considered the subject, and was clearly of opinion, that should the independence of that island take place, the event would be more advantageous to the Southern States, than if it remained under the dominion of France, considering the disposition which France has evinced towards us, (and of which he saw no prospects of a change,) and the present conduct of the inhabitants of St. Domingo. Nothing which we can do, said Mr. P., can bring back the internal state of that island to the state it was formerly in. Considering the inhabitants, then, in the light of freemen, whether will it be better for us, in the Southern States, to have to deal with them, as such, or under the direction of the French Government, unreasonable and arbitrary as we have found it? He had no hesitation in saying, that, it would be more for the safety of the Southern States, to have that island independent, than under the Government of France, either in time of peace or war. If our dispute with France should not be accommodated, and they keep possession of St. Domingo, they could invade this country only from that quarter. There is there a large body of troops, and their unofficial agents told our Envoys, that in case we did not submit to their conditions, we might expect an attack from that quarter. It would certainly lessen the danger from that island, were it to be separated from France; but remaining in the hands of France, and supported by the powerful navy of France, notwithstanding all the vigor we have shown on the ocean, we might be very much annoyed from thence. If these people in St. Domingo find that we withhold from them supplies which are necessary for their subsistence, said Mr. P., though they are friendly disposed towards us, they will look elsewhere for support; they must either turn their attention to cultivating their land, look to Great Britain, or become freebooters. Which situation is it most for the interest of the United States that they should be in? Surely the peaceful cultivation of the ground; and to induce them to take this course, it will be our interest to supply them with what they have occasion for, lest they should get the habit of freebooters, and make our commerce the object of their plunder. He hoped, therefore, the motion for striking out would not prevail. Mr. MACON had no doubt the gentleman from South Carolina had paid particular attention to this subject. It was to be expected that every gentleman from the Southern States would pay attention to it. In one respect, he was precisely in the same situation with the gentleman from South Carolina. He lived in a country that would be affected by any event, such as had been mentioned, and all his connections were there. It was the same with all other gentlemen from the Southern States. He differed in opinion, however, when the gentlemen said that we should have less to apprehend from St. Domingo, in case it should become independent, than whilst it remained a part of the French Republic. He believed the state of society to be such in that country, as not to admit of self-government. In case they separate from France, he should apprehend that the consequence will be, that instead of being ruled by one of the European powers, they would become the tools of them all, in turn, and we should probably have the same game played off upon us from thence, that we have heretofore had played upon us by means of the Indians. Mr. M. said, that although the part of the bill moved to be stricken out, does not go directly to say that it has reference to St. Domingo, it is a little extraordinary that no other case will fit it. There could be no doubt, if the island became independent, we should have a right to trade to it; but he believed it would puzzle gentlemen to find an instance of a Legislature passing a law in order to fit a case which might happen. As he thought it improper, he hoped it would be stricken out. Mr. GOODRICH said this amendment went to change the principle of the bill. The bill goes upon the idea that when any island in the West Indies shall cease to make depredations upon our commerce, our trade shall be opened with them, without regarding by what authority or force the change was effected. The matter is not placed upon the ground of any treaty whatever; for, said Mr. G., we can neither increase nor diminish the power of the PRESIDENT in this respect. A great deal of mist has been thrown on this subject. The effect of this amendment will be, that the person restraining from depredations upon our commerce must act under the authority of the French Republic; on the contrary, the friends of this bill wish not to examine by what authority the thing is done, provided that it be done. We have a right to say that our vessels shall go to any port we please; but, according to the doctrine of the amendment supposing the island of St. Domingo was conquered, we could not send our commerce there, nor could we send it to a place in rebellion; so that our commerce was to be affected by every change of circumstances which might take place. He hoped the committee would recognize no principle which shall say we have not a right to send our commerce wherever we please, whether the places to which our vessels go are in war, peace, or rebellion. Mr. GALLATIN was astonished to hear the gentleman from Connecticut say that this is merely a commercial question. Let us, said he, examine the effect of this amendment. We are told that the provisions of this bill do not extend to any colony which may be conquered; for instance, to St. Martin's, St. Lucia, or any other colonies which have been conquered. Let us see, then, how it will apply if this amendment is rejected, and whether the question is commercial or political. Let us inquire, said he, what is the case provided for, if the amendment is rejected, and which is unprovided for if it is adopted, and it will then appear what ground is covered by the opposers of this amendment. If rejected, it will result, that all persons who may claim or exercise any command in any island, &c., although they have not that command under the Government of France, and who shall refrain from privateering, shall be entitled to a free trade with this country. The only case is a case of insurrection and rebellion. Suppose, said Mr. G., I should agree with the gentleman from Connecticut, that if once a rebellion takes place, or any colony shall declare itself independent, (but, by the by, the doctrine is not countenanced by the law of nations,) that we may trade there as we please. Does it result that we have a right to pass a law beforehand to contemplate such an event? If we do, it will be speaking publicly, thus: "If any persons shall, in any island, port, or place, belonging to the French Republic, raise an insurrection, and declare themselves independent, and shall be found to refrain from committing depredations upon our commerce, we will open a free trade with them." And yet the gentleman from Connecticut calls this a mere commercial question. The committee have been told of a number of cases which he had been astonished to hear--cases which happened in our war. Gentlemen who have mentioned these have not attended to any of the facts of the war. Mr. G. referred to the case of the treaty made in Holland, which has already been explained in a former debate. Mr. G. said, gentlemen might put what construction they pleased upon this section; but certainly publicly to tell the French colonies that if they will rebel against their Government, and restrain from depredating upon us, we will treat with them, is to invite them to do it. A declaration of war has always been the consequence of such a conduct in other countries; and he supposed gentlemen are not ready for a declaration of war, though they tell us there is no change in our affairs for the better; that negotiation is at an end; that no idea can be entertained of the sincerity of any professions of the French; and not being ready to bring in a declaration of war, they are not surely ready to make it, or provoke it; and if not, why assume a principle that may have this effect? He hoped the amendment would be agreed to. The committee now rose, and had leave to sit again. THURSDAY, January 24. _Death of Mr. Tazewell._ A message was received from the Senate, informing the House that HENRY TAZEWELL, Esq., one of their body, died this morning, and that they had directed orders to be taken respecting his funeral. Afterwards, on motion of Mr. DENT, the House came to the following resolution: _Resolved_, That this House will attend the funeral of HENRY TAZEWELL, Esq., late a member of the Senate of the United States, on to-morrow, at half past four o'clock.[42] _Intercourse with France._ The House again resolved itself into a Committee of the Whole, on the bill further to suspend the commercial intercourse between the United States and France, and the dependencies thereof, and for other purposes. Mr. SPAIGHT'S amendment being under consideration, Mr. HARTLEY said the general policy of this bill had been considered at the last session; and he had no doubt, that when any parts of the French dominions cease to depredate upon our commerce, we might, with propriety, open our intercourse with them. If, for instance, the Isle of France had fitted out privateers, and depredated upon our commerce, and chose to forbear to do so in future, and leave our passage to the Indian seas clear, it would be a good reason for opening our commerce with that place. The case of St. Domingo is still stronger, and has, as has been shown, the power of doing as much mischief, should we refuse to furnish them with the necessary supplies. If they call in their privateers, therefore, it would certainly be right to open our intercourse with that valuable island, especially since they appear to be abandoned by France, who has withdrawn all her troops from the island. After some other observations, Mr. H. concluded with hoping the amendment would not be agreed to, as it would only tend to embarrass the bill, by making it necessary to ascertain the legality of the governing authority of the places with which we might open our intercourse. Mr. BRACE was opposed to this amendment, as it came round to the same point with that which the gentleman from Pennsylvania had proposed. It struck him that, in the course of the debate, gentlemen have forgot the ground on which we stand. Our treaties with the French Government have been declared void, on account of the conduct of that Government. We have proceeded further, and suspended all commercial intercourse with France and her dependencies. It would be well to consider what kind of connection now exists between the United States and France, and whether a measure of the kind proposed can injure our present prospect of peace. By the arguments of some gentlemen it would seem that we are under some obligation or contract to that Government; whereas, we ought to consider ourselves, with respect to it, in no other light than we consider ourselves with respect to the governments of the world with which we have no connection. We have, therefore, no object to pursue, but what, in a dignified national view, it is our duty and our interest to pursue. This separation having been effected by the wrong acts of the French Government, she can have no claim upon us; we have taken our stand upon such ground as can always be justified, whenever a spirit of justice shall return. There is no man, said Mr. B., in the House, who does not wish for peace, whenever it can be obtained on a solid foundation. But it was well observed yesterday by his colleague, (Mr. GOODRICH,) that this question is wholly a commercial one. This declaration gave offence to the gentleman from Pennsylvania. He was surprised that any one could suppose this to be the case. Mr. B. said he was equally surprised at the arguments of that gentleman. What connection had we with the French Government? or what connection had we with, any other, besides commercial? He had heard much clamor out of doors about other connections--about treaties offensive and defensive. He hoped no such connexion ever would exist between this country and any nation whatever. Mr. SPAIGHT said, he wished to have given the reasons which induced him to make this amendment yesterday, but a motion being made for the committee to rise, prevented him. Having been a member of the committee who formed this bill, and having given his consent to it, he trusted it would not be believed that he brought forward this motion to defeat the bill; his object was to make it more palatable to many gentlemen, who, if an amendment something like the present was not adopted, would vote against the bill. The gentlemen from Massachusetts and Connecticut have said, that if this amendment is adopted, it will destroy some of the most important principles of the bill. He believed they had mistaken the effect of the amendment. They state that it will be necessary for the PRESIDENT to inquire whether the commander of any island with which he was about to open our intercourse, had his authority from the French Government? On the contrary, it appeared to Mr. S. that, so long as the citizens of any island acknowledged France as the mother country, whatever authority may exist there, the place must be under the Government of France. If an open rebellion took place, it would alter the case entirely. And if conquered by any of the belligerent powers, it would not then come under the bill; so that, in either case, the amendment could have no bad effect. The principal motive with him for moving the amendment was, in order to take away the objection made to it by many gentlemen, that the bill is calculated to produce the independence of St. Domingo; for he himself had no such view, nor did he think any other member of the committee, who reported the bill, had. He believed, if the wants of these people are supplied from this country, it will be better that they should remain under the Government of France; but, if we refuse to supply them with provisions, they may act as freebooters, or do still worse--throw themselves into the hands of Great Britain, in order to procure supplies. These reasons had induced him to make the amendment, and he should be glad to see it adopted. Mr. CHAMPLIN could see no difference between this and the former amendment, which had been negatived. The design of this section is, to authorize the PRESIDENT to open the intercourse with any of the islands and the United States, whenever he shall deem it consistent with the honor and dignity of this country, without inquiring whether such place is under the French Government. Frequent decrees are passed in France, said Mr. C., for revoking the commissions of these officers, which are not enforced; and yet, if this amendment is passed, such a person could not be treated with, and it would always be difficult to ascertain whether an officer acted under the French Government or not. If the islands choose to cease from their depredations, he would openly trade with them; for the intercourse was originally suspended, not with a view of starving the islands, but to prevent depredations being committed upon our commerce. He was astonished to find that nothing could come before this House, but gentlemen are ready to object to it on account of the effect it may have on France. For his part, if the measure be beneficial to this country, he cared not what effect it might have upon France. It was said this provision would have a tendency to provoke insurrection, or the independence of the island; on the contrary, he believed, if this law does not pass, they will throw themselves into the hands of Great Britain, or become plunderers of our property. He hoped to see the intercourse opened, not only with St. Domingo, but with the Isle of France. Mr. HARPER said, when this amendment was first made, he considered it as making no considerable change in the section, and was, therefore, inclined to vote for it; but the gentleman from Massachusetts, (Mr. VARNUM,) of whose discernment he had a very high opinion, having said that he considered it as making a very considerable change in the section, and declaring that he would, on that account, vote for it, he was induced to take a further view of it, and he found, upon reconsideration, that it would, indeed, make a very material change in the section, and because he found this would be the case, he must vote against it. Mr. GALLATIN said, it appeared to him that this amendment goes no further than to prevent any stipulations with persons who have usurped the power of a country. It was yesterday stated by the gentleman from Massachusetts, and repeated to-day by the gentleman from North Carolina, that it did not extend to cases where men's commissions are doubtful. If a man has once held a commission as an agent in any French colony, he may be recognized as their agent, so long as he has not been publicly declared to be otherwise. His exercising the power will be sufficient proof that he has it; and, unless this principle is admitted, it must be evident that the bill is intended to operate in favor of revolters. There is a great difference, said Mr. G., between this amendment and the one which had been moved by the gentleman from Virginia, the gentleman from New York, or that which he had himself moved. It was the opinion of the gentleman from Virginia, and it was his also, that the PRESIDENT ought not to be authorized to open a trade with St. Domingo, unless the constituted authorities of France had disavowed their former aggressions, and refrained from them; they did not think it right to permit a trade with particular parts of the possessions of France, considering that the measure was originally taken to distress the French Government, and bring it to terms; but this section gives the power of opening a partial intercourse with St. Domingo, though the Government of France should not disavow any of her former illegal acts; and the present amendment only proposes to except cases of insurgency. Nor could he see what possible objection can be made to it, except that it will prevent a lure from being held out to promote the independence of St. Domingo; for in nothing else does the amendment differ from the bill as it now stands. If we are to hold out this lure, said Mr. G., it must be because we have the right, and it is our interest to do it. When he asserted we have not the right to do it, he would remark upon the word "right." Gentlemen say we have a right to do this, because we are an independent nation. No doubt. But when he said we have not a right to do it, he meant that we could not do it without infracting the law of nations, or those rules which we have declared ought to govern every nation. And though the gentleman from Connecticut has said that there is no connection of a political nature between us and France, and therefore considers this as merely a commercial regulation, Mr. G. said, he has mistaken his meaning, by making use of the word "connection" instead of _relation_. We have no connection, either commercial or political, with France; but we stand, as a nation, in a political and commercial relation with France and other nations. There is no connection between us, but there is the same relation, both political and commercial, that there is between all other nations. And, said Mr. G., it is, doubtless, an infraction on the law of nations to offer any lure, or promote the independence of a colony. We certainly have a right to give assistance, in case of a rebellion, by running the risk of becoming a party in the war, but not without infracting the law of nations; still less could we do it without breaking that morality in politics, the breach of which we have so often complained of. We may suppose the Government of France radically wrong, and the people exercising it corrupt, but neither would justify the overturning, or holding out any encouragement to others to overturn, the Government of any part of her dependencies. A conduct of this kind could only be justified in time of war. In this country, in our speeches, at least, we have gone further, and said that, even in case of war, it would not be right to sow the seeds of insurrection; for, on what other grounds could we account for the philippics which have been pronounced on this floor against France, for her conduct not only against countries with whom she was at peace, but also against those with whom she was at war. This was the case with respect to all the charges made against France with respect to Holland, or the Milanese (now Cisalpine Republic) with whom she was at war when the attempts condemned were made. But we have said, war is at best an unfortunate state, and it is not right to heighten its evils by exciting insurrections and commotions. If this principle is right, and Mr. G. believed it correct in most cases, it is clear that we shall not be justified in promoting insurrections, even in war, much less in this state which is a state of hostility, but not of war. Notwithstanding the respect which he paid to the opinion of the gentleman from South Carolina (Mr. PINCKNEY) he could not be persuaded that the independence of St. Domingo could be a desirable object. To-day, it had been avowed, in what fell from his colleague, (Mr. HARTLEY,) that this was the ground upon which the clause was founded, all the French force being withdrawn. He gave credit to the candor of his colleague for the declaration, and it was in this point of view which he had always considered it, because he had stated that, no doubt, an agent from that quarter had come with propositions to our government. Mr. G. repeated some of his former reasons against the policy of promoting the independence of St. Domingo. He heard the gentleman from Rhode Island, with regret, repeat one of those illiberal ideas that had been so frequently introduced here, by saying that gentlemen seemed opposed to this measure, because it would be injurious to France. Mr. PINCKNEY wished to make a single observation upon what fell from the gentleman from Pennsylvania. In order to defeat all that has been said about this section holding out a lure for the establishment of the independence of St. Domingo, it need only be said, that it is confined to the colonies which are under the jurisdiction of France. The language of this clause is, "so long as you continue dependent, we will treat with you." Mr. NICHOLAS explained. Mr. SPRAGUE observed that the gentleman from Pennsylvania insisted upon it, that, without this amendment, this bill would hold out a lure to insurrections in St. Domingo, and that if gentlemen did not wish to encourage these, they must agree to the amendment. What is this encouragement? It is, "if you will forbear committing depredations, which we have heretofore experienced from you, we will open our trade with you." Then, according to the gentleman's reasoning, acts of hostility against the commerce of this country, are favorable to France; or rather, ceasing to commit them is an act of rebellion against the mother country; and, to hold out a lure on our part, to stop these depredations, is so contrary to the views of France, as to give a high offence to that country. Mr. MCDOWELL remarked, that gentlemen opposed to this amendment, all agree that the section, as it stands, holds out no lure to insurrection in the French West India islands; if not, why should they object to this amendment, which is only calculated to make certain what is at present doubtful to some members. He wished gentlemen to consider what might be the consequence of authorizing the PRESIDENT to treat with unauthorized persons. Gentlemen have stated, and he supposed truly, that the trade of this island of St. Domingo is a gold mine to the merchants of this country; and he was afraid that the richness of this trade had too much attraction to be resisted by those concerned in it, though it might be dearly purchased by the nation at large. He differed widely in opinion from the gentleman from South Carolina, with respect to the effect which the independence of that island would have upon this country; he believed it was by no means a desirable event to this country. Mr. J. WILLIAMS did not intend to have said any thing on this subject, as it is principally a commercial concern, of which he knew but little; but he also conceived that the agricultural interest is connected with it. Gentlemen are afraid more is meant by this bill than meets the eye; they are afraid to take a worm or a fly, lest a hook should be concealed in them. Instead of war, he thought this bill calculated to promote peace. It is admitted, on all hands, said Mr. W., that Hispaniola cannot support itself. How must they, then, get support? Either we must supply them, or they must depend upon neutral islands, or the people must bend their whole force upon our commerce. What, said he, is most prudent to do? He thought the regulation proposed by this bill the best that could be hit upon. But the gentleman from Virginia said we are obliged to send our tobacco through Spain to France; is this, said he, an advantage to the people of this country? It may be presumed, Mr. W. said, that the President will go no further in this business than the interest of the country requires. This jealousy of the PRESIDENT has a bad effect; because from a want of confidence in this officer, he will be unable to do any thing for us. He hoped the amendment would not be agreed to. It was negatived--49 to 41. MONDAY, January 28. _Intercourse with France._ The bill further suspending our commercial intercourse with France and her dependencies, and for other purposes, having been read the third time, Mr. ALLEN moved for a recommitment of the bill in order to have expunged a proviso introduced by the member from Tennessee, excluding the port of New Orleans from its operation. He stated his reason to be, that he did not believe that was likely to be a rendezvous for French privateers; but that, if it should be, it ought to be liable to the same restrictions with other ports; and, if it was not likely to become a harbor of privateers, to insert a proviso of this kind, was to show a distrust that the PRESIDENT would not exercise the power given to him for the interest of the United States. This motion was seconded by Mr. OTIS, and opposed by Messrs. VENABLE, NICHOLAS, S. SMITH, W. CLAIBORNE, and HARPER. It was negatived, the yeas and nays being taken--74 to 18. The question on the passing of the bill was then taken, and stood, yeas 55, nays 37, as follows: YEAS.--John Allen, George Baer, jun., Bailey Bartlett, James A. Bayard, Jonathan Brace, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, William Craik, John Dennis, George Dent, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Nathaniel Freeman, jun., Henry Glenn, Chauncey Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, William Matthews, Daniel Morgan, Harrison G. Otis, Isaac Parker, Josiah Parker, Thomas Pinckney, John Reed, John Rutledge, jun., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Smith, Richard Dobbs Spaight, Peleg Sprague, George Thatcher, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, Robert Waln, John Williams, and Robert Williams. NAYS.--Abraham Baldwin, David Bard, Thos. Blount, Richard Brent, Robert Brown, Samuel J. Cabell, Thomas Claiborne, William C. C. Claiborne, Matthew Clay, John Clopton, Thomas T. Davis, John Dawson, Joseph Eggleston, Lucas Elmendorph, William Findlay, Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Nathaniel Macon, Anthony New, John Nicholas, Thompson J. Skinner, William Smith, Richard Sprigg, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, and Abraham Venable. _French Affairs._ The following Message was received from the PRESIDENT OF THE UNITED STATES. _Gentlemen of the Senate, and Gentlemen of the House of Representatives:_ An edict of the Executive Directory of the French Republic of the twenty-ninth of October, 1798, inclosed in a letter from our Minister Plenipotentiary in London, of the sixteenth of November, is of so much importance that it cannot be too soon communicated to you and to the public. JOHN ADAMS. _January 28, 1799._ _Extract of a letter from Rufus King, Esq., Minister Plenipotentiary of the United States at London, to the Secretary of State, dated November 16, 1798._ "The annexed arrêt would appear extravagant and incredible, if it proceeded from any other authority; but mankind is so accustomed to the violence and injustice of France, that we almost cease to express our surprise and indignation at the new instances that she continues to display." [TRANSLATION.] _Decree of the Executive Directory, of October 29, 1798._ The Executive Directory, upon the report of the Minister of Foreign Relations, considering that the fleets, privateers, and ships, of England and Russia, are in part equipped by foreigners. Considering that this violation is a manifest abuse of the rights of nations, and that the powers of Europe have not taken any measures to prohibit it. Decrees: 1st. Every individual, native (_ou originaire_) of friendly countries, allied to the French Republic, or neutral, bearing a commission, granted by the enemies of France, or making part of the crews of ships of war, and others, enemies, shall be by this single fact declared a pirate, and treated as such, without being permitted in any case to allege that he had been forced into such service by violence, threats, or otherwise. 2d. The Executive Directories of the Batavian, Lagurian, Cisalpine, and Roman Republics, shall be instructed to this effect. 3d. The provisions contained in the first article shall be notified to those powers which are neutral or allied to the French Republic. 4th. The Ministers of Exterior Relations is charged with the execution of the present arrêt which shall be printed in the Bulletin of the Laws. (Signed) TERILHARD, _President_. The message and documents were read, and ordered to lie on the table. TUESDAY, January 29. THOMAS SUMTER, from South Carolina, appeared and took his seat in the House. FRIDAY, February 1. JOHN FOWLER, from Kentucky, appeared and took his seat in the House. _Remonstrance of Georgia._ On motion of Mr. BALDWIN, the House resolved itself into a Committee of the Whole on the report of a select committee on the petition and remonstrance of the Legislature of Georgia; and the resolution reported by that committee being under consideration, its adoption was opposed principally by Mr. ALLEN. Mr. NICHOLAS thought the following resolution would be less exceptionable than the one reported, and it was agreed to--55 votes being in its favor. "_Resolved_, That provision ought to be made by law for complying with such treaty as the PRESIDENT OF THE UNITED STATES may think proper to make with the Creek Indians, and for obtaining possession, in behalf of the State of Georgia, of the lands lying within the country of Tallassee, or other lands on the frontier of the said State, which may be deemed equivalent thereto, and that ---- dollars be appropriated therefor." The committee rose, and after some further remarks from Mr. ALLEN, the resolution was concurred in--59 votes being in its favor. It was then referred to the select committee to report a bill. The House adjourned to Monday. THURSDAY, February 7. _Augmentation of the Navy._ On motion of Mr. JOSIAH PARKER, the House resolved itself into a Committee of the Whole on the bill for the augmentation of the Navy, and fixing the pay of the captains of ships or vessels of war; when the first section being under consideration-- Mr. GALLATIN moved to strike out the words "six ships of war, of a size to carry, and which shall be armed with not less than seventy-four guns each; and these shall be built or purchased within the United States;" in order to take the sense of the committee on the propriety of building, at present, ships-of-the-line. When this subject was last year before the House, the general opinion was, that during the present war, considering the crippled state of the French navy, frigates and vessels of a smaller size, were sufficient to protect our vessels on our own coast, and in the West India seas; nor did that opinion seem to have undergone any material alteration; for, although the Secretary of the Navy, and the select committee, had reported that the expense of building the six seventy-four gun ships now proposed, would amount to $2,400,000, yet the appropriation asked for the present year was only one million of dollars. It was not expected that much more than one-third of the work necessary to send those ships to sea, could be executed during the present year. It was not expected that they could be finished in less than two or three years. They were not wanted for any immediate purpose. The proposed measure was not therefore a measure of defence. It was a project of a general nature. The question is, whether it be proper, at the present time, to lay the foundation of a navy, of a fleet, that might be able, hereafter, to give us a certain weight in relation to European nations; which might be able to cope with the fleets of those nations: and it was in order to bring that question fairly before the Committee of the Whole that he had made his motion. Should that motion prevail, it would not affect the building of the six sloops of war which were said to be immediately wanted, in addition to our present naval force, for the purpose of protecting our commerce. It would merely prevent the building, at present, of a fleet which was supposed, by the friends of the bill, to be wanted only for future purposes. This led him naturally to consider the expense of that navy. It is stated by the Secretary of the Navy, that the annual expense of a 74-gun ship will exceed 216,000 dollars, and that therefore the annual expense of six of these ships will be about 1,300,000 dollars. That the building and equipping a 74-gun ship, exclusive of military stores, will be 342,700 dollars; and that the military stores will cost 48,000 dollars; so that the first building and equipping six of these vessels will cost about 2,400,000 dollars. This is the first expense, but nothing is said of the yearly repairing and building which will be necessary to keep up a fleet of this kind. It is estimated, in the navies of Europe, that a ship-of-the-line will last from 12 to 15 years; so that, besides ordinary repairs, the whole expense of building would have to be renewed every 12 or 15 years.[43] It would have been desirable, and it might have been expected, that the select committee should have laid before the House an estimate of the peace establishment of a navy to the extent proposed, in order to have enabled the House to have formed a just opinion on the main question. This they have not done; but supposing the other estimates to be perfectly correct; supposing that the expense would not overrun the calculations laid before the House, and, if so, it would be the first time it had not done it; supposing, according to those calculations, that a 74-gun ship will hereafter cost us less than two-thirds of what 44-gun frigates have heretofore cost us; it results, that the first necessary expense (including $150,000 for docks and timber) will exceed, for six ships only, two millions and a half of dollars; and that the annual expense of supporting them, when in commission, exclusively of annual repairs, and of building new ships, necessary to supply those that from time to time will become unfit for service, will amount to 1,300,000 dollars. If these premises are true, and he knew they could not be contradicted, the conclusion must be most forcible that it is improper at present to build a navy, especially since there is no immediate demand for it. But if once the foundation of a large navy is laid, no one can say where it will stop. The Secretary of the Navy does not suppose that six 74-gun ships will be sufficient. He supposes twelve necessary; six are now proposed merely as an entering wedge. And when once twelve ships-of-the-line are obtained, if our commerce and coast, extensive as they are, must be effectually protected, these will not be deemed sufficient. He drew this conclusion from the naval force of European nations. Our tonnage exceeds that of any European nation, except Great Britain and Holland; and if we must have a navy to protect our commerce, it must bear some proportion to the extent of our coast, to the amount of our tonnage, and to the navies of the European nations. And upon what terms are we to cope with the powers of Europe with respect to any navy? It would be recollected that when last year there was a mutiny on board the British fleet, in order to put an end to it, the sailors' wages were advanced to one shilling sterling per day, equal to thirty shillings sterling, or six dollars and two-thirds per month, whilst we give our seamen seventeen dollars a month, so that we pay nearly three times as much for men to supply our navy, as England does. Mr. G said, he would not detain the committee longer at present, though he meant to have made some observations with respect to the expense of navies to those nations who support them in order to show that the expense of them far exceeds the benefits derived from them. If reference were had to European nations, it would be found, Mr. G. said, that navies were used more as engines of power, than as a protection to commerce. Even with respect to Great Britain, which is the only nation which has succeeded in effecting any material object by a navy, though she has obtained a preponderancy at sea, and has been mistress of it for the last hundred years, yet it has been the means of involving her in almost continual war, and the support of it has always been attended with enormous expense. He believed he was correct, when he stated that from 1776 to 1789, the average expense of the navy of Great Britain (including a period of seven years of war and six of peace) was six millions of pounds sterling a year. Now, said Mr. G., if we calculate the rate at which we shall be obliged to pay for every thing appertaining to a navy, what will be the sum necessary to support a navy of any extent here? Suppose a navy should only be one-tenth part of the British, and instead of 120 ships-of-the-line, we should be content with twelve. The expense, according to the British rate of expenditure, would be £600,000 sterling, nearly three millions of dollars a year; but when we know that we pay three times as much for our seamen as they do, it is impossible precisely to calculate what the expense would be. In relation to European nations, it would be found, that none had ever derived any advantage from a navy, except Great Britain. It has been said (and by high authority) that an extensive commerce cannot be maintained without a navy. In answer to this it may be said, that Spain has always had a considerable navy, but very little commerce; their tonnage compared with ours was insignificant, yet theirs is the third navy in Europe. Holland, for a time, had a powerful navy; but they gave it up, as more expensive than beneficial, since the wars of Queen Anne. Yet their commerce, on this account, never diminished in any considerable degree. They are the second commercial nation in Europe; and they never suffer for want of a navy, except when they become a party in war; he conceived, therefore, that a navy is not necessary to protect commerce. At this time, Mr. G. knew that the commerce of Holland was in a great degree annihilated; but so was that of France and Spain, notwithstanding their powerful navies. Holland being at the door of Great Britain, may, in time of war, be altogether blocked up by the fleets of that nation. Fortunately that was not our situation. Mr. G. concluded by saying, that as he believed commerce might exist independently of a navy; that a navy would cost far more than it would ever benefit the country; and knowing our finances were not such as to admit of the expense, he must hope his motion would prevail. FRIDAY, February 8. _Augmentation of the Navy._ The House then went into Committee of the Whole on the bill for augmenting the Navy, Mr. GALLATIN'S motion for striking out what relates to 74-gun ships being under consideration. Mr. JOSIAH PARKER hoped this amendment would not be agreed to. He was happy to find, however, that the gentleman from Pennsylvania did not go farther, and oppose the whole force, as he had heretofore always opposed every thing like a navy. Indeed, he has acknowledged that our infant navy has done some service, though he does not give to it all the credit which the committee who reported this bill thinks it deserves. He attributes the fall in insurance to other objects than the navy, because he says it has fallen more on vessels to Europe, where our navy could have had no effect, than to the West Indies, where that effect was more likely to be produced. But the gentleman should have recollected that the fall to Europe may have been occasioned by the vigilance of the British navy; but in the West Indies, the British, or at least the officers of the British men of war, seemed rather to countenance, than prevent, the depredations of the French; as, in many instances, they have suffered captures to be made by the French, and immediately afterwards recaptured the vessels, and by that means obtained a salvage upon them. Nor did he suppose the British Government would regret these depredations, since they knew such treatment would serve to rouse the resentment of this country against her enemy. Mr. P. supposed that the saving produced by our navy had even been greater than the committee had supposed, as, by the report made yesterday on the subject of our exports, it appears they have been ten millions more than the committee calculated them at. He allowed that our navy had not been the sole cause of safety to our commerce; the British navy had also contributed greatly to it. But it would be recollected that when this navy was first fitted out, French privateers and picaroons were not only upon our coast, but in our very bays; and, but for these measures, there can be no doubt, but our shores would at this time have swarmed with French privateers, which the British would have suffered, in order to widen the breach between the two countries. Mr. P. hoped when the quantity of shipping, and the number of seamen we employ, is considered--that these are the means of bringing us from foreign countries all that we desire to have from thence, and that they thereby fill our treasury with money--gentlemen will not hesitate to allow our commerce a competent protection. No nation, except Great Britain, exceeds this country in the number of vessels and men engaged in this service, yet no nation has done so little to protect them. He trusted we should be allowed to have a sufficient navy to protect our commerce and coast, and to cause us to be respected abroad. The British Government, Mr. P. said, has 141 sail-of-the-line, (according to Steele's list, which he had lately seen,) and these, according to the opinion of the first statesman and politician that England ever possessed, Lord Chatham, require as many thousand seamen; not that each vessel requires 1000 men, but it is necessary to have this number in order to employ their frigates and sloops of war, not that the ships of the line require 1000 men; yet, though Britain has this immense navy, she has not double the number of merchant vessels and seamen which this country possesses. If, said Mr. P., these six 74-gun ships and six sloops are agreed to, we shall not want more than 12,000 seamen to man our navy. At present we have only 4,000; and the whole annual expense will be 4,230,149 dollars. Mr. P. believed, in order to give us efficient protection, we ought to have eleven sail-of-the-line; but as he considered six to be as many as our present finances will allow, he should be satisfied with that number. The gentleman from Pennsylvania wished to be informed as to the expense of a peace establishment of our navy. A large navy in time of peace would be unnecessary; he should wish it, however, to be kept on a respectable footing. Many of our ships, Mr. P. said, will last much longer than the gentleman from Pennsylvania had supposed; some of them, he doubted not, would last forty or fifty years. The British have ships which have been in service thirty years; when poorly built they may not last more than seven years. He had not made an estimate of what would be the expense of a peace establishment with respect to the navy; nor did he know what force the PRESIDENT OF THE UNITED STATES might think it necessary to maintain in time of peace, but he supposed it would be small, and a single officer and thirty men would be sufficient to take care of a ship where she is laid up in ordinary: that only a few of the best ships would be kept, and the others sold. The gentleman from Pennsylvania had represented the expense of a navy in this country as being much greater than in England; but when he spoke of the pay of British sailors being only one shilling sterling a day, he was certainly mistaken. They have at least a guinea and an half a month, which is seven dollars; and ours average fourteen dollars, which is double to that of England. If the same means were taken here that are taken in England, of raising men by means of press-gangs (which, however, he rejoiced never could be suffered in this country,) they might, perhaps, be gotten on easier terms, as the Government might follow the example of Great Britain, by fixing the pay and pressing the men. He would much rather pay higher wages; especially when it is considered that a very small part of the money paid to seamen will ever go out of the country; they spend their money freely, and the United States will not, therefore, lose it. And as to the number of men employed in the navy, if they were not thus employed in our own service, they would go abroad, since this is the employment they choose; indeed, if all our citizens were employed in cultivating the ground, our produce would be so great, and sell for so little, as to make it scarcely worth the trouble of raising. And if we do not provide for our own defence, we shall be at the mercy of every foreign power which chooses to insult or ill-treat us. The interests of commerce and agriculture must always go hand in hand; and farmers who now get so much better a price for their product than they heretofore got, ought to be the first in supporting a navy sufficient to protect our vessels in carrying that produce to foreign countries. When they see their interests more clearly, Mr. P. trusted they would, like the gentleman from Pennsylvania, be ready to allow that our navy is of service. It would be happy for us, and for the world, Mr. P. said, if there were no use for navies, and nations might be permitted to carry their productions wherever they pleased without annoyance; but, while nations continue to make war upon each other, we must expect to come in for our share of the evils of such a system, and it will be necessary to have some force not only to guard against injuries, but to keep foreign belligerent nations in check, lest we should throw our force into the scale against them. The French Directory, said Mr. P., have lately passed a decree, which ought to be considered as a declaration of war against the world, "that the citizens of neutral countries found on board of any of their ships shall be considered and punished as _pirates_!" Where is the man, exclaimed he, who will not defend his country and his fellow-citizens against such a decree? Mr. P. said he would take the liberty of quoting the authority, on the subject of a navy, of a gentleman who deservedly ranked high in public estimation, and whom he was proud to call his countryman. The authority he referred to was Mr. Jefferson's Notes on Virginia. He read the following extract. "But the actual habits of our countrymen attach them to commerce. They will exercise it for themselves. Wars, then, must sometimes be our lot; and all the wise can do, will be to avoid that half of them which would be produced by our own follies, and our own acts of injustice; and to make for the other half the best preparations we can. Of what nature should these be? A land army would be useless for offence, and not the best nor safest instrument of defence. For either of these purposes, the sea is the field on which we should meet an European enemy. On that element it is necessary we should possess some power. To aim at such a navy as the greater nations of Europe possess, would be a foolish and wicked waste of the energies of our countrymen; it would be to pull on our own heads that load of military expense which makes the European laborer go supperless to bed, and moistens his bread with the sweat of his brow. It will be enough if we enable ourselves to prevent insults from those nations of Europe which are weak on the sea, because circumstances exist which render even the stronger ones weak as to us. Providence has placed their richest and most defenceless possessions at our door--has obliged their most precious commerce to pass, as it were, in review before us. To protect this, or to assail us, a small part only of their naval force will ever be risked across the Atlantic. The danger to which the elements expose them here are too well known, and the greater danger to which they would be exposed at home, were any general calamity to involve their whole fleet. They can attack us by detachment only; and it will suffice to make ourselves equal to what they may detach. Even a smaller force than what they may detach will be rendered equal or superior by the quickness with which any check may be repaired with us, while losses with them will be irreparable till too late. A small naval force, then, is sufficient for us, and a small one is necessary. What this should be, I will not undertake to say. I will only say, it should by no means be so great as we are able to make it." Mr. P. perfectly concurred in this opinion. He had frequently expressed it. But the gentleman from Pennsylvania says we have no money, and therefore we ought neither to have a navy nor any thing else, to defend ourselves at home or at sea. He tells the House that our revenue will not exceed ten millions, and that if we agree to have these ships built, we shall want twelve millions. Mr. P. trusted that if these two millions were wanted the ways and means will be found, rather than that we shall suffer our commerce to be destroyed, and lose all our credit as a nation abroad. Admitting, said Mr. P., that our debt is a hundred millions of dollars, it must be recollected that its increase has been owing to a number of causes which could not be avoided, amongst which was our war with the Indians, the Western insurrection, our treaty with Algiers, and the building of vessels for the protection of our commerce; but if our debt is fifteen millions more now than it was at the commencement of the present Government, our numbers have greatly increased since that time, so that he supposed, considering the number of individuals who have to bear it, it is not so heavy, in proportion to our population, as it was at that time. Having the ability, therefore, he trusted there would be found the will to provide a respectable naval force to protect us at home, our commerce abroad, and leave us in a situation to be more respected by foreign nations than we have heretofore been, and therefore hoped the present motion would be rejected. Mr. HARPER.--Notwithstanding, Mr. Chairman, the subject now before the committee, the usefulness of a Naval Establishment for the United States, has been so frequently and so fully discussed on former occasions, I deem it important to enter once more into a particular consideration of it, less on account of the general reasons so often urged against the measure, than of those particular objections, founded on the supposed state of our pecuniary resources, whereby it has, at this time, been assailed. The gentleman from Pennsylvania has proved, as he thinks, that no possible navy could be equal to the protection of our commerce, extended as it is. And how has he proved this? By the example of other nations--of Holland, Spain, and Great Britain. Spain, he says, has a very considerable navy, perhaps the third in Europe, and yet no commerce. Holland found herself unable to support her navy, and even while she supported it, was unable to protect her trade; and therefore she gave it up, and yet, after she had done so, continued to possess a very great commerce. Even Britain, according to him, mistress of the ocean as she has been for a century past, has not fully protected her trade by her marine; which, in the mean time, has cost her more than the whole sum which her trade has yielded--and, therefore, she would have been better without a navy. This, Mr. Chairman, is the calculation of a schoolboy, not of a statesman; of the counting-house, not of the cabinet; and if the judgment of the gentleman from Pennsylvania were not warped on this, as on so many other occasions, by his particular political system, he would be one of the last persons in the world to present the subject in a point of view so much beneath a mind of the least political discernment. The gentleman, in fact, forgets that Britain is indebted to her navy, not for her commerce only, but for her independence; not only for the dominion of the seas, but for her existence as a nation. Every man, who is in the smallest degree versed in history, knows that Great Britain, but for her navy, must long since have been a province of France. Had not Britain been mistress of the ocean, France would long since have been not only her mistress, but mistress of the rest of Europe. That great people, uniting within itself all the sources of military, pecuniary, and maritime strength, has never ceased to contend for universal empire, with immense means, vast genius, boundless ambition and unwearied perseverance, since the period when, two centuries ago, its provinces became united under one Government, and its immense resources, managed and called into activity by a minister whose mind was equal to his station, were directed to the increase of its power and extension of its limits. How has Britain been enabled to check this formidable career, to maintain her own power, and to arrive at her present high pitch of consequence in the scale of nations? Not by her population, which is little more than one-third of that possessed by France; nor by her insular situation, which heretofore could not protect her from invasion and conquest; nor by her military power, which, when compared with that of France, has never been considerable--but by her navy. It was that navy, and the wealth which commerce, protected by it, poured into her lap, that enabled her to support with glory so unequal a contest, to call to her aid the military force of Germany, and thus to establish a counterpoise to the power of France. But for this naval force, and the commerce which it protected and cherished--but for this union, cemented by the money, and aided by the maritime preponderance of England--France, combining, as she did, greater means of strength of every kind than any other nation, or even than all the nations of Europe united, except Germany and Great Britain, must long since have established her dominion over all. England must have fallen first, being unable, without the command of the sea, to save herself from invasion; and then the powers of the Continent, deprived of the pecuniary aid wherewith England was enabled by her commerce, under the protection of her navy, to supply and unite them, would have bent, one after another, beneath her formidable and continually augmenting strength. Even now this same navy enables England to ride secure amidst the most terrible storm wherewith the political world has ever been afflicted; to brave all the tremendous dangers by which she has been threatened; to baffle every attempt against her safety, or that of her remotest possessions; and amidst the dismay, the humiliation, or the total overthrow of so many powers, to triumph over her rival, whose strength, always formidable, is exercised, not more by her extension of territory and of influence, than by the consternation wherewith her successes have stricken other States, by the disunion and feebleness which has characterized their counsels, by the terrible weapon of internal commotion with which she threatens, or has actually assailed them, and by the unheard of despotism of her own Government, which enables it to employ, in a degree hitherto unexampled in the history of civilized men, the physical forces of the nation, in executing its plans of plunder and conquest. This same navy enables England not only to maintain thus gloriously a conflict so dreadful and so unequal, but to stand the barrier between independence and universal dominion, between liberty and the most degrading despotism, between civilization and the barbarism of the dark ages--to become the citadel of property, the storehouse and the banker of the world, and to render all nations, with their own consent, tributary, by means of her commerce, to the support of her greatness. What, then, Mr. Chairman, must we think of that political system which estimates the British navy by a calculation of the sums which it has cost to maintain it; forgetting that, without this navy, there would have been no wealth to supply these sums, and, perhaps, no nation to pay them; that without this navy, Great Britain, instead of holding her present exalted station among the powers of the earth, must long since have sunk into a secondary and unimportant State; and, probably, into the condition of a province of that very rival against whom she now so nobly and so gloriously contends! Is it too much to say of such a calculation, that it is a paltry calculation, unworthy of a statesman, and befitting only a schoolboy? But even the navy of Great Britain, the gentleman from Pennsylvania has told us, formidable as it is, has not afforded complete protection to her commerce. How, then, he asks, can we expect to protect our commerce by a navy? If the gentleman means by "protection" the total prevention of captures at sea, it is certain that no nation ever did, or ever can protect its commerce, in that scale. But that is not the true idea of "protection," which means nothing more than such a degree of safety as may enable the merchants of a nation, taken as a body, to pursue their commercial enterprises without discouragement, or eventual loss. This is all the protection that is ever attempted, or that is necessary; and this, I contend, we have it in our power to give. Respecting the navy of Holland, the gentleman from Pennsylvania falls into a mistake equally remarkable. Holland, he tells us, has no navy, and yet maintains a very great commerce. Formerly she had a navy, but could not maintain it, and was forced to give it up. But where did that gentleman learn that Holland has no navy? Had she no navy in the American war, when with great gallantry, though with unequal success, she fought the English at sea? Had she no navy when she fitted out the formidable armament under De Winter, in October, 1797, which, after a dreadful conflict, was defeated rather by the superior address of the British Admiral, than the superior force or bravery of his fleet? Do we not know, that even now, after this fatal defeat, she possesses, in her different harbors, a much more numerous fleet than is proposed by the present bill for the United States? How then could the gentleman from Pennsylvania say that Holland has no navy? He ought to have known that until the marine of France and Spain were destroyed, in the present war, that of Holland was sufficient to turn the scale in their favor and against England; which gave her not only security for her commerce, but respectability and weight among the maritime powers of Europe. As to the other assertion of the gentleman from Pennsylvania, that Holland a long time ago found her navy too burdensome for her resources, and therefore gave it up, it is equally erroneous. Holland, as we have seen, never gave up her navy, and even now, exhausted and ruined as she is by French fraternity and internal revolution, maintains a much greater one than is proposed for the United States. There is, indeed, a period in her history, the close of the last and the beginning of the present century, when she ceased to be ranked with the first maritime powers of Europe; but that happened, not through the want of means, but a mistake in policy. Before that period her system had been wholly maritime. All her resources were applied to her navy. A maritime armed neutrality was her great object, and she long preserved it with success. Her commerce, fostered by her marine, spread over every sea; and the Northern maritime States, guided to the same policy by her influence, acknowledged her as their umpire, their mediator, and their safeguard. The great powers courted her alliance and respected her rights. She interfered with weight in their disputes. Her village of the Hague became the centre of their most important negotiations. She disputed the empire of the seas with them singly; and, at one time, she held the united forces of France and England in check at sea, and finally compelled the French armies to retreat from her territory, which they had overrun and occupied. All this she effected by means of her navy, and of the resources which it had furnished to her by the protection of her commerce. At this period she altered her system, and instead of cherishing her marine, and confining herself solely to the maintenance of her commerce, by an armed maritime neutrality at the head of the Northern Powers, she engaged in the land wars of the great military powers, and made exertions disproportionate to her strength, whereby her resources were exhausted. Into this fatal mistake she was drawn by the aspiring ambition, the popularity, and the heroism of one of her own citizens, stimulated and aided by the aggressions, the insults, and the alarming encroachments of the French Monarch, Louis XIV., at the zenith of his glory, evidently aspiring to universal dominion. William III., placed by his birth and personal merit at the head of the Dutch nation, saw those objects of French ambition, and roused his own country to resistance. Called, at length, to the Government of England, he communicated to that nation his own martial ardor. He finally succeeded in forming a confederacy to check the progress of France. Of this confederacy, Holland, his native country, was induced by his influence to become a principal member. At the head of it he struggled against the power of France, with unequal means, and sometimes with unprosperous fortune, but with a genius and perseverance not to be subdued, and a heroism rarely to be equalled. After his death, the impulse which his mind had given to his own and other countries continued to be felt, and the confederacy was renewed under his successor, on a different occasion, but with the same views. At length its object was altered. France was completely humbled and Europe secured against her enterprises, but the strength of Holland was undermined in the struggle. The vast armies which she had kept up had loaded her with debts. Her operations for so many years, by land, had drawn off her attention from her marine; and from that moment it declined, while that of England rose gradually on its ruins. Hence, Mr. Chairman, the downfall of the maritime greatness of Holland. Her resources were not equal to the maintenance of fleets and armies, of both maritime and military strength. While she was left to attend solely to her maritime concerns, she continued to be powerful, respected, and prosperous; but her situation on the Continent, in the neighborhood of a great and ambitious military power, drew her, perhaps unnecessarily, into land wars, to which her strength was unequal, and, of course, her naval power declined. But still she continued for a century to keep up a navy sufficient to form a considerable weight in the scale, and to secure attention to her rights as a nation; and under this security her commerce continued to flourish, in a greater or less degree, till a domestic revolution, aiding and aided by foreign oppression, dried up all its sources. What, then, Mr. Chairman, is the instruction which we may draw from this example? A nation whose population never exceeded two millions and a half, and whose territory, compared with ours, is but a mere speck on the surface of the globe, a mere garden spot, was able to maintain a most formidable marine, while it attended to that object solely, to extend its commerce under the protection of this marine, and to maintain not only an equal, but a distinguished rank, among the great powers of Europe, by whose territories it was surrounded, and by whose formidable armies it was liable to be invaded. Even this nation, after a mistake in its policy, or the pressure of inevitable circumstances, it had been induced to divert its attention from its marine to land wars, to exhaust its resources, and burden itself with debts too great for its means, by these disproportionate efforts, still was able to preserve a navy sufficient to give respectability to its flag, and a degree of safety to its commerce. Even now, when its resources are dried up by anarchy, or diverted by foreign exaction into the coffers of another nation; when its territory is curtailed, and its population reduced to one million and a half; when it is compelled to maintain an army of 25,000 men for France, still it has a navy greater than we propose. Shall it, then, be said, that this country, with probably six millions of population, most rapidly increasing, with an extent of territory capable of containing fifty millions, with a commerce greater than that of Holland ever was, and with more tonnage and sailors than she ever possessed, is not able to support such a navy as she, even since the commencement of her downfall, has always supported, and still supports? Yes, it is said by the gentleman from Pennsylvania; but the good sense of this House and of this country will, I trust, correct his mistake, as it has so often done heretofore. But if it were true, Mr. Chairman, that Holland had afforded no protection to her commerce by the navy which she has been able to keep up, does it follow that the same thing will happen to us? Will the same navy be more efficacious in our case, than in the case of Holland, or Spain, or Portugal? This must be taken for granted in order to give any solidity to the argument of the gentleman from Pennsylvania, and yet nothing can be more untrue. Those States are situated at the very door of the great maritime powers, and their dominions are also exposed to invasion by land. They must, therefore, either singly or by combinations with other powers, contend against the whole maritime force of those great States, and must maintain navies adequate to that purpose. But we are under no such necessity. Placed at a vast distance from those great powers, and in the neighborhood of those possessions which contribute most to the support of their commerce and their navies, we can attack them in a weak, and yet a vital part, with our whole force, while but a small part of their force can at any time be brought to act against us. It is with this part only that we shall have to contend, should they at any time drive us into a war. Let us take England as an instance. Her great and valuable possessions lie at our threshold. The uniform course of the trade-winds compels all her vast and rich commerce with those possessions, to pass almost in sight of our shores. The force which she can send to protect this commerce and annoy us, in case of a rupture, will not be her whole force, but that part of it only which she can spare from Europe, after securing her preponderance there. France, notwithstanding the prostrate condition of her navy at present, possesses maritime means which will speedily enable her to raise it up again, whensoever those means come to be directed, as one day they must, by a Government of some understanding. This navy, and the maritime combinations which will be formed under its protection, England must watch and keep under. Her existence will depend upon it. She will, therefore, have but little force to spare which she can bring to act against us. A comparatively small maritime force, therefore, will compel her to respect us, and to avoid a quarrel with us by all just and reasonable means. It follows that a moderate navy, a much smaller one than Holland, Spain, or even Portugal, have supported, would be sufficient for our protection, aided by the peculiar advantages of our situation. Those nations, inconsiderable as they are when compared to us in population, wealth, and extent of territory, have supported navies which, however unequal to that of England, have yet afforded some degree of protection to their trade, rendered their flags in some degree respectable, and given them a weight in the scale, a consequence among nations, which otherwise they could not have had. And shall not we, with our great and increasing resources, and the peculiar advantages of our situation, be able to effect still more? Mr. NICHOLAS said this question was different from any former question, with respect to the Navy, which had been before the House. Whatever gentlemen may have heretofore said with respect to the advantages of a navy for the protection of our commerce, they must agree that the present question has a different aspect, as no man can say that seventy-four gun ships are calculated to resist the kind of force which has heretofore made attacks upon our commerce in the West Indies. Mr. N. was far from believing that our armed vessels had produced the effect which the committee, who reported this bill, stated them to have done. He thought the gentleman from Pennsylvania had adduced many sufficient reasons for the fall which had taken place in the price of insurance, independent of our navy; and that, therefore, the committee were wholly mistaken that the advantages already derived from our navy have exceeded the cost of it; and that, if it had been established several years ago, it would have proved a great saving to the United States. Mr. N. confessed he had always been opposed to a naval force for the purpose of warring with European nations, and whether the force now proposed is considered as necessary for defence or offence, it must have that character. The propriety of a naval force for this purpose never appeared to him in a questionable point of view; he thought every consideration of policy and interest forbids it. We are well informed, said he, by the best historians, that the British navy has been the means of sinking that nation to its present state; for he could not admire, like the gentleman from South Carolina, the splendor and prosperity of a nation, which is brought into such a situation as to render it doubtful whether it can exist for a day, a month, or any other period. If the navy of Great Britain, then, commenced under different circumstances from those in which we are placed--which, according to the gentleman from South Carolina, was not only for the protection of her commerce, but as a defence against neighboring nations, and to guard against the worst revolutionary principles--has nearly ruined that country by the immense sums necessary for its support, shall we, who, according also to the confession of that gentleman, have nothing to fear from European nations--[Mr. HARPER interrupted Mr. N. to deny that he had said we had nothing to fear from Europe. He had said we had nothing to fear but from the sea.] Mr. N. said this was the way in which he understood the gentleman, and that no danger exists of any invasion by a land force. If this is the case, the use to which a navy can be put will only be to defend our commerce from cruisers, and passing fleets. We have not, therefore, half the inducements to the establishment of a navy which influence European nations, and many powerful reasons against such a force. The European nations have, most of them, distant colonies, which they have to protect, and with which they have to keep up a constant communication across the ocean, which renders a navy in some degree necessary. But all the European nations commenced their navies under the delusion that a small force would only be necessary, and that one or two ships would give them an ascendency over other nations. Can we expect this, said Mr. N.? No; we begin the business with fewer inducements than any other nation ever begun a navy, and without necessity; for it is acknowledged we have nothing now to apprehend from invasion, (and if we had, this force could not be provided in time,) we have no colonies to protect, and no intercourse which calls for a naval force. We cannot, therefore, said Mr. N., embark in this business with the same motives which influenced all European nations in establishments of this kind. They built small navies because they would be equal to cope with the small navies of their neighbors; but we are about to begin the business with a navy staring us in the face, the most formidable that any man could suppose to exist. According to his colleague, the British have 140 sail-of-the-line; and yet our navy is undertaken with the avowed purpose of keeping her, as well as the other nations of Europe, in check. Mr. N. asked whether we could ever hope to succeed in a plan of this kind? We certainly could not, since Great Britain would always even in war have more than a sufficient force to meet all the ships which we can build. Besides, if our situation, as gentlemen say, will make a small force so operative in our hands in time of European wars, will not our possessing it be sufficient to produce war with Great Britain, when it is always a sufficient cause for war, in the opinion of Great Britain, for any other maritime power to put a few more ships in commission than their ordinary establishment? And, if Congress were to order the building of fifty ships, it would only increase the certainty of this effect. How is a naval force to guard us, which Great Britain can destroy, whenever she pleases, even in time of war? For she has frequently ships sufficient on our coast to destroy all the vessels which are contemplated to be built. In short, this navy will be the means of keeping this country in continual broils. On the first appearance of arming any additional vessels on the part of Great Britain, for whatever cause, we must set on foot a negotiation to combine the other powers of Europe in our favor; and this country will become the centre of intrigue and tricks for the agents of every country. But the gentleman from South Carolina says, this is the cheapest mode of defence; but does the gentleman prove this? Can he prove that £10,000,000 sterling is only the third part of the expense of defence, as he says? Does he not recollect how much of the revenue of that country goes to pay the interest of their enormous debt, and, therefore, cannot be considered as a part of the expenditure for defence? The gentleman will find, on reflection, he is much mistaken in his calculation in this respect. The gentleman from South Carolina has been loud in his encomiums on the British navy, on account of its usefulness to the world; and he calls the calculation of the gentleman from Pennsylvania, relative to the expenses of a navy, a paltry, schoolboy calculation, because it has not taken into view this usefulness. That gentleman, said Mr. N., only referred to the British navy so far as it was useful in the way gentlemen say they expect ours to be advantageous. But from the contradictions which the gentleman from South Carolina seemed to run into on this subject, he did believe that he had not an eye to a navy, merely for the defence of our commerce; he appeared to wish that this country should take a stand like that of Great Britain, that the safety of the world may, at a future day, depend upon us, as it now does upon Great Britain. Mr. N. believed the ambition of this country, the pride of its Government, and naval commanders, will all operate this way; and we may, one day or other, if we proceed with this navy scheme, be as aspiring, as domineering, as any other nation in the world, and by this means be embroiled in continual war, and be saddled with a debt equal to that of Great Britain. Mr. N. believed there existed no good reason for going into the establishment of a navy at all, because he believed it would never be really useful to this country; but if it should be otherwise determined by a majority of Congress, this, he thought, of all times the most improper to commence the work. Mr. J. WILLIAMS then moved to strike out what relates to 18-gun vessels, on the ground that the thirty-nine small vessels which we have are sufficient. The motion was negatived without a division. Mr. J. PARKER proposed filling up the blanks in the section fixing the pay of captains in the Navy, with an advance from $75 to $100 per month to captains of 74's, and others in proportion; except the masters of vessels under 20 guns, which were proposed to be lowered. Some objection, however, being made to this, and particularly to the mode of doing the business, this being the first time that the subject had been before the House, the section was moved to be struck out, and carried. The committee then rose, and the House having concurred in the amendment reported, Mr. NICHOLAS renewed the motion for striking out the 74-gun ships, and called the yeas and nays upon it. They were taken and stood, yeas 40, nays 54, as follows: YEAS.--Abraham Baldwin, David Bard, Richard Brent, Robert Brown, Samuel J. Cabell, Thomas Claiborne, William Charles, Cole Claiborne, John Clopton, John Dawson, Joseph Eggleston, Lucas Elmendorph, William Findlay, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Thompson J. Skinner, William Smith, Richard Sprigg, Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. NAYS.--John Allen, George Baer, jun., Bailey Bartlett, James A. Bayard, Jonathan Brace, David Brooks, Stephen Bullock, Christopher G. Champlin, James Cochran, William Craik, Samuel W. Dana, John Dennis, George Dent, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Isaac Parker, Josiah Parker, Thomas Pinckney, John Read, John Rutledge, jun., James Schureman, Samuel Sewall, Thomas Sinnickson, Samuel Smith, Richard Dobbs Spaight, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Alen, Peleg Wadsworth, Robert Waln, and John Williams. The bill was then ordered to be engrossed for a third reading [and passed by the same vote].[44] THURSDAY, February 14. _Relations with France._ Mr. LIVINGSTON called up for consideration the resolution which he yesterday laid upon the table, calling upon the PRESIDENT for any information which he may possess touching the suspension of the French arrêt, declaring neutral citizens pirates when found on board the vessels of belligerent powers; which being read, Mr. L. called the yeas and nays upon it. He said he understood that, since yesterday, a member of this House had applied at the office of the Secretary of State, and had been informed that some information had been received relative to this subject. Perhaps the gentleman would himself state to the House what he had learned from that office. Mr. HARPER said, he had only to state, that he had made inquiry at the office of the Secretary of State, and had been informed that a letter had been received from our Minister in London, enclosing an extract from the _Redacteur_ (supposed to be an official French paper) stating that the Executive Directory had suspended the edict in question. This extract, he understood, does not state the reason of this suspension; but our Minister writes it was owing to a threat of the British Government to retaliate upon French citizens within their power. The yeas and nays were taken, and stood--52 to 38. _Naval Pay._ On motion of Mr. JOSIAH PARKER, the House resolved itself into a Committee of the Whole, on the bill fixing the pay of captains of ships and vessels of the United States; and after some amendments, the bill was reported, and ordered to be engrossed for a third reading. [This bill provides "that all vessels in the service of the United States, mounting 20 guns and upward, be commanded by captains; those not exceeding 18 guns (except galleys, which are to be commanded as heretofore provided by law,) by masters or lieutenants, according to the size of the vessel, to be regulated by the PRESIDENT OF THE UNITED STATES; that the pay of a captain, commanding ships of 32 guns and upward, be $100 dollars per month, and eight rations per day; of captains, commanding ships of 20 and under 32 guns, $75 a month, and six rations a day; of a master-commandant, $60 per month, and five rations per day; and of lieutenants who may command the smaller vessels, $50 dollars per month, and four rations per day; that whenever any officer as aforesaid shall be employed in the command of a squadron, in separate service, the allowance of rations to such commanding officer shall be doubled during the continuance of such command, and no longer, except in case of a commanding officer of the Navy, whose allowance, while in service, shall always be at the rate of sixteen rations per day."] FRIDAY, February 8. _Relations with France._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the House of Representatives_: In pursuance of the request, in your resolve of yesterday, I lay before you such information as I have received, touching a suspension of the arrêt of the French Republic, communicated to your House by my Message of the 28th of January last. But if the execution of that arrêt be suspended, or even if it were repealed, it should be remembered that the arrêt of the Executive Directory of the 2d of March, 1797, remains in force, the third article of which subjects explicitly and exclusively American seamen to be treated as pirates, if found on board ships of the enemies of France. JOHN ADAMS. UNITED STATES, _February 15, 1799_. _Extract of a letter from Rufus King, Esq., Minister Plenipotentiary, &c., London, to the Secretary of State, dated 28th November, 1798._ "Annexed I send you a copy of a note from Lord Grenville, respecting the French arrêt transmitted to you with my No. 9. A late French paper contains a second arrêt which postpones the execution of the first." _Lord Grenville to Mr. King._ The undersigned, His Majesty's Secretary of State for Foreign Affairs, has the honor of communicating to Mr. King, Minister Plenipotentiary for the United States of America, for the information of his Government, that, by a decree, published officially at Paris, it appears to have been declared, in the name of the French Directory, that every person being a native of or originally belonging to neutral countries, or to such as are in amity and alliance with the French Republic, who shall bear any commission under His Majesty, or who shall form a part of the crews of any British ships of war, or other vessels, should, on the proof of that fact alone, be considered and treated as a pirate, and that it has been ordered that this resolution shall be notified to the neutral powers, and to those in alliance with France. Even this decree, contrary as it is to the usages of every civilized nation, cannot excite any surprise, as proceeding from those in whose name it has been published. To the different powers who are thus insulted, and whose innocent subjects are exposed to the most cruel treatment on the part of a Government professing friendship or alliance with them, His Majesty must leave it to adopt such measures as they will, without doubt, judge necessary, in the case of an outrage hitherto unexampled in the history of the world. The King, however, feels, that protection is also due from him to those who sail under his flag, either in His Majesty's ships of war, or in other British vessels; His Majesty has, therefore, not hesitated to direct it to be signified to the Commissioner for French prisoners in Great Britain, that the first instance of the execution of this decree shall be followed by the most rigorous retaliation against the French prisoners, whom the fortune of war has already, or may hereafter place at the King's disposal. It would certainly never be but with extreme reluctance that the King could yield to the painful necessity of exposing so many unfortunate individuals to the fatal but inevitable effects of this atrocious decree; but His Majesty will have at least the satisfaction of feeling that nothing has been omitted on his part to prevent its execution, and that the authors of it can alone be considered responsible for all its guilt and all its consequences. GRENVILLE. DOWNING STREET, _November 27, 1798_. Mr. LIVINGSTON moved that this communication be printed. Mr. ALLEN objected to the motion as it would delay the consideration of the bill proposing to vest the PRESIDENT with the power of retaliation in certain cases; and it was clear, from this communication, it ought to have no effect upon that bill. Mr. LIVINGSTON said he was not possessed of that intuitive faculty which the gentleman from Connecticut seemed to have, as he seems prepared to act on the bill alluded to, without scarcely hearing this communication read; and, perhaps, without knowing the dates of the different decrees. The PRESIDENT has told the House that though the obnoxious decree has been repealed, there is still left in force another decree. Does the gentleman from Connecticut recollect the words of that decree? Or has he had time to examine whether that decree is really in force, or not? If he had done this, Mr. L. said he had not done it. It would appear, from what happened the other day, that the House ought not to move quite so rapidly in this business. The House was then told by the gentleman from South Carolina, that it was impossible that this information could have been received by the PRESIDENT, because, if it had been received, the PRESIDENT would undoubtedly have immediately sent it to the House. [Mr. RUTLEDGE said, he did not use the word impossible, but improbable.] Mr. L. admitted this might be the word. But it now appears, that the PRESIDENT has not only received the information then alluded to, but received it officially. Mr. ALLEN interrupted Mr. L. by withdrawing his motion. The communication was ordered to be printed, and was committed to the same Committee of the Whole to whom was referred the bill vesting the power of retaliation in the PRESIDENT. MONDAY, February 18. _Army Increase._ A bill from the Senate giving eventual authority to the PRESIDENT OF THE UNITED STATES to augment the army. [This bill gives the PRESIDENT authority, in case a war shall break out between the United States and any foreign power, or in case of imminent danger of such war, in his opinion to exist, to organize and raise twenty-four regiments of infantry, one regiment of riflemen, and three regiments of cavalry. The PRESIDENT is also authorized to call out the volunteer corps, on all occasions in which he is at present authorized to call out the militia, provided that he does not call a greater proportion from any one State, than he is authorized to call out of the militia, by the law which directs the 80,000 militia to be held in readiness. If it be necessary to carry this law into effect, two millions of dollars are appropriated for the purpose.] On the question for reading this bill a second time, it was carried--45 to 37. _Capture of French Vessels._ On motion of Mr. OTIS, the House went into a Committee of the Whole, Mr. RUTLEDGE in the chair, on the bill encouraging the capture of French armed vessels, by armed ships or vessels, owned by a citizen or citizens of the United States, and for allowing salvage in certain cases. The bill, which proposes a bounty on guns, according to their sizes, having been read, Mr. MCDOWELL observed, that this bill is similar to the one which was two or three different times negatived at the last session. At that time, he considered the situation of this country more alarming than at present, and the conduct of France more likely to drive us to extremities than it has since been. Knowing this, he did not expect gentlemen would have introduced a bill of this kind. Finding however that gentlemen are not satisfied with things as they are, but are desirous of hiring the people of the United States to make war upon France, though they are unwilling to declare war, and not being willing to give his vote to any such measure, he should move to strike out the first section of the bill. The question was put, when there appeared 43 votes for it, and 42 against it, and the Chairman said "it is carried," before he declared his vote to be in the negative. A motion was made for the committee to rise, and negatived--43 to 42. WEDNESDAY, February 20. MATTHEW LYON, from Vermont, appeared, and took his seat in the House. _Alien and Sedition laws._ Mr. LIVINGSTON said, he had received, under cover, a number of petitions from the State of Vermont, praying for a repeal of the alien and sedition laws, which he begged leave to present to the House. One of which having been read, in which, among their other objections to the laws, the petitioners complain of having been deprived, by the sedition law, of their Representative in Congress for the greater part of the present session; Mr. L. moved to have the whole referred to the select committee to whom was referred the other petitions relative to this subject; but on Mr. GALLATIN's suggesting that he understood that committee is ready to report, and that it would therefore be better to suffer the petitions to lie on the table until that report is made, and then have the whole referred to the same Committee of the Whole; that course was taken. _Capture of French Vessels._ The House took up the report of the Committee of the Whole on the bill for encouraging the capture of French privateers, by allowing a bounty on guns, and the motion being to concur in the agreement of the committee to strike out the first section of the bill, Mr. MACON said, there were some other observations made the other day, when this subject was under consideration, which he thought very foreign to the subject. The history of this bill during the last session was given. The House was told it was three times rejected--once by trick. He was surprised to hear two gentlemen make use of this expression. If there was any trick, it certainly was among those gentlemen who had so frequently brought the subject before the House. It had been said, also, that it was once rejected by accident. It was the first time he had ever heard it urged as a reason for reconsidering a subject, that certain members had before voted accidentally upon it. Another reason was given, that the vote in the Committee of the Whole had been improperly obtained, by taking advantage of a mistake of the Chairman. By the rules of the House, Mr. M. said, the Speaker, or Chairman of a Committee of the Whole, has a casting vote, or they may tie a vote; but, after the Chairman had declared the question carried, it might be supposed he did not mean to vote, or if he did that he meant to vote with the majority. Mr. M. said, he had seen a letter printed in the papers from one of our naval commanders in the West Indies, wherein he says, that American vessels sail into the neighborhood of the French islands, in order to be carried in; that they afterwards get away, pretending to have made their escape, and soon return with another cargo. He also mentions having fallen in with one of these vessels evidently steering for a French island, but the vessel's papers were so well managed, and the captain and mate understood each other so well, that he could make nothing of them. If, said Mr. M., the laws for suspending our intercourse with France and her possessions can be so easily evaded, might it not be expected that this law would be evaded, and that privateers might be fitted out in the West Indies, and brought to a certain latitude, for the purpose of being taken? He had no doubt this would be the case. Mr. MCDOWELL said, that when this bill was before under discussion, he had stated that our situation with respect to France appeared to be more favorable than last year. This was denied by the gentleman from Massachusetts (Mr. OTIS.) He considers our danger greater, and this bill more necessary than at that time; and has gone on to remark, that all that was said about our improved situation with respect to France, were songs only fit for children, and not for the people of America. He was of a different opinion; they were the songs of peace, and as such, he believed, suited to the people of this country, who wish to live in peace. And if that gentleman knew more of the evils attendant on war than he does, he certainly would not be so ready to embrace them as he appears to be. But he thought the gentleman from Massachusetts mistaken as to our situation; he believed it to be much better than it was at the last session. He formed this opinion from the despatches of Mr. Gerry, who declares it to be his opinion, that France is sincerely disposed to make peace; and more particularly from the PRESIDENT having nominated a Minister to treat with France, though he had declared he never would send another Minister until he should receive assurances that he would be received as the Minister of a great, free, and powerful nation. He supposed, therefore, that the PRESIDENT has received these assurances, and that we have, on this account, some reason to hope, that a reconciliation between the two Governments will take place. He was opposed to this bill, because it might be the means of bringing the country into difficulties and war; it was giving to one part of our citizens the power to embroil the whole. No necessity has been shown to exist for this law; it is, indeed, said to be necessary to keep down the privateers of France, but we find by letters which have just been published, from the commanders of our armed vessels, that there are very few to be seen. But supposing there are yet a number of them, what better use can our public armed vessels be put to than to go after them? They must either be employed in doing this, or sent where he did not wish them to go, to the European seas, or kept useless at home. Mr. GALLATIN would not have troubled the House on this subject, had it not been for the remark of the gentleman from Massachusetts (Mr. OTIS) immediately before the adjournment took place on Monday. He told the House that the vote on this subject ought not to be influenced by the nomination of a minister to go to France; and he precluded any answer being then given to the remark, by moving an adjournment. For my part, said Mr. G., I do not consider this bill as very important in itself, and I have always been at a loss to know why there appeared to be so great an anxiety to have it passed. It is said, we ought not to recede from the ground we have taken; and really, from the arguments of the gentleman from Massachusetts, it would appear that there was a motion before the House to prevent our merchants from arming their vessels, or our public vessels from taking French privateers. This measure brings us to the question, not whether we will recede, but whether we will progress. The object of this bill is not to authorize any new measure, but it is to give a bounty to merchants to do what they are already authorized to do. The only question is, whether it will promote the taking of French privateers? He believed it would produce no effect at all, except the blanks in the bill are to be filled with sums which would produce a very serious demand on our treasury. The object of merchants is to make a safe and quick voyage, and if privateers will keep out of their way, they will never go in search of them: and if they should fall in with a privateer, their aim would be self-defence, and not capture, since to attempt this might hazard the loss of their vessel and valuable cargo, and take from them means of defence against any other attack, since they must put their own men on board the captured privateer. It is clear, therefore, said Mr. G., that one of two things must take place, either we must give such a bounty on the guns of privateers as will make the expense of taking them greater than the benefit, or else it will become a mere matter of speculation, or small vessels will be fitted out on purpose to obtain the bounty. When privateers are taken by other countries, they are always taken by their vessels of war, and seldom by letters of marque. But it is said this measure ought to be taken, in order to strengthen the hands of our Minister, by showing our determination to resist, in case an accommodation does not take place. On the same grounds, Mr. G. said, a declaration of war might be urged. As to the effect to be expected from the appointment of a Minister to treat with France, he considered it merely as opening a door to negotiation. He agreed with the gentleman from Massachusetts, that it ought by no means to be considered as putting an end to the dispute between the two countries. It may succeed, or not. But this step having been taken, he did not think proper to go into a measure of this kind, especially since it can be attended with so little good effect. Mr. JOSIAH PARKER said, when he gave notice to the House on Monday of the nomination of a Minister to go to France, and declared that, on that account, he should vote against this bill, he did not do so because he was willing to relax from any of our measures of defence or offence against the French; but because he thought the measure proposed by this bill puerile and ineffectual, and therefore unnecessary. When he made this declaration, he was sorry to differ in opinion from the gentleman from Massachusetts, with whom he had had the honor to vote very frequently. At the same time that he said this, he declared himself ready to abide by every measure of defence yet adopted, and even to take higher ground than has yet been taken: for he had no opinion either of the magnanimity or sincerity of the French Republic. He believed they had no desire for peace, except such as arose from their changed situation. He thought it better, however, not to go into any little, irritating measure, like this. The PRESIDENT had heretofore told the House that he would never send another Minister to France until he received assurances that he would be properly received; he believed the PRESIDENT had received these assurances from the French Minister at the Hague, through our Minister there. Mr. P. thought the second section of this bill, allowing a salvage on the retaking of any of our vessels, ought to pass; the first he hoped would be struck out. Mr. PINCKNEY was sorry to differ in opinion from the gentleman just sat down as to the expediency of passing this bill. He did not think it a measure of great importance; but, as an additional measure of defence, it may have some effect, and he was therefore for agreeing to it. He thought the gentleman from Pennsylvania (Mr. GALLATIN) had put the prospect of a negotiation with France upon a proper footing; and he agreed with that gentleman that we ought not to vary the ground we have already taken; but he did not think that any augmentation of force would be going off the ground originally taken. What, asked Mr. P., was the ground taken at the last session, and acted upon at this? It was, that we should, by all means in our power, prepare for our defence, more especially that we should add to every measure of defence to which our revenue is adequate, on the ocean. We have shown this to be our determination both at the last session and this, and our preparations have only been limited by our ability to make them. This measure, therefore, is a continuance of the same ground. This bill reverts, therefore, altogether upon the question of expediency, and this he thought the proper footing on which to place it. The gentleman from Pennsylvania has objected to its expediency, because he says it will be inefficacious. Mr. P. would give a short answer to this, which was, that its expense will be commensurate with its utility. There is no doubt, if it has any effect at all; if it induces any private armed vessels of the United States to bring into our ports privateers which are depredating on our commerce, no moderate reward could be too great to be given for this advantage. And if there is nothing done; if the law proves ineffectual, then the public is nothing out of pocket. It is one of those cheap expedients which may be beneficial, but which can have no bad consequences. Mr. HARPER believed that gentlemen, in their deliberations on this subject, have fallen into some mistakes as to the course which this bill took at the last session. Mr. H. gave the history of this bill, and also spoke of the decision which had taken place in Committee of the Whole as by no means conclusive. On the general policy of the measure, he was not inclined to make any observations. He believed it was well understood; but he would not omit this occasion of declaring, that, in his opinion, its policy had not been changed by the nomination which has taken place of a Minister to treat with the French Republic. It is said that an intimation has been made, not through the Dutch Minister, but through the Secretary of Legation at the Hague, to our Minister there, that the French government is disposed to receive any Minister Plenipotentiary which we may choose to appoint, suitable to the dignity due to the representative of a great, free, and independent nation. This intimation having been given to the PRESIDENT, he has thought it proper to meet the advance so far as to nominate a Minister, which Minister is to go to France, provided he shall receive assurances of being properly received, and a Minister of equal rank appointed to treat with him. This change, Mr. H. said, from haughty insolence; from the expulsion of our Minister; from a demand of tribute; from requiring apologies for speeches; from outrage and insult, to the mild language of supplication, must certainly have been owing to the measures of this Government, and therefore clearly evinced the policy and propriety of these measures. We have thus far, said Mr. H., seen the good effects of buckling on our armor, at the same time that we hold out the olive branch. And instead of relaxing, we ought now to brace up the system; not that he would wish to take any new ground but merely reinforce and invigorate the system already established. This he thought the true policy of this country. Whether this application for a negotiation on the part of the French Republic may arise from sincerity, or from a wish to wheedle this country to their own advantage, or because they perceive we are not to be bullied into submission, and therefore it is best to live on friendly terms with us, he held it wise policy in us to enlarge our means both of defence and offence, until our dispute with France is brought to a close. He, therefore, thought it of more importance to adopt this measure now than heretofore; because, if it is not carried, it may be supposed that we have forborne to adopt it, because we are disposed to relax the instant we have information that a negotiation is likely to be opened, and that they may at any time unnerve our arm by a proposition to negotiate. Therefore, if he had before been against this measure, he should now be in favor of it, because, if it had no other good effect, it would convince the government with which we are about to treat, that the same vigorous measures which have produced this negotiation will still be continued, and that though we are treating for peace, we are preparing for war, and that we are determined to do ourselves justice, if they refuse to do us justice. For these reasons he hoped the bill would pass. Mr. LIVINGSTON said, that considering how great a favorite this measure had been of its partial parents, it was the most unlucky child that ever showed its face in the House. It had scarcely seen the light at the last session, when it was lost in the short passage from its nursery in the committee to the House, because those who were most interested in its preservation, by accident, did not happen to vote for it. Another accident of the same nature prevented its passage when it was again attempted in the same session. At the interval of a year, the same ill fortune seemed to pursue this unlucky bantling. It had scarcely taken its first step into existence when the same forgetfulness seemed to seize all those who had the care of it. Again, it was lost in the committee; again it accidentally expired; and all the efforts to revive it, he believed, would be in vain. Mr. L. then went into a history of the bill to show that it was lost, not by accident, but because a majority were opposed to it. Mr. L. said, he understood that France proposes to receive a Minister from this country on the very terms upon which only the PRESIDENT OF THE UNITED STATES has heretofore said he would ever send one. It was said to be improper to recede from the ground we have taken on this account, because the French may not be sincere. He had heard no such idea suggested, and gentlemen certainly do wrong in imputing motives to others without foundation. But when gentlemen come to the merits of the bill, they touch them very lightly. They tell you it is part of our general system of defence. Is this the case? How is it to operate? It is to operate as a measure of aggression, not of preservation, or self-defence; and though he was perfectly willing to preserve our present ground, he did not wish to progress in any measures of hostility, especially when so little advantage can be derived from it as is proposed by this bill. Mr. DANA said that the PRESIDENT OF THE UNITED STATES, in his Message to both Houses of the 21st of June last, declared, "that he would never send another Minister to France until he had assurances that he would be received as the Minister of a great, free, and powerful nation." The character of the PRESIDENT OF THE UNITED STATES for integrity and political fortitude, is well known and established, and that character is pledged for an adherence to the declaration above recited. Nor had he any idea of his receding from it. With a knowledge of this fact, we are to inquire what is the purport of the information which has been given to this House of a Minister having been appointed to negotiate with the French Republic. For his own part he did not consider the French Government sincere; and he was authorized to think so by the declaration of this House in answer to the PRESIDENT'S Speech. Nor did he think the PRESIDENT believed them to be sincere, and he was authorized in thinking so, from his communication to both Houses at the opening of the session. How, then, is the nomination of a Minister to be understood? It was to be understood in the same light in which we used to appoint Commissioners during our Revolutionary war, who were sent to Europe to treat with Great Britain long before we expected she would be willing to treat for peace; but they were possessed of eventual authority. So, in the present case, the authority proposed to be given to our Minister at the Hague, is only to be an eventual authority, that when he receives sufficient evidence of the sincerity of the French Government, he may proceed to treat with them. Nor did he believe that the Senate possessed any document informing them that the PRESIDENT has already received these assurances. [Mr. D. here read extracts from the PRESIDENT'S Address to both Houses, from the address of this House in answer to it, and from his reply; in which the PRESIDENT states he can have no confidence in the sincerity of the French Government, while the decree which condemns our vessels as prizes, on account of having articles of British growth or manufacture on board, is in force.] We know, said Mr. D., that this decree is, however, yet in force; and yet gentlemen pretend to say that the nomination which has taken place is a proof that the PRESIDENT has now some reliance on the sincerity of the French Government; whereas it is nothing more than a conditional appointment, such as he had already stated. No gentleman will hazard his political sagacity by saying, a negotiation is likely to take place whilst that decree is in existence; nor can any gentleman be found who will apologize for it, if it is so atrocious that its repeal must be an indispensable preliminary to any negotiation which may take place. Believing this nomination, therefore, to be nothing more than the naming of a person to treat with the French Government when it shall condescend to do us justice, the arguments of gentlemen built upon it fall to the ground. And if they attend to the declaration of this House, in the address already alluded to, they will find that we ought to advance in our defensive measures instead of receding, or even remaining stationary. Mr. NICHOLAS supposed during the first half of the speech, of the gentleman who had just sat down, that he meant to vote against this bill, for he could not have supposed that he had quoted the PRESIDENT'S Message to Congress, in June last, for the purpose of making a declaration such as he has made with respect to it. He supposes that the PRESIDENT has received no assurances from the French Republic that our Minister will be received, though he has heretofore said he never would send a Minister until he had assurances he would be properly received; but that he has appointed a Minister to wait, as it were, at the door of France, for a declaration that he will be properly received. And he supposes that the declaration of the PRESIDENT will in this way be satisfied. Mr. N. believed, if the PRESIDENT has appointed a Minister, he will be received, because he did not believe he would have appointed him until he had good assurances that this would be the case; or, if he has, that he has certainly forgotten his declaration. The gentleman last up had made use of a very extraordinary argument. He says the French nation is governed by different principles from any other. When we entreat them to be at peace, he says, they insult us; but when we give them cause to wage eternal war against us, they become humble and submissive. Mr. N. believed that this was not the first time that such measures have had this tendency; but it is the first time it has been acknowledged that the measure alluded to (the publication of the despatches containing the unauthorized negotiations of X, Y, and Z, he supposed was meant) was calculated to produce these direful effects. He did fear they were intended to have these mischievous consequences; but he hoped and believed that their being so notorious and palpable have been the means of defeating the intention, and of saving the nation from war, as it showed that the Government of this country had no desire to be at peace. The French saw that a war between the United States and them would have been a war of passion, in which they could have had no possible interest, and which would, above all other things, have proved agreeable to their enemy. They saw that there was a party in this country who wished for this state of things, and he believed the extremity to which things had been carried has defeated the object in view. I do believe, said Mr. N., that France is now disposed to make peace; that she is calling upon us to enter into negotiation, in order that the party in this country who are desirous of war may have no pretext for carrying their wishes into effect. Mr. N. was astonished, that after a Minister of respectable character, a Minister chosen by the PRESIDENT, and who declared he accepted of the employment from a desire to support his administration, being well acquainted with the disposition of France, from his having resided there a considerable time--has asserted that, previous to their knowledge of the publication of the negotiations of X, Y, and Z, in this country, the French Government were desirous of negotiating a peace; that after having rejected two of our Ministers, and retained a third, the resentments appeared to be satisfied; and that, though, after they had received information of the publication of these despatches, their displeasure was for a while excited, yet before Mr. Gerry left France, the same disposition for peace had returned; though, from the disposition which appeared in this country, they were doubtful how their overtures would be received. And after we have now proofs that they have made overtures, in conformity to the sentiments exhibited in Mr. Gerry's despatches, it was astonishing, he said, that gentlemen should ascribe this offer to negotiate to the effect which the small force we raised has had upon them--a force which could not possibly have availed any thing against such a force as it might be expected would be sent against us, if it was the purpose of France to invade this country. Mr. RUTLEDGE observed, that the effect of the measures which were taken at the two last sessions of Congress have been so different from what was predicted by the gentleman from Virginia that he was no longer inclined to give credit to his predictions. He has constantly been prophesying, but time and experience have shown his prophesies to be wholly unfounded. It was doubtless in the recollection of the House, that that gentleman thought it would be weak to rely upon a navy; he thought and said that many of the measures formerly taken would plunge the country in war, by causing a declaration of war on the part of France. The gentleman apologized for the length of his speeches, because he thought the measures of the last importance; and that if they were adopted, the scabbard would be thrown away, and it would not be in our power to resume it. But, instead of war, it is now found these measures have obtained for us peace--at least gentlemen say so. The gentleman from Virginia now predicts we shall have peace; but as all the former predictions of that gentleman have fallen to the ground, he trusted a majority of this House will not be inclined to give credit to his present prediction. Much had been said about the diplomatic skill of France; and he thought her present conduct more deserving of this epithet than any of her former measures with respect to this country. Let gentlemen review the conduct of that country. She first attempted to bully us; but finding that we were not to be frightened, her next object was to obtain delay, in order to afford time for the spirit which had been roused by her injuries, to spend its force. When our Minister, Mr. Pinckney, first arrived in France, he was assured he would be received; but the French had an agent in this country feeling the pulse of the people, and finding that there existed a great deal of French mania, and a party upon whom they could rely, the French Government refused to receive our Minister. This country, still desirous of preserving peace, sent three Commissioners. What was then the conduct of the French Government? Our Ministers remained for months at Paris an unique spectacle, waiting in vain to be received. France has endeavored to palsy our Government--to produce delay--to give time for that noble spirit which has done so much honor to our country to spend itself. When she finds that our efforts to negotiate having failed, we buckled on our armor, and were determined to resist her injustice, the French Secretary of Legation at the Hague is directed to have some conversation with our Minister there; and assure him, notwithstanding this country had done acts enough to justify the most offensive measures, that if he will send another Minister to France, he would be received as an agent of a great, independent, and powerful nation. Gentlemen catch at this; but what is it but an attempt to arrest the arm of the Government of this country, just when it was about to strike a blow? And yet gentlemen are the dupes of this diplomatic skill. Mr. LIVINGSTON was not surprised that gentlemen who had always been the advocates of war, at this critical moment, when all the horrors of peace stare them in the face, should seize every opportunity of postponing that dreaded event by questioning the sincerity of the offer to negotiate. [Mr. RUTLEDGE asked whether this had been done? The SPEAKER answered in the negative.] From those gentlemen this was naturally to have been expected, and he therefore excused their vexation and dismay. But Mr. L. said he was not a little astonished that others, who at least professed an attachment to peace, should betray such evident anxiety and uneasiness at its approach. The gentleman from South Carolina (Mr. RUTLEDGE) has said that he wishes for peace; that no class of men are more exposed than his constituents, and that he himself would be a great sufferer by war. Such wishes and such motives he was however inclined to believe would have prompted language very different from that which had just been heard. A gentleman really desirous of peace would not, he should have supposed, travel out of the argument to pronounce philippics against those with whom we were treating, or to question the sincerity of overtures which were made in the mode we ourselves had prescribed. He would not ask gentlemen who pronounce so decisively on the subject; who tell us that no reliance is to be placed in French professions; that they promise only to betray; that, unlike all other nations, they treat us with disdain when we ask for peace, but like spaniels, crouch and fawn upon us when we use them ill, whether they had calculated the consequences of their doctrine? That would be demanding more from them than their conduct had given him a right to expect; but he would ask whether they had attended to dates, when they arrogated to their measures the credit of producing the present disposition for peace in the Government of France? Let it be remembered, said Mr. L., that the most earnest and pressing solicitations for an accommodation were expressed to Mr. Gerry; that he was repeatedly urged to negotiate a treaty, which it was more than intimated he might have on his own terms; and that, after his repeated refusals to treat, a Minister was designated to carry these pacific intentions to America--and all this before any account of those measures on which gentlemen so much pride themselves had arrived in France. Let it not be forgotten, too, that when the account of these measures did arrive, so far from having a beneficial effect, they were very near producing the one for which gentlemen now tell us they were intended, and for which they were indeed admirably calculated--that of provoking on the part of France, a declaration which could not be obtained here. Mr. Gerry very expressively gives us these important facts. He states the evident desire to accommodate before the arrival of the despatches, and the turn which their contents gave to the negotiation. The discussion was turned to unimportant points; the design of sending a Minister was relinquished; and every thing showed a design to protract the business, until it could be ascertained whether the United States were desirous of peace, or would receive a Minister if he should be sent. In this state of things, Mr. Gerry received orders to return. All further intercourse with France then ceased, until the PRESIDENT, by his Message to this House, declared the terms on which alone he would send a Minister to France. No sooner were these terms known, than the assurance is sent in the very words prescribed by the PRESIDENT, accompanied by expressions of an earnest desire to treat. In all this history, subsequent to the departure of Messrs. Pinckney and Marshall, he thought an evident desire had been shown for an accommodation, the sincerity of which he believed it was our duty to test--not by reproachful speeches and hostile measures, but by meeting their overtures for negotiation in good faith; and while we showed our desire for peace, not to trust too much to our wishes, but retain every measure of defence. The gentleman from South Carolina (Mr. RUTLEDGE) had mentioned delay. France, he said, always conquered by producing delays. This he thought not a very applicable expression to the rapidity with which gentlemen traced their conquests. But on this occasion it was particularly unfortunate. It appears that the overtures which have now been acted upon were communicated by the Minister for Foreign Relations at Paris, to Mr. Pichon at the Hague, and by him to Mr. Murray, on the 28th of September; and we hear nothing of them until the close of February. He did not know when the communication was received here; but there was at least a probability, from the date, that it was before the opening of the session; before the adoption of all the expensive measures we have undertaken; before the loan was opened at eight per cent.; before the intemperate commentary was written on Mr. Gerry's despatches, with which we have been favored by the Secretary of State. Let gentlemen compare the language of that singular State paper with these proposals made to Mr. Murray; let them examine the respective dates, and then let them talk to us of delay. Mr. SHEPARD could not think, with the gentleman from New York, that France is serious in her proposals to negotiate; he believed she meant to deceive us; and sooner than be deceived by them, he would fight the ungodly nation. After some other observations, he sat down, with hoping the question would be taken. The question was put on agreeing to the report of the Committee of the Whole, and carried--52 to 48, as follows: YEAS.--George Baer, jr., Abraham Baldwin, David Bard, Richard Brent, Robert Brown, Samuel J. Cabell, John Chapman, Thomas Claiborne, William Charles Cole Claiborne, Matthew Clay, John Clopton, Thomas T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas Elmendorph, William Findlay, John Fowler, Nathaniel Freeman, jr., Albert Gallatin, James Gillespie, Andrew Gregg, William Barry Grove, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Josiah Parker, Thompson J. Skinner, Samuel Smith, William Smith, Richard Dobbs Spaight, Peleg Sprague, Richard Sprigg, Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. NAYS.--John Allen, Bailey Bartlett, James A. Bayard, Jonathan Brace, David Brooks, Stephen Bullock, Christopher G. Champlin, James Cochran, Wm. Craik, Samuel W. Dana, John Dennis, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, Jas. H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, William Matthews, Lewis R. Morris, Harrison G. Otis, Isaac Parker, Thomas Pinckney, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Nathaniel Smith, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, Robert Waln, and John Williams. The second section was then amended by adding to it the usual enacting clause; but after some observations against passing it by Mr. SEWALL, since the first section had been stricken out on the motion for its going to a third reading, it was negatived. And so the bill was rejected. _Expulsion of Matthew Lyon._ Mr. BAYARD proposed the following resolution to the House: "_Resolved_, That Matthew Lyon, a member of this House, having been convicted of being a notorious and seditious person, and of a depraved mind, and wicked and diabolical disposition; and of wickedly, deceitfully, and maliciously, contriving to defame the Government of the United States; and having, with intent and design to defame the Government of the United States, and John Adams, the PRESIDENT OF THE UNITED STATES, and to bring the said Government and PRESIDENT into contempt and disrepute, and with intent and design to excite against the said Government and PRESIDENT the hatred of the good people of the United States, and to stir up sedition in the United States--wickedly, knowingly, and maliciously, written and published certain scandalous and seditious writings, or libels, be therefor expelled this House." Mr. B. said he had only to remark that this resolution is copied from the record of the trial, which he had in his possession. Mr. NICHOLAS said, if this had been a candid statement of the business, he should have been willing to have come to an immediate vote upon it; but words are introduced into this resolution (which are words of course in every indictment) which do not particularly belong to this offence, and the truth of which is never inquired into upon a trial. As he wished the nature of the offence to be clearly stated, he hoped the motion would lie for the present. Mr. BAYARD observed he had already said the terms used are copied from the record itself, and he did not think the gentleman from Virginia had been wiser than the law. He had himself no doubt that all the charges on the record are pertinent to the subject; if not, it would be extremely improper to introduce them. They are charges upon which a jury of the country have decided. Mr. NICHOLAS appealed to the gentleman from Delaware, and to all other gentlemen of the law who heard him, whether the words here used are not the mere form of the indictment, and unconnected with the act here charged. He moved to adjourn, which motion was carried without a division. FRIDAY, February 22. _Alien and Sedition Laws._ Mr. BARD presented several petitions and remonstrances from 1,487 inhabitants of the county of Franklin, in Pennsylvania, praying for the repeal of the alien and sedition laws; which having been read, Mr. BARD moved to have this petition referred as usual. Mr. HARPER inquired whether it would be in order to strike out a part of this petition. On being answered in the negative by the SPEAKER, Mr. H. said, he was always unwilling to object to the reference of petitions; but, on this occasion he could not help protesting against an atrocious libel contained in these petitions against the courts and juries of this country. Some time ago a great deal had been said on the subject of courts and juries in this House, and now we find the sentiments, as many others have been, reverberated in the form of petitions. It is here said, "that the sedition law had, in its execution, been used as a means of private vengeance, personal enmity, and party resentment." A charge so unjustifiable, and so untrue, upon the courts and juries of this country, he could not suffer to be referred without his protest. Mr. GALLATIN observed, that the reference of these petitions is objected to, on account of what the gentleman from South Carolina calls a libel, which makes a part of these petitions. This, said Mr. G., is going upon the ground, which the greatest enemies of these laws have barely suggested might be taken, but which they thought scarcely possible, viz: that the right of petitioning might next be restricted, since the liberty of writing and speaking on the measures of Government was by law restricted: and now, taking it for granted, that the allegation contained in these petitions is untrue, the gentleman from South Carolina wishes to refuse these petitions a reference, without examining whether it is true or not. The petitioners say that the sedition law has been carried into effect under the operation of party spirit and personal revenge. The gentleman says that this is not true; but he does not want to have the allegation examined, in order to discover whether it be true or not, but to dismiss the subject at once; to tell the people, "You shall not be permitted to lay your petitions before us, if you dare to say that laws are carried into operation to gratify party spirit or private revenge, (for nothing is said of courts and juries,) if they contain such allegations, we will reject your petitions." Mr. G. hoped, on examination of the fact, the House would be convinced that though the charge is not a libel, that it is at least a gross mistake; that no such personal enmity, party spirit, or private revenge, has taken place, either in the commencement of any prosecution under this law, or in any decision which has taken place. But thus to object to the reference of petitions, would be to say that we have the power of defining the nature of petitions; that they may apply to this and that object, but that there are certain points which the people may not touch. He wished to know whether the people have not a right to say, if they choose, that the administration of justice is corrupt? and whether, if they do say so, the fact ought not to be inquired into? It certainly ought, and he was surprised to hear such an objection made. It must have arisen, because these petitions are grating to the feelings of gentlemen who are favorable to these laws. He hoped, on recollection, that the reference of petitions does not imply an approbation of the sentiments contained in them, that the gentleman from South Carolina would permit these petitions to be referred. Mr. HARPER was not surprised that the gentleman from Pennsylvania should defend these petitions, for reasons which every man must know. What he has said upon the subject is no more than a repetition of some things which we have before heard. He agreed that, when grievances are complained of, they ought to be examined; and if the people were to complain of a maladministration of justice, the fact ought to be inquired into; but when the repeal of a law is prayed for, it certainly cannot be proper for petitioners to go into charges against the administration of courts and juries, by saying that prosecutions are carried on under party malice and party revenge. To do this is to strike at the vitals of our constitution. The gentleman from Pennsylvania likes this, perhaps, from party motives, but he ought to remember that it is an instrument which will cut both ways; and the use of which, if he has any respect for the laws and rights of his country, he may live to regret having countenanced. Mr. H. said, if in order, he would move to refer this part of the memorial to a select committee, with a view of inquiring into the subject-matter, and report their opinion thereon to the House. The SPEAKER declared such a motion out of order; and, after some observations from Mr. NICHOLAS, in which he said the gentleman from South Carolina had answered himself, by allowing the propriety of a reference at all; and observed, if because these petitions complained of the administration of one part of our Government (which, however, he did not allow they do) they were to be rejected, it might be expected that, hereafter, no petition would be received that complained of the maladministration of any department of the Government. The reference was carried, there being 55 votes for it. Mr. GALLATIN presented petitions from six hundred and seventy-eight inhabitants of Chester County, praying for the repeal of the alien and sedition laws, in the same words with those presented yesterday. _On expelling Matthew Lyon._ Mr. BAYARD called up for consideration the following resolution, which he had laid upon the table a day or two ago: The resolution having been read, Mr. B. presented to the House a copy of the record of Mr. Lyon's trial, which was read by the Clerk, after which, Mr. B. observed, it would not be necessary to trouble the House with many observations in support of this resolution. The facts upon which the resolution is founded, are proved to be incontrovertibly true, by the record which had just been read. The only question, therefore, before the House was, as to the consequence of the fact, or whether the crime of which the member in question had been convicted, is a sufficient cause for expulsion. Mr. B. referred the House to that clause of the constitution which gives the House the power of expulsion. The power, said he, is unlimited. The House has the power to expel a member for any crime, or for any cause, which, in their discretion, they conceive has rendered him unfit to remain a member of the body. Perhaps some gentlemen may think that it is improper for the House to take notice of acts done by its members out of the House, but he believed the fallacy of such a doctrine would be easily seen. It was certainly possible, and might, therefore, be imagined, that a member of this House, might be guilty of murder, treason, perjury, or other infamous crime, and would it be asserted that a man, defiled by crimes of this kind, ought to be suffered to represent a portion of the people of the United States in the National Legislature? He trusted that no gentleman, who valued reputation, would contend for such a point. The question, then is, said Mr. B., whether the act in question is an act of that description, the commission of which ought to induce the House to expel the convicted member? In his opinion, the crime was of the first political magnitude. A crime not only affecting the members of this House, but the whole community, as its consequences go to the subversion of the Government. This Government, said Mr. B., depends for its existence upon the good will of the people. That good will is maintained by their good opinion. But, how is that good opinion to be preserved, if wicked and unprincipled men, men of inordinate and desperate ambition, are allowed to state facts to the people which are not true, which they know at the time to be false, and which are stated with the criminal intention of bringing the Government into disrepute among the people. This was falsely and deceitfully stealing the public opinion; it was a felony of the worst and most dangerous nature. The member from Vermont has been convicted of doing this, with a view of exciting the hatred of the people against the PRESIDENT and Senate, and of stirring up sedition in the country. This, in his opinion, was a crime of the greatest magnitude, since it is all-important that the channel by which information is conveyed to the people should be preserved as pure as possible; for, if men are allowed to state things as facts, which they know to be false, what will be the consequence? However upright the Government, or however correct the First Magistrate may be, the hatred of the people may be excited against them by means of false information; and when a foreign foe, or domestic traitors, join the standard of rebellion, the best constitution and government may be subverted. Therefore, that falsehood which deprives men of the means of forming a true judgment of public affairs, in this country, where the Government is elective, is a crime of the first magnitude. The member from Vermont has been convicted, under aggravated circumstances. He was on this floor when the law, against which he has offended, was passed. He, therefore, was well acquainted with the law; yet, with this knowledge, he has falsely, scandalously and maliciously, defamed the PRESIDENT OF THE UNITED STATES, with a view of exciting hatred, and stirring up sedition. These facts are recorded and incontrovertible; and he conceived it would be out of order to call them in question. Mr. B. concluded with appealing to the candor and honor which he expected to find in the House, whether a member, the malice of whose heart, and the falsehood of whose pen, stood recorded; who had, from the worst and basest motives, violated a law which he had himself assisted to make, was fit to hold a seat in that House. Will any one say that a man who does not keep the laws ought to be allowed to make them? Certainly, nothing was more repugnant to principle and propriety; and, as he conceived the member from Vermont was notoriously and exemplarily guilty in this respect, an obligation rested on the House to expel him. Mr. B. said he brought forward this resolution from a sense only of public duty, from a strong feeling for national character. He knew but little, and should be happy if it were less, of the member who was the object of it. He could not be suspected of having been induced to the step he had taken by the miserable gratification of offering violence to the feelings of the member. He believed that nothing he had said, nor any thing which could be said, would awaken a single feeling. His sensations were of another sort, and excited in another manner. Mr. B. conceived he had done his duty, and if the House refused to purify itself by the expulsion of the member, it was a satisfaction to him to reflect that it would appear to the world that he had no share in the disgrace. Mr. NICHOLAS had hoped that the gentleman from Delaware would have shown to the House something in this transaction which made the character of the member alluded to so infamous as to have rendered him unfit to hold a seat in this House. He should have thought that, after a member of this House had suffered so severely as the member from Vermont has suffered by fine and imprisonment, it would have been thought necessary to go into a consideration of the nature of the offence of which he is said to have been guilty, and to have shown that the guilt attaching to him was such as to defile the characters of the rest of the members to sit with him, before a vote of expulsion was taken. Indeed, Mr. N. had supposed that there had been but one opinion on this subject, and that no attempt would have been made to have inflicted a second punishment. The gentleman from Delaware, Mr. N. said, had confined himself in his declaration about this offence, to its being an offence against one of the laws of the United States, without showing the House what the offence was, or wishing them to form a judgment upon it. Mr. N. was surprised at this second prosecution, because, if gentlemen will speak candidly according to the opinions which they formerly delivered in justification of the law, they will acknowledge that the whole of the charges brought against the member from Vermont ought not to have been inquired into under the sedition law; since two of the counts contained in the indictment are mere matters of opinion, not containing the least suggestion of fact; and the third rests so much on matter of opinion, that it is impossible, according to a sound construction of the law, for any guilt to be incurred by the act. Mr. N. wished the House to attend to the nature of the charges exhibited against the member from Vermont, and to say whether they were not of such a nature as to render it difficult to say whether they are well founded, and, if they are well founded, then they are innocent. In the record from which he had copied the charges, there are three counts; two of them are founded on extracts taken from a letter, called "Barlow's Letter;" the third is for sentiments contained in a letter of the member's own writing. The two first turn on mere matters of opinion. Mr. N. read the counts as follows: "The misunderstanding between the two Governments has become extremely alarming, confidence is completely destroyed, mistrusts, jealousy, and a disposition to a wrong attribution of motives, are so apparent as to require the utmost caution in every word and action that are to come before your Executive--I mean if your object is to avoid hostilities. Had this truth been understood with you before the recall of Monroe, before the coming and second coming of Pinckney; had it guided the pens that wrote the bullying Speech of your President, and stupid answer of your Senate, at the opening of Congress in November last, I should probably have had no occasion to address you this letter. But we found him borrowing the language of Great Britain, and telling the world that, although he should succeed in treating with the French, there was no dependence to be placed on any of their engagements; that their religion and morality were at an end; that they had turned pirates and plunderers; and it would be necessary to be perpetually armed against them, though they are at peace. We wondered that the answer of both Houses had not been an order to send him to a mad-house. Instead of this, the Senate had echoed the Speech with more servility than ever George III. experienced from either House of Parliament. "As to the Executive, when I shall see the efforts of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that Executive shall have my zealous and uniform support. But, when I see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice; when I shall behold men of real merit daily turned out of office for no other cause but independence of sentiment; when I shall see men of firmness, merit, years, abilities, and experience, discarded on their application for office, for fear they possess that independence; and men of meanness preferred for the ease with which they take up and advocate opinions, the consequence of which they know but little of; when I shall see the sacred name of religion employed as a State engine to make mankind hate and persecute one another, I shall not be their humble advocate." The two first counts contain the opinions of the writer on public and notorious acts. No act is charged upon the PRESIDENT and Senate which is not notorious. It is not an attempt to impose upon the world a belief of facts which do not exist. He called upon gentlemen of the law and others to say whether this law was ever intended to extend to matters of opinion. He was astonished that a record of this kind should ever come from a court of the United States. The law declares that the publications which it proposes to punish, shall be false and scandalous. Do gentlemen say opinions can be false which do not contain matter of fact? Another part of the law gives to the party accused the privilege of giving the truth of the fact charged in evidence; but it is impossible that this can be done, where the matter charged consists of mere opinion; and juries could not possibly say whether an opinion be true or false. They can only determine whether or not it is their own opinion. If a man is to be subject to a prosecution for his opinions, what will be the consequence? We are, said Mr. N., sent here to form an opinion, and, when we return home, we are expected to deliver that opinion to our constituents: but, if the propriety of our opinions are not to be judged of by ourselves, but by others, what will become of us? No man will be safe; for, though he may have formed his opinion as correctly as possible, if twelve men are to sit upon it, and, if it should not happen to be their opinion, or if they should not believe it to be his upon whom it is charged, he will be liable to a severe fine and imprisonment. Is it proper, Mr. N. asked, for legislators to be placed on this ground? Or, will gentlemen say it was their intention to place themselves in this situation? They certainly will not; for who would consent to sit here, or of what use would it be, under such conditions? The third count is somewhat of a different nature. Mr. N. said, in speaking on this subject, he was not giving his own opinion. If he were to give it, he should say he had no foundation for the fact here stated. There is no mode, however, of ascertaining whether or not it was the opinion of the member from Vermont, and if it were his opinion, there being no mode of determining whether the opinion is correct or otherwise, it was impossible to act upon it. With respect to the first part of the third count, which speaks of "every consideration of the public welfare being swallowed up in a continual grasp of power, &c.," he supposed it would be agreed that it was an expression of the affection of the mind--an opinion upon the disposition discovered by actions. That part of it which relates to "men of real merit being turned out of office for no other cause but independence of sentiment, &c.," suggests a fact, but if this was his opinion, it is a matter so much connected with opinion, as to be scarcely distinguishable from it. And shall we be told, said Mr. N., that a member ought to be banished from his seat for uttering a sentiment of this kind, after having been told by the gentleman from Delaware, and others, that it was a complete disqualification for office for a man to hold a different political opinion from that of the Executive? He trusted gentlemen could not seriously think so. For, since if the fact were true, and the member from Vermont had adduced (as he believed he might have done) two or three instances of men being turned out of office merely on account of their political opinions, still the jury might have asked, "how do you know that the men displaced possessed superior talents to those who succeeded them?" This, though true, could not be proved, therefore the member from Vermont could not have availed himself of the advantage held out by the law. Gentlemen may say this is not necessary, as this law goes to many offences not capable of this proof; they may say that the British law on this subject goes to many others. But our law is not the same with the British law; there, though the libel be true, it is not less a libel, which is not the case under our law, which is an important distinction. It was clear, Mr. N. said, that such parts of the counts as went to insinuate fact, were so connected with opinion, that it was impossible to separate them. It could not be said that the jury were competent to decide upon the truth of the case. The decision of twelve honest men on a point of fact, is, perhaps, the best security that can be devised for the security of justice; but if a man is to be convicted because his opinions and those of a jury are at variance, there is an end to all security. Men's opinions are as various as their faces, and the truth or falsehood of those opinions are not fit subjects for the decision of a jury. Upon what ground does the member from Vermont stand? He is a representative of the people; and gentlemen could not shut their eyes against a notorious fact, viz: that the constituents of this member, with a full knowledge of this prosecution, have re-elected him; and if the people of Vermont choose to have a person possessing these opinions to represent them, who have a right to say they shall not? Indeed, if they are to be represented at all, they must be represented by the man whom they choose to elect. The gentleman from Delaware had said, that all the offences of Mr. LYON were greatly aggravated from his being a member of this House. Mr. N. was of a different opinion. He thought it incumbent on a Representative to disclose his opinions on public affairs to his constituents; and this disclosure will become more necessary, in proportion as such opinions may be offensive to the administrators of the Government; as, when all goes on smoothly and well, there will be no necessity for calling the attention of the people to public concerns. The gentleman has also said, that it would be out of order to contest the truth of any thing contained in this record. He thought differently, and that if it was proper to act upon the subject at all, it would be proper to assign a day to have a fair hearing of the business, to enable the House to judge of the facts. For gentlemen will not say, that courts and juries are so infallible, that there is no case in which the decision of a court ought to be revised. If the member from Vermont should think it necessary to demand this investigation, the House ought to submit to it. There was something in that record, Mr. N. said, which was very singular indeed; something which requires investigation; for unless the fact is different from what his information made it, a most extraordinary circumstance was connected with the third count. It will be seen, from the showing of the record, that the letter upon which the charge is founded, was written before the passage of the law on which the offence was tried. If he was not misinformed, no evidence was adduced in court to show that Mr. LYON did any act subsequent to the writing of his letter in the publication, and that though the thing appeared in print after the law took its effect, all that was done by the writer was done before the law was passed. He thought, therefore, before the House acted upon this subject, an inquiry ought to be had upon it. He did not know what were the wishes of the member from Vermont himself on this subject; he had not put the question to him, because he thought there was no offence contained in the record of which the House ought to take notice. He would say farther, that believing most religiously that the law against which the member from Vermont is said to have offended, is a violation of the constitution of this country, he could not without a breach of his oath, do any act to punish a breach of that law. Mr. LYON said, he did expect that if he was to have had a second trial, he should have been at liberty to have adduced the evidence upon which a jury had already decided. Gentlemen who have been able to obtain a copy of the record, which he, notwithstanding all his earnest desires to obtain it, had not been able to procure, might also have obtained a copy of the testimony on which this judgment was founded. Mr. L. thought he had received an unjust trial and a hard sentence. He said unjust, because he was frowned upon by the Judge in a very abrupt manner when he challenged two of the jury, which he had a right to do by a law of the State. The Judge answered me, said Mr. L., "You are unacquainted with the laws of the State." Mr. L. observed that there is a law in the State of Vermont for punishing persons who speak against the public authorities, which gives to the accused the privilege of challenging six of his jury. This privilege, said Mr. L., I was denied, exclusive of the political packing of the jury who tried me. This is the kind of treatment I have received: but I shall submit to the decision of the House without occupying their time on my account, further than my enemies are desirous of so occupying it. Mr. ALLEN said, nothing but the respect which he entertained for the character who presided at the trial of the member from Vermont would have drawn him from his seat on that occasion. But if he understood the member from Vermont, he said he was frowned upon by the court when he challenged two of his jury, and having been present at the trial, he was able to speak to that fact. He understood the member to make a challenge, and the Judge told him he did not know the laws of Vermont; but so far from any harshness being used towards the member, he must say he never saw a trial more fairly conducted. He thought it did honor to Judge Paterson, who presided. When the member persisted in his opinion, that a law of the State gave him a right to challenge his jury, the Judge replied, "if that was the law, it would require consideration;" and he inquired of the district judge if that was the law, who said it was not. As to the member's being precipitately tried, [Mr. LYON observed, he did say so,] if ever there was a case deliberately tried, or in which unexampled indulgence was shown to the accused, it was this. The member from Vermont had spoken of the jury being packed. He had seen this asserted in the papers, and the public ought to be informed that the charge is wholly untrue. The member from Vermont must know it is untrue. The jury was drawn from the boxes as is usual, in consequence of an order made by the court in May, which pointed out the particular towns from whence the jury were to be drawn. Mr. A. concluded by saying, he was sorry to find any man base enough to attack the gentleman who presided on this trial, as he believed his conduct to be unimpeachable. Mr. BAYARD said, considering the lateness of the hour, he should limit his reply to a few observations. He did not know what would bind the gentleman from Virginia; he denies the obligation of the law, and the credibility of the record. He could not expect, therefore, that he would be bound by the obligation of reason. The gentleman from Virginia, in his defence of the member from Vermont, has gone upon the ground that mere matter of opinion cannot be construed into a libel. He begged leave to differ from that opinion, for which there was not the least ground. Four things, Mr. B. said, are necessary to constitute a crime under the law in question: it is necessary that a publication should be seditious, false, scandalous, and malicious. When these four things appear, whether the publication consists in the assertion of matter of opinion, or matter of fact, it will be within the law, which makes no discrimination on the subject. Mr. B. did not think it altogether in order to question in this place the regularity of the proceedings of a court of justice. According to the organization of this Government, the powers of it are distributed, and the Judiciary in its department is as sovereign as the Legislature; and it is as improper for the Legislature to question the proceedings of a court as it would be for a court in common cases, to question the obligation of a law. What has the fact been? The judgment of a court has decided, on the verdict of a jury given upon oath, that this case was within the law; and, after a judicial determination, is it for a member of this House to say that the case was not within the law? But Mr. B. could conceive no idea more groundless than that of the gentleman from Virginia, that mere matters of opinion are not grounds of charges under this law. This the gentleman had made his _alpha_ and _omega_. He wished to know how a distinction was to be made on this subject? If an opinion upon a fact be expressed, and that opinion is false, scandalous, and malicious, ought it not to be subject to prosecution? Does the gentleman say opinions cannot be false? Mr. B. said, he would put a case to the gentleman from Virginia, without any intention of personal reflection, but merely for the sake of the argument. Suppose any person were to say, that in _his opinion_, that gentleman was a _rogue_, or any other _opinion_ casting a gross imputation, would the offence be less, because he had, instead of saying expressly he was a rogue, merely given it as his opinion? But if the gentleman insisted opinions could not be false, how would he get rid of the conclusion? This, Mr. B. conceived, might be sufficient to show that opinions may be false. Or, suppose a man were to say that, in his opinion, another was a traitor, ought he not to be punished as severely as if he had asserted the thing as a fact? The intention and wisdom of this law was, Mr. B. said, to caution men to be guarded in the publication of their opinions; since, by the expression of false opinions the minds of the people may be alienated from their Government. Suppose, for instance, that the gentleman from Virginia, or the member from Vermont, were to harangue the people, and say, in their _opinion_, this law is unconstitutional, and, therefore, not binding; that it ought not to be obeyed, but opposed by force; that it was made by men grasping after power, in defiance of the best interests of their country, in order to answer their own private views. Although this all might be mere matter of opinion, would it not come within the meaning of the law in question? No man on earth, Mr. B. said, would be more opposed to any measure for restraining the expression of honest and well-intentioned opinions, than himself. All that this law does, is to restrain false, malicious, and scandalous opinions. And will the gentleman from Virginia say, that the good of the country, or its liberty, will be promoted by indulging in an expression of what is false, scandalous, and malicious? Could this be liberty? He thought not. Every man, under this law, has the liberty of publishing what he pleases, taking the responsibility upon himself for the truth of what he writes. If he writes only what is true, he is not liable to punishment; if what is false, and that maliciously, it is only reasonable he should be punished for his falsehood and malice. Suppose a common case, that a man were to say that, in his opinion, another was insolvent, a bankrupt, or a thief, would he not be answerable for this opinion? He certainly would. And ought a man to be permitted to slander the Government and not an individual? If the licentiousness of the press be allowed to go thus far, there will be nothing safe in character; it will always be in the power of a malicious person to rob the best men of their reputation with impunity. He presumed, therefore, that there was no ground for the distinction which the gentleman had attempted to draw. The gentleman from Virginia had called upon the advocates of this resolution to show, that the member from Vermont could be punished a second time. Mr. B. did not know that the expulsion of a member from his seat could be considered in the light of a punishment. It was merely lopping off from the Legislative body a rotten member who contaminates the whole system. This was done without regard to the member himself, but with a view solely to the health and purity of the body of which he is a member. The constitution, however, left no doubt on the subject. It is said that the member from Vermont has been re-elected, since his offences were known. He wished the gentleman from Virginia to say, how this fact was ascertained. At one moment he disputes the truth of the record, and says it cannot be considered as conclusive or creditable; yet, at another, he asserts a fact, upon the grounds of an extract of a letter, or a paragraph in a newspaper, of which this House could take no notice. The member was not re-elected to the present Congress, nor was any return made of his re-election to the next. Suppose he had a majority of votes at the late election, may it not hereafter appear that the election was carried by corruption or fraud, and that the member is not entitled to his seat? It is suggested as a fact that the letter of the member from Vermont was written before the law passed; but the crime is not in the writing of the letter, but in the publication of it. There would have been no crime in scandalously writing, if he had not published the letter. The crime consisted not in the wickedness of his own heart, but the intention to corrupt others; the design to scatter firebrands through the community, with a view of exciting insurrections. If, therefore, he could have proved before the court and jury that he was not accessory to the publication after the passing of the law, he would doubtless have been acquitted; and though he did not think highly of the talents of that member, he supposed, if this had been the case, he would have had wit enough to have availed himself of it. He would say a word with respect to the consequences of the crime upon a member. In England, a member of the House of Commons may be expelled for libellous matter. Such was the case with Mr. Wilkes; though in this case, the transaction was afterwards expunged from the journals, it was not done upon the principle that the original expulsion was not justifiable, but because he had been expelled for the same offence, after he had been re-elected to the same Parliament. Believing, as he did, that the member in question disgraced the body to which at present he belonged, he hoped the resolution would be allowed to wash away the blot which marked and disfigured this branch of the Government. Mr. GALLATIN confessed that, though there were some reasons which diminished his surprise at seeing this resolution on the table, he did not expect to have heard it defended on the ground which the gentleman from Delaware had taken in his last speech. He did not expect that when a judgment, awarded under the sedition law, was under consideration, a gentleman should rise and tell the House that this law applies to the publication of opinions as well as to that of facts; and it was less to be expected from the very gentleman who introduced an amendment into that law, providing that the truth of a charge may be given in evidence. His present declaration amounted to this: that those words were introduced in order to deceive the public, since they could be of no real use. The gentleman from Delaware had constantly confounded matter of fact expressed, not positively, but only as the belief of the writer, and opinions or deduction from facts. If a man, with a view of defaming the government, publishes that, in his opinion, according to his belief, a certain fact does exist, which is susceptible of proof, and is found to be false, the publication, by the law, is undoubtedly a libel. Thus, if a man says that, in his opinion, a man is a thief, a bankrupt, or insolvent, it is not less a libel, than if he said such a person was positively so, because these things are susceptible of proof. But, when we speak of opinion, as distinct from fact, we speak of opinions not susceptible of proof, because they depend upon reasoning, and different opinions may be deduced from the same facts; therefore, we say that such opinions are not matter for prosecution even under this law. But, the gentleman from Delaware says that all opinions are liable to be prosecuted, provided that they can be proved to be false, scandalous, and malicious. Proved false! And who are the judges? To be sure, twelve jurymen, who are sworn to give a verdict according to evidence. And how can the truth of things which cannot be proved by evidence, be determined by evidence? An opinion may be incorrect; and, if judged incorrect by the gentleman from Delaware, it is, according to his reasoning, to be deemed false, and liable to prosecution. The House had been told by the gentleman from Delaware, that it has nothing to do with this trial, any further than the record; that it ought to be taken as complete evidence of the facts which it contains, which ought not to be disputed. He also tells the House that courts of justice are as independent of the Legislature, as the Legislature of them; that this House has nothing to do with the crime; that it is the conviction only which they ought to take cognizance of. If, said Mr. G., the gentleman from Delaware had not brought forward the resolution now under discussion, we would have had nothing to do with the business. We did not bring forward the subject; we have nothing to do with it. Mr. G. added, I believe I go too far when I say we have nothing to do with it; for I believe it was the duty of the House to have sent the Sergeant-at-Arms for the member from Vermont, and demanded him from confinement, that he might have attended to his duty in this House. [The SPEAKER said this was not now the question.] Mr. G. knew this was not the question; he mentioned this to show that the House might have had something to do with the business. But we did not, said he, bring the subject before the House; and, if we have nothing to do with the decision of a court, that decision has nothing to do with us. If the member from Vermont is to be expelled, he ought to be expelled, not because he has been convicted, but because he has committed a crime which renders him unfit to retain his seat. What is that crime? It is stated in the record: and, stated as it is, he did not believe it was sufficient to ground a motion of this kind upon. Whatever is contained in these charges, which is capable of proof, ought to be taken into consideration, but not what is mere matter of opinion. It was generally allowed, he believed, that the paragraphs from what is called Barlow's letter, are of this last description. With respect to the other part of the charge, viz: the extract from a letter said to be written by the member from Vermont himself, to which he meant to confine his observations, he would beg leave to state it. [Mr. G. read it.] Mr. G. said, the whole of the paragraph was hypothetical; but, supposing that the member from Vermont had declared it as his opinion "that the efforts of the Executive power were not bent on the promotion of the comfort, the happiness, and the accommodation of the people," he wished to know whether this could be considered as a declaration of fact or opinion? There is, perhaps, no measure passed by Congress, which one or other may not think will be contrary to the happiness, comfort, and accommodation of the people of the United States. We had, said he, the other day, the question of a navy before us, the establishment of which many believe is necessary for the promotion of the comfort, happiness, and accommodation of the people; whereas, in my opinion, and in the opinion of many others, it will produce the very reverse. How is this question to be decided? And yet it is known that the President, in his writings and speaking, has recommended the establishment of a navy; and persons writing and speaking against this system, which they ought to do, if they believe the system inimical to the United States, might be charged with bringing the Congress and PRESIDENT into contempt. But, doubtless, this is a mere matter of opinion, and not susceptible of proof by evidence. In order to prove the truth of either assertion, you must bring forward a dissertation _pro_ and _con_. The next part of the paragraph, viz: "when I shall see every consideration of the public welfare swallowed up," &c. So far as relates to the first member of this sentence, he did not see how it could be proved. He was not of opinion that every consideration of the public welfare was swallowed up in a continual grasp for power; but he did believe that there was a constant disposition, not only in the Executive, but in many gentlemen on this floor, to increase the power of the Executive. [The SPEAKER said, neither this remark, nor the observations on the Navy, were in order.] Mr. G. said, that he always wished strictly to adhere to order, and in order to avoid committing any further mistake, he desired to be informed why it was out of order? Was the argument not in point; or was it the declaration of his own opinion, as he went along, that was out of order? He wished to know, as he meant to be guided by the rule adopted by the Chair. [The SPEAKER repeated that the gentleman from Pennsylvania had been out of order.] Mr. G. proceeded. With respect to that part of the paragraph which says, "when I shall see men of firmness, &c., discarded on their application for office," &c. This, said Mr. G., is, in some degree, matter of fact, and in some degree, matter of opinion. It is a matter of fact, so far as that men of firmness, experience, &c., have been turned out of office; and matter of opinion as to what is said of men of meanness being preferred in their place. I do believe, said Mr. G., that the first assertion is true; and what is here written is no more than an illustration of what has been declared upon this floor, that men of certain political opinions, however capable, experienced, firm, and virtuous they might be, were unfit to hold offices. This, Mr. G. said, was the only fact which could be brought under the law, and he thought it a fact capable of being proved to be true. Mr. G. adduced, as evidence of the fact, the cases of the late Commissioner of Revenue for the United States, and of the Commissioner of Loans for the State of New Hampshire, who, he said, it was evident, were turned out of office on account of their political opinions. And he read, in support of his assertion, the publication of the late Commissioner of Loans of New Hampshire. Another part of this paragraph speaks of "an unbounded thirst for ridiculous pomp." This, said Mr. G., is mere matter of opinion. Take the member from Vermont to the house of the PRESIDENT, and he may call its furniture and appendages, ridiculous pomp; take a member from a different part of the country, and he may declare every thing decent and plain; but take an overgrown nobleman from Great Britain into the house of the PRESIDENT, and he would set down every thing he saw as mean and selfish. But, I insist upon it, said Mr. G., that matter of opinion ought not to be subject to cognizance by this law. What, said he, is the nature of the crime now proposed to be punished by the expulsion of the member from Vermont? We are told that he has published and uttered false, seditious, and malicious writings; that though these writings may be only matter of opinion, yet if those opinions are false, they come under this law; and, also, that such writings have a tendency to stir up sedition and insurrection. Mr. G. would not repeat what had been said as to the unconstitutionality of the law under which the member from Vermont had been convicted; but this alone would be a sufficient reason for him to vote against the present motion. But, supposing the law constitutional, is the crime an infamous one? Certainly not. It is a political crime, and will always be determined according to the situation of the parties at the time. For, said he, we may say as much as we please about the purity of our courts and juries, and of our own purity; decisions upon political questions will always be influenced by party spirit. It is we, said Mr. G., that have introduced this spirit into the courts; and having given them political questions to decide, it need not be expected that courts will be free from party prejudice any more than others. Therefore, the falsehood or maliciousness of a publication will be determined by the political opinion of the jury. As to the manner in which the trial of the member from Vermont had been conducted, he knew nothing of it. He wished the gentleman from Connecticut, (Mr. ALLEN,) who, it seems, was present at the trial, would inform the House what proof was adduced to the court to show that the letter of Mr. LYON was published by him after the sedition law passed. The letter is dated the 20th of June, the law was passed on the 6th of July, and the letter was published in Vermont on the 30th of July. He should be glad to know whether any evidence was adduced to show that Mr. LYON did any thing relative to that publication, after writing the letter from Philadelphia on the 20th of June? If not, it will appear strange, indeed, that he should have been punished for an act done prior to the passage of the law under which he was convicted. As to the manner in which the jury had been summoned, he supposed it had been done in the usual way. Without saying, however, that the jury was packed, which he did not believe, yet, if the towns out of which the jury was selected, were the towns which had never given Mr. LYON but one or two votes at his election, it necessarily results that the jury were his political enemies; and being called upon to try him for a political offence, they would, of course, convict him. Mr. G. said, the lateness of the hour would prevent him from detaining the House longer. He would only observe that, considering that the member from Vermont had been tried for a political offence, by a jury opposed to him in opinion, and upon a law passed on political ground at the last session; that he had been punished by an imprisonment of four months, and by a fine of one thousand dollars; that he had been deprived of his seat in the Legislature for three months: he thought it would have been better not to have proposed this resolution. If this resolution should be adopted, it would follow, Mr. G. said, that every member who shall write any thing which is contrary to the opinion of a majority of this House, whether what he writes be founded in truth or not, will be liable to be expelled, in order to purify the House. Mr. G. thought persecution had followed the member from Vermont long enough. Every candid man must acknowledge that, if he has committed an offence, he has already been sufficiently punished by fine and imprisonment; to expel him from his seat, would carry with it an idea of persecution to the public, and to his constituents, that they would not be permitted to have a representative on this floor. He knew the circumstance of the member from Vermont's having been re-elected could not be introduced as an argument in his favor, but it might serve to show that what he had suffered for was no offence in the eyes of his constituents. The question was put; when there appeared 49 yeas and 45 nays, as follows: YEAS.--John Allen, Bailey Bartlett, James A. Bayard, Jonathan Brace, David Brooks, Christopher G. Champlin, John Chapman, James Cochran, William Craik, Samuel W. Dana, John Dennis, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William B. Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, James Machir, William Matthews, Lewis R. Morris, Harrison G. Otis, Isaac Parker, Josiah Parker, Thomas Pinckney, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Robert Waln, and John Williams. NAYS.--George Baer, jr., Abraham Baldwin, David Bard, Robert Brown, Samuel J. Cabell, Thomas Claiborne, William Charles Cole Claiborne, Matthew Clay, John Clopton, Thomas T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas Elmendorph, William Findlay, John Fowler, Nathaniel Freeman, jr., Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Thompson J. Skinner, Samuel Smith, William Smith, Richard Sprigg, Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. The SPEAKER, declaring the state of the vote, said, the constitution requiring two-thirds of the members present to expel a member, the resolution is not carried. SATURDAY, February 23. Mr. J. PARKER, from the Navy Committee, reported a bill authorizing the augmentation of the Marine Corps; which was committed. MONDAY, February 25. Mr. GREGG presented two petitions praying for a repeal of the alien and sedition laws; the one from Cumberland County, signed by 270 persons; the other from Mifflin County, in Pennsylvania, signed by 314 persons. Mr. GALLATIN presented another petition of the same kind from Chester County, signed by 692 persons. Mr. LIVINGSTON, one of a similar nature, signed by 2,500 citizens of New York. Mr. HEISTER, one of the same kind, from 1,400 inhabitants of Berks County. Mr. BAYARD, one from the inhabitants of Newcastle County, State of Delaware, signed by between 700 and 800 persons. Mr. BAYARD and Mr. BROWN each of them presented petitions to the same effect, signed by a small number of persons. The whole were referred as usual. On motion of Mr. LIVINGSTON, the petition presented some days ago from a number of alien Irishmen against the alien bill, was also referred--44 to 35. _Alien and Sedition Laws._ On motion of Mr. GOODRICH, the House went into a Committee of the Whole on the report of a select committee, on the petitions praying for a repeal of the alien and sedition laws; which was read by the Chairman, as follows: The committee to whom was referred the memorials of sundry inhabitants of the counties of Suffolk and Queen, in the State of New York; of Essex County, in New Jersey; of the counties of Philadelphia, York, Northampton, Mifflin, Dauphin, Washington, and Cumberland, in Pennsylvania; and of the county of Amelia, in Virginia; complaining of the act, entitled "An act concerning aliens," and other late acts of Congress, submit the following report: [The report was a condensation of the arguments used in support of the two bills by the members who supported them, and was accompanied by three resolutions, offered for the adoption of the House.] Impressed with these sentiments, the committee beg leave to report the following resolutions: _Resolved_, That it is inexpedient to repeal the act passed the last session, entitled "An act concerning aliens" _Resolved_, That it is inexpedient to repeal the act passed the last session, entitled "An act in addition to the act, entitled 'An act for the punishment of certain crimes against the United States.'" _Resolved_, That it is inexpedient to repeal any of the laws respecting the Navy, Military Establishment, or revenue of the United States. The question being upon agreeing to the first resolution declaring it to be inexpedient to repeal the alien law, Mr. GALLATIN rose and spoke as follows: Mr. Chairman: This subject was so fully discussed during the last session, that I would not have addressed the committee on this occasion, did I not entertain some hope that the change of circumstances which has taken place since the laws were enacted, and above all, the sense which so many of our fellow-citizens have expressed on their propriety and constitutionality, may induce the House to reconsider their decision of last year. Petitions, signed by near 18,000 freemen of this State alone, collected in a few counties and within a few weeks, have been laid on your table, earnestly requesting Congress to repeal laws, at best of a doubtful nature, and passed under an impression of danger which does not now seem to exist, of general alarm, which has nearly subsided. Sixteen hundred of my immediate constituents have joined in these petitions, and their opinion on this subject being the same which I have uniformly entertained, I feel it forcibly to be my duty to examine the reasoning used by the select committee who have reported against the repeal of the obnoxious laws. The act concerning aliens comes first under consideration. Two laws were passed during the last session of Congress on that subject, the one concerning aliens generally, and the other respecting alien enemies. No petition has been presented against the last, and it would remain in force even if the first should, agreeably to the request of the petitioners, be repealed. The petitions apply solely to those provisions of the first act which are not included in the last. The provision, therefore, complained of, and which is the subject-matter of the reference to the committee, is that which authorizes the President to remove out of the territory of the United States, "all such aliens, (being natives, citizens, denizens, or subjects of a nation which is _not_ at war with the United States, and which has _not_ perpetrated, attempted, or threatened any invasion or predatory incursion against the territory of the United States,) as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to _suspect_ are concerned in any treasonable or secret machinations against the Government thereof." This authorization is considered by the petitioners as unconstitutional--1st, because such power being neither among the specific powers granted by the constitution of the General Government, nor necessary to carry into effect any of those specific powers, is, both by incontestable deduction, and by the 12th amendment, reserved to the individual States; 2d, because, even supposing such power to be by implication comprehended among those granted to the General Government, its exercise is, for the present, expressly prohibited to that Government by the section which provides that the migration or importation of such persons as any of the States shall think proper to admit shall not be prohibited by Congress prior to the year 1808; and 3dly, because aliens are supposed to come under the general description of persons to whom, by the constitution, the right of a trial of all crimes by jury is secured. In answer to the first objection, it is not contended that the power of removing such aliens is specifically granted by the constitution. But it is insisted, first, that every nation has a power at will to admit, or to remove aliens; second, that this power is necessary and proper in order to carry into effect the specific powers vested in Congress to declare war and to protect each State from invasion. To admit the first position in its full extent does not destroy the force of the objection; for that objection rests not on a supposition that the power of removing aliens does not exist in the nation; but on the principle that it is not one of those granted by the nation to the General Government; that it is one of those intrusted by the nation to the Governments of the individual States respectively. The second position is predicated on a construction of the clause of the constitution and an application of that construction to the act, which to me appear inadmissible. The expressions used in that clause are "necessary and proper." The idea conveyed by the word "proper" is implied in that of the word "necessary," for whatever is necessary must be proper. The addition of the word "proper" was therefore useless, unless designed more precisely to ascertain the meaning of the word "necessary," the better to prevent a construction "that by necessity nothing more was meant than propriety," and to establish, beyond contradiction, that whatever might by Congress be thought proper, was not on that account to be judged necessary. Hence the meaning of the word "necessary" is confined in that clause to its strict sense, to wit: the power of passing laws without which some of the powers delegated to Congress could not be carried into effect. In the present case it cannot be said that a power generally to remove aliens, not belonging to a nation from which a war or invasion is apprehended, is necessary or even proper in order to protect the States against such a war or invasion. Aliens individually may commit acts tending to assist the enemy, and, in such case, it would become necessary to punish them. Should a body of armed aliens (the supposed case of the select committee) land with views evidently hostile, to whatever nation they might belong, the act itself would be an invasion, and the necessity of repelling, or if another expression is selected, of removing them, would be self-evident and immediately flowing from the specific power delegated to Congress to protect the States against invasions. But it is preposterous to say that the necessity of a general removal of alien friends flows from the apprehension of an invasion. The law concerning aliens, however, does not designate the acts which shall establish the necessity of their removal individually. Although they may not have been concerned in any machinations against Government; although the machinations in which they may have been concerned shall not have tended to promote or assist an invasion; and although their machinations might be sufficiently prevented and punished in the common course of law; although, therefore, their removal may not be necessary to protect the States against an invasion; yet, by the present law, they are liable to be removed, if they shall be suspected of being concerned in those machinations. Their having actually and individually committed certain acts is requisite to constitute that necessity which alone can justify the exercise of the power delegated by this law. And yet that removal, which, in order to be constitutional, should rest on its necessity, depends, by the provisions of this law, on the bare suspicion of a necessity. But necessity implies proof, and cannot rest on suspicion. The law cannot be supported by the constitution unless that instrument had declared that Congress shall have power to pass laws which they may suspect to be proper or necessary in order to carry into effect certain specific powers delegated to them. But the law does not even confine its operation to cases when a war or invasion should be apprehended. Supposing the alarms on that subject to be completely at an end, still the power remains with the PRESIDENT to remove aliens suspected by him to be concerned in secret machinations against Government. The power delegated by this law is not applicable exclusively to cases where it may be thought necessary in order to carry into effect the power to protect States against an invasion. It is to apply generally and under color of its necessity for executing certain specific powers, it may be exercised in a case where that specific power, on which alone it rests, has itself, nothing on which to operate. Although it may happen that there shall be no necessity to protect States against invasion, it will even then, according to this constructive doctrine, still be lawful to do an act which cannot be constitutional, except on account of its being necessary to protect States against invasion. In order, therefore, to support the constitutionality of the law, the select committee must suppose, in the first place, that Congress may pass laws, without a certainty of their being necessary for carrying into execution some of the specific powers granted to them; that is to say, that Congress have a right to pass laws which may be unnecessary for that purpose. In the next place, that if a certain law is necessary only for executing a constitutional measure of a temporary nature, that law may constitutionally be executed, although the temporary measure itself should not be executed at all; that is to say, that the incidental power may be exercised for a purpose different than that of executing the original power on which it rests. The application of that constructive doctrine to the sedition and alien laws justifies a conclusion that, if adopted, it will substitute in that clause of the constitution a supposed usefulness or propriety to the necessity expressed and contemplated by the instrument, and will, in fact, destroy every limitation of the powers of Congress. It will follow that instead of being bound by any positive rule laid down by their charter, the discretion of Congress, a discretion to be governed by suspicions, alarms, popular clamor, private ambition, and by the views of fluctuating factions, will justify any measure they may please to adopt; that, instead of being bound by a constitution, they may claim the omnipotence of a British Parliament; that all the reserved powers of the people or of the States will be swallowed up at their pleasure by that undefined discretion; in a word, that the constitution itself, so far as respects a limitation of powers, is by that doctrine completely annihilated. Even the positive checks, which, in a few instances, prohibit the exercise of certain powers, will not prove a sufficient guard against an inordinate appetite to legislate on some favorite subject. Thus, in the case of the sedition law, the prohibitory clause, respecting an abridgment of the liberty of the press, is attempted to be construed away by star-chamber definitions, by exotic doctrines, which, if suffered to flourish, will overshadow and smother every plant of American growth; doctrines incompatible with the principles of a Government elective in all its Executive and Legislative branches; of a Government which the people, the sole fountain of power, cannot properly carry into execution, if the sources of information are shut up from them; if a free and full discussion of every public measure is at the will of those who enjoy only a delegated authority, checked and embarrassed by prosecutions for libels, grounded solely on the British system of hereditary prerogative. And thus, in the case of the alien law, it is said that the temporary prohibition enjoined on Congress, to forbid the importation of persons, must be understood as applying only to slaves; and that a power to remove emigrants may be constitutionally exercised, though that of prohibiting their migration should be unconstitutional. The evidence of members of the Convention which framed the constitution, has sometimes been offered to prove that that body by _persons_, meant _slaves_. But the evidence of those members cannot prove any thing beyond their own individual intention, or, at most, their belief of what might have been the intention of some other members. Nor is, on any possible supposition, the intention of the Convention itself of any importance to decide the true meaning of the constitution. For they were not the legislators who passed and ratified the act, but only the framers who drew the instrument and offered it for consideration. As well might the Judges of the Supreme Court be induced in their decision on a point of law, to abandon the clear construction pointed out by the precise meaning of the words of the statute, on account of the supposed opinion of some one of the members of the committee of this House that had drafted the law, as we be guided by what was, at the time, the meaning of some of the gentlemen who drew the constitution. After a lapse of ten years, it is preposterous to receive parole evidence against a sacred record. Are the people of America to be told, after a lapse of ten years, that the delegation of powers, which they sanctioned under the impression of what on its face appeared to be its meaning, is to receive a contrary construction, bottomed on private meaning, on the unknown opinion of the members of a body whose deliberations were secret? And if, even through mistake, those individuals adopted expressions which conveyed a different meaning from what they intended, is that supposed intention to prevail over the explicit sense of those expressions? But we are told by the select committee, that "there could not have been the least reason" for confining the restriction to the then existing States, and to a period of twenty years, had the restriction "been intended" to apply to all emigrants in general. Here again, a supposed intention is brought as an argument against the general acceptation of the word "persons." The question is not, whether we are at a loss to find the reasons which dictated a modification of the restriction. Yet, if we were to recur to suppositions, we might as well suppose that the then existing States, which alone formed the constitution, felt interested only for themselves, and not for future non-existing States; and that those States, who were interested in promoting the migration of free persons, were satisfied with the same regulation which satisfied those States who were apprehensive of an interference in the importation of slaves. But the only question is, whether modification is contradictory with the common acceptation of the word "persons," which, it will not be denied, in its natural sense, will apply to free as well as to the other description of individuals? Whether there is any thing absurd or repugnant to common sense, in saying that Congress shall not, for twenty years, prohibit the migration of free persons in the existing States? If there be nothing inconsistent in that provision, the modification of the restriction cannot modify and alter the meaning of the word "persons." Was there any possibility of doubt on the sense of that word, it might be explained by other parts of the constitution and by other expressions in the clause itself. The 2d section of the 1st article of the constitution, speaking of the mode of ascertaining the respective numbers of the several States, declares that they shall be determined by adding to "the whole number of free persons" (including those bound to service for a term of years, and excluding Indians not taxed) "three-fifths of all other persons." A sentence in which the word _persons_ is expressly applied first to freemen, and secondly to slaves. The prohibitory clause itself declares that the migration or importation of such persons as any of the States, &c., shall not be prohibited. The word "migration," as contradistinguished from "importation," clearly implies the free will of the person, and applies exclusively to free persons. The select committee have also informed us that the power to send off emigrants, who abuse the indulgence granted them to remain, is a very different thing from the power of preventing emigration; meaning, I suppose, that although Congress might be forbidden by the constitution to prohibit migration, they may constitutionally send off such emigrants. Was the power claimed by this law, that of punishing by transportation aliens convicted of certain offences, defined by the law, although the constitutional necessity of the mode of punishment would still remain to be proven, yet the argument of the committee would deserve some consideration. But it is denied that there is the least difference between a power of prohibiting emigration and that of sending off any alien at the will of the PRESIDENT, merely because he is suspected by that Magistrate. The transportation of the emigrant does not rest on any act committed by him, but on the degree of suspicion entertained by the PRESIDENT. The removal, therefore, contemplated by the law, is not the special removal of certain emigrants, but a general power to remove all the emigrants, on suspicion, if the PRESIDENT shall please. I must confess that, to my understanding, that power to remove all emigrants would, if exercised, (and the law authorizes its general exercise,) amount precisely to the same thing with a general prohibition of emigration. So far is it true that the clause of the constitution admits of a construction which would defeat its object; that, at the end of it, we find a provision permitting Congress to lay a duty of ten dollars, not on migration, but on the importation of persons. Had it not been for that provision, Congress could not even have checked that importation by any duty. As the clause now stands, they cannot check the migration by any duty whatever, nor the importation by a duty higher than ten dollars. And yet it is contended that notwithstanding so much caution, Congress may, by a general power of sending off emigrants, evade the restriction laid upon them, and altogether prevent the effect of migration. Finally, if there be any difference between the power of prohibiting migration and that of sending off emigrants, it consists in this, that it might have been apprehended that, under color of the general power over commerce given to Congress, they might, by duties or other commercial regulations, have prevented or checked migration; but that there does not exist any power granted to the General Government by the constitution which can rationally serve as a pretence to claim an authority to remove emigrants generally. And the only deduction to be thence inferred is, that the clause now under consideration, although it might be proper for preventing the exercise of the first power, was unnecessary for the last purpose--a conclusion to which I agree in its full extent, and which it seems to me I have already fully established in the first part of my arguments. The select committee (driven thereto, perhaps, by the weakness of the ground they were compelled to defend) have recurred to a last argument, the most extraordinary, perhaps, of any they have advanced. Having said, in the former part of their report, that every nation had a right to send off aliens at will, they afterwards assert that, "as the constitution has given to the States no power to remove aliens," it is necessary to conclude that the power devolves to the General Government. It is, I believe, the first time it has been suggested that the powers of the individual States were derived from the Constitution of the United States. That constitution has heretofore been considered as a delegation of powers to the General Government, and not to the several States. But the assertion of the committee may be shortly answered by reading the twelfth amendment to the constitution, viz: "The powers _not delegated_ to the United States by the constitution, _nor prohibited_ by it to the States, are _reserved_ to the States, respectively, or to the people." In order to prove that the powers are not reserved to the States, it is necessary to prove that they are delegated to Congress; and the committee, with that kind of logic which pervades the whole of their report, in order to prove that powers are delegated to Congress, assume the position that they do not belong to the States. The constitution declares that the powers not prohibited to the States are reserved to them, and the committee asserts that the powers not given to the States, are not reserved to them. It would seem, as the committee had been desirous of justifying, by their own arguments, what I have advanced, that the doctrine necessary to support the constitutionality of this law would infallibly swallow up all the powers of the several States. That the States had a right to legislate on this subject never was denied. It is a fact, that some of them have legislated upon it. Virginia has passed an alien law, which has been quoted by the supporters of the law of Congress. It was strange enough, that on a constitutional question, whether the United States or the several States had a right to pass such laws, the advocates for the right of Congress should quote a law of one of the States, which proved the very reverse of their doctrine. But their object was to puzzle and confound, and not to enlighten the understanding; and if they meant to rescue the law of Congress from the charge of impropriety and injustice, by the instance of that of Virginia, they have been guilty of a gross misrepresentation; for the act of that State, so far from being similar to that complained of, is not a law concerning alien friends, but a law respecting alien enemies, perfectly similar to that of Congress, of which no one complains, and which passed without opposition. To the argument against the law, drawn from that part of the constitution which secures the trial of all crimes by jury, the most satisfactory answer given by the committee is, that aliens not being parties to the constitution, have no rights under it. Without entering into an examination of the constitutional question arising on that point, I will only remark, that the construction is harsh; and that, to transport emigrants, "merely from motives of policy," and "without their having committed any offence," is often unjust--always oppressive and cruel. The manner in which aliens have been invited to this country, and the peculiar situation in which they stand, justify the assertion. The constitution gives to Congress no power over aliens, except that of naturalization. The power, therefore, remains with the States to give to aliens the rights of denizens. That power has not been exercised by that name; but it has, in fact, been carried into effect. Not only in some States have aliens been enabled to purchase, to hold, to inherit, and to leave by will, real estate--a right which principally constitutes a denizen--but many have actually been admitted in some States, either by special acts of the Legislature, or in conformity to former general laws, to all the rights of citizens of those States, so far as it was in the power of individual States to do it; that is to say, that they have received every right, but such as arise from naturalization--every right of denizens. On the other hand, the laws of the Union have invited emigration, by holding out the prospect of being naturalized at the end of a period which, till nearly the time when the alien law passed, never exceeded five years. Under these laws, emigrants have, by a formal declaration before our courts, given evidence of their intention of becoming citizens and of renouncing their former allegiance--a declaration almost tantamount to an actual renunciation. They have abandoned their native countries for ever; many of them have acquired lands, and married in America; most of them have here the whole of their property, or their only means of subsistence. Under all these circumstances, it may be doubtful whether a great proportion of these aliens are not entitled to the rights of denizens; and if they are not so, by a strict construction of positive laws, at least, it can hardly be denied that the provisions of the law violate, in this respect, the dictates of humanity and justice. The policy of this measure seems to be defended by the select committee on the same ground which is to be a pretence and a justification for every act of domestic oppression, for every encroachment of power, for every new tax, for every extravagant loan, for every prodigal act of expenditure, for every increase of the navy, for every standing army which may be raised under the various names of permanent army, additional army, provisional army, eventual army, or _well-affected_ volunteers. The alien and sedition acts form, in the opinion of the committee, an essential part of our general system of defence against France. I do not mean to follow them, whilst they use, instead of arguments, the mere cant of the day. They cannot be serious when they tell us of the employment of the active talents of a numerous body of French citizens here as emissaries and spies. And if they are, does that committee mean to impose upon this House, as upon the people of some parts of the Union? Do we not know that, if there be any danger from France, the act respecting alien enemies is applicable to her citizens, and that the law now complained of respects alien friends, and was originally intended to operate, not against subjects of France, but against _Irish_ emigrants and other subjects of Great Britain? Do we not know that, notwithstanding all the clamor of last summer, and notwithstanding the two laws passed on that subject, not a single French citizen has been removed? Still less can I suppose that the committee were in earnest when they pretended to believe that the United States offered as easy and alluring a conquest to France as Egypt. They seem to have forgotten that Egypt was governed and defended by Mamelukes and inhabited by slaves; that the United States are _as yet_ inhabited and defended by the people themselves. But if the committee thought that the fear of an invasion did justify those laws, when passed, will they pretend to say that the danger, even in their opinion, now exists, and that the same necessity now justifies the continuance of the laws? It is not only against invasion that those laws are said to be necessary. We are told of a system which convulses the civilized world, and has shaken the fabric of society; of an unprecedented combination to establish new principles of social action, on the subversion of religion, morality, law, and Government. If these are the dangers which threaten us, and if Congress think themselves vested with all the powers which they may think expedient to repel them, I wish to know to what extent they may not legislate, and by what possible limitation they can be restrained, in their assumption of powers? There is not an individual on this floor, there is not a man of common understanding and common information in the nation, who, unless he is under the influence of the illusions of the new anti-republican fanaticism, or blinded by party spirit, does not know that these pretended dangers are, in America, the visionary phantoms of a disordered imagination. And I have taken notice of those sentiments merely to give an additional proof, that under pretence of preventing imaginary evils, an attempt is made to establish the omnipotence of Congress, and substantial despotism, on the ruins of our constitution. Is that a measure of security and general defence which puts a numerous body of aliens--aliens who are represented as so desperate and dangerous--under the absolute control of one man, which, by holding the rod of terror over their heads, and leaving their fate at his sole disposal, renders them complete slaves of the PRESIDENT, and makes them proper instruments for the execution of every project which ambition may suggest, which faction may dictate? Is that a Government of laws which leaves us no security but in the confidence we have in the moderation and patriotism of one man? And do the abettors of these laws forget that even that is precarious, and that the unlimited power which they think safely lodged in one individual may in a day be vested in another man in whom they do not place the same confidence? Is that a measure of general defence which has diminished confidence in the Government and produced disunion among the States and among the people? Yet I am happy to find that even this law has produced such general dissatisfaction. I was the more alarmed on account of this law, because, attacking only aliens, for whom no immediate concern could be felt, it might the more easily become the vehicle to introduce doctrines and innovations which would hereafter serve as a precedent to attack the liberties of the citizens themselves. A pretence of general defence may justify oppressive measures against citizens as well as against aliens. Although some nice distinctions may now be made in order to discriminate one class from the other, yet it must be remembered that the only security of citizens against unconstitutional measures consists in a strict adherence to the constitution; that their liberties are only protected by a _parchment_--by _words_--and that they may be destroyed whenever it shall be admitted that the strict and common sense of words may be construed away under the plea of some supposed necessity; whenever the constitution shall be understood and exercised as an instrument unlimited where it grants power, and nugatory where it limits power. We may feel alarmed when we see a committee of this House asserting that the powers not given to the States (and it may be added, by the same rule of construction, the powers not given to the people by the constitution) belong to the General Government. We may feel alarmed when that committee insist that, although it is true that the trial of all crimes must be by jury, yet, to inflict a punishment when no offence--no crime--has been committed, is not a violation of the constitution; when the only distinction they apply to citizens consists in the difference of punishment, but not in a difference of the principle. We may feel alarmed when we find that Congress have already acted on those principles towards citizens; that they have already passed another law--the sedition law--grounded on the same principles, on the same doctrine, or rather on the same abandonment of the explicit and evident sense of the constitution, which alone could justify the alien law. I hope--I trust--that the spirit which dictated both laws has subsided, even within these walls, and that the same Congress who, under the impressions of a momentary alarm, which prevented a cool investigation, hastily adopted those two measures, will have courage enough to revise their own conduct, to acknowledge their own errors, and, by a repeal of the obnoxious acts, restore general confidence, union, and harmony, amongst the States and the people. When Mr. GALLATIN had concluded, the question was taken and carried--yeas 52, nays 48. The 2d resolution being next in order, viz: _Resolved_, That it is inexpedient to repeal the act passed the last session, entitled "An act in addition to the act, entitled An act for the punishment of certain crimes against the United States:" Mr. NICHOLAS rose and spoke as follows: Mr. Chairman--I am sorry to be obliged to rise at this late hour of the day, indisposed also as I find myself, to speak on this important question; but, since gentlemen are determined now to decide upon it, I must be indulged in making some observations upon it, previous to the question being taken. The select committee had very truly stated, that only the second and third sections of the act, in addition to the act for the punishment of certain crimes against the United States, are complained of--that the part of the law which punishes seditious acts is acquiesced in, and that the part that goes to restrain what are called seditious writings, is alone the object of the petitions. This part of the law is complained of as being unwarranted by the constitution, and destructive of the first principles of Republican Government. It is always justifiable, in examining the principle of a law, to inquire what other laws can be passed with equal reason, and to impute to it all the mischiefs for which it may be used as a precedent. In this case, little inquiry is left for us to make, the arguments in favor of the law carrying us immediately, and by inevitable consequence, to absolute power over the press. The case chosen for our first legislation, that of "false, scandalous, and malicious writings," is specious, and as likely as any can be to establish an interest in its favor; but when it is fairly examined, it will be found to operate on cases, which could not, at first view, be expected to come under it; to be the instrument of most unjust oppression, and to restrain that free communication of honest opinion which is the soul of the Government. But when you come to inquire further, and learn, from the advocates of the law, the authority which they claim for passing it, you will find that the power claimed does not stop even with this law, mischievous as it may be, but that it extends to absolute and unlimited control. It is not pretended that the constitution has given any _express_ authority which they claim for passing this law, and it is claimed only as implied in that clause of the constitution which says, "Congress shall have power to make all laws which shall be _necessary and proper_ for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or office thereof." It is, therefore, necessary to fix a just construction of this clause. That the powers of the Federal Government were intended to be limited, is universally admitted, in the abstract; is proved by every clause of the constitution, and is positively declared by the 12th amendment in these words: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The just construction of the constitution, if the clause respecting necessary and proper powers had been omitted, would have been the same that it ought to be with the addition; for there can be no doubt, that a grant of specified powers would have contained a grant of such power as is necessary to carry the specified power into effect, and therefore the declaration ought to make no difference, according to a well-known maxim. This was the understanding of all the friends of the constitution at its adoption, and the constitution ought now to be construed as if the clause had been omitted. But it is proper to examine the meaning of it, as expressed. It is clear, that this clause was intended to be merely an auxiliary to the powers specially enumerated in the constitution; and it must, therefore, be so construed as to aid them, and at the same time to leave the boundaries between the General Government and the State Governments untouched. The argument by which the select committee have endeavored to establish the authority of Congress over the press, is the following: "Congress have power to punish seditious combinations to resist the laws, and therefore Congress must have the power to punish false, scandalous and malicious writings; because such writings render the Administration odious and contemptible among the people, and, by doing so, have a tendency to produce opposition to the laws." It is expressly admitted by the committee, that the power to punish seditious combinations to resist the laws, is only derived, by construction, from the clause giving all necessary and proper powers before recited; and that there is no express power in the constitution to that effect. There is no dispute about this construction being just; but I contend that the inference from this implied power cannot be supported, viz: That Congress have a power to punish seditious writings. The constitution says: "Congress shall have power over all acts which hinder the execution," &c.; but, to make it support the construction of the committee, it should say that, "Congress shall have power over all acts which are likely to produce acts which hinder the execution," &c. Our construction confines the power of Congress to such acts as immediately interfere with the execution of the enumerated powers of Congress; because the power can only be necessary as well as proper, when the acts really would hinder the execution. The construction of the committee extends the power of Congress to all acts which have a relation, ever so many degrees removed, to the enumerated powers, or rather to the acts which would hinder their execution. By our construction, the constitution remains defined and limited, according to the plain intent and meaning of the framers; by the construction of the committee, all limitation is lost, and it may be extended over the different actions of life as speculative politicians may think fit. The suggestion on which the authority over the press is founded, is, that seditious writings have a tendency to produce opposition to Government. What has a greater tendency to fit men for insurrection and resistance to Government, than dissolute, immoral habits, at once destroying love of order, and dissipating the fortune which gives an interest in society? The doctrine that Congress can punish any act which has a tendency to hinder the execution of the laws, as well as acts which do hinder it, will, therefore, clearly entitle them to assume a general guardianship over the morals of the people of the United States. Again: nothing can have a greater tendency to ensure obedience to law, and nothing can be more likely to check every propensity to resistance to Government, than virtuous and wise education; therefore Congress must have power to subject all the youth of the United States to a certain system of education. It would be very easy to connect every sort of authority used by any government with the well-being of the General Government, and with as much reason as the committee had for their opinion to assign the power to Congress, although the consequence must be the prostration of the State Governments. But enough has been said to show the necessity of adhering to the common meaning of the word "necessary," in the clause under consideration, which is, that the power to be assumed must be one without which some one of the enumerated powers cannot exist or be maintained. It cannot escape notice, however, that the doctrine contended for, that the Administration must be protected against writings which are likely to bring it into contempt, as tending to opposition, will apply with more force to truth than falsehood. It cannot be denied that the discovery of maladministration will bring more lasting discredit on the government of a country, than the same charges would if untrue. This is not an alarm founded merely on construction; for the governments which have exercised control over the press, have carried it the whole length. This is notoriously the law of England, from whence this system has been drawn; for there, truth and falsehood are alike subject to punishment, if the publication brings contempt on the officers of government. I have shown, as I promised, that the authority on which this act is supported, gives unlimited power over the press, as to its investigation of public affairs, which is its most important function; and I will now endeavor to show, that the effect of the present law is very little short of the complete restraint of all useful discussion on public men and measures. The law has been current by the fair pretence of punishing nothing but falsehood, and by holding out to the accused the liberty of proving the truth of the writing; but, it was from the first apprehended, and it seems now to have been adjudged, (the doctrine has certainly been asserted on this floor,) that matters of opinion, arising on notorious facts, come under the law. If this is the case, where is the advantage of the law requiring that the writing should be false, before a man shall be liable to punishment, or of his having the liberty of proving the truth of his writing? Of the truth of facts there is an almost certain test; the belief of honest men is certain enough to entitle it to great confidence; but their opinions have no certainty at all. The trial of the truth of opinions, in the best state of society, would be altogether precarious; and, perhaps, a jury of twelve men could never be found to agree in any one opinion. At the present moment, when, unfortunately, opinion is almost entirely governed by prejudice and passion, it may be more decided, but nobody will say it is more respectable; chance must determine whether political opinions are true or false, and it will not unfrequently happen, that a man will be punished for publishing opinions which are sincerely his, and which are of a nature to be extremely interesting to the public, merely because accident, or design, has collected a jury of different sentiments. If the effect of the present law is to restrain the free communication of opinion, and its principle will justify any control Government chooses to exercise over the press, an inquiry may safely be entered on, whether Congress ought to possess the power, even if the clause giving necessary and proper power would extend to such remote cases? It is the more necessary to inquire into the usefulness of this power in the hands of Congress, since the opinion is becoming current, that that alone will give Congress a right to assume it, upon the principle that Government must have a right to do every thing proper for its safety. This doctrine may be very fallacious, if not taken in the restricted sense to be found in the clause giving necessary powers. No government can assume a power not delegated, on pretence of its being necessary; for none have a right to judge of what is necessary but the makers of the constitution, otherwise all governments would be competent to make every alteration in a constitution they might think proper, and the constitution would rank with the laws, and not above them. For the execution of powers expressly given, there must have been some latitude allowed to those who were to execute them, the same in fact which is expressed in the clause respecting necessary powers. Is the power claimed proper for Congress to possess? It is believed not, and will readily be admitted, if it can be proved, as I think it can, that the persons who administer the Government have an interest in the power to be confided, opposed to that of the community. It must be agreed that the nature of our Government makes a diffusion of knowledge of public affairs necessary and proper, and that the people have no mode of obtaining it but through the press. The necessity for their having this information, results from its being their duty to elect all the parts of the Government, and, in this way, to sit in judgment over the conduct of those who have been heretofore employed. The most important and necessary information for the people to receive is, of the misconduct of the Government; because their good deeds, although they will produce affection and gratitude to public officers, will only confirm the existing confidence, and will, therefore, make no change in the conduct of the people. The question, then, whether the Government ought to have control over the persons who alone can give information throughout a country, is nothing more than this, whether men interested in suppressing information necessary for the people to have, ought to be intrusted with the power, or whether they ought to have a power which their personal interest leads to the abuse of? I am sure no candid man will hesitate about the answer; and it may also safely be left with ingenuous men to say whether the misconduct which we sometimes see in the press, had not better be borne with, than to run the risk of confiding the power of correction to men who will be constantly urged by their own feelings to destroy its usefulness. The mode of thinking which countenances this law, and the doctrines on which it is built, are derived from a country whose government is so different from ours, that the situation of public officers ought to be very different. In Great Britain, the King is hereditary, and, according to the theory of their government, can do no wrong. Public officers are his representatives, and derive some portion of his inviolability from theory, but more from the practice of the government, which has, for the most part, been very arbitrary. It was, therefore, of course, that they should receive a different sort of respect from that which is proper in our Government, where the officers of government are the servants of the people, are amenable to them, and liable to be turned out of office at periodical elections. In Great Britain, writings are seditious, though they are true, if they tend to bring a public officer into contempt. In this country, it is seen that the same principle is contended for, and that in practice, with respect to matters of opinion, we have gone the whole length of the principle. How long can we expect to maintain the other distinctive qualities of the magistracy of the two countries, when this sameness is established? How long can it be desirable to have periodical elections, for the purpose of judging of the conduct of our rulers, when the channels of information may be choked at their will? But, sir, I have ever believed this question as settled by an amendment to the constitution, proposed with others, for declaring and restricting its powers, as the preamble declares, at the request of several of the States, made at the adoption of the constitution, in order to prevent their misconstruction and abuse. This amendment is in the following words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances." There can be no doubt about the effect of this amendment, unless the "freedom of the press" means something very different from what it seems; or unless there was some actual restraint upon it, under the Constitution of the United States, at the time of the adoption of this amendment, commensurate with that imposed by this law. Both are asserted, viz: that the "freedom of the press" has a defined, limited meaning, and that the restraints of the common law were in force under the United States, and are greater than those of the act of Congress; and that, therefore, either way the "freedom of the press" is not abridged. It is asserted by the select committee, and by every body who has gone before them in this discussion, that the "freedom of the press," according to the universally received acceptation of the expression, means only an exemption from all previous restraints on publication, but not to an exemption from any punishment Government pleases to inflict for what is published. This definition does not at all distinguish between publications of different sorts, but leaves all to the regulation of the law, only forbidding Government to interfere until the publication is really made. The definition, if true, so reduces the effect of the amendment, that the power of Congress is left unlimited over the productions of the press, and they are merely deprived of one mode of restraint. The amendment was certainly intended to produce some limitation to legislative discretion, and it must be construed so as to produce such an effect, if it is possible. This is required in the construction of all solemn acts, but must be more particularly due to this on account of the various examinations it underwent, previous to its adoption. It was first recommended by the conventions of several States, was adopted by two-thirds of both Houses of Congress, and finally ratified by three-fourths of the State Legislatures. To give it such a construction as will bring it to a mere nullity, would violate the strongest injunctions of common sense and decorum; and yet that appears to me to be the effect of the construction adopted by the committee. If subsequent punishments are sufficient to deter printers from publishing any thing which is prohibited, there is no stint to the power of Congress; and yet, it appears to me that a limitation was clearly intended. I cannot doubt the power of Government to bend printers to their will by subsequent punishments, when all other offences are restrained only in this way. Government does not punish men for keeping instruments with which they can commit murder, but contents itself with punishing murder when committed. The effect of the amendment, says the committee, is to prevent Government taking the press from its owner; but how is their power lessened by this, when they may take the printer from his press and imprison him for any length of time, for publishing what they choose to prohibit, although it may be ever so proper for public information? The result is, that Government may forbid any species of writing, true as well as false, to be published; may inflict the heaviest punishments they can devise for disobedience; and yet we are very gravely assured that this is "the freedom of the press." But it is worth while to trace this definition to the place from whence it is taken, and inquire into the circumstances in which it is used. Blackstone, in his Commentaries on the Laws of England, after stating the law respecting libels, which is, that every thing which brings a magistrate into contempt is punishable, whether true or false, goes on to say, that this law is not inconsistent with the liberty of the press; and then gives a definition of the liberty of the press in the manner it is used by the committee. The meaning of all Blackstone has said is this, that the press has the proper degree of liberty in England, and that libels, whether true or false, ought to be punished there. Let us apply what he has called a definition, in the way he used it, to the legislation of the United States. Suppose the present question was, whether we should punish truth, as well as falsehood, in libels, would gentlemen venture to tell us that it was consistent with the freedom of the press, or that the degree of freedom proper for the United States would remain? I venture to say they would not. Ought they, then, to support the doctrine which hereafter may be practised on to the full extent? Is there not reason to believe gentlemen hope to conceal the full extent of their principles, by bringing them into operation only by degrees? But, sir, it is a manifest abuse of Blackstone's authority to apply it as it has been here applied. He had advanced into the fourth volume of a panegyric on the laws of England, and after stating the law on this subject, makes a theory to justify the actual state of the law. It must be remarked, in his justification, that the nature of their government justifies more rigor than is consistent with ours, and that the existing law, of which he was writing the praise, had been greatly softened in practice, by public opinion. In this case, there was no danger of impairing the security to liberty, intended by the constitution; for England has no constitution but what may be altered by the Parliament, and therefore no great precision was necessary with respect to general principles. Indeed, his observations on this subject ought to be called a theory, and a theory adapted merely to his own country, and not a definition. Very different are the circumstances in which his doctrine has been applied here. A restrictive clause of the Constitution of the United States, by its application, is made to mean nothing, and when it is clearly the intention of the constitution to put, at least, some acts of the press out of the control of Congress, by the authority of this writer, all are subjected to their power. But it is said, that the States have all adopted the same construction which is given to freedom of the press by the committee, for that all the State constitutions provide for it, and yet the law of libels remains part of their codes. If this is fact, about which however I am uninformed, it is easily to be accounted for. At the Revolution, the State laws were either the law of England, or were built on it, and, of course, they would contain the monarchical doctrine respecting libels. When the State constitutions were formed, the old law was continued in force indiscriminately, and only a general exception made of what should be found inconsistent with the State constitutions. Now, to prove that the States have considered the law of libels consistent with the freedom of the press, gentlemen should show that this law has been practised on since the Revolution, and that the attention of the States had been called to it by its execution, and that it still remains in force. I believe this cannot be done. So far as I know, it has been a dead letter. I mean the law of libels against magistrates, and if so, the argument is reversed, and is wholly on my side. The terms of this law furnish one of the best proofs of the truth of my opinion; for the framers of it, wound up as they have been, in their notions about Government, since the adoption of the State Governments, endeavored to take a middle course between real liberty and the State law, which is supposed to continue in force, and have studiously endeavored to conceal that their doctrine leads to the same thing by constantly pretending that their law is to punish only falsehood. This is a plain admission, that even now, public opinion would not support what they pretend is the law of each State. But from the argument before urged, I think it must be admitted, that if the States had so understood it, the construction could not be extended to this amendment. No solemn instrument can be construed so as to destroy it. I have seen somewhere, and I beg leave here to remark on it, the authority of the Convention who formed the constitution of Virginia, quoted to justify this construction. That Convention is said to have passed a law similar to the law of Congress, after having provided for the liberty of the press in their bill of rights. Let us examine that law. The first section is to punish those who shall "by any word, open deed, or act, advisedly and willingly maintain or defend the authority, jurisdiction, or power of the King, or Parliament of Great Britain, heretofore claimed over this Colony, or shall attribute any such authority," &c. This section, passed at the beginning of the most awful contest in which ever man was engaged, a contest for the right of self-government against one of the most powerful nations in the world, was to establish what? Not the inviolability of the Governor of the State, nor of the majority of either House of the Legislature, but to punish men who should promote resistance to the right of the people to govern themselves, to the principle of the constitution, to the republican principle. So different is this from the object of the law of Congress, that it would have been impossible to believe that they should have been compared, if we had not seen it done. All argument must be thrown away on gentlemen who do not feel the difference between the respect due to the constitution, to the right of self-government in the people, and that which is due to the organs of administration, who cannot only deserve contempt, but who are to be removed with disgrace, according to the constitution itself, when they misbehave. By the second section of this law, those were to be punished "who should maliciously and advisedly endeavor to excite the people to resist the Government of the colony, or persuade them to return to a dependence on the Crown of Great Britain, or maliciously and advisedly to excite or raise tumults and disorders in the State, or maliciously and advisedly terrify and discourage the people from enlisting in the service of the Commonwealth, or dispose them to favor the enemy." The design of this section is apparently the same with the former. Every act of ill-will to the existing Government, is immediately followed by one tending to submission to Great Britain. These acts are, however, out of the question, for they belong to the class enumerated in the first section of the sedition law, which nobody wishes to repeal, as the committee declare. But if the law had any analogy to the law of Congress, it would be improper to quote it; for it is well known that our Revolution made a resort to expedients necessary in a variety of instances, which could not be justified by principle, and that for a time personal rights were compelled to bend before public necessity. A distinction is very frequently relied on, between the freedom and the licentiousness of the press, which it is proper to examine. This seems to me to refute every other argument which is used on this subject; it amounts to an admission that there are some acts of the press which Congress ought not to have power to restrain, and that by the amendment they are prohibited to restrain these acts. Now, to justify any act of Congress, they ought to show the boundary between what is prohibited and what is permitted, and that the act is not within the prohibited class. The constitution has fixed no such boundary, therefore they can pretend to no power over the press, without claiming the right of defining what is freedom, and what is licentiousness, and that would be to claim a right which would defeat the constitution; for every Congress would have the same right, and the freedom of the press would fluctuate according to the will of the Legislature. This is, therefore, only a new mode of claiming absolute power over the press. But it is said, that the phraseology of the amendment proves that the framers of it considered the freedom of the press as limited, otherwise they would have used the same words in speaking of the freedom of the press which they use in speaking of religious establishments. This argument is certainly fanciful; but it shall be considered, as it is my design to leave no argument, which I recollect to have seen, unanswered. It is plain the writer of the amendment intended to indulge his copiousness of expression, or that he had been accustomed to use certain words in a particular connection. The amendment says, in speaking of religion, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The change of expression, according to the argument, ought to have some new object; and yet there can be no doubt that if the word _prohibiting_ was dropped, the provision would be the same. But the argument will lose all force when the amendment is read to the end, and it seems to have arisen merely from the committee having stopped in the middle of it, and lost sight of the latter part. It says, "or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances." The argument is that the word _abridging_, as it is distinguished from _respecting_, implies that the freedom of the press was before limited; but, if this is true, it must also be the case with the right of peaceably assembling and petitioning, &c. Is this pretended, and may we hereafter expect to have a definition of the right of petitioning, which will put it also under the control of Congress? I think I have answered every construction of the amendment which can prevent its being completely prohibitory of all legislation by Congress on the subject of the press, unless there was some existing restraint under the Constitution of the United States, at the time of adopting the amendment. To this inquiry I now proceed. It is said, there is a common law which makes part of the law of the United States, which restrained the press more than the act of Congress has done, and that therefore there is no _abridgment_ of its freedom. What this common law is I cannot conceive, nor have I seen any body who could explain himself when he was talking of it. It certainly is not a common law of the United States, acquired as that of England was, by immemorial usage. The standing of the Government makes this impossible. It cannot be a code of laws adopted because they were universally in use in the States, for the States had no uniform code; and if they had, it could hardly become, by implication, part of the code of a Government of limited powers, from which every thing is expressly retained, which is not given. There never was a uniform code of laws at any time among the States. Their settlement took place at different times, and the law of England was adopted up to the respective settlements, in the whole or by selection. Virginia recognized the common law, properly so called, and the statutes to the 4th James I.; Maryland, the common law, and statutes up to the time of her settlement; and South Carolina, I am told, never acknowledged any of the English statutes to be in force, except what were specially adopted by law. With this dissimilarity at the commencement, there can be no doubt that the decisions of courts, and the statutes which were constantly passing, must have made the codes of the several States altogether unlike at the time of adopting the Federal Government. Is it the law of England, at any particular period, which is adopted? It cannot be believed that this was a universal favorite; for it had been greatly altered in every State, to adapt it to their situation, and it cannot be believed that after altering it under the instruction of experience, it was intended to bring it again into force. But the nature of the law of England makes it impossible that it should have been adopted in the lump into such a Government as this is; because it was a complete system for the management of all the affairs of a country. It regulated estate, punished all crimes, and, in short, went to all things for which laws are necessary. It might be more properly considered as the measure of the powers left with the States. But how was this law adopted? Was it by the constitution? If so, it is immutable and incapable of amendment. In what part of the constitution is it declared to be adopted? Was it adopted by the courts? From whence do they derive their authority? The constitution, in the clause first cited, relies on Congress to pass all laws necessary to enable the courts to carry their powers into execution; it cannot, therefore, have been intended to give them a power not necessary to their declared powers. There does not seem to me the smallest pretext for so monstrous an assumption; on the contrary, while the constitution is silent about it, every fair inference is against it. It was thought necessary to adopt expressly many of the ancient and most valuable principles of the law of England, such as trial by jury, and the writ of _habeas corpus_; and wherever the constitution gives cognizance of crimes, which were known in the law, it requires Congress to define them, and direct the punishment, except in the case of treason, which it defines itself. Perhaps it may be said, that the law of England with respect to libel was in force in all the States, and that therefore it is to be considered as adopted. When we recollect what that law is, that it punishes truth as well as falsehood, and that the Congress of 1798 did not think proper to enact its provisions in the full extent, it may be fairly denied that it could have accorded with the jealous republican temper of the Convention who adopted the constitution. If the common law was adopted on this subject, it was adopted entire as it then existed, and must remain for ever unchangeable as part of the constitution. The power of juries must be the same that it was then, and no more, and the improvement which was immediately afterwards produced by public opinion in that respect, in England, will be denied to us, and we may even have to regret the want of some of the provisions of the present odious law; but there is too little reason for the suggestion of there being a common law in the United States, to need a refutation. If there was a uniformity in the law respecting libels, it is one of the strongest evidences of what was before said, that this whole doctrine of libels was obsolete; for nobody can doubt, after hearing what it is, that it must have undergone considerable changes, if it had ever been practised on. The committee seem to suppose, for I confess it is very difficult to comprehend this part of their argument, that the law of libels is adopted by that part of the constitution which extends the judicial power to cases of law and equity arising under the constitution; for this is the expression of the part referred to by them, and not "offences arising under the constitution," as they have quoted it. How this can be inferred, I cannot conceive. If the expression was "offences," as they assert, still it would mean offences on which Congress was directed by the constitution to legislate; but, as the expression really is, the cases are innumerable which come within it. See "The Federalist," vol. II., for an explanation of this part of the constitution. It is there said: "It has been asked, what is meant by cases arising under the constitution, in contradistinction from those arising under the laws of the United States? All the restrictions on the authority of the State Legislature furnish examples of it," &c. For the opinion of the same writer, as to the force of the common law in the United States, see same volume, page 345, and the two following pages, in which he answers the objection to an omission of its provisions, and admits that it is not adopted by the constitution. Upon the whole, therefore, I am fully satisfied, that no power is given by the constitution to control the press, and that such laws are expressly prohibited by the amendment. I think it inconsistent with the nature of our Government, that its administration should have power to restrain animadversions on public measures; and for protection from private injury from defamation, the States are fully competent. It is to them that our officers must look for protection of persons, estates, and every other personal right; and, therefore, I see no reason why it is not proper to rely upon it, for defence against private libels. The call for the question being loud, Mr. MCDOWELL rose, and hoped the question would not now be taken, but that the committee would rise, it being now a late hour of the day, and he doubted not other gentlemen would wish to deliver their sentiments upon this important question; and he thought an hour or two of to-morrow might be well employed in the discussion of this subject--a subject which had been brought before the House by the people, and ought, therefore, to receive a full discussion. He moved the committee to rise. The question on rising, was put and negatived--55 to 42. The question was then taken on the resolution, and carried, 52 votes being in favor of it. The question was then taken upon the third resolution, which was carried without a division. The committee then rose, and the question being upon concurring in the agreement of the committee for the first resolution, Mr. LIVINGSTON entered upon a defence of the sentiments which he delivered when the passage of this law was under consideration, which, he said, had been much misrepresented; but, after making some progress in his observations, the Speaker declaring them unconnected with the question before the House, he sat down, and the first resolution was decided by yeas and nays, and stood--52 to 48, as follows: YEAS.--John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, Jonathan Brace, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, William Craik, Samuel W. Dana, John Dennis, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, Samuel Lyman, James Machir, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Isaac Parker, Thomas Pinckney, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, Robert Waln, and John Williams. NAYS.--Abraham Baldwin, David Bard, Thomas Blount, Richard Brent, Robert Brown, Samuel J. Cabell, Thomas Claiborne, William Charles Cole Claiborne, Matthew Clay, John Clopton, Thos. T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas Elmendorph, William Findlay, John Fowler, Nathaniel Freeman, jr., Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Josiah Parker, Thompson J. Skinner, Samuel Smith, William Smith, Richard Sprigg, Richard Stanford, Thos. Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams. Mr. MCDOWELL then moved an adjournment; which was negatived--55 to 38. The question was then taken on the second resolution, upon which the yeas and nays were exactly the same as upon the first. The question on the third was concurred in, 61 votes being for it. SATURDAY, March 2. EVENING SITTING. _Law of Retaliation._ Mr. OTIS called the order of the day on the bill vesting the power of retaliation, in certain cases, in the PRESIDENT OF THE UNITED STATES; when Mr. DENT moved to postpone the consideration of this bill until the next session of Congress; which motion was negatived--35 to 32. The House then went into a Committee of the Whole on this bill, and after some discussion, and an amendment being introduced into the preamble of the bill by Mr. DAYTON, (the Speaker,) to make it apply generally to any acts of severity that may be committed by the French Republic in pursuance of any violent decree, instead of applying particularly to the decree declaring American citizens, found on board vessels of their enemy, pirates, and liable to suffer death, the committee rose, and the amendment was concurred in. The question being, "Shall this bill pass?" Mr. LIVINGSTON complained that this bill went to place the power of life and death in the hands of the PRESIDENT, with respect to every Frenchman in this country, in case the French Government should commit any act of violence against one of our citizens. He doubted, indeed, whether he would not have this power, in case of any American citizen being killed in battle on board a British ship. The Legislature, he said, had no right to vest this power, except in case of war; nor did he believe it would ever be exercised, if given. And as the decree complained of had been two years in existence without being carried into effect, he thought there was no need now to create an alarm about it. Indeed, the last decree having been suspended, he considered the first to be so also. Mr. EDMOND was sorry, at this late hour, to occupy a single moment of the time of the House; but he found himself called upon to say a few words. It was a painful reflection, he said, that any nation in the world should deliberately pass a legislative act for the purpose of authorizing the commission of murder; for the _arrêt_ of the French Republic was nothing less than a law for putting innocent men to death. An instance like it could not be found on record. In time of war retaliation is found necessary to prevent the enormities of an enemy. Indeed, the intention of retaliation is always to prevent cruelty. This decree was said to be suspended; but if it were not intended to give it future operation, it would have been repeated. It might be convenient to suspend the decree for a time; but when a nation is so depraved as to pass a decree of this kind, what security have we that the decree will not be brought into operation in the recess of Congress. If it is not, the present law can have no effect. Mr. E. believed no one but the gentleman from New York could have supposed that this law was meant to retaliate for men killed in battle. If he examines the bill, he will find that the person must have been put to death pursuant to a decree of the French Republic. And whilst we suffer our humanity to be touched with respect to French citizens here, we ought not to forget American citizens, whose blood may be spilt in France under this decree. Mr. GALLATIN observed, that three arguments had been used in favor of passing this bill. One of them was, that it would afford protection to our seamen; the second, to give sufficient cause of irritation by repelling every hostile measure of the French Government by one of a similar nature; the third, to prevent the people of America having any belief in either the sincerity of France or the probability of a negotiation. Mr. G. did not believe that this bill would give the protection expected to our seamen; and as to the power of retaliation, well knowing, both from the character of the PRESIDENT and the general character of America, that retaliation would be repugnant to his feelings, and the feelings of the public at large, he did not believe a single case would ever happen in which it would be exercised. What, said Mr. G., would be the degree of proof necessary to carry into effect this law? A man must have been taken on board a British vessel, or some other vessel at war with France, and put to death or ill-treated by the French. It must also be proved to have been done in pursuance of a French decree. In the next place, he must be an American citizen, and have been compelled to go on board such ship; and Mr. G. did not know how all this information was to come to the PRESIDENT. If, said Mr. G., it be really our intention to give protection to our seamen, instead of authorizing the proposed retaliation, we ought to go to the source of the evil, and endeavor to prevent the impressment of our seamen by the British, which alone brought them into this situation. This bill does not comprehend any American who goes on board of a British ship of war voluntarily; they are not entitled to our protection by the law of nations; they must seek protection from the country under whose flag they sail. Those American citizens only, therefore, who have been forced on board a British ship of war, and who have been obliged to fight their battles against their will, are by this bill to be protected, so far as retaliation can protect them. Mr. G. said, he had been induced to mention this point, not only because it naturally flows from the subject, but from one of the documents which had been submitted to the House. He alluded to Lord Grenville's letter to Mr. King, our Minister at London. [Mr. G. read an extract of that letter.] Mr. G. observed, upon this document, that it contained a very extraordinary acknowledgment. Lord Grenville says, "the King feels the protection due to those who sail under his flag." Thereby openly acknowledging that there are a number of American seamen who do sail under his flag. And, as not many of our seamen had selected his service in preference to that of their own country; as our own seamen, if left to their choice, would sooner sail on board of our own ships than those of His British Majesty, it is therefore an explicit avowal of the impressment of American seamen. That identical document which communicates the offensive decree of France, is also the occasion of this bill. This acknowledgment, said Mr. G., leads to more than one consequence. If we pass this bill, it will amount to this, that knowing American seamen were impressed by the British, the fact having been thus confessed, we choose rather to pass a retaliatory law against the French for punishing our seamen found in a situation into which they were arbitrarily forced by the British, than apply a remedy to the root of the evil. Again, another part of this letter of Lord Grenville, when connected with this measure, made an extraordinary impression on his mind. The acknowledgment having been made, it might have been supposed Lord Grenville would have ordered all such American seamen to have been released; but he does not do this, but says the King will cause retaliation to be exercised. To do this might have some effect whilst these men remained on board of the King's ships; it would, therefore, increase his power, and prolong the time during which such seamen will remain on board. But Lord Grenville does not stop here. He says, the "King leaves it with the different powers to take measures accordingly." So that he gives us advice what we ought to do, and we are about to do it. Mr. G. had said, this bill was not likely to produce any effect; yet, if it should be put in force, by referring once more to Lord Grenville's letter, it will appear that the retaliation of which he speaks is to be confined to French prisoners, whom the fortune of war had thrown into the power of Great Britain; and he believed the present law should be confined to persons who should be captured by vessels of the United States. And it would be most effectual in this way; because if it were to operate against other French citizens in this country, the French Government would not be concerned about it, since ninety-nine out of a hundred of those citizens are probably emigrants, or persons for whose safety they have no interest. If by meeting every hostile act of the French Government by a measure of a similar kind, we could render this country more respectable, Mr. G. should be in favor of it; but, in the present case, he did not think the measure applicable. There was a great difference, he said, between measures of hostility and retaliation. Measures of retaliation could do no good, except as preventives; and as the decree in question had already been two years in force without being carried into effect, it could scarcely be expected that it would now be exercised. It must be allowed, Mr. G. said, that some change had taken place in our situation with respect to France; but it seemed as if gentlemen wished, by the passing of this bill, to take off any impression of this kind which might have been made on the people by the late appointment of Ministers to treat with France. Mr. G. did not mean to express any opinion on the probable issue of that nomination. He believed the PRESIDENT had taken certain measures; and that nothing which he could do or say would either accelerate or delay those measures. He wished to leave them uncontrolled, to have the effect they may, whatever it may be. Yet, in relation to what had been said with respect to Guadaloupe, he believed that captures had taken place; yet, when we speak of information, there was a letter written by one of the commanders of our vessels, which says, that a number of vessels go there for the purpose of being taken, in order to carry on a trade contrary to the laws of the United States. [The SPEAKER called to order.] Mr. G. said he was about to conclude. He considered this bill as calculated to have but little effect, and had it not been for the arguments of the gentleman from Massachusetts, he should have been at a loss to have known for what reason it was passed. Mr. DANA said, "with what measure you mete, the same shall be measured to you again," was a doctrine long since established. It was a doctrine which injured man had assumed in all countries, and the justice of which had been universally admitted. An appeal to this national sentiment, and to the writers on this subject, would be a sufficient answer to the gentleman's humanity for Frenchmen, to the forgetfulness of his fellow-citizens. The general principles of the law are too just to be questioned. The gentleman from Pennsylvania, well knowing that the national feelings of man must approve of the principle, undertakes to distinguish away the subject. Instead of coming forward to the point, he has gone into complaints against British inhumanity. But why speak of British inhumanity, if not to embarrass this bill? This bill is intended against the French nation. If the gentleman wished a similar law against the British, neither he nor his followers could be suspected of any attachment to that nation, which would have prevented him or them from bringing forward such a measure. The gentleman knew such a measure would be embarrassed with difficulties; and, if it failed, it would deprive him of the argument he now makes use of. Shall we, said Mr. D., because our seamen have been first injured by Great Britain, when France uses them still worse, abandon them? Because they have been once injured with impunity, shall we turn our backs upon them for ever? The doctrine is too inhuman, too absurd, to be countenanced. The gentleman from Pennsylvania assigns another reason against this bill. To make it effectual he says certain information must be given to the PRESIDENT, viz: that the person ill-treated is an American seaman; and that he has received his ill-treatment in pursuance of a decree of the French Government. Has the gentleman to learn that, when the officers of the French Government do an act of violence, which the principles of humanity and the law of nations condemn, if the nation does not punish its officers for the act, it must be done in pursuance of the orders of Government? The gentleman's other objection was honorable to Americans. It was that the humanity of the PRESIDENT, and of the people of this country, would not suffer the law, if passed, to be carried into effect. Mr. D. said it was difficult to reason on this subject, but, admitting the fact, it affords a decisive proof that this power will never be abused, and at the worst, the law could only be ineffectual, and it might have the good effect of preventing the unprincipled murder of our countrymen. The gentleman from Pennsylvania had said that the decree of the British Cabinet might have had some effect in procuring a suspension of the decree of the Executive Directory. [Mr. GALLATIN denied having said that the French Government had suspended their decree on account of the threats of the British. Mr. King's first letter is dated the 27th of November, and his second, mentioning the suspension of the decree, the 28th, so that that was impossible.] The gentleman has taken an opportunity of referring to the note of Lord Grenville. If the gentleman was disposed to make a philippic against Lord Grenville, Mr. D. said, he had no reason to vindicate him; but, when the gentleman went so far beside the question to do it, it showed he had little respect for his audience. But the gentleman from Pennsylvania was certainly incorrect, when he said the note of Lord Grenville was a direct admission that impressed American seamen were held on board the British fleet. He would state a case in which American seamen would be liable to the effects of the French decree, where the British Government could not be censurable. Suppose an American vessel captured and plundered by the French, and some of our seamen, to escape the severities of a French dungeon, had escaped and got on board of a British ship of war, hoping by that means, in time, to get to their own country. Such cases, he had no doubt, had happened, and in such, the gentleman must allow, our citizens must be liable to suffer as pirates, without any blame resting on the conduct of the British. Mr. OTIS said, it had been so long unfashionable to vindicate the conduct of France, or to make apologies in her behalf, that those who now wished to do it, attempt to excite hatred against another nation. The gentleman from Pennsylvania has gone altogether upon this principle. He has said but little against the principle of the bill. His only objection to it was that it was not sufficiently extensive. Admitting the injuries to exist with respect to Great Britain, and that many of our seamen have been impressed by them, did the gentleman wish us to retaliate by impressing British seamen? No, he would be the first to oppose such a law; and yet this is the only just kind of retaliation that could be adopted, for he would not wish us, because the British have impressed our seamen, to put the first British subject we meet to death; and to talk of impressing their seamen, would be perfectly ridiculous. It was not incumbent upon him, Mr. O. said, to enter into any argument to distinguish between the injuries which we have received from the French and British Governments, nor to palliate the conduct of any nation which has done us wrong; but when things perfectly clear are violently distorted, to excite undue prejudices, with a view of diverting the attention of the House from the subject before them, it becomes necessary to notice the attempt. Let it be granted that Great Britain impresses our seamen; she renounces every right to do so. She perseveres, it is true, in her right to reclaim her own seamen from on board our vessels, and in making this claim, some abuses may have taken place. If the gentleman from Pennsylvania had seen fit to do justice to Lord Grenville, he would have turned to another document laid before Congress by the Secretary of State last year, wherein he says that Great Britain had never assumed the principle of impressing American seamen. His friend from South Carolina (Mr. PINCKNEY) affirmed what he said, and showed that the great difficulty was in preventing false passports from being given. This was verified in the conduct of Captain Loring and the Baltimore sloop of war. The difference, Mr. O. said, between the conduct of France and Great Britain towards us was palpable. Great Britain never refused to rectify grievances; she never heaped outrages upon us. If she had, he should have been for vengeance and war against that country, and the cry would certainly have been echoed by the gentleman from Pennsylvania. Mr. O. said he disdained that sort of sensibility which his friend from Connecticut (Mr. DANA) seemed to think redounded to the honor of the people of this country. He owned it would not wound his feelings, in the smallest degree, to see the law of retaliation executed upon any French citizen in America. If one American citizen fell a sacrifice to the decree of France, it would altogether absorb his sympathies for Frenchmen. There is a French citizen, said he, now living in the neighborhood of New York, who originally came here as Ambassador from the French Republic; and I must say that I should not feel the least sensibility if he should fall a victim to this law! Indeed, there were French citizens enough on whom to execute the law; though he joined gentlemen on all sides of the House in hoping that there would be no occasion to carry it into effect. The gentleman from New York says that a law of this kind ought not to be passed, except in time of war; and yet, said Mr. O., the gentleman will not let us go to war, and in the mean time our citizens may suffer with impunity under the bloody decrees of France. But he believed Congress had clearly the power, from those words of the constitution which say, "they shall grant letters of marque and reprisal"--reprisal, doubtless, not only against ships, but against property and persons, to pass a law of this kind. Mr. O. thought it necessary, therefore, to show to the French Republic that we are not negotiating through fear; that we are desirous of keeping peace with all the world, so long as we can do it consistent with our honor and independence; but no longer. Mr. S. SMITH wished to have postponed this bill till the next session. He thought it improper as it originally stood; as the decree which was passed two years ago was never acted upon. Indeed he had somewhere seen that American seamen were released on application of Mr. Skipwith, our Consul in France. The bill, as amended, is far less objectionable, yet he wished it were postponed till next session, because he never wished to see a law of this kind on our code. He agreed with the gentleman from Connecticut that it was legalizing murder. Mr. S. believed the gentleman from Massachusetts mistaken in many respects. He himself believed France was disposed to make peace. Mr. S. proposed an amendment to the bill confining the retaliation to persons captured in pursuance of any of the laws of the United States. If this amendment was agreed to, the bill would be less exceptionable; for, though the gentleman from Massachusetts had said he should not regret the murder of any French citizen, under this law, nothing surely but the heat of argument could have led him to say this; he must own he should: nor did he believe that that gentleman, or any other, could lay hold of an unfortunate Frenchman, and put him to death, though one of our citizens might have suffered unjustly and cruelly in France. The amendment was carried. Mr. MACON did not wish to see this law in our code. In his opinion nothing but the utmost necessity ought to induce us to pass it. Nor could he believe that the gentleman from Massachusetts could see any man, even if taken in arms, put to death in cold blood! Though it might be right to punish those who passed the decree, if they could be laid hold of, it was a mournful thing to retaliate upon innocent persons the offences of the guilty. The gentleman from Connecticut had quoted a scriptural passage--"With the same measure that you mete, the same shall be measured unto you." In the same volume, Mr. M. said, he would also find, "Do unto others as ye would they should do unto you;" and a law of this kind could not be justified upon the latter principle. It is said we ought to show that we do not act from fear. He thought this one of the last measures the House should pass to evince that. Mr. M. hoped, that on the last evening of the session, a bill of this kind would not be pressed. The members had heretofore been accustomed to part in good humor, at the close of the session, however they might have differed in the course of it. He hoped they should not now depart from this custom. He therefore moved to postpone the bill till next session. The question for postponement was negatived--48 to 37. After a few observations from Mr. MCDOWELL, against the bill, it was ordered to be read a third time and passed--yeas 56, nays 30. A motion was made by Mr. LIVINGSTON, to adjourn till ten in the morning, as it would be impossible to get through the business to-night, and he understood the Senate were about to adjourn to that time. Mr. DANA proposed to adjourn till seven in the evening; but that motion being negatived, the House adjourned till ten o'clock on Sunday morning. SUNDAY MORNING, March 3. Several reports were made by the Committee of Enrolment, and sundry messages communicated from the Senate relative to the bills in their passage. _Vote of Thanks._ Mr. CHAMPLIN rose and addressed the House as follows: "Sensible as I am of the importance of the duties that at all times attach to a gentleman who presides over the deliberations of this assembly, and more especially in times of imminent danger; impressed with the able and honorable manner in which those duties have been discharged by the gentleman who now fills the chair; and believing the sentiments I entertain on this occasion to be in perfect unison with those of every member of this House--I beg leave to submit a resolution expressive of the sense of the House on this subject:" He then moved the following resolution: "_Resolved_, That the thanks of this House be presented to Jonathan Dayton, in testimony of their approbation of his conduct in discharging the arduous and important duties assigned him whilst in the chair." This motion was received by the Clerk, and the question being put upon it by him, there appeared for it 40, against it 22. The resolution being carried, the SPEAKER rose and addressed the House as follows: No language, gentlemen, can do justice to those feelings which this second vote of approbation of my conduct, after four years' presidency in the House of Representatives, has excited in my breast. It would be unjust in me not to acknowledge, that to the support uniformly afforded, and to the confidence unremittedly reposed in me, rather than to any merit of my own, is to be ascribed the success with which you are pleased to declare that the duties of the chair have been executed. Permit me to say, that far from being displeased, I have, on the contrary, been very much gratified at hearing that the resolution of thanks has not been passed, as a mere matter of form, unanimously. As in all public bodies, there have ever been found men whose approbation must be considered by the meritorious as a censure, so in this body, there are, unhappily, some whose censure will be regarded by all whose esteem I value, as the highest testimony of merit. About to abandon the seat which I have held in this branch of the General Legislature for eight successive years, I take advantage of the moment which precedes our separation to bid you, gentlemen, an affectionate farewell. Mr. MACON moved the usual resolution appointing a joint committee with the Senate, to inform the PRESIDENT, that Congress is ready to adjourn without day, unless he has any further communication to make them; which being agreed to, Messrs. OTIS, MACON, and BROOKS, were appointed a committee on the part of this House. Mr. OTIS, from the committee appointed to wait upon the PRESIDENT, informed the House that they had performed that service; and he informed them "that he had no further communication to make, except to express his wish for the health and happiness of the members, and a pleasant journey home to their families and friends." The SPEAKER then adjourned the House without day. NOTE. The fifth Congress, the first under the administration of Mr. John Adams, was wholly occupied with measures of defence against France, and incurred debt and taxes in these preparations which greatly impaired its popularity, and contributed to the overthrow of the federal party: but there was great necessity for these exertions at that time, and both national honor, and national interest, and national safety required them to be made. Besides the insults which went to our honor, and the depredations which affected our commerce, there were threats of attack and invasion not to be despised. The Directory, inflated with the successes of Buonaparte in Italy, with the subjugation of several small powers, the transformation of several principalities and kingdoms into republics, the peace with the Emperor of Germany, the neutralization of some kingdoms and the alliance of others: exalted with so much success, and anxious to bring the United States into their system and especially into the war with Great Britain, had recourse to all the means of accomplishing its purpose--first, by entreaties; afterwards by insults and outrages; and finally by threats of war. It is difficult for general history to give a view of these proceedings, and it is only in contemporary sources that they can be adequately studied. The Debates of Congress are one, and the largest one, of these sources; documents on which the debates are founded are another: and it is often desirable, in after time, to produce these documents in greater extent than used in the debate. That is the case with these debates on French affairs during the time of which we speak, and the communications of our Ministers sent to Paris furnish the documentary evidence necessary to complete them--evidence too well known to require copious quotation at the time, but now little known to the subsequent generation. This note then, in the nature of an appendix to the debates of the fifth Congress, will contain extracts from the dispatches of the Ministers of that day: and first of General Pinckney. Arriving at Paris the 5th of December 1796, he immediately waited on the Minister of Exterior Relations (Citizen Charles De la Croix) in company with Mr. Monroe, according to an appointment previously made, and had an interview with him; of which he gives this account in a dispatch to Mr. Pickering, Secretary of State: (_Extracts only are given._) Mr. Monroe and myself, with my secretary, Major Rutledge, about two o'clock, waited upon M. De la Croix, and I was introduced by Mr. Monroe as the person appointed as his successor. The Minister at first received us with great stiffness, but afterwards, on our conversing on some general subjects, he unbent and behaved with civility; and, on receiving the official copies of our letter of credence and recall, said he would deliver them, without delay, to the Directory. He desired Major Rutledge to let him have our names of baptism, and our ages, that cards of hospitality might be made out, which he said were necessary to reside here unmolested. This requisition was immediately complied with, and he promised to send the cards the next morning. When this interview was known, the reports which had been spread abroad before my arrival, of my not being received by the Directory, vanished, and the general idea seemed to be that there would be no objection to receive me as Minister from America. At 11 o'clock, on Monday, December 12, Mr. Prevost (Mr. Monroe's secretary) called upon me, and told me that Mr. Monroe had just received a letter from M. De la Croix, and desired to know if I had received one. I said no. He then showed me M. De la Croix's to Mr. Monroe, which was as follows: [_Date, Dec. 9._ CITIZEN MINISTER: I hasten to lay before the Executive Directory the copies of your letters of recall, and of the letter of credence of Mr. Pinckney, whom the PRESIDENT OF THE UNITED STATES has appointed to succeed you, in the quality of Minister Plenipotentiary of the United States near the French Republic. The Directory has charged me to notify you "that it will not acknowledge nor receive another Minister Plenipotentiary from the United States, until after the redress of the grievances demanded of the American Government, and which the French Republic has a right to expect from it." [_Date, Dec. 11._ I waited until next morning, expecting to receive a notification from M. De la Croix, when, not hearing from him, I wrote him the following letter: CITIZEN MINISTER: Colonel Monroe has been so good as to communicate to me your letter to him of the 21st Frimaire, wherein you inform him that you had submitted to the Executive Directory his letters of recall, and my letters of credence as Minister Plenipotentiary from the United States of America, and that the Directory had instructed you to notify him "qu'il ne reconnoitra et ne recevra plus de Ministre Plenipotentiaire des Etats Unis jusqu'après le redressement des griefs demandé au Gouvernement Americain, et que la République Françoise est en droit d'en attendre." [That it will not acknowledge nor receive any Minister Plenipotentiary from the United States, until after the redress of the grievances demanded of the American Government, and which the French Republic has a right to expect from it.] This communication has filled me with real sorrow, as I am thoroughly convinced that the sentiments of America and its Government--for they are one--are misunderstood, and that I am not permitted even to attempt to explain them, or, in the terms of my letters of credence, to endeavor "to efface unfavorable impressions, to banish suspicions, and to restore that cordiality which was at once the evidence and pledge of a friendly union." Devoted, as I am, to the liberty, prosperity, and independence of my own country, the freedom, happiness, and perfect establishment of the French Republic, have always been dear to me, and to have been instrumental in cementing the good understanding which, from the commencement of their alliance, has subsisted between the two nations, would have been the height of my ambition. I most fervently pray that there may be a speedy and candid investigation of those points in which you differ from us, that affection may banish distrust, and that the alliance of the two Republics may be perpetual. In your letter to Colonel Monroe you do not desire him to make any communication to me, and I am indebted to his politeness for the knowledge I have of the intentions of the Directory. I submit to you, citizen Minister, that, as the letters of recall had been received by Mr. Monroe, and official copies of his letters of recall, and my letters of credence, had been delivered to you, that the sentiments of the Directory should be communicated by you immediately to me, that I may, without delay, transmit them as from the Executive of this Republic to the Government of the United States; and that I may be informed by you, whether it is the intention of the Directory that I should immediately quit the territories of the Republic, or whether I and my family may remain until I hear from my Government. As I have not received the cards which, in your interview, you said I ought to possess in order to enable me to reside here, and that they should be transmitted to me next morning, I am the more doubtful on this subject than I should otherwise be. Accept my best wishes. [_Dec. 13._ This letter I sent by Major Rutledge, who delivered it to M. De la Croix, and made the following report of what passed between them, which he immediately reduced to writing: "I this day waited upon M. De la Croix, the Minister for Foreign Affairs, at two o'clock, as bearer of a letter from General Pinckney. I was admitted immediately on sending in my name, and delivered the letter. Having informed him from whom it came, and that there was a French translation annexed, he opened it and proceeded to read the letter in my presence, which, when he had finished, he desired me to return to General Pinckney as his answer: That the Executive Directory knew of no Minister Plenipotentiary from the United States of America, since the presentation of Mr. Monroe's letters of recall, and that the Executive Directory had charged him to notify to Mr. Monroe (here he read the quotation contained in the letter) qu'il ne reconnoitra et ne recevra plus de Ministre Plenipotentiaire des Etats Unis, jusqu'après le redressement des griefs demandé au Gouvernement Americain, et que la République Françoise est en droit d'en attendre. Which notification the Directory relied upon Mr. Monroe's imparting to his own Government, as well as communicating to General Pinckney." On the 25th of Frimaire, (15th of December,) about three o'clock in the afternoon, a Mr. Giraudet called on me, and said he was chief secretary in the Department of Foreign Affairs; that he came on the part of the Minister of Foreign Affairs, to signify to me that, with respect to my letter to him, (which he produced, together with the translation,) he could not directly communicate with me on it, as such direct communication would be acknowledging me as Minister, when the Directory had determined not to receive me; that, as to the other part of my letter, relative to remaining here, that he supposed I was acquainted with the laws of France, as they applied to strangers. I told him that I was not acquainted with the local laws of the Republic; he said that there was a decree which prevented all foreigners from remaining at Paris without particular permission, which, as the Directory did not mean to grant to me, of course the general law would operate. I answered, that I could not conceive the having a direct communication with me would involve the consequences he stated; that if Mr. Monroe had died before my arrival, the information that they would not acknowledge me, must, of course, have been made to myself. Mr. Monroe having received his letter of recall from our Government, could not now act officially any more than if he had ceased to exist; that I was indebted to Mr. Monroe's politeness for the information I had received of the intention of the Directory not to acknowledge me, but that he had not intended it as an official communication. That, with regard to the laws of France relative to strangers, the law which he had cited did not apply to the requisition of my letter, which was to know whether it was the intention of the Directory that I should quit the territories of the Republic; or whether I might remain here until I should hear from my Government. He said he rather believed that it was the intention that I should quit the territories of the Republic; but, as it admitted of a doubt, he would mention it to the Minister, with whom he was to dine, and acquaint me with the result in the evening. I told him I should be obliged to him, should it be the intention of the Directory that I should quit the Republic, to inform me in what time I was to set out, as my baggage was not arrived from Bordeaux; that I meant not to ask any personal favor, but to have the intention of the Directory clearly expressed, as it related to me, in the situation in which I came to France. He said he would, and expressed a regret at being the bearer of disagreeable information, and then departed. His behavior and manners were very polite. In the evening, about eight o'clock, he returned, and informed me that, in answer to the doubt which had been entertained in the morning, (a doubt, he observed, which had proceeded from his own inattention to the words of M. De la Croix,) the Minister could only reply that he understood the Directory to mean the territory of the Republic, and not Paris alone, which was to be quitted; that as to the time in which it was necessary to depart, the Minister could not designate it, but that he would have another communication with the Directory, and that their intentions should be made known to me in a more explicit manner upon both points; that, at the same time, he must inform me that, in all probability, M. De la Croix would not be the organ through which they would be addressed, as the Minister of the _Police Générale_ would be the officer under whose department my case would come. I replied that I apprehended M. De la Croix was the proper organ through which information should come to me, as he knew the capacity in which I had come to France; whereas, the Minister of Police might regard me as a mere stranger, and throw me into confinement; that it was in the power of the Directory to receive me, or not: but they could not divest themselves of the knowledge which they had of the public character in which I came to France; and that, in that character, I was entitled to the protection of the laws of nations, whether the Directory received me or not. If they permitted me to remain until I heard from my Government, I was under the protection of those laws; if they ordered me to quit the territories of the Republic, I was still entitled to letters of safe conduct, and passports on my journey out; that this was the case even with Ministers of belligerent powers, much more ought it to apply between us, who were at peace. Since this conversation, I have not heard from the Directory, or any of the Ministers or their agents. My situation, as you may easily conceive, is unpleasant; but if I can ultimately render any services to my country, I shall be fully compensated: at all events, it shall be my study to avoid increasing the discontent of this Government, without committing the honor, dignity, and respect due to our own. Should I fail in doing this, or should I err in the measures I pursue to accomplish it, the failing will not be in my zeal, but should be charged to my want of ability. At present, I think the ground I have taken has puzzled them: they wish me gone, but they apprehend that it would be too harsh a measure to send off, in a peremptory manner, the Minister of my country; though there is no saying what their conduct will ultimately be, as I am informed that they have already sent off thirteen foreign Ministers: and a late emigrant, now here, has assured them that America is not of greater consequence to them, nor ought to be treated with greater respect, than Geneva or Genoa. Those who regard us as being of some consequence, seem to have taken up an idea that our Government acts upon principles opposed to the real sentiments of a large majority of our people, and they are willing to temporize until the event of the election of President is known; thinking that, if one public character is chosen, he will be attached to the interest of Great Britain; and that, if another character is elected, he will be (to use the expression of Du Pont de Nemours, in the Council of Ancients) devoted to the interest of France; entertaining the humiliating idea that we are a people divided by party, the mere creatures of foreign influence, and regardless of our national character, honor, and interest. I have seen Mr. Monroe very often since my arrival: his conduct has been open and candid, and I believe he has made me every communication which he thought would be of service to our country. He undoubtedly felt himself hurt at his being superseded; but I am convinced he has not, on that account, left any thing undone which he thought would promote the objects of my mission. The Directory and Ministers had, for some time before they were informed of his removal, treated him with great coolness; but as soon as they heard of his recall, their attentions to him were renewed. Should this Government attempt to make any further communications to me, through him, he has promised me to inform them that he cannot comply with their desire, as his powers have ceased. I remain, with great respect, &c. [_Dec. 15._ Major Rutledge having called on the Minister of Exterior Relations on another affair, and finished, inquired of the Minister if he had heard any thing further from the Directory, in relation to General Pinckney's remaining where he was: "He answered, with marks of great surprise, that he thought he had already explained himself with sufficient clearness on the subject; that he had signified to General Pinckney, long since, the impossibility of his staying; that he thought he had exercised much "condescendance" in having been so long silent; which he had been induced to do by General Pinckney's having complained of the delay of his baggage, which, he supposed, must, by this time, have arrived from Bordeaux; that, in short, he should be sorry if his further stay should compel him to give information to the Minister of the Police. To this I replied, that General Pinckney had refused to regard himself in any other light than the one in which he had entered France, which had not been in a private capacity, but in a public character; which circumstance had been officially announced to the Directory, by his having delivered to the Minister of Foreign Affairs a copy of his letters of credence and by other acts. That this precluded all laws relative to strangers from operating on him, and put him under the protection of the law of nations, which he claimed in his favor. That Mr. Giraudet had taken leave with a promise to communicate to the Minister of Foreign Affairs the ground which General Pinckney had taken. That he returned again in the evening, and then said, that the Minister would again lay General Pinckney's letter before the Directory, and that their intentions should be made known to him as soon as possible. All this had, no doubt, been faithfully related to him by his secretary. He answered that General Pinckney must have mistaken Mr. Giraudet as to his intention of again laying his letter before the Directory. I told him that it was impossible; for that I had been present at both conversations, in which the material points had passed in English, and been repeated in French. He then said Mr. Giraudet had acted without his authority. I replied, that General Pinckney had, however, waited until this moment in expectation of hearing from him, agreeably to Mr. Giraudet's promise; that he was very far from intending to dispute the will of the Executive Directory; what he wanted was a communication of their wishes in writing. He said that it had already been given. I desired to know when; he answered in the notification which he had made, by their order, to Mr. Monroe; that it had contained their sentiments on Mr. Pinckney's staying, inasmuch as that his not being received, implied that he should depart. I denied that it was a fair deduction; he insisted that it was; I declared that it had not struck General Pinckney or any person with whom he had conversed; but that, however, if such was the construction which he had put upon it, I flattered myself that he could have no objection to throwing his idea upon paper, that General Pinckney might have something more substantial, than the authenticity of the word of his secretary to justify himself to his own Government, for quitting a spot to which he had come in obedience to their orders. The Minister here turned from me with some warmth, and said that he should do no such thing; that General Pinckney might make his own deductions; he desired to have no more communication with him. I only replied by a bow, satisfied to end a conversation which had already lasted near half an hour; during which I had not been admitted to the honor of a seat." [_Dec. 26._ The written order to quit the territory of the Republic did not come: General Pinckney would not depart without it: the _Police Générale_ did not molest him; two months elapsed, when Buonaparte having gained a great victory over the Austrians in Italy, the day after the arrival of the news of it in Paris, he received the following notification from the Minister, De la Croix: "The Executive Directory has charged me to make known to you, that not having obtained special permission to reside at Paris, you are amenable to the law which obliges foreigners to quit the territory of the Republic. I had the honor of informing you near two months ago, by the principal Secretary of my department, of the intentions of the Government in this respect. I cannot dispense with notifying you of them to-day. Receive, sir, &c." [_Feb. 1, 1797._ To which General Pinckney immediately returned this answer: CITIZEN MINISTER: I did not receive, until 3 o'clock to-day, your note in date of the 6th inst., informing me that the Directory had charged you to acquaint me, that not having obtained particular permission to reside at Paris, I was subject to the law which obliged strangers to quit the territory of the Republic. I intimated to you some time since, by the Secretary General of your department, and by Major Rutledge, my Secretary, that I deemed a notification of this sort, in writing, from you necessary, previous to my departure. Having now received it, I shall, without delay, prepare to go, and, in the meanwhile, will be obliged to you for the necessary passports for myself and family, with our baggage, to quit the Republic, in my way to Holland. Accept, citizen Minister, &c. This notification was addressed to "_Mr. Pinckney, Anglo-American_," upon which designation of his nationality, and the supposed motives for giving the order to depart so suddenly after having been so long delayed, General Pinckney remarks: I should have made some observation on being termed Anglo-American, but, on inquiry, I found it was customary to call all my countrymen so, to distinguish us from the inhabitants of St. Domingo and the other French West India islands. I have received my passports, and shall, in two days, set out for Amsterdam. I know not what has occasioned this determination of the Directory after having permitted me to remain here so long a time from their refusal to acknowledge me. You will judge whether the answer of the Senate and the House of Representatives to the President's Speech, and the late successes in Italy have not concurred to occasion it. Mr. De la Croix assured Major Rutledge, that he acted by the express orders of the Directory in this particular, and not from himself. General Pinckney remained in Holland till the autumn of '97, when _Messrs._ Marshall and Gerry were joined with him in an extraordinary mission, and all three proceeded to Paris. Arrived there, they asked an interview with the Minister of Foreign Relations, now changed to the astute and supple Talleyrand--obtained it--and thus describe it in their dispatch to Mr. Pickering, the Secretary of State: The Minister, we found, was then engaged with the Portuguese Minister, who retired in about ten minutes, when we were introduced and produced the copy of our letters of credence, which the Minister perused and kept. He informed us "that the Directory had required him to make a report relative to the situation of the United States with regard to France, which he was then about, and which would be finished in a few days, when he would let us know what steps were to follow." We asked if cards of hospitality were in the mean time necessary? He said they were, and that they should be delivered to us; and he immediately rung for his secretary and directed him to make them out. This interview with Talleyrand being over, a game of intrigue, impudence, venality and corruption was immediately commenced upon the American Ministers, by the intimates and agents of Talleyrand, which has but few parallels in history, and of which they give this account: On Saturday, the 14th, Major Mountflorence (U. S. Consul General in Paris,) informed General Pinckney that he had a conversation with Mr. Osmond, the private and confidential secretary of the Minister of Foreign Affairs, who told him that the Directory were greatly exasperated at some parts of the President's Speech at the opening of the last session of Congress, and would require an explanation of them from us. The particular parts were not mentioned. In another conversation on the same day, the secretary informed the Major that the Minister had told him it was probable we should not have a public audience of the Directory till such time as our negotiation was finished; that probably persons might be appointed to treat with us, but they would report to him, and he would have the direction of the negotiation. The Major did not conceal from Mr. Osmond his intention to communicate these conversations to us. In the morning of October the 13th, Mr. W., of the house of ----, called on General Pinckney and informed him that a Mr. X., who was in Paris, and whom the General had seen, * * * * was a gentleman of considerable credit and reputation, * * * * and that we might place great reliance on him. In the evening of the same day, Mr. X. called on General Pinckney, and after having sat some time, * * * * whispered him that he had a message from M. Talleyrand to communicate when he was at leisure. General Pinckney immediately withdrew with him into another room; and when they were alone, Mr. X. said that he was charged with a business in which he was a novice; that he had been acquainted with M. Talleyrand, * * * * and that he was sure he had a great regard for [America] and its citizens; and was very desirous that a reconciliation should be brought about with France; that, to effect that end, he was ready, if it was thought proper, to suggest a plan, confidentially, that M. Talleyrand expected would answer the purpose. General Pinckney said he should be glad to hear it. Mr. X. replied that the Directory, and particularly two of the members of it, were exceedingly irritated at some passages of the President's Speech, and desired that they should be softened, and that this step would be necessary previous to our reception. That, besides this, a sum of money was required for the pocket of the Directory and Ministers, which would be at the disposal of M. Talleyrand; and that a loan would also be insisted on. M. X. said if we acceded to these measures, M. Talleyrand had no doubt that all our differences with France might be accommodated. On inquiry, M. X. could not point out the particular passages of the speech that had given offence, nor the quantum of the loan, but mentioned that the douceur for the pocket, was twelve hundred thousand livres, about fifty thousand pounds sterling. General Pinckney told him, that his colleagues and himself, from the time of their arrival here, had been treated with great slight and disrespect; that they earnestly wished for peace and reconciliation with France; and had been entrusted by their country with very great powers to obtain these ends on honorable terms; that, with regard to the propositions made, he could not even consider of them before he had communicated them to his colleagues; that, after he had done so, he should hear from him. After a communication and consultation had, it was agreed that General Pinckney should call on M. X. and request him to make his propositions to us all: and, for fear of mistake or misapprehension, that he should be requested to reduce the heads into writing. Accordingly, on the morning of October 19, General Pinckney called on M. X., who consented to see his colleagues in the evening, and to reduce his propositions to writing. He said his communication was not immediately with M. Talleyrand, but through another gentleman in whom M. Talleyrand had great confidence. This proved afterwards to be M. Y. At six in the evening, M. X. came and left with us the first set of propositions, which, translated from the French, are as follows: "A person who possesses the confidence of the Directory, on what relates to the affairs of America, convinced of the mutual advantages which would result from the re-establishment of the good understanding between the two nations, proposes to employ all of his influence to obtain this object. He will assist the Commissioners of the United States in all the demands which they may have to make from the Government of France, inasmuch as they may not be contradictory to those which he proposes himself to make, and of which the principal will be communicated confidentially. It is desired that, in the official communications, there should be given a softening turn to a part of the President's Speech to Congress, which has caused much irritation. It is feared, that in not satisfying certain individuals in this respect, they may give way to all their resentment. The nomination of Commissioners will be consented to on the same footing as they have been named in the treaty of America with England, to decide on the reclamations which individuals may make on the Government of France, or on French individuals. The payments which, agreeably to the decisions of the Commissioners, shall fall to the share of the French Government, are to be advanced by the American Government itself. It is desired that the funds which, by this means, shall enter again into the American trade, should be employed in new supplies for the French colonies. Engagements of this nature, on the part of individuals reclaiming, will always hasten, in all probability, the decisions of the French Commissioners; and, perhaps, it may be desired that this clause should make a part of the instructions which the Government of the United States should give to the Commissioners they may choose. The French Government desires, besides, to obtain a loan from the United States; but so that that should not give any jealousy to the English Government nor hurt the neutrality of the United States. This loan shall be masked by stipulating, that the Government of the United States consents to make the advances for the payment of the debts contracted by the agents of the French Government with the citizens of the United States, and which are already acknowledged, and the payment ordered by the Directory, without having been yet effectuated. There should be delivered a note to the amount of these debts. Probably this note may be accompanied by ostensible pieces, which will guarantee to the agents the responsibility of the United States, in case any umbrage should cause an inquiry. There shall also be first taken from this loan certain sums for the purpose of making the customary distributions in diplomatic affairs." The person of note mentioned in the minutes, who had the confidence of the Directory, he said, before us all, was M. Talleyrand. The amount of the loan he could not ascertain precisely, but understood it would be according to our ability to pay. The sum which would be considered as proper, according to diplomatic usage, was about twelve hundred thousand livres. He could not state to us what parts of the President's speech were excepted to, but said he would inquire and inform us. He agreed to breakfast with Mr. Gerry the morning of the 21st, in order to make such explanations as we had then requested, or should think proper to request; but, on the morning of the 20th, M. X. called, and said that M. Y., the confidential friend of M. Talleyrand, instead of communicating with us through M. X., would see us himself and make the necessary explanations. We appointed to meet him the evening of the 20th at seven o'clock, in General Marshall's room. At seven, M. Y. and M. X. entered; and the first mentioned gentleman, being introduced to us as the confidential friend of M. Talleyrand, immediately stated to us the favorable impression of that gentleman towards our country--impressions which were made by the kindness and civilities he had personally received in America. That, impressed by his solicitude to repay these kindnesses, he was willing to aid us in the present negotiation by his good offices with the Directory, who were, he said, extremely irritated against the Government of the United States, on account of some parts of the President's speech, and who had neither acknowledged nor received us, and consequently have not authorized M. Talleyrand to have any communications with us. The minister therefore could not see us himself, but had authorized his friend M. Y. to communicate to us certain propositions, and to receive our answers to them; and to promise, on his part, that if we would engage to consider them as the basis of the proposed negotiation, he would intercede with the Directory to acknowledge us, and to give us a public audience. M. Y. stated to us explicitly and repeatedly, that he was clothed with no authority; that he was not a diplomatic character; that he was not * * * * he was only the friend of M. Talleyrand, and trusted by him: that, with regard to himself, he had * * * and he earnestly wished well to the United States. On reading the speech (Mr. Adams' to Congress,) M. Y. dilated very much upon the keenness of the resentment it had produced, and expatiated largely on the satisfaction he said was indispensably necessary as a preliminary to negotiation. "But, said he, gentlemen, I will not disguise from you that this satisfaction being made, the essential part of the treaty remains to be adjusted; il faut de l'argent--il faut beaucoup d'argent;" _you must pay money, you must pay a great deal of money_. He spoke much of the force, the honor, and the jealous republican pride of France; and represented to us strongly the advantage which we should derive from the neutrality thus to be purchased. He said that the receipt of the money might be so disguised as to prevent its being considered as a breach of neutrality by England; and thus save us from being embroiled with that power. Concerning the twelve hundred thousand livres little was said; that being completely understood, on all sides, to be required for the officers of the Government, and, therefore, needing no further explanation. These propositions, he said, being considered as the admitted basis of the proposed treaty, M. Talleyrand trusted that, by his influence with the Directory, he could prevail on the Government to receive us. We asked whether we were to consider it as certain, that, without a previous stipulation to the effect required, we were not to be received. He answered that M. Talleyrand himself was not authorized to speak to us the will of the Directory, and consequently could not authorize him. The conversation continued until half after nine, when they left us; having engaged to breakfast with Mr. Gerry the next morning. October the 21st, M. X. came before nine o'clock; M. Y. did not come until ten: he had passed the morning with M. Talleyrand. After breakfast the subject was immediately resumed. He represented to us, that we were not yet acknowledged or received; that the Directory were so exasperated against the United States, as to have come to a determination to demand from us, previous to our reception, those disavowals, reparations, and explanations, which were stated at large last evening. He said that M. Talleyrand and himself were extremely sensible of the pain we must feel in complying with this demand; but that the Directory would not dispense with it; that, therefore, we must consider it as the indispensable preliminary to obtain our reception, unless we could find the means to change their determination in this particular; that if we satisfied the Directory in these particulars, a letter would be written to us to demand the extent of our powers, and to know whether we were authorized to place them precisely on the same footing with England. We required an explanation of that part of the conversation, in which M. Y. had hinted at our finding means to avert the demand concerning the President's speech. He answered, that he was not authorized to state those means, but that we must search for them and propose them ourselves. If, however, we asked his opinion as a private individual, and would receive it as coming from him, he would suggest to us the means which, in his opinion, would succeed. On being asked to suggest the means, he answered, _money_; that the Directory were jealous of its own honor and of the honor of the nation; that it insisted on receiving from us the same respect with which we had treated the King; that this honor must be maintained in the manner before required, unless we substituted, in the place of these reparations, something, perhaps more valuable, that was money. He said, further, that if we desired him to point out the sum, which he believed would be satisfactory, he would do so. We requested him to proceed; and he said that there were thirty-two millions of florins, of Dutch inscriptions, worth ten shillings in the pound, which might be assigned to us at twenty shillings in the pound; and he proceeded to state to us the certainty that, after a peace, the Dutch Government would repay us the money; so that we should ultimately lose nothing, and the only operation of the measure would be, an advance from us to France of thirty-two millions, on the credit of the Government of Holland. We asked him whether the fifty thousand pounds sterling as a _douceur_ to the Directory, must be in addition to this sum. He answered in the affirmative. We told him that, on the subject of the treaty, we had no hesitation in saying that our powers were ample; that, on the other points proposed to us, we would retire into another room, and return in a few minutes with our answer. We committed immediately to writing the answer we proposed, in the following words: "Our powers respecting a treaty are ample; but the proposition of a loan, in the form of Dutch inscriptions, or in any other form, is not within the limits of our instructions; upon this point, therefore, the Government must be consulted; one of the American Ministers will, for the purpose, forthwith embark for America; provided the Directory will suspend all further captures on American vessels; and will suspend proceedings on those already captured, as well where they have been already condemned, as where the decisions have not yet been rendered; and that where sales have been made, but the money not yet received by the captors, it shall not be paid until the preliminary questions, proposed to the Ministers of the United States, be discussed and decided;" which was read as a verbal answer, and we told them they might copy it if they pleased. M. Y. refused to do so; his disappointment was apparent; he said we treated the money part of the proposition as if it had proceeded from the Directory; whereas, in fact, it did not proceed even from the Minister, but was only a suggestion from himself, as a substitute to be proposed by us, in order to avoid the painful acknowledgment that the Directory had determined to demand of us. It was told him that we understood that matter perfectly; that we knew the proposition was in form to be ours; but that it came substantially from the Minister. We asked what had led to our present conversation? And General Pinckney then repeated the first communication from M. X., (to the whole of which that gentleman assented,) and we observed that those gentlemen had brought no testimonials of their speaking any thing from authority; but that, relying on the fair characters they bore, we had believed them when they said they were from the Minister, and had conversed with them, in like manner, as if we were conversing with M. Talleyrand himself; and that we could not consider any suggestion M. Y. had made as not having been previously approved of; but yet, if he did not choose to take a memorandum in writing of our answer, we had no wish that he should do so; and further, if he chose to give the answer to his proposition the form of a proposition from ourselves, we could only tell him that we had no other proposition to make, relative to any advance of money on our part; that America had sustained deep and heavy losses by the French depredations on our commerce, and that France had alleged so [many] complaints against the United States, that on those subjects we came fully prepared, and were not a little surprised to find France unwilling to hear us; and making demands upon us which could never have been suspected by our Government, and which had the appearance of our being the aggressing party. M. Y. expressed himself vehemently on the resentment of France; and complained that, instead of our proposing some substitute for the reparations demanded of us, we were stipulating certain conditions to be performed by the Directory itself; that he could not take charge of such propositions; and that the Directory would persist in its demand of those reparations which he at first stated. We answered that we could not help it; it was for the Directory to determine what course its own honor and the interests of France required it to pursue; it was for us to guard the interest and honor of our country. M. Y. observed that we had taken no notice of the first proposition, which was to know whether we were ready to make the disavowal, reparations, and explanations, concerning the President's speech. We told him that we supposed it to be impossible that either he, or the Minister, could imagine that such a proposition could require an answer; that we did not understand it as being seriously expected; but merely as introductory to the subjects of real consideration. He spoke of the respect which the Directory required, and repeated that it would exact as much as was paid to the ancient kings. We answered that America had demonstrated to the world, and especially to France, a much greater respect for her present Government than for her former monarchy: and that there was no evidence of this disposition which ought to be required, that we were not ready to give. He said that we should certainly not be received; and seemed to shudder at the consequences. We told him, that America had made every possible effort to remain on friendly terms with France--that she was still making them, that if France would not hear us, but would make war on the United States, nothing remained for us but to regret the unavoidable necessity of defending ourselves. [_Oct. 22._ No. 2. OCTOBER 27, 1797. About twelve we received another visit from M. X. He immediately mentioned the great event announced in the papers, and then said, that some proposals from us had been expected on the subject on which we had before conversed: that the Directory were becoming impatient, and would take a decided course with regard to America, if we could not soften them. We answered, that on that subject we had already spoken explicitly, and had nothing further to add. He mentioned the change in the state of things which had been produced by the peace with the Emperor, as warranting an expectation of a change in our system; to which we only replied, that this event had been expected by us, and would not, in any degree, affect our conduct. M. X. urged, that the Directory had, since this peace, taken a higher and more decided tone with respect to us, and all other neutral nations, than had been before taken; that it had been determined, that all nations should aid them, or be considered and treated as their enemies. We answered, that such an effect had already been contemplated by us, as probable, and had not been overlooked when we gave to this proposition our decided answer; and further, that we had no powers to negotiate for a loan of money; that our Government had not contemplated such a circumstance in any degree whatever; that if we should stipulate a loan, it would be a perfectly void thing, and would only deceive France, and expose ourselves. M. X. again expatiated on the power and violence of France; he urged the danger of our situation, and pressed the policy of softening them, and of thereby obtaining time. M. X. again returned to the subject of money. Said he, you do not speak to the point; it is money: it is expected that you will offer money. We said that we had spoken to that point very explicitly: we had given an answer. No, said he, you have not: what is your answer? We replied, it is no; no; not a sixpence. He again called our attention to the dangers which threatened our country, and asked, if it would not be prudent, though we might not make a loan to the nation, to interest an influential friend in our favor. He said we ought to consider what men we had to treat with; that they disregarded the justice of our claims, and the reasoning with which we might support them; that they disregarded their own colonies, and considered themselves as perfectly invulnerable with respect to us; that we could only acquire an interest among them by a judicious application of money, and it was for us to consider, whether the situation of our country did not require that these means should be resorted to. He said that all the members of the Directory were not disposed to receive our money; that Merlin, for instance, was paid from another quarter, and would touch no part of the douceur which was to come from us. We replied, that we had understood that Merlin was paid by the owners of the privateers; and he nodded an assent to the fact. He proceeded to press this subject with vast perseverance. He told us that we had paid money to obtain peace with the Algerines and with the Indians; and that it was doing no more to pay France for peace. To this it was answered, that when our Government commenced a treaty with either Algiers or the Indian tribes, it was understood that money was to form the basis of the treaty, and was its essential article; that the whole nation knew it, and was prepared to expect it as a thing of course; but that in treating with France, our Government had supposed that a proposition, such as he spoke of, would, if made by us, give mortal offence. He asked if our Government did not know that nothing was to be obtained here without money? We replied, that our Government had not even suspected such a state of things. He appeared surprised at it, and said, that there was not an American in Paris who could not have given that information. The conversation continued for nearly two hours; and the public and private advance of money was pressed and re-pressed in a variety of forms. At length M. X. said that he did not blame us; that our determination was certainly proper, if we could keep it; but he showed decidedly his opinion to be that we could not keep it. He said that he would communicate, as nearly as he could, our conversation to the Minister, or to M. Y. to be given by him to the Minister; we are not certain which. We then separated. On the 22d of October, M. Z., a French gentleman of respectable character, informed Mr. Gerry, that M. Talleyrand, Minister of Foreign Relations, who professed to be well-disposed towards the United States, had expected to have seen the American Ministers frequently in their private capacities; and to have conferred with them individually on the object of their mission; and had authorized M. Z. to make this communication to Mr. Gerry. The latter sent for his colleagues; and a conference was held with M. Z. on the subject; in which General Pinckney and General Marshall expressed their opinions, that, not being acquainted with M. Talleyrand, they could not, with propriety, call on him; but that, according to the custom of France, he might expect this of Mr. Gerry, from a previous acquaintance in America. This Mr. Gerry reluctantly complied with on the 23d, and with M. Z. called on M. Talleyrand, who, not being then at his office, appointed the 28th for the interview. After the first introduction, M. Talleyrand began the conference. He said that the Directory had passed an arrêt, which he offered for perusal, in which they had demanded of the Envoys an explanation of some part, and a reparation for others, of the President's speech to Congress, of the 16th of May: he was sensible, he said, that difficulties would exist on the part of the Envoys relative to this demand; but that by their offering money, he thought he could prevent the effect of the arrêt. M. Z., at the request of Mr. Gerry, having stated that the Envoys have no such powers, M. Talleyrand replied, they can, in such a case, take a power on themselves; and proposed that they should make a loan. A courier arriving at this moment from Italy, and M. Talleyrand appearing impatient to read the letters, Mr. Gerry took leave of him immediately. He followed to the door, and desired M. Z. to repeat to Mr. Gerry what he, M. Talleyrand, had said to him. Mr. Gerry then returned to his quarters with M. Z., took down the particulars of this interview, as before stated, sent for Gens. Pinckney and Marshall, and read it to them in the presence of M. Z., who confirmed it. Generals Pinckney and Marshall then desired M. Z. to inform M. Talleyrand that they had nothing to add to this conference, and did not wish that the arrêt might be delayed on their account. OCTOBER 29. M. X. again called upon us. He said M. Talleyrand was extremely anxious to be of service to us, and had requested that one more effort should be made to induce us to enable him to be so. A great deal of the same conversation which had passed at our former interviews was repeated. He said that, without this money, we should be obliged to quit Paris; and that we ought to consider the consequences: the property of the Americans would be confiscated, and their vessels in port embargoed. We told him that, unless there was a hope of a real reconciliation, these evils could not be prevented by us; and the little delay that we might obtain would only increase them; that our mission had induced many of our countrymen to trust their vessels in the ports of France; and if we remained at Paris, that very circumstance would increase their number; and, consequently, the injury which our countrymen would sustain, if France could permit herself so to violate her own engagements and the laws of nations. He expressed a wish, that M. Y. should see us once more. We told him that a visit from M. Y., as a private gentleman, would always be agreeable to us; but if he came only with the expectation that we should stipulate advances of money, without previously establishing a solid and permanent reconciliation, he might save himself the trouble of the application, because it was a subject we had considered maturely, and on which we were immovable. He parted with us, saying, if that was the case, it would not be worth while for M. Y. to come. In the evening, while General Pinckney and General Marshall were absent, M. Y. and M. X. called, and were invited by Mr. Gerry to breakfast with us the next morning. OCTOBER 30. Immediately after breakfast the subject was resumed. M. Y. spoke without interruption for near an hour. He said that he was desirous of making a last effort to serve us, by proposing something which might accommodate the differences between the two nations; that what he was now about to mention, had not, by any means, the approbation of the Directory; nor could M. Talleyrand undertake further than to make from us the proposition to the Directory, and use his influence for its success; that, last week, M. Talleyrand could not have ventured to have offered such propositions; but that his situation had been very materially changed by the peace with the Emperor; by that peace he had acquired, in a high degree, the confidence of the Directory, and now possessed great influence with that body; that he was also closely connected with Buonaparte and the Generals of the Army in Italy, and was to be considered as firmly fixed in his post, at least for five or six months; that, under these circumstances, he could undertake to offer, in our behalf, propositions which, before this increase of influence, he could not have hazarded. M. Y. then called our attention to our own situation, and to the force France was capable of bringing to bear upon us. He said that we were the best judges of our capacity to resist, so far as depended on our own resources, and ought not to deceive ourselves on so interesting a subject. The fate of Venice was one which might befall the United States. The American Ministers determined to have no more of these conferences, and broke them off altogether; but shortly after, they were approached indirectly and in a new way, as thus detailed by General Pinckney to his Government: On the 14th of December, M. X. called on me, in order, as he said, to gain some information relative to some lands in * * *, purchased by * * *, for whom * * *. Soon afterwards, General Marshall came in, and then Mr. Gerry's carriage drove into the yard. Here is Mr. Gerry, said General Marshall. I am glad of it, said M. X., for I wished to meet all of you gentlemen, to inform you that M. Y. had another message to you from M. Talleyrand. I immediately expressed my surprise at it, as M. Talleyrand, M. Y., and he, all knew our determination to have no further communication on the subject of our mission with persons not officially authorized. He replied, that determination was made six weeks ago; and it was presumed that we had changed our opinion. I said that I had not, and I did not believe my colleagues had. At that moment Mr. Gerry entered the room, and I privately acquainted him with the object of M. X.'s visit. General Marshall, Mr. Gerry, and myself, then withdrew into another room, and immediately agreed to adhere to our former resolution. M. X. was then called in; when I acquainted him, in a few words, with our determination; and Mr. Gerry expatiated more at large on the propriety of our acting in this manner, and on the very unprecedented way in which we had been treated since our arrival. On the 20th of December, a lady, who is well acquainted with M. Talleyrand, expressed to me her concern that we were still in so unsettled a situation; but, adds she, why will you not lend us money? If you would but make us a loan, all matters would be adjusted; and, she added, when you were contending for your revolution, we lent you money. I mentioned the very great difference there was between the situation of the two countries at that period and the present, and the very different circumstances under which the loan was made us, and the loan was now demanded from us. She replied, we do not make a demand; we think it more delicate that the offer should come from you: but M. Talleyrand has mentioned to me (who am surely not in his confidence) the necessity of your making us a loan; and I know that he has mentioned it to two or three others; and that you have been informed of it; and I will assure you that, if you remain here six months longer, you would not advance a single step further in your negotiations without a loan. If that is the case, I replied, we may as well go away now. Why that, possibly, said she, might lead to a rupture, which you had better avoid; for we know we have a very considerable party in America, who are strongly in our interest. The American Envoys having repulsed all these attempts, and refused to listen longer to these intermediaries, two of them (Messrs. Pinckney and Marshall) were furnished with their passports, and left France. Mr. Gerry remained, and underwent many attempts to be inveigled into a separate negotiation, all of which failed. In the mean time, (for half a year had now been consumed in this intrigue,) the despatches of the American Ministers had become public, exciting every where odium upon the Directorial Government. The occasion required them to say something, which Talleyrand undertook, and had the "unparalleled effrontery," as expressed by Mr. Pickering, to affect ignorance of the whole affair, to demand the names of the enigmatical personages, (X., Y., Z.,) and of the "_woman_" that reinforced them; and to pronounce the whole the imposture of some intriguers taking advantage of the state of isolation in which the Ministers lived to try and wheedle them out of money. Upon this disavowal, Mr. Pickering remarks: Although the Envoys' despatches, and the facts and circumstances hereinbefore stated, cannot leave a doubt that X., as well as Y. and Z., was well known to Mr. Talleyrand, it will not be amiss to add, that on the 2d of December, X., Y., and Z., dined together at Mr. Talleyrand's, in company with Mr. Gerry; and that, after rising from the table, the money propositions, which had before been made, were repeated, in the room and in the presence, though, perhaps, not in the hearing, of Mr. Talleyrand. Mr. X. put the question to Mr. Gerry in direct terms, either "whether the Envoys would now give the _douceur_," or "whether they had got the money ready." Mr. Gerry, very justly offended, answered positively in the negative, and the conversation dropped. Mr. Z., who has avowed himself to be Mr. Hauteval, was the person who first made known to the Envoys the Minister's desire to confer with them individually on the objects of their mission. He it was who first introduced Mr. Gerry to Mr. Talleyrand, and served as the interpreter of their conversations; and in his letter to Mr. Talleyrand, at the close of Mr. Gerry's document, No. 35, he announces himself to be the agent of the Minister, to make communications to the Envoys. The sensation which these details irresistibly excite is that of astonishment at the unparalleled effrontery of Mr. Talleyrand, in demanding of Mr. Gerry the names of X., Y., and Z., after Y. had accompanied him on a visit to the Minister, with whom the conversation detailed in the printed despatches then passed, and who then assured Mr. Gerry "that the information Mr. Y. had given him was just, and might always be relied on;" after Z. had in the first instance introduced Mr. Gerry to the Minister, and served as their mutual interpreter, and when the conversation between them had also been stated in despatches; and after X., Y., and Z. had all dined together with Mr. Gerry at Mr. Talleyrand's table, on rising from which X. and Y. renewed the proposition about the money! The very circumstances of Mr. Talleyrand's being continued in office after the account of these intrigues had been published to the world is a decisive proof that they were commenced and carried on with the privity and by the secret orders of the Directory. It was to accomplish the object of these intrigues that the American Envoys were kept at Paris unreceived six months after their credentials had been laid before the Directory; and it was only because they were superior to those intrigues, and that no hopes remained of wheedling or terrifying them into a compliance, that two of them were then sent away, and with marks of insult and contempt. The Directory at that time were: Barras, Merlin, Siéyes, Gohier, and Roger Ducos,--whose government Buonaparte soon after overthrew, and drove the two first from France, with the epithet "_rotten_" applied to them. The American Ministers were censured by some of their contemporaries for listening to these subaltern agents, but they had valid reasons for their conduct: first, to avoid the further threatened depredations on American commerce; and next, to unite their fellow-citizens at home by exposing the corruption of the (then) French Government. SIXTH CONGRESS.--FIRST SESSION. BEGUN AT THE CITY OF PHILADELPHIA, DECEMBER 2, 1799. LIST OF MEMBERS. SENATORS. _New Hampshire._--John Langdon, S. Livermore. _Vermont._--Nathaniel Chipman, Elijah Paine. _Massachusetts._--Samuel Dexter, Benjamin Goodhue. _Rhode Island._--Theodore Foster, Ray Greene. _Connecticut._--James Hillhouse, Uriah Tracy. _New York._--John Laurance, J. Watson. _New Jersey._--Jonathan Dayton, James Schureman. _Pennsylvania._--William Bingham, James Ross. _Delaware._--Henry Lattimer, William H. Willes. _Maryland._--John E. Howard, James Lloyd. _Virginia._--Stevens T. Mason, Wilson C. Nicholas. _North Carolina._--Timothy Bloodworth, Jesse Franklin. _South Carolina_--Charles Pinckney, Jacob Read. _Georgia._--A. Baldwin, James Gunn. _Tennessee._--Joseph Anderson, William Cocke. _Kentucky._--John Brown, Humphrey Marshall. REPRESENTATIVES. _New Hampshire._--Abiel Foster, Jonathan Freeman, William Gordon, James Sheafe. _Vermont._--Matthew Lyon, Lewis R. Morris. _Massachusetts._--Bailey Bartlett, Phanuel Bishop, Silas Lee, Levi Lincoln, Samuel Lyman, Harrison G. Otis, John Read, T. Sedgwick, Samuel Sewall, George Thatcher, Joseph B. Varnum, P. Wadsworth, Lemuel Williams. _Rhode Island._--John Brown, C. G. Champlin. _Connecticut._--Jonathan Brace, Samuel W. Dana, John Davenport, William Edmond, C. Goodrich, Elizur Goodrich, Roger Griswold. _New York._--Theodore Bailey, John Bird, William Cooper, Lucas Elmendorph, Henry Glenn, E. Livingston, Jonas Platt, John Smith, John Thompson, Philip Van Cortlandt. _New Jersey._--John Condit, Franklin Davenport, James H. Imlay, Aaron Kitchell, James Linn. _Pennsylvania._--Robert Brown, Albert Gallatin, Andrew Gregg, John A. Hanna, Thomas Hartley, Joseph Heister, John W. Kittera, Michael Leib, Peter Muhlenberg, John Smilie, Richard Thomas, Robert Wain, Henry Woods. _Delaware._--James A. Bayard. _Maryland._--George Baer, Gabriel Christie, William Craik, John Dennis, George Dent, Joseph H. Nicholson, Samuel Smith, John C. Thomas. _Virginia._--Samuel J. Cabell, Matthew Clay, John Dawson, John Eggleston, Thomas Evans, Samuel Goode, Edwin Gray, David Holmes, John Geo. Jackson, Henry Lee, John Marshall, Anthony New, John Nicholas, Robert Page, Josiah Parker, Levin Powell, John Randolph, Abram Trigg, John Trigg. _North Carolina._--Willis Alston, Joseph Dixon, William B. Grove, Archibald Henderson, William H. Hill, Nathaniel Macon, Richard D. Spaight, Richard Stanford, David Stone, Robert Williams. _South Carolina._--R. G. Harper, Benj. Huger, Abraham Nott, Thomas Pinckney, John Rutledge, Thomas Sumter. _Georgia._--James Jones, Benjamin Taliaferro. _Tennessee._--William C. C. Claiborne. _Kentucky._--Thomas T. Davis, John Fowler. PROCEEDINGS IN THE SENATE. MONDAY, December 2, 1799. The first session of the sixth Congress, conformably to the constitution, commenced this day, and the Senate assembled, in their Chamber, at the city of Philadelphia. PRESENT: JOHN LANGDON, from New Hampshire. BENJAMIN GOODHUE, from Massachusetts. THEODORE FOSTER, from Rhode Island. JAMES HILLHOUSE and URIAH TRACY, from Connecticut. JOHN LAURANCE and JAMES WATSON, from New York. WILLIAM BINGHAM, from Pennsylvania. HUMPHREY MARSHALL, from Kentucky. JACOB READ, from South Carolina. JAMES GUNN, from Georgia. JOSEPH ANDERSON, appointed a Senator by the State of Tennessee, for the remainder of the term for which their late Senator, ANDREW JACKSON, was appointed; ABRAHAM BALDWIN, appointed a Senator by the State of Georgia; JOHN BROWN, appointed a Senator by the State of Kentucky; SAMUEL DEXTER, appointed a Senator by the State of Massachusetts; SAMUEL LIVERMORE, appointed a Senator by the State of New Hampshire; and WILLIAM HILL WELLS, appointed a Senator by the State of Delaware; severally produced their credentials, and took their seats in the Senate. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President _pro tempore_, as the constitution provides, and SAMUEL LIVERMORE was chosen. _Ordered_, That Mr. READ administer the oath required by law to the President of the Senate _pro tempore_. The PRESIDENT administered the oath, as the law prescribes, to Messrs. ANDERSON, BALDWIN, BROWN, DEXTER, and WELLS. _Ordered_, That the Secretary wait upon the PRESIDENT OF THE UNITED STATES, and acquaint him that a quorum of the Senate is assembled, and that, in the absence of the VICE PRESIDENT, they have elected SAMUEL LIVERMORE, President of the Senate _pro tempore_. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business, and that, in the absence of the VICE PRESIDENT, they have elected SAMUEL LIVERMORE, President of the Senate _pro tempore_. _Resolved_, That each Senator be supplied, during the present session, with three such newspapers, printed in any of the States, as he may choose, provided, that the same be furnished at the rate usual for the annual charge of such papers. A message from the House of Representatives informed the Senate that a quorum of the House is assembled, and have elected THEODORE SEDGWICK their Speaker. _Ordered_, That Messrs. READ and BINGHAM, be a committee on the part of the Senate, together with such committee as the House of Representatives may appoint on their part, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. The PRESIDENT communicated a letter signed John Trumbull, presenting to the Senate of the United States impressions of two prints of the American Revolution, which he had lately caused to be published; and the letter was read. _Ordered_, That it lie on the table. The Senate adjourned to 11 o'clock to-morrow morning. TUESDAY, December 3. WILLIAM COCKE, appointed a Senator by the State of Tennessee, and JAMES SCHUREMAN, appointed a Senator by the State of New Jersey, in the room of John Rutherfurd, resigned, severally produced their credentials, were qualified, and took their seats in the Senate. HENRY LATIMER, from the State of Delaware, and JAMES ROSS, from the State of Pennsylvania, severally attended. A message from the House of Representatives informed the Senate that a quorum of the House is assembled, and have appointed a joint committee on their part, together with such committee as the Senate may appoint on theirs, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. Mr. READ reported from the joint committee appointed for the purpose, that they had waited on the PRESIDENT OF THE UNITED STATES, and had notified him that a quorum of the two Houses of Congress are assembled; and that the PRESIDENT OF THE UNITED STATES, acquainted the committee, that he would meet the two Houses, this day, at 12 o'clock, in the Chamber of the House of Representatives. A message from the House of Representatives informed the Senate that the House are now ready to meet the Senate, in the Chamber of that House, to receive such communications as the PRESIDENT OF THE UNITED STATES shall be pleased to make to them. Whereupon the Senate repaired to the Chamber of the House of Representatives, for the purpose above expressed. The Senate then returned to their own Chamber, and a copy of the Speech of the PRESIDENT OF THE UNITED STATES, this day addressed to both Houses of Congress, was read: _Gentlemen of the Senate, and Gentlemen of the House of Representatives:_ It is with peculiar satisfaction that I meet the sixth Congress of the United States of America. Coming from all parts of the Union, at this critical and interesting period, the members must be fully possessed of the sentiments and wishes of our constituents. The flattering prospects of abundance, from the labors of the people, by land and by sea; the prosperity of our extended commerce, notwithstanding interruptions occasioned by the belligerent state of a great part of the world; the return of health, industry, and trade, to those cities which have lately been afflicted with disease; and the various and inestimable advantages, civil and religious, which, secured under our happy frame of Government, are continued to us unimpaired, demand, of the whole American people, sincere thanks to a benevolent Deity, for the merciful dispensations of his providence. But, while these numerous blessings are recollected, it is a painful duty to advert to the ungrateful return which has been made for them, by some of the people in certain counties of Pennsylvania, where, seduced by the arts and misrepresentations of designing men, they have openly resisted the law directing the valuation of houses and lands. Such defiance was given to the civil authority as rendered hopeless all further attempts, by judicial process, to enforce the execution of the law; and it became necessary to direct a military force to be employed, consisting of some companies of regular troops, volunteers, and militia, by whose zeal and activity, in co-operation with the judicial power, order and submission were restored, and many of the offenders arrested. Of these, some have been convicted of misdemeanors, and others, charged with various crimes, remain to be tried. To give due effect to the civil administration of Government, and to ensure a just execution of the laws, a revision and amendment of the judiciary system is indispensably necessary. In this extensive country it cannot but happen that numerous questions respecting the interpretation of the laws, and the rights and duties of officers and citizens, must arise. On the one hand, the laws should be executed: on the other, individuals should be guarded from oppression. Neither of these objects is sufficiently assured under the present organization of the Judicial Department. I therefore earnestly recommend the subject to your serious consideration. Persevering in the pacific and humane policy which had been invariably professed and sincerely pursued by the Executive authority of the United States, when indications were made on the part of the French Republic, of a disposition to accommodate the existing differences between the two countries, I felt it to be my duty to prepare for meeting their advances, by a nomination of ministers upon certain conditions, which the honor of our country dictated, and which its moderation had given a right to prescribe. The assurances which were required of the French Government, previous to the departure of our Envoys, have been given through their Minister of Foreign Relations, and I have directed them to proceed on their mission to Paris.[45] They have full power to conclude a treaty, subject to the constitutional advice and consent of the Senate. The characters of these gentlemen are sure pledges to their country that nothing incompatible with its honor or interest, nothing inconsistent with our obligations of good faith or friendship to any other nation, will be stipulated. It appearing probable, from the information I received, that our commercial intercourse with some ports in the island of St. Domingo might safely be renewed, I took such steps as seemed to me expedient to ascertain that point. The result being satisfactory, I then, in conformity with the act of Congress on the subject, directed the restraints and prohibitions of that intercourse to be discontinued, on terms which were made known by proclamation. Since the renewal of this intercourse, our citizens, trading to those ports, with their property, have been duly respected, and privateering from those ports has ceased. The act of Congress relative to the seat of the Government of the United States, requiring that, on the first Monday of December next, it should be transferred from Philadelphia to the district chosen for its permanent seat, it is proper for me to inform you that the Commissioners appointed to provide suitable buildings for the accommodation of Congress and of the President, and for the public offices of the Government, have made a report of the state of the buildings designed for those purposes in the city of Washington; from which they conclude that the removal of the seat of Government to that place, at the time required, will be practicable, and the accommodations satisfactory. Their report will be laid before you. At a period like the present, when momentous changes are occurring, and every hour is preparing new and great events in the political world, when a spirit of war is prevalent in almost every nation with whose affairs the interests of the United States have any connection, unsafe and precarious would be our situation were we to neglect the means of maintaining our just rights. The result of the mission to France is uncertain; but, however it may terminate, a steady perseverance in a system of national defence, commensurate with our resources and the situation of our country, is an obvious dictate of wisdom; for, remotely as we are placed from the belligerent nations, and desirous as we are, by doing justice to all, to avoid offence to any, nothing short of the power of repelling aggressions will secure to our country a rational prospect of escaping the calamities of war, or national degradation. As to myself, it is my anxious desire so to execute the trust reposed in me, as to render the people of the United States prosperous and happy. I rely, with entire confidence, on your co-operation in objects equally your care; and that our mutual labors will serve to increase and confirm union among our fellow-citizens, and an unshaken attachment to our Government. JOHN ADAMS. UNITED STATES, _December 3, 1799_. _Ordered_, That Messrs. ROSS, READ, and TRACY, be a committee to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech this day to both Houses. _Ordered_, That the Speech of the PRESIDENT OF THE UNITED STATES, this day communicated to both Houses of Congress, be printed for the use of the Senate. _Resolved_, That two Chaplains of different denominations, be appointed to Congress for the present session, one by each House, who shall interchange weekly. The Senate proceeded to the appointment of a Chaplain to Congress on their part, and the Right Reverend Bishop WHITE was unanimously elected. THURSDAY, December 5. JONATHAN DAYTON, appointed a Senator by the State of New Jersey, and RAY GREENE, appointed a Senator by the State of Rhode Island, severally produced their credentials, were qualified, and took their seats in the Senate. MONDAY, December 9. ELIJAH PAINE, from the State of Vermont, attended. The Senate proceeded to consider the report of the committee of the draft of an Address in answer to the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress, at the opening of the session; which, being read in paragraphs, was adopted, as follows: _To the President of the United States:_ Accept, sir, the respectful acknowledgments of the Senate of the United States, for your Speech delivered to both Houses of Congress at the opening of the present session. While we devoutly join you in offering our thanks to Almighty God, for the return of health to our cities, and for the general prosperity of the country, we cannot refrain from lamenting that the arts and calumnies of factious, designing men, have excited open rebellion a second time in Pennsylvania; and thereby compelled the employment of military force to aid the civil authority in the execution of the laws. We rejoice that your vigilance, energy, and well-timed exertions, have crushed so daring an opposition, and prevented the spreading of such treasonable combinations. The promptitude and zeal displayed by the troops called to suppress this insurrection, deserve our highest commendation and praise, and afford a pleasing proof of the spirit and alacrity with which our fellow-citizens are ready to maintain the authority of our excellent Government. Knowing, as we do, that the United States are sincerely anxious for a fair and liberal execution of the Treaty of Amity, Commerce, and Navigation, entered into with Great Britain, we learn, with regret, that the progress of adjustment has been interrupted, by a difference of opinion among the commissioners. We hope, however, that the justice, the moderation, and the obvious interests of both parties, will lead to satisfactory explanations, and that the business will then go forward to an amicable close of all differences and demands between the two countries. We are fully persuaded that the Legislature of the United States will cheerfully enable you to realize your assurances of performing, on our part, all engagements under our treaties, with punctuality, and the most scrupulous good faith. When we reflect upon the uncertainty of the result of the late mission to France, and upon the uncommon nature, extent, and aspect, of the war now raging in Europe--which affects materially our relations with the powers at war, and which has changed the condition of their colonies in our neighborhood--we are of opinion, with you, that it would be neither wise nor safe to relax our measures of defence, or to lessen any of our preparations to repel aggression. Our inquiries and attention shall be carefully directed to the various other important subjects which you have recommended to our consideration; and from our experience of your past administration, we anticipate, with the highest confidence, your strenuous co-operation in all measures which have a tendency to promote and extend our national interests and happiness. SAMUEL LIVERMORE, _President of the Senate, pro tempore_. _Ordered_, That the committee who prepared the Address, wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. Mr. ROSS reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he would receive the Address of the Senate to-morrow, at 12 o'clock, at his own house. Whereupon, _Resolved_, That the Senate will, to-morrow, at 12 o'clock, wait on the PRESIDENT OF THE UNITED STATES accordingly. TUESDAY, December 10. Agreeably to the resolution of yesterday, the Senate waited on the PRESIDENT OF THE UNITED STATES, and the President of the Senate, in their name, presented the Address then agreed to. To which the PRESIDENT OF THE UNITED STATES made the following reply: _Gentlemen of the Senate:_ I thank you for this Address. I wish you all possible success and satisfaction in your deliberations on the means which have a tendency to promote and extend our national interests and happiness; and I assure you that, in all your measures directed to those great objects, you may, at all times, rely with the highest confidence on my cordial co-operation. The praise of the Senate, so judiciously conferred on the promptitude and zeal of the troops, called to suppress the insurrection, as it falls from so high authority, must make a deep impression, both as a terror to the disobedient, and an encouragement of such as do well. JOHN ADAMS. UNITED STATES, _December 10, 1799_. The Senate returned to their own Chamber, and proceeded to the consideration of Executive business. WEDNESDAY, December 11. NATHANIEL CHIPMAN, from the State of Vermont, attended. THURSDAY, December 12. JAMES LLOYD, from the State of Maryland, attended. TUESDAY, December 17. Mr. TRACY, from the committee to whom was referred the letter signed John Trumbull, of 20th September, 1798, reported a resolution, which was adopted, as follows: _Resolved_, That the Senate of the United States accept the prints presented by John Trumbull, Esq., and that their President be requested to inform him, that while they respect the delicacy which dictated the _manner_ of offering this elegant present, they consider their country honored by the genius of one of her sons, by whom these prints are happily designed, to perpetuate two memorable scenes in her progress to independence, and to preserve in lively recollection the names and virtues of heroes who fell in her defence. THURSDAY, December 19. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives:_ The letter herewith transmitted will inform you that it has pleased Divine Providence to remove from this life our excellent fellow-citizen GEORGE WASHINGTON, by the purity of his character, and a long series of services to his country, rendered illustrious through the world. It remains for an affectionate and grateful people, in whose hearts he can never die, to pay suitable honors to his memory. JOHN ADAMS. UNITED STATES, _December 19, 1799_. The Message and letter were read and ordered to lie for consideration. A message from the House of Representatives informed the Senate that the House having received intelligence of the death of their highly-valued fellow-citizen, General GEORGE WASHINGTON, and sharing the universal grief this distressing event must produce, have resolved that a joint committee be appointed, to report measures suitable to the occasion, and expressive of the profound sorrow with which Congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen; and, having appointed a committee on their part, desire the concurrence of the Senate. The Senate proceeded to consider the foregoing resolution of the House of Representatives; whereupon, _Resolved_, That they do concur therein, and that Messrs. DAYTON, BINGHAM, DEXTER, GUNN, LAURANCE, TRACY, and READ, be the committee on the part of the Senate. _Resolved_, That the Senate will wait on the PRESIDENT OF THE UNITED STATES, to condole with him on the distressing event of the death of General GEORGE WASHINGTON; and that a committee be appointed to prepare, for that occasion, an Address to the PRESIDENT OF THE UNITED STATES, expressive of the deep regret of the Senate; and that this committee consist of Messrs. DEXTER, ROSS, and READ. _Resolved_, That the chairs in the Senate Chamber be covered, and the room hung with black, and that each member, and the officers of the Senate, go into mourning, by the usual mode of wearing a crape round the left arm, during the session. MONDAY, December 23. TIMOTHY BLOODWORTH, from the State of North Carolina, and JOHN E. HOWARD, from the State of Maryland, severally attended. Mr. DEXTER, from the committee appointed for the purpose on the 18th instant, reported the draft of an Address to the PRESIDENT OF THE UNITED STATES, on the death of General GEORGE WASHINGTON; which being read in paragraphs, was adopted, as follows: _To the President of the United States:_ The Senate of the United States respectfully take leave, sir, to express to you their deep regret for the loss their country sustains in the death of General GEORGE WASHINGTON. This event, so distressing to all our fellow-citizens, must be peculiarly heavy to you, who have long been associated with him in deeds of patriotism. Permit us, sir, to mingle our tears with yours; on this occasion it is manly to weep. To lose such a man, at such a crisis, is no common calamity to the world. Our Country mourns her Father. The Almighty Disposer of human events has taken from us our greatest benefactor and ornament. It becomes us to submit with reverence to Him who "maketh darkness his pavilion." With patriotic pride, we review the life of our WASHINGTON, and compare him with those of other countries, who have been pre-eminent in fame. Ancient and modern names are diminished before him. Greatness and guilt have too often been allied; but his fame is whiter than it is brilliant. The destroyers of nations stood abashed at the majesty of his virtues. It reproved the intemperance of their ambition, and darkened the splendor of victory. The scene is closed, and we are no longer anxious lest misfortune should sully his glory; he has travelled on to the end of his journey, and carried with him an increasing weight of honor; he has deposited it safely, where misfortune cannot tarnish it, where malice cannot blast it. Favored of heaven, he departed without exhibiting the weakness of humanity. Magnanimous in death, the darkness of the grave could not obscure his brightness. Such was the man whom we deplore. Thanks to God! his glory is consummated; WASHINGTON yet lives--on earth in his spotless example--his spirit is in heaven. Let his countrymen consecrate the memory of the heroic General, the patriotic Statesman, and the virtuous Sage; let them teach their children never to forget that the fruit of his labors and his example are their inheritance. SAMUEL LIVERMORE, _President of the Senate, pro tempore_. _Ordered_, That the committee who prepared the Address, wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. Mr. DEXTER reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he had acquainted them that he would receive the Address of the Senate immediately, at his own house. Whereupon, the Senate waited on the PRESIDENT OF THE UNITED STATES, and the PRESIDENT of the Senate, in their name, presented the Address this day agreed to. To which the PRESIDENT OF THE UNITED STATES made the following reply: _Gentlemen of the Senate:_ I receive with the most respectful and affectionate sentiments, in this impressive address, the obliging expressions of your regard for the loss our country has sustained in the death of her most esteemed, beloved, and admired citizen. In the multitude of my thoughts and recollections on this melancholy event, you will permit me only to say, that I have seen him in the days of adversity in some of the scenes of his deepest distress and most trying perplexities; I have also attended him in his highest elevation, and most prosperous felicity, with uniform admiration of his wisdom, moderation, and constancy. Among all our original associates in that memorable League of the Continent in 1774, which first expressed the sovereign will of a free nation in America, he was the only one remaining in the General Government. Although, with a constitution more enfeebled than his, at an age when he thought it necessary to prepare for retirement, I feel myself alone, bereaved of my last brother, yet I derive a strong consolation from the unanimous disposition which appears, in all ages and classes, to mingle their sorrows with mine, on this common calamity to the world. The life of our WASHINGTON cannot suffer by a comparison with those of other countries who have been most celebrated and exalted by fame. The attributes and decorations of royalty could have only served to eclipse the majesty of those virtues which made him, from being a modest citizen, a more resplendent luminary. Misfortune, had he lived, could hereafter have sullied his glory only with those superficial minds, who, believing that characters and actions are marked by success alone, rarely deserve to enjoy it. Malice could never blast his honor, and envy made him a singular exception to her universal rule. For himself, he had lived enough to life, and to glory. For his fellow-citizens, if their prayers could have been answered, he would have been immortal. For me, his departure is at a most unfortunate moment. Trusting, however, in the wise and righteous dominion of Providence over the passions of men, and the results of their councils and actions, as well as over their lives, nothing remains for me but humble resignation. His example is now complete, and it will teach wisdom and virtue to magistrates, citizens, and men, not only in the present age, but in future generations, as long as our history shall be read. If a Trajan found a Pliny, a Marcus Aurelius can never want biographers, eulogists, or historians. JOHN ADAMS. UNITED STATES, _December 23, 1799_. The Senate returned to their own Chamber. A message from the House of Representatives informed the Senate that the joint committee appointed on the part of the House of Representatives, on the 19th instant, on the receipt of the intelligence of the death of General GEORGE WASHINGTON, having made report to that House, they have agreed to sundry resolutions thereupon, in which they desire the concurrence of the Senate. Mr. DAYTON, from the joint committee appointed the 19th instant, on the part of the Senate, on the receipt of the intelligence of the death of General GEORGE WASHINGTON, reported in part, and the report was agreed to. Whereupon, The Senate took into consideration the resolutions of the House of Representatives, of this day, on the report of the joint committee on the subject above mentioned, and which resolutions are as follows: _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That a marble monument be erected by the United States in the Capitol, at the City of Washington; and that the family of General WASHINGTON be requested to permit his body to be deposited under it; and that the monument be so designed as to commemorate the great events of his military and political life. _And be it further resolved_, That there be a funeral procession from Congress Hall to the German Lutheran Church, in honor of the memory of General GEORGE WASHINGTON, on Thursday, the 26th instant; and that an oration be prepared at the request of Congress, to be delivered before both Houses on that day; and that the President of the Senate, and Speaker of the House of Representatives, be desired to request one of the members of Congress to prepare and deliver the same. _And be it further resolved_, That it be recommended to the people of the United States to wear crape on the left arm, as mourning, for thirty days. _And be it further resolved_, That the PRESIDENT OF THE UNITED STATES be requested to direct a copy of these resolutions to be transmitted to Mrs. WASHINGTON, assuring her of the profound respect Congress will ever bear to her person and character; of their condolence on the late afflicting dispensation of Providence, and entreating her assent to the interment of the remains of General GEORGE WASHINGTON, in the manner expressed in the first resolution. _Resolved_, That the PRESIDENT OF THE UNITED STATES be requested to issue a proclamation, notifying to the people throughout the United States, the recommendation contained in the third resolution. _Resolved, unanimously_, That the Senate do concur in the aforesaid resolutions. THURSDAY, December 26. In conformity to the resolve of the 23d instant, the Senate went in procession to the German Lutheran Church, where was delivered an oration in honor of the memory of General GEORGE WASHINGTON. After which, they returned to their own Chamber, and adjourned. FRIDAY, December 27. _Resolved_, That the thanks of the Senate be communicated, through their President, to General HENRY LEE, for the eloquent and impressive oration to the memory of General GEORGE WASHINGTON, which he prepared and delivered at the request of Congress. _Resolved_, That the Secretary be directed to apply to General LEE for a copy of the same. MONDAY, December 30. THOMAS JEFFERSON, Vice President of the United States, and President of the Senate, attended. JESSE FRANKLIN, appointed a Senator by the Legislature of the State of North Carolina, produced his credentials, was qualified, and took his seat in the Senate. The VICE PRESIDENT laid before the Senate a letter signed John Cleves Symmes, stating the reasons why Congress should be induced to receive of him the purchase money for certain public lands at the contract price; and the letter was read. Mr. LIVERMORE laid before the Senate a letter signed Henry Lee, in answer to their vote of thanks of the 27th instant, and request of a copy of his oration; which was read. Mr. DAYTON, from the joint committee appointed the 19th instant, on the intelligence of the death of General GEORGE WASHINGTON, made a further report, in part, and it was agreed that the consideration thereof be postponed. TUESDAY, December 31. A message from the House of Representatives informed the Senate that the House have passed "Resolutions directing further measures in honor of the memory of General George Washington," in which they desire the concurrence of the Senate. The resolutions were read, as follows: _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That it be recommended to the people of the United States to assemble on the 22d day of February next, in such numbers and manner as may be convenient, publicly to testify their grief for the death of General GEORGE WASHINGTON, by suitable eulogies, orations, and discourses, or by public prayers. _And be it further resolved_, That the PRESIDENT be requested to issue a proclamation for the purpose of carrying the foregoing resolution into effect. Whereupon, _Resolved_, That the Senate do concur in the said resolution. FRIDAY, January 3, 1800. WILSON CARY NICHOLAS, appointed a Senator by the Legislature of the State of Virginia, to supply the vacancy occasioned by the death of Henry Tazewell, Esq., produced his credentials, was qualified, and took his seat in the Senate. TUESDAY, January 7. STEPHENS THOMPSON MASON, from the State of Virginia, attended. WEDNESDAY, January 8. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives:_ In compliance with the request in one of the resolutions of Congress, of the 21st of December last, I transmitted a copy of those resolutions, by my Secretary, Mr. Shaw, to Mrs. WASHINGTON, assuring her of the profound respect Congress will ever bear to her person and character; of their condolence in the late afflicting dispensation of Providence; and entreating her assent to the interment of the remains of General GEORGE WASHINGTON, in the manner expressed in the first resolution. As the sentiments of that virtuous lady, not less beloved by this nation than she is at present greatly afflicted, can never be so well expressed as in her own words, I transmit to Congress her original letter. It would be an attempt of too much delicacy to make any comments upon it; but there can be no doubt that the nation at large, as well as all the branches of the Government, will be highly gratified by any arrangement which may diminish the sacrifice she makes of her individual feelings. JOHN ADAMS. UNITED STATES, _January 8, 1800_. The letter is as follows: SIR: While I feel with keenest anguish the late dispensation of Divine Providence, I cannot be insensible to the mournful tributes of respect and veneration which are paid to the memory of my dear deceased husband; and, as his best services, and most anxious wishes, were always devoted to the welfare and happiness of his country, to know that they were truly appreciated and gratefully remembered, affords no inconsiderable consolation. Taught by the great example which I have so long had before me, never to oppose my private wishes to the public will, I must consent to the request made by Congress, which you have had the goodness to transmit to me; and, in doing this, I need not, I cannot, say what a sacrifice of individual feeling I make to a sense of public duty. With grateful acknowledgments, and unfeigned thanks, for the personal respect and evidences of condolence, expressed by Congress and yourself, I remain, very respectfully, sir, your most obedient, humble servant. MARTHA WASHINGTON. The PRESIDENT OF THE UNITED STATES. _Ordered_, That the Message and letter be referred to the joint committee appointed on the 19th December last, to report suitable measures in honor of the memory of General GEORGE WASHINGTON, deceased. THURSDAY, January 23. CHARLES PINCKNEY, appointed a Senator by the State of South Carolina, produced his credentials, was qualified, and took his seat in the Senate. _Disputed Presidential Elections._ On motion, of Mr. Ross, that it be _Resolved_, That a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of President and Vice President of the United States, and for determining the legality or illegality of the votes given for those officers in the different States: A motion was made to amend the motion by adding, "and that the committee be authorized to report by bill or otherwise." Mr. BROWN, of Kentucky, was of opinion that this was a subject on which Congress had no right to legislate. When the constitution undertook to make provisions on a subject, if they were found incomplete, or defective, they must be remedied by recommending an amendment to the constitution. He wished the gentleman who had made this motion would pay further attention to the subject, and believed he would find that if any thing was to be done it must be done by proposing an amendment to the constitution. Mr. Ross said, that the constitution had certainly made no provision on this subject. It only directed that after the votes were received, &c., the President of the Senate should, in the presence of the Senate and the House of Representatives, open the certificates, and the votes should be counted. Suppose, said he, persons should claim to be Electors, who had never been _properly_ appointed, should their vote be received? Suppose they should vote for a person to be President who had not the age required by the constitution, or who had not been long enough a citizen of the United States, or for two persons who were both citizens of the same State--such cases might happen and were very likely to happen, and is there no remedy? What a situation would the country be in if such a case was to happen! He thought it their duty to make provision for it, and he believed a law was sufficient. Mr. C. PINCKNEY, of South Carolina, thought it a very dangerous practice to endeavor to amend the constitution by making laws for the purpose. The constitution was a sacred deposit, put into their hands; they ought to take great care not to violate or destroy the essential provisions made by that instrument. He remembered very well that in the Federal Convention great care was used to provide for the election of the President of the United States, independently of Congress; to take the business as far as possible out of their hands. The votes are to be given by Electors appointed for that express purpose, the Electors are to be _appointed_ by each State, and the whole direction as to the manner Of their appointment is given to the State Legislatures. Nothing was more clear to him than that Congress had no right to meddle with it at all; as the whole was intrusted to the State Legislatures, they must make provision for all questions arising on the occasion. Mr. DEXTER, of Massachusetts, did not feel himself at all in doubt as to the right of the Legislature to make such provisions on this subject as appeared to be necessary. It was directed by the constitution that a President should be appointed, that he should be of not less than thirty-five years of age, that he should have been at least fourteen years a citizen of the United States, &c. The proceedings in the election of a President may be defective in all these particulars, and can it be supposed that there is no way to correct them? The constitution is not silent on this head; among the powers given to Congress in the 5th section is this, "to pass all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof." The law now proposed appears to be necessary to carry into effect the power of appointing the President; it is, therefore, clearly constitutional. Mr. LIVERMORE, of New Hampshire never felt less doubt on any subject than the one now under consideration: the constitution has given many directions as to the appointment of the President, some of which he read. It is possible (said Mr. L.) that gentlemen can suppose all these may be violated and disregarded, and yet that it is nobody's business to interpose and make provision to prevent it? He trusted the honorable Senate would agree to the resolution to appoint a committee for that purpose. Mr. BALDWIN, of Georgia, expressed his regret that the mover of this resolution had not thought proper to bring forward a subject so new and important, in the form commonly used in parliamentary assemblies, by a single proposition, viz: "that it is expedient that further provision be made respecting disputed votes for President and Vice President of the United States." It was manifest from the debate that several different questions had been under consideration at the same time, and different gentlemen were in fact directing their remarks to different questions. The first question was, the one he had just mentioned, whether there was so great a defect in the present provisions, which exist on this subject, as to render further provisions necessary? The second is, if further provisions are necessary, must they be made by amendment to the constitution? or, Thirdly, whether they can be made by law? He must say for himself, that he did not agree that the present provisions on this subject were so defective and absurd as had been represented. His general respect for those who had gone before him in this House, and especially for the venerable assembly of the most experienced statesmen of the country by whom the constitution had been formed, forbade him to entertain the belief that the subject, which is the strong feature that characterizes this as an Elective Government, could have been till now so entirely out of sight and neglected. Gentlemen appeared to him, from their observations, to forget that the constitution in directing _Electors_ to be appointed throughout the United States equal to the whole number of the Senators and Representatives in Congress, for the express purpose of intrusting this constitutional branch of power to them, had provided for the existence of as respectable a body as Congress, and in whom the constitution on this business has more confidence than in Congress. Experience had proved that a more venerable selection of characters could not be made in this country than usually composed that electoral body. And what are the questions which can arise on the subject intrusted to them to which they are incompetent, or to which Congress is so much more competent? The questions which present themselves seem to be: 1. Those which relate to the elections, returns, and qualifications, of their own members. Shall these be taken away from that body, and submitted to the superior decision and control of Congress, without a particle of authority for it from the constitution? 2. The legality or constitutionality of the different steps of their own proceedings, as, whether they vote for two persons both of the same State; whether they receive votes for a person under thirty-five years of age, or one who has not been fourteen years a citizen of the United States, &c. It is true they, as well as any other constitutional branch of this Government acting under that instrument, may be guilty of taking unconstitutional or corrupt steps, but they do it at their peril. Suppose either of the other branches of the Government, the Executive, or the Judiciary, or even Congress, should be guilty of taking steps which are unconstitutional, to whom is it submitted, or who has control over it, except by impeachment? The constitution seems to have equal confidence in all the branches on their own proper ground, and for either to arrogate superiority, or a claim to greater confidence, shows them in particular to be unworthy of it, as it is in itself directly unconstitutional. 3. The authentication of their own acts. This would seem to be as complete in them, as in either of the other branches of the Government. Their own authentication of their act finishes the business intrusted to them. It is true this must be judged of by the persons who are concerned in carrying it into execution; as in all laws and official acts under this Government, they to whom they are directed, and who are to be bound by them, must judge, and judge at their peril, whether they are duly authenticated or whether they are only a forgery. If this be the just view of the subject, (and he could see no other which did not involve inextricable difficulties,) it leaves no possible question for the Senators and Representatives, when met together to count the votes agreeably to the constitution, but to judge of the authentication of the act of the Electors, and then to proceed and count the votes as directed. If this body of the Electors of all the States had been directed by the constitution to assemble in one place, instead of being formed into different Electoral colleges, he took it for granted none of the questions on which this resolution has been brought forward, would have occurred; every one would have acknowledged that they were to be settled in that assembly. It having been deemed more safe by the constitution to form them into different Electoral colleges, to be assembled in the several States, does not at all alter the nature or distinctness of their powers, or subject them any more to the control of the other departments of the Government. He observed further on the other points to which gentlemen had spoken, that if such radical and important changes were to be made on this subject, as seemed to be in contemplation under this resolution, he thought they must be made by proposing an amendment to the constitution to that effect; and that they could not be made by law, without violating the constitution. He did not agree with the gentleman from Massachusetts, (Mr. DEXTER,) that the clause at the close of the 8th section of the constitution, which gives to Congress power to pass all laws necessary and proper to carry into effect the foregoing powers of that section, and all other powers vested by the constitution in the Government of the United States, or in any department or officer thereof, could be extended to this case: that speaks of the use of the powers vested by the constitution--this resolution relates to the formation of a competent and essential part of the Government itself: that speaks of the movements of the Government after it is organized--this relates to the organization of the Executive branch, and is therefore clearly a constitutional work, and to be done, if at all, in the manner pointed out by the constitution, by proposing an article of amendment to the constitution on that subject. His own opinion, however, was, what he had before stated, that the provisions on this subject were already sufficient; that all the questions which had been suggested were as safely left to the decision of the assemblies of Electors, as of any body of men that could be devised; and that the members of the Senate and of the House of Representatives, when met together in one room, should receive the act of the Electors as they would the act of any other constitutional branch of the Government, to judge only of its authentication, and then to proceed to count the votes, as directed in the second article of the constitution. The further consideration of the subject was postponed. FRIDAY, January 24. _Disputed Presidential Elections._ The Senate resumed the consideration of the motion made yesterday, that a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of President and Vice President of the United States, and for determining the legality or illegality of the votes given for those officers in the different States, and that the committee be authorized to report by bill or otherwise; and the motion as amended was adopted; and, _Ordered_, That Messrs. ROSS, LAURANCE, DEXTER, PINCKNEY, and LIVERMORE, be the committee. THURSDAY, February 20. _Disputed Presidential Elections._ The Senate resumed the consideration of the bill prescribing the mode of deciding disputed elections of President and Vice President of the United States. On motion to strike out of the first section of the bill the following words: Together with the Chief Justice of the United States, or if he be absent from the Seat of Government or unable to attend, then with the next senior Judge of the Supreme Court of the United States, who may be present and able to attend. It passed in the negative--yeas 11, nays 19, as follows: YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney. NAYS.--Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Greene, Gunn, Hillhouse, Howard, Latimer, Laurance, Livermore, Paine, Read, Ross, Schureman, Tracy, Watson, and Wells. On motion to strike out these words from the 1st section: "to choose by ballot in each House six members," and in lieu thereof to insert "to draw by lot in each House ---- members:" It was determined in the negative--yeas 9, nays 18, as follows: YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Langdon, Marshall, Mason, and Nicholas. NAYS.--Messrs. Chipman, Dayton, Dexter, Foster, Franklin, Goodhue, Greene, Gunn, Hillhouse, Latimer, Laurance, Livermore, Paine, Read, Ross, Schureman, Tracy, and Wells. _Ordered_, That the further consideration of the bill be postponed. FRIDAY, February 21. _Eulogium on General Washington._ _Resolved_, That the Senate will, to-morrow, at half past 12 o'clock, meet at the Senate Chamber, and from thence walk in procession to the German Calvinist Church in Race street, to hear the eulogium pronounced on the character of General WASHINGTON. MONDAY, February 24. _Disputed Presidential Elections._ The Senate resumed the second reading of the bill prescribing the mode of deciding disputed elections of President and Vice President of the United States. On motion, to amend the bill, section 5th, line 7th, so as to provide that the proceedings of the committee be held in public, by striking out the words "with closed doors," and inserting, "in the Chamber of the House of Representatives, with open doors," in lieu thereof: It passed in the negative--yeas 8, nays 16, as follows: YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Langdon, Mason, and Nicholas. NAYS.--Messrs. Bingham, Chipman, Foster, Goodhue, Greene, Hillhouse, Howard, Latimer, Laurance, Livermore, Marshall, Paine, Read, Ross, Tracy, and Wells. And, after progress, the further consideration of the bill was postponed. WEDNESDAY, February 26. _Breach of Privilege._ DUANE AND THE AURORA. A motion was made, by Mr. TRACY, that it be _Resolved_, That the Committee of Privileges be, and they are hereby, directed to inquire who is the editor of the newspaper printed in the city of Philadelphia, called the General Advertiser, or Aurora, and by what means the editor became possessed of the copy of a bill prescribing the mode of deciding disputed elections of President and Vice President of the United States, which was printed in the aforesaid newspaper, published Wednesday morning, the 19th instant, February, and by what authority he published the same; and by what authority the editor published in the same paper that the honorable Mr. Pinckney, a Senator from South Carolina, and a member of the committee who brought before the Senate the bill aforesaid, had never been consulted on the subject. And generally to inquire the origin of sundry assertions in the same paper, respecting the Senate of the United States, and the members thereof, in their official capacity, and why the same were published; and make report to the Senate. And that the said committee have power to send for persons, papers, and records, relating to the subject committed to them. _Ordered_, That this motion lie for consideration. The Senate resumed the second reading of the bill prescribing the mode of deciding disputed elections of the President and Vice President of the United States; and after progress, adjourned. WEDNESDAY, March 5. _Breach of Privilege._ The Senate took into consideration the motion made on the 26th of February last, that an inquiry be had relative to a publication in a newspaper called the "Aurora," on the 19th of the said month; and agreed to insert after these words: "and by what authority he published the same," line 7th, the words "as having passed the Senate." Mr. COCKE said, he would not suffer a measure of this kind to pass through the Senate, while he had the honor of a seat in that body, without manifesting the most determined opposition. What did the gentleman mean by avoiding the general principle? did he mean to get the consent of the Senate, acting in the character of an inquest, to an acknowledgment that the editor of the Aurora had been guilty of a crime, without any inquiry whether the publication in itself was criminal, or whether if it was criminal, the Senate, as an independent and a single branch of the Legislature, had of itself the power to define the crime and inflict the punishment? He could not consent to an admission of this kind; the constitution gave them no such authority; the privileges of the House and of the members did not extend beyond the walls of the Chamber in which they were sitting, in cases of comment upon their official proceedings. He had held these opinions from the time the motion was first laid before the House, and thought that the consequences which would result from pursuing the subject, would be more dangerous to the honor and dignity of the Senate, which it was meant to defend, than all the attacks which all the public newspapers could make during their existence, inasmuch as an actual assumption of power was far more detrimental to their character than any unfounded charge of tyranny could be. He believed that the more the subject was agitated the more would be the clamor against the Senate, and in the end they would be forced to abandon the measure for want of ability to carry it through; he therefore concluded it would be best to give it up in the first instance, and save both their own time and the public money. He would move to postpone the consideration of the motion till the first Monday in December next. Mr. TRACY did not wish to hurry on the decision, but as the resolution had been several days upon the table, he believed the House might now decide on the propriety of referring the business to the Committee of Privileges, as this procedure would not be final; or, if the House was not ready to vote immediately, the discussion might proceed and time would be given for coming to the conclusion. Mr. C. PINCKNEY.--This subject involves the important questions, What are the privileges of Congress, and how far are they defined by the constitution; and what is the liberty of the press, as it respects those privileges? These are subjects of great consequence, and such as I suppose the House will touch with much caution. My name having been mentioned in the body of the original motion, I feel myself particularly called upon to deliver my sentiments fully, as well with respect to the manner in which it is mentioned, as to the limitations of the constitution, and what ought, in my judgment, to be the conduct of the Senate, on this very interesting occasion. In considering, first, what are the privileges of Congress, and how far they are defined by the constitution, I am naturally led into a repetition of arguments I have found myself too frequently obliged to use on this floor; that is, to entreat the House to recollect the nature of our federal system; that all powers not expressly and specifically delegated to Congress, are reserved to the States and people: and particularly to remember, that where any powers are so expressly defined as the privileges of Congress are, that it is our duty very carefully to consider the consequences, before we take a step that may, by subsequent or cool reflection, be found to exceed them; that the privileges of Congress, as limited by the constitution, have been very deliberately considered by men whose opinions were not swayed by party, and whose impartial situation gave the best opportunity of judging; that having before them the example of the unlimited privileges of the British Parliament, and colonial assemblies, or councils, assuming to themselves the right of such privileges; that knowing the consequences of undefined powers, and being well aware what privileges were necessary to prevent an interruption of the undisturbed situation a member should enjoy, during the time he is engaged on public affairs, after much thought they had defined them in the manner fixed by the constitution. No man, who is a friend to order, will justify what properly deserves to be termed the licentiousness of the press. When, instead of candidly reviewing the arguments or public conduct of a member of the Legislature, or officer of the Government, it meanly descends to private scandal, instead of being defended, it should be met with contempt and disdain. Abuse is the price that public men, and frequently those of the most ability, are obliged to pay; and it is seldom, in countries where the press is free, and strong political parties are known to exist, that it is much noticed. Men of elevated minds, who feel themselves strong in the powers of reasoning, will always yield to their feeble opponents the miserable resort of abuse; it is the surest test of imbecility, and the public, who generally think right, seldom hesitate to suppose it equally the proof of weakness and of malice. I shall consider this subject from its importance, and the peculiar manner in which it has been introduced, as open to such animadversions as are within the rules of order and are consistent with decorum. I shall probably advance doctrines that will be termed as extraordinary here, but it shall be done with the good manners I have ever considered as the criterion of good breeding, and which self-respect will forbid my violating. It is the first question respecting the privileges of the Senate that I have ever been present at, and, as it involves the liberty of the press, it is only necessary for me to mention these subjects, to show the House the propriety of our well-examining every line of the resolution on your table, before we adopt it. I feel myself particularly called upon to give my opinion fully on this subject, because my name is inserted in the body of the resolution, and, to those unacquainted with the circumstances, it might have the appearance of being done at my request; whereas it was not only done without my knowledge, but is contrary to my wish, and opinion of the power of the House, and of the mode in which such inquiries should be conducted; that even if the House had the power, the remarks and information contained in the paper are not sufficiently important to attract its notice, particularly as they had been completely silent on the abuse of the Senate in the Gazette of the United States, respecting the stopping of the enlistments for the army; that the inquiry might lead to steps not within the defined privileges of the Senate, and that, as these may involve the liberty of the press, and the right of a citizen to publish the debates and public acts of this House, those who were opposed to what they might consider unconstitutional restrictions, ought to meet the question at the threshold, and contest it in every stage. I shall therefore feel it peculiarly my duty to do so, and, after having stated to you my objections to any interference at all on this subject, to move the postponement of the resolution, or to amend it in some way that shall place on the journals my opinions of the extent of your privileges, and reasons for objecting to the mode of inquiry proposed by the gentleman from Connecticut. In examining the constitution we find, that to prevent any attempt being made on the part of either branch of Congress to define their own privileges, and exercise the same, as occasion or circumstances may, in their opinions, require, and to remove all doubt as to the extent and exercise of the privileges they are to enjoy, the constitution has positively and expressly limited and defined the same, by declaring-- "That each House shall be the judge of the elections, returns, and qualifications of its own members; that they may compel the attendance of absent members, in such manner, and under such penalties, as each House may provide; that they may determine the rules of their proceedings, punish the members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. That the members of both Houses shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest during the attendance at their respective Houses, and in going to and returning from the same, and, for any debate or speech in either House, shall not be questioned in any other place." This is all that is said on the subject of privilege; and surely no words can be more explicit, nor any subject more clearly defined. The powers they are to exercise, and the persons and cases they are to operate upon, are all distinctly marked and named; nor is there a word or a sentence in the whole that can by any possible construction be made to mean that for any libels or printed attack on the public conduct or opinions of either House of Congress, or of any of its members, that their privilege shall extend to ordering the persons charged with the offence before them, and imprisoning them at their will. The constitution wisely determined, that they should possess all the powers necessary to their formation, and the undisturbed order of their proceedings, and the safety of their members from arrest, during their attendance, and going to, and returning from Congress; but it at the same time recollected, that it is the nature of our Government to invite examinations of public measures, that it is the duty of our citizens to make these inquiries, to watch over the proceedings of our public bodies, and if they find them departing from the constitution, or exceeding their authority, instantly to announce it. That our constitution supposes no man, or body of men, to be infallible, but considers them all as mere men, and subject to all the passions, and frailties, and crimes, that men generally are, and accordingly provides for the trial of such as ought to be tried, and leaves the members of the Legislature, for their proceedings, to be amenable to their constituents and to public opinion; it however particularly guards the right of the citizens to investigate their measures; and in case of a false or libellous attack, it intends, if the power of collecting juries is fairly exercised, to provide a just and impartial tribunal to decide between them, to act upon oath, and who ought not to be the particular friends or enemies of either. On this subject I shall hereafter more fully remark, and at present take some little notice of an observation that has been made, and which, with the subject of privileges, should be considered as preliminary to those that are necessary on the liberty of the press. It is, that if Congress possessed the power contemplated by this resolution, it was their duty to pass some legislative act respecting it, declaring the manner in which it should be executed, and designating the officer or officers who were to do so; that the people would then know the manner in which offenders were to be summoned or apprehended, or brought before them; but this should have been done when no particular case had occurred, and was before them, and that no proceeding of privileges in any case like the present, ought to be had until such act was passed, and the mode of proceedings clearly ascertained; that if the power was given by the constitution, until Congress had legislated upon it, in the manner above mentioned, it was extremely improper for either branch to attempt to exercise it; that a judiciary department was erected by the constitution, but that Congress was obliged to legislate upon it, and detail its duties, and provide for the appointment of officers to execute them, before the powers of that department could be properly exercised: and that if Congress possessed the power some gentlemen contend for on this point, they must previously legislate on it in the same manner. On this subject there can be no doubt of the propriety of this objection, if Congress possessed the power; and their never having passed such a law is a strong proof, that whatever opinions either branches may have entertained, that both did not suppose they possessed this power, or certainly they would have legislated upon it. If they did not doubt, or were not sure they did not possess this authority, why did they not legislate on it at the time they did on all such other parts of their privileges and powers as they conceived they had authority to act on. They (that is, Congress) passed an act on the subject of the election of members of the House of Representatives, of which that House are the sole judges; each House detailed, in a particular manner, their rules and modes of proceeding--this was all that was necessary to be detailed. The remainder of the clause respecting privileges is so express on the subjects of privilege from arrest, government of members, and expulsion, that every civil officer in the United States, and every man who has the least knowledge, cannot misunderstand them. I assert, that it was the design of the constitution, and that not only its spirit, but letter, warrant me in the assertion, that it never was intended to give Congress, or either branch, any but specified, and those very limited, privileges indeed. They well knew how oppressively the power of undefined privileges had been exercised in Great Britain, and were determined no such authority should ever be exercised here. They knew that in free countries very few privileges were necessary to the undisturbed exercise of legislative duties, and those few only they determined that Congress should possess; they never meant that the body who ought to be the purest, and the least in want of shelter from the operation of laws equally affecting all their fellow-citizens, should be able to avoid them; they therefore not only intended, but did confine their privileges within the narrow limits mentioned in the constitution. And here, sir, let me ask, are not these privileges all that are necessary? They have complete authority to keep order and decorum within their own chamber, to clear the galleries if an audience are unruly, and to punish their own members, to take care that no arrests, except for treason, felony, or breach of the peace, shall keep their members from their duty, and for all libellous attacks or misrepresentations the laws are open to them; and if unjustly attacked, no doubt the juries of their countrymen, who are interested to preserve the dignity and independence of their Legislature, will give them the most ample satisfaction. But it is said, "each branch must possess this power to punish for breach of privileges, which they must judge of as circumstances may arise and require; that every legislative body, or branch of one, possesses an inherent right to protect itself, which must be exercised as their discretion directs, because it may frequently be necessary to exercise it immediately, when the public safety would make it impossible to wait for reference to other bodies, or tribunals," and, "that if a man was approaching to knock you down, it would be absurd, instead of defending yourself, to deliberate whether you were authorized to do so; that you must act instantly, as the occasion demands; and that as each individual in society possesses this inherent right to protect himself, so does each branch of the Legislature." This, as far I have been able to collect, is the sum of the reasoning on this subject; and it is said to be strengthened by the practice and proceedings of the British Parliament, and the Colonial Legislatures, before the Revolution, and most of the State Legislatures since, and is now universally received as the true doctrine on this subject. That it is the doctrine and practice of the British Parliament, I will allow; but it was because the doctrines there held are utterly inadmissible in a free Government; and to prevent any influence from them, and their precedents, and the improper practice of the Colonial and State Legislatures, that this limitation of the privileges of Congress was here purposely introduced. Will any man undertake to say, that the privilege of the Parliament of Great Britain ought to be that of the Congress of this country? Do you suppose that all their members, and their property, and even their servants, should be protected from arrests during the whole time they are elected for, many of them for twenty years together, or during their lives? Would it be thought safe in this country that a small majority of a small body, or single branch of a Legislature, should claim and exercise the authority, whenever they please, to send and seize any man in your community, however important, and confine him in a loathsome dungeon, for six months together, merely because he has differed with them in politics, and criticised, as he had a right to do, on their legislative acts? Is it a pleasant sight to our citizens, to see sergeants-at-arms, with their rods, inquisitorially seizing freemen, and dragging them to your bar, and there exhibiting them as criminals, or spectacles to crowded audiences, merely because they thought they had a right to attack, by argument, proceedings which appeared to them unconstitutional? Can you have the most distant idea, that your constitution could have intended thus for ever to shut the door of inquiry, and make it so penal and dangerous to your citizens that none of them will dare to venture it? Is it possible for any man to read the constitution with attention, and then suppose that such could have been its design? So far from being so, I do assert that great pains were taken specially to guard against the exercise of any such power, and I have no doubt that the Congress of 1798 must have been of this opinion, or else why did they pass the 2d section of the sedition law? Why did they (improperly in my opinion, because it ought to belong to the State judicials)--why did they make the crime of writing, uttering, publishing, or printing any libel against the President, or either branch of Congress, triable, and punishable, in the federal courts, if either branch possessed this power themselves? If they have the right to punish libels, or false, or malicious attacks, why include them in this act? Their power extends over the whole of the Union, and can reach any inhabitant, in any State. Is it not therefore clear, that by giving this authority to the federal judges, to try and punish for written or printed attacks on either branch of Congress, that the Congress of 1798 did not suppose, for attacks of this kind, made in the papers, there was any other mode of punishment than by a trial, where the person charged would have the benefit of trial by jury? Surely this must have been their opinion, or they would not have had two different modes of trial and punishment for the same offence. They never would have erected a new jurisdiction to include a crime, when one sufficiently strong and energetic existed already; but to prove this still more clearly, let us inquire, why the constitution should have been so attentive to each branch of Congress, so jealous of their privileges, and have shown so little to the President of the United States in this respect. Why should the individual members of either branch, or either branch itself, have more privileges than him? He is himself, as far as his qualified negative goes, a branch of the Legislature; he is, besides, your Executive, he is the sword of the law, and does he possess any privileges like these? If a man meets him walking alone in the streets and insults him, or if one of ruffian manners should enter his house, and even abuse him there, has your President any privileges like these? Can he commit and imprison without a trial? No, sir, he must resort to the laws for satisfaction, where the person charged with the outrage will be heard, and where each party will have justice done them, by men who ought to be so impartially summoned as that no undue bias will be found, when they come to decide. No privilege of this kind was intended for your Executive, nor any except that which I have mentioned for your Legislature. The Convention which formed the constitution well knew that this was an important point, and no subject had been more abused than privilege. They therefore determined to set the example, in merely limiting privilege to what was necessary, and no more. Look into the constitutions of all the States which have been formed since the federal constitution, and see if they have not done the same. The Constitution of South Carolina is remarkably explicit and limited on this subject: It says, "that each House may punish by imprisonment, during its sitting, any person not a member, who shall be guilty of disrespect to the House, by any disorderly or contemptuous behavior in its presence, or who, during the time of its sitting, shall threaten harm to the body or estate of any member, for any thing said in either House; or who shall assault any of them therefor; or who shall assault or arrest any witness or other person, ordered to attend the House, in his going to or returning therefrom; or who shall rescue any person arrested by order of the House." These are all privileges, except privilege from arrest or seizure of estate, mentioned in that constitution; and the slightest inspection at once shows, that except for disrespect or contemptuous conduct, in its presence, or threatening or assaulting a member for his conduct in the House, that no other authority is given to punish--not a word is said about libels, or attacks by writing or printing, on their conduct. It is well known that our constitution intended the press to be free; to be the means of communicating the acts of the Government, and of commenting on them where necessary; that it supposes that majorities will sometimes exist, who may wish to overstep the boundaries they ought not to pass; and, therefore, it provides for them, in the hands of the people, this wholesome correction of the press, which those who resort to must use at their peril. If they use it properly, animadvert with propriety, and really point out defects or usurpations in the Government, the people will applaud their zeal, and the laws will support them in their exertions; but if they falsely or maliciously misrepresent, the law will become the avenger of the Government, and unprejudiced juries be the means of punishing calumniators. This is the true footing upon which legislative privilege should be put in every Government, and it is the one on which it is now placed in the United States. By this you give sufficient power to punish, for any improper thing done in their presence, which may disturb the order of either House, or violate the decorum of their proceedings; and for any supposed slanderous attack, the tenderness with which you ought to touch the constitutional right of the public to inquire into public affairs, and the delicate subject of trial by jury, will always necessarily oblige you to recur to the latter for redress and satisfaction. If it was proper, on subjects like this, to refer to British precedents, I could mention a recent one, which is exactly in point; and shows, that even in the English House of Commons, the doctrine I contend for prevails; it is, that in all cases of libels against either House, the remedy must be by prosecution by the Attorney General, and trial by jury. In Stockdale's case, Doctor Logan published charges against the House of Commons, in which he stated, in a variety of ways, that they had been guilty of great cruelty to Mr. Hastings, Mr. Pitt and Mr. Fox, and all sides of the House agreed that it was a libel; but, instead of ordering him before the House, they entered into resolutions directing the Attorney General to prosecute. It appears to me so clear, that for all libels or attacks on either branch of the Legislature, in writing or in print, the mode must be by prosecution, that I do not know it is necessary to trouble you at this time with any further reasoning on that head; I will therefore only mention one more, and then conclude this part of my subject: it is, that from the nature of our Government, where our PRESIDENT is elective, and obliged to attend to public opinion, even if he wishes to do so, he will never venture on those bold measures, which hereditary Executives sometimes attempt. If, then, there should be some men, whose political talents he is afraid of, or whose inquiries into his administration give him uneasiness, an Executive, instead of venturing on any such measure himself, if he can obtain a majority in either branch, will easily discover some mode of having this man's political iniquities construed into breaches of privilege; and, under cover of his friends' influence, immure and silence, during a whole session, and for half a year, a man, whose arguments were perhaps unanswerable, and whose system may be the one which your councils may the next year adopt. I am far from supposing that we are yet so much advanced in the arts and intrigues of older Governments as to make this probable at present; it is not however impossible, and must be guarded against. The next question is, that of the liberty of the press, as applying to these defined privileges; and as it is the first time this sacred subject has been before either House on a question of privilege, I shall expect your indulgence in making some remarks on it. I shall be very short; for however fruitful the subject is, yet so much has been said of it elsewhere, and you must be so well acquainted with it, that it will be necessary for me barely to state some general principles, as they apply to the question before you. I feel a pride in saying that in no country has the press ever been as free as in United America; however clouded or interrupted this freedom has, in my opinion, lately been, I entertain a hope that in a few months all its shackles will be removed, and that the emotions they have occasioned in the public mind will for ever forbid its being thus fettered again. To no subject have I ever more carefully applied, than what ought in a well regulated Government to be the freedom of the press. I well know that where the press is not free, liberty is but a name, and Government a mockery. I have therefore endeavored to form, in my own mind, what ought to be the true standard of the freedom of the press with us; and I have no doubt that it consists in this: That the printing press shall be free to every person who undertakes to examine the proceedings of the Legislature, or any branch of the Government, and no law shall ever be made to restrain the right thereof; that the free communication of thoughts and opinions is one of the most invaluable rights of man; and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty; that in prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the _Jury_ shall have a right to determine the law, and the fact, under the direction of the court, as in other cases. This is the situation in which the Constitution of Pennsylvania has placed the press; and it is the true and safe one, upon which it ought to be placed in every free Government. Here the right to investigate the conduct of the Legislature, and of official men, is not only recognized and established, but the constitution seems to require it as a duty, from the citizens. It says to them, these are men periodically delegated by you to manage your public concerns--to you, and you alone, they are accountable for their conduct; nor can you know whether it is meritorious, or otherwise, but by having the right to examine into it, and by freely and frequently exercising that right. And would it not be the strangest thing in the world, when the constitution not only establishes the right, but calls upon the citizens to exercise it with alertness, and by no means to neglect it, that if they should happen to displease a branch of the Legislature, whose conduct they have censured, that they should be delivered immediately into the power of this branch, to be dealt with as they please; that the men they had accused, and whom they had, by the constitution, a right to accuse, should become their judges? Would not this be a most extraordinary doctrine? Would it not involve an inconsistency, that ought not certainly to be chargeable upon the framers of the constitution? In private cases of slander, or defamation, would you suffer the person abused, or any near connection of his, or person interested in the event of the suit, to be on the jury? Certainly not. How much more glaringly improper then would it be, in cases of a public nature, where the acts of a legislative branch are censured, and where the charge has been openly and honorably brought forward, to commit the person who produced it, at once, to the power of the body whose acts he has condemned! Let us suppose, that in the exercise of this invaluable right, some disinterested and independent man, urged by the most honorable and patriotic motives, should conceive a branch of the Legislature overstepping the bounds of the constitution, and going into measures destructive of our rights, or injurious to our interests; that this man should be an important member of your community, of known integrity and independence of situation and character, that he should have no private ends of his own to answer, or any thing in view but the public good; that he has embarked in the investigation at the entreaty of a numerous and respectable part of the community, who wished the public mind to be so fairly and fully possessed of facts, and reasonings on them, as to be able, at the next election, to determine with precision and fairness on the conduct of their Legislature; under these circumstances would it be proper to deliver this man into the power of a body whom he has charged with misbehavior, or a departure from constitutional principles? Or would it not be more fair, would it not wear more the appearance of impartiality in case an examination was necessary into the nature of his charges, or the manner in which he has made them, and the expressions he has used, to have a distinct and unprejudiced body, a jury acting under oath, to decide between them? As far as I know any thing of the principles of natural justice, I should suppose there was no question on the subject, and no other opinion ought to be entertained, and that without it there can be no such liberty of the press, or freedom of inquiry, as the constitution intends. And here, sir, let it be asked, why should a Government that means well, or is confident in its uprightness and ability, ever fear the press? It should be to them a source of great pleasure, in reflecting that they had so excellent a mode of diffusing a knowledge of their acts, well knowing, if they were unjustly attacked, it gave them the most ample means of defence; and that if it became immoderate and licentious, the laws were always sufficiently energetic to punish it. How many individuals when attacked or slandered, have rejoiced that such a defence has been afforded them; and how indispensable is its free investigation to the removal of doubts which sometimes crowd about the characters of public bodies, or men, and which it is necessary to remove! Public bodies are public property; and so indeed are public men; who have in any degree rendered themselves conspicuous by their exertions: few of these, if ever there was one, can expect to be without personal enemies; these will be in proportion to the talents of the man they dislike, and his consequence with the people. Men who engage in public life, or are members of legislative bodies, must expect to be exposed to anonymous, and sometimes avowed attacks, on their principles and opinions. Their best shield will be an upright and able conduct. The best informed will sometimes err; but when their intentions are pure, an enlightened nation will easily discover it, and pardon the mistake. With the shield of conscious rectitude, a Government can never dread the press. It is only in States where the happiness of the people is not the end of Government, or where an individual or a few possess the whole authority, that the press is not agreeable to them. Hence, in despotisms, it is generally odious to the sovereign, and strictly limited. We have, however, found, even among them, a latitude which proves that in the most despotic countries, where the sovereign is conscious of using his power for the good of the people, he fears not the slanders of the malicious. It is remarked of Frederic of Prussia, that few princes were more libelled by their subjects; but that in no country were libels more disregarded: that few, if any, instances ever occurred of his endeavoring to discover the authors, or to crush, by punishment, the spirit of inquiry which literary pursuits had diffused among his subjects. A more remarkable instance is, that of the Empress of Russia; in giving her directions respecting libels, she says, "great care ought to be taken how we extend this crime; representing to ourselves the danger of debasing the human mind by restraint and oppression, which can produce nothing but ignorance, and must cramp and depress the rising efforts of genius." I did not expect to have been obliged ever to have introduced on this floor, Frederic or the Empress, as examples on the subject of the press. The love of liberty, or a wish to countenance the spirit of political inquiry, was not certainly among the reasons for allowing this latitude; but they at once discovered, that if they wished to govern an enlightened people, the spirit of inquiry must be unshackled, and an extensive range given to literary productions. Among the ancients we find Tiberius, and Trajan, and Titus, allowing absolute liberty of speech and writing, suppressing the laws against seditious words and writings, and punishing informers. But the most remarkable instances we have, that freedom of speech and writing are essential to the liberty and greatness of a people, are those of Athens and Rome, when republics: in speaking of them, a celebrated writer says, "that democracy is the nurse of genius, and the greatest encourager of sublimity." The fact is evident from these republics. In Greece, Athens was most democratical, and a state of the greatest liberty; and hence it was, according to Paterculus, "that eloquence flourished in greater force and plenty in that city alone than in all Greece besides; insomuch, (says he,) although the bodies of the people were dispersed into other cities, yet you would think their souls and their genius to have been pent up within the precincts of Athens." So the city of Rome was not only the seat of liberty and empire, but of true wit and exalted genius. The Roman power outlived, it is true, for a considerable time, its liberty, but the freedom of speech and writing was gone, and wit and genius could not long survive them. How applicable, sir, are these instances, and how incumbent on us is it, if we mean to keep this country a Republic, to cherish the freedom of the press, to remember that without it seldom any thing great or noble can be produced, that to shackle it is to chain the mind, and stifle the seeds of every thing that is generous and amiable! That, in the words of a celebrated divine, "reason and freedom are our own, and given to continue so; we are to use, but cannot resign them, without rebelling against Him who gave them; that to invade them is to encroach on the privileges we receive from God, and traverse the designs of Infinite Goodness." We should remember the danger of precedents, and be careful, as this is the first discussion we have had on this subject, not to establish improper ones, or lay a foundation for that debasement of the mind, which always follows the depression of the press. It is important here to remind you of the anxiety of the State Legislatures in insisting upon the doors of the Senate being thrown open, and their legislative proceedings exposed, like the other branch, to public view. It was done unquestionably with the intent, that minutes of your debates should be taken, and all your proceedings subject to the inspection of such of our citizens as choose to attend; but as, from the distance, very few of the States could have citizens attending, the great object certainly must have been to have notes taken of the debates, and printed in the gazettes; that through that channel information may be transmitted to every part of the Union, and thus the States become, in the best manner they are able, judges of the talents, as well as conduct and opinions of their members. That this is of infinite importance, in a representative government, no man will deny; but if a printer is to be seized, and dragged to your bar, and perhaps imprisoned for a mistake, that a law has passed when it is only its second reading, or that a member of a committee was not summoned to attend the meeting of the committee, when he was, and did attend, or for any mistake of this kind, I ask you what printer or reporter will take your debates? Who will venture on it; because, where will you draw the line? Will you require that each reporter shall give every word and observation with exactness, and that the smallest deviation from what was said on the orders or proceedings of the House, shall subject him to the odium, and perhaps expense, of a trial at your bar, which must accrue if he has counsel? If this is the case, no reporter will certainly attempt to take your debates, and your doors may just as well be shut again. But, say gentlemen, it is not only for those assertions which you have mentioned, but for the preceding and accompanying observations respecting the views and proceedings of the Senate, and of the members of that body in their official capacity, for which we think this examination requisite. I have already said, in the commencement of my argument, that no man can justify the licentiousness of the press, and that it is perhaps to be lamented that so much invective is used in the papers on both sides of the question; but that as most of these observations are on things that did not happen in the Senate room, and many of them are stated to have occurred near two years ago, and that as much more violent abuse against the Senate was published in the Federal paper styled the Gazette of the United States, on the 13th day of February, and no notice has been taken of it, that it was best, upon this occasion, to suffer the present to pass unnoticed likewise: that it is astonishing the honorable mover from Connecticut, who seems to feel so much for the dignity and character of the Senate on this occasion, did not, on that of the abuse which was heaped on it for consenting to stop the enlistment for the army, have similar feelings; and that as he consented to suffer those animadversions to pass, it would certainly be doing no great violence to his feelings to deal with the present in the same way: that perhaps the best mode to lessen the importance of a paper was, not to treat its observations with either too much notice or severity; that in politics, as in religion, persecution seldom made converts; that if I ever had the inclination to raise the importance of a press, and bring it into celebrity and notice, I would wish it persecuted, for I never saw a press in a free Government persecuted but it rose immediately. Attack a press for its political publications, you instantly convince the people that it is dreaded, and must be of great importance, and attract their attention. We can never forget the memorable cases of _Sacheveral_ and _Wilkes_, or how much the English nation was agitated by them, and we ought to be convinced, that in every country having the least semblance of freedom, the same consequences will always flow from the same measures. I request of you again to consider the importance of the question, how far, in the case of libels, or attacks in the papers, for their political opinions, any single branch ought to possess the power, perhaps in a moment of passion and resentment, to decide on what is to affect the personal liberty of a citizen? Whether it is consistent with the nature of our Government, that a single branch, without check or control, should become judges in their own case? Whether any citizen charged with a crime, for which he may be punished by the temporary loss of liberty, is not entitled, by the constitution, to "a speedy trial by an impartial jury?" And, whether to deny it, in this instance, would not be to interfere with that provision of the constitution? For my own part, I have no doubt of it; and, feeling as I always do, most jealous for the character of this branch, I am apprehensive, should we proceed in this measure, it may occasion unpleasant observations. Some of its enemies may perhaps say, that no power is so arbitrary as that of the unlimited authority of a single branch, acting in its own cause, revenging its own affronts, and deciding, perhaps more by its own passions and feelings, than by the justice of the case: that a power of this kind is worse than a despotism; because there the despot is in some measure checked by his individual responsibility; for the act being the official act of the body, is that sort of protection under which an individual despot cannot shelter himself from the public odium--should the measure be oppressive, he must alone meet the general censure, which, thus concentrated, strikes with force; but when divided among a number, must in a great measure lose its effect. That, in every view of the subject, we must be convinced that for libels, or printed attacks, on either branch, the constitution must have intended to give the person charged the right of trial by a jury, so collected that a cool and unprejudiced examination might take place, and justice be done to all parties; that this I had shown to be the case, in the instance I had mentioned, in the House of Commons of Great Britain; and we surely would not wish the press should be more free, or the freedom of inquiry into legislative conduct, more unshackled in England than with us. Look, sir, into the abuse that is daily poured by the papers of that country upon their Parliament and Administration, and upon Mr. Pitt and Mr. Fox, and all their leading members; and yet we see no proceedings of this kind. Indeed, if we were to believe Montesquieu, and the writers since him, it is to the freedom of the press alone England owes the portion of liberty she enjoys--it is the ladder by which she rose, and that which she will struggle most to preserve. I devoutly hope she will always keep it, and that we shall likewise maintain it for ever in its utmost purity. Mr. P. concluded by adding, that if the Senate went into a consideration of his motion, instead of that of the gentleman from Connecticut, (Mr. TRACY,) they would probably avoid that part of the discussion which would be least agreeable, as the subject would be clear from that locality and personality which attached to the first, and a decision would take place without any reference to this or that particular printer; but if the gentleman would postpone the question, Mr. P. consented to let his motion lie on the table, with a view to its being printed for the use of the members, that so both propositions might be compared and considered with more attention than could be done in any other way. Mr. COCKE declared that the object which he had in view was nothing more nor less than to rid the House of the business altogether. He was not inclined to appoint any special time for the discussion, as the worthy gentleman from South Carolina (Mr. PINCKNEY) had requested. He had no idea that it was supposed he had the saving or exoneration of any printer in view; he had no such thing; but he wished to save the reputation of this body, which he thought was placed in jeopardy by the Connecticut motion. Here it is proposed to inquire and examine of and into this, that, and the other--to bring one printer here, and generally all persons and papers, who and whatever, just as your committee may think fit. Suppose this power is doubted? Suppose the persons deny your power--how are your committee to enforce their mandates? Suppose your courts of law claim cognizance as a case of libel, are you to have two prosecutions and two trials for the same offence? Surely, surely, your committee will have to retire from the untenable ground, and the defeat will recoil with disgrace upon those of us who attempt to assume powers neither constitutional in themselves, nor just, even if they were constitutional. You can call upon somebody--but who?--to inquire who is the editor of the Aurora. You are to inquire how he became possessed of a certain bill which he published; what kind of an inquiry is this? How he procured the sight of a bill, while it was pending in Senate. Why, is there any crime in printing a minute of our transactions? Your bills are printed by your own order, for your use, and for the information of the other House; two hundred copies or more are circulated without any injunction of secrecy; they are sent off into every State of the Union; and are you going to make inquiry how the editor of the Aurora got to see one of them? Why, are not your gallery doors open, and cannot a bill which has been read in public be possibly remembered, at least, cannot it be taken down in short-hand? and will you punish every man who shall repeat, print, or publish what is made public on this floor? Suppose the editor of the Aurora declines to inform your committee of the mode through which he obtains his information; he says it is convenient and useful to him, but his prior engagements do not permit him to divulge it to you; will you punish him for contempt? But suppose you possessed of the physical power necessary to procure the information you require by an application of the torture; while you are straining his muscles and dislocating his joints, what becomes of the grand palladium of American freedom? Where is the liberty of the press, which is secured to the citizens of the Union against Federal usurpation? The constitution declares that you shall not infringe upon the liberty of the press; and a power expressly denied to the whole Government, a single branch may not assume. Here Mr. C. was called to order by Mr. BINGHAM, of Pennsylvania, who inquired what the liberty of the press had to do on a question of postponement? He believed, while the motion for postponement was under consideration, all debate on the merits of the main question to be out of order. It was contended to be in order to object on a postponement generally to the original motion, for an argument tending to defeat the original motion is reason for a general postponement. Mr. COCKE proceeded, and said he was glad to find that the freedom of debate in this House was not to be destroyed, though it might be interrupted; and he hoped that the freedom of the press would never be subverted while the Government of the country rested upon the Republican principle of representation. He admitted there were a great many ill-natured things said by many of our American presses, but that should never induce him to run the risk of destroying the most valuable and effectual bulwark for maintaining us free and independent, by using an instrument more fit to cut down the trunk of a tree, than to prune it of its tendril luxuriances. What was the engine now brought out against this freedom--an engine possessed of all the powers necessary to ensure its success? A printer is to be charged, is to be tried, judged of, and executed, by a body he has offended. Where will you find men of nerve that will risk certain ruin? Such may arise when the press is in danger. It was under these impressions that he wished to get rid of the business altogether. Mr. TRACY, of Connecticut, did not wish to press the business; indeed his conduct had manifested this intention, for the original motion had been suffered to lie on the table a longer term than usual before it was called up, but even now when it was called up he did not wish to hurry it through. He should not refuse a moderate delay, but he hoped the motion from Tennessee would not prevail, as it went to destroy the object without any further consideration. In answer to what fell from the gentleman from Tennessee, he would say, that the objections he had made did not all of them apply, and if there was any which did apply, amendments could be made so as to conform them to the sense of the Senate. He wished gentlemen would attend to the words of the resolution, and they would find that they did not carry them beyond what was prudent, mild, and proper. The committee are desired to inquire who is the editor of the Aurora; this will appear to be a proper inquiry, for the person is not publicly known; the imprint declares the paper to be published for the heirs of Benjamin Franklin Bache, but we do not know who are the heirs. The gentleman has told us it is no crime to publish the doings of this body; agreed, but is it nothing to publish untruths respecting the official conduct of the members of this body? is it no crime to publish a bill while before this House? But are printers at liberty to tell lies about our transactions? The Aurora says, that the bill which it published had passed the Senate; this every member knows to be contrary to the fact. The bill has not even to the present moment passed this body, it is still on your table liable to recommitment, amendment, or rejection. Asking the editor how he came to print this falsehood, does not go to examine into the private mode by which conveyance of intelligence is made to that office; there can be no real intelligence, it being a falsehood. But suppose we have no power over this editor, because the press is free; suppose we cannot punish him for his slander, calumny, and falsehood, perhaps the inquiry may lead us to discover some persons whom we can punish; will it be said that the constitution is an impediment in our way to punish one of our own members, if he should be found guilty of abusing the confidence of his situation? At least we can exercise the power of removing one of our officers, if we should convict him of a secret league to transmit intelligence which is confidentially intrusted to his care. He did not mean to insinuate that any improper mode was used in conveying this intelligence; it might appear that the whole circumstance was a mere unintentional error; if so he should not go farther; but yet the printer could hardly have made the subsequent mistake in relation to the gentleman from South Carolina, in declaring that he had never been consulted by the committee on Mr. Ross's bill; there was something in this calculated to produce an effect upon the public mind. He insinuates that the business of the Senate is done in caucuses, into which the gentleman was not permitted to enter; for if he had, it is supposed he might have detected and defeated the mischiefs which are working against the public welfare. This is an abandoned slander, as is well known to every member of the House, for Mr. PINCKNEY did attend not one meeting only, as the editor of the Aurora squeezed out some days subsequent to his first licentious publication, but he did attend every meeting, as he has candidly and honorably avowed in his place. The gentlemen had declared themselves the champions of the press; but surely gentlemen will not advocate such liberty as this--the liberty of publishing nothing but lies and falsehood. If by the liberty of the press is meant the publication of truth and just political information, it was proper to be supported; but he was desirous of maintaining, along with the liberty of the press, the liberty of the citizens, and the security of the Government; he was not for sacrificing these latter objects to the licentiousness of the press. He was not inclined to enter into a newspaper controversy to maintain the dignity and reputation of the Senate, nor did he think that gentlemen appreciated their own standing in society when they referred the individual members of this body to such a mode of defence against the shafts of calumny which a daring editor might hurl against them individually. Mr. BLOODWORTH, of North Carolina, doubted the power of the Senate to take cognizance of the conduct of members in communicating with their constituents, much less to punish them for publishing circumstances respecting which no injunction of secrecy had been imposed. He, however, assured the Senate that he had not given the editor of the Aurora any information on the subject before them, or indeed on any other, for the editor was a stranger to him; nor did he know that he ever called, at that printing office more than once or twice in his life. He hoped that the business would be postponed for the present, and he should have no objection to its being taken up at a future day, when gentlemen might be better prepared to meet it. Mr. PAINE, of Vermont, declared himself against the postponement, nor did he think that the motion of Mr. PINCKNEY was so inconsistent with the motion before the House as to render a postponement necessary; he thought the committee might inquire, and although the gentleman would stop, by his proposition, from proceeding in case it turned out to be a fabrication of the editor of the Aurora, yet if it should be found not a fabrication of his, but that of a member or an officer of the House, it was admitted they might progress, without infringing the sacred liberty of the press. Suppose that some person in the gallery should have furnished the spurious matter--and that may possibly be the case--will the sacred liberty of the press be violated if we order the doorkeeper to turn him out, and refuse him access in future? He thought the resolutions might be amended so as to give greater satisfaction than they do at present; for his own part he was not willing to declare all at present which they contained. He thought the business would be simplified if the committee were directed to consider and report what measures would be proper to adopt in respect to a publication containing various untruths of the proceedings of the Senate, and if the question of postponement was lost he meant to move several amendments for that purpose. Mr. MASON, of Virginia, had no objection to meet the question at the present moment, but he thought it of such importance, both to the Senate and the citizens of the United States, that it should be taken up and discussed in a solemn and serious manner; not hastily and lightly, as some gentlemen seemed to think who were opposed to the postponement for a few days; if, however, the opposition to the postponement was persisted in, he had no doubt but the subject would prove itself well worth a discussion of several days, and that the ultimate decision would not be made till a period more remote than that moved for by his friend from South Carolina. He therefore recommended to gentlemen to explore well the ground which the motion of the gentleman from Connecticut had taken, and consider seriously of the consequences to which they would be led in pursuing their object. What was to be the course of their proceeding? What were the embarrassments likely to arise therein? He called the House to view the delicacy of the situation in which they would be involved while defining their newly discovered privileges and subverting the old acknowledged privileges of the liberty of the press; he said the delicacy of their situation, because he considered it a delicate one, for he was far from believing that the privileges of the Senate were as unlimited as the gentleman from Connecticut contended they were; if so, and they proceed to touch the liberty of the press, which they may discover in the end to be secured against the invasion, they will be compelled to retrace every step they are now taking, which will neither redound to their honor nor discernment. They should be careful how they expose themselves to popular scrutiny in cases respecting their own power, for the public mind had been already considerably agitated, at what many conceived to be an unconstitutional exercise of power. If, session after session, attempts were made to fetter the freedom of the press, the people of the United States would watch with anxious regard every movement of this body. A measure which originated in the Senate, and was subsequently acceded to by the other branch of the Legislature, had been just ground of alarm. It is no wonder that they watch our bills as well as our laws, for it must be recollected by many of the gentlemen who hear me, that the bill called the Sedition Bill was first introduced here, and that, instead of being what it afterwards became, it was a bill more particularly to define treason and sedition. The good sense of the House, during the time it was upon the table and undergoing a political dissection, cut off from it many of those monstrous excrescences which at first disfigured it, and at last trimmed it into a shapely form; but after all it was removed below stairs in a condition not fit to meet the eye of our constituents--even obliged to undergo a decapitation; the head or the title of it was struck off, and instead of being a bill defining treason--which is a thing totally out of our power, the constitution having declared in what alone treason should consist--instead of being denominated a bill against sedition, it took the obnoxious head of being a bill to amend the law for punishing certain crimes against the United States. Mr. ANDERSON, of Tennessee, did not rise with an intention of entering into the merits of the general question, as to the extent of the privileges of the Senate, which he conceived to be of great moment, but merely to remark, as gentlemen alleged that the public mind was already agitated on the subject, the postponement would tend to increase the degree of agitation, which he conceived it was the wish of gentlemen on both sides to have allayed as soon as possible. He therefore concluded that it would be better to go on with the business and come as soon as possible to a decision. One gentleman had said it ought to go to the judicial courts, and that the Attorney General should be directed to prosecute: well, then, that gentleman should give his consent to send the business to a committee, in order to inquire whether the case would warrant this interference. Mr. READ, of South Carolina, would not oppose the motion of his honorable colleague for a postponement, if he had required it on his own account, or if its being negatived would prevent him from bringing forward the preamble and resolution he had read in his place, and at a proper time of having them discussed; but neither of these circumstances were urged; therefore, as his colleague neither required time for preparation nor would be prevented from offering and supporting the intended amendment, he should vote against the postponement. Mr. DAYTON had the highest confidence in the honor of the gentleman from South Carolina, (Mr. PINCKNEY,) and he never suffered himself to doubt of the truth of the declaration which had been made. He thought the resolutions might be varied so as to get rid of the idea which the gentleman objected to, in respect to the motion having been brought forward at his instance; and might be amended as suggested by the gentleman from Vermont, (Mr. PAINE,) so as to reconcile it still more to the sentiments of the Senate. This being his view of the subject, he wished the business to proceed, and should therefore vote against the postponement. The question on postponing till Tuesday next, was now put, and the yeas and nays being called, stood yeas 9, nays 19, as follows: YEAS.--Messrs. Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Mason, Nicholas, and Pinckney. NAYS.--Messrs. Anderson, Bingham, Chipman, Dayton, Foster, Goodhue, Greene, Gunn, Hillhouse, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, Watson and Wells. So the motion was lost. Mr. NICHOLAS, of Virginia, wished to ask for information. Was it intended by this resolution to charge the committee with inquiring into a breach of privilege as it respected the majority of this body? For the resolution itself furnished no correct idea on this point. He wished also to know whether it was intended that the Senate should declare that the publication was a breach of privilege? Mr. TRACY, of Connecticut, said that if the gentleman wished for information from him, he would endeavor to give it. He conceived it would be better to pursue the mode of inquiry in the first instance, through the intervention of a committee, and not make at once a decision whether the publication was or was not a breach of privilege; and further, that the committee should report to the Senate what other matters were the proper subjects for the Senate's inquiry. He would not undertake to say at this time whether there was a breach of privilege at all, or whether that breach was in respect to a majority of the House, or of the privilege of a single member. Mr. MARSHALL, of Kentucky, was of opinion that if the subject itself was a proper one to be inquired into, then the mode was well devised, and one liable to few or no objections; but there was another circumstance to which he begged permission to call the attention of the Senate. He observed that the resolution pointed only to one object, and that was the publications in the Aurora; he did not think this went far enough, if it was intended to be any thing more than a party manoeuvre. If gentlemen meant to defend the honor of this body, they should avoid any thing like partiality, and direct their inquiry to all breaches of privilege, by publications in newspapers, let their publishers be whom they might. Believing that the gentlemen were serious in the present undertaking, he wished them to give it the appearance of impartiality without which it would reflect disgrace on their proceedings. Gentlemen have complained of the slander and calumny thrown upon them by the publications in the Aurora, but, however detestable they might be, he held in his hand one still more vile and flagrant. He would read it, and then move to amend the resolution before the House by adding that the committee be directed to inquire who is the editor of the United States Gazette, and by what authority he published in that paper the following paragraphs. It passed in the negative--yeas 11, nays 16, as follows: YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Langdon, Lloyd, Marshall, Mason, Nicholas, and Pinckney. NAYS.--Messrs. Bingham, Chipman, Dayton, Foster, Greene, Gunn, Hillhouse, Laurance, Livermore, Paine, Read, Ross, Schureman, Tracy, Watson, and Wells. _The Judiciary._ Agreeably to notice given yesterday, Mr. PINCKNEY had leave to bring in a bill to amend the act entitled "An act to establish the Judicial Courts of the United States"; which was read and ordered to the second reading. On introducing the above bill Mr. PINCKNEY addressed the chair as follows: Mr. PRESIDENT: When I first had the honor of addressing you on this subject it appeared to me necessary to move an amendment to the constitution; on reflection, however, I am since convinced that the more regular and expeditious mode would be to move an amendment to the law establishing the Judicial Courts of the United States--by this means the law may be passed during the present session, and we shall the more readily obtain the limitation we contend for. As the Judiciary is among the most important departments in our Government, as it reaches every situation in society--neither the rich, the honored, nor the humble, being without its influence or above its control--as it is the department to which not only the lives and fortunes, but the characters of our citizens are peculiarly intrusted, it becomes us to be extremely careful that the Judges should not only be able and honest men, but independent in their situation. Our constitution has in some degree secured their independence by giving them permanent salaries, and rendering them ineligible to the Legislature; but in vain will we consider them independent, in vain may we suppose their opinion beyond the control or interference of the Executive, until we have determined it shall not be in his power to give them additional offices and emoluments, while Judges; until, in short, we confine them wholly to their duties as Judges, and teach them to believe that in the execution of the laws they should consider themselves as little obliged to please the President, or to fear his disapprobation, as that of any other man in the Government. This can only be done by preventing them accepting other offices, while they continue as Judges, and thus depriving him of the power of heaping upon them additional favors and emoluments. It is an established maxim, and I hope will for ever remain so, that the Legislature and Judiciary should be as distinct as the nature of our Government will admit; that is, that the same men shall not, in a deliberative capacity, agree to measures which they shall afterwards have a right to explain and decide upon in a judicial one. The reason is obvious; that the Judges should, in a calm and unprejudiced manner, explain what the law literally is, and not what it ought to be; that they should not be allowed to carry upon the bench those passions and prejudices which too frequently prevail in the adoption and formation of legislative acts and treaties, and which never fail to give an irresistible bias to the opinions of a Judge who has been concerned in making them. The truth of this reasoning is now so generally conceded, that there is not a man who knows any thing of government that will attempt to controvert it; the constitutions of all the States have sanctioned it, and if the opinions of the Federal Convention ought to have weight, they so strongly insisted upon it as even to refuse, after repeated trials, associating the Judges with the President in the exercise of his revisionary power; indeed a gentleman high in office, and who held both situations at the same time as Judge and Envoy, is himself decidedly of this opinion, for in his charge to the Eastern juries he has these expressions: "Wise and virtuous men have thought and reasoned very differently respecting Government; but in this they have at length very unanimously agreed, viz: "that its powers should be divided into three distinct independent departments, the Executive, Legislative, and Judicial. But how to constitute and balance them so as best to guard against abuse and fluctuation, and preserve the constitution from encroachments, are points on which there continues to be a great diversity of opinions, and on which we all have as yet much to learn. The Constitution of the United States has therefore instituted these departments, and much pains have been taken so to form and define them, as that they may operate as checks one upon the other, and keep each within its proper limits: it being universally agreed to be of the last importance to a free people, that those who are vested with Legislative, Executive, and Judicial powers should rest satisfied with their respective portions of power; and neither encroach on the provinces of each other, nor suffer themselves or the others to intermeddle with the rights reserved by the constitution to the people."" If, then, there can be no doubt of its propriety when applied to a Judge, in ordinary cases, how much more forcibly does it apply to an Envoy who concludes a treaty, which when ratified is to become the supreme law of the land; how strongly must the negotiation of so important and in many instances so difficult a business, be impressed on his mind! He will no doubt retain the journals of his proceedings and opinions, and perfectly recollect the progress and termination of every proposal which was compromised or rejected. It must be difficult for him to forget the attempts to which ministers are sometimes liable in condescending where their object is honorable; he will remember what his opinions were upon particular points; and, whether they were successful or not, his general character may be that of not very easily yielding them. In short, it is impossible for him to be that cool and unbiased interpreter of the treaty which he otherwise might have been, had he not been concerned in concluding it. The constitution contemplates an independent Judiciary. The public, therefore, will expect and have a right to demand, upon a questions, a fair and impartial trial by Judges, whose minds are open to conviction, and unprejudiced by party opinions; by men who have not been concerned in forming a law or treaty, but who are totally unfettered by the recollection of what passed at the negotiation, or what might have been wished or expected by either party, as judges, candidly and impartially to determine upon every question that may come before them. These reasons are certainly sufficient to convince any one that this provision is necessary to the independence of the Judges, and the pure and unbiased exposition of the laws: that unless it is done, their independence is a visionary and unfounded thing. That if the President can hold out to the Judges the temptation of being Envoys, or of giving them other offices, and that he still can continue them as Judges, that on any question in which the President or his friends, or the Government may be concerned, it might have a tendency to influence them in opinion; that it was not frequently to be expected they would be unmindful from whom they received the present appointments, or so entirely indifferent to their own, or the advancement of their families as not sometimes to recollect that from the same source other and greater emoluments might in future be derived; that ingratitude was not often the vice of public officers while their patron continued in power; that on subjects where his character, his feelings, or the public opinion of his acts were in question, our Judges might reasonably be expected not to be charged with apathy or inattention; and that the true way to assert the dignity of the President and the honor and independence of the Judges, was to place it out of the power of the one to offer, and the other to accept additional favors. That a Judge ought never to be absent from the United States, or be drawn from his official situation and leave an undue proportion of its duties to be performed by the remainder of the bench; that the number of Judges were exactly proportioned to the duties they were to perform; that to withdraw one and be incapable of supplying the vacancy, was not only to require the inexecution of the laws in some parts of the Union, but to invidiously harass the other, while a favorite or possibly too complying a Judge was sent to gratify his curiosity or indulge his taste on some agreeable or easy mission. That no man ought to hold two offices under the same Government, particularly where they were important; that most of the States had regulations to prevent this, and that nothing more contributed to the extravagance of a Government or the corruption and immorality of its citizens, than the power to heap many lucrative and perhaps useless offices on the same person; that it had a tendency to make them servile, to render them the tools and sycophants of men in power, and to degrade the character of office. That in case of the impeachment of the President of the United States, the Chief Justice was to preside, and there was no provision in the constitution to supply the vacancy; therefore, if an impeachment was to take place in his absence, it must remain undecided until the Chief Justice could be sent for; that this, if recollected by the Executive, should of itself have been an insuperable objection--in point of propriety, it always is so, but in point of delicacy it ought most strongly to have been so, because, here the President, is the officer, and indeed the only one, who is implicated in the possibility of its inconvenience arising from absence of the Chief Justice. It is true it is to be presumed that the man who is elected by his countrymen to administer the important office of President, will be always so wise and virtuous as to make it very unlikely an impeachment of him should take place--the thing, however, is possible. In times of difficulty where opinions run high, and where those opinions are strongly divided between numerous and powerful parties, it is impossible to foretell what may happen. No man is said to be wise at all times, and our own experience and intercourse with the world must convince us that there are moments of enthusiasm, or of heat, or surprise, when the most cautious men are not quite so prudent as others. I will therefore ask, and do it with great deference, as the President is the only officer on whose trial the Chief Justice is to preside, or on whose impeachment his absence would be a public inconvenience, is it not perhaps presuming too far on his own infallibility or incapacity to err, to send the only officer to a distant country, without whose presence, in case of an impeachment, a court could not be formed to try him? I ask it with deference, and am sure these observations must have escaped the Executive, or the Chief Justice never would have been sent. To evince the absolute necessity of some provision being made, it is to be observed that, as the law stands now, a Judge might not only accept any other appointment from the Executive of the Union, but he may accept them from the individual States, or, what is still more dangerous, from a foreign power, and thus become the minion of the one or the tool of the other, as circumstances or his own interest may prompt him. Few men will deny the necessity of some provision here, and that the present is an unwise and degrading situation for a national Judiciary. Most of the States have carefully guarded their tribunals against a danger of this kind. The State of South Carolina, to which I belong, is remarkably express on this subject. Aware of the necessity of an independent judiciary, her constitution, in speaking of that department, has these words: "nor shall the Judges, hold any other office of profit or trust under this State, the United States, or any other power," a prohibition not more complete or full than ought to exist in the case of the Federal Judges. A strange doctrine has lately been circulated, which it is my duty to remark on--it is, that this bill is to be considered as a reflection on the President for nominating a Chief Justice, and the Senate for having confirmed it, and that the Senate, by agreeing to it, will join in the censure.[46] Being always ready to approve, and to praise what is meritorious, it is with great reluctance I can ever be brought to censure--I have no such intention at present. I can readily believe that many of the inconveniences I have mentioned may have escaped the President in the recent nomination. It is here I have always disliked it. I believe the general sentiment to be against it; but, be that as it may, no such reason ought ever to have weight in this House. If the thing is right, if it is now considered as proper for us to say, that the Judges must stay at home, and be confined to their judicial duties, and hold no other offices while Judges, we should do it, and not consider whether it is pleasing or otherwise to the President; he must understand public business too well to consider it in the nature of a reflection. We every day alter existing laws and regulations, without considering such changes as reflections on a preceding Legislature or President, and I should be sorry to suppose, that, while a bill was under discussion, the fear of displeasing the Executive should ever be used as a reason for its rejection. He has always a right to give his opinion in the exercise of his revisionary authority, and when he does, we will deliberately and respectfully attend to it. One remark more, and I shall no longer trespass on the patience of the House: it is, that a reason has been given for leaving the President at liberty to send a Judge on any delicate or difficult mission, which I do not conceive reputable either to the political or literary character of our country--it is said the Judges may be the most able and qualified men the President can find, and that being prevented from sending one of them, he may sometimes be obliged to send inferior and less important characters, and that the public interest might suffer. How far the present or any former supreme bench may justify the observation it is not for us to say, but never will I suppose that among a people so numerous and enlightened, so alive to their country's welfare, and hundreds, perhaps thousands of whom are so devoted to public business, can only six men be found capable of discharging any political duties that Government might require; the idea is too degrading to our national character to be entertained for a moment. For these reasons I have thought it my duty to introduce this bill, and I trust it will pass and become a law. SATURDAY, March 8. _Breach of Privilege._ And, on motion to agree to the original motion as amended, it passed in the affirmative--yeas 19, nays 8, as follows: YEAS.--Messrs. Anderson, Chipman, Dayton, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Marshall, Paine, Read, Ross, Schureman, Tracy, Watson, and Wells. NAYS.--Messrs. Baldwin, Bloodworth, Cocke, Franklin, Langdon, Mason, Nicholas, and Pinckney. So it was _Resolved_, That the Committee of Privileges be, and they are hereby, directed to consider and report what measures it will be proper for the Senate to adopt, in relation to a publication in the newspaper, printed in the city of Philadelphia, on Wednesday morning the 19th of February, 1800, called the General Advertiser, or Aurora; in which it is asserted, that the bill prescribing the mode of deciding disputed elections of PRESIDENT and VICE PRESIDENT OF THE UNITED STATES had passed the Senate, when in fact it had not passed; in which it is also asserted, that the honorable Mr. Pinckney, a Senator from the State of South Carolina, and a member of the committee who brought before the Senate the bill aforesaid, had never been consulted on the subject; whereas, in fact, he was present at each meeting of the committee; and, generally, to report what measures ought to be adopted in relation to sundry expressions contained in said paper, respecting the Senate of the United States, and the members thereof, in their official capacity. TUESDAY, March 18. _Breach of Privilege._ The Senate took into consideration the report of the Committee of Privileges, on the measures that will be necessary to adopt in relation to a publication in the newspaper, printed in the city of Philadelphia, on Wednesday morning, the 19th of February last, called the General Advertiser, or Aurora; and, On motion to adopt the first resolution reported, it was agreed to divide the motion, and that the question should be taken on the following words: _Resolved_, That the said publication contains assertions, and pretended information, respecting the Senate, and the Committee of the Senate, and their proceedings, which are false, defamatory, scandalous, and malicious; tending to defame the Senate of the United States, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the United States. And on the question, to adopt this part of the resolution, reported by the committee, it passed in the affirmative--yeas 20, nays 8, as follows: YEAS.--Messrs. Anderson, Bingham, Brown, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Gunn, Hillhouse, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Baldwin, Bloodworth, Cocke, Franklin, Langdon, Marshall, Mason, and Nicholas. WEDNESDAY, March 19. The Senate resumed the consideration of the report of the Committee of Privileges, on the measures proper to adopt in relation to a publication in the newspaper called the Aurora, of the 19th of February last; and it was agreed to amend the second member of the first resolution reported, as follows: "and that the said publication is a high breach of the privileges of this House;" and, on the question to agree thereto, as amended, it was determined in the affirmative--yeas 17, nays 11, as follows: YEAS.--Messrs. Bingham, Chipman, Dexter, Foster, Goodhue, Greene, Gunn, Hillhouse, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney. THURSDAY, March 20. The Senate resumed the consideration of the report of the Committee of Privileges, on the measures proper to be adopted in relation to a publication of the 19th of February last, in the newspaper called the Aurora; and it was agreed to fill the blanks in the second resolution reported, with the words "Monday 24th, twelve o'clock," and, at the close of the resolution, with the words "twenty-second;" and, On motion, to adopt this part of the report, as follows: _Resolved_, That William Duane, now residing in the city of Philadelphia, the editor of the said newspaper called the General Advertiser, or Aurora, be, and he is hereby, ordered to attend at the bar of this House, on Monday, the 24th day of March inst., at 12 o'clock, at which time he will have an opportunity to make any proper defence for his conduct, in publishing the aforesaid false, defamatory, scandalous, and malicious assertions, and pretended information; and the Senate will then proceed to take further order on the subject; and a copy of this and the foregoing resolution, under the authentication of the Secretary of the Senate of the United States, and attested as a true copy by James Mathers, Sergeant-at-Arms for the said Senate, and left by the said Sergeant-at-Arms with the said William Duane, or at the office of the Aurora, on or before the twenty-second day of March instant, shall be deemed sufficient notice for the said Duane to attend in obedience to this resolution: It passed in the affirmative--yeas 18, nays 10, as follows: YEAS.--Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Gunn, Hillhouse, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney. So the report of the committee was adopted, as follows: Whereas, on the 19th day of February, now last past, the Senate of the United States, being in session, in the city of Philadelphia, the following publication was made in the newspaper, printed in the said city of Philadelphia, called the General Advertiser, or Aurora, viz: "In our paper of the 27th ult. we noticed the introduction of a measure into the Senate of the United States, by Mr. Ross, calculated to influence and affect the approaching Presidential election, and to frustrate, in a particular manner, the wishes and interests of the people of the Commonwealth of Pennsylvania. "We this day lay before the public a copy of that bill as it has passed the Senate. "Some curious facts are connected with this measure, and the people of the Union at large are intermediately, and the people of this State immediately interested to consider the movements, the mode of operation, and the effects. "We noticed a few days ago the caucuses (or secret consultations) held in the Senate Chamber. An attempt was made in an evening paper to give a counteraction (for these people are admirable at the system of intrigue) to the development of the Aurora, and to call those meetings jacobinical; we must cordially assent to the jacobinism of those meetings--they were in the perfect spirit of a jacobinical conclave. "The plain facts we stated are, however, unquestionable; but we have additional information to give on the subject of those meetings. We stated, that intrigues for the Presidential election were among the objects; we now state it as a fact that cannot be disputed upon fair ground, that the bill we this day present was discussed at the caucus on Wednesday evening last. "It is worthy of remark how this bill grew into existence. "The opponents of independence and republican Government, who supported Mr. Ross in the contest against Governor McKean, are well known by the indecency, the slander, and the falsehood of the measures they pursued--and it is well known that they are all devoted to the Federal party, which we dissected on Monday. Mr. Ross proposed this bill in the Federal Senate, (how consistently with the decency of his friends will be seen;) a committee of five was appointed to prepare a bill on the subject: on this committee, Mr. Pinckney, of South Carolina, was appointed. On Thursday morning last (the caucus held the preceding evening) Mr. Ross informed Mr. Pinckney that the committee had drawn up a bill on the subject, when in fact Mr. Pinckney had never been consulted on the subject, though a member of the committee! The bill was introduced and passed as below. "On this occasion it may not be impertinent to introduce an anecdote which will illustrate the nature of caucuses, and show that our popular Government may, in the hands of a faction, be as completely abused as the French Constitution has been, by the self-created Consuls: "In the summer session of 1798, when Federal thunder and violence were belched from the pestiferous lungs of more than one despotic minion, a caucus was held at the house of Mr. Bingham, in this city. It was composed of members of the Senate, and there were present seventeen members. The Senate consisting of thirty-two members, this number was of course a majority, and the session was a full one. "Prior to deliberation on the measures of war, navy, army, democratic proscription, &c., it was proposed, and agreed to, that all the members present should solemnly pledge themselves to act firmly upon the measures to be agreed upon by the majority of the persons present at the caucus. "The measures were perfectly in the high tone of that extraordinary session. But upon a division of the caucus it was found that they were divided, nine against eight. This majority, however, held the minority to their engagement, and the whole seventeen voted in Senate upon all the measures discussed at the caucus. "Thus it is seen that a secret self-appointed meeting of seventeen persons dictated laws to the United States, and not only that nine of that seventeen had the full command and power over the consciences and votes of the other eight, but that nine possessed, by the turpitude of the eight, actually all the power which the constitution declares shall be vested in the majority only. In other words, a minority of nine members of the Senate ruled the other twenty-three members. "It is easily conceivable, as in the recent changes in France, that this spirit of caucusing may be conducted in progression down to two or three persons; thus three leading characters may agree to act upon measures approved by any two of them; these three may add two others, and they would be a majority of five: and those adding four others would be a majority of nine; and this nine possess all the power of a majority of twenty-three! "Yet such is the way we are treated by those who call themselves Federalists. "The following bill is an offspring of this spirit of faction secretly working; and it will be found to be in perfect accord with the outrageous proceedings of the same party in our State Legislature, who are bent on depriving this State of its share in an election that may involve the fate of the country and posterity." _Resolved_, That the said publication contains assertions and pretended information, respecting the Senate, and the Committee of the Senate and their proceedings, which are false, defamatory, scandalous, and malicious, tending to defame the Senate of the United States, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the United States: and that the said publication is a high breach of the privileges of this House. _Resolved_, That William Duane, now residing in the city of Philadelphia, the editor of the said newspaper called the General Advertiser, or Aurora, be, and he is hereby, ordered to attend at the bar of this House on Monday, the 24th day of March, inst., at 12 o'clock, at which time he will have opportunity to make any proper defence for his conduct, in publishing the aforesaid false, defamatory, scandalous, and malicious, assertions and pretended information; and the Senate will then proceed to take further order on the subject: and a copy of this and the foregoing resolution, under the authentication of the Secretary of the Senate of the United States, and attested as a true copy by James Mathers, Sergeant-at-Arms for the said Senate, and left by the said Sergeant-at-Arms with the said William Duane, or at the office of the Aurora, on or before the twenty-second day of March, instant, shall be deemed sufficient notice for the said Duane to attend in obedience to this resolution. SATURDAY, March 22. Mr. DAYTON, from the Committee of Privileges, to whom it was referred to prepare and lay before the Senate a form of proceedings in the case of William Duane, reported in part; which report was read, amended, and agreed to, as follows: When William Duane shall present himself at the bar of the House, in obedience to the order of the 20th inst., the President of the Senate is to address him as follows: 1st. William Duane: You stand charged by the Senate of the United States, as editor of the newspaper called the General Advertiser, or Aurora, of having published in the same, on the 19th of February, now last past, false, scandalous, defamatory, and malicious assertions, and pretended information, respecting the said Senate and Committee of the Senate, and their proceedings, tending to defame the Senate of the United States, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the United States; and therein to have been guilty of a high breach of the privileges of this House. Then the Secretary shall read the resolutions of the Senate, passed the 20th instant, with the preamble; after which the President is to proceed as follows, viz: 1st. Have you any thing to say in excuse or extenuation for said publication? 2dly. If he shall make no answer, the Sergeant-at-Arms shall take him into custody, and retire with him from the Senate Chamber until the Senate shall be ready for a decision, at which time the Sergeant-at-Arms shall again set him at the bar of the House, and the President of the Senate is to pronounce to him the decision. 3dly. If he shall answer, he is to continue at the bar of the House until the testimony (if any be adduced) shall be closed, and he shall retire while the Senate are deliberating on the case; and when a decision is agreed upon, the said Duane, being notified of the time by the Sergeant-at-Arms, verbally, or by a written notice left at his office, shall appear at the bar of the House, and the President of the Senate is to pronounce to him the decision. MONDAY, March 24. The VICE PRESIDENT communicated a letter, signed William Duane, requesting to be heard by counsel, and have process awarded to compel the attendance of witnesses in his behalf, on the summons served on him the 22d inst., for a high breach of the privileges of the Senate; which letter was read. A motion was made that William Duane be permitted to be heard by counsel, agreeably to his request; and, after debate, the said William Duane appeared at the bar of the House, agreeably to the summons of the 22d instant; a return thereon having been made in the words following: CITY OF PHILADELPHIA, _March 21, 1800_. Then I, the subscriber, Sergeant-at-Arms for the Senate of the United States, left a true and attested copy of the within at the office of the Aurora. JAMES MATHERS. And the charge against the said William Duane having been read, he repeated his request to be heard by counsel. On which he was ordered to withdraw, and a motion was made as follows: _Resolved_, That, William Duane be permitted to be heard by counsel, he having appeared, agreeably to the order of the Senate, and requested that he might be heard by counsel. On which a motion was made to strike out all the motion subsequent to the word "Duane," and insert: Having appeared at the bar of the Senate and requested to be heard by counsel, on the charge against him for a breach of privileges of the Senate, he be allowed the assistance of counsel while personally attending at the bar of the Senate; who may be heard in denial of any facts charged against said Duane, or in excuse and extenuation of his offence. And it was agreed to divide the motion, and that the question be taken on striking out; which passed in the affirmative--yeas 18, nays 11, as follows: YEAS.--Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney. A motion was made to amend the amendment by striking out these words "he be allowed the assistance of counsel while personally attending the bar of the Senate; who may be heard in denial of any facts charged against said Duane, or in excuse and extenuation of his offence;" and to insert "he be permitted to have assistance of counsel for his defence;" and it was agreed to divide the motion, and that the question should be taken on striking out, which passed in the negative--yeas 10, nays 18, as follows: YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Mason, and Nicholas. NAYS.--Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. And, on the question to agree to the original amendment, it passed in the affirmative--yeas 21, nays 8, as follows: YEAS.--Messrs. Baldwin, Bingham, Bloodworth, Chipman, Dayton, Dexter, Foster, Franklin, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Brown, Cocke, Langdon, Marshall, Mason, Nicholas, and Pinckney. And the question being taken on the motion as amended, it was _Resolved_, That William Duane having appeared at the bar of the Senate, and requested to be heard by counsel, on the charge against him for a breach of privileges of the Senate, he be allowed the assistance of counsel while personally attending at the bar of the Senate, who may be heard in denial of any facts charged against said Duane, or in excuse and extenuation of his offence. A motion was made that it be an instruction to the Committee of Privileges to report in what manner witnesses shall be compelled to attend the Senate in support of the charge against William Duane, and in his defence against that charge. And, after debate, the further consideration thereof was postponed. _Resolved_, That a copy of the resolution last agreed to be sent to William Duane, and at the same time, he be ordered to attend at the bar of this House at 12 o'clock, on Wednesday next. WEDNESDAY, March 26. The VICE PRESIDENT communicated a letter signed William Duane, stating that he had received "an authenticated copy of the resolution of Monday last in his case," and enclosing certain papers stated to be a correspondence between him and his intended counsel, marked A, B, and C, and that he finds himself "deprived of all professional assistance under the restrictions which the Senate have thought fit to adopt. He therefore thinks himself bound, by the most sacred duties, to decline any further voluntary attendance upon that body, and to leave them to pursue such measures in this case, as in their wisdom they may deem meet;" and the letter was read. On motion that the papers referred to in the letter be read, it passed in the negative. On motion, the Senate took into consideration the report of the Committee of Privileges, who were ordered to prepare and lay before the Senate a form of proceedings in the case of William Duane; and, after debate, The order of the day was called for. _Ordered_, That the Sergeant-at-Arms, at the bar of the House, do call William Duane. And the said William Duane did not appear. Whereupon, _Resolved_, That as William Duane has not appeared at the bar of this House, in obedience to the order of the 24th instant, and has addressed a letter to the President of the Senate, which has been read this morning, in which he refuses any further attendance, his letter be referred to the Committee of Privileges, to consider and report thereon. On motion, the Senate resumed the consideration of the report of the Committee of Privileges of the 25th instant. And on the question to agree to the first resolution, amended as follows: _Resolved_, That all testimony shall be taken by the Committee of Privileges, who are hereby authorized to send for persons, papers, and records, and compel the attendance of witnesses which may become requisite for the execution of their commission: It passed in the affirmative--yeas 18, nays 11, as follows: YEAS.--Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney. On motion, the 4th resolution was adopted, as follows: _Resolved_, That all testimony taken by said committee shall be reported to the Senate, and kept on file by the Secretary. And having agreed to postpone the other resolutions reported, the Senate adjourned. THURSDAY, March 27. Mr. DAYTON, from the Committee of Privileges, to whom was referred the letter of William Duane, on the 26th instant, made report, as follows: _Resolved_, That William Duane, editor of the General Advertiser, or Aurora, having neglected and refused to appear at the bar of this House, at 12 o'clock, on the 26th day of March instant, pursuant to the order of the 24th instant, of which order he had been duly notified; and having sent the following letter to the President of the Senate, which has been communicated to the Senate, viz: "_To the President of the Senate_: "SIR: I beg of you to lay before the Senate this acknowledgment of my having received an authenticated copy of their resolutions on Monday last, in my case. Copies of those resolutions I transmitted to Messrs. Dallas and Cooper, my intended counsel, soliciting their professional aid; a copy of my letter is enclosed marked A. Their answers I have also the pleasure to enclose, marked B and C. I find myself, in consequence of these answers, deprived of all professional assistance, under the restrictions which the Senate have thought fit to adopt. I therefore think myself bound by the most sacred duties to decline any further voluntary attendance upon that body, and leave them to pursue such measures in this case, as, in their _wisdom_, they may deem meet. I am, sir with perfect respect, "WM. DUANE." is guilty of a contempt of said order, and of this House, and that, for said contempt, he, the said Wm. Duane, be taken into the custody of the Sergeant-at-Arms attending this House, to be kept subject to the further orders of the Senate. On motion to agree to this first resolution reported, it passed in the affirmative--yeas 16, nays 12, as follows: YEAS.--Messrs. Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney. On motion to strike out these words from the second resolution reported: "And all marshals, deputy marshals, and civil officers of the United States, and every other person, are hereby required to be aiding and assisting to you in the execution thereof:" it passed in the negative--yeas 10, nays 19, as follows: YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Mason, Nicholas, and Pinckney. NAYS.--Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Marshall, Paine, Read, Ross, Schureman, Tracy, and Wells. The second resolution reported was read as follows: _Resolved_, That a warrant issue signed by the President of the Senate, in the following form, viz: UNITED STATES, } _The 27th day of March, 1800_.} SS. Whereas the Senate of the United States, on the 18th day of March, 1800, then being in session in the city of Philadelphia, did resolve that a publication in the General Advertiser, or Aurora, a newspaper printed in the said city of Philadelphia, on Wednesday, the 19th day of February, then last past, contained assertions and pretended information respecting the Senate, and Committee of the Senate, and their proceedings, which were false, defamatory, scandalous, and malicious, tending to defame the Senate of the United States, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the United States; and that the said publication was a high breach of the privileges of the House. And whereas the Senate did then further resolve and order, that the said William Duane, resident in the said city, and editor of said newspaper, should appear at the bar of the House, on Monday, the 24th day of March, instant, that he might then have opportunity to make any proper defence for his conduct in publishing the aforesaid false, defamatory, scandalous, and malicious assertions and pretended information. And whereas the said William Duane did appear on said day at the bar of the House, pursuant to said order, and requested counsel; and the Senate, by their resolution of the 24th day of March, instant, _Resolved_, That William Duane, having appeared at the bar of the Senate, and requested to be heard by counsel on the charge against him for a breach of privileges of the Senate, he be allowed the assistance of counsel while personally attending at the bar of the Senate, who might be heard in denial of any facts charged against said Duane, or in excuse and extenuation of his offence, and that the said William Duane should attend at the bar of the Senate on Wednesday, then next, at 12 o'clock, of which the said Duane had due notice. And whereas said William Duane, in contempt of the said last mentioned order, did neglect and refuse to appear at the bar of the said Senate, at the time specified therein; and the Senate of the United States, on the 27th day of March, instant, did thereupon resolve that the said William Duane was guilty of a contempt of said order and of the Senate, and that for said contempt he, the said William, should be taken into custody of the Sergeant-at-Arms attending the Senate, to be kept for their further orders. All which appears by the journals of the Senate of the United States, now in session in the said city of Philadelphia. These are, therefore, to require you, James Mathers, Sergeant-at-Arms for the Senate of the United States, forthwith to take into your custody the body of the said William Duane, now resident in the said city of Philadelphia, and him safely to keep, subject to the further order of the Senate; and all marshals, deputy marshals, and civil officers, of the United States, and every other person, are hereby required to be aiding and assisting to you in the execution thereof; for which it shall be your sufficient warrant. Given under my hand, this 27th day of March, 1800. THOMAS JEFFERSON, _President of the Senate of the U. S._ On motion to agree to this resolution as reported, it passed in the affirmative--yeas 18, nays 11, as follows: YEAS.--Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney. So the report of the committee was adopted. MONDAY, March 31. _Respect to Mrs. Washington._ A message from the House of Representatives informed the Senate that the House have passed a bill, entitled "An act to extend the privilege of franking letters and packages to Martha Washington." TUESDAY, April 1. The bill, sent from the House of Representatives entitled "An act to extend the privilege of franking letters and packages to Martha Washington," was read the second time; and, by unanimous consent, it was read the third time and passed. TUESDAY, April 8. The bill for the defence of the merchant vessels of the United States was read the second time, and referred to Messrs. GOODHUE, NICHOLAS, and TRACY, to consider and report thereon to the Senate. The bill "for the removal and accommodation of the Government of the United States" was read the second time and referred to Messrs. ROSS, LLOYD, and HILLHOUSE, to consider and report thereon to the Senate. The bill to repeal the "Act laying duties on mills and implements employed in the manufacture of snuff," was read the second time, and referred to Messrs. BINGHAM, LIVERMORE, and LAURANCE, to consider and report thereon to the Senate. The bill permitting the exportation of some gunpowder, also a number of muskets and cutlasses, was read the second time and ordered to lie on the table. Mr. CHIPMAN, from the committee to whom was referred on the 12th March last, to inquire what amendments are necessary in the act to establish the Judicial Courts of the United States, reported a bill on the subject; which was read and ordered to the second reading. The Senate took into consideration the report of the committee on the petition of Thomas Burling and others, inhabitants of the Mississippi Territory; and the report was adopted. TUESDAY, April 29. _Judiciary--Its better Organization._ The Senate took into consideration the report of the committee on the bill to amend the act to establish the Judicial Courts of the United States; the first clause of which is as follows: Strike out the whole of the bill after the word "serve," in third line, and insert "in the Courts of the United States, shall be designated by lot, or otherwise, in each State or district respectively, according to the mode of forming juries, to serve in the highest courts of law therein, now practised; so far as the same shall render such designation practicable by the Courts and Marshals of the United States." On motion to strike out all that follows the word "otherwise," in the fourth line of the report, for the purpose of inserting the following: "Summoned or procured in each State respectively, according to the mode directed and prescribed by the laws of each State respectively, so far as such laws shall render the same practicable by the Courts or Marshals of the United States; and where the State mode cannot be used in the Courts of the United States, the Marshal attending such Courts shall, every day the Court sits, summon a sufficient number of persons to attend the Court that day, that out of them may be impannelled sufficient juries for the trial of all causes (except cases punishable with death) depending in such Courts; and if any person so summoned shall fail to attend the Court accordingly, he shall be fined eight dollars, to the use of the United States:" A division of the motion was called for, and the question was taken on striking out, which passed in the negative--yeas 9, nays 16, as follows: YEAS.--Messrs. Anderson, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Mason, and Nicholas. NAYS.--Messrs. Bingham, Dayton, Dexter, Foster, Goodhue, Greene, Gunn, Hillhouse, Howard, Latimer, Livermore, Read, Ross, Schureman, Tracy, and Wells. And it was agreed, that the bill pass to the third reading as amended.[47] WEDNESDAY, May 14. The VICE PRESIDENT having, by letter, intimated his desire to be excused from further attendance, as it would probably be the last day of the session, the Senate proceeded to the choice of a President _pro tempore_, as the constitution provides, and URIAH TRACY was duly elected. _Mississippi Slave Act._ The bill entitled "An act to permit, in certain cases, the bringing of slaves into the Mississippi Territory," was read the third time. On the question to agree to the final passage thereof, it passed in the negative--yeas 5, nays 14, as follows: YEAS.--Messrs. Anderson, Cocke, Marshall, Pinckney, and Read. NAYS.--Messrs. Baldwin, Bingham, Bloodworth, Brown, Dayton, Foster, Franklin, Greene, Hillhouse, Laurance, Livermore, Mason, Morris, and Ross. A message from the House of Representatives informed the Senate that the House disagree to the amendment of the Senate to the bill regulating the grants of land for the refugees from the British provinces of Canada and Nova Scotia. The Senate considered the resolution of the House of Representatives on the amendment of the Senate to the bill last mentioned. _Resolved_, That they adhere to their amendment. Mr. Ross, from the committee on the bill making grants of lands to the inhabitants of Vincennes, and Illinois country, reported the bill without amendment, and it was agreed to postpone the bill to the next session of Congress. _Adjournment._ A message from the House of Representatives informed the Senate that they have appointed a committee on their part, with such as the Senate may join, to wait on the PRESIDENT OF THE UNITED STATES and notify him that, unless he hath any further communications to make to the two Houses of Congress, they are ready to adjourn; and they desire the appointment of a committee on the part of the Senate. The Senate agreed to the resolution of the House of Representatives appointing a committee, jointly with such as the Senate may appoint, to wait on the PRESIDENT OF THE UNITED STATES, and notify him of the proposed adjournment of the two Houses of Congress; and it was ordered that Messrs. BINGHAM and WELLS be the committee on the part of the Senate. Mr. BINGHAM reported, from the joint committee last mentioned, that the PRESIDENT OF THE UNITED STATES had no further communication to make to Congress at this time than his best wishes for their safe return to their respective places of abode. On motion that it be _Resolved_, That the PRESIDENT OF THE UNITED STATES be requested to instruct the proper law officer to commence and carry on a prosecution against William Duane, editor of the newspaper called the Aurora, for certain false, defamatory, scandalous, and malicious publications, in the said newspaper, on the 19th of February last past, tending to defame the Senate of the United States, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the United States: It passed in the affirmative--yeas 13, nays 4, as follows: YEAS.--Messrs. Bingham, Dayton, Foster, Greene, Gunn, Latimer, Laurance, Livermore, Morris, Read, Ross, Tracy, and Wells. NAYS.--Messrs. Bloodworth, Brown, Cocke, Franklin. _Ordered_, That the Secretary lay an attested copy of the foregoing resolution before the PRESIDENT OF THE UNITED STATES. _Resolved_, That the thanks of the Senate of the United States be presented to the Commissioners of the city and county of Philadelphia, for the convenient and elegant accommodations furnished by them for the use of the Senate, during the residence of the National Government in the city; and that the President of the Senate be requested to convey this resolution in a letter to the said Commissioners. The PRESIDENT, agreeably to the joint resolution of the 12th instant, adjourned the Senate, to meet again on the third Monday of November next, as the law provides. SIXTH CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, December 2, 1799. This being the constitutional day for the annual meeting of Congress, the following members of the House of Representatives appeared, produced their credentials, and took their seats, viz: _From New Hampshire._--ABIEL FOSTER, JONATHAN FREEMAN, and WILLIAM GORDON. _From Massachusetts._--BAILEY BARTLETT, PHANUEL BISHOP, DWIGHT FOSTER, HARRISON G. OTIS, SILAS LEE, SAMUEL LYMAN, JOHN REED, SAMUEL SEWALL, THEODORE SEDGWICK, WILLIAM SHEPARD, GEORGE THATCHER, JOSEPH B. VARNUM, PELEG WADSWORTH, and LEMUEL WILLIAMS. _From Connecticut._--JONATHAN BRACE, SAMUEL W. DANA, JOHN DAVENPORT, WILLIAM EDMOND, CHAUNCEY GOODRICH, ELIZUR GOODRICH, and ROGER GRISWOLD. _From Rhode Island._--JOHN BROWN, and CHRISTOPHER G. CHAMPLIN. _From Vermont._--MATTHEW LYON, and LEWIS R. MORRIS. _From New York._--THEODORUS BAILEY, JOHN BIRD, WILLIAM COOPER, LUCAS ELMENDORPH, HENRY GLENN, EDWARD LIVINGSTON, JONAS PLATT, JOHN THOMPSON, and PHILIP VAN CORTLANDT. _From New Jersey._--JOHN CONDIT, FRANKLIN DAVENPORT, JAMES H. IMLAY, AARON KITCHELL, and JAMES LINN. _From Pennsylvania._--ROBERT BROWN, ANDREW GREGG, ALBERT GALLATIN, JOHN A. HANNA, JOSEPH HEISTER, JOHN WILKES KITTERA, MICHAEL LEIB, PETER MUHLENBERG, JOHN SMILIE, RICHARD THOMAS, ROBERT WALN, and HENRY WOODS. _From Maryland._--GEORGE BAER, WILLIAM CRAIK, GABRIEL CHRISTIE, GEORGE DENT, JOSEPH H. NICHOLSON, SAMUEL SMITH, and JOHN CHEW THOMAS. _From Virginia._--JOHN DAWSON, THOMAS EVANS, DAVID HOLMES, GEORGE JACKSON, JOHN MARSHALL, JOHN NICHOLAS, ANTHONY NEW, LEVEN POWELL, JOHN RANDOLPH, ABRAM TRIGG, and JOHN TRIGG. _From North Carolina._--WILLIS ALSTON, JOSEPH DICKSON, ARCHIBALD HENDERSON, WILLIAM H. HILL, NATHANIEL MACON, RICHARD STANFORD, and DAVID STONE. _From South Carolina._--ROBERT GOODLOE HARPER, ABRAHAM NOTT, JOHN RUTLEDGE, Jr., and THOMAS SUMTER. _From Georgia._--JAMES JONES, BENJAMIN TALIAFERRO. _From Tennessee._--WILLIAM CHARLES COLE CLAIBORNE. A quorum of the whole number of members being present, the House proceeded to the election of a SPEAKER; when, on counting the ballots, the tellers reported that Mr. SEDGWICK had 42 votes; Mr. MACON, 27; Mr. DENT, 13; Mr. RUTLEDGE, 2; Mr. SUMTER, 1. That the whole number of votes was 85, and the rules of the House requiring a majority of the members present to constitute a choice, neither of the above gentlemen were elected. The House then proceeded to a second trial; when Mr. SEDGWICK had 44 votes; Mr. MACON, 38; Mr. DENT, 3; Mr. RUTLEDGE, 1. Whereupon Mr. SEDGWICK was declared duly elected, and conducted to the chair accordingly. Mr. SEDGWICK, upon taking the chair, addressed the House in the following words: "GENTLEMEN: Although I am conscious of a deficiency of the talents which are desirable to discharge with usefulness and dignity the important duties of the high station to which I am raised, by the generous regard of the enlightened and virtuous representatives of my country, yet, reposing myself on the energy of their candid support, I will not shrink from the attempt. "Accept, I pray you, gentlemen, my grateful acknowledgment of the honor you are pleased to confer; and, with it, an assurance, that no consideration shall seduce me to deviate, in the least degree, from a direct line of impartial integrity." A message was received from the Senate, informing the House that, a sufficient number of members appearing to form a quorum, they had proceeded to the choice of a President _pro tempore_, when Hon. SAMUEL LIVERMORE was elected. The House proceeded to the choice of a Clerk; when it appeared JONATHAN W. CONDY had 47 votes, JOHN BECKLEY, 39. Whereupon Mr. CONDY was declared by the SPEAKER to be duly elected. _Ordered_, That a message be sent to the Senate, to inform that body of the election of the Hon. THEODORE SEDGWICK, as SPEAKER of the House of Representatives. On motion of Mr. MACON, the House proceeded to the choice of a Sergeant-at-Arms, Doorkeeper, and Assistant Doorkeeper; when JOSEPH WHEATON, THOMAS CLAXTON, and THOMAS DUNN, were unanimously elected. The oath to support the Constitution of the United States, as prescribed by the act, entitled "An act to regulate the time and manner of administering certain oaths," was administered by Mr. RUTLEDGE, one of the Representatives for the State of South Carolina, to the SPEAKER, and then the same oath or affirmation was administered by Mr. SPEAKER to each of the members present. WILLIAM HENRY HARRISON having also appeared, as a Representative for the territory of the United States north-west of the river Ohio, the said oath was administered to him by Mr. SPEAKER. The same affirmation, together with the affirmation of office prescribed by the said recited act, were also administered by Mr. SPEAKER to the Clerk. A message was received from the Senate, informing the House, that they had passed a resolution, appointing a joint committee to wait on the PRESIDENT OF THE UNITED STATES, and inform him that Congress had met and were ready to receive any communications he might think proper to make; and, in case of concurrence, that Messrs. READ and BINGHAM were appointed a committee on behalf of the Senate. The House concurred in the resolution, and Messrs. MARSHALL, RUTLEDGE, and SEWALL, were appointed to wait on the PRESIDENT, in conjunction with the committee from the SENATE. The following letter was read by the Speaker. 72 WELBECK-STREET, LONDON, _September 20, 1798_. SIR: I beg leave, through you, to offer to the House of Representatives of the United States, impressions of the two prints of the American Revolution, which I have lately caused to be published.[48] The importance of the events, and the illustrious characters of the two great men to whose memory they are particularly devoted, give to these works their best claim to your notice; and the patriotism of my countrymen, I trust, will give them a kinder reception than their intrinsic merit might entitle me to hope. With great respect, I have the honor to be, sir, your most obedient, humble servant, JNO. TRUMBULL. The SPEAKER _of the House of Reps. U. S._ _Resolved_, That the rules and orders of proceeding established by the late House of Representatives, shall be deemed and taken to be the rules and orders of proceeding to be observed in this House, until a revision or alteration of the same shall take place. _Resolved_, That each member be furnished with three newspapers, printed in this city, during the session, at the expense of this House. Mr. MARSHALL, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES, reported, that they had performed that service; and that the PRESIDENT had appointed to-morrow forenoon, 12 o'clock, to meet both Houses in the Representatives' Chamber. The House then adjourned, till to-morrow morning at eleven o'clock. TUESDAY, December 3. JAMES A. BAYARD, from Delaware, appeared produced his credentials, was qualified, and took his seat in the House. _President's Speech._ _Ordered_, That a message be sent to the Senate to inform them that this House is now ready to attend them in receiving the communication from the PRESIDENT OF THE UNITED STATES, agreeably to his notification to both Houses yesterday. The Senate attended and took seats in the House; when, both Houses being assembled, the PRESIDENT OF THE UNITED STATES came into the Representatives' Chamber, and addressed them as follows. (For the Speech, see Senate proceedings, _ante_.) The PRESIDENT OF THE UNITED STATES then withdrew and the two Houses separated. A copy of the Speech being delivered by the PRESIDENT to the SPEAKER, and read by the Clerk, it was ordered, that it be committed to a Committee of the whole House to-morrow. WEDNESDAY, December 4. Mr. LIVINGSTON said he conceived some notice ought to be taken of the letter received from Mr. TRUMBULL, and therefore moved that it be referred to a select committee. Agreed to, and Messrs. LIVINGSTON, TALIAFERRO, and HILL, were appointed. _The President's Speech._ The House went into a Committee of the Whole on the PRESIDENT'S Speech, Mr. RUTLEDGE in the chair. The Speech having been read, Mr. MARSHALL moved the following resolution, which was agreed to by the committee, viz: _Resolved_, That it is the opinion of this committee, that a respectful Address ought to be presented by the House of Representatives to the President of the United States, in answer to his Speech to both Houses of Congress, on the opening of the present session, containing assurances that this House will duly attend to the important objects recommended by him to their consideration. The committee rose, and the resolution having been agreed to by the House, Messrs. MARSHALL, RUTLEDGE, SEWALL, LIVINGSTON, and NICHOLAS, were appointed a committee to draft the Address. FRIDAY, December 6. Mr. MARSHALL, from the committee appointed to draft an Address in answer to the Speech of the PRESIDENT OF THE UNITED STATES, at the commencement of the present session, reported the same, which was committed to a Committee of the Whole on Monday next, and ordered to be printed. Mr. LIVINGSTON, from the committee to whom was referred the letter of Mr. Trumbull, reported the following resolution, which was adopted by the House: "_Resolved_, That the two elegant prints offered by Mr. Trumbull, be accepted; and that the Speaker be instructed to write an answer, expressive of the pleasure with which this House has observed his genius and talents exerted in the patriotic task of celebrating the events which led to his country's independence, and dedicated to the memory of those heroes who fell in its defence." MONDAY, December 9. JOSIAH PARKER and ROBERT PAGE, from Virginia, appeared, produced their credentials, were qualified, and took their seats. _Address to the President._ The House resolved itself into a Committee of the Whole, on the Address to be presented to the PRESIDENT OF THE UNITED STATES in answer to his Speech to both Houses, at the commencement of the present session. Mr. GREGG moved, that the words distinguished by italics, in the third and fourth lines of the second paragraph of the Address, be struck out, and that the words "act in" be inserted in their stead; which produced a short debate, and was finally negatived. The committee then rose, and the Address was reported without amendment; and was agreed to by the House, in the words following, viz: _To the President of the United States:_ SIR: While the House of Representatives contemplate the flattering prospects of abundance from the labors of the people, by land and by sea, the prosperity of our extended commerce, notwithstanding the interruptions occasioned by the belligerent state of a great part of the world, the return of health, industry and trade, to those cities which have lately been afflicted with disease, and the various and inestimable advantages, civil and religious, which, secured under our happy frame of Government, are continued to us unimpaired, we cannot fail to offer up to the benevolent Deity our sincere thanks for these the merciful dispensations of his protecting Providence. That any portion of the people of America should permit themselves, amid such numerous blessings, to _be seduced by the arts and misrepresentations of designing men into an_ open resistance of a law of the United States, cannot be heard without deep and serious regret. Under a constitution where the public burdens can only be imposed by the people themselves, for their own benefit, and to promote their own objects, a hope might well have been indulged that the general interest would have been too well understood, and the general welfare too highly prized, to have produced in any of our citizens a disposition to hazard so much felicity, by the criminal effort of a part, to oppose with lawless violence the will of the whole. While we lament that depravity which could produce a defiance of the civil authority, and render indispensable the aid of the military force of the nation, real consolation is to be derived from the promptness and fidelity with which that aid was afforded. That zealous and active co-operation with the judicial power, of the volunteers and militia called into service, which has restored order and submission to the laws, is a pleasing evidence of the attachment of out fellow-citizens to their own free Government, and of the truly patriotic alacrity with which they will support it. To give due effect to the civil administration of Government, and to ensure a just execution of the laws, are objects of such real magnitude as to secure proper attention to your recommendation of a revision and amendment of the judiciary system. Highly approving, as we do, the pacific and humane policy which has been invariably professed and sincerely pursued by the Executive authority of the United States, a policy which our best interests enjoined and of which honor has permitted the observance, we consider as the most unequivocal proof of your inflexible perseverance in the same well chosen system, your preparation to meet the first indications on the part of the French Republic, of a disposition to accommodate the existing differences between the two countries, by a nomination of Ministers on certain conditions, which the honor of our country unquestionably dictated, and which its moderation had certainly given it a right to prescribe. When the assurances thus required of the French Government, previous to the departure of our Envoys, had been given through their Minister of Foreign Relations, the direction that they should proceed on their mission, was, on your part, a completion of the measure, and manifests the sincerity with which it was commenced. We offer up our fervent prayers to the Supreme Ruler of the Universe for the success of their embassy, and that it may be productive of peace and happiness to our common country. The uniform tenor of your conduct, through a life useful to your fellow-citizens and honorable to yourself, gives a sure pledge of the sincerity with which the avowed objects of the negotiation will be pursued on your part, and we earnestly pray that similar dispositions may be displayed on the part of France. The differences which unfortunately subsist between the two nations, cannot fail, in that event, to be happily terminated. To produce this end, to all so desirable, firmness, moderation, and union at home, constitute, we are persuaded, the surest means. The character of the gentlemen you have deputed, and still more, the character of the Government which deputes them, are safe pledges to their country, that nothing incompatible with its honor or interest, nothing inconsistent with our obligations of good faith or friendship to any other nation, will be stipulated. We learn, with pleasure, that our citizens, with their property, trading to those ports of St. Domingo with which commercial intercourse has been renewed, have been duly respected, and that privateering from those ports has ceased. With you, we sincerely regret that the execution of the sixth article of the Treaty of Amity, Commerce, and Navigation, with Great Britain, an article produced by a mutual spirit of amity and justice, should have been unavoidably interrupted. We doubt not the same spirit of amity, and the same sense of justice in which it originated, will lead to satisfactory explanations; and we hear with approbation that our Minister at London will be immediately instructed to obtain them. While the engagements which America has contracted by her treaty with Great Britain, ought to be fulfilled with that scrupulous punctuality and good faith to which our Government has ever so tenaciously adhered, yet no motive exists to induce, and every principle forbids us to adopt a construction which might extend them beyond the instrument by which they are created. We cherish the hope that the Government of Great Britain will disclaim such extension, and by cordially uniting with that of the United States for the removal of all difficulties, will soon enable the boards appointed under the sixth and seventh articles of our treaty with that nation, to proceed, and bring the business committed to them respectively to a satisfactory conclusion. The buildings for the accommodation of Congress, and of the President, and for the public offices of the Government at its permanent seat, being in such a state as to admit of a removal to that District by the time prescribed by the act of Congress, no obstacle, it is presumed, will exist to a compliance with the law. With you, sir, we deem the present period critical and momentous. The important changes which are occurring, the new and great events which are every hour preparing in the political world, the spirit of war which is prevalent in almost every nation with whose affairs the interests of the United States have any connection, demonstrate how unsafe and precarious would be our situation, should we neglect the means of maintaining our just rights. Respecting, as we have ever done, the rights of others, America estimates too correctly the value of her own, and has received evidence too complete that they are only to be preserved by her own vigilance, ever to permit herself to be seduced by a love of ease, or by other considerations, into that deadly disregard of the means of self-defence, which could only result from a carelessness as criminal as it would be fatal concerning the future destinies of our growing Republic. The result of the mission to France is, indeed, sir, uncertain. It depends not on America alone. The most pacific temper will not always ensure peace. We should therefore exhibit a system of conduct as indiscreet as it would be new in the history of the world, if we considered the negotiation happily terminated because we have attempted to commence it, and peace restored because we wish its restoration. But, sir, however this mission may terminate, a steady perseverance in a system of national defence, commensurate with our resources and the situation of our country, is an obvious dictate of duty. Experience, the parent of wisdom, and the great instructor of nations, has established the truth of your position, that, remotely as we are placed from the belligerent nations, and desirous as we are, by doing justice to all, to avoid offence to any, yet nothing short of the power of repelling aggressions will secure to our country a rational prospect of escaping the calamities of war or national degradation. In the progress of the session, we shall take into our serious consideration the various and important matters recommended to our attention. A life devoted to the service of your country, talents and integrity which have so justly acquired and so long retained the confidence and affection of your fellow-citizens, attest the sincerity of your declaration, that it is your anxious desire so to execute the trust reposed in you as to render the people of the United States prosperous and happy. _Resolved_, That the SPEAKER, attended by the House, do present the said Address. Messrs. MARSHALL, RUTLEDGE, and SEWALL, were appointed a committee to wait on the PRESIDENT, to know when and where he would be ready to receive the Address; and having performed that service, reported, that the PRESIDENT had appointed to-morrow, two o'clock, for that purpose, at his own house. _Delegate from North-west Territory._ _Ordered_, That the credentials of WILLIAM HENRY HARRISON, who has appeared as a Delegate from the territory of the United States north-west of the river Ohio, be referred to the Committee of Elections; and that they be directed to report whether the Territory is entitled to elect a Delegate who may have a seat in this House. TUESDAY, December 10. MATTHEW CLAY, from Virginia, appeared, produced his credentials, was qualified, and took his seat in the House. _Address to the President._ The hour having arrived which the PRESIDENT had appointed, Mr. SPEAKER, attended by the members present, proceeded to the President's house, to present him their Address in answer to his Speech at the opening of the present session; and having returned, the PRESIDENT'S reply thereto was read, as follows: _Gentlemen of the House of Representatives_: This very respectful address from the Representatives of the people of the United States at their first assembly, after a fresh election, under the strong impression of the public opinion and national sense, at this interesting and singular crisis of our public affairs, has excited my sensibility, and receives my sincere and grateful acknowledgments. As long as we can maintain, with harmony and affection, the honor of our country, consistently with its peace, externally and internally, while that is attainable, or in war, when that becomes necessary, assert its real independence and sovereignty, and support the constitutional energies and dignity of its government, we may be perfectly sure, under the smiles of Divine Providence, that we shall effectually promote and extend our national interests and happiness. The applause of the Senate and House of Representatives, so justly bestowed upon the volunteers and militia, for their zealous and active co-operation with the judicial power, which has restored order and submission to the laws, as it comes with peculiar weight and propriety from the Legislature, cannot fail to have an extensive and permanent effect, for the support of Government, upon all those ingenuous minds who receive delight from the approving and animating voice of their country. JOHN ADAMS. UNITED STATES, _December 10_. And then the House adjourned till to-morrow morning, 11 o'clock. WEDNESDAY, December 11. HENRY LEE, from Virginia, appeared, produced his credentials, was qualified, and took his seat in the House. _The Direct Tax Law._ Mr. HARPER said, that a difficulty had arisen in the State of Pennsylvania, relative to the execution of the law "for the valuation of lands and dwelling-houses, and for the enumeration of slaves, within the United States," which the Commissioners for that State did not conceive themselves competent to decide upon; that the Commissioners had referred the case to the Secretary of the Treasury, whose opinion it was, that they were possessed of sufficient power to obviate the difficulties complained of; but the Commissioners, on again taking the subject into consideration, were still of opinion they were unable to act without legislative aid, and therefore had made application to the Committee of Ways and Means, who, Mr. H. said, had directed him to move for leave to bring in a bill, further to amend the act entitled "An act to provide for the valuation of lands and dwelling-houses, and for the enumeration of slaves within the United States," which was granted. _Franking Privilege to W. H. Harrison._ Mr. HARPER laid the following resolution on the table. _Resolved_, That a committee be appointed to prepare and bring in a bill, extending the privilege of franking to W. H. Harrison, a delegate from the territory of the United States north-west of the river Ohio, and making provision for his compensation. Mr. H. said, that according to law, that gentleman had the right only of speaking and giving his opinion upon any question before the House, but was not entitled to a vote, or any other privilege; but as the privileges of a member had been extended on a former occasion to a delegate from the South-western Territory, he had no doubt they would be granted on the present. MONDAY, December 16. THOMAS HARTLEY, from Pennsylvania, and JOSEPH EGGLESTON, from Virginia, appeared, produced their credentials, were qualified, and took their seats in the House. WEDNESDAY, December 18. _Death of General Washington._ Mr. MARSHALL, in a voice that bespoke the anguish of his mind, and a countenance expressive of the deepest regret, rose, and delivered himself as follows: Mr. Speaker: Information has just been received, that our illustrious fellow-citizen, the Commander-in-Chief of the American Army, and the late President of the United States, is no more! Though this distressing intelligence is not certain, there is too much reason to believe its truth. After receiving information of this national calamity, so heavy and so afflicting, the House of Representatives can be but ill fitted for public business. I move you, therefore, they adjourn. The motion was unanimously agreed to; and then the House adjourned till to-morrow morning, 11 o'clock. THURSDAY, December 19. SAMUEL GOODE, from Virginia, appeared, produced his credentials, was qualified, and took his seat in the House. _Death of General Washington._ Mr. MARSHALL addressed the Chair as follows: Mr. Speaker: The melancholy event which was yesterday announced with doubt, has been rendered but too certain. Our WASHINGTON is no more! The Hero, the Sage, and the Patriot of America--the man on whom in times of danger every eye was turned and all hopes were placed--lives now only in his own great actions, and in the hearts of an affectionate and afflicted people. If, sir, it had even not been usual openly to testify respect for the memory of those whom Heaven had selected as its instruments for dispensing good to men, yet such has been the uncommon worth, and such the extraordinary incidents which have marked the life of him whose loss we all deplore, that the whole American nation, impelled by the same feelings, would call with one voice for a public manifestation of that sorrow which is so deep and so universal. More than any other individual, and as much as to any one individual was possible, has he contributed to found this our wide-spreading empire, and to give to the Western world its independence and its freedom. Having effected the great object for which he was placed at the head of our armies, we have seen him converting the sword into the ploughshare, and voluntarily sinking the soldier in the citizen. When the debility of our federal system had become manifest, and the bonds which connected the parts of this vast continent were dissolving, we have seen him the Chief of those patriots who formed for us a constitution, which, by preserving the Union, will, I trust, substantiate and perpetuate those blessings our Revolution had promised to bestow. In obedience to the general voice of his country, calling on him to preside over a great people, we have seen him once more quit the retirement he loved, and in a season more stormy and tempestuous than war itself, with calm and wise determination, pursue the true interests of the nation, and contribute, more than any other could contribute, to the establishment of that system of policy which will, I trust, yet preserve our peace, our honor, and our independence. Having been twice unanimously chosen the Chief Magistrate of a free people, we see him at a time when his re-election, with the universal suffrage, could not have been doubted, affording to the world a rare instance of moderation, by withdrawing from his high station to the peaceful walks of private life. However the public confidence may change, and the public affections fluctuate with respect to others, yet with respect to him they have in war and in peace, in public and in private life, been as steady as his own firm mind, and as constant as his own exalted virtues. Let us then, Mr. Speaker, pay the last tribute of respect and affection to our departed friend--let the Grand Council of the nation display those sentiments which the nation feels. For this purpose I hold in my hand some resolutions, which I will take the liberty to offer to the House. Mr. MARSHALL having handed them in at the table, they were read, and unanimously agreed to by the House, in the words following, to wit: The House of Representatives of the United States, having received intelligence of the death of their highly valued fellow-citizen, GEORGE WASHINGTON, General of the Armies of the United States, and sharing the universal grief this distressing event must produce, _unanimously resolve_: 1. That this House will wait on the President of the United States, in condolence of this national calamity. 2. That the Speaker's chair be shrouded with black, and that the members and officers of the House wear mourning, during the session. 3. That a joint committee of both Houses be appointed to report measures suitable to the occasion, and expressive of the profound sorrow with which Congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen. 4. That when this House adjourn, it will adjourn until Monday next. _Ordered_, That Mr. MARSHALL and Mr. SMITH be appointed a committee to wait on the PRESIDENT OF THE UNITED STATES, to know when and where he will receive this House for the purpose expressed in the first resolution. _Ordered_, That Mr. MARSHALL, Mr. CRAIK, Mr. HENRY LEE, Mr. EGGLESTON, Mr. SMITH, Mr. STONE, Mr. RUTLEDGE, Mr. ABIEL FOSTER, Mr. MUHLENBERG, Mr. VAN CORTLANDT, MR. DWIGHT FOSTER, Mr. FRANKLIN DAVENPORT, Mr. CLAIBORNE, Mr. MORRIS, Mr. JOHN BROWN, and Mr. TALIAFERRO, be a committee, jointly with such committee as may be appointed on the part of the Senate, for the purpose expressed in the third resolution. _Ordered_, That the Clerk of this House do acquaint the Senate therewith. A Message was received from the PRESIDENT OF THE UNITED STATES, which, together with the letter accompanying the same, was read and referred to the committee last appointed, and is as follows: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: The letter herewith transmitted, will inform you that it has pleased Divine Providence to remove from this life our excellent fellow-citizen, GEORGE WASHINGTON, by the purity of his character, and a long series of services to his country, rendered illustrious through the world. It remains for an affectionate and grateful people, in whose hearts he can never die, to pay suitable honor to his memory. JOHN ADAMS. UNITED STATES, _Dec. 19, 1799_. "MOUNT VERNON, _Dec. 15, 1799_. "SIR: It is with inexpressible grief that I have to announce to you the death of the great and good General WASHINGTON. He died last evening, between ten and eleven o'clock, after a short illness of about twenty hours. His disorder was an inflammatory sore throat, which proceeded from a cold, of which he made but little complaint on Friday. On Saturday morning, about three o'clock, he became ill. Doctor Craik attended him in the morning, and Doctor Dick, of Alexandria, and Doctor Brown, of Port Tobacco, were soon after called in. Every medical assistance was offered, but without the desired effect. His last scene corresponded with the whole tenor of his life; not a groan, nor a complaint, escaped him in extreme distress. With perfect resignation, and in full possession of his reason, he closed his well spent life. "I have the honor to be, sir, your most obedient and very humble servant, "TOBIAS LEAR. "The PRESIDENT OF THE UNITED STATES." Mr. MARSHALL, from the committee appointed to wait on the PRESIDENT OF THE UNITED STATES, to know when and where it will be convenient for him to receive this House in condolence of the national calamity, reported that the committee had, according to order, performed that service, and that the PRESIDENT signified to them it would be convenient for him to receive this House at one o'clock this afternoon, at his own house. A message from the Senate informed the House that the Senate have agreed to the resolution passed by the House of Representatives for the appointment of a joint committee of both Houses to report measures suitable to the occasion, and expressive of the profound sorrow with which Congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen; and have appointed Mr. DAYTON, Mr. BINGHAM, Mr. DEXTER, Mr. GUNN, Mr. LAURANCE, and Mr. TRACY, a committee on their part. The SPEAKER, attended by the House, then withdraw to the house of the PRESIDENT OF THE UNITED STATES, when Mr. SPEAKER addressed the PRESIDENT as follows: SIR: The House of Representatives, penetrated with a sense of the irreparable loss sustained by the nation in the death of that great and good man, the illustrious and beloved WASHINGTON, wait on you, sir, to express their condolence on this melancholy and distressing event. To which the PRESIDENT replied as follows: _Gentlemen of the House of Representatives_: I receive, with great respect and affection, the condolence of the House of Representatives, on the melancholy and affecting event, in the death of the most illustrious and beloved personage which this country ever produced. I sympathize with you, with the nation, and with good men through the world, in this irreparable loss sustained by us all. JOHN ADAMS. UNITED STATES, _Dec. 19, 1799_. MONDAY, December 23. THOMAS T. DAVIS, from Kentucky; ROBERT WILLIAMS, from North Carolina; and JOHN DENNIS, from Maryland; appeared, produced their credentials, were qualified, and took their seats in the House. _Respect to the Memory of General Washington._ Mr. MARSHALL, from the joint committee appointed to report what testimony of respect ought to be paid to the memory of the man first in war, first in peace, and first in the hearts of his countrymen, made a report in part, which he delivered in at the table, where it was twice read, and unanimously agreed to, in the words following, to wit: _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That a marble monument be erected by the United States, in the capitol, in the city of Washington, and that the family of General WASHINGTON be requested to permit his body to be deposited under it; and that the monument be so designed as to commemorate the great events of his military and political life. _And be it further resolved_, That there be a funeral procession from Congress Hall to the German Lutheran Church, in honor of the memory of General GEORGE WASHINGTON, on Thursday, the 26th instant, and that an oration be prepared at the request of Congress, to be delivered before both Houses on that day, and that the President of the Senate and Speaker of the House of Representatives be desired to request one of the members of Congress to prepare and deliver the same. _And be it further resolved_, That it be recommended to the people of the United States to wear crape on the left arm, as mourning for thirty days. _And be it further resolved_, That the President of the United States be requested to direct a copy of these resolutions to be transmitted to Mrs. WASHINGTON, assuring her of the profound respect Congress will ever bear to her person and character; of their condolence on the late afflicting dispensation of Providence; and entreating her assent to the interment of the remains of General GEORGE WASHINGTON, in the manner expressed in the first resolution. _And be it further resolved_, That the President of the United States be requested to issue a proclamation, notifying to the people throughout the United States the recommendation contained in the third resolution. _Ordered_, That the Clerk of this House do carry the said resolutions to the Senate, and desire their concurrence. Previous to the question being put upon the first resolution, Mr. H. LEE of Virginia, rose, and addressed the Chair as follows: Mr. Speaker: In executing the task assigned to the committee, it will be observed much remains to be done; so far as they have gone, and as far as they may go, one hope is cherished, that whatever is done, will be unanimously adopted. This will be most pleasing to our constituents, and most honorable to the character we all honor. Out of a wish to execute in the best manner the direction of the House, a difference of opinion will naturally prevail. This difference of opinion, however commendable, upon ascertaining the mode of public mourning, ought to be suppressed when we come to act; for unanimity then is, as I before stated, most to be wished for, whether the feelings of our constituents, or our intentions, on the celebrity which all desire to give to the high occasion, govern. A message was received from the Senate, announcing their concurrence in the report of the joint committee made this day; and then the House adjourned till to-morrow morning. TUESDAY, December 24. _Respect to the Memory of General Washington._ The SPEAKER informed the House that, conformably to the resolution of Congress, the President of the Senate and the Speaker of the House of Representatives had requested Major General HENRY LEE, one of the Representatives from the State of Virginia, to prepare and deliver a funeral oration before both Houses, on Thursday, the twenty-sixth instant, in honor of the memory of GEORGE WASHINGTON, late General of the Armies of the United States; and that Mr. LEE had been pleased to accept of the appointment. And, on motion, the House adjourned. THURSDAY, December 26. This being the day appointed by the resolution of Congress for the funeral procession in honor of the memory of GEORGE WASHINGTON, late General of the Armies of the United States, the House proceeded to the German Lutheran Church, where they attended the funeral oration, prepared and delivered on the occasion by Major General LEE, one of the members of this House for the State of Virginia. The House, having returned, adjourned until to-morrow morning. FRIDAY, December 27. JOHN FOWLER, from Kentucky, appeared, produced his credentials, was qualified, and took his seat in the House. _Respect to the Memory of General Washington._ On a motion made and seconded that the House do come to the following resolution, to wit: "The House of Representatives of the United States, highly gratified with the manner in which Mr. LEE has performed the service assigned to him under the resolution desiring the President of the Senate and Speaker of the House of Representatives to request one of the members of Congress to prepare and deliver a funeral oration on the death of GEORGE WASHINGTON; and desirous of communicating to their fellow-citizens, through the medium of the press those sentiments of respect for the character, of gratitude for the services, and of grief for the death of that illustrious personage, which, felt by all, have on this melancholy occasion been so well expressed: "_Resolved_, That the Speaker present the thanks of this House to Mr. LEE, for the oration delivered by him to both Houses of Congress on Thursday, the twenty-sixth instant; and request that he will permit a copy thereof to be taken for publication:" The question was taken that the House do agree to the same, and unanimously resolved in the affirmative. MONDAY, December 30. _Respect to the Memory of General Washington._ The SPEAKER informed the House that, in pursuance of the resolution of Friday last, he had addressed to Major General HENRY LEE, one of the members for the State of Virginia, the following letter: "PHILADELPHIA, _Dec. 27, 1799_. "DEAR SIR: The enclosed resolutions, which unanimously passed the House of Representatives this day, will make known to you how highly they have been gratified with the manner in which you have performed the service assigned to you, in preparing and delivering a funeral oration on the death of General WASHINGTON. That our constituents may participate in the gratification we have received, from your having so well expressed those sentiments of respect for the character, of gratitude for the services, and of grief for the death of that illustrious personage, I flatter myself you will not hesitate to comply with the request of the House, by furnishing a copy of your oration, to be taken for publication. "Allow me, while performing this pleasing task of official duty in communicating an act of the Representatives of the people, so just to you and so honorable to themselves, to embrace the opportunity to declare that I am, personally, with great esteem and sincere regard, dear sir, your friend and obedient servant, "THEODORE SEDGWICK. "The Hon. Maj. Gen. LEE." To which Mr. LEE had replied as follows: "FRANKLIN COURT, _Dec. 28, 1799_. "DEAR SIR: I owe to the goodness of the House of Representatives the honor which their resolutions confer on my humble efforts to execute their wish. "I can never disobey their will, and therefore will furnish a copy of the oration delivered on the late afflicting occasion, much as I had flattered myself with a different disposition of it. "Sincerely reciprocating the personal considerations with which you honor me, I am, very respectfully, sir, your friend and obedient servant, "HENRY LEE. "The SPEAKER _of the House of Reps_." Mr. MARSHALL, from the joint committee appointed to consider and report what measures ought to be adopted in honor of the memory of General WASHINGTON, made another report in part, which was unanimously agreed to by the House, in the words following, to wit: _Resolved, by the Senate and House of Representatives of the United States in Congress assembled_, That it be recommended to the people of the United States to assemble on the twenty-second day of February next, in such numbers and manner as may be convenient, publicly to testify their grief for the death of General GEORGE WASHINGTON, by suitable eulogies, orations, and discourses, or by public prayers. _And be it further resolved_, That the President of the United States be requested to recommend the same, by a proclamation for that purpose. _Ordered_, That the Clerk of this House do carry the said resolutions to the Senate, and desire their concurrence. THURSDAY, January 2, 1800. RICHARD DOBBS SPAIGHT, from North Carolina, appeared, produced his credentials, was qualified, and took his seat. _Petition of Free Blacks._ Mr. WALN presented a petition of Absalom Jones and others, free men of color, of the city and county of Philadelphia, praying for a revision of the laws of the United States relative to the slave trade; of the act relative to fugitives from justice; and for the adoption of such measures as shall in due course emancipate the whole of their brethren from their present situation; which he moved to have referred to the committee appointed to inquire whether any and what alterations ought to be made in the existing law prohibiting the slave trade from the United States to any foreign place or country. The petitioners, after mentioning their sense of the bounties of Providence in their freedom, and the happiness they felt under such a form of Government, represent that they cannot but be impressed with the hardships under which numbers of their color labored, who they conceived equal objects of representation and attention with themselves or others under the constitution. That the solemn compact, the constitution, was violated by the trade of kidnapping, carried on by the people of some of the Southern States on the shores of Maryland and Delaware, by which numbers were hurried into holes and cellars, torn from their families and transported to Georgia, and there inhumanly exposed to sale, which was degrading to the dignified nature of man. That by these and other measures injurious to the human species, there were 700,000 blacks now in slavery in these States. They stated their application to Congress to be, not for the immediate emancipation of the whole, knowing that their degraded state and want of education would render that measure improper, but they ask an amelioration of their hard situation. They prayed that the act called the fugitive bill, which was very severe on that race of people, might be considered; also that the African slave trade might be put a stop to. Mr. WALN moved its reference to the committee appointed to prohibit carrying on the slave trade to any foreign place or country. Mr. RUTLEDGE thought any reference at all very improper; he hoped it would be laid on the table, and with a view never to be called up hereafter. Petitions of this sort had repeatedly come before the House, only with the difference of transfer of hands. When the Congress sat at New York, they spent much time and attention on the subject, but no sooner had it been decided that nothing could be done, than the same scenes were acted over again by repeatedly petitioning. Those gentlemen who used to come forward, to be sure, had not avowedly come forward again, but had now put it into the hands of the black _gentlemen_. They now tell the House these people are in slavery--I thank God they are! if they were not, dreadful would be the consequences. They say they are not represented. To be sure a great number of them are not. Farther, they say they are sent to the Southern States. Who can prevent that? Persons possessing slaves have a right to send them there if they choose. They tell you that they are brought from Africa. This matter is in a train to be prevented, the subject being now in the hands of a committee. Already had too much of this new-fangled French philosophy of liberty and equality found its way and was too apparent among these _gentlemen_ in the Southern States, by which nothing would do but their liberty. This appeared to be the intention of the petition, but he supposed the people of the Eastern States had felt as much in having them among them as those of the Southern States in losing them, and therefore he believed gentlemen from those parts would vote with them. However, he considered this subject very improper and unconstitutional to discuss, and, from the ill effects it might produce, should say no more. Mr. WALN thought the gentleman mistaken as to the nature of the petition; it related but two grievances: one was the operation of the fugitive act, by which free men were carried and sold into slavery, and the other was the slave trade. He did not wish to enter into general principles, because he conceived it as improper as any gentleman, but he could see no good reason why the petition might not be committed; every petition presented to the House ought to receive that attention, and a rejection of the present without examination could have no good effect. Mr. SMILIE was much surprised at the opposition of the gentleman from South Carolina to the reference. To be sure a great part of what these people asked, as far as he was acquainted with it, was out of their power to grant, but there was much of the petition which was within the power of the House. So far as they had power, he considered it the duty of the House to attend and grant relief. He could wish to drop some ideas on the situation of those people, but felt a contrary impulse from motives of prudence. However, he must consider them as a part of the human species, equally capable of suffering and enjoying with others, and equally objects of attention, and therefore they had a claim to be heard. Mr. OTIS hoped the petition would not be committed; he had never seen a petition presented under a more dangerous and unpleasant aspect. It appeared to be subscribed by a number of individuals who were incapable of writing their names, or of reading the petition, and, _a fortiori_, of digesting the principles of it. It therefore was a petition of certain men made out by other men, who ought to have come forward themselves, but had forborne. To encourage a measure of the kind would have an irritating tendency, and must be mischievous to America very soon. It would teach them the art of assembling together, debating, and the like, and would soon, if encouraged, extend from one end of the Union to the other. A great part of the petition was improper, and the other part entirely unnecessary. No particular object or evils were pointed out in the fugitive law, but the truth was, they wanted a repeal of the law. Although, he thanked God he had no slaves, nor ever wished to possess any, yet he thought the subject ought not to be meddled with by the General Government, and if any grievances existed, they were properly and only objects of legislation in the several States. It was the duty, and he thought the interest of the States, while they were kept in servitude, to ameliorate their situation as much as consisted with security. He thought those who did not possess that species of property had better leave the regulation of it to those who were cursed with it. However, it was unjust to intermeddle with it to the injury of the possessors. Mr. H. LEE observed that gentlemen were sent to that House to preserve the rights of the people and the rights of property. That property which the people of the Southern States possess consisted of slaves, and therefore Congress had no authority but to protect it, and not take measures to deprive the citizens of it. He said he held himself not second to any gentleman in a genuine attachment to the rights of humanity, but he could not believe that great ends would be answered by the reference of the petition, but much evil might accrue. It contained sentiments which he thought it would be highly improper so far to encourage. One object prayed for in this petition was now in the hands of a committee; let that committee report respecting the Guinea trade, let it be entirely obliterated; to that he would agree with all his heart, but he hoped the House would never intermeddle with the property of any of the citizens. Instead of voting with the worthy member who wished it to lie on the table, he would have it returned to the gentleman who presented it, as the only effectual means of checking an injurious practice. Mr. RUTLEDGE, in addition to his former arguments, observed, that so improper was it to consider this subject that some of the States would never have adopted the federal form of Government if it had not been secured to them that Congress would never legislate on the subject of slavery. Inasmuch, therefore, as it might rouse the jealousy and fears of those States, the least attention paid to it might do mischief. Mr. THATCHER said that gentlemen generally set out wrong, on this subject, and leave off about half right; they debated till they were almost tired, and then the petition was not to be committed. If Congress had not power to legislate on the African trade, then why did they say it was with a committee? If they had power, where was the impropriety of referring, at least that part which could be considered? Would any gentleman say that it was policy not to legislate about 700,000 enemies in the very body of the United States? While they were slaves they were enemies. He declared a greater evil than the very principle could not exist; it was a cancer of immense magnitude, that would some time destroy the body politic, except a proper legislation should prevent the evil. It must come before the House sooner or later. Then why postpone it? It was true the Eastern States were now suffering from the streams which issued from this great and dangerous fountain, but the evil ought to be stopped, ere it become too strong. Mr. BROWN, of Rhode Island, said he was in hopes that every member belonging to the Northern States would have seen by this time the impropriety of encouraging slaves to come from the Southern States to reside as vagabonds and thieves among them, and have been tired of the bad policy. No subject surely was so likely to cause a division of the States as that respecting slaves. He did not hold a slave in the world, he said, but he was as much for supporting the rights and property of those who did, as though he was a slave owner. He considered this as much personal property as a farm or a ship, which was incontestably so. He went into a view of the federal compact, to argue the impropriety of legislating on the subject. This petition, he said, did not come from the blacks, but from a combination of people who had troubled Congress for many years past, and he feared never would cease. He did not fear the power of the 700,000 enemies that the gentleman had pointed out, since there were five millions to withstand them: they could at any time subdue them. He begged that the gentleman, who put the petition on the table, might be desired to take it back again. He was sorry to see the commitment supported by two such worthy members of the House, both good Federalists. [A laugh.] Mr. WALN contended, that at least the House had the power of legislating on the state of free blacks as well as other people, and on the slave trade, much of which was still carrying on from Rhode Island, Boston and Pennsylvania. This ought to be looked into. He denied that any idea had ever entered his mind on presenting the petition either to debate on the subject, or to will an emancipation of the slaves. Gentlemen from the Southern States appeared to lament there were so many among them, but their conduct was very contrary to their declaration. Mr. HILL thought if any evil existed under any law now in force, a committee ought to be appointed, to examine into and correct it: but he hoped the petition would not be committed. It was to be lamented that this kind of property did exist; but it did exist, and was sanctioned by the constitution. That being the case, the House ought to set their faces against any innovations on it, either directly or indirectly. Mr. DENNIS rose, he said, principally because he conceived the petition implicated the justice of the States of Maryland and Delaware, respecting the abominable practice of kidnapping. In justice to the State he represented, he must say that none of this evil was attributable to that State, because they had enacted extremely penal laws to stop it. He wished the petition to lie on the table, because the objects of it appeared to be extremely multifarious, and he believed but few members knew its contents, from the different opinions they had advanced. He wished them to have an opportunity of examining it. Mr. RANDOLPH hoped that the conduct of the House would be so decided as to deter the petitioners, or any persons acting for them, from ever presenting one of a similar nature hereafter. The effects must be extremely injurious. He did wish that the conduct of the House would have been so indignant as to have passed it over without discussion. He should not, therefore, say any thing that would tend to encourage that discussion. The constitution had put it out of the power of the House to do any thing in it, and therefore he hoped the motion for a reference would be lost by a decided majority, and this be the last time the business of the House would be entered upon, and the interest and feelings of the Southern States be put in jeopardy, by similar applications. Mr. CHRISTIE said the gentleman was mistaken, if he thought it would be the last time, for a certain society had thought it their duty to present petitions of this nature to Congress every year since he was acquainted with it; but he hoped this, which came from that source, but through other hands, would have the fate of all the rest, and go under the table instead of upon it. As to the fugitive law, he would wish it to be taken up, and if no other member moved it, he should; but not for the purpose of repeal or weakening, but to make it stronger. There was now a fine laid upon any person who should harbor a black, knowing him or her to be a slave; he wished the provision should be that the persons harboring should know that he or she was not a slave. He mentioned the great desire of his State to prevent kidnapping, for which their laws were very severe. Mr. HARPER had hoped that the House so well understood this subject, as to the people who instigated the petitioners to come forward, who well knew that nothing could be done by Congress, as to decide on it instantly. This was the act of a religious body of people whose fanaticism leads them to think it a bounden duty to come to the House every year, though they now come in a different name. By this measure they had discharged their duty; all that now remained was for the House to discharge theirs. He hoped, from the present time, they should merely let the petition be read and pass it over in silence--for he expected that society would continue presenting petitions. The obvious tendency of agitating this question would only be to create discontent in a class of people whom it was out of the power of the Legislature to change the situation of. He called upon gentlemen to say whether a temper of revolt was not more perceptible in that quarter? It was; and what was the cause of it but that they were not let alone by those people; but if others would disturb them, he hoped at least that House would cease to do it. Mr. DANA said if the petition before the House contained nothing but a farago of the French metaphysics of liberty and equality, he should think that it was likely to produce some of the dreadful scenes of St. Domingo. Or if he believed it was only the effects of a religious fanaticism in a set of men who thought they were doing their duty, though he thought the subject quite out of the power of Congress, he might be disposed to think it quite wrong. But when he perceived a petition, addressed in language which was very decent, and which expressly declared that the petitioners did not wish the House to do what was inconsistent with the constitution, but only asked an amelioration of the severities under which people of their color labored, he thought it ought to be received and committed. He did not think the gentleman who presented it ought to withdraw it, nor was he the least culpable, but executed a duty he conceived him bound to. Mr. JONES said the petition threw so much aspersion upon the State he represented (Georgia) that he must think it his duty to rise. Why was that State to be selected out from all others? However, he should follow the petition in its parts, in order to show that the petitioners actually had asked what it was not in the power of the House to legislate upon--emancipation. It was said to merely affect the slave trade. First, the petitioners contemplated that those people (the slaves) ought to be represented, "with _us_ and the rest of the citizens of the United States." Then they speak of the Federal compact, in which they consider those people as interested in common with others, under these words: "we, the people of the United States of America," &c. I would ask gentlemen whether, with all their philanthropy, they would wish to see those people sitting by their sides deliberating in the councils of the nation? He presumed not. They go on farther and say, "We do not ask for the immediate emancipation of all, but we ask you to prepare the way for the oppressed to go free, that every yoke might be broken, thus keeping up the principle to do unto others as you would they should do unto you." The words need only be read to convince every man what is the tendency of their request. The gentleman farther says that 700,000 men are in bondage. I ask him how he would remedy this evil as he calls it? but I do not think it is any evil; would he have these people turned out in the United States to ravage, murder, and commit every species of crime? I believe it might have been happy for the United States if these people had never been introduced amongst us, but I do believe that they have been immensely benefited by coming amongst us. It was the British Government that transmitted them down to us when in a colonized state; but being here, and being the property of individuals, after obtaining our common liberty, and forming our Federal compact, property and safety were guaranteed to every individual and State in the confederation. How then can this House meddle with that part of our property? The General Government has no power over it. With respect to that part of the petition which said that these people were crowded into cellars and transported to Georgia, Mr. J. informed the House that the importation to that State by sea had been prohibited; none had come there by sea for many years, and offenders against that law were fined £100 sterling for each individual thus introduced. He hoped the petition would be treated with the contempt it merited, and thrown under the table. Mr. RUTLEDGE rose to move that the question might be decided by _yeas_ and _nays_. It was a practice he generally was against, and scarcely ever moved, but he considered this of importance sufficient to demand it. It was a question in which the interests of a great number of people in this country were involved. He had no doubt it would be lost by a very great majority, and he thought it would have a good effect to be recorded by how vast a majority it would be lost. He thought it would be some consolation to his constituents, when he returned home, to say how few of the House of Representatives were the supporters of this dangerous petition. Mr. WALN said if he had known that this petition would have caused so much alarm, he certainly should have desired the petitioners not to present it; but if they had still thought it necessary and been desirous of it, he should, as he then thought it within the power of legislation, and still thought so, have presented it. He thought it his duty, whenever any individual conceived himself injured by a law, to receive his petition, and he thought himself in no wise implicated in the manner, form, or subject of the petition, or answerable for it as containing his opinions. If it should be supposed that the assertions in the petition were unfounded, or bore too hard on a certain State, the only way to ascertain that fact was by referring to a committee, that the necessary inquiries might be reported. He again declared his disapprobation at this subject undergoing any discussion, nor would it have taken place had not the gentleman from South Carolina commenced it. Mr. PLATT conceived that every thing which was brought before that House ought to be committed, unless there was manifest indecency in the language, or it should appear that the relief prayed for could not be granted consistently with the power of the House. In his opinion, except one of these two causes prevented, it unquestionably ought to be thus disposed of. As for indecency of expression, he could perceive none, either in the petition, or in the arguments of the gentlemen who advocated its reference. A third reason indeed might be mentioned, which was, that the persons whose names were signed did not give consent to the petition and therefore it was not their act. Neither of these reasons was proved to have existed. Although, agreeably to the constitution, Congress could not make any laws to prevent the emigration or importation of any persons whom the several States should, at the adoption thereof think proper to admit, yet Congress could, and had made laws relative to fugitives from justice and previous to the year 1800. It was this law they prayed the amelioration of, and that the power of persons over their slaves might be limited, and that the law might be so amended as to prevent its violation. It was for that, and not for the general abolition of slavery they prayed, and surely they ought to be heard; their prayer ought to be committed for that purpose. He disclaimed the least desire, but an abhorrence, of any principle that would rob persons of their property, but at the same time he was not such a dupe to _words_ as to be of the opinion held up by a gentleman, that because the French had used the words "reason" and "philosophy" he should discard them, and with them humanity. Mr. THATCHER thought that to make use of the incapacity of these people to read or write, as an argument against committing their petition, must arise out of prejudice in his colleague against the general object, or he surely never would have resorted to such pitiful, and he might say, mean, virulent remarks. [Mr. T. was here called to order.] This was certainly a "new-fangled doctrine." But the reason why they could not write was because of the degraded state of their minds for want of education; many of them, perhaps, in their youth were in slavery. The gentleman from Georgia had objected to the reference because the petition contained a system of facts which _he said_ was not true? He (Mr. T.) believed they were true, and thus the dispute was in issue. How was this to be ascertained but by inquiry? If the State of Georgia should prove themselves innocent of that black stain, it would be to their honor. But no, said the gentlemen, "We will not have it examined into, because it will make us out to be as _black_ as the petitioners themselves?" Mr. EDMOND observed that the gentleman from South Carolina had called for the yeas and nays for a particular purpose, to wit, that it should be seen how few voted for this intermeddling with the property of the people in the Southern States. Mr. E. said he should vote for the reference, and as that opinion would be attached to his conduct, his reasons ought to accompany his vote. He should be as far from wishing to affect the property of the citizens as any gentleman, much less should he wish to affect the constitution. This appeared to him to be a very respectful petition; it mattered not whether the people were black or white; the petition only was to be regarded, and not the color of the persons, who, representing their grievances, asked for such a relief as the constitution could afford them. Surely then, every measure ought to be adopted to alleviate their sufferings. Was it consistent that the House, instead of a reasonable and patient attention, should come forward and treat this complaint with an inattention which passion only could dictate? Was contempt the way to recommend attachment to the Government? This ferment and scorn could not be necessary, but he was sure it was highly improper and inconsistent. Mr. GALLATIN said that in his opinion there were many parts of the petition exceptionable, but not being so much acquainted with it as might be necessary to form a decision, he could not say whether or not it was in the power of the House to legislate on it. However, seeing this much in the situation with other petitions, he felt disposed, and should vote for its reference. If it should appear improper for Congress to legislate on it, then the committee would so report. He said he was not satisfied that there was no grievance to which the House could apply a remedy; he thought there was such a part. He remembered a petition from Delaware once on one of the complaints, that of kidnapping free negroes; therefore, he conceived it was truth, and could be no insult to the States of Delaware and Maryland to mention it. If so, surely an effectual remedy ought to be applied. In the former State he believed they had made the punishment death, and yet the evil was not prevented, if the complaints of the petitioners were true. Mr. WALN then withdrew his former motion, and moved "that so much of the petition as related to the slave trade carried on from any part of the United States to any foreign place or country; and so much of the said petition as respected fugitives from justice, or escaped from their masters, be referred to the committee appointed on the 12th day of December last on the subject of the slave trade." Mr. RUTLEDGE appealed to the Chair to know whether the motion was in order. Mr. SPEAKER said, perhaps, that was the only deliberative body in the world where a motion, having been made, seconded, and debated, could be withdrawn by either the mover or seconder. But it had been a practice in that House so to do, and there was no rule against it. The motion was therefore perfectly agreeable to order. Mr. RUTLEDGE then moved an adjournment, which was carried--yeas 47, nays 35. FRIDAY, January 3. BENJAMIN HUGER, from South Carolina, appeared, was qualified, and took his seat. _Petition of Free Blacks._ The House resumed the unfinished business of yesterday, on the resolution for referring certain parts of the petition of Absalom Jones and others, when Mr. RUTLEDGE rose to explain his reasons for moving the adjournment yesterday, as not having arisen from a desire of protracting the debate, but because he conceived the Chair misunderstood him on the point of order. When he submitted the question of order to the Chair, it appeared from the decision to be the Speaker's opinion that the question was, whether a member had a right to withdraw a motion in that situation or not. He knew that right to exist, but he doubted of the competency of the House to refer parts of a petition, and not the whole. In his opinion it ought not to be referred, or, if so, the whole ought to be referred generally. He mentioned a petition which was last session presented from Northampton County, praying the repeal of the alien and sedition laws, but in their general zeal in the pursuance of those objects severally, other laws were found fault with, particularly those relating to measures of defence. These were thought to be improper for a reference; on which a motion was made to refer a part, but it was then thought the petition could not be divided. He submitted to the gentleman from Pennsylvania a very easy mode of acquiring the object, which was by withdrawing the petition and advising the petitioners to present one conformable to the decision, and within the constitutional power of the House. Gentlemen were mistaken in saying that petitions of this kind came annually. The session before last the subject was referred to a committee, who made a suitable report upon it, and in order to prevent the continual debate, it was resolved to be a proper object of Judicial, and not of Legislative cognizance. This brought the matter to such an understanding that he hoped he would have heard no more of it. It appeared to have had the good effect of preventing any application during the sitting of last session. The SPEAKER said the question of order, as now explained by the member from South Carolina, was not understood by the Chair. From all the examination and the fruits of inquiry which the Chair had since acquired, it appeared not to be unusual to refer parts of a subject, for parts of the PRESIDENT'S Speech had been referred; also, parts of petitions had frequently been referred; on which account the opinion of the Chair at present, unless an appeal should be made to the House, was, that the motion of the gentleman from Pennsylvania was perfectly in order. Mr. WALN said it would have been very agreeable to him that the question should have been taken on the motion first made to the House; but, on hearing the warmth with which it was contested, and willing to remove the jealousy of several gentlemen in the House, he thought it best to alter the motion to their wishes. It had been suggested that to withdraw the petition for its modification, would be an easy way to acquire the object. He thought it entirely unnecessary to withdraw it in this stage of business. Although he could have wished the words objected to had never been inserted, yet he was not prepared to say that the petitioners had no right to use them. It appeared that these people's sentiments accorded with those of the gentlemen who opposed the reference. They wished to obtain a removal of this great evil when proper: those gentlemen called it an evil which they could wish to get rid of, but they think it cannot be done. Mr. W. said he should not have objected to a resolution importing that it would be improper to legislate on the subject of slavery, but so far as relates to the bad traffic, and the practice of kidnapping, they ought to be examined by a committee. On these accounts he was not authorized, nor was he inclined to withdraw the petition. He was in hopes the gentleman from South Carolina would not have desisted from his motion for calling the yeas and nays; that gentleman wished the House to show the world that this petition was so irritating and alarming as to merit universal contempt and abhorrence. He believed this gentleman was mistaken as to the small number he supposed would vote for its commitment, and therefore wished he would renew the motion on the question as modified. Mr. GOODE then observed that as a public discussion had taken place upon this subject--one from which he thought Congress precluded by the constitution, and one which materially affected the interest and perhaps the safety of a great portion of the United States, and particularly of his constituents, he thought it his duty not only to give his negative in the usual manner, but to call for the pointed disapprobation of the House, and proposed to amend the resolution by adding the following words: "And that the parts of the said petition which invite Congress to legislate upon subjects from which the General Government is precluded by the constitution, have a tendency to create disquiet and jealousy, and ought therefore to receive the pointed disapprobation of this House." Mr. THATCHER said it was the first time that he had ever known any petition or part of a petition receive the "pointed disapprobation of the House" by a resolution, even though the object of it was not within the power of the House. Several petitions had been received upon which the House had no power. He referred to the petition of John Churchman, in December 1791, praying the patronage of Government to facilitate his discovery of the longitude, by enabling him to undertake a voyage to Baffin's Bay. It was reported that great inconvenience operated to prevent the grant prayed for, and no money was allowed, yet no member moved a censure upon the petitioner. Was it a desirable object to do away a great evil? It was professed to be the wish of several gentlemen to eradicate it. No gentleman in the House but appeared desirous of embracing it with all his heart. These people only wished the evil destroyed, but did not point out the form. He was willing, for the sake of argument, to admit that slavery did exist and was sanctioned by the laws and constitution of the United States; he did not believe the fact, but as some other gentlemen did, he would admit it for the present. Surely it would be desirable that this great evil should be destroyed, if it could be done without injury, nay, with advantage, to the possessors. Did the petition go any farther than this? It did not. The second person in the Government of the United States had devised a means to procure this object, as also had a certain learned professor. If it was therefore the desire, as avowed, of those gentlemen, and an equitable means had been devised to acquire it, would the reference of a petition which made that request be improper, or would it be impolitic in gentlemen to examine these plans, and if eligible bring about their execution? Certainly not. Even if a certain sum of money was wanting, he did not believe the House would refuse to appropriate it. Who would withhold a few dollars from his purse to facilitate it? Then, while such are the propositions, a petition in behalf of its accomplishment ought to be heard; if it be not, it must fix a national indignity and stigma which ages of good actions could never wipe away. Mr. DANA was not of the opinion of a number of gentlemen, that the House ought to express its indignation against these petitions. The indignation of that House ought to be limited to certain objects; it might be expressed against an offending nation, but he much doubted whether it became it to express that high sensation against any individuals. He thought no circumstance could occur which called for such condescension, and therefore he could not approve of words so strongly expressed upon an occasion comparatively so trivial. If the gentleman from Virginia would so convey his ideas as to express the impropriety of those subjects for the consideration of this House, he was willing to agree with him. Mr. RUTLEDGE thought it a little extraordinary that when gentlemen from some parts of the Union were positively assured that very serious, nay, dreadful effects, must be the inevitable consequence of their discussion on this subject, they still would persist. He used strong words, he said, because no others would be appropriate. Gentlemen recommended the subject to be calmly argued. Would gentlemen feel calm if measures were taken to destroy most of their property? Would calmness be consistent if entering wedges were prepared to ruin the property of whole estates? If ever it was justifiable to be warm on any subject in the House, it surely was on an occasion like the present, when imminent danger was in view. Yes, we deem this as an entering wedge to an inevitable loss of our property, if persisted in. It appeared by the gentleman's arguments that he had just been reading the opinions of his brother philosopher, Brissot. Three emissaries from St. Domingo appeared in the hall of the Convention, demanding the emancipation of their species from slavery. The Convention were told it would operate as an entering wedge that would go to the destruction of property, and the loss of one of the finest islands in the world; that it would be murderous in the extreme; that it would open scenes which had never been practised since the destruction of Carthage; that a whole rich country would be buried in blood; that thousands would instantly be reduced to abject penury; that the first towns in that fine island would be reduced to a heap of ashes. But those gentlemen said no, it cannot be, all our desires originate in philanthropy--we wish to do good! But, sir, we have lived to see these dreadful scenes. These horrid effects have succeeded what was conceived once to be trifling. Most important consequences may be the result, although gentlemen little apprehend it. But we know the situation of things there, although they do not, and knowing we deprecate it. There have been emissaries amongst us in the Southern States; they have begun their war upon us; an actual organization has commenced; we have had them meeting in their club rooms, and debating on that subject, and determinations have been made. It might be wrong in me to mention these things, because many of those people can read and write, and will be informed of what I am now saying, which they think I did not know, but knowing, I am determined to make use of. Sir, I do believe that persons have been sent from France to feel the pulse of this country, to know whether these are the proper engines to make use of: these people have been talked to; they have been tampered with, and this is going on. They now will see that the argument has been agitated in the Legislature; that the subject of emancipation has been discussed. Is not this extremely wrong, when gentlemen are told how much it puts our property at hazard. Although these people are unable to do any harm, yet the work will be done by gentlemen in this House, _they_ must be answerable for the mischief. Before I had the honor of a seat in this House, one question which was agitated by the people was, how do the General Legislature regard this species of property? I said, our brethren in the Northern States are willing to leave this business entirely to us who possess it--they will not intermeddle. I did hope that they never would take the lead in any arguments of this dangerous tendency. But, as gentlemen have gone into this business, I find I am compelled to use arguments which otherwise ought not to be mentioned. I recollect that gentlemen in France used arguments like the gentleman from Massachusetts: "We can indemnify these proprietors." But how did they do it, or how can it be done?--Not at all. Farther, we were told these things would take place, we need not be alarmed; it was inevitable; that it was reasonable and unavoidable. Sir, it never will take place. There is one alternative which will save us from it, but that alternative I deprecate very much; that is, that we are able to take care of ourselves, and if driven to it, we will take care of ourselves. Mr. JONES had hoped that the decision of Congress when sitting at New York would have put a final stop to any future applications, and the councils of the United States would have been troubled no farther with them. It was justly and wisely proved that it was a difficulty unfit for Congress to attempt, on account of the extremely different local circumstances and species of property possessed by the Northern and Southern members, who were all met in one convention. However, he must do justice to the candor of some gentlemen from the North, who had vindicated their right to this property. Mr. J. did not think there was any more probability of discovering an eligible and just mode of acquiring the object of _emancipation_, than there was in the case referred by the gentleman to Mr. Churchman's discovery of _longitude_. All researches into these attempts were illusory, and both alike impracticable at this time, if ever they would be. However, he was certain that the honorable gentleman's manner of treating the subject would give rise to a just jealousy in those parts of the United States whose property consisted only in slaves. As to the State he represented, as he before said, a very heavy penalty was the fine on each slave imported, and killing, maiming, or ill-treating them was punished severely by the whites. He could not think but the arguments of some gentlemen must originate from improper motives. Mr. EDMOND could not conceive any danger from committing this petition, whatever alarms some gentlemen had apprehended. But as gentlemen apprehended so much danger from committing certain parts of the petition, he would be willing to quiet these alarms, and do every thing reasonable by expressing an idea that Congress would not legislate upon what belonged not to them. The amendment at first proposed, he professed himself much opposed to, upon the ground that the House were about to express a pointed disapprobation towards the petitioners, which he conceived wrong, because no censure could be due where a petition was respectfully addressed. But as now modified he had no objection to adopt the amendment; not that he conceived it important, but because it tended to quiet the minds of some gentlemen in the House. Mr. WALN again said, that it was not his intention to advocate the emancipation of slaves, but only to ameliorate their state. He therefore would cheerfully consent to the amendment as amended. Consent being given by the mover to incorporate the amendment with the original resolution, it was now all before the House in the form of one resolution. Mr. THATCHER said, as an abstract proposition, he should have no objection; he thought the House ought to give no countenance to any thing that it could not legislate on by the constitution; but as he did not believe the petition contained any such proposition, he must adhere to his former sentiments, and could not consent to the incorporation of the words. As amended, he disliked it much less than before, but he did not like it as connected with the first motion. Mr. J. BROWN asked whether it was in order for a gentleman to speak five or six times. Mr. THATCHER said he had spoken but once on this question. The gentleman from Rhode Island need not be afraid, for he was not now going to say much about slavery, which was the nearest to his heart. Mr. T. was fully of the opinion that the House had a right to take up the subject, and give it a full, free, and deliberate discussion, but this did not appear to be the general opinion. As he was opposed to the motion, as amended, he was willing his name should appear against it, even though no other gentleman should think fit to vote with him. Mr. GALLATIN conceived that there certainly were parts of the petition over which that House had no power, for though the petitioners did not pray for emancipation to be completed immediately, yet they anticipated that it would some time be done, and their prayer included a wish that the House would take a preparatory step. As to the amendment, although he did not like the wording of it altogether, he had no objection to the principle, and therefore should vote for it; for he thought it right to say that it was improper for the House to legislate on the subject. What was not specifically acknowledged by the constitution, in his opinion, carried with it a doubt upon which the Legislature ought not to enter. Mr. THATCHER called for a division of the question. Mr. NICHOLAS, on this, expressed some embarrassment as to giving his vote, on which he moved to strike out the latter part. The same appeared to pervade the minds of several gentlemen. Mr. WALN, therefore, to relieve the House from the situation, withdrew his acquiescence to the amendment, so as to leave the questions distinct. The yeas and nays had been several times moved during the embarrassed state of the House, but were only taken once, to wit, on the amendment to the proposition: "And that the parts of the said petition which invite Congress to legislate upon subjects from which the General Government is precluded by the constitution, have a tendency to create disquiet and jealousy, and ought therefore to receive no encouragement or countenance from this House." The question was taken, that the House do agree to the same, and resolved in the affirmative--yeas 85, nay 1, as follows: YEAS.--Willis Alston, George Baer, Theodorus Bailey, Bailey Bartlett, James A. Bayard, John Bird, Phanuel Bishop, Jonathan Brace, John Brown, Robert Brown, Christopher G. Champlin, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, Samuel W. Dana, John Davenport, Franklin Davenport, Thomas T. Davis, John Dawson, John Dennis, George Dent, William Edmond, Joseph Eggleston, Lucas Elmendorph, Thomas Evans, Abiel Foster, Dwight Foster, John Fowler, Jonathan Freeman, Albert Gallatin, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, William Gordon, Edwin Gray, Andrew Gregg, Roger Griswold, William Barry Grove, John A. Hanna, Robert Goodloe Harper, Joseph Heister, Archibald Henderson, William H. Hill, David Holmes, Benjamin Huger, James H. Imlay, George Jackson, James Jones, Aaron Kitchell, Henry Lee, Nathaniel Macon, John Marshall, Lewis R. Morris, Anthony New, John Nicholas, Joseph H. Nicholson, Abraham Nott, Harrison G. Otis, Robert Page, Josiah Parker, Jonas Platt, Leven Powell, John Randolph, John Read, John Rutledge, junior, Samuel Sewall, William Shepard, Richard Stanford, David Stone, Thomas Sumter, Benjamin Taliaferro, John Chew Thomas, Richard Thomas, John Thompson, Abram Trigg, Philip Van Cortlandt, Peleg Wadsworth, Robert Waln, Robert Williams, Lemuel Williams, and Henry Woods. NAY.--George Thatcher. And then the main question, to agree to the said motion, as amended, being taken, it was resolved in the affirmative. TUESDAY, January 7. JAMES SHEAFE, of New Hampshire, appeared, produced his credentials, was qualified, and took his seat in the House. FRIDAY, February 7. _Case of Jonathan Robbins._ The following Message and documents were received from the PRESIDENT OF THE UNITED STATES, which were read, and ordered to lie on the table: _Gentlemen of the House of Representatives_: In consequence of your request to me, conveyed in your resolution of the fourth of this month, I directed the Secretary of State to lay before me copies of the papers intended. These copies, together with his report, I now transmit to the House of Representatives, for the consideration of the members. JOHN ADAMS. UNITED STATES, _Feb. 7, 1800_. DEPARTMENT OF STATE, _February 6, 1800_. The Secretary of State has prepared, as directed, and now respectfully submits to the President of the United States, copies of the papers which probably were contemplated by the House of Representatives, in their resolve of the 4th instant; although no requisition, as the resolve supposes, has ever been received, nor any communication made to the Judge of the District Court of South Carolina, concerning any man by the name of Jonathan Robbins. But by the proceedings before that Judge, as they have been published, it appears that a seaman named Thomas Nash, the subject of the British Minister's requisition, did assume the name of Jonathan Robbins, and make oath "that he was a native of the State of Connecticut, and born in Danbury, in that State." The Secretary, therefore, besides the copy of the requisition, and the copies of his letter to the Judge of the District Court of South Carolina, and of the Judge's answer, has prepared, and herewith encloses, copies of the certificates of the selectmen and town clerk of Danbury, and extracts of letters from Admiral Sir Hyde Parker, satisfactorily proving that the Thomas Nash, calling himself Jonathan Robbins, who, on the requisition of the British Minister, was delivered by the Judge aforesaid, with the assent of the President of the United States, was not an American citizen, but a native Irishman, who to his other crimes added _perjury_, in the hope, thereby, to escape the punishment due to _piracy_ and _murder_. The original certificates of the selectmen and townclerk of Danbury are in the Secretary's possession; and he has compared the extract of Admiral Parker's letter to Mr. Liston with the original, and the extract of the Admiral's letter to the British Consul at Charleston, with the passage as recited in the Consul's original letter to Mr. Liston. All which is respectfully submitted. TIMOTHY PICKERING. Copy of a note from Robert Liston, Esq., Envoy Extraordinary and Minister Plenipotentiary of His Britannic Majesty, to Timothy Pickering, Secretary of State of the United States. PHILADELPHIA, _May 23, 1799_. R. Liston presents his respects to Col. Pickering, Secretary of State. A seaman of the name of Thomas Nash having been committed to jail in Charleston, South Carolina, at the instance of His Majesty's Consul there, on suspicion of his having been an accomplice in the piracy and murder committed on board His Majesty's ship Hermione, and information of the circumstance having been transmitted to Vice Admiral Sir Hyde Parker, a cutter was despatched to Charleston, with an officer on board to whom the man was well known, in order that his person might be identified, and that he should be carried to the West Indies for trial. But on the application of the Consul for the restoration of Nash, in conformity to the treaty of 1794, Judge Bee and the Federal Attorney were of opinion that he could not with propriety be delivered up, without a previous requisition on my part made to the Executive Government of the United States. May I therefore request, sir, that you will be pleased to lay this matter before the President, and procure his orders that the said Thomas Nash be delivered up to justice. Letter from the Secretary of State to Judge Bee. DEPARTMENT OF STATE, _Philadelphia, June 3, 1799_. SIR: Mr. Liston, the Minister of His Britannic Majesty has requested, that Thomas Nash, who was a seaman on board the British frigate Hermione, and who, he is informed, is now a prisoner in the jail of Charleston, should be delivered up. I have stated the matter to the President of the United States. He considers an offence committed on board a public ship of war, on the high seas, to have been committed within the jurisdiction of the nation to whom the ship belongs. Nash is charged, it is understood, with _piracy_ and _murder_, committed by him on board the above mentioned British frigate, on the high seas, and consequently within the jurisdiction of His Britannic Majesty; and therefore, by the 27th article of the Treaty of Amity with Great Britain, Nash ought to be delivered up, as requested by the British Minister, provided such evidence of his criminality be produced as, by the laws of the United States or of South Carolina, would justify his apprehension and commitment for trial, if the offence had been committed within the jurisdiction of the United States. The President has in consequence thereof authorized me to communicate to you "his advice and request" that Thomas Nash may be delivered up to the Consul or other agent of Great Britain, who shall appear to receive him. I have the honor to be, &c. TIMOTHY PICKERING. Hon. THOMAS BEE, _Judge of the District of South Carolina_. Letter from Thomas Bee, Esq., to the Secretary of State, dated Charleston, South Carolina, July 1st, 1799. In compliance with the request of the President of the United States as stated in your favor of the 3d. ult., I gave notice to the British Consul that at the sitting of the district court on this day I should order Thomas Nash, the prisoner charged with having committed murder and piracy on board the British frigate Hermione, on such strong evidence of his criminality as justified his apprehension and commitment for trial, to be brought before me on habeas corpus, in order to his being delivered over agreeably to the 27th article of the Treaty of Amity with Great Britain. The Consul attended in court and requested that the prisoner should remain in jail until he had a convenient opportunity of sending him away. I have therefore directed that he remain in prison, until the Consul shall find it convenient to remove him. I have the honor to be, with great respect, your most obedient servant, THOMAS BEE, _District Judge of South Carolina_. Hon. T. PICKERING, _Secretary of State_. * * * * * DANBURY, _Sept. 16, 1799_. We, the subscribers, selectmen of the town of Danbury, in the State of Connecticut, certify that we have always been the inhabitants of said town, and are from forty-five to fifty-seven years of age, and have never known an inhabitant of this town by the name of Jonathan or Nathan Robbins, and that there has not been, nor now is any family known by the name of Robbins within the limits of said town. Certified, per ELI MYGOT. EBEN BENEDICT. JUSTUS BARNUM. BEN. HICHCOK. * * * * * DANBURY, _Sept 10, 1799_. The subscriber, late town clerk for the town of Danbury, in the State of Connecticut, certifies that he kept the town records twenty-five years, viz: from the year 1771 until the year 1796; that he is now fifty-six years of age, and that he never knew any person by the name of Robbins, born or residing in the said town of Danbury, during that term of twenty-five years, before or since. MAJOR TAYLOR. * * * * * Extract of a letter from Admiral Sir Hyde Parker, to Robert Liston, Esq., Envoy Extraordinary and Minister Plenipotentiary of his Britannic Majesty to the United States, dated PORT ROYAL HARBOR, "_Jamaica, Sept. 9, 1799_. "I have had the honor of receiving duplicates of your Excellency's letters, numbered 10, 11, 12, and, in answer thereto, acquaint you that in consequence of Nash, one of the ringleaders in the mutiny, murders, &c., on board the Hermione, being delivered up by the United States to me, he has been tried at a court martial, and sentenced to suffer death, and afterwards hung in chains, which sentence has been put into execution. He acknowledged himself to be an Irishman." * * * * * Extract of a letter from Benjamin Moodie, Esq., Consul of his Britannic Majesty at Charleston, South Carolina, to Robert Liston, Esq., Envoy of his said Majesty to the United States, dated NOVEMBER 19, 1799. In consequence of many obstacles I had to encounter in obtaining the delivery of Thomas Nash, late of His Majesty's ship Hermione, and of the numerous publications to the northward and in this place, I wrote to Admiral Sir Hyde Parker, requesting he would be good enough to send me minutes of the court martial, to which he answered under date 13th September: "I am to acquaint you that Nash has been executed agreeably to a court martial, and that he confessed himself to be an Irishman; and it further appears, by the Hermione's books, that he was born at Waterford; on the 21st December, 1792, entered a volunteer on board the Dover, received £3 bounty money, and was removed to the Hermione, 28th of January, 1793. And with respect to transmitting the minutes of his trial, that is not in my power, but rests with the Lords of the Admiralty only." MONDAY, February 10. _Amy Dardin's Claim for the Horse Romulus._ The petition of Amy Dardin was called up, and after some opposition, on account of a former reference and decision, was referred to the Committee of Claims. THURSDAY, February 13. _Military Interference in Elections._ Mr. LEIB called up for consideration the following resolution, which he laid on the table on the 4th instant, viz: _Resolved_, That a committee be appointed to _bring in a bill making_ provision for the removal of the regular troops of the United States which may be stationed where an election is held, and that such removal shall take place at least two days previous to such election, and to a distance not less than two miles. Mr. OTIS moved to amend the resolution by striking out the words in _italic_, in the second line, and inserting "inquire into the expediency of." A long debate ensued on this motion, in which it was conceded, on all sides, that the resolution was too definite, and left nothing in the power of the committee to act on, except merely bringing in a bill conformable to it. If excesses had been committed by the military at elections, and they were guilty of improper interference, it seemed to be the wish of every member that some provision should be made to guard against them in future; but they were unwilling to say what that provision should be, until an inquiry were made into the facts stated. The removal of the troops to the distance mentioned, was also particularly objected to, as it might leave fortifications, arsenals, and military stores, for two or three days, entirely unprotected. Mr. LEIB at length withdrew his original proposition, and submitted the following, which was adopted without objection, viz: "_Resolved_, That a committee be appointed to prepare and report a bill, containing such legislative provisions as may be judged expedient, either for removing any military force of the United States, from any place of holding elections, or for preventing their interference in such elections." Mr. MARSHALL, Mr. LEIB and Mr. OTIS, were appointed the committee. _Amendment to the Constitution._ Mr. LIVINGSTON laid the following joint resolution on the table: _Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled_, That the following article be proposed to the Legislatures of the several States, as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said Legislatures, shall be valid as a part of the said constitution, viz: No Judge of any Court of the United States shall, during his continuance in office, or within six months after he may have resigned the same, be appointed to any other than a judiciary office, under the United States. MONDAY, February 17. _Case of Jonathan Robbins._ Mr. RUTLEDGE said, he had expected that some order would have been taken on the Message of the President, before this time, by the gentleman who called for it; but as he had been disappointed, he would now give notice to the honorable member from New York that he would call for some order upon the Message to-morrow. Mr. LIVINGSTON said, the gentleman had momentarily anticipated him; he meant to have moved for a reference to a Committee of the whole House this morning, with an intention to introduce certain resolutions, and he would now make that motion. The question on commitment was put and carried--yeas 50, nays 43; and was made the order of the day for Friday. Mr. BAYARD then laid the following resolution on the table, which was read and referred to the above committee, viz: _Resolved_, That the conduct of the Executive Government of the United States, in relation to the requisition made by his Britannic Majesty's Minister, of the delivery up to justice of Thomas Nash, otherwise called Jonathan Robbins, upon the charge of murder, committed on board of the Hermione British frigate, which said Nash had sought an asylum within the United States, was conformable to the duty of the Government, and to the obligations of good faith stipulated in the 27th article of the Treaty of Amity, Commerce, and Navigation, made with Great Britain. THURSDAY, February 20. _Case of Jonathan Robbins._ Mr. LIVINGSTON proposed the following resolutions: "_Resolved_, That it appears to this House that a person, calling himself Jonathan Robbins, and claiming to be a citizen of the United States, impressed on board a British ship-of-war, was committed for trial in one of the courts of the United States for the alleged crime of piracy and murder, committed on the high seas, on board the British frigate Hermione: That a requisition being, subsequent to such commitment, made by the British Minister to the Executive of the United States, for the delivery of the said person (under the name of Thomas Nash) as a fugitive, under the 27th article of the Treaty with Great Britain, the President of the United States did, by a letter written from the Department of State to the Judge who committed the said person for trial, officially declare his opinion to the said Judge that he 'considered an offence committed on board a public ship of war on the high seas to have been committed within the jurisdiction of the nation to whom the ship belongs;' and, in consequence of such opinion and instruction, did advise and request the said Judge to deliver up the person so claimed to the agent of Great Britain, who should appear to receive him, provided only that the stipulated evidence of his criminality should be produced. That in compliance with such advice and request of the President of the United States, the said person so committed for trial was, by the Judge of the District of South Carolina, without any presentment or trial by jury, or any investigation of his claim to be a citizen of the United States, delivered up to an officer of his Britannic Majesty, and afterwards tried by a court martial, and executed on a charge of mutiny and murder. "_Resolved_, That inasmuch as the Constitution of the United States declares that the Judiciary Power shall extend to all questions arising under the Constitution, laws, and treaties, of the United States, and to all cases of admiralty and maritime jurisdiction: and, also, that the trial of all crimes (except in cases of impeachment) shall be by jury; and that such trial shall be held in the State where such crime shall have been committed; but when not committed within any State, then at such place or places as Congress may by law have directed; and inasmuch as it is directed by law that the offence of murder committed on the high seas shall be deemed to be piracy and murder, and that 'all crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be tried in the district where the offender is apprehended, or into which he may be first brought:' therefore the several questions, whether the alleged crime of piracy and murder was committed within the exclusive jurisdiction of Great Britain; whether it comes within the purview of the said twenty-seventh article; and whether a person stating that he was an American citizen, and had committed the act of which he was accused in attempting to regain his liberty from illegal imprisonment, ought to be delivered up, without any investigation of his claims to citizenship, or inquiry into the facts alleged in his defence, are all matters exclusively of judicial inquiry as arising from treaties, laws, constitutional provisions, and cases of admiralty and maritime jurisdiction. "_Resolved_, That the decision of those questions by the President of the United States, against the jurisdiction of the courts of the United States, in a case where those courts had already assumed and exercised jurisdiction: and his advice and request to the Judge of the district court that the person thus charged should be delivered up, provided only such evidence of his criminality should be produced as would justify his apprehension and commitment for trial, are a dangerous interference of the Executive with Judicial decisions; and that the compliance with such advice and request on the part of the Judge of the District Court of South Carolina, is a sacrifice of the Constitutional independence of the Judicial power, and exposes the administration thereof to suspicion and reproach." The question of reference to the Committee of the Whole was taken and carried--yeas 55. The House then adjourned. FRIDAY, February 21. _Eulogium on the Character of Washington._ A message was received from the Senate informing the House that the Senate had this day come to the following resolution, viz: "_Resolved_, That the Senate will to-morrow, at half past 12 o'clock, meet in the Senate Chamber, and from thence walk in procession to the church in Race street, to hear the eulogium to be pronounced on the character of General Washington." Ordered to lie on the table. The SPEAKER said he was requested, by a member of the Catholic church, to inform the House that seats were provided for the accommodation of such members as would please to attend to hear the delivery of the oration to-morrow. Mr. RUTLEDGE said, before the receipt of the message from the Senate, he had intended to move that when the House adjourn they do adjourn till Monday; but the Senate having informed the House that they intended to walk in procession, he conceived this House ought to come to a similar resolution, and moved the following: "_Resolved_, That the House of Representatives will meet to-morrow, at half-past 12 o'clock, at their Chamber, and from thence walk in procession to the church in Race street, to hear the eulogium there to be pronounced on the character of General Washington." It was objected to this resolution, that it had not been contemplated this House would walk in procession, no arrangement having been made for that purpose; and that as it might be the wish of several members to attend the oration at the Catholic Church in preference to the one in Race street, it ought to be left to their own option. The question on the resolution was put and negatived--yeas 40, nays 43. MONDAY, February 24. _Western Lands._ The House resolved itself into a Committee of the Whole on the report made the 18th instant, by the committee appointed to inquire whether any, and, if any, what, alterations are necessary in the laws providing for the sale of the lands of the United States north-west of the Ohio; and, after some time spent therein, the committee rose and reported several resolutions thereupon; which were severally twice read, and agreed to by the House, as follows: _Resolved_, That all the townships directed to be sold, either in quarter townships or in tracts of one mile square, by the act "providing for the sale of the lands of the United States, in the Territory north-west of the river Ohio, and above the mouth of Kentucky River," shall be subdivided into half sections, containing, as nearly as may be, three hundred and twenty acres each: the additional expense of surveying to be paid by the purchaser, at the rate of three dollars per tract. _Resolved_, That all the said lands shall be offered for sale at public sale, in tracts of three hundred and twenty acres as above directed: _Provided_, That the same shall not be sold under the price of two dollars per acre, and that the sale shall be at the following places, to wit: All the lands contained in the seven first ranges of townships, and north of the same, shall be offered for sale at Pittsburg. All the lands contained in the eight next ranges of townships, shall be offered for sale at Marietta. All the lands lying west of the fifteen first ranges of townships, and east of the Sciota River, shall be offered for sale at Chillicothe. All the lands lying below the Great Miami shall be offered for sale at Cincinnati. _Resolved_, That one or more land offices shall be opened in the North-western Territory, and that every person be permitted to locate and purchase, at the rate of two dollars per acre, one or more of the half sections that shall not have been sold at public sale. _Resolved_, That the payments for lands purchased either at public or private sale, may be made as heretofore in public securities, and shall be made in the following manner, and under the following conditions, viz: 1st. At the time of purchase, every purchaser shall deposit one-twentieth part of the amount of purchase-money; to be forfeited, if, within three months, one-fourth of the purchase-money, including the said twentieth part, is not paid. 2d. One-fourth of the purchase-money to be paid as aforesaid, within three months, and the other three-fourths in three equal payments, within two, three, and four years, respectively, after the date of the purchase. 3d. No interest to be charged in case of punctual payment; but interest at the rate of six per cent. a year, to be charged from the date of purchase, on any part of the purchase-money which shall not have been paid at the time, respectively, when the same shall have become due. 4th. A discount at the rate of eight per cent. a year, to be allowed on any of the three last payments, which shall be paid before the same shall have become due. 5th. If any tract shall not be completely paid for within one year after the date of the last payment, the tract to be sold in such manner as shall be provided by law; and after paying the balance due to the United States, including interest, the surplus, if any, to be returned to the original purchaser. _Ordered_, That a bill or bills be brought in, pursuant to the said resolutions; and that Mr. HARRISON, Mr. BRACE, Mr. GORDON, Mr. DAVIS, Mr. LYMAN, and Mr. GALLATIN, do prepare and bring in the same. TUESDAY, February 25. _Case of Jonathan Robbins._ The House having resolved itself into a Committee of the Whole on the Message of the PRESIDENT respecting Jonathan Robbins, a short debate took place whether the committee should take up the business of the resolution first proposed by Mr. BAYARD, or those subsequently offered by Mr. LIVINGSTON. Mr. BAYARD seemed inclined to withdraw his motion, but the committee seeming of opinion that both resolutions were within their jurisdiction, and that they might proceed on either, the question was taken whether the committee would proceed on the resolutions of Mr. LIVINGSTON and carried in the affirmative.[49] Messrs. BAYARD, RUTLEDGE, OTIS, &c., voting in favor of the question, and Messrs. LIVINGSTON, NICHOLAS, &c., against it. Mr. LIVINGSTON then entered upon an argument in support of the resolutions which he had some days before submitted to the House, and which now were taken up. Soon after he began the discussion, he was proceeding to read a deposition of Jonathan Robbins, and certificates accompanying the same, to prove himself a citizen of the United States, in which the deponent swore, before the court of South Carolina, that he was born at Danbury in the State of Connecticut, and that he was impressed from on board the American brig Betsey, by the crew of the British frigate, about two years before, where he was detained contrary to his will until the mutiny occurred. Mr. BAYARD opposed the reference to a fact so incompetently authenticated as the report of a case upon newspaper testimony, especially when, if it had been the desire of the gentleman to have introduced it as evidence, it was extremely easy to have procured the record of the court before he proceeded on his allegations. If such evidence as this was to be admitted, other and perhaps more important evidence might next be introduced to impose on the committee. Besides, it certainly must be looked upon as _ex parte_ evidence, which it was impossible to repel. Mr. B. submitted to the Chair whether it would be in order to admit any fresh evidence to support the resolutions, when all the documents which had been asked for, and which had come to the knowledge of the Executive, had been submitted to the House. Mr. GALLATIN, on the question of order, contended for the admission: this document, he said, was referred to as authentic, in his letter. He says, "That, by the proceedings before that judge, (Bee,) as they have been published, it appears that a seaman named Thomas Nash did assume the name of Jonathan Robbins, and make oath that he was a native of the State of Connecticut," &c. Certainly it cannot be deemed improper to refer to the identical document there mentioned. If it was proper for the Secretary of State to make the allusion, the House could take it up under the same idea. He did not think it was introduced as evidence before the committee. Mr. DANA said he was very sorry the gentleman had been interrupted; he could not think of admitting it as evidence, but the gentleman might read it as part of his speech, which perhaps might otherwise have a chasm in it. Mr. LIVINGSTON said he did wish to read this paper as part of his speech; and he believed it a very material part, because it was a justification of a point which he wished to establish; he wished to show the committee that Jonathan Robbins claimed to be an American citizen, and that he said he was impressed. This he swore to in court; and that he did so, he hoped would be admitted. He said he only introduced it with this view. Surely he could not be so far mistaken in his law knowledge as to be thought to have said that the culprit could be evidence in his own behalf. If _he did say_ he was a citizen, then the matter, upon examination, must appear more serious than gentlemen would be willing to think. Mr. BAYARD had no doubt but it was the gentleman's intention to impress the force of the facts contained in that paper upon the minds of that committee; and to suppose it would have no impression would be absurd. It would afterwards be said that this man was admitted to be an impressed American citizen, and that he was praiseworthy in committing what would then be called the homicide. The decision of the committee would be much affected, he said, by the kind of evidence which was adduced. If this was admitted, it would be impossible to ascertain the extent of the principle. Other depositions may be produced--indeed, he had no doubt but the gentleman could get proof to any point which he might think it material to ascertain. In saying this, he did not mean to insinuate that any improper steps would be taken by that gentleman, but there were volunteers enough to be found who would step forward in order to answer a party purpose, and make oath of any thing. Mr. LIVINGSTON supposed he should increase the astonishment of gentlemen still more when he declared that he did not believe a word of the affidavit; but he believed Nash was an Irishman, and that he entered on board and committed all the crimes charged to him. It was clear that this affidavit could not be evidence. In admitting this, he believed he did not surrender one point of the resolutions; he should prove that all which he wished to ascertain was that such _claim_ was made to the court. Mr. BAYARD asked where could be the necessity of proving a fact which every member of the House was willing to admit. All acknowledged that Nash _claimed_ to be an American citizen; but perhaps the wish of the gentleman was to have additional light on this subject, on which account he introduced the deposition. But, Mr. B. said, he was willing only to proceed upon what the House knew from the documents before them, and not take a step on precarious ground. It must be well known what the gentleman wanted to get this admission for; he no doubt wished to prove that, upon his own mere suggestion, he was an American citizen, and that he was impressed--he was entitled to a trial by jury in this country, and on that account the act of sending him away was unconstitutional. This would lead to an extensive field of argument. If there was any necessity for more evidence, or to call witnesses to the bar of the House, let proper measures be taken to procure them, but let them not come forward in any other way. Mr. DANA read the resolution first offered to the House for a call for papers relative to Jonathan Robbins; this was answered, he said, by the Secretary of State, that no requisition or proceedings had been had in that name; but he presumed allusion was made to the case of Thomas Nash, concerning whom proceedings were had in the District Court of South Carolina; in that way, and that only, the Secretary made reference to the printed report. In this blundering way, Mr. D. said, the business was begun. [He was called to order.] In addition to this, he said, the proceedings of gentlemen were erroneous; but, notwithstanding that, Mr. D. said, he would gratify the feelings of the gentleman, as far as his vote would go, for him to read it, but only as part of his speech. No doubt he wished to support some point of his argument by it, and in that view he had a right to read it; but that it was evidence, he denied. The CHAIRMAN having stated his reasons, concluded with an opinion that the member could not proceed to read the affidavit. Mr. GALLATIN appealed to the committee from the decision of the Chair; when there appeared 39 in favor of the decision, and 48 against it. At this point the committee rose, and had leave to sit again. WEDNESDAY, February 26. _Case of Jonathan Robbins._ Mr. DAVIS moved that the Committee of the whole House be discharged from the further consideration of the resolutions proposed by Mr. LIVINGSTON and Mr. BAYARD, on the affair of Jonathan Robbins. The small progress, Mr. D. said, which was made yesterday in the discussion, fully convinced his mind that nothing at all would be done in it; besides, were he convinced that the subject would be impartially conducted, he did not know of any possible good that could arise from the adoption of the resolutions. If there had been any error in the proceedings of the Executive, he conceived that error would correct itself. If there was an improper interference, he was certain it could not have arisen from improper motives, and therefore he sincerely hoped he should not be called upon to give an opinion on the subject. Nor, on the other hand, was he at all prepared to compliment the Executive, or any officer of the Government, for having done what he thought to be right. If he had done right, it was his duty. He did not think it of any great importance; but, most assuredly, if the argument was extended, it would be made a case of much importance. It was better, however, to let the case of Jonathan Robbins sleep in the Committee of the Whole, where it then was. He was not prepared to criminate, nor was he prepared to applaud. Mr. RANDOLPH said, that no gentleman had a higher respect for the motives of the gentleman from Kentucky than himself; but, however disagreeable it might be, he must differ from him in his present opinion. He really hoped the gentleman would reconsider the motion he had made, and not stop the gentleman from New York in this early stage of the business. If there were any defects in the papers, and their authenticity was questionable, it must not arise from the gentleman from New York, but from those whose duty it was to furnish all the facts relative to the subject. He was obliged to read a printed paper, because those with whom the authoritative copies are, have not thought proper to furnish the House with them. He hoped, if a stop was put to the proceedings, it would not be to discharge the committee, but to call for authentic copies of all the papers within the reach of the Government. It must be acknowledged that the man whose case the House are considering did put in his claims to citizenship, and to the protection of his country on that account. If that acknowledgment is refused on account of the paper which has been produced being a newspaper, reference must be made to what is within the reach of the House--more authentic papers. Mr. H. LEE considered the motion would have the complete effect any gentleman could wish whose desire it was to reprobate the conduct of the Administration of our Government. How could the motion be necessary--how be useful? If they were to ask more evidence, said Mr. L., I would vote for it to be produced; they have brought the subject before the House--let us see it in the purest colors which it can be placed in. We are ready to meet them here; we are willing they should have every evidence that can be obtained to elucidate their charge; but let not the Executive be hung up to reproach without a trial; let not suspicion be encouraged, which must have all the effects of a substantiated charge. I wish them to go on with the discussion, that all the truth may be disclosed, and every fair light be given which the case will bear; for now the people of the United States have their eyes fixed upon our proceedings on this important question. Mr. MACON was in favor of the motion. If the Committee of the Whole was not to be discharged, he hoped at least the subject would be postponed till the public business of the session was over; there were many public bills, he said, that must be passed. The House was called upon to judge with almost no testimony, and yet upon this uncertain ground, perhaps a whole week might be spent of the most precious time of the House; for if the House was to rise at the time proposed, the loss of this time would certainly be felt. As to the impression it would leave on the minds of the people, they had as many facts to judge from as the House, and they certainly would form an opinion, whether the House did so, or not. Gentlemen were very much mistaken, he said, if they undertook to lead the people; they would think, and they would show what their judgment was when a proper time came for that purpose. The time the people would take to show their approbation or disapprobation of the measures of the Administration was at elections, and then they would do it. Mr. DANA was against the postponement of the subject, or the rising of the committee. It was to be recollected that the business had assumed its present shape only in consequence of the zeal of the gentleman from New York, and his coadjutors, to censure the Executive. On the 7th of February, it was committed to the whole House; contrary to the opinion of a number of gentlemen, who wished the facts investigated by a select committee; thirteen days then elapsed before he had prepared his resolutions--resolutions not calculated to make an inquiry into the conduct of the Executive, but expressive of the most pungent censure upon his conduct. These resolutions were produced upon the papers which, at the desire of those gentlemen, were submitted to the House. The only question then, is, Do the papers upon which those resolutions are predicated warrant the censure contained in them, or not?--It certainly would be a high reproach to the very idea of a public inquisition to admit more evidence upon those grounds. Still, however, let gentlemen go on in their heterogeneous proceedings, the House would have the wisdom justly to appreciate the various attempts made to clear themselves of a predicament in which their over-arduous attempts to censure had thrown them. Mr. LIVINGSTON conceived it his duty to answer the observations of the gentleman from Connecticut, (Mr. DANA,) as to the resolutions being founded upon the facts then before the House. He did not think the facts were precisely sufficient to warrant every idea contained in the resolutions. When the original call for papers was agreed to by the House, he had hoped that something more authentic than newspaper testimony would have been referred to by the Executive; and upon that he was now compelled to act, if at all. The gentleman has said that my zeal and that of my coadjutors, to censure the Executive, has brought us into this situation. Who, sir, I would ask the gentleman, are my coadjutors? That gentleman himself was my coadjutor, and every gentleman in the House, because the resolution was adopted. The House directed the inquiry, and every gentleman must therefore take the burden, in part, with me. Mr. CRAIK said, that very early in this business he thought the House were entering into it very improperly, either having nothing at all to do with it, or else taking wrong measures, if they had; he thought then, and was yet of opinion, that if the object was to impeach the President, measures ought to have been taken accordingly. He never did look upon the House of Representatives as having either the power to censure or to approbate the conduct of the Executive, and, therefore, he equally disapproved of the resolutions of the gentlemen from New York and Delaware; and, upon that ground, he felt strongly inclined to vote with the gentleman from Kentucky for giving the whole subject the go by, and getting clear of it by any possible means. Mr. HARPER agreed with the gentleman, that it would be folly for the House to spend time in useless discussion, which could lead to no decision; but, viewing this resolution as he did, he must conclude it of more importance; he thought it the direct road to an impeachment of the President of the United States, and, if so, surely it must appear important. The resolution declared, in express terms, that the Executive had exercised unconstitutional powers--one of the most dangerous crimes that he could commit. If he had so exercised his power, the inevitable consequence must be, that the President of the United States must be impeached by this House. Then, how could any gentleman say this was a trifling question, and one with which the House had nothing at all to do? Certainly no question can be more important. Mr. RUTLEDGE regretted that he could not join with his friend from Maryland, (Mr. CRAIK,) in thinking this consideration useless; he believed the attention of the people had been called to view this subject, and they were anxiously looking for a decision in some way. Neither did he think, with his honorable friend, that the House had nothing to do with it, because no impeachment could grow out of it. It was impossible to say what the gentleman meditated in his resolutions, but one thing was certain, if the gentleman has wished to promote an impeachment, he could not have taken a more direct means for it, if the resolutions should be carried. Mr. KITCHELL thought no good could arise from the investigation of this subject, because he did not know what was to be done in it, let the decision be what it might. The gentleman from South Carolina (Mr. HARPER) wished to have an opportunity of showing that every part of the resolution was built on false ground. Every gentleman in the House was not so fond of speaking nor of hearing as was that gentleman, and he hoped, merely on that account, that the House would not spend time on what (in his opinion) could not possibly lead to impeachment. What effect could a discussion have, but to show the world that there were _parties_ in the House, and to raise a rancorous disposition? He did not know what there was in the resolution that could lead to an impeachment, nor did he know what the House, in their censorial capacity, had to do but to impeach. He believed it out of the power of the House to applaud. In short, he did not think they had any thing to do with it. Mr. NICHOLAS hoped the discussion would proceed. Although there might not be sufficient ground on which to impeach the Executive, he could not agree that, therefore, no inquiry ought to be made into his conduct; there might be an error in his conduct, and yet no impeachment be necessary to be raised out of it; and, if so, it would be extremely wrong to suffer it to go out to the world without a decision, after the subject had once been taken up by the House. Where there might be no bad intention or wicked design, the action might be of a dangerous tendency, and proper to be inquired into, in order to express an opinion thereupon. Mr. N. said he was well pleased that his opinion, that the motion ought to be negatived, accorded with that of the gentleman from South Carolina, because it would afford him an opportunity of showing what he said he could show. Mr. BAYARD had no doubt of the competency of the House either to impeach, to censure, or to approbate the conduct of the Executive, and of course both the resolutions were in their power. Several gentlemen had intimated that the authentic evidence and the whole of the documents were not before the House, and that the Executive Department was to blame for the deficiency. It appeared that the gentleman himself had forgotten the import of his resolution; it called for such documents as might be in possession of the Department of State. Now, what could possibly be in possession of that Department? The President of the United States had his duties to perform, and the judge of the district his duties; each had their separate documents; and, as neither interfered with the other, therefore, it could not be expected to be in the power of the President to furnish the papers belonging to the courts of South Carolina, any further than they came within the joint duties of both. Agreeably to treaty, the British Consul made a requisition for the person; a copy of this, and the several letters and instructions, were sent to the House, but it was not in the power of the Executive to order the judge to furnish him with a record of the proceedings; he was not bound to furnish it if the President had called for it, and no doubt he had furnished the House with every paper in his possession. Mr. OTIS said, when first the motion was made by the gentleman from Kentucky, he felt for a moment inclined to lean to it; the motives of that gentleman appeared to be so candid and liberal, that, for the moment, Mr. O. confessed, his feelings got the better of his reason. But a short reflection induced him to change an opinion thus hastily formed, and he felt satisfied that to vote with him, would be to display, in the conduct of gentlemen who wished to support the Administration of this country, worse than censure. He joined that gentleman in regret that it had gone so far, but certainly it was a subject of the most irritating nature possible: a charge the most serious; a breach of law by the Executive Magistrate, who is bound to support it and see it carried into effect. It is certainly a charge of much importance, and however disagreeable it might feel to him, Mr. O. said, he must vote that every argument should be used that could possibly tend to substantiate the charge, that nothing of truth might be hidden. Mr. O. said he did not know to what points the evidence required by the gentleman from New York could apply, except it was to that of his being an American citizen, and of his being impressed. An affidavit was produced to prove these facts, but it would be found from an examination of the documents that nothing relating to those points was in the office of the Department of State; for the date of the affidavit of Robbins is the 25th of July, but the order of the Secretary of State bears date the 5th of June, so that no papers as to his claim can be in the possession of that department. Mr. O. thought the documents before the House contained every thing that was important to the point. Mr. CRAIK was sorry that gentlemen who advocated this motion should be charged with an opposition to the administration of Government; he believed his conduct had heretofore evinced a different line of conduct. He still denied that the mode taken by the resolution could lead to impeachment. It certainly did contain a very great censure, and one which the House had no authority to inflict. Mr. GALLATIN considered the motion to be grounded on two ideas; that there was not sufficient foundation for the House to act upon, and therefore that it was necessary to discharge the committee, or postpone the subject for want of further evidence. It is clear, said Mr. G., that the evidence is not sufficient to impeach the District Judge of South Carolina. If an impeachment of him was the object, it would be impossible to carry it forward without an authoritative copy of the record of the court; but if there was no intention to impeach, he did not think there was any material evidence wanted in order to decide upon the resolution, since it only meant an implication of censure upon the Executive and the District Judge, and not impeachment. Mr. G. agreed there was at first sight some weight in the sentiment expressed by the gentleman from Maryland, (Mr. CRAIK,) that the House had only a power to impeach but not to censure; but certainly, when it was considered that an act might be committed without any ill motive, and yet the act be injurious, it could not be the subject of impeachment, but it might be of censure. The same act committed with a criminal motive would be impeachable, which without it would be of a nature not to admit of it. Again: Mr. G. thought that though the House might have ground whereupon to censure, they ought not, at any time; but they had exercised that power. They had in a number of cases approved of the conduct of the President, and if the act of approbation had been done, they surely had as much power to disapprove and censure. The question was then taken on the motion to discharge the Committee of the Whole from the further consideration, and negatived--yeas 14, nays 76. THURSDAY, February 27. Another member, to wit, JOHN SMITH, from New York, appeared, produced his credentials, was qualified, and took his seat. _Case of Jonathan Robbins._ Mr. DAVIS said, as the House had yesterday thought proper to negative a proposition to discharge the Committee of the Whole from the further consideration of the business, and as one great motive for that motion was the incompetency of evidence before the House, and as he knew it was in the power of the House to procure that evidence by a proper application, he hoped gentlemen would now indulge him in the adoption of the following, which he moved, viz: _Resolved_, That the President of the United States be requested to direct the proper officer to lay before this House a copy of the proceedings of the court held in the district of South Carolina, in the case of Thomas Nash, calling himself Jonathan Robbins. Mr. BAYARD said, if he was persuaded, or if the gentleman could convince him that there was any particular evidence in the hands of any officer that would tend to throw such light as to give the least explanation to the case, he certainly would be willing to accord with the resolution; but he believed every necessary fact was before the House, and this had been acknowledged by several gentlemen. If the object was to prove that Nash was an American citizen, and that he was impressed, that could not be necessary as it respected the resolutions of the gentleman from New York, for that gentleman himself had acknowledged that he believed no such thing, but that the whole claim was falsehood. Would the gentleman, then, inform the House what point he wished to ascertain, or in what he expected additional proof? He wished information, farther, who was the "proper officer" to whom reference was expected to be made. There are but two officers at all in view, one is the Secretary of State, the other the District Judge of South Carolina; the gentleman could not suppose that the Judge would be able to transmit the records of that court previous to the adjournment of the House; and if it could be obtained, no evidence to the point could be expected from him. If, on the other hand, it was meant to call on the Secretary of State, it was not to be expected, from the nature of the case, that any more documents were in his hands than those already furnished; he had given copies of the correspondence and requisition, which, it might be fairly inferred, from the nature of his office, was all of which he could be possessed. But if any gentleman doubted this fact, he could apply to the office of the Secretary of State, from whom he could procure whatever was in his possession. If it was the intention of the House to close this very disagreeable business in the present session, they must negative the resolution and let the discussion go forward. The gentleman who brought forward the resolution ought to have been provided with every document that was necessary to support the charges, before he suffered them to appear. However, he did not think but the gentleman who proposed the resolutions thought his grounds were quite sufficient to support them. Mr. NICHOLAS said he always believed that the testimony was incomplete, but when he heard a gentleman get up and mention particular testimony which he considered so important that without it he should not know how to vote, whatever, Mr. N. said, might have been his former satisfaction as to the establishment of the points, he certainly must now be inclined to grant gentlemen every point of evidence that they should think necessary, if within the reach of the House. One particular piece of testimony had been mentioned, viz: that the man had filed an affidavit that he was an American citizen and was impressed on board a British man-of-war. Could any gentleman pretend to say that no inference might be drawn from this source and the concomitant facts? The gentleman from New York, to be sure, had declared his satisfaction with the facts that had been produced to the House, but did the gentleman from Delaware know that this was the case with any other gentleman in the House? That gentleman's conclusions and impressions were not to be taken as the opinions of others, nor were others obliged to be satisfied because he was; and therefore to couple others in a measure to which they were not privy, and to ascribe opinions to them which they had not expressed, was at least unfair. Mr. DANA thought this a most extraordinary resolution indeed? Was the President of the United States the clerk of the court, to keep the records of it? What had the President to do with the proceedings of that court? It was certainly a total departure from all the forms of judicial proceedings to suppose a thing of the kind. The gentlemen must certainly have mistaken the situation held by the President, or they would never have made such a vast departure from order and propriety of proceeding. The President is not the public accuser; he is not to be called upon for papers with which he has nothing to do. When he found gentlemen outraging every thing that belonged to judicial propriety; when he found them stumbling into error after error, and departing totally from all jurisprudential propriety, Mr. D. said, he could not avoid rising to oppose it. Mr. LIVINGSTON said he did hope that this motion would not have been brought forward; but as he meant to vote in favor of it, after having declared his satisfaction with the documents, as sufficient to support his resolutions, he should be accused of advocating a question of which he had before spoken apparently differently, unless he should now give his reasons; and lest he should be accused of a desire to keep alive a calumny against the President of the United States, an effect which had been stated, he took opportunity to answer the insinuation by saying that he as much abhorred so mean a principle as any gentleman in the House. Mr. MARSHALL said, it was with no inconsiderable regret that he perceived so much of the time of the House, which ought to be devoted to more beneficial purposes, employed in preliminary discussion. He thought that it was impossible the House could agree to a postponement, which the motion under consideration must cause when it was reflected how much time must be employed in procuring those papers--it could not take less than a month; for they could only be found, he would presume to say in the Court of the District of South Carolina: it was therefore scarcely to be expected that they could be obtained until just before the rising of the House, a period, if they arrived before the House rose, too late for their consideration. Mr. BAYARD said he could not distinguish between the present motion and one yesterday negatived, because it must operate as a discharge upon the Committee of the whole House. There could be no doubt but the Secretary of State had furnished all the papers relative to the business in his possession--indeed, he could assuredly say so. He said he held in his hand a letter from the Secretary of State, in answer to one from an honorable member of the House inquiring whether there were any more documents in his office; he answered that he had no certified copy whatever but those which he had furnished the President with, from whom they came to the House. Gentlemen must then perceive that the mere operation of this resolution was an absolute and inevitable postponement of the business till another session. Many gentlemen, who were yesterday ashamed to vote for a postponement, would now have a plausible cover for their vote by calling for additional proof, to accomplish the object of the resolution of yesterday; and thus he feared it would have many advocates, but, however specious the pretext, he hoped it would not be carried. Mr. RUTLEDGE conceived this motion to be the same as to postpone the business. Further information was wanted, and that information could alone come from South Carolina. He wished the gentleman from Kentucky would read the resolution before he pressed his motion: he would find that the District Judge was not charged; no, it was only a charge against the Executive; there was not a word of irregularity of proceeding in the Court, but the Executive was seriously charged. Mr. DAVIS explained. He said his objects were to have the record in order to see whether Robbins did produce a certificate that he was an American citizen; to see a copy of the warrant by which he was committed; and thirdly, to know what stratagem or what proceedings were used to take him out of the cognizance of the Court, where he must have remained, if the President had not interfered. These things he wished to ascertain, but that would be impossible without the court record. Mr. RUTLEDGE said, he conceived this to be the object, but he by no means thought that the gentleman would be satisfied on these points, were he to be possessed of the record. The gentleman might inquire the reasons for the Executive and Judicial conduct being as it was, but perhaps he would not receive the information. Every gentleman in the House would unite their vote to procure all the testimony within their reach, so as to enable the House to prosecute the business. We know, said Mr. R., what monstrous clamor has been raised about this business; we know that great pains have been taken to make the people believe that their fellow-citizen has been torn from his country; that he has been impressed into a foreign service; that the treaty has been violated; that their fellow-citizen has been taken to a foreign country, and there been tried in a summary manner and executed. We have been told for months past that this business would be inquired into; we wish not to avoid it; we will by all means in our power assist it; we have done it. Some time since papers were asked for, we agreed with gentlemen that they should be furnished; it was done, and they are now on your table. They have been there many days; so that gentlemen had sufficient time, long before this, to have known whether they were satisfied or not. The gentleman himself who brought forward the resolutions affected to be satisfied, but, in compliance with the wish of his friends, he now wishes to postpone it. We want to bring the matter to a decision, and so far as we can accommodate gentlemen and avoid delay we will do it. Mr. NICHOLSON rose to correct what he considered a mistake in the gentleman last up, (Mr. RUTLEDGE,) when he said that the Executive only was implicated in the resolutions; he conceived that the District Judge of South Carolina was implicated, and that the papers of that court were necessary to examine the conduct of that judge. He read the resolution, and contended that his deduction was accurate. Mr. N. said he wanted to know whether the District Judge of South Carolina had committed this man for trial; this would appear or be disproved by the warrant. That the President of the United States was not to be considered as the servant of that House, he was willing to admit, but he did not think that the President might, with propriety, apply to the judge of the district for the documents of the court; and he did not believe that the President would object to make the application. However, the object he presumed was to procure the papers, no matter from whom; that being the object, he hoped the mover of the resolution would withdraw it, in order to accommodate it more to the feelings of some members in the House, by adopting something like the following: _Resolved_, That the Speaker of the House of Representatives be requested to procure, from the Clerk of the District Court of South Carolina, copies, under seal, of the proceedings of that court, together with the evidence produced in the case relative to the requisition for Thomas Nash, alias Jonathan Robbins, who was delivered to His Britannic Majesty's Consul. Mr. DAVIS withdrew his resolution, and Mr. NICHOLAS moved the substitute, which was now before the House. Mr. HARPER moved a postponement of this resolution to this day week. The object of the resolution which was before the Committee of the Whole was twofold--a charge on the President, and a charge on the District Judge. So much as related to the President of the United States, it was manifest that the testimony called for by this resolution could have no effect whatever upon him, because he left the whole to the judge. The President went no further than to declare that if it should appear that the acts committed by this man came within the purview of the British Treaty, the man ought to be delivered up conformably to that stipulation. Mr. NICHOLAS thought, with the gentleman last up, that if the only inquiry was as to the conduct of the President, or if the inquiry was only to respect the judge, the papers might be dispensed with; but it was otherwise--the conduct of both was called forth to view by the resolutions, but how far the conduct of either may be reprehensible, depended on the testimony which might appear before the House. It was impossible to say what the President had done until the documents should be seen. If gentlemen refused the inquiry being made of the court in South Carolina, they, by that act, made the President answerable for every part of the facts, which he believed they would not pretend to do. He really believed it extremely important to know what steps had been taken in this very serious business, to know whether the man was in course for trial, and whether the President had acted in the hasty and premature manner which was stated, in delivering him up. Mr. GALLATIN could not help observing the disposition which gentlemen evinced of placing the opinions and sensations expressed by one gentleman to the account of others. To take a fair view of the resolutions, what did they amount to? Nothing more than the deductions which one man had drawn from the message sent to this House by the Executive: these deductions, in the form of a resolution, he had submitted to the consideration of the Committee of the Whole. Now, except it could be proved that that gentleman had made all the deductions of and acted for every gentleman, there could be no ground for saying that every gentleman would be satisfied, without the evidence which might be collected from the records of the District Court of South Carolina. Was any gentleman in the House bound to be satisfied, with the gentleman from New York, that all the facts necessary to be known were furnished? Was every gentleman in the House bound to confine himself solely to the resolutions before the House? Certainly not. It could not be denied that the evidence now required was essential to a full investigation of the conduct of the judge, who was the principal agent of the Executive in this case. Mr. H. LEE hoped that the gentleman from South Carolina would withdraw his motion. He would mention some reasons which would induce him to vote differently from gentlemen with whom he usually had the honor to vote. Considering this a question of very great importance, not only to the American people, and to the reputation of the House, but also to the highly respectable character presiding over our Government, he trusted the House would, in its whole process, be led by principles so fair and candid, as not to leave the least room for a charge of derogation from its own dignity or of the great subject it was discussing. He would vote for the motion calling for the papers, but he would do it with an expectation that it would not postpone the discussion of the business so far as related to the conduct of the President of the United States. It appeared that the conduct of the President, as charged, was fully before the House; there could be no difficulty therefore to proceed on it; but, as far as respected the judge, Mr. L. trusted the record of the court would be sent, for he thought it but fair to gratify gentlemen who considered there was any material evidence wanting. Mr. VARNUM would vote for the resolution proposed; he thought it was doubtful whether the President had acted with propriety or not; but he believed if there had been any incidental impropriety of conduct, it was never done with an evil design, nor with a view to interfere with any other department of the Government; but certainly to deny this evidence, which several gentlemen had stated to be necessary to assist them in making up their minds, would stamp a censure on the conduct of those officers as great as that contained in the resolution. He thought the gentleman from New York had a right to bring the subject to the view of the House. If he saw any proceeding which to him appeared dangerous, it was his duty to commence an investigation. No man ought to flinch from what he thought right. The only way to give public satisfaction, in a matter that had so much engaged public attention, was to give all the evidence which could be procured, and let the matter be investigated to the bottom; and, most assuredly, the only way effectually to clear the characters implicated, if they were innocent, was to leave no doubt as to the desire of the House to scrutinize their conduct. But, certainly, the very great reluctance which gentlemen showed to procure all the evidence, and, after all, their denial of it, must leave a suspicion bordering much on guilt. Mr. BAYARD rose, in answer to Mr. GALLATIN and others, and observed, that, with respect to Nash calling himself an American citizen before that court, (an object which it was desired to prove by this call for evidence,) they were asked to admit the fact. Mr. B. asked, would these gentlemen admit that Nash was guilty of the dreadful murders committed on board the British frigate? Would they admit that he falsely made the claim? However, he had no disposition to rest on that point. Another fact, however, which it was required to admit was as to the jurisdiction of the court of the United States upon the case. Mr. B. denied this, and repeated the former arguments in proof of his opinion. He insisted that the whole arrest and proceeding was had at the instance of the British Consul and Minister, in proof of which he quoted their letters. The record, he said, could not possibly dispense any light to this fact; the record would only give the warrant and some of the depositions first taken before the judge; but as to the court being designated where the case was to be tried, he contended that it was not usual to insert it in the warrant--he never saw one so drawn. It was possible that Nash was committed with a view to be delivered up to the British, before the letter was received by the judge from the President; and it was very reasonable that the whole previous business was at the instigation of the British agent, but it was impossible to prove that jurisdiction had attached before the letter directing the delivery to be made was received. Mr. JONES said, that finding himself, from the vote he was about to give, implicated in the charge made by the gentleman from Delaware, (Mr. BAYARD,) that gentlemen who were yesterday ashamed to vote for the proposition to discharge the committee from further consideration of the subject, in general and express terms, because it would imply a distrust of the sufficiency of the ground on which to support the principles of the resolutions, were now disposed to effect the same object by a decision which would, in fact, go to evade the question during the present session, he felt himself impelled, by a respect for his own conduct, to explain the motives which would govern his vote on the present question. He considered the case which had been called into view by the proposition of the gentleman from New York, (Mr. LIVINGSTON,) as one that involved in it the dearest interests and deepest concerns of the people of the United States. The gentleman from Delaware (Mr. BAYARD) and the gentleman from Connecticut (Mr. DANA) had indulged themselves in the most violent invectives and unnecessary abuse against the unfortunate, the obscure, and insignificant character, now dead, who was the subject of this proposition. On this topic they had exercised all their powers of passionate declamation. If this was a grateful theme for the employment of their talents, he did not envy them the enjoyment of it. How that kind of argument would apply to the question, he left to the House to determine. For his part, Mr. J. said, he deemed it totally immaterial whether the man was, as they had declared, an Irishman or not; whether he was a Turk, a Hottentot, or a native-born American, if he claimed to be an American citizen, and produced a certificate in due form, under the signature of a proper officer, of his citizenship, and that claim was slighted by the judge, or declared immaterial, and the fact not inquired into of his being a citizen, then he conceived the safety of the citizens of America to be equally put in jeopardy, as if the man had been born and raised in Charleston, in the circle of the judge's own acquaintance. If, he asked, a dagger aimed at my breast by an assassin in the dark, should by mistake or impetuosity pierce the bosom of another, would not the discovery of such an attempt awaken alarm, and demand a precaution for my future safety? Certainly it would. So in this case, if this man claimed to be a citizen, and wore about him the legal voucher of that claim, and if he was told in the presence of American citizens, "it is of no importance whether you are, or are not a citizen, that is a point of no concern in the case," notwithstanding it may afterwards be found he was no citizen, yet would it equally involve the safety of every true citizen who might fall into similar circumstances. We may congratulate ourselves that it has not fallen on a fellow-citizen, but we ought still to improve the lesson this case has presented. Mr. J. hoped that it would be improved, and that, at least, legislative provisions would be made to prevent this decision from operating on a citizen, if such a case should occur in future. The question was then taken on the motion of Mr. HARPER, to postpone the consideration of the motion of Mr. NICHOLSON, for a call of the record of the District Court of South Carolina, for one week, and negatived--yeas 32, nays 63. The question then recurred upon adopting the resolutions. Mr. MARSHALL spoke at length against it. He contended there was no prospect of coming to a decision of the original question this session, if this were adopted; and asked if the character of the President of the United States ought to be held up in the suspicious view in which the resolution placed it, until the next session of Congress? He hoped not. It seemed to him that a postponement amounted to a declaration to the people of America that there was much cause for suspicion, and that additional evidences were wanted to substantiate it. Mr. NICHOLAS replied to Mr. M., and contended that the whole truth of the case was to come out of the additional testimony now asked for. An adjournment was then called for, and negatived--yeas 30. Mr. RANDOLPH spoke in favor of the resolution, and in answer to Mr. MARSHALL. The question was then taken that the House do agree to the motion first proposed, and passed in the negative--yeas 44, nays 57. And then the House adjourned. FRIDAY, February 28. Mr. HARPER moved a postponement of the order of the day on the business of Jonathan Robbins, until Monday. He did not conceive much progress would be made this day, and as there was much private business on hand it could not be gone through with. If the business be taken up on Monday it can be regularly gone through with without intermission. The motion was agreed to. MONDAY, March 3. _Lake Superior Lands._ Mr. COOPER observed that a navy was considered an object of great importance, as was also our extended commerce, and neither of these could be carried on to any profit without a very liberal use of copper. That article could not be purchased at present at less than half a dollar a pound, but by attention to an object which was within our own power it might be had at a very low price. From these considerations he laid on the table the following resolution: _Resolved_, That a committee be appointed to bring in a bill authorizing the President of the United States to appoint an agent to purchase of the Indians that tract of land on the south side of Lake Superior, which shall include the great copper bed. Mr. C. said, as this invaluable copper mine was well known by individuals, it no doubt would soon become an object of speculation, but wishing to make it of public utility, as it must become if purchased, he hoped the proposition would be adopted. _Jonathan Robbins._ The House then resolved itself into a Committee of the Whole on the Message of the President respecting Jonathan Robbins, when Mr. LIVINGSTON spoke about three hours in support of the resolutions he some time since submitted to the House on that subject. Mr. BAYARD was proceeding to follow Mr. L. when a member moved the committee to rise and ask leave to sit again. Mr. B. objected: he said he was prepared to proceed if the House would have patience at that late hour to hear him. Several members expressed a desire that he might proceed, which he was doing, when the SPEAKER hoped the gentleman would give way to a motion for the committee to rise; he had no doubt of his friend being prepared for the discussion, but from the length the answer must necessarily take, the House certainly would be fatigued much before he would conclude. The motion was made and carried. During Mr. LIVINGSTON'S observations he introduced a copy of the record of the Circuit Court in New Jersey, where three men were tried and acquitted on the charge of piracy, and one of them for murder, on board of the same frigate and at the same time. This record, on motion of Mr. RUTLEDGE, was ordered to be printed. Mr. NICHOLAS, not being able to account to his satisfaction for the obvious change of conduct in our Executive in this recited instance and the one now under the consideration of the House (though precisely the same in facts) any other way than by supposing that a correspondence on the subject had occurred between the Executive of the United States and the British Government; though he expressed himself to be extremely unwilling, yet he thought it his duty to move that the President be requested to furnish it to the House. An adjournment was immediately called and carried. WEDNESDAY, March 5. The House then resolved itself into a committee on the Message, when Mr. BAYARD proceeded, in answer to Mr. LIVINGSTON, in which he spoke about three hours.[50] The committee then rose, and obtained leave to sit again. THURSDAY, March 6. A message from the Senate informed the House that the Senate had passed the bill, entitled "An act declaring the assent of Congress to certain acts of the States of Maryland and Georgia," with an amendment; to which they desire the concurrence of this House. _Jonathan Robbins._ The House went into Committee of the Whole on the Message of the PRESIDENT, in the case of Jonathan Robbins, when Mr. NICHOLAS spoke about three hours[51] in favor of the resolutions introduced by Mr. LIVINGSTON, which were negatived--yeas 34, nays 58. Some discussion then took place on taking up the resolution presented by Mr. BAYARD, which was also with the Committee of the whole House. The committee at length rose without entering upon it, and reported their disagreement to the resolutions proposed by Mr. LIVINGSTON; and the question whether the committee should have leave to sit again was taken by yeas and nays, and carried--yeas 59, nays 38. The question was then before the House to agree to the report of the committee in their disagreement with the resolutions. Mr. GALLATIN rose, and entered generally into the argument, in a speech of about two hours, after which the House adjourned.[52] FRIDAY, March 7. _Jonathan Robbins._ The House took up the unfinished business of yesterday, and the question, Will the House agree with the Committee of the Whole in their disagreement to Mr. LIVINGSTON'S resolutions? being under consideration, Mr. MARSHALL said, that believing, as he did most seriously, that in a Government constituted like that of the United States, much of the public happiness depended, not only on its being rightly administered, but on the measures of Administration being rightly understood--on rescuing public opinion from those numerous prejudices with which so many causes might combine to surround it, he could not but have been highly gratified with the very eloquent, and what was still more valuable, the very able and very correct argument which had been delivered by the gentleman from Delaware (Mr. BAYARD) against the resolutions now under consideration. He had not expected that the effect of this argument would be universal; but he had cherished the hope, and in this he had not been disappointed, that it would be very extensive. He did not flatter himself with being able to shed much new light on the subject; but, as the argument in opposition to the resolutions had been assailed with considerable ability by gentlemen of great talents, he trusted the House would not think the time misapplied which would be devoted to the re-establishment of the principles contained in that argument, and to the refutation of those advanced in opposition to it. In endeavoring to do this, he should notice the observations in support of the resolutions, not in the precise order in which they were made; but as they applied to the different points he deemed it necessary to maintain, in order to demonstrate, that the conduct of the Executive of the United States could not justly be charged with the errors imputed to it by the resolutions. His first proposition, he said, was that the case of Thomas Nash, as stated to the President, was completely within the 27th article of the Treaty of Amity, Commerce, and Navigation, entered into between the United States of America and Great Britain. He read the article, and then observed: The _casus foederis_ of this article occurs, when a person, having committed murder or forgery within the jurisdiction of one of the contracting parties, and having sought an asylum in the country of the other, is charged with the crime, and his delivery demanded, on such proof of his guilt as, according to the laws of the place where he shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed. The case stated is, that Thomas Nash, having committed murder on board of a British frigate, navigating the high seas under a commission from His Britannic Majesty, had sought an asylum within the United States; on this case his delivery was demanded by the Minister of the King of Great Britain. It is manifest that the case stated, if supported by proof, is within the letter of the article, provided a murder committed in a British frigate, on the high seas, be committed within the jurisdiction of that nation. That such a murder is within their jurisdiction, has been fully shown by the gentleman from Delaware. The principle is, that the jurisdiction of a nation extends to the whole of its territory, and to its own citizens in every part of the world. The laws of a nation are rightfully obligatory on its own citizens in every situation where those laws are really extended to them. This principle is founded on the nature of civil union. It is supported every where by public opinion, and is recognized by writers on the laws of nations. _Rutherforth_, in his second volume, page 180, says: "The jurisdiction which a civil society has over the persons of its members, affects them immediately, whether they are within its territories or not." This general principle is especially true, and is particularly recognized, with respect to the fleets of a nation on the high seas. To punish offences committed in its fleets, is the practice of every nation in the universe; and consequently the opinion of the world is, that a fleet at sea is within the jurisdiction of the nation to which it belongs. _Rutherforth_, vol. ii. p. 491, says: "there can be no doubt about the jurisdiction of a nation over the persons which compose its fleets, when they are out at sea, whether they are sailing upon it or are stationed in any particular part of it." The gentleman from Pennsylvania, (Mr. GALLATIN,) though he has not directly controverted this doctrine, has sought to weaken it by observing that the jurisdiction of a nation at sea could not be complete even in its own vessels; and in support of this position he urged the admitted practice of submitting to search for contraband--a practice not tolerated on land, within the territory of a neutral power. The rule is as stated; but is founded on a principle which does not affect the jurisdiction of a nation over its citizens or subjects in its ships. The principle is, that in the sea itself no nation has any jurisdiction. All may equally exercise their rights, and consequently the right of a belligerent power to prevent aid being given to his enemy, is not restrained by any superior right of a neutral in the place. But, if this argument possessed any force, it would not apply to national ships-of-war, since the usage of nations does not permit them to be searched. According to the practice of the world, then, and the opinions of writers on the law of nations, the murder committed on board the British frigate navigating the high seas, was a murder committed within the jurisdiction of the British nation. Although such a murder is plainly within the letter of the article, it has been contended not to be within its just construction; because at sea all nations have a common jurisdiction, and the article correctly construed, will not embrace a case of concurrent jurisdiction. It is deemed unnecessary to controvert this construction, because the proposition, that the United States had no jurisdiction over the murder committed by Thomas Nash, is believed to be completely demonstrable. It is not true that all nations have jurisdiction over all offences committed at sea. On the contrary, no nation has any jurisdiction at sea, but over its own citizens or vessels, or offences against itself. This principle is laid down in 2 _Ruth._ 488, 491. The American Government has, on a very solemn occasion, avowed the same principle. The first Minister of the French Republic asserted and exercised powers of so extraordinary a nature, as unavoidably to produce a controversy with the United States. The situation in which the Government then found itself was such as necessarily to occasion a very serious and mature consideration of the opinions it should adopt. Of consequence, the opinions then declared deserve great respect. In the case alluded to, Mr. Genet had asserted the right of fitting out privateers in the American ports, and of manning them with American citizens, in order to cruise against nations with whom America was at peace. In reasoning against this extravagant claim, the then Secretary of State, in his letter of the 17th of June, 1793, says: "For our citizens then to commit murders and depredations on the members of nations at peace with us, or to combine to do it, appeared to the Executive, and to those whom they consulted, as much against the laws of the land as to murder or rob, or combine to murder or rob its own citizens; and as much to require punishment, if done within their limits, where they have a territorial jurisdiction, or on the high seas, where they have a personal jurisdiction, that is to say, one which reaches their own citizens only; this being an appropriate part of each nation, on an element where all have a common jurisdiction." The well considered opinion, then, of the American Government on this subject is, that the jurisdiction of a nation at sea is "personal," reaching its "own citizens only;" and that this is the "appropriate part of each nation" on that element. This is precisely the opinion maintained by the opposers of the resolutions. If the jurisdiction of America at sea be personal, reaching its own citizens only; if this be its appropriate part, then the jurisdiction of the nation cannot extend to a murder committed by a British sailor, on board a British frigate navigating the high seas under a commission from His Britannic Majesty. As a further illustration of the principle contended for, suppose a contract made at sea, and a suit instituted for the recovery of money which might be due thereon. By the laws of what nation would the contract be governed? The principle is general that a personal contract follows the person, but is governed by the law of the place where it is formed. By what law then would such a contract be governed? If all nations had jurisdiction over the place, then the laws of all nations would equally influence the contract; but certainly no man will hesitate to admit that such a contract ought to be decided according to the laws of that nation to which the vessel or contracting parties might belong. Suppose a duel, attended with death, in the fleet of a foreign nation, or in any vessel which returned safe to port, could it be pretended that any government on earth, other than that to which the fleet or vessel belonged, had jurisdiction in the case; or that the offender could be tried by the laws or tribunals of any other nation whatever? Suppose a private theft by one mariner, from another, and the vessel to perform its voyage and return in safety, would it be contended that all nations have equal cognizance of the crime, and are equally authorized to punish it? If there be this common jurisdiction at sea, why not punish desertion from one belligerent power to another, or correspondence with the enemy, or any other crime which may be perpetrated? A common jurisdiction over all offences at sea, in whatever vessel committed, would involve the power of punishing the offences which have been stated. Yet all gentlemen will disclaim this power. It follows, then, that no such common jurisdiction exists. In truth the right of every nation to punish is limited, in its nature, to offences against the nation inflicting the punishment. This principle is believed to be universally true. It comprehends every possible violation of its laws on its own territory, and it extends to violations committed elsewhere by persons it has a right to bind. It extends also to general piracy. A pirate, under the law of nations, is an enemy of the human race. Being the enemy of all, he is liable to be punished by all. Any act which denotes this universal hostility, is an act of piracy. Not only an actual robbery, therefore, but cruising on the high seas without commission, and with intent to rob, is piracy. This is an offence against all and every nation, and is therefore alike punishable by all. But an offence which in its nature affects only a particular nation, is only punishable by that nation. It is by confounding general piracy with piracy by statute, that indistinct ideas have been produced, respecting the power to punish offences committed on the high seas. A statute may make any offence piracy, committed within the jurisdiction of the nation passing the statute, and such offence will be punishable by that nation. But piracy under the law of nations, which alone is punishable by all nations, can only consist in an act which is an offence against all. No particular nation can increase or diminish the list of offences thus punishable. It has been observed by his colleague, (Mr. NICHOLAS,) for the purpose of showing that the distinction taken on this subject by the gentleman from Delaware (Mr. BAYARD) was inaccurate, that any vessel robbed on the high seas could be the property only of a single nation, and being only an offence against that nation, could be, on the principle taken by the opposers of the resolutions, no offence against the law of nations; but in this his colleague had not accurately considered the principle. As a man who turns out to rob on the highway, and forces from a stranger his purse with a pistol at his bosom, is not the particular enemy of that stranger, but alike the enemy of every man who carries a purse, so those who without a commission rob on the high seas, manifest a temper hostile to all nations, and therefore become the enemies of all. The same inducements which occasion the robbery of one vessel, exist to occasion the robbery of others, and therefore the single offence is an offence against the whole community of nations, manifests a temper hostile to all, is the commencement of an attack on all, and is consequently, of right, punishable by all. His colleague had also contended that all the offences at sea, punishable by the British statutes from which the act of Congress was in a great degree copied, were piracies at common law, or by the law of nations, and as murder is among these, consequently murder was an act of piracy by the law of nations, and therefore punishable by every nation. In support of this position he had cited 1 _Hawk. P. C._ 267. 271-3, _Inst._ 112, and 1 _Woodeson_, 140. The amount of these cases is, that no new offence is made piracy by the statutes; but that a different tribunal is created for their trial, which is guided by a different rule from that which governed previous to those statutes. Therefore, on an indictment for piracy, it is still necessary to prove an offence which was piracy before the statutes. He drew from these authorities a very different conclusion from that which had been drawn by his colleague. To show the correctness of his conclusion, it was necessary to observe, that the statute did not indeed change the nature of piracy, since it only transferred the trial of the crime to a different tribunal, where different rules of decision prevailed; but having done this, other crimes committed on the high seas, which were not piracy, were made punishable by the same tribunal; but certainly this municipal regulation could not be considered as proving that those offences were, before, piracy by the law of nations. [Mr. NICHOLAS insisted that the law was not correctly stated, whereupon Mr. MARSHALL called for 3 _Inst._ and read the statute:] "All treasons, felonies, robberies, murders, and confederacies, committed in or upon the seas, &c., shall be inquired, tried, heard, determined and judged in such shires, &c., in like form and condition as if any such offence had been committed on the land," &c. "And such as shall be convicted, &c., shall have and suffer such pains of death, &c., as if they had been attainted of any treason, felony, robbery, or other the said offences done upon the land." This statute, it is certain, does not change the nature of piracy; but all treasons, felonies, robberies, murders, and confederacies, committed in or upon the sea, are not declared to have been, nor are they piracies. If a man be indicted as a pirate, the offence must be shown to have been piracy before the statute; but if he be indicted for treason, felony, robbery, murder, or confederacy, committed at sea, whether such offence was or was not a piracy, he shall be punished in like manner as if he had committed the same offence on land. The passage cited from 1 _Woodeson_, 140, is a full authority to this point. Having stated that offences committed at sea were formerly triable before the Lord High Admiral, according to the course of the Roman civil law, _Woodeson_ says: "But, by the statutes 27 H. 8. c. 4, and 28 H. 8. c. 15, all treasons, felonies, piracies, and other crimes committed on the sea, or where the admiral has jurisdiction, shall be tried in the realm as if done on land. But the statutes referred to affect only the manner of the trial as far as respects piracy. The nature of the offence is not changed. Whether a charge amount to piracy or not, must still depend on the law of nations, except where, in the case of British subjects, express acts of Parliament have declared that the crimes therein specified shall be adjudged piracy, or shall be liable to the same mode of trial and degree of punishment." This passage proves not only that all offences at sea are not piracies by the law of nations, but also that all indictments for piracy must depend on the law of nations, "except where, in the case of British subjects, express acts of Parliament" have changed the law. Why do not these "express acts of Parliament" change the law as to others than "British subjects?" The words are general, "all treasons, felonies, &c." Why are they confined in construction to British subjects? The answer is a plain one: The jurisdiction of the nation is confined to its territory and to its own subjects. The gentleman from Pennsylvania (Mr. GALLATIN) abandons, and very properly abandons, this untenable ground. He admits that no nation has a right to punish offences against another nation, and that the United States can only punish offences against their own laws and the law of nations. He admits, too, that if there had only been a mutiny (and consequently if there had only been a murder) on board the Hermione, that the American courts could have taken no cognizance of the crime. Yet mutiny is punishable as piracy by the law of both nations. That gentleman contends that the act committed by Nash was piracy, according to the law of nations. He supports his position by insisting that the offence may be constituted by the commission of a single act: that unauthorized robbery on the high seas is this act, and that the crew having seized the vessel, and being out of the protection of any nation, were pirates. It is true that the offence may be completed by a single act; but it depends on the nature of that act. If it be such as manifests generally hostility against the world--an intention to rob generally, then it is piracy; but if it be merely a mutiny and murder in a vessel, for the purpose of delivering it up to the enemy, it seems to be an offence against a single nation and not to be piracy. The sole object of the crew might be to go over to the enemy, or to free themselves from the tyranny experienced on board a ship-of-war, and not to rob generally. But, should it even be true that running away with a vessel to deliver her up to an enemy was an act of general piracy, punishable by all nations, yet the mutiny and murder was a distinct offence. Had the attempt to seize the vessel failed, after the commission of the murder, then, according to the argument of the gentleman from Pennsylvania, the American courts could have taken no cognizance of the crime. Whatever then might have been the law respecting the piracy, of the murder there was no jurisdiction. For the murder, not the piracy, Nash was delivered up. Murder, and not piracy, is comprehended in the 27th article of the treaty between the two nations. Had he been tried then and acquitted on an indictment for the piracy, he must still have been delivered up for the murder, of which the court could have no jurisdiction. It is certain that an acquittal of the piracy would not have discharged the murder; and, therefore, in the so much relied on trials at Trenton, a separate indictment for murder was filed after an indictment for piracy. Since, then, if acquitted for piracy, he must have been delivered to the British Government on the charge of murder, the President of the United States might, very properly, without prosecuting for the piracy, direct him to be delivered up on the murder. All the gentlemen who have spoken in support of the resolutions, have contended that the case of Thomas Nash is within the purview of the act of Congress, which relates to this subject, and is by that act made punishable in the American courts. That is, that the act of Congress designed to punish crimes committed on board a British frigate. Nothing can be more completely demonstrable than the untruth of this proposition. It has already been shown that the legislative jurisdiction of a nation extends only to its own territory, and to its own citizens, wherever they may be. Any general expression in a legislative act must, necessarily, be restrained to objects within the jurisdiction of the Legislature passing the act. Of consequence an act of Congress can only be construed to apply to the territory of the United States, comprehending every person within it, and to the citizens of the United States. But, independent of this undeniable truth, the act itself affords complete testimony of its intention and extent. (_See Laws of the United States_, vol. i. p. 10.) The title is: "An act for the punishment of certain crimes against the United States." Not against Britain, France, or the world, but singly "against the United States." The first section relates to treason, and its objects are, "any person or persons owing allegiance to the United States." This description comprehends only the citizens of the United States, and such others as may be on its territory or in its service. The second section relates to misprision of treason; and declares, without limitation, that any person or persons, having knowledge of any treason, and not communicating the same, shall be guilty of that crime. Here then is an instance of that limited description of persons in one section, and of that general description in another, which has been relied on to support the construction contended for by the friends of the resolutions. But will it be pretended that a person can commit misprision of treason who cannot commit treason itself? That he would be punishable for concealing a treason who could not be punished for plotting it? Or, can it be supposed that the act designed to punish an Englishman or a Frenchman, who, residing in his own country, should have knowledge of treasons against the United States, and should not cross the Atlantic to reveal them? The same observations apply to the sixth section, which makes any "person or persons" guilty of misprision of felony, who, having knowledge of murder or other offences enumerated in that section, should conceal them. It is impossible to apply this to a foreigner, in a foreign land, or to any person not owing allegiance to the United States. The eighth section, which is supposed to comprehend the case, after declaring that if any "person or persons" shall commit murder on the high seas, he shall be punishable with death, proceeds to say, that if any captain or mariner shall piratically run away with a ship or vessel, or yield her up voluntarily to a pirate, or if any seaman shall lay violent hands on his commander, to prevent his fighting, or shall make a revolt in the ship, every such offender shall be adjudged a pirate and a felon. The persons who are the objects of this section of the act are all described in general terms, which might embrace the subjects of all nations. But is it to be supposed that, if in an engagement between an English and a French ship-of-war, the crew of the one or the other should lay violent hands on the captain and force him to strike, that this would be an offence against the act of Congress, punishable in the courts of the United States? On this extended construction of the general terms of the section, not only the crew of one of the foreign vessels forcing their captain to surrender to another, would incur the penalties of the act, but, if in the late action between the gallant Truxton and the French frigate, the crew of that frigate had compelled the captain to surrender, while he was unwilling to do so, they would have been indictable as felons in the courts of the United States. But surely the act of Congress admits of no such extravagant construction. His colleague, Mr. M. said, had cited and particularly relied on the ninth section of the act; that section declares, that if a citizen shall commit any of the enumerated piracies, or any acts of hostility, on the high seas, against the United States, under color of a commission from any foreign Prince or State, he shall be adjudged a pirate, felon, and robber, and shall suffer death. This section is only a positive extension of the act to a case which might otherwise have escaped punishment. It takes away the protection of a foreign commission from an American citizen, who, on the high seas, robs his countrymen. This is no exception from any preceding part of the law, because there is no part which relates to the conduct of vessels commissioned by a foreign power; it only proves that, in the opinion of the Legislature, the penalties of the act could not, without this express provision, have been incurred by a citizen holding a foreign commission. It is most certain, then, that the act of Congress does not comprehend the case of a murder committed on board a foreign ship-of-war. The gentleman from New York has cited 2 _Woodeson_, 428, to show that the courts of England extend their jurisdiction to piracies committed by the subjects of foreign nations. This has not been doubted. The case from Woodeson is a case of robberies committed on the high seas by a vessel without authority. There are ordinary acts of piracy which, as has been already stated, being offences against all nations, are punishable by all. The case from 2 _Woodeson_, and the note cited from the same book by the gentleman from Delaware, are strong authorities against the doctrines contended for by the friends of the resolutions. It has also been contended that the question of jurisdiction was decided at Trenton, by receiving indictments against persons there arraigned for the same offence, and by retaining them for trial after the return of the habeas corpus. Every person in the slightest degree acquainted with judicial proceedings, knows that an indictment is no evidence of jurisdiction; and that, in criminal cases, the question of jurisdiction will seldom be made but by arrest of judgment after conviction. The proceedings, after the return of the habeas corpus, only prove that the case was not such a case as to induce the Judge immediately to decide against his jurisdiction. The question was not free from doubt, and, therefore, might very properly be postponed until its decision should become necessary. It has been argued by the gentleman from New York, that the form of the indictment is, itself, evidence of a power in the court to try the case. Every word of that indictment, said the gentleman, gives the lie to a denial of the jurisdiction of the court. It would be assuming a very extraordinary principle, indeed, to say that words inserted in an indictment for the express purpose of assuming the jurisdiction of a court, should be admitted to prove that jurisdiction. The question certainly depended on the nature of the fact, and not on the description of the fact. But as an indictment must necessarily contain formal words in order to be supported, and as forms often denote what a case must substantially be to authorize a court to take cognizance of it, some words in the indictments at Trenton ought to be noticed. The indictments charge the persons to have been within the peace, and murder to have been committed against the peace, of the United States. These are necessary averments, and, to give the court jurisdiction, the fact ought to have accorded with them. But who will say that the crew of a British frigate on the high seas, are within the peace of the United States? or a murder committed on board such a frigate, against the peace of any other than the British Government? It is, then, demonstrated that the murder with which Thomas Nash was charged, was not committed within the jurisdiction of the United States, and, consequently, that the case stated was completely within the letter and the spirit of the twenty-seventh article of the treaty between the two nations. If the necessary evidence was produced, he ought to have been delivered up to justice. It was an act to which the American nation was bound by a most solemn compact. To have tried him for the murder would have been mere mockery. To have condemned and executed him, the court having no jurisdiction, would have been murder. To have acquitted and discharged him would have been a breach of faith, and a violation of national duty. But it has been contended that, although Thomas Nash ought to have been delivered up to the British Minister, on the requisition made by him in the name of his Government, yet, the interference of the President was improper. This, Mr. M. said, led to his second proposition, which was: That the case was a case for Executive and not Judicial decision. He admitted implicitly the division of powers, stated by the gentleman from New York, and that it was the duty of each department to resist the encroachments of the others. This being established, the inquiry was, to what department was the power in question allotted? The gentleman from New York had relied on the second section of the third article of the constitution, which enumerates the cases to which the Judicial power of the United States extends, as expressly including that now under consideration. Before he examined that section, it would not be improper to notice a very material misstatement of it made in the resolutions, offered by the gentleman from New York. By the constitution, the Judicial power of the United States is extended to all cases in law and equity, arising under the constitution, laws, and treaties of the United States; but the resolutions declare that Judicial power to extend to all questions arising under the constitution, treaties, and laws of the United States. The difference between the constitution and resolutions was material and apparent. A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the Judicial power extended to every question under the constitution, it would involve almost every subject proper for Legislative discussion and decision; if, to every question under the laws and treaties of the United States, it would involve almost every subject on which the Executive could act. The division of power which the gentleman had stated, could exist no longer, and the other departments would be swallowed up by the Judiciary. But it was apparent that the resolutions had essentially misrepresented the constitution. He did not charge the gentleman from New York with intentional misrepresentation; he would not attribute to him such an artifice in any case, much less in a case where detection was so easy and so certain. Yet this substantial departure from the constitution, in resolutions affecting substantially to unite it, was not less worthy of remark for being unintentional. It manifested the course of reasoning by which the gentleman had himself been misled, and his judgment betrayed into the opinions those resolutions expressed. By extending the Judicial power to all cases in law and equity, the constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit. A case in law or equity proper for judicial decision may arise under a treaty, where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court. As under the fourth or sixth article of the treaty of peace with Great Britain, or under those articles of our late treaties with France, Prussia, and other nations, which secure to the subjects of those nations their property within the United States; or, as would be an article, which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the Judicial power cannot extend to political compacts; as the establishment of the boundary line between the American and British dominions; the case of the late guarantee in our treaty with France, or the case of the delivery of a murderer under the twenty-seventh article of our present treaty with Britain. The gentleman from New York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign Government? Permit me, said Mr. M., but not triumphantly, to retort the question. By what authority can any court render such a judgment? What power does a court possess to seize any individual and determine that he shall be adjudged by a foreign tribunal? Surely our courts possess no such power, yet they must possess it, if this article of the treaty is to be executed by the courts. Gentlemen have cited and relied on that clause in the constitution, which enables Congress to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; together with an act of Congress declaring the punishment of those offences; as transferring the whole subject to the courts. But that clause can never be construed to make to the Government a grant of power, which the people making it do not themselves possess. It has already been shown that the people of the United States have no jurisdiction over offences committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government. The law, therefore, cannot act upon the case. But this clause of the constitution cannot be considered, and need not be considered, as affecting acts which are piracy under the law of nations. As the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction, and piracy under the law of nations is of admiralty and maritime jurisdiction, punishable by every nation, the judicial power of the United States of course extends to it. On this principle the Courts of Admiralty under the Confederation took cognizance of piracy, although there was no express power in Congress to define and punish the offence. But the extension of the judicial power of the United States to all cases of admiralty and maritime jurisdiction must necessarily be understood with some limitation. All cases of admiralty and maritime jurisdiction which, from their nature, are triable in the United States, are submitted to the jurisdiction of the courts of the United States. There are cases of piracy by the law of nations, and cases within the legislative jurisdiction of the nation; the people of America possessed no other power over the subject, and could consequently transfer no other to their courts; and it has already been proved that a murder committed on board a foreign ship-of-war is not comprehended within this description. The Consular Convention with France, has also been relied on, as proving the act of delivering up an individual to a foreign power to be in its nature Judicial and not Executive. The ninth article of that Convention authorizes the Consuls and Vice Consuls of either nation to cause to be arrested all deserters from their vessel, "for which purpose the said Consuls and Vice Consuls shall address themselves to the courts, judges, and officers competent." This article of the Convention does not, like the 27th article of the treaty with Britain, stipulate a national act, to be performed on the demand of a nation; it only authorizes a foreign Minister to cause an act to be done, and prescribes the course he is to pursue. The contract itself is, that the act shall be performed by the agency of the foreign Consul, through the medium of the courts; but this affords no evidence that a contract of a very different nature is to be performed in the same manner. It is said that the then President of the United States declared the incompetency of the courts, judges, and officers, to execute this contract without an act of the Legislature. But the then President made no such declaration. He has said that some legislative provision is requisite to carry the stipulations of the Convention into full effect. This, however, is by no means declaring the incompetency of a department to perform an act stipulated by treaty, until the legislative authority shall direct its performance. It has been contended that the conduct of the Executive on former occasions, similar to this in principle, has been such as to evince an opinion, even in that department, that the case in question is proper for the decision of the courts. The fact adduced to support this argument is the determination of the late President on the case of prizes made within the jurisdiction of the United States, or by privateers fitted out in their ports. The nation was bound to deliver up those prizes in like manner as the nation is now bound to deliver up an individual demanded under the 27th article of the treaty with Britain. The duty was the same, and devolved on the same department. In quoting the decision of the Executive on that case, the gentleman from New York has taken occasion to bestow a high encomium on the late President; and to consider his conduct as furnishing an example worthy the imitation of his successor. It must be the cause of much delight to the real friends of that great man; to those who supported his Administration while in office from a conviction of its wisdom and its virtue, to hear the unqualified praise which is now bestowed on it by those who had been supposed to possess different opinions. If the measure now under consideration shall be found, on examination, to be the same in principle with that which has been cited, by its opponents, as a fit precedent for it, then may the friends of the gentleman now in office indulge the hope, that when he, like his predecessor, shall be no more, his conduct too may be quoted as an example for the government of his successors. The evidence relied on to prove the opinion of the then Executive on the case, consists of two letters from the Secretary of State, the one of the 29th of June, 1793, to Mr. Genet, and the other of the 16th of August, 1793, to Mr. Morris. In the letter to Mr. Genet, the Secretary says, that the claimant having filed his libel against the ship William, in the Court of Admiralty, there was no power which could take the vessel out of court until it had decided against its own jurisdiction; that having so decided, the complaint is lodged with the Executive, and he asks for evidence, to enable that department to consider and decide finally on the subject. It will be difficult to find in this letter an Executive opinion, that the case was not a case for Executive decision. The contrary is clearly avowed. It is true, that when an individual, claiming the property as his, had asserted that claim in court, the Executive acknowledges in itself a want of power to dismiss or decide upon the claim thus pending in court. But this argues no opinion of a want of power in itself to decide upon the case, if, instead of being carried before a court as an individual claim, it is brought before the Executive as a national demand. A private suit instituted by an individual, asserting his claim to property, can only be controlled by that individual. The Executive can give no direction concerning it. But a public prosecution carried on in the name of the United States can, without impropriety, be dismissed at the will of the Government. The opinion, therefore, given in this letter, is unquestionably correct; but it is certainly misunderstood, when it is considered as being an opinion that the question was not in its nature a question for Executive decision. In the letter to Mr. Morris, the Secretary asserts the principle, that vessels taken within our jurisdiction ought to be restored, but says, it is yet unsettled whether the act of restoration is to be performed by the Executive or Judicial Department. The principle, then, according to this letter, is not submitted to the court--whether a vessel captured within a given distance of the American coast, was or was not captured within the jurisdiction of the United States, was a question not to be determined by the courts, but by the Executive. The doubt expressed is not what tribunal shall settle the principle, but what tribunal shall settle the fact. In this respect, a doubt might exist in the case of prizes, which could not exist in the case of a man. Individuals on each side claimed the property, and therefore their rights could be brought into court, and there contested as a case in law or equity. The demand of a man made by a nation stands on different principles. Having noticed the particular letters cited by the gentleman from New York, permit me now, said Mr. M., to ask the attention of the House to the whole course of Executive conduct on this interesting subject. It is first mentioned in a letter from the Secretary of State to Mr. Genet, of the 25th of June, 1793. In that letter, the Secretary states a consultation between himself and the Secretaries of the Treasury and War, (the President being absent,) in which (so well were they assured of the President's way of thinking in those cases) it was determined that the vessels should be detained in the custody of the Consuls, in the ports, until the Government of the United States shall be able to inquire into and decide on the fact. In his letter of the 12th of July, 1793, the Secretary writes, the President has determined to refer the questions concerning prizes "to persons learned in the laws," and he requests that certain vessels enumerated in the letter should not depart "until his ultimate determination shall be made known." In his letter of the 7th of August, 1793, the Secretary informs Mr. Genet that the President considers the United States as bound "to effectuate the restoration of, or to make compensation for, prizes which shall have been made of any of the parties at war with France, subsequent to the 5th day of June last, by privateers fitted out of our ports." That it is consequently expected that Mr. Genet will cause restitution of such prizes to be made, and that the United States "will cause restitution" to be made "of all such prizes as shall be hereafter brought within their ports by any of the said privateers." In his letter of the 10th of November, 1793, the Secretary informs Mr. Genet, that for the purpose of obtaining testimony to ascertain the fact of capture within the jurisdiction of the United States, the Governors of the several States were requested, on receiving any such claim, immediately to notify thereof the Attorneys of their several districts, whose duty it would be to give notice "to the principal agent of both parties, and also to the Consuls of the nations interested; and to recommend to them to appoint by mutual consent arbiters to decide whether the capture was made within the jurisdiction of the United States, as stated in my letter of the 8th inst., according to whose award the Governor may proceed to deliver the vessel to the one or the other party." "If either party refuse to name arbiters, then the Attorney is to take depositions on notice, which he is to transmit for the information and decision of the President." "This prompt procedure is the more to be insisted on, as it will enable the President, by an immediate delivery of the vessel and cargo to the party having title, to prevent the injuries consequent on long delay." In his letter of the 22d of November, 1793, the Secretary repeats, in substance, his letter of the 12th of July and 7th of August, and says that the determination to deliver up certain vessels, involved the brig Jane, of Dublin, the brig Lovely Lass, and the brig Prince William Henry. He concludes with saying: "I have it in charge to inquire of you, sir, whether these three brigs have been given up according to the determination of the President, and if they have not, to repeat the requisition that they may be given up to their former owners." Ultimately it was settled that the fact should be investigated in the courts, but the decision was regulated by the principles established by the Executive Department. The decision, then, on the case of vessels captured within the American jurisdiction, by privateers fitted out of the American ports, which the gentleman from New York has cited with such merited approbation; which he has declared to stand on the same principles with those which ought to have governed the case of Thomas Nash; and which deserves the more respect, because the Government of the United States was then so circumstanced as to assure us that no opinion was lightly taken up, and no resolution formed but on mature consideration; this decision, quoted as a precedent and pronounced to be right, is found, on fair and full examination, to be precisely and unequivocally the same with that which was made in the case under consideration. It is a full authority to show that, in the opinion always held by the American Government, a case like that of Thomas Nash is a case for Executive and not Judicial decision. The clause in the constitution which declares that "the trial of all crimes, except in cases of impeachment, shall be by jury," has also been relied on as operating on the case, and transferring the decision on a demand for the delivery of an individual from the Executive to the Judicial Department. But certainly this clause in the Constitution of the United States cannot be thought obligatory on, and for the benefit of, the whole world. It is not designed to secure the rights of the people of Europe and Asia, or to direct and control proceedings against criminals throughout the universe. It can then be designed only to guide the proceedings of our own courts, and to prescribe the mode of punishing offences committed against the Government of the United States, and to which the jurisdiction of the nation may rightfully extend. It has already been shown that the courts of the United States were incapable of trying the crime for which Thomas Nash was delivered up to justice. The question to be determined was, not how his crime should be tried and punished, but whether he should be delivered up to a foreign tribunal, which was alone capable of trying and punishing him. A provision for the trial of crimes in the courts of the United States is clearly not a provision for the performance of a national compact for the surrender to a foreign Government of an offender against that Government. The clause of the constitution declaring that the trial of all crimes shall be by jury, has never even been construed to extend to the trial of crimes committed in the land and naval forces of the United States. Had such a construction prevailed, it would most probably have prostrated the constitution itself, with the liberties and the independence of the nation, before the first disciplined invader who should approach our shores. Necessity would have imperiously demanded the review and amendment of so unwise a provision. If, then, this clause does not extend to offences committed in the fleets and armies of the United States, how can it be construed to extend to offences committed in the fleets and armies of Britain or of France, or of the Ottoman or Russian Empires? The same argument applies to the observations on the seventh article of the amendments to the constitution. That article relates only to trials in the courts of the United States, and not to the performance of a contract for the delivery of a murderer not triable in those courts. In this part of the argument, the gentleman from New York has presented a dilemma, of a very wonderful structure indeed. He says that the offence of Thomas Nash was either a crime or not a crime. If it was a crime, the constitutional mode of punishment ought to have been observed; if it was not a crime, he ought not to have been delivered up to a foreign Government, where his punishment was inevitable. It had escaped the observation of that gentleman, that if the murder committed by Thomas Nash was a crime, yet it was not a crime provided for by the constitution, or triable in the courts of the United States; and that if it was not a crime, yet it is the precise case in which his surrender was stipulated by treaty. Of this extraordinary dilemma, then, the gentleman from New York is, himself, perfectly at liberty to retain either horn. He has chosen to consider it as a crime, and says it has been made a crime by treaty, and is punished by sending the offender out of the country. The gentleman is incorrect in every part of his statement. Murder on board a British frigate is not a crime created by treaty. It would have been a crime of precisely the same magnitude had the treaty never been formed. It is not punished by sending the offender out of the United States. The experience of this unfortunate criminal, who was hung and gibbeted, evinced to him that the punishment of his crime was of a much more serious nature than mere banishment from the United States. The gentleman from Pennsylvania and the gentleman from Virginia have both contended that this was a case proper for the decision of the courts, because points of law occurred, and points of law must have been decided in its determination. The points of law which must have been decided, are stated by the gentleman from Pennsylvania to be, first, a question whether the offence was committed within the British jurisdiction; and, secondly, whether the crime charged was comprehended within the treaty. It is true, sir, these points of law must have occurred, and must have been decided; but it by no means follows that they could only have been decided in court. A variety of legal questions must present themselves in the performance of every part of Executive duty, but these questions are not therefore to be decided in court. Whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. The gentleman from Pennsylvania seems to have permitted himself to have been misled by the misrepresentation of the constitution, made in the resolutions of the gentleman from New York; and, in consequence of being so misled, his observations have the appearance of endeavoring to fit the constitution to his arguments, instead of adapting his arguments to the constitution. When the gentleman has proved that these are questions of law, and that they must have been decided by the President, he has not advanced a single step towards proving that they were improper for Executive decision. The question whether vessels captured within three miles of the American coast, or by privateers fitted out in the American ports, were legally captured or not, and whether the American Government was bound to restore them, if in its power, were questions of law; but they were questions of political law, proper to be decided, and they were decided by the Executive, and not by the courts. The _casus foederis_ of the guarantee was a question of law, but no man could have hazarded the opinion that such a question must be carried into court, and can only be there decided. So the _casus foederis_, under the twenty-seventh article of the treaty with Great Britain, is a question of law, but of political law. The question to be decided is, whether the particular case proposed be one in which the nation has bound itself to act, and this is a question depending on principles never submitted to courts. If a murder should be committed within the United States, and the murderer should seek an asylum in Britain, the question whether the _casus foederis_ of the twenty-seventh article had occurred, so that his delivery ought to be demanded, would be a question of law, but no man would say it was a question which ought to be decided in the courts. When, therefore, the gentleman from Pennsylvania has established, that in delivering up Thomas Nash, points of law were decided by the President, he has established a position which in no degree whatever aids his argument. The case was in its nature a national demand made upon the nation. The parties were the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance. The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him. He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he, and he alone, possesses the means of executing it. The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive Department to execute the contract by any means it possesses. The gentleman from Pennsylvania contends that, although this should be properly an Executive duty, yet it cannot be performed until Congress shall direct the mode of performance. He says that, although the jurisdiction of the courts is extended by the constitution to all cases of admiralty and maritime jurisdiction, yet if the courts had been created without any express assignment of jurisdiction, they could not have taken cognizance of cases expressly allotted to them by the constitution. The Executive, he says, can, no more than courts, supply a legislative omission. It is not admitted that, in the case stated, courts could not have taken jurisdiction. The contrary is believed to have been the correct opinion. And although the Executive cannot supply a total Legislative omission, yet it is not admitted or believed that there is such a total omission in this case. The treaty, stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of Congress making the same declaration. If, then, there was an act of Congress in the words of the treaty, declaring that a person who had committed murder within the jurisdiction of Britain, and sought an asylum within the territory of the United States, should be delivered up by the United States, on the demand of His Britannic Majesty, and such evidence of his criminality, as would have justified his commitment for trial, had the offence been here committed; could the President, who is bound to execute the laws, have justified the refusal to deliver up the criminal, by saying, that the Legislature had totally omitted to provide for the case. The Executive is not only the constitutional department, but seems to be the proper department to which the power in question may most wisely and most safely be confided. The department which is intrusted with the whole foreign intercourse of the nation, with the negotiation of all its treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the nation for the violation of its engagements with foreign nations, and for the consequences resulting from such violation, seems the proper department to be intrusted with the execution of a national contract like that under consideration. If, at any time, policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand precisely the state of the political intercourse and connection between the United States and foreign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the Union? This department, too, independent of judicial aid, which may, perhaps, in some instances, be called in, is furnished with a great law officer, whose duty it is to understand and to advise when the _casus foederis_ occurs. And if the President should cause to be arrested under the treaty an individual who was so circumstanced as not to be properly the object of such an arrest, he may perhaps bring the question of the legality of his arrest before a judge, by a writ of habeas corpus. It is then demonstrated, that, according to the principles of the American Government, the question whether the nation has or has not bound itself to deliver up any individual, charged with having committed murder or forgery within the jurisdiction of Britain, is a question the power to decide which rests alone with the Executive Department. It remains to inquire whether, in exercising this power, and in performing the duty it enjoins, the President has committed an unauthorized and dangerous interference with judicial decisions. That Thomas Nash was committed originally at the instance of the British Consul at Charleston, not for trial in the American courts, but for the purpose of being delivered up to justice in conformity with the treaty between the two nations, has been already so ably argued by the gentleman from Delaware, that nothing further can be added to that point. He would therefore, Mr. MARSHALL said, consider the case as if Nash had been delivered up instead of having been committed for trial. Admitting even this to have been the fact, the conclusions which have been drawn from it were by no means warranted. Gentlemen had considered it as an offence against judicial authority, and a violation of judicial rights, to withdraw from their sentence a criminal against whom a prosecution had been commenced. They had treated the subject as if it was the privilege of courts to condemn to death the guilty wretch arraigned at their bar, and that to intercept the judgment was to violate the privilege. Nothing can be more incorrect than this view of the case. It is not the privilege, it is the sad duty of courts to administer criminal judgment. It is a duty to be performed at the demand of the nation, and with which the nation has a right to dispense. If judgment of death is to be pronounced, it must be at the prosecution of the nation, and the nation may at will stop that prosecution. In this respect the President expresses constitutionally the will of the nation; and may rightfully, as was done in the case at Trenton, enter a _nolle prosequi_, or direct that the criminal be prosecuted no farther. This is no interference with judicial decisions, nor any invasion of the province of a court. It is the exercise of an indubitable and a constitutional power. Had the President directed the Judge of Charleston to decide for or against his own jurisdiction, to condemn or acquit the prisoner, this would have been a dangerous interference with judicial decisions, and ought to have been resisted. But no such direction has been given, nor any such decision been required. If the President determined that Thomas Nash ought to have been delivered up to the British Government for a murder committed on board a British frigate, provided evidence of the fact was adduced, it was a question which duty obliged him to determine, and which he determined rightly. If, in consequence of this determination, he arrested the proceedings of a court on a national prosecution, he had a right to arrest and to stop them, and the exercise of this right was a necessary consequence of the determination of the principal question. In conforming to this decision, the court has left open the question of its jurisdiction. Should another prosecution of the same sort be commenced, which should not be suspended but continued by the Executive, the case of Thomas Nash would not bind as a precedent against the jurisdiction of the court. If it should even prove that, in the opinion of the Executive, a murder committed on board a foreign fleet was not within the jurisdiction of the court, it would prove nothing more; and though this opinion might rightfully induce the Executive to exercise his power over the prosecution, yet if the prosecution was continued, it would have no influence with the court in deciding on its jurisdiction. Taking the fact, then, even to be as the gentlemen in support of the resolutions would state it, the fact cannot avail them. It is to be remembered, too, that in the case stated to the President, the Judge himself appears to have considered it as proper for Executive decision, and to have wished that decision. The President and Judge seem to have entertained, on this subject, the same opinion, and in consequence of the opinion of the Judge, the application was made to the President. It has then been demonstrated-- 1st. That the case of Thomas Nash, as stated to the President, was completely within the twenty-seventh article of the treaty between the United States and Great Britain. 2d. That this question was proper for Executive, and not for Judicial decision; and, 3d. That in deciding it, the President is not chargeable with an interference with judicial decisions. After trespassing so long, Mr. MARSHALL said, on the patience of the House, in arguing what had appeared to him to be the material points growing out of the resolutions, he regretted the necessity of detaining them still longer for the purpose of noticing an observation which appeared not to be considered by the gentleman who made it as belonging to the argument. The subject introduced by this observation, however, was so calculated to interest the public feelings, that he must be excused for stating his opinion on it. The gentleman from Pennsylvania had said that an impressed American seaman, who should commit homicide for the purpose of liberating himself from the vessel in which he was confined, ought not to be given up as a murderer. In this, Mr. M. said, he concurred entirely with that gentleman. He believed the opinion to be unquestionably correct, as were the reasons that gentleman had given in support of it. He had never heard any American avow a contrary sentiment, nor did he believe a contrary sentiment could find a place in the bosom of an American. He could not pretend, and did not pretend to know the opinion of the Executive on this subject, because he had never heard the opinions of that department; but he felt the most perfect conviction, founded on the general conduct of the Government, that it could never surrender an impressed American to the nation which, in making the impressment, had committed a national injury. This belief was in no degree shaken by the conduct of the Executive in this particular case. In his own mind, it was a sufficient defence of the President from an imputation of this kind, that the fact of Thomas Nash being an impressed American, was obviously not contemplated by him in the decision he made on the principles of the case. Consequently, if a new circumstance occurred, which would essentially change the case decided by the President, the Judge ought not to have acted under that decision, but the new circumstance ought to have been stated. Satisfactory as this defence might appear, he should not resort to it, because to some it might seem a subterfuge. He defended the conduct of the President on other and still stronger ground. The President had decided that a murder committed on board a British frigate on the high seas, was within the jurisdiction of that nation, and consequently within the twenty-seventh article of its treaty with the United States. He therefore directed Thomas Nash to be delivered to the British Minister, if satisfactory evidence of the murder should be adduced. The sufficiency of the evidence was submitted entirely to the Judge. If Thomas Nash had committed a murder, the decision was that he should be surrendered to the British Minister; but if he had not committed a murder, he was not to be surrendered. Had Thomas Nash been an impressed American, the homicide on board the Hermione would, most certainly, not have been a murder. The act of impressing an American, is an act of lawless violence. The confinement on board a vessel, is a continuation of the violence, and an additional outrage. Death committed within the United States, in resisting such violence, would not have been murder, and the person giving the wound could not have been treated as a murderer. Thomas Nash was only to have been delivered up to justice on such evidence as, had the fact been committed within the United States, would have been sufficient to have induced his commitment and trial for murder. Of consequence, the decision of the President was so expressed, as to exclude the case of an impressed American liberating himself by homicide. He concluded with observing, that he had already too long availed himself of the indulgence of the House, to venture farther on that indulgence by recapitulating or reinforcing the arguments which had already been urged. When Mr. MARSHALL had concluded, Mr. DANA rose and spoke against the resolutions. An adjournment was then called for and carried--yeas 50, nays 48. SATURDAY, March 8. _Case of Jonathan Robbins._ The House resumed the consideration of the report made on Thursday last, by the Committee of the whole House, to whom was referred the Message of the President of the United States, of the seventh ultimo, containing their disagreement to the motion referred to them on the twentieth ultimo; and the said motion being read, in the words following, to wit: (See _ante_--Mr. LIVINGSTON'S resolution, February 20.)[53] Mr. NICHOLAS spoke in answer to Mr. MARSHALL. The question was then taken that the House do agree with the Committee of the Whole in their disagreement to the same, and resolved in the affirmative--yeas 61, nays 35, as follows: YEAS.--Willis Alston, George Baer, Bailey Bartlett, James A. Bayard, John Bird, John Brown, William Cooper, William Craik, John Davenport, Franklin Davenport, Thomas T. Davis, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, William Gordon, Edwin Gray, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Archibald Henderson, William H. Hill, James H. Imlay, James Jones, John Wilkes Kittera, Henry Lee, Silas Lee, Samuel Lyman, James Linn, John Marshall, Abraham Nott, Harrison G. Otis, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, Richard Dobbs Spaight, David Stone, Benjamin Taliaferro, George Thatcher, John Chew Thomas, Richard Thomas, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. NAYS.--Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, John Condit, Joseph Eggleston, Lucas Elmendorph, John Fowler, Albert Gallatin, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, George Jackson, Aaron Kitchell, Michael Leib, Matthew Lyon, Edward Livingston, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Randolph, John Smilie, John Smith, Samuel Smith, Thomas Sumter, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, and Robert Williams. A motion was made to adjourn. Mr. MACON hoped the House would sit and decide the resolution proposed by the gentleman from Delaware, so as to have done with the business, and not to enter on another week with it; however, 54 rising for the adjournment, it was carried. MONDAY, March 10. _Case of Jonathan Robbins._ Mr. BAYARD moved that the Committee of the whole House, to whom was referred the Message of the President, relative to Thomas Nash, alias Jonathan Robbins, and a resolution submitted by himself to the House, approbating the conduct of the President, and referred to that committee, be discharged from the further consideration thereof. A long debate arose upon this motion, in which Messrs. RANDOLPH, DAVIS, JONES, NICHOLAS, LIVINGSTON, and EGGLESTON, spoke against it--and Messrs. BAYARD, BIRD, OTIS, KITTERA, VARNUM, RUTLEDGE, EDMOND, SHEPARD, and H. LEE, in favor of it; when the question was taken by yeas and nays, and carried in the affirmative--yeas 62, nays 35. MONDAY, March 17. _Medal to Captain Truxton._ Mr. PARKER observed that information had been received of a very gallant action having occurred between a frigate of the United States of 38 guns, commanded by Commodore Truxton, and a French vessel of 52 guns, which was extremely bloody, but valiant on the part of the United States commander. It was not usual to grant emoluments on account of any particular gallant action, to our officers, but to give approbation was common and consistent. In other countries, he said, monuments had been erected to commemorate such splendid victories. As a testimonial of the regard of Congress for the officers who so bravely supported the flag of the United States, and to encourage similar acts of bravery, he would propose the following resolution: _Resolved, by the Senate and House of Representatives of the United States in Congress assembled_, That a golden medal, emblematical of the late action between the United States frigate Constellation of 38 guns, and the French ship-of-war La Vengeance of 52 guns, be purchased under the Secretary of the Navy, and be presented to Captain Thomas Truxton, in testimony of the high sense entertained by Congress of his gallantry and good conduct in the above engagement, wherein an example was exhibited by the captain, officers, sailors, and marines, honorable to the American name, and instructive to its rising Navy. The resolution was ordered to lie on the table. TUESDAY, March 18. _Officers and Crew of the Constellation._ Mr. PARKER moved that the unfinished business be postponed for the purpose of taking up the resolution which he yesterday laid on the table, relative to the captain, officers, and crew of the Constellation; when Mr. NICHOLSON said he wished it might not be taken into consideration until some official information was received upon the subject from the Secretary of the Navy, upon which resolutions can be grounded. In his opinion, the resolution of the gentleman did not go far enough. It had been said, that a young officer had voluntarily lost his life, rather than shrink from his duty, which he thought ought to be noticed. He was in favor of giving his approbation of the conduct of the officers and crew in more general terms than the resolution on the table contemplated. After some observations from Messrs. CHAMPLIN and HARPER, who were of the same opinion, Mr. PARKER said, he did not suppose a doubt could exist upon this subject sufficient to require any further information than had been received through the medium of the newspapers. He had seen a letter in the possession of the Secretary of the Navy, from Captain Baker, of the Delaware, who had every opportunity of knowing the situation of the enemy's frigate, was in the same harbor, and, being a nautical man, was of course able to give a correct opinion on her then situation, and the evident marks of the bravery of her antagonist with whom she contended--this was sufficient to satisfy his mind. If, said Mr. P., gentlemen think the resolution does not go far enough, there is no one who will more cheerfully concur in offering other testimonies of approbation, than myself. With respect to the young officer,[54] whose gallantry and good conduct had been so highly spoken of, it was his intention to have brought forward a resolution for setting up his bust in a niche of the Capitol of the city of Washington. Mr. P. concluded with observing that he had no objection to call for information from the Secretary of the Navy, and would therefore withdraw his motion. Mr. PARKER then moved that the House come to the following resolution, viz: _Resolved_, That the Secretary of the Navy be requested to lay before this House any information he may possess, respecting the engagement which lately took place in the West Indies between the United States frigate Constellation and a French ship-of-war; _and, also, respecting the conduct of James Jarvis, a midshipman on board the said frigate_. Mr. SMITH moved to strike out the words in italics, which created considerable debate; when Mr. BIRD proposed to insert in lieu thereof, the following words: "And also upon the conduct of any officer or other person on board said frigate, who may have particularly signalized himself in the said action;" which Mr. B. supposed would meet the intention of the mover, and be less liable to objection than the words proposed to be stricken out. Mr. PARKER having consented to the modification, the resolution was agreed to. WEDNESDAY, March 19. _Military Academy, &c._ Mr. OTIS, from the Committee of Defence, reported a bill for establishing a Military Academy, and for better organizing the corps of Engineers and Artillerists. The bill was proceeding to be read, when Mr. OTIS suggested that as this bill contained much the same in detail as a report on the subject made by the Secretary of War, with which every gentleman was acquainted, he supposed the reading would not be necessary. Mr. MACON said he should have no objection to its being read a first time, though he did not think it necessary; but he would give notice that it was his intention to move that the bill be rejected. He mentioned his reasons to be the expense of the measure generally, which it was an improper time to incur. The bill having been read, he made the motion. Mr. OTIS and Mr. CHAMPLIN answered. Mr. VARNUM supported the motion, which was at length negatived, 49 to 42; and the bill was referred to a Committee of the whole House. THURSDAY, March 20. _Removal of Seat of Government._ Mr. OTIS observed that it appeared to be the general opinion that the seat of Government would be removed to the Federal City, and that Congress would commence their next session at that place; and as some preliminary measures were necessary to be made previous thereto; and as it would be reposing too much power in the Commissioners who now act there to rely entirely on their reports; and as some measures must be reported and adopted before the end of the present session, he laid on the table the following resolution: "_Resolved_, That a committee be appointed to consider what measures are expedient for Congress to adopt, preparatory to the removal of the seat of Government, with leave to report by bill or otherwise." _Amy Dardin's Case._ The House went into a committee on the report of the Committee of Claims on the petition of Amy Dardin, which was that the prayer of the petitioner ought not to be granted. Being taken up in the House, the propriety and impropriety of granting it was again contended, when there appeared in favor of the report 42, against it 42. The SPEAKER decided in the affirmative, so that the claim was not admitted. FRIDAY, March 21. _Action of the Frigate Constellation._ The SPEAKER laid before the House a report from the Secretary of the Navy, in compliance with the instructions of the House, respecting the engagement which occurred between the frigate Constellation and a French ship-of-war. The report enclosed a letter from Captain Truxton, detailing the action, and also extracts of letters from the American Consul at Curaçoa, and one from the American agent at St. Kitts, respecting the disabled state of the French ship La Vengeur. As to any particular specimen of valor, the Secretary received no information; but that all the officers and men had acted with the most unexampled bravery and decorum was attested by the captain, whose good management was evinced by the singular success of the action. The Secretary mentions the singular bravery of James Jarvis, a Midshipman, who preferred death to quitting his post. On motion of Mr. H. LEE, this report, together with a resolution proposed some days since by Mr. PARKER, was referred to the Naval Committee. MONDAY, March 26. _Medal to Captain Truxton._ Mr. PARKER, from the Naval Committee, reported the following resolutions: "_Resolved, by the Senate and House of Representatives of the United States, in Congress assembled_, That the President of the United States be requested to present to Captain Thomas Truxton, a golden medal, emblematical of the late action between the United States frigate Constellation, of 38 guns, and the French ship-of-war La Vengeur, of 54 guns, in testimony of the high sense entertained by Congress of his gallantry and good conduct in the above engagement, wherein an example was exhibited by the captain, officers, sailors, and marines, honorable to the American name, and instructive to its rising navy. "_Resolved_, That the conduct of James Jarvis, a midshipman in said frigate, who gloriously preferred certain death to an abandonment of his post, is deserving of the highest praise; and that the loss of so promising an officer is a subject of national regret." The House then proceeded to the consideration of these resolutions; the first of which being under consideration, Mr. RANDOLPH said, that inasmuch as he could not give his assent to these resolutions, he felt impressed with the propriety of stating the reasons which would govern his vote. It was not with any intention to detract from the deserved reputation which had been so nobly earned by the captain, officers, and crew of the Constellation; still less to withhold the well-earned applause due to that gallant youth who had sacrificed his life in the prosecution of his duty. It was to the first of these resolutions, only, that he should deny his concurrence. He should do this, unless the gentlemen of the Naval Committee should show to him that it was the duty of the commander of the Constellation to persist in the chase, and compel to action a ship of such superior force. This conduct was, in his opinion, rash; and, when the situation of the United States and France was taken into consideration, it was peculiarly unadvisable. Our Commissioners were at this time in the capital of that country negotiating peace. How did the pursuit of this ship--the forcing her into an action, which ended in the crippling of both vessels--comport with that protection which was to be afforded to our commerce by the Constellation? Mr. R. said that his duty obliged him to act upon his own opinion; and, however singular it may appear, he should vote against the first resolution, unless the gentleman who brought it forward would make it appear that it was the duty of Captain Truxton to compel the Vengeance to come to action, when he knew her to be of such superior force. The second resolution met his most hearty approbation. Mr. PARKER said, what the present state of things between the two countries might be, in the opinion of his colleague, he could not say; but Mr. P. conceived it was no other than it was at the time Congress passed a bill which prescribed the conduct of our naval commanders. In that bill they were authorized to take or destroy all French armed vessels: under these orders Captain Truxton left this country, and, in obedience to instructions to that effect, he pursued and engaged this vessel, which, though of superior force, he had beaten. Had he not attacked her, it is most probable she would have proceeded against our commerce. The law having been passed by Congress, if the President of the United States had not given orders conformably thereto, he would have been subject to impeachment. He, therefore, presumed it to be his duty; and, most certainly, such orders being given to the commanders, they were bound to conform to them. Mr. P. thought that this and greater approbation ought to be expressed by Congress for conduct so brave and unprecedented. In some countries monuments had been raised, but this was unnecessary, though merited. Our naval exertions were very recent and confined, but an instance of extraordinary valor having occurred it ought to be honorably and suitably noticed. Mr. NICHOLAS said, however he might agree with his colleague (Mr. RANDOLPH) in a desire that no conduct should be encouraged that would tend to aggravate France in the present situation of things, he could not agree with him in his present sentiments. While we were in a state of actual, though not of declared war, Mr. N. thought it was naturally to be expected that our commanders would act in their complete military character, when our ships were arrayed for battle, and power given to act up to the full rigor which the laws of honor and of war would warrant. In the conduct of the captain, as well as the crew, Mr. N. said, he saw nothing but what was extremely laudable, and highly meriting approbation. Mr. LYON said he rose to request the division of the question on the resolutions. He was disposed to vote for the latter resolution, and not for the former. The SPEAKER declared they would be divided, and that the question before the House was on the agreeing to the first resolution. Mr. LYON observed that he had voted for the equipment of the three frigates under an impression that they would be employed solely for the protection of the commerce of this country: but now he found himself called upon to give thanks or praise to the commander of one of those frigates, and for what? for going out of the station assigned to him, as the most proper for the protection of the trading vessels of this country, in chase of a ship-of-war of much superior force; and for reducing the ship under his command, as well as that of his opponent, to a mere wreck. Mr. L. said he had seen nothing in the orders which had been published directing him to do this, nor did he think policy or prudence dictated the measure. Let all our naval commanders be excited to follow this example; let them play or fight each of them their vessel against a French vessel-of-war of superior force in the same way, and our naval force is crippled, while the French will scarcely feel their loss; then our commerce would be wholly at their mercy. Besides these considerations, what is there to defend that commerce, on the station left destitute by the Constellation, while she is refitting. For his part he was as glad and proud as any gentleman that our officers, and our sailors, and our marines, had behaved gallantly and done themselves and their country honor, in the late action, but he did not feel himself bound, under existing circumstances, to give distinguished praise to the conduct which produced it; he should therefore vote against the resolution. Mr. J. BROWN would vote for this resolution for the very reason which some gentlemen urged for voting against it. He thought the very fact of chasing a ship of superior force, and forcing her to an action which had been attended with success, was a commendable act. This to him would be the only inducement for paying so high a mark of national respect. If it had been an attack upon a vessel of inferior force, he should not think it worth notice. The objection was partly on account of the French ship being of superior force; surely this would rather be a reason why we should have vessels of greater force than we have now; therefore he hoped the worthy member would suffer that brave officer to go to sea next time with a 74-gun ship under his command, when he would doubtless bring the enemy to a good account. The yeas and nays were called on this resolution and carried--yeas 87, nays 4, as follows: YEAS.--Willis Alston, George Baer, Bailey Bartlett, John Bird, Phanuel Bishop, Jonathan Brace, John Brown, Robert Brown, Samuel J. Cabell, Christopher G. Champlin, William C. C. Claiborne, John Condit, William Cooper, Samuel W. Dana, John Davenport, Thomas T. Davis, John Dawson, John Dennis, George Dent, Joseph Dickson, William Edmond, Joseph Eggleston, Lucas Elmendorph, Thomas Evans, Abiel Foster, Dwight Foster, John Fowler, Jonathan Freeman, Albert Gallatin, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, William Gordon, Edwin Gray, Roger Griswold, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, Archibald Henderson, William H. Hill, David Holmes, Benjamin Huger, James H. Imlay, James Jones, Aaron Kitchell, John Wilkes Kittera, Henry Lee, Silas Lee, Michael Leib, Samuel Lyman, James Linn, Nathaniel Macon, John Marshall, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, Abraham Nott, Harrison G. Otis, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, John Smilie, John Smith, Samuel Smith, Richard Stanford, David Stone, Benjamin Taliaferro, George Thatcher, John Chew Thomas, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, Robert Williams, Lemuel Williams, and Henry Woods. NAYS.--George Jackson, Matthew Lyon, John Randolph, and Thomas Sumter. The other resolution was adopted _unanimously_. MONDAY, March 31. _Lake Superior Copper Mines._ The House, according to the order of the day, again resolved itself into a Committee of the whole House on the report of the committee appointed, on the 5th instant, to inquire into the expediency of authorizing the PRESIDENT OF THE UNITED STATES to appoint an agent to purchase of the Indians a tract of land on the south side of Lake Superior, which shall include the great copper bed; and, after some time spent therein, the committee rose and reported a resolution thereupon; which was twice read, and agreed to by the House, as follows: _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That the President of the United States be authorized to employ an agent, who shall be instructed to collect all material information relative to the copper mines on the south side of Lake Superior, and to ascertain whether the Indian title to such lands as might be required for the use of the United States, in case they should deem it expedient to work the said mines, be yet subsisting; and, if so, the terms on which the same can be extinguished: And that the said agent be instructed to make report to the President, in such time as the information he may collect may be laid before Congress at their next session. _Ordered_, That the Clerk of this House do carry the said resolution to the Senate, and desire their concurrence. WEDNESDAY, April 2. _Removal of the Seat of Government._ The House then resolved itself into a committee on the bill to make further progress for the removal and accommodation of the Government of the United States. A motion was then made to fill a blank for the accommodation of the household of the President, about which considerable conversation occurred; when Mr. RUTLEDGE moved that the committee rise, in order that time may be given for learning the amount of money wanting for this object, and because he supposed the Chairman of the committee, who was absent, might be able to give that information. The motion was afterwards withdrawn, but renewed by the SPEAKER, and at length carried. THURSDAY, April 3. _Lands given in satisfaction of Judgments._ Mr. HARPER observed that in some of the States lands were received in satisfaction of judgments, which also was the case in such places where the United States were plaintiffs. To remedy what he conceived an evil, he laid on the table the following resolution: "_Resolved_, That a committee be appointed to inquire and report, by bill or otherwise, whether any, and what, further provisions are necessary to be made relative to the sales of real estate delivered to the United States in satisfaction of judgments against persons indebted thereto." Three members were appointed. FRIDAY, April 4. _Removal of the Seat of Government._ The House then went into Committee of the Whole on the bill for the removal and accommodation of the Government of the United States. Mr. HARPER proposed to amend the act so as that the sum to accommodate the household of the President of the United States with furniture, in addition to what was now in possession of the President, should not operate until after the third of March next. This he did, he said, in consequence of some constitutional doubts which he had expressed. The constitution declaring that the salary of the President should receive no addition nor diminution during his being in office. This was concurred in. The question then was, what sum should be allowed for that purpose; $20,000, $15,000, and $10,000, were severally named. Mr. RANDOLPH, considering the principle itself unconstitutional, moved, in order to defeat the section altogether, (it having been amended and being out of order to move its being stricken out,) to insert the sum of $500. These different sums called forth a lengthy debate. The sum of $20,000 was negatived--45 to 39. That of $15,000 was carried--yeas 44, nays 42. The bill being gone through, was ordered to be engrossed for a third reading on Monday. FRIDAY, April 18. _Disputed Elections of President, &c._ Mr. NICHOLSON called for the order of the day on the bill prescribing the mode of deciding disputed elections of President and Vice President of the United States. Mr. HARPER moved that it be postponed till Monday. Mr. NICHOLSON, after expressing his abhorrence of the principles contained in the bill, then moved that it be postponed till the first Monday in December next. Messrs. HARPER, DANA, RUTLEDGE, and MARSHALL, opposed this motion; and Messrs. S. SMITH, GALLATIN, RANDOLPH, NICHOLSON, and NICHOLAS, supported it. The question was taken by yeas and nays, and decided in the negative--yeas 48, nays 52. Mr. HARPER'S motion for postponement till Monday, was then agreed to--ayes 54. MONDAY, April 21. _Admirals in the Navy._ Mr. PARKER, from the Naval Committee, reported a bill for the appointment of admirals for the navy. [This bill provides for the appointment of one Vice Admiral and four Rear Admirals, and arranges the fleet into squadrons.] It was read a first time, and on the question for the second reading, it was carried--37 to 31. Having been read a second time, Mr. GALLATIN moved its postponement till the first Monday in December next. The SPEAKER said the question was, whether it should be committed or not? The question for commitment was carried, 37 to 32. The question was then to make it the order of the day for the first Monday in December next. Mr. EGGLESTON hoped it would be postponed. He said it would be agreed upon to suspend the building of the 74's for the present year; in addition to this our difference with France would most probably be soon adjusted. Another reason was, it would incur an addition of expense, which it would be improper to go into, having recently agreed to borrow $3,500,000. He was really surprised to hear such a bill proposed; he scarcely could think his colleague sincere. Mr. PARKER said that the building of the 74's was not suspended, but it was thought advisable not to hurry their building. He stated a number of conveniences that would attend the new arrangement; that the whole expense would not be more than $10,000, but owing to the advantages, he believed it would be a real saving. He did not think there could be any certainty of a peace, from the revolutionary disposition of France; but even if it was certain that peace would be made with that nation, it was not certain that the combined powers would not renew their hostilities. He wished this measure to be adopted, even if it was at the expense of the army. The return of peace would render the army nugatory, except just enough for the garrisons; the whole of the army expenses, he said, was upwards of four millions, but the whole sum expended on the navy (really a more efficient defence and advantage) was little more than two millions. He wished our naval defence to be nurtured and rendered respectable, for which the squadron arrangements and appointments of suitable commanders were necessary. Mr. CHAMPLIN also spoke in favor of the bill, and in favor of its commitment for an earlier day. Mr. CLAIBORNE could not think the gentleman (Mr. PARKER) sincere in his professions that the army was not necessary, when he perceived that every motion to reduce the army, which by other gentlemen was thought absolutely necessary, had as uniformly been opposed by that gentleman. Mr. C. said he did not look forward to a period when the navy as well as the army would be unnecessary. This appointment might take place at any time when there should be necessity of it; and, therefore, as it was not pretended the 74's could be built before the next session, it would then be time enough to think of voting these officers. The SPEAKER said that it was unknown in the Parliamentary proceedings of any country that the merits of a bill were discussed on a motion for postponement; he must therefore say that any discussion on the bill was out of order, and that gentlemen must confine themselves merely on the question of the day this bill should be made the order for. Mr. HARPER stated some of the inconveniences that must attend gentlemen who brought in, or would wish to support a bill being presented, recommending its provision by a motion to postpone; he conceived the bill a valuable one, and wished for an opportunity of endeavoring to convince the House of that fact, but he was precluded by the decision of the Chair, he must therefore beg leave to appeal from the decision. The question was put, "Is the decision of the Chair right?" and carried--yeas 65. Mr. SMITH said he should vote for this bill being the order for December next, but if the 74's were then ordered to proceed, he should vote for this bill, if then proposed. The yeas and nays were taken on the question, "Shall this bill be postponed till the first Monday in December next?" and decided in the negative--yeas 44, nays 45, as follows: YEAS.--Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Matthew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis, John Dawson, Joseph Eggleston, Lucas Elmendorph, John Fowler, Albert Gallatin, Andrew Gregg, William Barry Grove, John A. Hanna, Joseph Heister, David Holmes, George Jackson, James Jones, Michael Leib, Matthew Lyon, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, Abraham Nott, John Randolph, John Smilie, John Smith, Samuel Smith, Richard Dobbs Spaight, Richard Stanford, David Stone, Thomas Sumter, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, and Robert Williams. NAYS.--George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, William Cooper, Samuel W. Dana, John Davenport, Franklin Davenport, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, Robert Goodloe Harper, Benjamin Huger, James H. Imlay, Henry Lee, Silas Lee, Samuel Lyman, Lewis R. Morris, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, John Rutledge, jun., Samuel Sewall, James Sheafe, William Shepard, George Thatcher, John Chew Thomas, Richard Thomas, Robert Waln, Lemuel Williams, and Henry Woods. The bill was then made the order for to-morrow. FRIDAY, April 25. _Congress Library._ Mr. DENNIS said that by the act passed the present session, further to provide for the removal and accommodation of the Government of the United States, a sum not exceeding $5,000 was appropriated for the purpose of procuring a Library. In order to carry that provision into execution, he would move the following resolution: "_Resolved_, That ---- be a committee, jointly with such committee as may be appointed on the part of the Senate, for the purpose of making out a catalogue of books, and adopting the best mode of procuring a Library, at the city of Washington; and for adopting a system of rules and regulations relative thereto." This motion was agreed to, and Messrs. WALN, EVANS, and POWELL, appointed. SATURDAY, April 26. _Slave Trade._ The House resolved itself into a committee on the bill from the Senate, in addition to the act, entitled "An act prohibiting the carrying on the slave trade from the United States to any foreign place or country." Mr. J. BROWN said, when the motion was first laid on the table, he thought it improper to prevent the citizens of the United States enjoying the benefits of a trade enjoyed by all the European nations. He really was in hopes that the good sense of the select committee would have permitted them to have seen the policy of realizing the act in question. Many members of the House, he observed, knew how the former act was passed; they knew that Congress was drilled into it by certain persons who would not take _no_ for an answer. It was well known that the Abolition Society, otherwise the Society of Friends, as they were called, were very troublesome until they got that act passed. It was also well known that those people did not do much to support the Government, but that they did as much as they could to stop the measures of the Government, and particularly our defensive system, on which our national security depended. Mr. NICHOLAS asked whether it was in order to abuse any class of citizens in this manner, and particularly since no motion was before the committee? The CHAIRMAN said he conceived the gentleman to be in order, since he supposed he was about to make a motion affecting the principle of the bill. Mr. BROWN resumed. He was only speaking, agreeably to his information, how this bill came originally into existence. He was certain that this nation having an act against the slave trade, did not prevent the exportation of a slave from Africa. He believed we might as well, therefore, enjoy that trade, as to leave it wholly to others. It was the law of that country to export those whom they held in slavery--who were as much slaves there as those who were slaves in this country--and with as much right. The very idea of making a law against this trade, which all other nations enjoyed, and which was allowed to be very profitable, was ill policy. He would further say that it was wrong, when considered in a moral point of view, since, by the operation of the trade, the very people themselves much bettered their condition. It ought to be a matter of national policy, since it would bring in a good revenue to our Treasury. It was not pleasing to him, Mr. B. said, to pay an interest of 8 per cent. for our loan: rather than borrow money, he would wish to be paying off some of our old standing debt, which could be done by increasing our commerce, or rendering it free. He wished it to be free as the wind that blew--from one end of the world to the other. As he observed before, he believed not one more slave would be exported from Africa, while our merchants and our revenue would enjoy the benefit. Mr. B. said, our distilleries and manufactories were all lying idle for want of an extended commerce. He had been well informed that on those coasts New England rum was much preferred to the best Jamaica spirits, and would fetch a better price. Why should it not be sent there, and a profitable return be made? Why should a heavy fine and imprisonment be made the penalty for carrying on a trade so advantageous? But, he observed, if it was thought advisable that the old act should continue, he would wish it could be made to meet the purpose altogether, and prevent the system of slavery entirely, so that equal advantages might be given to all the inhabitants of the Union; without this, it would, as it ever had been, remain a great disadvantage. He therefore moved that the committee rise, in order to postpone the bill. He believed the House would be better prepared to meet it in a few days. Mr. NICHOLAS seconded the motion, not but that he was prepared to decide on it, but that there might be opportunity given to express an opinion. He really could not understand the gentleman, when he said that our people being employed in that trade would not add nor diminish the number exported. This was certainly a wrong calculation. These people were enslaved for their masters, or to supply some foreign market. Certainly if the number of purchasers were increased, the number of slaves would be increased. Surely the gentleman would not wish them brought into the United States when he talked of their condition being improved; this was a fact, to be sure, but would it be policy so to do? But another and an important point was touched upon--that he would wish the law to be made to meet another object, if it was determined to prohibit the trade in this country. As a Southern man, Mr. N. said, he would observe that he was placed in a most unfortunate situation, indeed, in being obliged, in common with other people of those States, to keep men in a state of slavery: but he had the consolation to inform the House, that he believed the people of the Southern States were wiping off the stain entailed upon them by their predecessors, in endeavoring to ameliorate the situation of that race of people as much as possible. This appeared to be an increasing disposition. He hoped the gentleman would have an opportunity to produce all his arguments on this subject, in his endeavors either to get the law repealed or to strengthen it, agreeably to his wish, in order that he might be satisfied that he would not find an advocate in the House. Mr. D. FOSTER spoke against the committee rising. Several sections of the bill were then gone through with, when the committee rose, and obtained leave to sit again. MONDAY, April 28. _The Slave Trade._ Mr. RUTLEDGE moved that the Committee of the Whole, to whom were referred the bill for preventing the carrying on the slave trade, &c., be discharged from further consideration thereof. He conceived it to be one of the most defective bills that ever was before Congress, because the object intended was in nowise provided for, or utterly impracticable. Mr. BAYARD was of the same opinion. He had taken some pains to examine the bill, but was obliged to conclude it extremely imperfect. The objects of the former bill, and which was intended to be improved, were, to prevent the citizens of the United States having any right in vessels so employed; and also to prevent the citizens of the United States being employed on board any such vessels. He trusted that a great majority of the members of the House would be in favor of those principles, and effectually promote them. It would indeed be extremely dishonorable in a country like this, to affirm such a trade, so contrary to all those principles held dear in the United States, and which ought to be promoted. His desire was, that a bill should be constructed upon the true principles of the intent of Congress: so far he thought they might go, but no farther. To be sure, as the gentleman from Rhode Island (Mr. J. BROWN) observed, the Government could derive revenue from the encouragement of this trade, but he thought a more dishonorable item of revenue could not be established. The committee was discharged. Mr. BAYARD then moved that the bill should be referred to a select committee. Mr. RUTLEDGE hoped this would not be agreed to; he was not disposed at this late day of the session to take up any new business that was not of urgency. He thought it was perfectly unnecessary to make a new act upon the subject; he believed the former act did every thing that was necessary or practicable to be done. What more could be wanted than that persons engaged in this traffic should forfeit their ships and pay a fine, besides, in many instances, imprisonment of the person offending? Surely that was all the occasion required. The different States which had heretofore imported those people into the United States had established the policy not to import any more; but in addition to this willing restriction, the Federal Government thought proper to prevent the trade being carried on, by our ships, to those countries which did suffer their importation. This was going very far indeed, but so far it was thought proper to go, to furnish a peace-offering to those philanthropists whose urgency was great to accomplish the general destruction of the trade. However, the activity of the people of the four New England States first engaged them in this profitable traffic; their produce would bring a good price on the African coast, and why they might not enjoy the profit of it as well as the English he could not conceive. He believed it to be impossible effectually to prevent it. Some gentlemen, indeed, had talked of authorizing our cruisers to seize vessels of this kind, but, suppose they were confiscated, what was to be done with their cargoes? They could not be brought into the United States. Where could they be carried? It was not consistent with the policy of the West India Islands to suffer them to land there, since it was their practice to keep these people in bondage, and they did not want, nor could they suffer free men to inundate those colonies. He knew of no place where they could be landed but St. Domingo, and as these people would not have been of those who had procured the freedom of slaves there--were not of those who had spread devastation and murder throughout that island, it was probable they would spurn them from their shores. What then was to be done with them? Surely no gentleman would wish them to be drowned, and it would be as absurd to think of sending them back to Sierra Leone! These difficulties he thought insuperable. Mr. WALN hoped the bill would be committed, and that the provisions of it would be made effectual to its object. As for the people of Pennsylvania, he believed he could say they were unanimously in favor of the trade being put an end to most completely; which was in nowise done by the law now in force, nor by the bill now proposed. He said it was well known, that great grievances did exist for want of the due execution of the law, and much greater than were generally known, and hence it was that no more was heard of it from the people on this subject. He had been well informed that great evasions had taken place, and that this unlawful trade was becoming more and more in use. In the last year he believed that near forty vessels entered the West Indies with this illicit species of commerce. In some parts of the United States, he had been well informed, it was become so popular, that if a vessel was seized and sold, it was impossible to get any person to bid for her, and therefore the owner was enabled to repurchase her at a very low price indeed. It would be much better to repeal the old law, and open the trade, than to suffer the law to continue when nearly a nullity. But this he believed was not the disposition of the House; he believed the House could carry the principle into effect, and he was sure that a very great majority of the American people would wish them to do it. The motion for recommitment was carried by a very large majority, and three members appointed. _Military Academy, &c._ Mr. EGGLESTON said, since he found the House so much disposed to prepare for the close of the session by postponing unnecessary business, he would move that the bill for establishing a Military Academy, and for the better organization of the corps of Artillerists and Engineers, be postponed till the first Monday in December next. After some observations against the motion, by Messrs. PARKER, CHAMPLIN, and H. LEE, and in favor of it by Messrs. EGGLESTON and SHEPARD, it was carried--yeas 64, nays 23. _Treaty with Great Britain._ The House went into a committee on the bill for the execution of the 27th article of the Treaty with Great Britain. A motion of Mr. NICHOLAS was under consideration, that no person whose case was cognizable in any of our courts should be delivered up. This caused a lengthy debate; it was advocated by Messrs. S. SMITH, NICHOLSON, and GALLATIN, and opposed by Messrs. BAYARD, DANA, and DENNIS. It was negatived 45 to 42. After which the committee rose, obtained leave to sit again, and the House adjourned. TUESDAY, April 29. An engrossed bill to promote the manufacture of sheet copper within the United States, by incorporating a company for carrying on the same, was read the third time, and passed. THURSDAY, May 1. _Appropriation for holding Indian Treaties._ The House resolved itself into a Committee of the whole House on the report of the committee to whom was referred, on the seventh of March last, the petition of William Hill and others, and, after some time spent therein, the committee rose and reported two resolutions thereupon; which were severally twice read, and agreed to by the House, as follows: _Resolved_, That the sum of ---- dollars ought to be appropriated by law to defray the expenses of such treaty or treaties as the PRESIDENT OF THE UNITED STATES may deem it expedient to hold with any nation or nations of Indians south-west of the river Ohio. _Resolved_, That provision ought to be made by law, authorizing and enabling all persons who, under the laws of North Carolina, and in conformity to the regulations and provisions thereof, have entered, surveyed, located, or obtained, grants of any of the lands ceded by the said State to the United States, in such manner as would have vested a good title under the said State of North Carolina, if such cession had not been made, to enter upon, occupy, and possess, the same, or to remove thereto their location from such lands, the titles whereto shall not be extinguished, whenever, and as soon as the Indian title or claim to a sufficient portion of the said land shall be extinguished, under the authority of the United States; and to possess and enjoy the same in as full and ample manner as if the same had been derived from, or under, the United States. _Ordered_, That a bill or bills be brought in, pursuant to the first resolution; and that Mr. PINCKNEY, Mr. CHAUNCEY GOODRICH, Mr. HENDERSON, Mr. NICHOLAS, and Mr. THATCHER, do prepare and bring in the same. SATURDAY, May 3. _Slave Trade._ The House went into committee on the bill to prohibit carrying on the slave trade to any foreign country. The committee rose and reported the bill. On the question, when it should be read a third time, it was carried for to-day. On the question for its passing, a long and warm debate ensued. Several attempts were made to postpone its passing, but to no effect. At length the question was taken--yeas 67, nays 5, as follows: YEAS.--Willis Alston, George Baer, Theodorus Bailey, Bailey Bartlett, James A. Bayard, Phanuel Bishop, Jonathan Brace, Robert Brown, Samuel J. Cabell, Matthew Clay, William C. C. Claiborne, John Condit, William Cooper, Samuel W. Dana, John Davenport, Franklin Davenport, John Dennis, William Edmond, Joseph Eggleston, Thomas Evans, Abiel Foster, Dwight Foster, Albert Gallatin, Henry Glenn, Chauncey Goodrich, Elizur Goodrich, Edwin Gray, Andrew Gregg, Roger Griswold, William Barry Grove, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, Joseph Heister, William H. Hill, David Holmes, James H. Imlay, Aaron Kitchell, Silas Lee, Michael Leib, Samuel Lyman, Nathaniel Macon, Lewis R. Morris, Peter Muhlenberg, John Nicholas, Abraham Nott, Robert Page, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, Samuel Sewall, William Shepard, John Smilie, John Smith, David Stone, Thomas Sumter, George Thatcher, John Chew Thomas, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, and Robert Williams. NAYS.--John Brown, George Dent, Joseph Dickson, Benjamin Huger, and John Rutledge, jr. And the House adjourned. TUESDAY, May 6. _Additional Revenue._ The House resolved itself into a Committee of the Whole on the further report of the Committee of Ways and Means, on the subject of the revenue; when the first resolution, laying an additional duty of twenty per centum on wines, after being amended, on motion of Mr. GRISWOLD, to read as follows, was adopted: "_Resolved_, That it is expedient to lay an additional duty of twenty per centum on the amount of the present duty upon wines imported into the United States, and to vary the scale of duties in such manner as to comport with the plan of the Secretary of the Treasury." The second resolution was agreed to without debate as follows: "_Resolved_, That it is expedient to lay an additional duty of two and a half per centum ad valorem on such goods, wares, and merchandise, imported into the United States, as are now subject to a duty of ten per centum ad valorem." The third resolution was opposed by Messrs. HARPER and S. SMITH, and supported by Mr. GRISWOLD; after which the committee rose, and obtained leave to sit again. WEDNESDAY, May 7. A message from the Senate informed the House, that they have concurred in the amendments of this House, to the bill relative to the slave trade with several amendments, to which they desire the concurrence of the House; also, that the Senate insist on some of their amendments disagreed to by this House, to the bill supplementary to an act for an amicable settlement of limits within the State of Georgia, and for establishing a government in the Mississippi Territory. _Additional Army._ Mr. HARPER said, that by the terms of enlistment of the additional army, they were engaged to serve for three years, or until an amicable adjustment of the differences existing between the United States and France; from which circumstance, the President was precluded, even if he knew the preliminaries of peace to be adjusted, from disbanding it until a treaty should be actually concluded and ratified by the two Governments--whereby the troops would be kept for perhaps six months in service unnecessarily. The Navy and other parts of our defensive system, were upon a different footing. He wished the Army to be placed on a similar one, and therefore moved the following resolution: "_Resolved_, That it is expedient to authorize the President of the United States to discharge the additional army thereof, as soon as the state of things between the United States and the French Republic will warrant the measure." The resolution was agreed to, and referred to the Committee of the whole House, to whom was committed the bill from the Senate, to suspend part of the act entitled "An act to augment the Army of the United States." _Additional Revenue._ The House again resolved itself into a Committee of the Whole on the further report of the Committee of Ways and Means on the subject of revenue; and the tax on drawbacks being under consideration, Mr. GRISWOLD and Mr. HARPER again spoke for and against the motion. Mr. NICHOLAS, Mr. HUGER, and Mr. RANDOLPH, also spoke against the motion; after which the question was taken and negatived, only 23 votes being in favor of it. The third resolution, to lay an additional duty of one half per cent. per pound on brown sugar and coffee imported into the United States was opposed by Mr. GRISWOLD, who doubted much the propriety of laying an additional duty on coffee, and therefore moved to strike out that article. The motion was opposed by Mr. HARPER, and advocated by Mr. SEWALL, who was of opinion that this article was frequently smuggled, and was apprehensive it would be more so, if an additional duty were laid, and therefore would injure the revenue. The motion was carried--yeas 38, nays 21. The question on the resolution as amended, was, after some debate, put and carried--yeas 45, nays 28. The fourth resolution reported, to retain two and a half per centum on all drawbacks allowed for goods re-exported from the United States, in addition to the sums heretofore directed to be retained by law, and also on the whole of the additional duty on goods imported in foreign ships or vessels, was agreed to without debate. The committee then rose, and, upon the question, Will the House concur with the committee in their agreement to the resolution laying an additional duty on sugar? the yeas and nays were called for, and taken--54 to 28. The other resolutions, as amended, were also agreed to, and the Committee of Ways and Means directed to bring in a bill or bills conformable thereto. THURSDAY, May 8. _Memory of Washington._ Mr. H. LEE, from the select committee appointed to consider what measures it would be proper for Congress to adopt for paying suitable respect to the memory of the man first in peace, first in war, and first in the hearts of his countrymen--the deceased General WASHINGTON--made a report, recommending the adoption of the following resolutions: "_Resolved_, That the resolution of Congress passed in the year 1783, respecting an equestrian statue of General WASHINGTON, be carried into immediate execution, and that the statue be placed in the centre of an area to be formed in front of the Capitol. "_Resolved_, That a marble monument be erected by the United States in the Capitol at the city of Washington, in honor of General WASHINGTON, to commemorate his services, and to express the regrets of the American people for their irreparable loss. "_Resolved_, That the President of the United States be requested to give such directions as may appear to him proper, to carry the preceding resolutions into effect; and that for the present, the sum of $100,000 be appropriated for these purposes." The resolutions were referred to a Committee of the whole House, and immediately taken into consideration; when Mr. HARPER moved to amend the first resolution, by inserting that a mausoleum be erected for General WASHINGTON, in the city of Washington, instead of the statue proposed, which was carried; the other resolutions were negatived, of course. The committee then rose, and the resolution, as amended by Mr. HARPER, was agreed to by the House, and a bill ordered to be brought in pursuant thereto. FRIDAY, May 9. _The Treasury Department._ The House went into a committee on the act supplementary to the act entitled "An act to establish the Treasury Department." The committee rose and reported the bill--which provided that the Secretary of the Treasury should lay before Congress, at the commencement of every session, a report on the subject of finance together with such plans for improving the revenue as may occur to him. Mr. GALLATIN and Mr. NICHOLAS opposed the passing of the bill, on constitutional principles. They observed, that as all money bills were to originate in the House of Representatives, the Senate had no right to propose any bill by which that provision was changed; nor could the Secretary of the Treasury, upon the same ground, propose any thing that should originate any money bill. Heretofore, it had been usual, when information was wanting by the House, to call for it from that department, and the same could be done again. It was contended by Mr. GRISWOLD and Mr. HARPER, that it was not a power to report a bill, but merely the state of our finances, which, for want of due notice, had heretofore been delayed, so as to throw all the most important business upon the close of the session, whereas, by a leisurely and mature examination, the Secretary of the Treasury would be enabled to make a timely and complete report. The bill passed to its third reading--43 to 39. _Memory of Washington._ Mr. EVANS, from the committee appointed for that purpose, reported a bill for erecting a mausoleum for GEORGE WASHINGTON, in the city of Washington. The bill provided that it should be one hundred feet square at the base, and of a proportionate height. Mr. EGGLESTON wished to hear the estimated price. Mr. HARPER said he had an estimate from Mr. Latrobe, of Philadelphia, who was the architect employed on the Pennsylvania Bank, the estimate of which had rather been over the actual expense; the estimate was that a pyramid of one hundred feet at the bottom, with nineteen steps, having a chamber thirty feet square, made of granite, to be taken from the Potomac, with a marble sarcophagus in the centre, and four marble pillars on the outside, besides other proportionate ornaments, would amount to $62,500. He hoped no objection would be made to the price, since it could not occur on any future occasion, as _another_ WASHINGTON _would never die_. Mr. NICHOLAS thought every sense of respect would be as well signified by a building of less dimensions, and it would be considerable less expense; he moved to strike out one hundred and insert sixty. After some debate, this was negatived. The bill was then ordered to be engrossed for its third reading. _Meeting of Congress._ A bill was received from the Senate appointing the time and directing the place of the next meeting of Congress, which provided that the two Houses should meet at the city of Washington on the third Monday in November next. The House went into committee thereupon, which was reported. On the question for its third reading, it was carried--yeas 32, nays 32. The SPEAKER voted in the affirmative, and it was ordered to a third reading to-morrow. SATURDAY, May 10. _Memory of Washington._ The bill for erecting a mausoleum for GEORGE WASHINGTON, in the city of Washington, was read a third time; and upon the question, shall the bill pass? Mr. KITCHELL called the yeas and nays upon it, and proceeded to give his reasons why he would vote against the bill. He was followed by Mr. HARPER in favor of it, and Mr. RANDOLPH against it; when the question was taken, and the bill passed--yeas 54, nays 19, as follows: YEAS.--Willis Alston, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Gabriel Christie, William C. C. Claiborne, William Craik, Samuel W. Dana, Franklin Davenport, Thomas T. Davis, John Dawson, George Dent, Joseph Dickson, Thomas Evans, Abiel Foster, Albert Gallatin, Henry Glenn, Chauncey Goodrich, Elizur Goodrich, Edwin Gray, Roger Griswold, John A. Hanna, Robert Goodloe Harper, David Holmes, Benjamin Huger, James H. Imlay, James Jones, John Wilkes Kittera, Henry Lee, Silas Lee, Edward Livingston, Lewis R. Morris, Peter Muhlenberg, Abraham Nott, Robert Page, Jonas Platt, Leven Powell, John Read, John Rutledge, jun., Samuel Sewall, James Sheafe, John Smith, Samuel Smith, Richard Dobbs Spaight, George Thatcher, John C. Thomas, Richard Thomas, Abram Trigg, Philip Van Cortlandt, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. NAYS.--Theodorus Bailey, Robert Brown, Matthew Clay, John Condit, John Davenport, George Jackson, Aaron Kitchell, Michael Leib, James Linn, Nathaniel Macon, Anthony New, John Nicholas, John Randolph, William Shepard, John Smilie, Thomas Sumter, John Thompson, John Trigg, and Joseph B. Varnum. _Next Meeting of Congress._ The bill from the Senate appointing the time and directing the place of the next meeting of Congress, was read a third time; when Mr. BAYARD moved that it be recommitted to a Committee of the whole House, for the purpose of altering the time of commencing the session. After some debate, the motion was negatived. The question was then put, shall the bill pass? and resolved in the affirmative--yeas 41, nays 35. The next meeting of Congress will of course take place on the third Monday in November next. _Imprisonment for Debt._ The bill making further provision for the relief of persons imprisoned for debts due the United States, was taken up in committee, agreed to, and upon the question shall the bill be engrossed for a third reading, it passed in the affirmative--yeas 36, nays 25. The bill was subsequently read the third time and passed--yeas 39, nays 27. [By this bill no person indebted to the United States can be discharged from prison, unless he shall have suffered two years imprisonment.] _Elections of President._ A message was received from the Senate informing the House that the Senate adhere to their disagreement to the amendments to the bill prescribing the mode of deciding disputed elections of President and Vice President of the United States, made by this House, and subsequently insisted on, Whereupon, Mr. HARPER moved that this House do also adhere to their disagreement to recede; which was carried, and the bill, consequently, is lost. MONDAY, May 12. On motion of Mr. NICHOLAS, the House rescinded a resolution to adjourn the two Houses this day, and a resolution was adopted that the President of the Senate and the Speaker of the House should adjourn both Houses to-morrow. The Senate amended it by proposing Wednesday. On the question of concurrence, it was carried, 40 to 24. A message from the Senate, informed the House that the Senate agree to the resolution for postponing the time of adjournment of the two Houses, with an amendment; to which they desire the concurrence of this House. The House proceeded to consider the amendment proposed by the Senate to the resolution for postponing the time of adjournment: Whereupon, _Resolved_, that this House doth agree to the said amendment. WEDNESDAY, May 14. _Canadian Refugees._ A message from the Senate informed the House that the Senate have passed a bill regulating the grants of land to the Canada and Nova Scotia refugees, with amendments. The amendments were taken into consideration, and opposed by Mr. GALLATIN, who said the object of the Senate was to give the refugees land worth ten cents an acre, instead of good land worth one dollar per acre, as proposed by this House; rather than do this, he would give them nothing. Mr. LIVINGSTON was of the same opinion, and hoped the House would not concur. These people had waited eighteen years, and he thought it extremely hard they should now be put off in this manner. The amendments were unanimously rejected. A message from the Senate informed the House that they adhered to the amendment; whereupon, Mr. GALLATIN moved that the further consideration of the bill be postponed till the third Monday in November next, which was carried. After receiving several messages from the PRESIDENT, notifying the signing of various bills, there appearing no further business before the House, on motion of Mr. C. GOODRICH a resolution for the appointment of a joint committee to wait on the PRESIDENT, and inform him of the proposed recess, was adopted, and was concurred in by the Senate. Mr. C. GOODRICH, from the Joint Committee, reported that they had performed that service, and that the PRESIDENT informed them he had no other communication to make, except his good wishes for their health and happiness, and that he wished them a pleasant journey to their respective homes. A message having been sent to the Senate to inform them this House was ready to adjourn, after a few minutes a motion was made for that purpose, and carried; when The SPEAKER, after taking an affectionate farewell of the members, and expressing his wish for their safe return and happiness, during the recess, adjourned the House till the third Monday in November next, to meet in the city of Washington, in the District of Columbia. SIXTH CONGRESS.--SECOND SESSION. BEGUN AT THE CITY OF WASHINGTON, NOVEMBER 17, 1800.[55] PROCEEDINGS IN THE SENATE. MONDAY, November 17, 1800. In pursuance of the law of the last session, the second session of the sixth Congress commenced this day, at the city of Washington, and the Senate assembled, in their Chamber, at the Capitol. Present: JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire. DWIGHT FOSTER, from Massachusetts. JAMES HILLHOUSE and URIAH TRACY, from Connecticut. THEODORE FOSTER, from Rhode Island. NATHANIEL CHIPMAN, from Vermont. JAMES SCHUREMAN, from New Jersey. WILLIAM HILL WELLS, from Delaware. JOHN E. HOWARD, from Maryland. STEPHENS THOMPSON MASON, from Virginia. JOHN BROWN, from Kentucky. JOSEPH ANDERSON and WILLIAM COCKE, from Tennessee. ABRAHAM BALDWIN, from Georgia. The number of members present not being sufficient to constitute a quorum, the Senate adjourned to 11 o'clock to-morrow morning. TUESDAY, November 18. The number of members present not being sufficient to constitute a quorum, the Senate adjourned. WEDNESDAY, November 19. There being no quorum, the Senate adjourned. THURSDAY, November 20. There being no quorum present, the Senate adjourned. FRIDAY, November 21. TIMOTHY BLOODWORTH, from the State of North Carolina; HUMPHREY MARSHALL, from the State of Kentucky; and GOUVERNEUR MORRIS, from the State of New York, severally attended. The credentials of DWIGHT FOSTER, appointed a Senator by the State of Massachusetts, in place of Samuel Dexter, resigned, were read, and he took his seat in the Senate. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President, _pro tempore_, as the constitution provides, and JOHN E. HOWARD was chosen. The PRESIDENT administered the oath prescribed by law to Mr. FOSTER. _Ordered_, that the Secretary wait on the PRESIDENT OF THE UNITED STATES, and acquaint him that a quorum of the Senate is assembled, and that, in the absence of the Vice President, they have elected JOHN E. HOWARD, President of the Senate, _pro tempore_. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business; and that, in the absence of the Vice President, they have elected JOHN E. HOWARD President of the Senate, _pro tempore_. A message from the House of Representatives informed the Senate that a quorum of the House is assembled, and they have appointed a committee on their part, together with such committee as the Senate may appoint, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make them. _Resolved_, That the Senate concur in the resolution last recited, and that Messrs. WELLS and TRACY be the committee on the part of the Senate. Mr. WELLS reported, from the joint committee last mentioned, that they had waited on the PRESIDENT OF THE UNITED STATES; and that he acquainted the committee that he would meet the two Houses of Congress, at 12 o'clock to-morrow, in the Senate Chamber. SATURDAY, November 22. _Ordered_, That the Secretary notify the House of Representatives, that the Senate are ready to meet them in their Chamber, for the purpose of receiving the communications from the PRESIDENT OF THE UNITED STATES. The House of Representatives having accordingly taken the seats assigned them, the PRESIDENT OF THE UNITED STATES came into the Senate Chamber, and addressed both Houses of Congress as follows: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: Immediately after the adjournment of Congress at their last session in Philadelphia, I gave directions, in compliance with the laws, for the removal of the public offices, records, and property. These directions have been executed, and the public officers have since resided and conducted the ordinary business of the Government in this place. I congratulate the people of the United States on the assembling of Congress at the permanent seat of their Government; and I congratulate you, gentlemen, on the prospect of a residence not to be changed. Although there is cause to apprehend that accommodations are not now so complete as might be wished, yet there is great reason to believe that this inconvenience will cease with the present session. It would be unbecoming the Representatives of this nation to assemble, for the first time, in this solemn temple, without looking up to the Supreme Ruler of the Universe, and imploring his blessing. May this Territory be the residence of virtue and happiness! In this city may that piety and virtue, that wisdom and magnanimity, that constancy and self-government which adorned the great character whose name it bears, be for ever held in veneration! Here, and throughout our country, may simple manners, pure morals, and true religion flourish for ever! It is with you, gentlemen, to consider whether the local powers over the District of Columbia, vested by the constitution in the Congress of the United States, shall be immediately exercised. If, in your opinion, this important trust ought now to be executed, you cannot fail, while performing it, to take into view the future probable situation of the Territory for the happiness of which you are about to provide. You will consider it as the Capital of a great nation, advancing, with unexampled rapidity, in arts, in commerce, in wealth, and in population; and possessing, within itself, those energies and resources which, if not thrown away, or lamentably misdirected, will secure to it a long course of prosperity and self-government. In compliance with a law of the last session of Congress, the officers and soldiers of the temporary army have been discharged. It affords real pleasure to recollect the honorable testimony they gave of the patriotic motives which brought them into the service of their country, by the readiness and regularity with which they returned to the station of private citizens. It is, in every point of view, of such primary importance to carry the laws into prompt and faithful execution, and to render that part of the administration of justice which the constitution and laws devolve on the federal courts, as convenient to the people as may consist with their present circumstances, that I cannot omit once more to recommend to your serious consideration the judiciary system of the United States. No subject is more interesting than this to the public happiness, and to none can those improvements which may have been suggested by experience be more beneficially applied. A Treaty of Amity and Commerce with the King of Prussia has been concluded and ratified. The ratifications have been exchanged, and I have directed the treaty to be promulgated by proclamation. The difficulties which suspended the execution of the sixth article of our Treaty of Amity, Commerce, and Navigation, with Great Britain, have not yet been removed. The negotiation on this subject is still pending. As it must be for the interest and honor of both nations to adjust this difference with good faith, I indulge confidently the expectation that the sincere endeavors of the Government of the United States to bring it to an amicable termination will not be disappointed. The Envoys Extraordinary and Ministers Plenipotentiary from the United States to France were received by the First Consul with the respect due to their character; and three persons with equal powers were appointed to treat with them.[56] Although, at the date of the last official intelligence, the negotiation had not terminated, yet it is to be hoped that our efforts to effect an accommodation will at length meet with a success proportioned to the sincerity with which they have been so often repeated. While our best endeavors for the preservation of harmony with all nations will continue to be used, the experience of the world, our own experience, admonish us of the insecurity of trusting too confidently to their success. We cannot, without committing a dangerous imprudence, abandon those measures of self-protection which are adapted to our situation, and to which, notwithstanding our pacific policy, the violence and injustice of others may again compel us to resort. While our vast extent of sea-coast, the commercial and agricultural habits of our people, the great capital they will continue to trust on the ocean, suggest the system of defence which will be most beneficial to ourselves, our distance from Europe, and our resources for maritime strength, will enable us to employ it with effect. Seasonable and systematic arrangements, so far as our resources will justify, for a navy, adapted to defensive war, and which may, in case of necessity, be quickly brought into use, seem to be as much recommended by a wise and true economy as by a just regard for our future tranquillity, for the safety of our shores, and for the protection of our property committed to the ocean. The present Navy of the United States, called suddenly into existence by a great national exigency, has raised us in our own esteem; and, by the protection afforded to our commerce, has effected, to the extent of our expectations, the objects for which it was created. In connection with a navy ought to be contemplated the fortification of some of our principal seaports and harbors. A variety of considerations, which will readily suggest themselves, urge an attention to this measure of precaution. To give security to our principal ports, considerable sums have already been expended, but the works remain incomplete. It is for Congress to determine whether additional appropriations shall be made, in order to render competent to the intended purposes the fortifications which have been commenced. The manufacture of arms within the United States still invites the attention of the national Legislature. At a considerable expense to the public this manufacture has been brought to such a state of maturity as, with continued encouragement, will supersede the necessity of future importations from foreign countries. _Gentlemen of the House of Representatives_: I shall direct the estimates of the appropriations necessary for the ensuing year, together with an account of the public revenue and expenditure, to a late period, to be laid before you. I observe, with much satisfaction, the product of the revenue during the present year has been more considerable than during any former equal period. This result affords conclusive evidence of the great resources of this country, and of the wisdom and efficiency of the measures which have been adopted by Congress for the protection of commerce and preservation of public credit. _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: As one of the grand community of nations, our attention is irresistibly drawn to the important scenes which surround us. If they have exhibited an uncommon portion of calamity, it is the province of humanity to deplore, and of wisdom to avoid, the causes which may have produced it. If, turning our eyes homeward, we find reason to rejoice at the prospect which presents itself; if we perceive the interior of our country prosperous, free, and happy; if all enjoy in safety, under the protection of laws emanating only from the general will, the fruits of their own labor, we ought to fortify and cling to those institutions which have been the source of such real felicity; and resist, with unabating perseverance, the progress of those dangerous innovations which may diminish their influence. To your patriotism, gentlemen, has been confided the honorable duty of guarding the public interests; and, while the past is to your country a sure pledge that it will be faithfully discharged, permit me to assure you that your labors to promote the general happiness will receive from me the most zealous co-operation. JOHN ADAMS. UNITED STATES, _Nov. 22, 1800_. The PRESIDENT OF THE UNITED STATES having retired, the two Houses separated. _Ordered_, That Messrs. TRACY, MORRIS, and BALDWIN, be a committee to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech this day to both Houses. It was further ordered that the Speech be printed for the use of the Senate. MONDAY, November 24. JONATHAN DAYTON, from the State of New Jersey, attended. Mr. TRACY, from the committee appointed to draft an Address in answer to the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress, at the opening of the session, made a report, which was read, and ordered to lie for consideration. TUESDAY, November 25. WILSON CARY NICHOLAS, from the State of Virginia, attended. The Senate took into consideration the report of the committee of the draft of an Address in answer to the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress, at the opening of the session; which, being read in paragraphs, and amended, was adopted, as follows: _To the President of the United States_: SIR: Impressed with the important truth that the hearts of rulers and people are in the hand of the Almighty, the Senate of the United States most cordially join in your invocations for appropriate blessings upon the Government and people of this Union. We meet you, sir, and the other branch of the national Legislature in the city which is honored by the name of our late hero and sage, the illustrious WASHINGTON, with sensations and emotions which exceed our power of description. While we congratulate ourselves on the convention of the Legislature at the permanent seat of Government, and ardently hope that permanence and stability may be communicated as well to the Government itself as to its seat, our minds are irresistibly led to deplore the death of him who bore so honorable and efficient a part in the establishment of both. Great indeed would have been our gratification if his sum of earthly happiness had been completed by seeing the Government thus peaceably convened at this place; but we derive consolation from a belief that the moment in which we were destined to experience the loss we deplore, was fixed by that Being whose counsels cannot err; and from a hope that, since in this seat of Government, which bears his name, his earthly remains will be deposited, the members of Congress, and all who inhabit the city, with these memorials before them, will retain his virtues in lively recollection, and make his patriotism, morals, and piety, models for imitation. And permit us to add, sir, that it is not among the least of our consolations that you, who have been his companion and friend from the dawning of our national existence, and trained in the same school of exertion to effect our independence, are still preserved by a gracious Providence in health and activity to exercise the functions of Chief Magistrate. The question whether the legal powers over the District of Columbia, vested by the constitution in the Congress of the United States, shall be immediately exercised, is of great importance, and in deliberating upon it, we shall naturally be led to weigh the attending circumstances and every probable consequence of the measures which may be proposed. The several subjects for Legislative consideration, contained in your Speech to both Houses of Congress, shall receive from the Senate all the attention which they can give, when contemplating those objects, both in respect to their national importance, and the additional weight that is given them by your recommendation. We deprecate, with you, sir, all spirit of innovation, from whatever quarter it may arise, which may impair the sacred bond that connects the different parts of this empire; and we trust, that, under the protection of Divine Providence, the wisdom and virtue of the citizens of the United States will deliver our national compact unimpaired to a grateful posterity. From past experience, it is impossible for the Senate of the United States to doubt of your zealous co-operation with the Legislature in every effort to promote the general happiness and tranquillity of the Union. Accept, sir, our warmest wishes for your health and happiness. JOHN E. HOWARD, _President of the Senate, pro tempore_. _Resolved_, That a committee be appointed to wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be convenient for him that the Address of the Senate, in answer to his Speech to both Houses of Congress at the opening of the session, shall be presented; and that Messrs. TRACY, MORRIS, and BALDWIN, be this committee. A message from the House of Representatives informed the Senate that the House have resolved, that two Chaplains be appointed to Congress, for the present session, one by each House, to interchange weekly; in which they desire the concurrence of the Senate. The Senate took into consideration the resolution last mentioned; and _Resolved_, That they do concur therein with the following amendment: after the word "Chaplains," insert "of different denominations." WEDNESDAY, November 26. Mr. TRACY reported, from the committee yesterday appointed for the purpose, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he would receive the Address of the Senate this day, at 12 o'clock, at his own house. Whereupon, the Senate waited on the PRESIDENT OF THE UNITED STATES accordingly: and the President of the Senate, in their name, presented the Address yesterday agreed to. To which the PRESIDENT made the following reply: _Mr. President and Gentlemen of the Senate_: For this excellent Address, so respectful to the memory of my illustrious predecessor, which I receive from the Senate of the United States, at this time, and in this place, with peculiar satisfaction, I pray you to accept of my unfeigned acknowledgments. With you, I ardently hope, that permanence and stability will be communicated as well to the Government itself, as to its beautiful and commodious seat. With you I deplore the death of that hero and sage who bore so honorable and efficient a part in the establishment of both. Great indeed would have been my gratification, if his sum of earthly happiness had been completed by seeing the Government thus peaceably convened at this place, himself at its head. But, while we submit to the decision of Heaven, whose councils are inscrutable to us, we cannot but hope, that the members of Congress, the officers of Government, and all who inhabit the city or the country, will retain his virtues in lively recollection, and make his patriotism, morals, and piety, models for imitation. I thank you, gentlemen, for your assurance that the several subjects for legislative consideration, recommended in my communication to both Houses, shall receive from the Senate a deliberate and candid attention. With you, gentlemen, I sincerely deprecate all spirit of innovation which may weaken the sacred bond that connects the different parts of this nation and Government; and with you I trust, that, under the protection of Divine Providence, the wisdom and virtue of our citizens will deliver our national compact unimpaired to a free, prosperous, happy, and grateful posterity. To this end it is my fervent prayer, that, in this city, the fountains of wisdom may be always open, and the streams of eloquence for ever flow. Here may the youth of this extensive country for ever look up without disappointment, not only to the monuments and memorials of the dead, but to the examples of the living, in the members of Congress and officers of Government, for finished models of all those virtues, graces, talents, and accomplishments, which constitute the dignity of human nature, and lay the only foundation for the prosperity or duration of empires. JOHN ADAMS. CITY OF WASHINGTON, _Nov. 26, 1800_. The Senate returned to their own Chamber; and the reply of the PRESIDENT OF THE UNITED STATES having been read, adjourned. FRIDAY, November 28. THOMAS JEFFERSON, Vice President of the United States, and President of the Senate, attended. MONDAY, December 1. JESSE FRANKLIN, from the State of North Carolina, attended. The VICE PRESIDENT communicated a letter from JAMES LLOYD, a Senator from the State of Maryland, resigning his seat in the Senate; which was read. TUESDAY, December 2. JACOB READ, from the State of South Carolina, and JAMES GUNN, from the State of Georgia, severally attended. THURSDAY, December 4. RAY GREENE, from the State of Rhode Island, and ELIJAH PAINE, from the State of Vermont, severally attended. MONDAY, December 15. WILLIAM HINDMAN, appointed a Senator by the Legislature of the State of Maryland, for the remainder of the term for which JAMES LLOYD was elected, produced his credentials, was qualified, and took his seat in the Senate. FRIDAY, December 19. JONATHAN MASON, appointed a Senator by the Legislature of the State of Massachusetts, in place of BENJAMIN GOODHUE, resigned, produced his credentials, was qualified, and took his seat in the Senate. MONDAY, January 5, 1801. _Mississippi Territorial Laws._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: I transmit to both Houses of Congress, for their information and consideration, copies of laws enacted by the Governor and Judges of the Mississippi Territory, from the 30th of June until the 31st of December, A. D. 1799.[57] JOHN ADAMS. UNITED STATES, _Jan. 1, 1801_. The Message was read and ordered to lie for consideration. WEDNESDAY, January 7. The Senate took into consideration the report of the committee to whom was referred so much of the PRESIDENT'S Speech as relates to the exercise of the local powers over the District of Columbia, vested by the constitution in the Congress of the United States; which is, "That, by the cession of the several States of Virginia and Maryland, and the acceptance thereof by Congress, the said District has become the permanent Seat of the Government of the United States; "That the powers of the said States to legislate within said District have wholly ceased; "And that the sole power of legislation over the same is thereupon exclusively vested in Congress." And, on motion to agree thereto, a motion was made for the previous question, to wit: "Shall the main question be now put?" and which passed in the negative. The Senate resumed the second reading of the bill concerning the District of Columbia; and, after debate, _Ordered_, That it be recommitted to the original committee, further to consider and report thereon. THURSDAY, January 8. JOHN ARMSTRONG, appointed a Senator by the Legislature of the State of New York, in place of JOHN LAURANCE, resigned, produced his credentials, was qualified, and took his seat in the Senate. MONDAY, January 12. WILLIAM BINGHAM and JAMES ROSS, from the State of Pennsylvania, severally attended. THURSDAY, January 15. Mr. NICHOLAS, from the committee on the bill to erect a mausoleum for GEORGE WASHINGTON, reported amendments; which were read, and ordered to lie for consideration. TUESDAY, January 20. The Senate proceeded to the consideration of Executive business. WEDNESDAY, January 21. The VICE PRESIDENT communicated a letter from the Commissioners of the City of Washington, addressed to both Houses of Congress requesting the assignment of a room in the Capitol for the temporary accommodation of the Supreme Judicial Court of the United States; which was read. _Resolved_, That the Secretary be directed to inform the Commissioners of the City of Washington that the Senate consent to the accommodation of the Supreme Court in one of the committee rooms, as proposed in their letter. THURSDAY, January 22. _Mausoleum for Washington._ The Senate resumed the consideration of the report of the committee on the bill to erect a mausoleum for GEORGE WASHINGTON; and on motion to agree to the report, and to strike out, after the word "That," immediately following the enacting clause, the whole of the bill, for the purpose of inserting as follows: "In testimony of the respect and gratitude of the citizens of the United States to GEORGE WASHINGTON, and for carrying into effect the resolution of Congress of the 24th day of December, 1799, to commemorate the great events of his military and political life, there shall be and hereby is appropriated a sum not exceeding ---- thousand dollars, to be paid out of any moneys in the Treasury of the United States, not otherwise appropriated. "_And be it further enacted_, That ---- ---- shall be and hereby are, empowered, to fix on a plan and make all contracts and engagements for payment of moneys, not exceeding in the whole the aforesaid sum of ---- dollars; and to adopt all other measures necessary and proper for the due execution of this act, as to them shall seem expedient." And it was agreed to divide the motion, and that the question be taken on striking out, which passed in the affirmative--yeas 16, nays 12, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Cocke, Dayton, T. Foster, D. Foster, Franklin, Hillhouse, Langdon, Marshall, S. T. Mason, Nicholas, and Schureman. NAYS.--Messrs. Chipman, Greene, Hindman, Howard, Latimer, Livermore, J. Mason, Morris, Paine, Read, Tracy, and Wells. MONDAY, January 26. The Senate resumed the second reading of the bill for erecting a mausoleum for GEORGE WASHINGTON; and having agreed to the amendment reported by the committee, and filled up one of the blanks, _Ordered_, That this bill pass to third reading as amended. WEDNESDAY, February 4. _Mausoleum for Washington._ The Senate took into consideration the amendment reported by the committee, on the bill for erecting a mausoleum for GEORGE WASHINGTON; which was agreed to. And on the final passage of the bill as amended, the question was determined in the affirmative--yeas 20, nays 9, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Chipman, Dayton, T. Foster, Dwight Foster, Franklin, Greene, Hillhouse, Howard, Langdon, Livermore, Marshall, S. T. Mason, Nicholas, Paine, and Schureman. NAYS.--Messrs. Bingham, Cocke, Gunn, Hindman, Latimer, J. Mason, Morris, Read, and Ross. So it was _Resolved_, That this bill pass with amendments. MONDAY, February 9. _Counting Votes for President of the United States._ On motion, it was _Resolved_, That the Senate will be ready to receive the House of Representatives in the Senate Chamber on Wednesday next, at twelve o'clock, for the purpose of being present at the opening and counting the votes for PRESIDENT OF THE UNITED STATES. That one person be appointed a teller on the part of the Senate, to make a list of the votes for PRESIDENT OF THE UNITED STATES, as they shall be declared: that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, which shall be entered on the journals, and if it shall appear that a choice has been made, agreeably to the constitution, such entry on the journals shall be deemed a sufficient declaration thereof. _Ordered_, That the Secretary notify the House of Representatives of this resolution. TUESDAY, February 10. On motion that when the two Houses shall proceed to opening and counting the votes for PRESIDENT OF THE UNITED STATES, no person shall be admitted into the gallery, it passed in the affirmative--yeas 16, nays 10, as follows: YEAS.--Messrs. Brown, Chipman, Dayton, T. Foster, Dwight Foster, Hillhouse, Hindman, Latimer, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Langdon, Livermore, Marshall, S. T. Mason, and Nicholas. A message was received from the House of Representatives informing the Senate that they have passed a resolution, which the Clerk was directed to bring to the Senate. The resolution was read, as follows: "_Resolved_, That this House will attend in the Chamber of the Senate on Wednesday next, at 12 o'clock, for the purpose of being present at the opening and counting of the votes for PRESIDENT and VICE PRESIDENT OF THE UNITED STATES; that Messrs. RUTLEDGE and NICHOLAS be appointed tellers, to act jointly with the teller appointed on the part of the Senate, to make a list of the votes for PRESIDENT and VICE PRESIDENT OF THE UNITED STATES, as they shall be declared; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, which shall be entered on the journals, and if it shall appear that a choice has been made, agreeably to the constitution, such entry on the journals shall be deemed a sufficient declaration thereof." _Ordered_, That Mr. WELLS be a teller on the part of the Senate for the purpose expressed in the above resolution. WEDNESDAY, February 11. _Ordered_, That the Secretary notify the House of Representatives that the Senate is ready to meet them in the Senate Chamber, for the purpose of being present at the opening and counting the votes for PRESIDENT OF THE UNITED STATES. The two Houses of Congress accordingly assembled in the Senate Chamber, and the certificates of the Electors of sixteen States were, by the VICE PRESIDENT, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the VICE PRESIDENT, which was read. (_For List see Table on next page._) Whereupon the VICE PRESIDENT declared that the result of the votes, as delivered by the tellers, was that THOMAS JEFFERSON, of Va., had 73 AARON BURR, of N. Y., had 73 JOHN ADAMS, of Mass., had 65 CHAS. C. PINCKNEY, of S. C., had 64 JOHN JAY, of N. Y., had 1 ---------------+---------+---------+---------+----------+---------+ STATES. |Thomas | Aaron | John |Charles C.| John | |Jefferson| Burr | Adams |Pinckney | Jay. | ---------------+---------+---------+---------+----------+---------+ New Hampshire | - | - | 6 | 6 | | Massachusetts | - | - | 16 | 16 | | Rhode Island | - | - | 4 | 3 | 1 | Connecticut | - | - | 9 | 9 | | Vermont | - | - | 4 | 4 | | New York | 12 | 12 | | | | New Jersey | - | - | 7 | 7 | | Pennsylvania | 8 | 8 | 7 | 7 | | Delaware | - | - | 3 | 3 | | Maryland | 5 | 5 | 5 | 5 | | Virginia | 21 | 21 | | | | Kentucky | 4 | 4 | | | | North Carolina | 8 | 8 | 4 | 4 | | Tennessee | 3 | 3 | | | | South Carolina | 8 | 8 | | | | Georgia | 4 | 4 | | | | | -- | -- | -- | -- | -- | | 73 | 73 | 65 | 64 | 1 | ---------------+---------+---------+---------+----------+---------+ The whole number of Electors who had voted were one hundred and thirty-eight, of which number THOMAS JEFFERSON and AARON BURR had a majority; but the number of those voting for them being equal, no choice was made by the people; and that, consequently, the remaining duties devolve on the House of Representatives. On which, the House of Representatives repaired to their own Chamber; and the Senate adjourned. MONDAY, February 16. _Public Property._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and Gentlemen of the House of Representatives_: I wish to know the pleasure of Congress, and request their direction, concerning the disposition of the property of the United States now in my possession; whether I shall deliver it into the hands of the Heads of Departments, or of the Commissioners of the city of Washington, or of a committee of Congress, or to any other persons Congress may appoint, to be delivered into the hands of my successor, or whether I shall present it myself to the PRESIDENT OF THE UNITED STATES on the 4th of March next. Any of these modes will be agreeable to me. JOHN ADAMS. UNITED STATES, _Feb_. 16, 1801. The Message was read and ordered to lie on the table. The VICE PRESIDENT communicated a letter from JAMES SCHUREMAN, a Senator from the State of New Jersey, resigning his seat; which was read. _Resolved_, That the VICE PRESIDENT be requested to notify the Executive of the State of New Jersey that JAMES SCHUREMAN hath resigned his seat in the Senate. WEDNESDAY, February 18. A message from the House of Representatives informed the Senate that the House have chosen THOMAS JEFFERSON, of Virginia, President of the United States, for the term commencing on the 4th of March next. On motion, it was _Resolved_, That a committee be appointed, to join such committee as may be appointed on the part of the House of Representatives, to consider whether any, and, if any, what measures ought to be adopted for the further accommodation of the PRESIDENT OF THE UNITED STATES, for the term commencing the 4th day of March next, to report by bill, bills, or otherwise; and that Messrs. NICHOLAS, TRACY, and BALDWIN, be the committee on the part of the Senate. _Notification of Election to Aaron Burr._ On motion, it was _Resolved_, That the PRESIDENT OF THE UNITED STATES be requested to cause to be transmitted to AARON BURR, Esq., of New York, Vice President elect of the United States, notification of his election to that office, and that the President of the Senate do make out and sign a certificate, in the words following, viz: "BE IT KNOWN, That the Senate and House of Representatives of the United States of America, being convened at the city of Washington, on the second Wednesday in February, A. D. 1801, the underwritten Vice President of the United States and President of the Senate, did, in presence of said Senate and House of Representatives, open all the certificates and count all the votes of the electors for a President; whereupon it appeared that THOMAS JEFFERSON, of Virginia, and AARON BURR, of New York, had a majority of the votes of the electors and an equal number of votes; in consequence of which the House of Representatives proceeded to the choice of a President, and have this day notified to the Senate that THOMAS JEFFERSON has by them been duly chosen President: by all of which it appears that AARON BURR, Esq., of New York, is duly elected, agreeably to the constitution, Vice President of the United States of America. "In witness thereof I have hereunto set my hand and seal, this 18th day of February, 1801. "THOMAS JEFFERSON." And that the President of the Senate do cause the certificate aforesaid to be laid before the PRESIDENT OF THE UNITED STATES, with this resolution. MONDAY, February 23. Mr. PINCKNEY, a Senator for the State of South Carolina, attended. THURSDAY, February 26. The bill to prohibit the Secretary of the Navy from carrying on any business of trade, commerce, or navigation, was read the second time, and referred to Messrs. LANGDON, NICHOLAS, and DAYTON, to consider and report thereon. SATURDAY, February 28. _Retiring of the Vice President._ The VICE PRESIDENT addressed the Senate as follows: _Gentlemen of the Senate_: To give the usual opportunity of appointing a President, _pro tempore_, I now propose to retire from the chair of the Senate; and, as the time is near at hand when the relations will cease which have for some time subsisted between this honorable House and myself, I beg leave, before I withdraw, to return them my grateful thanks for all the instances of attention and respect with which they have been pleased to honor me. In the discharge of my functions here, it has been my conscientious endeavor to observe impartial justice, without regard to persons or subjects; and if I have failed of impressing this on the mind of the Senate, it will be to me a circumstance of the deepest regret. I may have erred at times--no doubt I have erred--this is the law of human nature. For honest errors, however, indulgence may be hoped. I owe to truth and justice, at the same time, to declare, that the habits of order and decorum, which so strongly characterize the proceedings of the Senate, have rendered the umpirage of their President an office of little difficulty; that, in times and on questions which have severely tried the sensibilities of the House, calm and temperate discussion has rarely been disturbed by departures from order. Should the support which I have received from the Senate, in the performance of my duties here, attend me into the new station to which the public will has transferred me, I shall consider it as commencing under the happiest auspices. With these expressions of my dutiful regard to the Senate as a body, I ask leave to mingle my particular wishes for the health and happiness of the individuals who compose it, and to tender them my cordial and respectful adieu. After which the VICE PRESIDENT retired. Whereupon the Senate proceeded to the election of a President _pro tempore_, as the constitution provides; and JAMES HILLHOUSE was duly elected. _Ordered_, That the Address of the VICE PRESIDENT, made this day, taking leave of the Senate, be referred to a committee, with instruction to prepare and report the draft of an Address in answer thereto; and that Messrs. MORRIS, J. MASON, and DAYTON, be the committee. MONDAY, March 2. _Answer to the Vice President's Valedictory._ Mr. MORRIS, from the committee appointed the 28th ultimo, on the Address of the VICE PRESIDENT, made, on his taking leave of the Senate, reported an answer thereto, which was read, as follows: SIR: While we congratulate you on those expressions of the public will, which called you to the first office in the United States, we cannot but lament the loss of that intelligence, attention, and impartiality, with which you have presided over our deliberations. The Senate feel themselves much gratified by the sense you have been pleased to express of their support in the performance of your late duties. Be persuaded that it will never be withheld from a Chief Magistrate, who, in the exercise of his office, shall be influenced by a due regard to the honor and interests of our country. In the confidence that your official conduct will be directed to these great objects, a confidence derived from past events, we repeat to you, sir, the assurance of our constitutional support in your future administration. On the motion to strike out these words: "a confidence derived from past events," it passed in the negative--yeas 9, nays 19, as follows: YEAS.--Messrs. Chipman, Hindman, Howard, Livermore, Paine, Read, Ross, Tracy, and Wells. NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Cocke, Dayton, T. Foster, D. Foster, Franklin, Greene, Gunn, Hillhouse, Marshall, S. T. Mason, J. Mason, Morris, Nicholas, and Pinckney. And the report was agreed to. _Ordered_, That the committee who drafted the answer to the Address, wait on the President elect of the United States, and present it to him. The PRESIDENT laid before the Senate a letter from the President elect of the United States; which was read, as follows: WASHINGTON, _March 2, 1801_. SIR: I beg leave, through you, to inform the honorable the Senate of the United States, that I propose to take the oath which the constitution prescribes to the President of the United States, before he enters on the execution of his office, on Wednesday, the 4th instant, at 12 o'clock, in the Senate Chamber. I have the honor to be, with the greatest respect, sir, your most obedient and most humble servant, TH. JEFFERSON. The PRESIDENT _pro tempore of the Senate_. _Ordered_, That the foregoing letter be referred to Messrs. MORRIS, DAYTON, and ROSS, to report thereon. _Ordered_, That the committee who were appointed to take into consideration the letter from the President elect of the United States, of this day, be discharged. A motion was made as follows: The President elect of the United States having informed the Senate that he proposes to take the oath which the constitution prescribes to the President of the United States before he enters on the execution of his office, on Wednesday, the 4th instant, at 12 o'clock, in the Senate Chamber: _Ordered_, That the Secretary communicate that information to the House of Representatives; that seats be provided for such members of the House of Representatives and such of the public Ministers as may think proper to attend; and that the gallery be opened to the citizens of the United States. And the motion was agreed to. TUESDAY, March 3. _Mausoleum for Washington._ The Senate took into consideration the amendments to the amendments on the bill to erect a mausoleum for GEORGE WASHINGTON; and on motion to postpone the further consideration of this bill until the first Monday in December next, it passed in the affirmative--yeas 14, nays 13, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Brown, Cocke, Gunn, Hindman, J. Mason, Morris, Pinckney, Read, Ross, Tracy, and Wells. NAYS.--Messrs. Bloodworth, Chipman, Dayton, T. Foster, Franklin, Greene, Hillhouse, Howard, Langdon, Livermore, Marshall, Nicholas, and Paine. The bill to prohibit the Secretary of the Navy from being concerned in trade or commerce, was read the third time and passed. Mr. NICHOLAS, from the committee on the bill providing for a Naval Peace Establishment, reported amendments, which, being agreed to, the bill was read the third time by unanimous consent, and passed. Mr. MORRIS, from the committee appointed to wait on the President elect of the United States, and present him with the answer of the Senate to his Address on taking leave, communicated his reply, which was read as follows: GENTLEMEN: I receive with due sensibility the congratulations of the Senate on being called to the first Executive office of our Government; and I accept, with great satisfaction, their assurances of support in whatever regards the honor and interest of our country. Knowing no other object in the discharge of my public duties, their confidence in my future conduct, derived from past events, shall not be disappointed, so far as my judgment may enable me to discern those objects. The approbation they are so good as to express of my conduct in the chair of the Senate, is highly gratifying to me; and I pray them to accept my humble thanks for these declarations of it. TH. JEFFERSON. MARCH, 3, 1801. TUESDAY EVENING, 6 o'clock. AARON OGDEN, appointed a Senator by the Legislature of the State of New Jersey, in place of James Schureman, resigned, produced his credentials, was qualified, and took his seat in the Senate. _Adjournment._ A message from the House of Representatives informed the Senate that the House concur in the resolution of the Senate appointing a joint committee to wait on the PRESIDENT OF THE UNITED STATES, and notify him of the proposed adjournment of the two Houses of Congress, and have appointed a committee on their part. And that the House of Representatives, having completed the business before them, are about to adjourn without day. Mr. READ reported, from the joint committee, that they had waited on the PRESIDENT OF THE UNITED STATES and that he replied, that he had nothing further to communicate to Congress, except his best wishes for the health and happiness of its members respectively. The Senate then adjourned without day. SPECIAL SESSION. WEDNESDAY, March 4, 1801. _To the Senators of the United States, respectively_: SIR: It appearing to me proper and necessary for the public service, that the Senate of the United States should be convened on Wednesday the 4th of March next, you are desired to attend in the Chamber of the Senate on that day, at 10 o'clock in the forenoon, to receive and act upon any communications which the President of the United States may then lay before you touching their interests, and to do and consider all other things which may be proper and necessary for the public service, for the Senate to do and consider. JOHN ADAMS, _President of the United States_. JANUARY 30, 1801. In conformity to the summons from the PRESIDENT OF THE UNITED STATES above recited, the Senate assembled in their Chamber. PRESENT: AARON BURR, Vice President of the United States, and President of the Senate. SAMUEL LIVERMORE, and JAMES SHEAFE, from New Hampshire. DWIGHT FOSTER, and JONATHAN MASON, from Massachusetts. THEODORE FOSTER and RAY GREENE, from Rhode Island. URIAH TRACY and JAMES HILLHOUSE, from Connecticut. NATHANIEL CHIPMAN, from Vermont. GOUVERNEUR MORRIS and JOHN ARMSTRONG, from New York. JONATHAN DAYTON and AARON OGDEN, from New Jersey. JAMES ROSS and PETER MUHLENBERG, from Pennsylvania. WILLIAM HILL WELLS and SAMUEL WHITE, from Delaware. JOHN E. HOWARD, from Maryland. STEVENS T. MASON and WILSON CARY NICHOLAS, from Virginia. JOHN BROWN, from Kentucky. JESSE FRANKLIN and DAVID STONE, from North Carolina. JOSEPH ANDERSON and WILLIAM COCKE, from Tennessee. CHARLES PINCKNEY, from South Carolina. ABRAHAM BALDWIN, from Georgia. Mr. HILLHOUSE administered the oath of office to the VICE PRESIDENT, who took the chair, and the credentials of the following members were read: Of Mr. ARMSTRONG, Mr. MUHLENBERG, Mr. SHEAFE, Mr. STONE, Mr. TRACY, and Mr. WHITE. And the oath of office was administered to Mr. ARMSTRONG, Mr. MUHLENBERG, Mr. SHEAFE, Mr. STONE, and Mr. WHITE, by the VICE PRESIDENT. Exception being taken to the credentials of the Hon. Mr. TRACY, a Senator from the State of Connecticut, a debate ensued; and, on motion that he be admitted to take the oath required by the constitution, it passed in the affirmative--yeas 13, nays 10, as follows: YEAS.--Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, Livermore, J. Mason, Morris, Ogden, Ross, Sheafe, Wells, and White. NAYS.--Messrs. Anderson, Armstrong, Baldwin, Brown, Cocke, S. T. Mason, Muhlenberg, Nicholas, Pinckney, and Stone. And the oath was accordingly administered to Mr. TRACY by the VICE PRESIDENT. The PRESIDENT OF THE UNITED STATES, attended by the Heads of Departments, the Marshal of the District, his officers and other gentlemen, came into the Senate Chamber and took his seat in the chair usually occupied by the VICE PRESIDENT. The VICE PRESIDENT took a separate seat on the right of the PRESIDENT OF THE UNITED STATES, and the Chief Justice of the United States on the left. After a short pause, the PRESIDENT OF THE UNITED STATES rose, and addressed the audience as follows: _Friends and fellow-citizens_: Called upon to undertake the duties of the first Executive office of our country, I avail myself of the presence of that portion of my fellow-citizens which is here assembled, to express my grateful thanks for the favor with which they have been pleased to look towards me, to declare a sincere consciousness that the task is above my talents, and that I approach it with those anxious and awful presentiments which the greatness of the charge, and the weakness of my powers, so justly inspire. A rising nation spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye; when I contemplate these transcendent objects, and see the honor, the happiness, and the hopes, of this beloved country committed to the issue and the auspices of this day, I shrink from the contemplation, and humble myself before the magnitude of the undertaking. Utterly indeed should I despair, did not the presence of many whom I here see remind me, that, in the other high authorities provided by our constitution, I shall find resources of wisdom, of virtue, and of zeal, on which to rely under all difficulties. To you, then, gentlemen, who are charged with the sovereign functions of legislation, and to those associated with you, I look with encouragement for that guidance and support which may enable us to steer with safety the vessel in which we are all embarked, amidst the conflicting elements of a troubled world. During the contest of opinion through which we have passed, the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely, and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the constitution, all will of course arrange themselves under the will of the law, and unite in common efforts for the common good. All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Let us then, fellow-citizens, unite with one heart and one mind, let us restore to social intercourse that harmony and affection without which, liberty, and even life itself, are but dreary things. And let us reflect, that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little, if we countenance a political intolerance, as despotic, as wicked, and capable of as bitter and bloody persecutions. During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others; and should divide opinions as to measures of safety; but every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans: we are all Federalists. If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it. I know indeed that some honest men fear that a Republican Government cannot be strong; that this Government is not strong enough. But would the honest patriot, in the full tide of successful experiment, abandon a Government which has so far kept us free and firm, on the theoretic and visionary fear that this Government, the world's best hope, may, by possibility, want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. Sometimes it is said that man cannot be trusted with the government of himself. Can he then be trusted with the government of others? Or have we found angels in the form of kings to govern him? Let history answer this question. Let us then, with courage and confidence, pursue our own federal and republican principles; our attachment to union and representative government. Kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe; too high-minded to endure the degradations of the others; possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation; entertaining a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens, resulting not from birth, but from our actions and their sense of them; enlightened by a benign religion, professed indeed and practised in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man, acknowledging and adoring an overruling Providence, which, by all its dispensations, proves that it delights in the happiness of man here and his greater happiness hereafter; with all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens--a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government; and this is necessary to close the circle of our felicities. About to enter, fellow-citizens, on the exercise of duties which comprehend every thing dear and valuable to you, it is proper you should understand what I deem the essential principles of our Government, and consequently those which ought to shape its Administration. I will compress them within the narrowest compass they will bear, stating the general principle, but not all its limitations. Equal and exact justice to all men, of whatever state or persuasion, religious or political: peace, commerce, and honest friendship with all nations, entangling alliances with none: the support of the State Governments in all their rights, as the most competent administrations for our domestic concerns, and the surest bulwarks against anti-republican tendencies: the preservation of the General Government in its whole constitutional vigor, as the sheet-anchor of our peace at home, and safety abroad: a jealous care of the right of election by the people; a mild and safe corrective of abuses which are lopped by the sword of revolution, where peaceable remedies are unprovided: absolute acquiescence in the decisions of the majority, the vital principle of Republics, from which is no appeal but to force, the vital principle and immediate parent of despotism: a well-disciplined militia, our best reliance in peace, and for the first moments of war, till regulars may relieve them: the supremacy of the civil over the military authority--economy in the public expense, that labor may be lightly burdened: the honest payment of our debts, and sacred preservation of the public faith: encouragement of agriculture, and of commerce as its handmaid: the diffusion of information, and arraignment of all abuses at the bar of the public reason: freedom of religion, freedom of the press, and freedom of person, under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. The wisdom of our sages, and blood of our heroes, have been devoted to their attainment: they should be the creed of our political faith; the text of civic instruction; the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps, and to regain the road which alone leads to peace, liberty, and safety. I repair then, fellow-citizens, to the post you have assigned me. With experience enough in subordinate offices to have seen the difficulties of this, the greatest of all, I have learnt to expect that it will rarely fall to the lot of imperfect man to retire from this station with the reputation and the favor which bring him into it. Without pretensions to that high confidence you reposed in our first and greatest revolutionary character, whose pre-eminent services had entitled him to the first place in his country's love, and destined for him the fairest page in the volume of faithful history, I ask so much confidence only as may give firmness and effect to the legal administration of your affairs. I shall often go wrong through defect of judgment. When right, I shall often be thought wrong by those whose positions will not command a view of the whole ground. I ask your indulgence for my own errors, which will never be intentional; and your support against the errors of others, who may condemn what they would not, if seen in all its parts. The approbation implied by your suffrage is a great consolation to me for the past; and my future solicitude will be, to retain the good opinion of those who have bestowed it in advance, to conciliate that of others by doing them all the good in my power, and to be instrumental to the happiness and freedom of all. Relying then on the patronage of your good will, I advance with obedience to the work, ready to retire from it whenever you become sensible how much better choices it is in your power to make. And may that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity. The oath of office was then administered to him by the Chief Justice of the United States. After which the PRESIDENT OF THE UNITED STATES retired. The Senate then adjourned till to-morrow. THURSDAY, March 5. WILLIAM HINDMAN, appointed a Senator by the State of Maryland, produced his credentials, and the oath of office was administered to him by the VICE PRESIDENT. _Ordered_, That Messrs. NICHOLAS and BALDWIN be a committee to wait on the PRESIDENT OF THE UNITED STATES and notify him that the Senate is assembled and ready to receive any communications which he may be pleased to make to them. The VICE PRESIDENT communicated a letter from RAY GREENE, a Senator from the State of Rhode Island, resigning his seat; which was read. _Resolved_, That the VICE PRESIDENT be requested to notify to the Executive of the State of Rhode Island, that RAY GREENE hath resigned his seat in the Senate. Mr. NICHOLAS reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES and that he had informed the committee that he would immediately lay a Message before the Senate. The Message was received, containing nominations to fill Executive offices; which, after being considered, _Ordered_, That Messrs. NICHOLAS and BALDWIN be a committee to wait on the PRESIDENT OF THE UNITED STATES, and notify him, that, unless he has any further communication to make, the Senate are ready to adjourn. Mr. NICHOLAS reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he had informed them that he had no further communications to make to the Senate. Whereupon, the VICE PRESIDENT adjourned the Senate without day. PROCEEDINGS IN THE SENATE, IN SECRET SESSION, WHICH TOOK PLACE ON THE RATIFICATION OF THE CONVENTION WITH THE FRENCH REPUBLIC TUESDAY, December 16, 1800. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: I transmit to the Senate, for their consideration and decision, a convention, both in English and French, between the United States of America and the French Republic, signed at Paris, on the thirtieth day of September last, by the respective Plenipotentiaries of the two Powers. I also transmit to the Senate, three manuscript volumes, containing the journal of our Envoys. JOHN ADAMS. UNITED STATES, _Dec. 15, 1800_. The Message and convention were read; and after progress in reading the other papers accompanying the Message, _Ordered_, That the further reading thereof be postponed. FRIDAY, December 19. The Senate proceeded to consider the motion, made yesterday, that the PRESIDENT OF THE UNITED STATES be requested to lay before the Senate the instructions given to our late Commissioners to the French Republic; which, being amended, was adopted, as follows: _Resolved_, That the PRESIDENT OF THE UNITED STATES be requested to lay before the Senate the instructions given to our late Envoys Extraordinary and Ministers Plenipotentiary to the French Republic. _Ordered_, That the Secretary lay this resolution before the PRESIDENT OF THE UNITED STATES. MONDAY, December 22. The following Message was received from the PRESIDENT OF THE UNITED STATES. _Gentlemen of the Senate_: In conformity with your request, in your resolution of the 19th of this month, I transmit you the instructions given to our late Envoys Extraordinary and Ministers Plenipotentiary to the French Republic. It is my request to the Senate that these instructions may be considered in strict confidence, and returned to me as soon as the Senate shall have made all the use of them they may judge necessary. JOHN ADAMS. UNITED STATES, _Dec. 22, 1800_. On motion, _Resolved_, That all confidential communications made by the PRESIDENT OF THE UNITED STATES to the Senate, shall be, by the members thereof, kept inviolably secret; and that all treaties which may hereafter be laid before the Senate, shall also be kept secret, until the Senate shall, by their resolution, take off the injunction of secrecy. THURSDAY, January 8, 1801. The Senate resumed the consideration of the convention made on behalf of the United States with the Republic of France. And the second article having been debated, a question was moved thereon, to wit: "Will the Senate advise and consent to the ratification of this article?" And the yeas and nays being taken, are as follows--yeas 11, nays 16: YEAS.--Messrs. Baldwin, Bloodworth, Brown, Cocke, T. Foster, Franklin, Greene, Langdon, S. T. Mason, Nicholas, and Paine. NAYS.--Messrs. Armstrong, Chipman, Dayton, D. Foster, Gunn, Hillhouse, Hindman, Howard, Latimer, Livermore, J. Mason, Morris, Read, Schureman, Tracy, and Wells. So it passed in the negative. And the third article being under consideration, a question was moved and put, "Will the Senate advise and consent to the ratification of this article?" And the yeas and nays being taken, are as follows--yeas 12, nays 15: YEAS.--Messrs. Armstrong, Baldwin, Bloodworth, Brown, Cocke, T. Foster, Franklin, Greene, Gunn, Langdon, S. T. Mason, and Nicholas. NAYS.--Messrs. Chipman, Dayton, D. Foster, Hillhouse, Hindman, Howard, Latimer, Livermore, J. Mason, Morris, Paine, Read, Schureman, Tracy, and Wells. So it passed in the negative. The Senate proceeded in the consideration of the convention, so far as the fourteenth article; and, after debate, _Ordered_, That the further consideration thereof be postponed. FRIDAY, January 9. The Senate resumed the consideration of the convention made on behalf of the United States with the Republic of France. On motion, to advise and consent to the adoption of an additional article, to wit: "It is further agreed, between the said contracting parties, that nothing in this treaty contained, shall be construed or operate contrary to former and existing treaties with other States or sovereigns." And, on the question, "Will the Senate advise and consent to the adoption of this article?" it passed unanimously in the affirmative--yeas 27, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Chipman, Cocke, Dayton, D. Foster, Franklin, Greene, Gunn, Hillhouse, Hindman, Howard, Langdon, Latimer, Livermore, S. T. Mason, J. Mason, Morris, Nicholas, Paine, Read, Schureman, Tracy, and Wells. On motion, to advise and consent to the adoption of the following additional article, to wit: "The present convention shall be in full force during the term of ---- years, to be computed from the time of the exchange of the ratifications." And, after debate, _Ordered_, That the further consideration thereof be postponed. MONDAY, January 12. The Senate resumed the consideration of the convention made on behalf of the United States with the Republic of France; and The motion made on the 9th instant, being amended as follows: The present convention shall be in full force until two years, to be computed from the day of the signature of the preliminary or other articles of peace, which shall conclude the war in which the French nation is now engaged, or for a term not exceeding ---- years, to be computed from the time of the exchange of the ratifications, whichever event shall first happen. On the question, "Will the Senate advise and consent to the adoption of this article?" it was determined in the affirmative--yeas 25, nay 1, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bingham, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, D. Foster, Franklin, Greene, Hillhouse, Hindman, Howard, Latimer, Livermore, Morris, Nicholas, Paine, Read, Schureman, Tracy, and Wells. NAY.--Mr. Langdon. THURSDAY, January 15. The Senate resumed the consideration of the convention made on behalf of the United States with the Republic of France: Whereupon, The VICE PRESIDENT reported to the House, that the Senate, as in a Committee of the Whole, had had under their consideration the convention, and had gone through the same, and had agreed to sundry modifications, which he proceeded to state to the House, and again to put questions thereon, severally, for confirmation, as follows: On the question, whether the Senate would advise and consent to the ratification of the second article of the convention? it passed in the negative--yeas 10, nays 15, as follows: YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Cocke, T. Foster, Franklin, Langdon, Marshall, Nicholas, and Paine. NAYS.--Messrs. Bingham, Chipman, Dayton, D. Foster, Hillhouse, Howard, Latimer, Livermore, J. Mason, Morris, Read, Ross, Schureman, Tracy, and Wells. On the question whether the Senate would advise and consent to the ratification of the third article of the convention? a motion was made to amend the article, by adding to the end thereof, these words, "or paid for." Whereupon, A motion was made to amend the amendment by adding thereto the following words: "And so likewise, the merchant ships and vessels which have been taken, and definitively condemned on the one part and the other, shall be restored or paid for." On the question to agree to the amendment to the amendment, it passed in the negative--yeas 8, nays 20, as follows: YEAS.--Messrs. D. Foster, Hillhouse, Howard, Latimer, Livermore, Read, Tracy, and Wells. NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bingham, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, Franklin, Langdon, Marshall, S. T. Mason, J. Mason, Morris, Nicholas, Paine, Ross, and Schureman. So the amendment to the amendment was lost. On the question to agree to the original amendment, to wit: to add the words "or paid for;" it passed in the negative--yeas 7, nays 21, as follows: YEAS.--Messrs. Anderson, Armstrong, Brown, Baldwin, Cocke, S. T. Mason, and Nicholas. NAYS.--Messrs. Bingham, Bloodworth, Chipman, Dayton, T. Foster, D. Foster, Franklin, Hillhouse, Howard, Langdon, Latimer, Livermore, Marshall, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. So the amendment was lost. On the question, whether the Senate would advise and consent to the ratification of the third article? it passed in the negative--yeas 13, nays 16, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Cocke, T. Foster, Franklin, Greene, Langdon, Marshall, S. T. Mason, and Nicholas. NAYS.--Messrs. Bingham, Chipman, Dayton, D. Foster, Hillhouse, Howard, Latimer, Livermore, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. On the question, whether the Senate would advise and consent to the adoption of the first additional article, agreed to as in Committee of the Whole, on the 9th instant? it passed unanimously in the affirmative--yeas 28, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bingham, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, D. Foster, Franklin, Greene, Hillhouse, Howard, Langdon, Latimer, Livermore, S. T. Mason, J. Mason, Morris, Nicholas, Paine, Read, Ross, Schureman, Tracy, and Wells. On motion to fill the blank in the second additional article, agreed to as in Committee of the Whole, with the words, "ten years;" it passed in the negative--yeas 9, nays 19, as follows: YEAS.--Messrs. Baldwin, Bloodworth, Brown, Cocke, T. Foster, Franklin, Langdon, S. T. Mason, and Nicholas. NAYS.--Messrs. Anderson, Armstrong, Bingham, Chipman, Dayton, D. Foster, Greene, Hillhouse, Howard, Latimer, Livermore, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. On motion to fill the blank with the words "eight years," it passed unanimously in the affirmative--yeas 28, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bingham, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, D. Foster, Franklin, Greene, Hillhouse, Howard, Langdon, Latimer, Livermore, S. T. Mason, J. Mason, Morris, Nicholas, Paine, Read, Ross, Schureman, Tracy, and Wells. On motion to amend the second additional article agreed to as in Committee of the Whole, by striking out these words, "until two years, to be computed from the day of the signature of the preliminary or other articles of peace, which shall conclude the war in which the French nation is now engaged." And, on the question, "Shall these words stand?" it passed in the negative--yeas 4, nays 23, as follows: YEAS.--Messrs. Livermore, Paine, Read, and Tracy. NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, D. Foster, Franklin, Greene, Hillhouse, Howard, Langdon, Latimer, Marshall, S. T. Mason, J. Mason, Morris, Nicholas, Schureman, and Wells. And the article having been further amended, by unanimous consent, to read as follows: "The present convention shall be in full force for the term of eight years, to be computed from the time of the exchange of the ratifications." On the question, whether the Senate would advise and consent to the said additional article, as amended? it passed in the affirmative--yeas 26, nay 1, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, D. Foster, Franklin, Greene, Hillhouse, Howard, Langdon, Latimer, Marshall, S. T. Mason, J. Mason, Morris, Nicholas, Paine, Read, Schureman, Tracy, and Wells. NAY.--Mr. Livermore. _Ordered_, That Mr. MORRIS, Mr. NICHOLAS, and Mr. DAYTON, be a committee to reduce the several votes on this treaty into the form of a ratification. WEDNESDAY, January 21. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: In compliance with your request, signified in your resolution of the twentieth day of this month, I transmit you a report, made to me by the Secretary of State, on the same day; a letter of our late Envoys to him on the 4th of October last; an extract of a letter from our Minister Plenipotentiary in London, to him, of the 22d of November last; and an extract of another letter from the Minister to the Secretary, of the 31st of October last. The reasoning in the letter of our late Envoys to France is so fully supported by the writers on the law of nations, particularly by Vattel, as well as by his great masters, Grotius and Puffendorf, that nothing is left to be desired to settle the point, that if there be a collision between two treaties, made with two different powers, the more ancient has the advantage; for no engagement contrary to it can be entered into in the treaty afterwards made; and if this last be found, in any case, incompatible with the more ancient one, its execution is considered as impossible, because the person promising had not the power of acting contrary to his antecedent engagement. Although our right is very clear to negotiate treaties according to our own ideas of right and justice, honor and good faith, yet it must always be a satisfaction to know that the judgment of other nations with whom we have connection, coincides with ours, and that we have no reason to apprehend that any disagreeable questions and discussions are likely to arise. The letters from Mr. King will, therefore, be read by the Senate, with particular satisfaction. The inconveniences to public officers and the mischiefs to the public, arising from the publication of the despatches of Ministers abroad, are so numerous, and so obvious, that I request of the Senate that these papers, especially the letters from Mr. King, be considered in close confidence. JOHN ADAMS. UNITED STATES, _Jan. 21, 1801_. The Message and papers were read, and ordered to lie for consideration. The Senate resumed the consideration of the report of the committee appointed to reduce the several votes on the convention made on behalf of the United States with the Republic of France, into the form of a ratification, together with the motion made yesterday thereon, to wit: to amend the proviso, by inserting after the word "third," the words "and nineteenth." And, on the question, to agree to the insertion of the words, it was determined in the negative--yeas 6, nays 22, as follows: YEAS.--Messrs. Bingham, Hillhouse, Read, Ross, Tracy, and Wells. NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, D. Foster, Franklin, Greene, Howard, Langdon, Latimer, Livermore, S. T. Mason, J. Mason, Morris, Nicholas, Paine, and Schureman. _Ordered_, That the further consideration of the convention, and the report of the committee thereon, be postponed until Friday next. FRIDAY, January 23. The Senate resumed the consideration of the report of the committee appointed to reduce the several votes on the convention made on behalf of the United States with the Republic of France, into the form of a ratification, which report is as follows: _Resolved by the Senate of the United States_, (two-thirds of the Senators present concurring therein,) That they do consent to and advise the ratification of the convention between the French Republic and the United States of America, made at Paris the eighth day of Vendemaire, of the ninth year of the French Republic, the thirtieth day of September, anno Domini eighteen hundred: _Provided_, The second and third articles be expunged, and that the following articles be added or inserted: 1st. It is understood that nothing in this convention shall be so construed as to operate contrary to any former and existing treaties between either of the parties and any other State or Sovereign. 2d. It is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of the ratifications. Whereupon a motion was made to strike out the whole of the proviso; on which it was agreed to divide the question into four parts, viz: 1st. Whether so much as provides that the second article shall be expunged, shall stand? 2d. Whether so much as provides that the third article be expunged, shall stand? 3d. Whether that part shall stand which restrains it from operating against former treaties? 4th. Whether that part shall stand which provides a limitation of time to its duration? And, on the question on the first division, to wit: Whether so much as provides that the second article shall be expunged, shall stand? it passed in the negative, two-thirds of the Senators present not agreeing thereto--yeas 17, nays 13, as follows: YEAS.--Messrs. Armstrong, Bingham, Chipman, Dayton, D. Foster, Hillhouse, Hindman, Howard, Latimer, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, T. Foster, Franklin, Greene, Langdon, Livermore, Marshall, S. T. Mason, and Nicholas. And on the question on the second division, to wit: Whether so much as provides that the third article shall be expunged, shall stand? it passed in the negative, two-thirds of the Senators present not agreeing thereto--yeas 16, nays 17, as follows: YEAS.--Messrs. Bingham, Chipman, Dayton, D. Foster, Hillhouse, Hindman, Howard, Latimer, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Cocke, T. Foster, Franklin, Greene, Langdon, Livermore, Marshall, S. T. Mason, and Nicholas. And, on the question on the third division, to wit: Whether that part shall stand which restrains it from operating against former treaties? it passed in the negative, two-thirds of the Senators present not agreeing thereto--yeas 17, nays 13, as follows: YEAS.--Messrs. Bingham, Chipman, Dayton, D. Foster, Greene, Hillhouse, Hindman, Howard, Latimer, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Cocke, T. Foster, Franklin, Langdon, Livermore, Marshall, S. T. Mason, and Nicholas. And, on the question on the fourth division, to wit: Whether that part shall stand which provides a limitation of time to its duration? it was determined in the affirmative--yeas 24, nays 6, as follows: YEAS.--Messrs. Anderson, Armstrong, Bingham, Bloodworth, Chipman, Cocke, Dayton, D. Foster, Franklin, Greene, Hillhouse, Hindman, Howard, Langdon, Latimer, Livermore, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Baldwin, Brown, T. Foster, Marshall, S. T. Mason, and Nicholas. And, on the question to agree to the report of the committee, as amended, it was determined in the negative, two-thirds of the Senators present not agreeing thereto--yeas 16, nays 14, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Chipman, Cocke, T. Foster, Franklin, Greene, Langdon, Livermore, Marshall, S. T. Mason, Nicholas, and Paine. NAYS.--Messrs. Bingham, Dayton, D. Foster, Hillhouse, Hindman, Howard, Latimer, J. Mason, Morris, Read, Ross, Schureman, Tracy, and Wells. TUESDAY, February 3. On motion, it was agreed to reconsider the vote passed the 23d of January, on the report of the committee appointed to reduce the several votes on the convention made on behalf of the United States with the French Republic, into the form of a ratification. On motion, it was agreed to reconsider the first division of the report, to wit: "Whether so much as provides that the second article shall be expunged, shall stand?" And, on the question to agree to this part of the report, it passed in the affirmative--yeas 30, nay 1, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bingham, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, D. Foster, Franklin, Greene, Gunn, Hillhouse, Hindman, Howard, Langdon, Latimer, Livermore, S. T. Mason, J. Mason, Morris, Nicholas, Paine, Read, Ross, Schureman, Tracy, and Wells. NAY.--Mr. Marshall. On motion, it was agreed to reconsider the vote of the 23d of January, on the second division of the report, to wit: "Whether so much as provides that the third article shall be expunged, shall stand?" And, on the question to agree thereto, it passed in the negative, two-thirds of the Senators present not agreeing thereto--yeas 18, nays 13, as follows: YEAS.--Messrs. Bingham, Chipman, Dayton, D. Foster, Greene, Hillhouse, Hindman, Howard, Latimer, Livermore, J. Mason, Morris, Paine, Read, Ross, Schureman, Tracy, and Wells. NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Cocke, T. Foster, Franklin, Gunn, Langdon, Marshall, S. T. Mason, and Nicholas. On the question to agree to the ratification, as follows: _Resolved by the Senate of the United States_, (two-thirds of the Senators present concurring therein,) That they do consent to, and advise the ratification of the convention between the French Republic and the United States of America, made at Paris, the eighth day of Vendemaire, of the ninth year of the French Republic, the thirtieth day of September, anno Domini, eighteen hundred: _Provided_, The second article be expunged, and that the following article be added or inserted: It is agreed, that the present convention shall be in force for the term of eight years, from the time of the exchange of the ratifications. It passed in the affirmative--yeas 22, nays 9, as follows: YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bloodworth, Brown, Chipman, Cocke, Dayton, T. Foster, Franklin, Greene, Gunn, Hindman, Howard, Langdon, Latimer, Livermore, Marshall, S. T. Mason, Nicholas, Paine, and Schureman. NAYS.--Messrs. Bingham, D. Foster, Hillhouse, J. Mason, Morris, Read, Ross, Tracy, and Wells. _Ordered_, That the Secretary lay this resolution before the PRESIDENT OF THE UNITED STATES. FRIDAY, February 20. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: I request of the Senate, that the letter and journal of our late Envoys to France, and the copy of their instructions, and other documents relative to that negotiation, may be returned to me, or to the office of State. JOHN ADAMS. UNITED STATES, _Feb. 20, 1801_. The Message was read: Whereupon, _Ordered_, That the papers specified in the Message of the PRESIDENT OF THE UNITED STATES, of this day, be returned to him. SIXTH CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, November 17, 1800. This being the day appointed by law for the commencement of the second session of the sixth Congress, the following members of the House of Representatives appeared, and took their seats in the House, to wit: _From New Hampshire._--ABIEL FOSTER, and JONATHAN FREEMAN. _From Massachusetts._--WILLIAM SHEPARD, JNO. READ, JOSEPH B. VARNUM, THEODORE SEDGWICK, (_Speaker_,) PELEG WADSWORTH, SILAS LEE, and LEMUEL WILLIAMS. _From Connecticut._--JOHN DAVENPORT. _From New York._--JOHN SMITH, PHILIP VAN CORTLANDT, JONAS PLATT, HENRY GLEN, JOHN THOMPSON, and THEODORUS BAILEY. _From Pennsylvania._--MICHAEL LEIB, RICHARD THOMAS, JOSEPH HEISTER, ROBERT BROWN, PETER MUHLENBERG, HENRY WOODS, and JOHN SMILIE. _From Maryland._--GEORGE DENT, GEO. BAER, WILLIAM CRAIK, GABRIEL CHRISTIE, JOHN C. THOMAS, and JOSEPH H. NICHOLSON. _From Virginia._--LEVEN POWELL, JOHN NICHOLAS, ROBERT PAGE, JOHN DAWSON, ANTHONY NEW, GEORGE JACKSON, and DAVID HOLMES. _From North Carolina._--NATHANIEL MACON, RICHARD STANFORD, and WILLIS ALSTON. _From South Carolina._--THOMAS SUMTER, and BENJAMIN HUGER. _From Tennessee._--WILLIAM C. C. CLAIBORNE. A new member, to wit, JOHN C. SMITH, returned to serve as a member of this House, from the State of Connecticut, in the room of Jonathan Brace, who has resigned his seat, appeared and produced his credentials. The SPEAKER observed that it had heretofore been the invariable practice of the House to admit new members to take their seats previously to being sworn, though the constitution directed directly the reverse. As there was a new member present, he suggested the propriety of administering the oath to him before he took his seat. Mr. MACON thought such a step premature. He was of opinion that no inconvenience would arise from delaying to administer the oath until a House was formed, and he thought great caution should attend an innovation opposed to all precedent. Mr. NICHOLAS asked whether it had heretofore been usual, in the case of a new House, to swear the members before the choice of a Speaker? The SPEAKER replied that it had not. Mr. NICHOLAS said, that though, on first thought, he was favorable to administering the oath at the present time, yet this precedent inclined him to think such a step improper. The SPEAKER waived the question. The members present not being sufficient to form a quorum, the SPEAKER adjourned the body till to-morrow. TUESDAY, November 18. Several other members, to wit: from Connecticut, ELIZUR GOODRICH, WILLIAM EDMOND, and ROGER GRISWOLD; from New York, WILLIAM COOPER and LUCAS ELMENDORPH; from New Jersey, JAMES H. IMLAY and FRANKLIN DAVENPORT; from Pennsylvania, ROBERT WALN; from Maryland, SAMUEL SMITH; from Virginia, HENRY LEE, THOMAS EVANS, and JOHN TRIGG; from North Carolina, RICHARD DOBBS SPAIGHT, and JOSEPH DICKSON; and from Georgia, BENJAMIN TALIAFERRO, appeared and took their seats in the House. And a quorum, consisting of a majority of the whole number, being present, The oath to support the Constitution of the United States, as prescribed by the act, entitled "An act to regulate the time and manner of administering certain oaths," was administered by the SPEAKER to JOHN C. SMITH, a new member, who appeared and took his seat in the House yesterday. _Ordered_, That a message be sent to the Senate to inform them that a quorum of this House is assembled, and ready to proceed to business; and that the Clerk of this House do go with said message. WEDNESDAY, November 19. Several other members, to wit: from Vermont, LEWIS R. MORRIS, and from Virginia, JOSIAH PARKER and JOHN RANDOLPH, appeared, and took their seats in the House. THURSDAY, November 20. Two other members, to wit: from Virginia, ABRAM TRIGG, and from Pennsylvania, ANDREW GREGG, appeared, and took their seats in the House. FRIDAY, November 21. Several other members, to wit, from Massachusetts, GEORGE THATCHER; from New Jersey, JOHN CONDIT, AARON KITCHELL, and JAMES LINN; from Pennsylvania, JOHN A. HANNA; and from South Carolina, ROBERT GOODLOE HARPER, appeared, and took their seats in the House. A message from the Senate informed the House that a quorum of the Senate is assembled, and ready to proceed to business, and that, in the absence of the VICE PRESIDENT, they have elected the Hon. JOHN HOWARD, President of the Senate, _pro tempore_. _Resolved_, That Mr. GRISWOLD, Mr. SAMUEL SMITH, and Mr. CRAIK, be a committee, on the part of this House, jointly, with such committee as may be appointed on the part of the Senate, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications he may think proper to make to them. _Ordered_, That the Clerk of this House do acquaint the Senate therewith. A message from the Senate informed the House that the Senate have appointed a committee jointly, with the committee appointed by this House, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications he may think proper to make to them. Mr. GRISWOLD, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications he may think proper to make to them, reported that the committee had performed that service, and that the PRESIDENT signified to them he would make a communication to both Houses to-morrow at twelve o'clock, in the Senate Chamber. SATURDAY, November 22. Two other members, to wit: from North Carolina, ARCHIBALD HENDERSON; and from Virginia, EDWIN GRAY, appeared, and took their seats in the House. _President's Speech._ A message from the Senate informed the House that the Senate are now ready, in the Senate Chamber, to attend this House in receiving the communication from the PRESIDENT OF THE UNITED STATES, agreeably to his notification to both Houses yesterday. Mr. SPEAKER, attended by the members of this House, then withdrew to the Senate Chamber, for the purpose stated in the Senate's message; and, being returned, Mr. SPEAKER laid before the House a copy of the speech delivered by the PRESIDENT OF THE UNITED STATES to both Houses of Congress, in the Senate Chamber. [See Senate proceedings of this date, _ante_, page 482.] _Ordered_, That the said speech be committed to a Committee of the whole House immediately. The House, accordingly, resolved itself into the said committee; and, after some time spent therein, Mr. SPEAKER resumed the chair, and Mr. HARPER reported that the committee had had the said speech under consideration, and come to a resolution thereupon; which was twice read, and agreed to by the House, as follows: _Resolved_, That it is the opinion of this committee that a respectful address ought to be presented by the House of Representatives to the PRESIDENT OF THE UNITED STATES, in answer to his speech to both Houses of Congress, at the commencement of the present session, containing assurances that this House will duly attend to the important objects recommended by him to their consideration. _Ordered_, That Mr. GRISWOLD, Mr. MACON, Mr. CRAIK, Mr. HENDERSON, and Mr. NICHOLAS, be appointed a committee to prepare an address, pursuant to the said resolution. _Ordered_, That the Speech of the PRESIDENT OF THE UNITED STATES be committed to the Committee of the whole House on the state of the Union. And then the House adjourned. MONDAY, November 24. Several other members, to wit: from Massachusetts, HARRISON G. OTIS, and PHANUEL BISHOP; from Virginia, MATTHEW CLAY; and from North Carolina, DAVID STONE, appeared, and took their seats in the House. WILLIAM M'MILLAN, returned to serve as a Representative for the Territory of the United States north-west of the Ohio, in the room of William Henry Harrison, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House. TUESDAY, November 25. Another member, to wit, JOHN WILKES KITTERA, from Pennsylvania, appeared, was qualified, and took his seat in the House. A new member, to wit, NATHAN READ, returned to serve as a member of this House from the State of Massachusetts, in the room of Samuel Sewall, who has resigned his seat, appeared, produced his credentials, and took his seat in the House. WEDNESDAY, November 26. A new member, to wit, LYTTLETON W. TAZEWELL, returned to serve as a member of the House for the State of Virginia, in the room of John Marshall, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House. _Address to the President._ The House went into a Committee of the Whole on the reply to the PRESIDENT'S Speech, which was read by paragraphs, and reported to the House without any amendments, as follows: To JOHN ADAMS, _President of the United States_: SIR: The House of Representatives have received with great respect the communication which you have been pleased to make to the two Houses of Congress, at the commencement of the present session. The final establishment of the seat of National Government which has now taken place within the District of Columbia, is an event of no small importance in the political transactions of our country: and we cordially unite our wishes with yours, that this territory may be the residence of happiness and virtue. Nor can we, on this occasion, omit to express a hope, that the spirit which animated the great founder of this city, may descend to future generations, and that the wisdom, magnanimity, and steadiness, which marked the events of his public life, may be imitated in all succeeding ages. A consideration of those powers which have been vested in Congress over the District of Columbia will not escape our attention; nor shall we forget that, in exercising these powers, a regard must be had to those events which will necessarily attend the Capital of America. The cheerfulness and regularity with which the officers and soldiers of the temporary army have returned to the condition of private citizens, is a testimony clear and conclusive of the purity of those motives which induced them to engage in the public service; and will remain a proof, on all future occasions, that an army of soldiers drawn from the citizens of our country, deserve our confidence and respect. No subject can be more important than that of the Judiciary, which you have again recommended to our consideration, and it shall receive our early and deliberate attention. The Constitution of the United States having confided the management of our foreign negotiations to the control of the Executive power, we cheerfully submit to its decisions on this important subject. And in respect to the negotiations now pending with France, we sincerely hope that the final result may prove as fortunate to our country, as the most ardent mind can wish. So long as a predatory war is carried on against our commerce, we should sacrifice the interests and disappoint the expectations of our constituents, should we, for a moment, relax that system of maritime defence, which has resulted in such beneficial effects. At this period, it is confidently believed that few persons can be found within the United States, who do not admit that a Navy, well organized, must constitute the natural and efficient defence of this country against all foreign hostility. The progress which has been made in the manufacture of arms, leaves no doubt that the public patronage has already placed this country beyond all necessary dependence on foreign markets for an article so indispensable for defence; and gives us assurances that, under the encouragement which government will continue to extend to this important object, we shall soon rival foreign countries, not only in the number, but in the quality of arms completed from our own manufactories. Few events could have been more pleasing to our constituents, than that great and rapid increase of revenue which has arisen from permanent taxes. Whilst this event explains the great and increasing resources of our country, it carries along with it a proof which cannot be resisted, that those measures of maritime defence which were calculated to meet our enemy upon the ocean, and which have produced such extensive protection to our commerce, were founded in wisdom and policy. The mind must, in our opinion, be insensible to the plainest truths, which cannot discern the elevated ground on which this policy has placed our country. That national spirit, which alone could vindicate our common rights, has been roused, and those latent energies, which had not been fully known, were unfolded and brought into view, and our fellow-citizens were prepared to meet every event which national honor or national security could render necessary. Nor have its effects been much less important in other respects. Whilst many of the nations of the earth have been impoverished and depopulated by internal commotions and national contests, our internal peace has not been materially impaired; our commerce has extended, under the protection of our infant Navy, to every part of the globe; wealth has flowed without intermission into our seaports, and the labors of the husbandman have been rewarded by a ready market for the productions of the soil. Be assured, sir, that the various, and important subjects recommended to our consideration, shall receive our early and deliberate attention; and, confident of your co-operation in every measure which may be calculated to promote the general interests, we shall endeavor, on our part, to testify, by our industry and despatch, the zeal and sincerity with which we regard the public good. The report of the committee was immediately taken up, and, on the question to agree to the Address, Mr. NICHOLAS rose and observed that he regretted the introduction of political matter, calculated to produce discord and division. He was averse to the House spending time in propounding political theories, as no good, but much mischief, might flow from such a procedure. Had no other topics or sentiments been alluded to than those contained in the President's Speech, there would have been much less division in the House than was to be expected from the insertion of extraneous ideas. He had no intention, however, to enter into a detail of the objections he entertained to the Address. For the reasons he had assigned, and others which he felt, he thought the style of the Address not only unnecessary, but worse than useless. He concluded by desiring the yeas and nays to be taken. The question, being taken, was carried in the affirmative--yeas 36, nays 32, as follows: YEAS.--Bailey Bartlett, William Cooper, Wm. Craik, John Davenport, Franklin Davenport, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Jonathan Freeman, Elizur Goodrich, Roger Griswold, Archibald Henderson, Benjamin Huger, Jas. H. Imlay, Henry Lee, Silas Lee, James Linn, Lewis R. Morris, Harrison G. Otis, Robert Page, Josiah Parker, Jonas Platt, Leven Powell, John Read, Nathan Read, Wm. Shepard, John C. Smith, Richard Dobbs Spaight, George Thatcher, Richard Thomas, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. NAYS.--Phanuel Bishop, Robert Brown, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, John Dawson, Lucas Elmendorph, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, George Jackson, Aaron Kitchell, Michael Leib, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, John Randolph, John Smilie, John Smith, Richard Stanford, David Stone, Thomas Sumter, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, and Jos. B. Varnum. _Resolved_, That Mr. SPEAKER, attended by the House, do present the said Address; and that Mr. GRISWOLD, Mr. MACON, and Mr. CRAIK, be a committee to wait on the PRESIDENT to know when and where it will be convenient for him to receive the same. _Credentials of Members._ Mr. DENT, from the Committee of Elections, to whom were referred the certificates and other credentials of the members returned to serve in this House, made a report, in part, which was read as follows: "That they have examined the credentials of several members, claiming seats in the House, in consequence of resignations which have taken place, and find that, by the certificate of the Governor of Massachusetts, dated the eleventh day of November, eighteen hundred, under the seal of the State, Nathan Read (of Danvers) is duly elected, in the place of Samuel Sewall; that by the certificate of the Governor of Connecticut, bearing date twentieth day of October, eighteen hundred, with the seal of the State annexed, John Cotton Smith is duly elected, in the place of Jonathan Brace; and that, by the certificate of the Deputy Sheriff of Henrico, the Sheriff of Hanover, the Sheriff of New Kent, the Deputy Sheriff of Charles City, and the Sheriff of James City Counties, composing one entire district in the Commonwealth of Virginia, under their respective seals, Lyttleton Waller Tazewell is duly elected, in the place of John Marshall.[58] "The committee also find, by an authenticated certificate signed by the Speaker of the House of Representatives, and the President of the Legislative Council of the Territory north-west of the river Ohio, dated the seventh day of November, eighteen hundred, that Wm. McMillan is duly elected to represent the said Territory, in the place of William Henry Harrison. "Whereupon, the committee are of opinion that Nathan Read, (of Danvers,) John Cotton Smith, and Lyttleton Waller Tazewell, are entitled to take their seats in the House in the place of Samuel Sewall, Jonathan Brace, and John Marshall, who have resigned; and that William McMillan is entitled to take his seat therein, with the right of debating, but not of voting, in the place of William Henry Harrison, who has resigned." _Ordered_, That the said report do lie on the table. THURSDAY, November 27. Another member, to wit, JOHN BIRD, from New York, appeared, and took his seat in the House. _Answer to the Address._ The SPEAKER, attended by the House, then withdrew to the house of the PRESIDENT OF THE UNITED STATES, and there presented to him the Address of this House in answer to his Speech to both Houses of Congress; to which the PRESIDENT made the following reply: _Mr. Speaker, and Gentlemen of the House of Representatives_: Compelled by the habits of a long life, as well as by all the principles of society and government which I could ever understand and believe, to consider the great body of the people as the source of all legitimate authority, no less than all efficient power, it is impossible for me to receive this Address from the immediate Representatives of the American people, at this time, and in this place, without emotions which it would be improper to express, if any language could convey them. May the spirit which animated the great founder of this city descend to future generations; and may the wisdom, magnanimity, and steadiness, which marked the events of his public life, be imitated in all succeeding ages. I thank you, gentlemen, for your assurance that the Judiciary System shall receive your deliberate attention. With you, gentlemen, I sincerely hope that the final result of the negotiations now pending with France, may prove as fortunate to our country, as they have been commenced with sincerity, and prosecuted with deliberation and caution. With you, I cordially agree, that so long as a predatory war is carried on against our commerce, we should sacrifice the interests and disappoint the expectations of our constituents, should we for a moment relax that system of maritime defence, which has resulted in such beneficial effects. With you, I confidently believe that few persons can be found within the United States, who do not admit that a Navy, well organized, must constitute the natural and efficient defence of this country, against all foreign hostility. Those who recollect the distress and danger to this country, in former periods, from the want of arms, must exult in the assurance, from their Representatives, that we shall soon rival foreign countries, not only in the number, but in the quality of arms, completed from our own manufactories. With you, gentlemen, I fully agree, that the great increase of revenue is a proof that the measures of maritime defence were founded in wisdom. This policy has raised us in the esteem of foreign nations. That national spirit and those latent energies which had not been and are not yet fully known to any, were not entirely forgotten by those who had lived long enough to see, in former times, their operation, and some of their effects. Our fellow-citizens were undoubtedly prepared to meet every event which national honor or national security could render necessary. These, it is to be hoped, are secured at the cheapest and easiest rate: if not, they will be secured at more expense. I thank you, gentlemen, for your assurance that the various subjects recommended to your consideration, shall receive your deliberate attention. No further evidence is wanting to convince me of the zeal and sincerity with which the House of Representatives regard the public good. I pray you, gentlemen, to accept of my best wishes for your health and happiness. JOHN ADAMS. WASHINGTON, _Nov. 27, 1800_. The members then returned to their Chamber. A message from the Senate informed the House that the Senate have proceeded to the appointment of a Chaplain to Congress, on their part, and the Right Reverend Bishop CLAGETT has been duly elected. The House proceeded, by ballot, to the appointment of a Chaplain to Congress on the part of this House; and upon examining the ballots, a majority of the votes of the whole House was found in favor of the Reverend THOMAS LYELL. FRIDAY, November 28. Another member, to wit, ABRAHAM NOTT, from South Carolina, appeared, and took his seat in the House. MONDAY, December 1. Several other members, to wit: from Maryland, JOHN DENNIS; from Virginia, JOSEPH EGGLESTON; from North Carolina, WILLIAM H. HILL; and from Georgia, JAMES JONES, appeared, and took their seats in the House. TUESDAY, December 2. The SPEAKER laid before the House a letter from the Secretary of the Navy, accompanying a report of the Commissioners of the fund for navy pensions and half-pay, pursuant to the act for the better government of the Navy of the United States; which was read, and ordered to lie on the table. Mr. LEE, from the committee appointed for that purpose, reported a bill for erecting a Mausoleum to GEORGE WASHINGTON, which was read twice and referred to a Committee of the Whole to-morrow. The bill directs that the mausoleum shall be of marble, to be erected in the City of Washington, under the superintendence of the four Secretaries. _Trade with the Indians._ Mr. CLAIBORNE stated that during the last session a committee was appointed to inquire into the state of the trade, authorized by law, with the Indian nations. That committee had reported unfavorably to the trade. But desirous of maturing with deliberation a new plan before the old one was supplanted, they had reported a bill for continuing the existing system for one year. The bill had passed the House of Representatives unanimously, but had been postponed by the Senate to this session. For his own part, he was altogether unfavorable to the trade; for he believed that it answered no good purpose in relation to the Indians, while it was a loss to the United States.[59] It was, however, proper that some Legislative provision should be made immediately. The old law regulating the officers who had the superintendence of the trade, had expired, and they were of consequence under no legal control. He, therefore, moved the appointment of a committee, to inquire into the expediency of carrying on any further trade on a capital furnished by the United States, to report by bill or otherwise; which motion being read a second time, was agreed to, and a committee of three appointed. THURSDAY, December 4. Another member, to wit, SAMUEL GOODE, from Virginia, appeared, and took his seat in the House. The SPEAKER informed the House that the Chaplains had proposed, if agreeable to the House, to hold Divine service every Sunday in their Chamber. _Reporting the Debates._ Mr. HILL presented a memorial from Samuel Harrison Smith and Thomas Carpenter, representing that they had undertaken to report the debates of the House; that, contrary to their expectation--on the suggestion of inconvenience to the members--they had not received permission to occupy a situation within the bar, without which they were unable to state with fidelity the proceedings and debates; and praying the permission of the House to be admitted within the bar. As soon as the memorial was read, the SPEAKER rose and observed, that feeling himself responsible to the House for the faithful discharge of the duties attached to his situation, he thought it proper to state the line of conduct he had pursued in this business. He stated that he was applied to by letter on the first day of the session, by Mr. Stewart, requesting permission to occupy a place within the bar; that he immediately took the request into consideration; that, in the mean time, similar requests were made by other individuals; that, on observing the structure of the room and the arrangement of the furniture, it at once appeared to him inconsistent with the dignity of the House or the convenience of the members to grant the permission asked; that the area was too small to afford the necessary accommodation; that the position considered as the least inconvenient to the House was within the window-frames; that, in his opinion, this position would not be agreeable to the stenographers, as the view of the members on the opposite side of the House from either window would be obstructed; that, if a position was assigned in any other part of the House, the stenographers would be between the chair and some of the members, which would render the preservation of order impossible; that he had stated these reasons, and informed the applicants that, if agreeable to them, he would assign a place in the gallery, which should be set apart for their exclusive use; and that he considered that to be the most eligible position. He concluded by repeating, that it was, in his opinion, absolutely impossible to preserve the dignity of the House and to maintain the convenience of the members, if the requested permission were given. Such was his first, his invariable opinion--it was unaltered--it was still the same. Mr. NICHOLAS said, that the members of the House must feel a common interest in having the debates taken with fidelity. If the debates were taken, they ought to be taken with precision. Those who took them should not be debarred from the best means of hearing with accuracy. For his part he could not discern the inconvenience alleged to exist. The desk, which it was necessary to admit within the bar, would not project beyond the window-frame; and as to the remark of the Speaker respecting the inconvenience of such a position to the stenographers, it was easily obviated by the consideration, that any inaccuracy which might occur in the report of the individual who took them on one side of the chair, would be checked by the reporter situated on the other side. He thought the desire of the memorialists ought not to be passed over lightly. They had a right to the best place the House could assign. He moved the reference of the memorial to a select committee. Mr. HILL observed that as the memorial contained no facts that required the investigation of a committee, and as the House possessed all the information that could guide their decision, he did not discern the propriety of the proposed reference. He had prepared a resolution, which, if the motion for a reference were withdrawn, he would offer. Mr. NICHOLAS immediately withdrew his motion. Mr. HILL then proposed a resolution substantially to this effect: that Mr. SPEAKER be requested to assign places within the bar for the stenographers. Mr. OTIS was sorry the gentleman from Virginia had withdrawn his motion to refer the memorial to a select committee, as he thought the subject required examination before a decision was made. There appeared to him much weight in the ideas of the Speaker. Grant, for the sake of argument, that four persons may be accommodated at the windows. Might there not be other applications? Was any gentleman prepared to say how many would be made? If the permission were once granted to one, would it not be necessary to extend it to all? Would the House suffer any individual to have an exclusive benefit whereby a stamp of authenticity would be fixed on his statements. This business, in one shape or other, had often been before the House, and all conversation respecting it had always issued in leaving it to the regulation of the Speaker. This appeared to him the best termination it could receive. From the attention he had paid to the debates reported this session, he believed them to be better and more accurately taken, than they had been on former occasions. This to him was a proof that the present situation of the stenographers was a good one. He acknowledged, at the same time, that the ability with which the debates were taken entitled those who took them to the best accommodation the House could afford. He concluded with renewing the motion for a reference to a select committee. Mr. NICHOLAS replied, that no debate had taken place which could test the accuracy of the stenographers. From his own experience he pronounced the situation at present occupied utterly inconvenient. What he had some days since remarked had been misstated. He well knew that this did not arise from the inability of the reporter to state correctly what occurred. He knew him to be intelligent, and fully capable of conceiving and conveying the meaning of any remarks which could be made in that House. But it arose from his situation, from which it was impossible to hear distinctly. He declared the objections of Mr. OTIS, in relation to the number of applicants, perfectly chimerical. Did the gentleman suppose that the number would be so great as to make a demand on their seats? As well might he imagine this, as that they would swell to the ideal compass he had given them. It was known to the House, that at Philadelphia the number was small; seldom more than two, and often not more than one persevered during the session, though a greater number appeared on its earliest days. Fact and experience, therefore, demonstrated the fallacy of the danger apprehended from this source. The question was then taken on the reference to a select committee, and carried--ayes 42, noes 34. And a committee of five, viz: Messrs. OTIS, NICHOLAS, PLATT, MORRIS, and HILL, was appointed. FRIDAY, December 5. Several members, to wit: from North Carolina, WILLIAM BARRY GROVE; from Kentucky, THOMAS T. DAVIS; and from Rhode Island, CHRISTOPHER G. CHAMPLIN, appeared, and took their seats in the House. _Mausoleum to Washington._ Mr. H. LEE moved that the House do go into a Committee of the Whole on the bill "directing the erection of a mausoleum to GEORGE WASHINGTON." On which motion the House divided--yeas 36, nays 34. Mr. MORRIS took the chair. The Chairman, after reading the bill through, proceeded to read it by paragraphs. The first section is as follows: "SEC. 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That a mausoleum of American granite and marble, in a pyramidal form, one hundred feet square at the base, and of a proportionate height, shall be erected, in testimony of the love and gratitude of the citizens of the United States, to GEORGE WASHINGTON." Mr. ALSTON moved an amendment to the first section, which was, in substance, "that a monument of marble be erected in the Capitol, at the city of Washington, commemorative of the great events of the military and political life of GEORGE WASHINGTON." Mr. H. LEE said, that during the last session the House, after a long debate, had declared itself in favor of a mausoleum, and that as no reasons had been assigned for a change of opinion, he hoped they would persevere in the deliberate result of their judgment. Mr. OTIS was ready to acknowledge himself unacquainted with many of the circumstances embraced by the subject. He therefore wished additional information to that which he had received. His present opinion was, that a mausoleum was preferable to a monument. He acknowledged that, in forming this opinion, he had felt great deference for the judgment of the committee which had recommended it. It was undoubtedly a subject but little understood. The formation of a proper decision depended upon a concurrence of several circumstances--upon a comparison of the expense with the value of the object to be accomplished. Besides this, it had many peculiar features not comprehended by every gentleman. He thought these considerations sufficient to induce the House to decline voting for the amendment, whereby the plan of the committee, who had maturely considered the subject in all its relations, would be frustrated, unless stronger reasons were assigned than he had yet heard. Mr. NICHOLAS observed, that the bill directed the erection of a mausoleum of certain dimensions, to ascertain the expense of which an estimate had been made. But that estimate was not satisfactory. It was made without information. The sum to be expended was not fixed. It might vastly exceed any sum now contemplated. The mausoleum was to consist of a huge, ugly mass of stones heaped upon one another, to raise which a heavy and useless expense would be incurred. And what was the object? It was to perpetuate the memory of GEORGE WASHINGTON. Was the memory of that great man to be perpetuated by a heap of large inanimate objects? The best way in which his fame could be preserved would be by bringing his ashes from the place where they now lie, by depositing them in the Capitol at the will of the nation, in interring them in such a manner as had never before been done, in placing over them a plain tablet, on which every man could write what his heart dictated. This, and this only was the basis of his fame. It was not to be blazoned by figures or representations of any other sort. It consisted in the undecaying recollection of his virtues. It must live in the national feeling, and this called not for useless expense. Twenty thousand dollars was as competent to its expression as two hundred thousand. He hoped, therefore, the amendment would be adopted, and that the terms which related to military and political achievements would be omitted. He hoped a plain monument would be erected. His preference of a monument to a mausoleum arose not from any indisposition to celebrate the memory of our American hero. He could say as much in his praise as any man. Neither a committee of Congress nor the four Secretaries, on whom the bill devolved the superintendence, felt more zeal for the character of this great man than he did. Mr. NOTT did not rise to consume the time of the committee by going at large into an examination of the subject, but to explain the reasons for the vote he meant to give. He had, last session, co-operated most cheerfully in all those measures which had been pursued to express the national sensibility at the loss of that great and immortal character. In the feelings of gratitude which his services excited, no man could outdo him. Among other measures, he had been friendly to the erection of a mausoleum. But, on more reflection, he had changed his opinion. He did not believe that a huge mass of stones would add to the reputation of WASHINGTON, or be more expressive of national affection, than a marble monument. This being the case, he preferred the latter, because it was the least expensive. Mr. GRISWOLD hoped the amendment would not prevail. It was the object of the bill to raise a monument which would last for ages, and which should be a perpetual memorial of the gratitude of America. Such would not be the case if the proposition made by the gentleman from North Carolina should be adopted. The monument proposed by him might be broken and destroyed by a lawless mob or by a set of schoolboys. For his part, he would not consent to raise such a monument to the memory of a man who had deserved so well of his country. The bill proposed the erection of a monument that would stand unimpaired for ages. It is true that it will not perpetuate the fame of WASHINGTON: his fame required nothing which we could do to give it perpetuity; but it will perpetuate the gratitude of the country. It would be a structure that will command respect; it will be pointed out to our children; they will enter it with reverence, as the spot in which the ashes of this great man are deposited. It was undoubtedly a subject of sentiment; and subjects of such a kind must be guided by feeling. Various opinions, therefore, may naturally be expected. His opinion was, that the national sentiment called for the erection of a structure correspondent in size to the character of the man to whom it was raised. The general outlines of the bill might now be adopted; and if there existed a variance of opinion, the subordinate members of it might be modified. Mr. H. LEE said, if it were the wish of gentlemen to avoid the adoption of measures commemorative of the talents of the great man we have lost, it would be candid to tell us so at once. For his part, he saw little difference between the adoption of the amendment and the rejection of every plan proposed that was adequate to the occasion. Sir, said Mr. L., there is not a rich man in Europe who loses his mistress that does not raise a trophy to her memory; and shall it be said that we, who have sustained the most irreparable loss in the death of our Chief--shall it be said that we refuse to pay him those honors which are lavished so liberally upon such inferior objects? If you do not mean to come forward on the occasion, say so. Then we shall understand the reasons of opposition to the ground taken by this House last session. As yet no reasons had been assigned for abandoning it. We then declared that we would act. We exhibited a spirit worthy of the immortal WASHINGTON--worthy of the distinguished character of this House. But should this honorable spirit, kindled by an enthusiasm in the virtues and talents of our departed benefactor, subside and be chilled by the adoption of the proposed amendments, he would condole with the House, and would rather they would be silent for ever than disgrace themselves and their country by so subordinate an act. It is true, sir, that the celebrity and the glory of WASHINGTON hang not on our plaudits. History will transmit to posterity the lustre of his fame, glittering with untarnished purity. It is not in our power either to increase or diminish it. But, sir, we may imitate his virtues and his great example. We are deeply interested in holding them forth as illustrious models to our sons. Is there, then, I ask you, any other mode for perpetuating the memory of such transcendent virtues so strong, so impressive as that which we propose? The grandeur of the pile we wish to raise will impress a sublime awe in all who behold it. It will survive the present generation. It will receive the homage of our children's children; and they will learn that the truest way to gain honor amidst a free people is to be useful, to be virtuous. This will not be the act of an individual. It will be the act of a Government expressing the will of a great nation. Seize then, I pray you, seize with rapture, the occasion that is now presented, thankful to the Supreme Disposer of events for giving you an opportunity of rearing some future WASHINGTON. This is a great object; frown, then, upon all the little efforts made to defeat it. It is certainly true, that if you erect a mausoleum, you must expend some public money. But are you not the guardians of the public treasure? Does not the selection of the best objects to which to appropriate it devolve on you? And can there be a greater, a more patriotic purpose than this? Is it not your great duty to promote the public good; and can that be more completely promoted in any other way? The sum asked is seventy thousand dollars. Who can show me in what other manner the same good can be effected by so small a sum? But it is said that the bill vests a discretion in the Secretaries, and they may exceed the estimate. But, sir, are the Secretaries unworthy of confidence? Do not we know that we may safely rely upon them? Besides, if thought expedient, the expenditure may be limited. Thus, surely, without prodigality on the one hand or parsimony on the other, you may do honor to yourselves and your country. Mr. MACON did not pretend to know much about that kind of things proposed by the bill; but he believed, from the little he did know, that such a thing had not been attempted for a thousand years. The expense attending the proposed measure had been treated lightly. For himself, he was not disposed to consider seventy thousand dollars a trifling sum. He thought it a great sum, and believed every man in the country thought as he did. In forming his idea of any particular sum, he was not carried away by the visionary notions of speculation; he looked at the labor it required to produce it; and he well knew how hardly earned was the money from which this enormous sum must proceed. He further believed that no man could tell how much the mausoleum would cost. The seventy thousand dollars was only a beginning; and when the object was once begun, experience tells us that we must finish it at all events, let it cost what it might. The base was fixed at a hundred feet. Why not decide its other proportions? Did not the silence of the bill on this point show the ignorance of gentlemen? All was doubt. What strengthened his opinion of the total want of information, was the exhibition last session of two estimates: one of which was predicated on a base of sixty feet, and required sixty-seven thousand dollars; the other was predicated on a base of one hundred feet, making the structure nearly three times as large, and requiring only seventy thousand dollars. Could this be correct? Both estimates certainly could not be true. The probability was that neither could be depended upon. For what purpose was this great mass to be raised? He saw no good purpose likely to be answered by it under the sun. Can stones show gratitude? If the nation wished to show its gratitude, let them do it by making a history of the life of WASHINGTON a school-book. Our children then will learn and imitate his virtues. This will be rendering the highest tribute to his fame, by making it the instrument of enlightening the mind and improving the heart. While there are such rational modes of distinguishing the memory of WASHINGTON, can Congress so far forget the interest of the nation; can they so far forget their own duty, as to expend millions in acts of useless and pernicious ostentation? Since the invention of types, monuments are good for nothing. The records of history will remain long after their decay or destruction. We are told that the best mode of perpetuating the memory of WASHINGTON is to erect a mausoleum. I have heard, said Mr. M., of Aristides, I have heard of Hampden, but I have never heard of monuments raised to their memories. Yet their virtues shine as bright now as they did while they lived. I have heard of a place called Westminster Abbey, full of the monuments of kings; yet, notwithstanding these grand memorials, I have heard very little of them after they left this world, and I question very much whether any man, let him have heard what he may, if he were to go there could tell one of them from the other. But, it is said that the monument, proposed by the amendment, may be thrown down and destroyed by mobs or schoolboys. God forbid that this should ever be the case! I do not believe, said Mr. M., this to be possible. If it were made of glass, frail as it is, it would be safe; all would revere, all would respect it. The House is told by one gentleman, who advocates the mausoleum, that a rich man in Europe cannot lose his mistress without raising a monument to her memory. Was the gentleman serious when he made this remark? Would he place the memory of WASHINGTON on a footing with that of a rich man's mistress? Better, sir, said Mr. M., far better would it be, more honorable to the Government, and more conformable to the wish of our deceased friend, to devote the seventy thousand dollars, designed for a mausoleum, to the education of the poor. Then, indeed, we might flatter ourselves with having extended the empire of his virtues, by making those understand and imitate them, who, uninstructed, could not comprehend them. If he thought that by raising a magnificent monument to WASHINGTON, he could give duration to his fame, or carry his name into a single country which it had not yet reached, he would give the measure his support. But no such effect would be produced. It might indeed adorn this city; and that was the only plausible argument in favor of it. Before gentlemen act in this business, let them look to Egypt; there they will behold precedents in profusion; men made gods, and statues and monuments and mausolea covering the whole face of the country; but where will they find the virtues or the talents of the men they were meant to commemorate? Now is the time to make a stand against this monument mania. WASHINGTON is admired and beloved by all. No one can be charged with a desire to diminish his fame by opposing a useless expenditure of money. The precedent we now establish will be auspicious to our future measures. If we decline raising a mausoleum to WASHINGTON, no man who succeeds him can expect one reared to his memory. On the other hand, if we now raise one to WASHINGTON, every pretender to greatness will aim at the same distinction. Mr. MACON concluded by declaring himself hostile to the bill, and friendly to the amendment, because it proposed a plan that was more rational, more economical, and more conformable to the resolve of the old Congress, than that contained in the bill. The committee then rose without coming to any decision, reported progress, and obtained leave to sit again. MONDAY, December 8. Several other members, to wit: from Connecticut, CHAUNCEY GOODRICH, and SAMUEL W. DANA; and from Rhode Island, JOHN BROWN, appeared, and took their seats in the House. A new member, to wit, SAMUEL TENNEY, returned to serve in this House as a member for New Hampshire, in the room of William Gordon, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House. TUESDAY, December 9. Another member, to wit, JOHN RUTLEDGE, Jr., from South Carolina, appeared, and took his seat in the House. _Reporting the Debates._ The House proceeded to consider the report of the committee to whom was referred the memorial of Samuel Harrison Smith and Thomas Carpenter, made yesterday, and which lay on the table; and, the same being again read, in the words following, to wit: "The committee to whom was referred the memorial of Samuel Harrison Smith and Thomas Carpenter, report the following resolution, which they recommend to the House: "_Resolved_, That it is not expedient for this House to make any order upon the subject of the memorial of Samuel Harrison Smith and Thomas Carpenter, presented on the fourth day of December instant." Mr. CHRISTIE moved the reference of the report to a Committee of the Whole. Mr. GRISWOLD opposed the reference. The House divided--for the reference 43, against it, 46. Mr. JACKSON made several remarks, and concluded by calling for the yeas and nays, which were ordered. Mr. NICHOLAS said, in a Government like ours, the theory of which is republican, and the practice of which he hoped would always continue to be republican, he considered the representatives of the people responsible to the people, by whom they were created. It was necessary, to give efficacy to this responsibility, that the people, who were to judge, should possess the purest information, as to not only the acts, but the motives of the public agents. It was of little consequence to them to know what laws are enacted, compared with a knowledge of projects that were attempted or prevented, and the grounds on which they were supported or opposed. Nor could the merits of the acts themselves be understood, unless the reasons for them were stated. It was, therefore, of the highest consequence that the reasons for our conduct should be clearly understood, that our measures may be comprehended, and our motives also known, that our constituents may judge whether we have faithfully discharged our duty. Under this view of the subject, he thought it extremely indelicate to resist the admission within the bar of those persons who thought themselves qualified to take the debates and proceedings of the House. But what rendered the attempt still more improper, was, its being an innovation on the practice of the House. For, since he had been a member of the Legislature, individuals of this description had been placed by the House at their ease, in a situation convenient for hearing what passed. Why is this practice, hitherto unopposed, now to be broken in upon? For such an innovation and departure from the established practice of the House, there ought to be the strongest reasons; particularly when the attempted innovation respected, and was made by, those whose conduct was to be scrutinized. It was not without deliberation that the practice of the House had been instituted and adhered to. Some gentlemen had, some time since, contemplated the employment of a particular individual, whose services were to be paid for by the House. But the idea was abandoned, from the supposed sanction given by such an act to his statements; whereby the House might be made responsible for his accuracy and talents. The difficulty attending the business he acknowledged to be great. But, for the reasons he had assigned, he thought the House had acted right in forbearing to interfere, further than by merely assigning a convenient place to the stenographers. It was deemed safest to confide the business to persons not known officially to the House, whose own individual interest would constitute the best pledge for their fidelity. Though no precise resolve had been passed to this effect, it was well understood that this was the course the House meant to pursue, after having given the subject a deliberate and solemn consideration. Shall we now, said Mr. N., after this mature consideration, on the mere suggestion of personal inconvenience, on a subject of such importance as to invite a gentleman from a considerable distance, [referring to some old plan,] shall we, after the sanction of a uniform practice, fortified by the long period for which it has been observed, on the suggestion of a trifling inconvenience, which, he believed, on examination, would not be found to exist at all, adopt the innovation proposed by the report of the committee? For his part, he thought they were all deeply interested in having the debates well taken, as it was not in their power altogether to prohibit their being taken. He had heard but two objections made to the old plan. The first was, that by passing a resolve admitting stenographers within the bar, the House gave a sanction to the reports published by them. The second was, that as the Speaker had heretofore had the management of the business, it would be wrong to take it out of his hands. As to the first objection, he thought it altogether incorrect. The resolution, submitted by the gentleman from North Carolina, (Mr. HILL,) which he wished the House to adopt, does not propose the selection of any particular person. It admits, generally, those individuals who wish to take the debates. Can this admission make us responsible for the conduct of men we do not know, and over whom we have no control? Have we heretofore been considered as responsible? And wherein consists the difference between our past situation and the situation we shall be in, if the motion of the gentleman from North Carolina be adopted? We shall then only have done that which before had been done by the Speaker. Governed by a sense of duty, the Speaker had refused admission within the bar. It became, therefore, necessary, in order to admit, for the House to pass a resolution. But it did not follow that the least responsibility would arise from such an act. Indeed, by admitting the stenographers within the bar, the responsibility of the House would be diminished; for, if the House admitted them, no one could then say that it had done any thing that interfered with a faithful report of the debates; whereas, by excluding the stenographers, the unavoidable inaccuracies committed, might be charged to the House. The second objection made to the resolution of the gentleman from North Carolina, was that, as the Speaker had heretofore had the management of the business, it would be wrong to take it out of his hands. Mr. N. in reply to this objection, observed, that the power, heretofore exercised by the Speaker on this subject, had not been expressly delegated to him by the House. It had often been thought of, but no decision had heretofore been made. As the object asked related to the convenience of the members, he thought they were the best judges of the propriety of granting it. The inconvenience alleged to exist was entirely a matter of opinion. He thought it either had no existence or a very limited one. As he had remarked before, the subject was extremely delicate. He would not consent to furnish room for being charged with a wish to suppress the means of making an inquiry into his conduct. He believed that the innovation contended for, would be so viewed; so far, therefore, from considering it as innocent, he viewed it as wrong in itself, and likely to be mischievous in its effects. Mr. OTIS was one of those who was not disposed to make a strong stand against the resolution offered by the gentleman from North Carolina. He did not view the point in so interesting a light as did the gentleman who had preceded him. It appeared to him in the shape of a question of convenience; and as to his own situation, it could not be affected by any permission given to stenographers to come within the bar. Many of the arguments he had heard, implied that the situation at present occupied by the stenographers was exclusive of all others; whereas if that were inconvenient they might take any other, so that they did not come within the bar. It is true that the stenographers have hitherto been admitted within the bar. They were admitted because there was room. But, in our present chamber, the room was less; nor could they occupy a part of that little, without materially interfering with the convenience of the members. In his opinion, the proper question for the House to consider was, whether an admission should take place independent of the Speaker, or whether he should decide its propriety. It did not follow, if the Speaker retained the management, that the exclusion would apply to all occasions. It was true, that the places desired by the stenographers were generally assigned to the high Executive officers of the Government, and the foreign Ministers. But if, in consistence with their accommodation, the indulgence could be granted, during any important debate, he had no doubt of the Speaker's readiness to admit them, and they might thus obtain a temporary place within the bar. Mr. O. thought the remarks of the gentleman from Virginia covered too much ground. They ascribed to the friends of the report an attempt to preclude the people from obtaining all information of what passed in the House. No such design existed. For his part, he wished the people to know every thing that occurred within these walls. There was no doubt of the debates, as heretofore given, being an inadequate organ of the ideas of the members; they had been taken for nearly twelve years, and sometimes they had been accurate, and at other times very inaccurate; and so complete had the distortion of sentiments often been, that had it not been for the name that was attached to a particular speech, the member, to whom it was ascribed, would not have known it to be his. Mr. O. would, notwithstanding, not deny the ability of a person who read the debates, to form a tolerable idea of the arguments used on a particular subject. The charge of innovation, Mr. O. thought unjust. He proposed to leave the business as it had heretofore been left, free from any resolve of the House, to the control of the Speaker. By this conduct, no sanction would be given to the performances of any reporter; but, on the other hand, if the House passed a resolve, divesting the Speaker of his previous power, they would render themselves responsible, and would virtually give a sanction. If it were resolved that the House should interfere, he would much rather select and pay an individual competent to the business, and appeal, for the faithful discharge of his trust, to his candor and impartiality. If the House passed the resolution admitting the stenographers within the bar, Mr. O. asked whether they would not in fact be officers of the House. The only difference between them and the other officers would be that one would be paid and the others would not. Mr. O. said that, in his opinion, the most inconvenient position in the House had been taken by the stenographers. It was near the Clerk's office, between which and the bar there was a perpetual passage of the members. If an experiment were made of a position on the other side, or in the upper gallery, he was persuaded it would be found very convenient. Are not, said Mr. O., the galleries constructed for the express purpose of hearing? Are they not intended for the good people of the United States? And if they can hear in them, cannot the stenographers also? Mr. O. concluded by stating the extreme inconvenience that would arise from admitting the stenographers; the interference it would produce with the assignation of seats to the Secretaries of our Government and the foreign Ministers; and with declaring his opinion that it was most expedient to adopt the report of the committee. Mr. NICHOLSON said, that if he understood the objections made by the gentleman from Massachusetts to granting an admission of the stenographers within the bar, they might be classed under three heads: 1. It will be against precedent; 2. It would prevent the members from having elbow room; 3. There is a possibility that the Speaker may indulge the stenographers. As to the first objection, he would ask whether the House had not a right to exercise any power themselves that was exercised by the Speaker. Hitherto the Speaker has exercised the power, and admitted the stenographers within the bar; he now refuses to do it, and we are called upon to perform what he refuses. If we think it proper to admit them, we have a right to do it. The power heretofore exercised by the Speaker was derived from us, according to the well-known maxim, _Qui facit per alium, facit per se_. But we are told that the admission would interfere with the accommodation of the four Secretaries and the foreign Ministers. Suppose it should, said Mr. N.; I ask whether the convenience and the interest of the people of the United States are to be prostrated by our complaisance to the Secretaries and foreign agents? It is our duty to enable the people to obtain the best information of what is doing here, that we can supply. Shall we abandon our duty? Shall we sacrifice the interests of our constituents to a sense of politeness to these gentlemen? It would be much better to submit to the inconvenience experienced by the Secretaries and the foreign Ministers, if there is not room for them within the bar, than to conceal from the people the knowledge they have a right to possess. Let, then, the foreign Ministers, if there be such a competition, retire into the galleries. He considered the subject as of high importance both to the country and the members themselves. They all ought to desire their conduct to be rigidly inspected. Gentlemen say that the debates have been heretofore imperfectly taken. Will they remedy the evil by excluding the stenographers from places within the bar? If, heretofore, notwithstanding the favorableness of their position, when stillness and silence reigned, they have been unable to take the debates with precision, can it be expected that, driven to a distance from most of the members, surrounded by a crowd in perpetual motion, they will be able more successfully to accomplish their object? Sir, said Mr. N., the expectation is absurd. It cannot be done. I have placed myself without the bar, and I declare it impossible to hear correctly. If, then, you are determined to exclude them from their usual places, you had infinitely better turn them out of the House altogether. As to the convenience of the galleries for hearing, Mr. N. was not able, from a trial made by himself, to decide upon it. But he had heard but one uniform opinion, which was, that owing to the constant passage of persons, and the frequent crowd it would contain, it was impossible to hear there with any distinctness. With respect to the remarks made by the gentleman from Massachusetts on this point, he thought them altogether inapposite. The gallery was not constructed by us, and if it were a bad place for hearing, it arose not from any fault to be ascribed to us. All that we did was to open our doors to all citizens who conducted themselves with decorum. The personal inconvenience to members alleged, did not, in the opinion of Mr. N., exist. He thought there was ample room. The chamber they occupied was similar to that in Philadelphia, and the positions desired by the stenographers were relatively the same as those in Philadelphia. By advancing the Clerk's table three feet, every difficulty would be removed. Mr. RUTLEDGE said, that the members who had preceded him had talked much about the necessity of giving the people correct information of the transactions of that House. He believed there was not a single member who did not wish to impart to the people all the knowledge they could receive, and who did not highly prize the means of information furnished by the proceedings of that House. On this point there was no division. No one was desirous of excluding the stenographers, or prohibiting the publication of debates. The only question really before the House was, whether they should persevere in the old plan; whether they should confide in the integrity and the talents of the Speaker, who had hitherto merited their confidence, or whether, divesting him of his power, they should exercise a right themselves hitherto attached to his office. Such a mode of procedure as had been pursued on this occasion was not conformable to that heretofore practised. An application somewhat similar had been, some time since, made to the Speaker. The Speaker decided, and the House, without debate, acquiesced in his decision. A stenographer had grossly misrepresented a member, and when required to correct his false statement, had insolently refused to do it, and added to the previous injury of misstatement insult of the most contumelious kind. The Speaker dismissed him from his place for this barefaced misconduct. Some of his friends made an appeal to the House. The House acted wisely, and, with becoming dignity, refused to interpose. Now, said Mr. R., if any other stenographer, like the one I have alluded to, shall make it his systematic practice to misrepresent, and he continue as heretofore to hold his place at the tenure of the Speaker's permission, he may be dismissed by the Speaker without troubling the House. But should the motion made by the gentleman from North Carolina prevail, we shall be perpetually appealed to, and occupied in debate. For these reasons he trusted the report would be agreed to. Mr. HILL said he considered the subject as simply involving an address to the sentiments of the members on the ground of personal convenience, and that on that ground he was ready to sacrifice any little inconvenience to the accommodation of the stenographers; stating at the same time his entire reliance upon the integrity and talents of the Speaker. Mr. GRISWOLD said, this is nothing less than an appeal from the Chair. To the Speaker has heretofore been committed the regulation of the admission of all persons whatever within the bar. This is the only correct mode in which such an object can be accomplished. The Speaker must exercise the discretion hitherto vested in him, otherwise the order of the House cannot be preserved. The object now is to take this power from the Speaker, and to open the area of the House to the stenographers, without the Speaker's approbation. It is said that only two persons at present apply. But if the door be once opened to admission in this way, there may be no end to intrusion. The Speaker being divested of power to act, and the necessity of acting being evident, the House will be perpetually troubled with appeals. In his opinion, the power confided to the Speaker had been exercised in this case with great propriety. It must be apparent to every body that the area was too small to justify the admission of the stenographers. He believed it to be an idle pretence that the stenographers could not hear. He believed it to be a mere matter of pride, which would be gratified by an appeal from the Chair, and a reversal of the decision of the Speaker by the House. Mr. THATCHER, persuaded that all the information derived from the debates of this House was of little comparative importance when viewed in relation to the general mass of information possessed by the people, cared but little for the event of the resolution before the House. Upon this ground he felt no anxiety whatever. As a matter of order, it might perhaps be of some importance. As to the convenience of position, he doubted whether a more correct account of the debates could not be given from a situation without the bar than within it. His reasons were these: It was well known that for four or five sessions after the organization of the Federal Government stenographers never came within the bar, and their positions during that period were as remote from the members as at present. Yet if any man would appeal to the debates then taken, he would find them as correctly taken as they have been at any time since. It is true, there were complaints of inaccuracy, but the debate takers never assigned, as a justification of their errors, the inconvenience of their situations; on the contrary, they declared that they did as well as they could, and contended that their reports were as correct as the nature of the case permitted. When the seat of Government was transferred to Philadelphia, and the stenographers occupied places within the bar, complaints increased, the debates were taken more incorrectly, and two or three of the stenographers were actually turned out of the area within the bar; one of whom, he believed, was sent into the upper gallery. The incorrectness of the published debates did not arise so much from an inability to hear as from an inability to take down a rapid speech. Mr. T. said he believed the debates as taken down by Mr. Lloyd, were as accurately taken as any taken before or since. The conclusion he drew from these facts was, that if the stenographers were admitted by the House within the bar, the public would gain nothing by it. He had, however, no objection to their admission, if the Speaker approved it. They might, as far as he cared, take any place in the House; even seats alongside of the Speaker. Mr. DAVIS had expected to hear substantial reasons in support of the report of the committee. None such had been offered. It was said that the stenographers could hear very well from their present positions. He denied it. The reporter could not possibly hear. Though himself nearer the gentleman, he had not heard a word that fell from the gentleman from North Carolina. He trusted the House would admit the stenographers within the bar. If not admitted, the conversation and passage of the members around them will at once prevent the debates from being well taken, and be a perpetual excuse for their errors. But if admitted, they will have no such apology, and they will be within the power of the House. The great mass of our citizens are too remote to attend your debates. They rely on those who report them. Not more than forty or fifty persons transiently appear in the galleries, who are not equal to diffusing a knowledge of your proceedings. Exclude the stenographers, and you may as well shut your doors. It may be said that you print your journals; but who reads them? They are scarcely read by the members themselves. On great national questions the people ought to know, not only what you do, but also the principles that guide you. The gentleman from South Carolina was willing to place the stenographers under the coercion of the Speaker, but was unwilling to place them under the coercion of the House. For his part, he thought differently. He did not wish to see them at the mercy of the Speaker. Several allusions had been made to the treatment of a reporter at Philadelphia, who had been driven from the House by the Speaker. He recollected the affair, and, in his opinion, the Speaker had in this case been actuated more by personal enmity, than by any other motive. Mr. H. LEE next rose. He said he put it upon the candor of his colleague from Virginia to declare whether, in his opinion, any gentleman in that House wished to suppress his sentiments, or was disposed to shrink from an avowal of them. If an individual were to judge from the debate of to-day he would infer that it was the desire of some members on that floor to conceal their sentiments from the people. No such thing was the case. We are as anxious as those who differ with us that the people should know what we think, say, and do. The only question was, whether the Speaker shall exercise a certain power which he can conveniently, and which he has hitherto honorably exercised, or whether we shall assume it with all its inconveniences. He hoped we should not. He feared no inaccuracy so long as the debates published received no sanction from the House. Have you, said Mr. L., no greater objects to engage your attention than whether this man or that man shall go out of your bar, or remain within it? He thought the House might be better employed. Mr. MACON understood the subject before the House very much as his colleague did. The question was simply whether we will take upon ourselves inconveniences alleged to exist, or keep the stenographers without the bar. He was convinced that the situations occupied by the stenographers were badly calculated for hearing, as even within the bar the members could scarcely hear each other. One reason had great weight with him. It was, that if the House made a rule in relation to the admission of the stenographers, it would be placing law in the room of discretion. He preferred a certain rule to a vague discretion. The danger apprehended from a crowd of stenographers was farcical. Since he had been in Congress he had never seen more than three or four. And if the number admitted should prove inconvenient, it would be time enough, when the inconvenience was experienced, to remedy it. Mr. S. SMITH said the question was entirely one of inconvenience. He would not ascribe to any member a desire to suppress his sentiments. The speeches never went forth as delivered. Yet it was desirable to assign to the stenographers the most convenient places. He had heard gentlemen on both sides of the chair declare they would experience no inconvenience from the admission of the stenographers. For himself, from his situation, he could experience none. He believed, indeed, that the members could be heard from any part of the House, and nearly as well in one place as in another. But as other gentlemen hold a different opinion, and the stenographers had hitherto been admitted within the bar, he had not the least objection, and would vote for their admission. In this stage of the debate, the SPEAKER arose, not, he said, to inquire into the consequences of the House acting in the business, but again to repeat the line of conduct he had pursued, and the motives which had influenced his conduct; he did this for the information of members not in the House at the time he had before addressed the House. The SPEAKER then repeated what he had before stated, viz: that on being appealed to by Mr. Stewart, he had declared to him his decision before any other application had been made; that he had spoken to many members, all of whom, without a single exception, had approved his ideas, and concluded with again declaring, as he had before declared, that the stenographers could not be admitted within the bar without violating the order of the House and the convenience of the members. It was, he said, for the House to decide--to them only was he responsible. Mr. NICHOLAS understood it to be the object of those who supported the admission of the stenographers within the bar to place them upon the same footing they had heretofore held. This was his object. All the remarks, therefore, made respecting their independence of the Chair, were inapplicable. They would still be subject to his control, except as to the single point of situation. In short, the business would be restored to its old form. His colleague had made an appeal to his candor. He wished to know whether he (Mr. N.) thought that he or any other gentleman in that House wished to suppress his sentiments, or was disposed to shrink from an avowal of them? He would answer the appeal made by his colleague, and would tell him that he did not feel himself at liberty to form conjectures respecting the opinions of others, but decided from facts. If he heard gentlemen make use of arguments so weak as those he had heard that day in defence of their sentiments, he would say that their feelings differed essentially from his. He would say that, judging them by their arguments, they do not wish publicity to be given to the debates of this House. What do the gentlemen tell us? Does it not amount to this: that their complaisance for the Speaker suffers him to judge for them in a case where they are the best judges; and would not this complaisance go to this length, that if the Speaker should judge wrong, they will not interfere to correct his error? We are told by a gentleman just up, that the application made proceeds from pride, and that it can proceed from nothing else. But the gentleman has not assigned his reasons for this extraordinary charge. It is contended that any place without the bar will be convenient for the stenographers. Let the place be pointed out. Let the gentlemen who urge this show us a place without the bar inaccessible to the whispers of the members and the pressure of a crowd. Do they imagine that any particular place can be assigned to which they can ensure a profound silence, and from which every person can be withheld? Do they not know, have they not experienced, that when business presses, when subjects of importance are discussed, a crowd is produced, noise ensues, and interposing obstacles render it impossible either to hear or see the members? In such cases, by far the most interesting that can occur, a recess within the bar can be their only protection. The gentleman from Massachusetts had put the business upon a very extraordinary footing--a footing that he did not expect from him. He represented that it would be safe to trust the reporters to the Speaker's indulgence. For his part, he did not think it would be safe in such hands. Shall the Speaker have the discretion of saying what debates shall be taken and what shall not? Shall he, and he only, have the public ear? Could the Speaker desire this? Surely he could not. He ought rather to desire the House to decide generally than thus impose upon him such an invidious task. Mr. N. said, he considered those who report the debates as appearing in this House on behalf of the people of the United States, to whom they communicated what passed here. The people were entitled to this information; and if, as observed by the gentleman from Massachusetts, either foreign Ministers or Secretaries, or any other gentleman in long robes, interfered with such an object, they ought to give way. He knew not wherein consisted the propriety of assigning them particular seats. What right had they to exclusive seats? He knew no connection that subsisted between them and this House. Be the right as it may, he was not for sacrificing a solid benefit to mere complaisance. But a gentleman has told us that one stenographer, for his misrepresentation and insolence, had been discharged by the Speaker. In the course of debate, Mr. N. said, he had studiously avoided any allusion to this circumstance. Nor would he now say any thing about it, as he thought it altogether foreign from the present question. The respect which gentlemen expressed for the Speaker appeared to him to lead them from the object they professed to have in view. For, at present, the stenographers are not under the control of the Speaker. But admit them within the bar, and if they are guilty of misconduct, if they infringe any of the rules of the House, the Speaker has them within his power. Some gentlemen apprehend the admission of a crowd of stenographers. The thing is morally impossible. When Congress met in a large populous city, where several daily papers were printed, we saw but two reporters. Here, removed from the busy world, where the demand for that description of labor which arose from publishing the debates was not nearly so great, and, of consequence, the profit less, it could not be expected that there could be more. Mr. N. concluded by declaring that, in his opinion, it was the duty of the House to decide in this case. The Speaker had changed the established practice of the House. It became, therefore, the House to inquire whether he had done what he ought to have done; which, if he had omitted to do, it devolved on them to see effected. Mr. WALN spoke in favor of the adoption of the report. The question was then taken by yeas and nays, on agreeing to the report of the select committee, and carried by the casting vote of the Speaker. There being yeas 45, nays 45, as follows: YEAS.--Theodore Sedgwick, (Speaker,) George Baer, Bailey Bartlett, John Bird, John Brown, Christopher G. Champlin, William Cooper, William Craik, Samuel W. Dana, John Davenport, Franklin Davenport, John Dennis, William Edmond, Thomas Evans, Abiel Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, William Barry Grove, Archibald Henderson, Benjamin Huger, James H. Imlay, John Wilkes Kittera, Henry Lee, Silas Lee, James Linn, Lewis R. Morris, Harrison G. Otis, Robert Page, Josiah Parker, Jonas Platt, Levin Powell, John Read, Nathan Read, John Rutledge, jr., John C. Smith, Samuel Tenney, George Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis, John Dawson, George Dent, Joseph Dickson, Joseph Eggleston, Lucas Elmendorph, Samuel Goode, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, William H. Hill, David Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Randolph, John Smilie, John Smith, Samuel Smith, Richard Dobbs Spaight, Richard Stanford, David Stone, Thomas Sumter, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Lyttleton W. Tazewell, Philip Van Cortlandt, and Joseph B. Varnum. WEDNESDAY, December 10. Another member, to wit, MATTHEW LYON, from Vermont, appeared, and took his seat in the House. _Mausoleum to Washington._ The House went into a Committee of the Whole on the bill for erecting a Mausoleum to the memory of GEORGE WASHINGTON. Mr. ALSTON was in hopes, when he first made the motion now under consideration, that a question would have been taken upon the amendment without debate; but, as his wish upon that subject had not been complied with, he held it to be his duty to give to the House the reasons which actuated him. He said that he by no means wished to detract any thing from the merit of that illustrious character whose memory we were now about to perpetuate; that it was his wish that his character might be handed to the latest posterity unimpaired, and that he really thought the amendment equally calculated to effect that desirable purpose with the bill; that the difference of expense was a matter of importance to the people of this country; that the expense of a mausoleum, from the best information he had been able to collect, would amount to at least 150 or $200,000; that a monument, such as was contemplated by the amendment, would not cost more than one tenth as much as a mausoleum, as contemplated by the bill as it now stood. Indeed, he believed that the bare expense of interring the remains of General WASHINGTON in a mausoleum would cost as much as the proposed monument. Mr. A. said he considered Congress pledged, as far as the resolution of the last session went; that the gentleman from Massachusetts, (Mr. OTIS,) who was up a few day ago upon this subject, had requested information; in answer to which he had only to observe that if that gentleman would have given himself the trouble to have examined the proceedings of the last session of Congress he would have been better informed than he appeared to be; that a committee equally respectable with that which had reported the bill at the present time, had then fully investigated the subject, and had made a report, which was to be found upon the journals of the last session of Congress, recommending a monument such as was contemplated by the proposed amendment, and that the request made by the President of the United States to Mrs. Washington, in conformity to the report of that committee, was for a monument; to which request she had consented; he, therefore, considered Congress as pledged thus far and no farther; that a motion was made in this House to change the monument to a mausoleum; that the recent death of General WASHINGTON at that time, prevented any person from opposing any measure which was offered, let the expense be what it would; but that the time which had elapsed since, had enabled the public mind the better to judge. The gentleman from Virginia (Mr. LEE) and the gentleman from Connecticut (Mr. GRISWOLD) had dwelt a great deal upon the subject of public gratitude. It was by no means his wish or intention to lessen that sentiment, but he said that he could not give his consent to an expensive measure like that contemplated in the bill, when a measure far less expensive, in his opinion, would answer every purpose as well. Mr. ALSTON was followed by Mr. HUGER, who advocated the erection of a mausoleum. Mr. SMILIE replied. He considered the erection of a mausoleum as productive of unnecessary expense, as a monument would answer every rational purpose contemplated in the bill. Mr. H. LEE next spoke at some length in favor of a mausoleum, and read a letter received from Mr. King, our Ambassador at London enclosing a plan, presented to him by an eminent foreign artist, for a mausoleum of one hundred and fifty feet base, and the same height, the expense of which was estimated at $170,000. Mr. CHAMPLIN, after some remarks, moved that the committee rise, report progress, and ask leave to sit again. Which motion being carried without a division, the committee rose; and on the question to grant them leave to sit again, only three members rose in the affirmative. Mr. CHAMPLIN then moved the recommitment of the bill to the same committee that reported it, with the addition of two members, which was carried, and Messrs. CLAIBORNE and CHAMPLIN appointed. After Mr. CHAMPLIN'S motion for a recommitment of the bill to a select committee was carried, Mr. CLAIBORNE said he had risen to move that the committee just appointed be instructed to inquire into the expediency of carrying into effect a resolution passed by the old Congress, on the 7th of August, 1783, directing an equestrian statue of General WASHINGTON to be erected at the place where the residence of Congress shall be established. Mr. C. said, that on a question which could not fail to excite the sensibility of every American heart, it was a subject of great regret that a division of sentiment should arise. The memory of our departed patriot lives in the affections of a grateful country, and will triumph over time. During a long life, so usefully and honorably employed, WASHINGTON had reared to himself a fabric of fame, the lustre of which can neither be diminished nor heightened by any measure that we can take. But, sir, from a respect for our own, as well as for the feelings of the nation, we should endeavor to unite in the last act of attention which we propose to show this venerable character. Mr. C. said that the proposition for a mausoleum was calculated to create division. The expense of such a monument would be immense, and would be viewed by many as a profuse and useless expenditure of the public money. He believed that the statue recommended by the old Congress could be better justified upon principles of economy, and would meet with more general support. Here Mr. C. read from the journals of the old Congress the following resolutions: "_Resolved_, (unanimously, ten States being present,) That an equestrian statue of General WASHINGTON be erected at the place where the residence of Congress shall be established. "_Resolved_, That the statue be of bronze--the General to be represented in a Roman dress, holding a truncheon in his right hand, and his head encircled with a laurel wreath. The statue to be supported by a marble pedestal, on which are to be represented, in basso relievo, the following principal events of the war, in which General WASHINGTON commanded in person, viz: The evacuation of Boston--the capture of the Hessians at Trenton--the battle of Princeton--the action of Monmouth--and the surrender of York. On the upper part of the front of the pedestal, to be engraved as follows: 'The United States in Congress assembled ordered this statue to be erected, in the year of our Lord, 1783, in honor of GEORGE WASHINGTON, the illustrious Commander-in-chief of the Armies of the United States of America, during the war which vindicated and secured their liberty, sovereignty, and independence."' A monument thus designed, (continued Mr. C.,) would portray in lively colors the military achievements of our late illustrious Chief, and is calculated to impress upon our posterity a grateful recollection of his eminent services. Mr. C. was the more interested in support of a monument of this kind, because it had been sanctioned by a unanimous vote of those venerable philosophers and statesmen who presided in our councils, at a time of the greatest danger, directed the storm of war, and tamed the rage of tyranny. It was true, that this equestrian statue would not express any of the great events of WASHINGTON's civil life, but, of these, we have already many honorable testimonials; the first in order, and which he hoped would be the last in durability, was the Constitution of the United States; to this instrument his name was annexed, and would be noticed with gratitude by the lovers of freedom in every age and every clime; this city is another memento of his civil life, and, if it should be the residence of all that piety, wisdom, and magnanimity, which was so devoutly prayed for by each branch of the Legislature, at the commencement of the present session, this city would remain an honorable testimonial of the civil virtues of its great founder. There was no doubt, said Mr. C., but that many gentlemen were also solicitous that the body of General WASHINGTON should be deposited within the walls of the Capitol; of this number Mr. C. was one, and was desirous that a plain but neat apartment should be speedily prepared for its reception. But over his remains, instead of an expensive monument, Mr. C. thought it most advisable to place a plain but neat tomb-stone, of American marble, and prepared by an American artist. And in order to convey to posterity, in impressive language, the feelings of the American nation, when the loss of our patriot, sage, and hero, was first announced, Mr. C. wished to see engraved upon this tomb the addresses of each House of Congress upon this occasion to the President of the United States, together with the President's replies thereto. Mr. C. concluded by moving the instructions stated in the commencement of his speech. Mr. CLAIBORNE was followed by Messrs. CRAIK and NOTT. The instruction to the committee, moved by Mr. CLAIBORNE, with a slight modification, was agreed to. MONDAY, December 15. Another member, to wit, THOMAS PINCKNEY, from South Carolina, appeared, and took his seat in the House. THURSDAY, December 18. Another member, to wit, JAMES SHEAFE, from New Hampshire, appeared, and took his seat in the House. FRIDAY, December 19. _Mausoleum to Washington._ Mr. H. LEE, from the committee to whom was referred the several propositions made commemorative of the services of GEORGE WASHINGTON, reported a bill for the erection of a mausoleum, differing in no other respects from the former bill reported, except as to the materials of which the mausoleum is to be constructed; the present bill directing it to be made of stone, the former one directing it to be made of marble. He said that the committee, after maturely considering the relative merits of all the plans proposed, had preferred the mausoleum, as well from its superior durability as cheapness, to any other. TUESDAY, December 23. _Mausoleum to Washington._ Mr. H. LEE moved the going into a Committee of the Whole on the bill for erecting a mausoleum to GEORGE WASHINGTON. On this question the House divided--yeas 42, nays 34. Mr. MORRIS took the chair, and read the bill by paragraphs. Mr. H. LEE said the merits of the bill had been so often discussed, and the subject was so delicate, that he would not again offer his sentiments generally on it. As it was the opinion of several members, that the dimensions of the mausoleum should not be fixed in the law, but that they should be governed by the sum appropriated, he moved to strike out "100 feet at the base and of proportionate dimensions." The motion was agreed to. Mr. H. LEE then moved an amendment confining the ground on which the mausoleum should be erected to public property. Mr. HARPER opposed the amendment, which was lost, only 31 members rising in favor of it. Mr. H. LEE then moved to fill the blank, fixing the sum to be appropriated for erecting the mausoleum, with $200,000. Mr. SMILIE said he hoped the House would not with its eyes open go into a measure that might involve incalculable expense. It was proposed to appropriate $200,000. This was probably but a small part of what would be ultimately required; and when the thing was once begun, it must be completed, cost what it would. If the architect would give security for accomplishing the work for $200,000 he would not be so much opposed to it. But, as it stood, he was opposed to it, as a useless expenditure of public money. Mr. HARPER said the old story was again rung in their ears. An object, in itself highly important, was proposed, and, forsooth, because it cost some money, on the ground of economy it must be rejected. He would ask the gentleman just up whether he knew any thing about the expense of a mausoleum? And yet not professing to be informed, professing indeed to know little, he had put his vague conjectures in the room of estimates formed with deliberation by artists of the first eminence. These clamorous objections were well understood. Their sole object was _ad captandum vulgus_; to create alarm about what was termed useless expense. They were intended for nothing else. To satisfy the solicitude of gentlemen an artist of talents universally acknowledged had been desired to furnish an estimate; which estimate stated that a pyramid of 100 feet base would cost $67,000. This was the estimate of an artist of such accuracy that in the greatest work ever undertaken in America, and the greatest, perhaps, of its kind, ever undertaken in the world, (he alluded to the water works of Philadelphia,) the expense actually incurred had fallen short of the estimate. The same accuracy had characterized his plan and execution of the Bank of Pennsylvania, which was probably the greatest work of the kind executed in this country. And yet the gentleman from Pennsylvania will place his vague doubts, and (Mr. HARPER begged pardon for the expression) his total want of knowledge against the calculations of a man of practical science. The gentleman had asked whether any one could be found, who would be responsible for the execution of the work for the proposed sum. Mr. HARPER said, if it were proper for a member of that House to say so, he would undertake himself to erect a mausoleum of 150 feet base, and 150 feet high, for $200,000; and for the performance of his engagement he could give the most unquestionable security, such as every member of that House would approve. He further believed that the artist before alluded to, if required, would give the necessary security. The accuracy of the estimate had been tested by every circumstance that the nature of the case admitted. The same course had been pursued, in this case, that every reasonable man was accustomed to take in his own private concerns. Every such individual, who designed building a house obtained first an estimate from a skilful workman, which satisfied him. If men acted not in this way, there could be no progress in human improvements. After this information, furnished by such an artist, gentlemen ought to be satisfied without opposing to it their own crude conceptions; and Mr. HARPER said he hoped they would cease to talk on a subject on which they were so ignorant, until they became better informed. Mr. MACON did not see the subject in the same light with the gentleman from South Carolina. He was disposed to pay the greatest respect to his talents, but he could not give up his own opinion. The estimates made by the artist amounted to $140,000; yet the gentleman from Virginia required $200,000. Does not this show that the gentlemen themselves have not confided in the estimate of the artist? Mr. H. LEE explained, and said that he thought the most proper plan for adoption was that of Mr. West; pursuing that plan, $200,000 might be required, as there would be interior arrangements to make, additional to those contemplated by the estimate. Mr. MACON said he thought $140,000 would be sufficient. He knew not how to reconcile the difference between the estimate made in Philadelphia and that made in Washington; the first was only $67,000; which was a sum much below any calculated here. He did not pretend to any information on this subject, and the various modifications the bill had undergone, convinced him that no member was well acquainted with it. The estimates differed materially from each other. They could not therefore all be correct. He could not, from these considerations, feel confidence in the estimates of the gentleman from South Carolina, or the other gentleman; for if they really possessed correct information, how came they so radically to differ; and the committee itself to propose so many alterations in the original bill? Mr. SMILIE replied to Mr. HARPER. The object of his remarks was, to show that Mr. H. possessed as little information on the subject as himself. Mr. RUTLEDGE.--The substance of what the gentleman says, is that he wants to do nothing. He had long thought so, and he was now confirmed in his opinion. When the man, whose loss the world deplored, departed from us, we were all shrouded with sorrow; the mournful event awakened our deepest regrets; and resolutions expressive of the national affliction at his death, and commemorative of his services, were unanimously passed by both Houses of Congress. Those resolutions were not carried into immediate effect, owing to the disagreement of the two branches of the Legislature. Now, when we propose to carry them into effect, objections are started to every measure offered; objections that rise eternally in our horizon; which, whenever we pursue, fly from our reach, and which, always moving in a circle, we can never overtake. Gentlemen tell us they are unaccustomed to spend public money without estimates. To satisfy the vigilance of their economy we obtain them. They then tell us they are inaccurate; their objection arises from a want of detail; they wish a minute statement of each separate charge. Again, we consent to gratify their wishes, anxious for their sanction to our measures, that they may express the unanimous sentiment of Congress. We produce an estimate as minute as was ever furnished by an artist on any occasion. The total amount of estimated expense is $140,000, and to avoid the necessity of calling on Congress again, the gentleman from Virginia asks for $200,000. Still, after all our trouble and solicitude to satisfy the scruples of gentlemen, they continue to urge objections. One gentleman says the estimate made at Philadelphia differs from that made here; another gentleman will not confide in any estimate, and another wants security. Does it become the dignity of the House thus to be occupied with trifling objections on such a subject; and, in the spirit of bargaining, to waste its time in saving a few dollars? Many gentlemen, anxious for this measure, had agreed to postpone the consideration of it, hoping thereby to accommodate other gentlemen in their views, and expecting ultimately a unanimous vote. But he now abandoned it. He saw no period to objections. Much time had already been idly wasted. They had delayed too long to do what ought to have been done at once. Let us then take the question at once, and get rid of it, though a veto should be passed upon the bill. The question was then taken on filling up the blank with $200,000, and carried--yeas 41, nays 38. Mr. DENT moved to amend the section appropriating the sum, by substituting the word "for," in the room of the word "towards," which would fix the whole sum to be appropriated, instead of leaving it uncertain. Agreed to. The committee then rose and reported the bill as amended. On the question to agree to the $200,000 appropriated, the House divided--yeas 41, nays 38. The SPEAKER then put the question on engrossing the bill for a third reading. Mr. CLAIBORNE was opposed to the engrossing of the bill. He hoped no gentleman would ascribe his opposition to a want of respect to the memory of our great patriot. His respect for this illustrious character had been almost coeval with his life, and would follow him to his grave. He was opposed to a mausoleum, because it would not be so respectful to the memory of WASHINGTON, as the equestrian statue directed by the old Congress, who had directed the battle during our Revolutionary struggle, and for whose character he felt the highest veneration. The present Government could not refuse to carry into effect this act of the old Congress, without a violation of moral principle. He preferred a statue to a mausoleum, because the former, from representing the form and the features, would inspire the beholder with more lively emotions than a mass of stones formed into a pyramid. Were the expense of a statue greater than that of a mausoleum, he would, notwithstanding, prefer it; but he believed the reverse would be the fact. He not only wished a statue raised, but also was in favor of an immediate appropriation for depositing the remains of our departed friend within these very walls, in such a manner as would not disgrace them. Mr. CHAMPLIN had heretofore voted from a spirit of conciliation. He was now not a little surprised to find the gentlemen from Tennessee and South Carolina (Mr. CLAIBORNE and Mr. ALSTON) opposed to a mausoleum, though their names appeared, from an inspection of the journals of last session, among those who were then in favor of it. He considered a mausoleum as preferable to a statue, because the first was calculated to celebrate all the virtues of the statesman, as well as the hero, while the latter would be limited to his military exploits. Great opposition had been made to the erection of a mausoleum, with the professed view of avoiding expense, and I admit generally that economy ought to be observed, in the expenditure of public money. But on an occasion highly interesting to the feelings, and deeply involving the character of the nation, even the appearance of parsimony should be carefully avoided. It is necessary to consider the nature and magnitude of the object for which money is required. It is not asked for, in the present instance, to commemorate a man distinguished only on the field of battle. It is not wanted to gratify family pride, or to raise a monument of despotic power and slavish submission. It is to be furnished by a great and free people, to record, in a manner worthy of themselves, their gratitude for the important services rendered to them by one of their fellow-citizens; the fruits of which I cannot but hope will be enjoyed and recognized by future generations. We are called upon by the public voice to erect a monument suited to the character of WASHINGTON, who has been emphatically styled, _the man of the age_, and whose virtues may, by the record we shall make of them, become the property of distant ages. These virtues will doubtless be the theme of some able biographer, and it is wished that posterity may not search in vain for some striking evidence of our acknowledgment of them. It is indeed of infinite importance to civil society, that the memory of that great man should be perpetuated by every means in our power. We may thus sow the seeds of virtue, honor, and patriotism, in our country. He will be held up a model, to which the finger of wisdom will constantly point, to which the attention of youth will be irresistibly drawn, and the mind of every man aspiring to pre-eminence among a free people, will be riveted. The proposed mausoleum would be a structure well calculated to resist the ravages of time. As to the hand of man, at least of civilized man, we need not guard against it. The depository of the ashes of WASHINGTON will never be assailed by it. It may indeed be attacked by the ruthless hand of some invading barbarian. But its only security against such an attack must be derived from the courage and fortitude of the people of the United States. And I trust they will never tamely yield up the land of their forefathers. Mr. BIRD was against the bill, because it proposed the erection of a mausoleum, which would not be equal to the object for which it was raised without the expenditure of a vast sum of money; whereas a statue could be made, somewhat correspondent to the occasion, for a moderate sum. It was in vain for gentlemen to talk about a structure commensurate to the object. Such a thing was impossible. He moved the recommitment of the bill to a Committee of the whole House. The question being put, the House divided--ayes 39, noes 39; and it passed in the negative by the casting vote of the SPEAKER. Mr. SHEPARD said, I will do as much as any man to honor the memory of WASHINGTON. I have fought and bled with him several times. I have always supported and will continue to support him. But on the score of expense, I think we are going too far. I will go so far as to have his remains placed decently within these walls. Further I will not go; for I do not think we have a right to throw away the public money. Mr. MACON delivered his reasons against a mausoleum, and in favor of an equestrian statue; and among other remarks, said, the idea that a mausoleum would be equal to the character of WASHINGTON, was preposterous. Few individuals in the world were capable of drawing his character. In a few words, he would say that no character that had ever lived was equal to him, and it was his firm belief, that the world would never see his equal. Mr. BROWN thought General WASHINGTON the best man that had ever lived; and he was surprised at the ideas of gentlemen on the ground of expense. If the mausoleum were agreed to, it would not cost each person in the United States four cents; and if the equestrian statue were also made, (which he hoped would also be done, for the sake of general accommodation,) it would not cost more than two cents. It seemed to him that some gentlemen were averse to doing any thing, though they did not wish the people to think so. Mr. ALSTON would not have risen, had he not been marked by the gentleman from Rhode Island as an object of inconsistency. Mr. CHAMPLIN explained by saying he did not mean to censure the gentleman for his change of opinion, for which he doubtless had good reasons. Mr. ALSTON.--Let the measures of Congress be reviewed, and it would appear, that the House itself and the gentleman from Rhode Island had been as inconsistent as himself. He would appeal to the gentleman whether it was more honorable to desert his duty and fly a vote, than to act as he had done? Mr. HUGER said it was unnecessary at this time to take into view the old arguments that had been urged. The proposition of the gentleman from Tennessee, for an equestrian statue, was the only one he should notice. So impressed was he with the inadequacy of a common statue to express the gratitude of America, that he would rather have nothing done, than to have what was done in this backhanded way. He was disposed to treat with respect the acts of the old Congress. But the act, to which the gentleman from Tennessee had alluded, and which he wished this House exclusively to carry into effect, was passed in reference to the military exploits of Gen. WASHINGTON, because, at the time it was passed, his life had been most characterized by them. Since that period circumstances had changed. If we are bound by the acts of the old Congress, are we not equally bound by those of the last session? If you adopt the ideas of the gentleman, do you not hold out the Commander-in-chief of the American Army as deserving a splendid monument, and the father of the constitution and other great civil acts as deserving nothing? Without any concert whatever, a remarkable concurrence had taken place between West, Trumbull, and other respectable artists, who all gave an unequivocal preference to a mausoleum; which, in his opinion, would be far less expensive than a statue. The expense of the latter, as would appear from an estimate in the office of the Secretary of State, could not be less than forty thousand guineas, deliverable at Paris; and when the additional charges of transportation, insurance, and other incidental expenses, were considered, he was persuaded it could not be completed for less than two or three hundred thousand dollars. Mr. J. C. SMITH considered the Government as pledged to do that which they had promised, and which the national feeling required. Mr. RANDOLPH must consider the present as a tedious and useless debate. The gentleman had declared the Government to be pledged. To whom were they pledged, and for what? It was to the relics of the deceased; to have them placed within these walls. For this, there were the strongest reasons, as such a measure would be agreeable to the venerable lady to whom he had been united. If then they were so pledged, why violate this pledge, by referring the business to the Secretary of State, of the Treasury, of War, and of the Navy; though what connection there was between the office of the Secretary of the Navy and the performance of the trust, he could not tell? One consideration with him was insuperable. The departure from the original plan tended, unjustly, and most cruelly, (however pure the intention,) to violate the feelings of a lady, so much troubled already. Mr. J. C. SMITH said it had been declared by some gentlemen that the reputation of WASHINGTON might be safely confided to the record of history. Was it the opinion of those gentlemen that the record was to be found in the charge of murder against that illustrious character? Was it to be found in the patriotic effusions of men who had pronounced all expressions of national gratitude a mockery of woe, and had declared that it was high time for those who were the sincere apostles of liberty to be done with such foolery; or was it to be found in the denunciations of a printer, supported by a State that perpetually boasted its regard to Republicanism? Mr. HARPER could not but regret that a gentleman, who possessed so lively a regret for the venerable lady alluded to, should have exhibited in this discussion so glaring a contrast between his professions and his actions, by introducing that lady into the debate, and indelicately expressing her wishes, in reference to the place where the relics of her deceased partner should be deposited. Was it conceivable that to her the place could be of any importance? Or was it possible that this House could be enslaved by the trifling circumstance of the _locus in quo_, or that the paltry consideration attending an action of trespass could be gravely introduced into such a debate. All that this venerable lady says amounts to this, that, accustomed from the example of her deceased friend to obey the national wishes, she submitted to that disposition of his remains that Congress may make. Shall we, then, in violation of the plain meaning of her words, enter into whispers of hearsay respecting wishes, which, from his knowledge of her good sense, he was persuaded had never been uttered? Mr. RANDOLPH rose to explain. He had neither said, nor intended to say, that he possessed any knowledge beside that which appeared on the journals; and from that knowledge he was justified in saying that Mrs. WASHINGTON'S compliance, as expressed by her, was not with any public will that might be expressed, but with that will which had been already expressed. Whatever insinuations the gentleman from South Carolina may mean to convey, his feelings of respect for every woman were sacred; nor were they limited to that sex alone. He was not disposed on this occasion to take the advice of the gentleman, who judging me by his own heart, said Mr. R., may imagine me capable of disrespect to the sex. Mr. HARPER wished the gentleman would avoid any further interruption, and reserve his remarks until he was done. He did not know, nor was he concerned to inquire into the motives of the gentleman from Virginia. Such inquiry would, of all others, be the least profitable or interesting, either to the House or to himself. Neither had he any idea of giving advice which that gentleman would follow. He well knew that it was the most hopeless of all things to give advice to one whose own sense of propriety did not tell him what was right. Those, who were incapable of receiving lessons from their own minds or feelings, were not likely to receive them from any other quarter. The feelings ascribed to Mrs. WASHINGTON were unfounded. The lady was incapable of entering into trifling disputes about place or time, such as the House had this day witnessed. The arguments, by which the superiority of a statue to a mausoleum was attempted to be established, were fallacious. The form and features of our illustrious friend would be preserved without the erection of any statue by us. Pictures by celebrated artists were every where multiplied and caught at with avidity; and the sculptor and the painter will be employed unceasingly to keep pace with the increasing demand. Likenesses may be found every where, and as perfect on the other side of the Atlantic as on this. A mausoleum would last for ages, and would present the same imperishable appearance two thousand years hence, that it would now. Whereas a statue would only remain until some civil convulsion, or foreign invasion, or flagitious conqueror, or lawless mob, should dash it into atoms; or till some invading barbarian should transport it as a trophy of his guilt to a foreign shore. I have beheld, said Mr. H., a monument erected to a man, once considered as the patron of America, defaced, mutilated, its head broken off, prostrated with the ground. A statue, erected by the Legislature of Virginia to perpetuate the virtues of a man to future ages, had been destroyed. Besides, a statue was minute, trivial, and perishable. It was a monument erected to all that crowd of estimable but subordinate personages, that soar in a region, elevated indeed above common character, but which was infinitely below that occupied by WASHINGTON. The greatest honor which this country ever has received, the greatest honor which it ever could receive, was derived from numbering with its sons the immortal WASHINGTON. Shall then a mistaken spirit of economy, and a still more mistaken jealousy arrest us? Honor him, it is true, we cannot. The world has charged itself with that task. Posterity, as long as the world shall endure, will celebrate his virtues and his talents; those virtues and talents of which every ingredient of their happiness will be a perpetual evidence. But though we cannot honor him, we may dishonor ourselves; though we cannot increase the lustre of his fame, we may show our own meanness, cowardice, spite, and malice; and show an astonished world that we are deplorably unworthy of the high honor conferred by Nature in giving us a WASHINGTON. I am, said Mr. H., awfully impressed by the subject. I sink under the sublimity that surrounds it. No words can reach it; mine are totally inadequate; to the feelings of the House then it must be submitted: they, after anticipating all that genius or eloquence can say, will still far surpass their boldest effusions. Mr. RANDOLPH was very unfortunately situated, as he was compelled to rise, not in his own defence, but in defence of the calumniated reputation of that State which he revered, since from it he derived his birth. I will not, said Mr. R., enter into an elucidation of the motives of the gentleman from South Carolina, which have produced so much asperity, and such a virulence of rancor against the State of Virgina, but will confine myself to the question on engrossing the bill. The gentleman has talked to us about his disregard for the _locus in quo_. Mr. R. said he cared as little for the _quo modo_, as the gentleman did for the _locus in quo_. He had further told us that a statue might be overthrown by a licentious mob; and that this had actually been the case in the State of Virginia. But, why had it been so? Because that statue had been erected in the life-time of the person it celebrated; because it had been erected under the Colonial Government; and because, like every other fetter of tyranny, it was broken by the Revolutionary spirit that established our liberties. But, says the gentleman, statues are raised for subordinate men, for this admiral or that general, who may deserve well of their country, but who do not merit the highest distinctions of national gratitude. If this measure of raising a mausoleum is to be only a cover for obtaining statues for temporary and secondary and trifling characters, it may have a very alarming influence upon us. It is not easy, for a man of even less sensibility than myself, to hear in silence the State in which I was born, and one of whose Representatives I am, calumniated in the manner in which it had been that day, by the gentlemen from Connecticut and South Carolina. In defence of that State, actuated by a love to it, and not from any respect to its detractors; not to repel any imputation of meanness, of cowardice, of malice, which the gentleman from South Carolina has called ours, (meaning, I suppose, his own,) I will inform him, and the gentleman from Connecticut, that that State was the first to celebrate the fame of the Hero of America, by erecting a statue to him in the Capitol at Richmond. The gentleman from Connecticut objects to a confidence in the record of the historian. Does the gentleman wish to suppress the history of the political events of 1776? Or does he believe that these events will be handed down in association with the bloody buoy, and Porcupine's works? Perhaps he has formed from his own mind a proper selection for our children, and is against the press handing down any thing else? Mr. H. said, that the gentleman from Virginia had misstated what he had said. He had cast no reflection on the State of Virginia; but had barely stated two instances of statues overthrown and destroyed, to illustrate their frailty. During the preceding debate, Mr. CLAIBORNE stated that the committee to whom this subject had been committed, had obtained several estimates; among which was one in writing, by Dr. Thornton, which states with confidence that the expense of an equestrian statue would not exceed from eight thousand to fifteen thousand pounds currency. After some remarks from Mr. SHEPARD and Mr. LYON, the yeas and nays were taken on engrossing the bill, and were--yeas 44, nays 40, as follows: YEAS.--George Baer, Bailey Bartlett, John Brown, Christopher G. Champlin, William Cooper, William Craik, Franklin Davenport, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Jonathan Freeman, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Archibald Henderson, William H. Hill, Benjamin Huger, James H. Imlay, John Wilkes Kittera, Henry Lee, Lewis R. Morris, Abraham Nott, Harrison G. Otis, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, Nathan Read, John Rutledge, jr., John C. Smith, Samuel Tenney, George Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, Theodorus Bailey, John Bird, Phanuel Bishop, Robert Brown, Gabriel Christie, Matthew Clay, William Charles Cole Claiborne, John Condit, John Davenport, Thomas T. Davis, John Dawson, Joseph Eggleston, Lucas Elmendorph, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, George Jackson, Aaron Kitchell, Michael Leib, Matthew Lyon, James Linn, Nathaniel Macon, Peter Muhlenberg, John Randolph, William Shepard, John Smilie, John Smith, Richard Dobbs Spaight, Richard Stanford, Thomas Sumter, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Lyttleton W. Tazewell, Philip Van Cortlandt, and Joseph B. Varnum. The third reading of the bill was fixed for Thursday week; when the House adjourned to Tuesday, the thirtieth. TUESDAY, December 30. _The Henderson claim to land guarantied by treaty to Chickasaw and Cherokee Indians._ Another member, to wit, ROBERT WILLIAMS, from North Carolina, appeared, and took his seat in the House. A memorial of Pleasant Henderson and others, inhabitants of the State of North Carolina, was presented to the House and read, stating their claims to certain lands ceded by the State of North Carolina to the United States, with a reservation of the claims of the petitioners; the possession of which lands the United States have since guarantied by treaty to the Chickasaw and Cherokee Indians; and praying relief in the premises. _Ordered_, That the said memorial do lie on the table. WEDNESDAY, December 31. _The Territory of Columbia._ On motion of Mr. H. LEE, the House went into a Committee of the Whole on the bill in relation to the Territory of Columbia. Mr. RANDOLPH moved to strike out the first section, which is in these words: _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That the laws of the State of Virginia, as they existed on the first Monday of December, in the year 1800, shall be and continue in force in that part of the District of Columbia which was ceded by the said State to the United States, and by them accepted for the permanent seat of Government; and that the laws of the State of Maryland as they existed on the said first Monday in December, shall be and continue in force in that part of the said District which was ceded by that State to the United States, and by them accepted, as aforesaid. Mr. H. LEE said, that he was far from considering this bill as an act of supererogation. The constitution had prohibited the States of Virginia and Maryland from legislating for the Territory; and it now became a question, whether the existing laws of those States were in force, which question might come before the Judiciary. To obviate all doubts, this bill, in the shape of a declaratory one, was reported. Mr. NICHOLAS said, this bill is not, in my opinion, merely an act of supererogation, but an act of immense mischief. I do not agree with my colleague in the construction he gives the constitution. He is of opinion, that the powers given to Congress on this subject must be exercised by them. I think differently. These powers are like many others conferred, which may or may not be exercised. It had never been contended that we are obliged to carry into execution all the powers with which we are invested. It is true, that we have nearly exhausted the letter of our charter, in the extent to which we have gone; but this fact furnished no reason for going still further. A construction contrary to that contended for had been given by Congress in the exercise of their power. The act of acceptance passed by Congress, confirming the cessions made by Virginia and Maryland, expressly declares, "that the operation of the laws of the State within such District shall not be affected by this acceptance until the term fixed for the removal of the Government thereto, and until Congress shall otherwise by law provide." Great force was attached to that part of the constitution which gave Congress exclusive legislation over the Territory. But the same clause of the constitution gave the same power over forts, magazines, arsenals, &c. Yet this power had never been assumed by Congress. The possession of the right had heretofore been considered as sufficient; the exercise of it was reserved until peculiar circumstances should occur, which rendered it necessary. I believe the committee are not prepared to sanction this bill. To sanction it would be to place the inhabitants of the Territory in a situation for which they would not be thankful. It would impose upon them all the laws of Virginia and Maryland, as they existed on the first Monday of December, without those improvements which experience may suggest. If this bill passed, it would leave a considerable portion of the inhabitants of the Territory without any judicial authorities to which they could appeal. There were parts of Fairfax, Montgomery, and Prince George's Counties, which would have no courts to which they could apply. Another consequence that would result from the construction attempted to be given to the constitution, was the deprivation of the inhabitants of all participation either in Federal or State legislation. As, by the construction, they would cease to be the subjects of State taxation, it could not be expected that the States would permit them, without being taxed, to be represented. Could any man desire to place the citizens of the District in such a state? To deprive them of the common right of participating in the passage of laws which all the citizens enjoyed? If the construction be sound, that we are bound to legislate, then all the judicial proceedings which had taken place since the first Monday in December, whatever affected either property or persons, were mere nullities. I do not, however, believe the construction to be sound. I believe it opposed both to the spirit of the constitution and to the construction hitherto given by Congress. But were the construction just, to adopt the proposed bill would be to act in a way inadequate to the importance of the subject, which, involving in it a system of government for a large portion of citizens, ought not to be acted upon with precipitation, but ought to be conducted by the collected wisdom of Congress derived from mature and deliberate reflection. Mr. H. LEE said, my colleague is wrong in supposing this bill a part of a permanent system. It is only intended to cure an evil which some persons have supposed to exist, from the doubtful jurisdiction of the States of Virginia and Maryland. Mr. OTIS said, though I respect the talents of the committee who brought in the bill, yet I cannot discover that it contains a single new view or provision. Though I am myself at a loss to account for the necessity of the bill, the committee were certainly right, if they entertained doubts, to attract the attention of the House to them. By the first act of Congress accepting the cession, the United States have legislated in the very way the gentleman from Virginia now proposes. As it appeared at that time impossible to form a code of laws, those of Maryland and Virginia were confirmed till Congress should legislate. If it were true that Congress were bound to legislate themselves, an equal obligation existed at that time with that which existed at present. Their not having done so was a strong argument against the construction now contended for. To pass such a law as that now offered, instead of removing, would be the very means of exciting doubt. The time may arrive when Congress must go into the subject in detail, and make those provisions that were necessary for a great city. But at present such a step was not called for: the Territory had gone on very well for ten years without the interposition of Congress, and I have no doubt it will continue for some time to come to do well without it. Mr. BIRD said, this question, in my opinion, is susceptible of a very clear and precise solution. Did the acts of cession by the States, and of acceptance by Congress, take away the jurisdiction of those States, and vest it in Congress? The acts of Maryland and Virginia make a complete cession of soil and jurisdiction to Congress. This cession has been accepted by Congress. What is the consequence of one sovereign transferring all jurisdiction to another sovereign? Does not the power that cedes give up all right whatever to that which accepts? The words of the constitution are that Congress shall exercise exclusive legislation. If Congress exercise exclusive legislation, does it not follow that no other body can exercise any legislation whatever? The gentleman from Virginia (Mr. NICHOLAS) does not deny the power altogether, but limits it, as a power that may or may not be exercised by Congress; and, in illustration of his opinion, instances the power to naturalize and to pass bankrupt laws. But the cases are not analogous. These last are powers that Congress may or may not exercise. The constitution does not apply to them the term exclusive; nor are they shut out by the actual words of that instrument or by necessary inference. Over some objects Congress have partial authority; but in this case their authority is absolute and exclusive of all other; from which irresistibly follows the absolute cessation of all power in the ceding body. It was undoubtedly the intention of the framers of the constitution, that after this Territory became the actual seat of Government, no authority but that of Congress should be in force. The act of cession by the States, after stating the terms of cession, contains a proviso, that the power of legislation thereby vested in Congress, shall not impair the force of the laws of Maryland and Virginia, till Congress shall otherwise by law provide. A proviso is to prevent something from being done that without it would be done. Congress declared the same thing when they accepted the cession with the same proviso. This proviso tends to supersede the cession. Having this effect it must fall, as conflicting with the act to which it is a proviso. It must be considered as absolutely void. A proviso is intended to prevent the operation of a particular thing, not to give an operation to it. It may prevent the enaction of a particular law, but it cannot re-enact that law. A difference of opinion seemed to exist as to the period when the powers of the States were superseded. It was the opinion of some gentlemen that they ceased on the completion of the act of cession. The committee consider them as ceasing on the first Monday in December of the present year. It became the House solemnly to settle this point before they entered into the consideration of a complicated system of government. If the Legislative powers of the States had ceased, it follows, as a necessary consequence, that the Judicial powers had also ceased. For these reasons I think it will be best to declare that things shall remain in _statu quo_. If the ordinary jurisdiction established be not competent, it may easily be made so. Mr. RANDOLPH was not prepared to enter into a discussion of the important point before the committee. He would only state the dilemma in which the inhabitants of the District of Columbia would be placed by the construction given to the constitution by his colleague, who was of opinion that all Legislative and Judicial powers derived from Virginia and Maryland, ceased on the first Monday of December. If this construction were true, was it not equally true that the bill now proposed would be of the same validity, and of no more validity, than the act of acceptance passed by Congress. From his being unprepared, what he offered was submitted more in the form of hints than of correct arguments. But it seemed to him that if the construction contended for should prevail, it would disfranchise the corporations of Georgetown and Alexandria, and all other corporations within the District. Would it not place the Territory in the situation of a conquered country? According to this construction, the Territory was in a state of anarchy, and murder, if committed, would be no crime. Further, if the constitutional provision is obligatory upon us to assume exclusive legislation, are we not bound to establish uniform laws throughout the entire District? and of course are we not prohibited from establishing one system in one place, and a different system in another? One other objection merited the gentleman's notice. The laws of Virginia precluded every officer under its Government from holding any Federal office. From the impression made on his mind by these considerations, Mr. R. said, he would be wanting to himself and his country, if he agreed to the bill. He hoped, therefore, that the Committee would rise, and not precipitate a decision. Mr. HARPER was in favor of the motion that the committee should rise, for the purpose of recommitting the bill to a select committee. He would state his reasons: The object of the first section was to assume the jurisdiction. That was his object. He wished the establishment of a Judiciary competent to the carrying into effect the laws now existing. He wished this object to be accomplished in a fair, open, direct way. At some future period Congress might find it necessary to enter on a system of legislation in detail, and to have established numerous police regulations. At this time, the present exigency would be provided for by confirming the laws of Virginia and Maryland, and by giving effect to them by the institution of a competent Judicial authority. Mr. NICHOLAS said, that he should vote for the committee rising, from a different motive from that which actuated the gentleman from South Carolina. He hoped the business would be suffered for the present to sleep. The construction given to the constitution by the gentleman from New York, did not render it merely expedient in Congress to assume jurisdiction, but rendered it an absolute duty. In reply to his remarks, the gentleman had alleged that the authority given by the constitution in relation to this Territory, differed from the other powers vested in Congress, inasmuch as the former investment of power had connected it with the word _exclusive_; whereas the latter had not. The meaning which Mr. N. affixed to that word, was altogether different from the one now contended for. The constitution does not say Congress shall possess exclusive power of legislation; but that they shall have power of exercising exclusive legislation. The acts of cession and acceptance contained a construction directly opposed to that now made. They declare that the laws of Maryland and Virginia shall continue till Congress shall alter them. Their cessation is made to depend on an uncertain event, viz: whether Congress shall legislate or not. Not a tittle in the constitution or in our practice, under the constitution, infringed our liberty to act or not to act. What would be the effect of this law on the inhabitants of the Territory? It would impose on them the laws of Maryland and Virginia, as they existed on a particular day, without any capability of improvement from the improved code of those States. Mr. N. had heard of no inconveniences which had arisen from the non-assumption of power by Congress. The people in the Territory of Columbia had been a happy people for more than a hundred years under their State Governments; and, he had no doubt, would remain so without the interposition of Congress, who, at present, were unqualified to act. After some further remarks by Messrs. HARPER and H. LEE, the question was taken on the committee rising, and carried without a division. The committee rose; the Chairman requested leave to sit again, which was not granted. Mr. HARPER then moved to recommit the bill to the same committee that introduced it. He said, the objection made by the gentleman from Virginia to the assumption of power by Congress goes to say that the constitutional provision, the acts of cession of Maryland and Virginia, and the act of acceptance by Congress, shall be all a dead letter; and that the Territory shall continue, as heretofore, under its old jurisdiction. This was, to all intents and purposes, the amount of the gentleman's remarks. He asked, what necessity for the exercise of power by Congress? Had not the citizens lived happily for a hundred years under the State Governments? This Mr. H. did not dispute. It was probably true that they had lived as happily as other portions of citizens under the State Governments. But the provision of the constitution on this subject had not been made with this view. It was made to bestow dignity and independence on the government of the Union. It was to protect it from such outrages as had occurred when it was differently situated, when it was without competent Legislative, Executive, and Judicial power, to ensure to itself respect. While the government was under the guardianship of State laws, those laws might be inadequate to its protection, or there might exist a spirit hostile to the general government, or at any rate indisposed to give it proper protection. This was one reason, among others, for the provisions of the constitution, confirmed and carried into effect by the acts of Maryland and Virginia, and by the act of Congress. The object of the gentleman was to defeat all these acts and all these arrangements, in subversion of that provision which the constitution had made, and of that necessity which it had foreseen. The gentleman from Virginia requires more time. He thinks we are not prepared to legislate. But if his (Mr. H.'s) ideas were adopted, there would be no occasion for this. The Territory has laws; and Mr. H. believed these laws would answer very well for fifty years, without giving Congress much trouble to modify them. The establishment of a Judiciary would be very easy, and would require little time. As to a police, it may be necessary hereafter. At present it was not necessary. With regard to a corporation, he was against it at present, and he did not think it would ever be necessary. Mr. NICHOLAS did not consider the power imparted by the constitution as imperative. He, therefore, could not fairly be charged with a desire to deviate from the designs of its framers. The power was like a coat of armor, intended to protect the Government in periods of danger, and not to be worn at all times for parade and show. Remarks had been made to show that the dignity and independence of the Government required the assumption. All such arguments, when set against the happiness of the people, were inconclusive; Mr. N. had always been taught to consider the true dignity of the Government as indissolubly connected with the happiness of the people; and was unable to unlearn all that he had heretofore acquired to this effect. Mr. CRAIK agreed with the member from South Carolina, as far as his remarks went, but he did not think they went far enough. He was himself friendly to the institution of a local government for local purposes, leaving all Federal powers to Congress. If the bill should be recommitted, he would be prepared to offer a plan conformably to these ideas. He felt no alarm at the doubts suggested of the validity of the laws of Maryland and Virginia. He believed that they were still in force; and did not think there was any absolute necessity for Congress to act at all at present. Still, he thought that delay would only multiply the inconveniences already experienced in the formation of a plan of government. A plan might be framed, to protect the General Government as well as, in some degree, the inhabitants of the Territory, from any tyranny that some gentlemen supposed might be exercised by Congress. He concluded, by expressing a hope that a completely organized system might be formed and adopted. THURSDAY, January 1, 1801. The House of Representatives having received information of the death of Major General THOMAS HARTLEY, one of its members, who has represented the State of Pennsylvania, in that branch of the National Legislature, from the commencement of the Government until his death, do, therefore, unanimously, _Resolve_, That the members testify their respect for the memory of the said THOMAS HARTLEY, by wearing a crape on the left arm, for one month. _Resolved_, That the SPEAKER address a letter to the Executive of Pennsylvania, to inform him of the death of THOMAS HARTLEY, late a member of this House, in order that measures may be taken to supply the vacancy occasioned thereby. _Mausoleum to Washington._ An engrossed bill concerning GEORGE WASHINGTON was read the third time; and, on the question that the same do pass, Mr. DAWSON moved to recommit it. Lost--ayes 39, noes 44. Mr. RANDOLPH moved to refer the bill to a select committee. Lost--ayes 32. Mr. SPAIGHT and Mr. DAVIS then assigned their reasons for voting against the bill. The question was then taken on the passing of the bill, and it was resolved in the affirmative--yeas 45, nays 37, as follows: YEAS.--Bailey Bartlett, John Brown, Christopher G. Champlin, William Cooper, William Craik, John Davenport, Franklin Davenport, John Dennis, George Dent, Joseph Dickson, Thomas Evans, Abiel Foster, Jonathan Freeman, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Archibald Henderson, William H. Hill, Benjamin Huger, James H. Imlay, John Wilkes Kittera, Henry Lee, Silas Lee, Lewis R. Morris, Abraham Nott, Harrison G. Otis, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, Nathan Read, John Rutledge, jr., John C. Smith, James Sheafe, Samuel Tenney, George Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, Thos. T. Davis, John Dawson, Joseph Eggleston, Lucas Elmendorph, Edwin Gray, Andrew Gregg, John A. Hanna, David Holmes, George Jackson, Aaron Kitchell, Michael Leib, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, John Randolph, John Smilie, John Smith, Richard Dobbs Spaight, Richard Stanford, Thomas Sumter, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, and Robert Williams. _Resolved_, That the title of the said bill be "An act to erect a Mausoleum for GEORGE WASHINGTON;" and that the Clerk of this House do carry the same to the Senate, and desire their concurrence. FRIDAY, January 2. Another member, to wit, JAMES A. BAYARD, from Delaware, appeared, and took his seat in the House. On motion of Mr. GRISWOLD the House went into a Committee of the Whole on the Judiciary bill; the House dividing--yeas 44, nays 33. The bill was read through, when the committee reported progress, and asked and obtained leave to sit again. _Sedition Law._ The House proceeded to consider the report of the Committee of Revisal and Unfinished Business, made the thirty-first ultimo, which lay on the table, and the same being again read, in the words following, to wit: "The Committee of Revisal and Unfinished Business further report, in part: "That, on examining the statutes of the United States, they find that the act, entitled 'An act in addition to the act, entitled "An act for the punishment of certain crimes against the United States,"' passed the fourteenth day of July, one thousand seven hundred and ninety-eight, will expire on the third day of March, one thousand eight hundred and one. "And the said committee report their opinion, that the above-mentioned act ought to be continued; and, therefore, recommend the following resolution: "_Resolved_, That the Committee of Revisal and Unfinished Business be authorized to report a bill for continuing the act, entitled 'An act in addition to the act, entitled "An act for the punishment of certain crimes against the United States,"' passed the fourteenth day of July, one thousand seven hundred and ninety-eight." It was moved and seconded that the said report be committed to a Committee of the whole House. And the question being taken thereupon, it was resolved in the affirmative--yeas 47, nays 33. _Ordered_, That the said report be committed to a Committee of the whole House on Tuesday next. MONDAY, January 26. Several other members, to wit: from Kentucky, JOHN FOWLER; from Virginia, SAMUEL J. CABELL; and from New York, EDWARD LIVINGSTON, appeared, and took their seats in the House. THURSDAY, January 29. _Rules for Electing President when no Election by Electors._ The following resolution, proposed by Mr. RUTLEDGE, was presented to the House, which, being read, was ordered to lie on the table. "_Resolved_, That a committee be appointed to prepare and report such rules as, in their opinion, are proper to be adopted by this House, to be observed in the election of a President of the United States, whose term is to commence on the fourth day of March next, provided the Electors appointed under the authority of the States have not elected a President for that term." FRIDAY, January 30. _Election of President when the two highest on the List voted for have an equal number of Votes._ Mr. BAYARD submitted the following resolution, to wit: _Resolved_, That, in the event of its appearing upon the counting and ascertaining of the votes given for President and Vice President, according to the mode prescribed by the constitution, that an equal number of votes have been given for two persons, that as soon as the same shall have been duly declared and entered on the journals of this House, that the Speaker, accompanied by the members of the House, shall return to this Chamber, and shall immediately proceed to choose one of the two candidates for President; and in case, upon the first ballot, there shall not appear to be a majority of the States in favor of one of the candidates, in such case the House shall continue to ballot for President, without interruption by other business, until it shall appear that a President is duly chosen; and, if no such choice should be made upon the first day, the House shall continue to ballot from day to day, till a choice shall be duly made. _Ordered_, That the consideration of the said motion be postponed until Monday next. MONDAY, February 2. A new member, to wit, EBENEZER MATTOON, returned to serve as a member of this House for the State of Massachusetts, in the room of Samuel Lyman, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House. _Election of President._ A motion being made and seconded that the House do come to the following resolution, to wit: _Resolved_, That a committee be appointed to prepare and report such rules, as, in their opinion, are proper to be adopted by this House, to be observed in the choice of a President of the United States, whose term is to commence on the fourth day of March next, if, when the votes which have been given by the electors appointed under the authority of the States shall have been counted, as prescribed by the constitution, it shall appear that no person for whom the electors shall have voted, has a majority, or that more than one person, having such majority, have an equal number of votes: _Ordered_, That Mr. RUTLEDGE, Mr. NICHOLAS, Mr. GRISWOLD, Mr. MACON, Mr. BAYARD, Mr. TALIAFERRO, Mr. FOSTER, Mr. CLAIBORNE, Mr. OTIS, Mr. DAVIS, Mr. MORRIS, Mr. CHAMPLIN, Mr. BAER, Mr. COOPER, Mr. LINN, and Mr. WOODS, be appointed a committee, pursuant to the said resolution. _Ordered_, That the motion made on Friday last relative to the mode of commencing and continuing the ballot for the choice of a President of the United States, be referred to the committee last appointed. _District of Columbia._ The House then went into Committee of the Whole on the bill for the government of the District of Columbia. While the question was being taken for the House to resolve itself into a committee, Mr. SMILIE rose and moved the postponement of this order till the third day of March next. He made this motion, he said, in order to try the sense of the House, whether they were determined to assume the jurisdiction or not. He hoped it would not, and was proceeding to show his reasons, when The SPEAKER reminded him of the order of the House. He could not be permitted to discuss the merits of the bill under this motion. Mr. SMILIE conceived the question to affect the bill generally, and simply to be, whether the House would agree to disfranchise some thousands of persons of their political rights, which they now enjoyed. If this was not considered an object of importance enough to command attention, he must confess other gentlemen saw it in a very different light from that in which he viewed it. By the passage of this bill, the people of the district would be reduced to the state of subjects, and deprived of their political rights, and he very much doubted whether not of their civil rights also. If, indeed, there was such an imperious necessity of assuming the jurisdiction, of which he was by no means convinced, then it must be done; but, if that great and immediate necessity did not exist, why should this privation of rights take place? If it was necessary to reduce the City of Washington to a state of local government by an incorporation, he contended that act could be done by the State Legislature; as he did not conceive the local demands of the people called for it, as they could want no such assumption as the bill contemplated, and as he could perceive no advantage to be derived to the General Government thereby, and as the assumption would eventually injure the people, he trusted it would be postponed, at least. Mr. RUTLEDGE said, he had always uniformly opposed any motion for postponing a bill, the consideration of which the House had not gone into. Although it might be in order, it could not be perfectly fair, from various considerations; if, however, it were only from its tendency to preclude the investigation of the bill, it were sufficient. The gentleman had stated it not to be necessary. Who are to judge? Most assuredly the people belonging to the Territory. And what have they said? Why, sir, they have prayed the House to assume the jurisdiction. From this petition the subject was referred to a committee, and this committee have reported a bill, and a bill well discussed and well matured in its detail. To refuse this bill from a diversity of sentiment, would be to insult the committee, and to insult the people of the Territory. If the gentleman wishes to please the people, why does he not suffer the consideration of the bill to proceed, and afford his aid in making it what he supposes their desires would concur in? Perhaps the gentleman has not read the bill. Mr. R. said, if he had not, how was he to know whether it was good or bad? Something must be done. He wished to get at that something, but was precluded by the motion. It certainly became the gentleman to show how this bill would operate injuriously upon the people, as a reason for his motion. Disfranchisement, to be sure, had been mentioned as the result of this bill; but how was the House to know that would be its tendency, except by going into its investigation? Mr. CRAIK, also, considered this order of the House as the most unfair one among the rules of the House. However, it must be permitted while the order continued. The gentleman had said the people were in a state of vassalage; how was this declaration to be refuted, if the order of the House forbade the investigation into the application of this bill to the liberties of the people? The gentleman further said, that the people did not desire this assumption of jurisdiction. Were he, Mr. C. said, to give an opinion upon the subject, it would be drawn from the same source with that expressed by the gentleman, but of a very different import. He should say, as far as his knowledge of their sentiments extended, and he professed to be pretty well acquainted with their ideas upon this subject, that their feelings, their interests, and their desires conspired to encourage the assumption, and to prevent the postponement of the subject. As the immediate representative of a large proportion of them, he could say that much uncertainty and disquiet convulsed the minds of many good and wise men among them; that their present uncertainty was truly deplorable; that serious doubts existed with judicious men how far the grants and acceptance of lands, or of their papers, afforded them security for value received; doubts existed, in all their acts of negotiation, whether their respective State laws held any government over them? And this state of insecurity as to their property, could not fail to have an injurious effect. They doubted whether all other jurisdiction did not immediately cease, upon the removal of Congress to the District; and should Congress break up without assuming the jurisdiction, and taking other suitable measures to fix the Government, it would not fail to paralyze every exertion and effort toward a successful establishment. No man at present can assure himself of the right by which he holds his property, or remove his apprehensions. They now called loudly upon the National Government to remove from them this state of doubt and uncertainty; this is the object of the bill before the House; by this bill, a variety of inconveniences are removed, and the Government use their effort to make their situation at least more certain; and, he had no doubt, more safe and desirable. This it was incumbent on the Government to do; and this, he trusted, a majority of the House would be disposed to do soon. If the objects or provisions of the bill did not meet that gentleman's desires, he wished an opportunity to hear the objections, to enable him, as far as in his power, to remove them. Mr. SMILIE was proceeding to show that, at any rate, such a bill as the present ought not to pass, when The SPEAKER interrupted him, saying that any arguments that went to show that the third day of March was a more proper time than the present for this bill to pass would only be in order. Mr. SMILIE continued to show the impropriety of the bill, and the inevitable injuries that must be sustained by it, when he was again reminded of the question of order. Mr. S. proceeded: that it might be the wish of some of the people, he would not say; but he denied that such a wish had been expressed, and therefore it ought not to be considered as correct. As to the question of doubt on the minds of the people, whether or not they held their property secure, not being certain of the existence of their former State laws, he referred to the acts of cession, passed by the States of Maryland and Virginia respectively, the words of which were, that the laws remained in force "until Congress shall by law otherwise provide." Under this express provision, the cession was made by the two States; and by this provision the Government of the United States accepted the grant of the ten miles square. And, therefore, until Congress by law should accept of the jurisdiction and nullify the laws of those States over the District, there could be no doubt but they remained in full force, and property was held as secure under those laws as ever. As he had before observed, he contended that an act of incorporation could be obtained for the city of Washington without this bill. From all these grounds, he believed the bill to be at present unnecessary. Mr. H. LEE did not wonder at this opposition, considering the quarter from whence it came; perhaps, he said, if he had come from Pennsylvania, the idea of losing the General Government might instigate him to wish to give the stabbing blow to every act which should go to the establishing of that Government in another place. But, he trusted, as these local reasons could not influence gentlemen from other States, they would not concur in his arguments. He trusted other gentlemen would lay to their hands and join to make this District a settled Government, and go into the examination of the principles proposed to accomplish that measure. He hoped not merely words of kindness escaping from the lips of gentlemen, would be deemed by them sufficient, but that their efforts would be used to produce a well-digested and valuable government, for the security of their civil and political rights. With respect to the act of cession, he contended that the solemn injunctions of the constitution were detailed in words upon which the most critical could not find wherewith to hang a doubt. There the Congress of the United States were enjoined to "exercise exclusive jurisdiction." When was this jurisdiction to commence but at the period when the General Government should occupy it? Was not, then, this spot become the permanent seat of the Government of the Union? Were not the different departments, Executive, Legislative, and Judicial, assembled, according to the constitution, in this District? How, then, could the respective States of Virginia and Maryland a moment longer possess the jurisdiction? It was completely done away, and nothing was now wanting to remove the miserable state of suspense the people now felt, but the declaration of the Government that this was the case; that moment would all their fears be appeased. As a friend to those people, then, as much as that gentleman could be, he hoped an opportunity would be given to examine the bill, not doubting but it would be made to meet the wishes, as he was assured it would be the interest of the people to be governed by it. Mr. MACON said the motion was perfectly in order, and explained some of the cases for which it was established, as a rule of the House. As to the jurisdiction being assumed by the removal of Congress here, as the gentleman last up had said, were that the case, not only by this bill would it be assumed, but the acts of the two States must have ceased from the day Congress first sat here; a deduction by no means supported. The only evidence the House had of the desire of the people to come specially under the National Government, was a petition from Alexandria, except that the gentleman from the District had learned so among his friends. But did that express the will or wishes of the inhabitants of the surrounding country. As he believed the laws of the States to be in full force; as he believed they would remain so until otherwise enacted by Congress, and as postponing the bill till the third of March would afford the people a large time to reflect on the subject, and express their will more generally, he hoped the postponement would take place. He would remind the House that this measure once taken, could not be undone; and, therefore, prudence would dictate that time should be taken to do it well. The act could not be repealed without amending the constitution. If the gentleman only calculated upon an opposition from Pennsylvania, he was mistaken. Mr. M. presumed that he could not be supposed to have local attachments, residing very far from the former, or the present seat of Government; he was, notwithstanding, opposed to taking up this subject at present, and even during the present session. The delay of acceptance could not displease the inhabitants, if they were satisfied as to the present jurisdiction, which did not, in his opinion, admit of a doubt. It was impossible that the postponement could be attended with any inconvenience; they had been in the same situation for ten years, and wherein could be the inconvenience of their remaining so? Nay, there must be advantages in their usages and customs being continued to them. He wished this matter to be postponed till another session. Mr. BIRD never could suppose that the members of the Legislature would be satisfied with their removal from a place of accommodation to a wilderness, and with subjecting themselves to the inconveniences of this place, without exercising all the powers intrusted to them, and taking the jurisdiction to the Government, the members and subordinates of which were to subject themselves to the code of laws under which they should place themselves. A motion, therefore, to continue the jurisdiction out of the hands of the Government, much surprised him. All the arguments used by the gentleman in favor of a postponement, would operate fully to the entire abandonment of the subject; and did he suppose that all the expense attending the removal of the whole Government, all the inconvenience experienced, would be, or ought to be, borne without the enjoyment of that constitutional right, nay, injunction, of "exclusive legislation?" What could have been the reason why Congress was to assume this exclusive legislation? Did not the members of the convention know that a great quantity of public treasure would be drawn together into this place? Did they not suppose it of importance to secure the privileges and rights of foreign ministers, who would necessarily be brought to reside in this District? Did they not consider the number of persons attached to the Government worthy of the special regard of the national Legislature? Could any gentleman conceive that these were not too great powers to be intrusted to any State whatever? Else why was the provision for exclusive jurisdiction made? To avoid putting those powers into execution, he firmly believed, would be omitting a great and important duty. But, were it not for the words of the constitution, the words of the acts of cession made by the States were as ample upon the subject as one sovereign power in the act of granting, and another sovereign power in the act of receiving a cession, could make. This was precisely the case; the two States made a full and complete cession of the jurisdiction to the General Government, upon the terms of the constitution, which were to "exercise exclusive legislation, in all cases whatever, over such District," which had, by the cession of those particular States, and the acceptance of Congress, become the seat of the Government of the United States. How, he would ask gentlemen, could this be granted, and yet retained? It was absurd to suppose a man could grant a piece of land, and by the same instrument retain it. But suppose this was a doubtful subject, whether or not the laws of the two States were in force in the District; would the gentleman still wish to leave it in doubt? Surely no new laws could be made by those States to affect this district, actually made the seat of Government, and he contended that none of the laws whatever did exist here, and that the power of the civil officers actually had ceased; it therefore required no painting to show that the state of the place was truly deplorable. Would the gentleman yet wish to leave the District without laws, and merely lest it should take away their suffrage? That the people could not be represented in the General Government, Mr. B. admitted. But where was the blame, if any could attach? Certainly not to the men who made the act of cession; not to those who accepted it. It was to the men who framed the constitutional provision, who peculiarly set apart this as a District under the national safeguard and Government. But, he contended, there was no injury sustained. What less compensation than the particular legislation of this District could be required for the removal of the Government, whereby in these almost uninhabited woods the beginnings of a rich and prosperous city was commenced, and made the capital of the United States? The motion for postponement was withdrawn without a question being taken, and the House resolved itself into a Committee of the Whole on the bill. Mr. SMILIE moved to strike out the first section of the bill. Mr. SMILIE said he would willingly give the reasons which prompted him to make the motion, and he hoped the gentleman would as freely make his reply. If it could be proved to him that the rights of these people could be reserved by the passage of the bill, it would give him pleasure, but, believing it to be impossible, he wished to destroy the bill. It could not be denied but that the people of this District were precisely in the same situation at present which they always had been, and subject to the same laws, but would it be so when the Government once accepted the cession? It would not. Not a man in the District would be represented in the Government, whereas every man who contributed to the support of a government ought to be represented in it, otherwise his natural rights were subverted, and he left, not a citizen, but a subject. This was one right the bill deprived these people of, and he had always been taught to believe it was a very serious and important one. It was a right which this country, when under subjection to Great Britain, thought worth making a resolute struggle for, and evinced a determination to perish rather than not enjoy. Another, and an important right, of which those people were about to be deprived, was, that their Judges and their Governor were not to be the choice of themselves, but of the President. The privilege of a local Legislature might be given to the people, but of what avail could they be if the Governor appointed by the President could deprive them of every act they might make by his negative? Where was their security if the acts of these Representatives of the people could be to-morrow revoked by a power deriving authority from elsewhere? Much as gentlemen might talk about dignity of government, nothing, he thought, would more comport with true dignity than liberty, and without it dignity of government was not worth a name. It surely must be disagreeable for the Government to be in the midst of a people who are deprived of their rights, and what insecurity there ever had been, or ever would be, to the Government, from its residence under the laws of the States, he could not conceive. He had never known of any. If he could be convinced that the people would not be deprived of these rights, among others, he would agree to some such bill as this. Mr. DENNIS acknowledged that had he the same impressions as the member who had just sat down, he would not hesitate for a moment to believe that liberty had been forced to yield to a reign of absolute slavery. But from a consideration of the interests of the people, of the dignity of the Government, and of the seat of the Congress, together with the reflections of the gentleman who had just resumed his seat, he felt himself called upon to make some observations by way of an answer. As to the interests of the people, could it for a moment be doubted that a local government, a judiciary, and a legislature, would be highly advantageous? Could any man doubt but it would be more convenient and advantageous for the inhabitants to attend the courts in this place than to be taken away to Richmond or to Annapolis? It had been always an approved privilege that justice should be brought home to every man's door, and where could it be more so than by the establishment of a judiciary, especially for this District? Nor were the advantages less, he contended, in the legislative department. If a ready communication with their representatives was desirable to the people, by the residence and sitting of the representatives of this District being within itself, the communication was easy, and the rights of the people in their local concerns more attainable, surely, than though they had to go to Richmond or to Annapolis. But, taking a more comprehensive view of the subject, Mr. D. asked if the general interests of the District would not be more secured by persons immediately acquainted and concerned, than by persons of different States, and at a distance from the place? One or two representatives to each legislature would be the utmost that the District could send, and these placed among men of different interests, what could be expected compared to a body such as is prescribed by this bill, drawn from among the people themselves? In these legislatures, the numerous local circumstances which must call for attention in a newly planted and rapidly growing capital, never can receive due attention. Every person must know that a great proportion of business must arise from a commercial city. From observation he could say that about one-third of the business of the Legislature of Maryland usually arose from Baltimore alone. As this city, therefore, grew in population and in trade, the demand for legislative attention would increase, and either its interests must be neglected, or the sitting of the State legislatures must be protracted too far. Besides this, experience must have taught gentlemen that numerous bodies could not so well attend to the minute advantages of a place like this as small bodies, and particularly such as well knew its situation and circumstances. It had been said that these people were happy. Mr. D. admitted it; but a change of circumstances made an inevitable difference, and required a different mode of legislating. This District of the General Government, being a part of two States, must require an alteration from its former government. Surely the organization of a local body must be more advantageous than any modifications which could be made by those two Legislatures. So far from a rule of despotism then being over these people, he thought the passing of this bill would much increase their prosperity. It was said that, by the assumption of the jurisdiction, these people would ask how much they were heretofore represented in the two Legislatures to which they sent delegates. They were so in name, but very little in essence, from the comparatively small number they could send to the Legislatures. But the arguments went as much against the assumption at any future time as at present. That it would be some time taken up there could be no doubt. It ought therefore to be recollected, that if it would ever be proper, a period more unfavorable to the interests of the people might be selected than the present, and therefore the present moment ought to be accepted, and especially so, as he believed the people were desirous of it, and were satisfied with the features of the bill. From their contiguity to, and residence among the members of the General Government, they knew, that though they might not be represented in the national body, their voice would be heard. But if it should be necessary, the constitution might be so altered as to give them a delegate to the General Legislature when their numbers should become sufficient. Upon the whole, he could see no measures which would more immediately promote the interests of the people of this district, and give stability to their minds, and to their concerns with each other, than the present bill and, therefore, he hoped the section would remain. Mr. MACON said, he could see no such immediate necessity for this law. A gentleman had told the committee it was necessary because the States did not pay regard to it. Mr. M. supposed the same attention was paid to this district as usual, and the same as was paid to any other particular part. He believed their political and local rights were as perfectly secure without this bill as any other part of those States, and if the object of gentlemen was to make it better or worse, he should be opposed to it. Before the least change from their former situation, some inconveniences ought to be mentioned under which they labored, and this had not been done, more than mere conjecture and surmises had engendered. Most assuredly there ought to be some good ground for this assumption, because it was not merely a common act of the Legislature, which could be repealed or amended as soon as passed. It was an act of a nature that could not be essentially altered without an alteration in the constitution, because if the assumption was once accepted, it could not be parted with. It would be so far from advantageous to the city of Washington, Mr. M. said, that it must essentially injure it. On one side of the water was Alexandria, a populous town; on the other side was Georgetown. Would not these two give to the legislature a majority? And if so, a more palpable evil could not be put upon the city than by putting it in with more numerous towns whose interests would ever be opposed to the growth of the city. There would inevitably be an Alexandria interest, a Georgetown interest, and a city interest, and those struggling with each other. It was said to be inconvenient to be represented at a distance, from the want of an easy communication. How could this be? What was more easy than for letters and instructions to be sent by post? The communication was easy from all parts of the United States to Congress, and could be equally so to any place where the post goes. There could be no doubt but the States would pay as much attention to the interests of this District, if it continued under their jurisdiction, as ever had been done, and more: by not suffering it to endure any injury which it could prevent, Congress should immediately take the jurisdiction. The language and meaning of gentlemen could be well understood. Gentlemen were called to support the measure with energy, while they had strength. No doubt this was the principal ground of their endeavors to push the measure, although the Legislature had but just met here, and there had been scarce time to know what would be the proper regulations to adopt. But he wished to remind them, that although the law might be passed, the time would not be far off when his friends would be in the minority, and some considerable alterations might be made in it. Mr. M. then proceeded to the details of the bill. He disliked the establishment of a government, the executive and judiciary of which were in the appointment of the President of the United States, the former for three years and the latter during good behavior: and these, both governor and judges of the superior and inferior courts, to be paid out of the Treasury of the United States. Could it be the wish of the gentleman, he asked, to establish in the very heart of the United States, and immediately under the eye of the Government, such a principle as that these rulers should be independent and entirely above the control of the people? He declared that if he should be in Congress again, and as long as he ever should be in the House, he should constantly make it his duty to exert himself for the repeal of so bad a principle, and leave the governor, the judges, and the Legislature, immediately amenable to the people. Another thing he should also be ever opposed to, was the manner of this House of Representatives and Senate being chosen, and the time of their continuance. Why should they be elected here for two years, when in all the State Legislatures, he believed they were chosen annually, except two, in one of which they were elected every six months, and in the other, every two years. A greater absurdity still was evinced in the time for which, and the manner how the Senators were chosen--six years, and by electors. Although in these things there was a similarity to the choice of the General Government, he would ask what similarity there could be in the two Governments? In the one there is a vast extent of country and a numerous population; in the other, a small population, a small tract of country, and an almost general knowledge by every one of every individual in it. He doubted whether the Legislature of the Union could at all delegate powers to this local government; but whether or not, he could see no kind of necessity during the present session to assume them. The Government would go on as well as before, and he had no doubt the city would continue in that rapid state of prosperity gentlemen had witnessed since they arrived here. The committee rose without taking a question, and had leave to sit again. TUESDAY, February 3. A new member, to wit, JOHN STEWART, returned to serve as a member of this House for the State of Pennsylvania, in the room of Thomas Hartley, deceased, appeared, produced his credentials, was qualified, and took his seat in the House. _District of Columbia._ The House resolved itself into a Committee of the Whole on the bill for the government of the District of Columbia, when the question was taken on the motion made yesterday, for striking out the first section, and negatived, ten members only rising for it. Mr. GREGG then proposed an amendment to the first section, the object of which was to make the election of representatives annual, instead of biennial as contemplated by the bill. This motion brought on a lengthy discussion, being supported by Messrs. J. SMITH, CLAIBORNE, NICHOLAS, GALLATIN, and MACON; and opposed by Messrs. CRAIK, HARPER, BAYARD, H. LEE, THOMAS, and DENNIS. On the question for agreeing to the motion, it was determined in the negative--48 voting for it and 50 against it. A motion was then made by Mr. CLAIBORNE, so to amend the first section as to extend the privilege of voting to persons who are not freeholders; that privilege being confined by the bill to freeholders exclusively. This motion brought on a short debate, in which Messrs. KITCHELL, NICHOLSON, SMITH, MACON, TAZEWELL, and NICHOLAS supported the motion, and Messrs. HARPER, CRAIK, DENNIS, and GALLATIN, opposed it. On the question that the House do agree to the motion, it was determined in the negative, there being 48 votes for, and 50 against it. WEDNESDAY, February 4. _District of Columbia._ The House resolved itself into a Committee of the Whole on the bill for the government of the District of Columbia. A motion was made by Mr. GALLATIN to amend the first section of the bill, so as to extend the privilege of voting for representatives to persons other than freeholders, who are possessed of property in the District to the value of eighty dollars. Mr. HARPER proposed an amendment to the foregoing amendment, that a citizen, not being a freeholder, in order to qualify him as an elector, must be a housekeeper, and possessed of property of the value of one hundred dollars, to be ascertained by the record of the last assessment next preceding the period of offering his vote. Mr. GALLATIN'S amendment was withdrawn, and Mr. HARPER'S, which, though offered as an amendment, was a complete substitute for it, was adopted. Mr. CLAIBORNE proposed as an amendment to this same section, to reduce the term of a Senator continuing in office from six to three years. The motion was negatived. Mr. TAZEWELL moved to strike out the Senate altogether, on the ground that Congress, having the revision of all laws that may be passed for the territory, and the power of rejecting such as they did not approve, would be a sufficient check on the Representatives without a Senate. This motion was negatived. Mr. MACON moved as an amendment, that the Senators should be elected immediately by the people, and not by electors, as proposed by the bill. This motion was also lost. A motion was made by Mr. NICHOLSON, that the electors should not be permitted to choose themselves as Senators. This motion was adopted. The committee rose, reported progress, and asked leave to sit again. FRIDAY, February 6. A new member, to wit, LEVI LINCOLN, returned to serve in this House as a member from Massachusetts, in the room of Dwight Foster, elected a Senator of the United States, appeared, produced his credentials, and took his seat in the House. _Rules for Election of President._ Mr. RUTLEDGE, from the committee appointed, on the second instant, to prepare and report such rules as, in their opinion, are proper to be adopted by this House to be observed in the choice of a President of the United States, made a report; which was read. [See _post_, Monday 9th, as amended.] MONDAY, February 9. _Ordered_, That the Committee of Claims, to whom was referred, on the thirtieth ultimo, the memorial of sundry clerks employed in the different departments, be discharged from the further consideration thereof, and that the same be referred to the Committee of Revisal and Unfinished Business. Mr. RUTLEDGE, from the committee appointed on the part of this House, jointly, with the committee on the part of the Senate, to ascertain and report a mode of examining the votes given for President and Vice President of the United States; of notifying the persons elected of their election, and the time, place, and manner of administering the oath of office to the President, reported that the committee had taken the subject referred to them under consideration, but had come to no agreement thereupon. A message from the Senate, informed the House that the Senate would be ready to receive the House in the Senate Chamber, on Wednesday next, at twelve o'clock, for the purpose of being present at the opening and counting of the votes for President of the United States; and that the Senate have appointed a teller on their part, to make a list of the votes for President of the United States as they shall be declared. _Rules for Election of President._ The House proceeded to consider the report made on Friday last, from the committee appointed to prepare and report rules proper to be observed in the choice of a President of the United States: Whereupon, _Ordered_, That the said report be committed to a Committee of the whole House immediately. The House, accordingly, resolved itself into a Committee of the Whole on the said report; and, after some time spent therein, the Chairman reported that the committee had had the said report under consideration, and directed him to report to the House their agreement to the same, with an amendment; which he delivered in at the Clerk's table, where the same was read. The House then proceeded to consider the report: Whereupon, the amendment reported from the Committee of the whole House to the said report, was, on the question put thereupon, agreed to by the House. A motion was then made and seconded that the House do disagree with the Committee of the whole House in their agreement to the fourth rule contained in the said report, in the words following, to wit: "4th. After commencing the balloting for President, the House shall not adjourn until a choice is made:" And, the question being taken thereupon, it passed in the negative--yeas 47, nays 53. A motion was then made and seconded that the House do disagree with the Committee of the whole House in their agreement to the fifth rule contained in the said report, in the words following, to wit: "5th. The doors of the House shall be closed during the balloting, except against the officers of the House:" And, the question being taken thereupon, it passed in the negative--yeas 45, nays 54. _Resolved_, That this House doth agree with the Committee of the whole House in their agreement to the said report, as amended, in the words following, to wit: "That the following rules be observed in the choice by the House of Representatives of a President of the United States, whose term is to commence on the fourth day of March next. "1st. In the event of its appearing, upon the counting and ascertaining of the votes given for President and Vice President, according to the mode prescribed by the constitution, that no person has a constitutional majority, and the same shall have been duly declared and entered on the journals of this House, the Speaker, accompanied by the members of the House, shall return to their Chamber. "2d. Seats shall be provided in this House for the President and members of the Senate; and notification of the same shall be made to the Senate. "3d. The House, on their return from the Senate Chamber, it being ascertained that the constitutional number of States were present, shall immediately proceed to choose one of the persons from whom the choice is to be made for President; and in case upon the first ballot there shall not appear to be a majority of the States in favor of one of them, in such case the House shall continue to ballot for a President, without interruption by other business, until it shall appear that a President is duly chosen. "4th. After commencing the balloting for President, the House shall not adjourn until a choice be made. "5th. The doors of the House shall be closed during the balloting, except against the officers of the House. "6th. In balloting, the following mode shall be observed, to wit: The representatives of the respective States shall be so seated that the delegation of each State shall be together. The representatives of each State shall, in the first instance, ballot among themselves, in order to ascertain the votes of the State; and it shall be allowed, where deemed necessary by the delegation, to name one or more persons of the representation, to be tellers of the ballots. After the vote of each State is ascertained, duplicates thereof shall be made; and in case the vote of the State be for one person, then the name of that person shall be written on each of the duplicates; and in case the ballots of the State be equally divided, then the word "_divided_" shall be written on each duplicate, and the said duplicates shall be deposited in manner hereafter prescribed, in boxes to be provided. That, for the conveniently taking the ballots of the several representatives of the respective States, there be sixteen ballot boxes provided; and that there be, additionally, two boxes provided for the purpose of receiving the votes of the States; that after the delegation of each State shall have ascertained the vote of the State, the Sergeant-at-Arms shall carry to the respective delegations the two ballot boxes, and the delegation of each State, in the presence and subject to the examination of all the members of the delegation, shall deposit a duplicate of the vote of the State in each ballot box; and where there is more than one representative of a State, the duplicates shall not both be deposited by the same person. When the votes of the States are all thus taken in, the Sergeant-at-Arms shall carry one of the general ballot boxes to one table, and the other to a second and separate table. Sixteen members shall then be appointed as tellers of the ballots; one of whom shall be taken from each State, and be nominated by the delegation of the State from which he was taken. The said tellers shall be divided into two equal sets, according to such agreement as shall be made among themselves; and one of the said sets of tellers shall proceed to count the votes in one of the said boxes, and the other set the votes in the other box; and in the event of no appointment of teller by any delegation, the Speaker shall in such case appoint. When the votes of the States are counted by the respective sets of tellers, the result shall be reported to the House; and if the reports agree, the same shall be accepted as the true votes of the States; but if the reports disagree, the States shall immediately proceed to a new ballot, in manner aforesaid. "7th. If either of the persons voted for, shall have a majority of the votes of all the States, the Speaker shall declare the same; and official notice thereof shall be immediately given to the President of the United States, and to the Senate. "8th. All questions which shall arise after the balloting commences, and which shall be decided by the House voting _per capita_ to be incidental to the power of choosing the President, and which shall require the decision of the House, shall be decided by States, and without debate; and in case of an equal division of the votes of States, the question shall be lost." TUESDAY, February 10. _Credentials of Members._ Mr. DENT, from the standing Committee of Elections, made a report, which he delivered in at the Clerk's table, where the same was read, and is as follows: "The Committee of Elections having examined the credentials of several members claiming seats in this House, report: "That, by two certificates of the Governor of Massachusetts, under seal of the State, and dated the ninth day of January, one thousand eight hundred and one, it appears by one of the said certificates that Ebenezer Mattoon is duly elected to serve as a member of the House of Representatives of the United States, in the room of Samuel Lyman, stated therein to have resigned; and by the other certificate, that Levi Lincoln is duly elected as aforesaid, in the place of Dwight Foster, appointed a Senator of the United States. "It appears, also, by a letter under the signature of the Governor of Pennsylvania, dated the twenty-first day of January, one thousand eight hundred and one, and addressed to the Speaker, accompanied by authenticated documents, that John Stewart is duly chosen, in the place of Thomas Hartley, deceased. "The committee are of opinion that Ebenezer Mattoon is entitled to a seat, in the place of Samuel Lyman, resigned; Levi Lincoln, in the place of Dwight Foster, appointed a Senator of the United States; and John Stewart, in the place of Thomas Hartley, deceased." _Election of President._ _Resolved_, That this House will attend in the Chamber of the Senate on Wednesday next at twelve o'clock, for the purpose of being present at the opening and counting of the votes for President and Vice President of the United States; that Mr. RUTLEDGE and Mr. NICHOLAS be appointed tellers, to act jointly with the teller appointed on the part of the Senate, to make a list of the votes for President and Vice President of the United States, as they shall be declared; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, which shall be entered on the journals; and if it shall appear that a choice hath been made agreeably to the constitution, such entry on the journals shall be deemed a sufficient declaration thereof. _Ordered_, That the Clerk of this House do acquaint the Senate therewith. WEDNESDAY, February 11. On motion, it was _Resolved_, That all letters and packets to JOHN ADAMS, now President of the United States, after the expiration of his term of office, and during his life, may be transmitted by post, free of postage. _Ordered_, That a bill or bills be brought in pursuant to the said resolution; and that Mr. OTIS, Mr. THATCHER, and Mr. SHEPARD, be appointed a committee to prepare and bring in the same. _Election of President._ On this day, being the day by law appointed for counting the votes of the Electors of President and Vice President, there were present the following Representatives, respectively, that is to say: _From New Hampshire._--Abiel Foster, Jonathan Freeman, James Sheafe, and Samuel Tenney. _From Massachusetts._--Theodore Sedgwick (Speaker), John Read, Joseph P. Varnum, William Shepard, Peleg Wadsworth, Silas Lee, Lemuel Williams, George Thatcher, Bailey Bartlett, Phanuel Bishop, Harrison G. Otis, Nathan Read, Levi Lincoln, and Ebenezer Mattoon. _From Connecticut._--John Davenport, Roger Griswold, Samuel W. Dana, Chauncey Goodrich, Elizur Goodrich, William Edmond, and John C. Smith. _From Vermont._--Matthew Lyon, and Lewis R. Morris. _From Rhode Island._--Christopher G. Champlin, and John Brown. _From New York._--John Smith, Philip Van Cortlandt, Jonas Platt, Henry Glenn, John Thompson, Theodorus Bailey, John Bird, William Cooper, Lucas Elmendorph, and Edward Livingston. _From New Jersey._--James Linn, Aaron Kitchell, John Condit, James H. Imlay, and Franklin Davenport. _From Pennsylvania._--Robert Brown, Albert Gallatin, Andrew Gregg, John A. Hanna, Joseph Heister, John Wilkes Kittera, Michael Leib, Peter Muhlenberg, John Smilie, John Stewart, Richard Thomas, Robert Waln, and Henry Woods. _From Delaware._--James A. Bayard. _From Maryland._--John Chew Thomas, Samuel Smith, Gabriel Christie, William Craik, Joseph H. Nicholson, George Dent, George Baer, and John Dennis. _From Virginia._--Samuel J. Cabell, Matthew Clay, John Dawson, Joseph Eggleston, Thomas Evans, Samuel Goode, Edwin Gray, David Holmes, George Jackson, Henry Lee, Anthony New, John Nicholas, Robert Page, Josiah Parker, Leven Powell, John Randolph, Abram Trigg, John Trigg, and Lyttleton W. Tazewell. _From North Carolina._--Willis Alston, Joseph Dickson, William Barry Grove, Archibald Henderson, William H. Hill, Nathaniel Macon, Richard Dobbs Spaight, Richard Stanford, David Stone, and Robert Williams. _From South Carolina._--Robert Goodloe Harper, Benjamin Huger, Abraham Nott, Thomas Pinckney, and John Rutledge. _From Georgia._--Benjamin Taliaferro. _From Kentucky._--John Fowler, and Thomas T. Davis. _From Tennessee._--William Charles Cole Claiborne. Mr. SPEAKER, attended by the House, then went into the Senate Chamber, and took seats therein, when both Houses being assembled, Mr. RUTLEDGE and Mr. NICHOLAS, the tellers on the part of this House, together with Mr. WELLS, the teller on the part of the Senate, took seats at a table provided for them, in the front of the President of the Senate. The PRESIDENT of the Senate, in the presence of both Houses, proceeded to open the certificates of the Electors of the several States, beginning with the State of New Hampshire; and as the votes were read, the tellers on the part of each House, counted and took lists of the same, which being compared, were delivered to the President of the Senate, and are as follows: ---------------+---------+---------+---------+----------+---------+ STATES. |Thomas | Aaron | John |Charles C.| John | |Jefferson| Burr | Adams |Pinckney | Jay. | ---------------+---------+---------+---------+----------+---------+ New Hampshire | - | - | 6 | 6 | | Massachusetts | - | - | 16 | 16 | | Rhode Island | - | - | 4 | 3 | 1 | Connecticut | - | - | 9 | 9 | | Vermont | - | - | 4 | 4 | | New York | 12 | 12 | | | | New Jersey | - | - | 7 | 7 | | Pennsylvania | 8 | 8 | 7 | 7 | | Delaware | - | - | 3 | 3 | | Maryland | 5 | 5 | 5 | 5 | | Virginia | 21 | 21 | | | | Kentucky | 4 | 4 | | | | North Carolina | 8 | 8 | 4 | 4 | | Tennessee | 3 | 3 | | | | South Carolina | 8 | 8 | | | | Georgia | 4 | 4 | | | | | -- | -- | -- | -- | -- | | 73 | 73 | 65 | 64 | 1 | ---------------+---------+---------+---------+----------+---------+ _Recapitulation of the Votes of the Electors._ Thomas Jefferson, 73 Aaron Burr, 73 John Adams, 65 Charles Cotesworth Pinckney, 64 John Jay, 1 The PRESIDENT of the Senate, in pursuance of the duty enjoined upon him, announced the state of the votes to both Houses, and declared that THOMAS JEFFERSON of Virginia, and AARON BURR of New York, having the greatest number, and a majority of the votes of all the Electors appointed, and being equal, it remained for the House of Representatives to determine the choice. The two Houses then separated; and the House of Representatives being returned to their Chamber, proceeded, in the manner prescribed by the constitution, to the choice of a President of the United States, and the following members were appointed tellers of the respective States, to examine ballots of each State, pursuant to the sixth rule adopted by the House on the ninth instant, to wit: For the State of New Hampshire, Abiel Foster; Massachusetts, Harrison G. Otis; Rhode Island, Christopher G. Champlin; Connecticut, Roger Griswold; Vermont, Lewis R. Morris; New York, Theodorus Bailey; New Jersey, James Linn; Pennsylvania, Albert Gallatin; Delaware, James A. Bayard; Maryland, George Dent; Virginia, Lyttleton W. Tazewell; North Carolina, Nathaniel Macon; South Carolina, Thomas Pinckney; Georgia, Benjamin Taliaferro; Kentucky, John Fowler; Tennessee, William Charles Cole Claiborne. The members of the respective States then proceeded to ballot, in the manner prescribed by the rule aforesaid, and the tellers appointed by the States, respectively, having put duplicates of their votes into the general ballot boxes prepared for the purpose, the votes contained therein were taken out and counted, and the result being reported to the SPEAKER, he declared to the House that the votes of eight States had been given for THOMAS JEFFERSON, of Virginia; the votes of six States for AARON BURR, of New York; and that the votes of two States were divided. The constitution of the United States requiring that the votes of nine States should be necessary to constitute a choice of President of the United States, a motion was made and seconded, that the ballot for the President be repeated in one hour; and, the question being taken by States, it passed in the negative. The States then proceeded, in the manner aforesaid, to a second ballot; and, upon examination of the ballot boxes, it appeared that the votes of eight States had been given for THOMAS JEFFERSON, of Virginia; and the votes of six States for AARON BURR, of New York; and that the votes of two States were divided. The States then proceeded in like manner to a third ballot; and, upon examination thereof, the result was declared to be the same. The States then proceeded in like manner to a fourth ballot; and, upon examination thereof, the result was declared to be the same. The States then proceeded in like manner to a fifth ballot; and, upon examination thereof, the result was declared to be the same. The States then proceeded in like manner to a sixth ballot; and, upon examination thereof, the result was declared to be the same. The States then proceeded in like manner to a seventh ballot; and, upon examination thereof, the result was declared to be the same. A motion was then made and seconded, that the States proceed again to ballot in one hour; and, the question being taken thereupon, it was resolved in the affirmative--the votes of the States being ayes 12, noes 4. The time agreed upon by the last-mentioned vote being expired, the States proceeded, in manner aforesaid, to the eighth ballot; and, upon examination thereof, the result was declared to be the same, to wit: The votes of eight States for THOMAS JEFFERSON, of Virginia; the votes of six States for AARON BURR, of New York; and the votes of two States were divided. The States then proceeded to a ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth ballots; and, upon examination of the ballots, respectively, the result was declared to be the same. A motion was then made and seconded, that the States proceed again to ballot at ten o'clock; and the question being taken thereupon, it passed in the negative--the votes of the States being ayes 7, noes 9. _Ordered_, That the next ballot be repeated at nine o'clock, and not before. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the sixteenth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated in one hour. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the seventeenth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at eleven o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the eighteenth ballot; and upon examination thereof, the result was declared to be the same. A motion was then made and seconded, that the ballot be repeated to-morrow at eleven o'clock and not before. The question being taken thereupon, it passed in the negative. _Ordered_, That the ballot be repeated at twelve o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the nineteenth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated in one hour. FEBRUARY 12, 1 o'clock, A.M. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twentieth ballot; and, upon the examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at two o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-first ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at half after two o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-second ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at four o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-third ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at five o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-fourth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at six o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-fifth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at seven o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-sixth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at eight o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-seventh ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at twelve o'clock, and not before. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-eighth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated to-morrow at eleven o'clock, and not before. FEBRUARY 13. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-ninth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated to-morrow at twelve o'clock, and not before. FEBRUARY 14. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirtieth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at one o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-first ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at two o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-second ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at three o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-third ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated on Monday next at twelve o'clock, and not before. FEBRUARY 16. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-fourth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated to-morrow at twelve o'clock, and not before. FEBRUARY 17. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-fifth ballot; and, upon examination thereof, the result was declared to be the same. _Ordered_, That the ballot be repeated at one o'clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-sixth ballot; and, upon examination thereof, and the result being reported by the tellers to the SPEAKER, the SPEAKER declared to the House that the votes of ten States had been given for THOMAS JEFFERSON, of Virginia; the votes of four States for AARON BURR, of New York; and that the votes of two States had been given in blank; and, that, consequently, THOMAS JEFFERSON, of Virginia, had been, agreeably to the constitution, elected President of the United States, for the term of four years, commencing on the fourth day of March next.[60] _Ordered_, That Mr. PINCKNEY, Mr. TAZEWELL, and Mr. BAYARD, be appointed a committee to wait on the PRESIDENT OF THE UNITED STATES, and notify him that THOMAS JEFFERSON is elected President of the United States, for the term commencing on the fourth day of March next. _Ordered_, That a message be sent to the Senate to inform them that THOMAS JEFFERSON has been duly elected President of the United States, for the term of four years commencing on the fourth day of March next; and that the Clerk of this House do go with the said message. THURSDAY, February 19. _State Balances._ Mr. HILL, from the committee appointed to inquire into the expediency of extinguishing the claims of the United States for certain balances which, by the Commissioners appointed to settle the accounts between the United States and the several States, were reported to be due from several of the States to the United States, now made a report, accompanied by a bill to extinguish the claims of the United States, for certain balances reported to be due from several of the States to the United States; which was read, and the consideration of the said report and bill postponed until the third day of March next. The report is as follows: The committee appointed to inquire into the expediency of extinguishing the claims of the United States for certain balances which, by the Commissioners appointed to settle the accounts between the United States and the several States, were reported to be due from several of the States to the United States, report-- That the Commissioners aforesaid, on the liquidation of the accounts, reported that there were due from several of the States certain balances, that is to say: New York $2,074,846 Pennsylvania 76,709 Delaware 612,428 Maryland 151,430 Virginia 100,879 North Carolina 501,082 That Congress by an act passed the 15th February, 1799, engaged that any State so reported against might discharge itself from the claim, by an engagement in the form of a legislative act, to be passed before the first of April, 1800, to pay at the Treasury of the United States, within five years, the amount of the sum assumed by the United States in the debt of such State; or by expending moneys to the like amount within the time aforesaid in the erection of fortifications. And the said act of Congress provides further, that any payment or expenditure aforesaid shall be credited at the Treasury to the amount of stock which said payment or expenditure is equal to the purchase of at the market prices of stock. That the State of New York passed, within the time limited, the Legislative act required by the act of Congress aforesaid, and has already received credit at the Treasury for the sum of $222,810 06, for having previously expended in fortifications the sum of $136,533 82. That no other State has acceded to the terms offered by the said act of Congress. The committee further report, that, by the immediate operation of the said act of Congress, and of the Legislature of the State of New York, that State was exonerated and released from a very considerable part of the balance reported, to wit, the sum of $891,129 31, the balance reported against the State being to that amount more than the sum subscribed on the assumption of the United States in the debt of that State, the sum so subscribed amounts to $1,183,716 69; that the sum of $891,129 31, exceeds the whole amount of the balance reported to be due from any one of the States, and the aggregate amount of the whole of the balances, with the exception of the balance reported to be due from the State of Delaware. The committee, without entering into a discussion of the principles whereon the settlement of the accounts by the Commissioners was founded, remark, that as none of the States but the State of New York have manifested any disposition to pay the balances reported against them, whether the terms offered by the said act of Congress operate favorably or not, and none of them have assented to the justice or equity of the claim of the United States, and no means exist of exacting payment, it seems unwise to keep alive a claim which cannot be enforced, and may have the effect of producing irritation and exciting discontent; and as the act of Congress has already released the State of New York from so large an amount and enabled that State, with ease and advantage, to discharge the residue of the balance reported to be due from that State, the committee are of opinion that a release of the balances due from the other States is expedient, and for this purpose report a bill, which is submitted. SATURDAY, February 21. _President Elect._ Mr. PINCKNEY, from the committee instructed on the eighteenth instant to wait on the PRESIDENT elect, to notify him of his election, reported that the committee had performed that service, and addressed the PRESIDENT elect in the following words, to wit: "The committee beg leave to express their wishes for the prosperity of your Administration; and their sincere desire that it may promote your own happiness and the welfare of our country." To which the PRESIDENT elect was pleased to make the following reply: "I receive, gentlemen, with profound thankfulness, this testimony of confidence from the great Representative Council of our nation: it fills up the measure of that grateful satisfaction which had already been derived from the suffrages of my fellow-citizens themselves, designating me as one of those to whom they were willing to commit this charge, the most important of all others to them. In deciding between the candidates, whom their equal vote presented to your choice, I am sensible that age has been respected rather than more active and useful qualifications. "I know the difficulties of the station to which I am called, and feel, and acknowledge, my incompetence to them: But, whatsoever of understanding, whatsoever of diligence, whatsoever of justice, or of affectionate concern for the happiness of man, it has pleased Providence to place within the compass of my faculties, shall be called forth for the discharge of the duties confided to me, and for procuring to my fellow-citizens all the benefits which our constitution has placed under the guardianship of the General Government. "Guided by the wisdom and patriotism of those to whom it belongs to express the Legislative will of the nation, I will give to that will a faithful execution. "I pray you, gentlemen, to convey to the honorable body from which you are deputed, the homage of my humble acknowledgments, and the sentiments of zeal and fidelity by which I shall endeavor to merit these proofs of confidence from the nation, and its representatives; and accept, yourselves, my particular thanks for the obliging terms in which you have been pleased to communicate their will. "THOMAS JEFFERSON. "FEBRUARY 20, 1801." _Sedition Act._ The House then went into a Committee of the Whole, on the bill to repeal part of an act, entitled "An act in addition to the act, entitled 'An act for the punishment of certain crimes against the United States,'" and to continue in force the residue of the same. On the question that the said bill be engrossed for a third reading-- Mr. DAWSON said, when the law which this bill was intended to continue was first passed, I gave to it my dissent; I did it from a conviction on my mind that it does violate that constitution which I have sworn to support, and from a persuasion that the then state of things did not require it: that while it begat an unjust suspicion of the American character, it was a stain on our code of legislation. If these were my impressions at that time, some reflection since, aided by the productions of men whose names and talents will be long remembered, and a knowledge of the sentiments of the State from which I come, and of the people whom I represent, have confirmed those impressions, and have resolved me to vote against that bill in every shape and in every stage, and I hope that it will not be suffered to be engrossed. Sir, it is well remembered by me, nor can it be forgotten by any gentleman, on what grounds this law was advocated and first passed; it was then supported and pressed upon us as a necessary link in a chain of measures which a majority of the two Houses of Congress thought proper to adopt to meet a particular crisis--to guard against the supposed intrigues of a foreign nation--to give respectability and energy to our Executive--to prevent its falling into disrepute with the people, and to punish factious individuals. The history of the last two years has, I am persuaded, convinced gentlemen how mistaken were their opinions of the American character. With me they must now believe that whatever difference there may be in our political principles, when the safety, freedom, or honor of our country is threatened by a foreign nation, like a band of brothers we will rally round our government, and support it by means which the constitution of our country authorizes, and which the energy of the case may require. How far this law has given respectability or energy to our administration I will not pretend to say; the events of the present day are an ample comment on that point; but, after the experience which we have had, since some of the objects for which it was formed do not exist, and others have not been answered, I did hope that no attempt would have been made to continue it, and that it would have been suffered to expire like its twin-brother, the Alien law. In this hope, however, I have been disappointed; gentlemen have come forward and supported it with a zeal, not uncommon to them on other occasions, and unexpected in the present, when we were taught to believe that they were at least indifferent about it, and new reasons have been assigned for its continuance--formerly it was thought necessary to protect the administration against the people; and now, sir, it is wanted to guard individuals against an administration which may be weak or wicked. Experience has, I am persuaded, convinced gentlemen that it has not answered the first purpose, and I hope they will find it unnecessary for the latter. Into whatever hands the administration of our country may fall, its acts ought to be examined with that freedom which becomes freemen, and with that decency which becomes gentlemen; so long as they are guided by justice and wisdom, they will be supported with decision and firmness by the friends to the administration; whenever they shall descend from these great principles, the voice of the people will again sweep the actors from the political theatre. This law, sir, has been advocated, because it is said to ameliorate the common law of England, and on this argument much dependence has been placed; however, admitting it to be true, on a moment's reflection it will not be found to merit any consideration; for, sir, let it be remembered that the opponents to this law are also the opponents to the adoption of that law as the law of the United States, and do not think it authorized by the constitution; this is the doctrine which they have uniformly contended for, and which, pardon me if I say, has been established as fully as one point possibly can be; it is not therefore probable, nay, I think it impossible, that they ever should appeal to it to shield them. No, sir, supported by the justice and policy of their measures, I trust they will need the aid of neither the Alien, Sedition, nor Common law. Sir, it will be unnecessary for me to touch on the unconstitutionality of this law; it has been proven over and over again in this House, and in every part of the continent, and if what has been said and written has not convinced gentlemen, no effect would be produced by any thing which I could say. But, sir, as some of the objects for which the law was first enacted have passed by, and others have not been answered--as the friends to the approaching administration do not wish it for their protection, and the opponents will not need it for theirs, I do hope that those gentlemen who doubt about the constitutionality will vote with us, and that the bill will not be permitted to be engrossed. The question was then taken, and the engrossment refused, 49 to 53, as follows: YEAS.--George Baer, Bailey Bartlett, James A. Bayard, John Brown, Christopher G. Champlin, William Cooper, William Craik, Samuel W. Dana, John Davenport, Franklin Davenport, John Dennis, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Archibald Henderson, William H. Hill, James H. Imlay, John Wilkes Kittera, Henry Lee, Silas Lee, Ebenezer Mattoon, Lewis R. Morris, Harrison G. Otis, Robert Page, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, Nathan Read, John Rutledge, William Shepard, John C. Smith, James Sheafe, Samuel Tenney, Geo. Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas Elmendorph, John Fowler, Albert Gallatin, Samuel Goode, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, Benjamin Huger, George Jackson, Aaron Kitchell, Michael Leib, Levi Lincoln, Matthew Lyon, James Linn, Edward Livingston, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, Josiah Parker, John Randolph, John Smilie, John Smith, Samuel Smith, Richard Dobbs Spaight, Richard Stanford, David Stone, Thomas Sumter, John Stewart, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Lyttleton W. Tazewell, Philip Van Cortlandt, Joseph B. Varnum, and Robert Williams. WEDNESDAY, February 25. The House then resolved itself into a Committee of the Whole on the bill providing for a Naval Peace Establishment, and for other purposes; and, after some time spent therein, the Committee rose and reported several amendments thereto; which were read, but, an adjournment being called for, the House adjourned. FRIDAY, February 27. _Uniform System of Bankruptcy._ The House proceeded to consider the amendments reported yesterday, from the Committee of the whole House, to the bill to amend and continue in force the act, entitled "An act to establish a uniform system of bankruptcy throughout the United States;" whereupon the amendments reported from the Committee of the whole House were, on the question severally put thereon, agreed to by the House. The said bill was then further amended at the Clerk's table; and, on the question that the same be engrossed and read the third time, it was resolved in the affirmative--yeas 49, nays 42, as follows: YEAS.--George Baer, Bailey Bartlett, James A. Bayard, John Bird, John Brown, Christopher G. Champlin, William Cooper, William Craik, Samuel W. Dana, John Davenport, Franklin Davenport, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, Robert Goodloe Harper, Archibald Henderson, William H. Hill, Benjamin Huger, James H. Imlay, John Wilkes Kittera, Silas Lee, Edward Livingston, Lewis R. Morris, Harrison G. Otis, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, Nathan Read, William Shepard, Samuel Smith, John C. Smith, James Sheafe, Samuel Tenney, George Thatcher, John Chew Thomas, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Matthew Clay, William Charles Cole Claiborne, John Condit, John Dawson, Joseph Eggleston, John Fowler, Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, George Jackson, Aaron Kitchell, Michael Leib, Levi Lincoln, Matthew Lyon, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Randolph, John Smilie, John Smith, Richard Dobbs Spaight, Richard Stanford, David Stone, Thomas Sumter, John Stewart, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Lyttleton W. Tazewell, and Joseph B. Varnum. _Ordered_, That the said bill, with the amendments, be engrossed and read the third time to-morrow. _Naval Peace Establishment._ An engrossed bill providing for a Naval Peace Establishment, and for other purposes, was read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas 69, nays 18. SATURDAY, February 28. An engrossed bill to augment the salaries of the District Judges in the districts of Massachusetts, New York, Delaware, and Maryland, respectively, was read the third time, and passed. Mr. GREGG, from the committee to whom was this day referred the memorial of Thomas Claxton and others, made a report; which he delivered in at the Clerk's table, where the same was twice read and considered; whereupon, _Resolved_, That Thomas Claxton, James Mathers, and Thomas Dunn, be permitted to occupy, free of rent, until otherwise directed by Congress, the houses now in their respective possession, the property of the United States, in the public square in the City of Washington, on which the Capitol stands; together with a small piece of ground contiguous to each, for a garden, to be enclosed in such manner as not to interfere with any of the public streets or avenues running through the said square. _Ordered_, That the Clerk of this House do carry the said resolution to the Senate, and desire their concurrence. Mr. GRISWOLD, from the committee appointed, presented a bill further to amend the act, entitled "An act for establishing the temporary and permanent seat of the Government of the United States;" which was read twice, and committed to a Committee of the whole House on Monday next. The House resolved itself into a Committee of the Whole on the bill concerning the Mint; and, after some time spent therein, the committee rose and reported one amendment thereto; which was twice read, and agreed to by the House. _Ordered_, That the said bill, with the amendment, be engrossed, and read the third time to-day. _Remonstrance of Georgia._ Mr. DANA, from the committee to whom was referred, on the seventh ultimo, the memorial and remonstrance of the Legislature of the State of Georgia, made a report; which was read, and ordered to be committed to a Committee of the whole House on Monday next. The report is as follows: The Committee to whom was referred the Address and Remonstrance of the Legislature of the State of Georgia, submit the following Report: The remonstrance complains of two acts of Congress respecting the Mississippi Territory; one passed in April, one thousand seven hundred and ninety-eight, the other in May, one thousand eight hundred; and prays for their repeal. The tract of country called the Mississippi Territory, is bounded on the west by the River Mississippi, on the east by the river Appalachicola, or Chatahoochee, on the south by the Southern boundary of the United States, and on the north by a line drawn from the confluence of the river Yazoo with the Mississippi, due east to the before mentioned river Chatahoochee. For a view of the claim of the United States to the territory in question, the committee, in the present instance, deem it sufficient to refer to a report of the Attorney General, made to the Senate, at the first session of the fourth Congress, and to the report of a committee of the House of Representatives, made at the first session of the sixth Congress. The last-mentioned report also contains a summary statement of a variety of individual claims to land within the territory. The claim of Georgia is particularly stated in the remonstrance referred to your committee. The two acts of Congress, of which the remonstrance complains, have provided for an adjustment of those claims, through the agency of Commissioners; and also for the establishment of a government over the Mississippi Territory, similar to that established by the ordinance of Congress, of July one thousand seven hundred and eighty-seven, for the Territory north-west of the river Ohio; saving and reserving to the State of Georgia all her right or claim to the said territory. Commissioners have accordingly been appointed on the part of the United States, and also on the part of Georgia, for negotiating an adjustment of their respective claims. No report has yet been laid before Congress from the Commissioners of the United States; but the business of their commission is understood to be yet pending. Considering this state of things, the committee deem it proper for them to abstain from any particular discussion of the several claims to the Mississippi Territory, while a hope is cherished that an amicable adjustment may be ultimately effected. Nor do they think it expedient to adopt any measure which may be prejudicial to an object so desirable. The committee therefore submit the following resolution: "_Resolved_, That it would not be proper at this time for the House to take any further order on the Address and Remonstrance of the Legislature of the State of Georgia." MONDAY, March 2. The SPEAKER laid before the House a letter from the President of the United States elect, which was read, and is as follows: WASHINGTON, _March 2, 1801_. SIR: I beg leave through you to inform the Honorable the House of Representatives of the United States, that I shall take the oath which the constitution prescribes to the President of the United States before he enters on the execution of his office, on Wednesday, the fourth instant, at twelve o'clock, in the Senate Chamber. I have the honor to be, with the greatest respect, sir, your most obedient, and most humble servant, THOMAS JEFFERSON. HON. THEODORE SEDGWICK, _Speaker of the House of Representatives_. _Ordered_, That said letter do lie on the table. _Mausoleum to Washington._ The House proceeded to consider the amendments proposed by the Senate to the bill entitled "An act to erect a mausoleum for GEORGE WASHINGTON:" Whereupon, A motion was made and seconded to amend the amendment of the Senate to the first section of the said bill, by striking out, from the tenth line thereof, the word "fifty," for the purpose of inserting, in lieu thereof, the word "one hundred;" And the question being taken thereupon, it passed in the negative--yeas 34, nays 49. The said amendments of the Senate were then further amended at the Clerk's table, and, on the question that the House do agree to the said amendments as amended, it was resolved in the affirmative--yeas 46, nays 33, as follows: YEAS.--Theodorus Bailey, Bailey Bartlett, John Bird, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Matthew Clay, William C. C. Claiborne, Samuel W. Dana, John Davenport, John Dawson, Joseph Eggleston, John Fowler, Albert Gallatin, Chauncey Goodrich, Andrew Gregg, William Barry Grove, John A. Hanna, Joseph Heister, David Holmes, John Wilkes Kittera, Michael Leib, Levi Lincoln, Matthew Lyon, James Linn, Edward Livingston, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, John Read, Nathan Read, Wm. Shepard, John Smilie, John Smith, Samuel Smith, Richard Dobbs Spaight, David Stone, Benjamin Taliaferro, Samuel Tenney, John Chew Thomas, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, and Peleg Wadsworth. NAYS.--James A. Bayard, John Brown, Christopher G. Champlin, Gabriel Christie, William Craik, Franklin Davenport, John Dennis, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Henry Glenn, Roger Griswold, Robert Goodloe Harper, Archibald Henderson, Benjamin Huger, James H. Imlay, George Jackson, Henry Lee, Silas Lee, Ebenezer Mattoon, Robert Page, Thomas Pinckney, Jonas Platt, John Randolph, John C. Smith, Richard Stanford, Thomas Sumter, James Sheafe, John Stewart, George Thatcher, Lemuel Williams, and Henry Woods. TUESDAY, 6 o'clock P. M., March 3. _Thanks to the Speaker._ Mr. PAGE moved the following resolution: _Resolved_, That the thanks of the House be presented to Theodore Sedgwick for his conduct while in the chair of this House. The question was taken whether this motion was in order. It was decided to be in order. The yeas and nays were ordered. Mr. CHRISTIE said he should not point out the improprieties in the conduct of the Speaker while in the chair, otherwise than by his vote, though he possessed the right to call up to the recollection of the House the many inconsistencies his presidency had been marked with. In doing that, Mr. SPEAKER, I shall behave better to you than you have ever done to me. The cry of "order!" "order!" prevented any more being said, and Mr. C. sat down. The yeas and nays were then taken, and resulted--yeas 40, nays 35. Whereupon Mr. SPEAKER made his acknowledgments to the House in the manner following: Accept, gentlemen, my thanks, I pray you, for the respectful terms in which you have been pleased to express the opinion you entertain of the manner in which I have discharged the arduous duties of the station to which I was raised by your kind regard. Although I am conscious of having intended faithfully to execute the trust confided to this chair, yet I am sensible that, whatever success may have attended my endeavors, is justly attributable to the candid, honorable, and firm support which you have constantly afforded. I cannot lay the least claim to merit for any thing that I have done; because the generous confidence which you had reposed in me, demanded that I should devote all my feeble talents to your service. Being now about to retire from this House, and, as I hope, from the public councils for ever, permit me, gentlemen, to bid you, collectively and individually, an affectionate farewell. It is true that I have long wished to indulge repose in the shade of private life; but the moment of separation inflicts an anguish inexpressible by language. It is a separation from men of dignity of character, of honorable sentiments, and of disinterested patriotism; an association with whom has been my pride and solace amidst all the fatigue and vexation of public life. Of the friendship of such men, long, uninterrupted and cordial as it has been, I shall always cherish a grateful remembrance. May you receive the reward most grateful to generous spirits, the reward of witnessing, as the effects of your labors, the increasing prosperity, and happiness, and glory, of your country. As the last words which I shall utter, as a public man, allow me to declare, that those with whom I have had the honor, here, to act and think, whose confidence I have enjoyed, whose bosoms have been opened to my inspection, in my cool and reflected opinion, deserve all of esteem, affection, and gratitude, which their countrymen can bestow. On this occasion I deem myself authorized, from the present circumstances, to make this declaration; and I do it in the most solemn manner, in the presence of the assembled Representatives of America; and not only so, but in the awful presence of that heart-searching Being to whom I feel myself responsible for all my conduct. May the Almighty keep you in his holy protection. Farewell. A message from the Senate informed the House that the Senate have appointed a committee on their part, jointly, with such committee as may be appointed on the part of this House, to wait on the PRESIDENT OF THE UNITED STATES, and to inform him that Congress is ready to adjourn without day, unless he may have any further communications to make to them. The House proceeded to consider the foregoing resolution of the Senate, agreed to the same, and appointed Mr. PINCKNEY and Mr. GROVE the committee on the part of this House. Mr. PINCKNEY, from the joint committee of the two Houses, appointed to notify the PRESIDENT OF THE UNITED STATES of the proposed recess of Congress, reported that the committee had, according to order, performed that service, and that the PRESIDENT signified to them that he had no further communication to make, but the expression of his wishes for the health and happiness of the members, and a pleasant journey on their return to their homes and families. _Ordered_, That a message be sent to the Senate to inform them that this House, having completed the business before them, are now ready to adjourn without day; and that the Clerk of this House do go with the said message. The Clerk accordingly went with the said message; and being returned, Mr. SPEAKER adjourned the House, _sine die_.[61] SEVENTH CONGRESS.--FIRST SESSION. BEGUN AT THE CITY OF WASHINGTON, DECEMBER 7, 1801. PRESIDENT OF THE UNITED STATES,--THOMAS JEFFERSON. LIST OF MEMBERS SENATORS. _New Hampshire._--Simeon Olcott, James Sheafe. _Vermont._--S. R. Bradley, Nathaniel Chipman. _Massachusetts._--Jonathan Mason. _Rhode Island._--Christopher Ellery, Theodore Foster. _Connecticut._--James Hillhouse, Uriah Tracy. _New York._--John Armstrong, G. Morris. _New Jersey._--Aaron Ogden, Jonathan Dayton. _Pennsylvania._--George Logan, Peter Muhlenberg. _Delaware._--William H. Willes, Samuel White. _Maryland._--John E. Howard, Robert Wright. _Virginia._--Stevens T. Mason, Wilson C. Nicholas. _North Carolina._--Jesse Franklin, David Stone. _South Carolina._--John C. Calhoun, Jacob Read. _Georgia._--A. Baldwin, James Jackson. _Tennessee._--William Cocke, Joseph Anderson. _Kentucky._--John Breckenridge, John Browne. REPRESENTATIVES. _New Hampshire._--Abiel Foster, Joseph Pearce, George B. Upham. _Vermont._--Lewis R. Morris, Israel Smith. _Massachusetts._--John Bacon, Phanuel Bishop, Manasseh Cutler, Richard Cutts, William Eustis, Seth Hastings, Silas Lee, Eben Mattoon, Nathan Read, William Shepard, Josiah Smith, Joseph B. Varnum, P. Wadsworth, Lemuel Williams. _Rhode Island._--Joseph Stanton, Thomas Tillinghast. _Connecticut._--Samuel W. Dana, John Davenport, Calvin Goddard, Roger Griswold, Elias Perkins, John C. Smith, Benjamin Talmadge. _New York._--Theodore Bailey, Lucas Elmendorph, E. Livingston, Samuel L. Mitchill, Thomas Morris, John Smith, David Thomas, Philip Van Cortlandt, John P. Van Ness, Killian K. Van Rensselaer, Benjamin Walker. _New Jersey._--John Condit, Ebenezer Elmer, William Helms, James Mott, Henry Southard. _Pennsylvania._--Thomas Boude, Robert Brown, Andrew Gregg, John A. Hanna, Joseph Heister, Joseph Hemphill, William Hoge, William Jones, Michael Leib, John Smilie, John Stewart, Isaac Van Horne, Henry Woods. _Delaware._--James A. Bayard. _Maryland._--John Archer, John Campbell, John Dennis, Daniel Heister, Joseph H. Nicholson, Thomas Plater, Samuel Smith, Richard Sprigg. _Virginia._--Richard Brent, Samuel J. Cabell, Thomas Claiborne, John Clopton, John Dawson, William B. Giles, Edwin Gray, David Holmes, John Geo. Jackson, Anthony New, Thomas Newton, John Randolph, John Smith, John Stratton, John Taliaferro, Philip E. Thompson, Abram Trigg, John Trigg. _North Carolina._--Willis Alston, William B. Grove, Archibald Henderson, William H. Hill, James Holland, Charles Johnston, Nathaniel Macon, Richard Stanford, John Stanley, Robert Williams. _South Carolina._--William Butler, Benj. Huger, Thomas Lowndes, Thomas Moore, John Rutledge, Thomas Sumter. _Georgia._--John Milledge, Benjamin Taliaferro. _Mississippi._--Narsworthy Hunter. _Tennessee._--William Dickson. _Kentucky._--Thomas T. Davis, John Fowler. _Ohio._--Paul Fearing. PROCEEDINGS IN THE SENATE. MONDAY, December 7, 1801. The first session of the Seventh Congress of the United States commenced this day, conformably to the constitution, and the Senate assembled at the Capitol in the City of Washington. PRESENT: THEODORE FOSTER, from Rhode Island. NATHANIEL CHIPMAN, from Vermont. WILLIAM HILL WELLS and SAMUEL WHITE, from Delaware. JOHN E. HOWARD, from Maryland. STEVENS THOMPSON MASON and WILSON CARY NICHOLAS, from Virginia. ABRAHAM BALDWIN, from Georgia. JOSEPH ANDERSON and WILLIAM COOKE, from Tennessee. STEPHEN R. BRADLEY, appointed a Senator by the State of Vermont, for the remainder of the term for which their late Senator, Elijah Paine, was appointed; JOHN BRECKENRIDGE, appointed a Senator by the State of Kentucky; CHRISTOPHER ELLERY, appointed a Senator by the State of Rhode Island, for the remainder of the term for which their late Senator, Ray Greene, was appointed; JAMES JACKSON, appointed a Senator by the State of Georgia; GEORGE LOGAN, appointed a Senator by the Executive of the State of Pennsylvania, in the place of their late Senator, Peter Muhlenberg, resigned; SIMEON OLCOTT, appointed a Senator by the State of New Hampshire, for the remainder of the term for which their late Senator, Samuel Livermore, was appointed; URIAH TRACY, appointed a Senator by the State of Connecticut; and ROBERT WRIGHT, appointed a Senator by the State of Maryland, severally produced their credentials, and took their seats in the Senate. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President, _pro tempore_, as the constitution provides; and ABRAHAM BALDWIN was chosen. The PRESIDENT administered the oath, as the law prescribes, to Mr. BRADLEY, Mr. BRECKENRIDGE, Mr. ELLERY, Mr. JACKSON, Mr. OLCOTT, Mr. TRACY, and Mr. WRIGHT, and the affirmation to Mr. LOGAN. _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES and acquaint him that a quorum of the Senate is assembled, and that, in the absence of the VICE PRESIDENT, they have elected ABRAHAM BALDWIN, President of the Senate, _pro tempore_. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business, and that, in the absence of the VICE PRESIDENT, they have elected ABRAHAM BALDWIN, President of the Senate, _pro tempore_. A message from the House of Representatives informed the Senate that a quorum of the House is assembled, and have elected NATHANIEL MACON their Speaker, and are ready to proceed to business. _Ordered_, That Messrs. ANDERSON and JACKSON be a committee on the part of the Senate, together with such committee as the House of Representatives may appoint on their part, to wait on the PRESIDENT OF THE UNITED STATES and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. A message from the House of Representatives informed the Senate that the House agree to the resolution of the Senate for the appointment of a joint committee to wait on the PRESIDENT OF THE UNITED STATES, and have appointed a committee on their part. Mr. ANDERSON reported, from the joint committee, that they had waited on the PRESIDENT OF THE UNITED STATES and acquainted him that a quorum of both Houses is assembled, and that the PRESIDENT OF THE UNITED STATES informed the committee that he would make a communication to them by message to-morrow. TUESDAY, December 8. JONATHAN DAYTON and AARON OGDEN, from the State of New Jersey, and JESSE FRANKLIN, from the State of North Carolina, severally attended. _Resolved_, That two Chaplains, of different denominations, be appointed to Congress for the present session, one by each House, who shall interchange weekly. _Presidents Message._ The following letter and Message were received from the PRESIDENT OF THE UNITED STATES, by Mr. Lewis, his Secretary: DECEMBER 8, 1801. SIR: The circumstances under which we find ourselves at this place rendering inconvenient the mode heretofore practised, of making by personal address the first communications between the Legislative and Executive branches, I have adopted that by Message, as used on all subsequent occasions through the session. In doing this I have had principal regard to the convenience of the Legislature, to the economy of their time, to their relief from the embarrassment of immediate answers, on subjects not yet fully before them, and to the benefits thence resulting to the public affairs. Trusting that a procedure founded in these motives will meet their approbation, I beg leave, through you, sir, to communicate the enclosed Message, with the documents accompanying it, to the honorable the Senate, and pray you to accept, for yourself and them, the homage of my high respect and consideration.[62] THOMAS JEFFERSON. The Hon. the PRESIDENT of the Senate. _Fellow-citizens of the Senate, and House of Representatives_: It is a circumstance of sincere gratification to me that, on meeting the great council of our nation, I am able to announce to them, on grounds of reasonable certainty, that the wars and troubles which for so many years afflicted our sister nations, have at length come to an end; and that the communications of peace and commerce are once more opening among them. Whilst we devoutly return thanks to the beneficent Being who has been pleased to breathe into them the spirit of conciliation and forgiveness, we are bound with peculiar gratitude, to be thankful to him that our own peace has been preserved through so perilous a season, and ourselves permitted quietly to cultivate the earth, and to practise and improve those arts which tend to increase our comforts. The assurances, indeed, of friendly disposition, received from all the powers with whom we have principal relations, had inspired a confidence that our peace with them would not have been disturbed. But a cessation of irregularities which had affected the commerce of neutral nations, and of the irritations and injuries produced by them, cannot but add to this confidence, and strengthens, at the same time, the hope that wrongs committed on unoffending friends, under a pressure of circumstances, will now be reviewed with candor, and will be considered as founding just claims of restitution for the past, and new assurances for the future. Among our Indian neighbors, also, a spirit of peace and friendship generally prevails; and I am happy to inform you that the continued efforts to introduce among them the implements and the practice of husbandry, and of the household arts, have not been without success; that they are becoming more and more sensible of the superiority of this dependence for clothing and subsistence, over the precarious resources of hunting and fishing; and already we are able to announce that, instead of that constant diminution of their numbers, produced by their wars and their wants, some of them begin to experience an increase of population. To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demands admitted but one answer. I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace; but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers, having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part. The bravery exhibited by our citizens on that element will, I trust, be a testimony to the world that it is not the want of that virtue which makes us seek their peace, but a conscientious desire to direct the energies of our nation to the multiplication of the human race, and not to its destruction. Unauthorized by the constitution, without the sanction of Congress, to go beyond the line of defence, the vessel, being disabled from committing further hostilities, was liberated with its crew. The Legislature will doubtless consider whether, by authorizing measures of offence also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that, in the exercise of this important function confided by the constitution to the Legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight. I wish I could say that our situation with all the other Barbary States was entirely satisfactory. Discovering that some delays had taken place in the performance of certain articles stipulated by us, I thought it my duty, by immediate measures for fulfilling them, to vindicate to ourselves the right of considering the effect of departure from stipulation on their side. From the papers which will be laid before you, you will be enabled to judge whether our treaties are regarded by them as fixing at all the measure of their demands, or, as guarding from the exercise of force our vessels within their power; and to consider how far it will be safe and expedient to leave our affairs with them in their present posture. I lay before you the result of the census lately taken of our inhabitants, to a conformity with which we are now to reduce the ensuing ratio of representation and taxation. You will perceive that the increase of numbers, during the last ten years, proceeding in geometrical ratio, promises a duplication in little more than twenty-two years. We contemplate this rapid growth, and the prospect it holds up to us, not with a view to the injuries it may enable us to do to others in some future day, but to the settlement of the extensive country still remaining vacant within our limits, to the multiplication of men susceptible of happiness, educated in the love of order, habituated to self-government, and valuing its blessings above all price. Other circumstances, combined with the increase of numbers, have produced an augmentation of revenue arising from consumption, in a ratio far beyond that of population alone; and, though the changes in foreign relations now taking place, so desirably for the whole world, may for a season affect this branch of revenue, yet, weighing all probabilities of expense, as well as of income, there is reasonable ground of confidence that we may now safely dispense with all the internal taxes--comprehending excise, stamps, auctions, licenses, carriages, and refined sugars; to which the postage on newspapers may be added, to facilitate the progress of information; and that the remaining sources of revenue will be sufficient to provide for the support of Government, to pay the interest of the public debts, and to discharge the principals within shorter periods than the laws or the general expectation had contemplated. War, indeed, and untoward events, may change this prospect of things, and call for expenses which the imposts could not meet. But sound principles will not justify our taxing the industry of our fellow-citizens to accumulate treasure for wars to happen we know not when, and which might not, perhaps, happen, but from the temptations offered by that treasure. These views, however, of reducing our burdens, are formed on the expectation that a sensible, and at the same time a salutary, reduction may take place in our habitual expenditures. For this purpose those of the civil Government, the army, and navy, will need revisal. When we consider that this Government is charged with the external and mutual relations only of these States; that the States themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices and officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote. I will cause to be laid before you an essay towards a statement of those who, under public employment of various kinds, draw money from the Treasury, or from our citizens. Time has not permitted a perfect enumeration, the ramifications of office being too multiplied and remote to be completely traced in a first trial. Among those who are dependent on Executive discretion, I have begun the reduction of what was deemed unnecessary. The expenses of diplomatic agency have been considerably diminished. The inspectors of internal revenue, who were found to obstruct the accountability of the institution, have been discontinued. Several agencies, created by Executive authority, on salaries fixed by that also, have been suppressed, and should suggest the expediency of regulating that power by law, so as to subject its exercise to Legislative inspection and sanction. Other reformations of the same kind will be pursued with that caution which is requisite, in removing useless things, not to injure what is retained. But the great mass of public offices is established by law, and therefore by law alone can be abolished. Should the Legislature think it expedient to pass this roll in review, and try all its parts by the test of public utility, they may be assured of every aid and light which Executive information can yield. Considering the general tendency to multiply offices and dependencies, and to increase expenses to the ultimate term of burden which the citizens can bear, it behooves us to avail ourselves of every occasion which presents itself for taking off the surcharge; that it never may be seen here that, after leaving to labor the smallest portion of its earnings on which it can subsist, Government shall itself consume the whole residue of what it was instituted to guard. In our care, too, of the public contributions intrusted to our direction, it would be prudent to multiply barriers against their dissipation, by appropriating specific sums to every specific purpose susceptible of definition; by disallowing all applications of money varying from the appropriation in object, or transcending it in amount; by reducing the undefined field of contingencies, and thereby circumscribing discretionary powers over money; and by bringing back to a single department all accountabilities for money, where the examinations may be prompt, efficacious, and uniform. An account of the receipts and expenditures of the last year, as prepared by the Secretary of the Treasury, will, as usual, be laid before you. The success which has attended the late sales of the public lands shows that, with attention, they may be made an important source of receipt. Among the payments those made in discharge of the principal and interest of the national debt, will show that the public faith has been exactly maintained. To these will be added an estimate of appropriations necessary for the ensuing year. This last will, of course, be affected by such modifications of the system of expense as you shall think proper to adopt. A statement has been formed by the Secretary of War, on mature consideration, of all the posts and stations where garrisons will be expedient, and of the number of men requisite for each garrison. The whole amount is considerably short of the present Military Establishment. For the surplus no particular use can be pointed out. For defence against invasion their number is as nothing; nor is it conceived needful or safe that a standing army should be kept up in time of peace, for that purpose. Uncertain as we must ever be of the particular point in our circumference where an enemy may choose to invade us, the only force which can be ready at every point, and competent to oppose them, is the body of neighboring citizens, as formed into a militia. On these, collected from the parts most convenient, in numbers proportioned to the invading force, it is best to rely, not only to meet the first attack, but if it threatens to be permanent, to maintain the defence until regulars may be engaged to relieve them. These considerations render it important that we should, at every session, continue to amend the defects which from time to time show themselves in the laws for regulating the militia, until they are sufficiently perfect: nor should we now, or at any time, separate, until we can say that we have done every thing for the militia which we could do were an enemy at our door. The provision of military stores on hand will be laid before you, that you may judge of the additions still requisite. With respect to the extent to which our naval preparations should be carried, some difference of opinion may be expected to appear; but just attention to the circumstances of every part of the Union will doubtless reconcile all. A small force will probably continue to be wanted for actual service in the Mediterranean. Whatever annual sum beyond that you may think proper to appropriate to naval preparations, would perhaps be better employed in providing those articles which may be kept without waste or consumption, and be in readiness when any exigence calls them into use. Progress has been made, as will appear by papers now communicated, in providing materials for seventy-four gun ships, as directed by law. How far the authority given by the Legislature for procuring and establishing sites for naval purposes, has been perfectly understood and pursued in the execution, admits of some doubt. A statement of the expenses already incurred on that subject is now laid before you. I have, in certain cases, suspended or slackened these expenditures, that the Legislature might determine whether so many yards are necessary as have been contemplated. The works at this place are among those permitted to go on; and five of the seven frigates directed to be laid up, have been brought and laid up here, where, besides the safety of their position, they are under the eye of the Executive Administration, as well as of its agents; and where yourselves also will be guided by your own view in the legislative provisions respecting them, which may, from time to time, be necessary. They are preserved in such condition, as well the vessels as whatever belongs to them, as to be at all times ready for sea at a short warning. Two others are yet to be laid up, as soon as they shall receive the repairs requisite to put them also into sound condition. As a superintending officer will be necessary at each yard, his duties and emoluments, hitherto fixed by the Executive, will be a more proper subject for legislation. A communication will also be made of our progress in the execution of the law respecting the vessels directed to be sold. The fortifications of our harbors, more or less advanced, present considerations of great difficulty. While some of them are on a scale sufficiently proportioned to the advantages of their position, to the efficacy of their protection, and the importance of the points within it, others are so extensive, will cost so much in their first erection, so much in their maintenance, and require such a force to garrison them, as to make it questionable what is best now to be done. A statement of those commenced or projected; of the expenses already incurred; and estimates of their future cost, as far as can be foreseen, shall be laid before you, that you may be enabled to judge whether any alteration is necessary in the laws respecting this subject. Agriculture, manufactures, commerce, and navigation, the four pillars of our prosperity, are then most thriving when left most free to individual enterprise. Protection from casual embarrassments, however, may sometimes be seasonably interposed. If, in the course of your observations or inquiries, they should appear to need any aid within the limits of our constitutional powers, your sense of their importance is a sufficient assurance they will occupy your attention. We cannot, indeed, but all feel an anxious solicitude for the difficulties under which our carrying trade will soon be placed. How far it can be relieved, otherwise than by time, is a subject of important consideration. The Judiciary system of the United States, and especially that portion of it recently erected, will, of course, present itself to the contemplation of Congress; and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid. And while on the Judiciary organization, it will be worthy of your consideration whether the protection of the inestimable institution of juries has been extended to all the cases involving the security of our persons and property. Their impartial selection also being essential to their value, we ought further to consider whether that is sufficiently secured in those States where they are named by a marshal depending on Executive will, or designated by the court, or by officers dependent on them. I cannot omit recommending a revisal of the laws on the subject of naturalization. Considering the ordinary chances of human life, a denial of citizenship under a residence of fourteen years, is a denial to a great proportion of those who ask it; and controls a policy pursued, from their first settlement, by many of these States, and still believed of consequence to their prosperity. And shall we refuse to the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our fathers arriving in this land? Shall oppressed humanity find no asylum on this globe? The constitution, indeed, has wisely provided that, for admission to certain offices of important trust, a residence shall be required sufficient to develope character and design. But might not the general character and capabilities of a citizen be safely communicated to every one manifesting a bona fide purpose of embarking his life and fortunes permanently with us? with restrictions, perhaps, to guard against the fraudulent usurpation of our flag? an abuse which brings so much embarrassment and loss on the genuine citizen, and so much danger to the nation of being involved in war, that no endeavor should be spared to detect and suppress it. These, fellow-citizens, are the matters respecting the state of the nation which I have thought of importance to be submitted to your consideration at this time. Some others of less moment, or not yet ready for communication, will be the subject of separate Messages. I am happy in this opportunity of committing the arduous affairs of our Government to the collected wisdom of the Union. Nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution. The prudence and temperance of your discussions will promote, within your own walls, that conciliation which so much befriends rational conclusion; and by its example will encourage among our constituents that progress of opinion which is tending to unite them in object and in will. That all should be satisfied with any one order of things, is not to be expected; but I indulge the pleasing persuasion that the great body of our citizens will cordially concur in honest and disinterested efforts, which have for their object to preserve the General and State Governments in their constitutional form and equilibrium; to maintain peace abroad, and order and obedience to the laws at home; to establish principles and practices of administration favorable to the security of liberty and property, and to reduce expenses to what is necessary for the useful purposes of Government. THOMAS JEFFERSON. DECEMBER 8, 1801. The Letter and Message were read, and ordered to be printed for the use of the Senate. The papers referred to in the Message were in part read, and the Senate adjourned. WEDNESDAY, December 9. The Senate proceeded to the appointment of a Chaplain to Congress on their part, and the Rev. Mr. GANTT was elected. THURSDAY, December 10. _Resolved_, That James Mathers, Sergeant-at-Arms and Doorkeeper to the Senate, be, and he is hereby, authorized to employ one additional assistant, and two horses, for the purpose of performing such services as are usually required of the Doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him weekly for the purpose during the session, and for twenty days after. FRIDAY, December 11. JOHNATHAN MASON, from the State of Massachusetts, and JAMES SHEAFE, from the State of New Hampshire, severally attended. MONDAY, December 14. JAMES HILLHOUSE, from the State of Connecticut, and DWIGHT FOSTER, from the State of Massachusetts, severally attended. A message from the House of Representatives informed the Senate that the House have elected the Reverend WILLIAM PARKINSON a Chaplain to Congress on their part. SATURDAY, December 19. GOUVERNEUR MORRIS, from the State of New York, attended. THOMAS SUMTER, appointed a Senator by the Legislature of the State of South Carolina, in the place of their late Senator, Charles Pinckney, resigned, produced his credentials, was qualified, and took his seat in the Senate. MONDAY, December 21. The credentials of GEORGE LOGAN, appointed a Senator by the Legislature of the State of Pennsylvania, were presented and read; and the affirmation prescribed by law was administered by the President. TUESDAY, December 22. DAVID STONE, from the State of North Carolina, attended. MONDAY, December 28. JOHN EWING COLHOUN, appointed a Senator by the Legislature of the State of South Carolina, produced his credentials, was qualified, and took his seat in the Senate. THURSDAY, December 31. Mr. BRECKENRIDGE presented the petition of Isaac Zane, stating that he was made a prisoner at the age of nine years by the Wyandot Indians, with whom he remained until he became of age; had a family by a woman of that nation, and a tract of land was assigned him by the said nation, on a branch of the Great Miami, and which tract of land was ceded to the United States by a recent treaty with the said Wyandot Indians, and praying such relief as may be deemed equitable; and the petition was read, and committed to Messrs. BRECKENRIDGE, TRACY, and OGDEN, to consider and report thereon. TUESDAY, January 5, 1802. Mr. BROWN, from the State of Kentucky, attended. _Reporting the Debates._ The PRESIDENT laid before the Senate a letter signed Samuel H. Smith, stating that he was desirous of taking notes of the proceedings of the Senate, in such manner as to render them correct: Whereupon, _Resolved_, That any stenographer desirous to take the debates of the Senate on Legislative business, may be admitted for that purpose, at such place within the area of the Senate Chamber as the President may allot: And, on motion to reconsider the above resolution, it passed in the affirmative--yeas 17, nays 9. YEAS.--Messrs. Anderson, Breckenridge, Cocke, Dayton, Ellery, Dwight Foster, Hillhouse, Howard, Logan, Jonathan Mason, Morris, Ogden, Olcott, Sumter, Tracy, White, and Wright. NAYS.--Messrs. Baldwin, Brown, Chipman, T. Foster, Franklin, Jackson, Nicholas, Sheafe, and Stone. On motion, to amend the resolution, by adding, after the word stenographer, "He having given bond in the sum of ----, with two sufficient sureties, in the sum of ---- each, for his good conduct," it passed in the negative--yeas 10, nays 18, as follows: YEAS.--Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, Morris, Ogden, Olcott, Sheafe, and Tracy. NAYS.--Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, J. Mason, Nicholas, Stone, Sumter, White, and Wright. On motion, to agree to the original resolution, amended by adding the words "or note-taker," after the words stenographer, it passed in the affirmative--yeas 16, nays 12, as follows: YEAS.--Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright. NAYS.--Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Sheafe, Tracy, and White. So it was _Resolved_, That any stenographer, _or note-taker_, desirous of taking the debates of the Senate on Legislative business, may be admitted for that purpose at such place, within the area of the Senate Chamber, as the President shall allot.[63] WEDNESDAY, January 6. _Judiciary System._ Mr. MASON called for the reading of the Message, which was in part read; when the further reading of the whole document was suspended, and that part only read, which relates to the Judiciary System. Upon which Mr. BRECKENRIDGE, from Kentucky, rose, and stated that two days ago he had given notice that on this day he would submit to the consideration of the Senate two resolutions respecting the Judiciary Establishment of the United States. As, however, those resolutions were not necessarily connected, and as they might be distinctly discussed, he would at present confine himself to moving the first resolution; without however foreclosing to himself the right of submitting the second after the disposition of the first. He, therefore, moved that the act passed last session _respecting the Judiciary Establishment_ of the United States be repealed. [This is the act which created sixteen new circuit judges.] FRIDAY, January 8. _Judiciary System._ Agreeably to the order of the day, the Senate proceeded to the consideration of the motion made on the 6th instant, to wit: "That the act of Congress passed on the 13th day of February, 1801, entitled 'An act to provide for the more convenient organization of the Courts of the United States,' ought to be repealed."[64] Mr. BRECKENRIDGE then rose and addressed the PRESIDENT, as follows: It will be expected of me, I presume, sir, as I introduced the resolution now under consideration, to assign my reasons for wishing a repeal of this law. This I shall do; and shall endeavor to show: 1. That the law is unnecessary and improper, and was so at its passage; and 2. That the courts and judges created by it, can and ought to be abolished. 1st. That the act under consideration was unnecessary and improper, is, to my mind, no difficult task to prove. No increase of courts or judges could be necessary or justifiable, unless the existing courts and judges were incompetent to the prompt and proper discharge of the duties consigned to them. To hold out a show of litigation, when in fact little exists, must be impolitic; and to multiply expensive systems, and create hosts of expensive officers, without having experienced an actual necessity for them, must be a wanton waste of the public treasure. The document before us shows that, at the passage of this act, the existing courts, not only from their number, but from the suits depending before them, were fully competent to a speedy decision of those suits. It shows, that on the 15th day of June last, there were depending in all the circuit courts, (that of Maryland only excepted, whose docket we have not been furnished with,) one thousand five hundred and thirty-nine suits. It shows that eight thousand two hundred and seventy-six suits of every description have come before those courts, in ten years and upwards. From this it appears, that the annual average amount of suits has been about eight hundred. But sundry contingent things have conspired to swell the circuit court dockets. In Maryland, Virginia, and in all the Southern and South-western States, a great number of suits have been brought by British creditors; this species of controversy is nearly at an end. In Pennsylvania, the docket has been swelled by prosecutions in consequence of the Western insurrection, by the disturbances in Bucks and Northampton Counties: and by the sedition act. These I find amount in that State to two hundred and forty suits. In Kentucky, non-resident land claimants have gone into the federal court from a temporary convenience: because, until within a year or two past, there existed no court of general jurisdiction co-extensive with the whole State. I find, too, that of the six hundred and odd suits which have been commenced there, one hundred and ninety-six of them have been prosecutions under the laws of the United States. In most of the States there have been prosecutions under the sedition act. This source of litigation is, I trust, for ever dried up. And, lastly, in _all_ the States a number of suits have arisen under the excise law; which source of controversy will, I hope, before this session terminates, be also dried up. But this same document discloses another important fact; which is, that notwithstanding all these untoward and temporary sources of federal adjudication, the suits in those courts are _decreasing_; for, from the dockets exhibited (except Kentucky and Tennessee, whose suits are summed up in the aggregate) it appears, that in 1799 there were one thousand two hundred and seventy-four, and in 1800 there were six hundred and eighty-seven suits commenced; showing a decrease of five hundred and eighty-seven suits. Could it be necessary then to _increase_ courts when suits were _decreasing_? Could it be necessary to multiply judges, when their duties were diminishing? And will I not be justified, therefore, in affirming, that the law was unnecessary, and that Congress acted under a mistaken impression, when they multiplied courts and judges at a time when litigation was actually decreasing? But, sir, the decrease of business goes a small way in fixing my opinion on this subject. I am inclined to think, that so far from there having been a necessity at this time for an increase of courts and judges, that the time never will arrive when America will stand in need of thirty-eight federal judges. Look, sir, at your constitution, and see the judicial power there consigned to federal courts, and seriously ask yourself can there be fairly extracted from those powers subjects of litigation sufficient for six supreme and thirty-two inferior court judges? To me it appears impossible. The judicial powers given to the federal courts were never intended by the constitution to embrace, exclusively, subjects of litigation, which could, with propriety, be left with the State courts. Their jurisdiction was intended principally to extend to great national and foreign concerns. Except cases arising under the laws of the United States, I do not at present recollect but three or four kinds in which their power extends to subjects of litigation, in which private persons only are concerned. And can it be possible, that with a jurisdiction embracing so small a portion of private litigation, in a great part of which the State courts might, and ought to participate, that we can stand in need of thirty-eight judges, and expend in judiciary regulations the annual sum of $137,000? No other country, whose regulations I have any knowledge of, furnishes an example of a system so prodigal and extensive. In England, whose courts are the boast, and said to be the security of the rights of the nation, every man knows there are but twelve judges and three principal courts. These courts embrace, in their original or appellate jurisdiction, almost the whole circle of human concerns. The King's Bench and Common Pleas, which consist of four judges each, entertain all the common law suits of 40_s._ and upwards, originating among nine millions of the most commercial people in the world. They moreover revise the proceedings of not only all the petty courts of record in the kingdom, even down to the courts of piepoudre, but also of the Court of King's Bench in Ireland; and these supreme courts, after centuries of experiment, are found to be fully competent to _all_ the business of the kingdom. I will now inquire into the power of Congress to put down these additional courts and judges. First, as to the courts, Congress are empowered by the constitution "from time to time, to ordain and establish inferior courts." The act now under consideration, is a legislative construction of this clause in the constitution, that Congress may abolish as well as create these judicial officers; because it does expressly, in the twenty-seventh section of the act, abolish the then existing inferior courts, for the purpose of making way for the present. This construction, I contend, is correct; but it is equally pertinent to my object, whether it be or be not. If it be correct, then the present inferior courts may be abolished as constitutionally as the last; if it be not, then the law for abolishing the former courts, and, establishing the present, was unconstitutional, and consequently repealable. But independent of this legislative construction, on which I do not found my opinion, nor mean to rely my argument, there is little doubt indeed, in my mind, as to the power of Congress on this law. The first section of the third article vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress may, from time to time, ordain and establish. By this clause Congress _may_, from time to time, establish inferior courts; but it is clearly a discretionary power, and they _may not_ establish them. The language of the constitution is very different when regulations are not left discretional. For example, "The trial," says the constitution, "of all crimes '(except in cases of impeachment) shall be by jury: representatives and direct taxes shall be apportioned according to numbers. All revenue bills shall originate in the House of Representatives,'" &c. It would, therefore, in my opinion, be a perversion, not only of language, but of intellect, to say, that although Congress may, from time to time, establish inferior courts, yet, when established, that they shall not be abolished by a subsequent Congress possessing equal powers. It would be a paradox in legislation. 2d. As to the judges. The Judiciary Department is so constructed as to be sufficiently secured against the improper influence of either the Executive or Legislative Departments. The courts were organized and established by the Legislature, and the Executive creates the judges. Being thus organized, the constitution affords the proper checks to secure their honesty and independence in office. It declares they shall not be removed from office during good behavior; nor their salaries diminished during their continuance in office. From this it results, that a judge, after his appointment, is totally out of the power of the President, and his salary secured against legislative diminution, during his continuance in office. The first of these checks, which protects a judge in his office during good behavior, applies to the President only, who would otherwise have possessed the power of removing him, like all other officers, at pleasure; and the other check, forbidding a diminution of their salaries, applies to the Legislature only. They are two separate and distinct checks, furnished by the constitution against two distinct departments of the Government; and they are the only ones which are or ought to have been furnished on the subject. But because the constitution declares that a judge shall hold his office during good behavior, can it be tortured to mean, that he shall hold his office after it is abolished? Can it mean, that his tenure should be limited by behaving well in an office which did not exist? Can it mean that an office may exist, although its duties are extinct? Can it mean, in short, that the shadow, to wit, the judge, can remain, when the substance, to wit, the office, is removed? It must have intended all these absurdities, or it must admit a construction which will avoid them. The construction obviously is, that a judge should hold an existing office, so long as he did his duty in that office; and not that he should hold an office that did not exist, and perform duties not provided by law. Had the construction which I contend against been contemplated by those who framed the constitution, it would have been necessary to have declared, explicitly, that the judges should hold their offices and their salaries during good behavior. Let me not be told, sir, that the salaries in the present case are inconsiderable, and ought not to be withheld; and that the doctrine is not a dangerous one. I answer, it is the principle I contend against; and if it is heterodox for one dollar, it is equally so for a million. But I contend the principle, if once admitted, may be extended to destructive lengths. Suppose it should hereafter happen, that those in power should combine to provide handsomely for their friends, could any way so plain, easy, and effectual, present itself, as by creating courts, and filling them with those friends? Might not sixty as well as sixteen, with salaries of twenty thousand, instead of two thousand dollars, be provided for in this way? There is another difficulty under this construction still to encounter, and which also grows out of the constitution: By the constitution, a new State may be formed by the junction of two or more States, with their assent and that of Congress. If this doctrine, once a judge and always a judge, be correct, what would you do in such an event, with the district judges of the States who formed that junction? Both would be unnecessary, and you would have, in a single State, two judges of equal and concurrent jurisdiction; or one a real judge, with an office, and another a quasi judge, without an office. The States also forming such junction, would be equally embarrassed with their State judges; for the same construction would be equally applicable to them. Upon this construction, also, an infallibility is predicated, which it would be arrogance in any human institution to assume, and which goes to cut up legislation by the roots. We would be debarred from that which is indulged to us from a higher source, and on subjects of higher concern than legislation; I mean a retraction from and correction of our errors. On all other subjects of legislation we are allowed, it seems, to change our minds, except on judiciary subjects, which, of all others, are the most complex and difficult. I appeal to our own statute book to prove this difficulty: for in ten years Congress have passed no less than twenty-six laws on this subject. Mr. J. MASON, of Massachusetts, said, it would be agreed on all hands that this was one of the most important questions that ever came before a Legislature. Were he not of this opinion he would not have risen to offer his sentiments. But he felt so deep an interest in the question, and from the respect which he entertained for the district of country he represented, he deemed it his duty to meet the subject, and not be satisfied with giving to it his silent negative. The constitution, in the construction of the Executive, Legislative, and Judiciary Departments, had assigned to each a different tenure. The President was chosen for four years; the Senate for six years, subject to a prescribed rotation biennially; the House of Representatives for two years; and the Judiciary during good behavior. It says to the President, at the expiration of every four years, you shall revert to the character of a private citizen, however splendid your talents or conspicuous your virtue. Why? Because you have assigned to you powers which it is dangerous to exercise. You have the power of creating offices and officers. You have prerogatives. The temptation to an abuse of your power is great. Such has been the uniform experience of ages. The constitution holds the same language to the Senate and House of Representatives: It says, it is necessary for the good of society that you also should revert at short periods to the mass of the people, because to you are consigned the most important duties of Government, and because you hold the purse-strings of the nation. To the Judiciary: What is the language applied to them? The judges are not appointed for two, four, or any given number of years; but they hold their appointments for life, unless they misbehave themselves. Why? For this reason: They are not the depositaries of the high prerogatives of Government. They neither appoint to office, nor hold the purse-strings of the country, nor legislate for it. They depend entirely upon their talents, which is all they have to recommend them. They cannot, therefore, be disposed to pervert their power to improper purposes. What are their duties? To expound and apply the laws. To do this with fidelity and skill, requires a length of time. The requisite knowledge is not to be procured in a day. These are the plain and strong reasons which must strike every mind, for the different tenure by which the judges hold their offices, and they are such as will eternally endure wherever liberty exists. On examination, it will be found that the people, in forming their constitution, meant to make the judges as independent of the Legislature as of the Executive. Because the duties which they have to perform, call upon them to expound not only the laws, but the constitution also; in which is involved the power of checking the Legislature in case it should pass any laws in violation of the constitution. For this reason it was more important that the judges in this country should be placed beyond the control of the Legislature, than in other countries where no such power attaches to them. The constitution says: "The Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Thus it says, "the judges _shall hold_ their offices during good behavior." How can this direction of the constitution be complied with, if the Legislature shall, from session to session, repeal the law under which the office is held, and _remove the office_? He did not conceive that any words, which human ingenuity could devise, could more completely get over the remarks that had been made by the gentleman from Kentucky. But that gentleman says, that this provision of the constitution applies exclusively to the President. He considers it as made to supersede the powers of the President to remove the judges. But could this have been the contemplation of the framers of the constitution, when even the right of the President to remove officers at pleasure, was a matter of great doubt, and had divided in opinion our most enlightened citizens. Not that he stated this circumstance because he had doubts. He thought the President ought to have the right; but it did not emanate from the constitution; was not expressly found in the constitution, but sprang from Legislative construction. Besides, if Congress have the right to repeal the whole of the law, they must possess the right to repeal a section of it. If so, they may repeal the law so far as it applies to a particular district, and thus get rid of an obnoxious judge. They may remove his office from him. Would it not be absurd still to say, that the removed judge held his office during good behavior? The constitution says: "The judges shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Why this provision? Why guard against the power to deprive the judges of their pay in a diminution of it, and not provide against what was more important, their existence? Still, if the gentlemen would not agree with him as to the unconstitutionality of the measure proposed, he would ask, was it expedient? Were there not great doubts existing throughout the United States? Ought not each gentleman to say, though I may have no doubts or hesitancy, are not a large portion of our citizens of opinion that it would violate the constitution? If this diversity of sentiment exists, ought not the evils under the judiciary law to be very great before we touch it? Ought we not to aim at harmonizing, instead of dividing our citizens? Was not the constitution a sacred instrument; an instrument ever to be approached with reverence; an instrument which ought not lightly to be drawn from its hallowed retreat, and subjected to the flux and reflux of passion? But where is the evil complained of? This system was established only last session; scarcely had it been yet originated; scarcely had we tried it on its very threshold; where then the necessity of being so pointed, as to destroy a system scarcely formed three days ago? Does not this manifest precipitation? Will it not manifest more magnanimity, more rationality, to abide by it until we try it; instead of taking up a pen and dashing it out of existence? Mr. MORRIS, of New York.--Mr. President, I am so very unfortunate, that the arguments in favor of the motion have confirmed my opinion that the law to which it refers ought not to be repealed. The honorable mover has rested his proposition on two grounds: 1st. That the judiciary law passed last session is unnecessary; and, 2dly. That we have a right to repeal it, and ought to exercise that right. Gentlemen say, recur to the ancient system. What is the ancient system? Six judges of the Supreme Court to ride the circuit of America twice a year, and sit twice a year at the seat of Government. Without inquiring into the accuracy of a statement made by the gentleman respecting the courts of England, in which, I apprehend, he will find himself deceived, let me ask what would be the effects of the old system here? Cast an eye over the extent of our country, and a moment's consideration will show that the First Magistrate, in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy. Can it be possible that men advanced in years, (for such alone can have the maturity of judgment fitting for the office;) that men educated in the closet--men who, from their habits of life, must have more strength of mind than of body; is it, I say, possible that such men can be running from one end of the continent to the other? Or, if they could, can they find time to hear and decide causes? I have been told by men of eminence on the bench, that they could not hold their offices under the old arrangement. What is the present system? You have added to the old judges seven district and sixteen circuit judges. What will be the effect of the desired repeal? Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? And what will be the result of this? It will be, that the check established by the constitution, wished for by the people, and necessary in every contemplation of common sense, is destroyed. It had been said, and truly, too, that Governments are made to provide against the follies and vices of men. For to suppose that Governments rest upon reason is a pitiful solecism. If mankind were reasonable, they would want no Government. Hence, checks are required in the distribution of the power among those who are to exercise it for the benefit of the people. Did the people of America vest all power in the Legislature? No; they had vested in the judges a check intended to be efficient--a check of the first necessity, to prevent an invasion of the constitution by unconstitutional laws--a check which might prevent any faction from intimidating or annihilating the tribunals themselves. On this ground, said Mr. MORRIS, I stand to arrest the victory meditated over the constitution of my country; a victory meditated by those who wish to prostrate that constitution for the furtherance of their own ambitious views. Not of him who had recommended this measure, nor of those who now urge it; for, on his uprightness and their uprightness, I have the fullest reliance; but of those in the background who have further and higher objects. These troops that protect the outworks are to be first dismissed. Those posts which present the strongest barriers are first to be taken, and then the constitution becomes an easy prey. Let us then, secondly, consider whether we have constitutionally a power to repeal this law. [Here Mr. MORRIS quoted the third article and first section of the constitution.] I have heard a verbal criticism about the words _shall_ and _may_, which appeared the more unnecessary to me, as the same word, _shall_, is applied to both members of the section. For it says: "the judicial power, &c. _shall_ be vested in one Supreme Court and such inferior courts as the Congress _may_, from time to time, ordain and establish." The Legislature, therefore, had, without doubt, the right of determining, in the first instance, what inferior courts should be established; but when established, the words are imperative, a part of the judicial power shall vest in them. And "the judges shall hold their offices during good behavior." They shall receive a compensation which shall not be diminished during their continuance in office. Therefore, whether the remarks be applied to the tenure of office, or the quantum of compensation, the constitution is equally imperative. After this exposition, gentlemen are welcome to any advantage to be derived from the criticism on _shall_ and _may_. MONDAY, January 11. _Apportionment Bill._ The Apportionment bill, as received from the House of Representatives, was taken up. This bill fixes the ratio of representation at one member for every 33,000 persons in each State. Mr. WELLS moved to strike out 33,000, his object being to introduce 30,000, for which he assigned his reasons at some length. On this motion a debate of some length ensued, in which the provisions of the bill as they stood were supported by Messrs. JACKSON, MASON, WRIGHT, and COCKE; and opposed by Messrs. WELLS and HILLHOUSE. Mr. WHITE, of Delaware.--Believing as I do, sir, that the minds of gentlemen on this floor are thoroughly made up as to the present subject, and that any observations now to be offered will not influence a single vote, but merely occupy the time of the Senate to no useful purpose, I shall ask your indulgence but a few moments. I cannot, sir, sit quietly and see this bill reported by your committee, meditating as it certainly does a manifest injury to the State I have the honor in part to represent, pass into a law, without doing more than oppose to it a silent negative; without holding up my voice and protesting most solemnly against the extreme injustice of the measure. If, sir, this bill passes in its present shape, there will be left in the State of Delaware twenty-eight thousand eight hundred and eleven people unrepresented in the popular branch of their Legislature. Gentlemen may say, that this is only a fraction, and that in a general apportionment of representation, fractional numbers are unavoidable. Sir, I acknowledge it is only a fraction, but it is a fraction that includes one-half the population of that State, and amounts, even upon the present contemplated plan, to within four thousand of the number sufficient to gain another Representative. Sir, twenty-eight or thirty thousand would, to one of the large States, be an inconsiderable fraction. Apportion that number, for instance, among the twenty-one Representatives from Virginia, and you give to each member but a fraction of about thirteen hundred; whereas from Delaware, there will be but one representative, and over and above his legal number a fraction of near twenty-nine thousand people unrepresented. Is this fair, sir? Is this equitable? I ask, gentlemen, is it not unfriendly and wrongful? And can it be possible, sir, that the transcendent omnipotence of a majority have fated, if I may use the expression, this injustice upon a sister State? Suppose, sir, Delaware to have but one Representative and Virginia twenty, a fraction of five thousand to the former is equal to a redundant number of one hundred thousand to the latter; or take, sir, the present case, and you will find that the fraction of twenty-nine thousand in the State of Delaware, apportioned upon the representation, is at least equal to a redundant number in the State of Virginia of three hundred thousand. If, sir, the divisor is fixed at thirty thousand, Delaware will have two Representatives; her weight, then, in the other House, will, in relation to Virginia, be as one to twelve, but if she is compelled to submit to the divisor of thirty-three thousand, you allow her but one Representative; you deny her nearly one-half her rightful influence, and place her on the floor of the House of Representatives in a relative situation toward Virginia, as one to twenty-one. Sir, an additional Representative to any of the larger States is not of the same consequence as another would be to Delaware. To Virginia, for instance, one is but the twentieth part of her force, to Delaware it would be one-half her force. Gentlemen may say that Delaware is the smallest State; but let it be remembered, sir, that her rights are equally sacred with those of the largest States; and although her citizens are not so numerous, yet, sir, their State sovereignty and other constitutional rights are quite as dear and valuable to them, as the blessing can be to any other people; and, let me add, sir, she is among the oldest States; her history travels back through the bloody scenes of your Revolution; she dates her era at your Declaration of Independence, and I am proud to say, and can do so without detracting from her neighbors, in proportion to her population, her resources, and extent, during the severe contest for American liberty, she contributed, in blood and treasure, as freely to its support and permanent establishment, as any State in the Union. Sir, the doctrine urged by some gentlemen that the divisor of thirty thousand will increase the House of Representatives to a body too large and unwieldy for the convenient and ordinary purposes of business, seems to me totally without foundation. The observation and experience of every man must be sufficient at once to satisfy him that this cannot be the consequence; we have before our eyes, sir, examples that prove directly the reverse. This divisor will give to your House of Representatives but one hundred and fifty-seven members; the State of Virginia has in the popular branch of her Legislature one hundred and eighty members, and we have not been told that it is too numerous. The British House of Commons, before the union with Ireland, consisted of about five hundred and fifty members, and we heard no complaint of the numbers; on the contrary, sir, the nation wished a fuller representation; and it is from that House, too, sir, that, according to this logic, must be so extremely riotous and disorderly, we have drawn most of the rules that govern the proceedings of this honorable body. Again, sir, the nature and spirit of your Government requires a full representation in the Legislature. It is a Government that must depend alone for its support upon the affections of the people; and the best security for their affections is to extend to them, upon as large a scale as comports with the public safety, the freedom of choice, and right of representation. In so extensive a country as this, many parts of which are thinly inhabited, and the election districts consequently including vast tracts of territory, it must often happen that the electors are entirely unacquainted with the person for whom they vote; but if you increase the representation, you reduce the size of the election districts; you bring the candidate within the very neighborhood of the electors; they see him, they know him; they are better enabled to estimate truly his character, and judge of his capacity and disposition to serve them. This, sir, will secure in a great degree, the constituent from imposition, and attach to the Representative a higher and more immediate responsibility; it will inspire the people with confidence in your Government, and induce them more cheerfully to acquiesce in your laws. But, above all, sir, the divisor of thirty thousand leaves throughout the United States a less aggregate of unrepresented fractions than any divisor you can take; less, permit me to say, sir, by one hundred and sixteen thousand, than the one contemplated in the bill; and I am sure gentlemen on all sides of the House wish the country as fairly represented as possible. To my mind this is a most conclusive argument in favor of the divisor of thirty thousand. The question was now taken on the motion to strike out 33,000, and lost--ayes 11, noes 15. Mr. MORRIS then moved, and Mr. TRACY seconded the motion to add, after "one representative for every 33,000," the words "and one representative for every fractional number of 27,000 persons." The number 27,000 was used to avoid a violation of the constitution, which prohibits the allotting to each State more representatives than one for every 30,000. Thus, in the case of Delaware, the ratio being 33,000, Delaware would be entitled to one member for 33,000, and one for the fraction of 27,000: both which numbers would amount to 60,000; which last number entitled a State to two members without violating the constitution. This motion was opposed by Messrs. WRIGHT and ANDERSON, and was lost--ayes 10, noes 15. On the question to agree to the final passage of this bill, it was determined in the affirmative--yeas 23, nays 5, as follows: YEAS.--Messrs. Anderson, Baldwin, Breckenridge, Brown, Chipman, Cocke, Colhoun, Dayton, Ellery, T. Foster, Dwight Foster, Franklin, Howard, Jackson, Logan, S. T. Mason, J. Mason, Morris, Nicholas, Sheafe, Stone, Sumter, and Wright. NAYS.--Messrs. Hillhouse, Olcott, Tracy, Wells, and White. The bill was then read a third time, and passed. TUESDAY, January 12 _Judiciary System._ The Senate resumed the consideration of the motion made on the 6th instant, "That the act of Congress passed on the 13th day of February, 1801, entitled 'An act to provide for the more convenient organization of the Courts of the United States,' ought to be repealed." Mr. JACKSON, of Georgia.--I rise with an impression of awe on the present question; for we must tread on constitutional ground, which should not be lightly touched on, nor too hastily decided. Every step we take ought to be well examined, and our minds convinced before we give that vote which cannot be recalled, and which will fix a principle on Legislative construction, which, perhaps, will prevail as long as we remain a nation. In the early stage of this discussion, I had almost determined to say nothing, and am at present determined not to say much; but a justification of the vote I shall give, has impelled me to offer my reasons for it to the State I represent; and I have made up my mind, decidedly, to vote for the resolution before you, if I cannot be otherwise convinced. We have been asked, if we are afraid of having an army of judges? For myself, I am more afraid of an army of judges, under the patronage of the President, than of an army of soldiers. The former can do us more harm. They may deprive us of our liberties, if attached to the Executive, from their decisions; and from the tenure of office contended for, we cannot remove them; while the soldier, however he may act, is enlisted, or if not enlisted, only subsisted for two years; whilst the judge is enlisted for life, for his salary cannot be taken from him. [See 12th division, 8th Section, 1st Art. Constitution.] Sir, it is said these evils will not happen. But what security have we for the truth of the declaration? Have we not seen sedition laws? Have we not heard judges crying out through the land sedition! and asking those whose duty it was to inquire, is there no sedition here? It is true, the sedition law had expired with the last Administration, and he trusted it would not exist, or at least be acted on, under the virtuous Jefferson. But hereafter, if it should exist, your judges, under the cry of sedition and political heresy, may place half your citizens in irons. I thank God, that no such law now exists, or is likely to exist. I thank God, that we are not now under the influence of an intolerant clergy, as is evident from their abuse of the President; and that we are not under dread of the patronage of judges, is manifest, from their attack on the Secretary of State. And I trust, that we shall long keep this patronage off, by not sanctioning the religious persecution of the clergy on the one hand, nor the political violence of the judges on the other. But, upon the principles of gentlemen, the law which creates a judge cannot be touched. The moment it is passed, it exists to the end of time. What is the implication of this doctrine? To alter or amend what may greatly require alteration or amendment, it is necessary to return to the creator, and to inquire what this creator is. My principle is, that the creator is the people themselves; that very people of the United States whom the gentleman from New York had declared ourselves to be the guardians of, to save the people themselves from their greatest enemies; and to save whom from destroying themselves he had invoked this House. Good God! is it possible that I have heard such a sentiment in this body? Rather should I have expected to have heard it sounded from the despots of Turkey, or the deserts of Siberia, than to have heard it uttered by an enlightened legislator of a free country, and on this floor. I am clearly, therefore, of opinion, that if the power to alter the Judiciary system vests not here, it vests nowhere. It follows, from the ideas of gentlemen, that we must submit to all the evils of the present system, though it should exhibit all the horrors of the Inquisition. But, said Mr. J., gentlemen say the United States embrace a vast extent of territory, from fifteen to seventeen thousand miles in length. What is the inevitable deduction to be drawn from this fact? Why, that a system which is to apply to this extent of country, embracing different laws and different habits, will require frequent alterations: whereas, if we are tied down to a system of inferior tribunals once formed, we cannot even touch the plan of the Judicial system of the little District of Columbia. Nor can we touch the inferior jurisdictions in the North-western Territory, nor in the Mississippi Territory, in both of which the systems were acknowledged to be adapted only to present circumstances, and in the last of which the rights of Georgia were implicated. It follows, that whatever these rights may be, the system is sacred; and, as to the Mississippi Territory, if grounded on this doctrine, notwithstanding the claim of Georgia, her jurisdiction is totally lost. To revert to the sedition law. If the doctrine supported now were true, then, had the sedition law been incorporated as a system by itself, an inferior tribunal, and officers been attached to it, would it have been perpetually tacked to the constitution? That law under which so many of our citizens have been imprisoned for writings and speakings; and one, among others, for wishing that the wadding of a gun had been lodged in a certain Presidential part. The gentleman had dwelt on the inconveniences and evils of the old system, and had particularly condemned that part of it, which, as he termed it, had converted the judges into post-boys. But I will appeal to the gentleman, if in England, where so much more business is done, there are more than twelve judges, and whether those judges do not ride the circuit? And why shall our judges not ride the circuits? Shall we have six judges sitting here to decide cases which require a knowledge of the laws, the morals, the habits, the state of the property of the several States? Would not this knowledge be much better obtained by their riding the circuits, and in the States themselves, making themselves acquainted with whatever relates to them, and the cases of appeals to come before them? It has been remarked by a celebrated writer on the English Constitution, that one of the greatest political evils that could befall a people, was the existence of large judiciary bodies. To illustrate his ideas, he had instanced the Parliaments of France. If the spirit which last session gave existence to sixteen new judges continued, who could say by what number they would be limited? They might indeed soon become, what they had been likened to, an army of judges. I do not wish to be severe in my remarks on the conduct of the late Administration. I admire the private character of Mr. Adams. But I do believe the succession of his political acts tended ultimately to accumulate in, and attach all powers to, a particular person or favorite family. If I wished to bestow on Mr. Jefferson this mass of patronage, which I contend this horde of officers bestows, I should be in favor of the bill that it is now moved to repeal; but, as a political person, I am no more for Thomas Jefferson than for John Adams. When he acts, according to my opinion, right, I will support him; when wrong, oppose him; and I trust a majority on this floor will act in the same way. Mr. TRACY, of Connecticut.--Feeble as I am, I have thought it my duty to offer my sentiments on this subject. Owing to severity of indisposition, I have not been in my place, nor have I heard any of the discussion. This circumstance will be my apology, if, in the remarks I shall make, repetitions shall occur on the one hand, and apparent inattention to arguments on the other. Having been a member of this Government during several years, and being impressed with the difficulties attending the formation of a judiciary system, I have thought proper to give a concise history of Legislative proceedings on this important subject. Permit me to say, sir, that the first institution of such a system must be an experiment. It is impossible to ascertain, until tried, the effects of a system co-extensive with the vast territory of the United States, and which ought to be adapted to the different laws and habits of the different States. Soon after the first law was enacted, as early as the year 1793, and I believe sooner, complaints were made of the system of circuit courts. The Union then being divided into three circuits, and two of the six judges were obliged to attend each court, if one judge failed, all the business of course was continued to the next term. Judges complained of the distance they had to travel, and suitors and lawyers complained of delays. In 1793, if my memory is correct, the law passed allowing one judge to attend with the district judge in each district, with some other modifications not important in the present view of the subject. If, by reason of distance, badness of roads, sickness, or any other accident, this one judge failed of attendance, or if he and the district judge differed on any point, a delay was occasioned. If the same judge attended the same circuit at the next term, another delay, and so on, till experience taught us, that some alteration in the system was requisite. It will be recollected, that the judges had to travel over this extensive country twice in each year, and to encounter the extremes of both heat and cold. Of this they complained; but this was not all; the business was not done. Although this subject had been recommended before, and committees had contemplated a revision and alteration of the system, I do not remember that a bill had ever been presented to either House of Congress until 1799. In that session, a bill was reported similar in its features to the act which passed last session. It might have been acted upon in the House of Representatives; of this, however, I am not confident; but I recollect it was printed, and the members of both Houses had it before them; and at the last session, with some alterations and amendments, it was enacted into a law. I believe all parties wished for a revision and amendment of the system, in respect to circuit courts; the difference of opinion was principally this: some supposed an increase of the Judges of the Supreme Court to such a number as would render the duties of the circuit practicable for them, and provide for the completion of business, would be the best amendment; the others thought the law, as it passed, was preferable. I acknowledge, that in deliberating upon this subject, we always assumed the principle, that the establishment of courts was important to protect the rights of the people; we did not fear an army of judges, as has been hinted by the gentleman last up, (Mr. JACKSON.) In this opinion we might be mistaken, but we were honest in our professions. Although some believed, that more of the business of the United States might be confided to the State courts; yet it is not within my recollection, that the question was considered, in any measure; a party question. I am confident, that at the session of 1799, and for a long time before that, the friends of this law, which eventually passed last winter, could not, nor did not, contemplate any change of administration. A revision of the system was long a subject of deliberation; we believed an increase of circuit judges, to the number requisite to perform the duties, would be an inconvenient increase of the Supreme Court; and though it was desirable for the Judges of the Supreme Court to see the people and be seen of them, yet the preference was given to the system now proposed to be repealed. We supposed it would be an evil to increase the number of Judges of the Supreme Court to thirteen, fifteen, or seventeen. A court which is to act together, should not be numerous; on this subject, all men have agreed; here may be danger of an "army of judges," as the gentleman says; for although in Great Britain the twelve judges are sometimes called to give an opinion, yet no man will feel equal confidence in a tribunal of judges for the business of a court, consisting of many as of few; from three to five, the good sense and experience of all nations, has declared to be about the proper number; and we thought it conducive to the general good, to establish tribunals in such manner as to carry justice to the door of every man. Is this system so very vicious, that it deserves nothing but abhorrence and destruction? It costs us a little more than thirty thousand dollars, and by it the number of circuit judges is increased to sixteen; and by it likewise is contemplated reducing the number of supreme judges to five, when it can constitutionally be done. Is the expense an object, when by that expense, we extend the jurisdiction of a court over this vastly extensive, growing country, and carry law and protection to every man? This country is in a singular condition; a great tract of unsettled lands is peopling with rapidity, and numerous emigrations increase our population far beyond its natural increase; is it not of importance that courts should be located among them, early, to correct the restless spirit which is frequent in new and scattered settlements? And are not the emigrations composed of such as require the prompt assistance of the law, to preserve among them regularity? Punishment, to us, and to all good men, should be a strange work; but to prevent crimes, is the work of a God. I speak to gentlemen, who have many of them graced the judge's bench, and adorned the professional robe they have worn, and am therefore not obliged to be particular that I may be understood; a word to the wise will be sufficient. A judiciary, in a national point of view, is absolutely necessary, and an extension of it to every national purpose, is equally necessary. To depend upon State courts, not under obligations, nor amenable to you, besides having as much business allotted to them by the respective States as they can accomplish, and depending, upon them, and not on us, for existence--will require only to be mentioned, to be exploded. Locating your judges in various parts of the country, by them promulgating the national laws, which it is well known has been a subject of great difficulty, and giving them daily opportunity of mixing with people, not well disposed to order and law; may prevent disorders and insurrections, and save millions of expense, which pecuniary saving will be the least of the important events arising from such a system. But there is another objection to the repeal of the judiciary law, which in my mind is conclusive: I mean the letter and spirit of the constitution. In the formation of every Government, in which the people have a share in its administration, some established and indisputable principles must be adopted. In our Government, the formation of a Legislative, Executive, and Judiciary power, is one of the incontrovertible principles; and that each should be independent of the other, so far as human frailty will permit, is equally incontrovertible. Will it be expected, that I should quote Sidney, De Lolme, Montesquieu, and a host of elementary writers, to prove this assertion? There is, probably, no conflict of opinion upon this subject. When we look into our constitution of Government, we shall find, in every part of it, a close and undeviating attention to this principle. Our particular form is singular in its requirements; that full force and operation be given to this all-important principle. Our powers are limited, many acts of sovereignty are prohibited to the National Government, and retained by the States; and many restraints are imposed upon State sovereignty. If either, by accident or design, should exceed its powers, there is the utmost necessity that some timely checks, equal to every exigency, should be interposed. The Judiciary is established by the constitution for that valuable purpose. In the British Government, the Legislature is omnipotent to every legislative effect, and is a perpetual convention for almost every constitutional purpose. Hence it is easy to discern the different parts which must be assigned to the Judiciary in the two kinds of government. In England, the Executive has the most extensive powers; the sword or the military force; the right of making war, and in effect the command of all the wealth of the nation, with an unqualified veto to every legislative act. It is, therefore, rational for that nation to preserve their judiciary completely independent of their Sovereign. In the United States, the caution must be applied to the existing danger; the Judiciary are to be a check on the Executive, but most emphatically to the Legislature of the Union, and those of the several States. What security is there to an individual, if the Legislature of the Union, or any particular State, should pass a law, making any of his transactions criminal which took place anterior to the date of the law? None in the world, but by an appeal to the Judiciary of the United States, where he will obtain a decision that the law itself is unconstitutional and void, or by a resort to revolutionary principles, and exciting a civil war. With a view to those principles, and knowing that the framers of our constitution were fully possessed of them, let us examine the instrument itself. Article third, section first: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Are there words in the English language more explicit? Is there any condition annexed to the judge's tenure of office, other than good behavior? Of whom shall your judges be independent? We are led to an erroneous decision on this, as well as many other governmental subjects, by constantly recurring to Great Britain. That their courts should be independent of their Sovereign, is an important object; he is the fountain of honor and power, and can do no wrong; our President, at least for several years past, has been considered as the fountain of dishonor and weakness, and if there was any maxim upon the subject, it was that he could do no right. Of course the great object of the independence of the Judiciary must here have reference not only to our Executive, but our Legislature. The Legislature with us is the fountain of power. No person will say that the Judges of the Supreme Court can be removed, unless by impeachment and conviction of misbehavior; but the judges of the inferior courts, as soon as ordained and established, are placed upon precisely the same grounds of independence with the Judges of the Supreme Court. Congress may take their own time to ordain and establish, but the instant that is done, all the rights of independence attach to them. If this reasoning is correct, can you repeal a law establishing an inferior court, under the constitution? Will it be said, that although you cannot remove the judge from office, yet you can remove his office from him? Is murder prohibited, and may you shut a man up, and deprive him of sustenance, till he dies, and this not be denominated murder? The danger in our Government is, and always will be, that the Legislative body will become restive, and, perhaps, unintentionally break down the barriers of our constitution. It is incidental to man, and a part of our imperfections, to believe that power may be safely lodged in our hands. We have the wealth of the nation at command, and are invested with almost irresistible strength; the Judiciary has neither force nor wealth to protect itself. That we can, with propriety, modify our judiciary system, so that we always leave the Judges independent, is a correct and reasonable position; but if we can, by repealing a law, remove them, they are in the worst state of dependence. WEDNESDAY, January 13. _The Judiciary System._ The Senate resumed the consideration of the motion made on the 6th inst. that the act of Congress passed on the 13th day of February, 1801, entitled "An act to provide for the more convenient organization of the Courts of the United States," ought to be repealed. Mr. MASON, of Virginia.--I feel some degree of embarrassment in offering my sentiments on a subject so fully and so ably discussed. I believe that the ground taken by my friend from Kentucky has not been shaken by any arguments urged in opposition to the resolution on the table. Yet as some observations have been made, calculated to excite sensibility, not here, but abroad; as they appear to have been made with a view to that end; and as an alarm has been attempted to be excited on constitutional ground, I think the observations ought not to go unnoticed. I agree with gentlemen, that it is important, in a well-regulated government, that the judicial department should be independent. But I have never been among those who have carried this idea to the extent which seems at this day to be fashionable. Though of opinion that each department ought to discharge its proper duties free from the fear of the others, yet I have never believed that they ought to be independent of the nation itself. Much less have I believed it proper, or that our constitution authorizes our courts of justice to control the other departments of the Government. All the departments of a popular government must depend, in some degree, on popular opinion. None can exist without the affections of the people, and if either be placed in such a situation as to be independent of the nation, it will soon lose that affection which is essential to its durable existence. Without, however, going into an inquiry of what kind of organization is most fit for our tribunals; without inquiring into the fitness of making the judges independent for life, I am willing to enter into a consideration, not of what ought to be, but of what is. Whatever opinion I may individually entertain of the provisions of the constitution relative to the Judiciary, sitting here under that constitution, I am bound to observe it as the charter under which we are assembled. When I view the provisions of the constitution on this subject, I observe a clear distinction between the Supreme Court and other courts. I am sensible that when we come to make verbal criticisms, any gentleman of a sportive imagination may amuse our fancies by a play upon words. But this is not the way to get rid of a genuine construction of the constitution. With regard to the institution of the Supreme Court, the words are imperative; while, with regard to inferior tribunals, they are discretionary. The first shall, the last may be established. And surely we are to infer from the wise sages that formed that constitution, that nothing was introduced into it in vain. Not only sentences, but words, and even points, elucidate its meaning. When, therefore, the constitution, using this language, says a Supreme Court shall be established, are we not justified in considering it as of constitutional creation? And on the other hand, from the language applied to inferior courts, are we not justified in considering their establishment as dependent upon the Legislature, who may, from time to time, ordain them, as the public good requires? Can any other meaning be applied to the words "from time to time?" And nothing can be more important on this subject than that the Legislature should have power, from time to time, to create, to annul, or to modify the courts, as the public good may require, not merely to-day, but for ever; and whenever a change of circumstances may suggest the propriety of a different organization. On this point, there is great force in the remark of the gentleman from Georgia, that among the enumerated powers given to Congress, while there is no mention made of the Supreme Court, the power of establishing inferior courts is expressly given. Why this difference, but that the Supreme Court was considered by the framers of the constitution, as established by the constitution, while they considered the inferior courts as dependent upon the will of the Legislature. If the arguments now urged be correct, that a court once established cannot be vacated, we are led into the greatest absurdities. Congress might deem it expedient to establish a court for particular purposes, limited as to its objects or duration. For instance: the United States has taken possession of the Mississippi Territory, rightfully or not, I will not pretend to say. This territory has been heretofore in the hands of various masters, viz: France, England, Spain, and Georgia; and it is now possessed by the United States. All these Governments, except the United States, made certain grants of lands in the territory, and certain settlers spread their conflicting patents over the country. These different titles will open a wide field for litigation, which will require able tribunals to decide upon. Suppose, then, Congress should establish special tribunals to continue for three, four, or five years, to settle these claims. Judges would be appointed. They would be the judges of an inferior court. If the construction of the constitution now contended for be established, what would the judges say, when the period for which they were appointed expired? Would they not say, we belong to inferior courts? Would they not laugh at you when you told them their term of office was out? Would they not say, in the language of the gentleman from New York, though the law that creates us is temporary, we are in by the constitution? Have we not heard this doctrine supported in the memorable case of the mandamus, lately before the Supreme Court? Was it not there said that, though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years; that it was right in making the justices, but unconstitutional in limiting their periods of office; that, being a judicial officer, he had a right to hold his office during life--or, what is the same thing--during good behavior, in despite of the law which created him, and, in the very act of creation, limiting his official life to five years. I may notice another case, more likely to happen, to show the absurdity of this construction. Congress have assumed jurisdiction over the Mississippi Territory, and have established a court, composed of three judges, which court is as much an inferior court as the circuit or district courts. Of this jurisdiction Georgia denies the validity. The contest is in a train of settlement. Suppose it shall turn out that the United States are convinced of the injustice of their claim, relinquish it, and restore the territory to Georgia, what becomes of the judges? Their offices, their duties, are gone! Yet they will tell you, we are vested with certain constitutional rights, of which you cannot deprive us. It is true the territory is no longer yours. You have no jurisdiction, we have no power, yet we are judges by the constitution. We hold our offices during good behavior, and we will behave well as long as you will let us. Is not this a strange situation? You have judges in a territory over which you have no jurisdiction; and you have officers which are perfect sinecures, pensioners for life. Such an absurdity I am sure the constitution never meant to justify. It is an absurdity equally repugnant to the letter and genius of the constitution. But it would seem that the argument urged on this occasion, and the general course of our legislation, had been grounded more on the convenience and emoluments of those appointed to office, than on grounds of public utility. First, we appointed six judges of the Supreme Court, divided the United States into three circuits, two judges to ride each circuit, in which, with the district judge, to form a court. The law fixed the duties and the compensation, and gentlemen of the first character were ready to accept the places. The salaries indeed had been thought high; in some parts of the Union they were thought enormous. But a little time passed before they complained of the hardships of their duties; and the law was altered, not so much for the public good as for their personal convenience. Where two judges were required to hold a court, one was now declared sufficient. Thus you continued their full salaries, while you lopped off half their duties. Shortly after you assigned them, under the pension law, inconsiderable duties; and they refused to perform them. Thus, while they showed themselves ready to abate of their duties, they adhered to their salaries. Next came the law of last session, which takes away all their duties. It leaves them simply a court of appeals. And what have they got to do? To try ten suits; for such is the number now on their docket, as appears from a certificate just put into my hands; and the average number on their docket amounts to from eight to ten. Thus, for the trial of the immense number of eight or ten suits, you have six judges, one with a salary of four thousand, and five others with salaries of three thousand five hundred dollars each. I fear, said Mr. M., that if you take away from these judges that which they ought officially to do, they will be induced, from the want of employment, to do that which they ought not to do; they may do harm. They may be induced, perhaps, to set about that work gentlemen seem so fond of. They may, as gentlemen have told us, hold the constitution in one hand, and the law in the other, and say to the departments of Government, so far you shall go and no farther. This independence of the Judiciary, so much desired, will, I fear, sir, if encouraged or tolerated, soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently become so strong as to crush and absorb all the others into their solid mass. We, have been told, that no State in the Union has presumed to touch the Judiciary establishment, except the State of Maryland. I will not answer for others; but, with respect to Virginia, I will answer that she has touched it. Her constitutional provision for the independence of the judges is nearly similar to that of the United States, and yet she has established, modified, and entirely put down particular departments of her system. Notwithstanding the remarks of gentlemen, I am inclined to think these ideas of the extreme independence of the judges, and the limited powers of the Legislature, are not very old, but that they are of modern origin, and have grown up since the last session of Congress. For, in the law passed last session, that very law which it is now proposed to repeal, is to be found a practical exposition in direct hostility with the principle now contended for, which does not betray that sacred regard for the office of a judge, that is, on this occasion, professed: in that very law will be found a clause which abolishes two district courts. The words of the twenty-fourth section say, expressly, "the district courts of Kentucky and Tennessee shall be and hereby are abolished." Will gentlemen tell this House how this express provision came into the act of the last session; and will they say, that though they voted for this law, yet no power exists in the Legislature to abolish a court? It is true, that it has been said that, though you put down two district courts, you promoted the officers, by increasing their salaries and making them judges of the circuit courts; but the fact is, you have abolished their offices; they are judges no longer of the districts of Kentucky and Tennessee; and they are to every purpose, whatever may be their name, in reality circuit judges. Though you have not lessened their salaries, you have deprived them of their offices. However, therefore, gentlemen may calculate as to the benefit or injury done these two judges, the principle is not affected by any result; their offices are gone. It is not enough to say, that though you destroyed their offices, you offered them others with higher salaries. You took away from them, in express terms, their offices, by abolishing the offices. You had stripped them of their offices, you had robbed them of their vested right, and then, to make friends, offered them a compensation; but whether the compensation thus offered for the deprivation they had suffered, was really equivalent to their loss, is a mere matter of calculation, and does not affect the constitutional principle. It is proper, however, to observe, that they were no parties to the proposed compromise, and that indeed they had no choice left them. They were obliged to accept of what you offered them, or have nothing. If they did not agree to become judges of the newly organized circuit courts, they could not remain judges of the district courts, for these courts were absolutely and completely abolished. By the seventh section of the law of the last session, which transforms the district into circuit courts, which melts down the judges and recoins them, it is enacted, that there shall be a circuit court, composed of one new circuit judge and two old district judges, to be called the Sixth Circuit. Have you not then established a new office by the destruction of the old one? Have you not done more? Have you not violated the constitution, by declaring, by law, who shall fill this new office, though the constitution declares, article second, section two, "That the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint all officers which shall be established by law." Where were these guardians of the constitution--these vigilant sentinels of our rights and liberties, when this law passed? Were they asleep on their post? Where was the gentleman from New York, who has, on this debate, made such a noble stand in favor of a violated constitution? Where was the _Ajax Telamon_ of his party, or, to use his own more correct expression, the _faction_ to which he belonged? Where was the hero with his seven-fold shield--not of bull's hide, but of brass--prepared to prevent or to punish this Trojan rape, which he now sees meditated upon the constitution of his country by a wicked _faction_? Where was Hercules, that he did not crush this den of robbers that broke into the sanctuary of the constitution? Was he forgetful of his duty? Were his nerves unstrung? Or was he the very leader of the band that broke down these constitutional ramparts? I shall now, sir, trouble you with a few remarks on the expediency of repealing this law. It has been said, that there is nothing peculiarly disgustful in this law; that there has been no public clamor excited against it; that it was enacted with solemnity, on calm and deliberate reflection; and that time has not yet been given to test it by experience. As no member, who has taken part in debate, was a member of this body when the law passed, I will say something of its history. I am not disposed to excite the sensibility of gentlemen, by any remarks which I shall make, or to call up unpleasant recollections of past scenes. But when I hear it said that this law was passed with calmness, after mature reflection, and that we are now, in a fit of passion, going to undo what was thus wisely done, I think it necessary that the public should have a correct statement. It is true, that under the last Administration, when there existed (what I trust will never, in an equal degree, exist again,) an immoderate thirst for Executive patronage, a proposition was made to establish a new judiciary system; a system worse than the present; as it proposed, according to my recollection, thirty-eight judges instead of sixteen. This law was very near passing. It was, however, rejected in the House of Representatives by a very small majority. But it was circulated as a project of a law among the people. It was illy received. It was thought too rank a thing, and met with general disapprobation throughout the United States, so far as I have been able to learn. After this reception, it was softened down to the plan introduced at the last session. What temper accompanied the progress of the bill in the other House I know not, or, if I did know, would it be proper for me here to say? But with respect to the acts of this body, I am not of opinion they added any dignity to our common course of procedure. The bill was referred to a committee, who, although it was very long, reported it without any amendment. Various amendments were offered, some of which were admitted to be proper. But they were not received. One, indeed, proposed by a member from Connecticut, who was chairman of the committee, and was then hostile to the plan, did pass in the early stages of the bill, but on the third reading it was expunged. All amendments proposed by the minority were uniformly rejected by a steady, inflexible, and undeviating majority. I confess that I saw no passion, but I certainly did see great pertinacity; something like what the gentleman from Connecticut had termed _a holding fast_. No amendments were admitted; when offered, we were told, no; you may get them introduced by a rider or supplementary bill, or in any way you please; but down this bill must go; it must be crammed down your throats. This was not the precise phrase, but such was the amount of what was said. I will say that not an argument was urged in favor of the bill, not a word to show the necessity or propriety of the change. Yet we are told that there was great dignity, great solemnity in its progress and passage! But there is something undignified in thus hastily repealing this law! in thus yielding ourselves to the fluctuations of public opinion! So we are told!--But if there be blame, on whom does it fall? Not on us, who respected the public opinion when this law was passed, and who still respect it; but on those who, in defiance of public opinion, passed this law, after that public opinion had been decisively expressed. The revolution in public opinion had taken place before the introduction of this project; the people of the United States had determined to commit their affairs to new agents; already had the confidence of the people been transferred from their then rulers into other hands. After this exposition of the national will, and this new deposit of the national confidence, the gentlemen should have left untouched this important and delicate subject--a subject on which the people could not be reconciled to their views, even in the flood-tide of their power and influence; they should have forborne, till agents, better acquainted with the national will, because more recently constituted its organs, had come into the Government. This would have been more dignified than to seize the critical moment when power was passing from them, to pass such a law as this. If there is error, it is our duty to correct it; and the truth was, no law was ever more execrated by the public. Let it not be said, postpone the repeal till the next session. No--let us restore those gentlemen to private life, who have accepted appointments under this law. This will be doing them greater justice, than by keeping them in office another year, till the professional business, which once attached to them, is gone into other channels. Mr. STONE, of North Carolina.--Before entering into an examination of the expediency of the repeal, it may be proper to remark, that gentlemen who have spoken against the repeal, whose talents and eloquence I highly admire, have not correctly stated the question. The true question is, not whether we shall deprive the people of the United States of all their courts of justice, but whether we shall restore to them their former courts. Shall we, or shall we not, continue an experiment made, or attempted to be made, I will not say improperly, because my respect for this body and for my country, forbid the imputation; but I will say that the length of time we remained without this system, and the repeated ineffectual attempts made to establish it, present strong reasons for inferring that there are not those great apparent reasons in favor of it, that have been stated. A system somewhat similar to the present had been rejected by the Legislature, because they preferred the former system. Another evidence to the same purport is, that during the last session, when the subject was again revived, and the present plan adopted, an amendment was offered, to amend by extending and enlarging the former establishment. [Here Mr. S. read the amendment proposed, which augmented the number of judges of the Supreme Court, and assigned their circuits.] This amendment was rejected, and from the vote entered on the journal of that day, it appears that the difference of votes against the amendment was formed of those gentlemen who were nominated to appointments made vacant by the promotions under the new law. I do not state this circumstance as an evidence that these gentlemen were influenced by improper motives; but to show that the manner in which the new system was formed, was not calculated to establish, in the public mind, a decided preference of it over the old system. Having made these remarks on the great deliberation said to have been manifested in the adoption of this plan, I hope I may be permitted to express my perfect coincidence with the gentleman from Connecticut, that courts are necessary for the administration of justice, and that, without them, our laws would be a dead letter. But it appears to me essential to the due administration of justice, that those who preside in our courts should be well acquainted with the laws which are to guide their decisions. And, I apprehend, that no way is so much calculated to impart this knowledge, as a practical acquaintance with them, by attending courts in the several States, and hearing gentlemen who are particularly acquainted with them, explain and discuss them. It is, therefore, absolutely necessary, in my mind, that the Judges of the Supreme Court, whose power controls all the other tribunals, and on whose decisions rest the property, the reputation, the liberty, and the lives of our citizens, should, by riding the circuit, render themselves practically acquainted with their duties. It is well known, that the knowledge of the laws of a State, is not to be suddenly acquired, and it is reasonable to conclude, that that knowledge is most correctly possessed by men whose whole lives have been devoted to the acquisition. It is also perfectly well known, that the knowledge of the modes and principles of practice in the different States, or of any State, is most effectually to be acquired in courts, where gentlemen of skill and experience apply those principles to use upon existing points. This defect, then, of the present plan, is, in my opinion, so radical, that, of itself, it would decide, with me, the question of expediency. To what source, then, shall we resort for a knowledge of what constitutes this thing, called misbehavior in office? The constitution, surely, did not intend that a circumstance so important as the tenure by which the judges hold their offices, should be incapable of being ascertained. Their misbehavior, certainly, is not an impeachable offence; still it is the ground upon which the judges are to be removed from office. The process of impeachment, therefore, cannot be the only one by which the judges may be removed from office, under, and according to the constitution. I take it, therefore, to be a thing undeniable, that there resides somewhere in the Government, a power to declare what shall amount to misbehavior in office, by the judges, and to remove them from office for the same, without impeachment. The constitution does not prohibit their removal by the Legislature, who have the power to make all laws necessary and proper for carrying into execution the powers vested by the constitution in the Government of the United States. But, says the gentleman from New York, the judges are officers instituted by the constitution, to save the people from their greatest enemies, themselves; and therefore, they should be entirely independent of, and beyond the control of the Legislature. If such was the design of the wise men who framed and adopted the constitution, can it be presumed they would have provided so ineffectual a barrier, as these judges can readily be shown to be? It is allowed, on all hands, the Legislature may modify the courts; they may add judges, they may fix the times at which the courts shall sit, &c. Suppose the Legislature to have interests distinct from the people, and the judges to stand in the way of executing any favorite measure--can any thing be more easy than for the Legislature to declare that the courts, instead of being held semi-annually, or oftener, shall be held only once in six, eight, ten, or twenty years? Or, in order to free themselves from the opposition of the present Supreme Court, to declare, that court shall hereafter be held by thirteen judges. An understanding between the President and the Senate, would make it practicable to fill the new offices with men of different views and opinions from those now in office. And what, in either case, would become of this boasted protection of the people against themselves? I cannot conceive the constitution intended so feeble a barrier; a barrier so easily evaded. It is not alone the sixteen rank and file, which the gentleman from New York has so ludicrously depicted, that I apprehend immediate danger from, but it is the principle which converts the office of judge into a hospital of incurables, and declares, that an expiring faction, after having lost the public confidence, may add to those sixteen, until they become sixteen hundred or sixteen thousand; and that the restored good sense of the Legislature, the whole Government and constitution, retains no means of casting them off, but by destroying itself, and resorting to revolutionary principles. The Legislature may repeal unnecessary taxes, may disband useless and expensive armies, may declare they will no longer be bound by the stipulations of an oppressive treaty; and if war should follow, the constitution is still safe. But if the construction which gentlemen contend for, be correct, a band of drones, to any amount in number, under the denomination of judges, may prey upon the substance of the people, and the Government retains not the power to remove them but by destroying the constitution itself. THURSDAY, January 14. _Judiciary System._ The Senate resumed the consideration of the motion made on the 6th instant, that the act of Congress passed on the 13th day of February, 1801, entitled "An act to provide for the more convenient organization of the Courts of the United States," ought to be repealed. Mr. OLCOTT, of New Hampshire, said this subject was of the most important kind, and though many able arguments had been already offered, he could not pass it over with a silent vote. It has been suggested that the act now proposed to be repealed, came in on the influx of passion, and that the influx of reason should sweep it away. He did not know that this was the case. Some gentlemen contend that it was adopted with great deliberation. He thought the reasons for a repeal of this law insufficient. It is not said, that if the constitution vests a right to office in the judges, that we can affect them. He thought the constitution did vest the right, and he held it to be sacred. The provisions of the constitution appeared to him so plain, that they scarcely admitted of illustration. He who undertakes to explain the text, must find more explicit terms than those contained in it. He could not find any. After dwelling upon the different provisions of the constitution, Mr. O. went upon the question of expediency, at some length, and concluded that a repeal was as inexpedient as unconstitutional. Mr. COCKE, of Tennessee, followed Mr. OLCOTT. He said he was sorry gentlemen attempted to make quack doctors of them, by saying we may give a wound, but cannot heal it. He wished the Senate to inquire whether the law now proposed to be repealed was constitutional or not. If it was not, we should act like honest men, acknowledge that we have violated the constitution, and restore it to its purity by repealing the law. Let us recur to the journals of 1799, and see what was the understanding of these champions of our liberties, and whether they have not since changed. The journals would prove that the judges were to mix with the Legislature, were to be locked up in a closet, and to declare who was to be our Executive Magistrate. [Mr. COCKE here went into an examination of the arguments on the constitutional point.] We have been told that the nation is to look up to these immaculate judges to protect their liberties; to protect the people against themselves. This was novel, and what result did it lead to? He shuddered to think of it. Were there none of these judges ready to plunge their swords in the American heart? He did not think it proper to be alarmed by the terrors held out. He wished to know no man; to take things as they are. But if gentlemen will attack, they must expect a reply. Mr. COCKE then dilated upon the several points of the discussion, and concluded with the expression of the hope that the Legislature would repeal the law, and that they would not give way to the ideas of gentlemen, that the Government was made for a chosen few, for the judges, to whom we are to look up for every thing. Mr. MORRIS.--Mr. President, I had fostered the hope that some gentleman, who thinks with me, would have taken upon himself the task of replying to the observations made yesterday and this morning, in favor of the motion on your table. But since no gentleman has gone so fully into the subject, as it seems to require, I am compelled to request your attention. After these preliminary remarks, I hope I shall be indulged while I consider the subject in reference to the two points which have been taken, the _expediency_ and the _constitutionality_ of the repeal. In considering the _expediency_, I hope I shall be pardoned for asking your attention to some parts of the constitution, which have not yet been dwelt upon, and which tend to elucidate this part of our inquiry. I agree fully with the gentleman, that every section, every sentence, and every word of the constitution, ought to be deliberately weighed and examined; nay, I am content to go along with him, and give its due value and importance to every stop and comma. In the beginning, we find a declaration of the motives which induced the American people to bind themselves by this compact. And in the fore-ground of that declaration, we find these objects specified, "to form a more perfect union, to establish justice, and to ensure domestic tranquillity." But how are these objects effected? The people intended to _establish justice_. What provision have they made to fulfil that intention? After pointing out the courts which should be established, the second section of the third article informs us: "The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects. "In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." Thus then we find that the judicial power shall extend to a great variety of cases, but that the Supreme Court shall have only appellate jurisdiction in all admiralty and maritime causes, in all controversies between the United States and private citizens, between citizens of different States, between citizens of the same State claiming lands under different States, and between a citizen of the United States and foreign states, citizens, or subjects. The honorable gentleman from Kentucky, who made the motion on your table, has told us that the constitution, in its judiciary provisions, contemplated only those cases which could not be tried in the State courts. But he will, I hope, pardon me when I contend that the constitution did not merely contemplate, but did, by express words, reserve to the national tribunals a right to decide, and did secure to the citizens of America, a right to demand their decision, in many cases evidently cognizable in the State courts. And what are these cases? They are those in respect to which it is by the constitution presumed that the State courts would not always make a cool and calm investigation, a fair and just decision. To form, therefore, a more perfect union, and to ensure domestic tranquillity, the constitution has said there shall be courts of the Union to try causes, by the wrongful decision of which the Union might be endangered or domestic tranquillity be disturbed. And what courts? Look again at the cases designated. The Supreme Court has no original jurisdiction. The constitution has said that the judicial powers shall be vested in the supreme and inferior courts. It has declared that the judicial power so vested shall extend to the cases mentioned, and that the Supreme Court shall not have original jurisdiction in those cases. Evidently, therefore, it has declared that they shall (in the first instance) be tried by inferior courts, with appeal to the Supreme Court. This, therefore, amounts to a declaration, that the inferior courts shall exist. Since, without them, the citizen is deprived of those rights for which he stipulated, or rather those rights verbally granted, would be actually withheld; and that great security of our Union, that necessary guard of our tranquillity, be completely paralyzed, if not destroyed. In declaring, then, that these tribunals shall exist, it equally declares that the Congress shall ordain and establish them. I say they shall; this is the evident intention, if not the express words, of the constitution. The convention in framing, the American people in adopting, that compact, did not, could not presume, that the Congress would omit to do what they were thus bound to do. They could not presume, that the Legislature would hesitate one moment, in establishing the organs necessary to carry into effect those wholesome, those important provisions. The honorable member from Virginia has given us a history of the judicial system, and in the course of it has told us, that the Judges of the Supreme Court knew, when they accepted their offices, the duties they had to perform, and the salaries they were to receive. He thence infers, that if again called on to do the same duties, they have no right to complain. Agreed: but that is not the question between us. Admitting that they have made a hard bargain, and that we may hold them to a strict performance, is it wise to exact their compliance to the injury of our constituents? We are urged to go back to the old system; but let us first examine the effects of that system. The Judges of the Supreme Court rode the circuits, and two of them, with the assistance of a district judge, held circuit courts and tried causes. As a Supreme Court, they have in most cases only appellate jurisdiction. In the first instance, therefore, they tried a cause, sitting as an inferior court, and then on appeal tried it over again, as a Supreme Court. Thus, then, the appeal was from the sentence of the judges to the judges themselves. But say, that to avoid this impropriety, you will incapacitate the two judges who sat on the circuit, from sitting in the Supreme Court to review their own decrees. Strike them off; and suppose either the same or a contrary decision to have been made on another circuit, by two of their brethren, in a similar case. For the same reason you strike them off, and then you have no court left. Is this wise? Is it safe? You place yourselves in the situation where your citizens must be deprived of the advantage given to them of a court of appeals, or else run the greatest risk that the decision of the first court will carry with it that of the other. The same honorable member has given us a history of the law passed the last session, which he wishes now to repeal. That history is accurate, at least in one important part of it. I believe that all amendments were rejected, pertinaciously rejected; and I acknowledge that I joined heartily in that rejection. It was for the clearest reason on earth. We all perfectly understood, that to amend the bill was to destroy it; that if ever it got back to the other House, it would perish. Those, therefore, who approved of the general provisions of that bill, were determined to adopt it. We sought the practicable good, and would not, in pursuit of unattainable perfection, sacrifice that good to the pride of opinion. We took the bill, therefore, with its imperfections, convinced that when it was once passed into a law, it might be easily amended. We are now told, that this procedure was improper; nay, that it was indecent. That public opinion had declared itself against us. That a majority (holding different opinions) was already chosen to the other House; and that a similar majority was expected from that in which we sit. Mr. President, are we then to understand that opposition to the majority in the two Houses of Congress, is improper, is indecent? If so, what are we to think of those gentlemen, who, not only with proper and decent, but with laudable motives, (for such is their claim,) so long, so perseveringly, so pertinaciously opposed that voice of the people, which had so repeatedly, and for so many years, declared itself against them, through the organ of their representatives? Was this indecent in them? If not, how could it be improper for us to seize the only moment which was left for the then majority to do what they deemed a necessary act? Let me again refer to those imperious demands of the constitution, which called on us to establish inferior courts. Let me remind gentlemen of their assertion on this floor, that centuries might elapse before any judicial system could be established with general consent. And then let me ask, being thus impressed with the sense of the duty and the difficulty of performing that arduous task, was it not wise to seize the auspicious moment? Among the many stigmas affixed to this law, we have been told that the President, in selecting men to fill the offices which it created, made vacancies and filled them from the floor of this House; and that but for the influence of this circumstance, a majority in favor of it could not have been found. Let us examine this suggestion. It is grounded on a supposition of corrupt influence derived from a hope, founded on two remote and successive contingencies. First, the vacancy might or might not exist; for it depended as well on the acceptance of another, as on the President's grant; and secondly, the President might or might not fill it with a member of this House. Yet, on this vague conjecture, on this unstable ground, it is inferred that men in high confidence violated their duty. It is hard to determine the influence of self-interest on the heart of man. I shall not, therefore, make the attempt. In the present case, it is possible that the imputation may be just, but I hope not, I believe not. At any rate gentlemen will agree with me, that the calculation is uncertain, and the conjecture vague. But let it now, for argument sake, be admitted, saving always the reputation of honorable men, who are not here to defend themselves. Let it, I say, for argument sake be admitted, that the gentlemen alluded to acted under the influence of improper motives. What then? Is a law that has received the varied assent required by the constitution, and is clothed with all the needful formalities, thereby invalidated? Can you impair its force by impeaching the motives of any member who voted for it? Does it follow, that a law is bad because all those who concurred in it cannot give good reasons for their votes? Is it not before us? Must we not judge of it by its intrinsic merit? Is it a fair argument, addressed to our understanding, to say, we must repeal a law, even a good one, if the enacting of it may have been effected in any degree by improper motives? Or is the judgment of this House so feeble, that it may not be trusted? Let us, however, examine the clause objected to on the ground of the constitution. It is said, that by this law the district judges in Tennessee and Kentucky are removed from office, by making them circuit judges. And again, that you have by law appointed two new offices, those of circuit judges, and filled them by law, instead of pursuing the mode of appointment prescribed by the constitution. To prove all this, the gentleman from Virginia did us the favor to read those parts of the law which he condemns, and if I can trust to my memory, it is clear, from what he read, that the law does not remove these district judges, neither does it appoint them to the office of circuit judges. It does indeed put down the district courts; but it is so far from destroying the offices of district judge, that it declares the persons filling those offices shall perform the duty of holding the circuit courts. And so far is it from appointing circuit judges, that it declares the circuit courts shall be held by the district judges. But gentlemen contend, that to discontinue the district courts, was in effect to remove the district judge. This, sir, is so far from being a just inference from the law, that the direct contrary follows as a necessary result; for it is on the principle that these judges continue in office after their courts are discontinued, that the new duty of holding other courts is assigned to them. But, gentlemen say, this doctrine militates with the principles we contend for. Surely not. It must be recollected, sir, that we have repeatedly admitted the right of the Legislature to change, alter, modify, and amend the judiciary system, so as best to promote the interests of the people. We only contend that you shall not exceed or contravene the authority by which you act. But, say gentlemen, you forced this new office on the district judges, and this is in effect a new appointment. I answer, that the question can only arise on the refusal of those judges to act. But is it unconstitutional to assign new duties to officers already existing? I fear that if this construction be adopted, our labors will speedily end; for we shall be so shackled, that we cannot move. What is the practice? Do we not every day call upon particular officers to perform duties not previously assigned to, or required of them? And must the Executive in every such case make a new appointment? But as a further reason to restore, by repealing this law, the old system, an honorable member from North Carolina has told us, the judges of the Supreme Court should attend in the States, to acquire a competent knowledge of local institutions, and for this purpose should continue to ride the circuits. I believe there is great use in sending young men to travel; it tends to enlarge their views and give them more liberal ideas than they might otherwise possess. Nay, if they reside long enough in foreign countries they may become acquainted with the manners of the people and acquire some knowledge of their civil institutions. But I am not quite convinced that riding rapidly from one end of this country to the other is the best way to study law. I am inclined to believe that knowledge may be more conveniently acquired in the closet than in the high road. It is moreover to be presumed that the first Magistrate would, in selecting persons to fill these offices, take the best characters from the different parts of the country, who already possess the needful acquirements. But admitting that the President should not duly exercise, in this respect, his discretionary powers, and admitting that the ideas of the gentleman are correct, how wretched must be our condition! These, our judges, when called on to exercise their functions, would but begin to learn their trade, and that too at a period of life when the intellectual powers with no great facility can acquire new ideas. We must, therefore, have a double set of judges. One set of apprentice-judges to ride circuits and learn; the other set of master-judges, to hold courts and decide controversies. We are told, sir, that the repeal asked for is important, in that it may establish a precedent, for that it is not merely a question on the propriety of disbanding a corps of sixteen rank and file; but that provision may hereafter be made, not for sixteen but for sixteen hundred or sixteen thousand judges, and that it may become necessary to turn them to the right about. Mr. President, I will not, I cannot presume, that any such provision will ever be made, and therefore I cannot conceive any such necessity; I will not suppose, for I cannot suppose, that any party or faction will ever do any thing so wild, so extravagant. But I will ask, how does this strange supposition consist with the doctrine of gentlemen, that public opinion is a sufficient check on the Legislature, and a sufficient safeguard to the people? Put the case to its consequences, and what becomes of the check? Will gentlemen say it is to be found in the force of this wise precedent? Is this to control succeeding rulers in their wild, their mad career? But how? Is the creation of judicial officers the only thing committed to their discretion? Have they not, according to the doctrine contended for, our all at their disposition, with no other check than public opinion, which, according to the supposition, will not prevent them from committing the greatest follies and absurdities? Take then all the gentleman's ideas, and compare them together, it will result that here is an inestimable treasure put into the hands of drunkards, madmen, and fools. But away with all these derogatory suppositions. The Legislature may be trusted. Our Government is a system of salutary checks: one Legislative branch is a check on the other. And should the violence of party spirit bear both of them away, the President, an officer high in honor, high in the public confidence, charged with weighty concerns, responsible to his own reputation and to the world, stands ready to arrest their too impetuous course. This is our system. It makes no mad appeal to every mob in the country. It appeals to the sober sense of men selected from their fellow-citizens for their talents, for their virtue; of men advanced in life, and of mature judgment. It appeals to their understanding, to their integrity, to their honor, to their love of fame, to their sense of shame. If all these checks should prove insufficient, and alas! such is the condition of human nature, that I fear they will not always be sufficient, the constitution has given us one more: it has given us an independent judiciary. We have been told that the Executive authority carries your laws into execution. But let us not be the dupes of sound. The Executive Magistrate commands indeed your fleets and armies; and duties, imposts, excises, and other taxes are collected, and all expenditures are made by officers whom he has appointed. So far indeed he executes your laws. But these, his acts, apply not often to individual concerns. In those cases so important to the peace and happiness of society, the execution of your laws is confided to your judges; and therefore are they rendered independent. Before then that you violate that independence, pause. There are State sovereignties, as well as the sovereignty of the General Government. There are cases, too many cases, in which the interest of one is not considered as the interest of the other. Should these conflict, if the Judiciary be gone, the question is no longer of law, but of force. This is a state of things which no honest and wise man can view without horror. Suppose, in the omnipotence of your Legislative authority, you trench upon the rights of your fellow-citizens, by passing an unconstitutional law. If the Judiciary Department preserve its vigor, it will stop you short. Instead of a resort to arms, there will be a happier appeal to argument. Suppose a case still more impressive. The President is at the head of your armies. Let one of his generals, flushed with victory and proud in command, presume to trample on the rights of your most insignificant citizen: indignant of the wrong, he will demand the protection of your tribunals, and, safe in the shadow of their wings, will laugh his oppressor to scorn. This, sir, leads me to the second object I had proposed. I shall therefore pray your indulgence, while I consider how far this measure is _constitutional_. I have not been able to discover the expediency, but will now, for argument's sake, admit it; and here, I cannot but express my deep regret for the situation of an honorable member from North Carolina. Tied fast, as he is, by his instructions, arguments, however forcible, can never be effectual. I ought, therefore, to wish, for his sake, that his mind may not be convinced by any thing I shall say; for hard indeed would be his condition, to be bound by the contrarient obligations of an order and an oath. I cannot, however, but express my profound respect for the talents of those who gave him his instructions, and who, sitting at a distance, without hearing the arguments, could better understand the subject than their Senator on this floor, after full discussion. The honorable member from Virginia has repeated the distinction before taken between the supreme and the inferior tribunals; he has insisted on the distinction between the words _shall_ and _may_; has inferred from that distinction, that the judges of the inferior courts are subjects of Legislative discretion; and has contended that the word _may_ includes all power respecting the subject to which it is applied, consequently to raise up and to pull down, to create and to destroy. I must entreat your patience, sir, while I go more into this subject than ever I supposed would be necessary. By the articles so often quoted, it is declared, "that the judicial power of the United States _shall_ be vested in one Supreme Court, and in such inferior courts as the Congress _may_ from time to time establish." I beg leave to call your attention to what I have already said of these inferior courts. That the original jurisdiction of various subjects being given exclusively to them, it became the bounden duty of Congress to establish such courts. I will not repeat the argument already used on that subject. But I will ask those who urged the distinction between the Supreme Court and the inferior tribunals, whether a law was not previously necessary before the Supreme Court could be organized. They reply, that the constitution says, there _shall_ be a Supreme Court, and therefore the Congress are commanded to organize it, while the rest is left to their discretion. This, sir, is not the fact. The constitution says, the judicial power shall be vested in one Supreme Court, and in inferior courts. The Legislature can therefore only organize one Supreme Court, but they may establish as many inferior courts as they shall think proper. The designation made of them by the constitution is, such inferior courts as the Congress may from time to time ordain and establish. But why, say gentlemen, fix precisely one Supreme Court, and leave the rest to Legislative discretion? The answer is simple: it results from the nature of things from the existent and probable state of our country. There was no difficulty in deciding that one and only one Supreme Court would be proper or necessary, to which should lie appeals from inferior tribunals. Not so as to these. The United States were advancing in rapid progression. Their population of three millions was soon to become five, then ten, afterwards twenty millions. This was well known, as far as the future can become an object of human comprehension. In this increase of numbers, with a still greater increase of wealth, with the extension of our commerce and the progress of the arts, it was evident that although a great many tribunals would become necessary, it was impossible to determine either on the precise number or the most convenient form. The convention did not pretend to this prescience; but had they possessed it, would it have been proper to have established, then, all the tribunals necessary for all future times? Would it have been wise to have planted courts among the Chickasaws, the Choctaws, the Cherokees, the Tuscaroras, and God knows how many more, because at some future day the regions over which they roam might be cultivated by polished men! Was it not proper, wise and necessary, to leave in the discretion of Congress the number and the kind of courts which they might find it proper to establish for the purpose designated by the constitution? This simple statement of facts--facts of public notoriety--is alone a sufficient comment on, and explanation of, the word on which gentlemen have so much relied. The convention in framing, the people in adopting, this compact say the judicial power shall extend to many cases, the original cognizance whereof shall be by the inferior courts; but it is neither necessary, nor even possible now to determine their number or their form; that essential power, therefore, shall vest in such inferior courts as the Congress may from time to time, in the progression of time, and according to the indication of circumstances, establish; not provide, or determine, but establish. Not a mere temporary provision, but an establishment. If, after this, it had said in general terms, that judges should hold their offices during good behavior, could a doubt have existed on the interpretation of this act, under all its attending circumstances, that the judges of the inferior courts were intended as well as those of the Supreme Court? But did the framers of the constitution stop here? Is there then nothing more? Did they risk on these grammatical niceties the fate of America? Did they rest here the most important branch of our Government? Little important, indeed, as to foreign danger; but infinitely valuable to our domestic peace, and to personal protection against the oppression of our rulers. No; lest a doubt should be raised, they have carefully connected the judges of both courts in the same sentence; they have said, "the judges both of the supreme and inferior courts," thus coupling them inseparably together. You may cut the bands, but you can never untie them. With salutary caution they devised this clause to arrest the over-bearing temper which they knew belonged to Legislative bodies. They do not say the judges, simply, but the judges of the supreme and inferior courts shall hold their offices during good behavior. They say, therefore, to the Legislature, you may judge of the propriety, the utility, the necessity, of organizing these courts; but when established, you have done your duty. Anticipating the course of passion in future times, they say to the Legislature, you shall not disgrace yourselves by exhibiting the indecent spectacle of judges established by one Legislature removed by another. We will save you also from yourselves. We say these judges shall hold their offices; and surely, sir, to pretend that they can hold their office after the office is destroyed, is contemptible. The framers of this constitution had seen much, read much, and deeply reflected. They knew by experience the violence of popular bodies, and let it be remembered, that since that day many of the States, taught by experience, have found it necessary to change their forms of government to avoid the effects of that violence. The convention contemplated the very act you now attempt. They knew also the jealousy and the power of the States; and they established for your and for their protection this most important department. I beg gentlemen to hear and remember what I say: it is this department alone, and it is the independence of this department, which can save you from civil war. Yes, sir, adopt the language of gentlemen, say with them, by the act to which you are urged, "if we cannot remove the judges we can destroy them." Establish thus the dependence of the Judiciary Department, who will resort to them for protection against you? Who will confide in, who will be bound by their decrees? Are we then to resort to the ultimate reason of kings? Are our arguments to fly from the mouths of our cannon? Is there a member of this House, who can lay his hand on his heart, and say that, consistently with the plain words of our constitution, we have a right to repeal this law? I believe not. And if we undertake to construe this constitution to our purposes, and say that public opinion is to be our judge, there is an end to all constitutions. To what will not this dangerous doctrine lead? Should it to-day be the popular wish to destroy the First Magistrate, you can destroy him; and should he to-morrow be able to conciliate to him the popular will, and lead them to wish for your destruction, it is easily effected. Adopt this principle and the whim of the moment will not only be the law, but the constitution of our country. The gentleman from Virginia has mentioned a great nation brought to the feet of one of her servants. But why is she in that situation? Is it not because popular opinion was called on to decide every thing, until those who wore bayonets decided for all the rest? Our situation is peculiar. At present our national compact can prevent a State from acting hostilely towards the general interest. But let this compact be destroyed, and each State becomes instantaneously vested with absolute sovereignty. Is there no instance of a similar situation to be found in history? Look at the States of Greece. They were once in a condition not unlike to that in which we should then stand. They treated the recommendations of their Amphictyonic Council (which was more a meeting of Ambassadors than a Legislative assembly) as we did the resolutions of the old Congress. Are we wise? So they were. Are we valiant? They also were brave. Have we one common language, and are we united under one head? In this, also, there was a strong resemblance. But, by their divisions, they became at first victims to the ambition of Philip, and were at length swallowed up in the Roman empire. Are we to form an exception to the general principles of nature, and to all the examples of history? And are the maxims of experience to become false, when applied to our fate? Some, indeed, flatter themselves that our destiny will be like that of Rome. Such, indeed, it might be, if we had the same wise but vile aristocracy, under whose guidance they became the masters of the world. But we have not that strong aristocratic arm, which can seize a wretched citizen, scourged almost to death by a remorseless creditor, turn him into the ranks, and bid him, as a soldier bear our eagle in triumph round the globe! I hope to God we shall never have such an abominable institution. But what, I ask, will be the situation of these States (organized as they now are) if, by the dissolution of our national compact, they be left to themselves? What is the probable result? We shall either be the victims of foreign intrigue, and split into factions, fall under the domination of a foreign power, or else, after the misery and torment of civil war, become the subjects of a usurping military despot. What but this compact--what but this specific part of it, can save us from ruin? The judicial power, that fortress of the constitution, is now to be overturned. Yes, with honest Ajax, I would not only throw a shield before it, I would build around it a wall of brass. But I am too weak to defend the rampart against the host of assailants. I must call to my assistance their good sense, their patriotism and their virtue. Do not, gentlemen, suffer the rage of passion to drive reason from her seat. If this law be indeed bad, let us join to remedy the defects. Has it been passed in a manner which wounded your pride, or aroused your resentment? Have, I conjure you, the magnanimity to pardon that offence. I entreat, I implore you to sacrifice those angry passions to the interests of our country. Pour out this pride of opinion on the altar of patriotism. Let it be an expiatory libation for the weal of America. Do not, for God's sake, do not suffer that pride to plunge us all into the abyss of ruin. Indeed, indeed, it will be but of little, very little avail, whether one opinion or the other be right or wrong; it will heal no wounds, it will pay no debts, it will rebuild no ravaged towns. Do not rely on that popular will, which has brought us frail beings into political existence. That opinion is but a changeable thing. It will soon change. This very measure will change it. You will be deceived. Do not, I beseech you, in reliance on a foundation so frail, commit the dignity, the harmony, the existence of our nation to the wild wind. Trust not your treasure to the waves. Throw not your compass and your charts into the ocean. Do not believe that its billows will waft you into port. Indeed, indeed, you will be deceived. Cast not away this only anchor of our safety. I have seen its progress. I know the difficulties through which it was obtained. I stand in the presence of Almighty God, and of the world: and I declare to you, that if you lose this charter, never, no, never will you get another! We are now, perhaps, arrived at the parting point. Here, even here, we stand on the brink of fate. Pause--pause! For Heaven's sake, pause! WEDNESDAY, February 3. The question was then taken on the final passage of the bill and determined in the affirmative--yeas 16, nays 15, as follows: YEAS.--Messrs. Anderson, Baldwin, Bradley, Breckenridge, Brown, Cocke, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright. NAYS.--Messrs. Chipman, Colhoun, Dayton, D. Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Ross, Sheafe, Tracy, Wells, and White.[65] So it was _Resolved_, That this bill pass, that it be engrossed, and that the title thereof be "An act to repeal certain acts respecting the organization of the courts of the United States, and for other purposes." SATURDAY, April 17. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President _pro tempore_, as the constitution so provides; and the honorable ABRAHAM BALDWIN was chosen. _Ordered_, That the Secretary notify the House of Representatives of this election. On motion, it was _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES, and acquaint him that the Senate have, in the absence of the VICE PRESIDENT, elected the honorable ABRAHAM BALDWIN their President _pro tempore_. MONDAY, April 26. _Relief to Widows and Orphans of Naval and Marine Officers._ The Senate resumed the third reading of the bill, entitled "An act for the relief of the widows and orphans of certain persons who have died, or may hereafter die, in the naval service of the United States." On motion to strike out the second section of the bill, to wit: "SEC. 2. _And be it further enacted_, That if any commissioned or warrant officer of the Navy, or commissioned officer of Marines, have died, or shall hereafter die, by reason of wounds received while in the actual service of the United States, or have been lost at sea, or drowned, or shall hereafter be lost at sea, or drowned, while in the service as aforesaid, and in the actual line of his duty, and shall leave a widow, or if not, leave a child or children, under age, such widow, or such child, or children, as the case may be, shall be entitled to, and receive, the half of the monthly pay to which the deceased was entitled at the time of his death, and for and during the term of five years. And in case of the death or intermarriage of such widow, before the expiration of the said term of five years, the half pay for the residue of the term shall go to the child or children of such deceased officer under the age of sixteen years; and, in like manner, the allowance to the child or children of such deceased, in case there be no widow, shall be paid no longer than during the time there is a child or children under the age of sixteen years." It passed in the affirmative--yeas 16, nays 8, as follows: YEAS.--Messrs. Anderson, Baldwin, Bradley, Brown, Clinton, Cocke, Dayton, T. Foster, Franklin, Jackson, S. T. Mason, Ogden, Olcott, Stone, Sumter, and Wright. NAYS.--Messrs. Ellery, Dwight Foster, Howard, J. Mason, Morris, Nicholas, Wells, and White. _Georgia Limits._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives_: In pursuance of the act, entitled "An act supplemental to the act, entitled 'An act for an amicable settlement of limits with the State of Georgia, and authorizing the establishment of a government in the Mississippi Territory,'" James Madison, Secretary of State, Albert Gallatin, Secretary of the Treasury, and Levi Lincoln, Attorney General of the United States, were appointed Commissioners, to settle by compromise, with the Commissioners appointed by the State of Georgia, the claims and cession to which the said act has relation. Articles of agreement and cession have accordingly been entered into and signed by the said Commissioners of the United States and of Georgia, which, as they leave a right to Congress to act upon them legislatively, at any time within six months after their date, I have thought it my duty immediately to communicate to the Legislature. TH. JEFFERSON. APRIL 26, 1802. The Message and documents therein referred to were read, and ordered to be printed for the use of the Senate. TUESDAY, April 27. _State Government for Ohio._ The Senate resumed the second reading of the bill to enable the people of the Eastern division of the territory north-west of the river Ohio to form a constitution and State government. On motion, section sixth, to strike out the following words, reported by the committee to be struck out, and which report was amended, as follows: "_Provided_, That the convention of the said State shall, on its part, assent that each and every tract of land sold by Congress, from and after the 30th day of June next, shall be and remain exempt from any tax laid by order or under authority of the State, whether for State, county, township, or any other purpose whatever, for the term of five years from and after the day of sale:" It passed in the negative--yeas 12, nays 14, as follows: YEAS.--Messrs. Bradley, Brown, Dayton, Dwight, Foster, Howard, J. Mason, Morris, Ogden, Olcott, Tracy, Wells, and White. NAYS.--Messrs. Anderson, Baldwin, Breckenridge, Clinton, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright. On motion to strike out the words reported by the committee to be struck out of section sixth, and amended as follows: "_Third._ That one-twentieth part of the net proceeds of the lands lying within the said State, sold by Congress, from and after the thirtieth day of June next, after deducting all expenses incident to the same, shall be applied to the laying out and making public roads, leading from the navigable waters emptying into the Atlantic to the Ohio, or to the navigable waters thereof, and continued through the said State: such roads to be laid out under the authority of Congress with the consent of the several States through which the road shall pass:" It passed in the negative--yeas 12, nays 14, as follows: YEAS.--Messrs. Bradley, Brown, Dayton, Dwight, Foster, Howard, J. Mason, Morris, Ogden, Olcott, Tracy, Wells, and White. NAYS.--Messrs. Anderson, Baldwin, Breckenridge, Clinton, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright. On motion to strike out these words, reported by the committee to be struck out of the sixth section: "_Second._ That the six miles reservation, including the salt springs, commonly called the Scioto Salt Springs, the salt springs near the Muskingum River, and in the military tract, with the sections of land which include the same, shall be granted to the said State, for the use of the people thereof, the same to be used under such terms, and conditions, and regulations, as the Legislature of the said State shall direct, provided the said Legislature shall never sell nor lease the same for a longer period than ten years:" It passed in the negative--yeas 8, nays 18, as follows: YEAS.--Messrs. Brown, Dwight Foster, Howard, J. Mason, Morris, Ogden, Olcott, and Tracy. NAYS.--Messrs. Anderson, Baldwin, Bradley, Breckenridge, Clinton, Dayton, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, Wells, White, and Wright. And the bill being further amended, it was ordered to the third reading as amended. THURSDAY, April 29. Mr. S. T. MASON presented the petition of David Brown, of Massachusetts, praying compensation for his sufferings while imprisoned under sentence of the judicial court, for seditious practices; and the petition was read, and ordered to lie on the table. FRIDAY, April 30. Mr. TRACY, from the committee to whom was referred, on the 29th instant, the bill to carry into effect a resolution of Congress for erecting a monument to the memory of the late General David Wooster, reported amendments; which were read, and ordered to lie for consideration. _Case of John Cleves Symmes and his land purchase in Ohio._ The Senate resumed the consideration of the report of the committee on the petition of John Cleves Symmes, which was adopted, as follows: 1. That, in the year 1788, the petitioner entered into a contract with the United States, upon a fair consideration, for the purchase of one million of acres of land in the North-western Territory. 2. That, in consequence of such contract, the petitioner made a settlement upon the tract, and sold many parcels thereof to adventurers, who went together with him into that new country, and located themselves there. 3. That, in the year 1794, the petitioner obtained a patent, under the authority of a law which enabled the President of the United States to make the same, for such proportion of the one million of acres, which had at that time been paid for, pursuant to the said contract, amounting to 311,682 acres of the said million of acres of land. 4. That the petitioner, after the said in part fulfilment of the contract on the side of both the parties to the same, proceeded to make sales (as he before had done in respect to the lands for which he had lately received the patent, as above mentioned) in the residue of the one million of acres, expecting to make the title when he should receive his patent thereof, agreeably to his contract, as he had before practised. 5. That no authority has been given by law, or otherwise, that can be found by your committee, whereby the said contract can be carried into execution on behalf of the United States, upon the payment of the sums further stipulated to be paid by the petitioner, agreeably to his contract, whereby he is entitled to a patent, upon payment of such stipulated sums; which payments the petitioner avers he always has been, and still is, ready to pay and perform, as thereunto required by his contract. 6. That your committee, from the papers and documents laid before them by the petitioner, or from the statement which he has made, do not perceive that the petitioner has done any one act, or omitted to do any act whereby he has forfeited any right to the full benefit of his contract before stated. 7. That no authority exists, by law, enabling any person to carry into execution the said contract on behalf of the United States; but, on the contrary, that two laws have been passed predicated upon the idea that the obligations of the United States, under the said contract, have ceased and determined; under the operation of which laws the said petitioner states, and your committee believe, that the said petitioner is suffering very great hardships, tending to the utter destruction and total waste of his whole property. 8. Your committee, the premises considered, beg leave to recommend the adoption of the resolution accompanying this report: _Resolved_, That the President of the United States be requested to direct the Attorney General to examine into the contract entered into between the United States and John Cleves Symmes, Esq., and others, bearing date on the 15th of October, 1788, and all the contracts and laws relative thereto; and all the transactions which may legally or equitably affect the same, as far as they may come to his knowledge; and to make a report of the same to the Senate at their next session, together with his opinion whether the said John Cleves Symmes has any claims, and what, upon the United States, in virtue of the said contract, or any other contract, or law predicated upon the same: and that the further consideration of the petition of said John Cleves Symmes, Esq., of and concerning the premises, be postponed to the first day of the next session of Congress. And the report was adopted. _Ordered_, That the Secretary lay this resolution before the PRESIDENT OF THE UNITED STATES. The resolution of the House of Representatives, authorizing the President of the Senate and the Speaker of the House of Representatives to adjourn their respective Houses on Saturday the first day of May, was read. The bill, entitled "An act making appropriations for the Military Establishment of the United States in the year one thousand eight hundred and two," was read the third time and passed. The bill, entitled "An act making appropriations for the support of Government for the year one thousand eight hundred and two," was read the third time. _Resolved_, That this bill do pass as amended. The bill making an appropriation for the support of the Navy of the United States, for the year one thousand eight hundred and two, was read the third time as amended. On motion to strike out the third section, agreed to yesterday, it passed in the affirmative--yeas 12, nays 11, as follows: YEAS.--Messrs. Bradley, Brown, Dwight Foster, Howard, Morris, Nicholas, Ogden, Olcott, Tracy, Wells, White, and Wright. NAYS.--Messrs. Anderson, Baldwin, Breckenridge, Clinton, Cocke, Ellery, Franklin, Logan, S. T. Mason, Stone, and Sumter. _Resolved_, That this bill do pass with the amendments. The bill, entitled "An act to provide for the establishment of certain districts, and therein to amend an act, entitled 'An act to regulate the collection of duties on imports and tonnage, and for other purposes,'" was read the third time, and passed with an amendment. Mr. BRADLEY, from the committee to whom was referred, on the 6th and 7th instant, the petition of Elijah Brainard, also the petition of Jonathan Snowden, reported that the consideration of said petitions be severally postponed to the next session of Congress, and that the committee to whom the same were referred be discharged, and the report was adopted. Mr. S. T. MASON, from the committee to whom was referred, on the 29th instant, the bill to incorporate the inhabitants of the City of Washington in the District of Columbia, reported amendments; which were read, and ordered to lie for consideration. On motion, it was _Ordered_, That the bill for the better security of public money and property in the hands of public officers and agents, as amended by the House of Representatives, be postponed to the next session of Congress. Mr. S. T. MASON, from the committee to whom was referred, on the 29th instant, the bill additional to, and amendatory of, an act, entitled "An act concerning the District of Columbia;" reported amendments which were read, and ordered to lie for consideration. MONDAY EVENING, 7-1/2 o'clock, May 3. _Adjournment._ A message from the House of Representatives informed the Senate that the House have appointed a committee on their part, with such as the Senate may appoint, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that, unless he hath any further communications to make to the two Houses of Congress, they are ready to adjourn, and they desire the appointment of a committee on the part of the Senate. The Senate took into consideration the resolution of the House of Representatives appointing a committee, jointly, with such as the Senate may appoint, to wait on the PRESIDENT OF THE UNITED STATES and notify him of the proposed adjournment of the two Houses of Congress; and _Resolved_, That they do concur therein, and that Messrs. ELLERY and CLINTON be the committee on the part of the Senate. Mr. ELLERY, from the joint committee, reported that they had waited on the PRESIDENT OF THE UNITED STATES, agreeably to the vote of the two Houses, and that he informed them he had no further business to communicate. _Ordered_, That the Secretary notify to the House of Representatives that the Senate, having completed the business of the session, are ready to adjourn. A message from the House of Representatives informed the Senate that the House of Representatives having completed the business before them are about to adjourn. Whereupon, the Senate adjourned to the first Monday in December next. SEVENTH CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, December 7, 1801. This being the day appointed by the constitution for the annual meeting of Congress, the following members of the House of Representatives appeared, produced their credentials, and took their seats in the House, to wit: _From New Hampshire._--Abiel Foster, George P. Upham, and Samuel Tenney. _From Massachusetts._--William Eustis, John Bacon, Phanuel Bishop, Joseph B. Varnum, Richard Cutts, Lemuel Williams, William Shepard, Ebenezer Mattoon, Nathan Read, Josiah Smith, and Manasseh Cutler. _From Rhode Island._--Thomas Tillinghast, and Joseph Stanton, jr. _From Connecticut._--Roger Griswold, Samuel W. Dana, John Davenport, Calvin Goddard, Benjamin Tallmadge, Elias Perkins, and John C. Smith. _From Vermont._--Israel Smith. _From New York._--Samuel L. Mitchill, Philip Van Cortlandt, Theodorus Bailey, John Smith, Benjamin Walker, Thomas Morris, Killian K. Van Rensselaer, Lucas Elmendorph, David Thomas, and John P. Van Ness. _From New Jersey._--John Condit, James Mott, William Helms, Henry Southard, and Ebenezer Elmer. _From Pennsylvania._--William Jones, Michael Leib, John Smilie, William Hoge, Isaac Vanhorne, Joseph Heister, Robert Brown, Henry Woods, John A. Hanna, John Stewart, Thomas Boude, and Joseph Hemphill. _From Delaware._--James A. Bayard. _From Maryland._--John Archer, Joseph H. Nicholson, Samuel Smith, Richard Sprigg, John Dennis, and Thomas Plater. _From Virginia._--Thomas Newton, jr., John Randolph, jr., George Jackson, Philip R. Thompson, John Taliaferro, John Stratton, William B. Giles, Abram Trigg, John Trigg, Anthony New, John Smith, David Holmes, Richard Brent, Edwin Gray, and Matthew Clay. _From Kentucky._--Thomas T. Davis, and John Fowler. _From North Carolina._--Nathaniel Macon, Willis Alston, Richard Stanford, Charles Johnson, Archibald Henderson, and John Stanley. _From Tennessee._--William Dickson. _From South Carolina._--Thomas Sumter, Thomas Moore, and Thomas Lowndes. _From Georgia._--John Milledge. _From the North-west Territory._--Paul Fearing. _From Mississippi Territory._--Narsworthy Hunter. A quorum, consisting of a majority, being present, the House proceeded, by ballot, to the choice of a Speaker; and, upon examining the ballots, a majority of the votes of the whole House was found in favor of NATHANIEL MACON, one of the Representatives for the State of North Carolina: Whereupon, Mr. MACON was conducted to the chair, and he made his acknowledgments to the House as follows: "GENTLEMEN: Accept my sincere thanks for the honor you have conferred on me, in the choice just made. The duties of the chair will be undertaken with great diffidence indeed; but it shall be my constant endeavor to discharge them with fidelity and impartiality." The House proceeded, in the same manner, to the appointment of a Clerk; and, upon examining the ballots, a majority of the whole House was found in favor of JOHN BECKLEY. The oath to support the Constitution of the United States, as prescribed by law, was then administered by Mr. GRISWOLD, one of the Representatives for the State of Connecticut, to the SPEAKER; and then the same oath, or affirmation, was administered, by Mr. SPEAKER, to each of the members present. A message from the Senate informed the House that a quorum of the Senate is assembled, and ready to proceed to business; and that, in the absence of the Vice President, they have elected the honorable ABRAHAM BALDWIN, President of the Senate, _pro tempore_. _Ordered_, That a message be sent to the Senate to inform them that a quorum of this House is assembled, and have elected NATHANIEL MACON, one of the Representatives of the State of North Carolina, their Speaker, and are ready to proceed to business; and that the Clerk of this House do go with the said message. The House proceeded, by ballot, to the choice of a Sergeant-at-Arms, Doorkeeper, and Assistant Doorkeeper; and upon examining the ballots, a majority of the votes of the whole House was found in favor of JOSEPH WHEATON, as Sergeant-at-Arms, and, also, a unanimous vote in favor of THOMAS CLAXTON, and THOMAS DUNN, severally, the former as Doorkeeper, and the latter as Assistant Doorkeeper. A message from the Senate informed the House that the Senate have appointed a committee on their part, jointly, with such committee as may be appointed on the part of this House, to wait on the PRESIDENT OF THE UNITED STATES, and inform him that a quorum of the two Houses is assembled, and ready to receive any communications he may think proper to make to them. Mr. SAMUEL SMITH, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled and ready to receive any communication he may think proper to make to them, reported that the committee had performed that service, and that the PRESIDENT signified to them that he would make a communication to this House, to-morrow, by message. TUESDAY, December 8. Several other members, to wit: from Pennsylvania, ANDREW GREGG; from Virginia, SAMUEL J. CABELL; from North Carolina, JAMES HOLLAND; and from South Carolina, WILLIAM BUTLER; appeared, produced their credentials, and took their seats in the House; the oath to support the Constitution of the United States being first administered to them by Mr. SPEAKER, according to law. A petition of John McDonald, late of the city of Philadelphia, was presented to the House and read, praying that he may be employed to superintend the arrangement and safe-keeping of the books intended for the library of the two Houses of Congress; and that he may receive such compensation for his services, in that capacity, as to the wisdom of Congress shall seem meet. _Ordered_, That the said petition be referred to the committee appointed yesterday, on the part of this House, jointly with the committee appointed by the Senate, to take into consideration a statement made by the Secretary of the Senate, respecting books and maps purchased pursuant to a late act of Congress, and to make report respecting the future arrangement of the same. The following committees were appointed pursuant to the standing rules and orders of the House, viz: _Committee of Elections._--Mr. MILLEDGE, Mr. TENNEY, Mr. CONDIT, Mr. DENNIS, Mr. HANNA, Mr. STANLEY, and Mr. JOHN TALIAFERRO. _Committee of Revised and Unfinished Business._--Mr. DAVENPORT, Mr. CLAY, and Mr. ALSTON. _Committee of Claims._--JOHN COTTON SMITH, Mr. GREGG, Mr. HOLMES, Mr. MATTOON, Mr. JOHN SMITH, of New York, Mr. PLATER, and Mr. MOORE. _Committee of Commerce and Manufactures._--Mr. SAMUEL SMITH, Mr. EUSTIS, Mr. DANA, Mr. MITCHILL, Mr. JONES, Mr. NEWTON, and Mr. LOWNDES. _Resolved_, That a standing Committee of Ways and Means be appointed, whose duty it shall be to take into consideration all such reports of the Treasury Department, and all such propositions, relative to the revenue, as may be referred to them by the House; to inquire into the state of the public debt, of the revenue, and of the expenditures; and to report, from time to time, their opinion thereon. _Ordered_, That Mr. RANDOLPH, Mr. GRISWOLD, Mr. ISRAEL SMITH, Mr. BAYARD, Mr. SMILIE, Mr. READ, Mr. NICHOLSON, Mr. VAN RENSSELAER, and Mr. DICKSON, be appointed a committee, pursuant to the said resolution. WEDNESDAY, December 9. Another member, to wit, JOHN CAMPBELL, from Maryland, appeared, produced his credentials, was qualified, and took his seat in the House. THURSDAY, December 10. Mr. ELMENDORPH, from the committee to whom was referred, on the eighth instant, a letter from THOMAS CLAXTON, the Doorkeeper of this House, relative to certain expenditures, and further assistance necessary to be allowed for enabling him to execute the duties of his station, made a report; which was read and considered: Whereupon, _Resolved_, That THOMAS CLAXTON be, and is hereby, authorized to employ, under his immediate direction, one additional assistant, two servants, and two horses, for the purpose of performing such services and duties as are usually required by the House of Representatives, during the present session, and for four days thereafter; and the sum of five dollars and seventy-five cents per day be allowed to him for that purpose; and that he be paid therefor out of the fund appropriated for the contingent expenses of the House. A message from the Senate informed the House that the Senate have proceeded to the appointment of a Chaplain to Congress, on their part, and the Rev. Mr. GANTT has been duly elected. FRIDAY, December 11. Several other members, to wit: from New Hampshire, JOSEPH PEIRCE; from Massachusetts, PELEG WADSWORTH; from Virginia, THOMAS CLAIBORNE and JOHN CLOPTON; and, from North Carolina, WILLIAM H. HILL, appeared, produced their credentials, were qualified, and took their seats in the House. MONDAY, December 14. Another member, to wit, LEWIS R. MORRIS, from the State of Vermont, appeared, produced his credentials, was qualified, and took his seat in the House. TUESDAY, December 15. _Barbary Powers._ The House resolved itself into a Committee of the Whole on the State of the Union, the following resolution being under consideration: "_Resolved_, That it is expedient that the President be authorized by law, further and more effectually to protect the commerce of the United States against the Barbary Powers." Mr. NICHOLSON said, that when this resolution was yesterday laid on the table, he had moved, for reasons that he had assigned, to strike out the words "further and more." He was, on reflection, more and more persuaded of the accuracy of his objections to the unqualified terms of the original motion. If we adopt it, we pledge ourselves to increase the naval force at present at the disposition of the President. But if his modification were agreed to, every gentleman would remain at liberty to put his own construction on the words "effectual force." Uninformed as we were as to the necessity of increasing the force, it would be highly improper to commit ourselves by any precipitate decision. He, therefore, moved to strike out the words "further and more." Mr. GILES opposed the striking out the words, which, in his opinion, did not relate to the quantum of force placed under Executive disposition, but to the measures proposed to be taken by the Executive. He should vote for the motion unamended, though he had been, and still was, as averse as any gentleman in that House to an improper augmentation of the Army or Navy. With respect to the Navy, he was friendly to it as it now stood, or to an augmentation of it to meet any particular emergency. Mr. S. SMITH said that as he understood the resolution, it went not to pledge any man to augment the Navy, but to authorize the President, with the present force, to take measures for the defence of our trade. We were at war with Tripoli. Against that power, therefore, the President felt himself at liberty to act efficiently. But gentlemen should advert to our situation with regard to Algiers and Tunis. Those powers may become hostile. They may become so in the recess of Congress. It may be necessary without delay to protect our trade against them. Will you then confine the President, in relation to these powers, to a Peace Establishment? Certainly, when these circumstances were duly weighed, no gentleman will refuse the power which this resolution is intended to confer. Mr. SMILIE was in favor of the amendment for one reason. He was ready at all times to grant commerce every necessary protection. But by adopting this resolution, we pledge ourselves, without inquiring into the necessity, to extend further protection. No doubt further protection will be required. But he thought it premature to make any pledge until all the documents connected with the subject were before the House. Mr. MITCHILL suggested the propriety of amending the original resolution by inserting after the word "law," "if necessary." This would render the resolution conditional. To the resolution he was a friend. For when the aspect and extent of the United States were considered, it must be evident to every man that we were a commercial people. The bulk and extensiveness of our produce required vessels to carry it to foreign countries. The carriage required protection. The Government must of course give protection. With respect to the Mediterranean expedition, no plan under the Government had been better devised; and he had no hesitation to say, that if the Mediterranean trade required further protection, he would be for making further appropriations of the public moneys. Mr. NICHOLSON said he could not agree to the suggestion of the gentleman from New York, as by adopting it we should do nothing. How does the matter now stand? Congress has put into the hands of the President six frigates, which he had used for the public service in the Mediterranean. This was not a fit time to express his opinion on the propriety of the measures of the Executive. But when a fit occasion did offer, he would have no hesitation to say the President had done right. To return to the point--The President had now six frigates. If we agree to the resolution, do we not pledge ourselves to increase this force? One squadron had been sent to the Mediterranean; another was in operation to go there, he understood. This was all right. But there followed no necessity from these circumstances to pledge ourselves to increase the force. We were not even acquainted with the sentiments of the President on this point. His communications did not inform us that he desired a larger force. If he did desire it, he would say so. He had, on the contrary, recommended a reduction of the Army and Navy; and to desire an augmentation of the latter, would be, in the same breath, to say one thing and mean another. Mr. EUSTIS.--The President, in his communications, has informed us that he has hitherto acted on the defensive. The simple question now is, whether he shall be empowered to take offensive steps. This has no relation, therefore, to an increase of the force; nor shall we, by adopting it, pledge ourselves to such effect. Mr. GILES was happy that the discussion was one more of words than of principles. He perfectly coincided with the gentleman from Maryland, who had moved the amendment, in his general sentiments. It would be wrong in this House prematurely to pledge itself for an increase of naval force. But the words of the resolution do not relate to the quantum of force, but entirely to the measures to be taken with any force. When the President is authorized further and more effectually to protect our trade, it was not said that we will give him four or six additional frigates; but merely that he is to have means, more or less, which shall be adequate to make offensive operations against those who shall make offensive operations against us. It was well understood that he was for keeping the Navy within proper bounds; but if ever there was a case where it was required, this was the case, and he acknowledged that he was for empowering the President to authorize not merely a dismantlement of a vessel, but her capture. The question was then taken on Mr. NICHOLSON'S amendment and lost. When the original motion of Mr. SMITH was carried. _Ordered_, That a bill or bills be brought in, pursuant to the said resolution; and that Mr. EUSTIS, Mr. SAMUEL SMITH, Mr. DANA, Mr. MITCHILL, and Mr. JONES, do prepare and bring in the same. WEDNESDAY, December 16. Another member, to wit, BENJAMIN HUGER, from South Carolina, appeared, produced his credentials, was qualified, and took his seat in the House. _Ratio of Representation._ The House, according to the order of the day, proceeded to consider the first resolution reported yesterday from the Committee of the whole House on the state of the Union, in the words following, to wit: "_Resolved_, That the apportionment of Representatives amongst the several States, according to the second enumeration of the people, ought to be in a ratio of one Representative for every thirty-three thousand persons in each State." Mr. GRISWOLD remarked, that the effect of adopting this resolution would be an increase of members in that House; that the number would amount to nearly one hundred and fifty. He was of opinion that the present House was sufficiently numerous for every correct purpose, as well of legislation, as for obtaining all desirable information from the people. Should an augmentation be made, the consequences would be an increase of expense, and business would inevitably be protracted. He moved, therefore, to strike out the words "thirty-three," meaning, if they were stricken out, to propose the substitution of a larger number. On this motion a desultory debate ensued, in which Messrs. GRISWOLD, S. SMITH, NICHOLSON, GILES, BAYARD, ALSTON, ELMER, EUSTIS, SPRIGG, and other gentlemen, took part. Mr. GRISWOLD stood alone in advocating an apportionment of one member to every 40,000 persons. Messrs. GILES and BAYARD were for one member for every 30,000. Messrs. S. SMITH, NICHOLSON, and EUSTIS, were for one member for 33,000. Mr. ALSTON was in favor of one representative for every 31,000. The preferences avowed by the several speakers, appeared to arise from the application of that divisor to the State from which each member came, which left the least fraction. Some gentlemen, however, declared, and particularly Mr. GILES, that he had made no calculation, and that his preference of the smallest ratio proposed was the preference of principle. Those in favor of a small ratio argued that, though the expense attending the compensation of the members might be somewhat increased, yet that it would be trifling compared with the great advantages that would result from a larger representation; that such a representation would be productive of true economy, as it would oppose all extravagant expenditure of money; that the weight of expense incurred by the Government, did not arise from the expense of the civil list, which formed but a speck in the mass of expenditure; that it was important to this Government to adopt those measures which would ensure the respect and the confidence of the people; that this end would be best attained by each Representative being familiarly acquainted with the interests of his constituents; and that this could only be the case when the number of his constituents were limited within certain bounds. It was true that it had been said that a body of more than one hundred, even though it be composed of philosophers, was a mob; but it was replied that the long experience of this country had proved the reverse, for that many of the State Legislatures consisted of more members. These ideas were but feebly opposed. The diversity of opinion expressed chiefly arose from a division of the House on the ratios of thirty thousand and thirty-three thousand. The former was advocated principally from a regard to Delaware and Rhode Island, which, by its adoption, would have each two Representatives instead of one, if a higher ratio were preferred. During the discussion, it was moved to strike out the word "three;" leaving thirty thousand as the ratio. This motion was lost--yeas 43, nays 46. Mr. BAYARD then moved to strike out "thirty-three," leaving the resolution blank, in order that it might be filled up with such number as should be agreeable to the House. This motion was opposed chiefly by Mr. NICHOLSON and Mr. EUSTIS, who were of opinion that the progressive increase of the members would be sufficiently large on the ratio of thirty-three thousand persons to a member. They were also further in favor of this number as it left the fewest fractions. The only two States much injured by it would be Delaware and North Carolina; whereas, if the ratio was increased to thirty-five thousand, New Jersey would have a fraction of 31,000; Delaware of 26,000; Maryland of 30,000; Georgia of 23,000; and Kentucky of 29,000. On the question being taken for striking out "thirty-three," there rose only thirty-one members. It was therefore declared to be lost. The question was then taken on the original motion, and carried without a division, and a committee of three members appointed to bring in a bill conformably thereto. THURSDAY, December 17. Another member, to wit, DANIEL HEISTER, from Maryland, appeared, produced his credentials, was qualified, and took his seat. FRIDAY, December 18. _Public Printing._ Mr. RANDOLPH, chairman of the committee appointed to see what alterations were necessary to expedite the printing business of the House, reported that the committee thought it expedient to request the Heads of the Departments to attend and inspect the printing of all such documents, reports, and statements, as are directed by law to be annually laid before the House; and that it was necessary that a printer to the House be appointed, who shall be responsible for the faithful and prompt execution of all business confided to him by order of the House. Mr. GRISWOLD wished the report altered to a resolution; to the first part of it he should agree, but doubted whether the latter part would be concurred in. He did not think it sufficient or expedient to appoint but one; the business would require more, particularly at the close of the session. He could see no reason for altering the mode in which the printing business was now and had ever been done; it now lies with the Clerk, who is empowered to employ as many persons as he pleases or deems expedient. If such printer should be appointed, he will become an officer of the House; he will not be responsible to the Speaker. We have officers enough already; it is needless to multiply. Mr. RANDOLPH said, the committee had considered these objections; but, he believed, sufficient reasons might be offered to convince the House of the expediency of this measure. If one be appointed, he will know his duty and be prepared; he will employ as many hands as he wishes. Had there been one appointed by the House last session, he would have been on the spot now, fully prepared promptly to execute the orders of the House; nor should we have such delay as that by which we are now unfortunately troubled. Mr. NICHOLSON.--We have but few printers in this vicinity, nor is it probable their number will be soon increased. The printing for the House is said to be worth $4,000 per annum; if one be appointed for that purpose, he will have every thing in readiness, and be responsible for his faithful duty. Mr. S. SMITH thought a printer thus appointed might perform a considerable part of his duty previous to each session; to many documents he might attend. Mr. S. wished such printer appointed as a permanent officer. Mr. LOWNDES.--If he thought such officer necessary he should not oppose the measure, but at present he did not think such appointment necessary. He conceived the Clerk to be responsible to the House; that it was his duty to attend to the printing; that he could employ whom and as many as he pleased. Whence, then, the necessity of such appointment? Besides, such printer will become an officer of this House, must have a salary, and will be called the printer of the House: and, if printer of a paper, whatever sentiments might be advanced in such paper would perhaps be considered as the sentiments of the House. Mr. EUSTIS considered it altogether unnecessary, disadvantageous, and troublesome. The first was carried: that relating to the appointment of a printer not carried; about twenty only rising in favor of it. _Apportionment Bill._ The House resolved itself into a Committee of the Whole on the bill for the apportionment of Representatives among the several States, according to the second enumeration. Mr. MACON (Speaker) moved to strike out "thirty-three," the ratio fixed by the bill, for the purpose of inserting "thirty." Mr. M. observed that it did not appear, from the different ideas expressed by different gentlemen, that any material inconvenience would result from the increased number of members that would be created by the ratio of thirty thousand being adopted. Whereas on the ground of principle a great benefit would flow from it. In his opinion, to secure the confidence of the people in the Government, it was essential to lessen the districts as much as possible, that the elector might know the elected. At present, particularly in North Carolina, they were so large that a voter depended more upon the opinions of others than upon his own information. The ratio of thirty thousand would not introduce into the House more than one hundred and sixty members, which number did not equal that of the members in several of the State Legislatures, of which no complaints had been made, and from which no inconvenience had arisen. He felt particularly for Delaware, which would be severely affected by the ratio in the bill. Mr. GILES hoped the motion would obtain. As far as respected the State of Virginia, he felt little or no anxiety. But he, on general principles, preferred the smallest ratio. It was an essential principle of a Republican Government that the people voting should know whom they vote for; that the elector should be well acquainted with the elected. To ensure this effect the districts should be small. He was aware of the impossibility of reaching this point precisely: but it was our duty to approach it as nearly as possible. Though, in relation to the situation of Delaware, he did not subscribe fully to the ideas of some gentlemen, as the case was an extreme one, and he knew the impropriety of relying upon such cases, as the reasoning from an extreme generally led to an extreme, yet he thought the relative circumstances of Delaware and Virginia, as stated, to be correct; for it was a fact that Virginia, entitled to twenty-two Representatives, was not so much affected by any given fraction, as Delaware, entitled to but one Representative. But the reply to the inequality of her representation here is, that she has two Representatives in the Senate; and it is inferred that she will hence derive a larger weight in the Union. Such was the theory of the thing. But what was the result of experience? Mr. G. said, he had once supposed that the small States would have an undue advantage over the large States. His opinion had since altered. All the small States were surrounded and compressed by large States, and derived their political sympathies from them. It was true, the small States had each two votes in the Senate. Yet, what superior advantage have they in the Government generally? He was, therefore, clearly of opinion that the claims of the small States to the largest representation that could be constitutionally given them, ought not to be affected by their representation in the Senate. The fact was that this House was the basis of confidence in the Government. We had heard much about an alarm, about disorganization, and the disposition of large States to swallow up the rights of all the other States. He would ask, whether the adoption of a large ratio would lessen this clamor, promote the general confidence, and increase the stability of the Government? Mr. JONES hoped the amendment would prevail. There was not a doubt but that the small States would be materially affected by the ratio in the bill. It was true, that, according to the theory of our Government, the members of that House did not represent the States. But, what was the fact? In truth, our representation was that of absolute locality. Can I, said Mr. J., represent as effectually Massachusetts, or Vermont, as Pennsylvania? Mr. VAN NESS declared himself to be uninfluenced by local considerations, or particular inconveniences. If we attempted to avoid them by the adoption of any ratio, we should be mistaken. The inequality of States could not be remedied. If a remedy was sought, it must be found in the Senate. The large States had not that exclusive weight which had been stated. If the number of the large States in this House should overbear the smaller States, they would find their protection in the Senate. The fractional loss, so much dwelt on, was not a loss to the State, it was only a loss to that part of the State which was unrepresented, and the loss would be the same to a larger State, if its unrepresented fraction was equally great. Mr. V. N. said, it had always been his desire to consult the wishes of the people and to conform to them. He considered those wishes as solemnly expressed in the constitution, which had decided that the ratio should not be less than thirty thousand, and in the law passed immediately after the adoption of the constitution, fixing the ratio at thirty-three thousand. As to the experience of the State, so often appealed to, he would state that of his own. The constitution of New York originally fixed the representation in one branch at three hundred, and in the other at one hundred and fifty. After suffering the inconveniences of so large a legislative body, a convention had been called, which reduced the one branch to one hundred and fifty, and the other to thirty-two members. It was the opinion of some gentlemen that the essential principle of our Government was the equal representation of the States in the Senate. This was a mistaken opinion. The federalism of the Government might have been as well preserved by an unequal representation in the Senate. The feature was not the offspring of principle, but of concession. If we looked to antiquity, we would observe the smaller States of a Confederation always inferior to the larger; and he recollected one case of a Confederation, in which one State was entitled to three, another to two, and the third to one representative. Mr. SMILIE heartily concurred in opinion with the gentleman from New York, that we ought not to respect local feelings, but that we ought to go upon general grounds. Possessing these principles, we still know how difficult it is to do complete justice. For himself he would be satisfied with the ratio of thirty-three, if he could not obtain that of thirty thousand. He was in favor of a large representation, because he relied on that for safety and economy. For, when he considered the great powers of the other branches of the Government, (powers, in the opinion of some men, too great,) he thought it was their duty to impart to that House all the constitutional power that could be conferred. This would enable the House to resist all encroachments attempted to be made upon it. Mr. BACON said that, for himself, he was satisfied with the present ratio, as it stood in the bill. This was the ratio which had been adopted when our numbers were much less than they now are; that it did not appear but that it had given general satisfaction; and that no other inconveniences had accrued than such as might be expected to follow from the adoption of any other ratio whatever. It would seem to be rather unnatural, and the reverse of what was contemplated by those who enacted the constitution, as our numbers increase, to lessen the ratio of representation. He was, therefore, against striking out the number thirty-three, with a view to insert a lower number. A divisor of thirty-three thousand would now give a House consisting of at least one hundred and forty members, which, even on the present ratio, must soon become not only too expensive, but unwieldy. It had been repeatedly urged that the present ratio leaves a very large fraction to the State of Delaware. This, it was admitted, was matter of regret; but that, let what ratio might be adopted, such fractional parts must be expected to fall somewhere; that such fractions would be likely to vary, from time to time, and shift from State to State, as the population may increase and vary in the several States. And Mr. B. did not conceive that the particular case of Delaware, hard as it might seem, furnished a sufficient reason for altering an entire system. As to what had been urged of the disadvantage to which Electors were subjected in large districts, of not knowing the characters of their Representatives and candidates, Mr. B. observed that this was a disadvantage which was lessening with rapidity from year to year, and from one election to another; that to whatever inconvenience electors may heretofore have been subjected by the want of a knowledge of their candidate, from this inconvenience they are already in a great measure relieved; and it must, in a very short time, entirely cease to exist. If any inconvenience of this kind still remains, by an election or two more, it would be entirely removed. It had been urged that Delaware had but one Representative, and every State ought to have two. But, why two, Mr. B. queried, rather than three? It is true, that two are better than one; and three are better than either one or two; for, as we have long since been told, "a three-fold cord is not easily broken." Mr. B. concluded by saying that, as thirty-three thousand was the ratio which had been adopted when our population was much less than it now is; and as it has been practised upon without any inconvenience or general dissatisfaction, he was unwilling to risk the uncertain consequences of an innovation at this particular time. Mr. T. MORRIS was of opinion that the arguments drawn from the representation in the Senate had nothing to do with this question. The House had a constitutional duty to perform, that was highly interesting. The only question is, How it shall be performed? The people ought to be fully represented; that is, the number of their representatives should be increased until that number became inconvenient for the transaction of business. He had never been a friend to an enormous Legislature; such as that in France, a mob convention. He thought the idea incorrect that this House should acquire a weight that might cause it to bear down the other branch of the Legislature. He hoped, if any such attempt should be made, that body would have sufficient spirit to resist it; and he trusted there would always be firmness enough here to resist any encroachment attempted. As to the present ratio guiding, he did not think that the House should be governed by any uniform rule. They ought, on the contrary, to be governed by the existing circumstances. Not believing that any inconvenience would arise from the augmented representation on the ratio of thirty thousand, he would be in favor of it from the reasons he had assigned. Mr. DENNIS did not rise to say any thing new on the subject; but merely, as he had altered his mind since the business was before the House, to assign some of the reasons which had influenced him. He was now in favor of the ratio of thirty thousand. His first impressions were against it from an apprehension that the increased numbers of the House would increase expense, and produce disorder. But he acknowledged himself convinced by the arguments which had fallen from the gentleman from Virginia, which he thought counterbalanced his previous apprehension. Mr. D. thought it all-important to preserve an equilibrium between the different departments of the Government, and he was convinced that this would be best effected by making the representation in this House as large as the constitution permitted, and convenience justified. If we expected to retain the confidence of the people, it was necessary to increase the Representative branch; for it would be in vain to look for that confidence necessary to give it a proper portion of energy, unless there existed a sympathy between the elector and the elected. Mr. RANDOLPH hoped the amendment would not obtain. The difference between the effects of the two ratios was not very important; but it was highly important that a doctrine so heretical and improper as that which had been avowed, should be exploded on its first annunciation. He meant that doctrine which considered this House as the Representatives of the people. When the constitution was formed, two great difficulties presented themselves. The large States refused to confer on the Government greater powers than those it enjoyed, which deeply affected their wealth and their numbers, unless, according to the ratio of their numbers, they should participate in the administration of it; while the smaller States withheld their concurrence, unless their sovereignties were guarantied and protected. These two difficulties were surmounted by the plan of the present constitution; according to which the members of this House were the Representatives, not of the people, but of the States in proportion to their numbers. This was the theory of the Government for which he must contend. Mr. R. believed that the strongest objection urged against the adoption of the constitution, was, that it tended to a consolidation of the States. But when he looked into it with a Federal eye, (and with no other eye could he ever look at it,) he saw the State sovereignties in all its parts acknowledged and protected. Of this, the very bill was itself a proof. For the apportionment was not among the people, but among the States, according to the numbers of each. Believing that this House is the representative of States, it was his opinion that so long as the relative weight of States could be preserved, it was immaterial that each State should be represented by a large number of members. It was with extreme regret, and some diffidence, Mr. R. said, that he differed from his colleague on this subject. His colleague wished to increase the House to such an extent as to make it the depository of the whole confidence of the people. Mr. R. wished it to possess that confidence so far as related to Federal objects, but no further. Increase it, according to the theory of gentlemen, make it in point of numbers, a British Parliament, or a French convention, and you will proportionably diminish the confidence of the people in the State governments. They will become feeble barriers against the powers of the General Government; and the people will inquire for what purpose they elect their State Legislatures. Mr. R. believed it to be of infinite importance that the poises of the Government should be preserved; that it should confine itself to Federal objects. His object, therefore, was to preserve on that floor the proportionate weight between the several States which the constitution had fixed. Had any objection been made to the old Congress under the Confederation, that was federally organized, for the want of talents or integrity? No. The only objection was, that they wanted power. Had the public affairs been conducted with less ability than they are at present? He had neither heard, nor did he believe that they had. Mr. R. concluded, by making some remarks on the score of convenience, similar to those already stated. Mr. MITCHILL, in a speech of some length, supported the ratio of thirty thousand. Mr. S. SMITH felt indifferent whether the ratio of thirty-three, or that of thirty thousand, were adopted; but felt anxious that justice should be done to the State of Maryland. He understood that radical errors existed in the numbers given to that State; that in Harford County there were returned only three thousand slaves, whereas there ought to have been returned eighteen thousand; and that in Cecil there had been returned nine thousand, instead of fifteen thousand. He hoped, in order to have these errors corrected, the committee would rise, that the original returns in the office of State might be examined. This motion gave rise to a conversation of some length, in which on one side the impropriety and injustice of making an apportionment under the existing errors, and without the return from Tennessee, were argued; and, on the other side, the great inconvenience of delay, and the inability of the House to obtain a correction of errors, which, if attempted in one instance, might be attempted in many. Mr. VAN NESS informed the committee that the return from Tennessee was received at the office of State, and that it made the population of that State amount to ninety-two thousand free inhabitants, and thirteen thousand slaves. It was ultimately agreed that the committee rise, report progress, and ask leave to sit again; which was granted. MONDAY, December 21. _Georgia Limits, and Delegate from Mississippi._ The House resolved itself into a Committee of the whole House on the report of the Committee of Elections, to whom were referred the credentials of Narsworthy Hunter, who has appeared as a Delegate from the Territory of the United States known by the name of the Mississippi Territory. Mr. MILLEDGE spoke forcibly, and with considerable eloquence against agreeing to the report of the committee; he said it was not a matter of private but of general concern--that Georgia had jurisdiction over that territory; to prove this, he called for the reading of the memorial of Georgia to the Legislature of the Union. [The memorial was extremely long, and was read but in part.] Mr. M. insisted on the right of Georgia to the soil; he would assert to that body and to the world that she had never given up that right; and that therefore the laws that had been passed by Congress for the government of that territory were void, and the gentleman elected as a delegate to Congress by the Legislature of that territory had no right to a seat in the House. Gentlemen might say what they please of the expediency of Congress making laws for the government of that territory, yet that expediency must yield to justice and to just claims; depriving Georgia of her command over that soil and over the people of that soil, was a glaring violation of right. Commissioners had been appointed to settle the dispute between the United States and Georgia; those commissioners are here, and probably it will not be long before those claims are adjusted; he hoped and trusted no farther proceedings would take place till the dispute was completely settled. Mr. BAYARD.--The gentleman from Georgia appeared to mistake the object of the report of the select committee; that committee was appointed to examine the credentials of Mr. Hunter, and to see whether the Legislature of the Mississippi territory had a right, by the law of Congress regulating that government, to send a delegate, to exercise here the right of debating, but not of voting; it was not to admit into the Union a new State, or to erect a new State within the bounds of another. The law of Congress, establishing the government of that territory, declares that when in that territory there shall be such a number of inhabitants, they shall have a House of Representatives and a Legislature; and that when their inhabitants shall have increased to such a number, the Legislature may appoint a delegate to Congress, with the right of debating, but not of voting. It is not now a question whether a new State shall be erected, but whether this member be duly chosen. Nor are the interests of Georgia at all affected: the fifth section of the law establishing this Government expressly declares that nothing in the law for establishing a temporary government there, shall in any manner affect any claims of the State of Georgia to that soil. Commissioners are appointed on the part of the United States and Georgia to settle the dispute between the two Governments; but till those disputes shall be settled, shall the inhabitants of that territory be without a government? No, sir, it is not a matter of discretion with us; we are bound by a positive law of Congress. If the gentleman was urgent against Mr. HUNTER'S taking his seat, the only way to effect it is, by repealing the law of Congress establishing the Government of the Mississippi Territory. Mr. DAVIS.--The House have no business to meddle, in this case, with the claims of the United States, or of Georgia, to that territory; we have only to examine the credentials of the member, and to see whether the Legislature, in conformity to the act of Congress, were authorized, or not, to send a delegate. If that act of Congress be unconstitutional, it must be repealed by the Senate and House; yet, as it now is, we are bound to but one decision on this subject. Mr. RANDOLPH.--He thought gentlemen did not treat the member from Georgia with due candor and respect. It should be remembered that Georgia had ever protested against the laws relative to the Mississippi Territory. It was the duty of that gentleman, as a member from the State of Georgia, to dissent; constructions might be put on silence. The United States had arrogated the power of governing that territory, at the same time saying that such assumption of power should not affect any claims of Georgia; but did not this very assumption of a right to govern, prejudge claims? We are told the commissioners are on the eve of settling the dispute; let us wait till this be accomplished. Mr. R. motioned that the committee rise. Mr. CLAIBORNE.--He thought it right in the gentleman from Georgia to dissent; it was to be expected; he did not rise to censure him. He did not conceive that any gentleman in the House wished, in this matter, to do any thing that would prejudice the interest or claims of Georgia. The assumption of a power to give laws to the Mississippi Territory arose from the necessity of the thing, and from benevolence to the inhabitants; he would not suffer an infraction of the constitution for the world; no, not to save a world. [The Chairman called him to order: the question was now on the committee's rising.] Mr. C. said he did not know but he might be out of order, but if he was, he believed others had been in the same situation. He wished to express his opinions on the subject in common with others. It should be considered that the delegate from the Mississippi territory would have no right to vote, but only to debate; he would be only a sting, but without poison. We ought, moreover, to oblige our brethren of that Southern hemisphere; we ought to hear their statements, attend to their wants, &c. Mr. DANA.--He was for the committee's rising. It had been usual to suffer the reports of the Committee of Elections to lie on the table, and if no protest or complaint were entered, nothing further was done with them, and the members kept their seats. In the case of the North-western and Indiana Territories, they were obliged to inquire, if it was the first time, whether there was a right to send a delegate; such is the situation now of the member from the Mississippi Territory; the records show their right to send, the report states that this delegate is duly chosen. Let the report lie on the table, and the member keep his seat. Mr. GRISWOLD.--He was not in favor of the committee's rising. It was extremely unpleasant to the delegate from the Mississippi Territory to remain in this situation; he himself claimed a seat in that House, not as a matter of favor but of right; and this House had not the power of depriving him of this right, without repealing the act of Congress establishing a government over that Territory. Some gentlemen have said that the rights of Georgia will be affected by the admittance of this member to a seat; such certainly could not be the case; if the claims of Georgia are at all affected, it is done already by act of Congress; yet, for his part, he did not consider the claims of Georgia as affected or injured. Nor ought we to wait the decision of the commissioners: that decision may take place in a month, and perhaps will not these six months. Mr. MACON.--There ought to be some petition or statement of facts presented by the member from Georgia, or some other person, to justify a discussion at this time, or to prevent the delegate from taking his seat. He wished his right and his credentials treated as those of any other member. He agreed with the gentleman from Connecticut, (Mr. DANA,) that it were better for the committee to rise, without leave to sit again; the member would then be entitled to his seat and his pay, till it should be shown that he has no claim to them. Mr. BAYARD.--He did not agree with the Speaker; the face of the report of the select committee gives sufficient cause for a decision of the Committee of the Whole. The gentleman from Georgia opposes the decision of the select committee; and it is due to the member from Georgia, and to the delegate, to have the opinion of the House--to have a prompt decision. The mere question is, whether he has been duly elected; not whether the Legislature of the Mississippi Territory had a right to elect him. Gentlemen have said we are prejudicing the claims of Georgia, that their rights are implicated in this step; they have said that the act of Congress establishing a government was an assumption of power; not so: by the Spanish treaty that territory was ceded to the United States; the inhabitants were without a government; they petitioned Congress for some form of government. What was to be done? The interposition of Congress arose _ex necessitate rei_. It was no assumption of power or assertion of claims. It was a necessary establishment of a temporary government, to continue while there was necessity. He was for an immediate decision. Messrs. RANDOLPH, DAVIS, BAYARD, S. SMITH, MACON, and GRISWOLD, continued the debate. The report of the select committee was agreed to. Mr. MILLEDGE wished the yeas and nays, even if he stood alone. They were taken, and stood, yeas 77, nays 8. TUESDAY, December 22. Another member, to wit, JOHN RUTLEDGE, from South Carolina, appeared, produced his credentials, was qualified, and took his seat in the House. TUESDAY, December 29. _Library of Congress._ Mr. RANDOLPH reported a "bill concerning the library for the use of both Houses of Congress;" which, after being twice read, was committed to a Committee of the whole House: Mr. RUTLEDGE in the chair. The bill provided that the members of both Houses, the President and Vice President of the United States, and the Judges of the Supreme Court, should have liberty to take any book from the library to read. Mr. SPRIGG moved, to add the Judges of the District of Columbia. He was supported in argument by Mr. DENNIS, upon the ground of the importance of the causes which this especial district would present, and the great expense and extreme scarcity of some most valuable and necessary law books. Mr. BAYARD objected to the motion, because he could discover no reason for distinguishing the judges of the district from others; but Judges of the Supreme Court being far from their libraries, required such references. He hoped the Congressional Library would never be subjected to the abuse which books used in courts of justice were too liable to. The motion was not agreed to. Some observations were made as to the time which the library was to remain open. Mr. GRISWOLD moved to confine it to the time of the session of Congress. It was carried, with an exception moved by Mr. SOUTHARD, in favor of the Judges of the Supreme Court, whose sessions do not accord with those of Congress. A blank was left as to the sum to be appropriated, in addition to the remaining part of the five thousand dollars heretofore appropriated, for the purchase of books. On the Chairman's asking the sum with which to fill the blank, Mr. RANDOLPH moved to strike out the sections, observing that, of that sum, not more than $2,200 had been used, and $2,800 remained unexpended. He entertained no doubt but Congress would aid the institution by every timely grant. WEDNESDAY, December 30. _Internal Taxes._ Mr. DAVIS moved the appointment of a committee to inquire into the expediency of repealing the acts imposing duties on stills and distilled spirits, on refined sugars, on sales at auction, and on pleasure carriages. Mr. DAVIS said his object, in making this motion, was, that the House should accomplish that directly, which had been this session attempted in so circuitous a way as to embarrass and delay its proceedings. He saw no reason for going into a Committee of the Whole, in order to arrive at decisions that might better be made directly by the House itself. On this motion a debate of considerable length ensued, in which, on the one side, the reference to a select committee, and on the other a reference to a Committee of the whole House was advocated. No decision was had, and of course the motion of Mr. D. was ordered to lie on the table. _Army Reduction._ Mr. BAYARD, during the course of the debate--in allusion to the adoption yesterday of the resolution of Mr. RANDOLPH for reducing the Military Establishment, which he thought premature, not considering the House as sufficiently acquainted with the details of the subject, to act upon it--said, that if gentlemen were for reducing the Army in whatever degree, or for abandoning it altogether, he should go with them. He would, on such occasion, be governed by the same principles which had hitherto guided him. He had heretofore been disposed to repose a liberal confidence in the Executive of the United States; and when an increase of our military force had been recommended by the President, he had invariably been for it; much more would he be disposed, when a reduction was recommended from the same quarter, to sanction it by his vote. With the Executive rested the responsibility of the exterior defence of the nation; and if the Executive was of opinion that the nation was secure with a force of three, two, or one thousand, or without even a single man, he would concur with him in giving effect to such a conviction. Mr. RANDOLPH was called up by these remarks. He had little thought that his motion, agreed to yesterday _sub silentio_, and without the least hesitation, would have been made the topic of such animated animadversion as he had heard to-day. He would tell the gentleman from Delaware, that his motion had neither been immature in substance, nor premature as to time. It would be recollected, that previous to its adoption, the Secretary of War had been called upon to furnish information to the House. He had furnished information, to his mind completely satisfactory. He had stated the establishment to be five thousand men; and his opinion that all the garrisons required only three thousand men. Could it, then, with any reason be called premature to act upon such information? If the gentleman from Delaware, or other gentlemen thought so, why not combat a decision at the time? Did they imagine that, without the expression of a murmur by them, the mover would himself rise and oppose his own motion? As to the delay which had been noticed, as having taken place in the transaction of business, it was not to be ascribed to any particular mode of procedure; but to the unusual languor of the season; to the absence of several members of great weight; to the augmentation of new members not yet fully acquainted with the forms of business, and to the unusual mass of information presented to the House, which enlarged the field of action, and to the delays of printing arising from the unusual quantity of matter submitted. _Internal Taxes._ Mr. BAYARD moved that the House resolve itself into a Committee of the Whole on the state of the Union, for the purpose of enabling him to offer a resolution to the following effect: "_Resolved_, That the Committee of Ways and Means be instructed to inquire into the expediency of repealing the laws laying duties on stills and distilled spirits, on refined sugar, on sales at auction, on pleasurable carriages, on stamps, and on postage of letters." Mr. BAYARD made this motion for the purpose of placing the important subject contemplated by it in a train for decision. He thought it full time to commence our proceedings upon it; and in his opinion, it was fit that the consideration of the subject, generally, should go before the Committee of Ways and Means. The subject was so important as to strike at the vital principles of our revenue. The repeal of the internal taxes involved a reduction of six hundred thousand dollars in our receipts. The propriety of such a reduction did not constitute a distinct subject for consideration, but depended upon the deductions made on a comprehensive view of our finances, which could only be taken by the Committee of Ways and Means, to whom was committed generally whatever regarded revenue. If the minds of gentlemen, said Mr. B., were made up to abolish all the internal taxes, it must be to them perfectly immaterial to what committee a reference was made. He knew the flattering prospects held out by the President, and he hoped they would all be verified. But his own mind was not made up, nor did he know that the minds of other gentlemen were made up on the propriety of dispensing with these taxes. He was led to this inference by observing no official notice to such effect in the communications made by the Secretary of the Treasury. On the contrary, the Secretary had so made his calculations, predicated as they were upon the continuance of these taxes, that his calculations would be greatly deranged by dispensing with them. Mr. B. knew not that we were prepared to leap this precipice. If the public burdens could be reduced, he would be delighted with the act of reduction. Yet still, if the sum of six hundred thousand dollars, derived from these taxes, could be dispensed with, doubts might be entertained whether the internal taxes were those which should be first either reduced or abolished. He held it to be a correct principle, that taxation should be equal, and that no one class of citizens should be burdened to the exemption of all other classes. From a slight consideration of the subject, he had found no other way of enabling our brethren to the westward to participate in the public burdens than by affording them an opportunity of paying their portion of internal revenue. It might appear, on investigation, that more substantial relief would be afforded to the various descriptions of our citizens, by continuing the internal taxes, and reducing those on imports; and if it should be thought proper to diminish the burden imposed on our western citizens, he would ask whether that effect would not be more substantially accomplished by reducing the tax upon salt? It would be recollected that great opposition had been made to the imposition of this tax, which had been denominated oppressive, as it fell upon an article of necessity. Attention ought, also, to be paid to the liability of several articles to be smuggled, the only mode of preventing which was well known to be a reduction of the duties. Mr. B. stated these circumstances, not as evidences of having matured his own ideas; but to show the necessity of referring the subject to a committee, whose special duty it was to take a general view of the resources and expenses of the nation, and who, therefore, in the present stage of the session, were alone in a situation to make the requisite inquiry. Mr. EUSTIS said that the reasons offered by the gentleman from Delaware were with him conclusive that this was not the proper time for considering the subject. Until we know the reductions in the expenditures of the Government that are to be made, it is impossible that we can say how far it will be expedient to reduce or abolish our taxes. We had not determined to what extent the Army or the Navy should be reduced, nor had we come to any ultimate decision on any reduction whatever. For these reasons he must oppose a decision at this time upon the subject, whether that decision was in this or any other shape. Mr. BACON concurred with Mr. EUSTIS in considering any decision as at present premature. Mr. RUTLEDGE viewed the subject as of great importance. He could not figure to his imagination one likely to occur this session of equal importance. The President contemplated a repeal of all the internal revenues, and the imposition of all taxes upon imported articles. The Secretary of the Treasury appears, by implication, to be of a different opinion, and contemplates a continuance of these duties. What is the object of the gentleman from Delaware? Why, delay; time for consideration, by reference of the subject to a committee most competent to inquire. As to the public burdens, every member on the floor had a common feeling. We do not wish to lay unnecessary taxes. But when taxes are laid, when they are uncomplained of, it was indeed deeply interesting without consideration to decide on their abolition. Mr. R. said, for himself, he should be embarrassed by being forced into an immediate decision. We want information before we are called upon to decide. The motion seeks that information. It sends the business to the Committee of Ways and Means, to whom it belongs of right. It is their duty to consider it, for whatever relates to revenue must go to them. Gentlemen cannot say that they are surprised. By the resolution, they are not called upon to decide upon the subject; they are only called upon to place it in a train for decision. Mr. MACON hoped the business would be taken up, and the sooner it was done, the better. It was certainly of great importance, and the earlier the House proceeded to consider it, the sooner would they be prepared for deciding upon it. If the vote of reference was final, the arguments of the gentleman from Massachusetts would apply. But this was not the case. It had been said that the President had declared his opinion that we can dispense with these taxes. The statement was not correct. His opinion was contingent. He had said, we may dispense with these taxes in case we proportionably reduce the expenses. As to the remarks made respecting the different opinions of the President and Secretary of the Treasury, they likewise were erroneous. Distinct views were taken by each. The President, contemplating a reduction in the expenses, intimates the expediency of repealing the internal taxes; whereas the Secretary of the Treasury, taking things as they are, states the effects of their continuance. From these circumstances, no diversity of opinion could be inferred. Mr. M. concluded by expressing a hope that the expenses of the Government would be reduced, that the internal taxes would be taken off, and that immediate measures would be pursued for preparing the House for a final decision. Mr. EUSTIS was alike hostile to the present motion and to that which had been made by the gentleman from Kentucky, who had yesterday introduced the subject. He had heard the motion with a sensation of uncommon surprise; for he was of opinion that the public attention should not be attracted, or the public sensation excited, till we should be able to determine the course proper to be pursued. He felt himself unprepared to decide, and believed other gentlemen were equally unprepared. He hoped that he cherished a suitable respect for the President of the United States, though he did not know that he would go so far as the gentleman from Delaware, and disband a whole army at his word. The wisest course was to wait until information was obtained. This would in fact be gaining time. If the Committee of Ways and Means were to consider the subject, it must be under the present state of things. They could not take for granted what might or might not be done by Congress; and before Congress could decide, they must have information which they do not yet possess. He who, under present circumstance, attempted to say to what length our retrenchments would go, and what taxes we could spare, might indeed be called a prophet. We ought not, said Mr. E., to stir the public sensibility improperly or prematurely. By exciting that sensibility before we had determined how to act in future, impressions may be raised which we shall not be able to satisfy. Mr. SMILIE concurred in opinion with Mr. E., and moved, as the best mode of disposing of the subject, that the committee rise. Mr. GRISWOLD declared himself against delay. He knew not why the House were not prepared to decide immediately. The President had introduced the subject, and if any sensibility had been excited, it must be ascribed to him, and not to us. Nor did he think that any ill effects would flow from attracting the public attention. The President did not know, when he addressed us, that we would be for a reduction of the expenses; yet, thinking as he did, it was highly proper in him to give his opinion to the House. So proposed to us, it would exhibit a want of respect to that Magistrate not to take it up immediately. Not to act upon it promptly would be subversive of the national tranquillity after the attention of the public had been directed to it. Mr. SMILIE had thought the gentleman from Connecticut was too well acquainted with the proceedings of that House to say that the Committee of Ways and Means were prepared to act upon this subject. Did they know how far we would reduce the Army, the Navy, or the Judiciary? Mr. VARNUM hoped the committee would rise. Any disposition of the subject was at present premature. As to the calculations of the Secretary alluded to, they were made from the existing revenue, and all his deductions were made therefrom. The President had taken another view of the subject. Contemplating the probability of a reduction in our expenses, he had stated that, in such event, we could dispense with the internal taxes. But whether the contemplated reduction could be made, the House were not prepared to say. Of one thing he was sure, that not a single necessary tax would be abandoned. Mr. DANA said, that more than three weeks have elapsed since the President's communication has been laid before us, and, during that time, a sense of decorum has not induced us to take up one of the most important parts of it. He certainly agreed with gentlemen that we ought to take up the subject and decide for ourselves. If we concur with the President, we shall repeal the laws; if we do not concur, we may, it is true, risk our popularity by opposing so favorite a measure with the people. But placed as we shall be between popularity on the one hand, and duty on the other, as honest men we should do our duty. But certainly it is our duty now to examine the subject. Grant that the reduction in our expenses may extend to a million, though scarcely half that sum could be hoped for; still the question remains what taxes shall be diminished. He could not, for his part, feel all that horror of public sensibility that had been portrayed by the gentleman from Massachusetts. What have we to fear, suppose we interfere with that sensibility? If we do so in the discharge of our duty, he was perfectly willing it should be excited; nay, it would be useful to the people themselves. Mr. EUSTIS was perfectly ready to meet the public sensibility, whether for or against us. We had already tried it both ways. He was much pleased with the respect professed by gentlemen for the public sensibility, and also for the communications of the President. But there were parts of those communications, which, notwithstanding the impatience of gentlemen, they would not be displeased at laying unacted upon, not merely three weeks, but three months. Mr. BAYARD did not expect an opposition to his motion from the quarter from which it came; for he had a right to expect as much deference to the President from the opposite, as from his own side. For his part he felt no terrors at meeting the whole, or any part of the President's communications. Whatever he recommended that was right, he would vote for, and whatever was wrong, he would oppose. Though his former habits had led him to cherish a respect for the President, of which he did not repent, yet he felt no servility that would lead him to repress an expression of his sentiments. A gentleman from Pennsylvania had talked about reducing the Army, the Navy, and the Judiciary. But there were other expenses which the gentleman might have dwelt on. Why silent on the Legislature? Let us reduce the length of our sessions. It did not appear consistent in that gentleman to strike at the Judiciary, and other departments, and leave untouched whatever affected himself. Mr. RANDOLPH did not desire to occupy much of the time of the committee, as he thought it immaterial whether the committee rise or not. But he wished, for the information, and perhaps for the satisfaction, of the gentleman from Massachusetts, to state that, among other members, he was one who had not decided whether Government could dispense with the internal taxes. He hoped, and was inclined to believe, that they might be dispensed with. The Secretary of the Treasury had expressly stated that part of his report was speculative, viz: that part which inferred the effects of peace. The correctness of the opinion of the Secretary on this point must decide the House as to the propriety of giving up these taxes. He was one who, though he did not think a state of peace would materially affect the revenue, had not decided whether a reduction of the public impositions in this or that species of revenue should be made. He noticed these things, to prevent an impression being made on the public mind that the House were for precipitating a decision. As to the public sensation, he felt no alarm. He knew that our measures must depend upon the reductions we shall make. Mr. R., for these reasons, was against any decision now; and had the gentleman from Kentucky pressed his motion yesterday, he was prepared to move a postponement of it. In the mean time, there were other important topics involved in the Message that might be referred and acted upon. Mr. DANA presumed that the honorable gentleman from Massachusetts had done him the honor of alluding to him in his remarks. He was not very solicitous that the subject should be inquired into, but since it was brought up, he must say that nothing short of the talents of the honorable gentleman could furnish a semblance of reason for not going immediately into the inquiry. That gentleman errs egregiously, if he imagines that I can dread an investigation of any point involved in the President's Message. He would add, that whatever his particular opinion might be of the person to whom had been confided the Government of the nation, it became him only to see in him the First Magistrate of the country, and to treat him with correspondent respect, and to see in what he did, not the man, but the measure. The question was then taken on the committee rising, and lost--yeas 29, nays 48. The reference to the Committee of Ways and Means was then carried, both in committee and in the House, without a division. The House adjourned till Monday. MONDAY, January 4, 1802. WILLIAM BARRY GROVE, from North Carolina, appeared, produced his credentials, and took his seat in the House. _Ordered_, That Mr. MILLEDGE be appointed to the Committee of Ways and Means, in the room of Mr. DICKSON, who is sick and unable to attend. _Judiciary System._ Mr. RANDOLPH moved that the House should go into a Committee of the Whole on the state of the Union, with the view of submitting three resolutions to the committee, viz: "_Resolved_, That it is expedient to inquire whether any, and what, alterations should be made in the Judicial Establishment of the United States. "_Resolved_, That provision ought to be made for the impartial selection of juries. "_Resolved_, That it is expedient to inquire whether any, and what, reductions can be made in the civil expenses of the Government of the United States." The House accordingly went into committee. Mr. BAYARD presumed an agreement to these resolutions would, in their present shape, meet with no opposition. It was impossible to determine what shape they would ultimately assume. The Judiciary system was doubtless susceptible of amendment, and if any proper amendments should be proposed, he would concur in their adoption. With respect to the second resolution, though he did not know that there was any necessity for altering the mode at present practised of selecting juries, not having heard of any complaints under it, yet, as the resolution only led to an inquiry into the subject, he would not object. With regard to the last resolution, it was one in which we must all concur. The object, if attainable, would be extremely grateful to all of us. The three resolutions were agreed to without a division. The committee then rose, and reported them to the House. On the report being taken up, Mr. RANDOLPH moved that the consideration of the two first resolutions be postponed till the third Monday of January. Mr. BAYARD hoped the motion for postponement would not prevail. The propositions were abstract ones, leading to inquiry, and the sooner they were acted upon, the better. The mode pursued by the gentleman from Virginia, if his simple object was to give notice, was the least happy that he could have devised, for it gave to gentlemen no opportunity to prepare themselves, as they were totally unacquainted, in the present stage of the business, as to what would be the alterations proposed. If a committee were now appointed, they would have time to deliberate on a subject of the utmost importance--one so complicated as to require great attention. When their report was made, he would be one of those who would ask from the candor of the House time to consider it. Mr. RANDOLPH said, he was at all times willing to accommodate gentlemen of every political description on proper occasions. Apprehending that his resolutions, if taken up in the House, would give rise to discussion, he had moved for their postponement, from a wish not to interfere with the desire of the gentleman from Pennsylvania, and other gentlemen, to act on the apportionment bill. As his motion for postponement appeared likely to be itself productive of discussion, by which the time of the House would be exhausted, and the means he used defeat the end he had in view, he would withdraw his motion. The House then agreed to the resolutions without a division. Mr. RANDOLPH moved the reference of the two first resolutions to the same committee. He said, in reply to the gentleman from Delaware, that he made the motion respecting juries not because any complaint did at present exist of the exercise of the powers under which jurors were selected, but because they had not long since existed, and because in similar circumstances they might again exist. He was glad the gentleman from Delaware had no reason to complain of their present abuse. But this was no security against the future. Mr. BAYARD said, that he had spoken as he had done, not for the purpose of expressing any opinion that any abuse respecting juries had been recently removed under the present state of things; but to state that he had never heard of any complaints on this subject in the part of the Union from which he came; and he had particularly alluded to the mode of designating jurors in his State, which was by ballot. But if there were complaints in other parts of the Union, he would co-operate in any means that could be devised for removing them. Mr. SMILIE said, that since the gentleman from Delaware had introduced the subject, and had declared that no complaints existed, he would say that complaints had existed, that just grounds for them existed, and that they had been expressed in the loudest tone. And he would appeal to the gentleman from Delaware whether any man could be safe who was at the mercy of a marshal, who was the mere creature of the President. Mr. BAYARD.--While man continues as he is, there will be complaints on this subject. We are divided into parties. The people, as well as the President, must belong to one side or the other; and whether we have sheriffs chosen by the people, or marshals appointed by the President, the evil will still exist. He had no objection, if it were the wish of gentlemen, that the marshals should be appointed by the people; though we know that the people are as apt, nay more apt, to be infected with violent political feelings, than an Executive officer. Mr. RANDOLPH said, that without desiring to exhaust the time of the House on a point where there was no difference of opinion, he could not permit the observation of the gentleman from Delaware to pass unnoticed; that an officer, holding a lucrative office, appointed by the President, and dependent upon his will, is as independent as a sheriff, elected in some States annually by the people, and in other States appointed in a manner calculated to ensure his independence. He would instance the State of Virginia, in which the sheriffs were nominated by the justices of the county courts, who, it was understood, were to hold the office of sheriff in rotation. Will the gentleman say that these men, who are independent of the pleasure of any man, are liable to be made the same tools, with officers who hold their appointments at the absolute will of one man? Mr. R. would further say, that the remark of the gentleman from Delaware, that the existence of no complaints had ever come to his ears, had excited his extreme astonishment. In North Carolina, he believed, no legal jury had been selected since the establishment of the Federal Government. In that State, in the State courts, all juries are first selected in the inferior courts, and then sent to the superior courts. He would ask, how, under these circumstances, a jury could be struck in a federal court in that State agreeably to law? In Virginia and Pennsylvania, the independence of sheriffs is secured; therefore, no restrictions are imposed upon them in selecting juries; whereas, in the federal courts the marshal is the abject creature of the Executive--and yet we are told the security is the same! Mr. R. did not wish to consume the time of the House; but when views are taken by gentlemen calculated, either as to fact or sentiment, to lead the public mind astray, if other gentlemen did not, he would invariably notice them. Mr. BAYARD desired to explain. He had not meant to contend that sheriffs chosen for three years by the people were as dependent as similar officers appointed by the President. He had alluded to the effects which flowed from a marked division of parties. We were in all events subject to that evil. It was a truth that men deeply infected with party were more apt to be chosen by the people than by an Executive magistrate; because the people felt more strongly a degree of political fanaticism. After some further debate, it was determined to refer the two first resolutions to a committee of seven, and the last to a committee of five members. _Ordered_, That Mr. NICHOLSON, Mr. JOHN TALIAFERRO, Jr., Mr. GODDARD, Mr. RUTLEDGE, Mr. ISRAEL SMITH, Mr. HENDERSON, and Mr. BAILEY, be appointed a committee, pursuant to the first and second resolutions. _Ordered_, That Mr. BACON, Mr. GROVE, Mr. ELMENDORPH, Mr. HEMPHILL, and Mr. ABRAM TRIGG, be appointed a committee, pursuant to the third resolution. TUESDAY, January 5. _Apportionment Bill._ On the question being taken for striking out thirty-three, it was lost--yeas 42, nays 48. Mr. DENNIS moved to strike out eight, the number of Representatives allotted to Maryland, and insert nine; which amendment had been rendered necessary by the supplementary return received from Maryland. On this motion a very desultory debate took place, which was twice interrupted by motions for the committee to rise, which were both lost. Much personal recrimination, chiefly on the charge of delay on the one side, and precipitation on the other, was exchanged. The amendment was at last agreed to--yeas 57. The committee then rose and reported the bill as amended. The House immediately took up the report of the committee, agreed to the amendments, and ordered the bill to be engrossed for a third reading to-morrow. THURSDAY, January 7. _Stenographers._ The House went into Committee of the Whole on the standing rules of the House. Mr. LEIB moved the addition of the following rule: "The Speaker shall assign such places to the stenographers on the floor, as shall not interfere with the convenience of the House." Mr. LEIB prefaced his motion, by observing that, in the standing rules proposed, no provision appeared to be made for the admission of stenographers. They had heretofore been subject to the will of the Speaker. However great his respect for the present Speaker, he was of opinion, that they should not depend for their accommodation upon the will of any man; and he thought it became the House, on this occasion, to establish a precedent which would place those who took the debates above the caprice of any individual. Mr. HUGER moved to amend the motion so as to read as follows; "Stenographers shall be admitted, and the Speaker shall assign to them such places on the floor as shall not interfere with the convenience of the House." Mr. LEIB agreed to this modification. The motion was opposed by Mr. GRISWOLD, Mr. RUTLEDGE, Mr. VARNUM, Mr. HEMPHILL, Mr. T. MORRIS, Mr. EUSTIS, Mr. DANA, Mr. ELMER, and Mr. GODDARD; and supported by Mr. LEIB, Mr. S. SMITH, Mr. NICHOLSON, Mr. CLAIBORNE, Mr. SMILIE, Mr. HOLLAND, and Mr. SPRIGG. Mr. HUGER opposed the original motion of Mr. LEIB, but supported the motion, as amended by himself. The opponents of the motion declared, that it did not relate to substance, but merely to form; that it was allowed on all hands, that the debates should be taken, and that stenographers should, consequently, be admitted. But the single question was, how, and under what authority, they should be admitted. They remarked, that they had heretofore been admitted by the Speaker, under whose direction they had remained; that the Speaker was the only proper authority under whose direction they ought still to remain; that, as the preservation of order and decorum rested with him, the stenographers, as well as other persons, should be permitted by him to enter the House, and be by him excluded, whenever, in his opinion, the order and a respect for the House required it. That, in case stenographers deported themselves in a disrespectful manner, or grossly misrepresented the ideas of members, the Speaker was the only person who could effectually cure the evil; that there had been, and might again be, instances of such misconduct; that, in one case, a stenographer had entered the House in a state of intoxication; another case, a speech of a gentleman from South Carolina, had been perversely misrepresented, and the stenographer had refused to correct his errors, for which he had been expelled the House; and that, in another case, the Speaker, considering himself as misrepresented, had expelled the stenographer. Among the opponents of the motion, a great diversity of opinion prevailed. Mr. EUSTIS, Mr. VARNUM, and Mr. ELMER, objected to it, merely on the ground that it was improper to come to any solemn decision, which was the less necessary, as the stenographers already occupied convenient seats, from which there was no probability of their being extruded by the Speaker. Those who supported the motion, considered its decision as involving an important point; a point no less important, than, whether the debates of that House should be taken with accuracy, and published without fear or partiality. They averred it as a fact, that, owing to the unwarrantable conduct of the Speaker, this had heretofore, at many periods, not been the case. The public had sought information without being able to get it. It was true, that a stenographer had been expelled for publishing a speech of a gentleman from South Carolina; but it was not for misrepresenting that speech, but for faithfully publishing it; and in the other case alluded to, a stenographer had been expelled by the Speaker, for stating, with correctness, what the Speaker had himself said. These were alarming facts, not to be forgotten, and which claimed the interposition of the House. If stenographers should be guilty of indecorum, they could still (this rule notwithstanding) be expelled the House. It was acknowledged that the gentleman who at present filled the chair, was entitled to the full confidence of the House, but it was dangerous to vest arbitrary power in the hands of any man, and it was peculiarly proper to provide in fair, for foul weather; and it was added, that though the proposed rule would not be obligatory upon a future House, yet it would form a precedent, which they might see fit to respect. The motion, as modified by Mr. HUGER, was then agreed to--yeas 47, nays 32. The committee then rose, and reported the rules with the above amendment. The amendment was immediately taken up; when Mr. RUTLEDGE moved to amend the report of the committee, by making it read as follows: "Stenographers may be admitted under the direction of the Speaker, who shall assign to them such places on the floor, as shall not interfere with the convenience of the House." On this amendment a further debate ensued; after which, the yeas and nays were called, and were--yeas 27, nays 51. Another motion was then made and seconded to amend the said amendment, by inserting after the words, "stenographers shall," the following words, "until otherwise ordered by the House;" And, the question being thereupon taken, it passed in the negative. And the main question being put, that the House do agree to the amendment for an additional rule, as reported from the Committee of the whole House, it was resolved in the affirmative--yeas, 47, nays 28. _Resolved_, That this House doth agree to the said standing rules and orders, as amended. MONDAY, January 11. Another member, to wit, SETH HASTINGS, from Massachusetts, produced his credentials, was qualified, and took his seat in the House. _Mediterranean Trade._ Mr. RANDOLPH moved a resolution directing the Secretary of the Treasury to lay before the House an estimate of the value of the exports of the United States, for the last five years, to ports situated within the Straits of Gibraltar, discriminating articles of American growth from other productions. Mr. RANDOLPH observed that he was aware of the inability of the Secretary to distinguish precisely the exports of the United States, carried to the Mediterranean ports of France and Spain, from those carried to their other ports. But still he thought it probable that the Secretary might be able to furnish information that would be valuable. Mr. S. SMITH said, that when the report was made by the Secretary, it would be a report of deception. A great part of our trade to the Mediterranean had been lopped off in consequence of the war. Mr. SMITH afterwards remarked that, on the report being made, he feared the inquiry would be, whether we should give up the protection of the Mediterranean trade, or not. Gentlemen would probably go into a calculation of figures; and if the expense of protection appeared to be greater than the benefit of the trade, they might be for withholding protection. There was one description of trade to the Mediterranean, which we could obtain no estimate of, which was however very important--the tonnage of American shipping employed in going from European ports to the Mediterranean, and from the Mediterranean to European ports, and American shipping employed between the East Indies and the Mediterranean. This trade the Government was as much bound to protect, as it was bound to protect the landed interest of the country. Still, Mr. S. knew not that it would be proper to oppose the passage of a resolution that asked for information. Mr. SMILIE knew not what information we could receive; but he knew that whatever it should be, it could do no harm. Mr. NICHOLSON remarked, that the House would not be in a worse situation after the report, than it was now. For himself, he was in a state of total ignorance, and he believed a large part of the House was also ignorant of the extent of our Mediterranean trade. It was impossible that the House could be deceived by the report; as, if any part of it should be calculated to deceive us, his colleague would be able to detect its errors. He had heard, and that too from commercial men, that our Mediterranean trade was not valuable, and not worth the expense of the squadron fitted out to protect it. He was at a loss to decide between these opinions and those of his colleague. Mr. MITCHILL spoke in favor of the resolution. Mr. GRISWOLD had no objection to obtaining the estimate, if desired by gentlemen; not that he supposed the report could present the information that was desired. With regard to our Mediterranean trade, it was well known, that lately, owing to our contest with Algiers, our fish and oil went in European bottoms, which could not be noticed in the Treasury statements, as they went first to other ports. Mr. EUSTIS was perfectly willing to obtain the report, that the great increase in our trade to the Mediterranean should be seen; from which its great value would fully appear, and its claim to encouragement. Mr. VARNUM suggested the propriety of a reference to a select committee, which, from the documents before the House, could select the desired information. Mr. RUTLEDGE feared, that the call for this information would delay the passage of an important bill before the House for the protection of our Mediterranean commerce. He hoped, in order as promptly as possible to obtain information, the Secretary of the Treasury would be called upon for it. With respect to the protection of our trade in the Mediterranean, it was, in his opinion, unimportant what its extent was. We were bound to protect the commerce of our citizens in all its ramifications, whether great or small. The resolution was then agreed to. THURSDAY, January 14. Another member, to wit, JOHN DAWSON, from Virginia, appeared, was qualified, and took his seat in the House. WEDNESDAY, January 20. _Military Peace Establishment._ The House then took up the amendment to the bill fixing the Military Peace Establishment. Mr. BAYARD moved to strike out the office of Brigadier General. He said there could not be any occasion for such an officer, as the men were scattered over the whole extent of our frontiers and Atlantic coast, and placed in small divisions. This brought on a debate which was continued until after three o'clock. The question was taken by yeas and nays for striking out--36 against it, 54 for it. Mr. BAYARD moved to strike out the office of colonel, and add one to the number of majors; but it was not agreed to. The bill proposed to give those officers who should be deranged, three months' pay when they were dismissed from the service. Mr. GRISWOLD moved to strike out "three months," that a greater compensation might be given to those who have grown gray in the service of their country. He thought more was due to them than what the bill proposed to allow. Mr. VARNUM said, his own opinion was in favor of a greater compensation; but he owed it to a majority of that House, to yield his opinion to what they had fixed it at. He said there was nothing due to those officers, as nothing had been promised them. Mr. MITCHILL was in favor of striking out, for the purpose of inserting a compensation proportionate to the length of time the officers had been in service. Mr. BACON differed as to the principle laid down by gentlemen. When officers were wanted, there was great competition for the appointments. They were desirous to receive the pay and emoluments. He did not think there was any thing due to them. Mr. S. SMITH was for pursuing some system in this business, and keeping to a uniform principle. When a reduction was made in 1796, six months' pay and subsistence was granted. He would be in favor of that at this time. Mr. DANA believed those officers accepted their appointments under an idea of its being the permanent Peace Establishment, and therefore something was due to them when dismissed from the public service. Mr. SMILIE said, they knew the terms on which they entered the service, and they entered voluntarily. How could any thing, then, be due to them? It would be more proper to give the men something when disbanded than to provide for the officers. It was not long since that about forty were wanted, and there were thirteen hundred applications. Men could not always be obtained. When the ten regiments were ordered to be raised, the officers were soon obtained; but, after recruiting a long time, the proper number of men could not be procured. The question for striking out was taken by yeas and nays--for it 26, against it 56. Mr. S. SMITH made a motion to raise it to the same as was granted in 1796. Mr. EUSTIS advocated it, but it was not carried, there being 26 for it, and 45 against it. The bill was ordered to be engrossed for a third reading to-morrow. THURSDAY, January 21. _Military Peace Establishment._ An engrossed bill fixing the Military Peace Establishment of the United States was read the third time. Mr. BAYARD observed that he should vote for the bill, because he thought it better than the former system, and it would be of much saving as to expense. He was, however, very far from being pleased with a part of that bill, that part relating to the Brigadier General and his aide-de-camp. This office he knew to be a perfect sinecure; no such officer was necessary; he could have no duties to perform. He would not, however, vote against the whole bill on account of this. Mr. RUTLEDGE.--The first section was very disagreeable to him, as it went to the establishment of a perfect sinecure. He was willing to do homage to the merit of the officer who was to benefit; but he rather thought it would be more consonant with justice, if money must be needlessly sported with, to suffer such money to be given to those who have been long in service--some fifteen or twenty years--and who are now by this bill suddenly forced to quit their present, to seek some new way of obtaining a livelihood, in circumstances, many of them perhaps, not enviable. Mr. R. was not pleased with the so great reduction of the artillery; he thought the retention of the artillery of more importance than that of the infantry. He had hoped the artillery would have been retained to keep in order the forts already built in different parts of the United States; the small number remaining was quite incompetent to preserving them in order, or preserving them from decay. The Secretary of War mentions one fort in South Carolina. There are, sir, four forts in the harbor of Charleston alone, some of which must go to decay. He should vote for the bill because it went to make great reductions of expense, which reductions circumstances now allow us to afford; but the sinecure was obnoxious to him, and he was not pleased with the reduction of the artillery. On the question that the bill do pass, it was resolved in the affirmative--yeas 77, nays 12. _Mediterranean Trade._ The House again resolved itself into a Committee of the whole House on the bill for the protection of the commerce and seamen of the United States in the Mediterranean and adjoining seas. Mr. BAYARD offered an amendment, the purport of which, was to give to the President the power of granting letters of marque and reprisal, to affect Algiers and Tunis as well as Tripoli. Mr. B. thought that it would be unsafe to neglect a cautionary step like this, because there was great danger, from the similarity of religion and manners, of a union taking place between Tunis, Algiers, and Tripoli; they may be brought into the war with Tripoli against us. It would be a matter of prudence to be prepared. Mr. DANA thought it very probable that further information would be received from the Barbary powers, when we shall be the better enabled to judge what will be expedient. He did not like the appearance of the amendment; it seemed to invite war. Mr. BAYARD considered there was a great difference between the Barbary powers and civilized nations; it was on account of the perfidiousness of those powers, that he wished it left to the direction of the President to exercise the power vested in him when he should think proper; there was no trusting to them. He wished the President to do this by the authority of law; this would prevent those doubts that have been expressed by some, of the constitutionality of his measures the last spring and summer; though for his part he was disposed to approbate the proceedings of the Executive on that occasion. As to its having the appearance of threatening, he did not think so; nor did he believe it would have any effect on those powers; he hardly believed that the Dey of Algiers ever read the acts of Congress. Mr. DANA was opposed to considering the subject at present; he was for postponing till further information should be received. Mr. GILES was against the amendment; he thought it had the appearance of inviting them to an attack, of challenging them to combat, of irritating and provoking them: he believed there would be ample time to act on this matter hereafter, when they would have a better knowledge of circumstances, and of what to expect. Mr. BAYARD said he was by no means disposed to withdraw his motion. You are at war with one of these nations; the others are connected with them by their religion and habits, by their government some, and by their interest more. I have been told that there is no connection between my amendment and the bill; but I am confident there is the same connection that there is between Tripoli and the other powers; and it is proper to extend the bill so as to embrace Tunis and Algiers, as well as Tripoli. The gentleman from Connecticut (Mr. DANA) says there are no doubts on his mind but that the President has a constitutional right, as the Commander-in-chief of the army and navy, to do as he has done; but it should be remembered that many have doubts; and why should the gentleman be opposed to this amendment, which will preclude all doubt on the subject. The amendment was not carried. _Direct Taxes._ The House then went into a Committee of the Whole on the bill for amending the act for laying and collecting a direct tax. The first section repeals the thirteenth section of the act of 1798, which prescribes that lands on which taxes remain unpaid for one year, shall be sold subject to the right of redemption within two years after sale. Mr. RANDOLPH stated that the provisions proposed to be repealed were unsusceptible of execution, inasmuch as the expenses of advertising required, exceeded in many cases by four or five times, the amount of the tax, and which exceeded the per centage allowed; and inasmuch as no person would buy the land offered for sale, when he might be deprived of it by a redemption within two years. Documents were read which substantiated this statement. Mr. S. SMITH opposed the repeal, as going to deprive the owners of lands of the right of redemption; which he deemed a valuable provision; without which the owners of land, particularly non-residents, would be deprived of their property, without a knowledge of the tax imposed, or being able, however desirous, to pay it. Mr. RUTLEDGE also opposed the repeal, as imposing hardships upon those who have not paid the tax, which were not imposed upon those who have paid. He further stated that the non-payment in the Southern States had arisen, not from indisposition to pay, but from want of collectors to carry the law into execution; the compensation allowed having been so inadequate as in many districts to have disabled the Government from obtaining officers. Messrs. GRISWOLD, MILLEDGE, STANLEY, and MORRIS, delivered their sentiments against the first section; when, on motion of Mr. MACON, the committee rose, and asked leave to sit again, which was granted. FRIDAY, January 22. Another member, to wit, ROBERT WILLIAMS, from North Carolina, appeared, produced his credentials, was qualified, and took his seat in the House. MONDAY, January 25. _Import Duties._ Mr. NICHOLSON called up the resolution he laid on the table on Friday, for instructing the Committee of Ways and Means to report generally on the subject of impost duties. Mr. LOWNDES wished to amend it so as to direct the attention of that committee particularly to the articles of salt, brown sugar, coffee, and Bohea tea. This the SPEAKER considered out of order, as resolutions on those subjects were then before the House. Mr. RUTLEDGE and Mr. BAYARD wished to withdraw the resolutions they had offered on the articles of salt, brown sugar, &c. Mr. SPEAKER considered the resolutions in possession of the House, as they had been debated, and the previous question taken on them, and no motion could be made while another motion was pending. Mr. BAYARD asked for information whether it was in order for him to state that he withdrew his resolution? Some conversation took place as to points of order. The question on the resolution was called for. Mr. DANA said there was no instruction given to the committee by the resolution of December 13, to make a report on the subject of imposts and tonnage. He was pleased to see this resolution moved by the gentleman from Maryland, as it showed his belief to be that the subject was not referred to the committee. Mr. DANA expressed his wish that two things should be referred to the Committee of Ways and Means: First, a general view of the duties of imposts and excise that they might be contrasted; and, secondly, that certain articles should be specifically referred to them. Mr. NICHOLSON said the gentleman from Connecticut was very much mistaken as to the object of his resolution. It was not that he did not think the subject before the committee, but as so much had been said about the former general reference, he wished to prevent the gentleman from Connecticut from quibbling respecting the reference. [Here Mr. N. was called to order by Mr. GRISWOLD. The SPEAKER declared it as his opinion that the gentleman was in order. Mr. BAYARD appealed to the House, and called the yeas and nays, which were agreed to be taken.] _Internal Revenues--Expenses of collection compared with Custom House Duties._ Mr. BAYARD called up the following resolution, which he had some days previously laid upon the table, viz: "_Resolved_, That the Secretary of the Treasury be required to lay before this House an account, in detail, of the expenses incurred in the collection of the internal revenues of the United States; distinguishing, where the same may be practicable, the expenses attending the collection in each branch of the said revenue, and, also, an estimate of reduction of said expenses which may conveniently be made." The resolution having been read, Mr. B. said: As it is extremely possible, Mr. SPEAKER, that it is designed that this resolution shall share the same fate with that which the resolution of the gentleman from New York experienced this morning, I shall be allowed at least by publicly stating, to justify to the world, the motive which induced me to bring it forward. [Mr. B. alluded to a resolution offered by Mr. T. MORRIS, the object of which was, to direct the Secretary of the Treasury to state to the House the amount of stamp duties collected in each State, distinguishing what part was paid by the commercial cities. When the resolution was taken up there was a call for the question. Nothing was said against the propriety of it. It being merely a call for information, and considered so much a matter of course to agree to such resolutions when no opposition was made to them, it was not supposed necessary to say any thing on the propriety and reasonableness of the resolution. Yet, to the astonishment of its friends, when the question was put, there were for it 34, against it 54.] Gentlemen are infinitely deceived, said Mr. B., if they think our object is, by any particular mode of proceeding, to gain an unfair advantage of public opinion. If such a suspicion be entertained, our conduct has been viewed with a jaundiced eye. It is a motive which never has, and I hope never will direct our measures. If popularity is to be gained only by a prostitution of principle to ignorant and unthinking prejudice, we are content to forego it. I am far from being indifferent to public opinion; the approbation of our fellow-citizens is the only reward we can expect for our services; but it is a reward no honest man will seek, if it is to be acquired only by artifice and deception. I have avowed and avowed sincerely, that I am disposed to go hand and hand with gentlemen in the reduction of public burdens. When it was necessary I assisted in imposing them--now that circumstances permit I more cheerfully co-operate in taking them off. My true object is to make the most of our situation; not to be deluded by empty theories, or speculative systems, but, by an enlarged view of the various interests of the country, to discover by the reduction of what taxes the society would be the most substantially benefited. The reduction of the Military Establishment creates considerable savings; other retrenchments are contemplated in the Navy and civil administration. These savings enable us to dispense with certain taxes; but is it not wise to examine diligently the operation of the several taxes which exist, and, after being informed by the various views which belong to the subject, to exonerate the community from those which, with the least benefit, are the most burdensome? One great objection to the internal taxes is the expense of collection. I wish to know the particulars of this expense in order to see whether it may not be curtailed. I wish also to be informed of the expenses attending each branch of the revenue, for the purpose of judging whether it may not be expedient to retain some branches, while it may be wise to part with others. These are my objects; do they not entitle us to the information asked? We know in one instance, that the expense in collecting the stamp duty is less than five per cent. This appears by the report of the Secretary of the Treasury; but we are not informed of the particular expenses belonging to the other branches of the revenue. Sir, said Mr. B., I must rely that the resolution will be agreed to; there is not a precedent in our annals or opposition to such a resolution; if, however, one is now to be introduced, I think it proper that the names of those gentlemen should hereafter appear by whom it was resisted, and by whom it was established. He therefore hoped the question would be taken by yeas and nays. The Clerk, at the request of Mr. RANDOLPH, read an extract from the report of the Secretary of the Treasury, as follows: "It will appear by the same statement, [M,] that while the expenses of collection on merchandise and tonnage, which are defrayed out of the revenue, do not exceed four per cent., those on permanent internal duties amount to almost twenty per cent. This, however, is an inconvenience which, on account of the great number of the individuals on whom the duties are raised, and of their dispersed situation throughout the whole extent of the United States, must, more or less, attach to the system of internal taxation so long as the wants of Government shall not require any considerable extension, and the total amount of revenue shall remain inconsiderable." Mr. T. MORRIS.--If the honorable gentleman from Virginia (Mr. RANDOLPH) thinks that the extract of the report of the Secretary of the Treasury, the reading of which he has called for, furnishes the information demanded by my honorable friend from Delaware, he is mistaken. The Secretary's report gives you a general estimate of the expense of collecting the aggregate of the internal taxes, but does not specify the charge falling on each separate tax. From the statement exhibited by the Secretary, it appears that it costs twenty per cent. to collect the whole of the internal taxes; but if the detailed statement asked for by the gentleman from Delaware is furnished, it will appear that the collection of some of those taxes does not cost more than five or six per cent. To show how unfair it is to connect together the expense attending the collection of all the internal taxes, I need only refer gentlemen to an authority which I believe they will not dispute. If my memory, sir, is not very incorrect, it will appear by a publication of the present Secretary of the Treasury, written in the year 1796, that the tax on country distilleries cost in its collection near thirty per cent.; that on city distilleries about nineteen. These, sir, and other reasons, may evince the propriety of repealing the tax on country distilleries; but because this tax is expensive in its collection, because it may be liable to objections, does it follow that other taxes, such as the tax on carriages, on refined sugars, &c., which fall on the rich, and which are not expensive in the collection, does it follow, I say, that because it may be proper to repeal the first, that these are to fall too? It is, sir, in order to be enabled to make proper discrimination, to be enabled to know which of these taxes ought to be repealed, and which retained, that the gentleman from Delaware has moved his resolution. And here, sir, let me be permitted to express a hope, that the resolution now before you may not meet with the silent negative which was the fate of one intended also to procure information, and which I had the honor of laying on your table. I did and do still believe, sir, that the majority of this House could not have been actuated by proper motives in refusing that information. [Here Mr. RANDOLPH called Mr. MORRIS to order, saying that he had no right to impeach the motives of members. Mr. M. observed that for his part he was at a loss to know what was considered disorderly in that House, but that he would submit to the correction of the Chair. The SPEAKER determined him to be in order, and Mr. M. proceeded.] With regard, sir, to the course of proceeding which gentlemen have lately adopted, persevering in an inflexible silence, rejecting every proposition made by a member in the minority, without deigning to show its fallacy, refusing public documents for our information and that of our fellow-citizens, without showing, or even pretending to show, that they are unnecessary, I can only say that it militates against all my ideas of propriety. I have always hitherto supposed that every Representative on this floor had a right to be heard; that he had a right to call on the majority for their reasons both when they supported and opposed public measures. Gentlemen may, if they please, meet in what they have denominated caucuses when power was in other hands; they may then confer together about the measures in which they may think proper to unite; but, sir, if their debates are to take place there, and there alone, if we are not to be furnished here by them with the reasons which induce them to adopt public measures, they ought at least to open their doors to the minority, in order that, if they cannot hear their arguments in the proper place, they may not close them altogether. I trust, sir, that gentlemen themselves will see the impropriety of persevering in this line of conduct, and that they will consent to pay, if not to gentlemen in the minority, at least to their propositions, the attention and respect which they may deserve. Mr. GRISWOLD said, that he presumed the gentleman from Virginia (Mr. RANDOLPH) had requested that the extract from the report of the Secretary of the Treasury might be read, and which the House had just heard, for the purpose of proving that the resolution under consideration ought to pass. Indeed that report, and the statement to which it referred, evinced in the most satisfactory manner that the information required by the resolution was absolutely necessary for the purpose of enabling the House to decide understandingly on the proposition, which it was expected would soon be brought forward, for abolishing the internal taxes. The Secretary in his report had declared that the expense of collecting the internal taxes amounted nearly to twenty per cent. on the amount collected. It appeared, however, from the statements to which the Secretary had alluded, that the tax on stills, the carriage tax, the tax on licenses, on sales at auction, and the tax on refined sugar, had been included in one class, and the expense of collecting all those taxes, without distinguishing the charges on each branch, had been stated to be nearly twenty per cent., whilst the expense of collecting the stamp duty, another branch of the internal taxes, was short of five per cent., varying only a fraction from the charges on the revenue from impost and tonnage. These statements might be satisfactory as far as they went, but it was obvious that in examining the branches of a revenue, with a view to the expense of collection, it became necessary to ascertain the precise charge which had fallen on each branch, and to obtain this necessary information, and which the report and statements had left defective, the resolution had been principally brought forward. And what had rendered this information peculiarly necessary at this time was the ground which had been taken in opposition to the internal taxes. The only argument which he had heard against those taxes, and which did not equally apply to the impost, was drawn from the great expense which had arisen in the collection. To enable the House, therefore, to decide whether the fact existed on which that argument had been founded, it became necessary to inquire in the manner proposed by the resolution whether the extraordinary expense with which those taxes had been charged might not be diminished, and whether the expense really existed in relation to each description of them. Mr. G. said that he presumed no gentleman was prepared to say that the general expense of collection might not be diminished, and so far was he from believing that every branch of the internal taxes was subjected to the charge of nineteen or twenty per cent., he was perfectly confident that if gentlemen would agree to the resolution, the detailed statements, which the Secretary would furnish in obedience to it, would prove that the expense of collecting certain branches of those taxes would fall much short of the sum at which the same has been estimated. The consent of the House, said Mr. G., to every call for information, had formerly been so much a matter of course, that he should not have troubled the House with any remarks upon so plain a question as the present, had not the experience of this day proved, that gentlemen were not always to be indulged by the House with the information which they required; and the profound silence which had at this time been observed by those gentlemen who could either admit or reject the resolution, appeared to indicate a determination on their part to refuse the important and necessary information required by the resolution. He did presume, however, that upon this occasion the House would consent to the resolution, and more particularly, as the report of the Secretary of the Treasury, which had been read at the request of the gentleman from Virginia, proved so clearly the necessity of passing it. Mr. HUGER could not reconcile it with his sense of duty, to give a silent vote on the present occasion, nor could he but lament the strange and novel course of proceeding which gentlemen had thought proper to adopt. The intention, it would seem, was to repeal the internal taxes, right or wrong, and at all events; and so determined were gentlemen on carrying this favorite project into execution, that every thing like previous investigation, or even a wish to gain information on the subject, was hooted at and treated with the most sovereign contempt. Every, the smallest, reduction on taxes of any other description, was avowedly to be excluded, nor was any proposition to this effect deemed worthy of even a moment's consideration. The measure proposed, however, interested in a very particular manner that part of the community he had the honor to represent. They paid, it was true, a small portion of the internal taxes, but the various other taxes upon salt, brown sugar, coffee, &c., and the duties on imposts generally, fell more immediately and far more heavily on them. Was it not natural, therefore, that he should have some hesitation on the subject; that he should feel anxious to see this project thoroughly and completely investigated; that he should wish to receive every possible information which might either tend to satisfy his mind as to the expediency of repealing the internal taxes only, to the total exclusion of all others, or enable him to propose some other project, equally beneficial perhaps to the public at large, and which might at the same time accord better with the immediate interests of his constituents? His constituents, he was proud to say it, had ever contributed with alacrity and cheerfulness to the wants and exigencies of the Union. They were prepared and willing, he was confident, to do so still; and he made not the least doubt but that they would readily subscribe to the exclusive repeal of the internal taxes, and submit, without a murmur, to the continuation of all the other taxes, however burdensome to themselves, provided they are convinced and well satisfied that this measure was fairly and impartially adopted for the welfare of the whole, and not for the benefit of the one at the expense of the other division of the country. It was for this purpose, therefore, that he wished the present motion to be adopted, and that he had desired the attention of the Committee of Ways and Means to be directed, particularly, to those articles of importation and of general use and necessity, such as salt, sugar, coffee, common teas, &c. He was desirous that these and similar items should be compared with the carriage tax, the tax on licenses to retail spirituous liquors, and various other similar items of the internal taxes, and that the House might be furnished with such information with respect to both, as might enable him to judge, whether there might not be a partial repeal as well of some of the external as internal taxes, and not a total and exclusive reduction of the latter, as was contemplated; whilst all the former, however grievous and inconvenient, were to be retained. Did he then ask any thing which was unreasonable or improper? Could any possible inconvenience accrue from allowing him to obtain the information he desired? If not, why refuse to indulge him in what he deemed useful, and what (at the worst) could only be regarded by gentlemen themselves as superfluous information? Was it fair; was it becoming; did it comport with that civility and politeness which was due from the one to the other, by citizens of a common country, assembled together for the express purpose of consulting upon their common interests, to treat thus cavalierly what must at least be allowed to be a respectable minority? With respect to the two only reasons which had ever been offered in favor of the exclusive repeal of the internal tax, viz: the expense and number of officers required to collect it, was it not the immediate and precise object of the resolution under debate to inquire whether it was not possible to devise some means by which these inconveniences might be obviated, or at least greatly lessened? And what objection could there be to the inquiry? Were gentlemen perfectly and entirely convinced that nothing of the kind could be done, or were they apprehensive that the thing was in itself so feasible, that an inquiry of this kind would throw a stumbling-block in the way of the project already determined on, which although he would freely acknowledge, that as an abstract proposition it was expedient as much as possible, and to collect your taxes at as small an expense, and by means of as few agents as conveniently could be done, yet there was another still more important maxim which ought never to be lost sight of: this was, that the burdens of the Government, as well as the advantages which flowed from it, should be fairly, equally, impartially, and equitably distributed among every description of the citizens, in whatever part of the country they resided. If, therefore, it did happen, that a few more officers and a somewhat greater percentage were required to collect the taxes in one than in another part of the country, this alone would most certainly and indubitably not be a sufficient reason to do away all the taxes in the one, and throw the whole burden of the Government on the inhabitants of the other. Mr. RUTLEDGE confessed himself much puzzled by the new forms of proceeding this day adopted. Ever since he had had the honor of a seat in Congress, it had been invariably the practice, when measures were proposed not agreeable to the majority, for them to offer their objections to them. This had ever been the practice, and the experience of its convenience offered strong reasons for its continuance. When the majority stated their objections to any measure, the minority in sustaining it answered them fully; thus, both sides acted understandingly, and when the proceedings of the National Legislature went out to the people, they were at the same time informed of the reasons under which their Representatives had legislated. This had not only been the usage in Congress, but the form of proceeding in all representative bodies with whose history we are acquainted. Even in the British House of Commons, which gentlemen had often and emphatically styled a mockery of representation, so great is the respect paid to public opinion, that the majority deem it their duty to assign in debate the reasons of their conduct. Although the Minister in England has quite as much confidence in the strength of his majority as gentlemen here can have in theirs, yet, in feeling power, he does not forget right, and his regard for public opinion is so great, that he never secures his measures by a silent vote. In these days of innovation, we, it seems, are to pursue a different course. When the resolution offered this morning by his honorable friend from New York (Mr. MORRIS) was taken into consideration, not a voice was raised against it. This profound silence made us expect a unanimous vote; but, in consequence, he supposed, of some outdoor arrangements, it was rejected by this silent majority. He had seen many deliberative assemblies, but never before witnessed such a procedure. He would not say whether this was respectful towards the minority, who, we have been told from high authority, have their equal rights--he would not say whether it was dignified as it regarded the majority, but, without pretending to any spirit of prophecy, he would venture to say it could not be deemed politic or wise by the people of this country. When the doors of Congress were open, and persons admitted to take the debates, the people expected to be fully informed of the views and motives which governed the votes of their Representatives. But it seems our constituents are not to be treated with this heretofore common civility. In proposing measures we are obliged to guess at what gentlemen feel against them, (for they say nothing,) and to defend them, without knowing in what they are objectionable to those who govern in this House. This kind of governing is but ill calculated to produce harmony, to restore social intercourse, and to heal the wounds inflicted on society by the spirit of party. The question was taken, and it passed in the negative--yeas 37, nays 57. _Duties on Imports._ Mr. RUTLEDGE called up for consideration the resolution which he moved on Friday, on which the previous question was then taken, viz: "_Resolved_, That the Committee of Ways and Means be instructed particularly to inquire into the expediency of reducing the duties on brown sugar, coffee, and bohea tea." Mr. GRISWOLD hoped the resolution would be decided upon. Mr. RUTLEDGE hoped the reference would obtain. These articles paid the highest rate of duties and were of the first necessity. In looking over the rates of duties on imports, he saw many articles that were taxed enormously high. Those in the resolution were of the first necessity, the duty high, and laid when they were at war prices; while the people received war prices for their produce, they could with convenience pay for these articles, though high. The object of the resolution was merely to inquire, and he did not see how it could interfere with any object gentlemen have in view. Mr. DANA.--I beg liberty to tender the homage of my profound respects, for the dignified situation in which gentlemen have now placed themselves, and congratulate them on their silence. There is something peculiarly impressive in this mode of opposing every thing that is urged. It is seldom that gentlemen have exhibited such a remarkable appearance of a philosophical assembly. "That dumb Legislature will immortalize your name"--is said to have been the language of a certain distinguished General to a certain nominal Abbé, who has been represented as having pigeon-holes full of constitutions of his own making. During the memorable night at St. Cloud, when the French Council of Ancients, and Council of Five Hundred, were adjourned--to meet no more--it may be recollected, the powers of executive government were provisionally committed to three persons, styled Consuls, and two of them were the General and the Abbé. From each of the Councils, twenty-five members were selected, to compose a commission, and assist the provisional Consuls in preparing a constitution for France. Of the numerous projects of constitutions presented by the Abbé, it is said no part was finally adopted except the plan of a dumb Legislature. This, the General instantly seized with apparent enthusiasm, exclaiming to the Abbé, "that dumb Legislature will immortalize your name!" And it was determined to have a _corps legislatif_ that should vote, but not debate. It was scarcely to be expected that any thing like this would soon take place in our own country. But it is the prerogative of great geniuses, when in similar circumstances, to arrive at the same great results, although with some difference in the process. Nor can I forbear offering my tribute of admiration, for the genius who has projected a mode of proceeding among us, that so nearly rivals the plan adopted in France. I know not to whom is due the honor of this luminous discovery. After ascribing to him, however, all merited glory, permit me to examine the force of the argument relied on by gentlemen in opposition to the proposed resolution. Their argument is silence. I hope to be excused if I do not discuss this subject in the most satisfactory manner; as silence is a new species of logic, about which no directions have been found in any treatise on logic that I have ever seen. It will be my endeavor to reply to gentlemen by examining some points which may be considered as involved in their dumb arguments. One of these points is--that certain members of this House have pledged themselves to their constituents, for repealing all the internal taxes. They may have declared their opinions to this effect, before the election; and, being chosen under such circumstances, may now deem themselves bound in honor not to vary. The terms assented to between their constituents and themselves may, therefore, be viewed by them as the particular rule of their own conduct. But is this House to be regarded in the same light with the English House of Commons, during the early period of their history, when the knights of shires, and the representatives of cities and boroughs, were instructed on what terms they should bargain with the Crown for special privileges, and were limited to the price agreed on by their constituents? The situation of gentlemen who have thus pledged themselves to vote for repealing the internal taxes, must be irksome, indeed, if on mature consideration they should believe it more proper and more beneficial for the country to have other taxes reduced. Those who have entered into a stipulation of this sort, so as to feel it as a point of honor, are so peculiarly circumstanced that they might think it too assuming in me, were I so much as to express a desire that they would vote for reducing some of the duties on imports, instead of repealing all the internal taxes. It is to be hoped, the number of members who have pledged themselves in this manner, does not exceed twenty-five or thirty. Another point involved in this argument of silence is, that other gentlemen may have pledged themselves to these, and given them a promise of support on this subject. It must be acknowledged that this was more than was required on account of their seat in this House. If any gentlemen have absolutely so pledged themselves to their constituents, it must indeed be difficult to convince them. On this point, their minds must be so differently constituted from mine, that there does not seem to be any common principle between us that can be assumed as the basis of argumentation. Another point is, the Executive has recommended a repeal of all the internal taxes, and not any reduction of the impost. And will gentlemen act upon this as a sufficient reason for their conduct? Is it now to become a principle, that the Executive is to deliberate, and the Legislature to act, and that no measure is to be adopted unless proposed by the Executive? Would it not be better for the country to abolish this House, and to avoid useless expense, if it is to be nothing more than one of the ancient Parliaments of France, employed to register the edicts of a master? The silence of the gentlemen may also be considered as having relation to their great desire for the harmony of social intercourse. To prevent its being disturbed in the House by debating, they may have come to a determination that all the great questions shall be settled by gentlemen of a certain description, when met in nocturnal conclave, and be only voted upon in this place. If such be the fact, it seems but reasonable that any of the members of this House should be admitted in meetings of the conclave, as delegates from the territorial districts are admitted into Congress, with a right to debate, although not to vote. If, however, this is thought too much, gentlemen should at least have galleries provided, so that other members of the Legislature might be admitted as spectators, and have the opportunity of knowing the reasons for public measures. The question was called for, when Mr. EUSTIS begged the Speaker would state it, as, in listening to the arguments of the gentleman from Connecticut, he had forgotten it. Mr. RUTLEDGE said he was much pleased by the question of the honorable gentleman from Massachusetts. When gentlemen ask, What is the question? it is to be hoped that they will respect its merits; but, from the scene this day acted, he had learned that the only inquiry with gentlemen would be, from what side does this come? The question was then taken by yeas and nays, and lost--yeas 35, nays 58. TUESDAY, January 26. _Territorial Government for the District of Columbia._ Mr. SPRIGG reported a bill for the government of the Territory of Columbia. [The bill establishes a Legislature, chosen by the taxable citizens of the United States one year resident in the Territory, composed of a House of Representatives, to consist of twenty-five members, seven whereof to be chosen by the district of Rock Creek, seven from the part west of Rock Creek, and eleven by the county of Alexandria. The Governor to be appointed by the President of the United States. The Territory to pay the Legislature, and the United States the Governor. The judges to hold their offices during life, unless removed by the President on the application of two successive Legislatures.] Referred to the Committee of the whole House on Tuesday next. A memorial and remonstrances of sundry inhabitants of the county and town of Alexandria, in the District of Columbia, was presented to the House and read, praying that Congress will not agree to any plan, or pass any bill respecting the government of the said District, which shall, by the establishment of a subordinate Legislative or subordinate Executive, or otherwise, tend to unite under its power, the two parts of the district, as separated by the river Potomac.--Referred to the Committee of the whole House last appointed. THURSDAY, January 28. _Lieutenant Sterret, his Officers and Crew._ The House resolved itself into a Committee of the Whole on the report of a select committee of the nineteenth instant, on the resolutions of the Senate, in the form of joint resolutions of the two Houses, "in respect to Lieutenant Sterret, the officers, and crew of the United States' schooner Enterprise;" to which Committee of the whole House were also referred the said resolutions of the Senate; and, after some time spent therein, the SPEAKER resumed the chair, and Mr. Davis reported that the committee had had the said report and resolutions under consideration, and directed him to repeat to the House their disagreement to the said resolutions of the Senate, and their agreement to two resolutions contained in the report of the select committee thereupon, in the form of joint resolutions of the two Houses; which he delivered in at the Clerk's table. The House then proceeded to consider the said report and resolutions: Whereupon, the resolutions of the Senate, to which the Committee of the whole House reported their disagreement, being twice read at the Clerk's table, in the words following, to wit: _Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That, as a testimony of the high sense they entertain of the nautical skill and gallant conduct of Lieutenant Andrew Sterret, commander of the United States' schooner Enterprise, manifested in an engagement with, and in the capture of, a Tripolitan corsair, of superior force, in the Mediterranean Sea, fitted out by the Bey of that Regency to harass the trade, capture the vessels, and enslave the citizens, of these States, the President of the United States be requested to present Lieutenant Sterret with a gold medal, with such suitable devices thereon, as he shall deem proper, and emblematic of that heroic action, and the mercy extended to a barbarous enemy, who three times struck his colors twice, and recommenced hostilities: an act of humanity, however unmerited, highly honorable to the American flag and nation; and that the President of the United States be also requested to present to each of the Lieutenants, Porter and Lawson, of the Navy, and Lieutenant Lane of the Marines, who were serving on board the Enterprise in the engagement, and contributed, by their gallant conduct, to the success of the day, a sword, with such suitable devices as the President may deem fit. "_Be it further resolved_, In consideration of the intrepid behavior of the crew of the Enterprise, under the orders of their gallant commander, and their receiving no prize money, the corsair being dismantled and released after her capture, that one month's pay, over and above the usual allowance, be paid to all the other officers, sailors, and marines, who were actually on board and engaged in that action; for the expenditure of which charge Congress will make the necessary appropriation." The question was taken that the House do concur with the Committee of the whole House in their disagreement to the same, and resolved in the affirmative. The resolutions contained in the report of the select committee, to which the Committee of the whole House reported their agreement, being twice read, in the words following, to wit: "_Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That they entertain a high sense of the gallant conduct of Lieutenant Sterret, and the other officers, seamen, and marines, on board the schooner Enterprise, in the capture of a Tripolitan corsair, of fourteen guns and eighty men. "_Resolved_, That the President of the United States be requested to present to Lieutenant Sterret a sword, commemorative of the aforesaid heroic action; and that one month's extra pay be allowed to all the other officers, seamen, and marines, who were on board the Enterprise when the aforesaid action took place." The question was taken that the House do concur with the Committee of the whole House in their agreement to the same, and resolved in the affirmative. _Ordered_, That the said resolutions be engrossed, and read the third time to-morrow. MONDAY, February 8. _Imprisonment for Debt._ Mr. SMILIE called up his resolution that a committee be appointed to revise the laws respecting imprisonment for debts due the United States. His objects, he said, were two; to secure the debtor's property, and to inflict some penalty or provide some remedy instead of imprisonment for life. Mr. RUTLEDGE was opposed to imprisonment for life, where the debtor gave up his whole property, and was unable to pay all. He had known, in South Carolina, revenue officers imprisoned for debts due the United States, who had been many years confined; men of good character, men of honesty, but who, through ignorance of transacting certain business, or their misfortunes, were unable to pay. He knew an individual of that State who had applied to that House for relief; his petition was referred to the Secretary of the Treasury; the Secretary felt a delicacy in interfering in the case; the petition was not granted; and the person had now been in jail five years, though his inability to pay did not arise from having wasted the public money, or from aught but misfortune; for he was acknowledged to be a man of good character. He was averse to such cruelty. Hence the necessity of making some provision that the innocent, when distinctions can, as in most instances, be made, may not be subjected to cruel punishments, that were of no benefit to the United States. Why send him to jail? Why lock him up there? Why prevent his being able to support his family? Mr. SMILIE.--It is the case that when you exceed in making your laws what is reasonable, those laws, as the present concerning debtors to the United States, will not be executed. The present law cannot be put in execution. He wished some sufficient penalty. This was not the proper stage to give his sentiments; were it, he should say, he thought the defaulter ought to give up the property, and perhaps be imprisoned a period. But the Legislature are not the proper judges, and ought not to interfere; the Legislative and Judicial Departments should be kept separate. We want some uniform law, operating on all according to their demerit. The subject was postponed till to-morrow. FRIDAY, February 12. _State Balances._ Mr. THOMAS called up his motion respecting State Balances, which is as follows: "_Resolved_, That a committee be appointed to inquire into the expediency of extinguishing the claims of the United States for certain balances, which, by the Commissioners appointed to settle the accounts between the United States and the individual States, were reported to be due from several of the States to the United States, and that the said committee have leave to report by bill or otherwise." Mr. BAYARD hoped the resolution would prevail. The debtor States, not satisfied with the settlement made by the Board of Commissioners, had asked for information respecting the grounds on which it had been made. The information had been imperiously refused. In his opinion it was but right, if the debtor States did not dispute the validity of the debts due to the creditor States, that they should agree to expunge the claims against the debtor States. Indeed, he had been assured that the commission was not instituted with a view of sustaining any charges against the debtor States, but for ascertaining the amount due to the creditor States, and funding them; and he believed it had been so understood at the time. This was an affair not determinable by the ordinary rules applied to individual cases. Many of the States, not expecting a settlement, had kept no accounts or vouchers; and however great the supplies they contributed under such circumstances, they received no credits for them; while those States which had been most careful in the preservation of vouchers, shared a different and a better fate. Mr. B. believed it was the true policy of the creditor States to agree to the extinguishment of these balances. He believed they never could be paid, because no State allowed them to be due. They would not, therefore, be paid voluntarily; and he knew of no force in the United States to compel payment. Why, then, keep up a source of irritation, which could do no possible good, and which could only tend to repel some States from that constitution, which we all ought to endeavor to make the object of general affection? Mr. SOUTHARD said, he had yet heard no reason that convinced him that the resolution offered was just or proper. It would be recollected that this contract was made under the confederation. In the establishment of our independence, great and various exertions had been made. In the contributions made, great inequalities took place, which were unavoidable. Generally, where the war existed, the States became creditor States. It was just that those States which had contributed more than their share should be repaid, and that those who had paid less should make up the deficiency. If the debtor States were not to pay their balances, why settle the accounts? To relinquish the payment would be, in his opinion, not only unjust but unconstitutional. The constitution says, "All debts contracted, and engagements entered into, before the adoption of this constitution, shall be as valid against the United States, under this constitution as under the Confederation;" and the present Government had recognized those debts as just. The gentleman from Delaware says, the settlement is not just. But this was barely the suggestion of his own mind. To sustain it, he ought to have shown its defects; but this he had not done. Mr. MITCHILL was in favor of the resolution, as he believed a refusal to adopt it would be attended with unpleasant sensations. He judged so from an historical review of the business. The several States had associated together for their common defence, and, in the eye of equity, whatever that defence required, should constitute a common charge. The accounts of expenses thus incurred were not settled till the new Government was established. That Government fixed the mode of settlement; it appointed a board of referees, to report the debts and credits of the respective States. In this report, it was the fortune of certain States, notwithstanding the greatness of their contributions, to be reported debtor States. These States became debtors from the independent spirit with which they asserted their sovereign rights. Not relying on the general contributions, they furnished great supplies without making any charge to the Union; by exerting all their strength, they paid as they went, and preserved no vouchers of what they paid. This, he averred, was the case as to the State which he had the honor in part to represent; a State as willing as able to contribute, and which did contribute to a great extent; but which had neglected to preserve her vouchers, the preservation of which would have made her a creditor State. He believed, therefore, that in equity, the States were not bound to pay these balances. But to this it is replied, the award is final. He would not agree to that; he denied it. Besides, there was a want of coercive power in the United States to enforce those demands. From this consideration alone, we ought to proceed with lenity, and endeavor to make the settlement a peaceable one. As in other circumstances, we ought to make a virtue of necessity. Mr. S. SMITH said, he did not rise to take any part in the debate, but in order to bring the subject directly before the committee. To do which, he moved so to amend the resolution as to make it read, "Resolved, That it is expedient to extinguish the claims," &c. Mr. LOWNDES hoped the amendment would not be agreed to. He did not see the expediency of volunteering a relinquishment of the claims established against several of the States. The amendment was calculated to take the committee by surprise. The original resolution went merely to consider the expediency of a relinquishment; the amendment involved the principle itself. Mr. HILL was desirous the amendment should not be made, not from any indisposition himself to agree to it, but from a regard to the sentiments of other gentlemen. Even if it was ascertained that these debts had arisen on a just consideration, yet, in his opinion, they ought to be extinguished, from the principle that, in our Government, whatever hazarded the harmony of the Union, ought to be avoided. Precedents were not wanting in which sacrifices were made to this principle. He alluded to the quieting the claims under Connecticut rights. But, whatever might be the general ideas on this subject elsewhere, he knew not a man in North Carolina, who did not believe the adjustment iniquitous. To show the committee how the citizens of that State felt, he would state a case that had occurred before the Board of Commissioners. Two claims had been made, both for the same amount and the same description of supplies, one on one side and one on the other side, of Pedee River; one in North, and the other in South Carolina; and, in one case, seven shillings had been allowed, and in the other, only sixpence for the bushel of wheat. The business generally was entitled to the attention of Congress. It had, in fact, already been attended to at different times. New York had extinguished eight hundred thousand dollars of her balance under certain provisions applied to her case. Mr. BACON said, if the object of the motion was to go into a new liquidation of the old accounts between the United States and the several States, it would not only take up every day of the present session, but the work would be left unfinished for our successors. These debts had been incurred in a common cause, in which each State was equally interested, and towards which each State was bound equally to contribute. When Congress made requisitions on this principle, they were accompanied by a promise that there should be a final liquidation. This liquidation was made; the settlement was complete. But this settlement is now objected to, and what is to be done? Why we must annul the contract. This might satisfy some of the States, but he was sure it would dissatisfy others. He saw, therefore, no end to be answered by the motion. We must either set aside all that had been done, and begin _de novo_, to which this body is incompetent, or rest satisfied with what is already done. Mr. R. WILLIAMS observed, that since he had held a seat in the House, this subject had been almost every session called up. The more he had heard it discussed, the more he became convinced of the necessity of getting it out of the way. He found that whenever it was brought up, all was imagination. One State contended that it had contributed largely, and another, that its exertions had not been surpassed. We are asked, why relinquish these balances before we are solicited by the States? He would reply that North Carolina never had recognized the debt, and, in his opinion, never would apply for its extinguishment. He was in favor of the amendment, because the principle ought to be decided here, and not in a select committee. What, indeed, could such committee report? There were no vouchers or books whereon the settlement had been made to be got at. All they could do, then, would be to report the balances alleged to be due, which any member could at any time learn. It seemed almost useless to go into arguments to show the injustice of the claim, and of consequence, the justice of the resolution. It had been justly said, that those States which had contributed the most, had, by the report of the Commissioners, the most to pay; and this was peculiarly so with the State of North Carolina. Mr. W. had forborne to dwell on the injustice of these demands. But were he to enter on that branch of the discussion, he should say that the very act of destroying all the vouchers was of itself sufficient to justify any suspicion. He should say, that for what, in some States, there had been an allowance of one hundred pounds, North Carolina had not been allowed twenty shillings. Could, then, gentlemen talk of moral obligation, and say that this was a just debt? Mr. T. MORRIS said, it was contended that the accounts should be opened anew and re-examined. The fears, therefore, of the gentleman from Massachusetts, were entirely visionary. The resolution was a simple one. It proposes to inquire into the expediency of doing away these debts. The amendment goes to determine the principle here. He thought it proper the principle should be settled here. But gentlemen say they want information. If so, after the amendment is agreed to, they may move for a postponement. If the amendment were carried, he would himself move a postponement. It had been said that New York had had eight hundred thousand dollars of her debt remitted by the United States. But how did the case really stand? New York had availed herself of the act of Congress, not because she acknowledged the debt to be just, but because she preferred doing something to remaining in the situation towards the United States in which she stood. It was strange, then, to hear gentlemen say that New York had been favored. What was the fact? North Carolina, according to the gentleman, had not, and would not, pay one cent; and New York had discharged a greater sum than was due by all the other debtor States, with the exception of Delaware. She was, therefore, instead of being favored, placed in a worse situation than any other State. It was from the existence of this state of things that he wished a final decision to be made this session. New York having agreed to make certain payments to the United States, it was important to her to know whether the United States meant to enforce payment by the other States. Her situation would be truly unfortunate, if after agreeing to pay, the United States suffered her claims against the other States to sleep. She would not only have to pay her quota of the debts, but would see no prospect of deriving her share of benefit from the payments of the other debtor States. Mr. MACON said the subject was a very old one, which had occupied much time every session for many years, and he thought it would be as well to try the question now as at any other time. No information of a select committee could throw any new light upon it. There was a fact which ought to have great weight with the committee. One of the Commissioners who made the settlement, who was a member of this House, had, after the settlement, proposed a resolution to extinguish the balances of the debtor States; and he had stated, as a reason for this measure, that the principle adopted by the board had operated very harshly upon particular States. Mr. M. had it from authority not to be questioned, that in the settlement by the Commissioners, teams, with the usual number of horses, had not produced twenty shillings. This subject had hung over our heads for eight years, and no scheme was yet devised for collecting the balances. How could they be collected? Congress had, it is true, authorized expenditures by the States in the erection of fortifications; but this very act was a tacit confession of the impracticability of getting the money into the public Treasury. As to a settlement with North Carolina, it was involved in great difficulty. In the act of cession of lands by that State to the United States, it was provided that the territory ceded should be pledged to pay a proportional share of the balance due the United States. How could that share be estimated? Mr. M. regretted that this subject had been brought up. He should not himself have been for bringing it up, for he thought the claims of the United States not worth a rush. The truth was, the States had all exerted themselves in one great and common cause; they had done their best; they had acted with great glory. As to the State which he represented, he would ask if the first blood that had been spilled after that shed at Boston was not in North Carolina? and that was the blood of brother against brother. He desired not, however, to make comparisons, which were always unpleasant, but to show that North Carolina had no reason to shrink from an inquiry which would demonstrate that she had fully contributed her share in the common cause, without meaning to assert that she had done more than other States. Let, then, Congress decide at once, and abandon the claims altogether, or devise some plan for collecting them, that we may know how we stand. Mr. DANA said, I hope the amendment will not be agreed to. However gentlemen may be possessed of a wholesale intellect, that enables them to decide on interesting questions without a moment's reflection, I confess I am not blessed with so happy an intuition. I do not know that I have ever been called upon to form an opinion on this subject. As to a reference of it to a committee, I think their investigation may be useful, and after we get that, we may take time to decide. But now the plan is changed, and we are called upon to decide at once the principle. This mode of transacting business may be called an economy of time. You may give it the name, but it is not the substance. For my part, I desire to proceed according to our old plan, and go through the slow process of investigation. This is my way, and gentlemen may rest assured that this mode of hurrying business is not the way to save time, but to lose it. Mr. BAYARD declared himself in favor of the amendment, and he could not think, notwithstanding the remarks of his honorable friend from Connecticut, that any gentleman in the House was unprepared to vote upon it. The subject had been frequently discussed, and he believed that the House was then as well prepared for a decision as they would be for a century to come. It involved but a single principle; and, as to information, he could scarcely tell what information was wanted. He felt much of the indifference of the gentleman from North Carolina, (Mr. MACON.) He was sure the United States had neither the right, nor the power to recover these balances; and he repeated it as his opinion, that it had not been the original intention that the debtor States should pay them. Will gentlemen recollect that the commission was instituted under the old Confederation. Had Congress, then, a right to do any thing to bind the sovereignties of the independent States? All they could do was to pass resolutions making requisitions, which the States might or might not comply with. They could appoint Commissioners to settle the accounts, but could they impose the debts upon the States? No, they could not. It, therefore, never could have been contemplated that they would establish those debts. The only effect that could have been contemplated, was, that the creditor States might rely that, on a settlement, Congress would assume their balances. On the question being put, the amendment was lost--yeas 41, nays 46. When the original resolution for referring to a select committee the consideration of the expediency of extinguishing the balances was carried. _Ordered_, That Mr. THOMAS, Mr. BAYARD, Mr. DANA, Mr. HILL, and Mr. BUTLER, be appointed a committee, pursuant to the said resolution. And the House adjourned. TUESDAY, February 16. _Judiciary System._ The House then went into Committee of the Whole on the Judiciary bill from the Senate.[66] Mr. HENDERSON.--I should not rise to offer my opinion on the great question before the committee, were I not placed in a situation different from that in which I have been since I have had the honor of a seat in this House. The Legislature of the State of North Carolina, one of whose representatives I am on this floor, have seen proper to instruct their Senators and to recommend to their Representatives in Congress, to use their exertions to procure a repeal of the law passed the last session of Congress, for the more convenient organization of the Courts of the United States, and the bill on your table has for its object the repeal of this law, and as I shall probably vote against its passage, a decent respect for the opinions of those who have framed and sent forward those resolutions, demands that I should give the reasons which influence my conduct. The people of America have obtained and established that the powers of Government shall be vested in three great departments; the Legislative, the Executive, and the Judicial. They have said that there shall be a House of Representatives, the members of which shall be chosen by the people of the several States every second year. Though this House is composed of members chosen by the people immediately; though they can have no other interest than the great community from which they were sent; though they must return to the common mass in the short period of two years; yet enlightened America did not see proper to intrust the power of making laws to this body alone; they knew that the history of man, and the experience of ages, bore testimony against the safety of committing this high power to any one Assembly not checked by any other body. They have therefore erected another branch of the Legislature, called the Senate, the members of which are not to be elected by the people immediately, but by the sovereignties of the several States; they are to be chosen for six years, and not for two; and the qualifications requisite to entitle those to a seat is different from that of a member of this House. To these bodies are given the power of initiating all laws; but after a bill has passed both of these Houses, before it becomes of binding obligation on the nation, it must be approved of by the President; it is a dead letter until life is given by the Executive. The President is elected not by the people, not by the Legislatures of the several States, not by either House of Congress, but by Electors chosen by the people. He is to hold his office during four years. This is the second great department of the Government. It will be easily discovered from this cursory view of our constitution, the caution and jealousy with which the people have conferred the power of making laws, of commanding what is right, and prohibiting what is wrong. But, sir, after this law was made, after its authoritative mandate was acknowledged by the nation, it became necessary to establish some tribunal to judge of the extent and obligation of this law. The people did not see proper to intrust this power of judging of the meaning of their laws, either to the Legislative or to the Executive, because they participated in the making of these laws; and experience had shown that it is essential for the preservation of liberty that the Judicial and Legislative authorities should be kept separate and distinct. They therefore enacted a third department, called the Judicial, and said that "the Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. The judges both of the Supreme and inferior courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." It is admitted, I understand, by all parties, by every description of persons, that these words, "shall hold their offices during good behavior," are intended as a limitation of power. The question is, what power is thus to be limited and checked? I answer, that all and every power which would have had the authority of impairing the tenure by which the judges hold their offices, (if these words were not inserted,) is checked and limited by these words; whether that power should be found to reside in Congress, or in the Executive. These words are broad and extensive in their signification, and can only be satisfied by being construed to control the Legislative as well as the Executive power. But gentlemen contend that they must be confined to limiting the power of the President. I ask gentlemen, what is there in the constitution to prove their signification to this end alone? When you erect a court and fill it with a judge, and tell him in plain, simple language, that he shall hold his office during good behavior, or as long as he shall behave well; what, I beseech you, sir, will any man, whose mind is not bewildered in the mazes of modern metaphysics, infer from the declaration? Certainly that the office will not be taken from him until he misbehaves; nor that he will be taken from the office during his good behavior. Under this impression he enters upon his duty, performing it with the most perfect satisfaction to all persons who have business before him; and the Legislature, without whispering a complaint, abolishes the office and thereby turns out the judge. The judge is told this is no violation of the compact; although you have behaved well, although we have promised that as long as you did behave well you should continue in office, yet, there is now no further necessity for your services, and you may retire. These words, "during good behavior," are intended to prevent the President from dismissing you from office, and not the Legislature from destroying your office. Do you suppose, sir, that there is a man of common understanding in the nation, whose mind is not alive to the influence of party spirit, that would yield his assent to this reasoning? I hope and believe there is not. But, sir, how is it proved that the President would have had the power of removing the judges from their office, if these words, "during good behavior," had not been inserted in the constitution? Are there any words in that instrument which give the President expressly the power of removing any officer at pleasure? If there are, I call upon gentlemen to point them out; it does not result from the fashionable axiom, that the power which can create can destroy. The President can nominate, but he can appoint to office only by the advice and consent of the Senate. Therefore, it would follow, if the power of displacing results from that of creating, that the Senate should participate in displacing as well as creating officers. But however this may be, it is certainly a mere constructive power which he has exercised, because the Legislature have, from motives of expediency, acknowledged that he had it. If the constitution does not necessarily give the President the right of removing officers at pleasure, and if that right depend upon Legislative acts or constructions, where would have been the necessity for inserting these emphatic words as a check and limitation of Executive power, where without them the President has no such power? You are taking great pains to control a power which does not exist. The persons who framed our constitution knew that a power of removal in ordinary cases must exist somewhere. They took care, therefore, that in whatever hands it might fall, the language of the constitution respecting the tenure of the office of a judge should be co-extensive with the whole power of removal, whether it should reside in one or in more hands. But it has been said that the powers of each Congress are equal, and that a subsequent Legislature can repeal the acts of a former; and as this law was passed by the last Congress, we have the same power to repeal it which they had to enact it. This objection is more plausible than solid. It is not contended by us that legislatures who are not limited in their powers have not the same authority. The question is not what omnipotent Assemblies can do, but what _we_ can do under a constitution defining and limiting with accuracy the extent and boundaries of our authority. The very section in the constitution (sec. third, art. first) which I have read, is a proof against the power of every Congress to repeal the acts of their predecessors. In the latter part of the eighth section it is proposed that the judges shall receive for their services a compensation which shall not be diminished during their continuance in office; and yet the salary was ascertained and fixed by a former Congress. The same observations may be made with respect to compensation for the President, which can neither be increased nor diminished during the period for which he shall have been elected. It is not competent for this Congress to vary the compensation to him which has been fixed by a prior Legislature. It is clearly seen, upon a little investigation, that the position which gentlemen take is too extensive, and leads immediately to a destruction of the constitution. It does away all check, and makes the Legislature omnipotent. It has been asked, that if a corrupt and unprincipled Congress should make an army of judges, have not a subsequent Congress the right of repealing the law establishing this monstrous judicial system? I answer that they have not; the same mode of reasoning which attempts to prove this right from an abuse of power will also prove that you may lessen the compensation of your judges. May not equal oppression be imposed upon the people by giving your judges exorbitant salaries as by increasing their numbers? May not the same corrupt and unprincipled motive which would lead men to the raising of an army of judges lead them to squander the public money? And may they not, instead of giving their judges two thousand dollars a year, give them two hundred thousand? And yet, sir, if it were to take place, I know of no authority under the constitution to lessen that exorbitant compensation. The Government of our country is predicated upon a reasonable confidence in those who administer our public affairs. They must have the power of acting for the public welfare, and this would never have been given them if the possible abuse of this power were a sufficient reason for withholding it. Again, sir, the construction which gentlemen on the other side of the House contend for, tends to the concentration of Legislative and Executive powers in the same hands. If Congress, who have the power of making laws, can also displace their judges by repealing that which creates the offices they fill, the irresistible consequence is, that whatever law is passed the judges must carry into execution, or they will be turned out of office. It is of little importance to the people of this country whether Congress sit in judgment upon their laws themselves, or whether they sit in judgment upon those who are appointed for that purpose. It amounts to the same despotism; they in fact judge the extent and obligations of their own statutes by having those in their power who are placed on the sacred seat of justice. Whatever the Legislature declares to be law must be obeyed. The constitutional check which the judges were to be on the Legislature is completely done away. They may pass ex post facto laws, bills of attainder, suspend the writ of habeas corpus in time of peace, and the judge who dares to question their authority is to be hurled from his seat. All the ramparts which the constitution has erected around the liberties of the people, are prostrated at one blow by the passage of this law. The monstrous and unheard of doctrine which has been lately advanced, that the judges have not the right of declaring unconstitutional laws void, will be put into practice by the adoption of this measure. New offences may be created by law. Associations and combinations may be declared treason, and the affrighted and appalled citizen may in vain seek refuge in the independence of your courts. In vain may he hold out the constitution and deny the authority of Congress to pass a law of such undefined signification, and call upon the judges to protect him; he will be told that the opinion of Congress now is, that we have no right to judge of their authority; this will be the consequence of concentrating Judicial and Legislative power in the same hands. It is the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their Government a Monarchy, Republic, or Democracy. Mr. Chairman, I see, or think I see, in this attempt, that spirit of innovation which has prostrated before it a great part of the old world--every institution which the wisdom and experience of ages had reared up for the benefit of man. A spirit which has rode in the whirlwind and directed the storm, to the destruction of the fairest portion of Europe; which has swept before it every vestige of law, religion, morality, and rational government; which has brought twenty millions of people at the feet of one, and compelled them to seek refuge from their complicated miseries in the calm of despotism. It is against the influence of this tremendous spirit that I wish to raise my voice, and exert my powers, weak and feeble as they are. I fear, sir, on the seventh of December, it made its appearance within these walls, clothed in a gigantic body, impatient for action. I fear it has already begun to exert its all-devouring energy. Have you a judiciary system extending over this immense country, matured by the wisdom of your ablest and best men? It must be destroyed. Have you taxes which have been laid since the commencement of the Government? And is the irritation consequent upon the laying of taxes worn off? Are they paid exclusively by the wealthy and the luxurious part of the community? And are they pledged for the payment of the public debt? They must be abolished. Have you a Mint establishment, which is not only essentially necessary to protect the country against the influx of base foreign metals, but is a splendid attribute of sovereignty? It must be abolished. Have you laws which require foreigners coming to your country to go through a probationary state, by which their habits, their morals, and propensities may be known, before they are admitted to all the rights of native Americans? They must be repealed, and our shores crowded with the outcasts of society, lest oppressed humanity then should find no asylum on this globe! THURSDAY, February 18. A message was received from the PRESIDENT OF THE UNITED STATES, transmitting a letter from the Secretary of War on the subject of certain lands in the neighborhood of our military posts, on which it might be expedient for the Legislature to make some provisions. A letter was also received from the Governor of Indiana, on the same subject. The said Message and letter were read, and ordered to lie on the table. _The Judiciary Bill._ The House again resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act to repeal certain acts respecting the organization of the Courts of the United States and for other purposes." Mr. STANLEY.--Mr. Chairman, every measure which is brought under the consideration of a Legislature must first be tested by its expediency. Unhappily, in the present instance, another question arises--its constitutionality. I will endeavor, concisely, to examine the subject on both those points. And, first, as to the expediency of the measure. In order to form a correct estimate between the present Judiciary system of the courts of the United States and that for which it was substituted, it is proper to take a comparative view of both. Under the former system, there were six judges of the Supreme Court of the United States, who held two sessions of the Supreme Court in each year, at the seat of Government. Those judges also held in each State a circuit court, two terms in each year, in which the judge of the district was associated with the circuit judge. The organization of the district courts having jurisdiction, principally, of matters affecting the revenue and admiralty causes, not being connected with the present question, need not be examined. From the errors of this system resulted, first, a delay of justice. The judges bound to hold courts in succession at remote parts of the continent, were continually travelling; from the variety of accidents to which travellers are subjected in this country, from the condition of roads and overflowing of rivers, it frequently happened that the judges failed in their attempts to get to the courts, or arrived so late that little business was done. Suitors, jurors, and witnesses, were subjected to the trouble and expense of attending courts without the accomplishment of their business; hence resulted a delay of justice. In the State to which I belong, during the few years existence of the former system, this was the case frequently. Another great evil resulting from that system was, its tendency to lessen the character and respectability of the Federal bench. Those best acquainted with the profession of the law will most readily admit, that even a life of patient study is unequal to the complete attainment of principles and rules; and that much labor and industry are necessary to preserve that which is gained. Consequently, that extent of legal knowledge, correctness of judgment, and respectability of character, which should designate the persons qualified for this important trust were seldom to be found, but in men far advanced in years. Men possessing these qualifications, not inured to labor, are seldom equal to the fatigue of their duty; or, if at the time of appointment, fast approaching to the infirmities of age, were not to be expected to relinquish the enjoyments of private life for an office, which, however honorable, subjected them to the fatigue of a day laborer. The office, with its incumbrances, was, as it were, offered to the lowest bidder. And men best qualified to honor the bench, were driven from it. True it is, men have been found eminently uniting virtue and talents, who have accepted the office under all its distressing circumstances, but we owe this rather to their patriotism than to the advantages of the situation. Let it also be remembered that, in some instances, gentlemen who would have adorned the seat of justice of any country, were compelled to relinquish their seats; and in others, refused to accept the appointment. Another error of that system was, that the judges of the Supreme Court, the court in the last resort, before whom the errors of the inferior circuit courts were to be corrected, were the same men who presided in those circuit courts. With great deference for the opinions of gentlemen who prefer that system, I pronounce my opinion, that its errors were radical; that those who justly estimated the importance to our interest and national character, of a speedy and correct administration of justice, ought to have desired a change. The present system has happily obviated these errors. The States are divided into six circuits; in each State is appointed one judge, called a circuit judge; the judges of the States, composing one circuit, ride together into the States of their circuit, and together hold the court. The much smaller distance which those judges have to travel than the circuit judges, under the former system, secure their due attendance; a portion of their time is left them to study and reflection, and the same persons presiding at successive terms, a uniformity of decision is preserved. The six former judges hold the Supreme Court, with original constitutional jurisdiction in matters of the utmost national importance, and appellate jurisdiction, in certain cases, where the sum in dispute is two thousand dollars; they are also the court in which the errors of the circuit court are examined and corrected. It is objected against the act proposed to be repealed, that a dangerous patronage is created by it for the President. I shall pass over what I consider an inconsistency in this objection coming from gentlemen who profess that implicit confidence is due to the man chosen by the people, who, in his appointments, speaks not less the voice of the people than the voice of God, and examine the weight of the objection. If this apprehended patronage means the power of appointing the Judiciary, that power is given by the constitution, and is the same, whether the power of the Judiciary be vested in six or in sixteen judges. If it fear an undue control over the people in favor of the Executive, through the Judiciary, make the judges as independent as we contend they are and ought to be, and they are placed beyond the necessity of descending to the practice of improper means to preserve Executive favor. We have been told, sir, that it is necessary the judges should ride into the States to gain a knowledge of the laws by which, in many cases, they are to decide. Until this occasion I have never heard that the laws of a country could only be acquired in the atmosphere of that country where they are in force. Nine-tenths of the decisions in our State courts and Federal courts turn on questions of common law; yet, has it ever been suggested that an American judge was incompetent to decide on common law questions, because he had not studied in England? No, sir, the knowledge in both cases may be acquired in the closet. To these observations permit me to add, that the remonstrances from the bar of Philadelphia, composed of gentlemen no less celebrated for the respectability of their private than of their professional character, who, on this occasion, so interesting to the welfare of their country, have sacrificed their political prejudices, strongly expressing their decided preference of the present system to the former, is, to my mind, conclusive, that it ought to be preferred. I am, therefore, of opinion, that it is inexpedient to pass the present repealing bill; and so long as my opinion is supported by the respectable authority I have just alluded to, and opposed only by the objections which I have noticed, I shall feel satisfied that opinion is correct. In approaching the second question which I proposed to examine--the constitutionality of the measure--whether I reflect on the magnitude of the question on the one hand, or my inability on the other, I am, indeed, humbled before the undertaking. Without examining whether Government, according to the modern opinion, should be founded on the reason and sense of justice of man, it is certain our Government is calculated to guard against his weakness and his wickedness. Our Government has been particularly cautious on this subject; it has left nothing to the hazard of reason or sense of justice; it has carefully delegated powers to three distinct departments, and separated these departments by boundaries plainly marked and formed, each so as not to control, at least to check, the other. The Legislative powers, though vested in men chosen frequently and by the people themselves in one branch, and by the immediate agents of the people in the other, are nevertheless the object of suspicion and caution. Their powers, far from resting on their discretion or sense of expediency, are expressly and cautiously limited. The Executive conditional veto forms one check on the Legislature; the Judiciary, I shall contend, are a check on both. Here, permit me to say, that from the spirit and the words of our constitution, I infer that the Judiciary are a co-ordinate department with the Executive and Legislative. The framers of our constitution, satisfied that the powers of well-organized Governments ought to be divided into three branches--Legislative, Executive, and Judicial--have nowhere expressly declared there shall be such departments, but, after premising the objects of the Government, proceed to ordain how the Legislature shall be composed; and article two, section two, declares, "The power shall be vested in a President of the United States of America; he shall hold his office during the term of four years," and prescribes the mode of election. Article three, section one, also declares, "The Judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish," and the judges of the supreme and inferior courts shall hold, &c., during good behavior. By comparing these sections of the constitution, it appears the Judiciary and the Executive are expressly created by the constitution, and nothing is left to the discretion of Congress, as to the existence of these departments; they are created by the same words; and if the Legislature claim a right to put down the Judiciary at pleasure, before the happening of that event till which the constitution secures their offices--their misbehavior--they may as well assume the right to remove the President before the happening of that event till which his office is secured, to wit, the expiration of four years. I shall attempt to establish as a first principle, that the Judiciary are a check on the Legislature, and thence to show first, that, by the spirit of our constitution, the Judiciary ought to be independent, beyond the control or influence of either of the other departments of power; and secondly, that, by the words of the constitution, they are so secured. First, then, that the Judiciary are a check on the Legislature. In the constitution, we find certain powers delegated to Congress; we also find they are prohibited from exercising certain powers; among which are, they shall pass no _ex post facto_ law, no bill of attainder, no law respecting religion, &c. Should, unhappily, a Legislature be found who, from weakness or wickedness, or the union of both, should transgress the bounds prescribed, what is the security of the citizen? After all the experience derived from the example of other Governments, after all the deliberation and wisdom of our sages who framed the constitution, are we left, in this important instance, as under the despotism of a monarch, to seek redress through the throes and convulsions of a revolution? No, sir. The Judiciary are our security. The Legislature may enact penalties, and denounce punishments against those who do not yield obedience to their unconstitutional acts; their penalties cannot be exacted, nor punishments inflicted, without the judgment of a court. The judges are to expound the law, and that fundamental, paramount law, the constitution. To this purpose they are sworn to support the constitution. While the Judiciary firmly, independently, and uprightly, discharge their duty and declare the act of the Legislature contrary to the constitution, to be void, the Legislature are checked, and the citizen shielded from oppression and persecution. But, ask gentlemen, whence do the courts derive this power, and the honorable gentleman from Virginia (Mr. THOMPSON) says, we are contending for this common law doctrine, that the courts are a check on the Legislature. If I misunderstood the gentleman, I trust he will correct me. Sir, that gentleman, I am willing to presume, knows, what I assure him no gentleman with whom on this occasion I act, is ignorant of, that this is not a common law doctrine; that in England their courts have no check on the Legislature--their Parliament are emphatically styled omnipotent, and if they violate the few natural rights that remain to the citizens, they have no remedy but in a resort to revolutionary principles; it was the want of this check to the oppressions of their rulers, which has produced civil wars, and driven one monarch from his kingdom, and sent another to the scaffold. This power exists in no other Government, because under no other Government does there exist a Legislature with limited powers; under our Government it is the very essence, the constitution of a court, the oath enjoined on them to support the constitution. The exercise and the admission of this right are not new in America; instances must be in the recollection of every gentleman. I will cite a few most prominent: The honorable member (Mr. THOMPSON) has been pleased to call the attention of the committee to the examples drawn from his State; I beg leave to profit from the same source. In 1787, the Legislature of that State passed an act making new arrangements in the jurisdiction of the courts. The judges, among whom was that venerable gentleman mentioned by the member from that State, whose merits and worth command the sincere homage of my respects, protested against this act, and refused to carry it into effect; the Legislature acquiesced, and the law was repealed. Upon the imposition of the carriage tax by Congress, a citizen of Virginia refused to pay the tax, on the ground that it was unconstitutionally laid. He was sued for the penalty in the circuit court of that State, from whence, by writ of error, the suit came before the Supreme Court; in this case the defendant relied solely on the unconstitutionality of the act of Congress, and on this ground was defended by the attorney general of the State of Virginia, and the attorney general of the State of Pennsylvania. At this time, then, it appears that these learned gentlemen, the judges, and the citizens, thought the court competent to relieve in case the law was judged to be unconstitutional. In 1792, Congress passed an act imposing certain duties respecting invalid pensioners, upon the judges of the circuit court. The judges, at the first court after this act, protested against it; their protests were transmitted to the President of the United States--that President, who had presided in the General Convention which framed the constitution, and, therefore, as likely to understand the powers of Congress on the Judiciary as any other man, so far sanctioned their opinions as to transmit them to the next Congress, where the act was reconsidered and repealed. I beg leave, also, to allude to the authority before mentioned by my friend from Pennsylvania, (Mr. HEMPHILL,) which I should think of some weight here. It is the opinion of a gentleman, venerable for his age, respectable for legal knowledge, and distinguished for what, in the fashionable language of the day, are termed republican principles. I mean the Executive of Pennsylvania; that gentleman, in assigning to the Legislature of his State his reasons for not approving an act they had laid before him, after expressing his doubts of the constitutionality of the act, declares, "he cannot, from a confidence in the legal knowledge, integrity, and fortitude of his former brethren in the Supreme Court, risk his character in a judicial decision on this question, when he does not see any advantage to be derived to his country from a possibility of success." If any words can make more plain the opinion here conveyed, it is that he considers the judges have the power and will exercise it, to declare the act unconstitutional. To my mind, these considerations are satisfactory, that, from the very constitution of our courts, from the practice and admission of our State courts and State Legislatures, and Federal courts, and Federal Legislature, that the judges of the United States, sitting in court, have the power, and by oath are bound to pronounce, that, an act contrary to the constitution, is void. From the establishment of this proposition, that the judges are the expounders of the constitution, and the laws made under it, and that they are thereby a check on the Legislature, I shall infer that, by the spirit of our constitution, they ought to be independent of the other branches of Government, but particularly so of the Legislature. The concentrating the branches of power either Executive and Legislative, or Legislative and Judiciary, in the same hands, is the very essence of tyranny; in proportion as we advance towards the union of those powers, in the same proportion do we recede from liberty. Are these departments separate, unconnected--if the Legislature by any means procure their will either directly or indirectly, to be substituted for or to overrule judicial judgment? Whether the Legislature expound and adjudge their acts themselves, or submit them to the exposition and judgment of a judiciary subservient to them, is essentially the same. If the Legislature exercise the power of removal from office by the direct means of a vote of removal, or by the indirect means, the legislative legerdemain of a repealing act, is precisely the same thing, the judges are no longer independent, but dependent on the Legislature for their offices, and subject to their control; a consequence entirely repugnant to the spirit of our constitution. I shall attempt to show, that by the words of our constitution, the judges are placed beyond Legislative control. Article three, section one: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." Until the contemplation of the present measure, I incline to believe, it never entered the mind of any man acquainted with this clause of the constitution, that judges should be removed otherwise than by impeachment for misdemeanor. The advocates for this Legislative power contend that the tenure of "good behavior" in this article of the constitution is intended to restrict Executive and not Legislative power. It does not appear probable that an express restriction should be introduced against a power which is nowhere expressly granted; for gentlemen know that the Executive power of removal from office is a power admitted from construction, and not founded on any thing drawn from the constitution. I say this rather, because, by the constitution, the aid of the Senate is necessary to appoint, and _a fortiori_ should be necessary to remove. It is important to ascertain what was the intention of the framers of the constitution in introducing the words "good behavior." The most correct source in our power from which this aid may be derived, is the writings and opinions at that day of those who aided in the great work. Among those publications which were written for the purpose of explaining and recommending this constitution, the most celebrated are those pieces over the signature of "Publius," written by the pens of gentlemen of leading influence in the Convention, and whose talents and patriotism are still honored by the nation. In that part of this work which treats of the tenure of the office of judge during "good behavior," I find this strong expression: "The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of Government. In a monarchy, it is an excellent barrier to the despotism of the prince. In a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body." This, sir, to my mind, is conclusive, that the convention intended this tenure as a restriction no less on Legislative than on Executive power, and that, in this sense of the phrase, the people of America received this part of the constitution. In ascertaining the import of the words "during good behavior," it is certainly important to inquire the end to which they have been used in other similar cases. My colleague (Mr. HENDERSON) has, with much abler talents, shown that, in most of the State constitutions, which existed before our Federal constitution, these words are used to fix the tenure of offices where the Executive have neither express nor constructive power of removal; consequently, they are in those constitutions restrictive of the Legislative power. If, then, the framers of our constitution borrowed this tenure from these State constitutions, it is fair and reasonable to conclude they used them in the sense in which they were previously received. But, says my colleague on the other side of the House, (Mr. ROBERT WILLIAMS,) the judges in England hold their offices by the tenure of "good behavior," and yet are removable on an address from both Houses of Parliament, and he infers that the terms may have been taken from England. To this I will first observe, that no fair argument can be drawn from the existence of this Legislative power there, for the exercise here. The mode of appointment there may render such control over the Executive necessary, which, from the provisions of our constitution, are not wanted here. In England, the King has the sole power of appointment--the people have no previous check. In this country, the Executive appointment is checked by the requisite sanction of the Senate. But is this Legislative power in Great Britain usurped by construction? No, if the gentleman will read again the statute of 13 William III., he will find that this power of removal is expressly granted by the Crown to Parliament. If, then, one convention had this statute before them, in adopting that part which relates to the tenure of office, and omitting that part which gives the power of removal, it is not to be presumed they intended so important a power should depend on construction. The same gentleman (Mr. ROBERT WILLIAMS) also contended that it could not be presumed the convention intended to restrict the power of the Representatives of the people, the friends of the people. What will the gentleman say of the correctness of his opinion, when I remind him that our powers are all expressly restricted; that the same article which fixes the tenure of "good behavior," expressly and undoubtedly guards against the power of the Representatives of the people, the friends of the people, by securing the salaries of the judges undiminished during their continuance in office. Mr. GILES said that he felt some degree of apprehension, that, in the course he deemed it necessary to take in the discussion of this question, some observations might fall from him which might not be in strict harmony with the feelings of some gentlemen of the committee. He should regret, however, if a compliance with a sense of duty should produce that effect. He said, therefore, that he wished to apprise gentlemen that he intended to direct his observations as much as possible to the effects and tendencies of measures; and that when he was constrained to speak of the views of gentlemen, it would be with respect to what he conceived to be their opinions in relation to the general interests, and not to private gratifications. He said it was natural that men should differ in the choice of means to produce a given end, and more natural that they should differ in the choice of political means than any other; because the subject presented more complicated and variable objects, out of which to make a choice. Accordingly, a great portion of the human mind has been at all times directed towards monarchy, as the best form of government to enforce obedience and ensure the general happiness; whereas another portion of the human mind has given a preference to the republican form, as best calculated to produce the same end; and there is no reason for applying improper motives to individuals who should give a preference to either of the principles, provided in doing so they follow the honest dictates of their own judgments. It must be obvious to the most common observer, that, from the commencement of the Government of the United States, and perhaps before it, a difference of opinion existed among the citizens, having more or less reference to these two extreme fundamental points, and that it manifested itself in the modification or administration of the Government as soon as it was put in operation. On one side, it was contended, that in the organization of the constitution a due apportionment of authority had not been made among the several departments; that the Legislature was too powerful for the Executive Department; and to create and preserve a proper equipoise, it was necessary to infuse into the Executive Department, by legislation, all artificial powers compatible with the constitution, upon which the most diffusive construction was given; or, in other words, to place in Executive hands all the patronage it was possible to create, for the purpose of protecting the President against the full force of his constitutional responsibility to the people. On the other side, it was contended, that the doctrine of patronage was repugnant to the opinions and feelings of the people; that it was unnecessary, expensive, and oppressive, and that the highest energy the Government could possess, would flow from the confidence of the mass of the people, founded upon their own sense of their common interests. Hence, what is called party in the United States, grew up from a division of opinion respecting these two great characteristic principles. Patronage, or the creation of partial interest for the protection and support of Government, on the one side: on the other side, to effect the same end, a fair responsibility of all representatives to the people; an adherence to the general interests, and a reliance on the confidence of the people at large, resulting from a sense of their common interests. A variety of circumstances existed in the United States at the commencement of the Government, and a great number of favorable incidents continued afterwards to arise, which gave the patronage system the preponderancy, during the first three Presidential terms of election; notwithstanding it was evident, that the system was adopted and pursued in direct hostility to the feelings and opinions of a great portion of the American people. The Government was ushered into operation under a vast excitement of federal fervor, flowing from its recent triumph on the question of adopting the constitution. At that time a considerable debt was afloat in the United States, which had grown out of the Revolutionary war. This debt was of two kinds: the debt proper of the United States, or engagements made by the United States in their federal capacity; the other, the State debts or engagements entered into by the respective States for the support of the common cause. The favorers of the patronage system readily availed themselves of these materials for erecting a moneyed interest; gave to it a stability, or qualified perpetuity, and calculated upon its certain support in all their measures of irresponsibility. This was done not only by funding the debt proper of the United States, but by assuming the payment of the State debts, and funding them also; and it is believed, extending the assumption beyond the actual engagements of the States. Hence the Federal axiom, that a public debt is a public blessing. Shortly after this event, an Indian war sprang up--he would not say by what means--in consequence of which an army was added to the list of patronage. The Algerines commenced a predatory war upon the commerce of the United States, and thence a navy formed a new item of patronage. Taxes became necessary to meet the expenses of this system, and an arrangement of internal taxes, an excise, &c., still swelled the list of patronage. But the circumstance which most favored this system was, the breaking out of a tremendous and unprecedented war in those countries of Europe with which the United States had the most intimate relations. The feelings and sympathies of the people of the United States were so strongly attracted by the tremendous scenes existing there, that they considered their own internal concerns in a secondary point of view. After a variable conduct had been pursued by the United States in relation to these events, the depredations committed upon commerce, and the excitements produced thereby, enabled the Administration to indulge themselves in a more decisive course, and they at once pushed forward the people to the X, Y, Z, of their political alphabet, before they had well learned and understood the A, B, C, of the principles of the Administration. Armies and navies were raised, and a variety of other schemes of expense were adopted, which placed the Administration in the embarrassing predicament, either to violate their faith with their public creditors, or to resort to new taxes. The latter alternative was preferred, accompanied with other strong coercive measures to enforce obedience. A land tax was laid for two millions of dollars. This measure awakened the people to a sense of their situation; and shook to the foundation all those federal ramparts which had been planned with so much ingenuity, and erected around the Executive with so much expense and labor. Another circumstance peculiarly favorable to the advocates of Executive patronage was, that during the two first Presidential terms, the Chief Executive Magistrate possessed a greater degree of popularity and the confidence of the people than ever was, or perhaps will ever be again attached to the person occupying that dignified station. The general disquietude which manifested itself in consequence of these enterprising measures, in the year 1800, induced the Federal party to apprehend that they had pushed their principles too far, and they began to entertain doubts of the result of the Presidential election, which was approaching. In this state of things, it was natural for them to look out for some department of the Government in which they could intrench themselves in the event of an unsuccessful issue in the election, and continue to support those favorite principles of irresponsibility which they could never consent to abandon. The Judiciary Department, of course, presented itself as best fitted for their object, not only because it was already filled with men who had manifested the most indecorous zeal in favor of their principles, but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people, than either of the other departments. Accordingly, on the 11th of March, 1800, a bill for the more convenient organization of the courts of the United States, was presented to the House of Representatives. This bill appears to have had for its objects, first, the gradual demolition of the State courts, by increasing the number and extending the jurisdiction of the Federal courts. Second, to afford additional protection to the principles of the then existing Administration by creating a new corps of judges of concurring political opinions. This bill, however, was not passed into a law during that session of Congress, perhaps from an apprehension that it would tend to increase the disquietudes which other measures had before excited, and therefore operate unfavorably to the approaching Presidential election. At the next session, after the result of the late election was ascertained, the bill, after having undergone some considerable alterations, was passed into the law now under discussion. This law, it is now said, is inviolable and irrepealable. It is said, the independence of the judge will be thereby immolated. Yes, sir, this law is now considered as the sanctuary of the principles of the last Administration, and the tenures of the judges as the horns of inviolability within that sanctuary. He said, we are now called upon to rally round the constitution as the ark of our political safety. Gentlemen, discarding all generalizing expressions, and the spirit of the instrument, tie down all construction to the strict letter of the constitution. He said, it gave him great pleasure to meet gentlemen on this ground, and the more so, because he had long been in the habit of hearing very different language from the same gentlemen. He had long been in the habit of hearing the same gentlemen speak of the expressions of "the common defence and the general welfare," as the only valuable part of the constitution; that they were sufficient to obliterate all specifications and limitations of power. That the constitution was a mere nose of wax, yielding to every impression it received. That every "opening wedge" which was driven into it, was highly beneficial in severing asunder the limitations and restrictions of power. That the republicanism it secured, meant any thing or nothing. It gave him, therefore, great pleasure at this time to obey the injunctions of gentlemen in rallying round the constitution as the ark of our political safety, and of interpreting it in by the plain and obvious meaning and letter of the specified powers. But, he said, as if it was always the unfortunate destiny of these gentlemen to be upon extremes, they have now got round to the opposite extreme point of the political compass, and even beyond it. For, he said, they not only tie down all construction to the letter of the instrument, but they tell us that they see, and call upon us also to see written therein, in large capital characters, "the independence of judges;" which, to the extent they carry the meaning of the term, is neither to be found in the letter or spirit of that instrument, or in any other political establishment, he believed, under the sun. Mr. G. said he rejoiced that this subject was now to be discussed; he thought the crisis peculiarly auspicious for the discussion. He said the European world, with which the United States have the most relations, is now tranquillized. The tremendous scenes of blood and revolution which had agitated that portion of the globe, had at length subsided into profound peace; and had left mankind in silent amazement, to retrospect the wonderful events which were passed; and he hoped, with calm deliberation, to improve the lessons they had furnished for the benefit of mankind in time to come. The interests and sympathies, which the people of the United States felt in these events, no longer turn their attention from their internal concerns; arguments of the highest consideration for the safety of the constitution and the liberty of the citizens, no longer receive the short reply, French partisans! Jacobins! Disorganizers! And although the gentleman from North Carolina sees, or thinks he sees, the destructive spirit mount in the whirlwind and direct the storm, let him be consoled by the information, "that all these, our actors, are mere spirits, and are dissolved into thin air." Yes, sir, these magical delusions are now vanished, and have left the American people and their Congress, in their real persons, and original American characters, engaged in the transaction of American concerns. He said he would now proceed to examine whether the repeal of the Judiciary law of the last session of Congress would in any respect violate that salutary and practicable independence of the judges which was secured to them by the constitution. He said the terms _independence of Judges or of the Judiciary Department_ was not to be found in the constitution. It was therefore a mere inference from some of the specified powers. And he believed, in the meaning of gentlemen, and to the extent they carry it, that the term is not to be found either in the spirit, general character, or phraseology, of any article or section of the constitution. He meant to give the constitution the most candid interpretation in his power, according to the plain and obvious import of the English language. He should discard, in his interpretation, the terms "common defence and general welfare," which had been resorted to by some gentlemen. He considered these words as containing no grant of power whatever but merely the expression of the ends or objects to be effected by the grants of specified powers. He therefore protested against drawing any aid whatever from them in his construction of the instrument. He said he had read through the whole constitution, to enable him to form his opinion upon this question, for fear there might be in some hidden corner of it some provision which might demonstrate the unconstitutionality of the present bill; and if so, (although he should lament such a provision,) he would instantly give up the bill. But his researches had terminated in a different result. He said he found, from the general character of the constitution, that the general will was its basis, the general good its object, and the fundamental principle for effecting this object was the responsibility of all public agents, either mediately or immediately to the people. He said the context of the constitution would demonstrate the two first points, which he begged to read: "We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here we find the constitution founded upon the will of the people, and the object declared to be the good of the people. Through the whole body of the constitution may be discerned the responsibility of all public agents, either mediately or immediately, to the people. This responsibility results, first, from the division of authority into different departments; secondly, from a specification and limitation of the authorities of all and each of the departments; thirdly, from periodical appointments of the public agents. The first clause declares there shall be a Congress, to whom the business of legislation is confided. This Congress is to consist of a House of Representatives, to be chosen by the people immediately, and responsible to them at the end of every two years; and a Senate, to be chosen by the Legislatures of the different States, who are chosen by the people--one-third of the Senators to be chosen every two years, and responsible at the end of every six years. The Executive power is vested in a President, who is chosen by electors, who are chosen for the express purpose by the people, and responsible at the end of every four years. The President may be considered as immediately responsible to the people, although chosen through the medium of electors; because it is found, in practice, that the electors are constrained to avow the vote they intend to give before they are chosen, and the people have generally made their elections with a view to that object. Thus, then, are formed two departments, their powers specified and defined, the times for extending their powers fixed, and indeed a complete organization for the execution of their respective powers, without the intervention of any law for that purpose. A third department, to wit, the Judiciary Department, is still wanting. Is that formed by the constitution? How is that to be formed? It is not formed by the constitution. It is only declared that there shall be such a department; and it is directed to be formed by the other two departments, who owe a responsibility to the people. Here there arises an important difference of opinion between the different sides of this House. It is contended on one side that the Judiciary Department is formed by the constitution itself. It is contended on the other side, that the constitution does no more than to declare that there shall be a Judiciary Department, and directs that it shall be formed by the other two departments, under certain modifications. Article third, section first, the constitution has these words: "The Judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress shall from time to time ordain and establish." Here, then, the power to ordain and establish inferior courts is given to Congress in the most unqualified terms, and also to ordain and establish "one Supreme Court." The only limitation upon the power of Congress in this clause, consists in the number of supreme courts to be established; the limitation is to the number of one, although that is an affirmative and not a negative expression. The number of judges, the assignation of duties, the fixing compensations, the fixing the times when, and places where, the courts shall exercise their functions, &c., are left to the entire discretion of Congress. The spirit, as well as the words of the constitution, are completely satisfied, provided one Supreme Court be established. Hence, when all these essential points in the organization and formation of courts are intrusted to the unlimited discretion of Congress, it cannot be said that the courts are formed by the constitution. For further restraints, therefore, upon the discretion of Congress, the remaining part of the same section must be consulted. Here he begged leave to remark, that he had often felt a veneration for the wisdom of the sages who formed this constitution; considering the difficulties they had to encounter, resulting from the various local prejudices and local interests of the different parts of the United States, and the vast variety of opinions which the subject presented, it was almost wonderful to conceive how they should have hit upon a system so admirably calculated to protect and to promote the general interests, when administered according to its original meaning and intention. He could not go so far as to say it was perfect. He admitted, like other human productions, it was stamped with the common fallibility of man. That he wished, however, to see no radical changes in its principles. He wished to hand it down to posterity with those amendments only which experience should suggest, and which would grow out of the continually varying state of the nation. He said it was not only remarkable for the wisdom of its arrangements, but the correct and technical mode of expression. The part of the section now to be examined, was an example of the justice of both these remarks. The words are, "the judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." The first part of the sentence respects the relationship between the Executive and the Judiciary Departments. It respects judges or officers of the courts who are appointed by the President. The last part of the sentence respects the relationship between the Legislative and Judiciary Departments. It respects the creation of offices, the fixing the compensation of the officers or judges, and their continuance in office. These are the peculiar attributes of the Legislative Department. Accordingly, the most correct and technical words are used in relation to both these objects. The term "hold their offices during good behavior," relates merely to the Executive Department. The term "hold," is the common technical word used to convey the idea of tenure. Tenure requires two parties. The one granting, the other holding or receiving the grant. Let the inquiry be made, of whom do the judges hold? The constitution furnishes the answer, of the President. One of the most obvious rules in the construction of instruments of writing is, that the whole of it must be taken together, and not one particular part by itself. The following words will be found in the second section of the second article of the constitution: "And he (to wit, the President) shall nominate, and, by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." In the third section of the same article, are these words: "And shall (to wit, the President) commission all the officers of the United States." These three sentences contain the relationship between the Executive and Judiciary Departments, so far as respects the objects of the present discussion. To ascertain the real meaning and import of these sentences, they should be read in connection with each other, excluding therefrom all intermediate words not immediately bearing on the subject. In that case the constitution would read thus: "He (to wit, the President) shall nominate and appoint the Judges of the Supreme Court, and all other officers of the United States, and shall commission all the officers of the United States. The judges both of the supreme and inferior courts shall hold their offices during good behavior." It may now be asked, if this case of the judges of the supreme and inferior courts be not an obvious exception out of the general Presidential discretion of appointing and commissioning all officers of the United States during pleasure? After the Government has been in operation above twelve years, and the principle of commissioning all Executive officers during pleasure, has been practised upon during the whole of the period by the Executive, as well as the Legislative Department, the propriety of that practice is for the first time now become questionable. It is said that the right to commission during pleasure, is by implication. It is readily admitted that there are no express words in the constitution to that effect; but the inference from the words which are there, is almost as strong as the words themselves, if they had been inserted. The President is authorized, without limitation, to "commission all the officers of the United States." The question arises, by what tenure? The reply is, according to his pleasure or discretion. It was not difficult to foresee, that if the President was fully empowered to commission as he pleased, he would please to commission during his pleasure. The Legislature has no more control over an officer who holds an Executive commission during the pleasure of the President, than over a Judicial officer holding his office during good behavior. The remedy given by the constitution being the same in both cases, to wit, impeachment. Nor is there any reason why the office of the one should be less subject to the discretion of the Legislature, than the office of the other; and it seems to be universally agreed, that although the Legislature cannot deprive an Executive officer of his office in any other way than by impeachment, during the continuance of such office, yet the office itself is always subject to be abolished. The same reasoning will hold with equal force respecting a judge and a Judicial office. The reason why the Executive is proscribed from the removal of a judge, is to secure to the judge a complete independence of the President, who is not responsible for the discharge of Judicial duties; but the removal is perfectly correct in the case of an Executive officer, because the President is highly responsible for the due discharge of Executive duties. The Legislature is not responsible for either, and of course stands in the same constitutional relation to both. This appears obvious from furnishing to the Legislature the same means of removing both, as will appear by the fourth section of the second article, in the following words: "The President, Vice President, and all civil officers of the United States, shall be removed from office by impeachment for, and conviction of treason, bribery, or other high crimes or misdemeanors." He now begged to call the attention of the committee particularly to the last clause of the sentence, which ascertains the constitutional connection between the Legislative and Judicial Departments, so far as respects the limitation of the Legislative, in the exercise of the power committed to it, for the organization of the Judicial Department. He should place particular emphasis on these words of the constitution in the exposition he proposed to make. The words are: "And shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." The first part of this section having given to Congress the power of creating courts, ascertaining the number of judges, &c., these last words may be considered as containing explanations and limitations of the general power of Congress, as was the foregoing part of this sentence a limitation of the general Executive power. And accordingly the most correct terms are used for limiting Legislative discretion, and explaining its objects; according to the words of this sentence, the judge is to receive a compensation for his services. To whom are these services to be rendered? To the people, for the benefit of the people. Who is to judge of the necessity or utility of these services? The constitution has ordained, that Congress, or, in other words, the Representatives of the people, shall be the tribunal. Suppose there should be no services required, none for the judge to perform, and that Congress should so think and determine: is the judge entitled to compensation? He is not. The condition of service for the benefit of the people, is the express consideration upon which the compensation accrues. No service is rendered, the competent tribunal says, there is none required, of course no compensation accrues. The judge is entitled to receive none. On this point, an obvious and most important difference of opinion exists between the two sides of the committee. On one side it is contended, that the office is the vested property of the judge, conferred on him by his appointment, and that his good behavior is the consideration of his compensation; so long, therefore, as his good behavior exists, so long his office must continue in consequence of his good behavior, and that his compensation is his property in virtue of his office, and therefore cannot be taken away by any authority whatever, although there may be no service for him to perform. On the other side, it is contended that the good behavior is not the consideration upon which the compensation accrues, but services rendered for the public good; and that if the office is to be considered as a property, it is a property held in trust for the benefit of the people, and must therefore be held subject to that condition, of which Congress is the constitutional judge. Mr. G. said, considering the boundary line between these conflicting opinions to be the boundary line between the offices held for public utility, and offices held for personal favor, he could not bestow too much attention upon this part of the discussion; for if the construction gentlemen contend for should prevail, in vain have the framers of the constitution, with so much jealous circumspection, erected so many ramparts against the introduction of some of these offices in the Government of the United States. A sinecure office is an office held without the condition of service; often for past services already compensated; often for present favor, without the condition of any service. For the purpose of excluding from the Federal Government all sinecure offices, the sages who formed the constitution have through every part of it connected services and compensation, and they ought never to be separated in construction. The sixth section of the first article is in these words: "The Senators and Representatives shall receive a compensation for their services, to be ascertained by law," &c., and so far has this principle of the rendition of service been carried, that the service of the Senate and Representatives is to be rendered every day, and unless they do daily render service, they are not entitled to their day's compensation. In the first section of the second article of the constitution, are these words: "The President shall, at stated times, receive for his services a compensation," &c. In the forty-first section of the act under which the judges claim their compensation, are these words: "That each of the circuit judges of the United States, to be appointed by virtue of this act, shall be allowed as a compensation for his services," &c. These expressions all demonstrate the importance of coupling the service and compensation of office. But the jealous caution of the framers of the constitution did not stop at choosing the best affirmative expression for excluding this doctrine of sinecure offices, they also applied negative restraints. In the ninth section of the first article of the constitution, are these words, "No money shall be drawn from the Treasury but in consequence of appropriations made by law." In the same section, "No title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them, shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign State." If then services rendered for the public benefit be the essential consideration, upon which the compensation does accrue to the judges; if the Congress be the proper tribunal for pronouncing upon the necessity or utility of such service, and if they decide that no such service is necessary or useful; the judge sustains no injury in not receiving the compensation, because he does not comply with the condition on his part; nor does he sustain a hardship thereby, because it must be presumed that he understood the second conditions attached to his office at the time of his acceptance. It has been admitted by all gentlemen, that Congress is the constitutional tribunal for deciding respecting the services to be performed. They admit that Congress may modify the courts, diminish or add to their duties, alter the terms of their sessions, or make any other arrangements respecting them which do not go to take away or diminish their compensations. It is to be observed that there is not one of these powers specified in the constitution; they are therefore necessary inferences from the paramount power "to ordain and establish," and the power of repeal, or to take away all the services to be performed, is as necessary an inference as either of the others, and has uniformly resulted from every other specified power in the constitution. From this part of the sentence, therefore, it is deducible, that the only restraint upon the general power given to Congress in the first part of the section to ordain and establish courts, is, that the compensations of the judges should not be lessened during their continuance in office; not during their good behavior. And in this part of the sentence the correct phraseology of the constitution is worthy of observation. In speaking of the Executive attribute, to wit, the appointing and commissioning officers, the term _good behavior_ is used. In speaking of the Legislative attribute, to wit, the creation of the offices and fixing compensations, the term _during their continuance in office_ is used. The reason for this variation of expression is obvious. It was known that the office might be discontinued, and the judge continue to behave well; the limitation was therefore applied to the office, and not the good behavior, because if the office should be discontinued, which is clearly implied in this expression, it was not the intention of the constitution that the compensation should be received, no service in that event being to be rendered. From this interpretation of the constitution, all of the departments are preserved in the due exercise of their respective functions for the general good, without any of the mischievous and absurd consequences resulting from the opposite construction. It is admitted that the first part of this section expressly vests Congress with the general power to ordain and establish courts; and, if there had been no other restriction, the consequent power to unordain, or abolish. The restriction relied upon is not a restriction in express words: there are no words in the constitution prohibiting Congress from repealing a law for organizing courts; the restraint contended for, therefore, is by implication, and that implication, to say the least, not expressly connected with any Legislative attribute. Is it right, is it a correct interpretation, that when a power is given in express words for the most important purposes, that it should be restrained or prohibited by implication? Can so much inattention and folly be attributed to the framers of the constitution, as would result from the supposition that if it was their intention that a law growing out of one of the specified powers, in contradistinction to all others, should be irrepealable when once passed, that so extraordinary a principle would be left to mere implication? Such a supposition would be the highest injustice to the superior intelligence and patriotism of those gentlemen, manifested in every other part of the instrument. No, sir, they would have made notes of admiration: they would have used every mark, adopted every caution, to have arrested and fixed the attention of the Legislature to so extraordinary a principle. They would have said, Legislators! Be circumspect! Be cautious! Be calm! Be deliberate! Be wise! Be wise not only for the present, but be wise for posterity! You are now about to tread upon holy ground. The law you are now about to pass, is irrepealable! Irrevokable! We are so enamored with the salutary and practical independence of the English Judiciary system, that in infusing its principle into our constitution, we have stamped it with the proverbial folly of the Medes and Persians! If this principle had been introduced into the constitution in express words, it would have formed an unfortunate contrast to all other parts of the instrument; yet gentlemen make no difficulty in introducing that principle by construction, which would have appeared so stupid and absurd if written in express words in the body of the instrument. But there is no such language in the constitution. Let us see what is the language of that instrument, "The Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish." Here, then, instead of cautioning the Legislature that a law for the organization of courts, when passed, can never be repealed, it contains an invitation to a revision from time to time. It contains an intimation, that the subject is new and difficult, and an injunction to ordain and establish your courts from time to time, according to the results, which an experience of the system alone could suggest. The gentleman from Pennsylvania (Mr. HEMPHILL) observed that the character of irrepealability was not exclusively attached to this law, and attempted to furnish instances of other laws of the same character. He instanced a law for the admission of a new State into the Union. The gentleman from Kentucky (Mr. DAVIS) had given a proper reply to that remark; the strongest instance the gentleman gave, was of a law executed. After the new State is remitted into the Union, in virtue of a law for that purpose, the object of the law is answered. The State admitted has no stipulated duties to perform on its part, no services to render; in the case before the committee the law is in a state of execution, and the judges have services to render on their part which the competent tribunals may determine to be neither useful nor necessary. A law for the appropriation of money to a given object, may be adduced is an instance; the money is applied; its object is answered; the law may be said to be irrepealable, or, in other words, the repeal would produce no effect. That is not the case of the law in question. Mr. G. said he had no doubt but that the framers of the constitution had particular reference to the British act of Parliament of William III. for the establishment of the independence of the judges in that country, in framing the section for the establishment of the Judicial Department in the United States; and it is not a little remarkable, that whilst gentlemen in one breath speak of the independence of the English judges, as the boast and glory of that nation, in the next breath they tell us that by the repeal of the present act, the independence of the judges here would be immolated. Let this subject be examined. In the third chapter of the first book of Blackstone's Commentaries, the independence of the English Judiciary is fully explained. He begged to read the exposition of that commentator on that subject. "And, in order to maintain both the dignity and independence of the judges of the superior courts, it is enacted by the statute, 13 W. III. c. 2, that their commissions shall be made (not, as formerly, _durante bene placito_, but) _quam diu bene se gesserint_, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both Houses of Parliament. And now, by the noble improvements of that law in the statute of Geo. III. c. 23, enacted at the earnest recommendation of the King himself, from the Throne, the judges are continued in their offices during their good behavior, notwithstanding any demise of the Crown, (which was formerly held immediately to vacate their seats,) and their full salaries are absolutely secured to them during the continuance of their commissions. His Majesty having been pleased to declare, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as the most conducive to the honor of the Crown."" Now, sir, under the doctrine contended for by the repeal of this law, let us see whether the judges of the United States are not more independent than the judges of England. In the first place, Congress have the power of originating, abolishing, modifying, &c., the courts here. The Parliament in England have the same power there. Congress cannot remove a judicial officer from his office so long as the office itself is deemed useful, except by impeachment, two-thirds of the Senate being necessary to a conviction. In England, judges can be removed from their offices, although the offices may be deemed useful, by an address of the majority of the two Houses of Parliament. Here then is one essential advantage in favor of the independence of the judges of the United States. Congress cannot diminish the compensation of the judges here during their continuance in office. In England, the Parliament may diminish the compensation of the judges, at their discretion, during their continuance in office. Here, then, is another obvious advantage in favor of the independence of the judges of the United States; whence is it, then, that we hear of the independence of the English judiciary, as being the boast and glory of that country, and with justice, too, and at the same time hear the cry of the immolation of the independence of the judges of the United States, when, under the interpretation of the constitution by the favorers of the repeal, the judges here are more independent than the English judges? It can have no other object than to excite a popular clamor, which, if excited at all, can have only a momentary effect, and will be dissipated as soon as the subject shall be thoroughly examined and understood. But it appeared to him, that if gentlemen really do value the independence of the judges, they have taken an unfortunate ground in the interpretation of the constitution. Under their construction, the judges may be placed not only in a dependent, but a ludicrous point of view. Gentlemen admit that Congress may constitutionally increase or diminish the duties of judges; give or take away jurisdiction; fix the times of holding courts, &c., saving therefrom the salaries of the judges. Under this admission, Congress may postpone the sessions of the courts for eight or ten years, and establish others, to whom they could transfer all the powers of the existing courts. In this case, the judges would be held up to the people as pensioners, receiving their money and rendering no service in return; or Congress might convert them into mere courts of piepoudre, assigning them the most paltry duties to perform, and keep them continually in session, in inconvenient places; whilst new courts could be erected to perform all the essential business of the nation. This would be taking down the high pretensions assigned to the judges by the gentleman from North Carolina, (Mr. HENDERSON,) of being formed into a permanent corps for the purpose of protecting the people against their worst enemies, themselves; and degrading them into pitiful courts of piepoudre, rendering little service and receiving large compensations. And this would be the case, if party purposes were the object, and not the general good. According to his construction, these absurd results could not take place, unless by a virtual breach of the constitution. Because, he contended, that service and compensation were correlative terms; and that there ought always to be a due apportionment of service to compensation. This he considered as the plain and sound interpretation of the constitution, and the moment it is departed from, infinite absurdities ensue. He intended to have taken another view of this subject, as it respects the relative influence of the law of the last session, and the proposed repeal upon this question; but the gentleman from Massachusetts (Mr. BACON) has put this subject in so much stronger point of view than he could do, that he would refer to his remarks thereupon, observing only that he had no doubt but that the law of last session, now proposed to be repealed, was, in every respect, as much opposed to the doctrine of gentlemen, as the contemplated repeal could be. The sections of the law particularly alluded to, are the twenty-fourth, in these words, "and be it further enacted, that the district courts of the United States, in and for the districts of Tennessee and Kentucky, shall be and are hereby abolished," and the twenty-seventh, in these words, "and be it further enacted, that the circuit courts of the United States, heretofore established, shall cease and be abolished." Mr. G. concluded by observing that, upon the whole view of the subject, feeling the firmest conviction that there is no constitutional impediment in the way of repealing the act in question, upon the most fair and candid interpretation of the constitution:--believing that principles advanced in opposition, go directly to the destruction of the fundamental principle of the constitution, the responsibility of all public agents to the people--that they go to the establishment of a permanent corporation of individuals invested with ultimate censorial and controlling power over all the departments of the Government, over legislation, execution, and decision, and irresponsible to the people; believing that these principles are in direct hostility to the great principle of Representative Government; believing that the courts formerly established, were fully competent to the business they had to perform, and that the present courts are useless, unnecessary, and expensive; believing that the Supreme Court has heretofore discharged all the duties assigned to it in less than one month in the year, and that its duties could be performed in half that time; considering the compensations of the judges to be among the highest given to any of the highest officers of the United States for the services of the whole year; considering the compensations of all the judges greatly exceeding the services assigned them, as well as considering all the circumstances attending the substitution of the new system for the old one, by increasing the number of judges, and compensations, and lessening their duties by the distribution of the business into a great number of hands, &c., while acting under these impressions, he should vote against the motion now made for striking out the first section of the repealing bill. FRIDAY, February 19. _Judiciary System._ The House again resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act to repeal certain acts respecting the organization of the Courts of the United States, and for other purposes." Mr. BAYARD.--Mr. Chairman, I must be allowed to express my surprise at the course pursued by the honorable gentleman from Virginia, (Mr. GILES,) in the remarks which he has made on the subject before us. I had expected that he would have adopted a different line of conduct. I had expected it as well from that sentiment of magnanimity which ought to have been inspired by a sense of the high ground he holds on the floor of this House, as from the professions of a desire to conciliate, which he has so repeatedly made during the session. We have been invited to bury the hatchet, and brighten the chain of peace. We were disposed to meet on middle ground. We had assurances from the gentleman that he would abstain from reflections on the past, and his only wish was that we might unite in future in promoting the welfare of our common country. We confided in the gentleman's sincerity, and cherished the hope that, if the divisions of party were not banished from the House, its spirit would be less intemperate. Such were our impressions, when the mask was suddenly thrown aside, and we saw the torch of discord lighted and blazing before our eyes. Every effort has been made to revive the animosities of the House, and inflame the passions of the nation. I am at no loss to perceive why this course has been pursued. The gentleman has been unwilling to rely upon the strength of his subject, and has therefore determined to make the measure a party question. He has probably secured success, but would it not have been more honorable and more commendable to have left the decision of a great constitutional question to the understanding, and not to the prejudices of the House? It was my ardent wish to discuss the subject with calmness and deliberation, and I did intend to avoid every topic which could awaken the sensibility of party. This was my temper and design when I took my seat yesterday. It is a course at present we are no longer at liberty to pursue. The gentleman has wandered far, very far, from the points of the debate, and has extended his animadversions to all the prominent measures of the former administrations. In following him through his preliminary observations, I necessarily lose sight of the bill upon your table. The gentleman commenced his strictures with the philosophic observation, that it was the fate of mankind to hold different opinions as to the form of government which was preferable. That some were attached to the monarchal, while others thought the republican more eligible. This, as an abstract remark, is certainly true, and could have furnished no ground of offence, if it had not evidently appeared that an allusion was designed to be made to the parties in this country. Does the gentleman suppose that we have a less lively recollection than himself of the oath which we have taken to support the constitution; that we are less sensible of the spirit of our Government, or less devoted to the wishes of our constituents? Whatever impression it might be the intention of the gentleman to make, he does not believe that there exists in this country an anti-republican party. He will not venture to assert such an opinion on the floor of this House. That there may be a few individuals having a preference for monarchy is not improbable; but will the gentleman from Virginia, or any other gentleman, affirm, in his place, that there is a party in the country who wish to establish a monarchy? Insinuations of this sort belong not to the Legislature of the Union. Their place is an election ground or an alehouse. Within these walls they are lost; abroad, they have an effect, and I fear are still capable of abusing the popular credulity. We were next told of the parties which have existed, divided by the opposite views of promoting the Executive power and guarding the rights of the people. The gentleman did not tell us in plain language, but he wished it to be understood, that he and his friends were the guardians of the people's rights, and that we were the advocates of Executive power. I know that this is the distinction of party which some gentlemen have been anxious to establish; but this is not the ground on which we divide. I am satisfied with the constitutional powers of the Executive, and never wished nor attempted to increase them; and I do not believe that gentlemen on the other side of the House ever had a serious apprehension of danger from an increase of Executive authority. No, sir, our views as to the powers which do and ought to belong to the General and State Governments, are the true sources of our divisions. I co-operate with the party to which I am attached, because I believe their true object and end, is an honest and efficient support of the General Government, in the exercise of the legitimate powers of the constitution. I pray to God I may be mistaken in the opinion I entertain as to the designs of gentlemen to whom I am opposed. Those designs I believe hostile to the powers of this Government. State pride extinguishes a national sentiment. Whatever is taken from this Government is given to the States. The ruins of this Government aggrandize the States. There are States which are too proud to be controlled; whose sense of greatness and resource renders them indifferent to our protection, and induces a belief, that if no General Government existed, their influence would be more extensive, and their importance more conspicuous. There are gentlemen who make no secret of an extreme point of depression, to which the Government is to be sunk. To that point we are rapidly progressing. But I would beg gentlemen to remember, that human affairs are not to be arrested in their course, at artificial points. The impulse now given may be accelerated by causes at present out of view. And when those who now design well, wish to stop, they may find their powers unable to resist the torrent. It is not true that we ever wished to give a dangerous strength to Executive power. While the Government was in our hands, it was our duty to maintain its constitutional balance, by preserving the energies of each branch. There never was an attempt to vary the relation of its powers. The struggle was to maintain the constitutional powers of the Executive. The wild principles of French liberty were scattered through the country. We had our Jacobins and disorganizers. They saw no difference between a King and a President, and as the people of France had put down their King, they thought the people of America ought to put down their President. They who considered the constitution as securing all the principles of rational and practical liberty, who were unwilling to embark upon the tempestuous sea of revolution, in pursuit of visionary schemes, were denounced as monarchists. A line was drawn between the Government and the people, and the friends of the Government were marked as the enemies of the people. I hope, however, that the Government and the people are now the same; and I pray to God that what has been frequently remarked may not in this case be discovered to be true, that they who have the name of people the most often in their mouths, have their true interests the most seldom at their hearts. The honorable gentleman from Virginia wandered to the very confines of the Federal Administration, in search of materials the most inflammable and most capable of kindling the passions of his party. He represents the Government as seizing the first moment which presented itself to create a dependent moneyed interest, ever devoted to its views. What are we to understand by this remark of the gentleman? Does he mean to say that Congress did wrong in funding the public debt? Does he mean to say that the price of our liberty and independence ought not to have been paid? Is he bold enough to denounce this measure as one of the Federal victims marked for destruction? Is it the design to tell us that its day has not yet come, but is approaching; and that the funding system is to add to the pile of Federal ruins? Do I hear the gentleman say we will reduce the army to a shadow; we will give the navy to the worms; the mint, which presented the people with the emblems of their liberty, and of their sovereignty, we will abolish; the revenue shall depend upon the winds and waves; the judges shall be made our creatures, and the great work shall be crowned and consecrated by relieving the country from an odious and oppressive public debt? These steps, I presume, are to be taken in progression. The gentleman will pause at each, and feel the public pulse. As the fever increases he will proceed, and the moment of delirium will be seized to finish the great work of destruction. The assumption of the State debts has been made an article of distinct crimination. It has been ascribed to the worst motives--to a design of increasing a dependent moneyed interest. Is it not well known that those debts were part of the price of our Revolution? That they rose in the exigency of our affairs, from the efforts of the particular States, at times when the Federal arm could not be extended to their relief? Each State was entitled to the protection of the Union, the defence was a common burden, and every State had a right to expect that the expenses attending its individual exertions in the general cause, would be reimbursed from the public purse. I shall be permitted further to add, that the United States, having absorbed the sources of State revenue, except direct taxation, which was required for the support of the State governments, the assumption of these debts was necessary to save some of the States from bankruptcy. The internal taxes are made one of the crimes of the Federal Administration. They were imposed, says the gentleman, to create a host of dependents on Executive favor. This supposes the past administrations to have been not only very wicked, but very weak. They laid taxes in order to strengthen their influence. Who is so ignorant as not to know, that the imposition of a tax would create a hundred enemies for one friend? The name of excise was odious; the details of collection were unavoidably expensive, and it was to operate upon a part of the community least disposed to support public burdens, and most ready to complain of their weight. A little experience will give the gentleman a new idea of the patronage of this Government. He will find it not that dangerous weapon in the hands of the administration which he has heretofore supposed it; he will probably discover that the poison is accompanied by its antidote, and that an appointment of the Government, while it gives to the administration one lazy friend, will raise up against it ten active enemies. No! The motive ascribed for the imposition of the internal taxes is as unfounded as it is uncharitable. The Federal Administration, in creating burdens to support the credit of the nation, and to supply the means of its protection, knew that they risked the favor of those upon whom their power depended. They were willing to be the victims when the public good required. The duties on imports and tonnage furnished a precarious revenue--a revenue at all times exposed to deficiency, from causes beyond our reach. The internal taxes offered a fund less liable to be impaired by accident--a fund which did not rob the mouth of labor, but was derived from the gratification of luxury. These taxes are an equitable distribution of the public burdens. Through this medium the Western country is enabled to contribute something to the expenses of a Government which has expended and daily expends such large sums for its defence. When these taxes were laid they were indispensable. With the aid of them it has been difficult to prevent an increase of the public debt. And notwithstanding the fairy prospects which now dazzle our eyes, I undertake to say, if you abolish them this session, you will be obliged to restore them or supply their place by a direct tax before the end of two years. Will the gentleman say, that the direct tax was laid in order to enlarge the bounds of patronage? Will he deny that this was a measure to which we had been urged for years by our adversaries, because they foresaw in it the ruin of Federal power? My word for it, no administration will ever be strengthened by a patronage united with taxes which the people are sensible of paying. We were next told, that to get an army an Indian war was necessary. The remark was extremely bald, as the honorable gentleman did not allege a single reason for the position. He did not undertake to state that it was a wanton war, or provoked by the Government. He did not even venture to deny, that it was a war of defence, and entered into in order to protect our brethren on the frontiers from the bloody scalping-knife and murderous tomahawk of the savage. What ought the government to have done? Ought they to have estimated the value of the blood which probably would be shed, and the amount of the devastation likely to be committed before they determined on resistance? They raised an army, and after great expense and various fortune, they have secured the peace and safety of the frontiers. But why was the army mentioned on this occasion, unless to fore-warn us of the fate which awaits them, and to tell us that their days are numbered? I cannot suppose that the gentleman mentioned this little army, distributed on a line of three thousand miles, for the purpose of giving alarm to three hundred thousand free and brave yeomanry, ever ready to defend the liberties of the country. The honorable gentleman proceeded to inform the committee, that the Government, availing itself of the depredations of the Algerines, created a navy. Did the gentleman mean to insinuate, that this war was invited by the United States? Has he any documents or proof to render the suspicion colorable? No, sir, he has none. He well knows that the Algerine aggressions were extremely embarrassing to the Government. When they commenced, we had no marine force to oppose to them. We had no harbors or places of shelter in the Mediterranean. A war with these pirates could be attended with neither honor nor profit. It might cost a great deal of blood, and in the end it might be feared that a contest so far from home, subject to numberless hazards and difficulties, could not be maintained. What would gentlemen have had the Government to do? I know there are those who are ready to answer: abandon the Mediterranean trade. But would this have done? The corsairs threatened to pass the Straits, and were expected in the Atlantic. Nay, sir, it was thought that our very coasts would not have been secure. Will gentlemen go further, and say that the United States ought to relinquish their commerce. It has been said that we ought to be cultivators of the earth, and make the nations of Europe our carriers. This is not an occasion to examine the solidity of this opinion; but I will only ask, admitting the administration were disposed to turn the pursuits of the people of this country from the ocean to the land, whether there is a power in the Government, or whether there would be if we were as strong as the Government of Turkey, or even of France, to accomplish the object? With a sea-coast of seventeen hundred miles, with innumerable harbors and inlets, with a people enterprising beyond example, is it possible to say, you will have no ships or sailors, nor merchants? The people of this country will never consent to give up their navigation, and every administration will find themselves constrained to provide means to protect their commerce. In respect to the Algerines, the late administration were singularly unfortunate. They were obliged to fight or pay them. The true policy was to hold a purse in one hand and a sword in the other. This was the policy of the Government. Every commercial nation in Europe was tributary to those petty barbarians. It was not esteemed disgraceful. It was an affair of calculation, and the administration made the best bargain in their power. They have heretofore been scandalized for paying tribute to a pirate, and now they are criminated for preparing a few frigates to protect our citizens from slavery and chains! Sir, I believe on this and many other occasions, if the finger of Heaven had pointed out a course, and the Government had pursued it, yet that they would not have escaped the censure and reproaches of their enemies. We were told that the disturbances in Europe were made a pretext for augmenting the army and navy. I will not, Mr. Chairman, at present go into a detailed view of the events which compelled the Government to put on the armor of defence, and to resist by force the French aggressions. All the world know the efforts which were made to accomplish an amicable adjustment of differences with that power. It is enough to state, that ambassadors of peace were twice repelled from the shores of France with ignominy and contempt. It is enough to say, that it was not till after we had drunk the cup of humiliation to the dregs, that the national spirit was roused to a manly resolution, to depend only on their God and their own courage for protection. What, sir, did it grieve the gentleman that we did not crouch under the rod of the Mighty Nation, and, like the petty powers of Europe, tamely surrender our independence? Would he have had the people of the United States relinquish without a struggle those liberties which had cost so much blood and treasure? We had not, sir, recourse to arms, till the mouths of our rivers were choked with French corsairs; till our shores, and every harbor, were insulted and violated; till half our commercial capital had been seized, and no safety existed for the remainder but the protection of force. At this moment a noble enthusiasm electrized the country; the national pulse beat high, and we were prepared to submit to every sacrifice, determined only that our independence should be the last. At that time an American was a proud name in Europe; but I fear, much I fear, that in the course we are now likely to pursue, the time will soon arrive when our citizens abroad will be ashamed to acknowledge their country. The measures of 1798 grew out of the public feelings; they were loudly demanded by the public voice. It was the people who drove the Government to arms, and not (as the gentleman expressed it) the Government which pushed the people to the X, Y, Z of the political designs before they understood the A, B, C of their political principles. But what, sir, did the gentleman mean by his X, Y, Z? I must look for something very significant--something more than a quaintness of expression, or a play upon words--in what falls from a gentleman of his learning and ability. Did he mean that the dispatches which contained those letters were impostures, designed to deceive and mislead the people of America--intended to rouse a false spirit not justified by events? Though the gentleman had no respect for some of the characters of that embassy; though he felt no respect for the Chief Justice, or the gentleman appointed from South Carolina--two characters as pure, as honorable, as exalted, as any the country can boast of--yet I should have expected that he would have felt some tenderness for Mr. Gerry, in whom his party had since given proofs of undiminished confidence. Does the gentleman believe that Mr. Gerry would have joined in the deception, and assisted in fabricating a tale which was to blind his countrymen, and to enable the Government to destroy their liberties? Sir, I will not avail myself of the equivocations or confessions of Talleyrand himself; I say these gentlemen will not dare publicly to deny what is attested by the hand and seal of Mr. Gerry. The truth of these despatches admitted, what was your Government to do? Give us, say the Directory, 1,200,000 livres for our own purse, and purchase $15,000,000 of Dutch debt, (which was worth nothing,) and we will receive your Ministers, and negotiate for peace. It was only left to the Government to choose between an unconditional surrender of the honor and independence of the country, or a manly resistance. Can you blame, sir, the Administration for a line of conduct which has reflected on the nation so much honor, and to which, under God, it owes its present prosperity? These are the events of the General Government which the gentleman has reviewed in succession, and endeavored to render odious or suspicious. For all this I could have forgiven him, but there is one thing for which I will not, I cannot forgive him--I mean this attempt to disturb the ashes of the dead; to disturb the ashes of the great and good WASHINGTON! Sir, I might degrade by attempting to eulogize this illustrious character. The work is infinitely beyond my powers. I will only say, that as long as exalted talents and virtues confer honor among men, the name of WASHINGTON will be held in veneration. After, Mr. Chairman, the honorable member had exhausted one quiver of arrows against the late Executive, he opened another, equally poisoned, against the Judiciary. He has told us, sir, that when the power of the Government was rapidly passing from Federal hands--after we had heard the thundering voice of the people which dismissed us from their service--we erected a Judiciary, which we expected would afford us the shelter of an inviolable sanctuary. The gentleman is deceived. We knew better, sir, the characters who were to succeed us, and we knew that nothing was sacred in the eyes of infidels. No, sir, I never had a thought that any thing belonging to the Federal Government was holy in the eyes of those gentlemen. I could never, therefore, imagine that a sanctuary could be built up which would not be violated. I believe these gentlemen regard public opinion, because their power depends upon it; but I believe they respect no existing establishment of the Government; and if public opinion could be brought to support them, I have no doubt they would annihilate the whole. I shall at present only say further, on this head, that we thought the reorganization of the Judicial system a useful measure, and we consider it as a duty to employ the remnant of our power to the best advantage of our country. The honorable gentleman expressed his joy that the constitution had at last become sacred in our eyes: that we formerly held that it meant every thing or nothing. I believe, sir, that the constitution formerly appeared different in our eyes from what it appears in the eyes of the dominant party. We formerly saw in it the principles of a fair and goodly creation. We looked upon it as a source of peace, of safety, of honor, and of prosperity to the country. But now the view is changed; it is the instrument of wild and dark destruction; it is a weapon which is to prostrate every establishment to which the nation owes the unexampled blessings which it enjoys. The present state of the country is an unanswerable commentary upon our construction of the constitution. It is true that we made it mean much; and hope, sir, we shall not be taught by the present Administration that it can mean even worse than nothing. The gentleman has not confined his animadversions to the individual establishment, but has gone so far as to make the judges the subject of personal invective. They have been charged with having transgressed the bounds of Judicial duty, and become the apostles of a political sect. We have heard of their travelling about the country for little other purpose than to preach the Federal doctrines to the people. Sir, I think a judge should never be a partisan. No man would be more ready to condemn a judge who carried his political prejudices or antipathies on the bench. But I have still to learn that such a charge can be sustained against the judges of the United States. The constitution is the supreme law of the land, and they have taken pains, in their charges to grand juries, to unfold and explain its principles. Upon similar occasions they have enumerated the laws which compose our criminal code, and when some of those laws have been denounced by the enemies of the Administration as unconstitutional, the judges may have felt themselves called upon to express their judgments upon that point, and the reasons of their opinions. So far, but no farther, I believe, the judges have gone. In going thus far, they have done nothing more than faithfully discharge their duty. But if, sir, they have offended against the constitution or laws of the country, why are they not impeached? The gentleman now holds the sword of justice. The judges are not a privileged order; they have no shelter but their innocence. But, in any view, are the sins of the former judges to be fastened upon the new Judicial system? Would you annihilate a system because some men under part of it had acted wrong? The constitution has pointed out a mode of punishing and removing the men, and does not leave this miserable pretext for the wanton exercise of powers which is now contemplated. The honorable member has thought himself justified in making a charge of a serious and frightful nature against the judges. They have been represented going about searching out victims of the Sedition law. But no fact has been stated; no proof has been adduced, and the gentleman must excuse me for refusing my belief to the charge, till it is sustained by stronger and better ground than assertion. If, however, Mr. Chairman, the eyes of the gentlemen are delighted with victims, if objects of misery are grateful to his feelings, let me turn his view from the walks of the judges to the track of the present Executive. It is in this path we see the real victims of stern, uncharitable, unrelenting power. It is here, sir, we see the soldier who fought the battles of the Revolution, who spilt his blood and wasted his strength to establish the independence of his country, deprived of the reward of his services, and left to pine in penury and wretchedness. It is along this path that you may see helpless children crying for bread, and gray hairs sinking in sorrow to the grave! It is here that no innocence, no merit, no truth, no services, can save the unhappy sectary who does not believe in the creed of those in power. I have been forced upon this subject, and before I leave it, allow me to remark, that without inquiring into the right of the President to make vacancies in office during the recess of the Senate, but admitting the power to exist, yet that it never was given by the constitution to enable the Chief Magistrate to punish the insults, to revenge the wrongs, or to indulge the antipathies of the man. If the discretion exists, I have no hesitation in saying that it is abused when exercised from any other motives than the public good. And when I see the will of a President precipitating from office men of probity, knowledge, and talents, against whom the community has no complaint, I consider it as a wanton and dangerous abuse of power. And when I see men who have been the victims of this abuse of power, I view them as the proper objects of national sympathy and commiseration. Among the causes of impeachment against the judges, is their attempt to force the sovereignties of the States to bow before them. We have heard them called an ambitious body politic; and the fact I allude to has been considered as full proof of the inordinate ambition of the body. Allow me to say, sir, the gentleman knows too much not to know that the judges are not a body politic. He supposed, perhaps, there was an odium attached to the appellation, which it might serve his purposes to connect with the judges. But, sir, how do you derive any evidence of the ambition of the judges from their decision that the States under our Federal compact were compellable to do justice? Can it be shown, or even said, that the judgment of the court was a false construction of the constitution? The policy of later times on this point has altered the constitution, and, in my opinion, has obliterated its fairest features. I am taught by my principles that no power ought to be superior to justice. It is not that I wish to see the States humbled in dust and ashes; it is not that I wish to see the pride of any man flattered by their degradation; but it is that I wish to see the great and the small, the sovereign and the subject, bow at the altar of justice, and submit to those obligations from which the Deity himself is not exempt. What was the effect of this provision in the constitution? It prevented the States being the judges in their own cause, and deprived them of the power of denying justice. Is there a principle of ethics more clear than that a man ought not to be a judge in his own cause, and is not the principle equally strong when applied not to one man but to a collective body? It was the happiness of our situation which enabled us to force the greatest State to submit to the yoke of justice, and it would have been the glory of the country in the remotest times, if the principle in the constitution had been maintained. What had the States to dread? Could they fear injustice when opposed to a feeble individual? Has a great man reason to fear from a poor one? And could a potent State be alarmed by the unfounded claim of a single person? For my part I have always thought that an independent tribunal ought to be provided to judge on the claims against this Government. The power ought not to be in our own hands. We are not impartial, and are therefore liable, without our knowledge, to do wrong. I never could see why the whole community should not be bound by as strong an obligation to do justice to an individual, as one man is bound to do it to another. In England the subject has a better chance for justice against the Sovereign than in this country a citizen has against a State. The Crown is never its own arbiter, and they who sit in judgment have no interest in the event of their decision. The judges, sir, have been criminated for their conduct in relation to the Sedition act, and have been charged with searching for victims who were sacrificed under it. The charge is easily made, but has the gentleman the means of supporting it? It was the evident design of the gentleman to attach the odium of the Sedition law to the Judiciary; on this score the Judges are surely innocent. They did not pass the act; the Legislature made the law, and they were obliged by their oaths to execute it. The judges decided the law to be constitutional, and I am not now going to agitate the question. I did hope, when the law passed, that its effect would be useful. It did not touch the freedom of speech, and was designed only to restrain the enormous abuses of the press. It went no farther than to punish malicious falsehoods, published with the wicked intention of destroying the Government. No innocent man ever did or could have suffered under the law. No punishment could be inflicted till a jury was satisfied that a publication was false, and that the party charged, knowing it to be false, had published it with an evil design. The misconduct of the judges, however, on this subject, has been considered by the gentleman the more aggravated, by an attempt to extend the principles of the Sedition act, by an adoption of those of the common law. Connected with this subject, such an attempt was never made by the judges. They have held, generally, that the Constitution of the United States was predicated upon an existing common law. Of the soundness of that opinion, I never had a doubt. I should scarcely go too far, were I to say, that, stripped of the common law, there would be neither constitution nor Government. The constitution is unintelligible without reference to the common law. And were we to go into our courts of justice with the mere statutes of the United States, not a step could be taken, not even a contempt could be punished. Those statutes prescribe no forms of pleadings; they contain no principles of evidence; they furnish no rule of property. If the common law does not exist in most cases, there is no law but the will of the judge. I have never contended that the whole of the common law attached to the constitution, but only such parts as were consonant to the nature and spirit of our Government. We have nothing to do with the law of the Ecclesiastical Establishment, nor with any principle of monarchical tendency. What belongs to us, and what is unsuitable, is a question for the sound discretion of the judges. The principle is analogous to one which is found in the writings of all jurists and commentators. When a colony is planted, it is established subject to such parts of the law of the mother country as are applicable to its situation. When our forefathers colonized the wilderness of America, they brought with them the common law of England. They claimed it as their birthright, and they left it as the most valuable inheritance to their children. Let me say, that this same common law, now so much despised and vilified, is the cradle of the rights and liberties which we now enjoy. It is to the common law we owe our distinction from the colonists of France, of Portugal, and of Spain. How long is it since we have discovered the malignant qualities which are now ascribed to this law? Is there a State in the Union which has not adopted it, and in which it is not in force? Why is it refused to the Federal Constitution? Upon the same principle that every power is denied which tends to invigorate the Government. Without this law the constitution becomes, what perhaps many gentlemen wish to see it, a dead letter. For ten years it has been the doctrine of our courts, that the common law was in force, and yet can gentlemen say, that there has been a victim who has suffered under it? Many have experienced its protection, none can complain of its oppression. In order to demonstrate the aspiring ambition of this body politic, the Judiciary, the honorable gentleman stated with much emphasis and feeling that the judges had been hardy enough to send their mandate into the Executive cabinet. Was the gentleman, sir, acquainted with the fact when he made this statement? It differs essentially from what I know I have heard upon the subject. I shall be allowed to state the fact. Several commissions had been made out by the late Administration for justices of the peace of this Territory. The commissions were complete; they were signed and sealed, and left with the clerks of the office of State to be handed to the persons appointed. The new Administration found them on the Clerk's table, and thought proper to withhold them. These officers are not dependent on the will of the President. The persons named in the commissions considered that their appointments were complete, and that the detention of their commissions was a wrong, and not justified by the legitimate authority of the Executive. They applied to the Supreme Court for a rule upon the Secretary of State, to show cause why a mandamus should not issue, commanding him to deliver up the commissions. Let me ask, sir, what could the judges do? The rule to show cause was a matter of course upon a new point, at least doubtful. To have denied it, would have been to shut the doors of justice against the parties. It concludes nothing, neither the jurisdiction nor the regularity of the act. The judges did their duty; they gave an honorable proof of their independence. They listened to the complaint of an individual against your President, and have shown themselves disposed to grant redress against the greatest man in the Government. If a wrong has been committed, and the constitution authorizes their interference, will gentlemen say that the Secretary of State, or even the President, is not subject to law? And if they violate the law, where can we apply for redress but to our courts of justice? But, sir, it is not true that the judges issued their mandate to the Executive; they have only called upon the Secretary of State to show them that what he has done is right. It is but an incipient proceeding which decides nothing. To show the inexpediency of the present bill, I shall endeavor to prove the expediency of the judicial law of the last session. In doing this it will be necessary to take a view of the leading features of the pre-existing system, to inquire into its defects, and to examine how far the evils complained of were remedied by the provisions of the late act. It is not my intention to enter into the details of the former system; it can be necessary only to state so much as will distinctly show its defects. There existed, sir, a Supreme Court, having original cognizance in a few cases, but principally a court of appellate jurisdiction. This was the great national court of dernier resort. Before this tribunal, questions of unlimited magnitude and consequence, both of a civil and political nature, received their final decision; and I may be allowed to call it the national crucible of justice, in which the judgments of inferior courts were to be reduced to their elements and cleansed from every impurity. There was a Circuit Court, composed in each district of a judge of the Supreme Court and the district judge. This was the chief court of business both of a civil and criminal nature. In each district a court was established for affairs of revenue, and of admiralty and maritime jurisdiction. It is not necessary for the purposes of the present argument to give a more extensive outline of the former plan of our Judiciary. We discover that the judges of the Supreme Court, in consequence of their composing a part of the circuit courts, were obliged to travel from one extremity to the other of this extensive country. In order to be in the court-house two months in the year they were forced to be upon the road six. The Supreme Court being the court of last resort, having final jurisdiction over questions of incalculable importance, ought certainly to be filled with men not only of probity, but of great talents, learning, patience, and experience. The union of these qualities is rarely, very rarely found in men who have not passed the meridian of life. My Lord Coke tells us no man is fit to be a judge until he has numbered the lucubrations of twenty years. Men of studious habits are seldom men of strong bodies. In the course of things it could not be expected that men fit to be judges of your Supreme Courts would be men capable of traversing the mountains and wildernesses of this extensive country? It was an essential and great defect in this court, that it required in men the combination of qualities, which it is a phenomenon to find united. It required that they should possess the learning and experience of years and the strength and activity of youth. I may say further, Mr. Chairman, that this court, from its constitution, tended to deterioration and not to improvement. Your judges, instead of being in their closets and increasing by reflection and study their stock of wisdom and knowledge, had not even the means of repairing the ordinary waste of time. Instead of becoming more learned and more capable, they would gradually lose the fruits of their former industry. Let me ask if this was not a vicious construction of a court of the highest authority and greatest importance in the nation? In a court from which no one had an appeal and to whom it belonged to establish the leading principles of national jurisprudence? In the constitution of this court, as a court of last resort, there was another essential defect. The appeals to this court are from the circuit courts. The circuit court consists of the district judge and a judge of the Supreme Court. In cases where the district judge is interested, where he has been counsel, and where he has decided in the court below, the judge of the Supreme Court alone composes the circuit court. What, then, is substantially the nature of this appellate jurisdiction? In truth and practice, the appeal is from a member of a court to the body of the same court. The circuit courts are but emanations of the Supreme Court. Cast your eyes upon the Supreme Court; you see it disappear, and its members afterwards arising in the shape of circuit judges. Behold the circuit judges; they vanish, and immediately you perceive the form of the Supreme Court appearing. There is, sir, a magic in this arrangement which is not friendly to justice. When the Supreme Court assembles, appeals come from the various circuits of the United States. There are appeals from the decisions of each judge. The judgments of each member pass in succession under the revision of the whole body. Will not a judge, while he is examining the sentence of a brother to-day, remember that that brother will sit in judgment upon his proceedings to-morrow? Are the members of a court thus constituted, free from all motive, exempt from all bias, which could even remotely influence opinion on the point of strict right? and yet let me ask emphatically, whether this court, being the court of final resort, should not be so constituted that the world should believe and every suitor be satisfied, that in weighing the justice of a cause, nothing entered the scales but its true merits? Your Supreme Court, sir, I have never considered as any thing more than the judges of assize sitting in bank. It is a system with which perhaps I should find no fault, if the judges sitting in bank did not exercise a final jurisdiction. Political institutions should be so calculated as not to depend upon the virtues, but to guard against the vices and weaknesses of men. It is possible that a judge of the Supreme Court would not be influenced by the _esprit du corps_, that he would neither be gratified by the affirmance, nor mortified by the reversal of his opinions; but this, sir, is estimating the strength and purity of human nature upon a possible, but not on its ordinary scale. I believe, said Mr. B., that in practice the formation of the Supreme Court frustrated, in a great degree, the design of its institution. I believe that many suitors were discouraged from seeking a revision of the opinions of the circuit court, by a deep impression of the difficulties to be surmounted in obtaining the reversal of the judgment of a court from the brethren of the judge who pronounced the judgment. The benefit of a court of appeals, well constituted, is not confined to the mere act of reviewing the sentence of an inferior court; but is more extensively useful by the general operation of the knowledge of its existence upon inferior courts. The power of uncontrollable decision is of the most delicate and dangerous nature. When exercised in the courts, it is more formidable than by any other branch of our government. It is the Judiciary only which can reach the person, the property, or life of an individual. The exercise of their power is scattered over separate cases, and creates no common cause. The great safety under this power arises from the right of appeal. A sense of this right combines the reputation of the judge with the justice of the cause. In my opinion, it is a strong proof of the wisdom of a judicial system when few causes are carried into the court of the last resort. I would say, if it were not paradoxical, that the very existence of a court of appeals ought to destroy the occasion for it. The conscience of the judge, sir, will no doubt be a great check upon him in the unbounded field of discretion created by the uncertainty of law; but I should, in general cases, more rely upon the effect produced by his knowledge, that an inadvertent or designed abuse of power was liable to be corrected by a superior tribunal. A court of appellate jurisdiction, organized upon sound principles, should exist, though few causes arose for their decision; for it is surely better to have a court and no causes, than to have causes and no court. I now proceed, sir, to consider the defects which are plainly discernible, or which have been discovered by practice in the constitution of the circuit courts. These courts, from information which I have received, I apprehend were originally constructed upon a fallacious principle. I have heard it stated that the design of placing the judges of the Supreme Court in the circuit courts, was to establish uniform rules of decision throughout the United States. It was supposed that the presiding judges of the circuit courts, proceeding from the same body, would tend to identify the principles and rules of decision in the several districts. In practice, a contrary effect has been discovered to be produced by the peculiar organization of these courts. In practice we have found not only a want of uniformity of rule between the different districts, but no uniformity of rule in the same district. No doubt there was a uniformity in the decisions of the same judge; but as the same judge seldom sat twice successively in the same district, and sometimes not till after an interval of two or three years, his opinions were forgotten or reversed before he returned. The judges were not educated in the same school. The practice of the courts, the forms of proceeding, as well as the rules of property, are extremely various in the different quarters of the United States. The lawyers of the Eastern, the Middle, and Southern States, are scarcely professors of the same science. These courts were in a state of perpetual fluctuation. The successive terms gave you courts in the same district, as different from each other as those of Connecticut and Virginia. No system of practice could grow up, no certainty of rule could be established. The seeds sown in one term scarcely vegetated before they were trodden under foot. The condition of a suitor was terrible; the ground was always trembling under his feet. The opinion of a former judge was no precedent to his successor. Each considered himself bound to follow the light of his own understanding. To exemplify these remarks, I will take the liberty of stating a case which came under my own observation. An application before one judge was made to quash an attachment in favor of a subsequent execution creditor; the application was resisted upon two grounds, and the learned judge, to whom the application was first made, expressing his opinion in support of both grounds, dismissed the motion. At the succeeding court, a different judge presided, and the application was renewed and answered upon the same grounds. The second learned judge was of opinion, that one point has no validity, but he considered the other sustainable, and was about also to dismiss the motion, but upon being pressed, at last consented to grant a rule to show cause. At the third term, a third learned judge was on the bench, and though the case was urged upon its former principles, he was of opinion, that both answers to the application were clearly insufficient, and accordingly quashed the attachment. When the opinions of his predecessors were cited, he replied, that every man was to be saved by his own faith. Upon the opinion of one judge, a suitor would set out in a long course of proceedings, and after losing much time and wasting much money, he would be met by another judge, who would tell him he had mistaken his road, that he must return to the place from which he started, and pursue a different track. Thus it happened as to the chancery process to compel the appearance of a defendant. Some of the judges considered themselves bound by the rules in the English books, while others conceived that a power belonged to the court, upon the service of a subpoena, to make a short rule for the defendant to appear and answer, or that the bill should be taken _pro confesso_. A case of this kind occurred where much embarrassment was experienced. In the circuit court for the district of Pennsylvania, a bill in chancery was filed against a person, who then happened to be in that district, but whose place of residence was in the North-western Territory. The subpoena was served, but there was no answer nor appearance. The court to which the writ was returned, without difficulty, upon an application, granted a rule for the party to appear and answer at the expiration of a limited time, or that the bill be taken _pro confesso_. A personal service of this rule being necessary, the complainant was obliged to hire a messenger to travel more than a thousand miles to serve a copy of the rule. At the ensuing court, affidavit was made of the service, and a motion to make the rule absolute. The scene immediately changed, a new judge presided, and it was no longer the same court. The authority was called for to grant such a rule. Was it warranted by any act of Congress, or by the practice of the State? It was answered there is no act of Congress--the State has no court of chancery. But this proceeding was instituted, and has been brought to its present stage at considerable expense, under the direction of this court. The judge knew of no power the court had to direct the proceeding, and he did not consider that the complainant could have a decree upon this bill without going through the long train of process found in the books of chancery practice. The complainant took this course, and at a future time was told by another judge, that he was incurring an unnecessary loss of time and money, and that a common rule would answer his purpose. I ask you, Mr. Chairman, if any system could be devised more likely to produce vexation and delay? Surely, sir, the law is uncertain enough in itself, and its paths sufficiently intricate and tedious, not to require that your suitors should be burdened with additional embarrassments by the organization of your courts. The circuit is the principal court of civil and criminal business; the defects of this court were, therefore, most generally and sensibly felt. The high characters of the judges at first brought suitors into the courts; but the business was gradually declining, though causes belonging to the jurisdiction of the courts were multiplying, the continual oscillation of the court baffled all conjecture as to the correct course of the proceeding or the event of a cause. The law ceased to be a science. To advise your client it was less important to be skilled in the books than to be acquainted with the character of the judge who was to preside. When the term approached, the inquiry was, what judge are we to have? What is his character as a lawyer? Is he acquainted with chancery law? Is he a strict common lawyer, or a special pleader? When the character of the judge was ascertained, gentlemen would then consider the nature of their causes, determine whether it was more advisable to use means to postpone or to bring them to a hearing. The talents of the judges rather increased the evil, than afforded a corrective for the vicious constitution of these courts. They had not drawn their knowledge from the same sources. Their systems were different, and hence the character of the court more essentially changed at each successive term. These difficulties and embarrassments banished suitors from the court, and without more than a common motive, recourse was seldom had to the Federal tribunals. I have ever considered it, also, as a defect in this court, that it was composed of judges of the highest and lowest grades. This, sir, was an unnatural association; the members of the court stood on ground too unequal to allow the firm assertion of his opinion to the district judge. Instead of being elevated, he felt himself degraded by a seat upon the bench of this court. In the district court he was every thing, in the circuit court he was nothing. Sometimes he was obliged to leave his seat, while his associate reviewed the judgment which he had given in the court below. In all cases he was sensible that the sentences in the court in which he was, were subject to the revision and control of a superior jurisdiction where he had no influence, but the authority of which was shared by the judge with whom he was acting. No doubt in some instances the district judge was an efficient member of this court, but this never arose from the nature of the system, but from the personal character of the man. I have yet, Mr. Chairman, another fault to find with the ancient establishment of the circuit courts. They consisted only of two judges, and sometimes of one. The number was too small, considering the extent and importance of the jurisdiction of the court. Will you remember, sir, that they held the power of life and death, without appeal? That their judgments were final over sums of two thousand dollars, and their original jurisdiction restrained by no limits of value, and that this was the court to which appeals were carried from the district court. I have often heard, sir, that in a multitude of counsel there was wisdom, and if the converse of the maxim be equally true, this court must have been very deficient. When we saw a single judge reversing the judgment of the district court, the objection was most striking, but the court never had the weight which it ought to have possessed, and would have enjoyed had it been composed of more members. But two judges belonged to the court, and inconvenience was sometimes felt from a division of their opinions. And this inconvenience was but poorly obviated by the provision of the law that in such cases the cause should be continued to the succeeding term, and receive its decision from the opinion of the judge who should then preside. I do not pretend, Mr. Chairman, to have enumerated all the defects which belonged to the former judicial system. But I trust those which I have pointed out, in the minds of candid men, will justify the attempt of the Legislature to revise that system, and to make a fairer experiment of that part of the plan of our constitution which regards the Judicial power. The defects, sir, to which I have alluded, had been a long time felt and often spoken of. Remedies had frequently been proposed. I have known the subject brought forward in Congress or agitated in private, ever since I have had the honor of a seat upon this floor. I believe, sir, a great and just deference for the author of the ancient scheme prevented any innovation upon its material principles; there was no gentleman who felt the deference more than myself, nor should I have ever hazarded a change upon speculative opinion. But practice had discovered defects which might well escape the most discerning mind in planning the theory. The original system could not be more than experiment; it was built upon no experience. It was the first application of principles to a new state of things. The first judicial law displays great ability, and it is no disparagement of the author to say its plan is not perfect. I know, sir, that some have said, and perhaps not a few have believed, that the new system was introduced not so much with a view to its improvement of the old, as to the places which it provided for the friends of the Administration. This is a calumny so notoriously false, and so humble, as not to require nor to deserve an answer upon this floor. It cannot be supposed that the paltry object of providing for sixteen unknown men could have ever offered an inducement to a great party basely to violate their duty, meanly to sacrifice their character, and foolishly to forego all future hopes. I now come, Mr. Chairman, to examine the changes which were made by the late law. This subject has not been correctly understood. It has every where been erroneously represented. I have heard much said about the additional courts created by the act of last session. I perceive them spoken of in the President's Message. In the face of this high authority, I undertake to state, that no additional court was established by that law. Under the former system there was one Supreme Court, and there is but one now. There were seventeen district courts, and there are no more now. There was a circuit court held in each district, and such is the case at present. Some of the district judges are directed to hold their courts at new places, but there is still in each district but one district court. What, sir, has been done? The unnatural alliance between the Supreme and district courts has been severed, but the jurisdiction of both these courts remains untouched. The power or authority of neither of them has been augmented or diminished. The jurisdiction of the circuit court has been extended to the cognizance of debts of four hundred dollars, and this is the only material change in the power of that court. The chief operation of the late law is a new organization of the circuit courts. To avoid the evils of the former plan, it became necessary to create a new corps of judges. It was considered that the Supreme Court ought to be stationary, and to have no connection with the judges over whose sentences they had an appellate jurisdiction. To have formed a circuit court out of the district judges, would have allowed no court of appeal from the district court, except the Supreme Court, which would have been attended with great inconvenience. But this scheme was opposed by a still greater difficulty. In many districts the duties of the judge require a daily attention. In all of them business of great importance may on unexpected occurrences require his presence. This plan was thought of; it was well examined and finally rejected, in consequence of strong objections to which it was liable. Nothing therefore remained but to compose the circuit court of judges distinct from those of the other courts. Admitting the propriety of excluding from this court the judges of the Supreme and district courts, I think the late Congress cannot be accused of any wanton expense, nor even of a neglect of economy in the new establishment. This extensive country has been divided into six circuits, and three judges appointed for each circuit. Most of the judges have twice a year to attend a court in three States, and there is not one of them who has not to travel further, and who in time will not have more labor to perform than any judge of the State courts. When we call to mind that the jurisdiction of this court reaches the life of the citizen, and that in civil cases its judgments are final to a large amount, certainly it will not be said that it ought to have been composed of less than three judges. One was surely not enough, and if it had been doubtful whether two were not sufficient, the inconvenience which would have frequently arisen from an equal division of opinion, justifies the provision which secures a determination in all cases. It was, additionally, very material to place on the bench of this court a judge from each State, as the court was in general bound to conform to the law and the practice of the several States. I trust, sir, the committee are satisfied that the number of judges which compose the circuit court is not too great, and that the Legislature would have been extremely culpable to have committed the high powers of this court to fewer hands. Let me now ask, if the compensation allowed to these judges is extravagant? It is little more than half the allowance made to the judges of the Supreme Court. It is but a small proportion of the ordinary practice of those gentlemen of the bar, who are fit, and to whom we ought to look to fill the places. You have given a salary of two thousand dollars. The puisne judges of Pennsylvania, I believe, have more. When you deduct the expenses of the office, you will leave but a moderate compensation for service, but a scanty provision for a family. When, Mr. Chairman, gentlemen coolly consider the amendments of the late law, I flatter myself their candor will at least admit that the present modification was fairly designed to meet and remedy the evils of the old system. The Supreme Court has been rendered stationary. Men of age, of learning, and of experience, are now capable of holding a seat on the bench; they have time to mature their opinions in causes on which they are called to decide, and they have leisure to devote to their books, and to augment their store of knowledge. It was our hope, by the present establishment of the court, to render it the future pride, and honor, and safety of the nation. It is this tribunal which must stamp abroad the judicial character of our country. It is here that ambassadors and foreign agents resort for justice; and it belongs to this high court to decide finally, not only on controversies of unlimited value between individuals, and on the more important collision of State pretensions, but also upon the validity of the laws of the States, and of this Government. Will it be contended that such great trusts ought to be reposed in feeble or incapable hands? It has been asserted that this court will not have business to employ it. The assertion is supported neither by what is past, nor by what is likely to happen. During the present session of Congress, at their last term, the court was fully employed for two weeks in the daily hearing of causes. But its business must increase. There is no longer that restraint upon appeals from the circuit court, which was imposed by the authority of the judge of the court to which the appeal was to be carried; no longer will the apprehension of a secret unavoidable bias in favor of the decision of a member of their own body, shake the confidence of a suitor, in resorting to this court, who thinks that justice has not been done to him in the court below. The progressive increase of the wealth and population of the country, will unavoidably swell the business of the court. But there is a more certain and unfailing source of employment, which will arise in the appeals from the courts of the National Territory. From the courts of original cognizance in this Territory, it affords the only appellate jurisdiction. If gentlemen will look to the state of property of a vast amount in this city, they must be satisfied that the Supreme Court will have enough to do for the money which is paid them. Mr. RANDOLPH said that he did not rise for the purpose of assuming the gauntlet which had been so proudly thrown by the Goliath of the adverse party; not but that he believed even his feeble powers, armed with the simple weapon of truth, a sling and a stone, capable of prostrating on the floor that gigantic boaster, armed cap-à-pie as he was; but that he was impelled by the desire to rescue from misrepresentation the arguments of his colleague, (Mr. GILES,) who was now absent during indisposition. That absence, said Mr. R., is a subject of peculiar regret to me, not only because I could have wished his vindication to have devolved on abler hands, but because he had to-day lost the triumph which, yesterday, he could not have failed to enjoy; that of seeing his opponent reduced to the wretched expedient of perverting and mutilating his arguments through inability to meet and answer them. Mr. R. said, that this was the strongest proof which could be given of inadequacy to refute any position. He, therefore, left to the gentleman the victory which he had obtained over his own arguments; but, while he felt no disposition to disturb him in this enjoyment, he hoped he should be permitted to correct some of the misstatements which had been made of his colleague's observations. In the view which he had taken of the conduct of our predecessors, in the chain of whose measures the law now proposed to be repealed formed an important link, the funding of the debt of the United States, and the assumption of those of the individual States, were comprehended. An attempt is made to construe this disapprobation into a design of violating the public faith. Mr. R. denied that one syllable had fallen from his colleague, indicative of a right, or disposition on his part, to withhold the payment of any public engagements. Against these destructive measures his colleague had raised his voice; against the fatal and absurd maxim, that a public debt was a public blessing, he had indeed protested; but not a word escaped his lips, because no such sentiment lurked in his heart, which could be construed into a declaration that the present Legislature possessed the same power over the engagements of former Legislatures which they possessed over ordinary laws; that of modifying or abrogating them with the same freedom which had been exercised in their establishment. Since the gentleman had betrayed such peculiar sensibility on the subject of the debt, Mr. R. relied on his support, when a measure should be brought forward for its final and rapid extinguishment, not by a sponge, but by a fair reimbursement of one hundred cents for every dollar due. On other topics, the Algerine depredations, Indian war, &c., it might as easily be shown that the representation had been equally unfair. He should not dwell upon them, because they were less calculated to make the unfavorable impression on the public mind, which had been attempted on the subject of the debt. He would dismiss them with a single remark: the uses to which these incidents were applied, and not the events themselves, formed the subject of his colleague's animadversions. But to the long catalogue of unpopular acts which have deprived their authors of the public confidence, the gentleman tells us, he and his friends were "goaded" by the clamor of their opponents. He solemnly assures us, that in the adoption of those measures they clearly foresaw the downfall of their power; but impressed with a conviction that they were essential to the public good, and disdaining all considerations of a personal nature, they nobly sacrificed their political existence on the altar of the general welfare; and we are called upon now to revere in them the self-immolated victims at the shrine of patriotism. These are, indeed, lofty pretensions; and although I shall not peremptorily deny, in this age of infidelity, I may be permitted to doubt them; for I call upon this committee to decide whether, in this day's discussion, the gentleman has evinced that purity of heart, or that elevation of sentiment, which could justify me in clothing him with the attributes of Curtius or of the Decii? I wish especially to know, whether the common law of libels which attaches to this constitution, be the doctrine laid down by Lord Mansfield, or that which has immortalized Mr. Fox? And whether the jurisdiction thus usurped over the press, in defiance of an express amendatory clause, which must be construed to annul every previous provision, if any such there be, which comes within its purview, be an example adduced to illustrate the position, which I certainly shall never contest, that "what the constitution does not permit to be done by direct means, cannot, constitutionally, be indirectly effected?" But to reconcile us to this usurpation, we are informed, that the principles of the common law are favorable only to liberty; that they neither have been, nor can be enlisted in the cause of persecution. If I did not misunderstand the gentleman, he said that no prosecution had occurred under that law. He has therefore never heard of the case of Luther Baldwin. I speak of the New Jersey case; nor that of Williams. Other instances, I learn from high authority, have taken place in Vermont. Mr. R. said he was unhackneyed in the ways of majorities; his experience had been very limited; but was he to conclude, from these observations, that it was the common law, the uniform usage heretofore of this Government, for this House to be the mere instrument for effecting the Executive will, a Chamber for enregistering Presidential edicts? It is said, that the document on this subject was one which the Executive had no right to lay before the House. When did the right of the President to recommend modifications of the Judiciary system cease? Such recommendations had heretofore formed a prominent feature in two successive Executive communications made at the commencement of two successive sessions of Congress. Did the right of the Executive to recommend, and of Congress to act, cease at the precise period when the faultless model of the last session was perfected? Mr. R. said, that the gentleman from Delaware had taken such a range, and thrown out such a vast deal of matter, that, in attempting to reply to some of his observations, he was necessarily led into many desultory remarks. The present system, it seems, was necessary, from the inevitable corporeal infirmity of the judges: the unavoidable effect of the tedious probation indispensable to that venerable station. Let us compare the former practice with the present theory. The judge of one of the two districts into which Virginia had been divided, was contemporary with him at school. He is certainly neither an infirm nor hoary sage. His associate from Maryland had been an active and gallant partisan at the siege of Pensacola, during our Revolutionary war: not contending, however, under those banners where you would have expected to find a man who occupies so dignified a station under the Government of the United States; but fighting the battles of his King. Bravely, yet, alas! unsuccessfully contending against the spirit of insubordination and jacobinism which threatens to sweep from the earth every thing valuable to man, against which the gentleman from Delaware is also eager to enter the lists. The selections which have been made from either House of Congress seem to have had as little reference to age and experience, which are said to be indispensable to the Judicial character. Upon a subject connected with those appointments, we have been told that the Executive had a right to presume a vacancy in all cases where a judge of an inferior tribunal had been appointed to a seat on the bench of a superior court; and that the new office vests, not at the time when the judge is notified of his promotion, nor at the date of his acceptance, but from the date of his commission. Mr. R. said, that he certainly did not mean to contend with the gentleman from Delaware on points of law, yet he would put a question to that gentleman. It will readily be conceded, that the vacating of the former office is the condition of the acceptance of the latter. Suppose a judge, after the date of his new commission, but prior to his notification or acceptance thereof, perform a Judicial act, was that act, therefore, invalid? Could his successor, on the receipt of his commission, exercise the functions of judge, prior to the resignation of the former incumbent? Could any office be at the same time in the possession of two persons? Did not this doctrine imply a right on part of the Government to anticipate the resignation of any judge, to compel his assent to an act vacating his office? The new commission, under these circumstances, either did or did not give a claim to its possessor on the office. If it did not, the Executive had a right to withhold it. If it did, a judge may be expelled from office, without his consent, and provided, at any time afterwards he shall acquiesce, the expulsion is legal. Besides, by what authority does a member of this House hold his seat under an election previous to his appointment of district judge of North Carolina? For this office a commission was issued, as I am credibly informed. But, sir, we shall be told, that the manner in which this affair was transacted ought not to affect our decision. It is with me an irrefragable proof of the inexpediency of the law, and of course conclusive evidence of the expediency of its repeal. But the constitution is said to forbid it. And here permit me to express my satisfaction, that gentlemen have agreed to construe the constitution by the rules of common sense. This mode is better adapted to the capacity of unprofessional men, and will preclude the gentleman from arrogating to himself, and half a dozen other characters in this committee, the sole right of expounding that instrument, as he had done in the case of the law which is proposed to be repealed. Indeed, as one of those who would be unwilling to devolve upon that gentleman the high priesthood of the constitution, and patiently submit to technical expositions which I might not even comprehend, I am peculiarly pleased that we are invited to exercise our understandings in the construction of this instrument. A precedent, said to be quite analogous, has been adduced--the decision of the judges of Virginia, on a similar question. A pamphlet, entitled "A Friend to the Constitution," has been quoted. Public opinion informs me that this is the production of the pen of a gentleman who holds a pre-eminent station on the Federal bench. Am I so to consider it? If this be understood, it is entitled to high respect; the _facts_, at least, must be unquestionable. The courts of Virginia consisted of one general court of common law; a court of chancery, composed of three judges; and a court of admiralty. The judges of all those courts held their office during good behavior; and did, by law, constitute a court of appeals. The general court becoming manifestly incompetent to the extensive duties assigned to it, a system of circuit courts was adopted in 1787, and the judges of the court of appeals were appointed to ride the circuits. This law the judges pronounced unconstitutional, and agreed, unanimously, to remonstrate against it. After lamenting the necessity of deciding between the constitution and the law, and that, in a case personally interesting to themselves, they say, "on this view of the subject, the following alternatives presented themselves; either to decide the question, or resign their offices. The latter would have been their choice, if they could have considered those questions as affecting their individual interests only." Yes, sir, and such was the character of those men, that none doubted the sincerity of this declaration. They then go on to declare, that the Legislature have no right even to increase their duties, by a modification of the courts; a privilege for which no one here has contended. In respect, much more, it is believed, to the characters of those venerable men, than to this opinion, the Legislature did not enforce the new regulations. The law was new-modelled, a separate court of appeals established, the judges of which were to be elected by joint ballot, in conformity with the constitution. New members were added to the general court, and it was declared to be their duty to ride the circuits. The judges of chancery, of the general court, and court of admiralty, who had not been elected, in pursuance of the constitution, judges of appeals, but on whom that duty was imposed by law, were relieved from the further discharge of it. In this arrangement several of the judges were understood to have been consulted; and on the ballot the six senior judges were elected, five into the court of appeals, and the sixth in the court of chancery. Nevertheless, against this law the judges also protested, as an invasion of the Judiciary establishment, denying the right of the Legislature to deprive them of office in any other mode than is pointed out in the constitution, (impeachment;) but to make way for the present salutary system, they do, in their mere free will, resign their appointments as judges of the court of appeals, and as they do not hold any separate commission for that office, which might be returned, they do order the same to be recorded. Now, sir, I shall not contend, as I certainly might, and with great reason, that the practice of Virginia must be considered as settling the constitutional doctrine of the State, the opinions of individuals, however enlightened and respectable, notwithstanding; under which practice two chancellors have been removed from their office of judges in chancery, as well as of appeals, and the judges of the general court and court of admiralty also divested of their seats on the bench of the court of appeals, although a court of appeals was supposed necessary, and was retained in the new system; nor shall I insist on the disparity between the stability of the Judicial branch of Government in the eye of the Constitution of Virginia, and that of the United States, respectively, as surely I might. For the constitution of Virginia has a retrospect to pre-existing Judicial establishments, which experience had tested, which were allowed to be beneficial, and which it is contended were sanctioned by it. That of the United States, formed when the Confederacy had no such establishments, is to be created, from time to time: in other words, to be modified, as experience shall point out their defects--this power being devolved on a body constituted by express _unalterable_ provisions. No, sir, I shall not dilate upon these forcible topics; I will concede, for argument sake, that the doctrine contended for by the judges of Virginia, was the true constitutional doctrine, and will apply it to the bill on your table, having first applied it to the act on which it is intended to operate. Previous to the existence of that act, the duty of judge of the circuit court was performed by the judges of the Supreme Court, who constituted a court of appeals, and by the judges of the respective districts. These were judges of the circuit court to every intent and purpose, as completely as the judges of Virginia were judges of appeals. By the operation of the law of the last session, they have been divested of this _office_, and other persons have been appointed to it. Much stress is laid, much ingenuity exercised to make metaphysical distinctions between the court and the office. I will grant all that gentlemen contend for, that there is a wide distinction. Does it affect the case? Does it alter the fact? The late circuit courts were not only abolished--the persons holding the office of judge of those courts no longer hold it; they have neither been impeached, nor have they resigned. They have not even accepted any new appointment inconsistent with it, and by which it became vacant. The function of judge of the circuit court does or does not constitute an office. If it does, then the judges of the supreme and district courts have been deprived of their offices, (the discharge of whose duties, be it remembered, constitutes no small part of the consideration for which they receive their salaries.) If it does not, then the circuit judges are not now about to be deprived of their offices. On the passage of the law of last session, did we hear any protest against its unconstitutionality from the Supreme or district courts? Of any resignations of the office of judge of the circuit court, in order "that a salutary system might take effect?" And yet, sir, is not that office as distinct from that of Supreme or district judge, as the office of judge of appeals in Virginia is from that of judge of the general court, chancery, or admiralty? Are not the jurisdictions of those courts separate and distinct? Both never having original jurisdiction of the same subjects; and an appeal lying from the inferior to the superior tribunal, as in Virginia, although the officers of those tribunals may be the same individuals? What, then, is the difference between taking the office of appellate jurisdiction from the judge who possessed original jurisdiction, or taking the office of original jurisdiction from the appellate judge? How is the independence of the judge more affected by the one act than by the other? To prove the unconstitutionality of this bill, then, by a recurrence to the doctrine of the judiciary of Virginia, is to prove the unconstitutionality of the law of which it will effect the repeal. And no argument has been, or, in my poor opinion, can be, adduced, to prove the unconstitutionality of the one, which will not equally apply to the other. No, sir, gentlemen are precluded by their own act from assuming the ground of the judges of Virginia; they are obliged to concede that we have the power, because they have already exercised it, of modifying the courts, and here they concede the question. They tell you that this, however, must, to be constitutional, be a "bona fide" modification. It becomes them to prove, then, that this is a _mala fide_ modification. Gentlemen have not, they cannot meet the distinction between removing the judges from office for the purpose of putting in another person, and abolishing an office because it is useless or oppressive. Suppose the collectors of your taxes held their offices by the tenure of good behavior, would the abolition of your taxes have been an infraction of that tenure? Or would you be bound to retain them, lest it should infringe a private right? If the repeal of the taxes would be an infringement of that tenure, and therefore unconstitutional, could you ring all the changes upon the several duties on stamps, carriages, stills, &c., and, because you had retained the man and any one of these offices without diminishing his emoluments, abolish the others? Would not this be to impair the tenure of the office which was abolished, or to which another officer might have been appointed by a new regulation? Have not the judges, in the same manner, been deprived of one of their offices? And is not the tenure as completely impaired thereby, as if the other had been taken away also? Although it will be granted that the _tenant_ is not so much affected, since, with one office, he has the salary formerly attached to both. I agree that the constitution is a limited grant of power, and that none of its general phrases are to be construed into an extension of that grant. I am free to declare, that if the intent of this bill is to get rid of the judges, it is a perversion of your power to a base purpose; it is an unconstitutional act. If, on the contrary, it aims not at the displacing of one set of men, from whom you differ in political opinion, with a view to introduce others, but at the general good by abolishing useless offices, it is a constitutional act. The _quo animo_ determines the nature of this act, as it determines the innocence or guilt of other acts. But we are told that this is to declare the Judiciary, which the constitution has attempted to fortify against the other branches of Government, dependent on the will of the Legislature, whose discretion alone is to limit their encroachments. Whilst I contend that the Legislature possess this discretion, I am sensible of the delicacy with which it is to be used. It is like the power of impeachment, or of declaring war, to be exercised under high responsibility. But the power is denied since its exercise will enable flagitious men to overturn the Judiciary, in order to put their creatures into office, and to wreak their vengeance on those who have become obnoxious by their merit. Yet the gentleman expressly says, that arguments drawn from a supposition of extreme political depravity, prove nothing; that every Government pre-supposes a certain degree of honesty in its rulers, and that to argue from extreme cases is totally inadmissible. Yet the whole of this argument is founded on the supposition of a total want of principle in the Legislature and Executive. In other words, arguments drawn from the hypothesis are irresistible when urged in favor of that gentleman's opinion; when they militate against him, they are totally inapplicable. It is said that the bill on your table cannot constitutionally be passed, because unprincipled men will pervert the power to the basest of purposes; that, hereafter, we may expect a revolution on the bench of justice, on every change of party, and the politics of the litigants, not the merits of the case, are to govern its decisions. The Judiciary is declared to be the guardian of the constitution against infraction, and the protection of the citizen, as well against Legislative as Executive oppression. Hence the necessity of an equal independence of both. For it is declared to be an absurdity, that we should possess the power of controlling a department of Government which has the right of checking us; since thereby that check may be either impaired or annihilated. This is a new doctrine of check and balance, according to which the constitution has unwisely given to an infant Legislature the power of impeaching their guardians, the judges. Apply this theory to the reciprocal control of the two branches of the Legislature over each other and the Executive, and of the Executive over them. But, sir, this law cannot be passed, because the character of the bench is to be given to it by the Legislature, to the entire prostration of its independence and impartiality. It will be conceded, that measures, such as have been portrayed, will never be taken, unless the sentiment of the ruling party is ready to support them. Although gentlemen contend, that the office of judge cannot be abolished, they are not hardy enough to deny that it may be created. Where then, sir, is the check, supposing such a state of things as the gentleman has imagined, (and which he has also declared cannot be conceived,) which shall prevent unprincipled men from effecting the same object by increasing the number of judges, so as to overrule, by their creatures, the decisions of the courts? Would not public opinion be as ready to sanction the one as the other of these detestable acts? Would not the same evil which has excited such apprehension in the minds of gentlemen, be thus effected by means even more injurious than those which they have specified? Without any breach of the constitution an unprincipled faction may effect the end which is so much apprehended from the measure now contemplated to be adopted. I might add, that, when the public sentiment becomes thus corrupt, the ties of any constitution will be found too feeble to control the vengeful ambition of a triumphant faction. The rejection of this bill does not secure the point which has furnished matter for so much declamation. Its friends are represented as grasping at power not devolved upon them by the constitution, which hereafter is to be made the instrument of destroying every judicial office, for the purpose of reviving them and filling the places with their partisans. I have long been in the habit of attending to the arguments of the gentleman from Delaware, and I have generally found, in their converse, a ready touchstone, the test of which they are rarely calculated to withstand. If you are precluded from passing this law, lest depraved men make it a precedent to destroy the independence of your Judiciary, do you not concede that a desperate faction, finding themselves about to be dismissed from the confidence of their country, may pervert the power of erecting courts, to provide to an extent for their adherents and themselves? and that however flagrant that abuse of power, it is remediless, and must be submitted to? Will not the history of all Governments warrant the assertion, that the creation of new and unnecessary offices, as a provision for political partisans, is an evil more to be dreaded than the abolition of useless ones? Is not an abuse of power more to be dreaded from those who have lost the public confidence than from those whose interest it will be to cultivate and retain it? And does not the doctrine of our opponents prove that, at every change of administration, the number of your judges are probably to be doubled? Does it not involve the absurdity that, in spite of all constitutional prohibitions, Congress may exercise the power of creating an indefinite number of placemen, who are to be maintained through life at the expense of the community? But, when these cases are cited, you are gravely told that they suppose a degree of political depravity which puts an end to all argument. Here, sir, permit me to state an important difference of opinion between the two sides of this House. We are accused of an ambitious usurpation of power; of a design to destroy a great department of Government, because it thwarts our views, and of a lawless thirst of self-aggrandizement which no consideration can restrain. Let us not be amused by words. Let us attend to facts. They will show who are contending for unlimited, and who for limited power. The opponents of this bill contend that they did possess the power of creating offices to an indefinite amount; which, when created, were beyond the control of the succeeding Legislature. They, of course, contend for the existence of such a power in the present Legislature, for whose exercise there is no security but their self-respect. In other words, that if the present majority should incur the suspicion of the people, they may, as soon as there is any indication of their having forfeited the public confidence, on the signal of their dismissal from their present station, make ample and irrepealable provision for themselves and their adherents, by the creation of an adequate number of judicial offices. Now, sir, this is a power which we reject, though it is insisted that we possess it. We deny that such an authority does exist in us. We assert that we are not clothed with the tremendous power of erecting, in defiance of the whole spirit and express letter of the constitution, a vast judicial aristocracy over the heads of our fellow-citizens, on whose labor it is to prey. Who, then, are, in reality, the advocates of a limited authority, and who are the champions of a dangerous and uncontrollable power? In my estimation, the wisest prayer that ever was composed is that which deprecates the being led into temptation. I have no wish to be exposed myself, nor to see my friends exposed, to the dangerous allurements which the adverse doctrine holds out. Do gentlemen themselves think that the persons, whom I see around me, ought to be trusted with such powers? Figure to yourselves a set of men, whose incapacity or want of principle has brought on them the odium of their country, receiving, in the month of December, the solemn warning, that on the 4th of March following, they are to be dismissed from the helm of Government; establish the doctrine now contended for, and what may we not expect? Yes, sir, the doctrine advanced by our opponents is that of usurpation and ambition. It denies the existence of one power by establishing another infinitely more dangerous; and this you are told is to protect, through the organ of an independent judiciary, the vanquished party from the persecution of their antagonists, although it has been shown that, by increasing the number of judges, any tone whatever may be given to the bench. The theory for which gentlemen contend seems to me far-fetched and overstrained. A mighty enginery is set in motion, which to all good purposes is ineffectual, although formidable in the perpetration of mischief. If, however, the people should be of a different opinion, I trust that at the next election they will apply the constitutional corrective. That is the true check; every other check is at variance with the principle, that a free people are capable of self-government. But, sir, if you pass the law, the judges are to put their veto upon it by declaring it unconstitutional. Here is a new power, of a dangerous and uncontrollable nature, contended for. The decision of a constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people, or to those who are irresponsible? for the responsibility by impeachment is little less than a name. From whom is a corrupt decision most to be feared? To me it appears that the power which has the right of passing, without appeal, on the validity of your laws, is your sovereign. But an extreme case is put; a bill of attainder is passed; are the judges to support the constitution or the law? Shall they obey God or Mammon? Yet you cannot argue from such cases. But, sir, are we not as deeply interested in the true exposition of the constitution, as the judges can be? With all the deference to their talents, is not Congress as capable of forming a correct opinion as they are? Are not its members acting under a responsibility to public opinion, which can and will check their aberrations from duty? Let a case, not an imaginary one, be stated: Congress violates the constitution by fettering the press; the judicial corrective is applied to; far from protecting the liberty of the citizen, or the letter of the constitution, you find them outdoing the Legislature in zeal; pressing the common law of England to their service where the sedition law did not apply. Suppose your reliance had been altogether on this broken staff, and not on the elective principle? Your press might have been enchained till doomsday, your citizens incarcerated for life, and where is your remedy? But if the construction of the constitution is left with us, there are no longer limits to our power, and this would be true if an appeal did not lie through the elections, from us to the nation, to whom alone, and not a few privileged individuals, it belongs to decide, in the last resort, on the constitution. Gentlemen tell us that our doctrine will carry the people to the gallows if they suffer themselves to be misled into the belief that the judges are not the expositors of the constitution. Their practice has carried the people to infamous punishment, to fine and imprisonment; and had they affixed the penalty of death to their unconstitutional laws, judges would not have been wanting to conduct them to the gibbet. Mr. MACON.--As no other member at present seems disposed to take the floor, I will ask the attention of the committee for a few minutes. I have attended with the greatest patience and diligence, to the arguments of gentlemen who oppose the bill as unconstitutional; and had they produced a single doubt in my mind on the point of constitutionality, I should most certainly have voted with them against the bill on your table; but I can with truth say, I have not heard any argument which has in the least changed my first conviction, that we have a constitutional right to pass it. I should not, I believe, have spoken on this question, had not my colleagues, who differ with me in opinion, thought proper to bring into view a vote of the Legislature of the State, instructing her Senators and recommending it to the Representatives to use their best endeavors to obtain a repeal of the last Judiciary act. On this resolution of the State Legislature, they made some extraordinary remarks, which I mean to notice; but first permit me to inform the committee, that it has been the constant practice of the Legislature of that State, from the commencement of the General Government to the present day, to instruct her Senators, and to recommend to her Representatives, to pursue such measures on all the great national questions that have occurred, as the Legislature judged the interest of the State required, and this proceeding has never been considered improper. I shall endeavor to answer the gentlemen in the order they spoke, beginning with my colleague (Mr. HENDERSON,) who was first on the floor. If I understand him rightly, (and if I do not he will correct me, because it is not my desire to misstate a single word,) he said that the Legislature of the State might have adopted the resolutions in consequence of the Message of the President; but, upon examination of the dates, this will be found to be impossible. The message could not have reached the Legislature before the question on the resolutions was taken and decided; and on no important question was that body ever more unanimous; and though my colleague has said the question was there viewed but on one side, and decided in a manner _ex parte_, yet I will be bold to say, if there were any members in that Legislature who thought on this subject as he does, he enjoyed the same right there that my colleague does here, to deliver his sentiments. Knowing as I do the great talents and integrity of my colleague, and I believe no one on this floor knows them better, I was surprised when he charged others with being under the influence of passion, when his conduct must convince them that he was guided by the very passion which he attributed to others. He quoted the Constitution of North Carolina, let us examine it, and see whether his argument can be aided by the practice under that instrument. The thirteenth article is in the following words: that "the General Assembly shall, by joint ballot of both Houses, appoint judges of the supreme court of law and of equity, judges of admiralty, and attorney general, who shall be commissioned by the Governor, and hold their offices during good behavior." On this clause he noted the independence of the State Judiciary; and they are independent so long as the law creating their office is in force, and no longer; and it is worthy of notice, that in this section, no mention is made of salary, and yet the judges have been considered as independent as the Judges of the United States. Soon after the adoption of the constitution, the Legislature of the States established courts in conformity thereto; first county courts, and then superior, and afterwards, by a Legislative act, without electing a single new judge, gave the superior courts the additional jurisdiction of a court of equity, and never a solitary complaint, that this law was unconstitutional; and it must be acknowledged, that if you can make a court of law also a court of equity, by a Legislative act, you can by the same power take it away; and what becomes, in this case, of the commission which is to be held during good behavior? It is, according to my construction, to last no longer than the law which created the office remains in force, and this is long enough to make the judges independent. As to the salary of the Judges of North Carolina, the twenty-first section of the constitution says, "they shall have adequate salaries during their continuance in office," and yet with this clear right in the Legislature, to lessen as well as to add to their salaries, the judges, it is agreed, are independent. My colleague well knows, that many attempts have been made to deprive the superior courts of exercising any jurisdiction in cases of equity; and he also knows, that attempts have been made to establish a court of appeals, which should revise the decisions of the superior courts now in being; and by the constitution of the State, any supreme court may, on presentment of a grand jury, try the governor for maladministration, &c., and I believe the present courts are authorized to do this. I have not at this place been able to see the act which gives this authority; but no doubt is entertained of the fact. It is clear, then, that in North Carolina, all parties have thought, that "during good behavior," only meant so long as the office existed; because, by establishing a court of appeals, the judges now in being would not be supreme judges, and in all these various attempts, no one ever charged either of them to be unconstitutional. On examination of the Constitution of North Carolina, it will be found that it makes provision for the appointment of other officers by the Legislature, but says nothing about adequate compensation, except in the section last read, and if you take the office away, what is an adequate compensation for doing nothing? Another proof might be drawn from the Constitution of North Carolina, in favor of the opinion I hold, which is taken from the twenty-ninth section, that "no Judge of a Supreme Court shall have a seat in the General Assembly," and my colleague knows, that the present judges could not hold a seat there, because they are supreme judges. And he also knows, that no one ever doubted the constitutional right of the Legislature to establish the courts before mentioned; and it seems to me this, on his construction, would be a violation of the constitution, because, having once made a Supreme Court, it must always remain so, to secure, what he calls, the independence of the judges. Sir, I was astonished when my colleague said, that the judges should hold their offices, whether useful or not, and that their independence was necessary, as he emphatically said, to protect the people against their worst enemies, themselves; their usefulness is the only true test of their necessity, and if there is no use for them, they ought not to be continued. I will here ask my colleague whether, since the year 1783, he has heard of any disorder in the State we represent, or whether any act has been done there which can warrant or justify such an opinion, that "it is necessary to have judges to protect the people from their worst enemies, themselves." I had thought we, the people, formed this Government, and might be trusted with it. My colleague never could have uttered this sentence, had he not been governed by that passion which he supposes governs others. It is true that we are not a rich and wealthy State, but it is equally true, that there is no State in the Union more attached to order and law; and my colleague himself would not say that it was necessary to have judges for this purpose in the country we represent; the people there behave decently without having Federal judges, or standing armies, to protect them against themselves. Is it not strange, that the people should have sense enough to pay their taxes without being driven to it by superior force, and not have sense enough to take care of themselves without this new Judiciary? They certainly contrived to do this before the act establishing this Judiciary passed. Another expression of his equally astonished me; he said, that on the 7th day of December, a spirit which had spread discord and destruction in other countries, made its entry into this House. What! are we to be told, because at the last election the people thought proper to change some of their representatives, and to put out some of those who had heretofore been in power, and to put others in power of different opinions, that a destroying spirit entered into all the public functionaries? For what, sir, are elections held, if it be not that the people should change their representatives when they do not like them? And are we to be told from the house-tops, that the only use of elections is to promote, not public good, but public mischief? We are also told, that this constitution was to be destroyed by the all-devouring energies of its enemies. Who are its enemies? We are not, nor do I think there are any in this House; but there are parties as well in this House as out of doors, and no man wishes more sincerely than I do, that they were amalgamated, that we might get rid of all party gall, and free ourselves from improper reflections hereafter. But by what energy is the constitution to be destroyed? The only energy heretofore used, and which made the change so much complained of, was the energy of election. Sir, I scarcely know what to say when I hear such uncommon sentiments uttered from a head so correct and a heart so pure; it is the effect of a passion of which he is unconscious. Again he says, if you repeal this law, the rich will oppress the poor. Nothing but too much law can any where put it in the power of the rich to oppress the poor. Suppose you had no law at all, could the rich oppress the poor? Could they get six, eight or ten per cent. for money from the poor without law? If you destroy all law and government, can the few oppress the many, or will the many oppress the few? But the passing the bill will neither put it in the power of the rich to oppress the poor, nor the poor to oppress the rich. There will then be law enough in the country to prevent the one from oppressing the other. But while the elective principle remains free, no great danger of lasting oppression can be really apprehended; as long as this continues, the people will know who to trust. We have heard much about the judges, and the necessity of their independence. I will state one fact, to show that they have power as well as independence. Soon after the establishment of the Federal Courts, they issued a writ--not being a professional man I shall not undertake to give its name--to the Supreme Court of North Carolina, directing a case then depending in the State court to be brought into the Federal Court. The State Judges refused to obey the summons, and laid the whole proceedings before the Legislature, who approved their conduct, and, as well as I remember, unanimously; and this in that day was not called disorganizing. As so much has been said about the resolutions of North Carolina, I will repeat again, that it is no uncommon thing for the Legislature to express their opinion on great national subjects, and will ask my colleagues whether they ever heard any complaint of the resolutions about the Western land? And whether none of them in the Legislature never voted for the resolutions about the western land, nor about post-offices and post-roads? The Legislature surely had as much right to give an opinion as the Chamber of Commerce of New York; but, put it upon what footing you please, it is entitled to respect, as the uninfluenced opinion of so many respectable individuals; and the Legislature never intended nor wished that the recommendation to the representatives should be binding on them at all events; and if I believed the bill to be unconstitutional, I should not vote for it, but as I do not, I hope the gentleman will pardon me for pursuing my own sentiments, and voting for it. I hope no man will ascribe to me a disposition to produce anarchy in my native country. Although poor myself, I feel as strong a desire as any one on this floor for the preservation of good order and good government. It has been asked, by the gentleman from Delaware, (Mr. BAYARD,) will the gentleman from Virginia (Mr. GILES) say, the assuming the State debts was improper? I have no hesitation to say that it was done at an improper time; and, in showing that it was, I hope I shall be pardoned for travelling over topics that really have nothing to do with the merits of the present question. That act is now done, and, by what I say, it is not to be understood that I wish Congress should put their hands upon it. It will be noticed that Congress are authorized to establish post-offices and post-roads for the general and equal dissemination of information throughout the United States; and is it not known that no act was passed on that subject before the assumption of the State debts, and that there was only one post-road which run near the sea-coast? Of course, the people in the interior country had no communication with those in the Government, nor had they any knowledge of what was doing. But the rich speculator, who was on the spot, by going into the country where the people were ignorant of what had been done, purchased up their certificates--the only reward they had received for their toil and wounds--at about one-tenth of their value. And it is possible that many of these purchases may have been made with public money. And it is clear to me, that if a proper number of post-roads had been established, before the act was passed for assuming the State debts, the war-worn soldier would not have lost half as much as he did by the speculation on his certificates. The gentleman from Delaware says we drove them to the direct tax. This is the first time I ever heard of a minority driving a majority. Is such a thing possible? Did we drive them to the measures that made such immense expenditures of the public money necessary? No, sir, we opposed those measures as useless; and the true ground of the direct tax is this: the public money was expended; public credit was stretched, until, to preserve it, it became necessary to provide for paying, and the means adopted were the direct tax. The same gentleman tells us there is nothing sacred in the eyes of infidels. We know our opponents. The allusion here is too plain not to be understood; and evidently is, that those who differ with him in opinion are infidels. This is a strong expression; it would have seemed that his love of Americans ought to have prevented the use of it. I shall make no answer to it, except to remind him that in a book, the truth of which he will not deny, he will find these words, "_Judge not, lest ye be judged_." He also said that gentlemen might look to the Executive for victims, and not to the judges. Notwithstanding this remark, and without condemning or approving the appointments made by the late President, I hope I may be permitted to express my own ideas, without being considered as under the influence of the present President. Prior to the fourth of last March, all, or nearly all, the offices in the gift of the Executive, were in the hands of men of one political opinion. On that day, the people changed the President, because they did not like measures that had been pursued. But, to those who have attended to the debates in this House, it must appear strange, indeed, to hear gentlemen complain of the President having in office those who agree with him in opinion, when we were formerly told that the President would do wrong if he appointed to office those who differed from him in political opinion; and whenever he had done it, he had had cause to repent of it. Was that opinion then correct, and now false, in the estimation of gentlemen? For my part, I did not think the opinion correct when I first heard it, nor have I since been convinced of its propriety. Indeed, before I can think so, I must have a worse opinion of human nature than I now have, and think of men as they pretend to think of us, which God forbid! But, taking things as they are, what course, on this point, is most fair and tolerant? The community, as well as this House, is divided into two parties. It seems to me, that all the most tolerant could wish, would be an equal division of the offices between the parties, and thus you might fix a reciprocal check on each other. But I ask gentlemen to be candid, and tell me whether they are at this time equally divided? Sir, they know that there are many more persons who now fill offices who agree with them in opinion than agree with us. As to myself, I care not who fill offices, provided they act honestly and faithfully in them. I can with truth say, so little party attachment have I on this head, that I never solicited to have any man discharged from office. Knowing that a large majority of those now in office agree with those gentlemen in political opinion, I am at a loss for the cause of all this clamor. They have no doubt some reason for it, which has not been declared. The fact is, they have a majority of the offices, and a majority of the people are with us. I am contented it should be so. The gentleman has dwelt much on a subject which, from my habits of life, I am not enabled fully to notice; I must decide for myself, and, judging with the small share of information I possess, I cannot agree with him. I do not pretend to understand the subject as well as he does, but certainly he was not so perspicuous as it might have been expected. I mean, sir, his opinion on the common law. He told us that the judges only adopted such parts of the common law of England as suited the people, and that he apprehended no danger from this. Sir, I do apprehend danger from this, because I cannot find any authority given them in the constitution to do it, and I suppose it is not an inherent right. Without pretending to know the extent of this common law, it has always appeared to me to be extremely dangerous to the rights of the people, for any person not elected by them, to undertake to exercise the power of legislating for them, and this adopting the common law is only another name for legislation. He has also told us, that the States had adopted it. If the States adopted it, it became a law of the State, and not of the United States; but the adoption of it by the individual States, could not give the judges a right to adopt it for the United States. The judges have no powers but what are given by the constitution or by statute, and this power cannot be found in either. He even told us, that the constitution was a dead letter without it. I do not believe this was the opinion of the convention that formed it, and by an examination of the debates of the State conventions that ratified it, it will not be found to be their opinion; nor is it, I believe, the opinion of all the Judges of the Supreme Court, that the constitution would be a dead letter without the common law of England. I have understood, that one of them has given it as his opinion, that the common law was not in force in the United States. The gentleman told us, that the Sedition law was constitutional, and that the judges had so determined. This we have often been told before; but, in my opinion, the contrary is the fact. I firmly believe there is no authority given in the constitution to pass that law, and although the judges agree with him in opinion, I believe the people agree with me. He, like my colleague, did not pretend to say that the judges under the old system had too much business, but too much riding. The whole burden of the song seems to be riding and salary, salary and riding; you may destroy the office, but the officer must have his salary, and this I suppose without riding. The old system was, in my opinion, equal to every object of justice contemplated by its establishment. The gentleman has ascribed to us the wish to have the courts viciously formed. Is it possible, that he can have so degrading an idea of the American people, as to suppose they would send men here to legislate on their dearest interests, so base and corrupt, as to wish their courts so formed, that vice and not virtue should prevail in them? I am happy to say that gentleman is the only one who has uttered a sentiment so abhorrent to human nature. He also said, if you permit the State courts to execute your laws, you would have no constitution in ten years. I have not heard any one express a desire that you should have no courts, or that the State courts should execute all your laws; but I do not believe, that if the State courts were to execute your laws, that they would destroy the constitution which they are sworn to support. He has told us that we paid millions for an army which might be useless, and refused thousands to a Judiciary which was useful. As to the army, those who agree with me in sentiment, are as clear of it as it is possible for men to be of any political sin whatever; we always considered them useless, except in a small degree, and voted against them. But, says he, this is the President's measure; he may prevent it. This is indeed a bold assertion. Are a majority of this House so degraded, so mean, so destitute of honor or morality, as to act at the nod of a President? What the majority may hereafter do, I cannot tell; but I can say, as yet they have done nothing which even the eye of criticism can find fault with. But are we to infer from these charges, that it has heretofore been the practice for the President to give the tone to the majority of the House, and to wield them about as he pleased? I had, before, a better opinion of our adversaries. I had thought, and still think, that no man can wield a majority of this House; that the House is, and has been, too independent for this; to think otherwise, would be degrading to my country. Sir, I do not believe the gentleman from Delaware himself, with all his talents, can wield those with whom he generally votes, at his will and pleasure. Much has been said about the manner in which the late law was passed, and the purpose for which it was done. I hope I shall be pardoned for saying nothing on this subject; enough, if not too much has already been said on it; nor can I conceive that it has any thing to do with the question. The true question is, were there courts enough under the old system, to do the business of the nation? In my opinion there were. We had no complaints that suits multiplied, or that business was generally delayed; and when gentlemen talk about Federal courts to do the business of the people, they seem to forget that there are State courts, and that the State courts have done, and will continue to do almost the whole business of the people in every part of the Union; that but very few suits can be brought into the Federal courts, compared with those that may be brought into the State courts. They will be convinced that under the old system, we had federal judges and courts enough; besides, sir, I believe each State knows best what courts they need, and if they have not enough, they have the power and can easily make more. I am sure the old system answered every purpose for the State I live in as well as the new. He also told us, that we attempt to do indirectly what we cannot do directly. I do not know of any such attempt. The bill is certainly a direct attempt to repeal the act of the last session; but I have seen things done indirectly which I believe could not have been done directly; such was the army of volunteers; it surely was an indirect attempt to officer and get possession of the militia. The same gentleman challenges us to say there are any in the United States who prefer monarchy. In answer to this, I say, there were such during the American revolutionary war, and I have not heard that they had changed their opinion; but as he has told us there were jacobins in the country, it is not unfair to suppose there are monarchists; they being the two extremes. We are also charged with a design to destroy the whole Judiciary. If there is such a design, this is the first time I ever heard it; no attempt of the kind is yet made. But what is the fact? We only propose to repeal the act of the last session, and restore the Judiciary exactly to what it was for twelve years, and this is called destroying the Judiciary. To complete the scene, we were told of the sword, of civil discord, and of the sword of brother drawn against brother. Why such declamation? Why do we hear of such things on this floor? It is for them to tell who use the expressions; to me they are too horrid to think of. Do gentlemen appeal to our fears, rather than to our understanding? Are we never to be clear of these alarms? They have often been tried without producing any effect. Every instrument of death is dragged into this question; sword, bayonet, hatchet, and tomahawk; and then we are told that the passing this bill may be attended with fatal consequences to the women and children. Can it be possible, sir, that the gentleman was really serious when he talked about an injury to women and children? He also told us, if you pass the bill and it should produce a civil war, not only himself but many enlightened citizens would support the judges. And have we already come to this, that enlightened citizens have determined on their side in case of a civil war, and that it is talked of in this assembly with deliberation and coolness? We certainly were not sent here to talk on such topics, but to take care of the affairs of the nation, and prevent such evils. In fact, it is our duty to take care of the nation, and not destroy it. Compare this with the conduct of the former minority. I challenge them to show any thing like it in all their proceedings. Whenever we supposed the constitution violated, did we talk of civil war? No, sir; we depended on elections as the main corner-stone of our safety; and supposed, whatever injury the State machine might receive from a violation of the constitution, that at the next election the people would elect those that would repair the injury, and set it right again; and this, in my opinion, ought to be the doctrine of us all; and when we differ about constitutional points, and the question shall be decided against us, we ought to consider it a temporary evil, remembering that the people possess the means of rectifying any error that may be committed by us. Is the idea of a separation of these States so light and trifling an affair, as to be uttered with calmness in this deliberate assembly? At the very idea I shudder, and it seems to me that every man ought to look on such a scene with horror, and shrink from it with dismay. Yet some gentlemen appear to be prepared for such an event, and have determined on their sides in case it should happen. For my part, sir, I deplore such an event too much to make up my mind on it until it shall really happen, and then it must be done with great hesitation indeed. To my imagination, the idea of disunion conveys the most painful sensations; how much more painful then would be the reality! Who shall fix the boundaries of these new empires, when the fatal separation shall take place? Is it to be done with those cruel engines of death that we have heard, of, the sword, the bayonet, and the more savage instruments of tomahawk and hatchet? And is the arm of the brother to plunge them into the breast of brother, and citizen to be put in battle array against citizen, to make this separation which would ruin the whole country? And why is all this to be done? Because we cannot all think alike on political topics. As well might it be said, because we cannot all agree in the tenets embraced by each particular sect of our holy religion, because one is a Calvinist and another a Lutheran, that each should be employed in plunging the dagger into the heart of the other. But suppose, sir, you agree to divide these States, where is the boundary to be? Is it to be a river, or a line of marked trees? Be it which it may, both sides must be fortified, to keep the one from intruding on the other; both the new governments will have regular soldiers to guard their fortified places, and the people on both sides must be oppressed with taxes to support these fortifications and soldiers. What would become, in such a state of things, of the national debt, and all the banks in the United States? If we do wrong by adopting measures which the public good does not require, the injury cannot be very lasting; because at the next election the people will let us stay at home, and send others who will manage their common concerns more to their satisfaction. And if we feel power and forget right, it is proper that they should withdraw their confidence from us; but let us have no civil war; instead of the arguments of bayonets, &c., let us rely on such as are drawn from truth and reason. Another topic has been introduced, which I very much regret; it is the naming of persons who have received appointments from the late or the present President. I hope I shall be pardoned for not following this example. And one gentleman is named as having been an important member during the election of President by the late House of Representatives. It ought to be remembered there were others as important as the gentleman named. In talking about the late or the present President, it ought not to be forgotten that they both signed the Declaration of Independence, that they have both been Ministers in Europe, and both Presidents of the United States. Although they may differ in political opinion, as many of us do, is that any reason we should attempt to destroy their reputation? Is American character worth nothing, that we should thus, in my judgment, improperly, attempt to destroy it on this floor? The people of this country will remember that British gold could not corrupt nor British power dismay these men. I have differed in opinion with the former President, but no man ever heard me say, that he was either corrupt or dishonest; and sooner than attempt to destroy the fame of those worthies, to whose talents and exertions we owe our independence, I would cease to be an American; nor will I undertake to say that all who differ from me in opinion are disorganizers and jacobins. THURSDAY, February 25. _Judiciary System._ The House then went into a committee on the bill, sent from the Senate, entitled, "An act to repeal certain acts respecting the organization of the courts of the United States, and for other purposes." Mr. RUTLEDGE.--I beg leave, Mr. Chairman, to proffer my thanks to the committee for the indulgence with which they favored me yesterday, and at the same time to acknowledge the respect excited by the politeness of the honorable gentleman from Maryland, who moved for its rising. In the course of the observations I yesterday offered, I endeavored to show that it was the intention of the Convention to make our judges independent of both Executive and Legislative power; that this was the acknowledged understanding of all the political writers of that time; the belief of the State Conventions, and of the first Congress, when they organized our Judicial system. If I have been successful in my attempt to establish this position, and if (what I suppose cannot be denied) it be true in jurisprudence, that whenever power is given specially to any branch of Government, and the tenure by which it is to be exercised be specially defined, that no other, by virtue of general powers, can rightfully intrude into the trust; then I presume it must follow of consequence, that the present intermeddling of Congress with the Judicial Department is a downright usurpation, and that its effect will be the concentration of all power in one body, which is the true definition of despotism. As, sir, every thing depends upon the fair construction which this article in the constitution respecting the Judiciary is susceptible of, I must again read it. [Here Mr. R. read several clauses of the constitution.] Some of the clauses we see are directory and others prohibitory. Now, sir, I beg to be informed of what avail are your prohibitory clauses, if there be no power to check Congress and the President from doing what the constitution has prohibited them from doing? Those prohibitory regulations were designed for the safety of the State Governments, and the liberties of the people. But establish what is this day the ministerial doctrine, and your prohibitory clauses are no longer barriers against the ambition or the will of the National Government; it becomes supreme and is without control. In looking over those prohibitory clauses, as the Representative of South Carolina, my eye turns with no inconsiderable degree of jealousy and anxiety to the ninth section of the first article, which declares--[Here Mr. R. read the article respecting migration before the year 1808.] I know this clause was meant to refer to the importation of Africans only, but there are gentlemen who insist that it has a general reference, and was designed to prohibit our inhibiting migration as well from Europe as any where else. It is in the recollection of many gentlemen who now hear me, that, in discussing the alien bill, this clause in the constitution was shown to us, and we were told it was a bar to the measure. And an honorable gentleman from Georgia, then a member of this House, and now a senator of the United States, (and who had been a member of the Convention,) told us very gravely he never considered this prohibition as relating to the importation of slaves. I call upon gentlemen from the Southern States to look well to this business. If they persevere in frittering away the honest meaning of the constitution by their forced implications, this clause is not worth a rush--is a mere dead letter; and yet, without having it in the constitution, I know the members from South Carolina would never have signed this instrument, nor would the convention of that State have adopted it. My friend from Delaware, standing on this vantage ground, says to our opponents, Here I throw the gauntlet, and demand of you how you will extricate yourselves from the dilemma in which you will be placed, should Congress pass any such acts as are prohibited by the constitution? The judges are sworn to obey the constitution, which limits the powers of Congress, and says they shall not pass a bill of attainder or _ex post facto_ law, they shall not tax articles exported from any State, and has other prohibitory regulations. Well, sir, suppose Congress should pass an _ex post facto_ law, or legislate upon any other subject which is prohibited to them, where are the people of this country to seek redress? Who are to decide between the constitution and the acts of Congress? Who are to pronounce on the laws? Who will declare whether they be unconstitutional? Gentlemen have not answered this pertinent inquiry. Sir, they cannot answer it satisfactorily to the people of this country. It is a source of much gratification to me to know that my sentiments on this subject, as they relate to the constitutionality of it, are in unison with the wisest and best men in my native State. The Judicial system had proved so inconvenient there, as to render a new organization of it necessary some years past. There were gentlemen in the Legislature as anxious to send from the bench some of the judges as gentlemen here are to dismiss our federal judges. Personal animosities existed there as well as here, though not to so great an extent; but it was the opinion of a large majority of the South Carolina Legislature, that as the constitution declares, "the judges shall hold their offices during good behavior," the office could not be taken from them, the measure was abandoned, and the wise and cautious course pursued, which we wish gentlemen here to follow: the system was not abolished, but modified and extended; the judges had new duties assigned to them, and their number was increased, but no judge was deprived of his office. In South Carolina they have a court of chancery, consisting of three chancellors, and the law establishing it requires the presence of two judges to hold a court. During a recess of the Legislature, one of the chancellors resigned and another died. The functions of the court of consequence became suspended. All the business pending in it was put to sleep. The public prints were immediately filled with projects for destroying the court, which had been denounced as unnecessary. As the citizens of the western part of the State had not participated much in the benefits derived from the court of chancery, many of the most influential of them deemed it of little utility. The opposition assumed so formidable an aspect as to determine the Governor (who exercises the power of appointing judges during the recess of the Legislature) not to make any appointment, believing the court would be abolished. When the Legislature met, an effort was made to abolish the court, but a large majority giving to the constitution the honest meaning of its framers, considered the judges as having a life estate in their offices, provided they behaved well; and the vacancies on the chancery bench were immediately supplied. That the national Judiciary Establishment is comparatively more costly than are the State Judiciaries, is far from being the case, I believe. It may be so in Virginia, where they have one chancellor, with little salary and much business, but it is not so in other States. In South Carolina, we have six judges at common law, at six hundred pounds sterling a year each; three chancellors at five hundred pounds each; which, together with the salaries and fees of office of the attorney general, master in chancery, solicitors, clerks, and sheriffs, amount to six thousand two hundred pounds sterling. And yet, sir, justice, I believe, is nowhere cheaper than in South Carolina. By the judicious structure of her judiciary system, the streams of justice are diffused over the whole State, and every man is completely protected in his life, liberty, property, and reputation. The courts are almost constantly in session. The judges are gentlemen of high talents, integrity, and strict impartiality; and every one who goes into the court of that State, not only obtains ample justice, but obtains it promptly; this, sir, is what I call cheap justice. The gentleman from Virginia has seen fit to notice the law which laid a direct tax, and said it was imposed when we knew the Administration of this Government was soon to pass from those then in power, and was resorted to as a means of extending Executive patronage, and to make provision for the friends of an expiring Administration. Can the honorable gentleman be serious in all this? Does he remember when we passed this law? It was in 1798, when I will be bold to say, the Administration enjoyed the highest degree of popular favor. In no popular Government, perhaps, was an Administration more popular than was the former Administration, at the time this tax was laid. Sir, this law had no connection with personal or party considerations. Like all the measures of the past Administration, it was designed to promote the public good. Had we, like our opponents, consulted the caprices and prejudices, and not the real interests of our constituents; had we been merely attentive to popular favor, we should not have passed this law. At the crisis it was passed, the public good demanded it, and we were regardless of every other consideration. A nation that had lighted up the flame of war in every corner of Europe, that was prostrating the liberties of every free people, and subverting the Government of every country, saw fit to menace us; told us for the preservation of our peace and independence we must pay tribute. This degrading measure was scornfully rejected by our Administration; they said, if we must fall, we will fall after a struggle; and our citizens prepared themselves for war with alacrity, and regarded every sacrifice as inconsiderable, compared with the great sacrifice of our independence. With this prospect of immediate war, we should have acted not only unwisely but treacherously, had we trusted for public income to the revenue derived from trade. Had our trade been destroyed, there would have been a complete destitution of revenue, and to place the means of national defence as far beyond the reach of contingency as possible we imposed the direct tax. We knew this law would prove arms and ammunition to those who were inventing all the falsehood credulity could swallow, and who were busily employed in misrepresenting and calumniating the conduct of the Government. We did suppose they might make this law their artillery to batter down the Administration; but we were not deterred from our honest purposes by this expectation; a change of men, when compared with a change of government, weighed with our minds as dust does in the balance; our measures did not aim at popularity, and we were just to our country, regardless of party consequences. At this early period, says the gentleman, it was to have been calculated what would be the result of the Presidential election. Sir, those must have been gifted with second sight, they must have been prophets indeed, who could have then foretold how the election would issue; the result was as doubtful as any event could be, till within a few days of the election. It is recollected that every thing depended upon the South Carolina vote; all the gentlemen in nomination went there with an equal number of votes; the anxiety displayed at the time by the gentlemen here from Virginia, proved they then deemed it doubtful how the election would terminate. Indeed, sir, nothing could have been more doubtful, and I believe it is fully known to the ministerial side of this House, that it depended upon one of the gentlemen nominated, who had not the Carolina votes, to have obtained them, and produced to the election a different result; but his correct mind was obnoxious to any intrigue; it would not descend to any compromise, and this honorable man knew that no station could be honorable to him unless honorably obtained. In the very wide range which the gentleman from Virginia has permitted himself to take, he has been pleased to notice the conduct of the late Congress when they were occupied in the election of the President of the United States, and he has said we were then "pushing forward to immolate the constitution of our country." What does all this mean, sir? What, sir! because we, of the two gentlemen who had from the electors an equal number of votes, did not prefer him who was from Virginia, are we to be charged with an immolation of our constitution? Sir, the gentleman from Virginia was not a member of the last Congress, and lest he should not know the history of the transaction to which he alludes, I will give it. The Electors chosen in the different States gave the same number of votes for Thomas Jefferson and Aaron Burr; there being a tie, it devolved, by the direction of the constitution, upon the House of Representatives to make an election. We sincerely believed that Mr. Burr was the best and the most fit man to be President, and we accordingly voted for him; we continued to vote for him six and thirty times; we were anxious to have him elected, and we deprecated the election of the other candidate; but when we found gentlemen were determined not to have the candidate from New York, and said they would have him from Virginia President, or they would have no President, we, who venerated our constitution too sacredly to do any thing which should hazard the loss of it, yielded. We believed Mr. Jefferson radically and on principle hostile to the National constitution; we believed some of the most important features in it obnoxious to him; we believed him desirous of destroying the independence of our Judiciary; we believed him opposed to the Senate as now organized, and we believed him destitute of that degree of energy necessary to maintain the general liberty of the people of the United States. With these impressions deep upon our minds, we should have been traitors to our country had we voted for the gentleman from Virginia, as long as there was any prospect left to us of elevating the gentleman from New York; but when we found the object of our preference was so obnoxious to gentlemen on the other side, that they would hazard the having of no President rather than have him, we ceased our opposition.[67] And this is what the honorable member from Virginia has been pleased to call "pushing forward to immolate the constitution." I regret, Mr. Chairman, being compelled to mention names and say any thing of a personal nature, but I am obliged to do it in pursuing the gentleman from Virginia, who in his extraordinary course has not only mentioned the names of gentlemen, but ascribed unworthy motives for their conduct. He has said Mr. Read and Mr. Green voted for the law under which they got appointments. Although I have abundant proof that neither of these gentlemen solicited their offices, that they were given spontaneously, and without being expected, yet I will merely answer this observation by mentioning what is very generally known to all gentlemen who have been of late in the councils of the nation; it is, that it was the invariable practice of the former Executive to appoint gentlemen to office without previously advising with them. It is well known that under the law gentlemen are now endeavoring to repeal, Mr. Jay was appointed Chief Justice, and about the same time several gentlemen in this House were appointed to some of the most honorable stations under our Government; the Executive's intention, it is well known, had not been previously notified to them; it is well known they all declined accepting the places proffered to them. Permit me, sir, to give a brief history of the case of Mr. Green, on which the gentleman from Virginia has dwelt so much. The district judge in Rhode Island was appointed circuit judge, and Mr. Green was appointed district judge. On the fourth day of March, Mr. Green took his seat in the Senate; the friends of the Administration objected to his keeping it; they said he was a judge, as appeared by the journals of the Senate; they here made a complete recognition of his appointment as judge, and he vacated his seat. After getting home he received his commission, in which the blanks had been filled up with the words circuit judge, instead of district judge. Mr. Green enclosed his commission to the Executive, in a letter most profoundly respectful, and requested the errors of the clerk in the Department of State might be corrected, and his commission made to conform to the appointment, as recorded on the Senatorial journal. To this letter, which was in highly respectful terms, the President would not deign to have any answer given; he pocketed Mr. Green's commission, and placed another gentleman in his office. This is a history of the appointment of Mr. Green, and the manner in which the President "corrected the procedure." Sir, the Judiciary is, in the fabric of the constitution, not a Corinthian pillar, not any ornament added by Congress. It is, sir, the grand Doric column; one of three foundation pillars, formed not by Congress, but by the people themselves; it binds together the abutment, is laid as the foundation of the late fabric of our Government, and if you demolish it, the grand arch itself will totter and the whole be endangered. We are asked by the gentleman from Virginia if the people want judges to protect them? Yes, sir, in popular governments constitutional checks are necessary for their preservation; the people want to be protected against themselves; no man is so absurd as to suppose the people collectedly will consent to the prostration of their liberties; but if they be not shielded by some constitutional checks they will suffer them to be destroyed; to be destroyed by demagogues, who filch the confidence of the people by pretending to be their friends; demagogues who, at the time they are soothing and cajoling the people, with bland and captivating speeches, are forging chains for them; demagogues who carry daggers in their hearts, and seductive smiles in their hypocritical faces; who are dooming the people to despotism, when they profess to be exclusively the friends of the people. Against such designs and artifices were our constitutional checks made to preserve the people of this country. Will gentlemen look back to the histories of other countries, and then tell us the people here have nothing to apprehend from themselves? Who, sir, proved fatal to the liberties of Rome? The courtier of the people; one who professed to be "the man of the people," who had willed his fortune to the people, and had exposed his will to the public eye; a man who, when a Crown was proffered to him, shrunk from the offer, and affectedly said, it did not come from the people. It was Julius Cæsar who prostrated the liberties of Rome; and yet Cæsar professed to be the friend of Rome, to be in fact the people. Who was it, that, in England, destroyed the Representative Government, and concentrated all its powers in his own hands? One who styled himself the man of the people; who was plain, nay studiously negligent in his dress; disdaining to call himself Mister, it was plain unassuming Oliver; Oliver Cromwell, the friend of the people, the protector of the Commonwealth. The gentleman from Virginia says he would rather live under a despot than a Government where the judges are as independent as we would wish them to be. Had I his propensities, I, like him, would fold my arms and look with indifference at this attack upon the constitution. It has been my fortune, Mr. Chairman, to have visited countries governed by despots. Warned by the suffering of the people I have seen there, I am zealous to avoid any thing which may establish a despotism here. It is because I am a republican in principle and by birth, and because I love a republican form of Government and none other, that I wish to keep our constitution unchanged. Independent judges, at the same time that they are useful to the people, are harmless to them. The judges cannot impose taxes; they cannot raise armies; they cannot equip fleets; they cannot enter into foreign alliances: these are powers which are exercised without control by despots; and as the gentleman from Virginia does not hold despots in abhorrence, he and I can never agree in our opinions on Government. Whether another honorable gentleman from Virginia (Mr. RANDOLPH) has derived all the service from his sling and his stone he had expected, or whether he feels acquitted of his promise, and now thinks himself capable of prostrating the Goliath of this House, armed cap-à-pie with the constitution of his country, I cannot conjecture. Whether he has discovered the skill and the prowess of David, or whether he is likened to him only by the weapons he wars with, it is for the committee to judge; for myself I must say, that his high promises had excited expectations which in me have not been realized, and when the gentleman sat down I was sorry to find my objections to the bill on your table undiminished. I say sorry, for I can lay my hand upon my heart, and in the fulness of sincerity declare, there is nothing I desire more anxiously than to be convinced by gentlemen that this measure is not unconstitutional. The gentleman has asked whether, if we had created an army of judges, and given them monstrous high salaries, it would not be right to repeal the law; that if the power exists to repeal any law which might have passed on this subject, it might not now be used? and has been pleased to say, we would have created more judges and given them higher salaries, if we had not wanted nerves; and tells my honorable and learned friend from Delaware that we were restrained by the same feebleness of nerve which induced us at the Presidential election to put blank votes into the ballot box. Sir, my friend from Delaware does want that sort of nerve that some gentlemen now discover. Although he is as brave as he is wise, yet in living without fear he will live without reproach, and never make himself liable to the charge of prostrating the constitution of his country; for such a work it is true he has no nerve. The observations of one honorable gentleman from Virginia (Mr. GILES) being now reiterated by another respecting the course of conduct we pursued at the Presidential election, shows that time has not abated the resentment of Virginia which we excited by our not voting for the Virginia candidate. Permit me here to declare, sir, that in reviewing all my public conduct, I can discover no one act of which I am more satisfied than my having put a blank vote into the ballot-box. Much has been said on this subject. My friend from Delaware and myself have been denounced by the jacobins of the country; at their civic feasts, and in their drunken frolics, we have been noticed. European renegadoes, who have left their ears on the whipping posts of their respective countries, or who have come to this country to save their ears, have endeavored to hang out terrors to us in the public prints; nay, sir, circular letters have been diffused through the country, charging us with the intention of preventing at one time the election of a President, and at another with the design of defeating the vote of the Electors and making a President by law. This was all a calumny, and as it relates to the South Carolina delegation, I declare they had no intention of defeating the public will; they never heard of any project for making a President by law; they had but one object in view which they pursued steadily as long as there was any prospect of attaining it. The gentleman from Virginia and the gentleman from New York had an equal number of votes; we preferred the latter; we voted for him more than thirty times, but when we found our opponents would not unite with us, and seemed obstinately determined to hazard the loss of the constitution rather than join us, we ceased to vote; we told them we cannot vote with you, but by ceasing to vote, by using blank votes, we will give effect to your votes; we will not choose, but we will suffer you to choose. Surely, Mr. Chairman, there was nothing in all this which had any aspect towards defeating the public will. Why I did not prefer the gentleman who ultimately was preferred, has already been mentioned. This is a subject on which I did not expect to be called upon to explain; but the gentlemen from Virginia have called, and it was necessary to answer. Permit me to state, also, that besides the objections common to my friend from Delaware and myself, there was a strong one which I felt with peculiar force. It resulted from a firm belief that the gentleman in question held opinions respecting a certain description of property in my State, which, should they obtain generally, would endanger it, and indeed lessen the value of every other.[68] Following the example set by his colleague, the gentleman from Virginia has bestowed much censure on the past Administration, and made it a serious charge against them, having appointed under this law a gentleman of Maryland, who he says was not with us formerly, but unfurled his standard in the service of his King, and fought against his countrymen, whom he then deemed rebels. I did not expect, Mr. Chairman, to hear this observation from one of the friends of the Executive. Since the fourth of March last, I thought philosophy had thrown her mantle over all that had passed; that sins were to be forgotten and forgiven, and to prove the sincerity of this forgiving spirit, sinners were to be distinguished by Executive favors. One would have thought so in reviewing Executive conduct; where persons had been imprisoned and fined under our laws, they we know were released; where fines had actually been paid, the officers of Government had been ordered to return them, and not only tories had been appointed to office, but old tories, rank old tories, who had been banished. The present collector of Philadelphia, for the internal revenue, has been appointed since the fourth of March last, and although he never, like the gentleman alluded to, shivered lances in the service of his King, yet he was actively employed in the more safe service of giving information to the British Generals, and marching before Sir William Howe, decorated with laurels, conducted him into the metropolis of his native State. Sir, there are many instances of this kind. Have gentlemen forgotten the young Englishman who was so busily employed here last winter during the Presidential election, that in seeing him one would really have supposed him not only a member of this House, but, like him of Tennessee, holding an entire vote at his command? This youngster was sent out here by some merchants in England to collect debts due to them in this country, and his father, whose tory principles carried him from America early in the Revolution, is now subsisting on a royal pension; and this young man has been appointed our Consul at London, and the former consul, a native and stanch American, whose conduct had been approved by merchants generally, has been turned out to create a vacancy. The gentleman from Virginia has repeated the observation of his colleague, that the people are capable of taking care of their own rights, and do not want a corps of judges to protect them. Human nature is the same every where, and man is precisely the same sort of being in the New World that he is in the Old. The citizens of other Republics were as wise and valiant and far more powerful than we are. The gentleman from Virginia knows full well, that wherever the Roman standard was unfurled, its motto, "_Senatus Populusque Romani_," proclaimed to a conquered world that they were governed by the Senate and the people of Rome. But now, sir, the Roman lazzaroni, who crouching at the gates of his Prince's palaces, begs the offals of his kitchen, would never know that his ancestors had been free, nor that the people had counted for any thing in Rome, or that Rome ever had her Senate; did he not read it on the broken friezes and broken columns of the ruined temples, whose fragments now lie scattered over the Roman forum! TUESDAY, March 2. Mr. DANA.--After this vindication of meritorious men who have been removed from office, I will now attend more particularly to some observations of the gentleman from Virginia. He has spoken of the judicial act of the 13th of February, 1801, as if the passage of it had been attended with improper circumstances, and thence has attempted to deduce the inference that it ought to be repealed. He read part of the journal of the last session, and charged certain members of the House with having been engaged in opposing the public will at the time when the act was approved. The journal shows, that on the 13th of February, eighteen hundred and one, the representatives, voting by States, proceeded to the twenty-ninth ballot for President, and the result was the same as had taken place before; the votes of eight States given for Thomas Jefferson; the votes of six States for Aaron Burr; and the votes of two States divided. Much has been said on this topic, which has at length been brought forward as a public charge by the gentleman from Virginia. It is now time that it should be examined. According to the principles of our Government, the public will, when explicitly ascertained by an authentic act, is the law of the land, and must be obeyed. Of this there can be no doubt; it is beyond all question. But this public will is not merely the will of part of the community, a section of the people; it is the will of the great body of American citizens. The highest and most solemn expression of the public will in this country is the Constitution of the United States. This was agreed to by the General Convention; was transmitted to the Legislatures of the several States by the unanimous resolution of Congress under the Confederation; was recommended by all those Legislatures, when they passed laws for submitting it to conventions for their ratification, and was finally ratified by the conventions of all the States in the Union. It was thus established by the general consent. In this we should acknowledge the high authority of the public will. There is, however, a misfortune which attends the argumentation of some gentlemen. They substitute a part for the whole; and would confound the will of a certain portion of the people, however vaguely expressed, with the will of the whole public body as explicitly manifested by an authentic act. What manifestation was there of the public will relative to the late election of a President of the United States? The only authentic evidence of the public will on this subject proved, that Thomas Jefferson, of Virginia, and Aaron Burr, of New York, were equally the objects of approbation. The majority of the electors had given them an equal number of votes. What then was the difference of right between them? Was it, that one of the candidates was a Virginian? Was it that the members of Congress were assembled on the banks of the Potomac, with Virginia in view on the other side? Must it be acknowledged as the prerogative of that State to impose a Chief Magistrate on the Union? Or was there a difference of right, because Virginia, with its extent and population, could make more clamor than any other State? The noise of so great a State may sometimes seem loud enough for the voice of the people of the United States. And are they, therefore, in this House to be confounded with each other? If so, the observations about the public will, of which we have lately heard so much from a certain quarter, must be understood to mean the will of Virginia; and we may thus judge of the argumentation when gentlemen from that State are speaking of the respect due to the public will. Two persons were presented, in constitutional form, to the House of Representatives, as being equally candidates for the office of President: one from Virginia and the other from New York. When they were so presented, the choice between the two candidates was devolved on the Representatives, by the Constitution of the United States. After maturely considering the question, it was for them, as ultimate electors, to vote as they judged to be most for the public welfare. They voted by States, as required by the constitution. And are gentlemen to be here accused for exercising the constitutional right of election according to the conviction of their own judgments? When called upon, under the constitution, to elect one of the two candidates, were they not bound, by the nature of their duty, to give their votes according as the one or the other was by them judged to be more or less preferable? Upon what principle can gentlemen be accused of hostility to the interest of the people, because they did not think proper to elect the candidate from Virginia? Are our affairs already reduced to such a situation that it is to be charged as a public offence, if any member of this House has failed to vote for a Virginian to be the President of the United States? It was the constitutional right of members of this House, in deciding between the two candidates, to give their ballots for the one whom they believed to be superior in practical capacity for administering the Government--one whom they believed to be not hostile to the commercial interests of the country, and not disposed to subject the Union to the domination of a particular State, whatever might be its lordly pretensions in consequence of extent of territory or antiquity of dominion. As the gentleman from Virginia has thought proper to speak of events which took place about the time of passing the act in question, allow me, sir, to mention one circumstance, of which he has said nothing. The act, as finally enrolled, was signed by the Speaker of the House of Representatives after the balloting for a President had commenced; and the Clerk carried it to the other House for the signature of their President. The candidate from Virginia was then in the chair of the Senate. The Clerk of this House, on first presenting himself, as was customary, at the door of the Senate Chamber, was not admitted. The situation came to the knowledge of a Senator, and was communicated to the Senate. After the sense of that body was found to be for his admission, the door was opened, and the Clerk was admitted to deliver his message, and present the enrolled bill for signature. It was then signed by the President of the Senate. What should be thought of this, as taken in connection with the fate of the act and pendency of the Presidential election? Was it a circumstance which must ever be remembered with mortification, and which therefore will never be forgiven? To give a further color to the suggestion that the passage of the act was attended with improper circumstances, the attempt has been made to impress an idea that it was adopted without mature deliberation, and hurried through its different stages in a reprehensible manner. If we are not willing to be misled by pretext, let us examine what was the fact. A recurrence to the journals of the House will prove that the subject of the Judicial Establishment was recommended by the President of the United States to the attention of Congress at two successive sessions. In his communication at the opening of the first session of the sixth Congress, he recommended the subject in the following terms: "To give due effect to the civil administration of Government, and to ensure a just execution of the laws, a revision and amendment of the Judiciary system is indispensably necessary. In this extensive country it cannot but happen that numerous questions respecting the interpretation of the laws and the rights and duties of officers and citizens must arise. On the one hand, the laws should be executed; on the other, individuals should be guarded from oppression. Neither of these objects is sufficiently assured under the present organization of the Judicial Department. I therefore earnestly recommend the subject to your serious consideration." In the House of Representatives, this part of the President's Speech was referred to a select committee. They reported a bill which contained a variety of provisions for amending the system. The bill was referred to a Committee of the Whole, in which it was discussed several days, and was afterwards recommitted to the same gentlemen who had reported it. As it was printed for the use of the members, and the subject was extensively interesting to the community, it was judged proper to defer a final decision until another session, and in the mean time gentlemen might have an opportunity to acquire information that would assist them to form a more satisfactory judgment. At the second session of the sixth Congress, the subject was again recommended by the President. These are his words: "It is, in every point of view, of such primary importance to carry the laws into prompt and faithful execution, and to render that part of the administration of justice which the constitution and laws devolve on the Federal courts, as convenient to the people as may consist with their present circumstances, that I cannot omit once more to recommend to your serious consideration the Judiciary system of the United States. No subject is more interesting than this to the public happiness; and to none can those improvements which may have been suggested by experience be more beneficially applied." On this recommendation a select committee was appointed. That committee reported a bill to provide for the more convenient organization of the courts of the United States. The bill underwent a long discussion and a variety of amendments. It was finally passed in the House of Representatives by a majority of 51 to 43; and in the Senate by a majority of 16 to 11. After knowing these facts, will gentlemen have the hardihood to call this a hasty measure? Compare the whole proceedings with what took place respecting a former act. Gentlemen have spoken of the general power of Congress to repeal acts passed by their predecessors. Are they prepared to repeal the act to which I now refer? It is the act relative to the temporary and permanent seat of Government, passed in July, 1790. That act was carried in the Senate by a majority of 14 to 12. In the House of Representatives, a Committee of the Whole agreed to it as it came from the Senate. Twelve different amendments were proposed in the House; the yeas and nays were taken on each of them, and every amendment was rejected--all in one day. A motion was then made for the third reading of the bill on the Monday following; the motion was negatived. It was moved that the third reading should be on the next day; this was negatived. The yeas and nays were taken twelve times during the sitting. A motion was made to adjourn; this was negatived. The general rule of the House being against reading a bill twice on the same day without special order, a motion for then reading the bill the third time was made on the part of its advocates, and carried. On taking the yeas and nays, for the thirteenth time in one day, the bill passed by a majority of 32 to 29. Mark the smallness of the majority in both Houses; the utter rejection of every amendment in the House of Representatives; the hurried manner in which it was forced on to the final question. Recollect other considerations relative to the passage of that act, and then judge whether it was not attended with circumstances signally improper. If matters of this kind constitute a sufficient cause for gentlemen to repeal any act passed by their predecessors, why should we remain here in pursuance of this act? Will any gentleman say it is for our personal convenience that the seat of Government is now at this place? Is it at present for the public convenience? Is it less expensive for individuals, or for the public, than it would be in some of your commercial cities? Have you here the opportunities for valuable information which might be had elsewhere? What, then, should detain us, if it be not a regard to stability and consistency in public proceedings, combined with a regard to the expectations of respectable persons seriously interested in the question? But if you may repeal the act organizing the Judicial system, what principle is there that ought to confine the Government to the place in which we are now assembled? Repeal this act, as is proposed by the bill on your table, and you shake the principle of public stability and consistency. Repeal this act, and there can be no principle of constitutional obligation, none of political honor, or legal right, to detain you here. WEDNESDAY, March 3. Mr. LOWNDES moved that the further consideration of the bill be postponed until the first Monday in December next; on which a debate of considerable length ensued; when, the question being taken thereupon, it passed in the negative--yeas 32, nays 59. And, after debate thereon, the main question was taken that the said bill do pass, and resolved in the affirmative--yeas 59, nays 32, as follows: YEAS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, Phanuel Bishop, Richard Brent, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, Thomas T. Davis, John Dawson, William Dickson, Lucas Elmendorph, Ebenezer Elmer, John Fowler, William B. Giles, Edwin Gray, Andrew Gregg, Joseph Heister, William Helms, Wm. Hoge, James Holland, David Holmes, George Jackson, Charles Johnson, William Jones, Michael Leib, John Milledge, Samuel L. Mitchill, Thomas Moore, James Mott, Anthony New, Thomas Newton, jun., Joseph H. Nicholson, John Randolph, jun., John Smilie, John Smith, (of New York,) John Smith, (of Virginia,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jun., John Stewart, John Taliaferro, jun., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, John P. Van Ness, Joseph B. Varnum, Isaac Van Horne, and Henry Woods. NAYS.--Thomas Boude, John Campbell, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, William Eustis, Abiel Foster, Calvin Goddard, Roger Griswold, William Barry Grove, Seth Hastings, Joseph Hemphill, Archibald Henderson, William H. Hill, Benjamin Huger, Thomas Lowndes, Lewis R. Morris, Joseph Pierce, Thomas Plater, Nathan Read, John Rutledge, John Stanley, Benjamin Tallmadge, Samuel Tenney, Thomas Tillinghast, George B. Upham, Killian K. Van Rensselaer, Peleg Wadsworth, Benjamin Walker, Lemuel Williams, and Henry Woods. FRIDAY, March 5. _State Balances._ Mr. THOMAS, from the committee appointed to inquire into the expediency of extinguishing the claims of the United States, for certain balances, which, by the Commissioners appointed to settle the accounts between the United States and the individual States, were reported to be due from several of the States to the United States, made a report, as follows: That the following balances were, by the said Commissioners, reported to be due from the States hereinafter mentioned, to wit: From the State of New York, two millions seventy-four thousand eight hundred and forty-six dollars; from the State of Pennsylvania, seventy-six thousand seven hundred and nine dollars; from the State of Delaware, six hundred and twelve thousand four hundred and twenty-eight dollars; from the State of Maryland, one hundred and fifty-one thousand six hundred and forty dollars; from the State of Virginia, one hundred thousand eight hundred and seventy-nine dollars; and from the State of North Carolina, five hundred and one thousand and eighty-two dollars. That, as none of these States has evinced a disposition to pay any part of those balances, except the State of New York, which has been credited on the books of the Treasury for two hundred and twenty-two thousand eight hundred and ten dollars and six cents, for money expended in erecting fortifications, pursuant to an act of Congress, passed the 5th of February, 1799; but as it would be unequal to ask a further payment from that State exclusively, and as it does not appear that any measure of coercion can ever be resorted to, a further continuance of the demands against those States, the justice and equity of which they do not admit, will, in the opinion of the committee, answer no useful purpose; but, on the contrary, is calculated to occasion perpetual irritation and disquiet, as well to the creditor as to the debtor States. The committee are, therefore, of opinion, that it is expedient to extinguish the claims of the United States for those balances, and for that purpose report a bill, which is herewith submitted. The report was laid on the table. The bill was twice read, and committed to a Committee of the whole House on Wednesday next. WEDNESDAY, March 10. An engrossed bill for revising and amending the acts concerning Naturalization was read the third time, and on the question that the same do pass, it was resolved in the affirmative--yeas 59, nays 27, as follows: YEAS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, James A. Bayard, Phanuel Bishop, Thomas Boude, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Thomas T. Davis, John Dawson, John Dennis, William Dickson, Lucas Elmendorph, Ebenezer Elmer, William Eustis, John Fowler, Wm. B. Giles, Andrew Gregg, William Barry Grove, Joseph Heister, William Helms, Joseph Hemphill, William Hoge, James Holland, David Holmes, George Jackson, William Jones, Michael Leib, John Milledge, Samuel L. Mitchill, Thomas Moore, Thomas Newton, jun., Joseph H. Nicholson, John Smilie, Israel Smith, John Smith, (of New York,) John Smith, (of Virginia,) Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Stewart, David Thomas, Thomas Tillinghast, Philip R. Thompson, Abram Trigg, Philip Van Cortlandt, John P. Van Ness, Joseph B. Varnum, Isaac Van Horne, Robert Williams, and Henry Woods. NAYS.--John Campbell, Manasseh Cutler, Samuel W. Dana, John Davenport, Abiel Foster, Calvin Goddard, Roger Griswold, Archibald Henderson, William H. Hill, Benjamin Huger, Thomas Lowndes, Ebenezer Mattoon, Lewis R. Morris, Thomas Plater, Nathan Read, John Rutledge, John C. Smith, Josiah Smith, John Stanley, Benjamin Tallmadge, Samuel Tenney, George B. Upham, Killian K. Van Rensselaer, Peleg Wadsworth, Benjamin Walker, and Lemuel Williams. THURSDAY, March 11. _Wyoming Controversy._ The House went into a Committee of the Whole on the report of the committee to whom was referred the petition of sundry inhabitants of the State of Pennsylvania, settled on the lands claimed under grants from the State of Connecticut, antecedent to the trial before the court of commissioners between the State of Pennsylvania and Connecticut. The report of the committee embraces an historical view of the Wyoming controversy, recites the act of Pennsylvania, for preventing intrusions upon land in Northampton, Northumberland, and Luzerne Counties. The report then proceeds to state: "The petitioners complain of these acts as unconstitutional, and pray that provisions may be made by law for transferring the proceedings under these laws from the State Courts of Pennsylvania to the Courts of the United States; and that further provision may be made by law, that in the trial of any prosecution in virtue of the said acts the defendant may have a _venire facias_ to summon juries from some State, other than Pennsylvania. Your committee conceive that the right of jurisdiction was finally settled by the decree of Trenton, of the 30th December, 1783, and that by the decision of the circuit court for the district of Pennsylvania in April, 1795, the whole question of the right of soil was fully taken up and decided by the court, in a case the most favorable for the defendant; which decision not having been revised and reversed, should also be considered as final and conclusive. "Your committee therefore, upon the whole circumstances of the case, are of opinion, that the measures contemplated by the petitioners would tend very much to increase the embarrassments already experienced by the State of Pennsylvania, in extending and enforcing its lawful jurisdiction over the lands in question, and that it would be highly inexpedient on the part of the United States to interfere with the regulations of the States in that respect, or to countenance, by any means whatever, any circumstances of insubordination to the State authority. "Your committee are therefore of opinion that the prayer of the petitioners ought not to be granted." After a debate, the committee rose and reported their agreement to the report. A motion was made and lost to recommit the report to a select committee. It was then moved to postpone the further consideration of the report till the last day of November next. Not carried. The question was then taken on concurring with the Committee of the Whole in their report, by yeas and nays, and agreed to--yeas 60, nays 17. And so the petition was rejected. FRIDAY, March 12. The House being informed that NARSWORTHY HUNTER, the Delegate from the Mississippi Territory, in this House, died last evening: On motion, it was _Resolved_, That a committee be appointed to take order for superintending the funeral of NARSWORTHY HUNTER, late a Delegate from the Mississippi Territory; and that this House will attend the same. _Resolved_, That the members testify their respect for the memory of the said NARSWORTHY HUNTER, by wearing a crape on the left arm, for one month. _Resolved_, That the SPEAKER of this House address a letter to the Governor of the Mississippi Territory, to inform him of the death of NARSWORTHY HUNTER, the Delegate from the said Territory in this House, in order that measures may be taken to supply the vacancy occasioned thereby. _Ordered_, That Mr. LEIB, Mr. DAVIS, Mr. HOLLAND, Mr. RUTLEDGE, and Mr. LEWIS R. MORRIS, be appointed a committee, pursuant to the first resolution. _State Balances._ The House resolved itself into a Committee of the Whole on the bill to extinguish the claims of the United States for balances reported against certain States by Commissioners appointed to settle the accounts between the United States and the individual States. Mr. THOMAS.--Mr. Chairman, I rise, with a great deal of diffidence, to deliver my sentiments on this floor, as I have not been accustomed to public speaking; however, a sense of my duty as a Representative of the United States, as well as the immediate Representative from the State of New York, impels me, on this occasion, to ask the indulgence of the Committee while I make a few remarks on the subject of the bill now under consideration. Sir, a number of the debtor States, and particularly the one which I have the honor to represent, have always believed that they were prodigiously injured in the settlement that was made; they have always believed that there was something radically wrong, grossly unequal, in the accounts exhibited by the individual States, and allowed by the Board of Commissioners; in this belief, they have frequently called for information on the subject, for a re-examination of that settlement, and have as often been denied it. Much might be said to prove that the very economical system adopted and adhered to by the State of New York in limiting the prices of produce, and in liquidating the accounts of her citizens for supplies furnished during the Revolutionary war, operated particularly prejudicial to that State in the settlement. I shall, however, waive any remarks on this for the present, and confine myself principally to the rule which was adopted for apportioning the expenses of the war among the several States. Sir, the committee will recollect that by an act of Congress passed in the year 1789, the enumeration of inhabitants made in the year 1791 was adopted as the rule for apportioning this debt among the thirteen States. I shall in the first place examine the original contract entered into by these States, and under which these expenses were incurred, and then endeavor to show the effect which, adopting an enumeration made seven or eight years after the close of the war, had upon the several States different from what the same rule would have produced had the apportionment been made according to the numbers in each State at that period, say 1784. In the year 1778, the people of these States entered into a confederation for various purposes, one of which was, to prosecute the war against Great Britain. In the eighth article of this compact it was expressly agreed that-- "All charges of the war, and all other expenses that should be incurred for the common defence, and general welfare, and allowed by the United States in Congress assembled, should be defrayed out of a common treasury, which should be supplied by the several States in proportion to the value of all lands within each State granted to or surveyed for any person as such lands and the building and improvements thereon should be estimated, according to such mode as the United States in Congress assembled, should from time to time direct and appoint." This, Mr. Chairman, was the agreement under which this debt was incurred; and here allow me to ask the honorable gentleman from Massachusetts (Mr. BACON) whether he was correct when he told us the other day that this settlement had been made agreeably to the articles of Confederation; and, further, whether, agreeably to that compact, the State which he represents would have been allowed for her losses in the Penobscot expedition, which has enabled her to become a creditor State of upwards of one million two hundred thousand dollars, and more than one-third of the whole amount of the balances. Sir, had the original agreement under which these expenses were incurred been adhered to in the settlement, no one ought now to complain; but, in order to comply with it, the expenses of the war ought to have been apportioned among the several States according to the value of the lands and buildings at the time these expenses were incurred, and I do contend that the period immediately after the termination of the war was the only proper one for carrying into effect this stipulation. I am persuaded that no gentleman on this floor will deny that the existing circumstances of the several States at that period were the most proper to determine the just proportion which each State ought to pay of these expenses, by whatever rule might be adopted. Admitting, then, that Congress had the power, and it was judged expedient to deviate from the original contract, and adopt as the rule of apportionment the enumeration of inhabitants as a more practicable one, ought it not to have had reference to the numbers in each State at the close of the war? Most unquestionably, Mr. Chairman, no gentleman will deny this, and that the year 1784 was the proper time. It may, however, be said that no enumeration was made till the year 1791, seven years afterwards. I grant it. But will this alter the justness of my position? Not at all. It must be obvious in the mind of every gentleman who has reflected on the subject, that the relative numbers in each State had changed materially between the year 1784, when this settlement ought to have been made, and the year 1791, when it was made. In order to establish this fact, I have adopted this method; I have admitted what I believe every gentleman who hears me will, without hesitation: that there has been no material variation in the increase of population in the several States since the year 1784; that the increase was nearly, if not correctly, in the same ratio between the years 1784 and 1791, with the increase between the years 1791 and 1801; that is, that the relative increase of population in the several States was nearly, if not correctly, in the same proportion for the seven years previous to the year 1791 that it was for the ten years subsequent to that period. This I have established as my data, by which I have ascertained the numbers in each State in the year 1784, and having apportioned the whole debt among the several States, according to the enumeration, I find the following to be the result: That the State of Massachusetts, instead of being a creditor of $1,248,801, she would have been a creditor for only $863,267; that the State of Connecticut, instead of being a creditor State of $619,121, she would have been a debtor State for $235,419; that the State of Rhode Island, instead of being a creditor State for $299,611, she would have been a debtor State for $13,212; that the State of New Jersey, instead of being a creditor for $49,030, she would have been a debtor State for $300,201; that the State of New York, instead of being a debtor State for $2,074,846, she would have been a creditor State for $965,921, &c. This, Mr. Chairman, would have been the situation of these States had the apportionment been made according to the numbers in each State in the year 1784. As for the accuracy of this statement I think I can with safety pledge myself; it is, however, open for any gentleman who will give himself the trouble to examine it for himself. The principles on which it has been made cannot be disputed, as it respects the State of New York; if any thing, it does not make enough in her favor, for it is evident that the emigration into that State from the neighboring States was greater for the first seven years after the close of the war than it has been for any subsequent seven years. Will, then, Mr. Chairman, any gentleman hesitate a moment to pronounce the rule of apportionment which was adopted unjust, unequal, and erroneous? Will any gentleman say, sir, that the rule of apportionment was a just one, or as just as the nature of the case would admit of, which brought the State of New York in debt upwards of two millions--two-thirds of the whole amount of the balances--when, on the principles of righteousness, on the principles of legal contract, or any other principles, but an unauthorized act of Congress, that State would have been a creditor State for nearly a million? Mr. Chairman, I admit, as the settlement has been made, and the creditor States have received their balances, that it would be improper now to take up this subject _de novo_, and endeavor to compel those States to refund what they have received more than they were entitled to; this is not expected--it is not asked; all that is asked of you is, that you render such justice to those injured States as the present situation of this transaction will admit of; this is all that is contemplated in the bill now before us. Sir, as to the present situation of the State of New York with respect to this subject, she has not acknowledged the justice of this claim, as was stated by some gentlemen when this question was under consideration the other day; she has uniformly denied it. It is true she did comply with the act of Congress passed in February, 1799, and has expended and been credited on the books of your Treasury for $223,810 under that act; she did this, not from a conviction of the justice of the claim, but from motives which have always actuated her conduct, as well during the Revolutionary war as since, to do every thing in her power for the general welfare of the nation, whenever its exigencies required it, and also from an expectation that the other States called debtor States would do the same, and thereby get rid of an evil which she considers as having a tendency to alienate the good will and cordial affection so necessary to be cherished between these States--a cause, sir, which has and will, while it is suffered to exist, occasion perpetual irritation and disquiet, as well to the creditor as to the debtor States, and which may at some future period produce consequences more fatal. I say, sir, these were her motives in agreeing to that measure; and did she not evince a magnanimous spirit by doing it? a willingness to suffer an additional injury herself, rather than not remove a cause which might put in jeopardy the peace and harmony of these United States? But, Mr. Chairman, as it can answer no useful purpose to have the remainder of the money expended in the manner directed by the act--and this I am warranted in stating to the committee, not only as my own opinion, but as the opinion of the gentleman who was employed under Government as an agent or commissioner to superintend the expenditure already made--as no other State has evinced a disposition to extinguish these balances by paying any part of them, or by complying with any of the terms heretofore offered by Congress; and as it must be admitted on all hands that Congress have no power to effect it by eviction, I ask gentlemen if it would be just or reasonable that the State of New York, who has been injured more in the settlement than any other State in the Union; who has already paid upwards of $220,000 towards these balances, and who is the only State that has, or in all probability ever will, pay a cent towards them--I say, I ask gentlemen of the committee whether it would be just that that State should now be driven to one of two alternatives; either to draw near a million of dollars from her citizens and expend it where it will answer no useful purpose to the State nor to the nation, or to withhold any further appropriations, and thereby incur the imputation of having violated her faith? I call upon gentlemen seriously to consider whether it would not be prodigiously unjust to hold that State in this predicament; whether it would not be adding injury to injustice to do it? Mr. Chairman, I do flatter myself that the representatives of this nation, convened here to legislate on fair and equitable principles, will not suffer a new wound to be inflicted on that State, but that they will unite with one accord in passing the bill now before us, and thereby not only heal the one already made on that, as well as several of her sister States, but remove a rock which may endanger our Federal ship. The bill was supported by Messrs. RANDOLPH, VAN RENSSELAER, HILL, VAN NESS, GREGG, BAYARD, SMILIE, MACON, S. SMITH, CLAIBORNE, and HOLLAND--and opposed by Messrs. ELMER, BACON, EUSTIS, HASTINGS, and BUTLER. The question was then taken on the committee rising, and reporting the bill without amendment, and carried--yeas 47, nays 33. A motion was then made that the bill be engrossed for a third reading on Tuesday, and carried--yeas 47, nays 35. A motion was then made by Mr. LEIB to recommit the report of the select committee on which the above bill was founded, in order to correct an erroneous statement in relation to Pennsylvania. MONDAY, March 15. _French Spoliations._ Mr. GRISWOLD said, that he hoped the resolution which he had laid on the table for indemnifying for French spoliations would be first taken up. It was important, before a decision was made on the repeal of the internal taxes, that the extent of indemnities made by Government should be known. He therefore moved a postponement of the bill on internal taxes till to-morrow, that, in the mean time, his motion might be acted upon. He concluded by desiring the yeas and nays. The motion of Mr. GRISWOLD is as follows: "_Resolved_, That it is proper to make provision by law towards indemnifying the merchants of the United States for losses sustained by them from French spoliations, the claims for which losses have been renounced by the final ratification of the Convention with France, as published by proclamation of the President of the United States." Mr. LOWNDES observed, that it was nearly two months since the committee was raised, to whom had been committed the petitions of merchants praying indemnities; notwithstanding this length of time, the committee had not yet met. He hoped this resolution would induce the committee to meet. Mr. S. SMITH said, that he had presented the first petition on the subject of French spoliations, and that it had been immediately referred to a select committee, who, though they had made progress in the business committed to them, had not considered it fair to decide until all the petitions expected on the subject had been received. One indeed had been presented only this morning. Mr. S. asked if this mode was not perfectly just and fair? For himself, on this subject, he was precluded from voting, as he was deeply interested in the decision of the House. He mentioned this circumstance that the reason might be understood why particular gentlemen from different parts of the Union did not vote on this question in its several stages. Mr. LOWNDES said he did not consider the right of deciding the principle delegated to the select committee. That must be decided in the House. It was the duty of the committee barely to make arrangements to protect the House from imposition on the score of facts. If it shall be determined by the Government, that it is improper to make compensation--though he thought such a decision scarcely possible--the select committee may be discharged. If, on the other hand, it is thought proper to compensate, the committee may go into the investigation of details. Mr. MITCHILL felt it an obligation, that the case of those whom he had the honor to represent, and that of the other merchants in the United States, should be taken up and receive from this House the most deliberate and serious consideration. He had before submitted to the House his ideas on the proper course to be pursued, which it was not necessary for him to repeat. He would, however, observe, that the resolution now made was so broad as entirely to defeat its object. The first reference of this business was to a select committee instructed to examine all the papers and documents in relation to it, with an instruction to report their opinion to the House; on receiving which the House might be able to come to a decision. On the other hand, the present proposition goes to commit the House on the whole extent of the subject without any examination whatever. Mr. M. said, he would suggest a few reasons, which satisfied his mind that a decision should not be too rapidly pressed. The vessels taken by the French admitted of various classifications. One class consisted of those that were captured before the dissolution of our treaty with France; another class, of those which were captured after that event; another class, of those that were captured by picaroons without commissions; and another class, where captures were made on account of contraband goods. All these classes involved distinct considerations; and when the subject was presented to the House in a form so complicated, was it proper precipitately to decide a principle that might bind the Government to make indemnity for all cases whatever? Mr. M. said he had no doubt but that such property of the citizens of the United States as came fairly under the character of spoliated property, would be considered as a fit subject of indemnity. He was one of those who thought that in such cases payment ought to be made. He considered the merchants as a very important class of citizens, and that their interests ought to be protected. This he thought the more necessary from the consideration of the bill on the table, which, when passed, will render the Government very dependent on mercantile credit. Mr. M. was of opinion that the best way of accomplishing the object of the merchants was not to precipitate the subject. On the other hand, he was of opinion that the best chance of success would arise from an examination of the various classes of spoliations, from separating them from each other, thereby enabling the House to act understandingly upon them. The resolution of the gentleman from Connecticut was so vague as not to be susceptible of any distinct meaning. He hoped, therefore, the subject would be suffered to undergo a full and deliberate investigation in the select committee, which he, as a member of that committee, assured the House was progressing as fast as a sense of justice and a regard to our merchants require. Mr. DANA.--The object of the present motion is to take up the resolution of my colleague, and to take order upon it--not to decide definitely upon it. This being the true question, I hope the gentleman from New York will not think it improper in me to say that many of his remarks do not apply to it. As the question is not whether we shall immediately decide the point, but only place it in a train for decision, it must be discussed either in a Committee of the Whole, or in a select committee; and we ask the House now to decide which, that it may be progressing towards a final decision. The resolution states a general principle. If it is the fixed determination of the majority, without an inquiry, not to grant any relief whatever, there is an end of the business. But if you agree to grant any relief, the resolution ought to be adopted. The principle is then established of indemnifying; after which you may discriminate. The principle on which the resolution is founded is not that Government has declined to insist upon the claims of its citizens against the French; but that it has undertaken to abandon their claims, so that no citizen can now come forward with his claim either against the French Government or any citizen of France. For this is the construction of the treaty as finally ratified by the Government. It is a complete surrender and renunciation of all demands. Among the first claims of our citizens are some of private right, which were it not for the treaty, could be recovered in the courts of France, but which the treaty bars. This constitutes a class of claims which the Government cannot refuse to indemnify. There are other descriptions of claims which might require discrimination; in some of which the degree of compensation should be varied, and others in which there should be no compensation whatever. I think, therefore, it is proper for the Government to say the business shall be attended to; at some future time an inquiry may be made into the nature of the various claims. This is all we ask. Mr. GRISWOLD said that the gentleman from New York had misapprehended the order of proceeding in that House. He supposes the present resolution so vaguely worded as to be improper to be passed. But, if taken up, that very gentleman may offer any amendment he pleases. I do, however, apprehend that it is so worded as to bring the subject fairly before the House. It is worded even with caution. Its sole object is to bring the principle of indemnity before the House, unfettered, that its decision might not be embarrassed by any details; supposing there would be an indisposition in the House to pledge the nation to an unlimited extent, the words used are, "towards indemnifying." Gentlemen, therefore, who are disposed to do any thing, can feel no objection to a resolution so qualified. Other parts of the resolution are worded with equal caution, so as to extend only to cases where losses are renounced by treaty. Are gentlemen unwilling to indemnify for such losses? This is a principle proper for decision in Committee of the Whole. Why take it to a select committee? It involves no details; it requires the elucidation of no facts. We know the losses of our merchants, and we know the treaty has renounced them. The House is, therefore, prepared to say whether it will or will not indemnify. When the principle is decided, it may be sent to a select committee to settle the details. I hope that it will be taken up, and an early day fixed for consideration. The gentleman says the committee are progressing. It may be so. Though I observe the gentleman from South Carolina says the committee has not yet met. How progressing? Without meeting? I do not understand this new mode, though I will not say that it is not a very correct mode. The gentleman further says the committee have not progressed because they wished to have first all the petitions before them; but the principle to be settled is as much involved in one petition as in all. Mr. GREGG said he should not have risen but for the remarks of the gentleman from South Carolina, and after him those of the gentleman from Connecticut, who had stated that the committee had not met. Being a member of the committee he would inform those gentlemen that the committee had met; that they had perused a number of the papers, and had determined that it was improper to proceed until they had received documents that would show the extent of the claims. As the business now stands, we find it referred to a select committee, instructed to examine the papers, and report their opinion thereupon. This report will form the grounds of decision for the House. Now the gentleman would wrest the business from the committee, and urge the House into a decision without any of the necessary information. The attempt was unprecedented. Mr. G. said he never knew a similar instance where the select committee had not been previously discharged. Mr. LOWNDES rose to explain. He said that when he informed the House that the committee had never been called together, he had been induced to say so, from never having been himself notified, though a member of the committee. Mr. BAYARD thought the motion ought to prevail for the reason assigned by the honorable gentleman from Connecticut. He has properly remarked that we are not now called on to decide the abstract question, but only to say what course of proceeding shall be pursued. The point ought now to be decided whether the business shall be sent to a select committee, or to a Committee of the Whole. The gentleman from Pennsylvania says it is altogether unprecedented to take a subject out of the hands of a select committee. But this will not be the effect of the resolution; which will only facilitate the business before the committee, and shed additional light on the path they ought to pursue. We do not wish to interfere with the operations of the committee, but to decide a question that will greatly facilitate their proceedings, and which question ought to be settled in a Committee of the Whole. It is peculiarly and strikingly proper to postpone the question of repealing the internal taxes until a decision shall have been made on these claims. Not that we are anxious to decide upon them immediately, but because we are solicitous not to prejudge all claims to indemnity by repealing the very taxes on which the indemnity must depend. Do gentlemen mean to decide at once thus precipitately against all indemnity whatever? If they are not in favor of so deciding, surely they will not be for immediately deciding on the internal taxes. Let the gentleman from New York classify the claims as he pleases, can he tell the extent of the demands? May they not amount to five million or ten million of dollars? And if to either sum, can we with propriety dispense with the internal taxes? It appears from the report of the Secretary of the Treasury that the whole of the revenue for the year 1803 and 1804 will be wanted. If, then, these claims shall be allowed, and shall produce an increase of the public debt, the fund derived from the internal revenue will be required. It is cruel to decide at once against the claims of our merchants. If it is predetermined not to give them relief, at least allow them the consolation of a hearing. Whoever votes for now taking up the question of the repeal of the internal taxes, votes, not only against indemnifying, but also against hearing the merchants; because he votes away all means of indemnification. It is hard, peculiarly hard, that at the moment when you are about to throw the whole burdens of the Government upon the merchants, you should deny them a hearing, an impartial hearing, of their claims. Suppose there should be a combination of these men, seeing the Government act towards them with such flagrant injustice, to refuse all importations. I ask, if you do not, by such treatment, put the Government entirely into their hands? If gentlemen will agree to postpone the question of internal taxes, we will agree to postpone this question, if they are not prepared to decide upon it. The subject of the internal taxes is the least pressing of all the subjects before the House. The bill, indeed, ought not to pass until we know the appropriations that are necessary to be made for the present year. Have gentlemen shown, can they show, that with propriety these taxes can be dispensed with from any retrenchments that can be made in our expenditures? I do not know any official document on this point, except that of the Secretary of War, who, in his very correct report, says there will be a saving in his department of a little more or less than $500,000; which report I confess I do not understand. The Committee of Ways and Means say there will be a retrenchment in the War Department of a sum not exceeding $400,000; which mode of expression I do not precisely comprehend. Surely we ought to know with precision the sums that will be required for the objects of the Government before we abandon our resources. Mr. EUSTIS thought the object of indemnity to our merchants very important both in its nature and its consequences. And, first, as to its amount, it was known to be great. The consequence of these applications will be a hearing, and procedure thereon. And the amount of the claims, as well as the nature of them, ought to have great influence on the deliberations of the House. And yet we talk of deciding the abstract question, when the very facts on which we are to decide are not before us. For it will be perceived by the public prints that the claims of the merchants of the State of Massachusetts are not yet brought forward. The necessary evidence is not before the House. I appeal to the gentlemen to know how we are to act, understandingly, if the subject be taken up now. What is the abstract question? Will gentlemen say they will pay all demands before they know any thing of their nature or amount? The claims of our merchants are very serious, and merit great consideration. But the revenue, which gentlemen are so anxious to retain, to them will be but as the light dust in the balance. I presume that the losses of the merchants of Massachusetts alone are not less than five to ten millions of dollars. But to act understandingly upon them we must have evidence as well of their amount as their nature, both of which we at present want. Mr. RUTLEDGE.--I am sorry the resolution of my honorable friend from Connecticut is not acceptable to the gentleman from New York. It is not the least indelicate to that committee. On the contrary, were I a member of that committee, I should feel infinitely gratified by it. I would ask solicitously, whether it were possible that Congress would agree to this principle before the details were gone into. We are now for giving that information to the committee. The honorable gentleman says this resolution conveys no light. But I will say, that, if adopted, it will confer not only light, but comfort to our merchants. It will foster their hopes, and animate them to meet the difficulties under which they are staggering. The gentleman from Massachusetts says there is no evidence of fact. What fact? Surely he will not say there is no evidence of the French having condemned our vessels, and of their having committed vast spoliation. If this were so, how happens it that an American embassy had demanded compensation; and that, on the ulterior negotiations of the Government, the Government had said we will abandon it, that we may release ourselves from guaranteeing to France her colonial possessions. Had this not been so, France might have called upon us to guarantee her West India possessions, and to supply her with men and money. From this situation we have been kept by those negotiations which terminated in an abandonment of the just Claims of your merchants on the French Government or her citizens. And this constitutes your good bargains. If these are facts, we possess sufficient evidence not only to justify, but to compel our paying the merchants, if under the influence of common honesty. The amount is perfectly immaterial. Whatever it is we must pay it. It is true that of the millions claimed, Government may not in law or equity be compelled to pay more than a small part. But if you establish the principle that there shall be an indemnity made, you enable your committee to devise the mode of collecting evidences of and settling the validity of the claims. But the gentleman from Massachusetts says these taxes, right or wrong, must be repealed. For, he says, the public expectation has already decided the question; and that, indeed, the public officers could not now collect them. But I hope, for the honor of the Government, and of the American people, this opinion is not correct. Mr. MITCHILL begged to be indulged in making a few observations on what had fallen from the gentleman from South Carolina. I do not know that these observations will satisfy his mind, but they will at least serve to justify my own character as a Representative of a portion of the Union respectable for its mercantile opulence. I believe the subject of indemnities, in the contemplation of gentlemen, has swelled much beyond its real magnitude. _I believe that a large portion of losses were so covered by insurance that Government will not be obliged to pay for them._ I feel as sincerely for the merchants as any gentleman; yet I do not wish to swell the subject to an improper magnitude. Suppose, as the gentlemen wish, we say we will indemnify, does that pay the claims? Besides, it is not so evident, as some gentlemen assert, that our merchants have been deprived of valuable rights by the mode in which the French Convention has been ratified. Let gentlemen recollect the mass of depredations committed by Great Britain, and the engagements, under treaty, of the British Government to make reparation for them. Yet, notwithstanding this engagement, reparation has been to this day evaded, under the pretext that the claims under one article depend on the construction given to a preceding article. Now, suppose in the French Treaty there were the same provisions as in the British Treaty, would this have produced payment? No. The operations under the treaty might have gone on as long as under the British Treaty, with the like effect, and without any substantial provision being made. I state these circumstances barely to show that the renunciation in the French Treaty is not so grievous as some gentlemen imagine. It is manifest that an inattention to similar claims has been considered as less a departure from right among nations than among individuals. And, judging of the future by the past, my opinion is that a retention of the article stricken out of the French Convention, would not have benefited the claims of our merchants, or afforded them any adequate eventual compensation. In France, as on the other side of the Channel, there would have been claim raised against claim, pretext against pretext, and the boards for adjusting the several claims might have been, in this case, as in the other, dissolved. It is said by the gentleman from Delaware, that it is the object of gentlemen on his side of the House to prevent a repeal of the internal taxes. Though I admire the gentleman's candor, I believe it is needful to repeal these laws. I believe, too, the people wish them repealed. But I further believe, that if future events shall show the necessity of restoring these taxes, the good sense of the people will restore them; and if the indemnities agreed to be made shall require them, I believe they will be restored. The work of examining these claims will be the work of years. What is the consequence? Will the present repeal of the internal taxes interfere with the doing substantial justice to our merchants? Suppose these taxes are removed, are not the products of the country increasing? and are not our resources increasing with our population? The truth is, whenever your Treasury wants a fresh supply of resources, the people will submit to what their Representatives desire. Are we to legislate for succeeding ages? No. We are to suffer our successors to act for themselves; and I have no doubt either of their ability or their inclination to do justice. Mr. DANA.--If I understood the honorable member from New York, he admitted the propriety of making some indemnity; and if so, I could not understand why he dwelt so elaborately upon the minutiæ of detail, to show why we ought not to indemnify. Nor can I yet understand him, unless his object be to let the subject sleep, and to say that the longer it is delayed, the less chance of reparation. The gentleman says, property _insured_ cannot be recovered. But is that gentleman, coming as he does from the first commercial city in the Union, yet to learn that, in the case of loss, the _insurer_ stands precisely in the place of the _insured_? Is he so ignorant of this fact as not to know that the underwriter, in such circumstances, becomes entitled to the same indemnity with him who is underwritten? With regard to the analogy attempted between the British Treaty and the French Convention, it is totally incorrect. For, in the British Treaty, we had insisted upon the claims of our merchants to reparation by Britain, or her subjects; whereas, in the French Convention, we had renounced all claim. Nor were the remarks of the honorable member more fortunate respecting the operations under the British Treaty; for he must know that our merchants have, in many cases, received compensation under it. One concession has been made which I did not expect would be avowed so early, either by the gentleman from Massachusetts or the gentleman from New York; a confession that is founded on the principle that the House, before examining the important details which ought to regulate their decision, are so placed by the head of the Executive ministry, that certain taxes, recommended to be abrogated, must be repealed. You must repeal them. The public clamor is excited, and you must obey it. I did not suppose it would so soon have been avowed that we are under the absolute rule of Executive influence, and that, to obey it, we are compelled to perjure our understandings. Mr. BAYARD.--The honorable gentleman from Massachusetts has thanked me for the candor of my avowal that I am opposed to the repeal of these taxes. But I do not wish to be thanked for more than I really said. It is true, that I do not think this the proper time to repeal all of those taxes, because I do not know that Government may not want them. The gentleman from Massachusetts has broached a new species of ethics. He says, if the amount of claims shall be small, we may pay, but if large we cannot. But I will tell that gentleman I have never acknowledged such a principle of morality. I believe if the merchants have a just demand for one dollar, we must pay it; and if they have a just demand for one hundred millions, we must pay that too. Nor can I too forcibly express my astonishment at an opposite principle avowed by this House. The gentleman says you want evidence, and therefore ought not to act. But can you examine each distinct case? If the subject goes to a select committee, and they shall be allowed years to decide, still they will have to establish some principle; for instance, that a certain description of vessels was captured unjustly by the French; that the injured merchants had a moral claim on the French Government for reparation; that the United States had bartered away their rights, and that Government, in consequence, is bound to indemnify. If the House decide that the Government is bound to relieve in one case, are they not bound to afford relief in all similar cases? Will you not, then, be obliged to make a general provision that all claims, so circumstanced, shall be allowed? Here is a great mass of claims; some made now, and some not likely to be made for years. What more, then, can you do, than decide the principle which shall be applied to them? My opinion as to indemnity is, that whoever had a valid claim against the French Government, which the United States extinguished, has a demand against the United States, which she must satisfy. Put the case to its consequence: Will gentlemen tell me whether, according to any principle of morality, where you have taken from your citizens all chance of recovery, you are not bound to indemnify for that of which you have deprived them? Where the French Government was not bound to pay before the convention, you are not now bound to pay. So, in the case of war, you are not bound. But where the claim on the French Government was perfect, and you destroyed that claim, your obligation to pay cannot be evaded. I wish to know if the establishment of this principle requires facts? With respect to the circumstances of particular cases, this House cannot act. On those numerous grades of credibility that will be attached to the various claims that shall be made, you cannot decide. To effect this you must establish some competent tribunal. You can establish the principle; but the details could not be settled by Congress, even if their attention were exclusively directed to that subject, in three years. Having decided the principle, it will be proper to leave the application of it to your courts of law. Mr. BACON hoped that a great deal of time would not be spent in exploring the secret motives of individual members. He supposed they should all stand or fall on their own consciences. He hoped, therefore, they should have the question. Mr. S. SMITH.--I am against the proposition of the gentleman from Connecticut, because to act now upon it will be in direct opposition to the uniform order of the House. If our attention is thus to be withdrawn from every important object before us, I do not know how we are possibly to progress with the public business. I know of no case, where a particular subject has been referred to a select committee, and it has afterward been taken up in the House, while it remained with the committee. I should have understood the motion, if it had been to discharge the select committee, and to refer the subject to a Committee of the Whole. As gentlemen, however, have taken so wide a range in the field of debate, I hope their course will produce a saving of time, and that we shall not have their speeches over again on repealing the internal taxes. It is not my purpose, at this time, to enter into a discussion of the claims of our merchants, because I think this is not the proper occasion. But I will tell gentlemen, that if they were disposed to destroy those claims, they could not have pursued a plan more effectually calculated to do it. Had such been my intention, I would have offered a resolution so broad and vague as to alarm the whole community as to the amount of indemnity. I would have endeavored to throw the censure attached to their losses on the present Administration. I would have opposed their claims to the wish of the nation to repeal the internal taxes. All these steps I would have taken to frustrate any indemnity; and they are just the steps taken by gentlemen who profess so strong a regard for the merchants. Let me tell those gentlemen until they shall pursue a far different plan, we must doubt whether they are in earnest to pay the merchants for their losses. If the public business is to be thus perpetually procrastinated, I hope the gentlemen with whom I act will be firm enough, after rejecting this motion, to pursue the other business even to a late hour. The yeas and nays were then taken on Mr. GRISWOLD'S motion, to postpone taking up the bill on internal taxes till to-morrow, in order to take up his resolution on French spoliations; and decided in the negative--yeas 33, nays 54. TUESDAY, March 16. _State Balances._ The bill for extinguishing State balances was read a third time, when Mr. DAVIS moved its postponement to the first Monday in November. This motion was supported by Messrs. DAVIS, BACON, ELMER, and GODDARD, who declared themselves adverse to the passage of the bill; and opposed by Messrs. BAYARD, T. MORRIS, RANDOLPH, and NICHOLAS, who declared themselves in favor of the bill. Mr. GRISWOLD delivered his sentiments against the postponement, declaring, however, his determination to vote against the passage of the bill. The question of postponement was taken by yeas and nays, and carried--yeas 48, nays 42. WEDNESDAY, March 24. A new member, to wit, WALTER BOWIE, from the State of Maryland, returned to serve in this House as a member for the said State, in the room of Richard Sprigg, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House. MONDAY, March 29. An engrossed bill, making a partial appropriation for the support of Government, during the year 1802, was read the third time and passed. Previous to its passage, conversation took place respecting an alleged looseness of appropriation. This objection was made by Mr. GRISWOLD, and supported by Mr. DANA, who were of opinion that the sum in the bill should be more specifically appropriated. The objection was repelled by Messrs. MILLEDGE, GILES, ELMENDORPH, RANDOLPH, and ALSTON, who contended that the objection did not apply, and that no inconvenience could arise from a partial appropriation made in the bill and contemplated for a definitive object. A motion made to recommit the bill was lost; when the bill passed--yeas 45. TUESDAY, March 30. _Funeral Expenses of Members._ On a motion made and seconded that the House do come to the following resolution: _Resolved_, That, in case of the death of a member of the House of Representatives at the seat of Government, while Congress is in session, the expenses accruing, in conformity to an order of the House, made to testify their respect for the deceased member, shall be paid out of the contingent funds of the House, and not out of his wages for travelling home, as is now allowed by law: _Ordered_, That the said motion be referred to Mr. DAVIS, Mr. LEWIS R. MORRIS, and Mr. NICHOLSON, to consider and report thereon to the House. WEDNESDAY, March 31. _Funeral Expenses of Members._ Mr. DAVIS, from the committee to whom was yesterday referred a motion respecting "members of this House dying at the seat of Government during a session, of Congress," made a report thereon; which was read and considered: Whereupon, _Resolved_, That the expenses accruing by order of the House, in attending the funeral of NARSWORTHY HUNTER, a member from the Mississippi Territory, be paid out of the contingent funds of the House. _Resolved_, That the legal representatives of a member of this House, who shall die at the seat of Government during the session, shall be entitled to receive the same allowance for his itinerant expenses, as the member would have been entitled to, had he returned to his place of abode. _Ohio State Government._ The House went again into Committee of the Whole on the report of a select committee respecting the admission of the North-western Territory as a State into the Union. The second resolution being under consideration, Mr. FEARING referred to the provisions of the ordinance empowering Congress to divide the Territory, from which he inferred that Congress had not the right to divide the Territory so as to form one part of it into a State, while the remaining section was not made a State, without the consent of the Territory; he conceived that Congress must, in such event, form this section also into a State. He, therefore, was of opinion that Congress must consult the people of the Territory before they shall divide the Territory. As to the expediency of the resolution, he thought it very expedient to make the division therein marked out. The effect of it would be that the whole of Lake Erie would be thrown out of the State to be formed, and the inconvenience to the section of the Territory not incorporated in the new State would be very great, if it should be attached to the Indiana Territory, from its great distance, which he understood was contemplated. Mr. GILES said that the committee who reported these resolutions, so far from entertaining a disposition to change the ordinance, had strictly observed the conditions therein prescribed. [Mr. G. here quoted the ordinance.] It appeared therefrom that Congress was under an obligation, after laying off one State, to form the remainder into a State. But when? Hereafter, whenever they shall think it expedient to do so. Mr. BAYARD agreed that there was no obligation imposed upon Congress to decide definitively the boundary of a State. If the ultimate right of Congress, after the formation of a new State, to alter the boundary be doubted, they have a right to remove all doubts by so declaring at this time. It is certain that at present great inconvenience would arise from drawing the boundary as fixed in the resolution. The population of the Territory does not amount to that which is sufficient to give it admission into the Union. He had, however, no disposition to oppose its admission, notwithstanding this circumstance. The population in the Eastern State does not exceed forty-five thousand. We are now about to pare off five or six thousand inhabitants, which will bring it down to thirty-nine thousand. A population of forty-five thousand is quite small enough for an independent State. It is a smaller population than exists in any of the present States in the Union. From this consideration, it might have been expected that Congress would take no step whose effect would be a diminution of that population. The division, as made in the resolution, is manifestly unjust, as far as it relates to the people north of the dividing line. By it they are about to be severed from their connection with the other portion of the Territory. Mr. B. wished to know to whom they are to be attached? If attached to the Indiana Territory, the inhabitants, to arrive at the seat of Government, will be obliged to go across the new State, a distance of two or three hundred miles. Besides, after having advanced them to the second grade of territorial government, you will consign them back again to the first, and thereby give them a system of government extremely odious, and which we ought to get rid of as soon as possible. Thus, after having held out to them the flattering prospect of being elevated to the high rank of a State, you degrade them, contrary to their expectations, to the humblest condition in the Union. Mr. B., therefore, thought it would be most just and politic to include this population of five or six thousand in the bounds of the new State, subject to the reserved right of Congress to alter the boundary hereafter. Mr. GILES said he was not tenacious of his opinions; but it was necessary to justify the contents of the report by stating some considerations that might not be generally known to the members of the House. Mr. G. said he supposed the section of the Territory, not embraced in the new State, would be attached to the Indiana Territory; nor would any great hardship result from this disposition; and such as did result would arise from their local situation and not from any circumstances over which the National Legislature had a controlling power. He believed that people, to reach the seat of Government, had as far to go now as they will then have. His object was to reserve in future to Congress the right of determining the boundary of the States in the Territory. If this section should once be admitted, he believed it would be very difficult, however proper, to detach it from the State to which it had become attached. The report contemplates the forming a constitution. Should the people on the northwardly side of the line be admitted as a part of the State, they will participate in the formation of the constitution--a constitution which will not be ultimately for themselves, but after a short time exclusively for others. This participation would be unjust. The question then is, whether you will suffer those to form a constitution who are not to be permanently affected by it; and whether, if you once constitute a State, you will be able hereafter to alter its boundaries? For if this section be now admitted, gentlemen, by looking at the map, will see that the boundary now fixed cannot be permanent. As to the remarks made by the gentleman from Delaware, Mr. G. said he was extremely glad that gentleman was for giving to the Territory the right of a State. If, however, he had attended to the report, he would have found that his calculation of numbers was incorrect. The population of five thousand had been deducted by the committee, and after that deduction forty-five thousand remained. Though the numbers in the Territory proposed to be formed into a State amounted, a year ago, to no more than forty thousand, yet it might be stated upon strong ground, that, before the new government can get into operation, there will be a sufficient population to demand admission as a matter of right. By attaching the inhabitants on the north of the line to the Indiana Territory, they will remain in the same grade of government they now are, and not be degraded, as stated by the gentleman from Delaware, to a lower state. This disposition appeared to Mr. G. the best that could be made. But if, when gentlemen came to the details of the bill, it should be thought best to introduce into the new State the population north of the line, he said he might have no objection. Mr. FEARING stated the great inconveniences that would be felt by the inhabitants north of the line, if attached to the Indiana Territory. He considered the remarks of the gentleman from Virginia, (Mr. GILES,) respecting the participation of this description of citizens in forming a constitution for others, as entitled to little weight. Such a measure was by no means uncommon. It had been done in the case of Kentucky, and other States. Mr. F. conceived that the people of the Territory had all equal rights under the ordinance; they had been virtually promised that they should not be attached to any other Western Territory, and Congress had only reserved to themselves the right of admitting them into the Union as States. More they could not do, without their consent. Mr. BAYARD moved to strike out of the resolution the words that fix the boundary, for the purpose of introducing words that should prescribe that the new State be circumscribed by the original boundaries of the Eastern State, referring to Congress the right of making one or more States in said State at any future time. Mr. GILES said that the State, as formed in the report, was one of the most compact and convenient in the Union. The amendment would materially change its character. Besides, it would in fact impair the right of Congress to accommodate the boundaries to future circumstances. It was well known, and sensibly felt, that there were many inconvenient boundaries to several of the States now in the Union; yet so great was the difficulty attending their alteration, that they could not be changed. Mr. BAYARD was not so sensible of the difficulty of altering the boundaries as the gentleman from Virginia, who had stated that Congress would not have power to alter them when once fixed. This difficulty might exist as to the States now in the Union, because Congress had not the constitutional power to alter them without the consent of the adjacent States. But if this power be referred to Congress, which will be a disinterested tribunal, there will be no difficulty in varying the boundaries as circumstances shall dictate. Mr. B. asked, if, while gentlemen are attending to the interests and wishes of one part of the people, they are disposed to disregard the interests and wishes of another part? If they were not, they ought to admit the section, proposed by the resolution to be cut off, to a participation in State rights. Mr. BACON objected to the amendment. He said that Congress were vested by the constitution with certain powers which they cannot increase, or diminish, or delegate. By the constitution likewise, the several States are vested with certain powers which they cannot increase, diminish, or divest themselves of. By the third section of the fourth article of the constitution, "new States may be admitted by the Congress into the Union." This act proposes to make this Territory a State with State powers under the constitution. How, then, can these people, once a State, divest themselves of these powers. This is a question that does not interest simply the State proposed to be formed, but every State in the Union. All are equally interested in preserving the powers vested in them by the constitution. Mr. BAYARD said he did not see any occasion for striking out the proviso. The gentleman from Massachusetts (Mr. BACON) goes on the principle that Congress has only a right to admit, without any reservation. Mr. B. said he had always believed the greater included the smaller. If you are vested with the greater power of admitting, you have certainly the minor powers included in the greater power. From the nature of the ordinance, it constitutes the fundamental principle on which the States are admitted--they are not admitted under the constitution. They are to be admitted exclusively under the provision of the ordinance. You may, therefore, say that you will not now exercise the whole power committed to you, but reserve the right of exercising it hereafter. Mr. SMILIE did not consider the principle laid down by the gentleman from Delaware as constitutional. We must be governed by the constitution. If the Territory be admitted as a State into the Union, when admitted it must be bound down by the constitution, which says the boundaries of States shall not be altered but with the express permission of the State. Mr. GILES--The gentleman from Connecticut, (Mr. GRISWOLD,) affects lately to have discovered a great deal of disguise in the proceedings of this House. What disguise? What were the committee to do? This country is placed in a certain peculiar situation. We have waters running to the East--then to the West; and the committee thought it was desirable to connect these by good roads. With the committee, State principles or interests had no influence--they were governed entirely by general principles and the common interest. The gentleman has also insinuated that the Secretary of the Treasury holds lands that will be benefited by these roads. It may be so. Mr. G. had not inquired; but he supposed he did not hold all the lands. Congress may lay out these roads as they please. He could foresee how Congress would lay them out, and it is a million to one that they will not touch his lands. The United States are about making a new contract. These propositions are made as additional securities for the national property. The Secretary of the Treasury having estimated the annual product of these lands at four hundred thousand dollars, Mr. G. said, as chairman of the committee, he had applied to him to know his opinion of the manner in which this sum could be best secured, and he gave his opinion that this provision would be most likely to effect that object. This is all the mystery and disguise attending the resolution. Mr. SMILIE said when gentlemen charge particular States with injustice, they ought to be prepared to prove what they advance. If there had been any co-operation between the delegations of Virginia and Pennsylvania on this occasion, he had never heard of it. The fact was, that no peculiar good could result to Pennsylvania from this measure. The great object was to keep up that intercourse which will attach the people of the Territory to you. When the Territory shall become a State, she will have a right to tax your lands. This benefit, together with the salt-springs, as I understand, is proposed as a substitution far the relinquishment of those rights. Mr. FEARING said he considered a part of the rights of the Territory given up by this resolution; and though the Territory would be highly benefited by the projected roads, and the cession of the salt-springs, yet he conceived they would be much more benefited by laying out the roads within the Territory. Mr. GRISWOLD said he was glad the honorable gentleman from Virginia had assured the House there was no disguise in this business. If the object be to make an advantageous contract with the Territory to secure our Western lands, let us offer them five per cent. of the proceeds of those lands, to be paid into their treasury. If they shall be disposed to make roads through Pennsylvania and Virginia, he should have no objection. He was as sensible as the gentleman from Virginia, that whatever improves a part of the Union improves the whole; though this was undoubtedly the case, he was not of opinion that a sum of money should be taken from the public treasury, and specially applied to local purposes. Under this resolution, according to the calculation of the Secretary of the Treasury, forty thousand dollars was the smallest sum that would be annually applied to the laying out of those roads. Mr. G. said he thought the sum too large to be withdrawn from the national treasury, and directed to local objects. The allusion of the gentlemen to light-houses raised on the Connecticut shore does not apply. There was but one light-house in Connecticut, ordered to be built by this House, for which the _enormous_ sum of twenty-five hundred dollars had been appropriated. Yet this solitary measure had been rejected by the Senate. This is the great boon given to Connecticut! For these reasons Mr. G. hoped the article would be stricken out, and that, if it was necessary to make terms with the new State, they might receive five per cent. on the receipts of the land, to be paid into their own treasury, disposable by themselves as they saw fit. Messrs. R. WILLIAMS, JACKSON, and HOLLAND, said a few words in favor of retaining the article; when the question was taken on striking it out, and lost--yeas 17. Mr. FEARING, wishing that half the proceeds of the Western lands should be laid out on roads within the Territory, made a motion to that effect; lost--yeas 25. The report of the select committee, without further amendment, was then agreed to, and a bill ordered in conformity thereto. WEDNESDAY, April 7. An engrossed bill for the relief of Thomas K. Jones was read the third time, and passed. The Speaker laid before the House a letter from the Secretary of State, accompanying his report on the memorial of Fulwar Skipwith, referred to him by order of the House on the nineteenth of January last; which were read, and ordered to be committed to a Committee of the whole House on Friday next. Mr. JOHN C. SMITH, from the Committee of Claims, to whom was recommitted, on the fifteenth ultimo, their report on the memorial of Paul Coulon, a French citizen, made a supplementary report thereon; which was read, and ordered to be referred to a Committee of the whole House to-day. On motion it was _Resolved_, That a committee be appointed to examine and report the state of the office of the Clerk of this House. _Ordered_, That Mr. CLAY, Mr. HUGER, and Mr. SOUTHARD, be appointed a committee pursuant to the said resolution. Mr. MITCHILL, from the committee to whom were referred, on the fifth instant, the amendments proposed by the Senate to the bill, entitled "An act for revising and amending the acts concerning naturalization," reported that the committee had had the said amendments under consideration, and directed him to report to the House their agreement to the same. _North-western Territory._ The House resolved itself into a Committee of the Whole on the bill to enable the people of the eastern division of the Territory north-west of the river Ohio to form a constitution and State Government, and for the admission of such State into the Union, on an equal footing with the original States, and for other purposes. Mr. FEARING moved to amend the bill so as to embrace the population of the eastern division as bounded by the articles of the ordinance, the effect of which motion would be to include about thirty thousand inhabitants of that division, that are excluded by the provisions of the bill, and respecting whom it is provided in the bill, that they may hereafter be added by Congress to the new State, or disposed of otherwise, as provided by the fifth article of the compact. This motion gave rise to a debate of considerable length, in which Messrs. FEARING, BAYARD, GRISWOLD, GODDARD, HENDERSON, and RANDOLPH, supported; and Messrs. GILES, BACON, and R. WILLIAMS, opposed the amendment. Those who supported the amendment contended that the exclusion of that portion of territory occupied by about three thousand inhabitants was both unconstitutional and inexpedient. On the ground of constitutionality, they contended, that under the articles of the compact, which were to be considered as the constitution of the territory, Congress had only the right of forming the eastern division into one, two, or three States; and that under this power, no right existed to form one part of the division into a State, and leave the remaining section in a Territorial condition; that the rights of the whole of the inhabitants of the eastern division were equal, and if one part was, so also must the remaining part be, admitted to the privilege of a State. On the ground of expediency, it was contended that the situation of the excluded inhabitants would be peculiarly hard; that, if attached to the Indiana Territory, they would be placed two or three hundred miles from it; that they would be furthermore degraded from the second to the first branch of Territorial government, and that they would be deprived, by the reduction of their numbers, from the prospect of being admitted for a great number of years, to State rights. On the contrary, the opponents of the amendment contended that the provisions of the bill were both constitutional and expedient; that under the compact the right was given to Congress of admitting the eastern division into the Union, in the form of one, two, or three States; that this right involved a discretion to admit a part of that division at one time, and the remaining part at a subsequent period; that if the whole division were once admitted into the Union, Congress would be prohibited from dividing hereafter, when it was acknowledged such division would be expedient, the said division into two or more States, without the consent of the State now formed. That, as to considerations of expediency, the hardships likely to be felt by the excluded inhabitants were such as arose, not from the provisions of the bill, but from their local situation; and that it was not true that they would be degraded by annexation to the Indiana Territory; to a lower grade of Territorial character than they at present enjoyed--the grade being the same. Mr. RANDOLPH supported the amendment on peculiar ground, declaring that if the amendment should not prevail, he would still vote for the admission. He declared himself in favor of the amendment, principally from a desire to avoid the introduction of too many small States into the Union. The question was then taken on Mr. FEARING'S amendment, and lost--yeas 34, nays 38. Mr. FEARING moved so to amend the bill as to leave to the new State the right of naming itself. Agreed to. After some discussion of the details of the bill, the committee rose and repeated the bill, with amendments. _Ordered_, That the said bill, with the amendments, do lie on the table. THURSDAY, April 8. Mr. JOHN TALIAFERRO, Jun., from the committee to whom was referred, on the fifth instant, the petition of sundry citizens of Georgetown, in the District of Columbia, with instruction to report thereon by bill or otherwise, presented a bill to incorporate the Directors of the Columbian Library Company; which was read twice, and committed to a Committee of the whole House on Monday next. Mr. DENNIS, from the committee to whom was referred, on the fifth of February last, a motion, in the form of two resolutions of the House, "respecting the adjustment of the existing disputes between the Commissioners of the City of Washington, and other persons who may conceive themselves injured by the several alterations made in the plan of the said city; also, relative to a plan of the said City of Washington, conformably, as nearly as may be, to the original design thereof, with certain exceptions," made a report thereon; which was read, and ordered to be referred to a Committee of the whole House on Monday next. Mr. JOHN TALIAFERRO, Jun., from the committee appointed, presented a bill to incorporate the inhabitants of the city of Washington, in the District of Columbia; which was read twice and committed to a Committee of the whole House on Monday next. The SPEAKER laid before the House a letter from the Secretary of the Treasury, enclosing a statement prepared by the Register, of the application of the appropriations made by Congress for clerk-hire, in the several offices of the Treasury Department, specifying the names of the persons, and the salaries allowed to each, for the three last years, in pursuance of a resolution of this House, of the twenty-fifth ultimo; which were read, and ordered to lie on the table. The SPEAKER laid before the House a letter from the Secretary of the Treasury, accompanying two statements, marked A and B, relative to expenses incurred by the United States in the exercise of jurisdiction over the territory of Columbia, since the assumption of jurisdiction by Congress, prepared in pursuance of a resolution of this House of the first instant; which were read, and ordered to be referred to the committee appointed, on the eighth of December last, to inquire whether any, and, if any, what alterations or amendments may be necessary in the existing government and laws of the District of Columbia. The House proceeded to consider the report of the select committee to whom were referred, on the fifth instant, the amendments of the Senate to the bill, entitled "An act for revising and amending the acts concerning naturalization," which lay on the table: Whereupon, _Resolved_, That this House doth agree to the said amendments, with amendments, to the section proposed to be substituted by the Senate in lieu of the first and second sections of the original bill. Mr. NICHOLSON, from the committee appointed on the second instant, presented a bill to abolish the Board of Commissioners in the city of Washington, and to make provision for the repayment of loans made by the State of Maryland for the use of the city; which was read twice and committed to a Committee of the whole House on Monday next. Mr. NICHOLSON, from the committee appointed, presented a bill to provide more effectually for the due application of public money, and for the accountability of persons intrusted therewith; which was read twice and committed to a Committee of the whole House on Monday next. The House resolved itself into a Committee of the Whole on the supplementary report of the Committee on Claims, of the seventh instant, to whom was recommitted, on the fifteenth ultimo, their report on the memorial of Paul Coulon, a French citizen; and after some time spent therein, the committee rose and reported a resolution, which was twice read, and agreed to by the House, as follows: _Resolved_, That there be paid to Paul Coulon, as agent for the captors of the ship Betty Cathcart and brig Aaron, prizes to the French privateer La Bellone, out of any moneys in the Treasury, not otherwise appropriated, the sum of six thousand two hundred and forty-one dollars and forty-four cents, being the amount retained by the Treasury Department, from the sales of the ship Betty Cathcart, and for duties on the cargo of the brig Aaron. _Ordered_, That a bill or bills be brought in, pursuant to the said resolution; and that the Committee on Claims do prepare and bring in the same. _North-western Territory._ The House proceeded to consider the amendments reported yesterday from the Committee of the Whole to the bill to enable the people of the Eastern division of the Territory north-west of the river Ohio to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes, which lay on the table; and the same being severally twice read, were, on the question put thereupon, agreed to by the House. A motion was then made, further to amend the said bill, at the Clerk's table, by striking out, in the sixth, seventh, eighth, ninth, and tenth lines of the second section thereof, the following words: "and on the north, by an east and west line, drawn through the southerly extreme of Lake Michigan, running east, after intersecting the due north line aforesaid, from the mouth of the Great Miami, until it shall intersect Lake Erie or"--and inserting in lieu thereof, the word "to." It passed in the negative--yeas 27, nays 44, as follows: YEAS.--James A. Bayard, Thomas Boude, Manasseh Cutler, John Davenport, Thomas T. Davis, John Dennis, Ebenezer Elmer, Abiel Foster, Calvin Goddard, Roger Griswold, William Helms, Joseph Hemphill, Archibald Henderson, William H. Hill, Benjamin Huger, Thomas Lowndes, Lewis R. Morris, James Mott, Thomas Plater, Nathan Read, John Cotton Smith, John Stanley, John Stratton, Samuel Tenney, Thomas Tillinghast, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, Phanuel Bishop, Richard Brent, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, John Dawson, William Dickson, Lucas Elmendorph, William Eustis, John Fowler, William B. Giles, John A. Hanna, Daniel Heister, William Hoge, James Holland, David Holmes, George Jackson, Charles Johnson, Samuel L. Mitchill, Thomas Moore, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Smilie, Israel Smith, John Smith, (of Virginia,) Samuel Smith, Richard Stanford, Joseph Stanton, jr., John Taliaferro, jr., Philip R. Thompson, Abram Trigg, John Trigg, Isaac Van Horne, and Robert Williams. Mr. JOHN C. SMITH moved further to amend the bill, by striking out the third section thereof, in the words following, to wit: _And be it further enacted_, That all male citizens of the United States, who shall have arrived at full age, and resided within the said Territory at least one year previous to the day of election, and shall have paid a territorial or county tax, and all persons having, in other respects, the legal qualifications to vote for Representatives in the General Assembly of the Territory, be, and they are hereby, authorized to choose Representatives to form a Convention, who shall be apportioned amongst the several counties within the Eastern division aforesaid, in a ratio of one Representative to every ---- inhabitants of each county, according to the enumeration taken under the authority of the United States, as near as may be, that is to say: from the county of Trumbull, ---- Representatives; from the county of Jefferson, ---- Representatives, ---- of the ---- to be elected within what is now known by the county of Belmont, taken from Jefferson and Washington Counties; from the county of Washington, ---- Representatives; from the county of Ross, ---- Representatives, ---- of the ---- to be elected in what is now known by Fairfield County, taken from Ross and Washington Counties; from the county of Adams, ---- Representatives; from the county of Hamilton, ---- Representatives, ---- of the ---- to be elected in what is now known by Clermont County, taken entirely from Hamilton County: and the elections for the Representatives aforesaid, shall take place on the second Tuesday of October next, the time fixed by a law of the Territory, entitled "An act to ascertain the number of free male inhabitants of the age of twenty-one, in the Territory of the United States north-west of the river Ohio, and to regulate the elections of Representatives for the same," for electing Representatives to the General Assembly, and shall be held and conducted in the same manner as is provided by the aforesaid act, except that the qualifications of electors shall be as herein specified. The motion to strike out was supported by Messrs. JOHN C. SMITH, GODDARD, FEARING, and HENDERSON, and opposed by Messrs. GILES, MITCHILL, R. WILLIAMS, ELMER, and HOLLAND, on the ground that the right of the United States to admit necessarily involved the power of prescribing a convention. The yeas and nays were taken, and it passed in the negative--yeas 26, nays 48, as follows: YEAS.--Thomas Boude, Manasseh Cutler, Samuel W. Dana, John Davenport, Abiel Foster, Calvin Goddard, Roger Griswold, Seth Hastings, Joseph Hemphill, Archibald Henderson, Benjamin Huger, Thomas Lowndes, Thomas Morris, Thomas Plater, Nathan Read, William Shepard, John Cotton Smith, John Stratton, Samuel Tenney, Thomas Tillinghast, George B. Upham, Killian K. Van Rensselaer, Peleg Wadsworth, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, John Archer, John Bacon, Phanuel Bishop, Richard Brent, William Butler, Samuel J. Cabell, Thomas Claiborne, John Clopton, John Condit, Thomas T. Davis, John Dawson, William Dickson, Lucas Elmendorph, Ebenezer Elmer, John Fowler, William B. Giles, Edwin Gray, John A. Hanna, Daniel Heister, William Helms, William Hoge, James Holland, David Holmes, George Jackson, Charles Johnson, Samuel L. Mitchill, Thomas Moore, James Mott, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Smilie, Israel Smith, John Smith, (of Virginia,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Isaac Van Horne, and Robert Williams. Mr. FEARING said he was of opinion that some provision ought to be made for the inhabitants excluded from the new State, and the continuance of suits from the old to the new Government; for these purposes he moved the recommitment of the bill. Lost. Mr. DANA proposed so to amend the fourth section, as that a majority of the whole number of delegates elected in the Convention, instead of a majority of those present, should first determine whether it be or be not expedient to form a constitution, &c. The yeas and nays were called, and the motion carried--yeas 38, nays 33, as follows: YEAS.--Thomas Boude, William Brent, John Condit, Manasseh Cutler, Samuel W. Dana, John Davenport, Thomas T. Davis, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Abiel Foster, John Fowler, Calvin Goddard, Edwin Gray, Roger Griswold, John A. Hanna, Joseph Hemphill, Archibald Henderson, William Hoge, Benjamin Huger, Lewis R. Morris, Thomas Morris, James Mott, Thomas Plater, Nathan Read, William Shepard, John Cotton Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Stewart, John Stratton, Samuel Tenney, Thomas Tillinghast, John Trigg, George B. Upham, Peleg Wadsworth, and Lemuel Williams. NAYS.--Willis Alston, John Archer, John Bacon, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, Richard Cutts, John Dawson, William Dickson, William B. Giles, William Helms, James Holland, David Holmes, George Jackson, Charles Johnson, Samuel L. Mitchill, Thomas Moore, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Smilie, Israel Smith, John Smith, (of Virginia,) Samuel Smith, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, Isaac Van Horne, and Robert Williams. The bill was then ordered to be engrossed for a third reading to-morrow. FRIDAY, April 9. A message from the Senate informed the House that the Senate have passed a bill, entitled "An act to amend the Judicial System of the United States;" to which they desire the concurrence of this House. [The chief alterations made from the old system consist in the holding the Supreme Court only once a year by four justices, and the establishment of six circuits, within each district of which circuit courts are to be holden twice a year, composed of one justice of the Supreme Court and the judge of the district, in which said court is held.] The bill was read twice, and referred to a select committee. _Ohio State Government._ An engrossed bill to enable the people of the Eastern division of the Territory north-west of the river Ohio to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes, was read the third time, and the blanks therein filled up: And, on the question that the same do pass, it was resolved in the affirmative--yeas 47, nays 29, as follows: YEAS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, Phanuel Bishop, Richard Brent, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Thomas T. Davis, John Dawson, William Dickson, Lucas Elmendorph, Ebenezer Elmer, William Eustis, John Fowler, William B. Giles, William Hoge, James Holland, David Holmes, George Jackson, Samuel L. Mitchill, Thomas Moore, James Mott, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Smilie, Israel Smith, John Smith, (of New York,) Josiah Smith, Samuel Smith, Richard Stanford, Joseph Stanton, jr., John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, John P. Van Ness, Isaac Van Horne, and Robert Williams. NAYS.--Thomas Boude, John Campbell, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, Abiel Foster, Calvin Goddard, Roger Griswold, William Barry Grove, Seth Hastings, Joseph Hemphill, Archibald Henderson, Benjamin Huger, Thomas Lowndes, Lewis R. Morris, Thomas Morris, Thomas Plater, Nathan Read, William Shepard, John Cotton Smith, John Stanley, John Stratton, Samuel Tenney, Thomas Tillinghast, George B. Upham, Killian K. Van Rensselaer, Lemuel Williams, and Henry Woods. MONDAY, April 12. An engrossed bill for the relief of Theodosius Fowler, was read the third time, and passed. The House went into Committee of the Whole on the bill for the relief of Paul Coulon, which was reported without amendment, and ordered to be engrossed and read the third time to-day. Mr. S. SMITH, from the committee appointed, presented a bill for the relief of Lewis Tousard; which was read twice and committed to the Committee of the Whole for to-morrow. Mr. CLAY, from the committee appointed on the seventh instant, to examine and report on the state of the office of the Clerk of this House, made a report: which was read, and ordered to lie on the table. The House resolved itself into a Committee of the Whole on the bill to provide for the establishment of certain districts, and therein to amend an act, entitled "An act to regulate the collection of duties on imports and tonnage," and for other purposes; and, after some time spent therein, the committee rose and reported several amendments thereto; which were severally twice read, and agreed to by the House. _Ordered_, That the said bill, with the amendments, be engrossed, and read the third time to-morrow. The House resolved itself into a Committee of the Whole on the report of the Secretary of State, of the seventh instant, to whom was referred, on the nineteenth of January last, the memorial of Fulwar Skipwith; and after some time spent therein, the committee rose and reported two resolutions thereupon; which were severally twice read and agreed to by the House, as follows: _Resolved_, That provision ought to be made by law, for the payment of four thousand five hundred and fifty dollars, unto Fulwar Skipwith, (which sum was advanced by him to the United States,) with an interest of ---- per centum, from the first of November, one thousand seven hundred and ninety-five. _Resolved_, That provision ought to be made by law, for compensating the said Fulwar Skipwith, for his services from the first of November, one thousand seven hundred and ninety-six, to the first of May, one thousand seven hundred and ninety-nine, at the rate of ---- dollars, per annum. _Ordered_, That a bill or bills be brought in pursuant to the said resolutions; and that Mr. DAWSON, Mr. VAN CORTLANDT, and Mr. STANTON, do prepare and bring in the same. The House then went into Committee of the Whole on the report of the committee of the twenty-second of January, on the petition of Sarah Fletcher and Jane Ingraham, referred to them on the tenth of December last, and, after some time spent therein, the committee rose and reported several resolutions thereupon; which were severally twice read, and agreed to by the House, as follows: _Resolved_, That it is expedient to grant to the widows and children, as the case may be, of the officers, seamen, and marines, who were lost at sea, on board the ship Insurgent and brigantine Pickering, lately in the service of the United States, four months' pay of their respective husbands or fathers. _Resolved_, That it is expedient to provide by law for the payment of five years' half pay to the widows and children, as the case may be, of such officers in the naval service of the United States as shall be slain in battle, or die, when in the actual line of their duty. _Resolved_, That the widows and children of those officers who were lost at sea in the ship Insurgent and brigantine Pickering, shall be entitled to this provision. _Ordered_, That a bill or bills be brought in pursuant to the said resolutions; and that Mr. EUSTIS, Mr. GODDARD, and Mr. STANTON, do prepare and bring in the same. An engrossed bill for the relief of Paul Coulon was read the third time and passed. Mr. S. SMITH, from the committee appointed the ninth instant, on the part of this House, jointly, with the committee appointed on the part of the Senate, "to consider and report what business is necessary to be done by Congress in their present session, and when it may be expedient to close the same," made a report thereon; which was read, and ordered to lie on the table. The House went into Committee of the Whole on the bill for the relief of sick and disabled seamen. Mr. EUSTIS moved to strike out the first section which forms the moneys devoted to the above object into a general fund, to be applied according to the discretion of the President, instead of suffering it to remain, as heretofore, applied to the particular ports, (or those in the vicinity,) from which the moneys are derived. This motion was supported by Messrs. EUSTIS, MITCHILL, and DANA, and opposed by Messrs. S. SMITH, MILLEDGE, DAVIS, MACON, and HUGER. The question was then taken on striking out the first section, and lost; when the committee rose, and reported the bill with amendments. MONDAY, April 19. _Navy Pensions._ An engrossed bill for the relief of widows and orphans of certain persons who have died, or may hereafter die, in the naval service of the United States, was read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas 34, nays 29. _Compensation of Collectors._ The House went into Committee of the Whole on the bill to amend the act fixing the compensation of officers employed in the collection of duties on imposts and tonnage. This bill allows certain compensations to collectors of ports, provided the clear annual receipt does not exceed $5,000. A motion was made to strike out $5,000, for the purpose of introducing $4,000. It was contended that this latter sum was sufficient compensation to any collector; that it greatly exceeded most of the compensations allowed to the Federal officers; and that as money was appreciating, it became necessary to reduce the salaries of officers generally. In reply it was observed that very few collectors would receive so large a sum as $5,000--none other than those of New York, Philadelphia, Baltimore, and perhaps Charleston; that the responsibility attached to these officers was greater than that attached to any other, as in some instances two million of dollars passed through their hands; that the temptation to violate duty was proportionably great; and that, from these considerations, it became the Government to afford them a liberal compensation; and that the sum was considerably below that heretofore allowed. The question was taken on striking out $5,000, and lost--yeas 26. Mr. STANLEY moved to strike out that part of the bill which deducted from the compensations made to the collectors of Newbern and Edenton, the sum of $250, heretofore allowed beyond their fees. For this motion he assigned several reasons: among which were the inadequacy of the compensations, viz: about $1,600 to the duties performed, which were, notwithstanding the small amount of duties, very burdensome, owing to the smallness of the cargoes imported, and theirs being greatly inferior to the compensations allowed to the collectors of Wilmington and Petersburg. Mr. S. SMITH informed the committee that the principle on which the several compensations had been graduated was, that when the gross emoluments exceed $2,000, the salary heretofore allowed by law, in addition to the emoluments, should be withdrawn. This was the fact in relation to the ports of Newbern and Edenton; and as the duties in each of these ports did not exceed $45,000, the compensation seemed adequate; he was, however, far from being tenacious, and would have little objection to a vote of the House which should increase it. Motion lost--yeas 25. The committee rose, and reported the bill without amendment. Mr. SOUTHARD renewed the motion to strike out $5,000, for the purpose of inserting $4,000, (the same motion made in committee,) and assigned substantially the same reasons above stated. Messrs. STANLEY, BACON, and SMILIE, delivered a few observations for, and Mr. HUGER against the motion, which was taken by yeas and nays, on the call of Mr. SOUTHARD, and lost--yeas 31, nays 40. THURSDAY, April 22. _French Spoliations._ Mr. GILES, from the committee appointed on the fifth of February last, to whom were referred the memorials and petitions of sundry citizens of the United States, and resident merchants therein, praying relief in the case of depredations committed on their vessels and cargoes, while in pursuit of lawful commerce, by the cruisers of the French Republic, during the late European war, made a report thereon; which was read, and ordered to lie on the table. FRIDAY, April 23. _Judiciary System._ The question was then put on the passage of the bill. Mr. BAYARD called for the yeas and nays, which were taken, and stood--yeas 46, nays 30, as follows: YEAS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, Phanuel Bishop, Walter Bowie, Richard Brent, Robert Brown, William Butler, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, John Dawson, William Dickson, Lucas Elmendorph, John Fowler, William B. Giles, Edwin Gray, John A. Hanna, Daniel Heister, William Helms, James Holland, David Holmes, Michael Leib, John Milledge, Anthony New, Joseph H. Nicholson, John Smilie, Israel Smith, John Smith, (of New York,) John Smith, (of Virginia,) Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Stewart, John Taliaferro, jr., Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, John P. Van Ness, Isaac Van Horne, and Robert Williams. NAYS.--James A. Bayard, Thomas Boude, John Campbell, Manasseh Cutler, Samuel W. Dana, John Davenport, Thomas T. Davis, John Dennis, Ebenezer Elmer, Abiel Foster, Calvin Goddard, Roger Griswold, Seth Hastings, Archibald Henderson, Thomas Lowndes, Lewis R. Morris, Thomas Morris, James Mott, Thomas Plater, Nathan Read, John Stanley, John Stratton, Benjamin Tallmadge, Samuel Tenney, Thomas Tillinghast, George P. Upham, Peleg Wadsworth, Lemuel Williams, and Henry Woods. TUESDAY, April 27. _Naval Sites._ UNAUTHORIZED PURCHASES. Mr. MITCHILL, from the committee appointed on so much of the President's Message as relates to naval sites, &c., made a further report. The report concludes as follows: "The committee find that, prior to the fourth of March, 1801, the sum of one hundred and ninety-nine thousand and thirty dollars, and ninety-two cents, has been expended in purchasing navy yards and making improvements upon them, without any law authorizing the purchase, or any appropriation of money, either for purchase or improvements." WEDNESDAY, April 28. _Sedition Act._ PETITION OF THOMAS COOPER. A petition of Thomas Cooper, of the county of Northumberland, in the State of Pennsylvania, was presented to the House and read, setting forth that, in the month of April, eighteen hundred, he was tried and condemned at Philadelphia, before Samuel Chase and Richard Peters, judges of the circuit court of the United States there sitting, for having written and published a libel upon the political character and conduct of John Adams, the then President of the United States; and was thereupon adjudged to pay a fine of four hundred dollars, and to suffer an imprisonment of six months; which punishment he accordingly underwent; that he apprehends the said trial, condemnation, and punishment, were unjust: first, because the law, commonly called the Sedition law, under which he was indicted, was passed in direct opposition to the letter and the spirit of the Constitution of the United States; and secondly, because the said judges did not only take for granted the constitutionality of the said law, but did unjustly and improperly refuse to grant him a _subpoena ad testificandum_, directed to the said John Adams; and therefore praying such redress as the wisdom of Congress shall deign to bestow. Mr. GRISWOLD moved to reject the prayer of the petition. Mr. GILES moved to postpone the consideration of the petition till the third Monday in November. On this motion a debate ensued, in which Mr. GILES and Mr. RANDOLPH supported, and Mr. GRISWOLD and Mr. BAYARD opposed the motion. The question on postponement was carried, by a large majority. SATURDAY, May 1. _Disbursement of Public Moneys._ UNAUTHORIZED PURCHASE OF NAVY YARDS. Mr. GRISWOLD.--Again, the committee say that four navy yards were purchased without authority, and the money misapplied which was paid for them. In my judgment, this is one of the most extraordinary opinions ever pronounced. The facts which gave rise to the purchase of the navy yards were as follows: In the year 1799, Congress authorized by law the building of six 74-gun ships, and one million of dollars was then appropriated for that object, and for building six sloops-of-war. The Secretary of the Treasury found that the committee ought to have understood that ships could not be built either in the air or upon the water, and as he was directed to build the ships, that he must, of course, procure land to place them upon, and that the land must be either purchased or hired. He found that there was not a navy yard within the United States calculated for building ships-of-the-line, and that the expense of preparing yards upon private property would be lost the moment the ship was launched, and of course that this would be bad economy. Experience had likewise taught him, that the better mode would be to purchase the ground, as it would then remain at the control of the Government, so long as it was wanted, and the improvements would be saved. This course was accordingly pursued, and I believe that few gentlemen, except the committee, will conclude that it was not the wisest and best. But whether it was the best course or not, it was certainly authorized by law, because it can never be seriously doubted, whether a law which directs a thing to be done, does authorize the agents to be employed to do every thing which becomes necessary for accomplishing the object. The laws which have authorized the building of ships have certainly empowered the public agents to purchase timber, copper, cordage, and every other necessary material, and yet no law for those objects has ever named any one of those articles. On the same principle, the law which directed the building of these particular ships, necessarily authorized the public agent to procure the ground to place them upon, although it was not said, whether the ships should be built upon the water or upon the land. But there has been one omission in this part of the report, which, on every principle of fairness ought to be connected with it, and for which purpose the report ought to be recommitted: the omission of the letter of Mr. Stoddert, late Secretary of the Navy, explanatory of the purchase made by him of the navy yards, addressed to the committee, in answer to an application made by them upon this subject. This letter contains, in my opinion, a complete justification of that transaction, and was so viewed by the minority of the committee, who urged that it might, at least, be included in the report; but, to our astonishment, the minority refused this justice to the man whom their report had implicated. This opinion of the majority, in respect to the propriety of including Mr. Stoddert's letter, I must believe, will remain a solitary one, for I can scarcely imagine it possible that any other gentleman in this House would have refused, when they presented a charge against this gentleman with one hand, to offer with the other his vindication, written at their own request. If, however, the motion to recommit should prevail, I will then move an instruction to the committee, which will produce Mr. Stoddert's letter. What renders the report of the committee still more extraordinary, both in respect to erecting the buildings, and also the purchase of navy yards, is, that another subject, resembling these in principle, was before the committee, and on which they refused to report. This was the erecting of the extensive navy stores in this place by the present Administration. The present Secretary of the Navy was requested to inform the committee when those stores were erected, and from what fund the money had been taken. His answer satisfied the committee that the stores had been erected by the present Administration, and that the money, if I recollect correctly, had been taken from an appropriation for the 74's, navy yards, and docks. The minority of the committee believed, what I trust will be generally believed by those who examine the question, that this was (to say no more of it) at least as doubtful an expenditure as that for the purchase of navy yards, or for erecting the buildings on the Schuylkill. If an authority to build 74's, to complete navy yards and docks, gave an authority to erect stores for the accommodation of the navy, it was thought that an authority to build ships, necessarily included a power to procure the land to place them upon; and that an authority to purchase military stores and to manage the affairs of the army necessarily included a power to furnish, at the public expense, buildings to cover the stores, and for other necessary military purposes, at the discretion of the officers intrusted with those concerns. The minority of the committee, therefore, urged to include this transaction in the report, together with the letter of the Secretary of the Navy, but the request was rejected by the majority. We believed that the cases were precisely similar in principle, and that it was not conducting with impartiality to include the one without the other; and we have thought that when it was discovered that the present Administration was conducting on principles precisely similar to those of their predecessors, it would greatly tend to satisfy all parties that the conduct of the Government had been correct. I feel no hesitation in declaring that, in my judgment, the present Administration were authorized to erect the navy stores, although I believe that the power may be better questioned than it could be in the other cases. These navy stores, I presume, are useful both for receiving the necessary materials for ship building, and securing the stores of the public ships laid up in ordinary; and although not expressly authorized by the words of the law, may very well be considered as a proper appendage to a navy yard, or as buildings rendered necessary in the finishing of the 74's; and as to the extent of the buildings, I am content to leave that point to the Department to which it has been confided. The propriety, however, of including this statement in the report (I trust) will be apparent to the House, and it will not in this place be thought correct to confine our criticisms exclusively to the past Administration. I therefore urge this as a further reason for recommitting the report. Mr. NICHOLSON had very little inclination, at this time, to enter into an explanation of this subject, which had been so misunderstood by the gentleman just up, on account of indisposition, nor was he very anxiously opposed to the recommitment, but he could perceive not a shadow of reason why the report should be recommitted. The gentleman had grounded his motion upon the opinion, that all the necessary facts had not been stated. It was, to be sure, a very late period of the session, and the discussion would therefore consume much precious time; but notwithstanding that, if it should appear that any material facts had been suppressed, there would be good ground for recommitting the report. He should therefore think it necessary to test the grounds advanced, to prove the necessity of the recommitment. As to the navy yards, the committee having been appointed "to report whether moneys drawn from the Treasury have been faithfully applied to the objects for which they were appropriated, and whether the same have been regularly accounted for;" and knowing that six navy yards had been purchased, very naturally inquired under what authority these purchases had been made, and how they were paid for. They referred to the law authorizing the building of six seventy-fours and six sloops-of-war. The committee submitted an inquiry to the former Secretary of the Navy, (Mr. Stoddert,) directing him to inform the committee as to the purchase. Mr. Stoddert answered that a law had passed, appropriating one million of dollars for building the seventy-fours and sloops-of-war, and that fifty thousand dollars were also appropriated for two dock-yards; and also that two hundred thousand dollars were appropriated for the purchase of timber, or land clothed therewith; and that he thought himself authorized to purchase six navy yards, wherein to build the seventy-fours. To these several laws the committee referred for the authority under which the Secretary acted, but they could find no such authority; they could find no other, than authority to purchase two dock-yards, wherein to repair the ships. Now, although not stated in the report, there is very good reason to believe that the fifty thousand dollars never was laid out upon the two dock-yards, but that this sum was cast into the surplus fund. Whether Mr. Stoddert's opinion was correct or not, that it would be more economical to build the seventy-fours in public yards, than in private yards at rent, they were not appointed to inquire; it was their business to say whether he was authorized to act so, let his private opinion be what it might. The committee were clearly of opinion, that he was not authorized to take money appropriated for one purpose and make use of it for another. As to the reason, why the gentleman wishes the report recommitted; to wit, to insert Mr. Stoddert's answer with the report; it is true a motion for the insertion was made. But the committee thought that letter was addressed to them, and not to the House; that it was to inform their minds, so as to enable them to make the report. They paid due attention to the reasoning of the letter, but it did not convince them that Mr. S. acted authoritatively. Mr. Stoddert's reasoning upon the subject could not form a part of the report; the committee were called upon to form an opinion, and not to substitute that of any individual. They were to inquire whether moneys appropriated were used to the purposes for which they were appropriated. They thought it was not, because it was appropriated to build ships, and to purchase land with timber on it, or timber alone. The question then is, whether six navy yards are six seventy-four gun ships, and whether six sloops-of-war are lands with timber growing on it or not? If Mr. Stoddert's reasoning had been adopted by the committee, it would have become their reasoning, and except it should be theirs, it would have had no business in the report. If a disposition of vindication could have been admitted, Mr. Stoddert might have been permitted to have appeared with counsel before the committee, but facts alone were required, and facts the committee state. Ships had been built for the public before, but the idea never was entertained to build docks for them. No measure different from those taken in the building of the frigates, except by legal authority, ought to have been taken with the seventy-fours. The case of the navy yard at this place was brought before the committee. It was the request of the minority that the case should be inquired into. The committee sent to request the Secretary of the Navy to say by what authority the storehouse had been erected here, or from what fund it was paid. The answer was, that the storehouse had been erected out of a fund granted in February, eighteen hundred and one, for completing the seventy-fours, the navy yards, and the docks. The ships had been ordered to be laid up in ordinary at this place, and the navy yard purchased. When the present Secretary of the Navy came into office, he found, that as a navy yard was to be completed here, and as sails, rigging, and other naval stores, must be kept here; and finding that one storehouse was already built, and another begun, here, it would be most prudent to complete that storehouse, as a necessary appendage to a navy yard where shipping would be sent for repairs. To this none of the gentlemen objected, but rather approved; and this is surely a purpose to which the money was appropriated. Whether the other applications are or not, is for the House to decide. The committee have stated the facts. The gentleman says the accountant of the War Department was satisfied with the accounts of General Wilkins. I did not understand the fact so--vouchers were sent on, but they were not satisfactory. Mr. BAYARD.--I shall beg the indulgence only of a few words, upon one or two heads, respecting which, the opinion I entertain is decidedly opposed to that expressed by a majority of the committee. I cannot well conceive of a plainer mistake, than what appears in the opinion, pronounced on the purchase of six navy yards, made by the late Secretary of the Navy. The committee, I think, ought to be allowed an opportunity of reviewing that opinion. Four of those six yards are considered as purchased without authority, and the money paid for them misapplied. By the act of the Legislature, of February, 1799, the Secretary of the Navy was directed to cause to be built six ships, each to carry not less than seventy-four guns; and six sloops-of-war of eighteen guns. For this purpose, a million of dollars was appropriated; two hundred thousand were appropriated to the purchase of land, bearing timber suitable for the navy, and fifty thousand dollars for the making of two docks. These laws, passed on successive days, indicated the design of a permanent Navy Establishment. It was perfectly understood that the ships of the line were not directed to be built for the occasional defence of the country at that period, but were intended as the commencement of a lasting system of defence, which was expected to increase with the growth of the commerce and resources of the country. It was far from our expectation that the Navy of the United States was to be limited to six ships of the line, or to any number within the convenient means of the country, short of a force adequate to render our flag respectable and our navigation secure. It was not supposed that the seventy-fours would be launched for several years, but we had hopes when they left the stocks, a flourishing commerce would enable us to lay the keels of new ships in their places. Under this view were the two hundred thousand dollars appropriated, to the purchase of land producing timber fit for a navy. With this knowledge, so plainly derivable from the policy pursued by the Legislature, what was the Secretary of the Navy to do? It was made his duty to build six seventy-fours and six sloops-of-war. It is surely not expected that they were to be built on the water or in the air, and of consequence it will be allowed that he had authority to provide yards, for the purpose of constructing them. The public had no yards, and it was therefore necessary to obtain ground from individuals. As there were no persons disposed to make charitable grants, it remained only for the United States to purchase ground in fee simple, or for a term of years, paying a gross sum or an annual rent. The act of Congress, directing the ships to be built, appropriated not a dollar either for the renting or for the purchase of land. But a million of dollars were appropriated to the building of the ships, which was directed to be done, but which could not be done without an expenditure for land. Can there be a plainer proposition, than that an appropriation for a certain service, embraces every article without which the service cannot be performed? In the present instance, the service imposed upon the Secretary, could not be performed without obtaining navy yards at the public expense. It therefore rested in his discretion, for the faithful exercise of which he was accountable to the Government, either to purchase or rent the ground, necessary for the yards. It was his duty to conform to the views of the Legislature, and to make such an arrangement as would be most advantageous to the public. If it answered the object, and was most for the interest of the Government to rent, then surely he ought to have rented it; but if it comported more with their views, or was more to their benefit to purchase, it was then his duty to purchase. This inquiry, however, was never made by the committee. They never asked the question whether it was cheaper to buy or to rent, and they have condemned the Secretary for buying and not renting, when he had no more authority to rent than to buy, and when by buying he has probably saved to the United States several hundred thousand dollars. The situation of this officer is peculiarly hard. Having been directed to build a number of ships for the public service, he has purchased navy yards for the purpose, and in consequence has subjected himself to the accusation of expending public money without authority. If he had rented land for the purpose, he would have been equally liable to the same reproach; and if he had neglected to do either, he would have been exposed to an impeachment. The Secretary has it fully in his power to show, that his purchases will save a large sum of money to the United States. A navy yard, for a seventy-four, cannot be prepared without great expense. Under this head, I am informed by the Secretary, that one hundred thousand dollars were expended on one frigate, the Constellation. This was occasioned in a great degree by leasing the yard. At the expiration of the lease, the public lose the benefit of all their expense in preparing and improving the ground. In addition to the inference which the Secretary might fairly make, of an authority to purchase ground for the navy yards, if a purchase could be made on cheaper terms than a contract of lease, he had further to consider the intention, plainly manifested by the Legislature, of establishing a system which would require the use of these navy yards at a future time, beyond the duration of any common lease. Nay, he knew not what time was to be consumed in building the ships directed, and of course could not know for what term a contract could be made. At present, if the Government should be disposed to sell the ships on the stocks, they have the power to sell the navy yards, and they will have the same power when the ships are launched; and they may thus convert in effect the permanent purchase into a term for years, and restore to the Treasury the money which has been expended. But, sir, what I consider as the hardest act on the part of the majority of the committee, was their refusal to suffer the answer of the Secretary to the letter we addressed to him, explaining the grounds of his conduct, to accompany the documents annexed to the report. We have been told by the gentleman from Maryland (Mr. NICHOLSON) that it was not the business of the committee to report the opinions of the Secretary, or of any other individual. If this be correct, I believe it was as little the business of the committee to report their own opinions. They should have confined themselves to the statement of facts, and upon those facts have left the House and the nation at large to form their own opinions. If this course had been pursued, there would have been little occasion to publish the reasoning of Mr. Stoddert; but, as the opinion of the committee is merely their inference from certain premises, it was due to the public, as well as to the Secretary, that the grounds should be explained which had led him to a different conclusion from that adopted by the committee. This report seems, at present, intended only for public information; certainly I must believe to give correct information. The letter of Mr. Stoddert throws great light upon a part of it, and when our object is only to inform the people on a subject, why should we refuse any light which places it more clearly before their eyes? MONDAY, 5 o'clock P. M., May 3. _Adjournment._ On motion, _Ordered_, That Mr. GRISWOLD and Mr. SAMUEL SMITH be appointed a committee, on the part of this House, jointly, with such committee as may be appointed on the part of the Senate, to wait on the PRESIDENT OF THE UNITED STATES, and notify him of the proposed recess of Congress. A message from the Senate informed the House that the Senate have appointed a committee on their part, jointly, with the committee appointed on the part of this House, to wait on the PRESIDENT OF THE UNITED STATES, and notify him of the proposed recess of Congress. Mr. GRISWOLD, from the committee appointed on the part of this House, jointly, with the committee appointed on the part of the Senate, to wait on the PRESIDENT OF THE UNITED STATES, and notify him of the proposed recess of Congress, reported that the committee had performed that service; and that the PRESIDENT signified to them he had no farther communication to make during the present Session. _Ordered_, That a message be sent to the Senate, to inform them that this House, having completed the business before them, are now about to adjourn until the first Monday in December next; and that the Clerk of this House do go with the said message. A message from the Senate informed the House that the Senate, having completed the Legislative business before them, are now ready to adjourn. Whereupon, The SPEAKER adjourned the House until the first Monday in December next. SEVENTH CONGRESS.--SECOND SESSION. BEGUN AT THE CITY OF WASHINGTON, DECEMBER 6, 1802. PROCEEDINGS IN THE SENATE. MONDAY, December 6, 1802. In pursuance of the law of last session, the second session of the seventh Congress commenced this day, at the city of Washington, and the Senate assembled, in their Chamber, at the Capitol. PRESENT: SIMEON OLCOTT, from New Hampshire. URIAH TRACY, from Connecticut. CHRISTOPHER ELLERY, from Rhode Island. STEPHEN R. BRADLEY, from Vermont. SAMUEL WHITE, from Delaware. ROBERT WRIGHT, from Maryland. ABRAHAM BALDWIN, from Georgia. WILLIAM PLUMER, appointed a Senator by the State of New Hampshire, to supply the vacancy occasioned by the resignation of JAMES SHEAFE, produced his credentials, and took his seat in the Senate. The number of members assembled not being sufficient to form a quorum, the Senate adjourned. TUESDAY, December 7. Mr. BRECKENRIDGE, from Kentucky; Mr. FOSTER, from Rhode Island; Mr. HOWARD, from Maryland; and Mr. LOGAN, from Pennsylvania, severally attended. There being no quorum, the Senate adjourned. WEDNESDAY, December 8. The number of members assembled not being sufficient to constitute a quorum, the Senate adjourned. THURSDAY, December 9. The number of members assembled not being sufficient to constitute a quorum, the Senate adjourned. FRIDAY, December 10. Mr. S. T. MASON, from Virginia, attended. The number of members assembled not being sufficient to constitute a quorum, the Senate adjourned. SATURDAY, December 11. Mr. FRANKLIN, from North Carolina, attended. The number of members assembled not being sufficient to constitute a quorum, the Senate adjourned. MONDAY, December 13. Mr. J. MASON, from Massachusetts; Mr. DAYTON, and Mr. OGDEN, from New Jersey; and Mr. SUMTER, from South Carolina, severally attended. The VICE PRESIDENT being absent, the Senate proceeded to the choice of a President, _pro tempore_, as the constitution provides, and the ballots being collected and counted, the whole number was found to be 17, of which 9 make a majority. Mr. Bradley had 7, Mr. Tracy had 7, Mr. Baldwin 1, Mr. Dayton 1, Mr. Logan 1. There was consequently no choice. Whereupon, the Senate proceeded to the election of a President, _pro tempore_, as the constitution provides, and the ballots being collected and counted, the whole number was found to be 17, of which 9 make a majority. Mr. Bradley had 8, Mr. Tracy 7, Mr. Dayton 1, Mr. Logan 1. There was consequently no choice. Whereupon the Senate proceeded to the election of a President _pro tempore_, as the Constitution provides, and the ballots being counted, the whole number was found to be 17, of which 9 make a majority. Mr. Bradley had 8, Mr. Tracy 7, Mr. Dayton 1, Mr. Logan 1. There was consequently no choice. Whereupon, the Senate proceeded to the election of a President, _pro tempore_, as the constitution provides, and the ballots being counted, the whole number of votes was 14, of which 8 make a majority. Mr. Tracy had 7, Mr. Bradley 5, Mr. Dayton 1, Mr. Logan 1. There was consequently no choice; and the Senate adjourned. TUESDAY, December 14. The VICE PRESIDENT being absent, the Senate proceeded to the choice of a President, _pro tempore_, as the constitution provides, and the ballots being collected and counted, the whole number was found to be 17, of which 9 make a majority. Mr. Bradley had 9, Mr. Tracy 7, Mr. Dayton 1. Consequently, STEPHEN R. BRADLEY was elected President of the Senate, _pro tempore_. The credentials of Mr. PLUMER, appointed a Senator by the State of New Hampshire, to supply a vacancy occasioned by the resignation of JAMES SHEAFE, Esq., were read; and the oath prescribed by law was administered to him by the President. _Ordered_, That the Secretary wait on the President of the United States, and acquaint him that a quorum of the Senate is assembled, and that, in the absence of the VICE PRESIDENT, they have elected STEPHEN R. BRADLEY, President of the Senate, _pro tempore_. A similar notice was directed to be given to the House of Representatives, and also that the Senate are ready to proceed to business. On motion, it was agreed to proceed to the choice of a Chaplain on the part of the Senate, and the ballots having been collected and counted, the whole number was 17, of which 9 is the majority. Doctor Gantt had 10, Mr. M'Cormick 4, Mr. Priestley 2, Mr. Balch 1. So it was _Resolved_, That the Rev. Dr. GANTT be the Chaplain to Congress, on the part of the Senate, during the present session. WEDNESDAY, December 15. The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: When we assemble together, fellow-citizens, to consider the state of our beloved country, our just attentions are first drawn to those pleasing circumstances which mark the goodness of that Being from whose favor they flow, and the large measure of thankfulness we owe for his bounty. Another year has come around, and finds us still blessed with peace and friendship abroad; law, order, and religion, at home; good affection and harmony with our Indian neighbors; our burdens lightened, yet our income sufficient for the public wants, and the produce of the year great beyond example. These, fellow-citizens, are the circumstances under which we meet: and we remark, with special satisfaction, those which, under the smiles of Providence, result from the skill, industry, and order of our citizens, managing their own affairs in their own way, and for their own use, unembarrassed by too much regulation, unoppressed by fiscal exactions. On the restoration of peace in Europe, that portion of the general carrying trade which had fallen to our share during the war, was abridged by the returning competition of the belligerent powers. This was to be expected, and was just. But, in addition, we find in some parts of Europe monopolizing discriminations, which, in the form of duties, tend effectually to prohibit the carrying thither our own produce in our own vessels. From existing amities, and a spirit of justice, it is hoped that friendly discussion will produce a fair and adequate reciprocity. But should false calculations of interest defeat our hope, it rests with the Legislature to decide whether they will meet inequalities abroad with countervailing inequalities at home, or provide for the evil in any other way. It is with satisfaction I lay before you an act of the British Parliament anticipating this subject so far as to authorize a mutual abolition of the duties and countervailing duties, permitted under the treaty of 1794. It shows, on their part, a spirit of justice and friendly accommodation, which it is our duty and our interest to cultivate with all nations. Whether this would produce a due equality in the navigation between the two countries is a subject for your consideration. Another circumstance which claims attention, as directly affecting the very source of our navigation, is the defect or the evasion of the law providing for the return of seamen, and particularly of those belonging to vessels sold abroad. Numbers of them, discharged in foreign ports, have been thrown on the hands of our Consuls, who, to rescue them from the dangers into which their distresses might plunge them, and save them to their country, have found it necessary, in some cases, to return them at the public charge. The cession of the Spanish province of Louisiana to France, which took place in the course of the late war, will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the Legislature connected with that subject. There was reason, not long since, to apprehend that the warfare in which we were engaged with Tripoli might be taken up by some other of the Barbary Powers. A reinforcement, therefore, was immediately ordered to the vessels already there. Subsequent information, however, has removed these apprehensions for the present. To secure our commerce in that sea with the smallest force competent, we have supposed it best to watch strictly the harbor of Tripoli. Still, however, the shallowness of their coast, and the want of smaller vessels on our part, has permitted some cruisers to escape unobserved; and to one of these an American vessel unfortunately fell a prey. The captain, one American seaman, and two others of color, remain prisoners with them; unless exchanged under an agreement formerly made with the Bashaw, to whom, on the faith of that, some of his captive subjects had been restored. The convention with the State of Georgia has been ratified by their Legislature, and a repurchase from the Creeks has been consequently made of a part of the Tallassee country. In this purchase has been also comprehended a part of the lands within the fork of Oconee and Ocmulgee Rivers. The particulars of the contract will be laid before Congress so soon as they shall be in a state for communication. In order to remove every ground of difference possible with our Indian neighbors, I have proceeded in the work of settling with them and marking the boundaries between us. That with the Choctaw nation is fixed in one part, and will be through the whole within a short time. The country to which their title had been extinguished before the Revolution is sufficient to receive a very respectable population, which Congress will probably see the expediency of encouraging so soon as the limits shall be declared. We are to view this position as an outpost of the United States, surrounded by strong neighbors, and distant from its support. And how far that monopoly which prevents population should here be guarded against, and actual habitation made a condition of the continuance of title, will be for your consideration. A prompt settlement, too, of all existing rights and claims within this Territory presents itself as a preliminary operation. In that part of the Indiana Territory which includes Vincennes, the lines settled with the neighboring tribes fix the extinction of their title at a breadth of twenty-four leagues from east to west, and about the same length, parallel with and including the Wabash. They have also ceded a tract of four miles square, including the salt springs, near the mouth of that river. In the department of finance it is with pleasure I inform you that the receipts of external duties for the last twelve months have exceeded those of any former year, and that the ratio of increase has been also greater than usual. This has enabled us to answer all the regular exigencies of Government, to pay from the Treasury within one year upwards of eight millions of dollars, principal and interest, of the public debt, exclusive of upwards of one million paid by the sale of bank stock, and making in the whole a reduction of nearly five millions and a half of principal, and to have now in the Treasury four millions and a half of dollars, which are in a course of application to the further discharge of debt and current demands. Experience, too, so far, authorizes us to believe, if no extraordinary event supervenes, and the expenses which will be actually incurred shall not be greater than were contemplated by Congress at their last session, that we shall not be disappointed in the expectations then formed. But, nevertheless, as the effect of peace on the amount of duties is not yet fully ascertained, it is the more necessary to practise every useful economy, and to incur no expense which may be avoided without prejudice. No change being deemed necessary in our Military Establishment, an estimate of its expenses for the ensuing year, on its present footing, as also of the sums to be employed in fortifications, and other objects within that department, has been prepared by the Secretary of War, and will make a part of the general estimates which will be presented to you. Considering that our regular troops are employed for local purposes, and that the militia is our general reliance for great and sudden emergencies, you will doubtless think this institution worthy of a review, and give it those improvements of which you find it susceptible. Estimates for the Naval Department, prepared by the Secretary of the Navy, for another year, will, in like manner, be communicated with the general estimates. A small force in the Mediterranean will still be necessary to restrain the Tripoline cruisers; and the uncertain tenure of peace with some other of the Barbary Powers may eventually require that force to be augmented. The necessity of procuring some smaller vessels for that service will raise the estimate; but the difference in their maintenance will soon make it a measure of economy. Presuming it will be deemed expedient to expend annually a convenient sum towards providing the Naval defence which our situation may require, I cannot but recommend that the first appropriations for that purpose may go to the saving what we already possess. No cares, no attentions, can preserve vessels from rapid decay, which lie in water and exposed to the sun. These decays require great and constant repairs, and will consume, if continued, a great portion of the moneys destined to Naval purposes. To avoid this waste of our resources, it is proposed to add to our navy yard here a dock, within which our present vessels may be laid up dry, and under cover from the sun. Under these circumstances, experience proves that works of wood will remain scarcely at all affected by time. The great abundance of running water which this situation possesses, at heights far above the level of the tide, if employed as is practised for lock navigation, furnishes the means for raising and laying up our vessels on a dry and sheltered bed. And should the measure be found useful here, similar depositories for laying up, as well as for building and repairing vessels, may hereafter be undertaken at other navy yards offering the same means. The plans and estimates of the work, prepared by a person of skill and experience, will be presented to you without delay; and from this it will be seen that scarcely more than has been the cost of one vessel is necessary to save the whole, and that the annual sum to be employed towards its completion may be adapted to the views of the Legislature as to Naval expenditure. To cultivate peace, and maintain commerce and navigation in all their lawful enterprises; to foster our fisheries as nurseries of navigation and for the nurture of man, and protect the manufactures adapted to our circumstances; to preserve the faith of the nation by an exact discharge of its debts and contracts, expend the public money with the same care and economy we would practise with our own, and impose on our citizens no unnecessary burdens; to keep, in all things, within the pale of our constitutional powers, and cherish the Federal Union as the only rock of safety; these, fellow-citizens, are the landmarks by which we are to guide ourselves in all our proceedings. By continuing to make these the rule of our action, we shall endear to our countrymen the true principles of their constitution, and promote a union of sentiment and of action, equally auspicious to their happiness and safety. On my part you may count on a cordial concurrence in every measure for the public good; and on all the information I possess which may enable you to discharge to advantage the high functions with which you are invested by your country. TH. JEFFERSON. DECEMBER 15, 1802. The Message and papers therein referred to were read; and _Ordered_, That five hundred copies of the Message of the PRESIDENT OF THE UNITED STATES, together with one hundred copies of each of the papers referred to in the Message, be printed for the use of the Senate. A message from the House of Representatives informed the Senate that the House have elected the Reverend WILLIAM PARKINSON a Chaplain to Congress, on their part. WEDNESDAY, December 22. DWIGHT FOSTER, from the State of Massachusetts, attended. THURSDAY, December 23. Mr. MORRIS, from the State of New York, attended. MONDAY, December 27. Mr. HILLHOUSE, from the State of Connecticut, attended. THURSDAY, December 30. Mr. ANDERSON, and Mr. COCKE, from the State of Tennessee, severally attended. MONDAY, January 3, 1803. Mr. NICHOLAS, from the State of Virginia, and Mr. WELLS, from the State of Delaware, attended. FRIDAY, January 7. Mr. STONE, from North Carolina, attended. The PRESIDENT communicated a letter signed T. Worthington, agent for the State of Ohio, enclosing a copy of the constitution of the said State, and requesting it might be laid before the Senate; and they were read, and ordered to lie for consideration. The Senate resumed the consideration of the motion made on the 5th instant for extending the laws of the United States to the State of Ohio, together with the amendment proposed thereon; which amendment was withdrawn; and it was agreed to adopt the motion, amended as follows: _Resolved_, That a committee be appointed to inquire whether any, and, if any, what Legislative measures may be necessary for admitting the State of Ohio into the Union, or for extending to that State the laws of the United States; and _Ordered_, That Messrs. BRECKENRIDGE, MORRIS, and ANDERSON, be the committee, and that the letter signed T. Worthington, agent for the State of Ohio, laid before the Senate this morning, together with a copy of the constitution of said State, be referred to the same committee, to consider and report thereon. The bill to carry into effect the several resolutions of Congress for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson, and Scriven, was read the third time. On motion to postpone the further consideration of this bill until the first Monday in December next, it passed in the negative--yeas 9, nays 17, as follows: YEAS.--Messrs. Anderson, Baldwin, Bradley, Breckenridge, Cocke, Ellery, Nicholas, Sumter, and Wright. NAYS.--Messrs. Clinton, Dayton, T. Foster, D. Foster, Franklin, Hillhouse, Howard, Jackson, Logan, J. Mason, Morris, Olcott, Plumer, Stone, Tracy, Wells, and White. On the question, Shall this bill pass as amended? it was determined in the affirmative--yeas 18, nays 8, as follows: YEAS.--Messrs. Baldwin, Clinton, Dayton, T. Foster, D. Foster, Franklin, Hillhouse, Howard, Jackson, Logan, J. Mason, Morris, Olcott, Plumer, Stone, Tracy, Wells, and White. NAYS.--Messrs. Anderson, Bradley, Breckenridge, Cocke, Ellery, Nicholas, Sumter, and Wright. So it was _Resolved_, That this bill pass, that it be engrossed, and that the title thereof be "An act to carry into effect the several resolutions of Congress for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson, and Scriven." TUESDAY, January 11. In Executive session, the following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate_: The cession of the Spanish province of Louisiana to France, and perhaps of the Floridas, and the late suspension of our right of deposit at New Orleans, are events of primary interest to the United States. On both occasions, such measures were promptly taken as were thought most likely amicably to remove the present and to prevent future causes of inquietude. The objects of these measures were to obtain the territory on the left bank of the Mississippi, and eastward of that, if practicable, on conditions to which the proper authorities of our country would agree; or, at least, to prevent any changes which might lessen the secure exercise of our rights. While my confidence in our Minister Plenipotentiary at Paris is entire and undiminished, I still think that these objects might be promoted by joining with him a person sent from hence directly, carrying with him the feelings and sentiments of the nation, excited on the late occurrence, impressed by full communications of all the views we entertain on this interesting subject; and thus prepared to meet and to improve, to a useful result, the counter-propositions of the other contracting party, whatsoever form their interests may give to them, and to secure to us the ultimate accomplishment of our object. I therefore nominate Robert R. Livingston to be Minister Plenipotentiary, and James Monroe to be Minister Extraordinary and Plenipotentiary, with full powers to both, jointly, or to either, on the death of the other, to enter into a treaty or convention with the First Consul of France, for the purpose of enlarging, and more effectually securing, our rights and interests in the river Mississippi, and in the territories eastward thereof. But as the possession of these provinces is still in Spain, and the course of events may retard or prevent the cession to France being carried into effect, to secure our object, it will be expedient to address equal powers to the Government of Spain also, to be used only in the event of its being necessary. I therefore nominate Charles Pinckney to be Minister Plenipotentiary, and James Monroe, of Virginia, to be Minister Extraordinary and Plenipotentiary, with full powers to both, jointly, or to either, on the death of the other, to enter into a treaty or convention with His Catholic Majesty, for the purpose of enlarging, and more effectually securing, our rights and interests in the river Mississippi, and in the territories eastward thereof. JAN. 11, 1803. TH. JEFFERSON. The Messages and papers therein referred to were read, and ordered that they severally lie for consideration. MONDAY, January 17. Mr. BROWN, from the State of Kentucky, attended. WEDNESDAY, January 19. AARON BURR, Vice President of the United States, and President of the Senate, attended. THURSDAY, January 20. The VICE PRESIDENT laid before the Senate a certificate of the election of SAMUEL M'CLAY, Esq. of Northumberland county, and State of Pennsylvania, to be a Senator of the United States from the fourth day of March next, inclusive; and it was read and ordered to lie on file. MONDAY, January 24. The VICE PRESIDENT communicated a letter from the Clerk of the House of Representatives of the State of Delaware, enclosing the credentials of SAMUEL WHITE, Esq., elected a Senator of the United States for the term of six years, commencing on the 4th day of March next; and they were read. _Ordered_, That they lie on file. WEDNESDAY, January 26. JAMES ROSS, from Pennsylvania, attended. THURSDAY, January 27. Mr. Ross presented the several representations and memorials of Richard Basset, Egbert Benson, Benjamin Bourne, William Griffith, Samuel Hitchcock, B. P. Key, C. Magill, Jeremiah Smith, G. K. Taylor, William Tilghman, and Oliver Wolcott, judges of the circuit courts under the late act, entitled "An act to provide for the more convenient organization of the Courts of the United States;" stating that, since the repeal of the said act, no law had been made for assigning to them the execution of any Judicial functions, nor has any provision been made for the payment of their stipulated compensations; and most respectfully requesting Congress to review the existing laws with respect to the officers in question; and the memorials were read. _Ordered_, That they be referred to Messrs. MORRIS, ROSS, and DAYTON, to consider and report thereon, and that the memorials be printed for the use of the Senate. The memorial is as follows _To the Honorable the Senate and House of Representatives in Congress assembled_: The undersigned most respectfully submit the following resolution and memorial. By an act of Congress passed on the thirteenth day of February, in the year of our Lord one thousand eight hundred and one, entitled "An act to provide for the more convenient organization of the courts of the United States," certain judicial offices were created, and courts established, called circuit courts of the United States. In virtue of appointments made under the Constitution of the United States, the undersigned became vested with the offices so created, and received commissions authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior. During the last session an act of Congress passed, by which the above-mentioned law was declared to be repealed; since which no law has been made for assigning to your memorialists the execution of any judicial functions, nor has any provision been made for the payment of their stipulated compensations. Under these circumstances, and finding it expressly declared in the Constitution of the United States, that "The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office," the undersigned, after the most deliberate consideration, are compelled to represent it as their opinion, that the rights secured to them by the constitution, as members of the Judicial Department, have been impaired. With this sincere conviction, and influenced by a sense of public duty, they most respectfully request of Congress to review the existing laws which respect the offices in question, and to define the duties to be performed by the undersigned, by such provisions as shall be consistent with the constitution, and the convenient administration of justice. The right of the undersigned to their compensations, they sincerely believe to be secured by the constitution, notwithstanding any modification of the Judicial Department, which, in the opinion of Congress, public convenience may recommend. This right, however, involving a personal interest, will be cheerfully submitted to Judicial examination and decision, in such manner as the wisdom and impartiality of Congress may prescribe. That judges should not be deprived of their offices or compensations without misbehavior appears to the undersigned to be among the first and best established principles of the American constitutions; and in the various reforms they have undergone, it has been preserved and guarded with increased solicitude. On this basis the Constitution of the United States has laid the foundation of the Judicial Department, and expressed its meaning in terms equally plain and peremptory. This being the deliberate and solemn opinion of the undersigned, the duty of their stations requires that they should declare it to the Legislative body. They regret the necessity which compels them to make the representation, and they confide that it will be attributed to a conviction that they ought not voluntarily to surrender rights and authorities intrusted to their protection, not for their personal advantage, but for the benefit of the community. THURSDAY, February 3. _Memorial of Judges._ Agreeably to the order of the day, the Senate took into consideration the report of the committee on the several memorials of the judges, under the late act to provide for the more convenient organization of the courts of the United States. The committee report as follows: That the petitioners were judges of certain courts, inferior to the Supreme Court, constituted by an act of the 13th of February, 1801, and duly commissioned to hold their offices during good behavior. That, while holding and exercising their offices, an act was passed on the 8th of March last, to repeal the said act of the 13th of February, 1801, and transfer the duties of the said judges from them to others. That a question has arisen whether, by reason of the premises, the said petitioners be deprived of their offices. That this question, depending on the construction of the laws and Constitution of the United States, is not properly cognizable by the Senate. The committee, therefore, conceive it improper either to give reasons or express opinions; but they consider it as a question of high and serious import, and believe that a speedy investigation and final decision is of great moment to the commonwealth. Wherefore, they submit the following resolution. _Resolved_, That the President of the United States be requested to cause an information, in the nature of a _quo warranto_, to be filed by the Attorney General against Richard Basset, one of the said petitioners, for the purpose of deciding judicially on their claims. Mr. MORRIS said, I rise, Mr. PRESIDENT, as chairman of the committee whose report you have just had the goodness to read, for the purpose of explaining their reasons. If this were a common or an ordinary occasion, if no heats had been excited, if there were no unpleasant, no tormenting recollections, a measure so plain, so easy, so simple, would require neither argument nor persuasion. It would be adopted for its own interior evidence, and from the general sense of propriety. Unhappily, sir, this is not the case. Serious differences of opinion have existed, and still exist on the subject with which it is connected. From these have arisen disputes, divisions, bickerings. There is not, I fear, in the minds of men, that calm impartiality which is needful to fair investigation. There remains much of prejudice, of irritability. Your committee have pursued the course which appeared to be proper, not only in itself, but according to the existent circumstances. Gentlemen will easily see that they might have made an elaborate report, containing a long detail of reasons to establish a favorite conclusion; and a slight knowledge of the forms of business will show, that they might have placed that report at length on your journals. But would this have been right? Would it have tended to conciliate? Would it have been a proper return for the unanimity with which your committee was chosen? Surely it would not; and is it not the duty of every good citizen to heal, as far as possible, the wounds of society? To calm those irritations which disturb its repose? To remove all things which may alarm, torment, or exacerbate? Mr. President, your committee have no intention, no wish to revive a discussion of points already settled. While the act of last session was in agitation, we opposed it steadily, pertinaciously. But that act has become a law, and to the authority of the law we bow submissively. While in suspense, we thought it our duty, as Senators, to oppose it. But since it has been adopted, according to the forms of the constitution, we know that as citizens we are bound to obey. With these deep impressions, then, of what is due to the supreme law of our land, I shall proceed to the report of your committee, and endeavor to explain its several parts. Gentlemen will perceive that the question which the memorialists have submitted to our investigation is, whether the law of last session has deprived them of their office of judge. Your committee consider this question as not being cognizable by the Senate. It is not for the Senate, nor the Representatives, nor both combined, to interpret their own acts. We are a part of the Legislature. A part of the Executive power is also delegated to us. If the Judiciary be added, it will constitute a tyranny. It is, indeed, the very definition of tyranny which has been given by those best acquainted with the subject. This Senate can have no wish to arrogate power. It is too just, too wise. If a sense of propriety did not prevent, prudence alone would forbid the attempt. This body is too feeble for the exercise of so much authority. Its form, its constitution, the mode and manner of its creation and existence, the strength and structure of its members, render it incapable of sustaining a greater weight of power. Your committee, sir, have ventured to express their belief, that the question should be speedily settled. I learned in early youth, from the volumes of professional science, that it is expedient for the Commonwealth that a speedy end should be put to litigation; and if it be important that litigation should cease between man and man, how much more important that a litigated point of public right, which interests and agitates the whole community, should be laid at rest? And if this be important in the general course of things, is it not, under present circumstances, indispensable? And how is it to be effected? By an exertion of Legislative might; by force. Remember, force will excite resistance. Such is the nature of the human heart. Free citizens revolt with disdain at the exercise of force. But judgment commands their prompt, their willing obedience. When the law is known, when it is declared by the proper tribunals, all will bow to its authority. You, then, may expect a full, and quiet, and general submission. But while it is litigated and uncertain what the law is, differences will exist, and discord will prevail. It is under these impressions, sir, that your committee have presumed to offer the resolutions on your table; and as some of the technical terms may not be familiar to every gentleman, it may be proper to state the kind of proceeding which is recommended. The attorney general, or, as he is denominated in French idiom, the public accuser, will institute, before the proper tribunal, an inquiry by what authority these men claim to hold and exercise the office of judge. It will then be incumbent upon them, either to disclaim the office, and then there is an end of the question; or else (claiming it) to establish their right. And to do this, they must prove two things; first, that the office exists, and secondly, that of right it belongs to them. Failing of either, their claim is gone. Now, sir, it may be well to consider the decisions which may be made, and their probable effect. I take it for granted, that these gentlemen, who have asked a Judicial decision, will not disclaim, and that whatever judgment may be given in the first instance, the cause will be brought up to the Supreme Court. If the judgment, in the last resort, should be (as it probably would be) against the claim, all complaint will be quieted, and all opposition will cease. Some then, indeed, might triumph. For my own part, I should find in it great consolation--the consolation of knowing that, however wrong may have been my own opinions, the Supreme Legislature of my country have done right. The pride of opinion might, indeed, be wounded; but God forbid, that from motives of pride, or from any other motive, I should hear, without deep concern, that the Legislature of my country have violated that sacred charter from which they derive their authority! But suppose an opinion different, contrarient, or the very reverse (for that also is possible.) Will the judges rudely declare that you have violated the constitution, unmindful of your duty, and regardless of your oath? No. With that decency which becomes the Judicial character; that decency which upholds national dignity and impresses obedience on the public will; that decency, the handmaid of the graces, which more adorns a magistrate than ermine, aye, than royal robes; with that decency which so peculiarly befits their state and condition, they will declare what the Legislature meant. They will never presume to believe, much less to declare, that you meant to violate the constitution. There will be no dangerous and hateful clashing of public authorities. They will never question the exercise of that high discretion with which you are invested. They will not deny your full supremacy. They will not examine into your motives, nor assign improper views. They will respect you so long as they preserve a due respect for themselves. They will declare, that in assigning duties to one officer, and taking them from another, you have to consult only your own convictions of what the interest or convenience or the people may require. They will modestly conclude, that you did not mean to abolish the offices which the constitution had forbidden you to abolish; and, therefore, finding that it was not your intention to abolish, they will declare that the offices still exist. Such, sir, would be the language of your supreme Judiciary, from the high sense they entertain of their duty. And, if it were decent to suggest in this Senate, that they were lost to a sense of duty, can it be believed, that a few feeble judges will dare oppose themselves to the power of the Legislature? The VICE PRESIDENT rose, and said he must call the attention of the Senate to the point in discussion, which was, whether the Senate would request the President to cause a process to be instituted for the purpose of ascertaining whether the petitioners still hold the office of judge. On this question, it could not be in order to go back to a law passed at the last session, and to discuss the merits of that law. Mr. JACKSON said, it appeared by the memorial that the petitioners considered themselves as being still judges, notwithstanding the law of last session. He thought, therefore, it could not be out of order to show that that act deprived them of their offices. Mr. WRIGHT premised, that he would endeavor to confine his remarks to the point before the Senate. He felt no disposition to travel again over the ground which had been traversed at the last session. The petition was addressed to both Houses, and prayed for two things; first, that Congress, in their Legislative capacity, would assign to the petitioners some Judicial duties; and secondly, that they would authorize a Judicial investigation of their claim to compensation. The committee, therefore, ought to have confined their inquiries to these points, and to have reported accordingly. Instead of that, they had reported a resolution, which, if adopted, would be neither a grant nor a denial of the prayer of the petition. In doing this, the committee had exceeded their powers, and proposed a measure which the Senate itself was not authorized to adopt. Mr. W. took a review of the constitutional powers of the Senate, in its Legislative and Executive capacities, and inquired, Have we any constitutional authority to make such a request of the President? In what part of the constitution is such power delegated to this House? Are we to make the request as private gentlemen, or as a constitutional organ of the Government. If as private gentlemen, the act would clearly be a nullity; the President would still be at liberty to comply with the request, or not, as he might think proper. If as a constitutional organ of the Government, where is the power given to the Senate? And what would be the remedy if he should refuse to comply? The Senate is the constitutional adviser of the President in the formation of treaties, and in the appointment of officers, &c. The constitution expressly declares that the President shall exercise these powers by and with the advice and consent of the Senate. Here, then, it is their right and their duty to advise him. But the constitution further says: "He shall take care that the laws be faithfully executed." Have the Senate any authority to advise him as to the faithful execution of the laws? They can go no further than they are expressly commissioned by the constitution. The specification of particular Executive powers, by the constitution, is a denial of all others. _Admissio unius est exclusio alterius_; and, as the constitution has given no power to this effect, it follows that no such power can be exercised by the Senate. If the courts have power to try the validity of laws of Congress, they can exercise that power as well without the authority of this resolution as with it. If they have not the power, neither this House nor the Legislature can give it them. The duties and the powers of the Supreme Court are defined by the constitution. Should the Senate, then, adopt the resolution, the Supreme Court would have no power to act under it, unless that power is given by the constitution. Let us, then, examine the authority of this court. The constitution says: "In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction." Will the gentlemen say that these judges are ambassadors, other public ministers or consuls, or that they are a state? If not, the Supreme Court can have no jurisdiction of the case, and the committee have imposed upon the Senate a resolution which they had no authority to submit. As to the law of the last session, by which these judges had been deprived of their offices, Mr. W. had no fear that the Supreme Court, or any body else would attempt to set it aside. The whole nation has approved the measure, as many of those who opposed it have fatally experienced. The question on agreeing to the resolution was now taken, and determined in the negative--yeas 13, nays 15, as follows: YEAS.--Messrs. Dayton, Dwight, Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Plumer, Ross, Tracy, Wells, and White. NAYS.--Messrs. Anderson, Baldwin, Bradley, Breckenridge, Brown, Clinton, Cocke, Ellery, T. Foster, Jackson, Logan, Nicholas, Stone, Sumter, and Wright. _Ordered_, That the memorialists have leave to withdraw their memorial. MONDAY, February 14. _The Mississippi Question._ After the Senate had finished its deliberations upon the Legislative business before it-- Mr. Ross rose and said, that although he came from a part of the country where the late events upon the Mississippi had excited great alarm and solicitude, he had hitherto forborne the expression of his sentiments, or to bring forward any measure relative to the unjustifiable, oppressive conduct of the officers of the Spanish Government at New Orleans. He had waited thus long in the hope that some person, more likely than himself to conciliate and unite the opinions of a majority of the Senate, would have offered efficacious measures for their consideration; but, seeing the session now drawing to a close, without any such proposition, he could not reconcile a longer silence either to his own sense of propriety or to the duty he owed to his constituents. He would not consent to go home without making one effort, however feeble or unsuccessful, to avert the calamity which threatened the Western country. Present appearances, he confessed, but little justified the hope that any thing he might propose would be adopted, yet it would at least afford him some consolation, hereafter, that he had done his duty, when the storm was approaching, by warning those who had power in their hands of the means which ought to be employed to resist it. He was fully aware that the Executive of the United States had acted; that he had sent an Envoy Extraordinary to Europe. This was the peculiar province, and perhaps the duty of the President. He would not say that it was unwise in this state of our affairs to prepare for remonstrance and negotiation, much less was he then about to propose any measure that would thwart negotiation, or embarrass the President. On the other hand, he was convinced that more than negotiation was absolutely necessary, that more power and more means ought to be given to the President, in order to render his negotiations efficacious. Could the President proceed further, even if he thought more vigorous measures proper and expedient? Was it in his power to repel and punish the indignity put upon the nation? Could he use the public force to redress our wrongs? Certainly not. This must be the act of Congress. They are now to judge of ulterior measures; they must give the power, and vote the means to vindicate, in a becoming manner, the wounded honor and the best interests of the country. Mr. R. said, he held in his hands certain resolutions for that purpose, and, before he offered them to the Senate, he would fully explain his reasons for bringing them forward and pressing them with earnestness, as the best system the United States could now pursue. It was certainly unnecessary to waste the time of that body in stating that we had a solemn explicit treaty with Spain; that this treaty had been wantonly and unprovokedly violated, not only in what related to the Mississippi, but by the most flagrant, destructive spoliations of our commerce, on every part of the ocean, where Spanish armed vessels met the American flag. These spoliations were of immense magnitude, and demanded the most serious notice of our Government. They had been followed by an indignity and a direct infraction of our treaty relative to the Mississippi, which bore an aspect not to be dissembled or mistaken. To the free navigation of that river we had an undoubted right from nature, and from the position of our Western country. This right, and the right of deposit in the island of New Orleans, had been solemnly acknowledged and fixed by treaty in 1795. That treaty had been in actual operation and execution for many years; and now, without any pretence of abuse or violation on our part, the officers of the Spanish Government deny the right, refuse the place of deposit, and add the most offensive of all insults, by forbidding us from landing on any part of their territory, and shutting us out as a common nuisance. By whom has this outrage been offered? By those who have constantly acknowledged our right, and now tell us that they are no longer owners of the country! They have given it away, and, because they have no longer a right themselves, therefore, they turn us out, who have an undoubted right! Such an insult, such unprovoked malignity of conduct, no nation but this would affect to mistake. And yet we not only hesitate as to the course which interest and honor call us to pursue, but we bear it with patience, tameness, and apparent unconcern. Sir, said Mr. R., whom does this infraction of the treaty and the natural rights of this country most intimately affect? If the wound inflicted on national honor be not sensibly felt by the whole nation, is there not a large portion of your citizens exposed to immediate ruin by a continuance of this state of things? The calamity lights upon all those who live upon the Western waters. More than half a million of your citizens are by this cut off from a market. What would be the language, what would be the feelings of gentlemen in this House, were such an indignity offered on the Atlantic coast? What would they say if the Chesapeake, the Delaware, or the Bay of New York were shut up, and all egress prohibited by a foreign power? And yet none of these waters embrace the interests of so many as the Mississippi. The numbers and the property affected by shutting this river, are greater than any thing that could follow by the blockade of a river on the Atlantic coast. Every part of the Union was equally entitled to protection, and no good reason could be offered why one part should be less attended to than another. Fortunately for this country, there could be no doubt in the present case; our national right had been acknowledged, and solemnly secured by treaty. The treaty had been long in a state of execution. It was violated and denied without provocation or apology. The treaty then was no security. This evident right was one, the security of which ought not to be precarious: it was indispensable that the enjoyment of it should be placed beyond all doubt. He declared it therefore to be his firm and mature opinion, that so important a right would never be secure, while the mouth of the Mississippi was exclusively in the hands of the Spaniards. Caprice and enmity occasion constant interruption. From the very position of our country, from its geographical shape, from motives of complete independence, the command of the navigation of the river ought to be in our hands. We are now wantonly provoked to take it. Hostility in its most offensive shape has been offered by those who disclaim all right to the soil and the sovereignty of that country--a hostility fatal to the happiness of the Western world. Why not seize then what is so essential to us as a nation? Why not expel the wrongdoers?--wrongdoers by their own confession, to whom by a seizure we are doing no injury. Paper contracts, or treaties, have proved too feeble. Plant yourselves on the river, fortify the banks, invite those who have an interest at stake to defend it: do justice to yourselves when your adversaries deny it; and leave the event to Him who controls the fate of nations. Why submit to a tardy, uncertain negotiation, as the only means of regaining what you have lost: a negotiation with those who have wronged you; with those who declare they have no right, at the moment they deprive you of yours? When in possession, you will negotiate with more advantage. You will then be in the condition to keep others out. You will be in the actual exercise of jurisdiction over all your claims; your people will have the benefits of a lawful commerce. When your determination is known, you will make an easy and an honorable accommodation with any other claimant. The present possessors have no pretence to complain, for they have no right to the country by their own confession. The Western people will discover that you are making every effort they could desire for their protection. They will ardently support you in the contest, if a contest becomes necessary. Their all will be at stake, and neither their zeal nor their courage need be doubted. Suppose that this course be not now pursued. Let me warn gentlemen how they trifle with the feelings, the hopes, and the fears of such a body of men, who inhabit the Western waters. Let every honorable man put the question to himself; how would half a million round him be affected by such a calamity, and no prompt measures taken by the Government to redress it? These men have arms in their hands; the same arms with which they proved victorious over their savage neighbors. They have a daring spirit; they have ample means of subsistence; and they have men disposed to lead them on to revenge their wrongs. Are you certain that they will wait the end of negotiation? When they hear that nothing has been done for their immediate relief, they will probably take their resolution and act. Indeed, from all we have heard, there is great reason to believe that they will, or that they may have already taken that resolution. They know the nature of the obstruction, they know the weakness of the country; they are sure of present success, and they have a bold river to bear them forward to the place of action. They only want a leader to conduct them, and it would be strange, if with such means and such a spirit, a leader should not soon present himself. Suppose they do go, and do chase away the present oppressors, and that in the end they are overpowered and defeated by a stronger foe than the present feeble possessors. They will never return to you, for you cannot protect them. They will make the best compromise they can with the power commanding the mouth of the river, who, in effect, has thereby the command of their fortunes. Will such a bargain be of light or trivial moment to the Atlantic States. Buonaparte will then say to you, my French West India colonies, and those of my allies, can be supplied from my colony of Louisiana, with flour, pork, beef, lumber, and any other necessary. These articles can be carried by my own ships, navigated by my own sailors. If you, on the Atlantic coast, wish to trade with my colonies in those articles, you must pay fifteen or twenty per cent, of an impost. We want no further supplies from you, and revenue to France must be the condition of all future intercourse. What will you say to this? It will be vain to address your Western brethren, and complain your commerce is ruined, your revenue dwindles, and your condition is desperate. They will reply that you came not to their assistance in the only moment you could have saved them; that you balanced between national honor and sordid interest, and suffered them to be borne down and subdued, at a time when for a trifle you could have secured the Mississippi; that now their interest must be consulted, and it forbade any assistance to you, when following in the same train of ruin which overwhelmed them. If the evil does not immediately proceed the full length of disunion, yet the strength, the unity of exertion, the union of interest will be gone. We are no longer one people, and representatives from that part of the country in our public councils, will partake of the spirit and breathe the sentiments of a distinct nation; they will rob you of your public lands; they will not submit to taxes; they will form a girdle round the Southern States, which may be denominated a foreign yoke, and render the situation of that country very precarious as to its peace and past connections. Indeed, every aspect of such a state of things is gloomy and alarming to men who take the trouble of reflecting upon it. Where is the nation, ancient or modern, that has borne such treatment without resentment of resistance? Where is the nation that will respect another that is passive under such humiliating degradation and disgrace? Your outlet to market closed, next they will trample you under foot upon your own territory which borders upon theirs! Yet you will not stir, you will not arm a single man; you will negotiate! Negotiation alone, under such circumstances, must be hopeless. No. Go forward, remove the aggressors, clear away the obstructions, restore your possession with your own hand, and use your sword if resistance be offered. Call upon those who are most injured, to redress themselves; you have only to give the call, you have men enough near to the scene, without sending a man from this side the mountains; force sufficient, and more than sufficient, for a prompt execution of your orders. If money be an object, one half of the money which would be consumed and lost by delay and negotiation, would put you in possession; then you may negotiate whether you shall abandon it and go out again. I say, also, let us go and redress ourselves; you will have the whole nation with you. On no question since the Declaration of Independence, has the nation been so unanimous as upon this. We have at different times suffered great indignity and outrages from different European Powers; but none so palpable, so inexcusable, so provoking, or of such magnitude in their consequences, as this. Upon none has public opinion united so generally as this. It is true we have a lamentable division of political opinion among us, which has produced much mischief, and may produce much greater than any we have yet felt. On this question, party spirit ought to sink and disappear. My opinions are well known, and are not likely to change; but I candidly, and with all possible sincerity, declare my conviction to be clear, that there will not be a dissenting voice in the Western country if this course be taken; that so far as my own abilities go, they shall be exerted to the utmost to support it; and I know that my friends on this floor with whom I have long thought and acted, have too high a regard for the national honor, and the best interests of their country, to hesitate a moment giving the same pledge of their honest determination to support and render these measures effectual, if taken: call them ours, if you please, we take the responsibility, and leave the execution of them with you. For, as to myself or my friends, no agency is wished, except that of uniting with you in rousing the spirit, and calling out the resources of the country, to protect itself against serious aggression, and the total subjection and loss of the Western country. Mr. R. then read his resolutions, which are as follows: "_Resolved_, That the United States have an indisputable right to the free navigation of the river Mississippi, and to a convenient place of deposit for their produce and merchandise in the island of New Orleans. "That the late infraction of such their unquestionable right, is an aggression hostile to their honor and interest. "That it does not consist with the dignity or safety of this Union to hold a right so important by a tenure so uncertain. "That it materially concerns such of the American citizens as dwell on the Western waters, and is essential to the union, strength, and prosperity of these States, that they obtain complete security for the full and peaceable enjoyment of such their absolute right. "That the President be authorized to take immediate possession of such place or places, in the said island, or the adjacent territories, as he may deem fit and convenient for the purposes aforesaid; and to adopt such other measures for obtaining that complete security as to him in his wisdom shall seem meet. "That he be authorized to call into actual service any number of the militia of the States of South Carolina, Georgia, Ohio, Kentucky, Tennessee, or of the Mississippi Territory, which he may think proper, not exceeding fifty thousand, and to employ them, together with the military and naval forces of the Union, for effecting the objects above mentioned. "That the sum of five millions of dollars be appropriated to the carrying into effect the foregoing resolutions, and that the whole or any part of that sum be paid or applied, on warrants drawn in pursuance of such directions as the President may, from time to time, think proper to give to the Secretary of the Treasury."[69] MONDAY, February 21. The VICE PRESIDENT communicated the credentials of THEODORUS BAILEY, appointed a Senator by the State of New York, to take his seat after the third day of March next; which were read, and ordered to lie on file. TUESDAY, February 22. _Purchase of Louisiana._ In Executive session, the bill, entitled "An act making further provision for the expenses attending the intercourse between the United States and foreign nations," was read the third time. On the question, Shall this bill pass? it was determined in the affirmative--yeas 14, nays 12, as follows: YEAS.--Messrs. Anderson, Baldwin, Bradley, Breckenridge, Clinton, Cocke, Ellery, T. Foster, Jackson, Logan, S. T. Mason, Nicholas, Sumter, and Wright. NAYS.--Messrs. Dayton, D. Foster, Hillhouse, Howard, J. Mason, Morris, Olcott, Plumer, Ross, Stone, Wells and White. So it was _Resolved_, That this bill pass.[70] WEDNESDAY, February 23. _Mississippi Question._ Mr. WHITE, of Delaware, rose and addressed the Chair as follows: Mr. President, on this subject, which has on a former day been discussed with so much ability, and with so much eloquence, by my friend from Pennsylvania, the honorable mover of the resolutions, I shall submit the few observations that I may make, in as concise a manner as I am capable of; for it is very far from my wish to occupy the time or attention of the Senate unnecessarily. The resolutions on your table I approve of in their full extent; I believe they express the firm and manly tone that at this moment is especially becoming the dignity of the Government to assume; I believe they mark out a system of measures, which, if promptly pursued, will be honorable to the nation, and equal to the accomplishment of the important object which gentlemen on all sides seem to have in view. These alone, with me, would be sufficient inducements to yield them my feeble support; but in addition to these, and to the thorough conviction of my own mind as to the course I ought to pursue, I have the happiness of being supported in my opinions on this subject by the unequivocal expression of the sentiment of the State to which I have the honor to belong. It was early seen, Mr. President, and required but little penetration to discover, that adventurers emigrating beyond the mountains, and settling on the Western waters, must possess the free navigation of the Mississippi, it being their only outlet to the ocean. This important privilege it became necessary on the part of the Government of the United States to secure by treaty, and not leave to the capricious will of whatever nation who might in future hold the territory at the mouth of the river. Accordingly, in the 4th and 23d articles of our Treaty with Spain, I find on this subject the following stipulation: "ART. 4. It is likewise agreed that the western boundary of the United States, which separates them from the Spanish colony of Louisiana, is in the middle of the channel or bed of the river Mississippi, from the northern boundary of the said States to the completion of the 31st degree of latitude north of the equator. And His Catholic Majesty has likewise agreed that the navigation of the said river, in its whole breadth from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention." "ART. 22. The two high contracting parties, hoping that the good correspondence and friendship which happily reigns between them will be further increased by this treaty, and that it will contribute to augment their prosperity and opulence, will in future give to their mutual commerce all the extension and favor which the advantages of both countries may require. "And in consequence of the stipulations contained in the 4th article, His Majesty will permit the citizens of the United States, for the space of three years from this time, to deposit their merchandise and effects in the port of New Orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores; and His Majesty promises either to continue this permission, if he finds, during that time, that it is not prejudicial to the interests of Spain, or if he should not agree to continue it there, he will assign to them, on another part of the banks of the Mississippi, an equivalent establishment." This instrument, Mr. President, it is known, for a time, quieted the fears and jealousies of our Western brethren; they supposed it had removed for ever the possibility of any future embarrassment to their commerce on those waters. And after it had been proclaimed as the law of the land--after it had been ratified by both nations, and become obligatory upon the faith and honor of each, who could have thought otherwise? Yet, sir, it has happened otherwise. This place of deposit at New Orleans, secured to our citizens by the article last read, has been recently wrested from their hands by the authority of the Spanish Government, and no other equivalent one assigned, where, after more than two thousand miles of boat navigation, they may disembark their produce in order to be shipped for sea; and without this advantage the navigation of the river is to them but an empty name. I have said, by the authority of the Spanish Government, it has indeed been given out to the world, for reasons that every man may conjecture, and are unnecessary to be mentioned, that this was not the act of the Government, but the rash measure of a single officer--the Intendant General of the Spanish provinces; that the Spanish Minister had issued orders for the speedy adjustment of these difficulties; had kindly offered to throw himself into the breach to prevent this Intendant General from going to extremities with the Government of the United States. Sir, gentlemen may find, when too late, that this is a mere piece of diplomatic policy, intended only to amuse them; and to say nothing of the humiliating idea of resorting to such a plaster for the wound that has been inflicted upon our national honor, if they had taken the trouble, they might have been informed that the Spanish Minister near this Government has no control at New Orleans; that the Intendant General is, like himself, an immediate officer of the Crown, and responsible only to the Crown for his conduct. If the Spanish Minister has interfered, which I am not disposed to question, to make the best of it, it could only have been by the entreaties of men in power, as a mere mediator, to beg of the Intendant General of New Orleans justice and peace on behalf of the people of the United States. Are honorable gentlemen prepared to accept peace on such terms? They might do, sir, for a tribe of starving Indians; but is this the rank that we are to hold among the nations of the world? And it seems that even these supplicating advances are likely to avail us nothing. By accounts very lately received from New Orleans, by a private letter which I have seen since these resolutions were submitted to the Senate, the Intendant General has expressed much displeasure at the interference of the Spanish Minister, stating that it was not within his duty or his province, and that he, the Intendant, acted not under Spanish but French orders. As to the closing of the port of New Orleans against our citizens, the man who can now doubt, after viewing all the accompanying circumstances, that it was the deliberate act of the Spanish or French Government, must have locked up his mind against truth and conviction, and be determined to discredit even the evidence of his own senses. But, sir, it is not only the depriving us of our right of deposit by which we have been aggrieved, it is by a system of measures pursued antecedent and subsequent to that event, equally hostile and even more insulting. I have in my hand a paper, signed by a Spanish officer, which, with the indulgence of the Chair, I will read to the Senate: ADVERTISEMENT.--Under date of the 16th instant, (December,) the Intendant General of these provinces tells me that the citizens of the United States of America can have no commerce with His Majesty's subjects--they only having the free navigation of the river for the exportation of the fruits and produce of their establishments to foreign countries, and the importation of what they may want from them. As such I charge you, so far as respects you, to be zealous and vigilant, with particular care, that the inhabitants neither purchase nor sell any thing to the shipping, flat-bottomed boats, barges, or any other smaller vessels that may go along the river, destined for the American possessions, or proceeding from them, that they shall be informed of it, for their due compliance of the same. CARLOS DE GRANDPRE. BATON ROUGE, _Dec. 22, 1802_. These are the measures, Mr. President, that have been adopted; these are the orders that have been issued by the Intendant General to every district of the Spanish provinces, prohibiting the subjects of His Catholic Majesty from having any commerce, dealing, intercourse, or communion whatsoever with the citizens of the United States; excluding us from their shores for the distance of two hundred and seventy miles; treating us like a nation of pirates, or a banditti of robbers, who they feared to trust in their country. And this day, sir, if a vessel belonging to a citizen of the United States, engaged in a fair and legal trade, was upon the waters of the Mississippi, within the Spanish lines, and in a state of the most extreme distress, the Spaniard who should yield her aid or comfort would do it at the peril of his life. If it should be said, sir, that this important question will not long be an affair of controversy between the United States and Spain; that Louisiana, New Orleans, and this usurped claim of the Spanish Government to the exclusive navigation of the Mississippi, will soon be found in other hands; that whenever we may have to negotiate on this subject, either in the cabinet or the field, it will not be with His Catholic Majesty, but with the First Consul; not with a King, but with the King of Kings--I answer that in these insults to our national dignity, we at present know no power but Spain. Whatever agency Buonaparte may have had in this business, he has been concealed from our view. It is Spain that has violated her plighted faith; it is Spain that has trampled upon the dearest interests of the United States, and insulted our Government to our faces without the semblance of a cause, and she alone is responsible to us for these outrages. And, under such circumstances, is it becoming, politic, or honorable in us to treat her as a friend and as a neighbor; to remonstrate with her on her acts of injustice, and wait till she shall add insult to insult, and heap injury upon injury; or what is perhaps even worse, if any thing worse than national degradation can befall an independent people, till this golden opportunity shall have passed away, and the facility of redress be wrested from our hands? No, sir, we should now view her as our open enemy, as having declared war against us, and do justice to ourselves. We can never have permanent peace on our Western waters, till we possess ourselves of New Orleans, and such other positions as may be necessary to give us the complete and absolute command of the navigation of the Mississippi. We have now such an opportunity of accomplishing this important object as may not be presented again in centuries, and every justification that could be wished for availing ourselves of the opportunity. Spain has dared us to the trial, and now bids us defiance; she is yet in possession of that country: it is at this moment within your reach and within your power; it offers a sure and easy conquest; we should have to encounter there now only a weak, inactive, and unenterprising people; but how may a few months vary this scene, and darken our prospects! Though not officially informed we know that the Spanish provinces on the Mississippi have been ceded to the French, and that they will as soon as possible take possession of them. What may we then expect? When in the last extremity we shall be driven to arms in defence of our indisputable rights, where now slumbers on his post with folded arms the sluggish Spaniard, we shall be hailed by the vigilant and alert French grenadier, and in the defenceless garrison that would now surrender at our approach, we shall see unfurled the standards that have waved triumphant in Italy, surrounded by impregnable ramparts, and defended by the disciplined veterans of Egypt. But, Mr. President, what is more than all to be dreaded, in such hands, it may be made the means of access and corruption to your national councils and a key to your Treasury. Your Western people will see in Buonaparte, at their very doors, a powerful friend or a dangerous enemy; and should he, after obtaining complete control over the navigation of the Mississippi, approach them, not in the menacing attitude of an enemy, but under the specious garb of a protector and a friend; should he, instead of embarrassing their commerce by any fiscal arrangements, invite them to the free navigation of the river, and give them privileges in trade not heretofore enjoyed; should he, instead of attempting to coerce them to his measures, contrary to their wishes, send missionaries into their country to court and intrigue with them, he may seduce their affections, and thus accomplish by address and cunning, what even his force might not be equal to. In this way, having operated upon their passions, having enlisted in his service their hopes and their fears, he may gain an undue ascendency over them. Should these things be effected, which God forbid--but Buonaparte in a few years has done much more--what, let me ask honorable gentlemen, will be the consequences? I fear even to look them in the face. The degraded countries of Europe, that have been enslaved by the divisions and distractions of their councils, produced by similar means, afford us melancholy examples. Foreign influence will gain admittance to your national councils; the First Consul, or his interests, will be represented in the Congress of the United States; this floor may become the theatre of sedition and intrigue. You will have a French faction in the Government, and that faction will increase, with the rapidly increasing population of the Western world. Whenever this period shall arrive, it will be the crisis of American glory, and must result, either in the political subjugation of the Atlantic States, or in their separation from the Western country; and I am sure there is no American who does not view as one of the greatest evils that could befall us, the dismemberment of this Union. Honorable gentlemen may wrap themselves up in their present imaginary security, and say that these things are afar off, or that they can never happen; but let me beseech of them to look well to the measures they are now pursuing, for, on the wisdom, the promptness, and energy of those measures, will depend whether they shall happen or not. And let me tell them, sir, that the want of firmness or judgment in the cabinet, will be no apology for the disgrace and ruin of the nation. Mr. BRECKENRIDGE observed, that he did not mean to wander in the field of declamation, nor, after the example of the honorable gentleman who had preceded him, endeavor to alarm or agitate the public mind; that he should endeavor to strip the subject of all improper coloring, and examine dispassionately the propriety of the measures which the Senate were called upon to sanction. He would be very brief. What is the true and undisguised state of facts? Early in the session, the House of Representatives were informed, by a communication from the President, of the conduct of the Intendant at New Orleans. This communication stated, that he had taken measures to attempt a restoration of the right which had been violated; and that there were reasons to believe that the conduct of the Intendant was unauthorized by the Court of Spain. Accompanying this message were official papers, in which it appeared that the Governor of New Orleans had strongly opposed the conduct of the Intendant, declared that he was acting without authority in refusing the deposit, and indicated a disposition to oppose openly the proceeding. The Spanish Minister who resides here, also interposed on the occasion, and who stands deservedly high in the confidence of his Government, was clearly of opinion, that the Intendant was acting without authority, and that redress would be given so soon as the competent authority could interpose. From this state of things, and which is the actual state at this moment, what is the course any civilized nation who respects her character or rights, would pursue? There is but one course, which is admitted by writers on the laws of nations, as the proper one; and is thus described by _Vattel_, in his book, sec. 336, 338: "A sovereign ought to show, in all his quarrels, a sincere desire of rendering justice and preserving peace. He is obliged before he takes up arms, and after having taken them up also, to offer equitable conditions, and then alone his arms become just against an obstinate enemy, who refuses to listen to justice or to equity. His own advantage, and that of human society, oblige him to attempt, before he takes up arms, all the pacific methods of obtaining either the reparation of the injury, or a just satisfaction. This moderation, this circumspection, is so much the more proper, and commonly even indispensable, as the action we take for an injury does not always proceed from a design to offend us, and is sometimes a mistake rather than an act of malice: frequently it even happens, that the injury is done by inferior persons, without their sovereign having any share in it; and on these occasions, it is not natural to presume that he would refuse us a just satisfaction." This is the course which the President has taken, and in which the House of Representatives have expressed, by their resolution, their confidence. What are the reasons urged by the gentlemen to induce a different proceeding, an immediate appeal to arms? You prostrate, say the gentlemen, your national honor by negotiating, where there is a direct violation of a treaty! How happens it that our national honor has, at this particular crisis, become so delicate, and that the feelings of certain gentlemen are now so alive to it? Has it been the practice of this Government heretofore to break lances on the spot with any nation who injured or insulted her? Or has not the invariable course been to seek reparation in the first place by negotiation? I ask for an example to the contrary; even under the Administration of WASHINGTON, so much eulogized by the gentleman last up. Were not the Detroit, and several other forts within our territory, held ten or a dozen years by Great Britain, in direct violation of a treaty? Were not wanton spoliations committed on your commerce by Great Britain, by France, and by Spain, to the amount of very many millions; and all adjusted through the medium of negotiations? Were not your merchants plundered, and your citizens doomed to slavery by Algiers, and still those in power, even WASHINGTON himself, submitted to negotiation, to ransom, and to tribute? Why then do gentlemen, who on those occasions approved of these measures, now despair of negotiation? America has been uniformly successful, at least in settling her differences by treaty. But the gentleman is afraid that if we do not immediately seize the country, we shall lose the golden opportunity of doing it. Would your national honor be free from imputation by a conduct of such inconsistency and duplicity? A minister is sent to the offending nation with an olive-branch, for the purpose of an amicable discussion and settlement of differences, and before he has scarcely turned his back, we invade the territories of that nation with an army of fifty thousand men! Would such conduct comport with the genius and principles of our Republic, whose true interest is peace, and who has hitherto professed to cultivate it with all nations? Would not such a procedure subject us to the just censure of the world, and to the strongest jealousy of those who have possessions near to us? Would such a procedure meet the approbation of even our own citizens, whose lives and fortunes would be risked in the conflict? And would it not be policy inexcusably rash, to plunge this country into war, to effect that which the President not only thinks can be effected, but is now actually in a train of negotiation? If, on the other hand, negotiation should fail, how different will be the ground on which we stand! We stand acquitted by the world, and what is of more consequence, by our own citizens, and our own consciences. But one sentiment will then animate and pervade the whole, and from thenceforth we will take counsel only from our courage. But to induce us to depart from this proper, this safe, and honorable course of proceeding, which is pursuing by the President, the gentleman from Pennsylvania first, and the gentleman from Delaware again told you, that by such pacific measures you will irritate the Western people against you; that they will not be restrained by you, but will either invade the country themselves, or withdraw from the Union and unite with those who will give them what they want. Sir, said Mr. B., I did not expect to hear such language held on this floor. Sir, the gentleman from Pennsylvania best knows the temper and views of the Western people he represents, but if he meant to extend the imputation to the State I have the honor to represent, I utterly disclaim it. The citizens of Kentucky value too highly their rights and character to endanger the one or dishonor the other. They deal not, sir, in insurrections. They hold in too sacred regard their federal compact to sport with it. They were among the first to oppose violations of it, and will, I trust, be the last to attempt its dissolution. The time indeed was, when not only irritation but disgust prevailed in that country; when, instead of sending fifty thousand men to seize on Orleans, an attempt was meditated, and a solemn vote taken in Congress to barter away this right for twenty-five years. The time indeed was, when great dissatisfaction prevailed in that country, as to the measures of the General Government; but it never furnished there, whatever it might have done elsewhere, even the germs for treasons or insurrections. The people I have the honor to represent are not accustomed to procure redress in this way. Instead of trampling on the constitution of their country, they rally round it as the rock of their safety. But, unhappily, these times have passed away. Distrust and dissatisfaction have given place to confidence in, and attachment to those in whom the concerns of the nation are confided. I ask no reliance on my opinion for this fact, but appeal to the memorial of the Legislature of Kentucky to the present Congress, for the truth of this assertion. In this disposition of mind, therefore, and from the sound sense and correct views and discernment of their true interest, which the people of Kentucky possess, I have no hesitation in pledging myself, that no such precipitate and unwarranted measures will be taken by them, as predicted by the gentlemen in the opposition. But he begged leave to ask gentlemen who hold such language, would the Western people, admitting they were to withdraw from the Union, be able to accomplish the object? Could they alone go to war with France and Spain? Could they hold Orleans, were they to take possession of it, without the aid of the United States? Admitting they could hold it, what security would they have for their commerce? A single ship of the line would be able completely to blockade that port. See, also, the Havana, one of the safest and strongest of the Spanish ports, and so situated as to possess every advantage in annoying our commerce. Are the gentlemen, therefore, really serious when they endeavor to persuade us that the Western people are in such a state of fury and mad impatience that they will not wait even a few months to see the fate of a negotiation, and, if unsuccessful, receive the aid of the whole nation, but that they will madly run to the attack without a ship, without a single cannon, without magazines, without money or preparation of any kind; and, what is worse, without union among themselves; and what is still worse, in face of the laws and constitution of their country? It is impossible. Such a desperate project could not come to a successful issue; for should they even obtain the right by their own exertions alone, they could not expect long to enjoy it in peace, without descending from that exalted, that enviable rank of one of the independent States of United America, to the degraded, dependent condition of a colonial department of a foreign nation. Although he thought it incumbent on us, for the reasons he had stated, to try the effect of negotiation, yet, should that fail, he thought it incumbent on us also to be prepared for another resort. He considered this right, and upon a different footing from what we ever enjoyed it, so all-important, so indispensable to the very existence of the Western States, that it was a waste of words and time to attempt to portray the evils which a privation of it would produce; and he rejoiced to find that gentlemen with whom he had not been in the habit of voting on most political subjects so perfectly accord with him, that our precarious tenure of it must be changed. He hoped they were sincere in their declarations. If they were, the only difference between us now is, what are the proper means to obtain this great end? The course pursued by the President was, in his opinion, the only true and dignified course. It is that, and that only, which will certainly attain the object; and is the only one which will tend to unite cordially all parts of the Union. But we ought to be prepared, in case of a failure, instantly to redress ourselves. This, instead of having an evil, would, in his opinion, have a good effect on the negotiation. It would show, that although we are willing amicably to adjust our differences, yet that we are not only resolved on, but prepared for that resort which cannot fail to restore our violated rights. With that view, he would offer the following resolutions, as substitutes for those proposed by the gentleman from Pennsylvania. He moved that the whole of the resolutions be struck out, excepting the word "_Resolved_," and the following be substituted in their place--after the word "_Resolved_:" "That the President of the United States be, and he is hereby authorized, whenever he shall judge it expedient, to require of the Executives of the several States to take effectual measures to organize, arm, and equip, according to law, and hold in readiness to march at a moment's warning, eighty thousand effective militia, officers included. _Resolved_, "That the President may, if he judges it expedient, authorize the Executives of the several States, to accept, as part of the detachment aforesaid, any corps of volunteers; who shall continue in service for such time, not exceeding ---- months, and perform such services as shall be prescribed by law. _Resolved_, "That ---- dollars be appropriated for paying and subsisting such part of the troops aforesaid, whose actual service may be wanted, and for defraying such other expenses as, during the recess of Congress, the President may deem necessary for the security of the territory of the United States. _Resolved_, "That ---- dollars be appropriated for erecting at such place or places on the Western waters, as the President may judge most proper, one or more arsenals." Mr. CLINTON.--The importance of a free navigation of the Mississippi has been duly appreciated by the Government, and a constant eye has been kept upon it in our negotiations with foreign powers. An attempt was, indeed, made under the Old Confederation to barter it away for twenty-five years, which, however, was effectually controlled by the good sense and patriotism of the Government. By the Treaty of Peace with Great Britain in 1783, by the Treaty of Amity, Commerce, and Navigation with her in 1794, and by the Treaty of Friendship, Limits, and Navigation with Spain, in 1795, the right of a free navigation of the Mississippi is recognized, and declared to exist from its source to the ocean, in the citizens of the United States. By the 22d article of the Treaty with Spain, it is declared that, "in consequence of the stipulations contained in the 4th article, his Catholic Majesty will permit the citizens of the United States, for the space of three years from this time, to deposit their merchandise and effects in the port of New Orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores. And his Majesty promises either to continue this permission if he finds during that time that it is not prejudicial to the interests of Spain; or, if he should not agree to continue it there, he will assign to them, on another part of the lands of the Mississippi, an equivalent establishment." The 22d article, granting the right of deposit, is, therefore, founded upon the 4th article recognizing the right of free navigation, and is intended to give full and complete efficacy to it. By a proclamation of the Intendant of the Province of Louisiana, dated the 16th of October last, the right of deposit is prohibited. The reason assigned for this daring interdiction is, that the three years for which it was granted having expired, it cannot be continued without an express order from the King of Spain; and at the same time no equivalent establishment is assigned, according to the stipulations of the Treaty. There can be no doubt but that the suspension of the right of deposit at New Orleans, and the assignment of another place equally convenient, ought to have been contemporaneous and concurrent; that the conduct of the Intendant is an atrocious infraction of the treaty, and that it aims a deadly blow at the prosperity of the Western States; but it is extremely questionable whether it was authorized by the Government of Spain or not. On this subject I am free to declare that I entertain great doubts, which can only be cleared up by the course of events, or perhaps it will be enveloped in darkness. On the one hand, the terms of the proclamation, indicating a misunderstanding of the treaty, the remonstrances of the Governor of the Province, whose authority does not extend to commercial and fiscal affairs, over which the Intendant has an exclusive control, and the prompt and decided assurances of the Spanish Minister near the United States, would induce a belief that the act of the Intendant was unauthorized. On the other hand, it cannot readily be believed that this officer would assume such an immense responsibility, and encounter an event so big with important consequences, not only to his country but to himself, without knowing explicitly the intentions of his Government. Such, then, is the true state of the Spanish aggression: an important right had been secured to our citizens by the solemnity of a treaty. This right had been withdrawn by an officer of the Spanish Government, and whether this aggression was directed by it or not, is not as yet known. Other aggressions have, indeed, been stated by the honorable gentleman from Pennsylvania, (Mr. ROSS,) in order to darken the picture, and with the manifest design of exasperating our feelings, inflaming our passions, and prompting an immediate appeal to the sword. As to the nature, character, and tendency of the remedy proposed, there can be but one opinion. It proposes to enter the country of a foreign nation with a hostile force, and to seize a part of its territory. It is not preceded by a formal declaration, and cannot, therefore, come under the denomination of a solemn war, but it partakes of the character of a war not solemn. It answers to the definition of war, by _Burlamaqui_, "a nation taking up arms with a view to decide a quarrel;" to that given by _Vattel_, who represents it to be "that state in which a nation prosecutes its right by force." A state of general hostilities would as necessarily follow as an effect would follow a cause; no nation would submit to the irruption of a hostile army without repelling it by force; the proud Castilian, as described by the gentleman from Delaware, would revolt at the insult; the door of negotiation would be effectually closed, and as the appeal would be to arms in the first instance, so the controversy must be finally decided by the preponderance of force. It would, therefore, not only have impressed me with a more favorable opinion of the honorable mover's candor, but also of his decision and energy as a statesman, if he had spoken out boldly, and declared his real object. War is unquestionably his design--his wish. Why, then, mask his proposition? Why combine it with considerations connected with negotiation? Why not furnish the American people at once with the real and the whole project of himself and his friends? If it is bottomed on patriotism and dictated by wisdom, it need not shrink from the touch of investigation--it will receive their approving voice, and be supported by all their force. The resolution is then to be considered as a war resolution; in no other light can it be viewed; in no other light ought it to be viewed; and in no other light will it be viewed by the intelligence of the country. In this point of view, I will proceed, said Mr. C., to consider its justice and policy; its conformity with the laws and usage of nations, and the substantial interests of this country. I shall not attempt to occupy your attention by threadbare declamation upon the evils of war, by painting the calamities it inflicts upon the happiness of individuals, and the prosperity of nations. This terrible scourge of mankind, worse than the famine or pestilence, ought not to be resorted to until every reasonable expedient has been adopted to avert it. When aggressions have been committed by the sovereign or representatives of a nation, negotiation ought in all cases to be first tried, unless the rights of self-defence demand a contrary course. This is the practice of nations, and is enjoined by the unerring monitor which the God of Nature has planted in every human bosom. What right have the rulers of nations to unsheath the sword of destruction, and to let loose the demon of desolation upon mankind, whenever caprice or pride, ambition or avarice, shall prescribe? And are there no fixed laws founded in the nature of things which ordain bounds to the fell spirit of revenge, the mad fury of domination, and the insatiable thirst of cupidity? Mankind have not only in their individual character, but in their collective capacity as nations, recognized and avowed in their opinions and actions, a system of laws calculated to produce the greatest happiness of the greatest number. And it may be safely asserted, that it is a fundamental article of this code, that a nation ought not to go to war, until it is evident that the injury committed is highly detrimental, and that it emanated from the will of the nation charged with the aggression, either by an express authorization in the first instance, or by a recognition of it when called upon for redress, and a refusal in both cases to give it. A demand of satisfaction ought to precede an appeal to arms, even when the injury is manifestly the act of the Sovereign; and when it is the act of a private individual, it is not imputable to his nation, until his Government is called upon to explain and redress, and refuses; because the evils of war are too heavy and serious to be incurred, without the most urgent necessity; because remonstrance and negotiation have often recalled an offending nation to a sense of justice, and a performance of right; because nations, like individuals, have their paroxysms of passion, and when reflection and reason resume their dominion, will extend that redress to the olive-branch, which their pride will not permit them to grant to the sword; because a nation is a moral person, and, as such, is not chargeable with an offence committed by others, or where its will has not been consulted, the unauthorized conduct of individuals being never considered a just ground of hostility, until their sovereign refuses that reparation for which his right of controlling their actions, and of punishing their misconduct, necessarily renders him responsible. These opinions are sanctioned by the most approved elementary writers on the laws of nations. If I were called upon to prescribe a course of policy most important for this country to pursue, it would be to avoid European connections and wars. The time must arrive when we will have to contend with some of the great powers of Europe, but let that period be put off as long as possible. It is our interest and our duty to cultivate peace, with sincerity and good faith. As a young nation, pursuing industry in every channel, and adventuring commerce in every sea, it is highly important that we should not only have a pacific character, but that we should really deserve it. If we manifest an unwarrantable ambition, and a rage for conquest, we unite all the great powers of Europe against us. The security of all the European possessions in our vicinity will eternally depend, not upon their strength, but upon our moderation and justice. Look at the Canadas--at the Spanish territories to the South--at the British, Spanish, French, Danish, and Dutch West India islands--at the vast countries to the West, as far as where the Pacific rolls its waves; consider well the eventful consequences that would result if we were possessed by a spirit of conquest; consider well the impression which a manifestation of that spirit will make upon those who would be affected by it. If we are to rush at once into the territory of a neighboring nation, with fire and sword, for the misconduct of a subordinate officer, will not our national character be greatly injured? Will we not be classed with the robbers and destroyers of mankind? Will not the nations of Europe perceive in this conduct the germ of a lofty spirit and an enterprising ambition which will level them to the earth, when age has matured our strength and expanded our powers of annoyance, unless they combine to cripple us in our infancy? May not the consequences be, that we must look out for a naval force to protect our commerce; that a close alliance will result; that we will be thrown at once into the ocean of European politics, where every wave that rolls, and every wind that blows, will agitate our bark? Is this a desirable state of things? Will the people of this country be seduced into it by all the colorings of rhetoric, and all the arts of sophistry--by vehement appeals to their pride, and artful addresses to their cupidity? No, sir. Three-fourths of the American people (I assert it boldly, and without fear of contradiction) are opposed to this measure. And would you take up arms with a millstone hanging around your neck? How would you bear up, not only against the force of the enemy, but against the irresistible current of public opinion? The thing, sir, is impossible; the measure is worse than madness; it is wicked beyond the powers of description. It is in vain for the mover to oppose these weighty considerations by menacing us with an insurrection in the Western States, that may eventuate in their seizure of New Orleans without the authority of Government; their throwing themselves into the arms of a foreign power; or in a dissolution of the Union. Such threats are doubly improper--improper as they respect the persons to whom they are addressed, because we are not to be deterred from the performance of our duty by menaces of any kind, from whatever quarter they may proceed; and it is no less improper to represent our Western brethren as a lawless, unprincipled banditti, who would at once release themselves from the wholesome restraints of law and order; forego the sweets of liberty, and either renounce the blessings of self-government, or, like Goths and Vandals, pour down with the irresistible force of a torrent upon the countries below, and carry havoc and desolation in their train. A separation by a mountain, and a different outlet into the Atlantic, cannot create any natural collision between the Atlantic and Western States; on the contrary, they are bound together by a community of interests, and a similarity of language and manners--by the ties of consanguinity and friendship, and a sameness of principles. There is no reflecting and well-principled man in this country who can view the severance of the States without horror, and who does not consider it as a Pandora's box, which will overwhelm us with every calamity; and it has struck me with not a little astonishment that, on the agitation of almost every great political question, we should be menaced with this evil. Last session, when a bill repealing a Judiciary act was under consideration, we were told that the Eastern States would withdraw themselves from the Union, if it should obtain; and we are now informed that, if we do not accede to the proposition before us, the Western States will hoist the standard of revolt and dismember the empire. Sir, these threats are calculated to produce the evils they predict, and they may possibly approximate the spirit they pretend to warn us against. They are at all times unnecessary, at all times improper, at all times mischievous, and ought never to be mentioned within these walls. Mr. J. JACKSON, of Georgia.--Coming from a State, at the extreme of the Union in the South, and excepting the States immediately interested in the navigation of the Mississippi, the most concerned, on the present occasion, of any in the Union, he hoped it would not be deemed improper in him to offer his sentiments on the resolution before the Senate; for, sir, no event can affect the settlers on the Mississippi, no change of masters can take place there, without the shock being felt on the frontiers of Georgia. The nation which holds New Orleans must eventually possess the Floridas, and Georgia cannot remain an indifferent spectator; in case of war, the blow struck on that river will be vibrated on the Saint Mary's, and the attack on the one will be seconded by an attack on the other. The gentlemen from Kentucky and Tennessee have not those fears expressed by the gentleman from Pennsylvania; they have declared their citizens satisfied with negotiation in the first place, and the conduct pursued by the Executive. He could say the same, as respects the citizens of the State he represents, and begged leave to read a letter on the subject, from a respectable gentleman of Georgia, applauding the appointment of Mr. Monroe. [He here read a letter expressing the approbation generally expressed at the nomination.] That there has been an indignity offered to the United States by the Spanish Government of New Orleans, he should not deny; so far, he joined the gentlemen on the other side, as not only to declare that sense of it, but to assert that the withdrawing the right of deposit, given under the fourth article of our treaty with Spain, concluded at San Lorenzo el Real, prior to the pointing out another place for that purpose, is such a violation of our right, and such an insult to the dignity of the nation, as ought not to be put up with in silence. We ought, we are bound to demand a restoration of that right, and to secure it to our Western citizens, let the risk be what it may, if it even extends to life and fortune. He cordially agreed with the gentleman who had preceded him, (Mr. MASON,) that it is a momentous subject; but could not consent to go at once to war, without trying, in the first place, every peaceable mode to obtain redress. The first part of the resolution declares, that the United States have an indisputable right to the free navigation of the river Mississippi, and to a convenient place of deposit for their produce and merchandise, in the island of New Orleans. Now, sir, the former part of this resolution is not affected by any proceedings of the Spanish Government. You are as perfectly in possession of the right as you ever were; your vessels are at this moment freely navigating that river; you have not heard of a single interruption; you have not learnt that the Spaniards, so far from interrupting that navigation, have ever doubted your right. Why then, sir, resolve on the assertion of rights which are not questioned, but of which you are completely in possession! He could compare it to no other case than that of a man in private life, in peaceable possession of his house, resolving on and publishing his own right to it, and thereby rousing the suspicions of his neighbors to doubt the title to it. Passing over the latter division of the first resolution, and which he acknowledged to be the fact, let us consider the second proposition, "That the late infraction of such their unquestionable right, is an aggression hostile to their honor and interest." Sir, after a declaration of this kind, can you retract? You cannot; it is in fact a declaration of war itself. Many of the courts of Europe would consider it so, and have engaged in war for less cause of offence than this resolution contains. You pronounce at once, without knowing whether the proceedings at New Orleans were sanctioned by the Court of Spain, that that nation is in a state of hostility against your honor and interest, which declaration, coupled with the following resolution, "That it does not consist with the dignity or safety of this Union to hold a right so important by a tenure so uncertain," is a direct insult to that nation. But if war is not to be found in those resolutions, is it not in the fifth resolution, "That the President be authorized to take immediate possession of such place or places in the said island, or the adjacent territories, as he may deem fit or convenient." Is this not war? If it be not, he knew not what war was! And now let us inquire, if we should be justified in adopting those measures, on the grounds of public or private justice, or the laws of nations. Sir, the going to war has always been considered, even among barbarous nations, a most serious thing; and it has not been undertaken without the most serious deliberation. It was a practice among the Romans, prior to undertaking a war, to consult the _faciales_ on the justice of it; and, after it had been declared just, to refer it to the Senate, to judge of the policy of it; and unless the justice and the policy were both accorded in, the war was not undertaken. If this was the case then among barbarous nations, shall we, who call ourselves a civilized nation, not well weigh the justice and the policy of going to war, before we undertake it? As to national honor and dignity, he believed we have all a proper sense of it, and he would be one of the last on this floor to put up with insult and indignity from any nation; but, as much as we had heard of it, he did not think we ought, without negotiation, to resent every injury by war. In many cases, national honor is only a convertible term for national interest; and he begged leave to relate an anecdote of a celebrated soldier on this head. After the failure of the attempted storm of Savannah, in the year 1779, Count D'Estaing, who was wounded in the attack, and lay in that situation about five miles from Savannah, was visited by Governor Rutledge and other gentlemen of South Carolina and Georgia. The Governor having perceived some movements in camp indicative of a retrogade motion, told the Count that his own honor and the honor of France were concerned in his remaining and taking the city. The Count very mildly replied, "Gentlemen, if my honor is to be lost by not taking the city, it is lost already; but I deem my honor to consist in the honor of my country, and that honor is my country's interest!" The time of operation in the West Indies was arrived, and the Count re-embarked his troops. Now, sir, is it not our duty to consult our country's interest, before we take this rash step, which we cannot recall? Peace is the interest of all republics, and war their destruction; it loads and fetters them with debt, and entangles not only the present race, but posterity. Peace, sir, has been the ruling policy of the United States throughout all her career. If we show the citizens that we are not willing to go to war, and load them with taxes, they will all be with us, when a necessity for war arrives. What, sir, was the policy of America, from the commencement of the Revolution? At that day, did we hastily go to war? No; we tried every peaceable means to avoid it, and those means induced a unanimity in the people. At the commencement many States were exceedingly divided, in some a majority were against us; yet, seeing the moderation and justice of our measures, and the rashness and tyranny of the British cabinet, they came over to our side, and became the most zealous among us. At the present moment, sir, the people are averse to war, they are satisfied with the steps of the Executive, they wish negotiation. If you adopt these resolutions, they will be still divided; if you negotiate, and fail in that negotiation--if you cannot obtain a redress of the injury which they feel as well as you, they will go all lengths with you, and be prepared for any event; you will have this advantage, you will be unanimous, and America united is a match for the world. In such a case, sir, every man will be anxious to march, he would go himself if called on, and whether the sluggish Spaniard or the French grenadier commands New Orleans, it must fall; they will not be able to resist the brave and numerous hosts of our Western brethren, who are so much interested in the injury complained of. He was himself of opinion that New Orleans must belong to the United States; it must come to us in the course of human events, although not at the present day; for he did not wish to use force to obtain it, if we could get a redress of injury; yet it will naturally fall into our hands by gradual but inevitable causes, as sure and certain as manufactures arise from increased population and the plentiful products of agriculture and commerce. But let it be noticed, that if New Orleans by a refusal of justice falls into our hands by force, the Floridas, as sure as fate, fall with it. Good faith forbids encroachment on a pacific ally; but if hostility shows itself against us, interest demands it; Georgia in such case could not do without it. God and nature have destined New Orleans and the Floridas to belong to this great and rising empire. As natural bounds to the South, are the Atlantic, the Gulf of Mexico, and the Mississippi, and the world at some future day cannot hold them from us. THURSDAY, February 24. _Mississippi Question._ Agreeably to the order of the day, the Senate resumed the consideration of the resolutions respecting the indisputable right of the United States to the free navigation of the Mississippi, together with the proposed amendments thereto. Mr. WELLS, of Delaware, said,--Gentlemen have persuaded themselves that the conduct of the Intendant is not authorized by the Spanish or French Government; but what reason have they assigned us in support of this opinion? They tell us of the friendly assurances received from the Minister of His Catholic Majesty resident near our Government; and they place considerable stress upon the circumstance of the Governor of New Orleans disapproving of what the Intendant has done. I will not stop to speak of the imprudence of reposing themselves upon the assurances of a Minister, perhaps expressly instructed to mislead them. But why have they trusted to the imaginary collision of sentiment between the Governor and Intendant of New Orleans? Do not gentlemen know that our Government is in possession of testimony, demonstrating beyond all kind of doubt, that this is not the fact? Have they not seen the letter of the Governor of New Orleans to the Governor of the Mississippi Territory? In this letter I learn that the Governor comes out and acknowledges his co-operation with the Intendant, justifies the breach of the treaty, and declares that these instruments cease their binding force the moment it suits the interest of either party to break through them. Alas! the history of the world furnishes us too many evidences of this melancholy truth. But this is the first time that any nation has had the hardihood to avow it. No, sir, even Carthage herself, who became proverbial for her disregard of treaties, never attained to a point so profligate. If I am incorrect in my statement, honorable gentlemen, who have easier access to the sources of official information than is permitted to us, will set me right. Why has this document been so sedulously kept from the public eye? Why it should be even now so carefully locked up, is a mystery not for me to unravel. I see no other course for us to pursue than that pointed out by the resolutions. Our interests, our honor, and our safety, require it to be adopted. I am aware that the alarm of war will be rung through the country. I know full well the pains that will be taken to impress an opinion upon our fellow-citizens that we are the friends of war. This we cannot help: the danger with which our country is threatened, will not permit us to shrink from the discharge of our duty, let the consequences to ourselves be what they may. Let me ask you with my honorable friend from New Jersey, (Mr. DAYTON,) what stronger evidence can we give you of the sincerity of our intentions than the resolutions themselves? So far from cramping, or diminishing the power of gentlemen opposed to us, in a crisis like the present, we only offer to strengthen their own hands. Had the advice of an honorable gentleman near me (Mr. MORRIS) been listened to, when you were disbanding your army, this crisis would not have happened. Had you then posted at the Natchez, as he recommended, a thousand soldiers, the navigation of the Mississippi would not now have been interrupted. He foretold you what would happen, and his prediction has been literally fulfilled. There is but one fault I find with these resolutions, which is, they do not go far enough. If I could obtain a second, I would move an amendment explicitly authorizing the taking possession of both the Floridas as well as the island of New Orleans. In one respect I entirely accord with the honorable gentleman from Georgia, (Mr. JACKSON,) and I admire the manly and decisive tone in which he has spoken upon this subject. We both agree that the Floridas must be attached to the United States; but we differ in point of time. The violent aggression committed upon our rights, and the extent of the danger with which we are threatened, in my humble opinion, would amply justify our taking possession of them immediately. Look at the relative situation of Georgia, the Mississippi Territory, and the Floridas, and it will require very little of the spirit of prophecy to foretell that we shall, ere long, be compelled to possess ourselves of them in our own defence. Mr. GOUVERNEUR MORRIS.--Mr. President, my object is peace. I could assign many reasons to show that this declaration is sincere. But can it be necessary to give this Senate any other assurance than my word? Notwithstanding the acerbity of temper which results from party strife, gentlemen will believe me on my word. I will not pretend, like my honorable colleague, (Mr. CLINTON,) to describe to you the waste, the ravages, and the horrors of war. I have not the same harmonious periods, nor the same musical tones; neither shall I boast of Christian charity, nor attempt to display that ingenuous glow of benevolence so decorous to the cheek of youth, which gave a vivid tint to every sentence he uttered; and was, if possible, as impressive even as his eloquence. But, though we possess not the same pomp of words, our hearts are not insensible to the woes of humanity. We can feel for the misery of plundered towns, the conflagration of defenceless villages, and the devastation of cultured fields. Turning from these features of general distress, we can enter the abodes of private affliction, and behold the widow weeping, as she traces, in the pledges of connubial affection, the resemblance of him whom she has lost for ever. We see the aged matron bending over the ashes of her son. He was her darling; for he was generous and brave, and therefore his spirit led him to the field in defence of his country. We can observe another oppressed with unutterable anguish: condemned to conceal her affection; forced to hide that passion which is at once the torment and delight of life; she learns that those eyes which beamed with sentiment, are closed in death; and his lip, the ruby harbinger of joy, lies pale and cold, the miserable appendage of a mangled corpse. Hard, hard indeed, must be that heart which can be insensible to scenes like these, and bold the man who dare present to the Almighty Father a conscience crimsoned with the blood of his children. Yes, sir, we wish for peace; but how is that blessing to be preserved? I shall here repeat a sentiment I have often had occasion to express. In my opinion, there is nothing worth fighting for, but national honor; for in the national honor is involved the national independence. I know that a State may find itself in such unpropitious circumstances, that prudence may force a wise government to conceal the sense of indignity. But the insult should be engraven on tablets of brass, with a pencil of steel. And when that time and chance, which happen to all, shall bring forward the favorable moment, then let the avenging arm strike him. It is by avowing and maintaining this stern principle of honor, that peace can be preserved. But let it not be supposed that any thing I say has the slightest allusion to the injuries sustained from France, while suffering in the pangs of her Revolution. As soon should I upbraid a sick man for what he might have done in the paroxysms of disease. Nor is this a new sentiment; it was felt and avowed at the time when these wrongs were heaped on us, and I appeal for the proof to the files of your Secretary of State. The destinies of France were then in the hands of monsters. By the decree of Heaven she was broken on the wheel, in the face of the world, to warn mankind of her folly and madness. But these scenes have passed away. On the throne of the Bourbons is now seated the first of the Gallic Cæsars. At the head of that gallant nation is the great--the greatest--man of the present age. It becomes us well to consider his situation. The things he has achieved, compel him to the achievement of things more great. In his vast career, we must soon become objects to command attention. We too, in our turn, must contend or submit. By submission we may indeed have peace, alike precarious and ignominious. But is this the peace which we ought to seek? Will this satisfy the just expectation of our country? No. Let us have peace permanent, secure, and, if I may use the term, independent. Peace which depends, not on the pity of others, but on our own force. Let us have the only peace worth having, a peace consistent with honor. Before I consider the existing state of things, let me notice what gentlemen have said in relation to it. The honorable member from Kentucky has told us, that indeed there is a right arrested, but whether by authority or not is equivocal. He says the representative of Spain verily believes it to be an unauthorized act. My honorable colleague informs us there has been a clashing between the Governor and Intendant. He says we are told by the Spanish Minister it was unauthorized. Notwithstanding these assurances, however, my honorable colleague has, it seems, some doubts; but nevertheless he presumes innocence, for my colleague is charitable. The honorable member from Maryland goes further. He tells us the Minister of Spain says, the Intendant had no such authority, and the Minister of France, too, says there is no such authority. Sir, I have all possible respect for those gentlemen, and every proper confidence in what they may think proper to communicate. I believe the Spanish Minister has the best imaginable disposition to preserve peace; being indeed the express purpose for which he was sent among us. I believe it to be an object near to his heart, and which has a strong hold upon his affections. I respect the warmth and benevolence of his feelings, but he must pardon me that I am deficient in courtly compliment; I am a republican, and cannot commit the interests of my country to the goodness of his heart. What is the state of things? There has been a cession of the island of New Orleans and of Louisiana to France. Whether the Floridas have also been ceded is not yet certain. It has been said, as from authority, and I think it probable. Now, sir, let us note the time and the manner of this cession. It was at or immediately after the treaty of Lunéville, at the first moment when France could take up a distant object of attention. But had Spain a right to make this cession without our consent? Gentlemen have taken it for granted that she had. But I deny the position. No nation has a right to give to another a dangerous neighbor without her consent. This is not like the case of private citizens, for there, when a man is injured, he can resort to the tribunals for redress; and yet, even there, to dispose of property to one who is a bad neighbor is always considered as an act of unkindness. But as between nations, who can redress themselves only by war, such transfer is in itself an aggression. He who renders me insecure; he who hazards my peace, and exposes me to imminent danger, commits an act of hostility against me, and gives me the rights consequent on that act. Suppose Great Britain should give to Algiers one of the Bahamas, and contribute thereby to establish a nest of pirates near your coasts, would you not consider it as an aggression? Suppose, during the late war, you had conveyed to France a tract of land along Hudson's River, and the northern route by the Lakes into Canada, would not Britain have considered and treated it as an act of direct hostility? It is among the first limitations to the exercise of the rights of property, that we must so use our own as not to injure another; and it is under the immediate sense of this restriction that nations are bound to act toward each other. But it is not this transfer alone. There are circumstances both in the time and in the manner of it which deserve attention. A gentleman from Maryland (Mr. WRIGHT) has told you, that all treaties ought to be published and proclaimed for the information of other nations. I ask, was this a public treaty? No. Was official notice of it given to the Government of this country? Was it announced to the President of the United States, in the usual forms of civility between nations who duly respect each other? It was not. Let gentlemen contradict me if they can. They will say perhaps that it was the omission only of a vain and idle ceremony. Ignorance may indeed pretend that such communication is an empty compliment, which, established without use, may be omitted without offence. But this is not so. If these be ceremonies, they are not vain, but of serious import, and are founded on strong reason. He who means me well acts without disguise. Had this transaction been intended fairly, it would have been told frankly. But it was secret because it was hostile. The First Consul, in the moment of terminating his differences with you, sought the means of future influence and control. He found and secured a pivot for that immense lever, by which, with potent arm, he means to subvert your civil and political institutions. Thus, the beginning was made in deep hostility. Conceived in such principles, it presaged no good. Its bodings were evil, and evil have been its fruits. We heard of it during the last session of Congress, but to this hour we have not heard of any formal and regular communication from those by whom it was made. Has the King of Spain, has the First Consul of France, no means of making such communication to the President of the United States? Yes, sir, we have a Minister in Spain; we have a Minister in France. Nothing was easier, and yet nothing has been done. Our First Magistrate has been treated with contempt; and through him our country has been insulted. With that meek and peaceful spirit now so strongly recommended, we submitted to this insult, and what followed? That which might have been expected; a violation of our treaty. An open and direct violation by a public officer of the Spanish Government. This is not the case cited from one of the books. It is not a wrong done by a private citizen, which might, for that reason, be of doubtful nature. No; it is by a public officer,--that officer, in whose particular department it was to cause the faithful observance of the treaty which he has violated. We are told indeed that there was a clashing of opinion between the Governor and the Intendant. But what have we to do with their domestic broils? The injury is done, we feel it. Let the fault be whose it may, the suffering is ours. But, say gentlemen, the Spanish Minister has interfered to correct this irregular procedure. Sir, if the Intendant was amenable to the Minister, why did he not inform him of the step he was about to take, that the President of the United States might seasonably have been apprised of his intention, and given the proper notice to our fellow-citizens? Why has he first learnt this offensive act from those who suffer by it? Why is he thus held up to contempt and derision? If the Intendant is to be controlled by the Minister, would he have taken a step so important without his advice? Common sense will say no. But, the bitter cup of humiliation was not yet full. Smarting under the lash of the Intendant, the Minister soothes you with assurances, and sends advice-boats to announce your forbearance. But while they are on their way, new injury and new insult are added. The Intendant, as if determined to try the extent of your meekness, forbids to your citizens all communication with those who inhabit the shores of the Mississippi. Though they should be starving, the Spaniard is made criminal who should give them food. Fortunately, the waters of the river are potable, or else we should be precluded from the common benefits of nature, the common bounty of heaven. What then, I ask, is the amount of this savage conduct? Sir, it is war. Open and direct war. And yet gentlemen recommend peace, and forbid us to take up the gauntlet of defiance. Will gentlemen sit here and shut their eyes to the state and condition of their country? I shall not reply to what has been said respecting depredations on commerce, but confine myself to objects of which there can be no shadow of doubt. Here is a vast country given away, and not without danger to us. Has a nation a right to put these States in a dangerous situation? No, sir. And yet it has been done, not only without our consent previous to the grant, but without observing the common forms of civility after it was made. Is that wonderful man who presides over the destinies of France, ignorant or unmindful of these forms? See what was done the other day. He directed his Minister to communicate to the Elector of Bavaria, his intended movements in Switzerland, and their object. He knew the Elector had a right to expect that information, although the greater part of Swabia lies between his dominions and Switzerland. And this right is founded on the broad principles already mentioned. Having thus considered the effect of this cession upon the United States, in a general point of view, let us now examine it more particularly, as it regards the greater divisions of our country, the Western, the Southern, the Middle, and the Eastern States. I fear, sir, I shall detain you longer than I intended, certainly longer than the light of day will last, notwithstanding my effort to comprise what I have to say in the smallest compass. As to the Western States, the effects will be remote and immediate. Those more remote may be examined under the twofold aspect of peace and war. In peace they will suffer the diminution of price for their produce. The advantage of supplying the French, Dutch, and Spanish colonies, may at first sight lead to a different opinion; but when the port of New Orleans is shut to all but French ships, there will no longer be that competition which now exists, and which always results in the highest price that commodities can bear. The French merchants have neither the large capital, nor have they the steady temper and persevering industry which foster commerce. Their invariable object in trade, is to acquire sudden wealth by large profit; and if that cannot be done, they abandon the pursuit for some new project. Certain of the market, and certain of the increasing supply, they will prescribe the price, both to those who cultivate, and to those who consume. Such will be the effect in peace. In a war with Great Britain, the attention of her fleets to cut off supplies from her enemies, must necessarily affect the price of produce in a still greater degree; and in a war with France it will bear no price at all, until New Orleans shall be wrested from their grasp. Add to this the danger and the devastation from the troops of that country, aided by innumerable hosts of savages from the Western wilds. Such being the evident effects to be produced in times not far remote, the present evil follows from the anticipation of them. The price of land must be reduced, from the certainty that its produce will become less valuable. The flood of emigration to those fertile regions must cease to flow. The debts incurred in the hope of advantageous sales, must remain unpaid. The distress of the debtor must then recoil on his creditor, and, from the common relations of society, become general. What will be the effect on the Southern States? Georgia, Carolina, and the Mississippi Territory are exposed to invasion from the Floridas and New Orleans. There are circumstances in that portion of America which render the invasion easy, and the defence difficult. Pensacola, though the climate be warm, is among the healthiest spots on earth. Not only a large garrison, but an army may remain there without hazard. At Pensacola and St. Augustine, forces may be assembled to operate in that season of the year, when the morasses which separate them from our southern frontier no longer breathe pestilence. By what are those armies to be opposed? Will you call the militia from the North to assist their Southern brethren? They are too remote. Will you secure their seasonable aid, bring them early to the fields they are ordered to defend? They must perish. The climate, more fatal than the sword, will destroy them before they see their foe. The country adjoining to our Southern frontier is now in possession of the most numerous tribes of savages we are acquainted with. The access to it from New Orleans and the Floridas is easy and immediate. The toys and gewgaws manufactured in France, will be scattered in abundance, to win their affections, and seduce them from their present connection. The talents of the French to gain the good will of the savages is well known, and the disposition of those uncultured men for war, is equally notorious. Here then is a powerful instrument of destruction, which may be used against you with ruinous effect. Besides, what is the population of the Southern States? Do you not tremble when you look at it? Have we not within these few days passed a law to prevent the importation of certain dangerous characters? What will hinder them from arriving in the Floridas, and what can guard the approach from thence to our Southern frontier? These pernicious emissaries may stimulate with a prospect of freedom the miserable men who now toil without hope. They may excite them to imitate a fatal example, and to act over those scenes which fill our minds with horror. When the train shall be laid; when the conspiracy shall be ripe; when the armies of France shall reach your frontier, the firing of the first musket will be a signal for general carnage and conflagration. If you will not see your danger now, the time must soon arrive when you shall feel it. The Southern States being exposed to such imminent danger, their Representatives may be made to know, that a vote given in Congress shall realize the worst apprehensions. You will then feel their danger even on this floor. Let us now consider the consequence of the cession we complain of, to other nations, and this we may do generally, and then more especially as to those who have a direct and immediate interest in the transaction. In a general view, the first prominent feature is the colossal power of France. Dangerous to Europe and to the world, what will be the effect of a great increase of that power? Look at Europe! One half of it is blotted from the list of empire. Austria, Russia, Prussia, and Britain, are the only powers remaining, except Sweden and Denmark, and they are paralyzed. Where is Italy, Switzerland, Flanders, and all Germany west of the Rhine? Gone; swallowed up in the empire of the Gauls. Holland, Spain, Portugal, reduced to a state of submission and dependence. What is the situation of the powers that remain? Austria is cut off from Italy, the great object of her ambition for more than three centuries; long the rival of France, long balancing with the Bourbons the fate of Europe, she must now submit, and tacitly acknowledge to the world the superiority of her foe, and her own humiliation. Prussia, under the auspices of the Great Frederick, was at the head of a Germanic league to balance the imperial power. Though united with Austria for a moment in the hollow league of the coalition, she has, like Austria, been actuated by a blind jealousy, and favoring the operations of France for the ruin of her rival, expected to share largely in the general spoil. In this fond hope she is disappointed; she now sees the power of France at her door. There is not a fortress from the Rhine to the Baltic, except Magdeburgh, which the First Consul may leave on his left. The fertile plains near Leipsic contain the magazines for his armies when he shall think proper to march to Berlin. Westphalia and Lower Saxony are open on the side of Flanders and Holland. The Maine presents him a military road to the borders of Bohemia. By the Necker he approaches Ulm, and establishes himself on the Danube.[71] These rivers enable him to take the vast resources of his wide domain to the point where he may wish to employ them. Menacing at pleasure his neighbors, he is himself secured by a line of fortresses along his whole frontier. Switzerland, which was the only feeble point of his defence, and which separated his Gallic and Italian dominions, has lately been subjected. The voice you now hear, warned the Swiss of their fate more than eight years ago. The idea seemed then extravagant; but realized, it appears but as a necessary incident. Russia is deprived of her influence in Germany, and thereby of a principal instrument by which her policy might operate on the great powers of the South. The Germanic body is indeed in the hand of the First Consul. Three new Electors along the Rhine are under the mouths of his cannon. They dare not speak. Speak! None dare speak. They dare not _think_ any thing inconsistent with his wishes. Even at their courtly feasts they sit like Damocles, destruction suspended over their heads by a single hair. Would you know the sentiment of England? Look at the debates. In the two Houses of Parliament they speak their fears. Such being the general sentiment of Europe, can it be supposed that they will view without anxiety a new extension of that power and dominion, the object of their hatred and apprehension? Will it be said that there is a security to the freedom of mankind from the moderation with which this enormous power is to be exercised? Vain delusion! This power is not the result of accident. At the moment when France dethroned her sovereign, it was easy to foresee that a contest must ensue in which her existence would be staked against the empire of the world. If not conquered by surrounding princes, (and the hope of such conquest, unless by the aid of her own citizens, was idle,) her numerous armies acquiring discipline must eventually conquer. She had the advantages of situation, and those which result from union, opposed to councils uncertain and selfish. It was easy also to foresee that, in the same progress of events, some fortunate soldier would seat himself on the vacant throne; for the idea of a French Republic was always a ridiculous chimera. Buonaparte has placed himself at the head of that nation by deeds which cast a lustre on his name. In his splendid career he must proceed. When he ceases to act he will cease to reign. Whenever in any plan he fails, that moment he falls. He is condemned to magnificence. To him are forbidden the harmonies and the charities of social life. He commands a noble and gallant nation, passionately fond of glory. That nation stimulates him to glorious enterprise, and, because they are generous and brave, they ensure his success. Thus the same principle presents at once the object and the means. Impelled by imperious circumstances, he rules in Europe, and he will rule here also, unless by vigorous exertion you set a bound to his power. I have trespassed on your patience more than I wished, although, from the lateness of the hour, much has been omitted of what I ought to have said. I have endeavored to show that, under the existing circumstances, we are now actually at war, and have no choice but manly resistance or vile submission. That the possession of this country by France is dangerous to other nations, but fatal to us. That it forms a natural and necessary part of our empire; that, to use the strong language of the gentleman near me, it is joined to us by the hand of the Almighty, and that we have no hope of obtaining it by treaty. If, indeed, there be any such hope, it must be by adopting the resolutions offered by my honorable friend. Sir, I wish for peace--I wish the negotiation may succeed, and therefore I strongly urge you to adopt those resolutions. But though you should adopt them, they alone will not ensure success. I have no hesitation in saying that you ought to have taken possession of New Orleans and the Floridas the instant your treaty was violated. You ought to do it now. Your rights are invaded--confidence in negotiation is vain; there is therefore no alternative but force. You are exposed to imminent present danger. You have the prospect of great future advantage. You are justified by the clearest principles of right. You are urged by the strongest motives of policy. You are commanded by every sentiment of national dignity. Look at the conduct of America in her infant years, when there was no actual invasion of right, but only a claim to invade. She resisted the claim; she spurned the insult. Did we then hesitate? Did we then wait for foreign alliance? No; animated with the spirit, warmed with the soul of freedom, we threw our oaths of allegiance in the face of our sovereign, and committed our fortunes and our fate to the God of battles. We then were subjects. We had not then attained to the dignity of an independent Republic. We then had no rank among the nations of the earth. But we had the spirit which deserved that elevated station. And now that we have gained it, shall we fall from our honor? Sir, I repeat to you that I wish for peace--real, lasting, honorable peace. To obtain and secure this blessing, let us by a bold and decisive conduct convince the Powers of Europe that we are determined to defend our rights; that we will not submit to insult; that we will not bear degradation. This is the conduct which becomes a generous people. This conduct will command the respect of the world. Nay, sir, it may rouse all Europe to a proper sense of their situation. They see that the balance of power on which their liberties depend, is, if not destroyed, in extreme danger. They know that the dominion of France has been extended by the sword over millions who groan in the servitude of their new masters. These unwilling subjects are ripe for revolt. The empire of the Gauls is not like that of Rome, secured by political institutions. It may yet be broken. But whatever may be the conduct of others, let us act as becomes ourselves. I cannot believe with my honorable colleague, that three-fourths of America are opposed to vigorous measures. I cannot believe that they will meanly refuse to pay the sums needful to vindicate their honor and support their independence. Sir, this is a libel on the people of America. They will disdain submission to the proudest sovereign on earth. They have not lost the spirit of seventy-six. But, sir, if they are so base as to barter their rights for gold, if they are so vile that they will not defend their honor, they are unworthy of the rank they enjoy, and it is no matter how soon they are parcelled out among better masters. FRIDAY, February 25. _Mississippi Question._ The Senate resumed the consideration of the resolutions respecting the indisputable right of the United States to the free navigation of the Mississippi, together with the proposed amendment thereto. Mr. ANDERSON (of Tennessee) said he rose with much diffidence, after the very able discussion which the subject had already undergone; after so many men distinguished among the first in our country had treated it with so much ability, he could not expect to furnish many new facts or observations on the subject. But coming from that part of the country which is particularly interested in the discussion, he felt himself particularly bound to offer a few remarks, which some erroneous statements that had fallen in debate, from the gentleman from Delaware, (Mr. WHITE,) particularly called for. He would, while he was up, endeavor to add a few observations on the resolutions. The first of the resolutions appeared to him to be introduced merely with a view to involve the members who were opposed to hostile measures in a dilemma. It was the assertion of a truth which no one would deny, but it was connected with other resolutions or assertions, which must from propriety bring the whole under a negative vote. Taking the naked proposition that we have a right to the place of deposit, we all agree; that it has been suspended, we are equally agreed; but there we stop; by prefacing their resolutions with these truths, they expect either to induce us to vote for other things repugnant to our judgment, or afford room for the imputation of wrong motives and clamor abroad. But we are not to be led astray in this way, nor are the people of this country to be so deceived. On the first organization of the Government, the most earnest attention was directed to that river; and it is now as much an object of the care of Government as at any period since we have been an independent people. Gentlemen have not, therefore, represented the matter with that candor which the seriousness of the subject demanded. The navigation of the Mississippi has not been infringed on the present occasion, though the arguments of all, and the assertions of some, went to the extreme on that point. The river, he repeated, was and continues to be open, and he could not discover the utility of our declaring our right to the free navigation when we are in full unmolested possession of the right. He could indeed discover something beside utility; he could see a design nowise founded. The gentlemen expected with them the votes of the Western members; they expected to play upon our passions, and to place us between the danger of unpopularity and the sense of personal feeling, in a case of a critical nature. But gentlemen would find themselves mistaken to the utmost; though he felt himself, in common with other Western members, responsible to his constituents, yet he would on all occasions where the sense of right impressed itself strongly on him, risk popularity to do right. On this occasion he saw no danger of his popularity, because, although he was aware that the people whom he represented were dissatisfied, they respected their Government and themselves too much to countenance any means that were not honorable and just, to obtain the deposit right. The resolutions called upon us to declare the deprivation of the right of deposit to be hostile to our honor and interests. On this there were a variety of opinions; and it appears to be agreed (for it was not contradicted by any) that the act of an individual unauthorized cannot be either a cause of war, or the act of the government of which he is an officer. No gentleman has positively declared the act to be authorized by Spain. We have the best evidence that the case will admit of, that it has not been authorized. As the act of an individual, therefore, it cannot affect the honor of this country. That her interests are affected is agreed on all hands; but then the due course of proceeding has been adopted, and redress is to be expected. If it should be denied us, we have our remedy, and it is then that it will become a point of honor. But now, as had been well said by his friend from Georgia, (Mr. JACKSON,) if we were to rashly declare the act of the individual contrary to our national honor, we could not retrograde; and if Spain should not do us justice, he trusted that we should then take our strong ground, and not give way a step. This would be the effect. Gentlemen do not know the American character--they underrate it: there is not that levity in it which gentlemen suppose, capable of being lightly led astray. The character of America is fixed, and when real necessity calls for their exertions, the people will require no artificial excitement. From time to time, he had heard in that House and in other places, the most wanton and cruel aspersions cast upon the people of the Western country. He knew not how gentlemen could reconcile their pretensions of regard for the Western people with the odious imputations which were constantly cast upon their attachment. The whole of the opposition appeared to concur in their illiberality towards the Western people, at the very moment they were professing so much zeal for their good. The late President of the United States had in the most unwarrantable manner told him, that the Western people were ready to hold out their hands to the first foreigner that should offer them an alliance; the same sentiment is echoed here, only in different terms. But such vile imputations attach not to the Western people, but to those who employed them. The Western people are Americans, who wasted the spring-tide and summer of their days in the cause of their country; men who, having spent their patrimony in establishing their country's independence, travelled to the wilderness, to seek a homestead for themselves and children. Was it honorable, was it consistent with those labored efforts for their good, which we are told actuate gentlemen, to calumniate them in so unworthy a fashion? Gentlemen appear by their gestures to deny that they have been guilty of this calumny. But my charge against them is not of that evasive or double character which they deal in; the words they have used I have taken down--they are; "The French would draw the Western people into an alliance," "The Western people would be influenced by the insidious emissaries of France," "Corruption would find its way among them, and be transferred even to that floor." Is this not calumny of the darkest hue? Is this the way in which six hundred thousand men are to be stigmatized? Men, a greater proportion of whom are soldiers who fought for the independence of America, than ever was to be found in the whole State (Delaware) to which the gentleman belongs. During twelve years, eight of which one of the first men the world ever saw, or perhaps ever will see, presided over our affairs, the policy of pacific negotiation prevailed in our councils; a policy somewhat more hostile in its aspect was attempted by his successor, but still negotiation succeeded negotiation, and success attended perseverance. In the early stages of our existence, before we were yet a nation, it is indeed true that we drank of the cup of humiliation, even to the dregs; it was the natural effect of our dependent situation; of the prejudices that bound us, and from which great violence was necessary, and was employed to detach us. Such humiliation would not befit us now; no motives exist to demand or justify it: we were then a part of another nation, and connected with another Government; we began by petition in the terms of abjectness and humility, which are incidental to subjects of monarchs; which are always necessary, in order to conceal the spirit and the presumption, of which monarchs are always jealous in their subjects; but abject as we appeared, the very temper and phrase of humility deceived our oppressor into a belief that we were too lowly to entertain the manly temper of resistance against oppression. Yet our precursory and reiterated humility did not unnerve our arms nor subdue our minds, when it became necessary to fling off the trammels of oppression. The result, we now enjoy. When that very power from which we had detached ourselves, refused to carry her treaty into execution, did we then go to war? She held several of our fortresses; we were entitled by every right of nature, and the usage of nations, to seize upon them; not like the right of deposit, a privilege enjoyed on the territory of another, but fortresses held, and in military array on our own territory. Did we then make war? No, we negotiated; and when another power subsequently attacked us, we pursued the same course with the like success. The gentleman (Mr. ROSS) has told us that when President WASHINGTON came into office, he would not have negotiated for the Mississippi, had he not found the negotiation already begun. The gentleman has not told us upon what authority he states this, or how he came to possess the knowledge of a fact of which all others are ignorant; a fact, too, contradictory of his practice through life, and of the principles of that legacy which he left to his country. Mr. S. T. MASON, said, that if he were to consult the state of his health, he should not trouble the Senate with any remarks on the resolutions before them. But he had heard in the course of debate, certain observations, such strange and paradoxical arguments; insinuations and assertions of such a nature as ought not to be passed unnoticed. Doubtful whether his strength would sustain him through the whole scope which in better health he should take, he would endeavor to limit his arguments to a few of the most prominent particulars, which excited his attention, and to the delivery of his reasons for preferring the substitute propositions of his friend from Kentucky, (Mr. BRECKENRIDGE,) to the original resolutions of the gentleman from Pennsylvania. He had heard, in the debate, many professions of confidence in the Executive. He was very glad to hear such unusual expressions from that quarter. However, it was entitled to its due weight--what that was he would not inquire; but this he would say, that this unexpected ebullition of confidence went very much farther than he should be disposed to carry his confidence in any man or any President whatever. Gentlemen tell us that they are willing to intrust to the Executive the power of going to war, or not, at his discretion. Wonderful indeed is this sudden disposition to confidence? Why do not gentlemen give away that which they have some authority or right to bestow? Who gave them the power to vest in any other authority than in Congress the right of declaring war? The framers of this constitution had too much experience to intrust such a power to any individual; they early and wisely foresaw, that though there might be men too virtuous to abuse such a power, that it ought not to be intrusted to any; and nugatory would be the authority of the Senate, if we could assume the right of transferring our constitutional functions to any man or set of men. It was a stretch of confidence which he would not trust to any President that ever lived, or that will live. He could not as one, without treason to the constitution, consent ever to relinquish the right of declaring war to any man, or men, beside Congress. We are told that negotiation is not the course which is proper for us to pursue. But to this he should reply, that such was the usage of all civilized nations; and, however gentlemen might attempt to whittle away the strong ground taken by his friend from New York, he had shown, in a manner not to be shaken, that negotiation before a resort to the last scourge of nations, is the course most consistent with good policy, as well as with universal practice. The gentleman from Pennsylvania had indeed told us that Great Britain had departed from that practice; unfortunately for Great Britain and the gentleman's argument, he told us, at the same time, that she had sustained a most serious injury by her injustice and precipitation. She went to war to seek retribution, and after fighting a while, she left off, and forgot to ask the retribution for which she went to war! And this is the example held up for our imitation; because Great Britain violated the law of nations, we are called upon to do so too! We are told also that Great Britain commenced war during our Revolution, against the Dutch, without any previous notification; that she did the same in the late war with France, and in both cases seized on the ships in her harbors; that is, like a professional bully, she struck first, and then told them she would fight them--and this is the gracious example held up to us. The merits of the different propositions consisted in this, that by the amendments we propose to seek the recourse of pacific nations--to follow up our own uniform practice; we pursue, in fact, the ordinary and rational course. The first resolutions go at once to the point of war. This was openly and fairly acknowledged by the gentleman from New York (Mr. G. MORRIS.) The gentleman from Pennsylvania, (Mr. ROSS,) indeed, told us that it is not war--it was only going and taking peaceable possession of New Orleans! He did not before think the gentleman felt so little respect for the Senate, or estimated their understandings so much inferior to his own, as to call such a measure an act of peace! How did the gentleman mean to go, and how take peaceable possession? Would he march at the head of the _posse comitatus_? No! he would march at the head of fifty thousand militia, and he would send forth the whole naval and regular force, armed and provided with military stores. He would enter their island, set fire to their warehouses, and bombard their city, desolate their farms and plantations, and having swept all their habitations away, after wading through streams of blood, he would tell those who had escaped destruction, we do not come here to make war on you--we are a very moderate, tender-hearted kind of neighbors, and are come here barely to take peaceable possession of your territory! Why, sir, this is too naked not to be an insult to the understanding of a child! But the gentleman from New York (Mr. MORRIS) did not trifle with the Senate in such a style; he threw off the mask at once, and in a downright manly way, fairly told us that he liked war--that it was his favorite mode of negotiating between nations; that war gave dignity to the species--that it drew forth the most noble energies of humanity! That gentleman scorned to tell us that he wished to take peaceable possession. No! He could not snivel; his vast genius spurned huckstering; his mighty soul would not bear to be locked up in a petty warehouse at New Orleans; he was for war, terrible, glorious havoc! He tells you plainly, that you are not only to recover your rights, but, you must remove your neighbors from their possessions, and repel those to whom they may transfer the soil; that Buonaparte's ambition is insatiable; that he will throw in colonies of Frenchmen, who will settle on your frontier for thousands of miles round about, (when he comes there;) and he does not forget to tell you of the imminent dangers which threaten our good old friends the English. He tells you that New Orleans is the lock and you must seize upon the key, and shut the door against this terrible Buonaparte, or he will come with his legions, and, as Gulliver served the Lilliputians, wash you off the map. Not content, in his great care for your honor and glory, as a statesman and a warrior, he turns prophet to oblige you--your safety in the present year or the next, does not satisfy him--his vast mind, untrammelled by the ordinary progressions of chronology, looks over ages to come with a faculty bordering on omniscience, and conjures us to come forward and regulate the decrees of Providence at ten thousand years distance. We have been told that Spain had no right to cede Louisiana to France; that she had ceded to us the privilege of deposit, and had therefore no right to cede her territory without our consent! Are gentlemen disposed to wage war in support of this principle? Because she has given us a little privilege--a mere indulgence on her territory--is she thereby constrained from doing any thing for ever with her immense possessions? No doubt, if the gentleman (Mr. MORRIS) were to be the negotiator on this occasion, he would say: "You mean to cede New Orleans; no, gentlemen, I beg your pardon, you cannot cede that, for we want it ourselves; and as to the Floridas, it would be very indiscreet to cede that, as, in all human probability, we shall want that also in less than five hundred years from this day; and then, as to Louisiana, you surely could not think of that, for in something less than a thousand years, in the natural order of things, our population will progress towards that place also." If Spain has ceded those countries to France, the cession has been made with all the encumbrances and obligations to which it is subject by previous compact with us. Whether Buonaparte will execute these obligations with good faith, he could not say; but to say that Spain has no right to cede, is a bold assertion indeed. The people of America will not go along with such doctrines, for they lead to ruin alone. We are also told, that the power of the Chief Consul is so great, that he puts up and pulls down all the nations of the Old World at discretion, and that he can do so with us. Yet we are told by the wonderful statesman, who gives us this awful information, that we must go to war with this maker and destroyer of Governments. If, after the unceasing pursuit of empire and conquest, which is thus presented to us, we take possession of his territory, from the gentleman's own declarations, what are we to expect, only that this wonderful man, who never abandons an object--who thinks his own and the nation's honor pledged to go through whatever he undertakes--will next attack us? Does the gentleman think that this terrible picture, which his warm imagination has drawn, is a conclusive argument for proceeding to that war which he recommends? The Senate, Mr. PRESIDENT, at this moment, presents a very extraordinary aspect; and by those not acquainted with our political affairs, it would appear a political phenomenon. Here we see a number of people from the Eastern States and the seaboard, filled with the most extreme solicitude for the interest and rights of the Western and inland States; while the representatives of the Western people themselves appear to know nothing of this great danger, and to feel a full confidence in their Government. The former declaring that the Western people are all ready for revolt and open to seduction; the latter ignorant of any such disposition, and indignant at the disgrace which is thrown on their character. In their great loving-kindness for the Western people, those new friends of theirs tell them that they are a simple people, who do not know what is good for them, and that they will kindly undertake to do this for them. From the contiguous States of South Carolina, Georgia, Tennessee, and Kentucky, (those States from which the gentleman from Pennsylvania, by his resolutions, proposes to draw the militia,) every member of this House is opposed to war; but from the East, (and one can scarcely refrain from laughing, to hear of the all-important representatives of the State of Delaware in particular,) such is the passion for the wonderful, or the absurd, there prevails the liveliest sensibility for the Western country! Mr. NICHOLAS said,--When the gentleman from Pennsylvania (Mr. ROSS) opened his war project, his resentment appeared to be confined wholly to Spain; his sole object the securing the navigation of the Mississippi, and our right to a convenient place of deposit on that river. We were told by that gentleman, that we are bound to go to war for this right, which God and nature had given the Western people. What are we to understand by this right, given by God and nature? Surely not the right of deposit, for that was given by treaty; and as to the right of navigation, that has been neither suspended nor brought into question. But we are told by the same gentleman, that the possession of New Orleans is necessary to our complete security. Leaving to the gentleman's own conscience to settle the question as to the morality of taking that place, because it would be convenient, he would inform him that the possession of it will not give us complete security. The island of Cuba, from its position, and the excellence of its harbors, commands the Gulf of Mexico as completely as New Orleans does the river Mississippi, and to give that complete security that he requires of the President, the island of Cuba must likewise be taken possession of. It has been shown that the measures proposed by the gentleman from Pennsylvania, and he would again demonstrate it, if it was necessary, are calculated to bring upon the Western country all the mischiefs that gentleman has depicted as resulting to them from a loss of the navigation of the river Mississippi. If we are driven to war to assert our rights, the Western people must make up their minds to bear that loss during the war; for without a naval superiority, which we have not and cannot obtain, or the possession of Cuba, we shall not be able to avail ourselves of the navigation to any useful purpose. Although we may take possession of the Floridas and New Orleans, it is from a conviction of its pernicious effects upon the Western country, as well as other reasons, that he was averse to appealing to arms as long as there is a prospect of attaining our object in another way. The gentleman from New York, finding the weight of argument against him, and that a resort to arms would not be justifiable upon the ground taken by his friends, with a boldness and promptitude that characterizes veteran politicians, has not only assigned new and different causes for war, but new objects, and a new and more powerful enemy to cope with. He no doubt felt the force of the arguments that have been used to show the improbability that Spain would authorize an act that would produce a rupture with this country, at the moment that she was parting with Louisiana, and when she could not possibly derive any advantage from the wrong that she could do us by that act; and at a time when we knew from unquestionable evidence that it is the desire of Spain to cultivate a good understanding with this country. He could give no credit to the suggestion, that the First Consul had required Spain to take that step. He knew that character too well to believe that he would attempt to throw a responsibility upon others, for his measures, nor indeed could it be shown that the First Consul would be in any way benefited by it; he knows the American character too well to believe that any of the reasons that have been assigned by his friends who have preceded him in this argument, would form a justification for a declaration of war, without a previous demand for a redress of the wrongs that we have sustained. He knows that our countrymen, with a courage and perseverance that does promise success in any war, are at all times ready when it is necessary to assert their rights with arms, but that they will not be employed in wars of ambition or conquest; and above all, he sees the folly of going to war with Spain, and taking from her a country that we should be obliged in honor and justice to give up to the French, perhaps the instant after we had taken possession of it; for if France would reinstate us in the rights and privileges that we hold under our new treaty with Spain, I demand of the gentleman from New York, if he would wish this country to hold possession against France; and if he would, upon what ground he would justify it? The cession was made to France before the injury done us by the Spanish officer; knowing this, we take the country; upon France demanding it of us, we should be bound by every principle of honor and justice to give her possession, upon her engaging to respect properly our rights. Spain having injured us surely will not justify our committing an outrage of the most injurious and insulting nature upon France. Would conduct like this comport with the gentleman's ideas of national honor, about which we have heard so much in the course of this debate? Can it be, that an act, which, if perpetrated by an individual, would be robbery, can be justifiable in a nation? And can it be justifiable in the eyes of men, who believe there is nothing so precious or important as national honor? Can the usefulness or convenience of any acquisition justify us in taking from another by force what we have no sort of right to? There were not in America men more attached or more faithful to the Government of the United States than they were; and I will venture to predict, from my knowledge of them, that they will be the last to submit to the yoke of despotism, let it be attempted to be imposed upon them by whom it may. If there is one part of America more interested than any other in preserving the union of these States, and the present Government, it is the Western. Important as the Mississippi is to them, their free intercourse with the Atlantic States is more important--all their imports are received through that channel, and their most valuable exports are sold, and will continue to be so, in the Atlantic States. The same gentleman (Mr. MORRIS) says, we must line our frontier with custom-house officers, to prevent smuggling. If there is any force in what he says upon this subject, we ought not only to take New Orleans and the Floridas, but Louisiana, and all the British possessions on the continent. Another reason urged with great earnestness by the gentleman from New York, (Mr. MORRIS,) is, that France, without this acquisition, is too powerful for the peace and security of the rest of the world--that half the nations that lately existed are gone--that those that are left are afraid to act, and nation after nation falling at her nod--that, if France acquires the Floridas and New Orleans, it will put England and Spain completely in her power, giving to those places an importance that they do not merit; and yet that gentleman and his friends have repeatedly asserted that war would not result from our taking immediate possession of those places; indeed, they say, it is the only way to avoid war. At one moment the country is represented as so important as to make the First Consul the sovereign of the world; at the next, we are told that we may take it without any sort of risk, and without a probability that either France or Spain will go to war with us for the recovery of a country so all-important to them. In the language of the gentleman from Pennsylvania, I say, this idle tale may amuse children, but will not satisfy men. Mr. PRESIDENT, we have nothing to fear from the colony of any European nation on this continent; they ought rather to be considered as a pledge of the good conduct of the mother country towards us; for such possessions must be held only during our pleasure. Can France, in fifty years, or in a century, establish a colony in any part of the territories now possessed by Spain, that could resist the power of the United States, even at this day, for a single campaign? What has been our progress since the year 1763, in settling our Western country? In forty years, under the most favorable circumstances that a new country could be settled, we have only a population of between five and six hundred thousand souls, and this country is settled by men who knew it perfectly--by men who either carried all their friends with them, or who knew that change of residence would not prevent their frequently seeing and hearing from their nearest relatives. Can it be expected that any country will be peopled as fast, from a nation at the distance of three thousand miles, as our Western country has been? And yet we are taught to be apprehensive of a colony to be landed to-morrow or next day from Europe. Sir, if we are wise and true to ourselves, we have nothing to fear from any nation, or combination of nations, against us. We are too far removed from the theatre of European politics, to be embroiled in them, if we act with common discretion. Friendship with us, is the interest of every commercial and manufacturing nation. Our interest is not to encourage partialities or prejudices towards any, but to treat them all with justice and liberality. He should be sorry to reproach any nation--he would rather suffer former causes of reproach to be buried in oblivion; and he was happy to perceive that prejudices which were incidental to the war that we had been forced into in defence of our liberties, with a nation from which we are principally sprung, were fast wearing off. Those prejudices had been very powerfully revived, soon after our Revolution had established our independence, by the aggressions of that nation, in various ways, more flagrant and atrocious than any thing we have to complain of at this day. The gentleman from Pennsylvania said that this is not an apposite case; that at that time there was no blockade. It is true there was not a blockade of one of our ports, nor is there now, (the river Mississippi is open for the passage of our boats and vessels,) but we were injured, in a commercial point of view, in a more material manner than we should have been by the blockade of the Delaware or the Chesapeake; for all the countries (except Great Britain) to which it was desirable for us to trade were declared to be in a state of blockade, and all our vessels going to those countries were subject to seizure. Let gentlemen call to mind what was the conduct of our Government at that time. The House of Representatives had the subject under consideration, when the then President appointed an Envoy Extraordinary to demand satisfaction of Great Britain. What was the conduct of the members of the House of Representatives, who were acting upon the subject, before it was known to them that the Executive had taken any measures to obtain satisfaction for the injury sustained? Did they attempt to counteract the Executive? No; they suspended all Legislative discussions and Legislative measures. And even the injuries done us by the actual invasion of our territory, the erection of fortifications within our limits, the withholding the posts that belonged to us by treaty, and the robbery and abuse of our citizens on the high seas, did not provoke us to declare war, nor even to dispossess the invaders of our territory of what actually belonged to us. The Executive proposed to negotiate, and it was thought improper to obstruct it. How gentlemen who approved of the interference of the Executive upon that occasion, can justify their attempt to defeat the efforts of the present Administration to obtain redress for the injury that we now complain of, they must answer to their consciences and their country. Fortunately for the United States, not only the President, but a majority of both Houses of Congress, upon the present occasion, have put themselves in the gap between the pestilence and the people. If the gentleman from New York had exerted his ingenuity as much to state the grounds upon which an expectation of the complete success of our Envoy might be founded, he would have been at least as usefully employed for his country as he has been in his attempt to show that it will not succeed, and he would have avoided the palpable contradictions of his own arguments that he has run into. The gentleman himself, without intending it, has assigned sufficient reasons why we might expect entire satisfaction. He has said, truly, that America, united, holds the command of the West Indies in her hands. This must be known to all the nations that have colonies there; it must likewise be known to the proprietors of Louisiana and the Floridas, that, circumstanced as we at present are, there will be perpetual sources of contention between them and us. Every thing that has happened as to the Mississippi will be reacted as to the great rivers that head in what is now the Mississippi Territory, and empty themselves into the Gulf of Mexico, after passing through West Florida. In the infancy of the colonies that may be settled in Florida or Louisiana, the mother country can count upon nothing but expense, particularly if they are to be the causes of perpetual quarrels with this country. In twenty years, the population of the United States will be nine or ten millions of people; one-third of that population will probably be on the Western waters. This will give a force in that quarter of the Union equal to that with which we contended with Great Britain; and our united force will be such that no nation at the distance of three thousand miles will be able to contend with us for any object in our neighborhood. These considerations, with a belief that, if we are treated with justice and liberality, we shall never violate the rights of other nations, or suffer ourselves to be involved in the wars that may take place among the great European nations, are arguments that cannot be withstood, if the Governments of France and Spain are in the hands of wise men; for they must see that they have nothing to hope from a contest with us, and that a union of our force with a rival nation would be productive of very serious danger and inconvenience to them. Mr. DAYTON said, he lamented exceedingly the indisposition of the honorable member from Virginia, (Mr. NICHOLAS,) not only because it had compelled him to abridge his arguments, which always entertained, even when they failed to convince, but because to that distraction of mind which sickness often produces, could alone be ascribed the doubts expressed by that member, respecting the views of the advocates of the original resolutions. The difficulty of the opposers of the resolutions, would, he said, have been less, if the gentlemen who supported them had settled among themselves what was their object, and had ascertained with whom we were to make war. To both these points, Mr. D. said, the fullest and clearest answers had been given. Our object, says he, is to obtain a prompt redress of injuries immediately affecting our Western brethren, who look to us for decisive and effectual measures, and have told us that a delay of remedy will be ruinous to them; and our views and wishes are to take possession of the place of deposit guaranteed by treaty, whether it be in the hands of the one nation or the other, and to hold it as a security that the trade of so important a river should not be liable to similar interruptions in future. We are not, as the gentleman from Virginia would insinuate, for rushing into a war, but we are for repelling insults, and insisting upon our rights, even at the risk of one. It was easy to foresee that the opposers of the resolutions offered by the honorable gentleman from Pennsylvania, must resort to other means than fair argument, to justify them in the course which they were about to pursue. Our most precious rights flagrantly violated, treaties perfidiously broken, the outlet or road to market of half a million of our fellow-citizens obstructed, our trade shackled, our country grossly insulted, were facts too notorious, and too outrageous to allow them the least plausible ground of reasoning. Deprived of every other means of attack, they have resorted to that of alarm. They charge us with a thirst for war, and enter into a description of its horrors, as if they supposed that it was in our power to produce, or in theirs to prevent it. That which requires the concurrence of two parties, viz: contract or negotiation, they consider most easy; and war, which may always be produced by one party only, they consider as most difficult. Nay, sir, they do what is more extraordinary and unpardonable, they shut their eyes to the fact that hostility has already been commenced against us. Attacked and insulted as we had been, do we now, asked Mr. D., call for war? Let the resolutions give the answer. They begin with a declaration of certain rights, indisputable in their nature, indispensable in their possession, to the safety, peace, and union of this country. Not a member opposed to us has controverted them, except the honorable gentleman from Maryland, (Mr. WRIGHT.) He denied the truth of all except one of them, and even of a part of that one. His honorable friends from the Western country, who are in the habit of acting with him, cannot thank him for such defence. The formerly well applied words, "_Non tali auxilio nec defensoribus istis egent_," must be applicable on this occasion, and it may be as well to leave them with each other to settle the question of their rights. But there is one article of the Maryland member's creed which ought not to escape comment, because, if adopted, it would be fatal to the Union. I understood him, said Mr. D., as stating, that inasmuch as the produce which descends the Mississippi bears a proportion of about a twentieth only to the exports of the whole Union, it was not reasonable to expect that the other portion should be endangered to protect that minor part. If maxims like this were to actuate our councils, short indeed would be the duration of our independence. Our enemies would have only to attack us by piecemeal, State by State, to make us an easy prey. The honorable member from Maryland could not hope for even that gloomy consolation which we heard of on a former melancholy occasion. He could not flatter himself that he and his State would be left to be the _last victim_. But, Mr. PRESIDENT, every other gentleman appears to admit the truth of the prefatory declaration of rights; they admit, too, that if we cannot be possessed of them otherwise, we must seize on them by force; but they refuse to give the means and the power to the President, in whom they have told us, over and over again, they repose implicit confidence. Is any one of the resolutions too imperative on the President, we will agree so to alter as to make it discretionary, if desired by any gentleman on the other side; for without their leave, we cannot now amend our own resolutions. It is my consolation, Mr. PRESIDENT, said Mr. D., and it ought to be matter of triumph to my honorable friend, the mover of these resolutions, that, whatever may be their fate, the introduction and discussion of them will have produced no little benefit. They have brought forward gentlemen to pledge themselves, in their speeches, to employ force on failure of negotiation; which, though late, is better than never. They must be allowed the merit, too, of producing the resolutions which they offer as a substitute. These milk-and-water propositions of Mr. BRECKENRIDGE will at least serve to show that something should be done, some preparations made; and therefore even to these, feeble as they are, I will agree, if more cannot be carried. But let the relative merits of the two be compared. _Ours_ authorize to call out of those militia nearest to the scene, and most interested in the event, a number not exceeding fifty thousand, and to give them orders to act, when the occasion requires it, in conjunction with the army and navy; _theirs_ authorize an enrolment of eighty thousand, dispersed over the whole Continent, without any authority to act with them, however pressing the danger, nor even to march them out of their own State. _Ours_ authorize the President to take immediate possession of some convenient place of deposit, as guaranteed by treaty, in order to afford immediate vent for the Western produce, and relief to our suffering fellow-citizens, and thereby put it out of the power of a Spanish Intendant, whether acting from caprice, or orders from his Court, to obstruct so important an outlet; _theirs_ give no such authority, but leave to the slow progress and uncertainty of negotiation that remedy, which, to delay, is almost as fatal as to refuse. The question being at length called for, on the motion of Mr. BRECKENRIDGE, for striking out the first section of the resolutions proposed by Mr. ROSS, the yeas and nays were required, and stood, 15 to 11, as follows: YEAS.--Messrs. Anderson, Baldwin, Bradley, Breckenridge, Clinton, Cocke, Ellery, T. Foster, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright. NAYS.--Messrs. Dayton, Hillhouse, Howard, J. Mason, Morris, Olcott, Plumer, Ross, Tracy, Wells, and White. On the question for striking out the remaining parts of the resolutions, the question was also taken, and carried by the same votes on each side. The question being then called for on the adoption of the amendments proposed by Mr. BRECKENRIDGE, the yeas and nays were called for, and the votes were as follows: YEAS.--Messrs. Anderson, Baldwin, Bradley, Breckenridge, Clinton, Cocke, Dayton, Ellery, T. Foster, Hillhouse, Howard, Jackson, Logan, S. T. Mason, J. Mason, Morris, Nicholas, Olcott, Plumer, Ross, Stone, Sumter, Tracy, Wells, and Wright. NAYS.--None. So it was unanimously _Resolved_, That the President of the United States be, and he is hereby authorized, whenever he shall judge it expedient, to require of the Executives of the several States to take effectual measures to arm, and equip, according to law, and hold in readiness to march, at a moment's warning, eighty thousand effective militia, officers included. _Resolved_, That the President may, if he judges it expedient, authorize the Executives of the several States to accept, as part of the detachment aforesaid, any corps of volunteers who shall continue in service for such time not exceeding ---- months, and perform such services as shall be prescribed by law. _Resolved_, That ---- dollars be appropriated for paying and subsisting such part of the troops aforesaid, whose actual service may be wanted, and for defraying such other expenses as during the recess of Congress the President may deem necessary for the security of the territory of the United States. _Resolved_, That ---- dollars be appropriated for erecting, at such place or places on the Western waters as the President may judge most proper, one or more arsenals. After the question was taken, The resolutions were referred to Messrs. BRECKENRIDGE, JACKSON, and SUMTER, to bring in a bill or bills accordingly. WEDNESDAY, March 2. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President, _pro tempore_, as the constitution provides, and the ballots being collected and counted, the whole number was found to be 18, of which 10 make a majority. Mr. Bradley had 13, Mr. Morris 3, Mr. Hillhouse 1, and Mr. Logan 1. Consequently, the Hon. STEPHEN R. BRADLEY was elected President of the Senate, _pro tempore_. _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES, and acquaint him that, in the absence of the Vice President, they have elected the Hon. STEPHEN R. BRADLEY President of the Senate, _pro tempore_. _Ordered_, That the Secretary make a like communication to the House of Representatives. The PRESIDENT communicated the credentials of JAMES HILLHOUSE, elected by the State of Connecticut a Senator of the United States for six years, commencing with the fourth day of March current; and they were read and ordered to lie on file. THURSDAY, March 3. A message was received from the House of Representatives by Mr. NICHOLSON and Mr. RANDOLPH, two of the members of said House, in the words following: "Mr. PRESIDENT: We are commanded, in the name of the House of Representatives and of all the people of the United States, to impeach John Pickering, judge of the district court for the district of New Hampshire, of high crimes and misdemeanors, and to acquaint the Senate that the House of Representatives will, in due time, exhibit particular articles of impeachment against him, and make good the same. We are further commanded to demand that the Senate take order for the appearance of the said John Pickering, to answer to the said impeachment." THURSDAY EVENING, 6 o'clock. Mr. TRACY, from the committee appointed on the subject, made the following report, which was adopted, and the House of Representatives notified accordingly: Whereas the House of Representatives have this day, by two of their members, Messrs. Nicholson and Randolph, at the bar of the Senate, impeached John Pickering, judge of the district court for the district of New Hampshire, of high crimes and misdemeanors, and have acquainted the Senate that the House of Representatives will, in due time, exhibit particular articles of impeachment against him, and make good the same: and have likewise demanded that the Senate take order for the appearance of the said John Pickering to answer to the said impeachment: Therefore, "_Resolved_, That the Senate will take proper order thereon, of which due notice shall be given to the House of Representatives." _Resolved_, That the Secretary of the Senate notify the House of Representatives of this resolution. _Adjournment._ _Ordered_, That Messrs. WRIGHT and COCKE be a committee on the part of the Senate, with such as the House of Representatives may join, to wait on the PRESIDENT OF THE UNITED STATES and notify him that, unless he may have any further communications to make to the two Houses of Congress, they are ready to adjourn. A message from the House of Representatives informed the Senate that the House of Representatives concur in the resolution of the Senate for the appointment of a joint committee to wait on the PRESIDENT OF THE UNITED STATES, and notify him of the proposed adjournment of the two Houses of Congress, and have appointed a committee on their part. Mr. WRIGHT reported, from the joint committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he informed the committee that he had no further communications to make to the two Houses of Congress. On motion, the Senate adjourned to the first Monday in November next. SEVENTH CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, December 6, 1802. This being the day appointed by the constitution for the annual meeting of Congress, the following members of the House of Representatives appeared and took their seats, to wit: _From New Hampshire._--Abiel Foster and Samuel Tenney. _From Massachusetts._--John Bacon, Seth Hastings, Nathan Read, Josiah Smith, Joseph B. Varnum, Peleg Wadsworth, and Lemuel Williams. _From Rhode Island._--Joseph Stanton, jr., and Thomas Tillinghast. _From Connecticut._--John Davenport, Calvin Goddard, Elias Perkins, John Cotton Smith, and Benjamin Tallmadge. _From New York._--Samuel L. Mitchill, John Smith, David Thomas, John P. Van Ness, and Killian K. Van Rensselaer. _From New Jersey._--John Condit, Ebenezer Elmer, James Mott, and Henry Southard. _From Pennsylvania._--Robert Brown, Andrew Gregg, Joseph Heister, Joseph Hemphill, William Hoge, Michael Leib, John Smilie, John Stewart, Isaac Van Horn, and Henry Woods. _From Maryland._--John Dennis, Joseph H. Nicholson, Thomas Plater, and Samuel Smith. _From Virginia._--Thomas Claiborne, John Clopton, John Dawson, David Holmes, George Jackson, Anthony New, John Smith, and Philip R. Thompson. _From North Carolina._--Nathaniel Macon, Speaker, Richard Stanford, and John Stanley. _From Tennessee._--William Dickson. _From the North-western Territory._--Paul Fearing. Several new members, to wit: SAMUEL HUNT, from New Hampshire, returned to serve as a member of this House, in the room of Joseph Peirce, who has resigned his seat; SAMUEL THATCHER, from Massachusetts, returned to serve as a member of this House, in the room of Silas Lee, who has resigned; and DAVID MERIWETHER, from Georgia, returned to serve as a member of this House, in the room of Benjamin Taliaferro, who has also resigned; appeared, produced their credentials, and took their seats in the House. A new delegate, from the Mississippi Territory, to wit, THOMAS M. GREEN, returned to serve in this House, in the room of Narsworthy Hunter, deceased, appeared, produced his credentials, and took his seat in the House. But a quorum of the whole number of qualified members not being present, the House adjourned until to-morrow morning, eleven o'clock. TUESDAY, December 7. Another new member, to wit, THOMAS WYNN, from North Carolina, returned to serve as a member of this House, for the said State, in the room of Charles Johnson, deceased, appeared, produced his credentials, and took his seat in the House. Several other members, viz: from New Hampshire, GEORGE B. UPHAM; from Massachusetts, PHANUEL BISHOP, MANASSEH CUTLER, and WILLIAM SHEPARD; from Connecticut, SAMUEL W. DANA and ROGER GRISWOLD; from Pennsylvania, THOMAS BOUDE; from Virginia, THOMAS NEWTON, jr., and JOHN TRIGG; from North Carolina, JAMES HOLLAND; and from South Carolina, THOMAS MOORE; appeared, and took their seats in the House. And a quorum, consisting of a majority of the whole number of qualified members, being present, the oath to support the Constitution of the United States, as prescribed by the act, entitled "An act to regulate the time and manner of administering certain oaths," was administered by Mr. SPEAKER to the new members. _Ordered_, That a message be sent to the Senate, to inform them that a quorum of this House is assembled, and are ready to proceed to business, and that the Clerk of this House do go with the said message. WEDNESDAY, December 8. Two other members, to wit: from New Jersey, WILLIAM HELMS, and from North Carolina, WILLIS ALSTON, appeared, and took their seats in the House. THURSDAY, December 9. Two other members, to wit: WALTER BOWIE, from Maryland, and THOMAS T. DAVIS, from Kentucky, appeared, and took their seats in the House. FRIDAY, December 10. Two other members, to wit: WILLIAM EUSTIS, from Massachusetts, and JOHN A. HANNA, from Pennsylvania, appeared, and took their seats in the House. SATURDAY, December 11. Another member, to wit, ARCHIBALD HENDERSON, from North Carolina, appeared, and took his seat in the House. MONDAY, December 13. Several other members, to wit: from Massachusetts, RICHARD CUTTS; from New York, THOMAS MORRIS; from Virginia, ABRAM TRIGG; and from South Carolina, THOMAS LOWNDES; appeared, and took their seats in the House. TUESDAY, December 14. Several other members, to wit: from Massachusetts, EBENEZER MATTOON; from New York, THEODORUS BAILEY; from Virginia, JOHN RANDOLPH, jr., and JOHN TALIAFERRO, jr.; and from South Carolina, WILLIAM BUTLER; appeared, and took their seats in the House. WEDNESDAY, December 15. Another member, to wit, EDWIN GRAY, from Virginia, appeared, and took his seat in the House. A message from the Senate informed the House that the Senate have agreed to the resolution of this House for the appointment of Chaplains to Congress for the present session; and have appointed the Rev. Dr. GANTT, on their part. The House proceeded, by ballot, to the appointment of a Chaplain to Congress, on the part of this House; and, upon examining the ballots, a majority of the votes of the whole House was found in favor of the Reverend WILLIAM PARKINSON. A Message was received from the PRESIDENT OF THE UNITED STATES, by Mr. LEWIS, his Secretary, as follows: Mr. SPEAKER: I am directed by the President of the United States to hand you a communication, in writing, from the President to the two Houses of Congress. And he delivered in the same, together with the accompanying documents. The said communication was read. [For which, see proceedings in the Senate of this date.] _Ordered_, That the said communication, with the accompanying documents, be referred to the Committee of the whole House on the state of the Union. THURSDAY, December 16. Two other members, to wit: LUCAS ELMENDORPH, from New York, and DANIEL HEISTER, from Maryland, appeared, and took their seats in the House. FRIDAY, December 17. Two other members, to wit: from South Carolina, BENJAMIN HUGER, and JOHN RUTLEDGE, appeared, and took their seats in the House. _Violation of the Right of Deposit at New Orleans._ Mr. RANDOLPH observed that there had been a recent occurrence, in which every member of the House was interested, though every member might not, perhaps, possess competent information respecting it. He said it would be useless in him to impress the magnitude of a subject that related to the free navigation of the Mississippi, which materially affected a district of country growing every day in wealth and importance, and which it behooved the whole United States to cherish and protect. He moved, therefore, the following resolution: "_Resolved_, That the President of the United States be requested to cause to be laid before this House such papers as are in the possession of the Department of State, as relate to the violation on the part of Spain, of the Treaty of Friendship, Limits, and Navigation, between the United States of America and the King of Spain." MONDAY, December 20. Several other members, to wit: from Vermont, ISRAEL SMITH; and from Virginia, RICHARD BRENT, and MATTHEW CLAY; appeared, and took their seats in the House. TUESDAY, December 21. Another member, to wit, JOHN CAMPBELL, from Maryland, appeared, and took his seat in the House. WEDNESDAY, December 22. Another member, to wit, JOHN ARCHER, from Maryland, appeared, and took his seat. _Violation of the Right of Deposit at New Orleans._ A Message was received from the PRESIDENT OF THE UNITED STATES, as follows: _Gentlemen of the House of Representatives_: I now transmit a report from the Secretary of State, with the information requested in your resolutions of the seventeenth instant. In making this communication, I deem it proper to observe, that I was led by the regard due to the rights and interests of the United States, and to the just sensibility of the portion of our fellow-citizens more immediately affected by the irregular proceeding at New Orleans, to lose not a moment in causing every step to be taken which the occasion claimed from me; being equally aware of the obligation to maintain, in all cases, the rights of the nation, and to employ, for that purpose, those just and honorable means which belong to the character of the United States. TH. JEFFERSON. _Dec. 22, 1802._ The Message, and the papers referred to therein, were read, and ordered to lie on the table. _The Mint._ Mr. RANDOLPH rose, in order to renew a motion which he had made yesterday, and on which--being called to the door when some objections were urged against it--he was surprised to find himself in a small minority. Understanding that the refusal to resolve itself into a Committee of the Whole on his motion for abolishing the Mint, was the effect of a desire on the part of the House to receive the report of the Director of that institution, for the past year, he would endeavor to show that the House were already in possession of competent information, and that it could not be affected by any communication which the head of that department might make. If this were a subject novel to the House, and of an undigested nature, he should readily acknowledge his motion to have been premature; nor would it, under those circumstances, have been submitted to the House. But, on examination, it would appear that the subject had been matured during the last session; that information of the most satisfactory nature had been received from the Director; and a bill actually passed the House. That information, if it were not in the recollection of every member of the House, was accessible to all of them. It stated explicitly that the machinery would not last, without repair, longer than another year--this, he presumed, had not renewed itself; that the horses were so old that it would be necessary, at the end of the year, to replace them by others--these had not, he supposed, grown younger; that the lot was too circumscribed, and this, he imagined, had not enlarged its limits; that the expense of the institution could not, by any new arrangements, be reduced below twenty thousand dollars. The Director had not only recommended a change of the site, but of the _modus operandi_ of the machinery of the Mint, by supplying the labor of horses by steam. Upon this information the House had acted last session. No general election having intervened, he must presume that no change of sentiment had taken place. He, therefore, thought he had a right to consider this subject as perfectly matured, and there being no other business before the House, hoped it would be taken up; although he was not surprised at the reluctance of those gentlemen who cherished the institution as one of the insignia of sovereignty, to act upon it. This aspect of the subject could not, however, be changed by any report of the detailed operations of the Mint. He, therefore, moved that the House, agreeably to the order of the day, resolve itself into a Committee of the Whole on the resolution to repeal so much of the laws on the subject of the Mint as relate to the establishing of a Mint. Mr. SOUTHARD was in favor of the postponement. There were now present a number of gentlemen not members at the period of discussion during the last session. They have no documents, and cannot be correctly informed. He saw no advantage in entering upon the discussion at this time, as new and additional information may be received from the report of the Director. It had been said there was no business before the House; but there was business; there was a bill upon their table, why not take that up and act upon it? Mr. RANDOLPH called for the reading of a document that would throw clear and full light upon the subject; not light of that fleeting kind that may be derived from an annual report. From this document sufficient information could be had to convince any member that we might act as well now as at any other time. [The Clerk read a report from the Director of the Mint, received during the last session, stating the real and personal property attached to the Mint; that the machinery might last for one year; that the horses may last a year; that to conduct the operations of the Mint to advantage, steam should be used instead of horses; that the lot on which the Mint is erected was too small; and that a less annual sum than seventeen or eighteen thousand dollars would not provide for the establishment.] Mr. RANDOLPH said he would state a fact, which was, that notwithstanding all the issues from the Mint, no member sees a coin. For himself he had not seen a piece of gold coined in the Mint for two years. Mr. LOWNDES said the remark of the gentleman from Virginia (Mr. RANDOLPH) was not correct, as he had seen many pieces of American coin. But he could assign a satisfactory reason for the appearance of so little gold in ordinary circulation. It was the practice of the banks to count over once a month the specie in their vaults. This trouble was considerably lessened by depositing gold instead of silver. He had been credibly assured that there was now in the vaults of the banks of the United States gold, in eagles and half eagles, to the amount of two millions of dollars.[72] Mr. DENNIS said that, if, on full inquiry, the establishment appeared to be a drain on the Treasury, he should be for abolishing it; but he should not, on immature information, be for abolishing an institution, coeval with the Government, and founded on good reasons. The reasons adduced by the gentleman from Virginia (Mr. RANDOLPH) were insufficient. So far as related to the horses, he believed there were only four employed, and the purchase of four fresh ones would be a very unimportant consideration. Another argument was drawn from the smallness of the lot on which the Mint stands. Though it might be better conducted on a more extensive lot, yet he was not satisfied, notwithstanding present disadvantages, that it might not be profitably conducted, at least so far as regarded a copper coinage. For these reasons he thought it proper to wait a few days, in order to receive information that would enable them to understand the points on which their decision may ultimately turn. The question was then taken on Mr. GREGG'S motion to postpone the subject till the second Monday in January, and carried--ayes 47, noes 28. THURSDAY, December 23. Another member, to wit, LEWIS R. MORRIS, from Vermont, appeared, and took his seat in the House. FRIDAY, December 24. Another member, to wit, WILLIAM H. HILL, from North Carolina, appeared, and took his seat in the House. MONDAY, December 27. _Case of J. P. Van Ness._ Mr. DAVIS observed that he was of opinion that a member of the House retained his seat contrary to the spirit and sense of the constitution. It therefore became his duty to offer a resolution for instituting an inquiry into the subject, in doing which he disclaimed all personal view. He then made the following motion: _Resolved_, That the Committee of Elections be, and they are hereby, instructed to inquire whether John P. Van Ness, one of the members of this House from the State of New York, returned by said State to serve as one of its members in the seventh Congress of the United States, has not, since his election as a member of this House, and since he occupied a seat as a member, accepted of, and exercised the office of a major of militia, under the authority of the United States, within the Territory of Columbia, and thereby forfeited his right to a seat as a member of this House. Mr. MITCHILL considered the point as interesting in two relations; that which involved the decision of a principle, and that which went to deprive the State, (New York,) one of whose representatives he was, of a member. For these reasons he hoped the business would not be immediately pressed. He acknowledged this was not the first intimation he had received of the contemplation of such a motion; but he had entertained a hope that the gentleman with whom it originated, had, on reflection, considered it not inconsistent with his duty to abandon it. Mr. DAVIS replied, that he felt no disposition to press a decision. He had communicated, the first day he took his seat, his ideas on the subject to certain members, the friends of the gentleman implicated by the resolution, in hopes that he would resign. He now entertained no wish to push the business. He supposed, however, that the resolution would, of course, go to the Committee of Elections. He repeated that he was governed by no personal prejudice, but entirely by a sense of duty. He concluded with saying he was in favor of the question of reference being immediately taken. But on Mr. MITCHILL repeating his desire for some delay, Mr. DAVIS agreed to let the resolution lie till to-morrow. TUESDAY, December 28. Two other members, to wit: from Virginia, JOHN STRATTON; and from North Carolina, WILLIAM BARRY GROVE, appeared, and took their seats in the House. _Letter of James McHenry._ The SPEAKER laid before the House a letter addressed to him from James McHenry, late Secretary for the War Department, containing a variety of observations on the subject-matter of a report presented to the House, on the twenty-ninth day of April last, from the committee appointed to inquire and report, whether moneys drawn from the Treasury have been faithfully applied to the objects for which they were appropriated, and whether the same have been regularly accounted for; and to report, likewise, whether any further arrangements are necessary to promote economy, enforce adherence to Legislative restrictions, and secure the accountability of persons intrusted with the public money, together with an appendix, comprising sundry explanatory statements in defence of the official conduct of the said James McHenry, whilst acting in the capacity aforesaid: the House proceeded in the reading of the said letter, and having made some progress therein, Mr. ALSTON said that the paper which the Clerk was reading appeared to him to be a very voluminous one, and that he did not think the House were bound to listen to the reading of it. He conceived them only bound to attend to such documents as might be received from public officers, or to petitions for a redress of grievances. He did not believe the paper now before the House to be one of that description, or that the House ought to take any notice of it. If the House were bound to take notice of every letter any individual might think proper to write and address to the Speaker, very little time might be left to do any other business. He concluded by saying he thought they ought to take no more notice of it than they should of any paragraph in a newspaper which might be enclosed to the Speaker. He therefore moved that the paper should not be read. Mr. STANLEY observed that he did not perceive the difference stated by his colleague; nor did he know how the gentleman could anticipate the contents of a communication before read. We shall be enabled to judge better of it when we hear it. By what inspiration could the gentleman form a judgment now? The communication appeared to him of the utmost importance. He hoped, therefore, it would be read. Mr. MORRIS could not omit making a remark or two. From the communication, so far as read, it appeared that it was charged that the character of a former public officer had been aspersed. The House ought, therefore, not only to read the communication, but also to inquire into the complaint. There was not an indecent expression in it. The writer complains that his character has been attacked; he thinks unjustly attacked. It will be the height of injustice to refuse him an opportunity of being heard. The SPEAKER said that it was a rule of the House that when the reading of a paper is called for, it shall be read, unless dispensed with by general consent. Mr. RANDOLPH said he wished only to observe, that there was but one principle (and that had been stated by the Speaker) on which these papers ought to be read. Any member had a right to call for the reading of papers. To him, however, it appeared that there was no occasion for inspiration to perceive that the papers, so far as read, were in a high degree indecent, unworthy of any man who had held, or ought to hold, an office under Government, and derogatory from the dignity of the House. Members were cited by name; insults were offered to individual members; a committee was divided into different sects; on one class illiberal calumnies were thrown, while the other class was shielded from reflection. Was this decent or indecent? He congratulated himself that he differed as widely on this subject as he did on others from gentlemen. Mr. MORRIS said, however widely he might differ on this as well as other subjects from the gentleman from Virginia, he believed his own ideas of what was decent or indecent as correct as those of that gentleman. The letter states that a report had been made during the last session implicating the character of the writer. It further states that certain gentlemen on the committee did not concur in the report. This the writer knew from the debates upon the report. He therefore thought it his duty, in vindicating himself, to exonerate those members from censure. Was this indecent? He conceived not. Mr. M. said that when he had observed that there was not an indecent expression in the letter, he meant that there was no such expression applied to the House collectively. He did not mean to say there were no charges against individual members. But if there were charges against individual members, that was no reason for the House refusing to hear it. That could only be done when charges were made against the House in its collective character. The SPEAKER read the rules of the House that applied to the case before them. Mr. ALSTON said he only rose to notice the observation of his colleague, (Mr. STANLEY,) who supposed he saw the inside of the communication before it was presented. This he denied. He had grounded his motion exclusively on what he had heard read. Mr. BACON was at a loss to decide on the propriety of reading or not reading these papers. He perceived that they contained not only a complaint, but a high charge against a committee of the House, stating that the major part assumed to act exclusively upon the business assigned to the whole committee, without consulting the other members. This was a high charge. Whether proper, or regularly made, he did not know. It was rather his opinion that the House ought to proceed in reading the papers, and afterwards to pass proper order on them. The SPEAKER declared the rule for reading imperative, and Mr. ALSTON withdrew his motion; on which the Clerk proceeded in the reading, which was continued for more than an hour. WEDNESDAY, December 29. _Case of John P. Van Ness._ Mr. DAVIS called up his resolution instructing the Committee of Elections to inquire whether Mr. VAN NESS had not forfeited his seat, by accepting the appointment of Major in the Militia of the Territory of Columbia. Mr. VAN NESS said that, so far as the decision of the House might affect him personally, he felt little concern; but, so far as it affected him as a representative of an important State, he was not so indifferent. He had no objection whatever to the proposed inquiry being made. As it involved the decision of an important principle, it deserved great attention. He had no doubt of the inquiry being made with that candor and fairness which, in most cases, characterized the proceedings of the House. He was far from imputing any impure motives to the mover or seconder of the resolution. It would be as derogatory to him to impute, as in them to entertain, any views dishonorable or base. He had risen barely to state his wish that an inquiry might be made. Mr. ELMENDORPH proposed a verbal amendment, which was not agreed to. The resolution was then adopted without a division. WEDNESDAY, January 5, 1803. _Cession of Louisiana to France._ Mr. GRISWOLD called up his resolution respecting Louisiana, laid on the table yesterday, as follows: _Resolved_, That the President of the United States be requested to direct the proper officer to lay before this House copies of such official documents as have been received by this Government, announcing the cession of Louisiana to France, together with a report explaining the stipulations, circumstances, and conditions, under which that province is to be delivered up: unless such documents and report will, in the opinion of the President, divulge to the House particular transactions not proper at this time to be communicated. The question was put on taking it into consideration, and carried--yeas 35, nays 32. Mr. RANDOLPH observed that the discussion on this motion might embrace points nearly connected with the subject referred to a committee of the Whole on the state of the Union, and which had been discussed with closed doors. He therefore thought it would be expedient to commit this motion also to the Committee of the Whole on the state of the Union, to whom had been committed the Message of the President respecting New Orleans. Mr. GRISWOLD hoped the motion would not prevail. He did not see what argument could be urged in favor of it. The resolution related to a public transaction stated on their journal. He did not think that any thing which ought to be kept secret could be involved in the discussion of it. What is its purport? It only requests the President to furnish documents respecting "the cession of the Spanish province of Louisiana to France, which took place in the course of the late war," and which the President says "will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the Legislature connected with this subject." Are not, said Mr. G., these papers important to the House? Does not the President refer to them as important to enlighten us? He speaks of the cession as a fact. He took it for granted the President would not make the declaration unless he had official information of its truth. Ought not the House to be possessed of all the important information in the power of the Executive to give? It certainly ought. Every gentleman would agree that the House ought to have all the information. If the information is confidential, it will be received with closed doors. But the question, whether the House shall obtain this information is a public question; and there was not a man within those walls, or in the United States, who would not say that the Legislature ought to possess every information on a subject so deeply interesting. Why, then, refer this resolution calling for information to a committee? Why postpone it? They had but a short time to sit. More than half the session was already elapsed. Is it not time to gain information? Mr. G. said, he would venture to declare that no subject so important could be brought before the Legislature this session. Ought we not, therefore, on such a subject, to take immediate means to gain information? He hoped the House would not agree to the reference, which could have no effect but to put the resolution asleep, and deprive the Legislature of information they ought to possess. Mr. RANDOLPH said, as he had expressed his disinclination to discuss a proposition with open doors which would trench on the decision of the House to discuss a subject to which it intimately related with closed doors, it could scarcely be expected that he should indulge the gentleman in entering into arguments calculated to carry him from his purpose. But he denied that the adoption of his motion would be a refusal to give information. He well knew that there was nothing easier than to declare the subject vastly important, and to make an eloquent harangue upon it, and to infer that those who did not immediately agree to the resolution were averse to giving information, and to going into a discussion of the merits of the main subject. It would, however, not be expected that he should enter upon these on a preliminary resolution. But he would assure the gentleman who had submitted this resolution, that, so far from indulging any disposition to be dilatory in his attention to this important subject, he came yesterday prepared to make a motion that the House should go into a Committee of the Whole on the subject, which motion he should have then made but for that offered by the gentleman from Connecticut. Mr. RUTLEDGE said that, did he consider that the giving publicity to any information on this subject would in the least interfere with the constitutional functions of the President, he would be the last man to support the resolution of his friend from Connecticut. But he could not conceive that this could be its effect. What were they about to ask? They were about to ask, in respectful terms, the President for information relative to what he states as a fact; so much information as he may think it expedient to give. Surely there would be no impropriety in this. The cession of Louisiana had been stated in all the public prints of Europe and this country, and on the floor of the British Parliament. This cession had been made a year ago, and, notwithstanding the elapse of this time, we have received no official information on this subject. Is it not natural for the people to ask why Congress do not call for this information? Will they not say the President has done his duty in stating the fact? Upon this subject, so very important, are they to be kept in the dark? Mr. R. could not conceive any turn of the debate on this resolution that could produce a discussion of the merits of the Message referred to the Committee of the Whole. If the President shall say the information he gives us ought not to be made public, he would answer for himself, and he believed he could answer for his friends, that they would not seek a public discussion. And if the information is imparted without confidence, the House, if it see fit, can itself control a public discussion. Mr. R. concluded with saying that, in the present case, he was for deciding on the resolution with open doors. Mr. S. SMITH thought this point ought in a great measure to be determined by the custom of the House in similar cases. He did not assert it as a fact, but, from recollection, he believed it was so, that when a call was made for papers in the case of the British Treaty, the question was referred to a Committee of the Whole, and there fully discussed. According to his recollection, one side of the House called for papers on the principle that, after negotiations were terminated, the House had a right to information before they made a grant of money under a treaty, but acknowledging that a call for such information might be improper during a pending negotiation. He was one of those who thought it proper, on that occasion, that the House should have the papers; but he also thought it improper, and had then so declared, to call for papers during a pending negotiation. Whether in the present instance a negotiation was pending or was not, he did not know. He was, therefore, for postponing the resolution till this was known to the House. Mr. DANA said that he did not know, nor had he heard from any quarter, that there was any negotiation depending respecting the cession of Louisiana. The President has informed us of the fact. All that the resolution asks are official documents respecting the cession, with the stipulations, circumstances, and conditions, under which it is to be delivered up. He could not see the impropriety of such a request. But if the President deem it improper to furnish the information, we do not assert our right to demand it. There are two views in which this information may be important; that which may throw light on the boundaries of the province as ceded; and another, whether the province is to be ceded to the French in the condition it shall be in when actually delivered up, or whether subject to the conditions in which it was held according to treaty by Spain. This is important information to guide our deliberations; information not depending upon an existing negotiation, but upon a negotiation decided. Mr. GRISWOLD called for the taking of the yeas and nays. Mr. SMILIE was in favor of the widest publicity in every case where it would not prove injurious; and there were, in his opinion, very few cases in which it ought not to take place. He could not, however, withhold one remark; that gentlemen should object to the mode now proposed, a mode similar to that adopted in like cases, greatly surprised him. [He here quoted the proceedings of the House on a call for papers in the case of the British Treaty.] That case furnished a precedent, by which it appeared that a motion for information was referred to a Committee of the Whole for a more full discussion. Mr. DAVIS observed that, as he lived in that district of country most materially affected by the subject before the House, he thought it proper to express his opinion on the motion. He said he did not know what reason could be assigned for the motion, but that expressed by the gentleman from Virginia, to go into a Committee of the Whole in private, to propose certain resolutions that required secrecy. Mr. D. said it had been his purpose yesterday to have submitted certain resolutions, which he should have done, but for the motion of the gentleman from Connecticut calling for information; after it was made he was willing to wait until all information was obtained that could be furnished. Suppose we go into a Committee of the Whole, what light can we expect from their deliberation? We can gain nothing. But let the call for information prevail; let us draw from the President such information as he may think it proper to give; and let us then refer that information to a Committee of the Whole, and they will be able to deliberate wisely. What use can it be to take a step from which no benefit can be derived? As to the call on the President, he will not give us any thing that is improper. How does the gentleman from Virginia know what light this information may throw on the subject? Is he prepared to say it will throw no light on this subject? If he is, Mr. D. said he himself was not. He might have ways of acquiring the secrets of the Cabinet; but for himself he had no such opportunities. Mr. D. concluded by declaring himself against the motion. Mr. RANDOLPH was compelled again reluctantly to trespass on the indulgence of the House, to assure them, and the gentleman from Kentucky, that his motion did not comprehend a refusal to agree to the call for information made by the gentleman from Connecticut. After going into committee, they might, perhaps, either by a unanimous vote, or by that of a majority, agree to the resolution. Benefit might arise, and no mischief possibly could, from going into a Committee of the Whole. Mr. HUGER must acknowledge that he could not understand the object of those who were for refusing this information. If they had any objection to asking the information, let them inform us what it is. And if they have no objection, why go into a Committee of the Whole; which, if gone into, must be with closed doors? The question alluded to in the British Treaty was very different from this. In that case, one part of the House thought they had a right to demand the information of the Executive, and that he was bound to deliver it; while the other part of the House neither acknowledged the right to demand, nor the obligation to obey. The present case was entirely different. We ask nothing but what the Executive shall think proper to furnish, we are as cautious as we can possibly be; we even go so far as to put words in the President's mouth, if he shall think there is any impropriety in giving the information. Gentlemen certainly have confidence in the Executive, that he will tell us if the information is improper to be furnished. Mr. H. could not but express his surprise that the House had received no official documents on this important subject. He could not comprehend why Congress should not know the contents of the convention. If proper, we ought to have these documents; and if not proper, we ought to have a reason for it. The country was in a state of serious alarm; and it might have a bad effect if something was not immediately done, and a disposition exhibited to act, in case it should prove necessary. Mr. SMILIE said the gentleman, from South Carolina (Mr. HUGER) was incorrect, when he stated that, in the case of the British Treaty one set of gentlemen had contended for the right of the House to demand papers. If this had been so, the resolution then proposed would have been peremptory; whereas the fact was that it was qualified by an exception of such papers as the President might consider it improper to furnish. [Mr. SMILIE here quoted the journals, which confirmed his remark.] Mr. GREGG said it would be allowed that this was an important resolution, which related to an important subject. This was, he believed, the first instance in which a resolution allowed to be important, had been refused a reference to a Committee of the Whole. On this principle his vote would be decided. If the motion did not prevail he should then move that the resolution should be printed before it was acted upon. Mr. GRISWOLD would not object to the reference if the object were to obtain a more full discussion of the resolution. He was generally in favor of such references, as the discussion was conducted in a Committee of the Whole on a freer scale than in the House. On this principle it was, that the call for papers respecting the British Treaty was referred to a Committee of the Whole. But it had not been referred to a Committee of the Whole on the state of the Union. He, however, understood the object of gentlemen to be to refer the resolution to a Committee of the Whole, for the purpose of discussing it with closed doors. If that were the object, he should oppose it. For, he would say, nothing of secrecy could arise out of the discussion of this resolution. He did not wish that a resolution so important should be referred to a secret committee. If gentlemen mean to deny us this information, let them deny it in public. Let them not do it in a secret committee. Surely they can have no such unworthy motives. As to the case of 1796, under the British Treaty, the ground of opposition was this: It was claimed that the House had a right to decide upon a treaty, and to establish this point papers were called for. And on the decision of the question, on the granting or refusing the application, depended the establishment of the right of the House to participate in the treaty-making power. This right was denied by those who voted against the call. But in this case there was no difference as to the power of the House. The President in his Message had expressly stated that the cession would have weight in the deliberations of the Legislature. This, then, being a case in which it is proper to legislate, shall we go to work blindfold, without having all the information possessed by the Executive, that it is proper we should possess? What do we know respecting the cession? Though made for more than one year, we have no information, except that contained in the Message, which barely mentions the fact. For these reasons Mr. G. hoped the motion would not prevail, as its avowed object was not for a more full discussion, but for the purpose of going into a secret committee. If gentlemen mean to deny us the information we ask, let the denial be public; and if they grant it, there is no reason against their doing it publicly. Mr. RANDOLPH.--The gentleman from Connecticut tells us that this subject is referred to in the Message of the President, and that on it we are called by him to legislate. That subject has been referred to a Committee of the Whole; and yet, he says, it is improper to refer this resolution to the same committee. This may be logic; but I confess, if it is, I do not understand it. He says if the object of reference be for a more ample discussion, he will be in favor of it; but not so, if it be to send it to a secret committee. Does the gentleman mean to insinuate that the debates of this body are for the entertainment of the ladies who honor us with their presence; or that as soon as our doors are shut, our ears also are shut to all useful and necessary information? If the doors shall be closed, cannot we still agree to the resolution? However gentlemen may persist in the course they have taken, I shall not permit the warmth of their remarks, or that of my own feelings, to betray me into a debate on points which the House have determined shall be discussed with closed doors. For my own part, I am ready to declare that I have arguments to advance, that it is not my wish to advance with open doors. Mr. BACON said the resolution simply called for information respecting the cession of the province of Louisiana to the French. He did not see the end to be answered by committing it. Is there any doubt that we shall not stand in need of information when we come to discuss points connected with this subject? It appeared to him they would. He was therefore against the reference. Mr. S. SMITH.--The gentleman from Connecticut has candidly admitted that it is customary in such cases to make a reference; that he is not in favor of the reference being made to a committee with shut doors; but if the object were to obtain a free discussion, he would not object to it. He is told that a full and free discussion cannot be had without such a reference, and yet he persists in his hostility to the motion. He had been told so by the mover, and common sense would have told him so at first; yet he is for taking advantage of the mover, and for shutting out the arguments he has to urge. The gentleman is mistaken in his statement of the motives of the different sides of the House in the discussion on a call for papers, in 1796, when he represents one side as claiming a right to participate in the treaty-making power. He recollected it had been charged upon them; but they had denied it. We contended, said Mr. S., that when a treaty was formed, appropriating a large sum of money, we had a right to appropriate or not to appropriate the money; but we never assumed the right to say whether the treaty was concluded or not. Afterwards, gentlemen themselves, if he recollected right, moved a resolution that it was expedient to carry the treaty into effect, by which they did admit the right of the House. Mr. S. said he had no previous knowledge of what the gentleman from Virginia meant by his motion; he might perhaps wish to amend the resolution; but when he says he has arguments that he cannot urge without shut doors, he trusted that indulgence would be allowed him, or there would be a denial of justice. Mr. DANA said, there was a magic of language, to those unaccustomed to parliamentary language, in the House resolving itself into a committee, and that committee returning itself back into the House, both composed of the same members, that made the proceedings of public bodies appear ridiculous. But there were substantial benefits derived from the observance of these forms. There was a fuller and freer discussion; every member spoke as often as he chose, and they enjoyed the Speaker's advice. There were, besides, two discussions and decisions, instead of one. He admitted, therefore, the propriety of such procedure in all cases where there was an important principle involved. But in this instance there was no important principle to discuss. There was an important principle involved in the famous question of 1796. It was therefore right to refer it to a Committee of the Whole. He did not know what principle was to be discussed on this reference, unless it was the want of information. This he most sensibly felt; and those gentlemen who also felt it, might, he thought, be indulged by those who possess all information on the subject. If any gentleman, however, will say that any important principle is involved in the resolution, he was ready to go into Committee of the Whole, though not with closed doors. The question was then taken by yeas and nays on Mr. RANDOLPH'S motion, to refer the resolution of Mr. GRISWOLD to a Committee of the Whole on the state of the Union, and carried--yeas 49, nays 39, as follows: YEAS.--Willis Alston, John Archer, Theodorus Bailey, Richard Brent, Robert Brown, William Butler, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, John Dawson, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, William Hoge, James Holland, David Holmes, George Jackson, Michael Leib, David Meriwether, Samuel L. Mitchill, Thomas Moore, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Randolph, jr., John Smilie, John Smith, (of New York,) John Smith, (of Virginia,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abraham Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Isaac Van Horne, and Thomas Wynns. NAYS.--John Bacon, Phanuel Bishop, Thos. Boude, John Campbell, Manasseh Cutler, Samuel W. Dana, John Davenport, Thomas T. Davis, John Dennis, Wm. Dickson, Calvin Goddard, Roger Griswold, William Barry Grove, Seth Hastings, William Helms, Joseph Hemphill, Archibald Henderson, Benjamin Huger, Samuel Hunt, Thomas Lowndes, Ebenezer Mattoon, Lewis R. Morris, Thomas Morris, James Mott, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, William Shepard, John Cotton Smith, John Stanley, Benjamin Tallmadge, Samuel Tenney, Samuel Thatcher, Thos. Tillinghast, George B. Upham, Peleg Wadsworth, Lemuel Williams, and Henry Woods. On motion of Mr. GRISWOLD, the House immediately went into Committee of the Whole on the state of the Union. Mr. RANDOLPH rose, and observed that he held in his hands certain resolutions connected with the Message of the President, relative to the late proceedings at New Orleans, the discussion of which had been ordered to be carried on with closed doors. He asked the decision of the question, whether, previously to offering his resolutions, the doors ought not to be closed? The resolutions he meant to submit grew out of the Message. If the House, however, insisted upon their being then read, he had no indisposition to read them. The CHAIRMAN considered the committee as incompetent to clearing the galleries. He thought it must be the act of the House. Mr. DAWSON inquired if the same rules that applied to the House, did not also apply to Committees of the Whole? Mr. RANDOLPH called for the reading of the President's Message respecting New Orleans. Mr. GRISWOLD said there was other business, not requiring secrecy, referred to the committee. Mr. RANDOLPH repeated his call for the reading of the President's Message. The CHAIRMAN asked what Message? Mr. RANDOLPH replied, the confidential Message. Mr. GRISWOLD said that could not be read with open doors. The CHAIRMAN said the doors could not be closed without an order of the House. Mr. S. SMITH observed that it had been customary to clear the galleries before the House went into committee. To save time, he would move that the committee should rise, in order to obtain an order of the House to that effect. Mr. GRISWOLD hoped the committee would not rise. The business he had proposed was of a public, not of a private nature. It was also of a pressing nature, and ought not to be postponed for any other business. Mr. DANA hoped, indeed, for the honor of the House, they would not exhibit the spectacle of wasting time in going into committee and then coming out of it without doing any thing, but would proceed to the public business. Mr. RUTLEDGE.--The gentleman from Virginia holds in his hands resolutions that require secrecy. After deciding on the motion of the gentleman from Connecticut, he will not be precluded from offering these resolutions. Mr. EUSTIS said if the House had resolved itself into a committee for the express purpose of taking into consideration the resolution of the gentleman from Connecticut, it would be proper to give it the preference over any other business; and in that case he should have been as ready at this moment as at any other to offer his objections to it. But if it were understood that the House had resolved itself generally into a Committee on the state of the Union, one gentleman from Virginia having made a motion, and another gentleman from Connecticut having afterwards made another motion, that made by the last gentleman being junior in point of time ought to be last attended to. The other gentleman's motion was first in course; and if the gentleman who offered it desired the galleries to be cleared, he had an undoubted right to an order to that effect. Mr. MACON (Speaker) remarked that a Committee of the whole House was one committee, and a Committee of the whole House on the state of the Union another committee. They were distinct committees. The last was never formed for special purposes. He did not recollect that this had ever been done. Whereas the other committee was always formed for a special purpose. The difficulty in this case had arisen from referring the confidential Message to a Committee of the Whole on the state of the Union. He believed it would be well to rise, and separate the two subjects that had been referred to the Committee on the state of the Union. Mr. GRISWOLD did not understand what the gentleman from Massachusetts meant by priority of motion. The Chairman had determined that the motion of the gentleman from Virginia was not in order, as it could not be submitted to a public committee. After this disposition of that motion, none remained before the committee other than his own. In point of priority, he rose, therefore, to have his resolution then decided upon. With regard to the proposition of the honorable Speaker, he did not see any reason for it. Was it not as well to decide on this resolution in this committee as in any other committee? Why, then, rise for the purpose of referring it to a secret committee? Mr. S. SMITH said, the gentleman from Massachusetts meant by his remarks that the Message of the President had precedence. The gentleman from Connecticut was only now urging what had been decided against him in the House. He thinks he has now an advantage, and presses it. Mr. S. said, he had not a doubt that the gentleman from South Carolina (Mr. RUTLEDGE) is very sincere in his opinion, that, if we will agree to submit all power to them, they will indulge us by agreeing to certain subordinate points. But gentlemen will excuse us. We have already taken great pains to divest them of power, and we are not yet disposed to return it into their hands. We are of opinion that the Message ought to be discussed with closed doors; that is the intention of the motion; let us not take advantage of those who have arguments to offer which they wish not to submit with open doors; let the committee rise, and the galleries be cleared. Mr. DANA, in one point, fully agreed with the gentleman from Maryland. They had taken great pains to get power. But he regretted that any political party allusion whatever had been made on this subject. He had supposed it so important, so deeply interesting to all America, that he had hoped all spirit of party would have slept during our deliberations on it; and that we should have shown that we entertained but one sentiment, and were ready, if necessary, to extend one arm in defence of our invaded rights. Mr. L. R. MORRIS expressed his disagreement with the Speaker on a point of order-- When the question was taken on the rising of the committee, and carried in the affirmative--ayes 49, noes 37. The committee accordingly rose, and the Chairman reported that they had come to no resolution. A motion was made to adjourn, on which Mr. GRISWOLD called the yeas and nays; which were--yeas 38, nays 51. _Navigation of the Mississippi._ [SECRET SESSION.] The House was then cleared of all persons, except the members and the Clerk: Whereupon the House resumed the consideration of a confidential communication from the PRESIDENT OF THE UNITED STATES, received the thirty-first ultimo. _Ordered_, That the Committee of the whole House on the state of the Union, to whom was referred the Message of the PRESIDENT OF THE UNITED STATES of the twenty-second and thirtieth ultimo, be discharged from the consideration thereof; and that the said Message, together with the documents transmitted therewith, be committed to a Committee of the whole House to-morrow. On a motion made and seconded that the House do come to the following resolution: _Resolved_, That this House receive, with great sensibility, the information of a disposition in certain officers of the Spanish Government at New Orleans, to obstruct the navigation of the river Mississippi, as secured to the United States by the most solemn stipulations. That, adhering to the humane and wise policy which ought ever to characterize a free people, and by which the United States have always professed to be governed; willing, at the same time, to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of His Catholic Majesty; and relying with perfect confidence on the vigilance and wisdom of the Executive, they will wait the issue of such measures as that department of the Government shall have pursued for asserting the rights and vindicating the injuries of the United States; holding it to be their duty, at the same time, to express their unalterable determination to maintain the boundaries, and the rights of navigation and commerce through the river Mississippi, as established by existing treaties. _Ordered_, That the said motion be referred to the Committee of the whole House last appointed. THURSDAY, January 6. _Cession of Louisiana._ [PUBLIC SESSION.] Mr. GRISWOLD moved that the House should resolve itself into a Committee of the Whole on his resolution respecting Louisiana. Mr. DAWSON was opposed to the motion, for reasons before assigned. Mr. GRISWOLD said the gentleman did not understand what he had proposed. It had been the wish of gentlemen to separate the consideration of his resolution from other subjects referred to the Committee of the Whole on the state of the Union. For which purpose he had been willing to refer it to a Committee of the Whole. But he was averse to referring it to a secret committee; as he did not perceive its connection with any subject that required secrecy. The discussion on it ought, in his opinion, to be public. It was not necessary for him to repeat that it was of a pressing nature. It respected the obtaining information on a subject, he would say, of greater importance than any which could come before Congress that session. One third of the session was gone, and yet the Legislature had no information before them. He hoped there was no disposition entertained by gentlemen to embarrass this proposition with points unconnected with it. The proposition was extremely simple. Called upon by the President to legislate on the subject of the cession of Louisiana, we do not know the precise state of that cession. To legislate correctly, we want to be informed of all the circumstances. If gentlemen are disposed to deny us this information, let the denial be public. Do not let them refer this motion to a secret committee, where they may deny us the information we ask on reasons which we cannot divulge. Mr. G. concluded by calling for the yeas and nays. Mr. S. SMITH asked if this were not the precise motion decided yesterday by the House? He thought it had been referred to a Committee of the Whole. He had considered it as having taken that course. When we go into committee the gentlemen will see whether we shall refuse them the information. Perhaps we shall see that it is of such a nature as we ought to possess. He did not himself know how that was; nor did he mean to commit himself by any remarks which he had made. He trusted gentlemen would remember their vote yesterday, and not suffer themselves to be put out of their course by this extraordinary mode of conducting business. Mr. LOWNDES demanded whether, even if the motion were the same, there was any impropriety in putting it again to-day; and whether it were not perfectly consistent with the rules of order to go into a committee, and take up the resolution? If there ever was a resolution offered to that House which ought to obtain a unanimous vote, it was that of his honorable friend from Connecticut; which proposes simply the calling for such information as the President might see fit to give on a most important subject that had excited the sensibility of the whole nation. The President himself, in his Message, alludes to the subject as one which may require Legislative interposition, and gentlemen persist in refusing us this information. It was a most extraordinary circumstance in the annals of the United States, that, notwithstanding the magnitude of the cession of Louisiana, the length of time since it was made, and the necessary consequence of having a new and powerful neighbor on our frontier, we had yet no official information on the subject. The President in his Message really tells us nothing. He says "the cession of the Spanish province of Louisiana to France, which took place in the course of the late war,"--this we had been told long before by the public prints, and in a discussion before the British Parliament--but he goes on and says--"will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the Legislature connected with that subject." To this the understanding of every schoolboy is competent. It was really surprising that gentlemen should wish to reject such a call as this. It was not probable that the President had been so unmindful of his duty as not to have demanded an explanation through our Ministers at the Court of Spain, or at Paris. If he has this information, and it is of a nature proper to be known to us, we ought immediately to obtain it, that we may not be slumbering at our posts on an infraction of our rights. Mr. L. suspected gentlemen had not correctly attended to the resolution. It only requests the President to lay such information before the House as he may think proper. Are gentlemen then afraid to trust to the discretion of the President? Are they apprehensive lest he should communicate that which is improper? He hoped they had more confidence in the Executive. He thought this call should precede any resolutions. He could not disconnect the shutting of the port of New Orleans from the cession of Louisiana. There appeared to be a natural connection between these two events. He was afraid that the shutting the port was ominous of the disposition of Spain to cede the province to France, independently of any encumbrances she may have imposed upon herself. He was afraid France in this transaction would consult her interests and convenience, and not our rights. We well knew the grounds on which that nation interpreted treaties, and we had no reason from that knowledge to repress our fears. An observation of the gentleman from Virginia had given him great uneasiness. That gentleman had told us, if Spain had ceded Louisiana to France she had a right to cede it. This Mr. L. was not prepared to say. He did not think Spain had a right to give to America what she pleased; much less give her a new neighbor, under circumstances different from those by which she held the province. He was not, however, then disposed to discuss the abstract question involved in this subject. He trusted the resolution calling for information would be agreed to. The House need not fear that, in asking this information, they would not speak the sense of the people; and, if other measures were necessary, they would also, in adopting them, speak the sense of the nation. Mr. BACON said it was not uncommon to hear of extraordinary occurrences in that House. One mode of reasoning yesterday had great weight, that asserted a connection between the resolution and the subject of New Orleans, which had been taken up and referred to a committee with closed doors. One subject appeared to him to be not only nearly connected, but to form an essential part of the other. For what purpose this resolution should be separated from the general subject, he could not conceive. Why do we want information, but that we may have a more clear view of the general subject? He could not see any detached purpose for which it was required. Why then divide it into little detached parts? Until he could hear reasons for such a division, he should be against the reference. Mr. HEMPHILL observed that the gentleman was mistaken in what passed yesterday. The gentleman from Maryland had first stated the subjects as similar; that ground was afterwards abandoned, and they were considered as distinct. There were only two points connected with the subject before the House in which documents could be required or secrecy necessary. The one related to the cession of Louisiana; the other to the shutting the port of New Orleans. The former, though not referred to a committee, was as important as the latter, which had been referred. In the last case we deemed it important to have and request papers. The resolution before them related to the first point; it had been deemed of sufficient importance to refer it to a committee, and this afforded good reasons for calling for papers respecting the cession. He begged leave to refer to the Message, which says the cession "will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the Legislature connected with that subject." The House will perceive that the language of the Message is hypothetical--the words are, "if carried into effect." How then can we deliberate on this subject, unless we know the degree of probability there is, that it will be carried into effect? A knowledge of the circumstances necessary to ascertain this, appeared to be absolutely indispensable. If likely to be carried into effect, the next question is, as to the time when it will be carried into effect. When these two inquiries were solved, another naturally offered itself: Is France to take the province subject to existing treaties, or as she shall receive it at the time of delivery? All these circumstances it was necessary for Congress to know, before they could act correctly. What necessity there was for secrecy in the discussion of this resolution, Mr. HEMPHILL could not conceive. All the information we have on the subject is contained in the President's Message, which every person in the United States knows as well as we do. It appeared to him that when their deliberations turned on facts which every body knew, they ought to be public. His ideas of secrecy were these: that policy might require certain facts to be kept secret for a time; but, when made known, their arguments on them ought not to be secret. In this opinion he was strengthened by the rule of the House. [Mr. H. here read the rule on that point, which prescribes that the galleries shall be cleared whenever a confidential communication shall be received from the President, or whenever the Speaker or any other member shall inform the House that he has communications to make which he conceives ought to be kept secret.] Mr. H. asked on which branch of this rule could the arguments of gentlemen be predicated? The President had not sent them a confidential communication, nor had any member said he had communications to make which he conceived ought to be kept secret. The information referred to in the rule meant facts, and not arguments drawn from facts. He concluded by saying he saw no occasion whatever for discussing this proposition with closed doors. Mr. DAWSON.--The gentleman from South Carolina (Mr. LOWNDES) says there is a material connection between the shutting the port of New Orleans and the cession of Louisiana. After, then, that part of the discussion which related to New Orleans had been ordered to be conducted with shut doors, how proper was it in him to introduce into debate a subject intimately connected with it? His opposition to the present motion did not arise from an indisposition fully to discuss the subject to which it referred; but from an indisposition to delay the discussion of the motion offered by his colleague. Against the present motion he should vote, because it promised nothing useful, and might be mischievous. We have been told that this subject is important and pressing. That it was important he felt; but he did not believe it was pressing. He could say, if the time should ever arrive when it became that House to act, this was not the time. When the time did arrive, he was prepared to act. Gentlemen were very anxious on this subject. He rejoiced to witness their anxiety. But he and his friends were not now to hear who were the friends of the Western country. The people of that country doubted not the protection of the Government. They were warmly attached to the Government, and knew that every thing would be done, that ought to be done, to protect and defend their rights. Mr. BACON said, if he understood the gentleman from Pennsylvania, (Mr. HEMPHILL,) he perfectly agreed with him in opinion, that this resolution was connected with the subject of New Orleans. He agreed with him as to their inseparable connection. But the only difference was that they inferred opposite consequences from the same premises. He, Mr. B., contended that the resolution made a part of the same general subject, and ought not to be divided from it. They say it ought to be divided. Mr. HEMPHILL, replied that he had spoken as plainly as he could. He had said the subjects were distinct. Mr. GODDARD.--The gentleman from Massachusetts yesterday told us the call for information ought to be public, though the information itself should be secret. This reasoning had been satisfactory to him then; he had hoped it would have also proved so to-day. But it appears that he is now for sending us to a secret committee. Mr. G. said in his opinion, the call ought to be public, whatever the nature of the information might be. This information gentlemen will either deny or grant. They say it is not to be denied. Why then go into a committee? And if granted, why not grant it without assigning reasons, as well as with assigning them? Are we to be told by the gentleman from Virginia, there is no occasion for this call; that we have information enough? How does that honorable gentleman get his information? If from the cabinet, are we, the representatives of the people, to obtain it from him? Surely this will be degrading to our characters. We may believe it is true as coming from him, but, as representatives, we should spurn at receiving it in such a channel. We want official information, but gentlemen say they want to go into secret committee on this resolution. What will be the good of this? Though he could not say what was done in secret yesterday, he might say what had not been done. They had done nothing; and if they went into secret session again, the consequence would be the same. Mr. RANDOLPH felt extremely reluctant to rise in this stage of the discussion, but he deemed it time to repel insinuations so frequently thrown out as perhaps to gain some credit, if they were permitted to pass entirely unnoticed. We are averse to take up the motion of the gentleman from Connecticut, and wherefore? Because, as our opponents would fain have it believed, we are insensible to the vast interest affected by the obstruction of the Mississippi? No, sir, because we are alive to this delicate and momentous subject; because we wish to act upon it; because we wish to go into committee on the confidential Message of the Executive; because the information required by the motion before you is not necessary to determine us in the course which we ought, and, I trust, will pursue; and because these preliminary questions, whatever be their object, are, in effect, only calculated to retard and to embarrass the decision of this House on this great question. Sir, I am content that gentlemen should repeat after each other the trite observations which have been so often reiterated of the magnitude of the object in question. I am content that they should make the best possible display of their ardor on this occasion. But wherefore this exhibition of a zeal so inordinate as to arrogate to itself all sensibility to the national welfare? Since gentlemen insist upon it, since they provoke the discussion, I must request to be indulged in some remarks on the history of this subject. And in reply to the gentleman from Connecticut, (Mr. GODDARD,) I must be permitted to observe that such of my information as may have been derived from the Executive is equally accessible to every member of this House, and I believe to every reputable citizen in the Union, who chooses to apply for it. That, however, which I am about to present, is derived from a source accessible to the whole world. It is to be found in a document of inestimable value, (the debates of the Virginia Convention in 1788,) and might truly be said to be official. It is an account given in his official character of member of Congress, and under the old confederation, by that able and eminent man, that faithful and illustrious public servant, the late Governor of Virginia, to the Convention of that State, at their requisition. At his own suggestion the Legislature of the State had declined to insist upon it. To the Convention it was given, (however reluctantly,) as to a paramount authority. [Here Mr. E. read Mr. Monroe's speech.][73] "After some desultory conversation, Mr. MONROE spoke as follows: Mr. Chairman--My conduct respecting the transactions of Congress upon this interesting subject, since my return to the State, has been well known to many worthy gentlemen here. I have been often called upon before this, in a public line, and particularly in the last Assembly, whilst I was present, for information in regard to these transactions; but have heretofore declined it, and for reasons that were held satisfactory. Being amenable, upon the principles of the Federal compact, to the Legislature, for my conduct in Congress, it cannot be doubted, if required, it was my duty to obey their directions; but that honorable body thought it best to dispense with such demand. The right in this Assembly is unquestionably more complete, having power paramount to that; but even here I could wish it had not been exerted as I understand it to be, by going into committee for that purpose. Before, however, I enter into this subject, I cannot but observe, it has given me pain to hear it treated by honorable gentlemen in a manner that has appeared not altogether free from exception. For they have not gone into it fully, and given a proper view of the transaction in every part, but of those only which preceded, and were subsequent to that, which had been the particular object of inquiry; a conduct that has seemed too much calculated to make an impression favorable to their wishes in the present instance. But, in making this observation, I owe it to those gentlemen to declare, that it is my opinion such omission has proceeded, not from intention, but their having forgotten facts, or to some cause not obvious to me, and which I make no doubt they will readily explain. "The policy of this State, respecting this river, has always been the same. It has contemplated but one object, the opening it for the use of the inhabitants, whose interest depended on it; and in this she has, in my opinion, shown her wisdom and magnanimity. I may, I believe, with propriety say, that all the measures that have at any time been taken by Congress for that purpose, were adopted at the instance of this State. There was a time, it is true, sir, when even this State, in some measure, abandoned the object, by authorizing its cession to the Court of Spain. But let us take all circumstances into view, as they were at that time, and I am persuaded it will by no means show a departure from this liberal and enlightened system of policy, although it may manifest an accommodation to the exigencies which pressed on us at the time. The Southern States were overrun, and in possession of the enemy. The governments of South Carolina and Georgia were prostrate, and opposition there at an end. North Carolina made but a feeble resistance; and Virginia herself was greatly harassed by the enemy in force at that time in the heart of the country, and by impressments for her own and the defence of the Southern States. In addition to this, the finances of the United States were in a deplorable condition, if not totally exhausted; and France, our ally, seemed anxious for peace; and as the means of bringing the war to a more happy and speedy conclusion, the object of this cession was the hopes of uniting Spain in it with all her forces. If I recollect aright, too, at this moment, the Minister of the United States, at the Court of Madrid, informed Congress of the difficulty he found in prevailing upon that Court to acknowledge our independence, or take any measure in our favor, suggested the jealousy with which it viewed our settlements in the Western country, and the probability of better success, provided we would cede the navigation of this river, as the consideration. The latter circumstances were made known to the Legislature, and they had their weight. All inferior objects must yield to the safety of the society itself. A resolution passed to that effect. An act of Congress likewise passed; and the Minister of the United States had full authority to relinquish this valuable right to that Court, upon the condition above stated. But what was the issue of this proposition? Was any treaty made with Spain that obtained any acknowledgment of our independence, although at war with Great Britain; and such acknowledgment would have cost her nothing? Was a loan of money accomplished? In short, does it appear that even Spain herself thought it an object of any importance? So soon as the war ended, this resolution was rescinded. The power to make such a treaty was revoked. So that this system of policy was departed from, only for a short time, for the most important object that can be conceived, and resumed again as soon as it possibly could be. "After the peace, it became the business of Congress to investigate the relation of these States to the different powers of the earth, in a more extensive view than they had hitherto done, and particularly in the commercial line; and to make arrangements for entering into treaties with them on such terms as might be mutually beneficial for each party. As the result of the deliberations of that day, it was resolved, 'That commercial treaties be formed, if possible, with said powers, those of Europe in particular, Spain included, upon similar principles; and three Commissioners, Mr. Adams, Mr. Franklin, and Mr. Jefferson, be appointed for that purpose.' So that an arrangement for a treaty of commerce with Spain had already been taken. Whilst these powers were in force, a representative from Spain arrived, authorized to treat with the United States on the interfering claims of the two nations, respecting the Mississippi, and the boundaries, and other concerns, wherein they were respectively interested. A similar commission was given to the honorable Secretary of Foreign Affairs, on the part of the United States, with these ultimata, 'That he enter into no treaty, compact, or convention whatever, with the said representative of Spain, which did not stipulate our right to the navigation of the Mississippi, and the boundaries as established in our treaty with Great Britain.' And thus the late negotiation commenced, under auspices, as I supposed, very favorable to the wishes of the United States; for Spain had become sensible of the propriety of cultivating the friendship of these States. Knowing our claim to the navigation of the river, she had sent a Minister hither principally to treat on that point; and the time would not be remote when, under the increasing population of the country, the inhabitants would be able to open it without our assistance or her consent. These circumstances being considered, was it not presumable she intended to make a merit of her concession to our wishes, and to agree to an accommodation upon that subject, that would not only be satisfactory, but highly pleasing to the United States? But what was the issue of this negotiation? How was it terminated? Has it forwarded the particular object in view, or otherwise promoted the interests and the harmony of the States, or any of them! Eight or ten months elapsed without any communications of its progress to Congress. At length a letter was received from the Secretary, stating that difficulties had arisen in his negotiation with the representative of Spain, which, in his opinion, should be so managed as that even their existence should remain a secret for the present; and proposing that a committee be appointed with full power to direct and instruct him in every case relative to the proposed treaty. As the only ultimata appointed in his instructions respected the Mississippi and the boundaries, it readily occurred that these occasioned the difficulties alluded to, and were those he wished to remove. And, for many reasons, this appeared, at least to me, an extraordinary proposition. By the Articles of Confederation nine States are necessary to enter into treaties. The instruction is the foundation of the treaty; for if it is formed agreeable thereto, good faith requires that it be ratified. The practice of Congress has also been always, I believe, in conformity to this idea. The instructions under which our commercial treaties have been made, were carried by nine States. Those under which the Secretary now acted were passed by nine States. The proposition, then, would be, that the powers which, under the constitution, nine States only were competent to, should be transferred to a committee, and the object thereby to disengage himself from the ultimata already mentioned in his existing instructions. In this light the subject was taken up, and on these principles discussed. The Secretary, Mr. Jay, being called before Congress to explain the difficulties mentioned in his letter, presented to their view the project of a treaty of commerce, containing, as he supposed, advantageous stipulations in our favor, in that line; in consideration for which we were to contract to forbear the use of the navigation of the river Mississippi for the term of 25 or 30 years, and earnestly advised our adopting it. The subject now took a decided form; there was no further ambiguity in it, and we were surprised, for reasons that have been already given, that he had taken up the subject of commerce at all. We were greatly surprised it should form the principal object of the project, and that a partial or temporary sacrifice of that interest, for the advancement of which the negotiation was set on foot, should be the consideration proposed to be given for it. But the honorable Secretary urged, that it was necessary to stand well with Spain; that the commercial project was a beneficial one, and should not be neglected; that a stipulation to forbear the use contained an acknowledgment, on her part, of the right in the United States; that we were in no condition to take the river, and therefore gave nothing for it; with other reasons which, perhaps, I have forgotten; for the subject in detail has nearly escaped my memory. We differed with the honorable Secretary, almost in every respect. We admitted, indeed, the propriety of standing well with Spain, but supposed we might accomplish that end, at least, on equal terms. We considered the stipulation to forbear the use, as a species of barter, that should never be countenanced in the councils of the American States, since it might tend to the destruction of the society itself; for a forbearance of the use of one river, might lead to more extensive consequences; to that of the Chesapeake, the Potomac, or any other of the rivers that emptied into it. In short, that the councils of the confederacy should be conducted with more magnanimity and candor, should contemplate the benefit of all parts upon common principles, and not the sacrifice of one part for that of another. There appeared to us a material difference between stipulating by treaty to forbear the use, and not being able to open the river. The former would be considered by the inhabitants of the Western country as an act of hostility; the latter might be justified by our inability. And, with respect to the commercial part of the project, we really thought it an ill-advised one on its own merits solely. "Thus was this project brought before Congress, and so far as I recollect, in this form, and upon these principles. It was the subject of tedious and lengthy discussion in that honorable body. Every distinct measure that was taken I do not now remember, nor do I suppose it of consequence. I have shown the outlines of the transaction, which is, if I apprehend rightly, all that the committee wish to possess. The communications of the Secretary were referred to a Committee of the whole House. The Delegates of the seven easternmost States voted that the ultimata in the Secretary's instructions be repealed; which was reported to the House, and entered on the journal by the Secretary of Congress, that the question was carried. Upon this entry, a constitutional question arose to this effect: 'Nine States being necessary, by the Federal Constitution, to give an instruction; and seven having repealed a part of an instruction so given, for the formation of a treaty with a foreign power, so as to alter its import, and authorize, under the remaining part thereof, the formation of a treaty, on principles altogether different from what the said instruction originally contemplated, can such remaining part be considered as in force, and constitutionally obligatory?' We pressed on Congress for a decision on this point often, but without effect. Notwithstanding this, I understood it was the intention of the Secretary to proceed and conclude a treaty, in conformity to his project, with the Minister of Spain. In this situation I left Congress. What I have since heard, belongs not to me to discover. Other gentlemen have more ample information of this business, in the course it has taken, than I can possibly have been able to obtain; for, having done my duty whilst there, I left it for others who succeeded me to perform theirs, and I have made but little further inquiry respecting it. The animated pursuit that was made of this object, required, and, I believe, received, as firm an opposition. The Southern States were on their guard, and warmly opposed it. For my part, I thought it my duty to use every effort in Congress for the interest of the Southern States. But so far as it depended on me, with my official character, it ceased. With many of those gentlemen, to whom I always considered it as my particular misfortune to be opposed, I am now in habits of correspondence and friendship; and I am concerned for the necessity which has given birth to this relation. "Whether the Delegates of those States spoke the language of their constituents; whether it may be considered as the permanent interest of such States to depress the growth and increasing population of the Western country, are points which I cannot pretend to determine. I must observe, however, that I always supposed it would, for a variety of reasons, prove injurious to every part of the Confederacy. These are well understood, and need not be dilated on here. If, however, such should be the interest of seven States, let gentlemen contemplate the consequences in the operation of the Government, as it applies to this subject. I have always been of opinion, sir, that the American States, to all national objects, had, in every respect, a common interest. Few persons would be willing to bind them together by a stronger or more indissoluble bond, or give the National Government more power than myself. I only wish to prevent it from doing harm, either to States or individuals; and the rights and interests of both, in a variety of instances, in which they are now left unprotected, might, in my opinion, be better guarded. If I have mistaken any facts, honorable gentlemen will correct me. If I omitted any, and it has not been intentional, so I shall be happy with their assistance to supply the defect. "Mr. Monroe added several other observations, the purport of which was, that the interest of the Western country would not be as secure under the proposed constitution as under the Confederation; because, under the latter system, the Mississippi could not be relinquished without the consent of nine States, whereas by the former, he said, a majority of seven States could yield it. His own opinion was, that it would be given up by a majority of the Senators present in the Senate, with the President, which would put it in the power of less than seven States to surrender it. That the Northern States were inclined to yield it. That it was their interest to prevent an augmentation of the Southern influence and power; and that as mankind in general, and States in particular, were governed by interest, the Northern States would not fail of availing themselves of the opportunity given them by the constitution of relinquishing that river, in order to depress the Western country, and prevent the Southern interest from preponderating. "Mr. HENRY[74] then rose and requested that the honorable gentleman (Mr. Monroe) would discover the rest of the project, and what Spain was to do on her part, as an equivalent for the cession of the Mississippi. "Mr. MONROE.--Mr. Chairman, I do not thoroughly recollect every circumstance relative to this project. But there was to be a commercial intercourse between the United States and Spain. We were to be allowed to carry our produce to the ports of Spain, and the Spaniards to have an equal right of trading hither. It was stipulated that there should be a reciprocity of commercial intercourse and benefits between the subjects of Spain and the citizens of the United States. The manufactures of Spain were to be freely imported and vended in this country, and our manufactures to be carried to Spain, &c., without obstruction, and both parties were to have mutual privileges in point of commercial intercourse and connection. This, sir, is the amount of the project of Spain, which was looked upon as advantageous to us. I thought myself that it was not. I considered Spain as being without manufactures, as the most slow in the progress of arts, and the most unwise, with respect to commerce, of all nations under the sun, (in which respect I thought Great Britain the wisest.) Their gentlemen and nobles look on commerce with contempt. No man of character among them will undertake it. They make little discrimination with any nation. Their character is to shut out all nations, and exclude every intercourse with them, and this would be the case with respect to us. Nothing is given to us by this project, but what is given to all other nations. It is bad policy, and unjustifiable on such terms to yield that valuable right. Their merchants have great stocks in trade. It is not so with our merchants. Our people require encouragement. Mariners must be encouraged. On a review of these circumstances, I thought the project unwise and impolitic." Haying completed the reading, Mr. R. resumed his remarks. I have, said he, to ask pardon of the House for detaining them with the reading of so lengthy a document. That it contains perhaps the only correct historical detail extant of this truly curious transaction, must constitute my apology. I will now ask, Mr. Speaker, who ever have been, and still are, the unshaken friends of the navigation of the Mississippi, and of the Western interests of this Union? It is not my wish, sir, on this occasion, to cast gentlemen opposed to us into the shade--to throw them into the background. All we ask is an equal share of confidence in our zeal to assert this great right, until we shall have proved ourselves unworthy of it. What is there then exhibited from the earliest period of our history? What fact has transpired which renders us undeserving of that confidence, or which entitles gentlemen on the other side of the House exclusively to it? Shall we then silently submit to the intolerant assumption on their part of all feeling for this important right, involving the vital interests of our country? Shall we sit down contented under the imputation of lukewarmness in this cause? or, shall we tell those gentlemen that under every circumstance, and in all situations, with closed doors, as well as with open doors, we have been, are, and ever will be, the unalterable supporters of the free navigation of the Mississippi? The sentiments which have been displayed in the course of this proceeding, present a phenomenon in the history of what are termed regular Governments. When an Administration have formed the design of subverting the public liberties--of enriching themselves or their adherents out of the public purse, or of crushing all opposition beneath the strong hand of power--war has ever been the favorite ministerial specific. Hence have we seen men in power too generally inclined to hostile measures, and hence the opposition have been, as uniformly, the champions of peace--not choosing to nerve with new vigor (the natural consequence of war) hands, on whose hearts or heads they were unwilling to bestow their confidence. But how shall we account for the exception which is now exhibited to this hitherto received maxim? On the one part the solution is easy. An Administration under which our country flourishes beyond all former example--with no sinister views--seeking to pay off the public encumbrances, to lessen the public burdens, and to leave to each man the enjoyment of the fruits of his own labor, are, therefore, desirous of peace, so long as it can be preserved consistently with the interests and honor of the country. On the other hand, what do you see? Shall I say an opposition sickening at the sight of the public prosperity, seeking through war, confusion, and a consequent derangement of our finances, that aggrandizement which the public felicity must for ever forbid? No, sir, my respect for this House and for those gentlemen forbids this declaration, whilst, at the same time, I am unable to account on any other principle for their conduct. Mr. R. concluded by saying, that he had forborne these observations until they were extorted from him. He had hoped that gentlemen would have let the business take its course, after the decision of yesterday, and that the House would have gone into committee on the confidential Message; but gentlemen had insisted on discussing the merits of the navigation on a preliminary question. The business having taken that turn, he thought it due to himself and friends to repel the odium which it was endeavored to attach to them. Mr. DANA thought it was not necessary on this subject to enter into a history of political parties in this country. And when the gentleman from Virginia undertook to give a history, he had no idea that he was about giving details of secret history. He had supposed he was about offering a general view of the subject. He did not know that it was to be stated who were friendly or unfriendly to the rights of our Western citizens, much less that there was an established hereditary hostility to them. He had supposed that all the gentlemen on that floor had expressed the wishes of the people; he had supposed there was but one opinion; he had heard of no insinuation of difference. The only difference which he had thought existed was as to the means to be used, and the time when those means should be carried into effect. But as to the natural right, and the ultimate enjoyment of the nation to the free navigation of the Mississippi, he asked what gentleman had charged another with any doubts on that? And when we all agree in this, whence the necessity of calling up the animosities of party? May not gentlemen express their opinions in favor of decided measures, when the voice of the nation had been so audibly expressed, without such expression being construed into a censure upon others? When, too, the opinions of other gentlemen on fundamental points coincided with your own? Is it necessary, when the whole nation is alive, to be moderate in the expression of our ideas? If we do not come from that part of the Union more immediately affected by the late measures at New Orleans, are we therefore to be indifferent and unconcerned spectators of events? If, standing here as Representatives of the United States, we are not at liberty to attend to any thing not confined to the trifling district of country we may each of us represent, miserable is the ground on which we stand, and humble indeed our condition! But let me say, even on this ground, the ship-owners and the merchants on the Atlantic are deeply interested. Our Western citizens are certainly more deeply interested in the freedom of the Mississippi; but it goes to the great interests of navigation generally. They feel it most; but we feel it much. This is all I deem it necessary, said Mr. D., to observe on the remarks of the gentleman from Virginia on his historical detail. Sir, this ought not to be made a party question. With respect to the motion before the House, my colleague has drawn it in terms the most respectful. Gentlemen propose to refer it to a Committee of the Whole. To this we object, because we want the information promptly. But the votes of gentlemen prevail, and it is referred. Our next step is to refer it immediately, to avoid delay. To obtain information, full and prompt, is the end of our endeavors. Why are we told of the inconsistency of our means? The course we pursue is plain and direct; that which carries us steadily to our obtaining information; and if the House will not give it to us in the way we wish, we are for taking it in the best way we can. Let it be remarked, that, if no obstacles had taken place at New Orleans, the subject of the cession of Louisiana is referred to in the Message of the President. Is not the information, we ask, important, in the general view, of who are to be our neighbors; where, from the dispersed population of our citizens, the Union is most vulnerable? And in this light it would have been proper to get the information, even if the measures at New Orleans had not occurred. It makes no difference whether those measures are the measures of Spain or of France. The two points were not necessarily connected, though I admit that the proceedings at New Orleans have a bearing on the general subject. With regard to the measures at New Orleans, we have information, and have obtained it. That information has been referred to a Committee of the Whole. We now ask information respecting the cession; and having got it, let us refer that also, and deliberate on the measures proper to be taken. Cannot the logical talents of the gentleman from Massachusetts (Mr. BACON) distinguish between information and measures? Will he say that premises and conclusions are the same thing? This information is that on which we are to deliberate. I had supposed facts necessary to legislate on. I had thought there was, to be sure, a connection between one step and another which follows. But will the gentleman say, that whenever we ask information, we conclude upon measures? The yeas and nays were then taken on the call of Mr. GRISWOLD, on going into a Committee of the Whole on the state of the Union, which was lost--yeas 38, nays 48, as follows: YEAS.--Phanuel Bishop, Thomas Boude, John Campbell, Manasseh Cutler, Samuel W. Dana, John Davenport, Thomas T. Davis, William Dickson, William Eustis, Calvin Goddard, Roger Griswold, William Barry Grove, Seth Hastings, William Helms, Joseph Hemphill, Archibald Henderson, Benjamin Huger, Samuel Hunt, Thomas Lowndes, Ebenezer Mattoon, Samuel L. Mitchill, Lewis R. Morris, Thomas Morris, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, John Cotton Smith, John Stanley, John Stratton, Samuel Tenney, Samuel Thatcher, Thomas Tillinghast, George B. Upham, Killian K. Van Rensselaer, Peleg Wadsworth, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, Richard Brent, Robert Brown, William Butler, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, John Dawson, Lucas Elmendorph, Ebenezer Elmer, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, William Hoge, James Holland, David Holmes, George Jackson, Michael Leib, David Meriwether, Thomas Moore, Anthony New, Thomas Newton, jun., Joseph H. Nicholson, John Randolph, jun., John Smilie, John Smith, (of New York,) John Smith, (of Virginia,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jun., John Stewart, John Taliaferro, jun., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, John P. Van Ness, Joseph B. Varnum, Isaac Van Horne, and Thomas Wynns. Mr. GRISWOLD said, that notwithstanding the unfortunate situation they were placed in by the refusal of the House, he still deemed it his duty to move other resolutions, which he would read, and move to be referred to a Committee of the Whole. Mr. G. then moved the following resolutions: _Resolved_, That the people of the United States are entitled to the free navigation of the river Mississippi. _Resolved_, That the navigation of the river Mississippi has been obstructed by the regulations recently carried into effect at New Orleans. _Resolved_, That the right of freely navigating the river Mississippi ought never to be abandoned by the United States. _Resolved_, That a committee be appointed to inquire whether any, and, if any, what, Legislative measures are necessary to secure to the people of the United States the free navigation of the river Mississippi. Mr. DAWSON asked if these resolutions were not necessarily connected with a subject which the House had determined should be discussed in private? If, by this arrangement, other gentlemen had been precluded from offering resolutions, he would ask if it were right in the gentleman from Connecticut to violate a general injunction laid upon all the members? Mr. GRISWOLD.--There is a Message from the President, of the 22d of December, on this subject that is publicly entered on the journals.[75] It is on this Message that these resolutions are predicated. I trust I understand the rules of the House well enough to know that I am not to bring forward what it has been enjoined shall be secret. The question was then taken without further debate, on taking up the above resolutions for consideration, and lost--yeas 32, nays 50. Mr. RANDOLPH then called for the consideration of the President's confidential Message, when the galleries were cleared. FRIDAY, January 7. _Navigation of the Mississippi._ (SECRET SESSION.) On a motion made and seconded, the House was cleared of all persons present, except the members and the Clerk: Whereupon, The House again resolved itself into a Committee of the whole House on the Messages from the PRESIDENT OF THE UNITED STATES, of the twenty-second and thirtieth ultimo, and the documents transmitted therewith; and, after some time spent therein, Mr. SPEAKER resumed the Chair, and Mr. VARNUM reported that the committee had again had the said Messages and documents under consideration, and come to a resolution thereupon; which he delivered in at the Clerk's table, where the same was read as follows: "_Resolved_, That this House receive with great sensibility the information of a disposition in certain officers of the Spanish Government, at New Orleans, to obstruct the navigation of the river Mississippi, as secured to the United States by the most solemn stipulations. "That, adhering to that humane and wise policy which ought ever to characterize a free people, and by which the United States have always professed to be governed; willing, at the same time, to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of His Catholic Majesty; and relying, with perfect confidence, on the vigilance and wisdom of the Executive, they will wait the issue of such measures as that department of the Government shall have pursued for asserting the rights and vindicating the injuries of the United States; holding it to be their duty, at the same time, to express their unalterable determination to maintain the boundaries and the rights of navigation and commerce through the river Mississippi, as established by existing treaties." The House proceeded to consider the said resolution at the Clerk's table: Whereupon, so much as is contained in the first clause thereof, being again read, in the words following, to wit: "_Resolved_, That this House receive with great sensibility the information of a disposition in certain officers of the Spanish Government, at New Orleans, to obstruct the navigation of the river Mississippi, as secured to the United States by the most solemn stipulations." The question was taken that the House do concur with the Committee of the whole House in their agreement to the same; and resolved in the affirmative. The last clause of the said resolution being again read, in the words following, to wit: "That, adhering to that humane and wise policy which ought ever to characterize a free people, and by which the United States have always professed to be governed; willing, at the same time, to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of His Catholic Majesty; and relying, with perfect confidence, on the vigilance and wisdom of the Executive, they will wait the issue of such measures as that department of the Government shall have pursued for asserting the rights and vindicating the injuries of the United States; holding it to be their duty, at the same time, to express their unalterable determination to maintain the boundaries and the rights of navigation and commerce through the river Mississippi, as established by existing treaties:" A motion was made, and the question being put to amend the said last clause of the resolution, by striking out therefrom the words following, to wit: "And relying, with perfect confidence, on the vigilance and wisdom of the Executive, they will wait the issue of such measures as that department of the Government shall have pursued for asserting the rights, and vindicating the injuries of the United States:" It passed in the negative--yeas 30, nays 53, as follows: YEAS.--Thos. Boude, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, Calvin Goddard, Roger Griswold, William Barry Grove, Seth Hastings, Joseph Hemphill, Archibald Henderson, William H. Hill, Benjamin Huger, Samuel Hunt, Thomas Lowndes, Ebenezer Mattoon, Lewis R. Morris, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, John Cotton Smith, John Stanley, John Stratton, Samuel Tenney, Samuel Thatcher, George B. Upham, Killian K. Van Rensselaer, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, Richard Brent, Robert Brown, William Butler, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, Thomas T. Davis, John Dawson, William Dickson, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, William Helms, William Hoge, James Holland, David Holmes, George Jackson, Michael Leib, David Meriwether, Samuel L. Mitchill, Thomas Moore, James Mott, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Randolph, jr., John Smilie, John Smith, (of New York,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Isaac Van Horne, and Thomas Wynns. Another motion was then made, and the question being put, to amend the said last clause of the resolution, by striking out therefrom the word "vindicating," next before the words "the injuries of the United States," and inserting the word "redressing," in lieu thereof, it passed in the negative. The question was then taken that the House do concur with the Committee of the whole House in their agreement to the said last clause of the resolution, and resolved in the affirmative. A motion was then made and seconded that the House reconsider their decision on the said last clause of the resolution; and the question being put thereupon, it was resolved in the affirmative. A division of the question was then called for: whereupon the first member of the said last clause of the resolution being again read, in the words following, to wit: "That adhering to that humane and wise policy which ought ever to characterize a free people, and by which the United States have always professed to be governed; willing, at the same time, to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of His Catholic Majesty:" The said division of the question was objected to, as not being in order, and the SPEAKER having decided the same was in order, an appeal was made to the House from the decision of the Chair; and on the question, "Is the decision of the Chair in order?" it was resolved in the affirmative. On the question that the House do agree to the said first member of the last clause of the resolution, it was unanimously resolved in the affirmative, by yeas and nays, every member present voting in the affirmative, to wit: YEAS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, Thomas Boude, Richard Brent, Robert Brown, William Butler, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, Samuel W. Dana, John Davenport, John Dawson, John Dennis, William Dickson, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Calvin Goddard, Edwin Gray, Andrew Gregg, Roger Griswold, William Barry Grove, John A. Hanna, Seth Hastings, Joseph Heister, William Helms, Joseph Hemphill, Archibald Henderson, William H. Hill, William Hoge, James Holland, David Holmes, Benjamin Huger, Samuel Hunt, George Jackson, Michael Leib, Thomas Lowndes, Ebenezer Mattoon, David Meriwether, Samuel L. Mitchill, Thomas Moore, Lewis R. Morris, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, Elias Perkins, Thomas Plater, John Randolph, jr., Nathan Read, John Rutledge, John Smilie, John Cotton Smith, John Smith, (of New York,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, John Stanley, Joseph Stanton, jr., John Stratton, John Taliaferro, jr., Samuel Tenney, Samuel Thatcher, David Thomas, Philip R. Thompson, Abram Trigg, Philip Van Cortlandt, Joseph B. Varnum, Isaac Van Horne, Killian K. Van Rensselaer, and Thomas Wynns. The third member of the said last clause of the resolution being again read, in the words following, to wit: "Holding it to be their duty, at the same time, to express their unalterable determination to maintain the boundaries, and the rights of navigation and commerce through the river Mississippi, as established by existing treaties:" A motion was made, and the question being put, to amend the same by striking therefrom the words "existing treaties," and inserting the word "treaty" in lieu thereof, it passed in the negative. On the question that the House do agree to the said third member of the last clause of the resolution, it was unanimously resolved in the affirmative, by yeas and nays, every member present voting in the affirmative. And then the main question being taken, that the House do agree to the said resolution, as reported from the Committee of the whole House, it was resolved in the affirmative--yeas 50, nays 25, as follows: YEAS.--Willis Alston, John Archer, John Bacon, Theodorus Bailey, Richard Brent, Robert Brown, William Butler, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, John Dawson, William Dickson, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, William Helms, William Hoge, James Holland, David Holmes, George Jackson, Michael Leib, David Meriwether, Samuel L. Mitchill, Thomas Moore, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Randolph, jr., John Smilie, John Smith, (of New York,) Josiah Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Isaac Van Horne, and Thomas Wynns. NAYS.--Thomas Boude, Samuel W. Dana, John Davenport, John Dennis, Calvin Goddard, Roger Griswold, Seth Hastings, Joseph Hemphill, Archibald Henderson, Benjamin Huger, Samuel Hunt, Thos. Lowndes, Ebenezer Mattoon, Lewis R. Morris, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, John Cotton Smith, John Stanley, John Stratton, Samuel Tenney, Samuel Thatcher, Killian K. Van Rensselaer, and Lemuel Williams. _Resolved_, That the injunction of secrecy upon the members of this House, so far as relates to the resolution last recited, and the proceedings of the House on the Messages from the PRESIDENT OF THE UNITED STATES, of the twenty-second and thirtieth ultimo, be taken off. MONDAY, January 10. Another member, to wit, JAMES A. BAYARD, from Delaware, appeared, and took his seat in the House. A new member, to wit, PETER EARLY, returned to serve in this House, as a member from the State of Georgia, in the room of John Milledge, who hath resigned, appeared, was qualified, and took his seat in the House. _Monuments to Generals, and to the Captors of Andre._ A message from the Senate informed the House that the Senate have passed the bill entitled "An act to carry into effect several resolutions of Congress, for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson, and Scriven," to which they desire the concurrence of this House. The said bill was read twice and committed to the committee appointed the fourth instant, to prepare and bring in a bill for erecting a monument to the memory of General Herkimer, pursuant to a resolution of Congress, passed the fourth day of October, one thousand seven hundred and seventy-seven. Sundry motions being made and seconded, that the House do come to the following resolutions respectively, to wit: _Resolved_, That a monument be erected to the memory of Major General Joseph Warren, who was slain on Bunker's Hill on the seventeenth day of June, one thousand seven hundred and seventy-five; and that the sum of ---- be appropriated therefor. _Resolved_, That a monument be erected to the memory of General Hugh Mercer, who was slain at Princeton, on the third day of January, one thousand seven hundred and seventy-seven; and that the sum of ---- dollars be appropriated for that purpose. _Resolved_, That a monument be erected to the memory of General Francis Nash, who was slain at the battle of Germantown; and that the sum of ---- dollars be appropriated for that purpose. _Resolved_, That a monument be erected to the memory of General Richard Butler, who was killed gallantly fighting in an action with the Indians, on the fourth day of November, one thousand seven hundred and ninety-one; and that ---- dollars be appropriated for that purpose. _Resolved_, That a monument be erected to the memory of General Nathaniel Woodhull, who commanded the militia on Long Island, in the year one thousand seven hundred and seventy-six, and was then taken prisoner and most cruelly put to death by the enemy; and that ---- dollars be appropriated for that purpose. _Resolved_, That a monument be erected to commemorate the virtuous and patriotic conduct of John Paulding, David Williams, and Isaac Van Wert, who, on the twenty-third day of September, one thousand seven hundred and eighty, intercepted Major John Andre, Adjutant General of the British Army, returning from the American lines in the character of a spy; and that the sum of ---- dollars be appropriated for that purpose. _Ordered_, That the said motions, severally, be referred to the committee to whom was this day committed the bill sent from the Senate, entitled "An act to carry into effect several resolutions of Congress for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson and Scriven." _National University._ Mr. VAN NESS presented a representation from Samuel Blodget, on the subject of a National University, as follows: "The memorial of Samuel Blodget, late Supervisor of the City of Washington, represents that, owing his appointment chiefly to his zeal in forming several probationary plans for a National University, he conceived it an indispensable duty, after the death of WASHINGTON, to follow the commanding advice and noble example of the common Father of his Country, so irresistibly portrayed in his Farewell Address, and in the clause of his will annexed to his liberal donation therefor. In thus calling, most respectfully, the attention of your honorable body to this part of the will of WASHINGTON, he fulfils a promise made in behalf of more than one thousand subscribers to the same object, whose respectable names accompany this memorial, with a request that a committee may be appointed to consider what portion of the public lots and lands in the Western Territory of the United States, shall be appropriated by Congress to this important institution, in addition to the contents of either of the sites already contemplated therefor within the City of Washington, by WASHINGTON himself, and by the Commissioners thereof. And further to consider the expediency (should it comport with the monumental plan to be adopted) of erecting the statue of 1783, or in lieu thereof an appropriate and characteristic equestrian statue of the original founder of the National University, as a beautiful centre-piece for the entire plan, to be surrounded by halls and colleges as they may be built in succession, by the fund to which the whole people of America are now so liberally and so honorably contributing by voluntary subscriptions from Maine to Georgia inclusive; thus virtually following the ancient custom of the original Americans, who, men, women, and children, carried a stone to the monumental pile of a beloved chief." The memorial was accompanied by a plan of the Equestrian Statue of Washington, surrounded by halls and colleges regularly arranged, the whole to be styled the Monument to Washington. Referred to a select committee--ayes 42, nays 27. The following members constitute the committee: Mr. VAN NESS, Mr. TALIAFERRO, Mr. HILL, Mr. ELMENDORPH, and Mr. CUTLER. TUESDAY, January 11. The House proceeded to consider the amendment proposed by the Senate to the bill entitled "An act for the relief of Charles Hyde;" Whereupon, _Resolved_, That this House do agree to the said amendment. _Cession of Louisiana to France._ Mr. GRISWOLD moved that the House resolve itself into a Committee of the Whole on the state of the Union, intending, should he succeed, to call up his resolution presented on the 5th instant, viz: "_Resolved_, That the President of the United States be requested to direct the proper officer to lay before this House, copies of such official documents as have been received by this Government, announcing the cession of Louisiana to France, together with a report, explaining the stipulations, circumstances, and conditions, under which that province is to be delivered up, unless such documents and reports will, in the opinion of the President, divulge to the House particular transactions not proper at this time to be communicated." I recollect, said Mr. G., when I proposed on a former day that the House should go into Committee of the Whole for the purpose of considering this resolution, the principal arguments in opposition were drawn from its supposed connection with a subject which had been referred to a secret committee, and, therefore improper for previous or public discussion. Those arguments have now lost their weight. The House have decided on those confidential subjects, and their resolution was published, and I believe it will appear that I was not incorrect in my opinion, that this resolution has no concern with any confidential communications. When before under consideration, the inquiry contemplated was considered important. The information requested must be in possession of the Executive; it cannot be supposed that such documents as would be useful to the House, do not exist in the Executive cabinet. We cannot legislate with a proper understanding, unless we are informed of all the circumstances, conditions, and stipulations, under which that territory is ceded to France. I will not believe that the Executive has neglected to demand such explanations as the honor and interest of the United States require. It is this official information which we want. As we are unembarrassed by other subjects, either of a public or secret nature, I hope the House will now come to a decision; I shall call for the yeas and nays. Mr. DAWSON moved a postponement of the resolution to a future day. Mr. MOTT said he was opposed to the resolution, but was for going into Committee of the Whole, and deciding upon it, rather than to be troubled with it from day to day. Mr. DANA.--I consider the refusal to go into a Committee of the Whole on the state of the Union as a negative upon the resolution. We have been told before by the gentleman from Virginia, (Mr. RANDOLPH,) that it does not amount to a refusal of the resolution. True, it may not be so harsh a mode of putting it aside, but the effect is virtually the same. Will it be made a question whether it is proper to ask for information? The President has recommended the subject to our attention in his message. It is not only proper, but of course becomes our duty, to deliberate, and to request such information from the President, as will assist and enlighten us in our proceedings. It is his constitutional province to do this, and it would be a reflection on him to suppose that he would withhold any information from the House, on a subject which he had thought so important, as to form part of an official message. It could not have been inserted merely for the sake of rounding off a period. No, sir, the President has undoubtedly sufficient reasons for mentioning this, as a subject worthy of our deliberations; he is designated by the constitution as the proper person from whom information on subjects of this nature is to be derived; he is supposed to combine the whole; it is not proper to receive it but from an official source. The general subject is mentioned in the following terms: "The cession of the Spanish province of Louisiana to France, which took place in the course of the late war, will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations connected with that subject." Are we to suppose the Executive has not been vigilant in ascertaining the circumstances attending this event? No. Are we to suppose he is unwilling to inform us what they are? No. He must be supposed willing to give the information. Therefore, why should gentlemen prevent us from obtaining that intelligence, which is presumed to exist, and which the Executive must be willing to give? Mr. RANDOLPH was averse to going into a Committee of the whole House on the state of the Union, if it were understood that the resolution of the gentleman from Connecticut was to be taken up. It was not very material to him in what way the House signified their dissent to the measure; but, preferring that which was least circuitous, he hoped they would refuse to take it up in committee. Much pains having been taken to impress a belief that the President had communicated to the House a fact of which he possessed no official information, Mr. R. begged the House to recollect that the tortured ingenuity of gentlemen had been unable fairly to infer the fact from the Executive communications; nor could it be implied from a refusal to concur in the proposed resolution. His opposition to it grew out of the resolution itself. It conveys the suspicion that Spain has ceded Louisiana to France indefinitely, thereby giving to France some color of claim to the countries formerly comprised under that appellation; or that she has made the cession by limits incompatible with her engagements to us; and that in either case our right to the navigation of the Mississippi may have been impaired. For, if you suppose in this transfer of her property that Spain has paid due regard to her stipulations with us, the resolution ceases to have an object. Now, sir, wherefore cast this imputation on Spain?--especially at this crisis, when, as I am informed from a respectable source, one of the first characters in the Union is recently nominated Minister to that Court, for the purpose of adjusting all differences on this subject? I should have supposed another reason would have deterred the gentleman from persisting in this call. That gentleman and his friends had recorded on the journals of this House their solemn determination, however sensibly they might feel the injuries inflicted on the rights and interests of these States, to refuse all co-operation in the support of those rights and interests so long as the direction of the Government should be retained by those who now possess it. For, after having expressed their disapprobation of that clause in a resolution lately adopted by the House to affect our rights of limits and of navigation through the Mississippi, objecting to no other part of it, they had, nevertheless, refused to give their assent to it because of this objectionable passage. There was a time, sir, when such conduct would have been denounced by a portion of this House as the essence of Jacobinism and disorganization. Mr. R. concluded by saying that he thought it unwise at this time, in the very cradle of the negotiation, to throw out insinuations which would have a tendency to irritate or disgust the Spanish Court. Mr. GRISWOLD.--I did not expect that the gentleman from Virginia (Mr. RANDOLPH) would, in the face of the journal now on the table, in contradiction to the knowledge of every gentleman in this House, have made the declaration we have just heard. Have we given our vote that we would not defend the free navigation of the Mississippi? Have we not been ready to unite in adopting those measures which the infraction of treaties and our violated rights demand? I appeal to our journals. What has been done, there appears, and will contradict the assertions of that gentleman. When the resolution was under consideration in the secret committee, which the gentleman (Mr. RANDOLPH) emphatically called HIS OFFSPRING, there were two votes taken on certain parts or members of it, previous to the main question. A motion was made to strike out the following clause: "And relying with perfect confidence on the vigilance and wisdom of the Executive, they will wait the issue of such measures as that department of the Government shall have pursued for asserting the rights and vindicating the injuries of the United States." I voted against this part of the resolution for two reasons: first, because I could not express a confidence which I did not feel; and secondly, because I was not satisfied with a resolution to do nothing. I thought we ought to do something; that it was not proper for the Legislature to sit as idle spectators of an important political transaction, which required legislative interference. I thought we ought to prepare for the worst. These were the reasons, Mr. Speaker, which influenced my conduct upon the motion for striking out. But how did we vote on the motion for agreeing to the following clause? "Holding it to be their duty at the same time to express their unalterable determination to maintain the boundaries, and the rights of navigation and commerce, through the river Mississippi, as established by existing treaties." Did we refuse our assent? Did we object to a syllable contained in this part of the resolution? No, sir, the vote was unanimous. Every member of the House stands pledged to support the sentiments therein expressed. On this point there was no difference of opinion. I appeal to your journals, sir, and to the recollection of every gentleman who was on that secret committee, whether I am not correct. It is true that there was a difference of opinion in the secret committee upon the other part of the resolution; on one side of the House it appeared proper to express great confidence in the present Executive, and, leaving every thing to that department, to do nothing ourselves; whilst on the other side, as we did not feel that confidence, we could not express it, and believing the occasion demanded legislative interference, we thought it necessary to prepare for the worst. How, then, can we be charged by the gentleman from Virginia (Mr. RANDOLPH) with having recorded our determination not to protect the rights and interests of these States, when our votes, appearing on your journal, not only prove our unalterable determination to defend those rights, but likewise prove that we were willing to leave the vindicating of those rights entirely to the Executive, and were earnestly desirous of adding thereto all the aid which the Legislature could contribute, and that we have been prevented from pursuing this course by the gentleman from Virginia, (Mr. RANDOLPH,) and his friends? I must be permitted again to express my astonishment that the gentleman can with any face make these charges, and again to appeal to your journal, and the recollection of every gentleman, for a contradiction of these unmerited aspersions. When the main question was taken we refused our assent. Not because we were unwilling to adopt such measures as circumstances might require; but because we could not sanction those expressions of unbounded confidence in the Executive, and that determination to do nothing which the resolution contained. As another argument against this resolution, we are told it is calculated to irritate and impede a negotiation, which the gentleman from Virginia (Mr. RANDOLPH) has informed us is about to commence, and, I must say, about to commence at a very late period; after an expiration of one year since the cession of that territory to France. Let us recur to the resolution: "_Resolved_, That the President of the United States be requested to direct the proper officer to lay before this House copies of such official documents as have been received by this Government, announcing the cession of Louisiana to France, together with a report explaining the stipulations, circumstances, and conditions, under which that province is to be delivered up; unless such documents and reports will, in the opinion of the President, divulge to the House particular transactions, not proper at this time to be communicated." Is this the language of irritation? Is there an offensive sentence either to the Court of Spain or the Republic of France? Not one. So far from impeding negotiation, it might lead to measures which would accelerate the agency, and ensure terms more advantageous. To be ready for any and every event, would evince on our part a disposition to demand, and the power to enforce reparation if refused. Inactivity and silence in the Legislative Department will indeed retard successful negotiation, by depriving a Minister of powerful and unanswerable arguments. Mr. S. SMITH said, it would be recollected, that on the first day the resolution of the gentleman from Connecticut was offered, it struck him as improper, and that it was at his instance it had been ordered to lie on the table. The more he had considered the nature of that resolution, the more averse to it had he become. So far from his original dislike to it having been removed by the arguments advanced, it had been confirmed, and particularly by what had fallen from the gentleman from Virginia. The gentleman from Connecticut does not perceive, or is unwilling to acknowledge, that there is any thing in his resolution that implies unfairness on the part of Spain, or that derogates from the honor of her character; but let him read the resolution. Mr. S. then read as follows: "That the President of the United States be requested to direct the proper officer to lay before this House copies of such official documents as have been received by this Government, announcing the cession of Louisiana to France, together with a report explaining the stipulations, circumstances, and conditions under which the province is to be delivered up." Does not the gentleman who drew this resolution seem to believe, from the express words of it, that the conduct of Spain has been unfair, and that she may have adopted measures derogatory to her character and honor? Shall we send a Minister hampered by such a resolution? Let the gentleman recollect the conduct of this House on a similar occasion. When an order of the British Court issued to seize all American vessels, wherever found, certain spirited resolutions were proposed in that House to show the dissatisfaction of the Government at this unjust measure, and its disposition, if necessary, to resist it. The gentleman will recollect, that at that crisis, and pending those very resolutions, a Minister was appointed. Did not the gentleman's friends immediately state the impropriety of passing those resolutions? The fact was, that gentlemen on both sides felt the force of the suggestion, and the resolutions were withdrawn. Mr. S. thought it wise, prudent, and proper, to pursue on this occasion the same course. He could conceive of no good end which could be answered by the resolution. Is the gentleman really in earnest in his inquiries at this time? and if the effect of his resolution should be to show that the stipulations are injurious to our rights, would he know how to act? He would be for acting spiritedly, no doubt; and yet, at this very moment, when he professed such a declaration, he declares to the world, that he has no confidence in the Executive, who is now pursuing the proper measures! I cannot, therefore, conceive that the gentleman is in earnest, after the vote which he and his friends have given of a want of confidence in the Executive. I cannot consider their conduct as intended to promote the real interests of their country; but as calculated to bring the country into a situation from which it cannot withdraw, without pursuing measures attended with expense and blood. Mr. RANDOLPH.--I trust neither this House, nor the American people, can be deceived as to this transaction. What I have stated the journals confirm, and I should call for the reading of them, if I were not informed by the Clerk that they were at the printer's. A resolution passed this House, expressing its disposition to assert the rights of the United States, in relation to their established limits, and to the navigation of the Mississippi. That resolution contained an expression of confidence in the Executive. Gentlemen moved to strike it out and failed. In every other part they concurred, separately and distinctly. But to the whole they gave their negative. What is the inference? That they will not assert our rights because they have no confidence in the Executive. Liken this to a bill: A clause is moved to be stricken out; it is retained. Those who object to that clause vote against the final passage of the bill. It is nevertheless carried; it becomes law. Are not those who voted against it fairly to be considered as enemies to the law? So have I a right to enumerate that gentleman and his friends, opponents to the measure which I submitted to the House; and yet, sir, although I stated every fact mentioned by the gentleman himself, (Mr. GRISWOLD,) except the final vote, which he took care to keep out of sight; although I mentioned expressly their concurrence in every other part of the resolution, it is asked with what face I can make such a statement in the teeth of your journals? Sir, let me tell that gentleman, not with the face of a prevaricator, but with the face of a man of honor and a gentleman; not with the face of one using terms intended to convey more than meets the ear, with a view of explaining them away when convenient; not with a design of simulating what I do not believe, or of dissembling my real purpose. The House will recollect, sir, that in the committee, the objection of the gentleman from Connecticut was confined solely to the expression of confidence in the Executive, there was then no reason to believe that there was any other. After protesting against this expression, and suffering it even to prevent his concurrence in any measures for the common good, he comes forward with another resolution, whether to benefit that cause which he has refused to espouse, or to diminish that confidence which appears so much to have disturbed him, I leave the House to determine. But Louisiana is ceded to France. It is so. Of this fact we have official information. But let it be remembered that it is yet in the hands of Spain. The injury which we have received is from officers of that Crown. The reparation is to be demanded from the same quarter. Now what has the information desired by gentlemen to do with any such negotiation? When France shall have taken possession of this province; when she shall have made pretensions inconsistent with our honor, or with our rights in that quarter, then will it be time enough to take up this subject. This is a transaction, which, if it ever does take place, must pass under the immediate cognizance and control of this House. Let gentlemen recollect that the treaty of cession is of an old date, and Louisiana is, notwithstanding, still in the possession of Spain. Shall we then suggest to France our expectation that she will set up a claim inconsistent with our rights; that she may have received a colorable pretence for violating them? Shall we thereby invite her aggressions? In whatever hands this country may be eventually placed, or by whomsoever our rights may be invaded, I doubt not a disposition will always be found to defend them. But it is with the actual possessors that we must negotiate; it is from them we must demand redress, and not from any nation who may possess a reversionary right to the province of Louisiana. Mr. BACON said that there was one question before the House, and they were debating upon another, in an animated manner and on an extensive scale, before they come to it. It would be recollected, he hoped, that this question was not then before the House. To what point, therefore, could these discussions lead? He was for going into a Committee of the Whole, and meeting the resolution face to face. Mr. DANA said that the observations of the gentleman from Massachusetts would be correct, were it not for the objections made to the resolution. That question is, therefore, fairly before the House; and the real point is, whether the House will, or will not, adopt the resolution requesting information. To adopting this resolution, one objection is urged by the gentleman from Virginia, and enforced by the gentleman from Maryland. This resolution, say they, may irritate the Court of Spain, and this will be improper. One gentleman has said that the language of propriety is uniform and consistent. Let gentlemen look then at the resolution long since offered by the gentleman from Virginia, requesting papers in relation to a violation of compact on the part of Spain in the late proceedings at New Orleans. Let me ask, is there any thing in this calculated to gratify the courtly delicacy of a Castilian? Here Spain is explicitly charged with a violation of her engagement with us. Look at the resolution that took its birth in secret committee, and which might be termed the offspring of the intellectual energies of the gentleman from Virginia. It is willing to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of His Catholic Majesty. If this were not the style of direct complaint, it was, at least, harsh, and in no wise courtly. Look now at the resolution proposed by my colleague. Compare them, and if there is not a revolution in the force of language as well as in other things, say if the language of my colleague's resolution is not that of civility, moderation, and even flattery, compared with the language of the other two? [Mr. DANA having read Mr. GRISWOLD'S resolution proceeded.] What is there here that implicates the character of Spain? If there is any fault in mentioning the cession, if that is calculated to irritate Spain, the fault lies with the President; for he first mentioned it. This argument, then, must be abandoned. There is nothing in this resolution that can impede negotiations; it is not my intention that this House should take any measures to impede, but that we should take measures to give additional force to negotiation. If I understand what will give most efficacy to Executive negotiations, it is when the world are assured that this House will support the President in all proper and necessary measures for vindicating our rights. But, say the gentlemen, is it possible that we can be for vindicating the rights of the citizens when we have withdrawn our confidence from the Executive? It is true we could not agree with gentlemen in their terms when they avowed "a perfect confidence in the vigilance and wisdom of the Executive." The gentleman from Virginia represented this as the theory of the Government. We could not agree with him. We voted for striking this out. It is unnecessary to mention our motives for this in detail. This might be to imitate. What! "relying with perfect confidence in the Executive"--is this the language of the constitution, as it respects any man? The resolution does not limit the confidence reposed to any degree, but ascribes a perfection of wisdom and vigor, which ought not to be reposed in any being subject to the ordinary frailties of human nature. Besides, there is an expression of confidence resulting from the constitutional powers of the Executive, which may be correct. But it will be recollected that the powers of the Executive are not competent to ulterior measures. He has only the power of negotiation; he has no other. Though he may prevent an aggression by employing force, he cannot enforce compensation for injuries received. It was, therefore, improper to agree to a resolution that pledged ourselves to abstain from doing any thing. The allusion to the case with Great Britain was not correct. Will it be said that less success attended the measures of our negotiation then, because the House manifested a disposition to adopt spirited measures? Or, that there were in that case no measures adopted? Measures were adopted. But here, not a single measure had been. Mr. RANDOLPH said it was extremely painful to him to be obliged so often to explain what appeared to him almost self-evident. The journals have been quoted, sir, to show that I have cast an imputation on the Spanish Court more injurious than that contained in the resolution of the gentleman from Connecticut. I am perfectly willing that the decision of the question before us should depend upon that fact. The resolution, sir, which I had the honor to submit to you, spoke of a fact notorious to the whole world, of a breach of compact, of a violation of treaty, on the part of Spain, which could be neither denied nor justified. It contained an inquiry into this circumstance, and, information having been received respecting it, was followed by a declaration of our willingness to ascribe it to the unauthorized misconduct of their agents rather than to the Court of Spain. The resolution of the gentleman from Connecticut implies a fact highly dishonorable to the Spanish nation--that the Government, and not subordinate, unauthorized persons, has secretly entered into stipulations repugnant to its engagements with us. Put the case between two individuals; suppose a gentleman of this House to receive an injury from either of the gentlemen from Connecticut. In an open and manly manner he speaks of this injury, and in undignified terms of resentment. He inquires into it; having found that it was the act of a subordinate agent, and, no proof being exhibited that it was at the instigation of the principal, he frankly says: There is a violation on your part of your engagements with me, but I am willing to ascribe it to the unauthorized misconduct of your agent. On the contrary, suppose him to insinuate strongly that his opponent has covertly taken steps to injure him by treacherously entering into engagements incompatible with those previously made with him. Sir, that honor which would feel itself wounded by the first of these proceedings, while it was insensible to the other, is very little allied to the Castilian. But, sir, it seems that this unfortunate resolution betrays so entire an ignorance of the distribution of the powers of our Government as to clothe the Executive with an authority not only not devolved upon it by the constitution, but which is the peculiar province of this and the other branch of the Legislature. The gentleman (Mr. DANA) denies the power of the Executive to redress injuries received from foreign nations. The resolution, however, speaks only of a disposition to redress those injuries. But let us examine into the fact. Have I, indeed, so far mistaken, and, contrary to my own avowed principles, am so disposed to augment the Executive powers at the expense of the other departments of the Government? Suppose, on the representations of the Executive to the Court of Spain, that Court, which is more than probable, should restore the rights of navigation and deposit, disavow the conduct of their officers in violating those rights, and moreover, punish them for it? Would any person deny that, through the agency of the Executive, constitutionally exercised, the injury was redressed? There were other criticisms of the gentleman which I well remember, and to which he seems willing to call the recollection of the House. They were chiefly of a verbal nature. The gentleman objected to the expression "vindicating the injuries," which he contended implied the justifying, and not the redressing, of them. I could only reply, that I had been in the habit of hearing that word used in the sense in which I applied it as well as in that contended for by the gentleman. That the meaning of terms in our copious and flexible language should not be settled by provincial acceptation; and that by the only authority then accessible to us (knowing the disposition of the gentleman to bow to authority) it was decided that the word "vindicate" extended as well to the avenging of an injury as to the assertion of a right. I am, however, willing to confess that I have never attended to the technical structure of language with a precision so minute as that of the gentleman from Connecticut; and if the House are again to go to school to become acquainted with it, if again we are to be subjected to the lash of the pedagogue, no man shall have my vote for that high office so soon as the gentleman from Connecticut. When the resolution which I submitted to you was under consideration, I did defend the expression contained in it, of confidence in the Executive, on the theory of our Government. I am still ready to defend it on the same principle. By the Constitution of the United States, the Executive is the representative of the United States to foreign nations. It is furnished with organs by which to receive their propositions, and to communicate our own. The constitution, therefore, presumes that to this department may be entirely confided our negotiations with foreign States. To this House is given the sole power to originate money bills, and the constitution supposes that a perfect reliance may be had upon it for executing this all-important trust. On the Senate, in like manner, is devolved the right of trying impeachments, and perfect confidence is placed in the wisdom and justice of their decision. The same confidence is reposed in the Executive with respect to exterior relations. Without adverting, therefore, to the character of the individual, we had the same right to presume that the constituted authority would take the proper steps in relation to his department, that he has to presume that we will raise the necessary revenue and pass the proper laws. Until, then, it could be shown that some specific act of the Executive had rendered that department unworthy of our confidence, we might consistently express it: and, even if proof of such misconduct could be established, it would not alter the tenor of the constitution, however the individual might be affected by it. For your constitution, sir, is not of that precarious nature which depends on the fluctuating characters of particular men. Mr. R. concluded by declaring his reluctance, then increased by indisposition, to be so frequently called upon the floor, but he felt himself in honor bound to defend a motion made by himself, and which had called forth such repeated animadversions from the other side of the House. Mr. GODDARD.--The gentleman from Virginia (Mr. RANDOLPH) has complained so much of the objections to which his _secret_ resolution was exposed, that I feel myself called upon to sustain a part of that complaint which he has seen fit to place to the account of my colleague. The motion, sir, to strike out the word "vindicating," which gave the gentleman the trouble of producing his pocket dictionary, came from me. He attempted to show, by the authority of his dictionary, that the word is sometimes used to signify _revenge_. Admitting it, I asked then, and I ask now, with what propriety it could be used, even in that sense, in the resolution referred to? We were then speaking of measures which had before that time been taken by the President, regarding the subject to which the resolution referred. Were we to suppose that the President had already taken measures to _revenge_ the injuries of the United States? I had heard of no such intimation. Besides, has he the power to do so, in the manner then suggested by the gentleman from Virginia by taking possession of New Orleans? I believe not, without the concurrence of Congress. It was therefore absurd, in the highest degree, to use the expression in that resolution; and we had more than one reason for striking out that part of the resolution which contained it. But this, as well as every other word and letter of this favorite resolution, was pertinaciously adhered to. The gentleman who framed the resolution seemed determined to compel us to eulogize the President--to extort from us a little praise of _the man_--or reduce us to the necessity of voting against the principle of the resolution, which asserted our right to the free navigation of the Mississippi. This part of the resolution could have been introduced for no other purpose. It also called upon us to pledge ourselves to wait the issue of such measures as the President might have taken, without any knowledge of the nature of those measures, if any had been taken. And this, the gentleman (Mr. RANDOLPH) now tells us, we might well enough have done, on the ground of the _theory of our Government_. I did not know, sir, that it belonged to the theory of Government to eulogize the President on all occasions, or express a confidence we do not feel. Nor does it make a part of the theory of our Government, that the President, without the concurrence of Congress, should avenge the injuries of the country. But, sir, we determined not to express a confidence we did not feel, or vote against the principle of a resolution which was agreeable to us; and the rules of the House, notwithstanding all the efforts to the contrary, protected us in carrying that determination into effect. We recorded our votes in favor of such parts of the resolution as we liked, and against that which we deemed exceptionable; and the final vote which was given upon the whole resolution was sufficiently explained by those upon its different parts. But, sir, because we did not vote that we had "perfect confidence" in the Executive, are we now to be told that we are not entitled to the information called for by the resolution on your table? Are those who do not express entire approbation of all the measures of the Administration to be refused all information respecting the most important interests of the country? Another objection is raised to agreeing to this resolution. Gentlemen say it will offend foreign nations. What does the resolution call for? It calls for information of a _fact_ which we are told in the President's Message exists. Louisiana, says the President, has been ceded by Spain to France. We ask for such documents as he may possess in evidence of that fact. We wish to know the terms and conditions upon which that province is to be delivered up. When this is asked, by the resolution on your table, the right is at the same time reserved to the President to withhold such parts of it (if any such there be) as, _in his opinion_, ought not to be communicated. And the passage of this resolution is to offend France or Spain! For fear of _offending_ foreign nations we are not to ask or know what is our relative situation with such nations? If, sir, we hold this language, we may indeed avoid the _anger_ of foreign nations, but we shall merit their _contempt_. But when, in answer to the suggestion that we may offend Spain, the gentleman from Virginia is reminded of his resolution, which charges Spain directly with a violation of treaty, he replies that this language is palliated by our saying that we are "willing to ascribe this violation to the unauthorized conduct of certain individuals rather than to the want of good faith on the part of His Catholic Majesty." But, in making out this apology, the gentleman has blended two resolutions together. The one to which my colleague referred passed early in the session. In that, Spain was charged directly with a violation of treaty. Nothing was then said about unauthorized conduct of individuals. This reluctance at charging Spain with this violation of treaty was not expressed until a long time after, and is found in the resolution which passed in secret. Indeed, this, as well as all the objections which have been offered to the passage of the resolution on your table, appear to me equally fallacious. Mr. HUGER said, that having, on a former occasion, had an opportunity of delivering his sentiments in favor of the present resolution, "requesting the Executive to direct the proper officer to lay before the House such official documents, as were in possession of the Government, relative to the cession of Louisiana to France," he felt no disposition to enter at this time into a further discussion of the merits of that resolution, nor should he have again troubled the House on the subject, but for the assertion repeated more than once by the gentleman from Virginia, (Mr. RANDOLPH,) that those gentlemen who thought and voted with himself in the secret committee, had recorded, on the journals of the House, their solemn determination (however sensibly they might feel the injuries inflicted on the rights and interests of these States) to refuse all co-operation in support of those rights and interests so long as the direction of the Government should remain in the hands of the present Chief Magistrate. This imputation had already, it was true, been very properly repelled by his friend from Connecticut, and it had been triumphantly shown from the journals themselves, with how little justice the insinuation had been made against those who agreed and voted with him on the different parts of the resolution lately adopted in the secret committee. The gentleman from Virginia had, nevertheless, thought proper again to make the assertion; Mr. H. must, therefore, beg leave again to meet it, and to declare that it was neither authorized by a fair construction of the different votes given on the occasion by yeas and nays, nor to be inferred from any thing which had fallen in debate either from himself or any of his political friends. The very contrary, continued Mr. H., is in truth the fact; and had the resolution in question been debated with open doors, it would have been very evident to every one, that the utmost pains had been taken by the other side of the House to place us in this very predicament, and by availing themselves of a point of order, to oblige us by our votes, not only to declare an implicit and entire confidence in the present Chief Magistrate, but to tie up our hands and bind ourselves not to take a single step in this important business until the Executive was graciously pleased to authorize us to do so. If the doors had been allowed, I say, to remain open during the debate, it would have been evident to every one how much pains were taken to oblige us to commit ourselves on these two points, or to submit to be presented to the world as unwilling to co-operate in any way in the support of the just rights of the nation, and be deprived of an opportunity of showing, as we were anxious to do, our approbation of, and concurrence in, other parts of the resolution; the last sentence in particular, which holds forth our unalterable determination to maintain, in every event, the boundaries and right of commerce and navigation through the Mississippi, as established by existing treaties. Fortunately, however, the point of order was determined in our favor, and we have had an opportunity to show, and did actually show, by our votes, in the most unequivocal manner, that we were, as well as our political opponents, decidedly in favor of every other part of the resolution, save only that which called on us so unnecessarily to declare ourselves the blind and passive tools of the Executive. Nay, more, he recollected to have declared himself, again and again, in the course of the debate, that, although he was not willing at the present moment unnecessarily to express an entire and implicit confidence in the political infallibility of the Executive, yet he certainly had not the smallest hesitation in saying, that he was as ready as any gentleman on the other side, to devote his life and fortune, even under the auspices of the present Chief Magistrate, to the defence of our common country against any and every foreign aggression whatever. He was not, it was true, one of the warm and enthusiastic devotees of the present Administration, and he must honestly acknowledge that he should greatly prefer seeing the reins of Government, at this critical juncture, in the hands of a WASHINGTON! He, nevertheless, recollected that the present Chief Magistrate was placed at the head of affairs by the constitutional voice of the majority of the American people. He acquiesced, therefore, in their decision, and hoped he might be permitted to avail himself of the advantage of having the doors now open, to repeat again, in the most unequivocal language, that he was as ready as any of the most devoted friends of the Administration, to risk his life and his all, (even under its auspices,) in asserting the rights and vindicating the injuries of the United States. He was the more anxious to make a public and open avowal of his sentiments on this subject, because, although it might suit the party purposes for the moment to hold up one side of the House, as so forgetful of their duty, and so hurried away by their political zeal, as to pledge themselves in the face of the world, to give up the most important rights of the nation without a struggle, rather than co-operate with those now at the head of affairs in support of them, yet he thought it all-important that foreign nations at least should be convinced the fact was not so; and that whatever difference of opinion may exist amongst us with respect to our local politics, when called upon to meet and repel the encroachments of any foreign power, we would have but one sentiment on the subject. To bring about, indeed, a unanimous vote and present to the American people the agreeable and consoling spectacle of the National Legislature acting with one mind and with mutual confidence in each other on this great national question, big with such important consequences, had been his sincere wish, as well as that, he was confident, of every member on his side of the House. They had, consequently, left no stone unturned to effect the desirable end: they had called upon and conjured the majority to waive for the moment all party questions; to meet them on such fair and honorable grounds as might enable them to act with perfect unanimity in support of such measures, as it might be found expedient to adopt. Nor could gentlemen have forgotten the eloquent and conciliating speech of the member from Connecticut, and the ardent desire he had evinced, in common with all his friends, to bury the hatchet and lay aside every other consideration but the public good. It was scarcely necessary, however, to remind the House of the manner in which these proffers of conciliation and the anxiety on our part to obtain a unanimous vote on this important occasion were received. It is in the memory of every one, that they were treated with the most sovereign contempt, hooted and spurned at, and the gentleman from Virginia, (Mr. RANDOLPH,) in particular, went so far as to declare, that he neither wanted nor wished any thing like unanimity to appear in support of the measures which might be adopted; nay, that unanimity, however attainable, was not desirable. Mr. H. said he would make no comment on these sentiments and this conduct on the part of the majority; and as he did not rise for the purpose of entering into a further discussion of the main question, he should no longer encroach on the time or patience of the House, but leave them and the world to determine whether he or his political friends had, by their votes or conduct, in the course of the transaction alluded to, afforded any just ground for the imputation of the gentleman from Virginia, whatever plausibility he had ingeniously endeavored to give it. The question was then taken, on the requisition of Mr. GRISWOLD, by yeas and nays, and carried in the negative--yeas 38, nays 52, as follows: YEAS.--John Archer, John Bacon, James A. Bayard, Phanuel Bishop, John Campbell, Thomas Claiborne, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, Abiel Foster, Calvin Goddard, Roger Griswold, William Barry Grove, Joseph Hemphill, Archibald Henderson, William H. Hill, Benjamin Huger, Samuel Hunt, Thomas Lowndes, Ebenezer Matoon, Lewis R. Morris, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, John C. Smith, John Stanley, John Stratton, Samuel Tenney, Samuel Thatcher, Thomas Tillinghast, George B. Upham, Joseph B. Varnum, Killian K. Van Rensselaer, Peleg Wadsworth, Lemuel Williams, and Henry Woods. NAYS.--Willis Alston, Theodorus Bailey, Richard Brent, Robert Brown, William Butler, Matthew Clay, John Clopton, John Condit, Richard Cutts, Thomas T. Davis, John Dawson, William Dickson, Peter Early, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Edwin Gray, Andrew Gregg, John A. Hanna, Daniel Heister, Joseph Heister, William Helms, William Hoge, James Holland, David Holmes, George Jackson, Michael Leib, David Meriwether, Samuel L. Mitchill, Thomas Moore, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Randolph, jr., John Smilie, Israel Smith, John Smith, (of New York,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, John P. Van Ness, Isaac Van Horne, and Thomas Wynns. Mr. S. SMITH said he had a communication to make, which, in his opinion, required secrecy; whereupon the galleries were cleared. After a short time they were opened; when the House resumed the consideration of Mr. GRISWOLD'S resolution which lay on the table. _Ordered_, That the Committee of the whole House, on the State of the Union, to whom was referred, on the fifth instant, a motion respecting official information of the cession of Louisiana to France, be discharged from the consideration thereof; and that the said motion do lie on the table. Mr. BAYARD said he lamented much, that unavoidable occurrences had prevented his attending in his place when the resolution was under consideration upon the motion to go into a Committee of the whole House. Having no knowledge of the arguments then employed to induce the adoption of the resolution, he should abstain from many remarks which obviously presented themselves on the subject, lest he should fall into repetitions of what was familiar to the minds of the House from the observations of other gentlemen. He must, however, be allowed to state that it was a practice little known heretofore, but one which had alarmingly increased of late, to resist a call for information from any branch of the Executive Government. It cannot be on the ground of secrecy, required by the state of affairs, for we have been often told that a Government like ours ought to have no secrets. Though the present times have assumed the character of _economical_, yet an honorable member of great weight in the House, and whom he did not then observe in his place, had remarked at the last session, with great emphasis and effect, that no disposition to economy should ever induce him to economize information. A stronger case than the present could not exist. The House had been called on to act upon a question touching our foreign relations. On such subjects, it was among the chief duties of the Executive to acquire information. It was for this purpose that Ministers were sent abroad, and their communications were made to the Cabinet, to which we had a right to look upon all occasions for information respecting the proceedings of foreign Governments which implicated the national interest. It is stated in the Presidential Message, that Louisiana is ceded by Spain to France. This is an important fact. The statement in the Message shows that the President has obtained information relative to the cession after the fact is disclosed, which is the extent of any indiscretion which can be committed on the subject; why conceal from us the circumstances? The naked fact did not furnish sufficient light to enable us to judge of the steps which it would be proper for us to pursue. Though the country had been ceded, yet the possession remained with the Spaniards. This created a presumption that it was not a simple, absolute cession. If the cession be conditional or qualified, or to take effect upon some future contingency, it is extremely material that the House should be informed of the existence of the circumstances. Mr. B. repeated his regret that he was not present at the discussion of the subject which had taken place, as it was beyond his powers to imagine a ground upon which the information requested by the resolution could be denied. But after the resolution had been in effect negatived on the motion to go into a Committee of the Whole, and, as he understood, by a large majority, he should not have risen to trouble the House but for an occurrence which had taken place since the House had made their determination upon the resolution. An honorable member from Maryland (Mr. S. SMITH) has just laid upon our table a resolution calling upon the House to place two millions of dollars at the discretion of the Executive. [The SPEAKER here remarked to Mr. BAYARD, that as the doors were no longer closed, it was not in order to refer to what had been done when the doors were closed.] Mr. B. said he had no disposition to transgress the rules of the House; but it was an awkward situation, when, arguing in support of a measure, he was not at liberty to state the strongest reason in favor of it. He would not repeat what had escaped him; but alluding to what was in the knowledge of every member, he considered himself allowed to urge the probability that the House would be called upon for a grant of money. Now, sir, can gentlemen expect that either we or the nation will in any case be satisfied to make a large grant of money, while no information is given of the grounds upon which the grant is required? When money is asked for, information ought never to be denied; and, for his part, he never would consent to give a cent, while information, which ought to be communicated, was withheld. Mr. B. concluded by observing, that he hoped he might still flatter himself with the expectation, that what had recently occurred, would induce the House to vary from the determination they had made, and adopt the resolution. The question was taken, that the House do agree to the resolution of Mr. GRISWOLD, and passed in the negative--yeas 35, nays 51. WEDNESDAY, January 12. _Purchase of Louisiana._ [The injunction of secrecy having been removed from the following proceedings, had in secret session, they are here inserted under the proper date.] _Ordered_, That the Committee of the whole House, to whom was yesterday committed a motion in the words following, to wit: "_Resolved_, That a sum of two millions of dollars, in addition to the provision heretofore made, be appropriated to defray any expenses which may be incurred in relation to the intercourse between the United States and foreign nations, to be paid out of any money that may be in the Treasury, not otherwise appropriated, and to be applied under the direction of the President of the United States, who, if necessary, is hereby authorized to borrow the whole or any part thereof; an account whereof, as soon as may be, shall be laid before Congress:" be discharged from the consideration thereof, and that the motion be referred to Mr. NICHOLSON, Mr. EUSTIS, Mr. BAYARD, Mr. DICKSON, Mr. LOWNDES, Mr. THOMPSON, and Mr. GREGG; that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House. The committee to whom was referred a resolution proposing an appropriation of two millions of dollars, in addition to the sum usually appropriated for the purposes of intercourse between the United States and foreign nations, submit the following report: The object of this resolution is to enable the Executive to commence, with more effect, a negotiation with the French and Spanish Governments relative to the purchase from them of the island of New Orleans, and the provinces of East and West Florida. This object is deemed highly important and has received the attentive consideration of the committee. The free and unmolested navigation of the river Mississippi is a point to which the attention of the General Government has been directed, ever since the peace of 1783, by which our independence as a nation was finally acknowledged. The immense tract of country owned by the United States, which lies immediately on the Mississippi, or communicates with it by means of large navigable rivers rising within our boundaries, renders its free navigation an object, not only of inestimable advantage, but of the very first necessity. The Mississippi forms the western boundary of the United States, from its source to the 31st degree of north latitude, and empties itself into the Gulf of Mexico, about the 29th degree of north latitude. It furnishes the only outlet through which the produce of the Indiana Territory, of the States of Ohio, Kentucky, and Tennessee, and of the western parts of Pennsylvania and Virginia, and a portion of the Mississippi Territory, can be transported to a foreign market, or to the ports of the Atlantic States. From the 31st degree of north latitude, which is the southern boundary of the United States, to the mouth of the river, the territory on each side has heretofore been in possession of the Spanish Government; the province of Louisiana lying to the west, and those of East Florida, with the island of New Orleans, to the east. Although the United States have insisted on an uncontrollable right to pass up and down the river, from its source to the sea, yet this right, if admitted in its most ample latitude, will not secure to them the full advantages of navigation. The strength and rapidity of the current of the Mississippi are known to render its ascent so extremely difficult, that few vessels of burden have attempted to go as far as our boundary. This circumstance obliges the citizens of the Western country to carry their produce down the river in boats, from which it is put on board of ships capable of sustaining a sea voyage. It follows, therefore, that to enjoy the full benefits of navigation, some place should be fixed which sea vessels can approach without great inconvenience, where the American produce may be deposited until it is again shipped to be carried abroad. This great point was secured to us in the year 1795, by the Spanish Government, who agreed, in the treaty of San Lorenzo el Real, that Americans should have the right to deposit at New Orleans. This right has been used from that time till a late period; but the conduct of the Intendant at that place shows how liable the advantageous navigation of the river is to interruption, and strongly points out the impolicy of relying on a foreign nation for benefits, which our citizens have a right to expect should be secured to them by their own Government It is hoped that the port of New Orleans may again be opened before any very material injuries arise; but should this be the case, or if, as the treaty provides, a new place of deposit should be assigned, the late occurrence shows the uncertainty of its continuance. Experience proves that the caprice or the interested views of a single officer may perpetually subject us to the alternative of submitting to injury, or of resorting to war. The late violation of our treaty with Spain necessarily leads to the inquiry, how far the Western country may be affected in other points, not connected with New Orleans? The Mississippi Territory extends from the confines of Georgia to the river Mississippi, and from the 31st to the 35th degree of north latitude. It is estimated to contain more than fifty millions of acres, and, from its numerous advantages, must, one day or other, possess an immense population. The variety, richness, and abundance of its productions, hold out to settlers the strongest inducements to resort thither, and the United States may safely calculate on drawing a considerable revenue from the sale of lands in this, as well as in other quarters of the Western country. The value of these, however, may be diminished or increased, and the sale impeded or advanced by the impression made on the public mind, by shutting the port of New Orleans, and by eventual measures which may be adopted to guard against similar injuries. West Florida is bounded on the north by the Mississippi Territory, from which it is separated by no natural boundary; on the east by the river Appalachicola, which divides it from East Florida; on the west by the river Mississippi, and on the south by the Gulf of Mexico. The Mississippi Territory is intersected by many large and valuable rivers, which rise within its own boundaries and meander through it in a general direction, from north to south, but empty themselves into the Gulf of Mexico through the province of West Florida. In fact, with the exception of that part of the Territory which lies immediately on the Mississippi, the whole must depend on the Mobile and the Appalachicola, with their numerous branches, and on some other rivers of inferior note, for the means of sending its produce to market, and of returning to itself such foreign supplies as the necessities or convenience of its inhabitants may require. In these rivers, too, the Eastern parts of the State of Tennessee are deeply interested, as some of the great branches of the Mobile approach very near to some of those branches of the Tennessee river, which lie above the great Muscle shoals. Even if it should prove difficult to connect them, yet the land carriage will be shorter, and the route to the sea more direct than the river Tennessee furnishes. These rivers possess, likewise, an advantage which is denied to the Mississippi. As their sources are not in the mountains, and their course is through a level country, their currents are gentle, and the tide flows considerably above our boundary. This circumstance, together with the depth of water, which many of them afford, renders them accessible to sea vessels, and ships of two hundred tons burden may ascend for several hundred miles into the heart of the Mississippi Territory. These rivers, however, which run almost exclusively within our own limits, and which it would seem as if nature had intended for our own benefit, we must be indebted to others for the beneficial use of, so long as the province of West Florida shall continue in the possession of a foreign nation. If the province of West Florida were of itself an independent empire, it would be the interest of its Government to promote the freedom of trade, by laying open the mouths of the rivers to all nations; this having been the policy of those powers who possess the mouths of the Rhine, the Danube, the Po, and the Tagus, with some others. But the system of colonization which has always heretofore prevailed proves that the mother country is ever anxious to engross to itself the trade of its colonies, and affords us every reason to apprehend that Spain will not readily admit us to pass through her territory to carry on a trade either with each other or with foreign nations. This right we may insist on, and perhaps it may be conceded to us; but it is possible that it may be denied. At all events it may prove the source of endless disagreement and perpetual hostility. In this respect East Florida may not perhaps be so important, but its acquisition is nevertheless deemed desirable. From its junction with the State of Georgia, at the river St. Mary's, it stretches nearly four hundred miles into the sea, forming a large peninsula, and has some very fine harbors. The southern point, Cape Florida, is not more than one hundred miles distant from the Havana, and the possession of it may be beneficial to us in relation to our trade with the West Indies. It would likewise make our whole territory compact, would add considerably to our sea-coast, and by giving us the Gulf of Mexico for our southern boundary, would render us less liable to attack, in what is now deemed the most vulnerable part of the Union. From the foregoing view of facts, it must be seen that the possession of New Orleans and the Floridas will not only be required for the convenience of the United States, but will be demanded by their most imperious necessities. The Mississippi and its branches, with those of other rivers above referred to, drain an extent of country, not less, perhaps, than one half of our whole territory, containing at this time one-eighth of our population and progressing with a rapidity beyond the experience of any former time, or of any other nation. The Floridas and New Orleans command the only outlets to the sea, and our best interests require that we should get possession of them. This requisition, however, arises not from a disposition to increase our territory; for neither the Floridas nor New Orleans offer any other inducements than their mere geographical relation to the United States. But if we look forward to the free use of the Mississippi, the Mobile, the Appalachicola, and the other rivers of the West, by ourselves and our posterity, New Orleans and the Floridas must become a part of the United States, either by purchase or by conquest. The great question, then, which presents itself is, shall we at this time lay the foundation for future peace by offering a fair and equivalent consideration; or shall we hereafter incur the hazards and the horrors of war? The Government of the United States is differently organized from any other in the world. Its object is the happiness of man: its policy and its interest, to pursue right by right means. War is the great scourge of the human race, and should never be resorted to but in cases of the most imperious necessity. A wise government will avoid it, when its views can be attained by peaceful measures. Princes fight for glory, and the blood and treasure of their subjects is the price they pay. In all nations the people bear the burden of war, and in the United States the people rule. Their Representatives are the guardians of their rights, and it is the duty of those Representatives to provide against any event which may, even at a distant day, involve the interests and the happiness of the nation. We may, indeed, have our rights restored to us by treaty, but there is a want of fortitude in applying temporary remedies to permanent evils; thereby imposing on our posterity a burden which we ourselves ought to bear. If the purchase can be made, we ought not to hesitate. If the attempt should fail, we shall have discharged an important duty. War may be the result, but the American nation, satisfied with our conduct, will be animated by one soul, and will unite all its energies in the contest. Foreign powers will be convinced that it is not a war of aggrandizement on our part, and will feel no unreasonable jealousies towards us. We shall have proved that our object was justice; it will be seen that our propositions were fair: and it will be acknowledged that our cause is honorable. Should alliances be necessary they may be advantageously formed. We shall have merited, and shall therefore possess, general confidence. Our measures will stand justified, not only to ourselves and our country, but to the world. In another point of view, perhaps, it would be preferable to make the purchase, as it is believed that a smaller sum would be required for this subject, than would necessarily be expended, if we should attempt to take possession by force; the expenses of a war being, indeed, almost incalculable. The committee have no information before them, to ascertain the amount for which the purchase can be made, but it is hoped, that with the assistance of two millions of dollars in hand, this will not be unreasonable. A similar course was pursued for the purpose of settling our differences with the Regency of Algiers, by an appropriation of one million of dollars, prior to the commencement of the negotiation, and we have since experienced its beneficial effects. Under these impressions, therefore, the committee recommend the adoption of the resolution referred to them in the following words, viz: _Resolved_, That a sum of two millions of dollars in addition to the provision heretofore made, be appropriated to defray the expenses which may be incurred in relation to the intercourse between the United States and foreign nations; to be paid out of any money that may be in the treasury not otherwise appropriated, and to be applied under the direction of the President of the United States; who, if necessary is hereby authorized to borrow the same, or any part thereof, an account whereof, as soon as may be, shall be laid before Congress.[76] THURSDAY, January 13. Another member, to wit, WILLIAM JONES, from Pennsylvania, appeared, and took his seat in the House. _Franking Privilege._ Mr. RANDOLPH moved that the House resolve itself into a Committee of the Whole, on the amendments offered by the Senate to the bill making appropriations for the Military Establishment for the year 1803. The first amendment, applying an addition of two thousand dollars for the purchase of books, maps, and instruments for the use of the War Department, was agreed to. On the second, adding $4,500 for the payment of postage on letters to and from the inspector, paymaster, &c., a lengthy debate ensued. It was opposed on another ground--as being the duty of the Secretary of War to frank all letters going from the offices attached to the War Department, and, therefore, an appropriation was unnecessary. In answer, it was observed, that the Government must, and ought, in some way, to support the expense of transporting returns, orders, and letters, relating to the military service; and, if they would not make an appropriation, it was proposed to extend the privilege of franking to the paymaster and inspector, through whom most of the details for the Army passed. That it was not the duty of the Secretary to frank letters and packages going from other offices--it was making a clerk of him--obliging him to do that which neither the law nor the constitution contemplated as being attached to his office; that it would encroach upon the time which, must necessarily be devoted to more important concerns. Besides, were he able and willing to perform the drudgery of that service, it was doubtful whether he had any legal or constitutional right to frank any packages, except those going immediately and directly from his own particular office, and that he might be liable to a penalty, though he should frank letters on public business, relating to the Army and War Department generally. The extension of the privilege of franking was opposed by the Speaker, (Mr. MACON,) and others. They considered all franking as wrong, and liable to abuse--they would rather restrict than extend this privilege. In reply, it was said that, if confidence could not be placed in those officers, as to the privilege of franking, the imposition could not be prevented by referring their packets to the Secretary of War, or by paying their account current with the postmasters. It was evident the Government must pay those expenses; that it could make no difference as to the revenue, whether the Postmaster General's Department received and paid to the Treasury the money which was drawn from the contingent fund of the War Department, or from a special appropriation to defray the expenses of postage on military letters and packets, or whether they extended the privilege of franking to those officers from and through whom the military details must pass. In the former case, it was but taking from one pocket and putting in the other--in the latter, much trouble was saved; and, if the characters employed in those departments were worthy of a confidence which should entitle them to the places they hold, it could never be supposed that they would abuse the privilege of franking. On motion of Mr. GRISWOLD, seconded by Mr. EUSTIS, the committee rose and the amendments from the Senate were recommitted to the Committee of Ways and Means. _Amendment of the Bankrupt Act._ Mr. RANDOLPH hoped the act would not be amended, but repealed. When it passed, he was one of those who entered his protest against it. He considered it in the nature of an _ex post facto_ law--an allurement to fraud--tending to corrupt the morals of the community--to change the nature of contracts--to discharge men, not only for their obligations and their solemn promises, but to violate their oaths. And, because Congress had a right to enact such a law, would gentlemen say it was for the benefit of trade? Its operations had been the reverse. He had been waiting, ever since its establishment, for the merchants themselves to come forward and urge the repeal. A portion of them had petitioned for amendments, which, in fact, amounted to a request for a repeal. Mr. S. SMITH thought any arguments on the merits of the question were premature. It was a subject of too much importance to be hurried in that manner. He hoped it would be recommitted. Mr. NICHOLSON.--Many gentlemen appeared to wish a repeal, because there were some injurious provisions in the law; others wished it might be amended, believing it was capable of such alterations as would remove their objections. He thought it in some respects defective, and in others beneficial. If the evils to which it was subjected could be remedied, he should be for retaining, if not, for repealing the law. Mr. SMILIE.--Considering the situation of the United States, he thought there never should have been a bankrupt law; but he doubted whether it would be expedient to repeal it at this time, but let it expire of itself. He believed much mischief had been produced by it, and if it was repealed now, he apprehended much more would ensue. Its natural life was but five years, and he thought it had better exist for that period than be repealed. He was for recommitment. Mr. BAYARD agreed with the gentleman from Maryland, (Mr. NICHOLSON,) and thought the committee should have inquired what amendments were expedient. He was also forcibly impressed with the remarks of the gentleman from Pennsylvania, (Mr. SMILIE,) that it was better to suffer the law to expire of itself than repeal it now. He did not think that the House were prepared to go into a discussion. The argument of the gentleman from Virginia, (Mr. RANDOLPH,) that the bankrupt law was _ex post facto_, would not apply; but an act to repeal would in reality be an _ex post facto_ law. Many merchants had entered into contracts, having an eye to the bankrupt law; many had embarked in perilous enterprises, knowing, that if they had made unfortunate calculations, that by a surrender of their effects they might again engage in commercial pursuits. And though a man might be discharged from his contracts, the sense of moral obligation was not impaired--in _foro conscientiæ_ he was still answerable. He would not deny that frauds were committed, but for this should the honest debtor be eternally fettered with his debts? Should he, from unavoidable accidents, be cast into prison, and his family reduced to misery and distress? He was sure that the gentleman would revolt at the idea. Were the bankrupt law repealed, they must substitute the insolvent laws of the different States. Did not the insolvent laws of the Southern States hold out the same allurements to fraud as the general bankrupt law? By a repeal, they would increase the evils, and destroy the benefits of the general system. We were, said Mr. B., a great commercial Republic; the connection between merchants of the different States was increasing; therefore, the merchant of Georgia and the merchant of New Hampshire should be subjected to general regulations. Now, the merchant of Pennsylvania trusting the merchant of Virginia knew that his whole estate, real and personal, was liable for the payment of his debts; whereas, by the insolvent laws of that State, (Virginia,) the former might give an extensive credit; the latter might vest it all in land, which was untangible for the payment of his demand. The bankrupt act was a commercial law, extending equal benefits throughout the Union. If it was suffered to go back to the select committee, they would be able to give a clearer view of its advantages and defects. It was a subject of incalculable importance, both as it respected the debtor and creditor, and he hoped it would meet a candid and deliberate investigation. Mr. RANDOLPH said that the affairs of the world had been found to suffer more from being put in the hands of those who were superior to the management of them, than from those who were inadequate to the execution of those objects intrusted to them. It had been allowed a sound rule of construction, that all general powers must be confined to particular exceptions. The constitution gave Congress the right of making a bankrupt law, but it did not give the power of impairing contracts. He would exonerate the person, but never the property. It was the case in Virginia, when a man had surrendered all his property, his person was liberated, but his property never. And though we were a commercial Republic, was it not necessary to take care of the agricultural interest? How did the bankrupt law operate upon the planter? He knew by experience that it had been in many instances ruinous; that many planters had been _choused_ out of their property by the operations of this very law. He had known from experience that many men had been buoyed up and supported by their friends till those friends were made good, and then suffered to fail, to the great injury of the former. Mr. BACON was in favor of a reference to a Committee of the whole House. Mr. S. SMITH said, gentlemen seemed to consider the bankrupt law as made entirely for the benefit of the debtor. That was an erroneous opinion. It was made also for the creditor: as such he advocated it. It enabled the creditor to secure his property, if he found the debtor was disposed to be fraudulent: he could apply for a commission of bankruptcy, and make the debtor account for the property in his possession. Besides, it reduced the creditors to an equality--a debtor could not secure his friends, and leave the rest of his creditors without a dollar. An instance of that kind had lately come within his knowledge. To the agricultural interest it held out still greater advantages. The farmer who brought his produce to market could always get _cash_, if he would sell for _cash_; if he chose to sell on a credit, he received a higher price in proportion; that increase of price was his insurance for selling on credit. He was for examining the subject, and endeavoring to remedy defects, rather than repealing. Mr. HOLLAND moved that it be referred to a Committee of the whole House. Carried. FRIDAY, January 14. _Monument to Gen. Gates._ Mr. VAN NESS moved the following resolution: _Resolved_, That a monument be erected in commemoration of the patriotism, valor, and good conduct of Major General Horatio Gates, who, in the late Revolutionary war, commanded the American forces that captured General Burgoyne and the British army under his command, at Saratoga, in the State of New York. _Ordered_, That the said motion be referred to the committee to whom was committed, on the tenth instant, the bill sent from the Senate, entitled "An act to carry into effect several resolutions of Congress for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson, and Scriven." MONDAY, January 17. Two other members, to wit: from Virginia SAMUEL J. CABELL, and from North Carolina ROBERT WILLIAMS, appeared, and took their seats in the House. _Emancipated Slaves from French West Indies._ A memorial of sundry inhabitants of the town of Wilmington, in the State of North Carolina, was presented to the House and read, stating that a certain number of negroes or mulattoes, to whom emancipation has been granted by the Executive of the French Government in the Island of Guadaloupe, had been recently landed at the said town of Wilmington; that, in the opinion of the memorialists, much danger to the peace and safety of the people of the Southern States of the Union in particular, is justly to be apprehended from the admission of persons of that description into the United States, from the West India Islands; and praying that Congress will be pleased to take the premises into consideration, and adopt such effectual measures for prevention thereof, as they in their wisdom may deem proper. _Ordered_, That the said memorial be referred to Mr. HILL, Mr. EARLY, Mr. HUGER, Mr. RANDOLPH, and Mr. CAMPBELL, to report their opinion thereupon to the House. _Case of John P. Van Ness._ Mr. DAVIS called up the report of the Committee of Elections on the case of John P. Van Ness. The House went into Committee of the Whole on the report, as follows: "That, from the free concessions and agreement of the said member, it appears to your committee that he has accepted and exercised the office of a major of the militia, under the authority of the United States, within the Territory of Columbia; and that a paragraph in the sixth section of the first article of the constitution, which expressly provides, that 'No person holding any office under the United States, shall be a member of either House during his continuance in office,' does, in the opinion of your committee, render the acceptance and exercise of the office aforesaid incompatible with the holding, at the same time, of a seat in the House. "Your committee, therefore, ask leave to submit to the House the following resolution, to wit: "_Resolved_, That John. P. Van Ness, one of the members of this House, having accepted and exercised the office of major of militia, under the authority of the United States, within the Territory of Columbia, has thereby forfeited his right to a seat as a member of this House." Mr. VAN NESS said he would make a remark or two that would, perhaps, remove any impressions of indelicacy on his part in retaining his seat under the circumstances in which he was placed. He considered himself as standing on that floor, not as a private individual, but as a Representative of New York; and as holding a trust which he was not authorized to abandon before a constitutional decision should be made. His constituents had placed him there as the guardian of their rights; and that trust he could not desert without a constitutional decision being made. If that decision should be adverse to his retaining his seat, in retiring from the House he should feel no regret but at leaving his constituents unrepresented during the remainder of the session, at not having discharged all the business assigned him by the Chair, and at ceasing to associate with gentlemen whom, for the most part, he respected. In a pecuniary view, the relinquishing his seat could not in the least affect him; nor should he consider it disreputable to leave a body without any imputation of dishonor or impropriety. The reasons he should offer to the committee for retaining his seat, were few and simple. He thought the fair, liberal, and sound construction of the constitution did not affect his case; that the incapacitating provision only applied to civil offices. The constitution was only a digest of the most approved principles of the constitutions of the several States, in which the spirit of those constitutions were combined. Not one of those constitutions excluded from office those who had accepted military appointments, except in the regular service. He, therefore, felt a full conviction that it was never the intention of the framers of the Constitution of the United States to exclude militia officers from holding a seat in Congress. And however important it might be to adhere to the letter of the constitution, yet, when the spirit of it was so clear as it appeared to him, it ought to have weight in the decision of the question before the committee, which might affect objects of great importance. The right of every portion of the Union to a representation in that House was very important, and ought to be respected in all cases which may either directly or indirectly affect it. Gentlemen, therefore, ought to reflect before they deprive a part of the Union of this important right. Had he supposed that the acceptance of an office in the militia would have interfered with his seat in that House, he would never have accepted it. He had never entertained a doubt on this point until broached in the House. Since then, he had heard various opinions. By what he had heard, his own opinion was not changed, as he believed that a true construction of the constitution would exclude his case. Should, however, a decision against his holding his seat be made, he should retire without any other regret than that which he had expressed. He had not risen to argue the case as an advocate, but merely to assign the grounds on which he had acted. The question was then taken on the report of the Committee of Elections, which was agreed to without a division. The committee rose, and the House immediately took up their report. Mr. RANDOLPH observed that, on a precedent so important as was about to be established by the vote of the House, it was unnecessary to say a word. He wished, however, that the disposition of the House to exclude, by a unanimous vote, even the shadow of Executive influence, should be recorded on their journals; for which purpose he called the yeas and nays; which were taken, and were unanimously in favor of the resolution. MONDAY, January 24. A new member, to wit, RICHARD WINN, returned to serve in this House as a member from South Carolina, in the room of Thomas Sumter, appointed a Senator of the United States, appeared, produced his credentials, and took his seat in the House. _Ohio Territorial Delegate unseated._ On a motion made and seconded that the House do come to the following resolution: _Resolved_, That, inasmuch as the late Territory of the United States north-west of the river Ohio have, by virtue of an act of Congress passed on the first day of May, one thousand eight hundred and two, formed a Constitution and State Government, and have thereby, and by virtue of an act of Congress aforesaid, become a separate and independent State, by the name of "Ohio," that PAUL FEARING, a member of this House, who was elected by the late Territorial Government of the Territory north-west of the river Ohio, is no longer entitled to a seat in this House: _Ordered_, That the said motion be referred to the Committee of Elections: that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House. _French Spoliations._ Mr. MITCHILL rose to address the House on a subject of a commercial nature. He alluded to the depredations committed upon the commerce of the United States, by French armed vessels, during the late war in Europe. The gentlemen of the House would, he hoped, turn their attention, for a few minutes, to the numerous memorials received from our merchants during the last session, praying compensation for those losses. These papers were numerous and respectful, and came from a most valuable portion of our fellow-citizens. Their grievances had not hitherto been redressed, nor even inquired into with the minuteness which it appeared to him to deserve. It was true a committee, numerous and intelligent, had been appointed during the last session, to examine the matter of these applications. A report had been made to the House. This report was full of information concerning the political and commercial connection between the United States and France. It comprised a concise and correct history of what had been done on both sides, since the mutual misunderstandings arose. It was a valuable document, as far as it went; but it did not conclude with any recommendation of a mode of relief, or even of investigation. It stopped short with the historical narrative, without proposing even a mode of further inquiry. During the present session, nothing further had been done or attempted. Early after the Congress assembled, he had himself given notice of an intention to revive the subject. It was confessedly of magnitude enough to merit investigation. This notice, he remembered, was given previous to the receipt of the message from the Executive. But the multitude of public business that had grown out of that communication, added to other subjects, had so completely occupied his mind, that he had hitherto suffered it to pass on without bestowing on it the consideration which he owned that it deserved. He was now ready to make amends for this inadvertent or necessary, certainly not intentional, delay. He had heard, with satisfaction, the call of the gentleman from South Carolina (Mr. LOWNDES) for his (Mr. MITCHILL'S) promised motion. He acknowledged the hint of that gentleman to be seasonable, and felt himself obliged to him for acting the part of a good prompter. To show that gentleman that he had profited by the suggestion made on Friday last, he had now risen with an intention to lay a resolve upon the table. The object of the resolve was to cause an inquiry to be entered upon, by a special Committee of the House, as to what amount of property, or its value in current money, had been taken from the Americans during the late war by the cruisers of France. The committee could devise some mode of ascertaining the magnitude of the sufferings complained of. This he considered as the first step that ought to be taken, towards the procuring of redress for the petitioners. And, until this was taken, he believed nothing was likely to be done. Another object of the resolve he was about to offer, was to instruct the same committee to inquire into the different classes of captures and claims. He did not suppose that all the petitioners were entitled to compensation. Some of them, he knew, were not; but it was equally clear that some of them were. This complicated mass of applications could be examined by a committee, who could draw some distinctions that would be useful. They could tell, for instance, that one sort were lawful captures for and on account of contraband, others for want of a _rôle d'équipage_, others were taken wrongfully, without any cause whatever, and the like. Some judgment might be formed in this way of the probable amount that might be contemplated as bona fide claims. He suspected this amount would be but an inconsiderable part of the gross amount of captures. But whether it was large or small, he hoped an examination would be attempted; and, for that purpose, he moved the following resolution: _Resolved_, That a committee be appointed to inquire by what means the value or amount of property taken from citizens of the United States by the French, during the late war in Europe, can be best ascertained, and the several sorts of captures distinguished and classed, and report their opinion thereon to this House, to the end that indemnification may be made. Mr. MITCHILL then said, that he did not press an instant decision upon it; but wished it to lie a day or two on the table for consideration. THURSDAY, January 27. _United States Judges._ The several petitions of William Tilghman, Oliver Wolcott, Richard Bassett, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, Philip B. Key, William Griffith, Jeremiah Smith, and George K. Taylor, were presented to the House and read, respectively representing, that, by an act of Congress, passed on the thirteenth day of February, one thousand eight hundred and one, entitled "An act for the more convenient organization of the courts of the United States," certain judicial offices were created, and courts established, called Circuit Courts of the United States: That, in virtue of appointments made under the Constitution of the United States, the petitioners became vested with the offices so created, and received commissions, authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior: That, during the last session, an act of Congress passed, by which the above-mentioned law was declared to be repealed; since which no law has been made for assigning to the petitioners the execution of any judicial function, nor has any provision been made for the payment of their stipulated compensations: That, under these circumstances, and finding it expressly declared in the Constitution of the United States that "the Judges both of the Supreme and Inferior Courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office," that petitioners are compelled to represent it as their opinion, that the rights secured to them by the constitution, as members of the Judicial Department, have been impaired: That, "with this sincere conviction, and influenced by a sense of public duty, they most respectfully request of Congress to review the existing laws, which respect the offices in question, and to define the duties to be performed by the petitioners, by such provisions as shall be consistent with the constitution, and the convenient administration of justice:" That "the right of the petitioners to their compensations, they sincerely believe to be secured by the constitution, notwithstanding any modification of the Judicial Department, which, in the opinion of Congress, public convenience may recommend. This right, however, involving a personal interest, will cheerfully be submitted to Judicial examination and decision, in such manner as the wisdom and impartiality of Congress may prescribe: That judges should not be deprived of their offices or compensations, without misbehavior, appears, to the petitioners, to be among the first and best established principles of the American constitutions; and, in the various reforms they have undergone, it has been preserved and guarded with increased solicitude: That, on this basis, the Constitution of the United States has laid the foundation of the Judicial Department, and expressed its meaning in terms equally plain and peremptory:" That, "this being the deliberate and solemn opinion of the petitioners, the duty of their stations requires that they should express it to the Legislative body. They regret the necessity which compels them to make the representation; and they confide, that it will be attributed to a conviction that they ought not, voluntarily, to surrender rights and authorities intrusted to their protection, not for their personal advantage, but for the benefit of the community." Mr. GRISWOLD moved a reference of the foregoing memorial to a select committee. Mr. GREGG observed that, according to the usual mode of transacting business, it ought to go to the Committee of Claims. He, therefore, made that motion. Mr. RANDOLPH did not think a select committee, or the Committee of Claims, a proper committee to whom to refer this memorial. What is its nature? Does it embrace any point of fact on which a committee is to make inquiry? No. It is a broad constitutional question. He was, therefore, in favor of having it examined, where it must eventually be settled, in the House. If, therefore, the memorial had any reference, it ought to be referred to a Committee of the whole House; to which effect he made a motion. Mr. BACON hoped this last motion would not obtain. He did not know what there was in this petition to distinguish it from any other petition from any citizens of the United States. It was suggested that it involved a great constitutional question. He did not know that this was the case. Any thing might be made a constitutional question. But he thought this question had been already determined by the whole Legislature on the most mature deliberation. He saw nothing to distinguish this petition from other petitions. He would not say that it would be doing it too much honor, but it would be making too wide a difference between similar applications to adopt this course. He was, therefore, for pursuing the common course. Mr. GRISWOLD had no objection to a reference of the memorial to a Committee of the Whole. Perhaps that would be the better mode. It was true, as the gentleman from Virginia had stated, that a very important constitutional question may arise on this memorial. Nor did he know, as represented by the gentleman from Massachusetts, (Mr. BACON,) that all the constitutional questions involved in the subject had been settled by the decision of the last session. He had understood the gentleman himself, in his speech, during the last session, to have said that the question of compensation was a very different question from that then under discussion. He was not absolutely certain that that gentleman expressed such an opinion, but he was certain that some gentlemen of the majority did. As the memorial was couched in terms of great respect, he trusted there would be no objection on the part of the House to give it a proper attention. Mr. RANDOLPH would concisely answer the gentleman from Massachusetts. Does this question involve an inquiry either into matter of expediency or of fact? With respect to fact, they were all agreed. The judges make the question turn on a construction given to the constitution; it was, therefore, indubitably a constitutional question, on which a committee could not decide. The House, then, must decide. It appeared to him to be the plainest case on earth. No doubt constitutional questions may arise on many points. He hoped, therefore, the House would itself decide it. For his part, he considered the decision as already made. He hoped the memorial would be taken up that day. Mr. SMILIE was against referring the memorial to a Committee of the Whole. If the subject had not been already maturely considered and discussed at the greatest length, he should be in favor of such a reference. But it had been most fully discussed. If they meant to sit there to the neglect of the important business, they ought to go into Committee of the Whole; but if they meant to do the public business, they ought not. Gentlemen should recollect the time spent in this discussion the last session. Mr. DANA thought the gentleman from Pennsylvania did not calculate correctly. The same object, as to debate, would be attained in the House as in a Committee of the Whole. For he would recollect, that notwithstanding the length of the debate of the last session, and though the House were in Committee, no gentleman had spoken more than once; and, according to the rules of the House, every member had a right to speak twice. Mr. DANA said that he agreed with the gentleman from Virginia in the ideas he had expressed. The question was then taken on Mr. RANDOLPH'S motion to refer the memorial to a Committee of the whole House, and carried--ayes 53. The SPEAKER inquired for what day it should be made the order. Mr. RANDOLPH said, to-day. Mr. GRISWOLD, to-morrow. The question was taken on Mr. GRISWOLD'S motion, and lost--ayes 38, noes 51. Mr. HUGER moved that it should be the order for Monday. It must be evident, that the members had not yet sufficiently attended to the subject to be prepared for a decision. It was a very different question from that decided the last session. It certainly required some little time to enable gentlemen to revolve it in their minds. It was not usual to force decisions in that way. If it was the object of gentlemen merely to vote it out, a majority must do as they please; but if they were disposed to pay it ordinary respect, they certainly could not urge so precipitate a discussion. Mr. RANDOLPH asked if it were in order, after the question had been taken, to name another day. He said he would not have urged an immediate consideration of the memorial, but for the conviction that the subject, in all its bearings, had undergone the maturest investigation, not only of every member on that floor, but of every thinking man in the United States. The SPEAKER decided that the moving another day was not in order. The question on going into a Committee of the Whole this day, was then carried without a division. Whereupon, Mr. RANDOLPH moved that the House should go into committee immediately. The SPEAKER said the unfinished business of yesterday would be the first acted upon unless postponed. Mr. RANDOLPH moved the postponement of the unfinished business till to-morrow. Carried. The House then resolved itself into a Committee of the Whole on the memorial--Mr. DAWSON in the chair. The memorial of William Tilghman was read; which was accompanied by ten other _verbatim_ memorials, signed by Oliver Wolcott, Jeremiah Smith, Richard Bassett, Philip B. Key, George K. Taylor, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, and William Griffiths. Mr. GRISWOLD said, he did not think it proper to enter into an extensive discussion of the memorial. The haste with which the consideration of it was urged, appeared to him indicative of a disposition to reject it altogether. Under such circumstances discussion would be useless. At the same time, he would remark, that it involved a question very different from that decided at the last session. It had, then, been decided that the Legislature had the constitutional right to deprive the judges of all Judicial power; but the question never was settled, that, notwithstanding the judges should be deprived of all their Judicial powers, they were not entitled to the compensation guaranteed by the constitution. This involved a distinct point, which ought not to be hastily acted upon. The judges had never been heard before Congress on this question. They had a right by the constitution to be heard, and to be heard by counsel, he presumed, if they desired it. He had thought the House would have given time for them to be heard. But they had determined to proceed immediately. He should, therefore, be content with moving two resolutions. Mr. GRISWOLD here read his resolutions as follows: _Resolved_, That provision ought to be made by law to define the powers to be exercised by the judges of the circuit courts of the United States, who were appointed under an act, entitled "An act to provide for the more convenient organization of the courts of the United States." _Resolved_, That provision ought to be made by law for submitting to judicial decision the right of the judges of the circuit court to their compensations. Mr. RANDOLPH said, the provision desired by the gentleman from Connecticut already exists. The Legislature has defined the powers of the late circuit judges, and has decided that they shall not execute any powers. Those powers are transferred to other courts. Unless the House had changed their opinion, it was not necessary to go into any discussion on this point. The readiest and fairest course for gentlemen would be to propose to repeal the law of the last session, and restore the judges. The question was then taken on the first resolution, and lost--ayes 34, noes 56. The CHAIRMAN then read the second resolution, as follows: _Resolved_, That provision ought to be made by law for submitting to judicial decision the right of the judges of the circuit court to their compensations. Mr. RANDOLPH said he was not ready for the question. He had one or two remarks to offer, which had suggested themselves during the reading of the resolution. It had been repeatedly decided that the United States would not permit themselves to be brought into their own courts. Wherefore grant to a particular class of persons, in a single case, that which had ever been refused to the war-worn soldier of the Revolution; especially when it should be recollected that this case, involving the interests of judges, as a _caste_, could not be decided by any judicial tribunal free from bias? A doctrine is advanced new to this House, which I have been told originated with an eminent character on the bench of the United States; I did not hear the gentleman from Connecticut distinctly, but I understand him as subscribing to it; that Congress may, constitutionally, deprive a judge of all authority, and transfer to another his powers and duties, but that the office nevertheless remains, and the judge, of course, entitled to his compensation. The constitution says that "the judges shall hold their offices during good behavior, and shall, for their services, receive a compensation." Without entering into a question which has already been so fully discussed, he would barely remark, that if the position just advanced be correct, the words "compensation" and "office," which the constitution supposes, and every one believes, to have distinct and different meanings, must be convertible terms. For when the powers and duties are taken away, what, let me ask, is left but a salary? The word office must be rendered by the word salary. Mr. DANA.--The question of compensation to the judges involved considerations very distinct from those ordinarily decided upon in that House. Most of the individual cases brought here were made in pursuance of some particular law, and did not call in question the authority of Congress. If the case of the judges were to be referred to any tribunal, the right to refer was founded on the principle of controlling the decisions of the Legislature in case those decisions should appear to the tribunal to be unconstitutional. It was, therefore, in this view not proper to refer the question to a tribunal dependent on the body to be controlled. This was the only course that would probably be deemed impartial by all the parties concerned. Mr. BACON said the true question was on the constitutionality of the repealing law. One Congress had passed a law constituting certain courts, which at the last session had been repealed. Now of what do courts consist? Of judges, who are officers of the court. The question is, whether by abolishing the courts, these officers are abolished. He supposed they were. He considered the terms as synonymous. Now the question is whether, if the offices are abolished, those who filled them before they were abolished are entitled to salaries? That is the only question that remains undetermined. What does the constitution say? Admitting the offices abolished, it says: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." Does it not follow that if they continue in office they are entitled to a salary for the services they perform. If they do not continue in office they are entitled to nothing, and the constitution has no reference to them. This is the true question. Mr. SMILIE would ask whether the Supreme Court in such a case as this could be denominated an impartial tribunal? He asked if they had not seen the time when, during the disputes between the clergy and laity, no wise man, not of the clerical order, would have trusted himself in the hands of the clergy? The same remark applied to the military, and also, with equal force, to the Judges of the Supreme Court. He really, however, thought that the judges would not receive the salaries, even if they were offered to them, as it would be contrary to every idea of patriotism. He, therefore, considered the application as a mere matter of form. Mr. NICHOLSON.--The resolution contemplated giving the power to try the right of the judges to their claims; but the great object in reality was to authorize the judges of the Supreme Court to decide upon the constitutionality of the repealing act. Let this object, then, be avowed; let it be so declared openly, and not introduced in this incidental manner. From the remarks made last year by gentlemen on the other side of the House, it was a little surprising that this application should be made, for it was then strenuously contended that the Supreme Court had the right to decide upon the constitutionality of all laws. Why, then, ask for it? If they have this right we need not confer it; if they have it not, we cannot give it them. If the petitioning judges can bring their case before the Supreme Court, let them do so; my consent shall never authorize it. If the Supreme Court shall arrogate this power to themselves, and declare our law to be unconstitutional, it will then behoove us to act. Our duty is defined. Mr. EUSTIS said when the office of judge was abolished all his duties ceased. The salary allowed was a compensation for services. Now when there were no services to be performed, what salary could there be allowed, or what retribution demanded? on what did this claim rest? On the opinion of the judges. But by the decision of the last winter their offices were abolished; it followed, therefore, of consequence, that their salaries ceased too. This was a plain and simple question. He considered the memorial as the protest of the judges against this decision. As such, he was willing that it should rest on the files of the House, and instead of being offended at this treatment the judges ought to be thankful. Mr. DANA said the ideas of the gentleman from Massachusetts were in one respect correct. The memorial of the judges was a protest against the law passed by Congress. It was proper they should make it, so far as they confined themselves to language not indecorous or disrespectful. He would admit likewise that the question of powers decided the question of salary; others however entertained a different opinion. Why object then, in a case where there was a difference of opinion, to refer the decision to an impartial tribunal? The only question is whether in a contest for power, you, the Legislature, will claim the exclusive exercise of power, and whether, even if you shall exceed the constitutional limits, you will assert the entire right of saying so, or whether you will refer it to a tribunal which shall be an umpire between those who hold different opinions? Mr. ALSTON said the resolution required amendment. As it now stood, it would appear that all the late judges of the circuit court claimed a compensation for services not rendered. He believed this was not the case. There were some of those judges who had made no such request. He, therefore, moved to insert the name of those who had presented memorials; also to insert the word "late" before the word "judges." Carried without a division. The resolution as amended stood thus: _Resolved_, That provision ought to be made by law for submitting to judicial decision the right of William Tilghman, Oliver Wolcott, Jeremiah Smith, Richard Bassett, Philip B. Key, George K. Taylor, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, and William Griffiths, late judges of the circuit court appointed under an act entitled "An act to provide for the more convenient organization of the courts of the United States passed on the thirteenth day of February, 1801;" which said act was repealed at the last session of Congress, to their compensations. On which the question being put, it was lost--ayes 35 noes 57. Mr. VARNUM observed that the memorial contained two principles, both of which had been negatived. To draw the attention to a final decision he would move another resolution, to wit: _Resolved_, That the prayer of the petition of William Tilghman and others, (naming them,) late judges of the circuit courts of the United States, ought not to be granted, and that the petitioners have leave to withdraw their petitions. Mr. T. MORRIS moved that the committee should rise and report progress, that the petition might be printed. Negatived without a division. The resolution was then carried without a division, when the committee rose and reported it. The House immediately took it into consideration; when Mr. RANDOLPH moved to strike out the words, "late judges of the circuit courts of the United States." Mr. GRISWOLD said he presumed it was not the object to expunge all evidence of these gentlemen being judges, or late judges of the circuit courts of the United States, and yet that would appear to be the effect of the motion. He must, therefore, call for the yeas and nays, which would make that fact be recorded on the journals. Mr. RANDOLPH said he had made the motion that the resolution might conform to the prayer of the petition. Had the memorialists called themselves late judges, he should have had no objection to their being so designated in the resolution. His wish was to style them in the resolution as they had styled themselves. Mr. GRISWOLD said, though they had not expressly styled themselves circuit judges, yet they had stated that they had been appointed circuit judges under a law of the United States. They had therefore virtually so styled themselves. A few words were added by Mr. EUSTIS against it, and by Messrs. RANDOLPH and NICHOLSON in favor of striking out the words, when the question was taken by yeas and nays and carried--yeas 50, nays 47. And then the main question being taken, that the House do agree to the resolution reported from the Committee of the whole House, amended to read as follows: _Resolved_, That the prayer of the petitions of William Tilghman, Oliver Wolcott, Richard Bassett, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, Philip B. Key, William Griffith, Jeremiah Smith and George K. Taylor, ought not to be granted; and that the petitioners have leave to withdraw their petitions. It was resolved in the affirmative, yeas 61, nays 37, as follows: YEAS.--Willis Alston, John Archer, John Bacon, Phanuel Bishop, Walter Bowie, Richard Brent, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, Thomas T. Davis, John Dawson, William Dickson, Peter Early, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Edwin Gray, Andrew Gregg, John A. Hanna, Daniel Heister, Joseph Heister, William Helms, William Hoge, James Holland, David Holmes, George Jackson, Michael Leib, David Meriwether, Samuel L. Mitchill, Thomas Moore, James Mott, Anthony New, Thomas Newton, jun., Joseph H. Nicholson, John Randolph, jr., John Smilie, Israel Smith, John Smith, (of New York,) John Smith, (of Virginia,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Isaac Van Horne, Robert Williams, Richard Winn, and Thomas Wynns. NAYS.--Thomas Boude, John Campbell, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, Abiel Foster, Calvin Goddard, Roger Griswold, William Barry Grove, Seth Hastings, Joseph Hemphill, Archibald Henderson, William H. Hill, Benjamin Huger, Samuel Hunt, Thomas Lowndes, Ebenezer Mattoon, Lewis R. Morris, Thomas Morris, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, William Shepard, John Cotton Smith, John Stanley, John Stratton, Benjamin Tallmadge, Samuel Tenney, Samuel Thatcher, Thomas Tillinghast, George B. Upham, Killian K. Van Rensselaer, Peleg Wadsworth, Lemuel Williams, and Henry Woods. FRIDAY, January 28. _Presents to a Minister's Wife._ Mr. SPEAKER laid before the House a letter from Col. Humphreys, late Minister at the Court of Madrid, stating that, when he was about to leave that Court, the Minister of State urged his acceptance of the customary present from His Majesty. Col. Humphreys informed him that he could not, consistently with the constitution of his Government, accept the present. The Minister continued to press the acceptance, and urged that as he was no longer an officer of the United States, there could be no impropriety in his receiving it. Col. H. replied that, though he was then out of office, there would still, in his opinion, be an indelicacy in the acceptance, and that if he should receive the present designed for him, he should consider it as his duty to deliver it into the hands of the President of the United States, to be disposed of at the pleasure of the Government. Under these circumstances he left the Court of Madrid; and upon his arrival in the United States, he found a casket of valuable female ornaments addressed to Mrs. Humphreys, which, though unaccompanied by any letter, he presumed to be a present from the Queen of Spain. Doubting the propriety of accepting it under such circumstances, Mrs. Humphreys presented the casket to the President of the United States, who put it into the hands of the Secretary of State. The Secretary of State declining to decide the constitutional question, whether Mr. Humphreys could with propriety retain it, ordered it to be returned to him for the purpose of being sent back to Spain, or otherwise disposed of as he may think proper. Mr. Humphreys refused to receive it back on such terms: it consequently remains with the chief clerk in the Department of State, and Mr. H. now requests Congress to give orders for sending it back to Spain, or for disposing of it in such other way as they may think proper. He makes the same request respecting a sword presented him by the Dey of Algiers, which is also in the hands of the chief clerk of the Department of State, under similar circumstances. The subject, after considerable conversation in the House, was referred to a select committee to report their opinion thereon. _French Spoliations._ Mr. MITCHILL called up his resolution respecting French depredations, as follows: "_Resolved_, That a committee be appointed to inquire by what means the value or amount of property taken from citizens of the United States by the French during the late war in Europe can be best ascertained, and the several sorts of captures distinguished and classed, and report thereon to this House, to the end that indemnification be made." Mr. BAYARD offered an amendment, which was agreed to, striking out the latter part of the resolution, and instructing the committee to report their opinion whether indemnification shall be made. After a very desultory debate on referring the resolution to a Committee of the Whole, or to a select committee, and the rejection of a motion of reference to a Committee of the Whole, the question was taken on the resolution as amended, which was determined in the negative--ayes 34, noes 39. The House adjourned. MONDAY, January 31. Another member, to wit, JOHN FOWLER, from Kentucky, appeared, and took his seat in the House. _French Spoliations._ Mr. BAYARD observed that a resolution offered some days since by a gentleman from New York, (Mr. MITCHILL,) of considerable national, and of great individual importance to a large description of citizens, appeared to him to have been disagreed to more from considerations of form than substance; as the merits of the subject were not, on that occasion, brought into discussion. In order to meet the ideas of gentlemen who desired, in the first instance, to decide the principle whether indemnity ought to be made to our merchants, he submitted the following resolution: _Resolved_, That provision ought to be made by law, to indemnify the citizens of the United States who, in carrying on a lawful trade to foreign parts, suffered losses by the seizure of their property made by unauthorized French cruisers, or by any French cruiser, without sufficient cause, in violation of the rights of American commerce, during the late war between Great Britain and the French Republic, and whose claims for indemnity against the said Republic were renounced by the United States, by their acceptance of the ratification of the treaty lately made with France. Mr. BAYARD moved the taking up the resolution for consideration; on which the House divided--yeas 39, nays 45. Resolution ordered to lie on the table. About 3 o'clock the galleries were cleared, and the House remained with closed doors till 4 o'clock, when they adjourned. WEDNESDAY, February 2. _French Spoliations._ Mr. HILL called for the order of the day on the bill to prohibit the importation of certain persons, whose admission is prohibited by laws of the States. Mr. BAYARD requested the gentleman to waive his call for one moment, to enable the House to take his resolution respecting French spoliations, laid some days since on the table, into consideration for the sole purpose of giving it a proper disposition. His object, some days since, when he called it up, was to have it referred to a Committee of the whole House, not to urge its discussion on that day. His object was now the same, and his sole wish was that it should be referred, and a day named for its consideration. As, however, said Mr. B., it may be voted down now, as it then was, without any reasons being assigned, gentlemen will excuse me for calling the yeas and nays. I hope gentlemen will so far at least comply with the forms of justice as to suffer the case to be considered, whatever may be their ultimate decision upon it. Mr. RANDOLPH said he would ask the gentleman from Delaware, whether he had seen any indisposition in that House to discuss the subject? For his part he had seen none, either in the House or in any individual member. He felt no objection to take up the subject at any time, and to discuss, or rather to hear the gentleman from Delaware discuss it. He hoped, therefore, the gentleman would not persist in taking up the time of the House by calling the yeas and nays. Mr. BAYARD said he had seen an indisposition in the House to discuss the subject; and the reason why the gentleman from Virginia had not seen it was, that he was not in his place on the day he had before moved that the resolution should be taken up. Had he been in his place, he would have seen that a motion to take it into consideration had been rejected without a single reason being assigned. But under the assurance of the gentleman, that there was no aversion to consider the subject, he would waive his call for the yeas and nays. Mr. RANDOLPH said he spoke only for himself. Mr. BAYARD replied that he then persisted in the call. The yeas and nays were then taken on taking up the resolution; and were--yeas 65, nays 26. The resolution was referred to the Committee of the Whole without opposition. When Mr. BAYARD moved that it be made the order for Monday next. Mr. R. WILLIAMS moved the 3d of March. Mr. GREGG thought it was best to take the resolution up fairly and decide it at once. Mr. R. WILLIAMS said he was willing to meet it fairly, but he thought one day sufficient for the investigation. Mr. HUGER had no hesitation in saying this was a question of great moment, and one well worthy of the deliberate attention of the House. To be sure, if there was a great press of important business, he would acquiesce in its postponement. But this was not the case. There was no business before the House of pressing importance. He was in favor of a fair and full investigation of the subject. The motion to make it the order of the day for the last day of the session, when the press of other business would absolutely preclude any attention to it, was tantamount to a refusal of all investigation whatever. Unless the motion was withdrawn, he would, therefore, call for the yeas and nays. Mr. BACON said his mind preponderated against the claim. But to him it appeared that a postponement to such a day, would be the same as declaring the claim should not be attended to. If the claim should be sustained by the vote of the House, it would surely require more than one day to make the necessary arrangements for carrying it into the shape of a law. Mr. BAYARD.--No doubt the observation of the gentleman from Massachusetts is correct, that a postponement to the last day of the session is, in effect, precisely the same as to reject the claim altogether. Gentlemen ought to consider that our sole object is to bring into discussion the claims of our citizens. I do not undertake to express any opinion of the validity of the claims. No member on the floor is less personally or locally interested than I am. But I do think that no claim whatever, of the meanest nature, should be decided upon until the party is heard. Many of our citizens, who have incurred losses, suppose they have an equitable claim on the Government. The claims have been announced in the public papers, and in petitions on the files of this House. Is it then for this House to say they will not attend to the petitions of our citizens? For what do we ask? Simply for a discussion, and that a decision shall not be made until those who consider themselves aggrieved shall be heard. Are gentlemen unwilling to trust themselves, lest their own consciences should compel them to an act of justice? But I will abstain from going into the merits of the subject. I will only repeat that there is no petition, however worthless, but the House pays it a decent respect, by referring it, and allowing time for its examination. Will they then, in a case of such magnitude as this, where there are so many claims, so variously characterized, will they refuse this ordinary measure of respect? I will expect a different decision from the justice and candor of the House. Mr. R. WILLIAMS said he would withdraw his motion, and move that the subject be made the order of the day, for the first day of March, which would allow sufficient time for a full and fair investigation. Mr. SMILIE did not know what the gentleman from Delaware meant, when he said we were not willing to trust our consciences. He hoped every gentleman had as good a conscience as the gentleman himself. For his own part, if there was time to discuss this subject, he would be willing to hear it discussed, and it would then appear who brought the merchants into their misfortunes, and who occasioned their losses. But, as he believed there was not now time, he thought it best to postpone the consideration of the subject until the next session, when it would fully appear who had been the friends, and who the enemies of our merchants. In the mean time he would only add that he would never be one of those who would consent to tax the agricultural interests of the country to pay the merchants. Mr. RUTLEDGE observed that it was important that our merchants should be extricated from their present embarrassments. They wish to know the disposition of Congress on their claims. This cannot be done if the present motion obtain; for the subject, in that event, will be disposed of this session precisely as it was the last. It was then referred, at an early period, to a committee with whom it slept until near the close of the session, when a report, merely of facts, was made. The report was then made at a late day of the session, and the House never took it up. It is now proposed to be postponed until a very late day of this session, and it will then not be taken up. Whatever the opinions of some gentlemen may be, it is a fact that many honorable and unfortunate merchants are now struggling with their misfortunes, produced by French spoliations, whom the hope of relief from Government has saved from ruin. They wish to know their fate, and no longer to be kept in suspense. Let their claims then be decided at once; and if gentlemen are ready to say they shall not be indemnified for losses, which, but for the renunciation of the treaty, they would have been indemnified for by France, let them say so. It is known that France would have indemnified for these losses, but for the treaty. The most respectable letters have been received from France to this effect; and Mr. R. said the fact was within his own personal knowledge. Under these circumstances the claims ought to be taken up and decided upon speedily. If the gentlemen were serious in naming so late a day, the House must be troubled with the calling of the yeas and nays; as it was impossible to expect that any thing that would be effectual could be done after the first of March, as all the measures adopted by the House required the concurrence of the Senate and the details of a law. Mr. R. WILLIAMS said he never permitted himself to propose any thing to that House in which he was not serious. He was serious in his belief that if his motion should be adopted there would be full time allowed for an investigation of the subject. He was in favor of the distant day he had named, inasmuch as he was convinced that it would protect the House from the unnecessary consumption of a great deal of time, and which, if taken up now, would interfere with the transaction of much important business. Full time would still be allowed to decide the question of indemnity. He did not know that more was required this session by any body. He had not heard any member say that a law would be necessary this session. All that was required was a decision preparatory to a law. In his opinion this was an improper time to discuss the merits of the subject; he should, therefore, make no reply to observations of this nature, which, he thought, had been improperly offered at this stage of the business. Mr. BAYARD said he had not fallen into the same mistake with his honorable friend from South Carolina, in considering the gentleman from North Carolina in earnest in the motion he had made. He had not thought him serious, as the day named by him was so late as not to allow time sufficient for a fair discussion. The gentleman was not a new member, and his experience could tell him how imperiously the House were occupied, during the last two or three days of its sitting, in detail indispensably necessary to complete business already begun. He had seldom known the close of a session, when it had not been necessary to sit on Sunday or till midnight. How then could it be expected that, at such a period, even the semblance of justice could be done to the subject? Whereas, if it were earlier attended to, they might consult their own convenience. If it happened, as had heretofore been the case, that they had more time than they knew what to do with, a much earlier day could be fixed on. But should the subject be postponed till the first day of March, it might be said, if the House should not then go into committee on it, that a day so late had been named with a view of deferring the subject to the next session. While, if the House, actuated by magnanimity and justice, shall go into its consideration, it would put it in the power of a minority, or even a few members, to prevent the transaction of other important business. Mr. B. said he would not pledge himself; but he rather thought the subject could be discussed in the course of one day. The gentleman from Pennsylvania had mistaken him on the point of conscience. This was not astonishing, as that gentleman often made mistakes. He had said nothing about the conscience of that gentleman, as he knew nothing about it. He was asked whether gentlemen were unwilling to trust themselves, lest their own consciences should compel them to do an act of justice. This was all he had said, and it had not been said with any view to impeach the conscience of any gentleman on the subject. Mr. BACON hoped this business would be so conducted as to show a disposition on the part of the House to meet these claims on honorable and fair principles, and so as to manifest no indisposition to a fair and full discussion. It was undoubtedly a serious question. There were a number of respectable characters interested in the decision--respectable, because citizens of the United States. He hoped their claims would be treated with all the candor and liberality they had a right to expect. He apprehended that two or three days were not sufficient, amidst the crowd of other business at the end of a session, for a fair and full examination. He should, therefore, vote against the motion. Mr. DAWSON hoped the motion would prevail. A resolution in a great measure similar to that now proposed by the gentleman from Delaware had been offered some time since by a gentleman from New York. It was moved to refer that motion to a Committee of the Whole and negatived; afterwards a motion was made to refer it to a select committee, which was also negatived. He did conclude, from these decisions, that a majority of the House were not disposed to discuss the merits of the question this session. He believed this was still the sentiment of the majority, who considered the subject as not yet ripe for decision. He, therefore, thought the taking it up at an early day would only serve to waste time. Mr. GREGG said, that so far as his mind was made up, he was against the claim; but he was, notwithstanding, in favor of a full discussion of it. The subject had been attended to. The committee appointed last session had gone into a laborious investigation of it; and had made a report containing very important statements and facts. He wished the consideration to be so far delayed, as to allow time for the printing of this report. He was against a postponement to the first day of March; but thought the second Monday in February would answer. Mr. THATCHER said he felt gratified at the House manifesting more liberality in giving an opportunity now to discuss the subject than had been manifested before. Attempts made during the last session to discuss the subject had ended in nothing. This session, when the gentleman from New York (Mr. MITCHILL) had offered a resolution, it had been negatived. The motion of the gentleman from Delaware (Mr. BAYARD) to take up the present resolution had also been negatived. But now a considerable majority were for taking it into consideration. He was, however, surprised at the motions for making the consideration of the subject the order of the day for the first and third of March, as they would in effect frustrate all discussion, from the press of other business. The subject was of infinite importance; millions depend upon the decision. The merchants were anxious to know the result. A state of suspense was, of all states, most painful to them. Why then put off the decision of a claim in his opinion just, and to which the House ought not to shut their ears? Mr. EUSTIS said, whatever may have been the intention of the mover to postpone to the first of March, and of the intentions of gentlemen on this or any other occasion, he had no disposition to inquire--the tendency of the postponement will be to preclude a deliberate discussion. Those more conversant with the course of business knew, better than he did, the pressure of business which necessarily crowded the last days of a session; and he was more averse to the motion from the avowal of an honorable gentleman from Virginia, (Mr. DAWSON,) who had risen to support the motion, and avowed his principal reason to be a conviction that the present Congress ought not to take any decisive measures on the subject of the claims. He differed widely from that gentleman. Independently of the magnitude and extent of these claims, and of the situation of those concerned, the House were called upon by a sense of public duty to bestow upon them a cool and deliberate consideration, which on ordinary occasions was extended to applications of an individual and inferior nature. The common course of business brings this subject to view. It will be recollected that, at the last session of Congress, the memorials of the claimants were referred to the consideration of a select committee. That committee reported a state of facts, and closed their report with the following words: "Upon the whole view of the case, the committee submit it to the House, to determine whether the Government of the United States are in any respect bound to indemnify the memorialists; and whether there be any ground for discrimination between the cases of losses sustained before the acts of the 28th of May, 1798, the 7th of July, 1798, and the 9th of July, 1798; and cases of losses sustained after those periods." From the late day of the session in which this report was made, no order was taken on it, no discussion was had. By this part of the report facts are offered for consideration; data are furnished; a discrimination, in point of time, and of course in point of merit, is made; and the final determination is submitted to the House. A sense of justice to the memorialists and a strong sense of public duty require that we meet the question and come to a decision. Those who appear already to have judged the question may possibly see in the statements which have been made, and the arguments by which the claim will be supported, reasons to alter their opinions. In any event, and especially after a discussion, in case of an adherence to those opinions they appear already to have formed, if they fail to produce conviction on others, the reasons on which they ground those opinions may be useful to the House, and will accompany and justify the vote they shall finally give. When the question shall be decided (and I hope it will be in favor of an earlier day than that moved for) I shall move that the report of the committee of the last winter shall be referred to the Committee of the Whole, together with the resolution under consideration. It will be also proper at that time to give a second reading to the memorials which have been presented--the grounds on which they rest their claim will be brought again into view, and by giving them a free discussion and consideration we shall be better enabled to come to a just decision. These claims, like conscience, are of no party; the misfortune has been indiscriminate, and it is to be expected the final determination will be just. Mr. HOLLAND advocated a full discussion, and the assignment of an early day. When the yeas and nays were taken, on making it the order of the day for the first of March, and it was decided in the negative--yeas 18, nays 74. On motion of Mr. BAYARD it was made the order for the second Monday in February. THURSDAY, February 3. _Amy Dardin's Claim._ A petition of Amy Dardin, of the county of Mecklenburg, in the State of Virginia, widow and relict of David Dardin, deceased, was presented to the House and read, praying compensation for the value of a stud horse, called Romulus, the property of the deceased, which was impressed into the service of the Southern army under the command of Major General Greene, by order of James Gunn, captain in a regiment of Continental cavalry, some time in the month of July, one thousand seven hundred and eighty-one. Referred to the Committee of Claims. TUESDAY, February 8. _District of Columbia._ The House went into a Committee of the Whole on the following resolutions, offered by Mr. BACON: "_Resolved_, That it is expedient for Congress to recede to the State of Virginia the jurisdiction of that part of the Territory of Columbia, which was ceded to the United States by the said State of Virginia, by an act passed the third day of December in the year 1789, entitled, "An act for the cession of ten miles square, or any lesser quantity of territory, within this State, to the United States in Congress assembled, for the permanent seat of the General Government." _Provided_, the said State of Virginia shall consent and agree thereto. "_Resolved_, That it is expedient for Congress to recede to the State of Maryland the jurisdiction of that part of Columbia which was ceded to the United States by the said State of Maryland, by an act passed the 19th day of December, in the year 1791, entitled "An act concerning the Territory of Columbia and the City of Washington:" _Provided_, That said State of Maryland shall consent and agree thereto." The first resolution being read, Mr. SMILIE said it was not his wish to take up the time of the House, but barely to assign, in a few words, his reasons for the vote he should give. In the last Congress he had voted against the assumption, and he had heard no reasons since to change his opinion on the propriety of that vote. He should, therefore, vote now for a retrocession. He never could understand the reason for giving Congress an exclusive jurisdiction over ten miles square. He believed there was but one reason: It had been thought good policy to introduce this article into the constitution to facilitate its adoption, as it was known that all parts of the Union were anxious to have the seat of Government. It did not appear to him, in any proper point of view, necessary that Congress should possess such exclusive jurisdiction. There was no doubt that, let Congress sit where they would, they would always have sufficient power to protect themselves. Unfortunately, however, there was on this subject an association of ideas in the minds of many persons, not in the least connected, which was, that the residence of Congress in this place, and their possessing exclusive jurisdiction, was the same thing. If the exercise of exclusive jurisdiction could have any effect on his mind, as to the other point, it would be directly opposite, as he would much rather sit here without than with exclusive jurisdiction, as we cannot possess this authority without depriving the citizens of rights which were the most dear to them. When he looked around him, and saw no man, unless a stranger, who was not a political slave, he felt the most painful sensations. Under our exercise of exclusive jurisdiction the citizens here are deprived of all political rights, nor can we confer them. If Congress can derive no solid benefit from the exercise of this power, why keep the people in this degraded situation? It is true, this place may be settled by foreigners; but can we suppose that any native citizen, who values his political rights, will come here? For the honor of the country, he must suppose there would be none. Why not then restore the people to their former condition? Mr. S. concluded by declaring that the act of retrocession would have no effect upon his mind as to staying here. Mr. BACON said he would state, in a few words, the reasons that influenced him in submitting these resolutions. In the first place, he knew of no advantage which the United States derived from retaining the exclusive jurisdiction of the District. Therefore, if the States to which it originally belonged were disposed to take it back, there could be no objection derived from this consideration. In the second place, it appeared, from their short experience, that the exercise of exclusive legislation would take up a great deal of time, and produce a great expense to the nation; and it was probable that, in the course of events, the trouble and expense would increase with the increasing number of the inhabitants. Should justice be done to the exercise of this power, it was likely that as much time would be spent in legislating for this District as for the whole United States. It was certain that very considerable time would be consumed. They would likewise be subjected to other expenses than those attendant on legislation. In the next place, the Government would be very diverse from that in the other parts of the Union. He would rather see the Government in the United States uniform. Here the citizens would be governed by laws, in the making of which they have no voice--by laws not made with their own consent, but by the United States for them--by men who have not the interest in the laws made that legislators ought always to possess--by men also not acquainted with the minute and local interests of the place, coming, as they did, from distances of 500 to 1,000 miles. From these considerations, he inferred their incompetency to legislate for this District, whatever their disposition might be. These were the principal reasons that influenced his mind. They might however, perhaps, be easily obviated by the reasons of other gentlemen, which he would be glad to hear. Mr. HUGER was opposed to the resolutions, first, because he was not inclined hastily to make alterations in the great national compact that held us together. It appeared to him that, though they might not always understand the reasons on which a part of it was founded, yet it was prudent not to change it until experience had clearly proved its inconvenience. It must be obvious that it was easier to perceive its present inconvenience than to foresee the effects that may ensue from a change. The constitution contemplates the exercise by Congress of exclusive legislation over ten miles square. It must impress itself upon the mind of every gentleman that the wise men who framed the constitution deemed it proper. Congress also had thought it proper, as well as two of the most respectable States in the Union--the one by receiving and the other by granting the territory. All these considerations impressed his mind with a disinclination hastily to alter the course that had been pursued. Mr. DENNIS regretted that he had been called out of the House when this subject was taken up, as, in the remarks which he considered it his duty to make, he could not avail himself of the ideas suggested by other gentlemen, and as he might repeat what had been perhaps already said. He would undertake, however, to show that the proposed resolutions were objectionable in every point of view that could be taken of them. They presented two aspects. Admitting, in the first place, that they could be carried into effect, so far as to restore the people of the territory to the situation in which they were placed before the cession, yet it appeared to him a strong objection that all the advantages of exclusive jurisdiction would be thereby lost. He had always thought that part of the constitution which gave Congress exclusive jurisdiction over a district of ten miles square wise and proper, and that a government whose laws were to pervade the whole United States ought not to be subjected to the whim or caprice of any part of the United States. By exclusive legislation, he understood the exclusion to the States of all participation in legislation. He admitted that it was competent to Congress to sanction the acts of Maryland and Virginia; but he believed that no one would contend that Congress could divest themselves of an ultimate control. They might admit the Legislatures of Maryland and Virginia to legislate for the territory, but Congress possessed the power of controlling or modifying their acts. He would wish to know what advantage there could be in giving this legislative agency to those States? If given, no doubt could be entertained of many acts passed by them being disagreeable to the people of the territory, who would apply to Congress to repeal them. The next Congress, too, would have the power of resuming the jurisdiction, or, more properly speaking, the jurisdiction would still remain in Congress. Under such a qualified cession, he presumed the Legislatures of Virginia and Maryland would refuse to act; for, why should they legislate for people not within their limits? The power of legislation might as well be vested in the Legislature of Massachusetts. The truth is, that our jurisdiction would be paramount, and the acts of Maryland and Virginia would go into operation merely by our permission, and Congress might repeal and amend them whenever and howsoever they pleased. We should, therefore, be then relieved from no trouble that we now experience. There would then be as many applications to pass laws as there are now. In another point of view he was astonished at these propositions, and at the quarter from which they came. The gentleman from Massachusetts (Mr. BACON) has told us that his resolutions are bottomed on the broad basis of the rights of man; but he would ask how this could be, when the resolutions went to transfer twenty thousand men, without their consent, to a Government different from that under which they now live? Gentlemen are going to imitate some of the extraordinary scenes that have lately occurred in Europe, and propose to transfer this District with the same facility that in that quarter of the globe they have transferred an Italian dukedom or a German principality. Mr. DENNIS thought the situation of Congress in relation to the people of this Territory was not sufficiently understood. He knew that it was always troublesome to legislate for any people: he foresaw these inconveniences when they removed to this place. He had thought then, as he thought now, that some legislative government must be provided for the District. In this opinion he had never varied, but had, from successive events, become more confirmed in its accuracy. But, if gentlemen object to vesting the people with the power of government, he thought he could suggest a plan better than that of retrocession, to wit: to vest the President with the power to revise the laws of Maryland and Virginia, and make a report to the next session of Congress. The laws of Maryland and Virginia were generally agreeable to the people, but they experienced many inconveniences from local and peculiar circumstances. WEDNESDAY, February 9. _District of Columbia._ The House then resolved itself into a Committee of the Whole on the resolutions of Mr. BACON to recede to the States of Maryland and Virginia the District of Columbia. Mr. BAYARD hoped the committee would not agree to the resolutions. He did not believe that a constitutional power existed enabling the Government of the United States to recede the Territory. The Territory had been acquired by the direction and under the permission of the constitution. The constitution also allows the cession by particular States. When, therefore, gentlemen say Congress has the power to recede, he was at liberty to call upon them to exhibit that part of the constitution that conferred the power. He had looked over the constitution with a vigilant eye, and he could see nothing to this effect. Can it be done without power? Do gentlemen recollect that the Government of the United States is federative, and of course possessed of limited powers; and what is not delegated does not exist; and that there is an express provision that powers not expressly given shall not be assumed by implication? It was difficult to point out a non-entity. If gentlemen contend for an entity, they should distinguish it. If Congress have the power to recede this Territory, they have also the power to recede the others, the Indiana and Mississippi Territories. It is an extremely different thing to receive a cession and to recede it after it is received. Congress has the power to do the one, but not the other. How can the retrocession be made? Gentlemen say, by law. That law may be repealed. If receded, what would be the situation of the Territory? It could be no affair of contract. For a contract cannot exist without a consideration. Though, on the cession, there was a consideration, in receding there would be none. Would there be a power in Virginia and Maryland, if receded, to prevent a resumption? Such a measure showed but little respect for the people of the Territory. As far as he knew the sentiments of the people, it was not their wish to be receded. They were willing to live under the protection of Congress. The gentleman from Pennsylvania has called them slaves. They may not thank him for the appellation. If they were slaves, there must be some corollary; and if so, we must be their tyrants. But they are not slaves; they are children, over whom it is not our wish to tyrannize, but whom we would foster and nurture. Are we, in the character of Representatives of the United States, to be considered as their tyrants, because they are not immediately represented here? We ought not to decide this question until the people express their desire to return to the States. But there is a more serious consideration relative to the people of the Territory. It is proposed to recede the District to Maryland and Virginia. Once take that step, and what obligation was there in Congress to remain here? He felt there was none. The obligation to remain arises, in a great measure, from the cession, and by destroying that, you extinguish the sense of the obligation to stay. This may be the object of gentlemen. A number of the measures lately proposed appeared to have that tendency. One motion had been made to concentrate the public buildings. Violate one stipulation of the Government, or disappoint a reasonable expectation that had been excited by the measures of the Government, and the ruin of hundreds follows. Now, a motion is made to recede. Combine these two operations. Unfix the Capitol, and recede the District, and, believe me, Congress will soon take wings and fly to some other place. It had been truly remarked, on a similar occasion, by those interested, though these things may be sport to you, they are death to us. Not a motion of this kind had been made, or could be made, that did not depreciate the interests of the place, and frustrate the object professed. By such means, our accommodations will be impaired, all enterprise be subdued, and industry languish. He hoped, therefore, that the House, by a decided vote, would reject these resolutions, and put all similar ones to sleep. Mr. GREGG said he had expected that this question would have been decided by a silent vote. He, for his part, had no intention of having troubled the committee with any observations of his on the subject, but as other gentlemen had seen proper to enter into a discussion of it, he would beg the indulgence of the committee while he assigned, as concisely as possible, the reasons that would influence his vote. Having been a member of the Legislature at the time the act was passed for assuming the jurisdiction of the Territory, he foresaw pretty clearly most of the difficulties in which we are now involved by that act, and therefore had given it his opposition in every stage of its passage. A majority of the Legislature, however, at that time, entertained a different opinion, and made the assumption. From that moment he had considered a contract to be fully complete and ratified between the States of Maryland, Virginia, the people of the Territory of Columbia, and the Government of the United States. That contract he considered as of permanent obligation, not to be done away, but by the unanimous consent of all the parties. Mr. SMILIE could not agree either with the gentleman from Delaware or with his colleague (Mr. GREGG) on the constitutional question. We had a power to accept the cession, or not to accept it; from which necessarily resulted the power of recession. Instead of arguing as the gentleman from Delaware, he would call on him to point out in the constitution the prohibition. His colleague talked of a moral obligation to keep the Territory. This might exist, if it were proposed to force this Territory on the States without their consent. The gentleman seems to have taken offence at the expression which had fallen from him of slaves. For his part, he had never been accustomed to courtly language, but to the expression of his ideas plainly and openly as he conceived them. He certainly had not used the expression with any intention to treat the people of this Territory with disrespect; but to express his regret at the degraded situation of those who were formerly in possession of the full rights of citizenship. The gentleman seems also offended at the epithet of tyrants applied to us. Mr. S. would ask the gentleman from Delaware, if ever he knew a government possessed of unlimited power, who had not abused it. This was the condition of this Government, which he hoped, however, if continued, would be moderate. He had expected that gentlemen opposed to the retrocession would have shown the benefit to be derived to the United States from retaining the jurisdiction. If there were none, it was useless and dangerous, inasmuch as it could only be done at the expense of the rights of the people. He was surprised yesterday at the remarks of the gentleman from Maryland, (Mr. DENNIS,) that this measure would deprive twenty thousand people of their rights. How could this be, when they had no right to be deprived of? You may give them a charter. But of what avail will this be, when Congress may take it away at any moment? They would continue for ever to be ultimately governed by a body over whom they had no control. Mr. S. concluded by again observing that he had always thought the assumption wrong; but that he had no idea of connecting that consideration with the removal of the Government. It could have no influence on his mind. He would go farther, and say that he had no idea of removing; nor did he believe they could remove. Mr. RANDOLPH said that, whatever reasons might be advanced on the ground of expediency against the adoption of the resolution, he wished to say a few words on the constitutional objections which had been offered to them. The gentleman from Delaware (Mr. BAYARD) told us, on a very late occasion, that the power to create involved the power to destroy; and although I may not be willing to adopt this maxim in all the latitude in which it was urged by that gentleman, I have no hesitation in averring my belief that Congress possess the right, with the assent of these States, respectively, to cede the several portions of this territory to Maryland and Virginia. Nor, in my opinion, does this doctrine militate against that construction of the constitution, which regards that instrument in the light of a limited grant of power. In this construction I heartily concur with the gentleman from Delaware, or rather, if he will permit me to say so, I am glad to find he agrees with me, as I have retained my opinion, whilst he seems to have changed his. I readily admit that Congress possesses no power but that which is devolved on them by the constitution, explicitly, or which is evidently included in, or deducible from its plain provisions. The constitution nowhere gives Congress the express power of repealing laws; but the repeal of laws is essentially connected with the power of passing them, as, in this case, the right to recede is involved in the right to accept the cession. The parties to this compact are the United States, of the one part, and the States of Maryland and Virginia, of the other. We speak the voice of the United States, and, among others, of Maryland and Virginia, in their confederate capacity. The Legislatures of those States answer for them in their individual capacity. If all these parties are agreed to revoke their act, I wish to know who is to dissent to it, or what obstacle can prevent its being rescinded? Mr. R. said, that he was of the number of those who voted against assuming the jurisdiction of this territory. He did it from a predilection for those principles in which the American Revolution originated; from the firm belief that men ought not to be bound by laws in whose formation they had no influence. It was the violation of that principle, and not the extent to which it was carried, which laid the foundation of our independence. For, let it be remembered that the demand of Great Britain went only to a peppercorn; but that we disdained the admission of so odious a doctrine, and commenced a determined and successful resistance. But it is denied that this territory is in a state of slavery, because, says the gentleman, it implies that we are tyrants. The term slavery, sir, excites in the mind of man an odious idea. There are, however, various species of this wretched condition. Domestic slavery, of all others the most oppressive; and political slavery, which has been well defined to be that state in which any community is divested of the power of self-government, and regulated by laws to which its assent is not required, and may not be given. Nor have I ever before understood that slavery, particularly of the last description, necessarily implied tyranny, although it too frequently is productive of it. But, so far from being slaves, the people within this territory are, it seems, our children, who are to experience every indulgence at our hands. Sir, the form of government, such as has been described, however mild and beneficent it may be in its administration, places those subjected to it in a state of political slavery, and they are as completely divested of self-control as the infant who is dandled on the knee of its parent. As to the existence, then, of this species of slavery, it mattered not whether the people within the limits of this District were regarded as the favorite son, and feasted on the fatted calf, or were exposed to the cruel rigor of a step-mother. An idea had been held out from a very respectable quarter that this District might, in time, become a State. As to Congress, what difference will they find between being under the jurisdiction of the State of Columbia, or the State of Maryland. But, if this objection were removed, it is impossible that this territory can become a State. The other States can never be brought to consent that two Senators and, at least, three electors of President, shall be chosen out of this small spot, and by a handful of men. The constitution seems to have intended, by its provision on this subject, to guard the General Government against the undue influence of any particular States wherein it might sit. An insurrection in Philadelphia is mentioned by some gentleman as having given rise to this clause in the constitution. The constitution, no doubt, had a wise end in view, but it has failed in the means of attaining it. No man has a higher respect than myself for the talents of the framers of that instrument. But let it be remembered, that they were making a great experiment, and to have failed in but a single object, is the highest proof of their wisdom. The physical force of this small District would prove but a poor defence against the aggression of large and powerful States. Happily, our security is more amply provided for; it results from the command which has been given us over the sword and the purse of the Union. Our protection is not in a mathematical line--which would oppose but a feeble resistance to an invading foe. But let gentlemen ask themselves, why the inhabitants of this District should be less formidable if disposed to insurrection because under our own jurisdiction? Look at Paris! was the insurrection of the fourteenth of July, which humbled into the dust the ancient monarchy of France, the effect of a want of jurisdiction; of a want of power in the Government over the lives and fortunes of the people? Did the city afford the Government a defence? No, it was in insurrection. Did the military send its aid? On the contrary, it joined the insurgents. What was the fact at Philadelphia? That Congress was insulted by its own troops. Would the civil jurisdiction of the town have repelled the bayonet? No, it was not in parchment to afford this defence. It has left us an awful lesson against standing armies; and if we shall ever be so infatuated as to multiply armies about us, we may rely in vain on the lines of circumvallation which the limits of our exclusive jurisdiction form. The constitution, therefore, has failed in its endeavor to give to Congress any other security than that which public opinion and the command of the national resources afford. But, whilst I have no doubt on the subject of our constitutional right, I am opposed to the resolution on the ground of expediency. It appears to have disseminated a great alarm among the people of our immediate neighborhood. At a proper time, when great unanimity can be obtained, it may be carried into effect. If now passed, it is irrevocable; and I have no indisposition to give the question the most mature deliberation, and to give it a fair operation on the public mind. I could wish, indeed, to see the people within this District restored to their rights. Men in such a situation are, as it had been wisely and eloquently said, fit instruments to enslave their fellow-men. This species of Government is an experiment how far freemen can be reconciled to live without rights; an experiment dangerous to the liberties of these States. But, inasmuch as it has been already made, inasmuch as I was not accessory to it, and as, at some future time, its deleterious effects may be arrested, I am disposed to vote against the resolutions. I view them as a fatal present to this House, although I respect the motives in which I believe them to have originated; as tending to disunite those who ought ever to act in concert; and I have no hesitation on a question of expediency to declare my disposition to concede something to the wishes and fears of those around me. In their present shape, at least, I shall therefore vote against the resolutions. Mr. EUSTIS was opposed to the resolutions, for the reasons which had been stated, and for other reasons not mentioned, though they might have occurred to the minds of gentlemen. He thought it right to express a difference of opinion with the gentleman from Virginia, (Mr. RANDOLPH,) on an important question, the exclusive jurisdiction of Congress to the ten miles square. He was not prepared to pronounce the provision of the constitution on this subject deficient or unwise. It rather appeared to him to be founded in the nature of the Government. A Government on parchment, and without force, was no Government at all. It had been stated this provision grew out of a transaction at Philadelphia, and asked what dependence was to be placed on a military force when that force was itself the aggressor? But that transaction suggested a different result. Had the militia been well equipped and ready for service, and under the immediate control of Congress, would the military force have been suffered to overawe them? This very case furnished an argument for investing Congress with the complete command of the militia force of the territory, to screen them from insult, and to protect them from the application of force that might destroy deliberation. They had already taken a course calculated to prove the soundness of this mode of protection. Their laws had recognized the militia of the territory; and some measures had been taken to organize them. The militia was the physical force Congress must rely on. Suppose that militia were under the command of Maryland, and Congress was about to pass a law obnoxious to that State. Suppose the militia of Maryland to be mutinous, and to surround these walls. Must you resort to Maryland for protection, and wait on her measures? No; the situation of the territory and your immediate power over the militia must furnish you with the means of protection. He therefore thought it one of the best provisions of the constitution, to submit the physical force near the Government to its direction. Mr. SOUTHARD rose only to make one observation, which had been touched on but lightly in the course of the debate. It appeared to him that when Congress assumed the exclusive jurisdiction of the ten miles square, they had, in the first instance, entered into a contract with the Legislatures of Virginia and Maryland. He had no doubt that, if the contract had ended here, they might, with their consent, make a retrocession. The second step, however, taken, was a contract between the agents of Government and the proprietors, in order to obtain the soil. This contract appeared to him to be solemn and binding. In entering into the contract, the proprietors gave the General Government sites for the public buildings, and half the residue of the land within the city plot. He conceived that this was a contract founded on express stipulations that Congress should exercise exclusive jurisdiction. The proprietors had no idea, at the time they made the contract, that their property would be retroceded and the Government had since received more than one million's worth of real property which they now enjoyed. He would ask, whether a retrocession, under such circumstances, would not have a retrospective effect, and impair those obligations which the United States were bound to observe? For this reason, he thought a retrocession improper, as it would be a violation of contract with the people of the territory. It appeared to him that, while they were satisfied, the General Government ought to be satisfied. Mr. VARNUM doubted the reality of the observation of the gentleman from New Jersey. He suspected there was no such contract in existence. It was not the interest of the Government of the United States to do any thing that would injure this District. He therefore supposed that every gentleman who voted on this occasion, would act for the interest of his country. If he thought it possible for Congress to legislate for the territory, he should have no objection to retaining the jurisdiction. But, when he considered that Congress were appointed to legislate on great objects, and not on minute local concerns, he did not think them competent to legislate for the persons situated in the Territory of Columbia. He did not know whether, if the jurisdiction was retained, it would not be proper to indulge the citizens with a territorial legislature. But to this the people themselves object. Virginia objects to a union with Maryland. There were, manifestly, hostile interests which could not easily be united. And if there shall be a territorial legislature, still Congress has a right over their acts. Whether this was the fit time to retrocede the territory he did not know; but he believed the time would come when the citizens of the territory will be in favor of it. Mr. SMILIE stated the circumstances of the case at Philadelphia, which had been so often alluded to by gentlemen. At the close of the late war there had been a mutiny among the troops, who had surrounded Congress. Not a drop of blood had, however, been spilt. This was the mighty incident of which so liberal a use had been made. He would ask whether, in countries over which the Government had complete jurisdiction, worse things had not happened? He would ask, whether this menace of Congress were to be compared with the mob of Lord George Gordon in a country over which the Government had an entire jurisdiction. The question was then taken on the first resolution, for receding to Virginia the territory originally attached to that State, and lost--ayes 22. When the question was taken on the second resolution, and lost, without a division. The committee rose, and reported their disagreement to the resolutions. The House immediately took up their report. Mr. NICHOLSON called for the yeas and nays. Mr. RANDOLPH said, as he believed the House incompetent to legislate for the people of Columbia; as he believed the interests of the several parts of the territory were as hostile as any in the Union, as it was manifest there was an Alexandria, a Georgetown, and a city interest; and even, within the city, a Capitol-hill interest, and a President's-house interest--which were irreconcilable; he should vote for the amendment of his colleague, (Mr. DAWSON.) To attempt to legislate for the District was, in effect, to constitute the chairman of the committee, or, at any rate, the committee itself on the affairs of the territory, the Solon or Lycurgus of the place. It was well known that the indolence of the other members, or their indifference, inseparable from the situation in which they were placed, would prevent Congress from legislating with a full understanding of the objects before them. He, therefore, thought it expedient to retrocede all the territory, excepting the City of Washington. This disposition of the territory would leave entirely untouched the question which arose from the interest of individuals who had made purchases of property under the faith of Congress retaining the jurisdiction. It was probable that, in such event, a corporation might be established in the city that would answer the ends of Government, without two-thirds of the time of the National Legislature being consumed. The question was then taken by yeas and nays, on concurring with the Committee of the Whole, in their disagreement to the first resolution, and carried--yeas 66, nays 26, as follows: YEAS.--Theodorus Bailey, James A. Bayard, Thomas Boude, Richard Brent, Robert Brown, John Campbell, John Clopton, John Condit, Manasseh Cutler, Samuel W. Dana, John Davenport, Thomas T. Davis, William Dickson, Peter Early, William Eustis, Abiel Foster, Calvin Goddard, Edwin Gray, Andrew Gregg, Roger Griswold, William Barry Grove, John A. Hanna, Daniel Heister, William Helms, Joseph Hemphill, Archibald Henderson, William H. Hill, David Holmes, Benjamin Huger, Samuel Hunt, George Jackson, William Jones, Ebenezer Mattoon, David Meriwether, Samuel L. Mitchill, Thomas Moore, Lewis R. Morris, Thomas Morris, Anthony New, Thomas Newton, jun., Joseph H. Nicholson, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, William Shepard, Israel Smith, John Cotton Smith, John Smith, (of Virginia,) Samuel Smith, Henry Southard, John Stanley, John Stewart, John Taliaferro, jr., Samuel Tenney, Samuel Thatcher, Thomas Tillinghast, Philip R. Thompson, Abram Trigg, John Trigg, George B. Upham, Killian K. Van Rensselaer, Peleg Wadsworth, Lemuel Williams, Richard Winn, and Thomas Wynns. NAYS.--Willis Alston, John Archer, John Bacon, Phanuel Bishop, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, Richard Cutts, John Dawson, Lucas Elmendorph, Ebenezer Elmer, John Fowler, William Hoge, James Holland, Michael Leib, James Mott, John Randolph, jr., John Smilie, John Smith, (of New York,) Josiah Smith, Richard Stanford, David Thomas, Joseph B. Varnum, Isaac Van Horne, and Robert Williams. The second and last resolution to which the Committee of the Whole reported their disagreement, being twice read, in the words following, to wit: _Resolved_, That it is expedient for Congress to recede to the State of Maryland the jurisdiction of that part of the Territory of Columbia, which was ceded to the United States by the said State of Maryland, by an act passed the nineteenth day of December, in the year one thousand seven hundred and ninety-one, entitled "An act concerning the Territory of Columbia and the City of Washington;" provided the said State of Maryland shall consent and agree thereto: The question was taken that the House do concur with the Committee of the Whole in their disagreement to the same, and resolved in the affirmative.[77] THURSDAY, February 10. _Ohio School Fund._ The House resolved itself into a Committee of the Whole on the report of the committee of the second instant, to whom were referred, on the twenty-third of December last, a letter from Edward Tiffin, President of the Convention of Ohio, and a letter from Thomas Worthington, special agent of the said State, enclosing a copy of the constitution thereof, together with sundry propositions in addition to, and in modification of, those contained in an act passed at the last session of Congress; and after some time spent therein, the committee rose and reported to the House their agreement to the resolutions contained therein, with two amendments, which being severally read, the first amendment was, on the question put thereupon, agreed to, and the other disagreed to by the House. The said resolutions, as amended, were again severally read at the Clerk's table, and agreed to by the House, as follows: 1. _Resolved_, That a donation, equal to one thirty-sixth part of the amount of the lands in the United States' Military Tract, within the State of Ohio, be made for the support of schools within that tract. 2. _Resolved_, That a donation equal to one thirty-sixth part of the county of Trumbull, be made, out of the lands within the United States' Military Tract, for the support of schools within the said county of Trumbull. 3. _Resolved_, That a donation equal to one thirty-sixth part of the Virginia reservation, so far as the unlocated lands, within that reservation, (after the warrants issued by that State shall have been first satisfied,) will supply the same, be made for the support of schools in the district contained between the Scioto and Little Miami Rivers. 4. _Resolved_, That a like provision, for the use of schools, be made, out of any lands which may hereafter be acquired from the Indian tribes. 5. _Resolved_, That the lands which now are, or hereafter may be, appropriated to the use of schools within the State of Ohio, be vested in the Legislature thereof, in trust for that object. 6. _Resolved_, That not less than three-fifths of the sum offered to be appropriated by Congress for the opening of roads, from the Western to the Atlantic waters, shall be appropriated under the direction of the State of Ohio, for the laying out of roads within that State. 7. _Resolved_, That, in lieu of the township proposed to be granted for the use of an academy, by the act passed the fifth day of May one thousand seven hundred and ninety-two, there be granted to the State of Ohio, for the purposes described in that act, one other entire township, within the district of Cincinnati; provided that the State of Ohio shall relinquish to the United States, all their claims, under the act aforesaid, against the said John C. Symmes. 8. _Resolved_, That these propositions shall depend on the compliance, by the State of Ohio, with the provisions of the third proposition, and second section of the aforesaid act, entitled "An act to enable the people of the eastern division of the territory north-west of the river Ohio to form a constitution and State government, and for the admission of such State into the Union, on an equal footing with the original States, and for other purposes," passed the thirtieth day of April, one thousand eight hundred and two. _Ordered_, That a bill or bills be brought in, pursuant to the said resolutions; and that Mr. RANDOLPH, Mr. ELMENDORPH, Mr. GODDARD, Mr. HENDERSON, and Mr. ARCHER, do prepare and bring in the same. THURSDAY, February 17. _Emancipated Slaves from French West Indies._ An engrossed bill to prevent the importation of certain persons into certain States, where, by the laws thereof, their admission is prohibited, was read the third time. And, on the question that the same do pass, it was resolved in the affirmative--yeas 48, nays 15, as follows: YEAS.--Willis Alston, John Bacon, Theodorus Bailey, James A. Bayard, Phanuel Bishop, Thomas Boude, William Butler, Samuel J. Cabell, John Campbell, Matthew Clay, John Clopton, John Dawson, Peter Early, Lucas Elmendorph, Ebenezer Elmer, Calvin Goddard, Edwin Gray, Daniel Heister, Joseph Heister, William Helms, Archibald Henderson, William H. Hill, William Hoge, James Holland, George Jackson, Michael Leib, David Meriwether, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, Thomas Plater, John Rutledge, William Shepard, John Smilie, Samuel Smith, Richard Stanford, John Stewart, John Taliaferro, jr., Samuel Tenney, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Isaac Van Horne, Robert Williams, Henry Woods, and Thomas Wynns. NAYS.--Robert Brown, John Condit, Richard Cutts, John Davenport, Abiel Foster, John A. Hanna, Seth Hastings, Samuel L. Mitchill, James Mott, Israel Smith, Josiah Smith, Henry Southard, Joseph Stanton, David Thomas, and Peleg Wadsworth. _Resolved_, That the title be, "An act to prevent the importation of certain persons into certain States, where, by the laws thereof, their admission is prohibited;" and that the Clerk of this House do carry the said bill to the Senate, and desire their concurrence. TUESDAY, February 22. _Military Land Warrants._ GENERAL LAFAYETTE. The House took up the bill respecting military land warrants. Mr. DAVIS hoped it would not be adopted without inquiring whether the land proposed to be given to General Lafayette was the same as was given to other Major Generals. It was true he had rendered services to the United States, for which they had made him an allowance. There were other claims, in his opinion of greater force, made day after day, without being attended to. If this provision were annexed to the bill he should vote against its passage; though, otherwise, he would be glad to vote for it. If General Lafayette was entitled to this land, he wished to see the business regularly conducted. We are now making provision for persons who have legal claims. It is right, therefore, to separate these subjects. Let us attend to one first, and afterwards consider the other. Mr. DAWSON.--When, on yesterday, I had the honor to submit this amendment, I indulged the pleasing hope that it would have received not only the vote of this House, but would have met with the patronage of all--of all the friends of justice, and of those who remember past services; and that it would have been adopted without delay and without debate. In this I have been wofully disappointed. My fond anticipation was immediately damped by a gentleman from New York, on whose friendship I did count, and do now expect; and the amendment, instead of finding sympathizing advocates, has met with an unexpected opposition; instead of finding friends proud to reward past services, it has met with enemies, seeking for reasons to withhold justice. Mr. Chairman, the search has been in vain; the grateful, the patriot mind will remember those services, while the reflection on a wish to withhold justice will be left as consolation to those who have made the search. Sir, it was my wish, and it is my determination to support this amendment solely on the grounds of services rendered to us. Whatever may have been the conduct and the situation of General Lafayette since our Revolution, humanity may lament; but, sir, it belongs to us to pay this tribute to justice, if not to gratitude. Sir, on yesterday, I stated what was known to every gentleman of this House, that this gentleman at an early period of life, animated by the love of liberty, left the pleasures of an enticing Court, encountered the danger of winds and waves, and entered into the service of a country known to him only by name, and endeared to him only by its devotion to that flame which he felt himself. In this service he continued until the end of our war, submitting to all the hardships and fatigues of the field; leading our armies to victory, and exposing himself to every danger; and this without any compensation, and at the sacrifice of the greater part of his private fortune. I stated more--that that fortune is now much reduced; and this is what I do know. Yes, sir, I have spent two days with this adopted child of America on his little farm. I saw him surrounded by an amiable family, but not with wealth. I heard him pouring forth his best wishes for the prosperity and happiness of this country; and I witnessed his constant exertions to promote its interests. It may not be improper here to remember what I do know. Some short time before I went to France, the First Consul applied to Mr. Lafayette to come to this country as Minister. He replied, "I am by birth a French citizen, by adoption a citizen of the United States. I have served in that country, and am so attached to its interest that I doubt, if a case of difficulty should arise, whether I should do justice to my own; if I did, I am sure I should be suspected, and therefore I will not place myself in that delicate situation." And now, sir, what is it that it is proposed to do for this gentleman; for him who rendered you services without emolument, and risked his life without hesitation; to this citizen of the United States; and not a foreigner, as the gentleman from Kentucky has been pleased to call him? It is to give to him what we give to others; and what he never would have received had it not been for the reverse of his fortunes. And shall we hesitate? I trust not. Sir, this is not only a question of justice, but it is of feeling; every soldier, every officer must feel for a fellow-soldier and a fellow-officer, and every citizen for a fellow-citizen; and such is Mr. Lafayette. Whatever may be the fate of that amendment, if it shall be adopted I shall feel proud for my country. If it shall be negatived, I shall have the pleasing reflection of having discharged a duty to my country and to my own feelings. Mr. T. MORRIS said that the opposition he had made was more to the manner than to the matter of the motion. He thought it improper to decide upon it at so late an hour, and when there was scarcely a quorum of members within the walls. I have, said Mr. M., no objection to the grant. On the contrary I think it ought to be made in consideration of the circumstances of General Lafayette. I should indeed have wished that it had been the subject of a distinct bill. The value of gifts of this nature depends as much on the manner in which they are made, as on the gifts themselves; and I think the donation would, in this case, have been deemed more honorable, if a special bill had been passed, instead of inserting a clause in another bill. If there were time to bring in a distinct bill I should now vote against the amendment; but as I am unwilling to hazard the object altogether, I shall vote for it: expressing my regret, at the same time, that the gentleman who has viewed the distressed situation of General Lafayette had not sooner brought the business forward. A debate of short duration ensued, between Messrs. S. SMITH, SHEPARD, DAWSON, and BACON, in favor of the amendment, and Mr. DAVIS against it, when it was carried without a division. On engrossing the bill for a third reading, Messrs. SOUTHARD, and SHEPARD spoke in favor of, and Mr. VARNUM against it--carried, and ordered to a third reading to-morrow. SATURDAY, February 26. _French Spoliations._ Mr. BAYARD moved that the House do now resolve itself into a Committee of the whole House on a motion of the thirty-first ultimo, "for indemnifying the citizens of the United States, who, in carrying on a lawful trade to foreign parts, have suffered losses by the seizure of their property, made by unauthorized French cruisers, or by any French cruiser, without sufficient cause," to which Committee of the whole House was also referred, on the second instant, the report of a select committee, made the twenty-second of April last, on "the memorials and petitions of sundry citizens of the United States, and resident merchants therein, praying relief, in the case of depredations committed on their vessels and cargoes, while in pursuit of lawful commerce, by the cruisers of the French Republic, during the late European war:" It passed in the negative--yeas 21, nays 48, as follows: YEAS.--John Bacon, James A. Bayard, John Campbell, Samuel W. Dana, William Eustis, Calvin Goddard, Roger Griswold, Seth Hastings, William H. Hill, Benjamin Huger, Samuel Hunt, Samuel L. Mitchill, Thomas Morris, Thomas Plater, Nathan Read, John Cotton Smith, Samuel Tenney, Samuel Thatcher, George B. Upham, Peleg Wadsworth, and Lemuel Williams. NAYS.--Willis Alston, John Archer, Theodorus Bailey, Phanuel Bishop, Richard Brent, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, John Clopton, John Condit, William Dickson, Peter Early, Lucas Elmendorph, Ebenezer Elmer, Andrew Gregg, Daniel Heister, Joseph Heister, William Helms, William Hoge, James Holland, George Jackson, Michael Leib, David Meriwether, Thomas Moore, James Mott, Anthony New, Thomas Newton, jr., John Randolph, jr., John Smilie, Israel Smith, John Smith, (of New York,) John Smith, (of Virginia,) Henry Southard, Richard Stanford, Joseph Stanton, John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Isaac Van Horne, Robert Williams, Robert Williams, Richard Winn, and Thomas Wynns. THURSDAY, March 3. _Thanks to the Speaker._ On a motion made and seconded, "That the thanks of this House be presented to NATHANIEL MACON, the Speaker, in testimony of their approbation for his conduct in discharging the arduous and important duties assigned him, while in the chair:" It was unanimously resolved in the affirmative, by yeas and nays, every member present voting in the affirmative. Whereupon, Mr. SPEAKER made his acknowledgments to the House, in manner following: "GENTLEMEN: Accept my sincere thanks for the vote which you have been pleased to pass, expressive of your approbation of my conduct in the chair; they are also due to each of you, for the liberal support which I have uniformly received. "Permit me to wish you a safe return home and happy meeting with your friends." A message from the Senate informed the House that the Senate having completed the Legislative business before them, are now ready to adjourn. Whereupon, Mr. SPEAKER adjourned the House, _sine die_. INDEX TO VOL. II. A _Accommodation_ of the President, _see Appropriations_. ADAMS, JOHN, Vice President, attends Senate, 3; declares result of election of President to Senate, 6; gives notice to the Senate of time he will take the oath, 6; valedictory to the Senate, 8; reply to answer of the Senate to his valedictory address as Vice President, 9; his inaugural address, 11; presides in joint meeting of Senate and House, to count the votes for President, 62; remarks on mode of proceeding, 62; his method of counting the votes, 62; votes given to, for President in 1796, 62; declaration to the two Houses of the votes for President in 1796, 63; notifies Congress of the time he will take the oath as President, 66; President of United States, 113; reply to answer of Senate to President's message, 119; his proclamation calling extra session of Congress, 120; reply to answer of House to President's message, 143; reply to answer of Senate to message, 170; reply to answer of House to President's message, 182; reply to answer of House to President's message, 330; message to House announcing death of Washington, 434; vote for, as President, 487; reply to address of Senate, 484; reply to answer of Senate to President's message, 323; reply to answer of Senate to message, 402; reply to address of Senate on death of Washington, 403; answer to address of House, 432; letter to Senate on public property in his hands, 487; reply to answer of House to message, 500; his administration, _note_, 539. _See Message._ _See Index_, vol. 1. ADAMS, SAMUEL, vote for, as President in 1796, 63. _Address in Senate_, in answer to message at 2d session, 4th Congress, 4; in answer to message 1st session, fifth Congress, 117; 2d session, 5th Congress, 169; 3d session, 5th Congress, 322; 1st session, 6th Congress, 402; 2d session, 6th Congress, 483; of Senate to President on death of Washington, 403. _Answer of House to Message_, 2d session, 4th Congress, considered, 17; motion to lay over, 17; unusual if not unprecedented motion, 17; improper to go into the subject before members had time to reflect on it, 17; the more expeditious, the greater will the effect be, 17; a subject of extensive consequence, 18; too important to be hastened, 18; no precedent for delay, 18; only two subjects on which there can be a difference of opinion, 18; a delay would have a very unpleasant appearance, 18; many bad consequences may attend hastening the subject, 18; are we always to act by precedent?, 18; motion to postpone lost, 19; verbal amendments proposed, 22; debate on, 22; parts expressive of wisdom and firmness in the Administration objected to, 23; has been a want of firmness for the last six years, 23; this want has brought the country to its present alarming condition, 23; no reason to exult in the view of our foreign relations, 23; our internal situation no ground for admiration, 23; the government can go on very well after the President retires, 23; no uncomfortable sensations felt at his retirement, 23; wisdom and firmness not doubted, 24; further debate, 24, 25, 26, 27; no inconvenience from voting the address, 28; shall one slip, one criminal slip rob the President of his good name?, 28; duty of the House to do that patriot all the honor they could, 28; United States do not enjoy "tranquil prosperity," 29; we are not the proper organs to declare the people free and enlightened, 29; condition of Europe, 30; further debate, 31, 32; address adopted, 33. _Answer of House to President's Message_, 1st session, 5th Congress, debate on, 124; sections proposed to be inserted, 124; the answer is predicated upon the principle of approving all the measures of the Executive with respect to France, whilst the amendment avoids giving that approbation, 124; which of the two grounds would the House take, was the question, 124; the present a most important crisis, 125; statement of the case, 125; the rights of France relative to the three principal subjects which are causes of complaint between the two countries, 126; arguments of our ministers recapitulated, 126; free ships make free goods, 126; contraband articles, 126; carrying provision, 126; if these amendments are agreed to, fresh insults and aggressions must be expected, 127; was the conduct of France justifiable in rejecting our minister?, 127; complaints of France, 127; examined, 127, 128; France considers our government and people divided, 129; address objectionable in approving the course pursued in conducting our foreign relations and in expressions of resentment and indignation towards France, 130; conduct of France considered, 130; federalism and anti-federalism, 130; amendment scrutinized, 131; all the steps taken by the Executive had a view to an eventual appeal to arms, 131; shall the Executive be approved, or France put on the same ground as other belligerents, 131; any answer to message objectionable, 132; further debate, 133; facts disclosed by the message, 134; the answer of the committee seems to express indignity on account of injuries received from France, and a determination to repel them--the amendment is in a conciliatory tone and recommends that negotiations be begun as with other belligerents, 135; arguments in favor of each considered, 135, 136; course of the debate, 136; view of the question, 137; from what line of conduct are we to expect the most beneficent issue, 137; the amount of the question is whether we shall place all nations on a level as to commerce, and remove inequalities existing between them, 138; a view of facts, 138, 139; other amendments proposed, 139; shall any notice be taken of the speech of Barras?, 140; it is an indignity, 140, 141; amendments carried, 142; moved that such members as do not choose need not attend at the presentation of the answer, 142; all now obliged to attend unless sick or leave of absence obtained, 142; the mover excused unanimously, if it would not comport with his, dignity to attend 142. _Answer to President's Message_, 2d session, 5th Congress; verbal amendments proposed and adopted, 181; an excuse from attending the ceremony asked, 182; the House will not compel the members to go about parading the streets of Philadelphia, 182; none of the members particularly anxious for the society of the member who asks to be excused, 182; no power in the House to compel any member to attend, 182; further discussion, 182; motion withdrawn, 182. _Answer in House_, 3d session, 5th Congress, 329; 1st session, 6th Congress, 431; 2d session, 6th Congress, 499. _Address_ of House to President, _see Index_, vol. 1. _Admirals in the Navy_, bill for their appointment reported, 473; motion to postpone, 473; no necessity for the bill, 473; reasons for the appointment, 473; postponement lost, 474. _African Slaves_, memorial of Quakers on, presented in Senate, 170; ordered to be withdrawn, 171. _See Index_, vol. 1, African Slaves and Slavery and Slave trade. ALBERTSON, JOB, a manumitted slave, petition of, 57. ALEXANDER, WILLIAM, petition of, 198. _Algerine captives_, ransom of, 95. _See Algerine War_, Index, vol. 1. _Alien Enemies_, bill relative to, 280; amended bill reported, 301; bill from House committee taken up, 305; motion to rise for purpose of postponement, 305; debate, 305; motion withdrawn, 305. _Alien and Sedition_ laws, petitions for repeal of, 358, 364. _Aliens_.--_See Naturalization Laws._ ALLEN, JOHN, Representative from Connecticut, 135, 179, 331; on a naval armament, 154; offers resolution for additional duty on salt, 163; on relations with France, 240, 241; on the naturalization laws, 258, 259; on the sedition bill, 305; on the expulsion of Matthew Lyon, 369. ALSTON, WILLIS, Representative from North Carolina, 429, 497, 569, 693; against a mausoleum to Washington, 511; on the reading of the letter of James McHenry, 696. _Amendment to Constitution_, resolution relative to, 446. _See Index_, vol. 1. AMES, FISHER, Representative from Massachusetts, 14; on the address to the President, 17, 21, 25, 26, 29, 30; on bill to increase compensation of President and other officers, 61; on the accommodation of the President, 92; on naval appropriations, 101, 103. AMY DARDIN'S _claim_, on a report to refuse the prayer of the petitioner the House voted in the negative, 85; the vote a precedent against the act of limitation, 85; an act of limitation should be considered only as a guard against fraud, 86; cause of the act of limitation, 86; any exception from the operation of the act should be in a general way, 86; statement of the case, 188; motion to report bill, 188; claim just but opposed to limitation act, 189; motion withdrawn, 189; motion to refer report on petition to Committee on Claims, 191; also moved to appoint a committee to report a bill, 191; also moved to refer to Committee on Claims, 191; referred to Committee of the Whole on excepting certain claims from operation of limitation act, 191; resolution to appoint a committee to bring in a bill for relief, 218; facts of the case, 213; it will throw open a door to every claim heretofore determined as barred, 213; setting aside limitation acts in most objectionable way, 213; a hard case, 213; it will not authorize the treasury to settle any claim, 213; acts of limitation liable to strong objections, 213; resolution lost, 213; Committee on Claims report against prayer of petitioner, 470; report adopted, 470; referred, 735. _See Index_, vol. 1. ANDERSON, JOSEPH, Senator from Tennessee, 165, 321, 399, 481, 540, 664; on the resolutions relative to the right of the United States to the free navigation of the Mississippi, 685. _Appropriation bill_ for 1797, amendments of Senate, 95; for 1798, 198. _Appropriations to purchase furniture_ for President's house; appropriation considered, 88; indirect way of raising President's salary, 88; what has been done in former years, 88; if it was an increase of salary the President could dispose of the money as he pleased, but the furniture proposed for purchase remains the property of the United States, 89; motion to strike out $14,000 and insert $8,000--no reason for furnishing of the President more than that of any other officer, 89; the thing wrong, a larger salary should be given, 89; the situation of the President should be comfortable and respectable, 90; further debate on the amount of the appropriation, 90, 91, 92. _Military._--The hospital department considered, 93; $30,000 moved, 93; unnecessary to appropriate so much, 93; $10,000 enough, 93; $10,000 adopted, 93; Quartermaster's Department, &c., considered, 93; necessary to allow a certain discretion to the Secretary with regard to specific sums, 93; appropriations of previous years, 93; appropriations for repairing certain posts on lakes should be rejected, as it will become a yearly expense, 94; state of those works not known, 94; appropriation for West Point, debated, 94, 95; items agreed to, 97; motion to insert an item for the purchase of horses and equipment of cavalry, 97; debate, 98, 99. _See Defensive Measures_. Question of filling blanks, considered, 252; accounts of War Department obscure, 252; various items examined, 252; $150,000 adopted for Quartermaster's Department, 253. _Naval._--_Appropriation for finishing three frigates_, considered, 76; so far as they go, three frigates give stability and protection to commerce, 76; will save more than five times their cost, 76; treaty or ships are the two things before us, 76; motion to connect a bill for manning and equipping, 77; this form of _tacking_ very improper, 77; constitutionality of the appropriation, 78; question on the connection of the two bills, 78; question of tacking the two bills carried, 78; appropriation resolved, 79. _Pay and subsistence_ of three naval captains, considered, 95; $4,200 the estimate--$5,000 appropriated, 95. _Moved to appropriate_ $175,000 for finishing three frigates, 99; smaller sum sufficient to secure them from injury, as it was the intention not to fit them for sea and save expense of manning them, 99; no prospect of manning them at present high rate of wages, 99; all appropriations are now specific and particular, 100; this sum is for finishing only, 100; if the frigates are not to be used, they should be sold at once, 100; many members intend to keep the frigates in such a state as to prevent their being manned, 100; a question whether we shall have a navy or not involved in this discussion, 100; Presidential discretion as proved by the past, 100; if this money is voted the frigates will get to sea under some pretext, 100; if the frigates are not finished the money expended will be lost, 101; if they are finished members fear they will be manned, 101; members who oppose finishing the frigates, think this country will never be a naval power, 101; its necessity will soon appear, 101; our commerce is now only less than that of Great Britain, 101; last year it was voted to finish the frigates--how can the House withhold the appropriation?, 101; if this body is a Legislature, how can its control over the public purse be denied?, 102; further debated, 103; question carried, 104, 105. _Specific Appropriations._--Moved to add to the bill the words, "which several sums shall be solely applied to the objects for which they are appropriated," 104; appropriations for some objects might fall short and others overrun, 104; this surplus should be used for deficiencies, 104; the military appropriation regarded as an aggregate for all the objects of the establishment, 104; theory good but the practice may be bad, 104; the practice of the Secretary, 105; motion carried, 105; bill returned to the House from the Senate with an amendment to remove the restriction to confine the expenditure to the specific objects for which each sum is appropriated, 106; not according to law as required by the constitution to appropriate money for one object and expend it for another, 106; the House has a constitutional power to depart from identifying articles to the sums appropriated, 106; the mode of the Senate gives too unbounded power to the Executive, 106; only four hours remain of the session--the bill may be lost, 106; to allow the Executive this power is an infringement of the constitution, 107; the amendment of the Senate lessens the privileges of the House, 107; further debate, 107; amendment lost, 107; Senate recedes, 108; a proposition for $197,000 to complete the frigates, 153; only two arguments in favor of the bill, viz. to lay the foundation for a navy, and the frigates being built, it is proper to man them, 153; if navies are necessary to European nations they are not to us--as a view of our revenue and the expense of a fleet prove, 153; revenue and expense examined, 153; reasons for the extra expense, 154; commerce will be carried on if we have no expensive naval force, 154; a navy a great evil to this country, our interests lie in the soil, 154; shall we at a time when we are threatened with danger abandon these frigates, 154; further debate, 154; bill passed, 155. _Resolution for a committee of inquiry relative to expenditure of naval appropriations_, 195; such a committee unusual, 195; implies censure on public officers, 196; no statements yet received, 196; inquiry occasioned because a further appropriation called for, 196; if money has been justly expended for the frigates little objection would arise to further appropriations, 196; the expense has exceeded all belief, 196; objections to the inquiry considered, 196; reasons for the inquiry, 196; such an inquiry always proper, 197; if favorable, it will forward the design of creating a navy, 197; different estimates which have been made to the House, 197; further debate, 197. _See Defensive Measures._ _See Appropriations_, Index, vol. 1. ARCHER, JOHN, Representative from Maryland, 569, 694. _Armed Vessels_, instructions to, _see Defensive Measures_. _Army Establishment_, bill to fix, returned with the President's veto, debated, 96. _Augmentation of Army_ bill, details of, 358; second reading ordered, 358. _Reduction of Army_, remarks on, 578. _Peace Establishment_, bill to fix, considered, 585; various amendments proposed, 585; better than former bill, and saves expense, 585; other considerations, 586. _Army, Provisional._--_See Defensive Measures._ _Army._--_See Index_, vol. 1. _Aurora_ newspaper, investigation in Senate relative to, 40. B BACON, JOHN, Representative from Massachusetts, 569, 693; on the apportionment bill, 574; relative to State balances, 595; on Ohio State Government, 649; on reading the letter of McHenry, 697; on call for information relative to cession of Louisiana, 704; on compensation to the ex-United States judges, 730; on jurisdiction over the District of Columbia, 736. BAER, GEORGE, jr., Representative from Maryland, 120, 179, 826, 429, 497. BAILEY, THEODORUS, Representative from New York, 14, 429, 497, 569, 694. _See Index_, vol. 1. BALDWIN, ABRAHAM, Representative from Georgia, 14, 121, 179, 326; on a national university, 35; on relief to sufferers by fire at Savannah, 43; on petition of Hugh L. White, 51; on contingent expenses of Congress, 57; on answer of House to President Adams' first message, 132; on building frigates, 146; on foreign intercourse, 202; on the limits of Georgia, 220; on relations with France, 225; on the bill to raise a provisional army, 246; on letters of marque, 299; on the remonstrance of Georgia, 331; on disputed Presidential elections, 406; senator from Georgia, 399, 481, 540, 661; elected President _pro tem._ of Senate, 541. _See Index_, vol. 1. _Bank of the United States._--_See Index_, vol. 1. _Bankruptcy_, bill to establish uniform system of, passed House, 536. _Bankrupt Act_, should not be amended but repealed, 724; _ex post facto_ law, 724; some objectionable features should be amended, 724; never should have been such a law, 724; other considerations in favor of amendment, 724; constitution does not give power to impair contracts, 725; the person may be exonerated but not the property, 725; further debate, 725. _Barbary Powers_, resolution authorizing the President further and more effectually to provide for protecting commerce against the, considered, 571; moved to strike out words "further and more," 571; if adopted in present form we pledge ourselves to increase the naval force, 571; the words relate to the measures proposed, 571; it went only to authorize the President without any pledges, 571; we pledge ourselves to extend more protection without inquiring into its necessity, 571; force enough at present, 571; further discussion, 572; amendment lost, 572; original motion carried, 572. BARD, DAVID, Representative from Pennsylvania, 17, 120, 180, 326. BARRAS, President of French Directory, his speech to the American minister, 115. BARTLETT, BAILEY, Representative from Massachusetts, 180, 429. BAYARD, JAMES A., Representative from Delaware, 123, 179, 430, 522, 569, 712; on the Quakers' memorial, 185; on foreign intercourse, 205; on relations with France, 242; on presents to ministers by foreign courts, 261, 262; on taking new census before laying direct tax, 265; on presents to ministers, 276; on admission to citizenship, 278; on bill relative to treatment of alien enemies, 281, 282; on abrogation of treaty with France, 313; on the expulsion of Matthew Lyon, 365, 369; on the case of Jonathan Robbins, 448, 449, 451, 452, 455; on the bill prohibiting the slave trade, 475; on repeal of internal taxes, 579, 581; on Georgia limits, 576, 577; on army reduction, 578; on judiciary resolutions, 582; on the Mediterranean trade, 586; on the collection of internal revenues, 587; on State balances, 594, 596; against repeal of judiciary establishment, 611; in favor of relief for French spoliations, 644, 646; on Ohio State Government, 648, 649, 650; against discharge of the committee relative to cession of Louisiana, 720; on amendment to the bankrupt act, 724; on taking up resolution relative to French spoliations, 732, 733; on jurisdiction over the District of Columbia, 737. BECKLEY, JOHN, chosen Clerk of House, 569. BENTON, LEMUEL, Representative from South Carolina, 195. _See Index_, vol. 1. BINGHAM, WILLIAM, Senator from Pennsylvania, 3, 114, 165, 321, 399, 485; elected President _pro tem._ of Senate, 9. _See Index_, vol. 1. BIRD, JOHN, Representative from New York, 429, 500; against the mausoleum to Washington, 515; on jurisdiction over District of Columbia, 519-525. BISHOP, PHANUEL, Representative of Massachusetts, 429, 498, 569, 693. BLODGET, SAMUEL, Memorial relative to a National University, 712. BLOODWORTH, TIMOTHY, Senator from N. Carolina, 144, 165, 821, 403, 481; on breach of privilege, 417. _See Index_, vol. 1. BLOUNT, THOMAS, Representative from North Carolina, 14, 120, 180, 326; on the petition of manumitted slaves, 58, 60; moves thanks to the Speaker at close of 4th Congress, 111. BLOUNT, WILLIAM, Senator from Tennessee, 3, 114; to provide further naval force, 149; on the Quakers' memorial, 186, 187. _See Index_, vol. 1. BOUDE, THOMAS, Representative from Pennsylvania, 569, 693. BOWIE, WALTER, Representative from Maryland, 647, 693. BRACE, JONATHAN, Representative from Connecticut, 326, 429; on intercourse with France, 344. BRADBURY, THEOPHILUS, Representative from Massachusetts, 14, 120. _See Index_, vol. 1. BRADFORD, WILLIAM, Senator from Rhode Island, 8, 113; chosen president _pro tem._ of the Senate, 119; resigns, as Senator from Rhode Island, 165. _See Index_, vol. 1. BRADLEY, STEPHEN R., Senator from Vermont, 540, 661; elected president _pro tem._ of the Senate, 662. _See Index_, vol. 1. _Breach of Privilege._--Case of Matthew Lyon, 205; case stated, 205; resolution of expulsion referred, 206; letter from Lyon, 206; report of Committee on Privileges, 206; motion to postpone carried, 207; question of hearing the evidence in committee or before the House discussed, 208; in committee, carried, 208; _note_, relative to the evidence, 208; motion of expulsion lost, 208; resolution to expel Griswold and Lyon, 210; motion to postpone, 210; no reason for delay, 210; neither the dignity, honor, nor peace of the House can be preserved while these members remain in it, 210; the innocent should not be punished with the guilty; Lyon passive throughout, 210; the business should be taken up with despatch, 210; motion to refer to Committee on Privilege, with leave to sit during the session, carried, 211; motion to report in writing, carried, 212; motion that both pledge their words to the House to keep the peace, carried, 212; how to be executed, discussed, 212; pledge given, 213; report of Committee on Privilege, 213; debate on the report, 214; resolution of expulsion disagreed to, 215; resolution of reprimand adopted, 216. _Resolution in the Senate_ relative to publications in a certain paper, considered, 408; what powers has the Senate in this matter?, 408; can it define the crime and sit as judges?, 408; it had better be given up, 409; what are the privileges of Congress, and how far are they defined by the constitution, examined at length, 409; should the privileges of the parliament of Great Britain be those of Congress?, 411; privilege limited to what is necessary and nothing more, 412; with respect to libels, 412; liberty of the press applied to these defined privileges, 413; principle of the law of libel, 413; apprehensions of Government from the press, 413; object of open doors, 414; how far in case of libels shall either branch of Government have power to decide in what affects the liberty of the citizen?, 415; only course to get rid of the subject, 416; further debate, 417, 418; amendment proposed, 419; resolution passed, 421; report of committee considered, 422; report as adopted, 422; form of proceedings reported, 423; proceedings in the case of William Duane, 424, 425, 426. BRECKENRIDGE, JOHN, Senator from Kentucky, 540, 661; moves repeal of Judiciary establishment, 546; on repeal of Judiciary establishment, 546. BRENT, RICHARD, Representative from Virginia, 14, 121, 179, 569, 694; on a direct tax on slaves, 55; on naval appropriations, 103; on the bill relative to the protection of commerce, 290. BROOKS, DAVID, Representative from New York, 120, 180, 326; on relations with France, 227; on exempting bank notes from stamp duty, 157, 160. BROWN, JOHN, Senator from Kentucky, 5, 117, 171, 323, 399, 481, 545, 665; on disputed Presidential elections, 405. _See Index_, vol. 1. BROWN, JOHN, Representative from Rhode Island, 429, 505; on petition of free blacks, 438; on the bill to prohibit carrying on the slave trade, 474; for a mausoleum to Washington, 516. BROWN, ROBERT, Representative from Pennsylvania, 326, 429, 497, 569, 693. BRYAN, NATHAN, Representative from North Carolina, 117, 120, 188; decease of, 295; _note_, 295. _See Index_, vol. 1. BUCK, DANIEL, Representative from Vermont, 60; on bill to increase compensation of President, and other officers, 64; on increase of duties on sugar, 72, 73; on the accommodation of the President, 90; on liberation of La Fayette, 110. _See Index_, vol. 1. BULLOCK, STEPHEN, Representative from Massachusetts, 148, 179, 326. BURGESS, DEMPSEY, Representative from North Carolina, 38, 188. _See Index_, vol. 1. BURR, AARON, Senator from New York, 3; vote for, as President in 1796, 62; vote for, as President, 487; notification of his election as Vice President, 487; Vice President in Senate, 665. _See Index_, vol. 1. BUTLER, WILLIAM, Representative from North Carolina, 570, 694. C CABELL, SAMUEL J., Representative from Virginia, 120, 192, 331, 522, 570, 725. _See Index_, vol. 1. CALBERT, GEORGE, petition of, 49. CAMPBELL, JOHN, Representative from Maryland, 570, 694. CANADIAN REFUGEES.--Resolution to appropriate certain lands on the Miami, as compensation to refugees from British Provinces, debated, 44; unnecessary to state now the location of the land, 45; general resolutions to grant land, adopted, 45; resolutions to grant five hundred acres to each, considered, 45; improper to grant equal quantity to each, 45; some have suffered more than others, 45; resolution lost, 45; Senate bill considered, 480; amendments rejected, 480; Senate adhere, 480; bill postponed, 480. CANTRILL, STEPHEN, petition of, 242. CARPENTER, THOMAS, petition to House relative to debates, 188; memorial to House relative to reporting debates, 505. _Census of the Union._--_See Index_, vol. 1. CHAMPLIN, CHRISTOPHER G., Representative from Rhode Island, 120, 179, 329, 429; moves vote of thanks, 388; in favor of Admirals in the navy, 474; for a mausoleum to Washington, 512, 515. _Charitable objects_, appropriations by Congress for, _see Index_, _vol. 1_. CHAPMAN, JOHN, Representative from Pennsylvania, 120, 165, 179, 326. CHAPMAN, NATHANIEL, Senator from Vermont, 321, 402, 481, 540. _Chickasaw Claims_, petition relative to, 49. CHRISTIE, GABRIEL, Representative from Maryland, 17, 429, 497; on the petition of manumitted slaves, 59; on increase of duties on sugar, 72; on petition of free blacks, 439. _See Index_, vol. 1. CLAIBORNE, THOMAS, Representative from Virginia, 17, 120, 180, 331, 570, 693; on relief to sufferers by fire at Savannah, 43, 44; on a direct tax on slaves, 54; on increase of duties on sugar, 72; on liberation of La Fayette, 110; on expatriation, 150; on establishing the Navy Department, 250; on admirals in the navy, 474; on trade with the Indians, 501; _note_, 501; against a mausoleum to Washington, 512, 515; on Georgia limits, 577. _See Index_, vol. 1. CLAIBORNE, WILLIAM C. C., Representative from Tennessee, 180, 326, 429, 497; on the claims of Stephen Cantrill, 243; on presents to ministers by foreign courts, 261, 263; on admission of aliens to citizenship, 279; on intercourse with France, 295; on letters of marque, 298; on direct taxes, 302, 304. CLAY, MATTHEW, Representative from Virginia, 120, 179, 432, 498, 569, 694. CLAYTON, JOSHUA, Senator from Maryland, 172; Clergy, pay of, in Massachusetts, 195. CLINTON, GEORGE, vote for, as President in 1796, 63. CLOPTON, JOHN, Representative from Virginia, 14, 120, 180, 326, 570, 693. _See Index_, vol. 1. _Closed doors, or open doors_, on the cession of Louisiana, discussion relative to, 701. COCHRAN, JAMES, Representative from New York, 120, 179, 330; on tax on lawyers, 155. COD FISHERIES.--Proviso offered against further increase of bounties, 163. _See Index_, vol. 1. COIT, JOSHUA, Representative from Connecticut, 14, 120, 179; on kidnapping negroes, 45; moves to postpone, 48; on petition of Hugh L. White, 49; on a direct tax on slaves, 55; on the purchase of a site for a Navy Yard, 66; on naval appropriation, 76; on answer of House to President Adams first message, 139; on tax on lawyers, 156; on exempting bank notes from stamp duty, 157, 159; on publication of the debates, 188. _See Index_, vol. 1. COLES, ISAAC, Representative from Virginia, 14. COLHOUN, JAMES LEWIS, Senator from South Carolina, 545. _Collectors of Revenue_, bill for, compensation of, considered, 655. _Commerce, Depredations on_, message of President on, 152; Report of Secretary of Treasury on, 152. _Commerce_, protection of, _see Defensive Measures_. _Commerce of United States_.--_See Index_, vol. 1. _Committee_, to wait on the President relative to answer to his message, 33; on memorial of Quakers, 188; on resolution to expel Matthew Lyon, 206; on privileges, 206; on provisions for determining legality or illegality of votes for President in the States, 407; to report suitable measures on death of Washington, 434; of House, 570. _Compensation of President, Vice President, and other officers._--Bill from the Senate to increase President's salary $5000, Vice President's $2000, Senators', Representatives' and various other officers' 25 per cent., 60; debate on commitment to Committee of the Whole, 61; provision should be made for the expense of removing to the new Federal City and the purchase of new furniture for the President, but not by increase of salary, 63; expense of removal can be made up hereafter, 64; new furniture every four or eight years too extravagant, 64; salaries sufficiently high, 64; better advance the salary and let the President purchase the furniture, 64; true question is, whether it be right and just to augment the salaries, or whether they are adequate and just for the sacrifices made by the officers in undertaking the business of government, 64; the expenses of the first President amounted to the whole sum allowed, 65; can other Presidents be expected to give their services? 65; such is also the case with other officers of the Government, 65; the practice of the individual States warrants an advance, 65; what occurred in Holland, 65; motion to strike out first section relative to President and Vice President, carried, 65. _See Index_, vol. 1. CONDIT, JOHN, Representative from New Jersey, 429, 498, 569, 693. CONDY, JONATHAN W., elected Clerk of House, 430. _Congress_, Fourth, second session, commenced, 3; closes with Washington's Administration, 111; Fifth, first session commences May 15, 1797, 113; extra session, 113; first session, Fifth Congress, adjournment postponed, 153; adjourns, 165; _note_ on, 165; extra session, objects of _note_, 165; second session, Fifth Congress, meets Nov. 13, 1797, 166; Fifth, second session, adjourns, 320; Fifth, third session, commenced, 321; Fifth, third session, adjourns, 326; Fifth, _note_, 389; Sixth, first session, 399; bill for fixing time and place of meeting, 479; adjournment first session, Sixth Congress, 480; first meeting at Washington, 481; Seventh, first session, Senate, 540; adjournment first session, Seventh Congress, 660; meeting of second session, Seventh Congress, 661; adjourns, 744. _Connecticut_, vote for President, 62, 487. _Contested Elections._--_See Index_, vol. 1. _Contingent expenses_ of Congress, 57; manner of acting upon them, 57. _Convention_ with French Republic ratified by Senate, 492. COOKE, WILLIAM, Senator from Tennessee, 3, 114, 400, 481, 540, 664; on breach of privilege, 408, 416; on the repeal of the Judiciary establishment, 560. _See Index_, vol. 1. COOPER, WILLIAM, Representative from New York, 14, 429, 497; on relief to sufferers by fire at Savannah, 40; on increase of duties on sugar, 72. _See Index_, vol. 1. COOPER, THOMAS, petition of, 656. COUNT DE GRASSE, report on petition of daughters of, 192; bill granting annuity to daughters of, considered, 195; $500 per year for each daughter proposed, 195; a serious sum, in five years amounting to $10,000, 195; this sum no consideration for the risk and responsibility the Count took of remaining in the Chesapeake in defiance of order, 195; _note_, 195; ten times that sum would have been paid if asked then, 195; livelihood of other families, 195; $400 allowed, 195. CRAIK, WILLIAM, Representative from Maryland, 14, 120, 179, 326, 429, 497; on a National University, 35, 38; on petition of Hugh L. White, 49; on military appropriations, 98; on restricting aliens from citizenship, 278; on the case of Jonathan Robbins, 451; on jurisdiction over District of Columbia, 521; on bill relative to District of Columbia, 524. _Credentials of members_, report of committee on, 530. CUTLER, MANASSEH, Representative from Massachusetts, 569, 693. CUTTS, RICHARD, Representative from Massachusetts, 569, 694. D DANA, SAMUEL W., Representative from Connecticut, 120, 179, 326, 429, 505, 569, 693; on the report on the Griswold and Lyon case, 215; on relations with France, 230; on a provisional army, 243; on the resolutions granting letters of marque, 300; on the sedition bill, 309; on the abrogation of the treaty with France, 312, 313; on the capture of French vessels, 361; on the law of retaliation, 386; on petition of free blacks, 439, 442; on the case of Jonathan Robbins, 449, 450, 453; on Georgia limits, 577; on repeal of internal taxes, 580; on reducing duties on imports, 591; relative to State balances, 596; against repeal of Judiciary establishment, 636; in favor of relief for French spoliations, 643, 646; on call for papers relative to cession of Louisiana, 699, 701, 709, 713, 716; on petition of United States judges for compensation, 728, 730. DAVENPORT, FRANKLIN, Representative from New Jersey, 323, 429, 497. DAVENPORT, JOHN, Representative from Connecticut, 14, 120, 429, 497, 569, 693. DAVIS, THOMAS T., Representative from Kentucky, 188, 502, 569, 693; on the case of Griswold and Lyon, 210; on the report on the Griswold and Lyon case, 214; relative to letters of marque, 296; on direct taxes, 302, 303; on the case of Jonathan Robbins, 450, 454; on reporting the debates, 509; on Georgia limits, 576; on call for papers relative to cession of Louisiana, 699; on granting land warrants to Lafayette, 742. DAWSON, JOHN, Representative from Virginia, 120, 179, 326, 429, 497, 693; on the claim of General Kosciusko, 191, 193; on the bill to repeal a part of the Sedition act, 535; on call for information relative to cession of Louisiana, 704; on postponing French spoliations, 734; on granting land warrants to Lafayette, 743. DAYTON, JONATHAN, Representative from New Jersey, 14, 120, 179, 326; on the address to the President, 25, 30, 32; on land for Canadian refugees, 45; offers resolution relative to land for Canadian refugees, 45; on liability of United States to a State for war expenses, 50, 51; on increase of duties on sugar, 73; on suability of the States, 88; answer to vote of thanks of the House, 111; chosen Speaker, first session, 5th Congress, 121; returns thanks, 121; on defensive measures, 145; on exempting bank notes from stamp duty, 160, 161; on relations with France, 226; on a new census for direct taxes, 265; acknowledges thanks of House as Speaker, 389; Senator from New Jersey, 401, 483, 541, 661; on breach of privilege, 418; on the right of the United States to the free navigation of the Mississippi, 690. _See Index_, vol. 1. DEARBORN, HENRY, Representative from Massachusetts, 14; on increase of duties on sugar, 71; on military and naval appropriations, 94; on naval appropriations, 101. _See Index_, vol. 1. _Debates, Reporting of the_, report on petition relative to, considered, 19; what would be the expense?, 19; about $1,600 per session, 19; this attempt would be of great use to the House, 19; why give one a privilege more than another, 19; no one to have preference?, 19; no need of expense, 19; more useful than to take so many newspapers, 19; further debate, 20; the book will be published whether the House adopt it or not, 20; shall the debates be under the sanction of the House or not?, 20; it will encourage the undertaking, and add to the stock of information, 20; petition of Thomas Carpenter, 188; reference objected to, 188; House had often refused to have any thing to do with the publication of the debates, 188; petition referred, 188; memorial of reporters for accommodation, considered, 501; statement of the Speaker, relative to his proceedings, 502; importance of having the debates taken with fidelity, 502; further debate, 502; referred to a committee, 502; report of committee against any action, 505; importance to the people of a knowledge of the merits of acts and reasons for our conduct, 506; uniform practice, 506; two objections considered, 506; shall an admission of a reporter take place independent of the Speaker, or shall he decide on its propriety?, 507; further debate, 507; objected that it will be against precedent, prevent members from having room, and a possibility the Speaker may indulge stenographers, 507; considered, 508; the only question is, whether the House shall persevere in the old plan, 508; further debate, 509, 510, 511; report adopted, 511. _In Senate_, application for permission to report debates of, 545; resolution, proceedings thereon, 545; permission granted, 545. _In House_, resolution offered that Speaker assign place to stenographers, 583; the question is, under what authority they shall be admitted, 583; facts relative to this view, 583; improper to come to any solemn decision, 584; important that the debates of the House should be taken with accuracy, and published without fear, 584; amended resolution carried, 584. _Defensive Measures._--A series of resolutions considered, 144; proposition to make further provision for forts offered now only as a subject for inquiry, 144; usefulness of this system of fortification doubtful, 144; this country may be drawn into a vortex of war and should be prepared, 144; resolution adopted, 144. _Completing and manning frigates._--Abstract principle first to be decided, 145; shall the frigates be manned?, 145; motion to strike out word "manning," 145; lost, 145; resolution adopted, 145. _To procure further naval force_, considered, 145; it might be used for convoys, 146; _note_, 146; impolitic to adopt the measure, 146; cost will not amount to tenth part of loss by captures, 146; resolution agreed to, 147. _Arming merchant vessels_, considered, 147; merchantmen are now arming, and it is necessary to regulate the business, 147; what is to be done with these vessels?, 147; if they act offensively it will lead to war, 147; does the law of nations permit merchant vessels of neutral nations to arm?, 147; the public defence intrusted to Government, 147; only exception in the case of letters of marque, 147; in any other case war has always followed, 148; further debate, 148; resolution lost, 148; further debate on resolution authorizing President to provide naval force when circumstances shall require, 149. _Bill from Senate authorizing President to raise an army of_ 20,000 men, question on its second reading, 243; not necessary to pass such a bill under any possible modification, 243; if an army is necessary, the Legislature ought to raise it, 243; no necessity for this measure at this session, 243; disgraceful to reject this bill without a second reading, 244; this course prescribed by the rules of the House, 244; what does a provisional army mean?, 244; this bill declares the power to raise an army in the President, the Constitution places it in Congress, 244; why not clothe the President with power to raise taxes, 244; it is the same in principle as authorizing the raising of an army and giving to the President power to suspend the raising, if necessary, 244; a manner of proceeding very objectionable, 244; unprecedented measure to reject a bill on its first reading, which contains such a variety of propositions, 245; intention to destroy the bill, 245; were troops ever raised in a different manner?, 245; expediency of the measure considered, 245; what is our external situation?, 245; this motion neither unprecedented nor improper, 246; in principle the army should not be raised until the House think it necessary, 246; objections arise because it is thought the militia will be sufficient for defence, 246; further considerations, 246; the bill delegates Legislative power to the President; objectionable as it respects volunteer corps, 246; this motion appears like indifference when the people expect effective measures, 247; extraordinary arguments used, 247; this bill sufficient to alarm the House, 247; the opposition does not arise from a determination to oppose defensive measures, 248; opposition to second reading, withdrawn, 248; every aid resorted to for pushing forward the scheme of a standing army, 273; Southern States to be terrified, 273; invidious distinctions drawn between the militia and regulars, 273; review of services of Southern militia, 273; motion lost to strike out 20,000, 274; motion to insert 10,000, 274; when peace occurs between France and England, the question of preparation for war should be determined, and the President should have the power during recess of Congress, 275; motion carried, 275; matter of training and disciplining given to the States, 275; amount of appropriation considered, 275; call of the House, _note_, 275; bill passed, 276. _Alien enemies_, bill respecting, considered in committee, 280; its provisions, 280; too much power to consider President's proclamation as law, 281; various amendments proposed, 281; debate on, 281; seven years proposed as extreme limit of imprisonment of offenders, 282; debate on the punishment of harboring offenders, 282; crime may amount to high treason, 282; it is not a bill to punish crimes, but to provide for the public safety in certain cases, 283; in case of war with France, all her citizens here would be alien enemies, 283; only three practicable modes present themselves on this subject, 283; these considered, 283; ordered to third reading, 284; motion to recommit so far as relates to power conferred on the President, 284; it is grounded on the principle that the President shall have power to do by proclamation what ought only to be done by law, 284; this point considered, 285; bill recommitted, 286; bill reported with modifications, 301; Senate bill, 301. _Instructions to armed vessels, report on_, considered, 286; motion to make the order for "to-morrow," 286; our vessels are seized by French cruisers every day, and decision required, 286; report just made, time should be given, 286; further debate on the necessity for immediate action, 287; copy of the bill, 287; motion to make it applicable to all nations, 287; this bill a declaration of war, 287; bad as our situation is, it is preferable to a state of war, 287; further arguments in favor of making the bill general, 288; propriety and justness of the bill, 288; vigorous measures called for, 288; objects of France, 288; to incense our foes only aggravates our misfortunes, 289; our treaties with Great Britain and Spain, 289; question negatived, 289; bill going to third reading, 290; reason for dissent, 290; ordered, 290; debate on the day for the passage of the bill, 291; do. passed, 291. _Marine corps, proposal to organize_, 292; debate thereon, 292; agreed to, 292. _Letters of Marque_, resolutions relative to, considered, 296; motion to refer to a committee to report a bill, 296; this course will shut out all hopes of a favorable termination of the dispute, 297; return of commissioners, 297; great difference between committing and agreeing to adopt a resolution, 297; negotiations not in a good train unless we pay the tribute France demands, 297; should be acted upon at once, otherwise the foreign nations will have notice to seize our vessels, 297; the reference will look like a challenge, 297; no good to be derived from a vote on this subject, 298; prospects of the negotiation, 298; all has been done for the defence of commerce which we can conveniently do, why then proceed to extreme measures?, 298; no good purpose answered by postponement of the resolutions, 299; this contrasted with former propositions, 299; Congress has acted with promptitude without taking this measure, 299; what measures have been adopted?, 299; nothing to expect from France without tribute, 300; question negatived, 300; postponement for two weeks moved, 300; debate, 300; carried, 300. _Bill to encourage the capture of French armed vessels_ by vessels of citizens of United States, read third time, 319; a bounty on guns brought in, according to their size, 319; of no use, 319; bill passed, 319; resolution for a bounty offered, 320; negatived, 320; similar bill negatived at previous session again considered, 358; carried in committee, 358; in House, on striking out first section, debate, 358; manner of evading laws for suspending intercourse explained, 359; present and former situation of the country, 359; bill may lead to difficulties, 359; bill of questionable advantage as regards privateers, 359; strengthen our Minister, 359; further debate on propriety of the measure, 360, 361; effect of measures of two last sessions, 362; further debate on, 363; bill rejected, 364. _Power of retaliation, bill vesting_ in the President, considered, 385; nature of the bill, 385; gives President power of life and death over every Frenchman in the country, 385; three arguments used for the bill, 385; these considered, 385; further debate, 386, 387, 388; bill passed, 388. _Delaware_, vote for President, 62, 487. _Delegates_ from Territories, _see Index_, vol. 1. DENNIS, JOHN, Representative from Maryland, 120, 180, 327, 501, 569, 693; on tax on lawyers, 156; on weekly license to distillers, 195; on petition of free blacks, 438; on jurisdiction over District of Columbia, 526; on the apportionment bill, 575; against abolishing the mint, 695; on jurisdiction over the District of Columbia, 736. DENT, GEORGE, Representative from Maryland, 14, 120, 179, 326, 429, 497; on compensation of President and other officers, 66; presides in Committee of whole House, 121, 123, 129; presides in Committee of Whole, 189, 195; on the law of retaliation, 385. _See Index_, vol. 1. _Despatches_ of American ministers at Paris, _see France_, relations with. DEXTER, SAMUEL, Senator from Massachusetts, 400; on disputed Presidential elections, 406. _See Index_, vol. 1. DICKSON, JOSEPH, Representative from N. Carolina, 429, 497. DICKSON, WILLIAM, Representative from Tennessee, 569, 693. _Diplomatic or Foreign Intercourse_, considered, 198; various sums proposed to fill the blanks, 199; a good time to bring back the establishment of a diplomatic corps to the footing settled at the outset of our Government, 199; tendency of our Government to consolidation in the Executive, 199; Legislature must resist, 199; this extension of influence of one department over another guarded in the constitution, 199; more beneficial to have no ministers at all, 199; object of motion to reduce this department, 199; its former state, 199; this no new doctrine, 200; danger of Executive influence has always been held up, 200; these doctrines are advanced because the views of the gentlemen are opposed by the measures of the Government, 200; appropriations made, 200; a small faction exists who wish to demolish the Government, 200; our foreign political intercourse in distinction from commercial intercourse, the subject to be considered, 200; what has been done hitherto, 201; our political intercourse greatly extended and from this comes the present crisis, 201; the constitution and laws have made certain offices necessary and left it to the Executive to fill them, and shall the House attempt to control this discretion?, 201; propriety of removing persons of opposite political sentiments, 202; has the Legislature nothing to do with the diplomatic establishment but to provide the money?, 202; origin of the law, 202; progress of our diplomatic intercourse, 202; necessary at this time that our ministers should remain as they are, 203; thus to change it would be forcing upon the Executive a measure contrary to his wishes, 203; object of the bill to limit extension of Executive power, 203; the Legislature can only settle the salaries of ministers and not determine their number, &c., 204; the motion reduces the number and salaries of ministers, as unnecessary, but the Executive thinks otherwise, 204; the constitutionality, the expediency, and the inconvenience of the measure considered, 204; further debate, 205; _note_, 216; discussion on filling the blanks, 216. _Direct Tax Law._--Difficulty of Commissioners in Pennsylvania, 433. _See Taxes._ _Disbursement of Public Moneys_, report of committee considered, 656; four navy yards were purchased without authority, and the money misapplied which was paid for them, 656; facts which gave rise to the purchase, 656; the law which directs a thing to be done authorizes the agents to do every thing necessary for accomplishing the object, 656; letter of the Secretary explains the purchase, 657; report does not notice some extensive stores erected by the present administration, 657; a doubtful expenditure the minority think, 657; proceedings of committee relative to the navy yards, 657; Secretary's letter was addressed to committee and not to the House, hence it was not inserted in the report, 658; the purchase of the yards, 658; explanation, 658; further explanation, 659. _Distilled Spirits._--_See Taxes._ _District of Columbia_, bill in relation to, considered, 518; moved to strike out first section, continuing in force law of Maryland and Virginia, in respective portions, 518; question if the existing laws are in force, and this bill to obviate all doubt, 518; jurisdiction a power that may or may not be exercised by Congress, 519; design of bill to cure evil arising from doubtful jurisdiction of Maryland and Virginia, 519; a difference of opinion seemed to exist as to the period when the powers of the States were superseded, 520; dilemma of the inhabitants, 520; construction contended for will disfranchise them, 520; reasons for the committee rising, 520; further debate, 521; motion to postpone the bill, 523; object to try the sense of the House, whether they were determined to assume the jurisdiction or not, 523; passage of the bill will deprive the citizens of their political, if not civil rights, 523; the people of the District ask the House to assume the jurisdiction, 523; to refuse it would be to insult them, 523; views of the inhabitants, 524; quarter from whence the opposition comes, 524; by the act jurisdiction commences with the occupation, 524; laws of the States in force until otherwise enacted by Congress, 525; the Legislature will not be satisfied without assuming the jurisdiction, 525; do members still wish to leave the subject in doubt?, 525; motion to postpone withdrawn, 526; moved to strike out first section, 526; impossible to preserve the rights of the people by the passage of the bill, 526; their judges and Governor will be the choice of the President, 526; interests of the people require the passage of the bill, 526; no necessity at present for the law, 527; other considerations, 527; details of the bill, examined, 527; motion negatived, 528; other amendments proposed, 528; bill reported for Territorial Government, 592; referred, 592; remonstrance, 592; resolutions on the retrocessions of jurisdiction to Virginia and Maryland, 736; restore the people to their former condition, 736; no advantage to retain the jurisdiction, 736; its exercise will take up a great deal of time and great expense, 736; it was prudent not to change until experience proved its inconvenience, 736; all the advantages of exclusive jurisdiction will be lost by the passage of the resolution, 737; no constitutional power exists enabling Congress to recede the Territory, 737; if receded, what obligation is there in Congress to remain here?, 738; the contract can be done away only by the unanimous consent of all the parties, 738; if we had power to accept, we had power to recede, 738; Congress possess the right with the assent of these two States to recede, 739; constitutional points considered, 739; further debate, 740; resolutions lost, 741; _note_, 741. DUANE, WILLIAM, proceedings against, in Senate, 423, 424, 425; letter to Senate, 425. _Dumb Legislature, A_, 591. _Duties on Imports_, proposition to increase duties, considered, 71. _Brown Sugar_, an eligible article for increased duty, 71; its consumption not to be decreased, 71; falls more upon the poor than on the rich, 71; rise of labor must follow increase of duty on it, 71; present duty one and a half cent per pound, an additional half cent not much difference to consumer, 71; a necessary of life, already too high, 71; moved to amend by one cent per gallon to molasses, 72; only way to secure duty on sugar was by advancing duty on molasses, 72; one advance on sugar will pave the way for others, 72; amendment moved to defeat increased duty, 73; amendment carried, 74; amended motion carried, 74. _Salt_, additional duty of five cents moved, 74; at a lower rate of duty now than in other countries, 74; duty not easily evaded, 74; tax laid heavily on salt because of all necessaries this most easily collected, 74; operates as a poll tax, 74; a tax on agriculture, 74; article high now, 75; an unequal and odious tax, 75; objections would be good if it was proposed to raise the whole revenue from it, or substitute it for a land tax, 75; the high price not occasioned by a duty, 75; question lost, 75; eight cents adopted in committee, 163; salt tax as compared with license and stamp tax, 163; _note_, 163; a salt tax the most unequal tax in its operation, 163; oppressive to certain parts of the Union and no way affecting others, 163; amendment with regard to drawback proposed, 163; debate thereon, 163; this small advance cannot operate oppressively, 164; shall this necessary of life be called on for every thing Government wants?, 164; discontent already arisen, 164; question decided in affirmative, 164; motion to strike out all relating to drawback to fishing vessels, 164; the amount allowed is too large, 164; debate thereon, 164; motion lost, 164; 33-1/3 per cent. fixed, 164; limitation clause for two years adopted, 164; bill passed, 164. _In Committee_--twenty per cent. additional duty on wine adopted, 477; two and a half per centum on all merchandise subject to ten per cent. duty adopted, 477; additional duty of one and a half per cent. on brown sugar rejected, 478; two and a half per cent. drawback allowed additional on all re-exports, 478; resolution instructing Committee on Ways and Means to report on propriety of reducing duties on certain articles, considered, 591; articles of first necessity and paid highest duty, 591; certain members have pledged themselves for repealing all internal taxes, 591; further remarks, question lost, 592. _See Index_, vol. 1. _Duties on Tonnage._--_See Index_, vol. 1. _Duties, Stamp_, on vellum parchment and paper, bill for 149. _See Taxes, Direct and Indirect._ E EARLY, PETER, Representative from Georgia, 712. EDMOND, WILLIAM, Representative from Connecticut, 179, 327, 429, 497; on the Quakers' memorial, 187; on abrogation of the treaty with France, 315; on the law of retaliation, 385; on petition of free blacks, 440. EGGLESTON, JOSEPH, Representative from Virginia, 326, 501, 473. EGE, GEORGE, Representative from Pennsylvania, 120. _Elections_, military interference with, 446. _Elections Presidential_, disputed, _see President's election disputed_. _Election of President._--House and Senate proceedings, 530, 531; do. proceedings of the House as prescribed by Constitution, 531; repeated ballotings, 531, 532, 533; Thomas Jefferson elected, 533; _note_, 533. _Electors_ of President, _see Index_, vol. 1. ELLERY, CHRISTOPHER, Senator from Rhode Island, 540, 661. ELLSWORTH, OLIVER, vote for, as President, 1796, 63. ELMENDORPH, LUCAS, Representative from New York, 120, 179, 326, 429, 447, 569, 694. ELMER, EBENEZER, Representative from New Jersey, 569, 693. _Enemies, Alien._--_See Alien Enemies._ _Estimate for Appropriations_, for treaty with Cherokees, 198; on a monument for Washington, 479. EUSTIS, WILLIAM, Representative from Massachusetts, 569, 694; on protection against the Barbary powers, 571; on repeal of internal taxes, 579; in favor of relief for French spoliations, 645; on compensation to the ex-United States Judges, 730; on French spoliations, 735; on jurisdiction over the District of Columbia, 740. EVANS, THOMAS, Representative from Virginia, 120, 179, 327, 429, 497. _Executive Departments._--_See Index_, vol. 1. _Expatriation._--A bill prohibiting citizens of the United States from entering any foreign military or naval service, considered, 149; motion to strike out section defining mode by which a citizen of the United States may dissolve ties of citizenship and become alien, 149; principle wrong, especially at this time, 149; men have a natural right to choose under what government they will live, 150; the right of expatriation should be allowed unclogged, 150; a man born and educated in a country owes obligations not easily shaken off, 150; doctrine of perpetual allegiance derived from Great Britain; bad in practice, 150; expatriation the opinion of the country, and now the time to declare it, 150; objections considered, 150; further debate, 151; if a right of expatriation exists, there should be some mode of exercising it, 151; the case of Talbot, 151; perpetual allegiance absurd, 151; right recognized by Executive and Judiciary, 151; unnecessary to consider it, 151; motion to agree to report lost, 152; further consideration postponed, 152. F FEARING, PAUL, Representative from N. W. Territory, 569, 693; on Ohio State Government, 648, 650, 651; unseated as delegate from Territory of Ohio, 726. FINDLAY, WILLIAM, Representative from Pennsylvania, 14, 135, 326; on increase of duties on sugar, 73; on increase of duties on salt, 75; on temporary direct tax, 271. _See Index_, vol. 1. _Flag of the United States._--_See Index_, vol. 1. FOSTER, ABIEL, Representative from New Hampshire, 14, 120, 179, 326, 429, 497, 569, 693. _See Index_, vol. 1. FOSTER, DWIGHT, Representative from Massachusetts, 14, 120, 180, 326, 429; presents petition of Thomas Carpenter, 185; on temporary direct tax, 270; Senator from Massachusetts, 481, 544, 663. _See Index_, vol. 1. FOSTER, THEODORE, Senator from Rhode Island, 5, 113, 165, 321, 399, 481, 540, 661. _See Index_, vol. 1. FOWLER, JOHN, Representative from Kentucky, 139, 193, 436, 522, 569. _France, Relations with._--President's message considered, 225; painful differences exist between this country and the French Republic, 225; the House should declare whether we are to have peace or war, 225; resolutions that it is inexpedient to go to war with France--that the arming of merchant vessels should be restricted--that provision should be made for protection of the sea-coast and interior, offered, 225; not a suitable time for a declaration of sentiment of first resolutions, 225; our situation better than it was twenty-three years ago, 225; verbal amendments proposed, 226; intention of the resolution, 226; now is the time to declare whether the country shall remain at peace or go to war, 227; the state of things calls for this declaration, 227; Legislature should determine whether they immediately mean to go to war or not, 227; defensive war always ready to undertake, 228; though we value peace, we are ready to resist insult and injury, 228; extent of defensive measures should now be decided on, 228; proceedings of France amount to a declaration, 229; to say we are not at war is no more than to say it is light when the sun shines, 229; to agree to the proposition would countenance the French assertion that we are a divided people, 229; the time has come when a stand should be made, 229; review of the past, 229; arguments in favor considered, 230; arguments of opposers examined, 230; the question very unimportant, 230; important time lost in discussing it, 230; it is a question of peace or war, 232; to strike out words "French Republic" proposed, 232; resolution unnecessary and uncommon, 232; this country is now the passive party, and any declaration on our part would have little effect, 232; our course with Great Britain, 233; the course of France, 232; instance of Venice, 233; ready to engage in a defensive but not offensive war, 234; a disposition on the part of the House and Government for war, 234; apprehension of war already produced effects in some parts of the country, 234; the resistance to the amendment shows the intention is to say to France, "You may commit against us injury after injury, we will not resent it," 234; peace and war are not in our power, 234; the movers of amendment exposed, 235; their intentions abject submission to France, 235; those now so loud for peace, heretofore supporters of war, shown, 235; example of the Swiss, 236; reply to objections, 236, 237; House obliged to act in the dark, 237; effect of French decree, 238; services of members as soldiers, 238; further debate, 239; Treaty of Pilnitz a forgery, 239; further debate, 240; resolution calling upon the President for papers, 241; debate thereon, 241, 242; subject postponed, 242. _Commercial intercourse with France._--Bill for suspending debate on its final passage, 292; no reason has been assigned for this bill, 292; effects of the bill, 293; effects on French commerce, 293; object to distress France and French West Indies, 293; its operation, 294; objections examined, 294; further debate, 295; bill passed, 295. Resolutions relative to relations with France, offered, 296. _Bill to abrogate the treaty between France and the United States_, 310; best to declare what is the state of the country, 310; the proper question to be considered, 310; bill from the Senate not taken up, but resolution for a committee to report on the state of the country, 311; debate on the reference, 311; the resolution an unmeaning thing, 311; question negatived, 312; bill from Senate again taken up and read, 312; amendment moved and carried, relative to enacting clause, 313; debate on amendments, 313; is a violation of the treaties on the part of France sufficient ground for our setting them aside?, 314; no proof that our claims have been refused, 314; further explanation of views, 315; preamble adopted and bill passed, 316. _Bill suspending commercial intercourse_ with France returned amended by the Senate to the House, motion to postpone, 320; amendments considered, 320; bill passed, 320. _Bill to suspend intercourse with France and open it with St. Domingo_, considered, 334; section three, providing for intercourse with St. Domingo, debated, 334; strange proposition, 335; our non-intercourse affects the mother country, and it is proposed to relax it by way of the colonies, 335; or to negotiate with French agents in the colonies, and thus encourage rebellion and usurpation, 335; these agents independent of the decrees of France, 335; they may carry on commerce with this country even if at open war with France, 335; statement of the relation of affairs, 336; objects of this bill twofold, 337; reason for the passage of the bill at the last session, 337; weakness now to recede, 337; measures proposed are justifiable only in a state of war, 337; the question, 337; various reasons for the section in the bill, 338, 339; review of the relations between France and her colonies, 399; _note_, 399; advantages of commerce with Hispaniola, 340; this bill will authorize the President to negotiate with subordinate agents of a government against the will of that government, 341; it might produce war, 341; important considerations urged, 341; this measure is not so obnoxious as to be considered by France a cause of war, 342; consequences of the independence of St. Domingo, 342; the amendment changes the principle of the bill, 343; examination of the effects of the amendment, 343; if any part of the French dominions cease to depredate on our commerce, we might open intercourse with them, 344; the ground upon which we stand, 344; design of the amendment to take away the objection that the bill was calculated to promote independence of St. Domingo, 345; extent of the amendment, 345; further debate, 346; amendment negatived, 347; amendment proposed relative to part of New Orleans, 347; bill passed, 347. French edict relative to neutrals; call for information respecting its suspension, 356; answer of the President, 357; motion to print discussed, 357. _Despatches of American Ministers._--_Note_, as an appendix to debates of Fifth Congress, 389; extract of a letter from Mr. Pinckney to the Secretary of State, 389; ditto to M. De la Croix, 390; report of Major Rutledge on the interview with M. De la Croix, 390; further report, 391; notification from M. De la Croix to General Pinckney, 392; reply of General Pinckney, 392; remarks of General Pinckney, 392; interview with Talleyrand, 392; proceedings of Talleyrand's agents, 393, 394, 395, 396; letter of General Pinckney to the Secretary of State, 397; remarks on the disavowal of Talleyrand, 397; members of the Directory, 398. FRANKLIN, JESSE, Representative from North Carolina, 14; Senator from North Carolina, 404, 541, 661. _See Index_, vol. 1. FREEMAN, JONATHAN, Representative from New Hampshire, 120, 180, 326, 429, 497; on answer of House to President Adams' first message, 129. FREEMAN, NATHANIEL, Jr., Representative from Massachusetts, 14, 120. _See Index_, vol. 1. _French Refugees._--_See Index_, vol. 1. _French Republic_, ratification of Convention with, 492. _French Spoliations._--Resolution that provision be made for indemnification for losses sustained by French spoliations, considered, 642; the principle must be decided by the House, 643; the resolution so broad as to defeat its object, 643; it goes to commit the House to the whole extent without any examination, 643; reasons for speedy action, 643; object of the resolution to place the question in a train for decision, 643; it is founded on the principle that Government has abandoned the claim, so that no citizen can come forward against the French Government, or any French citizen, 643; further debate, 644; a large portion of the losses so covered by insurance, the Government will not have to pay them, 645; further debate, 646; motion to postpone lost, 647; report made, 655; further remarks, 726; resolution, 727; amendments proposed, 732; lost, 732; discussion on calling yeas and nays on taking up for reference the original resolution, 732; referred, 733; a question of great moment, 733; debate on postponement, 733, 734; motion to take up, 743; lost, 744. _Friends or Quakers_, memorial of, 182; report on, 209. _Frontiers, Protection of._--_See Index_, vol. 1. _Fugitives from justice._--_See Index_, vol. 1. _Furniture_ for President's House, _see Appropriations_. G GALLATIN, ALBERT, Representative from Pennsylvania, 14, 120, 179, 326, 429; on the address to the President, 32; on a direct tax on slaves, 52, 54; on naval policy, 68; on increase of duties on sugar, 71, 72, 73; on increase of duties on salt, 74; on naval appropriations, 78; on direct and indirect taxes, 82; on limitation period relative to claims against United States, 85; on suability of the States, 86; on the accommodation of the President, 92; on military and naval appropriations, 93, 94, 95, 98, 106; on naval appropriations, 100, 104, 105; proposes resolutions relative to statements from War Department, 105; on answer of House to President Adams' first message, 140; on resolutions relative to defensive measures, 144, 146; on arming merchant vessels, 147; on expatriation, 151; on a naval armament, 153; on exempting bank notes from stamp duty, 158, 160, 161; proposes composition with banks in lieu of tax, 162; on additional duty on salt, 163, 164; offers proviso against increase in bounties to fishermen, 163; on address to the President, 182; on the Quakers' memorial, 184; against weekly licenses to distillers, 194; on naval expenditure, 197; on foreign intercourse, 200, 204; on the report on the Griswold and Lyon case, 215, 216; on the limits of Georgia, 223; on relations with France, 229; on a provisional army, 243, 247; on establishing the Navy Department, 248; on military appropriations, 252, 253; to postpone consideration of naturalization laws, 260; on presents to ministers by foreign courts, 264; on a temporary direct tax, 266; on the classes to be excluded from citizenship, 277, 278; on bill relative to treatment of alien enemies, 282, 284; on the consideration of the bill relative to the protection of commerce, 290; on intercourse with France, 293; relative to letters of marque, 298; on direct taxes, 302; on alien enemies, 305; on the sedition bill, 308; on the abrogation of the treaty with France, 311, 312, 315; on intercourse with France and St. Domingo, 337, 343, 345; on increase of the navy, 348; on the capture of French vessels, 359; on repeal of alien and sedition laws, 365; on the expulsion of Matthew Lyon, 370; on repeal of alien law, 373; on the law of retaliation, 385; on petition of free blacks, 440, 444; on the case of Jonathan Robbins, 449, 452, 455. _See Index_, vol. 1. GANTT, Rev. Mr., elected chaplain to the Senate, 544, 694. GATES, proposal for a monument to, 725. _Georgia_, vote for President, 62, 487. _Georgia limits._--_See Territories._ _Georgia, remonstrance of_, report of committee on, 331; compensation recommended, 331; points of the remonstrance, 331; comparative expenditure in defending northern and southern frontiers from depredations of Indians, 332; amended resolution proposed, 348; carried, 348; report on, 537. _German language, laws in_, motion to print, 165; reason for the motion, 165; if a translation was authorized, great mischiefs might ensue, 165. GERRY, ELBRIDGE, letter from Paris, 304.--_See Index_, vol. 1 GILBERT, EZEKIEL, Representative from New York, 14; on the address to the President, 32; on the petition of manumitted slaves, 59; on military and naval appropriations, 107. _See Index_, vol. 1. GILES, WM. B., Representative from Virginia, 17, 120, 569; on the address to the President, 17, 21, 23, 27, 32; on relief to sufferers by fire at Savannah, 43; on answer of House to President Adams' 1st message, 124, 137; on resolution relative to defensive measures, 144, 146; on expatriation, 151-152; on a naval armament, 154; on tax on lawyers, 156; on the Griswold and Lyon case, 214; on the limits of Georgia, 223; on relations with France, 227, 232, 234, 236, 240, 241; on protection against the Barbary powers, 571; on apportionment bill, 573; on the Mediterranean trade, 586; in favor of repeal of Judiciary Establishment, 603; on Ohio State Government, 648, 649, 650. _See Index_, vol. 1. GILLESPIE, JAMES, Representative from North Carolina, 16, 120, 189. _See Index_, vol. 1. GILMAN, NICHOLAS, Representative from New Hampshire, 14. _See Index_, vol. 1. GLENN, HENRY, Representative from New York, 14, 120, 179, 326, 429, 497. _See Index_, vol. 1. GODDARD, CALVIN, Representative from Connecticut, 569, 693; on call for information relative to cession of Louisiana, 705, 718. GOODE, SAMUEL, Representative from Virginia, 433; on petition of free blacks, 442. GOODHUE, BENJAMIN, Senator from Massachusetts, 3, 113, 165, 321, 399. _See Index_, vol. 1. GOODRICH, CHAUNCEY, Representative from Connecticut, 14, 120, 179, 326, 429, 505; on a direct tax on slaves, 53. _See Index_, vol. 1. GOODRICH, ELIZUR, Representative from Connecticut, 429, 497. GORDON, WILLIAM, Representative from New Hampshire, 121, 180, 326, 429; on duties on naturalization certificates, 155; on the Quakers' Memorial, 180; against weekly licenses to distillers, 194; on the Georgia limits, 221, 222; on abrogation of treaty with France, 313. GRAY, EDWIN, Representative from Virginia, 498, 569, 694. _Great Britain_, retaliatory measures upon, _see Index_, vol. 1. GREEN, ASHBEL, appointed chaplain to the House, 169. GREEN, THOMAS M., delegate from Mississippi Territory, 693. GREENE, RAY, Senator from Rhode Island, 165, 321, 485; resigns his seat in Senate, 491. GREENUP, CHRISTOPHER, Representative from Kentucky, 14; on land for Canadian Refugees, 45. _See Index_, vol. 1. GREGG, ANDREW, Representative from Pennsylvania, 17, 121, 188, 429, 498, 570, 693; on jurisdiction over the District of Columbia, 738. _See Index_, vol. 1. GRISWOLD, ROGER, Representative from Connecticut, 14, 120, 179, 326, 429, 497, 569, 693; on answer of House to President Adams' first message, 131; against weekly licenses to distillers, 194; assault on Matthew Lyon, 209; Griswold and Lyon, case of, _see Breach of Privilege_. On mausoleum to Washington, 503; on reporting the debates, 508; on ratio of representation, 572; on public printing, 573; on Georgia limits, 577; on Mediterranean Trade, 585; on the collection of international revenue, 588; on French spoliations, 642, 644; on Ohio State Government, 650; on unauthorized purchase of navy yards, 656; on the call for papers relative to the cession of Louisiana to France by Spain, 698, 700, 703, 705, 713, 714; on petitions of United States Judges, 728. _See Index_, vol. 1. GROVE, WILLIAM BARRY, Representative from North Carolina, 14, 121, 179, 502, 581, 696. _See Index_, vol. 1. GUNN, JAMES, Senator from Georgia, 3, 119, 165, 321, 398. _See Index_, vol. 1. H HANCOCK, GEORGE, Representative from Virginia, 44. _See Index_, vol. 1. HANGING MAW, petition of widow of, 96. HANNA, JOHN ANDRE, Representative from Pennsylvania, 120, 180, 326, 429, 498, 569, 694. HARPER, ROBERT G., Representative from South Carolina, 121, 179, 326, 429, 498; on a national university, 35; on relief to sufferers by fire at Savannah, 41; on petition of Hugh L. White, 49; on a direct tax on slaves, 53; on naval policy, 68; on increase of duties on salt, 74-75; on suability of the States, 86, 88; on naval appropriations, 105; on liberation of La Fayette, 110; on military and naval appropriations, 107; on defensive measures, 147; on a naval establishment, 154; on exempting bank notes from stamp duty, 160; on additional duty on salt, 164; on the Quakers' Memorial, 183; on the expenditure for the naval service, 195; on relief to daughters of Count de Grasse, 195; on appropriation for foreign intercourse, 200, 204; on the case of Griswold and Lyon, 211, 215; on diplomatic intercourse, 216; on the limits of Georgia, 218, 221; moves amendment relative to importation of slaves in Mississippi Territory, 224, _note_, 224; on relations with France, 226, 234, 239; on a provisional army, 245; on establishing the Navy Department, 250; on the naturalization laws, 253, 254; against taking new census before laying direct tax, 265; relative to letters of marque, 297; on the sedition bill, 306, 308; on abrogation of treaty with France, 315; on intercourse with France, 320, 336, 345; on increase of the navy, 351; on relations with France, 356; on the capture of French vessels, 360; on petitions relative to repeal of alien and sedition laws, 364; asks leave to bring in a bill to amend direct tax law, 433; on petition of free blacks, 439; on the case of Jonathan Bobbins, 451, 454; on admirals in the navy, 474; for a mausoleum to Washington, 513, 516, 517; on jurisdiction over District of Columbia, 520, 521. _See Index_, vol. 1. HARRISON, CARTER B., Representative from Virginia, 14, 120, 180, 329; advocates weekly licenses to distillers, 194. _See Index_, vol. 1. HARRISON, WILLIAM HENRY, Representative from North West Territory, 430; credentials referred to committee, 432. HARTLEY, THOMAS, Representative from Pennsylvania, 11, 120, 179, 329; on relief to sufferers by fire at Savannah, 40, 41, 42, 43; on lands for Canadian refugees, 44; on a direct tax on slaves, 55; on the compensation of President and other officers, 61; on the accommodation of the President, 89; on military appropriations, 98, 99; on naval appropriations, 100; on liberation of La Fayette, 108; on answer of House to President Adams' 1st message, 141; on the limits of Georgia, 223; on intercourse with France, 344; decease reported to the House, 521. _See Index_, vol. 1. HATHORN, JOHN, Representative from New York, 34. _See Index_, vol. 1. HAVENS, JONATHAN N., Representative from New York, 14, 120, 179, 326. _See Index_, vol. 1. HASTINGS, SETH, Representative from Massachusetts, 693. HEATH, JOHN, Representative from Virginia, 14; on the address to the President, 20; on the petition of manumitted slaves, 58; on the accommodation of the President, 89, 90; on military and naval appropriations, 106; on liberation of Lafayette, 109. _See Index_, vol. 1. HEISTER, DANIEL, Representative from Maryland, 694 HEISTER, JOSEPH, Representative from Pennsylvania, 188, 429, 497, 569, 693. HELMS, WILLIAM, Representative from New Jersey, 569, 693. HEMPHILL, JOSEPH, Representative from Pennsylvania, 569, 693; on call for information relative to cession of Louisiana, 704. HENDERSON, ARCHIBALD, Representative from North Carolina, 14, 120, 179, 429, 498, 569, 694; on the accommodation of the President, 88, 92; against the repeal of the Judiciary Establishment, 597. HENDERSON, PLEASANT, claim to certain lands, 518. HENRY, JOHN, Senator from Maryland, 3, 117; vote for, as President in 1796, 63. _See Index_, vol. 1. HILL, WILLIAM H., Representative from North Carolina, 429, 500, 570, 696; on petition of free blacks, 438; on reporting the debates, 501. HILLHOUSE, JAMES, Senator from Connecticut, 3, 118, 171, 323, 399, 481, 544, 664; elected President of Senate _pro tem._, 488. _See Index_, vol. 1. HINDMAN, WILLIAM, Representative from Maryland, 14, 120, 179, 327. _See Index_, vol. 1. HOBART, JOHN SLOSS, Senator from New York, 171; resigns, 172. HOGE, WILLIAM, Representative from Pennsylvania, 569, 693. HOLLAND, JAMES, Representative from North Carolina, 14, 570, 693; on the petition of manumitted slaves, 59; on increase of duties, 71, 74; on increase of duties on salt, 75; on the accommodation of the President, 90; on naval appropriations, 100. HOLMES, DAVID, Representative from Virginia, 120, 179, 326, 429, 497, 569, 693; on printing the laws in the German language, 165. HOSMER, HEZEKIAH L., Representative from New York, 120, 179, 326. _House_, secret session of, 79; adjourns at close of fourth Congress, 111; answer to President Adams' first message, 123; answer as delivered to President Adams' first message, 143; answer to President's message, 180; answer to President's message to third session, fifth Congress, 329; _note_ on, 330; address in answer to President's message, 431; thanks to General Lee for eulogium on memory of Washington, 436; refuses to accompany Senate to hear eulogium on Washington, 447; answer to President's message second session, sixth Congress, 499; proceedings relative to purchase of Louisiana, 721; tenders thanks to Speaker Macon, 744. HOWARD, JOHN E., Senator from Maryland, 6, 114, 171, 323, 403, 481, 540, 661; chosen President of Senate _pro tem._, 481. HUGER, BENJAMIN, Representative from South Carolina, 572, 694; for a mausoleum to Washington, 516; on collection of internal revenue, 588; on call for papers relative to cession of Louisiana, 699, 719; on considering the French spoliations, 733; on jurisdiction over the District of Columbia, 736. HUNT, SAMUEL, Representative from New Hampshire, 693. HUNTER, JOHN, Senator from South Carolina, 6, 114. HUNTER, NARSWORTHY, Delegate from Mississippi, 569; decease of, 640. I IMLAY, JAMES H., Representative from New Jersey, 120, 179, 326, 429, 497. _Impressment of Seamen_, message in relation to, 333. _Imprisonment for debt._--Bill making provision for relief of persons, passed, 479; particulars of bill, 479; resolution to revise the laws, offered, 593; object, to secure debtor his property and provide some remedy beside imprisonment, 593; considerations against imprisonment urged, 593. _Inaugural Address_ of John Adams, 11; of Thomas Jefferson, 490. _Indian Lands_ within a State, rights over, _see Index_, vol. 1. _Indian Trading Houses._--_See Index_, vol. 1. _Intercourse with France._--_See France, relations with._ IREDELL, JAMES, vote for as President in 1796, 63. J JACKSON, ANDREW, Representative from Tennessee, 14; first appearance in National Councils, 48; _note_, 48; on petition of Hugh Lawson White, 48, 49; presents petition of George Colbert, 49; Senator from Tennessee, 165; resigns as Senator, 321. JACKSON, GEORGE, Representative from Virginia, 14, 429, 497, 569, 693; on a direct tax on slaves, 53; on the Judiciary Establishment, 552; on resolutions relative to the navigation of the Mississippi, 678. _See Index_, vol. 1. JACKSON, JAMES, Senator from Georgia, 541. _See Index_, vol. 1. JARVIS, JAMES, officer on frigate Constellation, 470. JAY, JOHN, vote for as President, 63, 487. JEFFERSON, THOMAS, his address as President of the Senate, 10; _note_, 10; vote for as President in 1796, 62; Vice President and President of Senate, 113, 171, 323; Vice President attends Senate, 404, 484; vote for as President, 487; address on retiring from Senate, 488; inauguration as President, 490; address, 490; answer to notification of the House of his election, 535; letter to President of Senate, 541; _note_, 541; views on slavery, an obstacle to his receiving the vote of South Carolina for President, 636. _See Index_, vol. 1. JOHNSON, CHARLES, Representative from North Carolina, 569. JOHNSTON, SAMUEL, vote for as President in 1796, 63. JONES, JAMES, Representative from Georgia, 429, 501; on petition of free blacks, 439, 443; on the case of Jonathan Robbins, 456; on the apportionment bill, 574. JONES, WALTER, Representative from Virginia, 120, 179, 327. JONES, WILLIAM, Representative from Pennsylvania, 569, 723. _Judiciary System_, bill to amend a previous act establishing judicial courts, 419; ordered to second reading, 419; numerous reasons for the introduction of the bill, 420; parts of the bill, 427; bill passed to third reading, 427; _note_, 427. _In the Senate_, part of message relating to Judiciary system, read, 545; motion that the act of last session respecting the Judiciary Establishment be repealed, 546; _note_, 546; motion debated, 546; 1st. the law is unnecessary and improper--2d. the judges and courts created by it, can, and ought to be abolished, 546; existing courts, competent and able to discharge duties, 546; such was the case when the law passed, 546; amount of business before the courts, 546; suits decreasing, 546; United States never need thirty-eight federal judges, 547; limit to federal judicial powers, 547; power of Congress to put down these additional courts and judges, examined, 547; may be abolished as well as created under the constitution, 547; a judge cannot hold his office after it is abolished, 548; once a judge always a judge, examined, 548; one of the most important questions ever before a Legislature, 548; what says the constitution?, 548; judges _hold_ during good behavior, 548; their compensation as prescribed, designed to preserve their existence, 549; motion unconstitutional, 549; the ancient system stated, 549; if you repeal so far as regards these judges, you may for all, 550; thereby you destroy the check provided in the constitution, 550; all power is not vested in the Legislature, 550; constitutional power, 550; words _shall_ and _may_, 550; more afraid of an army of judges than an army of soldiers, 552; it is said the law which creates a judge cannot be touched, 552; the moment it is passed it exists to the end of time, 552; the power to alter the system rests here, or nowhere, 552; extent of our country, 553; tendency of acts of late administration, 553; history of legislative proceedings in the formation of the Judiciary system, 553; is this system so vicious as to deserve nothing but abhorrence?, 554; the letter and spirit of the constitution against the repeal, 555; Judicial Department should be independent, 555; but not independent of the nation itself, 555; what are the facts?, 555; if a court once established, cannot be vacated, the greatest absurdities follow, 556; the judges of Mississippi Territory, 556; further remarks on the independence of the Judiciary, 557; the expediency of repealing the law considered, 557; shall we restore to the people their former courts? is the true question, 558; defects of the present system, 559; reasons for the repeal insufficient, 560; the expediency of the repeal examined, 560, 561; the constitutional point examined, 562; repeal needed as a precedent, 562; our government a system of salutary checks, 563; constitutional point further examined, 563, 564, 565; bill passed, 565; _note_, 565. _In the House_, resolutions offered in committee relative to the Judiciary considered, 581; resolutions agreed to, 581; motion to refer to committee, 581; remarks on reference, 581; resolutions referred, 583; bill from the Senate to repeal considered in House, 596; _note_, 596; the people have established three departments for the powers of government, 597; tenure by which the judges hold office, 597; the words "during good behavior" are a limitation on executive and legislative power, 597; examination of these words, 598; a subsequent legislature can repeal the acts of a previous one, examined, 598; any other construction leads to a concentration of executive and legislative power, 598; this is the spirit of innovation which has prostrated the old world, 599; expediency of the repeal examined, 599; comparison of the present and former system, 600; constitutionality of the measure examined, 600; delegated powers, 601; Judiciary is a check on the legislature, shown, 601; the judges are expounders of the constitution and laws, 602; they ought to be independent of the other branches of government, particularly the legislative, 602; concentration of power is the essence of tyranny, 602; as we advance to it, we recede from liberty, 602; what was the intention of the framers in introducing the words "good behavior"?, 602; origin of parties in this country fundamental, 603; manner of growth, 604; proceedings of the favorers of patronage, 604; the strict letter of the constitution now appealed to, 605; will the repeal of this law violate in any respect the salutary or practicable independence of the judges, secured by the constitution?, 605; the terms "independence of the judges" or "Judiciary" not found in the constitution, 605; relationship between the Executive and Judiciary Departments, 606; clauses of the constitution examined, 607, 608, 609; are not the judges more independent under this view than those of England?, 610; it is admitted Congress may increase or diminish the duties of judges, 610; preceding arguments for repeal examined in detail, and a defence of the late administration, 611, 612, 613, 614; inexpediency of the present bill shown by the expediency of the judicial law of last session, 617; the pre-existing system examined, and its defects and evils, as affected by the late act, considered, 617, 618, 619; changes made by the late law, 620, 621; when did the right of the Executive to recommend modifications of the Judiciary system cease, or of Congress to act?, 622; former practice with present theory compared, 622; doctrine of the Judiciary in Virginia, 623, 624; point conceded, 624; further debate, 625, 626; practice of North Carolina relative to instructions, 627; constitution of North Carolina, 627; interpretation of the words "during good behavior" there, 627; arguments against the bill examined, 628; further debate, 629, 630, 631; intention of the convention to make the judges independent of both executive and legislative power, so universally admitted at the time, 632; hence any intrusion or intermeddling by Congress is usurpation, 632; what avail are prohibitory clauses in the constitution, if there be no power to check Congress and the President?, 632; these regulations designed for the safety of the State Governments and the liberties of the people, 632; but the doctrine urged to-day will sweep away all barriers, 632; illustrations given by reference to the constitution, 632; expense of the national Judiciary, 633; reasons for passing the law of last session, 633; influence upon the elections, 633; vote at the election in the House, 634; _note_, 634; the professed friends of the people, 635; course of South Carolina on the Presidential election, 635, 636; Jefferson's views on slavery prevented his receiving the vote of South Carolina, 636; note, 636; what manifestation of the public will was there in reference to the late election for President?, 637; further debate, 637, 638; motion to postpone the bill lost, 638; bill passed, 655. _United States' Judges, Memorial of_, in Senate, report of committee on, 665; what is due to the supreme law of the land?, 666; memorialists ask if the law of last session deprived them of their office of judge, 666; a question not cognizable by the Senate, to whom it does not belong to interpret their own acts, 666; it should be speedily settled by the proper tribunals, 666; effect of such a decision, 667; committee should have confined themselves to the points of the question, 667; constitutional power of Senate reviewed, 667; resolution of committee lost, 668. Petitions of, 727; reference moved, 728; memorial does not embrace any point of inquiry, 728; it should be referred to Committee of the Whole, 728; the constitutional question already determined, 728; undoubtedly a constitutional question, 728; reference unnecessary, subject already fully discussed, 728; referred to Committee of the Whole, 729; discussion in committee, 729; question been settled as to right of depriving the judges of their office, but not the question as to their compensation, 729; resolutions offered, 729; a new doctrine advanced, that a judge is entitled to his compensation, after being deprived of his authority and his powers are transferred to another, 729; true question on the constitutionality of the law, 730; if the courts are abolished, are the officers abolished?, 730; would the Supreme Court in this case be an impartial tribunal?, 730; it would be improper to authorize the Supreme Court to decide upon the constitutionality of the law, 730; when there are no services, there can be no claim for salary, 730; memorial is a protest, and let it rest on the files of the House, 730; resolutions lost, 731. K _Kentucky_, vote for President, 62, 487. KITCHELL, AARON, Representative from New Jersey, 14, 429, 498; on relief to sufferers by fire at Savannah, 42; on petition of Hugh L. White, 51; on the petition of manumitted slaves, 60; on increase of duties on sugar, 71; on military appropriations, 98; on the case of Jonathan Robbins, 451. _See Index_, vol. 1. KITTERA, JOHN WILKES, Representative from Pennsylvania, 120, 191, 326, 429; on a direct tax on slaves, 56; on naval appropriations, 101, 105; presides in Committee of the Whole, 193, 194; on the limits of Georgia, 220; on the bill relative to the protection of commerce, 289; on abrogation of treaty with France, 313. _See Index_, vol. 1. KOSCIUSKO, General, claim of, 191; history of, 192; proceedings on, 192; accounts of, 193. L LAFAYETTE, GENERAL.--Resolution relative to, 108; negotiations to effect his release from imprisonment, 108; his services for this country, 108; propriety and duty of negotiations on the part of the Executive, 108; subject improper to be introduced to the House--President knows the will of the people, 109; no impropriety in it, 109; further debate, 110; question lost, 111; _note_, 111. _See Index_, vol. 1. _Lake Superior._--Copper lands and mines--resolution authorizing the purchase of copper lands, 456; report of committee, 472; resolution reported agreed to, 472. LANGDON, JOHN, Senator from New Hampshire, 3, 113, 165, 321, 399, 481. _See Index_, vol. 1. LATIMER, HENRY, Senator from Delaware, 3, 114, 165, 321, 400. _See Index_, vol. 1. LAURANCE, JOHN Senator from New York, 4, 114, 165, 321, 399; elected President _pro tem._ of Senate, 321. _See Index_, vol. 1. _Law of Retaliation._--_See Defensive Measures._ LEAR, TOBIAS, letter to President announcing death of Washington, 434. LEE, HENRY, Representative from Virginia, 432, 497; delivers an oration on death of Washington, 404; letter accepting thanks of House, 436; on petition of free blacks, 437; on the case of Jonathan Robbins, 450, 455; on mausoleum for Washington, 503, 504, 512, 513; on reporting the debates, 509; on jurisdiction over District of Columbia, 518, 524. LEE, SILAS, Representative from Massachusetts, 429, 497. LEIB, MICHAEL, Representative from Pennsylvania, 429, 497, 569, 693. LEONARD, GEORGE, Representative from Massachusetts, 57. _See Index_, vol. 1. _Library of Congress_, resolution for a committee to procure, 474; bill regulating the use of, considered, 578; discussion of details, 578. _Limitation, Acts of_, report on, 189; _note_ on, 190. LINCOLN, LEVI, Representative from Massachusetts, 528. LINN, JAMES, Representative from New Jersey, 429, 498. LISTON, ROBERT, note to Secretary of State, 445. LIVERMORE, SAMUEL, Senator from New Hampshire, 3, 113, 165, 321, 400, 481; chosen President of Senate _pro tem._, 400; on disputed Presidential elections, 406. LIVINGSTON, EDWARD, Representative from New York, 17, 120, 179, 334, 429, 522; on the address to the President, 29, 31; on a National University, 37; on military and naval appropriations, 107; on liberation of Lafayette, 108; on answer of House to President Adams' first message, 136, 141; on arming merchant vessels, 147; on tax on lawyers, 156; reports on petition of daughters of Count de Grasse, 192; on expenditure for the naval service, 196, 197; on diplomatic intercourse, 216; on relations with France, 241; on establishing the Navy Department, 251; on the sedition bill, 307, 318; on relations with France, 356, 357; on the capture of French vessels, 361, 363; on repeal of alien and sedition law, 384; on the law of retaliation, 385; proposes resolutions in case of Jonathan Robbins, 446; on the case of Jonathan Robbins, 448, 449, 451, 453, 457. _See Index_, vol. 1. LLOYD, JAMES, Senator from Maryland, 171, 323, 402; resigns seat in Senate, 484. LLOYD, THOMAS, proposes to report debates of House, 14. LOCKE, MATTHEW, Representative from North Carolina, 14, 121, 179, 326. LOGAN, GEORGE, Senator from Pennsylvania, 541, 661. _Louisiana, cession of, in the House_.--Resolution calling on the President for any documents relative to the cession of Louisiana to France, considered, 697; subject akin to one that had been discussed with closed doors, it should therefore be referred in the same manner, 698; nothing which ought to be kept secret involved in the transaction, 698; why refer the resolution calling for information to a committee? 698; if publicity will interfere with constitutional functions of the President, resolution should not be supported, 698; the cession is a public fact, 698; custom of the House should determine this fact, 698; no impropriety in this request, 699; widest publicity desirable where it will not prove injurious, 699; let the call prevail, 699; advantage of going into Committee of the Whole, 699; what is the object of those refusing information? 699; if proper we ought to have these documents, 699; this the first instance a resolution allowed to be important had been refused a reference, 700; object of reference is discussion with closed doors, 700; case of the British Treaty, 700; logic of the opposition, 700; what end is to be answered by committal, 700; case of British Treaty restated, 700; reference carried, 701; in committee--shall the doors be closed as heretofore ordered in respect to this subject, 701; discussed, 701, 702; resolutions in secret session, 702; resolutions for a call for papers again considered, 703; should not be referred to a secret committee, 703; motion has already been decided, 703; the President alludes to the subject as one which may require Legislative interposition, yet persists in refusing information, 703; why do we want information, but that we may have a more clear view of the general subject, 704; only two points connected with the subject in which documents could be required or secrecy necessary, 704; material connection between shutting the port of New Orleans and the cession of Louisiana--one has been ordered to be discussed with shut doors, how proper then to introduce the other in debate, 704; numerous reasons for opposing the resolution, 705; speech of Mr. Monroe in the Virginia Convention, 705; _note_, 705; who now are the friends of the West and the free navigation of the river? 708; the sentiments displayed in this proceeding a phenomenon in the history of regular governments, 708; a history of political parties unnecessary, 709; resolution lost, 709; further resolutions moved, 710; lost, 710; motion for call renewed, 713; confidential subjects have been decided, 713; information necessary to legislation, 713; no fact has been communicated in the message, 713; it conveys the suspicion that Spain has ceded to France indefinitely, 714; unwise in the cradle of negotiation to throw out insinuations that may disgust, 714; farther discussion, 715; what is the inference from previous proceedings of these gentlemen? they will not assert our rights because they have no confidence in the Executive, 715; objections to the resolution, 716; relations of the departments of Government, 717; it will offend foreign nations to agree to the resolutions, 718; further debate, resolution lost, 720; motion to discharge committee to whom was referred a motion respecting official information, 720; the practice has alarmingly increased to resist a call for information, 720; reasons given, 721. _Purchase of Louisiana_, resolutions, 721; report thereon, 721; _note_, 723. _Louisiana, purchase of, in Senate._--A bill making further provision for the expenses attending intercourse between the United States and foreign nations, considered, 671; read third time, 671; passed, 671; _note_, 6, 71. LOWNDES, THOMAS, Representative from South Carolina, 569, 694; on public printing, 573; relative to State balances, 594; on French spoliations, 640; on the circulation of gold coin, 695; _note_, 695; on the call for information relative to cession of Louisiana, 703. LYMAN, SAMUEL, Representative from Massachusetts, 14, 120, 179, 326, 429. _See Index_, vol. 1. LYMAN, WILLIAM, Representative from Massachusetts, 14; on the address to the President, 17, 19; on a National University, 36; on relief to sufferers by fire at Savannah, 40; on liberation of Lafayette, 110. _See Index_, vol. 1. LYON, MATTHEW, Representative from Vermont, 120, 179, 358, 429; on accompanying the House to deliver their answer to the President's message, 142; on exempting bank notes from stamp duty, 157; on additional duty on salt, 164; on printing the laws in the German language, 165; on address to the President, 182; attack on Roger Griswold, 205; letter of, relative to attack on Roger Griswold, 206; proceedings relative to his assault on Roger Griswold, 208; on treatment of alien enemies, 281. _Expulsion of_ from House.--Resolution proposed, 364; objection to an immediate vote, 364; record of the trial proves the facts, 365; power of the House in reference to expulsion, 366; acts committed out of the House, 366; the acts of Lyon, 366; something should have been shown in the character of Lyon so infamous as to render him unfit to sit in the House, 366; the charges against the member ought not to have been inquired into under the sedition law, 367; charges, 367; examination of them, 367; the member is re-elected by constituents having a full knowledge of the prosecution, 368; remarks of Lyon, 368; reply, 369; further discussion of the law and the case, 369, 370; an examination of the letter published, 371; the constitutionality of the law under which the member was tried and manner of trial, 372; resolution to expel lost, 373; on the medal to Captain Truxton, 472. LYON, MATTHEW, case of, _see Breach of Privilege_. M MACHIR, JAMES, Representative from Virginia, 120, 179, 326. MACLAY, SAMUEL, Representative from Pennsylvania, 14. _See Index_, vol. 1. MACON, NATHANIEL, Representative from North Carolina, 14, 121, 179, 326, 429, 497, 569, 693; on a National University, 34; on relief to sufferers by fire at Savannah, 41; on land for Canadian refugees, 45; on kidnapping negroes, 46; on the petition of manumitted slaves, 60; on the accommodation of the President, 89, 91; on address to the President, 182; on the Quakers' memorial, 184, 187; on stamp duties, 185; advocates weekly licenses to distillers, 194; on report relative to the Matthew Lyon affair, 207; on the limits of Georgia, 219; on a provisional army, 247; on establishing the Navy Department, 249; on presents to ministers by foreign courts, 262; on temporary direct tax, 270; on persons to be admitted to citizenship, 279; on bill relative to instructions to armed vessels, 287; on the sedition bill, 308, 317; on intercourse with France and St. Domingo, 343; on the capture of French vessels, 358; on the law of retaliation, 388; against mausoleum to Washington, 504, 514, 515; on reporting the debates, 510; on jurisdiction over District of Columbia, 525, 527; elected Speaker, 569; address to House, 569; on ratio of representation, 573; on Georgia limits, 577; on repeal of internal taxes, 580; relative to State balances, 596; in favor of repeal of Judiciary Establishment, 626; acknowledges thanks of House, 747. _See Index_, vol. 1. MADISON, JAMES, Representative from Virginia, 14; on a National University, 37; on liability of United States to a State for war expenses, 50; on a direct tax on land and slaves, 52; on the petition of manumitted slaves, 58; on liberation of Lafayette, 109. _See Index_, vol. 1. MALBONE, FRANCIS, Representative from Rhode Island, 14. _See Index_, vol. 1. MARSHALL, HUMPHREY, Senator from Kentucky, 3, 119, 165, 321, 399, 481. _See Index_, vol. 1. MARSHALL, JOHN, Representative from Virginia, 429; on breach of privilege, 429; announces death of Washington in House, 433; on the case of Jonathan Robbins, 453; his great speech, 457. MARTIN, ALEXANDER, Senator from North Carolina, 3, 114, 165, 323. _See Index_, vol. 1. _Maryland_, vote for President, 62, 487. MASON, JONATHAN, Senator from Massachusetts, 544, 661; on repeal of Judiciary Establishment, 548. MASON, STEVENS T., Senator from Virginia, 6, 114, 171, 323, 405, 481, 540, 661; on breach of privilege, 417; on the repeal of the Judiciary Establishment, 555; on the resolutions relative to the right of the United States to the free navigation of the Mississippi, 686. _See Index_, vol. 1. _Massachusetts_ vote for President, 62, 487. MATHERS, JAMES, Sergeant-at-Arms to Senate, 541; his extra allowance, 541. MATTHEWS, WILLIAM, Representative from Maryland, 120, 180, 330. MATTOON, EBENEZER, Representative from Massachusetts, 523, 569, 694. _Mausoleum_ for Washington, report of committee in Senate, 485. MCCLAY, SAMUEL, Senator from Pennsylvania, 14, 665. MCCLENACHAN, BLAIR, Representative from Pennsylvania, 120, 179, 326. MCDOWELL, JOSEPH, Representative from North Carolina, 129, 189; on answer of House to President Adams' first message, 140; on tax on lawyers, 156; on the bill to raise a provisional army, 246; on establishing the Navy Department, 250; on the naturalization laws, 256, 257; on presents to ministers by foreign courts, 261; moves to postpone bill for a provisional army, 275; on residence before citizenship, 277; on the bill relative to protection of commerce, 288; on intercourse with France, 292; on the sedition bill, 307; on instructions to armed vessels, 319; on intercourse with France, 346; on the bill relative to the capture of French vessels, 358; on the capture of French vessels, 359; on repeal of alien and sedition law, 384. _See Index_, vol. 1. MCHENRY, JAMES, letter to the House on the application of money drawn from the Treasury, 696. MCMILLAN, Delegate from North-west Territory, 498. _Mediterranean Powers_, report relative to affairs with, 79; _note_, 81; bill in relation to, 81. _Mediterranean Trade_, resolution calling for information relative to exports to the Mediterranean considered, 584; upon the report a calculation will be made of the expense of protection, 584; report must be defective, 584; this call may delay passage of an important bill, 585; resolution agreed to, 585; bill for the protection of commerce in Mediterranean considered, 586; amendment to give President power to issue letters of marque to affect Algiers, Tunis and Tripoli, 586; it seems to invite war, 586; their perfidiousness made this necessary, 586; other reasons urged, 586; not carried, 586. MERIWETHER, JAMES, Representative from Georgia, 693. _Message_, Washington to second session, fourth Congress, 15; of President John Adams to Congress, 114; confidential from President to Senate relative to the Dey of Algiers, 119; documents accompanying first message of John Adams to Congress, 121; of President Adams to second session, fifth Congress, 167; on the Creek Indians, 171; do. on French outrage, 171; do. on despatches from France, 172; on affairs with France, 173; from President Adams to Senate with Washington's letter accepting Lieutenant-Generalship, 177; to House relative to persons imprisoned for debt, 198; on French outrages, 207; on relations with France, 217, 304; from President Adams to third session of fifth Congress, 327; with documents relative to impressment of seamen, 333; on French affairs, 347; President Adams to first session, sixth Congress, 400; to Senate announcing death of Washington, 403; from House on death of Washington, 403; of President on sending resolutions to Mrs. Washington, 405; fourth of President Adams to second session, sixth Congress, 482; _note_, 482; first of President Jefferson, 541; from President on Georgia limits, 566; of President Jefferson, second session, seventh Congress, 662; on negotiation for acquisition of Louisiana, 664; with papers relative to removal of deposit at New Orleans, 694. _Military Academy_, bill for establishing, introduced and read, 470; motion to reject it, 470; do. negatived, 470; bill referred, 470; postponement carried, 476. _Military Interference_ in elections, resolution relative to, 446. MILLEDGE, JOHN, Representative from Georgia, 34, 121, 569; on relief to sufferers by fire at Savannah, 40; on military appropriations, 98; on the limits of Georgia, 217; moves amendment to bill relative to Mississippi Territory, 224; on Georgia limits, 576. _See Index_, vol. 1. _Mint_, motion to consider a repeal of act establishing, 695; present state of matters at the mint, 695; no advantage in the discussion at this time, 695; no member sees a gold coin, 695; two millions deposited in the bank, 695; _note_, 695; reasons adduced for its abolition are insufficient, 695. _Mint, Establishment of._--_See Index_, vol. 1. _Mississippi Question, or free navigation of the Mississippi_, considered in Senate, 668; conduct of Spanish officers at New Orleans, 668; the power must be given and the means voted to vindicate in a becoming manner the honor and interests of the country, 668; spoliations by Spanish armed vessels, 668; our right to free navigation of the Mississippi, 669; denied, 669; consequence, 669; should take the command of the river, 669; feelings of Western people, 669; resolutions, 670; _note_, 671; resolutions mark out a system of measures honorable to the country, 671; extract from our treaty with Spain, 671; notwithstanding the treaty, New Orleans has been wrested from us, 672; represented as the rash act of an officer and not of the Spanish Government, 672; measures adopted, 672; agency of Bonaparte concealed, 673; danger of French control over the navigation of the Mississippi, 673; what is the true state of facts? 674; reasons for an immediate appeal to arms, 674; substitute for the resolutions moved, 675; a constant eye has been kept on this important subject by our Government in its negotiations, 676; history of negotiations, 676; conduct of the Intendant at New Orleans is an atrocious infraction of the treaty, 676; was it authorized by Spain or not? 676; true state of Spanish aggression, 676; nature, character and tendency of the remedy proposed, 676; proposes to seize part of the Territory, 676; in this case the controversy must be decided by force, 676; resolution then a war resolution, 677; its justice and policy considered, 677; in vain to say the Western States will seize New Orleans, 678; an indignity has been offered the United States by the Spanish Government, by withdrawing the right of deposit at New Orleans in this manner, 678; the right of the free navigation of the Mississippi, and to a place of deposit indisputable, 678; to seize any place or places is an act of war, 679; should we be justified in this measure on the grounds of private or public justice or the law of nations, considered? 679; what evidence that the Intendant is not authorized by the Spanish or French Government? 680; our interests, our honor, our safety require the course pointed out by the resolutions, 680; the resolutions do not go far enough, 680; we wish for peace, how is it to be preserved? 681; what is the state of things? 681; effect of this cession on the United States in general point of view, 682; its effects on the various divisions of the country, 682; its consequences to other nations, 683; the first resolution intended to involve members opposed to hostile measures in a dilemma, 685; they call on us to declare the deprivation of our right of deposit to be hostile to our interests and our honor, 685; effects of negotiation heretofore, 686; it is said negotiation is not the course for us to pursue, 687; merits of the different propositions, 687; it is said Spain had no right to cede Louisiana to France, 687; extraordinary aspect of the Senate, 688; on what right could we hold the country against France? 689; we have nothing to fear from the colony of any European nation on this continent, 689; conduct of this House on former occasions, 690; our object to obtain prompt redress of injuries immediately affecting our Western brethren, 690; we are not for rushing into war, but for repelling insult, 691; members have pledged themselves to employ force on failure of negotiations, 691; resolutions passed, 692; proceedings in secret session relative to free navigation of Mississippi, 710. _Mississippi Territory._--_See Territories._ MITCHELL, SAMUEL L., Representative from New York, 569, 693; on protection against the Barbary powers, 571; in favor of resolution relative to state balances, 594; on French spoliations, 640, 645, 726, 732. MONROE, JAMES, speech in Virginia Convention relative to surrender of the navigation of the Mississippi, 705. _Monuments_ to Generals and to the captors of Andre, 712. MOORE, THOMAS, Representative from South Carolina, 11, 569, 693; on relief to sufferers by fire at Savannah, 42, 43; on a direct tax on slaves, 53. MORGAN, DANIEL, Representative from Virginia, 120, 179, 326. MORRIS, GOUVERNEUR, Senator from New York, 481, 545, 664; on the resolutions relative to the right of the United States to the free navigation of the Mississippi, 680. MORRIS, LEWIS R., Representative from Vermont, 155, 179, 429, 498, 570, 696. MORRIS, THOMAS, Representative from New York, 569, 694; on repeal of Judiciary Establishment, 549, 560; on the apportionment bill, 575; on the collection of internal revenue, 588; relative to state balances, 595; on memorial of United States Judges, 666; for the reading of the letter of McHenry, 697; on granting land-warrants to La Fayette, 743. MOTT, JAMES, Representative from New Jersey, 569, 693. MUHLENBERG, FREDERICK A., Representative from Pennsylvania, 14, 429, 497. _See Index_, vol. 1. MURRAY, WILLIAM VANS, Representative from Maryland, 14; on a national university, 38; on relief to sufferers by fire at Savannah, 42; on kidnapping negroes, 46, 47; on a direct tax on slaves, 53; on the purchase of a site for a navy yard, 67. _See Index_, vol. 1. N _National University._--Report on, considered, 34; the time has not arrived to incorporate a university, 35; if the House once enters on this subject, the responsibility will fall on it to keep it up, 35; the commissioners only ask to be incorporated, so as to receive legacies, 35; the President has already made a donation, 35; is it a proper step, 35; we are only asked to permit its encouragement, 35; better to ask this of Maryland, 36; improper time to decide upon a national university, 36; effects of the resolution, if adopted, 37; will we grant power and security to individuals to receive donations for this object, 37; negatived in committee, 38; further debate, 38; subject postponed, 39; vote on postponement of consideration of, 39; memorial of Samuel Blodget relative to, 712. _Naturalization Laws._--_Resolution to prolong term of residence_ before aliens shall be admitted as citizens, considered, 253; five years too short, 253; at least ten should be required, 253; high time to recover from the mistake of admitting foreigners to citizenship, 253; amendment offered that no alien, not at present a resident, shall be capable of holding any office under U. S., or voting, 254; civil rights might be extended in full to foreigners, but not political rights, 254; unnecessary they should take a part in government, 254; only persons born in a country should do it, 254; the form of the amendment examined, 254; resolution proposed as a substitute, excluding all aliens not citizens from holding any U. S. office, 254; House not authorized to enact this principle into a law, 255; it ought to be considered as a proposition to amend the constitution, 255; if the House had power to extend the term of residence, they could make it for life, 255; question made on amendment of previous resolution, 255; President and Senate always appoint such men as they think proper, 255; people can elect a foreign-born citizen to any State office, 255; no doubt of the constitutionality of restricting aliens, 255; what advantage to be derived from giving aliens office? 255; propriety of action on the subject, 256; amendment withdrawn and original resolution adopted, 256; resolution relative to removal of resident aliens whose Government is at war with this country, considered, 256; what shall be considered "at war?" 256; foreigners have been invited here, this resolution will unnecessarily distress their minds, 256; intriguing aliens should be removed, 256; a positive declaration of war should be required before aliens are sent from the country and our citizens abroad similarly exposed, 257; only dangerous persons should be sent away, 257; the resolution proposes to give the President power to remove aliens when the country from which they come _threatens_ invasion, 257; evil threatened at the present time, 257; commissions issued here by foreign ministers, 258; _note_, 258; this an essential feature of defence, about which Congress has been engaged during the session, 258; great number of French aliens in the country endeavoring to create divisions, 258; the same degree of hospitality is not due to French aliens and to alien friends, 258; moved to extend to _all_ alien residents, 258; look at the results of French emissaries in Venice, Switzerland, and Rome, 259; similar emissaries in this country, 259; views of the committee who reported the resolution, 259; further debate, 260; last motion withdrawn, 260; proposition to add the words, "between which and the United States shall exist a state of war," 260; debate thereon, 260; postponement carried, 261; consideration resumed, and subject referred, 272; amended resolution, 272. _Motion to require fourteen_ years' residence before admission to citizenship, 277; tend to discourage emigration, 277; carried, 277; discussion on the retrospection of the bill, 277; committee thought bill should pass in its present form, 278; amendments proposed, 278; also to except residents previous to 1795, 278; reason in favor of the amendment, 278; no exception should be made, 278; the character of the persons who have come here is such as to require the amendment, 279; it is a question of right or expediency; considered as the latter, the danger is apparent of permitting foreigners to become citizens as heretofore, 279; injustice to a great number of people to pass the bill without the amendment, 279; amendment passed, 280; negatived in the House, 280; bill ordered to a third reading, 280. _Alien Laws, petition for repeal_ of, 364; motion to refer, 364; part of the petition contains an atrocious libel against the courts and juries of the country, 365; this should not be referred, 365; this is the ground suggested by the greatest enemies of these laws, that the right of petitioning might next be restricted, 365; to object is to say we have the power of defining the nature of petitions, 365; further remarks on the character of the petition, 365; further petitions for repeal, 373; report of committee on petitions for repeal, 373; resolution that it is inexpedient to repeal alien law, considered, 373; number of petitioners, 373; objectionable clause of the alien law, 373; grounds of objection by petitioners, 373; objections examined, 374; report of committee examined, 375, 376, 377, 378; resolution carried, 378. _Naturalization Laws._--_See Index_, Vol. 1. _Naval Armament._--_See Appropriations_, naval. _Naval Captains_, bill for pay of, 357. _Naval and Marine_ officers, bill for relief of widows and orphans of, 566. _Naval Establishment_--Purchase of a site for a navy yard, considered, 66; at some future day we shall become a naval power; it is now economy to prepare for it, 66; expense of this business alarming, 66; if the thing is proper, two or three years can make very little difference, 66; a navy would never do any real good to this country, 66; this country depends wholly on commerce for revenue, 67; that commerce is now in jeopardy, and no substitute for revenue found, 67; the money thrown away on Algiers to buy a peace would have been much better expended in building ships, 67; want of a navy will have a similar effect on all our negotiations, 67; our live-oak timber is too rich a mine to be neglected, 67; they must provide for the protection of commerce, or give it up, 67; is the measure proper, and is it not best to postpone it for the present? 68; if a navy is necessary to protect commerce, it must be such a one as will vie with those of other nations, 69; who can show that commerce and a navy have gone hand in hand? 69; this country not equal to support a navy, 69; how can such a navy, be manned? 69; our peculiar situation affords means of protection, 69; our only mode of warfare against Europe is by putting our seamen on board of privateers, 69; _note_, 69. _Bill to establish Navy Department_ considered, 248; unnecessary, 248; one department sufficient for army and navy, 248; objections have been to increase the navy because of enormous expense arising from want of knowledge--this department will obviate this, 248; necessity for this establishment, 249; notwithstanding all resistance the establishment of a naval force must soon be seriously considered, 249; the necessity for the department examined, 249; a want of knowledge of naval affairs in the War Department is the occasion of this bill--this can be obviated, 249; economy requires the department, 250; this bill is founded on the idea of establishing a large naval power, 250; economy further considered, 250; not for the interest of the country to establish a naval power, 251; large debts exist with large navies, 251; every measure to increase the navy will have a bad effect, 251; further debate, 251; bill ordered to third reading, 252; passed, 252; _note_, 252. _Bill for augmentation of the Navy_ considered, 348; question of the propriety of building ships of the line, 348; reasons for building smaller ships of the line, 348; is it proper at this time to lay the foundation of a navy that might be able to give us weight with Europe? 348; expense of proposed navy, 348; reasons urged against a large navy, 349; the extent and advantages of our commerce entitle it to competent protection, 350; British navy contrasted with ours, 350; expense of a navy, 350; Jefferson's views, 351; means by which to raise the money needed, 351; usefulness of a naval establishment considered, 351; navy of Holland, 353; instruction to be drawn from this example, 354; propriety of a naval force for warring with Europe, 355; arguments on, examined, 355; no good reason for its establishment exists, 356; motion to strike out ships of the line lost, 356; _note_, 356. _Bill for fixing pay of Captains_ of ships, &c., 356; details, 357. _See Appropriations_, and _Index_, vol. 1. _Naval Peace Establishment_, bill for, passed House, 537. _Navy, Admirals_ in, _see Admirals in the Navy_. _Negroes, kidnapping of_, report on memorial of State of Delaware relative to kidnapping negroes and mulattoes considered, 45; this practice done by masters of vessels, 45; plan was to pass an act requiring masters of vessels to have a certificate of the number and situation of any on board, 45; laws in the several States fully adequate, 46; State laws being local do not reach the case, 46; design is to prevent selling free negroes as slaves and taking slaves to make them free, 46; many serious questions involved, 46; committee better rise as the measure is improper, 46; many instances of this practice had occurred, 46; it is that kind of business which, by the constitution, was to be left to the different States, 47; the House should not interfere with the States, 47; motion for the committee to rise carried, 47; motion to discharge committee carried, 47; motion to recommit to report by bill or otherwise, 47; propriety of sending it to committee doubtful, 47; postponement carried, 48. NEUFVILLE, JOHN DE, claim of widow of, 69; particulars of, 70. NEW, ANTHONY, Representative from Virginia, 14, 120, 179, 326, 429, 497, 569, 693; advocates weekly license to distillers, 194. _See Index_, vol. 1. _New Hampshire_, vote for President, 62, 487. _New Jersey_, vote for President, 62, 487. _Newspapers_, resolution of House relative to, 430; resolution of Senate for, 400. NEWTON, THOMAS, jr., Representative from Virginia, 569, 693. _New York_, vote for President, 62, 487. NICHOLAS, JOHN, Representative from Virginia, 120, 180, 429, 497; on the address to the President, 18, 28; on a National University, 35, 36; on kidnapping negroes, 47; on liability of United States to a State for war expenses, 51; on a direct tax on land and slaves, 52, 53, 54; on the purchase of a site for a navy yard, 66; on increase of duties on sugar, 72, 73; on increase of duties on salt, 74; on naval appropriation, 76, 77; on suability of the States, 86; on the accommodation of the President, 88, 90; on the military establishment, 96, 99; on naval appropriations, 99, 100, 102; on military and naval appropriations, 106; on liberation of La Fayette, 108; on answer of House to President Adams' first message, 125; on resolutions relative to defensive measures, 145; on a naval armament, 153, 154; on tax on lawyers, 155, 156; on exempting bank notes from stamp duty, 157; on composition with banks in lieu of a tax, 162; on additional duty on salt, 164; on the Quakers' memorial, 186; advocates weekly licenses to distillers, 194; on naval expenditure, 197; on foreign intercourse, 199, 203; on report relative to Matthew Lyon, 207, 208; on the case of Griswold and Lyon, 210, 211; on diplomatic intercourse, 216; on the limits of Georgia, 219, 223; on relations with France, 227; on the bill to raise a provisional army, 243; on the sedition bill, 307, 316; on intercourse with France and St. Domingo, 334, 335, 340; on increase of the navy, 354; on the capture of French vessels, 362; on the expulsion of Matthew Lyon, 366; on repeal of sedition law, 378; on breach of privilege, 418; on the case of Jonathan Robbins, 451, 453, 457; on the medal to Captain Truxton, 471; on the bill to prohibit carrying on the slave trade, 475; on reporting the debates, 502; on mausoleum to Washington, 503; on reporting the debates, 506, 510; on jurisdiction over the District of Columbia, 518, 520; on the right of the United States to the free navigation of the Mississippi, 688. _See Index_, vol. 1. NICHOLAS, WILSON CARY, Senator from Virginia, 405, 481, 540, 664. NICHOLSON, JACOB a manumitted slave, petition of, 57. NICHOLSON, JOSEPH H., Representative from Maryland, 429, 497, 569, 693; on the case of Jonathan Robbins, 454; relative to officers and crew of frigate Constellation, 470; on reporting the debates, 507; on protection against the Barbary powers, 571; on public printing, 573; on the Mediterranean trade, 584; on unauthorized purchase of navy yards, 657; on amendment to the bankrupt act, 724. NICHOLSON, JUPITER, a manumitted slave, petition of, 57. _North Carolina_, vote for President, 62, 487. NOTT, ABRAHAM, Representative from South Carolina, 429, 501; on mausoleum to Washington, 503. O _Oaths._--_See Index_, vol. 1. OGDEN, AARON, Senator from New Jersey, 489, 541, 661. _Ohio School Fund_, resolutions relative to, 742. _Ohio State Government._--Report of Select Committee on admission of North-western Territory as a State, 648; after one State is laid off, Congress is under an obligation to form the remainder into a State, 648; number of the population, 648; manner of dividing the territory, 648; further debate thereon, 649; report agreed to and bill ordered, 650; do. before the House, 651; amendment moved to embrace Eastern division, 651; rights of all the inhabitants equal--if one part formed into a State, all must be under the compact, 651; arguments from expediency, 651; objections urged, 651; amendment lost, 651; various amendments proposed, 652; bill ordered to be engrossed, 653; do. passed, 654. OLCOTT, SIMEON, Senator from New Hampshire, 541, 661; on the repeal of the Judiciary Establishment, 559. ORR, ALEXANDER D., Representative from Kentucky, 49. OTIS, HARRISON GRAY, Representative from Massachusetts, 120, 179, 326, 429, 498; on answer of House to President Adams' first message, 134, 141; on expatriation, 152; on exempting bank notes from stamp duty, 159, 160; on address to President, 182; on the case of Griswold and Lyon, 212; on the limits of Georgia, 220, 222; on relations with France, 231; on the bill to raise a provisional army, 243; on establishing the Navy Department, 249; proposes amendment to naturalization laws, 254, 255, 256, 257; on presents to ministers by foreign courts, 262; on opposition to a direct tax, 268; on bill relative to treatment of alien enemies, 283; on the bill relative to the protection of commerce, 289; on intercourse with France, 295; on abrogation of treaty with France, 314; on the sedition bill, 307, 316; on intercourse with France and St. Domingo, 335; on the law of retaliation, 387; on the case of Jonathan Robbins, 452; on petition of free blacks, 437; on reporting the debates, 502; on mausoleum to Washington, 503; on reporting the debates, 507; on jurisdiction over the District of Columbia, 519. P PAGE, JOHN, Representative from Virginia, 17; on relief to sufferers by fire at Savannah, 42; on a direct tax on slaves, 55. _See Index_, vol. 1. PAGE, ROBERT, Representative from Virginia, 431, 497. PAINE, ELIJAH, Senator from Vermont, 3, 118, 165, 321, 401, 485; on breach of privilege, 417. _See Index_, vol. 1. PARKER, ISAAC, Representative from Massachusetts, 179, 326; on the Quakers' memorial, 185. PARKER, JOSIAH, Representative from Virginia, 17, 129, 180, 380, 431, 498; on the address to the President, 18, 29; on the compensation of President and other officers, 61; on resolution to notify the Vice President of his election, 63; on compensation of President and other officers, 63; on naval appropriation, 77, 99, 102; on military and naval appropriations, 106; on defensive measures, 145; on the Quakers' memorial, 185; relative to General Kosciusko, 191; advocates weekly licenses to distillers, 194; on the case of Griswold and Lyon, 210; on third reading of the bill relative to protection of commerce, 291; on a marine corps, 292; on increase of the navy, 350; on the capture of French vessels, 360; reports a bill authorizing increase of marine corps, 373; on conduct of officers and crew of frigate Constellation, 470; on the medal to Captain Truxton, 471; on admirals in the navy, 473. _See Index_, vol. 1. PATTON, JOHN, Representative from Delaware, 14. _Pennsylvania_ insurgents, _see Index_, vol. 1. _Pennsylvania_, vote for President, 62, 487. PERKINS, ELIAS, Representative from Connecticut, 569, 693. _Petitions_ for repeal of alien and sedition law, 373. _Petitions, reception of_.--Petition of four negroes, manumitted by their master, and afterwards sold into slavery under the laws of North Carolina, and subsequently escaping and being arrested under the fugitive act in Philadelphia, considered, 57; they pray the House to modify the fugitive act so as not to affect persons of their description, 58; very proper to refer petition to a committee, 58; persons aggrieved have a sacred right to petition, 58; laws of North Carolina forbid emancipation, 58; men not free, 58; United States nothing to do with it, 58; if free by the laws of North Carolina, they should apply to those laws to establish their freedom--if slaves, the constitution gives them no hope of being heard here, 58; a committee could inquire into the facts, 58; every due respect should be paid to the petition, 59; former practice was to send the petition back, 59; they are slaves--a kind of property on which the House has no power to legislate, 59; cannot the House receive a petition without evidence that it is from a free man? 59; unjust to deprive them of the right of petitioning, 59; it is a judicial question, 59; by application to North Carolina justice would be done them, 60; they have received injury under a law of the United States, and have, therefore, a right to the attention of the Government, 60; receiving the petition negatived, 60. _Quakers, memorial_ of, 182; motion to read second time, 183; every Legislature should set their face against remonstrances complaining of what it is impossible to alter, 183; to read and commit is the regular way of getting rid of the difficulty, 183; no objection to commit if the committee will report the censure deserved, 183; no reason why the petition should not be dealt with in the ordinary way, 183; the practice of the House--what objection to it now? 184; _note_, 184; nature of the petition, 184; no authority over the subject, 184; Quakers war-makers, 184; _note_, 184; unconstitutional to ask the House to do what they had no power to do, 185; only object of petition to sow dissension, 185; nothing prayed for, 185; unnecessary to refer such a petition, 185; no objection in general principles to a reference of the petition, 185; contents of the petition, 185; previous treatment of abolition petitions, 185; to appear to be afraid of inquiring, will do more harm to slave property than a fair investigation, 186; reasons urged for the second reading, 186; the doors should be shut against any thing tending to produce such confusion as exists in West India Islands, 187; no ground of irritation in the question, 187; nothing unconstitutional be done, 187; the fact called for examination, 187; if petition is received and early reported on, it would stop the mouth of these people, 187; further debate, 187, 188; second reading carried, 188; referred to a select committee, 188; report of committee on Quakers' memorial, 209; remarks thereon, 209; memorialists have leave to withdraw, 209. _Petition of free blacks_ of the City and County of Philadelphia, considered, 436; outline of the petition, 437; reference moved, 437; any reference improper, 437; only two grievances noticed in the petition--fugitive act and slave trade, 437; a duty to grant relief so far as the House has power, 437; signers incapable of writing their names or reading the petition, 437; those who do not possess this property better leave its regulation to those who do, 437; so improper is it to consider this subject that some States would not have adopted the federal form of government if it had not been secured that Congress would never legislate on it, 438; no subject so likely to cause a division as this, 438; if an evil exists under any law, a committee should be appointed to examine it, 438; constitution put it out of the power of the House, 438; petition only asks amelioration of severities, 439; petition examined, 439; further debate, 440, 441; former treatment of petitions, 442; would gentlemen feel calm if measures were taken to destroy most of their property, 442; no danger from committing the petition, 443; further debate, 444; resolution relative to petition adopted, 444. _See Index_, vol. 1, _Slavery and Slave Trade_. _Philadelphia_, first session, 5th Congress, commenced at, 113. PICKERING, JOHN, impeached before the Senate by the House, 692. PICKERING, TIMOTHY, report of, as Secretary of State, 80; letter with papers in Jonathan Robbins' case, 444. PIERCE, JOSEPH, Representative from New Hampshire, 570. _Pilnitz, Treaty_ of, a forgery, 239. PINCKNEY, CHARLES, Senator from South Carolina, 324, 405; vote for, as President in 1796, 63; on disputed Presidential elections, 406; on breach of privilege, 409; on bill to amend act establishing Judiciary courts, 419; vote for, as President, 487. PINCKNEY, THOMAS, Representative from South Carolina, 180, 300; vote for, as President in 1796, 62; on answer to President's message, 181; relative to Gen. Kosciusko, 192; on foreign intercourse, 203; on relations with France, 232; letter relative to presents offered to him by courts in Europe, 253; on presents to Ministers by foreign courts, 269; on intercourse with France and St. Domingo, 342, 346; on the capture of French vessels, 360. PLATER, THOMAS, Representative from Maryland, 569, 693. PLATT JONAS, Representative from New York, 429, 497; on petition of free blacks, 440. PLUMER, WILLIAM, Senator from New Hampshire, 661. POLLOCK, OLIVER, bill reported for relief of, 207. _Post Office, franking privilege._--Motion to pay $4,500 on letters to and from certain officers of the army, 723; unnecessary, 723; Government ought to support this expense, 723; all franking wrong, 724; considerations in favor thereof, 724. _Post Office._--_See Index_, vol. 1. _Potomac Canal_, shares in, given to the President, 87; _note_, 37. POTTER, ELISHA R., Representative from Rhode Island, 34, 120; on a direct tax on personal property, 54; on exempting bank notes from stamp duty, 159. POWELL, LEVEN, Representative from Virginia, 429, 497. _Presents to Ministers._--Letter of Mr. Pinckney relative to presents offered to him by Spanish and British courts considered, 253; referred to a select committee, 253; resolution from the Senate granting leave to Mr. Pinckney to accept certain presents, 261; moved to concur, 261; if we allow presents to be received, we must prepare to give them, 261; if it should ever be allowed in consideration of public service, there never could be a better occasion, 261; object of the constitution is to oblige ministers to make known to the world the presents they receive, 261; this particular case considered, 261; policy dictates the propriety of rejecting the resolution, 261; object of the constitution to lock up every door to foreign influence, 262; if leave granted, a precedent established and a title will be tendered hereafter, 262; this will be the last application, if resolution rejected, 262; no grounds for apprehension, 262; practice under the confederation, 262; action in this case will fix future usage, 262; not necessary to accept them as a point of etiquette, 262; a dangerous principle as it opens an avenue to foreign influence, 263; a stop should be put to this business, 263; further debate--House refused to concur, 264; explanation and views of Mr. Pinckney, 269; reason of the House for refusal, 276. _Presents to a Minister's wife._--Letter from Col. Humphrey, 731; referred to a select committee, 732. _Presidency_, vacancy in, _see Index_, vol. 1. _President's election disputed in the Senate._--Resolution for the appointment of a committee to inquire what provisions should be made by law to decide &c., considered, 405; if any thing is done it must be by an amendment to the constitution, 406; dangerous practice to endeavor to amend the constitution by making laws for it, 406; Legislature has a right to make such provision as may be necessary, 406; questions to be considered with regard to _electors_, 406; do. 407; committee appointed, 407; bill reported, 407; postponed, 408. _In the House_, bill considered, 473; motion debated, 473; postponed, 478; message from Senate disagreeing to amendments, 479; House adhere, 479; bill lost, 479. PRITCHETT, THOMAS, a manumitted slave, petition of, 57. _Proceedings_ in Senate on ratification of convention with French Republic, 492. _Protection_ of Trade, _see Appropriations_, naval. _Public Lands._--_See Index_, vol. 1. _Public Printing._--Report in favor of appointing a public printer considered, 573; various objections urged, 573; reasons in favor stated, 573; lost, 573. Q _Quakers' Memorial._--_See Petitions._ R RANDOLPH, JOHN, Representative from Virginia, 429, 498, 569, 694; on petition of free blacks, 438; on the case of Jonathan Robbins, 450; on the medal to Captain Truxton, 471; moves $500 for furniture for President, 473; on a mausoleum to Washington, 516, 517; on jurisdiction over District of Columbia, 520; on public printing, 573; on the apportionment bill, 575; on library of Congress, 578; on reduction of the army, 578; on resolutions relative to Judiciary, 582; in favor of repeal of Judiciary Establishment, 621; against reading the letter of McHenry, 697; on motion to establish the mint, 695; on the call for papers relative to the cession of Louisiana, 698, 700, 713, 715, 717; on amendment to the bankrupt act, 724, 725; on petition of United States judges, 728, 729; against taking up resolution relative to French spoliations, 732; on jurisdiction over the District of Columbia, 738. _Ratio of representation, in the Senate_, bill to fix, considered, 550; moved to strike out 33,000 and insert 30,000, 550; unless amended 28,800 persons in Delaware will have no representative, 550; equity of the case, 550; other reasons urged, 551; motion to strike out lost, 551; moved to allow one member for every fraction of 27,000, 551; reasons for the motion, 551; lost, 551; bill passed, 551. _In the House._--Resolution to fix the ratio at 33,000, 572; various numbers proposed, 572; arguments in favor of a small and of a large ratio, 572; resolution carried, 573; move to strike out 33,000 and insert 30,000, 573; object to lessen the size of the districts that electors might know the elected, 573; smallest ratio preferred as a matter of principle, 573; Delaware an extreme case, 574; small States materially affected by the ratio in the bill, 574; views of the people, 574; experience of the States, 574; large representation relied on for safety and economy, 574; further debate, 575; heretical and improper to consider the House as the representative of the people, 575; the members of the House are the representatives of the States in proportion to their numbers, 575; the apportionment is among the States, not among the people, 575; further debate, 576; motion to strike out eight and insert nine as the representation from Maryland, 583; motion carried, 583. _See Index_, vol. 1. READ, JACOB, Senator from South Carolina, 3, 117, 165, 321, 399, 484; elected President _pro tem._ of the Senate, 166. READ, JOHN, Representative from Massachusetts, 14, 120, 179, 326, 429, 497; on increase of duties on sugar, 72; on breach of privilege, 418. READ, NATHAN, Representative from Massachusetts, 498, 569, 693. _Report_ on memorial of Anna de Neufville, 69; of Secretary of State, relative to affairs with Mediterranean powers, 79; on petition of widow of Hanging Maw, 97; on petition of daughters of Count de Grasse, 192; on the Matthew Lyon affair, 206; of Committee on Privileges on Griswold and Lyon case, 213; on petition of Stephen Cantrell, 242; on remonstrance of Georgia, 331; on petitions for repeal of alien and sedition law, 373; on measures in relation to breach of privilege, 422, 423; in Senate on mausoleum for Washington, 485; of committee of House on credentials, 500; of Committee on Unfinished Business, 522; on credentials of members, 530; of Committee on State Balances, 534; of committee on remonstrance of Georgia, 537; on the Wyoming controversy, 639; on State balances, 639; in Senate on memorial of United States Judges, 666; of committee on case of Van Ness, 725. _Resolution_ in Senate relative to joint meeting of two Houses to count votes for President, 6; of relief in lands to Canadian refugees, 44, 45; of Andrew Jackson on petition of Hugh L. White, 48; on direct taxes, 52; to notify Vice President Jefferson of his election, 63; relative to lands of live-oak and red timber, 69; relative to grant of lands to John C. Symmes, 70; relative to suability of the States, 88; relative to statements from War Department, 105; relative to Gen. Lafayette, 108; relative to defensive measures, 144; relative to printing the laws in the German language, 165; ordering newspapers for Senators, 166; authorizing Minister to Spain to receive presents, 173; relative to Gen. Kosciusko, 191; relative to attack of Matthew Lyon on Roger Griswold, 206; on Quakers' memorial, 209; relative to disorderly behavior of Roger Griswold and Matthew Lyon, 210; of Otis, relative to case of Griswold and Lyon, 212; relative to claim of Amy Dardin, 213; on relations with France, 225; that no alien shall ever be a citizen, 254; relative to direct taxes, 265; relative to naturalization, 272; relative to presents to ministers by foreign courts, 276; relative to relations with France, 296; giving bounty on capture of French armed vessels, 320; relative to remonstrance of Georgia, 348; for the expulsion of Matthew Lyon, 364; relative to prints of John Trumbull, 402; of Senate relative to death of Washington, 403; of House sent to Senate on death of Washington, 404; of House relative to commemoration of death of Washington, 405; in Senate on disputed Presidential elections, 405; of Senate to hear eulogium on Washington, 408; of Senate relative to breach of privilege, 408; relative to prosecution of William Duane, 427; relative to prints of John Trumbull, 431; to grant W. H. Harrison franking privilege, 433; in House relative to death of Washington, 434; of respect to memory of Washington, 435; relative to amendment to constitution, 446; in case of Jonathan Robbins, 447-452; relative to western lands, 448; relative to conduct of officers and crew of frigate Constellation, 470; for a medal to Capt. Truxton, 469-471; on Lake Superior lands, 457-472; relative to lands given in satisfaction of judgments, 473; on appropriation for holding Indian treaties, 477; relative to additional revenue, 477; relative to an additional army, 477; relative to the memory of Washington, 478; relative to counting votes for President, 486; of old Congress relative to statue to Washington, 512; relative to election of President, 522, 523; relative to the Judiciary, 581; relative to Lieut. Sterret, officers, and crew, 593; relative to imprisonment for debt, 593; on decease of Narsworthy Hunter, 640; relative to French spoliations, 642; relative to funeral expenses of members, 648; relative to free navigation of Mississippi, 670; in Senate relative to impeachment of John Pickering, 692; calling for papers relative to removal of deposit at New Orleans, 694; relative to J. P. Van Ness, 696; calling for information relative to the cession of Louisiana, 697; relative to cession of Louisiana, 702; relative to the navigation of the Mississippi, 710; do. considered in secret session, 710; for monuments to various officers and others, 712; for a monument to Gen. Gates, 725; relative to pay of late U. S. Judges, 731; relative to French spoliations, 732; on receding to the respective States jurisdiction over the District of Columbia, 736; relative to Ohio School Fund, 742. _Revenue_ statements, reports on, made, 214. _Revenue_, collection of; resolution for information relative to expense of collecting the revenue, &c., considered, 587; great objection to internal taxes; the expense of collection, 588; information sought, that it may be reduced, 588; expense of collecting other taxes, 588; the collection of some cost more than the collection of other taxes--discrimination required, 588; statements of the report of the Secretary of the Treasury, 589; further debate, 589; the intention seems to be to repeal the internal taxes, right or wrong, 589; further debate, 590; motion lost, 591. _Rhode Island._--Vote for President, 62, 487. _Rhode Island._--_See Index_, vol. 1. RICHARDS, JOHN, Representative from Pennsylvania, 14. ROBBINS, JONATHAN, case of, 444; papers in, 444; resolutions of Mr. Bayard, 446; do. of Mr. Livingston, 447; resolutions of Mr. Livingston taken up, 448; _note_, 448; statement of facts, 448; record of the court should be obtained, 448; kind of evidence to be adduced, 449; point to be gained, 449; motion to discharge committee, not sufficient evidence before them, 450; if interference of Executive improper, it did not proceed from improper motives, 450; claim of citizenship and protection by Robbins, 450; further debate relative to rising of the committee, 450, 451, 452; motion negatived, 452; resolutions calling on President for copy of the proceedings of the court considered, 452; is there any such evidence as will throw light on the case? 453; all the evidence necessary should be obtained, 453; extraordinary resolution--was the President clerk of the court? 453; the resolution must be negatived, and the debate on the merits go forward, if the end is to be reached this session, 453; motion will operate as a discharge of the committee, 454; further debate, 454; substitute moved requiring Speaker of the House to obtain the proceedings of the Court, 454; postponement moved, 454; object of the resolution, a charge upon the President and upon the District Judge, 454; conduct of both called into view, and the reprehensibleness defended on the testimony before the House, 455; what do the resolutions amount to, 455; question of great importance to the American people and to the reputation of the House, 455; doubtful if the President has acted with propriety or not, 455; particulars of the case, 455; further debate, 456; motion to postpone negatived, 456; adoption of the resolution negatived, 456; Mr. Livingston's resolutions considered, 457; record of Circuit Court of New Jersey, 457; change of conduct in the Executive, 457; Committee disagree with Mr. Livingston's resolutions, 457; will the House concur, considered, 457; conduct of the Executive cannot be justly charged with the errors imputed to it, 458; the case within the 27th article of the Treaty between U. S. and Great Britain, 458; was the murder committed within the jurisdiction of Great Britain, 458; extent of a nation's jurisdiction examined, 458; jurisdiction of a nation at sea, 459; illustrations, 459; piracy, 459, 460; application of the Treaty, 460; act of Congress considered, 461; does not comprehend case of murder committed in a foreign ship of war, 461; English cases cited, 462; indictments found at Trenton, 462; bearing on jurisdiction, 462; secondly, the case was a case for Executive not Judicial decision, 462; this point examined, 462, 463, 464, 465, 466; the President, in exercising this power and in performing the duty it enjoins, has not committed an unauthorized interference with Judicial decisions, 467; this point examined, 467, 468; House agree with Committee of the Whole in their disagreement to the resolutions, 469; committee discharged from further consideration, 469. ROSS, JAMES, Senator from Penn., 6, 119, 171, 322, 400, 485, 665; on disputed presidential elections, 406; on the Mississippi question, 668. _See Index_, vol. 1. _Rules for the Election of President_ reported, 529. RUTHERFORD, JOHN, Senator from New Jersey, 3, 117, 175. _See Index_, vol. 1. RUTHERFORD, ROBERT, Representative from Va., 14; on the address to the President, 28; on relief to sufferers by fire at Savannah, 41; on petition of Hugh L. White, 49; on liability of U. S. to a State for war expenses, 51; on the petition of manumitted slaves, 58; on compensation of President and other officers, 65; on increase of duties on sugar, 72; on increase of duties on salt, 75; on the accommodation of the President, 89, 91. _See Index_, vol. 1. RUTLEDGE, JOHN, Jr., Representative from South Carolina, 121, 179, 326, 429, 505, 694; on answer of House to President Adams' 1st message, 132; on exempting bank notes from stamp duties, 158; on answer to President's message, 181; on the Quakers' memorial, 183, 187; on naval expenditure, 198; on report on the Quakers' memorial, 209; on the limits of Georgia, 222; on relations with France, 228; on the bill to raise a provisional army, 246, 248; on the naturalization laws, 256; on presents to ministers by foreign courts, 263; on intercourse with France, 294; on the capture of French vessels, 362; on petition of free blacks, 437, 438, 440, 441, 442; on the case of Jonathan Robbins, 451, 454; on the bill against the slave-trade, 475, 476; on reporting the debates, 508; for a mausoleum to Washington, 514; on a bill relative to District of Columbia, 523; on repeal of internal taxes, 579; on the collection of internal revenue, 590; on reducing duties on imports, 591; on imprisonment for debt, 593; against repeal of Judiciary Establishment, 632; in favor of relief for French spoliations, 645; on a public discussion of cession of Louisiana, 698; on taking up the French spoliation subject, 733. S _Savannah, relief to._--Resolution to afford some relief to the sufferers by the late fire at Savannah, debated, 39; most calamitous event of the kind in United States--relief was granted to sufferers by fire at St. Domingo--if it was just in case of foreigners, it was equally so in the case of citizens, 40; if the unfortunate have any claim on the Government, none could have greater, 40; the city is a wide waste of ruin, 40; if relief is granted in this case, it should be also to New York and Charleston, and other places, 40; no occasion for insurance companies if Government makes good these losses, 40; the principle a bad one, 40; this is a distinct case, 40; the loss unexampled--only a contribution is asked, 40; it will not serve as a precedent, 40; motion to go into Committee of the Whole lost, 40; motion to discharge the committee made, 40; more respect due to the feelings of the sufferers than to dispose of the subject without discussion, 40; the Legislature of Pennsylvania had contributed, 40; $10,000 were given to sufferers in St. Domingo, 40; relief granted to the daughters of Count de Grasse, 41; too tenacious about approaching the treasury, 41; duty of Government to relieve such distress, 41; what would $30,000 be when divided among all the people of the Union, 41; motion to go into Committee of the Whole carried, 41; neither the act for relief to sufferers in St. Domingo, nor to the daughters of Count de Grasse, in point, 41; let gentlemen put their finger on that part of the constitution which gave the House power to grant relief, 41; if the United States become underwriters for the whole Union, where shall the line be drawn? 41; the constitution does not authorize any such grant, 41; our duty to grant relief from humanity and from policy, 41; no difference between the Constitution of the United States and the Constitution of Pennsylvania, yet the House of the latter had voted unanimously, 42; members, as individuals, can subscribe, but it is not constitutional to afford relief from the treasury, 42; if the principle is adopted it should be general--every sufferer has an equal claim, 42; motion to add Lexington to Savannah, 42; the House cannot undertake to make good individual misfortunes, 42; but the line is distinct between individual and national, and this is a national calamity, 42; Savannah and Lexington should not be united, 43; the former is an important place, 43; Lexington had not asked for relief, 43; our duty to pay claims of distressed soldiers first, 43; this amendment designed to defeat a laudable object, 43; this case a sharp conflict between humanity and the constitution, 43; amendment lost, 43; the greatness of the calamity is admitted and the disposition to relieve entire--a written constitution, however, prescribes the manner in which money shall be drawn from the treasury, yet it is impossible to obtain absolute directions in every case, 43; the objects are specified in the eighth section, yet many laws have passed not exactly specified, 43; the constitution cannot be administered under so rigorous and mechanical a construction, 43; the principle is the thing aimed at for establishment, 44; it is not what generosity and humanity require, but what the constitution and duty require, 44; disagreed to in committee, 44. SCHUREMAN, JAMES, Representative from New Jersey, 121, 180, 326; Senator from New Jersey, 400, 481; resigns seat in Senate, 487. _See Index_, vol. 1. _Seat of Government_, resolution relative to proper measures to be adopted preparatory to removal of, 470; bill to make further progress for removal and accommodation of the Government considered, 472; motion to fill blanks for expenses, 473. _See Index_, vol. 1. SEDGWICK, THEODORE, Senator from Massachusetts, 5, 114, 171; elected President _pro tem._ of Senate, 173; Representative from Massachusetts, 429, 497; elected Speaker, 429; speech, 429; acknowledges thanks of House, 538. _See Index_, vol. 1. _Seditious practices_, bill for restraint of, 295; details of do., 296; bill for the punishment of certain crimes against the United States considered, 305; its outlines, 305; motion to reject it, 305; necessity of the law, 305; extensive combinations exist, 306; freedom of the press an example, 306; effects of such liberty in France, 306; true meaning of liberty of the press, 306; its extent in this country, 307; it is striking at the root of a republican government to restrict the use of speaking and writing, 307; features of the bill, 307; the bill in direct opposition to the constitution, 308; operation of such laws, 308; does the situation of the country require any law of this kind, 308; the bill has two objects--to punish conspiracies and calumnies against the Government, 309; question on rejection of the bill lost, 310; question on its passage, 316; not within the powers of the House to act on this subject, 316; consider its effects, 316; had the constitution cognizance of these offences, and had its amendments taken that away? 317; this is the commencement of a system which may be extended to religious establishments, 317; prosecutions for libel cannot take place under general Government, 318; further debate, 318; bill passed, 319. _Resolution that it is inexpedient_ to repeal the sedition law considered, 378; objectionable clause, 378; the constitutional argument in relation thereto, 379; power of Congress over the press, 379; is it proper for Congress to possess the power claimed for it, 380; arguments in support of it examined, 381, 382, 383, 384; resolution carried, 384; question that the bill for repeal of part be engrossed, 535; grounds upon which the original bill was passed, 535; experience of the last two years, 535; further remarks, 536; engrossment refused, 536. _Senate._--Reply to the valedictory of John Adams as Vice President, 9; special session at inauguration of John Adams, 10; meets the House to count votes for President, 62; answer to President Adams' first message, 117; adjournment of, at 1st session, 5th Congress, 119; answer to President's message, 2d session, 5th Congress, 169; Legislative session adjourned, 175; Executive session, 175; adjourned, 178; answer to President's message at 3d session, 5th Congress, 322; form of warrant of, to be issued for apprehension of William Duane, 426; adjournment 1st session, 6th Congress, 427; message to House on eulogium to Washington, 447; answer to President's message 2d session, 6th Congress, 483; answer to address of Jefferson on retiring from Vice Presidency, 488; special session convened March 4, 1801, 489; secret session to ratify convention with French Republic, 492; adjourns 1st session, 7th Congress, 569. SEWALL, SAMUEL, Representative from Massachusetts, 15, 120, 180, 326, 429; on expatriation, 149, 150, 152; on tax on lawyers, 156; on exempting bank notes from stamp duty, 161; on the Quakers' memorial, 184; against weekly licenses to distillers, 194; on naval expenditure, 197; on breach of privilege, 205, 208; on the case of Griswold and Lyon, 212; on relations with France, 228; on a provisional army, 243; on establishing the navy department, 249; on the naturalization laws, 253, 256, 259; on a provisional army, 275; on the persons to be excluded from citizenship, 278, 279; on bill relative to treatment of alien enemies, 281, 282, 283; on instructions to armed vessels, 286; on a marine corps, 292; on intercourse with France, 293; on the abrogation of the treaty with France, 310, 312. SHEAFE, JAMES, Senator from New Hampshire, 544. SHEPARD, WILLIAM, Representative from Massachusetts, 120, 179, 326, 429, 497, 569, 693; on military appropriations, 252; on the bill relative to the protection of commerce, 288. SHERBURNE, JOHN S., Representative from New Hampshire, 14; on the address to the President, 20; on the accommodation of the President, 92. _See Index_, vol. 1. SINNICKSON, THOMAS, Representative from New Jersey, 121, 179, 329. _See Index_, vol. 1. SITGREAVES, SAMUEL, Representative from Pennsylvania, 14, 120, 180; on the address to the President, 17, 24, 31; on land for Canadian refugees, 45; on kidnapping negroes, 47; on the petition of manumitted slaves, 58; on the accommodation of the President, 88, 89, 90; on naval appropriations, 99, 100, 104; on liberation of Lafayette, 109; on answer of House to President Adams' first message, 132, 140; on expatriation, 150, 152; on tax on lawyers, 156; on exempting bank notes from stamp duty, 158, 160; on foreign intercourse, 201; on the case of Griswold and Lyon, 211, 212, 214; on relations with France, 225; on the naturalization laws, 256, 258, 260; on a new census for a direct tax, 265; on admission of aliens to citizenship, 279; on letters of marque, 299; on the abrogation of the treaty with France, 310, 311. _See Index_, vol. 1. _Slave Act_, Mississippi, for bringing slaves into, 427. _Slavery, prohibiting_ it in a Territory, _see Territories_. _Slavery, prohibition_ of, in a Territory, debate on, 217. _Slave Trade, &c._, bill from Senate to prohibit carrying on, considered, 474; manner of the passage of the former act, 474; conveniences of the commerce, 475; further debate, 475; most defective bill, 475; motion to refer to a select committee, 476; too late in the session, 476; the New England States should enjoy the profit of this traffic as well as the English, 476; present law does not stop the trade, 476; its extent, 476; bill committed, 476; bill passed, 477. _Slavery and Slave Trade._--_See Index_, vol. 1. _Slaves emancipated_ from West Indies, memorial respecting, 725. SKINNER, THOMPSON J., Representative from Massachusetts, 57, 182. SMILIE, JOHN, Representative from Pennsylvania, 429, 497, 569, 693; on petition of free blacks, 437; against a mausoleum to Washington, 513; on bill relative to District of Columbia, 523, 524, 526; on the apportionment bill, 574; on repeal of internal taxes, 580; on imprisonment for debt, 593; on call for papers relative to cession of Louisiana, 699; on amendment to the Bankrupt Act, 724; on compensation to the ex-United States judges 730; on taking up the French spoliation subject, 788; on jurisdiction over the District of Columbia, 736; on jurisdiction over the District of Columbia, 738. _See Index_, vol. 1. SMITH, DANIEL, Senator from Tennessee, 321. SMITH, ISAAC, Representative from New Jersey, 14; on kidnapping negroes, 46. SMITH, ISRAEL, Representative from Vermont, 14, 569, 694. SMITH, JEREMIAH, Representative from New Hampshire, 14, 121; on the accommodation of the President, 91; on a direct tax on slaves, 53. SMITH, JOHN, Representative from New York, 497, 569, 693. SMITH, JOHN, Representative from Virginia, 569, 693. SMITH, JOHN COTTON, Representative from Connecticut, 497, 569, 693; on a mausoleum to Washington, 516. SMITH, JOSIAH, Representative from Massachusetts, 569, 693. SMITH, NATHANIEL, Representative from Connecticut, 14, 120, 179, 326; on naval appropriations, 78; on expatriation, 151; on foreign intercourse, 203; on relations with France, 231; on the naturalization laws, 256; on a provisional army, 274; on bill relative to treatment of alien enemies, 281. SMITH, SAMUEL, Representative from Maryland, 14, 135, 180, 326, 569, 693, 429, 497; on a direct tax on slaves, 54; on increase of duties on sugar, 73, 74; on _tacking_ bills, 77; on indirect taxes, 84; on arming merchant vessels, 147, 148; on relations with France, 241; on a provisional army, 247; on establishing the Navy Department, 249; on the naturalization laws, 254; on temporary direct tax, 271; on direct taxes, 303; on abrogation of treaty with France, 313; on intercourse with France, 320; on intercourse With France and St. Domingo, 334, 339; on the law of retaliation, 388; on reporting the debates, 510; on protection against the Barbary powers, 571; on the apportionment bill, 576; on the Mediterranean trade, 584; on French spoliations, 640, 647; on call for papers relative to cession of Louisiana, 698, 700, 715; on amendment to the Bankrupt Act, 725. _See Index_, vol. 1. SMITH, SAMUEL H., memorial to House relative to reporting the debates, 505; letter to Senate respecting reports of their proceedings, 545. SMITH, WILLIAM, Representative from South Carolina, 14, 121, 179, 326; on address to the President, 17, 18, 19, 20, 21, 25; on relief to sufferers by fire at Savannah, 40, 41; on kidnapping negroes, 46, 47; on liability of United States to a State for war expenses, 50; on printing expenditure, 57; on the petition of manumitted slaves, 59, 60; on the purchase of a site for a navy yard, 66; on increase of duties, 71; on naval appropriation, 76, 78, 79; on indirect taxes, 83; on military and naval appropriations, 94; on the military establishment, 96, 97, 98; on naval appropriations, 99, 101, 104; on military and naval appropriations, 107; on liberation of Lafayette, 109; answer of House to President Adams' 1st message, 127, 139, 141; offered resolutions relative to defensive measures, 144, 145; on resolutions relative to defensive measures, 146; to provide further naval force, 148, 149; on expatriation, 150, 151, 152; on tax on lawyers, 156; on exempting bank notes from stamp duty, 157, 159, 161; on duty on stamps, 162; on additional duty on salt, 163; appointed Minister to Portugal, 180. _See Index_, vol. 1. SOUTHARD, HENRY, Representative from New Jersey, 569, 693; against resolution relative to extinguishing State balances, 596; to postpone resolution relative to the mint, 695; on jurisdiction over the District of Columbia, 741. _South Carolina._--Vote for President, 62, 487; militia, vindication of, 273. SPAIGHT, RICHARD DOBBS, Representative from North Carolina, 328, 497; on intercourse with France, 345. SPRAGUE, PELEG, Representative from New Hampshire, 191, 326; on intercourse with France, 346. SPRIGG, RICHARD, JUNR., Representative from Maryland, 14, 120, 179, 569; on a National University, 36, 38; on relief to sufferers by fire at Savannah, 41; on compensation of President and other officers, 64; on relations with France, 225, 226. SPRIGG, THOMAS, Representative from Maryland, 60. _See Index_, vol. 1. STANFORD, RICHARD, Representative from North Carolina, 121, 179, 326, 429, 497, 569, 693. STANLEY, JOHN, Representative from North Carolina, 569, 693; against repeal of Judiciary Establishment, 597; on the reading the letter of James McHenry, 696. STANTON, JOSEPH, JUNR., Representative from Rhode Island, 569, 693. _State Balances_, report of committee on 534; resolution for a committee to inquire into expediency of extinguishing certain balances due from States, &c., 594; debate thereon, 594, 595, 596; motion lost, 596; report of committee, 639; bill to extinguish claims of United States against certain States considered, 640; some of the States believe they were wronged in the settlement made, 640; rule adopted for apportioning the expenses of the war considered, 640; the original contract, 640; effect of adopting an enumeration of inhabitants made seven or eight years after the war, 641; the rule unjust and unequal, 641; what has New York done? 641; further debate, 642; bill ordered to be engrossed, 642; bill postponed, 647. _Stenographer_ to the Senate, admission of, 545; to the House, debate on, 583, 584. STERRET, LIEUT., his officers and crew, 592. STEWART, JOHN, Representative from Pennsylvania, 528, 569, 693. STOCKTON, RICHARD, Senator from New Jersey, 3, 117, 165, 321. STODDERT, BENJAMIN, letter of to commanders of armed vessels, 333. STONE, DAVID, Representative from North Carolina, 429, 498, 545, 664; on the repeal of the Judiciary Establishment, 558. STRATTON, JOHN, Representative from Virginia, 569, 696. STRUDWICK, WILLIAM, Representative from North Carolina, 17. _Suability of States._--On report authorizing the President to make inquiry if certain States adopted proposed amendment to constitution on suability of States, 86; question whether eleven States ratifying the ten amendments in 1791, should be considered three-fourths of fourteen, or whether a division of States could be made? 86; the fourth part of fourteen is three and a half, if a State cannot be divided, then four States must be taken instead of three and a half as one-fourth of fourteen, 87; eleven States have ratified the amendments, but are not twelve of the fourteen required, 87; discussion of the subject, 87, 88. SUMTER, THOMAS, Representative from South Carolina, 121, 188, 429, 497; Senator from South Carolina, 545, 569, 661; vindication of South Carolina militia, 273. SWANWICK, JOHN, Representative from Pennsylvania, 14, 120, 179; on the address to the President, 20, 24, 26; on kidnapping negroes, 45, 46, 47; on the petition of manumitted slaves, 58; on the purchase of a site for a navy yard, 66; on increase of duties on sugar, 72, 73; on naval appropriations, 76, 77, 99, 100, 103; on liberation of Lafayette, 108; on answer of House to President Adams' 1st message, 135; on defensive measures, 144, 147; on a naval armament, 154; moves ten dollars duty on attorney's licenses, 155; on exempting bank notes from stamp duty, 159; on the Quakers' memorial, 183. _See Index_, vol. 1. SWIFT, ZEPHANIAH, Representative from Connecticut, 14. _See Index_, vol. 1. SYMMES, JOHN C.--Contract for land, 70; particulars of his case, 81; case of, 567. T TALIAFERRO, BENJAMIN, Representative from Georgia, 429, 497. TALIAFERRO, JOHN, Representative from Virginia, 569, 694. TALLEYRAND, letter to American Minister in Paris, 304. TALLMADGE, BENJAMIN, Representative from Connecticut, 569, 693. TATTNALL, JOSIAH, Senator from Georgia, 6, 114, 171, 323. _Taxes, direct and indirect_, proposition for a tax on land and on slaves, 52; should be separated, 52; associated together in order to do justice, and conform to the established usage of a large tract of country where one tax without the other was objectionable, 52; the resolution for a tax on land carried, 52. _Direct tax on slaves considered_, 52; reason for bringing this species of personal property under view whilst all other personal property unnoticed, 52; slaves are laborers--not right to vote to tax laborers, 53; a tax on slaves would lighten the tax on land in the Southern States--would the tax on land be equal? 53; a direct tax should be equal as possible, 53; a tax on slaves the most productive tax in the Southern States, 54; exact equality impossible, 54; personal property in the Southern States should not bear a part of the burden whilst exempted elsewhere, 54; the objections can be completely obviated, 54; enumeration of slaves adds to the expense, 55; propriety of taxing personal property in one State and not in another, 55; the South is ready to pay the tax on slaves, 55; those who oppose the tax on slaves oppose all direct taxes, 56; motion to tax slaves carried, 56; _note_, 56; income and expenditure considered, 82; doubtful if a majority of the country in favor of the measure, 82; no deficiency in the revenue at present to make additional taxes necessary, 82; great argument for direct taxes is the uncertainty of a revenue from commerce, 82; receipts of 1797, 83; expenses of 1798, 83; receipts and expenditures of 1797, 83; for a sufficiency of revenue for 1798 direct taxes required, 84; a plan for direct taxes should be formed in case of extremity, 84; revenue for 1797, 84; estimated expenses for 1797, 85. _Bill for Stamp Duties_, 149; do. considered, 155; moved to add certificates of naturalization, 155; naturalized persons cannot refuse to pay a small tax for the right of citizenship, 155; tax would fall heavy on persons who came here to live by their labor, 155; amendment carried, 155. _Moved to tax lawyers' licenses_ $10, 155; carried, 155; moved to extend the tax to lawyers in State, as well as United States courts, 155; lawyers in some States already highly taxed, 155; if a tax of this kind is right, it might be extended to any other officer of State Governments, 156; not unconstitutional, 156; State lawyers a fair object for taxation--motion withdrawn, 156. _Moved to tax deeds of conveyance_, 156; this would clash with State jurisdiction, 156; the tax a good and profitable one, 156; interferes with State Governments, 156; further debated, 156; motion lost, 157. _Clause exempting bank-notes_, moved to strike out, 157; all notes should be placed on the same footing, 157; subject too important and intricate for this session, 157; object is to tax the right an individual has of transferring his property and the evidences of it, 157; no objection to the principle, but to the convenience of the thing, 157; it is said, do not meddle with corporations, 157; it cannot be proved that stamping bank notes will embarrass their circulation, 158; motion essentially just and right, 158; operation of the tax considered, 158; objections considered, 158; foreign banks commute with their governments, 159; the introduction of this principle will destroy the bill, 159; analogy between private notes and bank notes? 159; great difficulties attend its operation, 159; no danger of a run on a bank, 159; a beginning should be made, 160; not the intention of opponents to screen the moneyed interest, 160; how shall the tax be arranged, 160; commutation can be made, 160; amount of the tax less than one per cent., 161; difference between bank and individual notes, 161; an estimate showing the operation of the tax on banks, 161; further debate, 162; bill passed, 162; _note_, 162. _Duties on Distilled Spirits_, and on stills under debate, 193; proposition to allow to distillers weekly licenses, 194; designed to accommodate distillers from fruit, 194; distillers from fruit pay less duty than distillers from grain, 194; this proposition will give them an unfair advantage, 194; other objections in detail, 194; most distillers of peach-brandy now excluded under present law from distilling early fruit, 194; reason in favor at length, 194; capacity of peach stills, 195; motion carried, 195; present law on entry of stills, 195; four cents per gallon on weekly licenses adopted, 195; bill of Senate referred to a select committee, 302; resolution to inquire into the expediency of repealing laws laying duties on stills, distilled spirits, &c., considered, 579; time to commence proceedings on this subject, 579; it reduces the revenue, 579; reasons for referring the subject stated, 579; other subjects to be decided before this should be, 579; motion seeks information, 580; should be taken up at once, 580; President said the taxes might be dispensed with, if expenses were reduced, 580; information needed, 580; further debate, 580, 581; reference carried, 581. _Resolution to raise additional revenue annually_ by tax on land, houses, and slaves, to be apportioned according to the last census, considered in committee, 265; moved to strike out last census, 265; proper to have new census before the tax was assessed, 265; great inconvenience thereby incurred, 265; debate upon the census for taxation, 265; on report to the House moved to strike out "annually," 266; the tax not wanted for permanent revenue, but to meet present exigencies, 266; examination of present revenue, 266; the present revenues are equal to the expenditures, including redemption of public debt, except in case of war, 267; imposts and tonnage yielded a million more than the estimate, 267; arguments are presented as if a state of profound peace prevailed, and the defences of the country of no importance, 267; course of members on this subject, 268; censure of the House by members, 268; debate adjourned, 269; motion to strike out "annually" withdrawn, and limitation moved, 270; if laid for a number of years, the tax will be more unpopular, 271; it depends on a contingency whether the tax will be wanted or not, 271; it is a new tax, unsatisfactory to some parts, and should be of short duration, 271; no question about the propriety of levying a direct tax--only difference related to time of operation, 271; fears of the member from Pennsylvania, 272; two reasons against striking out the word "annually," 272; amendment lost, 272; word "annually" struck out, 272; bill providing for the valuation of houses and lands and enumeration of slaves read a third time, 302; the tax will bear hard on Kentucky, money is so scarce there, 302; such is the case of Tennessee, 302; both States have many advantages in respect to this tax, 302; the money was necessary, and the law as good as it well could be made, 308; loans and taxes the only resource, 303; no other objects so suitable for taxation, 303; fears respecting the ability of Kentucky and Tennessee not be realized, 303; tax not just and equal, 304; every species of property should be taxed, 304; bill passed, 304; bill to amend act for laying and collecting direct tax considered, 586; repeals clause for redemption of land sold for unpaid taxes, 586; this clause inoperative on account of its expense, 586; will be a hardship to non-residents, 587; non-payment had arisen in Southern States from a want of collectors, 587; committee rose, 587. TAZEWELL, HENRY, Senator from Virginia, 5, 117, 323; decease of, 344. _See Index_, vol. 1. TAZEWELL, LYTTLETON W., Representative from Virginia, 498. _Tennessee_, vote for President, 62, 487; admission of, _see Index_, vol. 1. TENNEY, SAMUEL, Representative from New Hampshire, 505, 569, 693. _Territories._--Subject of fixing the limits of Georgia, and erecting the Mississippi territory considered, 217; amendment proposed, "after the consent of the Legislature of Georgia shall have been obtained," 217; claim of the United States to this territory examined, 217; to proceed without consent of Georgia unconstitutional, 218; United States possess the right, 218; who is the judge? 218; amendment will defeat the bill, 218; shall the territory remain defenceless? 218; question of right examined, 218; point of right be settled hereafter, 218; terms required by Georgia, 219; proposed measure absolutely necessary for the people of that territory, 219; arguments so far do not show the right of the United States, but only the convenience of the measure, 219; advantages of the measure to Georgia as a protection against the Indians, 219; most proper that the amendment should be adopted, 219; the only reason for the amendment is, that if the bill pass without it, offence will be given to Georgia, 220; neither party has governed the territory, and Georgia cannot take offence in we hold it till the dispute is settled, 220; particulars relative to the territory, 220; Georgia always disposed to cede, 221; further discussion, 221; amendment lost, 221. _Clause providing that slavery shall not be forbidden_, motion to strike out, 221; clause very proper in the North-western Territory, but very improper in the Mississippi Territory, 221; it would banish all the settlers, and exclude those intending to go there, 221; Congress should so far respect the rights of humanity as not to legalize slavery any further than it now exists, 222; is it proper on every occasion to bring forward the Southern States in an odious light? 222; an immediate insurrection will take place if this is adopted, 222; the motion will not be withdrawn, 222; the tendency of this motion is not really to further the rights of man, 223; it is a serious attack on the property of the country, 223; the amendment should not be rejected on the ground of jurisdiction, 223; only objection to the amendment is with regard to the people settled there, 223; interest of the United States to reject the amendment, 223; spreading the blacks over the country, 224; question negatived, 224; _note_, 224. _Report on the credentials_ of the Delegate from the Mississippi Territory, 576; Georgia has the right to the soil, and the laws of Congress for the government of the Territory are void, 576; the Delegate has no right to a seat, 576; no further proceedings should take place till the dispute is settled, 576; the only question is whether the member is duly chosen, 576; wait till the dispute is settled, 577; let the report lie on the table, and the member keep his seat according to former practice, 577; sufficient facts to decide the case without prejudicing the claims of Georgia, 577; report agreed to, 578. THATCHER, GEORGE, Representative from Massachusetts, 14, 120, 179, 326, 429, 498, 693; on the address to the President, 20; on the petition of manumitted slaves, 57, 59; on answer to President Adams' first message, 124, 140; on the Quakers' memorial, 183, 187; on breach of privilege, 208; on report on Quakers' memorial, 209; on the case of Griswold and Lyon, 210, 211; on the limits of Georgia, 221, 222, 223, 224; on presents to ministers by foreign courts, 263; on petition of free blacks, 438, 440, 442, 443; on reporting the debates, 509. _See Index_, vol. 1. THOMAS, DAVID, Representative from New York, 569, 693; in favor of a bill to extinguish State balances, 640. THOMAS, JOHN CHEW, Representative from Maryland, 429, 497. THOMAS, RICHARD, Representative from Pennsylvania, 14, 120, 179, 326, 429, 497. THOMPSON, JOHN, Representative from New York, 429, 497. THOMPSON, MARK, Representative from New Jersey, 14, 120, 180, 329. _See Index_, vol. 1. THOMPSON, PHILIP R., Representative from Virginia, 569, 693. TICHENOR, ISAAC, Senator from Vermont, 3, 113. TILLINGHAST, THOMAS, Representative from Rhode Island, 179, 326, 569, 693. _Title_, of President, &c., _see Index_, vol. 1. TRACY, URIAH, Senator from Connecticut, 3, 113, 165, 322, 399, 481, 541, 661; on breach of privilege, 409, 416, 418; elected President of Senate, _pro tem._ 427. _See Index_, vol. 1. _Treason and Sedition_, bill to define, 175. _Treasury Department_, bill providing that the Secretary shall lay before Congress annual report with plans for improving revenue, &c., 478; House only has right to originate money bills, 478; not Senate or Secretary, 478; ordered to third reading, 478. _See Index_, vol. 1, _Executive Departments_. _Treaty with Great Britain_, motion that no person be delivered up under the 27th article, 476; debated, 476; lost, 476. _See Index_, vol. 1. TRIGG, ABRAM, Representative from Virginia, 120, 179, 326, 429, 497, 569, 694. TRIGG, JOHN, Representative from Virginia, 121, 179, 326, 497, 569, 693. TRUMBULL, JOHN, presents to the Senate two prints, 400; letter to House, offering two prints, 430; _note_, 430. TRUXTON, CAPTAIN, resolution to present a medal to, 469; no official information received on the subject, 470; resolution does not go far enough, 470; resolution to call for information adopted, 470; report of Secretary of the Navy in accordance therewith, 470; resolutions considered, 471; was it the duty of the commander of the Constellation to persist in the chase, and compel to action a ship of such superior force? 471; rash conduct, 471; law of Congress prescribes duty of naval commanders, 471; nothing in their conduct but what was highly laudatory, 471; frigates were constructed for protecting commerce--was this protecting commerce, to reduce his ship to a wreck? 472; resolution carried, 472. U _United States Judges_, memorial of to Senate, 665; petitions of, 727. UPHAM, GEORGE P., Representative from New Hampshire, 569, 693. V VAN ALLEN, JONATHAN E., Representative from New York, 14, 120, 179, 326. _See Index_, vol. 1. _Van Cortlandt, Philip_, Representative from New York, 14, 120, 180, 329, 429, 497. VAN HORN, ISAAC, Representative from Pennsylvania, 569, 693. VAN NESS, JOHN P., Representative from New York, 569, 693; on the apportionment bill, 574; case of, considered, 696; the member of the House has exercised the authority of a major of militia, under the authority of the United States, and thereby forfeited his seat, resolution to inquire considered, 696; important as deciding a principle, 696; resolution should go to committee on elections, 696; reference ordered, 697; report of committee, 725; explanation of Van Ness, 726; resolutions unanimously adopted; on the case of Van Ness, 697, 726. VAN RENSSELAER, KILLIAN K., Representative from New York, 569, 693. VARNUM, JOSEPH BRADLEY, Representative from Massachusetts, 14, 120, 179, 326, 429, 497, 569, 693; on the petition of manumitted slaves, 60; on military appropriations, 98, 99; on military and naval appropriations, 107; on tax on lawyers' licenses, 155; on the Georgia limits, 221; on temporary direct tax, 272; on bill relative to protection to commerce, 291; on a marine corps, 292; on direct taxes, 304; on the case of Jonathan Robbins, 455; on repeal of internal taxes, 580. _See Index_, vol. 1. VENABLE, ABRAHAM, Representative from Virginia, 14, 120, 180, 326; on relief to sufferers by fire at Savannah, 42; on lands for Canadian refugees, 45; on naval appropriations, 76, 77, 101, 103; on answer of House to President Adams' first message, 140; on expatriation, 151; on exempting bank notes from stamp duty, 157, 159; on the case of Griswold and Lyon, 212; on the naturalization laws, 255, 256; on presents to ministers by foreign courts, 263; relative to letters of marque, 297. _See Index_, vol. 1. _Vermont._--Vote for President, 62, 487. _Veto_ of army bill, by President Washington, 95. VINING, JOHN, Senator from Delaware, 6,114. _See Index_, vol. 1. _Virginia._--Vote for President, 62, 487. W WADSWORTH, PELEG, Representative from Massachusetts, 14, 179, 326, 429, 497, 570, 693. _See Index_, vol. 1. WALKER, BENJAMIN, Representative from New York, 569. WALN, ROBERT, Representative from Pennsylvania, 326, 529, 497; presents petition of free blacks, 436, 437; on petition of free blacks, 438, 440, 441; on the bill prohibiting the slave-trade, 476. WASHINGTON, reply to address of Senate, 5; present at the inauguration of John Adams, 11; _note_ 11; vote for, as President, in 1796, 62; vetoes army bill, 96; administration of, _note_, 111; letter accepting Lieutenant-Generalship, 177; as Lieutenant General, visits the House, 327; Mrs., reply to resolutions of Congress, 405; his death announced to House, 483; memory of, resolution on, 478; bill for erecting mausoleum reported, 478; discussion, 478; bill passed, 479; in Senate, bill to erect mausoleum, considered, 485; amendments agreed to, 486; bill passed, 486; bill to erect a mausoleum considered, 503; first section, 503; amendment moved to erect a monument, 503; a mausoleum preferable to a monument, 503; propriety of a monument, 503; a mausoleum more imperishable, 503; the adoption of the amendment equivalent to rejecting every plan, 504; expense of the proposed measure, 504; difference of expense between the two measures, 511; proceedings of last session, 512; bill recommitted, 512; proceedings of Congress in 1783; bill reported for a mausoleum as before, excepting a difference in materials, 513; various amendments proposed, 513; expense discussed, 514; blank filled with $200,000, 514; bill on third reading, 515; equestrian statue more proper than a mausoleum, 515; suitableness of a mausoleum, 515; the idea that a mausoleum would be equal to the character of Washington preposterous, 516; a tedious and useless debate, 516; a departure from the original plan a violation of the feelings of Mrs. Washington, 516; further debate, 517; bill ordered to be engrossed, 518; bill passed, 522; amendments of Senate considered, 538; House agree, 538. _See Index_, vol. 1, _Washington_. _Washington City_, first meeting of Congress at, 481. WATSON, JAMES, Senator from New York, 322, 399. WELLS, WILLIAM HILL, Senator from Delaware, 323, 400, 481, 540, 664; on the resolutions relative to the right of the United States to the free navigation of the Mississippi, 680. _Western lands_, resolutions relative to, 448. WHEATON, JOSEPH, elected sergeant-at-arms to House, 430, 569. WHITE, HUGH LAWSON, petition of, 48; report of committee on, 48; claim of, for services against the Indians, 48; committee report the expedition as undertaken without authority from the President, under laws of the United States, but the Indians highly aggressive, 48; _note_, 48; expedition just and necessary, 48; Indians carried the station and threatened to carry the seat of government, 48; the rations found for the troops on the expedition had been paid for, and no reason exists why the whole expense should not be paid, 49; if the expedition was unconstitutional, it should not affect the soldier who was obliged to obey his superior, 49; if this claim is allowed, it establishes a principle for all the militia in that expedition, 49; the expedition was a necessary one, 49; Congress were in session, and received information, but took no order thereon, 50; the constitution prescribes that if a State is actually invaded, it may engage in war; this is a case coming within the constitutional limits, 50; _note_, 50; referred to a select committee, 51; _note_, 52. WHITE, Right Rev. Bishop, appointed chaplain to Senate, 166. _See Index_, vol. 1. WHITE, SAMUEL, Senator from Delaware, 540, 661, 665; on the apportionment bill, 550; on the Mississippi question, 671. WILLIAMS, JOHN, Representative from New York, 14, 120, 179, 326; on the address to the President, 18; on compensation of President and other officers, 64; on increase of duties on sugar, 71, 72; on the accommodation of the President, 90; on the military establishment, 96; on answer of House to President Adams' first message, 139; on arming merchant-vessels, 147; on a naval armament, 154; on relief to daughters of Count de Grasse, 195; on expenditure for the naval service, 196; on the case of Griswold and Lyon, 210, 211, and 212; on the limits of Georgia, 219; on relations with France, 232; on establishing the Navy Department, 248, 251; on a new census for a direct tax, 265; on a direct tax, 268; on admission of aliens to citizenship, 279; on instructions to armed vessels, 286; on the bill relative to protection to commerce, 288; on direct taxes, 303; on intercourse with France, 347. _See Index_, vol. 1. WILLIAMS, LEMUEL, Representative from Massachusetts, 429, 497, 569, 693. WILLIAMS, ROBERT, Representative from North Carolina, 121, 179, 725; on a tax on lawyers, 156; advocates weekly license to distillers, 194; on the Griswold and Lyon case, 215; on establishing the Navy Department, 251; on presents to ministers by foreign courts, 263; a bill relative to treatment of alien enemies, 284; relative to letters of marque, 297; relative to State balances, 595; on considering the French spoliations, 734. WOODS, HENRY, Representative from Pennsylvania, 429, 497, 569, 693. WOOSTER, GENERAL, and others, bill relative to, 664. WRIGHT, ROBERT, Senator from Maryland, 540, 661; on memorial of United States Judges, 667. WYNN, THOMAS, Representative from North Carolina, 693. Y _Yeas and Nays_ in Senate on bill to accommodate the President, 9; in the House on amended answer to President's message, 33; on relief to sufferers by fire at Savannah, 44; on a direct tax on land, 52; on a direct tax on slaves, 56; in House on naval appropriations, 79; in House on bill relative to Mediterranean Powers, 81; on the appropriation for the accommodation of the President, 92; in House on naval appropriation, 105; in House on bill relative to military and naval appropriations, 107; on adoption of answer of House to President Adams' 1st message, 142; on a bill providing for a naval armament, 155; on bill laying stamp duty, 162; on bill laying additional duties on salt, 164; in Senate on act to declare treaty with France void, 173; in Senate on resolution authorizing Minister to Spain to receive presents, 173; in Senate on bill to define and punish treason and sedition, 173, 175; relative to landing French passengers, 174; do. on census bill, 174; on motion to reconsider do. 174; on enumeration of slaves, 174; on bill to encourage capture of French armed vessels, 175; on bill making appropriations for a naval force, 175; on expulsion of Matthew Lyon, 208; relative to claim of Amy Dardin, 213; on the Griswold and Lyon case, 216; on the bill establishing the Navy Department, 252; on the resolution relative to presents to our Ministers at foreign courts, 264; on the bill to raise a provisional army, 276; on the bill relative to alien enemies, 286; on the bill relative to protection of commerce, 291; on resolutions granting letters of marque, 300; on the sedition bill, 310; on the abrogation of the treaty with France, 316; on bill for sedition and punishment of crimes, 319; on instructions to armed vessels, 319; in Senate on non-intercourse with France, 324; do. on aliens holding lands in the Territories, 324; do. on vesting power of retaliation in President, 324; in Senate on increase of army, 325; on increase of salaries, 325; on acceptance of jurisdiction over Western Reserve, 325; on establishing United States post office, 325; on bill relative to intercourse with France, 347; on bill to increase the navy, 356; on agreeing to report of committee relative to capture of French vessels, 364; on the expulsion of Matthew Lyon, 372; on repeal of alien and sedition law, 384; on amendments to bill relative to disputed Presidential elections, 408; in Senate on resolution relative to breach of privilege, 421; on resolutions of Committee on Privileges, 422; on adopting form of warrant of Senate for apprehension of William Duane, 426; on Mississippi Slave Act, 427; relative to petition of free blacks, 444; on resolutions in case of Jonathan Robbins, 469; on the medal to Captain Truxton, 472; on postponing the bill relative to admirals in the navy, 474; on bill prohibiting the slave trade, 477; on the bill to erect a mausoleum for Washington, 479; in Senate relative to mausoleum for Washington, 486; relative to reporting the debates, 511; on the bill for a mausoleum to Washington, 518; on passage, 522; on the engrossment of the bill to repeal a part of the sedition act, 536; on bill in House to establish uniform system of bankruptcy, 536; on Senate amendments to bill for mausoleum to Washington, 538; in Senate on admission of a stenographer, 545; on the apportionment bill, 551; in Senate on the repeal of the Judiciary Establishment, 565; note, 565; on bill for State Government of Ohio, 566; on bill for relief of widows and orphans of naval and marine officers, 566; on repeal of Judiciary Establishment, 638; on bill amending naturalization laws, 639; on the bill relative to Ohio State Government, 653, 654; on passage of bill relative to Judiciary System, 655; in Senate on agreeing to report on memorial of United States Judges, 668; in Senate on the resolutions relative to the right of the United States to the free navigation of the Mississippi, 692; on reference of resolution calling for papers relative to cession of Louisiana, 701; on going into Committee of the Whole on the state of the Union relative to the cession of Louisiana, 709, 720; on resolutions relative to navigation of Mississippi, 710, 711; on refusing prayer of late United States Judges, 731; on receding to the respective States jurisdiction over the District of Columbia, 741; on bill relative to importation of emancipated slaves, 742. Z ZANE, ISAAC, petition of, 545. END OF VOL. II. FOOTNOTES: [1] A graceful compliment from Mr. Jefferson to Mr. Adams whose competitor he had been in the election, for the President and Vice President were not then voted for separately but the person having the highest number of votes became President, and the next highest the Vice President; and in this election there was only a difference of three votes between the two highest on the list. [2] The sensibility which was manifested when General Washington entered, did not surpass the cheerfulness which overspread his own countenance, nor the heartfelt pleasure with which he saw another invested with the power and authorities that had so long been exercised by himself.--_Marshall._ [3] In this early day, the parliamentary rule was enforced against any reference in one House to what was done in the other. [4] Valued by a speaker in this debate at £5000 sterling, and afterwards given to the Washington College, Lexington, Va. [5] Afterwards General and President. This was his first appearance in the national councils--and characteristically--defending with his voice those Western settlers whose defence, with the sword, was afterwards the foundation of his national fame and political elevation. [6] This is the true ground on which the United States becomes liable to a State for its expenses in suppressing or repulsing Indian hostilities. It turns upon the idea of an actual invasion, or such imminent danger of it as not to admit of delay: then the contingency happens in which the State may engage in war, and all the acts of Congress, and the Government orders give way before a constitutional right. Tennessee, like other new countries in the United States, was settled without law, and against law. Its early settlers not only had no protection from the Federal Government, but were under legal disabilities to pursue the enemy. This arose from the policy of the Government to preserve peace on the frontiers by restraining the advance of settlements, and curbing the disposition of the people to war. The history of all the new settlements, from the Atlantic to the Pacific, is the same: people go without law, and against law; and when they can neither be stopped by the Government, nor driven back by the Indians, then the Government gives them protection. [7] The committee reported in favor of paying the brigade of General Sevier, (300 infantry and two troops of horse,) amounting to the sum of $22,816 and 25 cents--a very small sum for a remote expedition into the country of a formidable Indian tribe, and so efficiently conducted as to secure tranquillity to the frontier. It deserves to be remembered for its promptitude, efficiency and cheapness. [8] The solution of the enigma was, that those who voted against taxing slaves were opposed to any direct tax whatever, and the members from the slave States who supported the tax, did so because the taxation of lands and slaves went together in the slave States--the people were used to the association--and to omit slaves in the direct tax would be unjust and unpopular, as sparing the rich and making the tax fall heavier upon persons of less property. [9] Yeas and nays not taken. [10] The great naval powers of Europe show themselves sensible of this, by proposing to the United States to abolish privateering. [11] The whole expense of procuring peace from Algiers, and forbearance to prey upon our citizens and commerce, and to redeem the captives, was then about one million of dollars; and the alternative was between paying that amount and carrying on war against her. War preparations had begun, and six frigates had been authorized to be built. A war with Algiers, then a formidable power, (and of course with the rest of the Barbary States,) was a very serious undertaking to the United States at that time--the cost great and certain--the issue uncertain. The greatest powers of Europe paid tribute to these barbaric pirates: it was no disgrace to the infant United States to do the same: and the redemption of the captives was a further inducement, founded in humanity: so that the price of peace became a question of economy. [12] She was compensated accordingly. [13] The resolution offered by Mr. Harper contemplated an official interposition in behalf of Lafayette--a grave proceeding, which President Washington had well considered beforehand, and maturely decided against. But unofficially he had been exerting himself to procure the release, or to mitigate the fate of the illustrious captive. A confidential person had been sent to Berlin to solicit his discharge, his first captivity being in Prussia; but before the arrival of the messenger the well-guarded prisoner had been turned over to the Emperor of Germany. Mr. Thomas Pinckney, the American Minister in London, had been instructed to make known the wishes of the President to the Austrian Minister at that place, and the British Ministry had been solicited to take an interest in the application: but all in vain. As a last attempt, and at the moment of ceasing to be President, he addressed a private letter to the Emperor of Austria, couched in noble and feeling terms, in which he solicited that Lafayette might be allowed to come to the United States. The letter said: "I forbear to enlarge upon this delicate subject. Permit me only to submit to your majesty's consideration, whether his long imprisonment, and the confiscation of his estate, and the indigence and dispersion of his family, and the painful anxieties incident to all these circumstances, do not form an assemblage of sufferings which recommend him to the mediation of humanity? Allow me, sir, on this occasion to be its organ; and to entreat that he may be permitted to come to this country on such conditions, and under such restrictions as your majesty may deem it expedient to prescribe." This touching appeal remained without effect; and the romantic effort of Dr. Bollman having failed to save Lafayette, after snatching him from the dungeon of Olmutz, it remained for the glittering sword of the conqueror of Italy to command what the noble letter of Washington failed to obtain. After the Treaty of _Campo Formio_, an aid-de-camp of the then young General Buonaparte proceeded to Vienna--asked the release of Lafayette--and obtained it. The Emperor, Francis the Second, might have appeared more gracefully in the transaction, if he had yielded the release to the letter of Washington. [14] The close of the Fourth Congress terminates the presidency of General Washington, and presents, a proper point for a retrospective view of the working of the Government for the first eight years of its existence. Such a view is full of instruction, and deserves to be taken; and first of the finances. Moderate expenses, and moderate taxes were the characteristics of this branch of the service. The support of the Government, called the Civil List, and comprehending every object of civil expenditure, was, for the year 1796, (the last of Washington's administration,) $530,392, and the duties on imports about five millions of dollars--or nearly ten times as much as the support of the Government required--leaving nearly nine-tenths to go to the public debt, the preservation of peace with the Indian tribes, defence of the frontiers, protection of commerce in the Mediterranean; and other extraordinary objects. This amount was produced by moderate duties--the _ad valorems_, 10, 12-1/2, 15 and 20 per centum--and mainly produced by the two first rates, the two latter chiefly applying to objects of luxury not used by the general mass. Thus: The amount of imports subject to the 10 and the 12-1/2 rates was $28,267,000, while those subject to 15 were $7,850,000; and those subject to 20 per centum only the third of one million. The average of the whole was about 13 per centum. The specific duties were on the same moderate scale; and the cost of collecting the whole was 3.73 per cent. The interest on the public debt was three millions and a quarter; the Military Department, $1,300,000; Naval Department, $440,000; tribute to the Barbary powers, veiled under the name of foreign intercourse expense, was $300,000; while the regular diplomatic intercourse was only about $40,000. The whole expenditure of the Government was about 5-1/2 millions: its whole revenue something more--the excise on distilled spirits producing some $400,000. Thus, order and economy were established in the finances. Abroad peace had been maintained. The proclamation of neutrality, unanimously agreed upon in the Cabinet, saved the United States from the calamity of being involved in the wars of the French Revolution. The commercial treaty with Great Britain stopped the depredations which the British had commenced upon American vessels carrying provisions to France, and obtained indemnity for depredations already committed. With Spain the serious question of the free navigation of the Mississippi was settled; and, in addition to the right of navigation, a place of deposit for American produce and merchandise was obtained at New Orleans--the right to be absolute for three years, and afterwards until an equivalent place should be provided. (It was the subsequent violation of this right of deposit which led to the acquisition of all Louisiana.) Safety to the persons and property of American citizens in the Mediterranean Sea had been obtained, according to the means usual at that time, and upon terms to be endured until strong enough to do better. The formidable Indian war in the North-west, and the troublesome hostilities in the South-west, had been terminated, and peace given to the young communities on the Kentucky and Cumberland Rivers which, commencing without authority, were laying the foundations of future great States. A domestic insurrection (that of Western Pennsylvania) had been quelled, and happily without bloodshed--the exhibition of a large force, with Washington at its head, being sufficient to forbid resistance, and a wise humanity sparing all punishment. The new Government was solidly established, and amidst difficulties which might have been insuperable under any other President. Public credit, which had sunk so low under the Confederation, had risen to a high standard under the new Government; and a general commercial and agricultural prosperity pervaded the land. [15] This was an extra session, called in the early months of Mr. Adams' administration, for the causes stated in his Message to the two Houses. [16] The following is the speech referred to, Barras being the President of the Directory who addressed it to Mr. Monroe: "Mr. Minister Plenipotentiary of the United States of America: By presenting to-day your letters of recall to the Executive Directory, you give to Europe a very strange spectacle. "France, rich in her liberty, surrounded by a train of victories, strong in the esteem of her allies, will not abase herself by calculating the consequences of the condescension of the American Government to the suggestions of her former tyrants; moreover, the French Republic hopes that the successors of Columbus, Ramhiph, and Penn, always proud of their liberty, will never forget that they owe it to France. They will weigh, in their wisdom, the magnanimous benevolence of the French people with the crafty caresses of certain perfidious persons who meditate bringing them back to their former slavery. Assure the good American people, sir, that, like them, we adore liberty; that they will always have our esteem; and that they will find in the French people republican generosity, which knows how to grant peace, as it does to cause its sovereignty to be respected. As to you, Mr. Minister Plenipotentiary, you have combated for principles; you have known the true interests of your country: depart with our regret. In you we give up the representative to America, and retain the remembrance of the citizen whose personal qualities did honor to that title." [17] This is a view of those depredations which has been lost sight of. Their injuries are now considered as falling exclusively upon the merchants: it was then agreed that they fell upon the community, the merchant indemnifying himself by insurances and increased profits. [18] And is still so carried on. [19] Taxed in Great Britain, with the privilege of commutation for a gross sum. [20] This sum which amounted to one third of the amount of the notes and disposits, was a general rule for regulating the quantity of cash kept to answer their current demands. [21] This taxation of bank notes presents the ready mode of regulating the paper currency of the States, and suppressing the mischief of small notes which are a constant source of depredation upon the laboring part of the community, a constant source of crime in the making and passing counterfeit paper, and the constant expeller of the constitutional currency. These small notes were hardly known at the time of this tax, which was so readily imposed, and therefore were taxed lightest: now they are a general circulation, and the most profitable part of a bank's issues; and, therefore, should be taxed highest, both on the principle of being most profitable to the banks and most injurious to the community. [22] This equilibrium was soon destroyed. The merchants soon got rid of the stamp tax; but the farmers still bear a salt tax. [23] This extra session having been called on account of expected hostilities with the French Republic, the labors of Congress were consequently limited to the two objects of defence and revenue--preparation for defence, and providing the additional revenue which the defence required. Both objects were accomplished. The three frigates--Constitution, Constellation and United States, which afterwards earned themselves a place in history--were finished and manned. A detachment of 80,000 militia was authorized. A stamp duty was imposed--a loan authorized--and the salt tax increased: the latter as a temporary measure, and with an express clause against continuance, without which it could not have passed, and in contravention of which it was continued. Defence was the great object of the session: invasion the danger: and its repulse by sea and land the remedy. Preparation against invasion was, at that time, a proper policy: the progress of science, and of the arts of peace, has superseded such policy in our day. The electric telegraph, and the steam car, have opened a new era in defensive war. Accumulated masses of volunteers, summoned by electricity and transported by steam, rushed upon the invaded point and giving incessant attacks with fresh arrivals, would exterminate any invading force; and give the cheap, effective and extemporaneous defence which the exigency required. [24] An illustrious mission, nationally composed of the most eminent citizens, three in number, and taken from different parts of the Union, and from both political parties: Charles Cotesworth Pinckney, from South Carolina; John Marshall, from Virginia; Elbridge Gerry, from Massachusetts--the two first federal; Mr. Gerry, republican. [25] Mr. Gallatin is not accurately reported. The exception extended to all the officers of the Federal Government, and for as long a time as their duties required them to remain in the States, and to all others for the period of six months. [26] In a subsequent part of this same debate, Mr. Macon retracted this censure upon the Quakers, as being too general. [27] Acts of limitation have been found necessary in all countries, and in all sorts of claims, to quiet demands, bring things to settlement, and to protect the fair dealer from stale demands, after time and accidents have deprived him of the means of invalidating them. Necessary in the transactions of individuals, they become still more so in the transactions of the Government. Its officers are constantly changing, and the knowledge of transactions continually being lost, and the representatives of the Government without the personal interest which stimulates inquiry and invigorates defence. The Government becomes helpless against claims, even the most unjustifiable, after the lapse of some years; and, without the protection of a statute of limitations, is subject to continual impositions. This was well known to the conductors of our Revolution, and the founders of our Federal Government; and they took care, as they believed, to provide against a danger which they knew to be imminent. Equally solicitous to pay every valid claim, and to avoid the payment of unjust ones, they began even during the war to call upon all claimants to present their demands--to furnish abstracts when the case was not ready to be proved up. These calls were redoubled at the conclusion of peace, were repeated during the existence of the confederation, and reiterated at the formation of the new Government under the constitution. They took the form of law, and barred the claims which were not presented within limited times. The final bar was seven years after the new Government went into operation. The committee, of which Mr. Gallatin was chairman, made an enumeration of these different statutes, and reported in favor of their observance--a report in which the House concurred, and to which Congress then conformed its action. These statutes, and the reasons in which they were founded, seem to have been since forgotten; and stale claims let in upon the Treasury without restraint, and proved without difficulty, which no call could bring forth at the time they were supposed to have originated. It is instructive to look over the list of these statutes, and see the reasons in which they were founded, and the efforts made to call in all valid claims, and the attention paid to them fifty years ago, and the disregard since. [28] Upon the request of General Washington the Count de Grasse remained in the Chesapeake beyond the time which his instructions allowed, risking all the penalties of insubordination, and by so doing did what was indispensable to the capture of Lord Cornwallis. [29] This was the first debate on the prohibition of Slavery in a Territory which took place under the Federal Constitution, and it is to be observed that the constitutional power of Congress to make the prohibition, was not questioned by any speaker. Expedient objections only were urged. [30] The speaker here alludes to the paper called "the second treaty of Pilnitz," which he declares to be a forgery. The first treaty of Pilnitz was a mere conditional agreement between the Emperor and the King of Prussia, that if either of them should be attacked by France, they would unite to repel the attack. This treaty they avowed; and when, on the acceptance of the new Constitution by the King of France, better prospects of a peaceable conduct on the part of that nation were entertained, they suspended this treaty by a formal declaration. [31] Thus, by a close vote, the Naval Department was created; and, as the proceedings show, by a party vote--the Republicans of that day being against a Navy. [32] The allusion was to Mr. Liston, the British Minister, accused of complicity with Senator Blount, of Tennessee, in a scheme to send an expedition against the Spanish province of West Florida, in breach of our neutrality, Great Britain and Spain being then at war, and the United States at peace with both. Mr. Blount was expelled the Senate for his part in that affair, but it was only the beginning of the enterprises which ended twenty years afterwards in adding both East and West Florida to the United States. These provinces were geographically appurtenant to the American Union, and their possession essential to its political system. The desire for their acquisition was natural, and efforts to obtain them incessant, until the acquisition was made. [33] The call was made with a view to the final vote on the Provisional Army Bill, and the way in which the absentees were accounted for--one sick and the rest on leave--was highly creditable to the members. [34] Whereas, armed vessels sailing under authority, or pretence of authority, from the Republic of France, have committed depredations on the commerce of the United States, and have recently captured the vessels and property of citizens thereof, on and near the coast, in violation of the law of nations, and treaties between the United States and the French nation: Therefore, _Be it enacted, &c._, That it shall be lawful for the President of the United States, and he is hereby authorized, to instruct and direct the commanders of the armed vessels belonging to the United States, to seize, take, and bring into any port of the United States, to be proceeded against according to the laws of nations, any such armed vessel which shall have committed, or which shall be found hovering on the coasts of the United States, for the purpose of committing depredations on the vessels belonging to citizens thereof; and, also, to retake any ship or vessel, of any citizen or citizens of the United States, which may have been captured by any such armed vessel. [35] At this period it was the custom of Congress to have the funerals of members in the morning or evening, before the meeting, or after the adjournment of the Houses. [36] I allude to my painful residence here, as a political cipher. [37] The general consent with which this answer was voted was honorable to the House, and advantageous to the character of the country. Besides depredations on our commerce, there was, at that time, a course of studied indignities to the United States from the French Government, then having the form of a Directory, of which _Barras_ was President, and Talleyrand Foreign Secretary. These indignities were marked and systematic; of which the speech of _Barras_ to Mr. Monroe when he had his take-leave audience--the refusal to receive his successor, General Charles Cotesworth Pinckney, and insolent threat to commit him to the police as a mere foreigner in Paris--the subsequent refusal to receive both himself and Judge Marshall, sending them out of the country, and endeavoring to divide the embassy--intriguing to extort a bribe, and to obtain a loan in violation of our neutrality--and not only proclaiming but acting on the assumption that we were a divided people, (French and British,) and that a devotion to one or the other of these powers, and not a sentiment of American nationality, was the sole rule of our policy. The unanimity of the answer to the President's Speech was a proper reply to all this outrage and insult. And the re-echoed declaration of protection "_to the sacred rights of embassy_," was not only just in itself, and called for by the occasion, but was due to the personal characters, the dignity and decorum of the two repulsed Ministers, (Messrs. Pinckney and Marshall,) as well as to their official station and the nation they represented. [38] Then in a state of successful revolt against France, but her independence not acknowledged. [39] A strong expression, but justified by what had been seen in St. Domingo. [40] This whole debate abounds with valuable information on the condition of the French West Indies--political, commercial and historical--during the period of the French Revolution. Toussaint, Santhonax, Polverel, Victor Hugues, Hedouville, Rigaud, Deforneaux, were household words fifty years ago; and words of portent in their day, and giving shape to events of present import--though hardly known now. [41] The House was in Committee of the Whole, but still the speakers were held to the point, and hence the force and brevity, and instructive character of these early debates. [42] It was not the custom then to adjourn the Houses to attend the funeral of a member. The burial took place before, or after, the day's session. [43] In our service the time has been stated at much less--at every eight or ten years. [44] The following extract from the celebrated report and resolutions of the General Assembly of Virginia, in the year 1799, speak the sentiments of the democratic party of that day on the subject of a Navy: "With respect to the Navy, it may be proper to remind you that whatever may be the proposed object, or whatever may be the prospect of temporary advantages resulting therefrom, it is demonstrated by the experience of all nations who have ventured far into naval policy, that such prospect is ultimately delusive; and that a navy has ever in practice been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce." And among the resolutions then adopted, she instructs her Representatives and requests her Senators as follows: "To prevent any augmentation of the navy, and to promote any proposition for reducing it within the narrowest limits compatible with the protection of the sea-coasts, ports and harbors of the United States, and of consequence a proportionate reduction of the taxes." [45] These assurances were given by the same Directory, and through the same Minister of Foreign Affairs, (Talleyrand,) who had refused to receive Messrs. Pinckney and Marshall; and, on receiving these assurances, another extraordinary mission of three eminent citizens was appointed to proceed to Paris. They were: Oliver Ellsworth, Chief Justice of the Supreme Court of the United States; William Richardson Davie, late Governor of the State of North Carolina; and William Vans Murray, U. S. Minister Resident at the Hague. Before they arrived at Paris, the Revolution of the 18th _Brumaire_ had occurred--the Directorial Government overturned, the Consulate established, and Buonaparte at the head of affairs. He retained Talleyrand in the Foreign Ministry, and that astute and supple character conformed as readily to the policy of the First Consul, (peace with the United States,) as he had complied with the contrary policy of the Directory. [46] The allusions were to Mr. Jay and Mr. Ellsworth, appointed to foreign embassies while chief Justices--the former by President Washington, the latter by President John Adams. [47] This was the famous Judiciary act, passed in the last days of Mr. Adams' administration, and increasing the number of federal judges, which gave so much dissatisfaction at the time, and which was repealed in the beginning of Mr. Jefferson's administration. [48] The prints referred to by Mr. Trumbull, in his letter to the Speaker of the House of Representatives, are, first, a representation of the Battle of Quebec, and death of General Montgomery; second, the Battle of Bunker's Hill--both elegant engravings. They are placed on the right and left of the Speaker's chair, and are highly ornamental to the Representatives' Chamber. [49] This was a skilful movement, and a fair one. It shifted the _onus_ from the friends to the opponents of the President; and besides giving them the advantage of the defensive, impeded the supporters of Mr. Livingston's motion with preliminary and extrinsic questions from the start. It was a great party question in its day, and before the people chiefly turned upon the point that Robbins was an American citizen, while in Congress that point was given up, and the debate turned upon the legal right of the President to advise the judge to give up the man, and especially to giving him up without trying his claim to American citizenship. Though made, in the main, a party question, it was not entirely so in the vote, many of the democracy voting with the federal members in justification of Mr. Adams. It was in this debate that the (afterwards) Chief Justice Marshall made the speech which gained him so much fame. [50] This speech is not reported. [51] This speech is not reported. [52] Not reported. [53] Not reported. [54] Son of Mr. James Jarvis, of New York, and midshipman on board the Constellation in the engagement of the 1st of February, who was killed by the falling of the mast. [55] The First Meeting of Congress at Washington City. [56] Citizen Talleyrand, retained under the Consulate as Minister of Exterior Relations, was the organ of our Ministers' communications with the First Consul, and his language and deportment on their arrival present a fine contrast to what they were in the time of the Directory, and of the X., Y., Z. subaltern intriguers. Thus, arriving in Paris on the 2d of March, they notify the Citizen Minister of that fact on the 3d, and the same day receive this answer: "The information which you have just communicated of your arrival at Paris, has given me real satisfaction. If you will take the trouble to call upon me at half-past twelve to-morrow, I will be exceedingly glad to have the honor of receiving you." They called as requested, and were treated with all courtesy; and, having expressed a desire to be presented to the First Consul, they received the next day the evidence that he had attended to their request and accomplished it, and giving the hour they were to be "so obliging" as to attend in the Hall of the Ambassadors, in the Palace of the Tuileries. And in notifying them that a commission was appointed to treat with them, he expressed himself with amiable politeness, "to remove a misunderstanding which comports as little with the interests as with the sentiments of the two Governments." [57] Subject to the disapproval of Congress, and to remain in force until disapproved--this Territory being a copy in its Government of that of the North-west under the Ordinance of the 13th July, 1787, except in the anti-slavery clause. [58] Nominated Secretary at War, May 7th, 1800. Nomination postponed on the 9th of May. Appointed May 13th Secretary of State, appointed Chief Justice of the Supreme Court of the United States, Jan. 27th, 1801. Died 1835. [59] Twenty-two years afterwards this opinion was verified, and the system abolished, after thirty years of injurious existence--so hard is it to get rid of an evil establishment when it has once got foothold. [60] This result was due, more than to any other, to General Hamilton, as the majority of the federal party were strongly disposed to support Colonel Burr--from doing which, they were impressively and successfully counselled by him. He was personally well with Burr, and ill with Jefferson, but took the public good, and not his own feelings, for his guide. He said of them, and of his own duty between them: "If there be a man in the world I ought to hate, it is Jefferson. With Burr I have always been personally well. But the public good must be paramount to every private consideration." The danger of Burr's election was imminent, as appears from a letter of Bayard's to General Hamilton, wherein he says: "I assure you, sir, there appears to be a strong inclination in the Federal party to support Mr. Burr. The current has already (January 7th) acquired considerable force, and is manifestly increasing. The vote which the representation of a State enables me to give would decide the question in favor of Mr. Jefferson. At present I am by no means decided as to the object of preference. If the Federal Party should take up Mr. Burr, I ought certainly to be impressed with the most undoubting conviction before I separate myself from them." This passage from a letter of Mr. Bayard, (who afterwards decided the election,) shows the imminence of the danger of Burr's election; and the answer to it, (with letters to other federal members,) shows that that danger was averted by General Hamilton. In these letters he depicted Burr as morally and politically a bad man, utterly unfit and unsafe to be trusted with the Presidency, and in circumstances to make crime his necessity as well as his inclination, and implored him to save the country from the "_calamity_" of his election. The sting of these letters, rankling in the bosom of Burr, produced the duel in which General Hamilton afterwards lost his life. A singularly hard fate! to die for serving his country, and that in the person of an enemy. This election in the House of Representatives, protracted through four days and to the 36th ballot, produced the most intense excitement throughout the United States, and filled the minds of all good men with alarm for the safety of the Union. The conclusion, however, showing ten States to have voted for Mr. Jefferson, and only four for Mr. Burr, shows that there were many members duly impressed with the solemnity of the crisis, and patriotically coming forward to sacrifice private and political feeling on the altar of public safety. The following detail of the 36 ballotings, all alike but the last, appeared in the National Intelligencer at the time, and shows the name and the vote of the different members in this most arduous and eventful struggle. [From the National Intelligencer, of Feb. 17 and 18, 1801.] That the people may know how the votes of their Representatives have been given, we present a statement: _New Hampshire._--4 for Burr, viz: Mr. Foster, Mr. Sheafe, Mr. Tenney, and Mr. Freeman. _Massachusetts._--11 for Burr, viz: Mr. S. Lee, Mr. Otis, Mr. N. Read, Mr. Shepard, Mr. Thatcher, Mr. Wadsworth, Mr. L. Williams, Mr. Bartlett, Mr. Mattoon, Mr. J. Read, Mr. Sedgwick. Three for Jefferson, viz: Mr. Bishop, Mr. Varnum, Mr. Lincoln. _Rhode Island._--2 for Burr, viz: Mr. Champlin, and Mr. J. Brown. _Connecticut._--7 for Burr, viz: Mr. C. Goodrich, Mr. E. Goodrich, Griswold, Mr. Dana, Mr. J. Davenport, Mr. Edmond, Mr. J. C. Smith. _Vermont._--1 for Jefferson, viz: Mr. Lyon. One for Burr, viz: Mr. Morris. _New York._--6 for Mr. Jefferson, viz: Mr. Bailey, Mr. Thompson, Mr. Livingston, Mr. Elmendorph, Mr. Van Cortlandt, Mr. J. Smith. Four for Mr. Burr, viz: Mr. Bird, Mr. Glenn, Mr. Cooper, Mr. Platt. _New Jersey._--3 for Jefferson, viz: Mr. Kitchell, Mr. Condit, Mr. Linn. Two for Burr, viz: Mr. F. Davenport, Mr. Imlay. _Pennsylvania._--9 for Mr. Jefferson, viz: Mr. Gallatin, Mr. Gregg, Mr. Hanna, Mr. Leib, Mr. Smilie, Mr. Muhlenberg, Mr. Heister, Mr. Stewart, Mr. R. Brown. Four for Burr, viz: Mr. Waln, Mr. Kittera, Mr. Thomas, Mr. Woods. _Delaware._--1 for Mr. Burr, viz: Mr. Bayard. _Maryland._--4 for Mr. Jefferson, viz: Mr. S. Smith, Mr. Dent, Mr. Nicholson, Mr. Christie. Four for Mr. Burr, viz: Mr. J. C. Thomas, Mr. Craik, Mr. Dennis, and Mr. Baer. _Virginia._--14 invariably for Mr. Jefferson, viz: Mr. Nicholas, Mr. Clay, Mr. Cabell, Mr. Dawson, Mr. Eggleston, Mr. Goode, Mr. Gray, Mr. Holmes, Mr. Jackson, Mr. New, Mr. Randolph, Mr. A. Trigg, Mr. J. Trigg, Mr. Tazewell. Five for Mr. Burr on the same ballots, (two of whom on the first ballot voted for Mr. Jefferson,) viz: Mr. Evans, Mr. H. Lee, Mr. Page, Mr. Parker, Mr. Powell. _North Carolina._--6 invariably for Mr. Jefferson, viz: Mr. Alston, Mr. Macon, Mr. Stanford, Mr. Stone, Mr. R. Williams, Mr. Spaight. Four for Burr on some ballots, (3 of whom on the first ballot voted for Mr. Jefferson,) viz: Mr. Henderson, Mr. Hill, Mr. Dickson, Mr. Grove. _South Carolina._--Mr. Sumter being sick has not attended, but will attend, at every hazard, the moment his vote can be of any avail. The individual votes of the Representatives of this State are not accurately known, but it is generally believed that Mr. Huger votes for Mr. Jefferson; and Mr. Rutledge, Mr. Pinckney, and Mr. Harper, vote for Mr. Burr. Mr. Nott's vote is doubtful. He has gone home. _Georgia._--1 for Jefferson, viz: Mr. Taliaferro--Mr. Jones, who is dead, would have voted the same way. _Kentucky._--2 for Mr. Jefferson, viz: Mr. Davis and Mr. Fowler. _Tennessee._--1 for Mr. Jefferson, viz: Mr. Claiborne. On Saturday last a memorial was presented to John Chew Thomas, representative in Congress for this District, from a respectable number of his constituents, recommending him to vote for Thomas Jefferson, and declaring that at least two-thirds of his constituents were in favor of the election of Mr. Jefferson. The memorial was signed by the most respectable Federal gentlemen of the City of Washington. <tb> [From the National Intelligencer, of Feb. 18.] On Tuesday at 12 o'clock the 35th ballot was taken; the result the same with that of the preceding ballots. At one o'clock the 36th ballot was taken which issued in the election of Thomas Jefferson. On this ballot there were, Ten States for Mr. Jefferson, viz: Vermont, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, Kentucky, and Tennessee. Four States for Mr. Burr, viz: Rhode Island, New Hampshire, Connecticut, and Massachusetts. Two States voted by blank ballots, viz: Delaware and South Carolina. In the instance of Vermont, Mr. Morris withdrew. In that of South Carolina, Mr. Huger, who is understood previously uniformly to have voted for Mr. Jefferson, also withdrew, from a spirit of accommodation, which enabled South Carolina to give a blank vote. And in the instance of Maryland, four votes were for Jefferson and four blank. [61] The administration of Mr. Adams fell upon difficult times, and involved the necessity of measures always unpopular in themselves, and never more so than at that time. The actual aggressions of France upon our commerce, her threats of war, and insults to our ministers, required preparations to be made for war; and these could not be made without money, nor money be had without loans and taxes. Fifteen millions was the required expenditure of the last year of his administration; a large sum in that time, but almost the whole of which went to three objects; the army, the navy, and the public debt. The support of the Government remained at the moderate sum which it had previously presented; to wit, $560,000. The duties still remained moderate--the _ad valorems_, 10, 12-1/2, 15 and 20 per centum; and the latter more nominal than real, as it only fell upon a few articles of luxury, of which the importation was only to the value of $430,000. The main levy fell upon the 10 and 12-1/2 per centum classes, of which to the value of 26-1/2 millions were imported; of the 15 per centum class only 7-1/2 millions were imported; and the average of the whole was 13 per centum and a fraction. The specifics were increased, but not considerably; and the cost of collecting the whole was 4-1/2 per centum. Direct taxes and loans made up the remainder. The whole amount collected from duties was about 10 millions: to be precise, $10,126,213; that is to say, nearly twenty times as much as the support of the Government (comprehending every civil object) required. The administration of Mr. Adams, though condemned for extravagance, was strictly economical in the support of the Government, and in the collection of the revenue: the army and the navy, those cormorant objects of expenditure, brought the demands for money which injured the administration. [62] This is the first instance of a _Message_ being sent to the two Houses at the commencement of a session. Though veiled and commended by temporary reasons, founded in the convenience of the members and placed in the fore part of the letter, yet the concluding reasons (which are of a general and permanent nature) disclose the true reasons for the change--which was, to make it permanent: and permanent it has been. It was one of Mr. Jefferson's reforms--the former way of assembling the two Houses to hear an address in person from the President, returning an answer to it, the two Houses going in form to present their answer, and the intervention of repeated committees to arrange the details of these ceremonious meetings, being considered too close an imitation of the royal mode of opening a British Parliament. Some of the democratic friends of Mr. Jefferson doubted whether this change was a reform, in that part of it which dispensed with the answers to the President. Their view of it was, that the answer to the Speech, or Message, afforded a regular occasion for speaking to the state of the Union, and to all the topics presented; which speaking, losing its regular vent, would afterwards break out irregularly on the discussion of particular measures, and to the interruption of the business on hand. Experience has developed that irregularity, and another--that of speaking to the Message on the motions to refer particular clauses of it to appropriate committees, thereby delaying the reference; and, in one instance during Mr. Fillmore's administration, preventing the reference during the entire session. [63] [From the National Intelligencer of Jan. 8, 1802.] On Monday last the editor addressed a letter to the President of the Senate, requesting permission to occupy a position in the lower area of the Senate Chamber, for the purpose of taking with correctness the debates and proceedings of that body. It may be necessary to remark that heretofore no stenographer has been admitted in this area; and the upper gallery, being open to the admission of every one, and very remote from the floor of the House, has prevented any attempt being made to take the debates, from the impossibility of hearing distinctly from it. The contents of the letter were submitted by the President to the Senate; and a resolution agreed to, to the following effect: _Resolved_, That any stenographer, desirous to take the debates of the Senate on Legislative business, may be admitted for that purpose, at such place, within the area of the Senate Chamber, as the President shall allot. On Wednesday the editor had, accordingly, assigned to him a convenient place in the lower area, from which he took notes of the proceedings of the Senate On the adoption of the above resolution, which opens a new door to public information, and which may be considered as the prelude to a more genuine sympathy between the Senate and the people of the United States, than may have heretofore subsisted, by rendering each better acquainted with the other, we congratulate, without qualification, every friend to the true principles of our republican institutions. [64] This motion gave rise to one of the most extended and earnest debates which had occurred in Congress, involving the interests and passions of party, as well as questions of high constitutional law and of great public expediency; and was brought on in the approved parliamentary form of a resolution to try the principle, unembarrassed with the details of a new bill. The law proposed to be repealed, besides adding sixteen new circuit judges at once to the federal bench, (making 38 in all,) was passed in the last days of an expiring administration, and the appointments made in these last moments, and well confined to one political party: so that many reasons conspired to make it objectionable on one hand and desirable on the other, and to call forth the strongest exertions both for, and against, the repeal. [65] It was a party vote, and a close one, some changes of members having changed the majority since the last session--then a bare majority on the Federal side. [66] A debate of great length and earnestness now took place in the House on this repealing bill sent down from the Senate, and passed there by a majority of only one. The two parties seemed to have staked themselves upon it, not before the House, (where the issue was certain,) but before the country, to the arbitrament of which the great appeal was made. Above thirty members delivered elaborate speeches, of which but small parts can be given in an abridgment--the less to be regretted, as the staple of each was, of necessity, much the same--but varied, enlivened and enforced by the peculiar talent, learning and ability of different speakers. Their names were--for the repeal: John Bacon, of Massachusetts; John Clopton, of Virginia; Thomas T. Davis, of Kentucky; John Dawson, of Virginia; William B. Giles, of Virginia; Andrew Gregg, of Pennsylvania; Nathaniel Macon, of North Carolina; John Milledge, of Georgia; Thomas Morris, of New York; Joseph H. Nicholson, of Maryland; John Randolph, of Virginia; General Samuel Smith, of Maryland; Philip R. Thompson, of Virginia; James Holland and Robert Williams, of North Carolina.--Against the repeal: James A. Bayard, of Delaware; Manasseh Cutter, of Massachusetts; Samuel W. Dana, of Connecticut; John Dennis, of Maryland; Thomas Plater, of Maryland; William Eustis, of Massachusetts; Calvin Goddard, of Connecticut; Roger Griswold, of Connecticut; Seth Hastings, of Massachusetts; Joseph Hemphill, of Pennsylvania; Archibald Henderson, of North Carolina; William H. Hill, of North Carolina; Benjamin Huger, of South Carolina; Thomas Lowndes, of South Carolina; John Rutledge, of South Carolina; John Stanley, of North Carolina; Benjamin Tallmadge, of New York. [67] The detail of the vote on the balloting shows this fact, so creditable to South Carolina. [68] This is the first authentic declaration that Mr. Jefferson's opinion on slavery was an obstacle to his receiving the South Carolina vote. [69] A double movement was going on at the same time in relation to the violation of the right of deposit at New Orleans: one by the Administration, commencing with an embassy both to France and Spain to negotiate for the desired places; the other by the opposition, who held negotiation to be unworthy of the country in circumstances of such wrong and insult, and preferred the immediate seizure of New Orleans. Mr. Ross, a Pennsylvania Senator, from the west of the State, whose trade went to New Orleans, was the leader of this forcible movement--in which he was well sustained by the _feeling_ of the whole West. It was on Mr. Ross's resolutions that this violation of the right of deposit at New Orleans was publicly debated; and as it concerned the free navigation of the Mississippi, it was called the "Mississippi question." [70] This is the act which began the movement, which ended in the purchase of Louisiana. At the time it was passed the views of no one extended to the acquisition of that great province. The island on which New Orleans stands, and the two Floridas, were the object. Even this object was veiled by general expressions in relation to foreign intercourse, but its true purpose was made known in a confidential communication from the President to the House of Representatives, and by it communicated to the Senate, when the bill was up for its concurrence. Mr. Bayard and Mr. Nicholson were the committee that carried up the bill, and delivered this message: "_Gentlemen of the Senate_: "We transmit you a bill, which has passed this House, entitled "An act making further provision for the expenses attending the intercourse between the United States and foreign nations," and in which we request your concurrence. This bill has been passed by us in order to enable the President of the United States to commence, with more effect, a negotiation with the French and Spanish Governments, relative to the purchase of the island of New Orleans, and the provinces of East and West Florida. The nature and importance of the measures contemplated, have induced us to act upon the subject with closed doors. You will, of consequence, consider this communication as confidential." [71] This was spoken before the campaigns of Ulm, Austerlitz and Jena. [72] The true reason for the non-circulation of gold was the erroneous valuation of that coin, which was not corrected until thirty years afterwards. [73] This speech, delivered in the Virginia Convention which ratified the Federal constitution, is the only full and perfect account of the transaction to which it refers that has ever been published. It refers to the design in the Congress of the confederation to give up the navigation of the Mississippi for 25 or 30 years in return for some commercial privileges from Spain--a design which Mr. Monroe was mainly instrumental in defeating, and for which he deserved still higher rewards than honor and gratitude. His reluctance to give the history of this transaction arose from its secret nature, the Congress of the confederation sitting upon it with closed doors, and the members being under injunctions not to disclose what was done. Its essentiality to a knowledge of the political history of the times must be apparent to all who read it. [74] The famous orator. [75] See _ante_, under date of December 22. [76] All the steps and proceedings which led to the acquisition of Louisiana (and the same occurred in the acquisition of Florida) are given in full, that it may be seen that this important negotiation, which was to involve an appropriation of money, had its foundation laid in the authority of the proper appropriating power--the House of Representatives; to which the purse-strings of the Union were specially confided. [77] Above forty years afterwards, to wit, in 1846, the Virginia part of the District was retroceded to that State. 
40499	----	BENTON'S ABRIDGMENT OF THE DEBATES OF CONGRESS. ABRIDGMENT OF THE DEBATES OF CONGRESS, FROM 1789 TO 1856. FROM GALES AND SEATON'S ANNALS OF CONGRESS; FROM THEIR REGISTER OF DEBATES; AND FROM THE OFFICIAL REPORTED DEBATES, BY JOHN C. RIVES. BY THE AUTHOR OF THE THIRTY YEARS' VIEW. VOL. I. NEW YORK: D. APPLETON & COMPANY, 346 & 348 BROADWAY. CHICAGO: S. C. GRIGGS & CO., 111 LAKE ST. 1857. ENTERED according to Act of Congress, in the year 1856, by D. APPLETON AND COMPANY, In the Clerk's Office of the District Court for the Southern District of New York. PREFACE. The title-page discloses the sources from which this abridgment is made, and shows them all to be authentic, and reliable,--well known to the public, and sanctioned by resolves of Congress. Of the latter of these authorities--"Gales and Seaton's Register of Debates," "The Congressional Globe and Appendix, by Blair and Rives," and the same afterwards by "John C. Rives"--it is not necessary to speak, further than to remind the reader, that they are original reports, made either by the publishers or their special reporters, and revised by the speakers, and accepted as authority by Congress; and therefore needing no historical elucidation to show their correctness. But of the first--"The Annals of Congress by Gales and Seaton"--being a compilation, a special, but brief notice is necessary to show the credit to which they are entitled. And first, of the qualifications of the compilers for their work. To education and talent, and a particular turn for political disquisition and history, they added, at the time, more than forty years' personal connection with the Debates of Congress, as reporters and publishers of the speeches and proceedings in that body. Both of these gentlemen reported, on extraordinary occasions; and both with great aptitude and capacity for the business, and Mr. Gales especially, (under whose particular care the compilation of the Annals was made,)--of whom Mr. Randolph, a most competent judge, was accustomed to say, that he was the most perfect reporter he had ever known--a perfection which resulted not merely from manual facility in noting down what was said, but from quickness and clearness of apprehension, and a full knowledge of the subject spoken upon.[1] To this capacity for the work, these gentlemen added peculiar advantages for knowing and reaching the sources of information. The father of one of them, and the father-in-law of the other,--(Mr. Joseph Gales, Senior,)--had been an early reporter of the Debates of Congress;--in the time of Washington and the first Mr. Adams,--and, of course, a collector and preserver of all contemporary reports. These came into their hands, with ample knowledge of all the sources from which further collections could be made. To these capabilities and advantages, were added the pride of character which exults in producing a perfect work;--and they spared neither pains nor cost to produce such a work--and succeeded. The following extracts from a letter of the late Mr. Justice Story, of the Supreme Court of the United States, dated January 14th, 1837--and from one from Mr. Justice McLean, still of that high court, dated 24th of February, 1843--sufficiently attest the value of the Compilation, and the excellence of its execution. Mr. Justice Story says: "I have examined these volumes with great attention, and I am entirely satisfied with the plan and execution of them. I have, for many years, deemed the publication of the Debates in Congress, interwoven as they should be, and as they are in your plan, with the proceedings explanatory of them, one of the most important and valuable enterprises for public patronage. In an historical view, it will reflect the strongest and best lights upon the nature and operations of the Government itself, its powers, its duties, and its policy. As a means of expounding and interpreting the Constitution itself, it can scarcely be over-estimated. When I was employed in the task of preparing my Commentaries on the Constitution I constantly had recourse to this source of information in all cases within my reach. I had occasion then deeply to regret, however, that many of my researches terminated in disappointment from there not being any complete collection of the debates in print, or at least none in any one repository, or without large chasms, which it was difficult if not impossible to supply. If any such collection had existed, I am satisfied that it would have enabled me to make my own work far more accurate, full, and satisfactory than it now is. The Parliamentary Debates of England have been long since published, and constitute, in a political and historical view, some of the most authentic and useful documents for statesmen and jurists which have ever issued from the press. They are an indispensable part of the library of every real British statesman. A similar publication of all the Debates in Congress would be, if possible, of more permanent and extensive value to us, since questions of constitutional law and general public policy are more frequent topics of public debate here than in England. Indeed, I do not well see how American statesmen, seeking a profound knowledge of the nature and operations of our Government, can well do without them. At all events, if published, they would and ought to be found in the library of every American statesman, lawyer, and judge, who should aspire to an exact or thorough knowledge of our Constitution, laws, or national policy." Mr. Justice McLean says: "I have read with much interest your proposal to publish the Debates in Congress from the adoption of the Constitution. This is an undertaking of great magnitude, and will require large expenditures: but the work will embody a mass of information in regard to the history and policy of the Government, which can be found nowhere else. There is no subject within the action of the Government, which will not be found discussed in these volumes. They will contain materials rich in facts and talent for the writer of history, and will reward the researches of all who may wish to acquire a thorough knowledge of our system of government. This work when completed will become, I think, more interesting and valuable to this country, than are the Parliamentary Debates in England. The questions considered, (from the nature of our Government, and especially in regard to our domestic relations,) are more diversified than the Debates in Parliament; and I have no doubt, that the general ability displayed in the American Congress, will not suffer in comparison with that of the British Parliament. Our statesmen and jurists will find in these Debates much to guide them in the performance of their public duties; for it is from the history of that time that knowledge is acquired for an enlightened public action. If our Government is to be handed down to those who come after us, these volumes will increase in value with the progress of time, and will be one of the richest memorials of our early enterprise and patriotism, and the best evidence of our national advancement." And to these opinions of these two eminent jurists of the value of these Annals, and the qualifications of the publishers for their task, and the merits of their work, is to be added the encouraging opinion of Mr. Madison, given at the commencement of the enterprise, in the year 1818,--near forty years ago,--when, in a letter to _Messrs._ Gales and Seaton, he said: "The work to which you have turned your thoughts, is one which justly claims for it _my_ favorable wishes. A legislative history of our country is of too much interest not to be at some day undertaken; and the longer it is postponed, the more difficult and deficient the execution becomes. In the event of your engaging in it, I shall cheerfully contribute any suggestions in my power as to the sources from which materials may be drawn; but I am not aware, at present, of any not likely to occur to yourselves." Such is the value which these eminent men place upon these annals of our earlier Congresses, and these annals embrace the whole period during which our Government was presided over by those who helped to make it--the whole period from Washington to Monroe inclusive--a period of thirty-five years, and covering more than half the time that our Government has existed. The two Justices of the Supreme Court who gave their opinion of the work, and who were then (as one of them still is) in the actual discharge of great public duties, have declared the personal benefit which they derived from the compilation--one of them (Mr. Justice Story) going so far as to say that his own work--the Commentaries upon the Constitution--(deemed faultless by others)--would have been "more accurate, full and satisfactory," if the Annals had been published before them. With such opinions in favor of the Annals, no more need be said to show their value to the rising generations; and in abridging them, the author feels that he is only making accessible to the community what is now inaccessible to it, on account of quantity and price; and useless (nearly), if accessible, on account of the obsolete or irrelevant matter which overlays and buries the useful. As late as the year 1840, the publishers of the Annals say, in a Memorial to Congress, that they had sold to individuals but twenty sets of their work; and the present enterprising and faithful publisher of the Congress Debates, (Mr. John C. Rives,) says he sells but some three or four sets a year of his valuable and voluminous work;--and these, not to individuals, but to institutions. It is the Congress subscription alone, that has enabled the publishers of all these works to bring them out; and no public money was ever more worthily applied: but still Congress cannot supply the community. Mr. Madison, in his letter of characteristic modesty to _Messrs._ Gales and Seaton, speaks of their (then) intended work, as one which justly claimed _his_ favorable wishes. And well it might! for nowhere, in all the just and impressive eulogiums which have been pronounced upon him, does he appear to such advantage as in his own modest, temperate, luminous, and patriotic speeches during his service in Congress--putting that new Government into operation, of which he was one of the founders, and giving to all its machinery, a smooth, clean, and harmonious working. And so of innumerable others--illustrious men, and his compatriots--national reputations in their day, but contracting into local names under the progress of time, for want of a record of their patriotic labors, of national circulation, and popular accessibility. Of that character, it is the desire of the author to make this Abridgment. It is to him a labor of love and of pride--resuscitating the patriotic dead, putting them in scene again, passing them in long procession over an extended domain--no one skipped, and each in his place, with the best of his works in his hand. It is a work of justice to them, and may be of advantage to the present age, and to posterity, by reproducing for study and imitation, the words and conduct of the wise, just, modest, patriotic, intelligent, and disinterested men, who carried their country through a momentous revolution--moulded that country into one brotherly Union--and then put the Government they had formed into operation, in the same fraternal spirit of "_amity, mutual deference and concession_," in which they had made it. INTRODUCTION. The debates of Congress have been accruing for near seventy years, and fill more than an hundred volumes, and cannot be purchased for less than $500, nor advantageously used, on account of the quantity of superfluous matter which they contain. They are printed in full by Congress, and ought to be so, and a small distribution is made among the members; but this distribution cannot reach the community, and would be nearly useless if it did, from the quantity of obsolete, local and transient matter which overloads them. In the mean time, these debates contain the history of the working of our Government from its foundation--preserve and hand down to posterity the wisdom of ages--show what has been done, and how it was done--and shed light upon the study of all impending questions; for there is not a question of the day, and will not be while the Government continues, which will not be illustrated by something previously said in these debates. All works consisting of periodical accumulations require periodical abridgment, in which, being relieved of what is superfluous, the residuum becomes more valuable from the disencumbrance--of easier use to the reader--and more accessible to the community, from the diminution of price and quantity. Even the reports of the Supreme Court of the United States, though comparatively free from redundant or obsolete matter, have undergone abridgment--three volumes reduced to one--and become more valuable from the reduction. The same may be done with these debates, and with a far greater license of reduction, from the very nature of popular debating. Some fifteen or sixteen octavo volumes, double columns, are expected to contain all that retains a surviving interest in the (more than) one hundred volumes, now surcharged with the full debates. The abridgment will not be restricted to the speeches of the celebrated orators, but extend to those of the business men, and to the plainest speakers--who are often the members who give the most useful information. Full speeches are not expected to be given, there being none, after a short time, which do not contain much matter that has lost its interest. Many entire heads of reported proceedings and discussions would be omitted: as--The morning presentation of petitions, often the same for ten or twenty years, and presented in both Houses at the same time: discussion on private bills, which have no general interest: mere personalities: the endless repetition of yeas and nays, sometimes recorded an hundred times in contests about the same bill, when three or four sets would be sufficient to show the opinion of every member upon every material point: repetitions of speeches, for it is impossible that a member speaking for ten or twenty sessions on the same subject, (tariff, internal improvement, national bank, &c.) should not repeat the same thing over and over again. The work is intended to be national, such as would commend itself to the study, and come within the reach, of all who aspire to a share in the public affairs, either State or Federal; or who wish to understand the history and working of their own Government. It is the only way in which the wisdom of the earlier generation of our statesmen who put the Government into operation--the Madisons, Gallatins, John Marshalls, William B. Giles, the Fisher Ames, Roger Shermans, &c.--can be made known to the present or future ages; and it is the best way in which the speeches of those who have lived in our own day, even the most eminent, can be diffused. For the speeches of no one, published in mass and alone, can have more than a local circulation; while judicious selections from a whole debate, enlivened by the vivacity of contention, going into a general work of this kind, must have a general circulation, and carry the name of the speaker, and the best of his speaking, into every part of the Union. Some notes, or commentaries, will be added by the author, discriminated from the text, to mark great starting, or turning points, in our legislative history, with a view to assist the reader in making the practical applications which give utility to knowledge. For example: At the beginning of the first tariff debate in the first session of the first Congress, he will show that Mr. Madison compressed into twenty-two short lines, of eight or nine words each, all the principles of impost and tonnage duties which have governed all wise legislation upon the two subjects from that time to the present--namely: Specific duties the rule--_ad valorems_ the exception: revenue the object--incidental encouragement to home industry the incident: specifics on all the leading and staple articles--_ad valorems_ on the inferior remainder: discrimination between articles of luxury and necessity, so as to put the burthen on the former--and between articles made, or not made, at home, so as to give encouragement to the home article: and all these duties moderate, so as not to shackle trade or agriculture. These were his principles on impost duties. Those on tonnage consisted of discriminations in favor of our own ships, and in favor of nations having treaties of commerce with us, so as to encourage our own ship-building and navigation, and also to stimulate all nations to make commercial treaties with us. And thus, every object of impost legislation was provided for:--revenue for the Government, encouragement to home industry, exemption from burthen to trade and agriculture. Then, at the end of that debate, (which began in April, and ended in May,) it will be shown that a rate of duties was established, corresponding with these principles--all moderate, and adapted each to its object: five per centum on the lowest class of _ad valorems_, seven and a half on the next, and fifteen for the highest, and it of luxuries. The specific duties, applicable to the mass of the importations, at the same low rate; and this low rate, on the small importation of that time, and with the economy of that time, producing seven times the amount of revenue necessary for the "_support_" of the Government! leaving six sevenths to go to the public debt and Indian wars. The same rates of duty, with the same economy, ought to be equally sufficient now upon a sevenfold importation of dutiable goods. The Emperor Justinian, in compiling his Institutes, commended their study to the liberal-minded youth of the empire who aspired to employment in the government; for that emperor, although a great and victorious general, yet placed the arts of peace and government above the exploits of war, and wished to see law and order, more than arms, studied and cultivated in his dominion. The great Emperor Napoleon had the same appreciation of legal and civil studies; and hence the Four Codes, at the digest of which he personally assisted, and the conception and execution of which do so much honor to his memory. In our own government the career of public employment is open to all, and should be prepared for by all who aspire to enter it. Of elementary political works we have many, and excellent; but most of them only teach principles, and that abstractly, without practice. Practical works are wanted to complete the study, and of these the most ample and least ungrateful may be a well-considered and impartial abridgment of the Debates of Congress. And here the Author discharges an obligation of gratitude and justice to the earlier generation of our statesmen. He owes what he is to them. His political principles were learnt in their school--his knowledge obtained from their works--his patriotism confirmed by their example--his love of the Union exalted by their teaching. THE AUTHOR. WASHINGTON CITY, May, 1856. FIRST CONGRESS.--FIRST SESSION. HELD AT THE CITY OF NEW YORK, MARCH 4 TO SEPTEMBER 29, 1789. PRESIDENT OF THE UNITED STATES,--GEORGE WASHINGTON. PROCEEDINGS[2] IN THE SENATE. WEDNESDAY, March 4, 1789. This being the day for the meeting of the new Congress, the following members of the Senate appeared and took their seats:[3] From New Hampshire, JOHN LANGDON and PAINE WINGATE. From Massachusetts, CALEB STRONG. From Connecticut, WILLIAM S. JOHNSON and OLIVER ELLSWORTH. From Pennsylvania, WILLIAM MACLAY and ROBERT MORRIS. From Georgia, WILLIAM FEW. The members present not being a quorum, they adjourned from day to day, until WEDNESDAY, March 11. When the same members being present as on the 4th instant, it was agreed that a circular should be written to the absent members, requesting their immediate attendance. THURSDAY, March 12. No additional members appearing, the members present adjourned from day to day, until WEDNESDAY, March 18. When no additional members appearing, it was agreed that another circular should be written to eight of the nearest absent members, particularly desiring their attendance, in order to form a quorum. THURSDAY, March 19. WILLIAM PATERSON, from New Jersey, appeared and took his seat. FRIDAY, March 20. No additional member appeared. SATURDAY, March 21. RICHARD BASSETT, from Delaware, appeared and took his seat. A sufficient number of members to form a quorum not appearing, the members present adjourned from day to day, until SATURDAY, March 28. JONATHAN ELMER, from New Jersey, appeared and took his seat. No other member appearing, an adjournment took place from day to day, until MONDAY, April 6. RICHARD HENRY LEE, from Virginia, then appearing, took his seat and formed a quorum of the whole Senators of the United States. The credentials of the members present being read and ordered to be filed, the Senate proceeded, by ballot, to the choice of a President for the sole purpose of opening and counting the votes for President of the United States. JOHN LANGDON was elected. _Ordered_, That Mr. ELLSWORTH inform the House of Representatives that a quorum of the Senate is formed; that a President is elected for the sole purpose of opening the certificates, and counting the votes of the electors of the several States, in the choice of a President and Vice President of the United States; and that the Senate is now ready, in the Senate Chamber, to proceed in the presence of the House, to discharge that duty; and that the Senate have appointed one of their members to sit at the clerk's table, to make a list of the votes as they shall be declared; submitting it to the wisdom of the House to appoint one or more of their members for the like purpose. Mr. ELLSWORTH reported that he had delivered the message; and Mr. BOUDINOT, from the House of Representatives, informed the Senate that the House is ready forthwith to meet them, to attend the opening and counting of the votes of the electors of the President and Vice President of the United States. The Speaker and the members of the House of Representatives attended in the Senate Chamber; and the President elected for the purpose of counting the votes, declared that the Senate and House of Representatives had met, and that he, in their presence, had opened and counted the votes of the electors for President and Vice President of the United States, which were as follows: [Transcriber's Note: Legend Created to make table fit.] A = George Washington, Esq. B = John Adams, Esq. C = Samuel Huntingdon, Esq. D = John Jay, Esq. E = John Hancock, Esq. F = Robert H. Harrison, Esq. G = George Clinton, Esq. H = John Rutledge, Esq. I = John Milton, Esq. J = James Armstrong, Esq. K = Edward Telfair, Esq. L = Benjamin Lincoln, Esq. STATES. A B C D E F G H I J K L New Hampshire, 5 5 Massachusetts, 10 10 Connecticut, 7 5 2 New Jersey, 6 1 .. 5 Pennsylvania, 10 8 .. .. 2 Delaware, 3 .. .. 3 Maryland, 6 .. .. .. .. 6 Virginia, 10 5 .. 1 1 .. 3 South Carolina, 7 .. .. .. 1 .. .. 6 Georgia, 5 .. .. .. .. .. .. .. 2 1 1 1 Total, 69 34 2 9 4 6 3 6 2 1 1 1 Whereby it appeared that GEORGE WASHINGTON, Esq. was elected President, and JOHN ADAMS, Esq. Vice President of the United States of America. Mr. MADISON, from the House of Representatives, thus addressed the Senate: MR. PRESIDENT: I am directed by the House of Representatives to inform the Senate, that the House have agreed that the notifications of the election of the President and of the Vice President of the United States, should be made by such persons, and in such manner, as the Senate shall be pleased to direct. And he withdrew. Whereupon, the Senate appointed CHARLES THOMSON, Esq. to notify GEORGE WASHINGTON, Esq. of his election to the office of President of the United States of America, and Mr. SYLVANUS BOURN, to notify JOHN ADAMS, Esq. of his election to the office of Vice President of the said United States. A letter was received from James Duane, Esq. enclosing resolutions of the mayor, aldermen, and commonalty, of the city of New York, tendering to Congress the use of the City Hall. James Mathews was elected doorkeeper. TUESDAY, April 7. Messrs. ELLSWORTH, PATERSON, MACLAY, STRONG, LEE, BASSETT, FEW, and WINGATE, were appointed a committee to bring in a bill for organizing the Judiciary of the United States. Messrs. ELLSWORTH, LEE, STRONG, MACLAY, and BASSETT, were appointed a committee to prepare rules for the government of the two Houses in cases of conference, and to take under consideration the manner of electing chaplains, and to confer thereupon with a committee of the House of Representatives. The same committee were also to prepare rules for conducting the business of the Senate. WEDNESDAY, April 8. The Senate proceeded to ballot for a Secretary, and SAMUEL ALYNE OTIS, Esq. was elected. Cornelius Maxwell was appointed messenger. THURSDAY, April 9. Messrs. LANGDON, JOHNSON, and FEW, were appointed a committee to make arrangements for receiving the President, and were empowered to confer with any committee of the House of Representatives that may be appointed for that purpose. MONDAY, April 13. RALPH IZARD, from South Carolina, CHARLES CARROLL, from Maryland, and GEORGE REED, from Delaware, appeared and took their seats. The report of the committee to prepare rules for conducting the business of the Senate was read, and ordered to lie for consideration. Messrs. JOHNSON, IZARD, and MACLAY, were appointed a committee to confer with any committee appointed on the part of the House of Representatives, upon the future disposition of the papers in the office of the late Secretary of Congress, and report thereon. The committee appointed to make arrangements for receiving the President, were directed to settle the manner of receiving the Vice President also. Mr. CARROLL and Mr. IZARD were added to the Judiciary Committee. TUESDAY, April 14. TRISTRAM DALTON, from Massachusetts, appeared and took his seat. A letter was written to the mayor of the city of New York, by the President of the Senate, acknowledging the respect shown to the Government, and accepting of the offer made by him of the City Hall for the use of Congress. MONDAY, April 20. JOHN HENRY, from Maryland, and JAMES GUNN, from Georgia, appeared and took their seats. Messrs. STRONG and IZARD were appointed a committee to wait on the Vice President, and conduct him to the Senate Chamber. TUESDAY, April 21. The committee appointed to conduct the Vice President to the Senate Chamber, executed their commission, and Mr. LANGDON, the Vice President _pro tempore_, meeting the Vice President on the floor of the Senate Chamber, addressed him as follows. SIR: I have it in charge from the Senate, to introduce you to the chair of this House; and, also, to congratulate you on your appointment to the office of Vice President of the United States of America. [After which Mr. Langdon conducted the Vice President to the chair, when the Vice President addressed the Senate in a speech of congratulation on the successful formation of the Federal Union, the adoption of the Federal Constitution, and the auspicious circumstances under which the new government came into operation, under the presidency of him who had led the American armies to victory, and conducted by those who had contributed to achieve Independence.] FRIDAY, April 24. On motion, to reconsider the commission of the committee appointed the 23d instant, to report what titles shall be annexed to the offices of President and Vice President. Passed in the affirmative. On motion, that the following words, "What titles it will be proper to annex to the offices of President and of Vice President of the United States; if any other than those given in the Constitution," be struck out. Passed in the negative. On motion, that the words "style or" before the word "title," be added. Passed in the affirmative. SATURDAY, April 25. The Right Reverend SAMUEL PROVOST was elected Chaplain. A letter from CHARLES THOMSON, Esq., dated the 24th of April, 1789, directed to the President of the Senate, purporting his having delivered to General WASHINGTON the certificate of his being elected President of the United States, was read, and ordered to be filed. The committee appointed to consider of the time, place, and manner, in which, and of the person by whom, the oath prescribed by the Constitution shall be administered to the President of the United States, and to confer with a committee of the House appointed for that purpose, report: That the President hath been pleased to signify to them, that at any time or place which both Houses may think proper to appoint, and any manner which shall appear most eligible to them, will be convenient and acceptable to him; that requisite preparations cannot probably be made before Thursday next; that the President be on that day formally received by both Houses in the Senate Chamber; that the Representatives' Chamber being capable of receiving the greater number of persons, that, therefore, the President do take the oath in that place, and in the presence of both Houses. That, after the formal reception of the President in the Senate Chamber, he be attended by both Houses to the Representatives' Chamber, and that the oath be administered by the Chancellor of the State of New York. The committee farther report it as their opinion, that it will be proper that a committee of both Houses be appointed to take order for conducting the business. Read and accepted. Whereupon, Mr. LEE, Mr. IZARD, and Mr. DALTON, on the part of the Senate, together with a committee that may be appointed on the part of the House of Representatives, were empowered to take order for conducting the business. An order of the House of Representatives, concurring in the appointment of a committee on their part to confer with a committee appointed on the 24th instant, on the part of the Senate, to consider and report, "what style, &c., it will be proper to annex to the offices of President and Vice President," was read, by which it appeared, that Mr. BENSON, Mr. AMES, Mr. MADISON, Mr. CARROLL, and Mr. SHERMAN, were appointed on the part of the House. MONDAY, April 27. The committee appointed to take order for conducting the ceremonial of the formal reception, &c., of the President, reported: That it appears to them more eligible that the oath should be administered to the President in the outer gallery adjoining the Senate Chamber, than in the Representatives' Chamber, and therefore, submit to the respective Houses the propriety of authorizing their committee to take order as to the place where the oath shall be administered to the President, the resolution of Saturday assigning the Representatives' Chamber as the place, notwithstanding. Read and accepted. _Resolved_, That after the oath shall have been administered to the President, he, attended by the Vice President, and members of the Senate, and House of Representatives, proceed to St. Paul's Chapel, to hear divine service, to be performed by the Chaplain of Congress already appointed. Sent to the House of Representatives for concurrence. TUESDAY, April 28. Received from the House of Representatives, the report of a joint committee on the ceremonial to be observed in administering the oath, &c., to the President; and a bill to regulate the time and manner of administering certain oaths. The report was read and ordered to lie on the table; and the bill received its first reading. THURSDAY, April 30. Mr. LEE, in behalf of the committee appointed to take order for conducting the ceremonial of the formal reception, &c., of the President of the United States, having informed the Senate that the same was adjusted, the House of Representatives were notified that the Senate were ready to receive them in the Senate Chamber, to attend the President of the United States, while taking the oath required by the Constitution. Whereupon, the House of Representatives, preceded by their Speaker, came into the Senate Chamber, and took the seats assigned them, and the joint committee, preceded by their chairman, agreeably to order, introduced the President of the United States to the Senate Chamber, where he was received by the Vice President, who conducted him to the chair, when the Vice President informed him, that "the Senate, and House of Representatives of the United States, were ready to attend him to take the oath required by the Constitution, and that it would be administered by the Chancellor of the State of New York." To which the President replied, he was ready to proceed; and being attended to the gallery in front of the Senate Chamber, by the Vice President and Senators, the Speaker and Representatives, and the other public characters present, the oath was administered. After which, the Chancellor proclaimed, "_Long live George Washington, President of the United States_." The PRESIDENT, having returned to his seat, after a short pause arose, and addressed the Senate and House of Representatives as follows:[4] _Fellow-Citizens of the Senate, and of the House of Representatives:_ Among the vicissitudes incident to life, no event could have filled me with greater anxieties than that of which the notification was transmitted by your order, and received on the 14th day of the present month. On the one hand, I was summoned by my country, whose voice I can never hear but with veneration and love, from a retreat which I had chosen with the fondest predilection, and, in my flattering hopes, with an immutable decision, as the asylum of my declining years: a retreat which was rendered every day more necessary, as well as more dear to me, by the addition of habit to inclination, and of frequent interruptions in my health, to the gradual waste committed on it by time. On the other hand, the magnitude and difficulty of the trust to which the voice of my country called me, being sufficient to awaken in the wisest and most experienced of her citizens a distrustful scrutiny into his qualifications, could not but overwhelm with despondence one, who, inheriting inferior endowments from nature, and unpractised in the duties of civil administration, ought to be peculiarly conscious of his own deficiencies. In this conflict of emotions, all I dare aver is, that it has been my faithful study to collect my duty from a just appreciation of every circumstance by which it might be effected. All I dare hope is that if, in executing this task, I have been too much swayed by a grateful remembrance of former instances, or by an affectionate sensibility to this transcendent proof of the confidence of my fellow-citizens, and have thence too little consulted my incapacity as well as disinclination for the weighty and untried cares before me, my error will be palliated by the motives which misled me, and its consequences be judged by my country, with some share of the partiality in which they originated. * * * * * To the preceding observations I have one to add, which will be most properly addressed to the House of Representatives. It concerns myself, and will, therefore, be as brief as possible. When I was first honored with a call into the service of my country, then on the eve of an arduous struggle for its liberties, the light in which I contemplated my duty required that I should renounce every pecuniary compensation. From this resolution I have in no instance departed. And being still under the impressions which, produced it, I must decline, as inapplicable to myself, any share in the personal emoluments which may be indispensably included in a permanent provision for the executive department; and must accordingly pray that the pecuniary estimates for the station in which I am placed may, during my continuance in it, be limited to such actual expenditures as the public good may be thought to require. Having thus imparted to you my sentiments, as they have been awakened by the occasion which brings us together, I shall take my present leave; but not without resorting once more to the benign Parent of the human race, in humble supplication, that since He has been pleased to favor the American people with opportunities for deliberating in perfect tranquillity, and dispositions for deciding with unparalleled unanimity on a form of Government for the security of their union, and the advancement of their happiness, so his divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures, on which the success of this Government must depend. G. WASHINGTON. _April 30, 1789._ The President, the Vice President, the Senate, and House of Representatives, &c., then proceeded to St. Paul's Chapel, where divine service was performed by the chaplain of Congress, after which the President was reconducted to his house by the committee appointed for that purpose. The Vice President and Senate returned to the Senate Chamber; and, Upon motion, unanimously agreed, That a committee of three should be appointed to prepare an answer to the President's speech. Mr. JOHNSON, Mr. PATERSON, and Mr. CARROLL, were elected. THURSDAY, May 7. The committee appointed to confer with such committee as might be appointed on the part of the House of Representatives, to report what style or titles it will be proper to annex to the offices of President and of Vice President of the United States, if any other than those given in the Constitution, reported. Which report was ordered to lie for consideration. The committee appointed to prepare an answer to the President's speech, delivered to the Senate and House of Representatives of the United States, reported as follows: SIR: We, the Senate of the United States, return you our sincere thanks for your excellent speech delivered to both Houses of Congress; congratulate you on the complete organization of the Federal Government; and felicitate ourselves and our fellow-citizens on your elevation to the office of President; an office highly important by the powers constitutionally annexed to it, and extremely honorable from the manner in which the appointment is made. The unanimous suffrage of the elective body in your favor, is peculiarly expressive of the gratitude, confidence, and affection of the citizens of America, and is the highest testimonial at once of your merit and their esteem. We are sensible, sir, that nothing but the voice of your fellow-citizens could have called you from a retreat, chosen with the fondest predilection, endeared by habit, and consecrated to the repose of declining years. We rejoice, and with us all America, that, in obedience to the call of our common country, you have returned once more to public life. In you all parties confide; in you all interests unite; and we have no doubt that your past services, great as they have been, will be equalled by your future exertions; and that your prudence and sagacity as a statesman will tend to avert the dangers to which we are exposed, to give stability to the present Government, and dignity and splendor to that country, which your skill and valor, as a soldier, so eminently contributed to raise to independence and empire. When we contemplate the coincidence of circumstances, and wonderful combination of causes, which gradually prepared the people of this country for independence; when we contemplate the rise, progress, and termination of the late war, which gave them a name among the nations of the earth; we are, with you, unavoidably led to acknowledge and adore the great Arbiter of the universe, by whom empires rise and fall. A review of the many signal instances of divine interposition in favor of this country claims our most pious gratitude; and permit us, sir, to observe, that, among the great events which have led to the formation and establishment of a Federal Government, we esteem your acceptance of the office of President as one of the most propitious and important. In the execution of the trust reposed in us, we shall endeavor to pursue that enlarged and liberal policy to which your speech so happily directs. We are conscious that the prosperity of each State is inseparably connected with the welfare of all, and that, in promoting the latter, we shall effectually advance the former. In full persuasion of this truth, it shall be our invariable aim to divest ourselves of local prejudices and attachments, and to view the great assemblage of communities and interests committed to our charge with an equal eye. We feel, sir, the force, and acknowledge the justness of the observation, that the foundation of our national policy should be laid in private morality. If individuals be not influenced by moral principles, it is in vain to look for public virtue; it is, therefore, the duty of legislators to enforce, both by precept and example, the utility, as well as the necessity, of a strict adherence to the rules of distributive justice. We beg you to be assured that the Senate will, at all times, cheerfully co-operate in every measure which may strengthen the Union, conduce to the happiness, or secure and perpetuate the liberties of this great confederated republic. We commend you, sir, to the protection of Almighty God, earnestly beseeching him long to preserve a life so valuable and dear to the people of the United States; and that your administration may be prosperous to the nation, and glorious to yourself. Read and accepted; and _Ordered_, That the Vice President should affix his signature to the address, in behalf of the Senate. FRIDAY, May 8. The report of the committee appointed to determine "What style or title it will be proper to annex to the offices of President and Vice President of the United States, if any other than those given in the Constitution;" and to confer with a committee of the House of Representatives appointed for the same purpose, was considered, and disagreed to. The question was taken, "Whether the President of the United States shall be addressed by the title of _His Excellency_?" and it passed in the negative. On motion that a committee of three be appointed to consider and report under what title it will be proper for the Senate to address the President of the United States, Mr. LEE, Mr. ELLSWORTH, and Mr. JOHNSON, were elected. SATURDAY, May 9. A message from the House of Representatives informed the Senate that they had accepted the report of the committee appointed to consider what style or title it will be proper to annex to the offices of President and Vice President of the United States, if any other than those given in the Constitution. _Ordered_, That Mr. FEW, Mr. MACLAY, and Mr. STRONG, be a committee to view the apartments in the City Hall, and to confer with any committee that may be appointed by the House of Representatives for that purpose, and report how the same shall be appropriated. The committee appointed to consider under what title it will be proper for the Senate to address the President of the United States, reported; the consideration of which was postponed until Monday next. The Secretary was charged with a message to the House of Representatives, with the order of Senate passed the 7th instant, on the mode adopted by the Senate in receiving communications from that House. _Ordered_, That Mr. LEE, Mr. ELLSWORTH, and Mr. JOHNSON, be a committee to confer with any committee to be appointed by the House of Representatives, on the difference of opinion now subsisting between the two Houses, respecting the title of the President of the United States; and, on motion for reconsideration, the instruction to the committee was agreed to, as follows: "That they consider and report under what title it will be proper for the President of the United States in future to be addressed, and confer thereon with such committee as the House of Representatives may appoint for that purpose." The Secretary carried to the House of Representatives the appointment of a committee, on the part of the Senate, to view the rooms in the City Hall, and to confer upon their appropriation; The rejection of the report of the committee appointed to consider what style, &c., it will be proper to annex to the offices of President and of Vice President; And the appointment of a committee on the part of the Senate to confer on a title under which it will be proper to address the President of the United States. MONDAY, May 11. _Ordered_, That the consideration of the report of the committee upon "the title by which it will be proper for the Senate to address the President," be postponed until Tuesday next. TUESDAY, May 12. _Ordered_, That the committee appointed the 9th of May, to consider "by what title it will be proper for the Senate to address the President of the United States", be instructed to confer with the committee of the House of Representatives, agreeably to the proposition in their message of this day. A motion for the committee, appointed to address the President, to proceed, was postponed to Thursday next. THURSDAY, May 14. The committee, appointed the 9th instant, to determine "under what title it will be proper for the Senate to address the President," and to confer with a committee of the House of Representatives "upon the disagreeing votes of the Senate and House," informed the Senate that they had conferred with a committee of the House of Representatives, but could not agree upon a report. The committee appointed the 9th instant, "to consider and report under what title it will be proper for the Senate to address the President of the United States of America," reported: That, in the opinion of the committee, it will be proper thus to address the President: "_His Highness, the President of the United States of America, and Protector of their Liberties_." Which report was postponed; and the following resolve was agreed to, to wit: From a decent respect for the opinion and practice of civilized nations, whether under monarchical or republican forms of Government, whose custom is to annex titles of respectability to the office of their Chief Magistrate; and that, on intercourse with foreign nations, a due respect for the majesty of the people of the United States may not be hazarded by an appearance of singularity, the Senate have been induced to be of opinion, that it would be proper to annex a respectable title to the office of President of the United States; but, the Senate, desirous of preserving harmony with the House of Representatives, where the practice lately observed in presenting an address to the President was without the addition of titles, think it proper, for the present, to act in conformity with the practice of that House: therefore, _Resolved_, That the present address be "_To the President of the United States_," without addition of title. A motion was made to strike out the preamble as far as the words "but the Senate;" which passed in the negative: And on motion for the main question, it passed in the affirmative. The committee appointed to consider and report a mode of carrying into effect the provision in the second clause of the third section of the first article of the Constitution, reported; Whereupon, _Resolved_, That the Senators be divided into three classes; The first to consist of Mr. Langdon, Mr. Johnson, Mr. Morris, Mr. Henry, Mr. Izard, and Mr. Gunn; The second of Mr. Wingate, Mr. Strong, Mr. Paterson, Mr. Bassett, Mr. Lee, Mr. Butler, and Mr. Few; And the third of Mr. Dalton, Mr. Ellsworth, Mr. Elmer, Mr. Maclay, Mr. Read, Mr. Carroll, and Mr. Grayson. That three papers of an equal size, numbered 1, 2, and 3, be, by the Secretary, rolled up and put into a box, and drawn by Mr. Langdon, Mr. Wingate, and Mr. Dalton, in behalf of the respective classes, in which each of them are placed; and that the classes shall vacate their seats in the Senate, according to the order of numbers drawn for them, beginning with No. 1. And that, when Senators shall take their seats from States that have not yet appointed Senators, they shall be placed by lot in the foregoing classes, but in such manner as shall keep the classes as nearly equal as may be in numbers. The committee appointed to confer with a committee of the House of Representatives, in preparing proper rules to be established for the enrolment, &c. of the acts of Congress, reported; which report was ordered to lie for consideration. _Ordered_, That the committee appointed to draft an answer to the President's speech, wait on him, and request him to appoint the time when it will be agreeable to receive the address of the Senate, at his own house. FRIDAY, May 15. The committee appointed to draft an answer to the President's speech further reported; whereupon it was _Agreed_, That the Senate should wait on the President at his own house on Monday next, at a quarter after 11 o'clock, and that the Vice President then present the address of the Senate, as agreed to on the 7th instant. The Senate proceeded to determine the classes, agreeably to the resolve of yesterday, on the mode of carrying into effect the provision of the second clause of the third section of the first article of the Constitution; and the numbers being drawn, the classes were determined as follows: Lot No. 1, drawn by Mr. Dalton, contained Mr. Dalton, Mr. Ellsworth, Mr. Elmer, Mr. Maclay, Mr. Read, Mr. Carroll, and Mr. Grayson; whose seats shall, accordingly, be vacated in the Senate at the expiration of the second year. Lot No. 2. drawn by Mr. Wingate, contained Mr. Wingate, Mr. Strong, Mr. Paterson, Mr. Bassett, Mr. Lee, Mr. Butler, and Mr. Few; whose seats shall, accordingly, be vacated in the Senate at the expiration of the fourth year. Lot No. 3, drawn by Mr. Langdon, contained Mr. Langdon, Mr. Johnson, Mr. Morris, Mr. Henry, Mr. Izard, and Mr. Gunn; whose seats shall, accordingly, be vacated in the Senate at the expiration of the sixth year. MONDAY, May 18. Agreeably to the order of the 15th instant, the Senate waited on the President of the United States at his own house, when the Vice President, in their name, delivered to the President the address agreed to on the 7th instant. To which the President of the United States was pleased to make the following reply: GENTLEMEN: I thank you for your address, in which the most affectionate sentiments are expressed in the most obliging terms. The coincidence of circumstances which led to this auspicious crisis, the confidence reposed in me by my fellow-citizens, and the assistance I may expect from counsels which will be dictated by an enlarged and liberal policy, seem to presage a more prosperous issue to my administration than a diffidence of my abilities had taught me to anticipate. I now feel myself inexpressibly happy in a belief that Heaven, which has done so much for our infant nation, will not withdraw its providential influence before our political felicity shall have been completed, and in a conviction that the Senate will at all times co-operate in every measure which may tend to promote the welfare of this confederated republic. Thus supported by a firm trust in the great Arbiter of the universe, aided by the collective wisdom of the Union, and imploring the divine benediction on our joint exertions in the service of our country, I readily engage with you in the arduous but pleasing task of attempting to make a nation happy. G. WASHINGTON. THURSDAY, May 21. WILLIAM GRAYSON, from Virginia, appeared and took his seat. _Resolved_, That all bills on a second reading shall be considered by the Senate in the same manner as if the Senate were in a committee of the whole, before they shall be taken up and proceeded on by the Senate, agreeably to the standing rules, unless otherwise ordered. MONDAY, May 25. The Senate to-day, for the first time, entered upon executive business, having received from the President of the United States a communication covering a report from the Secretary of War, on the negotiations of the Governor of the Western Territory with certain northern and north-western Indians, and the treaties made in consequence thereof at Fort Harmar, on the 9th of January, 1789, which was read, and ordered to lie on the table. THURSDAY, May 28. The Senate proceeded in the consideration of the bill for laying a duty on goods, wares and merchandises imported into the United States; and, after debate, adjourned. WEDNESDAY, June 3. _Ordered_, That Mr. LANGDON administer the oath to the Vice President; which was done accordingly. And the Vice President administered the oath according to law, to the following members: to Messrs. LANGDON, WINGATE, STRONG, DALTON, JOHNSON, ELLSWORTH, PATERSON, MACLAY, MORRIS, READ, BASSETT, CARROLL, HENRY, LEE, GRAYSON, IZARD, FEW, GUNN. The same oath was, by the Vice President, administered to the Secretary, together with the oath of office. MONDAY, June 8. PIERCE BUTLER, from South Carolina, appeared and took his seat. The Vice President administered the oath to Mr. Butler. TUESDAY, June 16. The Senate entered on executive business. A communication from the President informed them that Mr. JEFFERSON wished to return home, and he proposed WILLIAM SHORT, Esq. to take his place as minister to France. Laid on the table. WEDNESDAY, June 17. The Senate went into executive business. They examined into the fitness of Mr. SHORT to supply the place of Mr. JEFFERSON, but came to no conclusion. THURSDAY, June 18. The Senate went into executive business, and confirmed the appointment of Mr. SHORT to take charge of our affairs at the court of France, during the absence of the minister. THURSDAY, June 25. The Senate proceeded to the consideration of the bill for establishing an Executive Department, to be denominated the Department of Foreign Affairs; which was read the first time, and ordered to lie for consideration. FRIDAY, July 17. On motion, that, on the final question upon a bill or resolve, any member shall have a right to enter his protest or dissent on the journal, with reasons in support of such dissent, provided the same be offered within two days after the determination on such final question: Passed in the negative. TUESDAY, July 21. The Senate entered on executive business, and _Ordered_, That the Secretary of Foreign Affairs attend the Senate to-morrow, and bring with him such papers as are requisite to give full information relative to the consular convention between France and the United States. WEDNESDAY, July 22. The Senate were to-day mostly engaged in executive business. The Secretary of Foreign Affairs attended, agreeably to order, and made the necessary explanations; and the following resolution was entered into.[5] SATURDAY, July 25. RUFUS KING, from New York, appeared, and took his seat. MONDAY, July 27. PHILIP SCHUYLER, from New York, appeared, and took his seat. TUESDAY, July 28. On motion, the Senators from the State of New York proceeded to draw lots for their classes, in conformity to the resolve of the 14th of May; and two lots, No. 3, and a blank, being, by the Secretary, rolled up and put into the box, Mr. SCHUYLER drew blank; and Mr. KING having drawn No. 3, his seat shall accordingly be vacated in the Senate at the expiration of the sixth year. The Secretary proceeded to put two other lots into the box, marked Nos. 1 and 2; and Mr. SCHUYLER having drawn lot No. 1, his seat shall accordingly be vacated in the Senate at the expiration of the second year. MONDAY, August 3. The Senate entered on executive business. The President communicated to them a list of about one hundred appointments as collectors, naval officers, and surveyors. The Senate advised and consented to about one-half the list; the rest lay till to-morrow. TUESDAY, August 4. A message from the House of Representatives brought up a bill for making compensation to the President and Vice President of the United States, and desired the concurrence of the Senate therein; Together with the appointment of Messrs. WADSWORTH, CARROLL, and HARTLEY, a committee, to join with a committee of the Senate to be appointed for the purpose, "to consider of and report when it will be convenient and proper that an adjournment of the present session of Congress should take place; and to consider and report such business, now before Congress, necessary to be finished before the adjournment, and such as may be conveniently postponed to the next session; and, also, to consider and report such matters, not now before Congress, but which it will be necessary should be considered and determined by Congress before an adjournment." The Senate again entered on executive business, and advised and confirmed all the remainder of the list of appointments presented yesterday, one excepted. FRIDAY, August 7. The Senate, in the absence of the Vice President, proceeded to elect a President _pro tempore_; and the votes being collected and counted, the Honorable JOHN LANGDON was unanimously appointed. A message from the President of the United States, by General Knox: _Gentlemen of the Senate:_ The business which has hitherto been under the consideration of Congress has been of so much importance, that I was unwilling to draw their attention from it to any other subject. But the disputes which exist between some of the United States and several powerful tribes of Indians, within the limits of the Union, and the hostilities which have, in several instances, been committed on the frontiers, seem to require the immediate interposition of the General Government. I have, therefore, directed the several statements and papers which have been submitted to me on this subject, by General Knox, to be laid before you for your information. While the measures of Government ought to be calculated to protect its citizens from all injury and violence, a due regard should be extended to those Indian tribes whose happiness, in the course of events, so materially depends on the national justice and humanity of the United States. If it should be the judgment of Congress that it would be most expedient to terminate all differences in the southern district, and to lay the foundation for future confidence, by an amicable treaty with the Indian tribes in that quarter, I think proper to suggest the consideration of the expediency of instituting a temporary commission for that purpose, to consist of three persons, whose authority should expire with the occasion. How far such a measure, unassisted by posts, would be competent to the establishment and preservation of peace and tranquillity on the frontiers, is also a matter which merits your serious consideration. GEO. WASHINGTON. NEW YORK, _August 7, 1789_. The above message was ordered to lie for consideration.[6] Mr. MORRIS, in behalf of the committee on the bill for allowing a compensation to the President and Vice President of the United States, reported an amendment, to wit: To expunge, in the provision for the Vice President, "five thousand dollars," and insert "six thousand dollars." On motion to reduce the provision for the President of the United States, from "twenty-five thousand" to "twenty thousand dollars:" Passed in the negative. On motion to make the provision for the Vice President eight thousand dollars, instead of five thousand dollars: Passed in the negative. The Senate entered on executive business. The following message from the President was laid before them: _Gentlemen of the Senate:_ My nomination of Benjamin Fishbourn for the place of naval officer of the port of Savannah not having met with your concurrence, I now nominate Lachlan McIntosh for that office.[7] Whatever may have been the reasons which induced your dissent, I am persuaded they were such as you deemed sufficient. Permit me to submit to your consideration whether, on occasions where the propriety of nominations appears questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you. Probably my reasons for nominating Mr. Fishbourn may tend to show that such a mode of proceeding, in such cases, might be useful. I will, therefore, detail them. First. While Colonel Fishbourn was an officer, in actual service, and chiefly under my own eye, his conduct appeared to me irreproachable; nor did I ever hear any thing injurious to his reputation as an officer or a gentleman. At the storming of Stony Point, his behavior was represented to have been active and brave, and he was charged by his General to bring the account of that success to the head quarters of the army. Secondly. Since his residence in Georgia, he has been repeatedly elected to the Assembly as a representative of the county of Chatham, in which the port of Savannah is situated, and sometimes of the counties of Glynn and Camden; he has been chosen a member of the executive council of the State, and has lately been president of the same; he has been elected by the officers of the militia, in the county of Chatham, lieutenant-colonel of the militia in that district; and, on a very recent occasion, to wit, in the month of May last, he has been appointed by the council (on the suspension of the late collector) to an office in the port of Savannah, nearly similar to that for which I nominated him; which office he actually holds at this time. To these reasons for nominating Mr. Fishbourn, I might add that I received private letters of recommendation, and oral testimonials in his favor, from some of the most respectable characters in that State; but as they were secondary considerations with me, I do not think it necessary to communicate them to you. It appeared, therefore, to me, that Mr. Fishbourn must have enjoyed the _confidence_ of the militia officers, in order to have been elected to a military rank; the _confidence_ of the freemen, to have been elected to the Assembly; the _confidence_ of the Assembly, to have been selected for the council; and the _confidence_ of the council, to have been appointed collector of the port of Savannah. GEO. WASHINGTON. NEW YORK, _August 6, 1789_. FRIDAY, August 21. The Senate entered on executive business. They proceeded to consider the report made by Mr. IZARD, yesterday, as follows: The committee appointed to wait on the President of the United States, and confer with him on the mode of communication proper to be pursued between him and the Senate, in the formation of treaties, and making appointments to offices, reported: Which report was agreed to. Whereupon, _Resolved_, That when nominations shall be made in writing by the President of the United States to the Senate, a future day shall be assigned, unless the Senate unanimously direct otherwise, for taking them into consideration; that when the President of the United States shall meet the Senate in the Senate Chamber, the President of the Senate shall have a chair on the floor, be considered as at the head of the Senate, and his chair shall be assigned to the President of the United States; that when the Senate shall be convened by the President of the United States to any other place, the President of the Senate and Senators shall attend at the place appointed. The Secretary of the Senate shall also attend to take the minutes of the Senate. That all questions shall be put by the President of the Senate, either in the presence or absence of the President of the United States; and the Senators shall signify their assent or dissent by answering _viva voce_, aye or no.[8] Another message was received from the President, viz: _Gentlemen of the Senate:_ The President of the United States will meet the Senate, in the Senate Chamber, at half-past eleven o'clock to-morrow, to advise with them on the terms of the treaty to be negotiated with the Southern Indians. GEO. WASHINGTON. NEW YORK, _August 21, 1789_. SATURDAY, August 22. The Senate again entered on executive business. The President of the United States came into the Senate Chamber, attended by General Knox, and laid before the Senate the following statement of facts, with the questions thereto annexed, for their advice and consent: [Here follows the statement of facts, and the questions thereto annexed, and the answer of the Senate to each question.] MONDAY, August 24. The Senate was to-day wholly engaged in executive business. The President of the United States being present in the Senate Chamber, attended by General Knox, The Senate resumed the consideration of the state of facts and questions thereto annexed, laid before them by the President of the United States, on Saturday last. And the first question, viz: "In the present state of affairs between North Carolina and the United States, will it be proper to take any other measures for redressing the injuries of the Cherokees than the one herein suggested?" being put, was answered in the negative.[9] The third question, viz: "If the commissioners shall adjudge that the Creek nation was fully represented at the three treaties with Georgia, and that the cessions of land were obtained with the full understanding and free consent of the acknowledged proprietors, and that the said treaties ought to be considered as just and equitable: in this case, shall the commissioners be instructed to insist on a formal renewal and confirmation thereof? and, in case of a refusal, shall they be instructed to inform the Creeks that the arms of the Union shall be employed to compel them to acknowledge the justice of the said cessions?" was wholly answered in the affirmative. The fourth question, and its four subdivisions, viz: "But if the commissioners shall adjudge that the said treaties were formed with an inadequate or unauthorized representation of the Creek nation, or that the treaties were held under circumstances of constraint or unfairness of any sort, so that the United States could not, with justice and dignity, request or urge a confirmation thereof: in this case, shall the commissioners, considering the importance of the Oconee lands to Georgia, be instructed to use their highest exertions to obtain a cession of said lands? If so, shall the commissioners be instructed, if they cannot obtain the said cessions on better terms, to offer for the same, and for the further great object of attaching the Creeks to the Government of the United States, the following conditions: "1st. A compensation in money or goods, to the amount of ---- dollars; the said amount to be stipulated to be paid by Georgia at the period which shall be fixed, or in failure thereof, by the United States. "2d. A secure port on the Altamaha or on St. Mary's river, or at any other place between the same, as may be mutually agreed to by the commissioners and the Creeks. "3d. Certain pecuniary considerations to some, and honorary military distinctions to other influential chiefs, on their taking oaths of allegiance to the United States. "4th. A solemn guarantee by the United States to the Creeks of their remaining territory, and to maintain the same, if necessary, by a line of military posts," was wholly answered in the affirmative. The blank to be filled at the discretion of the President of the United States. The fifth question, viz: "But if all offers should fail to induce the Creeks to make the desired cessions to Georgia, shall the commissioners make it an ultimatum?" was answered in the negative. The sixth question being divided, the first part, containing as follows, viz: "If the said cessions shall not be made an ultimatum, shall the commissioners proceed and make a treaty, and include the disputed lands within the limits which shall be assigned to the Creeks?" was answered in the negative. The remainder, viz: "If not, shall a temporary boundary be marked, making the Oconee the line, and the other parts of the treaty be concluded?" "In this case, shall a secure port be stipulated, and the pecuniary and honorary considerations granted?" "In other general objects shall the treaties formed at Hopewell, with the Cherokees, Chickasaws, and Choctaws, be the basis of a treaty with the Creeks?" were all answered in the affirmative. On the seventh question, viz: "Shall the sum of twenty thousand dollars, appropriated to Indian expenses and treaties, be wholly applied, if necessary, to a treaty with the Creeks? if not, what proportion?" It was agreed to advise and consent to appropriate the whole sum, if necessary, at the discretion of the President of the United States. The President of the United States withdrew from the Senate Chamber, and the Vice President put the question of adjournment; to which the Senate agreed. WEDNESDAY, September 16. The following message from the President of the United States was received by the Secretary of War. _Gentlemen of the Senate:_ The Governor of the Western Territory has made a statement to me of the reciprocal hostilities of the Wabash Indians, and the people inhabiting the frontiers bordering on the river Ohio, which I herewith lay before Congress. The United States, in Congress assembled, by their acts of the 21st day of July, 1787, and of the 12th August, 1788, made a provisional arrangement for calling forth the militia of Virginia and Pennsylvania in the proportions therein specified. As the circumstances which occasioned the said arrangement continue nearly the same, I think proper to suggest to your consideration the expediency of making some temporary provision for calling forth the militia of the United States for the purposes stated in the constitution, which would embrace the cases apprehended by the Governor of the Western Territory. GEO. WASHINGTON. _September_ 16, 1789. THURSDAY, September 17. The Senate entered on executive business. The following message was received from the President of the United States: _Gentlemen of the Senate:_ It doubtless is important that all treaties and compacts formed by the United States with other nations, whether civilized or not, should be made with caution and executed with fidelity. It is said to be the general understanding and practice of nations, as a check on the mistakes and indiscretions of ministers or commissioners, not to consider any treaty negotiated and signed by such officers as final and conclusive, until ratified by the sovereign or government from whom they derive their powers. This practice has been adopted by the United States respecting their treaties with European nations, and I am inclined to think it would be advisable to observe it in the conduct of our treaties with the Indians; for though such treaties being, on their part, made by their chiefs or rulers, need not be ratified by them, yet, being formed on our part by the agency of subordinate officers, it seems to be both prudent and reasonable that their acts should not be binding on the nation until approved and ratified by the Government. It strikes me that this point should be well considered and settled, so that our national proceedings, in this respect, may become uniform, and be directed by fixed and stable principles. The treaties with certain Indian nations, which were laid before you with my message of the 25th May last, suggested two questions to my mind, viz: 1st, Whether those treaties were to be considered as perfected, and, consequently, as obligatory, without being ratified? If not, then, 2dly, Whether both, or either, and which of them, ought to be ratified? On these questions I request your opinion and advice. You have, indeed, advised me "_to execute and enjoin an observance of_" the treaty with the Wyandots, &c. You, gentlemen, doubtless intended to be clear and explicit; and yet, without further explanation, I fear I may misunderstand your meaning: for if by my _executing_ that treaty you mean that I should make it (in a more particular and immediate manner than it now is) the act of Government, then it follows that I am to ratify it. If you mean by my _executing it_ that I am to see that it be carried into effect and operation, then I am led to conclude, either that you consider it as being perfect and obligatory in its present state, and therefore to be executed and observed; or that you consider it to derive its completion and obligation from the silent approbation and ratification which my proclamation may be construed to imply. Although I am inclined to think that the latter is your intention, yet it certainly is best that all doubts respecting it be removed. Permit me to observe, that it will be proper for me to be informed of your sentiments relative to the treaty with the Six Nations, previous to the departure of the Governor of the Western Territory; and therefore I recommend it to your early consideration. GEO. WASHINGTON. _September_ 17, 1789. _Ordered_, That the President's message be committed to Messrs. CARROLL, KING, and READ. FRIDAY, September 18. The Senate entered on executive business. Mr. CARROLL, on behalf of the committee appointed yesterday, reported as follows: The committee, to whom was referred a message from the President of the United States of the 17th September, 1789, report: That the signature of treaties with the Indian nations has ever been considered as a full completion thereof, and that such treaties have never been solemnly ratified by either of the contracting parties, as hath been commonly practised among the civilized nations of Europe: wherefore the committee are of opinion that the formal ratification of the treaty concluded at Fort Harmar on the 9th day of January, 1789, between Arthur St. Clair, Governor of the Western Territory, on the part of the United States, and the sachems and warriors of the Wyandot, Delaware, Ottawa, Chippewa, Pattiwattima, and Sac Nations, is not expedient or necessary; and that the resolve of the Senate of the 8th September, 1789, respecting the said treaty, authorizes the President of the United States to enjoin a due observance thereof. TUESDAY, September 29. The following communications from the President were received by Mr. Jay: _Gentlemen of the Senate:_ His Most Christian Majesty, by a letter dated the 7th of June last, addressed to the President and members of the General Congress of the United States of North America, announces the much lamented death of his son, the Dauphin. The generous conduct of the French monarch and nation towards this country renders every event that may affect his or their prosperity interesting to us; and I shall take care to assure him of the sensibility with which the United States participate in the affliction which a loss so much to be regretted must have occasioned, both to him and to them. GEO. WASHINGTON. _September_ 29. _Gentlemen of the Senate:_ Having been yesterday informed by a joint committee of both Houses of Congress, that they had agreed to a recess, to commence this day, and to continue until the first Monday of January next, I take the earliest opportunity of acquainting you that, considering how long and laborious this session has been, and the reasons which, I presume, have produced this resolution, it does not appear to me expedient to recommend any measures to their consideration at present, or now to call your attention, gentlemen, to any of those matters in my department which require your advice and consent, and yet remain to be despatched. GEO. WASHINGTON. _September_ 29, 1789. A message from the House of Representatives informed the Senate that the House of Representatives had finished the business of the session, and were ready to adjourn, agreeably to the order of the two Houses of Congress. The business of the session being brought to a close, the Vice President, agreeably to the resolve of the two Houses on the 26th instant, adjourned the Senate to the first Monday in January next, then to meet at the City Hall in New York. FIRST CONGRESS LIST OF SENATORS. _New Hampshire._--John Langdon, Paine Wingate. _Massachusetts._--Caleb Strong, Tristram Dalton. _Connecticut._--William S. Johnson, Oliver Ellsworth. _New York._--Rufus King, Philip Schuyler. _New Jersey._--William Paterson, Jonathan Elmer. _Pennsylvania._--William Maclay, Robert Morris. _Delaware._--Richard Bassett, George Reed. _Maryland._--Charles Carroll, John Henry. _Virginia._--Richard Henry Lee, William Grayson. _South Carolina._--Ralph Izard, Pierce Butler. _Georgia._--William Few, James Gunn. _North Carolina._[10]--Benjamin Hawkins, Samuel Johnston. _Rhode Island._[11]--Joseph Stanton, jr., Theodore Foster. LIST OF REPRESENTATIVES. _New Hampshire._--Nicholas Gilman, Samuel Livermore, Abiel Foster. _Massachusetts._--George Thatcher, Fisher Ames, George Leonard, Elbridge Gerry, Jonathan Grout, Benjamin Goodhue, Theodore Sedgwick, George Partridge. _Connecticut._--Benjamin Huntington, Jonathan Trumbull, Jeremiah Wadsworth, Roger Sherman, Jonathan Sturges. _New York._--John Lawrence, Egbert Benson, William Floyd, Peter Sylvester, John Hathorn, Jeremiah Van Rensselaer. _New Jersey._--Elias Boudinot, James Schureman, Lambert Cadwalader, Thomas Sinnickson. _Pennsylvania._--Henry Wynkoop, Frederick Augustus Muhlenberg, Daniel Heister, Thomas Scott, George Clymer, Thomas Fitzsimons, Thomas Hartley, Peter Muhlenberg. _Delaware._--John Vining. _Maryland._--William Smith, George Gale, Daniel Carroll, Joshua Seney, Michael Jenifer Stone, Benjamin Contee. _Virginia._--Alexander White, James Madison, jr., John Page, Richard Bland Lee, Samuel Griffin, Andrew Moore, Josiah Parker, Theodorick Bland,[12] Isaac Coles, John Brown. _South Carolina._--Thomas Tudor Tucker, Edanus Burke, Daniel Huger, William Smith, Thomas Sumter. _Georgia._--Abraham Baldwin, James Jackson, George Mathews. _North Carolina._[13]--John Steele, Timothy Bloodworth, Hugh Williamson, John Baptist Ashe, John Sevier. _Rhode Island._[14]--Benjamin Bourn. FIRST CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. WEDNESDAY, March 4, 1789. This being the day fixed for the meeting of the new Congress, the following members of the House of Representatives appeared and took their seats, viz:[15] _From Massachusetts_, GEORGE THATCHER, FISHER AMES, GEORGE LEONARD, and ELBRIDGE GERRY. _From Connecticut_, BENJAMIN HUNTINGTON, JONATHAN TRUMBULL, and JEREMIAH WADSWORTH. _From Pennsylvania_, FREDERICK AUGUSTUS MUHLENBERG, THOMAS HARTLEY, PETER MUHLENBERG, and DANIEL HEISTER. _From Virginia_, ALEXANDER WHITE. _From South Carolina_, THOMAS TUDOR TUCKER. A quorum of the members not being present, the House adjourned until to-morrow at eleven o'clock. THURSDAY, March 5. Several other members attended, viz: from New Hampshire, NICHOLAS GILMAN; from Massachusetts, BENJAMIN GOODHUE; from Connecticut, ROGER SHERMAN and JONATHAN STURGES; and from Pennsylvania, HENRY WYNKOOP; and no other members arriving, a quorum not being present, the House adjourned, from day to day, until the 14th instant. SATURDAY, March 14. The following members took their seats, to wit: JAMES MADISON, junior, JOHN PAGE, and RICHARD BLAND LEE, from Virginia. A quorum not being yet present, the House adjourned, from day to day, until the 17th instant. TUESDAY, March 17. SAMUEL GRIFFIN, from Virginia, took his seat. WEDNESDAY, March 18. ANDREW MOORE, from Virginia, took his seat. No other member appearing, the House adjourned, from day to day, until the 23d instant. MONDAY, March 23. The following members appeared, to wit:-- From New Jersey, ELIAS BOUDINOT; and from Maryland, WILLIAM SMITH. No additional member appeared on the 24th. WEDNESDAY, March 25. JONATHAN PARKER, from Virginia, appeared and took his seat. No additional member arrived until the 30th instant. MONDAY, March 30. GEORGE GALE, from Maryland, and THEODORICK BLAND, from Virginia, appeared and took their seats. No additional member on the 31st instant. WEDNESDAY, April 1. Two other members appeared, to wit: JAMES SCHUREMAN, from New Jersey, and THOMAS SCOTT, from Pennsylvania, who, forming a quorum of the whole body, it was, on motion, _Resolved_, That this House will proceed to the choice of a Speaker by ballot. The House accordingly proceeded to ballot for a Speaker, when it was found that a majority of the votes were in favor of FREDERICK AUGUSTUS MUHLENBERG, one of the Representatives from Pennsylvania. Whereupon Mr. MUHLENBERG was conducted to the chair, from whence he made his acknowledgments to the House for so distinguished an honor. The House then proceeded in the same manner to the appointment of a Clerk, when it was found that Mr. JOHN BECKLEY was elected. On motion, _Ordered_, That the members do severally deliver in their credentials at the Clerk's table. THURSDAY, April 2. LAMBERT CADWALADER, from New Jersey, appeared and took his seat. FRIDAY, April 3. GEORGE CLYMER, from Pennsylvania, appeared and took his seat. SATURDAY, April 4. GEORGE PARTRIDGE, from Massachusetts, appeared and took his seat. The House proceeded to the election of a doorkeeper, and assistant doorkeeper; when Gifford Dudley was chosen to the former, and Thomas Claxton to the latter office. MONDAY, April 6. DANIEL CARROLL, from Maryland, appeared and took his seat. _Ordered_, That leave be given to bring in a bill to regulate the taking the oath or affirmation prescribed by the sixth article of the Constitution; and that Messrs. WHITE, MADISON, TRUMBULL, GILMAN, and CADWALADER, do prepare and bring in the same. On motion, _Resolved_, That the form of the oath to be taken by the members of this House, as required by the third clause of the sixth article of the Constitution of Government of the United States, be as followeth, to wit: "I, A B, a Representative of the United States in the Congress thereof, do solemnly swear (or affirm, as the case may be) in the presence of Almighty GOD, that I will support the Constitution of the United States. So help me God." A message from the Senate, by Mr. ELLSWORTH. Mr. SPEAKER: I am charged by the Senate to inform this House, that a quorum of the Senate is now formed; that a President is elected for the sole purpose of opening the certificates and counting the votes of the electors of the several States, in the choice of a President and Vice President of the United States; and that the Senate is now ready in the Senate Chamber, to proceed, in presence of this House, to discharge that duty. I have it also in further charge to inform this House that the Senate has appointed one of its members to sit at the Clerk's table to make a list of the votes as they shall be declared, submitting it to the wisdom of this House to appoint one or more of its members for the like purpose. On motion, _Resolved_, That Mr. Speaker, attended by the House, do now withdraw to the Senate Chamber, for the purpose expressed in the message from the Senate; and that Mr. PARKER and Mr. HEISTER be appointed on the part of this House, to sit at the Clerk's table with the member of the Senate, and make a list; of the votes, as the same shall be declared. Mr. Speaker accordingly left the chair, and attended by the House, withdrew to the Senate Chamber, and after some time returned to the House. Mr. Speaker resumed the chair. Mr. PARKER and Mr. HEISTER then delivered in at the Clerk's table a list of the votes of the electors of the several States in the choice of a President and Vice President of the United States, as the same were declared by the President of the Senate, in the presence of the Senate and of this House, which was ordered to be entered on the Journal.[16] WEDNESDAY, April 8. Two other members, to wit: JNO. LAWRENCE, from New York, and THOMAS FITZSIMONS, from Pennsylvania, appeared and took their seats. _Duties on Imports._ On motion, the House resolved itself into a Committee of the Whole on the state of the Union, Mr. PAGE in the chair. Mr. MADISON.--I take the liberty, Mr. Chairman, at this early stage of the business, to introduce to the committee a subject, which appears to me to be of the greatest magnitude; a subject, sir, that requires our first attention, and our united exertions. No gentleman here can be unacquainted with the numerous claims upon our justice; nor with the impotency which prevented the late Congress of the United States from carrying into effect the dictates of gratitude and policy. The union, by the establishment of a more effective government, having recovered from the state of imbecility that heretofore prevented a performance of its duty, ought, in its first act, to revive those principles of honor and honesty that have too long lain dormant. The deficiency in our Treasury has been too notorious to make it necessary for me to animadvert upon that subject. Let us content ourselves with endeavoring to remedy the evil. To do this a national revenue must be obtained; but the system must be such a one, that, while it secures the object of revenue, it shall not be oppressive to our constituents. Happy it is for us that such a system is within our power; for I apprehend that both these objects may be obtained from an impost on articles imported into the United States. In pursuing this measure, I know that two points occur for our consideration. The first respects the general regulation of commerce; which, in my opinion, ought to be as free as the policy of nations will admit. The second relates to revenue alone; and this is the point I mean more particularly to bring into the view of the committee. Not being at present possessed of sufficient materials for fully elucidating these points, and our situation admitting of no delay, I shall propose such articles of regulations only as are likely to occasion the least difficulty. The propositions made on this subject by Congress in 1783, having received, generally, the approbation of the several States of the Union, in some form or other, seem well calculated to become the basis of the temporary system, which I wish the committee to adopt.[17] I am well aware that the changes which have taken place in many of the States, and in our public circumstances, since that period, will require, in some degree, a deviation from the scale of duties then affixed: nevertheless, for the sake of that expedition which is necessary, in order to embrace the spring importations, I should recommend a _general_ adherence to the plan. This, sir, with the addition of a clause or two on the subject of tonnage, I will now read, and, with leave, submit it to the committee, hoping it may meet their approbation, as an expedient rendered eligible by the urgent occasion there is for the speedy supplies of the federal treasury, and a speedy rescue of our trade from its present anarchy. _Resolved_, As the opinion of this committee, that the following duties ought to be levied on goods, wares, and merchandise, imported into the United States, viz: On rum, per gallon, ---- of a dollar; on all other spirituous liquors ----; on molasses ----; on Madeira wine ----; on all other wines ----; on common bohea teas per lb. ----; on all other teas ----; on pepper ----; on brown sugar ----; on loaf sugar ----; on all other sugars ----; on cocoa and coffee ----; on all other articles ---- per cent. on their value at the time and place of importation. That there ought, moreover, to be levied on all vessels in which goods, wares, or merchandises shall be imported, the duties following, viz: On all vessels built within the United States, and belonging wholly to citizens thereof, at the rate of ---- per ton. On all vessels belonging wholly to the subjects of Powers with whom the United States have formed treaties, or partly to the subjects of such Powers, and partly to citizens of the said States, at the rate of ----. On all vessels belonging wholly or in part to the subjects of other Powers, at the rate of ----.[18] Mr. BOUDINOT.--The necessity of adopting some measure, like the one proposed by the honorable gentleman from Virginia, is too apparent to need any argument in its support. The plan which he has submitted to the committee appears to be simple and sufficiently complete for the present purpose; I shall, therefore, for my own part, be content with it, and shall move you, sir, that the blanks be filled up in the manner they were recommended to be charged by Congress in 1783. My reason for this is, that those sums have been approved by the Legislatures of every State represented on this floor, and of consequence must have been agreeable to the sense of our constituents at that time; and, I believe, nothing since has intervened to give us reason to believe they have made an alteration in their sentiments. Mr. WHITE.--I wish filling up the blanks may be deferred until the business is more matured; nor will this be attended with a loss of time, because the forms necessary to complete a bill will require so much as to give gentlemen leisure to consider the proper quantum of impost to be laid, as well on the enumerated articles as on the common mass of merchandise rated _ad valorem_; for, as was hinted by my colleague, something may have occurred to render an alteration in the sums recommended in 1783 in some degree necessary; and if so, time will be given to consider the subject with more attention in the progress of the bill, and no unnecessary delay can arise; wherefore, I move you, sir, that the committee now rise, report progress, and ask leave to sit again. Mr. MADISON.--I do not consider it at this moment necessary to fill up the blanks, nor had I it in contemplation at the time I offered the propositions. I supposed that most of the gentlemen would wish time to think upon the principles generally, and upon the articles particularly; while others, who, from their situation and advantages in life, are more conversant on this subject, may be induced to turn their particular attention to a subject they are well able to do justice to, and to assist the committee with their knowledge and information; unless such gentlemen are now prepared and disposed to proceed in filling up the blanks, I shall second the motion for the committee's rising. THURSDAY, April 9. EGBERT BENSON, from New York, and ISAAC COLES, from Virginia, appeared and took their seats. _Duties on Imports._ The House again resolved itself into a Committee of the Whole on the state of the Union, Mr. PAGE in the chair. Mr. LAWRENCE.--The subject of the proposition laid before the committee by the honorable gentleman from Virginia, (Mr. MADISON,) will now, I presume, Mr. Chairman, recur for our deliberation. I imagine it to be of considerable importance, not only to the United States, but to every individual of the Union. The object of the revenue alone would place it in this situation, and in this light I mean now to consider it. If I am not mistaken, the honorable mover of the plan viewed it as a temporary system, particularly calculated to embrace the spring importations; therefore, in order to discover whether the mode laid before you is well calculated to answer this end, it will be proper to consider its operation. The plan consists of certain distinct propositions; one part is intended to lay a specific sum on enumerated articles, the other a certain per cent. _ad valorem_: perhaps simplifying the system may be productive of happy consequences, and it strikes me that confusion and perplexity will be best avoided by such a measure; hence, it may be proper to lay a duty at a certain rate per cent. on the value of all articles, without attempting an enumeration of any; because, if we attempt to specify every article, it will expose us to a question which must require more time than can be spared, to obtain the object that appears to be in the view of the committee. A question, I say, sir, will arise, whether the enumeration embraces every article that will bear a duty, and whether the duty to be affixed is the proper sum the article is able to bear. On this head, sir, I believe that the committee have not materials sufficient to form even the basis of the system, beside being wholly incompetent to determine the rate most advantageous to the article of revenue, and most agreeable to the interest and convenience of our constituents. Knowledge on these points can only be obtained by experience; but hitherto we have had none, at least of a general nature. The partial regulations made by the States, throw but little light on the subject, and its magnitude ought to induce us to use the greatest degree of caution. A system of the nature which I hinted at, will, in my opinion, be not only less complex and difficult in its formation, but likewise easier and more certain in its operation; because the more simple a plan of revenue is, the easier it becomes understood and executed: and it is, sir, an earnest wish of mine, that all our acts should partake of this nature. Moreover, by adopting the plan I have mentioned, you will embrace the spring importation and give time for digesting and maturing one upon more perfect principles; and, as the proposed system is intended to be but a temporary one, _that_ I esteem to be best which requires the least time to form it. With great deference I have submitted these sentiments to the committee, as what occurred to me to be the better plan of the two; though, I must own, it is a subject on which I am not so fully informed as I wish to be, and therefore hope the indulgence of the committee in considering it. Mr. FITZSIMONS.--I observe, Mr. Chairman, by what the gentlemen have said, who have spoken on the subject before you, that the proposed plan of revenue is viewed by them as a temporary system, to be continued only until proper materials are brought forward and arranged in more perfect form. I confess, sir, that I carry my views on this subject much further; that I earnestly wish such a one which, in its operation, will be some way adequate to our present situation, as it respects our agriculture, our manufactures, and our commerce. An honorable gentleman (Mr. LAWRENCE) has expressed an opinion that an enumeration of articles will operate to confuse the business. So far am I from seeing it in this point of view, that, on the contrary, I conceive it will tend to facilitate it. Does not every gentleman discover that, when a particular article is offered to the consideration of the committee, he will be better able to give his opinion upon it than on an aggregate question? because the partial and convenient impost laid on such article by individual States is more or less known to every member in the committee. It is also well known that the amount of such revenue is more accurately calculated and better to be relied on, because of the certainty of collection, less being left to the officers employed in bringing it forward to the public treasury. It being my opinion that an enumeration of articles will tend to clear away difficulties, I wish as many to be selected as possible; for this reason I have prepared myself with an additional number, which I wish subjoined to those already mentioned in the motion on your table; among these are some calculated to encourage the productions of our country, and protect our infant manufactures; besides others tending to operate as sumptuary restrictions upon articles which are often termed those of luxury. The amendment I mean to offer is in these words: I shall read it in my place, and, if I am seconded, hand it to you for the consideration of the committee. _Resolved_, As the opinion of this committee, that the following duties ought to be laid on goods, wares, and merchandise imported into the United States, to wit: [The articles enumerated for duty were beer, ale, and porter; beef, pork, butter, candles, cheese, soap, cider, boots, steel, cables, cordage, twine or pack thread, malt, nails, spikes, tacks, or brads; salt, tobacco, snuff, blank books, writing, printing, and wrapping paper; pasteboard, cabinet ware; buttons, saddles, gloves, hats, millinery, castings of iron, slit, or rolled iron; leather, shoes, slippers, and golo shoes; coach, chariot, and other four wheel carriages; chaise, solo, or other two wheel carriages; nutmegs, cinnamon, cloves, raisins, figs, currants, almonds.] This motion was seconded by Mr. SCHUREMAN. Mr. WHITE.--I shall not pretend to say that there ought not to be specific duties laid upon every one of the articles enumerated in the amendment just offered; but I am inclined to think, that entering so minutely into the detail, will consume too much of our time, and thereby lose us a greater sum than the additional impost on the last-mentioned articles will bring in; because there may be doubts whether many of them are capable of bearing an increased duty; but this, sir, is not the case with those mentioned in the motion of my colleague: for I believe it will be readily admitted on all sides, that such articles as rum, wines, and sugar, have the capacity of bearing an additional duty besides a per cent. _ad valorem_. His system appears to be simple, and its principles I conceive, are such as gentlemen are agreed upon, consequently a bill founded thereupon would pass this House in a few days; the operation of the law would commence early, and the treasury be furnished with money to answer the demands upon it. This law would continue until mature deliberation, ample discussion, and full information, enabled us to complete a perfect system of revenue: for, in order to charge specified articles of manufacture, so as to encourage our domestic ones, it will be necessary to examine the present state of each throughout the Union. This will certainly be a work of labor and time, and will perhaps require more of each than the committee have now in their power. Let us, therefore, act upon the principles which are admitted, and take in the most material and productive articles, leaving to a period of more leisure and information a plan to embrace the whole. Mr. TUCKER.--In common with the other gentlemen on this floor, I consider the subject which engages our present deliberations as of very great importance as it relates to our agriculture, manufactures, and commerce; I also consider it of consequence that we should give full satisfaction to our constituents by our decision, be that whatever it may; and I think this most likely to be effected by establishing a permanent regulation, although in the interim, a temporary system may be expedient. I have no objection, sir, to go so far into the matter as to pass a law to collect an impost _ad valorem_, whilst it is understood to be but a temporary system; and likewise to lay a duty on such enumerated articles of importation as have been heretofore considered as proper ones by the Congress of 1783. So far, sir, the matter may be plain to us, and we run no hazard of doing any thing which may give dissatisfaction to any State in the Union. The duties proposed by the Congress of 1783 were, I believe, five per cent. on the value of all goods imported, and an additional duty on a few enumerated articles.[19] This recommendation of Congress has been so universally received by the several States, that I think we run no risk of giving umbrage to any by adopting the plan; but the other articles which have just been offered, are, I apprehend, to many of us so novel, and, at the same time, so important, as to make it hard to determine the propriety of taxing them in a few hours, or even in a few days. In order to preserve the peace and tranquillity of the Union, it will become necessary that mutual deference and accommodation should take place on subjects so important as the one I have first touched upon. And, in order that this may take place, it is proper that gentlemen deliver their sentiments with freedom and candor. I have done this in a manner which I conceived it my duty to do, and shall just repeat that I wish to confine the question to that part of the motion made by the honorable gentleman from Virginia, (Mr. MADISON,) which respects laying a general impost on the value of all goods imported, and the small enumeration which precedes it: if it is in contemplation to do otherwise, I shall be under the necessity of moving for a division of the question. If I should lose this, and a high tonnage duty be insisted on, I shall be obliged to vote against the measure altogether; when, if the business is conducted on principles of moderation, I shall give my vote for it to a certain degree. Mr. HARTLEY.--If we consult the history of the ancient world, we shall see that they have thought proper, for a long time past, to give great encouragement to the establishment of manufactures, by laying such partial duties on the importation of foreign goods, as to give the home manufactures a considerable advantage in the price when brought to market. It is also well known to this committee, that there are many articles that will bear a higher duty than others, which are to remain in the common mass, and be taxed with a certain impost _ad valorem_. From this view of the subject I think it both politic and just that the fostering hand of the General Government should extend to all those manufactures which will tend to national utility. I am therefore sorry that gentlemen seem to fix their mind to so early a period as 1783; for we very well know our circumstances are much changed since that time: we had then but few manufactures among us, and the vast quantities of goods that flowed in upon us from Europe, at the conclusion of the war, rendered those few almost useless; since then we have been forced by necessity, and various other causes, to increase our domestic manufactures to such a degree as to be able to furnish some in sufficient quantity to answer the consumption of the whole Union, while others are daily growing into importance. Our stock of materials is, in many instances, equal to the greatest demand, and our artisans sufficient to work them up even for exportation. In these cases, I take it to be the policy of every enlightened nation to give their manufactures that degree of encouragement necessary to perfect them, without oppressing the other parts of the community; and under this encouragement, the industry of the manufacturer will be employed to add to the wealth of the nation. Mr. MADISON.--From what has been suggested by the gentlemen that have spoken on the subject before us, I am led to apprehend we shall be under the necessity of travelling further into an investigation of principles than what I supposed would be necessary, or had in contemplation when I offered the propositions before you. I am sensible that there is great weight in the observation that fell from the honorable gentleman from South Carolina, (Mr. TUCKER,) that it will be necessary, on the one hand, to weigh and regard the sentiments of the gentlemen from the different parts of the United States; but, on the other hand, we must limit our consideration on this head, and, notwithstanding all the deference and respect we pay to those sentiments, we must consider the general interest of the Union; for this is as much every gentleman's duty to consider as is the local or State interest--and any system of impost that this committee may adopt must be founded on the principles of mutual concession. Gentlemen will be pleased to recollect, that those parts of the Union which contribute more under one system than the other, are also those parts more thinly planted, and consequently stand most in need of national protection; therefore they will have less reason to complain of unequal burthens. There is another consideration; the States that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. While these States retained the power of making regulations of trade, they had the power to protect and cherish such institutions; by adopting the present constitution, they have thrown the exercise of this power into other hands: they must have done this with an expectation that those interests would not be neglected here. In my opinion, it would be proper also for gentlemen to consider the means of encouraging the great staple of America, I mean agriculture; which I think may justly be styled the staple of the United States, from the spontaneous productions which nature furnishes, and the manifest advantage it has over every other object of emolument in this country. If we compare the cheapness of our land with that of other nations, we see so decided an advantage in that cheapness, as to have full confidence of being unrivalled. With respect to the object of manufactures, other countries may and do rival us; but we may be said to have a monopoly in agriculture; the possession of the soil, and the lowness of its price, give us as much a monopoly in this case, as any nation or other parts of the world have in the monopoly of any article whatever; but, with this advantage to us, that it cannot be shared nor injured by rivalship. If my general principle is a good one, that commerce ought to be free, and labor and industry left at large to find its proper object, the only thing which remains will be to discover the exceptions that do not come within the rule I have laid down. I agree with the gentleman from Pennsylvania, that there are exceptions, important in themselves, and which claim the particular attention of the committee. Although the freedom of commerce would be advantageous to the world, yet, in some particulars, one nation might suffer to benefit others, and this ought to be for the general good of society. The next exception that occurs, is one on which great stress is laid by some well informed men, and this with great plausibility. That each nation should have within itself the means of defence, independent of foreign supplies: that in whatever relates to the operations of war, no State ought to depend upon a precarious supply from any part of the world. There may be some truth in this remark, and therefore it is proper for legislative attention. I am, though, well persuaded that the reasoning on this subject has been carried too far. The difficulties we experienced a few years ago, of obtaining military supplies, ought not to furnish too much in favor of an establishment which would be difficult and expensive; because our national character is now established and recognized throughout the world, and the laws of war favor national exertion more than intestine commotion, so that there is good reason to believe that when it becomes necessary, we may obtain supplies from abroad as readily as any other nation whatsoever. I have mentioned this, because I think I see something among the enumerated articles that seems to favor such a policy. Mr. BOUDINOT.--I believe that it will not be disputed, that the best and easiest way of supplying the public wants, is by raising a revenue on the importation of goods by way of impost, though the manner in which it should be done, I confess, is a subject on which I stand greatly in need of information. I should, therefore, most cordially comply with the request of the gentleman from South Carolina, (Mr. TUCKER,) in order to obtain time for consideration, and to wait the arrival of the absent gentlemen, in order that we may have that assistance which is to be derived from them. Did I consider the question on the present motion final, I should be at a loss how to act; but this, I take it, is not the case. I presume it is intended by the mover only to lay his motion on the table, with the original propositions open for debate and consideration, till the committee are possessed of sufficient information to proceed. I also confess, that, in general, I am in favor of specific duties on enumerated articles. I shall therefore vote for the amendment; but, in doing this, I shall not consider myself as bound to support the whole, nor, indeed, any particular article which, upon due consideration, I may deem either impolitic or unjust; for I cannot conceive, that, by adopting the amendment, we tie up our hands, or prevent future discussion. No, sir, that is not the case; and as I trust we all have the same object in view, namely, the public good of the United States, so I hope that a willing ear will be lent to every proposition likely to promote this end; nor do I doubt but gentlemen are mutually inclined to sacrifice local advantages for the accomplishment of this great purpose. On motion of Mr. LEE, the committee rose and reported progress, and the House adjourned. SATURDAY, April 11. Mr. CLYMER submitted it to the consideration of the committee, how far it was best to bring propositions forward in this way. Not that he objected to this mode of encouraging manufactures and obtaining revenue, by combining the two objects in one bill. He was satisfied that a political necessity existed for both the one and the other, and it would not be amiss to do it in this way, but perhaps the business would be more speedily accomplished by entering upon it systematically. Mr. BOUDINOT.--It appears to me that this business of raising revenue points out two questions, of great importance, demanding much information. The first is, what articles are proper objects of taxation, and the probable amount of revenue from each. The second is, the proper mode of collecting the money arising from this fund, when the object and its amount are ascertained. There are three sources from which we may gain information on the first question, namely, from the revenue laws of the different States, for I believe a partial revenue has been raised almost in every State by an impost. The second source of information, and a very natural one, is the great body of merchants spread throughout the United States; this is a very respectable and well-informed body of our fellow-citizens, and great deference ought to be paid to their communications--they are in a peculiar situation under the present constitution, to which they are generally esteemed sincere friends--they are also more immediately interested in the event of the proposed measure, than any other class of men. To this Government they look for protection and support, and for such regulations as are beneficial to commerce; for these reasons, I think they deserve our confidence, and we ought to obtain from them such information as will enable the Congress to proceed to a general permanent system on more solid principles. There are gentlemen on this floor well calculated to represent the mercantile interests of this country, and in whose integrity and abilities I have the highest confidence; but it is the duty of the members of this body to see that the principles upon which we act, are those calculated to promote the general good, and not confined to the local interests of a few individuals, or even individual States, so that they will decline trusting alone to this species of information, when another is attainable. Mr. FITZSIMONS thought it best to make the system as perfect as possible before the committee determined its duration. Mr. MADISON, that the subject which was under consideration divided itself, as had been observed by the honorable gentlemen from Jersey, into two parts; and hence he concluded that they might very properly be provided for by two separate bills; and while the Committee of the Whole are selecting articles and taxing them, another committee can be employed in devising the mode of collection. This method he thought more likely to reconcile the opinions of the committee than any he had heard suggested. Mr. SHERMAN gave it as his opinion, that in fixing the duties on particular articles, if they could not ascertain the exact quantum, it would be better to run the risk of erring in setting low duties than high ones, because it was less injurious to commerce to raise them than to lower them; but nevertheless, he was for laying on duties which some gentlemen might think high, as he thought it better to derive revenue from impost than from direct taxation, or any other method in their power. He moved that the article of rum should be charged with fifteen cents per gallon--he used the term cents because it was a denomination of national coin, fixed by the late Congress, ten of which make a _dime_ and ten _dimes_ one dollar. Mr. SMITH was apprehensive fifteen cents would be too high, and therefore moved ten cents, which he thought would raise more revenue than the other. Mr. MADISON advised and moved for the rising of the committee, in order to give gentlemen time to make up their minds respecting the quantum of impost to be laid on each article. MONDAY, April 13. WILLIAM FLOYD, from New York; THOMAS SINNICKSON, from New Jersey; JOSHUA SENEY, from Maryland; EDANUS BURKE, DANIEL HUGER, and WILLIAM SMITH, from South Carolina, appeared and took their seats. On motion, _Ordered_, That Mr. BENSON, Mr. PETER MUHLENBERG, and Mr. GRIFFIN, be a committee to consider of and report to the House respecting the ceremonial of receiving the President, and that they be authorized to confer with a committee of the Senate for the purpose. TUESDAY, April 14. _Duties on Imports._ The House again resolved itself into a Committee of the Whole on the state of the Union; Mr. PAGE in the chair. Mr. BLAND, from Virginia, thought the committee not prepared to enter on the business of impost in the accurate manner which the form of the propositions seemed to imply. No gentleman on the floor could be more desirous than he was to go into the measure of a permanent system; but he could not agree to proceed at this time, for want of information. When he looked at the list of articles, he saw some calculated to give encouragement to home manufactures. This might be in some degree proper; but it was a well-known fact, that the manufacturing arts in America were only in their infancy, and far from being able to answer the demands of the country; then certainly you lay a tax upon the whole community, in order to put the money in the pockets of a few, whenever you burthen the importation with a heavy impost. Mr. SCOTT.--The subject before us naturally divides itself into two heads. First, what article shall be the subject of a particular tax, and what shall remain in the common mass liable to an impost _ad valorem_? The second, what the sum is that is proper for the article we select? For both these points will be necessary, because it can hardly be supposed that all articles can be enumerated, while some certainly ought. This being the case, it leads us to inquire what rule or principle shall be laid down in order to make a proper discrimination; for surely some reason should be assigned for this distinction. I presume the particular article which is to be subjected to an extraordinary duty must either come at so cheap a rate, according to its intrinsic value, as to bear a greater impost without being unreasonably expensive, or it must be one which we do not stand in need of at all, and only used for the purposes of luxury. If an article does not come within one of these descriptions, I see no reason why it should be taxed in an extraordinary manner. On motion of Mr. GALE, the word _rum_ was changed into distilled spirits of Jamaica proof. Mr. LAWRENCE proposed to lay twelve cents on this article, saying, I believe, Mr. Chairman, it will be necessary to consider, when we are about to lay a duty on any article, how far it is likely to be collected, especially if our main object is to obtain revenue by our impost. I trust it does not require much illustration to prove to the satisfaction of the committee, that if you lay your duties too high, it will be a temptation to smuggling; for, in the proportion which that sum bears to the value of the article, will be the risk run in every attempt to introduce it in a clandestine manner, and, if this temptation is made too strong, the article will furnish no revenue. I believe, if the committee shall impose a duty of fifteen cents, as proposed by the gentleman from Connecticut, (Mr. SHERMAN,) it will be so strong a temptation for smuggling, that we shall lose our revenue altogether, or be compelled to use a mode of collection probably different from what we have been accustomed to--a mode so expensive as to absorb the whole produce of the tax. I wish to lay as large a sum on this article as good policy may deem expedient; it is an article of great consumption, and though it cannot be reckoned a necessary of life, yet it is in such general use, that it may be expected to pay a very considerable sum into your treasury, when others may not with so much certainty be relied upon. But, when we consider the relative proportion of the first cost of it, and the fifteen cents duty, we shall find it about one third. This, I cannot help thinking, is too high, as the risk of a total loss may be ventured in order to save so great a sum; it is surely a great temptation, and I dread its consequences on more accounts than one. Mr. MADISON.--I would tax this article with as high a duty as can be collected, and I am sure, if we judge from what we have heard and seen in the several parts of the Union, that it is the sense of the people of America that this article should have a duty imposed upon it weighty indeed. The duty proposed by the gentleman from New York (Mr. LAWRENCE) very little exceeds what is laid in this State, and very little what is laid in some other States, while some have thought it expedient to impose an excise superior. The question then is, whether the highest sum can be collected? I am of opinion that higher duties may generally be collected under the government of the Union than could be under that of the particular States, because it has been the policy of some, not only to decline going hand in hand together, but actually to oppose regulations made in a neighboring State. Being persuaded, likewise, that the highest sum will not exceed the power of the law to enforce the collection of, I shall vote for it. Mr. BOUDINOT.--I am in favor of taxing this article as high as there is a probability of collecting the duty. I think our doing so will answer two or three good purposes. The present object of the committee is to raise a revenue, and no article on the list before you is more likely to be productive than this one; but a high duty may also discourage the use of ardent spirits; if not, it may discourage the West Indies from turning their molasses into rum. This being the case, they have no other market for molasses than this country, and our own distilleries, with the advantages arising therefrom, will be able to rival them in the manufacture of that article; so far it may tend to the benefit of the country. I conceive it might be proper, on these accounts, to lay a much higher duty than has been proposed, were it not for the considerations mentioned by the gentleman from New York, that we run a risk of losing all by grasping at too much. Mr. LAWRENCE.--The sum proposed is higher than the duty collected in this State, which is about eight cents; I fear, therefore, that it cannot be collected. If we are to reason and act as moralists on this point, I am certain it is the wish of every member to prevent the use of ardent spirits altogether, for their influence on the morals of the people is of the most pernicious kind. Nor does the mischief terminate here, as I apprehend it is equally destructive to the health; but we are not to deliberate and determine on this subject as moralists, but as politicians, and endeavor to draw (if I may use the expression) from the vices of mankind, that revenue which our citizens must, in one form or other, contribute. The question is, what shall be the duty on any particular article? To accomplish this purpose, we must determine by the circumstances of that article. Now, if we lay a high duty on Jamaica rum, it is supposed it will prevent the consumption; but then the purpose we have in view is frustrated, either because we cannot collect the tax, or the object of it is no longer imported. The consequence in this latter case would be, that the morals of our citizens are not impaired; yet it does not appear to me that this consequence would certainly flow from a system of high duties. I rather fear it would lead no further than to set men on schemes to evade the duty; and none of us are ignorant of the ingenuity and invention which can be exercised, when interest prompts mankind to an evasion of the law. We know the situation of the different States; the coast disposed by its prodigious extent to favor every means of illicit trade. A cargo of rum could be landed in Jersey, and the whole, reshipped in small vessels, might soon be brought into this city. If this should be the effect of our law, we have no other way to correct the operation, but by adopting a mode of collection odious to all, on account of the numerous train of officers it would require in its execution. But there would also be a danger of vessels running into creeks and small inlets, for the purpose of landing their cargoes, as well as on the sea-shore. Hence a necessity would arise of employing a number of vessels to check and correct such abuses, and the probable event would be, that all the impost collected would go to defray the expense of getting it into the treasury. The committee now agreed to tax ardent spirits, of Jamaica proof, fifteen cents; and all other spirituous liquors twelve cents. On filling up the blank on molasses: Mr. MADISON.--It is agreed, I presume, that spirits of every kind are proper objects of taxation, but whether we shall tax spirits in the case before us, or whether we shall tax the article from which it comes, is a question worthy of the consideration of the committee for several reasons. I believe it will be best to lay our hands on the duty, by charging this article on its importation, to avoid a more disagreeable measure. I would, therefore, lay such a duty on molasses, as is proportioned to what we have affixed upon rum, making an allowance in favor of our own manufacture. I think eight cents per gallon will allow a sufficient advantage to them, but of this I am not positive, and, therefore, shall not pertinaciously adhere to that sum, if it be thought too high; but I presume I am right in the principle upon which I contend, that we ought to collect the duty on the importation of molasses, in preference to any other way. Mr. FITZSIMONS.--I think the duty on this article depends, in a great measure, upon what has been already agreed to. If the tax of West India and country rum is not well proportioned, it may be destructive of the end we have in contemplation. If, agreeably to the idea of the gentleman from New York, we affix a low duty, a great deal more rum will, in all probability, be distilled and used, than heretofore; of course, it will effectually rival the Jamaica rum, and the Union will lose the revenue which we calculate upon. Eight cents, I apprehend, is as well proportioned to the other taxes as can be devised. Mr. GOODHUE considered molasses as a raw material, essentially requisite for the well-being of a very extensive and valuable manufacture. It ought likewise to be considered (as was truly stated) a necessary of life. In the Eastern States it entered into the diet of the poorer classes of people, who were, from the decay of trade and other adventitious circumstances, totally unable to sustain such a weight as a tax of eight cents would be upon them. Moreover, the tax was upon particular States as well as individuals, for it was a fact of public notoriety, that Massachusetts imported more molasses than all the other States together. She imports from 30,000 to 40,000 hogsheads annually. He would make one observation more. It had been the policy of Great Britain, as he well remembered, to encumber and depress the distillation of molasses. To do this, at one time they laid a duty of three pence sterling per gallon. It was conceived to be an oppressive measure, but it had little other effect than to cause heart-burnings and enmity. It produced no revenue, and the Parliament were forced to reduce the duty to a penny. From experience, therefore, as well as from the arguments before urged, he was inclined to believe that the committee would be satisfied with fixing a lower sum. He could not consent to allow more than two cents. Mr. THATCHER.--It appears to me, that for the want of a certain and fixed principle to act upon, there is a great danger of making some improper establishments. It is for this reason that I wish not to hurry on the business with so much precipitation. Did gentlemen consider, when they agreed to a high duty on ardent spirits, that it would be a pretext for increasing the duties on a necessary of life. I presume a principal reason why a high tax on spirits was admitted, was in order to discourage the use of it among ourselves. If this was the intention of the committee, I have no objection to the burthen; but, even here, I fear difficulties will arise. Did we judiciously examine whether the spirit of the law accords with the habits and manners of the people? and did we assure ourselves of the full execution of the law? If we did not, the act becomes impolitic, because a law which cannot be executed tends to make the Government less respectable. Mr. AMES.--I have not had the advantage of hearing all the arguments in support of the eight cents proposed; but those I have heard I am not satisfied with. The principles on which this tax is founded, I understand to be this: that it is an article of luxury, and of pretty general consumption, so that the duty is expected to fall equally upon all; but that it will not operate in this manner, I think is easily demonstrable. Can a duty of fifty per cent. _ad valorem_, paid, as it were, in an exclusive manner, by the State of Massachusetts, be equal? No, sir. But taking it as a part of the general system, can it be equal unless a proportionable duty, equal to fifty per cent., is laid upon articles consumed in other parts of the Union? No, sir; and is it in the contemplation of gentlemen to lay duties so high as to produce this equality? I trust it is not; because such duties could never be collected. Is not, therefore, eight cents disproportioned to the rates fixed, or intended to be imposed on other articles? I think it is; and, if to these considerations we add what has been said before, relative to its being a raw material important to a considerable manufacture, we cannot hesitate to reject it. However gentlemen may think the use of this article dangerous to the health and morals of our fellow-citizens--I would also beg them to consider, that it is no more so than every other kind of spirituous liquors; that it will grow into an article for exportation; and although I admit we could export it even encumbered with the duty proposed, yet by it we run the risk of having the manufacture totally ruined, for it can hardly now stand a competition at home with the West India rum, much less can it do so abroad. If the manufacturers of country rum are to be devoted to certain ruin, to mend the morals of others, let them be admonished that they prepare themselves for the event: but in the way we are about to take, destruction comes on so sudden, they have not time to seek refuge in any other employment whatsoever. If their situation will not operate to restrain the hand of iron policy, consider how immediately they are connected with the most essential interests of the Union, and then let me ask if it is wise, if it is reconcilable to national prudence, to take measures subversive of your very existence? For I do contend, that the very existence of the Eastern States depends upon the encouragement of their navigation and fishery, which receive a deadly wound by an excessive impost on the article before us. I would concur in any measure calculated to exterminate the poison covered under the form of ardent spirits, from our country; but it should be without violence. I approve as much as any gentleman the introduction of malt liquors, believing them not so pernicious as the one in common use; but before we restrain ourselves to the use of them, we ought to be certain that we have malt and hops, as well as brew-houses for the manufacture. Now, I deny that we have these in sufficient abundance to the eastward; but if we had, they are not taxed. Then why should the poor of Massachusetts be taxed for the beverage they use of spruce, molasses and water? It surely is unreasonable. I hope gentlemen will not adopt the motion for eight cents until they are furnished with some better evidence of its propriety and policy than any that has yet been given, or as I suspect that can be given. Mr. FITZSIMONS was pleased that gentlemen went so fully into a discussion of a subject which they conceived of great importance, but he begged them not to lose sight of an observation that had already been made, that whenever a particular duty was supposed to bear hard on any one member of the Union, it ought to be regarded as a part only of a system bearing equally upon all. He was a friend to commerce, it was his particular profession, and what he had principally devoted his attention to; and therefore it might justly be imagined he was unwilling to fetter it with restraints; but as a member of this body, he considered it proper to forego a pertinacious adhesion to that system, when its interest came in competition with the general welfare. The gentleman from Massachusetts (Mr. Ames) has represented the proposed regulation as tending eventually to the ruin of the commerce, fisheries, and manufactures of that State. I do not believe (added he) such a consequence would result from a duty of eight cents on a gallon of molasses; if I did, I would be one of the last to advocate the measure; but to understand this circumstance more fully, let us proceed to an inquiry of the ground on which we stand. The State of Massachusetts imports a greater proportion of this article than any other in the Union; she will have therefore (say the opponents of the measure) to pay exclusively all the impost upon it. Let us examine this. Some part of the molasses is consumed in the substance, but all the remainder is distilled: this must either be consumed in the State, or exported from it; in the latter case, I would propose that all the rum shipped to foreign nations should draw back the duties it had paid as molasses. This would obviate all that was said relative to the competition between this State and other nations at a foreign market. As to what is exported, but consumed in some other parts of the United States, it is but proper that a duty should be paid, and although it may be advanced in the first instance by the people of Massachusetts, yet it will be ultimately paid by the consumers in other parts. What is consumed within the State itself, gentlemen surely do not mean to have excluded from a duty. If they consume more country rum than West India, they pay a less duty than those States which consume a greater proportion of the latter. As to what is used in its raw, unmanufactured state, it will be sufficient to observe, that as it is generally a substitute for sugar, the consumers will therefore avoid the tax on that article, and pay it on the other. In Pennsylvania they mostly use sugar; now, if the people there pay a tax on that article, it is but distributive justice that the people of Massachusetts pay one on the article they use for the same purpose. Mr. GOODHUE.--Fifteen cents, the sum laid on Jamaica spirits, is about one-third part of its value; now eight cents on molasses is considerably more: the former is an article of luxury, as was observed when it was under consideration, therefore that duty might not be improper; but the latter cannot be said to partake of that quality in the substance, and when manufactured into rum, it is no more a luxury than Jamaica spirits. I cannot see, therefore, why molasses ought to be taxed forty or fifty per cent. when the other pays but thirty-three. Surely the substance ought not to pay at this rate--then what good reason can be offered for the measure? Mr. BOUDINOT had attended to the arguments of the gentlemen on both sides of the question, and was led to believe the proportion was not properly observed. By the resolution of Congress in 1783, the molasses was fixed upon due consideration at one penny, and West India rum at fourpence. The proposed proportion was two-thirds of what is charged on West India rum. He thought this too high, as it would be an encumbrance on a considerable manufacture; six cents were therefore a more equitable rate than eight cents were; he believed also, that it was as much as the article would bear, especially if it was considered that the whole of the article was not manufactured into rum, but a large proportion consumed in substance. This might also be near what is intended to be charged on sugar; by fixing it at this rate, the necessity of lowering the duty at some future day would be avoided, which he thought an object worthy of the committee's consideration. Mr. BOUDINOT wished the gentleman to consider the difference in the price; if he did that, he would allow it to be reduced to six cents; if this principle could now be fixed, it would carry them through the whole. Mr. PARTRIDGE allowed, if all the molasses was distilled into rum, that a small duty might be proper; but when it was considered as an article of sustenance to the poor, and as a requisite to the support of the fisheries and navigation, he hoped the committee would allow but a very small one indeed. He wished it was possible to discriminate between what was manufactured into rum, and what was consumed in the raw state, because a higher duty might be collected in the former case than in the latter. Mr. FITZSIMONS stated, that there were 327,000 gallons of rum imported into Pennsylvania in 1785, which would tend to show how great a part was consumed by the citizens of the Union; a demand in one State so great as this, proved how likely it was for New England rum to rival the West India. He thought the prices of the two articles gave the country rum a very considerable advantage, and therefore a duty of seven cents could not be very injurious to the manufacture. The question was put on seven cents and lost. And it was agreed to fill the blank with six cents. On filling up the blank on Madeira wine, Mr. SHERMAN moved fifteen cents. Mr. GILMAN moved twenty cents, and Mr. HARTLEY moved thirty cents, in order (as he observed) to make it correspond with the rate per cent. on the value; as the principle of proportion seemed to be admitted by the committee. Mr. SHERMAN said, it appeared to him to be pretty well proportioned; because those who accustomed themselves to drink wine, consumed two or three times as much as those who used spirits, and consequently paid a due proportion. Mr. FITZSIMONS.--I shall move you, sir, that the blank be filled with fifty cents. I observed some gentlemen, in their arguments on the last article, laid great stress upon the impropriety of taxing the necessaries of life that were principally consumed by the poorer class of citizens. I do not think any of the members of this committee consider the article of Madeira wine a necessary of life, at least to those whose incomes are only sufficient for a temperate subsistence; therefore no objection of this kind can be made on the present occasion. The propriety of a high tax on wines, I apprehend, is self-evident, whether we consider the price of the article, or the ability of the people to pay who consume it. The value of a pipe of Madeira wine, I believe, is about two hundred dollars, a hogshead of rum is worth about forty dollars. The ability of those who consume the one and the other are, I suppose, in nearly the same ratio. I do not pretend to know what are the intentions of gentlemen on this subject, but my wish is, to raise so considerable a revenue from imposts as to render it unnecessary to apply to any other mode. If this be the wish of the committee also, they will be inclined to raise a great part of it from the consumption of those people who are best able to pay, among whom we may, with great propriety, reckon the consumers of Madeira wine. Mr. P. MUHLENBERG thought his colleague's observations were very judicious, and said they met exactly his ideas; he therefore seconded the motion for fifty cents. Mr. BLAND.--I am not against laying any sum on this article which there is a probability of collecting; but I am afraid we are running wild in the business, and although we appear to be in search of revenue, we are pursuing a track that will lead us wide of our mark. I am really suspicious, if we lay a duty of fifty cents upon Madeira wine, we shall not have a single gallon entered in any port of the United States, and we shall fully verify to the world the truth of an old maxim, that two and two, in finance, do not make four. I would therefore suggest to the committee, the propriety of considering well, whether they can, or cannot, collect the high duty proposed. If they are well convinced that it can be done, and will satisfy me only that there is a probability of its being the case, I shall cheerfully concur in the motion; but at present, I am of opinion we shall not be able to obtain any revenue whatsoever if the tax is laid so high. Mr. BOUDINOT.--I agree entirely with the principle of laying duties according to their relative value, and hope the committee will keep up the line of proportion as near as possible. It is only in the application of this principle on the present occasion, that I differ with the honorable gentleman from Pennsylvania, for whose opinions I have the highest respect. I confess, too, that he is much better able to ascertain the price of foreign articles than I am; but I believe, with regard to this one of Madeira wine, I have it in my power to ascertain it pretty well. I take it, that a pipe of wine usually costs at Madeira from twenty-five to thirty pounds sterling; but then I would wish the committee to take into consideration that this wine is paid for there in our own produce at a very advantageous rate, which reduces the nominal sterling sum down in value to a like sum of our currency. I therefore look upon it, that we may calculate the cost of a gallon of Madeira wine at one dollar; for I cannot conceive that any gentleman entertains an idea of taxing the risk the merchant runs in importing the wine, or the increased value it obtains during the time it takes to ripen for sale. In laying our duties we ought to apportion it to the value of the article at the time and place of importation, without taking advantage of such adventitious circumstances. Beside, there is a considerable loss attends keeping Madeira. The storage is no inconsiderable expense, and the evaporation is an actual loss in quantity, which the merchant is obliged to replace by filling up the cask. Under these considerations, I think it may be admitted, that twenty or twenty-five cents per gallon is a sufficient tax. Moreover, it may be easily demonstrated, that such a duty would be more productive than fifty cents; because it would be with greater certainty collected. There is another reason that induces me to think twenty cents more proper; fifty cents for a gallon of wine is a large sum for a merchant to lay down in duties; it must abridge his mercantile operations, and consequently tend to discourage the Madeira trade, which, in my humble opinion, is one of the most advantageous America has left to her, from the selfish policy that actuates some foreign Powers; therefore we ought not to burthen it to so great a degree as the proposed duty seems to have in contemplation. Mr. FITZSIMONS withdrew his motion for fifty cents, and moved thirty-three and one-third cents. The question was put upon thirty-three and one-third cents as the highest sum, and agreed to, being twenty-one votes for it, and nineteen against it. The next article "on all other wines," presented itself in order for the consideration of the committee. Mr. HEISTER observed, there were a great variety of wines included in that general expression, the prices of which were very different; some worth even more than Madeira, and others less; he submitted, therefore, to the committee the propriety of discriminating and taxing them according to their value. Mr. BOUDINOT acquiesced in the remark. Mr. FITZSIMONS did not think it worth while, at this time, to engage the committee in making such a discrimination. The rich wines were imported in no very considerable quantities, and if the duty was laid pretty high, it would tend to exclude the most inferior and low wines from being introduced. It was thereupon agreed to lay twenty cents on all other wines. The next article on the list was "bohea tea," on which Mr. FITZSIMONS observed, that he meant this article not only as a revenue, but as a regulation of a commerce highly advantageous to the United States. The merchants of this country have, from a variety of circumstances, and finding their trade restrained and embarrassed, been under the necessity of exploring channels to which they were heretofore unaccustomed. At length they have succeeded in discovering one that bids fair to increase our national importance and prosperity, while at the same time it is lucrative to the persons engaged in its prosecution. I mean, sir, the trade to China and the East Indies. I have no doubt but what it will receive the encouragement of the Federal Government for some time to come. There is scarcely any direct intercourse of this nature, but what requires some assistance in the beginning; it is peculiarly necessary in our case, from the jealousy subsisting in Europe of this infant branch of commerce. It has been thought proper, under some of the State governments, to foster and protect a direct communication with India. I hope the Government of the United States has an equal disposition to give this trade their encouragement. I wish, therefore, the committee would pass over the article for the present, and permit it to come in at another place in the list, where I mean to move a discrimination in the duty on teas, according as they are imported, directly from China in our own ships, or in any ships from Europe. The articles of teas and pepper were passed over for the present. Mr. BOUDINOT proposed one cent per pound on sugar. Two cents were afterwards proposed, when Mr. FITZSIMONS remarked, that one gallon of molasses weighed eight pounds; that at six cents it did not pay a cent per pound; could it, therefore, be called anywise equal to such a tax on sugar? Moreover, sugar is an article of as general consumption as molasses, and when it is of this inferior quality, it enters as much or more into the consumption of the poor as the other, while, at the same time, molasses will sweeten more, according to its weight, than even the best sugar; from which considerations, I think gentlemen will be satisfied by putting it on an equality with molasses; therefore I do not oppose the one cent. On the question, the committee agreed to tax it but one cent per pound, and loaf sugar three cents per pound. All other sugars one and a half cent per pound. On coffee two and a half cents per pound. On motion of Mr. BLAND, the committee rose and reported progress. Adjourned. WEDNESDAY, April 15. A petition of David Ramsay, of the State of South Carolina, was presented to the House and read, setting forth that Mr. William Smith, a member returned to serve in this House as one of the representatives for the State of South Carolina, was, at the time of his election, ineligible thereto, and came within the disqualification of the third paragraph of the constitution, which declares, "that no person shall be a representative who shall not have been seven years a citizen of the United States," and praying that these allegations may be inquired by the House. Referred to the Committee on Elections. Mr. BENSON, from the committee to whom it was referred to consider of and report to the House respecting the ceremonial of receiving the President, and to whom was also referred a letter from the Chairman of a Committee of the Senate to the SPEAKER, communicating an instruction from that House to a committee thereof, to report if any, and what, arrangements are necessary for the reception of the President, made the following report: "That Mr. Osgood, the proprietor of the house lately occupied by the President of Congress, be requested to put the same, and the furniture therein, in proper condition for the residence and use of the President of the United States, to provide for his temporary accommodation. "That it will be most eligible, in the first instance, that a committee of three members from the Senate, and five from the House of Representatives, to be appointed by the Houses respectively, to attend to receive the President at such place as he shall embark from New Jersey for this city, and conduct him without form to the house lately occupied by the President of Congress, and that at such time thereafter, as the President shall signify it will be convenient for him, he be formally received by both Houses. "That a committee of two members from the Senate, and three members from the House of Representatives, to be appointed by the Houses respectively, wait on the Vice President of the United States, as soon as he shall come to this city, and, in the name of the Congress of the United States, congratulate him on his arrival." And a committee of five was balloted for and chosen accordingly, for the purpose of waiting on the President. Another committee of three was appointed to wait on the Vice President. _Duties on Imports._ The House again resolved itself into a Committee of the Whole on the state of the Union, Mr. PAGE in the chair; the question being on inserting, in the list of dutiable articles, beer, ale, and porter-- Mr. FITZSIMONS meant to make an alteration in this article, by distinguishing beer, ale, and porter, imported in casks, from what was imported in bottles. He thought this manufacture one highly deserving of encouragement. If the morals of the people were to be improved by what entered into their diet, it would be prudent in the national Legislature to encourage the manufacture of malt liquors. The small protecting duties laid in Pennsylvania had a great effect towards the establishment of breweries; they no longer imported this article, but, on the contrary, exported considerable quantities, and, in two or three years, with the fostering aid of Government, would be able to furnish enough for the whole consumption of the United States. He moved nine cents per gallon. Mr. LAWRENCE seconded the motion. He would have this duty so high as to give a decided preference to American beer; it would tend also to encourage agriculture, because the malt and hops consumed in the manufacture were the produce of our own grounds. Mr. SMITH (of Maryland) was opposed to such high duties as seemed to be in the contemplation of some members of the committee. He thought enough might be raised if the tax was lowered. He formed this opinion from some calculations he had made with respect to the imports at Baltimore. He stated them to amount for the last year, at the rate now proposed, to £258,163; to this, if he added five other districts in Maryland, the probable amount of which, on the same principle, would be £185,537; then, these two sums multiplied by twelve, the supposed proportion that Maryland ought to bear of the national debt, would produce £5,324,400, a sum exceeding very considerably what the wants of the Union required. Mr. GALE thought a duty of nine cents would operate as a prohibition upon the importation of beer and porter. He remarked the advantages which America possessed in growing malt and hops for the manufacture of these articles. In addition to this, the risk and expense of bringing it from Europe was to be considered. Upon the whole, he concluded so high a duty as nine cents would give the brewers here a monopoly, defeat the purpose of obtaining revenue, enhance the price to the consumer, and thereby establish the use of spirituous liquors. For these considerations he was against that sum. Mr. SINNICKSON declared himself a friend to this manufacture, and thought if the duty was laid high enough to effect a prohibition, the manufacture would increase, and, of consequence, the price be lessened. He considered it of importance, inasmuch as the materials were produced in the country, and tended to advance the agricultural interest. Mr. MADISON moved to lay an impost of eight cents on all beer imported. He did not think this sum would give a monopoly, but hoped it would be such an encouragement as to induce the manufacture to take deep root in every State in the Union; in this case, it would produce the collateral good hinted at by the gentleman from New Jersey, which, in his opinion, was an object well worthy of being attended to. He observed, that, in the State of New York, the article paid a duty equal to six cents on importation, and if brought in foreign vessels, it amounted to eight cents; and yet quantities of it were still imported, which proved that eight cents would not amount to a prohibition. The committee agreed hereupon to charge it at eight cents. On all beer, ale, or porter, imported in bottles, per dozen, twenty-five cents. Agreed to without debate. On every barrel of beef it was moved to lay a duty of a dollar per barrel. Mr. BLAND thought that very little revenue was likely to be collected on this article, let the duty be more or less; and as it was to be had in sufficient quantities within the United States, perhaps a tax amounting to a prohibition would be proper. Mr. THATCHER admitted that there was beef enough to be got in every part of the country, but it was fresh beef. Some States, from local circumstances, were unable to salt and preserve it, therefore a tax on this article would operate as a partial tax upon those States. If there is a sufficient quantity in the other States to answer their own consumption, they will feel no part of the burthen; but it appeared unnecessary to him to lay this restriction, because he found some States capable of exporting beef on terms as reasonably low as any other country could, and it could not, therefore, be contended for as a requisite encouragement to this branch of the agricultural interest. Mr. GOODHUE did not contend that it was necessary to lay a particular duty on beef, although it was among the enumerated articles admitted by the committee. He was satisfied of the fact, that meat could be put up here cheaper than in Europe, and afforded at a less price, so there was little to apprehend from rivalship. Mr. MADISON thought that almost every State in the Union had more of this article than was necessary for its own consumption, and consequently there was no danger of its being imported, unless the quality of the foreign beef was superior. He would not object to gentlemen gratifying themselves with this meat, especially as the consumption was neither so great nor general as to affect the revenue, and therefore he judged it might be struck out. Mr. TUCKER thought with the gentleman from Virginia, that the regulation was unnecessary, and that it would be better to throw it into the common mass, taxable at a certain rate per cent. He therefore moved to have it struck out. Upon these considerations the articles of beef, pork, and butter, were all struck out. Mr. FITZSIMONS moved to lay a duty of two cents on all candles of tallow per pound. Mr. TUCKER observed, that some States were under the necessity of importing considerable quantities of this article also, while others had enough, and more than enough, for their own consumption, therefore the burthen would be partially borne by such States. As the committee had just rejected some articles upon this principle, he would move that this be struck out likewise. Mr. FITZSIMONS.--I am not for striking out, sir. Every article imported into the State that gentleman represents, from which revenue is to be raised, he moves to have struck out; but I wish the committee to consider a moment before they join in sentiments with him. The manufacture of candles is an important manufacture, and far advanced towards perfection. I have no doubt but, in a few years, we shall be able to furnish sufficient to supply the consumption of every part of the continent. In Pennsylvania we have a duty of two pence per pound, and under the operation of this small encouragement the manufacture has gained considerable strength. We no longer import candles from Ireland or England, of whom a few years ago we took considerable quantities; the necessity of continuing those encouragements which the State Legislatures have deemed proper, exists in a considerable degree; therefore it will be politic in the Government of the United States to continue such duties till their object is accomplished. Mr. TUCKER would be glad to know what article it was that South Carolina would not contribute her full proportion of tax upon--he saw none; on the contrary, so far as the enumeration went, the impost would bear unequally upon her, and he feared many others in the list would increase the imposition. He thought it the duty of the committee to guard against an unequal distribution of the public burthen in every case, and therefore wished the duty on this article to be a moderate one; not because it affected the State he represented, for it did not do this to any degree, as wax candies were there principally consumed, the material for which was the production of the Southern States, but because other States, not having this advantage, might be oppressed. Mr. BOUDINOT apprehended most States imported considerable quantities of this article from Russia and Ireland; he expected they would be made cheaper than they could be imported, if a small encouragement was held out by the Government, as the materials were to be had in abundance in our country. Mr. LAWRENCE thought that if candles were an object of considerable importation, they ought to be taxed for the sake of obtaining revenue, and if they were not imported in considerable quantities, the burthen upon the consumer would be small, while it tended to cherish a valuable manufacture. He seconded Mr. FITZSIMON's motion for two cents: which was carried in the affirmative upon the question being put. On all candles of wax or spermaceti, per lb. six cents; cheese, four cents; soap, two cents; boots, per pair, fifty cents; on all shoes, slippers, or goloshes made of leather, ten cents; on all shoes or slippers, made of silk or stuff, ten cents; on all steel unwrought, per 112 lbs.,---- Mr. LEE moved to strike out this last article, observing that the consumption of steel was very great, and essentially necessary to agricultural improvements. He did not believe any gentleman would contend, that enough of this article to answer consumption could be fabricated in any part of the Union: hence it would operate as an oppressive, though indirect tax upon agriculture, and any tax, whether direct or indirect, upon this interest, at this juncture, would be unwise and impolitic. Mr. TUCKER joined the gentleman in his opinion, observing that it was impossible for some States to get it but by importation from foreign countries. He conceived it more deserving a bounty to increase the quantity, than an impost which would lessen the consumption and make it dearer also. Mr. CLYMER replied, that the manufacture of steel in America was rather in its infancy; but as all the materials necessary to make it were the produce of almost every State in the Union, and as the manufacture was already established, and attended with considerable success, he deemed it prudent to emancipate our country from the manacles in which she was held by foreign manufactures. A furnace in Philadelphia, with a very small aid from the Legislature of Pennsylvania, made three hundred tons in two years, and now makes at the rate of two hundred and thirty tons annually, and with a little further encouragement would supply enough for the consumption of the Union. He hoped, therefore, gentlemen would be disposed, under these considerations, to extend a degree of patronage to a manufacture, which a moment's reflection would convince them was highly deserving protection. Mr. MADISON thought the object of selecting this article to be solely the encouragement of the manufacture, and not revenue, for on any other consideration it would be more proper, as observed by the gentleman from Carolina, (Mr. TUCKER) to give a bounty on the importation. It was so materially connected with the improvement of agriculture and other manufactures, that he questioned its propriety even on that score. A duty would tend to depress many mechanic arts in the proportion that it protected this; he thought it best to reserve this article to the non-enumerated ones, where it would be subject to a five per cent. _ad. valorem_. Mr. TUCKER considered the smallest tax on this article to be a burthen on agriculture, which ought to be considered an interest most deserving protection and encouragement; on this is our principal reliance, on it also our safety and happiness depend. When he considered the state of it in that part of the country which he represented on this floor, and in some other parts of the Union, he was really at a loss to imagine with what propriety any gentleman could propose a measure big with oppression, and tending to burthen particular States. The situation of South Carolina was melancholy; while the inhabitants were deeply in debt, the produce of the State was daily falling in price. Rice and indigo were become so low, as to be considered by many not objects worthy of cultivation; and gentlemen will consider, that it is not an easy thing for a planter to change his whole system of husbandry in a moment; but accumulated burthens will drive to this, and add to their embarrassments. He thought an impost of five per cent. as great an encouragement as ought to be granted, and would not oppose that being laid. He called upon gentlemen to exercise liberality and moderation in what they proposed, if they wished to give satisfaction and do justice to their constituents. Mr. FITZSIMONS thought, if gentlemen did not get rid of local considerations, the committee would make little progress. Every State will feel itself oppressed by a duty on particular articles, but when the whole system is perfected, the burthen will be equal on all. He did not desire, for his part, to obtain exclusive advantages for Pennsylvania; he would contend, and undertake to prove, that by the duties already agreed to, that State sacrificed as much as any other. Indeed, if he had said more, he believed himself capable of proving the position. Being of this opinion he hoped the committee would agree to grant her an advantage which would revert back upon the other parts of the Union, without operating even for the present, to the material disadvantage of any. Some States were, from local circumstances, better situated to carry on the manufacture than others, and would derive some little advantage on this account in the commencement of the business. The Eastern States were so situated, perhaps some of the Middle ones also; but will it therefore be insisted upon, that the Southern States pay more of the impost on foreign goods than these? For his part, he never could conceive, that the consumption of those articles by the negroes of South Carolina would contribute to the revenue as much as that of the white inhabitants of the Eastern States. But laying aside local distinctions, what operates to the benefit of one part in establishing useful institutions, will eventually operate to the advantage of the whole. With these considerations, he cheerfully submitted the article to the discretion of the committee, moving to fill the blank with sixty-six cents. Mr. BLAND considered a tax of sixty-six cents a very heavy duty on agriculture and the mechanic arts, and was averse to granting it. Mr. BOUDINOT moved fifty-six cents, which motion was agreed to. On nails and spikes, it was agreed to lay one cent per pound; on tarred cordage, fifty cents per 112 pounds; on untarred cordage, sixty cents per 112 pounds; on twine or pack-thread, one hundred cents per 112 pounds. Mr. MADISON said, that he was not clear as to the policy of taxing cordage. He thought ship-building an object worthy of legislative attention, and questioned the propriety of raising the price of any article that entered so materially into the structure of vessels. But if it was politic to lay an impost on cordage, would it not be the same with regard to hemp? He thought it would, and therefore moved it. Mr. BOUDINOT.--Hemp is a raw material, necessary for an important manufacture, and therefore ought not to be subject to a heavy duty. If it was the product of the country in general, a duty might be proper, but this he believed was not the case. Mr. MADISON.--I said before, I very much doubted the propriety of laying a duty on such articles as entered into ship-building; but if it is necessary to lay a duty on cordage for the purpose of encouraging the manufacture, and making us independent of the world as to that article, it is also politic to endeavor to make us alike independent for the raw material; a great proportion of the land in the Western country is peculiarly adapted to the growth of hemp, and it might be there cultivated to advantage, if the labors of the husbandman were protected by the Government. Mr. BOUDINOT thought the soil of this country ill adapted to the cultivation of hemp; even the strong low lands which are fit for it, soon became exhausted; it impoverished the lands wherever it grew, and destroyed the agricultural stamina. If he was not mistaken in this opinion, he thought the committee would, with him, disagree to the motion. Mr. PARTRIDGE thought a duty on hemp would tend to discourage the American navigation, her trade, and fisheries, without any good resulting to warrant such an injury. It was not ascertained whether hemp could be furnished in any tolerable quantities to answer the demand, and if upon experience, it should be found that the quantity was insufficient, what a stab this would prove to all concerned in ship-building. Mr. AMES expressed a doubt of the policy of taxing either cordage or hemp, because while it tended to encourage the agriculture or manufacture, it discouraged the maritime interest, and therefore the discouragement, in the event, would reflect back upon those interests it was intended to cherish. Mr. MOORE declared the Southern States well calculated for the cultivation of hemp, and, from certain circumstances, well inclined thereto. He conceived it the duty of the committee to pay as much respect to the encouragement and protection of husbandry (the most important of all interests in the United States) as they did to manufactures. Mr. FITZSIMONS thought there was a clear distinction between taxing manufactures and raw materials, well known to every enlightened country. He had no doubt but hemp enough could be raised for the home consumption, nay for exportation also, and why it was not done he could not say. He recollected that before the revolution, very little was imported; now, considerable quantities are brought from England. When such a bulky article is capable of paying double freight, first from Russia and then from England, besides its first cost, he conceived that what was produced in America had a very considerable advantage. It could not be urged that the people are unacquainted with the cultivation, because it had been carried to very great perfection in former years. If eight dollars a hundred is not a sufficient inducement to farmers to raise hemp, it is a proof that they direct their labors to more profitable productions, and why should legislative authority be exercised to divide their attention? Or for this purpose, why should navigation and ship-building be necessarily burthened. He concluded with declaring, that no duty which the Congress would agree to lay, could give encouragement to the cultivation of hemp, if the present price of that article was insufficient. Mr. SCOTT stated a fact or two, being perhaps as well acquainted with the Western country as any member of the committee. The lands along the frontiers, he could assure the committee, were well calculated for the cultivation of this plant; it is a production that will bear carriage by land better than any other, tobacco not excepted. He believed an encouragement of the kind now moved for would bring, in a year or two, vast quantities from that country, at little expense, to Philadelphia, even from the waters of the Ohio; the inhabitants expect some encourgement, and will be grateful for it. Although a gentleman has called it a bulky article, yet as much can be packed upon a horse as a horse can carry, or in a wagon as four horses can draw; so that its bulk will not prevent our countrymen from seeking a market on the waters of the Atlantic. The committee rose and reported, and The House adjourned. THURSDAY, April 16. The House proceeded, by ballot, to the appointment of a committee of five, to attend, with a committee from the Senate, to receive the President of the United States at such place as he shall embark at from New Jersey for this city. The members elected were Messrs. BOUDINOT, BLAND, TUCKER, BENSON, and LAWRENCE. On motion, _Ordered_, That Messrs. GILMAN, AMES, and GALE, be a committee, in conjunction with a committee from the Senate, to wait upon the Vice President of the United States upon his arrival in this city, and to congratulate him thereupon in the name of the Congress of the United States. _Duties on Imports._ The House again resolved itself into a Committee of the Whole on the State of the Union, Mr. PAGE in the chair. Mr. MOORE thought it good policy to encourage the manufacture of cordage, but was not convinced that it was bad policy to encourage likewise the growth of the raw material in America, so that we might become as independent of all the world for this article, as we are already for every other used in the structure of vessels. He believed it would be difficult to persuade the farmer that his interest ought to be neglected to encourage particular artisans: he therefore begged the committee to do as much for them as was in their power, believing that the event of such policy would mutually benefit the manufacturer and agriculturist. Mr. HEISTER remarked, that a heavy duty on hemp would not encourage the raising of it this year, because the time was elapsed for commencing the cultivation; but a duty to take place at some future time, would no doubt be beneficial. He assured the committee of the ability of the land in America to grow hemp equal to any part of the world; and, therefore, joined heartily in giving it legislative encouragement, in order to induce the people to turn their attention more particularly to the subject, but would recommend the duty to be laid so as to commence its operation at a distant day. Mr. WHITE remarked, what was good policy in England might be the contrary in America. England was a maritime nation, and therefore she gave a bounty on such articles as were requisite to support her maritime importance--America was an agricultural country, and therefore ought to attend to the encouragement of that interest. If the Legislature take no notice of this article, the people will be led to believe it is not an object worthy of encouragement, and the spirit of cultivation will be damped; whereas, if a small duty only was laid, it might point out to them that it was desirable, and would induce an increase of the quantity. Our lands are capable of bearing this plant many years without being exhausted. He could not say exactly what sum would be proper to fill the blank with, but mentioned seventy-five cents for the consideration of the committee. Mr. PARTRIDGE admitted the propriety of encouraging agriculture, but it ought not to be done at the expense of the ship-builders, especially as the good would not balance the evil. He told the committee that hemp had risen, within three or four years, forty per cent. in Russia, owing, perhaps, to the increased demand which the present northern war occasioned. This naturally operated to encourage the cultivation in America, and perhaps was sufficient, without the aid now intended to be given. If gentlemen were desirous of having it stand among the selected articles, he should not object, but hoped the duty would not exceed five per cent. Forty cents were about equal to that rate, and he moved to fill the blank with that sum. Mr. WHITE thought with the gentleman from Pennsylvania, that the United States would furnish this article in sufficient abundance, not only for home consumption, but for exportation. The maritime powers of Europe do not raise the article, but obtain it principally from Russia--these powers are as well disposed to take it from us as from Russia. Our back lands are extremely well adapted to its cultivation; a road to bring it to market is opening; the Potomac extends her now navigable waters into the interior country, and a communication will be established with the river Ohio and the western waters. The gentleman from Pennsylvania (Mr. HARTLEY) had hinted at the propriety of settling the western territory; it was his opinion that every encouragement ought to be given them to engage their affection; that the administration of the Government ought to be such as to give satisfaction to all parts of the Union, but it is peculiarly our interest to render that country advantageous; her fertile lands, and streams easy of descent, would pour into the Atlantic States, through the channels he had mentioned, a profusion of wealth, and hemp in abundance. The Shenandoah river disembogues into the Potomac, the South Branch communicates with it also, and a number of other rivers whose lands will produce immense quantities. He considered that this, in a short time, would do more towards encouraging ship-building than a bounty, as had been mentioned by some gentlemen. Mr. BURKE thought it proper to suggest to the committee what might be the probable effect of the proposed measure in the State he represented, (South Carolina,) and the adjoining one (Georgia.) The staple products of that part of the Union were hardly worth cultivation, on account of their fall in price; the planters are, therefore, disposed to pursue some other. The lands are certainly well adapted to the growth of hemp, and he had no doubt but its culture would be practised with attention. Cotton is likewise in contemplation among them, and if good seed could be procured, he hoped it might succeed. But the low, strong, rice lands, would produce hemp in abundance--many thousand tons even this year, if it was not so late in the season. He liked the idea of laying a low duty now, and encouraging it against the time when a supply might be had from our own cultivation. Mr. MADISON feared seventy-five cents was too high; he was doubtful whether it would not have been as well to have left out cordage; for if a duty on hemp was impolitic because it burthened navigation, so also was that on cordage. He by no means approved of measures injurious to ship-building, which he considered in a threefold view: first, as it related to vessels employed in the coasting trade; second, as it respected those employed in those channels of trade, the stream of which depends upon the policy of foreign nations; and third, as it was connected with vessels built for sale. With respect to the first, no doubt but we can prevent any discouragement from the operation of the duty, because we can make such discrimination as will prevent a rivalship; but, in relation to the two other points, and particularly the last, he was sensible that every penny laid upon cordage would enter into the price of the vessel, and, by raising the price, drive the purchasers to seek a better bargain at other hands. Fearful therefore of injuring this interest, he should vote for a small duty at present, in hopes of being able to see, in a little time, sufficient quantities of hemp brought to market, as predicted, at even a less price than is given now for the imported. Mr. SMITH agreed to forty cents, provided the committee would make it one dollar at the end of two years. Mr. MADISON could not judge of the alteration in the circumstances of this country two years hence, and therefore did not like the kind of provision mentioned. He preferred making it a positive sum, and moved fifty cents; which was agreed to. On malt. Mr. SHERMAN thought this might be struck out, on the same principle that beef and pork had been, there was none imported. Mr. FITZSIMONS replied, that there had been considerable and recent importations of this article into the United States--30,000 bushels in one year; certainly this interferes with the products of the country. He moved ten cents per bushel, and it was agreed to. On motion of Mr. AMES, barley was taxed six cents, and lime one hundred cents. He just stated that these articles were imported in considerable quantities from a neighboring State that had not yet adopted the constitution; and, perhaps, said he, our political situation is such as to make some regulation on this head necessary. On nails, spikes, tacks, and brads. Mr. LEE did not think we were ripe for such extensive manufactures as some gentlemen seemed desirous of encouraging; but this was particularly objectionable, because it was a tax upon the improvement of estates, unless the articles could be furnished as cheap and abundantly at home as they were by foreign nations. He moved to strike it out. Mr. MADISON conceived this, like a tax on hemp, would increase the price on ship-building; spikes and nails were necessary for the construction of vessels. Mr. BLAND thought a duty on nails an unequal tax, burthening the Southern States, but not felt by the Northern, who made only enough for their own consumption; he opposed it also on account of its being an article of indispensable necessity. Mr. GOODHUE informed the gentlemen who were opposed to a duty on nails, that great quantities of them were manufactured for exportation in Massachusetts and Pennsylvania, and he believed some other States; and, in a little time, enough might be made to supply all North America. Mr. TUCKER judged, from what was said of the little expense and great facility of manufacturing nails, that it stood in no need of legislative assistance. Why lay a duty on foreign nails, when they cannot rival you if you make them as good and as cheap? Will not the five per cent. duty, with freight and shipping charges, be sufficient encouragement? He thought it would, and therefore was averse to any other duty. He observed also, that it would burthen ship-building, and was, consequently against those employed in that business. Mr. FITZSIMONS was not very solicitous about the duty. He thought the manufacturer would have but little to apprehend if the Legislature should decide against them; for, the fact was, that nails were at this moment made cheaper and, in the opinion of some judges, better than those coming from England. Before the revolution, the people in America were not permitted to erect slitting mills. They now have several, and are independent of all the world for the materials necessary for carrying on the business in the most extensive manner. So far as the duty respected the manufacture in Pennsylvania, it was his opinion that refusing it would do no material injury, and he believed it would draw but little money into the treasury; yet, nevertheless, he was willing to allow a small one, because it conformed to the policy of the States, who thought it proper, in this manner, to protect their manufactures. He believed neither spikes nor nails for ship-building were imported; they were generally large and heavy, and were made in the country, according to the builder's orders. On the motion, nails and spikes were taxed one cent per pound, but tacks and brads were struck out. On salt, per bushel. Mr. BURKE.--I need not observe to the committee that this article is a necessary of life, nor that black cattle, sheep, and horses do not thrive without it; on these considerations alone I should oppose it; but I know likewise that it is a tax particularly odious to the inhabitants of South Carolina and Georgia, to whom the price is already oppressively great. The back parts of that State are obliged to haul all they consume, two, three, or four hundred miles in wagons, for which they pay about seven shillings sterling. Add this to the first cost, which is about one shilling, though sometimes more, and you will find the burthen sustained by those who live remote from the sea-shore sufficiently unequal. I hope, therefore, the committee will not agree to it. Mr. LAWRENCE hoped a duty would be laid on the article; it was in general use, and the consumption so regular, that it was much to be depended upon as a source of revenue; but the duty ought not to be so high as to make it oppressive. He moved to impose a duty of six cents per bushel. Mr. TUCKER felt an aversion to laying a duty on salt for several motives. It would bear harder upon the poor than upon the rich. The true principle of taxation is, that every man contribute to the public burthens in proportion to the value of his property. But a poor man consumes as much salt as a rich man. In this point of view, it operates as a poll-tax, the most odious of all taxes; it does not operate simply as a poll-tax, but is heavier on the poor than on the rich, because the poor consume greater quantities of salted provisions than the rich. Nor does it bear equally upon every part of the country; for it is consumed in a greater proportion by cattle at a distance, than by those near the sea shores. Moreover, the duty collected on the importation will enter into the price of the article, and the countryman will pay the retailer a profit on the tax, perhaps of four times its amount. For which reasons, he was more averse to this article being taxed than any other whatsoever. Mr. SCOTT declared himself decisively against the duty, although he admitted a most certain revenue could be drawn from it, on account of its universal demand and utility. But he did not think these considerations alone amounted to a sufficient reason why this necessary article should be taxed; if they did, the argument would prove too much, it would extend to the use of water and common air. He presumed the old arguments often urged by gentlemen in favor of manufactures did not apply, because no encouragement would be sufficient to establish it. From the nearest part of the Atlantic coast, where salt can be obtained, to the next nearest in the Western territory, is a distance of eight hundred or one thousand miles; all the intermediate space must be supplied from one or the other; over the mountains it must be carried on pack-horses. This of itself is a sufficient tax upon the consumer; how oppressive then must it be to increase the burthen. Mr. MOORE observed upon the inequality, as it respected the consumption of the article by cattle: some States raised more than others, consequently they consumed more; some parts of the same State were in a like situation. The people on the sea-coast pursued merchandise; those in the back parts raised cattle, which he was bold to say consumed five times as much salt as the lower country, and would pay the tax in the same proportion. It has been said, that if they pay more on salt, they pay less on other articles--agreed to. But there are a number more which may perhaps unequally affect them; yet it is an argument of small weight to say, because we in large commercial cities are regulated in a sumptuary manner for indulging in luxuries, you who are obliged to retrench them shall pay a tax upon the necessaries of life. In short, the tax appeared to him not only unpopular, but unjust likewise, and he would not agree to it. Mr. SMITH (of South Carolina.)--If any further arguments were necessary to convince the committee of the impropriety of the present measure, more might be urged, though what has been said is certainly sufficient to demonstrate that it will be attended with a great deal of dissatisfaction, and in proportion to that dissatisfaction will be the danger of having your laws contemned, opposed, or neglected in the execution. It is well known, that however small the duty, it will furnish a pretext to the seller to extort a much greater sum from the consumer. Another observation. It is believed that the inhabitants of the interior part of South Carolina are opposed to the new Government; it will be a melancholy circumstance to entangle ourselves, at this time, among the shoals of discontent; yet no stronger impulse could be given for opposition than the proposed tax; conceiving it in this light, he was against the measure. Mr. SCOTT added, that the price of salt where he lived was four dollars a bushel, the country was settled three or four hundred miles beyond him, and he supposed the price there to be greater. Mr. LAWRENCE thought it would be better for the committee to take time to examine what had been urged against the tax, and as it was the usual time for adjourning, the committee might rise and defer their decision till to-morrow. Whereupon the committee rose, and the House adjourned. FRIDAY, April 17. BENJAMIN CONTEE, from Maryland, appeared and took his seat. _Duties on Imports._ The House again resolved itself into a Committee of the Whole on the state of the Union, Mr. PAGE in the chair; the question of laying a duty on salt recurred. Mr. LAWRENCE.--I had the honor yesterday of delivering my sentiments in favor of this duty; but observations were made by gentlemen from different parts of the House against the measure. The principal objection was, that the tax was an odious one. It was admitted by a worthy gentleman from Pennsylvania (Mr. SCOTT) that all taxes are odious; this is certainly true, for the people are not pleased with paying them; nothing but necessity will induce a Government to have recourse to them. It is also true, that some are more odious than others. From what has been said, it may be seen that a tax on salt is not so in general, but only in particular parts of the Union; the remote inhabitants, it is said, will be dissatisfied, because it increases the price of the commodity, and they use more of it than others. It is mentioned as partaking of the nature of a capitation tax, but this kind of tax is odious, more from its manner of operation than its nature. We find in some States where it is in use, the people live easy under it; for example, it is not complained of in some of the Eastern States. We have not much to apprehend from a tax on salt in this State; the people are satisfied with it; at least the complaints are neither so loud nor so general, as to make us apprehensive for the existence of the Government we live under. Its operations, though the contrary was predicted, go on with as much ease since an impost has been laid, as they did before. I believe, likewise, we have only to try the experiment, to be convinced it would have a similar effect throughout the continent; for I cannot persuade myself that it is generally looked upon in so odious a light as some gentlemen imagine. It was also said, that the tax would be unequal, and the objects of inequality were two. The poor man would pay as much as the rich; but this is not the case; the rich are generally more profuse in their consumption than the poor; they have more servants and dependents also to consume it; consequently the whole amount of their consumption must be in a proportionable ratio. The other inequality was its different operation in different States, and even different parts of the same State. On examination, this objection also may be obviated. Gentlemen tell you the high price of this article at three or four hundred miles distance; is it not hence presumable that there they consume as little as possible, while along the sea-coasts they use it with a liberal hand? But whether it be consumed on the sea-coast, or on the western waters, the tax is the same, or but inconsiderably augmented; for I take it the great addition which is made is in consequence of the charge of carriage. I cannot, therefore, see by what magic gentlemen will prove to you that it is increased four or five fold. We must also take into contemplation the number of persons who consume it; here it will appear, that the weight of population is much greater on the sea-coast than in the western parts of Pennsylvania, Virginia, and Carolina, consequently the consumption must be greater. It was said, the argument I urged was not a good one, because it proved too much, that an article of general consumption was not the best article for taxation; now, I believe the maxim is just, and when examined it will be found so. Taxes, to be just, should affect all, and equally affect them, and not be left to fall partially upon a few. This is more the case with salt than any other article which has yet been taxed, and I believe is the only tax which will get at the pockets of those to whom it is said to be obnoxious. But how comes it, if the other articles are equally consumed in the back countries, that gentlemen did not urge the argument of expense on transportation, and the pretext that a tax would furnish the seller to extort from the consumer. Mr. MADISON.--From the nature of the arguments made use of on this occasion, it is necessary to proceed with some circumspection, though not to depart from that policy which can be justified by reason and experience. I am willing to trust a great deal to the good sense, justice, and penetration of our fellow-citizens for support; and though I think it might be just to lay a considerable duty generally on imported articles, yet it would not be prudent or politic, at this time, to do so. Let us now proceed to consider the subject before us, on the principles of justice and principles of policy. In the first point of view, we may consider the effect it will have on the different descriptions of people throughout the United States, I mean different descriptions, as they relate to property. I readily agree that, in itself, a tax would be unjust and oppressive that did not fall on the citizens according to their degree of property and ability to pay it; were it, therefore, this single article which we are about to tax, I should think it indispensable that it should operate equally, agreeably to the principle I have just mentioned. But in order to determine whether a tax on salt is just or unjust, we must consider it as part of a system, and judge of the operation of this system as if it was but a single article; if this is found to be unequal, it is also unjust. Now, examine the preceding articles, and consider how they affect the rich, and it will be found that they bear more than a just proportion according to their ability to pay; by adding this article, we shall rather equalize the disproportion than increase it, if it is true, as has been often mentioned, that the poor will contribute more of this tax than the rich. When we consider the tax as it operates on the different parts of the United States, dividing the whole into the northern, middle, and southern districts, it will be found that they contribute also in proportion to their numbers and ability to pay. If there be any distinction in this respect, it will be perceived to be in favor of the southern division, because the species of property there consists of mouths that consume salt in the same proportion as the whites; but they have not this property in the middle and northern districts to pay taxes for. The most important objection is, that the western part of our country uses more salt than any other; this makes it unequal; but, considered as a part of a system, the equilibrium is restored, when you find this almost the only tax they will have to pay. Will they contribute any thing by consuming imported spirits? Very little. Yet, this is a principal source of revenue; they will subsist upon what they procure at home; and will they submit to a direct tax, if they murmur at so light a one on salt? Will they submit to an excise? If they would, I trust it is not in the contemplation of gentlemen to propose it. Mr. WHITE, after some doubts, had made up his mind against the article being taxed. We ought to pass no law that is unjust or oppressive in its nature, or which the people may consider as unjust or oppressive; a duty on salt would be considered in that light by a great number. Our constituents expect some ease and relief, particularly the poorer sort of people. It seems to be granted, from all that has been said, that it will affect them in a manner which no other tax can, though, it is said, they will not be affected beyond their proportion, as they pay nothing for the consumption of wine, spirits, &c. because they use none. One reason which influenced the committee to tax those articles, was to abolish the use of them altogether, or prevent the excesses they occasioned. Now will you urge in argument for taxing the poor, that they already practise that temperance which you desire to bring universally about? All taxes, it is admitted, are odious, and some merely from opinion; but if they are odious from opinion, they ought to be carefully guarded against, especially if the Government depends upon opinion for support. Mr. SMITH, of Maryland, said, they collected eight cents in his State, and it caused no complaint that he knew of. The question on imposing six cents on salt was put and carried, as was a motion for a drawback on salted provisions and fish. On manufactured tobacco. Mr. SHERMAN moved six cents, as he thought the duty ought to amount to a prohibition. This was agreed to. On snuff, ten cents per pound. Mr. CARROLL moved to insert window and other glass. A manufacture of this article was begun in Maryland, and attended with considerable success; if the Legislature were to grant a small encouragement, it would be permanently established; the materials were to be found in the country in sufficient quantities to answer the most extensive demand. A desultory conversation arose in the committee respecting the propriety of receiving the motion at this time, when it was agreed to add on all window and other glass, except black quart bottles, ten per cent. _ad valorem_. Mr. CLYMER informed the House of the state of the paper mills in Pennsylvania; they were so numerous as to be able to supply a very extensive demand in that and the neighboring States; they annually produce about 70,000 reams of various kinds, which is sold as cheap as it can be imported. This manufacture certainly is an important one; and having grown up under legislative encouragement, it will be wise to continue it. Thereupon it was agreed to lay an impost of seven and a half per cent. _ad valorem_ on blank books, writing, printing, and wrapping paper, and pasteboard; the same, without debate, was laid upon canes, walking-sticks, whips, clothing ready made, on gold, silver, and plated ware, and on jewelry and paste work; upon cabinet ware, buttons of metal, saddles, gloves of leather, all hats of beaver, fur, wool, or mixture of either, all millinery, castings of iron, or slit or rolled iron, all leather tanned or tawed, or manufactures thereof, except such as are otherwise rated. On every coach, chariot, or other four wheel carriage, and on every chaise, solo, or other two wheel carriage, or parts thereof, fifteen per cent. _ad valorem_. SATURDAY, April 18. Mr. WHITE, from the Committee of Elections, reported that the committee had examined the certificates and other credentials of the members returned to serve in this House, and found them entitled to take their seats; which report was concurred with. _Duties on Imports._ The House again resolved itself into a Committee of the Whole on the state of the Union, Mr. PAGE in the chair. On motion of Mr. GOODHUE, anchors at seven and a half per cent. _ad valorem_, was added. On motion of Mr. SHERMAN, nutmegs, cinnamon, raisins, figs, currants, and almonds, were struck out. Mr. AMES introduced wool cards, with observing that they were manufactured to the eastward as good and as cheap as the imported ones. Mr. CLYMER mentioned, that in the State of Pennsylvania, the manufacture was carried to great perfection, and enough could be furnished to supply the demand. A duty of fifty cents per dozen was imposed on wool cards. On wrought tin ware, seven and a half per centum _ad valorem_; on every quintal of fish, fifty cents; and on every barrel of pickled fish, seventy-five cents. Mr. FITZSIMONS moved the following: On all teas imported from China or India, in ships built in the United States, and belonging wholly to a citizen or citizens thereof, as follows: on bohea tea, per pound, six cents; on all souchong and other black teas, ten cents; on superior green teas, twenty cents; on all other teas, ten cents. On all teas imported from any other country, or from China or India, in ships which are not the property of the United States, as follows: on bohea tea, per pound, ten cents; souchong, and other black teas, fifteen cents; on superior green teas, thirty cents; on all other green teas, eighteen cents per pound. Mr. FITZSIMONS supported the motion, by observing that one effect of the late glorious revolution was, to deprive the merchants of America of most of the channels of commerce which they had before pursued. This circumstance obliged them to search for other sources to employ their vessels in. It had been discovered that a pretty lucrative trade could be carried on with the countries in the east; the merchants have gone largely into it, and it at present gives employment to some thousand tons of American shipping and seamen; our success has been so great, as to excite the jealousy of Europe, and nothing is left undone to cramp or prevent our commercial operations in that quarter. The Legislature of Pennsylvania, impressed with the importance of the subject, had granted it aid by discriminating in the manner he proposed to the committee; and with the like aid from the Government of the United States, the merchants may no longer fear the machinations of the opulent companies in Europe, who are unwilling to let us partake of a trade they so long have had a monopoly of. Already the trade to India has had a very happy effect in favor of our inhabitants, by reducing commodities brought from thence to one half of their former price, and yet a sufficient profit is left to enable those concerned to carry it on with advantage. Mr. MADISON felt a reluctance in being obliged to state his reasons why he doubted the policy of the proposed measure. What, said he, is its object? It is not to add to the revenue, for it will in fact tend to diminish it, in that proportion which the importation from China lessens that from other parts; it is not to increase our commerce, for long voyages are unfriendly to it; it is not to increase the importation of necessary articles, for India goods are mostly articles of luxury; it is not to carry off our superfluities, for these articles are paid for principally, if not altogether, in solid coin. If the trade is beneficial at all to the United States, it must be in this single point of view, that the articles can be imported cheaper through that channel than any other; and, if so, that it is the interest of the people to be supplied as cheap as possible. There are no collateral good purposes to claim our attention in this case. It is not in the nature of things that we should derive any other advantage than the one I have mentioned, without it is that of raising our India commerce from its weak and infant state to strength and vigor; to enable it to continue supplies at a cheaper rate than they could otherwise be obtained. Mr. GOODHUE replied to Mr. MADISON's observations, respecting the mode of paying for India goods, by informing the committee that very considerable quantities of ginseng, naval stores, lumber, and provisions, were shipped; other articles were sent also, and disposed of at ports on this side of China, in order to procure the most suitable cargo; so that we do not pay principally for their commodities in solid coin, but send off superfluities to a considerable amount, much more than if we were to procure our teas and nankeens from any part of Europe. Mr. MADISON had not made the objection merely because the specie was exported, but to show that it did not bring in an equivalent, as the goods were mostly of that kind which are termed luxuries. Mr. BOUDINOT declared himself a friend to the Indian commerce. He thought it encouraged the employment of shipping, and increased our seamen; he knew its advantages to agriculture. The gentleman from Virginia (Mr. MADISON) supposed but little of our productions were sent in exchange for India goods; but our beef, pork, flour, and wheat, were shipped for this purpose, not to China, yet to ports where proper cargoes were taken in to answer the trade. Encouragement and protection were necessary to prevent the large companies in Europe from underselling our merchants, which they would readily do, at considerable loss, if they could, in consequence, put a stop to our trade. He hoped, therefore, the committee would not hesitate in adopting the motion. The motion was adopted accordingly. On coal per bushel ---- cents. Mr. BLAND informed the committee, that there were mines opened in Virginia capable of supplying the whole of the United States, and, if some restraint was laid on the importation of foreign coal, those mines might be worked to advantage. He thought it needless to insist upon the advantages resulting from a colliery, as a supply for culinary and mechanical purposes, and as a nursery to train up seamen for a navy. He moved three cents a bushel. Mr. HARTLEY was willing to admit a moderate duty, but thought three cents would be a great discouragement to those manufactures which necessarily consume large quantities of fuel. He moved one cent. Mr. PARKER said, that a less sum than three cents would not answer the purpose intended. Coal came from England as ballast, and was sold so low, as almost to prevent the working of their mines in Virginia. He hoped, if the committee were disposed to encourage them, they would proportion the means to the end; a duty of one cent would be void; nothing under what was moved by his colleague (Mr. BLAND) could answer the purpose. He hoped, therefore, the committee would agree to three cents. On the question, there appeared a majority in favor of three cents. After which the committee rose, and the House adjourned. MONDAY, April 20. ABRAHAM BALDWIN and JAMES JACKSON, from Georgia, appeared and took their seats. _Duties on Imports._ The House again resolved itself into a Committee of the Whole on the state of the Union, Mr. PAGE in the chair. The following clause of the bill was agreed to, viz: "On all other articles, five per cent. on their value at the time and place of importation, except tin in pigs, tin plates, lead, old pewter, brass, iron or brass wire, copper in plates, wool, dying woods and dying drugs, (other than indigo,) raw hides, beaver, and all other furs, and deer skins." Mr. FITZSIMONS proposed a drawback of six cents per gallon on all rum distilled in the United States, exported without the limits of the same. Mr. MADISON asked if the quantity of rum so exported was very considerable? He believed it was not; and he would not, for the sake of encouraging that branch of trade, open a door by which frauds on the revenue could be committed equal to the whole duty collected. Mr. FITZSIMONS could not say what quantity of rum was exported in that way; but he feared, unless a drawback was allowed, it would be a great injury to the manufacture. At the time the duty of six cents on molasses was laid, he thought it was understood, the committee would allow a drawback on the rum exported. There seems to be an apprehension that the system of drawbacks will operate to the disadvantage of the revenue; but he believed a mode could be devised to prevent frauds, in this case, fully as effectually as on the importation. If this was not done, it would be time enough for gentlemen to oppose it; they would have this opportunity, because a bill, regulating the manner of collection, he presumed, would pass at the same time with the one for levying the duties. If drawbacks were not allowed, it would be a very considerable restraint on commerce, particularly on the India trade, which he believed was likely to be considerably extended. He was sorry the gentlemen from Massachusetts were not there in their places,[20] to give information to the committee respecting the quantity exported from that State; from Pennsylvania the quantity was but small. Mr. FITZSIMONS contended for drawbacks generally, but on this article it was particular injustice to omit it. The manufacture of rum was of considerable importance in the Eastern States, but it would not be able to stand a successful competition with West India rum in foreign countries, while loaded with a duty of six cents per gallon. The tax on molasses was that sum, and he looked upon it to be the same thing as if it had been paid on the rum at distillation; one gallon of the former yielding but one of the latter. Mr. MADISON thought there were very few cases in which drawbacks ought to be allowed, perhaps none but what related to the East India trade. The small proportion of distilled rum exported did not justify so great a risk; but of the small proportion which went abroad, the greatest part went to the coast of Africa. He feared this trade was inconsistent with the good of mankind, and ought to be reprobated instead of encouraged. Mr. BLAND said the committee had spent several days in encouraging manufactures, by selecting articles for revenue, and were now extending their views to the encouragement of commerce. He thought there was some impropriety in combining the clause proposed in this part of the bill, and even doubted if it was in order; therefore would vote against it. The question was put on the motion for a drawback on country rum, and lost. Mr. FITZSIMONS had another clause upon the same subject, only on more general principles; he hoped gentlemen would consider well before they doomed it to share the fate of the former. It was to this purpose: that all the duties paid, or secured to be paid, upon goods imported, shall be returned or discharged upon such of the said goods, as shall within ---- months be exported to any country without the limits of the United States, except so much as shall be necessary to defray the expense that may have accrued by the entry and the safe keeping thereof. The subjects of duties and drawbacks are so connected by their nature, that he did not see how they were to be separated. Gentlemen did not imagine that what had been done tended to favor commerce; it certainly did not. Every impost which is paid is a disadvantage to the person concerned in trade, and nothing but necessity could induce a submission to it. The interest of the landholder is undoubtedly blended with the commercial interest; if the latter receive an injury, the former will have to sustain his proportion of it; if drawbacks are not allowed, the operations of trade will be considerably shackled; merchants will be obliged, in the first instance, to send their cargoes to the place of consumption, and lose the advantage of a circuitous freight, which alone is a profit of no small magnitude. Mr. HARTLEY expressed his sorrow for the last decision of the committee; he wished the question had not been put in the absence of the gentlemen from Massachusetts, who were on a business in some degree of a public nature. The present motion was only just brought in; he submitted, therefore, to the committee, if it were not best to pass it over for the present, in order to give time for consideration. TUESDAY, April 21. Mr. HARTLEY asked and obtained leave of absence. WEDNESDAY, April 22. PETER SYLVESTER, from New York, appeared and took his seat. THURSDAY, April 23. JOHN HATHORN, from New York, appeared and took his seat. FRIDAY, April 24. Mr. BOUDINOT reported, from the committee appointed to attend with a committee from the Senate, to receive the President of the United States, at the place of his embarkation from New Jersey, that the committee did, according to order, together with a committee from the Senate, attend at Elizabethtown, in New Jersey, on the 23d instant, at which place the two committees met the President, and thence embarked for this city, where they arrived about three o'clock in the afternoon of the same day, and conducted him to the house appointed for his residence. The Speaker laid before the House a letter from the Vice President of the United States, enclosing a resolution of the Senate, appointing a committee to consider and report what style or titles it will be proper to annex to the office of President and Vice President of the United States, if any other than those given in the constitution; also to consider of the time, place, and manner in which, and the person by whom, the oath prescribed by the constitution, shall be administered to the President, and to confer thereon with such committee as this House should appoint for that purpose; whereupon, _Ordered_, That a committee, to consist of five members, be appointed for the purpose expressed in the resolution of the Senate. The members elected were Messrs. BENSON, AMES, MADISON, CARROLL, and SHERMAN. _Duties on Imports._ The House then proceeded to consider the resolutions reported by the Committee of the Whole on the state of the Union. Mr. BOUDINOT complained that the articles were generally taxed too high, not too high for the article to bear, but too high for the due collection of the revenue. Every thing we tax should be considered as it relates to the interest of the importer, as well as other circumstances; now, if it is discovered that the duties are so great as to make it a beneficial trade to the merchant to run his goods, he will do so, and injure the revenue. Mr. MADISON was sensible that high duties had a tendency to promote smuggling, and in case those kinds of frauds were successfully practised the revenue must be diminished; yet he believed the sum proposed on spirits was not so high as to produce those effects to any considerable degree. If any article is capable of paying a heavy duty, it is this; if the duty on any article is capable of being collected with certainty, it is this; if a duty on any article is consonant with the sentiment of the people of America, it is this; why then should not the article be made as tributary as possible to the wants of Government? But, besides these favorable circumstances, I think the combination of the merchants will come in aid of the law; the people will also lend their aid. These circumstances would do much toward insuring the due collection of the revenue. Mr. JACKSON seconded Mr. BOUDINOT's motion for reducing the duties, because he was well convinced they were too high even to be well collected, unless we establish custom-houses every ten or twelve miles, like watch-towers, along the sea-coast. When trade is so unproductive, the Legislature ought to be careful how they make it more worth a man's while to live by committing frauds upon the revenue than by practising honest commerce. There is another consideration which particularly regarded the Georgia trade. That country, abounding with lumber of the most luxurious growth, could only exchange it for rum; and a very considerable commerce grew out of this intercourse favorable to Georgia. This would be affected by the imposition of heavy duties; but commercial considerations, we shall be told, form only a secondary object in this business. There is another proposition in which he acquiesced; it would be more convenient, and more to the honor of the House, to make their first essay with low duties; because, if they persisted in laying them high, they would be compelled to an inglorious retreat, and the Government would be insulted. In the State he represented, it was next to impossible to collect the revenue, the country was so intersected with navigable creeks and rivers, if the people were disposed to evade the payment of it; and there was no more certain way to produce this disposition than by making it their interest to defraud you. Mr. BOUDINOT was not ashamed to confess that he wanted the advantages of commercial knowledge on a question where the principles of trade were interwoven; but he opposed high duties on a conviction in his own mind that they could not be collected. He repeated some few of his former arguments to show why he held this opinion; but it was not the particular article of rum that he was opposed to, it was the high scale on which the duties were laid generally, and that only from an idea that greater revenue might be obtained from less duties. Mr. TUCKER wished the duties to be lowered, and proposed to the committee to strike off seven cents from the fifteen; by varying his motion in this manner, he expected the sense of the House could be taken on his proposition first, notwithstanding the rule that "the question shall be put on the highest sum first." He joined in the opinion that high duties were productive of smuggling; that notwithstanding the powers and vigilance of custom-house officers, and the whole Executive, contraband trade is carried on in every nation where the duties are so high; the facility with which it could be done in America ought to show a prudent Legislature the degree of probability; unless this can be guarded against, what will the law avail? It can avail nothing. Besides, the higher the duty is laid, the more you expose the officer to the temptation of being corrupted; when that is done, the revenue will be very unproductive. Mr. BLAND would second the gentleman last up, but thought it was not in order to have the question taken first on the lowest sum. Mr. FITZSIMONS observed to the House, that the decision of the present question, in his mind, involved some very important alterations in the present measure; the consequences resulting from which ought to be well considered. In order, therefore, to gain time for this purpose, he would move an adjournment; whereupon the House adjourned. SATURDAY, April 25. Mr. BENSON, from the committee appointed to consider of the time, place, and manner in which, and of the person by whom the oath prescribed by the constitution shall be administered to the President of the United States, and to confer with a committee of the Senate for the purpose, reported as followeth: That the President hath been pleased to signify to them that any time or place which both Houses may think proper to appoint, and any manner which shall appear most eligible to them, will be acceptable to him: that requisite preparations cannot probably be made before Thursday next: that the President be on that day formally received by both Houses in the Senate Chamber: that the Representatives' Chamber being capable of receiving the greater number of persons, that therefore the President do take the oath in that place, and in the presence of both Houses: that after the formal reception of the President in the Senate Chamber, he be attended by both Houses to the Representatives' Chamber, and that the oath be administered by the Chancellor of this State. The committee further report it as their opinion, that it will be proper that a committee of both Houses be appointed to take order for further conducting the ceremonial. The said report was twice read; and, on the question put thereupon, agreed to by the House. _Ordered_, That Messrs. BENSON, AMES, and CARROLL be a committee on the part of this House, pursuant to the said report. MONDAY, April 27. The SPEAKER laid before the House a letter from the Vice President of the United States, enclosing certain proceedings of the Senate, touching the ceremonial of the formal reception of the President of the United States, by both Houses, which were read, and ordered to lie on the table. Mr. BENSON, from the committee of both Houses, appointed to take order for conducting the ceremonial of the formal reception of the President of the United States, reported as followeth: "That it appears to the committee more eligible that the oath should be administered to the President in the outer gallery adjoining the Senate Chamber, than in the Representatives' Chamber, and therefore submit to the respective Houses the propriety of authorizing their committees to take order as to the place where the oath shall be administered to the President, the resolutions of Saturday, assigning the Representatives' Chamber as the place, notwithstanding." The said report being twice read, _Resolved_, That this House doth concur in the said report, and authorize the committee to take order for the change of place thereby proposed. The SPEAKER laid before the House a letter from the Vice President of the United States, enclosing two orders of the Senate, one of the 13th instant, appointing a committee to confer with any committee to be appointed on the part of this House, respecting the future disposition of the papers, &c. in the office of the late Secretary of the United States: the other of the 27th instant, for the attendance of both Houses, with the President of the United States, after the oath shall be administered to him, to hear divine service at St. Paul's Chapel: which was read, and ordered to lie on the table. TUESDAY, April 28. Mr. RICHARD BLAND LEE, from the committee to whom was recommitted the report respecting the mode of communicating papers, bills, and messages, between the two Houses, reported as followth: "When a message shall be sent from the Senate to the House of Representatives, it shall be announced at the door of the House by the doorkeeper, and shall be respectfully communicated to the Chair, by the person by whom it may be sent. "The same ceremony shall be observed when a message shall be sent from the House of Representatives to the Senate. "Messages shall be sent by such persons as a sense of propriety in each House may determine to be proper." The said report was twice read, and, on the question put thereupon, agreed to by the House. A letter from Matthias Ogden, of New Jersey, referring to sundry petitions from citizens of that State, complaining of illegality in the late election of Representatives for that State to this House was read and ordered to lie on the table. The order of the Senate of the 13th instant was read, appointing a committee to confer with any committee to be appointed on the part of this House, respecting the future disposition of the papers in the office of the late Secretary of the United States; whereupon _Ordered_, That Messrs. TRUMBULL, CADWALADER, and JACKSON, be a committee for that purpose. WEDNESDAY, April 29. The House proceeded to consider the report from the Committee of Elections (which lay on the table) on the petition of David Ramsay, of the State of South Carolina, suggesting that William Smith, returned a member of this House, as elected within that State, was, at the time of his election, ineligible; and the said report being amended to read as followeth: That in this case it will be sufficient in the first instance, that a committee take such proofs as can be obtained in this city respecting the facts stated in the petition, and report the same to the House--That Mr. Smith be permitted to be present from time to time when such proofs are taken, to examine the witnesses, and to offer counter-proofs, which shall also be received by the committee, and reported to the House--That if the proofs so to be reported shall be declared by the House insufficient to verify the material facts stated in the petition, or such other facts as the House shall deem proper to be inquired into, it will then be necessary for the House to direct a further inquiry, and especially the procuring whatever additional testimony may be supposed to be in South Carolina, as the case may require--That all questions arising on the proofs be decided by the House, without any previous opinion thereon reported by a committee. _Resolved_, That this House doth agree to the said report, and that it be an instruction to the Committee of Elections to proceed accordingly. On motion, _Ordered_, That a committee be appointed to prepare and report an estimate of the supplies requisite for the present year, and of the net produce of the impost as agreed to by the House, and that Messrs. GERRY, SMITH, (of Maryland,) and PARKER, be of the said committee. The House proceeded to consider the following resolution of the Senate, to wit: "In Senate, April 27. "_Resolved_, That after the oath shall have been administered to the President, he, attended by the Vice President, and the members of the Senate and House of Representatives, proceed to St. Paul's Chapel to hear divine service, to be performed by the Chaplains to Congress already appointed:" Whereupon, _Resolved_, That this House doth concur with the Senate in the said resolution: amended to read as followeth, to wit: "That after the oath shall have been administered to the President, the Vice President and members of the Senate, the Speaker and members of the House of Representatives, will accompany him to St. Paul's Chapel, to hear divine service performed by the Chaplains of Congress." _Ordered_, That the Clerk of this House do carry the said resolution to the Senate, and desire their concurrence.--Adjourned. THURSDAY, April 30. JONATHAN GROUT, from Massachusetts, appeared and took his seat. This being the day on which the President of the United States was inaugurated, no other business, of course, was attended to. The President's address to both Houses appears in the proceedings of the Senate.[21] FRIDAY, May 1. The SPEAKER laid before the House a copy of the speech of the President of the United States, to both Houses of Congress, delivered yesterday in the Senate Chamber, immediately after his inauguration, which being read, On motion, _Resolved_, That the said speech be committed to a Committee of the whole House. The House accordingly resolved itself into a Committee of the Whole, Mr. PAGE in the chair. And after adopting the following resolution, the committee rose, and reported it to the House, which agreed to it. _Resolved_, That it is the opinion of this committee, that an address to the President ought to be prepared, expressing the congratulations of the House of Representatives, on the distinguished proof given him of the affection and confidence of his fellow-citizens, by the unanimous suffrage which has appointed him to the high station which he fills; the approbation felt by the House of the patriotic sentiments and enlightened policy recommended by his speech; and assuring him of their disposition to concur in giving effect to every measure which may tend to secure the liberties, promote the harmony, and advance the happiness and prosperity of their country. _Ordered_, That a committee to consist of five members be appointed to prepare an address pursuant to the said resolution. The members elected Messrs. MADISON, CLYMER, SHERMAN, GALE, and BENSON. A motion was made that the House do come to the following resolution: _Resolved_, That ---- per annum be the compensation to be allowed to the President of the United States, during the term for which he is to be elected. The said resolution being read, was committed to a Committee of the whole House. The House then proceeded by ballot to the appointment of a Chaplain to Congress on the part of this House. Upon examining the ballots, it appeared that the Rev. WILLIAM LINN was elected. SAMUEL LIVERMORE, from New Hampshire, appeared and took his seat. TUESDAY, May 5. Mr. BENSON, from the committee appointed to consider of, and report what style or titles it will be proper to annex to the office of President and Vice President of the United States, if any other than those given in the Constitution, and to confer with a committee of the Senate appointed for the same purpose, reported as followeth: "That it is not proper to annex any style or title to the respective styles or titles of office expressed in the Constitution." And the said report being twice read at the Clerk's table, was, on the question put thereupon, agreed to by the House. _Ordered_, that the Clerk of this House do acquaint the Senate therewith. Mr. MADISON, from the committee appointed to prepare an address on the part of this House to the President of the United States, in answer to his speech to both Houses of Congress, reported as followeth: _The Address of the House of Representatives to George Washington, President of the United States._ SIR: The Representatives of the People of the United States present their congratulations on the event by which your fellow-citizens have attested the pre-eminence of your merit. You have long held the first place in their esteem. You have often received tokens of their affection. You now possess the only proof that remained of their gratitude for your services, of their reverence for your wisdom, and of their confidence in your virtues. You enjoy the highest, because the truest honor, of being the First Magistrate, by the unanimous choice of the freest people on the face of the earth. We well know the anxieties with which you must have obeyed a summons from the repose reserved for your declining years, into public scenes, of which you had taken your leave for ever. But the obedience was due to the occasion. It is already applauded by the universal joy which welcomes you to your station. And we cannot doubt that it will be rewarded with all the satisfaction with which an ardent love for your fellow-citizens must review successful efforts to promote their happiness. This anticipation is not justified merely by the past experience of your signal services. It is particularly suggested by the pious impressions under which you mean to commence your administration, and the enlightened maxims by which you mean to conduct it. We feel with you the strongest obligations to adore the invisible hand which has led the American people through so many difficulties, to cherish a conscious responsibility for the destiny of republican liberty; and to seek the only sure means of preserving and recommending the precious deposit in a system of legislation founded on the principles of an honest policy, and directed by the spirit of a diffusive patriotism. The question arising out of the fifth article of the Constitution will receive all the attention demanded by its importance; and will, we trust, be decided, under the influence of all the considerations to which you allude. In forming the pecuniary provisions for the Executive Department, we shall not lose sight of a wish resulting from motives which give it a peculiar claim to our regard. Your resolution, in a moment critical to the liberties of your country, to renounce all personal emolument, was among the many presages of your patriotic services, which have been amply fulfilled; and your scrupulous adherence now to the law then imposed on yourself, cannot fail to demonstrate the purity, whilst it increases the lustre of a character which has so many titles to admiration. Such are the sentiments which we have thought fit to address to you. They flow from our own hearts, and we verily believe that, among the millions we represent, there is not a virtuous citizen whose heart will disown them. All that remains is, that we join in your fervent supplications for the blessings of heaven on our country; and that we add our own for the choicest of these blessings on the most beloved of our citizens. Said address was committed to a Committee of the Whole; and the House immediately resolved itself into a committee, Mr. PAGE in the chair. The committee proposing no amendment thereto, rose and reported the address, and the House agreed to it, and resolved that the Speaker, attended by the members of this House, do present the said address to the President. _Ordered_, That Messrs. SINNICKSON, COLES, and SMITH (of South Carolina), be a committee to wait on the President to know when it will be convenient for him to receive the same. Mr. CLYMER, from the committee appointed for the purpose, reported a bill for laying a duty on goods, wares, and merchandise, imported into the United States, which passed its first reading. _Amendment of the Constitution._ [Mr. BLAND presented the application of the Legislature of Virginia, to have a convention called of deputies from all the States, to consider the defects of the Constitution and report amendments; and moved to refer the application to the Committee of the Whole on the state of the Union.] Mr. BOUDINOT.--According to the terms of the Constitution, the business cannot be taken up until a certain number of States have concurred in similar applications; certainly the House is disposed to pay a proper attention to the application of so respectable a State as Virginia, but if it is a business which we cannot interfere with in a constitutional manner, we had better let it remain on the files of the House until the proper number of applications come forward. Mr. BLAND thought there could be no impropriety in referring any subject to a committee; but surely this deserved the serious and solemn consideration of Congress. He hoped no gentleman would oppose the compliment of referring it to a Committee of the Whole; beside, it would be a guide to the deliberations of the committee on the subject of amendments, which would shortly come before the House. Mr. MADISON said, he had no doubt but the House was inclined to treat the present application with respect, but he doubted the propriety of committing it, because it would seem to imply that the House had a right to deliberate upon the subject. This, he believed, was not the case until two-thirds of the State Legislatures concurred in such application, and then it is out of the power of Congress to decline complying, the words of the Constitution being express and positive relative to the agency Congress may have in case of applications of this nature. "The Congress, wherever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution; or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments." From hence it must appear that Congress have no deliberative power on this occasion. The most respectful and constitutional mode of performing our duty will be, to let it be entered on the minutes, and remain upon the files of the House until similar applications come to hand from two-thirds of the States. Mr. BOUDINOT hoped the gentleman who desired the commitment of the application would not suppose him wanting in respect to the State of Virginia. He entertained the most profound respect for her--but it was on a principle of respect to order and propriety that he opposed the commitment; enough had been said to convince gentlemen that it was improper to commit--for what purpose can it be done? what can the committee report? The application is to call a new convention. Now, in this case, there is nothing left for us to do, but to call one when two-thirds of the State Legislatures apply for that purpose. He hoped the gentleman would withdraw his motion for commitment. Mr. BLAND.--The application now before the committee contains a number of reasons why it is necessary to call a convention. By the fifth article of the Constitution, Congress are obliged to order this convention when two-thirds of the Legislatures apply for it; but how can these reasons be properly weighed, unless it be done in committee? Therefore, I hope the House will agree to refer it. Mr. HUNTINGTON thought it proper to let the application remain on the table, it can be called up with others when enough are presented to make two-thirds of the whole States. There would be an evident impropriety in committing, because it would argue a right in the House to deliberate, and, consequently, a power to procrastinate the measure applied for. Mr. TUCKER thought it not right to disregard the application of any State, and inferred, that the House had a right to consider every application that was made; if two-thirds had not applied, the subject might be taken into consideration, but if two-thirds had applied, it precluded deliberation on the part of the House. He hoped the present application would be properly noticed. Mr. GERRY.--The gentleman from Virginia (Mr. MADISON) told us yesterday, that he meant to move the consideration of amendments on the fourth Monday of this month; he did not make such motion then, and may be prevented by accident, or some other cause, from carrying his intention into execution when the time he mentioned shall arrive. I think the subject however is introduced to the House, and, perhaps, it may consist with order to let the present application lie on the table until the business is taken up generally. Mr. PAGE thought it the best way to enter the application at large upon the Journals, and do the same by all that came in, until sufficient were made to obtain their object, and let the original be deposited in the archives of Congress. He deemed this the proper mode of disposing of it, and what is in itself proper can never be construed into disrespect. Mr. BLAND acquiesced in this disposal of the application. Whereupon it was ordered to be entered at length on the Journals, and the original to be placed on the files of Congress. _Duties on Tonnage._ The House then resumed the consideration of the Report of the Committee of the Whole on the state of the Union, in relation to the duty on tonnage. Mr. JACKSON (from Georgia) moved to lower the tonnage duty from thirty cents, as it stood in the report of the Committee on ships of nations in alliance, and to insert twenty cents, with a view of reducing the tonnage on the vessels of Powers not in alliance. In laying a higher duty on foreign tonnage than on our own, I presume, said he, the Legislature have three things in contemplation: 1st, The encouragement of American shipping; 2ndly, Raising a revenue; and 3rdly, The support of light-houses and beacons for the purposes of navigation. Now, for the first object, namely, the encouragement of American shipping, I judge twenty cents will be sufficient, the duty on our own being only six cents; but if twenty cents are laid in this case, I conclude that a higher rate will be imposed upon the vessels of nations not in alliance. As these form the principal part of the foreign navigation, the duty will be adequate to the end proposed. I take it, the idea of revenue from this source is not much relied upon by the House; and surely twenty cents is enough to answer all the purposes of erecting and supporting the necessary light-houses. On a calculation of what will be paid in Georgia, I find a sufficiency for these purposes; and I make no doubt but enough will be collected in every State from this duty. The tonnage employed in Georgia is about twenty thousand tons, fourteen thousand tons are foreign; the duty on this quantity will amount to £466 13s. 4d. Georgia currency. I do not take in the six cents upon American vessels, yet this sum appears to be as much as can possibly be wanted for the purpose of improving our navigation. I shall just mention to the House one observation more, to show that the produce of the Southern States cannot bear a high tonnage duty. The value of rice, tobacco, and indigo has fallen so much in foreign markets, that they are no longer worth the exportation. The merchants complain that they lose by those remittances; and they have now got into the practice of sending off specie; forty thousand dollars have been sent in one vessel. This is a daily practice, and we shall shortly have no specie left to pay our debts. The difficulty will be increased, as no money will remain to pay for the duties imposed on the articles imported. I hope the government will not insist upon our walking before we are able to creep, or compel us to make bricks without straw. These are my sentiments on the present question; if they have weight, the House will agree with me in reducing the duty; but if the House persist in continuing the high rates agreed to in committee, I shall content myself with having done my duty by warning them of the danger. Mr. AMES.--I hope the reduction moved for by the gentleman who has just sat down will not be agreed to; for I trust the House is not satisfied with the reasons offered in its support. A great deal has been now said respecting the jealousy entertained of the advantages given by this preference to some States; a great deal was also said before the committee adopted the measure. I do not think this doctrine of jealousy is natural to us. I know it has been cultivated by the British, and disseminated through the United States; they had their particular views in exciting such ideas; but I do not believe, that because we have various we have opposite interests. Upon examination there will be found but few of our interests that clash with each other so much as to admit a well grounded jealousy. Nature has so arranged our circumstances, that the people of the several States pursue various employments which support each other. If one end of the continent is employed in manufactures and commerce, the other is attentive to agriculture; so far are they, therefore, from being rivals, that, both in a natural and political sense, they mutually are necessary and beneficial to each other's interests. I wish gentlemen, before they insist upon this jealousy, would point out the causes of its existence. So far from this being the case, I believe the individual interest of each part is compatible with the general interest; and that the public opinion is the same, is clearly demonstrated by the attachment professed by every part to remain in union--it is acknowledged, that on this principle our existence as a nation depends. This being the case, I do not listen with any great degree of concern to arguments founded on that cause. So far from surveying the affluence or ease of my Southern brethren with the jaundiced eye of jealousy, I contemplate their prosperity with ineffable satisfaction. I look with an equal eye upon the success of every State through the whole extent of United America. I wish their interests to be equally consulted; and if I may judge of the feelings of the people, by those of their representatives on this floor, I may venture to say there was never less reason to apprehend discord or envy than at this time. I believe the fact is so, because I feel it. I appeal with confidence to the gentlemen round me, whether they have not found the disposition of those who were suspected most to favor navigation, ready to concede what was asked for the encouragement of every other interest? Whether a like conciliatory conduct has not been observed by the advocates of manufactures? I ask gentlemen, whether the language they have heard from the several parts of this House has not been much more congenial to their sentiments than they expected, and the measures pursued more coincident to their feelings than what they looked for? I believe, at the moment I am making this observation, the breasts of gentlemen beat in concert with it; I am sure my feelings accord most cordially in the sentiment. I believe the encouragement of our navigation is looked upon to be indispensably necessary; its importance has never been denied. Now, I ask if gentlemen are inclined to support and extend our navigation, whether they are not willing to proportion the mean to the end, and adopt measures tending to increase the quantity of American shipping? It has been often justly remarked, that the Constitution, under which we deliberate, originated in commercial necessity. The mercantile part of our fellow-citizens, who are the firm friends to an equal and energetic government, hope the improvement of our navigation may obtain the attention of Congress; it is but justice that it be early attended to, and it will give general satisfaction to find it considered as an important object by the General Government. The most liberal of the friends of American commerce only wish for such regulations as may put our navigation on a footing with foreigners. If other nations have restricted our navigation by regulations or charges, we must restrict them by a tonnage, or some other duty, so as to restore an equality; but this will not be found to be the case in the present instance. The moderate and inconsiderable duty of thirty cents on foreigners in treaty, and fifty cents on others not in treaty, will not enable our vessels to go abroad with as much advantage as foreigners can come here; so that the proposed encouragement may perhaps fall short of procuring us a maritime strength equal to our national security. The observations of gentlemen tending to show that one end of the continent will suffer more by the regulation contemplated by the House than the other, are, I conceive, not well founded. The price of freight will equalize itself. If the people of Carolina or Georgia pay a high freight in consequence of the tonnage duty, the State of Massachusetts must pay the same, or her vessels will go to the southward in search of freight, so that the Eastern States have no peculiar interest in the measure. It has been suggested, that because Massachusetts has foreign vessels in her employ, she cannot transport produce for others--Massachusetts, by reason of that influence which Britain has, is obliged to receive some of her supplies in foreign bottoms, but this is only a proof that the evil requires a remedy. I might here easily draw a picture of the distress to which the Eastern country is subjected for want of a protecting hand: her shipwrights are glad to work for two shillings and sixpence a day, or less, and less will not maintain them and their families. Their lumber is of no value, it lies rotting in the forests, for want of encouragement to frame it into ships; the other artisans are clamorous for employment, and without a speedy relief they will have to desert the country. I believe if this relief is extended to them, it will give a spring to their industry, and a little time will render them serviceable to their fellow-citizens in the South. They will find markets for their tobacco, which is now rotting, and their valuable productions will be transported to all parts of the globe. From these circumstances, I am led to beg gentlemen to consider, that the improvement and extension of our navigation is one of the most important objects that can come before the Legislature; that there are abundant proofs that a regulation in favor of American shipping is absolutely necessary to restore them to an equality with foreigners; and if they are convinced with me of its importance and necessity, they will not think the sums agreed to in committee too high for the purpose of protecting the navigation of the United States. Mr. BURKE.--Something has been said relative to a jealousy subsisting in the Southern States respecting the navigation interest; I shall, therefore, make an observation or two on that subject. So far as my own knowledge of that country goes, I believe the citizens look with indignation at the power which foreigners have over their commerce. So far from being jealous of the Eastern States, they look forward to some future day when their navigation will be secured to that part of the Union. They know that it possesses superior maritime advantages, and expect they will hereafter afford security to them. They know, that from the spirit and industry of the people of New England, they may derive commercial and agricultural benefits. This is also my own judgment on the point. I know they cannot now supply us with vessels to transport our produce, but I hope the time will shortly come when they will have the ability; in the mean time, when I consider how much the Southern staples are fallen in price, and the great debts due in that country, I must say, that I fear a heavy tonnage will be attended with very dangerous consequences. There are very few foreigners but British come among us, and a high duty laid upon their ships will fall severely upon the planters. The Southern people are willing to render any assistance to increase the maritime importance of the Eastern States, as soon as they are able; if, therefore, a distant period is fixed for the commencement of the high duties, I shall be in favor of them; but if they are to take place immediately, I fear they will do a great deal of injury in the present deranged and calamitous situation of our country. Mr. GOODHUE was glad to hear from the several parts of the House, that there was a disposition to give a preference to American shipping. This principle being fixed, it only remained for the House to ascertain the proper degree of encouragement to be given; the rate agreed to in the committee was not more than good policy required. The gentleman from Georgia fears that the people of his State will suffer for want of vessels, or pay a higher freight than their neighbors; but a high duty is not contended for in the first instance, it is only such a degree of encouragement as will enable us to enter into a competition with foreigners in our own carrying trade. The same gentleman has said, Massachusetts has not vessels enough for her own commerce, and, therefore, cannot furnish any for others; although Massachusetts employs 7 or 8,000 tons of foreign shipping; yet it is supposed she supplies the other States with 30,000 tons. The circumstance of 5,000 hogsheads of tobacco lying to rot for want of vessels, when some thousand tons of ours are idle for want of employment, does not prove the want of shipping, so much as that the price of the article is too high for a foreign market. If the produce is held so high as not to bear the expense of transportation, the merchants who import will be obliged to send off money in payment. In order to remedy these inconveniences in future, it will be necessary to hold out sufficient encouragement for the construction of vessels. Perhaps it may be good policy to allow a moderate tonnage duty at this time, to be increased hereafter. Mr. MADISON.--I believe every gentleman who hears the observations from the different quarters of this House, discovers great reason for every friend of the United States to congratulate himself upon the evident disposition which has been displayed to conduct our business with harmony and concert. We have evinced a disposition different from what was expected to arise from the different interests of the several parts of the Union. I am persuaded, that less contrariety of sentiment has taken place than was supposed by gentlemen, who did not choose to magnify the causes of variance; every thing we have hitherto done, tends to make this evident. The importance of the Union is justly estimated by all its parts; this being founded upon a perfect accordance of interest, it may become perpetual. I know that the point before us has often been selected as a proof that there was an incompatibility of interest in the United States. On this opinion I beg leave to remark, that the difference in point of capacity in the several States to build ships, and furnish seamen, is much less than has generally been supposed. From the extremity of the Northern States until we reach South Carolina, materials of all sorts for ship-building can be obtained in abundance from the bounty of nature; even Georgia abounds with materials of superior quality; although their population disqualifies them for ship-building at present, yet their advantages are such as to enable them in a short time to rival the most prosperous State. In the next place, I may remark, that so far as the encouragement of our own shipping will be given at the expense of the people of the United States, it will diffuse and equalize its operations in every part. The ships belonging to one place will, like the people, seek employment in another where better wages are obtained, and this, in its operations, will level any inequalities supposed to arise from legislative interference. WEDNESDAY, May 6. JOHN VINING, from Delaware, appeared and took his seat. The bill for laying a duty on goods, wares, and merchandises imported into the United States, was read a second time, and ordered to be committed to a Committee of the whole House to-morrow. On motion of Mr. SHERMAN, the House entered upon the consideration of the amendments of the Senate to the bill for regulating the time and manner of administering certain oaths. The following amendments being before them, to wit: "That the members of the several State Legislatures, and all executive and judicial officers of the several States, who have been heretofore chosen or appointed, or who shall be chosen or appointed before the first day of August next, and who shall then be in office, shall, within one month thereafter, take the same oath or affirmation, except where they shall have taken it before; which may be administered by any person authorized by the law of the State in which such office shall be holden to administer oaths. And the members of the several State Legislatures, and all executive and judicial officers of the several States, who shall be chosen or appointed after the said first day of August, shall, before they proceed to execute the duties of their respective offices, take the foregoing oath or affirmation, which shall be administered by the person or persons who by the law of the State shall be authorized to administer the oath of office; and the person or persons so administering the oath hereby required to be taken shall cause a record or certificate thereof to be made, in the same manner as, by the law of the State, he or they shall be directed to record or certify the oath of office." Mr. GERRY said, he did not discover what part of the constitution gave to Congress the power of making this provision, except so much of it as respects the form of the oath; it is not expressly given by any clause of the constitution; and if it does exist, must arise from the sweeping clause, as it is frequently termed, in the eighth section of the first article of the constitution, which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or office thereof." To this clause there seems to be no limitation, so far as it applies to the extension of the powers vested by the constitution; but even this clause gives no legislative authority to Congress to carry into effect any power not expressly vested by the constitution. In the constitution, which is the supreme law of the land, provision is made, that the members of the Legislatures of the several States, and all executive and judicial officers thereof, shall be bound by oath to support the constitution. But there is no provision for empowering the Government of the United States, or any officer or department thereof, to pass a law obligatory on the members of the Legislatures of the several States, and other officers thereof, to take this oath. This is made their duty already by the constitution, and no such law of Congress can add force to the obligation; but, on the other hand, if it is admitted that such a law is necessary, it tends to weaken the constitution which requires such aid; neither is any law, other than to prescribe the form of the oath, necessary or proper to carry this part of the constitution into effect; for the oath required by the constitution being a necessary qualification for the State officers mentioned, cannot be dispensed with by any authority whatever other than the people, and the judicial power of the United States, extending to all cases arising in law or equity under this constitution. The Judges of the United States, who are bound to support the constitution, may, in all cases within their jurisdiction, annul the official acts of State officers, and even the acts of the members of the State Legislatures, if such members and officers were disqualified to do or pass such acts, by neglecting or refusing to take this oath. He concluded his observations, by submitting to the House the propriety of appointing a Committee of Conference, to state to the Senate the doubts of the House upon this subject. Mr. BLAND had no doubt respecting the powers of Congress on this subject. The evident meaning of the words of the constitution implied, that Congress should have the power to pass a law, directing the time and manner of taking the oath prescribed for supporting the constitution. There can be no hesitation respecting the power to direct their own officers, and the constituent parts of Congress; besides, if the State Legislatures were to be left to arrange and direct this business, they would pass different laws, and the officers might be bound in different degrees to support the constitution. He not only thought Congress had the power to do what was proposed by the Senate, but he judged it expedient also, and therefore should agree to the amendment. Mr. JACKSON.--I believe this House, and the other branch of the Legislature, have the power, by the constitution, to pass a law, obliging the officers of the State Governments to take the oath required by the constitution that their States have adopted, and which has become the supreme law of the land. I believe the general opinion of the House inclines to favor this sentiment. It then only remains to examine the measure on the principle of policy. Here I must give my opinion. I believe, sir, that it is not time to bring it forward, that it is not expedient at present, because some jealousies exist respecting the jurisdiction of the Federal and State Governments. The States had better be left to regulate this matter among themselves, for an oath that is not voluntary is seldom held sacred. Compelling people to swear to support the constitution, will be like the attempts of Britain, during the late revolution, to secure the fidelity of those who fell within the influence of her arms, and, like those attempts, they will be frustrated; the moment the party could get from under her wings, the oath of allegiance was disregarded. If the State officers will not willingly pay this testimony of their attachment to the constitution, what is extorted from them against their inclination is not much to be relied on. Besides, it argues a jealousy in the National Government, which can have no foundation. Can any thing show more friendly to the Union than adopting the constitution, and sending us here to administer it? If we judge from these circumstances, there is good reason to believe that the State Governments will pay a proper attention to the duty enjoined upon them by the constitution. I shall readily agree, if they do not pay this attention, that the National Legislature ought to exercise its powers to compel them; but they know the necessity there is for conforming to what the constitution orders; if they neglect it, it becomes in some degree a relinquishment of their power in government. No State Legislature can pass an act that will have the efficacy of a law. Suppose a judge on the bench were to condemn a criminal to die for an offence; the sentence could not be carried into execution, if the judge had omitted to qualify himself for the discharge of the duties of his office. In short, there would be a total stagnation of the Government, its vital powers would be suspended, until they were revived by the action of the constitution. Besides, the constitution partakes of the nature of a compact; it guaranties to the State Governments the principles of a republican government, conditionally, that the States conform themselves to what is declared in the constitution; they must therefore take the oath directed by the constitution, or infringe the compact; in which case I apprehend, the guaranty is virtually withdrawn; this is another inducement for the States to perform their duty. Mr. LAWRENCE.--I believe, Mr. Speaker, if there is any thing improper in making provision that the officers shall take an oath to support the Government, the fault cannot properly be charged upon us, because the provision is already made, and adopted by our constituents; and we are to suppose that some beneficial effects were intended by it; while we are reprobating the measure, let us take care we do not fall under the censure, which the observation of the gentleman last up brought to our view, of taking an oath, and neglecting to fulfil the duties enjoined by it. I believe, sir, that the persons who are to take this oath in conformity to the constitution, will conceive themselves, after having taken such oath, under an obligation to support the constitution. It has been said by one gentleman, that Congress have not the power to carry this regulation into effect. Only a few words will be necessary to convince gentlemen that Congress have this power. It is declared by the constitution, that its ordinances shall be the supreme law of the land. If the constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently, every general declaration it contains is the supreme law. But then these general declarations cannot be carried into effect, without particular regulations adapted to the circumstances. These particular regulations are to be made by Congress, who, by the constitution, have power to make all laws necessary or proper to carry the declarations of the constitution into effect. The constitution likewise declares, that the members of the State Legislatures, and all officers, executive and judicial, shall take an oath to support the constitution. This declaration is general, and it lies with the supreme Legislature to detail and regulate it. The law is to supply the necessary means of executing the principle laid down; for how can it be carried into effect in any other manner? This explanation, I trust, convinces gentlemen that the power of enacting such a law exists in Congress. But whether it is good policy or not to do it, depends upon a variety of circumstances; for my own part, I think it prudent to make the necessary regulations for carrying into effect this part of the constitution. Mr. SYLVESTER.--I am an advocate for supporting the dignity of the House, and to me it appears somewhat inconsistent that we should change our sentiments in order to conform to the amendment of the Senate, without knowing the reason upon which they have founded the proposed measure. No doubt but sufficient reasons have occurred to them, but none have appeared to this House. If we are to follow the Senate in all the alterations they propose, without hearing reasons to induce a change, our time in deliberation is taken up unnecessarily. With respect to any member of this House who has not taken the oath, I concur that they are to pay obedience to what the authority of the Legislature may order on this head. Nay, I am equally clear that the power to regulate the members of the State Governments in taking the oath, is either lodged with the Congress of the United States, or nowhere. But, it appears to me, that the State Legislatures have a concurrent power with Congress in this regulation, for the officers of the General Government and State Governments are called upon in the same manner: "The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath, or affirmation, to support the constitution." These are the words of that instrument. The question, then, is reduced to its expediency, whether it is good policy to exercise the power or not? I am afraid, Mr. Speaker, if we exercise this power, it may be considered an interference with the State Governments. I would rather leave them to their discretion, trusting they would come forward and take the oath; it is unnecessary for us to intermeddle, if they will conform to what is directed by the constitution. It appears to me most prudent, that, till we see a disposition in the State Governments to neglect this duty, we do not, by law, oblige them to perform it. I wish the Government to go on gradually in administering the constitution, and not give umbrage even to its enemies, by a compulsory act, when there appears no necessity for it. I could not concur in the amendment proposed by the Senate, even if I considered it not inconsistent in the House to adopt a measure they had previously rejected, unless some good reasons were offered to show its propriety; not but if I have been mistaken, I am always ready to retract my error, upon better information. Mr. SHERMAN was not afraid of being charged with inconsistency. He had voted against a similar clause when the bill was before the House, but he was convinced now of its propriety; he thought it more eligible to have a general provision for taking the oath, than particular ones. It also appeared necessary to point out the oath itself, as well as the time and manner of taking it. No other Legislature is competent to all these purposes; but, if they were, there is a propriety in the supreme Legislature's doing it. At the same time, if the State Legislatures take it up, it cannot operate disagreeably upon them, to find all their neighboring States obliged to join them in supporting a measure they approve. What a State Legislature may do, will be good as far as it goes; on the same principle, the constitution will apply to each individual of the State officers--they may go, without the direction of the State Legislature, to a justice, and take the oath voluntarily. This, I suppose, would be binding upon them. But this is not satisfactory; the Government ought to know that the oath has been properly taken, and this can only be done by a general regulation. If it is in the discretion of the State Legislatures to make laws to carry the declaration of the constitution into execution, they have the power of refusing, and may avoid the positive injunctions of the constitution. As our power in this particular extends over the whole Union, it is most proper for us to take the subject up, and make the proper provision for carrying it into execution, according to the intention of the constitution. Mr. BOUDINOT wished to remove the gentleman's objections arising from inconsistency. The clause that was rejected by the Committee of the Whole on this bill, contained a penalty for the neglect of taking the oath as prescribed; but the amendment of the Senate was not objectionable on that account, because it contained no such provision. As to the policy or expediency of the messure, he entertained not the least doubt respecting it. The constitution said only that the officers of Government should be bound by oath, leaving to Congress to say what oath. In short it was the duty of the House, as had been well said by the gentleman from New York, (Mr. LAWRENCE,) to detail the general principles laid down in the constitution, and reduce them to practice. He would enforce the expediency of the measure with one further remark. Several of the State Legislatures were sitting at this time, and had expressed a wish or expectation that such a regulation would be made by the General Government; if from principles of false policy the measure did not take place, the State Legislatures might neglect it also, and it was well known that their officers cannot act without it; hence the legality of their acts may be called in question, and give cause to a great deal of uneasiness and confusion. The question on concurring with the Senate in their amendments to the bill was carried, with an amendment, that the members of the State Legislatures be directed to take the oath at their next session respectively. The bill was, by order of the House, returned to the Senate as amended. THURSDAY, May 7. Mr. SMITH, of South Carolina, from the committee appointed to wait on the President of the United States, to know when it will be convenient for him to receive the address of this House, reported: That the committee had, according to order, waited on the President, and that he signified to them that it would be convenient to him to receive the said address at 12 o'clock on Friday, at such place as the House shall be pleased to appoint: Whereupon, _Resolved_, That as the Chamber designed for the President's receiving the respective Houses is not yet prepared, this House will wait on the President to present their address, in the room adjacent to the Representatives' Chamber. _Duties on Tonnage._ The House resumed the consideration of the report of the Committee of the Whole on the duty on tonnage. The proposition was to lay a duty of fifty cents per ton, on all vessels belonging wholly or in part to the subjects of all other Powers. Mr. MADISON moved to reduce it to forty cents, and at the end of the year 1790, to increase it to seventy-five cents. He was satisfied to go as far as seventy-five, because he expected, under such encouragement, a sufficient number of vessels for the whole commerce of America might be constructed. If he was not too sanguine in this expectation, the measure would be both safe and expedient. Mr. SMITH, (of Maryland.)--Both in Virginia and Maryland, British ships pay a higher duty than what is proposed; yet they continue to carry on an extensive trade in those States, which, in my opinion, proves those sums to be too low. American shipping derives considerable advantages from the regulations made in this respect by those two States. If that protection is withdrawn from them by the General Government, it will subject our commerce to very great inconveniences and absolute distress. I shall therefore be opposed to the reduction. Mr. AMES.--The gentlemen from the southward, who suppose their States most likely to be affected by a discrimination in the tonnage duty, have concluded their arguments with a candor, which I conceive does honor to their patriotism. They declare themselves willing to encourage American shipping and commerce, though they do not join with us in the sum we think necessary to be laid on foreign tonnage to accomplish so important an object. If sufficient encouragement is given, and by our regulation American vessels are put on a footing with foreigners, I think we may flatter ourselves with the prospect of seeing our navigation immediately flourish. We have reason to expect a very considerable addition to our shipping in the course of one year. Experience has convinced us, that 25,000 tons can be built within double that period, by the town of Boston alone. The other ports in Massachusetts can furnish 37,000 tons, New Hampshire a considerable quantity, and if the other States furnish their proportion, we shall soon find ourselves independent of European nations for the transportation of our products. If forty cents at present, and the seventy-five cents in expectation, are thought a sufficient encouragement for the purpose, I shall not object to the motion. Mr. FITZSIMONS.--If it is intended to increase the duty at the expiration of two years, it is certainly proper to reduce it in the interim; but I very much question such policy. The business of ship-building, I conceive, stands at this moment in want of the greatest encouragement in our power to give. If sufficient encouragement is given, at this time, to produce a quantity of shipping adequate to the demand, when we once are in possession of them, the business will stand in need of no further encouragement. If the citizens of the United States were now in possession of a sufficient quantity of shipping, and had the ability to employ them, I conceive they would not stand in need of any encouragement whatever. But this is not the case, and therefore an encouragement is requisite. At the conclusion of the last war we were left without shipping, and from our inability to carry on commerce, by reason of the oppression we were subjected to by foreign powers, the building of vessels has made but slow progress in the several States. Hence it becomes necessary to give encouragement sufficient to induce merchants to vest a greater proportion of their capital in this way. The proposed encouragement is not very high, and even under it, I should not expect a quantity of shipping would be furnished equal to the demand, in less than four or five years. It would be brought forward by slow and gradual degrees; they will continue, year by year, to increase them, until the number is competent to the demand. The business of ship-building being so relaxed, persons of that occupation have turned to other avocations, and some sensible advantage must appear, to induce them to return to their original profession. A proof of this is evidenced by the situation of Philadelphia. Before the Revolution, 5,000 tons of shipping were annually built in that city; last year, the whole tonnage was but 1,300, so much has it declined there. If it revives from its present languishing condition, it must be by great fostering care and protection, and by slow and gradual degrees. It does not appear to me, that fifty cents are more than necessary for its immediate encouragement. Gentlemen will be pleased to recollect that it is always in the power of Congress to increase it. Gentlemen will recollect, on the article of hemp, immediate encouragement was contended for. It was not opposed by the commercial gentlemen in this House. But without encouragement is given to building and fitting out ships, the demand for hemp will be small; for very little advantage will arise from exporting it: the great market must be furnished by ourselves. Upon the whole, I conclude against the motion, believing our ship-building to need encouragement more at this time than it will at any subsequent period. Mr. JACKSON.--The gentlemen from Massachusetts have, I must own, behaved with liberality. One is willing to reduce the duty to forty cents, another gentleman is more liberal still--he is willing to go lower; but not so the gentlemen from Pennsylvania and Maryland; they are actuated by other principles. They call to my mind a passage of scripture, where a king, by the advice of inexperienced counsellors, declared to his people, "my father did lade you with a heavy yoke, but I will add to your burthens." A steady pursuit of this counsel brought about the separation of his kingdom. These gentlemen want us even to go further. They bring forward calculations upon the moment, and pass them for information,--the mere calculations of yesterday,--and demonstrate thereby the propriety of their measures. They may consider some States of less importance than others, because they do not contribute the same quantity of revenue; but let them remember, the widow's mite is as good as the rich man's coffers; so the mite of Georgia is equal to the revenue of Pennsylvania. Mr. BURKE.--It has been observed, in the former part of the debate, that the people of the Southern States might buy ships, if they did not build them. There are none owned in Carolina: we are destitute both of ships and seamen, and unable to procure them; it would be folly in us, therefore, to burthen them with duties. Though it is true, that there are men there who live in affluence, are rich in lands and servants, yet I believe they are universally in debt. This may be fairly inferred from the laws they have made to favor debtors. It would take twelve years to enable people there to pay their State and private debts; they are therefore very unable to sustain any new burthens, especially when their produce is so fallen in price as not to pay the expense of cultivation. I do not say this is to be attributed to the want of vessels to carry it off, though there may probably be a great want in this respect; and if there is, gentlemen tell you they are unable to make up the deficiency. If this be the case, they ought to be contented with a moderate duty for the present; and as my mind is strongly impressed with the importance of encouraging the American navigation, I shall join them in doing something that may be productive of that effect. Mr. MADISON.--As there is a great diversity of sentiment respecting the policy of the duty, I am very happy to find it is not prescribed by the geographical situation of our country. This evinces that it is merely difference of opinion, and not difference of interest. Gentlemen of the same State differ as much as gentlemen from the extremes of the continent. As no objection is made to giving some encouragement, we ought to endeavor to harmonize upon the quantum. I doubt very much if any proposition that can now be brought forward will coincide with the sentiments of this body more than the one that is before us. I am not anxious to reduce the encouragement too low, nor to throw to a very distant day the advanced rate intended by my modification of the measure; so gentlemen need not apprehend any evil to arise from its adoption. Gentlemen who are opposed to giving sufficient encouragement to ship-building, ought to recollect an argument that was considered of weight in the case of encouraging manufactures. It is certain that manufactures have been reared up by the fostering care of the State Legislatures, displayed in the shape of protecting duties; but the people, by the adoption of this constitution, have put it out of their power to continue them. The provision for the support of navigation, made by the several States, ought to induce us to suppose even a higher tonnage duty pleasing to them, at least in those States where a higher tonnage duty has been laid. Those States not being able to continue their encouragement, expect that we will attend to their policy, and protect their citizens in the property they were led to acquire under the State regulations. If we disappoint them, they will suffer more than is consistent with good policy. I am not apprehensive that forty cents will be so low as to occasion any discontent. Mr. SMITH, (of South Carolina.)--Gentlemen have endeavored to persuade us, that a high tonnage duty will be beneficial to the Union; but I would as soon be persuaded to throw myself out of a two-story window, as to believe a high tonnage duty was favorable to South Carolina. Gentlemen tell us we are in great want of shipping and a navy--that sufficient encouragement for ship-building must be given before we can expect it; but I think, let the encouragement be what it may, many years will elapse before we have sufficient for the export of our commodities. I know Massachusetts cannot furnish us, because there are adventitious causes to prevent it. The course of the stream in which our navigation has so long flowed, cannot be altered in a day. The debts due from the merchants of that country to the British, will be an insuperable bar. Suppose they should send ships to transport our produce to a foreign market, they have no connections abroad to transact their business, no house in a commercial line to employ in the sales. What are they to bring back in return? They must come in ballast: and will the mere transportation of our crop be a sufficient inducement to engage them to come here? If they had more shipping than they wanted, we should still labor under the same difficulty, and employ foreigners; because the business is unchangeably in their hands, and the very moment the tonnage duty is increased, it will be an inducement to them to raise the price of freight. Mr. LAWRENCE.--There have been circumstances mentioned in the course of this debate, which I think may be useful in ascertaining whether the proposed duty of fifty cents on tonnage be too high or not. It appears that there is a duty in Georgia equal to 1s. 8d. sterling; in South Carolina, 1s. 3d. besides something on goods imported in foreign bottoms; in Virginia and Maryland it is much greater. How, then, can gentlemen from those States contend that the proposed duty is so much too high as to occasion the fatal consequences they foretell? When we consider the valuable produce of the Southern States, we are led to believe that the difference of ten cents per ton can make no material difference in the price. Will it materially affect the price of rice or tobacco? Neither of these articles would pay more than five cents per cask, if the duty should be reduced. The duty, therefore, cannot be fairly said to be too high for the Southern States; it is not contended to be too high for the middle ones; it is not too high for us. If we consider the subject as it relates to revenue, it will form a material object for our attention; if the duty be considered as a bounty to the maritime States, it will be admitted that it is our interest to increase our navigation. The regulation proposed by the gentleman from Virginia, to increase the duty to seventy-five cents at the end of two years, may never take effect; before that period arrives, a treaty may be formed with the nation that is our great commercial rival. I am, therefore, in favor of a permanent regulation, rather than one holding out an encouragement that will never take place. Mr. JACKSON.--The gentleman last up thinks the reduction of ten cents will not materially affect the Southern States, yet he supposes it will injure ship-building: how it can hurt one interest by being reduced, and not wound the other by its increase, I do not clearly understand; for my part, I do not see the weight of such arguments. Mr. LAWRENCE.--I consider the difference of ten cents to be too small for contention; the arguments of the gentlemen in opposition go as much against a duty of forty cents as against fifty. Mr. PAGE.--I have heard all the arguments now brought against this measure, urged over and over again, when a tonnage duty was contended against in the same manner in Virginia. It was then merely a trial, but now we have the arguments resulting from experience in our favor. We find the British shipping still crowding our ports, although the tonnage duty is twice as great as is now proposed; and although the price of produce has fallen within that time, yet I am persuaded it must be attributed to other causes than this. Let the experiment be made with firmness, and I venture to say, it will turn out the same in other States as in ours. I acknowledge the gentlemen's arguments have weight, but they go against any tax whatsoever being laid on tonnage. But experience has demonstrated to us, that such a duty is attended with advantages; it will encourage ship-building, and render us independent for the transportation of our produce. Let, therefore, no suggestions of the kind that have been offered deter us from pursuing, with firmness and decision, the plan adopted by the committee. Mr. WADSWORTH.--If the gentleman who has brought forward this proposition had proposed thirty cents instead of forty, I should have agreed to the motion, because it would have destroyed the discrimination between the vessels of nations in treaty, and those not in treaty with us; but in every other point of view, I should be against a reduction. Foreign vessels will be better circumstanced under a duty of fifty cents, than American free of duty. The charges on foreign bottoms in our ports are very small; there is not, I believe, a vessel of ours that goes to Europe, that does not pay, in light money and other charges, more than fifty cents per ton. Mr. MADISON.--The subject of discrimination is not now within our view; it has been decided by a great majority; I think there were not more than nine members against it. I do not mean, by the arguments that I have urged, to prove that the increase of tonnage has a tendency to raise the price of freight: all my object has been to quiet the apprehensions of gentlemen who hold that opinion. I do not think it will keep away foreign vessels from visiting us, nor increase the burthen on our Southern commerce, so much as has been calculated; and even if it did, the extension of our navigation would be an adequate compensation. The price of freight before the late revolution was higher than it is at present; perhaps it may be lower when ships are furnished in larger quantities. Mr. TUCKER.--I fear the gentlemen who look for a sufficient quantity of shipping to answer the demands of our commerce in so short a space as two years, will find themselves deceived. I think, therefore, it would be improper to lay a high tonnage duty, commencing at that period; if it appears expedient, a future Legislature may give such encouragement, but they are not bound to perform our engagement. After they have seen the effect of the present regulation, they will be better able to judge of what is right in this particular than we can do. I am doubtful whether the measure would place the United States in a better or worse situation than a duty of fifty cents; a commutation of this kind, in order to save ten cents for two years, and admit an addition of twenty-five cents for ever afterwards, appears a doubtful policy. At any rate, the Congress might feel themselves, in some degree, bound to raise the duty to seventy-five cents, when their judgments might tell them it was inexpedient--they will then have cause to complain of our anticipation. I should, I think, rather be in favor of fixing a certain tonnage duty at present, and leave it to the consideration of a future Legislature, whether to increase it or not, according to the circumstances of the case. I think thirty cents as much as can be given, with propriety, at this time; considering the interest of the State I have the honor to represent, I believe it will bear harder on some States than on others, acting partially and not generally. When I speak of the State I represent, I would not be thought actuated by improper motives; I think every gentleman is bound to support, in a proper manner, the interest he is well acquainted with, and believes to be conducive to the general welfare. A great deal has been said respecting the duties that have been laid on tonnage in the Southern States. I begged the attention of the House, on a former occasion, to a striking difference there is in duties imposed by the State, for its own particular advantage, and what are about to be laid for the benefit of the United States. Every duty imposed, I consider as a tax on the inhabitants of South Carolina. If that tax is to bear harder on them than on other States, I pronounce it unequal and unjust. I consider the tax on tonnage in this light; but as I am willing to give encouragement to our navigation, so I shall not oppose a moderate duty on foreign vessels; as I also conceive a discrimination proper between those nations in alliance with us and those with whom we have no treaties subsisting, I am disposed to admit a larger sum than thirty cents: I would propose thirty-five, upon the express condition of reducing the duty already agreed to, to twenty or twenty-five, when a bill shall come forward founded upon the principles now agreed to. The question was here put on Mr. MADISON's motion and lost. The House then decided upon the original proposition, which being agreed to, it was _Resolved_, That there ought to be levied on all vessels entered or cleared in the United States, the duties following, to wit: On all vessels built within the United States, and belonging wholly to citizens thereof, at the rate of nine cents per ton. On all vessels not built within the United States, but now belonging wholly to citizens thereof, at the rate of six cents per ton. On all vessels belonging wholly to the subjects of Powers with whom the United States have formed treaties, or partly to the subjects of such Powers, and partly to citizens of the said States, at the rate of thirty cents per ton. On all vessels belonging wholly or in part to subjects of other Powers, at the rate of fifty cents per ton. _Provided_, That no vessel built within the United States, and belonging to a citizen or citizens thereof, whilst employed in the coasting trade, or in the fisheries, shall pay tonnage more than once in any one year; nor shall any ship or vessel built within the United States pay tonnage on her first voyage. _Provided also_, That no vessel be employed in the transportation of the produce or manufactures of the United States or any of them, coastwise, except such vessels shall be built within the United States, and the property of a citizen or citizens thereof. The same was, on a question put thereupon, agreed to by the House. _Ordered_, That a bill or bills be brought in pursuant to the said resolution, and that Mr. WADSWORTH, Mr. HEISTER, and Mr. SENEY, do prepare and bring in the same.[22] FRIDAY, May 8. The Speaker, attended by the members of the House, withdrew to the room adjoining the Representatives' Chamber, and there presented to the President of the United States the address agreed to on Tuesday last, to which he returned the following answer: GENTLEMEN: Your very affectionate address produces emotions which I know not how to express. I feel that my past endeavors in the service of my country are far overpaid by its goodness; and I fear much that my future ones may not fulfil your kind anticipation. All that I can promise is, that they will be invariably directed by an honest and an ardent zeal; of this resource my heart assures me. For all beyond, I rely on the wisdom and patriotism of those with whom I am to co-operate, and a continuance of the blessings of Heaven on our beloved country. The Speaker and members being returned into the House: Mr. GERRY, from the committee appointed, presented, according to order, a bill for collecting duties on goods, wares, and merchandises imported into the United States; and the same was received and read the first time. _Ordered_, That the Clerk of this House do procure one hundred copies of the said bill to be printed for the use of the members of this House. On motion, _Ordered_, That the committee appointed on the 29th ultimo, to report an estimate of the supplies requisite for the present year, and of the net produce of the impost, as agreed to by the House, be authorized and instructed to collect early and authentic statements of the particular articles of foreign produce and manufactures annually imported into, and of all the articles exported from, the several States, and the value of such imports and exports; also, the number of vessels, both foreign and domestic, entered and cleared during that time, specifying their tonnage, and the nations to which they respectively belong; specifying, also, the exact numbers of each particular description of vessels of each nation, and the amount of tonnage of each particular vessel. _Duties on Imports._ The House, according to the order of the day, resolved itself into a Committee of the whole House on the bill for laying a duty on goods, wares, and merchandises imported into the United States. Mr. PAGE in the chair. Mr. TUCKER.--As I am desirous of beginning with moderate duties, I deem it proper, at this stage of the business, to offer my reasons in support of this opinion, that if it be the opinion of the committee, we may go uniformly through the list, and make the necessary reduction. I am opposed to high duties, particularly for two reasons: First, because they will tend to introduce and establish a system of smuggling; and, Secondly, because they tend to the oppression of certain citizens and States, in order to promote the benefit of other States and other classes of citizens. I cannot say I have a peculiar aversion to a high duty on distilled spirits; I may, therefore, be suspected of inconsistency in moving to reduce it; but I do it on the principle of a general reduction. If I do not succeed on the first article, I shall despair of succeeding on the others. It appears to me that if we lay high duties on the importation of goods, a system of smuggling will be adopted before we can possibly make the necessary provision to prevent it. I take it, sir, that proper regulations respecting the collection is all our security against illicit trade. From a variety of circumstances, it appears to me, we shall not only be a long time in completing such a system, but, for want of experience, many of the regulations will be of a dubious propriety. Gentlemen will recollect we have an extensive sea-coast, accessible at a thousand points, and upon all this coast there are but few custom-houses where officers can be stationed to guard the collection of the duties; therefore, we labor under considerably greater disadvantages than a thicker settled country is liable to. I apprehend, if we consider the present state of our population, we shall conclude it impracticable to establish a sufficient number of custom-houses on those parts of the coast most assailable, to render us perfectly secure in the collection of our duties. If it were practicable, the expense would be a formidable objection; it would require more revenue to support such a system than all we shall derive from the impost. But we know in Great Britain where the duties are high, no expense is spared in the collection, yet smuggling is carried on to a very considerable amount; the risk run by this class of people is very great, the penalties are very severe, and the vigilance of the officers renders detection not very improbable. As this is the case, under the administration of a very powerful Government, I apprehend ours, which is only in its infancy, will be unable to prevent it taking place, otherwise than by a system of moderate duties. If we begin with laying them high, there will be an immediate temptation to engage in a system of smuggling, a system of which may soon be formed, so as to render our future efforts ineffectual; it is better to avoid the temptation, than to punish the evil. A man that is disposed to trade fairly, will be brought under the necessity of falling into the same practice, or giving up his business; for the higher the duty, the greater the advantage the smuggler has over the fair trader, being compelled by necessity to engage in a contraband trade, or to forego the means of a livelihood. Smuggling will be no longer dishonorable, no longer difficult, and none will be found opposing the practice; repeated efforts to corrupt will be successful among even the officers of your customs; they at first may resist the temptation, but when they find the practice general, their vigilance will wink at a contraband trade, and smuggling will be considered as a matter of course. They will consider the reward given them for being out of the way as a benefit to which they are entitled. For these reasons, I shall be against a system of high duties, and because I fear there is danger of a system of smuggling being introduced before proper arrangements are made to prevent it; or if we had time to make such arrangements, they must inevitably be ineffectual. I would observe further, that a high duty not only tends to the encouragement of smuggling, but it likewise raises, in my mind, a scruple respecting the allowance of a drawback, as I conceive every drawback becomes an additional encouragement to smuggling. In many instances, I fear it may be found, that the drawback will amount to more than all the duties paid in the States which are entitled to it. Considering the situation of the States of North Carolina and Rhode Island, which are not in the Union, their contiguity to the other States will increase the facility with which smuggling can be carried on; it will be easy to import articles from Europe and the West Indies into their ports, and send them by land, or even water to the adjacent States. When these are smuggled into the United States, they may be re-exported and entitled to receive a drawback, although the revenue was not collected upon the importation. If we agree to moderate duties it will be much easier to regulate our system on this head; if our revenue is found not to be quite so productive as gentlemen calculate upon a system of higher duties, which, by the by, appears to me to be very unlikely, we shall be better able to judge what we can do after a trial, than we can possibly at present; at any rate, it will be but a small loss; whereas, by a large scale, we may throw the whole Union into confusion, and there will be no remedy by which we can recover what we have now in our power; for a reduction of duties, when they are once laid, is productive of the most serious consequences. Having, therefore, a strong impression upon my mind, that we hazard a great deal in imposing high duties in the first instance, I should not have been satisfied with having done my duty, if I had not stated my doubts and difficulties to the committee; but having done this, I shall content myself with their decision, be it what it may. On motion, the further reading of the bill was postponed--adjourned. SATURDAY, May 9. JEREMIAH VAN RENSSELAER, from New York, appeared and took his seat. The following communications were received from the Senate by Mr. Otis, their Secretary: Mr. SPEAKER: The Senate have disagreed to the report of a committee appointed to determine what style or titles it will be proper to annex to the office of President and Vice President of the United States, if any other than those given in the constitution; and have appointed a committee to consider and report under what title it will be proper for the President of the United States in future to be addressed, and confer thereon with such committee as this House may appoint for that purpose. The Senate have also appointed a committee to view and report how the rooms in the City Hall shall be appropriated, and to confer with any committee this House may appoint for that purpose. _Duties on Imports._ The House, according to the order of the day, resolved itself into a Committee of the whole House on the bill for laying a duty on goods, wares, and merchandises imported into the United States. Mr. PAGE in the chair. Mr. TUCKER.--The observations I made yesterday were intended to apply generally against a system of high duties. As to the particular article of spirits, I have no objection to a high duty being laid upon it, provided it can be strictly collected; for I do not wish to give encouragement to the consumption of that article, though, I fear, no duty we can lay will tend much to discourage it. I thought that if it was the general opinion of the House to lessen the duties, it would be a saving of time to discuss it on a motion to reduce the first article. I repeat the observation, that high duties are improper, because they are impolitic, and likely to defeat the object of revenue: less will be collected on them than on moderate ones. If it be considered as an encouragement to manufactures to lay heavy duties on enumerated articles, it is a tax on one part for the emolument of another. Five per cent. upon all articles imported would raise a considerable revenue, and be a sufficient encouragement to manufactures, especially if we add to this five per cent. the expense of freight and other charges of importation on foreign goods. The five per cent. in the bill is to be collected on the value of the goods at the time and place of importation; the value of goods within the United States is twenty-five per cent. more than they cost in Europe; adding this therefore to the other advantages, and it will be a considerable encouragement; but, besides all this, there are many articles made here as cheap, and cheaper than they can be imported. Gentlemen, who have given us this information, know the fact to be so in their respective States; in them, therefore, the operation of the measure would be just and politic, but it does not apply with the same force as it respects South Carolina and some other States. Although in Boston and Philadelphia they can manufacture certain wares cheaper than they can import them, yet they are not brought at the same price to Charleston: hence the operation is unequal and a partial tax upon us. Another thing to be considered is, even if these articles could be furnished us at home as cheap as we get them from abroad, whether we should have equal advantages? If a cargo of nails were to be sent to Carolina, I would be glad to know how we are to purchase it? Would the makers of shoes be content to go there and retail them? If they would, they might be brought there; but I apprehend, if they have not established connections in that country, they could never be disposed of. Can they expect the planters to come in a body, and take off their goods upon their arrival? It is not even expected that they could; it must be left to them to judge, whether they do not purchase them in a better way, by taking them upon credit, and paying for them in their crop. Gentlemen will not pretend to say that we do not know our own interest, and therefore they will teach us. These reasons will not go down with the people; they will take to themselves the right of judging what is most conducive to their interests. Gentlemen cannot argue from the fact, that we do not consume the articles made within their States, as readily and willingly, as those imported from abroad, merely because we do not wish to encourage them. Facts prove the direct contrary: we have shown a disposition to encourage articles from their States which can be made in our State in great abundance. I will mention a few of them, although it may appear disgraceful for South Carolina to take from any country what she can furnish herself. We have imported to the city of Charleston vegetables for table use, which we can raise as well as any part of the world; yet no complaint was made by the agricultural interest of that State, that we imported foreign productions to their prejudice; no duty was imposed to discourage the use of them; all we considered was, whether they came cheaper when brought from abroad than when raised at home, concluding the cheapest to be the best. On the same principles that are now urged, our citizens might have contended that we should impose a duty on all articles which could be produced at home. No imposition on the importation was laid in order to encourage the productions of our country; the same principle ought to have induced us to lay a duty on the importation of flour. We make but little of that; our constituents consume rice in place of it. It might have been said that a heavy duty should have been laid in order to prevent the interference with our staple commodity. The planters should have said, we will compel you to eat rice, and after being some time in the habit you will find you will like it as well as we; indeed, this argument might be extended to a measure calculated to oblige the other States to use rice in their daily food. It might be said, that it was necessary in order to give encouragement to the productions of the Southern States, but I believe such arguments would have had no weight if they had been used; yet they are similar to what have been brought forward by gentlemen for the encouragement of domestic manufactures. Mr. Speaker, if gentlemen are content with moderate duties, we are willing to agree to them and give every reasonable encouragement in our power, but we cannot consent to very great oppression. I once more wish that gentlemen will consider great duties as imposing a heavier burthen upon the Southern States, as they import more, the other less; and the sum we pay towards the revenue must be in proportion to our importation. I therefore move, in order to begin with the first article, that distilled spirits be reduced six cents per gallon. Mr. JACKSON seconded this motion, and would assign his reasons for it, but they had been so fully stated by the honorable mover. Mr. AMES.--I wish the committee may consider, with the attention the subject demands, whether the duties are too high or not? It is hardly possible, I own, to contemplate this subject as a practical question. We shall find it necessary to consider attentively, before we proceed any further, what the objects of our Government are; and, having discovered them, we are to consider whether the proposed measure will answer the purposes intended. I believe in every point of view that we can possibly consider it, the subject of revenue will be thought to be one of the primary objects to which the power of Government extends. It has long been apprehended, that an ill administration of the new constitution was more to be feared, as inimical to the liberties of the people, than any hostility from the principles of the constitution. Of all the operations of Government, those which concern taxation are the most delicate as well as the most important. This observation applies to all governments. Revenue is the soul of Government, and if such a soul had not been breathed into our body politic it would have been a lifeless carcass, fit only to be buried. I would wish this soul might be actuated by rational principles, that, in establishing a revenue system, we might go on a superior principle to that which has heretofore been the governing principle in the United States; that we might consider what was most adequate to the object. The nature of the revenue system in this Government is to the last degree important; for want of the soul, the late Government was found utterly incapable of invigorating and protecting industry, or securing the Union; therefore these seem to be the great objects which we are to accomplish. I consider the present question as a direct application to the principles of the constitution; it will either support or destroy them. If the revenue system should fall with oppressive weight on the people, if it shall injure some in their dearest interests, it will shake the foundation of the Government. However the newspapers may stand your friends, and trumpet forth panegyrics on the new constitution, if your administration does not give satisfaction, you will find all ineffectual that they can do, whilst the people are against you. This being admitted, the Government will not push their regulations too far; they will consider the weaknesses and prejudices of the individual members of the Union. When they lay a tax, they will consider how far it is agreeable to them, and how far the measure is wise in itself. If it is said the article to be taxed is a luxury, and the Government is zealous to correct the vice, they will be careful they do not do it in too severe a manner; the principle would be capable of great expansion: all the enjoyments of social life are luxuries, and, as objects of revenue, we ought to set a price on the enjoyment, without suppressing their use altogether. Neither ought we to consider what the article in this point of view is able to pay, so much as what we may reasonably expect to collect from it. Mr. MADISON.--The right understanding of this subject is of great importance. The discussion has been drawn out to a very considerable length on former occasions. The chain of ideas on which the subject is suspended, is not very long, nor consists of many links. The present constitution was framed to supply the defects of the one that has preceded it. The great and material defects of it are well known to have arisen from its inability to provide for the demands of justice and security of the Union. To supply those defects, we are bound to fulfil the public engagements; expectation is anxiously waiting the result of our deliberations; it cannot be satisfied without a sufficient revenue to accomplish its purposes. We cannot obtain the money any other way but by taxation. Among the various objects of this nature, an impost on merchandise imported is preferable to all others, and among the long list of articles included in the bill, there is not one more proper for the purpose than the article under consideration. The public sentiment has strongly pointed it out as an object of revenue. I conceive, therefore, that it will be our duty to draw from this source all the money that it is capable of yielding. I am sure that it will not exceed our wants, nor extend to the injury of our commerce. How far the powers of Government are capable of going on this occasion, is matter of opinion; we have had no direct experiment of what can be done under the energy and popularity of the new system; we must recur to other sources for information, and then, unless the circumstances are alike, the comparison may not be true. We have been referred to the experience of other nations; if that is to guide us on this subject, I am sure we shall find precedents for going much farther than is now proposed. If I do not mistake the calculations that I have seen of duties on importation, they amount to more on an average than fifteen per cent.; the duty on ardent spirits in all nations exceeds what is in contemplation to be laid in the United States. I am sensible that the means which are used by those nations to insure the collection, would be odious and improper in this country; but I believe the means which this country is capable of using, without exciting complaint or incurring too much expense, would be as adequate to secure a duty of fifteen per cent. as the powers of any other nation could be to obtain ninety or one hundred per cent. I pay great respect to the opinions of mercantile gentlemen, and am willing to concede much to them, so far as their opinions are regulated by experience; but if I am to be guided by this information, it will not lead me to agree to the reduction of the duties in the manner contended for. It is said, that if we reduce at all, we must go through the whole. Now I doubt whether the duty on the article of rum exceeds that proportion which pervades the long list before us. It does not amount to more than thirty per cent., while some other articles stand at forty; some articles again that are not enumerated, but which fall within the general mass at five per cent., are more likely to be introduced clandestinely than this article, if it stood at fifty per cent. I am sure, if we reduce the whole system in the manner now proposed, all the duty we shall be able to collect will be very incompetent to what the public necessities demand. We must turn our eyes, then, to some other source that will fill up the deficiency. There are but two objects to which in this dilemma we can have recourse--direct taxation and excises. Direct taxation is not contemplated by any gentleman on this floor, nor are our constituents prepared for such a system of revenue; they expect it will not be applied to, until it is found that sufficient funds cannot be obtained in any other way. Excises would give particular disgust in some States, therefore gentlemen will not make up the deficiency from that quarter. I think, upon the whole, it is better to try what will be produced by a plan which is favored by the public sentiment. This will give a support to our laws equal to the greatest energy of a strong execution. The citizens of America know that their individual interest is connected with the public. We shall then have the strong motive of interest acting in favor of the Government in a peculiar manner. But I am not inclined to trust too much to this security. I would take in the aid of the best regulations in our power to provide; these acting in concert, would give a moral certainty to the faithful collection of the revenue. But if gentlemen, notwithstanding, will persist in contending against such a system, and cannot offer us a substitute, we must fail of the primary object for which the Government was created. If upon experience we find that the duties cannot be safely collected, it may be proper to reduce them; but if we set them too low in the first instance, and they do not yield a sufficiency to answer the just demands of the public creditors and the expenses of Government, the public reputation must suffer. Mr. BLAND.--I join with the gentlemen who are disposed to lower the duties. Although I feel the necessity we are under of raising revenue as much as any other gentleman possibly can, yet I think we ought to deliberate fully upon the means before we adopt them. It is demonstrable, nay it is self-evident, that laying high duties, in the first instance, will beget smuggling, and I fear our regulations, respecting the collection, will prove the impracticability of defeating the practice. But when we come to consider the subject in another point of view, I trust such a system will be found unnecessary. The enumerated articles in this bill are very numerous; they are taxed from fifty per cent. downwards; the general mass pays five per cent. The calculations made by the late Congress, who no doubt maturely considered the subject, found a list of eight articles only, and those at one-fourth or one-fifth of the rate now proposed, would produce a revenue of nine hundred and fifteen thousand six hundred and fifty-six dollars annually. When we add to this calculation a circumstance of notoriety, the increase of our importation, we shall find that we levy, or mean to levy, greater sums than the public necessities require. There will not be found specie enough within the United States to pay the duties: four times the rate of what the former Congress recommended, will produce three millions six hundred thousand dollars. The enumeration is four times as great also; hence we may infer, that the amount will reach thirteen or fourteen millions. At least we shall be convinced that we are upon too high a scale. But where is the necessity of raising the impost to this degree? There are other means of revenue, and such as will not give disgust. We have already proposed a duty on tonnage; there is the post-office, and some other things which the ingenuity of Government can devise and is entitled to, for the purpose of revenue; if it is therefore unnecessary to levy such oppressive taxes, what other pretext can be set up for adopting the system? Independent of every other consideration, this ought to induce us to lower them. But there are other and weighty considerations; but as they have been well urged by the gentleman from Massachusetts, (Mr. AMES,) I shall not touch upon them. It is said, that it is merely matter of opinion whether they are too high or not; if so, let us be careful not to venture too far on such ground. It will be much better to reduce it in the manner proposed by the gentleman from South Carolina, and increase it hereafter, than strain the measure too high at present. Mr. SHERMAN.--After this subject had been debated in a Committee of the Whole, and then in the House upon the report, and every argument that could be thought of had been urged, both on the general and particular amount of the duties proposed, and the probable effects of a deduction, I did not expect to have heard the same debate take place again. Gentlemen have a large field to display their abilities in, but I do not think it contains any new matter that will induce a single gentleman to alter his opinion on the subject. The great object is to raise a sum of money adequate to supply our wants; and let us dispute as we will about the mode, the fact is it must be raised. The people have sent their representatives here for this purpose; it is for their benefit that we raise the money, and not for any peculiar advantage to ourselves; the objects are to pay the debts, and to provide for the general welfare of the community. The first of these objects I take to be, that we pay our debts. There are very many meritorious characters who furnished us with essentials in the hour of imminent danger, who, from the imbecility of our former Government, have not been able to get even the interest of what they loaned us. I believe it is the first wish of the people throughout the United States to do justice to the public creditors, and to do it in such a manner, that each may contribute an equal part according to his abilities. We have very considerable arrearages due on this account, upon not only the domestic but foreign debt; there are several instalments not yet discharged, and considerable of the interest not yet paid. No statement can be made of the expenses of Government, so as to ascertain what quantity of revenue will be demanded on that head, but saying that they will be much the same under this Government as the former, and we shall have occasion for a very considerable sum to defray the expenses. I believe we are not able to make a very accurate calculation of what the system, proposed in the bill, will yield. The late Congress contemplated a million of dollars from this source, which, in aid of the requisition, they supposed sufficient for the purpose of paying the instalments of the national debt and interest; but that sum alone will now be found very short of what is wanted without the aid of direct taxes. It is very material that we lay the burthen as equal as possible, in whatever mode we pursue to obtain revenue: a great deal of care has been taken in distributing the proportion with equity; I apprehend, therefore, that we shall not be able to make it much more equitable by any alteration than it is at present. I think, also, that the people will pay more freely a duty of this nature than they will in direct taxes. If gentlemen prevail in getting the duties lowered to what the late Congress proposed, they will find themselves obliged to have recourse to direct taxation for a million and a half, or two millions of dollars. It then only remains for us to consider, whether it will be more agreeable to the people to reduce the impost in this manner, and raise the deficiency by direct taxes. If these duties are to be considered as a tax on the trading part of the community alone, they are improper; but this I believe is not the case; the consumer pays them eventually, and they pay no more than they choose, because they have it in their power to determine the quantity of taxable articles they will use. A tax left to be paid at discretion must be more agreeable than any other. The merchant considers that part of his capital applied to the payment of the duties the same as if employed in trade, and gets the same profit upon it as on the original cost of the commodity. Mr. WHITE.--When this system first came before the committee, I was opposed to enter into an enumeration, because I supposed much time would be taken up in the discussion, which would be an absolute loss of revenue, perhaps to a greater amount than the difference between the duties of such a system and the one proposed by the late Congress; but as it was thought proper by the committee to proceed in the way that we have done, it would be presumption in me to say, that the duty on every article has been perfectly digested and properly laid, but I believe every article stands as well as can be upon the information we are in possession of. I believe very few, if any, of the articles can be disapproved of. Mr. AMES.--The gentleman from Pennsylvania set out with informing us that nothing new had or could be offered on the subject, yet you found, Mr. Chairman, the gentleman had a good deal to say, which I thought new and much to the purpose. As to applying the observation to myself, in common with the advocates for low duties, I shall decline it, only noting that the long discussion which the subject has had, would restrain me from rising on this occasion, more than any remarks of the nature made by the gentlemen from Pennsylvania and Connecticut; but I am actuated by higher motives than a regard to my own feelings, otherwise I should come reluctantly forward to press arguments which the committee may be fatigued with listening to. But I feel such strong impressions on my mind, with regard to the effects our impost law is likely to produce, that I cannot pass it over with a silent vote. I must admonish gentlemen, that the events which may result from our present measures are of the most alarming nature. When I was up before, I endeavored to show the degree of power the Government could exercise without being charged with an ill administration. I shall now proceed briefly to consider the arguments used in reply to what has been advanced by the advocates for moderate duties. I believe it is a good rule to judge of the strength of a cause by the arguments used to defend it; and here I must take the liberty of saying, that the gentlemen on the other side of the question have adduced not one to support their opinion that has carried conviction to my mind. I consider that, by a decision of this question, the good which the new Government is expected to produce may be rendered problematical. Though I am fully impressed with the necessity there is for revenue to supply the public expenses, yet I cannot believe we are likely to obtain more by heavy duties than by temperate ones, and it is to this point that my arguments tend. I do not believe that in either case we shall procure fully sufficient to supply the public demands. If we have to procure 8,000,000 dollars, I venture to say, not near the half could be raised by an impost system; but admitting that it could by a high scale of duties for the first year, it could not be done in the subsequent ones. Now I regard this as a permanent system of revenue, rather than a productive one; if it is laid high, you will find your collection annually diminish. Now, will any Government take such measures in gathering in its harvest, as to ruin the soil? Will they rack-rent their tenants in such a manner as to deprive them of the means of improving the estate? Such can never be the policy of this enlightened country. We know, from the fundamental principles of republics, that public opinion gives the tone to every action of the Government--the laws ought to correspond with the habits and manners, nay, I may almost add, wishes of the people. Well, Mr. Chairman, we are told a tax upon rum is popular; I will agree with the gentlemen; but still a high duty will induce people to run it, and though the consumer may pay the tax without complaining, yet it will go into the pockets of individuals who defraud your revenue. Gentlemen have complained that we do not offer a substitute for what we find fault with. I will endeavor to explain a system I would place in the room of this. I would reduce the duties generally so low as to hold out no encouragement to smuggling; in this case, it is more than probable, the amount of the impost, at the end of one year, would exceed the collection under the present rate. By giving this proof of moderation and wisdom, we should obtain the public favor and confidence; the Government would be acquiring strength, its movements would be more certain, and we could in every subsequent year extend the system, and make the whole productive; then it would be in the power of Government, by aids, to improve our agriculture, manufactures, and commerce. Our imports are now very great; by the increase of our commerce, we shall probably find our revenue produce twice as much seven years hence as it can be expected to do at present. Mr. MADISON.--Let us compare the probable amount of the revenue proposed to be raised by this system, with what is raised in Great Britain, and we shall be apt to infer that they are not so oppressive as gentlemen seem to insinuate. Taking the highest estimate that I have heard mentioned, and it will not produce three millions of dollars. The population of the United States exceeds three millions of souls, hence the tax does not amount to one dollar per head. Great Britain, on the highest estimation, does not contain eight millions of inhabitants, and has an annual revenue to provide of thirteen millions sterling. It is true, she has recourse to other means besides an impost for the purpose of obtaining such a revenue; but those other means are certainly more objectionable in that country, and would be much more so here. Each individual of that kingdom pays eight times as much as is required by the United States; now, where is the propriety of making a comparison between them? Mr. BALDWIN asked if the Government of the United States of America was four or five times worse to be administered than the Governments in Europe? Whether the public opinion was four or five times more unfavorable to such an administration? If these questions are answered in the affirmative, then the inferences which gentlemen have drawn, of the impracticability of collecting the duties laid in the bill, are just. But this is not allowing the General Government the common chance of executing its laws. If it were the worst Government on earth, it might be allowed a chance of doing one quarter of what others perform. If we find by experience, that we are too weak to execute a system which is so much easier than other nations have adopted, it may be proper to alter it. We shall be better able to judge how far we are likely to succeed, when the bill for the collection of the revenue is brought forward. Such a bill is now in the hands of a committee, and it is to be hoped, when they report it, it will be found sufficient to insure the collection; till then, it will be best to continue the rate as it stands. Mr. BOUDINOT.--When we consider the arguments of gentlemen on both sides of this question, we shall find they do not differ so much as, on a superficial view, gentlemen may be led to imagine. It is agreed, that a revenue must be obtained adequate to our wants; but some gentlemen think we shall not receive a greater sum, because we lay a high duty; in this opinion I am with them. I think the present is a favorable time to lay an impost duty, and expect very considerable aid from the public spirit; but I am in favor of a low duty, because I would do nothing to check that spirit. If we lay high duties, and a man finds smuggling the most profitable business he can follow, we shall have to contend with private interest. If we lay a light duty of thirty or forty per cent., the temptation will be too strong for resistance, and the sum collected may not amount to ten per cent. on the whole importation; whereas, if we lay twenty or fifteen per cent. the whole may probably be collected, and the treasury be better filled, because it does not hold out so strong an inducement to evade the payment of the duties. Another objection has been stated, which is of great weight: a system of high duties will necessarily engage us in a system of drawbacks. If we are forced into this measure, it will be a great injury to the revenue. We ought also to consider the inconvenience to which high duties will subject our merchants. It is a common case in America, that our mercantile capitals are limited. Gentlemen engaged in commerce can ill spare so large a proportion in the payment of duties. It has been mentioned by gentlemen, that Great Britain collects four shillings sterling per gallon on rum; yet she is exposed to great difficulties in obtaining it. But I ask gentlemen, whether Great Britain ever laid such a high duty in the first instance, as we are about to impose? I believe they did not: they began, I apprehend, with moderate duties, and increased them as circumstances authorized, when the people became habituated to the imposition. This is the very principle I wish to adopt, and show the world that our conduct is founded in wisdom, propriety, and experience. If we shall discover our mistake in laying high duties, and are driven by necessity to reduce them, such measures will operate to the injury of the fair trader; whereas, if we increase them by degrees, it will be rather favorable to their interest than otherwise; at all events, it will injure none. If a sense of the committee could be obtained on a general reduction of ten or fifteen per cent. on the rate the articles now stand at, I should be glad to vote in favor of such a motion; but I could not approve of reducing the article of rum alone, because I do not think it charged out of proportion with the others. Mr. JACKSON differed from his colleague, (Mr. BALDWIN.) He thought, although the British laid four shillings on rum, they did not collect it; and that their custom-house establishments were so expensive, as to leave a mere trifle for the net produce of the impost duty. If America employed such a host of revenue officers as to secure the payment of high duties, there would be very little left, after compensating their services, to supply the federal treasury. Mr. WADSWORTH desired gentlemen to consider, that the citizens of the United States owned vessels as well calculated for smuggling, as any that were employed between the Netherlands and England; therefore, they had little more security against smuggling than Great Britain. Mr. JACKSON.--It was well observed by the honorable gentleman from Connecticut, (Mr. WADSWORTH,) that America has vessels well adapted for smuggling: I can declare it, from my own knowledge, to be the fact. It is not, Mr. Chairman, the large vessels coming off long voyages that we are to apprehend danger from; it is our coasters, small vessels constantly coming in and going out; these can run goods from foreign ports adjacent to the United States; they are best acquainted with the unfrequented parts, where they can deposit their cargoes with safety, and will make use of these advantages to defraud your revenue. With regard to the equity of the impost system, I conceive direct taxation will be more equitable. We, in the Southern States, shall then pay in proportion to our numbers; but under this law we shall contribute much more. Gentlemen talk of improving the morals of the people by taxation. For my part, I conceive revenue has nothing to do with the morals of the people; therefore, such considerations have no weight on my mind. All that I contemplate is, drawing as much money as we can with equity; and here I believe more can be obtained by a less impost than by a greater; therefore, I am in favor of reducing the duties. It will likewise be more honorable to the Government to begin gradually and win the affections of the people, rather than disgust them by oppressive measures; for if we lose their confidence, we lose our power and authority. Mr. GERRY.--It appears to me, that gentlemen place their arguments on the name of high duties, rather than on principle; for if they were certain that the energy of Government would effect all they aspire at, then it would follow, that we have nothing more to do than to name the sum we want. But if these ideas are not well supported, the superstructure they have raised upon them must fall to the ground. The energy of your Government depends upon the approbation of the people. No doubt the citizens of the United States will support the Government they have adopted, so long as they approve the measures it pursues, but no longer. Gentlemen trust much, on this occasion, to the co-operation which they expect from their constituents; but I would wish them to examine this argument. These duties are to be collected from the several States into which certain goods are imported. If the people of Massachusetts shall conceive any particular duty peculiarly oppressive on them, they will seek to evade it. This opens a door for smuggling all the other articles. I conceive gentlemen to be mistaken with respect to the effects which high duties will produce on the mercantile interest. I think there cannot be a doubt but they will be obliged to smuggle; if they mean to continue their business, their capital will be insufficient for the purposes of commerce and the payment of high duties. Gentlemen will not draw knowledge from the experience of Great Britain; therefore, it is unnecessary to adduce her example. But let us see what we are taught by the practice of our own States. Massachusetts drew a very considerable revenue from an impost; she lately tried to increase it by doubling the duties; but, instead of doing so, they found the revenue lessened, and they were obliged to alter what they had so injudiciously attempted. I am willing to suppose with gentlemen, that the Government is invested by the constitution with sufficient energy to carry any regulation of this kind into effect; but is this the time to try the energy of your Government, when your commerce is struggling with every kind of difficulty and embarrassment? Formerly our merchants were able to extend their operations by the means of an established credit in Britain; but unfortunately this is no longer the case. How, then, is it possible they can continue their trade, when you lop off another part of their capital? Besides, as was said by the worthy gentleman from Virginia (Mr. BLAND), there is not money enough in the United States to pay the duties. I believe it is well known, that our commerce is greatly distressed by the universal want of specie; there has not been less in circulation for many years than there is at this time. Gentlemen who have property cannot convert it into money; then how will the merchant be able to raise cash for the payment of duties equal to thirty or forty per cent. on his capital? These are serious and alarming circumstances, and such as prove to my mind that the commerce was never less able to bear a high impost than at present, nor ever stood in greater need of the fostering hand of Government for its support. If gentlemen are convinced of the truth of these observations, and they are so notorious that they cannot have escaped the knowledge of any one, they will see the necessity of turning their attention to the encouragement of navigation and trade, rather than think of drawing an oppressive revenue from them. Mr. MADISON submitted, whether the burthen would not operate more on the Southern States than the Northern. The duties could be collected in the Middle States--this was proved by the experience of some years; for they had collected in those States, in many instances, duties nearly equal to what were proposed. In the Eastern States, it was the interest of the manufacturers to see the duties were well collected; they had been imposed to favor their interests. The distillers would exert themselves in aiding the Government to collect the duty on foreign rum, because it particularly interfered with country rum; from hence he concluded that the impost could be collected with tolerable certainty even in that country most convenient for carrying on a clandestine trade. Mr. AMES contended that it would be the particular interest of one set of men to evade the payment of the duties. As mankind was governed by interest, it required all the attention of the Government to prevent a breach of the law; because, when the banks and bulwarks of defence were once broken down, the full tide of clandestine commerce would overflow the country. Gentlemen recollected the circumstances which attended the depreciation of the late continental money. Some persons, from motives of interest or necessity, first made a distinction between it and specie, and although every exertion was made by the patriotic among our citizens to prevent the alarming evil, yet every thing was insufficient; they were at length obliged to acquiesce in measures they could not prevent. This was the case on that occasion, and will be the case whenever our laws or regulations run counter to private interest. Mr. SHERMAN.--The gentleman from Massachusetts (Mr. AMES) has said, that because we cannot raise the whole sum necessary to supply our wants, we should be content to stop half way. I know we shall not be able to obtain money enough by the impost to pay off our whole debt, but then I wish to raise as much as possible in this way. I believe the people are able to pay as much as the necessities of the Government require; if they are not, we shall never restore the public credit, which is one of the chief ends of our appointment. I believe they are not only able but willing to contribute sufficient for this purpose. The resources of this country are very great, if they are properly called into action; and although they may not be so great as those of Britain, yet it should be remembered, that nation has occasion for twelve times as much revenue as the United States. Gentlemen have had recourse to popular opinion in support of their arguments. Popular opinion is founded in justice, and the only way to know if the popular opinion is in favor of a measure, is to examine whether the measure is just and right in itself. I think whatever is proper and right, the people will judge of and comply with. The people wish that the Government may derive respect from the justice of its measures; they have given it their support on this account. I believe the popular opinion is in favor of raising a revenue to pay our debts, and if we do right, they will not neglect their duty; therefore, the arguments that are urged in favor of a low duty will prove that the people are contented with what the bill proposes. The people at this time pay a higher duty on imported rum than what is proposed in this system, even in Massachusetts; it is true, it is partly laid by way of excise, but I can see no reason against doing it in this way as well as the other. Mr. LAWRENCE.--It has been intimated by gentlemen in favor of high duties, that it will limit the consumption of foreign articles; if this be the case, the quantity imported will be lessened; if it is our object to raise revenue, it is certainly unwise to destroy the object from which the revenue is to be collected. It is supposed the amount of the duties will be insufficient to answer the public wants; and yet the public creditors have great expectations from this resource. Let us therefore be careful how we destroy it; if revenue is our primary object, and the other considerations but secondary, we should do nothing to operate against that principle. Mr. MADISON.--It does not follow, because it will in some degree limit the consumption, that we ought not to lay a high duty on rum; if it has that effect, it will be an ample compensation for the loss of revenue; but probably, as we extinguish our debt, we shall have the less occasion for the revenue itself. Mr. GOODHUE.--The object of the committee is to raise revenue, I take it. This would, perhaps, be best done by reducing the duty, but I am not inclined to reduce it so low as some gentlemen seem to desire; it may be reduced a few cents, and therefore I move to insert ten instead of twelve. The question was taken for striking out the twelve cents, as it stood in the bill, on all spirits of Jamaica proof, imported from the dominions of nations in alliance with the United States, in order to leave it blank, to be filled up hereafter. The House divided on the question; 19 in favor of the motion, and 26 against it. So it passed in the negative. Adjourned. MONDAY, May 11. _On Titles._ The House took into consideration the message from the Senate, communicated on Saturday last, respecting the disagreement of the Senate to the report of a joint committee, on the subject of annexing titles to the offices of President and Vice President. Mr. PARKER moved a resolution to the following effect: _Resolved_, That this House having, on Tuesday last, adopted the report of their committee appointed to confer with a committee of the Senate, stating, "That it is not proper to annex any style or title to the respective styles or titles of office expressed in the constitution;" and having, in their address to the President of the United States on Friday last, proceeded to act pursuant thereto, deem it improper to accede to the proposition made by the Senate, as communicated by their order of the 9th instant, for appointing a committee to confer with a committee of this House, in considering and reporting under what title it will be proper for the President of the United States in future to be addressed. Mr. PAGE seconded the motion, observing, that in his opinion, the House had no right to interfere in the business: the constitution expressly prescribed the power of Congress as to bestowing titles. He did not conceive the real honor or dignity of either of those situations to consist in high sounding titles. The House had, on a former occasion, expressed their disapprobation of any title being annexed to their own members, and very justly too. After having so fully and explicitly declared their sentiments against such measures, he thought it behooved them to be explicit with the Senate. Indeed, he felt himself a good deal hurt, that gentlemen on this floor, after having refused their permission to the Clerk to enter any more than their plain names on the journal, should be standing up and addressing one another by the title of "the honorable gentlemen." He wished the practice could be got over, because it added neither to the honor nor dignity of the House. Mr. LEE approved of the appointment of a committee to confer with a committee of the Senate, as to the mode due to the occasion; but he was against adding any title. Mr. TUCKER.--When this business was first brought before the House, I objected to the appointment of a committee to confer with a committee of the Senate, because I thought it a subject which this House had no right to take into consideration. I then stood single and unsupported in my opinion, but have had the pleasure to find since, that some gentlemen on this floor agree that I was right. If I was then right, I shall, from stronger reasoning, be right now in opposing the appointment of another committee on the same subject. The joint committee reported that no titles ought to be given; we agreed to the report, and I was in hopes we should have heard no more of the matter. The Senate rejected the report, and have now sent us a resolution, expressive of a determination to give a title, to which they desire our concurrence. I am still of the opinion that we were wrong in appointing the first committee, and think that we shall be guilty of greater impropriety if we now appoint another. What, sir, is the intention of this business? Will it not alarm our fellow-citizens? Will it not give them just cause of alarm? Will they not say, that they have been deceived by the convention that framed the constitution? That it has been contrived with a view to lead them on by degrees to that kind of government which they have thrown off with abhorrence? Shall we not justify the fears of those who were opposed to the constitution, because they considered it as insidious and hostile to the liberties of the people? One of its warmest advocates, one of the framers of it, (Mr. Wilson, of Pennsylvania,) has recommended it by calling it a pure democracy. Does this look like a democracy, when one of the first acts of the two branches of the Legislature is to confer titles? Surely not. To give dignity to our government, we must give a lofty title to our chief magistrate. Does the dignity of a nation consist in the distance between the first magistrate and his citizens? Does it consist in the exaltation of one man, and the humiliation of the rest? If so, the most despotic government is the most dignified; and to make our dignity complete, we must give a high title, an embroidered robe, a princely equipage, and, finally, a crown and hereditary succession. Let us, sir, establish tranquillity and good order at home, and wealth, strength, and national dignity will be the infallible result. The aggregate of dignity will be the same whether it be divided among all, or centred in one. And whom, sir, do we mean to gratify? Is it our present President? Certainly, if we expect to please him, we shall be greatly disappointed. He has a real dignity of character, and is above such little vanities. We shall give him infinite pain; we shall do him an essential injury. We shall place him in a most delicate and disagreeable situation; we shall reduce him to the necessity of evincing to the world his disapprobation of our measures, or of risking some diminution of that high reputation for disinterested patriotism which he has so justly acquired. It is not for his gratification; for whose, then, are we to do this? Where is the man among us who has the presumption and vanity to expect it? Who is it that shall say--for my aggrandizement three millions of people have entered into a calamitous war; they have persevered in it for eight long years; they have sacrificed their property, they have spilt their blood, they have rendered thousands of families wretched by the loss of their only protectors and means of support? This spirit of imitation, sir, this spirit of mimicry and apery will be the ruin of our country. Instead of giving us dignity in the eye of foreigners, it will expose us to be laughed at as apes. They gave us credit for our exertions in effecting the revolution, but they will say that we want independence of spirit to render it a blessing to us. Mr. TRUMBULL moved for the appointment of a Committee of Conference, to consider on the difference which appeared in the votes of the two Houses upon the report of the joint committee. Mr. BURKE hoped the House would express their decided disapprobation of bestowing titles in any shape whatever; it would be an indignity in the House to countenance any measures of this nature. Perhaps some gentlemen might think the subject was a matter of indifference; but it did not appear to him in that light. The introduction of two words which he could mention into the titles of these officers, would alter the constitution itself; but he would forbear to say any thing further, as he had a well-grounded expectation that the House would take no further notice of the business. Mr. GOODHUE thought the conference unnecessary, because the House had not only adopted the report of their committee, but proceeded to act in pursuance thereof. Mr. SENEY joined the last gentleman in sentiment, and thought it an unnecessary waste of time to give the subject any longer discussion. Mr. MADISON.--I may be well disposed to concur in opinion with gentlemen that we ought not to recede from our former vote on this subject, yet at the same time I may wish to proceed with due respect to the Senate, and give dignity and weight to our own opinion, so far as it contradicts theirs, by the deliberate and decent manner in which we decide. For my part, Mr. Speaker, I do not conceive titles to be so pregnant with danger as some gentlemen apprehend. I believe a President of the United States, clothed with all the powers given in the constitution, would not be a dangerous person to the liberties of America, if you were to load him with all the titles of Europe or Asia. We have seen superb and august titles given, without conferring power and influence, or without even obtaining respect. One of the most impotent sovereigns in Europe has assumed a title as high as human invention can devise; for example, what words can imply a greater magnitude of power and strength than that of High Mightiness? This title seems to border almost upon impiety; it is assuming the pre-eminence and omnipotence of the Deity; yet this title, and many others cast in the same mould, have obtained a long time in Europe, but have they conferred power? Does experience sanction such an opinion? Look at the republic I have alluded to, and say if their present state warrants the idea. I am not afraid of titles, because I fear the danger of any power they could confer, but I am against them because they are not very reconcilable with the nature of our Government or the genius of the people. Even if they were proper in themselves, they are not so at this juncture of time. But my strongest objection is founded in principle; instead of increasing, they diminish the true dignity and importance of a republic, and would in particular, on this occasion, diminish the true dignity of the first magistrate himself. If we give titles, we must either borrow or invent them. If we have recourse to the fertile fields of luxuriant fancy, and deck out an airy being of our own creation, it is a great chance but its fantastic properties would render the empty phantom ridiculous and absurd. If we borrow, the servile imitation will be odious, not to say ridiculous also; we must copy from the pompous sovereigns of the East, or follow the inferior potentates of Europe; in either case, the splendid tinsel or gorgeous robe would disgrace the manly shoulders of our chief. The more truly honorable shall we be, by showing a total neglect and disregard to things of this nature; the more simple, the more republican we are in our manners, the more rational dignity we shall acquire; therefore, I am better pleased with the report adopted by the House, than I should have been with any other whatsoever. The Senate, no doubt, entertain different sentiments on this subject. I would wish, therefore, to treat their opinion with respect and attention. I would desire to justify the reasonable and republican decision of this House to the other branch of Congress in order to prevent a misunderstanding. But that the motion of my worthy colleague (Mr. PARKER) has possession of the House, I would move a more temperate proposition, and I think it deserves some pains to bring about that good will and urbanity, which for the despatch of public business ought to be kept up between the two Houses. I do not think it would be a sacrifice of dignity to appoint a Committee of Conference, but imagine it would tend to cement that harmony which has hitherto been preserved between the Senate and this House; therefore, while I concur with the gentlemen who express, in such decided terms, their disapprobation of bestowing titles, I concur also with those who are for the appointment of a Committee of Conference, not apprehending they will depart from the principles adopted and acted upon by the House. Mr. WHITE did not approve of a Committee of Conference, because the House had already determined the question by unanimously adopting the report of the joint committee. He did not think that it was worth while having the subject longer contested; he was satisfied both the spirit of the constitution and the spirit of the people disapproved of titles. Mr. BLAND would be careful of giving umbrage to the Senate, because he wished that the unanimity and moderation which subsisted between the two Houses might continue. He considered the present as a very proper opportunity for the appointment of a Committee of Conference. The two Houses had disagreed on the report of their committees; it was proper, therefore, that they should mutually assign their reasons, in order to bring about an agreement to the same resolution. He hoped, therefore, that such a committee would be appointed, though he had no expectation that the House would give up an opinion they so justly and decidedly entertained respecting titles. Mr. PARKER wanted to know what was the object of gentlemen in the appointment of a Committee of Conference? The committee could only say that the House had refused their consent to annexing any titles whatever to the President and Vice President; for certainly the committee would not descend into the merits of a question already established by the House. For his part, he could not see what purpose was to be answered by the appointment of such a committee. He wished to have done with the subject, because while it remained a question in the House, the people's minds would be much agitated; it was impossible that a true republican spirit could remain unconcerned when a principle was under consideration, so repugnant to the principles of equal liberty. Mr. SHERMAN thought it was pretty plain that the House could not comply with the proposition of the Senate. The appointment of a committee, on the part of the House, to consider and determine what style or title will be proper to annex to the President and Vice President, would imply that the House meant that some style or title should be given. Now this they never could intend, because they have decided that no style or title ought to be given; it will be sufficient to adduce this reason for not complying with the request of the Senate. Mr. JACKSON wondered what title the Senate had in contemplation to add dignity or lustre to the person that filled the presidential chair. For his part, he could conceive none. Would it add to his fame to be called after the petty and insignificant princes of Europe? Would styling him His Serene Highness, His Grace, or Mightiness, add one tittle to the solid properties he possessed? He thought it would not; and therefore conceived the proposition to be trifling with the dignity of the Government. As a difference had taken place between the two Houses, he had no objection to a conference taking place. He hoped it might be productive of good consequences, and that the Senate might be induced to follow the laudable example of the House. Mr. MADISON was of opinion, that the House might appoint a Committee of Conference without being supposed to countenance the measure. The standing rule of the House declared, that, in case of disagreeing votes, a Committee of Conference should be appointed. Now, as the case provided for in the rule had actually happened, he inferred that it was proper to proceed in the manner directed by the rules of the House. The subject was still open to discussion, but there was little probability that the House would rescind their adoption of the report. I presume gentlemen do not intend to compel the Senate into their measures; they should recollect that the Senate stand upon independent ground, and will do nothing but what they are convinced of the propriety of; it would be better, therefore, to treat them with delicacy, and offer some reasons to induce them to come into our measure. He expected this would be the result of a conference, and therefore was in favor of such a motion. Mr. SENEY intended nothing disrespectful to the Senate, but he conceived, after having adopted the report of the committee, it would derogate from their own dignity to rescind a unanimous resolution; and for what other purpose could a conference be appointed by the House? They must certainly suppose that there might be ground for changing their opinion. Nothing of this kind appeared to him, and therefore he was of opinion, it would be a useless consumption to waste any more time about it. Mr. CLYMER thought that there was little occasion to add any title to either the President or Vice President. He was very well convinced, by experience, that titles did not confer power; on the contrary, they frequently made their possessors ridiculous. The most impotent potentates, the most insignificant powers, generally assumed the highest and most lofty titles. That they do not indicate power and prerogative, is very observable in the English history; for when the chief magistrate of that nation bore the simple style of His Grace or Highness, his prerogatives were much more extensive than since he has become His Most Sacred Majesty. Titular distinctions are said to be unpopular in the United States; yet a person would be led to think otherwise, from the vast number of honorable gentlemen we have in America. As soon as a man is selected for the public service, his fellow-citizens, with liberal hand, shower down titles on him--either excellency or honorable. He would venture to affirm, there were more honorable esquires in the United States than in all the world besides. He wished to check a propensity so notoriously evidenced in favor of distinctions, and hoped the example of the House might prevail to extinguish that predilection which appeared in favor of titles. Mr. PAGE.--If I thought the motion made by my colleague in the least degree disrespectful, I should not have seconded it. I would be the last man on this floor to treat that worthy body with disrespect; but I believe it cannot be construed to have such a meaning. If we were to let the resolution lie on the table, it would not be disrespectful. But what is the object of the motion? Simply to inform the Senate that we cannot rescind a resolution adopted in consequence of the report of a joint committee. If the conduct of either House is in the least degree disrespectful, (though I do not conceive it is,) the body who declined adopting the report, after knowing the sense of the other to be in its favor, is the most so. But on what are a committee to confer? Not upon what title shall be bestowed, because we have no right to enter on the subject; and here I must tell gentlemen I differ from them, when they think titles can do no harm. Titles, sir, I say, may do harm, and have done harm. If we contend now for a right to confer titles, I apprehend the time will come when we shall form a reservoir for honor, and make our President the fountain of it. In such case, may not titles do an injury to the Union? They have been the occasion of an eternal faction in the kingdom we were formerly connected with, and may beget like inquietude in America; for I contend, if you give the title, you must follow it with the robe and the diadem, and then the principles of your government are subverted. Mr. LEE moved the previous question, as the best mode of getting rid of the motion before the House: he was supported by a sufficient number. And on the question, Shall the main question be now put? it passed in the negative; and so the motion was lost. On motion, it was _Resolved_, That a committee be appointed, to join with such committee as the Senate may appoint, to confer on the disagreeing votes of the two Houses, upon the report of their joint committee, appointed to consider what titles shall be given to the President and Vice President of the United States, if any other than those given in the constitution. Messrs. MADISON, PAGE, BENSON, TRUMBULL, and SHERMAN were the committee elected. _Impost Bill._ The House then went into a Committee of the Whole on the bill for laying a duty on goods, wares, and merchandises imported into the United States. Mr. PAGE in the chair. The question on laying a duty on molasses being under consideration: Mr. TUCKER.--Notwithstanding I am anxious for a reduction of the duties on all the articles in the bill, yet my vote on molasses will be regulated by what the committee shall determine in other cases, as I do not conceive it to be out of proportion. If a general reduction takes place on the other articles, I shall be disposed to make a reduction on this article; but as mine is but a single vote, gentlemen may not be inclined to favor my proposition for a general reduction in order to gain my assent to a reduction on this particular article. Mr. GOODHUE was of opinion that the duties were too high for collection; but he did not agree with the gentleman from South Carolina (Mr. TUCKER) that the duty on molasses was rated in proportion to the other articles, and therefore the question, whether molasses shall be reduced or not, did not depend on a general reduction, but on its own bottom; if it was rated too high for collection and proportion, the committee would agree to reduce it. Mr. FITZSIMONS expected the gentleman from South Carolina would vote in the manner he had pledged himself; he had promised to vote for reducing the duty on molasses if the committee reduced the duty on other articles; now, as they had decided against a reduction, he hoped the gentleman would be in favor of the duty on molasses, as it stood in the bill, and not vote in the manner he had promised. Mr. TUCKER.--The gentleman last up has certainly misunderstood me. I made no promise. I said my vote would depend upon the reduction of the other articles, but I was indifferent as to rum; I did not consider the State I represented as being either particularly benefited or injured by a duty on rum; and therefore did not urge any arguments in favor of reducing that article, more than I thought it might be proper to preserve the ratio, as fixed by the House, between the several articles. If gentlemen think rum can bear a high duty, and be safely collected, I have no objection to letting it remain. But there are some articles that bear heavily and unequally upon South Carolina; now, I think it my duty to vote in such a manner as to prevent her from bearing an undue proportion of the tax to be collected; I am, consequently, obliged to vote for a high tax on articles used in other States, (if my State is highly taxed,) however unequally it may fall. I shall therefore vote so as to endeavor to oblige other States to bear their true proportion of the aggregate sum. I wish to defer any determination on the article of molasses until we have gone through the other articles, that I may know how to vote on this. If gentlemen think my single vote of no consequence, they may proceed; but I may think the duty too high on molasses, and may be disposed to make it five cents, or less, if a reduction is made in the other articles; but I would not be understood to pledge myself for any particular sum. Mr. AMES thought the gentleman from Pennsylvania (Mr. FITZSIMONS) had misunderstood the gentleman from South Carolina (Mr. TUCKER) respecting his pledging himself to vote in favor of molasses. He believed the gentleman from South Carolina incapable of making any improper accommodation either on this or any other occasion; the subject had never been mentioned to him, nor he believed to any body else, much less could the gentleman's intention be the result of bargain or compromise. For his own part, he would never consent to such a degradation of his rights as a member of the House, as to stipulate for the exercise of his opinion. Mr. TUCKER.--If the gentleman from Pennsylvania (Mr. FITZSIMONS) supposes that I have bargained to vote for or against any measure, he does me wrong; and if he charges me with such actions, I desire he may state his reasons and explain himself. I did not hear perfectly what he said when he was up before, and therefore did not refute any improper construction he might have put on my arguments. Mr. FITZSIMONS had no difficulty in declaring his meaning. He understood when the article of rum was under consideration, that the gentleman held out a promise to vote for the reduction of the duty on molasses, if the committee would agree with him in reducing generally. This promise was not made in a private manner; it was made by the gentleman in his place. He could not recite the particular expression of the gentleman, but he understood from it that the gentleman pledged himself to reduce the duty on molasses, if the gentlemen from the Eastern States would join him in a general reduction. Mr. TUCKER.--I expressed a wish for a general reduction to take place throughout the whole system; but I never made a promise with regard to a reduction of any particular article. Mr. SENEY observed, that the discussion of molasses had been deferred when the subject was last before the House, in order to give time for a full investigation; but he conceived that no such reason now existed, in favor of its lying over, and therefore hoped the House would proceed to decide upon it. Mr. AMES was willing to proceed to the consideration of that subject; he did not wish it deferred to the end of the list, that it might be held over them _in terrorem_. There were several articles in the list, which he did not conceive to be taxed too high for collection, or out of proportion with others, therefore it was likely they would not be reduced. If this was the case, the reduction would not be general, and the gentleman from South Carolina might not think it his duty to favor the reduction of molasses. He wished every article to stand upon its own bottom. If molasses was too high, the committee would lower it; if not, they will continue it at the rate it is, and the business would be done with. If the committee were disposed to proceed, he was ready to take up the subject. Mr. CARROLL saw no reason for postponing the business at this time. When the subject was suspended on a former occasion, several gentlemen from Massachusetts were absent on business, but it was surely unnecessary now to have any delay. After the repeated discussions it had undergone, he was satisfied gentlemen were prepared for a decision, and he hoped the question might be taken, and the committee proceed to get through the business. Gentlemen should consider the daily loss which the revenue sustained by the delay of this bill; he cautioned them against considering overmuch, and letting slip the opportunity they now had to supply the public wants. Mr. WADSWORTH would not go over the old ground, and enumerate all the reasons why a reduction of the duty on this article should take place. He satisfied himself with saying it was out of proportion, and too high ever to be collected with certainty; he wished the committee to lower it to three or four cents, and apply to an excise for the deficiency, not conceiving an excise on distilled spirits to be inconvenient or unpopular. Mr. AMES was sensible that any further discussion of the present subject was unpleasant, nay, it was painful to the committee; but he had such impressions on his mind with regard to its importance, that he must trespass on them again. On all subjects demonstration is desirable, but there is only one science capable of complete demonstration. Many other sciences admit of different degrees of demonstration; but of all the sciences on earth, the science of politics is the least capable of affording satisfactory conclusions, while it is the one that, from its importance, requires the greatest degree of certainty; because when we are to consider those things which relate to the welfare of nations, it is of consequence, and nothing can be more desirable than that we adopt just principles in order to come at proper conclusions. In this science it is dangerous to adopt the visionary projects of speculators instead of principle. We ought to be cautious, therefore, in selecting the information upon which we form our system. He trusted to make it appear in the course of his arguments, that the propriety of the particular measure under discussion depended upon local knowledge, and yet it would be found of national concern. He believed it could be clearly proved to be as much the interest of one part as of another to have the duty reduced. It was laid down as a principle that all duties ought to be equal. He believed, if gentlemen gave themselves time for consideration, they would not contend this duty was equal. He said he had made some calculations, which demonstrated the inequality to a very surprising degree. The tax operated in two ways: first, as a tax on a raw material, which increased the price of stock and narrowed the sale; and second, as a tax on an article of consumption. It required the distillation and the consumption to be equal in every part of the Union to render the duty equal in its operation; but no gentleman contended that the consumption or distillation was equal. The gentleman from Virginia said, on a former occasion, that Massachusetts would not contribute her proportion of the national revenue, because her exports were not equal to the Southern States, and of consequence her imports are less; but if this fact is examined, it will be found that she does export in full proportion with the Southern States. Examine her custom-house books, and you will find it; but Massachusetts is greatly concerned in navigation, and the wages of her seamen ought to be added to the amount of the profits of her industry. Then if we consider her consumption, we shall find it in proportion also. Admitting the people of New England to live more moderate than the opulent citizens of Virginia or Carolina, yet they have not such a number of blacks among them, whose living is wretched; consequently, the average consumption per head will be nearly the same. The fact is, that all taxes of this nature will fall generally in proportion to the ability to pay. Laying a heavy duty on molasses incurs the necessity of allowing a drawback on country rum. By this system, we may lose more revenue than we gain; anyhow, it will render it very uncertain. It is a question of some importance, whether it would not be beneficial to the United States to establish a manufacture which would be very lucrative. But waiving that consideration, he would ask gentlemen, if there was any propriety in taxing molasses in its raw state, with a duty intended to be laid on rum? Certainly this had better be by way of excise. In this mode the revenue would escape fraud by smuggling, which would otherwise be unavoidable. The tax was such a temptation, being thirty per cent. upon its value, that no checks could prevent a clandestine trade being carried on. Without the molasses trade is continued, the fishery cannot be carried on. They are so intimately connected, that the weapon which wounds the one will stab the other. If by such measures as these we ruin one of the most valuable interests of the United States, will not the people have a right to complain that, instead of protecting, you injure and destroy their pursuits? He did not mean to say that the people would form unwarrantable combinations; but their exertions to support the Government will be damped; they will look with chagrin on the disappointment of their hopes; and it will add to their vexation that they have been deceived under the most flattering appearances; for who could conceive that a Government, constructed and adopted in the manner this has been, could ever be administered to the destruction of that welfare which it was formed to support? He recommended experience as the best guide, and said, that it was decidedly against high duties, particularly on molasses; and concluded with appealing to the justice and wisdom of the committee for a determination on this subject. Mr. CARROLL would not take up the time of the committee with saying a word on the main subject, but begged them to consider of how much importance it was to the Union to get this bill into operation. If every article was to be again debated in the manner it had already been, he could see no end to the business. Unless gentlemen could advance some new and weighty arguments, he thought the time misspent in recapitulating those that had been unsuccessfully urged twice or three times before. Mr. MADISON thought the arguments against the duty were inconsistent. He believed the gentlemen in opposition had not replied to an observation he had made, and which was of great force on his mind. The gentlemen all say that a heavy duty will ruin the distilleries and fisheries, and the people concerned in them; yet they profess themselves willing to lay the same duty, but in two forms instead of one. Now he would be glad to know if the distilleries and fisheries would not be precisely in the same situation, let which would take place? On motion, the committee rose, and the House adjourned. TUESDAY, May 12. _Duties on Imports._ The House again resolved itself into a Committee of the Whole, Mr. PAGE in the chair, on the Impost Bill. The article of molasses being still under consideration: Mr. AMES wished to reply to the observation made yesterday by the gentleman from Virginia. Does that gentleman, said he, recollect, if we lay an excise, we prevent the burthen from being imposed upon the poor for their subsistence, as molasses, in the raw state, will be lightly taxed? In the next place, it is more favorable to the importers of that article than the impost; it does not require so large a proportion of their capital to be advanced in payment of duties, nor do they run the risk of bad debts, because it may be so regulated that the retailer shall secure the duty. Another reason is, it will save the expense of a numerous host of custom-house officers, tide-waiters, &c. These considerations proved, that if the excise was no better than an impost, it was no worse; and as the duty would be better collected, and give less reason for smuggling, which, above all things, was dangerous to the revenue, it was sufficient to warrant the committee in giving the excise duty a preference. Mr. GOODHUE would not trouble the House long on the subject; but begged leave to repeat the manner in which the molasses trade was connected with the fisheries, and the fisheries with the navigation; that, if the first is injured, the other two are wounded through its side. About three-fifths of all the fish that are put up for that market, are of an inferior quality, and would not sell elsewhere. The French would not permit us to carry them there, but because we take their molasses in exchange; they will not let their colonies send the molasses to France, lest it interfere with their brandy. Now, any impediment to the exportation of molasses, will prevent the exportation of fish; if we cannot export the fish, for what purpose shall we continue our fisheries? And if they are given up, how are we to form seamen to man our future navy? Mr. MADISON said his mind was incapable of discovering any plan that would answer the purpose the committee have in view, and not produce greater evils than the one under consideration. He thought an excise very objectionable, but as no actual proposition for entering into such a system was before the committee, he forbore to say any thing further about it. He admitted an excise would obviate in part some of the difficulties; but he did not think the answer given to his argument altogether satisfactory; yet there was another argument he urged on a former occasion remaining unanswered--it was, that, at this moment, the fisheries, distilleries, and all their connections, were laboring under heavier duties than what is now proposed; true, the duty is collected in a different mode, but it affects the consumer in the same manner. The gentlemen have said, to be sure, that the duty is evaded; but if half is collected, it amounts to more than six cents per gallon. It is said that a tax on molasses will be unpopular, but not more so than a tax on salt. Can gentlemen state more serious apprehensions in the former than the latter case? yet the committee did not forego a productive fund, because the article was a necessary of life, and in general consumption. If there is the disposition that is represented for people to complain of the oppression of Government, have not the citizens of the Southern States more just ground for complaint than others? The system can only be acceptable to them, because it is essentially necessary to be adopted for the public good. Gentlemen argue, that a tax on molasses is unpopular, and prove it by experience under the British Government. If this is to be adduced as a proof of the popularity of a measure, what are we to say with respect to a tax on tea? Gentlemen remembered, no doubt, how odious this kind of tax was thought to be throughout America; yet the House had, without hesitation, laid a considerable duty upon it. He did not imagine that a duty on either of those articles was in itself objectionable; it was the principle upon which the tax was laid that made them unpopular under the British Government. It is said that this tax is unjust; now, he had not a single idea of justice, that did not contradict the position. If it be considered as it relates to rum, he was certain the consumers of foreign rum paid a larger proportion of revenue into the Treasury than the consumers of country rum; they paid more than equal distributive justice required; if it was considered as it respected molasses, there would appear no injustice. Molasses was consumed in other States; but if it was not, sugar was used in its stead, and subjected to a duty full as high as that on molasses. But dismissing both these considerations, and even admitting the whole weight to fall upon the Northern States, it would not be disproportioned, because, in the long list of enumerated articles subject to a high duty, they imported few or none; indeed, the articles were pretty generally taxed for the benefit of the manufacturing part of the northern community; see loaf sugar, candles, cheese, soap, &c. He hoped gentlemen would not infer from this observation, that he thought the encouragement held out by the bill to manufactures improper; far from it; he was glad to see their growing consequences, and was disposed to give them every aid in his power. From this view of the subject, he was inclined to adhere to the bill, and not make any reduction. Mr. GERRY hoped the committee would not consider the subject as finally decided; he thought it deserving of further investigation, and expected the committee would be satisfied of the propriety of making some reduction. He felt a concern at being obliged to extend the discussion, but his duty impelled him to oppose a measure he conceived injurious to his country. Gentlemen had contended, that a duty of six cents per gallon on molasses was just and equal; for his part, he could not discover, with all the exertions his mind was capable of making, how gentlemen prove this to be the case; it appeared to him partial and oppressive. The principle laid down in the constitution for an equal distribution of taxes was, that they shall be apportioned among the several States, according to their respective number of inhabitants. This principle is made positive as it respects direct taxes; but he thought the equality ought to extend itself to every possible case. The power possessed by the House, with regard to revenue and the power of making all necessary laws, enabled the General Government to exist independent of subordinate associations; but if they were inclined to annihilate the State Governments, yet it would be their interest to attend to the advantages of the community, and administer their power so as not to make it burthensome and oppressive. Now, he wished to know, what principle of justice authorized the committee to lay a duty of six cents on molasses? Unfortunately for Massachusetts, she imports a greater quantity than the whole Union besides. This makes her interest stand alone, and her representatives are left to labor the point, knowing the ill effect it will have upon their constituents. Under these circumstances, it is necessary to pay particular attention to the justice of the measure; gentlemen should consider that, in such cases, there is danger of interest prevailing over equity and policy. Certainly, if the measure is pursued, we shall discover this effect in the end. Gentlemen have considered the arguments brought against this duty as standing upon local ground, advocating the local interest of Massachusetts. He would examine this position. It is the interest of a majority of the people of that State, that as much revenue should be drawn from molasses as possible. I say it is the interest of the State, for their interest is divided between the landed and commercial; the landed interest predominates, and it was always supposed that the commercial bore a greater share of the public burthen than it ought. The conduct of the State of Massachusetts ought to be esteemed by us as the best guide to discover how far our commercial regulations, as they respect that State, are consistent with policy, if she furnishes the best example. Can we find that she ever imposed a duty of six cents per gallon on molasses? Not a single instance can be produced where she raised revenue from this article. If they then never laid a duty upon it, and they were disposed to get every thing in their power from commerce, we must conclude that if it could have been laid they would have done it. It is not the landed citizens, if he might use the term, who consume molasses; it is the inhabitants of the sea-coast; the former had the power, and they were interested to lay such a tax, it might therefore be expected they would have done it, if they had not been convinced it would have destroyed the fisheries and navigation of the State. The gentleman from Virginia (Mr. MADISON) cannot see how an impost on molasses can affect the distilleries and fisheries. After having been repeated over and over again, it would be unnecessary that he should dwell on this point. But every one could see the connection; if we do not import molasses, we cannot carry on our distilleries nor vend our fish; and it will be impossible to import molasses under such heavy duties; at least the future importation will be limited to two-thirds of the present, because the demand will be in proportion to the increase of price, and the merchant will not have capital to import more than two-thirds of his usual quantity. He would not reiterate the arguments respecting the fisheries; it was well known to be the best nursery for seamen, the United States had no other, and it never could be the intention of gentlemen to leave the navigation of the Union to the mercy of foreign powers. It is of necessity, then, that we lay the foundation of our maritime importance as soon as may be, and this can be done only by encouraging our fisheries. It is also well known that we have a number of rivals in this business desirous of excluding us from the fishing banks altogether. This consideration of itself is sufficient to induce a wise legislature to extend every encouragement to so important a concern. In any regulation they make, by which it can be effected, they ought to be sure of the ground on which they go. It appeared to him that six cents would have the most ruinous consequences to the general interest; he therefore hoped gentlemen would agree to reduce it, if not so as to place it among the _ad valorem_ articles, at least down to two cents. However, as the committee are not prepared to say the particular sum proper to be laid, he hoped they would agree to leave it a blank, to be filled up at some future stage of the business. The question was now taken on striking out six cents, and passed in the affirmative: ayes 24, noes 22. Propositions were severally made for filling up the blank with two, three, four, and five cents; five being the highest was first put and agreed to--ayes 25, noes 23. The committee proceeded to consider the subsequent articles; but not having time to go through the whole, they rose, and reported progress, and the House adjourned. WEDNESDAY, May 13. The petition of John Fitch, of Pennsylvania, was presented, stating that he is the original discoverer of the principle of applying steam-power to the purposes of navigation, and has obtained an exclusive right therein for a term of years, in the States of Virginia, Delaware, Pennsylvania, New Jersey, and New York, and praying that his rights may be secured to him by law, so as to preclude subsequent improvers upon his principle from participation therein, until the expiration of his granted right. Referred to a committee, consisting of Messrs. HUNTINGTON, CADWALADER, and CONTEE, to report thereon. _Duties on Imports._ The House again resolved itself into a Committee of the Whole on the Impost Bill, Mr. PAGE in the chair. AFRICAN SLAVES. Mr. PARKER moved to insert a clause in the bill, imposing a duty on the importation of slaves, of ten dollars each person. He was sorry that the constitution prevented Congress from prohibiting the importation altogether; he thought it a defect in that instrument that it allowed of such a practice; it was contrary to the Revolution principles, and ought not to be permitted; but as he could not do all the good he desired, he was willing to do what lay in his power. He hoped such a duty as he moved for would prevent, in some degree, this irrational and inhuman traffic; if so, he should feel happy from the success of his motion. Mr. SMITH, of South Carolina, hoped that such an important and serious proposition as this would not be hastily adopted. It was a very late moment for the introduction of new subjects. He expected the committee had got through the business, and would rise without discussing any thing further. At least, if gentlemen were determined on considering the present motion, he hoped they would delay it for a few days, in order to give time for an examination of the subject. It was certainly a matter big with the most serious consequences to the State he represented; he did not think any one thing that had been discussed was so important to them, and the welfare of the Union, as the question now brought forward; but he was not prepared to enter on any argument, and therefore requested the motion might either be withdrawn or laid on the table. Mr. SHERMAN approved of the object of the motion, but he did not think this bill was proper to embrace the subject. He could not reconcile himself to the insertion of human beings as an article of duty, among goods, wares, and merchandise. He hoped it would be withdrawn for the present, and taken up hereafter as an independent subject. Mr. JACKSON, observing the quarter from which this motion came, said it did not surprise him, though it might have that effect upon others. He recollected that Virginia was an old settled State, and had her complement of slaves; so she was careless of recruiting her numbers by this means; the natural increase of her imported blacks was sufficient for their purpose; but he thought gentlemen ought to let their neighbors get supplied, before they imposed such a burthen upon the importation. He knew this business was viewed in an odious light to the eastward, because the people were capable of doing their own work, and had no occasion for slaves; but gentlemen will have some feeling for others; they will not try to throw all the weight upon those who have assisted in lightening their burthens; they do not wish to charge us for every comfort and enjoyment of life, and at the same time take away the means of procuring them; they do not wish to break us down at once. He was convinced, from the inaptitude of the motion, and the want of time to consider it, that the candor of the gentleman would induce him to withdraw it for the present; and if ever it came forward again, he hoped it would comprehend the white slaves as well as black, who were imported from all the jails of Europe; wretches, convicted of the most flagrant crimes, were brought in and sold without any duty whatever. He thought that they ought to be taxed equally with the Africans, and had no doubt but the constitutionality and propriety of such a measure was equally apparent with the one proposed. Mr. TUCKER thought it unfair to bring in such an important subject at a time when debate was almost precluded. The committee had gone through the impost bill, and the whole Union was impatiently expecting the result of their deliberations; the public must be disappointed, and much revenue lost, or this question cannot undergo that full discussion which it deserves. We have no right, said he, to consider whether the importation of slaves is proper or not; the constitution gives us no power on that point; it is left to the States to judge of that matter as they see fit. But if it is a business the gentleman is determined to discourage, he ought to have brought his motion forward sooner, and even then not have introduced it without previous notice. He hoped the committee would reject the motion, if it was not withdrawn. He was not speaking so much for the State he represented as for Georgia; because the State of South Carolina had a prohibitory law, which could be renewed when its limitation expired. Mr. PARKER had ventured to introduce the subject after full deliberation, and did not like to withdraw it. Although the gentleman from Connecticut (Mr. SHERMAN) had said, that they ought not to be enumerated with goods, wares, and merchandise, he believed they were looked upon by the African traders in this light. He knew it was degrading the human species to annex that character to them; but he would rather do this than continue the actual evil of importing slaves a moment longer. He hoped Congress would do all that lay in their power to restore to human nature its inherent privileges, and, if possible, wipe off the stigma under which America labored. The inconsistency in our principles, with which we are justly charged, should be done away, that we may show, by our actions, the pure beneficence of the doctrine we hold out to the world in our Declaration of Independence. Mr. SHERMAN thought the principles of the motion, and the principles of the bill, were inconsistent; the principle of the bill was to raise revenue, the principle of the motion to correct a moral evil. Now, considering it as an object of revenue, it would be unjust, because two or three States would bear the whole burthen, while he believed they bore their full proportion of all the rest. He was against receiving the motion into this bill, though he had no objection to taking it up by itself, on the principles of humanity and policy; and therefore would vote against it if it was not withdrawn. Mr. AMES joined the gentleman last up; no one could suppose him favorable to slavery; he detested it from his soul; but he had some doubts whether imposing a duty on the importation would not have the appearance of countenancing the practice; it was certainly a subject of some delicacy, and no one appeared to be prepared for the discussion. He therefore hoped the motion would be withdrawn. Mr. LIVERMORE was not against the principle of the motion; but in the present case he conceived it improper. If negroes were goods, wares, or merchandise, they came within the title of the bill; if they were not, the bill would be inconsistent. But if they are goods, wares, or merchandise, the five per cent. _ad valorem_ will embrace the importation, and the duty of five per cent. is nearly equal to ten dollars per head; so there is no occasion to add it even on the score of revenue. Mr. JACKSON said, it was the fashion of the day to favor the liberty of slaves. He would not go into a discussion of the subject; but he believed it was capable of demonstration that they were better off in their present situation than they would be if they were manumitted. What are they to do if they are discharged? Work for a living? Experience has shown us they will not. Examine what has become of those in Maryland; many of them have been set free in that State. Did they turn themselves to industry and useful pursuits? No, they turn out common pickpockets, petty larceny villains. And is this mercy, forsooth, to turn them into a way in which they must lose their lives; for when they are thrown upon the world, void of property and connections, they cannot get their living but by pilfering. What is to be done for compensation? Will Virginia set all her negroes free? Will they give up the money they cost them, and to whom? When this practice comes to be tried there, the sound of liberty will lose those charms which make it grateful to the ravished ear. But our slaves are not in a worse situation than they were on the coast of Africa. It is not uncommon there for the parents to sell their children in peace; and in war, the whole are taken and made slaves together. In these cases, it is only a change of one slavery for another; and are they not better here, where they have a master, bound by the ties of interest and law, to provide for their support and comfort in old age or infirmity, in which, if they were free, they would sink under the pressure of woe for want of assistance? He would say nothing of the partiality of such a tax; it was admitted by the avowed friends of the measure; Georgia, in particular, would be oppressed. On this account, it would be the most odious tax Congress could impose. Mr. SCHUREMAN hoped the gentleman would withdraw his motion, because the present was not the time or place for introducing the business. He thought it had better be brought forward in the House as a distinct proposition. If the gentleman persisted in having the question determined, he would move the previous question, if he was supported. Mr. MADISON.--I cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion. If it is taken up in a separate view, we shall do the same thing at a greater expense of time. But gentlemen say that it is improper to connect the two objects, because they do not come within the title of the bill; but this objection may be obviated by accommodating the title to the contents. There may be some inconsistency in combining the ideas which gentlemen have expressed, that is, considering the human race as a species of property; but the evil does not arise from adopting the clause now proposed; it is from the importation to which it relates. Our object in enumerating persons on paper with merchandise, is to prevent the practice of actually treating them as such, by having them in future forming part of the cargoes of goods, wares, and merchandise to be imported into the United States. The motion is calculated to avoid the very evil intimated by the gentleman. It has been said that this tax will be partial and oppressive; but if a fair view is taken of this subject, I think we may form a different conclusion. But if it be partial or oppressive, are there not many instances in which we have laid taxes of this nature? Yet are they not thought to be justified by national policy? If any article is warranted on this account, how much more are we authorized to proceed on this occasion? The dictates of humanity, the principles of the people, the national safety and happiness, and prudent policy require it of us. The constitution has particularly called our attention to it; and of all the articles contained in the bill before us, this is one of the last I should be willing to make a concession upon, so far as I am at liberty to go, according to the terms of the constitution or principles of justice. I would not have it understood that my zeal would carry me to disobey the inviolable commands of either. I understood it had been intimated, that the motion was inconsistent or unconstitutional. I believe, sir, my worthy colleague has formed the words with a particular reference to the constitution; any how, so far as the duty is expressed, it perfectly accords with that instrument. If there are any inconsistencies in it, they may be rectified. I believe the intention is well understood, but I am far from supposing the diction improper. If the description of the persons does not accord with the ideas of the gentleman from Georgia, (Mr. JACKSON,) and his idea is a proper one for the committee to adopt, I see no difficulty in changing the phraseology. I conceive the constitution, in this particular, was formed in order that the Government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of America with respect to the African trade. We have liberty to impose a tax or duty upon the importation of such persons, as any of the States now existing shall think proper to admit; and this liberty was granted, I presume, upon two considerations. The first was, that until the time arrived when they might abolish the importation of slaves, they might have an opportunity of evidencing their sentiments on the policy and humanity of such a trade. The other was, that they might be taxed in due proportion with other articles imported; for if the possessor will consider them as property, of course they are of value, and ought to be paid for. If gentlemen are apprehensive of oppression from the weight of the tax, let them make an estimate of its proportion, and they will find that it very little exceeds five per cent. _ad valorem_; so that they will gain very little by having them thrown into that mass of articles; whilst, by selecting them in the manner proposed, we shall fulfil the prevailing expectations of our fellow-citizens, and perform our duty in executing the purposes of the constitution. It is to be hoped, that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves. I do not wish to say any thing harsh to the hearing of gentlemen who entertain different sentiments from me, or different sentiments from those I represent; but if there is any one point in which it is clearly the policy of this nation, so far as we constitutionally can, to vary the practice obtaining under some of the State Governments, it is this. But it is certain a majority of the States are opposed to this practice; therefore, upon principle, we ought to discountenance it as far as is in our power. If I were not afraid of being told that the Representatives of the several States are the best able to judge of what is proper and conducive to their particular prosperity, I should venture to say that it is as much the interest of Georgia and South Carolina as of any in the Union. Every addition they receive to their number of slaves, tends to weaken and render them less capable of self-defence. In case of hostilities with foreign nations, they will be the means of inviting attack, instead of repelling invasion. It is a necessary duty of the General Government to protect every part of the empire against danger, as well internal as external. Every thing, therefore, which tends to increase this danger, though it may be a local affair, yet, if it involves national expense or safety, becomes of concern to every part of the Union, and is a proper subject for the consideration of those charged with the general administration of the Government. I hope, in making these observations, I shall not be understood to mean that a proper attention ought not to be paid to the local opinions and circumstances of any part of the United States, or that the particular representatives are not best able to judge of the sense of their immediate constituents. If we examine the proposed measure by the agreement there is between it and the existing State laws, it will show us that it is patronized by a very respectable part of the Union. I am informed that South Carolina has prohibited the importation of slaves for several years yet to come. We have the satisfaction, then, of reflecting that we do nothing more than their own laws do at this moment. This is not the case with one State. I am sorry that her situation is such as to seem to require a population of this nature; but it is impossible, in the nature of things, to consult the national good, without doing what we do not wish to do to some particular part. Perhaps gentlemen contend against the introduction of the clause on too slight grounds. If it does not comport with the title of the bill, alter the latter. If it does not conform to the precise terms of the constitution, amend it. But if it will tend to delay the whole bill, that, perhaps, will be the best reason for making it the object of a separate one. If this be the sense of the committee, I shall submit. Mr. GERRY thought all duties ought to be laid as equal as possible. He had endeavored to enforce this principle yesterday, but without the success he wished for; he was bound by the principle of justice, therefore, to vote for the proposition. But if the committee were desirous of considering the subject fully by itself, he had no objection; but he thought when gentlemen laid down a principle, they ought to support it generally. Mr. BURKE said, gentlemen were contending for nothing; that the value of a slave averaged about eighty pounds, and the duty on that sum at five per cent. would be ten dollars. As Congress could go no further than that sum, he conceived it made no difference whether they were enumerated or left in the common mass. Mr. MADISON.--If we contend for nothing, the gentlemen who are opposed to us do not contend for a great deal. But the question is, whether the five per cent. _ad valorem_, on all articles imported, will have any operation at all upon the introduction of slaves, unless we make a particular enumeration on this account. The collector may mistake; for he would not presume to apply the term goods, wares, and merchandise to any person whatsoever. But if that general definition of goods, wares, and merchandise, is supposed to include African slaves, why may we not particularly enumerate them, and lay the duty pointed out by the constitution, which, as gentlemen tell us, is no more than five per cent. upon their value. This will not increase the burthen upon any; but it will be that manifestation of our sense expected by our constituents, and demanded by justice and humanity. Mr. BLAND had no doubt of the propriety or good policy of this measure. He had made up his mind upon it; he wished slaves had never been introduced into America. But if it was impossible at this time to cure the evil, he was very willing to join in any measures that would prevent its extending further. He had some doubts whether the prohibitory laws of the States were not in part repealed. Those who had endeavored to discountenance this trade by laying a duty on the importation, were prevented by the constitution from continuing such regulation, which declares that no State shall lay any impost or duties on imports. If this were the case, and he suspected pretty strongly that it was, the necessity of adopting the proposition of his colleague was more apparent. Mr. SHERMAN said the constitution does not consider these persons as species of property; it speaks of them as persons, and says, that a tax or duty may be imposed on the importation of them into any State which shall permit the same, but they have no power to prohibit such importation for twenty years. But Congress have power to declare upon what terms persons coming into the United States shall be entitled to citizenship; the rule of naturalization must, however, be uniform. He was convinced there were others who ought to be regulated in this particular, the importation of whom was of an evil tendency; he meant convicts particularly. He thought that some regulation respecting them was also proper; but it being a different subject, it ought to be taken up in a different manner. Mr. MADISON was led to believe, from the observation that had fallen from the gentlemen, that it would be best to make this the subject of a distinct bill: he, therefore, wished his colleague would withdraw his motion, and move in the House for leave to bring in a bill on the same principles. Mr. PARKER consented to withdraw his motion, under a conviction that the House was fully satisfied of its propriety. He knew very well that these persons were neither goods nor wares, but they were treated as articles of merchandise. Although he wished to get rid of this part of his property, yet he should not consent to deprive other people of theirs by any act of his, without their consent. The committee rose, reported progress, and the House adjourned. FRIDAY, May 15. Mr. WHITE, one of the Representatives from Virginia, presented to the House a resolve of the Legislature of that State, of the 27th of December, 1788, offering to the acceptance of the Federal Government, ten miles square of territory, or any lesser quantity, in any part of that State, which Congress may choose, to be occupied and possessed by the United States, as the seat of the Federal Government; which was read, and ordered to lie on the table. An engrossed bill for laying a duty on goods, wares, and merchandises, imported into the United States, was read a third time, and, on a motion made, ordered to be recommitted to a Committee of the whole House immediately. The House, accordingly, resolved itself into the said committee; and, after some time, the committee rose, and reported the bill with amendments, which were agreed to by the House. Mr. MADISON made a motion further to amend the said bill, by adding to the end thereof a clause for limiting the time of its continuance. Mr. AMES expressed a doubt of the propriety of the motion. He thought the bill ought to be commensurate with the wants of Government. Mr. FITZSIMONS.--For want of a proper knowledge of the true situation of our affairs, we are unable to determine how far the present provision is equal to the necessities of the Union, and this circumstance will tend to add considerably to our embarrassment in limiting the duration. If we make the time too short to supply the public wants, we shall not hold out to the public creditors a sufficient security for the punctual payment of their debts. If we should want to raise money by a loan, we could only expect it according to the duration of the fund: this makes the present motion a subject of serious consideration. Not that I object to what the gentleman has in contemplation, but I wish such language to be used, that shall designate the continuation of the law to be till the wants are supplied and thereafter cease. I am not of opinion that it should be for half a century, because I hope our national debt will be extinguished in much less time; but really I must confess, at this moment, I feel considerable embarrassment in determining in my mind the period for which it should exist, whether an enumerated term of years, or a general declaration during the continuance of the public wants. Mr. LEE thought the operation of the law could not be well understood; that it was a system of experiment, and ought to be temporary, in order that a future Congress might make such amendments as time should discover to be necessary. How perfect soever the theory might appear, practice might prove it otherwise; he therefore wished its operation limited for three or five years. He thought it would be wise in the House to adopt the motion, in order to prevent any injustice which a permanent and imperfect regulation might have on posterity. He expected this would beget confidence in the Government, which was to him a very desirable object. Mr. WHITE.--The constitution having authorized the House of Representatives alone to originate money bills, places an important trust in our hands, which, as their protectors, we ought not to part with. I do not mean to imply that the Senate are less to be trusted than this House; but the constitution, no doubt for wise purposes, has given the immediate Representatives of the People a control over the whole Government in this particular, which for their interest they ought not to let out of their hands. Besides, the constitution says further, that no appropriation shall be for a longer term than two years, which of consequence limits the duration of the revenue law to that period; when, if it is found conducive to the public welfare, it may be continued by the legislators appointed by the people, and who alone are authorized to declare upon this question in the first instance. Mr. LIVERMORE hoped but little time would be taken up in the discussion of this subject; the people were anxiously waiting the result of their deliberations; beside the impost was daily slipping away. He had no doubt of the propriety of the motion, because from the acknowledged imperfections of the bill, it would never do for a permanent system. If the people, who consider themselves subjected to very high and very unequal duties, find no termination of the grievance, they will immediately adopt measures in their defence, to thwart the views of Government; but if they understand the law as temporary, and only passed in order to gain experience for forming a better system, they will be induced to give it fair play, and bear the burthen without complaint, trusting to the wisdom and justice of Congress for such alterations as practice may show to be necessary. Besides, the objects for which the revenue is now wanting, will decrease annually; this will be an additional reason for limiting its duration. He was not for a very short term; he thought five, seven, or ten years, would be more eligible than two or three, but he was decidedly against making it perpetual. Mr. SINNICKSON had understood, that one of the objects of the bill was the re-establishment of public credit; but it never could be imagined that a law, limited to three or four years, could do this in any great degree; nor could any advantage arise from loans negotiated and terminated within such a short period. Under these impressions, he conceived the motion struck at the credit of the new Government, which the people had just established. Mr. MADISON.--When he offered this amendment to the bill, he thought its propriety was so obvious and striking, that it would meet no opposition. To pass a bill, not limited in duration, which was to draw revenue from the pockets of the people, appeared to be dangerous in the administration of any Government; he hoped, therefore, the House would not be less cautious in this particular than other nations are, who profess to act upon sound principles. He imagined it might be considered by their constituents as incompatible with the spirit of the constitution, and dangerous to republican principles, to pass such a law unlimited in its duration. Besides the restoration of public credit, he thought the act had in view the encouragement of a particular description of people, which might lead them into enterprises of a peculiar nature, for the protection of which the public faith seemed to be pledged. But would gentlemen infer from hence, that no alteration ought to take place if the manufactures were well established? The subject appeared to him in a twofold point of view; first, to provide for the exigencies of Government, and second, for the establishment of public credit; but he thought both these objects could be obtained without making the bill perpetual. If the Government showed a proper attention to the punctual performance of its engagements, it would obtain the latter; the other would be secured by making provision as the occasion demanded. If the bill was to be made perpetual, it would be continued after the purpose for which it was adopted had ceased; the error would in this case be irremediable; whereas, if its limitation was determined, it would always be in the power of the Government to make it commensurate with what the public debts and contingencies required. The constitution, as had already been observed, places the power in the House of originating money bills. The principal reason why the constitution had made this distinction was, because they were chosen by the people, and supposed to be best acquainted with their interests and ability. In order to make them more particularly acquainted with these objects, the democratic branch of the Legislature consisted of a greater number, and were chosen for a shorter period, so that they might revert more frequently to the mass of the people. Now, if a revenue law was made perpetual, however unequal its operation might be, it would be out of the power of this House to effect an alteration; for if the President chose to object to the measure, it would require two-thirds of both Houses to carry it. Even if the House of Representatives were unanimous in their opinion that the law ought to be repealed, they would not be able to carry it, unless a great majority appeared in the Senate also. Mr. BOUDINOT said, the time mentioned by the former Congress, and to which they requested the concurrence of the several States, was, that the impost duties might be continued for twenty-five years. This request was made on full consideration, and they did not think it was more than sufficient to discharge the principal and interest of the national debt. He concluded, therefore, that it was better to let the law remain without limitation; because when they found the purposes for which it was intended were accomplished, it would be in the power of Congress to repeal the law. Mr. LAWRENCE thought the present was a subject of great importance, and he lamented it was not brought forward at an earlier period, because he feared the time would not allow that full discussion or deliberation which ought to take place. He wished also that the House was acquainted with the necessities of the United States, that so they might make provision accordingly; but these two points were mere matter of speculation as to their precise amount; yet he believed it was agreed on all hands, that the ways and means provided in this bill for the support of Government, the payment of interest and instalments of the foreign and domestic debt, were, so far as agreed to, inadequate to the object. If this be the case, the public debt must accumulate; and as we do not know when the time may come for its extinguishment, the provision cannot be limited; for every gentleman will agree, that if the demand for revenue be increased, the fund ought to be commensurate to the object. Is there any time when the civil list will cease its demand? If there is not, there will be a perpetual call for revenue. He thought it absolutely impossible to provide for the payment of the debts, if the bill was limited to two, three, or four years; such a precarious provision would never tend to the re-establishment of public credit. If the bill was not limited, it would always be in the power of the Legislature to lower the duties, or make such other alteration as might, upon experience, be thought beneficial to the community; whereas if the bill were limited, it would be thought improper to make any amendments during the term for which it is enacted, although those amendments appeared indispensably necessary. But why is this degree of caution necessary? Will not the administration of public affairs be conducted in future by representatives as good as ourselves? Will they have less wisdom or virtue, to discover and pursue the good of their fellow-citizens than we have? Mr. BLAND.--Our public credit consists of two branches: first, as it respects the evidences of our debt, in the hands of those from whom we have had money or services; and secondly, as it respects our ability to borrow in future. Now, the first branch of public credit depends upon the punctuality with which the interest is paid; but this in foreign nations, does not depend upon the limitation of the act. Do gentlemen suppose our laws, like those of the Medes and Persians, unchangeable? Can any person, who has read our constitution, believe that it is in our power to pass a law without limitation? No, it is impossible. Every person knows that a future Congress may repeal this and every other law we pass, whenever they think proper. The constitution had particularly intrusted the House of Representatives with the power of raising money; great care was necessary to preserve this privilege inviolate; it was one of the greatest securities the people had for their liberties under this Government. Moreover, the importance of the House itself depended upon holding the purse-strings; if they once part with this power, they would become insignificant, and the other branch of the Legislature might become altogether independent of them. For these reasons, he was in favor of the motion of his honorable colleague, and hoped it would obtain. Mr. GERRY.--There seems to be a great variety of opinions entertained by gentlemen on this question. But he thought they would all agree on these two points: first, that there were very great demands upon the federal treasury; and, secondly, that they had no kind of documents to show what they were, or what the revenue bill would produce. Under these circumstances, gentlemen must agree, that there is danger of passing a law that would operate oppressively, and without reason. There was also danger of erring in the mode of collecting, for want of experience to guide them. From these considerations, there was no doubt but the act would require the reconsideration of the Legislature in a short time; there may be applications from the people of all quarters to repeal a part of it. But what are their immediate representatives to do, in case the bill be made perpetual? They may be convinced that a repeal would be just and necessary; but it may not be in their power to remedy the grievances of their constituents, however desirous they may be of doing so; for, although this House may originate and carry a bill unanimously through for the repeal, yet it will be in the power of the President, and the minority of the other branch of Congress, to prevent a repeal. Mr. HUNTINGDON thought it easy to see the danger of making this bill perpetual: besides parting with the power which the constitution gave to the House of Representatives, in authorizing them solely to originate money bills, there would be another inconvenience, which was, extending the revenue beyond what the nature of the public debt required. The foreign debt was payable by instalments; it was saying nothing to allege that the debt would accumulate, because the United States must make provision for the annual extinguishment of a part. If the revenue, arising from the impost, be insufficient for this purpose, recourse must be had to some other fund, which will enable us to perform the engagements of the late Congress. It is true the debt is large, and will take time to pay it off, but he had no doubt but it would be done according to contract, and with honor to the Union. How, then, can gentlemen suppose the revenue ought to be perpetual, in order to be commensurate with the object? If they contemplated the contraction of more debts in future, the supposition might be true; but he saw no reason why gentlemen should extend their views so far. He thought if a future war, or some other untoward circumstance, should increase the national debt, it ought to be provided for by the Government who were acquainted with the necessity. He thought the House ought to consider seriously before they parted with their powers; it was easy for them to pass a bill to give power, but it was difficult to recall it. He had seen many instances of this kind; one in particular in the State from which he came, where the Legislature had given the appointment of sheriffs, and some other little matters, out of their hands, and had been a long time endeavoring to get it back; but they had not been able to obtain it. He had no suspicions of any character in the Senate, but the constitution had made that body in some degree perpetual, to obtain a permanency in the laws; if, therefore, this revenue bill had once their approbation, they might be inclined to continue it, even against the sentiments of the people and of the House. Though he was not against trusting the gentlemen who now composed the Senate, he was against trusting their successors. Mr. SMITH, of South Carolina, was also in favor of the clause; he conceived the only reason of weight urged against it, related to the restoration of public credit; but he thought every person possessed of the stock or debt of the United States would have the same feelings and reasoning as the House; they would know that their demands depended upon a higher source than Congress, and might be sure that we would do our duty in making particular provision. If Congress neglected this, one part of the creditors would compel them. If it was found that the United States were not disposed to pay their debts, foreigners would find the means to make them. Taking it therefore for granted, that Congress would always provide for these objects, he would proceed to consider what effect might arise from a permanent or temporary provision. If the latter were made, the creditors would honor us for our exertions, and confide in our continuing to provide for them in the manner we should find upon experience most convenient to the community. If the system was declared to be a perpetual provision for the payment of their interest, it would give no hope, in the first place, for the redemption of the capital; and in the second, if Congress were to alter it, and which, in all probability they shortly must, the security would be impaired, and an essential injury done to the public credit, which we are so desirous to revive. Mr. AMES considered this as a very important question; and in order that his own mind might be fully enlightened, he had listened with the most unwearied attention to the arguments urged on both sides; but he was far from being satisfied that the motion was necessary or proper for the House to adopt. Gentlemen tell us they are willing to make the revenue commensurate with the debt. If they do this, all the inconveniences resulting from the imperfection of the system will be entailed upon us for a number of years. Other gentlemen mention a year or two for its limitation. Can the House listen seriously to such a proposition? If we were to tell our creditors that we are making provision for them for one year, would it tend to inspire them with confidence in our wisdom or justice? Would our foreign creditors believe we were scrupulously fulfilling our engagements with them? No: nothing less than a fixed, permanent system, can beget confidence or give security. An illusory system of one or two years' duration would engender distrust; its very visage would make the public suspect deception. If we do not mean to deceive, why not make the provision commensurate to the occasion? His idea of a temporary act was _pro hac vice_, by way of experiment: but he thought the House could not make the experiment with this bill, because the public credit would not admit of it. If this act be made for one year, will it not be a considerable expense to the public by going over all the ground again, which had taken the House such a length of time to discuss? What has been the conduct of Great Britain, in relation to her funds? What has carried the credit of that kingdom to a superior eminence, but the attention she has paid to public credit? He considered these advantages as having made that nation rich and powerful. He believed a like conduct on our part would produce the same consequences, because our Government is of such a nature as to give the public creditors the greatest security they could wish. If the revenue is appropriated, and the law for collecting it is without any limitation, the funds cannot be taken away without a positive act of injustice, to which both Houses of the Legislature must assent by a majority of two-thirds, or three independent parties must unite. It was therefore three to one in favor of the public creditor, that the funds appropriated to his use would not be annihilated. Under these circumstances, Government might more safely be trusted. This, he observed, was not the case under despotic princes; their will alone could tear away the security of the subject. Under a pure democracy, the case was almost as bad; no confidence could be placed, because the caprice and whim of one body could dictate a change. Mr. PAGE expressed his surprise to find gentlemen opposed to the limitation of the bill, who had complained so much of its imperfections. He thought a measure of the kind now proposed absolutely necessary to reconcile these gentlemen to particular parts of the bill. For his own part, he had objections to some articles, and for that reason, if there was no other, he would be in favor of the limitation. It had been frequently asserted that half the revenue would be lost by smuggling. Can this, then, he would ask, be a bill proper to perpetuate, or fit for the restoration of the credit of the United States? He asked gentlemen whether they would lend a hand to rivet round the necks of their fellow-citizens a regulation which experience had convinced them was unjust, unequal, and oppressive? Yet the gentleman from Massachusetts (Mr. AMES) had declared that experience had convinced him that at least one particular article was subjected to a duty of this kind. Mr. GERRY asked his colleague if he advocated carrying the taxes to such an extent as to accumulate sums in the treasury for which the United States had no particular use? Yet if this revenue law were made perpetual, it would collect money into the public coffers after the national debt was paid. This would be such a temptation to the Executive to possess itself by force of the treasures of the nation, as he hoped would never be put in its way. If our commerce and population increased, this revenue would increase in the same proportion. He could not, therefore, bear the idea of all this money being collected into one spot, unless there was an absolute demand for it. He thought it incompatible with the liberty and security of the people, and therefore hoped the House would agree to a short limitation. Mr. MADISON, for the sake of accommodation, would make another proposition. He was extremely sorry to differ with gentlemen about modes, when their object appeared to be the same. He thought the spirit of the constitution and the structure of the Government rendered it improper to pass a perpetual revenue law. The arguments had been clear on this point; but as there was an evident propriety in making the means commensurate to the occasion, he was inclined to give the bill such a perpetuity as would answer the purpose of providing for the public debt and restoring the national credit. He thought this might be done by modifying his motion so as to refer to the collection bill; for he hoped, before that passed, the House would be able to ascertain the appropriation, and could limit it accordingly. The words he would propose were, that this act should not continue and be in force longer than the ---- day of ----, unless otherwise limited by the act providing for the appropriation. As he had heard it intimated that the yeas and nays would be called on this question, he was desirous of rendering the clause as satisfactory as possible. Mr. AMES could not bear to lie under the imputation of inconsistency, with which he was charged, inasmuch as he contended against the limitation of a bill he had opposed as oppressive in some of its parts. He believed the amendment now offered was new to almost every gentleman. For his part, he had always supposed it was intended as a permanent system. He remembered many gentlemen made use of this expression, through the various debates which had taken place in the several stages of the bill. He had understood it in this light, and had therefore combated, with some degree of energy, such parts as appeared to him impolitic or unjust. He imagined the gentlemen on both sides had labored to make the bill as perfect as possible, with a view of making an equitable provision for the public exigencies, which should affect all parts of the Union with the greatest degree of impartiality. Mr. SHERMAN observed, that when Congress applied to the several States for the five per cent. impost, they judged it would enable them to extinguish the national debt in twenty-five years; but, in addition to this fund, they expected to make annual requisitions on the States, for one and a half million of dollars at least; so that gentlemen could not expect the whole to be paid by this single fund in a short time. He wished a limitation to the law in general terms, such as until the debt, foreign and domestic, is discharged. He thought a short term would made an unfavorable impression upon the minds of the public creditors, and tend in a great measure to cloud the happy prospects that began to brighten the political hemisphere of this country. Mr. GERRY expressed an intention of calling the yeas and nays if he was supported, because he thought it a question in which the essential interests of the people were deeply involved. Mr. LAWRENCE said, he held his present opinion upon the purest principles of patriotism, and an ardent love for his country's happiness. He had no objection to the yeas and nays being taken, as he was not inclined to disguise his sentiments. Mr. PAGE was glad the yeas and nays were called, as it would give gentlemen an opportunity of showing to their constituents their approbation of a measure calculated to secure the blessings of liberty to themselves and posterity. Several members rose to speak on this question, when Mr. AMES moved the adjournment, fearing gentlemen would grow warm upon the question. Whereupon, the House adjourned. SATURDAY, May 16. Mr. SENEY, from Maryland, presented to the House an act of the Legislature of that State, offering to the acceptance of Congress ten miles square of territory, in any part of the said State, for the seat of the Federal Government, which was read and ordered to lie on the table. _Duties on Imports._ The House resumed the consideration of the amendment proposed yesterday to the bill for laying a duty on goods, wares, and merchandises imported into the United States, and the said amendment read as follows: "And be it further enacted by the authority aforesaid, that this act shall be in force until the ---- day of ----, and from thence until the end of the next session of Congress which shall happen thereafter." The question was called for, and Mr. LAWRENCE required the ayes and noes. Mr. JACKSON wished to say a few words on the bill. The ayes and noes being called for, he conceived it his duty to state his reasons for his vote. He declared himself to be in favor of the limitation, for the reasons offered by honorable gentlemen yesterday. He said he had as ardent a desire to re-establish public credit, and place it on a good footing, as any member on that floor, yet he did not think making this law perpetual would have that tendency. He had no doubt but every subsequent Legislature would be equally desirous of doing justice to the creditors of the Union, and he therefore felt no uneasiness in leaving such provision to be made by them. If the next Legislature were disposed to violate the public honor, would the law now under consideration stand in their way? For his part, he could not conceive it an insuperable bar. He believed there was not a member who liked every part of the bill. Under these circumstances, what was to be expected but complaints from the people, and a consequent repeal of the bill? He did not wish to insinuate that the Senate would be so depraved as to oppose the public voice, but they might misunderstand it; they were a permanent body, and might be more inclined to support what they considered the honor of the Government than the convenience of the people. The House of Representatives appeared to him to be the body best calculated to know and feel the interests of their immediate constituents; they ought, therefore, to preserve the power of redressing grievances, and not give too much into the hands of the Senate. He acknowledged the claims which those that fought and bled for their country had upon the justice of Congress; but he did not believe that class of citizens would complain or murmur at this House for keeping the purse strings in their hands, when it was considered necessary to the security and happiness of the people. Mr. WHITE did not see the necessity of calling the yeas and nays: he thought the measure was intended to have one of these two objects, either to show one part of the House had mistaken the interest of their country, and ought to be held up to posterity, in order that their memories may be charged with their want of knowledge; or that there is a part of this House who think themselves more wise and patriotic than the majority. He never called the yeas and nays in his life, nor believed he ever should; but he was willing to have his vote appear, in all cases, when gentlemen thought proper to perpetuate the decision of the House in that way. On this occasion he would vote in favor of the amendment, and would endeavor to answer the objections, which, if well founded, would be a subject of great uneasiness in his mind, considering how he intended to give his vote. He would now proceed to examine, whether rendering this law perpetual would be a wise and prudent measure. It had been well observed by the gentleman from Georgia, (Mr. JACKSON,) that every part of the law would bear harder on some States than on others; perhaps there was no State in the Union which would not be in some degree dissatisfied. He could perceive, by the sentiments of gentlemen in this House, that the burthens would be peculiarly felt; under these impressions, gentlemen have expressed themselves more warmly than perhaps they ought. There had been predictions of the most dangerous consequences of high duties, which he would not repeat; if these dangers were not imaginary, would it be prudent in the House, to risk these consequences, and make these dangers unavoidable by rendering the law perpetual. Much pains had been taken to impose the burthens as equally as possible. If the duty on molasses bears hard upon one State, the tonnage duty would bear equally so upon others. But still it is probable, that there are unequal pressures laid by the bill, which experience alone could enable the Legislature to alter to the satisfaction of all parties. The system was great, complex, and comprehensive; it embraces commerce, manufactures, agriculture, finance, and, in short, every thing in which a nation can be concerned. Will it be prudent, then, under our present disadvantages, and without information, to enact a law affecting the highest interests of the people, which can never be repealed but by the consent of three independent bodies? Gentlemen have told us, that no valuable purpose can be answered by making the law temporary; now, he thought a valuable purpose could be answered by it. The two Houses of Congress, with the qualified negative of the President, formed the legislative power of the United States; they are distinct powers to be exercised by both branches of the Legislature. The House had been told, on a former occasion, that the Senate possessed greater powers than the Representatives. He admitted that, in some instances, they had greater powers; but with respect to revenue matters, they certainly had less, and very properly so. Shall we then give up to a body, who has already a superiority over us, those superior powers which we possess relative to revenue? A perpetual system would give the Senate greater advantages than constitutionally they ought to enjoy. He thought it of little consequence for the House to possess the right of originating money bills, if those money bills were made perpetual. The exercise of this right would be lost, and he thought it necessary that every part of Government should feel itself dependent upon the people. We have been told, with truth, that the Senate are a virtuous body; they are so, and he hoped would remain so, for ages yet to come, nay for ever; and, in his legislative capacity, he would act upon no other supposition. But still it ought to be remembered, that they would always be men, and liable to all the errors, frailties, and infirmities, with the rest of their fellow-mortals; besides, they were constituted in some measure for purposes to which the other branch was incompetent; while this House was constituted for purposes for which the Senate is unequal. It is a well-grounded republican maxim, that taxation and representation should depend each on the other. The people should be taxed only by representatives chosen for that purpose. This principle was written in the hearts of our British ancestors; it had been maintained by the best blood of our citizens, and he hoped it would descend with the fullest energy to our posterity. What, said he, are we about to do? A great branch of revenue, indeed the only branch, to which an application is now proper, or expected by the people, is about to be put out of our hands for ever; for it would not be in the power of this House, or any future House, to annihilate those funds without the consent of the Senate and the concurrence of the President. Now, the Senate are not an equal representation of the people; in that body the States have equal numbers, while, in this House, the representation is proportioned to their population. Delaware sends one, Georgia three, and Virginia ten. Is it possible, in the nature of things, that two Senators can be as well acquainted with the feelings and interest of the people of Virginia, as ten men selected from among them, and taken from the several parts of the State? Will the people be satisfied to have that body able to continue a revenue system which their immediate representatives think oppressive, or perhaps unnecessary? Certainly they would not; whatever the wisdom and virtue of the Senate may be, he was convinced they were not competent to those peculiar objects for which a just representation was absolutely necessary. The Senate, it is true, is not a House of Lords; they do not possess any properties materially distinguishing them from the members of the House of Representatives; but, though the distinction is not so striking in the one case as in the other, yet it was nevertheless real. The House of Lords is created by the King, and is a permanent body; the Senate is chosen by the State Legislatures, and though the individuals have not a permanency in office, yet the body never ceases to exist. These circumstances, in the constitution of the Senate, afforded a powerful objection to the new system of Government, and the people would never have adopted it, had they supposed that the powers of this body were unlimited in continuing a system of taxation, which had at any time met the approbation of their particular representatives.[23] Mr. TUCKER did not think it necessary to give his opinion otherwise than by his vote, because gentlemen, who had yesterday delivered their sentiments in favor of the clause, had anticipated what he had to say. But as he found himself influenced by the call for the ayes and noes on this question, he should be induced to state some of his reasons in favor of the amendment. He said, he was glad the ayes and noes had been called, and if it had not been done by any other gentleman, he should have conceived himself bound to have done it; because he did not think himself at liberty, but on very particular occasions, to make a law perpetual. He wished to see a doctrine established, never to pass a law without limitation, unless justified by some extraordinary circumstances. Nothing, he thought, could ever justify such an act but the immutability of the object, and the absolute necessity and simplicity of every thing relating to it. If the House passed a perpetual revenue law, which had not an immutable object, they would abridge their own power, and destroy one of the great privileges of the people. Every bill of this nature, more or less, narrows the powers of this House, and throws it into the hands of the Executive and a minority of the Senate; for it is to be considered, that whenever we pass a bill on any subject, every matter in that bill contained is given up to the Executive and one-third of the Senators, so much so that it is out of the power of this House, even with a unanimous vote, to recover any part of it. Mr. SYLVESTER was in favor of the limitation clause. A good deal had been said in the House respecting the jarring interests of the several States. It had been confessed on all hands, that this was an experimental law: he viewed it as such, and expected, in the course of a few years, the Legislature would be able to discover the errors of this day. But what advantage can result from their knowledge, if they have not power to make the necessary alterations, or to build up a new system more perfect than the old? He had examined the annals of history, but was unable to discover that any nation had ever established a perpetual revenue law. He imagined gentlemen would admit these reasons to be sufficient to warrant the vote they were about to give. Mr. SINNICKSON did not expect this was to be a perpetual law, incapable of alteration; but he wished to see it a permanent system. The idea of a temporary system was long ago said to be out of the contemplation of the House. He should only observe, in addition to this, that our credit depended essentially upon what should be done at this time. He thought if the revenue existed merely upon the breath of the Legislature, for one or two years at a time, we should never attain that object. He thought that the public good required something substantial to be done in favor of those who had lent the public money in the hour of distress. Mr. BOUDINOT thought himself obliged to say a few words more, in order to justify the part he should take in the division of the House on this question. He conceived the manner in which the motion was brought before the House, after the bill was supposed to be gone through, did not give such opportunity for the members to consider the subject as its importance seemed to require, and which might have been had if it had been brought forward at an earlier period. If, said he, we are to have the measures of the Parliament of Great Britain hung about our necks in all our public proceedings, and observations from their practice perpetually sounding in our ears, that practice ought to be defined and established. He believed that in the whole volumes of the statute law, there was not one single revenue act to be found with a limitation. He believed that the revenue laws, passed fifty, sixty, eighty, and near a hundred years ago, in that kingdom, existed at the present moment. We have long seen and been convinced of the infirmities of the former confederation, and shall we now rivet those infirmities upon the present constitution? Are we never to stand upon a certain and solid foundation? Is not our public credit totally gone? Has not experience convinced us that the loss of it would have been our total destruction, if the generous exertions we have lately made had not revived some degree of confidence in our future measures? Are we not so deeply in debt as to give us reason to believe that it will require many years to emancipate ourselves? If this is the case, will a revenue law for one or two years bring that relief which is expected? Will this prevent an increase of the public debt? Will it restore value to the evidences of that debt held by our creditors? He would ask any man, whether, if the United States were in the situation in which they were last war, he would be induced to lend money upon a temporary and inadequate fund provided for two years? He believed the answer would be in the negative. Mr. MADISON withdrew his motion in order to introduce another, which he hoped would reconcile both sides of the House. He joined those gentlemen who opposed the clause in thinking that one or two years would be a period insufficient to answer the purposes in contemplation. If the House agree to the clause he would substitute for the one just withdrawn, he would move to fill the blank with a more distant day. His motion was, that this act shall not continue in force after the ---- day of ---- unless otherwise provided in the act for the appropriation of the revenue. Mr. FITZSIMONS seconded the motion. Mr. SHERMAN liked this motion better than the other. Although he was in favor of leaving the law at large, he would vote for this clause, if the blanks were filled up with a sufficient time to accomplish those objects which the Government had in view in providing revenue. Mr. AMES thought the question would recur when the appropriation or collecting bill came before them; he would rather, for his own part, decide the question at this moment, than consume the time of the House with another debate. Besides the House was not in possession of an act for appropriating the revenue; such a measure might never be agreed to; therefore he hoped the decision would take place at this time rather than be evaded. Mr. FITZSIMONS was of opinion, that this revenue ought to be appropriated to the payment of the public debts; what were the views of other gentlemen he could not say. He was nevertheless in favor of limiting the law, and that upon constitutional principles, though he wished it commensurate to its object. Gentlemen had said a great deal respecting the imperfection of the system, that it was the effect of compromise; but nevertheless, he thought it as free from defects as it was possible a revenue system could be formed with such materials as the House possessed; but if it was imperfect, he did not see the difficulties some gentlemen mentioned, in altering and amending it when experience shall have pointed out its defects. Mr. BOUDINOT acquiesced in the motion now brought forward for the sake of accommodation, although he thought the bill would stand better without any limitation clause whatever. Mr. PAGE was against the latter part of this clause. It had been justly said, that the bill would be oppressive; but, from the necessity of the times, the people will submit to it. Shall we not let them see the end of their burthen in the law itself? Are they to look into another bill for that purpose? Perhaps after the Senate have agreed to this act, they may oppose the limitation in the subsequent one; they may insist upon having this in perpetuity, and then the object which the House have in view will be defeated. Mr. SMITH, of South Carolina, moved a division of the question. Mr. LEE wished to strike out that part of the motion which related to the exception. Mr. LIVERMORE seconded Mr. LEE. The question was put, and that part of the clause lost. The question now stood as originally introduced to the House. The previous question was then demanded by five members: Shall the main question be now put? And on the question, shall the main question be now put? it was resolved in the affirmative. And then the main question being put, that the House do agree to the amendment proposed to the said bill, it was resolved in the affirmative--ayes 41, noes 8. The ayes and noes being called for by one-fifth of the members present: Those who voted in the affirmative, are, Messrs. Abraham Baldwin, Egbert Benson, Theodorick Bland, �danus Burke, Daniel Carroll, Isaac Coles, Benjamin Contee, Thomas Fitzsimons, William Floyd, George Gale, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, Samuel Griffin, Jonathan Grout, John Hathorn, Daniel Heister, Benjamin Huntington, James Jackson, Richard Bland Lee, George Leonard, Samuel Livermore, James Madison, junior, Andrew Moore, Peter Muhlenberg, John Page, Josiah Parker, George Partridge, Jeremiah Van Rensselaer, Joshua Seney, Thomas Scott, William Smith, William Smith, of South Carolina, Jonathan Sturgis, Peter Sylvester, Jonathan Trumbull, Thos. Tudor Tucker, John Vining, Jeremiah Wadsworth, Alexander White, and Henry Wynkoop. Those who voted in the negative, are, Messrs. Fisher Ames, Elias Boudinot, Lambert Cadwalader, George Clymer, John Lawrence, Roger Sherman, Thomas Sinnickson, and George Thatcher. The clause being added, it was agreed to fill the blank so as to read the first day of June, 1796. _Ordered_, That the said bill, with the amendments, be engrossed, and read the third time to-day.[24] MONDAY, May 18. _Resolved_, That leave be given to bring in a bill concerning the importation of certain persons into the United States, prior to the year 1808, and that Mr. PARKER, Mr. SINNICKSON, and Mr. MUHLENBERG, do prepare and bring in the same. TUESDAY, May 19. _Executive Departments._ On motion of Mr. BOUDINOT, the House resolved itself into a Committee of the whole House on the state of the Union. Mr. TRUMBULL in the chair. Mr. BOUDINOT.--I rise, Mr. Chairman, with diffidence, to introduce a subject to the consideration of the committee, which I had hopes would have been brought forward by an abler hand; the pressing necessity of it must alone be my excuse. The great executive departments which were in existence under the late confederation, are now at an end, at least so far as not to be able to conduct the business of the United States. If we take up the present constitution, we shall find it contemplates departments of an executive nature in aid of the President: it then remains for us to carry this intention into effect, which I take it will be best done by settling principles for organizing them in this place, and afterwards appoint a select committee to bring in a bill for the same. I need say little to convince gentlemen of the necessity which presses us into a pursuit of this measure. They know that our national debt is considerable; the interest on our foreign loans, and the instalments due, amount to two millions of dollars. This arrearage, together with the domestic debt, is of great magnitude, and it will be attended with the most dreadful consequences to let these affairs run into confusion and ruin, for want of proper regulations to keep them in order. I shall move the committee therefore to come to some such resolution as this: That an officer be established for the management of the finances of the United States, at the head of which shall be an officer to be denominated the Secretary of Finance. I am not tenacious of the style, perhaps some other may be proper, but the object I have in view is to establish the department; after which we may go on to narrate the duties of the officer, and accommodate the name to the acts he is to perform. The departments under the late constitution are not to be models for us to form ours upon by reason of the essential change which has taken place in the Government, and the new distribution of legislative, executive, and judicial powers. If gentlemen then agree with me so far, I shall proceed to restrain the Secretary of Finance, and all persons under him, from being concerned in trade or commerce, and make it his duty to superintend the treasury and the finances of the United States, examine the public debts and engagements, inspect the collection and expenditure of the revenue, and to form and digest plans for its improvement. There may be other duties which gentlemen may add, as I do not pretend to have perfectly enumerated them all. After this point is settled, we may then go to the consideration of the War Department, and the Department of Foreign Affairs; but, for the present, I would wish to confine ourselves to the Department of Finance. Mr. BENSON wished the committee to consider what he judged to be a previous question, namely, how many departments there should be established? He approved of the division mentioned by the gentleman; but would, with his leave, move that there be established in aid of the Chief Magistrate, three executive departments, to be severally denominated the Department of Foreign Affairs, Treasury, and War. After determining this question, if it was a proper division, the committee might proceed to enumerate the duties which should be attached to each. Mr. BOUDINOT said, he could apologize for not bringing the business on in another way. It seemed to be a settled point in the House that a Committee of the Whole was the proper place for determining principles before they were sent elsewhere; he had therefore adopted that mode on the present occasion, though his own judgment would incline him to pursue that last mentioned by the gentleman from Virginia, (Mr. BLAND.) He conceived the necessity of having such an office was indisputable; the Government could not be carried on without it; but there may be a question with respect to the mode in which the business of the office shall be conducted; there may also be a question respecting the constitution of it, but none with respect to the establishment of either of the three departments he had mentioned. Mr. BENSON said, his motion was founded upon the constitutional division of these powers; the constitution contemplated them, because it gave the President the right of requiring the opinion of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. If gentlemen were inclined to waive the determination for the present, he had no objection; it was certainly a subject of great importance, and required time for consideration. Mr. VINING thought the gentleman should have added another department, viz: the Home Department. The territorial possessions of the United States, and the domestic affairs, would be objects of the greatest magnitude, and he suspected would render it essentially requisite to establish such a one. Mr. BOUDINOT wished to confine the question to the Department of Finance. A motion was made by Mr. BLAND for the committee's rising. Mr. MADISON hoped they would not rise until the principles were settled. He thought it much better to determine the outlines of all business in a Committee of the Whole. He was satisfied it would be found, on experience, to shorten their deliberations. If the gentlemen who had offered motions to the committee would withdraw them, he would offer one which he judged likely to embrace the intentions of both gentlemen. Mr. BENSON withdrew his motion, and Mr. MADISON moved, that it is the opinion of this committee, that there shall be established an Executive Department, to be denominated the Department of Foreign Affairs, at the head of which there shall be an officer, to be called the Secretary to the Department of Foreign Affairs, who shall be appointed by the President, by and with the advice and consent of the Senate; and to be removable by the President. That there shall be a Treasury Department, &c. That there shall be a War Department, &c. Mr. VINING seconded the motion, and offered to amend it, by adding the Domestic Department, _mutatis mutandis_. He said this department, in his opinion, was of absolute necessity, more requisite than either of the other three, except the Department of Finance; the present and increasing duties of such a department will oblige them to make the establishment. Mr. LIVERMORE was not prepared to decide on the question even as now brought forward, nor did he see a reason why the Department of Foreign Affairs was placed at the head of the list. He thought the Treasury Department of more importance, and consequently deserved the precedence. As to the Domestic Department just mentioned by the gentleman from Delaware, he thought its duties might be blended with the others, and thereby save the United States the expense of one grand department. If the gentleman, therefore, would wait to see what were the duties assigned to them severally, he would be able to judge respecting his motion with greater propriety. Mr. VINING withdrew his motion for the present. And the committee agreed to the establishment of the Department of Foreign Affairs, and placing at the head thereof an officer to be called the Secretary of Foreign Affairs; but when they came to the mode of appointing the officer, Mr. SMITH (of South Carolina) moved to strike out the words "who shall be appointed by the President, by and with the advice and consent of the Senate." He conceived the words to be unnecessary; besides, it looked as if they were conferring power, which was not the case, for the constitution had expressly given the power of appointment in the words there used. He also objected to the subsequent part of this paragraph, because it declared the President alone to have the power of removal. Mr. PAGE saw no impropriety in passing an act to carry into execution the views of the constitution, and therefore had no objection to repeat those words in the resolution. He thought if the committee stopped there, they would be under no difficulty respecting the propriety of their measure, but if they went further they might meet with considerable embarrassment. Mr. MADISON remarked, that as there was a discretionary power in the Legislature to give the privilege to the President alone of appointing inferior officers, there could be no injury in declaring in the resolution the constitutional mode of appointing the heads of departments; however, if gentlemen were uneasy, he would not object to strike it out. Mr. LEE thought this officer was an inferior officer; the President was the great and responsible officer of the Government; this was only to aid him in performing his executive duties; hence he conceived the power of appointing to be in the gift of the Legislature, and therefore the words were proper. Mr. SMITH (of South Carolina.)--This officer is at the head of a department, and one of those who are to advise the President; the inferior officers mentioned in the constitution are clerks and other subordinate persons. The words are only a repetition of the words in the constitution, and are consequently superfluous. The question was taken on striking out those words, and carried in the affirmative. The committee proceeded to the discussion of the power of the President to remove this officer. Mr. SMITH said, he had doubts whether the officer could be removed by the President. He apprehended he could only be removed by an impeachment before the Senate, and that, being once in office, he must remain there until convicted upon impeachment. He wished gentlemen would consider this point well before they decided it. Mr. MADISON did not concur with the gentleman in his interpretation of the constitution. What, said he, would be the consequence of such construction? It would in effect establish every officer of the Government on the firm tenure of good behavior; not the heads of departments only, but all the inferior officers of those departments, would hold their offices during good behavior, and that to be judged of by one branch of the Legislature only on the impeachment of the other. If the constitution means this by its declarations to be the case, we must submit; but I should lament it as a fatal error interwoven in the system, and one that would ultimately prove its destruction. I think the inference would not arise from a fair construction of the words of that instrument. It is very possible that an officer who may not incur the displeasure of the President, may be guilty of actions that ought to forfeit his place. The power of this House may reach him by the means of an impeachment, and he may be removed even against the will of the President; so that the declaration in the constitution was intended as a supplemental security for the good behavior of the public officers. It is possible the case I have stated may happen. Indeed, it may, perhaps, on some occasion, be found necessary to impeach the President himself; surely, therefore, it may happen to a subordinate officer, whose bad actions may be connived at or overlooked by the President. Hence the people have an additional security in this constitutional provision. I think it absolutely necessary that the President should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt. Mr. BENSON.--If we refer to the constitution for light on this subject, it will appear evident that the objection is not well founded. The objection is this, that an officer ought not to be removed but by impeachment; then every officer is appointed during good behavior. Now, the constitution expressly declares, that the Judges, both of the Supreme and Inferior Courts, shall hold their offices during good behavior. If it is declared, that they are to hold their offices by this particular tenure, it follows that the other officers of the Government should hold them only at pleasure. He thought this an important question, and one in which they were obliged to take the constitution by construction. For although it detailed the mode of appointing to office, it was not explicit as to the supersedure; this clause, therefore, would be a mere declaration of the legislative construction on this point. He thought the importance and necessity of making the declaration, that the Chief Magistrate might supersede any civil officer was evident, and he should therefore vote in favor of the clause as it stood. Mr. VINING said, there were no negative words in the constitution to preclude the President from the exercise of this power; but there was a strong presumption that he was invested with it: because it was declared, that all executive power should be vested in him, except in cases where it is otherwise qualified; as, for example, he could not fully exercise his executive power in making treaties, unless with the advice and consent of the Senate--the same in appointing to office. He viewed the power of removal, by impeachment, as a supplementary security to the people against the continuance of improper persons in office; but it did not consist with the nature of things, that this should be the only mode of removal; it was attended with circumstances that would render it insufficient to secure the public safety, which was a primary object in every Government. Witness a transatlantic instance of its incompetency--he meant the famous case of Mr. Hastings. With what difficulty was that prosecution carried on! What a length of time did it take to determine! What is to be done while the impeachment is depending? For, according to the ideas of the gentleman from South Carolina, (Mr. SMITH,) he cannot be removed but on conviction. If he cannot be removed, I should suppose he cannot be suspended; and what security have the people against the machinations of a bad man in office? He had no doubt but the constitution gave this power to the President; but if doubts were entertained, he thought it prudent to make a legislative declaration of the sentiments of Congress on this point. He was therefore in favor of the clause. Mr. BLAND thought the power given by the constitution to the Senate, respecting the appointment to office, would be rendered almost nugatory if the President had the power of removal. If the first nomination of the President should be disapproved by the Senate, and the second agreed to, he had nothing to do but wait the adjournment of Congress, and then fill the vacancy with his favorite; who, by thus getting into the possession of the office, would have a considerable chance of permanency in it. He thought it consistent with the nature of things, that the power which appointed should remove; and would not object to a declaration in the resolution, if the words were added, that the President shall remove from office, by and with the advice and consent of the Senate. He agreed that the removal by impeachment was a supplementary aid favorable to the people; but he was clearly of opinion, that the same power that appointed had, or ought to have, the power of removal. Mr. JACKSON wished the motion had been referred to a sub-committee to digest: it seemed to him they were building the house before the plan was drawn. He wished to see the system reduced to writing, that he might leisurely judge of the necessity and propriety of each office and its particular duties. With respect to the question before the House he was of opinion that if the House had the power of removal by the constitution, they could not give it out of their hands; because every power recognized by the constitution must remain where it was placed by that instrument. But the words in the constitution declare, in positive terms, that all civil officers shall be removed from office on impeachment for, and conviction of, high crimes and misdemeanors; and however long it may take to decide, in this way it must be done. He did not think the case of Mr. Hastings ought to be brought forward as a precedent for conducting such business in the United States. He believed, whenever an impeachment was brought before the Senate, they would proceed with all imaginable speed to its termination. He should, in case of impeachment, be willing to go so far as to give the power of suspension to the President, and he thought this all the security which the public safety required; it would prevent the party from doing further mischief. He agreed with the gentleman in the general principle, that the body who appointed ought to have the power of removal, as the body which enacts laws can repeal them; but if the power is deposited in any particular department by the constitution, it is out of the power of the House to alter it. Mr. MADISON did not conceive it was a proper construction of the constitution to say, that there was no other mode of removing from office than that by impeachment; he believed this, as applied to the Judges, might be the case, but he could never imagine it extended in the manner which gentlemen contended for. He believed they would not assert, that any part of the constitution declared, that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law; therefore, most certainly, it is in the discretion of the Legislature to say upon what terms the office shall be held, either during good behavior or during pleasure. Under this construction, the principles of the constitution would be reconcilable in every part; but under that of the gentleman from South Carolina, it would be incongruous and faulty. He wondered how the gentleman from Georgia (Mr. JACKSON) would reconcile his principles so far as to permit the President to suspend the officer. He begged his colleague (Mr. BLAND) to consider the inconvenience his doctrine would occasion, by keeping the Senate constantly sitting, in order to give their assent to the removal of an officer; they might see there would be a constant probability of the Senate being called upon to exercise this power, consequently they could not be a moment absent. Now, he did not believe the constitution imposed any such duty upon them; why, then, said he, shall we enjoin it, especially at such an expense of the public treasure? Mr. BOUDINOT would by no means infringe the constitution by any act of his, for if he thought this motion would lead the committee beyond the powers assigned to the Legislature, he would give it a decided negative; but, on an impartial examination of that instrument, he could not see the least foundation for such an objection; however, he was glad the question had come forward, because he wished to give a legislative construction to this part of the constitution. The gentlemen who denied the power of the President to remove from office, founded their opinion upon the fourth section of the second article of the constitution, where it is declared, that all officers shall be removed from office on impeachment for, and conviction of, treason or bribery. If their construction is admissible, and no officer whatever is to be removed in any other way than by impeachment, we shall be in a deplorable situation indeed. Consider the extent of the United States, and the difficulty of conducting a prosecution against an officer, who, with the witnesses, resides a thousand miles from the seat of Government. But suppose the officer should, by sickness, or some other accident, be rendered incapable of performing the functions of the office, must he be continued? And yet it is to be apprehended, that such a disability would not furnish any good ground for impeachment; it could not be laid as treason or bribery, nor perhaps as a high crime or misdemeanor. Would gentlemen narrow the operation of the constitution in this manner, and render it impossible to be executed? Mr. WHITE thought no office under the Government was to be held during pleasure, except those which are to be constituted by law; but all the heads of departments are to be appointed by the President, by and with the advice and consent of the Senate. He conceived that, in all cases, the party who appointed ought to judge of the removal, except in those cases which by the constitution are excepted; and in those cases impeachment and conviction are the only mode by which they can be removed. Mr. THATCHER asked, why the Judges were particularly mentioned in the constitution as holding their offices during good behavior, if it was not supposed that, without this express declaration in their favor, they, in common with all other officers not immediately chosen by the State Legislatures and the people, would hold them during pleasure? The clause respecting impeachments was particularly calculated for removing unworthy officers of the other description. Holding this construction of the constitution to be right, he was in favor of the clause as it stood. Mr. SYLVESTER thought the constitution ought to have a liberal construction, and therefore was of opinion that the clause relative to the removal by impeachment was intended as a check upon the President, as already mentioned by some gentlemen, and to secure to the people, by means of their representatives, a constitutional mode of obtaining justice against peculators and defaulters in office, who might be protected by the persons appointing them. He apprehended the doctrine held out by the gentleman from South Carolina would involve the Government in great difficulties, if not in ruin, and he did not see it was a necessary construction of the constitution. Why, then, should the House search for a meaning, to make the constitution inconsistent with itself, when a more rational one is at hand? He, however, inclined at present to the sentiments of the gentleman from Virginia, (Mr. BLAND,) who thought the Senate ought to be joined with the President in the removal, as they were joined by the constitution in the appointment to office. Mr. GOODHUE was decidedly against combining the Senate in this business. He wished to make the President as responsible as possible for the conduct of the officers who were to execute the duties of his own branch of the Government. If the removal and appointment were placed in the hands of a numerous body, the responsibility would be lessened. He admitted there was a propriety in allowing the Senate to advise the President in the choice of officers; this the constitution had ordained for wise purposes; but there could be no real advantage arising from the concurrence of the Senate to the removal, but great disadvantages. It might beget faction and party, which would prevent the Senate from paying proper attention to the public business. Upon the whole, he concluded the community would be served by the best men when the Senate concurred with the President in the appointment; but if any oversight was committed, it could best be corrected by the superintending agent. It was the peculiar duty of the President to watch over the executive officers; but of what avail would be his inspection, unless he had a power to correct the abuses he might discover. Mr. GERRY.--The constitution provides for the appointment of the public officers in this manner: The President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. Now, if there be no other clause respecting the appointment, I shall be glad to see how the heads of departments are to be removed by the President alone. What clause is it that gives this power in express terms? I believe there is none such. If there is a power of removal, besides that by impeachment, it must vest somewhere. It must vest in the President, or in the President and Senate, or in the President, Senate, and House of Representatives. Now, there is no clause which expressly vests it in the President. I believe no gentleman contends it is in this House, because that would be that mingling of the executive and legislative powers gentlemen deprecate. I presume, then, gentlemen will grant, that if there is such a power, it vests with the President, by and with the advice and consent of the Senate, who are the body that appoints. I think we ought to be cautious how we step in between the President and the Senate, to abridge the power of the one, or increase the other. If the power of removal vests where I suppose, we, by this declaration, undertake to transfer it to the President alone. It has been mentioned, that it is proper to give this power to the President, in order to make him more fully responsible for this officer. I am for supporting the President to the utmost of my power, and making him as responsible as possible. I would therefore vest every gift of office, in the power of the Legislature, in the President alone; but I cannot think we ought to attempt to give him authority to remove from office, in cases where the constitution has placed it in other hands. Mr. LIVERMORE considered this as a constitutional question, and was of opinion, that the same power which appointed an officer, had the right of removal also, unless it was restrained by an express declaration to the contrary. As the President, by and with the advice and consent of the Senate, is empowered to appoint ambassadors, certainly they have a right to remove them and appoint others. In the case of the judges, they must be appointed for life, or during good behavior. He had no idea, that it could ever enter into the heart of any man living, that all officers appointed under the constitution were to have a perpetuity in office. The judges themselves would not have had this right, if it had not been expressly given by the constitution, but would be removable in like manner with ambassadors, other public ministers, and consuls. He took it, therefore, in the present case, that the President and the Senate would have the power of removing the Secretary of Foreign Affairs. The only question, therefore, which appears to be before the committee is, whether we shall give this power to the President alone? And with that he thought they had nothing to do. He supposed, if the clause was left out, the President and the Senate would proceed, as directed by the constitution, to appoint the officer; and hereafter, if they judged it necessary, would remove him; but if they neglected to do so, when it was necessary, by reason of his misdemeanors, this House would impeach him, and so get rid of him on conviction. Mr. BLAND.--It seems to be agreed on all hands, that there does exist a power of removal; the contrary doctrine would be a solecism in Government. If an officer embezzles the public money, or neglects or refuses to do the duties of his appointment, can it be supposed there is no way of getting rid of such a person? He was certain it was essentially necessary such a power should be lodged somewhere, or it would be impossible to carry the Government into execution. Their inquiries were therefore reduced to this point: Does it reside, agreeably to the constitution, in the President, or in the President and the Senate? The constitution declares, that the President and the Senate shall appoint, and it naturally follows, that the power which appoints shall remove also. What would be the consequence of the removal by the President alone, he had already mentioned, and need not repeat. A new President might, by turning out the great officers, bring about a change of the ministry, and throw the affairs of the Union into disorder: would not this, in fact, make the President a monarch, and give him absolute power over all the great departments of Government? It signifies nothing that the Senate have a check over the appointment, because he can remove, and tire out the good disposition of the Senate. Mr. CLYMER said, the power of removal was an executive power, and as such belonged to the President alone, by the express words of the constitution: "the executive power shall be vested in a President of the United States of America." The Senate were not an executive body; they were a legislative one. It was true, in some instances, they held a qualified check over the executive power, but that was in consequence of an express declaration in the constitution; without such declaration, they would not have been called upon for advice and consent in the case of appointment. Why, then, shall we extend their power to control the removal which is naturally in the Executive, unless it is likewise expressly declared in the constitution? The question on adding the words "by and with the advice and consent of the Senate," as moved by Mr. BLAND, was put and lost. The question was now taken, and carried by a considerable majority, in favor of declaring the power of removal to be in the President. WEDNESDAY, May 20. _Treasury Department._ The House again resolved itself into a Committee of the Whole on the state of the Union, Mr. TRUMBULL in the chair. The resolution for establishing the Treasury Department being under consideration: Mr. GERRY.--We are now called upon, Mr. Speaker, to deliberate, whether we shall place this all-important department in the hands of a single individual, or in a Board of Commissioners. I presume the gentleman, who has brought forward this string of propositions, means, that this officer shall have power to examine into the state of the public debt and expenses, to receive and disburse the revenue, to devise plans for its improvement and expansion, and, in short, to superintend and direct the receipts and expenditure, and govern the finances of the United States; having under him officers to do the subordinate business of registering and recording his transactions, and a Comptroller to control his operations with respect to the accounts and vouchers. Before this committee proceed one step farther in this business, they ought seriously to consider the situation of this country, and what will be the consequence of appointing such an officer; consider how it will affect the public in general, the revenue, and even the Government itself. He is declared, in the list of duties assigned him in the paper read yesterday by the gentleman from New York, (Mr. BENSON,) to have the power to form and digest the accounts, and to control all the officers of the department. It is evident, that we put his integrity to the trial, by such an arrangement. If he is disposed to embezzle the public money, it will be out of the power of the Executive itself to check or control him in his nefarious practices. The extension of his business to the collectors of at least fifty seaports, (over whom the naval officer can have no control, with respect to the money received,) will furnish abundant opportunities for peculation. In addition to the moneys arising from the impost, he may have to do with large sums derived from other quarters, from the sale of the vacant lands, the money of defaulters now due to the United States, and the revenue arising from taxes and excises. Admit these innumerable opportunities for defrauding the revenue, without check or control, and it is next to impossible he should remain unsullied in his reputation, or innoxious with respect to misapplying his trust. Other great opportunities may arise in case of an anticipation of the public revenue; or, if it is necessary to prevent the injury which a rapid depreciation of the securities would occasion to public credit, he may be employed in purchasing them, in order to advance the credit of the Union. But what is to prevent the greatest imposition in this business? Charging them to the public at their nominal value, it is not in the power of the Government to check this species of speculation; what then is the situation of your officer? He must subject himself to suspicion: indeed, it is as much as his reputation is worth to come into a place of this kind; he can hardly preserve his integrity. His honor, credit, and character, must inevitably be injured. He cannot prove himself innocent of the suspicion, because it is the negative side of the question. He can offer nothing more in his defence than a mere denial of the crime. There is another point which ought to be well considered: This officer is to digest and form the accounts. He can consequently give the business such complexity, as to render it impossible to detect his impositions; and as the inferior officers, who might discover the fraud, are to be appointed by the principal, will they not consequently be men after his own heart? Taking these circumstances together, it must be very disagreeable to the person appointed, provided he is an honest, upright man; it will be disagreeable also to the people of the Union, who will always have reason to suspect, that a partiality is shown to the collectors, and other officers of the State to which he belonged. This has absolutely been the case, and was productive of very great dissatisfaction. I would be glad to know of the gentlemen, who are for vesting these powers in a single person, where they will find the man who is capable of performing the duties of a financier? For it is not the mere calling him a financier, and giving him a large salary, that will enable him to perform his functions in such a manner as to give satisfaction. We had once a gentleman who filled such a department, and I believe the only one in the United States who had knowledge and abilities by any means competent to the business; but that gentleman is now employed in another branch of the Government, and cannot be called to this trust. During the late war, Congress thinking it necessary to employ a financier, were led to inquire for a proper character to fill such an office; but not being able to discover such a one in this country, in whose abilities they had sufficient confidence, they wrote to Doctor Price a letter, to induce him to come to America, and accept of an appointment under them, for the superintendence of their finances. He wrote, in answer, that he felt with gratitude the honor which they had done him by their application, and signified, that he was desirous of rendering every service in his power to aid the glorious cause in which America was embarked; but, from his advanced situation in life, and infirmities of body, he was under the necessity of declining. This circumstance serves to show how difficult it is to get a proper person for so arduous an undertaking. But it appears to me, that if we could fix upon a person equal to the office, involving him in forming accounts, and such trifling business, would divert his attention from the more important duties he is called upon to perform. The proper business of finance, I take it, ought to be to consider of the means to improve the revenue, and introducing economy into the expenditures; to recommend general systems of finance, without having any thing to do with the actual administration of them, because, if he engages in the executive business, we shall be deprived of his talents in more important concerns. If it should be granted that there is a person of abilities to be found, adequate to the duties of the office, I want to know where the advantage arises of appointing him alone in preference to a Board? If you have commissioners, you have an opportunity of taking one from each grand division of the United States, namely, the Eastern, the Middle, and Southern Districts. If this person is a member of the Board, is it not evident you will have every advantage from his abilities in such a situation, as you would if he were placed in office without control? If he was possessed of such genius, he could employ it more usefully as a Commissioner of the Board of Treasury, than when left to perform all the drudgery of the executive part; because while his fine imagination was busied in reducing a chaos to a beautiful system, his colleagues might perform those parts which required less elevation of thought; by dividing the burthen, the business would be done with more regularity and facility. Surely no advantage to the public would arise from giving him the sole management of the business, but much inconvenience might; besides, it must unavoidably, as I said before, subject him to suspicions unfavorable to his reputation. This has absolutely been realized; it is not a mere chimera, a matter of speculation. We have had a Board of Treasury, and we have had a Financier. Have not express charges, as well as vague rumors, been brought against him at the bar of the public? They may be unfounded, it is true; but it shows that a man cannot serve in such a station without exciting popular clamor. It is very well known, I dare say, to many gentlemen in this House, that the noise and commotion were such as obliged Congress once more to alter their Treasury Department, and place it under the management of a Board of Commissioners. We have seen speculations excited from this quarter against the Government itself, and painful insinuations of design by his appointment to the Senate. I mention these circumstances to exhibit to your view the inconveniencies to which an officer is subjected by constituting an office of this nature. If the gentleman I have alluded to had been a member of the Board of Treasury, he would not have been subjected to the charges which were brought against him. In such a situation, he could have rendered the services his great abilities enabled him to do, without exposing his character to be torn to pieces by malevolence or detraction. I am desirous of supporting the President; but the Senate requires to be supported also in their constitutional rights. To this body belongs the confidence of the States; while the President rests his support upon them he will be secure. They, with this House, can give him proper information of what is for the public interest, and, by pursuing their advice, he will continue to himself that good opinion which is justly entertained of him. If we are to establish a number of such grand officers as these, the consequences appear to me pretty plain. These officers, bearing the titles of minister at war, minister of state, minister for the finances, minister of foreign affairs, and how many more ministers I cannot say, will be made necessary to the President. If by this establishment we make them more respectable than the other branches of the Government, the President will be induced to place more confidence in them than in the Senate; the people will also be led to consider them as more consequential persons. But all high officers of this kind must have confidence placed in them; they will in fact be the chancellors, the ministers of the nation. It will lead to the establishment of a system of favoritism, and the principal magistrate will be governed by these men. An oligarchy will be confirmed upon the ruin of the democracy; a Government most hateful will descend to our posterity, and all our exertions in the glorious cause of freedom will be frustrated: we shall go on till we reduce the powers of the President and Senate to nothing but a name. This surely, sir, does not comport with the conduct of the House. We have been very tenacious of giving a title to the President, lest it should be implied we desired to increase his power. We would call him by no other appellation than merely President of the United States. I confess I was not such a stickler about titles as all this, because I did not consider that the liberties of the people could be hurt by such means; but I am not clear that the constitution authorizes us to bestow titles; it is not among the enumerated powers of Congress. But if the constitution did authorize it--[A call to order was made by some of the members, and Mr. GERRY was desired to confine himself to the point; the subject of titles was not before the House.][25] Mr. GERRY proceeded, and said the Senate were constitutionally the highest officers of Government, except the President and Vice President; that the House was about to supersede them, and place over their heads a set of ministers who were to hold the reins of Government, and all this to answer no good purpose whatever; because the same services could be obtained from subordinate officers. In short, a Board of Treasury would conduct the business of finance with greater security and satisfaction than a single officer. He had a very good opinion of the gentleman who formerly administered the finances of the United States, and doubted if another of equal qualities could be found; but it was impossible for any person to give satisfaction in such a station. Jealousy would unavoidably be entertained; besides, no inconvenience resulted from the present arrangement of that department; therefore, there could be no good reason to induce a change. If the House was truly republican and consistent, they would not admit officers, with or without titles, to possess such amazing powers as would eventually end in the ruin of the Government. Under these impressions, he moved to amend the resolution so as to read, "there shall be established a Treasury Department, at the head of which there shall be three commissioners, to be denominated the Board of Treasury." Mr. WADSWORTH.--My official duty has led me often to attend at the treasury of the United States, and, from my experience, I venture to pronounce that a Board of Treasury is the worst of all institutions. They have doubled our national debt. (I do not mean by this observation to censure any man who has been in that office: I presume they were honest men, and did as well as could be done under such a system.) But I do not remember a single instance, in any one board, that I found them to have a system that would give even tolerable satisfaction; there appeared a want of confidence in the members of them all: they seemed to have no fixed principles to guide them, nor responsibility for their conduct. I have had also transactions at the treasury whilst it was managed by a Superintendent of Finance. As to what fell from the gentleman last up, (though without intention, I dare say, to affect or prejudice the character of that officer, it may possibly have such an effect,) I think it necessary to state my sentiments, which are formed from my own experience as well as from report. I had great transactions with him, and must say that there did appear to be system in his management, and responsibility in his negotiations. I dare risk my fortune and character with him, because there was unity in the officer, and somebody in whom I could confide. The nature of the office is better calculated to give satisfaction than the other. I will not pretend to enumerate the savings he made, by introducing economy throughout the whole departments under Congress, because I do not know them all; but they were very considerable. The administration of the finances was clear to the meanest capacity. Receipts and expenditures were stated simply; they were published to the world. The heads of the Treasury Department, the Board of Commissioners, I do not believe have closed their accounts to this very day. I do not say it is for want of ability, will, or honesty, that this event has not taken place. I conceive it to be owing to their want of system in conducting their business. I wish the committee had before them the transactions of the board for one single month; they would find what I have remarked to be too well founded. Instead of system and responsibility, they would find nothing but confusion and disorder, without a possibility of checking their accounts. I know I am heard by one gentleman who is acquainted with these truths by experience.[26] I beg leave to repeat once more, that under boards of treasury, there never was a possibility of the public knowing their situation; there is no possibility of getting on with the public accounts and closing them; there have not been the transactions of more than one of the great departments completely settled, owing to a radical defect in their constitution; they cannot proceed with that unity and decision necessary to insure justice. As to what the gentleman said, with respect to the difficulty of getting a proper officer to fill the department, I will just observe, that I do not believe it impossible, and am therefore prepared to attempt it. Mr. BENSON stated, that in the year 1781, from the very great derangement of public affairs, Congress were induced to place the Treasury Department under the superintendence of an individual. It is true, after the conclusion of the war, in the latter end of 1783, or beginning of 1784, Congress again changed their system, and placed the department in the hands of three commissioners, to be taken, as the gentleman has said, one from the Eastern, one from the Middle, and one from the Southern district; which regulation I think induced above twenty applications. Some gentlemen on this floor will doubtless recollect an observation that was made at that time, that if this trust had been to be reposed in one responsible individual, not perhaps more than three of the candidates would have had confidence to come forward as applicants for the office. For his part, he conceived, that it required the same abilities in every individual of the commissioners, as was necessary if a single person was placed at the head of the department. If men competent to the undertaking are so difficult to be found, you will increase the embarrassment of the President threefold by making the arrangement the gentleman contends for. The principle upon which the gentleman advocates the appointment of a Board of Treasury, would apply in favor of a change in the constitution, and we ought to have three Presidents of the United States instead of one, because their business might be done with more regularity and facility; but he did not think the argument to be well founded. Mr. BALDWIN thought that there were very few gentlemen who had much to do with public business, but had turned their attention to this question. He had employed his reflection upon the subject for some time, and his sentiments were against the establishment of a Board of Treasury. He was persuaded there was not so much responsibility in boards as there was in individuals, nor is there such good ground for the exercise of the talents of a financier in that way. Boards were generally more destitute of energy than was an individual placed at the head of a department. The observations of the gentleman from Massachusetts were of great weight, so far as they inferred the necessity of proper checks in the department having care of the public money; if they had system, energy, and responsibility, he should be in favor of them; but his experience had convinced him of the contrary. He was not an advocate for an unlimited authority in this officer. He hoped to see proper checks provided; a Comptroller, Auditors, Register, and Treasurer. He would not suffer the Secretary to touch a farthing of the public money beyond his salary. The settling of the accounts should be in the Auditors and Comptroller; the registering them to be in another officer, and the cash in the hands of one unconnected with either. He was satisfied that in this way the treasury might be safe, and great improvements made in the business of revenue. Mr. MADISON had intended to have given his sentiments on this subject; but he was anticipated in some things by the gentleman last up. He wished, in all cases of an executive nature, that the committee should consider the powers that were to be exercised, and where that power was too great to be trusted to an individual, proper care should be taken so to regulate and check the exercise, as would give indubitable security for the perfect preservation of the public interest, and to prevent that suspicion which men of integrity were ever desirous of avoiding. This was his intention in the present case. If the committee agreed to his proposition, he intended to introduce principles of caution, which he supposed would give satisfaction on that point. As far as was practicable, he would have the various business of this important branch of the Government divided and modified, so as to lull at least the jealousy expressed by the gentleman from Massachusetts; indeed, he supposed, with the assistance of the committee, it might be formed so as to give satisfaction. He had no doubt but that the offices might be so constituted as to restrain and check each other; and unless an unbounded combination took place, which he could by no means suppose was likely to be the case, that the public would be safe and secure under the administration. He would favor the arrangement mentioned by the worthy gentleman from South Carolina, (Mr. BALDWIN,) and after that was separated from the Secretary's duties, he believed the officer would find sufficient business to employ his time and talents in rendering essential services to his country. This arrangement he considered would answer most of the objections which had been urged. If a board is established, the independent officers of Comptroller and Auditor are unknown; you then give the aggregate of these powers to the board, the members of which are equal; therefore you give more power to each individual than is proposed to be trusted in the Secretary; and if apprehensions are to be entertained of a combination, they apply as forcibly in the case of two or three commissioners combining, as they do in the case of the Secretary, Comptroller, and other officers. If gentlemen permit these sentiments to have their full weight, and consider the advantages arising from energy, system, and responsibility, which were all in favor of his motion, he had no doubt of their according with him on this question. Mr. BOUDINOT considered the question to be, whether the department should be under the direction of one or more officers. He was against boards, because he was convinced by experience that they are liable to all the objections which gentlemen had stated. He wished the committee had it in their power to turn to the transactions of this department since the revolution, to examine the expenditures under former boards of treasury, and under the Superintendent of Finance; it would so confound them, that he was sure no gentleman would offer another argument in favor of boards. He was not acquainted with the management under the present board. He had not been in the habit of doing business with them. But between the administration of the former and the Superintendent of Finance, there was an intolerable comparison. He was far from being astonished at the jealousy and suspicion entertained of that valuable officer; he rather wondered that the clamor was not more loud and tremendous. He could not repeat all the causes there were for accusation against him, but surely they were not inconsiderable. He remembered one hundred and forty-six supernumerary officers were brushed off in one day, who had long been sucking the vital blood and spirit of the nation. Was it to be wondered at, if this swarm should raise a buzz about him? The reform which daily took place made him no inconsiderable number of enemies. The expenditures under the Board of Treasury had been enormous. They were curtailed in the quartermasters, commissaries of provision and military stores, in the hospital, and every great department established by Congress; so that, besides those who were offended by a removal, every one who was affected by this economy, or parsimony, if they will call it so, were incensed against him. It was impossible to gain friends among those people by a practice of this kind. He would state a circumstance which might give the committee some small idea of what the savings under the Superintendent were. The expenditure of hay at a certain post was one hundred and forty tons; such was the estimate laid before him; yet twelve tons carried the post through the year, and the supply was abundant, and the post was as fully and usefully occupied as it had ever been before. The question on the amendment proposed by Mr. GERRY was taken and lost; after which the resolutions respecting the Treasury and War Department, as proposed by Mr. MADISON, were both agreed to. Mr. VINING then proposed the establishment of the Domestic Department upon the same principles; but, on motion of Mr. BOUDINOT, the committee rose and reported the resolutions agreed to.--Adjourned. THURSDAY, May 21. _Executive Departments._ The House proceeded to consider the resolution reported yesterday from the Committee of the whole House on the state of the Union, and the same being amended to read as follows: _Resolved_, That it is the opinion of this committee that there ought to be established the following executive departments, viz: A Department of Foreign Affairs, at the head of which shall be an officer to be called Secretary to the United States for the Department of Foreign Affairs, removable by the President. A Treasury Department, at the head of which shall be an officer to be called Secretary to the United States for the Treasury Department, removable by the President. A Department of War, at the head of which shall be an officer to be called Secretary to the United States for the Department of War, removable by the President. _Resolved_, That this House doth concur with the committee in the said resolution; and that a committee, to consist of eleven members, be appointed to prepare and bring in a bill or bills pursuant thereto. The members elected were, Mr. BALDWIN, Mr. VINING, Mr. LIVERMORE, Mr. MADISON, Mr. BENSON, Mr. BURKE, Mr. FITZSIMONS, Mr. BOUDINOT, Mr. WADSWORTH, Mr. GERRY, and Mr. CADWALADER. FRIDAY, May 22. _Contested Election._[27] The House resumed the consideration of the report on Mr. SMITH'S case. After some desultory conversation on the recommitment and mode of proceeding, it was agreed to examine the evidence in favor of Mr. SMITH, the facts alleged by Doctor Ramsay, in proof that Mr. SMITH was not seven years a citizen of the United States, being admitted. Whereupon, it being moved and seconded, that the House do agree to the following resolution: _Resolved_, That it appears to this House, upon full and mature consideration, that the said WILLIAM SMITH had been seven years a citizen of the United States, at the time of his election. Mr. SMITH.--As the House are inclined to hear the observations I have to make, I shall begin with admitting the facts stated in the memorial of Doctor Ramsay, hoping the House will excuse the egotism into which I am unavoidably drawn. I was born in Charleston, South Carolina, of a family whose ancestors were among the first settlers of that colony, and was sent to England for my education when I was but twelve years of age. In 1774, I was sent to Geneva, to pursue my studies, where I resided until 1778. In November, that year, I went to Paris, where I resided upwards of two months in the character of an American gentleman. Immediately on my arrival there, I waited on Doctor Franklin, Mr. Adams, and Mr. A. Lee, the Commissioners from Congress to the court of France, as a citizen of America, and was received as such by them. In January, 1779, I left Paris for London, whither I went to procure the means of embarking for America, from the gentleman who had been appointed my guardian by my father when I was first sent to Europe in 1770, and from whom alone I had any hope of obtaining such means. But in this endeavor, I was disappointed, and remained some time in England, with the hope of receiving remittances from Charleston. Here again my expectation was defeated. The rapid depreciation of the continental money rendered the negotiation of money transactions extremely difficult, and thus I remained till the fall of Charleston. I took this opportunity of studying the law, but could not be called to the bar, because I had not taken the oath of allegiance to Great Britain, which is a necessary qualification. After the surrender of Charleston, the whole State of South Carolina fell into the hands of the enemy, and it was impossible at that time to return. No sooner, however, did I acquire the means, and an opportunity offered, than I prepared myself to go back to America. I quitted London for that purpose, in October or November, 1782, not in a vessel bound to Charleston, then a British garrison, and which I certainly should have done, had I considered myself a British subject, and which would have been most convenient, as there were vessels constantly going from London to Charleston; but I travelled to Ostend, and there embarked in a neutral vessel bound to St. Kitt's, from whence it was my intention to proceed to a Danish island, and thence to some American port in North Carolina or Georgia, from whence I could reach the American camp. In the beginning of January, 1783, I sailed from Ostend, but was detained a considerable time by contrary winds, and in the middle of the month of February, was shipwrecked on the coast of England, and was obliged to return to London in order to procure another passage. These circumstances unavoidably prevented my return to Charleston, until some time in November, 1783. On my arrival at Charleston, I was received by my countrymen as a citizen of the State of South Carolina, and elected by their free suffrage a member of the Legislature in November, 1784. In the August following I was chosen, by the Governor and Council, a member of the Privy Council, and this election was confirmed by the Legislature the October following. In September, the same year, I was elected one of the Wardens of the City of Charleston. In November, 1786, I was again elected into the Legislature; again in November, 1788; I was elected at the same time that I was elected to the House of Representatives of the United States, the September preceding having been chosen again a Warden of the city. After having stated these facts, he went on adverting to the laws referred to in the report of the committee, which, he said, he conceived to be applicable to the present case. In September, 1779, a question was discussed in the Legislature of South Carolina, respecting the young men who were sent abroad for their education, and it was determined that it was most for the interest of the State, that they should be allowed to continue in Europe till they were twenty-two years of age; after which the law provided they should be doubly taxed if they did not return. This law might fairly be supposed to recognize the citizenship of all the young men in a similar predicament with himself. It allowed them all to be absent until they were twenty-two years of age; but even after that period it did not deprive them of the right of citizenship; it only subjected them to the penalty of a double tax. This he contended was a sort of compact with him, that if he chose to be absent after that time, he should suffer a certain penalty, which, in its own nature, implied that his citizenship remained; but before he attained that age, South Carolina was in such a situation that her best friends were compelled to be absent, and take refuge in distant countries. It was not till some time after that the friends of the American cause began to assemble in that State; the absentee law, therefore, never operated on him, and he never was doubly taxed. In February, 1782, the Legislature met at Jacksonburg, and discriminated between friend and foe, between American and British subjects, by disposing of the estates of the latter, and banishing them; from an inspection of the law passed at that time, it would be evident in what light they viewed him. He had landed property in the State, but was himself in England; yet they did not attempt to confiscate his property, or subject him to an amercement. The absentee law was his safeguard, he had the permission of the State to be abroad. If the Legislature in 1782 recognized as citizens some of those persons whose estates were confiscated for adhering to Great Britain, and for being disaffected to America _a fortiori_, did it not recognize as a citizen one whose estate was not forfeited, who had not been deemed worthy of punishment, and who had been absent under the sanction of the law? By the constitution of South Carolina it appears, that no person was eligible to a seat in the Legislature until he had resided three years, nor to a seat in the Privy Council until he had resided five years in the State. He had a seat in both those bodies before he had resided two years in the State of South Carolina, and no objection was ever made on that score. He could not have been qualified for either, had not the people of South Carolina deemed his residence in that State, such a residence as gained him a qualification; or had they not supposed the qualification required in the constitution applied only to new comers and new citizens, for whom that residence was necessary to wean them from their local prejudices and national habits, and to attach them to the commonwealth. Had they not, in short, supposed him to have been a citizen during the revolution, and attached to his native State by every tie which could bind an individual to any country. Three years' residence was either not required of him, or his former residence was deemed within the meaning of the constitution. An act to confer the right of citizenship on aliens was passed March 26, 1784. For the purpose of possessing the subordinate rights of citizenship, such as an exemption from the alien duty, a residence of one year, and taking the oath of allegiance, was sufficient. To confer a right of voting at elections, a person must have been admitted a citizen two years prior to his voting; but for the higher privileges of a citizen, being eligible to offices of trust, to a seat in the Legislature and Privy Council, the alien must have been naturalized by law. Now, in November, 1784, he was elected into the Legislature, and took his seat without objection in January, 1785, and was elected into the Privy Council, October, 1785; all without being naturalized by law. In October, 1785, when he was elected to the Council, his election was opposed, but the objection now brought forward was not then made; and the memorialist himself, who was a member of the Legislature, voted in favor of the choice; though, unquestionably, unless he was considered by the Legislature as a citizen before he returned to Charleston, nothing had afterwards occurred to make him so, and the alien act of 1784 positively required a naturalization by act of Assembly to give him a qualification. The constitution of South Carolina is silent as to citizenship, but allowed any person to vote at elections who had resided a year in the State, and paid a certain tax; to be a member of the Assembly he must have resided three, and to be a Privy Councillor five years previous to his election, but nothing was said about citizenship. The act of 1784, however, expressly defined who should and who should not be deemed citizens; and, consequently, all persons who did not become citizens must have been held to be aliens, and considered so, till they had conformed to the alien act of 1784. Now, as he was admitted to offices of trust, to which aliens were not admissible, and as he was admitted to them without having the rights of citizenship conferred upon him, in pursuance of that act, it followed clearly, that the people of South Carolina and the Legislature acknowledged him to be a citizen by virtue of the revolution. He went on to observe, that, from the doctrine laid down by the memorialist, it was difficult to ascertain when he did become a citizen of South Carolina. When he was admitted to the bar in 1784, he did no act which made him a citizen, the bare act of taking an oath of qualification to an office could not convert an alien to a citizen. The constitution seemed to imply a mere residence of a year, by giving a right to vote, gave a right of citizenship; if that were the case, and if his residence prior to the revolution was considered such a residence as the constitution required, then he was a citizen, by virtue of the constitution, after having resided a year in Carolina. Now, it was clear, his residence prior to the war was deemed such a residence as the constitution required; because he was admitted to vote and admitted to a seat in the Legislature and Council by right of such residence, not having had the requisite residence since the war, and yet being deemed qualified. If, therefore, that part of the constitution which gave a right of voting, in consequence of a year's residence and paying a certain tax, virtually conferred citizenship, by giving a right to vote, (and it appeared absurd that a right to vote should be given to persons not citizens,) and if, also, his residence, prior to the revolution, was deemed a sufficient residence, then he was a citizen by virtue of the constitution. The points that seemed most to be relied upon by the memorialist were: 1st. That residence was actually necessary to confer citizenship, or, in other words, that a person could not become a citizen of a country, till he has resided in it. 2d. That a person could not become a citizen till he was of age to choose his country. In answer to the first, he denied that residence in the country was absolutely necessary. Was it to be supposed, he asked, that when a man sent his son into another country for his education and improvement, the son was thereby to lose any political benefits which might, during such temporary absence, accrue to his country? If his father had lived a few years longer, would there have arisen any question on this subject? Would he not, though absent, have acquired, according to the petitioner's own positions, a right of citizenship? And should his death, at such an early period, not be deemed a sufficient misfortune for him, without using that as a pretence for making him an alien? Those who represented him in Carolina as his guardians, who were _in loco parentis_, were residents in Carolina at the declaration of independence. His property was in Carolina, his money in the treasury, assisting to carry on the war. The declaration of independence affected him as much, though at Geneva, as it did those in Carolina; his happiness, that of his dearest connections, his property, were deeply interested in it: his fate was so closely connected with that of Carolina, that any revolution in Carolina was a revolution to him. Though a minor, as soon as he heard of the independence of America, he considered himself an American citizen. If a person could not become a citizen of a country without residing in it, what should be said of those gentlemen who had been in Europe during the war, and were now in high office in America? Several of them went to Europe before the war, were there at the declaration of independence, and did not return to America till after the war, or about the close of it. When did their citizenship commence? According to the petitioner, they could not become citizens of America until they returned to America, and took an oath of allegiance to the States; but Congress employed them in offices of great confidence, before they had returned to America, or taken such oath. Congress, therefore, considered them citizens, by virtue of the revolution. It had been said, that Carolina had called on her young men to come to her assistance. This was not the true state of the case. Carolina thought that her young men who were abroad for their education, should not be taken from their studies till they were twenty-two years of age, and doubly taxed them after that. His guardian wrote to him that he had permission of the Legislature to be absent till he was twenty-two, and that he should be doubly taxed after that age. It has been also said, that Carolina tendered an oath, to discover who were friends, and who were enemies. In March, 1778, the Legislature of South Carolina passed an act to oblige every free male inhabitant of that State, above sixteen years of age, to take an oath of allegiance to the State. As there were notoriously many persons then in the State who were inimical to its liberties, such a step was necessary to give a reasonable cause for obliging them to quit the country. With that view, the oath was generally tendered only to those who were suspected or known not to be friendly to the cause. He had been informed by several persons, who were zealous partisans, and then in Carolina, that they had never taken any oath of allegiance, and that it had not been required of them on this occasion. The act directed, that those who did not take it, should quit the State; and, if they returned, should be dealt with as traitors, and suffer death. Let us examine whether this act can, in any respect, apply to the present question. 1st. It particularly mentioned "inhabitants of the State of South Carolina." It could not, therefore, apply to persons who were abroad. 2dly. It directed that the oath should be taken before a justice of peace in Carolina; this could not, therefore, extend to a person then at Geneva. 3dly. It was directed to be taken in one month after the passing of the act; and it was not possible that I should hear of the existence of such an act in less than three months. 4thly. It was directed, that if the persons refused to take it, they should quit the State; but I was already out of it. 5thly. Those who refused to take it, were prevented from acquiring or conveying property, and rendered incapable of exercising any profession. But on my return to Carolina, I took peaceable possession of my estate, part of which consisted of lands and houses, which had been mine since the year 1770; and I was immediately admitted to the exercise of the profession for which I was educated. 6thly. The act directed, that if any person returned to Carolina, after having refused to take the oath, he should be put to death as a traitor; and, yet, on my return, never having taken the oath, I was elected a member of the Legislature, and a Privy Councillor; and, instead of being deemed a criminal myself, I acted as Attorney General to punish others; and yet the petitioner, in one of his late publications, lays great stress on the applicability of this act. 2dly. There could be no doubt that a minor might be a citizen, from the very words of the constitution, which admitted a person to be a member of the House of Representatives at twenty-five, and yet required a citizenship of seven years. This was of itself a sufficient refutation of every thing contained in the petition on this head. The constitution acknowledged that a person might be a citizen at eighteen; if so, there was no reason why a person might not be one at sixteen or fourteen. Mr. LEE said, the committee had now to determine, whether Mr. SMITH was a citizen of South Carolina during his absence from home, or not. If the laws of that State recognized him as such, the question was determined, because this House could not dispute a fact of that kind. From the reference that has been made to the constitution and laws of South Carolina, and the circumstances which took place under them, with respect to Mr. SMITH, it was convincing that he was acknowledged there to be a citizen in consequence of the revolution. Mr. MADISON.--I think the merit of the question is now to be decided, whether the gentleman is eligible to a seat in this House or not; but it will depend on the decision of a previous question, whether he has been seven years a citizen of the United States or not. From an attention to the facts which have been adduced, and from a consideration of the principles established by the revolution, the conclusion I have drawn is, that Mr. SMITH was, on the declaration of independence, a citizen of the United States; and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this House. I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case. It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principle before we proceed to the presumptive proof arising from public measures under the law, which tend to give support to the inference drawn from such principles. It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States; it will, therefore, be unnecessary to investigate any other. Mr. SMITH founds his claim upon his birthright; his ancestors were among the first settlers of that colony. It is well known to many gentlemen on this floor, as well as to the public, that the petitioner is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet I cannot but think he has erred in one of the principles upon which he grounds his charge. He supposes, when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the king of that nation, unless, by some adventitious circumstance, the allegiance was transferred to one of the United States. I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the sovereign established by that society. This distinction will be illustrated by the doctrine established by the laws of Great Britain, which were the laws of this country before the revolution. The sovereign cannot make a citizen by any act of his own; he can confer denizenship; but this does not make a man either a citizen or subject. In order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation; it is necessary that a national act should pass to admit an individual member. In order to become a member of the British Empire, where birth has not endowed the person with that privilege, he must be naturalized by an act of Parliament. What was the situation of the people of America, when the dissolution of their allegiance took place by the declaration of independence? I conceive that every person who owed this primary allegiance to the particular community in which he was born, retained his right of birth, as a member of a new community; that he was consequently absolved from the secondary allegiance he had owed to the British sovereign. If he were not a minor, he became bound, by his own act, as a member of the society who separated with him from a submission to a foreign country. If he were a minor, his consent was involved in the decision of that society to which he belonged by the ties of nature. What was the allegiance, as a citizen of South Carolina, he owed to the King of Great Britain? He owed his allegiance to him as a king of that society to which, as a society, he owed his primary allegiance. When that society separated from Great Britain, he was bound by that act, and his allegiance transferred to that society, or the sovereign which that society should set up; because it was through his membership of the society of South Carolina that he owed allegiance to Great Britain. This reasoning will hold good, unless it is supposed that the separation which took place between these States and Great Britain, not only dissolved the union between those countries, but dissolved the union among the citizens themselves: that the original compact, which made them altogether one society, being dissolved, they could not fall into pieces, each part making an independent society; but must individually revert into a state of nature; but I do not conceive that this was, of necessity, to be the case; I believe such a revolution did not absolutely take place. But in supposing that this was the case, lies the error of the memorialist. I conceive the colonies remained as a political society, detached from their former connection with another society, without dissolving into a state of nature; but capable of substituting a new form of government in the place of the old one, which they had, for special considerations, abolished. Suppose the State of South Carolina should think proper to revise her constitution, abolish that which now exists, and establish another form of government: surely this would not dissolve the social compact. It would not throw them back into a state of nature. It would not dissolve the union between the individual members of that society. It would leave them in perfect society, changing only the mode of action, which they are always at liberty to arrange. Mr. SMITH being then, at the declaration of independence, a minor, but being a member of that particular society, he became, in my opinion, bound by the decision of the society, with respect to the question of independence and change of Government; and if afterwards he had taken part with the enemies of his country, he would have been guilty of treason against that Government to which he owed allegiance, and would have been liable to be prosecuted as a traitor. So far as we can judge by the laws of Carolina, and the practice and decision of that State, the principles I have adduced are supported; and I must own, that I feel myself at liberty to decide, that Mr. SMITH was a citizen at the declaration of independence, a citizen at the time of his election, and, consequently, entitled to a seat in this Legislature. Mr. JACKSON.--I differ widely from the gentleman from Virginia (Mr. MADISON) on the subject of allegiance and the social compact, and hold the principles advanced by him exceedingly dangerous to many of the States, and in particular to the one I have the honor to represent. The situation of America, at the time of the revolution, was not properly to be compared to a people altering their mode or form of government. Nor were there two allegiances due, one to the community here, another to that of Great Britain. We were all on a footing; and I contend the principle is right, in some degree, of a total reversion to a state of nature amongst individuals, and to a mere parental or patriarchal authority, where the heads had families dependent on them; the former, or individual pursued that line which appeared right in his own eyes, and the cause which he thought just; and, in the latter case, the children followed the will of the father, who chose for them, as the person who brought them into life, and whose fortunes they were to inherit. I conceive the whole allegiance or compact to have been dissolved. Many of the States were a considerable period without establishing constitutions or forms of government, and during that period we were in a little better state than that of nature; and then it was that every man made his election for an original compact, or tie, which, by his own act, or that of his father for him, he became bound to submit to. And what, sir, would otherwise be the result? And if the gentleman's doctrines of birth were to be supported, those minors, who, with British bayonets, have plundered and ravaged, nay, cruelly butchered their more virtuous neighbors--the sons of the most inveterate traitors, whose names deservedly sounded in every bill of confiscation; and the minors, sons of those who sheltered themselves under the shade of the British King, and supported his armies, if not with arms, with the resources of war, until the hour of danger was over--those, I say, after the blood of thousands has been spilt in the establishment of our government, can now come forward and sneer at the foolish patriots who endured every hardship of a seven years' war, to secure to them the freedom and property they had no hand in defending. Sir, did we fight for this? Was it for this the soldier watched his numerous nights, and braved the inclemency of the seasons? Will he submit, after having gained his point at the expense of property and the loss of constitution, to have those sentiments established? If he will, he has fought to little purpose indeed. Sir, I again contend, that when the revolution came on we were all alike with respect to allegiances, and all under the same social tie. An Englishman born did not conceive himself more liable to be condemned for treason than an American, had the enemy succeeded; nor would there have been any distinction in the laws on coming to a trial. But, sir, how should this primary allegiance be known to belong to the less, or American community, where the majority did not prevail. In Georgia, the majority were opposed to American measures; agreeably to the gentleman's reasoning, the minors must have been all on the British side; and yet many of them, on arriving to years of discretion, behaved well and valiantly with us. To corroborate this, sir, I will remark, that, for a considerable period, we had no general or federal government, or form of constitution, and yet were in arms. I would ask what state we were in then? Neighbor was against neighbor, and brother against brother. But, sir, the gentleman says the hardened minor will not return. Sir, experience has proved the contrary. The Middle and Eastern States, except Pennsylvania, New Jersey, and New York, never had the enemy long with them; there was not the same trial of men, and they knew not the audacity of those villains. After having received their equivalent for, in many cases, feigned losses, from the British crown, they are daily returning and pushing into office. It is necessary we should guard against them. Britain, although humiliated, yet has a longing eye upon this country; she has yet posts in it. Although it is improbable that so many of these people will get into Congress as to form a corrupt majority, yet they have ambition and resentment enough to attempt it. At this moment, sir, in Georgia, are some of the most daring, bringing ejectments for estates which their fathers had deservedly forfeited, although themselves had imbrued their hands in the blood of their fellow-citizens. Now, to the present case: Highly as I regard the gentleman (Mr. SMITH) as a valuable member, and esteem his abilities, I can only form my opinion on the leave given him by the State to be absent. If that principle is introduced into the resolution, I will vote in favor of Mr. SMITH'S eligibility; but if not, I must decline voting. Which he accordingly did when the question was put. Mr. TUCKER hoped that the yeas and nays would be taken on this question, not because he had any doubt in his own mind of Mr. SMITH'S right to a seat, but because he had been solicited by Dr. Ramsay to have the yeas and nays taken. The yeas and nays were taken as follows: YEAS.--Messrs. Baldwin, Benson, Boudinot, Cadwalader, Carroll, Clymer, Coles, Contee, Fitzsimons, Floyd, Gilman, Goodhue, Heister, Huntington, Lawrence, Lee, Leonard, Livermore, Madison, Moore, Muhlenberg, Page, Van Rensselaer, Seney, Schureman, Scott, Sinnickson, Smith, (of Maryland,) Sturgis, Sylvester, Thatcher, Trumbull, Tucker, Vining, White, and Wynkoop. Jonathan Grout voted in the negative. Adjourned until Monday. THURSDAY, May 28. _Western Lands._ The House, on motion of Mr. SCOTT, went into a Committee of the Whole on the State of the Union, for the purpose of considering certain resolutions he had prepared respecting the disposal of the land in the Western Territory. Mr. TRUMBULL in the chair. Mr. SCOTT presumed there was little need of argument to prove to the Committee the necessity of taking speedy measures with respect to the unsettled lands in the Western Territory. The dissolution of the Board of Treasury, and the death of the late Geographer of the United States, are adventitious circumstances, which tend to increase the necessity. Gentlemen are acquainted with the number of sales which have been made to some of the citizens of the United States; they consequently know that the United States are under an obligation to complete the surveys of those lands which they have made sale of. They know, also, that until this is done, they cannot receive a farthing of the millions of dollars due on those contracts; they will not only be unable to receive the principal, but will be paying interest for the same. Besides this, there are other considerations for putting the business on a new footing. The mode hitherto pursued of selling lands has been very expensive to the United States. Perhaps, on inquiry, we shall find, that the specie it has cost us in getting the land surveyed and sales completed, would have purchased as many certificates as we get for the sale of the land. The lands are also proposed to be sold in too great quantities. It is very difficult to form a company for the purchase of a million acres. It ought to be sold in small quantities, to make the sales more certain and numerous; and, consequently, increase the public income. On this principle, it will be well to open a land office, and grant the soil in such quantities as may suit the applications. By this means more may be expected for the purchase, than when it is struck off, at a wholesale price, by the million acres; and in this way the land office will be conducted without expense, which will be fixed on the purchaser, so that the whole money the lands may bring will come into the treasury without deduction. There are other considerations why a land office should be opened for the sale of that territory in the way just mentioned. There are, at this moment, a great number of people on the ground, who are willing to acquire by purchase a right to the soil they are seated upon. Allured by its fertility, the agreeableness of the climate, and the prospect of future ease to themselves and families, they would not seek a change. Kentucky, already full, at least there are no more valuable lands to be got there with a clear title, can receive no more emigrants. They, therefore, turn their wishful eyes upon the lands of the Union. They hope to get them of Congress upon as good terms as they can procure them of the speculators. What will these men think, who have placed themselves on a vacant spot, anxiously waiting its disposition by the Government, to find their pre-emption right engrossed by the purchaser of a million of acres? Will they expose themselves to be preyed upon by these men? They might submit to this, but they have other offers. There are seven thousand souls waiting for lands; they will have them here or elsewhere; but there is some danger, if they cannot be accommodated within the boundaries of the United States, they will do one of two things: either move into the Spanish territory, where they are not altogether uninvited, and become an accession of power to a foreign nation, forming to us a dangerous frontier; or they will take this course, move on the United States territory, and take possession without your leave. What then will be the case? They will not pay you money. Will you then raise a force to drive them off? That has been tried: troops were raised, and sent under General Harmer, to effect that purpose. They burnt the cabins, broke down the fences, and tore up the potato patches; but three hours after the troops were gone, these people returned again, repaired the damage, and are now settled upon the lands in open defiance of the authority of the Union. But, nevertheless, they are willing to pay an equitable price for those lands; and if they may be indulged with a pre-emption to the purchase, no men will be better friends to the Government. They went on the ground with an intention of purchasing, and are kept there by a hope that the Government will see their interest, and dispose of the land upon reasonable terms. But if you do not listen to their request, if you neglect or despise their offers, and they prove too weak to resist the omnipotent arm of Government, they will have recourse to a neighboring Power for protection. Hopes of that protection are now held out to them; it is my duty to inform you of the fact. They will be led to think their interest is separate from yours on the Atlantic shores. It will take prudent management to prevent the fatal effects of a commotion in that country. One of the most unhappy things we could do, would be to refuse selling those lands in less quantities than by the million of acres: it would certainly be a cause of disgust, if not of separation. If the object was to prevent the settlement of the country, it would be another thing; but that cannot be accomplished, it is not in the power of any force on earth to prevent the increase of the population now begun; it is therefore much better that we should incline them to friendship, than oblige them to become our enemies. The emigrants who reach the Western country will not stop until they find a place where they can securely seat themselves. Your lands first offer: their fertility and agreeableness will tempt them to pitch there; but to secure them, they must have a well-grounded hope that the lands they cultivate may become their own. To encourage this, you must open that territory to them, and let them have lands for pay. You must go further, you must open the land office in that country, because it will be impossible for the indigent persons to travel for an office-right. You can then establish a government among them, and derive advantages from them which are now totally lost. They wish for your government and laws, and will be gratified with the indulgence; but they wish also to acquire property under them; they wish for your lands, and what good reason can be offered to warrant a denial? If they cannot get your land, they must go further, and obtain it of foreigners, who are desirous of having them at any rate, who will give them lands without pay. These observations are sufficient, no doubt, to evince the necessity of doing something with respect to the Western territory, and something different from what has hitherto been done. In order that the Committee may have a full view of my ideas, I will read the plan I have in my hand, upon which a law may be founded. He here read a previous resolution, to be followed by the plan, which was to this effect: _Resolved_, That it is the opinion of this committee, that an act of Congress ought to pass for establishing and regulating a land-office, for the sale of the vacant and unappropriated land in the Western territory. [Here, by way of separate resolutions, followed in detail the constituent parts of this office, and the routine in which the business should be conducted, directing the expense of the office to be supported by the fees payable before the warrants and patents were delivered.] Mr. CLYMER did not believe the committee were prepared for a decision at this time. He considered the subject to be as intricate and difficult as it was interesting; and therefore hoped full time would be given for investigation. Many persons had purchased large quantities of lands of the late Congress, with a view to sell them out in small lots, to accommodate the people who are inclined to settle upon them. If Congress now open a land office for the sale of small quantities, it will no doubt overcast the prospect of advantage which induced the former, and may induce future purchasers to apply for large grants. These observations, and others which would readily occur to every gentleman, would satisfy the committee that they ought not to precipitate the business. For this reason, he moved the rising of the committee. Mr. MADISON had no objection to the rising of the committee, as the means of obtaining information; but he thought the business deserving of the earliest attention. The clear and full manner in which the gentleman from Pennsylvania had opened the subject to the view of the committee, left no doubt on his mind of the propriety of taking some early measures to accomplish the business in the manner suggested by that gentleman. The facts and intelligence mentioned were too important to be passed lightly over. He should, for the present, agree to rise, but hoped the subject would be resumed in the House. The question was taken on the first resolution moved by Mr. SCOTT, and passed in the affirmative; the others remaining on the table. The committee then rose and reported progress. FRIDAY, June 5. _Admission of Rhode Island into the Union._ Mr. BENSON presented for consideration, the resolution which he yesterday gave notice of his intention of introducing in relation to the admission of Rhode Island into the Union, and moved that the House immediately go into a Committee of the Whole on the state of the Union, for the purpose of discussing his proposition. The resolution is in the following words: The Congress of the United States do resolve and declare it to be their most earnest desire, that the Legislature of the State of Rhode Island and Providence Plantations, do recommend to the people of that State to choose delegates to meet in convention and to whom the constitution of the United States is to be submitted, conformably to the unanimous resolution of the United States in Congress assembled, of the 28th of September, 1787. Mr. PAGE.--I think of Rhode Island as the worthy gentleman from New York does; but, as a member of Congress, I doubt the propriety of this body interfering in the business. If I put myself, for a moment, into the situation of a citizen of a State that has refused to accede to the constitution of the United States, I must admit that I should watch your actions with a jealous eye; I should be apprehensive of undue influence, if I were to see you throw your weight into the scale. But what occasion is there for adopting such a resolution? Are gentlemen afraid to leave them to their own unbiased judgment? For my part I am not: it will demonstrate the goodness of the constitution, if it be adopted upon mature consideration, without any aid but its own intrinsic value. As to amendments, when we come to consider of them, I dare say they will be such as to make the constitution more agreeable; but, for the present, I think it improper to have any thing to do with the gentleman's motion; I hope he may be prevailed upon to withdraw it; he has done his duty by bringing it forward; but if it does not meet the approbation of the House, it will be a useless waste of time to give it any further discussion. The gentleman has shown sufficiently his attachment to the Federal Government, by the earnestness he shows to have it adopted throughout the United States. But, in addition to this, let him consider where such measures may lead us. Because the Legislature of Rhode Island have neglected or refused to submit the consideration of the constitution to a convention, we are to recommend it, and express a most earnest desire that they will comply. But suppose they decline doing what you require, what is next to be done? I hope gentlemen will hesitate before they go any further. I think we should be employed more in the line of our duty, by attending to the interests of our constituents, and completing the organization of a Government they ordered, than to spend our time about business which is not within our powers. Why should we interfere with the concerns of our sister States who have not yet joined the new Government? I trust the gentleman will see the impropriety of his motion, and agree to withdraw it. Mr. SMITH, (of South Carolina.)--I think we ought to go into committee, and hear what the gentleman has to say on the subject. Though I must acknowledge I am at present against the adoption of the resolution he has proposed; yet it is possible, when he has stated his reasons, and pointed out the necessity of it, that I may alter my opinion; but I wonder why the gentleman has omitted North Carolina. Mr. SHERMAN.--I think Rhode Island stands in a different situation from North Carolina. When this constitution was formed in the convention, North Carolina was represented there; she, as well as the adopting States, submitted that instrument to a convention of the people; but not having adopted it, she has again called a convention, and is proceeding to reconsider it as fast as convenient; so that such a request as is now proposed would be unnecessary with respect to them. As Rhode Island did not send members to the first convention, there was a delicacy in transmitting the proceedings to them, and Congress could not, perhaps, apply to them with the same propriety as to another. But all we are now to consider, I believe, is, that we invite the State of Rhode Island to join our confederacy; what will be the effect of such a measure we cannot tell till we try it. Mr. MADISON.--I believe, Mr. Speaker, there are cases in which it is prudent to avoid coming to a decision at all, and cases where it is desirable to evade debate; if there were not cases of this kind, it would be unnecessary to guard our discussions with the previous question.[28] My idea on the subject now before the House is, that it would be improper in this body to expose themselves to have such a proposition rejected by the Legislature of the State of Rhode Island. It would likewise be improper to express a desire on an occasion where a free agency ought to be employed, which would carry with it all the force of a command. How far this is contemplated on the present occasion, I cannot tell; but I heartily wish that as little may be said about it as possible. I conceive this to be one of the cases to which the previous question is applicable; and, if the gentleman means to call the House to a direct decision on this motion, I shall step between, and interpose the previous question. Mr. AMES.--I am against the previous question being taken, because I wish the House to consider the motion made by the gentleman from New York; it is admitted to be a question of considerable importance; if it is, it ought to be considered; otherwise, we are shutting the door on information, and putting it out of our power to ascertain the propriety or impropriety of the motion. I should be glad to know if any gentleman contemplates the State of Rhode Island dissevered from the Union; a maritime State, situated in the most convenient manner for the purpose of smuggling, and defrauding our revenue. Surely, a moment's reflection will induce the House to take measures to secure this object. Do gentlemen imagine that State will join the Union? If they do, what is the injury arising from the adoption of the resolution intended to be submitted to the committee? Is there any impropriety in desiring them to consider a question which they have not yet decided? It has been suggested by an honorable gentleman, that this desire will operate as a demand. If a wish of Congress can bring them into the Union, why should we decline to express such a wish? The previous question being insisted upon, was put--"Shall the main question be now put?" and it was determined in the negative. Adjourned. MONDAY, June 8. MICHAEL JENIFER STONE, from Maryland, appeared, and took his seat. TUESDAY, June 16. _Department of Foreign Affairs._ The House then resolved itself into a Committee of the Whole on the bill for establishing an executive department, to be denominated the Department of Foreign Affairs. Mr. TRUMBULL in the chair. The first clause, after recapitulating the title of the officer and his duties, had these words: "To be removable from office by the President of the United States." Mr. WHITE.--The constitution gives the President the power of nominating, and, by and with the advice and consent of the Senate, appointing to office. As I conceive the power of appointing and dismissing to be united in their natures, and a principle that never was called in question in any Government, I am averse to that part of the clause which subjects the Secretary of Foreign Affairs to be removed at the will of the President. In the constitution, special provision is made for the removal of the judges; that I acknowledge to be a deviation from my principle; but as it is a constitutional provision, it is to be admitted. In all cases not otherwise provided for in the constitution, I take it, that the principle I have laid down is the governing one. Now the constitution has associated the Senate with the President in appointing the heads of departments. The Secretary of Foreign Affairs is the head of a department; for the words of the law declare, that there shall be a department established, at the head of which shall be an officer to be so denominated. If, then, the Senate are associated with the President in the appointment, they ought also to be associated in the dismission from office. Upon the justness of this construction, I take the liberty of reviving the motion made in the Committee of the Whole, for striking out these words: "to be removable from office by the President of the United States." Mr. SMITH, (of South Carolina.)--The gentleman has anticipated me in his motion; I am clearly in sentiment with him that the words ought to go out. It is in the recollection of the committee, that when the subject was last before us, this power was excepted to; and although the words were then allowed to stand, it was generally understood that it should be further debated. I then was opposed to giving this power to the President, and am still of opinion that we ought not to make this declaration, even if he has the power by the constitution. I would premise that one of these two ideas is just: either that the constitution has given the President the power of removal, and therefore it is nugatory to make the declaration here; or it has not given the power to him, and therefore it is improper to make an attempt to confer it upon him. If it is not given to him by the constitution, but belongs conjointly to the President and Senate, we have no right to deprive the Senate of their constitutional prerogative; and it has been the opinion of sensible men that the power was lodged in this manner. A publication of no inconsiderable eminence in the class of political writings on the constitution, has advanced this sentiment. The author, or authors, (for I have understood it to be the production of two gentlemen of great information,) of the work published under the signature of _Publius_, has these words: "It has been mentioned as one of the advantages to be expected from the co-operation of the Senate in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the Government, as might be expected if he were the sole disposer of offices. Where a man in any station has given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that the discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body, which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the Government." Here this author lays it down, that there can be no doubt of the power of the Senate in the business of removal. Let this be as it may, I am clear that the President alone has not the power. Examine the constitution; the powers of the several branches of Government are there defined; the President has particular powers assigned him; the Judiciary have in like manner powers assigned them; but you will find no such power as removing from office given to the President. I call upon gentlemen to show me where it is said that the President shall remove from office. I know they cannot do it. Now, I infer from this, that, as the constitution has not given the President the power of removability, it meant that he should not have that power; and this inference is supported by that clause in the constitution which provides that all civil officers of the United States shall be removed from office on impeachment for, and on conviction of treason, bribery, or other high crimes and misdemeanors. Here is a particular mode described for removing; and if there is no other mode directed, I contend that the constitution contemplated only this mode. I imagine, sir, we are declaring a power in the President which may hereafter be greatly abused; for we are not always to expect a Chief Magistrate in whom such entire confidence can be placed as in the present. Perhaps gentlemen are so much dazzled with the splendor of the virtues of the present President, as not to be able to see into futurity. The framers of the constitution did not confine their views to the first person who was looked up to to fill the Presidential chair. If they had, they might have omitted those checks and guards with which the powers of the Executive are surrounded. They knew, from the course of human events, that they could not expect to be so highly favored of heaven as to have the blessing of his administration more than seven or fourteen years; after which, they supposed a man might get into power, who, it was possible, might misbehave. We ought to follow their example, and contemplate this power in the hands of an ambitious man, who might apply it to dangerous purposes. If we give this power to the President, he may, from caprice, remove the most worthy men from office. His will and pleasure will be the slight tenure by which an office is to be held, and of consequence you render the officer the mere state-dependant, the abject slave of a person who may be disposed to abuse the confidence his fellow-citizens have placed in him. Mr. HUNTINGTON.--I think the clause ought not to stand. It was well observed that the constitution was silent respecting the removal, otherwise than by impeachment. I would likewise add, that it mentions no other cause of removal than treason, bribery, or other high crimes and misdemeanors. It does not, I apprehend, extend to cases of infirmity or incapacity. Indeed, it appears hard to me, that after an officer has become old in an honorable service, he should be impeached for this infirmity. The constitution, I think, must be the only rule to guide us on this occasion; as it is silent with respect to the removal, Congress ought to say nothing about it, because it implies that we have a right to bestow it, and I believe this power is not to be found among the enumerated powers delegated by the constitution to Congress. Mr. SEDGWICK.--I wish the words to be struck out, because I conceive them to be unnecessary in this place. I do conceive, Mr. Speaker, that this officer will be the mere creature of the law; and that very little need be said to prove to you that of necessity this ought to be the case. I apprehend, likewise, that it requires but a small share of abilities to point out certain causes for which a person ought to be removed from office, without being guilty of treason, bribery, or malfeasance; and the nature of things demands that it should be so. Suppose, sir, a man becomes insane by the visitation of God, and is likely to ruin our affairs, are the hands of Government to be confined from warding off the evil? Suppose a person in office, not possessing the talents he was judged to have at the time of the appointment, is the error not to be corrected? Suppose he acquires vicious habits, an incurable indolence, or total neglect of the duties of his office, which forebode mischief to the public welfare, is there no way to arrest the threatened danger? Suppose he becomes odious and unpopular by reason of the measures which he pursues, (and this he may do without committing any positive offence against the law,) must he preserve his office in despite of the public will? Suppose him grasping at his own aggrandizement, and the elevation of his connections, by every means short of the treason defined by the constitution, hurrying your affairs to the precipice of destruction, endangering your domestic tranquillity, plundering you of the means of defence, by alienating the affections of your allies, and promoting the spirit of discord; is there no way suddenly to seize the worthless wretch, and hurl him from the pinnacle of power? Must the tardy, tedious, desultory road, by way of impeachment, be travelled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the Government? Sir, the nature of things, the great objects of society, the express objects of this constitution, require that this thing should be otherwise. Well, sir, this is admitted by gentlemen; but they say the Senate is to be united with the President in the exercise of this power. I hope, sir, that is not the case; because it would involve us in the most serious difficulty. Suppose a discovery of any of those events which I have just enumerated were to take place when the Senate is not in session, how is the remedy to be applied? This is a serious consideration, and the evil could be avoided no other way than by the Senate's sitting always. Surely no gentleman of this House contemplates the necessity of incurring such an expense. I am sure it will be very objectionable to our constituents; and yet this must be done, or the public interest be endangered by keeping an unworthy officer in place until that body shall be assembled from the extremes of the Union. It has been said that there is a danger of this power being abused if exercised by one man. Certainly the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impressions and opinions. It appears to me that such a body is more likely to misuse this power than the man whom the united voice of America calls to the Presidential chair. As the nature of the Government requires the power of removal, I think it is to be exercised in this way by a hand capable of exerting itself with effect, and, the power must be conferred upon the President by the constitution, as the executive officer of the Government. Mr. MADISON.--If the construction of the constitution is to be left to its natural course with respect to the executive powers of this Government, I own that the insertion of this sentiment in law may not be of material importance, though, if it is nothing more than a mere declaration of a clear grant made by the constitution, it can do no harm; but if it relates to a doubtful part of the constitution, I suppose an exposition of the constitution may come with as much propriety from the Legislature, as any other department of the Government. If the power naturally belongs to the Government, and the constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the Legislature, and the question will depend upon its own merits. I am clearly of opinion with the gentleman from South Carolina, (Mr. SMITH,) that we ought in this, and every other case, to adhere to the constitution, so far as it will serve as a guide to us, and that we ought not to be swayed in our decisions by the splendor of the character of the present Chief Magistrate, but to consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the chair. I believe the power here declared is a high one, and, in some respects, a dangerous one; but, in order to come to a right decision on this point, we must consider both sides of the question: the possible abuses which may spring from the single will of the First Magistrate, and the abuse which may spring from the combined will of the Executive and the Senatorial disqualification. When we consider that the First Magistrate is to be appointed at present by the suffrages of three millions of people, and in all human probability in a few years' time by double that number, it is not to be presumed that a vicious or bad character will be selected. If the Government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the State, I think it may with truth be said to be the case under the constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate that the instances will be very rare in which an unworthy man will receive that mark of the public confidence which is required to designate the President of the United States. Where the people are disposed to give so great an elevation to one of their fellow-citizens, I own that I am not afraid to place my confidence in him, especially when I know he is impeachable for any crime or misdemeanor before the Senate, at all times; and that, at all events, he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree, perhaps, a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be. Mr. VINING.--I hoped, Mr. Chairman, after the discussion this subject had received on a former occasion, that it would have been unnecessary to re-examine it. The arguments against the clause are reiterated: but, I trust, without a chance of success. They were fully answered before; and I expect the impressions made at that time are not already effaced. The House, as well as the Committee of the Whole, have determined that those words shall be inserted in the bill; the special committee could therefore do no less than place them where they are; a deference is due to the decision of the House. The House has determined to make a declaration of their construction of the constitution. I am perfectly in sentiment with the majority on this occasion; and contend, that if this power is not in the President, it is not vested in any body whatever. It cannot be within the legislative power of the Senate, because it is of an adverse nature; it cannot be within the executive power of the Senate, because they possess none but what is expressly granted by the constitution. If gentlemen will point out where the constitution confers this power upon the Senate, I will read my recantation, and subscribe to the justness of their doctrine. I am not satisfied that removability shall be acquired only by impeachment. Were the advocates of this doctrine aware of its consequences, when they advanced it? The Senate has the sole power of trying impeachments; the President is here out of the question. If no officer can be constitutionally removed but by impeachment, it applies to subordinate officers as well as heads of departments. For the constitution only gives power to Congress to establish officers by law, and vests the appointment in the President. If these officers are not removable but by impeachment, what is to become of our affairs, when any of the accidents occur which were enumerated by the gentleman from Massachusetts (Mr. SEDGWICK)? Are we to take the circuitous route of impeachment? The dilatory and inefficient process by that mode, will not apply the remedy to the evil till it is too late to be of advantage. Experience has fixed an eternal stigma upon the system of impeachment; witness the case I mentioned, the other day, of Warren Hastings before the British Lords; what delays and uncertainty with the forms of trial, details of evidence, arguments of counsel, and deliberate decision! I ask gentlemen, can there be a greater evil than this in any Government? Why, then, will gentlemen advocate a doctrine so obnoxious to the principles of the constitution, when a more favorable construction is at hand? Mr. WHITE.--Mention has been made of impeachments, as the only mode of removing an officer. I will explain my ideas on this point, in order that the committee may be masters of my particular objections to the clause. I consider impeachments necessary to be employed in cases respecting an officer who is appointed during good behavior. Thus the judges can only be removed by impeachment. The President and Vice President hold their offices for the terms mentioned in the constitution, not liable to be removed from office in any other way. These circumstances are a deviation from my general principle; but have nevertheless a proper ground to be supported on. The electors who appoint the President, cannot assemble to exercise the authority which would naturally be in them. With respect to the judges, it is found necessary for the proper and uncorrupt administration of justice, and the security of freedom, to have them independent in their stations, so that they be not removable at pleasure. To them, therefore, the doctrine of impeachment is peculiarly applicable. It may properly be extended further, in cases where the President is desirous of retaining an officer who ought not to be retained. This House has the power of controlling him, and may impeach the officer before the Senate. In either of these three cases impeachments are necessary. Mr. BOUDINOT.--This is a question, Mr. Speaker, that requires full consideration, and ought only to be settled on the most candid discussion. It certainly involves the right of the Senate to a very important power. At present, I am so impressed with the importance of the subject, that I dare not absolutely decide on any principle, although I am firmly persuaded we ought to retain the clause in the bill; and, so far as it has been examined, I agree that it is a legislative construction of the constitution, necessary to be settled for the direction of your officers. But if it is a deviation from the constitution, or in the least degree an infringement upon the authority of the other branch of the Legislature, I shall most decidedly be against it. But I think it will appear, on a full consideration of this business, that we can do no otherwise than agree to this construction, in order to preserve to each department the full exercise of its powers, and to give this House security for the proper conduct of the officers who are to execute the laws. Mr. SMITH, (of South Carolina.)--I have attended to the arguments of the gentlemen who oppose the motion for striking out, and I apprehend that their reasoning is not perfectly consistent. The construction of some gentlemen is, that the power of removal is given to the President by the constitution. Others are of opinion that the constitution is silent; and therefore the House ought to give it. To oppose these adverse arguments, I must return to my strong ground on which my opponents dare not venture. I state again, that if the constitution has given the power, it is unnecessary to give it here; or if it has not given it, we have no right to confer it, because it is not within the enumerated powers delegated to Congress. Gentlemen have said that it is proper to give a legislative construction of the constitution. I differ with them on this point. I think it an infringement of the powers of the Judiciary. It is said, we ought not to blend the legislative, executive, or judiciary powers, further than is done by the constitution; and yet the advocates for preserving each department pure and untouched by the others, call upon this House to exercise the powers of the judges in expounding the constitution. What authority has this House to explain the law? But if it has this privilege, the Senate is also invested with it as part of the Legislature; and, in exercising it on the present question, we shall be likely to differ. If the constitution is silent, and gentlemen admit this, it is possible the Senate may view it with a favorable eye to their own right, and reject the bill on account of this clause. A great deal of mischief has arisen in the several States, by the Legislatures undertaking to decide constitutional questions. Sir, it is the duty of the Legislature to make laws; your judges are to expound them. Mr. GERRY.--Some gentlemen consider this as a question of policy; but to me it appears a question of constitutionality, and I presume it will be determined on that point alone. The best arguments I have heard urged on this occasion came from the honorable gentleman from Virginia, (Mr. MADISON.) He says the constitution has vested the executive power in the President; and that he has a right to exercise it under the qualifications therein made. He lays it down as a maxim, that the constitution vesting in the President the executive power, naturally vests him with the power of appointment and removal. Now I would be glad to know from that gentleman by what means we are to decide this question. Is his maxim supported by precedent drawn from the practice of the individual States? The direct contrary is established. In many cases the Executives are not in particular vested with the power of appointment; and do they exercise that power by virtue of their office? It will be found that other branches of the Government make appointments. How then can gentlemen assert that the powers of appointment and removal are incident to the Executive Department of Government? To me it appears at best but problematical. Neither is it clear to me that the power that appoints naturally possesses the power of removal. As we have no certainty on either of these points, I think we must consider it as established by the constitution. It appears very clear to me, that however this power may be distributed by the constitution, the House of Representatives have nothing to do with it. Why then should we interfere in the business? Are we afraid that the President and Senate are not sufficiently informed to know their respective duties? Our interposition argues that they want judgment, and are not able to adjust their powers without the wisdom of this House to assist them; to say the least on this point, it must be deemed indelicate for us to intermeddle with them. If the fact is, as we seem to suspect, that they do not understand the constitution, let it go before the proper tribunal; the judges are the constitutional umpires on such questions. Why, let me ask gentlemen, shall we commit an infraction of the constitution for fear the Senate or President should not comply with its directions? Mr. AMES.--When this question was agitated at a former period, I took no part in the debate. I believe it was then proposed, without any idea or intention of drawing on a lengthy discussion, and to me it appeared to be well understood and settled by the House; but since it has been reiterated and contested again, I feel it my bounden duty to deliver the reasons for voting in the manner I then did, and shall now do. Mr. Chairman, I look upon every question which touches the constitution as serious and important, and therefore worthy of the fullest discussion, and the most solemn decision. I believe, on the present occasion, we may come to something near certainty, by attending to the leading principles of the constitution. In order that the good purposes of a Federal Government should be answered, it was necessary to delegate considerable powers; and the principle upon which the grant was made, intended to give sufficient power to do all possible good, but to restrain the rulers from doing mischief. The constitution places all executive power in the hands of the President, and could he personally execute all the laws, there would be no occasion for establishing auxiliaries; but the circumscribed powers of human nature in one man, demand the aid of others. When the objects are widely stretched out, or greatly diversified, meandering through such an extent of territory as that the United States possess, a minister cannot see with his own eyes every transaction, or feel with his hands the minutiæ that pass through his department. He must therefore have assistants. But in order that he may be responsible to his country, he must have a choice in selecting his assistants, a control over them, with power to remove them when he finds the qualifications which induced their appointment cease to exist. There are officers under the constitution who hold their office by a different tenure--your judges are appointed during good behavior; and from the delicacy and peculiar nature of their trust, it is right it should be so, in order that they may be independent and impartial in administering justice between the Government and its citizens. But the removability of the one class, or immovability of the other, is founded on the same principle, the security of the people against the abuse of power. Does any gentleman imagine that an officer is entitled to his office as to an estate? Or does the Legislature establish them for the convenience of an individual? For my part I conceive it intended to carry into effect the purposes for which the constitution was intended. The executive powers are delegated to the President, with a view to have a responsible officer to superintend, control, inspect, and check the officers necessarily employed in administering the laws. The only bond between him and those he employs, is the confidence he has in their integrity and talents; when that confidence ceases, the principal ought to have power to remove those whom he can no longer trust with safety. If an officer shall be guilty of neglect or infidelity, there can be no doubt but he ought to be removed; yet there may be numerous causes for removal which do not amount to a crime. He may propose to do a mischief; but I believe the mere intention would not be cause of impeachment. He may lose the confidence of the people upon suspicion, in which case it would be improper to retain him in service; he ought to be removed at any time, when, instead of doing the greatest possible good, he is likely to do an injury to the public interest by being continued in the administration. I presume gentlemen will generally admit that officers ought to be removed when they become obnoxious; but the question is, how shall this power be exercised? It will not, I apprehend, be contended, that all officers hold their offices during good behavior. If this be the case, it is a most singular Government. I believe there is not another in the universe that bears the least semblance to it in this particular; such a principle, I take it, is contrary to the nature of things. But the manner how to remove is the question. If the officer misbehaves, he can be removed by impeachment; but in this case is impeachment the only mode of removal? It would be found very inconvenient to have a man continued in office after being impeached, and when all confidence in him was suspended or lost. Would not the end of impeachment be defeated by this means? If Mr. Hastings, who was mentioned by the gentleman from Delaware (Mr. VINING) preserved his command in India, could he not defeat the impeachment now pending in Great Britain? If that doctrine obtains in America, we shall find impeachments come too late; while we are preparing the process, the mischief will be perpetrated, and the offender will escape. I apprehend it will be as frequently necessary to prevent crimes as to punish them; and it may often happen that the only prevention is by removal. The superintending power possessed by the President, will perhaps enable him to discover a base intention before it is ripe for execution. It may happen that the Treasurer may be disposed to betray the public chest to the enemy, and so injure the Government beyond the possibility of reparation; should the President be restrained from removing so dangerous an officer, until the slow formality of an impeachment was complied with, when the nature of the case rendered the application of a sudden and decisive remedy indispensable? But it will, I say, be admitted, that an officer may be removed. The question then is, by whom? Some gentlemen say by the President alone; and others, by the President, by and with the advice of the Senate. By the advocates of the latter mode, it is alleged, that the constitution is in the way of the power of removal being by the President alone. If this is absolutely the case, there is an end to all further inquiry. But before we suffer this to be considered as an insuperable impediment, we ought to be clear that the constitution prohibits him the exercise of what, on a first view, appears to be a power incident to the executive branch of the Government. The gentleman from Virginia (Mr. MADISON) has made so many observations to evince the constitutionality of the clause, that it is unnecessary to go over the ground again. I shall therefore confine myself to answer only some remarks made by the gentleman from South Carolina, (Mr. SMITH.) The powers of the President are defined in the constitution; but it is said, that he is not expressly authorized to remove from office. If the constitution is silent also with respect to the Senate, the argument may be retorted. If this silence proves that the power cannot be exercised by the President, it certainly proves that it cannot be exercised by the President, by and with the advice and consent of the Senate. The power of removal is incident to Government; but not being distributed by the constitution, it will come before the Legislature, and, like every other omitted case, must be supplied by law. Mr. LIVERMORE.--I am for striking out this clause, Mr. Chairman, upon the principles of the constitution, from which we are not at liberty to deviate. The honorable gentleman from Massachusetts, (Mr. SEDGWICK,) calls the Minister of Foreign Affairs the creature of the law, and that very properly; because the law establishes the office, and has the power of creating him in what shape the Legislature pleases. This being the case, we have a right to create the office under such limitations and restrictions as we think proper, provided we can obtain the consent of the Senate; but it is very improper to draw as a conclusion, from having the power of giving birth to a creature, that we should therefore bring forth a monster, merely to show we had such power. I call that creature a monster that has not the proper limbs and features of its species. I think the creature we are forming is unnatural in its proportions. It has been often said, that the constitution declares the President, by and with the advice and consent of the Senate, shall appoint this officer. This, to be sure, is very true, and so is the conclusion which an honorable gentleman (Mr. WHITE) from Virginia drew from it, that an officer must be discharged in the way he was appointed. I believe, Mr. Chairman, this question depends upon a just construction of a short clause in the constitution. "The President shall have power, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of Supreme Court, and all other officers of the United States." Here is no difference with respect to the power of the President to make treaties and appoint officers, only it requires in the one case a larger majority to concur than in the other. I will not by any means suppose that gentlemen mean, when they argue in favor of removal by the President alone, to contemplate the extension of the power to the repeal of treaties; because, if they do, there will be little occasion for us to sit here. But let me ask these gentlemen, as there is no real or imaginary distinction between the appointment of ambassadors and ministers, or Secretaries of Foreign Affairs, whether they mean that the President should have the power of recalling or discarding ambassadors and military officers, for the words in the constitution are "all other officers," as well as he can remove your Secretary of Foreign Affairs. To be sure, they cannot extend it to the judges; because they are secured under a subsequent article, which declares they shall hold their offices during good behavior; they have an inheritance which they cannot be divested of, but on conviction of some crime. But I presume gentlemen mean to apply it to all those who have not an inheritance in their offices. In this case, it takes the whole power of the President and Senate to create an officer, but half the power can uncreate him. Surely a law passed by the whole Legislature cannot be repealed by one branch of it; so I conceive, in the case of appointments, it requires the same force to supersede an officer as to put him in office. I acknowledge, that the clause relative to impeachment is for the benefit of the people; it is intended to enable their representatives to bring a bad officer to justice who is screened by the President; but I do not conceive, with the honorable gentleman from South Carolina, (Mr. SMITH,) that it by any means excludes the usual ways of superseding officers. It is said in the constitution, that the House shall have the power of choosing their own officers. We have chosen a clerk, and, I am satisfied, a very capable one; but will any gentleman contend we may not discharge him and choose another and another as often as we see cause? And so it is in every other instance; where they have the power to make, they have likewise the power to unmake. It will be said by gentlemen, that the power to make does not imply the power of unmaking; but I believe they will find very few exceptions in the United States. Mr. SHERMAN.--I wish, Mr. Chairman, that the words may be left out of the bill, without giving up the question either way as to the propriety of the measure. Many of the honorable gentlemen who advocate this clause have labored to show that the President has, constitutionally, the power of removal. If this be a well-founded opinion, they ought not to let the words remain in the bill, because they are of such a nature as to imply that he had not the power before it was granted him by the law. If gentlemen would consent to make a general law, declaring the proper mode of removal, I think we should acquire a greater degree of unanimity, which, on this occasion, must be better than carrying the question against a large minority. The call for the question being now very general, it was put, shall the words "to be removable by the President," be struck out? It was determined in the negative; being yeas 20, nays 34. WEDNESDAY, June 24. _Department of Foreign Affairs._ The engrossed bill "for establishing an Executive Department, to be denominated the Department of Foreign Affairs," was read the third time. Mr. SUMTER.--This bill appears to my mind so subversive of the constitution, and in its consequences so destructive to the liberties of the people, that I cannot consent to let it pass without expressing my detestation of the principle it contains. I do it in this public manner, in order to fulfil what I think to be my duty to my country, and to discharge myself of any concern in a matter that I do not approve. Mr. PAGE discovered the fate of the bill; he knew it must pass, but, nevertheless, he would decidedly give it his negative, and he hoped the respectable minority which he had the honor of voting with hitherto on the question of removability, would unite with him firmly in their opposition; and in order to record to their constituents the sentiments they maintained, he moved to take the question by the yeas and nays. One-fifth of the members present joined in requiring the yeas and nays; whereupon they were taken, and are, YEAS.--Messrs. Ames, Benson, Boudinot, Brown, Burke, Cadwalader, Carroll, Clymer, Contee, Fitzsimons, Gilman, Goodhue, Griffin, Hartley, Heister, Huger, Lawrence, Lee, Madison, Moore, Muhlenberg, Schureman, Scott, Sedgwick, Seney, Sinnickson, Sylvester, Trumbull, and Vining.--29. NAYS.--Messrs. Coles, Gerry, Grout, Hathorn, Huntington, Jackson, Leonard, Livermore, Matthews, Page, Parker, Partridge, Van Rensselaer, Sherman, Smith, of Maryland, Smith, of South Carolina, Stone, Sturgis, Sumter, Thatcher, Tucker, and White.--22. So the question was determined in the affirmative, and the clerk directed to carry the bill to the Senate, and desire their concurrence. _Department of War._ The House then went into a committee on the bill for establishing the Department of War. Mr. TRUMBULL in the chair. Mr. BENSON proposed, with respect to the Secretary's being removable by the President, a similar amendment to that which had been obtained in the bill establishing the Department of Foreign Affairs. Mr. SHERMAN thought it unnecessary to load this bill with any words on that subject; he conceived the gentleman ought to be satisfied with having had the principle established in the other bill. Mr. PAGE was of the same opinion, but further thought it argued a doubt, even in the mind of the majority, of the truth of their principles, and they wanted, by repetition, to force that upon the mind which was not impressed by right reason. The question on the amendment was taken without further debate, and carried in the affirmative, twenty-four to twenty-two. Some other small alterations being made, the committee rose, and reported the bill as amended; which being partly considered, the House adjourned. THURSDAY, June 25. _Department of War._ The House resumed the consideration of the amendments reported by the Committee of the Whole to the bill for establishing the War Department; which being agreed to, the bill was ordered to be engrossed. _Treasury Department._ The House then resolved itself into a Committee of the Whole on the bill for establishing the Treasury Department, Mr. TRUMBULL in the chair. The second clause being under consideration, Mr. PAGE objected to the words making it the duty of the Secretary to "digest and report plans for the improvement and management of the revenue, and the support of the public credit;" observing that it might be well enough to enjoin upon him the duty of making out and preparing estimates; but to go any further would be a dangerous innovation upon the constitutional privilege of this House; it would create an undue influence within these walls, because members might be led, by the deference commonly paid to men of abilities, who give an opinion in a case they have thoroughly studied, to support the minister's plan, even against their own judgment. Nor would the mischief stop here; it would establish a precedent which might be extended, until we admitted all the ministers of the Government on the floor, to explain and support the plans they have digested and reported: thus laying a foundation for an aristocracy or a detestable monarchy. Mr. TUCKER.--The objection made by the gentleman near me is, undoubtedly, well founded. I think it proper to strike out all the words alluded to, because the following are sufficient to answer every valuable purpose, namely, "to prepare and report estimates of the public revenue and public expenditures." If we authorize him to prepare and report plans, it will create an interference of the executive with the legislative powers; it will abridge the particular privilege of this House; for the constitution expressly declares, that all bills for raising revenue shall originate in the House of Representatives. How can the business originate in this House, if we have it reported to us by the Minister of Finance? All the information that can be required, may be called for, without adopting a clause that may undermine the authority of this House, and the security of the people. The constitution has pointed out the proper method of communication between the executive and legislative departments; it is made the duty of the President to give, from time to time, information to Congress of the state of the Union, and to recommend to their consideration such measures as he shall judge necessary and expedient. If revenue plans are to be prepared and reported to Congress, here is the proper person to do it; he is responsible to the people for what he recommends, and will be more cautious than any other person to whom a less degree of responsibility is attached. Under this clause, you give the Secretary of the Treasury a right to obtrude upon you plans, not only undigested, but even improper to be taken up. I hope the House is not already weary of executing and sustaining the powers vested in them by the constitution; and yet it would argue that we thought ourselves less adequate to determine than any individual what burthens our constituents are equal to bear. This is not answering the high expectations that were formed of our exertions for the general good, or of our vigilance in guarding our own and the people's rights. In short, Mr. Chairman, I can never agree to have money bills originated and forced upon this House by a man destitute of legislative authority, while the constitution gives such power solely to the House of Representatives; for this reason, I cheerfully second the motion for striking out the words. Mr. BENSON.--If the proposed amendment prevail, the bill will be nearly nugatory. The most important service that can be rendered by a gentleman who is at the head of the Department of Finance, is that of digesting and reporting plans for the improvement of the revenue, and supporting public credit; and, for my part, I shall despair of ever seeing your revenue improved, or the national credit supported, unless the business is submitted into the hands of an able individual. I thought this subject was well understood, from the debate on the original motion. It was then insisted upon by an honorable gentleman, Mr. GERRY, who opposed the appointment of a Secretary of the Treasury, that his important duties ought to be "to consider of the means of improving the revenue, and introducing economy into the expenditures, and to recommend general systems of revenue." Now, what more than this is required by the clause? For my part, I am at a loss to see how the privilege of the House is infringed. Can any of the Secretary's plans be called bills? Will they be reported in such a form even? But admitting they were, they do not become bills, unless they are sanctioned by the House; much less is the danger that they will pass into laws without full examination by both Houses and the President. From this view of the subject, so far is the clause from appearing dangerous, that I believe it discovers itself to be not only perfectly safe, but essentially necessary; and without it is retained, the great object of the bill will be defeated. Mr. GOODHUE.--We certainly carry our dignity to the extreme, when we refuse to receive information from any but ourselves. It must be admitted, that the Secretary of the Treasury will, from the nature of his office, be better acquainted with the subject of improving the revenue or curtailing expense, than any other person; if he is thus capable of affording useful information, shall we reckon it hazardous to receive it? For my part, when I want to attain a particular object, I never shut my ears against information likely to enable me to secure it. Mr. PAGE.--I can never consent to establish, by law, this interference of an executive officer in business of legislation; it may be well enough in an absolute monarchy, for a minister to come to a Parliament with his plans in his hands, and order them to be enregistered or enacted; but this practice does not obtain even in a limited monarchy like Britain. The minister there, who introduces his plans, must be a member of the House of Commons. The man would be treated with indignation, who should attempt in that country to bring his schemes before Parliament in any other way. Now, why we, in the free republic of the United States, should introduce such a novelty in legislation, I am at a loss to conceive. The constitution expressly delegates to us the business of the revenue; our constituents have confidence in us, because they suppose us acquainted with their circumstances; they expect, in consequence of this knowledge, we will not attempt to load them with injudicious or oppressive taxes; but they have no such security, if we are blindly to follow perhaps an unskilful minister. It does not answer me, Mr. Chairman, to say the House has a right of deliberating and deciding upon these plans, because we may be told, if you prune away this part or that part of the system, you destroy its efficiency. Therefore we must act with caution; we must either take or reject the whole; but if we reject the whole, sir, we are to depend upon ourselves for a substitute. How are we to form one? For my part, I should not despair, that the united wisdom of this House could procure one; but if we are to do this in the second instance, why cannot we attempt it in the first? I have no objection to our calling upon this or any other officer for information; but it is certainly improper to have him authorized by law to intrude upon us whatever he may think proper. I presume, sir, it is not supposed by the worthy gentleman from New York (Mr. BENSON) that we shall be at a loss to conceive what information would be useful or proper for us to require, that we must have this officer to present us with what he chooses. When the President requires an opinion of him, the constitution demands him to give it; so under the law, let him send his opinion in here when it is asked for. If any further power is given him, it will come to this at last: we, like the Parliament of Paris, shall meet to register what he dictates. Either these reports of the Secretary are to have weight, or they are not; if they are to have weight, the House acts under a foreign influence, which is altogether improper and impolitic; if they are to have no weight, we impose a useless duty upon the officer, and such as is no mark of our wisdom. Mr. AMES hoped the subject might be treated with candor and liberality; he supposed the objections were made on those principles, and therefore required a serious answer. The worthy gentleman who first expressed his aversion to the clause seemed to be apprehensive that the power of reporting plans by the Secretary would be improper, because it appeared to him to interfere with the legislative duty of the House, which the House ought not to relinquish. Whenever it is a question, Mr. Speaker, said he, whether this House ought, or ought not, to establish offices to exercise a part of the power of either branch of the Government, there are two points which I take into consideration, in order to lead my mind to a just decision; first, whether the proposed disposition is useful; and, second, whether it can be safely guarded from abuse. Now I take it, sir, that the House by their order for bringing in a bill to establish the Treasury Department in this way, have determined the point of utility; or, have they erred in adopting that opinion, I will slightly make an inquiry, How does it tend to general utility? The Secretary is presumed to acquire the best knowledge of the subject of finance of any member of the community. Now, if this House is to act on the best knowledge of circumstances, it seems to follow logically that the House must obtain evidence from that officer; the best way of doing this will be publicly from the officer himself, by making it his duty to furnish us with it. It will not be denied, sir, that this officer will be better acquainted with his business than other people can be. It lies within his department to have a comprehensive view of the state of the public revenues and expenditures. He will, by his superintending power over the collection, be able to discover abuses, if any, in that department, and to form the most eligible plan to remedy or prevent the evil. From his information respecting money transactions, he may be able to point out the best mode for supporting the public credit; indeed, these seem to me to be the great objects of his appointment. Mr. LIVERMORE.--I shall vote for striking out the clause, because I conceive it essentially necessary so to do. The power of originating money bills within these walls, I look upon as a sacred deposit which we may neither violate nor divest ourselves of, although at first view it may appear of little importance who shall form a plan for the improvement of the revenue. Although every information tending to effect this great object may be gratefully received by this House, yet it behoves us to consider to what this clause may lead, and where it may terminate. Might it not, by construction, be said that the Secretary of the Treasury has the sole right of digesting and reporting plans for the improvement of the revenue? This construction may appear a little extraordinary, but it is not more so than some constructions heretofore put upon other words; but however extraordinary it may be, it may take place, and I think the best way to avoid it, will be to leave out the words altogether. It is certainly improper that any person, not expressly intrusted by our constituents with the privilege of taking their money, should direct the quantum and the manner in which to take it. Mr. SEDGWICK.--If the principle prevails for curtailing this part of the Secretary's duty, we shall lose the advantages which the proposed system was intended to acquire. The improvement and management of the revenue is a subject that must be investigated by a man of abilities and indefatigable industry, if we mean to have our business advantageously done. If honorable gentlemen will for a moment consider the peculiar circumstances of this country, the means of information attainable by the individual members of this House, and compare them with the object they have to pursue, they will plainly perceive the necessity of calling to their aid the advantages resulting from an establishment like the one contemplated in the bill; if they weigh these circumstances carefully, their objections, I trust, will vanish. Mr. BOUDINOT.--A proper jealousy for the liberty of the people is commendable in those who are appointed and sworn to be its faithful guardians; but when this spirit is carried so far as to lose sight of its object, and instead of leading to avoid, urges on to the precipice of ruin, we ought to be careful how we receive its impressions. So far is the present measure from being injurious to liberty, that it is consistent with the true interest and prosperity of the community. Are gentlemen apprehensive we shall be led by this officer to adopt plans we should otherwise reject? For my part, I have a better opinion of the penetration of the representation of the people than to dread any such visionary phantom. Let us consider whether this power is essentially necessary to the Government. I take it to be conceded by the gentlemen, that it is absolutely so. They say they are willing to receive the information because it may be serviceable, but do not choose to have it communicated in this way. If the Secretary of the Treasury is the proper person to give the information, I can see no other mode of obtaining it that would be so useful. Do gentlemen mean that he shall give it piecemeal, by way of question and answer? This will tend more to mislead than to inform us. If we would judge upon any subject, it would be better to have it in one clear and complete view, than to inspect it by detachments; we should lose the great whole in the minutiæ, and, instead of a system, should present our constituents with a structure composed of discordant parts, counteracting and defeating the operation of each other's properties. Mr. HARTLEY rose to express his sentiments, as he did on every occasion, with diffidence in his own abilities; but he looked upon the clause as both unsafe and inconsistent with the constitution. He thought the gentleman last up proved too much by his arguments; he proved that the House of Representatives was, in fact, unnecessary and useless; that one person could be a better judge of the means to improve and manage the revenue, and support the national credit, than the whole body of Congress. This kind of doctrine, Mr. Chairman, is indelicate in a republic, and strikes at the root of all legislation founded upon the great democratic principle of representation. It is true, mistakes, and very injurious ones, have been made on the subject of finance by some State Legislatures; but I would rather submit to this evil, than, by my voice, establish tenets subversive of the liberties of my country. Notwithstanding what I have said, I am clearly of opinion it is necessary and useful to take measures for obtaining other information than what members can acquire in their characters as citizens; therefore, I am in favor of the present bill; but I think these words too strong. If it was modified so as to oblige him to have his plans ready for this House when they are asked for, I should be satisfied; but to establish a legal right in an officer to obtrude his sentiments perpetually on this body is disagreeable, and it is dangerous, inasmuch as the right is conveyed in words of doubtful import, and conveying powers exclusively vested by the constitution in this House. Mr. GERRY expressed himself in favor of the object of the clause; that was, to get all the information possible for the purpose of improving the revenue, because he thought this information would be much required, if he judged from the load of public debt, and the present inability of the people to contribute largely towards its reduction. He could not help observing, however, the great degree of importance they were giving this, and the other executive officers. If the doctrine of having prime and great ministers of state was once well established, he did not doubt but we should soon see them distinguished by a green or red ribbon, or other insignia of court favor and patronage. He wished gentlemen were aware of what consequences these things lead to, that they might exert a greater degree of caution. The practice of Parliament in Britain is first to determine the sum they will grant, and then refer the subject to a Committee of Ways and Means: this might be a proper mode to be pursued in this House. Do gentlemen, said he, consider the importance of the power they give the officer by the clause? Is it not part of our legislative authority? And does not the constitution expressly declare that the House solely shall exercise the power of originating revenue bills? Now, what is meant by reporting plans? It surely includes the idea of originating money bills, that is, a bill for improving the revenue, or, in other words, for bringing revenue into the treasury. For if he is to report plans, they ought to be reported in a proper form, and complete. This is giving an indirect voice in legislative business to an executive officer. If this be not the meaning of the clause, let gentlemen say what is, and to what extent it shall go; but if my construction is true, we are giving up the most essential privilege vested in us by the constitution. But what does this signify? The officer is responsible, and we are secure. This responsibility is made an argument in favor of every extension of power. I should be glad to understand the term. Gentlemen say the Secretary of the Treasury is responsible for the information he gives the House--in what manner does this responsibility act? Suppose he reports a plan for improving the revenue, by a tax which he thinks judicious, and one that will be agreeable to the people of the United States; but he happens to be deceived in his opinion, that his tax is obnoxious, and excites a popular clamor against the minister--what is the advantage of his responsibility? Nothing. Few men deserve punishment for the error of opinion; all that could be done would be to repeal the law, and be more cautious in future in depending implicitly on the judgment of a man who had led us into an impolitic measure. Suppose the revenue should fall short of his estimate, is he responsible for the balance? This will be carrying the idea further than any Government hitherto has done. What then is the officer to be responsible for, which should induce the House to vest in him such extraordinary powers? Mr. LAWRENCE.--I do not see consequences so dangerous as some gentlemen seem to apprehend; nor did they appear to them, I believe, when the subject was last under consideration. I recollect, Mr. Chairman, that some difficulty was made about establishing this office, because it was feared we could not find men of sufficient abilities to fill it. The duties were then properly deemed of a high and important nature, and enumerated as those proposed in the bill. It was supposed by an honorable gentleman, that the powers here expressed might be lodged in a board, because an individual was incompetent to undertake the whole. But now we have the wonderful sagacity of discovering, that if an individual is appointed, he will have capacity to form plans for improving the revenue in such an advantageous manner, as to supersede the necessity of having the representatives of the people consulted on the business: he will not only perform the usual duties of a Treasury Board, but be adequate to all purposes of legislation. I appeal to the gentleman for his usual candor on this occasion, which will assure us that he has wire-drawn his arguments. Mr. MADISON.--After hearing and weighing the various observations of gentlemen, I am at a loss to see where the danger lies. These are precisely the words used by the former Congress, on two occasions, one in 1783, the other in a subsequent ordinance, which established the Revenue Board. The same power was also annexed to the office of Superintendent of Finance, but I never yet heard that any inconvenience or danger was experienced from the regulation; perhaps, if the power had been more fully and frequently exercised, it might have contributed more to the public good. There is a small probability, though it is but small, that an officer may derive a weight from this circumstance, and have some degree of influence upon the deliberations of the Legislature; but compare the danger likely to result from this clause, with the danger and inconvenience of not having well-formed and digested plans, and we shall find infinitely more to apprehend. Inconsistent, unproductive, and expensive schemes, will be more injurious to our constituents than the undue influence which the well-digested plans of a well-informed officer can have. From a bad administration of the Government, more detriment will arise than from any other source. The want of information has occasioned much inconvenience and unnecessary burthens under some of the State Governments. Let it be our care to avoid those rocks and shoals in our political voyage, which have injured, and nearly proved fatal to, many of our cotemporary navigators. A gentleman has asked, what is meant by responsibility? I will answer him. There will be responsibility in point of reputation, at least a responsibility to the public opinion with respect to his abilities; and supposing there is no personal responsibility, yet we know that men of talents and ability take as much care for the preservation of their reputation as any other species of property of which they are possessed. If a superior degree of wisdom is expected to be displayed by them, they take pains to give proofs that they possess it in the most unequivocal manner; this of itself will ensure us no small degree of exertion. With respect to originating money bills, the House has the sole right to do it; but if the power of reporting plans can be construed to imply the power of originating revenue bills, the constitution is inconsistent with itself, in giving the President authority to recommend such measures as he may think expedient or necessary; but the construction is too unnatural to require further investigation. I have admitted there is a small probability of a small inconvenience, but I do not think it any more an argument against the clause, than it would be an argument against having windows in a house, that it is possible the wind and the rain may get in through the crevices. Mr. STONE was not afraid of giving the officer the power of reporting plans, because he was sure Congress would, in every case, decide upon their own judgment. A future Congress would not pay such a deference, even to their predecessors, as to follow in their footsteps, unless they were convinced of the good policy of their measures. He thought if the House wanted to make use of the information acquired by the Secretary, they ought to give him notice of their intention; consequently, something of this kind was proper in the bill. Mr. SHERMAN thought the principle held up by the clause, was absolutely necessary to be received. It was of such a nature as to force itself upon them; therefore it was in vain to attempt to elude it by subterfuge. It was owing to the great abilities of a financier, that France had been able to make the exertions we were witnesses of a few years ago, without embarrassing the nation. This able man, after considerably improving the national revenue, was displaced; but such was the importance of the officer, that he has been restored again. Mr. _Baldwin_.--I do not see what we are guarding against by striking out the words, unless gentlemen mean to go so far as to introduce a prohibitory clause, and declare that the Secretary of the Treasury shall be restrained from digesting or preparing plans for the improvement of the revenue. If there is any evil in having him attend to this branch of the business, I cannot see how to avoid it. Suppose the officer is a bad man, and there are others like him in this House, (for this must be what the gentlemen are afraid of;) and suppose he has prepared a scheme for peculation, which he hopes to get adopted by making dupes of the honest part; how are you to hinder it from being brought forward? Cannot his friends introduce it as their own, by making and seconding a motion for that purpose? Will you restrain him from having access to the members out of doors? And cannot he infuse his dangerous and specious arguments and information into them as well in the closet, as by a public and official communication? But, Mr. Chairman, can this House, or if it can, will it prevent any of their constituents from bringing before them plans for the relief of grievances or oppressions? Every individual of the community can bring business before us by petition, memorial, or remonstrance, provided it be done in a decent manner. How then do you propose to restrain the Secretary of the Treasury? I think the clause is very well as it stands, and shall therefore be against the amendment. Mr. PAGE'S motion for striking out the clause being put and negatived: The question on Mr. FITZSIMON'S motion to amend the bill, by striking out the word report, and inserting prepare, was taken and carried by a great majority. After which the House adjourned. FRIDAY, June 26. A number of the members attending the interesting conference which to-day took place with the Senate on the impost and tonnage bills, no business was done in this House. _Saturday_, June 27. _Revenue Bill._ Mr. _Boudinot_, from the managers on the part of this House in the conference with the Senate on the subject of the amendments to the Impost Bill, reported that the conference had agreed to pass the bill as amended by the Senate, with some additional amendments, viz: the duty on distilled spirits of Jamaica proof, to be reduced from fifteen cents to ten cents per gallon. The duty on all other spirits, to be reduced from twelve to eight cents per gallon. The duty on beer, ale, porter, or cider, imported in casks, from eight to five cents per gallon. The duty on beer imported in bottles, from twenty-five to twenty cents per gallon. The duty on coal, from three to two cents per bushel. MONDAY, July 13. _Western Lands._ The House resolved itself into a Committee of the Whole on the state of the Union. Mr. BOUDINOT in the chair. Mr. SCOTT requested that the report of the committee on the Western Territory might be read, which was read accordingly, as follows: _Resolved_, That it is the opinion of this committee, that an act of Congress should pass for establishing a Land Office, and to regulate the terms of granting vacant and unappropriated lands in the Western Territory. Mr. SCOTT.--In endeavoring, sir, to open the interesting subject now before you, I shall avoid the repetition of those ideas which I threw out on a former occasion, as far as my memory will serve me, and the nature of the subject will permit. This subject, sir, will appear of great magnitude in point of interest, if we consider the extent of the territory; I think I shall not be far beyond the mark, if I say it is one thousand miles long by five hundred broad; nor if I say it is sufficient to contain two millions of farms; nevertheless, for greater caution, say it will contain one million, (which is notoriously and greatly within the real contents,) and that each of these farms may be peopled by six souls, they will amount to six millions of inhabitants, double the number of the present inhabitants of the United States. From this view, it is an object of great concern. It will appear also an object of concern, if we contemplate the climate, the soil, and the waters of that country; consider that it lies in the heart of the temperate zone; its soil infinitely more rich and more fertile than any in the Atlantic States; its waters pure and good--in a word, it is such a territory as must command inhabitants, and will be peopled. Its situation in the middle of our continent, gives the climate a salubrity that accommodates it to the emigrants from both Northern and Southern States. It is meeting them on a middle ground, softening the harsh restrictions of the rugged North, and breathing bland the zephyr grateful to the sun-scorched South. In short, it is such as gives to all who have seen it the utmost satisfaction--it is both healthy and agreeable. It may perhaps be objected, that the measure now proposed will lead or tend to a depopulation of the Atlantic States, and therefore ought not to be adopted. This is a circumstance I by no means wish. I am as far from desiring a depopulation of the Atlantic shores, as I am from fearing it on this ground. I am confident it will not operate in any considerable degree to bring about that event; but if it should be thought it would, that could be no solid objection against the measure. Whilst the desire of emigration continues, and lands are to be procured, settlers will find their way into that territory; nor is it in the power of Congress to withhold lands altogether, because they are to be got of others on better terms. There is superior encouragement held out to the people settling on the other side of the river Mississippi, where the soil is fertile, and the climate equally agreeable. In proof of this assertion, I will read to the committee the translation of a kind of proclamation issued by the Governor of the Spanish posts at the Illinois. [This paper contains an invitation to all persons inclined to settle in the Western country, offering as inducements, lands without charge, exemptions from taxes, protection in civil and religious liberties, besides provision and the implements of husbandry.] After this, Mr. S. proceeded: Now, sir, if Congress fear to sell their lands lest it tend to depopulate the Atlantic States, what must they apprehend from propositions like these? They will certainly have all the effect which encouragement from this quarter can have. It may be said, that Americans will not venture to live under the Spanish Government, or settle a Spanish colony. To this it may be replied, that when people, from their necessities or inclinations, are determined to emigrate, in order to mitigate their distresses, they think little of the form of government; all they care for is relief from their present or approaching wants and troubles. Nobody will emigrate from the Atlantic States but a certain description of men, and they will go whether you hold out this encouragement to them or not; they will pay little regard to Congressional restrictions. And here let me make one remark, drawn from my own observation. The forming settlements in a wilderness upon the frontiers, between the savages and the least populated of the civilized parts of the United States, requires men of enterprising, violent, nay, discontented and turbulent spirits. Such always are our first settlers in the ruthless and savage wild; they serve as pioneers to clear the way for the more laborious and careful farmer. These characters are already in that country by thousands, and their number is daily increasing, and will continue to increase; for congenial spirits will assimilate maugre all our endeavors to the contrary. But how will you prevent them? I should be glad to see a plan for hemming in the emigration to that territory; I think the thing wholly impracticable, therefore it becomes the immediate interest of Congress, to direct the emigration to a proper point; direct it to their own territory, rather than be inactive spectators of its silent, though rapid course to the Spanish and British dependencies; rather sell your lands and get something for them, than let your citizens leave your dominions. By improving a part, you add to the value of the remainder; their population will produce a hardy race of husbandmen and warriors, always at the command of the United States, to support and defend your liberty and property. These being facts, I leave it to the wisdom of the House to draw the inference. I will make one further remark, with respect to the encouragement or discouragement of emigration. Suppose it was in the power of Congress to stop the course of the impetuous current, which has already won its way through insuperable obstructions, and spread itself over the fertile lands of the Ohio. I ask, with perfect security, if it is not such an act of contumacy, and inconsistency with the fundamental principles of the Government, that Congress could not adopt it? Consider that many of your citizens are destitute of the comforts, nay, the common necessaries of life, without a prospect of providing for the subsistence of themselves and families: I ask, would Congress prevent the emigration of such persons if they could? I think not; they would not act as kind protecting fathers to their people if they did. I presume this would be too serious an objection for any man to face, with a restraining proposition. I question if any man would be hardy enough to point out a class of citizens by name, that ought to be the servants of the community; yet, unless that is done, to what class of the people could you direct such a law? But if you passed such an act, it would be tantamount to saying that there is some class which must remain here, and by law must be obliged to serve the others, for such wages as they please to give. This being the case, let us make the best of liberty, our people, and our land. Your citizens, I tell you, are already there by thousands; they are going by thousands more, and are every hour growing up into consequence. They never expect to return into the Atlantic States; plant them in your soil, add this wealth of population to your own, and form an empire illustrious as it is extended. Remember, ye sages of my country, an historic truth recorded for your instruction, that empire has been slowly, but invariably, moving from East to West; emigration has uniformly receded in that direction, from the time that our common parents quitted the garden of Eden, till the present hour; nor doubt but it will continue to pursue that course, as long as there are lands to be inhabited. Much will depend upon the energy and force of the Government established in that country; it ought to be such as will furnish sufficient power for its own internal purposes, and also to secure it to the Union. But that is not the only tie by which its union is held. That country is attached to the Atlantic States by its natural situation. To be convinced of this truth, nothing more is necessary than to look upon the chart: all the commerce of that country must come through the States upon the sea-coast. We know, at Pittsburg, that we are a thousand miles nearer to the market than settlers at the mouth of the Ohio river. When we export our produce by that and the Mississippi, we know we can get easier home with our returns by the way of Philadelphia, than the others can by turning up and stemming the current of the Mississippi. Therefore, the imports for all that territory must come through the United States. From these considerations, I conclude it would be madness in the extreme for them to think of a separation, unless they were driven to it by a fatal necessity; they will be too sensible of its ill effects ever to attempt it. But suppose, for a moment, that they break off from the Union, and even become our enemies, it would be good policy in us to get as much as we can from them first, especially as they are disposed to give it us; let us make them extinguish part of our national debt before they leave us. The soil and climate of that country, as I said before, will be great inducements for emigrants to settle there. If they were to break off, they would know how to get money enough from the sale of the territory to support their Government, without any other resource whatever. If I, as a resident in that country, had the remotest view of a separation from the Atlantic States, I should be sorry to see Congress sell an acre of that land; for selling it, in that case, would be neither more nor less than preventing us from putting the money into our pockets when we became independent. If they meditate independency, the most likely way to make them so, will be to let their lands alone, in order to supply them with funds sufficient to support them in the measure. If they are sold, it will not be in their power. I apprehend it will be found that a Land Office will effect these objects better than any other plan that can be devised. If this should be effectual, and no doubt can be entertained but it will, the inhabitants of the United States cannot, with a good grace, be called upon for heavy taxes in order to pay the interest on a debt which can be so easily and properly extinguished. Every individual who contemplates the subject, will see how much it is his interest to buy a few dollars in certificates, and purchase a piece of land with them, which will annihilate the debt, and prevent the demand for taxes to pay the interest; besides, it will remain as a security to reimburse the principal to the proprietor, as the population of the country extends; but, at all events, it would be but advancing four or five years' interest, and the whole debt would be absorbed. If we mean to sell our lands for ready money, or mean to trust, we have a superior advantage. It is more probable that the necessitous person who wants the land for the subsistence of himself and family, will labor harder to procure a property of this kind, and secure it for himself, than the speculator who never means to pay a farthing until he has received it from the sale of the land; besides, the necessitous person is better able to buy of Government than of the speculator, because he can get it cheaper. The purchasers of large tracts retail out their land to this class of men, and certainly charge them something for their trouble. But if we sell on credit, as under the Proprietary Government was the practice in Pennsylvania, those who take out small quantities get their land surveyed, and set themselves down; they cultivate the ground, and erect buildings for their own accommodation. Land, in this improved state, furnishes a better security to Government for any arrearage of purchase money, than a large tract sold on speculation, and which lies in the same state of nature as it did when it was disposed of, perhaps adding thereto the expense of making the survey. If the land must revert to Congress at last for default of payment, we get nothing in the latter case; whereas, when sold in lots, if a man has settled himself down, and paid for his warrant and survey, which costs the Union nothing, but for the first price and interest thereon, it must strike every gentleman's mind that it would be disagreeable, after a man had made a settlement for three or four years, to have to turn out. Rather than do this, he would make every exertion to discharge the price: if his situation was so wretched as not to furnish the means, some of his neighbors, on such security, might befriend him; but at any rate Government would be secure. By this argument, I do not mean to insist that Congress should sell their lands on trust; they may do so, or sell for ready pay, as their wisdom may think eligible. I shall be satisfied either way. I think the convenience of the people is a subject not unworthy of being taken into view. My plan proposes that they should be able to perfect their titles on the spot. I fear not the objection which has been raised. It may be said, the titles ought not to be completed until it was done immediately under the eye of Congress. Let this be as it may, I will make one remark: can we not have every tie, every check, and security upon these officers that we have upon the collectors of the revenue? I think there is as much room for confidence in the one case as in the other. We can take care that the Secretary of the Land Office shall send in his accounts of patents and warrants. I think we may depend here upon a true return. The Receiver of the office shall take nothing but public securities, which are not quite so great a temptation to embezzlement or illicit practices as money. The Surveyor will be a check upon both. I think the gentlemen employed in this business cannot be of very trifling character. In short, this department may be as well checked and balanced as any other; the expense of it will be nothing, because the officer may be supported out of the fees. This being the case, I shall conclude with moving that the committee adopt the resolution reported by the committee, and recommend it to the House to appoint a select committee to bring in a bill accordingly. Mr. FITZSIMONS asked if it would not be better to settle all the principles of the bill first, that the select committee might not lose their labor, as had been once or twice experienced, for want of this precaution. He was in favor of some measure of this kind, though he had some doubts of the necessity there was supposed to be of establishing a Land Office. The question was now taken on the resolution, and agreed to. _Compensation of the President, &c._ Mr. VINING wished to call the attention of the House to a business he apprehended not very lengthy; it was the report of a committee on the subject of compensation to be made to the President, Vice President, the members of the Senate and House of Representatives, for their services; he wished gentlemen to consider the situation of every one concerned in this business, themselves, and the continent at large. He hoped they would consent to take it up, and he flattered himself the discussion would not last longer than a day. Mr. WHITE wished to go into a Committee of the Whole on the business. Mr. FITZSIMONS did not like to enter upon a lengthy discussion of a point that was incapable of much elucidation by reasoning; he therefore was against going into a committee at this stage of the business. He observed, that the committee had reported something, and the members had been pretty generally consulted on the same. He hoped the House would despatch the business without delay or loss of time, if they were at all inclined to take it up. Mr. WHITE thought it necessary to go into a committee, because there were a number of things mentioned, the reasons for which appeared to him very uncertain. Mr. VINING said it was a subject of considerable delicacy, and he supposed very few gentlemen would be inclined to speak three or four times on a point; yet this was all the advantage gained by going into a committee. He was no more interested than others; every gentleman might judge of his own case, but after it had been before a committee of twelve, in order to get the fullest sense of the House upon the subject, he was inclined to receive it without so much circumlocution. He observed, that the business had originated in a Committee of the Whole, and it was unusual to recommit it without showing some reasons why. Mr. WHITE gave up his motion for a Committee of the Whole, and said, before he consented to the report, he should be glad to know in what style it was expected that the President would live. He observed there was provision for the expenses of a house, furniture, secretaries, clerks, carriages and horses. Perhaps the sum proposed might be too much or too little. He should like to see an estimate of how much was necessary for keeping the table, the equipage, &c. before he decided. He hoped the committee would elucidate this subject. There was another thing he wished to inquire of them. The Vice President's salary was charged at five thousand dollars; he could not conceive upon what principle that sum was reported. Did it bear a proportion to his services, or was it in proportion to what the members of the Senate and this House were to be allowed? There is nothing which obliges him to be attentive to his business. No doubt but the gentleman who holds that office at present will be regardful and diligent in executing the business assigned him; yet there is nothing to prevent the Vice President from residing at home and receiving his salary, without coming within the walls of the Senate room. The Union is obliged to support him; but I, said he, would make that support conditional; he should have a liberal provision while in public life, but no longer. As to delicacy, I know of none, sir, that ought to be used while we are in pursuit of the public good. I speak therefore with candor what are my sentiments on this subject. Other gentlemen, no doubt, do the same; but I am clearly for examining into the principles before I agree to the conclusion. Mr. PAGE was sorry to see gentlemen spinning out the time to little purpose; certainly, after having the subject under consideration for nearly three months, they might be able to decide. If this business was fixed, and gentlemen knew they were to have but moderate salaries, it might perhaps tend to make them more expeditious; but at all events, they ought to know the rate at which they attend, in order to regulate their expenses. To some it might be a matter of no concern, because they could bear every thing of this kind for a twelvemonth, without inconvenience; but they ought to consider the situation of others. We are, said he, keeping the President here without any provision for his support; but in this we may think ourselves right, because, in his patriotic ardor, his love for his country, he told us he was willing to pursue that illustrious example which he set during the period of our calamity; he refused compensation for his services. But the constitution requires that he shall receive a compensation, and it is our duty to provide it. We must also provide something for our own expenses, or it may reduce gentlemen not better prepared than I am to depend upon a friend for what the public ought to furnish. Mr. VINING had said the subject was delicate, but he did not conceive there was any indelicacy in asking or answering questions on this or any other occasion, where the good of his country was concerned. Mr. LAWRENCE did not know, whether the sum proposed was enough for the President or not; but according to the terms of the constitution, it ought to be granted as one sum, because he is to receive no other emolument whatever from the United States, or either of them. Now, if it is declared he shall receive twenty thousand dollars, and, exclusive of that sum, we make him an allowance for furniture, horses, carriages, &c., such an allowance is an emolument beyond the compensation contemplated in the constitution; but I have no objection to blend these sums together, declaring the whole to be the compensation required by the constitution. Besides, if we establish salaries for his secretaries and clerks, we establish them officers of the Government; this will be improper, because it infringes his right to employ a confidential person in the management of those concerns, for which the constitution has made him responsible. For these reasons, Mr. L. moved to strike out all that related to horses, carriages, furniture, &c. Mr. SHERMAN thought it much better to give a net sum, because the President would then have no accounts to settle with the United States. Mr. SEDGWICK considered this a constitutional question, and therefore thought it deserved serious investigation. The provision made in the report, for paying the expenses of enumerated articles, does not leave the President in the situation intended by the constitution, which was, that he should be independent of the Legislature, during his continuance in office; that he should have a compensation for his services, not to be increased or diminished during that period; but there is nothing that will prevent us from making further allowances, provided that the twenty thousand dollars is all that is given as a compensation. By this construction, one of the most salutary clauses in the constitution will be rendered nugatory. From these considerations, he was led to believe that the report was founded on unconstitutional principles. Mr. BALDWIN said, the Committee of the Whole, when the business was before them, had not determined any thing on this point; that, consequently, the select committee were to frame a report upon such principles as they judged proper. In order then to have every thing distinct and accurate, they had brought their opinion forward in the form it now appears. If it be deemed proper to grant an aggregate sum, the House would no doubt add to the twenty thousand dollars, what it was supposed these expenses would amount to. However, he did not think the constitution was infringed; it was intended that the compensation should not be increased or diminished, during the President's continuance in office. Now it might be as well fixed, by making the allowance in part money, and part furniture, &c. as by declaring a precise sum; it will still be a stated compensation. Mr. TUCKER thought furniture and plate ought always to be provided by government, because, if it was necessary for every new President to buy these articles, it might put him to great inconvenience, unless he received a year's salary in advance; besides, when he retired from his situation, they would not sell for half the first cost. He therefore wished this part of the report to stand, together with the rent of a house; but would join in striking out all the rest. Mr. MADISON did not think the report interfered with either the spirit or letter of the constitution, and therefore was opposed to any alteration, especially with respect to the property of a fixed nature. He was sure, if the furniture and plate, and house rent, could be allowed, some of the other articles might also. The horses and carriages will cost money, and sell for little, after being used for four years; this will be a certain loss to the President, or his family; besides the House have already undertaken to defray expenses of this kind, and so set a precedent for the enumeration which had been reported. Mr. WHITE said, if a certain sum was assigned for the expenses, the report would be better; but as it now stood, there was no certainty in it. One President might circumscribe it to a quarter part of the expense another would; consequently, the compensation could not be fixed. He admitted the propriety of paying the salary in advance for the first year, as mentioned by the gentleman from South Carolina. He expected this would be sufficient to defray the extra expenses, without subjecting the President to any inconvenience. Mr. BOUDINOT.--If the Legislature may provide the house and furniture, they may go further on the same principle, and provide for the rest; he was satisfied it should be so, because it could be no infringement on the constitution. Mr. LIVERMORE hoped the words would be struck out; indeed he was sorry they had ever been put in. The clause in the constitution is intended to tie down the Legislature, as well as the President; they shall make him no compliments while in office, he shall receive nothing but a fixed compensation for his services. Give him then this compensation, let it be equal to his usefulness; but do not direct him to employ so much to one use, and so much to another; it cannot be called a compensation when you direct how it is to be expended; besides, it was wrong on another account; why should we pretend to direct him in the style in which he shall live? Let him have a salary, and expend it in the manner he shall think proper. Mr. PAGE was for striking out all the words, because he conceived it would be against the spirit of the constitution. It would be much more handsome to make one general provision, than to be thus particular in enumerating the articles of expense. It has been hinted, that these articles of expense would amount to half the sum mentioned in the report to be given as a compensation; if so, he would propose to strike out all that related to the subject, and so insert twenty-five or thirty thousand, as the House shall deem most eligible. Mr. STONE thought the President ought to be at liberty to live in any style he thought proper, and that the House ought to give him such compensation as they thought his services merited. If you furnish him with a house, horses, and carriages, you declare that this is the house, the horses, and the carriages which he shall use. There is certainly some degree of indelicacy in this; if he was a private gentleman, he would be at liberty to use such as he liked best. Suppose he dislikes them, and will not have them, he is guilty of a breach of the law, is it intended by the House to impeach him for it? I apprehend it is not, for no part of the constitution gives us a right to dictate to him on this head. He would rather let the President set the example how he ought to live, than see the Legislature direct him. Economy is by no means disadvantageous to the United States; if the President chooses to live in an economical manner, we ought not to prevent him. Mr. VINING thought, as the President was the representative of the nation, that there ought to be a proper degree of dignity attached to the office; he did not wish for splendor, but hoped to avoid the appearance of penury. If he was right in this opinion, the House had a right to show what they expected of the President, and, consequently, had a right to enter into the enumeration proposed in the report, and establish a uniform rule of conduct in the presidential chair. With respect to its constitutionality, his mind was perfectly easy, the constitution appeared to be silent; if so, the House had the right of interfering. He wondered how gentlemen could agree to provide plate and furniture, yet hesitate with respect to the clerks and secretary. Were not the latter as necessary as the former? If so, they ought to be equally provided for. The question on Mr. LAWRENCE'S motion was now taken, and decided in the affirmative. Mr. PAGE now moved to strike out twenty thousand dollars, and insert thirty thousand. Mr. SMITH inquired whether it was the intention of the House to saddle the President with the expense incurred, in consequence of their resolution of the 15th April. He understood that near ten thousand dollars had been laid out in purchasing furniture, and putting the house in order for his reception; it might be disagreeable to the President to take it. Perhaps he would be a considerable loser by such a bargain, and many of the things might be of a nature he disliked. He thought the House had been inconsistent with itself in ordering these things for the President, and then refusing to let them be applied to his use. Mr. SHERMAN thought the House need not be embarrassed on this point. The expense is to be paid by the United States, and the furniture will be their property, to do what they please with. Neither did he think the House inconsistent, because it was the object of the Legislature, by their former vote, to provide only for the temporary accommodation of the President. Mr. BENSON said, the business had been properly conducted. It was not in contemplation to throw the furniture or any other expense upon the President. He presumed the property belonged to the United States, but they would sell to the President such part as he chose to purchase. As to the house, the President was not confined to it; he might give it up when he pleased, and take another if he thought proper. The question on striking out twenty thousand and inserting thirty thousand was divided, and the first part was agreed to, but the latter rejected. It was now moved to strike out the words secretary and clerks. Mr. MADISON thought the Executive Magistrate ought not to have the power of creating officers; yet if he appointed his secretary and clerks, and they were recognized, either with respect to salary or official acts, they became officers of the Government. Mr. BENSON did not think it necessary to recognize any such officers; they were to be esteemed the mere instruments of the President, and not as sharing in the administration. The motion was put, and carried in the affirmative, and then the House adjourned. THURSDAY, July 16. _Compensation of the President, &c._ The House resumed the consideration of the Report of the Committee on the Compensation to the President, Vice President, and Members of Congress. The blank occasioned by striking out on Monday last, was now proposed to be filled. Mr. LIVERMORE moved to fill it with 18,000 dollars. Mr. BURKE said, there were some members of the committee in favor of 15,000 dollars; others indeed were for a much larger sum--he believed they went so far as 70,000 dollars; that 20,000 dollars was an accommodation, and as such he had agreed to it; but he was of opinion that 15,000 dollars was sufficient; that 20,000 had been once agreed to, but the expenses were added at a subsequent meeting of the committee; now, as the House had concurred in striking out 20,000 dollars, and a proposition was come forward more correspondent to his judgment, he should give it support. Mr. FITZSIMONS presumed it was not a question before the House what the report of the committee had been, nor were the sentiments any gentleman had there delivered to operate against the sense expressed by the committee in their report; if any thing done in committee was to influence the decision of the House, it must be the report, which spoke the sense of the majority. He further presumed, that when the 20,000 dollars were struck out, after all the expense had been erased, it was in the contemplation of the honorable mover to increase the sum so as to include both articles. It was with this view he voted in favor of striking out the 20,000 dollars. Mr. TUCKER said it might happen, that the expenses a President would incur at the first entering on the office would be so great as to injure his private fortune and distress his family. A quarter's salary might be insufficient to defray the expense; yet if the President continued but three months in office, this sum would be all he was entitled to. He thought it just and requisite to provide against accidents of this kind, if it could be done consistently with the constitution. With this object in view, he would propose that the President's compensation should be 26,000 dollars for the first year, and 16,000 dollars for every other year; that 10,000 dollars should be paid him in advance, on his coming to the chair, and the remainder in quarterly payments. Its amount, he said, would be nearly what was proposed by the gentleman from New Hampshire (Mr. LIVERMORE); and if the House was disposed to fix on that sum, as a proper compensation, they might, without any material change, admit his proposition; but if they meant to grant either a greater or a less sum, he hoped they would accommodate it to his principle. Mr. STONE said, that a sum of 25,000 dollars would be as small a sum as would answer the purpose; and provided that amount should be agreed to, the expense of the Executive would be less to the people than that of any Government in the world. If it is considered that the unavoidable expense will be great, and that the assistance of two or more secretaries will be necessary for the President to discharge his high and important trust, and that it cannot be expected that persons in such a station should be in straitened or dependent circumstances, this sum will not be found to exceed the absolute expense, with a moderate compensation for the services of the President. It is also a maxim of sound policy, that executive officers should be independent. Mr. WHITE.--Sir, I do not say that 25,000 dollars will or will not be sufficient; but in order to determine the necessary sum, I should wish to know the style in which the President is expected to live. If a style of magnificence and splendor is to be adopted, the sum is too small; and if economy is pursued, it may be too much. Until this is known, it will be extremely difficult to decide upon a proper sum; and when I give my vote, I wish to give it on such information as will satisfy my mind with respect to its propriety, and show my constituents the reasonableness of the measure. Will he live in a more expensive style than the former Presidents of Congress, or will he live nearly in the same? If so, what was that expense, or what will be the probable increase? How was that money applied, and what will now be necessary? If these questions can be answered, gentlemen may decide with more precision than they can while the subject is left afloat. Mr. BALDWIN said, it was impossible to get the information the gentleman required, the committee had made all the examination in their power with respect to the actual expense of supporting the office. They found former Presidents of Congress, whose office, by the by, was less important, and whose assistants were less numerous, expended 7,000, 8,000, and so on to 13,000 dollars annually. From this, some gentlemen were led to believe 17,000 dollars might be sufficient in this instance. But we were, said he, left without any thing satisfactory on this subject, and when the question was pressed on the committee, they varied from 15,000 to 25,000 dollars; we were therefore obliged to average the sum. We were satisfied that it must be left to experiment to determine what the allowance ought to be; and we were certain that the gentleman who had to make the first experiment would do it in such a manner as to give satisfaction to every body. He knows the way to blend dignity and economy; and I would rather, on this account, make the allowance too much than too little. I would, therefore, prefer making the experiment at 25,000 dollars; a sum that, in the President's hands, will give umbrage to no one. Mr. BOUDINOT made some further observations respecting the examination made by the committee, from which it appeared that the expenses of the President of the United States would exceed the expenses of the late President of Congress in a variety of cases. Two secretaries would be wanting; they must be men of abilities and information; but the committee conceived extra provision would be made for them by the House. If the whole was to be comprehended in one grant to the President, he would rather increase the sum reported by the committee than diminish it. Originally he was in favor of allowing 16,000; but then he thought the expense of secretaries, carriages, furniture, &c., was to be an additional allowance. Since the House had determined otherwise, he favored an addition to the 20,000 dollars. Mr. JACKSON was disposed to move 30,000 dollars; but he was willing to accommodate, and agree to 25,000 dollars. Mr. VINING observed, that the committee had no documents whereby they could form a judgment; they had no light to guide them. They could not foresee what ambassadors and foreign ministers might be sent to this country, nor the expenses the President must necessarily incur upon that account, to support the honor and dignity of the United States. He further remarked, that there are cases in which generosity is the best economy, and no loss is ever sustained by a decent support of the Magistrate. A certain appearance of parade and external dignity is necessary to be supported. Did I, said he, represent a larger State, I would speak with more confidence on the subject. We are haunted by the ghost of poverty; we are stunned with the clamor of complaint throughout the States. But under the auspices of an energetic Government, our funds will be established and augmented, and, I make no doubt, will be found sufficient to answer all the purposes of the Union. But our calculations ought not to be confined to the present moment alone. If it should be contended by any gentleman, that we have it not in our power to support the Government in a proper style, then there is an end of the business. We should remember that the present time is the season for organizing the Government. A patient and mature deliberation is requisite to investigate it, and by that means the amount of the civil list will be increased; in future, the sessions will be short, and the load of expense greatly diminished. He was opposed to any reduction of the sum, as he had always thought it too small, and would rather propose to fill the blank with 30,000 dollars. Mr. PAGE mentioned that 30,000 dollars had been proposed; though he thought the sum adequate, it was not sufficient to support pomp and parade. Those, he said, were entirely out of the question. He had made a calculation upon the probable necessary expenses, and found, that exclusive of that dignity and pageantry talked of, this sum would suffice. If he had contemplated the splendor and pageantry alluded to, he should not have thought of 30,000 dollars, nor 40,000 dollars, for he believed 100,000 dollars insufficient. But if the committee, upon investigation, were convinced that 20,000 dollars would be a compensation for his services, exclusive of an allowance for his expenses, when the whole was taken together it must at least amount to 30,000 dollars; for this reason he moved to fill the blank with that sum. The question on 30,000 dollars was put, and rejected. Mr. PAGE then moved 25,000 dollars, which was carried; affirmative 30, negative 17. The House then proceeded to the second part of the report, viz: "That there be paid in like quarterly payments to the Vice President of the United States, 5,000 dollars per annum." Mr. WHITE.--I do not like the principle on which this provision is made for the Vice President; there is nothing, I believe, in the constitution which gives him a right to an annual sum; it fixes no duty upon him as Vice President, requiring a constant attendance. He may be called upon to act as President, and then I would give him the salary of the President; at other times, he is to preside as President of the Senate, then I would pay him for his services in that character. On this principle, I shall move to strike out the clause; if that is agreed to, I propose to offer one, allowing him the pay of President, when he acts as President; and a daily pay during the time he acts as President of the Senate. Mr. PAGE would second the motion for striking out five thousand dollars, but with a different view from what had been intended by his worthy colleague. He wished it struck out, in order to introduce a larger sum. His idea was, that a proper proportion was not observed between the salary of the First and Second Magistrates. As to the utility of the office, he had nothing to say. He had no hand in forming the constitution; if he had, perhaps he should never have thought of such an officer; but as we have got him, we must maintain him; and those gentlemen who talk of respectability being attached to high offices, must admit, in a comparative view, that he is not supported with dignity, provided a situation derives its dignity from the money given him by way of salary; for his part, he thought money, abstractedly considered, could not bestow dignity. Real dignity of character proceeds from a much nobler source; but he apprehended the people of the United States, whose representative the Vice President was, would be displeased to see so great a distinction made between the President and him. Mr. SEDGWICK said, the arguments of the honorable gentleman from Virginia (Mr. WHITE) did not strike him with any force, nor did he see the impropriety spoken of. One reason why the pay of the members of the Senate and House is per diem is, because they contemplate their being together but a very inconsiderable part of their time; but I suppose, said he, that every gentleman who has considered the subject, has determined in his own mind that the Vice President ought to remain constantly at the seat of Government; he must always be ready to take the reins of Government when they shall fall out of the hands of the President; hence it will be necessary that he should, for this cause, if not for any other, preclude himself from every object of employment, and devote his whole time to prepare himself for the great and important charge for which he is a candidate. Under these circumstances, it is necessary that he should be provided with a constant salary, to support that rank which we contemplate for him to bear; I therefore conceive it must be such a perpetual salary as the President is entitled to receive. If the principles of the motion are inadmissible, it cannot be supported by argument, because very little information can be obtained on which to ground our reasoning. Mr. SENEY said, that, according to the constitution, a compensation is to be made for services performed. The Vice President may absent himself the whole time. He proposed giving him a handsome allowance while employed, but thought he ought to be paid per diem. Mr. SHERMAN adverted to the circumstance of salaries being allowed to Lieutenant Governors in the several States where such officers are appointed; so that, according to this mode, the grant made to the Vice President would correspond with the practice of the States individually. It appeared also, he said, to be necessary, inasmuch as this officer would be taken from all other business. Mr. WHITE.--If I thought, sir, the attendance of the Vice President as necessary as that of the President, I would not hesitate to allow him an annual salary; but I do not conceive it to be so necessary; it is not made so by the constitution. If he had been appointed Vice President as a perpetual counsel for the President, it would have altered the case; he would then have had services to render, for which we ought to compensate him. The honorable gentleman from Massachusetts (Mr. SEDGWICK) has intimated that he will be precluded from following any other business; there is nothing in the constitution which precludes him from following what profession he thinks proper. I am willing to pay him a full and liberal allowance for all the services he renders; but I do not think we are authorized to institute sinecures for any man. It ought to be considered that the Vice President has personal advantages from the appointment to that office; it holds him up as the successor of the President; the voice of the people is shown to be considerably in his favor; and if he be a deserving person, there will be but little doubt of his succeeding to the presidential chair; not that I would make this an argument to diminish his compensation. I would pay him amply for all the services he renders, at least as amply as the Government and circumstances of the people will admit. When performing the duties of President, he should receive the salary as such. The constitution has stipulated, that the President shall be compensated for his services, that we shall ascertain it by law; but it has not said one syllable with respect to the pay of the Vice President; hence I consider it would be improper to pay him on any other principle than in proportion to his services. If these require five thousand dollars a year, it may be made to amount to that sum, at so much per diem. As to the observations of the gentleman from Connecticut, (Mr. SHERMAN,) that Lieutenant Governors receive salaries in the several States, and therefore it will be proper to grant one to the Vice President, in order to comport with the practice of the States individually, I shall only remark, that in some States they have no such officer; in others, where they have such an officer, they give him no pay at all; in some, they are paid according to their attendance on business, in the manner that I propose to pay the Vice President. But admitting that every State had an officer of this kind, and that they paid him a salary like that proposed in the report, it would be no argument why the General Government should pursue a practice inconsistent with that economy and sense of propriety which it ought to be the study of the Representatives of the people of the United States to preserve to their constituents. Mr. MADISON.--I do not concur, Mr. Speaker, in sentiment, with my colleague on this subject. I conceive, sir, if the constitution is silent on this point, that it is left to the Legislature to decide according to its nature and its merits. The nature of the office will require that the Vice President shall always be in readiness to render that service which contingencies may require; but I do not apprehend it to be in our power to derive much advantage from any guides furnished by the examples of the several States; because we shall find them differently provided for by the different Governments. If we consider that the Vice President may be taken from the extremity of the continent, and be from the nature of his office obliged to reside at or within the convenient reach of the seat of Government, to take upon him the exercise of the President's functions, in case of any accident that may deprive the Union of the services of their first officer, we must see, I think, it will often happen that he will be obliged to be constantly at the seat of Government. No officer under a State Government can be so far removed as to make it inconvenient to be called upon when his services are required; so that, if he serve without a salary, it may be he can reside at home, and pursue his domestic business; therefore the application in that case does not appear to me to be conclusive. My colleague says that he will derive advantages from being in the line of appointment to the presidential chair. If he is to be considered as the apparent successor of the President, to qualify himself the better for that office, he must withdraw from his other avocations, and direct his attention to the obtaining a perfect knowledge of his intended business. The idea that a man ought to be paid only in proportion to his services, holds good in some cases, but not in others. It holds good in legislative business, but not in the executive or judicial departments. A judge will be sometimes unemployed, as in the case of the Vice President; yet it is found necessary to claim the whole of his time and attention to the duties for which he is appointed. If the principle of proportioning the allowance to the quantum of services performed obtains, it will be found that the Judiciary will be as dependent on the legislative authority, as if the Legislature was to declare what shall be their salary for the succeeding year; because, by abridging their services at every session, we could reduce them to such a degree, as to require a very trifling compensation indeed. Neither do I, Mr. Speaker, consider this as a sinecure; but that will appear from the reasons already given. The office of a judge is liable, in some degree, to the same objection; but these kinds of objections are levelled against the institutions themselves. We are to consider his appointment as a part of the constitution; and if we mean to carry the constitution into full effect, we ought to make provision for his support, adequate to the merits and nature of the office. Mr. AMES said that the Vice President's acceptance of his appointment was a renunciation of every other avocation. When a man is taken from the mass of the people for a particular office, he is entitled to a compensation from the public; during the time in which he is not particularly employed, he is supposed to be engaged in political researches for the benefit of his country. Every man is eligible, by the constitution, to be chosen to this office; but if a competent support is not allowed, the choice will be confined to opulent characters. This is an aristocratic idea, and contravenes the spirit of the constitution. Mr. SENEY.--This, sir, is a subject of a delicate nature, and the discussion of it rather disagreeable; but I think it my duty to declare my sentiments freely upon it. No argument has been adduced to convince me that the Vice President ought to receive an allowance any more than the other members of the Legislature. He cannot be compelled to perform any duty. This is an important subject, and ought to be maturely considered, as a great deal depends on the decision which will now take place. Mr. BURKE observed that the situation of our finances was so much embarrassed, as to dis-empower us from giving such ample salaries as we might, under different circumstances, think necessary; that it was but reasonable the Vice President should receive a compensation adequate to the second officer in the Government. He will be subject to extra expenses by living at the seat of Government, and will be obliged to maintain his dignity. Mr. B. further suggested that the sum might not be fully sufficient, but in our present situation, it was as much as we could afford. Mr. AMES, in his reply to Mr. SENEY'S observations, pointed out the difference of the situation of the Vice President and the members of the Legislature. Mr. SEDGWICK made some additional remarks of a similar nature, and further observed, it would be necessary that the members of the House should return and associate with their constituents, in order to learn their sentiments and their feelings, and witness their situation and wants, that they may consequently resume their former occupations: but with respect to the Vice President, his acceptance must be considered as an abandonment of every other pursuit; he must reside at the seat of Government, and will necessarily incur extra expenses in consequence of his office. Mr. STONE.--I am for giving such salaries to the officers of this Government, as will render them easy in their situation. But we are confined by the constitution; salaries are to be given for services performed; they are considered in no other light. The Vice President cannot be viewed in any other light than that of the President of the Senate. I am for his being paid per diem, but would allow him a generous support. I do not think five thousand dollars are sufficient; I would allow him a larger sum, which allowance, per diem, would amount to what would be fully adequate. Mr. SMITH, of South Carolina, said, that by the constitution the Vice President could not be considered as a Senator, and therefore could not, with any propriety, be paid as such. Considering him as an officer in the Government, next in dignity to the President, and particularly designated by the constitution, he must support a correspondent dignity in his style of living, and consequently ought to have a competent allowance for that purpose. He did not think five thousand dollars would be considered too much, and would vote for that sum. The idea of a daily allowance must be given up, as inapplicable to the situation assigned him by the constitution. He is there recognized as Vice President, and as such ought to be provided for. A daily pay of twenty-five or thirty dollars would appear a large compensation; yet if Congress sat but one hundred days, which, in all probability, would be the length of their future sessions, it would be insufficient for his support. But suppose it one hundred and fifty days; this, at thirty dollars per day, would come so near the proposed salary, that the saving would be an inconsiderable trifle; but if the session was longer, it might amount to more than is contemplated by any gentleman. Mr. PAGE was clearly for making the allowance by annual salary, because the office was permanent; a daily allowance could not be relied upon, because if the Senate sat but a few days, it would be incompetent, even at one hundred dollars per day; whereas, if the session was of long continuance, that sum would be more than the services could require, if they are to hold a comparison with those of the President. If the House agreed to strike out the five thousand dollars he would propose eight thousand, which was not one third of what was given to the President. Mr. BOUDINOT.--The question seems to turn merely on this point, whether the Vice President shall receive a per diem allowance, or an annual salary? The constitution ought to serve as the ground on which to determine it; therefore we are to consider the point of view in which this office is placed by that instrument. The second article calls him into view with the President; he is to be elected in the same manner as the President, in order to obtain the second best character in the Union to fill the place of the first, in case it should be vacated by any unforeseen accident. The constitution considers him a respectable officer; he is to supersede the President, when it shall happen that the First Magistrate dies or is removed on impeachment and conviction. These are the great objects of his appointment. His duty as President of the Senate is only collateral; consequently he ought to be respected, and provided for according to the dignity and importance of his principal character. If still inferior duties were attached to him, would it be an argument for reducing the compensation to an equality with what ought to be granted, if he performed such inferior duties only? I apprehend it is a principle of this nature which urges gentlemen on to press the amendment. I cannot see any reason for differing with the constitution on a point in which I think it ought to guide our decision. I think there is an affinity between the duration of the office and the compensation. The constitution establishes the office for four years; the compensation ought to be made commensurate with that idea. The question on Mr. WHITE'S motion was taken and lost, as was Mr. PAGE'S motion for striking out 5,000 and inserting 8,000 dollars. The proposition being then agreed to, The House proceeded to consider the following: That the daily pay of the members of the Senate, and House of Representatives, for their attendance at the time appointed for the meeting of their respective Houses, and for the time they shall be going to, and returning therefrom, allowing the travel of twenty miles for each day, be six dollars, and of the Speaker of the House of Representatives twelve dollars. Mr. SEDGWICK moved to amend this proposition, so as to give to the members of the Senate six dollars per day, and five to the members of the House of Representatives. His reason for introducing this distinction was, that the convention had made it in the constitution. The Senators are required to be of an advanced age, and are elected for six years. Now this term taken out of the life of a man, passed the middle stage, may be fairly deemed equal to a whole life; for it was to be expected, that few, if any, of the Senators could return to their former occupations when the period for retirement arrived; indeed after six years spent in other pursuits, it may be questioned whether a man would be qualified to return with any prospect of success. He did not say six dollars was more than a compensation for their services and expenses; but as economy ought to be particularly studied by the Legislature, he had moved to reduce it. He hoped gentlemen would pay some deference to the public opinion, on the present occasion; this he thought to be in favor of small salaries. Not but a different sentiment might prevail in some of the States; perhaps different circumstances might warrant the difference of opinion. It was probable that five dollars laid out in that part of the Union from which he came, would be more advantageous to the person, than a like sum laid out at the other extremity of the continent; but he believed, nevertheless, that something would be left to those gentlemen out of the five dollars per day, after their expenses were paid; but even if a little self-denial was the consequence of this reduction, it would do but little harm; whereas the precedent might have a salutary influence upon the future administration of the Government. Mr. JACKSON.--I am opposed to this discrimination, because all have alike abandoned their particular pursuits in life, and all have equally engaged in the service of their common country. On what principle can this distinction then be contended for? Is it expected that a Senator shall eat more, or drink more costly liquors, than a member of the House of Representatives? I presume it is not; their expenses must be nearly equal. I can see but one reason that can be assigned for this difference, which is, that the Senate may sit longer than the House; but considering they are to receive pay accordingly, this reason is of no weight. The duties of both Houses are equal, and the pay ought to be alike. I will submit to the gentleman who brought this motion forward, whether it is not much worse to the personal interest of men in business to be taken off in the prime of life, than after the successful pursuit of some profession at an advanced age, when the natural and proper time of retirement arrives; and if so, his argument falls to the ground. But if the reverse is true, it will not support his motion, because, if we look around, our senses will inform us that this House contains as venerable and aged members as any within the walls of the Senate; thus again we are upon a footing. Now, unless gentlemen mean that we should depress ourselves, and thereby set the Senate above us, I cannot conceive what foundation there will be for a discrimination. Mr. LEE.--I am in favor of the motion for discriminating between the Senate and this House, because the constitution has done it in a variety of modes. The qualifications are superior; a Senator must be a man advanced in life, and have been nine years a citizen of the United States; while a younger man who has been but seven years a citizen, may obtain a seat in this House. The constitution has made a difference in the mode of election. The Senators are selected with peculiar care; they are the purified choice of the people, and the best men are likely to be preferred by such a choice; those who have shown the fullest proofs of their attachment to the public interest, and evinced to their countrymen their superior abilities. In order to bring forth such characters to partake of our public councils, I think every motive of honor and of interest ought to be called into action. If men are not brought forth who will maintain their own dignity, and promote the public interest by a firm and independent conduct, regardless of every risk, regardless of the voice of calumny or popular clamor, our Government will soon lose its importance and its energy. I contemplate, Mr. Speaker, the Senate as a barrier between the Executive and this branch of the Legislature, shielding the people from any apprehension of being attacked by an aspiring Magistracy on the one hand, and on the other from being desolated by the anarchy often generated by a time-servingness to veering popularity. We shall gain these desirable objects at a trifling price, if we make a distinction of two or three dollars per day--a trifling allowance indeed to our most worthy sages. But, said the gentleman last up, there are as young men in the Senate as in this House; although there be, the time will come when none but the most venerable and respectable of our citizens, men whose hoary heads are silvered over with the honors of an experienced old age, men illustrious by their virtues and capacity, will have the public confidence ensured to them by the purity and notoriety of their principles. Now is the time to deliberate and view every future circumstance which may arise from our decision; the importance of this principle hereafter, is infinitely above every advantage which the present members may derive from it. By it alone you may secure dignity and permanency to the Government, and happiness under its administration. It is with difficulty, Mr. Speaker, that you can draw forth men of age and much experience to participate in the political concerns of their country. Retirement and reflection are incident to that period of life; they are sought for, and, when obtained, they are highly prized. The wise and virtuous sage, who from the monitions of nature has discovered that his remaining years will be but few, must be incited by every motive that can operate on the human heart to continue those labors which he seeks to bury the remembrance of in the deeps of solitude. Honor may stimulate the ingenuous mind; but interest is a great reason of action, and may be usefully employed to influence old age. What I have now urged is in favor of the constitutional distinction; I approve of the amendment, but I wish the sum had been left out, that the provision might be determined according to the sense of the House, and not affect the principal question of discrimination. I am satisfied, sir, that there is no heart within these walls but beats with patriotic ardor, and has determined to pursue the noblest object, the public good. Nothing but the anxiety I feel for this, as connected with the present question, could have induced me to trouble the House with a repetition of what was dilated upon, on a former occasion. Let it then be considered, that on our decision depend the dignity of the Legislature, and the perpetuity of that Government, the glory and the hopes of the people of America, which, if now disappointed, must be succeeded by confusion and gloomy despair. Mr. WHITE.--I object, sir, to a discrimination. I cannot perceive that difference in the constitution alluded to by the gentlemen. Among the Senators and the people in some of the ancient commonwealths, an artificial and political distinction was established, which was the case at Rome, in particular. There the Senators were considered as possessing some degree of divinity, and the rest of the people were not admitted to associate with them. Can it be supposed that the name of Senators will render those members superior to their fellow-citizens? I cannot see any difference in the general estimation between a Senator and a Representative, however great their sentiments may vary in their respective States; and cannot conceive why any discrimination should be made in their allowances. The independence of the members of this House may be injured by such a distinction; and the Senate, at some future day, may have it in their power to carry points, and be enabled to prolong the session, when it may be of great inconvenience to the House. Mr. MADISON was of opinion that a discrimination was necessary; he observed, that it had been evidently contemplated by the constitution, to distinguish in favor of the Senate, that men of abilities and firm principles, whom the love and custom of a retired life might render averse to the fatigues of a public one, may be induced to devote the experience of years, and the acquisitions of study, to the service of their country. And unless something of this kind is adopted, it may be difficult to obtain proper characters to fill the Senate, as men of enterprise and genius will naturally prefer a seat in the House, considering it to be a more conspicuous situation. Mr. MOORE did not see the propriety of the discrimination proposed; the business of each House is equal, or if there is a difference in their legislative concerns, it is in favor of the House. He had no idea of giving the public money for such an idle purpose as the support of a fanciful dignity and superiority. His idea of the business was, each member ought to be compensated for his services, and nothing further. Mr. VINING.--The arguments brought forward by my honorable friend from Virginia, (Mr. LEE,) have not proved satisfactory to my mind, that his favorite opinion with respect to discrimination is right. He has told us that the sages of America will be selected, and placed in this distinguished situation. True, sir, I expect venerable and respectable characters will find their way into every branch of the Government; but when I consider the mode in which the Senate is elected, I apprehend we may have there men whose wealth has created them the influence necessary to get in. If any thing is to be expected by this refined choice, it is that men of rank and opulence will draw the regard of the small and select circle of a State Legislature; while the Representatives in this House, being the choice of their fellow-citizens, among whom rank and dignity are rather unpopular, will consist of men in middling circumstances. Now if any thing is to be drawn from arguments like these, it is in favor of this House. But the whole of this is a subject on which we are better able to decide from our feelings, than from our discussions. I am against the motion for another reason, sir; it goes to reduce the compensation, which I think is already set too low, to furnish good security for the happy administration of the Government. In considering this subject, there are two important objects necessary to engage the attention of the Legislature. First, that the compensation be not made an object for indigence to pursue; and second, that it be not so low as to throw the business of legislation into the hands of rich and aspiring nabobs, but such as to compensate a man in the middle grade of life. These are generally men of business, who are fittest to conduct the concerns of their fellow-citizens. Now, in compensating this class of men, (for I would have the compensation proportioned to this class,) I do not take into consideration the sacrifices they make, by dedicating their time and abilities to the service of their country; but I confine myself merely to a compensation for their time and services. If the compensation is made an object for indigence, we shall have the sessions protracted to an extreme length, and the expense will be increased; if we make the reward barely commensurate with the services, you will have men of abilities, who will despatch the public business, and return to their private pursuits. If the business is done without pay, it may be productive of the most enormous evils. Were every member of the British House of Commons allowed a thousand guineas a year, they would be less venal; we should not find them purchasing their seats, and selling their votes, for places and pensions. The very money given in this way would furnish a handsome compensation for every member, and add something considerable, annually, to their sinking fund. I apprehend, in establishing a compensation, we shall put it in the power of gentlemen, while here, to live as independent as they can at home. Perhaps I hazard a conjecture, when I say there is not a gentleman on this floor, I am certain there are not many, but have found, from experience, that six dollars per day is adequate to that object; certainly it cannot be the wish of any man to make the public service unpleasant, by rendering the situation of the members of Congress less eligible than a solitary retirement from patriotic pursuits would be. Any man who lives decently, will find six dollars a day not more than sufficient to defray the expense of a casual residence in a splendid city. The experiment has been made. If a gentleman keeps a servant and his horses, and means to reciprocate the civilities he receives, I again assert the compensation is inadequate. It is true, we may live for two dollars a day; but how? There is a dignity attached to the situation of a Representative, with respect to his country; and the compensation might be seven or eight dollars per day, without granting the members more than a bare compensation. From all these considerations, I am induced to hope that gentlemen will indulge a little, and rather support an increase, than a diminution of pay. As to the discrimination, it has been once decided against by a considerable majority; I have no doubt but it will now meet a similar fate; but be the decision of the House what it may, with respect to the quantum, or manner of compensation, I shall never fear to deliver my sentiments. On the present occasion, I wish them known to my constituents, and I am much mistaken if they are not coincident with their own. Mr. SENEY.--I am sorry, sir, that the question of discrimination has been brought before the House. Can any reason be assigned for making this distinction? Are the services of the Senate of more importance than those of the Representatives? I think not. Gentlemen have brought forward the constitution upon this occasion, but I conceive it to be opposite to the very principle they mean to advocate. This will destroy the independence of the several branches, which is to be strictly observed. If a discrimination should be established in favor of the Senate, will it not naturally tend to create a sense of inferiority in the minds of the Representatives? And the time may come when they may find it their interest to become subservient to the views of the Senate. I feel so sensibly, sir, the impropriety and unconstitutionality of this measure, that had I the most distant idea it would comport with the sentiments of a majority of the members of this House, I should call for the yeas and nays on a division of the House upon the question. But as I do not conceive that to be the case, I shall waive the proposition for the present. Mr. SEDGWICK said, that whenever he had a motion to make before the House, he endeavored to satisfy himself of the reasonableness and propriety of it. If he thought it proper, he did not consider the mode of decision that might be adopted of any material consequence; but in determining the present question, he hoped the yeas and nays would not be called. There is a principle in mankind which revolts at the idea of inferiority; a proposition, for example, shall be made, that has for its object the establishment of a superiority (howsoever necessary;) that principle is alarmed and excited to opposition; to discuss such a question as the present, we ought to be divested of every partiality and prejudice, that might bias our judgment in deciding an affair that will not bear the test of reason and experience. I conceive the precedence of the Senate has been clearly pointed out by the Constitution. There are grades in society which are necessary to their very existence. This is a self-evident proposition; it is recognized by every civilized nation, and by the House in the report before us. For what reason have we made a difference between the President and Vice President? Is it not on account of his superior station and his dignity? And between the Vice President and the Senate? This distinction is likewise established by the constitution in the difference of the terms for which the members of the Senate and those of the House of Representatives are chosen. The time for which the Senate is chosen, demonstrates the propriety of a difference being made in the pay they ought to receive; the duties of their office require they should renounce every other avocation; their attention will be wholly taken up in the discharge of public business; therefore they should have an adequate and an independent allowance. The generality of the members being so far advanced in years, will drop every idea of engaging any more in their several professions, after having once engaged in the service of their country. Their age, wisdom, and experience, all warrant this discrimination. He concluded by saying, that the real dignity of the House was, he thought, so far from being diminished by adopting the proposition, that he conceived it was essentially connected with it. Mr. STONE thought the House ought not to assist in elevating one branch of the Government more above the other than the constitution had done. This had given influence to the Senate by a negative in the cases of treaties and appointments. It had given importance to the House, by vesting them with the sole power of originating money bills. But both these powers could be exercised without a discrimination being made in the pay of the members; therefore he inferred that it was not contemplated by the constitution to make any such distinction. A discrimination may eventually operate to the public injury; the House of Representatives may be desirous of terminating the session, but the Senate, finding the compensation they receive quite agreeable, may be inclined to protract it. He thought the true way of deciding on this subject, was to make the same allowance to both, and let it be such as not to induce them to protract the session on the one hand, or have a tendency to hurry over the business on the other. Mr. JACKSON said, in reply to the inquiry of Mr. SEDGWICK--"Why have we made a difference between the President and the Vice President?" that the whole of the President's time would be taken up in the duties of his station; that the Vice President might retire to his farm whenever he thought proper. We refer, said he, to the wisdom of the Senate; but how is this superior wisdom to be discerned? If on this account a distinction is to be made, it necessarily follows that a difference should be made between the members of this House, and those of the Senate. We cannot be too cautious how we establish an undue pre-eminence, and give an influence and importance to one branch of the Legislature over the other. All governments incline to despotism, as naturally as rivers run into the sea. Despotism makes its way gradually, by slow and imperceptible steps; despotic power is never established all at once; we shall, ere we are aware, get beyond the gulf, and then we shall be astonished how we reached there. The services of the Senate are not more arduous than ours; their proper business is legislation, and I will never consent to any discrimination. If I imagined the question would be determined in favor of discrimination, I would call the yeas and nays, and should it be determined in favor of it, I will still call them on purpose that my constituents may see that I have voted against a measure which I look upon as injurious to the Government. Mr. PAGE.--If he thought the discrimination proposed would have the tendency which some gentlemen apprehended, he would be the last man on the floor to support it. He would be as careful as any man how he extended the influence of any part of the Government, or gave it the least inclination towards aristocracy. But he apprehended gentlemen were deceived in their principle--he did not believe the doctrine that money confers importance, and he wished to evince to the world, that money, under this Government would have no such effect. The Senate having more duties to perform, may require a larger pecuniary gratification; but this will not add to their importance. It will require something of this kind to stimulate gentlemen to undertake the service; for his part, he might consent to come here for two years, in order to assist in public business, but no inducement, hardly, could engage him to undertake it for six years. On this consideration, he thought the Senate ought to have annual salaries, and to such an amount as would render their situation independent and eligible. If gentlemen are afraid of an aristocracy, they ought to be careful not to make the compensation too low, so as to exclude men of middling fortunes; the men of rank and distinguished opulence might serve without any pecuniary compensation; but the Government would not be safe, if it was exclusively in such hands. He wished to discriminate in favor of the Senate, but he would rather increase their pay to eight dollars, than reduce that of the members of this House, while he considered it but a moderate compensation. The question on Mr. SEDGWICK'S motion was taken, and lost by a considerable majority. The House having now gone through the report, it was _Ordered_, that a bill or bills be brought in, pursuant thereto, and that Messrs. BURKE, STONE, and MOORE, be a committee to prepare and bring in the same: with instructions to insert a clause or clauses, making provision for a reasonable compensation to the Secretary of the Senate, and Clerk of the House of Representatives, respectively, for their services. After which the House adjourned. WEDNESDAY, July 22. _Western Lands._ The House then resolved itself into a Committee of the whole House on the state of the Union, Mr. BOUDINOT in the chair; and, after some time spent therein, the committee rose and reported that they had had the state of the Union under consideration, and come to a resolution thereupon, which was read and then delivered in at the clerk's table, where the same was twice read, and agreed to by the House, as follows: _Resolved_, That an act of Congress ought to pass for establishing a Land Office, and for regulating the terms and manner of granting vacant and unappropriated lands, the property of the United States; that the said office be under the superintendence of the Governor of the Western Territory; that the land to be disposed of be confined to the following limits, viz: That the tracts or parcels to be disposed of to any one person, shall not exceed ---- acres; that the price to be required for the same shall be ---- per acre; and that every person actually settled within the said limits shall be entitled to the pre-emption of a quantity not exceeding ---- acres, including his settlement. _Ordered_, That a bill or bills be brought in, pursuant to the said resolution, and that Mr. SCOTT, Mr. SYLVESTER, and Mr. MOORE, do prepare and bring in the same. THURSDAY, July 23. _Home Department._ On motion of Mr. VINING, the House resolved itself into a Committee of the Whole on the state of the Union, Mr. BOUDINOT in the chair. Mr. VINING introduced a resolution for the adoption of the committee, by which it is declared: That an Executive department ought to be established, and to be denominated the Home Department; the head of which to be called the Secretary of the United States for the Home Department; whose duty it shall be to correspond with the several States, and to see to the execution of the laws of the Union; to keep the great seal, and affix the same to all public papers when necessary; to keep the lesser seal, and to affix it to commissions, &c.; to make out commissions, and enregister the same; to keep authentic copies of all public acts, &c., and transmit the same to the several States; to procure the acts of the several States, and report on the same when contrary to the laws of the United States; to take into his custody the archives of the late Congress; to report to the President plans for the protection and improvement of manufactures, agriculture, and commerce; to obtain a geographical account of the several States, their rivers, towns, roads, &c.; to report what post-roads shall be established; to receive and record the census; to receive reports respecting the Western Territory; to receive the models and specimens presented by inventors and authors; to enter all books for which patents are granted; to issue patents, &c.; and, in general, to do and attend to all such matters and things as he may be directed to do by the President. Mr. BENSON objected to some of the duties mentioned in the resolution. He thought the less the Government corresponded with particular States the better, and there could be no necessity for an officer to see to the execution of the laws of the United States, when there was a Judiciary instituted with adequate powers. Mr. WHITE was not convinced that there was a necessity for establishing a separate department for all or any of the duties contained in the resolution. The correspondence with the States belonged to the Executive. To see to the execution of the laws was the duty of the Judiciary. The great seal might be kept by the Secretary of Foreign Affairs; the lesser seal might be deposited in the same hands. Commissions might be made out by the departments to which the officer is connected. The Secretary of the Senate and Clerk of the House might transmit the public acts, and keep records thereof. What have Congress to do with the acts of States? If they interfere with the constitutional powers of the Government, the Judges will prevent their operation. The papers of the late Congress may be distributed among the officers to which they relate; the rest may be deposited with the officers of Congress. The want of the reports on manufactures, agriculture, and commerce, may be supplied by Congress. The post-roads may be left to the Postmaster General. The census must be returned to Congress, and they will preserve it among their files. And it can hardly be thought necessary to establish a great department for the purpose of receiving the models, specimens, and books presented by authors and inventors. If none of these things are requisite to be done by a great department, why should the United States incur the expense which such an arrangement must necessarily draw along with it. Mr. HUNTINGTON thought the Secretary of Foreign Affairs was not so much overcharged with business but that he might attend to the major part of the duties mentioned in the resolution. Mr. VINING said, he had waited until the great Executive departments were established; but none of those had embraced the duties contained in his proposition, which he conceived to be of great importance; many of the duties were as essential as those of any other department, except the Treasury. As for their belonging to the Executive, as was said by the gentleman from Virginia, he admitted it; but they were, nevertheless, as proper to be put into the hands of a principal officer under the President, as the War office, or office of Foreign Affairs; the duties of these were especially within the Executive department of the Government. He conceived that the President ought to be relieved from the inferior duties of his station, by officers assigned to attend to them under his inspection; he could then, with a mind free and unembarrassed with the minutiæ of business, attend to the operations of the whole machine. If the office was admitted to be necessary, and he was certain the performance of the duties were useful and essential, the expense could be no solid objection, because the information it would furnish would more than counterbalance that article. The question he conceived to be reduced to this, whether a confidential officer would not be more useful than any other, and whether the duties could be distributed among the officers already instituted. For his part, he conceived most of them foreign to either of those officers; and that they could not be performed with advantage any other way than by an officer appointed specially for the purpose. He thought every gentleman would admit that the duties were important, and he assured them that his only reason for bringing the motion forward was, to provide for the public good. He had no personal motives in pressing it; he disclaimed every idea of serving any particular man by the arrangement, and rested it solely upon its merits. Mr. SEDGWICK believed the honorable gentleman in his assertions, that he had no personal motive in pressing this business. He believed that he thought it essential, and if his sentiments were the same, he would join the gentleman in supporting the motion; but after duly considering the subject, he was inclined to believe that the office was unnecessary, and that it would be squandering the public money, at a time when the greatest economy is requisite. He thought the principal part of the duties might be assigned to the Secretary of Foreign Affairs; and he would, if the committee negatived the present motion, introduce another for that purpose. Mr. GERRY thought the burthens of the people would be sufficiently great in providing the supplies absolutely necessary for the support of the Government; therefore it would be improper to add expenses which might possibly be avoided. The people are viewing the proceedings of Congress with an attentive solicitude, and if they observe that we erect offices for which there is no apparent necessity, they will be apt to think we are providing sinecures for men whom we favor; they will reluctantly pay what is extracted from their earnings to a Government which they think is regardless of economy. They will suspect a further view in the change of Government. They will suppose that we contemplate the establishment of a monarchy, by raising round the Executive a phalanx of such men as must be inclined to favor those of whom they hold their places. Mr. VINING.--Why do gentlemen say that such an office is unnecessary, when they are forced to admit that all the duties are essential? Or how can they say it is more expensive to establish it in this way than in another? Suppose these duties distributed in the manner which some gentlemen have mentioned, is it not fairly to be presumed that the departments to which any of them are attached, will require an extra pay for these extra services? If so, will there be any economy in this mode of procedure? All that is to be wished for, is to have a confidential person employed, let his salary be what you please: if it is not worth fifteen hundred dollars per annum, let it be five hundred. But it would be better to have a principal to manage the business than to have it consigned to clerks in the other departments. Mr. LAWRENCE said that something was necessary to be done with respect to the business brought forward by the honorable gentleman from Delaware. He conceived that an officer of the rolls, or some inferior officer, ought to be appointed to transact the business detailed in the resolution; he did not insist upon making a great department. Mr. SEDGWICK agreed with the gentleman from New York; but, he thought, the business might be thrown into some other department, and save to the Union the expense of the one which the gentleman from Delaware wished to establish, by the name of the Home Department. He thought the resolution proposed altogether so improper, that he hoped the committee would rise. A desultory conversation arose, whether the committee should decide upon the resolution or not; after which a question was taken on the rising of the committee, and decided in the negative. Then the question was put on the first part of Mr. VINING'S proposition, viz: "That an Executive Department ought to be established, to be denominated the Home Department;" and lost by a considerable majority. FRIDAY, July 24. _Committee of Ways and Means._ Mr. FITZSIMONS.--The finances of America have frequently been mentioned in this House as being very inadequate to the demands. I have ever been of a different opinion, and do believe that the funds of this country, if properly drawn into operation, will be equal to every claim. The estimate of supplies necessary for the current year appears very great from a report on your table, and which report has found its way into the public newspapers. I said on a former occasion, and I repeat it now, notwithstanding what is set forth in the estimate, that a revenue of three millions of dollars in specie, will enable us to provide every supply necessary to support the Government, and pay the interest and instalments on the foreign and domestic debt. If we wish to have more particular information on these points, we ought to appoint a Committee of Ways and Means, to whom, among other things, the estimate of supplies may be referred, and this ought to be done speedily, if we mean to do it this session. Mr. GERRY said, the estimate reported by a committee was as accurate as possible. From this it appeared, that eight millions of dollars would be necessary for the support of Government, for the interest and instalments becoming due, and for the arrearages already due. He remarked, that we had been already dunned on this subject by foreigners, and that Congress would have to make provision for their payment. If three millions of dollars were employed to this use, it would only be carrying the arrearages into another year; but, as they must be paid at last, he recommended making an immediate exertion as a better way of giving satisfaction than procrastination would be. He thought it best to lay the real situation of this country before the House, and not endeavor to make things appear better than they really are. With respect to the publication of the estimate in the papers, he knew nothing about it; he admitted that it was such a one as ought not to be published by order of Congress. He approved of the idea of appointing a Committee of Ways and Means, if it were only to ascertain what part of the interest on the debt should be paid, and what of the principal extinguished within the current year, from the funds already provided. FRIDAY, July 31. Mr. SCOTT, from the committee appointed for the purpose, brought in a bill for establishing a Land Office for the Western Territory, which was read and laid on the table. On motion, _Resolved_, That a standing committee be appointed to examine the enrolled bills, and to present the same to the President for his approbation and signature. Messrs. WHITE and PARTRIDGE were accordingly appointed. Mr. WHITE, of the committee appointed to examine into the measures taken by Congress and the State of Virginia, respecting the lands reserved for the use of the officers and soldiers of said State, &c., brought in a report, which was read and laid on the table. The House then resumed the consideration of the amendments agreed upon in Committee of the Whole, to the bill for registering and clearing vessels; which being finished, the bill was ordered to be engrossed for a third reading on Monday next. A message from the Senate informed the House that they had passed the bill for establishing the Treasury Department, with amendments; to which they desired the concurrence of the House. Mr. SEDGWICK, from the committee appointed for the purpose, brought in a bill to provide for the safe keeping of the acts, records, and great seal of the United States, for the publication, preservation, and authentication of the acts of Congress, &c.; which was read and laid on the table. MONDAY, August 3. A message from the Senate informed the House that they had passed the bill for the establishment of light-houses, beacons, and buoys, with several amendments; to which they desired the concurrence of this House. The amendments of the Senate were immediately considered and agreed to. The engrossed bill for regulating the coasting trade was read a third time; and, on motion, recommitted to a Committee of the Whole, to be taken up to-morrow. The bill for establishing a Land Office for the Western Territory was read a second time, and made the order of the day for Thursday. The bill to provide for the safe keeping of the acts, records, great seal, &c., was read, and made the order of the day for Friday. The report of the committee on amendments to the constitution was, on motion of Mr. MADISON, made the order of the day for Wednesday sennight. Mr. BENSON made a motion as follows: _Resolved_, That a committee be appointed to join with a committee of the Senate to be appointed for the purpose, to consider of and report when it will be convenient and proper that an adjournment of the present session of Congress should take place; and to consider and report such business now before Congress, necessary to be finished before the adjournment, and such as may be conveniently postponed to the next session; and also to consider and report such matters not now before Congress, but which it will be necessary should be considered and determined by Congress before an adjournment. TUESDAY, August 4. _Compensation of Members._ Mr. BURKE, from the committee appointed for the purpose, brought in a bill for allowing a compensation to the members of both Houses, and to their respective officers; this bill provides that the compensation shall be as follows, viz: To each member of the Senate and House, six dollars per day. The Speaker of the House, twelve dollars per day. To the Secretary of the Senate, and Clerk of the House, each fifteen hundred dollars a year, and two dollars a day each during the session of the Legislature; one principal clerk to each, at three dollars a day during the session; one engrossing clerk to each, at two dollars a day during the session. Serjeant-at-arms, three dollars a day during the session. Doorkeeper to the House and Senate, each seven hundred and thirty dollars a year. Assistant doorkeepers, during the session, one dollar and fifty cents a day each. This bill was laid on the table. WEDNESDAY, August 5. The House then resolved itself into a Committee of the Whole, on the bill for allowing compensation to the members of the Senate and House of Representatives of the United States, and to the officers of both Houses, Mr. BOUDINOT in the chair. Mr. GOODHUE moved to strike out six dollars, as the pay of each member per diem. Mr. CARROLL inquired, if it was not out of order for the committee to alter principles, after they had been settled by the House. Mr. PAGE wanted to know whether the gentleman meant to increase or diminish the sum, for he presumed it was not intended to be left a blank altogether; but he hoped the House would do neither. It had been settled, after mature deliberation, at six dollars; the House certainly thought that sum enough, and if it was more, that it would be too much; he was satisfied with this determination, and would adhere to it. Perhaps the gentleman meant to strike out the six dollars, in order to make a discrimination between the members of this House and the Senate; if so, he had better move to increase the compensation of the Senators, and here he would second him, because he thought their services required more. He would once more mention his fears relative to a small sum. He dreaded the abuse of economy, and was suspicious that a parsimonious provision would throw the Government into the hands of bad men, by which the people might lose every thing they now held dear. He thought few would serve for a smaller sum than he would, and he was confident the allowance was as moderate as any man could expect. Gentlemen who come a great distance are put to considerable expense, and their domestic arrangements destroyed: instead of laying up money by their attendance here, it was almost certain they would spend part of their private estates. If it is meant that the republic should be provided with good and wholesome laws, a proper provision should be made to bring into the councils of the Union such men as are qualified to secure them well; it is not to be expected that the spirit of patriotism will lead a man into the perpetual habit of making such exertions and sacrifices as are too often necessary in the hour of danger. No man ought to be called into the services of his country, and receive less than will defray the expenses he incurs by performing his duty. If he does, the public affairs, in the time of tranquillity, will get exclusively into the hands of nabobs and aspiring men, who will lay the foundation of aristocracy, and reduce their equals to the capacity of menial servants or slaves. Mr. SEDGWICK seconded the motion for striking out. He had endeavored to view this subject impartially, uninfluenced by any local considerations or circumstances; and under these impressions, he was led to believe, from all the information he had received, whether from abroad, or from an examination in his own mind, of the effects it would produce, that it would be expedient to establish the compensation at a lower sum. He really did not see any solid ground for the apprehensions which his worthy friend from Virginia (Mr. PAGE) had discovered. He had heard it often said, that if salaries and allowances to public officers were small, you would not be able to command the services of good men; but it was contradicted by the fact. He would instance the late appointments, and ask gentlemen whether they conceived better men could have been procured, if the compensation had been doubled? If it was fair to reason by experience and analogy, he should conclude there would be no difficulty in procuring good and respectable men, to serve in this House, at a less rate than six dollars per day. He had never yet observed that men of small property shrunk from the expense of serving in the councils of their country. He thought the practice of the States was opposed to so high a compensation; many of the State Legislatures allowed their members a dollar and ten shillings a day, and yet they were served by good men. He had been informed that it was thought by men of sense and intelligence, that although six dollars might not be too great an allowance for the services of the members of this House, yet, considering the present circumstances of the people, it would be good policy to reduce the same. He inclined to this opinion himself. Impressed with these ideas, and knowing that it was generally the opinion of the people, that six dollars was more than a moderate compensation to the members of this House, he should support the motion for striking out with a view to reduce the sum. Mr. VINING said, the gentleman from Maryland (Mr. CARROLL) had taken the subject up in a proper point of view, by inquiring into the point of order. He begged gentlemen to consider the manner in which the subject had been discussed already--twice in the House, and twice in committee; every decision had been the same; why should the point so often determined be again agitated? It is contrary to all parliamentary proceeding, and the House will never know when principles are settled. He was certain that six dollars was but a moderate compensation, if a member is to reside at the metropolis of the United States. He would admit that they could live for less, in some more central part of the country; but the gentlemen from the eastward should recollect that a small allowance would be an argument for removing Congress from this city, and when that time arrived, he should consent to a lower sum, but not till then. Mr. FITZSIMONS did not expect to hear the subject discussed again; he thought it unnecessary, because he believed every gentleman would decide more upon his own feelings than upon the arguments that could be adduced; he would, however, just remind the committee, that six dollars was about the average of what the members from the several States had under the late confederation. Mr. SEDGWICK.--According to the observation made by the gentleman from Pennsylvania, it will be deemed insolent to reason on this subject: what I offered before, I brought forward with candor; but shall we be precluded from debate, because a subject has been once discussed? Sir, when I moved, some days ago, to reduce the pay of the members to five dollars, I was rather indifferent about it; but since then, I have been so well convinced of the necessity there is for such a measure, that I cannot decline pressing it once more upon the committee. Mr. STONE thought the public mind would not be much influenced by the trifling difference between five and six dollars. They pay greater regard to the decisions of the House, on more important subjects. The gentleman from Massachusetts says his correspondents inform him, that the public mind is agitated on this subject; if we are to judge what is the state of the public mind from what our friends say, I should be apt to think the public mind quite unconcerned on the present question; for among all my correspondents, not one has deigned to notice it. The question was now taken on striking out, and there appeared sixteen in favor of it, and thirty-five against it; so the motion passed in the negative. Mr. MADISON renewed the motion for making a difference in the pay of the members of the Senate and the House of Representatives, which was also lost. Mr. GOODHUE moved to strike out twelve dollars, the pay assigned the Speaker, and insert ten. Mr. PAGE hoped his motion would share the fate of the two last; he was certain that twelve dollars was not more than a compensation for the Speaker's services; three times the sum would not induce him to accept such a situation. Mr. BURKE was against the motion, because he thought that twelve dollars was not a reward for the Speaker's labor. The Speaker of the House of Commons in England has an annual salary of £8000 sterling. Mr. CARROLL thought the Chair of the House of Representatives was one of the most important and dignified offices under the Government, and as such ought to be provided for. This motion was lost by a great majority. The committee rose and reported progress. THURSDAY, August 6. _Compensation of Members._ The House then again went into a Committee of the Whole, on the bill for allowing a compensation to the members of Congress; and after some time spent therein, the committee rose and reported the bill as amended: then the House proceeded to consider the same. Mr. THATCHER moved to insert five dollars instead of six, as the pay of the members. Mr. PARTRIDGE observed, that money was more valuable now than it had been some years past; if, therefore, six dollars was the average of what the delegates received heretofore, five dollars was now equal to that sum. In short, he was convinced that six dollars was too much, and in justice to his constituents, and his own conscience, he would vote against it, and perpetuate his vote by calling the yeas and nays upon the question. Mr. GERRY.--I was not present when this subject was last before the House, therefore I cannot say what was understood on this point; but I have seen some account of the debate in the papers, from which I am led to believe, that gentlemen view this matter in a very narrow point of light. It appears to me a question, in which one's popularity is more concerned than any thing else. Gentlemen perhaps suppose that by voting for five instead of six dollars, they will establish such a character for economy and patriotism as will redound to their honor; but I can easily conceive, that men of knowledge and sentiment, yes, our constituents in general, will discover, in a glaring light, the ruinous consequences of such a measure in a very short period. The difference of pay, as it now stands in the bill, and what my colleague has moved for, is one dollar a day, and on this important question the yeas and nays are to be called. For my part, I shall deliver my sentiments freely; I am willing to leave the question to the people to decide; I care not about the pay, and I can assure them I never wish to have a seat in this House again: but I wish to guard against the subversion of the public liberty--against the introduction of pensions--against exposing the Legislature to corruption. I would have gentlemen consider the principles upon which they are to pay the President, their Judges and themselves; the constitution says, the members of this House and the Senate shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. The President shall receive, at stated times, a compensation for his services, neither to be increased nor diminished; the Judges shall, at stated times, receive for their services a compensation, not to be diminished during their continuance in office; hence it appears that the provision for the three branches is to be made on the same principle, namely a compensation for their services. Now, though it is certainly a little embarrassing that we should have to estimate the value of our own services, yet we are bound to do it, and that upon a fixed principle. It has been said, that the Parliament of Britain receive no pay. This may be the case, but if they examine back, they will find that pay, of a mark per day, was regularly established for them. If we consider the difference of the value of money two or three centuries ago, we shall find this no inconsiderable allowance. But the policy of the British ministry has been, of late, to extend the influence of the Crown; the pay of members has dropped into disuse; but every one knows by what means a majority in Parliament is obtained and secured. Now, such is the extent of these means, that I venture to say, two important members of the House of Commons receive more per annum than the whole compensation given to the members of both Houses of Congress. I leave it to the world to judge, whether the people are likely to be better served by men who receive their wages of the Monarch, and who own themselves the servants of the Crown, or by those who are immediately paid by and dependent upon themselves. While Britain had funds enough to support this plan, they did tolerably well; but when the evil extended itself, and they feared they could no longer continue it without having recourse to other means, they bethought themselves of unconstitutional ones; they were desirous of obtaining a revenue out of this country, and placing upon our establishment men whom they could not provide for at home. This cause lost them America, and this cause will lose them every dependency, where they attempt to play the like game. From this view, the importance of an independent Legislature may be seen. Will gentlemen then say, that to gratify a thoughtless regard for economy, they will risk the most invaluable part of the Government? If gentlemen say it is justice to their constituents, I am willing to appeal to their tribunal; let them know the reason upon which we act, and I will abide by their determination; but I am against being influenced by an apprehension that the people will disapprove our conduct. I am not afraid of being left out, even if it were thought a disgrace to be left out. I would risk that disgrace rather than agree to an establishment which I am convinced would end in the ruin of the liberties of my fellow-citizens. It would give my heart more satisfaction to fall the victim of popular resentment, than to establish my popularity at the expense of their dearest interest. As I mentioned before, the principle upon which we fix our own pay must go through the other branches of the Government. Your President ought to be retrenched to 16 or 18,000 dollars; your judges must be kept poor; and I leave gentlemen to consider the happy consequences arising from a dependent and corrupt Judiciary. Your Legislature may be corrupt, and your Executive aspiring; but a firm, independent Judiciary will stop the course of devastation, at least it will shield individuals from rapine and injustice; but remove this security, and tyranny and oppression will rush forward as a flood, and overwhelm the country. It has been said, that the proposed compensation bears no proportion to the pay of the members of the State Legislatures; let me ask, do members of the State Legislatures forego their business? Do they leave their State and relinquish their occupations? Does the lawyer neglect his client? Does the merchant forego his commerce, or the farmer his agriculture? No, sir, the short period they are in session, and the opportunity of being in the vicinity affords them of going home, even during their sitting, enables them to pursue their other avocations, while performing their duties in the Legislature. But are not gentlemen who come from the most distant parts of the Union, compelled to relinquish every thing to attend here? The representation from the States is so small, that a member can be ill spared at any time; his absence must give him pain, when even that absence is necessary, but cannot be often allowed. In short, I would have the allowance such, as to secure the services of men of abilities in every rank of life; or if that cannot be obtained, I would have all that part of the bill struck out, which relates to a compensation for the services of the members of this House. Mr. PAGE said, if gentlemen were satisfied that five dollars per day was enough to compensate them and defray their expenses, because they resided in a part of the Union where every thing was to be procured so much cheaper, they might receive that sum and leave the residue in the Treasury; by this means they would demonstrate their love of economy and disinterestedness. Mr. VINING thought gentlemen who were satisfied with four or five dollars, might move to amend the clause, so as to make it read "not exceeding six dollars per day," and then they might charge as much less as they deemed prudent. Mr. BOUDINOT said, that whatever measures he supported, he did it upon principle, not from a desire of acquiring popularity; he was satisfied that six dollars per day was not extravagant compensation, but considering the situation of the country, and the delicacy of their own situation, he would vote for five dollars, and he thought it sufficient to secure men of ability. He asked the gentleman from Massachusetts (Mr. GERRY) if he expected the paltry consideration of getting a dollar a day more, was to induce men of abilities and integrity to come forward and render their country their services? He admitted that many gentlemen would find it difficult to bear all their expenses with five dollars a day; but the compensation could not be on a principle of discrimination, and therefore the House could not make particular provision for such gentlemen. Others might think a less sum sufficient, but no discrimination could here take place; it was therefore necessary to accommodate, and upon this principle he hoped the House would agree to five dollars per day; nor would this be any variation from the principle established by the committee who reported the bill. They had taken the pay of the delegates to the late Congress, and struck an average, which was found to be about five dollars and a half; they had reported six, but from the principles he had before mentioned, he thought it better to agree to five. Mr. GERRY.--The gentleman from Jersey, who was last up, says he does not think six dollars per day more than sufficient; but that he will, from a principle of delicacy, vote for five. I am as great a friend to delicacy as any man, but I would not sacrifice essentials to a false delicacy. It seems, from such sentiments, as if we were afraid to administer a constitution which we are bound to administer. How are those sentiments reconcilable to the oath we have taken? The constitution requires that we shall, by law, compensate the services of the members of both Houses. It has been said, that money is now more valuable than it was a few years since. I admit the fact, sir, but four dollars per day was better under the old plan of Government than six or eight under this, because a delegate was then engaged for the whole year, but now he is to attend at intervals. Some members were continued several years successively, and consequently found it more advantageous. But this mode of reasoning is fallacious; the question ought to be determined upon its own merits. But if gentlemen are for sacrificing justice and propriety to delicacy, or any other motive, let them come forward and agree to what I mentioned before; let them strike out all that relates to their own compensation; they are called upon by their own arguments to do this. Mr. SEDGWICK did not rise to speak to the question, but merely to reply to some observations that have fallen from the gentlemen who opposed the present motion, particularly his colleague. The want of candor and liberality might render gentlemen unpleasant in their situation; but the consequences arising from such causes, were often still more unpleasant. His colleague had insinuated, in a pointed manner, that the gentlemen who were in favor of a reduction, were actuated by motives not only improper and unworthy of a man of character, but such as appeared base to his mind. It was said, that those who proposed this reduction, did it merely to court popularity. Whether the gentleman, his colleague, who brought forward the motion to-day, sacrificed more at that shrine than his colleague who had opposed it, he left to those to determine who noticed their conduct; but he believed they could never be charged with such meanness. For his own part, if he had sacrificed in this way, as his conduct had always been consistent with his sentiments, it must have been known, and his character would long ere this have been blasted in the manner it would have justly deserved. If he had done it heretofore, he hoped the stigma would not be affixed upon him, for a conduct founded upon the solid and substantial reasons he had advanced when the subject was last before the House. Mr. BOUDINOT.--The gentleman from Massachusetts makes me say, that six dollars a day is not too much. I said it was not extravagant, but more than I thought was proper upon due consideration of the circumstances of this country. This is still my opinion, and upon it I shall ground my vote. I believe no gentleman in this House regards his popularity, when set in competition with his duty; my conduct has ever been open, and I leave the world to judge from that what are my principles. I shall therefore take no further notice of what has been said on that subject, but conclude with wishing, for the honor of the House, and the dignity of the gentlemen, that all our debates may be conducted with candor and moderation. Mr. AMES wished the call for the yeas and nays was withdrawn; because he thought they lost their usefulness by a too frequent use. He was in favor of the motion, but he did not wish to have his name entered on the minutes on that account. Mr. PARTRIDGE said, it was well known he never courted popularity; he never sought a seat in this House, or any other public body; but he insisted upon his right, as a member, to call for the yeas and nays, when he thought the public interest might be benefited by it; however, as the bill was not to be finished to-day, he would waive that call. The question was taken on Mr. GOODHUE'S motion, and passed in the negative, by a large majority. The bill was ordered to be engrossed, and the House adjourned. THURSDAY, August 13. _Amendments to the Constitution._ The House then resolved itself into a Committee of the Whole, Mr. BOUDINOT in the chair, and took the amendments under consideration. The first article ran thus: "In the introductory paragraph of the constitution, before the words 'We the people,' add 'Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone.'" Mr. SHERMAN.--I believe, Mr. Chairman, this is not the proper mode of amending the constitution. We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. We might as well endeavor to mix brass, iron, and clay, as to incorporate such heterogeneous articles; the one contradictory to the other. Its absurdity will be discovered by comparing it with a law. Would any legislature endeavor to introduce into a former act a subsequent amendment, and let them stand so connected? When an alteration is made in an act, it is done by way of supplement; the latter act always repealing the former in every specified case of difference. Besides this, sir, it is questionable whether we have the right to propose amendments in this way. The constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the State Governments. Again, all the authority we possess is derived from that instrument; if we mean to destroy the whole, and establish a new constitution, we remove the basis on which we mean to build. For these reasons, I will move to strike out that paragraph and substitute another. The paragraph proposed was to the following effect: _Resolved by the Senate and House of Representatives of the United States in Congress assembled_, That the following articles he proposed as amendments to the constitution, and when ratified by three-fourths of the State Legislatures shall become valid to all intents and purposes, as part of the same. Under this title, the amendments might come in nearly as stated in the report, only varying the phraseology so as to accommodate them to a supplementary form. Mr. MADISON.--Form, sir, is always of less importance than the substance; but on this occasion, I admit that form is of some consequence, and it will be well for the House to pursue that which, upon reflection, shall appear to be the most eligible. Now it appears to me, that there is a neatness and propriety in incorporating the amendments into the constitution itself; in that case the system will remain uniform and entire; it will certainly be more simple, when the amendments are interwoven into those parts to which they naturally belong, than it will if they consist of separate and distinct parts. We shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment. It will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons; whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work. Nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law, and, with its amendments and alterations, reduce it into one act. I am not, however, very solicitous about the form, provided the business is but well completed. Mr. SMITH did not think the amendment proposed by the honorable gentleman from Connecticut was compatible with the constitution, which declared, that the amendments recommended by Congress, and ratified by the Legislatures of three-fourths of the several States, should be part of this constitution; in which case it would form one complete system; but according to the idea of the amendment, the instrument is to have five or six suits of improvements. Such a mode seems more calculated to embarrass the people than any thing else, while nothing in his opinion was a juster cause of complaint than the difficulties of knowing the law, arising from legislative obscurities that might easily be avoided. He said, that it had certainly been the custom in several of the State Governments, to amend their laws by way of supplement. But South Carolina had been an instance of the contrary practice, in revising the old code; instead of making acts in addition to acts, which is always attended with perplexity, she has incorporated them, and brought them forward as a complete system, repealing the old. This is what he understood was intended to be done by the committee; the present copy of the constitution was to be done away, and a new one substituted in its stead. Mr. LIVERMORE was clearly of opinion, that whatever amendments were made to the constitution, they ought to stand separate from the original instrument. We have no right, said he, to alter a clause, any otherwise than by a new proposition. We have well-established precedents for such a mode of procedure in the practice of the British Parliament, and the State Legislatures throughout America. I do not mean, however, to assert that there has been no instance of a repeal of the whole law on enacting another; but this has generally taken place on account of the complexity of the original, with its supplements. Were we a mere legislative body, no doubt it might be warrantable in us to pursue a similar method; but it is questionable whether it is possible for us, consistent with the oath we have taken, to attempt a repeal of the constitution of the United States, by making a new one to substitute in its place; the reason of this is grounded on a very simple consideration. It is by virtue of the present constitution, I presume, that we attempt to make another; now, if we proceed to the repeal of this, I cannot see upon what authority we shall erect another; if we destroy the base, the superstructure falls of course. At some future day it may be asked upon what authority we proceeded to raise and appropriate public moneys. We suppose we do it in virtue of the present constitution; but it may be doubted whether we have a right to exercise any of its authorities while it is suspended, as it will certainly be from the time that two-thirds of both Houses have agreed to submit it to the State Legislatures; so that, unless we mean to destroy the whole constitution, we ought to be careful how we attempt to amend it in the way proposed by the committee. From hence, I presume it will be more prudent to adopt the mode proposed by the gentleman from Connecticut, than it will be to risk the destruction of the whole by proposing amendments in the manner recommended by the committee. Mr. VINING disliked a supplementary form, and said it was a bad reason to urge the practice of former ages, when there was a more convenient method of doing the business at hand. He had seen an act entitled an act to amend a supplement to an act entitled an act for altering part of an act entitled an act for certain purposes therein mentioned. If gentlemen were disposed to run into such jargon in amending and altering the constitution, he could not help it; but he trusted they would adopt a plainness and simplicity of style on this and every other occasion, which should be easily understood. If the mode proposed by the gentleman from Connecticut was adopted, the system would be distorted, and, like a careless written letter, have more attached to it in a postscript than was contained in the original composition. The constitution being a great and important work, ought all to be brought into one view, and made as intelligible as possible. Mr. CLYMER was of opinion with the gentleman from Connecticut, that the amendments ought not to be incorporated in the body of the work, which he hoped would remain a monument to justify those who made it; by a comparison, the world would discover the perfection of the original, and the superfluity of the amendments. He made this distinction, because he did not conceive any of the amendments essential, but as they were solicited by his fellow-citizens, and for that reason they were acquiesced in by others; he therefore wished the motion for throwing them into a supplementary form might be carried. Mr. STONE.--It is not a matter of much consequence, with respect to the preservation of the original instrument, whether the amendments are incorporated or made distinct; because the records will always show the original form in which it stood. But in my opinion, we ought to mark its progress with truth in every step we take. If the amendments are incorporated in the body of the work, it will appear, unless we refer to the archives of Congress, that GEORGE WASHINGTON, and the other worthy characters who composed the convention, signed an instrument which they never had in contemplation. The one to which he affixed his signature purports to be adopted by the unanimous consent of the delegates from every State there assembled. Now if we incorporate these amendments, we must undoubtedly go further, and say that the constitution so formed was defective, and had need of alteration; we therefore purpose to repeal the old and substitute a new one in its place. From this consideration alone, I think we ought not to pursue the line of conduct drawn for us by the committee. This perhaps is not the last amendment the constitution may receive; we ought therefore to be careful how we set a precedent which, in dangerous and turbulent times, may unhinge the whole. Mr. LIVERMORE.--The mode adopted by the committee might be very proper, provided Congress had the forming of a constitution in contemplation; then they, or an individual member, might propose to strike out a clause and insert another, as is done with respect to article 3, section 2. But certainly no gentleman acquainted with legislative business would pretend to alter and amend, in this manner, a law already passed. He was convinced it could not be done properly in any other way than by the one proposed by the gentleman from Connecticut. Mr. GERRY asked, if the mode could make any possible difference, provided the sanction was the same; or whether it would operate differently in any one instance? If it will not, we are disputing about form, and the question will turn on the expediency. Now one gentleman tells you, that he is so attached to this instrument, that he is unwilling to lose any part of it; therefore, to gratify him, we may throw it into a supplementary form. But let me ask, will not this as effectually destroy some parts, as if the correction had been made by way of incorporation? or will posterity have a more favorable opinion of the original, because it has been amended by distinct acts? For my part, I cannot see what advantage can accrue from adopting the motion of the honorable gentleman from Connecticut, unless it be to give every one the trouble of erasing out of his copy of the constitution certain words and sentences, and inserting others. But, perhaps, in our great veneration for the original composition, we may go further, and pass an act to prohibit these interpolations, as it may injure the text. It is said that the present form of the amendments is contrary to the 5th article. I will not undertake to define the extent of the word amendment, as it stands in the fifth article; but I suppose if we proposed to change the division of the powers given to the three branches of the Government, and that proposition is accepted and ratified by three-fourths of the State Legislatures, it will become as valid, to all intents and purposes, as any part of the constitution; but if it is the opinion of gentlemen that the original is to be kept sacred, amendments will be of no use, and had better be omitted; whereas, on the other hand, if they are to be received as equal in authority we shall have five or six constitutions, perhaps differing in material points from each other, but all equally valid; so that they may require a man of science to determine what is or is not the constitution. This will certainly be attended with great inconvenience, as the several States are bound not to make laws contradictory thereto, and all officers are sworn to support it, without knowing precisely what it is. Mr. STONE asked the gentleman last up, how he meant to have the amendments incorporated? Was it intended to have the constitution republished, and the alterations inserted in their proper places? He did not see how it was practicable to propose amendments, without making out a new constitution, in the manner brought forward by the committee. Mr. LAWRENCE could not conceive how gentlemen meant to engraft the amendments into the constitution. The original one, executed by the convention at Philadelphia, was lodged in the archives of the late Congress; it was impossible for this House to take, and correct, and interpolate that without making it speak a different language: this would be supposing several things which never were contemplated. But what would become of the acts of Congress? They will certainly be vitiated, unless they are provided for by an additional clause in the constitution. Mr. BENSON said, that this question had been agitated in the select committee, and determined in favor of the form in which it was reported; he believed this decision was founded in a great degree upon the recommendation of the State conventions, which had proposed amendments in this very form. This pointed out the mode most agreeable to the people of America, and therefore the one most eligible for Congress to pursue; it will likewise be the most convenient way. Suppose the amendments ratified by the several States; Congress may order a number of copies to be printed, into which the alterations will be inserted, and the work stand perfect and entire. Mr. MADISON.--The gentleman last up has left me but one remark to add, and that is, if we adopt the amendment, we shall so far unhinge the business, as to occasion alterations in every article and clause of the report. Mr. HARTLEY hoped the committee would not agree to the alteration, because it would perplex the business. He wished the propositions to be simple and entire, that the State Legislatures might decide without hesitation, and every man know what was the ground on which he rested his political welfare. Besides, the consequent changes which the motion would induce, were such as, he feared, would take up some days, if not weeks; and the time of the House was too precious to be squandered away in discussing mere matter of form. Mr. JACKSON.--I do not like to differ with gentlemen about form; but as so much has been said, I wish to give my opinion; it is this: that the original constitution ought to remain inviolate, and not be patched up, from time to time, with various stuffs resembling Joseph's coat of many colors. Some gentlemen talk of repealing the present constitution, and adopting an improved one. If we have this power, we may go on from year to year, making new ones; and in this way, we shall render the basis of the superstructure the most fluctuating thing imaginable, and the people will never know what the constitution is. As for the alteration proposed by the committee, to prefix before "We the people" certain dogmas, I cannot agree to it; the words, as they now stand, speak as much as it is possible to speak; it is a practical recognition of the right of the people to ordain and establish Governments, and is more expressive than any other mere paper declaration. But why will gentlemen contend for incorporating amendments into the constitution? They say, that it is necessary for the people to have the whole before them in one view. Have they precedent for this assertion? Look at the constitution of Great Britain; is that all contained in one instrument? It is well known, that _magna charta_ was extorted by the barons from King John some centuries ago. Has that been altered since by the incorporation of amendments? Or does it speak the same language now, as it did at the time it was obtained? Sir, it is not altered a tittle from its original form. Yet there have been many amendments and improvements in the constitution of Britain since that period. In the subsequent reign of his son, the great charters were confirmed with some supplemental acts. Is the _habeas corpus_ act, or the statute _De Tallagio non concedendo_ incorporated in _magna charta_? And yet there is not an Englishman but would spill the last drop of his blood in their defence; it is these, with some other acts of Parliament and _magna charta_, that form the basis of English liberty. We have seen amendments to their constitution during the present reign, by establishing the independence of the judges, who are hereafter to be appointed during good behavior; formerly they were at the pleasure of the Crown. But was this done by striking out and inserting other words in the great charter? No, sir, the constitution is composed of many distinct acts; but an Englishman would be ashamed to own that, on this account, he could not ascertain his own privileges or the authority of the Government. The constitution of the Union has been ratified and established by the people; let their act remain inviolable; if any thing we can do has a tendency to improve it, let it be done, but without mutilating and defacing the original. Mr. SHERMAN.--If I had looked upon this question as mere matter of form, I should not have brought it forward or troubled the committee with such a lengthy discussion. But, sir, I contend that amendments made in the way proposed by the committee are void. No gentleman ever knew an addition and alteration introduced into an existing law, and that any part of such law was left in force; but if it was improved or altered by a supplemental act, the original retained all its validity and importance, in every case where the two were not incompatible. But if these observations alone should be thought insufficient to support my motion, I would desire gentlemen to consider the authorities upon which the two constitutions are to stand. The original was established by the people at large, by conventions chosen by them for the express purpose. The preamble to the constitution declares the act: but will it be a truth in ratifying the next constitution, which is to be done perhaps by the State Legislatures, and not conventions chosen for the purpose? Will gentlemen say it is "We the people" in this case? Certainly they cannot; for, by the present constitution, we, nor all the Legislatures in the Union together, do not possess the power of repealing it. All that is granted us by the 5th article is, that whenever we shall think it necessary, we may propose amendments to the constitution; not that we may propose to repeal the old, and substitute a new one. Gentlemen say, it would be convenient to have it in one instrument, that people might see the whole at once; for my part, I view no difficulty on this point. The amendments reported are a declaration of rights; the people are secure in them, whether we declare them or not; the last amendment but one provides that the three branches of Government shall each exercise its own rights. This is well secured already; and, in short, I do not see that they lessen the force of any article in the constitution; if so, there can be little more difficulty in comprehending them whether they are combined in one, or stand distinct instruments. Mr. SMITH read extracts from the amendments proposed by several of the State conventions at the time they ratified the constitution, from which, he said, it appeared that they were generally of opinion that the phraseology of the constitution ought to be altered; nor would this mode of proceeding repeal any part of the constitution but such as it touched, the remainder will be in force during the time of considering it and ever after. As to the observations made by the honorable gentleman from Georgia, respecting the amendments made to the constitution of Great Britain, they did not apply; the cases were nothing like similar, and, consequently, could not be drawn into precedent. The constitution of Britain is neither the _magna charta_ of John, nor the _habeas corpus_ act, nor all the charters put together; it is what the Parliament wills. It is true, there are rights granted to the subject that cannot be resumed; but the constitution, or form of government, may be altered by the authority of Parliament, whose power is absolute without control. Mr. SHERMAN.--The gentlemen who oppose the motion say we contend for matter of form; they think it nothing more. Now we say we contend for substance, and therefore cannot agree to amendments in this way. If they are so desirous of having the business completed, they had better sacrifice what they consider but a matter of indifference to gentlemen, to go more unanimously along with them in altering the constitution. The question on Mr. SHERMAN'S motion was now put and lost.[29] FRIDAY, August 14. ABIEL FOSTER, from New Hampshire, appeared and took his seat. SATURDAY, August 15. _Amendments to the Constitution._ FREEDOM OF CONSCIENCE. Article 1. Section 9. Between paragraphs two and three insert, "no religion shall be established by law, nor shall the equal rights of conscience be infringed." Mr. SYLVESTER had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to have a tendency to abolish religion altogether. Mr. VINING suggested the propriety of transposing the two members of the sentence. Mr. GERRY said, it would read better if it was, that no religious doctrine shall be established by law. Mr. SHERMAN thought the amendment altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them by the constitution to make religious establishments; he would, therefore, move to have it struck out. Mr. CARROLL.--As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion, that they are not well secured under the present constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community. Mr. MADISON said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit. Mr. HUNTINGTON said, that he feared, with the gentleman first up on this subject, that the words might be taken in such a latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it. The ministers of their congregations to the eastward were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner. These things were regulated by by-laws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers, or building of places of worship, might be construed into a religious establishment. By the charter of Rhode Island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it. He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all. Mr. MADISON thought, if the word national was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent. Mr. LIVERMORE was not satisfied with that amendment; but he did not wish them to dwell long on the subject. He thought it would be better if it was altered, and made to read in this manner, that Congress shall make no laws touching religion, or infringing the rights of conscience. Mr. GERRY did not like the term national, proposed by the gentleman from Virginia, and he hoped it would not be adopted by the House. It brought to his mind some observations that had taken place in the conventions at the time they were considering the present constitution. It had been insisted upon by those who were called anti-federalists, that this form of Government consolidated the Union; the honorable gentleman's motion shows that he considers it in the same light. Those who were called anti-federalists at that time complained that they had injustice done them by the title, because they were in favor of a Federal government, and the others were in favor of a national one; the federalists were for ratifying the constitution as it stood, and the others not until amendments were made. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats. Mr. MADISON withdrew his motion, but observed that the words "no national religion shall be established by law," did not imply that the Government was a national one; the question was then taken on Mr. Livermore's motion, and passed in the affirmative, thirty-one for, and twenty against it. _Amendments to the Constitution._ RIGHT OF INSTRUCTION. "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for the common good, and to apply to the Government for a redress of grievances," being the clause under consideration, Mr. TUCKER, of South Carolina, moved to add thereto these words--_to instruct their representatives_. Mr. HARTLEY wished the motion had not been made, for gentlemen acquainted with the circumstances of this country, and the history of the country from which we separated, differed exceedingly on this point. The members of the House of Representatives, said he, are chosen for two years, the members of the Senate for six. According to the principles laid down in the Constitution, it is presumable that the persons elected know the interests and the circumstances of their constituents, and being checked in their determinations by a division of the Legislative power into two branches, there is little danger of error. At least it ought to be supposed that they have the confidence of the people during the period for which they are elected; and if, by misconduct, they forfeit it, their constituents have the power of leaving them out at the expiration of that time--thus they are answerable for the part they have taken in measures that may be contrary to the general wish. Representation is the principle of our Government; the people ought to have confidence in the honor and integrity of those they send forward to transact their business; their right to instruct them is a problematical subject. We have seen it attended with bad consequences, both in England and America. When the passions of the people are excited, instructions have been resorted to and obtained, to answer party purposes; and although the public opinion is generally respectable, yet at such moments it has been known to be often wrong; and happy is that Government composed of men of firmness and wisdom to discover, and resist popular error. If, in a small community, where the interests, habits, and manners are neither so numerous nor diversified, instructions bind not, what shall we say of instructions to this body? Can it be supposed that the inhabitants of a single district in a State, are better informed with respect to the general interests of the Union, than a select body assembled from every part? Can it be supposed that a part will be more desirous of promoting the good of the whole than the whole will of the part? I apprehend, sir, that Congress will be the best judges of proper measures, and that instructions will never be resorted to but for party purposes, when they will generally contain the prejudices and acrimony of the party, rather than the dictates of honest reason and sound policy. In England this question has been considerably agitated. The representatives of some towns in Parliament have acknowledged, and submitted to the binding force of instructions, while the majority have thrown off the shackles with disdain. I would not have this precedent influence our decision; but let the doctrine be tried upon its own merits, and stand or fall as it shall be found to deserve. It appears to my mind, that the principle of representation is distinct from an agency, which may require written instructions. The great end of meeting is to consult for the common good; but can the common good be discerned without the object is reflected and shown in every light. A local or partial view does not necessarily enable any man to comprehend it clearly; this can only result from an inspection into the aggregate. Instructions viewed in this light will be found to embarrass the best and wisest men. And were all the members to take their seats in order to obey instructions, and those instructions were as various as it is probable they would be, what possibility would there exist of so accommodating each to the other as to produce any act whatever? Perhaps a majority of the whole might not be instructed to agree to any one point, and is it thus the people of the United States propose to form a more perfect union, provide for the common defence, and promote the general welfare? Sir, I have known within my own time so many inconveniences and real evils arise from adopting the popular opinions on the moment, that, although I respect them as much as any man, I hope this Government will particularly guard against them, at least that they will not bind themselves by a constitutional act, and by oath, to submit to their influence; if they do, the great object which this Government has been established to attain, will inevitably elude our grasp on the uncertain and veering winds of popular commotion. Mr. PAGE.--The gentleman from Pennsylvania tells you, that in England this principle is doubted; how far this is consonant with the nature of the Government I will not pretend to say; but I am not astonished to find that the administrators of a monarchical Government are unassailable by the weak voice of the people; but under a democracy, whose great end is to form a code of laws congenial with the public sentiment, the popular opinion ought to be collected and attended to. Our present object is, I presume, to secure to our constituents and to posterity these inestimable rights. Our Government is derived from the people; of consequence the people have a right to consult for the common good; but to what end will this be done, if they have not the power of instructing their representatives? Instruction and representation in a republic, appear to me to be inseparably connected; but were I the subject of a monarch, I should doubt whether the public good did not depend more upon the prince's will than the will of the people. I should dread a popular assembly consulting for the public good, because, under its influence, commotions and tumults might arise that would shake the foundation of the monarch's throne, and make the empire tremble in expectation. The people of England have submitted the crown to the Hanover family, and have rejected the Stuarts. If instructions upon such a revolution were considered binding, it is difficult to know what would have been the effects. It might be well, therefore, to have the doctrine exploded from that kingdom; but it will not be advanced as a substantial reason in favor of our treading in the same steps. The honorable gentleman has said, that when once the people have chosen a representative, they must rely on his integrity and judgment during the period for which he is elected. I think, sir, to doubt the authority of the people to instruct their representatives, will give them just cause to be alarmed for their fate. I look upon it as a dangerous doctrine, subversive of the great end for which the United States have confederated. Every friend of mankind, every well-wisher of his country, will be desirous of obtaining the sense of the people on every occasion of magnitude; but how can this be so well expressed as in instructions to their representatives? I hope, therefore, that gentlemen will not oppose the insertion of it in this part of the report. Mr. CLYMER.--I hope the amendment will not be adopted; but if our constituents choose to instruct us, that they may be left at liberty to do so. Do gentlemen foresee the extent of these words? If they have a constitutional right to instruct us, it infers that we are bound by those instructions; and as we ought not to decide constitutional questions by implication, I presume we shall be called upon to go further, and expressly declare the members of the Legislature bound by the instruction of their constituents. This is a most dangerous principle, utterly destructive of all ideas of an independent and deliberative body, which are essential requisites in the Legislatures of free Governments; they prevent men of abilities and experience from rendering those services to the community that are in their power, destroying the object contemplated by establishing an efficient General Government, and rendering Congress a mere passive machine. Mr. SHERMAN.--It appears to me, that the words are calculated to mislead the people, by conveying an idea that they have a right to control the debates of the Legislature. This cannot be admitted to be just, because it would destroy the object of their meeting. I think, when the people have chosen a representative, it is his duty to meet others from the different parts of the Union, and consult, and agree with them to such acts as are for the general benefit of the whole community. If they were to be guided by instructions, there would be no use in deliberation; all that a man would have to do, would be to produce his instructions, and lay them on the table, and let them speak for him. From hence I think it may be fairly inferred, that the right of the people to consult for the common good can go no further than to petition the Legislature, or apply for a redress of grievances. It is the duty of a good representative to inquire what measures are most likely to promote the general welfare, and, after he has discovered them, to give them his support. Should his instructions, therefore, coincide with his ideas on any measure, they would be unnecessary; if they were contrary to the conviction of his own mind, he must be bound by every principle of justice to disregard them. Mr. JACKSON was in favor of the right of the people to assemble and consult for the common good; it had been used in this country as one of the best checks on the British Legislature in their unjustifiable attempts to tax the colonies without their consent. America had no representatives in the British Parliament, therefore they could instruct none, yet they exercised the power of consultation to a good effect. He begged gentlemen to consider the dangerous tendency of establishing such a doctrine; it would necessarily drive the House into a number of factions. There might be different instructions from every State, and the representation from each State would be a faction to support its own measures. If we establish this as a right, we shall be bound by those instructions; now, I am willing to leave both the people and representatives to their own discretion on this subject. Let the people consult and give their opinion; let the representative judge of it; and if it is just, let him govern himself by it as a good member ought to do; but if it is otherwise, let him have it in his power to reject their advice. What may be the consequence of binding a man to vote in all cases according to the will of others? He is to decide upon a constitutional point, and on this question his conscience is bound by the obligation of a solemn oath; you now involve him in a serious dilemma. If he votes according to his conscience, he decides against his instructions; but in deciding against his instructions, he commits a breach of the constitution, by infringing the prerogative of the people, secured to them by this declaration. In short, it will give rise to such a variety of absurdities and inconsistencies, as no prudent Legislature would wish to involve themselves in. Mr. GERRY.--By the checks provided in the constitution, we have good grounds to believe that the very framers of it conceived that the Government would be liable to maladministration, and I presume that the gentlemen of this House do not mean to arrogate to themselves more perfection than human nature has as yet been found to be capable of; if they do not, they will admit an additional check against abuses which this, like every other Government, is subject to. Instruction from the people will furnish this in a considerable degree. It has been said that the amendment proposed by the honorable gentleman from South Carolina (Mr. TUCKER) determines this point, "that the people can bind their representatives to follow their instructions." I do not conceive that this necessarily follows. I think the representative, notwithstanding the insertion of these words, would be at liberty to act as he pleased; if he declined to pursue such measures as he was directed to attain, the people would have a right to refuse him their suffrages at a future election. Now, though I do not believe the amendment would bind the representatives to obey the instructions, yet I think the people have a right both to instruct and bind them. Do gentlemen conceive that on any occasion instructions would be so general as to proceed from all our constituents? If they do, it is the sovereign will; for gentlemen will not contend that the sovereign will presides in the Legislature. The friends and patrons of this constitution have always declared that the sovereignty resides in the people, and that they do not part with it on any occasion; to say the sovereignty vests in the people and that they have not a right to instruct and control their representatives is absurd to the last degree. They must either give up their principle, or grant that the people have a right to exercise their sovereignty to control the whole Government, as well as this branch of it. But the amendment does not carry the principle to such an extent, it only declares the right of the people to send instructions; the representative will, if he thinks proper, communicate his instructions to the House, but how far they shall operate on his conduct, he will judge for himself. The honorable gentleman from Georgia (Mr. JACKSON) supposes that instructions will tend to generate factions in this House; but he did not see how it could have that effect, any more than the freedom of debate had. If the representative entertains the same opinion with his constituents, he will decide with them in favor of the measure; if other gentlemen, who are not instructed on this point, are convinced by argument that the measure is proper, they will also vote with them; consequently the influence of debate and of instruction is the same. The gentleman says further, that the people have the right of instructing their representatives; if so, why not declare it? Does he mean that it shall lie dormant and never be exercised? If so, it will be a right of no utility. But much good may result from a declaration in the constitution that they possess this privilege; the people will be encouraged to come forward with their instructions, which will form a fund of useful information for the Legislature. We cannot, I apprehend, be too well informed of the true state, condition, and sentiment of our constituents, and perhaps this is the best mode in our power of obtaining information. I hope we shall never shut our ears against that information which is to be derived from the petitions and instructions of our constituents. I hope we shall never presume to think that all the wisdom of this country is concentrated within the walls of this House. Men, unambitious of distinctions from their fellow-citizens, remain within their own domestic walk, unheard of and unseen, possessing all the advantages resulting from a watchful observance of public men and public measures, whose voice, if we would descend to listen to it, would give us knowledge superior to what could be acquired amidst the cares and bustles of a public life; let us then adopt the amendment, and encourage the diffident to enrich our stock of knowledge with the treasure of their remarks and observations. Mr. MADISON.--I think the committee acted prudently in omitting to insert these words in the report they have brought forward; if, unfortunately, the attempt of proposing amendments should prove abortive, it will not arise from the want of a disposition in the friends of the constitution to do what is right with respect to securing the rights and privileges of the people of America, but from the difficulties arising from discussing and proposing abstract propositions of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty. Amendments of a doubtful nature will have a tendency to prejudice the whole system; the proposition now suggested partakes highly of this nature. It is doubted by many gentlemen here; it has been objected to in intelligent publications throughout the Union; it is doubted by many members of the State Legislatures. In one sense this declaration is true, in many others it is certainly not true; in the sense in which it is true, we have asserted the right sufficiently in what we have done; if we mean nothing more than this, that the people have a right to express and communicate their sentiments and wishes, we have provided for it already. The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiments by petition to the whole body; in all these ways they may communicate their will. If gentlemen mean to go further, and to say that the people have a right to instruct their representatives in such a sense as that the delegates are obliged to conform to those instructions, the declaration is not true. Suppose they instruct a representative, by his vote, to violate the constitution; is he at liberty to obey such instructions? Suppose he is instructed to patronize certain measures, and from circumstances known to him, but not to his constituents, he is convinced that they will endanger the public good; is he obliged to sacrifice his own judgment to them? Is he absolutely bound to perform what he is instructed to do? Suppose he refuses, will his vote be the less valid, or the community be disengaged from that obedience which is due to the laws of the Union? If his vote must inevitably have the same effect, what sort of a right is this in the constitution, to instruct a representative who has a right to disregard the order, if he pleases? In this sense the right does not exist, in the other sense it does exist, and is provided largely for. The honorable gentleman from Massachusetts asks if the sovereignty is not with the people at large. Does he infer that the people can, in detached bodies, contravene an act established by the whole people? My idea of the sovereignty of the people is, that the people can change the constitution if they please; but while the constitution exists, they must conform themselves to its dictates. But I do not believe that the inhabitants of any district can speak the voice of the people; so far from it, their ideas may contradict the sense of the whole people; hence the consequence that instructions are binding on the representative is of a doubtful, if not of a dangerous nature. I do not conceive, therefore, that it is necessary to agree to the proposition now made; so far as any real good is to arise from it, so far that real good is provided for; so far as it is of a doubtful nature, so far it obliges us to run the risk of losing the whole system. Mr. SMITH, (of South Carolina.)--I am opposed to this motion, because I conceive it will operate as a partial inconvenience to the more distant States. If every member is to be bound by instructions how to vote, what are gentlemen from the extremities of the continent to do? Members from the neighboring States can obtain their instructions earlier than those from the Southern ones, and I presume that particular instructions will be necessary for particular measures; of consequence, we vote perhaps against instructions on their way to us, or we must decline voting at all. But what is the necessity of having a numerous representation? One member from a State can receive the instructions, and by his vote answer all the purposes of many, provided his vote is allowed to count for the proportion the State ought to send; in this way the business might be done at a less expense than having one or two hundred members in the House, which had been strongly contended for yesterday. Mr. STONE.--I think the clause would change the Government entirely; instead of being a Government founded upon representation, it would be a democracy of singular properties. I differ from the gentleman from Virginia (Mr. MADISON), if he thinks this clause would not bind the representative; in my opinion, it would bind him effectually, and I venture to assert, without diffidence, that any law passed by the Legislature would be of no force, if a majority of the members of this House were instructed to the contrary, provided the amendment became part of the constitution. What would follow from this? Instead of looking in the code of laws passed by Congress, your Judiciary would have to collect and examine the instructions from the various parts of the Union. It follows very clearly from hence, that the Government would be altered from a representative one to a democracy, wherein all laws are made immediately by the voice of the people. This is a power not to be found in any part of the earth except among the Swiss cantons; there the body of the people vote upon the laws, and give instructions to their delegates. But here we have a different form of Government; the people at large are not authorized under it to vote upon the law, nor did I ever hear that any man required it. Why, then, are we called upon to propose amendments subversive of the principles of the constitution, which were never desired? Several members now called for the question, and the Chairman being about to put the same: Mr. GERRY.--Gentlemen seem in a great hurry to get this business through. I think, Mr. Chairman, it requires a further discussion; for my part, I had rather do less business and do it well, than precipitate measures before they are fully understood. The honorable gentleman from Virginia (Mr. MADISON) stated, that if the proposed amendments are defeated, it will be by the delay attending the discussion of doubtful propositions; and he declares this to partake of that quality. It is natural, sir, for us to be fond of our own work. We do not like to see it disfigured by other hands. That honorable gentleman brought forward a string of propositions; among them was the clause now proposed to be amended: he is no doubt ready for the question, and determined not to admit what we think an improvement. The gentlemen who were on the committee, and brought in the report, have considered the subject, and are also ripe for a decision. But other gentlemen may crave a like indulgence. Is not the report before us for deliberation and discussion, and to obtain the sense of the House upon it; and will not gentlemen allow us a day or two for these purposes, after they have forced us to proceed upon them at this time? I appeal to their candor and good sense on the occasion, and am sure not to be refused; and I must inform them now, that they may not be surprised hereafter, that I wish all the amendments proposed by the respective States to be considered. Gentlemen say it is necessary to finish the subject, in order to reconcile a number of our fellow-citizens to the Government. If this is their principle, they ought to consider the wishes and intentions which the convention has expressed for them; if they do this, they will find that they expect and wish for the declaration proposed by the honorable gentleman over the way (Mr. TUCKER), and, of consequence, they ought to agree to it; and why it, with others recommended in the same way, were not reported, I cannot pretend to say; the committee know this best themselves. The honorable gentleman near me (Mr. STONE) says, that the laws passed contrary to instruction will be nugatory. And other gentlemen ask, if their constituents instruct them to violate the constitution, whether they must do it. Sir, does not the constitution declare that all laws passed by Congress are paramount to the laws and constitutions of the several States; if our decrees are of such force as to set aside the State laws and constitutions, certainly they may be repugnant to any instructions whatever, without being injured thereby. But can we conceive that our constituents would be so absurd as to instruct us to violate our oath, and act directly contrary to the principles of a Government ordained by themselves? We must look upon them to be absolutely abandoned and false to their own interests, to suppose them capable of giving such instructions. If this amendment is introduced into the constitution, I do not think we shall be much troubled with instructions; a knowledge of the right will operate to check a spirit that would render instruction necessary. The honorable gentleman from Virginia asked, will not the affirmative of a member who votes repugnant to his instructions bind the community as much as the votes of those who conform? There is no doubt, sir, but it will; but does this tend to show that the constituent has no right to instruct? Surely not. I admit, sir, that instructions contrary to the constitution ought not to bind, though the sovereignty resides in the people. The honorable gentleman acknowledges that the sovereignty vests there; if so, it may exercise its will in any case not inconsistent with a previous contract. The same gentleman asks if we are to give the power to the people in detached bodies to contravene the Government while it exists. Certainly not; nor does the proposed proposition extend to that point; it is only intended to open for them a convenient mode in which they may convey their sense to their agents. The gentleman therefore takes for granted what is inadmissible, that Congress will always be doing illegal things, and make it necessary for the sovereign to declare its pleasure. He says the people have a right to alter the constitution, but they have no right to oppose the Government. If, while the Government exists, they have no right to control it, it appears they have divested themselves of the sovereignty over the constitution. Therefore, our language, with our principles, must change, and we ought to say that the sovereignty existed in the people previous to the establishment of this Government. This will be ground for alarm indeed, if it is true; but I trust, sir, too much to the good sense of my fellow-citizens ever to believe that the doctrine will generally obtain in this country of freedom. Mr. VINING.--If, Mr. Chairman, there appears on one side too great an urgency to despatch this business, there appears on the other an unnecessary delay and procrastination equally improper and unpardonable. I think this business has been already well considered by the House, and every gentleman in it; however, I am not for an unseemly expedition. Mr. LIVERMORE was not very anxious whether the words were inserted or not, but he had a great deal of doubt on the meaning of this whole amendment; it provides that the people may meet and consult for the common good. Does this mean a part of the people in a township or district, or does it mean the representatives in the State Legislatures? If it means the latter, there is no occasion for a provision that the Legislature may instruct the members of this body. In some States the representatives are chosen by districts. In such case, perhaps, the instructions may be considered as coming from the district; but in other States, each representative is chosen by the whole people. In New Hampshire it is the case; the instructions of any particular place would have but little weight, but a legislative instruction would have considerable influence upon each representative. If, therefore, the words mean that the Legislature may instruct, he presumed it would have considerable effect, though he did not believe it binding. Indeed, he was inclined to pay a deference to any information he might receive from any number of gentlemen, even by a private letter; but as for full binding force, no instructions contained that quality. They could not, nor ought they to have it, because different parties pursue different measures; and it might be expedient, nay, absolutely necessary, to sacrifice them in mutual concessions. The doctrine of instructions would hold better in England than here, because the boroughs and corporations might have an interest to pursue totally immaterial to the rest of the kingdom; in that case, it would be prudent to instruct their members in Parliament. Mr. GERRY wished the constitution amended without his having any hand in it; but if he must interfere, he would do his duty. The honorable gentleman from Delaware had given him an example of moderation and laconic and consistent debate that he meant to follow; and would just observe to the worthy gentleman last up, that several States had proposed the amendment, and among the rest, New Hampshire. There was one remark which escaped him, when he was up before. The gentleman from Maryland (Mr. STONE) had said that the amendment would change the nature of the Government, and make it a democracy. Now he had always heard that it was a democracy; but perhaps he was misled, and the honorable gentleman was right in distinguishing it by some other appellation; perhaps an aristocracy was a term better adapted to it. Mr. SEDGWICK opposed the idea of the gentleman from New Hampshire, that the State Legislature had the power of instructing the members of this House; he looked upon it as a subornation of the rights of the people to admit such an authority. We stand not here, said he, the representatives of the State Legislatures, as under the former Congress, but as the representatives of the great body of the people. The sovereignty, the independence, and the rights of the States are intended to be guarded by the Senate; if we are to be viewed in any other light, the greatest security the people have for their rights and privileges is destroyed. But with respect to instructions, it is well worthy of consideration how they are to be procured. It is not the opinion of an individual that is to control my conduct: I consider myself as the representative of the whole Union. An individual may give me information, but his sentiments may he in opposition to the sense of the majority of the people. If instructions are to be of any efficacy, they must speak the sense of the majority of the people, at least of a State. In a State so large as Massachusetts it will behoove gentlemen to consider how the sense of the majority of the freemen is to be obtained and communicated. Let us take care to avoid the insertion of crude and indigested propositions, more likely to produce acrimony than that spirit of harmony which we ought to cultivate. Mr. LIVERMORE said that he did not understand the honorable gentleman, or was not understood by him; he did not presume peremptorily to say what degree of influence the legislative instructions would have on a representative. He knew it was not the thing in contemplation here; and what he had said respected only the influence it would have on his private judgment. Mr. AMES said there would be a very great inconvenience attending the establishment of the doctrine contended for by his colleague. Those States which had selected their members by districts would have no right to give them instructions, consequently the members ought to withdraw; in which case the House might be reduced below a majority, and not be able, according to the constitution, to do any business at all. According to the doctrine of the gentleman from New Hampshire, one part of the Government would be annihilated; for of what avail is it that the people have the appointment of a representative, if he is to pay obedience to the dictates of another body? Several members now rose, and called for the question. Mr. PAGE was sorry to see gentlemen so impatient; the more so, as he saw there was very little attention paid to any thing that was said; but he would express his sentiments if he was only heard by the Chair. He discovered clearly, notwithstanding what had been observed by the most ingenious supporters of the opposition, that there was an absolute necessity for adopting the amendment. It was strictly compatible with the spirit and the nature of the Government; all power vests in the people of the United States; it is therefore a Government of the people, a democracy. If it were consistent with the peace and tranquillity of the inhabitants, every freeman would have a right to come and give his vote upon the law; but, inasmuch as this cannot be done, by reason of the extent of territory, and some other causes, the people have agreed that their representatives shall exercise a part of their authority. To pretend to refuse them the power of instructing their agents, appears to me to deny them a right. One gentleman asks how the instructions are to be collected. Many parts of this country have been in the practice of instructing their representatives; they found no difficulty in communicating their sense. Another gentleman asks if they were to instruct us to make paper money, what we would do. I would tell them, said he, it was unconstitutional; alter that, and we will consider on the point. Unless laws are made satisfactory to the people, they will lose their support, they will be abused or done away; this tends to destroy the efficiency of the Government. It is the sense of several of the conventions that this amendment should take place; I think it my duty to support it, and fear it will spread an alarm among our constituents if we decline to do it. Mr. WADSWORTH.--Instructions have frequently been given to the representatives of the United States; but the people did not claim as a right that they should have any obligation upon the representatives; it is not right that they should. In troublous times, designing men have drawn the people to instruct the representatives to their harm; the representatives have, on such occasions, refused to comply with their instructions. I have known, myself, that they have been disobeyed, and yet the representative was not brought to account for it; on the contrary he was caressed and re-elected, while those who have obeyed them, contrary to their private sentiments, have ever after been despised for it. Now, if people considered it an inherent right in them to instruct their representatives, they would have undoubtedly punished the violation of them. I have no idea of instructions, unless they are obeyed; a discretional power is incompatible with them. Mr. BURKE.--I am not positive with respect to the particular expression in the declaration of rights of the people of Maryland, but the constitutions of Massachusetts, Pennsylvania, and North Carolina, all of them recognize, in express terms, the right of the people to give instruction to their representatives. I do not mean to insist particularly upon this amendment; but I am very well satisfied that those that are reported and likely to be adopted by this House are very far from giving satisfaction to our constituents; they are not those solid and substantial amendments which the people expect; they are little better than whip-syllabub, frothy and full of wind, formed only to please the palate; or they are like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage. In my judgment, the people will not be gratified by the mode we have pursued in bringing them forward. There was a committee of eleven appointed; and out of the number I think there were five who were members of the convention that formed the constitution. Such gentlemen, having already given their opinion with respect to the perfection of the work, may be thought improper agents to bring forward amendments. Upon the whole, I think it will be found that we have done nothing but lose our time, and that it will be better to drop the subject now, and proceed to the organization of the Government. The question was now called for from several parts of the House; but a desultory conversation took place before the question was put. At length the call becoming general, it was stated from the Chair, and determined in the negative, 10 rising in favor of it, and 41 against it. TUESDAY, August 18. _Amendments to the Constitution._ Mr. GERRY moved, "That such of the amendments to the constitution proposed by the several States, as are not in substance comprised in the report of the select committee appointed to consider amendments, be referred to a Committee of the whole House; and that all amendments which shall be agreed to by the committee last mentioned be included in one report." Mr. TUCKER remarked, that many citizens expected that the amendments proposed by the conventions would be attended to by the House, and that several members conceived it to be their duty to bring them forward. If the House should decline taking them into consideration, it might tend to destroy that harmony which had hitherto existed, and which did great honor to their proceedings; it might affect all their future measures, and promote such feuds as might embarrass the Government exceedingly. The States who had proposed these amendments would feel some degree of chagrin at having misplaced their confidence in the General Government. Five important States have pretty plainly expressed their apprehensions of the danger to which the rights of their citizens are exposed. Finding these cannot be secured in the mode they had wished, they will naturally recur to the alternative, and endeavor to obtain a federal convention; the consequence of this may be disagreeable to the Union; party spirit may be revived, and animosities rekindled destructive of tranquillity. States that exert themselves to obtain a federal convention, and those that oppose the measure, may feel so strongly the spirit of discord, as to sever the Union asunder. If in this conflict the advocates for a federal convention should prove successful, the consequences may be alarming; we may lose many of the valuable principles now established in the present constitution. If, on the other hand, a convention should not be obtained, the consequences resulting are equally to be dreaded; it would render the administration of this system of government weak, if not impracticable; for no government can be administered with energy, however energetic its system, unless it obtains the confidence and support of the people. Which of the two evils is the greatest would be difficult to ascertain. It is essential to our deliberations that the harmony of the House be preserved; by it alone we shall be enabled to perfect the organization of the Government--a Government but in embryo, or at best but in its infancy. My idea relative to this constitution, whilst it was dependent upon the assent of the several States, was, that it required amendment, and that the proper time for amendment was previous to the ratification. My reasons were, that I conceived it difficult, if not impossible, to obtain essential amendments by the way pointed out in the constitution; nor have I been mistaken in this suspicion. It will be found, I fear, still more difficult than I apprehended; for perhaps these amendments, should they be agreed to by two-thirds of both Houses of Congress, will be submitted for ratification to the Legislatures of the several States, instead of State conventions, in which case the chance is still worse. The Legislatures of almost all the States consist of two independent, distinct bodies; the amendments must be adopted by three-fourths of such Legislatures; that is to say, they must meet the approbation of the majority of each of eighteen deliberative assemblies. But, notwithstanding all these objections to obtaining amendments after the ratification of the constitution, it will tend to give a great degree of satisfaction to those who are desirous of them, if this House shall take them up, and consider them with that degree of candor and attention they have hitherto displayed on the subjects that have come before them; consider the amendments separately, and, after fair deliberation, either approve or disapprove of them. By such conduct, we answer in some degree the expectations of those citizens in the several States who have shown so great a tenacity to the preservation of those rights and liberties they secured to themselves by an arduous, persevering, and successful conflict. I have hopes that the States will be reconciled to this disappointment, in consequence of such procedure. A great variety of arguments might be urged in favor of the motion; but I shall rest it here, and not trespass any further upon the patience of the House. Mr. _Madison_ was just going to move to refer these amendments, in order that they might be considered in the fullest manner; but it would be very inconvenient to have them made up into one report, or all of them discussed at the present time. Mr. _Vining_ had no objection to the bringing them forward in the fullest point of view; but his objection arose from the informality attending the introduction of the business. The order of the House was to refer the report of the committee of eleven to a Committee of the Whole, and therefore it was improper to propose any thing additional. A desultory conversation arose on this motion, when Mr. _Vining_ moved the previous question, in which, being supported by five members, it was put, and the question was,--Shall the main question, to agree to the motion, be now put? The yeas and nays being demanded by one-fifth of the members present, on this last motion, they were taken as follows: YEAS.--Messrs. Burke, Coles, Floyd, Gerry, Griffin, Grout, Hathorn, Livermore, Page, Parker, Van Renssellaer, Sherman, Stone, Sturgis, Sumter, and Tucker.--16. NAYS.--Messrs. Ames, Baldwin, Benson, Boudinot, Brown, Cadwalader, Carroll, Clymer, Fitzsimons, Foster, Gilman, Goodhue, Hartley, Heister, Huntington, Lawrence, Lee, Madison, Moore, Muhlenberg, Partridge, Schureman, Scott, Sedgwick, Seney, Sylvester, Sinnickson, Smith, (of Maryland,) Smith, (of South Carolina,) Thatcher, Trumbull, Vining, Wadsworth, and Wynkoop.--34. So the motion was lost. A message from the Senate informed the House that the Senate had passed the bill providing for expenses which may attend negotiations or treaties with the Indian tribes, and the appointment of commissioners for managing the same, with an amendment, to which they desire the concurrence of the House. THURSDAY, September 3. _Permanent Seat of Government._ Mr. _Scott_, agreeably to notice given, moved the following: "That a permanent residence ought to be fixed for the General Government of the United States at some convenient place, as near the centre of wealth, population, and extent of territory, as may be consistent with convenience to the navigation of the Atlantic Ocean, and having due regard to the particular situation of the Western country." The House resolved itself into a Committee of the Whole, to take into consideration the motion presented by Mr. _Scott_, on Thursday last, for establishing the permanent residence of Congress, Mr. BOUDINOT in the chair. Mr. _Goodhue_.--The motion before the committee I consider too indefinite for the House to decide upon satisfactorily; I wish, therefore, to add something which may bring the question to a point. It is well known that the gentlemen from the Eastward are averse to taking up this business at this time. Not that the subject was improper for our discussion, but that the present session is drawing to a period, and there remains yet much important business to be transacted before the adjournment; but their opinion being overruled by a late vote of the House, they have since taken it into consideration, and are now ready and willing to come to a decision. The Eastern members, with the members from New York, have agreed to fix a place upon national principles, without a regard to their own convenience, and have turned their minds to the banks of the Susquehanna. This is a situation as nearly central as could be devised, upon some of the principles contained in the resolution. It is, however, supposed to be considerably to the southward of the centre of the population. Motives of convenience would have led us to fix upon the banks of the Delaware, but it was supposed it would give more lasting content to go further south. They were, therefore, unitedly of opinion, that the banks of the river Susquehanna should be the place of the permanent residence of the General Government; and that until suitable buildings could be there erected for accommodation, they should remain in the city of New York. Agreeably to these ideas, I move the following resolution: _Resolved_, That the permanent seat of the General Government ought to be in some convenient place on the east bank of the river Susquehanna, in the State of Pennsylvania; and that until the necessary buildings be erected for the purpose, the seat of Government ought to continue at the city of New York. Mr. STONE said, it ought to be "Government of the United States," instead of General Government. Mr. LEE.--The House are now called upon to deliberate on a great national question; and I hope they will discuss and decide it with that dispassionate deliberation which the magnitude of the subject requires. I hope they will be guided in this discussion and decision, by the great principles on which the Government is founded. I have, with a view, therefore, of bringing them before a committee, drawn up a preamble, which recognizes them, in the words following: Whereas the people of the United States have assented to and ratified a constitution for their Government, to provide for their defence against foreign danger, to secure their perpetual union and domestic tranquillity, and to promote their common interests; and all these great objects will be the best effected by establishing the seat of Government in a station as nearly central as a convenient water communication with the Atlantic Ocean, and an easy access to the Western Territory will permit; and as it will be satisfactory to the people of the United States, and give them a firm confidence in the justice and wisdom of their Government, to be assured that such a station is already in the contemplation of Congress; and that proper measures will be taken to ascertain it, and to provide the necessary accommodations, as soon as the indispensable arrangements for carrying into effect the constitution can be made, and the circumstances of the United States will permit; _Resolved_, That a place, as nearly central as a convenient communication with the Atlantic Ocean, and an easy access to the Western Territory, will permit, ought to be selected and established as the permanent seat of the Government of the United States. I wish the principles to be recognized, that the people of the United States may be able to judge whether, in the measures about to be adopted, they are carried into execution by this House. If these great principles are not observed, it will be an unhappy fulfilment of those predictions which have been made by the opponents of the constitution; that the general interest of America would not be consulted; that partial measures would be pursued; and that, instead of being influenced by a general policy, directed to the good of the whole, one part of the Union would be depressed and trampled on, to benefit and exalt the other. Instead of accomplishing and realizing those bright prospects which shone upon us in the dawn of our Government, and for which our patriots fought and bled, we shall find the whole to be a visionary fancy. I flatter myself, that before the House decides on the question before them, those principles will be recognized, if it is meant they shall be regarded. Mr. CARROL seconded Mr. LEE'S motion. Mr. SHERMAN said, if they were both adopted, or blended together, they would only amount to a preamble, and determine nothing. He thought the first preamble the best, inasmuch as it stated the principles simply and concisely. Mr. HARTLEY.--Several places have been mentioned, and some have been offered to Congress as proper situations for the Federal Government. Many persons wish it seated on the banks of the Delaware, many on the banks of the Potomac. I consider this as the middle ground between the two extremes. It will suit the inhabitants to the north better than the Potomac could, and the inhabitants to the south better than the Delaware would. From this consideration, I am induced to believe, it will be a situation more accommodating and agreeable than any other. Respecting its communication with the Western Territory, no doubt but the Susquehanna will facilitate that object with considerable ease and great advantage; and as to its convenience to the navigation of the Atlantic Ocean, the distance is nothing more than to afford safety from any hostile attempt, while it affords a short and easy communication with navigable rivers and large commercial towns. Nay, its intercourse may be without land carriage, if proper measures are pursued to open the navigation to the Delaware and Chesapeake. Perhaps, as the present question is only intended to be on general principles, it may be improper to be more minute than the honorable mover has been; but I think it would be better to come to the point at once, and fix the precise spot, if we could. With this view, I mention Wright's Ferry, on the Susquehanna. Not, however, that the House should decide upon it, until they have ascertained its advantages, which will, perhaps, come more properly forward when the question on the preamble is determined. Mr. THATCHER was against a preamble being prefixed to the resolution of the committee, because the House had, on every occasion when preambles were brought forward, rejected them. He thought this a prudent conduct, because it avoided embarrassments. He observed, that it was not unfrequently the case that the preambles occasioned more difficulty in understanding the laws than the most intricate part of the laws themselves; and, therefore, the committee would act wisely to reject such trammels. He conceived, moreover, that the motion was out of order, as it was a substitute for one before the committee. Mr. SMITH (of South Carolina) looked upon the motion as a preamble to a preamble, both of which he conceived unnecessary; nay, he doubted the truth of some of the assertions. So far from cementing the Union, by a measure of the kind in contemplation, he rather feared it would have a tendency to rend the Union in two; for which reason he was against adopting it. Mr. TUCKER wished the proposition might lie on the table, to give gentlemen time to consider it. Mr. LEE conceived it proper to adopt the preamble as a guide to their decision. No gentlemen pretended to say it contained improper principles. As to the whole being a preamble to a preamble, he did not conceive that to be the case, because the resolution, subsequent to the preamble, decided, that Congress should select a place for their permanent residence. He did not conceive how gentlemen could refuse their assent to a self-evident proposition. He thought such conduct would give an alarm to the inhabitants of the United States; it amounted to a declaration, that, on this important question, they would not be governed by principles founded on rectitude and good policy. Mr. MADISON.--I cannot, Mr. Chairman, discover why the opposition to my colleague's preamble is so strenuous. Is it contended to be out of order? I submit that to the decision of the Chair. Does it contain any thing which is not true? I appeal, on that point, to the candid judgment of the committee. Are the truths in it applicable to the great object we are about to decide? I appeal to the justice and policy of the people of the United States. I flatter myself the Chair will decide with me, that the proposition is strictly in order; that the committee will agree, that its contents are substantial truths; and the whole world, that they are applicable to the important point now under consideration. It declares the principles which ought to govern our decision on this question, and will, therefore, stand properly prefixed to the motion offered by the gentleman from Massachusetts (Mr. GOODHUE.) By it we declare our sentiments, and engage to conform to them, in fixing upon a seat for the residence of Congress. Is there any thing improper or unwise in this determination? An honorable gentleman near me (Mr. TUCKER) says, that he feels himself embarrassed on this occasion; that the propositions are a bandage over his eyes, to lead him blindfolded to an object he cannot tell what. I must beg leave to differ from him. They appear to me to contain those luminous truths which ought to guide him through his embarrassment to the object which I am sure his justice and patriotism are in pursuit of. I hope, therefore, he will agree with us in adopting the motion, unless something more essential is offered against it. Mr. SHERMAN.--The resolution connected with the preamble contains a proposition which, I think, ought not to be adopted. It selects a place, having a convenient water-communication with the Atlantic. Now, it may be just and expedient to fix upon a place at some distance from a navigable river, therefore it may not agree with the intention of the committee. As to the principles which are to guide our decisions, they are as well expressed in the propositions of the gentleman from Pennsylvania as in the substitute, and as free from ambiguity. The question on Mr. LEE'S motion was taken, and determined in the negative; yeas 17, nays 34. Mr. TUCKER declared, that the majority for fixing upon any set of principles whatever, could not govern his mind with regard to the fact. If, on the whole, he did not think that place best, which the principles adopted seemed to lead to, he certainly could not vote for it. Of what use, then, was it to establish principles which could not govern the conduct of the House? But the principles offered are vague, and lead to no certain conclusion. What is the centre of wealth, population, and territory? Is there a common centre? Territory has one centre, population another, and wealth a third. Now, is it intended to determine a centre from these three centres? This was not a practicable mode of settling the place; and it was to be doubted whether the centre of wealth ought at all to be considered. The centre of population is variable, and a decision on that principle now, might establish the seat of Government at a very inconvenient place to the next generation. The centre of territory may be ascertained, but that will lead to a situation entirely ineligible; consequently, whether these centres were considered separately or together, they furnish no satisfactory direction, no possible guide to the committee. The only way, then, to come at a result yielding satisfaction, would be to consider the several places to be proposed, according to their merits; and this would be done by gentlemen in the course of the business. He was, therefore, against settling any principles by vote. Mr. MADISON.--I move to strike out the word wealth, because I do not conceive this to be a consideration that ought to have much weight in determining the place where the seat of Government ought to be. The two other principles, I admit, are such as ought to have their influence; but why wealth should is not so clear. Government is intended for the accommodation of the citizens at large; an equal facility to communicate with Government is due to all ranks; whether to transmit their grievances or requests, or to receive those blessings which the Government is intended to dispense. The rich are certainly not less able than those who are indigent to resort to the seat of Government, or to establish the means necessary for receiving those advantages to which, as citizens, they are entitled. I should rather suppose, if any distinctions are to be made, or superior advantages to be enjoyed from the presence of the Government, that the Government ought rather to move toward those who are the least able to move toward it, and who stand most in need of its protection. The question on this motion was taken, and passed in the negative; yeas 22, nays 28. The question on Mr. SCOTT'S motion was then taken, and adopted; yeas 32, nays 18. Mr. GOODHUE'S motion was now taken into consideration. Mr. LEE hoped that gentlemen would show how the banks of the Susquehanna conformed with the principles laid down in the resolution adopted by the House; how it communicated with the navigation of the Atlantic, and how it was connected with the Western Territory. He hoped they would also point out its other advantages, respecting salubrity of air and fertility of soil. He expected all these advantages ought to be combined in the place of the residence of the Federal Government, and every other requisite to cement the common interest of America. Mr. Hartley wished some gentleman had risen to satisfy the inquiries of the honorable member, who could have given a description of the advantages of that situation in better language than himself. But as no gentleman had offered to undertake the subject, he thought himself bound to make him an answer; and he trusted, in doing this, he should clearly show that all the advantages contemplated would result from adopting the motion. But he wished it had extended further, and selected the place most convenient on the banks of the Susquehanna, as then the answer would be more pointed and decisive. He had already mentioned Wright's Ferry, and would consider that as the proper spot. Now, Wright's Ferry lies on the east bank of the Susquehanna, about thirty-five miles from navigable water; and, from a few miles above, is navigable to the source of the river, at Lake Otsego, in the upper part of the State of New York. The Tioga branch is navigable a very considerable distance up, and is but a few miles from the Genesee, which empties into Lake Ontario. The Juniata is navigable, and nearly connects with the Kisskemanetas, and that with the Ohio; besides the West Branch connects with the Alleghany River; forming a communication with the distant parts even of Kentucky, with very little land carriage. The great body of water in that river renders it navigable at all seasons of the year. With respect to the settlements in the neighborhood of Wright's Ferry, he would venture to assert it was as thickly inhabited as any part of the country in North America. As to the quality of the soil, it was inferior to none in the world, and though that was saying a good deal, it was not more than he believed a fact. In short, from all the information he had acquired, and that was not inconsiderable, he ventured to pronounce, that in point of soil, water, and the advantages of nature, there was no part of the country superior. And if honorable gentlemen were disposed to pay much attention to a dish of fish, he could assure them their table might be furnished with fine and good from the waters of the Susquehanna; perhaps not in such variety as in this city, but the deficiency was well made up in the abundance which liberal nature presented them of her various products. It was in the neighborhood of two large and populous towns, one of them the largest inland town in America. Added to all these advantages, it possessed that of centrality, perhaps, in a superior degree to any which could be proposed. Mr. LEE asked the gentleman what was the distance of Wright's Ferry from Yorktown, and whether that town, as it had once accommodated Congress, could do it again? If a permanent seat is established, why not go to it immediately? And why, let me ask, shall we go and fix upon the banks of a rapid river, when we can have a more healthful situation? And here he would inquire if the Codorus Creek, which runs through Yorktown into the Susquehanna, was, or could be made navigable? Mr. HARTLEY answered, that Yorktown was ten miles from the Ferry, that it contained about five hundred houses, besides a number of large and ornamental public buildings; that there was no doubt, but if Congress deemed it expedient to remove immediately there, they could be conveniently accommodated; but as gentlemen appeared to be inclined to fix the permanent residence on the east banks of the Susquehanna, he was very well satisfied it should be there. Mr. MADISON.--The gentleman who brought forward this motion was candid enough to tell us, that measures have been preconcerted out of doors, and that the point was determined; that more than half the territory of the United States, and nearly half its inhabitants have been disposed of, not only without their consent, but without their knowledge. After this, I hope the gentleman will extend his candor so much further, as to show that the general principles now to be established are applicable to their determination, in order that we may reconcile this fate to our own minds, and submit to it with some degree of complacency. I hope, if the seat of Government is to be at or near the centre of wealth, population, and extent of territory, that gentlemen will show that the permanent seat there proposed is near the permanent centre of wealth, population and extent of territory, and the temporary seat, near the temporary centre. I think we may, with good reason, call upon gentlemen for an explanation on these points, in order that we may know the ground on which the great question is decided, and be able to assign to our constituents satisfactory reasons for what some of them may consider a sacrifice of their interest, and be instrumental in reconciling them, as far as possible, to their destiny. Mr. GOODHUE thought the question, stated by the gentleman from Virginia, was proper to be asked, and proper to be answered. The gentlemen from the eastward, as he said before, were in favor of the Susquehanna; that in contemplating the geographical centre of territory, they found the banks of that river to be near the place. In point of population, they considered the Susquehanna was south of that centre; but, from a spirit of conciliation, they were inclined to go there, although the principle and their own convenience would not lead them beyond the banks of the Delaware. He believed the centre of population would not vary considerably for ages yet to come, because he supposed it would constantly incline more toward the Eastern, and manufacturing States, than toward the Southern, and agricultural ones. Mr. JACKSON.--I was originally opposed to the question coming forward, and am so still. I thought the subject ought not to be touched till the States, who have not yet acceded to the Union, might have an opportunity of giving their voice. I agree with the gentleman from Virginia. I am sorry that the people should learn that this matter has been precipitated; that they should learn, that the members from New England and New York had fixed on a seat of Government for the United States. This is not proper language to go out to freemen. Jealousies have already gone abroad. This language will blow the coals of sedition, and endanger the Union. I would ask, if the other members of the Union are not also to be consulted? Are the eastern members to dictate in this business, and fix the seat of Government of the United States? Why not also fix the principles of Government? Why not come forward, and demand of us the power of Legislation, and say, give us up your privileges, and we will govern you? If one part has the power to fix the seat of Government, they may as well take the Government from the other. This looks like aristocracy: not the united, but the partial voice of America is to decide. How can gentlemen answer for this, who call themselves representatives, on the broad basis of national interest? I deny the fact of the territorial centrality of the place proposed. From New York, to the nearest part of the province of Maine, it is two hundred and fifty miles; and from New York, to the nearest part of the upper district of Georgia, from which my colleague, General Matthews, comes, is eleven hundred miles; and from the proposed place on the Susquehanna, it is four hundred miles to the nearest part of Maine, and nine hundred to the nearest part of that district; the proportion is more than two to one. But the gentlemen should have an eye to the population of Georgia; one of the finest countries in the world cannot but rapidly extend her population; nothing but her being harassed by the inroads of savages has checked her amazing increase, which must, under the auspices of peace and safety, people her western regions. Georgia will soon be as populous as any State in the Union. Calculations ought not to be made on its present situation. North Carolina is not yet in the Union, and perhaps the place may give umbrage to her, which ought, at this moment, to be cautiously avoided. I should, therefore, think it most advisable to postpone the decision for this session at least. But, if we are to decide, I own, I think the Potomac a better situation than the Susquehanna, and I hope it will be selected for that purpose. Mr. GOODHUE.--If gentlemen examine this subject with candor, they will find that the banks of the Susquehanna are as near the geographical centre as can be fixed upon. It is from the extreme of the Province of Maine about seven hundred and sixty miles; to Savannah, in Georgia, about seven hundred and sixty; and about seven hundred and thirty, or seven hundred and forty, from Kentucky; so that it is rather south of the centre of territory. Mr. LAWRENCE.--When this subject was under discussion some time since, it appeared to be the wish of gentlemen from the eastward, and of the members from this State, that the question should not now be decided. They urged several reasons why it would be improper. I thought those reasons weighty, and was for postponing the consideration till our next meeting. But it was answered, that the business was important; that the citizens of the United States were uneasy and anxious; that as factions did not now exist, it was the proper time to decide the question. What was the representation to do? Was it not necessary for them to consult, and fix upon a proper place? They are, in a degree, disinterested, because they have no expectation that the seat of Government will be fixed in any of the Eastern States. On the other hand, there is a well-grounded expectation, that it will be fixed either in Virginia, Maryland, Pennsylvania, or Jersey. We are called on to determine a question in which we conceive ourselves unbiased, and shall decide it on those principles that will reflect honor on the House. I trust it will be found that we have fixed on those principles, and that this resolution will be confirmed by Congress. We do not decide for the Union, nor for the Southern States, we decide for ourselves; and if our reasons are substantial, I trust that gentlemen will meet us in the determination. There are several principles which have been agreed to in the general resolution; and I believe it will be shown, with exactness, that the place proposed will come within these principles. The first respects population. Is the House to consider the present, or the expected population? The resolution has a determinate meaning; it speaks of the population at the present period; and to calculate on this principle no gentleman can say is unjust. The representation in this House is itself a demonstration of it. The population of this country may be pretty safely determined by the proportion of representatives in this House; for it is established on this ground. I therefore believe, that the principle of population inclines to this place, in preference to a more southern situation. But, in taking the principle of territory, are the House to calculate on the uninhabited wilderness? Shall they take the Lake of the Woods on one side, and the Missouri on the other, and find a geographical centre? If so, to what an extent must they go? The inhabited and populated part of the country ought chiefly to be considered. If St. Croix is taken as the eastern limit, and St. Mary as the southern, the centre of the line will be found to fall pretty near the Susquehanna. Mr. SEDGWICK.--I beg leave to ask, if there really is any impropriety in gentlemen's consulting together, who have a uniformity of interest, upon a question which has been said to be of such infinite importance? My colleague has barely stated that such a consultation has taken place, and that, in consequence of it, men's minds have been induced to run in a current. Is there any thing wrong in this? Let those, then, who are determined not to consult, nor have any communication on such a subject, decide for themselves. I should think myself lost to that regard I owe to my country, and to my immediate constituents in particular, should I abstract myself from the contemplation of the benefits that would flow from knowing the feelings and sentiments of those with whom I am to act. Instead of being an evidence to that aristocratic spirit which has been mentioned, it is only a proof that men, attentive to their business, had preferred that way, which every honest man had in view. I have contemplated the subject with great anxiety, and though I cannot declare that my local situation has had no influence on my mind, yet I will say I endeavored to prevent its having any. I believe that the true interests of the country will be best answered by taking a position eastward and northward of the Susquehanna. The Delaware is one extreme, the Potomac another; but when I reflect how anxious some gentlemen are for the one, and some for the other, I am willing to accommodate both parties, by advancing to a middle ground, to which I hope the public mind will be reconciled. I was also influenced in fixing this opinion, by the sentiment of the celebrated Montesquieu. He had laid it down, that in a country partaking of northern and southern interests, of a poor and productive soil, the centre and the influence of Government ought to incline to that part where the former circumstances prevailed; because necessity stimulates to industry, produces good habits and a surplus of labor; because such parts are the nurseries of soldiers and sailors, and the sources of that energy which is the best security of the Government. The Susquehanna is, in my opinion, south-west of the centre of wealth, population, and resources of every kind. I would beg leave, gentlemen, to suggest another idea. In my view, on the principles of population, the Susquehanna is far beyond the centre; for I do not think it just, on this subject, to take the constitutional computation. Will any gentlemen pretend, that men, who are merely the subject of property or wealth, should be taken into the estimate; that the slaves of the country, men who have no rights to protect, (being deprived of them all,) should be taken into view, in determining the centre of Government? If they were considered, gentlemen might as well estimate the black cattle of New England. I would ask, if it is of no importance to take a position in which the credit of the Government may procure those supplies that its necessities might require? Will the strength and riches of the country be to the north or to the south of the Susquehanna? Certainly to the north. It is the opinion of all the Eastern States, that the climate of the Potomac is not only unhealthy, but destructive to northern constitutions. It is of importance to attend to this, for whether it be true or false, such are the public prepossessions. Vast numbers of Eastern adventures have gone to the Southern States, and all have found their graves there; they have met destruction as soon as they arrived. These accounts have been spread, and filled the Northern people with apprehension. Mr. VINING.--Although I must acknowledge myself a party to the bargain, yet I had no share in making it. It is to me an unexpected bargain. Though the interest of the State which I have the honor to represent is involved in it, I am yet to learn of the committee, whether Congress are to tickle the trout on the stream of the Codorus, to build their sumptuous palaces on the banks of the Potomac, or to admire commerce with her expanded wings, on the waters of the Delaware. I have, on this occasion, educated my mind to impartiality, and have endeavored to chastise its prejudices. I confess to the House, and to the world, that, viewing this subject, with all its circumstances, I am in favor of the Potomac. I wish the seat of Government to be fixed there; because I think the interest, the honor, and the greatness of this country require it. I look on it as the centre from which those streams are to flow that are to animate and invigorate the body politic. From thence, it appears to me, the rays of Government will most naturally diverge to the extremities of the Union. I declare, that I look on the Western Territory in an awful and striking point of view. To that region the unpolished sons of earth are flowing from all quarters; men, to whom the protection of the laws, and the controlling force of the Government, are equally necessary. From this great consideration, I conclude that the banks of the Potomac are the proper station. Mr. SENEY mentioned Peach Bottom, on the Susquehanna, about fifteen miles above tide-water, as the proper place. Mr. GOODHUE did not wish the particular spot pointed out, because some inconvenience would result from such a measure; however, he was free to declare, that his own idea was in favor of a situation near Wright's Ferry. Mr. HEISTER moved to insert Harrisburg in the resolution. He conceived the spot to be more eligible than any yet mentioned; from hence there was an uninterrupted navigation to the sources of the river, and through this place runs the great Western road leading to Fort Pitt, and the Western Territory. A water communication can be effected at small expense with Philadelphia. The waters of the Swetara, a branch of the Susquehanna, about eight miles below Harrisburg, run to the north-east, and are navigable fifteen miles from thence to the Tulpehoken, a branch of the Schuylkill; a canal may be cut across, of about a mile and a half, the ground has been actually surveyed, and found practicable; this will unite the Susquehanna and Delaware, and open a passage for the produce of an immense tract of country. It is but little further from Philadelphia than is Wright's Ferry; and, on many accounts, he thought it a preferable situation for the permanent seat of Government. Mr. MADISON meant to pay due attention to every argument that could be urged on this important question. Facts had been asserted, the impressions of which he wished to be erased, if they were not well founded. It has been said, that the communication with the Western Territory, by the Susquehanna, is more convenient than by the Potomac. I apprehend this is not the case; and the propriety of our decision will depend, in a great measure, on the superior advantages of one of these two streams. It is agreed, on all hands, that we ought to have some regard to the convenience of the Atlantic navigation. Now, to embrace this object, a position must be taken on some navigable river; to favor the communication with the Western Territory, its arms ought likewise to extend themselves towards that region. I did not suppose it would have been necessary to bring forward charts and maps, as has been done by others, to show the committee the comparative situation of those rivers. I flattered myself it was sufficiently understood, to enable us to decide the question of superiority; but I am now inclined to believe, that gentlemen have embraced an error, and I hope they are not determined to vote under improper impressions. I venture to pledge myself for the demonstration, that the communication with the Western Territory, by the Potomac, is more certain and convenient than the other. And if the question is as important as it is admitted to be, gentlemen will not shut their ears to information; they will not precipitate the decision; or if they regard the satisfaction of our constituents, they will allow them to be informed of all the facts and arguments that lead to the decision of a question in which the general and particular interests of all parts of the Union are involved. Mr. STONE found gentlemen had determined on a step that was not generally liked; he wished, therefore, the committee to rise, and give all of them an opportunity of trying to mend the bargain that had been made; perhaps they might find, upon reflection, that they ought to decide the question on more national principles than they seemed yet to be governed by. Mr. SENEY could not say how far the motion was agreeable to every part of America; but he believed it would be acceptable to a very considerable part of the State he had the honor to represent. Mr. SUMTER was in favor of the committee's rising, in order to give gentlemen time to ascertain the facts necessary to guide them to a decision. There was one impropriety which struck him forcibly; the resolution adopted as a principle that the seat of Government ought to be in a convenient place for the navigation of the Atlantic Ocean. But the situation mentioned in the resolution under consideration had no communication whatever with the Atlantic navigation. It had been said, that the Susquehanna afforded the most convenient communication with the Western Territory. He believed the Hudson possessed superior advantages; it connected with the country about the Lakes and the Ohio. From New York to Albany was navigable; from thence to Schenectady, there was a short portage; after ascending Schenectady, there was a short portage of half a mile to the Mohawk; from thence, another short portage to Wood Creek, and thence into Lake Ontario, which connects with Lake Erie; and from thence are portages to the Wabash, Miami, Muskingum or Alleghany, all falling into the Ohio. But the Potomac possessed advantages superior to these; and was, both on account of communicating with the Atlantic and Western Territory, much to be preferred to the Susquehanna. He assured gentlemen that he was unbiased in giving a preference to the Potomac; because, if he studied his own convenience, he should consider New York as more eligible than either. It accommodated the Atlantic navigation in a superior manner, and had its pretensions to a connection with the Western waters, as he had already shown. He hoped, however, that the subject would be debated with candor and good temper, and decided in the way most likely to promote the general interests and harmony of the Union. Mr. SHERMAN was against taking up the subject so soon; but since it had been determined against him,--gentlemen, he presumed, had endeavored to make up their minds,--he had turned his attention to it, and was now prepared to decide. Mr. CLYMER knew the advantages possessed by the Susquehanna in communicating with the Western country; they were mentioned by his colleague; but, with the additional circumstance that the Juniata branch afforded a convenient navigation to a road lately laid out by the State of Pennsylvania, which connected with the Kisskaminetas, from whence was a short voyage down the Alleghany, and shorter still down that to the Ohio, at Pittsburg. He questioned much if the navigation by the Potomac was so convenient. Mr. STONE did not mean to govern his vote on this occasion by what was said to be the sense of the citizens of Maryland; because they were, he apprehended, divided in opinion. One part or the other would be particularly benefited, as the seat of Government should be fixed either on the Susquehanna or Potomac, because those rivers watered its territory. Perhaps the majority of the present inhabitants would prefer the Susquehanna; but as their settlements extended westward, and the population increased, the majority would be favored by the Potomac. Mr. SENEY did not mean to determine this question on the principle of benefiting, exclusively, the citizens of Maryland; he considered himself as a Representative of the Union, and should decide on the principle of general convenience. Mr. TUCKER hoped the committee would rise, in order to give gentlemen time to consider the subject maturely, and to prepare themselves to come forward and discuss, fairly and fully, the advantages and disadvantages of the rival places. He could not believe they meant to decide a question of this importance on the superficial discussion which had taken place. The question, on the committee's rising, was now put, and it passed in the negative; for it 23, against it 27. Mr. STONE.--We are called upon, sir, to determine a question that has not been introduced to our notice more than two hours and a half; a question too, as admitted on both sides, of the highest importance to the interests and harmony of the Union. I cannot help thinking it a hardship to be compelled so abruptly to a decision; but since it must be the case, I shall take the liberty of suggesting a few of my thoughts, in order to justify the vote I mean to give. There are a variety of considerations and doubts in my mind, respecting the two rivers that have been mentioned. These doubts are increased when a particular place is named upon one of them; but had gentlemen told us, that they had settled this point also, it might have precluded any sort of debate whatever; because when an agreement had taken place, not only as to the banks of the Susquehanna, but as to the favored spot on those banks, we should not have entertained a single hope that we could have changed the position. But, as gentlemen differ among themselves on this point, perhaps they will permit us to participate with them in selecting the place most likely to give general satisfaction. But how can they suppose we are prepared on this head, without a general consideration of all the places which may offer themselves along the east bank of the river. I am not apprised, sir, of the extent of this continent certainly, because I never calculated it by figures, or measured it on the map; but if there is the smallest degree of accuracy in the draft that has been handed about, no man, who takes a view of it, in my opinion, will doubt a single moment, whether the Susquehanna is the river, which nearly equally divides the territory of the United States, in its extent north and south, that separates, in equal parts, the country east and west. The eastern part, I take it, is little, if any thing, more than half as large as what lies west. We observe that the course of the main branch tends more toward the Atlantic Ocean, than it does toward the Western Territory; but even its western inclination goes only toward the lakes Erie and Ontario, through the middle of which runs the boundary line of the United States. How can this, then, be supposed a direct or convenient communication with that part of the country which is usually termed, and is in fact, the Western Territory? In fixing the permanent residence, we ought not only to have in view the immediate importance of the States, but also what is likely to be their weight at a future day; not that we should consider a visionary importance, or chimerical expectation, but such a one as can be demonstrated with as much certainty as effects follow their causes. I apprehend the increase of population to the eastward is merely conditional; there is nothing to invite people to settle in the northern parts of this continent, in preference to the southern; even if they were settled there, every principle which encourages population would operate to induce them to emigrate to the southern and western parts. We know the northern climate is severe, the winters long, and summers short, and that the soil is less fertile. Were we not assuredly acquainted that this was the case on the continent of America, we should be led to the same conclusion, by reasoning from our knowledge of the other parts of the globe. Men multiply in proportion to the means of support, and this is more abundant in a mild than a severe climate. Hence, I infer, that the climate, and means of subsistence, will ever operate as a stimulus to promote the population of the Southern, in preference to the Northern States. This doctrine is daily exemplified. If we advert to the situation of that part of the Western country, called Kentucky, and compare its increase of population since the war, with any part of the Eastern States, we shall find men multiplied there beyond any thing known in America; and if we consider its natural advantages, we shall conclude it will be an important part of the Union. The river which has been mentioned by the southern gentlemen is, as far as I am acquainted, extremely well calculated to furnish Government with the key of that country; and a river, I believe, richer in its exports than any I have contemplated on the face of the earth. A call was now made to order, and Mr. STONE sat down. A desultory conversation took place on the point of order. It was contended, that the question was on the insertion of Harrisburg, in the proposition offered by Mr. GOODHUE; whereas Mr. STONE was speaking to the main question. Messrs. CARROLL, LEE and MADISON insisted that Mr. STONE was in order, inasmuch as Mr. HEISTER'S motion necessarily involved the main question, and was inseparable from it. But it was decided by the Chair to be out of order; whereupon the question was taken, without further debate, on inserting Harrisburg, and it was determined in the negative. The main question being now before the committee, Mr. STONE proceeded. I feel myself unhappy to be obliged to address gentlemen, who are not disposed to attend to any thing I may say; but as gentlemen have chosen this time for discussing the subject, they will not think it improper in me to persist in detailing my ideas. When I was interrupted by the call to order, I was about to show the importance of the Potomac to the United States. Its waters afford a practical, safe, and short communication with the Ohio and Mississippi, beyond comparison preferable to the Susquehanna. If it is intended that the people settled upon those great rivers should communicate with the General Government, after ascending the former they must proceed a vast distance northward, up the Alleghany, against a rapid stream, before they can reach the Susquehanna. I am inclined to believe a land-carriage would be better than such a laborious round-about water communication. Now the Potomac, as I am informed, connects with the Youghiogheny, a river less rapid than the Alleghany, and is itself communicable with the Atlantic. In this case, the Potomac will be the highway for such vast quantities of wealth as to give every superiority; and, however we may determine at this day, it will not be long before the seat of Government must be carried thither. The vast population that is extending itself through the Western country requires that the Government should take a position favorable to its convenience; because new settlements at a vast distance from the old are more exposed to temptation than others; but in the present case, it is proper for us to guard against the operation of a foreign country, which seems to be forming settlements near our frontiers to rival ours. It may be the more necessary, inasmuch as we ought to keep the boundary line distinct between the Spaniards and savages, as I fear, do what we will, we run the greatest risk of entering into a quarrel with them; for, it is well known, that emigrants, in forming new settlements, are not much concerned about an ascertainment of jurisdiction; they are generally bold, enterprising spirits, who feel some aversion to strict government; it is therefore necessary that the Government should approach toward them, and be placed in such situation as would give it the greatest possible influence over them. Beside their contiguity to a rival nation, they are independent in their condition; they want hardly any thing this country can give; their soil is rich and fertile; their exports will furnish them with every foreign article from the southward which they can require. Their interests are more strongly connected with the Southern States than the Southern States are with the Eastern. The advantages of this Government are felt, in a peculiar manner, by the mercantile and commercial States; the agricultural States have not the same strong reasons for maintaining the Union. Hence we may apprehend that the Western country may be inclined, as it advances its importance, to drop off. The Susquehanna is no bond by which to hold them; its direction is more northern than westerly. Upon the whole, I am inclined to believe that it would not give general satisfaction at the present day; and the inequality would daily grow more striking, until we should be compelled to remove again to where there was a probability of finding a centre of territory as well as population. I have thrown out these ideas in a crude manner, but gentlemen have forced me to it by their urgency to take the question; I could wish to be allowed time for further discussion, and I believe it would be no ill sacrifice of a day, if we were to put off the determination till to-morrow. Mr. LEE observed, that since gentlemen would not admit of a moment's delay; since they seemed to declare, that they had settled the matter without giving an opportunity for full discussion; since the House were hurried to a decision on a point that involved the welfare of the community, duty to his country, duty to the better half of the territory of the United States, called on him to come forward with another proposition. He then moved to strike out the words "east bank of the Susquehanna," and to insert a clause to this effect; that, whereas the banks of the Potomac united all the aforesaid advantages, with fertility of soil, salubrity of climate, &c. Resolved, That the permanent seat of Government ought to be fixed somewhere on the banks of the said river. He flattered himself that these two rival places would be considered with an attention that would do honor to the House; that their several advantages would be fully compared, and that such a decision would result as would be for the lasting benefit of the United States. He then stated at large the comparative advantages of the Potomac; its great and increasing improvements; the extent of its navigation; its direct communication with the Western country, and its easy communication with the Eastern and Southern States. The House, he said, were now to determine whether regard was to be had to the people of the Western Territory, to the greater portion of the territory of the Union; in point of climate, it was extremely salubrious; in fertility of soil, it was exceeded by no country on earth. Thither would emigrants flock from all quarters. He asked whether this Government was intended for a temporary or a lasting one? Whether it was to be a fleeting vision, or to continue for ages? He hoped the result would proclaim that the Government was calculated for perpetuity; and that the common interests of the country had been consulted. If that was done, the Government would be removed to the Potomac; if not, we should stop short of it; and what would be the consequence? He said he was averse to sound alarms, or introduce terrors into the House; but if they were well founded, he thought it his duty. It was well known with what difficulty the constitution was adopted by the State of Virginia. It was then said, that there would be confederacies of the States east of Pennsylvania, which would destroy the Southern States; that they would unite their councils in discussing questions relative to their particular interests, and the Southern States would be disregarded. To these suspicions, it was answered, no! It was contended that the magnanimous policy, arising from mutual interests and common dangers would unite all the States, and make them pursue objects of general good. But if it should be found that there were such confederacies as were predicted, that the Northern States did consult their partial interests, and form combinations to support them, without regarding their Southern brethren, they would be alarmed, and the faith of all south of the Potomac would be shaken. It would be shown to them, that what had been predicted by the enemies to the constitution had come to pass; that the Northern States had not waited till the Government was organized before they sacrificed the Southern people to their own interests. Let the seat of Government be fixed where it may, Virginia had not solicited Congress to place the seat of Government in her State. She only contended, that the interests of the Southern and Western country should be consulted; and he declared that these interests would be sacrificed, if Congress fixed upon any place but the Potomac. The greater part of Virginia was distant from that river. Many parts were not nearer than New Jersey. She wished not to have the seat on the Potomac but for the general good; it was not for the benefit of that State, but for the benefit of the Union. Mr. LAWRENCE said, it was improper and unnecessary to hold out terrors to the fancy of members. The true way to convince them, was to address their understandings. He was certain there was no dangerous confederacy which the gentleman had talked of; and believed the conduct of the Northern States would bear the strictest scrutiny; that, if probed to the bottom, it would be found fair and candid. He remembered in the debate upon the Tonnage bill, a gentleman from Virginia observed, that could the moderate and equal policy of that day's proceedings have been foreseen in the convention of Virginia, many objections that were there produced against the constitution would have been thereby obviated. He trusted, that, in conducting the business before them, gentlemen could find no cause, eventually, to entertain different sentiments from what he then delivered. Mr. MADISON.--I acknowledge, that, on a former day, I made the observation alluded to with singular complacency. I said, I had found a moderation and liberality prevailing here, which I sincerely believed, if foreseen in the convention of Virginia, would have obviated a very powerful objection to the adoption of the Federal constitution. But, give me leave now to say, that if a Prophet had risen in that body, and brought the declarations and proceedings of this day into view, that I as firmly believe Virginia might not have been a part of the Union at this moment. A motion was now made for the committee to rise, and several gentlemen said, they wished it to prevail, in order that an opportunity might be afforded for a fuller discussion. Mr. SEDGWICK hoped the committee would not rise. Will it be contended, that the majority shall not govern; and shall the minority, because they cannot carry their points, accuse the House of want of candor? Are we to be told, that an important State would not have joined the Union, had they known what would have been the proceedings of this House. Gentlemen have brought forward this business themselves; they have precipitated the House into it. We prayed, we supplicated for time; and now gentlemen, from some causes not explained, wish to postpone the matter, in order to have time to deliberate. He believed that a deliberation of six weeks would not alter a single opinion, and therefore it was not proper to consume the public time uselessly. Mr. MADISON.--When I alluded to the proceedings of this day, I contemplated the manner in which the business was conducted; and though I acknowledge that a majority ought to govern, yet they have no authority to deprive the minority of a constitutional right; they have no authority to debar us the right of free debate. An important and interesting question being under consideration, we ought to have time allowed for its discussion. Facts have been stated on one side, and members ought to be indulged on the other with an opportunity of collecting and ascertaining other facts. We have a right to bring forward all the arguments which we think can, and ought to have an influence on the decision. It is unusual, on a partial discussion, even of questions of inferior magnitude, to decide in the course of a single day. How, then, can gentlemen reconcile their conduct of this day to the liberality they have hitherto shown? This manner of proceeding would mark a genius in this body which will contradict the expectations of its warmest friends. I hope nothing will be fixed by a hasty determination. I said before, and repeat it again, that I wish to make some observations on what has been advanced, for which at present there is not time. But, if there was, I do not wish to address a determined and silent majority. No, sir, if this be the temper of to-day, let me appeal to a more favorable temper to-morrow. If gentlemen refuse this appeal, I must submit; but I will, to the last moment, assert my right, and remonstrate against a precipitate decision. Mr. BURKE observed, that the Northern States had had a fortnight to manage this matter, and would not now allow the Southern States a day. What was the conduct of gentlemen? A league has been formed between the Northern States and Pennsylvania. Mr. FITZSIMONS interrupted Mr. BURKE, and denied the assertion, as it respected Pennsylvania. Mr. BURKE then proceeded, and said that the Eastern members had combined with some other States, he could not positively say which, but the first information that was furnished was given this morning, every gentleman had heard it as well as himself, but that had nothing to do with his object; he wanted time to get information; and called on gentlemen, for the honor of the House, to comply with this request. Mr. WADSWORTH said, he rejoiced to hear the gentlemen calling for time, and crying out fair play. He remembered when he entreated the gentleman who spoke last, and others, not to precipitate themselves into this situation; his entreaties had been of no avail. Knowing that the pride of a majority was one of those things to which he had to submit, he, with all the New England members, solicited for time. With respect to bargaining, he believed that it would reflect no honor on either side of the House. He said he must either give his vote now, or submit to more bargaining. He was willing that the whole business of bargaining should be exposed; he would not excuse himself; he did not dare to go to the Potomac. He feared that the whole of New England would consider the Union as destroyed. Since the matter had been so prematurely brought on, since members had been forced, and, as it were, dragged by the throat to this business, he hoped it was now finished. The question was now put, on the rising of the committee, and carried: Whereupon the committee rose and reported progress, and then the House adjourned. THURSDAY, September 4. _Seat of Government._ The House again resolved itself into a Committee of the Whole, on the Resolution for establishing a permanent Seat of Government, Mr. BOUDINOT in the chair. Mr. STONE wished to hear the sentiments of the gentleman who first brought forward this business: he expected to derive some advantage from that gentleman's knowledge of the country, which, he presumed, was pretty accurate, as it was derived from actual observation. After waiting some time, Mr. STONE repeated his request, under an apprehension that he had not the honor of being heard by the worthy gentleman. Mr. GOODHUE rose and said, he had given his sentiments yesterday, but, if the gentleman desired it, he was ready to repeat them. Mr. STONE said, he addressed his request to the gentleman from Pennsylvania. Mr. SCOTT.--I understood the gentleman so, and I have no objection to giving my sentiments on the occasion. The resolution I laid on the table has been honored with the vote of a majority of the committee. It contains such principles as, I believe, ought to govern in the settlement of the grand question: they have declared, that they mean to be governed by these principles, and this is a declaration to the world that their hearts are good. What may follow in consequence of that resolution, cannot impeach the motive, it can only prove, that our heads are uninformed; an error of the head is pardonable, but an error of the heart is not easily forgiven. Whether the spot which has been moved is the right spot or not, seems to be the matter under inquiry. I had prepared myself with documents, which I should have produced had they been needed, to prove, that the State I have the honor to represent involves, within its limits the centre of wealth and population of the United States, taking the sea-coast for a guide; for all that has been said of the importance of the Western country, has not prevailed on me to imagine, that all the vacant territory should be taken into view, the same as the settled and cultivated parts; my resolution had no other idea but that the Atlantic States should consent to go as near that territory as their convenience would allow. I am convinced that going further than would suit the Atlantic States would injure the Western country itself. Mr. MADISON said, if this delay should not have produced any alteration in the sentiments of the gentlemen, it will at least soften that hard decision which seems to threaten the friends of the Potomac. He hoped that all would concur in the great principle on which they ought to conduct and decide this business; an equal attention to the rights of the community. No government, he said, not even the most despotic, could, beyond a certain point, violate that idea of justice and equal right which prevailed in the mind of the community. In Republican Governments, justice and equality form the basis of the system; and perhaps the structure can rest on no other that the wisdom of man can devise. In a Federal Republic, give me leave to say, it is even more necessary and proper, that a sacred regard should be paid to these considerations. For beyond the sense of the community at large, which has its full agency in such a system, no such Government can act with safety. The Federal ingredient involves local distinctions, which not only produce local jealousies, but give, at the same time, a greater local capacity to support, and insist upon equitable demands. In a Confederacy of States, in which the people operate, in one respect as citizens, and in another as forming political communities, the local Governments will ever possess a keener sense and capacity, to take advantage of those powers, on which the protection of local rights depends. If these great rights be the basis of republics, and if there be a double necessity of attending to them in a Federal Republic, it is further to be considered, that there is no one right, of which the people can judge with more ease and certainty, and of which they will judge with more jealousy, than of the establishment of the permanent seat of Government; and I am persuaded, that however often this subject may be discussed in the representative body, or however the attention of the committee may be drawn to it, the observations I have made will be more and more verified. We see the operation of this sentiment fully exemplified in what has taken place in the several States. In every instance where the seat of Government has been placed in an uncentral position, we have seen the people struggling to place it where it ought to be. In some instances they have not yet succeeded, but I believe they will succeed in all. In many they have actually gained their point. With respect, however, to the Federal Government, there is one consideration that shows, in a peculiar manner, the necessity and policy of paying a strict attention to this principle. One of the greatest objections which has been made by the opponents of the system, which has been allowed most weight by its friends, is the extent of the United States. It has been asserted by some, and almost feared by others, that within so great a space, no free Government can exist. I hope and trust, that the opinion is erroneous; but, at the same time, I acknowledge it to have a certain degree of force, and it is incumbent on those who wish well to the Union, to diminish this inconvenience as much as possible. The way to diminish it, is to place the Government in that spot which will be least removed from every part of the empire. Carry it to a remote position, and it will be equivalent to an extension of our limits; and if our limits are already extended so far as warrants, in any degree, the apprehension before mentioned, we ought to take care not to extend them further. The seat of Government is of great importance, if you consider the diffusion of wealth that proceeds from this source. I presume that the expenditures which will take place, where the Government will be established by those who are immediately concerned in its administration, and by others who may resort to it, will not be less than half a million dollars a year. It is to be regretted that those who may be most convenient to the centre should enjoy this advantage to a higher degree than others; but the inequality is an evil imposed by necessity; we diminish it as we place the source from which those emanations of wealth are to proceed as near the centre as possible. If we consider, sir, the effects of Legislative power on the aggregate community, we must feel equal inducements to look for the centre, in order to find the proper seat of Government. Those who are most adjacent to the seat of Legislation will always possess advantages over others. An earlier knowledge of the laws, a greater influence in enacting them, better opportunities for anticipating them, and a thousand other circumstances, will give a superiority to those who are thus situated. If it were possible to promulgate our laws, by some instantaneous operation, it would be of less consequence in that point of view where the Government might be placed; but if, on the contrary, time is necessary for this purpose, we ought, as far as possible, to put every part of the community on a level. If we consider the influence of the Government in its Executive Department, there is no less reason to conclude that it ought to be placed in the centre of the Union. It ought to be in a situation to command information relative to every part of the Union, to watch every conjuncture, to seize every circumstance that can be improved. The Executive eye ought to be placed where it can best see the dangers which may threaten, and the Executive arm, whence it may be extended most effectually to the protection of every part. Perhaps it is peculiarly necessary, that, in looking for the position, we should keep our eye as much as possible towards our Western borders; for a long time dangers will be most apt to assail that quarter of the Union. He was sure, that if justice required us to take any one position in preference to another, we had every inducement, both of interest and of prudence to fix on the Potomac, as most satisfactory to our Western brethren. It is impossible to reflect a moment on the possible severance of that branch of the Union without seeing the mischiefs which such an event must create. The area of the United States divided into two equal parts, will leave, perhaps, one half on the west side of the Alleghany Mountains. From the fertility of the soil, the fineness of the climate, and every thing that can favor a growing population, we may suppose the settlement will go on with every degree of rapidity which our imagination can conceive. If the calculation be just, that we double in twenty-five years, we shall speedily behold an astonishing mass of people on the Western waters. Whether this great mass will form a permanent part of the confederacy, or whether it will be separated into an alien, a jealous and a hostile people, may depend on the system of measures that is shortly to be taken. The difference, he observed, between considering them in the light of fellow-citizens, bound to us by a common affection, obeying common laws, pursuing a common good, and considering them in the other light, presents one of the most interesting questions that can occupy an American mind. Instead of peace and friendship, we shall have rivalship and enmity; instead of being a great people, invulnerable on all sides, and without the necessity of those military establishments which other nations require, we shall be driven into the same expensive and dangerous means of defence. We shall be obliged to lay burthens on the people, to support establishments which, sooner or later, may prove fatal to their liberties. It is incumbent on us, if we wish to act the part of magnanimous legislators, or patriotic citizens, to consider well, when we are about to take a step of such vast importance, that it be directed by the views he had described; we must consider what is just, what is equal, and what is satisfactory. On a candid view of the two rivers, he flattered himself that the seat which would most correspond with the public interest would be found on the banks of the Potomac. It was proper that we should have some regard to the centre of territory; if that was to have weight, he begged leave to say, that there was no comparison between the two rivers. He defied any gentleman to cast his eye in the most cursory manner over a map and say that the Potomac is not much nearer this centre than any part of the Susquehanna. If we measure from the banks of the Potomac to the most eastern parts of the United States, it is less distant than to the most southern. If we measure this great area diagonally, the Potomac will have the advantage. If you draw a line perpendicularly to the direction of the Atlantic coast, we shall find that it will run more equally through the Potomac than through any part of the Union; or, if there be any difference between one side and the other, there will be a greater space on the south-west than on the north-east. All the maps of the United States show the truth of this. From the Atlantic coast to that line which separates the British possessions from the United States, the average distance is not more than one hundred and fifty miles. If you take the average breadth of the other great division of the United States, it will be found to be six, seven, and eight hundred miles. From this view of the subject, which is not easy to describe by words, but which will strike every eye that looks on a map, I am sure that if the Potomac is not the geographical centre, it is because the Susquehanna is less so. Mr. CLYMER begged to set the gentleman right; his colleague, if he understood him, had only related the communication by the north-western branches, but there was a communication by the Juniata, a branch of the Susquehanna, about fifteen miles above Harrisburg, tending westerly, and navigable eighty miles, from whence to the Connemagh was a portage, with a road actually laid out of about forty miles, hence you descend the Kisskaminetas to the Alleghany, and from thence to Pittsburg is thirty miles. Mr. SCOTT knew this communication pretty well, but we who live in that country never take it into consideration, as the waters are too small to afford a certainty of communication, but even here the portage was greater than between the Potomac and Youghiogheny. Mr. CLYMER said, with respect to the navigation of the Juniata, that it was in evidence before the House of Assembly of Pennsylvania, when they were considering the means of uniting that navigation with the western waters, that produce to the amount of fourteen hundred bushels had been brought down it to Middletown. Mr. MADISON proceeded and said, he wished every fact to be ascertained that could throw any light upon the subject. Taking the Susquehanna, as it was practicable for navigation, it would be found, that through that route of communication, Fort Pitt would be four or five hundred miles from the proposed seat on its banks, and that the distance by land was not less than two hundred and fifty miles; whereas, through the Potomac the distance from the proposed spot on its banks to Fort Pitt was not calculated at more than two hundred and fifty miles, and he believed the distance by land would be found not to exceed one hundred and sixty or one hundred and seventy miles. Whether we measure the distance by land or water, then, the result is in favor of the Potomac. If we consider the progress already made in opening this great channel, its title becomes still stronger. Let me add, that it has been found, on accurate research, that the waters communicating with the Ohio are not more than two or three miles distant from the sources of the Potomac. This is a fact of peculiar importance. The gentleman from Massachusetts yesterday raised great objections against the Potomac, because it was, as he supposed, subject to periodical maladies, from which the other river was free. I am not authorized, from personal experience, or very particular information, to draw a comparison between them; but there are some general facts that may serve to show, that if there is any difference, it is more likely to be in favor of the Potomac than of the Susquehanna. The position contemplated on the banks of the former is considerably further from tide water than the place proposed on the latter. On this account, therefore, we have little reason to suppose that the Potomac is more unhealthy. If we regard their comparative situations, westwardly, the spot on the Potomac is almost as much further to the west, as it is distant from the proposed spot on the Susquehanna; and he well knew that, generally speaking, as were tire towards the Western and upper country, we are generally removed from the causes of those diseases to which southern situations are exposed. As the two places are moreover in the same latitude, the objection advanced, with respect to that point, cannot apply to one more than the other. It is only their western or eastern position, their remoteness from, or their proximity to the lower country, and to fresh or stagnant waters, that can possibly affect the question. It is not because we advance so much to the south that we advance to the centre, it is because we go more to the west. I do not know that there is a difference of more than a degree and five or six minutes between the latitude of New York and the place proposed on the Potomac. Mr. AMES never intended that this question should be carried through the committee by the strength of a silent majority; he had confidence in the weight of the arguments to be urged in favor of the Susquehanna, and he was willing to put the decision of the question on that ground. He would now come forward, and give the reasons of his opinion, especially as gentlemen had entered fully into the reasons which guided their own to a different conclusion. He did not conceive it would be necessary for him, coming from the part of the United States from which he did, to disclaim the local views and narrow prejudices with which the subject teemed. He had feared, when the question was first brought forward, that the minds of gentlemen would be highly fermented, indeed so much, that he almost despaired of coming to a proper decision, nor did he think these apprehensions were illusive, if he judged from what had already taken place. He had observed that some gentlemen, whose discernments were clear and who were generally guided by the straight line of rectitude, had been most surprisingly warped on the present occasion; he was fearful that their wishes had misled them from a due regard of the real object of their pursuit, viz: the public interest and convenience. He was sensible, that he himself was liable to some improper impressions; but he trusted he did not feel them in that degree which he thought he saw in others. He was willing to be led by the great principles which other gentlemen had laid down as the rule of their decision; but he thought they would lead to a different conclusion from what had been drawn from them; he admitted that a central situation is to be taken, and in considering this centre, the centre of a sea-coast line ought to be regarded, because it is more conveniently accessible, has more wealth, and more people than an equal area of inland country. Being more liable to invasion, government should be near to protect it. It is the interest of the back country to have the Government near the sea, to inspect and encourage trade, by which their abundant produce will find an export. And lastly, he said, the contingency of the separation of the Western country was a reason for preferring the sea-coast. He proceeded next to say, there will not be any contest where this centre of the sea-coast line is to be found: it falls between the rivers Potomac and Susquehanna. It will be found that there are good reasons why we should rather move east than south. If the sea-coast line is to be preferred, it will follow that the back lands, west of the Ohio, which the gentleman from Virginia has so often taken into his calculations, will be excluded; they are not peopled; they do not affect the sea-coast line; and that line has already been voted to be the proper one by the committee. As it is true that the sea-coast has more wealth and more people than the inland country in proportion to the extent, it is equally true that the eastern half of the sea-coast has more of both than the southern. If we reckon Maryland, which will be as well accommodated by the Susquehanna as by the Potomac, we shall find the population of the eastern part nearly two millions, and that of the southern only one million, and the population of free inhabitants still less in favor of the latter. But, sir, instead of seeking a centre geographically, we should consider the centre of common convenience. The place is the proper one where the greatest number of persons will be best accommodated. I will endeavor to show that that will be on the Susquehanna. Is the zeal of gentlemen, who oppose this design, influenced by their despair of removing the seat of Government afterwards? I believe the people of America will not complain of it. If fixed there, I think it will be found convenient and will remain there. The Susquehanna is the centre of the common convenience. At this moment there are more wealth and more inhabitants east than south of it. But the future population of America is calculated, and it is pretended that the balance of population is receding from the East. Surely the present inhabitants may be allowed principally to consult their own convenience. West of the Ohio is an almost immeasurable wilderness; when it will be settled, or how it will be possible to govern it, is past calculation. Gentlemen will pardon me if I think it perfectly romantic to make this decision depend upon that circumstance. Probably it will be near a century before those people will be considerable; if we fix the national seat in the proper place now, it would give me no inquietude to know that a hundred years hence it may be liable to be removed; but, in fact, the principle which is assumed by the committee, and which I have attempted to justify, of taking the centre of the sea-coast line, will, even in the event of that vast tract being settled, furnish abundant reasons for its remaining on the Susquehanna. I will not recapitulate those reasons. We must take some principle to guide us; and though some inequalities will appear, yet let gentlemen remember, that in so vast a country great inconveniences will attend the communications of the people with Government, be the seat of it where it may; and by taking the centre of the sea-coast line there will be less than any other principle. It will be found best to accommodate the greatest number; or, in other words, to be the centre of common convenience: indeed, this is not denied to be true at this moment; but the case is said to be changing. On the one hand, I think it is Utopian to calculate upon the population of the United States a century hence; and, on the other hand, I admit that it is impolitic at least, perhaps unjust, to confine our attention to the present population; a quarter of a century may be a medium. Will gentlemen deny that trade and manufactures will accumulate people in the Eastern States, in proportion of five to three, compared with the Southern? The disproportion will, doubtless, continue to be much greater than I have calculated. It is actually greater at present; for the climate and negro slavery are acknowledged to be unfavorable to population: so that husbandry, as well as commerce and manufactures, will give more people in the Eastern than in the Southern States. The very circumstance that gentlemen found their reasonings upon is pretty strongly against their calculations. They tell us of the vast quantities of good land still unsettled in their States; that will produce a thin population; for the old lands will not be crowded, so long as new ones are to be had. Mr. CARROLL begged leave to give the Committee some information respecting the distance from tide-water to Fort Cumberland; from the tide-water to the Little Falls was three miles, to the Great Falls six more, from thence to the Seneca Falls was also six more, and from thence to Old Town one hundred and seventeen; which last place was fifteen miles from Fort Cumberland, making in all one hundred and forty-five miles, instead of two hundred, as stated by the gentleman. Mr. AMES imagined his statement to be nearly right, and he found Mr. JEFFERSON stated in his Notes, that the Falls of the Potomac were fifteen miles in extent, and a navigation extremely difficult to be made. Mr. CARROLL said, it was not near that distance; in the fifteen miles there were three falls: the Seneca, the Great and Little Falls, but they occupy but a small part of the fifteen miles; he could certainly form some judgment of a place which he might say was almost at his door, and did not expect that Mr. JEFFERSON'S Notes would have been adduced as an authority to contradict information he had given in his place. As to the difficulty of the navigation, he had to observe that many of the obstacles were already so far removed as to render the transportation down to the Great Falls practicable; that there the canal was nearly finished, and ready to sink the lock-seats and insert the frames, so that in a little time there was a probability that no impediment whatever would obstruct the descent of produce to the tide-water. The question, on Mr. Lee's motion for striking out Susquehanna, and inserting Potomac, was put and lost; for it 21, against it 29. Mr. MADISON then moved, to add, after "Susquehanna" the words "or Potomac;" this would furnish an opportunity to examine and compare the two situations. It was so favorable to a discovery of the truth, that he did not doubt but gentlemen who were desirous of grounding their decision upon a full understanding of the subject would agree to the motion. Mr. BOUDINOT seconded this motion, and supported it, by observing the necessity there appeared to be, of obtaining a more accurate knowledge of the two rivers, as gentlemen seemed to differ materially with respect to the matter of fact. Mr. SHERMAN contended, upon the principles adopted yesterday by the committee, that they could not think of going to the Potomac; he said, that taking the population, even allowing the slaves in the Southern States, there was the greatest weight of population north-east of the Susquehanna; but upon the ratio of representation, at a member for forty thousand inhabitants, there were but one million two hundred thousand south of Pennsylvania, one million four hundred thousand north, including Pennsylvania; but if the calculation was made from the Potomac, the South would contain nine hundred and sixty thousand inhabitants, and the North one million six hundred and eighty thousand. Now, he would ask, if gentlemen could expect that the northern people would incline to go so far south? He apprehended they would not. The question being taken on inserting "or Potomac," it passed in the negative. On motion of Mr. PAGE, the committee rose and reported progress, and then the House adjourned. SATURDAY, September 5. _Permanent Seat of Government._ The House then resolved itself into a Committee of the Whole, on establishing the permanent residence of Congress; when Mr. FITZSIMONS presented the following resolution: _Resolved_, As the opinion of this committee, that the President of the United States be authorized to appoint ---- commissioners, to examine, and report to him, the most eligible situation on the east bank of the Susquehanna, for the permanent seat of Government of the United States. That the said commissioners be authorized, by and with the advice of the President, to purchase such quantity of lands as may be thought necessary, and to erect thereon, within ---- years, suitable buildings for the accommodation of the Congress, and of the officers of the United States. That the Secretary of the Treasury, together with the commissioners so to be appointed, be authorized to borrow a sum not exceeding ---- dollars, to be paid in ---- years, with interest, at the rate of ---- per cent. per annum, payable out of the duties on impost and tonnage, to be applied to the purchase of the land, and the erection of the buildings aforesaid. And that a bill ought to pass, in the present session, in conformity with the aforegoing resolutions. Mr. SMITH (of South Carolina) doubted the propriety of the resolution, because he conceived the declaration in the constitution required a cession of territory as well as jurisdiction. If he was joined in this sentiment by the committee, he would move that the President be empowered to appoint commissioners to examine and report a proper place on the banks of the Susquehanna for a federal town, and that, whenever the State of Pennsylvania shall cede to the United States a certain district or territory, not exceeding ten miles square, Congress would accept thereof for the above purpose. Mr. LAWRENCE would inquire for what purpose the cession, mentioned in the constitution, was required? It was, in the words of that instrument, to exercise exclusive legislation in all cases whatsoever; now, did this consequence involve in it a territorial possession? It certainly did not. It involved nothing more than the power of making laws independent of the State jurisdiction. The gentleman might have carried his idea further, for as the cession is to be made by particular States, it seems to infer that two States, at least, should be concerned in the cession; but would objections, from such forced constructions, have any weight in the judgment of the committee? He trusted they would not. He supposed it more rational to attend to the plain literal meaning of the constitution than to engage in the discussion of the refined speculations of ingenious men. Mr. VINING observed, that Delaware, Maryland, and Virginia, had offered to cede territory, as well as jurisdiction, and there would be a great impropriety in expending the federal treasure, in purchasing the soil, when they might have it without expense. Mr. AMES endeavored to show that such a cession, as was contemplated in the constitution, might be made by one State to another, without giving a property to a foot of land, by comparing it with the cession of Silesia to Prussia, where not a single acre of soil was conveyed, but of jurisdiction to the whole province; so, when territory changes its government, by being the sacrifice of a treaty of peace. He supposed that Congress were to purchase the soil necessary to erect buildings for the accommodation of the Government, and was satisfied the cession might be made subsequent to their election of a particular spot. Mr. SENEY.--The gentleman from Delaware has said, that Maryland proposed a cession of soil; but I believe, sir, there is not such a word as soil mentioned in the law. Mr. CARROLL agreed with his colleague, and supposed that a cession of soil could not have been contemplated, because the State of Maryland had offered any part of the State, not excepting the town of Baltimore. He believed if Congress were disposed to fix in that town, it would be agreeable to the State; but he did not imagine they would agree to give the General Government a property to the whole town, and the surrounding country. The other parts of the State had never contemplated making the inhabitants of Baltimore a compensation for such an immense property. Mr. GOODHUE believed, if the House had agreed to go to the Potomac, there would have been none of these constitutional difficulties stated. It was well known, he said, that the gentlemen from the eastward had no desire to take up the subject; but those from the southward were sanguine in their expectations that they should get the Government to the Potomac; and were, therefore, for pressing the business, and not allowing it to be postponed as was contended for on the other hand. Mr. MADISON said, the business was not brought on by their original motion, though they gave it their support. It was true, that a proposition for postponement was made, but what was the extent of that postponement? Till December or January next. Was there any reason to suppose that those gentlemen, who were, at this day, opposed to the Potomac, would give in to such a change of opinion by that time, as to induce us to agree to their proposition. We saw no reason to expect such a change. And, as in fact, we find a predetermined majority ready to dispose of us, the sooner we know our destiny the better; for it can be of little consequence, if we are to be disposed of, whether we are disposed of in September or December. Mr. WADSWORTH.--The reiteration of being disposed of by bargaining, induces me to rise and make one remark. It is a notorious fact to the members within these walls, that the New England members, to a man, were opposed to a decision at present; and that they were disposed to accommodate the Southern States. They refused all bargaining, till they were assured there was a bargaining set on foot to carry them to the Potomac; why, then, are we reproached with this? Whatever bargaining there has been, we were the last to come into it; we never thought of it, till we were told that we were a property, and should be disposed of, unless we took care of ourselves. I hope, as we have gone so far, we shall settle the subject in dispute, by granting the money and erecting the necessary buildings. Mr. JACKSON denied being concerned in any bargaining whatever, and defied any gentleman to say he knew any thing of one, till he heard it mentioned on this floor; he was determined to keep himself disengaged, and to vote according as his judgment should lead him, after hearing the subject coolly and thoroughly discussed. Mr. MADISON hoped, if he travelled a little out of order, he should be justified, after what had taken place; but he could not withhold this public declaration of his wish, that every thing that had passed on the subject alluded to by the gentleman from Connecticut, (Mr. WADSWORTH,) were to be fully understood, and were reduced to writing. Every thing he knew of it he was willing, on his part, to put into that form; and he was well persuaded that it would be found, on examination, that the opposition of the Southern gentlemen was of a defensive nature, and that they had not listened to a proposition, until they had reason to think it necessary to prevent a sudden and improper decision of this very important question. Mr. SMITH, of South Carolina, begged gentlemen to remember, that all the Southern members had not been in favor of bringing forward the business at the present session; he had opposed it as well as some others. Mr. LEE conceived it to be his duty to present once more the preamble, which had been rejected in committee. He flattered himself, after the discussion which had taken place, that gentlemen were prepared to decide on liberal and national principles, and therefore they would adopt those he presented. Mr. SENEY approved of the Susquehanna in preference to the Potomac, on every principle which had been brought into view, as proper to guide the House in deciding the present question. He treated the alarm which gentlemen apprehended would be given by fixing on the Susquehanna as merely ideal, and existing nowhere but in the imagination of gentlemen; so far from exciting jealousy, or disturbing the public mind, he contemplated it as tending to allay uneasiness, and to give general satisfaction. On motion, the House now adjourned. MONDAY, September 7. _Permanent seat of Government._ The House resumed the consideration of the resolutions reported by the Committee of the Whole for establishing the permanent residence of Congress. Whereupon, the first resolution was agreed to, and the second, to wit: _Resolved_, That the permanent seat of the Government of the United States ought to be at some convenient place on the east bank of the river Susquehanna, in the State of Pennsylvania; and that, until the necessary buildings be erected for the purpose, the seat of Government ought to continue at the city of New York, Being under consideration, Mr. LEE withdrew his proposition offered yesterday, and moved to amend the said resolution, by striking out the words "East Bank of the river Susquehanna, in the State of Pennsylvania," and inserting, in lieu thereof; the "North Bank of the river Potomac, in the State of Maryland." And, on the question that the House do agree to the said amendment, the yeas and nays were demanded, and are AYES.--Messrs. Baldwin, Bland, Brown, Burke, Carroll, Coles, Contee, Gale, Griffin, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Smith, (of South Carolina,) Stone, Sumter, Tucker and Vining--21. NAYS.--Messrs. Benson, Boudinot, Cadwalader, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Grout, Hartley, Hathorn, Lawrence, Livermore, P. Muhlenberg, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Sinnickson, Smith, (of Maryland,) Thatcher, Trumbull, Wadsworth and Wynkoop--29. So it was determined in the negative. Mr. VINING said, it now became his duty, after having sacrificed a prejudice, if he had one, by giving his vote for the Potomac, to bring before the House the humble claim of Delaware. He apprehended that her claim to centrality, as it respected wealth and population, was superior to that of the Susquehanna; and that, if a sea-coast line was to be a criterion, she was near the centre of territory. He supposed that this was the line upon which the Committee was to decide for the present. It was not supposed necessary, at this time, to take into consideration the vacant and extensive Western Territory, or why refuse the Potomac, which offered itself under the greatest advantages of an easy intercourse with that quarter? Add to the reasons he had mentioned, that the United States would consult their interest by fixing on the Delaware, as they would not incur the heavy expense of purchasing territory, and erecting magnificent palaces and hotels for the Government, and he thought gentlemen would not hesitate to agree with him. The place he meant to offer was possessed of eminent superiority, as to salubrity of air and fertility of soil; it also united the advantages of the Atlantic and inland navigation; inasmuch as, by cutting a canal from the waters of the Chesapeake to the Delaware, a communication would be opened from Carolina, Virginia, and Maryland, to New Jersey, Pennsylvania and the midland counties of New York. The spot that he proposed for their acceptance was Wilmington in the State of Delaware; round which they might have a district for exclusive legislation, if it was thought proper to accept it. Under these impressions, he would frame his motions in such a way, as to enable Congress, when they did adjourn, to adjourn to meet at that borough. It was made in this form: To strike out the word "permanent," and all the remainder of the clause, after the words "ought to be at," and to insert in lieu of the last "the borough of Wilmington, in the State of Delaware." On the question that the House do agree to the said amendment, the yeas and nays were demanded, and are AYES.--Messrs. Baldwin, Bland, Boudinot, Burke, Cadwalader, Coles, Contee, Griffin, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Sinnickson, Smith, (of South Carolina,) Sumter, and Vining--19. NAYS.--Messrs. Ames, Benson, Brown, Carroll, Clymer, Fitzsimons, Floyd, Foster, Gale, Gerry, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Lawrence, Livermore, P. Muhlenberg, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Smith, (of Maryland,) Stone, Thatcher, Trumbull, Tucker, Wadsworth and Wynkoop--32. Mr. BOUDINOT remarked that the peculiar situation in which he had been placed, by having the chair of the Committee, prevented him from giving his sentiments on the subject then; he therefore hoped to be indulged with stating the claim of the Delaware to the honor of the Federal City. When a question of such great magnitude, and which involved the interests of the Union, was to be decided, he thought he could be neither doing justice to the United States at large, nor his immediate constituents, were he to neglect to call their attention to what the former Congress had done in favor of the Delaware. He was surprised that gentlemen, who contended for the accommodation of their constituents, should be led so far astray from pursuing that object, as to pass far beyond the centre of wealth and population, as well as territory; or, if they did not pass the centre of territory, they went to a place, maugre all that had been said, devoid of those advantages which ought to attend the Federal residence. The want of communication with the Atlantic, the difficulty of navigating its waters, from the innumerable rocks, falls and shoals with which it abounds, which, from actual observation, he was induced to believe were insuperable obstructions to a connection with the Western waters, or, if they could be surmounted, it would be at such cost of money and labor, as the United States were not in a condition to expend, at a time when the widows and orphans were starving for want of the pittance due to them by the Government. The sterility of the soil, and the unhealthiness of a situation on the banks of a river which was subject to rise twenty feet and more, and overflow its banks, leaving behind vast quantities of stagnant water, whence proceeded noxious exhalations, the cause of a long catalogue of diseases, were altogether, in his mind, such objections to the place, that he could never imagine a majority of the House could consent to it. He further observed, that the Government would be secluded from the world, and the channels of information; there were few inhabitants, unless it was in the neighborhood of York or Lancaster. But, beside all these considerations, there was this further, that there was an existing resolution of Congress for erecting the necessary buildings for their accommodation on the banks of the Delaware and Potomac, and an absolute grant of money for the purpose of defraying the expense. Now, as these had each of them strong pretensions, he was willing to have them considered and examined by commissioners sent on the ground. For the sake of accommodation, he would, therefore, move to amend the resolution, by striking out the words "east bank of the river Susquehanna, in the State of Pennsylvania," and inserting in lieu thereof the words "Potomac, Susquehanna, or Delaware." On the question that the House do agree to the said amendment, it passed in the negative; the yeas and nays being required, are as follows: YEAS.--Messrs. Baldwin, Bland, Boudinot, Brown, Burke, Cadwalader, Carroll, Coles, Contee, Griffin, Jackson, Lee, Madison, Matthews, Moore, Parker, Page, Sinnickson, Smith, (of South Carolina,) Stone, Sumter, Tucker and Vining--23. NAYS.--Messrs. Ames, Benson, Clymer, Fitzsimons, Floyd, Foster, Gale, Gerry, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Lawrence, Livermore, P. Muhlenberg, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Smith, (of Maryland,) Thatcher, Trumbull, Wadsworth and Wynkoop--28. Mr. BOUDINOT then moved to amend the resolution by striking out the words "east bank of the river Susquehanna, in the State of Pennsylvania," and inserting in lieu thereof, the words, "banks of either side of the river Delaware, not more than eight miles above or below the lower falls of Delaware." On this question, the yeas and nays were demanded, and are: YEAS.--Messrs. Boudinot, Cadwalader, Gerry and Sinnickson--4. NAYS.--Messrs. Ames, Baldwin, Benson, Bland, Brown, Burke, Carroll, Clymer, Coles, Contee, Fitzsimons, Floyd, Foster, Gale, Gilman, Griffin, Grout, Goodhue, Hartley, Hathorn, Heister, Jackson, Lawrence, Lee, Livermore, Madison, Matthews, Moore, Muhlenberg, Page, Parker, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Smith, (of Maryland,) Smith, (of South Carolina,) Stone, Sumter, Thatcher, Trumbull, Tucker, Wadsworth and Wynkoop--46. Mr. STONE then moved to amend the resolution, by striking out the words "east bank," and inserting in lieu thereof the word "banks;" and on the question, that the House do agree to the said amendment, the yeas and nays being demanded, were as follow: YEAS.--Messrs. Baldwin, Bland, Boudinot, Brown, Burke, Cadwalader, Carroll, Coles, Contee, Gale, Griffin, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Seney, Sinnickson, Smith, (of Maryland,) Smith, (of South Carolina,) Stone, Sumter, Tucker, and Vining--26. NAYS.--Messrs. Ames, Benson, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Lawrence, Livermore, Muhlenberg, Partridge, Van Rensselaer, Scott, Sherman, Sylvester, Thatcher, Trumbull, Wadsworth and Wynkoop--25. So it passed in the affirmative. A motion was then made and seconded, further to amend the said resolution, by inserting, after the word "Pennsylvania," the words "or Maryland," and, on the question the House do agree to the said amendment, it passed in the negative; and the yeas and nays being demanded, were as follow: AYES.--Messrs. Baldwin, Bland, Boudinot, Brown, Burke, Cadwalader, Carroll, Coles, Contee, Gale, Griffin, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Sinnickson, Smith, (of M.) Smith, (of S. C.) Stone, Sumter, Tucker and Vining--25. NAYS.--Messrs. Ames, Benson, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Lawrence, Livermore, P. Muhlenberg, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Thatcher, Trumbull, Wadsworth and Wynkoop--26. Mr. LEE expected the question would be divided on the resolution, as it contained two distinct objects, the permanent and temporary residence. Mr. PAGE suggested the propriety of striking out the latter part of the clause, relating to New York, and to confine the resolution merely to the avowed object, namely, the permanent residence. The question was taken on striking out, and it passed in the negative, 24 for, 27 against it. Mr. VINING then moved to strike out the words "City of New York," and insert, in lieu thereof, "Borough of Wilmington, in the State of Delaware;" and on the question to agree to the said amendment, the yeas and nays being demanded, were as follow: AYES.--Messrs. Baldwin, Bland, Boudinot, Brown, Burke, Cadwalader, Carroll, Coles, Contee, Gale, Griffin, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Sinnickson, Sumter and Vining--21. NAYS.--Messrs. Ames, Benson, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Lawrence, Livermore, Muhlenberg, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Smith, (of Maryland,) Smith, (of South Carolina,) Stone, Thatcher, Trumbull, Tucker, Wadsworth and Wynkoop--30. So it passed in the negative. Mr. PARKER moved to strike out "New York" and insert "Philadelphia." Mr. LEE said the city of New York possessed every convenience and accommodation; he was strongly impressed in favor of the inhabitants, their urbanity and industry did honor to America, and nothing could induce him to vote for striking out the words, but a sense of duty. He flattered himself that a regard would now be paid to the great principles of centrality, which Philadelphia possessed in a great degree; the conveniences and accommodations to be found in that city were equal, if not superior, to what New York presented; her public buildings and institutions were, he believed, at their command; the inhabitants were industrious, temperate, and frugal; in short, every principle which operated in favor of the Susquehanna, as a permanent residence, applied with equal or more force in favor of Philadelphia as the temporary seat of Government. Mr. SHERMAN hoped the House were disposed to make as few removes as possible, and that as the buildings for their accommodation might be in readiness in two or three years at the permanent residence, they would be disposed to continue in New York till that time. On the question, that the House do agree to the said amendment, the yeas and nays being demanded, are as follows: AYES.--Messrs. Baldwin, Boudinot, Brown, Burke, Cadwalader, Carroll, Coles, Contee, Gale, Griffin, Heister, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Sinnickson, Stone, Sumter and Vining--22. NAYS.--Messrs. Ames, Benson, Bland, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Grout, Hartley, Hathorn, Lawrence, Livermore, P. Muhlenberg, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Smith, (of Maryland,) Smith, (of South Carolina,) Thatcher, Trumbull, Tucker, Wadsworth and Wynkoop--29. The main question being put, the second resolution, as amended, was agreed to by the House, in the words following, to wit: "_Resolved_, That the permanent seat of the Government of the United States ought to be at some convenient place on the banks of the river Susquehanna, in the State of Pennsylvania; and that, until the necessary buildings be erected for the purpose, the seat of Government ought to continue in the city of New York." The third resolution, in the words following, to wit: "_Resolved_, That the President of the United States be authorized to appoint three commissioners, to examine and report to him the most eligible situation on the banks of the Susquehanna, in the State of Pennsylvania, for the permanent seat of the Government of the United States; that the said Commissioners be authorized under the direction of the President, to purchase such quantity of land as may be thought necessary, and to erect thereon, within four years, suitable buildings for the accommodation of the Congress, and of the other officers of the United States; that the Secretary of the Treasury, together with the Commissioners so to be appointed, be authorized to borrow a sum, not exceeding one hundred thousand dollars, to be repaid within twenty years, with interest, not exceeding the rate of five per cent. per annum, out of the duties on impost and tonnage, to be applied to the purchase of the land, and the erection of buildings aforesaid; and that a bill ought to pass, in the present session, in conformity with the foregoing resolutions." A motion was made by Mr. GALE, to amend the same, by inserting after the word "aforesaid" the following proviso, viz: "Provided, nevertheless, that, previous to any such purchase, or erection of buildings as aforesaid, the Legislatures of the States of Pennsylvania and Maryland make such provision for removing all obstructions to the navigation of the said river, between the seat of the Federal Government and the mouth thereof, as may be satisfactory to the President of the United States." The ayes and nays being demanded, it passed in the negative. AYES.--Messrs. Baldwin, Boudinot, Brown, Burke, Cadwalader, Carroll, Coles, Contee, Gale, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Seney, Sinnickson, Smith, (of Maryland,) Smith, (of South Carolina,) Stone, Sumter, Tucker and Vining--24. NAYS.--Messrs. Ames, Benson, Clymer, Fitzsimons, Floyd, Foster, Gale, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Lawrence, Livermore, Muhlenberg, Partridge, Van Rensselaer, Scott, Sherman, Sylvester, Thatcher, Trumbull, Wadsworth and Wynkoop--25. And then the main question being put, Do the House agree to the said third resolution, as reported by the Committee of the whole House? The ayes and nays being demanded, it passed in the affirmative. AYES.--Messrs. Ames, Benson, Clymer, Fitzsimons, Floyd, Foster, Gale, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Lawrence, Livermore, Muhlenberg, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Smith, (of Maryland,) Stone, Thatcher, Trumbull, Wadsworth and Wynkoop--28. NAYS.--Messrs. Baldwin, Boudinot, Brown, Burke, Cadwalader, Carroll, Coles, Contee, Gerry, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Sinnickson, Smith, (of South Carolina,) Sumter, Tucker and Vining--21. _Ordered_, That a bill or bills be brought in, pursuant to the foregoing resolutions, and that Messrs. AMES, LAWRENCE, and CLYMER, do prepare and bring in the same. MONDAY, September 21. _Seat of Government._ The House proceeded to consider the bill to establish the seat of Government of the United States, which lay on the table, with the amendments, as reported by the Committee of the whole House. Mr. SMITH proposed to confine the choice of a situation on the banks of the Susquehanna, between Checkiselungo creek and the mouth of the river. He was seconded by Mr. SENEY. Mr. HARTLEY hoped the committee would limit it as near the spot contemplated as possible. Mr. HEISTER said, he moved, the other day, for a particular spot on the river, which he conceived entitled to a preference; if the proposed motion obtained, that place would be excluded, and he should hesitate respecting his vote upon the bill. Mr. SENEY by no means wished to embarrass the committee; if the motion proposed would, any how, have that effect, he should withdraw his second. Mr. MADISON felt himself compelled to move for striking out that part of the bill which provided that the temporary residence of Congress should continue at New York; as he conceived it irreconcilable with the spirit of the constitution. If it was not from viewing it in this light, he should have given the bill no further opposition; and now he did not mean to enter on the merits of the main question. From the constitution, it appeared that the concurrence of the two Houses of Congress was sufficient to enable them to adjourn from one place to another; nay, the legal consent of the President was, in some degree, prescribed in the 7th section of article 1st, where it is declared, that every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment,) shall be presented to the President of the United States, and approved by him, before the same shall take effect. Any attempt, therefore, to adjourn by law, is a violation of that part of the constitution which gives the power, exclusively, to the two branches of the Legislature. If gentlemen saw it in the same light, he flattered himself they would reject that part of the bill; and, however little they valued the reflection that this city was not central, which had been so often urged, they would be guided by arguments springing from a superior source. He would proceed to state the reasons which induced him to be of this opinion; it is declared in the constitution, that neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting; from hence he inferred, that the two Houses, by a concurrence, could adjourn for more than three days, and to any other place which they thought proper; by the other clause he had mentioned, the Executive power is restrained from any interference with the Legislative on this subject; hence, he concluded, it would be dangerous to attempt to give to the President a power which the constitution expressly denied him. TUESDAY, September 22. _Seat of Government._ The engrossed bill to establish the seat of Government of the United States was read a third time; and the question was, Shall this bill pass? Mr. CARROLL said, he felt himself under peculiar circumstances on the decision of this important question. The House had determined that the permanent seat of the Government of the United States should be on the Susquehanna, in Pennsylvania, and not in Maryland on the Potomac. It was his opinion that the last would have been most conducive to the interest of the Union; the voice of the majority of this House is against it. The Susquehanna, said he, being the next object most likely to attain what I have laid down as the rule of my conduct on this occasion, and, at the same time, must be agreeable to the wishes of a great part of my constituents, I felt myself under an obligation to vote for the Susquehanna, upon obtaining the clause which made it obligatory upon the States of Maryland and Pennsylvania to concur in opening the navigation of that river; and nothing would restrain me from giving my assent to the bill, but that clause which requires the concurrence of the President respecting the seat of Government, until Congress meet at their permanent seat. To this clause I have strong constitutional objections; they were yesterday fully stated to this House by other gentlemen. I have endeavored to remove this conviction from my mind, in order to give my assent to the bill; but as I am under the sacred obligation of an oath to support the constitution, as I cannot efface the conviction from my mind that it is contrary to the constitution, and as we could not succeed in striking out the clause, I feel myself under the disagreeable necessity of giving my dissent to the bill. The yeas and nays, on passing the bill, being required by one-fifth of the members present, were as follow: YEAS.--Messrs. Ames, Baldwin, Benson, Clymer, Contee, Fitzsimons, Floyd, Foster, Gale, Gilman, Goodhue, Grout, Hartley, Hathorn, Jackson, Lawrence, Leonard, Livermore, Muhlenberg, Partridge, Van Rensselaer, Scott, Seney, Sherman, Sylvester, Smith, (of Maryland,) Stone, Thatcher, Trumbull, Wadsworth and Wynkoop--31. NAYS.--Messrs. Bland, Boudinot, Burke, Cadwalader, Carroll, Coles, Lee, Madison, Matthews, Moore, Parker, Schureman, Smith, (of South Carolina,) Sumter, Tucker, Vining, and White--17. The bill having passed, was sent to the Senate for their concurrence. SATURDAY, September 26. _Seat of Government._ A message from the Senate was received, informing the House that they had passed the bill for establishing the seat of Government of the United States, with an amendment, which the House immediately took into consideration. The amendment went to strike out all that related to the river Susquehanna, both as to fixing the seat of Government there, and removing the obstructions to the navigation; and to insert, in lieu thereof, "a district of ten miles square, bounded on the south by a line running parallel at one mile's distance from the city of Philadelphia, on the east side of the river of Delaware, and extending northerly and westerly, so as to include Germantown." Mr. BLAND thought the bill was so materially changed as to warrant the House to postpone its consideration. The principles upon which the Senate had proceeded, he believed, had not yet been discussed in the House, and the short time which now remained of the session forbade the attempt. Mr. PAGE seconded this motion. Mr. SMITH (of South Carolina) hoped that gentlemen would agree to let the bill lie on the table, and not to be driven into a measure which they considered injurious to the public interest. He trusted they would not be influenced to adopt this bill, by the Senate's keeping the appropriation bill as a hostage for it, which he understood to be the case. Mr. FITZSIMONS was sorry to hear a thing of that kind insinuated against so respectable a body. He trusted the gentleman had been misinformed; but should be glad to know his authority. Mr. PARTRIDGE declared that a knowledge of this fact would have considerable influence on his conduct; therefore, he was desirous of knowing to what an extent it was a certainty. Mr. BLAND would not charge the Senate with retaining the appropriation bill as a hostage; but he thought it of more importance than the bill they had now sent down, and wished it had been first acted upon. Mr. SPEAKER informed the House that the appropriation bill was sent only yesterday to the Senate. Mr. STONE did not suspect the Senate of the conduct which had been intimated; but, nevertheless, he was in favor of the postponement. Mr. LEE remarked that the great principles which this House had adopted, on full debate, were now thrown out of view; they had nothing to do with the amendment which the Senate had made. He could not, after this circumstance, bring himself to believe that the House would agree to the alteration, without discussing the other principles upon which it must be founded. And here the approaching termination of the session, and the quantity of unfinished business, presented to the mind a strong objection; either it could not be done at all, or done to great disadvantage. Beside, if it is laid over to the next session, the voice of the people may be better understood on this important question; when that was fully and fairly expressed, he flattered himself with a harmonious determination, to which all parties would submit without a single murmur. Mr. SHERMAN thought the amendment of the Senate founded in wisdom, and upon true principles; the House had now nothing else before them. Indeed, they had just been spending an hour or two upon a very uninteresting subject respecting printers; he therefore trusted they would proceed to consider the amendment fully, and come in a proper time to a decision upon it. Mr. WHITE considered the amendment of the Senate as totally changing the tenor of the bill, and therefore it was like introducing a new subject. Indeed, in all the long arguments which the question had drawn out, he believed this place had never been mentioned. The gentleman last up, said there was no business before the House at present: but he would ask, if a business had never yet been before them, whether a member would be permitted to bring it forward at this late hour. He might be told, that the act of the Senate carried greater weight in it than the motion of a member. But he would place against that weight, the weight of the vote of this House, which on a former day agreed to fix the seat of Government on the banks of the Susquehanna; so that the question may be supposed to stand on independent ground. But there was a collateral observation he would make. If Germantown was the proper place for the permanent residence of Congress, it was so near Philadelphia as to prove that that city would be the proper place for the temporary residence, and of course they ought to move there immediately, and order the next session to be held there; but both these questions were of too much moment to be fixed by a hasty vote of the House. Mr. JACKSON had given his assent to the bill as it passed the House, after a fair opposition: he was satisfied his fellow-citizens would submit to what appeared to be the voice of their country; though they would have preferred the Potomac on account of its centrality and contiguity to the Western Territory, yet he acceded to the Susquehanna; but this was no reason he should vote for Germantown. Who are those that say to us, Germantown is the most proper spot that can be selected? They are the representatives of the State sovereignties; where the large and small States are equally represented, the voice of the majority of the people is lost in the inequality of the political branch of the Legislature. He could not but think an alteration in the sentiment of the House, on this ground, would excite serious alarm in the minds of the people; to avoid which consequence, he should agree to the postponement. Mr. GERRY urged, as a reason for postponement, that North Carolina and Rhode Island were out of the Union at present; and that, as there was a flattering expectation that at least one of those States would adopt the constitution by the next session, it would be extremely desirable to have their voice in determining this great question. Mr. MADISON.--However different our sentiments, with respect to the place most proper for the seat of the Federal Government, I presume we shall all agree that a right decision is of great importance; and that a satisfactory decision is of equal moment to the happiness and tranquillity of the Union: that even the manner and circumstances under which such decision may take place, are worthy of serious consideration. Now, sir, the amendment proposed by the Senate, not only deserves the name of a new bill, but it proceeds on principles different from those which served for the basis of the bill sent up to them from this House: hence I presume, sir, it is not only necessary to examine the merits of the proposition, but to enter into a full and minute investigation of those principles upon which it is founded: the proposition is new and in some degree opposed to what has heretofore prevailed: the public mind has not yet been called to the consideration of it; nay, I believe it never yet has been contemplated by the inhabitants of any one State: the eye of America should be indulged with an opportunity of viewing it before it be made their fixed abode. All the other places which have been mentioned as candidates for the seat of Government, on this occasion, have at different times, and in different forms, been held up to the public attention; two of them had not only employed the deliberation, but had obtained the favorable decision of the old Congress; now after all this, to take up and adopt in a moment, a rival place, never before contemplated, is risking an improper and a dissatisfactory decision. Mr. STONE reminded the House of the majority there was in selecting the Susquehanna, which he conceived to be the second best spot in the United States; and how much greater that majority would have been than 31 to 17, if no other question had been involved in the bill: he could hardly suppose such a change of sentiment would take place without argument, as was necessary in order to get the Senate's amendment adopted, which, he understood, was carried by a small majority indeed. Mr. WHITE would just add one observation, which was respecting the enormous price of land in the vicinity of Philadelphia; and how imprudent it would be for Congress to subject themselves to an exorbitant demand of this nature, by fixing upon the precise spot where this Federal town should be. The question was now taken on postponing the consideration of the amendment proposed by the Senate, until the next session; and the yeas and nays being called, are: YEAS.--Messrs. Baldwin, Bland, Brown, Burke, Carroll, Coles, Contee, Gale, Gerry, Griffin, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Schureman, Seney, Smith, (of Maryland,) Smith, (of South Carolina,) Stone, Sumter, Tucker and White--25. NAYS.--Messrs. Ames, Benson, Boudinot, Cadwalader, Clymer, Fitzsimons, Floyd, Foster, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Lawrence, Leonard, Livermore, Muhlenberg, Partridge, Van Rensselaer, Scott, Sherman, Sylvester, Sinnickson, Thatcher, Trumbull, Vining, Wadsworth, and Wynkoop--29. So it was determined in the negative. MONDAY, September 28. _Seat of Government._ Mr. SHERMAN--In our deliberations on this occasion, we should have an eye to the general accommodation of the Union, and the best way of defraying the expense. The place fixed upon by the Senate, he presumed, was known to the members generally; hence they were able to judge of its eligibility at the first view; it certainly possessed some advantages over the other situation; and he believed it was as central, if not more so than the Susquehanna, as it respected the present inhabitants; the air, the soil, in that neighborhood, were quite as agreeable as the other. But there was an access by water, from every part of the United States, which furnished a very great convenience; but beside this, those who came from the Southern States, had generally an inland navigation, with a short distance to come by land from the head of the Elk; so the citizens of the Eastern States, in like manner, would be accommodated by coming through the Sound and crossing to Amboy, on which route they would have but about 70 miles land carriage; a distance nearly equal with the other. He admitted that Germantown was not quite so near to the Western Territory as the Susquehanna was; but he contemplated a very distant day before it would be settled, and much longer before the inhabitants would have frequent occasion of travelling to the seat of Government. Added to the advantages he had mentioned, there were good buildings, and convenience for arsenals and ship-yards, with abundance of artificers on the spot; these considerations, taken together, induced him to think it best to concur with the Senate. Mr. SMITH thought the honorable gentleman rather inconsistent in his argument to-day. If he recollected right, the gentleman had formerly urged in favor of the Susquehanna, that it was not accessible by vessels from sea; and now he recommends this quality as an advantage in favor of the Delaware. The gentleman admits that this position is not quite so near the Western Territory as the one chosen by the House; but then he thinks no inconvenience will arise, inasmuch as it will be some years before it is peopled: but how does this comport with the principle laid down by an almost unanimous vote of the House? At the beginning of this business, we declare that a due regard should be had to the Western Territory; he now tells us, as an argument in favor of the Senate's amendment, that we should have no regard to it at all. He thinks the change made in the manner of obtaining the money favorable; but what advantage will accrue to the United States from Pennsylvania's granting 100,000 dollars, when Congress will have to purchase the land on which they are to sit down? Land in the neighborhood of Philadelphia, he had been told, was worth 40 or 50 pounds an acre. The 100,000 dollars, given by Pennsylvania, would not go far in a purchase at this rate. He thought the Government would have a better bargain in buying cheap lands on the Susquehanna; or perhaps they might have been got there for nothing. He thought this alteration unfavorable to the Public Treasury, which could illy supply such a demand upon it. Mr. MADISON contended that the amendment proposed by the Senate was a departure from every principle adopted by the House; but he would not trouble them with a recapitulation of arguments, which he feared would be unavailing; he wished, however, that the House would provide against one inconvenience, which was, to prevent the district in Pennsylvania, chosen by Congress, from being deprived for a time of the benefit of the laws. This, he apprehended, would be the case, unless Congress made provision for the operation of the laws of Pennsylvania, in the act by which they accepted of the cession of that State; for the State relinquished the right of legislation from the moment that Congress accepted of the district. The propriety of this proposition was so apparent, that he had not a doubt but the House would consent to it. He then moved the following proviso: "And provided, that nothing herein contained shall be construed to affect the operation of the laws of Pennsylvania, within the district ceded and accepted, until Congress shall otherwise provide by law." Mr. LIVERMORE objected to this motion; because he supposed there was no necessity for it. The question was then taken, do the House agree to the amendment? and decided in the affirmative. The yeas and nays being demanded, are as follows: YEAS.--Messrs. Ames, Cadwalader, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Grout, Hartley, Hathorn, Heister, Huntington, Lawrence, Leonard, Livermore, Muhlenberg, Partridge, Van Rensselaer, Schureman, Scott, Sherman, Sylvester, Sinnickson, Thatcher, Trumbull, Vining, Wadsworth and Wynkoop--31. NAYS.--Messrs. Baldwin, Bland, Boudinot, Brown, Burke, Carroll, Coles, Contee, Gale, Griffin, Jackson, Lee, Madison, Matthews, Moore, Page, Parker, Seney, Smith, (of Maryland,) Smith, (of South Carolina,) Stone, Sumter, Tucker, and White--24. And here the bill was dropped for the session. TUESDAY, September 29. The two following messages were received from the President: UNITED STATES, Sept. 29, 1789. _Gentlemen of the House of Representatives:_ His Most Christian Majesty, by a letter dated the 7th of June last, addressed to the President and members of the General Congress, of the United States of North America, announces the much lamented death of his son the Dauphin. The generous conduct of the French monarch and nation towards this country renders every event that may affect his or their prosperity interesting to us; and I shall take care to assure him of the sensibility with which the United States participate in the affliction which a loss so much to be regretted must have occasioned both to him and them. GEO. WASHINGTON. UNITED STATES, Sept. 29, 1789. _Gentlemen of the House of Representatives:_ Having yesterday been informed, by a joint committee of both Houses of Congress, that they had agreed to a recess, to commence this day, and to continue until the first Monday in January next, I take the earliest opportunity of acquainting you that, considering how long and laborious this session has been, and the reasons which, I presume, have produced this resolution, it does not appear to me expedient to recommend any measures to their consideration at present. GEO. WASHINGTON. On motion of Mr. GERRY, it was ordered, that it shall be the duty of the Secretary of the Senate and Clerk of the House, at the end of each session, to send a printed copy of the Journals thereof, respectively, to the Supreme Executive, and each branch of the Legislature, of every State. And then it was ordered that a message be sent to the Senate, to inform them that this House having completed the business before them, are now about to proceed to close the present session, by an adjournment on their part, agreeably to the order of the 26th instant; and that the Clerk of this House do go with the said message. The Clerk accordingly went with the said message, and being returned, The Speaker adjourned the House until the first Monday in January next. FIRST CONGRESS.--SECOND SESSION. BEGUN AT THE CITY OF NEW YORK, JANUARY 4, 1790. PROCEEDINGS IN THE SENATE. MONDAY, January 4, 1790. The following members of the Senate assembled: From New Hampshire, JOHN LANGDON and PAINE WINGATE. From Massachusetts, CALEB STRONG and TRISTRAM DALTON. From Connecticut, WILLIAM S. JOHNSON. From New York, RUFUS KING and PHILIP SCHUYLER. From South Carolina, RALPH IZARD and PIERCE BUTLER. From Georgia, WILLIAM FEW. A quorum of members not being present, they adjourned till to-morrow. TUESDAY, January 5. JOHN HENRY, from Maryland, in addition to the members assembled yesterday, attended; but not being a quorum, they adjourned. WEDNESDAY, January 6. WILLIAM MACLAY, from Pennsylvania, attended; a quorum of the members of the Senate were present, and the Secretary was directed to inform the House of Representatives that a quorum of the Senate have assembled, and are ready to proceed to business. _Ordered_, That Messrs. STRONG and IZARD be a committee on the part of the Senate, with such committee as the House of Representatives may appoint on their part, to inform the President of the United States that a quorum of the two Houses is assembled, and will be ready in the Senate Chamber, at such time as the President may appoint, to receive any communications he may be pleased to make. THURSDAY, January 7. OLIVER ELLSWORTH, of Connecticut, and WILLIAM PATERSON, from New Jersey, attended. A message from the House of Representatives informed the Senate that they have resolved that two Chaplains, of different denominations, be appointed to Congress for the present session, one by each House, who shall interchange weekly. Mr. STRONG, on behalf of the joint committee, reported to the Senate, that they had waited on the President of the United States, agreeably to the order of both Houses, and that he informed the committee that he would meet the two Houses in the Senate Chamber to-morrow at 11 o'clock. FRIDAY, January 8. _Ordered_, That the House of Representatives be informed that the Senate are ready to meet them in the Senate Chamber, to receive any communication the President of the United States may be pleased to make to the two Houses of Congress; and that the usual seats will be assigned them. The House of Representatives having accordingly taken their seats, the President of the United States came into the Senate Chamber, and addressed both Houses of Congress as followeth: _Fellow-Citizens of the Senate, and House of Representatives:_ I embrace with great satisfaction the opportunity which now presents itself of congratulating you on the present favorable prospects of our public affairs. The recent accession of the important State of North Carolina to the constitution of the United States, (of which official information has been received;) the rising credit and respectability of our country; the general and increasing good-will towards the Government of the Union; and the concord, peace, and plenty with which we are blessed, are circumstances auspicious in an eminent degree to our national prosperity. In resuming your consultations for the general good, you cannot but derive encouragement from the reflection that the measures of the last session have been as satisfactory to your constituents, as the novelty and difficulty of the work allowed you to hope. Still further to realize their expectations, and to secure the blessings which a gracious Providence has placed within our reach, will, in the course of the present important session, call for the cool and deliberate exertion of your patriotism, firmness, and wisdom. Among the many interesting objects which will engage your attention, that of providing for the common defence will merit particular regard. To be prepared for war, is one of the most effectual means of preserving peace. A free people ought not only to be armed, but disciplined; to which end, a uniform and well-digested plan is requisite: and their safety and interest require that they should promote such manufactures as tend to render them independent of others for essential, particularly military supplies. The proper establishment of the troops which may be deemed indispensable will be entitled to mature consideration. In the arrangements which may be made respecting it, it will be of importance to conciliate the comfortable support of the officers and soldiers with a due regard to economy. There was reason to hope that the pacific measures adopted with regard to certain hostile tribes of Indians, would have relieved the inhabitants of our Southern and Western frontiers from their depredations; but you will perceive, from the information contained in the papers which I shall direct to be laid before you, (comprehending a communication from the commonwealth of Virginia,) that we ought to be prepared to afford protection to those parts of the Union, and, if necessary, to punish aggressors. The interests of the United States require that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty, in that respect, in the manner which circumstances may render most conducive to the public good; and to this end, that the compensations to be made to the persons who may be employed, should, according to the nature of their appointments, be defined by the law; and a competent fund designated for defraying the expenses incident to the conduct of our foreign affairs. Various considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens, should be speedily ascertained by a uniform rule of naturalization. Uniformity in the currency, weights and measures, of the United States, is an object of great importance, and will, I am persuaded, be duly attended to. The advancement of agriculture, commerce, and manufactures, by all proper means, will not, I trust, need recommendation; but I cannot forbear intimating to you the expediency of giving effectual encouragement, as well to the introduction of new and useful inventions from abroad, as to the exertions of skill and genius in producing them at home; and of facilitating the intercourse between the distant parts of our country by a due attention to the Post-Office and post-roads. Nor am I less persuaded that you will agree with me in opinion, that there is nothing which can better deserve your patronage than the promotion of science and literature. Knowledge is in every country the surest basis of public happiness. In one in which the measures of Government receive their impression so immediately from the sense of the community as in ours, it is proportionably essential. To the security of a free constitution it contributes in various ways. By convincing those who are intrusted with the public administration, that every valuable end of Government is best answered by the enlightened confidence of the people, and by teaching the people themselves to know and to value their own rights to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burthens proceeding from a disregard to their convenience, and those resulting from the inevitable exigencies of society; to discriminate the spirit of liberty from that of licentiousness, cherishing the first, avoiding the last, and uniting a speedy but temperate vigilance against encroachments, with an inviolable respect to the laws. Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients, will be well worthy of a place in the deliberations of the Legislature. _Gentlemen of the House of Representatives:_ I saw with peculiar pleasure, at the close of the last session, the resolution entered into by you, expressive of your opinion that an adequate provision for the support of the public credit is a matter of high importance to the national honor and prosperity. In this sentiment I entirely concur. And, to a perfect confidence in your best endeavors to devise such a provision as will be truly consistent with the end, I add an equal reliance on the cheerful co-operation of the other branch of the Legislature. It would be superfluous to specify inducements to a measure in which the character and permanent interests of the United States are so obviously and so deeply concerned, and which has received so explicit a sanction from your declaration. _Gentlemen of the Senate and House of Representatives:_ I have directed the proper officers to lay before you, respectively, such papers and estimates as regard the affairs particularly recommended to your consideration, and necessary to convey to you that information of the state of the Union, which it is my duty to afford. The welfare of our country is the great object to which our cares and efforts ought to be directed. And I shall derive great satisfaction from a co-operation with you, in the pleasing though arduous task of insuring to our fellow-citizens the blessings which they have a right to expect from a free, efficient and equal Government. GEO. WASHINGTON. UNITED STATES, January 8, 1790. The President of the United States having retired, and the two Houses being separated: _Ordered_, That Messrs. KING, IZARD, and PATERSON, be a committee to prepare and report the draft of an address to the President of the United States, in answer to his speech delivered this day to both Houses of Congress, in the Senate Chamber. _Ordered_, That the speech of the President of the United States, delivered this day, be printed for the use of the Senate. The Senate adjourned to Monday next. MONDAY, January 11. Mr. KING, on behalf of the committee, reported an address to the President of the United States, in answer to his speech to both Houses of Congress, which being amended, was adopted as followeth: _To the President of the United States._ SIR:--We, the Senate of the United States, return you our thanks for your speech delivered to both Houses of Congress. The accession of the State of North Carolina to the Constitution of the United States gives us much pleasure: and we offer you our congratulations on that event, which at the same time adds strength to our Union, and affords a proof that the more the constitution has been considered, the more the goodness of it has appeared. The information which we have received, that the measures of the last session have been as satisfactory to our constituents as we had reason to expect, from the difficulty of the work in which we were engaged, will afford us much consolation and encouragement in resuming our deliberations, in the present session, for the public good; and every exertion on our part shall be made to realize and secure to our country those blessings which a gracious Providence has placed within our reach. We are persuaded that one of the most effectual means of preserving peace is to be prepared for war; and our attention shall be directed to the objects of common defence, and to the adoption of such plans as shall appear the most likely to prevent our dependence on other countries for essential supplies. In the arrangements to be made respecting the establishment of such troops as may be deemed indispensable, we shall, with pleasure, provide for the comfortable support of the officers and soldiers, with a due regard to economy. We regret that the pacific measures adopted by Government, with regard to certain hostile tribes of Indians, have not been attended with the beneficial effects towards the inhabitants of our Southern and Western frontiers which we had reason to hope, and we shall cheerfully co-operate in providing the most effectual means for their protection, and, if necessary, for the punishment of aggressors. The uniformity of the currency, and of weights and measures; the introduction of new and useful inventions from abroad, and the exertions of skill and genius in producing them at home; the facilitating the communication between the distant parts of our country, by means of the Post-Office and post-roads; a provision for the support of the Department of Foreign Affairs, and a uniform rule of naturalization, by which foreigners may be admitted to the rights of citizens, are objects which shall receive such early attention as their respective importance requires. Literature and Science are essential to the preservation of a free constitution: the measures of Government should, therefore, be calculated to strengthen the confidence that is due to that important truth. Agriculture, Commerce, and Manufactures, forming the basis of the wealth and strength of our confederated Republic, must be the frequent subject of our deliberation, and shall be advanced by all proper means in our power. Public Credit being an object of great importance, we shall cheerfully co-operate in all proper measures for its support. Proper attention shall be given to such papers and estimates as you may be pleased to lay before us. Our cares and efforts shall be directed to the welfare of our country; and we have the most perfect dependence upon your co-operating with us, on all occasions, in such measures as will insure to our fellow-citizens the blessings which they have a right to expect from a free, efficient, and equal Government. TUESDAY, January 12. _Ordered_, That the Address to the President of the United States, in answer to his speech, be presented by the Vice President, attended by the Senate, and that the committee which reported the address wait on the President, and desire to be informed at what time and place he will receive the same. Mr. KING, in behalf of the committee, reported that it would be agreeable to the President to receive the address of the Senate, in answer to his speech, on Thursday next, at 11 o'clock, at his own house. WEDNESDAY, January 13. JONATHAN ELMER, from New Jersey, attended. BENJAMIN HAWKINS, from North Carolina, appeared, produced his credentials, and took his seat. The Vice President administered the oath to Mr. HAWKINS. THURSDAY, January 14. Agreeably to the order of the 12th instant, the Senate waited on the President of the United States, at his own house, where the Vice President, in their name, delivered to the President of the United States the address agreed to on the 11th instant: To which the President of the United States was pleased to make the following reply: _Gentlemen:_ I thank you for your address, and for the assurances which it contains of attention to the several matters suggested by me to your consideration. Relying on the continuance of your exertions for the public good, I anticipate for our country the salutary effects of upright and prudent counsels. G. WASHINGTON. The Senate having returned to the Senate Chamber, adjourned. FRIDAY, January 15. _Ordered_, That Messrs. ELLSWORTH, HAWKINS, and PATERSON, be a committee to bring in a bill, in addition to "An act to establish the Judicial Courts of the United States." WEDNESDAY, January 20. On motion, _Resolved_, That Messrs. ELLSWORTH, MACLAY, and HENRY, be a committee to confer with such committee as may be appointed on the part of the House of Representatives, to consider and report whether or not the business began previous to the late adjournment of Congress, shall now be proceeded in as if no adjournment had taken place. _Ordered_, That a message be sent to the House of Representatives, acquainting them herewith, and requesting the appointment of a similar committee on their part. THURSDAY, January 21. ROBERT MORRIS from Pennsylvania, attended. A message from the House of Representatives informed the Senate that they had agreed to the appointment of a committee on their part, consisting of Messrs. SHERMAN, THATCHER, HARTLEY, WHITE, and JACKSON, to confer with the committee appointed on the part of the Senate, to consider and report whether or not the business begun previous to the late adjournment of Congress, shall now be proceeded in as if no adjournment had taken place. FRIDAY, January 22. Mr. ELLSWORTH, on behalf of the "joint committee of the two Houses, appointed to consider and report whether or not the business begun previous to the late adjournment of Congress, shall now be proceeded in as if no adjournment had taken place," reported. _Ordered_, That the consideration of the report be deferred until Monday next. MONDAY, January 25. The Senate proceeded to consider the report of the joint committee of the Senate and House of Representatives, appointed the 20th instant, to wit: "that the business unfinished between the two Houses at the late adjournment ought to be regarded as if it had not been passed upon by either;" And, on motion that the report of the committee be postponed, it passed in the negative. And, upon the question to agree to the report of the committee, the yeas and nays being required by one-fifth of the Senators present: _Yeas._--Messrs. Butler, Dalton, Ellsworth, Few, Hawkins, Henry, Johnson, King, Schuyler, and Strong--10. _Nays._--Messrs. Bassett, Elmer, Izard, Langdon, Maclay, Morris, Paterson, and Wingate--8. And so it passed in the affirmative. And it was _Resolved_, That the business unfinished between the two Houses at the late adjournment ought to be regarded as if it had not been passed upon by either. TUESDAY, January 26. A message from the House of Representatives announced their agreement with the Senate in their resolution, that the business unfinished between the two Houses, at the late adjournment, ought to be regarded as if it had not been passed upon by either. THURSDAY, January 28. On motion it was _Ordered_, That the letter from the Governor of Rhode Island of the 18th of January instant, to the President of the United States, requesting a further suspension of the acts of Congress subjecting the citizens of the State of Rhode Island to the payment of foreign tonnage and foreign duties, during the pleasure of Congress, and communicated with the President's message this day, be referred to the same committee. FRIDAY, January 29. SAMUEL JOHNSTON, from North Carolina, appeared, produced his credentials, and took his seat in the Senate. The Vice President administered the oath to Mr. JOHNSTON. TUESDAY, May 11. The Senate proceeded to consider the report of the committee appointed the 28th of April, to consider what provisions will be proper for Congress to make, in the present session, respecting the State of Rhode Island; whereupon, _Resolved_, That all commercial intercourse between the United States and the State of Rhode Island, from and after the first day of July next, be prohibited, under suitable penalties; and that the President of the United States be authorized to demand of the State of Rhode Island ---- dollars, to be paid into the Treasury of the United States by the ---- day of ---- next; which shall be credited to the said State, in account with the United States; and that a bill or bills be brought in for those purposes. _Ordered_, That the committee who brought in the above report prepare and report a bill accordingly. THURSDAY, May 13. Mr. ELLSWORTH, reported, from the committee appointed May 3d, to consider and report their opinion on the question, when according to the constitution, the terms for which the President, Vice President, Senators, and Representatives, have been respectively chosen, shall be deemed to have commenced; and, also, to consider of, and report their opinion on such other matters as they shall conceive have relation to this question. _Ordered_, That this report lie for consideration. FRIDAY, May 14. The Senate proceeded to consider the report of the joint committee, appointed the 28th of April, which is as follows: The committee of the Senate, to join with a committee appointed by the House of Representatives, to consider and report their opinion on the question, when, according to the Constitution, the terms for which the President, Vice President, Senators, and Representatives, have been respectively chosen, shall be deemed to have commenced; and, also, to consider of, and report their opinion on, such other matters as they should conceive to have relation to this question, report, as the opinion of the said joint committee: That the terms for which the President, Vice President, Senators, and Representatives, of the United States, were respectively chosen, did, according to the constitution, commence on the 4th day of March, 1789; and so the Senators of the first class, and the Representatives, will not, according to the constitution, be entitled, by virtue of the same election by which they hold seats in the present Congress, to seats in the next Congress, which will be assembled after the 3d day of March, 1791; and further, that, whenever a vacancy shall happen in the Senate or House of Representatives, and an election to fill such vacancy, the person elected will not, according to the constitution, be entitled, by virtue of such election, to hold a seat beyond the time for which the Senator or Representative in whose stead such person shall have been so elected, would, if the vacancy had not happened, have been entitled to hold a seat. That it will be advisable for the Congress to pass a law or laws for determining, agreeable to the provision in the first section of the second article of the constitution, the time when the electors shall, in the year which will terminate on the 3d day of March, 1793, and so in every fourth year thereafter, be chosen, and the day on which they shall give their votes; for declaring what officer shall, in case of vacancy, both in the office of President and Vice President, act as President; for assigning a public office where the lists, mentioned in the second paragraph of the first section in the second article of the constitution, shall in case of vacancy in the office of President of the Senate, or his absence from the seat of Government, be, in the mean time, deposited; and for directing the mode in which such lists shall be transmitted: whereupon, _Resolved_, That the Senate do agree to this report. MONDAY, May 17. The Senate proceeded to the third reading of the bill to prevent bringing goods, wares, and merchandises from the State of Rhode Island and Providence Plantations into the United States, and to authorize a demand of money from the said State, and, On motion, _Ordered_, That this bill be recommitted. TUESDAY, May 18. Mr. CARROLL, from the committee appointed April the 28th, to consider what provisions will be proper for Congress to make, in the present session, respecting the State of Rhode Island, and to whom it was referred, to bring in a bill on that subject, reported several additional clauses to the bill to prevent bringing goods, wares, and merchandises, from the State of Rhode Island and Providence Plantations into the United States, and to authorize a demand of money from the said State; which report was agreed to as amendments to the bill. The Senate proceeded to the third reading of the bill to prevent bringing goods, wares, and merchandises, from the State of Rhode Island and Providence Plantations into the United States, and to authorize a demand of money from the said State; And, on the question, "Shall this bill pass?" the yeas and nays being required by one-fifth of the Senators present, were: YEAS.--Messrs. Bassett, Carroll, Dalton, Ellsworth, Johnson, Johnston, Izard, King, Langdon, Morris, Reed, Schuyler, and Strong--13. NAYS.--Messrs. Butler, Elmer, Hawkins, Henry, Lee, Maclay, Walker, and Wingate--8. So it was _Resolved_, That this bill do pass, and that it be carried to the House of Representatives for concurrence therein. TUESDAY, June 1. The following message was received from the President of the United States, and was read: _Gentlemen of the Senate, and House of Representatives:_ Having received official information of the accession of the State of Rhode Island and Providence Plantations to the constitution of the United States, I take the earliest opportunity of communicating the same to you, with my congratulations on this happy event, which unites, under the General Government, all the States which were originally confederated; and have directed my Secretary to lay before you a copy of the letter from the President of the Convention of the State of Rhode Island to the President of the United States. G. WASHINGTON. UNITED STATES, June 1, 1790. The Senate then entered on Executive business. The following message from the President of the United States, by his Secretary, was read: UNITED STATES, May 31, 1790. _Gentlemen of the Senate:_ Mr. De Poiery served in the American army for several of the last years of the late war, as Secretary to Major General the Marquis de Lafayette, and might probably at the same time have obtained the commission of Captain from Congress, upon application to that body. At present, he is an officer in the French National Guards, and solicits a Brevet Commission from the United States of America. I am authorized to add, that while the compliance will involve no expense on our part, it will be particularly grateful to that friend of America, the Marquis de Lafayette. I therefore nominate M. De Poiery to be a Captain by Brevet. GEORGE WASHINGTON. _Ordered_, That the message lie for consideration. WEDNESDAY, June 2. _Resolved_, That the Senate will attend the funeral of Colonel Bland, late a member of the House of Representatives of the United States, at five o'clock this afternoon.[30] The Senate then entered on Executive business, and consented to the nomination of M. De Poiery to be a Captain by Brevet, in the service of the United States. WEDNESDAY, August 4. The Senate then entered on Executive business, and the following message from the President of the United States was read:[31] UNITED STATES, August 4th, 1790. _Gentlemen of the Senate:_ In consequence of the general principles agreed to by the Senate in August, 1789, the adjustment of the terms of a treaty is far advanced between the United States and the Chiefs of the Creek Indians now in this city, in behalf of themselves and the whole Creek Nation. In preparing the articles of this treaty, the present arrangements of the trade with the Creeks have caused much embarrassment. It seems to be well ascertained, that the trade is almost exclusively in the hands of a company of British merchants, who by agreement, make their importations of goods from England into the Spanish ports. As the trade of the Indians is a main means of their political management, it is therefore obvious, that the United States cannot possess any security for the performance of treaties with the Creeks, while their trade is liable to be interrupted, or withheld, at the caprice of two foreign powers. Hence it becomes an object of real importance to form new channels for the commerce of the Creeks through the United States. But this operation will require time, as the present arrangements cannot be suddenly broken without the greatest violation of faith and morals. It therefore appears to be important to form a secret article of a treaty, similar to the one which accompanies this message. If the Senate should require any further explanation, the Secretary of War will attend them for that purpose. GEO. WASHINGTON. The President of the United States puts the following question for the consideration and advice of the Senate: If it should be found essential to a treaty for the firm establishment of peace with the Creek nation of Indians, that an article to the following effect should be inserted therein, will such an article be proper? viz: SECRET ARTICLE. The commerce necessary for the Creek nation shall be carried on through the ports, and by the citizens of the United States, if substantial and effectual arrangements shall be made for that purpose by the United States, on or before the 1st day of August, one thousand seven hundred and ninety-two. In the mean time, the said commerce may be carried on through its present channels, and according to its present regulations. And whereas, the trade of the said Creek nation is now carried wholly, or principally, through the territories of Spain, and obstructions thereto, may happen by war or prohibitions of the Spanish Government: it is therefore agreed between the said parties, that in the event of such obstructions happening, it shall be lawful for such persons as ---- ---- shall designate, to introduce into, and transport through the territories of the United States to the country of the said Creek nation, any quantity of goods, wares, and merchandise, not exceeding in value, in any one year, sixty thousand dollars, and that free from any duties or impositions whatsoever, but subject to such regulations for guarding against abuse, as the United States shall judge necessary; which privilege shall continue as long as such obstruction shall continue. GEO. WASHINGTON. UNITED STATES, August 4th, 1790. The Senate proceeded to consider the message from the President of the United States of this day; whereupon, _Resolved_, That the Senate do advise and consent to the execution of the secret article referred to in the message, and that the blank in said article be filled with the words "President of the United States." WEDNESDAY, August 11. The Senate then entered on Executive business; and the following message was received and read, from the President of the United States: UNITED STATES, August 11, 1790. _Gentlemen of the Senate:_ Although the treaty with the Creeks may be regarded as the main foundation of the future peace and prosperity of the south-western frontier of the United States, yet, in order fully to effect so desirable an object, the treaties which have been entered into with the other tribes in that quarter must be faithfully performed on our part. During the last year, I laid before the Senate a particular statement of the case of the Cherokees. By a reference to that paper it will appear, that the United States formed a treaty with the Cherokees in November, 1785; that the said Cherokees thereby placed themselves under the protection of the United States, and had a boundary assigned them; that the white people settled on the frontiers had openly violated the said boundary, by intruding on the Indian lands; that the United States, in Congress assembled, did on the first day of September, 1788, issue their proclamation, forbidding all such unwarrantable intrusions, and enjoined all those who had settled upon the hunting grounds of the Cherokees to depart with their families and effects, without loss of time, as they would answer their disobedience to the injunctions and prohibitions expressed, at their peril. But information has been received that, notwithstanding the said treaty and proclamation, upwards of five hundred families have settled on the Cherokee lands, exclusively of those settled between the fork of French Broad and Holstein Rivers, mentioned in the said treaty. As the obstructions to a proper conduct on this matter have been removed since it was mentioned to the Senate, on the 22d of August, 1789, by the accession of North Carolina to the present Union, and the cessions of the land in question, I shall conceive myself bound to exert the powers intrusted to me by the constitution, in order to carry into faithful execution the treaty of Hopewell, unless it shall be thought proper to attempt to arrange a new boundary with the Cherokees, embracing the settlements, and compensating the Cherokees for the cessions they shall make on the occasion. On this point, therefore, I state the following questions, and request the advice of the Senate thereon: 1st. Is it the judgment of the Senate that overtures shall be made to the Cherokees to arrange a new boundary, so as to embrace the settlements made by the white people since the treaty of Hopewell, in November, 1785? 2d. If so, shall compensation, to the amount of ---- dollars annually, or of ---- dollars in gross, be made to the Cherokees for the land they shall relinquish, holding the occupiers of the land accountable to the United States for its value? 3d. Shall the United States stipulate solemnly to guarantee the new boundary which may be arranged? GEO. WASHINGTON. Agreed, by unanimous consent, to proceed to the consideration of this message. Whereupon, _Resolved_, That the Senate do advise and consent that the President of the United States do, at his discretion, cause the treaty concluded at Hopewell with the Cherokee Indians, to be carried into execution, according to the terms thereof, or to enter into arrangements for such further cessions of territory, from the said Cherokee Indians, as the tranquillity and interest of the United States may require; provided the sum which may be stipulated to be paid to the Cherokee Indians do not exceed one thousand dollars annually; and provided, further, that no person who shall have taken possession of any lands within territory assigned to the said Cherokee Indians, by the said treaty of Hopewell, shall be confirmed in any such possessions, but by a compliance with such terms as Congress may hereafter prescribe. _Resolved_, In case a new, or other boundary than that stipulated by the treaty of Hopewell, shall be concluded with the Cherokee Indians, that the Senate do advise and consent solemnly to guarantee the same. THURSDAY, August 12. A message from the House of Representatives informed the Senate, that the House of Representatives having finished the business before them are about to adjourn, agreeably to the vote of the two Houses of Congress on Tuesday night. On motion, _Resolved, unanimously_, That the thanks of the Senate be given to the corporation of the city of New York for the elegant and convenient accommodations provided for Congress, and that a copy of this resolve be enclosed in the following letter from the Vice President: NEW YORK, August 12, 1790. SIR: It is with great pleasure, that, in obedience to an order of the Senate of the United States, I have the honor to enclose their resolution of this date, which was unanimously agreed to; and, in behalf of the Senate, I request that you will be pleased to communicate the same to the corporation of the city, and, at the same time, signify to them, that it is the wish of the Senate that the corporation will permit such articles of furniture, &c. now in the City Hall, as have been provided by Congress, to remain for the use of that building. I am, sir, your most obedient humble servant, JOHN ADAMS, _Vice President of the United States, and President of the Senate._ To the Mayor of the city of New York. The Senate then entered on Executive business, and proceeded to consider the message from the President of the United States, of the 7th of August, 1790, communicating a treaty entered into with the Chiefs of the Creek nation of Indians. And, on the question to advise and consent to the ratification of the said treaty, made with the Creek nation, and referred to in the message of the President of the United States, of the 7th of August, 1790; the yeas and nays were required by one-fifth of the Senators present, and were: YEAS.--Messrs. Carroll, Dalton, Ellsworth, Foster, Hawkins, Henry, Johnson, Johnston, Izard, King, Lee, Paterson, Read, Schuyler, and Stanton--15. NAYS.--Messrs. Butler, Few, Gunn, and Walker--4. The Senate resuming their Legislative character, _Ordered_, That the Secretary acquaint the House of Representatives that the Senate having finished the Legislative business before them, are about to adjourn, agreeably to the vote of both Houses of Congress of the 10th instant. And the Vice President adjourned the Senate accordingly, to meet on the first Monday in December next. FIRST CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, January 4. The following is a list of the Members composing the House of Representatives: New Hampshire--NICHOLAS GILMAN, SAMUEL LIVERMORE, and ABIEL FOSTER. Massachusetts--FISHER AMES, ELBRIDGE GERRY, BENJAMIN GOODHUE, JONATHAN GROUT, GEORGE LEONARD, GEORGE PARTRIDGE, GEORGE THATCHER, and THEODORE SEDGWICK. Connecticut--BENJAMIN HUNTINGTON, ROGER SHERMAN, JONATHAN STURGES, JONATHAN TRUMBULL, and JEREMIAH WADSWORTH. New York--EGBERT BENSON, WILLIAM FLOYD, JOHN HATHORN, JEREMIAH VAN RENSSELAER, JOHN LAWRENCE, and PETER SYLVESTER. New Jersey--ELIAS BOUDINOT, LAMBERT CADWALADER, JAMES SCHUREMAN, and THOMAS SINNICKSON. Pennsylvania--GEORGE CLYMER, THOMAS FITZSIMONS, THOMAS HARTLEY, DANIEL HEISTER, F. A. MUHLENBERG, _Speaker_, PETER MUHLENBERG, THOMAS SCOTT, and HENRY WYNKOOP. Delaware--JOHN VINING. Maryland--DANIEL CARROLL, BENJAMIN CONTEE, GEORGE GALE, JOSHUA SENEY, WILLIAM SMITH, and MICHAEL JENIFER STONE. Virginia--THEODORICK BLAND, JOHN BROWN, ISAAC COLES, SAMUEL GRIFFIN, RICHARD BLAND LEE, JAMES MADISON, JUN., ANDREW MOORE, JOHN PAGE, ALEXANDER WHITE, and JOSIAH PARKER. South Carolina--EDANUS BURKE, DANIEL HUGER, WILLIAM SMITH, THOMAS SUMTER, and THOMAS TUDOR TUCKER. Georgia--ABRAHAM BALDWIN, JAMES JACKSON, and GEORGE MATHEWS. The SPEAKER and twenty-five other members, viz: Messrs. FOSTER, GILMAN, LIVERMORE, AMES, GERRY, GOODHUE, GROUT, PARTRIDGE, THATCHER, SHERMAN, BENSON, FLOYD, LAWRENCE, P. MUHLENBERG, SCOTT, SENEY, BROWN, COLES, GRIFFIN, WHITE, BURKE, HUGER, SMITH, (of S. C.,) TUCKER, and BALDWIN, appeared and took their seats; but not being a quorum, they adjourned. TUESDAY, January 5. Mr. BOUDINOT took his seat.--No quorum. WEDNESDAY, January 6. Mr. SCHUREMAN, Mr. PAGE, and Mr. LEE took their seats.--No quorum. THURSDAY, January 7. JONATHAN STURGIS and JEREMIAH WADSWORTH, from Connecticut; JEREMIAH VAN RENSSELAER, from New York; DANIEL CARROLL, from Maryland; and GEORGE MATHEWS, from Georgia, appearing and taking their seats, a quorum of the whole House was present; of which the Senate were informed. The SPEAKER laid before the House a letter from the President of the United States, of the 4th instant, requesting that when there shall be a sufficient number of the two Houses of Congress assembled to proceed to business, he may be informed of it; and, also, at what time and place it will be convenient for Congress that he should meet them, in order to make some oral communications at the commencement of their session; which was read, and ordered to lie on the table. A message from the Senate informed the House, that they had appointed a committee on their part, jointly with such committee as shall be appointed on the part of the House, to wait on the President of the United States, and notify him that a quorum of the two Houses had assembled, and will be ready, in the Senate Chamber, at such time as he shall appoint, to receive any communications which he shall think proper to make. Messrs. GILMAN, AMES, and SENEY, were then appointed a committee on the part of the House for the purpose expressed in the message from the Senate. It was then ordered, That a committee be appointed to examine the Journal of the last session, and to report therefrom all such matters of business as were then depending and undetermined, and a committee was appointed, consisting of Messrs. BOUDINOT, SHERMAN, and WHITE. _Resolved_, That two Chaplains of different denominations be appointed to Congress for the present session, one by each House, who shall interchange weekly. _Ordered_, That the Clerk of the House do carry the said resolution to the Senate, and desire their concurrence. Mr. GILMAN, from the committee appointed to wait on the President of the United States, pursuant to the order of this day, reported that they had, according to order, performed that service, and that the President was pleased to say he would attend to make his communications to both Houses of Congress to-morrow morning at 11 o'clock. FRIDAY, January 8. HENRY WYNKOOP, from Pennsylvania, appeared, and took his seat. The Speaker and members present attended in the Senate Chamber, to receive the President of the United States, who addressed both Houses. His address will be found in the Proceedings of the Senate. The Speaker and the members of the House having returned from the Senate, a copy of the President's speech was read, and committed to a Committee of the whole House on to-morrow. The Journal was then read by the Clerk. Mr. BOUDINOT moved to correct the title by striking out all the words, after declaring it merely the Journal of the House of Representatives. After some further desultory conversation, the title of the Journal was established by a vote of the House, as follows: _Journal of the House of Representatives of the United States._ At a session of the Congress of United States, begun and held at the city of New York, on Monday the 4th day of January, 1790, being the second session of the First Congress, held under the present Constitution of Government, for the United States, being the day appointed by law for the meeting of the present session. On the further reading of the Minutes, Mr. THATCHER observed, that a call of the House which had taken place at the meeting was not entered on the Journal. Mr. PAGE was sorry to find any gentleman insist upon the entry of a measure which was not completed. He was concerned, likewise, that he had not been here to answer to his name, but he was delayed seven days by head winds, and two days by extreme badness of the roads. Under such circumstances, he thought the gentlemen who were so fortunate as to get here in time, deserved little more credit than those who were plunging at the risk of their lives through almost insuperable difficulties. He hoped it was not intended to stigmatize gentlemen who did not deserve it. Mr. WHITE.--If the absentees were from the remote States, there would be some indelicacy in ordering a call of the House at so early a period of the session, because there might be natural unavoidable impediments to prevent their punctual attendance, but he had observed, that the absentees were mostly from the neighboring States, Connecticut, New York, New Jersey, and Pennsylvania; and some of the members had declared, they would not come until they were informed that there was a House. Now, in order to make the Journal a true transcript of what had really passed in the House, it was necessary to have this call inserted; for the motion was regularly made, seconded, and carried; the absentees were noted, and, after some time, they were called again, and those who were known to be sick, or on their way, were apologized for, and excused; here, indeed, the business terminated, and they were not ordered into the custody of the Sergeant-at-arms. After these remarks, he concluded by saying, that he did not move to have it inserted on the Journal, and was unconcerned about it. Mr. LAWRENCE hoped the call would not be entered on the Journal, if it was intended to reproach the conduct of the absent members, for he was very well satisfied in his own mind, that few, if any, of them were guilty of neglecting their duty. Mr. WADSWORTH likewise hoped the entry would not be made. He had left home a week ago, but had been detained by head winds. He dared to say that this would be found to be the case with respect to a number of other gentlemen; and as far as his knowledge went with relation to such as were absent, it was on necessary occasions. Mr. PARTRIDGE did not wish to stigmatize any gentleman by an entry of this kind on the Journals. He meant simply that the fact should appear as it really happened in the House; however, as the business had not been completed, he would withdraw his second to the motion for having the entry made. Mr. PAGE said, no new stigma could be received by him or his colleague, (Mr. LEE.) By the entry on the Journals, it appeared they were not here on Monday or Tuesday, but on Wednesday it is said that John Page and R. B. Lee appeared, and took their seats; consequently, what he had said could not be construed to favor himself or his colleague, but it was generally for those who had not been able to get here so soon. The motion for entering on the Journals the call of the House, was withdrawn. SATURDAY, January 9. GEORGE CLYMER, from Pennsylvania, appeared, and took his seat. _Secretary of the Treasury's Report._ A letter from Alexander Hamilton, Secretary of the Treasury, was read, informing the House that, agreeably to their resolution of the 21st of September, he had prepared a Plan for the support of the Public Credit, and that he was ready to report the same to this House, when they should be pleased to receive it. It was proposed that Thursday next be assigned for this purpose. Mr. GERRY wished to add to the motion, that it should be made in writing. Mr. BOUDINOT hoped that the Secretary of the Treasury might be permitted to make his report in person, in order to answer such inquiries as the members might be disposed to make, for it was a justifiable surmise that gentlemen would not be able clearly to comprehend so intricate a subject without oral illustration. Mr. CLYMER expressed some doubts with respect to the propriety of receiving oral communications from the head of such an important department. He was rather inclined to think that such communications ought to be in writing. Mr. AMES conceived it to be the duty of the House to obtain the best information on any subject; but on this very important one they ought to be particularly careful to get it from the highest source. The Secretary of the Treasury is a most important and responsible officer; the delicacy of his situation required every indulgence to be extended to him, that had a tendency to enable him to complete the arduous undertaking in which he was engaged. It would be a real misfortune that a salutary measure should be defeated for want of being understood; yet the most advantageous plans may miscarry in their passage through this House, by reason of their not being clearly comprehended. He hoped, therefore, that the financier would be authorized to make such communications and illustrations as he judged necessary; but he wished these communications to be in writing; in this shape they would obtain a degree of permanency favorable to the responsibility of the officer, while, at the same time, they would be less liable to be misunderstood. Mr. BENSON observed, that the Secretary of the Treasury was directed, by a resolution of the last session, to prepare a plan for the support of public credit, and to report the same at this meeting. The point to be settled is whether it shall be done by an oral communication, or transmitted in writing? In the former order of the House, this point was untouched, and the Secretary was left at his discretion to prepare himself for reporting in either way; consequently when we have fixed the time for receiving his report, he may make it in the manner for which he is prepared; but no doubt, this officer, actuated by motives of deference and respect, will conform to any rule the House may think proper to enjoin. Mr. GERRY conceived it would be necessary the Secretary should be authorized, by a vote of the House, to give explanations to his plans. This, he was not expressly authorized to do by the vote of the last session, which confined him merely to prepare a plan for support of the public credit. Would any gentleman on this floor suppose himself capable of comprehending and combining the parts of a general system, calculated to produce such a grand effect? In a plan for supporting public credit may be comprehended every species of finance. The Secretary, under such an order, may propose an extension of your impost to entire new articles, an increase of some, and a diminution upon others. He may propose an introduction of a system of excise; with all these he may combine duties, stamps, and direct taxes. Can the human mind retain, with any great degree of decision, objects so extensive and multifarious upon a mere oral communication? This consideration alone ought to be sufficient to induce gentlemen to agree to his proposition of making the report in writing; but his proposition extended still further, it went to give him a right to lay before them his explanations, if he thinks explanations necessary. On the question, the resolution for receiving the report of the Secretary of the Treasury in writing, was carried in the affirmative. _President's Speech._ On motion, the House now resolved itself into a Committee of the Whole on the President's Speech. Mr. BALDWIN in the chair. Mr. SMITH (of S. C.) proposed a resolution that an address be presented to the President, in answer to his Speech to both Houses, assuring him that this House will, without delay, proceed to take into their serious consideration the various and important matters recommended to their attention. Mr. WHITE thought this motion hardly sufficient; it was too general to warrant a select committee to draft that particular reply which he hoped the House was disposed to make to every part of the President's speech; he therefore begged the gentleman to withdraw it, and permit him to substitute one in its stead, which he read in his place. Mr. BOUDINOT thought the proposition just read by the honorable gentleman from Virginia much superior to that proposed by his worthy friend from South Carolina. It must have struck every gentleman that there were other matters contained in the Speech deserving of notice, besides those recommended to their serious consideration. There was information of the recent accession of the important State of North Carolina to the Constitution of the United States. This event ought to be recognized in a particular manner, according to its importance; and he presumed to think that its importance was of the very first magnitude. A desultory conversation now took place on amending the original proposition in such a manner as to embrace generally the subjects of the speech; when, at length, it was amended to read as follows: _Resolved_, As the sense of this committee, that an address be presented by the House to the President of the United States, in answer to his speech to both Houses, with assurances that this House will, without delay, proceed to take into consideration the various and important matters recommended to their attention. Whereupon Messrs. SMITH, (of S. C.,) CLYMER, and LAWRENCE, were appointed a committee to prepare the said address. MONDAY, January 11. JONATHAN TRUMBULL, from Connecticut; JOHN HATHORN, from New York; and ANDREW MOORE, from Virginia, appeared, and took their seats. _Answer to the President's Speech._ Mr. SMITH, (of South Carolina,) from the committee appointed for the purpose of preparing an address in answer to the President's speech, presented a report; which being read, Mr. PAGE moved to go into a Committee of the Whole on the same to-morrow, which was agreed to. TUESDAY, January 12. Agreeably to the order of the day the House resolved itself into a Committee of the Whole on the address in answer to the President's speech to both Houses. Mr. BALDWIN being placed in the chair, the address was read as follows: _The Address of the House of Representatives to the President of the United States._ The Representatives of the people of the United States have taken into consideration your speech to both Houses of Congress at the opening of the present session. We reciprocate your congratulations on the accession of North Carolina; an event which, while it is a testimony of the increasing good-will towards the Government of the Union, cannot fail to give additional dignity and strength to the American Republic, already rising in the estimation of the world in national character and respectability. The information that our measures of the last session have not proved dissatisfactory to our constituents, affords us much encouragement at this juncture, when we are resuming the arduous task of legislating for so extensive an empire. Nothing can be more gratifying to the representatives of a free people than the reflection, that their labors are rewarded by the approbation of their fellow-citizens. Under this impression, we shall make every exertion to realize their expectations, and to secure to them those blessings which Providence has placed within their reach. Still prompted by the same desire to promote their interests which then actuated us, we shall, in the present session, diligently and anxiously pursue those measures which shall appear to us conducive to that end. We concur with you in the sentiment that agriculture, commerce, and manufactures, are entitled to legislative protection, and that the promotion of science and literature will contribute to the security of a free Government; in the progress of our deliberations, we shall not lose sight of objects so worthy of our regard. The various and weighty matters which you have judged necessary to recommend to our attention, appear to us essential to the tranquillity and welfare of the Union, and claim our early and most serious consideration. We shall proceed, without delay, to bestow on them that calm discussion which their importance requires. We regret that the pacific arrangements pursued with regard to certain hostile tribes of Indians, have not been attended with that success which we had reason to expect from them; we shall not hesitate to concur in such further measures as may best obviate any ill effects which might be apprehended from the failure of those negotiations. Your approbation of the vote of this House at the last session, respecting the provision for the public creditors, is very acceptable to us: the proper mode of carrying that resolution into effect, being a subject in which the future character and happiness of these States are deeply involved, will be among the first to claim our attention. The prosperity of the United States is the primary object of all our deliberations, and we cherish the reflection, that every measure which we may adopt for its advancement, will not only receive your cheerful concurrence, but will at the same time derive from your co-operation additional efficacy in insuring to our fellow-citizens the blessings of a free, efficient, and equal Government. FRED'K A. MUHLENBERG, _Speaker of the House of Representatives_. Mr. BOUDINOT moved to strike out at the beginning of the third paragraph "the information," because the House were possessed of this knowledge by other means: they had, during the recess of Congress, an opportunity of consulting their constituents, and could therefore say of their own motion, that the measures of the last session have not proved dissatisfactory. Mr. CLYMER, as one of the committee appointed to prepare a report, had agreed to the address, but he did not think himself precluded from agreeing to what he supposed would be an amendment. The words appeared to him necessary, as they were strongly implied, inasmuch as the address was in answer to the speech of the President, which really contained such information. Mr. SMITH (of South Carolina) contended, that the House had no information with respect to the satisfaction their constituents experienced in the measures of the last session, except what was contained in the President's speech. He did not presume to deny, but every individual member of Congress might have received information of this nature in private conversation with the people, but no official communication could possibly be got at; it was therefore necessary to recognize, in the address, the quarter from whence they drew that information; in this view he considered the words necessary, and hoped they would be retained. Mr. BOUDINOT meant to avoid the idea that it was from the Executive alone they drew this information, when it was a notorious fact, perceptible to common observation. Mr. LAWRENCE said, the Executive was the proper source to draw such information from, and he was very happy to learn it from so respectable a quarter; he therefore hoped it would be permitted to remain in the report. The question was now taken for striking out the words, and it passed in the negative. It was then moved to strike out, in the first line of the fourth paragraph, the word "gratifying" and insert "grateful." Mr. WADSWORTH did not mean to call in question the right of gentlemen to amend the address in what manner they thought proper, but he would just remark, that the composition of two or three gentlemen, done with deliberation and coolness, generally had more elegance and pertinency, than the patchwork of a large assembly. He should therefore vote against every alteration that went to nothing more than to change the style; if gentlemen were disposed to contend for principle, he should listen to them with attention, and decide according to the best of his judgment, but he really conceived it to be a waste of time to discuss the propriety of two such terms as grateful and gratifying. Mr. PAGE hoped that gentlemen would proceed to amend the address in such a way as to give it the highest degree of perfection. He would rather have his feelings hurt, provided they could be said to be hurt by changing the language of his most favorite production, than that an address should go from this body with any incorrectness whatever. He hoped the House would always criticise upon, strike out and amend, whatever matter was before them with boldness and freedom. And he would observe to gentlemen, that the most refined and accurate writers were never ashamed to have it said of them, that they blotted out. Mr. WHITE said, that every gentleman had an undoubted right to take the sense of the House upon an amendment, and that it ought not to be considered as a reflection upon those who drew up the address. Mr. WADSWORTH did not pretend to be a critic, but thought he understood the meaning of the words gratifying and grateful, and he conceived the difference to be too trifling to engage the attention of the House. He hoped that he had been as modest as a man could be in his observations, and was sorry to have drawn his worthy friend from Virginia into any severities. Mr. THATCHER apprehend the meaning of these two words to be the same, and the reception of either was only important as it related to the measure or harmony of the period. Now those gentlemen who are qualified to decide this point, might vote for the substitute; but for his part he was very well satisfied with it as it stood. Mr. STURGES wished the sentence struck out altogether, because he did not conceive the assertion to be true; for he did believe that there was something which could and ought to be more gratifying to the representatives of a free people than the reflection that their labors are rewarded by the approbation of their fellow-citizens; to be sure it was a grateful reflection, but there was one much more so, which was, that their labors had tended to advance the real interests of the people. If it is, as it ought to be, our highest ambition to promote the general interest, it must be most gratifying to us to learn that we have attained that desirable end. Mr. PAGE had only heard some expressions from the gentleman from Connecticut (Mr. WADSWORTH) which he imagined had a tendency to discourage the House from making necessary alterations; but he was convinced, from the known candor and impartiality of that gentleman, that he must not have fully comprehended his intentions, and therefore begged to apologize to him for any thing he might have said partaking of severity. The question was now put for striking out "gratifying" and inserting "grateful," and passed in the negative. The committee then agreed to the report, rose, and the Chairman reported it without amendment. Mr. Speaker being seated in the chair, the address was read again and unanimously agreed to by the House. It was then moved that a committee be appointed to wait on the President of the United States, to learn from him at what time, and in what place he would receive this address. Messrs. SMITH, (of South Carolina,) CLYMER, and LAWRENCE, were appointed the committee on this occasion. WEDNESDAY, January 13. BENJAMIN HUNTINGTON, from Connecticut; LAMBERT CADWALADER, from New Jersey; DANIEL HEISTER, from Pennsylvania, and WILLIAM SMITH, from Maryland, appeared and took their seats. Mr. SMITH (of South Carolina) reported that the President would be ready to receive their address to-morrow at 12 o'clock. THURSDAY, January 14. THEODORE SEDGWICK, from Massachusetts, and THOMAS HARTLEY, from Pennsylvania, appeared and took their seats. The House then went and presented the address to the President, to which the President was pleased to make the following reply: _Gentlemen:_ I receive, with pleasure, the assurances you give me, that you will diligently and anxiously pursue such measures as shall appear to you conducive to the interests of your constituents; and that an early and serious consideration will be given to the various and weighty matters recommended by me to your attention. I have fall confidence that your deliberations will continue to be directed by an enlightened and virtuous zeal for the happiness of our country. GEO. WASHINGTON. FRIDAY, January 15. JAMES JACKSON, from Georgia, appeared and took his seat. Mr. HARTLEY moved an adjournment, when Mr. PAGE rose and said, he wished to call the attention of the House, before they adjourned, to a subject which he thought of importance, and which ought no longer to be in the undecided state it had been in since the last session; it was this, whether the persons who had taken down and published the debates of the House, by the tacit consent of the members during the last session, and who had withdrawn from the seats they then held in the House, to the gallery, during this session, might not return to the same seats. He supposed that they had modestly withdrawn, on the supposition that the debate which took place just before the adjournment, showed that the sense of the members was against their sitting in the House; but the contrary was the case; that he knew their publications had given great satisfaction to many of the constituents of that House; that the House was applauded for its conduct on that occasion, both at home and abroad, and had been highly commended for it in some British publications; that he was anxious that the short-hand writers should resume their seats in the House, lest it might be insinuated by the jealous enemies of our Government, that the House of Representatives were more republican and indulgent the last session than this; that removing those writers to the gallery, was but a step towards removing them from the House, and that this suspicion would be increased by circumstances which, however innocent, nay proper in themselves, might be misunderstood and excite uneasiness. The doors of the gallery had been two days shut, the House had made a parade through the streets, and had displayed their eagle in their hall; that these circumstances, if followed by the exclusion of the short-hand writers, might spread an alarm which ought to be avoided; he therefore hoped that those gentlemen who had retired to the gallery might be informed that they might return to the seats they occupied in the last session--that he avoided making a regular motion to this effect, because he knew that some worthy members who wished to admit those writers, or any others, did not think their admission ought to be sanctioned by vote, and appear on the journals, lest that might sanction and authenticate erroneous publications; but that if he should not discover that the sense of the members present was in favor of the ideas he had expressed, that to-morrow he would bring forward a motion made by a member from South Carolina, (Mr. TUCKER,) last session, for that purpose, for he had no fears that a vote of the House to authorize the admission of such writers, would make the House answerable for their publications. Mr. HARTLEY withdrew his motion for adjournment, in order that the subject alluded to by the gentleman from Virginia (Mr. PAGE) might be understood. Mr. WHITE said, he felt averse to enter into a positive resolution for the admission of any person to take down the debates, but wished them permitted to a convenient seat within the bar for the purpose of hearing with greater accuracy. But he feared that a vote of the House would give a sanction to the details, which the publications ought not to have. Not that he thought them worse than similar publications in other countries; on the contrary, he thought them better, if he judged from what had fallen under his particular observation, and what he recollected to have from others. He did not wish a positive motion for the admission of short-hand writers, because gentlemen might object to a vote of the kind, and he should be very loth to discourage publications of the advantages of which he was well convinced; he knew they had given great satisfaction to the people of America, and it was a satisfaction of which he would not deprive them. Although these publications had not given an exact and accurate detail of all that passed in Congress, yet their information had been pretty full, and he believed the errors not very many; those that were made, he supposed to arise rather from haste or inadvertence, than from design. He was convinced of this, from the disposition the publishers had manifested to correct any errors that were pointed out, and the pains they sometimes took to ask gentlemen what were their particular expressions, when they either did not hear distinctly, or did not comprehend the speaker's meaning. He wished, therefore, the business might go on; but silently, as it had heretofore done, without the express approbation of the House. He was fully convinced, that neither the editor of the Register, nor any other man, but the members of the House, had a right to a seat within those walls, without the consent of every member; but he thought this consent would be tacitly given if no gentleman opposed their introduction, and in this way he most heartily concurred with his colleague in agreeing to the admission of such persons as thought themselves qualified, and were inclined to take down and publish their debates and proceedings; he should be glad to see them in the seats they had last session, but he should object to the vote being entered on the journals of the House. Mr. BOUDINOT thought the mode proper to be pursued on this occasion, would be to give a discretionary power to the Speaker to admit such persons as he thought proper. Under such a regulation, short-hand writers might be admitted, without giving to their publications any degree of legislative authority. Mr. THATCHER hoped that it was not the intention of gentlemen to confine the business to one person only, because others might appear of equal capacity, and equally deserving of encouragement. Mr. PAGE said, he did not wish to confine the vote to any two or three writers, he cared not how many were admitted. It ought to be remembered, that he said, when this subject was before the House at the last session, that he saw no reason why Mr. FENNO should not be within the House as well as Mr. LLOYD, instead of being in the gallery. He had no objection to admitting any number of short-hand writers, provided they did not incommode the members. Mr. SMITH, (of South Carolina.)--I do not wish, Mr. Speaker, to exclude others from a convenient seat; but at the same time, I think those who were here before, have a pre-emption right to the best. I assure you, sir, I am sorry for the loss of them off the floor, because I think their publications had a salutary tendency. It has been said, that it was the design of the short-hand writers to give a partial representation of our proceedings. I believe, if they are not correctly given, it is owing to the hurry in which business of this kind is conducted, and I am confirmed in this opinion, by some errors which I have discovered in the publication of our proceedings. It was said that a committee was appointed to bring in a bill for the preservation and safe-keeping of the _accounts_ of the United States. I thought within myself that we were not so tenacious on this head, therefore suspected some mistake, and on consulting the journals I found that a committee had been appointed to bring in a bill for the safe-keeping and preservation of the _acts_ of the United States. The similarity of the letters in those two words, and the great abridgment short-hand writers are obliged to make for the sake of expedition, may have caused him to substitute the one for the other. In another place I found a greater blunder still; it was said, that the House had appointed a committee for the regulation of the _barbers_ of the United States; this struck me as a very gross misrepresentation, for I could hardly believe that the Legislature of the Union would, at so early a day, attempt to usurp an authority not vested in them by the constitution, and that, too, over a body of men who could at any time put an end to the tyranny with the edge of the razor; but on searching the minutes in this case, I found that a bill was brought in for the regulation of the _harbors_ of the United States. Upon the whole, I believe, inaccurate as this work is, it has given to our constituents great satisfaction, and I should be glad to see our _Argus_ restored to his former situation behind the Speaker's chair, from whence he could both see and hear distinctly every thing that passed in the House. TUESDAY, January 19. The bill for enumerating the inhabitants of the United States was read a second time, and ordered to be committed to a Committee of the Whole. WEDNESDAY, January 20. JAMES MADISON and JOSIAH PARKER, from Virginia, appeared and took their seats. THURSDAY, January 21. GEORGE LEONARD, from Massachusetts, PETER SYLVESTER, from New York, and THOMAS FITZSIMONS, from Pennsylvania, appeared and took their seats. MONDAY, January 25. _Census of the Union._ The House resolved into Committee of the Whole on the bill providing for the actual enumeration of the inhabitants of the United States, Mr. BALDWIN in the chair. Mr. MADISON observed, that they had now an opportunity of obtaining the most useful information for those who should hereafter be called upon to legislate for their country, if this bill was extended so as to embrace some other objects besides the bare enumeration of the inhabitants; it would enable them to adapt the public measures to the particular circumstances of the community. In order to know the various interests of the United States, it was necessary that the description of the several classes into which the community is divided should be accurately known. On this knowledge the Legislature might proceed to make a proper provision for the agricultural, commercial, and manufacturing interests, but without it they could never make their provisions in due proportion. This kind of information, he observed, all Legislatures had wished for; but this kind of information had never been obtained in any country. He wished, therefore, to avail himself of the present opportunity of accomplishing so valuable a purpose. If the plan was pursued in taking every future census, it would give them an opportunity of marking the progress of the society, and distinguishing the growth of every interest. This would furnish ground for many useful calculations, and at the same time answer the purpose of a check on the officers who were employed to make the enumeration; forasmuch as the aggregate number is divided into parts, any imposition might be discovered with proportionable ease. If these ideas meet the approbation of the House, he hoped they would pass over the schedule in the second clause of the bill, and he would endeavor to prepare something to accomplish this object. The committee hereupon agreed to pass over the part of the bill alluded to. Mr. LIVERMORE moved to amend the last clause of the bill, by striking out all that related to the mode of compensating the Marshal and his assistants, which were specified sums, proportioned to the service, and to substitute a provision, authorizing the Marshal, or his assistants, to receive from every male white inhabitant above the age of twenty-one, five cents; and of the owner of every male slave, of like age, three cents; reserving, for his own use, four cents out of every five, and paying the other one cent to the Marshal. He thought this was an equitable tax, agreeable to the spirit of the constitution; that it might be collected with safety and satisfaction; while, on the other hand, the mode proposed in the bill would be extremely inconvenient; it would draw a considerable sum out of the Treasury, which their present situation did not enable them to spare. On the question this motion was lost. The committee then, after making some small amendments, rose and reported progress. THURSDAY, January 28. _Report of the Secretary of the Treasury._ Mr. AMES observed, that the subject of the Secretary's report, on the means of promoting public credit, is the order for this day; but when I consider the circumstances under which this order was entered into, I am inclined to wish for an extension of the time. It will be recollected that this report was ordered to be printed, in order that the members might have it in their hands for consideration; when this was done, it was expected that the printing would be more expeditiously executed than the event has demonstrated it could be, of consequence our time for deliberation has been curtailed; and those gentlemen who were against so early a day before, will think the present rather premature. In order to accommodate them, I shall move you a longer day than otherwise I might be disposed to do; and if I am seconded, I move that the order of the day be postponed till next Monday week. Mr. JACKSON.--The report of the Secretary of the Treasury, Mr. Speaker, embraces subjects of the utmost magnitude, which ought not to be lightly taken up, or hastily concluded upon. It appears to me to contain two important objects, worthy of our most serious and indefatigable disquisition. The first is, that all idea of discrimination among the public creditors, as original holders and transferees, ought to be done away; and on this head, I must own to you, sir, that I formerly coincided in something like the same opinion, but circumstances have occurred, to make me almost a convert to the other. Since this report has been read in this House, a spirit of havoc, speculation, and ruin, has arisen, and been cherished by people who had an access to the information the report contained, that would have made a _Hastings_ blush to have been connected with, though long inured to preying on the vitals of his fellow-men. Three vessels, sir, have sailed within a fortnight from this port, freighted for speculation; they are intended to purchase up the State and other securities in the hands of the uninformed, though honest citizens of North Carolina, South Carolina, and Georgia. My soul rises indignant at the avaricious and moral turpitude which so vile a conduct displays. Then, sir, as to the other object of the report, the assumption of the State debts by the General Government, it is a question of delicacy as well as importance. The States ought to be consulted on this point, some of them may be against the measure, but surely it will be prudent in us to delay deciding upon a subject that may give umbrage to the community. For my part, before I decide, I should be glad to know the sentiments of the Legislature of the State from which I come, and whether it would, in their opinion, be more conducive to the general and particular interests of these United States, than retaining them on their present footing. I trust I am not singular on this point; for gentlemen desirous of deciding on full information, will not only wish for the sense of the Legislatures of the several States, but of every individual also. Perhaps gentlemen of the neighboring States may think it proper to take up this business at an early day, because they can learn the desires of their constituents in a short time; but let those gentlemen consider for a moment, that the distant States ought to have an equal opportunity, and we cannot hear the voice of Georgia in a week, nor a month. I should therefore be as much in the dark on Monday week, as I am at present; I would wish, if the postponement is intended to answer any valuable purpose, that it should be extended to a longer period. I think the first Monday in May would be sufficiently soon to enter upon it, and shall therefore move it. In this time, the State Legislatures may have convened, and be able to give us their sentiments on a subject in which they are so deeply concerned. Mr. BOUDINOT agreed with the honorable gentleman who was last up, that this subject is a matter of the highest importance, and worthy of due deliberation; that speculation had risen to an alarming height; but this consideration bade him to be in favor of the only measure which could put a stop to the evil, that is, appreciating the public debt, till the evidences in the hands of the creditors came to their proper value. I also agree, said he, with the gentleman, that it would be a desirable thing to have the sense of the State Legislatures, and every part of the community, because it would tend to elucidate the subject; but we should not be led by visionary pursuits to defer a business of this magnitude too long. I think we may go into a Committee of the Whole on Monday week, without coming to a final determination; but if it is put off for a long period, it will cause a still greater fluctuation in the market, and increase those circumstances which the honorable gentleman laments as injurious to the peace and happiness of the community. We had better, therefore, look the business in the face, take it into consideration, and go through it deliberately; but, at the same time, as expeditiously as the novelty of our circumstances will admit. In this way also we may acquire information, because we obtain more from listening to each other's sentiments, than we can procure from any other source. But if, after all, gentlemen should find themselves unprepared on Monday week, the business may be postponed to a further day. But I would by no means consent to lose sight of it for so long a period as from now till May. Mr. JACKSON.--If the members of this body had known the plan in contemplation, and they had had an opportunity of consulting their constituents on the subject, then, I venture to say, this demon of speculation would not have extended its baleful influence over the remote parts of the Union. It arose and seized on us by surprise, advantages are taken without any warning, and such as cannot but exasperate. But, sir, waiving all these reflections, let us recollect that the State of North Carolina forms a part of this Union; this measure is to affect her, as well as the States who are represented on this floor. Shall we then proceed without them? Her citizens are indubitably as much concerned in the event as others, and will you bind her in a case of this importance, when she has not a single Representative within these walls? If no other consideration can induce gentlemen to defer this business, deference to a sister State who has so lately acceded to the Union ought. But, in addition to this, I contend that the State Legislatures ought to be consulted; and I declare myself, that I shall not know how to vote until I learn the sense of my constituents. If we consent to this proper and reasonable delay, our constituents will be prepared for our decisions, and a stop will be put to the speculation; or if any man burns his fingers, which I hope to God, with all the warmth of a feeling heart, they may, they will only have their own cupidity to blame. The people will then generally remain satisfied, under the general assurance, that Congress will pursue proper measures for the support of public credit, and little or no evil can be apprehended; but much substantial good may arise from a delay of a few months. Mr. SHERMAN hoped the business would be conducted in such a way as to be concluded before the end of the present session. As to obtaining the sense of the State Legislatures, he did not think that necessary. The people appointed the members of this House, and their situation enabled them to consult and judge better what was for the public good, than a number of distinct parts, void of relative information, and under the influence of local views. He supposed that Congress contained all the information necessary to determine this or any other national question. As to the first observation of the gentleman from Georgia, that speculations had been carried on to a great extent, he had only to observe, that this had been the case from the time when the public securities were first issued, and he supposed they would continue until the holders were satisfied with what was done to secure the payment. As to the State debts, it was a subject which he apprehended would not be ultimately decided, till the sense of the people is generally known; and on this occasion, it might be well to be acquainted with the sense of the State Legislatures; he hoped, therefore, that it would be the case. But with regard to the foreign and domestic continental debts, he did not hesitate to say, it was proper for Congress to take them into consideration as speedily as possible; for the sooner they are discussed, the sooner will the House make up there judgment thereon. He believed they were possessed of all the facts they could be possessed of, and therefore any great delay was improper. He was in favor of making the business the order of the day for Monday week. Mr. SEDGWICK.--I believe the House at present have not come to a conclusion in their own opinion, on the various circumstances which are necessary to be attended to in the report of the Secretary of the Treasury; therefore, I think some delay is necessary, but it should be as early a day as we could act upon it understandingly. The ardent expectations of the people on this subject want no other demonstration than the numerous body of citizens assembled within these walls.[32] And while the public expectation is kept thus alive and in suspense, gentlemen cannot but suppose designs will be framed and prosecuted that may be injurious to the community. For, although I do not believe that speculation, to a certain degree, is baneful in its effects upon society, yet, when it is extended too far, it becomes a real evil, and requires the administration to divert or suppress it. If the capital employed in merchandise is taken from that branch of the public interest, and employed in speculations no way useful in increasing the labor of the community, such speculation would be pernicious. The employment of the time of merchants in this way, in addition to the employment of their capital, is a serious and alarming circumstance. A spirit of gambling is of such evil tendency, that every legislative endeavor should be made to suppress it. From these considerations, I take it, Mr. Speaker, that there are two things very evident; first, that the postponement should be so long as to enable us to enter upon the task with understanding; and that this pernicious temper, or spirit of speculation, should be counteracted at as early a period as can possibly take place. Mr. GERRY.--I am a friend to the postponement, Mr. Speaker, though not for so long a time as the gentleman from Georgia proposes. It will be agreed, on all hands, that public credit is the main pillar on which this Government is to stand; but so embarrassed are our finances, that they require both time and consideration for their due arrangement. With respect to the suppression of speculation, I do not conceive that possible, by either a longer or a shorter postponement. Does any gentleman expect, while we have a public debt, to prevent speculation in our funds? If they do, they expect to accomplish what never was effected by any nation, nor, in my opinion, ever will be. But if they could accomplish it, they would do an injury to the community; for speculation gives a currency to property that would lie dormant; all public debts would hereafter be contracted on terms ruinous to the debtors. As to the policy of speculation, I doubt whether the speculation of foreigners in our funds is not rather advantageous than disadvantageous to the community. If we look abroad, and judge by comparative reasoning, we shall be led to believe that nations derive great advantages from being possessed of the money of foreigners; they not only endeavor to acquire it by direct, but also by indirect loans. During the late war, the Dutch held 40 or 50,000,000 sterling, in the funds of Great Britain, and she was sensible of the benefit. The speculations of individuals have perhaps been of the greatest advantage to those who held public securities, by giving a circulation to the certificates. Hence it has been thought that a public debt is a source of great emolument to a nation, by extending its capital, and enlarging the operations of productive industry. Mr. JACKSON.--I know, sir, that there is, and will be, speculation in the funds of every nation possessed of public debt; but they are not such as the present report has given rise to, by the advantage those at the seat of Government obtained of learning the plan contemplated by the principal of the Treasury Department, before others had heard a word thereof. If we had either received this report privately, or not sat in a large city, then, sir, none of these speculations would have arisen, because Congress could have devised means of diffusing the information so generally as to prevent any of its ill effects. Under these impressions, I am led to express my ardent wish to God, that we had been on the banks of the Susquehanna or Potomac, or at any place in the woods, and out of the neighborhood of a populous city; all my unsuspecting fellow-citizens might then have been warned of their danger, and guarded themselves against the machinations of the speculators. To some gentlemen, characters of this kind may appear to be of utility; but I, sir, view them in a different light; they are as rapacious wolves, seeking whom they may devour, and preying upon the misfortunes of their fellow-men, taking an undue advantage of their necessities. This, sir, is the sentiment of my heart, and I will always use its language. I say, sir, whatever might be the happy effects of speculation in other countries, it has had the most unhappy and pernicious effects in this. Look at the gallant veteran, who nobly led your martial bands in the hour of extreme danger, whose patriotic soul acknowledged no other principle than that his life was the property of his country, and who evinced it by his repeated exposures to a vengeful enemy. See him deprived of those limbs, which he sacrificed in your service! and behold his virtuous and tender wife sustaining him and his children in a wilderness, lonely, exposed to the arms of savages, where he and his family have been driven by these useful class of citizens, these speculators, who have drained from him the pittance which a grateful country had afforded him, in reward for his bravery and toils, and a long catalogue of merits. Nor is their insatiable avarice yet satisfied, while there remains a single class of citizens who retain the evidence of their demands upon the public; the State debts are to become an object for them to prey upon, until other citizens are driven into scenes of equal distress. Is it not the duty of the House to check this spirit of devastation? It most assuredly is. If by the ill-timed promulgation of this report, we have laid the foundation for the calamity, ought we not to counteract it? This may be done by postponing the subject, until the sense of the State Legislatures is obtained, with respect to their particular debts. Then these men may send off other vessels to countermand their former orders; and, perhaps, we may yet save the distant inhabitants from being plundered by these harpies. MONDAY, February 1. GEORGE GALE, from Maryland, appeared and took his seat. TUESDAY, February 2. THEODORE BLAND, from Virginia, appeared and took his seat. WEDNESDAY, February 3. The engrossed bill for enumerating the inhabitants of the United States was read the third time, and then ordered to lie on the table. _Rule of Naturalization._ The House then went into a Committee of the Whole on the bill establishing a uniform rule of Naturalization, Mr. BALDWIN in the chair. The first clause enacted, that all free white persons, who have, or shall migrate into the United States, and shall give satisfactory proof, before a magistrate, by oath, that they intend to reside therein, and shall take an oath of allegiance, _and shall have resided in the United States for one whole year_, shall be entitled to all the rights of citizenship, except being capable of holding an office under the State or General Government, which capacity they are to acquire after a residence of two years more. Mr. TUCKER moved to strike out the words "and shall have resided within the United States for one whole year;" because he conceived it the policy of America to enable foreigners to hold lands, in their own right, in less than one year; he had no objection to extending the term, entitling them to hold an office under Government, to three years. In short, the object of his motion was, to let aliens come in, take the oath, and hold lands without any residence at all. Mr. HARTLEY said, he had no doubt of the policy of admitting aliens to the rights of citizenship; but he thought some security for their fidelity and allegiance was requisite besides the bare oath; that is, he thought an actual residence of such a length of time as would give a man an opportunity of esteeming the Government from knowing its intrinsic value, was essentially necessary to assure us of a man's becoming a citizen. The practice of almost every State in the Union countenanced a regulation of this nature; and perhaps it was owing to a wish of this kind, that the States had consented to give this power to the General Government. The terms of citizenship are made too cheap in some parts of the Union; to say, that a man shall be admitted to all the privileges of a citizen, without any residence at all, is what can hardly be expected. The policy of the old nations of Europe has drawn a line between citizens and aliens: that policy has existed to our knowledge ever since the foundation of the Roman Empire; experience has proved its propriety, or we should have found some nation deviating from a regulation inimical to its welfare. From this it may be inferred, that we ought not to grant this privilege on terms so easy as is moved by the gentleman from South Carolina. If he had gone no further in his motion than to give aliens a right to purchase and hold lands, the objection would not have been so great; but if the words are stricken out that he has moved for, an alien will be entitled to join in the election of your officers at the first moment he puts his foot on shore in America, when it is impossible, from the nature of things, that he can be qualified to exercise such a talent; but if it was presumable that he was qualified by a knowledge of the candidates, yet we have no hold upon his attachment to the Government. Mr. SHERMAN thought that the interest of the State where the emigrant intended to reside ought to be consulted, as well as the interests of the General Government. He presumed it was intended by the convention who framed the constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner. It was therefore meant to guard against an improper mode of naturalization, rather than foreigners should be received upon easier terms than those adopted by the several States. Now, the regulation provided for in this bill, entitles all free white persons, which includes emigrants, and even those who are likely to become chargeable. It certainly never would be undertaken by Congress to compel the States to receive and support this class of persons; it would therefore be necessary that some clause should be added to the bill to counteract such a general proposition. Mr. PAGE was of opinion, that the policy of European nations and States respecting naturalization, did not apply to the situation of the United States. Bigotry and superstition, or a deep-rooted prejudice against the Government, laws, religion, or manners of neighboring nations had a weight in that policy, which cannot exist here, where a more liberal system ought to prevail. I think, said he, we shall be inconsistent with ourselves, if, after boasting of having opened an asylum for the oppressed of all nations, and established a Government which is the admiration of the world, we make the terms of admission to the full enjoyment of that asylum so hard as is now proposed. It is nothing to us, whether Jews or Roman Catholics settle amongst us; whether subjects of kings, or citizens of free States wish to reside in the United States, they will find it their interest to be good citizens, and neither their religious nor political opinions can injure us, if we have good laws, well executed. Mr. BOUDINOT was against striking out the words, because he would rather choose to alter it from one year to two years, than strike out all that respected the capacity of an alien to be elected into any office. He conceived, that after a person was admitted to the rights of citizenship, he ought to have them full and complete, and not be divested of any part. Mr. WHITE noticed the inconvenience which would result from permitting an alien to all the rights of citizenship, merely upon his coming and taking an oath that he meant to reside in the United States. Foreign merchants and captains of vessels might by this means evade the additional duties laid on foreign vessels; he thought, therefore, if the words were struck out, that another clause ought to be added, depriving persons of the privilege of citizenship, who left the country and staid abroad for a given length of time. Mr. LAWRENCE was of opinion, that Congress had nothing more to do than point out the mode by which foreigners might become citizens. The constitution had expressly said how long they should reside among us before they were admitted to seats in the Legislature; the propriety of annexing any additional qualifications is therefore much to be questioned. But this bill is not confined to the qualifications of the General Government only, it descends to those of the State Governments; it may be doubly questioned how far Congress has the power to declare what residence shall entitle an alien to the right of a seat in the State Legislatures. The reason of admitting foreigners to the rights of citizenship amongst us is the encouragement of emigration, as we have a large tract of country to people. Now, he submitted to the sense of the committee, whether a term, so long as that prescribed in the bill, would not tend to restrain rather than encourage emigration? It has been said, that we ought not to admit them to vote at our elections. Will they not have to pay taxes from the time they settle amongst us? And is it not a principle that taxation and representation ought to go hand and hand? Shall we then restrain a man from having an agency in the disposal of his own money? It has been also observed, that persons might come and reside amongst us for some time, and then leave the country; he did not doubt that such might be the case, but it was not presumable, that after they had once taken an oath that they meant to reside here, and had become citizens, that they would return as soon as the occasion which required their absence had terminated. Mr. MADISON.--When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuses. It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. But why is this desirable? Not merely to swell the catalogue of people. No, sir, it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community, are not the people we are in want of. And what is proposed by the amendment is, that they shall take nothing more than an oath of fidelity, and declare their intention to reside in the United States. Under such terms, it was well observed by my colleague, aliens might acquire the right of citizenship, and return to the country from which they came, and evade the laws intended to encourage the commerce and industry of the real citizens and inhabitants of America, enjoying at the same time all the advantages of citizens and aliens. I should be exceedingly sorry, sir, that our rule of naturalization excluded a single person of good fame that really meant to incorporate himself into our society; on the other hand, I do not wish that any man should acquire the privilege, but such as would be a real addition to the wealth or strength of the United States. It may be a question of some nicety, how far we can make our law to admit an alien to the right of citizenship, step by step; but there is no doubt we may, and ought to require residence as an essential. Mr. SMITH (of South Carolina) thought some restraints proper, and that they would tend to raise the Government in the opinion of good men, who are desirous of emigrating; as for the privilege of electing, or being elected, he conceived a man ought to be some time in the country before he could pretend to exercise it. What could he know of the Government the moment he landed? Little or nothing: how then could he ascertain who was a proper person to legislate or judge of the laws? Certainly gentlemen would not pretend to bestow a privilege upon a man which he is incapable of using? Mr. HARTLEY said that the subject had employed his thoughts for some time, and that he had made up his mind in favor of requiring a term of residence. The experience of all nations, and the constitutions of most of the States induced the same opinion. An alien has no right to hold lands in any country, and if they are admitted to do it in this, we are authorized to annex to it such conditions as we think proper. If they are unreasonable, they may defeat the object we have in view, but they have no right to complain; yet, considering the circumstances of this country, he was favorable to easy terms of admission, because, he thought, it might be some inducement to foreigners to come and settle among us. It has been remarked, that we must admit those whom we call citizens to all the rights of citizenship at once. This opinion, he presumed, was not well founded; the practice of this country in no instance warrants it. The constitutions of the several States admit aliens to the privilege of citizenship, step by step; they generally require a residence for a certain time, before they are admitted to vote at elections; some of them annex to it the condition of payment of taxes and other qualifications; but he believed none of the States render a foreigner capable of being elected to serve in a legislative capacity, without a probation of some years. This kind of exception is also contemplated in the Constitution of the United States. It is there required, that a person shall be so many years an inhabitant before he can be admitted to the trust of legislating for the society. He thought, therefore, that this part of the objection is not well supported. Mr. WHITE doubted whether the constitution authorized Congress to say on what terms aliens or citizens should hold lands, in the respective States; the power vested by the constitution in Congress, respecting the subject now before the House, extends to nothing more than making a uniform rule of naturalization. After a person has once become a citizen, the power of Congress ceases to operate upon him; the rights and privileges of citizens in the several States belong to those States; but a citizen of one State is entitled to all the privileges and immunities of the citizens in the several States. Now, if any State in the Union should choose to prohibit its citizens from the privilege of holding real estates, without a residence of a greater number of years than should be thought proper by this House, they could do it, and no authority of the Government, he apprehended, could enforce an obedience to a regulation not warranted by the constitution. So, in the case of elections, if the constitution of a particular State requires four, five, or six years residence, before a man is admitted to acquire a legislative capacity, with respect to the State Government, he must remain there that length of time notwithstanding you may declare he shall be eligible after a residence of two years; all, therefore, that the House have to do on this subject, is to confine themselves to a uniform rule of naturalization, and not to a general definition of what constitutes the rights of citizenship in the several States. Mr. JACKSON conceived the present subject to be of high importance to the respectability and character of the American name; the veneration he had for, and the attachment he had to, this country, made him extremely anxious to preserve its good fame from injury. He hoped to see the title of a citizen of America as highly venerated and respected as was that of a citizen of old Rome. I am clearly of opinion, that rather than have the common class of vagrants, paupers, and other outcasts of Europe, that we had better be as we are, and trust to the natural increase of our population for inhabitants. If the motion made by the gentleman from South Carolina, should obtain, such people will find an easy admission indeed to the rights of citizenship; much too easy for the interests of the people of America. Nay, sir, the terms required by the bill on the table are, in my mind, too easy. I think, before a man is admitted to enjoy the high and inestimable privileges of a citizen of America, that something more than a mere residence amongst us is necessary. I think he ought to pass some time in a state of probation, and at the end of the term, be able to bring testimonials of a proper and decent behavior; no man, who would be a credit to the community, could think such terms difficult or indelicate: if bad men should be dissatisfied on this account, and should decline to emigrate, the regulation will have a beneficial effect; for we had better keep such out of the country than admit them into it. I conceive, sir, that an amendment of this kind would be reasonable and proper; all the difficulty will be to determine how a proper certificate of good behavior should be obtained; I think it might be done by vesting the power in the grand jury or district courts to determine on the character of the man, as they should find it. Mr. PAGE.--I observed before, Mr. Chairman, that the European policy did not apply to the United States. I gave my reasons for it; they are such as have not been controverted, and I presume cannot be. With respect to the idea of excluding bad men from the rights of citizenship, I look upon it as impracticable; hard terms of admission may exclude good men, but will not keep out one of the wretches alluded to; they will come in various forms, and care little about citizenship. If we make use of the grand jury for this purpose, as proposed by the member from Georgia, (Mr. JACKSON,) we must, to complete the plan, authorize the grand jury to indict such emigrants as are unworthy to become citizens, and expel them. We must add an inquisition, and as it will not be sufficient for our views of having immaculate citizens, we should add censors, and banish the immoral from amongst us. Indeed, sir, I fear, if we go on as is proposed now, in the infancy of our republic, we shall, in time, require a test of faith and politics of every person who shall come into these States. As to any precautions against admitting strangers to vote at elections, though I think them of less importance than some gentlemen, I object not to them; but contend, that every man, upon coming into the States, and taking the oath of allegiance to the Government, and declaring his desire and intention of residing therein, ought to be enabled to purchase and hold lands, or we shall discourage many of the present inhabitants of Europe from becoming inhabitants of the United States. Mr. LAWRENCE.--We are authorized to establish a uniform rule of naturalization; but what are the effects resulting from the admission of persons to citizenship, is another concern, and depends upon the constitutions and laws of the States now in operation. I have therefore an objection to that part of the bill which respects the qualification of the members of the State Legislatures. But with respect to residence, before a man is admitted, I am of opinion with the gentleman from Virginia, (Mr. PAGE,) at least it may be questioned, whether any good can result from it, to compensate for the evil it may effect by restraining emigration. The gentleman has said he would admit none but such as would add to the wealth or strength of the nation. Every person who comes among us must do one or the other; if he brings money, or other property with him, he evidently increases the general mass of wealth, and if he brings an able body, his labor will be productive of national wealth, and an addition to our domestic strength. Consequently, every person, rich or poor, must add to our wealth and strength, in a greater or less degree. Mr. TUCKER had no object in making his motion, but to enable people to hold lands, who came from abroad to settle in the United States. He was otherwise satisfied with the clause, so far as it made residence a term of admission to the privilege of election; but there was a seeming contradiction in making them freeholders, and, at the same time, excluding them from the performance of duties annexed to that class of citizens. He thought the citizens had a right to require the performance of such duties, by every person who was eligible under their State laws and constitutions. Now, if the motion could be modified in any way to accomplish his object with consistency, he would cheerfully acquiesce therein. He had no doubt the Government had a right to make the admission to citizenship progressive; the constitution pointed out something of this kind, by the different ages and terms of residence they annexed to the right of holding a seat in this House and in the Senate, and of being chosen President. No inhabitant can become President of the United States, unless he has been an inhabitant fourteen years; which plainly infers that he might have been a citizen for other purposes, with a shorter residence. But it goes still further, it enables Congress to dictate the terms of citizenship to foreigners, and to prevent them from being admitted to the full exercise of the rights of citizenship by the General Government; because it declares that no other than a natural-born citizen, or a citizen at the time of the adoption of this constitution, shall be eligible to the office of President. Mr. SMITH (of S. C.) hoped the question would not be put to-day, as he wished to reflect further on the subject. A variety of observations had been made, which merited the serious attention of the committee; he would suggest another. An alien, in Great Britain, is not permitted to inherit, or hold real estate for his own use; consequently, a citizen of the United States, and a subject of Great Britain, would not be on an equal footing with respect to estates descended to them by inheritance. He thought this, and other weighty observations, would induce the House to postpone the subject till to-morrow. Mr. SEDGWICK was against the indiscriminate admission of foreigners to the highest rights of human nature, upon terms so incompetent to secure the society from being overrun with the outcasts of Europe; besides, the policy of settling the vacant territory by emigration is of a doubtful nature. He believed, in the United States, the human species might be multiplied by a more eligible and convenient mode, than what seemed to be contemplated by the motion now before the committee. He was well satisfied for himself, that there existed no absolute necessity of peopling it in this way; and, if there was no absolute necessity, he thought Congress might use their discretion, and admit none but reputable and worthy characters; such only were fit for the society into which they were blended. The citizens of America preferred this country, because it is to be preferred; the like principle he wished might be held by every man who came from Europe to reside here; but there was at least some grounds to fear the contrary; their sensations, impregnated with prejudices of education, acquired under monarchical and aristocratical governments, may deprive them of that zest for pure republicanism, which is necessary in order to taste its beneficence with that gratitude which we feel on the occasion. Some kind of probation, as it has been termed, is absolutely requisite, to enable them to feel and be sensible of the blessing. Without that probation, he should be sorry to see them exercise a right which we have gloriously struggled to attain. Mr. BURKE thought it of importance to fill the country with useful men, such as farmers, mechanics, and manufacturers, and, therefore, would hold out every encouragement to them to emigrate to America. This class he would receive on liberal terms; and he was satisfied there would be room enough for them, and for their posterity, for five hundred years to come. There was another class of men, whom he did not think useful, and he did not care what impediments were thrown in their way; such as your European merchants, and factors of merchants, who come with a view of remaining so long as will enable them to acquire a fortune, and then they will leave the country, and carry off all their property with them. These people injure us more than they do us good, and, except in this last sentiment, I can compare them to nothing but leeches. They stick to us until they get their fill of our best blood, and then they fall off and leave us. I look upon the privilege of an American citizen to be an honorable one, and it ought not to be thrown away upon such people. There is another class also that I would interdict, that is, the convicts and criminals which they pour out of British jails. I wish sincerely some mode could be adopted to prevent the importation of such; but that, perhaps, is not in our power; the introduction of them ought to be considered as a high misdemeanor. Mr. STONE had no doubt but an alien might be admitted to the rights of citizenship, step by step; but he questioned the power of the House to say that a man shall be citizen for certain purposes, as it respects the individual State Governments; he concluded that the laws and constitutions of the States, and the constitution and laws of the United States would trace out the steps by which they should acquire certain degrees of citizenship. Congress may point out a uniform rule of naturalization; but cannot say what shall be the effect of that naturalization, as it respects the particular States. Congress cannot say that foreigners, naturalized under a general law, shall be entitled to privileges which the States withhold from native citizens. Mr. BOUDINOT.--An exchange of sentiment on this floor I find always tends to throw more light on a subject than is generally to be obtained in any other way. But, as the subject is not yet fully elucidated, I shall be in favor of letting it remain undecided till to-morrow, for which reason, I move the committee to rise. This motion being put, the committee rose, and reported progress, after which the House adjourned. =Tuesday=, February 4. _Rule of Naturalization._ The House again resolved itself into a Committee of the Whole on the naturalization bill, Mr. BALDWIN in the chair. Mr. TUCKER'S motion was still before the committee. The committee being about to take a question on the motion, Mr. PAGE wished it delayed until he saw the gentleman from South Carolina (Mr. BURKE) in his place. Mr. SMITH (of S. C.) said, he believed the object of his colleague was nothing more than to let foreigners, on easy terms, be admitted to hold lands; that this object could be better effected by introducing a clause to that purpose, and he had no doubt but it would be equally satisfactory to his colleague. Mr. GOODHUE was against the motion, because it made our citizenship too cheap; after it was decided against, he would move to make the term two years, instead of one, before an alien should be entitled to the privilege of a citizen. Mr. JACKSON.--It was observed yesterday, Mr. Chairman, that we could not modify or confine our terms of naturalization; that we could not admit an alien to the rights of citizenship progressively. I shall take the liberty of supporting the contrary doctrine, which I contend for, by a reference to the very accurate commentator on the laws of England, _Justice Blackstone_, I., 10.--"Naturalization," says he, "cannot be performed but by an act of Parliament; for by this an alien is put in exactly the same state as if he had been born in the King's legiance, _except_ only, that he is incapable, as well as a denizen, of being a member of the Privy Council, or Parliament, holding offices, grants, &c. No bill for naturalization can be received in either House of Parliament without such disabling clause in it." So that here we find, in that nation from which we derive most of our ideas on this subject, not only that citizens are made progressively, but that such a mode is absolutely necessary to be pursued in every act of Parliament for the naturalization of foreigners. The same learned Judge then goes on to show the attempts that were made to introduce a general system of naturalization, and how they failed; and that, to this day, even of their meritorious naval and military characters they make an exception, as to sitting in Parliament, &c., and holding grants of land from the Crown, within the Kingdoms of Great Britain and Ireland. After this, I presume, it will not be contended that we cannot found our law on the principle of a progressive and probational naturalization. Mr. HUNTINGTON.--The terms of the bill are too indefinite; they require the emigrant to take an oath that he intends to reside in the United States; but how long, and for what purpose, is not ascertained. He may determine to stay here until he accomplishes a particular object; and he may go into the most obscure part of the Union to take this oath. The community certainly will not be benefited by such emigrants, and therefore they ought not to be admitted to the privileges of citizenship. The mode of naturalization, pointed out in this bill, is much too easy. In the State to which I belong, said he, no person could be naturalized, but by an act of the Legislature; the same is the case in several of the other States, and in Britain. He never knew a good inhabitant, who wished to be admitted to the rights of citizenship, but what found this mode sufficiently easy. The term that an emigrant should reside ought to be sufficiently long to give him an opportunity of acquiring a knowledge of the principles of the Government, and of those who are most proper to administer it; otherwise he cannot exercise his privilege with any advantage to himself, or to the community. He therefore wished that the clause might be amended, in such a manner as to leave the naturalization of foreigners to the State Legislatures. Mr. BURKE.--Unless some residence is required, it may be attended with confusion. In large cities, like Boston, New-York, or Philadelphia, an election may be carried by the votes of the body of sailors who happened to be in port. If the French fleet was here at such a time, and a spirit of party strongly excited, perhaps one of the candidates might get the crews of every ship in the fleet, and after qualifying them, by taking an oath of no definite meaning, carry them up to the hustings, and place himself or his friend on this floor, contrary to the voice of nine-tenths of the city. Even a residence of one year is too short, it ought to be two, three, or four; but seven is too long. Indeed, the whole of this bill seems somehow objectionable; there are some cases also omitted, which may show the necessity of recommitting it. The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III. There are several other cases that ought to be likewise attended to. Mr. JACKSON had an objection to any persons holding land in the United States without residence, and an intention of becoming a citizen; under such a regulation the whole Western Territory might be purchased up by the inhabitants of England, France, or other foreign nations; the landholders might combine and send out a large tenantry, and have thereby such an interference in the Government as to overset the principles upon which it is established. It will be totally subversive of the old established doctrine that allegiance and land go together; a person owing no allegiance to a sovereign, ought not to hold lands under its protection, because he cannot be called upon and obliged to give that support which invasion or insurrection may render necessary. But with respect to residence and probation, before an alien is entitled to the privilege of voting at elections, I am very clear it is necessary; unless gentlemen mean to render the rank of an American citizen the maygame of the world. Shall stories be told of our citizenship, such as I have read in the Pennsylvania Magazine, of the citizenship there: if my memory serves me right, the story runs, that at a contested election in Philadelphia, when parties ran very high, and no stone was left unturned, on either side, to carry the election, most of the ships in the harbor were cleared of their crews, who, ranged under the masters and owners, came before a magistrate, took the oath of allegiance, and paid half-a-crown tax to the collector, as the constitution required, then went and voted, and decided the contest of the day. On the return of one of the vessels, whose crew had been employed in the affair of the election, they fell in with a shoal of porpoises off Cape Henlopen: "Ha!" said one of them, "what merry company have we got here! I wonder where they are going so cheerfully?" "Going," replied one of his comrades, "why, going to Philadelphia, to be sure, to pay taxes and vote for Assembly men!" I hope, Mr. Chairman, we have more respect for our situation as citizens, than to expose ourselves to the taunts and jeers of a deriding world, by making that situation too cheap. Mr. BURKE said, no person ought to be permitted to inherit by descent in America, unless the same privilege was reciprocated by other nations; perhaps this point would be properly settled by treaty, and it would be well to introduce a provisionary clause to this effect. He was also in favor of admitting foreigners to hold lands on easy terms, if they would come to reside among us: and here he would take an opportunity of doing justice to some of them, as it might be supposed, from what had fallen from various parts of the House, that foreigners, educated under a monarchy, were inimical to the pure principles of republicanism. He was convinced that this doctrine was untrue, because he had often remarked, that foreigners made as good citizens of republics as the natives themselves. Frenchmen, brought up under an absolute monarch, evinced their love of liberty in the late arduous struggle; many of them are now worthy citizens, who esteem and venerate the principles of our Revolution. Emigrants from England, Ireland, and Scotland, have not been behind any in the love of this country; so there is but little occasion for the jealousy which appears to be entertained for the preservation of the Government. Mr. TUCKER thought the bill must be recommitted; but he did not wish it done till the sense of the House was known on some of the various points that had presented themselves during the debate. With respect to the latter part of the first clause, he agreed with the gentleman from Maryland, (Mr. SENEY,) that we ought to provide a rule of naturalization, without attempting to define the particular privileges acquired thereby under the State Governments. By the Constitution of the United States, the electors of the House of Representatives are to have the qualifications requisite for electors of the most numerous branch of the State Legislatures. He presumed it was to be left to the discretion of the State constitutions, who were to be the electors of the State Legislatures, and therefore the General Government had no right to interfere therein. Mr. HARTLEY observed, that the subject was entirely new, and that the committee had no positive mode to enable them to decide; the practice of England, and the regulations of the several States, threw some light on the subject, but not sufficient to enable them to discover what plan of naturalization would be acceptable under a government like this. Some gentlemen had objected to the bill, without attending to all its parts, for a remedy was therein provided for some of the inconveniences that have been suggested. It was said the bill ought to extend to the exclusion of those who had trespassed against the laws of foreign nations, or been convicted of a capital offence in any foreign kingdom; the last clause contains a proviso to that effect, and he had another clause ready to present, providing for the children of American citizens born out of the United States. Mr. LIVERMORE thought the bill very imperfect, and that the committee ought to rise, and recommend it to be referred to a select committee; observing, that it was extremely difficult for fifty or sixty persons to arrange and make a system of a variety of motions and observations that had been brought forward. On the question being put, the committee rose and reported, and the bill was recommitted to a committee of ten.[33] MONDAY, February 8. _Public Credit._ The House then resolved itself into a Committee of the Whole on the state of the Union. The report of the Secretary of the Treasury relative to a provision for the support of public credit was before them. Mr. BALDWIN in the chair. After a silence of some minutes, Mr. LIVERMORE asked, what part of the report it was expected that gentlemen should speak to? He wished some gentleman would select such parts as he conceived to be of importance, and submit them to the committee. Mr. SMITH (of South Carolina) was of opinion, that the committee had better consider the object of the report, in separate points of view, by which means they would be able to go through the investigation with a greater degree of accuracy than if they were left to range at large in the extensive field before them. The report contains objects so various, that it is possible gentlemen may agree, with respect to one or two, and yet differ on a third: from this consideration, he was induced to suggest the idea of single and independent resolutions, and had prepared the following: if the manner met the approbation of the committee, he would lay them on the table for consideration. They were to the following effect: _Resolved_, That Congress ought not adjourn, until they have adopted such measures as will make an adequate provision for the public debt. _Resolved_, That in making such provision, no discrimination shall be made between the original holders of the evidences and the assignees thereof. _Resolved_, That such of the debts of the individual States as have been incurred by them, during the late war, ought to be assumed by the General Government, and like funds provided for them.[34] _Resolved_, That the arrearages of interest, on the Continental and State debts, ought to be funded, and consolidated with the principal. _Resolved_, That the interest to be paid thereon does not exceed ---- per cent. per annum, for the present. These motions were severally expressive of objects contemplated in the Secretary's report. The last was upon a principle of modification, such as was held out in the plan for reloaning the debt. TUESDAY, February 9. _Public credit: Providing for the public debt: Assuming the State debts: Funding their certificates: Report of General Hamilton, Secretary of the Treasury._ [To the first object, that of providing for the public debt, there was no objection; to the assumption and the funding there was a strenuous opposition, and their adoption became one of the landmarks of party.] Mr. JACKSON.--Believe me, Mr. Chairman, I have as high a sense of the obligation we are under to the public creditors, and feel as much gratitude towards them as any man on this floor. I shall ever cheerfully acknowledge the duty we owe to our benefactors, and in a peculiar manner to those brave soldiers who, at the risk of their lives and fortunes, secured the independency of America. I have also the most sincere wishes for the re-establishment of public credit, and that upon firm and solid ground, and on principles which cannot be called in question; but there appears to me a previous question, which has not yet been brought forward; it is this, whether there exists an immediate necessity for funding the national debt in the permanent manner proposed? The high regard I have for the nature and circumstances of the foreign debt, induced me to let the first proposition pass without any animadversion. The vote which has been taken on that point will serve to show foreigners that we are concerned to preserve our credit with them by a rigid performance of our stipulations; trusting, at the same time, that our fellow-citizens cannot object to a distinction so just and proper in itself; for, notwithstanding what the domestic creditors may say, it is the money of foreigners that has, in a great measure, established our independence. It is doubtful with me whether a permanent funded debt is beneficial or not to any country; some of the first writers in the world, and who are most admired on account of the clearness of their perceptions, have thought otherwise, and declared that wherever funding systems have been adopted in a Government, they tend more to injure posterity than they would injure the inhabitants to pay the whole debt at the time it was contracted. The principle, I apprehend, is demonstrated by experience; the first system of the kind that we have any account of originated in the State of Florence in the year 1634; that Government then owed about £60,000 sterling, and being unable to pay it, formed the principal into a funded debt, transferable with interest at five per cent. What is the situation of Florence in consequence of this event? Her ancient importance is annihilated. Look at Genoa and Venice; they adopted a similar policy, and are the only two of the Italian Republics who can pretend to an independent existence, but their splendor is obscured; they have never been able since the period at which a funding system was introduced to raise themselves to that formidable state to which they were before. Spain seems to have learned the practice from the Italian Republics, and she, by the anticipation of her immense revenue, has sunk her consequence beneath that level which her natural situation might have maintained. France is considerably enfeebled, and languishes under a heavy load of debt. England is a melancholy instance of the ruin attending such engagements. In the reign of King William, 1706, the policy of the English Parliament laid the foundation of what is called their national debt; but the sum was inconsiderable; it little exceeded £5,000,000 sterling; the example then set has been closely followed. In 1711, it amounted to £9,177,769 sterling, during the wars in the reign of Queen Anne; since that, the capital of the debt of Great Britain amounted, in 1777, to about £136,000,000 sterling; and to such a pitch has the spirit of funding and borrowing been carried in that country, that in 1786, their national debt had increased to £230,000,000 sterling; a burthen which the most sanguine mind can never contemplate they will ever be relieved from. If future difficulties should involve that nation still further, what must be the consequence? The same effect must be produced that has taken place in other nations; it must either bring on a national bankruptcy, or annihilate her existence as an independent empire. Hence I contend that a funding system in this country will be highly dangerous to the welfare of the Republic; it may, for a moment, raise our credit, and increase our circulation by multiplying a new species of currency; but it must hereafter settle upon our posterity a burthen which they can neither bear nor relieve themselves from. It will establish a precedent in America that may, and in all probability will be pursued by the sovereign authority, until it brings upon us that ruin which it has never failed to bring, or is inevitably bringing, upon all the nations of the earth who have had the temerity to make the experiment. Let us take warning by the errors of Europe, and guard against the introduction of a system followed by calamities so universal. Though our present debt be but a few millions, in the course of a single century it may be multiplied to an extent we dare not think of; for my part, I would rather have direct taxes imposed at once, which, in the course of a few years, would annihilate the principal of our debt. A few years' exertion in this way will save our posterity from a load of annual interest, amounting to the fifth, or perhaps the half of the sum we are now under engagements to pay. But why, Mr. Chairman, should we hasten on this business of funding? Are our debts ascertained? The report of the Secretary of the Treasury proposes that we should not only fund the debts that are ascertained, but the unliquidated and unsettled debts due from the Continent; nor does the plan stop here, it proposes that we should assume the payment of the State debts--debts to us totally unknown. Many of the States, sir, have not yet ascertained what they owe; and if we do not know the amount of what we owe, or are to be indebted, shall we establish funds? Shall we put our hands into the pockets of our constituents, and appropriate moneys for uses we are undetermined of? But more especially shall we do this, when, in doing it, it is indisputably certain, that the encumbrance will more than exceed all the benefits and conveniences? Gentlemen may come forward, perhaps, and tell me, that funding the public debt will increase the circulating medium of the country, by means of its transferable quality; but this is denied by the best informed men. The funding of the debt will occasion enormous taxes for the payment of the interest. These taxes will bear heavily both on agriculture and commerce. It will be charging the active and industrious citizen, who pays his share of the taxes, to pay the indolent and idle creditor who receives them, to be spent and wasted in the course of the year, without any hope of a future reproduction; for the new capital which they acquire must have existed in the country before, and must have been employed, as all capitals are, in maintaining productive labor. Thus the honest, hard-working part of the community will promote the ease and luxury of men of wealth; such a system may benefit large cities, like Philadelphia and New York, but the remote parts of the continent will not feel the invigorating warmth of the American treasury; in the proportion that it benefits one, it will depress another. Mr. SMITH, (of South Carolina.)--The report of the Secretary of the Treasury contains a proposition for the establishment of a sinking fund. I wish the gentleman who brought forward the resolutions under consideration, had included that part of the system in his propositions, as it might have had a tendency to ease the mind of the honorable gentleman from Georgia, and to have shown him that the public debt is not intended to acquire the permanency which he dreads. If our present debt cannot be paid off at once, all that can be done is to provide such funds for its gradual extinction as will morally ensure the object. The gentleman has contended, that public funding is a public injury. I agree with him that funding a debt to a very great amount may be very injurious; yet funding a small debt is beneficial. But whether this is, or is not a fact, is not the object of our present inquiry; we are not in a situation to determine whether we will or will not have a public debt. We have it already, and it appears to me to be a matter of necessity that we should appropriate some funds for the payment of the interest upon it. When we consider the nature of the contract, for what it is we owe the money, and our ability to comply, it follows, of consequence, that we must pay; it follows as close as the shadow follows its substance; or as close as the night follows the day. The only question that can come before us is, the mode of doing it. With respect to that part of our debt which is yet unascertained, I would just beg leave to observe, that it is not our fault that it remains in an unsettled state; neither is it the fault of those who have brought in their accounts and had them liquidated. Hence, it appears to me extremely hard that we should refuse to provide for the payment of those to whom we acknowledge ourselves to be indebted, because there are others whose claims against us are not yet adjusted. The argument, therefore, which relates to this point, as well as that which relates to the Western Territory, will apply ten years hence as well as now, and form an eternal pretext for deferring the business. Mr. FITZSIMONS said, that the circumstances of the foreign debt were such as left no choice in our power, according to the plan proposed by the Secretary of the Treasury; but we have it in our power, and are recommended to make a different arrangement with respect to the domestic debt. I stated, when I introduced the resolutions, that they were intended to bring the Secretary's plan fairly before the committee. This resolution is differently worded on that account; but it may be observed, that the foreign creditors are not here to make a contract with the people of the United States, but the domestic creditors are; and we may hold out a modification to them for their acceptance. With respect to the means by which we shall be enabled to pay the interest and principal of our debt, this resolution has nothing to do, it leaves it to the consideration of the committee; and every gentleman will be perfectly at liberty to propose and support such as he supposes to be most suitable to our abilities. Mr. LIVERMORE.--I do not clearly understand the import of the resolution before the committee. It seems worded rather in a doubtful manner. If it means, that funds ought to be appropriated for the payment of the interest and principal of the domestic debt, as the amount appears on the face of the certificates, I shall be totally against it; whether it pointedly carries that meaning or not, I cannot say. For my part, I consider the foreign and domestic debt to carry with them very material distinctions. The one is not like a debt, while the other has all the true qualities of one. However gentlemen may think on this subject, there is a great difference between the merits of that debt which was lent the United States in real coin, by disinterested persons, not concerned or benefited by the revolution, and at a low rate of interest, and those debts which have been accumulating upon the United States, at the rate of six per cent. interest, and which were not incurred for efficient money lent, but for depreciated paper, or services done at exorbitant rates, or for goods or provisions supplied at more than their real worth, by those who received all the benefits arising from our change of condition. It is within the knowledge of every gentleman, that a very considerable part of our domestic loan-office debt arose in this manner. It is well known that loan-office certificates were issued as a kind of circulating medium, when the United States were in such straits for cash, that they could not raise the necessary supplies in any other way. And it is very well known, that those who sold goods or provisions for this circulating medium, raised their prices from six to ten shillings at least. There is another observation I would beg leave to make. The prices at which our supplies were procured were such, even in hard money, that it might be said specie had depreciated, or, what amounted to the same thing, the commodities were sold for more than their current price; in many cases, half the price would now purchase the same thing. If so, there is as much reason that we should now consider these public securities in a depreciated state, as every holder of them has considered them from that time to this. There was a period at which they were considered of no greater value than three or four shillings in the pound; at this day they are not at more than eight or ten. If this, then, is the case, why should Congress put it upon the same footing as the foreign debt, for which they received a hard dollar for every dollar they engaged to pay? Could any possible wrong be done to those who hold the domestic debt, by estimating it at its current value? I do not speak of those only who have speculated in certificates. With respect to them, I do not see how a difference can be made. By the resolutions of Congress, and from the face of the papers, it appears that they were transferable. It may be said, that there was some part of the domestic debt incurred by loans of hard money. There might be a small part lent in this way, but it was very small indeed, compared with the whole of the domestic debt. It is in the memory of every gentleman, that, before the beginning of the revolution, every State issued paper-money; it answered the exigencies of Government in a considerable degree. The United States issued a currency of the same nature, which answered their purposes, except in some particular cases, and these were effected by loans of certain sums of hard money. If any distinctions are to be made among the domestic creditors, they ought to be made in favor of such only, and that in consequence of the origin of the debt; while the great mass given for the depreciated paper, or provisions sold at double prices, ought to be liquidated at its real value. I cannot think it injustice to reduce the interests on those debts. I should therefore be against passing this resolution, if it carries in it the idea of paying the principal and interest, according to the face of the paper. It is well known, that a large proportion of this domestic debt was incurred for paper-money lent. To be sure Congress acknowledged its value equal to its name; but this was done on a principle of policy, in order to prevent the rapid depreciation which was taking place. But money lent in this depreciated and depreciating state, can hardly be said to be lent from a spirit of patriotism; it was a mere speculation in public securities. They hoped, by putting their money in the loan-office, though in a depreciated state, to receive hard money for it by and by. I flatter myself this prediction will never be effected. The Secretary of the Treasury has offered some alternatives to the creditors, out of which they may make their election; but it seems to me that they, all of them, propose a reduction in the principal and interest, that they may have an annuity of two-thirds, at six per centum, or for the whole sum at four per centum, or they may accept of the other terms. Though this may make a reduction favorable to the public, yet this is not such a reduction as justice, in my opinion, requires; and as the resolution before the committee is intended to make way for the adoption of those principles, I shall vote against it, though I would rather it was passed over for the present, in order to see what is the sense of the House on making a specific provision for the payment of the debt. Mr. PAGE was glad that the question had been asked the mover of the propositions on the table what was the object of the resolution now under consideration, because it was liable to be misunderstood. But now, he presumed, the answer had satisfied every gentleman's mind. The gentleman from New Hampshire was pleased to observe, that foreigners were not interested in the late revolution; that what they did was from such motives as demanded our gratitude; but our citizens were deeply interested, and, I believe, if they were never to get a farthing for what is owing to them for their services, they would be well paid; they have gained what they aimed at; they have secured their liberties and their lives; they will be satisfied that this House has pledged itself to pay to foreigners the generous loans they advanced us in the day of distress. If we were to make distinctions adverse to their interests, we could never expect from them a further favor in the future exigencies of this country. But we may also look with confidence at home for loans and services; on such occasions they will be supplied us on the principles of patriotism; the adoption of the first resolution was therefore politic and just, but the motion of my worthy colleague is not necessary. I feel for my fellow-citizens who have gloriously exerted themselves in the salvation of their country by their services in the field, or the supplies which they yielded, as much as any man can do. I acknowledge the debt of gratitude the community owes to those select citizens, and am willing to pay it as far as we possibly can; but they cannot, they will not complain of the deference we have shown to others, whose particular situation merited such regard at our hands. Mr. SCOTT.--I find myself obliged to consider the Government of the United States in a very different situation, with respect to our foreign and domestic creditors. With respect to the foreign debt, we, the representatives of the United States, are vested with full power, and we are bound in duty to provide for the punctual payment according to the nature of the contract; but when I turn my eyes to the domestic debt, I find myself in a very different situation. I conceive myself a mere arbiter among the individuals of which the Union is composed. A part of the people have a claim upon somebody. I think that claim is against the people at large, and we are not only to provide for the payment of that claim, if just, but to determine whether that claim is just or not. One part of the community applies to us to recover of the other what is due to it; the other says, the debt is too large, it is more than is justly due; you must try and determine between us, and say what part is just, and what is not. This brings clearly into my view the whole subject, as a thing within the power of Congress to new model or modify, if we find that justice demands it; but we have no such authority with respect to the foreign debt. It is very clear to me, that we have the power to administer justice and impartiality among the members of the Union; and this will lead me freely to assert, that we have not only authority, but it is our duty, if, on examination, we find that not more than half the sum that is claimed is justly claimed, to strike off the other half. Mr. BOUDINOT.--I am glad to see gentlemen bring into view principles on which to determine the great question before us; because, when they are once established, they will enable us to proceed with certainty to a decision. If the principles brought forward by the honorable gentleman from Pennsylvania are just, his arguments are of great weight; but if, on consideration, we shall find that the principles are unjust, then I presume, however cogent the system of reasoning he has founded thereon, it will not prevail. He supposes we sit here as judges to determine the different claims of the creditors of the United States. If we are in that predicament, I agree we ought not to proceed but on full evidence and hearing of those claims. But I have never hitherto been led to consider Congress in this light, nor can I now consider them in any such point of view. I consider the Congress, who entered into these engagements, as complete representatives of the United States, and, in their political capacity, authorized, by the articles of Confederation, to contract the debts for which our public faith is pledged; instead of being judges, or arbitrators, on this occasion, we are parties to the contract; nor is our case varied, by the dissolution of the old Confederacy, because the existing constitution has expressly recognized the engagements made under the former. All debts contracted before the adoption of this constitution, shall be as valid against the United States, under this Government, as under the Confederation. Now is the moment to establish the principle; if the constitution admits the borrowing of money, or paying for supplies, to be a contract, we are one of the parties to this contract, and all idea of being arbiters must vanish. We cannot judge in our own cause. The case will now stand clear; we owe a debt, contracted for a valuable consideration. The evidences of our debt are in the hands of our creditors, and we are called upon to discharge them; if we have it in our power, we ought to consider ourselves bound to do it, on every principle of honor, of justice, and of policy; but as we have not the ability to pay the whole off, nor, perhaps, the whole interest, we must endeavor to make such a modification as will enable us to satisfy every one. Not that this modification shall take place without the consent of the creditors; this would be improper and unjust. Each party is as much to be consulted on this occasion, as it was at the time of the first contract. If, then, Congress is bound by the first contract, no gentleman can say we are judges. If we are parties, what would be the decision before a court of justice? The creditor produces my bond, by which I have bound myself to pay a hundred dollars; I cannot gainsay the fact; no man is allowed to plead that he has made a bad bargain, and that at other times, he could have purchased what he got of the creditor at half the sum he was forced to allow him. The inquiry with the judges is not, whether the debtor made a good bargain or not, but whether he did it fairly and voluntarily. We are in the same predicament if we fairly and honestly received the _quid pro quo_; we are bound, as parties to the honest performance of the contract, to discharge the debt; otherwise, what avails the clause in the constitution, declaring all debts contracted, and engagements entered into, before the adoption to be as valid against the present Government as they were under the old Confederation? The debt was _bona fide_ contracted; it was acknowledged by the United States; and the creditor received a certificate as to the evidence of his debt. It is immaterial to us what he did with it. I confess, if the original holder was to come forward, and say that he had been robbed of such evidence, we ought not to pay it until the point was ascertained in a court of justice. Some observations were made to point out a difference between the foreign and domestic debt. I admit there is a distinction, and that in another instance, which has not been mentioned. His Most Christian Majesty, when he first became our important ally, presented Congress with a large sum of money; but this being insufficient to procure us the necessary supply of military stores, a loan was made us from the royal coffers of France. But this also being inadequate, we endeavored to obtain further aid from foreigners. The credit of the United States was so much impaired, as to hold out but little encouragement to individuals to trust us with their money. The French King added another mark of his distinguished attention: he guarantied the loan, and the money was obtained--obtained of the widow and fatherless; of persons whose all depended upon a punctual payment of the interest. On this point I could refer you to letters from our commissioners in Europe, who beg that we may not put them on this business, unless we are certain that the United States will carefully provide for the payment of the interest; because, in case of failure, hundreds must perish for want. This is another motive why we should attend to the performance of our contracts; and I will repeat again, it is what we are called upon to do upon every principle of honor, justice, and policy. Mr. LAWRENCE.--The observations of the honorable gentleman from Pennsylvania, (Mr. SCOTT,) if I rightly understand them, apply to the principal, and not the interest of the domestic debt. He imagines it to be too large; that is, that the individual who performed services, or rendered supplies during the late war, received evidences of rather too great nominal value; and that, at this period of time, it is necessary to investigate every particular claim, and judge whether the balances are respectively due or not. The gentleman has distinguished between the foreign and domestic creditor on this point; he supposes the foreign debt ought not to be re-examined, because the holders of it are unconnected with our Government. They lent us money, and we are bound according to the precise terms of the contract. Here I agree with him; but that there should be a solid distinction in justice between the foreign and domestic creditor is to me a singular thing. It was observed, that the citizens of America would be well paid for their loans, supplies, and services, by the benefits and profits arising to them by the revolution; but are we to sacrifice the claims of individuals of the community for the advantage of the whole? Who are benefited by the revolution? Every citizen. Then every citizen is bound to contribute his equal part of the expenses attending the procurement. Should those of our citizens who furnished the supplies, or loaned their money, be the only class who are injured? Every citizen is bound to pay according to his ability, because every one has participated in the benefits: then the only question to ask is, whether this discrimination should be made to ascertain or new proportion the debt? This will lead me to inquire whether it is proper for us, after the resolution we passed at the last session, after the resolution we have just now passed, to scale the public debt anew? Shall we say that the evidence carries on its face fraud and deception? I contend we shall not. Why shall we liquidate a debt which is established upon a complete and final settlement? From the face of the evidences arises the demand, and that is the demand we are to make provision for. Shall we go to our officers and soldiers who served during the late war, individually, and say that the balance struck to be due to them is an imposition on the public, when the Government itself has determined that they were entitled to such particular reward? If, at the time those securities were given to them, Government had paid them in money, would any gentleman now contend that their accounts ought to be reliquidated, and every individual called upon to refund a part of what he acquired in conformity to the laws of this country? Certainly no gentleman would contend for such a measure. How is the nature of the case altered from the circumstances of our having been so unfortunate as to pay those worthy men with a certificate in lieu of the money which was due? The nature of the case, I conceive, is perfectly the same; and we are in duty bound to make a full compensation. The face of the paper expresses what that is, and it is to be our guide; the demand surely is not to be lessened. Mr. JACKSON said there were, most surely, principles on which to ground a discrimination betwixt a foreign and domestic creditor; if there was no other, there was this, that the domestic creditors are those that are bound to pay the foreign creditors their demand; they ought, consequently, to do justice to others, by a punctual payment, before they require a discharge of their own claims. Mr. AMES did not conceive it material to inquire whether there be an equal obligation on the people of the United States to pay their foreign and domestic creditors, when they meant to pay both; but if it is intended to reduce the principal of either, it will lead us into a discussion of the principles on which such a measure ought to be founded. The honorable gentleman from Pennsylvania (Mr. SCOTT) probably intends by the amendment to have a reduction of the debt; I have, said he, so much respect for the good sense and upright intentions of that honorable gentleman, that I will not impute to him unworthy motives; nor do I believe that he governs his conduct in private life by maxims which I suspect to be contained in the amendment now before us. I would not be understood, by any means, to convey an improper reflection upon the opinions of any one. The science of finance is new in America; a gentleman may therefore propose the worst of measures with the best intentions. What, let me inquire, will be the pernicious consequences resulting from the establishment of this doctrine? Will it not be subversive of every principle on which public contracts are founded? The evidences of the debt, possessed by the creditors of the United States, cannot, in reason, justice, or policy, be considered in any other light than as public bonds, for the redemption and payment of which the property and labor of the whole people are pledged. The only just idea is, that when the public contract a debt with an individual, that it becomes personified, and that with respect to this contract, the powers of Government shall never legislate. If this was not the case, it would destroy the effect it was intended to produce; no individual would be found willing to trust the Government, if he supposed the Government had the inclination and power, by virtue of a mere major vote, to set aside the terms of the engagement. If the public in such a case is, as I have said, personified, what conceivable difference is there, except in favor of the creditor, between the public and an individual in the case? If, then, the public contract is a solemn obligation upon us, we are bound to its true and faithful performance. What is the object for which men enter into society, but to secure their lives and property? What is the usual means of acquiring property between man and man? The best right to property is acquired by the consent of the last owner. If, then, an individual is possessed of property, in consequence of this right, how can Government, founded on this social compact, pretend to exercise the right of divesting a man of that object which induced him to combine himself with the society? every gentleman may determine this question by his own feelings. Shall it be said that this Government, evidently established for the purpose of securing property, that, in its first act, it divested its citizens of seventy millions of money, which is justly due to the individuals who have contracted with Government! I believe those gentlemen, who are apprehensive for the liberties and safety of their fellow-citizens, under the efficiency of the present constitution, will find real cause of alarm from the establishment of the present doctrine. I have heard, that in the East Indies the stock of the labor and property of the empire is the property of the prince; that it is held at his will and pleasure; but this is a slavish doctrine, which I hope we are not prepared to adopt here. But I will not go further into a consideration of the idea of discrimination. I will ask, though, is this country ever to be in a settled and quiet state? Must every transaction that took place, during the course of the last war, be ripped up? Shall we never have done with the settlement and liquidation of our accounts? Mr. LIVERMORE.--The arguments advanced by the gentlemen from Massachusetts and New York prove too much, and therefore prove nothing. That the late Congress had, at all times, from their first institution, the power to contract debts, for the benefit of the United States, cannot be denied; and that we are authorized to pay such debts, is equally certain. But this by no means contravenes the opinion of those gentlemen who think, that the whole may be properly considered and discharged at the rate which justice requires; for the same argument which is urged for the payment of the public securities at their nominal value, might be urged in favor of paying off the Continental debts of credit, according to the sums expressed on the face of them. They were issued with as much confidence, and were received with as much reliance on the public faith, as any species of securities whatever; yet, it seems to be given up on all hands, that the owners of the old Continental paper bills ought not to be paid according to their nominal value. Perhaps it may be said, on comparing them with the loan-office certificates, that the United States had not the benefit of that money; but had they not the value of it? It will be answered, that when the money was first issued, Congress had nearly the value for it; but afterwards the money greatly depreciated, and they had not the full value for it, yet the obligation to pay it is as explicit as words can make it. No advocate will be found for making all that money good. It has been thought proper, and it is just, that it should be reduced from its nominal value; if it is reduced on a scale of one hundred for one, the holders of it, I dare say, would cheerfully receive that sum. If the United States then had value for it, and if they had not value for the certificates, who can doubt of the justice of reliquidating, and duly ascertaining the public debt? All I contend for is this, that the present Government pay the debts of the United States; but as the domestic part of the debt has been contracted in depreciated notes, that less interest should be paid upon it than six per cent. Six per cent. was the usual interest upon the certificates when they were issued by Congress; but if the possessor has received no part of this six per cent. until this time, that now the principal and interest be consolidated into one sum, hereafter to bear an interest of three or four per cent.; then those citizens, who now stand as creditors of the Union, will find that part of their property has been the most productive of any, much more productive than the property of the citizens of the United States has generally been. Those who lent their money to individuals before and during the late war, generally lost or suffered by the depreciation some three-quarters of the capital; nay, some thirty-nine fortieths. But is this the case of the domestic creditor of the United States? No! he will preserve his property, through the chaos of the revolution, and be put now in a more eligible situation than he was at the time when he loaned the money. The capital sum which he lent is now increased, and very rapidly increased, for six per cent. is a very large interest. He will now receive 160 dollars for his 100, and putting that into the funds, at three or four per cent. he will find it more productive than any other method in which he could employ his money; for, I contend, that neither improved, nor unimproved lands, will give an interest near half of what the public creditor will receive. People who have held real property have sunk, with the taxes, and other losses, the greatest part of it; but the public creditor has let his run through the confusion of the revolution, and nevertheless gets it returned to him safe; and, so far from being impaired, that he has prodigiously accumulated, not only in a manner superior to the property of his fellow-citizens, but superior to the foreigner who lent his money at four per cent. Justice and equity require, on the behalf of the community, that these people be content with reasonable profit. They ought not, therefore, to receive, on a funded debt, so much as six per cent.; whether three or four, or something between three and four, would be a proper sum, I shall not pretend to determine. But I consider it a proper question for this committee to consider, in justice to those who are to pay, as well as to those who are to receive; nor do I believe the domestic creditors would be dissatisfied with it, provided they were sure of receiving this annual interest; for their debts, on such a footing, would be better to them than if they were established on an extravagant plan that could never be effected, but which would be likely to throw the nation into confusion. Every body has suffered more or less by the depreciation, but the public creditors very little, in regard to that part of their property which they had deposited in the hands of Government: it is true, that it has slept; but it is now waked up to some purpose. Mr. SCOTT.--A great deal has been said on a great principle that must be attended to in some stage of this business; but gentlemen have been led into a more extensive discussion on the doctrine of discrimination than I had any idea of when I proposed the amendment. It has been urged by some of the gentlemen, that however just my principle is, that the Legislature is in the quality of an arbitrator, yet we cannot adopt the amendment; others again have said, that the debt is a contract between the Government and the individual, and that we being parties we cannot be judges; for it is contrary to the principles of the law, that we should be judges in our own cause. If, in national transactions like this, interesting to our citizens only, the Government is to be supposed one party, and the individual the other party, I would ask the gentleman who is the judge? Can two parties exist in a well organized Government to dispute about property, and have no judge? The very idea must induce the gentleman to abandon his ground. It has been said, as the foundation of an opinion, that there is a great similitude between a certificate and a bond that is brought into court to demand payment upon; that no opposition can be made; that no plea can be entered; but I would wish to ask the gentleman who made the remark, as a professional man, whether the want of consideration would not be a good plea? In Courts of Equity, relief can be given against _prima facie_ evidence. Mr. BOUDINOT.--I am a friend to the discussion of every principle on which the great business before us may be supposed to turn, because I have a great desire that they should be settled on full information, that the public, as well as ourselves, may be satisfied with their propriety. This leads me again to notice the arguments which have been urged in favor of considering this body as judges or arbitrators between the public and the individuals who have claims upon the public. It must appear to the satisfaction of every unprejudiced mind, from the resolutions of the late Congress, that they acknowledge themselves a party on behalf of the public, to every engagement they entered into for services, supplies, or moneys loaned. If then it is admitted that the late Congress were parties to the contract, we must agree that our situation is precisely the same, because we stand in their shoes; and in my former argument I urged, if we are parties we cannot be judges. Mr. JACKSON.--If there is no part of the debt of the United States unliquidated, besides the two millions which the gentleman alludes to, yet there is a very considerable part of what is in contemplation to fund, as Continental debt, not at present ascertained. I mean the State debts. The Secretary himself had no evidence before him, from which he could make a probable guess of the amount; if these are to be assumed by the General Government, I presume the General Government ought to be at liberty duly to ascertain them; and, therefore, the amendment proposed by the honorable gentleman from Pennsylvania ought to be admitted. The honorable gentlemen who are in opposition, contend that no sort of discrimination ought to take place; yet from what they have let fall, on this occasion, I am led to believe that they favor that part of the report of the Secretary which makes a discrimination, in fact, equal to a loss of one-third of the principal. What will hold good in one case ought to hold good in another, and a discrimination might take place upon the same principles, between those to whom the Government was originally indebted, and who have never received satisfaction therefor, and those who had nothing to do with the Government in the first transaction; but have merely speculated, and purchased up the evidence of an original debt. Some gentlemen think, that the claims of this latter class merit a greater degree of attention, because by their actions, they seem to have evinced a greater degree of confidence in the Government than those who sold them. But, sir, these men have had more information, they have been at the seat of Government, and knew what was in contemplation before citizens of other parts of the Union could be acquainted with it. There has been no kind of proportion of knowledge between the two classes--to use the expression of a British Minister, the reciprocity has been all on one side. The people in this city are informed of all the motions of Government; they have sent out their money, in swift sailing vessels, to purchase up the property of uninformed citizens in the remote parts of the Union. Were those citizens acquainted with our present deliberations, and assured of the intention of Congress to provide for their just demands, they would be on an equal footing; they would not incline to throw away their property for considerations totally inadequate. Such attempts at fraud would justify the Government in interfering in the transactions between individuals, without a breach of the public faith; but this, sir, is not the object of the present motion, it only goes so far as to ascertain the amount of the debt, before we make provision for the payment; and this appears to me to be proper upon every principle of justice and discretion. Mr. BURKE wished the question postponed till to-morrow, as it was a subject of such high importance. He moved the committee to rise; whereupon the committee rose, and reported progress. WEDNESDAY, February 10. _Public Credit._ The House again went into a Committee of the Whole, Mr. BALDWIN in the chair, on the report of the Secretary of the Treasury. Mr. SCOTT'S amendment being still under consideration. Mr. SCOTT.--Some time was spent yesterday in the consideration of this subject; in my opinion, that time was not ill spent, nor would two or three days more be ill spent in discussing the question, for it involves in it the whole doctrine of discrimination and liquidation. If these two great points are once settled, the way will be clear and open before us to proceed to the discussion of the report: for if the principles of the report are good, I believe the plan itself is good. I believe, upon the principles which it holds forth, that it is wisely and judiciously drawn out, and does great honor to the officer who framed it. But it is incumbent on us to examine its principles before we adopt it; if they do not consist with equity and justice among the several inhabitants of the Union, they must be rejected. Now I doubt whether they consist with that equity and justice; I think there are others on this floor who have their doubts also. I wish, therefore, that we should coolly examine those principles, consult our judgment and understanding, and when we have collected all the information we can get from each other, we may determine; and when we have determined this, and the two grand points I have mentioned, our business will be easy. In support of the principles held out in the report, it is said that a solemn contract is entered into that cannot be violated; that the debt is ascertained and cannot be extinguished, but by the absolute payment of what it acknowledged to be due. Now, I doubt whether the necessary concomitants of a contract to the amount mentioned on the face of the paper, really accompanies the public securities. Let us revert back to the time that this contract was entered into. At the close of the war, at the commencement of issuing final settlements, there was a demand against the United States for real and essential services rendered; the claimants came forward, and asked something for their demand. Congress having no money to give them, offered something; what? A certificate to a certain nominal amount; nay more, of a certain known value; the nominal amount was twenty shillings, the certain known value was two and sixpence. Did the soldier accept of this offer? Yes. On what principle did he accept it? He knew it was putting the capstone on the building which he had erected by his labor and cemented with his blood. I have done you services, said he, to the amount of twenty shillings, but you are poor and unable to pay me; I will accept now of your two and sixpence, and give you a discharge. Thus, the soldier who had, through blood and slaughter, established the liberties of his country, crowned the whole by the sacrifice of pecuniary emoluments. His consent was given to the contract, and he received two and sixpence in the pound. Now, if there is any other contract existing like this, I cannot see it. The soldier never received it, nor the officer who handed it out, never believed it to be worth more than two and sixpence in the pound. It was like compounding a debt by the consent of the creditor, and there an equal liquidation ought to take place. If this reasoning is right, we know the value at once of our paper currency; if it is not right, I would wish to know upon what principle of rationality, a rate can be established for the value of our certificates. Mr. BOUDINOT.--I am convinced that the principles laid down by the gentleman from Pennsylvania, if true, ought to effect the final determination of this question; and if I was satisfied with them, I should clearly vote with him. If I was convinced that the certificates, at the time they were given out, were worth no more than 2_s._ 6_d._ in the pound, and that the creditors received them at that price, in full discharge of their demands, I should be very loath to raise them to so great a value; I would treat them precisely the same as Continental money. I should think that the public did complete justice by complying with the terms of their contract; while this is a matter of dispute we can never agree in our determination. But if I can show that this is not the case, that he has not looked into the origin of this debt, so as to be well ascertained of the fact, I hope he will give up his opinion, and join with me in the conclusion. The debt of the United States is of four kinds; first, paper money; second, money lent; third, the pay to the army, including commutation, and the allowance for depreciation; and fourth, certificates, or evidences of the debts due from the United States to individuals, for supplies furnished, or services rendered at different periods of the last war. As to the bills of credit, I mentioned yesterday that they stand upon a different footing from the rest; because it was one of the parties who ascertained their depreciation, contrary to the opinion of the other, who had a desire of keeping them up to their nominal value. The money loaned to the United States, is a debt which we are bound to pay, on every principle of honor and justice; nor can it be said that the certificate given to the person who loaned the money, was given as a payment in discharge of the debt. With respect to the army, including commutation, I shall beg leave to read two or three resolutions of Congress, to show that Congress had a different idea of the certificates they gave to the officers and soldiers, in evidence of the balance of their account, which is still due. When they were first issued to the soldiers, Congress guarded them from being transferable; but as the soldiers could get nothing for them in that form, upon representation, Congress passed another resolution, by which they were made transferable, in order that the soldier might avail himself of the acknowledgment of Congress in his favor; (the resolutions referred to were in May, 1783, April, 1784, and June, 1784.) This recurrence to the resolutions of Congress, under which the evidences of the debt were issued, sufficiently explodes a supposition, that they were understood to be worth no more than 2_s._ 6_d._ in the pound, at the time they were issued and received. From the personal knowledge I have of the transactions of that time, I can venture to say, that no idea of payment was ever entertained. They were, in fact, and were so considered, evidences of the liquidated and specific sums due to the creditors of the United States. The step which Congress took for the benefit of the army, in making their certificates transferable, so far from accommodating them, would have proved a real injury. If the assignee had supposed himself to stand in a less eligible situation than the assignor, he never would have been induced to have given him the price which he did. If the soldier had received a certificate of twenty shillings, as only 2_s._ 6_d._ nobody would have inclined to have given him 2_s._ 6_d._ for it, because he could never expect to obtain a repayment of a greater sum, even in such money as Congress should find convenient; upon every principle of assignation of debts or contracts, such an idea ought to be reprobated. Mr. SEDGWICK.--I will express my idea on the point which the gentleman has made an inquiry respecting, in a few words. I said, that I conceived a delay of this business would endanger the peace of the Union by diminishing the energy of the Government, without which this constitution would be of no value. These are considerations which must appear weighty and important, if justly considered by the committee. A great and respectable body of our citizens are creditors of the United States. There are a variety of opinions prevailing respecting their claims, with respect to funding, discrimination, and interest. This diversity of opinion may probably irritate and produce heats and animosities, which may terminate in forming factions among the people. The State debts may produce a difference between the General and particular Governments. If the matter is taken up as the business of a party, one may be pitted against the other, until, in the end, they disturb the public tranquillity, or sacrifice the general welfare to opposition and party spirit. Besides this, the reputation, the credit of the Government is at stake; the public expectation is alive to all the measures of Government at the present moment. They expect that justice and equity will be administered as far as the abilities of our country extend; it lies with the Legislature to realize this expectation. If Congress pursue the present inquiry, and come to a determination without delay, the public sentiment will be brought to a point, and a general acquiescence may be expected; but if it is postponed to a future session, such may be the effect of faction and disappointment during the recess, that the probability is, that no one party will comprise a sufficient number to comprehend the majority of the whole. Mr. JACKSON.--Do not gentlemen think there is some danger on the other side? Will there not be ground of uneasiness when the soldier and the meritorious citizen are called upon to pay the speculator more than ten times the amount they ever received from him for their securities? I believe, Mr. Chairman, there is more just reason of alarm on this than on the other side of the question. A gentleman from Pennsylvania (Mr. HARTLEY) has noticed my arguments of yesterday, respecting a funding system. I beg leave to make a few observations in answer to him. He has said, that a funded debt is of great advantage to a nation, and has adduced the situation of England as a proof, founded on experience. But England is a solitary example, and the force of that example dwindles into nothing, if we examine into the real cause of her seeming affluence. She does not owe much of respectability to her national debt; she owes the most of it, at present, to the troubles of other countries, and when those have subsided, the bubble of her credit may blow up, as did the South Sea project, for Government stock can never be considered as cash. The stock employed in agriculture, commerce, and manufactures may, by great prospects of advantage, be diverted into the hands of brokers, for the purpose of speculating further in the funds; but no real addition will be made to the means of productive industry, nor was any thing of this kind contemplated at the time funding was first introduced into England. We learn from _Blackstone_, that the reason for establishing a national debt, was in order to support a system of foreign politics, and to establish the new succession at the revolution; because it was deemed expedient to create a new interest, called the moneyed interest, in favor of the Prince of Orange, in opposition to the landed interest, which was supposed to be generally in favor of the king, who had abdicated the throne. I hope there is no such reason existing here; our Government, I trust, is firmly established without the assistance of stock-jobbers. We ought to reign universally in the hearts of our fellow-citizens, on account of the salutary tendency of our measures to promote the general welfare, and not depend upon the support of a party, who have no other cause to esteem us but because we realize their golden dreams of unlooked-for success. Mr. SMITH, (of South Carolina.)--If we were about to contract debts for the purpose of funding them, the observations of the gentleman from Georgia would apply; but we have already contracted them, and the only question is, shall we fund or pay? We must do one or the other. With respect to the remark of Blackstone, he is writing of an enormous public debt when he mentions it as injurious, because he expressly says, that "a certain proportion of debt seems to be highly useful to a trading people; but what proportion that is it is not for me to determine." To be sure he adds afterwards, "that the present magnitude of our national encumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences." And here I agree with him: but our public debt is not of such enormous magnitude as to counterbalance the good effects of throwing out such a quantity of a stable paper as will answer all the purposes of a circulating medium. Mr. TUCKER.--I very much applaud the gentleman who made the motion now before the committee, because he has boldly come forward to combat an opinion so generally received in this place, that many thought it could not be controverted by any man possessed of common honesty; and because I am persuaded, that he has done it with an honorable intention of substituting real and substantial justice, in the place of that which he deems to be only the name and the shadow. Although it is probable I differ with the gentleman who moved the amendment, I am inclined to think a discrimination of some kind is equitable and necessary. I believe it may be fairly said, that there are three classes of domestic creditors. The first, those who hold the Continental bills of credit, which have been long out of circulation. Second, those who hold certificates that were given for services or supplies, in their own names. And, third, those who hold certificates by purchase. I would wish to consider the obligation to each of these three classes, and whether, in equity, some kind of discrimination may not be made. On a strict and impartial examination, I am inclined to believe they will not appear to be the same. I will now turn to the examination of the first; namely, the holders of the Continental bills of credit. The Secretary of the Treasury has reported in favor of some degree of provision being made for them. But, sir, what is the situation of the people who hold these bills? If I recollect rightly, the face of the bills declares, that the bearer shall be entitled to receive so many Spanish milled dollars as is therein expressed. When these bills were issued, their real value was equal to their nominal value; no person refused, or wished to refuse, them as such; but, in a short time, too large a quantity were issued, and they began to depreciate. Congress then recommended to the several States to pass tender-laws for the support of their credit. This was done by all the States; and they continued, in some of them, to pass as specie, under those laws, when they were depreciated twenty, thirty, and forty for one. Those people, who received them in this state, suffered a very great loss by an act of the Government, and many were ruined by the measure. When these bills had thus depreciated, Congress passed a resolution, calling them in at forty for one. This ordinance of Congress immediately reduced the claims of the first class of creditors by an arbitrary act of power. I do not pretend to say that the measure was unnecessary, but it was rigorous to deprive them of 39-40ths of their claims. Perhaps we cannot return to all the transactions of that time, because it would involve the Government in a thousand difficulties, and produce, perhaps, greater evils than it would remedy. But there remains a claim upon our justice to pay the holders one dollar, at least, for forty. By the act of Congress, which I alluded to before, these bills were thrown out of circulation, and have ever since lain in the hands of individuals. Now, it appears to me, that, in equity, we ought to make all the reparation in our power. Surely, then, we ought to allow interest on the principal from the time the bills were scaled, and forced out of circulation. These creditors, I take it, have a strong claim upon us; because the Government has materially injured them, and the least satisfaction we can give them, is to put this part of the debt on the best footing we can; if we cannot do complete justice, let us approximate towards it as far as it is in our power. The second class of our creditors have obligations that are strong. It has been said, and generally passed current as an incontrovertible opinion, that those who transferred their certificates have conferred to the purchaser every claim they had upon the public. I mean, sir, to deny this assertion. There is a claim which they could not transfer, that is, a claim in equity;, they were entitled to the principal sum when they presented their accounts to the United States, and we ought, in justice, to have paid it at that time; but, perhaps, from our inability to do this, we were obliged to force on them a certificate of the balance, with a promise to pay them an annual interest thereon; but a promise to pay the interest does not exonerate us from paying the principal, as soon as we have it in our power. Now, this is a claim which the original creditor, who parted with the evidence of his debt, did not transfer to the person to whom he sold it. The United States are under no contract with the purchaser who bought a loaned debt, to pay him any thing more than what the paper specifies, that is, to pay him the interest from year to year, but not the principal, until we find it convenient. Then, with respect to the third class, if the residue of the revenue is insufficient to pay them the interest on their whole principal, I would give them certificates for such part as we are able to provide for the payment of the interest upon, at six per cent., to be paid in the same manner with the others. And I would give them other certificates for the remainder, on a like interest of six per cent., the payment whereof should commence at a fixed period, say three, four, or five years, as it might be found that the increasing resources of our country would, enable us to do; but I would undertake nothing now beyond our present ability. THURSDAY, February 11. [Mr. FITZSIMONS presented the address of the yearly (Quaker) meeting of Pennsylvania, New Jersey, Delaware, and the Western parts of Maryland and Virginia, held at Philadelphia, against the continuance of the African slave trade, and praying Congress to remove that reproach from the land, and Mr. LAWRENCE presented an Address to the same effect from the Society of Friends in New York.] Mr. HARTLEY moved to refer the Address of the annual assembly of Friends, held at Philadelphia, to a committee; he thought it a mark of respect due to so numerous and respectable a part of the community. Mr. WHITE seconded the motion. Mr. SMITH (of S. C.)--However respectable the petitioners may be, I hope gentlemen will consider that others equally respectable are opposed to the object which is aimed at, and are entitled to an opportunity of being heard before the question is determined. I flatter myself gentlemen will not press the point of commitment to-day, it being contrary to our usual mode of procedure. Mr. FITZSIMONS.--If we were now to determine the final question, the observation of the gentleman from South Carolina would apply; but, sir, the present question does not touch upon the merits of the case; it is merely to refer the memorial to a committee, to consider what is proper to be done; gentlemen, therefore, who do not mean to oppose the commitment to-morrow, may as well agree to it to-day, because it will tend to save the time of the House. Mr. JACKSON wished to know why the second reading was to be contended for to-day, when it was diverting the attention of the members from the great object that was before the Committee of the Whole? Is it because the feelings of the Friends will be hurt to have their affair conducted in the usual course of business? Gentlemen, who advocate the second reading to-day, should respect the feelings of the members who represent that part of the Union which is principally affected by the measure. I believe, sir, that the latter class consists of as useful and as good citizens as the petitioners, men equally friends to the revolution, and equally susceptible of the refined sensations of humanity and benevolence. Why, then, should such particular attention be paid to them, for bringing forward a business of questionable policy? If Congress are disposed to interfere in the importation of slaves, they can take the subject up without advisers, because the constitution expressly mentions all the power they can exercise on the subject. Mr. SHERMAN suggested the idea of referring it to a committee, to consist of a member from each State, because several States had already made some regulations on this subject. The sooner the subject was taken up he thought it would be the better. Mr. PARKER.--I hope, Mr. Speaker, the petition of these respectable people will be attended to with all the readiness the importance of its object demands; and I cannot help expressing the pleasure I feel in finding so considerable a part of the community attending to matters of such momentous concern to the future prosperity and happiness of the people of America. I think it my duty, as a citizen of the Union, to espouse their cause; and it is incumbent upon every member of this House to sift the subject well, and ascertain what can be done to restrain a practice so nefarious. The constitution has authorized us to levy a tax upon the importation of such persons as the States shall authorize to be admitted. I would willingly go to that extent; and if any thing further can be devised to discountenance the trade, consistent with the terms of the constitution, I shall cheerfully give it my assent and support. Mr. MADISON.--The gentleman from Pennsylvania (Mr. FITZSIMONS) has put this question on its proper ground; if gentlemen do not mean to oppose the commitment to-morrow, they may as well acquiesce in it to-day; and, I apprehend, gentlemen need not be alarmed at any measure it is likely Congress will take; because they will recollect, that the constitution secures to the individual States the right of admitting, if they think proper, the importation of slaves into their own territory, for eighteen years yet unexpired; subject, however, to a tax, if Congress are disposed to impose it, of not more than ten dollars on each person. The petition, if I mistake not, speaks of artifices used by self-interested persons to carry on this trade; and the petition from New York states a case that may require the consideration of Congress. If any thing is within the Federal authority to restrain such violation of the rights of nations and of mankind, as is supposed to be practised in some parts of the United States, it will certainly tend to the interest and honor of the community to attempt a remedy, and is a proper subject for our discussion. It may be, that foreigners take the advantage of the liberty afforded them by the American trade, to employ our shipping in the slave trade between Africa and the West Indies, when they are restrained from employing their own by restrictive laws of their nation. If this is the case, is there any person of humanity that would not wish to prevent them? Another consideration why we should commit the petition is, that we may give no ground of alarm by a serious opposition, as if we were about to take measures that were unconstitutional. Mr. _Stone_ feared that if Congress took any measures indicative of an intention to interfere with the kind of property alluded to, it would sink it in value very considerably, and might be injurious to a great number of the citizens, particularly in the Southern States. He thought the subject was of general concern, and that the petitioners had no more right to interfere with it than any other members of the community. It was an unfortunate circumstance, that it was the disposition of religious sects to imagine they understood the rights of human nature better than all the world besides; and that they would, in consequence, be meddling with concerns in which they had nothing to do. As the petition relates to a subject of a general nature, it ought to lie on the table as information. He would never consent to refer petitions, unless the petitioners were exclusively interested. Suppose there was a petition to come before us from a society, praying us to be honest in our transactions, or that we should administer the constitution according to its intent, what would you do with a petition of this kind? Certainly it would remain on your table. He would, however, not have it supposed that the people had not a right to advise and give their opinion upon public measures; but he would not be influenced by that advice or opinion to take up a subject sooner than the convenience of other business would admit. Unless he changed his sentiments, he would oppose the commitment. Mr. BURKE thought gentlemen were paying attention to what did not deserve it. The men in the gallery had come here to meddle in a business with which they have nothing to do; they were volunteering in the cause of others, who neither expected nor desired it. He had a respect for the body of Quakers, but, nevertheless, he did not believe they had more virtue or religion than other people, nor perhaps so much, if they were examined to the bottom, notwithstanding their outward pretences. If their petition is to be noticed, Congress ought to wait till counter applications were made, and then they might have the subject more fairly before them. The rights of the Southern States ought not to be threatened, and their property endangered, to please people who would be unaffected by the consequences. Mr. HARTLEY thought the memorialists did not deserve to be aspersed for their conduct, if influenced by motives of benignity. They solicited the Legislature of the Union, to prevent, as far as is in their power, the increase of a licentious traffic; nor do they merit censure, because their behavior has the appearance of more morality than other people. Congress ought not to refuse to hear the applications of their fellow-citizens, while those applications contain nothing unconstitutional or offensive. What is the object of the address before us? It is intended to bring before this House a subject of great importance to the cause of humanity; there are certain facts to be inquired into, and the memorialists are ready to give all the information in their power; they are waiting, at a great distance from their homes, and wish to return; if, then, it will be proper to commit the petition to-morrow, it will be equally proper to-day, for it is conformable to our practice; besides, it will tend to their conveniency. Mr. LAWRENCE.--The gentleman from South Carolina says, the petitioners are of a society not known in the laws or constitution. Sir, in all our acts, as well as in the constitution, we have noticed this society; or, why is it that we admit them to affirm in cases where others are called upon to swear? If we pay this attention to them, in one instance, what good reason is there for contemning them in another? I think the gentleman from Maryland (Mr. STONE) carries his apprehensions too far, when he fears that negro property will fall in value, by the suppression of the slave trade; not that I suppose it immediately in the power of Congress to abolish a traffic which is a disgrace to human nature; but it appears to me, that, if the importation was crushed, the value of a slave would be increased instead of diminished; however, considerations of this kind have nothing to do with the present question. Gentlemen may acquiesce in the commitment of the memorial, without pledging themselves to support its object. Mr. JACKSON.--I differ much in opinion with the gentleman last up. I apprehend, if through the interference of the General Government the slave trade was abolished, it would evince to the people a disposition towards a total emancipation, and they would hold their property in jeopardy. Any extraordinary attention of Congress to this petition may have, in some degree, a similar effect. I would beg to ask those, then, who are desirous of freeing the negroes, if they have funds sufficient to pay for them? If they have, they may come forward on that business with some propriety; but, if they have not, they should keep themselves quiet, and not interfere with a business in which they are not interested. They may as well come forward and solicit Congress to interdict the West India trade, because it is injurious to the morals of mankind; from thence we import rum, which has a debasing influence upon the consumer. But, sir, is the whole morality of the United States confined to the Quakers? Are they the only people whose feelings are to be consulted on this occasion? Is it to them we owe our present happiness? Was it they who formed the constitution? Did they, by their arms or contributions, establish our independence? I believe they were generally opposed to that measure: why, then, on their application, should we injure men who, at the risk of their lives and fortunes, secured to the community their liberty and property? If Congress pay any uncommon degree of attention to their petition, it will furnish just ground of alarm to the Southern States. But why do these men set themselves up in such a particular manner against slavery? Do they understand the rights of mankind, and the disposition of Providence, better than others? If they were to consult that book, which claims our regard, they will find that slavery is not only allowed but commended. Their Saviour, who possessed more benevolence and commiseration than they pretend to, has allowed of it: and if they fully examine the subject, they will find that slavery has been no novel doctrine since the days of Cain; but be these things as they may, I hope the House will order the petition to lie on the table, in order to prevent an alarm to our Southern brethren. Mr. SEDGWICK.--If it was a serious question whether the memorial should be committed or not, I would not urge it at this time; but that cannot be a question for a moment, if we consider our relative situation with the people. A number of men, who are certainly very respectable, and of whom, as a society, it may be said with truth, that they conform their moral conduct to their religious tenets, as much as any people in the whole community, come forward and tell you, that you may effect two objects by the exercise of a constitutional authority, which will give great satisfaction. On the one hand, you may acquire revenue, and on the other, restrain a practice productive of great evil. Now, setting aside the religious motives which influence their application, have they not a right as citizens to give their opinion of public measures? For my part, I do not apprehend that any State, or any considerable number of individuals in any State, will be seriously alarmed at the commitment of the petition, from a fear that Congress intend to exercise an unconstitutional authority, in order to violate their rights. I believe there is not a wish of the kind entertained by any member of this body; how can gentlemen hesitate, then, to pay that respect to a memorial which it is entitled to, according to the ordinary mode of procedure in business? Why shall we defer doing that till to-morrow, which we can do to-day; for the result, I apprehend, will be the same in either case. Mr. SMITH, (of South Carolina.)--The question, I apprehend, is whether we will take the petition up for a second reading, and not whether it shall be committed? Now, I oppose this, because it is contrary to our usual practice, and does not allow gentlemen time to consider of the merits of the prayer. Perhaps some gentlemen may think it improper to commit it to so large a committee as has been mentioned; a variety of causes may be supposed to show that such a hasty decision is improper; perhaps the prayer of it is improper. If I understood it right on its first reading, though to be sure I did not comprehend perfectly all that the petition contained, it prays that we should take measures for the abolition of the slave trade. This is desiring an unconstitutional act, because the constitution secures that trade to the States, independent of Congressional restrictions, for a term of twenty-one years. If, therefore, it prays for a violation of constitutional rights, it ought to be rejected as an attempt upon the virtue and patriotism of the House. Mr. BOUDINOT.--It has been said, that the Quakers have no right to interfere in this business. I am surprised to hear this doctrine advanced, after it has been so lately contended and settled, that the people have a right to assemble and petition for redress of grievances. It is not because the petition comes from the society of Quakers that I am in favor of the commitment, but because it comes from citizens of the United States who are equally concerned in the welfare and happiness of their country with others. There certainly is no foundation for the apprehensions which seem to prevail in gentlemen's minds. If the petitioners were so uninformed as to suppose that Congress could be guilty of a violation of the constitution, yet I trust we know our duty better than to be led astray by an application from any man or set of men whatever. I do not consider the merits of the main question to be before us; it will be time enough to give our opinions upon that when the committee have reported. If it is in our power, by recommendation, or any other way, to put a stop to the slave trade in America, I do not doubt of its policy; but how far the constitution will authorize us to attempt to depress it, will be a question well worthy of our consideration. Mr. SHERMAN observed, that the petitioners from New York stated, that they had applied to the Legislature of that State to prohibit certain practices which they conceived to be improper, and which tended to injure the well-being of the community; that the Legislature had considered the application, but had applied no remedy, because they supposed that power was exclusively vested in the General Government under the Constitution of the United States; it would, therefore, be proper to commit that petition, in order to ascertain what are the powers of the General Government in the case. Mr. GERRY thought gentlemen were out of order in entering upon the merits of the main question at this time, when they were considering the expediency of committing the petition. He should, therefore, not follow them further in that track than barely to observe, that it was the right of the citizens to apply for redress, in every case in which they conceived themselves aggrieved; and it was the duty of Congress to afford redress as far as in their power. That their Southern brethren had been betrayed into the slave trade by the first settlers, was to be lamented; they were not to be reflected on for not viewing this subject in a different light, the prejudice of education is eradicated with difficulty; but he thought nothing would excuse the General Government for not exerting itself to prevent, as far as they constitutionally could, the evils resulting from such enormities as were alluded to by the petitioners; and the same considerations induced him highly to commend the part the Society of Friends had taken; it was the cause of humanity they had interested themselves in, and he wished, with them, to see measures pursued by every nation, to wipe off the indelible stain which the slave trade had brought upon all who were concerned in it. Mr. MADISON thought the question before the committee was no otherwise important than as gentlemen made it so by their serious opposition. Had they permitted the commitment of the memorial, as a matter of course, no notice would have been taken of it out of doors; it could never have been blown up into a decision of the question respecting the discouragement of the African slave-trade, nor alarm the owners with an apprehension that the General Government were about to abolish slavery in all the States; such things are not contemplated by any gentleman; but they excite alarm by their extended objections to committing the memorials. Gentlemen may vote for the commitment of the petition without any intention of supporting the prayer of it. Mr. WHITE would not have seconded the motion, if he had thought it would have brought on a lengthy debate. He conceived that a business of this kind ought to be decided without much discussion; it had constantly been the practice of the House, and he did not suppose there was any reason for a deviation. Mr. PAGE said, if the memorial had been presented by any individual, instead of the respectable body from whom it emanated, he should have voted in favor of a commitment, because it was the duty of the Legislature to attend to subjects brought before them by their constituents; if, upon inquiry, it was discovered to be improper to comply with the prayer of the petitioners, he would say so, and they would be satisfied. Mr. STONE thought the business ought to be left to take its usual course; by the rules of the House, it was expressly declared that petitions, memorials, and other papers, addressed to the House should not be debated or decided on the day they were first read. Mr. BALDWIN felt at a loss to account why precipitation was used on this occasion, contrary to the customary usage of the House. He had not heard a single reason advanced in favor of it. To be sure it was said the petitioners are a respectable body of men; he did not deny it; but certainly gentlemen did not suppose they were paying respect to them or to the House, when they urged such a hasty procedure. It was contrary to his idea of respect, and the idea the House had always expressed, when they had important subjects under consideration; and, therefore, he should be against the motion. He was afraid that there was really a little volunteering in this business, as it had been termed by the gentleman from Georgia. Mr. HUNTINGTON considered the petitioners as much disinterested as any persons in the United States; he was persuaded they had an aversion to slavery, yet they were not singular in this; others had the same; and he hoped, when Congress took up the subject, they would go as far as possible to prohibit the evil complained of. But he thought that would be better done by considering it in the light of revenue; when the Committee of the Whole on questions of finance might properly take the subject into consideration, without giving any ground for alarm. Mr. TUCKER.--I have no doubt on my mind respecting what ought to be done on this occasion; so far from committing the memorial, we ought to dismiss it without further notice. What is the purport of the memorial? It is plainly this, to reprobate a particular kind of commerce, in a moral point of view, and to request the interposition of Congress to effect its abrogation. But Congress has no authority, under the constitution, to do more than lay a duty of ten dollars upon each person imported; and this is a political consideration, not arising from either religion or morality, and is the only principle upon which we can proceed to take it up. But what effect do these men suppose will arise from their exertions? Will a duty of ten dollars diminish the importation? Will the treatment be better than usual? I apprehend not; nay, it may be worse, because an interference with the subject may excite a great degree of restlessness in the minds of those it is intended to serve, and that may be a cause for the masters to use more rigor towards them than they would otherwise exert: so that these men seem to overshoot their object. But if they will endeavor to procure the abolition of the slave trade, let them prefer their petitions to the State Legislatures, who alone have the power of forbidding the importation. I believe their applications there would be improper; but if they are any where proper, it is there. I look upon the address then to be ill-judged, however good the intention of the framers. Mr. SMITH claimed it as a right that the petition should lie over till to-morrow. THURSDAY, February 11. _Assumption of State Debts._ [Mr. MADISON's motion to discriminate between original creditors and present holders, so as to pay claims in full to the former, and the highest market price to the assignee, and the remainder to the original creditor.] The House then again resolved itself into a Committee of the Whole upon the report of the Secretary of the Treasury, Mr. BALDWIN in the chair. Mr. BURKE's amendment being under consideration, Mr. BURKE said, he had brought his motion forward, in consequence of a hasty promise he had given a member of this House; but as he did not mean to support it, or vote for it, he would withdraw it. Mr. MADISON.--No gentleman, Mr. Chairman, has expressed more strongly than I feel, the importance and difficulty of the subject before us. Although I have endeavored to view it under all its aspects, and analyze it in all its principles, yet have I kept my mind open, and been anxious to aid my own reflections by the reflected light to be expected from gentlemen on this floor who enter into the discussion. For this purpose, I have chosen hitherto rather to be a hearer than a speaker on the subject, and should even at this moment have continued in my seat, but that the turn which the business has taken, renders it requisite for me now, if at all, to trouble the committee with my reflections, and the opinion in which they have terminated. It has been said, by some gentlemen, that the debt itself does not exist in the extent and form which is generally supposed. I confess, sir, I differ altogether from the gentleman who takes that ground. Let us consider, first, by whom the debt was contracted, and then let us consider to whom it is due. The debt was contracted by the United States, who, with respect to that particular transaction, were in a national capacity. The Government was nothing more than the agent or organ, by which the whole body of the people acted. The change in the Government which has taken place has enlarged its national capacity, but it has not varied the national obligation, with respect to the engagements entered into by that transaction. For, in like manner, the present Government is nothing more than the organ, or agent, of the public. The obligation which they are under, is precisely the same with that under which the debt was contracted; although the Government has been changed, the nation remains the same. There is no change in our political duty, nor in the moral or political obligation. The language I now use, sir, is the language of the constitution itself; it declares that all debts shall have the same validity against the United States, under the new, as under the old form of Government. The obligation remains the same, though I hope experience will prove that the ability has been favorably varied. The next question is, to what amount the public are at present indebted? I conceive the question may be answered in a few words. The United States owe the value they received, which they acknowledge, and which they have promised to pay: what is that value? It is a certain sum in principal, bearing an interest of six per cent. No logic, no magic, in my opinion, can diminish the force of the obligation. The only point on which we can deliberate is, to whom the payment is really due; for this purpose, it will be proper to take notice of the several descriptions of people who are creditors of the Union, and lay down some principles respecting them, which may lead us to a just and equitable decision. As there is a small part of the debt yet unliquidated, it may be well to pass it by and come to the great mass of the liquidated debt. It may here be proper to notice four classes into which it may be divided: _First_, Original creditors, who have never alienated their securities. _Second_, Original creditors who have alienated. _Third_, Present holders of alienated securities. _Fourth_, Intermediate holders, through whose hands securities have circulated. The only principles that can govern the decision on their respective pretensions, I take to be, 1. Public Justice; 2. Public Faith; 3. Public Credit; 4. Public Opinion. With respect to the first class, there can be no difficulty. Justice is in their favor, for they have advanced the value which they claim; public faith is in their favor, for the written promise is in their hands; respect for public credit is in their favor, for if claims so sacred are violated, all confidence must be at an end; public opinion is in their favor, for every honest citizen cannot but be their advocate. With respect to the last class, the intermediate holders, their pretensions, if they have any, will lead us into a labyrinth, for which it is impossible to find a clew. This will be the less complained of, because this class were perfectly free, both in becoming and ceasing to be creditors; and because, in general, they must have gained by their speculations. The only rival pretensions, then, are those of the original creditors, who have assigned, and of the present holders of the assignments. The former may appeal to justice, because the value of the money, the service, or the property advanced by them, has never been really paid to them. They may appeal to good faith, because the value stipulated and expected, is not satisfied by the steps taken by the Government. The certificates put into the hands of the creditors, on closing their settlements with the public, were of less real value than was acknowledged to be due; they may be considered as having been forced, in fact, on the receivers. They cannot, therefore, be fairly adjudged an extinguishment of the debt. They may appeal to the motives for establishing public credit, for which justice and faith form the natural foundation. They may appeal to the precedent furnished by the compensation allowed to the army during the late war, for the depreciation of bills, which nominally discharged the debts. They may appeal to humanity, for the sufferings of the military part of the creditors can never be forgotten, while sympathy is an American virtue. To say nothing of the singular hardship, in so many months, of requiring those who have lost four-fifths, or seven-eighths of their due, to contribute the remainder in favor of those who have gained in the contrary proportion. On the other hand, the holders by assignment have claims, which I by no means wish to depreciate. They will say, that whatever pretensions others may have against the public, these cannot affect the validity of theirs. That if they gain by the risk taken upon themselves, it is but the just reward of that risk. That as they hold the public promise, they have an undeniable demand on the public faith. That the best foundation of public credit is that adherence to literal engagements on which it has been erected by the most flourishing nations. That if the new Government should swerve from so essential a principle, it will be regarded by all the world as inheriting the infirmities of the old. Such being the interfering claims on the public, one of three things must be done; either pay both, reject wholly one or the other, or make a _composition_ between them on some principle of equity. To pay both is perhaps beyond the public ability; and as it would far exceed the value received by the public, it will not be expected by the world, nor even by the creditors themselves. To reject wholly the claims of either is equally inadmissible; such a sacrifice of those who possess the written engagements would be fatal to the proposed establishment of public credit; it would moreover punish those who had put their trust in the public promises and resources. To make the other class the sole victims is an idea at which human nature recoils. A composition, then, is the only expedient that remains; let it be a liberal one in favor of the present holders, let them have the highest price which has prevailed in the market; and let the residue belong to the original sufferers. This will not do perfect justice; but it will do more real justice, and perform more of the public faith, than any other expedient proposed. The present holders, where they have purchased at the lowest price of the securities, will have a profit that cannot reasonably be complained of; where they have purchased at a higher price, the profit will be considerable; and even the few who have purchased at the highest price cannot well be losers, with a well funded interest of six per cent. The original sufferers will not be fully indemnified; but they will receive, from their country, a tribute due to their merits, which, if it does not entirely heal their wounds, will assuage the pain of them. I am aware, that many plausible objections will lie against what I have suggested, some of which I foresee and will take some notice of. It will be said, that the plan is impracticable; should this be demonstrated, I am ready to renounce it; but it does not appear to me in that light. I acknowledge that such a scale as has often been a subject of conversation, is impracticable. The discrimination proposed by me, requires nothing more than a knowledge of the present holders, which will be shown by the certificates; and of the original holders, which the office documents will show. It may be objected, that if the Government is to go beyond the literal, into the equitable claims against the United States, it ought to go back to every case where injustice has been done. To this the answer is obvious: the case in question is not only different from others in point of magnitude and of practicability, but forces itself on the attention of the committee, as necessarily involved in the business before them. It may be objected, that public credit will suffer, especially abroad; I think this danger will be effectually obviated by the honesty and disinterestedness of the Government displayed in the measure, by a continuance of the punctual discharge of foreign interest, by the full provision to be made for the whole foreign debt, and the equal punctuality I hope to see in the future payments on the domestic debts. I trust also, that all future loans will be founded on a previous establishment of adequate funds; and that a situation, like the present, will be thereby rendered impossible. I cannot but regard the present case as so extraordinary, in many respects, that the ordinary maxims are not strictly applicable to it. The fluctuations of stock in Europe, so often referred to, have no comparison with those in the United States. The former never exceeded 50, 60, or 70 per cent.: can it be said, that because a Government thought this evil insufficient to justify an interference, it would view in the same light a fluctuation amounting to seven or eight hundred per cent. I am of opinion, that were Great Britain, Holland, or any other country, to fund its debts precisely in the same situation as the American debt, some equitable interference of the Government would take place. The South Sea scheme, in which a change, amounting to one thousand per cent. happened in the value of stock, is well known to have produced an interference, and without any injury whatever to the subsequent credit of the nation. It is true, that in many respects, the case differed from that of the United States; but, in other respects, there is a degree of similitude, which warrants the conjecture. It may be objected, that such a provision as I propose will exceed the public ability; I do not think the public unable to discharge honorably all its engagements, or that it will be unwilling, if the appropriations shall be satisfactory. I regret, as much as any member, the unavoidable weight and duration of the burthens to be imposed; having never been a proselyte to the doctrine, that public debts are public benefits. I consider them, on the contrary, as evils which ought to be removed as fast as honor and justice will permit, and shall heartily join in the means necessary for that purpose. I conclude with declaring, as my opinion, that if any case were to happen among individuals, bearing an analogy to that of the public, a Court of Equity would interpose for its redress; or that if a tribunal existed on earth, by which nations could be compelled to do right, the United States would be compelled to do something not dissimilar in its principles to what I have contended for. Mr. LIVERMORE wished the amendment he had formerly mentioned might be made to the original proposition; it was, to insert, before the word "interest," the words, "at a certain rate o." Mr. SHERMAN apprehended it would strongly imply that Congress meant to reduce the rate of interest, and he did not wish that question involved with the present. Mr. LIVERMORE's motion being seconded, the question was put thereon, and it being lost, Mr. MADISON moved to amend the original proposition, so as to read as follows: _Resolved_, That adequate funds ought to be provided for paying the interest and principal of the domestic debt, as the same shall be liquidated; and that in such liquidation, the present holders of public securities, which have been alienated, shall be settled with according to the highest market rate of such securities; and that the balance of the sums due from the public, be paid in such proportion to the original holder of such securities. Mr. BOUDINOT said, he had long been in the habit of paying great respect to the sentiments of the gentleman from Virginia; but he feared, on this occasion, he had not viewed the subject with his usual accuracy. He was not surprised that the gentleman was led away by the dictates of his heart, for he believed he really felt for the misfortunes of his fellow-citizens, who had been the prey of avaricious men. Indeed, it is matter of less surprise, on another account, for heretofore I contemplated the subject in nearly the same point of view. Influenced by a desire to do justice to every person connected with the public, I wished for the means of compensating the original holders, who had sold their certificates at a great loss; but I found the thing, upon long and careful examination, to be both unjust and impracticable. The honorable gentleman tells us, that the debt was contracted for meritorious services, and inquires whether the creditor received an adequate compensation in full discharge? I say, sir, this debt is still due, and that the person to whom it is due, has received nothing but a certificate as evidence of his claim; but then, if any of our first creditors have put another person in their shoes, the question will arise, are we to disown the act of the party himself? Are we to say, we will not be bound by your transfer, we will not treat with your representative, but insist upon a resettlement with you alone? But the same reasoning will oblige us to go further, and investigate all the claims of those who have received of the Government Continental money, which they afterwards parted with for ten, forty, or one hundred for one. FRIDAY, February 12. _Abolition of Slavery._ The following memorial of the Pennsylvania Society for promoting the Abolition of Slavery, the relief of free negroes unlawfully held in bondage, and the improvement of the condition of the African race, was presented and read: The memorial respectfully showeth, That from a regard for the happiness of mankind, an association was formed several years since in this State, by a number of her citizens, of various religious denominations, for promoting the abolition of slavery, and for the relief of those unlawfully held in bondage. A just and acute conception of the true principles of liberty, as it spread through the land, produced accessions to their numbers, many friends to their cause, and a Legislative co-operation with their views, which, by the blessing of Divine Providence, have been successfully directed to the relieving from bondage a large number of their fellow-creatures of the African race. They have also the satisfaction to observe, that in consequence of that spirit of philanthropy and genuine liberty which is generally diffusing its beneficial influence, similar institutions are forming at home and abroad. That mankind are all formed by the same Almighty Being, alike objects of his care, and equally designed for the enjoyment of happiness, the Christian religion teaches us to believe, and the political creed of Americans fully coincides with the position. Your memorialists, particularly engaged in attending to the distresses arising from slavery, believe it their indispensable duty to present this subject to your notice. They have observed, with real satisfaction, that many important and salutary powers are vested in you for "promoting the welfare and securing the blessings of liberty to the people of the United States;" and as they conceive that these blessings ought rightfully to be administered, without distinction of color, to all descriptions of people, so they indulge themselves in the pleasing expectation, that nothing which can be done for the relief of the unhappy objects of their care will be either omitted or delayed. From a persuasion that equal liberty was originally the portion, and is still the birthright of all men; and influenced by the strong ties of humanity, and the principles of their institution, your memorialists conceive themselves bound to use all justifiable endeavors to loosen the bands of slavery, and promote a general enjoyment of the blessings of freedom. Under these impressions, they earnestly entreat your serious attention to the subject of slavery; that you will be pleased to countenance the restoration of liberty to those unhappy men, who alone, in this land of freedom, are degraded into perpetual bondage, and who, amidst the general joy of surrounding freemen, are groaning in servile subjection; that you will devise means for removing this inconsistency from the character of the American people; that you will promote mercy and justice towards this distressed race, and that you will step to the very verge of the power vested in you for discouraging every species of traffic in the persons of our fellow-men. BENJ. FRANKLIN, _President_. PHILADELPHIA, _February_ 3, 1790. Mr. HARTLEY then called up the memorial presented yesterday, from the annual meeting of Friends at Philadelphia, for a second reading; whereupon the same was read a second time, and moved to be committed. Mr. TUCKER was sorry the petition had a second reading, as he conceived it contained an unconstitutional request, and from that consideration he wished it thrown aside. He feared the commitment of it would be a very alarming circumstance to the Southern States; for if the object was to engage Congress in an unconstitutional measure, it would be considered as an interference with their rights, the people would become very uneasy under the Government, and lament that they ever put additional powers into their hands. He was surprised to see another memorial on the same subject; and that signed by a man who ought to have known the constitution better. He thought it a mischievous attempt, as it respected the persons in whose favor it was intended. It would buoy them up with hopes, without a foundation, and as they could not reason on the subject, as more enlightened men would, they might be led to do what they would be punished for, and the owners of them, in their own defence, would be compelled to exercise over them a severity they were not accustomed to. Do these men expect a general emancipation of slaves by law? This would never be submitted to by the Southern States without a civil war. Do they mean to purchase their freedom? He believed their money would fall short of the price. But how is it they are more concerned in this business than others? Are they the only persons who possess religion and morality? If the people are not so exemplary, certainly they will admit the clergy are; why, then, do we not find them uniting in a body, praying us to adopt measures for the promotion of religion and piety, or any moral object? They know it would be an improper interference; and to say the best of this memorial, it is an act of imprudence, which he hoped would receive no countenance from the House. Mr. SENEY denied that there was any thing unconstitutional in the memorial; at least, if there was it had escaped his attention, and he should be obliged to the gentleman to point it out. Its only object was, that Congress should exercise their constitutional authority to abate the horrors of slavery, as far as they could; indeed, he considered that all altercation on the subject of commitment was at an end, as the House had impliedly determined yesterday that it should be committed. Mr. BURKE saw the disposition of the House, and he feared it would be referred to a committee, maugre all their opposition; but he must insist, that it prayed for an unconstitutional measure; did it not desire Congress to interfere and abolish the slave trade, while the constitution expressly stipulates that Congress shall exercise no such power? He was certain the commitment would sound an alarm, and blow the trumpet of sedition in the Southern States. He was sorry to see the petitioners paid more attention to than the constitution; however, he would do his duty and oppose the business totally; and if it was referred to a committee, as mentioned yesterday, consisting of a member from each State, and he was appointed, he would decline serving. Mr. SCOTT.--I cannot entertain a doubt but the memorial is strictly agreeable to the constitution; it respects a part of the duty particularly assigned to us by that instrument, and I hope we may be inclined to take it into consideration. We can at present lay our hands upon a small duty of ten dollars; I would take this, and if it is all that we can do, we must be content: but I am sorry that the framers of the constitution did not go further, and enable us to interdict the traffic entirely; for I look upon the slave trade to be one of the most abominable things on earth; and if there was neither God nor devil, I should oppose it upon the principles of humanity, and the law of nature. I cannot, for my part, conceive how any person can be said to acquire a property in another; is it by virtue of conquest? What are the rights of conquest? Some have dared to advance this monstrous principle, that the conqueror is absolute master of his conquest; that he may dispose of it as his property, and treat it as he pleases; but, enough of those who reduce men to the state of transferable goods, or use them like beasts of burthen, who deliver them up as property or patrimony to others. Let us argue on principles countenanced by reason and becoming humanity; the petitioners view the subject in a religious light, but I do not stand in need of religious motives to induce me to reprobate the traffic in human flesh; other considerations weigh with me to support the commitment of the memorial, and to support every constitutional measure likely to bring about its total abolition. Perhaps, in our Legislative capacity, we can go no further than to impose a duty of ten dollars; but I do not know how far I might go, if I was one of the Judges of the United States, and those people were to come before me and claim their emancipation; but I am sure I would go as far as I could. Mr. JACKSON differed with the gentleman last up, and supposed the master had a qualified property in his slave. He said the contrary doctrine would go to the destruction of every species of personal service. The gentleman said, he did not stand in need of religion to induce him to reprobate slavery, but if he is guided by that evidence upon which the Christian system is founded, he will find that religion is not against it. He will see, from Genesis to Revelations, the current setting strong that way. There never was a Government on the face of the earth, but what permitted slavery. The purest sons of freedom in the Grecian Republics, the citizens of Athens and Lacedæmon, all held slaves. On this principle the nations of Europe are associated; it is the basis of the feudal system. But suppose all this to have been wrong, let me ask the gentleman if it is good policy to bring forward a business at this moment, likely to light up the flame of civil discord; for the people of the Southern States will resist one tyranny as soon as another? The other parts of the continent may bear them down by force of arms, but they will never suffer themselves to be divested of their property without a struggle. The gentleman says, if he was a Federal Judge, he does not know to what length he would go in emancipating these people; but I believe his judgment would be of short duration in Georgia, perhaps even the existence of such a judge might be in danger. Mr. SHERMAN could see no difficulty in committing the memorial; because it was probable the committee would understand their business, and perhaps they might bring in such a report as would be satisfactory to gentlemen on both sides of the House. Mr. BALDWIN was sorry the subject had ever been brought before Congress, because it was of a delicate nature as it respected some of the States. Gentlemen who had been present at the formation of this constitution could not avoid the recollection of the pain and difficulty which the subject caused in that body. The members from the Southern States were so tender upon this point, that they had well-nigh broken up without coming to any determination; however, from the extreme desire of preserving the Union, and obtaining an efficient Government, they were induced mutually to concede, and the constitution jealously guarded what they agreed to. If gentlemen look over the footsteps of that body, they will find the greatest degree of caution used to imprint them, so as not to be easily eradicated; but the moment we go to jostle on that ground, I fear we shall feel it tremble under our feet. Congress have no power to interfere with the importation of slaves beyond what is given in the ninth section of the first article of the constitution; every thing else is interdicted to them in the strongest terms. If we examine the constitution, we shall find the expressions relative to this subject cautiously expressed, and more punctiliously guarded than any other part, "The migration or importation of such persons shall not be prohibited by Congress." But lest this should not have secured the object sufficiently, it is declared, in the same section, "That no capitation or direct tax shall be laid, unless in proportion to the census;" this was intended to prevent Congress from laying any special tax upon negro slaves, as they might, in this way, so burthen the possessors of them as to induce a general emancipation. If we go on to the fifth article, we shall find the first and fifth clauses of the ninth section of the first article restrained from being altered before the year 1808. Gentlemen have said that this petition does not pray for an abolition of the slave trade. I think, sir, it prays for nothing else; and therefore we have no more to do with it than if it prayed us to establish an order of nobility, or a national religion. Mr. SYLVESTER said, that he had always been in the habit of respecting the Society called Quakers; he respected them for their exertions in the cause of humanity; but he thought the present was not a time to enter into a consideration of the subject, especially as he conceived it to be a business within the province of the State Legislatures. Mr. LAWRENCE observed, that the subject would undoubtedly come under the consideration of the House; and he thought, as it was now before them, that the present time was as proper as any; he was therefore for committing the memorial, and when the prayer of it had been properly examined, they could see how far Congress may, constitutionally, interfere: as they knew the limits of their power on this, as well as every other occasion, there was no just apprehension to be entertained that they would go beyond it. Mr. SMITH (of South Carolina) insisted that it was not in the power of the House to grant the prayer of the petition, which went to the total abolishment of the slave trade, and it was therefore unnecessary to commit it. He observed, that in the Southern States difficulties had arisen on adopting the constitution, inasmuch as it was apprehended that Congress might take measures under it for abolishing the slave trade. Perhaps the petitioners, when they applied to this House, did not think their object unconstitutional, but now they are told that it is, they will be satisfied with the answer, and press it no further. If their object had been for Congress to lay a duty of ten dollars per head on the importation of slaves, they would have said so, but that does not appear to have been the case. The commitment of the petition, on that ground, cannot be contended. If they will not be content with that, shall it be committed to investigate facts? The petition speaks of none. For what purpose, then, shall it be committed? If gentlemen can assign no good reason for the measure, they will not support it when they are told that it will create jealousies and alarm in the Southern States; for I can assure them that there is no point on which they are more jealous and suspicious, than on a business with which they think the Government has nothing to do. When we entered into this confederacy, we did it from political, not from moral motives, and I do not think my constituents want to learn morals from the petitioners; I do not believe they want improvements in their moral system; if they do, they can get it at home. The gentleman from Georgia has justly stated the jealousy of the Southern States. On entering into this Government, they apprehend that the other States, not knowing the necessity the citizens of the Southern States were under to hold this species of property, would, from motives of humanity and benevolence, be led to vote for a general emancipation; and had they not seen that the constitution provided against the effect of such a disposition, I may be bold to say they never would have adopted it. And, notwithstanding all the calmness with which some gentlemen have viewed the subject, they will find that this discussion alone will create great alarm. We have been told, that if this would be the case, we ought to have avoided it, by saying nothing; but it was not for that purpose that we were sent here. We look upon this measure as an attack upon the palladium of the property of our country; it is therefore our duty to oppose it by every means in our power. Gentlemen should consider, that when we entered into a political connection with the other States, that this property was there; it was acquired under a former Government, conformably to the laws and constitution, therefore any thing that will tend to deprive them of that property, must be an _ex post facto_ law, and, as such, is forbidden by our political compact. I said the States would never have entered into the Confederation, unless their property had been guarantied to them, for such is the state of agriculture in that country, that without slaves it must be abandoned. Why will these people, then, make use of arguments to induce the slave to turn his hand against his master? We labor under difficulties enough from the ravages of the late war. A gentleman can hardly come from that country with a servant or two, either to this place or Philadelphia, but there are persons trying to seduce his servants to leave him; and, when they have done this, the poor wretches are obliged to rob their master, in order to obtain a subsistence; all those, therefore, who are concerned in this seduction, are accessories to the robbery. The reproaches which they cast upon the owners of negro property, is charging them with the want of humanity. I believe the proprietors have as much humanity as persons in any part of the continent, and are as conspicuous for their good morals as their neighbors. It was said yesterday that the Quakers are a society known to the laws and the constitution, but they are no more so than other religious societies; they stand exactly in the same situation; their memorial, therefore, relates to a matter in which they are no more interested than any other sect, and can only be considered as a piece of advice, which it is not customary to refer to a committee; but if it is supposed to pray for what they think a moral purpose, is that sufficient to induce us to commit it? What may appear a moral virtue in their eyes, may not be so in reality. I have heard of a sect of Shaking Quakers, who, I presume, suppose their tenets of a moral tendency. I am informed one of them forbids to intermarry, yet you may see them with a numerous offspring about them. Now, if these people were to petition Congress to pass a law prohibiting matrimony, would gentlemen agree to refer such a petition? I think if they would reject one of that nature, as improper, they ought also to reject this. Mr. PAGE was in favor of the commitment. He hoped that the designs of the respectable memoralists would not be stopped at the threshold, in order to preclude a fair discussion of the prayer of the memorial. He observed, that gentlemen had founded their arguments upon a misrepresentation; for the object of the memorial is not declared to be the total abolition of the slave trade, but that Congress will consider whether it be not in reality within their power to exercise justice and mercy, which, if adhered to, they cannot doubt must produce the abolition of the slave trade. If, then, the prayer contained nothing unconstitutional, he trusted the meritorious effort of the petitioners would not be frustrated. With respect to the alarm that was apprehended, he conjectured there was none; but there might be just cause if the memorial was not taken into consideration. He placed himself in the case of a slave, and said, that, on hearing that Congress had refused to listen to the decent suggestions of a respectable part of the community, he should infer that the General Government (from which was expected great good would result to every class of citizens) had shut their ears against the voice of humanity, and he should despair of any alleviation of the miseries he and his posterity had in prospect; if any thing could induce him to rebel, it must be a stroke like this, impressing on his mind all the horrors of despair. But if he was told that application was made in his behalf, and that Congress was willing to hear what could be urged in favor of discouraging the practice of importing his fellow-wretches, he would trust in their justice and humanity, and wait the decision patiently. He presumed that these unfortunate people would reason in the same way, and he, therefore, conceived the most likely way to prevent danger was to commit the petition. He lived in a State which had the misfortune of having in her bosom a great number of slaves; he held many of them himself, and was as much interested in the business, as any gentleman in South Carolina or Georgia, yet if he was determined to hold them in eternal bondage, he should feel no uneasiness or alarm on account of the present measure, because he should rely upon the virtue of Congress that they would not exercise any unconstitutional authority. Mr. MADISON.--The debate has taken a serious turn, and it will be owing to this alone if an alarm is created; for, had the memorial been treated in the usual way, it would have been considered as a matter of course, and a report might have been made so as to have given general satisfaction. If there was the slightest tendency by the commitment to break in upon the constitution, he would object to it; but he did not see upon what ground such an event was to be apprehended. The petition prayed, in general terms, for the interference of Congress, so far as they were constitutionally authorized: but even if its prayer was, in some degree, unconstitutional, it might be committed, as was the case on Mr. Churchman's petition, one part of which was supposed to apply for an unconstitutional interference by the General Government. He admitted, that Congress is restricted by the constitution from taking measures to abolish the slave trade; yet there are a variety of ways by which it could countenance the abolition, and regulations might be made in relation to the introduction of them into the new States to be formed out of the Western Territory. He thought the object well worthy of consideration. Mr. GERRY thought the interference of Congress fully compatible with the constitution, and could not help lamenting the miseries to which the natives of Africa were exposed by this inhuman commerce. He never contemplated the subject, without reflecting what his own feelings would be, in case himself, his children, or friends were placed in the same deplorable circumstances. He then adverted to the flagrant acts of cruelty which are committed in carrying on that traffic; and asked, whether it can be supposed that Congress has no power to prevent such abuses? He then referred to the constitution, and pointed out the restrictions laid on the General Government respecting the importation of slaves. It was not, he presumed, in the contemplation of any gentleman in this House to violate that part of the constitution; but that we have a right to regulate this business, is as clear as that we have any rights whatever; nor has the contrary been shown by any person who has spoken on the occasion. Congress can, agreeably to the constitution, lay a duty of ten dollars on imported slaves; they may do this immediately. He made a calculation of the value of the slaves in the Southern States, and supposed they may be worth ten millions of dollars. Congress have a right, if they see proper, to make a proposal to the Southern States to purchase the whole of them, and their resources in the Western Territory might furnish them with the means. He did not intend to suggest a measure of this kind; he only instanced these particulars to show that Congress certainly has a right to intermeddle in the business. He thought that no objection had been offered of any force to prevent the commitment of the memorial. Mr. BOUDINOT had carefully examined the petition and found nothing like what was complained of by gentlemen contained in it; he, therefore, hoped they would withdraw their opposition and suffer it to be committed. Mr. SMITH (of South Carolina) said, that as the petitioners had particularly prayed Congress to take measures for the annihilation of the slave trade; and as that was admitted, on all hands, to be beyond their power, and as the petitioners would not be gratified by a tax of ten dollars per head, which was all that was within their power, there was, of consequence, no occasion for committing it. The question on the commitment being about to be put, the yeas and nays were called for, and were as follows: YEAS.--Messrs. Ames, Benson, Boudinot, Brown, Cadwalader, Clymer, Fitzsimons, Floyd, Foster, Gale, Gerry, Gilman, Goodhue, Griffin, Grout, Hartley, Hathorn, Heister, Huntington, Lawrence, Lee, Leonard, Livermore, Madison, Moore, Muhlenberg, Page, Parker, Partridge, Rensselaer, Schureman, Scott, Sedgwick, Seney, Sherman, Sinnickson, Smith, (of Maryland,) Sturges, Thatcher, Trumbull, Wadsworth, White, and Wynkoop--43. NAYS.--Messrs. Baldwin, Bland, Burke, Coles, Huger, Jackson, Matthews, Sylvester, Smith, (of South Carolina,) Stone, and Tucker--14. The memorials were referred accordingly. MONDAY, February 15. _Public Credit._ The House went again into a Committee of the Whole on the report of the Secretary of the Treasury, Mr. BALDWIN in the chair. Mr. MADISON's motion for a discrimination being under consideration, Mr. SEDGWICK.--The proposition, Mr. Chairman, contains a question of the utmost importance. And the committee must be obliged to the gentleman who brought it forward for his very ingenious discussion of the subject of the domestic debt. With respect to the question now before the committee, so much has been said, that I think it will not be necessary to consume much of their time in the investigation. On the subject of contracts I have to observe, that whenever a voluntary engagement is made for a valuable consideration for property advanced or services rendered, and the terms of the contract are understood, if no fraud or imposition is practised, the party engaging is bound to the performance, according to the literal meaning of the words in which it is expressed. Such contract, whether of a Government or an individual, may be either transferable or not transferable. The latter species of contract receives an additional value from its capacity of being transferred, if the circumstances of the possessor should render a sale of it necessary or convenient to him. To render the transferable quality of such evidences of contract in any degree advantageous to the possessor, it is necessary to consider, in case of sale, the alienee possessed of all the property of the original holder; and indeed it is highly absurd, and even contradictory, to say, that such evidences of debt are transferable, and at the same time to say that there is in them a kind of property that the holder could not convey by _bona fide_ contract. This is the construction which has invariably been given to these contracts, whether formed by Government or by individuals. To deprive the citizen of the power of binding himself by his own voluntary contract, or to prevent a disposition of property in its nature alienable, would be a violent and unjustifiable invasion of one of those rights of which man, as a citizen, is the most tenacious, and would indeed break one of the strongest bonds by which society is holden together. In the transfers which have been made, the contracts were fairly made; the whole rights have been transferred. It is not pretended any fraud or imposition has been practised. The risk was calculated by the parties, and it was observed, that the risk contemplated a revolution in the Government. From the foregoing deduction of particulars, it is presumed to be proved that a property is vested in the transferees. That if this property is divested by the Government, the law for that purpose would have a retrospective operation, and that no _ex post facto_ law could be more alarming than that by which the right of private property is violently invaded. Having considered the nature of the contract, and of the obligations which result from it, I beg leave to call the attention of the committee to those circumstances by which that obligation may be destroyed, impaired, or suspended. They are stated to be, 1. Performance. 2. Voluntary discharge. 3. Composition. 4. Inability. And gentlemen are called upon to give information of any other causes which can produce either of those effects. With regard, more particularly, to the proposition before the committee, I have, to observe, that with regard to these contracts, there has existed a depreciation in consequence of the failure of Government regularly to pay the interest. That in this depreciated state, the securities have been alienated; that of course the original holders have sustained a loss; that if the loss resulted from the fault, and not the misfortune of Government, the creditors have, undeniably, a demand against the Government for compensation; that this demand, however well founded, can never authorize the Government to invade the honestly acquired property of the present possessors, a property warranted by the terms of the contract itself, and sanctioned by the act of Congress, of April, 1783, and the validity of it recognized by the constitution we have sworn to support. With regard to the claims of the original holders, it is, however, observable, that the domestic creditor, at the time the contract was formed, well knew the nature of the constitution of the Government administered by Congress, the other contracting party; that its power of performance depended on the ability and good-will of the States; that Congress had always performed its duty, had made the necessary requisitions; that this was its utmost power; and that the failure had arisen wholly from the neglect of the States. I therefore submit it to the committee, whether, if the original holder has a just or equitable demand, he should not resort to the State of which he is a member? I admit, that the case of an original holder is indeed a hard one; that I have a respect for his misfortunes and for his pretensions; that if satisfaction is discovered to be just and practicable, I would not hesitate to go to the utmost ability of the Government for that purpose. But let me ask, what merit will the Government possess, if it strip one class of citizens, who have acquired property by the known and established rules of law, under the specious pretence of doing justice to another class of citizens? It was implicitly agreed, that eighty per cent. depreciation would not authorize the interference proposed by the motion. I ask, then, for some point of depreciation to be pointed out, which will authorize such interference. The question for which I contend has received the universal approbation of mankind; there are no instances of the interference contended for, and this general sense of mankind affords me some evidence of truth. This contract was founded on a valuable consideration. It was the price of our liberty and independence. The possessor claimed, according to the very terms of the contract, though it is not pretended that the engagements of Government have been performed. No composition with the creditors is proposed; nor is the proposition founded on any pretended inability of the Government; for to comply with the intention of it, 1,600,000 dollars, annually, more than is proposed by the report of the Secretary, would be required. By reason of the circumstances which have taken place, the honorable gentleman (Mr. MADISON) supposes, that, if the whole amount of a security shall be paid to the present possessor, he will have a sum of money to which the original holder is equitably entitled. If this is true, then, no interposition is necessary, it being a well-known rule of law, that an action will always lie to recover money out of the hands of another, to which the plaintiff, from the principles of equity and good conscience, is entitled. With regard to the effects, which will probably result from this measure, I have to observe, that they will be destructive to our national character. That the world is now willing, charitably, to impute our former miscarriages to events we could not control; but should our first measures, in regard to public faith, be a violent infraction of our contracts, it will sanction all our bitterest enemies have said, to our disadvantage. With regard to its effects on credit, little dependence will be placed on the plighted faith of a Government which, under the pretence of doing equity, has exercised a power of dispensing with its contracts, and has thereby formed for itself a precedent of future violations, both with respect to its funds and contracts. With regard to discovering who was the original holder, except so far as respects the army debt, I am certain there are no documents by which the necessary facts can be discovered. I presume it is a fact, with regard to much the greater part of the debt, that any fictitious name was inserted. And with regard to the army debt, the soldiers, generally, who were in the service at the conclusion of the war, had received ample satisfaction for their services, at the time of their enlistment, having been paid more, on an average, than two hundred and fifty dollars per man. I have only to add, that the proposed system will lay a foundation for infinite frauds and perjuries, and that it will, beyond all powers of calculation, multiply the evils of speculation. Mr. LAWRENCE observed, that the proposition of the gentleman from Virginia (Mr. MADISON) derived force from the talents and knowledge of that gentleman in public transactions; but that, on examination, it would be found to contain doctrines very repugnant to the interest and prosperity of the Union. He then stated, that the debts contracted by the United States were for loans of money, supplies of articles necessary for the public wants, and for actual services rendered in different employments. That these debts were ultimately adjusted and reduced to their present transferable form. That every part of the contract was essential to it. The negotiability was a material part. That the nature of the contract was frequently recognized by the late Government. That, in 1783, Congress recommended certain funds to be established to pay the interest, and put the principal in a course of discharge. That this recommendation was unequivocal, as to the nature of it, and made no discrimination between the possessor and original holder. That the subsequent conduct of that body was conformable to this recommendation. That they had annually called on the States to furnish money to pay the interest, without discriminating between the original holder and present possessor. That they had paid interest on the securities, without making any discrimination. That provision had been made for holders of loan-office certificates that were subject to liquidation, to have them cancelled, and others issued for the specie value. That the holders of certificates were enabled to have them registered, to guard against accidents; and that no distinction was made between the original holder and the alienee. That the transferable nature of the claim was for the benefit of the creditor, because it gave it an active value. That he consented to take it, and consulted his own advantage. That the conduct of the late Congress, since the war, had been uniform in the support of this contract, and they had done no act to impair its obligation, according to the terms of it. That this contract was valid against the Government; for, notwithstanding the truth of the gentleman's observations, that the nation is the same, though the bodies that administered the Government were different, there was yet far greater security; and to remove all doubt, a clause that made all debts and engagements valid against the United States, under the late General Government, valid against the present, was inserted in the constitution. He further observed, that this contract having descended upon the Government, there was no right in the Legislature to impair the force of it. That the particular Governments are restrained from passing laws impairing the obligations of contracts. That this interference would be a violation of the contract, between the individuals, when the certificate was transferred; and it would not be presumed, the States being prohibited, that the General Government had the power to do it. He then adverted to the principles of the gentleman, to wrest the obligation of the public to the original holder; and observed, that the same principles were in favor of the present possessor. That public justice required a performance of contracts, when there was no fraud on the part of the holder. That the possessor had been guilty of no fraud, no deception. That the contract between him and the original holder was fair, and that a hazard and risk attended the purchase adequate to the advantage. That nothing short of a revolution in Government could have produced payment. That if there was an imposition, the public occasioned it; and between the original holder and the public, there might be a claim for retribution. That public faith was as sacredly pledged to the bearer, or present possessor, as to the original creditor. That public credit results from fair and upright conduct; that the Government, to support it, must perform its contract. That this was a contract recognized by them, and as such should be discharged. That the condition we have been in made it proper for us to be cautious on this subject; and even at present, people doubted our disposition to establish our credit. That this would give a fatal blow to it, and when we should recover, if ever, was doubtful. That the public opinion was difficult to be ascertained; gentlemen had different modes to determine it. He supposed it was better ascertained by the acts of public bodies than by squibs in the newspapers, or by pamphlets written by individuals. That the uniform conduct of men, deputed by the particular States to represent them, in the late General Government, was the best standard; and their opinion, from the year 1783, was in favor of the present possessor. That the conduct of the particular States was another circumstance; that he did not know of any discrimination made by them, though it had been attempted. That the general opinion of men of property was in favor of it; and that these sources of public opinion were more certain than those he had before mentioned. He further observed, that although he believed gentlemen supposed no advantage would be derived to the United States from this discrimination, yet much would arise. That part of the army was composed of foreigners, many had left the country, others were dead; all their part would be unclaimed. That certificates were issued to public officers to a great amount, and were paid by them to persons from whom they purchased. The difficulty of making proof of the original creditor would be great; and, from this circumstance, great sums would be gained to the public. That there were persons enough who would have sagacity to discern this; and they would doubt the purity of the public motive, should the gentleman's plan be adopted. He then adverted to the circumstance of the new creditor receiving paper. That this paper might be subject to another liquidation on the same principle as the present. That it would introduce doubt and distrust of public engagements; and there would be no greater security, although a fund was pledged, than there is at present, for whenever the public pleased, they might destroy the obligation. Arguments were improperly addressed to their feelings; but that however hard it may be for the original creditor, who had parted with his certificates, to contribute to pay the debt, yet it would be equally hard on him who had been injured by Continental money, who had been plundered by the enemy, who had had his property burned by them in the course of the war; and that instances of these kinds were numerous. He then adverted to the doctrine of the Court of Equity; and urged that this court must be governed by principle. That were the committee this high court, and the United States the original creditor, and the present possessor before them; and if there appeared no fraud on the part of the possessor, the original creditor would have no just claim on him. That between the United States and original creditors, the United States were in fault, and the claim, if good, would be against them. Mr. SMITH (of S. C.) remarked, that it was necessary and proper the House should give the subject the most ample discussion. The question had long agitated the public mind, and the people should know that it had occupied the serious attention of their Representatives, and be made acquainted with the principles of their decision. For his part, having bestowed on it the most attentive consideration, he could assert, that the more he contemplated it, the more he was impressed with a conviction, that the proposition was unjust, impolitic, and impracticable. It consisted of two parts: The one was to take away the property of one person; the other was to give that property to another; and this by a voluntary interposition of the House, by a mere act of power, without the assent of the former, or without even the application of the latter. For it was remarkable, that the original holders, who had alienated their certificates, had not come forward with this demand; and it is presumable, that, had they applied for redress, they would reject any indemnification which was the result of such manifest injustice. To prove that this was taking away the property of a citizen by force, he observed, that the purchaser had, by a fair purchase, acquired a right to the full amount of the sum expressed in the certificate, which it was not within the power of the House to divest him of. No tribunal on earth could lawfully deprive a man of his property fairly obtained. The purchaser bought under the act of Congress, making the securities transferable; and having given the market price, without fraud or imposition, he was, by virtue of such purchase, vested with the complete and absolute ownership of the certificate, as fully as the original holder; and had as much right to demand full payment as the original holder would have had, had the security been still in his hands. Even should the House refuse, by an act of power, to pay him more than half his demand, the other half would still remain against the public; it could not be extinguished. The debt would continue to haunt them; the creditors would loudly clamor for justice, and sooner or later the balance would be paid. Then would they incur all the odium of a violation of private rights, without deriving to the public any advantage whatever. He considered the measure as doing a certain evil, that a possible good might result from it. This was not, in his opinion, the proper mode of doing good. Justice cannot be founded on injustice; and to take money out of the pocket of one man, to put it into that of another, is a precedent which may justify future interferences. This step would lead the House to others: for, if the principle be a just one, then the Government should look into all the transactions and speculations of individuals, in order to correct them, and make retribution to every individual according to his losses. He was persuaded, that the true policy of a Legislative body was, to pursue the broad road of justice, clearly marked out before them; for it was an undeniable truth, that whenever they deviated into by-roads and trackless paths, without any other guide than their own imagination, they would get bewildered in a labyrinth of difficulties, and rejoice to trace back their steps, and regain the plain road. Now, the plain line of conduct is, to do strict justice, such as is enforced in judicial tribunals, between man and man, in a similar case. The debtor is bound to pay the debt to the holder of the security; the contract, between the giver of the bond and the person to whom it was given, is done away the moment the latter assigns it to another person. If A gives a bond to B, who parts with it to C, there is no longer any obligation on the part of A to pay B, but he must pay it to C. A has nothing to do with the private negotiations between B and C, nor to inquire what consideration was given for the security. All that he has to inquire is, whether he really signed it and had value received for it, and the amount of it. He cannot say to the holder, you gave but fifty dollars for this security of one hundred dollars, and I will pay you only fifty; for the law will compel him to pay the hundred. This is a point of justice between man and man. Is there another point of law and justice for the Government? By what rule is the Government to square its conduct, if not by those sacred rules which form the basis of civil society, and are the safeguard of private property? The gentleman from Virginia has said, that giving the present holders, by alienation, the highest market price, would be doing them ample justice; but did the public mean to refund them the money they had actually advanced? No; they were to receive this ample justice by a bit of paper, nominally for ten shillings; but which this very measure would instantly depreciate to eight, or six shillings. They would have this consolation, that, according to the gentleman's reasoning, they would still have a claim against the Government for the balance. For, if the original holder, by selling his certificate for four shillings, has now a just claim against the Government for the balance of sixteen shillings, which it is asserted he has, of course the alienee, to whom the public should now acknowledge a debt of ten shillings, which he would sell for only six, would hereafter have a just demand against the public for four shillings. The reasoning might be carried further, for it would follow, that whenever the public shall pay in paper which shall depreciate, the seller will have a demand against the Government for the difference. The constitution itself, he said, was opposed to the measure, for it was an _ex post facto_ law, which was prohibited in express terms. The transfer of public securities was lawful at the time these alienations were made; an attempt, therefore, to punish the transferees is an attempt to make an _ex post facto_ law, by making that now unlawful which was lawful at the time it was done. It alters the nature of the transaction, and annexes the idea of guilt to that which at the moment of commission, was not only perfectly innocent, but was explicitly authorized and encouraged by a public act of Congress. By that act those who had money were invited to purchase of those who held securities, and now we are called upon to punish the purchasers who bought under that invitation. The constitution restrains the States from passing any laws impairing the force of contracts; _a fortiori_ is the Legislature of the Union restrained. What an example to hold up to the Judiciary of the United States! How could they annul a State law, when the State would be able to plead a precedent on the part of Congress? The right of property is a sacred right; no tribunal on earth can deprive a citizen of his property, unless for a fair equivalent, for the public welfare. The purchaser is vested, by the sale, with an absolute right, to the full amount of the security, and it is beyond their authority to divest him of it. They might, indeed, by an act of power, declare that he should be paid only half; but his right to the other moiety would not be extinguished. It had been said, that the original holder still had a claim against the public, because he had received only two shillings and sixpence for services worth twenty shillings. On the same principle, and with more justice, the present holder would still have a claim for ten shillings, because he has the public bond for twenty shillings. No ingenuity can overcome these stubborn principles of law and justice; they are immutable, and must ultimately prevail. The House had been told that if the Government had defrauded the original holders out of their dues, it was fit the public should rectify the fraud. The former Government was not deficient in inclination to do them ample justice; but, from the imbecility of the Confederation, had not the means. In those days of democratic enthusiasm, the people were afraid of an energetic Government: having so recently experienced the severity of the former one, the citizens of these States were cautious in trusting any Government with power; and it is not improbable that some of the original holders, who suffered their embarrassments, from the want of a Government competent to the payment of its debts, would themselves have opposed vesting Congress with powers adequate to this object. Even the present constitution, which is a mild one, met with considerable opposition: had it been rejected, the public securities would have never been paid. Mr. AMES agreed with the gentleman from Virginia (Mr. MADISON) in regard to the validity of the debt. There was propriety in saying the nation is the same, though the Government be changed. The debt is the price of our liberties, and cannot be diminished a farthing, the gentleman from Virginia says; and why? Because the Government, as one of the contracting parties, cannot annul, or vary the bargain without the consent of the other. If the measure proposed by that gentleman corresponds with that sound principle, he should have the pleasure of agreeing with him on the ultimate decision; but if the measure should be found, on a fair discussion, to be subversive of that principle, it would not merit the countenance of the committee. A claim upon our justice is made, on behalf of the original holders of securities, who have transferred them. Does the plighted faith of the country stand charged to pay the difference between the price their securities sold for in the market and their nominal sum? In order to make the affirmative appear, the worthy gentleman has said, that the paper is the only evidence of a prior contract; and while the paper was sold, the residuary right to the debt still remained in the seller. Supposing this novel doctrine to be true, which cannot be conceded, it will not warrant any conclusion in prejudice of any purchaser of the Loan-office debt; for the paper was given when the loan was made; as no prior debt existed, the paper is the very debt. The gentleman ought, therefore, to confine his motion to the army debt, as his principle seems inapplicable to any other. And even on liquidating the army debt, the certificate extinguished the prior debt; otherwise the public would be twice charged. As, when one man owes another an account, and gives his bond for the balance, the account is no longer of force. By the terms of the certificate, the person transferring has lost his claim against the public. He has freely transferred; for if violence or fraud were practised, the law will afford him redress. In society, as well as in a state of nature, property is changed by the consent of the last occupant. He may dispose of it by gift or at half price, and give a complete title. Nor will the pretence that this transfer was free only in appearance, avail; for the motives which disposed the owner to sell cannot affect the right of the purchaser. Every such creditor risked something; either that the Government would not pay him at all, or not in due season. The risk, computed in free and open market, will be nearly right. It is a kind of insurance against these risks, and the insurers and insured will calculate the rate of insurance better than Government can do it. If there is a new risk of Government interposing, it seems that the purchaser, who may be called the insurer, did not rate his risk high enough. It seems pretty clear, therefore, that there is no claim on the stipulated justice of the country. The committee rose, reported progress, and obtained leave to sit again. TUESDAY, February 16. _Public Credit._ The House again resolved itself into a Committee of the Whole on the report of the Secretary of the Treasury, Mr. BALDWIN in the chair. Mr. MADISON's proposition still under consideration. Mr. JACKSON observed, that although as young a politician as any on the floor, and convinced that the weight of experience was against him, on so important a national subject, he could not be silent; particularly as he had the honor of seconding the gentleman's motion (Mr. MADISON) now before the House, that it would be therefore expected that he should bring forward his reasons, and the principle which actuated him to it. He confessed, that had he not before leaned to the side of a discrimination, the arguments of that able gentleman would have induced him to support the plan he had brought forward. He was induced on another motive to rise, to show that the numerous arguments of the gentlemen in opposition, yesterday, had not convinced him of the impracticability or injustice of the composition. The House were told much of the moral obligations we were under of paying our debts, and the impolicy and injustice of interfering with private contracts. The obligation, he believed, was nowhere denied; the debt was of the highest nature; it was the price of our independence: the only difficulty is, how that debt shall be discharged. He would here observe, that the justice of the plan before the House, had not been so fully objected to, as the impracticability, although it had been asserted to be unjust, by some of the gentlemen who had spoken. He would consider the justice of the proposition. The House had been told the nature of those contracts, and the valuable considerations of them. The contract, as it struck him, fell under the legal terms of _do, ut des_; I give that thou mayest give--or, I give that I may receive. In all contracts there are three requisites: 1st. The agreement. 2d. The consideration. 3d. The thing to be done or omitted. This consideration is to be an equivalent, or full recompense for the thing to be performed. Let us examine what is the thing to be done, and what the consideration is. The creditor, who was to perform the third article of the contract, held twenty shillings, which was to be given for a valuable consideration. What was this consideration? Two shillings and sixpence. He argued, that if this twenty shillings was worth no more than two shillings and sixpence, the contract was fair and substantial; but, if gentlemen carried the idea further, and declared this twenty shillings was money of equal value with the two shillings and sixpence given, he contended that the contract was destroyed. Equity would relieve, would declare it an unrighteous bargain, that there was not an adequate compensation, and would set aside the contract. This public opinion is in favor of the original creditor; it is impossible to be otherwise. The people of America are a grateful people, and they cannot, with indifference, view the earnings of those who established their independence, converted into the coffers of the wealthy and ambitious. The speculator, he contended, was already more than satisfied, if it was only on the principle of interest which had accrued for six, seven, and eight years past, and which they had speculated on since. Mr. BENSON.--The gentlemen in favor of this motion come forward as the advocates of the late army. I wish, therefore, to be ascertained of one fact, do the army wish a measure of this kind to take place? I apprehend they do not; and I am led to this opinion from a knowledge of the habits of military men; they prefer their honor to every pecuniary consideration, and they generally are actuated by that principle alone. I will state a case. Suppose I purchased an officer's certificate for one hundred dollars, and I was to fund it; the Treasurer would say, you are to receive but fifty dollars, the other fifty are reserved for the original holder. Now, if I was to go and tell the officer, that, notwithstanding my purchase of all his right, title, and claim to the one hundred dollars, the Government would give me but fifty, retaining the other fifty for him, he would answer, I will never receive a farthing of it, because it is your money, fairly and honorably purchased of me. Now, in this case, what would you do? Should these fifty dollars fall to the Government, or to me? I reason in this manner, because I suppose this would be a general case. The Society of Cincinnati, of the State of New York, have, by a resolution, which they have published in the papers, disavowed the principle; and, in Rhode Island, a member of the Society was expelled for taking advantage of the tender-law of that State, and paying off a _bona fide_ debt with depreciated paper. I apprehend the principle of action still remains the same throughout the whole of the army. When the soldier conveyed his certificate, there was a contract between the parties, that whatever sum the Government could pay, the whole of it should go to the assignee. Now, by an act of violence, you take the half of it away, and enable the assignor to discharge the contract by paying fifty dollars, when he had engaged that the purchaser should receive one hundred. This is, in effect, the same as the payment of depreciated paper under a tender-law, and would be equally rejected by those whom it is intended to favor. I would state the case, as if it had happened between the gentleman and myself, could he hesitate to say the whole sum was fairly mine, and surrender it up, notwithstanding the legal interference of the Government? This is a question I would not suffer myself to reason upon; I would not trust my mind with it, lest it should preponderate in favor of self-interest, though against the common principles of truth and justice. I cannot think the army would accept the interposition; we ought, therefore, to be cautious how we trifle with the honor of other people. I do not pretend to say, that the persons intended to be relieved by the proposed scheme have not a claim against the United States; but I deny that it is a claim upon our equity or justice; it may be a claim upon our humanity; and, whether we will satisfy this claim, depends on circumstances which have no connection with the present question. Mr. JACKSON.--God forbid, Mr. Chairman, that I should trifle with the honor of men I value, and esteem so highly; it would be the last thing I could think of. But, sir, as a Legislator, I cannot consent that the pittance which was the reward of distinguished services, shall be torn from them by the arts of insidious speculators; but there are others, who have a claim in equity upon our justice, who ought not to be sacrificed to the soldier's honor. Mr. WHITE said he agreed with the gentleman from Massachusetts (Mr. SEDGWICK) in the principle, that if a contract is made for a valuable consideration, and with the understanding of both parties, the Legislature ought not to interfere in it; and should it appear that the transaction between the original holders of certificates and the purchasers was a fair one, the dispute, in his mind, was at an end. But no gentleman had attempted to show that this was the case, though all the arguments against a discrimination were founded on that supposition. Perhaps it might be said, that every argument ought to be considered as fair; unless the contrary be proved. But where one man has obtained the property of another to the amount of £100 for £10, or £12 10s. the transaction must be explained to him, before he would believe it to be honest. What is the present case? The original holders, who have parted with the evidences of their debts, were principally common soldiers, militiamen, and farmers in indigent circumstances. Who were the purchasers? The Secretary of the Treasury tells us, that the most enlightened among our citizens are the creditors of the United States; common soldiers cannot be comprehended in this description. What must have passed, he asked, between the soldier, the militiaman, or farmer, and the purchaser? What reason could the purchaser assign for offering £10 for a paper which specified an obligation to pay £100? It must be something like this--the States will never pay you; if they do, it will be at a very remote period, so long as to be useless to you; but to relieve your present necessities, I will take the risk on myself, and give you £10. Now, could any enlightened man, he asked, in 1783, or at any subsequent period, in which time the transfers took place, believe that the independence of America was in danger, or that the debts could not be provided for? He knew so many instances of transactions like that which he had stated, that he doubted not the greater part of the certificates had been obtained by similar means. Indeed he could not conceive any other by which they could be obtained. He said we were, perhaps, without a precedent in any other nation which would be strictly applicable; but he desired gentlemen to determine for themselves, whether, under such circumstances, the man who had rendered services to his country should be deprived of his reward, or whether the purchaser ought to receive it. He said it was very different in the common transactions of life. If a man purchased a tract of land for £1,000, paid the money, and took a bond for the conveyance, a third person, by informing the purchaser that the seller could not make a title, or by other false suggestions should obtain a transfer of the bond in consideration of £100, and get a conveyance and possession of the land, yet, on repaying the £100, the conveyance would be set aside, and he would be restored to his land. He gave some other instances of a similar nature, and said, he believed, if a bond, whether due, or to become due, was assigned under such circumstances, that the obligee would be justifiable in contesting it in a court of law, and that the injured person would, on application, obtain redress. He said, that in cases of extreme hardship, Courts of Equity would give relief without express proof of fraud; that this was the law of Great Britain, and was agreeable to the principles of the civil law; that the Roman jurists, he believed, had fixed the point of extreme hardship to one half of the value of the property transferred; in England the court was to judge. He said he did not think the present holders were strictly entitled to any thing more than the original purchasers; that here the maxim, quoted on the other side of the question, that the assignee stands in the shoes of the assignor, properly applied. You cannot place another on more advantageous ground than that on which you stand yourself. The plea of an innocent purchaser could not take place; the nature of the transaction must appear evident to every man concerned in the transfer. He said the reverse of this did not hold. An assignee was not always in as advantageous a situation as the assignor; and instanced the case of an executor who should obtain the assignment of his testator's bond at an undervalue; and who, he said, could not retain in his hands the amount of the sum specified in the bond, which the creditor might have recovered, but only the sum which he actually paid for the bond. He said, that, though in his opinion the present holders of certificates were strictly entitled to no more than what had been paid to the original holders, yet, as an investigation of that circumstance would be involved in inextricable difficulties, and since we were (as had been very properly observed and well expressed by a gentleman from South Carolina) settling the business of a family, he was willing to acquiesce in the motion of his colleague. He said, that arbitrators often gave the injured party less than his due, for peace sake; and he was willing to act on the same principle. He doubted not but courts of justice would give relief in particular cases; but in a matter of that magnitude, he thought the interference of the Legislature very proper. The South Sea business, he thought, in that respect, a good precedent. Two gentlemen had mentioned the business; he would not say they had misstated the transaction, but he thought their accounts imperfect. They said they had the documents under their hands; he wished they had been read; he had them not, but would state from memory what he thought applicable to the case in question. The directors of the South Sea Company, by various arts, induced the people to give as high as £1,000 for £100 stock; in many instances the money was paid, in others it was contracted to be paid. A gentleman has said, that Parliament interfered, not to violate, but to perfect the contract: but what did Parliament do? They confiscated the estates of the directors, and applied the amount to the relief of those who had actually paid their money, and suspended suits against those who had not paid; and authorized the debtors to discharge their debts by the payment of ten per cent. on the real value of the stock subscribed for. But if he was wrong in supposing the present holders ought to stand in the place of the first purchasers, they could be considered only as having purchased, in market, a paper of indefinite value; if, then, they get the highest market price, they are not injured. He would now endeavor to obviate some of the objections to the measure, on account of its impracticability; and in general terms observed, that much greater pains had been taken to show the impracticability than the injustice of it. He said, if it was just, we ought to adopt it; and he did not doubt but the wisdom of the Legislature would be able to carry it into effect. Purchasers, he said, had been represented as the supporters of public credit; but he could not consider them in that light. The offering a tenth or an eighth part of the value of the bond of an individual would tend rather to blast his credit than to support it; it would have the same effect with respect to the public. He said he had lived long enough to be convinced that wise and great men, having the same object in view, often differ in opinion with respect to the means of accomplishing it; therefore, every proposition ought to be treated with candor and respect. He made that observation in consequence of what passed yesterday. A gentleman from Massachusetts had introduced his speech in a manner somewhat new--with an apology for an impropriety which he _intended to commit_. He pursued the arguments of those who went before him, in opposition to the amendment; but his speech consisted principally in an effusion of opprobrious epithets, some of which he repeated, and said, to detail the whole would perhaps fill half a column of a newspaper. He said he felt, on the occasion, not for himself, for he had not expressed his sentiments on the subject under debate, but for the honor of the House, in which, he thought, no such language ought to be used. It had been said we came forward as volunteers; that the original holders did not put in their claim. That might be easily accounted for; they were generally obscure and indigent; had too much modesty, or perhaps not the capacity, to come forward. That he believed the crowd in the gallery did not consist of original holders. Mr. HARTLEY.--I do not wish to trespass upon the time of the committee, but I cannot consent to give a silent vote on this occasion. I mean, however, to confine myself to a few observations, as many of my ideas have been communicated by other gentlemen. The honorable gentleman from South Carolina (Mr. SMITH) has anticipated much of what I had to urge; I shall therefore reduce my view of the subject to two points; first, as to the justice or legality of the measure, in obliging a creditor, or assignee, to take less than a certificate expresses, and pay the difference to another: second, as to the practicability or policy of the motion and its consequences. As to making further satisfaction to the officers and soldiers of the late army, who have sold their certificates for an inconsiderable sum, and who have in consequence reaped a less reward than the Government contracted for, and intended them, I conceive it has nothing to do with the present question. However, if there is a disposition in Congress to make a further compensation to those brave and meritorious men, I would be among the first to support the measure; but I think this a subject too momentous to be involved collaterally in the question now under consideration. With respect to the first point that offers itself, I have to remark, that a man who enters into a contract should know the consideration, and understand the principles upon which it is made, and these should be expressed on the face of the evidence of the contract. Now, if this contract be of a negotiable nature, the person to whom the same is offered, looks on its face, from which it discovers the _agrementum_, and is naturally led to consider the circumstances of the debtor, his ability and integrity. Suppose even the evidence of the contract to be obtained by fraud, unless it be against the express provision of a statute, and is transferred to a third person for a valuable consideration, without notice of fraud, it, must be paid. A fraud in any link of the chain is corrected by a _bona fide_ transfer for a valuable consideration, without a knowledge of that circumstance by the purchaser. Now, let us apply these principles to the present case. Here is an instrument of writing, specifying a debt to be due from the United States to the original holder, or bearer; this being brought into market, is offered to a third person, he, before his purchase, sees that the contract was executed in consequence of a consideration, and not against any positive statute; he then inquires the ability of the Union, and its disposition to comply with the contract; and, from a consideration of these circumstances, he concludes, with respect to his own interest and safety in the purchase, and pays what is conceived to be the value. What is there to discharge the Government from the payment? Is it pretended that the services and supplies were an inadequate compensation? If it even was so supposed, it would not authorize us to refuse a compliance with our engagements; any interference would set afloat the great principle upon which the public tranquillity and happiness depend. This leads me to consider the subject in my second point of view, with respect to its policy and practicability, and the consequences that would result from the attempt. There are but few original holders who have transferred, that can be found; of consequence, you would throw the major part of the debt into an intricate labyrinth. The present possessor would be shifting back the certificate to the original holder, as far as a latitude is given. Many persons who were bare trustees, would be reaping advantages, and drawing money from the Public Treasury, to which they are not entitled; oaths would be multiplied on oaths; perjuries on perjuries; fraud upon fraud; and every species of speculation would ensue; deception would be a strong trait in the character of the times, and the whole of the United States would be in motion, each endeavoring to prey upon the other. The consequences of a second inundation of this nature are to be dreaded, and ought to be carefully avoided. Mr. MOORE observed, that it was agreed on all hands, and proposed in the report of the Secretary, that some discrimination ought to take place. It was, therefore, incumbent on the House to inquire how this might be effected with the greatest degree of equity. He supposed the result would be, that we are at liberty to pay the most meritorious first. Who constituted this class of citizens? He trusted the late army had an incontrovertible title to it. He could never believe that the men who stripped the soldiers of their hard earnings, by allowing them a tenth of their claim, would have the temerity to pretend that they had acquired the title of merit with their money, and that the soldier relinquished, with his certificate, the honor of his corps. Had the present question been agitated in the hour of distress, when an army was essential to our defence, the arguments of justice and equity would have had their weight. Perhaps it is the soldier's misfortune, that the question arises at a time when the object for which he was employed is secured. But notwithstanding all that has been said, I am fully convinced that his claim is insuperable in equity. The soldier did not engage to fight your battles to be compensated with a certificate, acknowledging you were indebted to him; it was specie you promised, and specie he had a right to expect, or something equal to it in reality. The public faith was actually pledged to him for a compensation for his services; but will any one say the public faith was inviolably kept with him, when a certificate, worth but two shillings in the pound was forced upon him as specie? The poor soldier, thus situated, was followed by gangs of speculators, who endeavored to impose on his judgment by the relation of artful and insidious opinions of the public capacity and integrity in the discharge of these acknowledgments. The soldier, incapable of detecting the specious falsehood, swallows the bait, and becomes the easy prey of designing men. The people felt and resented the injuries thus perpetrated on those they esteemed; and I am much mistaken if the citizens of America do not still retain favorable impressions of the soldiers' services. A great deal has been said, with respect to public opinion on this question. It is impossible, perhaps, to ascertain the public mind with precision; but there is but one way in our power, that is, to suffer the subject to be suspended for the present session, and on our return, or the election of our successors, the public sentiment in this respect will be evinced; but if we are to determine the public mind from our own observation, I should not hesitate to say that nine out of ten would be in favor of a discrimination. The people would, on this principle, I conceive, submit cheerfully to the payment of those taxes which are requisite to discharge the public engagements; but if they are to flow into the large cities, or into the hands of foreigners, who have speculated upon the misfortunes of the most meritorious class of our citizens, they will bear the burthen with murmurs and complaints. Can any principle of justice demand the payment of the present possessor of a certificate, that does not apply more forcibly as it respects original holders? Will gentlemen, then, comply with the one, and neglect the other? Or rather, as my colleague has proposed, if they are incapable to pay both, will they not prefer a composition? Mr. WADSWORTH.--It appears to me that we have mistaken this business from the beginning, for we are proceeding as if it was taken for granted that all those who had alienated their certificates, have been compelled to it by necessity; there is nothing further from the truth. So far as it respects the army debt it may be just; and at this moment, were a soldiery to be paid in certificates, they would part with them at as great a discount as ever. There is a disposition in soldiers generally to despise pecuniary considerations; if they want money, they will dispose of their property at an inconsiderate value to obtain it. But this remark does not extend to the industrious part of the public creditors, because they have carefully retained the evidences of their debt, and now will receive its value. But even of the army, it is not true that they will suffer the loss of the discount at which their certificates have been sold. Having an opportunity of being well acquainted with the circumstances of the army, I know that many of the officers lived upon their friends, who supported them from time to time, with such sums as they had occasion for, and when they retired from the army, they repaid their friends with the certificates which they had received. The best way for gentlemen to ascertain the amount of the public debt which has been transferred from necessity, is to mix in the world, and try, from the circle of their acquaintance, to learn what the actual transfers have been. I have done this, and am conscious within myself, that seven-eighths of all the alienated debt has not been disposed of by the original holder from necessity. When the requisitions of Congress were rejected by the State Assemblies, some of the most wealthy persons of the community, and those most violently opposed to Continental measures, seemed to concur in the opinion, that the States would never raise a revenue for the purpose of paying the domestic debt. The people finding this a prevailing opinion, were impressed with a dread of its consequences, and sold this species of negotiable property at a rate dictated by their apprehensions. I should conceive it as a great evil, if the Government were now to restore to such persons what they lost for want of confidence. I think this circumstance will operate considerably against the gentleman's principle of equity; now, as to the practicability of the measure, those gentlemen who are acquainted with the history of the manner in which the public debt was contracted, will readily agree with me, that it is an insuperable objection. In the years 1776 and 1777, very few advances were made to those who procured supplies to the public; they purchased what they got generally upon credit, and they were obliged, before their accounts could be settled, and they could get their money from the Public Treasury, to get receipts for all the articles they had furnished, and then they received orders upon the loan-officers, who, not having money, paid them in certificates, which these people, in return, paid over to those who furnished them with supplies. So that the agent appears a creditor to a very considerable amount, when his personal claim is very trifling, and those who risked their property, without pay of any kind, and who are undoubtedly deserving of some credit, appeared to be no other than speculators in public securities. I cannot see, in this case, any possible mode of discrimination. There are a variety of other official transactions which would demonstrate the impracticability, if it was necessary to oppose the proposition on that ground. WEDNESDAY, February 17. _Public Credit._ The House again went into a committee on the report of the Secretary of the Treasury, Mr. BALDWIN in the chair. Mr. MADISON's proposition still under consideration. Mr. PAGE.--I do not wish to trouble the committee with a formal argument in favor of the motion offered by my colleague; but I wish to inquire of the gentlemen in opposition, whether they conceive the principles upon which it is grounded to be unjust? I observed, that their replies have generally gone against the practicability of the measure; but that does not prove to me that it is inequitable. If there is justice in the case, we must not consider the difficulty of the attempt. I trust, if it shall be found to stand on the foundation of immutable justice, that its practicability will be demonstrated. However, I shall not enter on that ground, but leave it to my colleague, who has so ably supported it on the other. I would, however, beg gentlemen to answer these questions, and show to my mind the injustice of the United States complying with their engagements made to the first holders of certificates, as far as the case, and their abilities, will permit. Or where is the justice of doing more for the assignee than he, or his assignor, expected could or would be done? Where is the breach of faith in Government, if it pays its whole debt, with a justice, blended with mercy, resembling that of Heaven itself, making impartial retribution among the children of men, on the great day of accounts? Where is the propriety of branding a measure of this nature with epithets of infamy? or using such harsh expressions as have issued like a torrent from a gentleman on the other side of the House? So far am I from viewing the propositions through such a discolored medium, that I am induced to believe, if Congress adopt it, they may submit its rectitude, and stand the decision, of not only a superior order of beings, but of the Great Judge of the Universe, who is immutable truth itself. What will the assignee lose by the measure? He will lose nothing, but the sanguine expectation lately raised in his mind. Where is the interference in contracts, when the proposition is to comply sacredly, as far as the case will admit, with the contract between the State and its creditors? Is not the assignment of the certificates confirmed by the nation? Does it not give to the assignee the very thing stipulated between the assignor and assignee, that is, whatever sum the Government shall be pleased to pay for the certificate? And is not the sum now proposed, more than either the first or last assignee ever contemplated, till within a few days past, would ever be paid him? The time is now arrived when justice ought to be done; it is looked for, with anxious expectation, by all classes of our fellow citizens; it will not avail us to say, it is impracticable, until experience has demonstrated it to be so. But the measure we contend for is termed an _ex post facto_ law, and as such, is declared to be unconstitutional. Gentlemen torture every thing, in order to produce evidence against an act of justice. How can it be such an _ex post facto_ law as is prescribed by the constitution, when that expression is conjunctive with a bill of attainder? It relates to that only, and can have no reference to the subject of the proposition before us. The same idea, which prevents us from an interference on the present occasion, will prevent us, as was observed by the gentleman from Georgia, from making a statute of limitation, or from correcting any frauds, which have been perpetrated on the unsuspicious soldiery. We must not contemplate the restoration of the starving soldier, with his humble wife and numerous and naked offspring, to a more eligible situation; we must not restore confidence to the man of honor who is buried in abject poverty, because it is addressing a language to the heart, which the haughtiness of the head disdains to hear; but, in doubtful cases of justice, the heart is the best director on this subject; happy will it be for us, if, as I think, they both concur to give their approbation to the present measure. THURSDAY, February 18. _Public Credit._ The House again went into a committee on the Secretary of the Treasury's report, Mr. BALDWIN in the chair. Mr. MADISON's proposition still under consideration. Mr. STONE.--I shall not attempt to show the importance of the subject before us, as it relates to public credit; or as it will affect our character as a nation, at home and abroad. These have been explained; but it is proper for us to consider how far the amendment may operate to establish a precedent of Continental and State Legislation, the influence it may have on society, and the rules of civil conduct between man and man. Every community must experience that the conduct of the Government will influence the opinions of the individuals; and the spirit of the individual will transfuse itself into the Government. This action and reaction operates more powerfully in a Republican Government, founded on representation, than on any other. Our situation is made more important, on the present occasion, by a disagreement on principles which ought to be fixed and plain; to me it seems that we differ on the principle of public justice. This may be unfortunate--let us endeavor to be reconciled. If the true distinction between natural and civil justice be accurately drawn, we may annihilate the point in contest. Agreeably to the principle of natural justice, no contract is perfect unless there be an equivalent; and that which we call a valuable consideration, on which to ground a contract, is founded on the idea of an equivalent, and presupposes it. And, I believe the idea of such a consideration being an equivalent, is the foundation of the validity of a contract, even in the English law; and is always carried into effect, wherever the execution is safe and certain; because I think, whenever it appears in any court of justice, that the consideration was not an equivalent, that then the contract is not carried into execution. The execution of the principle of natural justice then is safe; for instance, £99 19_s._ 11_d._ is not a consideration for £100, but a small sum may be a consideration for a valuable property; this does not arise from an infraction of the principle; but because the property may not have a determinate value in the society; and it would make judges arbitrary, legal proceedings extremely expensive, and contracts uncertain, if an extensive discretion as to the value was admitted. But whenever the consideration is so small and inadequate, as to appear so plainly and satisfactorily that the judge cannot be mistaken in determining it not to be an equivalent, there the contract is not valid. Now, if we have received services from the soldier, and have given him paper, the question will be, whether that was an equivalent, and the paper a proper payment; or whether it is only an evidence of the debt? I take it to be a granted point that it was not a payment, but an obligation to pay whenever the United States should be able. It appears to me, then, that it was the duty of the person who received the paper, to wait a reasonable time; and the duty of the nation to make actual payment as speedily as possible. If the person who had received this paper had wantonly parted with it for nothing, I agree we should have been under no more obligation to pay him the expressed sum, than if we had paid him money, and he had flung it away or wasted it; but if, on the contrary, there was a delay in the execution of the contract, on the part of the Government, which compelled him to part with it, a compensation is equitable. The same rule will apply between the original holder, or person who rendered the service, and present possessor or assignee; for shortness we will distinguish them by the names of soldier and speculator. The speculator, when he dealt with the soldier, must, from the nature of the thing, have induced him to believe that he gave him an equivalent for his purchase; and it might have been an inducement to the soldier to sell, to think he had something more than an equivalent; the speculator thought he had more than an equivalent, throwing necessity on the one side, and fraud on the other, out of the question. Then the confidence was equal, perhaps not a penny between them: I can hardly conceive the exchange took place on any other terms. You never can allow the confidence of the speculator to be estimated very highly, perhaps at not more than one for ten. For if it is admitted, that the speculator had entire confidence, he was guilty of a palpable fraud, and a violation of the first principle of justice; it amounted to this, that he gave £10 in money for £100 bond, which he was certain would be paid. I believe, if the case stood exactly in this form, no man would hesitate in deciding its illegality. If a man takes £100 for £10, it is illegal; but suppose there was a risk, and this risk was considered by the speculator as little less than ten for one, has he not discovered his own mistake when he sees he gets an interest of sixty per cent. on his capital; and that capital tenfold? This contract then ought to be void on the principle of a mistake; and here you place the speculator between Scylla and Charybdis. If he really thought the certificates only worth one for ten, you can give him no credit for his confidence; and you will admit that he ought to be satisfied with a reasonable advance on his purchase. But if you give him entire credit for his confidence in Government, you must give him no credit for his honesty. If both parties had known of this event, the contract would never have taken place. If you pay the whole sum, the speculator ought to take no more than what he gave a fair equivalent for. Gentlemen who seem afraid of giving to the soldier a part of his original claim, lest they affront his nobleness of soul, make no scruple to offer the speculator ten times the sum he is entitled to, on the principle of natural justice, without any apprehension that his honor will receive a wound. If the claim of the soldier was extinguished by receiving two shillings in the pound of the speculator, upon what principle is it contended that the latter should receive more than distributive justice? Arguments, proving that the justice due to the first has been satisfied by what has been done, apply with greater force to the latter. It has been doubted, and a question has been agitated, whether we shall exercise the power of reconsidering these contracts, and whether a modification is constitutionally in our power? I will not go into this subject, or any other which ought to be taken for granted. I shall take it, that we are authorized, and do mean to interfere; you must act. Do you mean to pay the principal and interest now due? I believe not. Will you shelter yourself under the plea of necessity? That is impossible. I dare say, if the United States were sold, they would at least be worth six hundred millions of dollars; and we have but eighty millions to provide for. Having, then, the means and power, I trust you mean to exercise them; and as you exercise them, you ought to exercise them as justly as possible; then, to do this, you will, it is said, personify the three parties concerned--the United States, the original holder, and the speculator. I do not clearly comprehend the idea of a personified State; perhaps it arises from my dulness of apprehension. Man, in his natural capacity, is sometimes obliged to do what is considered unjust; but a State, when it has power, is not obliged to do what is unjust. The State, then, in this respect, is doing what an honest man would do, if he had the power of conducting this business as he thought proper. The speculator comes to you with his bond, and tells you it is due. The soldier tells you that he has done services to a considerable amount, for which he never has been paid; and that those evidences of the demand which you gave to him, were obtained from him, for one-tenth part of what they were declared to be worth. The State says to the speculator, you have made a great deal, and out of a man who has risked his life, and borne every burthen which human nature could bear, with the greatest fortitude which the most virtuous heart is capable of exerting, let him have a part back. The speculator answers no; here is your bond. Consider again, replies the State, that the veteran's services, at the expense of his health and property, at the risk of his life, has saved you and yours; and not only that, but he is obliged to pay of your demand, more than he has ever received. What is now his answer? Here is the bond, pay me my bond. Under these circumstances, supposing the State an individual, he might, without much infamy to his character, exercise the power which he has over his own bond, in order to do justice between the parties. He might say to the speculator, you had the soldier in your power; you did him injustice; we have you now in our power, we will do you complete justice, but no more. A private man could never be injured in his reputation by such conduct: indeed, according to the result of these circumstances, the hardships of war, and the breach of contract, have unfortunately inflicted upon the man, the most meritorious in this community, or perhaps in any other community, sufferings and miseries--a punishment sufficient to atone for the guilt of the greatest crimes. This, in the event, appears to be the situation of the saviors of America. Mr. _Madison_ said that the opponents of his proposition had imposed on its friends not only a heavy task, by the number of their objections, but a delicate one by the nature of some of them. It had been arranged as an embarrassing measure which ought to be facilitated, and producing discussions which might end in disagreeable consequences. However painful it might be to contradict the wishes of gentlemen whom he respected, he could promise nothing more, in the present case, than his endeavors to disappoint their apprehensions. When his judgment could not yield to the propositions of others, the right to make and support his own, was a right which he could never suffer to be contested. In exercising it, he should study to maintain that moderation and liberality which were due to the greatness of the subject before the committee. He felt pleasure in acknowledging, that the like spirit had, in general, directed the arguments on the other side. Free discussions thus conducted are not only favorable to a right decision, but to a cheerful acquiescence of the mistaken opponents of it. They might have the further advantage of recommending the result to the public, by fully explaining the grounds of it. If the pretensions of a numerous and meritorious class of citizens be not well founded, or cannot be complied with, let them see that this is the case, and be soothed, under their disappointment, with the proof that they have not been overlooked by their country. He would proceed now to review the grounds on which the proposition had been combated; which he should do without either following those who had wandered from the field of fair argument, or avoiding those who had kept within its limits. It could not have escaped the committee, that the gentlemen to whom he was opposed, had reasoned on this momentous question as on an ordinary case in a court of law; that they had equally strained all the maxims that could favor the purchasing, or be adverse to the original holder; and that they dwelt with equal pleasure on every circumstance which could brighten the pretensions of the former, or discredit those of the latter. He had not himself attempted, nor did he mean to undervalue the pretensions of the actual holders. In stating them, he had even used as strong terms as they themselves could have dictated; but beyond a certain point he could not go. He must renounce every sentiment which he had hitherto cherished, before his complaisance could admit that America ought to erect the monuments of her gratitude, not to those who saved her liberties, but to those who had enriched themselves in her funds. All that he wished was, that the claims of the original holders, not less than those of the actual holders, should be fairly examined and justly decided. They had been invalidated by nothing yet urged. A debt was fairly contracted; according to justice and good faith, it ought to have been paid in gold or silver; a piece of paper only was substituted. Was this paper equal in value to gold or silver? No. It was worth, in the market, which the argument for the purchasing holders makes the criterion, no more than one-eighth or one-seventh of that value. Was this depreciated paper freely accepted? No. The Government offered that or nothing. The relation of the individual to the Government, and the circumstances of the offer, rendered the acceptance a forced, not a free one. The same degree of constraint would vitiate a transaction between man and man, before any Court of Equity on the face of the earth. There are even cases where consent cannot be pretended; where the property of the planter or farmer had been taken at the point of the bayonet, and a certificate presented in the same manner. But why did the creditors part with their acknowledgment of the debt? In some instances, from necessity; in others, from a well-founded distrust of the public. Whether from the one, or the other, they had been injured; they had suffered loss, through the default of the debtor; and the debtor cannot, in justice or honor, take advantage of the default. Here, then, was a debt acknowledged to have been once due, and which was never discharged; because the payment was forced and defective. The balance, consequently, is still due, and is of as sacred a nature as the claims of the purchasing holder can be; and if both are not to be paid in the whole, is equally entitled to payment in part. He begged gentlemen would not yield too readily to the artificial niceties of forensic reasoning; that they would consider not the form, but the substance--not the letter, but the equity--not the bark, but the pith of the business. It was a great and an extraordinary case; it ought to be decided on the great and fundamental principles of justice. He had been animadverted upon, for appealing to the heart as well as the head; he would be bold, nevertheless, to repeat, that, in great and unusual questions of morality, the heart is the best judge. It had been said, by a member from Massachusetts, that the proposition was founded on a new principle in Congress. If the present Congress be meant, that is not strange, for Congress itself is new; if the former Congress be meant, it is not true, for the principle is found in an act which had been already cited. After the pay of the army had, during the war, been nominally and legally discharged in depreciated paper, the loss was made up to the sufferers. It had been said, by a member from New York, that this case was not parallel, there being no third party like the present holders of certificates. This objection could not be valid. The Government paid ten dollars' worth in fact, but only one to the soldier. The soldier was then the original holder. The soldier assigned it to the citizen; the citizen then became the actual holder. What was the event? The loss of the original holder was repaired, after the actual holder had been settled with, according to the highest market value of his paper. He did not mean, however, to decide on the whole merits of this last transaction; or to contend for a similitude, in all respects, between the two kinds of paper. One material difference was, that the bills of credit, by more frequent transfers, and by dividing the change of value among a greater number of hands, rendered the effect of less consequence to individuals, and less sensible to the public mind. But this difference, whatever force it might give to the claims of the purchasing holder of certificates, could diminish nothing from the claims of the original holders who assigned them. It had been said, by another member from Massachusetts, that the old Government did every thing in its power. It made requisitions, used exhortations, and in every respect discharged its duty; but it was to be remembered, that the debt was not due from the Government, but the United States. An attorney, with full powers to form, without the means to fulfil engagements, could never, by his ineffectual, though honest efforts, exonerate his principal. He had been repeatedly reminded of the address of Congress in 1783, which rejected a discrimination between original and purchasing holders. At that period, the certificates to the army, and citizens at large, had not been issued. The transfers were confined to loan-office certificates, were not numerous, and had been, in great part, made with little loss to the original creditor. At present, the transfers extend to a vast proportion of the whole debt, and the loss to the original holders has been immense. The injustice which has taken place has been enormous and flagrant, and makes redress a great national object. This change of circumstances destroys the argument from the act of Congress referred to; but if implicit regard is to be paid to the doctrines of that act, any modification of the interest of the debt will be as inadmissible as a modification of the principal. It had been said, that if the losses of the original creditors are entitled to reparation, Congress ought to repair those suffered from paper money--from the ravages of the war, and from the act of barring claims not produced within a limited time. As to the paper money, either the case is applicable, or it is not: if not applicable, the argument fails; if applicable, either the depreciated certificates ought to be liquidated by a like scale, as was applied to the depreciated money; or the money, even if the whole mass of it was still in circulation, ought to be literally redeemed, like the certificates. Leaving the gentleman to make his own choice of these dilemmas, he would only add, himself, that if there were no other difference between the cases, the manifest impossibility of redressing the one, and the practicability of redressing the other, was a sufficient answer to the objection. With respect to the towns burnt, and other devastations of war, it was taught, by the writers on the law of nations, that they were to be numbered among the inevitable calamities of mankind. Still, however, a Government owed them every alleviation which it could conveniently afford; but no authority could be found that puts on the same footing with those calamities, such as proceed from a failure to fulfil the direct and express obligations of the public. The just claims barred by the act of limitation, were, in his opinion, clearly entitled to redress. That act was highly objectionable. The public, which was interested in shortening the term, undertook to decide, that no claim, however just, should be admitted, if not presented within nine months. The act made none of the exceptions usual in such acts, not even in favor of the most distant parts of the Union. In many instances, it had been absolutely impossible for the persons injured to know of the regulation. Some of these instances were within his own knowledge. To limit the duration of a law to a period, within which it could not possibly be promulged, and then take advantage of the impossibility, would be imitating the Roman tyrant, who posted up his edicts so high that they could not be read, and then punished the people for not obeying them. It has been said, that if the purchased certificates were funded at the rate proposed, they would fall in the market, and the holders be injured. It was pretty certain, that the greater part, at least, would be gainers. He believed that the highest market price, especially with the arrears of interest incorporated, well funded at six per cent, would prevent every loss that could justify complaint. But foreigners had become purchasers, and ought to be particularly respected. Foreigners, he remarked, had themselves made a difference between the value of the foreign and domestic debt; they would, therefore, the less complain of a difference made by Government here. It was his opinion that the term stated in the proposition would yield a greater profit to the foreign purchasers than they could have got for their money if advanced by them in any of the funds of Europe. The proposition had been charged with robbing one set of men to pay another. If there were robbery in the case, it had been committed on the original creditors. But, to speak more accurately, as well as more moderately, the proposition would do no more than withhold a part from each of two creditors, where both were not to be paid the whole. A member from New York has asked whether an original creditor, who had assigned his certificate, could, in conscience, accept a reimbursement in the manner proposed? He would not deny that assignments might have been made with such explanations, or under such circumstances, as would have that effect; but, in general, the assignments have been made with reference merely to the market value, and the uncertainty of the steps that might be taken by the Government. The bulk of the creditors had assigned under circumstances from which no scruples could arise. In all cases where a scruple existed, the benefit of the provision might be renounced. He would, in turn, ask the gentleman, whether there was not more room to apprehend that the present holder, who had got his certificate of a distressed and meritorious fellow-citizen for one-eighth or one-tenth its ultimate value, might not feel some remorse in retaining so unconscionable an advantage? Similar propositions, it was said, had been made and rejected in the State Legislatures. This was not a fact. The propositions made in the State Legislatures were not intended to do justice to the injured, but to seize a profit to the public. But no petitions for redress had come from the sufferers. Was merit, then, to be the less regarded, because it was modest? Perhaps, however, another explanation ought to be given. Many of the sufferers were poor and uninformed. Those of another description were so dispersed, that their interests and efforts could not be brought forward. The case of the purchasing holders was very different. The constitutionality of the proposition had been drawn into question. He asked whether words could be devised that would place the new Government more precisely in the same relation to the real creditors with the old? The power was the same; the obligation was the same. The means only were varied. An objection had been drawn from the article prohibiting _ex post facto_ laws. But as _ex post facto_ laws relate to criminal, not civil cases, the constitution itself requires this definition, by adding to a like restriction on the States an express one against retrospective laws of a civil nature. It had been said, that foreigners had been led to purchase, by their faith in the article of the constitution relating to the public debts. He would answer this objection by a single fact: Foreigners had shown, by the market price in Europe, that they trusted the nature of foreign debt more under the old Government, than the nature of the domestic debt under the new Government. Objections to the measure had been drawn from its supposed tendency to impede public credit. He thought it, on the contrary, perfectly consistent with the establishment of public credit. It was in vain to say, that Government ought never to revise measures once decided. Great caution on this head ought, no doubt, to be observed; but there were situations in which, without some legislative interposition, the first principles of justice, and the very ends of civil society, would be frustrated. The gentlemen themselves had been compelled to make exceptions to the general doctrine; they would probably make more before the business was at an end. It had been urged, that if Government should interpose in the present case, as interposition would be authorized in any case whatever where the stock might fluctuate, the principle would apply as well to a fall of sixty or seventy per cent. as to a fall of six hundred or seven hundred per cent. He could not admit this inference. A distinction was essential between an extreme case, and a case short of it. The line was difficult to be drawn; but it was no more incumbent on him than on his opponents to draw it. They themselves could not deny that a certain extremity of the evil would have justified the interposition. Suppose that the distress of the alienating creditors had been ten times as great as it was; that instead of two, three, and four shillings in the pound, they had received a farthing only in the pound; and that the certificates lay now in the hands of the purchasers in that state, or even at a less value, was there a member who would rise up and say, that the purchasers ought to be paid the entire nominal sum, and the original sufferer be entitled to no indemnification whatever? Gentlemen had triumphed in the want of a precedent to the measure. No government, it was said, had interposed to redress fluctuations in its public paper. But where was the government that had funded its debts under the circumstances of the American debt? If no government had done so, there could be no precedent either for or against the measure, because the occasion itself was unprecedented. And if no similar occasion had before existed in any country, the precedent to be set would at least be harmless, because no similar occasion would be likely to happen in this. If gentlemen persisted, however, in demanding precedents, he was happy in being able to gratify them with two, which, though not exactly parallel, were, on that account, of the greater force, since the interposition of Government had taken place where the emergency could less require them. The first was the case of the Canada bills. During the war which ended in 1763, and which was attended with a revolution of the Government in Canada, the supplies obtained for the French army in that province were paid for in bills of exchange and certificates. This paper depreciated, and was bought up chiefly by British merchants. The sum and the depreciation were so considerable as to become a subject of negotiation between France and Great Britain at the peace. The negotiations produced a particular article, by which it was agreed by France that the paper ought to be redeemed, and admitted by Great Britain that it should be redeemed at a liquidated value. In the year 1766 this article was accordingly carried into effect by ministers from the two courts, which reduced the paper in the hands of the British holders, in some instances, as much as seventy-five per cent. below its nominal value. It was stated, indeed, by the reporter of the case, that the holders of the paper had themselves concurred in the liquidation; but it was not probable that the concurrence was voluntary. If it was voluntary, it shows that they themselves were sensible of the equity of the sacrifice. The other case was of still greater weight, as it had no relation to war or treaty, and took place in the nation which has been held up as a model with respect to public credit. In the year 1713, the civil list of Great Britain had fallen into arrears to the amount of £500,000. The creditors who had furnished supplies to the Government had, instead of money, received debentures only from the respective officers. These had depreciated. In that state, they were assigned in some instances; in others, covenanted to be assigned. When the Parliament appropriated funds for satisfying these arrears, they inserted an express provision in the act, that the creditors who had been obliged, by the default of Government, to dispose of their paper at a loss, might redeem it from the assignees by repaying the actual price, with an interest of six per cent., and that all agreements and covenants to assign should be absolutely void. Here then was an interposition on the very principle, that a Government ought to redress the wrongs sustained by its default, and on an occasion trivial when compared to that under consideration; yet it does not appear that the public credit of the nation was injured by it. The best source of confidence in Government was the apparent honesty of its views. The proposition could not possibly be ascribed to any other motive than this, because the public was not to gain a farthing by it. The next source was an experienced punctuality in the payments due from the Government. For this support to public credit, he relied on what had been experienced by a part of the foreign creditors; on the provision to be made for the residue; and on the punctuality which, he flattered himself, would be observed in all future payments of the domestic creditors. He was more apprehensive of injury to public credit from such modifications of the interest of the public debt as some gentlemen seemed to have in view. In these the public would be the gainer, and the plea of inability the more alarming, because it was so easy to set up, so difficult to be disproved, and for which, consequently, the temptations would be so alluring. Mr. SENEY rose and observed, that it was with reluctance he attempted to express to the committee his ideas upon a question which had been so fully and ably discussed. However, as it had been expected that gentlemen would not, in a case of such magnitude, be content with merely a silent vote, he rose to declare the reasons upon which his decision was founded. In doing this, he hoped that he should not use epithets which might be deemed harsh, or language which would be offensive; that although the sentiments of other members should differ from his, he wished so far to respect those sentiments as to treat them with decency. He considered the proposition of the gentleman from Virginia (Mr. MADISON) was designed to effect two purposes: the one, a compensation to the original creditors, who, during the late war, in times of distress, had loaned money, furnished supplies, and rendered military services; and who had only received satisfaction therefor in paper of inconsiderable value, forced on them by the public, and depreciated by their acts. This class of citizens, he conceived, had a just and equitable claim for the full difference in value between that paper, when paid, and specie. The other object of the proposition alluded to, was, he said, to compensate those creditors who now hold alienated certificates. Each description of those creditors had, in his opinion, claims on the public. The first was founded on an original contract between them and the Government, part of which only had been complied with, and the residue still remained undischarged. The other was grounded on having possession of the paper which contained the promise to pay. It has been contended that the United States have not ability to pay both. In this case a question arises: What is, upon the whole, most just and expedient? Some gentlemen contend, that it is incumbent on us to make full provision for those who hold the assigned certificates, without any for the original creditors who have alienated them. Others think, that the misfortune of Government, in this respect, should not be felt by either class solely, but be borne by both. That it is more just to adopt a mode of composition, by which those creditors should mutually share in this misfortune, and be mutually benefited by a provision within our power to make; with those his sentiments accorded. He could not be impressed with the justice or reason of a measure calculated to make a total sacrifice of one class of creditors, and full payment to the other class. Such a step could not, in his opinion, be justified in any distinction or precedence which existed in their claims. When it was considered that the original creditors furnished money and supplies, and rendered services essential to the preservation of their country, and at a time when its liberties were invaded, and every thing which can be dear to freemen was in jeopardy and at stake, he could not apprehend that their claims would be deemed inferior to those of their rivals. In his opinion, these circumstances entitled them to superior notice. Believing, however, that the amendment under consideration would, upon the whole, effect more substantial justice than any other practicable scheme that had been proposed to the committee, or which he had heard of, his assent would, therefore, be given to it. TUESDAY, February 19. _Public Credit._ The House again went into a committee on the report of the Secretary of the Treasury, Mr. BALDWIN in the chair. Mr. MADISON's proposition still under consideration. Mr. LIVERMORE said he was against any discrimination between the soldier and other public creditor, who held a public security, made payable to bearer, and consequently transferable, with intent that they might be sold, if convenience or necessity should require it. This had been understood by all parties, as well in America as in foreign countries, and they had been sold accordingly. The advocates for discrimination have not denied this; they have only alleged that the low rate at which the poor soldier or other public creditor had sold his securities was a sufficient reason for Congress to interfere and set aside the sale. In opposition to this, he observed, that persons had a right to buy and sell at such prices as they could mutually agree upon, provided there was no fraud. A diamond, a horse, or a lot of ground, might be sold too cheap, or too dear, and so might any other property; but Government could not interfere without destroying the general system of law and justice. Esau had sold his birthright for a mess of pottage, and heaven and earth had confirmed the sale. The distresses of the army, both officers and soldiers, at the time they received and sold their securities, had been painted in too strong colors. They were not so emaciated by sickness and famine as had been represented. They were crowned with victory, and received with applause by their fellow-citizens; and although they had been paid in paper, their loss had been made up by large bounties, and in other emoluments; so that, in point of property, they were equal to their fellow-citizens who had borne the burden of taxes under which many are laboring to this day. Let them be called brave soldiers, patriotic soldiers, but not poor soldiers. They ought to be governed by the same system of justice that governs others; but their contracts ought not to be set aside out of partiality to them. The case quoted from the statute of Queen Anne is not applicable to this case, inasmuch as Government had not originally made the debentures therein mentioned transferable. Neither did the case of the Canada bills apply; for, as he understood, those bills were paid to British merchants and to others who had purchased them. Mr. MADISON.--If paper, or the honor of statues or medals can discharge the debts of justice, payable in gold or silver, we can not only exonerate ourselves from those due to the original holders, but from those of the assignees. So far as paper goes, the latter have received the compensation. If honor can discharge the debt, they have received civil honors; look around to the officers of every Government in the Union, and you find them sharing equal honors with those bestowed on the original creditors. But, sir, the debt due in gold and silver is not payable either in honor, appointments, or in paper. Gentlemen say it will work injustice; but are we not as much bound to repair the injustice done by the United States? Yet I do not believe the assertion has been established by any thing that has been urged in its support. The gentleman from Maryland (Mr. STONE) acknowledges that there is a moral obligation to compensate the original holders; how will they get what he admits is their due? He is willing to make an effort, by applying the resources of the country to that purpose; but if we are to judge by the sentiments of other gentlemen who have spoken on this occasion, we have little to expect from that quarter. Suppose the debt had depreciated to a mere trifle, and suppose the sale of the Western Territory had extinguished the certificates, let me ask, whether, if the United States had thus exonerated themselves from the obligation to the assignee, whether the claim of the original holder would not still remain in its full force in a moral view? But believing the point of justice to be exhausted, I will just add one remark upon the practicability. The transferred certificates, generally, will show the names of the original holders, and here there is no difficulty. With respect to those granted to the heads of either of the five great departments, the books of the Treasurer of Loans, as well as the accounts of those departments now in the Treasury, will designate, with a great degree of accuracy, and this may be followed up by the usual mode of obtaining evidence; and I believe every security may be provided against fraud in this case that was provided in the case of the commissioners who were sent into the respective States for ascertaining and liquidating the claims of individuals. That there will be some difficulty I admit, but it is enough for me that it is not insuperable; and I trust, with the assistance which the cause of equity and justice will ever obtain from the members of the National Legislature, they will easily be surmounted. MONDAY, February 22. _Public Credit._ The House then resolved itself into a committee on the Report of the Secretary of the Treasury, Mr. BALDWIN in the chair. Mr. MADISON's proposition still under consideration. Mr. PAGE.--As the worthy and eloquent member who replied to me did not answer the questions I put to the committee, I suppose, he either did not hear them, did not understand me, or could not answer them. I hope, before the committee decide, they will attempt at least to resolve them. I asked, where is the injustice of the State's complying with its engagements made to the first holders of certificates as far as the case admits? Where is the justice of doing more for the assignee than he or his assignor expected could or would be done? Where is the breach of faith in Government, if it paid its whole debt with justice, blended with mercy? Where is the interference in contracts, when the proposition is to comply sacredly, as far as the case will admit, with the contracts between a State and its creditors? I asked, is not the assignment of certificates confirmed by the motion? Does it not give to the assignee the very thing stipulated to be given, that is, whatever sum Government shall be pleased to pay for the certificates, for that was the condition of the assignment? And is not the sum now proposed more than either the first or last holder, till within these few days, supposed would be paid him? I asked also, ought not an honest assignee to be pleased that Government intends to do that justice to his assignor which he ought to do himself, were the whole payment made to him? I asked, of what is the assignee deprived but of his late sanguine expectations? I asked, whether the proposition before us does not rather establish confidence in Government than the contrary? For, sir, to make use of the comparison which has been often made here between the State and an obligor on a bond, what could give more credit to any man's bonds than to find that, though they had depreciated to half a crown in the pound, he paid the whole twenty shillings; ten shillings to the assignee, who had given but two shillings and sixpence, and ten to the obligee who had sold at so great a loss? It is true Congress may, consistently with the rules of common law courts, pay the bearer and take no notice of the creditors; but were a Court of Equity instituted to decide on the case of certain speculators, how would they decide? Government, in the most solemn manner, pledged itself to make compensation to the soldiers, have they done it? Instead of doing this, certain persons, who took advantage of their ignorance and their poverty, bought up the evidence of their debt at one-eighth of the nominal value; and in some States these very men had drawn what constituted the principal of the purchase with six per cent. interest in three years. In what does the case differ between the depreciated paper and the certificates? Paper money was redeemed at forty for one, as well to the last as the first holder; the same principle would lead to give the last holder of the certificate the depreciated value at which he bought it. But we propose to work no injustice, we give the first holder, if he is the holder still, the full value stipulated. It would not be injustice to consider the assignee, as having paid what he advanced, in consequence of his confidence in Government, on account of that Government; and that the Government ought to repay him what he so advanced; having repaid that sum, the balance ought to go to the credit of the assignee. I am willing, on this consideration, to call the speculator the friend and supporter of the Government, who kindly lent us when in need, two shillings and sixpence in every pound, to advance to the poor soldier. If certificates are the evidence of the debt, it proves, sir, that the balance is due to him in whose name it issued. This is the day of payment, and we must pay accordingly; and here permit me to remark, in reply to the observation of the gentleman from New Hampshire, (Mr. LIVERMORE,) that _Jacob_ was punished for his fraud, but for his faith enjoyed the promise; even so let us regard those who had so much confidence in us as to advance two shillings and sixpence to the distressed soldier. Mr. HEISTER was in hopes this question would be postponed for the present, in order to go into a consideration of the ways and means: when, if it appeared that the United States were incapable of making full provision, it might be considered, whether one deviation would not authorize the other? If any gentleman would make a motion to that effect, he would second him. The question was now taken on Mr. MADISON's proposition for a composition, and it passed in the negative; yeas 13, nays 36.[35] WEDNESDAY, March 17. _On Slavery._ The House again resolved itself into a Committee of the Whole on the Report of the committee, to whom was referred the memorial of the people called Quakers, &c., Mr. BENSON in the chair. The question of order was put, when it was determined that Mr. TUCKER's last amendment was not in order. The report was then taken up by paragraphs. The first proposition being read, Mr. WHITE moved that it be struck out. He did this, he said, because he was against entering into a consideration at this time of the powers of Congress. He thought it would be time enough for this when the powers are called in question. He then read the next, which he said was entirely unnecessary, as it contains nothing more than what is contained in express terms in the constitution. He passed on to the third, which he said was equally unnecessary; and to the fourth, which was provided for by the constitution. He said, that he should agree to the fifth and sixth, with certain modifications. Agreeable to this idea, he offered those two in a different form. He disagreed to the seventh proposition, as unnecessary and improper. He concluded by observing, that his wish was to promote the happiness of mankind--and among the rest those who are the objects of the present consideration--but this he wished to do in conformity to the principles of justice and with a due regard to the peace and happiness of others; he would contribute all in his power to their comfort and well-being while in a state of slavery; but he was fully of opinion that Congress has no right to interfere in the business, any further than he proposed by the two propositions as modified. He did not, however, anticipate the difficulties from a total prohibition which some gentlemen seem to apprehend--and if Congress had it in their power to interdict this business at the present moment, he did not think the essential interests of the Southern States would suffer. Twenty years ago, he supposed the idea he now suggested would have caused universal alarm. Virginia, however, about twelve years since, prohibited the importation of negroes from Africa, and the consequences apprehended never were realized; on the contrary, the agriculture of that State was never in a more flourishing situation. Mr. HARTLEY.--I have the honor to be one of the committee on the memorials, and will, with the leave of this committee, mention some particulars which took place in the course of the investigation of the business. He premised that he was sorry that the question of right had been brought forward yesterday--and was not a little surprised to hear the cause of slavery advocated in that House, and language held towards the petitioners which his experience had never shown to be Parliamentary--he read some memorandums taken in committee, and had particular reference to a law passed in Grenada, which he applauded for its humanity, and truly benevolent spirit. He reprobated the illiberal treatment which the memorialists had received, and asserted that they were friends to the constitution, and that on the present occasion they came forward from the most laudable motives, from a wish to promote the happiness of mankind; that their conduct, so far from meriting censure, deserved, and would receive, the applause of the civilized world. Mr. BROWN, in a considerable speech, advocated the motion of Mr. WHITE. He enlarged on the pernicious consequences that may be expected to flow from the interference of Congress; he pointed out the effects which had resulted from the interposition of the Quakers, by which the prospects of the Southern States in slaves had been rendered very precarious--and if Congress should adopt the report as it stands, the consequences would be pernicious in the highest degree. The negro property will be annihilated. The emancipation of slaves will be effected in time, it ought to be a gradual business; but he hoped that Congress would not, to gratify people who never had been friendly to the independence of America, precipitate the business to the great injury of the Southern States. Mr. BURKE entered into a very extensive consideration of the subject. He gave an account of the humane treatment which the slaves of the Southern States received, their habitations, families, children, privileges, &c. He then showed that their emancipation would tend to make them wretched in the highest degree. He animadverted with great freedom on the past and present conduct of the Quakers. He denied that they were the friends of freedom; he said, that during the late war, they were for bringing this country under a foreign yoke; they descended to the character of spies; they supplied the enemy with provisions; they were guides and conductors to their armies; and whenever the American army came into their neighborhood, they found themselves in an enemy's country. Mr. BURKE was proceeding in this strain, when he was interrupted by being called to order. A warm altercation ensued, and in the midst of it, a motion was made that the committee rise. This motion was negatived, and Mr. BURKE added a few more observations on the injustice of the measure of interference, as it respected the property of the Southern States. Mr. SMITH (of South Carolina) said he lamented much that this subject had been brought before the House; that he had deprecated it from the beginning, because he foresaw that it would produce a very unpleasant discussion; that it was a subject of a nature to excite the alarms of the Southern members, who could not view, without anxiety, any interference in it on the part of Congress. He remarked, that as they were resolved into a Committee of the Whole on the powers of Congress respecting slavery and the slave trade, in consequence of certain memorials from the people called Quakers and the Pennsylvania Society for the abolition of slavery, the whole subject, as well as the contents of these memorials, was under consideration. He should therefore enter into the business at large, and offer some comments on the contents of the memorial. The memorial from the Quakers contained, in his opinion, a very indecent attack on the character of those States which possess slaves. It reprobates slavery as bringing down reproach on the Southern States, and expatiates on the detestation due to the licentious wickedness of the African trade, and the inhuman tyranny and bloodguiltiness inseparable from it. He could not but consider it as calculated to fix a stigma of the blackest nature on the State he had the honor to represent, and to hold its citizens up to public view as men divested of every principle of honor and humanity. Considering it in that light, he felt it incumbent on him not only to refute those atrocious calumnies, but to resent the improper language made use of by the memorialists. Before he entered into the discussion, he begged to observe, that when any class of men deviated from their own religious principles, and officiously came forward in a business with which they had no concern, and attempted to dictate to Congress, he could not ascribe their conduct to any other cause but to an intolerant spirit of persecution. This application came with the worst grace possible from the Quakers, who professed never to intermeddle in politics, but to submit quietly to the laws of the country. He had met with a publication which came out in the year 1775, (at a period when the affairs of America were in a very desponding situation,) entitled "The ancient Testimony and Principles of the Quakers." It set forth that their religious principles restrained them from having any hand or connivance in setting up and putting down kings and governments; that this was God's peculiar prerogative for causes best known to himself; that it was not their business to be busybodies above their stations, but only to pray for the King and safety of their nation, that they might live a quiet and peaceable life, under the Government which God was pleased to set over them. If these were really their sentiments, why did they not abide by them? Why did they not leave that, which they call God's work, to be managed by himself? Those principles should instruct them to wait with patience and humility for the event of all public measures, and to receive that event as the Divine will. Their conduct on this occasion proved that they did not believe what they professed, or that they had not virtue enough to practise what they believed. Did they mean to rob the Almighty of what they call his prerogative? And were they not partial ministers of their own acknowledged principles? It was difficult to credit their pretended scruples; because, while they were exclaiming against the Mammon of this world, they are hunting after it with a step steady as time, and an appetite keen as the grave. The memorial from the Pennsylvania Society applied, in express terms, for an emancipation of slaves, and the report of the committee appeared to hold out the idea that Congress might exercise the power of emancipating after the year 1808; for it is said that Congress could not emancipate slaves prior to that period. He remarked, that either the power of manumission still remained with the several States, or it was exclusively vested in Congress; for no one would contend that such a power would be concurrent in the several States and the United States. He then showed that the State Governments clearly retained all the rights of sovereignty which they had before the establishment of the constitution, unless they were exclusively delegated to the United States; and this could only exist where the Constitution granted, in express terms, an exclusive authority to the Union, or where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority, or where it granted an authority to the Union, to which a similar authority in the States would be repugnant. He applied these principles to the case in question; and asked, whether the constitution had, in express terms, vested the Congress with the power of manumission? Or whether it restrained the States from exercising that power? Or whether there was any authority given to the Union, with which the exercise of this right by any State would be inconsistent? If these questions were answered in the negative, it followed that Congress had not an exclusive right to the power of manumission. Had it a concurrent right with the States? No gentleman would assert it, because the absurdity was obvious. For a State regulation on the subject might differ from a Federal regulation; in which case one or the other must give way. As the laws of the United States were paramount to those of the individual States, the Federal regulations would abrogate those of the States, consequently the States would thus be divested of a power which it was evident they now had, and might exercise whenever they thought proper. But admitting that Congress had authority to manumit the slaves in America, and were disposed to exercise it, would the Southern States acquiesce in such a measure without a struggle? Would the citizens of that country tamely suffer their property to be torn from them? Would even the citizens of the other States, which did not possess this property, desire to have all the slaves let loose upon them? Would not such a step be injurious even to the slaves themselves? It was well known that they were an indolent people, improvident, averse to labor: when emancipated, they would either starve or plunder. Nothing was a stronger proof of the absurdity of emancipation than the fanciful schemes which the friends to the measure had suggested; one was, to ship them out of the country, and colonize them in some foreign region. This plan admitted that it would be dangerous to retain them within the United States after they were manumitted: but surely it would be inconsistent with humanity to banish these people to a remote country, and to expel them from their native soil, and from places to which they had a local attachment. It would be no less repugnant to the principles of freedom, not to allow them to remain here, if they desired it. How could they be called freemen, if they were, against their consent, to be expelled from the country? Thus did the advocates for emancipation acknowledge that the blacks, when liberated, ought not to remain here to stain the blood of the whites by a mixture of the races. Another plan was to liberate all those who should be born after a certain limited period. Such a scheme would produce this very extraordinary phenomenon, that the mother would be a slave and her child would be free. These young emancipated negroes, by associating with their enslaved parents, would participate in all the debasements which slavery is said to occasion. But allowing that a practicable scheme of general emancipation could be devised, there can be no doubt that the two races would still remain distinct. It is known, from experience, that the whites had such an idea of their superiority over the blacks, that they never even associated with them; even the warmest friends to the blacks kept them at a distance, and rejected all intercourse with them. Could any instance be quoted of their intermarrying; the Quakers asserted that nature made all men equal, and that the difference of color should not place negroes on a worse footing in society than the whites; but had any of them ever married a negro, or would any of them suffer their children to mix their blood with that of a black? They would view with abhorrence such an alliance. Mr. S. then read some extracts from Mr. Jefferson's Notes on Virginia, proving that negroes were by nature an inferior race of beings; and that the whites would always feel a repugnance at mixing their blood with that of the blacks. Thus, he proceeded, that respectable author, who was desirous of countenancing emancipation, was, on a consideration of the subject, induced candidly to avow that the difficulties appeared insurmountable. The friends to manumission had said, that by prohibiting the further importation of slaves, and by liberating those born after a certain period, a gradual emancipation might take place, and that in process of time the very color would be extinct, and there would be none but whites. He was at a loss to learn how that consequence would result. If the blacks did not intermarry with the whites, they would remain black to the end of time; for it was not contended that liberating them would whitewash them; if they would intermarry with the whites, then the white race would be extinct, and the American people would be all of the mulatto breed. In whatever light, therefore, the subject was viewed, the folly of emancipation was manifest. He trusted these considerations would prevent any further application to Congress on this point, and would so far have weight with the committee as to reject the clause altogether, or at least to declare, in plain terms, that Congress has no right whatever to manumit the slaves of this country. Various objections, said he, had at different times been alleged against the abominable practice, as it had been called, of one man exercising dominion over another; but slavery was no new thing in the world. The Romans, the Greeks, and other nations of antiquity, held slaves at the time Christianity first dawned on society, and the professors of its mild doctrines never preached against it. [Here Mr. S. read a quotation from the Roman and Grecian History, and from some accounts of the government and manners of the people of Africa, before they had any knowledge of the African traders, from which it appeared that slavery was not disapproved of by the Apostles when they went about diffusing the principles of Christianity; and that it was not owing to the African trade, as had been alleged, that the people of Africa made war on each other.] Another objection against slavery was, that the number of slaves in the Southern States weakened that part of the Union, and in case of invasion would require a greater force to protect it. Negroes, it was said, would not fight; but he would ask whether it was owing to their being black or to their being slaves? if to their being black, then unquestionably emancipating them would not remedy the evil, for they would still remain black; if it was owing to their being slaves, he denied the position: for it was an undeniable truth, that in many countries slaves made excellent soldiers. In Russia, Hungary, Poland, peasants were slaves, and yet were brave troops. In Scotland, not many years ago, the Highland peasants were absolute slaves to their lairds, and they were renowned for their bravery. The Turks were as much enslaved as the negroes--their property and lives were at the absolute disposal of the Sultan, yet they fought with undaunted courage. Many other instances might be quoted, but those would suffice to refute the fact. Had experience proved that the negroes would not make good soldiers? He did not assert that they would, but they had never been tried; discipline was every thing; white militia made but indifferent soldiers before they were disciplined. It was well known that according to the present art of war, a soldier was a mere machine, and he did not see why a black machine was not as good as a white one; in one respect the black troops would have the advantage in appearing more horrible in the eyes of the enemy. But admitting that they would not fight, to what would the argument lead? Undoubtedly to show that the Quakers, Moravians, and all the non-resisting and non-fighting sects, constitute the weakness of the country. Did they contribute to strengthen the country against invasion by staying at home and joining the invader as soon as he was successful? But they furnished money, he should be told, and paid substitutes; and did not the slaves, by increasing the agriculture of the country, add to its wealth, and thereby increase its strength? Did they not moreover perform many laborious services in the camp and in the field, assist in transporting baggage, conveying artillery, throwing up fortifications, and thus increase the numbers in the ranks by supplying their places in these services? Nor was it necessary that every part of the empire should furnish fighting men; one part supplied men, another money; one part was strong in population, another in valuable exports, which added to the opulence of the whole. Great Britain obtained no soldiers from her East and West India settlements, were they therefore useless? She was obliged to send troops to protect them, but their valuable trade furnished her with means of paying those troops. Another objection was that the public opinion was against slavery. How did that appear? Were there any petitions on the subject excepting that from the Pennsylvania Society and a few Quakers? And were they to judge for the whole Continent? Were the citizens of the Northern and Eastern States to dictate to Congress on a measure in which the Southern States were so deeply interested? There were no petitions against slavery from the Southern States, and they were the only proper judges of what was for their interest. The toleration of slavery in the several States was a matter of internal regulation and policy, in which each State had a right to do as she pleased, and no other State had any right to intermeddle with her policy or laws. If the citizens of the Northern States were displeased with the toleration of slavery in the Southern States, the latter were equally disgusted with some things tolerated in the former. He had mentioned on a former occasion the dangerous tenets and pernicious practices of the sect of Shaking Quakers, who preached against matrimony, and whose doctrine and example, if they prevailed, would either depopulate the United States, or people it with a spurious race. However the people of South Carolina reprobated the gross and immoral conduct of these Shakers, they had not petitioned Congress to expel them from the Continent, though they thought such a measure would be serviceable to the United States. The Legislature of South Carolina had prohibited theatrical representations, deeming them improper; but they did not trouble Congress with an application to abolish them in New York and Philadelphia. The Southern citizens might also consider the toleration of Quakers as an injury to the community, because in time of war they would not defend their country from the enemy, and in time of peace they were interfering in the concerns of others, and doing every thing in their power to excite the slaves in the Southern States to insurrection; notwithstanding which, the people of those States had not required the assistance of Congress to exterminate the Quakers. But he could not help observing, that this squeamishness was very extraordinary at this time. The Northern States knew that the Southern States had slaves before they confederated with them. If they had such an abhorrence for slavery, why, said Mr. S., did they not cast us off and reject our alliance? The truth was, that the best informed part of the citizens of the Northern States knew that slavery was so ingrafted into the policy of the Southern States, that it could not be eradicated without tearing up by the roots their happiness, tranquillity, and prosperity; that if it were an evil, it was one for which there was no remedy, and therefore, like wise men, they acquiesced in it. We, on the other hand, knew that the Quaker doctrines had taken such deep root in some of the States, that all resistance to them must be useless; we therefore made a compromise on both sides--we took each other, with our mutual bad habits and respective evils, for better, for worse; the Northern States adopted us with our slaves, and we adopted them with their Quakers. There was then an implied compact between the Northern and Southern people that no step should be taken to injure the property of the latter, or to disturb their tranquillity. It was therefore with great pain that he viewed the anxiety of some of the members to pay such uncommon respect to the memorialists, as even to set aside the common rules of proceeding, and attempt to commit the memorials the very day they were presented, though the Southern members had solicited one day's delay. Such proceedings had justly raised an alarm in the minds of himself and his Southern colleagues; and feeling that alarm, they would have acted a dishonorable part to their constituents had they not expressed themselves with that warmth and solicitude which some gentlemen had disapproved. A proper consideration of this business must convince every candid mind that emancipation would be attended with one or other of these consequences: either that a mixture of the races would degenerate the whites, without improving the blacks, or that it would create two separate classes of people in the community, involved in inveterate hostility, which would terminate in the massacre and extirpation of one or the other, as the Moors were expelled from Spain, and the Danes from England. The negroes would not be benefited by it; free negroes never improve in talents, never grow rich, and continue to associate with the people of their own color. This is owing either to the natural aversion the whites entertain towards them, and an opinion of the superiority of their race, or to the natural attachment the blacks have to those of their own color; in either case it proves that they will, after manumission, continue a distinct people, and have separate interests. The author already quoted has proved that they are an inferior race even to the Indians. After the last war, a number of negroes which had been stolen from the Southern States, and carried to England, either quitted the persons who had carried them there, or were abandoned by them. Unable to provide for themselves, and rejected from the society of the common people of England, they were begging about the streets of London in great numbers; they supplicated captains of vessels to carry them back to their owners in America, preferring slavery there to freedom in England. Many of them were shipped to Africa by the humanity of the English, and were either butchered or made slaves of by their savage countrymen, or reshipped for sale to the plantations. But some persons have been of opinion, that if the further importation of slaves could be prohibited, there would be a gradual extinction of the species. Having shown the absurdity of liberating the _postnati_ without extending it to all the slaves old and young, and the great absurdity and even impracticability of extending it to all, I shall say a few words with regard to the extinction. That would be impossible, because they increase; to occasion an extinction, Congress must prohibit all intercourse between the sexes; this would be an act of humanity they would not thank us for, nor would they be persuaded that it was for their own good; or Congress must, like Herod, order all the children to be put to death as soon as born. If, then, nothing but evil would result from emancipation, under the existing circumstances of the country, why should Congress stir at all in the business, or give any countenance to such dangerous applications? We have been told that the Government ought to manifest a disposition inimical to this practice which the people reprobate. If some citizens, from misinformation and ignorance, have imbibed prejudices against the Southern States, if ill-intentioned authors have related false facts, and gross misrepresentations tending to traduce the character of a whole State, and to mislead the citizens of other States, is that a sufficient reason why a large territory is to be depopulated, merely to gratify the wish of some misinformed individuals? But what have the citizens of the other States to do with our slaves? Have they any right to interfere with our internal policy? This is not an object of general concern, for I have already proved that it does not weaken the Union; but admit that it did, will the abolition of slavery strengthen South Carolina? It can only be cultivated by slaves; the climate, the nature of the soil, ancient habits, forbid the whites from performing the labor. Experience convinces us of the truth of this. Great Britain made every attempt to settle Georgia by whites alone, and failed, and was compelled at length to introduce slaves; after which that State increased very rapidly in opulence and importance. If the slaves are emancipated, they will not remain in that country; remove the cultivators of the soil, and the whole of the low country, all the fertile rice and indigo swamps will be deserted, and become a wilderness. What, then, becomes of its strength? Will such a scheme increase it? Instead of increasing the population of the whites, there will be no whites at all. If the low country is deserted, where will be the commerce, the valuable exports of that country, the large revenue raised from its imports and from the consumption of the rich planters? In a short time, the Northern and Eastern States will supply us with their manufactures; if you depopulate the rich low country of South Carolina and Georgia, you will give us a blow which will immediately recoil on yourselves. Suppose there are one hundred and forty thousand slaves in those States, which require annually five yards of cloth each, making seven hundred thousand yards at half a dollar a yard, this makes three hundred and fifty thousand dollars, besides the articles of linen, flannel, Osnaburgh, blankets, molasses, sugar, and rum, for the use of the negroes; now, either the Eastern and Middle States will supply us with all these articles, or they will receive the benefit of the impost on them if they are imported from foreign countries. Without the rice swamps of Carolina, Charleston would decay, so would the commerce of that city; this would injure the back country. If you injure the Southern States, the injury would reach our Northern and Eastern brethren; for the States are links of one chain; if we break one, the whole must fall to pieces. Thus it is manifest, that in proportion to the increase of our agriculture will our wealth be increased; the increase of which will augment that of our sister States, which will either supply us with their commodities, or raise a large revenue upon us, or be the carriers of our produce to foreign markets. It has been said, that the toleration of slavery brings down reproach on America. It only brings reproach on those who tolerate it, and we are ready to bear our share. We know that none but prejudiced and uncandid persons, who have hastily considered the subject, and are ignorant of the real situation of the Southern States, throw out these insinuations. We found slavery ingrafted in the very policy of the country when we were born, and we are persuaded of the impolicy of removing it; if it be a moral evil, it is like many others which exist in all civilized countries, and which the world quietly submit to. Humanity has been a topic of declamation on this subject: that sentiment has different operations on different individuals, and he had it in his power to show, that humanity first gave origin to the transportation of slaves from Africa into America. _Bartholomew de las Casas_, Bishop of Chiapa, a Spaniard renowned for his humanity and virtues, in order to save the Indians in South America from slavery, prevailed on his monarch to substitute Africans, which were accordingly purchased on the coast of Africa, and shipped to the Spanish colonies to work in the mines: this appears in _Robertson's History of America_, which Mr. S. quoted. At this day, the Spaniards give considerable encouragement to the transportation of slaves into their islands. Mr. S. read the edict for that purpose. Another objection is, that slavery vitiates and debases the mind of the owner of this sort of property. Where, he asked, is the proof of this allegation? Do the citizens of the Southern States exhibit more ferociousness in their manners, more barbarity in their dispositions, than those of the other States? Are crimes more frequently committed there? A proof of the absurdity of this charge may be found in the writings of those who wish to disseminate this mischievous idea, and yet, in their relations of facts, they themselves contradict it. They lay down general principles, which they take upon credit from others, or which they publish with sinister views, and when they enter into a detail of the history of those States, they overset their own doctrines. Thus, one writer tells us, that the Southern citizen, who is educated in principles of superiority to the slaves which surround him, has no idea of government, obedience, and good order, till he mingles with the hardy and free-spirited yeomanry of the North, and that after mixing with them, he will return home with his mind more enlarged, his views more liberalized, and his affections rectified, and he becomes a more generous friend to the rights of human nature. But hear what the Eastern traveller is to learn by visiting the enslaved regions of the South. He will see, says the same writer, immediately after, industry crowned with affluence, independence, hospitality, liberality of manners; and, notwithstanding the prevalence of domestic slavery, he will find the noblest sentiments of freedom and independence to predominate; he will extol their enterprise, art, and ingenuity, and will reflect that nature is wise, and that Providence in the distribution of its favors is not capricious. Take another striking instance of this contradiction from Morse's Geography. He says, that there are more slaves than free persons in South Carolina, and mentions the mischievous influence of slavery on their manners, which, he observes, by exempting them from the necessity of labor, leads to luxury, dissipation, and extravagance, and savors too much of a haughty, supercilious behavior; that the inhabitants want that enterprise and perseverance which are necessary for the attainment of the arts and sciences; that they have few motives to enterprise, and too generally rest contented with barely knowledge enough to transact the common affairs of life. Now, for the author's proofs: they are contained in these words: "Many of the inhabitants spare no pains nor expense in giving the highest polish of education to their children; literature has begun to flourish since the peace; several flourishing academies and colleges have been established; the ladies have an engaging softness and delicacy in their manners; theatrical exhibitions have been prohibited by law; gaming of all kinds is more discountenanced than in any of the Southern States; all denominations of religion are on an equal footing; commerce is flourishing; economy is becoming more fashionable, and science begins to spread her salutary influence among the citizens." But was South Carolina, at the commencement of the war, with all her slaves, backward in her resistance to Great Britain? View the conduct of her citizens, their zeal and ardor in the cause of liberty; their labor at Fort Sullivan. Are crimes more frequent in that country than in the other States? Are there more executions? I believe there have been as few as in any part of the Continent, and those which have taken place have been generally of emigrant convicts, or fugitive wheel-barrow men; he would be bold to assert that in no State on the Continent is there more order, sobriety, and obedience to good government; more industry and frugality; nor is there any trace of the influence of slavery on the character of her citizens. The French, so far from curbing and cramping the African trade with needless regulations, give large premiums upon every negro landed on their islands; in some instances as much as two hundred livres per head. Is that nation more debased than others? Are they not a polished people, sensible of the rights of mankind, and actuated by proper sentiments of humanity? The Spaniards encourage slavery; they are people of the nicest honor, proverbially so. The Romans and Greeks had slaves, and are not their glorious achievements held up as excitements to great and magnanimous actions? Sparta teemed with slaves at the time of her greatest fame as a valiant Republic. The absolute power of the Lacedæmonians over the Helotes is frequently spoken of by the ancient writers; they were not only the slaves of the Commonwealth, but of every individual; they could not be set at liberty, neither could they be sold; hence arose a saying, that a free man at Sparta was most a free man, and a slave most a slave. The system of the Roman policy with regard to slavery was still more severe. Slaves were not even under the protection of the laws; they were considered as things, _inter res_. A master, merely from caprice, might torture, dismember, and even murder his slave. If a slave did any damage exceeding his value, he was delivered to the person injured, who did with him what he pleased. Yet these slaves were of the same color as their masters, and equal to them in mental faculties; many of them were men of great learning, philosophers, poets, &c. Much had been said of the cruel treatment of slaves in the West Indies and the Southern States; with respect to the latter, he denied the fact from experience, and accurate information, and believed in his conscience that the slaves in South Carolina were a happier people than the lower order of whites in many countries he had visited. With regard to the West Indies, _Lord Rodney_ and _Admiral Barrington_ had both declared, that they had spent some time in the West Indies, and that they had never heard of a negro being cruelly treated; that they had often spoken of their happiness in high terms, declaring that they should rejoice exceedingly if the English day laborer was half as happy. Some have said that slavery is unnecessary; so far from it, that several essential manufactures depended on it. Indigo, cochineal, and various other dyeing materials, which are the produce of the West Indies, could only be raised by slaves; the great staple commodities of the South would be annihilated without the labor of slaves. It is well known that when the African slaves were brought to the coast for sale, it was customary to put to death all those who were not sold; the abolition of the slave trade would therefore cause the massacre of the people. The cruel mode of transportation was another motive to this abolition; but was it to be presumed that the merchants would so far attend to their own interests as to preserve the lives and the health of the slaves on the passage. All voyages must be attended with inconveniencies, and those from Africa to America not more than others. As to their confinement on board, it was no more than necessary; as to the smallness of space allotted them, it was more than was allotted to soldiers in a camp; for the measurement of cubical air breathed by the Africans, compared with that of soldiers in a camp, was in favor of the former as thirty to seventeen; it was full as much as was allotted in ships of war to seamen, who, by the laws of England, were frequently on their return to their families, after a long and dangerous voyage, seized by violence, hurried away by a press-gang, and forced on another voyage more tedious and perilous than the first, to a hot and sickly climate, where several hundreds of them were stowed away in the hold of a vessel. In cases of disobedience, the captain had a right, for slight offences, to inflict on them corporal punishment without the intervention of a court-martial, and in other cases they are punishable by very severe laws, executed by martial courts, established for that purpose. The same may be observed of the soldiers, who were frequently flogged severely for trifling offences; instances have been known of their being put under the care of a surgeon, after receiving a small part of the intended flagellation, to refit them for the residue. Having thus removed the force of the observations which have been advanced against the toleration of slavery, by a misguided and misinformed humanity, I shall only add, that I disapprove of the whole of the report; because it either states some power sufficiently expressed in the constitution, which is unnecessary, or it sets forth some power which I am clear Congress do not possess. The concluding paragraph is an extraordinary one. In what mode are the memorialists to be informed of our humane dispositions? Are we to send a special committee to inform them? Or is the Speaker to write them a letter, or the Sergeant-at-Arms with the mace to wait on them? In short, Mr. Chairman, the whole of this business has been wrong from beginning to end, and as one false step generally leads to others, so has the hasty commitment of these memorials involved us in all this confusion and embarrassment. I hope, therefore, if any kind of report is agreed to, it will be something like that proposed by my colleague. The committee rose, and reported progress. FRIDAY, March 19. HUGH WILLIAMSON, a member from North Carolina, appeared and took his seat. MONDAY, March 22. _Subject of Slavery._ Mr. BOUDINOT said, although he most heartily approved of many of the arguments and doctrines of his friend from Pennsylvania, yet he could not go all lengths with him. He thought with him, that our time had been taken up, and great labor had been used in arguments that nowise related to the merits of the question before the committee, but he could not agree that the clause in the constitution relating to the want of power in Congress "to prohibit the importation of such persons, as any of the States _now existing_ shall think proper to admit, prior to the year 1808, and authorizing a tax or duty on such importation, not exceeding ten dollars for each person," did not extend to negro slaves. Candor required that he should acknowledge, that this was the express design of the constitution, and, therefore, Congress could not interfere in prohibiting the importation, or promoting the emancipation of them, prior to that period. He said he was well informed that the tax or duty of ten dollars was provided instead of the five per cent. _ad valorem_, and was so expressly understood by all parties in the Convention. That therefore it was the interest and duty of Congress to impose this tax, or it would not be doing justice to the States, or equalizing the duties throughout the Union. If this was not done, merchants might bring their whole capitals into this branch of trade, and save paying any duties whatever. Mr. B. had hoped that the great lengths to which the gentleman from Pennsylvania had carried the argument, would have convinced gentlemen in the opposition of the propriety, if not the necessity of the resolutions on the table. Is it not prudent now, while the design of the framers of the constitution is well known, and while the best information can be obtained, for Congress to declare their sense of it, on points which the gentlemen say, involve their great and essential interests, especially when the gentleman from Pennsylvania gives so different a construction to it from what the gentleman from the Southward thinks right? Is it not advantageous to the Southern States to have an explicit declaration calming their fears and preventing unnecessary jealousies on this subject? Can there be any foundation for alarm, when Congress expressly declare, that they have no power of interference prior to the year 1808? But gentlemen say they have been charged with impropriety of conduct, in discovering so much warmth and earnestness, on a subject with which their dearest interests are so intimately connected--that all men are led by interest, and they are justified in pursuing the same line of conduct. Mr. B. declared, for his own part, he never blamed them for standing forth for what they conceived the true interests of their constituents; but it was the manner in which this had been done, that he complained of. On resolutions declaring that Congress had not power to prohibit the importation of slaves into any State, or interfering in their emancipation or internal government, long arguments had been used, and much precious time had been spent, to prove the lawfulness of the African trade in slaves; this, indeed, was an arduous task, in this day of light and knowledge. An author, said to be of reputation, was brought forward to prove the state of that unhappy country, but it turned out to be in the fifteenth century; this could be of little avail. An hour was taken up in reading the labors of a newspaper writer in the island of Jamaica. This writer appeared wholly uninformed as to historic facts relating to the miserable Africans, and as ignorant of the principal arguments against the slave trade. It was necessary for him to deny the authority of _Anthony Benezet_, who had published some pointed facts on the subject. Mr. _Benezet_ was a man of the strictest integrity, and of the best information--a man that was an honor to his country, and an ornament to society. Mr. B. had been well acquainted with him, and spoke from personal knowledge; he had examined into the facts from captains of Guineamen, and a person who had lived twelve years in that country, and he could say, with confidence, that _Mr. Benezet's_ account had been generally confirmed. Not only the practice of ancient nations, and that of all modern Europe, had been brought into view, but even the sacred Scriptures had been quoted, to justify this iniquitous traffic. It is true, that the Egyptians held the Israelites in bondage for four hundred years, and Mr. B. doubted not, but much the same arguments as had been used on the present occasion, had been urged with great violence by the King of Egypt, whose heart, it is expressly said, had been extremely hardened, to show why he should not consent to let the children of Israel go, who had now become absolutely necessary to him; but, said he, gentlemen cannot forget the consequences that followed; they were delivered by a strong hand and stretched-out arm, and it ought to be remembered that the Almighty Power that accomplished their deliverance is the same yesterday, to-day, and for ever. The New Testament has afforded a number of texts to countenance this doctrine, in the gentleman's opinion. One would have imagined that the uniform tenor of the Gospel, that breathes a spirit of love and universal philanthropy to our fellow-creatures--that commands our love to our neighbor to be measured by our love to ourselves--that teaches us that whatsoever we would that men should do to us to do so to them, would have prevented this misapplication. Surely the gentleman overlooked the prophecy of St. Peter, where he foretells, that, among other damnable heresies, "through covetousness shall they, with feigned words, make merchandise of you." A quotation from a modern author, of great note in the philosophical world, has been most ungenerously made use of by the newspaper writer before referred to--I mean from the works of the famous _Mr. Paley_, whose treatise on Moral Philosophy does him the greatest credit--a single sentence or two is taken from this work, without regard to the connection, to brand him with the charge of countenancing slavery. Mr. B. then produced the book and read the passage, wherein it appeared that _Mr. Paley_ laid down "the obligation of slavery to arise from crimes, captivity, and debt;" that the slave trade on the coast of Africa is not excused by these principles; that no questions are there asked relative to the justice of the vender's title, but this is the least crime with which this traffic is chargeable; the natives are excited to war, with this the wickedness begins; the slaves torn away from parents, wives, children, from their friends and companions, their fields and flocks, their home and country, are transported to the European settlements in America, with no other accommodation on ship-board than what is provided for brutes. This is the second stage of cruelty from which they are delivered, only to be placed, and that for life, in subjection to a dominion and system of laws the most tyrannical that ever were tolerated upon the face of the earth. But necessity is pretended, and after all it has never been proved that it exists. _Mr. Paley_ then refers to the present situation of the United States. "The great revolution in the Western World," says he, "may probably conduce (and who knows but that it was designed) to accelerate the fall of this abominable tyranny; and now it is a season for reflecting whether a Legislature, which had so long lent its assistance to the support of an institution replete with human misery, was fit to be trusted with an empire the most extensive that ever obtained in any age or quarter of the world." He then shows that slavery was a part of the civil constitution of most countries when Christianity appeared; and the reason that its precepts did not expressly condemn or prohibit slavery was, because, soliciting admission into all nations, it abstained from meddling with the civil institutions of any. Then follows the passage quoted by the newspaper writer--"That the discharging of slaves from all obligation to their masters, which is the consequence of pronouncing slavery unlawful, would have no better effect than to let loose one-half of mankind on the other. Slaves would have been tempted to embrace a religion which asserted their right to freedom; masters would hardly have been persuaded to consent to claims founded on such authority; the most calamitous of all contests, a _bellum servile_, might probably have ensued, to the reproach, if not the extinction of the Christian name." He then asserts, that emancipation should be gradual, and by the provisions of laws, and under the protection of civil government. "Christianity can only operate as an alterative. By the mild diffusion of its light and influence, the minds of men are insensibly prepared to perceive and correct the enormities, which folly, wickedness, or accident, have introduced into their public establishments." Thus, proceeded Mr. B., justice is done to this worthy philosopher and my own sentiments are more concisely and explicitly set forth than I could have done without it. But when gentlemen attempt to justify this unnatural traffic, or to prove the lawfulness of slavery, they should advert to the genius of our Government, and the principles of the Revolution. By the declaration of Congress, in 1775, setting forth the causes and necessity of taking up arms, they say: "If it was possible for men who exercise their reason, to believe that the Divine author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by His infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require from the Parliament of Great Britain some evidence that this dreadful authority over them had been granted to that body." And by the Declaration of Independence, in 1776, Congress declare: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." This, then, is the language of America in the day of distress. Mr. Chairman, I would not be understood, to contend the right of Congress at this time to prohibit the importation of slaves, whatever might have been the principles of the Revolution or the genius of the Government; by the present constitution we are clearly and positively restrained till the year 1808, and I am sure that no gentleman in this committee would have the most distant wish to wound this instrument of our connection. But there is a wide difference between justifying this ungenerous traffic, and supporting a claim to property, vested at the time of the constitution, and guarantied thereby. Besides, it would be inhumanity itself to turn these unhappy people loose to murder each other, or to perish for the want of the necessaries of life. I never was an advocate for so extravagant a conduct. Many arguments were pointed against the danger of our emancipating these slaves, or even holding up an idea that we had a power so to do, and much time has been taken up to disprove this right in Congress. As no claim of this kind is contended for, and the resolutions already passed expressly contradict it, I shall make no further observations on them. But the characters of the signers of these memorials are called in question, as an argument against the adoption of the resolution on the table. One of these memorials was signed by the Society of people called Quakers: the other by Dr. Franklin, as President of a private Society in Philadelphia. The indiscriminate abuse that has been thrown out against Quakers, without distinction, has not comported with the honor or dignity of this House. Not only their characters, but their very names have been called upon, and private anecdotes, relating to individuals, been mentioned on the floor. Many of the Quakers I have long lived in the habits of friendship with, and can testify to the respectability of their characters and the regularity of their lives. Their conduct in the late war has been arraigned, and they have been condemned in the lump. I have known many of them during the war, and impartial justice requires it from me, to give the committee some official information on the subject. I had the honor of serving the United States at the commencement of the war, as Commissary General of prisoners. Congress not being able to afford them supplies, those unhappy men in this town were reduced to the very depths of distress, without food or raiment, without blankets or firing, they suffered every thing that human nature could bear. In this situation many of the Quakers of this city exercised such humanity towards them as did honor to human nature. The miserable prisoner not only felt the happy effects of their exertions in his favor, but participated in their money, their food, and clothing. Nay, such were the jealousies created by this conduct, in the British army here, that an armed force entered the house of one of them, seized his books, and though a man of great property, and large commercial dealings, on finding that he had loaned large sums of money to our distressed prisoners, he was turned out of their lines, and with his family was a refugee during the whole of the war afterwards, separated from his business and property. To whom was the care of our prisoners in Philadelphia committed? To a Quaker: and I have been witness to the just tribute of gratitude and thankfulness paid by great numbers of our unhappy fellow-citizens to that gentleman for his kindness and humanity. And is this indiscriminate charge, without the least respect to characters, a decent or a just return for a conduct like this? Where is the denomination amongst us, that did not furnish opposers to our glorious Revolution? Were not hundreds of Presbyterians, Episcopalians, and almost of every other denomination, among our enemies? What denominations formed the thousands of new levies, that endeavored to deluge our country in blood? On the other hand, were not a Greene and a Mifflin furnished from the Society of the Quakers? In short, I rejoice to say, that our cause was not carried on by fanaticism or religious zeal, but a general struggle for the rights of human nature. Then why all this abuse of this particular sect, without discrimination? Can any solid argument against the resolution on the table arise from a conduct of this kind? I am at a loss to know what other argument has been used to show the impropriety of the resolution before you. It goes to declare the power of Congress to prohibit foreigners from fitting out vessels in our ports, to supply foreigners with slaves from Africa. For my part, I think it a prudent, a humane, and a constitutional resolution. It will render further interference on this subject, perhaps, unnecessary, when it is known that the power of Congress extends to remedy the evil. They will hardly venture to risk a voyage that may be ruined before its being finished. The gentleman last up (Mr. SMITH) said, that it was now acknowledged, that one of the memorials had asked something contrary to the constitution. I have never acknowledged this. The language is, that Congress would go to "the very verge of the constitution," to accomplish the business; but there is no request to exceed it. The character of the celebrated signer of the last memorial, Dr. Franklin, has been touched upon. The firmness of his mind has been suspected. An ingenious parable of his has been read to the committee, but its application totally mistaken. If the Supreme Being has borne with the unhappy subjects of our consideration, not for one hundred, but for thousands of years, in their own native land; has provided them with climate, soil, and social comforts, in which they rejoice; must we be discontented, and suppose, by adding to their misery, we can add to their happiness? TUESDAY, March 23. _Subject of Slavery._ It was then moved, that the House should take up the report of the Committee of the Whole on the report of the committee to whom were referred the memorials of the people called Quakers, and of the Pennsylvania Society for promoting the abolition of slavery. This motion was opposed by Mr. JACKSON, Mr. SMITH, Mr. BURKE, and Mr. BLAND; they severally observed, that the discussion of the subject has already excited a spirit of dissension among the members of the House, and that every principle of policy and concern for the dignity of the House, and the peace and tranquillity of the United States, concur to show the propriety of dropping the subject, and letting it sleep where it is. On the other hand, Mr. VINING, Mr. HARTLEY, and Mr. PAGE, observed, that there was the same propriety in taking up the subject at the present moment, and bringing it to a conclusion, as there was for first taking it up; that it has been so fully discussed it cannot be supposed gentlemen will go over the same ground again; it may soon be determined; to pass it over will be unprecedented, and will leave the public mind in the same state of uncertainty from which so much danger is apprehended. The motion for taking up the report was warmly contested in a lengthy debate, and finally passed in the affirmative, by a majority of one. Whereupon, on motion, that the said report of the committee, and also the report of the Committee of the whole House, of amendments to said report, be inserted on the Journal, it was resolved in the affirmative, 29 votes to 25. The yeas and nays were as follows: Those who voted in the affirmative, were, Messrs. Boudinot, Brown, Cadwalader, Contee, Floyd, Foster, Gerry, Gilman, Goodhue, Griffin, Hartley, Hathorn, Heister, Huntington, Lawrence, Lee, Leonard, Madison, Muhlenberg, Parker, Partridge, Schureman, Scott, Sedgwick, Sherman, Sylvester, Sinnickson, Vining, and Wynkoop. Those who voted in the negative, were, Messrs. Ames, Baldwin, Benson, Bland, Burke, Carroll, Coles, Gale, Grout, Jackson, Livermore, Mathews, Moore, Page, Van Rensselaer, Smith, (of Maryland,) Smith, (of South Carolina,) Stone, Sturges, Sumter, Thatcher, Trumbull, Tucker, White, and Williamson. The said reports are as follow: _Report of the Special Committee._ The committee to whom were referred sundry memorials from the people called Quakers, and also, a memorial from the Pennsylvania Society for promoting the Abolition of Slavery, submit the following report: That from the nature of the matters contained in these memorials, they were induced to examine the powers vested in Congress, under the present constitution, relating to the Abolition of Slavery, and are clearly of opinion, _First._ That the General Government is expressly restrained from prohibiting the importation of such persons "as any of the States now existing shall think proper to admit, until the year one thousand eight hundred and eight." _Secondly._ That Congress, by a fair construction of the constitution, are equally restrained from interfering in the emancipation of slaves, who already are, or who may, within the period mentioned, be imported into, or born within, any of the said States. _Thirdly._ That Congress have no authority to interfere in the internal regulations of particular States, relative to the instructions of slaves in the principles of morality and religion; to their comfortable clothing, accommodations, and subsistence; to the regulation of their marriages, and the prevention of the violation of the rights thereof, or to the separation of children from their parents; to a comfortable provision in cases of sickness, age, or infirmity; or to the seizure, transportation, or sale of free negroes; but have the fullest confidence in the wisdom and humanity of the Legislatures of the several States, that they will revise their laws from time to time, when necessary, and promote the objects mentioned in the memorials, and every other measure that may tend to the happiness of slaves. _Fourthly._ That, nevertheless, Congress have authority, if they shall think it necessary, to lay at any time a tax or duty, not exceeding ten dollars for each person of any description, the importation of whom shall be by any of the States admitted as aforesaid. _Fifthly._ That Congress have authority to interdict, or (so far as it is or may be carried on by citizens of the United States, for supplying foreigners) to regulate the African trade, and to make provision for the humane treatment of slaves, in all cases while on their passage to the United States, or to foreign ports, so far as respects the citizens of the United States. _Sixthly._ That Congress have also authority to prohibit foreigners from fitting out vessels in any port of the United States, for transporting persons from Africa to any foreign port. _Seventhly._ That the memorialists be informed, that in all cases to which the authority of Congress extends, they will exercise it for the humane objects of the memorialists, so far as they can be promoted on the principles of justice, humanity, and good policy. _Report of the Committee of the whole House._ The Committee of the whole House, to whom was committed the report of the committee on memorials of the people called Quakers, and of the Pennsylvania Society for promoting the Abolition of Slavery, report the following amendments: Strike out the first clause, together with the recital thereto, and in lieu thereof insert, "That the migration or importation of such persons as any of the States now existing shall think proper to admit, cannot be prohibited by Congress, prior to the year one thousand eight hundred and eight." Strike out the second and third clauses, and in lieu thereof insert, "That Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the States; it remaining with the several States alone to provide any regulations therein, which humanity and true policy may require." Strike out the fourth and fifth clauses, and in lieu thereof insert, "That Congress have authority to restrain the citizens of the United States from carrying on the African trade, for the purpose of supplying foreigners with slaves, and of providing, by proper regulations, for the humane treatment, during their passage, of slaves imported by the said citizens into the States admitting such importation." Strike out the seventh clause.[36] WEDNESDAY, March 24. JOHN BAPTIST ASHE, another member from North Carolina, appeared and took his seat. THURSDAY, April 22. _Benjamin Franklin._ Mr. MADISON rose and addressed the House as follows: Mr. SPEAKER: As we have been informed, not only through the channel of the newspapers, but by a more direct communication, of the decease of an illustrious character, whose native genius has rendered distinguished services to the cause of science and of mankind in general; and whose patriotic exertions have contributed in a high degree to the independence and prosperity of this country in particular; the occasion seems to call upon us to pay some tribute to his memory expressive of the tender veneration his country feels for such distinguished merit. I therefore move the following resolution: "The House being informed of the decease of BENJAMIN FRANKLIN, a citizen whose native genius was not more an ornament to human nature than his various exertions of it have been precious to science, to freedom, and to his country, do resolve, as a mark of the veneration due to his memory, that the members wear the customary badge of mourning for one month." Which was agreed to. THURSDAY, June 24. _Officers of the Navy._ On motion of Mr. HARTLEY, the report of the committee on the memorial of the Officers of the Navy was taken into consideration by the committee of the Whole: the report is as follows: The committee report, that they do not find any reason sufficient to justify the difference that has been made in the compensation of the officers of the army and of the navy of the United States, and are, therefore, of opinion, that a law ought to pass for granting five years' pay, equal to the commutation of half-pay, and also a bounty of land, to the officers of the navy, upon the same principles, and in the same manner, as has been granted to the officers of the army of the United States. Mr. SHERMAN observed, that, by the memorial and the report, it appears that the memorialists do not pretend to have any claim on the public by virtue of any existing resolutions of Congress. The subject is very fully before the committee; it lies with Congress, therefore, to determine what is proper to be done under such circumstances. The application stands entirely on the basis of its own merits, and he could conceive of no difficulty in deciding on it. Mr. STONE observed, that it is true there is no claim by virtue of any antecedent contract or promise; nor was commutation, he believed, promised to the officers of the army. In this view, the officers of the navy stand exactly upon the same footing with those of the army. He then entered into a consideration of the merits, services, and sufferings, of the officers of the navy; and from these and other considerations, urged the justice of their claims, as he could see no reason for the difference that had been made. Mr. HUNTINGTON said, but a little consideration was necessary to recollect the reason of the difference between the officers of the navy and army. The officers of the army were first in the public service; the navy was not formed until some time after hostilities commenced. The officers of the navy were put on the same footing, in respect to pay, as the army; the former had some advantages in point of rank, and they were entitled to a part of their captures. He then gave an account of the origin of commutation--which was granted on account of the peculiar exigencies of affairs at that time. During the time this business was in agitation there were very few navy officers in the public service, and no application was made by them for half-pay or commutation. They were ashore, and many of them had retired to civil life. The reason, therefore, why they are not included in the commutation was, there did not appear at the time any necessity for the measure, as the United States did not then want a navy; whereas the public exigencies with respect to the army were such as rendered the resolution for the commutation to them absolutely necessary. He, however, thought the claim of the navy officers founded on justice; and justice, said he, is the strongest plea that can be urged in support of any demand whatever. Mr. HARTLEY supported the memorial. He gave the officers great credit for their bravery, services, and attachment to the cause of their country. He dilated on the hardships and sufferings they endured; he adverted to the advantages they derived from captures, which he stated to be very inconsiderable. Their claims, said he, appear to me to be founded on the the strictest and most impartial justice; he hoped, therefore, that the report would be accepted, and a committee appointed to bring in a bill accordingly. Mr. BALDWIN, who was one of the select committee which made the report, stated some of the reasons which influenced the committee; also the considerations which were supposed to have led to the distinction between the navy and army, in respect to commutation--one of which was, that the officers of the navy were in the line of their particular calling, and which they were enabled to pursue with perhaps greater advantages than they ever did before. Other circumstances were mentioned by him, tending to invalidate their claim. Mr. SHERMAN observed, that if this report is adopted, it will open a very wide door indeed to applications for half pay or commutation. He then gave a history of the origin of commutation or half pay, which, he said, was considered at the time as a measure of necessity, and not of justice; and has been very much complained of by several of the States. The above necessity did not exist with respect to the officers of the navy, as, at the time, there were but two or three ships in service. From this state of facts, he inferred that no precedent could be drawn in favor of extending the commutation to the officers of the navy. He thought that their case was entitled to the consideration of the Legislature, on the principles of equity; he should, therefore, be for the committee's making full inquiry into the circumstances of the whole business, and making such provision as justice should point out; but he was against the report in its present latitude. Mr. BURKE replied to the observations of Mr. BALDWIN, respecting the officers of the navy being in the way of their profession; and, from the nature of the service, he showed that there was little weight in the observation. Their circumstances were very much altered for the worse, and they were now left in a very destitute situation; whereas the officers of the army are enjoying posts and places of honor and profit. Their silence on the subject has been mentioned. He observed that their dispersed situation had been the principal reason of their not coming forward with their petition before. Mr. B. observed, that the officers of the navy were not treated like other prisoners when they were taken; they suffered peculiarly, not as prisoners of war, but were treated like rebels, whose crimes were of the blackest nature. Mr. SENEY said he was, and always had been an advocate for the claims of the officers of the navy: he thought their memorial founded on the strictest justice. He introduced the representation to Congress of the "illustrious" Commander-in-chief of the late army, on the subject of half pay and pensions, which he read. He then entered into a comparative view of the relative merits of the army and navy; and said it was well known that many of them made as great sacrifices as the other description of officers. With respect to prize money, he doubted whether they had ever been benefited by it. In some instances, where they had expected the most, they had, through the failure of agents, received only a certificate, worth about five shillings in the pound; and that received only for a part of what was due. He replied to the several objections which had been offered, and concluded by saying it would be unjust and impolitic not to grant their claims. Mr. SEDGWICK observed, that no gentleman in the committee had deeper impressions made upon him, by the grateful recollection of the merits and services of those brave men to whom America owed its freedom, than himself. Yet, under the present circumstances of the country, he thought it a duty he owed the people who had confided their interest to his management, to examine, on principle, the demands which were made upon the Government for pecuniary grants. The applicants in the present instance, did not place their demand on the ground of contract. For the contract, under which the services had been rendered, had been complied with according to the specified terms, and performed to the extent of the powers of the Government, in the same manner as other claims of a similar nature had been satisfied. It was further, he said, to be noticed, that during the time those services were performing, no dissatisfaction had been manifested by the present memorialists. From these observations, then, it clearly followed, that, in point of contract, the claims of the officers of the navy were in all respects similar to those of every other individual in the community, who had received satisfaction by the same means. It would then become gentlemen to reflect on the consequences which would result from the establishment of a precedent, which would go to the invalidation of all the final settlements which had been made. Mr. SEDGWICK said, gentlemen had supported the claim of the applicants from a supposed analogy of their circumstances to those of the gentlemen of the army. He said there was the difference which arose from the circumstance already mentioned. The commutation was founded in contract; the present claim was destitute of that support. There were also other material circumstances which very widely differed in the two cases. The officers of the army were called from pursuits by which they were enabled to support and provide for their families, and to abandon their prospects of establishment by the business to which they had been educated. On the other hand, the gentlemen of the navy were promised handsome wages for continuing in that business to which they had been educated, and for which they were best, if not only qualified; and this, too, at a time when, by the destruction of our commerce, many of them otherwise must have wanted employment. They had likewise additional encouragement from a participation in the avails of prizes, while the army derived no emolument from any such source. That the report of the Select Committee being unsupported either on the ground of contract, or the principles on which the grant to the officers of the army was made, the application was merely to the generosity of the Government. He said it was a principle, from which he professed himself determined never to depart, not to dissipate that property in idle or visionary projects of generosity, which is necessary to the performance of justice. That the arduous scenes in which we had been engaged, had imposed the necessity of practising a rigid economy. That the conduct which we might, under present embarrassments, pursue, it would be improper hereafter to consider as a precedent. That it would, indeed, be a noble and generous sentiment to compensate all those losses which our friends had sustained by the war. But he asked, if such would not be a vain attempt? Can we compensate all the desolation of fire and wanton depredation, provoked from the enemy by the patriotism of particular districts in this country? Can we retribute the sufferings which have been caused by the depreciation of our currency? Or the ruin of thousands and thousands by our delays of payment, and the consequent depreciation of our securities? Can we administer to the relief of the vast number of widows and orphans, who, from those circumstances, have been reduced from affluence to want and beggary? Remember, too, he said, the sages, who, in the hour of danger, watched over your security; and who, in their best days, abstracted themselves from every lucrative pursuit, and devoted all their time and talents to the service of their country. These patriots, now in the evening of life, are the most meritorious objects of the generosity of the Government, yet they would nobly disdain to ask, or to receive the aid of the Government, however necessary to them, until efficient provision was made for the performance of those contracts, which we are under the most solemn obligation, if in our power, to fulfil. And he concluded by observing, that when the improving resources of our country should enable the Government generously to compensate the sufferings of those several descriptions of persons, then, and not till then, might we extend to the memorialists the relief which they now sought for. Mr. JACKSON supported the claim of the officers. He observed, that if the country had not derived so extensive advantages from the exertions of the navy, it must be imputed to peculiar circumstances, and not to any deficiency in the officers and sailors; so far as their abilities could be exerted, no men distinguished themselves more. Had ours been a maritime instead of an agricultural country, the importance of a navy would have struck us more forcibly. Their claims he considered as founded in the strictest justice, and he had no doubt that if they had applied to the old Congress they would have granted their request; but restrained by a consideration of the embarrassments of the United States, they did not obtrude their petitions upon them; and now this very circumstance is urged as a reason for not granting their petition. In his opinion, this did them great honor; since that time, they have been scattered through all parts of the Union. This and other circumstances have delayed their application to this time, but have not lessened the equity of it. He added many other observations, and concluded by saying that he was fully in favor of the report. FRIDAY, June 25. _Foreign Intercourse._ The House proceeded to consider the amendments last proposed on the part of the Senate to the bill providing the means of intercourse between the United States and foreign nations. The first amendment was to strike out thirty thousand, and to insert forty thousand dollars. It was moved that the House should agree to this amendment; this motion was opposed. It was said that the committee had exceeded their commission in proposing this alteration in the bill, as both Houses had agreed in the sum of thirty thousand dollars. It was further said that more than one Minister Plenipotentiary was unnecessary; that the Court of Great Britain had sent only a Consul to this country; and that, from the present appearances, no advantages could be expected to arise from sending a Minister, equivalent to the expense; the necessity contended for is merely conjectural; and by that rule, the Ministers Plenipotentiary may be increased, and one sent to Spain and another to Portugal. If only one Minister is sent to Europe, the first sum will be sufficient; with respect to the Court of London, a Chargé des Affaires will answer every purpose. In support of the motion, it was urged that the President of the United States is, by the constitution, vested with the power of appointing such foreign officers as he may think necessary, and it must devolve upon the Legislature to make provision for defraying the expense. The Committee of Conference did not rely on their own judgment, they consulted the Secretary of Foreign Affairs. His opinion was, that in the present situation of this country with respect to foreign nations, two Ministers and two Chargés des Affaires were necessary; a Minister at the Court of Versailles is generally conceded to be requisite. The peculiar situation of this country with respect to the posts, the Northern and Eastern frontiers, and the state of our commerce in respect to Great Britain, can scarcely leave a doubt of the necessity and importance of sending a Minister to that country. This being the state of affairs, a less sum than that proposed, it is demonstrably evident, will not be found adequate. The question on concurring in this amendment was carried in the affirmative. The other amendments were agreed to, with amendments. TUESDAY, July 6. _Seat of Government._ The House resolved itself into a Committee of the Whole on the bill sent from the Senate for establishing the temporary and permanent seat of the Government of the United States, Mr. BOUDINOT in the chair. Mr. SHERMAN.--As this bill respects the permanent residence of the Government, which is an important subject, it ought to be a matter of inquiry, whether the place proposed is the real centre of population and territory or not? He thought it too far southward. He moved, therefore, that the Potomac should be struck out, and a district to include the town of Baltimore be inserted. Mr. BURKE seconded this motion. Mr. LEE desired the gentleman to inform the committee where he meant the temporary residence should be, provided this motion should be carried. Mr. SHERMAN said, he had no objection to making Philadelphia the temporary residence, as soon as it was convenient. He then mentioned several particulars which would render it inconvenient to go there at present. Mr. HUNTINGTON said, that the only reason for removing, which he had ever heard was, that this place is not so central. If there is any force in the reasoning, he wished not to go to a place less central. He adverted to the mode of conveyance to this place, generally adopted by members to get to the seat of Government. He supposed that the present centre was somewhere between Philadelphia and Baltimore; but the place contemplated is very much removed from the centre, more than three hundred miles west. With respect to centrality, he said that it is not an idea which predominates in regard to any other country of which he knew any thing respecting the geography; other and various important considerations operated in fixing the seat of Government. Mr. WHITE observed, that if this House was alone to be consulted, on the principle of accommodation, Baltimore might answer; but when it is considered that this bill originated in the other House, who have an equal voice with us in determining the question, and in which this place has been repeatedly rejected, it is evident, that, if the clause is struck out the bill will be lost. He then controverted the calculations of the gentleman last speaking, and stated the difference of travel between the Southern and Northern distances, which is made to be as four and one-half to one; but he said, that so far as respected himself, he should make no difficulty on that account; but the accommodation of the citizens who may have business at the seat of Government is a consideration of very great importance. With respect to the uncentral situation of the seat of Government in other countries, this arose from the mere whims of the sovereigns of those kingdoms; but modern policy has obliged the people of European countries, (I refer particularly to Great Britain,) to fix the seat of Government near the centre of trade. It is the commercial importance of the city of London which makes it the seat of Government; and what is the consequence? London and Westminster, though they united send only six members to Parliament, have a greater influence on the measures of Government than the whole empire besides. This is a situation in which we never wish to see this country placed. He concluded by observing, that if this amendment is agreed to, the bill will be lost, and we shall be without either a temporary or permanent residence. Mr. LEE, after a few introductory observations, entered into a consideration of the relative interests of the Southern, Middle, and Northern States. He interspersed a variety of reflections, tending to conciliate and blend those different interests--and to disseminate the sentiments of union and concord. He alluded particularly to the great object of funding the debts of the United States; the seat of Government will concentrate the public paper. Hence he inferred the necessity of a situation from whence all parts of the Union may be equally benefited. From these considerations, he deduced the necessity of placing the Government in a central situation. He observed, that while the present position continued to be the seat of Government, the agriculture of the States to the eastward is invigorated and encouraged, while that to the southward is languishing and expiring. He then showed the fatal tendency of this preponderating encouragement to those parts of the country, already considered as the strongest parts of the Union--and from the natural operation of these principles he inferred that the interest of the Southern States must be eventually swallowed up. The decision of the Senate, said he, affords a most favorable opportunity to manifest that magnanimity of soul, which shall embrace, upon an extensive, liberal system, the best interest of the great whole. This cannot be done while the present unequal situation of the seat of Government of the United States continues. Nations have their passions as well as individuals. He drew an alarming picture of the consequences to be apprehended from disunion, ambition and rivalship. He then gave a pleasing sketch of the happy effects to be derived from a national, generous, and equal attention to the Southern and Northern interests. Will gentlemen, said he, blast this prospect by rejecting the bill? I trust they will not. He then entered into the merits of the question. The States of Delaware, Pennsylvania, Maryland, and Virginia, which contribute more than one-half to the revenue, and which have the only rival claim to the permanent seat of Government, are satisfied with the arrangement in the bill. That Philadelphia is the nearest centre of the present wealth and population of the United States, the gentlemen from New York themselves will confess; the Potomac will become the nearest centre for a permanent residence probably by the period proposed--to oppose this, therefore, will be acting from merely local motives. The gentleman moves to insert Baltimore. Mr. L. insisted that Baltimore is as far South as the place proposed, besides being exposed by its frontier position on the sea; we are not confined, said he, to a particular spot on the Potomac; we may fix on a place as far North as the gentleman from Connecticut wishes. I consider the motion, therefore, calculated to destroy the bill, and ought to be opposed by every one who is in favor of a Southern situation. This State has no pretensions to the permanent residence. It is true the citizens of this place have put themselves to a great expense to accommodate the Government, and are entitled to much praise for their exertions; but he wished to take up the subject on national ground, and to have it decided on principles which apply to the best interests of the whole. He then referred to a map of the Potomac, and the adjacent country, which lay on the table, and which had been sent from the Executive of the State of Virginia. He referred also to other papers and documents. Mr. BURKE said, he wished that the whole business of the temporary and permanent residence might now be settled. He exculpated the members who are in favor of Baltimore from all design to defeat the present bill. He referred to some observations which had been made on the conduct of the members of the States south of Virginia, and said, that they had consulted the interest of the whole. One reason why he was in favor of the motion was, because he preferred Baltimore to Conococheague. He thought a populous city better than building a palace in the woods. Another reason was, that there was no political necessity existing for removing the Government from New York to Philadelphia. He said that the measure would excite the most turbulent passions in the minds of the citizens. It is unjust to the people of this city, to remove from this place till the expense they have incurred is repaid them. It is a breach of honesty and justice. It is injustice to the State--to the whole nation. He entered into a consideration of their sacrifices and services. He thought it a very extraordinary measure indeed. It is calculated, said he, to arrest the funding system, and to throw every thing into confusion. If the bill is passed in its present form, Congress will never leave Philadelphia; for the Commissioners to be appointed will incur no penalty for a neglect of doing their duty. This is a most essential defect in the bill, and there are other defects in it. He spoke in handsome terms of the State of Pennsylvania. He said he had as high an opinion of that State, as any man whatever, but he was afraid of their influence; and that State was the last in which he would ever consent the permanent seat of Government should be. He then adverted to the influence of the members from that State, who by their political management, had raised a storm in the United States. [Here Mr. BURKE was called to order.] After a short interruption, he proceeded, and said a Quaker State was a bad neighborhood for the South Carolinians. Here he adverted to the Quaker business last winter. He objected to Philadelphia, also, on account of there being no gallery in the House proposed for the accommodation of Congress--an open gallery he considered as a very important check to the Legislature. Mr. LAWRENCE.--The gentleman from Virginia has observed, that the object of the amendment is to defeat the bill. He has also mentioned the States which are most particularly interested in the question. Mr. L. said, the State of New York might have been considered. He wished the motion might succeed, because he thought that it would conduce to the peace of the Union. He objected to the place proposed for the permanent residence; by the bill it is conceded that the place is not, at present, a suitable position. By what magic can it be made to appear it will be more proper at the end of ten years? What reason can be given why those parts of the Union should not populate which are at a distance from the Potomac, in proportion to those parts in the vicinity of that place? I presume none can be assigned. Why, then, is a period of ten years to expire, previous to going there? The reason is plain. The people would not now consent to have the Government dragged to so remote a part of the United States. He then adverted to the funding business, and other important matters which remain to be decided on, and very strongly intimated that these questions were to be determined agreeable to the fate of this bill. He showed, from a variety of particulars, that Philadelphia would become the permanent residence. He then adverted particularly to the several parts of the bill. The first was respecting the place where it is proposed to erect the public buildings. He said, they could not be erected within the time mentioned, and showed the various difficulties which would attend the whole business. He then stated the advantages of Baltimore, and said that that place would have obtained in the Senate, if the Maryland Senators would have voted for it. He concluded by observing, that, as no necessity exists for removing the temporary residence, he hoped that Congress would sit down contented where they are. Mr. BLOODWORTH observed, that as the funding bill had been alluded to, he could wish that the objection from that quarter might be taken out of the way. He moved that the committee should rise, in order to take up the ways and means. Mr. STONE.--All we seem to differ about is whether Baltimore or the Potomac shall be the seat of the Government; and if this was all, the Delegates of that State might fold their arms and sit down contented; but the State of Maryland has been placed in the situation of Tantalus. He then stated how the gentlemen had formerly voted, who now appear in favor of Baltimore. Had the bill come down from the Senate with Baltimore inserted, instead of Potomac, he should have had no difficulty in determining how to act; but he conceived, that if the amendment now proposed should take place, nothing would be done, and the business will be left in a very inauspicious state. From this and other considerations, he was resolved not to be drawn off from his present determination by any motion, amendment, or modification of the bill whatever. With respect to himself, he had no election between the town of Baltimore and the Potomac; yet, as a Marylander, he would, if he saw a prospect of success, vote for the town of Baltimore; but as it respects the United States, he should vote for the Potomac; and on this idea he was willing to make some sacrifices. He considered the subject as one of the most painful and disagreeable that could be agitated, and he wished to have the business finally and unalterably fixed. Mr. SENEY also considered this as an unhappy question to come before the House at this time. The State of Maryland is as much divided on the subject as the United States appeared to be; a great rivalship subsists between the Potomac and Susquehanna rivers, and he doubted not but that when the question was ultimately decided, it would be either on the one or the other of those rivers. He agreed with Mr. LEE, that Pennsylvania, Maryland and Virginia, were the only States who could make any reasonable pretensions for the seat of Government; but a majority of voices from these States had been against the Potomac. Pennsylvania and Maryland, he observed, had given the preference to the Susquehanna. Mr. S. then noticed some transactions of the Legislature of Maryland, which he said clearly evinced their determination to support the pretensions of the Susquehanna. Maryland certainly had an equal right with Pennsylvania and Virginia to have her interests consulted. The interests of Maryland, it appeared, were now to be sacrificed to those two adjoining States. And however flattering it may seem to Maryland to fix the seat of Government on her side of the Potomac, the real advantages were in a great measure nugatory, as it would be but a very small portion of that State that could reap any benefit therefrom. The real advantages would undoubtedly result to Pennsylvania and Virginia. It appeared somewhat extraordinary to him, that gentlemen should be willing to confine the residence to a particular spot, previous to their removing to a permanent residence. Why is it necessary to fix upon Philadelphia for ten years? Surely this is putting the Government in a very ineligible situation, for it is by no means improbable that many serious and important occurrences might render a removal highly expedient, perhaps unavoidable. Besides, after the Government shall have remained ten years in Philadelphia, the probability of quitting it for the Potomac appeared to be very slight indeed. For though it was understood by the bill that the offices were to be removed to the Potomac, yet if a majority in either House were opposed to going there, Congress would remain at Philadelphia, and they would be obliged to repeal the bill from necessity. Mr. SCOTT said, he should not notice many things which had been offered on the subject. He would only observe, that from the town of Baltimore there is no water conveyance to the interior country; but from the proposed site on the Potomac, there are two hundred miles navigation directly into the heart of the country. Nor is Baltimore more northerly than the position contemplated. A connection with the Western country is of the utmost consequence to the peace and union of the United States, let the gentlemen from the sea-coast say what they will. Mr. MADISON.--In order to decide this question rightly, we ought to compare the advantages and disadvantages of the two places as they relate to the good of the United States. Now, I will defy any gentleman, however sanguine he may be with respect to Baltimore, to point out any substantial advantage that is not common to the Potomac; and I defy them to disprove that there are not several important advantages belonging to the Potomac, which do not appertain to Baltimore. The committee have had ample information with respect to the Northern and Southern positions of the two places. In point of salubrity of air, without disparaging the pretensions of Baltimore, the Potomac is at least equally favored in that respect. In regard to centrality of situation, the Potomac has undoubtedly the advantage. In respect to security from invasion, I aver the Potomac has the advantage also. With relation to the Western country, there is not a shadow of comparison. If we should go as far South as Baltimore, why not an equal distance south-west to the Potomac? Those who are acquainted with the country on the Potomac, and that in the neighborhood of Baltimore, do not hesitate to give the preference to the Potomac. It is true, that Baltimore has respectable resources; her rapid growth is a clear proof of it; but look at the resources of the Potomac; the great range of rich country that borders on it, and see if these are not advantages that must, in a short time, produce a commercial town. Sir, a period might be named, not exceeding ten years, within which the town of Baltimore obtained the greater part of its increase and consequence; a period of ten years will produce the same effects on the Potomac, because the same causes exist; and when, superadded to this, the residence of Government shall be there, there can be no doubt but that there will be every accommodation that can be desired. It is said, that before the ten years expire, a repeal of the act may take place, and thus Congress be kept at Philadelphia. But what more can we do than pass a law for the purpose? It is not in our power to guard against a repeal. Our acts are not like those of the Medes and Persians, unalterable. A repeal is a thing against which no provision can be made. If that is an objection, it holds good against any law that can be passed. If those States that may have a superiority in Congress at a future day will pay no respect to the acts of their predecessors, or to the public good, there is no power to compel them. But I flatter myself that some respect will be paid to the public interest, and to the plighted faith of the Government. As to centrality, the best evidence we have at this time in favor of the Potomac is the different travelling of the members; and this, sir, proves incontestably that the proposed place on the Potomac is near the centre. If any arguments could be brought against it, it is its being too far to the northward. For the mileage south of the Potomac is twelve thousand seven hundred and eighty-two miles, to the north of it twelve thousand four hundred and twenty-two miles. If to this Rhode Island be added, it will not be more than equal. If the bill once passes, I am not under any apprehensions of a repeal; but if danger of repeal does exist, it is of that kind against which we cannot guard. Sir, we should calculate on accepting the bill as it now stands; we ought not to risk it by making any amendment. We have it now in our power to procure a Southern position. The opportunity may not again speedily present itself. We know the various and jealous interests that exist on this subject. We should hazard nothing. If the Potomac is struck out, are you sure of getting Baltimore? May no other place be proposed? Instead of Baltimore, is it not probable we may have Susquehanna inserted, perhaps the Delaware? Make any amendment, sir, and the bill will go back to the Senate. Are we sure that it will come back into our possession again? By amending, we give up a certainty for an uncertainty. In my opinion, we shall act wisely, if we accept the bill as it now stands, and I beg leave to press it on gentlemen not to consent to any alteration, lest it be wholly defeated and the prospect of obtaining a Southern position vanish for ever. Mr. GERRY said, he rose with greater reluctance on this than he ever did on any former occasion; and it is because it appears pretty evident the advocates of the bill are sure of a majority, and are determined not to change their minds let what arguments will be offered on the subject. The business of establishing the permanent residence is contrary to the sentiments of a majority of the members of this House, and of the Senate, as they have both negatived a bill for this purpose the present session. It is to be regretted that it has ever been brought forward, for it is very evident that it has had a very pernicious influence on the great business of funding the public debt. He then mentioned the former removals of Congress, which had never been complained of, as the public business was never neglected. He said, that if the present bill is carried into execution, a very great uneasiness will ensue; for the measures of Congress, and not their residence, are the objects of concern to the people. Those States who think that they shall be injured, it cannot be expected will then acquiesce. He then gave an account of the process of this measure the last session. The travelling has been mentioned. This, he said, could not be considered as an argument in favor of the bill, for the expense is not paid by particular States, it comes out of the common treasury. He asserted that the accessibility to New York is better than to the Potomac. He contended that the risk by land is greater than by water. He stated the advantages that the Southern members derived from coming to the northward, while, on the other hand, is there, asked he, any thing to balance the risk and difficulties which the Northern members must encounter in such a Southern situation? He said it was highly unreasonable to fix the seat of Government in such a position as to have nine States out of thirteen to the northward of the place. He adverted to the sacrifices which the Northern States are ready to make in being willing to go so far south as Baltimore. He contended that the explicit consent of the Eastern States ought to be obtained, before they are dragged still further south. He ridiculed the idea of fixing the Government at Conococheague. He did not think there was any serious intention of ever going to this Indian place. He considered the whole business as a mere manoeuvre. Baltimore holds out the only prospect of a permanent seat of Government. He recapitulated the account which before had been given. From this he adverted to the general expectation of the public with respect to the Government's tarrying here till the permanent seat was established. He particularized the expenses that had been incurred by the citizens, and for which they merited great honor. He said, it had been promised to New York that this place should be the temporary residence of Congress, and on this engagement they came into an unconditional adoption of the constitution. Should this bill pass, what can it be denominated but a delusion, a deception, sanctioned by Congress itself? He remarked on the several observations offered by Messrs. MADISON, LEE, STONE, and SCOTT. Mr. VINING.--When I find arguments made use of to inflame the minds of gentlemen against the members of this House, I think it my duty to notice such observations. Attempts are made to hold up, in an odious point of light, the members of Pennsylvania. Sir, it is a fact, which your Journals will justify, that the members from Pennsylvania voted the last session against Philadelphia. I trust that none of those observations will have the least influence on the mind of one single individual. We are sent here to do the public business, and I trust that our constituents have not sent men that are to be deterred from doing their duty by such insidious insinuations, such ill-founded suggestions of deceiving and deluding the citizens of this place. Mr. V. added some more strictures on Mr. GERRY's observations, and then entered largely into the merits of the question. He supported the bill on general principles, and noticed the several objections that had been made by different members. He imputed the embarrassments of the public business to the assumption, and not to the subject of residence. Mr. CLYMER made a few remarks on the observations of Mr. BURKE, which were not distinctly heard. The committee rose, and reported progress WEDNESDAY, July 7. _Seat of Government._ The House again resolved itself into a committee on the bill for establishing the temporary and permanent seat of Government, Mr. BOUDINOT in the chair. Mr. BURKE made some remarks on the observations of Mr. VINING, in which he exculpated himself from all design to excite mobs and tumults among the citizens of New York, as had been insinuated by that gentleman. He declared that he believed the citizens incapable of behaving so much out of character. For himself, he disclaimed any such idea. He further observed, that the delegates from Pennsylvania were fully competent to advocate the interests of their particular State; they had given abundant evidence of their abilities; they therefore did not need the assistance of the gentleman from Delaware. Mr. HARTLEY observed, that it was the fault of the New York Senators last year that they did not vote for a four years' residence in their own city, and the permanent one at Germantown, which they could then have carried. He defended himself and his colleagues from any charge of want of generosity, and also defended the character of the Quakers. The gentleman (Mr. BURKE) is not acquainted with the people called Quakers or their history, or he would entertain different sentiments concerning them. Under the famous William Penn, they settled the former Province of Pennsylvania, between the years 1680 and 1690, near the close of the last century; and such was their justice, wisdom, moderation and good policy, that they gained reputation abroad. Men emigrated from the European world to this land of freedom. They preserved peace at home; for it was not until the year 1753, in a war, fomented on the borders of another Province, that an inhabitant of Pennsylvania was killed by the hands of an Indian. The Quakers had always been remarkable for their moral laws, for the plainness of their manners, and their benevolence. Nay, should the gentleman go to Philadelphia, he will find that these people will treat him as well as any other society. They merit not the abuse which has been so frequently thrown upon them. Mr. BLOODWORTH thought that if the New York Senators had acted wrong, yet the people should not be blamed for it. The proposition of Mr. BURKE was so reasonable and just, that he said he could not avoid approving of it. Mr. LAWRENCE defended the New York Senators, and explained the reasons of their former conduct, which, when it was known, he believed, would rather merit the approbation of the people. He then proceeded to remark upon the conduct of New York during the war and since. Her revenue had been thrown into the Treasury of the United States, and every succor that could possibly be expected was received from her. Upon the whole, he wished the dispute of residence could be left to the decision of the three Northern and three Southern States; and he appealed to the House, as politicians and men, for the justice of the case. Mr. WADSWORTH rose next. He was proceeding when he was called to order. After some altercation on the question of order, Mr. PAGE spoke to the merits of the question, in which he introduced several conciliatory observations, and then added, as to the place for the permanent residence of Congress, any unprejudiced disinterested man in the world, looking over the map of the United States, would put his finger on the district pointed out in the bill, and say, "This is your place, sir." As to going to Philadelphia, it is not my wish to go and stay there as proposed in the bill; but I say, with my colleague, (Mr. MADISON,) that I consent to go there to get into a more central position, and to be fairly on our way to the permanent residence on the Potomac. As to our present situation, the citizens of New York themselves acknowledge, nay, even the member himself who has called me to order, acknowledges that it has no pretensions to be the permanent residence; and it must be confessed that in proportion as it is improper for the permanent residence, it must be improper for the temporary residence. The continuance of Congress here has been acquiesced in by the Southern States, merely on the supposition that a removal to the permanent residence would take place sooner if Congress sat here than at some other place more central. The wise and virtuous citizens of New York know this, and cannot resist the removal. Sir, I was not apprehensive that the observations made by gentlemen yesterday could excite an improper resentment in their minds. There is not a city in the world in which I would sooner trust myself and Congress than in New York; for it is superior to any place I know for the orderly and decent behavior of its inhabitants; but, sir, when the member behind me, (Mr. BURKE,) who alluded to me when he was last up, said that they were injured and robbed by Congress, I told him, as a friend, that had I been in the chair, I should have called him to order. I confess I was shocked to hear that gentleman's declarations repeated by a member on the other side of the House, who is remarkable for his coolness and his peculiar attention to every sentiment offered in debate (Mr. GERRY.) I took the liberty, when the House adjourned, to tell that gentleman, perhaps too freely, what I thought respecting those declarations; if I gave him, or the member behind me any offence, I ask their pardon; but I still think I should have done my duty had I taken notice of the impropriety of their declarations in my place in the House, as a friend to order and freedom of debate. Mr. LIVERMORE said, that the motion for striking out the Potomac and inserting Baltimore is so reasonable in itself, that I cannot conceive there should be one person opposed to it. He observed, that Baltimore is as far south as the Potomac; the members will then have as far to go to one as the other. There is a river, it is said, which runs two hundred miles into the country as far as the Allegany mountains; what advantage can this be to Congress? I can conceive none, except that it may be to send the acts of Congress by water to the foot of the Allegany mountains. He thought that the centre of population was the only true centre. It is not pretended that the Potomac is at present this centre; but it is said that it will in time become the centre of population. What reason is there for any such supposition? The place in which this favorite spot is has been as long settled as any other part of the Continent, but the population has not kept pace with many other parts of the United States; it is therefore entirely chimerical and problematical whether it ever will become the centre of population. He then enlarged on the superior advantages of a populous city for the seat of Government, and concluded by repeating that the amendment is so reasonable in itself that he hoped every member of the committee would vote for it. Mr. GERRY.--In discussing this subject yesterday, I made use of such arguments as appeared to me pertinent to the occasion. But, sir, those arguments have had the most extraordinary construction put on them by the gentleman from Delaware; they have been represented as tending to excite mobs, and to raise insurrections in this city. Sir, I insist that the observations I made had a direct contrary tendency. I said that the bill contained those malignant principles which had a direct tendency to agitate and inflame the minds of the citizens of America. Those principles I was endeavoring to expose, and to show what must be their obvious effects. Is this exciting mobs? Directly the reverse, in my opinion. I never had any such idea; and as to the citizens of New York, I have too just a sense of their wisdom and good judgment to harbor such a sentiment. He then adverted to the constitution, to show that there could be no danger of an insurrection or rebellion against the Government. Congress is vested with a sufficient power to protect themselves from every insult whatever; they have a right to call forth the whole militia of the Union for their protection. [Here Mr. G. was called to order, and some altercation ensuing, Mr. G. said he would say nothing farther on this particular topic.] He then proceeded to state his arguments against the Potomac, in the course of which he noticed some observations which had fallen from Messrs. VINING and CLYMER. One of the gentlemen had said that "Pennsylvania had a right to the seat of the General Government." This he denied; he said no State in the Union could pretend to such a right; Congress alone has a right to determine where the seat of Government shall be. He entered into a lengthy discussion on the merits of the Potomac, and among other observations asserted that taking so southern a situation would amount to a disqualification of many of the Northern members, who would forego their election rather than attend the National Legislature on that river. Mr. VINING read a report of a committee of the late Congress, respecting two seats of Government, in which report Georgetown was mentioned. Mr. GERRY, being one of this committee, rose to explain. Mr. SEDGWICK, in a speech of considerable length, stated his objections to so southern a situation as either Baltimore or the Potomac, and said that he should have the unhappiness, he feared, of dividing on the question from his colleagues. Mr. SHERMAN offered some calculations respecting distances, and made Baltimore to be the nearest to the centre of any other place that had been mentioned. Mr. WHITE said, he had no idea of altering the sentiments of a single member of the committee; he did not expect the gentleman from New Hampshire would agree with him. The gentleman from Massachusetts had said something about the Government going into the wilderness; he said it was true that there was not at present every accommodation which gentlemen might wish; but there is every probability that there will be. He said that such improvements were making in the navigation of the Potomac as will render it a place affording every accommodation whether Congress go there or not. He instanced several places on the Potomac which were at this day sufficiently populous to accommodate Congress. He then adverted to situations, and observed that a line from the Atlantic, east and west, to the extreme point mentioned in the bill, will intersect the State of New Jersey, include the whole of Delaware and Maryland, and will throw thirty-one members of the representation in the southern division of the United States. He then observed, that after the present ferment is subsided, this position will be considered as a permanent bond of union; and the Eastern States will find their most essential interests promoted by the measure. He adverted to the trade of Massachusetts, which he said was greater to Virginia than to the whole Union besides; the Southern States will be cordial in promoting their shipping and advancing their interests, when they observe that the principles of justice influence them on this great national question. He then remarked on the observation of Mr. SHERMAN respecting the repealing of the law, and reprobated the principles on which such observations are founded; he remarked on the attraction of populous cities, and trusted that other ideas would prevail in this country than what influenced in fixing the seats of Government in Europe. Mr. SMITH (of South Carolina) said, he was in favor of the motion, as the only one which held out a probability of ever fixing on a southern residence. He enlarged on the difficulty and improbability of ever removing from Philadelphia. He said that it was evident, from the present representation, and what is most likely it will be ten years hence, that Congress could not be removed from that place. He then stated the number of the members to the southward and northward of Philadelphia, and observed that the Congress that would exist at the expiration of ten years may think entirely different from the present, and will not think themselves bound by the law; but if they should, what can the measure be denominated but legislating for the next century? A system proposed the last session, which combined a much greater interest than the present, failed; and what reason have we to suppose that this bill will ever be carried into execution? He said no gentleman pretends that the place proposed is now ready for the reception of the Government; and even if the buildings were now erected, is there any gentleman who would give his vote for going there? He would agree to a place in the neighborhood of Baltimore, and this he supposed was the furthest southern position the gentlemen from the eastward will ever consent to. From all the views he could take of the measure, he was fully convinced that the Potomac was tacked to the bill merely to carry Philadelphia; he wished gentlemen seriously to consider the consequences of passing a law which would so intimately and inauspiciously affect the interests of so many people. Mr. MADISON objected to the motion for inserting Baltimore, as it would be risking the bill with a place which has already been repeatedly rejected by the Senate; he religiously believed, he said, that if Baltimore was inserted the bill would never pass the Senate; and the fate of the bill which the gentleman mentions ought to be a serious warning to us never to risk this with an amendment; the instance, therefore, produced by the gentleman, is very much against his own argument. The question being put for striking out the word "Potomac," and inserting "Baltimore," it was negatived--37 to 23. THURSDAY, July 8. _General Post Office._ The House proceeded to consider the amendments proposed by the Senate to the bill to establish the Post Office and post roads within the United States. The first amendment was to strike out the first and second sections, which specified and established the several roads, and to insert a clause empowering the Postmaster General, under the direction of the President of the United States, to establish them. A concurrence in this amendment was opposed by Messrs. BLOODWORTH, WHITE, STEELE, LIVERMORE, HARTLEY, and GERRY. It was said, that it was delegating the power of legislation to the Supreme Executive in one of the most important points that could be mentioned. The revenue also will centre in the hands of the Executive; and in process of time this revenue may be converted into an engine destructive to the liberties of the United States; for as it is a perpetual law, and as the time may, and probably will come, when the Executive may be corrupt, as the revenue increases, the officers of the department will be increased, and we do not know to what extent the consequences may be carried. It is unconstitutional, as that expressly reserves the power of establishing Post Offices and post roads to the Legislature. It was further observed, it would be throwing a burden upon the President which he cannot execute with any convenience to himself, and, from his situation, with satisfaction to the people. The representatives of the people, who come from all parts of the United States, must be supposed to have a more competent knowledge of the proper places for establishing post roads than the Postmaster General. A concurrence was advocated by Mr. PARTRIDGE, and Mr. SEDGWICK. It was said, that upon an accurate calculation it was found that the roads proposed by the bill as it passed the House, are so numerous, that so far from affording a revenue, they will prove a great burden to the United States. The circumstances of the country are continually changing; the seats of Government in the several States are removed from their ancient situations to one hundred miles' distance; to accommodate the people in such cases, old routes must be discontinued and new roads opened, which will be a perpetual source of legislation and unnecessary expense. This business was left to the Postmaster General by the late Congress, and very few complaints were heard; the Postmaster General, by his office, must be the most competent judge, as the business will be a principal object of his attention, and actual surveys of the roads will be made by his assistants in all parts of the United States; but if the responsibility of this officer is divided into sixty-five parts, every one of which has its own particular convenience in view, it must appear evident that all responsibility is entirely dissipated. As to the unconstitutionality, it was said that the bill proposes no more in the present instance than is provided for in the other Executive Departments; the principles of conducting the business are established by the House; the mode of carrying those principles into execution is left with the Executive, and this of necessity is done in almost every case whatever. The House adjourned without coming to a vote. FRIDAY, July 9. _Seat of Government._ The House proceeded to consider the bill sent from the Senate for the establishing the temporary and permanent seat of Government of the United States. Mr. BOUDINOT, after expressing his disapprobation of the bill generally, moved that the Potomac should be struck out and the Delaware inserted, and called for the yeas and nays; after some debate, this motion was negatived, as follows: YEAS.--Messrs. Ames, Benson, Boudinot, Floyd, Foster, Gerry, Goodhue, Grout, Huntington, Hathorn, Leonard, Lawrence, Livermore, Partridge, Rensselaer, Trumbull, Schureman, Sherman, Sylvester, Sturges, Sedgwick, Wadsworth--22. NAYS.--Messrs. Ashe, Baldwin, Bloodworth, Brown, Burke, Cadwalader, Carroll, Clymer, Coles, Contee, Fitzsimons, Gilman, Heister, Hartley, Jackson, Gale, Griffin, P. Muhlenberg, Madison, Mathews, Moore, Page, Parker, Lee, Steele, Scott, Sinnickson, Stone, Sevier, Seney, Smith, (of Maryland,) Smith, (of South Carolina,) Sumter, Thatcher, Tucker, Vining, White, Williamson, Wynkoop--39. Mr. AMES moved to strike out Potomac and insert Germantown, as the permanent residence. Yeas 22, nays 39. Variation--Mr. GILMAN, yea; Mr. TRUMBULL, nay. Mr. SMITH (of Maryland) moved to strike out Potomac and insert between the Potomac and Susquehanna. Yeas 25, nays 36. Variation--Messrs. SMITH, (of Maryland,) SMITH, (of South Carolina,) TRUMBULL, and THATCHER, yea; Mr. SHERMAN, nay. Mr. LAWRENCE moved to strike out Potomac and insert Baltimore. YEAS.--Messrs. Ames, Benson, Boudinot, Floyd, Foster, Gerry, Goodhue, Grout, Hathorn, Huntington, Lawrence, Leonard, Livermore, Rensselaer, Partridge, Schureman, Sedgwick, Seney, Sherman, Smith, (of Maryland,) Smith, (of South Carolina,) Sylvester, Sturges, Thatcher, Trumbull, Wadsworth--26. NAYS.--Messrs. Ashe, Baldwin, Bloodworth, Brown, Cadwalader, Carroll, Clymer, Coles, Contee, Fitzsimons, Gilman, Gale, Griffin, Hartley, Heister, Jackson, Lee, Madison, Mathews, Moore, Muhlenberg, Page, Parker, Scott, Sevier, Sumter, Sinnickson, Steele, Stone, Tucker, Vining, White, Williamson, Wynkoop--34. A motion was made to adjourn; which was also negatived. The bill was then read the third time; and on the question, Shall the bill pass? the yeas and nays were as follows: YEAS.--Messrs. Ashe, Baldwin, Bloodworth, Brown, Cadwalader, Carroll, Clymer, Coles, Contee, Fitzsimons, Gale, Griffin, Hartley, Heister, Jackson, Lee, Madison, Mathews, Moore, Muhlenberg, Page, Parker, Scott, Sevier, Sinnickson, Steele, Stone, Sumter, Vining, White, Williamson, Wynkoop--32. NAYS.--Messrs. Ames, Benson, Boudinot, Burke, Floyd, Foster, Gerry, Goodhue, Gilman, Grout, Hathorn, Huntington, Lawrence, Leonard, Livermore, Partridge, Rensselaer, Schureman, Sedgwick, Seney, Sherman, Sylvester, Smith, (of Maryland,) Smith, (of South Carolina,) Sturges, Thatcher, Trumbull, Tucker, Wadsworth--29.[37] THURSDAY, August 12. Agreeably to the concurrent vote of the two Houses, an adjournment took place this day--to meet in the city of Philadelphia on the first Monday in December next. Previous to the adjournment, a unanimous vote passed both Houses, returning thanks to the Corporation of this City for the elegant and convenient accommodations furnished the Congress of the United States. Adjourned, _sine die_. FIRST CONGRESS.--THIRD SESSION. HELD AT THE CITY OF PHILADELPHIA, DECEMBER 6, 1790 PROCEEDINGS IN THE SENATE. MONDAY, December 6, 1790. The Senate assembled: present, JOHN ADAMS, Vice President of the United States, and President of the Senate. From New Hampshire, JOHN LANGDON and PAINE WINGATE. From Massachusetts, TRISTRAM DALTON. From Connecticut, OLIVER ELLSWORTH. From New York, RUFUS KING. From Pennsylvania, WILLIAM MACLAY and ROBERT MORRIS. From Delaware, RICHARD BASSETT. From North Carolina, SAMUEL JOHNSTON and BENJAMIN HAWKINS. From South Carolina, PIERCE BUTLER and RALPH IZARD. From Georgia, WILLIAM FEW. PHILEMON DICKINSON, from the State of New Jersey, produced his credentials and took his seat in the Senate, in the place of Governor PATERSON. JAMES MONROE, appointed by the Legislature of the State of Virginia, in the place of JOHN WALKER, who was appointed by the Executive of the said State in the room of WILLIAM GRAYSON, deceased, produced his credentials, and took his seat in the Senate. The VICE PRESIDENT administered the oath required by law to Mr. DICKINSON and Mr. MONROE, respectively. A letter was read from WILLIAM PATERSON, Governor of the State of New Jersey, communicating the resignation of his appointment to be a Senator of the United States. _Ordered_, That the Secretary inform the House of Representatives that a quorum of the Senate is assembled, and ready to proceed to business. TUESDAY, December 7. A message from the House of Representatives informed the Senate that a quorum of that body is assembled and ready to proceed to business. Messrs. LANGDON and MORRIS were appointed a committee, on the part of the Senate, to inform the President of the United States that a quorum of the two Houses is assembled, and will be ready, in the Senate Chamber, at such time as he may appoint, to receive any communication which he may be pleased to make. Mr. LANGDON, in the course of the day, reported that the President would meet the two Houses, as proposed, to-morrow, at 12 o'clock. WEDNESDAY, December 8. JONATHAN ELMER, from New Jersey; CALEB STRONG, from Massachusetts; and GEORGE READ, from the State of Delaware; attended. A letter from the Commissioners of the city and county of Philadelphia was received, offering to Congress the county court-house for their accommodation during their residence in Philadelphia. The members of the House of Representatives having taken their seats, the PRESIDENT OF THE UNITED STATES entered the Senate Chamber, and addressed both Houses as follows: _Fellow-Citizens of the Senate and House of Representatives:_ In meeting you again, I feel much satisfaction in being able to repeat my congratulations on the favorable prospects which continue to distinguish our public affairs. The abundant fruits of another year have blessed our country with plenty, and with the means of a flourishing commerce. The progress of public credit is witnessed by a considerable rise of American stock abroad as well as at home; and the revenues allotted for this and other national purposes have been productive beyond the calculations by which they were regulated. This latter circumstance is the more pleasing, as it is not only a proof of the fertility of our resources, but as it assures us of a further increase of the national respectability and credit; and, let me add, as it bears an honorable testimony to the patriotism and integrity of the mercantile and marine part of our citizens. The punctuality of the former in discharging their engagements has been exemplary. In conforming to the powers vested in me by acts of the last session, a loan of three millions of florins, towards which some provisional measures had previously taken place, has been completed in Holland. As well the celerity with which it has been filled, as the nature of the terms, (considering the more than ordinary demand for borrowing, created by the situation of Europe,) give a reasonable hope that the further execution of those powers may proceed with advantage and success. The Secretary of the Treasury has my directions to communicate such further particulars as may be requisite for more precise information. Since your last sessions I have received communications by which it appears that the district of Kentucky, at present a part of Virginia, has concurred in certain propositions contained in a law of that State; in consequence of which the district is to become a distinct member of the Union, in case the requisite sanction of Congress be added. For this sanction application is now made. I shall cause the papers on this very important transaction to be laid before you. The liberality and harmony with which it has been conducted will be found to do great honor to both the parties; and, the sentiments of warm attachment to the Union and its present Government, expressed by our fellow-citizens of Kentucky, cannot fail to add an affectionate concern for their particular welfare to the great national impressions under which you will decide on the case submitted to you. It has been heretofore known to Congress, that frequent incursions have been made on our frontier settlements by certain banditti of Indians from the north-west side of the Ohio. These, with some of the tribes dwelling on and near the Wabash, have of late been particularly active in their depredations; and, being emboldened by the impunity of their crimes, and aided by such parts of the neighboring tribes as could be seduced to join in their hostilities, or afford them a retreat for their prisoners and plunder, they have, instead of listening to the humane invitations and overtures made on the part of the United States, renewed their violences with fresh alacrity, and greater effect. The lives of a number of valuable citizens have thus been sacrificed, and some of them under circumstances peculiarly shocking, whilst others have been carried into a deplorable captivity. These aggravated provocations rendered it essential to the safety of the Western settlements, that the aggressors should be made sensible that the Government of the Union is not less capable of punishing their crimes, than it is disposed to respect their rights and reward their attachments. As this object could not be effected by defensive measures, it became necessary to put in force the act which empowers the President to call out the militia for the protection of the frontiers; and I have, accordingly, authorized an expedition, in which the regular troops in that quarter are combined with such drafts of militia as were deemed sufficient: the event of the measure is yet unknown to me. The Secretary of War is directed to lay before you a statement of the information on which it is founded, as well as an estimate of the expense with which it will be attended. The disturbed situation of Europe, and particularly the critical posture of the great maritime Powers, whilst it ought to make us the more thankful for the general peace and security enjoyed by the United States, reminds us, at the same time, of the circumspection with which it becomes us to preserve these blessings. It requires, also, that we should not overlook the tendency of a war, and even of preparations for a war, among the nations most concerned in active commerce with this country, to abridge the means, and thereby at least to enhance the price of transporting its valuable productions to their proper markets. I recommend it to your serious reflection how far, and in what mode, it may be expedient to guard against embarrassments from these contingencies, by such encouragements to our own navigation as will render our commerce and agriculture less dependent on foreign bottoms, which may fail us in the very moments most interesting to both of these great objects. Our fisheries, and the transportation of our own produce, offer us abundant means for guarding ourselves against this evil. Your attention seems to be not less due to that particular branch of our trade which belongs to the Mediterranean. So many circumstances unite in rendering the present state of it distressful to us, that you will not think any deliberations misemployed which may lead to its relief and protection. The laws you have already passed for the establishment of a Judiciary system have opened the doors of justice to all description of persons. You will consider, in your wisdom, whether improvements in that system may yet be made; and, particularly, whether a uniform process of execution, on sentences issuing from the Federal courts, be not desirable through all the States. The patronage of our commerce, of our merchants, and seamen, has called for the appointment of Consuls in foreign countries. It seems expedient, to regulate by law, the exercise of that jurisdiction, and those functions which are permitted them, either by express convention, or by a friendly indulgence, in the places of their residence. The Consular Convention, too, with His Most Christian Majesty, has stipulated, in certain cases, the aid of the national authority to his Consuls established here. Some legislative provision is requisite to carry these stipulations into full effect. The establishment of the Militia, of a Mint, of Standards of Weights and Measures, of the Post Office and post roads, are subjects which (I presume) you will resume of course, and which are abundantly urged by their own importance. _Gentlemen of the House of Representatives:_ The sufficiency of the revenues you have established for the objects to which they are appropriated, leaves no doubt that the residuary provisions will be commensurate to the other objects for which the public faith stands now pledged. Allow me, moreover, to hope that it will be a favorite policy with you not merely to secure a payment of the debt funded, but as far and as fast as the growing resources of the country will permit, to exonerate it of the principle itself. The appropriation you have made of the Western lands explains your dispositions on this subject, and I am persuaded the sooner that valuable fund can be made to contribute, along with other means, to the actual reduction of the public debt, the more salutary will the measure be to every public interest, as well as the more satisfactory to our constituents. _Gentlemen of the Senate and House of Representatives:_ In pursuing the various and weighty business of the present session, I indulge the fullest persuasion that your consultations will be equally marked with wisdom, and animated by the love of your country. In whatever belongs to my duty, you shall have all the co-operation which an undiminished zeal for its welfare can inspire. It will be happy for us both, and our best reward, if, by a successful administration of our respective trusts, we can make the established Government more and more instrumental in promoting the good of our fellow-citizens, and more and more the object of their attachment and confidence. GEO. WASHINGTON. UNITED STATES, _December_ 8, 1790. The President of the United States having retired, and the two Houses being separated, Messrs. ELLSWORTH, KING, and IZARD, were appointed a committee to prepare and report the draft of an Address to the PRESIDENT, in answer to his Speech to both Houses. THURSDAY, December 9. _To the President, and the Honorable the Congress of the United States of America._ The memorial of the Representatives of the people of Kentucky, in Convention assembled, pursuant to an act of the Legislature of Virginia, passed the 18th December, 1789, entitled "An act concerning the erection of the District of Kentucky into an independent State," humbly showeth: That the inhabitants of this country are warmly devoted to the American Union, and as firmly attached to the present happy establishment of the Federal Government, as any of the citizens of the United States. That, migrating from hence, they have, with great hazard and difficulty, effected their present settlements. The hope of increasing numbers could alone have supported the early adventurers under those arduous exertions. They have the satisfaction to find that hope verified. At this day, the population and strength of this country render it fully able, in the opinion of your memorialists, to form and support an efficient domestic Government. The inconveniences resulting from its local situation, as a part of Virginia, at first but little felt, have for some time been objects of their most serious attention; which occasioned application to the Legislature of Virginia for redress. Here your memorialists would acknowledge, with peculiar pleasure, the benevolence of Virginia in permitting them to remove the evils arising from that source, by assuming upon themselves a state of independence. This they have thought expedient to do, on the terms and conditions stipulated in the above recited act; and fixed on the first day of June, 1792, as the period when the said independence shall commence. It now remains with the President and the Congress of the United States to sanction these proceedings, by an act of their honorable Legislature, prior to the first day of November, 1791, for the purpose of receiving into the Federal Union the people of Kentucky, by the name of the State of Kentucky. Should this determination of your memorialists meet the approbation of the General Government, they have to call a Convention, to form a Constitution, subsequent to the act of Congress, and prior to the day fixed for the independence of this country. When your memorialists reflect upon the present comprehensive system of Federal Government, and when they also recollect the determination of a former Congress on this subject, they are left without a doubt that the object of their wishes will be accomplished. And your memorialists, as in duty bound, shall for ever pray. GEORGE MUTER, _President_. Attest, THOMAS TODD, _Clerk of the Con._ A letter from the Secretary of War was communicated to the VICE PRESIDENT, enclosing sundry papers referred to in the President's Speech to both Houses of Congress, on the 8th instant, which, being read, were ordered to lie for consideration. FRIDAY, _December_ 10. A letter from Monsieur Beniere, President of the Commonalty of Paris, addressed to the PRESIDENT and members of Congress of the United States, with twenty-six copies of a Civic Eulogy on BENJAMIN FRANKLIN, pronounced the 21st day of July, 1790, in the name of the Commonalty of Paris, by Monsieur L'Abbé Fauchet, was delivered to the Senate, by Mr. Lear, Secretary to the President of the United States. Read, and _Ordered_, That the letter and copies of the Eulogy be sent to the House of Representatives. A message from the House of Representatives informed the Senate, that they have, on their part, appointed the Rev. Dr. BLAIR one of the Chaplains of the present Congress. Mr. ELLSWORTH, from the committee appointed to prepare and report the draft of an Address to the President of the United States, reported accordingly; and, the report being amended, was adopted, as followeth: _To the President of the United States of America._ We receive, sir, with particular satisfaction, the communications contained in your speech, which confirm to us the progressive state of the public credit, and afford, at the same time, a new proof of the solidity of the foundation on which it rests; and we cheerfully join in the acknowledgment which is due to the probity and patriotism of the mercantile and marine part of our fellow-citizens, whose enlightened attachment to the principles of good government is not less conspicuous in this than it has been in other important respects. In confidence that every constitutional preliminary has been observed, we assure you of our disposition to concur, in giving the requisite sanction to the admission of Kentucky as a distinct member of the Union; in doing which, we shall anticipate the happy effects to be expected from the sentiments of attachment towards the Union, and its present Government, which have been expressed by the patriotic inhabitants of that district. While we regret that the continuance and increase of the hostilities and depredations which have distressed our north-western frontiers, should have rendered offensive measures necessary, we feel an entire confidence in the sufficiency of the motives which have produced them, and in the wisdom of the dispositions which have been concerted, in pursuance of the powers vested in you; and, whatever may have been the event, we shall cheerfully concur in the provisions which the expedition, that has been undertaken, may require on the part of the Legislature, and in any other which the future peace and safety of our frontier settlements may call for. The critical posture of the European Powers will engage a due portion of our attention, and we shall be ready to adopt any measures which a prudent circumspection may suggest, for the preservation of the blessings of peace. The navigation and the fisheries of the United States are objects too interesting not to inspire a disposition to promote them, by all the means which shall appear to us consistent with their natural progress and permanent prosperity. Impressed with the importance of a free intercourse with the Mediterranean, we shall not think any deliberations misemployed which may conduce to the adoption of proper measures for removing the impediments that obstruct it. The improvement of the Judiciary system, and the other important objects to which you have pointed our attention, will not fail to engage the consideration they respectively merit. In the course of our deliberations upon every subject we shall rely upon that co-operation which an undiminished zeal, and incessant anxiety for the public welfare, on your part, so thoroughly ensure; and, as it is our anxious desire, so it shall be our constant endeavor, to render the established Government more and more instrumental in promoting the good of our fellow-citizens, and more and more the object of their attachment and confidence. _Ordered_, That the Address to the President of the United States, in answer to his Speech, be presented by the Vice President, attended by the Senate, and that the committee which reported the Address wait on the President, and desire to be informed at what time and place he will receive the same. MONDAY, December 13. WILLIAM S. JOHNSON, from Connecticut, and PHILIP SCHUYLER, from New York, attended. Mr. ELLSWORTH, from the committee appointed on the 10th, to wait on the President of the United States, reported: That it would be agreeable to the President to receive the Address of the Senate, in answer to his Speech to both Houses of Congress, on Monday next, at 12 o'clock. Whereupon, The Senate waited upon the President of the United States at his own house, and the Vice President, in their name, communicated to him the Address agreed to on the 10th instant; to which the President of the United States was pleased to make the following reply: GENTLEMEN: These assurances of favorable attention to the subjects I have recommended, and of entire confidence in my views, make the impression on me which I ought to feel. I thank you for them both, and shall continue to rely much for the success of all our measures for the public good, on the aid they will receive from the wisdom and integrity of your councils. GEO. WASHINGTON. The Senate returned to the Senate Chamber. WEDNESDAY, December 15. JOSEPH STANTON, junior, from Rhode Island, attended. MONDAY, January 10. JOHN HENRY, from Maryland, attended. MONDAY, January 17. JAMES GUNN, from Georgia, attended. FRIDAY, January 21. CHARLES CARROLL, from the State of Maryland, attended. MONDAY, February 14. The Senate on Executive business. The following Message from the PRESIDENT OF THE UNITED STATES was under consideration: _Gentlemen of the Senate:_ Conceiving that in the possible event of a refusal of justice on the part of Great Britain, we should stand less committed should it be made to a private rather than a public person, I employed Mr. Gouverneur Morris, who was on the spot, and without giving him any definite character, to enter informally into the conferences before mentioned. For your more particular information, I lay before you the instructions I gave him, and those parts of his communications wherein the British ministers appear either in conversation or by letter. These are two letters from the Duke of Leeds to Mr. Morris, and three letters of Mr. Morris, giving an account of two conferences with the Duke of Leeds, and one with him, and Mr. Pitt. The sum of these is, that they declare, without scruple, they do not mean to fulfil what remains of the Treaty of Peace to be fulfilled on their part, (by which we are to understand the delivery of the posts and payment for property carried off,) till performance on our part, and compensation where the delay has rendered the performance now impracticable; that on the subject of a treaty of commerce they avoided direct answers, so as to satisfy Mr. Morris they did not mean to enter into one unless it could be extended to a treaty of alliance offensive and defensive, or unless in the event of a rupture with Spain. As to the sending a Minister here, they made excuses at the first conference, seemed disposed to it in the second, and in the last express an intention of so doing. Their views being thus sufficiently ascertained, I have directed Mr. Morris to discontinue his communications with them. GEO. WASHINGTON. UNITED STATES, _Feb._ 14, 1791. _Ordered_, That this Message lie for consideration. TUESDAY, February 15. RICHARD HENRY LEE, from Virginia, attended. No business of importance before the Senate to-day. THURSDAY EVENING, March 3. A message from the House of Representatives informed the Senate that they, having completed the Legislative business before them, intend shortly to adjourn without day. _Ordered_, That the Secretary acquaint the House of Representatives that the Senate, having completed the Legislative business before them, are about to adjourn; and having acquainted the VICE PRESIDENT that he had delivered the message, The Senate adjourned without day. FIRST CONGRESS.--THIRD SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, December 6, 1790. On which day, being the day appointed by adjournment of the two Houses for the meeting of the present session, the following members appeared and took their seats, to wit: _From New Hampshire_--ABIEL FOSTER, NICHOLAS GILMAN, and SAMUEL LIVERMORE. _From Massachusetts_--FISHER AMES, BENJAMIN GOODHUE, and GEORGE THATCHER. _From Connecticut_--BENJAMIN HUNTINGTON, ROGER SHERMAN, and JONATHAN STURGES. _From New York_--EGBERT BENSON, WILLIAM FLOYD, JOHN LAWRENCE, and PETER SYLVESTER. _From New Jersey_--ELIAS BOUDINOT, LAMBERT CADWALADER, and JAMES SCHUREMAN. _From Pennsylvania_--GEORGE CLYMER, THO'S FITZSIMONS, FREDERICK AUGUSTUS MUHLENBERG, PETER MUHLENBERG, and HENRY WYNKOOP. _From Maryland_--JOSHUA SENEY. _From Virginia_--JOHN BROWN, SAMUEL GRIFFIN, and JAMES MADISON, Junior. _From North Carolina_--TIMOTHY BLOODWORTH and HUGH WILLIAMSON. _From South Carolina_--WILLIAM SMITH. _From Georgia_--ABRAHAM BALDWIN. Which not forming a quorum of the whole number, the House adjourned until to-morrow. TUESDAY, December 7. DANIEL HEISTER and THOMAS SCOTT, from Pennsylvania; RICHARD BLAND LEE, from Virginia; and DANIEL HUGER, from South Carolina, appeared and took their seats. WILLIAM B. GILES, from Virginia, returned in the place of Theodorick Bland, deceased, also appeared, produced his credentials, and took his seat. WEDNESDAY, December 8. ELBRIDGE GERRY and JONATHAN GROUT, from Massachusetts; ANDREW MOORE and ALEXANDER WHITE, from Virginia; and THOMAS TUDOR TUCKER, from South Carolina, appeared and took their seats. A message from the Senate informed the House that they are ready to meet the members of this House in the Senate Chamber, to receive the usual communication from the President of the United States. Mr. SPEAKER, attended by the members of this House, then withdrew to the Senate Chamber, for the purpose expressed in the above message. And being returned, the SPEAKER laid before the House a copy of the Speech, delivered by the PRESIDENT (which will be found in the proceedings of the Senate), Which being read, it was, on motion, committed to the consideration of a Committee of the whole House to-morrow. THURSDAY, December 9. JAMES JACKSON and GEORGE MATHEWS, from Georgia, appeared and took their seats. _Address to the President._ On motion, the House resolved itself into a Committee of the Whole on the Speech of the President of the United States, Mr. LIVERMORE in the chair. On motion of Mr. LAWRENCE, the committee agreed to a resolution, which the committee rose and reported to the House, which was concurred with as follows: _Resolved_, that it is the opinion of this committee, that an Address ought to be presented by the House to the President of the United States, in answer to his Speech to both Houses, with assurances that this House will, without delay, proceed to take into consideration the various and important matters recommended to their attention. And Messrs. MADISON, AMES, and TUCKER, were appointed to prepare the Address. FRIDAY, December 10. GEORGE PARTRIDGE, from Massachusetts; JONATHAN TRUMBULL and JEREMIAH WADSWORTH, from Connecticut; THOMAS SINNICKSON, from New Jersey; and WILLIAM SMITH, from Maryland, appeared and took their seats. SATURDAY, December 11. A translation of the Letter from the President of the Commonalty of Paris, addressed to the Federal Legislature, was read as follows: _Mr. President--Gentlemen:_ The news has reached our ears--FRANKLIN is no more!--FRANKLIN, the citizen of the world!--All nations are indebted to him for instruction in every branch of science. They are all bound to participate in the grief occasioned by this common loss. But the Assembly of the Representatives of the Commonalty of our capital, thinking it their duty, in addition to the general mourning, to pay to his memory a further tribute of honor, have ordered, by a public decree, that the virtues and talents of this great philosopher should be perpetuated to distant ages, in a public and solemn Eulogy--the first of the kind ever bestowed by our nation on civic worth. By order of the Assembly I transmit it to your hands; and, with the most lively sensations of pleasure, embrace the opportunity of paying due homage to a body of men, who not only possess, but are justly entitled to enjoy the sweets of Liberty. May the approbation of your Assembly attend, as well the present itself, as the fraternal and respectful sentiments with which I am, Mr. President--Gentlemen, Your most obedient humble servant, BENIERE, _Doctor of the Sorbonne, Suppletory Member of the National Assembly, and President of the Commonalty of Paris._ To the PRESIDENT and CONGRESS _of the United States_. The letter accompanied twenty-six copies of the Eulogium on Dr. FRANKLIN, delivered by the Abbé Fauchet, pursuant to a decree of that body. Mr. BOUDINOT proposed that thirteen copies of the Eulogium be returned to the President of the United States and the Senate; which was done. Mr. SMITH (of South Carolina) observed, that it would be proper to request the President of the United States to return an answer to the President of the Commonalty of Paris, or that a Joint Committee of the House and Senate should be appointed for the purpose. He was not tenacious of any particular mode, but supposed it highly proper that some notice should be taken of the polite attention shown the Government by the President of the Commonalty of Paris. The business was specially committed to the SPEAKER. Agreeably to the order of the day, the House resolved itself into a Committee of the Whole, to take into consideration the Address to the President of the United States, in answer to his Speech to both Houses, as reported yesterday. Mr. LIVERMORE in the chair. The Address was read by the clerk, and then discussed by the committee in paragraphs. On reading the clause respecting the Western expedition against the Indians, Mr. JACKSON rose and observed, that he was as fully impressed with the importance of an Indian war, and of extending the protection of Government to our defenceless frontiers, as any man whatever, and had no doubt of the necessity of the measures taken to chastise the banditti on the Ohio; but as a Representative from the State of Georgia, he should think himself inexcusable were he not to express his astonishment that no notice is taken in the President's speech of the treaty with the Creek Nation; a treaty which has spread alarm among the people of that State--a treaty by which more than three millions of acres of land, the property of the State of Georgia, guarantied to that State by the Constitution of the United States, are ceded away without any compensation. Mr. J. then adverted to several articles of the treaty, which he said controverted the plainest principles of the constitution, particularly those parts which secure to every citizen the rights of property. He contrasted the present situation of the inhabitants of Georgia, with what it was under the British Government, and said this treaty placed them in a less eligible situation in respect to the Indians. It had been said, exclaimed he, that there are secret articles in the treaty. Good God! at this early period are there to be secret articles existing between the United States and any other nation under heaven! Treaties by the constitution are to be considered the supreme law of the land; but will Congress permit the laws of the United States, like those of _Caligula_, to be placed where they cannot be read, and then punish the people for not obeying them? The people will never submit to be bound by secret articles. [Here the Chairman interrupted Mr. JACKSON, by inquiring whether his observations were intended as introductory to any motion on the paragraph just read.] Mr. J. replied, that it was his intention, at a future day, to introduce a motion, that the President be requested to lay before this House the treaty with the Creek Indians--not excepting the secret articles. He then expatiated on the sufferings of the people of Georgia, and asked, what must be their feelings when they reflect on the preparations made to chastise the Wabash banditti, while the exertions of Congress have not been called forth to their relief. The President sent three Commissioners to Georgia (not one of whom was a citizen of that State). They investigated the truth of her representations, and made a report favorable to her claims, that the lands in dispute were fairly purchased, and as fully obtained as the Confederation, or the nature of the case would admit; but what has been the result? The treaty, so far from recognizing the rights of Georgia, has sacrificed them--the report of the Commissioners does not appear to have been attended to. On the other hand, a savage of the Creeks has been invited and brought to the seat of Government, and there loaded with favors, and caressed in the most extraordinary manner. He said, he would not at present engross any more of the time of the House, only to give notice that, at a future opportunity, he should move that the President of the United States be requested to lay before the House for their consideration, the treaty with the Creek Indians--not excepting the secret articles. The paragraph respecting encouraging our own navigation being read, Mr. SMITH (of South Carolina) observed, that he did not rise to propose any alterations in the style of the Address; the language was such as might be expected from the acknowledged abilities of the gentleman who drafted it. The paragraph just read, he conceived, pledged the House to take measures in respect to our own navigation, which may, in the issue, prove injurious to the agricultural interests of the United States. At this early period of the session, it appeared extremely improper for the House to commit itself, especially as few, if any of the States, are fully represented on the floor. He was afraid that the mode of expression adopted in the Address would conduce to the exclusion of foreign bottoms altogether. If the opinion of the committee should be adopted by the House, he conceived it would be anticipating a decision to the precluding future discussions of the subject. He foresaw that this paragraph would be called up at some future period, and brought as an argument against any different propositions that might be offered--and thus the question be determined without any debate. He thought the Address went into too minute a consideration of the several parts of the Speech, and could have wished that more general terms had been used. As a substitute for the paragraph under consideration, he moved the following amendment in substance: "We shall consider with attention the best means of guarding against the embarrassments you mention, and will take such measures as may remove every obstruction to the prosperity of the commerce and agriculture of the United States." Mr. WILLIAMSON observed, that he saw no material difference between the paragraph in the report and the amendment proposed. The mode of expression adopted by the committee is in so general terms, that he hoped it would have met the full approbation of every member of the committee. The President proposes that the commerce of the United States should be relieved from all injurious restrictions; nothing can be more just and reasonable: and this is perfectly compatible with supporting the agricultural interests of the country; the promotion of the former involves that of the latter. He touched on the impositions of Great Britain on our commerce, and observed, that reason and justice point out the propriety of seeking redress. He, however, saw no opposition in the two propositions; but as the obvious design in bringing forward the substitute is to preclude such an inquiry as the exigency of the case seems to require, he hoped it would not be adopted. Mr. JACKSON observed that he had seconded the motion of the gentleman from South Carolina, because he thought there was an obvious difference in the two modes of expression. He then entered into a discussion of the subject generally; and enlarged on the injurious consequences which would result to the Southern States particularly by enhancing the duties on foreign bottoms. He said, that the tonnage was at present so high as to prevent foreigners from becoming our carriers; several instances of this had been mentioned to him from good authority; and while the American shipping was incompetent to the object, and he called on gentlemen to show that it was, the exclusion of foreign ships from our ports must be ruinous to South Carolina and Georgia; therefore, he hoped the amendment would take place. Mr. SHERMAN said, that the words in the report appeared to him less exceptionable than those in the proposed amendment, even on the principle supported by the gentleman in favor of the amendment. In the report it was only said, we should consider what means, &c., but the amendment declared we should take effectual measures. The words in the report only binding us to consider--those in the amendment obliging us to act. He thought the answer should be general, and was therefore against the amendment. Mr. SMITH (of South Carolina) observed, that the member last up had confined his observation to the first words in the paragraph objected to. If he will take the trouble of reading a little further, he will see, that as the report stands, we give it as our opinion, that foreign bottoms ought to be excluded, which would be severely felt by the States of South Carolina and Georgia. We cannot wholly depend upon our own vessels for the exportation of our produce; they are not sufficiently numerous, nor will they be for many years; therefore, let us not at this time, in a hasty manner, declare, that all articles exported shall be carried in our own bottoms. To settle this important question, Mr. S. thought that some time should be given to reflect, and a day fixed for discussion; in the mean time, he thought it improper at this stage of the session, that the opinion of the House should be given. Mr. WILLIAMSON remarked, that the report did not say that we should have no dependence on foreign bottoms; but that we should not depend altogether upon them for the exportation of our produce. He had no idea of excluding foreign bottoms. He was for making provision in case that resource should fail. Mr. JACKSON.--To show the importance of foreign shipping to the Southern States, and the inadequacy of our own to transport their produce, notwithstanding the low duty on American shipping, Mr. J. read a statement of the tonnage duties paid by each, in the State of Georgia, for the same period; the foreign tonnage amounted to eight thousand two hundred and twenty-seven dollars, the American to six hundred and twenty-nine dollars only. This being the fact, he inquired, what could be done with the Southern produce, in case of the exclusion of foreign bottoms? It must rot in the planter's hands. With respect to the amendment's being as positive as the clause in the report, as had been asserted, if this is the case he could see no objection to its being adopted. Mr. TUCKER said, he thought it improper that in an Address on this occasion, the committee should go into a particular detail on every subject; much less commit their judgment without a previous discussion. The President may have maturely considered the subject during the recess, but the committee cannot be supposed to be prepared for a decision. The thinness of the House was a further objection, in his opinion, to entering into a discussion of the question. He was not pleased with the paragraph in the report, as it seemed to imply that nothing had been done for the encouragement of our own navigation, the reverse of which was fact. The posture of affairs in Europe suggested no stronger reasons for giving further encouragement to our own navigation than what was presented last session; the expediency of the measure is not therefore apparent from any change of circumstances. Though he was dissatisfied with the report, the amendment proposed fell short of his wishes. It did not recognize what had been done for the encouragement of American shipping. He would, therefore, propose a substitute by leave of his colleague; which he did to the following purport: "The encouragement of our own navigation has at all times appeared to us highly important, and has employed a large share of our deliberations; we shall continue to pay due attention to the subject, and consider by what means our commerce and agriculture may be best promoted." Mr. SMITH withdrew his motion to admit Mr. TUCKER's. Mr. SENEY said, he could not conceive what ground of apprehension there was in the Address, to lead gentlemen to suppose that the opinion of the House would be committed by its adoption. He thought it couched in the most general and unexceptionable terms. The amendment proposed he did not think essentially variant from the paragraph under consideration; but as the original was well expressed, he saw no reason for expunging the clause; it contained an assertion, the truth of which he supposed would not be controverted. As to the objection against going into a detail of particulars, it was fully justified by precedent in the last Address; the gentleman from South Carolina, he will recollect, was on the committee who framed it; that Address more pointedly committed the House than the present. Mr. MADISON thought proper to take some notice of the objections that had been made to the report. There were two modes of proceeding, which might be adopted in drawing up the answer. The first method was generally to declare, that the House would take into their serious consideration the business recommended to their attention by the President. And this, he observed, would be saying nothing, for, as by the constitution it was the President's duty to communicate what matters he judged of importance, so it was undoubtedly that of the House to pay attention to the objects recommended. The second method was, to enter into a detail of the different points mentioned in the President's Address, and in such cases where there was no doubt as to the propriety of measures being taken, assure him, in the answer, that measures would be adopted; and if any thing doubtful occurred, merely promise that the subject would be attended to. This rule the committee had followed in drawing up their report, and as in the business mentioned in the paragraph now before the House, they did not hesitate to believe some measures necessary, they could see no impropriety in assuring him that the best would be adopted. He added, that as it is clear that a war in Europe would, by depriving us of foreign bottoms to export our produce, injure this country; and as wars were doubtful, it was of the utmost importance that the American navy be put on so respectable a footing as not to need foreign aid for the exportation of her produce. He further observed, that the answer returned last session was more full, and went even to give the President assurances that the House would concur in certain points proposed for their consideration in his address. He concluded by remarking, that the amendment proposed was binding on the House quite as much as the paragraph in the report. Mr. SMITH (of South Carolina) said, it was true those who reported the Address the last session, adverted to particulars; but were cautious in their mode of expression, and adopted ambiguous language to avoid giving an opinion. This would appear by recurring to that Address. The charge of inconsistency on his part was therefore not well founded. Mr. S. read some paragraphs of that Address, and observed that the House was not pledged by the expressions then read; but in the present Address there is an opinion given. It says that we ought not to depend on foreign bottoms, because in case of war we may be deprived of that resource. These declarations originated the objections, and gave rise to the amendment. He proposed, therefore, as gentlemen appear to have no objection to either mode of expression, that they would accommodate for the sake of harmony and unanimity. The question on the amendment was lost by a considerable majority. The remainder of the Address was read, and agreed to by the committee. The committee then rose and reported, and the House adopted it unanimously. A committee was then appointed to wait on the President of the United States, to know at what time and place it would be convenient for him to receive the Address. The committee having waited on the President, Mr. MADISON reported, that the President was pleased to return for answer, that, at two o'clock on Monday next, he would receive the Address at his own house. Messrs. WILLIAMSON and SHERMAN were added to the committee on the bill to amend the act for promoting the progress of the useful arts. Mr. MATHEWS was appointed on the committee on the militia bill, _vice_ Mr. JACKSON, who begged leave to decline serving, as his colleague had been heretofore on that business, and must consequently be better acquainted with the subject than he was. MONDAY, December 13. GEORGE LEONARD from Massachusetts; JOHN VINING, from Delaware; JOSIAH PARKER, from Virginia; JOHN BAPTIST ASHE, from North Carolina; and EDANUS BURKE, from South Carolina, appeared and took their seats. _Eulogium on Dr. Franklin._ Mr. SMITH (of South Carolina) introduced the following motion, which was read, and laid on the table: The House being highly sensible of the polite attention of the Commonalty of Paris, in directing a eulogium to the illustrious memory of Dr. Benjamin Franklin, pronounced before them, to be transmitted to the President and Congress of the United States, _Resolved_, That the Speaker communicate the sense of this House in a letter addressed to the President and Commonalty of Paris. _Address to the President._ At two o'clock, the House, preceded by the Sergeant-at-Arms, waited on the President of the United States, at his house where the SPEAKER delivered the following Address in answer to his Speech to both Houses: SIR: The Representatives of the people of the United States have taken into consideration your Address to the two Houses at the opening of the present session of Congress. We share in the satisfaction inspired by the prospects which continue to be so auspicious to our public affairs. The blessings resulting from the smiles of Heaven on our agriculture, the rise of public credit, with the further advantages promised to it, and the fertility of resources which are found so little burdensome to the community, fully authorize our mutual congratulations on the present occasion. Nor can we learn, without an additional gratification, that the energy of the laws for providing adequate revenues have been so honorably seconded by those classes of citizens whose patriotism and probity were more immediately concerned. The success of the loan, opened in Holland under the disadvantages of the present moment, is the more important, as it not only denotes the confidence already placed in the United States, but as the effects of a judicious application of that aid will still further illustrate the solidity of the foundation on which the public credit rests. The preparatory steps taken by the State of Virginia, in concert with the District of Kentucky, towards the erection of the latter into a distinct member of the Union, exhibit a liberality mutually honorable to the parties. We shall bestow on this important subject the favorable consideration which it merits, and with the national policy which ought to govern our decision, shall not fail to mingle the affectionate sentiments which are awakened by those expressed in behalf of our fellow-citizens of Kentucky. Whilst we regret the necessity which has produced offensive hostilities against some of the Indian tribes north-west of the Ohio, we sympathize too much with our Western brethren, not to behold with approbation the watchfulness and vigor which have been exerted by the Executive authority for their protection; and which, we trust, will make the aggressors sensible that it is their interest to merit, by a peaceable behavior, the friendship and humanity which the United States are always ready to extend to them. The encouragement of our own navigation has at all times appeared to us highly important. The point of view under which you have recommended it to us is strongly enforced by the actual state of things in Europe. It will be incumbent on us to consider in what mode our commerce and agriculture can be best relieved from an injurious dependence on the navigation of other nations, which the frequency of their wars renders a too precarious resource for conveying the productions of our own country to market. The present state of our trade in the Mediterranean seems not less to demand, and will accordingly receive, the attention which you have recommended. Having already concurred in establishing a Judiciary system, which opens the doors of justice to all without distinction of persons, it will be our disposition to incorporate every improvement which experience may suggest; and we shall consider, in particular, how far the uniformity which in other cases is found convenient in the administration of the General Government through all the States may be introduced into the forms and rules of executing sentences issuing from the Federal Courts. The proper regulation of the jurisdiction and functions which may be exercised by Consuls of the United States in foreign countries, with the provisions stipulated to those of His Most Christian Majesty established here, are subjects of too much consequence to the public interest and honor not to partake of our deliberations. We shall renew our attention to the establishment of the militia and other subjects unfinished at the last session, and shall proceed in them with all the despatch which the magnitude of all, and the difficulty of some of them, will allow. Nothing has given us more satisfaction than to find that the revenues heretofore established have proved adequate to the purposes to which they were allotted. In extending the provision to the residuary objects, it will be equally our care to secure sufficiency and punctuality in the payments due from the Treasury of the United States. We shall also never lose sight of the policy of diminishing the public debt, as fast as the increase of the public resources will permit; and are particularly sensible of the many considerations which press a resort to the auxiliary resources furnished by the public lands. In pursuing every branch of the weighty business of the present session, it will be our constant study to direct our deliberations to the public welfare. Whatever our success may be, we can at least answer for the fervent love of our country, which ought to animate our endeavors. In your co-operation, we are sure of a resource which fortifies our hopes that the fruits of the established Government will justify the confidence which has been placed in it, and recommend it more and more to the affection and attachment of our fellow-citizens. To the foregoing Address the PRESIDENT was pleased to reply: GENTLEMEN: The sentiments expressed in your Address are entitled to my particular acknowledgment. Having no object but the good of our country, this testimony of approbation and confidence, from its immediate representatives, must be among my best rewards, as the support of your enlightened patriotism has been among my greatest encouragements. Being persuaded that you will continue to be actuated by the same auspicious principle, I look forward to the happiest consequences from your deliberations during the present session. GEO. WASHINGTON. TUESDAY, December 14. JEREMIAH VAN RENSSELAER, from New York, and THOMAS HARTLEY, from Pennsylvania, appeared and took their seats. FRIDAY, December 17. JOHN HATHORN, from New York, and JOHN SEVIER, from North Carolina, appeared and took their seats. BENJAMIN BOURNE, a member returned from Rhode Island, produced his credentials, and took his seat. MONDAY, December 27. _Public Lands._ The House then went into Committee of the Whole on the state of the Union, Mr. LIVERMORE in the chair. The report of the Secretary of the Treasury on the establishment of land offices for the disposal of the vacant lands belonging to the United States was taken up; when Mr. BOUDINOT offered the following resolution: _Resolved_, That it is the sense of the committee that a Land Office be established at the seat of the General Government, under the direction of ---- Commissioners. Mr. SCOTT wished the House to take a general view of the business before they went into the particulars of the Secretary's report. Upon the whole, he was pleased with the plan drawn up by that officer; one part, however, he objected to--that part of the report which provided for the distribution of the land. He did not approve of setting apart tracts for particular descriptions of purchasers. As an amendment, he offered seven propositions, which he wished, for the present, to lie on the table, and which he proposed to offer as substitutes to different parts of the Secretary's report, as they came before the House. His principal object was to let the tracts which Congress proposed to sell be indiscriminately located. Mr. BOUDINOT thought the committee could not then enter into the minutiæ of the business. It was enough to fix the general principles, viz: Whether there shall be a General Land Officer and two subordinates? Whether they shall be under the direction of Commissioners? And whether certain tracts of land should be reserved by Congress for certain purposes? And then to appoint a committee to bring in a bill on those principles, and to take into consideration the minutiæ of the business. Mr. SCOTT moved as a substitute his second proposition, that such districts as shall be set apart for sale, shall include the actual settlements, and be left to be indiscriminately located. He said it was improper to set aside different tracts for different modes of location--some in large tracts, others in small lots. He conceived it would be the interest of Government to let every one purchase where he pleased, and as much or as little as he chose. From experience, he knew that those parts were always settled with the most celerity that were not bound down to any of those restrictions. For his part, he could see no good argument in favor of them. He wished some of the gentlemen who approved of this mode would give him some reasons for preferring it. There could be no fear of individual settlers scattering and losing themselves in the backwoods; there was a sufficient check to prevent it--the Indians would keep them compact much more effectually than any regulations Congress could make. If, after granting certain scattered tracts to individual settlers, a considerable tract, including these, was wanted, he could see no inconvenience in granting it, reserving to the former settlers their rights. Mr. WILLIAMSON rose to give the gentleman last up one reason for opposing indiscriminate location. Hitherto, he owned, much mischief had not arisen from this mode of settlement; but now there were persons rich in securities and cash, ready to take up considerable quantities of land, which, if they were permitted to select here and there, would select every choice tract they could; and those who might not have the same means of purchasing immediately at command, could only obtain the indifferent parcels. Many, he knew, had it in contemplation to do this, if the opportunity offered. He instanced North Carolina as an example of the injurious tendency of this liberty; where many tracts are unsaleable owing to this circumstance. If these tracts were to be purchased by actual settlers, the case would be different; they would only be taken up by persons under the name of actual settlers. Such a practice would be an impediment to such companies of Europeans as might wish to settle among us. Mr. SCOTT said he expected the gentleman would have offered more solid objections to his plan, and more forcible arguments in favor of the other. Though the first settlers had the choice of the land, yet he conceived the remaining part would acquire a considerable additional value from the surrounding settlements. As for the European companies who might be tempted to settle among us, he did not contemplate it as an object so desirable. A body of French people settling in that way would preserve their language and manners two thousand years perhaps. This would not be for the true interest of the country; all its inhabitants should, by mutual intercourse, become assimilated, and no name be known but that of Americans. Mr. BOUDINOT was against indiscriminate location. He had seen the bad effects of it in the State from which he came. Persons had bought up the low lands, and sold them again to such as absolutely needed a water lot to their farms, at enormous prices. He mentioned another objection to the plan--the tendency it had to create lawsuits. He said more money had been spent at law, in disputes arising from that mode of settlement, in New Jersey, than would have been necessary to purchase all the land of the State. The late Congress, he was informed, had adopted a method to obviate the inconveniences of the former mode--the lands were laid out into a mile square; these were divided into four equal squares, and in that form sold. Mr. SCOTT said there were tracts of land which it is impossible to sell, even by offering good parcels with them. Between Philadelphia and his home there were spots which were only intended by nature for the birds and beasts--that could be of no value for cultivation. He could not see much probability that the best land would be picked out. The difficulty of exploring a wild and uncultivated desert opposed a considerable barrier to such attempts. Mr. SCOTT's amendment was lost. TUESDAY, December 28. _Land Offices._ The House then went again into a Committee of the Whole on the state of the Union, Mr. BOUDINOT in the chair. The report of the Secretary of the Treasury on the subject of a Land Office being under consideration. Mr. SCOTT said, he was ready to give some information relative to the extent of the seven ranges. He produced a map of them, from which it appeared that they included thirty-five lots, each six miles square. The tract is in the shape of a triangle, of which one leg measured about sixty, and the other forty-two--in all, about twelve hundred square miles. His amendment was agreed to. The next article was agreed to, with a trifling amendment, without debate. Then the following was read: "That the price shall be thirty cents per acre, to be paid either in gold or silver, or public securities, computing those which shall bear an immediate interest of six per cent. as at par with gold and silver, and those which shall bear a future or less interest, if any there be, at a proportional value." Mr. SCOTT moved that thirty cents should be struck out. Mr. SHERMAN was in favor of inserting fifty cents per acre. He said there was every reasonable probability the lands would be worth that sum in a few years. Mr. LAWRENCE said, that as the quality of the land would vary, it appeared proper to fix on two prices at which they should be sold, viz: That the price shall not be more than ----, nor less than ----. He submitted the idea to the consideration of the committee. Mr. SEDGWICK preferred the insertion of a sum below which the lands should not be sold. Mr. WILLIAMSON suggested the propriety of making a difference in the price to those who purchase large quantities, from the price to those who purchase small quantities. The motion for striking out was lost. Mr. SEDGWICK then moved to amend the clause, by inserting "that the price per acre shall not be less than thirty cents." Mr. STONE objected to the motion. He said the operation of it would be to leave it discretionary with the Surveyors to fix the price of the various tracts. This would be to constitute a tribunal in a measure independent of the Government. He thought the policy of the Government should be to fix on a price, which shall be so reasonable, that persons may feel every inducement to pay it before they take up the lands; for it has been found by experience, that when once a tract of distant country is taken possession of, you never can get any thing more than the settlers are willing to pay. He insisted that it was impracticable to fix the relative value of unlocated lands--it had been repeatedly tried without effect. He asked if any of the States had ever established various rates for their lands? He knew of none. Mr. SEDGWICK answered the inquiry respecting the relative value of lands being ascertained in the several States. He said, that so far as his information extended, which respected only the States of New York, New Hampshire, and Massachusetts, this had invariably been the case. Every man knows there is a most essential difference in the value of lands. Those on navigable rivers may be ten times as valuable as those on the top of a mountain. This every individual is so sensible of, that a difference in the price is constantly made; and why the Government should not make a difference, it is impossible to say. Any man, by casting his eye upon the map, can at once determine that some part of the land is unspeakably more valuable than other parts. He was certain that vesting a discretionary power, in the disposal of the lands, would be productive of the greatest advantage to the United States, and on this principle he could not conceive why the Surveyors should not determine the relative quality, that the United States may stand some chance of getting the value of this property. Mr. LIVERMORE was in favor of Mr. SEDGWICK's motion, and enlarged on the unreasonableness of fixing a particular price. Mr. JACKSON was opposed to investing a discretionary power to determine the price with any persons whatsoever. It had been productive of mischievous consequences in the State of Georgia. He was for fixing a price, and the highest price--the best the land would bear; when that is sold, if the revenue will not bear the price established, it can then be reduced. Mr. SCOTT objected to the motion. He stated several difficulties; the principal was, that foreigners would be deterred from adventuring, owing to the uncertainty in the price; for when they arrive in the country to settle, they must purchase, and they will then lie at the mercy of speculators. Mr. LAWRENCE.--The people have great dependence on the Western territory as a fund to extinguish their debt; it therefore becomes the duty of the Government to obtain the best price they can for it. The question is, whether we shall fix a price, or adopt the plan proposed by the gentleman from Massachusetts. He was in favor of the latter, and said he doubted not it would be easy to make a discrimination in the relative qualities of the lands. This difference in price may render it worth while for the Commissioners to have the land of a particular district explored. He replied to the objection from the want of integrity in the surveyors. Admitting the full force of the objection, it was probable that the United States would gain by it; at any rate, it would not lose; and it was probable that, to avoid suspicion, if the surveyors should be interested in the tract surveyed, they would give more than thirty cents. With respect to foreigners, after they arrive in this country, they then will be on the same footing with our own citizens. He adverted to the mode which had been adopted by New York--they had sold lands in every way, at a certain price, at auction, and are now selling them at the discretion of Commissioners, at a rate not below a certain sum. Mr. STONE objected to the mode of leaving the price unfixed, as it would involve a complex system, subjecting the purchasers to great inconvenience, perplexity, and uncertainty. He reprobated the system adopted by New York, and asked the gentleman (Mr. LAWRENCE) whether New York had not been subjected to great loss and vexation in consequence of the plan they had pursued? He wished the system of New York should be fully understood, in order that the United States may avoid it. He concluded by saying, that he was in favor of fixing a price, and supposed that the Western Territory, sold at thirty cents per acre, would sink the whole of the national debt. Mr. LAWRENCE replied to Mr. STONE. He said, that when the State of New York sold their lands at a fixed price, there had been complaints on account of the best tracts being taken up. When they had sold them at auction, the value of the lands had been generally realized in proportion to the quality. With respect to the last mode adopted, the result was not yet known. Mr. WHITE said, if gentlemen had proposed the amendment to the clause which respects large purchases, he should not have objected to it. He, however, objected to it in the present case, and, in order to show that a fixed price was most eligible for small quantities, he instanced the practice of Lord Fairfax, who had been a great proprietor in Virginia; and also the practice of the first proprietors of Pennsylvania. These sold their lands, good and bad, at one price; their experience for such a length of time, near a century, he thought sufficient to show that mode to be the most eligible. He would not object to fixing that condition to special contract. Mr. SEDGWICK obviated the objection in the first instance, by saying that the officers will be able to determine, with very considerable precision, what will be for the interest of the United States. He said experience had proved that there were no insuperable difficulties in the case. Mr. MOORE observed, that the actual value of the best lands in that territory was about thirty cents per acre. When all of that description is sold, the next will bring the same price; from whence he inferred, that there could be no difficulty or loss attending fixing the price. He stated some difficulties which would result from adopting the mode proposed. WEDNESDAY, January 5. _Duties on Spirits._ The House, agreeably to the order of the day, resolved itself into a Committee of the Whole, Mr. BOUDINOT in the chair, and took into consideration the bill repealing, after a certain time, the act laying duties on distilled spirits, &c., and imposing others in their stead. Mr. JACKSON moved to strike out the essential part of the first clause. He stated his objections at large against the principles of the bill, and reprobated the funding system, and an excise in particular, as an auxiliary to it. The tenor of his observations was to show that this mode of taxation was odious, unequal, unpopular, and oppressive, more particularly in the Southern States; in which he observed its unequal operation would be most sensibly felt, as the citizens of those States have no alternative to adopt by which they can diminish the weight of the tax; no breweries or orchards to furnish a substitute for spirituous liquors; hence they become a necessary article. He contended that they were not only necessary, but salutary in the Southern regions. This, he said, had been acknowledged by an Eastern author, _Mr. Morse_, an authority which he presumed would not be disputed by the Northern gentlemen, especially when it was considered he was a clergyman. Mr. M. declares that grog is a necessary article of drink in the Southern States. Mr. J. took notice of the petition of the College of Physicians, which had lately been read in the House on the subject of distilled spirits. He disapproved highly of their interfering in the business. He thought they might with equal propriety interpose their offices to prevent the use of many other articles which were deemed pernicious or of a poisonous quality. He instanced mushrooms; they might petition Congress to pass a law interdicting the use of catsup, because some ignorant persons had been poisoned by eating mushrooms. Mr. J. then gave a short sketch of the history of excises in England. He said they always had been considered by the people of that country as an odious tax, from the time of _Oliver Cromwell_ to the present day; even _Blackstone_, a high prerogative lawyer, has reprobated them. He said, he hoped this country would take warning by the experience of the people of Great Britain, and not sacrifice their liberties by wantonly contracting debts which would render it necessary to burden the people by such taxes as would swallow up their privileges. We are, said he, too much in the habit of imitating that country; and I plainly perceive that the time will come when a shirt shall not be washed without an excise. He then expatiated on the unequal operation of excises, and instanced the experience of this State. A few counties, said he, approximate to the capital, have borne the weight of the whole, while the distant parts of the State did not feel the burden; and, by an indication of several particulars, he showed its unequal operation in the Southern States. It will deprive the mass of the people of almost the only luxury they enjoy, that of distilled spirits. He did not see the necessity of passing this law the present session. The amount of the produce of the duties laid last session is not yet known, nor is it yet ascertained whether the citizens will subscribe to the assumption. Let us not lay a tax for a purpose which may never exist; for my part, I hope they never will subscribe. He then adverted to the excess of duties already laid, and the probability of a great increase of that excess; and urged the propriety of waiting at least another quarter to see what that excess may amount to. These observations he enforced by recurring to the recent transactions of the States of Maryland, Virginia, and North Carolina; and he expected to hear very shortly that the Assembly of Georgia had expressed similar opinions with the latter States on the business of the assumption. He concluded by expressing a general disapprobation of the various parts of the bill. Mr. PARKER said, he had seconded the motion of the gentleman from Georgia, not because he was more averse to this particular clause than to the subsequent parts of the bill. He exceedingly disliked the several provisions contained in it. He then adverted to the general process of the revenue business the last session; and observing on the conduct of the mercantile interest, to which so much credit had been given, said, he thought they were not entitled to the liberal encomiums which had been bestowed on them for their promptitude in paying the duties, as the certainty and increase of the revenue had served to enhance the value of the public securities, of which it is well known they hold a very considerable portion. He then touched on the subsequent parts of the bill, which he reprobated as hostile to the liberties of the people, as contrary to the general sentiment; not only as partial and unequal in the mode of assessment, but particularly on account of the mode of collecting the tax. It will, said he, convulse the Government; it will let loose a swarm of harpies, who, under the denomination of revenue officers, will range through the country, prying into every man's house and affairs, and like a Macedonian phalanx bear down all before them. And though the Government has proceeded with a degree of prosperity and success beyond the most sanguine expectations, yet he very much doubted the policy of trying its strength by an experiment of this nature. Recurring to the actual and probable produce of the duties already laid, he attempted to show that the additional sum of upwards of eight hundred thousand dollars, contemplated to be raised by this bill, is not necessary. He controverted the policy of the measure, and contended that it would, in all probability, rather diminish than increase the revenue of the United States. For the mercantile part of the community, who have been applauded for acting so honorably in making their entries, and paying the impost, will find it for their interest to alter their conduct; they will combine to defeat the excise, which will in its operations bear so unequally on them. He objected very particularly to the bill on account of its tendency to promote smuggling. Mr. P. said, no man was more heartily disposed than he was to give his approbation to every just measure for supporting the public credit, and doing every thing in his power to support the constitutional operations of the Government; but this mode of raising a revenue he considered as particularly odious to the people; and at the present moment he was not satisfied that such an increase to the public burdens is necessary. Mr. STONE said, he had no objection to the design of the bill so far as additional revenue was necessary; but the mode of raising it by excise he exceedingly disliked. He had no doubt that other means might be devised; but at present he thought the committee was not sufficiently informed respecting the actual and probable amount of the revenue from the duties already imposed, to determine the necessity of an addition to the revenue. He therefore moved that the committee should rise without any further discussion of the bill at this time, and that a select committee should be appointed to make the necessary previous inquiries upon the subject, and report to the House. Mr. FITZSIMONS observed that there was already on the table a statement from the proper officers of the product of the revenue, from September, 1789, to September, 1790. This statement was read. The motion for the committee's rising was put and lost. The question on Mr. JACKSON's motion for striking out the clause was put, and negatived by a great majority. THURSDAY, January 6. _Duties on Spirits._ The House again resolved itself into a Committee of the Whole on the bill repealing after the last day of ---- next, the act laying duties on distilled spirits, &c., and imposing others in their stead. Mr. BOUDINOT in the chair. The twelfth section, which specifies the rates of duties, being read, Mr. PARKER moved that it should be struck out, in order to admit a substitute which should provide for a different mode of raising the requisite additional revenue; the proposition he had in view, he said, was a duty on molasses. This, he observed, would answer every purpose, without being liable to the objections which had been offered against the plan of the bill. Mr. MADISON observed, that he had felt the force of the objections which had been urged against the bill. He was in general principled against excises, but of all excises, that on ardent spirits he considered the least exceptionable. The question now to be determined, he conceived, was this--is an addition to the present amount of the revenue necessary? It had appeared that an addition is necessary; for his own part, he should prefer direct taxation to any excises whatever; but he conceived this would be contrary to the sentiments of a majority of the people of the United States; and he was fully convinced that it was contrary to the opinion of a great majority of the House. If, said he, any mode could be adopted, without having recourse to excises, he would be the last that would give them support; but he conceived there was none, and the plan proposed was divested of the most exceptionable provisions usually connected with an excise system. Mr. JACKSON observed, that his defeat yesterday should not deter him, while he had a monitor within, from rising in his place to do his duty, in opposition to a system unfriendly to the liberties of the people. He said, he was not the first on this floor who had been outvoted by silent majorities; gentlemen of superior abilities had met with similar treatment. He, however, felt so much respect for himself as to suppose that this silence proceeded from an inability to answer the arguments which he had the honor to offer against what he considered a most ruinous and mischievous system of taxation. He then stated certain particulars respecting the produce of the revenue, to show that so great a sum as is proposed to be raised by excise is unnecessary. He doubted not other resources of revenue might be explored which would be more palatable; he instanced a tax on salaries, pensions, and lawyers, and in these particulars, he wished that the example of Great Britain might be followed. He then dilated on the practice of smuggling, which he contended would be promoted by this bill; also the difficulties and opposition which were justly to be expected, by which the dignity of the Government would be insulted. Can this Government, said he, protect its officers from the resentment of any one State in the Union? He reprobated the idea of placing the Government in such a situation. Mr. LAWRENCE observed, that he doubted not every gentleman's mind was open to conviction, and he hoped and expected that every question would be treated dispassionately. He did not rise yesterday to answer the gentleman, because he was not impressed with the force of his arguments in the manner the gentleman supposed the House was. He then adverted to the act of the last session, by which the debts of the particular States were assumed. Having taken this debt upon ourselves, the consequence is obvious, nor can we ever get over the dishonor of not making the necessary provision for paying it. He then adverted to the statements which had been submitted to the House by the officer to whom the Union had intrusted the direction of its finances. From these it fully appeared that a much greater deficiency in the revenue existed than some gentlemen appeared willing to allow. If this deficiency exists, and if the United States are bound to make provision for the debts they have assumed to pay, the duties contemplated by the bill appear the most obvious for the Government to recur to. He adverted to the idea of direct taxation, and inquired, on what principle will gentlemen consent to this mode of raising the necessary supplies? Will they make the representation of the several States the rule by which it shall be apportioned? He doubted whether direct taxes on this principle would be agreeable, even to the gentlemen who have mentioned them. He then remarked on the objections to an excise, on account of the mode of collection. He said a rigorous collection would bear hard only on the dishonest, while it would protect the fair trader from bearing an undue proportion of the public burdens. He observed on the uneasiness which is said to prevail in some of the States; and to obviate the force of these reflections he instanced the harmony and peace that prevailed in those States which bear a much greater proportion of the public burdens than those which complain, as was abundantly evident from the documents in possession of the House. Mr. STEELE stated his objections at large to an excise; he adverted to the particular situation of affairs in some of the Southern States, especially North Carolina. The Assembly of that State had rejected the proposal of taking an oath to support the Constitution of the United States, with scorn; they had also refused to admit Continental prisoners into their jails; and another circumstance more hostile to the General Government than either of the foregoing had taken place, which he forbore to mention. He said such was the present state of the public mind, in various parts of the Union, that he should dread taking any measures which might serve to increase the fermentation which the people are in. An excise he considered of this nature; it would in its operations produce the worst consequences. A more exceptionable mode of taxation he conceived could not be devised. A direct or poll tax, he supposed, would not be so odious; and though, for his own part, he should prefer an excise to either of the former taxes, yet such was the aversion of the people to it, that he should prefer almost any other alternative. He thought other objects might be found from which the necessary revenue could be raised. He instanced duties on inland navigation, law proceedings, legal conveyances, &c. He then adverted to the operation of an excise, especially in the State of North Carolina, and said that the consumption of ardent spirits in that State was so great that the duty would amount perhaps to ten times as much as in the State of Connecticut. On the whole, he hoped, if the section is not struck out, that the excise will be reduced. Mr. SHERMAN observed, that the subject now before the committee was thoroughly discussed the last session; and as nothing new or of weight or importance had been offered the present session against it, he thought it would be a useless waste of the time of the House to go into a particular reply to the objections offered against the bill. This he thought a sufficient answer to the charge of carrying questions by silent majorities. He then entered into a short consideration of the subject generally, and defended the system from the charges which had been adduced respecting its unequal operation. Mr. LIVERMORE was in favor of the bill. He said he considered it as an equal and just mode of taxation; and, as such, will be agreeable to the people--they will consider it as drinking down the national debt. So far, said he, as my observations have extended, I have not found a single individual who has objected to it. He then obviated the objections to the bill, which he conceived arose principally from the word excise. He thought the term very improperly applied on the present occasion, for the duty cannot be said to be an excise. He then gave a description of what had been considered in times past as an excise, which, to be sure, is a very unequal tax, inasmuch as it fell on the poor only, who were obliged to purchase in small quantities; while the rich, by storing their cellars, escaped the duty. But this bill provides that the duty shall fall equally on the rich and poor. It is to be paid, or secured, by the importer of foreign spirits, and on the still-head on domestic spirits. This will equalize the burden, and leave no room for complaint. He then adverted to direct taxation; and by a variety of particulars, showed that it was utterly impossible to lay a direct tax that would not prove unjust, unequal, and grievously oppressive. Mr. BLOODWORTH spoke against the bill. He dilated largely on the present uneasiness which prevailed in the State of North Carolina. His experience, he said, was directly contrary to that of the gentleman from New Hampshire; the people to the southward universally condemned an excise. Mr. SEDGWICK said, he was unhappy to hear that discontents prevailed in any part of the United States. He could assure gentlemen that he did not contemplate the execution of the laws by military force. He was sure that in no part of the Legislature were entertained designs inimical to the public liberty. In framing the present bill, great attention had been paid to prevent its being attended with those qualities which, in other countries, rendered taxation by excise justly obnoxious to popular resentment. He relied on the good sense and well-informed understandings of the people in every part of America, for the execution of such systems for the support of public credit, and for the diminution of the national debt, as should be devised by the wisdom of their Representatives. For the same purposes, he said, he confided in the patriotism of the gentlemen who came from those districts of country where uneasiness was said to exist. He believed there was indeed considerable deficiency to be provided for, for the support of Government and of the public credit. This belief was founded in his confidence in the information received from the Secretary of the Treasury. But if there was no deficiency, his disposition to support the bill would be the same; for he had never believed that a public debt was a public benefit. Is it not, then, the duty of those to whom the people have delegated the important trust of guarding their prosperity, in a season of profound peace, to liberate them from the burden and pressure of debt? Therefore the only question to be determined is, whether the proposed duties are a proper source from whence we might derive the necessary aids to provide for the payment of the interest, or the diminution of the principal of our debt? He believed that of all the subjects of revenue which were within the power of Congress, none was so proper as the duty on ardent spirits, contemplated by the bill. In this sentiment, he believed he concurred with that of the great body of the people. The several species of taxation may be divided into the four following: by impost; a tax on internal negotiations; direct taxes; and that now under consideration, excise. The impost duties had been extended as far as was, in the opinion of any gentleman, dictated by sound policy. The tax on internal negotiations, which could not be carried on to any considerable extent without the intervention of stamps, was subject to the objection brought against the present bill, and that in a degree incomparably beyond it, of being opposed by public opinion. Direct taxes are still more objectionable on that account, at least in every part of the country to which his knowledge extended. They are of all taxes the most unequal, and in this country would be found the most oppressive. They are unequal, because with whatever exactness they might be apportioned upon capital or income, the only two principles on which an apportionment can be made, they may, and will be, very unequal as to the burden imposed; because a man's ability to pay taxes is not in proportion either to his capital, his property, or his income, but to that part of his income which is over and above his necessary expenses, according to the usual manner of living for persons of his degree in the community. They will be oppressive in this country, because in many of the States the plentiful circulation of money, and the facility of obtaining it, does not extend to the interior parts, nor could it be obtained by many of our citizens without a great sacrifice of property. It may be added, that from the extent of our settlements compared with the number of our citizens, the expense of collection would be immense. In regard to excises, Mr. S. said, that in all insensible modes of taxation, it should be observed, that a much greater sum would be obtained from an individual than by any mode of direct imposition: this, without entering into a discussion of the reasons upon which it was founded, is demonstrated by fact. He instanced the porters of London, from whom, in the single article of beer, was drawn ten times as much as could be procured by the most rigorous mode of direct taxation. With regard to the proposed duties, though the well-meant consideration of morality which had been urged by some gentlemen weighed but little with him, because he doubted whether it was well founded, yet, if the consumption should be lessened, he did not believe it would be attended with any sensible inconvenience. The consumption, at present, amounts to an enormous quantity; from these considerations, as the measure is dictated by sound policy, he hoped and believed it would be supported by a good degree of unanimity. Mr. SMITH (of South Carolina) adverted to the funding system, to show that the faith of the United States was pledged to raise a sufficient revenue to discharge the debt, which, by that system, they have engaged to pay. The Secretary's statements point out a deficiency; those statements, he had no doubt, were as accurate as the nature of things would admit. Gentlemen who find fault with the proposed plan do not offer a substitute. He then entered into a defence of the bill, and showed in what respects it differed from the English plan of an excise. He said, the present bill was not so exceptionable on account of its violating private property as the collection law. He instanced, in a particular clause of that law, the power of entering houses by warrant from a justice of the peace--trial by jury is secured by this bill, and other provisions friendly to personal rights are added. Direct taxes are as much objected to by North Carolina as the excise; and though direct taxes are mentioned, no plan is offered. He then enlarged on the importance of punctuality in paying the interest of the public debt, and of having a surplus revenue in the Treasury. He doubted not the gentlemen in favor of the bill were as patriotic as those who are averse to it. Difference of opinion is to be expected; but he had a better opinion of the good sense of the community than to suppose they would be led away by a sound; they will see and judge for themselves; and when they see that the law is free from all those obnoxious qualities which have been suggested, they will submit to it without complaint, especially when they realize that the tax is equal, and the only effective resource within the present command of the Government. The General Government is authorized to lay excises--North Carolina knew this when she adopted the constitution. The opposition, he suspected, was against the object to which the money is to be appropriated. Mr. GILES said, the sentiments of the people of the Southern States have been so differently represented from what he conceived to be the state of facts, that, in justice to them he conceived himself bound to take some notice of the observations which had fallen from gentlemen. He then stated certain principles on which taxation should be formed. Taxes should be necessary, and raised on a plan consistent with the principles of liberty. He adverted to the necessity, which, he observed, was abundantly apparent from the report of the Secretary of the Treasury; but he did not confine his opinion to what had fallen from him. He instanced other reasons which would occasion a necessity for replenishing the public Treasury. The expediency of the present mode he argued from the impost's being carried to the utmost; from the approbation of this mode by a majority of the people; and though uneasiness might prevail in some of the Southern States, he considered them as originating altogether from want of due information. Possessed of that information, he could pledge himself to the committee that they would cheerfully acquiesce in whatever the Legislature should decide to be for the general interest. With respect to the bill's being agreeable to the principles of liberty and republicanism, this would more properly come into view when that part of the bill which designates the mode of collection comes under consideration. At present he would only say, that he had observed with pleasure, that there appeared to be a universal disposition in the members of the House to manifest the most scrupulous attention, in all their deliberations, to the liberties of the people. On the whole, he had no doubt that, on mature reflection, the people would acquiesce in the present plan, when the honor, security, and peace of the United States appeared to be essentially connected with a further provision for the public exigencies. Mr. STONE particularly alluded to the statement offered by Mr. JACKSON, by which it appears that only the sum of 146,000 dollars was wanting--whereas the Secretary's report calls for the enormous sum of 800,000 dollars. He called on gentlemen to show the errors of the statement offered by the gentleman. It had not been done. He then adverted to the number of people that would probably be wanted in order to make the duty productive. He believed they would be so numerous as to be sufficient to constitute an army. Mr. FITZSIMONS read an estimate of the actual and probable produce of the present impost and tonnage for the current year, by which it appears there will be a deficiency of upwards of 300,000 dollars; but taking into consideration certain contingencies, which, should they take place, will diminish the amount of the present duties, it appeared that the deficiency would be much larger than the sum mentioned; but even in case of a surplus being produced by this bill, there are objects to which it can be applied highly beneficial to the United States. He instanced sinking the deferred stock, and the three per cents. The reduction of the public debt is an object which ought never to be lost sight of. MONDAY, January 10. _Vacancy in the Presidency._ In Committee of the Whole on the bill, declaring what officer, in case of vacancy [by death, removal, or inability] in the offices of President and Vice President, shall act as President, Mr. BOUDINOT in the chair. The first clause of the bill was read, which contains a blank to be filled up, designating the person who shall act as President. Mr. SMITH (of South Carolina) observed that, by the constitution, the vacancy is to be filled with an officer of the United States. This narrows the discussion very much. But he conceived there was a previous question necessary to be determined; and that was, whether the person appointed to supply the vacancy should hold the office during the time for which the President and Vice President were elected, or whether he was to hold the office only till a new election could take place. He thought that, by the constitution, a new election was not to take place till the term for which the President and Vice President had been elected was expired. He then descanted on the respective offices of the Chief Justice, Secretary of State, and Secretary of the Treasury; and, by several particulars, showed that the appointment would most naturally devolve on the Secretary of State. He accordingly moved that the blank be filled with the words "The Secretary of State." Mr. LIVERMORE observed, that in considering this question, he thought no reference should be had to the officers which had been mentioned, for, as it was supposed that the case contemplated would not happen once in a hundred years, he conceived that the present characters, who now hold the above offices, would be entirely out of the question. He had in view a different person, and that was the President of the Senate, _pro tempore_, and moved that the blank be filled with this person. Mr. WHITE observed, that the constitution says the vacancy shall be filled by an officer of the United States. The President, _pro tempore_, of the Senate, is not an officer of the United States. Besides, this will give one branch of the Legislature the power of electing a President. This, he conceived, was contrary to the constitution, as both branches have a right to an equal voice in the appointment in this case. This will introduce the very evil intended to be guarded against. Mr. WILLIAMSON said, the motion was directly repugnant to the constitution. Why not choose the Speaker of this House? Mr. LIVERMORE said, he was well aware of the objections offered by the gentlemen. He could have wished the constitution had pointed out the person. But he conceived that the Senate was the only body that could do this business. If either of the officers mentioned should be the person designated to supply the vacancy, it would be in the power of the Vice President, by virtue of the power of removing officers, absolutely to appoint a successor, without consulting either branch of the Legislature. Mr. SHERMAN observed that this matter is left with the Legislature. The whole power of the people, in case of vacancy, devolves on the Legislature. The particular officer is not pointed out; it lies with Congress to say who it shall be. The President of the Senate is an officer of the United States. In case of the death of a Governor and Lieutenant Governor, it is common in the several States, for the oldest councillor to preside. He instanced the case of the abdication of James II. Adverting to the constitution, he showed that the appointment of Vice President, in certain cases, devolves on the Senate. The vacancy may be filled for a longer or shorter time, and this appears to be a question previous in its nature to be determined. Mr. SEDGWICK said he should be in favor of the motion of the gentleman from New Hampshire, if it was not for the express provision in the constitution, which says, the office shall be filled by an officer of the United States. Should the vacancy now happen, there would be no officer of the Senate that could be appointed. He mentioned that the office of Chief Justice was considered as next to that of President, and therefore on the whole, he considered him as the most proper person to fill the vacancy. He thought the bill respecting the votes for President and Vice President should be first determined. He moved, therefore, that the committee should rise, and take up the next bill. Mr. CARROLL and Mr. LIVERMORE objected to the motion for the committee's rising. Mr. MADISON was also opposed to the motion. He enlarged on the subject, and said he thought it a duty urged by a variety of considerations, important in themselves, and more so, perhaps, in their consequences, that the decision should now be made. Mr. SMITH started a variety of objections to Mr. LIVERMORE's proposition. He thought it unconstitutional, as it would, in its operation, deprive a State of a vote in the Senate. Mr. BOURNE said he seconded the motion for the committee's rising, because he conceived there was other business of more immediate importance to be considered; and he saw no necessity for coming to a decision on this question at the present time. Mr. LAWRENCE supposed that the blank could be filled up in the House; he was, therefore, in favor of the committee's rising. The motion for the committee's rising was negatived. Mr. BENSON was in favor of filling up the blank with the Chief Justice. He observed that the objection arising from the Vice President's having it in his power to name his successor, in case the Secretary of State is inserted, does not apply to the Chief Justice. He is independent of the Executive. He pointed out several particulars, in which there was an incompatibility in the offices of Secretary of State, and that of President. He observed that the appointment to the Regency, in all countries, is generally of the first law officer. Mr. JACKSON objected to the Chief Justice, and said the Speaker of the House of Representatives was, in his opinion, the next officer in point of dignity to the President and Vice President. Mr. MADISON objected to the Chief Justice, as it would be blending the Judiciary and the Executive. He objected to the President _pro tem._ of the Senate. He will be a Senator of some particular State, liable to be instructed by the State, and will still hold his office--thus he will hold two offices at once. He adverted to the other objections which had been offered against the Secretary of the State, and showed the compatibility of the two offices. Mr. STONE stated sundry difficulties respecting all the officers that had been named; but, on the whole, thought there were fewer against the Secretary of State than any other officer that had been mentioned. Mr. SENEY was opposed to coming to any decision at the present time. He thought more important business was before the House. He was not for making any decision that would give umbrage to any officer of the Government. The Secretary of State and the Secretary of the Treasury were equally entitled to public notice. Mr. CARROLL was in favor of coming to a decision; and if nothing more could be offered against the motion for filling up the blank with the Secretary of State, he presumed the committee were ripe for a decision. He referred to the situation of countries who had not, in season, made provision for a Regent, &c. Mr. SHERMAN said, he was in favor of the committee's rising and reporting the bill, and leaving the blanks to be filled up in the House. Mr. WHITE was in favor of filling up the blank in the committee--he saw no reason for a delay. The officers mentioned are as well known now as they will be three days hence. The President and Vice President being in health, is a reason why the subject should now be considered; it can be done with coolness and freedom from all warmth. Mr. LAWRENCE said, he thought there was no necessity for precipitating the decision. With respect to every person that has been named, difficulties have been started. The subject is important, and time should be given to deliberate on the several officers that have been named. He hoped, therefore, that the committee would rise and report the bill, and leave the blank to be filled up at another time. Mr. BURKE was in favor of the committee's rising. He observed, that the members in general appeared to be very much undetermined. This is the first day the subject has been under consideration. He hoped the members would not be precipitated to vote on the occasion. Mr. CARROLL said, if the committee should rise, he hoped the bill would not be reported, but that they would sit again. Mr. BURKE said, he hoped the committee would sit again. The question on the committee's rising and reporting progress, was carried in the affirmative. THURSDAY, January 13. _Vacancy in the Presidency._ In Committee of the Whole, on the bill declaring the officer who, in case of vacancy in the offices of President and Vice President, shall exercise the office of President of the United States, Mr. BOUDINOT in the chair. The motion for filling up the blank with "the Secretary of State for the time being," was renewed by Mr. CARROLL. Mr. LIVERMORE observed, that the character of the gentleman who fills that office should have no weight in determining the question, because the House was about to provide for a case that might not happen before a number of years were elapsed. The House should fix on the officer who would, from the nature of his office, most naturally succeed. He hoped they would not determine in favor of an officer of their own creating, and of which no mention is made in the constitution. The Chief Justice, he remarked, had been spoken of: one great objection he mentioned against him--the provision which the constitution makes in case the President is impeached, viz: that he should preside. As this was an elective Government, he wished its principles preserved, and not to see the Chief Magistracy filled by an officer not the choice of the people. The President of the Senate _pro tem_, appeared to him a much fitter officer to fill that station: he was originally chosen by the people to the Senate. When amendments to the constitution came to be thought of, perhaps it would be proper to provide for this case by a special clause in it, empowering the Electors who had chosen the President and Vice President, in case of vacancy, to meet again, and make another choice; only, however, for the remainder of the four years; because, at the end of that time, the power of choosing the Electors should return to, and be exercised by the several States. If the motion before the committee was negatived, he gave notice that he would bring in his, viz: to fill up the blank with the person last antecedently chosen President of the Senate. Mr. BALDWIN said, that he should vote for the present motion, because he conceived that the constitution is express, that an officer of the Government, designated either by the law or the constitution, should be appointed to fill this vacancy. He stated some objections against the Chief Justice. He is an officer who ought to be entirely detached from all political agitations whatever--his mind ought to be kept calm and as unembarrassed as possible. He quoted the precedent established in the law instituting the Governor of the Western Territory--there the Secretary is to succeed the Governor. The Secretary of State is an Executive officer, an assistant to the President, and must be supposed, from his situation, to be the most proper person to supply the vacancy. Mr. SHERMAN was of opinion, that putting the Chief Magistracy into the hands of a subordinate officer, was by no means proper. As to the observations made by the gentleman last up, on the arrangements in the Government of the Western Territory, he did not think they could be applied to the present case. That Government is a subordinate one, and a kind of legislative power is vested in the Governor of selecting, from the laws and regulations of the different States, such as he thought requisite for the Government of those he had under his care. He was in favor of giving the supreme Executive, in case of accident, to the President of the Senate. The Government would certainly suffer fewer inconveniences by that arrangement than if the head of a department was put in. The Vice President, by the constitution, succeeds to the President--the President of the Senate to the office of the first; it is therefore very natural that he should also exercise the duties of the second in case of a vacancy. To designate any officer as possible successor to the President, would be giving him too much dignity, and raising him, in a manner, even above the Legislature. Mr. CARROLL observed, that the vacancy might happen in the recess of the Legislature, or in the absence of the President of the Senate; the Secretary of State would always be at the seat of Government. Besides, the constitution declares the vacancy shall be filled by an officer of the Government. The President of the Senate is only an officer _pro tem_. If the framers of the constitution had intended the vacancy should be filled by an officer named in it, they could have designated him; but this they had not done; he therefore supposed they had in view some officer not then in existence. Mr. GERRY regretted that the subject should have been taken up at this moment, when so much important business is before Congress. He adverted to the motion, and said, that the character which now fills the office of Secretary of State undoubtedly possessed the confidence of the Legislature in the fullest manner, and very justly; but when the exigency shall arrive for which we now are about to provide, a character may fill that office who would be a scourge to the Union. Besides, said he, if the office of Vice President was now to be filled, the Secretary of State would be ineligible, coming from the same State with the President. He stated other objections from the constitution. He thought the nomination should not be confined to officers of the United States. He supposed the views of Government may be extended even to officers of the several States. He, however, wished the whole business postponed; but if this idea is overruled, he suggested the propriety of filling the blank with the constitutional clause respecting the highest candidates who are primarily voted for as President and Vice President. Mr. SMITH remarked, that there appeared to be so great a diversity of opinion on the subject before the House, that he doubted the possibility of procuring a majority for either of the motions that had been made. There would be objections, he conceived, to any proposition that could be offered; but the committee should determine on that to which there were fewest. To the Secretary of State he thought there were less than to any other officer proposed. Those against the Chief Justice he thought unanswerable. Indeed, the gentleman who proposed him had not offered any answer to the objections made to that officer. The duties of the President of the Senate, and those of the President of the United States, appeared to him incompatible. The first was the Representative of a particular State, and bound to obey the instructions of it. If he was to be deprived of his seat in the Senate, his State would lose a vote there, and the balance of that branch of the Legislature would be destroyed. He recapitulated the objections that had already been made to the Chief Justice's filling the chair. His power of expounding treaties would be improperly mixed with that of making them; that of condemning for offences, with a power of granting reprieves and pardons. Then the Chief Justice could not act with propriety as Commander-in-Chief of the army and navy. It had been said, he observed, that the Judiciary business might go on for some time without the assistance of the Chief Justice. He thought not; there were three Circuit Courts, and two Judges for each, including the Chief Justice. If he was absent, the business of one of the circuits could not proceed; besides, he should preside in the Supreme Court. He concluded by saying, that the office of Secretary of State and the duties of President were analogous. He was a kind of assistant to the Chief Magistrate, and would, therefore, very properly supply his place; besides, he was always at the seat of Government. Mr. BURKE said, that he had consulted a gentleman skilled in the doctrine of chances, who, after considering the subject, had informed him, that there was an equal chance that such a contingency would not happen more than once in eight hundred and forty years. He hoped, therefore, that the committee would not spend any more time upon the subject, but postpone it altogether. Mr. GILES conceived, that the probability of the event taking place was much greater than Mr. BURKE seemed to think. According to the doctrine of politics, he said, it was not more than fifty to one that it would not happen in two months. However, even if the chance was much less, it was the duty of the House to make provision for the accident before it occurred. If it was left till the case actually took place, it would then be too late to think of remedying the evil; for it was to be provided for by a Legislative act, which could not be made complete without the President's approbation and signature, and could therefore not be obtained when the chair was vacant. Then, if the event should happen before it was provided for, there would be, he conceived, an end to this Government. He used another argument to urge the necessity of a speedy provision. Suppose, said he, the Vice President should die, then the fate of this Government would remain in the hands of the President, who, by resigning, would destroy its organization, without leaving a constitutional mode of filling the vacancy. In addition to the loss of this Government, would not every member of the Legislature, he asked, lose his character, credit, and reputation? Having shown the necessity of making immediate provision for a case of so much importance to the very existence of the Government, Mr. GILES declared he was in favor of filling up the blank with the Secretary of State. He chiefly rested his opinion on the idea, that if the constitution had not intended that the vacancy should be filled by some officer not there mentioned, they would have determined who it should be. Mr. SEDGWICK was sorry that the business had been brought forward, and more so that gentlemen should discover a zeal on the occasion which indicated too much of taking a personal interest in the question. He did not apprehend the consequences which would follow, if the accident should occur, would be so dreadful as the gentleman last up appeared to think. There was more danger, he conceived, in ruffling men's tempers now, by designating one officer heir apparent (if he might be allowed the expression) to the office of Chief Magistrate. He objected to filling up the blank with the Secretary of State; it would be putting in the hands of the President (or of the Vice President) a power of appointing his successor. The authority with which the Chief Justice is vested, the respect which his station commands, and his independence, induced him, he said, at first to think him the most proper person to be at the head of affairs, in case of vacancy in the Chief Magistracy. However, if it could not be agreed to postpone the business, he should now vote for the President of the Senate _pro tem_. Mr. BENSON said, that an honorable gentleman (Mr. SMITH) had remarked that he had not attempted to answer the objections which were made to the Chief Justice's being designated to fill the vacancy, and had drawn the conclusion that the objections were unanswerable. He was sensible that there might and would be objections to any officer that could be mentioned; but those against the Chief Justice he did not think unanswerable. It had been objected that there would be an impropriety in his condemning as Chief Justice, and pardoning as President. But something like this is frequently the case. He supposed that whoever exercised the office of Chief Magistrate would for the time resign his first office. He only mentioned this to show that the objections made to the Chief Justice had not been answered because they were deemed unanswerable. But his wish was to see the vacancy filled by an independent officer; he had, therefore, no objection to the President of the Senate _pro tem_. Mr. JACKSON moved that the consideration of this business be postponed, which was agreed to. The committee rose and reported. FRIDAY, January 21. _Duty on Spirits._ The House resumed the consideration of the new Revenue Bill. Mr. JACKSON proposed an amendment, by adding a clause to prevent inspectors, or any officers under them, from interfering, either directly or indirectly, in elections, further than giving their own votes, on penalty of forfeiting their offices. This being seconded, Mr. SHERMAN said, he should propose an addition to the amendment, and that was to extend the prohibition to every other person whatever. He supposed that to practise the arts of electioneering would be as criminal in persons in general as in the officers of the revenue; but if any provision is necessary in the case, he thought it might be made in some other bill. Mr. LIVERMORE approved the motion. These officers, said he, will hold their places under the Government, and, from the duties assigned them, will acquire such a knowledge of persons and characters, as will give them great advantages, and enable them to influence elections to a great degree. He thought the proposition important, and merited the attention of the House. Mr. VINING observed, that the motion went to disfranchise a great number of citizens of the rights of suffrage. It appeared to him, also, to be unconstitutional, as it will deprive them of speaking and writing their minds; a right of which no law can divest them. He offered some observations on the eligibility of the duty now contemplated, in preference to direct taxes; and then urged the bad policy of rendering the law odious, by fixing a stigma on the officers appointed to execute it. Mr. JACKSON replied to the observations against his motion. He said the experience of Great Britain showed the propriety of the prohibition. He read a section from a law passed in the reign of William and Mary on the subject. A law was found necessary in that country to prevent the interference of excise officers in elections, though the excise law then in existence was only for ten years, and that now before us is a perpetual law; for it is to exist till the whole State debts are extinguished. He denied that it was a disfranchisement of the citizens; they will have the same right to vote at the elections as other citizens; it only goes to defining an offence, which may be of pernicious consequence. Did I consider it as depriving the citizens of the rights of suffrage, I would be the last to vote for it. He adverted particularly to the dangerous influence that some future President would acquire, by virtue of the power which he will possess of removing these officers. He read some clauses from the British Excise Law, to show its resemblance to the law now under consideration. He added some strictures on the bill, and regretted that it had not been recommitted; but to render it less odious and mischievous he strongly urged the necessity of the section he had proposed. Mr. BENSON said, there appeared to him to be an absurdity to say a man shall forfeit an office which he holds during pleasure. Mr. GERRY objected to the motion, because he thought it did not go far enough; it ought to extend to all other revenue officers. He gave a short account of the nature of civil government; no form, said he, is stationary, they are always verging either to Democracy or Monarchy, or to Aristocracy and Despotism. From hence, he drew an inference favorable to a provision which should tend to abate and lessen the influence of the Executive power in certain cases. Mr. AMES objected to the motion. He said, the circumstances of this country and Great Britain were not similar. That country is without a constitution; the United States are blessed with one, which defines the rights of the electors and the elected; rights of which they cannot be deprived. The law which the gentleman referred to was not passed till the abuses it was intended to remedy had arisen to an enormous height. If ever there should be a necessity for a similar law in this country, which he by no means expected, it will then be time enough to make the regulation; but this clause will muzzle the mouths of freemen, and take away the use of their reason. Mr. BLOODWORTH replied to Mr. AMES. He observed, that corruptions had taken place; elections have been influenced, and human nature being the same, the same evils are to be expected. He thought it would be best to prevent the evil if possible by enacting a law in season, and not wait till the mischief is done. Mr. SENEY was in favor of the clause. He thought it would be a salutary provision, and no infringement on the rights of the people, as it would be optional to accept the offices or not, with this restriction. Mr. STONE was in favor of the motion. He observed, that it was a painful consideration that a number of citizens should be disfranchised, and deprived of their reason and speech, but this is a dilemma to which we shall be reduced by means of this excise law; we must either deprive the excise officers of this privilege of interfering, or give up the freedom of elections. Mr. VINING controverted the oft-repeated observation, that there was an analogy between the two countries, Great Britain and America. He urged an acceleration of the bill; delays he thought did not produce conviction, they only serve to inflame; he hoped the clause would not be agreed to, nor the bill recommitted. Mr. LAWRENCE was sorry that there were so many impediments thrown in the way of this bill. He could wish that the clause might be deferred, and made the subject of a separate discussion. He objected to it as not extensive enough. It ought to include all the officers of the Government. At present, he should waive any further remarks, but hoped the motion would not be agreed to at this time, but wished that the bill might be finished. Mr. SEDGWICK opposed the motion. He said, the natural tendency would be to render the law odious; to deprive the Government of the services of the best men in our country. Let me ask gentlemen, if they, or any of their connections, would accept an appointment under this law, with such an exceptionable clause in it? He observed on the total difference in the circumstances of this country and those of Great Britain; and asked, shall we transplant the corrupt maxims of that country to this? I hope we shall not. Mr. GERRY replied to the several objections which had been offered against the motion. It will be too late, said he, when the evil takes place to apply the remedy. The President will then have it in his power to influence the elections in such manner as to procure a Legislature that would not consent to a law for applying a remedy. Mr. AMES reprobated the motion in very pointed terms, as impolitic in respect to the law, as repugnant to the constitution, and as degrading to human nature. Besides, he observed, that it was nugatory in itself, because it goes to deprive the citizens of an inalienable right, which you cannot take from them, nor can they divest themselves of it. Mr. JACKSON made a short reply to Mr. AMES. He observed, that he had always supposed that the English nation possessed a constitution, and that the violation of the freedom of elections was the greatest infringement on that constitution. Mr. SHERMAN observed, that this motion went to create a positive offence. He said he could not conceive any reason why this offence should be chargeable on one description of officers only; he thought it ought to go through, and include every class. He replied to the several objections arising from the influence of the President; and observed, that fixing such a stigma would oblige the President to appoint mean and ordinary characters--characters fit to make tools of; for persons of credit and respectability will not accept of appointments under such a disqualification. The question was determined in the negative, the yeas and nays being as follows: YEAS.--Messrs. Ashe, Baldwin, Bloodworth, Brown, Burke, Floyd, Gerry, Grout, Hathorn, Heister, Jackson, Livermore, Mathews, Moore, Parker, Rensselaer, Seney, Sylvester, Stone, Tucker, and White--21. NAYS.--Messrs. Ames, Benson, Boudinot, Bourne, Cadwalader, Carroll, Clymer, Fitzsimons, Foster, Gale, Gilman, Goodhue, Griffin, Giles, Hartley, Huntington, Lawrence, Lee, Leonard, Madison, P. Muhlenberg, Schureman, Scott, Sedgwick, Sevier, Sherman, Sinnickson, Smith, (of Maryland,) Smith, (of South Carolina,) Steele, Sturges, Thatcher, Trumbull, Vining, Wadsworth, Williamson, and Wynkoop--37.[38] THURSDAY, January 27. _Duty on Spirits._ The engrossed bill, repealing, after the last day of June next, the duties heretofore laid on distilled spirits imported from abroad, and laying others in their stead, and also upon spirits distilled within the United States, and for appropriating the same, was passed by a majority of fourteen. The yeas and nays being called for, were as follows: YEAS.--Messrs. Ames, Benson, Boudinot, Bourne, Cadwalader, Carroll, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Griffin, Grout, Huntington, Lawrence, Lee, Leonard, Livermore, Madison, Partridge, Schureman, Sedgwick, Sherman, Sylvester, Sinnickson, Smith (of South Carolina), Sturges, Thatcher, Trumbull, Vining, Wadsworth, White, and Wynkoop--35. NAYS.--Messrs. Ashe, Baldwin, Bloodworth, Brown, Burke, Giles, Hartley, Hathorn, Heister, Jackson, Mathews, Moore, Muhlenberg, Parker, Van Rensselaer, Seney, Smith (of Maryland), Steele, Stone, Tucker, and Williamson--21. TUESDAY, February 1. _Bank of the United States._ The bill sent from the Senate, to incorporate the subscribers to the Bank of the United States, was read the third time; and, the question being on the passage of the bill, Mr. SMITH (of South Carolina) observed, that the bill being taken up rather unexpectedly yesterday, gentlemen did not appear prepared to discuss the subject. It therefore was suffered to be read in Committee of the Whole, and passed to the third reading, in his opinion, rather informally; as the members were thereby deprived of giving their sentiments in the usual manner on a bill of the greatest importance. He thought it susceptible of various amendments. [The SPEAKER having observed, that the bill, agreeably to the rules of the House, could not be amended without being recommitted,] Mr. S. moved, that the bill should be recommitted, for the purpose of making sundry alterations, and removing objections which he thought the bill liable to. He then enumerated several objections. Those who are to receive the subscriptions, he said, by the bill, are not obliged to give any bonds for their fidelity. He thought the clause which excludes foreigners from voting by proxy exceptionable; and the time in which subscriptions are to be received, he thought too contracted. Mr. JACKSON said he was in favor of the motion for a recommitment; but not for the reasons offered by the gentleman from South Carolina. He was opposed to the principle of the bill altogether. He then adverted to the situation of the United States, and observed, that it was so different from that of Great Britain, at the time the Bank was established in that country, that no reason in favor of the institution can be deduced from thence. He adverted to the arguments arising from the facility which banks afford of anticipating the public resources in case of emergency. This idea of anticipations he reprobated, as tending to involve the country in debt, and an endless labyrinth of perplexities. This plan of a National Bank, said he, is calculated to benefit a small part of the United States, the mercantile interest only; the farmers, the yeomanry, will derive no advantage from it; as the bank bills will not circulate to the extremities of the Union. He said he had never seen a bank bill in the State of Georgia, nor will they ever benefit the farmers of that State, or of New Hampshire. He urged that there was no necessity for instituting a new bank. There is one already established in this city, under the style of the Bank of North America. This proposed institution is an infringement of the charter of that bank, which cannot be justified. He urged the unconstitutionality of the plan; called it a monopoly; such a one as contravenes the spirit of the constitution; a monopoly of a very extraordinary nature; a monopoly of the public moneys for the benefit of the corporation to be created. He then read several passages from the _Federalist_, which he said were directly contrary to the assumption of the power proposed by the bill. He hoped, therefore, that it would be recommitted; and he could not help hoping, also, that it would be deferred to the next session. Mr. LAWRENCE observed, that the friends of the institution proposed had been unjustly charged with precipitating the bill; but, he said, it had long been in the hands of the members; they have had time to consider it; the usual forms have been observed in its progress thus far; and if those who are opposed to the bill did not see proper to come forward with their objections, it surely is their own fault, and the advocates of the bill are not justly chargeable with precipitancy. He then particularly replied to the objections offered by Mr. SMITH, of South Carolina; and after considering them, said, that those objections did not, in his opinion, constitute sufficient reason to induce a recommitment of the bill. He then noticed the constitutional objections of Mr. JACKSON, and said, the Government of the United States is vested by the constitution with a power of borrowing money; and in pursuance of this idea, they have a right to create a capital, by which they may, with greater facility, carry the power of borrowing on any emergency into effect. Under the late Confederation, the Pennsylvania Bank, called the Bank of North America, was instituted. He presumed that it will not be controverted, that the present Government is vested with powers equal to those of the late Confederation. He said, that he had no doubt its operation would benefit, not only the centre, but the extremities also of the Union. The commercial, mechanical, and agricultural interests of the United States are so combined, that one cannot be benefited without benefiting the other. He concluded by observing, that he thought the Legislature of the United States could not better answer the purposes of their appointment, than by passing this bill. He hoped, therefore, that it would not be recommitted, but that it would now pass. Mr. LEE observed, that having been confined by sickness, he was precluded from attending the House yesterday; but sick as he was, had he supposed that there was a prospect of a bill of such magnitude and importance passing without a discussion of its principles, he certainly would have attended, and offered his objections to various parts of it, which he thought very exceptionable. He hoped, therefore, it would now be recommitted; that a bill which is so unequal and so partial may undergo a thorough discussion. Mr. TUCKER was in favor of a recommitment. He acknowledged that those who had their objections to the bill were certainly blamable for not coming forward with them yesterday. He then stated sundry objections to the bill. The time allowed to receive the subscriptions, he said, is too short, and will benefit those only in the vicinity of the Bank. The clause which authorizes the loaning of one hundred thousand dollars to the Government, without express provision by law, he thought exceptionable, as the Executive will be able, by this means, to borrow at any time, without being authorized, to almost any amount, of the Bank. The loan of two millions of dollars by the United States to the Bank, he objected to; as diverting that sum from the particular object for which it was borrowed. There is no appropriation, he said, of the half yearly dividend of profits accruing to the United States, which, he observed, was a very essential defect. Mr. T. stated other objections, as reasons for a recommitment. Mr. WILLIAMSON was in favor of the recommitment, to give those who say they have not had an opportunity of offering their objections, time to do it; and if the motion be not agreed to, he should not give his vote for the bill. He then adverted to the objections deduced from the constitution, and explained the clause respecting monopolies as referring altogether to commercial monopolies. Mr. SHERMAN objected to the recommitment. He said, that though the bill could not be amended without its being recommitted, yet it was open to discussion and objection previous to taking a vote on its passage. He did not think the objections offered afforded sufficient reasons for a recommitment. He replied to the observations offered by several gentlemen who had spoken in favor of the motion. Mr. GERRY expressed his surprise at the observations of gentlemen who had neglected to offer their objections to the bill before, and said it could only be imputed to their own neglect, and not to any precipitancy on the part of the friends of the bill. Mr. G. noticed several objections which had been offered, and said, if nothing more important could be offered, he thought it would be unjustifiable in the House to go into a committee. Mr. MADISON observed, that at this moment it was not of importance to determine how it has happened that the objections which several gentlemen now say they have to offer against the bill were not made at the proper time. It is sufficient for them, if the candor of the House should lead them now to recommit the bill, that in a Committee of the Whole they may have an opportunity of offering their objections. Mr. AMES replied to Mr. MADISON. He said, he did not conceive that the appeal now made to the candor of the House was in point. The gentlemen who object to the bill had an opportunity to offer their objections; the customary forms have been attended to; and the whole question for the recommitment turns on the force of the objections which are now offered to the general principles of the bill altogether. The candor of the House, he conceived, was entirely out of the question, and therefore not to be appealed to; but the justice due to their constituents in the proper discharge of the duty reposed in them. He said, it appeared to him absurd to go into Committee of the Whole to determine whether the bill is constitutional or not. If it is unconstitutional, that amounts to a rejection of it altogether. Mr. MADISON thought there was the greatest propriety in discussing a constitutional question in Committee of the Whole. Mr. STONE and Mr. GILES were in favor of the recommitment. They objected to the unconstitutionality of the bill, and to several of its particular clauses. Mr. VINING said, he thought it was a subject of congratulation that the bill was in its present situation; it had happily passed to the third reading without that tedious discussion which bills usually receive. The subject has been a considerable time before the House, and gentlemen have had time to contemplate it. The bill is now in the stage to which gentlemen very usually reserve themselves to state their objections at large, and he hoped they would now do it. He was not perfectly satisfied as to the constitutional point. He therefore hoped gentlemen would state their objections, that those who are satisfied on that point may offer their reasons. Mr. BOUDINOT stated the process of the business yesterday. He observed that he had then the honor to be in the chair. He had read the bill very distinctly and deliberately, with proper pauses; he thought that the fullest opportunity had been offered for gentlemen to come forward with their objections. He was opposed to the recommitment, as it would, he feared, issue in a defeat of the bill this session. He had one difficulty, however, respecting the unconstitutionality of the bill, which he hoped to have removed; and he hoped that a full discussion of its general principles would take place. The motion for a recommitment was lost, as follows: YEAS.--Messrs. Ashe, Baldwin, Bloodworth, Bourne, Brown, Burke, Carroll, Contee, Gale, Grout, Giles, Jackson, Lee, Madison, Mathews, Moore, Parker, Smith, (of Maryland,) Smith, (of South Carolina,) Stone, Tucker, White, and Williamson--23. NAYS.--Messrs. Ames, Benson, Boudinot, Cadwalader, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Hartley, Hathorn, Heister, Huntington, Lawrence, Leonard, Livermore, Muhlenberg, Partridge, Rensselaer, Schureman, Scott, Seney, Sherman, Sylvester, Sinnickson, Steele, Sturges, Thatcher, Trumbull, Vining, Wadsworth, and Wynkoop--34. WEDNESDAY, February 2. _Bank of the United States._ The House resumed the consideration of the bill sent from the Senate to incorporate the subscribers to the Bank of the United States. The bill being on its passage, Mr. MADISON began with a general review of the advantages and disadvantages of banks. The former he stated to consist in, first, the aid they afford to merchants, who can thereby push their mercantile operations further with the same capital. Second, The aids to merchants in paying punctually the customs. Third, Aids to the Government in complying punctually with its engagements, when deficiencies or delays happen in the revenue. Fourth, In diminishing usury. Fifth, In saving the wear of gold and silver kept in the vaults, and represented by notes. Sixth, In facilitating occasional remittances from different places where notes happen to circulate. The effect of the proposed Bank, in raising the value of stock, he thought had been greatly overrated. It would no doubt raise that of the stock subscribed into the Bank; but could have little effect on stock in general, as the interest on it would remain the same, and the quantity taken out of the market would be replaced by bank stock. The principal disadvantages consisted in, first, banishing the precious metals, by substituting another medium to perform their office. This effect was inevitable. It was admitted by the most enlightened patrons of banks, particularly by _Smith on the Wealth of Nations_. The common answer to the objection was, that the money banished was only an exchange for something equally valuable that would be imported in return. He admitted the weight of this observation in general; but doubted whether, in the present habits of this country, the returns would not be in articles of no permanent use to it. Second. Exposing the public and individuals to all the evils of a run on the Bank, which would be particularly calamitous in so great a country as this, and might happen from various causes, as false rumors, bad management of the institution, an unfavorable balance of trade from short crops, &c. It was proper to be considered, also, that the most important of the advantages would be better obtained by several banks, properly distributed, than by a single one. The aids to commerce could only be afforded at or very near the seat of the Bank. The same was true of aids to merchants in the payment of customs. Anticipations of the Government would also be most convenient at the different places where the interest of the debt was to be paid. The case in America was different from that in England: the interest there was all due at one place, and the genius of the Monarchy favored the concentration of wealth and influence at the metropolis. He thought the plan liable to other objections. It did not make so good a bargain for the public as was due to its interests. The charter to the Bank of England had been granted for eleven years only, and was paid for by a loan to the Government on terms better than could be elsewhere got. Every renewal of the charter had, in like manner, been purchased; in some instances, at a very high price. The same had been done by the banks of Genoa, Naples, and other like banks of circulation. The plan was unequal to the public creditors; it gave an undue preference to the holders of a particular denomination of the public debt, and to those at and within reach of the seat of Government. If the subscriptions should be rapid, the distant holders of evidences of debt would be excluded altogether. In making these remarks on the merits of the bill, he had reserved to himself the right to deny the authority of Congress to pass it. He had entertained this opinion from the date of the constitution. His impression might, perhaps, be the stronger, because he well recollected that a power to grant charters of incorporation had been proposed in the General Convention and rejected. Is the power of establishing an incorporated bank among the powers vested by the constitution in the Legislature of the United States? This is the question to be examined. After some general remarks on the limitations of all political power, he took notice of the peculiar manner in which the Federal Government is limited. It is not a general grant, out of which particular powers are excepted; it is a grant of particular powers only, leaving the general mass in other hands. So it had been understood by its friends and its foes, and so it was to be interpreted. As preliminaries to a right interpretation, he laid down the following rules: An interpretation that destroys the very characteristic of the Government cannot be just. Where a meaning is clear, the consequences, whatever they may be, are to be admitted--where doubtful, it is fairly triable by its consequences. In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide. Contemporary and concurrent expositions are a reasonable evidence of the meaning of the parties. In admitting or rejecting a constructive authority, not only the degree of its incidentality to an express authority is to be regarded, but the degree of its importance also; since on this will depend the probability or improbability of its being left to construction. Reviewing the constitution with an eye to these positions, it was not possible to discover in it the power to incorporate a bank. The only clauses under which such a power could be pretended, are either: 1. The power to lay and collect taxes to pay the debts, and provide for the common defence and general welfare; or, 2. The power to borrow money on the credit of the United States; or, 3. The power to pass all laws necessary and proper to carry into execution those powers. The bill did not come within the first power. It laid no tax to pay the debts, or provide for the general welfare. It laid no tax whatever. It was altogether foreign to the subject. No argument could be drawn from the terms "common defence and general welfare." The power as to these general purposes was limited to acts laying taxes for them; and the general purposes themselves were limited and explained by the particular enumeration subjoined. To understand these terms in any sense that would justify the power in question, would give to Congress an unlimited power; would render nugatory the enumeration of particular powers; would supersede all the powers reserved to the State Governments. These terms are copied from the Articles of Confederation; had it ever been pretended that they were to be understood otherwise than as here explained? It had been said, that "general welfare" meant cases in which a general power might be exercised by Congress, without interfering with the powers of the States; and that the establishment of a National Bank was of this sort. There were, he said, several answers to this novel doctrine. 1. The proposed Bank would interfere, so as indirectly to defeat a State Bank at the same place. 2. It would directly interfere with the rights of the States to prohibit as well as to establish Banks, and the circulation of bank notes. He mentioned a law in Virginia actually prohibiting the circulation of notes payable to bearer. 3. Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the constitution of the States. 4. If Congress could incorporate a bank merely because the act would leave the States free to establish banks also, any other incorporations might be made by Congress. They could incorporate companies of manufacturers, or companies for cutting canals, or even religious societies, leaving similar incorporations by the States, like State Banks, to themselves. Congress might even establish religious teachers in every parish, and pay them out of the Treasury of the United States, leaving other teachers unmolested in their functions. These inadmissible consequences condemned the controverted principle. The case of the Bank established by the former Congress had been cited as a precedent. This was known, he said, to have been the child of necessity. It never could be justified by the regular powers of the Articles of Confederation. Congress betrayed a consciousness of this in recommending to the States to incorporate the Bank also. They did not attempt to protect the bank notes by penalties against counterfeiters. These were reserved wholly to the authority of the States. The second clause to be examined is that which empowers Congress to borrow money. Is this bill to borrow money? It does not borrow a shilling. Is there any fair construction by which the bill can be deemed an exercise of the power to borrow money? The obvious meaning of the power to borrow money, is that of accepting it from, and stipulating payment to those who are able and willing to lend. To say that the power to borrow involves a power of creating the ability, where there may be the will, to lend, is not only establishing a dangerous principle, as will be immediately shown, but is as forced a construction as to say that it involves the power of compelling the will, where there may be the ability to lend. The third clause is that which gives the power to pass all laws necessary and proper to execute the specified powers. Whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to Congress. Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers. The clause is in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and, as it were, technical means of executing those powers. In this sense it has been explained by the friends of the constitution, and ratified by the State conventions. The essential characteristic of the Government, as composed of limited and enumerated powers, would be destroyed, if, instead of direct and incidental means, any means could be used, which, in the language of the preamble to the bill, "might be conceived to be conducive to the successful conducting of the finances, or might be conceived to tend to give facility to the obtaining of loans." He urged an attention to the diffuse and ductile terms which had been found requisite to cover the stretch of power contained in the bill. He compared them with the terms necessary and proper, used in the constitution, and asked whether it was possible to view the two descriptions as synonymous, or the one as a fair and safe commentary on the other. If, proceeded he, Congress, by virtue of the power to borrow, can create the means of lending, and, in pursuance of these means, can incorporate a bank, they may do any thing whatever creative of like means. The East India Company has been a lender to the British Government, as well as the Bank, and the South Sea Company is a greater creditor than either. Congress, then, may incorporate similar companies in the United States, and that too not under the idea of regulating trade, but under that of borrowing money. Private capitals are the chief resources for loans to the British Government. Whatever then may be conceived to favor the accumulation of capitals may be done by Congress. They may incorporate manufacturers. They may give monopolies in every branch of domestic industry. If, again, Congress, by virtue of the power to borrow money, can create the ability to lend, they may, by virtue of the power to levy money, create the ability to pay it. The ability to pay taxes depends on the general wealth of the society, and this, on the general prosperity of agriculture, manufactures, and commerce. Congress then may give bounties and make regulations on all of these objects. The States have, it is allowed on all hands, a concurrent right to lay and collect taxes. This power is secured to them, not by its being expressly reserved, but by its not being ceded by the constitution. The reasons for the bill cannot be admitted, because they would invalidate that right; why may it not be conceived by Congress, that a uniform and exclusive imposition of taxes, would not less than the proposed Banks "be conducive to the successful conducting of the national finances, and tend to give facility to the obtaining of revenue, for the use of the Government?" The doctrine of implication is always a tender one. The danger of it has been felt in other Governments. The delicacy was felt in the adoption of our own; the danger may also be felt if we do not keep close to our chartered authorities. Mark the reasoning on which the validity of the bill depends! To borrow money is made the end, and the accumulation of capitals implied as the means. The accumulation of capitals is then the end, and a bank implied as the means. The bank is then the end, and a charter of incorporation, a monopoly, capital punishments, &c., implied as the means. If implications thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy. The latitude of interpretation required by the bill is condemned by the rule furnished by the constitution itself. Congress have power "to regulate the value of money;" yet it is expressly added, not left to be implied, that counterfeiters may be punished. They have the power "to declare war," to which armies are more incident than incorporated banks to borrowing; yet the power "to raise and support armies" is expressly added; and to this again, the express power "to make rules and regulations for the government of armies;" a like remark is applicable to the powers as to the navy. The regulation and calling out of the militia are more appertinent to war than the proposed Bank to borrowing; yet the former is not left to construction. The very power to borrow money is a less remote implication from the power of war, than an incorporated monopoly bank from the power of borrowing; yet, the power to borrow is not left to implication. It is not pretended that every insertion or omission in the constitution is the effect of systematic attention. This is not the character of any human work, particularly the work of a body of men. The examples cited, with others that might be added, sufficiently inculcate, nevertheless, a rule of interpretation very different from that on which the bill rests. They condemn the exercise of any power, particularly a great and important power, which is not evidently and necessarily involved in an express power. It cannot be denied that the power proposed to be exercised is an important power. As a charter of incorporation, the bill creates an artificial person, previously not existing in law. It confers important civil rights and attributes which could not otherwise be claimed. It is, though not precisely similar, at least equivalent, to the naturalization of an alien, by which certain new civil characters are acquired by him. Would Congress have had the power to naturalize, if it had not been expressly given? In the power to make by-laws, the bill delegated a sort of Legislative power, which is unquestionably an act of a high and important nature. He took notice of the only restraint on the by-laws, that they were not to be contrary to the law and the constitution of the Bank, and asked what law was intended; if the law of the United States, the scantiness of their code would give a power never before given to a corporation, and obnoxious to the States, whose laws would then be superseded, not only by the laws of Congress, but by the by-laws of a corporation within their own jurisdiction. If the law intended was the law of the State, then the State might make laws that would destroy an institution of the United States. The bill gives a power to purchase and hold lands; Congress themselves could not purchase lands within a State "without the consent of its Legislature." How could they delegate a power to others which they did not possess themselves? It takes from our successors who have equal rights with ourselves, and with the aid of experience will be more capable of deciding on the subject, an opportunity of exercising that right for an immoderate term. It takes from our constituents the opportunity of deliberating on the untried measure, although their hands are also to be tied by it for the same term. It involves a monopoly, which affects the equal rights of every citizen. It leads to a penal regulation, perhaps capital punishments, one of the most solemn acts of sovereign authority. From this view of the power of incorporation exercised in the bill, it could never be deemed an accessory or subaltern power, to be deduced by implication as a means of executing another power; it was in its nature a distinct, an independent and substantive prerogative, which not being enumerated in the constitution, could never have been meant to be included in it, and not being included could never be rightfully exercised. He here adverted to a distinction, which he said had not been sufficiently kept in view, between a power necessary and proper for the Government or Union, and a power necessary and proper for executing the enumerated powers. In the latter case, the powers included in the enumerated powers were not expressed, but to be drawn from the nature of each. In the former, the powers composing the Government were expressly enumerated. This constituted the peculiar nature of the Government; no power, therefore, not enumerated could be inferred from the general nature of Government. Had the power of making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented, or supplied by an amendment of the constitution. But the proposed Bank could not even be called necessary to the Government: at most it could be but convenient. Its uses to the Government could be supplied by keeping the taxes a little in advance; by loans from individuals; by the other banks, over which the Government would have equal command; nay greater, as it might grant or refuse to these the privilege (a free and irrevocable gift to the proposed Bank) of using their notes in the Federal revenue. He proceeded next to the contemporary expositions given to the constitution. The defence against the charge founded on the want of a bill of rights presupposed, he said, that the powers not given were retained; and that those given were not to be extended by remote implications. On any other supposition, the power of Congress to abridge the freedom of the press, or the rights of conscience, &c., could not have been disproved. The explanations in the State Conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. [Here he read sundry passages from the Debates of the Pennsylvania, Virginia, and North Carolina Conventions, showing the grounds on which the constitution had been vindicated by its principal advocates, against a dangerous latitude of its powers, charged on it by its opponents.] He did not undertake to vouch for the accuracy or authenticity of the publications which he quoted. He thought it probable that the sentiments delivered might, in many instances, have been mistaken, or imperfectly noted; but the complexion of the whole, with what he himself and many others must recollect, fully justified the use he had made of them. The explanatory declarations and amendments accompanying the ratifications of the several States formed a striking evidence, wearing the same complexion. He referred those who might doubt on the subject, to the several acts of ratification. The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for. These explanations were the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the States. He read several of the articles proposed, remarking particularly on the 11th and 12th; the former, as guarding against a latitude of interpretation; the latter, as excluding every source of power not within the constitution itself. With all this evidence of the sense in which the constitution was understood and adopted, will it not be said, if the bill should pass, that its adoption was brought about by one set of arguments, and that it is now administered under the influence of another set? and this reproach will have the keener sting, because it is applicable to so many individuals concerned in both the adoption and administration. In fine, if the power were in the constitution, the immediate exercise of it cannot be essential; if not there, the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation levelling all the barriers which limit the powers of the General Government, and protect those of the State Governments. If the point be doubtful only, respect for ourselves, who ought to shun the appearance of precipitancy and ambition; respect for our successors, who ought not lightly to be deprived of the opportunity of exercising the rights of legislation; respect for our constituents, who have had no opportunity of making known their sentiments, and who are themselves to be bound down to the measure for so long a period; all these considerations require that the irrevocable decision should at least be suspended until another session. It appeared on the whole, he concluded, that the power exercised by the bill was condemned by the silence of the constitution; was condemned by the rule of interpretation arising out of the constitution; was condemned by its tendency to destroy the main characteristic of the constitution; was condemned by the expositions of the friends of the constitution, whilst depending before the public; was condemned by the apparent intention of the parties which ratified the constitution; was condemned by the explanatory amendments proposed by Congress themselves to the constitution; and he hoped it would receive its final condemnation by the vote of this House. THURSDAY, February 3. _Bank of the United States._ The House resumed the consideration of the bill sent from the Senate, to incorporate the subscribers to the Bank of the United States. A motion was made by Mr. WILLIAMSON to recommit the bill, for the purpose of amending the first section by prolonging the time for receiving subscriptions from October to April; this motion occasioned some debate, and was determined in the negative; the yeas and nays being as follow: YEAS.--Messrs. Baldwin, Bloodworth, Brown, Burke, Carroll, Contee, Gale, Giles, Grout, Jackson, Lee, Madison, Mathews, Moore, Sevier, Smith, (of South Carolina,) Steele, Stone, Tucker, White, and Williamson--21. NAYS.--Messrs. Ames, Benson, Boudinot, Bourne, Cadwalader, Clymer, Fitzsimons, Floyd, Gerry, Gilman, Goodhue, Griffin, Hartley, Hathorn, Heister, Huntington, Lawrence, Leonard, Livermore, Muhlenberg, Parker, Partridge, Rensselaer, Schureman, Scott, Sedgwick, Seney, Sherman, Smith, (of Maryland,) Sylvester, Sinnickson, Sturges, Thatcher, Trumbull, Vining, Wadsworth, and Wynkoop--38. Mr. AMES.--Little doubt remains with respect to the utility of banks. It seems to be conceded within doors and without, that a public bank would be useful to trade, that it is almost essential to revenue, and that it is little short of indispensably necessary in times of public emergency. In countries whose forms of government left them free to choose, this institution has been adopted of choice, and in times of national danger and calamity, it has afforded such aid to Government as to make it appear, in the eyes of the people, a necessary means of self-preservation. The subject, however intricate in its nature, is at last cleared from obscurity. It would not be difficult to establish its principles, and to deduce from its theory such consequences as would vindicate the policy of the measure. But why should we lose time to examine the theory when it is in our power to resort to experience? After being tried by that test, the world has agreed in pronouncing the institution excellent. This new capital will invigorate trade and manufactures with new energy. It will furnish a medium for the collection of the revenues; and if Government should be pressed by a sudden necessity, it will afford seasonable and effectual aid. With all these and many other pretensions, if it was now a question whether Congress should be vested with the power of establishing a bank, I trust that this House and all America would assent to the affirmative. This, however, is not a question of expediency, but of duty. We are not at liberty to examine which of several modes of acting is entitled to the preference. But we are solemnly warned against acting at all. We are told that the constitution will not authorize Congress to incorporate the subscribers to the bank. Let us examine the constitution, and if that forbids our proceeding, we must reject the bill; though we shall do it with deep regret that such an opportunity to serve our country must be suffered to escape for the want of a constitutional power to improve it. The gentleman from Virginia considers the opposers of the bill as suffering disadvantage, because it was not debated as bills usually are in the Committee of the Whole. He has prepared us to pronounce a eulogium upon his consistency by informing us that he voted in the old Congress against the Bank of North America, on the ground of his present objection to the constitutionality. He has told us that the meaning of the constitution is to be interpreted by contemporaneous testimony. He was a member of the Convention which formed it, and of course his opinion is entitled to peculiar weight. While we respect his former conduct, and admire the felicity of his situation, we cannot think he sustains disadvantage in the debate. Besides, he must have been prepared with objections to the constitutionality, because he tells us they are of long standing, and had grown into a settled habit of thinking. Why, then, did he suffer the bill to pass the committee in silence? The friends of the bill have more cause to complain of disadvantage; for while he has had time to prepare his objections, they are obliged to reply to them without premeditation. In making this reply I am to perform a task for which my own mind has not admonished me to prepare. I never suspected that the objections I have heard stated had existence; I consider them as discoveries; and had not the acute penetration of that gentleman brought them to light, I am sure that my own understanding would never have suggested them. It seems strange, too, that in our enlightened country the public should have been involved in equal blindness. While the exercise of even the lawful powers of Government is disputed, and a jealous eye is fixed on its proceedings, not a whisper has been heard against its authority to establish a bank. Still, however unseasonably, the old alarm of public discontent is sounded in our ears. Two questions occur; may Congress exercise any powers which are not expressly given in the constitution, but may be deduced by a reasonable construction of that instrument? And, secondly, will such a construction warrant the establishment of the Bank? The doctrine that powers may be implied which are not expressly vested in Congress has long been a bugbear to a great many worthy persons. They apprehend that Congress, by putting constructions upon the constitution, will govern by its own arbitrary discretion; and therefore that it ought to be bound to exercise the powers expressly given, and those only. If Congress may not make laws conformably to the powers plainly implied, though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years' labor is lost, and worse than lost to the public, for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the constitution. Any words but those used in that instrument will be liable to a different interpretation. We may regulate trade; therefore we have taxed ships, erected light-houses, made laws to govern seamen, &c., because we say that they are the incidents to that power. The most familiar and undisputed acts of legislation will show that we have adopted it as a safe rule of action, to legislate beyond the letter of the constitution. He proceeded to enforce this idea by several considerations, and illustrated it by various examples. He said, that the ingenuity of man was unequal to providing, especially beforehand, for all the contingencies that would happen. The constitution contains the principles which are to govern in making laws; but every law requires an application of the rule to the case in question. We may err in applying it; but we are to exercise our judgments, and on every occasion to decide according to an honest conviction of its true meaning. The danger of implied power does not arise from its assuming a new principle; we have not only practised it often, but we can scarcely proceed without it; nor does the danger proceed so much from the extent of the power as from its uncertainty. While the opposers of the Bank exclaim against the exercise of this power by Congress, do they mark out the limits of the power which they will leave to us, with more certainty than is done by the advocates of the Bank? Their rules of interpretation by contemporaneous testimony, the debates of conventions, and the doctrine of substantive and auxiliary powers, will be found as obscure, and of course as formidable, as that which they condemn; they only set up one construction against another. The powers of Congress are disputed. We are obliged to decide the question according to truth. The negative, if false, is less safe than the affirmative, if true. Why, then, shall we be told that the negative is the safe side? Not exercising the powers we have, may be as pernicious as usurping those we have not. If the power to raise armies had not been expressed in the enumeration of the powers of Congress, it would be implied from other parts of the constitution. Suppose, however, that it were omitted, and our country invaded, would a decision in Congress against raising armies be safer than the affirmative? The blood of our citizens would be shed, and shed unavenged. He thought, therefore, that there was too much prepossession with some against the Bank, and that the debate ought to be considered more impartially, as the negative was neither more safe, certain, nor conformable to our duty than the other side of the question. After all, the proof of the affirmative imposed a sufficient burden, as it is easier to raise objections than to remove them. Would any one doubt that Congress may lend money, that they may buy their debt in the market, or redeem their captives from Algiers? Yet no such power is expressly given, though it is irresistibly implied. If, therefore, some interpretation of the constitution must be indulged, by what rules is it to be governed? The great end of every association of persons or States is to effect the end of its institution. The matter in debate affords a good illustration: a corporation, as soon as it is created, has certain powers, or qualities, tacitly annexed to it, which tend to promote the end for which it was formed; such as, for example, its individuality, its power to sue and be sued, and the perpetual succession of persons. Government is itself the highest kind of corporation; and from the instant of its formation, it has tacitly annexed to its being, various powers which the individuals who framed it did not separately possess, but which are essential to its effecting the purposes for which it was framed; to declare, in detail, every thing that Government may do could not be performed, and has never been attempted. It would be endless, useless, and dangerous; exceptions of what it may not do are shorter and safer. Congress may do what is necessary to the end for which the constitution was adopted, provided it is not repugnant to the natural rights of man, or to those which they have expressly reserved to themselves, or to the powers which are assigned to the States. This rule of interpretation seems to be safe, and not a very uncertain one, independently of the constitution itself. By that instrument certain powers are specially delegated, together with all powers necessary or proper to carry them into execution. That construction may be maintained to be a safe one which promotes the good of society, and the ends for which the Government was adopted, without impairing the rights of any man, or the powers of any State. This, he said, was remarkably true of the Bank; no man could have cause to complain of it; the bills would not be forced upon any one. It is of the first utility to trade. Indeed, the intercourse from State to State can never be on a good footing without a bank, whose paper will circulate more extensively than that of any State bank. Whether the power to regulate trade from State to State will involve that of regulating inland bills of exchange and bank paper, as the instruments of the trade, and incident to the power, he would not pause to examine. This is an injury and wrong which violates the right of another. As the bank is founded on the free choice of those who make use of it, and is highly useful to the people and to Government, a liberal construction is natural and safe. This circumstance creates a presumption in favor of its conformity to the constitution. This presumption is enforced by the necessity of a bank to other governments. The most orderly governments in Europe have banks. They are considered as indispensably necessary; these examples are not to be supposed to have been unnoticed. We are to pay the interest of our debt in thirteen places. Is it possible to transport the revenue from one end of the continent to the other? Nay, a week before the quarter's interest becomes due, transfers will be made which will require double the sum in Boston which was expected. To guard against this danger, an extra sum must be deposited at the different loan offices. This extra sum is not to be had; our revenue is barely equal to the interest due. This imposes an absolute necessity upon the Government to make use of a bank. The answer is, that the State banks will supply this aid. This is risking a good deal to the argument against the Bank; for will they admit the necessity, and yet deny to the Government the lawful and only adequate means for providing for it? Ten of the States have no banks; those who have may abolish theirs, and suffer their charters to expire. But the State banks are insufficient to the purpose; their paper has not a sufficient circulation; of course their capitals are small. Congress is allowed to have complete legislative power over its own finances; and yet without the courtesy of the States it cannot be exercised. This seems to be inconsistent. If a war should suddenly break out, how is Congress to provide for it? Perhaps Congress would not be sitting; great expenses would be incurred; and they must be instantly provided for. How is this to be done? By taxes? And will the enemy wait till they can be collected? By loans at home? Our citizens would employ their money in war speculations, and they are not individually in a condition to lend a sufficient sum in specie. Or shall we send across the sea for loans? The dispute between England and Spain furnishes an example; the aid of their banks for several millions was prompt and effectual. Or, will you say that Congress might issue paper money? That power, ruinous and fallacious as it is, is deduced from implication, for it is not expressly given. A bank only can afford the necessary aid in time of sudden emergency. If we have not the power to establish it, our social compact is incomplete, we want the means of self-preservation. I shall, perhaps, be told that necessity is the tyrant's plea. I answer that it is a miserable one when it is urged to palliate the violation of private right. Who suffers by this use of our authority? Not the States, for they are not warranted to establish a National Bank; not individuals, for they will be assisted in trade, and defended from danger by it. Having endeavored to enforce his argument, by noticing the uses of banks to trade, to revenue, to credit, and, in cases of exigency, he adverted to the authority of our own precedents. Our right to govern the Western Territory is not disputed. It is a power which no State can exercise; it must be exercised, and therefore it resides in Congress. But how does Congress get this power? It is not expressly given in the constitution, but is derived either from the nature of the case, or by implication from the power to regulate the property of the United States. If the power flows from the nature and necessity of the case, it may be demanded, is the renot equal authority for the Bank? If it is derived from the power of Congress to regulate the territory and other property of the United States, and to make all needful rules and regulations concerning it, and for the disposal of it, a strict construction would restrain Congress merely to the management and disposal of property, and of its own property; yet it is plain that more is intended. Congress has accordingly made rules, not only for governing its own property, but the property of the persons residing there. It has made rules which have no relation to property at all--for punishing crimes. In short, it exercises all power in that territory. Nay, it has exercised this very power of creating a corporation. The government of that territory is a corporation; and who will deny that Congress may lawfully establish a bank beyond the Ohio? It is fair to reason by analogy from a power which is unquestionable, to one which is the subject of debate. He then asked, whether it appeared, on this view of the subject, that the establishment of a National Bank would be a violent misinterpretation of the constitution? He did not contend for an arbitrary, unlimited discretion in the Government to do every thing. He took occasion to protest against such a misconception of his argument. He had noticed the great marks by which the construction of the constitution, he conceived, must be guided and limited; and these, if not absolutely certain, were very far from being arbitrary or unsafe. It is for the House, to judge whether the construction which denies the power of Congress is more definite and safe. In proving that Congress may exercise powers which are not expressly granted by the constitution, he had endeavored to establish such rules of interpretation, and had illustrated his ideas by such observations as would anticipate, in a considerable degree, the application of his principles to the point in question. Before he proceeded to the construction of the clauses of the constitution which apply to the argument, lie observed that it would be proper to notice the qualities of a corporation, in order to take a more exact view of the controversy. He adverted to the individuality and the perpetuity of a corporation, and that the property of the individuals should not be liable for the debts of the bank or company. These qualities are not more useful to the corporation than conformable to reason; but Government, it is said, cannot create these qualities. This is the marrow of the argument; for Congress may set up a bank of its own, to be managed as public property, to issue notes which shall be received in all payments at the Treasury, which shall be exchangeable into specie on demand, and which it shall be death to counterfeit. Such a bank would be less safe and useful than one under the direction of private persons; yet the power to establish it is indisputable. If Congress has the authority to do this business badly, the question returns, whether the powers of a corporation, which are essential to its being well done, may be annexed as incident to it. The Bank of New York is not a corporation, yet its notes have credit. Congress may agree with that bank, or with a company of merchants, to take their notes, and to cause all payments to pass through their coffers. Every thing that Government requires, and the bank will perform, may be lawfully done without giving them corporate powers; but to do this well, safely, and extensively, those powers are indispensable. This seems to bring the debate within a very narrow compass. This led him to consider whether the corporate powers are incidental to those which Congress may exercise by the constitution. He entered into a discussion of the construction of that clause which empowers Congress to regulate the territory and other property of the United States. The United States may hold property; may dispose of it; they may hold it in partnership; they may regulate the terms of the partnership. One condition may be, that the common stock only shall be liable for the debts of the partnership, and that any purchaser of a share shall become a partner. These are the chief qualities of a corporation. It seems that Congress, having power to make all needful rules and regulations for the property of the United States, may establish a corporation to manage it: without which we have seen that the regulations cannot be either safe or useful; the United States will be the proprietor of one-tenth of the bank stock. Congress may exercise exclusive legislation in all cases whatsoever over the ten miles square, and the places ceded by the States for arsenals, light-houses, docks, &c. Of course it may establish a bank in those places with corporate powers. The bill has not restrained the bank to this city; and if it had, the dispute would lose a part of its solemnity. If, instead of principles, it concerns only places, what objection is there to the constitutional authority of Congress to fix the Bank at Sandy Hook, or Reedy Island, where we have light-houses, and a right of exclusive legislation? A bank established there, or in the district located by law on the Potomac for the seat of Government, could send its paper all over the Union; it is true that the places are not the most proper for a bank; but the authority to establish it in them overthrows the argument which is deduced from the definite nature of the powers vested in Congress, and the dangerous tendency of the proposed construction of them. The preamble of the constitution warrants this remark, that a bank is not repugnant to the spirit and essential objects of that instrument. He then considered the power to borrow money. He said it was natural to understand that authority as it was actually exercised in Europe; which is, to borrow of the bank. He observed, the power to borrow was of narrow use without the institution of a bank; and in the most dangerous crisis of affairs would be a dead letter. After noticing the power to lay and collect taxes, he adverted to the sweeping clause, as it is usually called, which empowers Congress to exercise all powers necessary and proper to carry the enumerated powers into execution. He did not pretend that it gives any new powers; but it establishes the doctrine of implied powers. He then demanded whether the power to incorporate a bank is not fairly relative, and a necessary incident to the entire powers to regulate trade and revenue, and to provide for the public credit and defence. He entered into a particular answer to several objections, and after recapitulating his argument, he concluded with observing that we had felt the disadvantages of the Confederation. We adopted the constitution, expecting to place the national affairs under a Federal head; this is a power which Congress can only exercise. We may reason away the whole constitution. All nations have their times of adversity and danger; the neglect of providing against them in season may be the cause of ruining the country. FRIDAY, February 4. _Bank of the United States._ The House resumed the consideration of the bill for incorporating the Bank of the United States. The question being on the passage of the bill, Mr. SEDGWICK said, he would endeavor not to fatigue the patience of the House in the observations he should make on the important subject now under consideration. Without entering into the discussion on a scale so extensive as had been indulged by some gentlemen, he would dwell only on a few important principles, and such consequences as were conclusively deducible from them, which had made a strong impression on his own mind. The opposition to the bill had called in question the constitutional powers of Congress to establish the proposed corporation, and the utility of banks, neither of which till within a few days did he suppose was doubted by any intelligent man in America; and had charged the present system with holding out unequal terms against the Government to those who should subscribe to the proposed stock. With regard to the question of constitutionality, much had been said which, in his opinion, had not an intimate relation to the subject now before the House. We have with great earnestness been warned of the danger of grasping power by construction and implication; and this warning has been given in very animated language by the gentleman from Virginia (Mr. MADISON.) I do not wish to deprive that member of the honor of consistency; but I well remember the time when the energy of his reasoning impressed on the minds of the majority of this House a conviction that the power of removal from office, holden at pleasure, was, by construction and implication, vested by the constitution in the President; for there could be no pretence that it is expressly granted to him. He would only observe, in answer to every thing which had been said of the danger of extending construction and implication, that the whole business of legislation was a practical construction of the powers of the Legislature; and that probably no instrument for the delegation of power could be drawn with such precision and accuracy as to leave nothing to necessary implication. That all the different Legislatures in the United States had, and this, in his opinion, indispensably must construe the powers which had been granted to them, and they must assume such auxiliary powers as are necessarily implied in those which are expressly granted. In doing which, it was no doubt their duty to be careful not to exceed those limits to which it was intended they should be restricted. By any other limitation the Government would be so shackled that it would be incapable of producing any of the effects which were intended by its institution. He observed, that on almost all the great and important measures which come under the deliberation of Congress there were immense difficulties to be surmounted. If we attempt, said he, to proceed in one direction, our ears are assailed with the exclamation of "the constitution is in danger!" if we attempt to attain our objects by pursuing a different course, we are told the pass is guarded by the stern spirit of democracy. Did I concur with gentlemen in opinion on this subject, I should think it my duty to go home to my constituents, and honestly declare to them that by their jealousy of power they had so restrained the operations of the Government that we had not the means of effecting any of the great purposes for which the constitution was designed, without attempting, what perhaps would be found impracticable, to fix by general rules the nice point within which Congress would be authorized to assume powers by construction and implication, and beyond which they may be justly considered as usurpers. He wished gentlemen to reflect what effect a single principle, universally acknowledged, would have in determining the question now under consideration. It is universally agreed that wherever a power is delegated for express purposes, all the known and usual means for the attainment of the objects expressed are conceded also. That to decide what influence this acknowledged principle would have on the subject before the House, it would be necessary to reflect on the powers with which Congress are expressly invested. He then repeated that Congress was authorized to lay and collect taxes, to borrow money on the credit of the United States, to raise and support armies, provide and maintain navies, to regulate foreign and domestic trade, and to make all laws necessary and proper to carry these and the other enumerated powers into effect. They were, in fine, intrusted with the exercise of all those powers which the people of America thought necessary to secure their fame and happiness against the attacks of internal violence and external invasion; and in the exercise of those powers, the Legislature was authorized, agreeably to the principle which he had mentioned, to employ all the known and usual means necessary and proper to effectuate the ends which are expressed. It might be of use to determine with precision what was the meaning of the words _necessary_ and _proper_--they did not restrict the power of the Legislature to enacting such laws only as are indispensable. Such a construction would be infinitely too narrow and limited; and, to apply the meaning strictly, it would prove, perhaps, that all the laws which had been passed were unconstitutional; for few, if any of them, could be proved indispensable to the existence of the Government. The conduct of Congress had a construction on those words more rational and consistent with common sense and the purposes for which the Government was instituted; which he conceived to be that the laws should be established on such principles, and such an agency in the known and usual means employed in the execution of them, as to effect the ends expressed in the constitution with the greatest possible degree of public utility. If banks were among the known and usual means to effectuate or facilitate the ends which had been mentioned, to enable the Government, with the greatest ease and least burden to the people, to collect taxes, borrow money, regulate commerce, raise and support armies, provide and maintain fleets, he thought the argument irrefragable and conclusive to prove the constitutionality of the bill. Pursuing further the same idea, he asked for what purposes were banks instituted and patronized by Governments which were unrestricted by constitutional limitations? Were they not employed as the means and the most useful engines to facilitate the collection of taxes, borrowing money, and the other enumerated powers? Besides, he said, it was to be observed that the constitution had expressly declared the ends of legislation; but in almost every instance had left the means to the honest and sober discretion of the Legislature. From the nature of things this must ever be the case; for otherwise the constitution must contain not only all the necessary laws under the existing circumstances of the community, but also a code so extensive as to adapt itself to all future possible contingencies. By our constitution, Congress has not only the power to lay and collect taxes, but to do every thing subordinate to that end; the objects, the means, the instruments, and the purposes, are left to the honest and sober discretion of the Legislature. The power of borrowing money was expressly granted; but all the known and usual means to that end were left in silence. The same observations might with truth be made respecting the other delegated powers. The great ends to be obtained as means to effectuate the ultimate end--the public good and general welfare--are capable, under general terms, of constitutional specification; but the subordinate means are so numerous, and capable of such infinite variation, as to render an enumeration impracticable, and must therefore be left to construction and necessary implication. He said, on this ground, he was willing to leave the general argument; it was simple, intelligible, and he hoped would be thought conclusive. He said the constitutionality had been attacked from another quarter. It was said, we could not give commercial advantages to one port above another. The constitutional provision which had been quoted was undoubtedly intended to prevent a partial regulation of commerce; if extended to the case under consideration, it would much more strongly prove that Congress ought not to reside in any commercial city; for he verily believed that the commercial advantages of Philadelphia were incomparably greater from that residence than they could be supposed from the institution of a National Bank. Indeed, it was his opinion that, considering that this city had a bank, the capital of which was adequate to all her commercial exigencies; that she could enlarge that capital as her necessity should require; and that her bank will, if this bill should be rejected, receive the benefit of national operations, the measure will not advance her individual interest. With regard to the utility of banks, he observed that he would not attempt to display a knowledge of the subject by repeating all he had read and heard in relation to it, nor fatigue the House by a detail of his own reflections and reasoning upon it; the causes were unnecessary to be explained; the effects had been such in all countries where banks had been instituted, as to produce a unanimous opinion that they were alike useful for all the great purposes of Government, and to promote the general happiness of the people. Nor was our own experience wanting to the same purpose. At a time when our public resources were almost annihilated, our credit prostrate, our Government imbecile, and its patronage inconsiderable, a bank of small capital was among the most operative causes which produced that first dawn that ultimately terminated in meridian splendor by the establishment of peace, independence, and freedom. There were two circumstances which he would take the liberty to mention, which would render banks of more importance in this country than in any other country where they are at present in use: the first, the commercial enterprise of our merchants compared with the smallness of their capitals, which, as we had no large manufacturing capitals, whereby the precious metals could be retained in circulation, would frequently, by their exportation, greatly distress the people; the other originated from a measure of the Government. Congress, from a laudable intention of accommodating their constituents, instituted Treasuries in all the States; in some of these there would be, in the ordinary course of events, a deficiency, and in others a redundancy. To keep them in equilibrium by the transportation of the precious metals, or by the purchase of bills in the market, would be not only inconvenient and expensive, but would keep out of circulation a considerable part of the medium of the country. Gentlemen had been pleased to consider the proposed terms as giving an undue advantage to the stockholders. He would leave this part of the subject to gentlemen who better understood it; only observing, that as Government must rely principally on merchants to obtain the proposed stock, it would be necessary to afford to them sufficient motives to withdraw from their commercial pursuits a part of their capitals. He would attempt an answer to some of those desultory objections which had been made, and in doing this, he would omit to answer such as had been, in his opinion, already refuted. He observed, that it had been said that granting charters of incorporation was a high prerogative of Government. He supposed it was not intended that it was, in the nature of things, too transcendent a power to be exercised by a National Government, but that the exercise of it should only be in consequence of express delegation. Let this objection be compared with the conduct of Congress on another subject, in all respects at least as important. There is not, by the constitution, any power expressly delegated to mortgage our revenues, and yet, without any question being made on the constitutionality of the measure, we have mortgaged them to an immense amount. From whence, he asked, do we acquire the authority to exercise this power? Not from express grants, but being empowered to borrow money on the credit of the United States, we have very properly considered the pledging funds as among the known and usual means necessary and proper to be employed for the attainment of the end expressly delegated. It has been said that the bill authorized the stockholders to purchase real estate. He considered the provision in the bill in that regard, not a grant, but a limitation of power. Any man, or body of men, might, by the existing laws, purchase, in their own private capacities, real estate to any amount. This right was limited as it respected the proposed corporation. It is said there are banks already, and therefore the proposed incorporation is unnecessary. To this he answered, that if the Government should agree to receive all its demands in the paper of the existing banks, it would give to them every advantage which, in the opinion of gentlemen, renders the present system objectionable, without stipulating for any equivalent to the Government. But are, he asked, gentlemen serious in these observations? Do they believe the capitals of those banks adequate to the exigencies of the nation? Do they believe that those banks possess any powers by which they can give a projectile force to their paper, so as to extend its circulation throughout the United States? Or do they really wish to have the Government repose itself on institutions with which they have no intimate connection, and over which they have no control? Mr. S. concluded by observing he was very confident a majority of the House could never be induced to believe that it was the intention of the constitution to deprive the Legislature of one of the most important and necessary means of executing the powers expressly delegated. Mr. LAWRENCE.--The advocates of this measure stand in an unfortunate situation; for being those who in general advocate national measures, they are charged with designs to extend the powers of the Government unduly. He, however, consoled himself with a conscious attachment to the constitution, and with the reflection that their conduct received the approbation of their constituents. If the present be contrasted with the former circumstances of this country, he doubted not the measures of this Government would continue to receive the approbation of the people of the United States. The silence of the people on the subject now before the House is strongly presumptive that the measure of the Bank is not considered by them as unconstitutional. He then endeavored to show the constitutionality of the bank system. It must be conceded that there is nothing in the constitution that is expressly against it, and therefore we ought not to deduce a prohibition by construction; he adverted to the amendment proposed by Congress to the constitution, which says, "powers not delegated are retained;" here, said he, to prove that the Bank is unconstitutional, the constructive interpretation so much objected against is recurred to. The great objects of this Government are contained in the context of the constitution. He recapitulated those objects, and inferred that every power necessary to secure these must necessarily follow; for as to the great objects for which this Government was instituted, it is as full and complete in all its parts as any system that could be devised; a full, uncontrollable power to regulate the fiscal concerns of this Union, is a primary consideration in this Government, and from hence it clearly follows that it must possess the power to make every possible arrangement conducive to that great object. He then adverted to the late Confederation, and pointed out its defects and incompetency; and hence the old Congress called on the States to enact certain laws which they had not power to enact; from hence he inferred, that as the late Confederation could not pass those laws, and to capacitate the Government of the United States, and form a more perfect union, the constitution under which we now act was formed. To suppose that this Government does not possess the powers for which the constitution was adopted, involves the grossest absurdity. The deviation from charters, and the infringement of parchment rights, which had been justified on the principle of necessity by the gentleman from Virginia, (Mr. MADISON,) he said had been made on different principles from those now mentioned; the necessity, he contended, did not at the time exist; the old Congress exercised the power, as they thought, by a fair construction of the Confederation. On constructions, he observed, it was to be lamented that they should ever be necessary; but they had been made; he instanced the power of removability, which had been an act of the three branches, and has not been complained of. It was at least as important a one as the present. But the construction now proposed, he contended, was an easy and natural construction. Recurring to the collection law, he observed, that it was by construction that the receipts are ordered to be made in gold and silver. With respect to creating a mass of capital, he supposed just and upright national measures would create a will to form this capital. Adverting to the idea that Congress has not the power to establish companies with exclusive privileges, he observed, that by the amendments proposed by New Hampshire, Massachusetts, and New York, it plainly appears that these States considered that Congress does possess the power to establish such companies. The constitution vests Congress with power to dispose of certain property in lands, and to make all useful rules and regulations for that purpose; can its power be less over one species of its own property than over another? With respect to giving preference to one State over another, he observed, that ten years hence the seat of Government is to be on the Potomac, and wherever the Government is finally settled, the place will enjoy superior advantages; but still the Government must go thither, and the places not enjoying those advantages must be satisfied. It is said we must not pass a problematical bill, which is liable to a supervision by the Judges of the Supreme Court; but he conceived there was no force in this, as those judges are invested by the Constitution with a power to pass their judgment on all laws that may be passed. It is said that this law may interfere with the State Governments; but this may or may not be the case; and in all interference of the kind the particular interest of a State must give way to the general interest. With respect to the corporation possessing the power of passing laws, this, he observed, is a power incidental to all corporations; and in the instance of the Western Territory, Congress have exercised the power of instituting corporations or bodies politic, to the greatest possible extent. He defended the right of Congress to purchase and possess property, and quoted a passage in the Constitution to show that they possess this right. He then touched on the expediency of banks, and of that proposed in particular. The advantages generally derived from these institutions, he believed, applied peculiarly to this country. He noticed the objection from banks banishing the specie; he said the surplus only would be sent out of the country; but is it given away? No, sir, it is sent off for articles which are wanted, and which will enrich the country. With respect to a run on the Bank, he mentioned the circumstances under which those runs on the British banks, which had been noticed, took place; and showed there was no parallel that would probably ever take place in this country. For several particulars he showed that the objection which arose from the United States not having a good bargain by the system was not well founded. He then mentioned the peculiar advantages which the United States will enjoy over common subscribers. The objection from banks being already established in the several States he obviated by stating the mischiefs which might arise from an ignorance of the situation of those banks; and concluded by some remarks on the inexpediency of the General Government having recourse to institutions of merely a local nature. Mr. JACKSON said, that having been the person who brought forward the constitutional objection against the bill, he thought himself bound to notice the answers which had been offered to that objection. Newspaper authorities, said he, have been alluded to, and their silence on the subject considered as indicating the approbation of the people. He would meet the gentlemen on that ground; and, though he did not consider newspapers as an authority to be depended on, yet if opinions through that channel were to be regarded, he would refer the gentlemen to those of this city; the expediency and constitutionality of the bill have been called in question by the newspapers of this city. The latitude contended for in constructing the constitution on this occasion he reprobated very fully. If the sweeping clause, as it is called, extends to vesting Congress with such powers, and necessary and proper means are an indispensable implication in the sense advanced by the advocates of the bill, we shall soon be in possession of all possible powers, and the charter under which we sit will be nothing but a name. This bill will essentially interfere with the rights of the separate States, for it is not denied that they possess the power of instituting banks; but the proposed corporation will eclipse the Bank of North America, and contravene the interests of the individuals concerned in it. He then noticed the several arguments drawn from the doctrine of implication; the right to incorporate a National Bank has been adduced from the power to raise armies; but he presumed it would not be contended that this is a bill to provide for the national defence. Nor could such a power, in his opinion, be derived from the right to borrow money. It has been asked what the United States could do with the surplus of their revenue without the convenience of a bank in which to deposit it with advantage? For his part, though he wished to anticipate pleasing occurrences, he did not look forward to the time when the General Government would have this superabundance at its disposal. The right of Congress to purchase and hold lands has been urged to prove that they can transfer this power; but the General Government is expressly restricted in the exercise of this power; the consent of the particular State to the purchase for particular purposes only is requisite; these purposes are designated, such as building light-houses, erecting arsenals, &c. It has been said that banks may exist without a charter; but that this incorporation is necessary in order that it may have a hold on the Government. Mr. J. strongly reprobated this idea. He was astonished to hear such a declaration, and hoped that such ideas would prevent a majority of the House from passing a bill that would thus establish a perpetual monopoly; we have, said he, I believe, a perpetual debt; I hope we shall not have a perpetual corporation. What was it drove our forefathers to this country? Was it not the ecclesiastical corporations and perpetual monopolies of England and Scotland? Shall we suffer the same evils to exist in this country instead of taking every possible method to encourage the increase of emigrants to settle among us? For if we establish the precedent now before us, there is no saying where it will stop. The power to regulate trade is said to involve this as a necessary means; but the powers consequent on this express power are specified, such as regulating light-houses, ships, harbors, &c. It has been said that Congress has borrowed money; this shows that there is no necessity of instituting any new bank, those already established having been found sufficient for the purpose. He denied the right of Congress to establish banks at the permanent seat of Government, or on those sandheaps mentioned yesterday; for if they should, they could not force the circulation of their paper one inch beyond the limits of those places. But it is said, if Congress can establish banks in those situations, the question becomes a question of place, and not of principle; from hence it is inferred that the power may be exercised in any other part of the United States. This appeared to him to involve a very dangerous construction of the powers vested in the General Government. Adverting to the powers of Congress in respect to the finances of the Union, he observed that those powers did not warrant the adoption of whatever measures they thought proper. The constitution has restricted the exercise of those fiscal powers; Congress cannot lay a poll tax, nor impose duties on exports; yet these undoubtedly relate to the finances. The power exercised in respect to the Western Territory, he observed, had reference to property already belonging to the United States; it does not refer to property to be purchased, nor does it authorize the purchase of any additional property; besides, the powers are express and definite, and the exercise of them in making needful rules and regulations in the government of that Territory does not interfere with the rights of any of the respective States. Mr. J. denied the necessity of the proposed institution; and noticing the observation of Mr. AMES, that it was dangerous on matters of importance not to give an opinion, observed that be could conceive of no danger that would result from postponing that construction of the constitution now contended for to some future Congress, who, when the necessity of a banking institution shall be apparent, will be as competent to the decision as the present House. Alluding to the frequent representations of the flourishing condition of the country, he inferred that this shows the necessity of the proposed institution does not exist at the present time; why, then, should we be anticipating for future generations? State banks he considered preferable to a National Bank, as counterfeits can be detected in the States; but if you establish a National Bank, the checks will be found only in the city of Philadelphia or Conococheague. He passed a eulogium on the Bank of Pennsylvania; the stockholders, said he, are not speculators; they have the solid coin deposited in their vaults. He adverted to the preamble and context of the constitution, and asserted that this context is to be interpreted by the general powers contained in the instrument. Noticing the advantages which it had been said would accrue to the United States from the Bank, he asked, is the United States going to commence stockjobbing? The "general welfare" are the two words that are to involve and justify the assumption of every power. But what is this general welfare? It is the welfare of Philadelphia, New York, and Boston; for as to the States of Georgia and New Hampshire, they may as well be out of the Union for any advantages they will receive from the institution. He reprobated the idea of the United States deriving any emolument from the Bank, and more especially he reprobated the influence which it was designed the Government should enjoy by it. He said the Banks of Venice and Amsterdam were founded on different principles. In the famous Bank of Venice, though the Government holds no shares, yet it has at command five millions of ducats; but the United States were to be immediately concerned in theirs, and become stockholders. The Bank of Amsterdam was under the entire direction of the burgomasters, who alone had the power of making by-laws for its regulation. This power, by the bill, was given up by Government, very improperly he thought, and was to be exercised by the stock-jobbers. The French Bank, he added, was first established upon proper principles and flourished, but afterwards became a royal bank; much paper was introduced, which destroyed the establishment, and was near oversetting the Government. The facility of borrowing he deprecated; it will involve the Union in irretrievable debts; the facility of borrowing is but another name for anticipation, which will in its effects deprive the Government of the power to control its revenues; they will be mortgaged to the creditors of the Government. Let us beware of following the example of Great Britain in this respect. He said, undue advantages had been taken in precipitating the measure, and the reasonable proposition respecting the State debts is not admitted. This I consider as partial and unjust. A gentleman from Virginia has well observed that we appear to be divided by a geographical line; not a gentleman scarcely to the eastward of a certain line is opposed to the Bank, and where is the gentleman to the southward that is for it? This ideal line will have a tendency to establish a real difference. He added a few more observations, and concluded by urging a postponement, if any regard was to be had to the tranquillity of the Union. Mr. BOUDINOT said he meant to confine himself to two or three great points on which the whole argument appeared to him to rest. He considered the objections to the bill as pointed against its constitutionality and its expediency. It was essential, he observed, that every member should be satisfied, as far as possible, of the first; for however expedient it might be, if it was clearly unconstitutional, the bill should never receive the sanction of the representatives of the people. He would, in a great measure, refer its expediency, if constitutional, to the experience of every gentleman of the House, as the most satisfactory proof on that head, and he conceived there was no need of much argument in support of its decision. The first question then was, is Congress vested with a power to grant the privileges contained in the bill? This is denied, and ought to be proved. In order to show in what manner this subject had struck his mind, he first laid down these principles: Whatever power is exercised by Congress must be drawn from the constitution; either from the express words or apparent meaning, or from a necessary implication arising from the obvious intent of the framers. That whatever powers (vested heretofore in any individual State) not granted by this instrument, are still in the people of such State, and cannot be exercised by Congress. That whatever implication destroys the principle of the constitution ought to be rejected. That in construing an instrument, the different parts ought to be so expounded as to give meaning to every part which will admit of it. Having stated these preliminaries, Mr. B. proceeded to inquire what were the powers attempted to be exercised by this bill? For, until the powers were known, the question of constitutionality could not be determined. By it Congress was about to exercise the power of incorporating certain individuals, thereby establishing a banking company for successfully conducting the finances of the nation. The next inquiry is, what rights will this company enjoy in this new character, that they do not enjoy independent of it? Every individual citizen had an undoubted right to purchase and hold property, both real and personal, to any amount whatever; to dispose of this property to whom and on what terms he pleased; to lend his money on legal interest to any person willing to take the same; and indeed to exercise every power over his property that was contained in the bill. Individual citizens, then, having these powers, might also associate together in company or copartnership, and jointly exercising the same rights, might hold lands in joint tenancy, or as tenants in common, to any amount whatever; might put any sum of money into joint stock; might issue their notes to any amount; might make by-laws or articles of copartnership for their own government; and, finally, might set up a bank to any amount, however great, and no authority in the Government could legally interfere with the exercise of these rights. The great difference between this private association of citizens, in their individual capacities, and the company to be created by this bill, and which is held up in so dangerous a light, is, that the one exposes the company to the necessity of using each individual's name in all their transactions; suits must be brought in all their names; deeds must be taken and given in like manner; each one in his private estate is liable for the default of the rest; the death of a member dissolves the partnership as to him; and for want of a political existence the union may be dissolved by any part of its members, and of course many obvious inconveniences must be suffered merely of an official kind. By the bill these difficulties are to be removed by conveying three qualities to them. 1st. Individuality, or constituting a number of citizens into one legal artificial body, capable by a fictitious name of exercising the rights of an individual. 2d. Irresponsibility in their individual capacity, not being answerable beyond the joint capital. 3d. Durability, or a political existence for a certain time, not to be affected by the natural death of its members. These are the whole of the powers exercised, and the rights conveyed. It is true these are convenient and advantageous to the company, but of trifling importance when considered as a right of power exercised by a National Legislature for the benefit of the Government. Can it be of any importance to the State whether a number of its citizens are considered, in legal contemplation, as united in an individual capacity, or separately as so many individuals, especially if the public weal is thereby promoted? By their irresponsibility being known, every person dealing with them gives his tacit consent to the principle, and it becomes part of the contract. And by political duration their powers and abilities are limited, and their rights restricted, so as to prevent any danger that might arise from the exercise of their joint natural right, not only as to the amount of their capital, but as to the by-laws they may make for their government. A private bank could make contracts with the Government, and the Government with them, to all intents and purposes, as great and important as a public bank, would their capital admit of it; though they would not possess such qualities as to justify the confidence of Government, by depending on them in a time of danger and necessity. This might put it in the power of any individuals to injure the community in its essential interests by withdrawing the capital when most needed. To prevent this, and many other inconveniences, it is necessary that a bank for the purposes of Government should be a legally artificial body, possessing the three qualities above mentioned. Mr. B. then took up the constitution, to see if this simple power was not fairly to be drawn by necessary implication from those vested by this instrument in the legislative authority of the United States. It sets out in the preamble with declaring the general purposes for which it was formed: "The insurance of domestic tranquillity, provision for the common defence, and promotion of the general welfare." These are the prominent features of this instrument, and are confirmed and enlarged by the specific grants in the body of it, where the principles on which the Legislature should rest after their proceedings are more fully laid down, and the division of power to be exercised by the general and particular Governments distinctly marked out. By the 8th section, Congress has power "to levy taxes, pay debts, provide for the common defence and general welfare, declare war, raise and support armies, provide for and maintain a navy;" and as the means to accomplish these important ends, "to borrow money," and finally, "to make all laws necessary and proper for carrying into execution the foregoing powers." Let us, then, inquire, is the constituting a public bank necessary to these important and essential ends of Government? If so, the right to exercise the power must be in the supreme Legislature. He argued that the power was not contained in express words, but that it was necessarily deduced by the strongest and most decisive implication, because he contended that it was a necessary means to attain a necessary end. Necessary implication had led Congress under the power to lay and collect impost and taxes, to establish officers for the collection, to inflict penalties against those who should defraud the revenue, to oblige vessels to enter at one port and deliver in another; subjected them to various ceremonies in their proceedings, for which the owners were made to pay; and he conceived that it was not so great an exertion of power by implication to incorporate a company for the purpose of a bank. He also deduced the right from the power of paying debts, raising armies, providing for the general welfare and common defence, for which they were to borrow money. All these necessarily include the right of using every proper and necessary means to accomplish these necessary ends. It is certain, he said, that money must be raised from the people. This could not be done in sums sufficient for the exigencies of Government in a country where the precious metals were as scarce as in this. The people in general are poor when compared with European nations; they have a wilderness to subdue and cultivate; taxes must be laid with prudence, and collected with discretion; the anticipation of the revenues, therefore, by borrowing money, becomes absolutely necessary. If so, then as the constitution had not specified the manner of borrowing, or from whom the loan was to be obtained, the supreme Legislature of the Union were at liberty, it was their duty, to fix on the best mode of effecting the purposes of their appointment. For it was a sound principle, that when a general power is granted, and the means are not specified, they are left to the discretion of those in whom the trust is reposed, provided they do not adopt means expressly forbidden. The public defence, or general welfare, resting on the annual supplies from uncertain revenues, would expose the very existence of the community. It is the duty of those to whom the people have committed this power to prepare in time of peace for the necessary defence in a time of war. The United States are now happily in a state of peace; but it was impossible for any one to say how long it would continue. By prudent management it might be long preserved; but this prudence consisted in being always found in a state of preparation to defend our country. The constitution contemplates this very duty by authorizing Congress to provide for the common defence by borrowing money. Why borrow money? Are not the annual revenues sufficient? It might be so, if nothing was to be attended to but internal wants; but the common defence and general welfare loudly call for that provision which will produce a constant guard on external enemies and internal insurrections. To this necessary end it becomes Congress to provide that the necessary means may be always at hand, by being able to arm their citizens and provide their support while engaged in the defence of their common country. This can be done only by borrowing money, which is usually of citizens or foreigners; if of the first, it must be from individuals or from private banks: will it be prudent to trust to either? Loans from individuals were attempted during the war, when patriotism produced a will in some lenders, and others were glad to get rid of a depreciating paper currency almost on any terms whatever. But even these loans, arising from this paper medium with which the market was glutted, were altogether insufficient; and by one change of circumstances every hope was precluded of being any way successful in procuring money from that source. The circumstances of individuals, too, in this country are such, when compared with the wants of a nation, as to render the source too vague and uncertain to rely upon; and it would be a most improvident execution of the powers granted for the express purpose of the common defence and general welfare. Private banks are almost as inadequate to the object, and for reasons already given, were neither to be depended on for will or capital as to the supply for the principal wants of Government. They are generally established for commercial purposes, and on capitals not always sufficient for them. If they should be prevailed upon at any time to attempt to supply the demands of a nation at war, it must be from a general combination of their whole stocks, to the destruction of the original designs of their several institutions. This ought not to be expected; for as far as it goes to the depression of the mercantile interests, so far it is injurious to the Government; besides, a dependence upon such a combination would be impolitic, both from its slowness and uncertainty. The votes of a few individuals affected by local, selfish, or adverse politics, might endanger the whole people. Such a dependence ought not to be attributed to the wise framers of the constitution, neither does the language warrant it. But foreign loans have been mentioned, as a proper source for this purpose. The imprudence of placing the common defence of a nation on the will of those who have no interest in its welfare is a good answer to this observation. Would it be prudent to trust a foreigner, perhaps a rival, if not an enemy, with your supply of what has emphatically been called the sinews of war? Would it not expose us to exorbitant demands, and often a refusal? Many adventitious circumstances of a war, increasing demands from all quarters, scarcity of coin, and difficulty of communication, as well as the intrigues of courts, all loudly oppose the measure, as contrary to the spirit and meaning of a provision for the common defence and general welfare. The only resort then, he conceived, was by a timely provision to secure institutions at home from which loans might be obtained at all times on moderate terms, and to such amount as the necessity of the State might require. But gentlemen say that the constitution does not expressly warrant the establishment of such a corporation. If by _expressly_, express words are meant, it is agreed that there are no express words; and this is the case with most of the powers exercised by Congress; for if the doctrine of necessary implication is rejected, he did not see what the supreme Legislature of the Union could do in that character. If this power is not clearly given in the constitution by necessary implication, then is a necessary end proposed and directed, while the common and usual necessary means to attain that end are refused, or at least not granted. Mr. B. was firmly of opinion that a National Bank was the necessary means, without which the end could not be obtained. Theory proved it so in his opinion, and the experience of the Union in a day of distress had fully confirmed the theory. The struggles of the friends of freedom during the late contest had nearly been rendered abortive for want of this aid. That danger which was then so hardly avoided became a solemn memento to this House to provide against a similar case of necessity. This was the time to do it with advantage, being in such profound peace. He had not heard any argument by which it was proved that individuals, private banks, or foreigners, could with safety and propriety be depended on as the efficient and necessary means for so important a purpose. Although money was at present plentiful in Europe, and might be borrowed on easy terms, it might not be so to-morrow, in case a war should break out, and our necessities become pressing. He again enumerated the harmless qualities with which it was proposed to vest the bank corporation, by the bill on the table, for the important purposes of the common defence and general welfare. Gentlemen had not yet pointed out any danger arising to the community, neither did he think it possible that any could ever be mentioned equal to those of suffering the Government to depend on individuals or private banks for loans in a day of distress. But it was said that this bill gave the corporation a right to hold real property in a State, which Congress had no power to do. The terms of the bill are misapprehended; this is a right which has been already shown, attaches to the citizens individually, or in their associated capacity; the bill, therefore, does no more than to vest a number with an artificial single capacity under a fictitious name, and by that name to hold lands, make by-laws, &c.; all which they might have done before as citizens in a collective capacity. So far from giving a new power, their original individual rights are limited for the public safety as to the amount of their stock and the duration of their existence. Mr. B. then proceeded to cite numerous instances of powers exercised by Congress during the last two years, deduced under the constitution by necessary implication, to show the utter impossibility of carrying any one provision of that authority into execution for the benefit of the people without this reasonable latitude of construction. He also adverted to some instances of the like conduct under the former Confederation. It had been urged that the new Congress had no rights or powers but what had been vested in and given to them by the individual States, and therefore they could not accept a cession from Great Britain by the treaty of peace of the lands extending to the Lake of the Woods, because not before included in any individual State. Every member was soon convinced of the absurdity of the argument, and by a necessary implication established the power of the Confederated Legislature. During the war the Commander-in-chief gave a passport to a British officer to transmit clothing to the British prisoners at Lancaster. He accordingly conveyed a very large quantity of British goods into Pennsylvania for that purpose; which being directly against an express law of that State, they were seized and condemned by the proper magistrate. On a complaint to the Legislature of the State, they referred the same to their Judicial officers, upon whose report (that Congress being vested with the power of declaring war, the right of giving safe passports to an enemy was necessarily implied, which, therefore, was duly exercised by their Commander-in-chief, though no express power was given to him for that purpose) the Legislature declared their law directing the condemnation of the goods void _ab initio_, and the judgment of condemnation had no effect. This was also the rule that governed this House with regard to the removability of officers by the President, and the authority given to a Council to legislate for the Western Territory. In fine, he concluded, that it was universally understood that whenever a general power was given, especially to a supreme Legislature, every necessary means to carry it into execution were necessarily included. This was the common sense of mankind, without which it would require a multitude of volumes to contain the original powers of an increasing Government that must necessarily be changing its relative situation every year or two. If power was given to raise an army, the making provision for all the necessary supplies and incidental charges was included. If a navy was to be formed, the manning and supplying the warlike stores are necessarily included. If a power is given to borrow money, a right to mortgage or pledge the public property to secure the repayment is understood to be vested in the borrower. Take up the present statute book, and every page will afford evidence of this doctrine. Examine the law with regard to crimes and punishments; under the power of establishing courts, we have implied the power of punishing the stealing and falsifying the records, and ascertained the punishment of perjury, bribery, and extortion. Under the power of regulating trade, we have accepted cessions of real estate, and built light-houses, piers, &c. All this is under the doctrine of necessary implication for the public good; and in cases not so strong as the present, and on the exercise of which no gentleman thought proper to start this objection. This construction appears so natural and necessary, that the good sense of every gentleman on the floor has hitherto led him to proceed on this principle ever since we began to legislate; what principle of the constitution does it destroy? It gives nothing that can affect the rights of any State or citizen. Indeed, it has been said that it is exercising a high act of power; he thought it had been shown to be rather of the inferior kind; but allow the position, and who so proper as the Legislature of the whole Union to exercise such a power for the general welfare? It has also been said that this power is a mere conveniency for the purpose of fiscal transactions, but not necessary to attain the ends proposed in the constitution. This is denied, and at best is mere matter of opinion, and must be left to the discretion of the Legislature to determine. Mr. B. said, he should now conclude what he had to say, had not an honorable gentleman (Mr. JACKSON) brought forward the observations of the author of the _Federalist_, vol. 2, p. 72, 73, 74, to show a different contemporaneous exposition of the constitution, and charged the author, who he alleged was said to be also the author of the present plan before the House, with a change of sentiment. As this gentleman is not here to speak for himself, he ought to have the next best chance by having what he then wrote candidly attended to, especially as gentlemen allow him to be a good authority. Mr. B. read only part of the 73d page referred to by Mr. JACKSON, in these words: "Had the Convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the constitution relates; accommodated, too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers which are the means of attaining the general power must always necessarily vary with that object, and be often properly varied whilst the object remains the same." How these sentiments can be said to be a different contemporaneous exposition must be left to the House to determine. Mr. B. then begged the indulgence of the House to hear the same gentlemen when arguing expressly on that part of the constitution now under consideration; and then read pp. 144, 145, and 146, of the 1st vol. of the _Federalist_, which are too long to be inserted. He declared that, in his opinion, it was impracticable to put together language in the same length that could more forcibly and pointedly elucidate and prove the construction contended for in support of the bill on the table. There remained yet but two objections, to answer which Mr. B. would detain the House a little longer. The gentleman from Georgia (Mr. JACKSON) had charged the measure with establishing the commercial interests, to the great injury of the agricultural. If this was true he never would agree to it, for he considered the agricultural interests of America as its great and sure dependence. Mr. B. confessed that so far from seeing these measures in this point of light, he could not bring his mind to comprehend how the commercial interests of a country could be promoted without greatly advancing the interests of agriculture. Will the farmer have any temptation to labor, if the surplus of what he raises beyond his domestic consumption is to perish in his barn for want of a market? Can a market be obtained without the merchant? If commerce flourishes, the merchants increase, and of course the demand for the produce of the land; but if the mercantile interests fail, there is none to export the surplus produced by agriculture. If the farmer should undertake to export his own produce, he could not give his whole attention to his affairs; or, if the merchant should attempt to raise the grain he wanted, he could not carry on his merchandise. The one interest depends on the other; a separation destroys both. But the incapacity of the Bank to extend its influence to the extremes of the Union has been argued from the gentleman never having seen a note of the present Bank of North America in Georgia; he therefore concludes that bank has never been of any service to her agricultural interests. Mr. B. said that he drew very different conclusions from this fact. He supposed that by means of the bank the traders with Georgia had been enabled to send her the precious metals, while the bank paper had answered their purposes nearer home, where it circulated with undoubted credit. He instanced a case of a Philadelphia merchant, who was possessed of £100 in gold, and £100 credit at the bank; the merchant wanted £100 worth of rice of a Georgia planter, and the like value in flour of a Pennsylvania farmer. When he purchased the one of the Georgian, he could safely pay him the whole in gold, while he found the Pennsylvanian would as readily receive the bank paper for his flour; but had there been no bank, he could have purchased but £50 worth of each, and the Georgia and Pennsylvanian both would have gone without a market for the residue. In short, the whole Union may be likened to the body and limbs; you cannot aid or comfort one but the other must be likewise benefited. He said it was, however, difficult and impracticable to show that every measure adopted by the Government should have an effect perfectly equal over so extensive a country as that of the United States; it was sufficient if, upon the whole, the measures of Government, taken all together, produced the desired equality. The last objection was, that by adopting this bill we exposed the measure to be considered and defeated by the Judiciary of the United States, who might adjudge it to be contrary to the constitution, and therefore void; and not lend their aid to carry it into execution. This, he alleged, gave him no uneasiness. He was so far from controverting this right in the Judiciary, that it was his boast and his confidence. It led him to greater decision on all subjects of a constitutional nature, when he reflected that if, from inattention, want of precision, or any other defect, he should do wrong, that there was a power in the Government which could constitutionally prevent the operation of such a wrong measure from affecting his constituents. He was legislating for a nation, and for thousands unborn; and it was the glory of the constitution that there was a remedy even for the failures of the supreme Legislature itself. Upon the whole, then, he said, that on taking the power in question in every point of view, and giving the constitution the fullest consideration, under the advantage of having the objections placed in the strongest point of light by the great abilities of the gentlemen in the opposition, he was clearly in favor of the bill; as to its expediency, there could be little doubt in the minds of any gentleman; and unless more conclusive arguments could be adduced to show its unconstitutionality, he should in the end vote for passing the bill. SATURDAY, February 5. _Bank of the United States._ The House resumed the consideration of the bill for incorporating the Bank of the United States. The question being on the passage of the bill, Mr. SMITH observed, that he considered it his duty to offer the reasons which should influence him in giving his vote on this occasion. He had wished amendments to the bill, as some parts of it, he confessed, did not perfectly please him; but his wishes having been overruled, the question now is, whether the bill shall pass? Though he came southward of the Potomac, the principle of the bill met his approbation. It would be a deplorable thing if this Government should enact a law subversive of the constitution, or that so enlightened a body as the Senate of the United States should, by so great a majority as were in favor of this bill, pass a law so hostile to the liberties of this country, as the opposition to this measure have suggested the bank system to be; and it would be very extraordinary if an officer of this Government who has produced a performance explanatory of the constitution, of such celebrity as to be resorted to as an authority, should be so inconsistent with himself as to propose a law entirely subversive of the principles laid down in his able defence of the constitution. He then adverted to the objection drawn from that article of the constitution, that no preference shall be given to one port over another. He showed that the clause was inserted for a particular purpose, and could not be cited as a rule not to be deviated from, as a preference was and must necessarily be given to one port over another. He produced numerous instances in point. In consequence of various clauses in the revenue laws, general regulations sometimes operate partially, and commercial arrangements, apparently unequal, produce the good of the community at large. In reference to construing the constitution, he observed, that the present moment, when the powers of the Government were assailed from various quarters, he conceived the most improper to contract these powers. The right to construe the constitution he argued from the principles advanced by Mr. MADISON, in the debate on the power of removability, and read sundry observations from _Lloyd's Register_, made by that gentleman, corroborative of this sentiment. Those arguments, he conceived, applied very aptly to the present subject. Matters of a fiscal nature necessarily devolve on the General Government, and he urged that every power resulting from the acknowledged right of Congress to control the finances of this country must be as necessarily implied as in the case of the power of removability. He then alluded to the expediency of a National Bank. The Secretary gave notice, in his first report, that this plan was in contemplation. Nothing was ever read with greater avidity; and though it is now more than a year since this intimation was given, yet no objections have been offered against it either by the States or by individuals--even the State of North Carolina has not mentioned it. [Here Mr. BLOODWORTH (if the reporter did not misunderstand) informed Mr. SMITH that the report had not been seen by the Legislature of North Carolina.] Mr. SMITH said he was sorry for it--and then proceeded to notice some partial quotations, made by Mr. JACKSON, from _Dr. Smith's Wealth of Nations_, against bank systems. He said, he could have wished the gentleman had been more copious in his quotations from that author; if he had, he would have found that that author has fully demonstrated their utility. He noticed the divisions of opinions on the subject of a National Bank in the city of Philadelphia. He supposed ideas of personal advantages induced these opposing sentiments. He, however, thought this subject should be taken up altogether on general principles; and even if its immediate influence should not extend to the extremes of the Union, if the establishment promises a general preponderating advantage, local considerations must be considered in a secondary point of view. The principal inquiry is, will the institution facilitate the management of the finances? This, he thought, had been made apparent. This is the opinion of the Secretary of the Treasury, after due and mature consideration of the subject; and he certainly enjoys the best means of forming an opinion; he is at the head of the Fiscal Department, and deservedly enjoys the public confidence. Very little has been offered to disprove his sentiments on this part of the question, and the inexpediency of the measure should be clearly proved before the plan is rejected; for an officer who deservedly enjoys the public confidence is entitled to the support of the Legislature in those plans which are expedient and constitutional. Mr. S. mentioned instances in which Congress exercised power by implication, and observed, that this was necessary to the execution of the duties which devolve on the Government by the constitution. The power to establish a National Bank must reside in Congress, for no individual State can exercise any such power. The right of no particular State is therefore infringed by the institution. It had repeatedly been said, that Philadelphia would derive peculiar advantages from the Bank of the United States, but, he said, if the present plan should fail, it was a question whether the stockholders of the Bank of North America would not derive greater advantages from the necessity which, in that case, Government would be under of resorting to them for loans. The institution, as before observed, is founded on general principles, and will undoubtedly, in its operations, prove of general utility. Mr. STONE said, if, upon questions like the present, he had given pain to members he regarded, they might be assured the pain was reciprocal. Let us cherish mutual toleration. We might conceive that each pursued the system which he advocated from the purest motives. We differ in our ideas of Government, and our sense of the sacredness of the written compact. We varied widely in our opinions of the direction of this Government. The great lesson of experiment would show who is right; but we are influenced in our habits of thinking by our local situations, and, perhaps, the distinct interests of the States we represent. He observed, that upon the present occasion, the opinions respecting the constitution seem to be divided by a geographical line, dividing the continent. Hence it might be inferred, that other considerations mixed with the question; and it had been insinuated that it was warped by the future seat of Government. But other causes may be assigned for the diversity of sentiment--the people to the eastward began earliest in favor of liberty. They pursued freedom into anarchy--starting at the precipice of confusion, they are now vibrating far the other way. He said, that all our taxes are paid by the consumers of manufactures; those taxes are all bounties upon home manufactures. The people to the eastward are the manufacturers of this country; it was no wonder that they should endeavor to strengthen the hands of a Government by which they are so peculiarly benefited. It is a fact that the greatest part of the Continental debt has travelled eastward of the Potomac. This law is to raise the value of the Continental paper. Here, then, is the strong impulse of immediate interest in favor of the Bank. He took notice of the distinction made by the plan of the bill, between Continental and State paper. The State paper, on account of partial payments of interest, still remained in the respective States. But this could not, by the present system, be subscribed; so that the Southern States were deprived of the advantage that might have been given to the only paper they have. But if gentlemen charge us with defending the seat of Government, let them remember that this betrays consciousness of an attack. If they believe that this scheme tends to break the faith of the Union pledged to the Potomac, it is no wonder they suppose we oppose it upon that ground. He would not have mentioned this subject, had it not been hinted at. But let the whole of it come forth; let gentlemen consult their own bosoms; let the public decide the truth of his observations. He hoped he should not be suspected of any bias. That so uniform had been his conduct upon all questions, turning upon principles similar to the present, that every member in the House, he believed, had conjectured rightly of the side he would take, before he had uttered a word upon the subject, When implication first raised its head in this House, he started from it as a serpent which was to sting and poison the constitution. He felt in unison with his country. The fears, the opinions, the jealousies of individuals and of States, had been explained by a gentleman from Virginia, (Mr. MADISON.) He should only remark, that all those who opposed the Government dreaded this doctrine; those who advocated it, declared that it could not be resorted to; and all combined in opinion that it ought not to be tolerated. Never did any country more completely unite in any sentiment than America in this, "that Congress ought not to exercise, by implication, powers not granted by the constitution." And is it not strange? For the admission of this doctrine destroys the principle of our Government at a blow; it at once breaks down every barrier which the Federal constitution had raised against unlimited legislation. He said, that necessity was the most plausible pretext for breaking the spirit of the social compact, but the people of this country have anticipated that pretext. They have said to the Ministers of this country, "we have given you what we think competent powers, but if experience proves them inadequate, we will enlarge them; but, in the mean time, dare not usurp those which we have reserved." It is agreed on all hands, that the power to incorporate the subscribers to a banking company, is not expressly granted, and although gentlemen have agreed that it is implied--that it is an incident, that it is a means for effectuating powers expressly granted, yet they are not agreed as to the particular power to which this is an incident. They admit, that the sweeping clause in the constitution confers no additional power. But if he understood the gentlemen, several of them were of opinion that all governments, instituted for certain ends, draw to them the means of execution as of common right. This doctrine would make ours but a short constitution. [Here he read the preamble and then said:] Here is your constitution! Here is your bill of rights! Do these gentlemen require any thing more respecting the powers of Congress, than a description of the ends of government? And if, of right, they can carry these into effect, will they regard the means, though they be expressly pointed out? But I would ask if there is any power under heaven which could not be exercised within the extensive limits of this preamble? The Convention might have stopped here; and there was no need, according to the doctrine of the gentleman, to point out any of the means for the ends mentioned in the preamble. That portion of the constitution which by all America has been thought so important, according to their logic, would become a dead letter; but the preamble, in fair construction, is a solemn compact, that the powers granted shall be made use of to the ends thereby specified. He then reprobated, in pointed terms, the latitude of the principles premised. He said the end of all government is the public good; and if the means were left to legislation, all written compacts were nugatory. He observed, that the sober discretion of the Legislature, which, in the opinions of gentlemen, ought to be paramount, was the very thing intended to be curbed and restrained by our constitution. He then declared, that our form of government not only pointed out the ends of government, but specified the means of execution. He said, we may make war--this would draw to it the power of raising an army and navy, laying taxes, establishing a judiciary, &c. But the spirit of the constitution, in this respect, had been well explained by Mr. MADISON, and he should not recapitulate. He said, a gentleman from South Carolina (Mr. SMITH) had remarked that all our laws proceeded upon the principle of expediency--that we were the judges of that expediency--as soon as we gave it as our opinion that a thing was expedient, it became constitutional. What then remains of your constitution, except its mode of organization? We may look into it to refresh our memories respecting the times, places, and manner of composing the Government; that, as to the powers of Congress, were he of that gentleman's opinion, he would never look into it again. Gentlemen see the difficulties of their theories, and are obliged to confess that these incidental powers are not easily defined. They rest in the sober discretion of the Legislature. One gentleman (Mr. AMES) has said, no implication ought to be made against the law of nature, against rights acquired, or against power pre-occupied by the States; that it is easier to restrain than to give competent powers of execution. Now these notions are hostile to the main principle of our Government, which is only a grant of particular portions of power, implying a negative to all others. It has been shown that the ends of government will include every thing. If gentlemen are allowed to range in their sober discretion for the means, it is plain that they have no limits. By the cabalistic word _incident_, your constitution is turned upside down, and instead of being a grant of particular powers, guarded by an implied negative to all others, it is made to imply all powers. But, strange to tell, America forgot to guard it by express negative provisions. Is there any difference in effect between lodging general powers in a government, and permitting the exercise of them by subtle constructions? He said there was a difference. In the one case the people fairly gave up their liberty, and stood prepared; in the other, they were unexpectedly tricked out of their constitution. The preceding remarks showed how dangerous is the doctrine of implication, and upon what small data ingenuity can raise the most dangerous superstructure. He should now take a view of these precedents, in the former and present Congress, which are relied on to justify the present measure. 1st. The Bank of North America. Here he stated the distressful and critical situation of America at the period of its establishment; he remarked, that it was at the time of the declension of the Continental money. He showed that there were no powers in the Confederation to which (even according to the reasoning of the other side) this power could be incidental, but what required the vote of nine States; that the ordinance passed by a vote of seven States, which showed that necessity alone gave birth to that measure. He showed the dissimilarity of the situations of the former and this Congress, and the difference in their powers, and, consequently, in the dangers to be apprehended from the encroachment of either. 2d. The redemption of our prisoners at Algiers. This comes within the power to regulate trade. If, said he, we are not capable of redeeming, by the best means in our power, our citizens, our trade may be entirely ruined; and hence, the law which would be made for their redemption would be necessary and proper. But, by the constitution, the Executive may make treaties; these may be general, or for a particular object, and the Legislature may effectuate them by grants of money. 3d. We have bought certificates, and not destroyed them. This, they say, is implied from the power of paying the debts. He asked if, before the purchase, the certificates were debts due from the United States? And demanded, if, by the purchase, they were divested of that quality? In my judgment, when a debt is fairly cancelled, it is as much like a payment as need be. 4th. We had no right, except by implication, to give a salary to the Vice President. He had voted against the salary, and had been for a _per diem_ allowance, because he thought the Vice President was viewed by the constitution only as the President of the Senate. But this example fails most palpably, as Congress, in the compensations, are not confined by the constitution either to a particular sum or mode of payment. 5th. Congress have made corporations, and exercised complete legislation in the Western Territory. He said, to answer this case, nothing more was necessary than to read the clause in the constitution which gives to Congress expressly the power to make all the rules and regulations for them. It seemed to him as if gentlemen were inverting the order of things, by making powers where there were none, and attempting to prove express grants to the implications. 6th. Our regulations respecting freighters and owners, and between captains and seamen. He had not those regulations correctly in his memory, but he believed them proper and necessary regulations of commerce. 7th. It has been said we have exclusive jurisdiction in places belonging to Congress, and within the ten miles square. We could erect a bank in any of those places; its influence would extend over the continent; the principle upon which we founded this power could not be confined to a particular time or a spot of land. Gentlemen ridicule the idea that the exercise of a pervading influence and a general principle should be limited by any particular number of years, or be confined within a fort. He said, the power of exclusive legislation in those places was expressly granted, and, under its influence, the Congress might exercise complete and exclusive legislation within those limits; that the power was confined to the places. But if the general powers of this constitution are to be governed by the same rules of construction, and we are to have no regard to place, it follows that Congress can exercise exclusive legislation over this continent. He was astonished at this doctrine. It would be equally reasonable to say, that France, because within the limits of her own dominions, and over her own property, she exercised exclusive legislation, that hence she had a right to legislate for the world. 8th. The power of removal of officers by the President alone. He said, it was known he had opposed that doctrine. He left it to be defended by those who had voted for it. But he hoped Mr. Smith, of South Carolina, and some other gentlemen, who had opposed it, would review the arguments they had used upon that occasion. He observed, after taking a view of these precedents on the danger of laying down improper principles in legislation, how eagerly men grasped at the slightest pretexts for exercise of power. He shuddered to think what a broad and commanding position this Bank will form for further encroachments. A gentleman from Massachusetts (Mr. SEDGWICK) has said, that whenever a power is granted, all the known and usual means of execution are always implied. The idea had been properly examined by Mr. GILES, but he would ask, if incorporating the subscribers to a bank was the known and usual means of borrowing money, especially when the subscribers were not obliged to loan; or of collecting taxes, when no taxes were levied on the bank. But gentlemen tell us, that if we tie up the constitution too tightly, it will break; if we hamper it, we cannot stir; if we do not admit the doctrine, we cannot legislate at all. And with a kind of triumph, they say that implication is recognized by the constitution itself in the clause wherein we have power to make all laws, to carry, &c. He said, he was ready to meet the gentlemen upon this ground. This clause was intended to defeat those loose and proud principles of legislation which had been contended for. It was meant to reduce legislation to some rule. In fine, it confined the Legislature to those means that were necessary and proper. He said, it would not be pretended that it was necessary and proper for the collection of taxes. Indeed, one gentleman (Mr. AMES) had attempted to show that the payments in specie could not be made, if by chance a great quantity of debt suddenly accumulated in a particular place. But it might be remembered, that this necessity, if it arrived, was created by the Legislature, and that would be strange reasoning which broke a good constitution to mend a bad law. No taxes are to be collected by this bill. It would not be necessary and proper as a means of borrowing money, because, first, we do not want to borrow money, and, if we did, this law, though it may be the probable, is not the necessary mean; for if it was the interest of the stockholders, they might, and he believed would, refuse to loan. He said, that the institution might be defended upon more plausible grounds, if the Bank had been taxed; or if a condition to loan money to the public had been part of the plan. Upon what ground, then, do gentlemen stand? They can only say, that they have implied a great and substantive power in Congress, which gives to Government, or to individuals, the influence of fifteen millions of dollars, irrevocably, for twenty years, with a power of making by-laws, &c., because there is a probability that this institution may be convenient and agreeable in the operations of Government. He asked, upon parallel principles, what might Congress not do? He said, that the gentleman from Virginia, (Mr. MADISON,) pursuing the doctrine into all the forms in which it might appear, had struck upon several cases which were very pointed--an incorporation of manufacturers with exclusive privileges; merchants with the same; a national religion. This a gentleman (Mr. AMES) has said was unfair and extravagant reasoning; and yet, in five minutes, the gentleman's own reasoning led him to ask, with warmth, if Congress could not join stocks with a company to trade to Nootka? And he condescended to doubt, if the privileges given to such a company might not be exclusive. He saw clearly, himself, that his theory led to the latter conclusion; for if expediency, if convenience, if facility, if fears of war, if preparations for events which might never happen, can justify an incorporation upon the present plan, the same suggestions, the same logic, will legalize incorporations with exclusive privileges. The deductions of the gentleman from Virginia are sound and right, and cannot be fairly controverted. Congress may then do any thing. Nay, if the principles now advocated are right, it is the duty of the Legislature of the Union to make all laws; not only those that are necessary and proper to carry the powers of the Government into effect, but all laws which are convenient, expedient, and beneficial to the United States. Then where is your constitution! Are we not now sitting, in our sober discretion, a General Government, without the semblance of restraint? Yes, said he, we have still a constitution, but where is it to be found? Is it written? No. Is it among the archives? No. Where is it? It is found in the sober discretion of the Legislature--it is registered in the brains of the majority! He proceeded. I say there is no necessity, there is no occasion, for this Bank. The States will institute banks which will answer every purpose. But a distrust of the States is shown in every movement of Congress--will not this implant distrust also in the States? Will you gain by this contest? This scheme may give, and I am convinced will give, partial advantages to the States. In the fair administration of our Government, no partial advantages can be given; but, by this bill, a few stockholders may institute banks in particular States, to their aggrandizement and the oppression of others. This Bank will swallow up the State banks; it will raise in this country a moneyed interest at the devotion of Government; it may bribe both States and individuals. He said, gentlemen asked who would be offended or hurt by this plan? Have we heard any complaints against it? Have the newspapers reprobated it? These questions had no influence on his mind. He said it was one of those sly and subtle movements which marched silently to its object; the vices of it were at first not palpable or obvious; but when the people saw a distinction of banks created--when they viewed with astonishment the train of wealth which followed individuals, whose sudden exaltation surprised even the possessors--they would inquire how all this came about? They will then examine into the powers by which these phenomena have arisen, and they will find--they will reprobate the falsehood of the theories of the present day. He said, that gentlemen had told us of the sudden irruptions of enemies. When those necessities arrive, it is time enough to make use of them to break your constitution. But, gentlemen say, upon emergencies the Bank will loan money. We differ in opinion. I think when we want it most, the Bank will be most unable and unwilling to lend. If we are in prosperity, we can borrow money almost any where; but in adversity, stockholders will avoid us with as much caution as any other capitalists. But a gentleman (Mr. AMES) tells us not to be alarmed, the Bank will not eat up liberty--he said he was not afraid. He was not under any apprehensions that all the little influence that Congress possessed would destroy the great spirit of American liberty. The body of the people would laugh at and ridicule any attempt to enslave them; but a conduct which had that tendency might arouse alarming passions. He said, there existed at this moment ill-blood in the United States, which to quiet he would readily agree to enter into a foreign war. America with us, we might defy the world. There was but one people he was afraid of offending. This was America. He was not afraid of foreign enemies, but the resentment of our own country is always a subject of serious apprehension. He observed, that there were other parts of this important and diffusive subject which he might have touched, but he had fatigued himself and the House. Mr. SMITH (of South Carolina) said, as he had been greatly misunderstood by the gentleman last up, he wished to explain the position he had laid down. He had never been so absurd as to contend, as the gentleman had stated, that whatever the Legislature thought expedient, was therefore constitutional. He had only argued that in cases where the question was, whether a law was necessary and proper to carry a given power into effect, the members of the Legislature had no other guide but their own judgment, from which alone they were to determine whether the measure proposed was necessary and proper to carry the powers vested in Congress into full effect. If, in such cases, it appeared to them, on solemn deliberation, that the measure was not prohibited by any part of the constitution, was not a violation of the rights of any State or individual, and was peculiarly necessary and proper to carry into operation certain essential powers of the Government, it was then not only justifiable on the part of Congress, but it was even their duty to adopt such measure. That, nevertheless, it was still within the province of the Judiciary to annul the law, if it should be by them deemed not to result by fair construction from the powers vested by the constitution. MONDAY, February 7. _Bank of the United States._ The House resumed the consideration of the bill for incorporating the Bank of the United States. The question being on the passage of the bill, Mr. GILES.--In the course of discussing the present important question, it has been several times insinuated that local motives, and not a candid and patriotic investigation of the subject upon its merits, have given rise to that difference of opinion which has been heretofore manifested in this House. I shall not examine the truth of this observation, but merely remark, that the causes which may have produced the arguments against the proposed measure, whatever they may be, can neither add to, nor take from, their merit or influence, and, of course, the insinuations might have been spared without injury to the subject; but so far as the observation may have been intended to apply to myself, I can truly say, that if a bias were to influence my conduct, it would rather direct it to favor, than to oppose the proposed measure. This bias would arise from two causes: the one from the respect which I entertain for the judgments of the majority who advocate the measure; the other of a more serious nature. I have observed with regret a radical difference of opinion between gentlemen from the Eastern and Southern States, upon the great Governmental questions, and have been led to conclude, that the operation of that cause alone might cast ominous conjecture on the promised success of this much valued Government. Mutual concessions appear to be necessary to obviate this effect, and I have always been pleased in manifesting my disposition to make advances; but from the most careful view of the arguments in favor of the proposed measure considered under this impression, they do not seem to me sufficient to establish the propriety of its adoption, and I am therefore impelled, by the joint influence of duty and opinion, to be one in the opposition. A gentleman from Massachusetts (Mr. AMES) prefaced his observations with this remark, that it is easier to point out defects and raise objections to any proposed system, than to defend it from objections, and prove its affirmative propriety, and warned the House against the effects of arguments of this nature, urged in opposition to the measures now under consideration. I agree with the gentleman in this idea in general, but we should reflect that in the present case the address of the arguments in favor of the measure is made to one of the strongest affections of the human mind, the love of dominion; and hence we may justly conclude, that they will be received and relished with their full and unabated influence. This reflection appears to me to be at least a counterpoise to that remark. The advocates of this bill have been called on, and I conceive with propriety, to show its constitutionality and expediency, both of which have been doubted by those of the opposition. In support of the first position, a multitude of arguments have been adduced, all of which may be reducible to the following heads; such as are drawn from the constitution itself; from the incidentality of this authority to the mere creation and existence of government; from the expediency of the measure itself; and from precedents of Congress; to which may be added a similar exercise of authority by Congress, under the former Confederation. Observations arising from the constitution itself, were of two kinds. The right of exercising this authority is either expressed in the constitution, or deducible from it by necessary implication. One gentleman only, from Massachusetts, (Mr. SEDGWICK,) has ventured to assert, that, discarding the doctrine of implication, he could show that the right to exercise the authority contended for was expressly contained in the constitution. This, I presume, must have been a mistake in language, because the difference between an express and an implied authority appears to me to consist in this--in the one case, the natural import of the words used in granting the authority would of themselves convey a complete idea to the mind of the authority granted, without the aid of argument or deduction; in the other, to convey a complete idea to the mind, the aid of argument and deduction is found necessary to the usual import of words used; and that gentleman proceeded with a labored argument to prove, that the authority was expressly granted, which would have been totally useless, if his assertion had been just. [Mr. SEDGWICK rose to explain; he never conceived the authority granted by the express words of the constitution, but absolutely by necessary implication from different parts of it.] I shall not contend as to the assertion, but shall proceed to consider the arguments in favor of the measure upon the doctrine of implication; which, indeed, are those only which deserve consideration. In doing this, I shall consider the authority contended for to apply to that of granting charters to corporations in general, for I do not recollect any circumstance, and I believe none has been pretended, which could vary this case from the general exercise of that authority. To establish the affirmative of this proposition, arguments have been drawn from the several parts of the constitution; the context has been resorted to. "We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity," &c. It has been remarked, that here the ends for which this Government was established are clearly pointed out; the means to produce the ends are left to the choice of the Legislature, and that the incorporation of a bank is one necessary mean to produce these general ends. It may be observed, in reply, that the context contemplates every general object of Government whatever; and if this reasoning were to be conclusive, every object of Government would be within the authority of Congress, and the detail of the constitution would have been wholly unnecessary, further than to designate the several branches of the Government which were to be intrusted with this unlimited, discretionary choice of means, to produce these specified ends. The same reasoning would apply as forcibly to every clause of the constitution, restraining the authority of Congress to the present case, or to any one in which the constitution is silent. The only candid construction arising from the context appears to me to be this; it is designed, and it is the known office of every member to point out the great objects proposed to be answered by the subsequent regulations of which the constitution is composed. These regulations contain the means by which these objects are presumed to be best answered. These means consist in a proper distribution of all Governmental rights between the Government of the United States and the several State governments, and in fixing limits to the exercise of all authorities granted to the Government of the United States. The context, therefore, gives no authority whatever, but only contemplates the ends for which certain authorities are subsequently given. Arguments drawn from this source appear to be ineffectual in themselves, and the reliance of gentlemen upon them indicates a suspicion and distrust of such as may be drawn from other parts of the constitution. The advocates of the bill have turned away from this context, and have applied to the body of the constitution in search of arguments. They have fixed upon the following clauses, to all or some one of which they assert the authority contended for is clearly incidental; the right to lay and collect taxes, &c., &c.; to provide for the common defence and general welfare, &c.; to borrow money, &c.; to regulate commerce with foreign nations, &c. The bill contemplates neither the laying nor collecting taxes, and, of course, it cannot be included in that clause; indeed, it is not pretended, by the bill itself, to be at all necessary to produce either of those ends; the furthest the idea is carried in the bill, is, that it will tend to give a facility to the collection. The terms "common defence and general welfare" contain no grant of any specific authority, and can relate to such only as are particularly enumerated and specified. "To borrow money." Gentlemen have relied much upon this clause; their reasoning is, that a right to incorporate a bank is incidental to that of borrowing money, because it creates the ability to lend, which is necessary to effectuate the right to borrow. I am at a loss to discover one single relation between the right to borrow, and the right to create the ability to lend, which is necessary to exist between principal and incident. It appears to me that the incidental authority is paramount to the principal, for the right of creating the ability to lend is greater than that of borrowing from a previously existing ability. I should, therefore, rather conclude that the right to borrow, if there be a connection at all, would be incidental to the right to grant charters of incorporation, than the reverse of that proposition, which is the doctrine contended for by the advocates of the measure. The same reasoning which would establish a right to create the ability to lend, would apply more strongly to enforce the will after the ability is created; because the creator would have a claim of gratitude at least upon the created ability, which if withheld, perhaps, with justice might be insisted on. "To regulate commerce with foreign nations." This is by no means a satisfactory ground for the assumption of this authority; for if it be deemed a commercial regulation, there is a clause in the constitution which would absolutely inhibit its exercise. I allude to that clause which provides that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; and it seems to be admitted, that one principal effect to be produced by the operation of this measure will be to give a decided commercial preference to this port over every other in the United States. Gentlemen finding it difficult to show that necessary relation and intimate connection between the authority contended for, and any one of the specified authorities before mentioned, which would be essential to the establishment of their doctrine, have referred to what has been generally called the sweeping clause, and have made deductions from the terms "necessary" and "proper;" they have observed that certain specified authorities being granted, all others necessary to their execution follow without any particular specification. This observation may in general be true, but its fallacy here consists in its application to this particular case. It cannot be applied until the exercise of this authority be proved to be necessarily connected with some one of the previously enumerated authorities, and here the argument, as well as the fact, fails. The authority contended for seems to me to be a distinct substantive branch of legislation, and, perhaps, paramount to any one of the previously enumerated authorities, and should therefore not be usurped as an incidental subaltern authority. I am confirmed in this opinion from the indistinct, confused conceptions of gentlemen who advocate the measure. They rely upon the incidentality of this authority to some one of those particularly specified, and yet have applied it as an incident to several distinct, unconnected subjects of legislation; and then, distrusting their own conclusions, or as if the inquiry would be too troublesome or minute, they leave this ground, and assert that it is incidental to the result of the whole combined specified authorities. Gentlemen must, therefore, view this right through different optics, at different times; or, what I rather believe to be the fact, they have no distinct view of it at all, the right having no existence. A gentleman from Massachusetts, (Mr. SEDGWICK,) finding the usual import of the terms used in the constitution to be rather unfavorable to the doctrines advanced by him, has favored us with a new exposition of the word "necessary." He says that "necessary," as applicable to a mean to produce an end, should be construed so as to produce the greatest quantum of public utility. I have been taught to conceive that the true exposition of a necessary mean to produce a given end was that mean without which the end could not be produced. The gentleman's reasoning, however, if pursued, will be found to teem with dangerous effects, and would justify the assumption of any given authority whatever. Terms are to be so construed as to produce the greatest degree of public utility. Congress are to be the judges of this degree of utility. This utility, when decided on, will be the ground of constitutionality. Hence any measure may be proved constitutional which Congress may judge to be useful. These deductions would suborn the constitution itself, and blot out the great distinguishing characteristic of the free constitutions of America, as compared with the despotic Governments of Europe, which consist in having the boundaries of governmental authority clearly marked out and ascertained. The exclusive jurisdiction over ten miles square has been adverted to by one gentleman (Mr. AMES) as a specified authority, to which the one contended for is suggested to be incidental. He has reasoned in this manner: Congress possess jurisdiction over ten miles square, &c.; Congress may therefore establish a bank within the ten miles square, and, as principle is not applicable to place, Congress may exercise the same authority any where else. This seems to me to be an ingenious improvement upon sophistical deduction; the gentleman, however, should have reflected that the ground upon which he built the right to exercise this authority was that of exclusive jurisdiction, and to extend the principle it is necessary to extend the right of exclusive jurisdiction; without this, the basis of his argument fails, and the superstructure, however beautiful, must follow; for the principle, if at all deducible from that source, is expressly confined to place, and cannot operate beyond it. I shall now consider the second resource, whence the constitutional right of exercising the proposed authority is derived; its incidentality to the mere creation and existence of government. It has been observed, that in all governments there are certain rights tacitly granted, and certain other rights retained; that it is impossible, in framing a constitution, to enumerate every minute governmental right, and that such an attempt would be chimerical and vain. And hence the incidentality of this authority to the mere existence of government is inferred. These observations seem to me to apply to a government growing out of a state of society, and not to a government composed of chartered rights from previously existing governments, or the people of those governments. I have been taught to consider this as a Federal, not as a consolidated Government, and am not prepared or disposed at present to relinquish that idea. A gentleman from New York (Mr. LAWRENCE) has remarked, that the Government is consolidated _quo ad_ the powers granted, and of course _quo ad_ their incidents; but he should first have shown that the authority contended for is one of those granted, or incidental to some one of them, before the application can be made. The observation can have no tendency to establish either of those positions. What effect would this doctrine, if admitted, have upon the State governments? And how would it be relished by them? Their dignity and consequence will not only be prostrated by it, but their very existence radically subverted. A third resource of deducing this constitutional authority is resorted to--the expediency of the proposed measure itself. I presume the great object of the constitution was to distribute all governmental rights between the several State Governments and the Government of the United States; the expediency, therefore, of the exercise of all constitutional rights, as they relate to State or General Governments, is properly contemplated and decided by the constitution, and not by the Governments among which the distribution is made. A gentleman from South Carolina (Mr. SMITH) has said, that the expediency and constitutionality of the proposed measure cannot be considered separately, because the constitutionality grows out of the expediency. This is but candidly unveiling the subject of that sophistical mask which has been ingeniously thrown over it by some gentlemen; for all the arguments adduced in favor of the measure, from whatever source they arise, if pursued, will be found to rush into the great one of expediency, to bear down all constitutional provisions, and to end themselves in the unlimited ocean of despotism. Several gentlemen have said, that this authority may be safely exercised, since it does not interfere with the rights of States or individuals. I think this assertion not very correct; if the States be constitutionally entitled to the exercise of this authority, it is an intrusion on their rights to do an act which would eventually destroy or impede the freest exercise of that authority; for it is totally immaterial whether the effect be produced by the operation of this, or by an inhibition in express terms. The States may not only incorporate banks, but may of right prohibit the circulation of bank paper within their respective limits; the act, therefore, if it be intended to have an effectual operation, will certainly infringe this right, or exist at the mercy of the State governments. This reasoning, however, places the subject in another point of view a little singular. It contemplates the authority contended for as vacant ground, and justifies the tenure by the mere title of occupancy. In almost all the remarks in favor of the measure, gentlemen seem to have forgotten the peculiar nature of this Government. It being composed of mere chartered authorities, all authority not contained within that charter would, from the nature of the grant, have been retained to the granting party; and I will venture to assert, that this opinion was the _sine qua_ _non_ of the adoption and existence of this Government; but if this opinion had been doubtful, Congress themselves have made an express declaration in favor of this construction to the proposed amendments to the constitution. Gentlemen have inferred a constitutional right to exercise the authority contended for from a fourth resource--the former usages and habits of Congress. In affirmance of this argument, several acts of Congress have been referred to--the power of removal from office, the government of the Western Territory, the cession from North Carolina, the purchase of West Point, &c. I shall not examine into the propriety of these several acts, though I conceive it would not be difficult to show, that they differ materially, upon constitutional grounds, from the one now proposed. I shall only remark, that, if Congress have heretofore been in the usage and habit of disregarding and violating the constitution, it is high time that that habit and usage be corrected. I hope and trust that the people of the United States will not tamely see the only security of their rights and liberties invaded and violated, but also see one violation of it with impunity boldly urged as an argument to justify another. An instance of a similar exercise of authority by the Congress which existed under the former Confederation, has been mentioned in favor of its exercise by the present Congress. The argument has been, that as the powers of the present Congress are greater than those of the former Congress, and the former were competent to the exercise of this right, the present must be more so. It is to be remarked, that that act was the child of necessity, and that Congress doubted its legitimacy, and the act itself was never confirmed by a judicial decision; and it should be also remarked, that the same Congress did not pretend to possess the right to punish those who should counterfeit the paper of the Bank, and recommended it to the States to confirm the act which they had done, and to pass laws for the purpose of punishing those who should counterfeit the paper, and it is a little remarkable that this circumstance, which is one of the most essential to the existence and operation of this act, is withheld from our view. But as I think arguments drawn from this source wholly foreign to the subject, I shall make no further remark upon them. I shall now suggest a few observations respecting the expediency of the proposed measure. In doing this, I shall not say any thing as to the utility of banks in general, nor as to the effects of the banks of England, Scotland, Holland, &c. I possess not sufficient practical or theoretical knowledge to justify the inquiry; I shall only point out a few circumstances, which are peculiarly attached to the government we are now administering, which might vary the application of general rules, drawn from governments of a different nature, and which possess the unquestioned right of granting charters of incorporation. In the first place, the right of exercising that authority by the Government is at least problematical, it is nowhere granted in express terms; the Legislature, therefore, can have no competent security against a judicial decision but a dependent or a corrupt court. I presume that a law to punish with death those who counterfeit the paper emitted by the Bank will be consequent upon the existence of this act. Hence a judicial decision will probably be had of the most serious and awful nature; the life of an individual at stake on the one hand, an improvident act of the Government on the other. A distrust arising from this cause will for ever keep the Bank in jeopardy, and the very first trial of this nature will probably subject the Bank to a run which it will be unable to withstand; for all stockholders will require the greatest possible security for their money, and a distrust of such an institution will be its destruction. This observation seems to me to have peculiar force, from the great proportion of paper to that of gold and silver, upon which the Bank is proposed to be founded. The peculiar relation between the General and State Governments, will naturally produce a contest for governmental rights, until long experience shall settle the precise boundaries between them. The present measure appears to me to be an unprovoked advance in this scramble for authority, and a mere experiment how far we may proceed without involving the opposition of the State Governments. It should be remarked that this Government is in its childhood; it is therefore unfitted for such bold and manly enterprises, and policy would dictate that it should wait at least until it may have become more matured or invigorated. Two modes of administering this Government present themselves; the one with mildness and moderation, by keeping within the known boundaries of the constitution, the other, by the creation and operation of fiscal mechanism; the first will ensure us the affections of the people, the only natural and substantial basis of Republican Governments; the other will arise and exist in oppression and injustice, will increase the previously existing jealousies of the people, and must be ultimately discarded, or bring about a radical change in the nature of our Government. Having suggested these observations upon the measure in general, I shall now proceed to point out a few objections to the details of the bill. I think the authority given to the Bank to purchase and hold lands objectionable; in the first place I doubt the constitutional right of Congress to invest such an authority; the lands within the United States are holden of the individual States, and not of the United States; and that tenure appears to me to be the true ground upon which the right to exercise that authority grows. I believe it is admitted, that although Congress may naturalize a foreigner, they cannot authorize him to purchase lands; and I think the case at least as strong, when they first create an artificial person, and then invest the authority; besides, if we have any reference to the experience of other countries, we shall find it dangerous to allow incorporated bodies to hold lands at all. The exercise of that right produced great oppression in England, and nothing but the masterly activity of an absolute prince could apply a competent remedy. A gentleman from Massachusetts (Mr. SEDGWICK) has denied that the Bank is invested with this right. It is true it is confined to the mode of purchasing by mortgage, but that is the most effectual mode of purchasing, and the most ruinous to the landholder. I will merely mention one other objection without a comment--the authority given to make laws not contrary to law or its own constitution; but the most objectionable clause is that which limits its duration, and pledges the faith of the United States that no other bank shall be established in the mean time, however dangerous and offensive the present measure might prove in its operation, and whatever may be the utility and advantage in any other scheme of banking which experience may suggest. Such a stipulation cannot be justified but from the most pointed necessity, and from the maturest deliberation. When I search for the necessity of this measure, it escapes me; it is not pretended in the bill itself; the chief stimulus which I can discover to the existence of this measure, is to give artificial impulse to the value of stock. This is not a sufficient justification; the subject has not been sufficiently considered, and I therefore hope it may be postponed to some future session of Congress; many evils may be avoided by such a conduct, none can result from it. Mr. GERRY said, he should principally confine himself to the objections of the gentleman first up from Virginia, (Mr. MADISON,) not from a disrespect to the observations of other gentlemen in the opposition, but because he considered their arguments as grafts on the original stock of those urged by the gentleman alluded to, and if the trunk fell, its appendages must fall also. The objects of the bill were to render the fiscal administration successful, and to give facility to loans on sudden emergencies, and to benefit trade and industry in general; and that these were objects of high importance had not been denied, neither had it been asserted that they ought not, if possible, to be attained. It is objected, however, that the mode proposed by the bill is unconstitutional, and the bill itself defective. The mode proposed is a National Bank; to establish which he thought Congress were as competent as either House were to adjourn from day to day. It is said that Congress have no power relating to this subject, except what is contained in the clauses for laying and collecting taxes, imposts, excises, &c.; for borrowing money, and for making all laws necessary and proper for carrying these powers into effect; and that these do not authorize the establishment of a National Bank. To ascertain this, the gentleman from Virginia proposes a candid interpretation of the constitution, which we shall agree to, and he offers to assist us with his rules of interpretation, for his good intentions in doing which we give him full credit; but as he acknowledges that he has been long decided against the authority of Congress to establish a bank, and is therefore prejudiced against the measure; as his rules, being made for the occasion, are the result of his interpretation, and not his interpretation of the rules; as they are not sanctioned by law exposition, or approved by experienced judges of the law, they cannot be considered as a criterion for regulating the judgment of the House, but may, if admitted, prove an _ignis fatuus_ that may lead to destruction. We wish not, however, by establishing our own rules of interpretation, to enjoy the privilege which is denied to the gentleman, but will meet him on fair ground, by applying rules which have the sanction mentioned; and as the learned _Judge Blackstone_ has laid down such, it is presumed the gentleman from Virginia will not contend for a preference, or refuse to be tried by this standard. The Judge observes: "That the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made by signs the most natural and probable; and these signs are either the words, the context, the subject-matter, the effect and consequence, or the spirit and reason of the law." With respect to words, the Judge observes, that "they are generally understood in their usual and most ordinary signification, not so much regarding the grammar as their general and popular use." The gentlemen on different sides of the question do not disagree with respect to the meaning of the terms _taxes_, _duties_, _imposts_, _excises_, &c., or of _borrowing money_, but of the word _necessary_: and the question is, what is the general and popular meaning of this term? Perhaps the answer to the question will be truly this, that in a general and popular one the word does not admit of a definite meaning, but that this varies according to the subject and circumstances. With respect to the subject for instance, if the people, speaking of a garrison besieged by a superior force, and without provisions, or a prospect of relief, should say it was under the necessity of surrendering, they would mean a physical necessity, for troops cannot subsist long without provisions; but if speaking of a debtor, the people should say he was frightened by his creditor and then reduced to the necessity of paying his debts, they would mean a legal, which is very different from a physical necessity; for although the debtor, by refusing payment, might be confined, he would be allowed subsistence, and the necessity he was under to pay his debts would not extend beyond his confinement. Again, if it should be said that a client is under the necessity of giving to his lawyer more than legal fees, the general popular meaning of necessity would, in this instance, be very different from that in the other; the necessity would neither be physical nor legal, but artificial, or, if I may be allowed the expression, a long-robe necessity. The meaning of the word "_necessary_," varies also according to circumstances; for although Congress have power to levy and collect taxes, duties, &c., to borrow money, and to determine the time, quantum, mode, and every regulation necessary and proper for supplying the Treasury, yet the people would apply a different meaning to the word "necessary" under different circumstances. For instance, without a sufficiency of precious metals for a medium, laws creating an artificial medium would be generally thought necessary for carrying into effect the power to levy and collect taxes; but if there was a sufficiency of such metals, those laws would not generally be thought necessary. Again, if specie was scarce, and the credit of the Government low, collateral measures would be by the people thought necessary for obtaining public loans: but not so, if the case was reversed. Or, if part of the States should be invaded and overrun by an enemy, it would be thought necessary to levy on the rest heavy taxes, and collect them in a short period, and to take stock, grain, and other articles from the citizens without their consent, for the common defence; but in a time of peace and safety, such measures would be supposed unnecessary. Instances may be multiplied in other respects; but it is conceived that these are sufficient to show that the popular and general meaning of the word "necessary," varies according to the subject and circumstances. The second rule of interpretation relates to the _context_, and the Judge conceives that "if words are still dubious, we may establish their meaning by the context; thus the preamble is often called in to help the construction of an act of Parliament." The constitution, in the present case, is the great law of the people, who are themselves the sovereign Legislature, and the preamble is in these words: "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." These are the objects for which the constitution was established, and in administering it we should always keep them in view. And here it is remarkable, that although the common defence and general welfare are held up in the preamble among the primary objects of attention, they are again mentioned in the eighth section of the first article, whereby we are enjoined in levying taxes, duties, &c., particularly to regard the common defence and general welfare; indeed common sense dictates the measure; for the security of our property, families, and liberty--of every thing dear to us, depends on our ability to defend them. The means, therefore, for attaining this object, we ought not to omit a year, month, or even a day, if we could avoid it; and we are never provided for defence unless prepared for sudden emergencies. Should Government be surprised in this case, it would be as dishonorable as for a general to be surprised in a state of warfare, and the event to the community may be much more fatal. If provision then for sudden emergencies is indispensable, it must be evident that it will depend in a great measure on the ability of the Government to command, at all times, for this purpose, a sufficient sum of money, which is justly denominated the sinews of war; and how is this to be effected? By emissions of bills of credit? During the Revolution, bills of credit, it must be acknowledged, have done wonders; they have, in conflict with the banks, Treasury, and public credit of Great Britain, risen superior to them all, and have since died a natural death. We have honored them with a funeral pile; we now bid peace to their manes, and devoutly hope that bills of credit will for ever be extinct in the United States. Are we to depend, then, on taxes for commanding money in cases of urgent necessity? These, as has been shown by other gentlemen, will be too slow in their operations, unless, indeed, we should levy a tax for drawing into and locking up in the Treasury three or four millions of dollars; a law which would be universally considered as unnecessary and improper. By loans, and loans only, can provision be made for sudden emergencies; but if loans should be made previously to an emergency, the people would be unnecessarily burdened by the interest thereof, and most of the other evils would ensue that would arise from previous taxes; and if they were to be made at an emergency, without previous arrangements, of whom are we to borrow? Of individuals? These cannot be depended on, as has been fully proved by our own experience at the commencement of the Revolution. Are we to apply to the banks already established in the States for loans? These can no more be depended upon than individuals; for stockholders having not more attachment to Government than other citizens, would, in cases of public danger, attend to the preservation of their property by other means than loaning it to Government. And moreover, the united capitals of all the banks existing in the Union would be insufficient for Government, for they do not amount to a million and a half of dollars, and only a part in this could, in any case, be reasonably expected on loan. Are we to apply to foreign banks or individuals? These, as has been shown, are too remote; and if not, we have not been able, without the assistance of an ally, to obtain foreign loans during the war, and perhaps the power on whose assistance we may rely would be hostile to us. Such dependence, then, as has been stated, would necessarily leave us in a deplorable state; and it must be evident that a previous arrangement to aid loans in cases of sudden emergency is necessary and proper in the general and popular use of the term, inasmuch as any other measure that Congress can adopt would be inadequate to the purpose of common defence; and what previous arrangement can we make so proper as that of a National Bank? If gentlemen in the opposition know of any, let them produce it, and let the merits of it be investigated; for it is unreasonable to propose a rejection of this plan without producing a better. The plan proposed by the Secretary of the Treasury, which is now the subject of discussion, does honor, like all his other measures, to his head and heart; it will be mutually beneficial to the stockholders and to Government, and consequently so to the people. The stockholders by this plan will be deeply interested in supporting Government; because three-quarters of their capital, consisting of funded certificates, depend on the existence of Government, which therefore is the prop of their capital, the main pillar that supports the bank. Again, the credit of Government, which is immaterial to the other banks, is essential to the National Bank, for the annual interest of three-quarters of its capital, which must form a great share of its profits, will depend altogether on the credit of Government, and produce, on the part of the stockholders, the strongest attachment to it. On the other hand, it will be the interest of Government to support the Bank, as well on account of the benefits which the public will generally derive from the institution, and the profits arising from the shares of Government in the stock which will be hereafter noticed, as of the supplies of money which it will be for the interest of the Bank to furnish in cases of urgent necessity. Whenever these exist, Congress may lay a tax for supplying the Treasury, and anticipate it with certainty by means of the National Bank. It being then our duty to provide for the common defence in cases of emergency, the provision must evidently be made by taxes, loans, or by arrangements for obtaining the latter on the earliest notice; and previous taxes and loans being oppressive, improper, and unnecessary, the arrangements for aiding loans become indispensable, and a bank consequently necessary and constitutional. The third rule of the Judge, relative to the "subject-matter" of a law, it is unnecessary to apply, because the members agree in their ideas relative to the meaning of the terms taxes, duties, loans, &c. The fourth rule, which relates to "effects and consequences," is important; and here the learned Judge observes that "as to effects and consequences, the rule is, where the words bear none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them." In the present case, the gentlemen in the opposition generally, as well as the gentleman first up from Virginia, give the whole clause by which Congress are authorized "to make all laws necessary and proper," &c., no meaning whatever; for they say, the former Congress had the same power under the Confederation without this clause as the present Congress have with it. The _Federalist_ is quoted on this occasion, but although the author of it discovered great ingenuity, this part of his performance I consider as a political heresy. His doctrine, indeed, was calculated to lull the consciences of those who differed in opinion with him at that time; and having accomplished his object, he is probably desirous that it may die with the opposition itself. The rule in this case says, that where the words bear no signification, we must deviate a little; and as this deviation cannot be made by giving the words less than no meaning, it must be made by a more liberal construction than is given by gentlemen in the opposition. Thus their artillery is turned on themselves, for their own interpretation is an argument against itself. The last mentioned rule relates to the spirit and reason of the law, and the Judge is of opinion "that the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the Legislature to enact it". The causes which produced the constitution were an imperfect union, want of public and private justice, internal commotions, a defenceless community, neglect of the public welfare, and danger to our liberties. These are known to be the causes not only by the preamble of the constitution, but also from our own knowledge of the history of the times that preceded the establishment of it. If these weighty causes produced the constitution, and it not only gives power for removing them, but also authorizes Congress to make all laws necessary and proper for carrying these powers into effect, shall we listen to assertions that these words have no meaning, and that this constitution has not more energy than the old? Shall we thus unnerve the Government, leave the Union, as it was under the Confederation, defenceless against a banditti of Creek Indians, and thus relinquish the protection of its citizens? Or shall we, by a candid and liberal construction of the powers expressed in the constitution, promote the great and important objects thereof? Each member must determine for himself; I shall without hesitation choose the latter, and leave the people and States to determine whether or not I am pursuing their true interest. If it is inquired where we are to draw the line of a liberal construction, I will also inquire where the line of restriction is to be drawn? The interpretation of the constitution, like the prerogative of a sovereign, may be abused; but from hence the disuse of either cannot be inferred. In the exercise of prerogative the minister is responsible for his advice to his sovereign, and the members of either House are responsible to their constituents for their conduct in construing the constitution. We act at our peril; if our conduct is directed to the attainment of the great objects of Government, it will be approved, and not otherwise; but this cannot operate as a reason to prevent our discharging the trusts reposed in us. Let us now compare the different modes of reasoning on this subject, and determine which is right, for both cannot be. The gentleman from Virginia (Mr. MADISON) has urged the dangerous tendency of a liberal construction; but which is most dangerous, a liberal or a destructive interpretation? The liberty we have taken in interpreting the constitution, we conceive to be necessary, and it cannot be denied to be useful in attaining the objects of it; but whilst he denies us this liberty, he grants to himself a right to annul a part, and a very important part of the constitution. The same principle that will authorize a destruction of part, will authorize the destruction of the whole of the constitution; and if gentlemen have a right to make such rules, they have an equal right to make others for enlarging the powers of the constitution, and indeed of forming a despotism. Thus, if we take the gentleman for our pilot, we shall be wrecked on the reef which he cautions us to avoid. The gentleman has referred us to the last article of the amendments proposed to the constitution by Congress, which provides that the powers not delegated to Congress, or prohibited to the States, shall rest in them or the people; and the question is, what powers are delegated? Does the gentleman conceive that such only are delegated as are expressed? If so, he must admit that our whole code of laws is unconstitutional. This he disavows, and yields to the necessity of interpretation, which, by a fair and candid application of established rules of construction to the constitution, authorizes, as has been shown, the measure under consideration. The usage of Congress has also been referred to; and if we look at their acts under the existing constitution, we shall find they are generally the result of a liberal construction. I will mention but two. The first relates to the establishment of the Executive Departments, and gives to the President the power of removing officers. As the constitution is silent on this subject, the power mentioned, by the gentleman's own reasoning, is vested in the States or the people; he, however, contended for an assumption of the power, and when assumed, urged that it should be vested in the President, although, like the power of appointment, it was by a respectable minority in both Houses conceived that it should have been vested in the President and Senate. His rule of interpretation then was therefore more liberal than it is now. In the other case, Congress determined by law, with the sanction of the President, when and where they should hold their next session, although the constitution provides that this power should rest solely in the two Houses. The gentleman also advocated this measure, and yet appears to be apprehensive of the consequences that may result from a construction of the constitution which admits of a National Bank. But from which of these measures is danger to be apprehended? The only danger from our interpretation would be the exercise by Congress of a general power to form corporations; but the dangers resulting from the gentleman's interpretations, in the cases alluded to, are very different; for what may we not apprehend from the precedent of having assumed a power on which the constitution was silent, and from having annexed it to the Supreme Executive? If we have this right in one instance, we may extend it to others, and make him a despot. And here I think it necessary to declare, that such is my confidence in the wisdom, integrity, and justice of the Chief Magistrate, as that I should be at ease, if my life, liberty, and property were at his disposal; but this is a trust which I am not authorized to make for my constituents; and as his successors in office will possess equal powers, but may not possess equal virtues, caution with respect to them is necessary. Again, what may be the result of the precedent relating to the session of Congress? If we had a right by law to determine where the next Congress should hold their session, one Congress may oblige another to sit in Kentucky, or in the intended State Yazoo, under the protection of a Choctaw chief, or his Excellency, Governor Tallan. It must therefore be evident that the usage of Congress in both instances is against the gentleman, and that the dangers from the precedent of establishing a bank are comparatively small to those resulting from the other measures referred to. The gentleman from Virginia has endeavored to support his interpretation of the constitution by the sense of the Federal Convention; but how is this to be obtained? By applying proper rules of interpretation? If so, the sense of the Convention is in favor of the bill; or are we to depend on the memory of the gentleman for a history of their debates, and from thence to collect their sense? This would be improper, because the memories of different gentlemen would probably vary, as they had already done, with respect to those facts; and if not, the opinions of the individual members who debated are not to be considered as the opinions of the Convention. Indeed, if they were, no motion was made in that Convention, and therefore none could be rejected for establishing a National Bank; and the measure which the gentleman has referred to was a proposition merely to enable Congress to erect commercial corporations, which was, and always ought to be, negatived. The gentleman's arguments respecting the sense of the State Conventions have as little force as those relating to the Federal Convention. The debates of the State Conventions, as published by the short-hand writers, were generally partial and mutilated; in this, if the publications are to be relied on, the arguments were all on one side of the question; for there is not in the record, which is said to contain the Pennsylvania debates, a word against the ratification of the constitution; although we all know that arguments were warmly urged on both sides. The gentleman has quoted the opinions, as recorded in the debates of this State and North Carolina, of two of our learned judges; but the speech of one member is not to be considered as expressing the sense of a convention; and if it was, we have no record which can be depended on of such speeches. Indeed, had even this been the case, the Union was at that time divided into two great parties, one of which feared the loss of the Union if the constitution was not ratified unconditionally, and the other the loss of our liberties if it was. The object on either side was so important as perhaps to induce the parties to depart from candor, and to call in the aid of art, flattery, professions of friendship, promises of office, and even good cheer; and when these failed, the _Federal Bull_ was published, denouncing political death and destruction to anti-federal infidels. Under such circumstances, the opinions of great men ought not to be considered as authorities, and in many instances could not be recognized by themselves. Mr. G. then observing that the sense of the States respecting a bank would be best ascertained by their legislative acts, showed, from the journals of Congress, that when restrained by the Confederation from exercising any powers but what were expressly delegated, Congress had, without any authority, established a bank whose capital might extend to ten millions of dollars; and had not only pledged the faith of the Union not to erect any other, but had recommended it to the States to prohibit any State establishment of the kind, and had also determined that the bank bills should be receivable in the taxes and duties of every State. That the States did not remonstrate against, or tacitly acquiesce in, but actually supported the measures of Congress relative to the bank, whilst the war continued, and after the peace. That this was the strongest evidence the States could give that they thought the measure salutary, and had no objection to it on the ground of its being unconstitutional. He then urged, that if the States and the people at large had no objection to a bank in that case, they could not in this; and inquired whether there was any evidence of their disapprobation of such an institution in the debates of their Conventions or propositions for amendments? To this he answered in the negative, and urged, that whilst the Conventions were silent on the subject, and had no objections to such a measure, several of them had proposed amendments to the constitution for restraining Congress from establishing commercial corporations; which evinced their disapprobation of such institutions, and admitted at the same time, in some degree, the power of Congress, under the existing constitution, to form them. Mr. G. then showed, that as a monopoly had been urged as an objection to the bill, no such consequence could result from it; for the bill does not restrain State or private banks, or even individuals, from negotiations of a similar nature with those permitted to the stockholders; nor does it restrain the States from forming similar corporations. This plan has not a feature of monopoly, and the gentlemen who oppose it contend for a bank which, according to its original institution, was founded in monopoly. He then answered the arguments urged against the authority of Congress to enable corporations to hold lands, when they had no power themselves of purchasing and holding land; and showed, that although Congress are restrained from purchasing lands, (except in certain cases,) and from exercising over the same exclusive legislation, yet that they may hold lands obtained by execution, conquest, and by other means as well as by those clauses of the constitution which relate to lands now belonging to the Union; and that Congress had often invested others with powers which they themselves could not exercise. He then noticed the argument, that, by a law of Virginia, notes payable to the bearer, or order, would not circulate in that State, and observed that this law could not be supposed to extend to bank notes; and if it did, it would be null and void, because the constitution of the Union, and laws, made in pursuance thereof, were paramount to the laws and constitutions of the several States. Having considered the arguments against the constitutionality of the bill, he entered into the policy and utility of the measure. TUESDAY, February 8. _Bank of the United States._ The House resumed the consideration of the bill for incorporating the Bank of the United States. The question still being on the passage of the bill, Mr. VINING apologized for rising to offer his sentiments on this subject, which had been already so ably discussed; but considering the nature of the objections as arising from constitutional principles, it had acquired an importance which would justify his troubling the House with some remarks. He began by noticing the leading argument of Mr. MADISON respecting the sense of the Continental Convention on the power proposed to be exercised by Congress in this bill. He showed that the opinion of the gentleman, in this instance, was, if not singular, different from that of his contemporaries; at least a similar objection had not been started by those gentlemen of the Senate, who had been members of the Convention; but granting that the opinion of the gentleman from Virginia had been the full sense of the members of the Convention, their opinion at that day, he observed, is not a sufficient authority by which for Congress at the present time to construe the constitution. Mr. V., in explaining the powers proposed by the bill to be given to the corporation of the Bank, adverted to the particular power of "making rules and regulations not contrary to law." He showed that this term law means the common law; and alluded to the inquiry of Mr. MADISON, as to what law was intended by this clause, who, in answering his own question, said, "that if the laws of the United States were intended, the power contemplated was dangerous and unconstitutional, as those laws were very few in number." Mr. V. observed, that the restriction contended for by the gentleman as the result of his objection, would annihilate the most essential rights and privileges of the citizens of the United States. He then observed, a corporation is nothing more than constituting a body with powers to effect certain objects in a combined capacity, which an individual may do in his individual capacity, agreeable to the usage and customs of common law. Adverting to the act by which the United States became a free and independent nation, he said, from that declaration, solemnly recognized at home and abroad, they derive all the powers appertaining to a nation thus circumstanced, and consequently the power under consideration. He traced the origin of corporations to the time of Numa, the first of which was for agricultural purposes; they were afterwards extended to other objects; and from that day to this, all civilized and independent nations have been in the practice of creating them; and what do they amount to but this--enabling a number of persons, in a combined capacity, to do that to a more certain effect than an individual may do; but subject to the control of common law, in all its regulations and transactions. On the doctrine of construction, as applied to the constitution, he observed, that on some occasions the constitution is like the sensitive plant, which shrinks from the smallest touch; on others it is like the sturdy oak, which braves the force of thunder. He referred to the act containing the power of removability; in which the utmost latitude of construing the constitution was contended for and adopted; and, said he, the funding system cannot be defended on any other principle than of implication. He then inquired, of what right does this incorporation deprive a single citizen? And can an act possibly meet the disapprobation of a single person which does not infringe his rights, and which puts money into his pocket? I think not. He insisted that the power of Congress alone was equal to establishing a bank competent to creating a currency which shall pervade all parts of the Union; the paper of the State banks cannot circulate beyond the bounds of the particular States. From the restrictions to the Government contended for by the opposers of the bill, he compared the constitution to a horse finely proportioned in every respect to the eye, and elegantly caparisoned, but deficient in one, and the most essential requisite, that of ability to carry the owner to his journey's end; he had rather, he said, mount the old Confederation, and drag on in the old way, than be amused with the appearance of a Government so essentially defective. Mr. MADISON observed, that the present is a question which ought to be conducted with moderation and candor; and, therefore, there is no occasion to have recourse to those tragic representations which have been adduced. Warmth and passion should be excluded from the discussion of a subject which ought to depend on the cool dictates of reason for its decision. Adverting to the observation of Mr. SMITH, (of South Carolina,) "that it would be a deplorable thing for the Senate of the United States to have fallen on a decision which violates the constitution," he inquired, What does the reasoning of the gentleman tend to show but this, that from respect to the Senate this House ought to sanction their decisions? And from hence it will follow, that the President of the United States ought, out of respect to both, to sanction their joint proceedings; but he could remind the gentleman of his holding different sentiments on another occasion. Mr. M. then enlarged on the exact balance or equipoise contemplated by the constitution, to be observed and maintained between the several branches of Government; and showed, that except this idea was preserved, the advantages of different independent branches would be lost, and their separate deliberations and determinations be entirely useless. In describing a corporation, he observed, that the powers proposed to be given are such as do not exist antecedent to the existence of the corporation; these powers are very extensive in their nature, and to which a principle of perpetuity may be annexed. He waived a reply to Mr. VINING's observations on the common law, [in which that gentleman had been lengthy and minute, in order to invalidate Mr. MADISON's objections to the power proposed to be given to the Bank, to make rules and regulations, not contrary to law.] Mr. M. said the question would involve a very lengthy discussion; and other objects more intimately connected with the subject remained to be considered. The power of granting charters, he observed, is a great and important power, and ought not to be exercised unless we find ourselves expressly authorized to grant them. Here he dilated on the great and extensive influence that incorporated societies had on public affairs in Europe. They are powerful machines, which have always been found competent to effect objects on principles in a great measure independent of the people. He argued against the influence of the precedent to be established by the bill; for though it has been said, that the charter is to be granted only for a term of years, yet he contended, that granting the powers on any principle is granting them in _perpetuum_; and assuming this right on the part of the Government involves the assumption of every power whatever. Noticing the arguments in favor of the bill, he said, it had been observed that "Government necessarily possesses every power." However true this idea may be in the theory, he denied that it applied to the Government of the United States. Here he read the restrictive clause in the constitution; and then observed, that he saw no pass over this limit. The preamble to the constitution, said he, has produced a new mine of power; but this is the first instance he had heard of, in which the preamble has been adduced for such a purpose. In his opinion, the preamble only states the objects of the Confederation, and the subsequent clauses designate the express powers by which those objects are to be obtained; and a mean is proposed through which to acquire those that may be found still requisite, more fully to effect the purposes of the Confederation. It is said, "there is a field of legislation yet unexplored." He had often heard this language; but he confessed he did not understand it. Is there a single blade of grass--is there any property in existence in the United States, which is not a subject of legislation, either of the particular States, or of the United States? He contended that the exercise of this power, on the part of the United States, involves, to all intents and purposes, every power which an individual State may exercise. On this principle, he denied the right of Congress to make use of a bank to facilitate the collection of taxes. He did not, however, admit the idea, that the institution would conduce to that object. The bank notes are to be equal to gold and silver, and consequently will be as difficult to obtain as the specie. By means of the objects of trade on which gold and silver are employed, there will be an influx of those articles; but paper being substituted, will fill those channels which would otherwise be occupied by the precious metals. This, experience shows, is the uniform effect of such a substitution. The right of Congress to regulate trade is adduced as an argument in favor of this of creating a corporation; but what has this bill to do with trade? Would any plain man suppose that this bill had any thing to do with trade? He noticed the observation respecting the utility of banks to aid the Government with loans. He denied the necessity of the institution to aid the Government in this respect. Great Britain, he observed, did not depend on such institutions; she borrows from various sources. Banks, it is said, are necessary to pay the interest of the public debt. Then they ought to be established in the places where that interest is paid; but can any man say, that the bank notes will circulate at par in Georgia? From the example in Scotland, we know that they cannot be made equal to specie, remote from the place where they can be immediately converted into coin; they must depreciate in case of a demand for specie; and if there is no moral certainty that the interest can be paid by these bank bills, will the Government be justified in depriving itself of the power of establishing banks in different parts of the Union? We reason, and often with advantage, from British models; but in the present instance there is a great dissimilarity of circumstances. The bank notes of Great Britain do not circulate universally. To make the circumstances parallel, it ought to have been assumed as a fact, that banks are established in various parts of Great Britain, at which the interest of the national debt is paid; but the fact is, it is only paid in one place. The clause of the constitution which has been so often recurred to, and which empowers Congress to dispose of its property, he supposed referred only to the property left at the conclusion of the war, and has no reference to the moneyed property of the United States. The clause which empowers Congress to pass all laws necessary, &c., has been brought forward repeatedly by the advocates of the bill; he noticed the several constructions of this clause which had been offered. The conclusion which he drew from the commentary of the gentleman from Massachusetts, (Mr. GERRY,) was, that Congress may do what they please; and recurring to the opinion of that gentleman in 1787, he said the powers of the constitution were then dark, inexplicable, and dangerous; but now, perhaps, as the result of experience, they are clear and luminous! The constructions of the constitution, he asserted, which have been maintained on this occasion, go to the subversion of every power whatever in the several States; but we are told, for our comfort, that the judges will rectify our mistakes. How are the judges to determine in the case; are they to be guided in their decisions by the rules of expediency? It has been asked, that if those minute powers of the constitution were thought to be necessary, is it supposable that the great and important power on the table was not intended to be given? Mr. M. interpreted this circumstance in a quite different way, viz: if it was thought necessary to specify in the constitution those minute powers, it would follow that more important powers would have been explicitly granted, had they been contemplated. The Western Territory business, he observed, was a case _sui generis_, and therefore cannot be cited with propriety. West Point, so often mentioned, he said, was purchased by the United States, pursuant to law, and the consent of the State of New York is supposed, if it has not been expressly granted; but, on any occasion, does it follow that one violation of the constitution is to be justified by another? The permanent residence bill, he conceived, was entirely irrelative to the subject; but he conceived it might be justified on truly constitutional principles. The act vesting in the President of the United States the power of removability has been quoted; he recapitulated, in a few words, his reasons for being in favor of that bill. The Bank of North America he had opposed, as he considered the institution as a violation of the Confederation. The State of Massachusetts, he recollected, voted with him on that occasion. The Bank of North America was, however, the child of necessity; as soon as the war was over, it ceased to operate as to Continental purposes. But, asked he, are precedents in war to justify violations of private and State rights in a time of peace? And did the United States pass laws to punish the counterfeiting the notes of that bank? They did not, being convinced of the invalidity of any such law; the bank, therefore, took shelter under the authority of the State. The energetic administration of this Government is said to be connected with this institution. Mr. M. here stated the principles on which he conceived this Government ought to be administered; and added, other gentlemen may have had other ideas on the subject, and may have consented to the ratification of the constitution on different principles and expectations; but he considered the enlightened opinion and affection of the people the only solid basis for the support of this Government. Mr. M. then stated his objections to the several parts of the bill. The first article he objected to was the duration. A period of twenty years was, to this country, as a period of a century in the history of other countries; there was no calculating for the events which might take place. He urged the ill policy of granting so long a term, from the experience of the Government in respect to some treaties, which, though found inconvenient, could not now be altered. The different classes of the public creditors, he observed, were not all put on an equal footing by this bill; but in the bill for the disposal of the Western Territory this had been thought essential. The holders of six per cent. securities will derive undue advantages. Creditors at a distance, and the holders of three per cent. securities, ought to be considered, as the public good is most essentially promoted by an equal attention to the interest of all. I admit, said he, that the Government ought to consider itself as the trustee of the public on this occasion, and therefore should avail itself of the best disposition of the public property. In this view of the subject, he objected to the bill, as the public, he thought, ought to derive greater advantages from the institution than those proposed. In case of a universal circulation of the notes of the proposed bank, the profits will be so great that the Government ought to receive a very considerable sum for granting the charter. There are other defects in the bill, which render it proper and necessary, in my opinion, that it should undergo a revision and amendment before it passes into a law. The power vested by the bill in the Executive to borrow of the bank, he thought was objectionable; and the right to establish subordinate banks ought not to be delegated to any set of men under Heaven. The public opinion has been mentioned. If the appeal to the public opinion is suggested with sincerity, we ought to let our constituents have an opportunity to form an opinion on the subject. He concluded by saying, he should move for the previous question. The previous question, "Shall the main question now be put?" being determined in the affirmative, Mr. GERRY rose to reply to Mr. MADISON; but the House discovering an impatience to have the main question put, after a few remarks, he waived any further observations. The yeas and nays were then taken as follows, on the passage of the bill: YEAS.--Messrs. Ames, Benson, Boudinot, Bourne, Cadwalader, Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue, Hartley, Hathorn, Heister, Huntington, Lawrence, Leonard, Livermore, P. Muhlenberg, Partridge, Rensselaer, Schureman, Scott, Sedgwick, Seney, Sevier, Sherman, Sylvester, Sinnickson, Smith, (of Maryland,) Smith, (of South Carolina,) Steele, Sturges, Thatcher, Trumbull, Vining, Wadsworth, and Wynkoop--39. NAYS.--Messrs. Ashe, Baldwin, Bloodworth, Brown, Burke, Carroll, Contee, Gale, Grout, Giles, Jackson, Lee, Madison. Mathews, Moore, Parker, Stone, Tucker, White, and Williamson--20. MONDAY, February 14. _Commerce with England._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and House of Representatives:_ Soon after I was called to the administration of the Government, I found it important to come to an understanding with the Court of London, on several points interesting to the United States; and particularly to know whether they were disposed to enter into arrangements, by mutual consent, which might fix the commerce between the two nations on principles of reciprocal advantage. For this purpose, I authorized informal conferences with their Ministers; and from these, I do not infer any disposition, on their part, to enter into any arrangements merely commercial. I have thought it proper to give you this information, as it might, at some time, have influence on matters under your consideration. GEO. WASHINGTON. UNITED STATES, _February 14, 1791_. THURSDAY, March 3. _Jails of the States._ On motion that the House do come to the following resolution: Whereas Congress did, by a resolution of the 23d of September, 1789, recommend to the several States to pass laws making it expressly the duty of the keepers of their jails to receive, and safely keep therein, all prisoners committed under authority of the United States: In order, therefore, to ensure the administration of justice: _Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That, in case any State shall not have complied with the said recommendation, the Marshal in such State, under the direction of the Judge of the District, be authorized to hire a convenient place to serve as a temporary jail, and to make the necessary provision for the safe-keeping of prisoners committed under the authority of the United States, until permanent provision shall be made by law for that purpose; and the said Marshal shall be allowed his reasonable expenses incurred for the above purposes, to be paid out of the Treasury of the United States. It was resolved in the affirmative. _Session Closed._ The business of the session being gone through, on motion, _Resolved_, That the thanks of the House of Representatives of the United States be presented to Frederick Augustus Muhlenberg, in testimony of their approbation of his conduct in the chair, and in the execution of the difficult and important trust reposed in him as Speaker of the said House. It was resolved, unanimously: whereupon Mr. SPEAKER made his acknowledgments to the House, in manner following: _Gentlemen of the House of Representatives:_ This unexpected mark of your approbation of my conduct has made so deep an impression on my mind, that I cannot find words to express the high sense of gratitude I entertain on this occasion. I have not vanity sufficient to suppose that my feeble, though well-meant, endeavors merit so great a reward; for it was your kind indulgence and support alone which enabled me to go through the duties of the station which you were pleased to assign me; but I shall ever consider this distinguished and honorable testimony as the most fortunate circumstance in my life. Gentlemen, I most sincerely thank you. May every possible happiness attend you and every individual of this body, and may your zealous endeavors to promote the welfare of our beloved country, which I have so long and so often been a witness to, be crowned with unbounded success. _Ordered_, That a message be sent to the Senate, to inform them that this House, having completed the business before them, are now about to adjourn without day, and that the Clerk of this House do go with the said message. The Clerk accordingly went with the said message, and being returned, A message was received from the Senate, notifying that the Senate, having completed the legislative business before them, are now about to adjourn; whereupon, Mr. SPEAKER adjourned the House without day. SECOND CONGRESS.--FIRST SESSION. HELD AT THE CITY OF PHILADELPHIA, OCTOBER 24, 1791, TO MAY 8, 1792. LIST OF MEMBERS. SENATORS. _New Hampshire._--John Langdon, Paine Wingate. _Vermont._--S. R. Bradley, Moses Robinson. _Massachusetts._--George Cabot, Caleb Strong. _Rhode Island._--Theodore Foster, Joseph Stanton. _Connecticut._--Oliver Ellsworth, Roger Sherman. _New York._--Aaron Burr, Rufus King. _New Jersey._--Philemon Dickinson, John Rutherford. _Pennsylvania._--Robert Morris, James Ross. _Delaware._--Richard Bassett, George Read. _Maryland._--Charles Carroll, John Henry. _Virginia._--Richard H. Lee, James Monroe. _North Carolina._--Benjamin Hawkins, Samuel Johnston. _South Carolina._--Pierce Butler, Ralph Izard. _Georgia._--William Few, James Gunn. REPRESENTATIVES. _New Hampshire._--Nicholas Gilman, S. Livermore, Jeremiah Smith. _Vermont._--Nathaniel Niles, Israel Smith. _Massachusetts._--Fisher Ames, S. Bourne, Elbridge Gerry, Benjamin Goodhue, George Leonard, T. Sedgwick, George Thatcher, Artemas Ward. _Rhode Island._--Benjamin Bourne. _Connecticut._--James Hillhouse, Amasa Learned, Jonathan Sturges, Jonathan Trumbull, Jeremiah Wadsworth. _New York._--Egbert Benson, James Gordon, John Laurance, C. C. Schoonmaker, Peter Sylvester, T. Tredwell. _New Jersey._--Elias Boudinot, Jonathan Dayton, Aaron Kitchell. _Pennsylvania._--William Findlay, Thomas Fitzsimons, Andrew Gregg, Thomas Hartley, Daniel Heister, Israel Jacobs, John W. Kittera, Frederick A. Muhlenberg. _Delaware._--John Vining. _Maryland._--Philip Key, William Pinkney, Joshua Seney, Updine Sheredine, Samuel Sterrett, William Vans Murray. _Virginia._--John Browne, William B. Giles, Samuel Griffin, Richard Bland Lee, James Madison, Andrew Moore, John Page, Josiah Parker, A. B. Venable, Alexander White. _North Carolina._--John B. Ashe, Timothy Bloodworth, William B. Grove, Nathaniel Macon, John Sevier, John Steele, Hugh Williamson. _South Carolina._--Robert Barnwell, Daniel Huger, William Smith, Thomas Sumter, Thomas Tudor Tucker. _Georgia._--Abraham Baldwin, Anthony Wayne, Francis Willis. PROCEEDINGS IN THE SENATE. MONDAY, October 24, 1791. This being the day fixed by law for the annual meeting of Congress, at the first session of the second Congress, the following members of the Senate appeared, produced their credentials, and took their seats: JOHN ADAMS, Vice President and President of the Senate. JOHN LANGDON and PAINE WINGATE, from New Hampshire. CALEB STRONG and GEORGE CABOT, from Massachusetts. THEODORE FOSTER and JOSEPH STANTON, jr., from Rhode Island. ROGER SHERMAN, from Connecticut, in the place of WILLIAM S. JOHNSON, resigned. AARON BURR, from New York. PHILEMON DICKINSON and JOHN RUTHERFORD, from New Jersey. ROBERT MORRIS, from Pennsylvania. GEORGE READ, from Delaware. SAMUEL JOHNSTON and BENJAMIN HAWKINS, from North Carolina. PIERCE BUTLER and RALPH IZARD, from South Carolina; and WILLIAM FEW, from Georgia. _Ordered_, That Messrs. Butler, Morris, and Dickinson, be a committee to wait on the President of the United States, and inform him that a quorum of the Senate is assembled, and ready to receive any communication he may be pleased to make to them. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business; and that they have notified the President of the United States that they are ready to receive such communications as he may be pleased to make to them. Mr. IZARD, from the joint committee appointed to wait on the President of the United States, agreeably to the resolution of the two Houses, of this day, reported that they had executed the business, and that the President of the United States proposed to-morrow, at 12 o'clock, to meet the two Houses of Congress in the Senate Chamber. TUESDAY, October 25. _Ordered_, That the Secretary inform the House of Representatives that the Senate are ready to meet them in the Senate Chamber, to receive any communications the President of the United States may be pleased to make to the two Houses of Congress; and that the usual seats will be assigned them. The House of Representatives having accordingly taken their seats, the PRESIDENT OF THE UNITED STATES came into the Senate Chamber, and addressed both Houses of Congress as followeth:[39] _Fellow-Citizens of the Senate, and of the House of Representatives:_ I meet you upon the present occasion with the feelings which are naturally inspired by a strong impression of the prosperous situation of our common country, and by a persuasion, equally strong, that the labors of the session which has just commenced will, under the guidance of a spirit no less prudent than patriotic, issue in measures conducive to the stability and increase of national prosperity. Numerous as are the Providential blessings which demand our grateful acknowledgments, the abundance with which another year has again rewarded the industry of the husbandman is too important to escape recollection. Your own observations in your respective situations will have satisfied you of the progressive state of agriculture, manufactures, commerce, and navigation. In tracing their causes, you will have remarked, with particular pleasure, the happy effects of that revival of confidence, public as well as private, to which the Constitution and laws of the United States have so eminently contributed; and you will have observed, with no less interest, new and decisive proofs of the increasing reputation and credit of the nation. But you, nevertheless, cannot fail to derive satisfaction from the confirmation of these circumstances, which will be disclosed in the several official communications that will be made to you in the course of your deliberations. The rapid subscriptions to the Bank of the United States, which completed the sum allowed to be subscribed in a single day, is among the striking and pleasing evidences which present themselves, not only of confidence in the Government, but of resource in the community. In the interval of your recess, due attention has been paid to the execution of the different objects which were specially provided for by the laws and resolutions of the last session. Among the most important of these, is the defence and security of the Western frontiers. To accomplish it on the most humane principles was a primary wish. Accordingly, at the same time that treaties have been provisionally concluded, and other proper means used to attach the wavering, and to confirm in their friendship the well-disposed tribes of Indians, effectual measures have been adopted to make those of a hostile description sensible that a pacification was desired upon terms of moderation and justice. These measures having proved unsuccessful, it became necessary to convince the refractory of the power of the United States to punish their depredations. Offensive operations have therefore been directed, to be conducted, however, as consistently as possible with the dictates of humanity. Some of these have been crowned with full success, and others are yet depending. The expeditions which have been completed were carried on under the authority, and at the expense, of the United States, by the militia of Kentucky; whose enterprise, intrepidity, and good conduct are entitled to peculiar commendation. Overtures of peace are still continued to the deluded tribes, and considerable numbers of individuals belonging to them have lately renounced all further opposition, removed from their former situations, and placed themselves under the immediate protection of the United States. It is sincerely to be desired, that all need of coercion in future may cease; and that an intimate intercourse may succeed, calculated to advance the happiness of the Indians, and to attach them firmly to the United States. In order to this, it seems necessary-- That they should experience the benefits of an impartial dispensation of justice. That the mode of alienating their lands, the main source of discontent and war, should be so defined and regulated as to obviate imposition, and, as far as may be practicable, controversy concerning the reality and extent of the alienations which are made. That commerce with them should be promoted under regulations tending to secure an equitable deportment towards them, and that such rational experiments should be made, for imparting to them the blessings of civilization, as may from time to time suit their condition. That the Executive of the United States should be enabled to employ the means to which the Indians have been long accustomed for uniting their immediate interests with the preservation of peace. And that efficacious provision should be made for inflicting adequate penalties upon all those who, by violating their rights, shall infringe the treaties, and endanger the peace of the Union. A system corresponding with the mild principles of religion and philanthropy towards an unenlightened race of men, whose happiness materially depends on the conduct of the United States, would be as honorable to the national character as conformable to the dictates of sound policy. Pursuant to the authority contained in the several acts on that subject, a district of ten miles square, for the permanent seat of the Government of the United States, has been fixed, and announced by proclamation; which district will comprehend lands on both sides of the river Potomac, and the towns of Alexandria and Georgetown. A city has also been laid out, agreeably to a plan which will be placed before Congress. And, as there is a prospect, favored by the rate of sales which have already taken place, of ample funds for carrying on the necessary public buildings, there is every expectation of their due progress. The completion of the census of the inhabitants, for which provision was made by law, has been duly notified, (excepting one instance in which the return has been informal; and another, in which it has been omitted or miscarried,) and the returns of the officers who were charged with this duty, which will be laid before you, will give you the pleasing assurance, that the present population of the United States borders on four millions of persons. _Gentlemen of the Senate:_ Two treaties which have been provisionally concluded with the Cherokees and Six Nations of Indians, will be laid before you for your consideration and ratification. _Gentlemen of the House of Representatives:_ In entering upon the discharge of your legislative trust, you must anticipate, with pleasure, that many of the difficulties, necessarily incident to the first arrangements of a new Government, for an extensive country, have been happily surmounted by the zealous and judicious exertions of your predecessors, in co-operation with the other branch of the Legislature. The important objects which remain to be accomplished, will, I am persuaded, be conducted upon principles equally comprehensive, and equally well calculated for the advancement of the general weal. It is particularly pleasing to me to be able to announce to you that the revenues which have been established promise to be adequate to their objects, and maybe permitted, if no unforeseen exigency occurs, to supersede, for the present, the necessity of any new burdens upon our constituents.[40] An object which will claim your early attention is a provision for the current service of the ensuing year, together with such ascertained demands upon the Treasury as require to be immediately discharged, and such casualties as may have arisen in the execution of the public business, for which no specific appropriation may have yet been made; of all which a proper estimate will be laid before you. _Gentlemen of the Senate, and of the House of Representatives:_ I shall content myself with a general reference to former communications for several objects, upon which the urgency of other affairs has hitherto postponed any definitive resolution. Their importance will recall them to your attention; and, I trust that the progress already made in the most arduous arrangements of the Government will afford you leisure to resume them with advantage. There are, however, some of them of which I cannot forbear a more particular mention. These are: the Militia, the Post Office and Post Roads, the Mint, Weights and Measures, and a provision for the sale of the vacant lands of the United States. The disorders in the existing currency, and especially the scarcity of small change, a scarcity so peculiarly distressing to the poorer classes, strongly recommend the carrying into immediate effect the resolution already entered into concerning the establishment of a Mint. Measures have been taken pursuant to that resolution for procuring some of the most necessary artists, together with the requisite apparatus. A provision for the sale of the vacant lands of the United States is particularly urged, among other reasons, by the important considerations, that they are pledged as a fund for reimbursing the public debt; that, if timely and judiciously applied, they may save the necessity of burthening our citizens with new taxes for the extinguishment of the principal; and that, being free to discharge the principal but in a limited proportion, no opportunity ought to be lost for availing the public of its right. G. WASHINGTON. UNITED STATES, _October 25, 1791_. THE PRESIDENT OF THE UNITED STATES having retired, and the two Houses being separated, _Ordered_, That Messrs. BURR, CABOT, and JOHNSTON, be a committee to prepare and report the draft of an Address to the President of the United States, in answer to his Speech delivered this day to both Houses of Congress. _Ordered_, That the Speech of the President of the United States, delivered this day, be printed for the use of the Senate. WEDNESDAY, October 26. RUFUS KING, from the State of New York, and JOHN HENRY, from the State of Maryland, attended. THURSDAY, October 27. The following message was received from the President of the United States: _Gentlemen of the Senate and of the House of Representatives:_ I lay before you a copy of a letter, and of sundry documents, which I have received from the Governor of Pennsylvania, respecting certain persons who are said to have fled from justice out of the State of Pennsylvania, into that of Virginia; together with a report of the Attorney General of the United States upon the same subject. I have received from the Governor of North Carolina a copy of an Act of the General Assembly of that State, authorizing him to convey to the United States the right and jurisdiction of the said State over one acre of land in Ocracock Island, and ten acres on the Cape Island, within the said State, for the purpose of erecting light-houses thereon, together with the deed of the Governor, in pursuance thereof, and the original conveyances made to the State by the individual proprietors, which original conveyances contain conditions that the light-house on Ocracock shall be built before the first day of January, 1801, and that on the Cape Island, before the eighth day of October, 1800. And I have caused these several papers to be deposited in the office of the Secretary of State. A statement of the Returns of the Enumeration of the Inhabitants of the United States, which have been received, will at this time be laid before you. G. WASHINGTON. UNITED STATES, _October 27, 1791_. Mr. BURR reported, from the committee appointed to prepare an Address to the President of the United States, in answer to his Speech to both. Houses of Congress at the opening of the session. _Ordered_, That to-morrow be assigned to take the report into consideration. FRIDAY, October 28. Agreeably to the order of the day, the Senate proceeded to take into consideration the Address reported by the committee, in answer to the Speech of the President of the United States, on the 24th instant, to both Houses of Congress; which report was agreed to, as follows: _To the President of the United States:_ SIR: The Senate of the United States have received with the highest satisfaction the assurances of public prosperity contained in your Speech to both Houses. The multiplied blessings of Providence have not escaped our notice, or failed to excite our gratitude. The benefits which flow from the restoration of public and private confidence are conspicuous and important; and the pleasure with which we contemplate them is heightened by your assurance of those further communications which shall confirm their existence and indicate their source. While we rejoice in the success of those military operations which have been directed against the hostile Indians, we lament with you the necessity that has produced them; and we participate the hope that the present prospect of a general peace, on terms of moderation and justice, may be wrought into complete and permanent effect; and that the measures of Government may equally embrace the security of our frontiers and the general interests of humanity. Our solicitude to obtain which, will insure our zealous attention to an object so warmly espoused by the principles of benevolence, and so highly interesting to the honor and welfare of the nation. The several subjects which you have particularly recommended, and those which remain of former sessions, will engage our early consideration. We are encouraged to prosecute them with alacrity and steadiness, by the belief that they will interest no passion but that for the general welfare; by the assurance of concert, and by a view of those arduous and important arrangements which have been already accomplished. We observe, sir, the constancy and activity of your zeal for the public good. The example will animate our efforts to promote the happiness of our country. _Ordered_, That the Address to the President of the United States, in answer to his Speech, be presented by the Vice President, attended by the Senate; and that the committee which reported the Address wait on the President of the United States, and desire to be informed at what time and place he will receive the same. MONDAY, October 31. JAMES MONROE, from the State of Virginia, attended, and took his seat. MOSES ROBINSON, from the State of Vermont, produced his credentials, and took his seat in the Senate. Mr. BURR, from the committee appointed on the 28th to wait on the President of the United States, reported, that it would be agreeable to the President of the United States to receive the Address of the Senate, in answer to his Speech to both Houses of Congress, on Monday next at 12 o'clock. Whereupon, the Senate waited on the President of the United States at his own house, and the VICE PRESIDENT, in their name, communicated to him the Address agreed to on the 28th instant, to which the PRESIDENT OF THE UNITED STATES was pleased to make the following reply: GENTLEMEN: This manifestation of your zeal for the honor and the happiness of our country derives its full value from the share which your deliberations have already had in promoting both. I thank you for the favorable sentiments with which you view the part I have borne in the arduous trust committed to the Government of the United States; and desire you to be assured that all my zeal will continue to second those further efforts for the public good which are ensured by the spirit in which you are entering on the present session. G. WASHINGTON. The Senate returned to the Senate Chamber. FRIDAY, November 4. STEPHEN R. BRADLEY, from the State of Vermont, appeared, produced his credentials, and took his seat. WEDNESDAY, November 9. OLIVER ELLSWORTH, from the State of Connecticut, attended, and took his seat. THURSDAY, November 10. JAMES GUNN, from the State of Georgia, attended, and took his seat. FRIDAY, January 6. CHARLES CARROLL, from the State of Maryland, attended, and took his seat. MONDAY, January 9. RICHARD BASSETT, from the State of Delaware, attended, and took his seat. MONDAY, March 5. The following Message was received from the President of the United States: _Gentlemen of the Senate, and of the House of Representatives:_ Knowing the friendly interest you take in whatever may promote the happiness and prosperity of the French nation, it is with pleasure that I lay before you the translation of a letter which I have received from his Most Christian Majesty, announcing to the United States of America his acceptance of the constitution presented to him in the name of his nation. G. WASHINGTON. UNITED STATES, _March 5, 1792_. [Translation.] _Very dear, Great Friends and Allies:_ We make it our duty to inform you that we have accepted the constitution which has been presented to us in the name of the nation, and according to which France will be henceforth governed. We do not doubt that you take an interest in an event so important to our kingdom, and to us; and that it is with real pleasure we take this occasion to renew to you assurances of the sincere friendship we bear you. Whereupon, we pray God to have you, very dear, great friends and allies, in his just and holy keeping. Written at Paris, the 19th of September, 1791. Your good friend and ally, LOUIS. MONTMORIN. THE UNITED STATES OF NORTH AMERICA. TUESDAY, March 13. The Senate resumed the consideration of the motion made yesterday on the Message from the President of the United States, transmitting a copy of a letter from his Most Christian Majesty to the United States of America. A motion was made and seconded to postpone this motion, in order to take up the following: "_Resolved_, That the President of the United States be informed that the Senate have received with satisfaction the official intelligence that the King of the French has accepted the constitution presented to him by the National Assembly, and are highly gratified by every event that promotes the freedom and prosperity of the French nation and the happiness and glory of their King." It passed in the negative; yeas 6, nays 21--as follows: YEAS.--Messrs. Bassett, Cabot, Ellsworth, King, Strong, and Wingate. NAYS.--Messrs. Bradley, Burr, Butler, Carroll, Dickinson, Few, Foster, Gunn, Hawkins, Henry, Johnston, Izard, Langdon, Lee, Monroe, Morris, Read, Robinson, Rutherford, Stanton, and Sherman. The original motion, being amended, was agreed to. Whereupon, it was _Resolved_, That the President be requested to make known to the King of the French, that the Senate of the United States have received with the highest satisfaction the official communication of his acceptance of the constitution which, it is their earnest wish, may establish, on a solid basis, the freedom and prosperity of the French nation, and the happiness and glory of the Monarch presiding over it. WEDNESDAY, March 14. _Ordered_, That the resolution of the Senate, on the Message of the President of the United States, enclosing the letter from his Most Christian Majesty, be signed by the Vice President, and laid before the President of the United States, by the Secretary. MONDAY, March 26. A motion was made by Mr. MONROE, seconded by Mr. LEE, as follows: "_Resolved_, That it be a standing rule, that the doors of the Senate Chamber remain open whilst the Senate shall be sitting in their Legislative capacity, except on such occasions as in their judgment may require secrecy; and that this rule shall commence and be in force on the first day of the next session of Congress;" and it passed in the negative--yeas 8, nays 17, as follows: YEAS.--Messrs. Butler, Carroll, Foster, Hawkins, Johnston, King, Lee, and Monroe. NAYS.--Messrs. Bassett, Bradley, Cabot, Dickinson, Ellsworth, Few, Gunn, Henry, Izard, Langdon, Read, Robinson, Rutherford, Sherman, Stanton, Strong, and Wingate. WEDNESDAY, April 18. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President _pro tempore_ as the constitution provides, and the Hon. RICHARD HENRY LEE was duly elected. _Ordered_, That the Secretary wait on the President of the United States, and lay before him an attested copy of this proceeding, and that he notify the House of Representatives of the election of a President _pro tempore_. THURSDAY, April 19. _Resolved_, That the President _pro tempore_ of the Senate, as a member, retain his right to vote upon all questions. TUESDAY EVENING, May 8. A message from the House of Representatives informed the Senate that the House of Representatives, having completed the business before them, are about to adjourn. In conformity to the resolution of the 4th instant, the President _pro tempore_ adjourned the Senate to the first Monday in November next, being the time appointed by law for the next annual meeting of Congress. SECOND CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, October 24, 1791. This being the day appointed by law for the meeting of the present Congress, the following members appeared, produced their credentials, and took their seats: _From New Hampshire_, NICHOLAS GILMAN, SAMUEL LIVERMORE, and JEREMIAH SMITH. _From Massachusetts_, FISHER AMES, SHEARJASHUB BOURNE, ELBRIDGE GERRY, BENJAMIN GOODHUE, GEORGE THATCHER, and ARTEMAS WARD. _From Rhode Island_, BENJAMIN BOURNE. _From Connecticut_, JAMES HILLHOUSE, JONATHAN STURGES, JONATHAN TRUMBULL, JEREMIAH WADSWORTH, and AMASA LEARNED. _From New York_, JAMES GORDON, JOHN LAURANCE, PETER SYLVESTER, and THOMAS TREDWELL. _From New Jersey_, ELIAS BOUDINOT. _From Pennsylvania_, THOMAS FITZSIMONS, DANIEL HEISTER, and FREDERICK AUGUSTUS MUHLENBERG. _From Delaware_, JOHN VINING. _From Maryland_, JOSHUA SENEY, and SAMUEL STERRETT. _From Virginia_, JOHN BROWN, WILLIAM B. GILES, SAMUEL GRIFFIN, JAMES MADISON, ANDREW MOORE, and ALEXANDER WHITE. _From North Carolina_, JOHN STEELE, and HUGH WILLIAMSON. _From South Carolina_, DANIEL HUGER, WILLIAM SMITH, and THOMAS TUDOR TUCKER. _From Georgia_, FRANCIS WILLIS. A quorum of the members being present, the House proceeded to ballot for Speaker, when it appeared that JONATHAN TRUMBULL, from Connecticut, was elected. On being conducted to the chair, Mr. TRUMBULL addressed the House as follows: GENTLEMEN: I find myself unable to express to you the full sense I have of the distinguished honor you have done me in the choice of your Speaker. The diffidence I feel in my abilities to discharge, with propriety, the duties of the chair, is almost insuperable in my own mind. But, encouraged by the known candor of this honorable body, and depending, as I think I may confidently do, on the kind assistance of each individual in it, I shall enter on its duties, with full assurances to you, gentlemen, that I shall endeavor to conduct myself with that impartiality, integrity, and assiduity, which become the conspicuous station in which you have been pleased to place me. The House then proceeded to ballot for a Clerk, when there appeared a unanimous vote for JOHN BECKLEY. The oath to support the constitution was then administered to the members present, and the oath of office to the Speaker and Clerk. _Ordered_, That the Speaker appoint committees until the House shall otherwise determine. A message was received from the Senate, informing the House that a quorum of that body is assembled and ready to proceed to business; and that the Senate have informed the President of the United States that they are ready to receive any communications he may be pleased to make to them. _Resolved_, That Mr. SMITH, of South Carolina, Mr. LAURANCE, and Mr. WHITE, be a committee on the part of this House, to act jointly with the committee from the Senate, to wait on the President. _Ordered_, That a committee be appointed to prepare and report Standing Rules and Orders of proceeding for the House. Messrs. MUHLENBERG, TUCKER, WILLIAMSON, AMES, and SMITH, of New Hampshire, were named. JOSEPH WHEATON was appointed Sergeant-at-Arms; and GIFFORD DALLEY, Doorkeeper, and THOMAS CLAXTON, assistant Doorkeeper. _Resolved_, That two Chaplains, of different denominations, be appointed to Congress for the present session, to interchange weekly. Mr. SMITH, from the joint committee appointed to wait on the President of the United States, reported that the President would make a communication to both Houses to-morrow at twelve o'clock, in the Senate Chamber. A message from the Senate announced the agreement of that body to the resolution of this House for the appointment of two Chaplains, and had elected the Right Reverend Bishop WHITE, on their part. TUESDAY, October 25. The following members appeared, presented their credentials, and took their seats: ABRAHAM CLARK, JONATHAN DAYTON, and AARON KITCHELL, from New Jersey; and ISRAEL JACOBS, from Pennsylvania. The House proceeded to ballot for a Chaplain, when a majority of the votes were found in favor of the Rev. Mr. BLAIR. A message being received from the Senate, stating that they were ready to receive the communication from the President of the United States, the Speaker, attended by the members of the House, withdrew to the Senate Chamber for the purpose of receiving the same. On the return of the members, the Speaker laid before the House a copy of the Speech delivered by the President, (which will be found in the proceedings of the Senate.) The Speech was committed to a Committee of the Whole to-morrow. WEDNESDAY, October 26. _President's Speech._ The House then went into Committee of the Whole, on the President's Speech, Mr. MUHLENBERG in the chair. The Speech being read, Mr. VINING moved a resolution, of which the following is the purport: "_Resolved_, That it is the opinion of this committee that an Address should be presented to the President of the United States by the House of Representatives, in answer to his Speech, to congratulate him on the prosperous situation of the United States, expressive of the approbation of the House of the wise and prudent measures he has pursued during their recess, in the execution of the duties committed to his charge: promising speedy attention to the important and momentous objects recommended to their consideration, and expressing their approbation of the humane and effectual steps taken, under his direction, for the defence of the Western frontiers." This resolution was objected to by Messrs. LAURANCE, SEDGWICK, SMITH, (of South Carolina,) and LIVERMORE, upon the principle, that it expressed the sense of the House upon points which required further information and investigation before the House could, with propriety, determine. It was difficult to say, before proper documents were laid before the House, whether the measures adopted for the defence of the Western frontiers were the most prudent that could be adopted. It was impossible positively to assert, that the President, in the execution of the duties assigned him in carrying into effect the excise act, had done all for the best. Every member that spoke agreed in expressing his individual opinion, that no doubt the President had acted with his wonted prudence and wisdom in the execution of the trusts reposed in him; but also agreed that it was improper, indeed, it was no compliment paid to the President, to approve, before a formal examination. In answer to these objections it was observed, that so far as circumstances had been made known to the members, relative to the steps taken by the President during the recess of the Federal Legislature, so far they claimed the approbation of the House; and that the opinion of the House was only meant to be given as far as they were informed. It was urged, that the answer of the House should be a candid expression of their feelings; feelings which the prosperous situation of the country undoubtedly called forth, and which the issue of the measures adopted could not fail to excite. Several modifications were proposed to the resolution, which was finally agreed to, as follows: "_Resolved_, That it is the opinion of this committee that a respectful Address ought to be presented by the House of Representatives to the President of the United States, in answer to his Speech to both Houses of Congress at the commencement of this session, containing assurances that this House will take into consideration the various and important matters recommended to their attention." Mr. MADISON, Mr. LAURANCE, and Mr. SMITH, (of South Carolina,) were appointed a committee to prepare an Address, pursuant to the resolution. THURSDAY, October 27. Mr. MADISON, from the committee appointed, reported an Address to the President of the United States, in answer to his Speech to both Houses of Congress; which was read, and ordered to be committed to a Committee of the whole House immediately. _Address to the President._ The House accordingly resolved itself into a Committee of the whole House on the said Address; and, after some time spent therein, Mr. MUHLENBERG reported that the committee had had the said Address under consideration, and made no amendment thereto. Whereupon, it was _Resolved, unanimously_, That this House doth agree to the said Address, in the words following: SIR: In receiving your Address, at the opening of the present session, the House of Representatives have taken an ample share in the feelings inspired by the actual prosperity and flattering prospects of our country; and whilst, with becoming gratitude to Heaven, we ascribe this happiness to the true source from which it flows, we behold with an animating pleasure the degree in which the Constitution and laws of the United States have been instrumental in dispensing it. It yields us particular satisfaction to learn the success with which the different important measures of the Government have proceeded; as well those specially provided for the last session, as those of preceding date. The safety of our Western frontier, in which the lives and repose of so many of our fellow-citizens are involved, being peculiarly interesting, your communications on that subject are proportionally grateful to us. The gallantry and good conduct of the militia, whose services were called for, is an honorable confirmation of the efficacy of that precious resource of a free State. And we anxiously wish that the consequences of their successful enterprises, and of the other proceedings to which you have referred, may leave the United States free to pursue the most benevolent policy towards the unhappy and deluded race of people in our neighborhood. The amount of the population of the United States, determined by the returns of the census, is a source of the most pleasing reflections, whether it be viewed in relation to our national safety and respectability, or as a proof of that felicity in the situation of our country, which favors so unexampled a rapidity in its growth. Nor ought any to be insensible to the additional motive suggested by this important fact to perpetuate the free Government established with a wise administration of it, to a portion of the earth which promises such an increase of the number which is to enjoy those blessings within the limits of the United States. We shall proceed with all the respect due to your patriotic recommendations, and with a deep sense of the trust committed to us by our fellow-citizens, to take into consideration the various and important matters falling within the present session; and, in discussing and deciding each, we shall feel every disposition, whilst we are pursuing the public welfare, which must be the supreme object with all our constituents, to accommodate, as far as possible, the means of attaining it to the sentiments and wishes of every part of them. Mr. MADISON, from the committee appointed to wait on the President of the United States, to know when and where it will be convenient for him to receive the Address of this House, in answer to his Speech to both Houses of Congress, reported that the committee had waited on the President, who signified to them that it would be convenient to him to receive the said Address at twelve o'clock to-morrow, at his own house. FRIDAY, October 28. The SPEAKER, attended by the House, then withdrew to the house of the President of the United States, and there presented to him the Address of this House, in answer to his Speech to both Houses of Congress; to which the President made the following reply: _Gentlemen:_ The pleasure I derive from an assurance of your attention to the objects I have recommended to you is doubled by your concurrence in the testimony I have borne to the prosperous condition of our public affairs. Relying on the sanctions of your enlightened judgment, and on your patriotic aid, I shall be the more encouraged in all my endeavors for the public weal, and particularly in those which may be required on my part for executing the salutary measures I anticipate from your present deliberations. G. WASHINGTON. MONDAY, October 31. Several other members, to wit: from Vermont, NATHANIEL NILES and ISRAEL SMITH; from Maryland, UPTON SHERIDINE; from North Carolina, WILLIAM BARRY GROVE; and from South Carolina, ROBERT BARNWELL; appeared, produced their credentials, and took their seats in the House. TUESDAY, November 1. ANTHONY WAYNE, member from Georgia, and JOSIAH PARKER, from Virginia, took their seats this day. THURSDAY, November 3. Two other members, to wit, RICHARD BLAND LEE and JOHN PAGE, from Virginia, appeared, produced their credentials, and took their seats in the House. FRIDAY, November 4. Another member, to wit, EGBERT BENSON, from New York, appeared, produced his credentials, and took his seat in the House. MONDAY, November 7. Several other members, to wit: from Pennsylvania, WILLIAM FINDLAY; from North Carolina, JOHN BAPTIST ASHE; and from Georgia, ABRAHAM BALDWIN; appeared, produced their credentials, and took their seats in the House. TUESDAY, November 8. Another member, to wit, ANDREW GREGG, from Pennsylvania, appeared, produced his credentials, and took his seat in the House. _John Torrey._ The House resolved itself into a Committee of the whole House on the Report of the Secretary of War on the petition of John Torrey, administrator of Major Joseph Torrey, deceased. Mr. AMES objected to the motion for accepting the Report of the Secretary of War. He said, it must be apparent that he was placed by accident in a relation to the subject in debate, which he should not have adopted of choice. With very little knowledge of the parties and their connections, and the interests that would be involved by the decision, he seemed to be considered as standing sponsor for the petitioner. He might justify this active support of the petition, by assigning motives which were common to other gentlemen; but as they have continued silent, I will assign a reason for speaking, which is peculiar to myself. Nothing excites a person to a more fervid defence of his opinions, than the supposed discovery that they are misunderstood, and the force of the reasons on which he had formed them unduly estimated. Congress promised half-pay to the officers who should continue in service _to the end of the war_. This was afterwards made a commutation for half-pay. Major Torrey continued in service till September, 1783, when he died. The question is, did he continue in service to the end of the war? The provisional articles of peace were signed on the 30th November, 1782; but they were to remain without force till terms of peace should be agreed upon between Great Britain and France. This took place on the 30th January, 1783, and the ratifications were exchanged on the 3d February, 1783, at Paris. The provisional treaty between Great Britain and America was then _a treaty of peace_, and according to the words of that treaty was _concluded_. Accordingly, on the 11th April, 1783, Congress by a proclamation made known those facts, and the stipulations made, in regard to the periods when hostilities should cease, by the contracting parties to the treaty. Hostilities did cease, and before the end of April, 1783, all America was in perfect peace. The late hostile nations shook hands, our vessels sailed in safety, and by sea and land reconciliation succeeded to hostility. But did all this put an end to the war? The children in the street would answer this question: they would say, it is peace when it is not war. Of all facts, the most notorious seems to be the state of war; and it is the fact that the war was at an end, (and not any after resolve of Congress,) that the commutation of Major Torrey was made to hinge upon. When the meaning of a bargain is disputed, it is usual to search out the intention of the contracting parties when it was made. Supposing, instead of interpreting a resolve of Congress, any twelve of this body had to try a case between two private persons; suppose that a man had given his note of hand for a sum to be paid at the _end of the war_. Would twelve of this House, or would any jury in the country say that the war continued longer than hostilities? In private life, a man would think it touched his character to refuse paying his note in such case. Surely a government ought to perform its promise with as much delicacy and exactness. Congress did not promise the half-pay, and afterward the commutation, on the condition that a man should serve till they should think proper to say the war was at an end. He depended on the stubborn _fact_ that it did end, which no resolution of Congress could change; and not on the refining opinion when the officers might safely be discharged--for that we see might be differently formed, according to the different views of policy and safety at the time. An officer having this promise of Congress, has a right to this commutation on the cessation of hostilities, in pursuance of the treaty. If this is disputed, the meaning of the words, "_the end of the war_," should be decided as it was understood at the time of the promise. Will any one believe that the 3d November, 1783, was the term, after the state of war and all the treaties which put an end to it, had been long passed? If any doubt still remains, writers on the law of nations should be consulted. For the officer may justly claim an execution of the promise according to law; that is the umpire between Government and the people. On appealing to the law of nations, we find that war is defined to be "the state in which a nation prosecutes its right by force." "Peace is opposed to the state of war--an accommodation is proposed and conditions agreed on, and thus peace puts an end to war." "When the powers at war agree to lay down their arms, the agreement is the treaty of peace." "The general and necessary effects of peace, are the reconciliation of enemies and the cessation of hostilities; it restores the two nations to their natural state." Would any jury in this country say, that the matter of fact and the principles of law were not in favor of the petition? Apply these maxims of law to the case. The provisional articles of November, 1782, were of themselves nothing, it is true, but they were to constitute the treaty of peace, whenever Great Britain and France had agreed on the terms of peace. As these two powers did agree on the 30th January, and ratified the terms on the 3d February, 1783, _then_ the provisional articles, to use the very words of the preamble, did _constitute the treaty of peace_; it was _then_ a _concluded_ thing; and peace in fact took place in the several parts of the world on the appointed days. It has been said, that the preliminaries were no more than a suspension of arms--that the state of war still continues, until a _definitive_ treaty. To this it is answered, that preliminaries bind the national faith; if violated, the perjured faithless nation would kindle a new war. By the law of nations there is not such a distinction as that which is alleged, between preliminary and definitive treaties. Let the authorities for such a distinction be produced by those who make it. But they do not exist--a truce does not put an end to a war--a truce is, however, a suspension of war for a specified term. At the end of this term, the war begins again, of course, without any fresh declaration. But a suspension of hostilities for an indefinite period, is not a truce, but a peace; especially if it is added, that it is agreed upon by the belligerent nations in consequence of a settlement of their disputes, and if it happens in fact that the war is not revived. Those who make so much of a definitive treaty, and so light of preliminaries, should consider that, on their own system, the former is a kind of defeasance which annuls the latter. But when the definitive treaty is signed, the preliminaries, which before were liable to be annulled, now become of force, and the treaty, now become indefeasible, takes its date from the preliminaries. Though this mode of reasoning has not much weight on my mind, it ought to have some with those who have set up the distinction which it is adduced to overthrow. These are the reasons on which I have formed my opinion that the war ended in fact in April, 1783, when hostilities ceased by mutual agreement of the powers at war. My opinion is supported by authority much more reputable than any I can give to it. The law courts in this country have decided it judicially; cases of captured vessels, and the question of interest on British debts, have produced decisions in every State of the Union, unless I am misinformed, that the war ended in March or April, 1783. The courts in England, and in every country where the war spread, on trials of property, have made similar decisions. Major Torrey died in September, 1783; shall this body decide against the settled rule of all the law courts? It remains to remove some objections: It is alleged, that Congress have by various resolves fixed the period of the war, and have declared that the 3d November, 1783, is the term. If they had declared that it should be computed from the end of the world, it would not alter the truth of the fact. _After_ declarations ought not to be received to change their own promises. But a declaration, or a dozen of them, made for another purpose, and not to declare the meaning of the contract, cannot on any principle be received to interpret it. It is not necessary, however, to contend against those resolves of Congress. They are irreconcilable with the former engagement to Major Torrey. In undertaking to reconcile them, I feel that I impose a task on myself, which is made heavy by the prepossessions of many of my friends; I believe the minds of gentlemen are perfectly fair, and well-disposed to doing the petitioner justice. But I hope I shall not be thought to intend any offence, when I remark that certain ideas, such as that this claim is cut off by resolves of Congress, and that on allowing it, confusion would take place in the business of the public offices, were started with the discussion, and they have remained so woven into the texture of the debate, that I think it hard to unravel them. It was soon manifested that there was a general disposition to vote against the petition. This opportunity for debate seems to have been accorded as of grace, rather than as a means of removing any existing doubts of their own. Having adopted these opinions, this is rather a form of refusal than a mode of inquiring; and it seems to have been chosen with every circumstance of decency, and with all possible steadfastness of purpose. Yet I will proceed to state, that the point whether the war was at an end when hostilities ended in April, 1783, being already considered fully, we are to look for other reasons than such as relate to the commutation, to explain the resolves of Congress which continued the service of the officers beyond the end of the war, and as late as November, 1783. A mistake seems to have crept in here. It seems to be supposed that the officers were engaged to serve to the end of the war, just long enough to secure their commutation. But the commutation depended on one thing--the term of their service on another. The former was their right at the end of the war; but they were to remain in service till dismissed, unless they should think fit sooner to resign. They held their commissions during the pleasure of Congress. Though when the war ended they had a right to the commutation, they had no right to say their service was at an end. They did not choose to resign: Congress, for wise reasons, did not choose to dismiss them. A foreign army was still in New York. They were sent home on furlough, but drawing pay, and liable to be called into the field. Congress, in their resolves, did not say that it was not peace, but in effect that it was unsafe to disarm. Gentlemen are not well agreed among themselves as to the end of the war. Some fix it at the definitive treaty of September 3, 1783; others at November 3. Their conclusions agree as illy with their principles; for if the definitive treaty put an end to the war, how can the same gentlemen say that the war was kept alive, on the journals of Congress, till November, 1783? Here, then, were Peace and War subsisting quietly together during two months. The fears of making confusion by opening a door to many applications, seem to be groundless. A man must have died between the end of hostilities and November, 1783, to place a claim on the like footing. The living have had their commutations; they cannot come: and no other officer died in that period, as far as I can learn. I have inquired, and cannot find at the office of the Secretary of War any precedent which militates with this claim, or any reason to suppose that any similar one will be offered. The case is a new one; it stands alone, and probably ever will, and it must be decided on its own merits. Believing the fact to be indisputable that Major Torrey served to the end of the war, confiding in the principles of the law of nations, and the settled decisions of the Judicial Courts, I have endeavored to explain my ideas with perspicuity, and to impress them with force. I have said more than questions touching an individual will often be found to merit; but when public principles are construed to the prejudice of private rights, the debate cannot be treated too seriously. Mr. BOUDINOT said, he differed in opinion from the gentleman in his construction of the business. He did not coincide in the idea that the decision of the present question should be on a strictly judicial principle. The petition is founded on certain resolutions and laws of Congress; and as there are certain established rules which have been observed in settling with every other officer similarly circumstanced, Congress cannot now with propriety break through those rules; to these they ought to adhere, till by the decision of some judicial court it shall appear that they are contrary to the rules of justice. [Here Mr. AMES requested Mr. BOUDINOT to point out the rules to which he referred.] Mr. B. referred to the report now under consideration, which was founded on a resolution of Congress, that the time for which the army was engaged should expire in November, 1783. This has been made a rule in all the settlements with the officers of the army. The terms of the contract, between the officers and the United States, depended, he said, on the decision of the sovereign power; that was authorized alone to determine when the war should cease. That power was vested in the then existing Congress, who, although they entered into provisional articles in November, 1783, did not, however, think proper immediately to disband their armies or put an end to the war, as it was yet uncertain whether those provisional articles would be ratified by Great Britain, or a treaty of peace concluded between Great Britain and France; a circumstance which was necessary before those articles could be definitively binding. It was only when the definitive treaty was made, that Congress determined the period of the war. The army, when finally disbanded and paid up to that day, acknowledged, by accepting their pay, that it was then only the war ended; and, as far as was in their power, assented to the principle which he maintained, that the provisional articles had not before put an end to the war. Suppose that, on the arrival of the definitive treaty, Congress had not agreed to the terms, would the war have then been considered as at an end? Would not Congress have been in the same situation as before the signing of the provisional articles? It was necessary that Congress should, by a definitive act, determine when the war ceased. Congress had passed such an act; and the House at present cannot with propriety enter into a resolution to alter the period. The argument of inconvenience ought also to have some weight with the House; for if any alteration were now to be made in the law, it must have a retrospect to all the widows and children of deceased officers, who have received half pay for years past. Besides, many officers who have not hitherto considered themselves as entitled to half pay, would, in consequence of such an alteration, have a right to apply for it. Mr. LAURANCE said, he doubted not the gentleman who supported the petition was fully satisfied as to the justice of the claim which he advocated with so much ardor; he begged leave to state his opinion, however, on the subject, in which he should differ from that gentleman. The contract with the officers of the late army was, that those should be entitled to certain benefits who served to the end of the war. But Major Torrey was not thus circumstanced, as he died previous to the period when the war ceased, and left neither widow nor orphan to receive the benefit of the provisions allowed by law; his case is not contemplated by any existing resolution of Congress. It is well known that hostilities ceased at the time of publishing the provisional articles which formed the basis for the treaty of peace; but can any man say that every soldier had a right on that event to demand a discharge? Surely not. The provisional articles had the peace in contemplation, but the army was not to be discharged till the articles of the definitive treaty were ratified by the belligerent powers. The army of the United States was, therefore, only furloughed, and Congress retained the power of recalling them into service; and had the officers and soldiers been recalled from their furloughs to take the field, it would have been a continuance of the same war; but if the definitive treaty had been signed, and hostilities had commenced the very next day, it would have been a new war, and would have been prosecuted on entirely new principles. The second article of the provisional treaty looks forward to a _future_ period for a conclusion of the war; and he inferred, that the definitive articles being ratified, and the ratifications exchanged, alone constituted a termination of the war. Mr. L. added some observations on the legal ideas of Mr. Ames, in which he also differed from that gentleman; and concluded by expressing his approbation of the Report of the Secretary of War. Mr. AMES's remarks were further combated by Mr. WILLIAMSON, Mr. DAYTON, Mr. HILLHOUSE, Mr. WADSWORTH, Mr. CLARK, and Mr. WHITE. Mr. WAYNE was opposed to the report, and stated certain particulars to show that the army was not furloughed by Congress because it was apprehended there would be any further demand for their services, but because it was inconvenient to give them an absolute discharge at that period. The motion for accepting the Secretary's Report was carried by a large majority. WEDNESDAY, November 9. Two other members, to wit: from Maryland, WILLIAM VANS MURRAY; and from South Carolina, THOMAS SUMTER; appeared, produced their credentials, and took their seats in the House. The Speaker laid before the House a letter from the Governor of Maryland, enclosing a letter to him from WILLIAM PINKNEY, a member returned to serve in this House for the said State, containing his resignation of that appointment; also a return of JOHN FRANCIS MERCER, elected a member to serve in this House, in the room of the said WILLIAM PINKNEY: which were read, and ordered to be referred to the standing Committee of Elections. THURSDAY, November 10. _The Census._ The House again resolved itself into a Committee of the whole House on the Schedule of the Enumeration of the Inhabitants of the United States. Mr. LAURANCE had previously moved, that until the next enumeration the number of Representatives should be one for every thirty thousand persons. Mr. DAYTON moved to strike out "thirty," before "thousand." This amendment was under consideration. Mr. GERRY observed, that in all the decisions of the Legislature, we ought to follow as far as possible the opinion of the great body of the people. If this opinion should be found to be against the ratio of thirty thousand, the amendment ought to be adopted; but if we refer to the amendments, proposed by the Conventions to the constitution, we shall find that five States are in favor of one Representative to every thirty thousand persons, till the number should amount to two hundred. None of the propositions now moved as amendments to the motion of the gentleman from New York, amount to that number. Several others of the Conventions were of opinion that the representation was too small to secure the liberties of this country. This Government, said he, is a Government of representation; the people may control their Representatives, but their influence is small in respect to the Senate and the Executive, and still less over the officers of Government. On what then do the people depend for checking encroachments, or preventing abuses? On their Representatives? If these should be too few, or if they should fail them, they never can redress their grievances without having recourse to violence. If the number is small, a majority may be the more easily corrupted. On the other hand, too large a number will be attended with difficulties; a medium then is most eligible. An adequate number is absolutely necessary; and to show that one to thirty thousand would not produce more than an adequate number, he referred to the ratio of representation in England and France, in which there was a greater proportion of Representatives than in the Legislature of the United States. He then adverted to the objection arising from the additional expense; but, he observed, after Congress shall have passed a few more of the most important acts, it is not probable that the public business will in future require that the sessions should be for more than four months annually; this would reduce the expense greatly, in the first instance; and, agreeably to a calculation, an addition of forty-seven members to the present number, would make the aggregate expense but about one-eighteenth part more than at present, supposing the sessions to be four months long. But he considered the objection on account of the expense as merely speculative. Although Congress is not positively bound by the constitution to give one member for every thirty thousand inhabitants, yet he would ask, whether the citizens of the United States did not expect that this ratio would be adopted? and whether they would not consider it as an abuse of power, if Congress, instead of one to thirty thousand, should settle the representation at one to forty thousand? Eight States have already adopted the first article of the proposed amendments to the constitution: and if the House should either settle the number of the Representative body, as it now stands, or reduce it, or establish it at one hundred, perhaps they might, before the end of the session, be obliged to repeal their act--as they would be bound by the amendment, as soon as it is ratified by a sufficient number of States. If gentlemen thought it probable that the proposed amendment would be ratified by the several States, they ought already to consider it as a rule for their conduct, and be restrained by it, from giving less than one Representative for thirty thousand inhabitants. After the representation amounts to one hundred, Congress will, no doubt, have a right to fix it there, until it is increased by the ratio of one to forty thousand: but that is a power which, he presumed, Congress will not exercise; but that they then will establish some ratio, by which the increase of representation shall keep pace with the increase of population, until the House consists of two hundred members. Mr. BOUDINOT was convinced of the propriety of striking out the word "thirty." The House ought to consider what would be an adequate number for doing the business of the Union; and that number ought not to be exceeded, except to answer some very valuable purpose. Business would proceed with difficulty, if the representation was so numerous as it would become by the ratio of one to thirty thousand. The present representation of the United States is in a ratio very different from that of one to thirty thousand; and yet he thought it fully adequate. From a rough calculation, the ratio of thirty thousand would produce one hundred and thirteen members; thirty-five thousand would give ninety-seven; and forty thousand would produce eighty-one. If the number once settled was to rest there, he would not be over anxious to oppose the increase; but if gentlemen would take into view the increase consequent on the next enumeration, they would find that the number will by far exceed the due bounds. He thought the people of the United States would be duly represented, and to their entire satisfaction, if the ratio was set higher than thirty thousand; nor could he imagine that such an exact proportion, between the Representatives and the represented, was at all requisite to secure their liberties, or to do the necessary business of Government. This indeed might be the case, if the power vested in Congress was proportionate to their number; but, since the House would possess the same powers, whether it consisted of a greater or a smaller number, he thought the people equally secure in either case. The ratio of thirty-five thousand, which would produce ninety-seven members, would, in his opinion, be a very proper one. If, however, the people should think otherwise, they had it in their power to correct the mistake, by ratifying the proposed amendment. Their not having as yet ratified it, was to him an argument that they thought the ratio too low; or, at least, that they considered the question as doubtful. Some of the States, he observed, have postponed the consideration of the amendment; and eight only have as yet agreed to it. On the whole, the House might safely adopt the ratio of one to thirty-five thousand; for that the increasing population of the United States would ever supply a representation sufficiently numerous to answer every good purpose. Mr. CLARK observed, that his objection was not merely on account of the pay of the members, but an increase in the representation would bring an additional expense on the people, by increasing the number of public officers; as almost every man would wish to see his friend provided for. The liberties of America could be in no danger from the present ratio of representation. The doors of the House are open, and the people know what their Representatives are doing. Mr. STEELE was in favor of the motion for striking out _thirty_. In discussing the important subject before the committee, he observed that there were two inquiries to be attended to: What is the proper number to constitute a Representative body for the United States, and what ratio will leave the fewest fractions in the respective States? One member to thirty thousand, he conceived, would give too numerous a representation. According to the present number of inhabitants, it will almost double the present number; it will divide and diminish the responsibility, make the House too unwieldy, retard public business, and increase the public expenses unnecessarily. An adequate representation, he thought, would be comprised within a much smaller number. Gentlemen have called our attention to the House of Commons of Great Britain, and the National Assembly of France; but God forbid that we should draw our precedents from such examples as may be cited from European representation. He was opposed to thirty thousand as the ratio: it would, in fractions, throughout the United States, leave above three hundred and sixty-nine thousand citizens unrepresented. Thirty-five thousand he thought the most eligible number, as it would leave the fewest fractions. Mr. LAURANCE agreed that an adequate number was the great object to be attended to; but he contended that the original motion would give this number more completely than a larger ratio: and it ought to be considered, that, before the next enumeration, it will not be probably more than one to fifty thousand. As to the increase of expense, he observed that the great objects being accomplished, the future sessions will be short; besides which, the compensation of the members may be diminished. But he considered a necessary increase in the expense to be fully counterbalanced by affording greater security to the liberties of the people. The firmness of a government depends on a strong Executive; but this Executive should be founded on a broad bottom; and the broader the basis, the more secure is the public freedom under a vigorous Executive. The existence of the Union may depend on the fullness of the representation. The inequality in the proportional increase of the number of inhabitants in different States, ought also to be taken into consideration; for it is very probable that in a short time, while some of the smaller States had a Representative for every thirty thousand, others would not have one to forty thousand. He was governed by general principles, and not by any calculations of fractional numbers: the constitution contemplates the ratio he had proposed, and therefore he hoped the motion for striking out would not obtain. Mr. GOODHUE observed, that the situation and circumstances of the Government of the United States are so different from those of France or Great Britain, that no parallel could be drawn respecting them. Nor is there an absolute similarity between this Government and those of the State Governments. The objects of legislation which come under the cognizance of Congress, are but few compared with those which engage the British House of Commons and the National Assembly of France. A much larger representation for them, and in our State Legislatures, is therefore more proper, than is necessary for us in the General Government. He doubted the opinion that a large representation was less liable to corruption than a small one: some facts appear to confirm the former sentiment. He did not consider the expense as a material objection, if an increase of the number be necessary to doing more ample justice, or for the greater security of the liberties of the people; but, as he thought this was by no means the case, he was in favor of striking out "thirty," in order to insert a larger number. Mr. BARNWELL agreed with the gentleman last up. He should vote for striking out "thirty," in order to substitute the largest number that had been mentioned. Mr. B. entered into an abstract and philosophical discussion of the principle of representation in Government. The leading sentiment was, that a large proportion of Representatives is not necessary to obtain the best objects of legislation, in expressing the will of the people, or to secure the liberties of the constituent body. The great point, he observed, was, to combine the greatest portion of honesty with a due degree of activity. That number which would comprise a due proportion of these, would be competent to all the purposes of legislation, whether the number for which it legislates is ten thousand, or five hundred thousand. On this principle, he was decidedly against a large number, and in favor of a small one. Adverting to the British House of Commons and the National Assembly of France, with respect to the former, he said, their corruption is, in a great degree, owing to their numbers: as to the latter, he observed, that the National Assembly had acted, in his opinion, politically and wisely. They set out with a large representation, in conformity to the sentiments of the people at the moment; but, on experience, finding the number too great, they have reduced it from twelve hundred to about two hundred and fifty. He believed that the general sense of the people was against a large representation in Congress; the inconveniences experienced from numerous bodies in the State Legislatures have led several of the States to lessen the number. He instanced Georgia, South Carolina, and Pennsylvania. Mr. BALDWIN was opposed to the motion. One Representative for thirty thousand appeared to him by no means a great representation. The opinion that, of late, had been so often advanced from the press, and in public discussion, for reducing the Representative branch in Government to a small number, he held to be full of dangerous error. He was sensible that the terms great and small were so merely relative in their signification, that it was difficult precisely to understand each other in the use of them. Perhaps they may most properly, both of them, be considered as extremes. No doubt representation, which of late seems to be used as the character of Republican Government, is a great improvement upon Democracy, or legislation by the whole body of the people. He could conceive that a representation might be so large as to partake of the evils of assembling the whole body of the people; but it was a very improbable and not a dangerous extreme: the other extreme was full of danger. These observations acquire much force, when applied particularly to the Governments of this country: enfeeble the representative part of them, and you sap the very principles of life. They stand on a different basis from the Governments which have gone before them, and may justly be said to be new experiments in government; time, as yet, has scarcely given room to judge of the probable issue; but this we may pronounce with much certainty--Let the principles of representation languish, and they have no chance of success. It had not been found practicable to ground representation in the Federal Constitution upon any other principle than that of numbers; but extent of territory is unquestionably one of the natural principles on which it rests, and should if possible be regarded. One for thirty-four or thirty-five thousand may be deemed a proper representation in the Kingdom of France, or of Great Britain. The four millions which compose the United States, compactly settled where there was great sameness in the country, and pretty equally distant from a common centre, would be properly represented by a smaller number than in their present sparse settlement. But still further: the settlement of the United States is a fillet stretched along the sea-coast for seventeen hundred miles, comprehending as great a variety of climate and interests as one of the other quarters of the globe. It is difficult to conceive of a situation which calls for a greater extension of the principle of representation. It has been said, that one for thirty thousand will make too large and unwieldy a body. He was sensible that was a point that did not admit of being determined by any conclusive reasoning; it was a mere matter of opinion; sound judgment only is to be used, time and experience will come on and confirm or correct the opinion. In such a case, it is wise to inquire how this has been judged of by others who have had a Representative body. In France, one thousand two hundred was not thought too great a representation in forming their National Assembly; and the number established by their new constitution for their stated Legislature was not two hundred and fifty, as the member last up had stated, but, if he had not been misinformed by the publications in this country, it was nearly seven hundred and fifty. In the Kingdom of Great Britain, five hundred is not thought too great a representation: and can one hundred and thirteen, which is the greatest number contended for, be considered in this country as a huge and impracticable mass of representation? It had ever appeared to him to be among the strongest marks of our youth and inexperience, that we grow wise too suddenly. He was afraid this instantaneous wisdom which sprung up so at once, and set at nought, or removed to the extreme of absurdity and folly, the deliberate and tried opinions of the most profound and enlightened among men, in circumstances peculiarly favorable to honest decision, will itself be left by time on that extreme. The Federal Government, it must be admitted, is in fact pretty highly seasoned with prerogative; practice has already evinced the necessity, in many instances, of increasing it, by devolving much of the Legislative power upon the Executive Department, arising from the difficulty of making particular provisions and details in our laws, and accommodating them to the various interests of so extensive a country. The other branch of the Legislature has many traits of a perpetual--at least of a very solid constituent part of the Government. He did not mention these as imperfections in the Government; they are perfections, if the other parts can be in due proportion: but it is surely a sound reason against taking positive measures at this time to diminish the Representative branch. For his own part, he was not well satisfied as to the intention. If there is any reason to apprehend that the Government will depart from the point on which it was first placed, he could scarcely suppose that any one could be honestly alarmed with the fear that the departure would be towards Democracy. He concluded, by expressing his hopes that the representation to the next Congress would be fixed at one for thirty thousand, as it had hitherto been, and that the motion for striking out would not prevail. FRIDAY, November 11. JOHN W. KITTERA, from Pennsylvania, appeared, produced his credentials, and took his seat in the House to-day. MONDAY, November 14. A petition of James Jackson, of the State of Georgia, was presented to the House and read, complaining of the undue election and return of ANTHONY WAYNE, one of the members returned to serve in this House for the said State. _Ratio of Representation._ The House again resolved itself into a Committee of the whole House on the Schedule of the Enumeration of the Inhabitants of the United States. Mr. FINDLAY declared himself to be in favor of one Representative for every thirty thousand persons. The opinion of the people should be the guide of the committee; that opinion, he conceived, to be in favor of the ratio he had mentioned. The representation ought as nearly as possible to express not only the will, but to participate in the wishes and interests of the people. A large representation embraces these interests more fully, and is more competent to giving and receiving information. The objects of legislation are such as come home to the doors, to the feelings of every man; the Government ought therefore to secure the confidence of the people by a large representation. The expense he considered as trifling compared to the benefits--and the people expect and are willing to pay for being well governed, and having their liberties secured. An increased representation is an additional security against corruption. As to delays occasioned by a numerous body, he observed that the Representatives were chosen to deliberate and to mature every subject before decision; he instanced the advantages derived from the numerous representations in France and in Ireland; the former had framed a constitution in two years for twenty-six millions of citizens, and provided for securing the liberties of their country--and the latter had proved a successful barrier against the encroachments of the arbitrary power of England. He concluded, by asserting that the voice of the people was in favor of the amendment proposed to the constitution, which would give one Representative to every thirty thousand persons. Mr. GILES said this subject had struck him in two points of view: whether Congress are not precluded from exercising any discretion on the subject? and whether, if they are not, it is expedient for them to exercise this discretion at this time? The ratio of representation is a constitutional, and not a Legislative act. He referred to the constitution, in which it is said that there shall be one Representative to every State; and, secondly, that until the enumeration, the number should be as therein appointed to each State. After the enumeration, the number is mentioned below which it shall not be placed; but there is a negative power to increase the ratio, and from this negative power, a positive discretionary power is inferred. But, he observed that Congress had precluded itself from a right to exercise this discretionary power, by sending out to the several State Legislatures an amendment on this very subject. This amendment he considered in a serious point of view; and had this idea been attended to at the commencement of the discussion, he conceived that it would have prevented the opinion from being brought forward whether it was expedient that any change in the ratio of the representation should take place. The idea of one to thirty thousand, he considered as fully settled in the minds of the people; and a change on the part of the Government would indicate a changeable disposition, and a mutability of counsels, which is but another name for weakness. Mr. G. then took a view of the objects of legislation to the State Assemblies, and of those of the General Government. In the former, above one thousand persons are employed, though their attention is confined to their internal police. Those of the General Government, on the other hand, are on the great objects of the whole finance of the Union, a sum of more than eighty millions of dollars, &c., &c. It is said that we shall want abilities, but I should be sorry if a representation of ten times the present number of this House should comprise the abilities of a single State. He assigned different causes than numbers, for the corruption in the British House of Commons; among these were the frequent mortgages of the funds, and the immense appropriations at the disposal of the Executive, the mode of their elections, &c. A large number is not so easily corrupted as a small body. An inequality of circumstances, he then observed, produces revolutions in Government, from Democracy to Aristocracy and Monarchy. Great wealth produces a desire of distinctions, rank, and titles. The revolutions in property in this country have created a prodigious inequality of circumstances. Government has contributed to this inequality; the Bank of the United States is a most important machine in promoting the objects of this moneyed interest. This bank will be the most powerful engine to corrupt this House. Some of the members are directors of this institution; and it will only be by increasing the representation that an adequate barrier can be opposed to this moneyed interest. He next adverted to certain ideas which he said had been disseminated through the United States; and here he took occasion to observe, that the Legislature ought to express some public disapprobation of these opinions. The strong Executive of this Government ought to be balanced by a full representation in this House. He hoped the motion to strike out thirty thousand would not obtain. Mr. BOUDINOT closed the debate of this day by a few remarks, reinforcing his former observations in favor of an increased ratio. TUESDAY, November 15. _Ratio of Representation._ The House again resolved itself into a committee of the whole House on the Schedule of the Enumeration of the Inhabitants of the United States. Mr. PAGE addressed the Chair as follows: Mr. CHAIRMAN: I can no longer refrain from expressing my sentiments respecting the question before the committee; not only because I wish if possible to remove the error which I think several members, for whom I have the highest respect, have fallen into, but because I feel myself more interested in the question than I ever was in any one I have had to decide on. Sir, it gave me pain to find those worthy members calculating and coldly applying the rules of arithmetic to a subject beyond the power of numbers to express the degree of its importance to their fellow-citizens. I was distressed, sir, to find that, in their honest zeal for securing order, despatch of business, and dignity in respectability of members in the General Legislature, they used arguments which have been applied in other countries to the establishment of insolent aristocracies--in some, tyrannical despotisms--and in others, kings; those countries which were most on their guard with a semblance of a free Government. Sir, the errors I wish to correct are these. They think that because it is _proposed_, by a _proposed_ amendment to the constitution, to authorize them to interfere in the business of ascertaining and fixing the ratio of representation to the population of the States, that Congress ought, without any hesitation, to enter on that business; but I humbly conceive that Congress, as this is a delicate question in which their own weight and importance must unite with the weight and substantial interest of their constituents, ought to listen to the suggestions of delicacy, and leave its discussion to a disinterested convention of the States. I say it appears to me no small error to quit the plain path of legislation, marked out for us by the constitution, needlessly to wander into the field of political speculation respecting its supposed defects. Let me, therefore, advise to leave the restriction of the numbers of members of this House to the people, or to some future Congress, which can see more plainly than can now be descried, the evils of a too numerous representation. By so doing, we shall avoid, if not an improper measure, at least a rash step--at least we shall stand clear of a charge of indelicacy, and deprive our enemies of the triumph they expected in the completion of their predictions, that Congress would never propose any amendments to the constitution but such as would be subservient to their own views and aggrandizement. Let us not give the enemies of our new Government cause to exult, and its friends to sigh and mourn. Let us not give our friends occasion to repeat what many have said, that so many of our citizens have been led away by theoretical writers on government, as to render it problematical whether the American States are not at this time as much indebted to the National Assembly for its remains of Republican principles, as France was to Congress, in 1776, for their first ideas of that liberty which they now enjoy. Let us not, in this moment of general exultation of the friends to the rights of man, take a step which may damp their joy, and lead them to fear that Americans, who were foremost in the glorious career of liberty, have stopped short. But, not to take up the precious time of this House with relations of facts to show what was and is the opinion of our fellow-citizens on this interesting subject, I will only state a few arguments which have weight with me as being in themselves evident truths, viz: Our constitution being framed by the people, and introduced to us in their name, and Congress being the creatures of their will, spoken into existence by the word of their power, for Congress to lessen _their_ weight, to diminish their importance, and to exclude them from as full a share in their own Government as can be consistent with the nature of it, and indeed from that share which they claim, must be impolitic and dangerous. But, granting that the people wished not a greater share in the General Government than is proposed by the amendment, as it is impossible, in a country like the United States, that one man can be sufficiently informed of the opinions, wishes, and real interests of thirty-five thousand of his fellow-citizens, and therefore laws might be enacted contrary to the opinions, wishes, and interests of the people, in which they might nevertheless acquiesce, sacrificing their interests for the sake of peace and quiet to the wills of their Representatives, one thirty-five-thousandth part of their own number, what friend to his country would wish to see such a dangerous influence on the one hand, and such a blind submission on the other? How long could an enlightened people remain in such a state of insensibility and torpor? And what might not be the consequence of their awakening from their lethargy? If not an expensive revolution, an expensive repeal of laws. And here I will remark, that the smallest number of Legislators, and they, too, well selected for their wisdom and respectability, if unacquainted with their constituents, might pass well-framed laws, founded on the wisdom of other countries, and yet find them disagreeable to their constituents, and be under a necessity of repealing them; but this could not be the case, if the people had in that Legislature a sufficient number of Representatives on whose fidelity, attachment, and disinterestedness they could rely. This, sir, is a truth worthy of our attention--an ignorance of which, or inattention thereto, I suspect has been the occasion of much political evil in the world. Happily for France, the people had such a number of Representatives in the National Assembly as could engage their feeling, inform their judgment, attach their interest, and establish their confidence in their fidelity and disinterestedness; had that number been much smaller, it is probable France would never have been delivered from oppression by their exertions. I know, sir, that many friends of our constitution thought that the convention did not pay a sufficient attention to the interests of their constituents, when they restrained them from having more than one Representative for every thirty thousand citizens. I know that there is a report that the people are indebted to their President, even for this share in their Government; and I believe, sir, if this report be true, that whatever has been so justly said of him, as compared to Fabius, to Hannibal, to Alexander, may be forgotten, when this instance of his wisdom, disinterestedness, and attachment to the interests of his fellow-citizens, will be more and more known and applauded, and be for ever engraved on the hearts of their posterity. Shall we, then, Mr. Chairman, the direct Representatives of the people, be less attentive to their interest, and that too respecting their share in the deliberations of their own House of Representatives, than the President of their convention was? I trust not. I will not pretend to say, however, whether in an Assembly where attempts are frequently made to carry into effect the projects of monarchical or aristocratical juntos, the virtuous struggles of patriotic members may not produce mob-like disorders; but in an Assembly like Congress, where I should suppose no such question can be agitated; none which may not be discussed with temper and decency, such disorder need not be apprehended. I should suppose there would be less clanger of animosities and disorderly debates in Congress, amongst twelve hundred members, than in the British Parliament, if it consisted but of one hundred. Where we have all but one and the same great object in view, the happiness of our country, (not the interests of a particular body of men born with privileges insulting to the feelings and rights of freemen, nor the whims of an individual, born to trample on his fellow-creatures,) we can have no cause to be dissatisfied with one another. Surely, sir, unless these gentlemen suppose the members of Congress void of sense, or of every idea of decency and propriety, they cannot suppose that even five hundred members would not be easily restrained within the bounds of order. Mr. CLARK said, he did not rise to trouble the House with a lengthy discourse, for he had always believed that long speeches answer no valuable purpose. He meant only to offer a few remarks on what had been said in opposition to his former observations, and he hoped that, although the gentlemen contend for the ratio of 30,000 as the only basis whereon to found the liberties of the people, he should not be stigmatized with the name of an aristocrat for voting in favor of a large ratio. Hitherto he had not borne that character, and he could not suppose himself yet infected, unless he had caught the disorder since he became a member of the present House. Much has been said about the influence of the bank, and that bank directors are members of the House of Representatives. The bank (said he) is public property, and therefore he could not see the force of the gentleman's arguments respecting the dangerous influence of that institution, unless it was that he was displeased at the distribution of the shares, so much of the stock being held at New York and to the eastward, and so little at Conococheague. In the same predicament he viewed the other objections respecting the influence of speculators; for he did not know that any members of the House were speculators, neither could he see any danger from bribery. In reply to Mr. FINDLAY'S observation, that more wisdom would be brought into the House by increasing the ratio, he asked whether this would not also bring in more folly? For the probability is, that the ratio of both wisdom and folly will increase with the increase of numbers, and likewise of honesty and dishonesty; and with respect to the smallness of the district, or that it was safer for a small number to send a member than a greater, he was of a different opinion, as he believed that if ever the practice of bribery should come into play in America, it would be easier for a Representative to purchase a small district than a large one. If ever the liberties of the people are endangered, it will not be by the smallness of the representation, but by the corruption of electors and elections. This is the door which Congress should guard in the strictest manner, and that will secure the people against corruption in the House. A gentleman from Georgia has observed, that the disposition of a great many millions of dollars has been in the hands of a quorum of this House, of whom it requires only seventeen to form a majority. On this Mr. C. observed, that the old Congress, which was composed of a much smaller number, were intrusted with the disposal of larger sums, although there were sometimes only two members from the largest State, Virginia, and no complaints were heard of their conduct. But there is an argument which ought to have weight in the present question. The Senate, although a much smaller body than this House, are fully competent to judge of our proceedings, and of the safety of the country. Indeed, (said Mr. C.,) it appears very evident to me that we are not in want of a larger number in the House of Representatives to debate any question, if it be considered how much has already been said on the subject now before us. Mr. VINING expressed much surprise that the subject, which to him appeared perfectly definable, should have occasioned the debate to travel so widely from the line marked out by the constitution. The pendulum seems to vibrate between the numbers 81, 96, and 113; and should that pendulum rest on any one of them in preference to the others, he could not suppose that it would affect the liberties of America. Why, therefore, all this extraneous argument about a point of so easy decision? We are sent here to administer the Government, the first principles of which are already fixed, so that neither branch can encroach on the other. The Senate, the House of Representatives, the President, have each defined powers; and whilst those remain, I shall always believe the liberties of America are invulnerable. Under this impression, Mr. Chairman, I shall vote for striking out 30,000, in order to accommodate the question to a medium. But I shall do this on different principles from some other gentlemen; notwithstanding, I at the same time confess that the ratification of the first amendment to the constitution ought to govern us in deciding this question. The spirit of the amendment appears to me clearly to imply that we should not suffer the number of Representatives to exceed one for 30,000. I am here, not as a person who shall exercise discretionary opinions, but judge by the letter of the constitution. And in this case we may increase the number, but we cannot make it less after the enumeration. In the mean time, until that enumeration is complete, the representation remains as it has been hitherto, which I believe may be about one member to every 40,000 or 41,000. If we go upon theory only, I would enlarge the representation to its greatest extent, and hand down the principle to futurity, in letters of gold, that a very great representation--that Democracy is the very best Government that can possibly be devised, provided it were practicable to give it stability. Next to a government as free as theory could extend, we have the freest in the world--a Government of representation, which will increase with the population of the country, and the ten new States will always preserve an equilibrium; but if you increase it to an extreme, you may render it tumultuous, although it may be safe. I cannot, however, see the propriety of comparing this to the Government of Great Britain, although that is called a Government of Representation, consisting of two Houses of Parliament, one of which is elective, the Lords are hereditary, and the King can do no wrong; and it has hitherto been, I believe, the next best Government, after our own, in the world. And yet we know with how much reluctance Ireland obtained a participation of the trade and commerce of Great Britain; although a FLOOD bellowed forth with the voice of liberty like a Demosthenes, still nothing could induce the British Ministry to give way, until the _volunteers_ effected it. And have we not the volunteers, sir, in this country to protect our rights? Yes, sir, the American volunteers are perfectly competent to this service. I am under no apprehensions from the stockholders of the bank, or the speculators in the funds; for it is their interest to have a wise and good representation. The people who are employed in the more simple path of agriculture, removed at a great distance, are not more interested in the security of the Government than the more informed stockholder. As an example of the discernment of the great commercial people of London and Bristol, I need only mention their choice of a FOX and a BURKE, for until a late day Mr. Burke was the champion of the people and the friend of liberty. If our Senate should take any unwarrantable stride towards aristocracy, have we not the power to check them? No President can very well attempt it at any time hereafter; and we are perfectly secure in the present time from all suspicion of corruption. Mr. HILLHOUSE said he had ever been a friend to a Republican form of Government, and God forbid, that he should ever give his vote for any measure that should endanger the liberties of his country. He was in favor of an energetic government, as that alone can secure the blessings of liberty. As to the dread of corruption in this House, which some gentlemen appeared to entertain, he thought there was no foundation for such an apprehension; at least as the idea refers to one or two hundred Representatives--two hundred he contended, were as easily corrupted as one. But the corruption contemplated was a mere matter of opinion; no facts, he presumed, existed in this country to justify a positive assertion; and as to foreign countries, it seems to be conceded that a larger number than any that has been mentioned is susceptible of undue influence. He then adverted to the restrictions on the President of the United States, and the Senate, in respect to the means of corrupting the Legislature. The constitution has also made provision to secure the independence of the members, &c. He then urged some difficulties which would be occasioned by a small ratio. He observed that the population of some of the States is nearly stationary: if a small ratio is now established, the consequence will be, when it is augmented, that the representation of those States must be diminished. This would be a measure that would be greatly disliked. With respect to the proposed amendment, he thought it was entirely out of the question, till it was ratified by three-fourths of the States. A very numerous representation would tend to weaken, if not destroy the State Governments, and, in the issue, would destroy the General Government. For, said he, they mutually depend on each other for support. Mr. KITCHELL was in favor of a numerous representation. He thought the amendment proposed to the constitution ought to be the guide to the House on this occasion. He did not draw his ideas of what should constitute a proper representation, from the examples cited from foreign countries; nor was he actuated by an apprehension of corruption, as more applicable to a small number than to a large one; but when he considered the various objects, views, denominations, professions, callings and interests of the citizens of the United States, he was fully convinced that a large representation was necessary to embrace the wishes and answer the expectations of the people. He should, therefore, vote against the motion for striking out thirty thousand. Mr. GERRY took a general survey of the arguments against the proposed ratio of one to thirty thousand. In noticing the objection from the instability of the State Legislatures, he said it was not owing to their numbers, but to the mode in which they are elected. Were the Senates and Executives of the several States chosen as those of the General Government, there would have been as much stability and consistency in their transactions, as in those of the Government of the Union. A gentleman had said that the proposed amendments to the constitution had been adopted with reluctance by some of the States which had accepted them. He called on the gentleman to produce his authorities for this assertion. A relative proportion between the members of the House and the Senate had been suggested; this idea had no foundation in the constitution. And he further observed, that the constitution has so completely guarded and secured the rights and independence of the Senate, that he could not conceive of the apprehensions of gentlemen, who appear to think that an increase of the members of this House will overwhelm that branch of the Legislature. In all events, the privileges of that body will remain the same. The States, it is said, have reduced their Representative Assemblies. This, so far from being an argument against the proposed ratio, was directly in favor of it. The diminution of the State Legislatures has been occasioned by the idea which the people entertain of the increasing importance of the General Government. The objects of legislation to both Governments are nearly similar; they relate to those important concerns which interest the feelings of every citizen of the United States; all the difference lies in the magnitude of their respective spheres of action. Hence, it must evidently be the wish and expectation of the people, that their interests in every point of view, should be fully and adequately represented in this House. The resolution being again read, in the following words: "_Resolved_, That the number of Representatives shall, until the next enumeration, be one for thirty thousand." The question was taken thereupon and agreed to by the House; yeas 35, nays 23, as follows: YEAS.--Abraham Baldwin, Egbert Benson, John Brown, William Findlay, Thomas Fitzsimons, Elbridge Gerry, William B. Giles, James Gordon, Andrew Gregg, Samuel Griffin, Daniel Heister, Daniel Huger, Israel Jacobs, Aaron Kitchell, John W. Kittera, John Laurance, Amasa Learned, Richard Bland Lee, James Madison, Andrew Moore, Frederick Augustus Muhlenberg, William Vans Murray, John Page, Josiah Parker, Joshua Seney, Upton Sheridine, Thomas Sumter, Peter Sylvester, Thomas Tredwell, Thomas Tudor Tucker, Abraham Venable, Jeremiah Wadsworth, Anthony Wayne, Alexander White, and Francis Willis. NAYS.--Fisher Ames, John Baptist Ashe, Robert Barnwell, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Abraham Clark, Nicholas Gilman, Benjamin Goodhue, William Barry Grove, James Hillhouse, Samuel Livermore, Nathaniel Macon, Nathaniel Niles, Theodore Sedgwick, Jeremiah Smith, Israel Smith, William Smith, John Steele, Jonathan Sturges, George Thatcher, John Vining, and Artemas Ward. _Ordered_, That a bill or bills be brought in pursuant to the said resolution; and that Mr. PAGE, Mr. MURRAY, and Mr. MACON do prepare and bring in the same. TUESDAY, November 22. A memorial of the committee of the counties of Washington, Westmoreland, Fayette, and Alleghany, in the State of Pennsylvania, was presented to the House and read, stating their objections to an act, passed at the last session, imposing a duty on spirits distilled within the United States, and praying that the same may be repealed. Referred to the Secretary of the Treasury for his information. _Representative from Maryland._ The House resolved itself into a Committee of the whole House on the report of the standing Committee of Elections, to whom was referred the Letter from the Executive of the State of Maryland, containing the resignation of WILLIAM PINKNEY, a member returned to serve in this House for the said State; and also a certificate of the election of JOHN FRANCIS MERCER, in the room of the said WILLIAM PINKNEY. The law of the State of Maryland regulating elections being called for, was produced and read; by which it appeared that the Governor and Council of that State were authorized to fill up vacancies in the representation of that State in Congress. Some objections having been offered against accepting the report, Mr. SENEY observed, that the case appeared to him to be so plain that he was surprised to find gentlemen objecting to an acceptation of the report of the committee. He then stated the whole process of the business, in the resignation of Mr. PINKNEY and the election of Mr. MERCER, in which the law of the State had been strictly adhered to. He concluded by saying, that two cases in point had already occurred in the State of Connecticut, and no difficulty respecting them had taken place in the House. Mr. GILES said, that he was a member of the select committee which had made the report; and from an accurate attention to all the circumstances of the case, he was led to think the report a very improper one. From recurring to the constitution, he was of opinion that a resignation did not constitute a vacancy. The constitution speaks only of vacancies in general, and does not contemplate one as resulting from a resignation. Adverting to the British House of Commons, he observed that in that body there could be no resignation. This is an established principle. The people having once chosen their representatives, their power ceases, and consequently the body to which the resignation ought to be made no longer exists. From the experience of the British Government in this respect, he argued against a deviation from this rule. He showed from the constitution, that the Executives of the States who are empowered to fill vacancies, are not at all authorized to declare the existence of such vacancies; for, if they are to judge in the case, the whole power is invested in them of determining the whole business of vacancies--an idea that materially and essentially affects the privileges of the members of the House. He remarked that, even by the law of Maryland, the requisite steps had not been pursued by the Executive of that State. He concluded by saying that, if the principles he had advanced were just, he hoped the report would not be accepted. Mr. SMITH (S. C.) had had his doubts on the report; but on more mature consideration he was convinced that on account of the inconvenience which would result from rejecting it, and from other considerations, it was proper to adopt it, but not without a full discussion. He then stated some particulars to show that the vacancy which had occurred on this occasion could not properly be called a resignation. Mr. PINKNEY had never taken his seat, nor the requisite oath. He said that there was no analogy between the Parliament of Great Britain and this House; the mode of issuing the writs originally, and of filling up vacancies, is essentially different. No part of the constitution prohibits a member from resigning, and for convenience it ought to be concluded that he may resign. The public interest may suffer extremely in cases of sickness or embarrassments, which may prevent a member from attending. This argument from the body's not existing to whom the resignation ought to be made, will apply to the President of the United States, whose resignation is expressly mentioned in the constitution. The objection urged from the Executives of the States judging of vacancies, he conceived had no great force, for Congress would finally judge in every case of election. It is uncertain how the practice of the British Parliament originated. _Blackstone_ says nothing of resignations. When a member wants to resign in that Legislature, he gets appointed to some fictitious office which disqualifies him from sitting in the House. He thought it best to establish some precedent, rather than oblige members who may wish to resign to have recourse to some familiar method, by accepting of some appointment in the State which is incompatible with a seat. Mr. MURRAY said he was in favor of accepting the report, both on account of propriety and conveniency. Vacancies may happen from various causes--by resignation, by death, or by expulsion--the Executive of the State is the proper judge in the first case. He stated certain differences between a resignation after a person has taken his seat, and a resignation before that event. In the former case Congress will of course give notice to the Executive of the State; in the latter, the Executive alone can take cognizance of the resignation. He stated the extreme inconveniency which would result from the ideas of the gentleman from Virginia, as it would respect the State of Georgia. He then stated several particulars to show that Mr. PINKNEY was not a member of the House agreeably to the constitution, and therefore the House cannot proceed with him as one. He said that we ought to be willing to derive information from the experience of every country; but he conceived that no precedents could be drawn that would apply in the present case from a country which had none, to one which had a constitution that so clearly defined and guarded the rights of the citizens. The custom which had been mentioned as obtaining in that country, arose from a wish to prevent a frequency of elections. From what had been offered by the gentleman from South Carolina, and the ideas he had suggested, he hoped the committee would be induced to accept the report. Mr. WILLIAMSON said, that it appeared to him that the constitution contemplates that a member may resign. He read the clause, which says that no member of the Legislature shall accept of an office made _during the time_ for which he was chosen--from hence he inferred that resignations were clearly contemplated. Mr. GERRY said that he had heard nothing to show that Mr. PINKNEY had ever accepted of his appointment, and therefore it ought to have been expressed that he had declined; but, granting he had resigned after accepting his appointment, he asserted that nothing had been offered to prove that resignations might not take place in one House as well as in the other; and the constitution plainly expresses that a Senator may resign. The House of Commons originated with the Kings, who formed that body to control the Lords; and hence arose the prohibition against resignations, as they would weaken the body, and the expense of a new election would fall on the King. With respect to the Executive declaring improper vacancies, he observed that Congress was invested with full power to control the Executives of the States in respect to such declarations. Mr. SENEY observed upon a distinction made by Mr. GILES between a resignation on the part of a Senator and a Member of the House, he supposed a resignation in either would equally vacate a seat, and that no difference did really exist. Mr. SEDGWICK observed that, if a power of adjudication was vested in the Executives of the States to determine on a vacancy in cases of resignation, it would involve this consequence, that a power of judging of vacancies in all possible cases would be the necessary result. He thought the proposition involved the most serious effects with respect to the privileges and independency of this House. This subject was further discussed the next day, and ended in an acceptation of the report of the committee, which was in favor of Mr. MERCER's election. MONDAY, December 5. The House again resolved itself into a Committee of the whole House on the bill making appropriations for the support of Government, for the year one thousand seven hundred and ninety-two; and, after some time spent therein, _Ordered_, That the said bill, with amendments, be recommitted to Mr. LAURANCE, Mr. BALDWIN, and Mr. ASHE. The Speaker laid before the House a letter from the Secretary of the Treasury, accompanying his report on the subject of manufactures, made pursuant to an order of the House of the fifteenth of January, one thousand seven hundred and ninety; which was read, and ordered to lie on the table. The Speaker laid before the House a letter from the Treasury of the United States, accompanying his account of receipts and expenditures of the public moneys between the first of July, and the thirtieth of September, one thousand seven hundred and ninety-one; which were read and ordered to lie on the table. Mr. BENSON laid on the table a resolution for the appointment of a committee to join a committee of the Senate, to consider and report the most eligible manner of carrying into effect a former resolution of Congress respecting the erection of an Equestrian Statue, in honor of General WASHINGTON. _Appropriation Bill._ The House then, pursuant to the order of the day, resolved itself into a Committee of the Whole, and resumed the consideration of the appropriation bill, Mr. MUHLENBERG in the chair. In proceeding through the bill, the several items were separately considered and agreed to. Some occasional remarks were made; but no material debate took place. One amendment was proposed, by which the bill is made to express the several purposes for which the moneys are appropriated, instead of appropriating sums in gross, with a reference to the Secretary's estimate, for particulars. The committee having reported the bill and the amendment, the House adopted the same, and recommitted the bill to the select committee, who had originally framed it, with instructions to new-model it pursuant to the sense of the House. Mr. GERRY presented a resolution in lieu of one which he laid on the table on Friday last, making it the duty of the Secretary of the Treasury to report to the House, on the third Monday of every session, an account of the receipts and expenditures of the public money appropriated during the preceding session, so far as he shall then have it in his power to state particulars; and if he be unable to give an accurate statement of the whole, at the time appointed, he is to complete it as soon afterwards as may be. TUESDAY, December 6. _Resolved_, That Mr. BENSON, Mr. GERRY, and Mr. SMITH, (of South Carolina,) be appointed a committee on the part of this House, jointly, with such committee as shall be appointed on the part of the Senate, to consider and report to Congress the most eligible manner for carrying into effect the resolution of the United States in Congress assembled, of the seventh of August, 1783, directing that an Equestrian Statue of General WASHINGTON should be erected. MONDAY, December 12. The following Message was received from the President of the United States. _Gentlemen of the Senate, and of the House of Representatives:_ It is with great concern that I communicate to you the information received from Major General St. Clair, of the misfortune which has befallen the troops under his command. Although the national loss is considerable, according to the scale of the event, yet it may be repaired without great difficulty, excepting as to the brave men who have fallen on the occasion, and who are a subject of public as well as private regret. A farther communication will shortly be made of all such matters as shall be necessary to enable the Legislature to judge of the future measures which it may be proper to pursue. GEORGE WASHINGTON. UNITED STATES, _December_ 12, 1791. FRIDAY, December 16. _The Post Office Bill._ The House again resolved itself into a Committee of the whole House, on the bill "for establishing the Post Office and Post Roads within the United States." [The following is a condensed view of the arguments made on striking out the section which gives to members the privilege of franking.] When the bill under consideration is once passed into a law, it is presumable that no gentleman will ever ask a member to frank for him, as he cannot grant the request consistently with his honor; the apprehension entertained of the existence of abuses, and of their increasing with the increase of numbers, would be an argument equally valid against every law; for no law can be framed, as that the people will not find means to evade it. But still the Legislature will have the power of correcting the abuses, as soon as discovered, by passing new laws to check them. The committee who drafted the bill, had before them all the acts of the British Legislature, respecting the post office; they saw the abuses and how they had been remedied; and with such light to guide their steps, they had proceeded in the execution of their task. The privilege of franking they had introduced into the bill, upon mature considerations; to take it away would be leveling a deadly stroke at the liberty of the press; the information conveyed by franks, may be considered as the vital juices, and the channels of the post office as the veins; and if these are stopped, the body must be destroyed; it is treading on dangerous ground, to take any measures that may stop the channels of public information, especially of that which relates to matters in which the people are interested; to check the circulation even of foreign intelligence may be dangerous; but it is highly so, to deprive the people of information respecting the measures of the General Government; nor ought the members to complain of being obliged to read so many letters and petitions as come to their hands in consequence of the exemption from postage. If any gentleman thought this a heavy task, he ought to remember that it was only his duty, and a task which every member had undertaken when he accepted a seat in the House. The privilege of franking was granted to the members, not as a personal advantage, (for in fact it proved rather a burden), but as a benefit to their constituents, who, by means of it, derive information from those who are best qualified to give it, as they are the persons chosen to administer the General Government. The members also receive useful information through the same channel. When the impost law and the excise law were under consideration, many persons who were better acquainted with the operation of such laws, transmitted to the House much valuable information on those subjects; and to such information the House ought ever to be open; as, on the other hand, the motives for adopting certain measures, ought always to be explained to influential characters in the different parts of the Union. Such conduct will produce the most salutary effects in reconciling the people to the measures of Government, when the principles upon which every law is framed, are explained to them, as well by the correspondence of the members, as by their debates, published in the newspapers. It is the duty of the members to disperse the newspapers among those people who cannot, perhaps, otherwise obtain them, under the protection of franks. Even along the post roads, the common packets of newspapers are not safe from depredation; but when once they get into the interior parts of the country, there is hardly any chance of their escaping; whereas, under the cover of a frank, they are sure to reach their destination in safety. If the privilege were confined, during the session, to letters sent from and received at the seat of Government, and the members limited to their own letters, and obliged to write the whole superscription, the increase of the apprehended abuses would be prevented; if it were further restricted, by limiting to those letters only what are sent to or come from the State to which the member belongs, this would convince the people, that the privilege was intended for the benefit, not of the members, but of their constituents. Further, it was observed, that every argument, which might be adduced in favor of withdrawing the privilege from the members of Congress, might be used with equal force in the cases of President, Vice President, and every other public officer, mentioned in the same section. If the allowance of six dollars per day was a reason for subjecting the members to the payment of postage, every public officer ought also, on the same principle, to pay for his letters, as they were all compensated with equal liberality. If abuses were apprehended from the members, others were as likely to introduce them as they; if an increase of revenue was contemplated, the postage of all letters to and from the President, the Vice President, the Secretaries of State, of the Treasury, of the Department of War, &c., would contribute to that increase; but, on the other hand, those gentlemen must have their compensations increased, if their letters were to be taxed; for they could not be expected to pay for them at their own expense. If the privilege can be guarded against abuse, with respect to those officers, it can also be guarded in the case of members of Congress. The establishment of the post office is agreed to be for no other purpose than the conveyance of information into every part of the Union; and a greater portion of that had been conveyed into many of the interior parts of the country, by the newspapers sent by the members of the House, than could be conveyed by other means, excepting on the main roads on which stages go. That information had proved highly serviceable to the present Government; for wherever the newspapers had extended, or even the correspondence of the members, no opposition has been made to the laws; whereas, the contrary was experienced in those parts to which the information had not penetrated; and even there, the opposition ceased, as soon as the principles on which the laws had been passed, were made known to the people. As long as the privilege can be thus used for the general advantages of the citizens, it ought not to be relinquished by the members merely through fear of its being thought a personal privilege; it might be confined to members actually attending the session; they might be obliged to write the whole superscription, and even to add the date. In short, the wisdom of the House, it was hoped, would prevent all the evils apprehended from it, and retain the advantages. The question being taken on the motion, for withdrawing the privilege from the members, it passed in the negative; yeas 21, nays 35. TUESDAY, December 20. _Post Office Bill._ The House again resolved itself into a Committee of the whole House on the bill for establishing the Post Office and Post Roads within the United States. Mr. WADSWORTH moved an amendment, to withdraw the privilege of franking from the members of both Houses of Congress. In support of this motion, it was said, that the grand security which the people of the United States have in their Representatives is, that those Representatives are subject to the same regulations as their constituents. In the article of postage, this was not the case. Congress, in this case, assume to themselves a privilege, which they refuse to the people; they took money from their constituents, and paid none themselves. The people viewed this privilege with a jealous eye, and could not be pleased to see it enjoyed by Congress, whilst neither the members of the State Assemblies, nor even the Governors were indulged in it. Congress enjoys only chartered rights; and all rights not expressly mentioned in the charter, are of course excluded. The constitution is their charter; the Convention, who framed it, had, no doubt, well considered the whole subject of privileges and accurately defined all such as they wished the Legislative body should enjoy distinct from their constituents. In the enumeration of those privileges, there is not a syllable tending to exonerate them from their share of the common burden of postage; they have no constitutional claim to such an immunity, and if they assumed it they would increase the burden on their constituents. The post office, if unable to maintain itself, must derive its support from other sources of revenue. Already the members of both Houses send and receive, during their session, as many letters through the General Post Office as all the other inhabitants of Philadelphia; those letters, if paid at the usual rates, would amount to half the postage of the United States. The number and bulk of the franked letters and packets excluded the newspapers from the mail, and thus prevented the circulation of intelligence; if the evil increased (and there was no probability of its being diminished, except by the utter abolition of the privilege) it would eventually prove the ruin of the post office. The example of Britain showed to what an enormous height the abuse of such a privilege may be carried; and though similar abuses may not as yet have taken place here, yet it could hardly be doubted that many unnecessary letters were daily sent by the post, which never would have been written if subject to postage; those letters are not only unproductive, but an actual expense to the post office, as the postmaster receives a certain percentage on these, as well as upon other letters. The privilege of franking is moreover unequal in its operation; while some members use it only for the purpose of transmitting political information to their constituents, others, absent perhaps during the whole session, use it for very different purposes: to men in trade it was a considerable advantage, amounting probably, in some instances, to a hundred dollars a year. It would be better to take away the privilege entirely, and reduce the general rates of postage one-half, or to allow the members, at the close of each session, to make a charge for all letters on public business, from their constituents, or to make them an allowance in gross to defray the expense of postage; better, even, if necessary, to make an addition to the compensation which the members receive for their services, if the present one be found incompetent to their honorable support. On the other hand, it was observed, that the privilege of franking was not assumed by the members for their own private accommodation, but for the benefit of their constituents, to transmit to them every necessary information respecting the operations of the General Government, and to receive from them such information as they might have to communicate. Petitions are frequently enclosed to members; and if these were to be subject to the payment of postage, the privilege of petitioning the House, would be in a great measure destroyed. The diminution of revenue which the post office might in some instances suffer from the privilege of franking, ought not to be deemed a sufficient reason for abolishing that privilege; since it is allowed, that the object contemplated in the establishment was the general convenience, and an easy and speedy mode of disseminating public and private intelligence. Revenue was but a secondary consideration. Although the citizens who live at the seat of Government, and have daily opportunities of learning from the newspapers what public measures are going forward, may not be materially affected by the abrogation of the privilege, yet the case would be widely different with those who live at a distance, especially when fiscal operations were on foot; those who are informed, will make a prey of those who are ignorant, and destructive speculation will enrich the few, at the expense of the many. In a government of opinion (which is the Government of America) much greater reliance is to be placed on the confidence of the people than upon any other circumstance: that confidence can only be the result of the fullest information; but if the privilege of franking were taken away, the avenues of information would be, in a great measure, closed, for the members could not undertake, at their own private expense, to transmit intelligence to every part of the Union; yet the citizens have a right to expect information, not only of the acts of Government, but also the principles upon which they were grounded. The abuses of the privilege, that have prevailed in England, do not prevail here; and its abolition would give general dissatisfaction, particularly in the more distant parts of the Union, where information would be subject to a very high tax, if circulated through the post office, at the ordinary rates of postage. Of those bundles of letters received and dispatched by members of Congress, many (though far from being unnecessary, as had been said) would perhaps never be written, if they were not to pass free of postage; and thus that free communication of sentiment between the Representative and constituent, which is so essential in a Government like this, would be in a great measure cut off; and the post office would gain little or nothing by it, as those packets of newspapers, bills, reports, &c., would either be sent by private hand, or not sent at all; even here an inequality would prevail, as the people who live near the seat of Government, and all along the main road, could, from the greater frequency of opportunities, receive such packets with more ease and regularity, whilst those in more remote situations could seldom or never receive them, unless by the mail. The expense arising from the percentage to the postmaster on the free letters, is but trifling, as in such cases he receives no more for a packet of two ounces than for a single letter; and as to the idea of allowing the members to make a charge for their letters, this would be no better than receiving with one hand and paying away with the other. If, however, it were found absolutely necessary to take precautions against the abuses that were apprehended, this might be done by limiting the number or weight of letters that should go free by any one post, without entirely preventing the interchange of sentiments between the Representative and his constituents. The committee then rose, without taking the question on the amendment. THURSDAY, December 22. _Election of President, &c._ The House resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act relative to the election of a President and Vice President of the United States, and declaring the officer who shall act as President, in case of vacancies in the offices both of President and Vice President." The bill was read by the Clerk. The first section being again read by the Chairman, Mr. TUCKER moved to amend this clause by striking out these words, "except in cases in which an extraordinary election of President and Vice President shall take place, as hereinafter specified." This motion was agreed to. Mr. SEDGWICK made some general observations on the great objects of the bill, and adverting to the term proposed for the choice of Electors of President and Vice President, observed that he had his doubts whether it would not be best to give a longer time. He enlarged on the disagreeable consequences which would probably ensue, in case there should not be a choice by the Electors; as the matter must then be determined by the House, voting according to the constitution, by States. He descanted on the pernicious consequences which might result from the collision of parties, and the working of passions in the breasts of men whose ardor would probably be excited to the greatest degree on such an occasion; every reasonable measure should be adopted to prevent the evils which he deprecated; he therefore moved that the words "thirty days" should be struck out, in order to give the people a longer time to give in their votes for Electors. Mr. WHITE objected to the motion. He conceived it was calculated to produce the very mischiefs the gentleman appeared to deprecate. If it had been possible, he could have wished that the Electors should meet and give in their votes on the very day of their being chosen; he wished as much as the gentleman to adopt measures to prevent the evils he mentioned; but did not think the motion would conduce to that object; he thought the time should rather be contracted than extended. Mr. DAYTON also objected to the motion; he thought fourteen days would be a more proper time; it was the design of the constitution, though it is not expressed, that the President should not know the characters to whom he is indebted for his election. Mr. SEDGWICK observed, that the objections would be very proper was it certainly known that the Electors would always agree in a choice; but this he conceived, it was hardly possible should always be the case; and what will then take place? The election devolves on this House, and the Electors will then be known, and liable to all that intrigue and cabal which has prevailed in other countries. He left it to the consideration of the committee to determine on the immense importance of providing in season against the evils of a contested election, in the case now before them. Mr. BALDWIN objected to the motion; but said if it was struck out, he should then move to insert a clause which should assign different periods according to the circumstances of the several States, so that the Electors should meet as nearly as possible at the same time in all the States. Mr. NILES objected to the motion; and the question being put it was negatived. The clause which makes it the duty of the Executive of the several States to cause the names of the Electors to be certified, was objected to. Mr. NILES observed that no person could be called upon to discharge any duty on behalf of the United States, who had not accepted of an appointment under their authority. He thought that this was opening the door too wide, and involves a blending of the respective powers and duties of each, which is not warranted by the constitution; and he observed that he should be sorry that the Government of the United States should attempt to exercise a power which they are not competent to carry into execution. He moved that the clause should be struck out. Mr. SEDGWICK observed that if Congress were not authorized to call on the Executives of the several States, he could not conceive what description of persons they were empowered to call upon. Mr. NILES said he considered this section as degrading to the Executive of the several States; and inquired, what is to be done in case those Executives should refuse to comply with the requisition? Mr. CLARK said, it appeared to him that the committee was creating difficulties where none before existed. He observed that the choosing these Electors was a privilege conferred on the people, and that this was merely pointing out the mode of exercising this privilege; he thought the clause stood very well and would create no uneasiness whatever. Mr. HILLHOUSE said, he considered the provision improper. It imposed a duty on the Supreme Executives of the several States, which they might or might not execute; and thus the necessary certificates may not be made. He seconded the motion to strike out the clause, and proposed a substitute making it the duty of the Electors to procure for themselves the necessary certificates. Mr. LIVERMORE spoke in favor of the clause; he did not consider it either as an undue assumption of power, or degrading to the Executives of the respective States. Mr. BARNWELL said, a small addition to the clause would in his opinion obviate every difficulty; the words he proposed to insert were--"or such person as the Executive may appoint." Mr. STURGES moved to strike out "Executive," and insert "the Legislature." Mr. J. SMITH said, it appeared to him that the proposed alteration would amount to exactly the same thing; for the duty of giving the certificate would eventually devolve on the Executive. The motion for striking out the clause was negatived. The ninth section provides, that in case of vacancies in the offices of President and Vice President, the President of the Senate _pro tem._, or the Speaker of the House of Representatives shall act as President. Mr. WHITE moved the section should be struck out. He said the House had formerly discussed the subject and could not agree; the first part of the bill is necessary; this is not of immediate importance to be attended to. Mr. FITZSIMONS said, he supposed the question must be determined some time or other, and he knew of no reason why it should not be decided at this time; to strike out the clause would, in effect, be to declare that the House could not agree. Mr. WILLIAMSON was in favor of striking out. Mr. LIVERMORE objected to the motion; he said no two subjects could possibly be more intimately connected; and the provisions of the bill are such as to render the intermission, during which this regency was to take place, as short as possible; he hoped the clause would not be stricken out. Mr. WHITE added some further objections to the section; he said it was distinct from the bill, and though a majority of the committee were in favor of the characters nominated, yet he thought it would be best to make it the object of another bill, and of an independent discussion. Mr. SEDGWICK said, he hoped the section would not be struck out, especially if there is a majority of the committee in favor of it. He observed, that last session there was no decision in the case; he conceived it necessary that the business should be now decided on; and adverting to the particular characters named, he said they were as far removed from any influence of the Executive as any persons that could be possibly pointed out. Mr. BARNWELL was in favor of going into a discussion of the subject at this time. He said there was a large number of the present House who had not heard the observations offered in the last Congress; he supposed the present as proper a time to consider the subject as any that could occur. If gentlemen who are opposed to the section will offer their objections, he should be glad to hear them; if they were conclusive, he should vote to strike out the section. If nothing was offered, he should vote against the motion. Mr. STURGES mentioned several objections to the section, which in his opinion rendered it unconstitutional; he could not find that the Speaker of the House, or President of the Senate _pro tem._ were officers of the Government in the sense contemplated by the constitution. The compensations of the President and Vice President are settled by the House; the Speaker would have to decide on those compensations; this he said rendered him evidently improper. He further observed that the consequence would be caballing and electioneering in the choice of Speaker. Mr. WHITE said, the Speaker was not a permanent officer, if he could be considered as one in any point of view; but he was of opinion, that he was no more an officer of the Government than every other member of the House. The question for striking out the section was negatived. Mr. STURGES then moved to strike out the words, "the President of the Senate _pro tempore_, and the Speaker of the House of Representatives." Mr. GILES stated the reasons which he conceived fully proved the unconstitutionality of the clause. The characters referred to he did not think were officers. If they had been considered as such, it is probable they would have been designated in the constitution; the constitution refers to some permanent officer to be created pursuant to the provisions therein contained. These persons are not permanent; a permanent officer was contemplated; the subject was not to be left to any casuality, if it could possibly be prevented. Mr. SEDGWICK said, he did not know what officer could with propriety be said to be permanent; offices are held during good behavior in some instances, and in others during pleasure; but it will be impossible to say that any officer is a permanent officer, for the expression is very extensive. He was surprised to hear the idea controverted, that the Speaker of the House, or the President of the Senate _pro tem._, is not an officer. In common parlance he was sure there was no difficulty in the matter. Mr. GERRY observed, that some gentleman had said the Speaker is not an officer; but if he is not an officer, what is he? He then read a clause from the constitution, which says that the House shall choose their Speaker _and other officers_. He hoped, however, that the Speaker of the House of Representatives would be struck out, in order to avoid blending the Legislative and Executive branches together. He considered this measure as a political stroke of the Senate; but he hoped that the House would never consent to making their Speaker an amphibious animal. He moved therefore that the words "Speaker of the House of Representatives" should be struck out. Mr. HILLHOUSE objected to any officer appointed by the Executive being inserted. He said, if that should be the case, the appointments would in most cases be made with reference to that object; and hence important offices would often be filled with improper and incompetent persons. Besides, it was taking away the choice from the people, and thus violating the first principle of a free elective Government. The Senate are appointed by the people, or their Representatives, and hence, in his opinion, filling the vacancy would devolve with the greatest propriety on that body. Mr. WILLIAMSON was in favor of the motion for striking out both the characters. He observed, that this extensive construction of the meaning of the word officer, would render it proper to point out any person in the United States, whether connected with the Government or not, as a proper person to fill the vacancy contemplated. Before taking the question upon the amendment, the committee rose. TUESDAY, January 10. A memorial of George Turner, one of the Judges in and over the territory of the United States north-west of the Ohio, was presented to the House and read, praying a revision of the ordinance for the government of the said territory, and also an increase of compensation to the Judges thereof. Referred to Mr. LIVERMORE, Mr. LAURANCE, Mr. WHITE, Mr. WILLIAMSON, and Mr. SMITH, (of South Carolina); that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House. On a motion made and seconded, "That the Secretary of War be instructed to lay before this House an accurate statement of all ascertained balances of pay, which appear by the books of the United States to be due to the officers and soldiers of the late Army of the United States, and which still remain either unclaimed, or claimed and unpaid, together with the reasons for withholding payment from those who may have respectively entered claims therefor;" _Ordered_, That the said motion be referred to Mr. WADSWORTH, Mr. GILES, and Mr. SMITH, (of New Hampshire;) that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House. The House proceeded to fill up the remaining blanks in the bill to establish the Post Office and Post Roads of the United States; which was then read a third time and passed. _Petition of Catharine Greene._ The House resolved itself into a Committee of the whole House, on the Report of the Secretary of the Treasury on the petition of Catharine Greene, relict of the late General Greene. The object of the petition is to obtain an indemnification from the United States against certain engagements which were entered into by her husband, the deceased Major General Nathaniel Greene, while commanding officer in the Southern department; and for the circumstances on which it is founded, refers to a representation of the 22d August, 1785, which was then made by the said General Greene to Congress. The petition is accompanied by a number of vouchers, arranged in alphabetical order by the Secretary of the Treasury in his Report; from all which he draws the following conclusion: "That strong and extraordinary motives of national gratitude for the very signal and important services rendered by General Greene to his country, must serve to give a keener sting to the regret, which ought ever to attend the necessity of a strict adherence to claims of public policy, in opposition to claims founded on useful acts of zeal for the public service, if no means of protecting from indigence and penury the family of that most meritorious officer shall, upon examination, be found admissible." Mr. WAYNE rose and gave his reasons for supporting the petition, as follows: Mr. Chairman: It may not be improper to mention the motives that impel me to wish a fortunate issue to the _claim_ now under consideration of this committee, which I must also offer as an apology for the part I have taken, or that I may eventually take, in support of the claim. From my first interview with General Greene until the moment of his dissolution, we always lived in the strictest habits of friendship and confidence. He was an officer with whom I had participated in almost every vicissitude of fortune, (in many a well-tried field,) from the frozen waters of the North to the burning sands of the South. He was a man whose virtues and talents I knew and revered; his noble soul would have revolted at the idea of imposition. He never would have offered in a _claim_ to Congress, but upon the purest principles of honor and justice. I was a witness to the pressing necessity that _compelled_ him to become the surety, for which indemnity is now claimed. He did what I would have done, (as second in command,) had he been absent at that trying crisis. The claim I _know_ to be just, and I am decidedly of opinion that he was drawn into that security from the situation in which he was placed by Congress, as Commander-in chief of the Southern Department. Under these impressions, I beg leave to submit to the consideration of this committee the resolutions now in my hand, and doubt not of their concurrent support. "_Resolved, as the opinion of this Committee_, That the estate of the late Major General Nathaniel Greene ought to be indemnified for and on account of the engagements entered into by that General with certain persons in the State of South Carolina, for the purpose of obtaining supplies for the American Army, in the year 1783, and that ---- be granted to the Executors of the estate of the late Major General Nathaniel Greene, for that purpose. "_Resolved_, That a committee be appointed to bring in a bill in conformity to the foregoing resolution." Mr. BOUDINOT said, there was no greater friend to the memory of General Greene than he was, nor any person more anxious to have justice done to his widow and family; but he was apprehensive that the resolution proposed by the worthy gentleman who had first brought forward this subject was not drawn up in such a manner as to ensure it a passage through both Houses of Congress. He wished, therefore, that it should be so expressed as to prevent any tedious discussion, and at the same time do ample justice. The Report of the Secretary of the Treasury puts the subject on the best footing. The motives which led him to make the contract were, first, the public good; and perhaps, secondly, to serve his friend, Mr. Burnett, because he was his aide-de-camp, and he wished to put him in the way of being established in business after the war; but Mr. Burnett was never in any other way connected with General Greene than as a young man brought up in the family, whom he wished to patronize. After a few other observations, Mr. BOUDINOT moved to strike out the preamble of the resolution proposed by Mr. WAYNE, and to adopt words nearly in substance as follows: "_Resolved_, That it is becoming the dignity of Congress to make compensation for the widow and orphans of the late Major General Greene, who so gloriously served his country; and that they be indemnified for the loss which his estate is likely to sustain by his having entered into certain bonds for supplying the Southern army with rations and clothing, at a time when they were threatening to disperse." Mr. FINDLAY observed, that on the question as it is now stated, the committee have a choice of three alternatives; the claim may be rejected, a pension or gratuity may be granted to the amount, or the claim of the petition may be granted as a matter of right, upon the footing of its own merits by a special law, as all authorized claims which Congress grant are given. Claims for which the standing laws are competent, do not come before us. I am in favor of the last alternative. I am against rejecting the petition; because, as the facts are stated in the Report of the Secretary of the Treasury, General Greene putting himself in this situation of risk was from the most public-spirited motive; it was to support the public interest at a most important crisis, when the well-being, if not the existence of the Southern army was at stake, as well as the security of the inhabitants. If a commander-in-chief of an army may be ruined in his private affairs by making an unauthorized exertion to save his army or his country, the precedent may be dangerous; it may teach commanders lessons of prudence, which may have ruinous effects. It is true the necessity of the case must be such as will justify the unauthorized measure: from the Report, this appears to have been the case in the subject of the present debate. From the whole state of the facts before us, General Greene appears not to have had his own interest in view in this transaction, if the proof of this only lay between Banks and him. The established character of General Greene, not only as an officer, but as a man of integrity and public spirit, certainly cannot sink when laid in the balance with the secret insinuation of an unprincipled speculator. Such has been my own opinion of General Greene's character, that I would certainly require other proofs than this before I would even indulge suspicions: but it does not rest upon this. We have Banks's own testimony to the contrary, and his partner, and we know it would have been the interest of Banks & Co. to have made the contrary appear: nay, we have such a cloud of witnesses, all concurring to the same point, as appears sufficient to remove doubts from the most scrupulous mind. Unauthorized accounts are admitted in settlements between the United States and the individual States, upon the principles of equity. I consider this as a case of the same nature, and will vote for it agreeably to this precedent. I consider granting the prayer of the petition in this manner, as an act of justice, not only to his estate, but to the memory of his character. But I object to granting the relief in the indirect way of a pension; it is not so safe to the public, nor so honorable to the heirs of General Greene. To the public it is highly dangerous as a precedent; it will operate as an opening wedge to other claims without limitation. Few indeed can have an unauthorized though just claim as commanders-in-chief of an army reduced to such a dilemma as originated the present question; but merit and distress are not confined to commanders alone; they are to be found in every rank of citizens. The struggles during the late revolution produced abundance of merit; we cannot look around in this House, nor in any large collection of citizens, but our eye meets with those who have claims of merit. We can scarcely be acquainted in any neighborhood, but we must be acquainted with such as have been reduced to distress by their meritorious exertions, either in the camp, in the cabinet, or by granting supplies. How many who have aided the public with their substance, have been obliged to part with the evidences of their meritorious claims for a temporary relief. Many of the aged, many widows and orphans, to my knowledge, labor in penury, and mourn in secret, on the account of such meritorious aids not being recompensed when they ought to have been; though this was owing to the public misfortune, yet the merit and sufferings were not the less. I am very sensible of the great merit of General Greene; it is so well known, and so generally acknowledged, on all hands, as to render it improper for me to enlarge thereon. But, superior as his merit was, if we grant a pension or relief not founded on a just claim, merit of a lower order must be also admitted: there is no distinguishing the shades. I have heard of claims on the footing of merit brought before Congress, supported by such arguments as would induce a stranger to think that nearly all the merit of accomplishing the revolution was centred in the claimant. If merit is to be rewarded by pensions, we shall soon have claimants in abundance. In the exercise of supreme command, difficulties often arise which render exertions necessary for which general rules cannot be provided; these have been generally treated as objects of indemnification. Many claims are now before Congress; they are various in their nature, and no doubt a number of them will be admitted; but from every view I have taken of the claim before us, I think the present as strongly addresses our justice and sympathy as any of them. Mr. WAYNE thought it necessary to make some observations on what had fallen from the gentleman on his right, (Mr. BOUDINOT.) In order to place this subject in a proper point of view, he begged leave to mention certain circumstances previous to the evacuation of Charleston. Some of the first characters in South Carolina obtained a flag from General Greene, to meet a deputation of merchants and others under a flag from the British lines. Those merchants were anxious to remain after the army, for the purpose of disposing of their stock in trade, and wished for a reasonable time to transact that business; this indulgence was readily granted, for it was thought an object of consequence to retain supplies for the use of the country as well as for the army; and they were permitted to continue in the place for the space of _twelve months_ after the abandonment should take effect. Assurances were also given them for the inviolable protection of their persons and property for that period. Thus sanctioned, they were probably induced to speculate upon such stores as the British army could spare, (for that army was redundantly supplied,) whilst the Americans were experiencing almost every possible distress for want of the common necessaries of life. About this time hopes were entertained of the speedy appearance of a superior marine force from the French West Indies, to that of the British; and the operating army under my command was advanced to the quarter-house, in a position to prevent the enemy from embarking with impunity, and to protect the town and its inhabitants from depredation and insult. This manoeuvre had the desired effect; it created a jealousy in the British General for the safety of his rear, and General Leslie was, in a manner, compelled to come into a convention, more resembling a _capitulation_ than an _abandonment_, for he was under the necessity to "agree not to commit any insult upon the inhabitants, or depredation upon their property, or damage to the city, at or _after_ his embarkation." The word _after_ caused some demur; but it was insisted upon and complied with, in consequence of the orders I had previously received from General Greene; a measure which at once afforded security to the inhabitants, and a flattering prospect of full supplies, as well for the citizens as for the army. The gentleman (Mr. BOUDINOT) says--How are we to distinguish between the articles and necessaries that were actually made use of by the army, and of the other goods purchased of the British merchants? This may be fully answered and explained by mentioning this fact: that those merchants took advantage of their situation, and would not dispose of any article suitable for the army unless _their whole stock were purchased together_; having but twelve months to dispose of their goods and collect their debts. Nor could the necessary articles be obtained at the point of the bayonet, as the merchants were protected by a compact made under the sanction of a flag. Nor would they trust the contractor _Banks_ with their property, unless General Greene became his security; by which act, in their opinion, the _United States_ would be bound in honor to fulfil a contract made by their commanding officer; nor did General Greene come into the measure until compelled by dire necessity, to prevent a mutiny and dissolution of the army. And such was the exhausted situation of the country in the vicinity of Charleston, that the Executive and the Legislature found it expedient to send a distance into the country to obtain supplies for themselves and the refugee families who were returning to the city after the evacuation: in fact, we were under the necessity of taking part of these very provisions, to prevent an instantaneous revolt. But the gentleman (Mr. BOUDINOT) says that General Greene's private friendship for Major Burnett, who had been his aide-de-camp, was a peculiar inducement for his entering into that security, and that Major Burnett had mortgaged an island to General Greene as a collateral security. This, indeed, was an act of private friendship; but it was a subsequent transaction, and noways connected with the former, nor is it amongst the charges. This was a private purchase by Major Burnett from Mr. John M'Queen, a gentleman well known in South Carolina; and it was thought to be a very advantageous purchase for Major Burnett at the time it was made, (although it has turned out otherwise,) but it was necessary for him to obtain security, previous to receiving _titles_. He applied to General Greene to become his security upon that occasion, which was complied with; and in that act he certainly displayed a superior degree of private friendship, and such as has already been found extremely injurious to his family; but it is by no means connected with the claim now under consideration. The danger of establishing a precedent in future, unsupported by previous authority obtained from Congress, is also mentioned as an objection. Mr. Chairman, there never can be any danger of drawing this circumstance into precedent; for the page of history never did before, nor I believe ever will again, produce a similar precedent, _i. e._ an army facing and surmounting every difficulty and danger through a long and bloody contest, badly clothed and worse paid, and frequently destitute of the common necessaries of life. Sir, it is for the honor of General Greene that we contend; and I am warranted in asserting, that he was not interested in the contract of Mr. Banks, otherwise than from the pure and virtuous motives of serving and saving his country. I therefore feel myself interested, and bound in honor to support and defend the character of my departed friend, and to demand this claim as a matter of _right_, and not of _grace_; and I have a confidence that the candor and justice of this committee will induce them to adopt the principles of the resolutions submitted to their consideration. Mr. SUMTER.--With respect to the resolution as it now stands, I feel myself obliged to oppose it. Nothing that has fallen from the gentleman over the way (Mr. WAYNE) has convinced me that the measure is proper or just. It is necessary to be cautious in the manner of discussing a matter of so much delicacy. I rise, not to make any pointed objections that can in any degree injure the reputation of the officer, whose abilities I respect, or to hurt the feelings of his family or connections. I suppose that no gentleman will decide in favor of the resolution without examining the merits of the case. The committee will have that information which they shall deem to be requisite on the occasion. I am sorry to differ in opinion with the gentleman from Georgia, and am therefore disposed to make sacrifices of my own feelings of past injuries, and will not suffer them to warp my judgment, but will endeavor to decide in conformity with the opinions of the people of the State of South Carolina, and in particular of the district which I have the honor to represent. In going into the investigation of this matter, I will give my reasons why I do not think the country, although in extreme distress, was in that deplorable situation which has been represented; neither was its credit reduced so low but that relief might have been obtained, and that so small an army might have been accommodated, had a proper application been made in time to the Government. The gentleman must therefore be mistaken in stating those circumstances; for if the proper documents be examined, it will appear that the army received very ample supplies from the same source, some months previous to the contract made by Mr. Banks, which must have been in November, or early in December, and previous to the evacuation of Charleston. Whether it was better to adopt the means used by General Greene, or those within the power of the Government, I shall not pretend to determine; but I have no doubt that the Government possessed both the means and the inclination to find supplies. The contract was first made by Banks in November or December, and General Greene did not become the guarantee until the April following; whether there were any reasons for preferring this mode to that of an application to Government, will perhaps appear in the course of the investigation. Mr. Chairman, this contract has been considered to have operated rather as a misfortune, although it may have afforded a temporary relief; it was the occasion of much complaint, vexation, and distrust, rather than of conciliation; and that this discontent ran through the army is within the knowledge of several officers whose names could be mentioned. It is therefore necessary to bring the matter into the full view of the committee, and to have recourse to the files of the public offices, before we agree to the resolution on the table. At the same time, it is my sincere wish to render justice to the family of the deceased in every reasonable accommodation; but it does not appear to me that the family is reduced to that disagreeable situation which has been represented. The large grants that have been made by the States of Georgia, North and South Carolina, are still in the possession of the heirs of the deceased, and I have been informed that a gentleman offered $30,000 for that granted by North Carolina, so late as last summer; neither have I heard that any distress has been levied upon any of these estates, or that they are so much affected, in reality, but that the claims made against them are rather of a nominal and visionary nature. But admitting that General Greene was security for the United States, and that the operation had been beneficial, (which I deny;) does it appear that executions have been levied to any considerable amount, or to such an extent as to justify the present application? To me it does not appear this has been the case, neither do I believe that the estate has been reduced in the manner represented; and, whilst I say it, I honestly and sincerely hope it; under which impression, I can never accede to the resolution on the table. Mr. WADSWORTH.--The gentleman last up has said many things to me utterly unintelligible, and others which directly militate with what has been said by the gentleman from Georgia. He has, however, declared that no real or supposed personal injury shall influence him in giving his opinion or vote. I hope, sir, he will not now feel or resent those real or supposed injuries. I do believe they are not real; and from my long and intimate acquaintance with General Greene, I had good opportunity to know him; a better man I never did know. That he had enemies is not to be wondered at; the nature of his command to the southward was important, critical, and difficult, and he might be constrained to do things that necessity only would justify. If he has injured any man, he has atoned for it; neither the tongue nor pen of malice have been able to affix a stigma on his character. If I ever knew a man whose heart was pure and without guile, it was General Greene. Yet he had enemies; no man deserved them so little. More honest fame is due to no man. And if his fortune is to be sacrificed, and his family beggared, it is a consolation that his good name will last for ever. Being one of his executors, I know something of his affairs; but it was with reluctance I rose, as my attachments to him and concern for his family render it extremely difficult for me to enter on the subject. The gentleman from South Carolina has told us he is acquainted with the affairs of the estates in the Carolinas, and has said they are without any executions against them, the bonds on good credit, and the family in no danger of poverty, &c. I can hardly allow, sir, that he is acquainted with the affairs of General Greene, even in South Carolina and Georgia; but if he is, I will ask him if he does not know that all the negroes from the South Carolina estate are sold, and that the land is totally unproductive? that Mr. Rutledge has prevented executions from taking the Georgia estate by his personal interference? that all the estates in Rhode Island and New Jersey are sold? and that the hope of the justice we now ask for has delayed the sale of all the rest, to satisfy his creditors--his Southern creditors? The proofs and documents alluded to by the gentleman (Mr. SUMTER) have been before Congress for several years, and the friends and executors of General Greene have challenged his enemies, in every part of the Union, to disprove them; and I hope no delay will now take place. The subject is fully before Congress. I hope justice will be done to the widow and orphans of the late General Greene, and that the investigation will now be finished, his honest fame vindicated and established, and his family saved from the ruin that awaits them. Mr. HARTLEY, in support of Mr. WAYNE's motion, observed, that he had paid some attention to the report and the documents referred to in it, as well as the objections made to the resolutions under consideration. Many of the objections, said he, have been answered by gentlemen who were nearer to the scene of action than myself; I shall strive to obviate others. The mode of conducting our affairs in South Carolina does not seem to have been agreeable to the gentleman opposite to me from that State, (Mr. SUMTER,) and he expresses his high disapprobation of many parts of it. When I disagree with that gentleman, I do it with great reluctance; for no one on this floor has a greater respect for him than myself. In a hazardous and difficult situation, or in carrying on war, or even in great political questions, the best friends may differ in the mode of conducting them; and it has too frequently happened, that such difference has tended to lessen the friendship which formerly existed. Upon the whole, our arms to the southward were crowned with success; we must presume the means generally used were right. If supplies could have been furnished by the State of South Carolina, it is a pity they were not granted. I say, it is possible General Greene might have pursued a different mode to obtain clothing and provisions. He did not. He was of opinion no other plans could have been successfully followed but those which were adopted. The idea of his being a partner with Banks & Co., seems to be given up by the opposition. The mere insinuation of Mr. Banks and some others can have no influence against such a cloud of evidence and documents. These are so strong for the General, that they would work conviction on the greatest infidel. I shall barely advert to a part of them, as mentioned in the report, and on this head give a few observations of my own. And, first, the application to the Legislature of South Carolina, in order to create a competition: Had he been concerned as a partner, or intended to be so, no competition through that channel would have been proposed. If he was to be a partner, the more secret the transaction, the higher the advantage. The bond of indemnity to General Greene, oaths of Banks and Hunter, certificate from Major Forsyth, Nathaniel Pendleton's oath, Charles C. Pinckney's oath, (now Governor of South Carolina,) and the certificates of the two Chancellors of South Carolina, who were both high in the Executive, when these transactions should have happened. Besides, sir, if we consider how many partners there were concerned with Banks in the different transactions, had General Greene been one of the company, it must long since have been manifested to the world. The secret could not have been kept; nor can we possibly think that General Greene, who was undoubtedly a man of understanding, would have expressed himself in the manner he has done, in the close of his letter from Newport, dated the 24th of August, 1785, had he been a partner. He says there, "Thus have I given your Excellency a short narration of the origin and situation of this matter, and have only to add on this subject, that I never held any commercial connection with the company, other than what concerned the public, either directly or indirectly, or ever received one farthing profit or emolument, or the promise of any one from them; and my bond of indemnity expressly declares that I have no interest, connection, or concern, in the debts for which I became bound, all which I am willing to verify on oath." Would he have pledged his honor, his reputation, had he been interested? No, it is impossible! He would have been silent had he been a culprit, and not have challenged the world, as the power of detection would have laid with so many, and the shaft of envy always ready. I hope every man must be satisfied that the General was no partner. The great points of contest before the committee seem now to be-- 1st. Did the General enter into these engagements out of personal regard to individuals, without a view to the public interest? 2dly. Was not the good of the public his principal object? 3dly. Under all circumstances, should not his estate be indemnified? As to the first, I cannot think that the General, out of mere personal regard to individuals, without a view to the public good, would have been bail. He had been esteemed a man of prudence, and was not a person of large fortune. How would he embarrass his family and property in such engagements? Who, under mere motives of friendship, would have done so? The sum was too large; he had no interest. He got no goods or money for himself. He might have had a favorable opinion of some of the company, but his responsibility was become necessary with a view to the public good. As to the second, public good must have been his principal object. The contracts before made would not have been carried into execution, without the aid of the contract, for which the indemnity was made in April, 1783. A great many articles were absolutely necessary to the army; they were connected with others; the necessaries could not at that critical period, or for the moment, be obtained elsewhere. The merchants, as I understand, insisted upon two conditions before they would deliver the goods: 1st, that all the goods should go together; 2d, that the commanding officer should become security. There was a necessity for an additional capital to furnish the means for supporting the army; and as most of the goods were useful and necessary, the residue might be disposed of to the best advantage, and the money arising from them be applied to the payment of the debt. Public necessity and the state of things would oblige the General to agree to the first condition. The compliance with the second condition became a necessary consequence. The General's letter from Newport, and General Wayne's oath, Nathaniel Pendleton's oath, and other evidence, prove the situation of the army. As to the third point, should not his estate be indemnified? Through his zeal for the public good, he has unfortunately involved his estate in difficulty. Whatever the conduct of the company might be, the creditors were not to be affected either by the fraud or failure of Banks and the purchasers. General Greene was liable. The General, when he hears of misconduct, does all he can to save and indemnify himself, and through him the United States. Securities were taken in as ample a manner as they could he obtained from the delinquents; and General Greene never wished to call upon the public, until every other means failed. So late as the year 1785 he had still hopes there would be no loss; but when he found the danger, a sense of duty obliged him to come forward to save himself and family, to ask the protection of the public to indemnify him from a debt that he had contracted to save an army from mutiny and disbanding; to protect a country which otherwise would have been exposed. Many exertions had he to make to feed the hungry and cover the naked; were not these for the public good, and shall his private property suffer? Shall his family be reduced to beggary, be stripped of their all, to discharge what the United States are in honor and in justice bound to pay? Retrospective laws, to affect rights attacked, ought never to pass; but laws have frequently been enacted to indemnify persons for a conduct, though not strictly legal, yet founded on the special circumstances of the case--the safety or honor of a nation or army, where the constitutional authority could not come forward in time. Such was the treaty or system formed by the Duke of Marlborough and the great De Witt. The Dutch, instead of punishing their minister, approved the measure; it eventually tended to the safety and honor of the allies. The individual who undertakes risks for his country's good, a magnanimous Government will always sanctify. We should consider the case upon substantial principles, not according to the letter, not act as the Lacedæmonians did to one of their leaders; they fined him for the infringement of the letter of the law, yet for the same act rewarded the hero with a garland. The fine here ruins the General's estate, and the garland alone, I fear, in this country, will not give his children bread or a becoming education. In our late contest, the common maxims of old nations could not always be adhered to. We were obliged to act according to emergencies. In the case of General Greene, he seems to have intended for the best. He helped to serve and save a country. His merit stands high indeed. I need not repeat the number of his great and glorious actions, which mark him the General and the hero. His name will be handed down with honor to succeeding ages. Under all circumstances, I think his estate should be indemnified. If the committee do not like the whole of the resolution, let there be a division, as proposed by one of the gentlemen from South Carolina; though I should think we might safely vote for the whole of the resolution, and let the bill make any other provisions which it may be thought necessary. Mr. LEE, Mr. BARNWELL, Mr. WAYNE, and Mr. BOURNE, R. I., spoke in favor of agreeing to the resolutions, and Mr. MACON and Mr. STURGES against the motion. Mr. SUMTER closed the debate in sundry remarks on extracts from letters wrote by General Greene during the late war, inserted in Gordon's History of the American Revolution, which extracts contain unfavorable reflections on the militia of South Carolina, and the patriotism of the inhabitants of that State. These reflections, Mr. SUMTER said, were gross calumnies on, and misrepresentations of the character of that people, which he said were invalidated by facts that at that time took place, and by the general tenor of the conduct of South Carolina throughout the whole course of the war. MONDAY, January 23. _Petition of Catharine Greene._ The order of the day being called for, on the report of the Secretary of the Treasury on the petition of Catharine Greene, several members objected to taking up this subject, being of a private nature, while matters of the greatest public importance demand the immediate attention of Congress. The question being taken, the motion for going into Committee of the Whole was carried, 21 to 16; and Mr. LIVERMORE took the chair. After considerable debate, the question was put for agreeing to the first resolution, in the following words: _Resolved_, as the opinion of this committee, That the estate of the late Major General Greene ought to be indemnified for the engagements entered into by that General, with certain persons in the State of South Carolina, for the purpose of obtaining supplies for the Army of the United States, under his command, in the year 1783. Which was negatived, 28 to 25. The committee then rose, and the Chairman reported that the Committee of the whole House had had under consideration a report of the Secretary of the Treasury on the petition of Catharine Greene, and had come to no resolution thereon. Mr. MACON then moved that the Committee of the Whole should be discharged from any further proceedings on the subject; which motion was agreed to. Mr. BOURNE then laid on the table a resolution for referring the Secretary's Report, together with Mrs. Greene's petition, and the vouchers accompanying it, to a select committee, with instruction to inquire into the facts which rendered it necessary for General Greene to become security to Banks & Co., and the nature, circumstances, and amount of the original debt, and the obligation entered into by General Greene for payment thereof; with an account of the moneys or collateral security received by the obligees, or by General Greene in his lifetime, or his representatives since his death, in part thereof; and the eventual loss which his estate will sustain in consequence of the said securities; and after examining all the circumstances and such further evidence as may be offered relative to the transaction, to report their opinion thereon to the House. THURSDAY, January 26. An engrossed bill to ascertain and regulate the claims to half-pay and to invalid pensions was read the third time and passed. _Protection of the Frontiers._ The House resolved itself into a Committee of the whole House on the bill for making further and more effectual provision for the Protection of the Frontiers of the United States. A motion being made to strike out the second section of the bill, which contemplates the raising of three additional regiments of infantry and a squadron of light dragoons, amounting in all to three thousand and forty men, exclusive of commissioned officers-- It was urged in favor of the motion, that the Indian war, in which the United States are at present involved, was, in its origin, as unjustly undertaken as it has since been unwisely and unsuccessfully conducted; that depredations had been committed by the whites as well as by the Indians; and the whites were most probably the aggressors, as they frequently made encroachments on the Indian lands, whereas the Indians showed no inclination to obtain possession of our territory, or even to make temporary invasions, until urged to it by a sense of their wrongs. A proof of this unencroaching disposition on their part plainly appeared in their conduct, after the victory they lately obtained over our troops; for, when flushed with success, they might have swept the country before them, and penetrated as far as Pittsburg, they contented themselves with the advantage they had gained over their invaders, and did not attempt to invade our territories in return, although there was nowhere at hand a sufficient force to check their career. The mode of treating the Indians in general was reprobated as unwise and impolitic. The Indians are with difficulty to be reduced by the sword, but may easily be gained by justice and moderation;[41] and, although their cruelties are alleged as reasons for a different conduct, and the sufferings of the white people pathetically deplored, these narratives, it was said, are at best but _ex parte_ evidence--we hear nothing of the sufferings of the Indians--but if Cornplanter's speech were read, it would set the matter in a very different point of view, and furnish a complete answer to all the charges of their accusers. Peace, it was said, may be obtained from the Indian tribes at a much less expense than would be necessary for the support of the war. To persevere in hostilities would be wasting the public money to a very bad purpose indeed; for, supposing our arms crowned with victory, what are the advantages we may expect to reap from our success? We can only gain possession of their lands--a possession that must long continue unproductive of the smallest benefit, as we already possess land sufficient--more, in fact, than we will be able to cultivate for a century to come. Instead of being ambitious to extend our boundaries, it would answer a much better national purpose to check the roving disposition of the frontier settlers, and prevent them from too suddenly extending themselves to the Western waters. If kept closer together, and more nearly connected with the old settlements, they would be more useful to the community at large, and would not so frequently involve us in unnecessary and expensive wars with the Indians; but if permitted to rove at pleasure, they will keep the nation embroiled in perpetual warfare as long as the Indians have a single acre of ground to rest upon. If the citizens of the United States were recalled within their proper boundaries, there they might, for years to come, cultivate the soil in peace, neither invaded nor invading. As the country progresses in population, and our limits are found too narrow, it will then be soon enough to contemplate a gradual extension of our frontier; but, in the mean time, it is an idle profusion of blood and treasure to carry war beyond our present line of forts. It is only exposing our arms to disgrace, betraying our own weakness, and lessening the public confidence in the General Government, to send forth armies to be butchered in the forests, while we suffer the British to keep possession of the posts within our territory. As long as Britain is suffered to retain these posts, we can never hope to succeed against the Indians; nor ought we to trace our late misfortune to any other source than her still holding them in her possession. Were they in our hands, the Indians could not carry on their operations against us with the same degree of vigor as they now do; for it is from those forts that they obtain their supplies of arms and ammunition, with which they can be at all times plentifully furnished, as long as things continue on their present footing. Until those posts are in our possession, it will be in vain to send our armies into the wilderness. A body of five thousand men, sent out against the Indians, under the present circumstances, would be as effectually defeated as the smaller ones have already been. In those wilds, our troops have no friend at hand to furnish them with supplies, or to give them intelligence of the approach and operations of the enemy; whereas, the Indians, receiving both aid and information from their friendly neighbors, can preconcert their plans, and choose, according to their own convenience, the place and the hour of attack, as they did before. It was here observed, by an honorable gentleman on the other side of the question, that we ought undoubtedly to get possession of those posts; and that we might have long since obtained it, if we had only laid a seasonable embargo on all the British shipping in our ports; though he doubted whether it would at present be worth while to take such a step, as the English have lost so great a portion of our carrying trade, in consequence of the additional tonnage laid on their vessels. In favor of the motion, it was further urged, that, supposing even the war to have been originally undertaken with justice on our side--supposing, also, that the national honor and interest called for a continuance of hostilities--yet, as it was by no means either necessary or prudent to invade the Indian territory, as this had been attempted in two successive campaigns, and the event had, in both instances, been such as to afford no very flattering prospect from a third expedition of the same kind, it was thought much more advisable to content ourselves with defending the frontier; and this might be done without making so great an augmentation in the military establishment. The only use of regular troops on the frontier is to garrison the forts, and to have a standing force in the neighborhood to form a station, to which the militia may resort either for protection or supplies; but as to active service, the frontier militia and rangers were pronounced to be by far preferable to the regular troops, as being more expert woodsmen, and better habituated to the Indian mode of fighting. To defend the forts, a small number of regulars would be sufficient. The present establishment of two regiments would, if completed, be amply adequate to the purpose, and, when assisted by such forces as might at all times be collected on the frontier, would be able to repel every inroad of the enemy. Experience has proved that the sudden and desultory attacks of the frontier militia and rangers are ever attended with better success than the methodical operations of a regular force. The former are better calculated for expedition and surprise, making unexpected sallies, scouring the country in small bodies, harassing the Indians, and intercepting their straggling parties, by whom their motions are unobserved; whereas, when a body of regulars take the field, encumbered with baggage and heavy artillery, the unavoidable slowness of their movements affords the enemy an opportunity of watching all their operations, collecting their whole force, and skulking in the woods around them till they can seize the favorable moment to strike a sudden blow, which they generally do with success, but which they could never attempt if exposed every hour to the unforeseen attacks of our woodsmen, who would keep their attention constantly engaged in all quarters, and thus prevent them from uniting in large bodies. It was further observed by some gentlemen, who even admitted the propriety of invading the Indian territory, that, to effect this with success, it was by no means necessary to make such an increase in the military establishment as that contemplated in the bill. The miscarriage of the former expeditions could not (they said) be alleged as a sufficient reason; for it is well known that the former establishment was far from being complete. The regulars intended for the service of the last campaign were to have been above two thousand two hundred; the President was, besides, empowered to raise two thousand five hundred levies, in addition to the regulars; and these would, together, have constituted an army of about four thousand seven hundred men. Had such a body been employed, we might reasonably have expected much better success against the Indians, whose numbers were so far inferior; the whole force of the Wabash tribes not amounting to above eleven or twelve hundred warriors, who never could keep the field for any length of time, but must be soon obliged to disperse, without venturing an attack upon an army of such superior strength. Instead of this, our army consisted of only about twelve hundred men, and of these not above four or five hundred were regular troops; besides, had even this force been sufficient, if employed in season, the delays that had taken place in the execution of the plan would alone have been sufficient to defeat the intended purpose. During the winter, the law was passed for raising the additional troops for carrying on the war with greater vigor. The whole summer was spent in the business, and the few men that we did enlist were not raised till late in the fall. Collected at length at the head of the Ohio, they fruitlessly loitered away their time, till they finally erected a monument to our eternal disgrace and infamy. Whatever troops are to be employed, ought to be raised with diligence and despatch, if we wish to avoid a similar miscarriage in our next attempt. The army ought not to enter the Indian country till their whole force is complete. Difficulties, however, and delay, equal to those of last year, may be expected in enlisting the men; and we shall have the officers in pay a considerable time without any soldiers. Perhaps the former pay of the troops was too low, and proper effective men were unwilling to accept of it; if so, let it be raised, let the men be well clothed and fed, and they will more readily engage in the service. Probably, also, the term of three years was an objection with many, who would otherwise have joined our standard. If enlisted only for six months, the ranks will be sooner filled; and this ought to have considerable weight with those who advocate the augmentation of the military establishment, as they cannot but know that, if we set about enlisting the number of men contemplated in the bill, and in the manner there prescribed, they cannot be raised time enough to render any service in the next campaign. The information contained in the report on the table was not, it was said, to be implicitly relied on. That report was made by a man who had not personally visited the frontier. Others, who had been on the spot, were of opinion that, if two thousand levies had been raised last year, they would have been sufficient, not only for the defence of the frontier, but even for any offensive operations that might have been thought necessary. Such troops, collected in the vicinity, are more competent to the undertaking than the troops now in contemplation. No complaint had been made of their conduct. Whenever they were tried, they behaved as well as the regulars, and, in the action under General St. Clair, they gave equal proofs of their valor. It was further urged, that the frontier militia are not only equal, but infinitely superior to any regular troops whatever, for the defence of the borders, and that they are, in fact, the only force that can be effectually employed in expeditions against the hostile Indians, whose mode of fighting is familiar to them, and does not strike them with that degree of terror with which it inspires those men who enlist on the regular establishment. These latter being collected in the heart of populous cities, where the face of an Indian is seldom seen, hardly know whether the Indian and his horse are not the same animal. And when they approach the enemy, at the very first shout, even before he is in view, they are terrified at the idea of savage barbarity, which they have ever been taught to reflect on with horror, and, being incapable of resistance, they commit their safety to flight. To prove the superiority of the militia, gentlemen need only contrast the despatch and success of the expedition conducted by General Scott, with the delays, disgrace, and mortification, which attended that under General St. Clair, and consider the difference of the expense on those two occasions. The expense of such an army as the bill contemplates is an object well worthy of serious consideration, especially at the present moment, when there is scarcely a dollar in the Treasury. Gentlemen would also do well to advert to the progress of this business, and consider where they were likely to stop, if they went on at the present rate. At first, only a single regiment had been raised, and the expense was about $100,000; a second was afterwards added, which swelled the expense to about $300,000; and now a standing force of 5,168 men is contemplated, at an annual expense of above a million and a quarter of dollars. Can this be justified in the present state of our finances, when it is well known that the Secretary of the Treasury, having been requested by the members from a particular State to build a light-house on a part of their coast, declined the undertaking, and alleged the want of funds as the reason? Our resources, however, might be made to answer for the support of such a force as that which was intended for the service of the preceding year, and there would be little complaint or dissatisfaction among the people. Very few murmurings were heard against the former establishment; but such a one as is now contemplated will be thought extravagant, will breed discontent among the citizens of the United States, and perhaps afford our neighbors in Canada an opportunity to take advantage of our divided situation, and involve us in a war more dangerous than the former which separated us from Great Britain. Apprehensions, it is said, are entertained that the object contemplated in raising these additional troops is not so much to punish and coerce the Indians, as to have a standing regular force equal to what the British have on this continent. This is said to amount to about six thousand men, including those in Canada. But it is to be remarked, that the British nation has not above _one thousand_ men within the limits of the United States; and yet, with this handful of troops, they not only keep the Indians in awe, but even, in opposition to the wishes of the United States, retain possession of those posts which should have been ceded to us pursuant to the terms of the treaty. Why, then, is it necessary, for the purpose of establishing posts and garrisoning them, to increase the standing force to so large a number as that contemplated in the clause under consideration? During our late arduous struggle for liberty, when we had to cope with the most powerful nation under heaven, the commander-in-chief had never at any one time above ten thousand men under his own immediate command; and if, with so small a force, we were able to effect so glorious a revolution, there can be no necessity of going such lengths at present, for the sake of establishing a military character. It is strange policy, indeed, to raise five or six thousand men to oppose a handful of Indian banditti, whose utmost amount does not, from the documents on the table, appear to exceed twelve hundred. We are preparing to squander away money by millions; and no one, except those who are in the secrets of the Cabinet, knows for what reason the war has been thus carried on for three years. But what funds are to defray the increased expense of maintaining such a force as is now contemplated? The excise is both unpopular and unproductive. The impost duties have been raised as high as is consistent with prudence. To increase them, would be but to open a door for smuggling, and thus diminish their productiveness. And if those sources of revenue fail--if our finances be thus exhausted in unnecessary wars--we shall be unable to satisfy, the public creditors, unless recourse be had to new taxes, the consequence of which may, with just reason, be deplored; whereas, if we but keep our expenses within bounds--if we nurse our finances--we shall be respectable among the nations of the earth, nor will any nation dare to insult us, or be able to do it with impunity. During the course of these observations, an honorable gentleman asked, whether this was a day set apart for rhetorical flourishes, as the galleries were open, and he saw the short-hand writers stationed at their different posts? At an early stage of the debate, an honorable gentleman had suggested, that, instead of passing a law for raising at all events the additional regiments, which, for his part, he did not think necessary, the House, if they finally determined the present establishment to be insufficient, would perhaps do better to appropriate a certain sum of money, to enable the Executive to call in such additional aid as circumstances may require. To this it was objected, that it is the duty of the Representatives of the people, in all appropriations of the public money, to make them for certain specific purposes. To act otherwise on the present occasion would be setting a precedent that might, in its consequences, prove highly injurious; for, although the greatest confidence may safely be reposed in the virtue and integrity of him who now fills the Presidential chair, it is impossible to foresee what use may hereafter be made of the precedent by his successors, or how far it may be carried. Against the motion for striking out, and in favor of the proposed augmentation of the military establishment, it was urged: That, as to the justice of the war carried on against the Indian tribes, that was a question which could not admit of a doubt in the mind of any man who would allow that self-preservation and indispensable necessity are sufficient causes to justify a nation in taking up arms. If the present war be not in every respect justifiable, then there never was, nor ever will be, a just war. It was originally undertaken, and since carried on, not for the sake of conquest, but to defend our fellow-citizens, our friends, our dearest connections, who are daily exposed, in the frontier settlements, to all the rage of savage barbarity, to which they, with their wives and children, must soon fall victims, unless we speedily fly to their assistance; and, although there are some people who utterly deny the justice of any war whatever, this doctrine, however fine in theory, will hardly ever obtain in practice; for, is it to be imagined, that any set of men are of such a passive disposition as calmly to look on whilst their friends and relations are butchered before their eyes, and to refuse giving them every assistance in their power? The murders and depredations which have for years past been repeatedly committed by the savages, loudly call for redress. From various documents of unquestionable authority, now in the hands of the Secretary of War, signed and attested by the Executive and Legislature of Kentucky, by the District Judge, and the Captains of the militia, it appears, that, from the year 1783 to 1790, there have been, of the inhabitants of that District, or of emigrants on their way thither, no less than fifteen hundred persons either massacred by the savages, or dragged into captivity, two thousand horses taken away, and other property plundered or destroyed to the amount of fifty thousand dollars. And there is good reason to suppose that on the other frontiers of Virginia and Pennsylvania the number of persons murdered or taken prisoners during the above-mentioned period would furnish a list of one thousand or fifteen hundred more. The white people, it is true, have sometimes committed depredations on the Indians; but the instances have been rare (the honorable gentleman who spoke did not recollect above one or two) of their making unjust attacks upon the savages; nor did they, on those occasions, commence hostilities against them till exasperated by the strongest provocations that could possibly stimulate the human heart. This circumstance may be justly allowed as some palliation of the offence. Even in these instances, however, a few individuals only were concerned; and, when the affair came to the knowledge of the State, ample reparation was made to the injured party. The General Government, too, had shown an equal disposition to do justice to the Indian tribes. Witness the affair of the Cherokees; for, as soon as Congress had heard their complaints of an encroachment made on them by some of the people from the frontier of the Carolinas, immediate orders were issued for obliging the intruders to evacuate the Indian territory. But, notwithstanding the disposition that prevails, as well in the Legislatures of those States whose frontiers are most exposed, as in the General Government, to cultivate peace and amity with the neighboring Indians, that desirable object is become utterly unattainable in the present posture of affairs. The frontier Indians have killed a number of whites; the whites, in their turn, have made retaliation. Both parties are in the highest degree exasperated against each other, and likely to continue so, in spite of every endeavor that can be made to effect a reconciliation. With minds thus irritated, it is vain to hope for peace, as long as they continue in each other's neighborhood. It is therefore necessary to form a strong barrier, to keep them asunder, unless, indeed, the advocates for a cessation of hostilities would oblige the frontier settlers to abandon their lands. But by what new-invented rule of right should the inhabitants of Kentucky, and the other frontier settlers, be laid under a greater obligation than any other citizens of the United States to relinquish a property legally acquired by their purchase? Were it even proposed to pacify the savages, by purchasing the lands anew, such a measure would answer no other purpose than that of procuring a temporary peace, which would soon again be interrupted by a war that would reproduce the necessity of again having recourse to the same expedient. We should have to purchase the lands again and again, without end. By thus squandering the public money, year after year, we should swell the national debt to an amount that we cannot possibly foresee. Better at once to make a vigorous effort, to act in a manner becoming the national dignity, and to maintain our ground by war, since we cannot obtain a durable or an honorable peace. Attempts have, at various times, been made to effect treaties of peace with the Indian tribes with whom we are now at war; and, although these efforts have constantly proved ineffectual, they yet show, that neither the United States nor the State of Virginia were backward on their part to adopt conciliatory measures, and to do away that animosity which had commenced on the part of the savages at an early period of the late war with Great Britain, and had continued to break out at intervals ever since. In the years, 1783, '84, '85, '87, '88, and '90, offers of peace were made to them. On the last-mentioned occasion, when a treaty was proposed at the Miami village, the Indians at first refused to treat. They next required thirty days to deliberate; and, in the interim, the inhabitants of Kentucky were expressly prohibited by the President of the United States from carrying on any offensive operations against them; yet, notwithstanding this forbearance on the part of the whites, no less than one hundred and twenty persons were killed or captured by the savages, and several prisoners roasted alive, during that short period, at the expiration of which, the Indians refused to give any answer at all. On another occasion, the Indians, not content with rejecting our offers of peace, proceeded even so far as to insult us, by telling us we have lands within the British posts, and asking us why we did not go and take possession of them? Will it be said that we are unable to do it? Is this language to be used within the United States? No! We _are_ able, abundantly able to do it, whenever we please; and if we would but retrench our expenses in some instances, which might well admit of a reduction, our ability would still increase; our finances are not quite so insufficient as some gentlemen seem to imagine, nor so easily deranged. We are still able to prove that the boasted efficiency of the General Government is something more than an empty name--we can yet raise both men and money sufficient to defend the nation from either injury or insult. It is now too late to inquire whether the war was originally undertaken on the principles of justice or not. We are actually involved in it, and cannot recede, without exposing numbers of innocent persons to be butchered by the enemy; for, though we should determine to discontinue the war, can it he said that the savages will also agree to a cessation of hostilities? It is well known that they are averse to peace; and even the warmest advocate of pacific measures must therefore allow that the war is a war of necessity, and must be supported. We cannot, without impeachment both to our justice and our humanity, abandon our fellow-citizens on the frontier to the rage of their savage enemies. And although the excise may be somewhat unpopular, although money may still be wanted; what is the excise? what is money, when put in competition with the lives of our friends and brethren? A sufficient force must be raised for their defence; and the only question now to be considered is, what that force shall be? Experience has proved, that the force employed in the last campaign was inadequate. It is true the establishment was not complete; but who will venture to assert that, if it had been complete, it would have been sufficient for the intended purpose? Are gentlemen who assert this so well acquainted with the circumstances of the enemy, as to be able to give an accurate statement of the amount of their forces on the frontier? There are stronger opinions in favor of an augmentation of the army than can be adduced against it--opinions given by men of judgment and experience, who have themselves been on the spot, and are well acquainted with the situation of affairs in that quarter. These gentlemen, who must be allowed to be competent judges, are decidedly of opinion that the present establishment, though completed to the last man, will not furnish an adequate force to carry on the war with effect; and that it will be a hopeless attempt to open another campaign, with less than about five thousand regular troops, the number contemplated in the bill. Nor ought that number to be deemed extravagant, under an idea that we have only a contemptible handful of banditti to contend with. Their numbers were, last year, from authentic documents, stated at about twelve hundred warriors, from twenty-three different tribes: such was the opposition then contemplated; but it is impossible to ascertain what accessions of strength they have since received, or even what force they had engaged in the late unfortunate action, as the very men who were in the engagement do not pretend to form any just or accurate estimate of the number of their assailants; but there is good reason to suppose that they had previously entered into an association with various tribes, that have not as yet come within our knowledge. The bows and arrows used against our troops on that occasion, afford a convincing proof that they had foes to encounter from distant nations, as yet unacquainted with the use of fire-arms. Nor does the account of the bows and arrows depend, for its authenticity, on newspaper evidence alone; gentlemen of unquestionable veracity, who were personally engaged in the action, have declared that they had themselves noticed the arrows flying. When we consider the warlike disposition of the Indians in general, and the alacrity with which the victors are ever sure to be joined by numerous allies, we have every reason to expect a much more formidable opposition in the next campaign. It is well known that the savages place all their glory in deeds of war; and that, among them, a young man cannot make his appearance in company till he has signalized his valor by some martial achievement. When, to this powerful incentive, a new stimulus is added by the trophies obtained in the late action, it is presumable that numbers will crowd to their standard; and it strongly behooves us to prepare in time for a much more vigorous effort than any we have yet made against them. The objections drawn from the increased expense, must entirely vanish from before the eyes of any man who looks forward to the consequences of one more unsuccessful campaign. Such a disaster would eventually involve the nation in much greater expense than that which is now made the ground of opposition. Better, therefore, at once to make a vigorous and effectual exertion to bring the matter to a final issue, than to continue gradually draining the Treasury, by dragging on the war, and renewing hostilities from year to year. If we wish to bring the war to a speedy and a happy conclusion, and to secure a permanent peace to the inhabitants on the frontier, we must employ such troops and adopt such measures as appear best calculated to ensure success. If we delay our determination until the force of the enemy be ascertained, we can make no provision at all; for the nature and circumstances of the case preclude us from the very possibility of obtaining a knowledge of their strength and numbers. And are we, meanwhile, to remain inactive and irresolute, and make no efforts to repel their intended attacks? No! Whatever their numbers may be, prudence calls aloud for provision of some kind. And if experience is to have any weight with us, the example of the French and of the British points out the true mode of securing our frontier, and rendering it invulnerable to an Indian foe. Let us occupy posts in the vicinity of the enemy, let them be properly garrisoned and well provided, and the business is done. These will afford an opportunity of trading with the friendly tribes, and will prevent all intercourse between the whites and the Indians, except under proper regulations. Should hostilities be meditated by any tribes who are not in amity with us, early intelligence of their movements can be obtained; their marauding parties may either be beaten off on their approach, or intercepted on their return; opportunities may be taken of separately attacking the hostile tribes; their old men, their squaws, their children, will be exposed a great part of the year, whilst the others are out hunting. In short, if fear, hope, interest, can be supposed to have any influence on the Indians, this mode of defence must be allowed to be preferable to any other, as giving the fullest scope to the operation of all those motives. A different mode has long been pursued in Virginia, and adopted by the inhabitants of Kentucky, but its success has not been such as to offer any inducement to the General Government to follow the same plan. Rangers have there been employed for a number of years to scour the frontiers; and those rangers, too, were expert woodsmen, perfectly inured to the Indian mode of warfare; yet, notwithstanding their utmost vigilance, these savages still found means to commit all the murders and depredations already enumerated. It is true, however, that a frontier militia man, trained up in the woods, may be, in many respects, preferable to a regular soldier, who has not the same knowledge of the country, and of the mode of fighting; but with equal experience, (and proper men possessed of that experience, may be enlisted on the establishment,) regular troops will be found infinitely superior to any militia upon earth. Every man who has ever seen militia in the field, cannot but know that a very trifling disaster, or a slight cause of discontent, is sufficient to make them disband, and forget all subordination, so far as even to neglect the means of self-defence; whereas regular troops, under proper discipline, and acting with greater steadiness and concert, are much more to be depended on, especially when the object of attack is distant, and great fatigue is to be undergone. The militia, in whatever mode they may be called out, will hardly furnish men of the proper description; if large pay be offered, the temptation will equally prevail upon those who are unfit for the service as it will upon good, effective men; besides, some of the States have no militia laws; and, even in those States which have such laws, they are gone into disuse; no dependence can therefore be placed on militia under any laws now existing. There is, indeed, a general militia law now before the House: but if it ever passes, it certainly cannot be passed in due season to answer the purpose of providing for the immediate defence of the frontier. Regular troops must be raised, or nothing effectual can be done; and if to avoid the expense we refuse the only aid that may prove of any real service, we render ourselves responsible for the consequences of this parsimonious policy, which may be attended with the ruin and destruction of our fellow-citizens in the Western country. The Cornplanter's speech was again mentioned and called for; but, as it had been confidentially communicated by the President, an objection was made to having it read, without clearing the galleries. Whereupon, An honorable member rose, and mentioned his having read it in one of the public newspapers in the State of New Jersey. To this it was answered, that if any gentleman had the newspaper to produce, the speech might be publicly read from that; otherwise, although it might be very proper that the speech itself should be read, yet, as it had been confidentially received from the Executive, there would be a manifest trespass on propriety and decorum in having it read with open galleries; it was therefore wished that the galleries might be cleared. The Parliamentary etiquette requiring that this should be done by the House, and not by a committee, the committee rose for the purpose; and, The Speaker having resumed the chair, the motion for clearing the galleries was renewed. An objection was here started by an honorable gentleman in favor of the augmentation, who said that, as some gentlemen had spoken on the popular side of the question, whilst the galleries had been open, it was unfair to preclude those of opposite sentiments from an opportunity of answering their arguments in the same public manner, and proving to the people the justice and necessity of the war. The motion, however, was persisted in, and the galleries were cleared.[42] [The speakers in this day's debate were Messrs. WAYNE, GOODHUE, BOUDINOT, LIVERMORE, STEELE, PARKER, BOURNE, (Rhode Island,) WHITE, and MOORE. Mr. WHITE and Mr. MOORE opposed the motion; they were in favor of the augmentation proposed in the bill. The other gentlemen were in favor of striking out the clause.] FRIDAY, January 27. _Protection of the Frontiers._ The House again resolved itself into a Committee of the whole House on the bill for making further and more effectual provision for the protection of the frontiers of the United States. Mr. MERCER rose and addressed the Chair as follows: Mr. Chairman: I originally opposed the reference of this subject to the Secretary of the Treasury, on principles supported by the constitution, by the theory of free government, and from practical observation on the progress of our own, and I believe the result now before us will fully exemplify every evil predicted. Let any man examine this bill, and compare it with the terms of the original reference. Let it then be asked, whether the submission to devise ways and means to provide for the defence of the Western frontier, authorized the plans proposed by the Treasury Department, that we are now giving sanction to? Did it authorize a perpetual tax, irrepealable by the whole Legislature, without a breach of faith, according to received doctrine? At least, so far placing the purse-strings in the hands of the Executive, who may refuse an assent to the repeal; in the power of the Senate also, and consequently beyond the reach of the Representatives of the people, who alone are deputized by, and may be recalled by the great mass of society, and to whom the constitution expressly confines the power of originating money bills. Have we, in truth, originated this money bill? Do we ever originate any money bill? If a reference, such as made to the Secretary, was proposed to the Senate, who are a branch of the Legislature, nearly of equal importance with ourselves, would it not be held a breach of the constitution? Were they to propose such a plan as this to us, would it not be received with indignation? Why so little jealousy of the Executive Department, separated by the constitution with so much care from us? Of the Treasury Department, too, which is considered in other countries as possessing and exercising the means of corruption? It is in my judgment a direct infraction of the letter and spirit of the constitution, of the principles of free government, and I have heard no attempt to defend it, but on the ground of pitiful evasion, more dishonorable to ourselves and dangerous to the public, than an open violation, that would rouse their resentment and ensure opposition. But did the submission of a provision to defend the frontier authorize a system for the encouragement of manufactures, thereby placing the occupations and productive labor of our citizens under the direction of Government, and rendering the living of the artist and subsistence of the farmer, so far equally dependent on and subservient to the views of Administration? Did it authorize an entire provision for the public debt, past, present, and to come? Did it authorize a plan for supplying former deficiencies, which it is admitted do not exist? Lastly, did it authorize an extensive increase of the Sinking Fund, which we are informed is one of the principal objects? It would be an affront to common sense to answer one of these queries in the affirmative--it authorized none of them. And yet these are all its offspring; these are the great objects it produced. It is true there are in the bill two or three little clauses that were authorized, and which relate to the submission, and which might well have escaped my attention, and would probably never attract the observation of the public, but for the title--a bill for the protection of the frontiers. By these clauses five hundred and twenty-three thousand dollars of the whole moneys to be for ever raised from its perpetual revenue, are appropriated for this year's campaign. After that sum is expended, we must, even the next year, look out for new taxes, and upon the same principles, as long as the Indian war continues (and by the enlistments it is not contemplated to be of very short duration) new taxes must be provided, for the residue of these taxes are by this bill appropriated to other purposes, for ever, after five hundred and twenty-three thousand dollars are paid. This appropriation is unalterable even by the whole Legislature, unless by a breach of public faith, or providing other equal revenue. Should every year's Indian war, and every national disaster excuse Government for laying a perpetual tax, equal to the increased annual demand, it will be selling us defeats at a very high price; and if Government are paid so well, they may be tempted to repeat the tragical representation. But what is the reflection that naturally arises from a contemplation of this bill. That Administration will not even permit us to defend the helpless women and children of the frontier from the brutal ferocity of a savage foe, but on condition that the Representatives surrender up for ever the sacred trust of the constitution, and place in the power and under the control of the Executive and Senate, a perpetual tax. Unless they throw the power of regulating the labor and industry of their fellow-citizens into the hands of Government, and into a mean dependence on Administration; and unless they furnish a large sum of money, under the denomination of a Sinking Fund, for the purposes of speculation, in order to raise and lower the price of stocks at pleasure, or as may suit the views and interest of the band of favorites that are in the secret. Hard and oppressive conditions! Was this the object of the reference to the Secretary? It was not the avowed one, nor could it have been suspected, from a simple proposition to devise ways and means to defend the frontier. A mighty fabric has been erected on this slight foundation, to hurry us into its adoption. We have been officially, I suppose, informed that the money for the War Department is almost expended; that the preparations for the Western expedition must stop, unless we pass the bill immediately; and thus, with the tomahawk suspended over our heads, we must give up to Administration the dearest interests of the people, and sacrifice the most sacred rights of the constitution. MONDAY, January 30. _Protection of the Frontiers._ The House again resolved itself into a Committee of the whole House on the bill making farther and more effectual provision for the protection of the frontiers of the United States; and, after some time spent therein, the Chairman reported that the committee had again had the said bill under consideration, and made several amendments thereto; when the same being read, some were agreed to, and others disagreed to. And then the said bill being before the House, a motion was made, and the question being put to amend the same, by striking out the second section thereof, in the words following: "_And be it further enacted_, That there shall be raised three additional regiments of infantry, each of which, exclusively of the commissioned officers, shall consist of nine hundred and twelve non-commissioned officers, privates, and musicians:" It passed in the negative--yeas 18, nays 34, as follows: YEAS.--John Baptist Ashe, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Nicholas Gilman, Benjamin Goodhue, William Barry Grove, Samuel Livermore, Nathaniel Macon, Nathaniel Niles, Josiah Parker, Israel Smith, John Steele, Thomas Sumter, George Thatcher, Artemas Ward, Hugh Williamson, and Francis Willis. NAYS.--Fisher Ames, Abraham Baldwin, Robert Barnwell, Egbert Benson, John Brown, Jonathan Dayton, William Findlay, Thomas Fitzsimons, William B. Giles, Andrew Gregg, Thomas Hartley, Daniel Huger, Philip Key, Aaron Kitchell, John W. Kittera, John Laurance, Amasa Learned, James Madison, Andrew Moore, Frederick Augustus Muhlenberg, William Vans Murray, John Page, Cornelius C. Schoonmaker, Joshua Seney, William Smith, Samuel Sterrett, Jonathan Sturges, Peter Sylvester, Thomas Tredwell, Thomas Tudor Tucker, Abraham Venable, Jeremiah Wadsworth, Anthony Wayne, and Alexander White. The farther consideration of the said bill was then postponed until to-morrow. TUESDAY, January 31. The Speaker laid before the House a letter from the Secretary of War, covering his report on the petitions of James Swaine, Abraham Springer, Timothy Mountford, sundry seamen, Samuel Wail, for himself and servant, John Carnaghan, James Shields, Henry Skinner, and William Loring; which were read, and ordered to lie on the table. _Protection of the Frontiers._ The House resumed the consideration of the bill for making farther and more effectual provision for the protection of the frontiers of the United States; and the same being further amended, was _Ordered_, To be engrossed, and read the third time to-morrow. WEDNESDAY, February 1. Mr. PAGE, from the committee to whom was referred the petition of John Churchman, made a report; which was read, and ordered to lie on the table. _Protection of the Frontiers._ An engrossed bill for making farther and more effectual provision for the protection of the frontiers of the United States, was read the third time, and the blanks therein filled up; and on the question that the said bill do pass, It was resolved in the affirmative--yeas 29, nays 19. FRIDAY, February 3. A message from the Senate informed the House that the Senate recede from their amendments, disagreed to by this House, to the bill to establish Post Offices and Post Roads within the United States, and do agree to the amendments proposed by the House to their amendment to the said bill. _The Cod Fisheries._ The House resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled, "An act for the encouragement of the Bank and other Cod Fisheries, and for the regulation and government of the fishermen employed therein." The first section being read as follows: "_Be it enacted, &c._, That the bounty, now allowed upon the exportation of dried fish of the fisheries of the United States, shall cease on all dried fish exported after the tenth day of June next; and in lieu thereof, and for the more immediate encouragement of the said fisheries, there shall be afterwards paid, on the last day of December annually, to the owner of every vessel or his agent, by the collector of the district where such vessel may belong, that shall be qualified agreeably to law, for carrying on the Bank and other cod fisheries, and that shall actually have been employed therein at sea, for the term of four months at least, of the fishing season next preceding (which season is accounted to be from the last day of February, to the last day of November in every year) for each and every ton of such vessel's burden, according to her admeasurement, as licensed or enrolled; if of twenty tons and not exceeding thirty tons, one and a half dollars, and if above thirty tons, two and a half dollars, of which bounty three-eighth parts shall accrue and belong to the owner of such fishing vessel, and the other five-eighths thereof shall be divided by him, his agent or lawful representative, to and among the several fishermen who shall have been employed in such vessel, during the season aforesaid, or a part thereof, as the case may be, in such proportions as the fish they shall respectively have taken may bear to the whole quantity of fish taken on board such vessel during such season. _Provided_, That the bounty, to be allowed, and paid on any vessel for one season, shall not exceed one hundred and seventy dollars." Mr. GILES expressed some doubt respecting the principle of the bill; and for the purpose of collecting the sense of the committee on the subject, he thought the most effectual means would be a motion to amend the bill, by striking out the whole section. He accordingly made the motion, observing at the same time, that he could not positively assert, whether the reasons which determined him against the principle of the bill, were well founded or not; that, in matters where a local preference is given, it is necessary to accommodate; and he would be happy if his objections could be removed. The present section of the bill appears to contain a direct bounty on occupations; and if that be its object, it is the first attempt as yet made by this Government to exercise such authority; and its constitutionality struck him in a doubtful point of view; for in no part of the constitution could he, in express terms, find a power given to Congress to grant bounties on occupations: the power is neither directly granted, nor (by any reasonable construction that he could give) annexed to any other power specified in the constitution. It might perhaps be brought in under a mode of construction already adopted by the House, viz: that of "ways and ends," by which any power whatever might be equally implied; but he wished ever to see some connection between a specified power, and the means adopted for carrying it into execution. There is a great difference between giving encouragement, and granting a direct bounty. Congress have a right to regulate commerce; and any advantage thereby resulting to a particular occupation connected with commerce, comes within that authority; but when a bounty is proposed to a particular employment or occupation, this is stepping beyond the circle of commerce; and such a measure will affect the whole manufacturing and agricultural system. In all cases, the revenue, to be employed in this bounty, is drawn from all the sources of revenue in the United States, and confined to a particular object. He was averse to bounties in almost every shape, as derogations from the common right; and he thought there would be no great difficulty in proving, that a government is both unjust and oppressive in establishing exclusive rights, monopolies, &c., without some very substantial merit in the persons to whom they are granted; although even in that case, the propriety of such grants is still questionable. Under a just and equal government, every individual is entitled to protection in the enjoyment of the whole product of his labor, except such portion of it as is necessary to enable Government to protect the rest; this is given only in consideration of the protection offered. In every bounty, exclusive right, or monopoly, Government violates the stipulation on her part; for, by such a regulation, the product of one man's labor is transferred to the use and enjoyment of another. The exercise of such a right on the part of Government can be justified on no other principle, than that the whole product of the labor of every individual is the real property of Government, and may be distributed among the several parts of the community by governmental discretion; such a supposition would directly involve the idea that every individual in the community is merely a slave and bondman to Government, who, although he may labor, is not to expect protection in the product of his labor. An authority given to any government to exercise such a principle, would lead to a complete system of tyranny. He entertained fewer doubts, respecting the principle, as it regards political economy. All occupations that stand in need of bounties, instead of increasing the real wealth of a country, rather tend to lessen it; the real wealth of every country consisting in the active product of useful labor employed in it. It is therefore bad policy to encourage any occupation that would diminish, instead of increasing the aggregate wealth of the community; and if an occupation is really productive, and augments the general wealth, bounties are unnecessary for its support; for when it reimburses the capital employed, and yields a profit besides, it may be said to support itself. When it fails in these points, any forced advantage that is given to it by the Government, only tends to decrease the wealth of the country. The subject, however, might be considered in a more favorable point of view: and that is, whether the provision be essential to the defence of the United States, and whether the bounties proposed in the bill were more than equivalent to the portion of defence that would be procured by them. The bill does not (in his opinion) contain that kind of encouragement, which is essential to the national defence. Any man who takes a view of this country, must be convinced that its real support rises from the land, and not from the sea; and the opposite mistake must have arisen merely from a servile imitation of the conduct of Great Britain: the inhabitants of this country heretofore thought favorably of her Government, and the Revolution has not yet altered their former ideas respecting it. But the circumstances of the two countries will, on examination, be found widely different; Britain, surrounded by the sea on every side, finds a navy necessary to support her commerce; whilst America, possessed of an immense territory, and having yet ample room to cultivate that territory, has no occasion to contend by sea with any European power: her strength and her resources are all to be found within the United States; and if she but attends to her internal resources, the object of national defence will be much better answered. Mr. G. next proceeded to consider whether that portion of the national defence which might be derived from the fisheries, would not be purchased at too high a price. Although the apparent intention of the bill is only to convert the present existing drawbacks into a bounty; yet the drawbacks being allowed only to the actual exportation of the fish, and the bounty being granted on the tonnage of the fishing vessels, there can be no comparative value between the drawback and the bounty; they have no necessary relation to each other, and the latter may exceed the former, or the former exceed the latter. He had made a calculation, and upon the most favorable principles, grounded on the Reports of the Secretary of the Treasury and the Secretary of State. Here he produced a calculation, tending to show that the proposed bounty on the tonnage of the fishing vessels, would considerably exceed the amount of the present drawbacks. From a comparison between the bounty, and the number of sailors employed in the fisheries, he showed what an expense each man would be to the United States; and, after other remarks, observed, that even Great Britain, whose whole national support and defence depends on her navy, had found, that the men employed in the fisheries, though so necessary for that defence, had cost her too much; that America, whose consequence, as a nation, does not depend on a navy, ought to take a lesson from the experience of Britain: that he did not wish to enter into a competition with Britain and France, in supplying the different markets with fish; that, as those nations are able to hold out greater encouragement to their fishermen, than we can to ours, we would, by such a competition, only exhaust the Treasury of the United States to no purpose; and upon this principle alone, he thought there was some reason to doubt the policy of the measure proposed in the section under consideration, which therefore he hoped the committee would agree to strike out, unless his objection could be obviated. Mr. MURRAY observed, that in order to demonstrate the propriety of the measure, it would be incumbent on the friends of the bill, first, to prove that the fishery trade is in a state of decay, that the stock employed in it does not yield the ordinary profits, so as to justify the merchants in embarking their capital in this branch of trade: that there is a system of defence in contemplation, which the circumstances of the country call for, and which this trade is calculated to furnish; that other branches of trade, which do not stand in need of encouragement, are not equally capable of furnishing seamen for the purpose: that this particular object so peculiarly claims the attention and encouragement of the United States, as to leave far behind every consideration of the manufacturing interest, the agricultural, &c. All this he thought necessary for gentlemen to prove, and to show some very strong necessity for encouraging one particular class of men, in preference to all others. Mr. GOODHUE.--It happens that the fisheries of the United States are almost entirely confined to the State of Massachusetts; and they furnish a considerable, a principal portion of our export trade. As we are a part of the United States, the United States in general are interested in the prosperity of that branch of business, so far at least as it contributes to the national defence: it furnishes a copious nursery of hardy seamen, and offers a never-failing source of protection to the commerce of the United States. If we engage in a war with any European power, those seamen will be excluded from their ordinary employment, and must have recourse to privateering. During the late war with Great Britain, we annoyed the enemy more in that line than in all others; and had it not been for privateering, it would often have been impossible to keep together our armies, who frequently, in the hour of need, were supplied by the privateers with ammunition and clothing, of which they were wholly destitute. All that we wish to obtain by this bill is, that we may not be burdened with duties. An opinion has been entertained, that no drawbacks ought to be allowed on the re-exportation of articles imported from foreign countries; but if this opinion were to obtain in practice, and no drawbacks were to be admitted, we must confine our importation to articles for our own consumption. The drawback allowed by the existing law, on the exportation of salt fish, was calculated to be only equal to the duty beforehand paid on the quantity of salt used in curing the fish; but the fishermen complain that, as the act now stands, they are wholly excluded from any participation in the benefit, which centres entirely in the coffers of the merchants. The object of the present bill is, only to repay the same money into the hands of those persons who are immediately concerned in catching the fish; and there can no reasonable objection be made to such a transfer of the drawback, as Government will not lose a single dollar by the change. The gentleman from Virginia (Mr. GILES) talks of the unconstitutionality of granting bounties; but no bounty is required. We only ask, in another mode, the usual drawback for the salt used on the fish. If we can make it appear that the bill does not contemplate any greater sums to be drawn from the Treasury, than are already allowed, it is to be hoped that no further opposition will be made to the measure; and that this is really the case, can be proved by documents from the Treasury office. Here he read a statement and calculation to prove his assertion; and to show that the United States will probably pay one thousand dollars per annum less in the proposed bounties on the tonnage of the fishing vessels, than they would in the drawbacks on the exportation of the fish. The fishermen, he continued, are now under no control; and in consequence of this want of a proper restraint, they often take whims into their heads and quit the vessels during the fishing season. To prevent the inconveniences of this practice, the bill contemplates their exclusion from the bounty, unless they enter into such contracts and regulations, as may be found necessary for the proper and successful conducting of the business, which, from our advantageous situation, would be entirely in our hands, if we did not meet with such opposition and discouragement from foreign nations, whose bounties to their own fishermen, together with the duties laid upon our fish, would, to persons less advantageously situated than us, amount almost to a total prohibition. In the Report from the Secretary of State, a drawback is contemplated of the duties on all foreign articles, used by the seamen employed in the fishing trade, such as coffee, rum, &c.; but we ask it on the salt alone; nor is it asked as a bounty, but merely as a transfer from the hand of the merchant to that of the fishermen. Mr. WHITE had no objection to give the trade a proper degree of encouragement; but he did not relish the idea of granting bounties; if any gentleman would prepare an amendment, so as to make them drawbacks in fact, as well as in words, he would consent to the measure. Mr. AMES, after some introductory observations, adverted to the necessity of fixing some point in which both sides would agree. Disputes, he said, could not be terminated--or, more properly, they could not be managed at all, if some first principles were not conceded. The parties would want weapons for the controversy. Law is in some countries the yoke of government, which bends or breaks the necks of the people; but, thank Heaven, in this country, it is a man's shield--his coat of mail--his castle of safety. It is more than his defence: it is his weapon to punish those who invade his rights--it is the instrument which assists--it is the price that rewards his industry. If I say that fishermen have equal rights with other men, every gentleman feels in his own bosom a principle of assent. If I say that no man shall pay a tax on sending his property out of the country, the constitution will confirm it; for the constitution says, _no duty shall be laid on exports_. If I say, that on exporting dried fish, the exporter is entitled to drawback the duty paid on the salt, I say no more than the law of the land has confirmed. Plain and short as these principles are, they include the whole controversy. For I consider the law allowing the drawback as the right of the fishery, the defects of that law as the wrong suffered, and the bill before us as the remedy. The defects of the law are many and grievous. Supposing 340,000 quintals exported---- The salt duty is $42,744 The drawback is only 34,000 -------- Loss to the fishery 8,744 Whereas Government pays $45,900, at 13-1/2 cents, including charges, which are 3-1/2 cents on a quintal: which is beyond what the fishery receives 11,900 -------- Being a clear loss to the Government of 3,156 So that, though the whole is intended for the benefit of the fishery, about one-fourth of what is paid is not so applied: there is a heavy loss both to Government and the fishery. Even what is paid on the export is nearly lost money; the bounty is not paid till the exportation, nor then, till six months have elapsed; whereas the duty on salt is paid before the fish is taken: it is paid to the exporter, not to the fisherman. The bounty is so indirect, that the poor fisherman loses sight of it. It is paid to such persons, in such places, and at such periods, as to disappoint its good effects; passing through so many hands, and paying so many profits to each, it is almost absorbed. The encouragement, too, is greatest in successful years, when least needed; and is least in bad fishing seasons, when it is most needed. It is a very perplexed, embarrassing regulation to the officers of Government and to the exporter; hence the great charge: and, with all this charge and trouble, it is liable to many frauds. Four hundred miles of coast, little towns, no officer. All these defects the bill remedies; and, besides, gives the money on condition that certain regulations are submitted to, which are worth almost as much as the money. The bill is defended on three grounds. First, it will promote the national wealth; second, the national safety; third, justice requires it: the last is fully relied on. To show that the fishery will increase the wealth of the nation, it cannot be improper to mention its great value. The export before the war brought more than a million of dollars into this country; probably it is not less at present, and no small part in gold and silver. It is computed that thirty thousand persons, including four thousand seamen, subsist by it. Many say, very composedly, if it will not maintain itself, let it fall. But we should not only lose the annual million of dollars which it brings us; an immense capital would be lost. The fishing towns are built on the naked rocks, or barren sands, on the side of the sea. Those spots, however, where trade would sicken and die--which husbandry scorns to till--and which nature seems to have devoted to eternal barrenness, are selected by industry to work miracles on. Houses, stores, and wharves, are erected, and a vast property created, all depending on this business. Before you think it a light thing to consign them to ruin, see if you can compute what they cost; if they outrun your figures, then confess that it would be bad economy, as well as bad policy, to suffer rival nations to ruin our fishery. The regulations of foreign nations tend to bring this ruin about. France and England equally endeavor, in the language of the Secretary of State, to mount their marine on the destruction of our fishery. The fishers at Newfoundland are allowed liberal bounties by the English Government; and, in the French West Indies, we meet bounties on their fish and duties on our own, and these amount to the price of the fish. From the English islands we are quite shut out; yet such is the force of our natural advantages, that we have not yielded to these rivals. The Secretary of State has made these statements in his Report. The more fish we catch, the cheaper; the English fish will need a greater bounty: whereas if we should yield, the English would probably need no bounty at all; they would have the monopoly. For example; suppose the English can fish at two dollars the quintal--we catch so much that we sell at one dollar and two-thirds: the loss to them is one-third of a dollar on each quintal. They must have that sum as a bounty. Whereas, if we increase our fishery, a greater and a greater bounty is needed by foreign nations. The contest so painfully sustained by them must be yielded at last, and we shall enjoy alone an immense fund of wealth to the nation, which nature has made ours; and though foreigners disturb the possession, we shall finally enjoy it peaceably and exclusively. If the lands of Kentucky are invaded, you drive off the invader; and so you ought. Why not protect this property as well? These opinions are supported by no common authority. The State of Massachusetts having represented the discouragements of the fishery, the subject has received the sanction of the Secretary of State; he confirms the facts stated in the petition; he says it is too poor a business to pay any thing to Government. Yet, instead of asking bounties, or a remission of the duties on the articles consumed, we ask nothing but to give us our own money back, which you received under an engagement to pay it back, in case the article should be exported. If nothing was in view, therefore, but to promote national wealth, it seems plain that this branch ought to be protected and preserved; because, under all the discouragements it suffers, it increases, and every year more and more enriches the country, and promises to become an inexhaustible fund of wealth. Another view has been taken of the subject, which is drawn from the naval protection afforded, in time of war, by a fishery. Our coasting and foreign trade are increasing rapidly; but the richer our trade becomes, the better prize to the enemy: so far from protecting us, it would be the very thing that would tempt him to go to war with us. As the rice and the tobacco planter cheerfully pay for armies, and turn out in the militia to protect their property on shore, they cannot be so much deceived as to wish to have it left unprotected when it is afloat; especially when it is known that this protection, though more effectual than the whole revenue expended on a navy could procure, will not cost a farthing; on the contrary, it will enrich while it protects the nation. The coasters and other seamen, in the event of a war, would be doubly in demand, and could neither protect themselves nor annoy the enemy to any considerable degree; but the fishermen, thrown out of business by a war, would be instantly in action. They would, as they formerly did, embark in privateers; having nothing to lose, and every thing to hope, they would not dishonor their former fame. Their mode of life makes them expert and hardy seamen. Nothing can be more adventurous. They cast anchor on the banks, three hundred leagues from land, and with a great length of cable ride out the storms of winter. If the gale proves too strong they often sink at their anchors, and are food for fish which they came to take: for ever wet, the sea almost becomes their element. Cold and labor in that region of frost, brace their bodies, and they become as hardy as the bears on the islands of ice: their skill and spirit are not inferior: familiar with danger, they despise it. If I were to recite their exploits, the theme would find every American heart already glowing with the recollection of them; it would kindle more enthusiasm than the subject has need of. My view is only to appeal to facts, to evince the importance of the fishery as a means of naval protection. It is proper to pass over Bunker's Hill, though memorable by the valor of a regiment of fishermen; nor is it necessary to mention, further, that five hundred fishermen fought at Trenton. It is known, that the privateers manned by fishermen, in want of every thing, not excepting arms, which they depended on taking from their enemies, brought into port warlike stores of every kind, as well as every kind of merchandise sufficient for the army and country: the war could not have been carried on without them. Among other exploits almost beyond belief, one instance is worth relating: these people, in a privateer of sixteen guns, and one hundred and fifty men, in one cruise took more than twenty ships, with upwards of two hundred guns, and nearly four hundred men. The privateers from a single district of Massachusetts, where the fishery is chiefly seated, took more than two thousand vessels, being one third of the British merchant vessels, and brought in near one thousand two hundred. A hundred sail of privateers, manned by fishermen, would scour every sea in case of a war. The first question is, how much does Government receive by the duty on the salt used in curing the fish which is exported? The quantity of fish must be known. Several ways of information are to be explored. The Secretary of State supposes the fish of 1790 to be 354,276 quintals. A Treasury return of fish exported from August 20, 1789, to September 30, 1790, which is thirteen and one-third months, is 378,721 quintals. For a year, equal to 340,849 quintals. Foreign dried fish imported from August 15, 1789, to August, 1790, 3,701 quintals; five per cent. drawback thereon is only three hundred and ten dollars, at one dollar and sixty-six cents per quintal. Mr. GILES is mistaken in supposing that foreign fish deducts $16,000 from our estimate. Return of fish in seven months, from May 30, to December, 1790, exported, all fish of the United States, 197,278 quintals: which, for a year, is 338,184 quintals. The medium may be fairly taken for the time past at 340,000 quintals a year. Six gentlemen of Marblehead certify, that 5,043 hogsheads, or 40,344 bushels of salt, were used on 38,497-1/2 quintals; which, for 340,000 quintals, gives 356,200 bushels. The duty, at twelve cents, is $42,744, which Government receives. But the charge to the United States, is, at thirteen and a half cents per quintal $45,900 Whereof the fishery receives ten cents on each quintal exported 34,000 ------ Charges as the law stands 11,900 Further, this is but an estimate made up from what the last year proved. The next may be very different, and probably it will be. If more money should be demanded than $44,000, we must not be accused of misleading Congress. But in that case an increase would be made by law; for the more fish is exported, the more thirteen and a half cents must be paid; so that the bill creates no burden in that way. But the increase of the export of fish will probably operate in favor of Government. For it is known that the economy, skill, and activity of the fishery are making progress. Its success has progressed. The more fish to a vessel, the cheaper the allowance on the tonnage. Therefore, the tonnage of vessels will not increase in a ratio with the increase of the fish. The very objections prove this. For they deem the encouragement too great. But any encouragement must have the effect. The difference of the agreements for distributing the fish according to the present practice, or by this bill, makes a great one in the quantity taken. The bill reforms the practice in this point. Marblehead vessels take less than those from Beverly. The former throw the fish into a common stock, which is afterwards divided upon a plan very unfriendly to exertion. A man works for the whole--perhaps twelve hours, and they take about eight hundred quintals to a vessel. But in Beverly, the exertion is as great as can be made; eighteen hours a day, because each man has what he catches, and they catch eleven hundred quintals. Marblehead seamen sailing from other towns, and dividing as last mentioned, which the bill establishes, seldom fail to catch two or three hundred quintals more than vessels and men from Marblehead on the first plan. Accordingly, I assert on good authority, that the increase in Marblehead only may be computed at fifteen thousand quintals, merely in consequence of the reform by the bill. The best informed persons whom I have consulted, entertain no doubt that the export, in case the bill should pass, would not be less than four hundred thousand quintals, probably more; but at four hundred thousand quintals, it would add seven thousand two hundred dollars more to the salt duty; a sum more than equal to any estimate of the actual tonnage, or any probable increase of it $42,744 7,200 ------ Salt duty on 400,000 quintals 49,944 Other facts confirm the theory, that skill and exertion are increasing in this business. In 1775, 25,000 tons, 4,405 seaman. Fish sold for $1,071,000. In 1790, three-fourths of the seamen and three-fourths of the tonnage take as much fish. It is owing to this that our fishery stood the competition with foreign nations. Finally, the average in future may be relied on not to be less than 350,000 quintals. Salt duty on which $43,944 Bounties 44,000 ------ Wanted 56 The calculations first made will answer the purpose, 340,000 quintals pay salt duty $42,744 Tonnage bounty 44,000 ------ Wanted 1,256 This is the mighty defect. Observe the authentic return of the export of fish may be, and we can almost prove it to be, below the future export. Whereas, to banish all doubt, we go to the top of the scale for the tonnage, we take what we know to be the utmost. This we might have represented more favorably if we had chosen to conceal any thing. But even this will answer our purpose. For two hundred tons are wanting in the estimate of the bounties, being nineteen thousand eight hundred, not twenty thousand, which will take off one-third of the deficient sum. The tonnage over sixty-eight, which receives nothing, is not mentioned; and which probably is not less than another third. The boats under five tons, though trifling, are to be noticed--they receive nothing. But, above all, the chances of non-compliance with the regulations are in favor of the remainder of the twelve hundred and fifty-six dollars being stopped. Boats may not get twelve quintals to the ton, or vessels may have their voyages broken up, and not stay four months on the fishing ground; in either case they would receive nothing. Take all these together, is it not to be doubted that twelve hundred and fifty-six dollars will remain of the forty-four thousand in the Treasury? But these are trifles which I cannot believe gentlemen are anxious about. For the event cannot be reduced to a certainty. What quantity of fish will be exported, no man can tell now. But as Government may receive more than it will pay, the chance may turn the other way, and it may have to pay a few hundred dollars more than it will have received. We have seen that the chance is most in favor of Government. But one chance must balance the other. This answer is sincerely relied on as a good one. I barely mention that the wear of cordage, cables, sails, and anchors, is very great. These articles, on being imported, pay duties. So that it is probable the extra duty paid by the fishery on their extra consumption, will overbalance any little sums supposed to exceed in the bounty. It has been asked, as if some cunning was detected, why if the money received in the Treasury to pay the drawbacks is equal to the proposed bounties, a further appropriation should be made? This cunning question admits of several very simple answers. The bill being for seven years, the average product is the proper sum to be calculated. But the three first years may fall short of the bounties, say two thousand dollars a year, which is six thousand dollars. The four last may exceed two thousand dollars, say eight thousand dollars. Shall a poor fisherman wait for the whole, or if he takes his part according to the money in the Treasury--for a twenty-fourth part of the bounty on his vessel, from 1792 to 1795? 2d. This delay would happen after a bad year, the very time when he would most need prompt pay. 3d. But fish taken this year will not be exported till December next. Therefore the money will not be stopped by the drawback as the law stands, till six months after. A substitute has been proposed for the clause, to appropriate the drawback only. This is absolutely improper. For the ten cents allowed as drawback is but a part of the duty paid on salt. It is not easy to see any reason why a part stopped at the Treasury should be equal to the whole paid there long before. The drawback falls near nine thousand dollars short of the salt duty received by the Government. The expense of the drawback would be very heavy and useless. Nor may gentlemen apprehend that Government, by paying next December, will advance money to the fishery. The salt duty will have been paid, and Government will have the use of the money many months before the fishermen will have a right to call for the bounties. It is left to the candor of the gentlemen who have urged this objection, whether a better or further answer is desired. After having laboriously gone through the estimate of the probable export of fish, it will not be necessary to be equally minute as to the quantity or kind of vessels which are to receive the bounty. The estimate we believe to be very high. That it is high enough, we suppose very probable from the estimate of the Secretary of State, which is only nineteen thousand one hundred and eighty-five tons. This mode of paying the bounty on the tonnage is very simple and safe. The measurement is already made and costs nothing; and as it was made to pay a duty on tonnage, we are very sure that Government will not be cheated by an over-measure. The mode of paying the drawback, as the law now stands, is expensive, perplexed and embarrassing; liable to frauds and delays. This intricate and disgusting detail of calculations was necessary to satisfy the committee that each of the three grounds of defence on which the bill rests, is tenable. Instead of impoverishing the nation by scattering the treasures of the whole to benefit a part, it appears that we are preserving a mine of treasure. In point of naval protection, we can scarcely estimate the fishery too highly. It is always ready, always equal to the object; it is almost the only sufficient source of security by sea. Our navigation is certainly a precious interest of the country. But no part of our navigation can vie with the fishery in respect to the protection it affords. There is no point which regards our national wealth or national safety, in respect to which it seems practicable to do so much with so little. We rely on the evidence before you, that the public will not sustain the charge of a dollar. Those ought not to doubt the evidence who cannot invalidate it. If then the fishermen ask you to restore only their own money, will you deny them? Will you return to every other person exporting dutied goods the money he has paid, and will you refuse the poor fisherman? If there must be an instance of the kind, will you single out for this oppressive partiality, that branch which is described by the Secretary of State as too poor even to bear its own part of the common burden; that branch which nevertheless has borne the neglect of our nation, and the persecution of foreign prohibitions and duties; a branch which, though we have received much and expect more, both of money and services, urges no claims but such as common justice has sanctioned? Mr. GERRY having moved to strike out the words "bounty allowed" in order to insert _allowance made_, by way of accommodation, Mr. MURRAY observed, that the question was, whether a bounty should be given for the encouragement of the fishery: the amendment proposed by the gentleman from Massachusetts (Mr. GERRY) did not alter the principle--it was still "_the old cocked hat_" on the one hand, and on the other, "_the cocked old hat_:" the gentleman from Pennsylvania (Mr. FITZSIMONS) had asserted, that Congress have a right to alter the drawbacks, and allow them in any other mode, by which the citizens may receive back their own money; but this is not a case of that nature; for the bill says, "in case the moneys appropriated (_for the payment of the duties_) shall be inadequate, the deficiency shall be supplied from the Treasury;" here the Treasury is pledged for the payment of the bounties; and the question is, not on the principle of changing the drawback, but the giving encouragement to a particular branch, at the expense of the community at large. Mr. BARNWELL observed, that those who are best acquainted with the fisheries, look on the proposed mode of encouragement as the best; and that they ought to be allowed to use the gifts of the public in the most advantageous manner: that, if he were himself concerned in the cultivation of any particular commodity, for the encouragement of which a sum were granted, he would be much surprised to meet a refusal, in case he should come forward and propose some more effectual mode of applying that grant: that even if the bounties should happen to exceed the drawbacks, by eight or ten thousand dollars, the number of seamen to be maintained would be well worth that sum: that whenever the two Houses of Congress and the President of the United States are of opinion that the general welfare will be promoted by raising any sum of money, they have undoubted right to raise it, provided that the taxes be uniform; that although it may not at present be an object of great consequence to America to become a maritime power, yet it is of some importance to have constantly at hand a nursery of seamen, to furnish our merchants with the means of transporting their commodities across the sea; that, whatever allowance or bounty is granted upon any particular commodity, must ever be paid by the whole, for the advantage of a part, whether it be upon cotton to the Southward, upon fish to the Eastward, or upon other commodities to the Middle States; that if the people cannot have so much confidence in their Representatives, as to trust them with the power of granting bounties, the Government must be a very paltry one indeed. The object of the bill was only to allow to the fishermen, in the manner that would be most beneficial to them, the same sum that would otherwise be allowed. If, however, from time and experience, it should appear that this bounty proved an imposition on Government, he would not hesitate to revoke it. Mr. GERRY.--The State of Massachusetts asks nothing more than equal justice. We do not come forward to request favors from the United States, we only wish that the same system which is applied to other parts of the Union, may be applied to us. But, in examining this question, we wish that gentlemen would not make distinctions which will not admit of a difference. The proposed allowance has been called a bounty on occupation, and is said to be very different from that encouragement, which is the incidental result of a general commercial system; but in reality it is no bounty: a bounty is a grant, made without any consideration whatever, as an equivalent; and I have no idea of a bounty, which admits of receiving from the person, on whom it is conferred, the amount of what is granted. We have imposed a duty on salt, and thereby draw a certain sum of money from the fishermen; the drawback is, in all instances, the amount of the money received; this is all we ask; and we ask it for a set of men who are as well entitled to the regard of Government as any other class of citizens. It has been supposed, that the allowance made to the fishermen, will amount to a greater sum than the drawback on the exportation of the fish; but I think it has been clearly shown that this will not be the case: on the contrary, it is presumable, that the drawback on the fish would on the whole exceed the sum which is proposed to be allowed to the fishermen; sometimes it might be more, sometimes less. The calculation is made on general principles; and it is impossible to calculate to a single cent: the quantity of salt to be expended on the fish, cannot be minutely ascertained; but this was not heretofore considered as a sufficient reason why Congress should refuse to allow the drawback; they allowed it, though in a different shape. It is now proposed to make a further commutation: gentlemen call this a bounty on occupation; but is there any proposition made for paying to the fishermen, or other persons concerned in the fishery, any sums which we have not previously received from them? If this were the case, it would indeed be a bounty; but if we beforehand receive from them as much as the allowance amounts to, there is no bounty granted at all. If, however, it really was a bounty on occupation, it would after all be only an indulgence similar to what has been granted to the landed and agricultural interest. We have laid on hemp a duty of fifty-four cents per hundredweight; and on beer, ale, and porter, five cents per gallon. Now, I ask gentlemen, whether the professed design of those duties was to raise a revenue, or to prevent the importation of those articles? They were laid for no other purpose, than to prevent foreigners from importing them, and thereby to encourage our own manufactures; and was not that encouragement a bounty to the persons concerned in producing such articles in this country? If the duties had not been laid, the importer could sell much cheaper than he now can; and the landed interest would be under a necessity of selling cheaper in proportion. If those prohibitory duties operate as a bounty in favor of raising hemp, and of brewing beer, ale, and porter, I ask, whether, if a bounty were proposed on every quintal of fish, it might not, with the same propriety, be granted? If we have not a right to grant a bounty in the one case, we have as little right to grant it in the other. A calculation has been offered to show that the proposed allowance will exceed the amount of the present drawbacks, by ten thousand dollars a year; but that calculation has been proved to be erroneous. Suppose, however, that this was the fact, what comparison is there between such a tax on the citizens of the United States, and the tax borne by the citizens of Massachusetts, for the defence of the Western frontier? A commercial war is waged against the American fisheries, by foreign nations, who lay heavy duties on the American fish, and apply the produce of those duties in bounties to their own fishermen; and their fisheries being less extensive than ours, the duty thus imposed on our fish, and bestowed in bounties to their vessels, operate in a twofold proportion to the discouragement of our fishermen, and the encouragement of theirs. I wish to know on what principle gentlemen can expect, that the citizens of Massachusetts should contribute two hundred thousand dollars, or perhaps a greater sum, for the protection of the Western frontier against the Indians, when no contribution is made to support the commerce of Massachusetts, which, without this support, will be as effectually ruined, as if their vessels were captured by an enemy. The principle is carried farther with respect to the protection of the frontier: we have voted large sums as presents to the savages, to keep them friends to the frontier settlers; there is, however, no clause in the constitution that will authorize a measure of this kind: it is true, indeed, we have a power to regulate trade and commerce with the Indian tribes; but does that give us a power to render the United States tributary to the savages? and if we make them such grants every year, do we not in fact become tributary to them? The gentleman from Virginia (Mr. GILES) says that although this plan of encouraging the fisheries may be wise policy in Britain, as being on all sides surrounded by the sea, yet the United States will not equally find their account in pursuing the same plan. The State of Virginia is, in point of exposure from the sea, very differently circumstanced from the State of Massachusetts: _we_ have a vast extent of country four hundred and fifty miles of sea-coast, exposed; the citizens of all the towns along the coast are obliged to pursue marine occupations and I hope the gentleman does not wish that the country should be depopulated, and the inhabitants driven off to settle the Western territory. The State of Virginia is very happily circumstanced with respect to a marine war: should such an event take place, that State is pretty secure from depredations; but when we consider how much the inhabitants of Massachusetts are exposed in a case of that kind, we ought to look forward, and make some provision for their defence: they have as good a right to expect that Government will make some arrangements for their protection, as that they shall be obliged to contribute for the defence of the Western frontier. But their commerce, it seems, must not be supported! Taxes however must be laid; and those taxes applied to encourage the former, and to bribe the Indians into peace! Is this fair? Is this pursuing a liberal system of politics? Will this reconcile the minds of our people to the General Government? If so reasonable a proposition be neglected by the House, it will convince the citizens of that State, that it is the object of Government to destroy their commerce, and to make them entirely dependent on the agricultural interest. Here Mr. GERRY read a statement, to show the diminution of the revenue in consequence of the failure of the fisheries; and added, To support the fisheries, is to support the revenue: by that staple, the citizens of Massachusetts are enabled to pay the revenue that is expected from them; and, by an attempt to save ten thousand dollars, Government will probably sacrifice a hundred thousand; and besides, lose the confidence of the citizens of that State. The only question now is, whether this be a direct bounty, or simply a commutation of the allowance already granted by Congress? If the latter be the case, I can see no reason why we should refuse our assent to a proposition, which is only calculated to do justice to the people concerned, and to give encouragement to a very important branch in the United States; especially as the proposition will even have a tendency to increase the revenue. Mr. WILLIAMSON.--It has been urged with great propriety, in favor of the bill now submitted to our consideration, that the operation of our laws should in all cases tend to encourage useful industry; that while we are giving back the duties on all other foreign goods which are exported, it would be unjust and cruel to refuse a full drawback of the duties on salt which may be exported, especially when the circumstances of its exportation are attended with an increase of riches and strength to the nation. Impressed as I am with the force of these arguments, and desirous as I am to protect and encourage the native seamen of America, by all prudent, practicable, and constitutional means, I shall nevertheless find it my duty to vote for striking out the first section of the bill, because it proposes to give a bounty for the encouragement of the vessels employed in the fisheries. We have been told that the name is improper; that it is simply a drawback of the duty upon salt; and gentlemen have produced a very ingenious calculation, by which they attempt to prove, that in some years it may happen that the whole duty on the salt will not be repaid; but they admit that in some years the drawback or bounty will exceed the duty. It is certainly their opinion--and in this we are perfectly agreed--that the money to be paid will be more than that received, else there had been no use for so large an appropriation. We shall not trouble the committee with calculations on this subject. It is conceded, that the encouragement to be given, probably will exceed the full drawback of the duty on salt. In other words, a douceur or a proper bounty is to be given: let us call it one thousand dollars per annum. Is it within the powers of this Congress to grant bounties? I think not; and on this single position I would rest the argument. In the constitution of this Government there are two or three remarkable provisions, which seem to be in point. It is provided, that direct taxes shall be apportioned among the several States according to their respective numbers. It is also provided, that all duties, imposts, and excises, shall be uniform throughout the United States; and it is provided, that no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another. The clear and obvious intention of the articles mentioned was, that Congress might not have the power of imposing unequal burdens; that it might not be in their power to gratify one part of the Union by oppressing another. It appeared possible, and not very improbable, that the time might come, when, by greater cohesion, by more unanimity, by more address, the Representatives of one part of the Union might attempt to impose unequal taxes, or to relieve their constituents at the expense of other people. To prevent the possibility of such a combination, the articles that I have mentioned were inserted in the constitution. Suppose a poll-tax should be attempted; suppose it should be enacted that every poll in the Eastern States shall pay a tax of half a dollar, and every poll in the Southern States should pay a tax of one dollar. Do you think we should pay the tax? No certainly. We should plead the constitution, and tell you that the law was impotent and void. But we have been told, that Congress may give bounties for useful purposes; that is to say, they may give bounties for all imaginable purposes; because the same majority that votes the bounty will not fail to call the purpose a good one. Establish the doctrine of bounties, and let us see what may follow. Uniform taxes are laid to raise money, and that money is distributed--not uniformly; the whole of it may be given to the people in one end of the Union. Could we say, in such a case, that the tax had been uniform? I think not. There is certainly a majority in this House who think that the nation would be stronger and more independent, if all our labor was performed by free men. This object might be promoted by a bounty. Let a poll-tax be laid, according to the constitution, of one dollar per poll: in this case, sixty cents must be paid for each slave; and the number of slaves being 680,186, their tax would amount to $334,911. To encourage the labor of citizens, let Congress then give an annual bounty of one dollar to every free man who is a mechanic, or who labors in the field. We might be told that the bounty was small, and the object was good; but the measure would be most oppressive, for it would be a clear tax of rather more than three hundred thousand dollars on the Southern States. Perhaps the case I have put is too strong--Congress can never do a thing that is so palpably unjust--but this, sir, is the very mark at which the theory of bounties seems to point. The certain operation of that measure is the oppression of the Southern States, by superior numbers in the Northern interest. This was to be feared at the formation of this Government, and you find many articles in the constitution, besides those I have quoted, which were certainly intended to guard us against the dangerous bias of interest, and the power of numbers. Wherefore was it provided that no duty should be laid on exports? Was it not to defend the great staples of the Southern States--tobacco, rice, and indigo--from the operation of unequal regulations of commerce, or unequal indirect taxes, as another article had defended us from unequal direct taxes? I do not hazard much in saying, that the present constitution had never been adopted without those preliminary guards in it. Establish the general doctrine of bounties, and all the provisions I have mentioned become useless. They vanish into air, and like the baseless fabric of a vision, leave not a trace behind. The common defence and general welfare, in the hands of a good politician, may supersede every part of our constitution, and leave us in the hands of time and chance. Manufactures, in general, are useful to the nation; they promote the public good and general welfare. How many of them are springing up in the Northern States? Let them be properly supported by bounties, and you will find no occasion for unequal taxes. The tax may be equal in the beginning--it will be sufficiently unequal in the end. We are told, that a nursery of seamen may be of great use to the nation, and the bounty proposed is a very small one. These, sir, are the reasons why I have marked this as a dangerous bill; the most dangerous innovations are made under these circumstances. To begin with a great bounty would be imprudent, and to give a small bounty for a doubtful purpose, might deserve a worse epithet. Half a million of dollars per annum would have been too much for a beginning, and perhaps a bounty on the use of sleighs, though they are convenient for travelling in winter; or a bounty on stone fences, though they are durable, would not at this time be prudent. The object of the bounty, and the amount of it, are equally to be disregarded in the present case; we are simply to consider whether bounties may safely be given under the present constitution. For myself, I would rather begin with a bounty of one million per annum than one thousand. I wish that my constituents may know whether they are to put any confidence in that paper called the constitution. You will suffer me to say, that the Southern States have much to fear from the progress of this Government, unless your strength is governed by prudence. The operation of the funding system has translated at least two millions of dollars from the Southern States, that is to say, from Georgia, the Carolinas, and Virginia, to the Northern States. The interest of that sum, when it shall be six per cent., will be $120,000; but the quota of those States is at least one-third of the whole; whence it follows, that they must pay forty thousand dollars every year, in the form of interest to the Northern States. This, it seems, is not sufficient, and other measures are to be adopted for draining the Southern States. Bounties to promote the general welfare are already brought forward. We shall not hear of a bounty for raising rice, or preparing naval stores. If that was the question, the general welfare would not have such prominent features. Unless the Southern States are protected by the constitution, their valuable staples, and their visionary wealth, must occasion their destruction. Three short years has this Government existed--it is not three years--but we have already given serious alarms to many of our fellow-citizens. Establish the doctrine of bounties, set aside that part of the constitution which requires equal taxes and demands similar distributions, destroy this barrier, and it is not a few fishermen that will enter, claiming ten or twelve thousand dollars, but all manner of persons--people of every trade and occupation--may enter at the breach, until they have eaten up the bread of our children. Perhaps I have viewed this project in too serious a light; but if I am particularly solicitous on the subject of finance, that we do not even seem to depart from the spirit of the constitution, it is because I wish that the Union may be perpetual. The several States are now pretty well relieved from their debts, and our fellow-citizens in the Southern States have very little interest in the national funds; press them a little with unequal taxes, and the remedy is plain. While I would shun bounties, as leading to dangerous measures, I am not inattentive to every argument that has been advanced by the honorable member who first rose in defence of the bill. That gentleman tells us, that more than a bushel of salt is used in curing a quintal of fish. If this fact be established, the former act should be amended, by giving a greater drawback. He says the drawback, as it is now paid to the merchant, does not operate so as to encourage the seamen, who have most need of such assistance. This is very probable, and the parties may be relieved by dividing the drawback in the very manner that is proposed by the bill. If it is true that the proposed bounties will not exceed the average of the drawback that should be paid on salt, why do they contend about names, unless they are solicitous about the precedent? If our object is to encourage industry, and to increase our commerce, by sending fish to a foreign market, we must adhere to the drawback; for, according to the terms of the bill, the bounty is to be paid, though every fish that is caught should be consumed in the country; in which case we should be paying a visionary drawback, when nothing was exported. According to the terms of the bill, there is no proportion between the labor and the reward, so far as the bank fishery is concerned; the bounty in all cases being the same. Having exercised your patience in objecting to this new system of bounties, and having hinted on some objections to the general operations of the bill, so far as industry and enterprise may be desired, I shall, in a few words, submit the outline of a plan that seems to comprehend all the useful parts of the bill, without any speculation upon bounties. If the drawback on dried fish exported, is not equal to the duty on the salt used in curing such fish, let the drawback be increased to eleven cents or twelve cents, as the case may be. Let us suppose that the drawback for the next year will be equal to the drawback on the last year; and let that sum of money, being the expected drawback, be divided between the seamen and owners, according to the terms of the bill. The accounts must be made up annually. If the drawback exceeds the allowance that had been made, the difference will be considered as advanced to the fishery, and the allowance for the next year must be somewhat reduced, according to the actual amount of the drawback. If the fishermen are more fortunate or more active, and the exports are increased, the allowance for the next year must be raised. The rule being fixed by law, all that remains, being pure calculation, may be done from year to year by the Executive. Every important object of this bill, that has been presented to our view, may be obtained by safe and constitutional steps. Why should a man take a dangerous and a doubtful path, when a safe one presents itself? If nothing more is desired than to regulate and protect the fishery, the bill may be altered and accommodated to that purpose. If the theory of bounties is to be established, by which the Southern States must suffer while others gain, the bill informs us what we are to expect. The committee now rose, without taking any question. MONDAY, February 6. A member from Maryland, to wit, JOHN FRANCIS MERCER, returned to serve in the room of WILLIAM PINKNEY, resigned, appeared, and took his seat in the House. A petition of the tanners of the town of Newark, in the State of New Jersey, was presented to the House and read, stating the inconveniences they suffer from the erection of mills for the purpose of grinding tanners' bark for exportation, and praying that Congress will adopt such measures for their relief as may appear just and right. Ordered to lie on the table. _The Cod Fisheries._ The House again resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act for the encouragement of the Bank and other Cod Fisheries, and for the regulation and government of the fishermen employed therein." Mr. GOODHUE.--The gentleman last up (Mr. WILLIAMSON) says, that an appropriation of money being made by the bill now before us, and the Treasury standing pledged for the payment, therefore a direct bounty is granted. At present, we pay in drawbacks about $45,000; but we cannot say that this sum will be adequate to the payment of the drawbacks next year; for, if a greater quantity of fish be taken, a greater sum, of course, must be allowed; and, as the sum depends entirely on the quantity of fish, it is impossible to ascertain beforehand the precise amount. There is not, however, in the whole bill, any thing of a bounty except the bare name. The gentleman allows that we may commute the present drawbacks, and give them to the fisherman instead of the merchant; but it is impossible to do this with safety in any other mode than that pointed out in the bill. Shall we leave it to the fisherman, to be determined by his oath? This would not be advisable. The plan proposed is a much less exceptionable one. It is founded on a calculation that a certain quantity of tonnage is employed in taking a certain quantity of fish. On this calculation the allowance is apportioned to the tonnage. If gentlemen think the allowance too high, let the sum be reduced; but let it not be stigmatized as a bounty. It is no such thing. The word "bounty" is an unfortunate expression, and I wish it were entirely out of the bill. Mr. LIVERMORE.--The bill now under consideration has two important objects in view. The one is, to give encouragement to our fishermen, and, by that encouragement, to increase their numbers; the other is to govern those fishermen by certain laws, by which they will be kept under due restraint. Both these objects are of great importance to such persons as choose to employ their capitals in the fishery business. And I believe it will not be disputed that the business itself is of considerable importance to the United States, insomuch as it affords a certain proportion of remittance or exportation to foreign countries, and does not impoverish the country, but enriches it by the addition of so much wealth drawn from the sea. It is the object of those gentlemen who favor the bill that the fishermen should have some encouragement, not given to them at the expense of the United States, but directed to them out of what was in the former law called a drawback of the duty on salt. The calculation, as I understand it, has been made as nearly as possible to give that drawback, not to the merchants who export the fish, but to the fishermen who take it, in order to increase that description of men, without whose assistance it is vain to expect any benefit from the fisheries; for, if the merchants at present engaged in that branch possessed the whole capital of the United States, yet, if they cannot get fishermen, they cannot carry on the fishery. This is done by a particular class of men, who must be not only expert seamen, but also accustomed to taking the fish and curing it. If these men cannot be had, the capital cannot be employed, and those who undertake the business cannot carry it on, or reap any profit from it. Whilst the drawback is payable only to the merchant who exports the fish, it is impossible to convince the fishermen that they reap from it any advantage whatever; or, if the more discerning among them do perceive any advantage in it, the others who are not so clear-sighted cannot discern it, and are therefore not disposed to undertake the business. It is, however, of considerable importance to the merchants that the fisherman should receive a proper encouragement, even if they were obliged to allow him a bounty out of their own pocket. The government of the fishermen, after their engagement in this business, is also necessary to be provided for; otherwise, frequent instances may occur among that class of men of quitting one vessel to embark on board another, or of shipping themselves for a foreign voyage, before the expiration of the fishing season. In the latter case, the vessel lies useless on the owner's hands, and he, together with the whole expense of the outfit, loses all his prospects of future gain. The two objects here mentioned are fully provided for in the bill. Still, however, it is objected to. But what is the objection? It is, that the word "_bounty_" is twice used in this clause. Let us now see what advantage will result from striking out this obnoxious "_bounty_." None at all. The bill says it shall cease; and have gentlemen any objection to the bounty's ceasing? Since the bounty is to cease by this bill, what advantage in striking it out? The sense would still remain the same; and I do not know why we should make a law expressly to strike out the word "bounty," but to strike out the bounty itself. It is strange to me that any gentleman, whether he is for giving a great bounty or no bounty at all, should quarrel with this unfortunate word. There is, indeed, one part of the section which I will readily consent to strike out, and I believe every other gentleman who is in favor of the bill will consent to it likewise; and that is the clause which provides that the bounty to be allowed and paid on every vessel for one season, shall not exceed one hundred and seventy dollars. If, when the vote is taken on the section, there does not appear a majority of the House in favor of striking out the whole, we may then move for striking out the _proviso_, if it be offensive to any gentleman. If it be not offensive, it may remain. If gentlemen are disputing only because the word "_bounty_" is in the bill, they may be perfectly relieved from their uneasiness on that score; for the bill expressly says, "that the bounty now allowed upon the exportation of dried fish of the fisheries of the United States shall cease, and in lieu thereof," a different kind of encouragement is to be given. Here is no reason to dispute about a word. If gentlemen are disposed to consent to the principle of the bill, that the drawback of the duties on salt shall be commuted for a certain sum, to encourage the fishermen, they will vote in favor of the bill; if not, they will vote against it. But it is impossible for me to conceive why any gentleman under heaven should be against it. It is only fixing, for the merchants engaged in this branch, a clear and equitable ratio for distributing among the fishermen that encouragement which they think necessary in order to attach those people to the business, and to prevent them from going to other occupations on land. The bill is an important one, and will increase that branch of business, which is very useful to the community. It does not lay a farthing of bounty or duty on any other persons than those who are immediately concerned in it. It will serve them, and will not injure any body. Mr. LAURANCE said, from examining the section, he conceived it contemplated no more than what the merchant is entitled to by existing laws. The merchant is now entitled to the drawback; but it is found by experience that the effect has not been to produce that encouragement to the fishermen which was expected; and he presumed the way was perfectly clear to give a new direction to the drawback, and this is all that is aimed at in the bill. He supposed that the clause had no necessary connection with the question which had been started respecting the right of the Government to grant bounties; but, since the question has been brought forward, it may be proper to consider it. In discussing the question, he inquired, What has Congress already done? Have we not laid extra duties on various articles, expressly for the purpose of encouraging various branches of our own manufactures? These duties are _bounties_ to all intents and purposes, and are founded on the idea only of their conducing to the _general interest_. Similar objections to those now advanced were not made to these duties. They were advocated, some of them, by gentlemen from the Southward. He traced the effects of these duties, and showed that they operated fully as indirect bounties. Mr. L. then adverted particularly to the constitution, and observed that it contains _general_ principles and powers only. These powers depend on _particular_ laws for their operation; and on this idea, he contended that the powers of the Government must, in various circumstances, extend to the granting bounties. He instanced, in case of a war with a foreign power, will any gentleman say that the General Government has not a power to grant a bounty on arms, ammunition, &c., should the general welfare require it? The general welfare is inseparably connected with any object or pursuit which in its effects adds to the riches of the country. He conceived that the argument was given up by gentlemen in opposition to the bill, when they admit of encouragement to the fishermen in any possible modification of it. He then adverted particularly to the fisheries, stated the number of men employed, the tons of shipping necessary to export the fish taken, and inferred the sound policy of encouraging so important a branch of business. Gentlemen say that we do not want a navy. Grant it; but can they say that we shall never have a war with any European power? May not the time arrive when the protection to the commerce of this country, derived from this source, may be of the utmost necessity to its existence? Adverting to Mr. WILLIAMSON's objection from the unequal operation of bounties, and who had referred to the article of the constitution which says that taxes shall be equal in all the States, Mr. L. observed, that this article in the constitution could only respect the _rates_ of the duties, and that the _same_ duties should be paid in Virginia that are paid in New York--at the Northward as at the Southward. It surely could not mean that every individual should pay exactly the same sum in every part of the Union. This was a provision that no law could possible contemplate. He concluded by a summary recapitulation of his arguments, and saying he hoped the section would be retained. Mr. MADISON.--In the conflict I feel between my disposition on one hand to afford every constitutional encouragement to the fisheries, and my dislike, on the other, of the consequences apprehended from some clauses of the bill, I should have forborne to enter into this discussion, if I had not found, that over and above such arguments as appear to be natural and pertinent to the subject, others have been introduced which are, in my judgment, contrary to the true meaning, and even strike at the characteristic principles of the existing constitution. Let me premise, however, to the remarks which I shall briefly offer, on the doctrine maintained by these gentlemen, that I make a material distinction, in the present case, between an allowance as a mere commutation and modification of a drawback, and an allowance in the nature of a real and positive bounty. I make a distinction also, as a subject of fair consideration at least, between a bounty granted under the particular terms in the constitution, "a power to regulate trade," and one granted under the indefinite terms which have been cited as authority on this occasion. I think, however, that the term "bounty," is in every point of view improper as it is here applied, not only because it may be offensive to some, and in the opinion of others carries a dangerous implication, but also because it does not express the true intention of the bill, as avowed and advocated by its patrons themselves. For if, in the allowance, nothing more is proposed than a mere reimbursement of the sum advanced, it is only paying a debt; and when we pay a debt, we ought not to claim the merit of granting a bounty. It is supposed by some gentlemen, that Congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawbacks, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the "general welfare." This, sir, in my mind, raises the important and fundamental question, whether the general terms which had been cited, are to be considered as a sort of caption or general description of the specified powers, and as having no further meaning, and giving no further power than what is found in that specification; or as an abstract and indefinite delegation of power extending to all cases whatever; to all such, at least, as will admit the application of money, which is giving as much latitude as any government could well desire. I, sir, have always conceived--I believe those who proposed the constitution conceived, and it is still more fully known, and more material to observe that those who ratified the constitution conceived--that this is not an indefinite Government, deriving its powers from the general terms prefixed to the specified powers, but a limited Government, tied down to the specified powers which explain and define the general terms. The gentlemen who contend for a contrary doctrine are surely not aware of the consequences which flow from it, and which they must either admit or give up their doctrine. It will follow, in the first place, that if the terms be taken in the broad sense they maintain, the particular powers afterwards so carefully and distinctly enumerated would be without any meaning, and must go for nothing. It would be absurd to say, first, that Congress may do what they please, and then that they may do this or that particular thing; after giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to superadd a power to raise armies, to provide fleets, &c. In fact, the meaning of the general terms in question must either be sought in the subsequent enumeration which limits and details them, or they convert the Government from one limited, as hitherto supposed, to the enumerated powers, into a Government without any limits at all. It is to be recollected, that the terms "common defence and general welfare," as here used, are not novel terms, first introduced into this constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered as clear and certain, that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it ever was supposed or suspected that the old Congress could give away the moneys of the States in bounties, to encourage agriculture, or for any other purpose they pleased? If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it. The novel idea now annexed to these terms, and never before entertained by the friends or enemies of the Government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete Legislative power I have stated--it would do more--it would supersede all the restrictions understood at present to lie on their power with respect to the Judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits between citizen and citizen, and in all cases whatsoever. This, sir, seems to be demonstrable; for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a Judiciary Establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws and apply money, providing in any other way for the general welfare. I shall be reminded, perhaps, that according to the terms of the constitution, the Judicial Power is to extend to certain cases only, not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen that the specification of certain objects does not limit the import of general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of Legislative regulation, as well such as fall under the Judiciary article in the constitution, as those falling immediately under the Legislative article; and if the partial enumeration of objects in the Legislative article does not, as these gentlemen contend, limit the general power, neither will it be limited by the partial enumeration of objects in the Judiciary article. There are consequences, sir, still more extensive, which, as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads, other than post roads. In short, every thing, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare. The language held in various discussions of this House, is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this Government, as limited to certain enumerated powers, instead of extending, like other Governments, to all cases not particularly excepted. In a very late instance--I mean the debate on the Representation bill--it must be remembered, that an argument much urged, particularly by a gentleman from Massachusetts, against the ratio of one for thirty thousand, was, that this Government was unlike the State Governments, which had an indefinite variety of objects within their power; that it had a small number of objects only to attend to, and therefore that a smaller number of Representatives would be sufficient to administer it. Several arguments have been advanced to show, that because, in the regulation of trade, indirect and eventual encouragement is given to manufactures, therefore Congress have power to give money in direct bounties, or to grant it in any other way that would answer the same purpose. But surely, sir, there is a great and obvious difference, which it cannot be necessary to enlarge upon. A duty laid on imported implements of husbandry, would, in its operation, be an indirect tax on exported produce; but will any one say, that by virtue of a mere power to lay duties on imports, Congress might go directly to the produce or implements of agriculture, or to the articles exported? It is true, duties on exports are expressly prohibited; but if there were no article forbidding them, a power directly to tax exports could never be deduced from a power to tax imports, although such a power might directly and incidentally affect exports. In short, sir, without going further into the subject, which I should not have here touched on at all but for the reasons already mentioned, I venture to declare it as my opinion, that were the power of Congress to be established in the latitude contended for, it would subvert the very foundation, and transmute the very nature of the limited Government established by the people of America; and what inferences might be drawn, or what consequences ensue from such a step, it is incumbent on us all well to consider. With respect to the question before the House, for striking out the clause, it is immaterial whether it be struck out, or so amended as to rest on the avowed principle of a commutation for the drawback; but as a clause has been drawn up by my colleague, in order to be substituted, I shall concur in a vote for striking out, reserving to myself a freedom to be governed in my final vote by the modification which may prevail. Mr. BOURNE, of Massachusetts-- Mr. Chairman: I think little can be added after so full a discussion of the subject before you. The object of the first section in this bill is intended for the relief of the fishermen and their owners. They complain that the law now in force was meant for their benefit, by granting a drawback on the fish exported; this they find by experience is not the case, for they say, that neither the fishermen who catch the fish, nor the importer of the salt, receive the drawback; and I rather suppose, sir, it is the case. The owners of the greater part of the fishing vessels are not merchants, neither do they import the salt they consume; but when the fish they take are cured for market, they are sold at the market price; and it frequently happens that those persons who purchase the fish are not the exporters of them, or the importers of the salt, but a third person, who purchases with a prospect of selling them at a profit, is the exporter; and when it so happens, neither the fisherman who catches the fish, nor the importer of the salt, receives any benefit from the drawback, unless the purchaser (the third person) give a greater price in contemplation of the drawback, which I think is not to be supposed. Is it worthy the attention of Government that the cod fishery should be preserved? It appears to me that it is. When we consider the labor and assiduity bestowed on this object by our Ministers, at the settlement of peace between us and Great Britain, and the care then taken to secure this privilege, as appears by the treaty--[here Mr. B. read that part of the treaty which secures to us the fishery, he then proceeded]--and consider the struggle made to deprive us of this inestimable branch of commerce, I cannot suppose that any one would, at this day, voluntarily relinquish it, and suffer Great Britain to monopolize this branch, and supply the Mediterranean, French, and other markets. Great Britain, at present, enjoys a sufficient portion of this commerce, while France is confined to the narrow limits of St. Peters and Miquelon. If we relinquish this branch of the cod fishery, what is left us? Our whale fishery is nearly at an end, and unless Government speedily interpose, by granting relief, we shall totally lose it. Does not the British Government wish to deprive us of this branch also? Have not letters of agents been sent to the island of Nantucket, as well as New Bedford, where this branch of business is principally prosecuted, inviting the whale fishermen to remove, and offering them permanent settlements at Milford-Haven, at the expense of their Government? This must be viewed as a great encouragement, in addition to their bounties on oil, to a class of poor men employed in that business. If the cod fishery is relinquished, the fishermen have only to remove to the opposite shore of Nova Scotia, where they will find encouragement fully adequate to their services--of all which they are not unapprised. By encouraging this class of men, your revenue will be increased; for in return for the fish exported, you will receive sugar, coffee, cocoa, indigo, molasses, pimento, cotton, dye-woods, rum, wine, salt, fruit, and other articles subject to duty, and consumed in the country. And again, your Treasury will receive an excess by the provision in this bill; for I presume the greater proportion of vessels employed in this business are from twenty to forty tons; the town of Marblehead, perhaps, has principally large ones. Suppose, then, a vessel of thirty tons obtains, in a season, six hundred quintals of fish? (a very moderate voyage indeed,) her tonnage is seventy-five dollars; the drawback on exportation would be seventy-eight dollars; so that your Treasury retains three dollars gain by this bill, which would be a loss on the drawback. Mr. Chairman, I think, upon the whole, that granting the encouragement to the fishermen and their owners, held out in the bill, would prove very beneficial to the United States; I hope, therefore, the section before you will not be struck out. At this point, the committee rose, and had leave to sit again. TUESDAY, February 7. _Ordered_, That the petitions of the tanners of the town of Newark, in the State of New Jersey, which was presented yesterday, be referred to Mr. BOUDINOT, Mr. WHITE, Mr. THATCHER, Mr. BOURNE, of Rhode Island, and Mr. NILES; that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House. Mr. BENSON, from the committee appointed, presented a bill for an apportionment of Representatives among the several States, according to the first enumeration, and making provision for another enumeration, and apportionment of Representatives thereon, to compose the House of Representatives after the third day of March, 1797; which was received and read the first time. The SPEAKER laid before the House a letter from the Secretary of the Treasury, accompanying his report stating the amount of the subscriptions to the loans proposed by the act making provision for the public debt, as well in the debts of the respective States as in the domestic debt of the United States, and of the parts which remain unsubscribed, together with such measures as are, in his opinion, expedient to be taken on the subject, pursuant to an order of this House of the 1st of November last; which were read, and ordered to be committed to a Committee of the whole House on Monday next. _The Fishery Bill_ The House again resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act for the encouragement of the Bank and other Cod Fisheries, and for the regulation and government of the fishermen employed therein." Mr. PAGE said no man in this House was more heartily disposed to encourage the fisheries of the United States than he was; nor could any one more sincerely wish to encourage the bold, active, and enterprising adventurers in that branch of our commerce to persevere in it, than he did; being sensible of the importance of their traffic in peace, and of their defence of their country and annoyance of their enemies in war. But, sir, (said Mr. P.,) I much doubt whether Congress can give that encouragement to the fisheries to which they are entitled, and which policy would lead the General Government to give, were it not restricted by the constitution. I consider, sir, the constitution as intended to remedy the defects of the Confederation to a certain degree; so far only as would secure the independence and general welfare of the Confederated States, without endangering the sovereignty and independence of the individual States. Congress, therefore, was authorized to pay the debts of the Union, and to regulate commerce, partly for that purpose, and partly to prevent improper and dangerous commercial combinations, jealousies, and altercations between the States. But Congress was not intrusted with any regulation of exports which could admit of an interposition which might be dictated by partiality; nor was Congress permitted to lay any tax which could by any possibility operate unequally on the States in general. It is said, indeed, that, if a drawback be not allowed on the salt used in salting fish, there will be, in fact, a duty on the exportation of the fish. But to this I think it may be replied, that the constitution guards the exports of each State against the possibility of a _partial_ restriction by Congress, or even by the States themselves; that Congress cannot lay a duty on the exportation of rice, indigo, tobacco, &c., or any other article exported from any State, because this might be done to the injury of the State where such duty would operate, and to the advantage and aggrandizement of some particular States, its competitors more favored by the General Government, or possessing more influence in the debates of Congress; and that the States are also individually restrained from laying such duties without the consent of Congress, to prevent acts which might produce jealousies, commercial combinations, and, perhaps, at length, civil dissensions. That this restriction, if it be intended to prevent partiality, therefore, cannot extend to authorize drawbacks, which may be productive of partial preferences and their consequent jealousies; that if drawbacks be granted at all, they ought to be universally extended to every article which is or can be exported from any of the States, having in its composition a dutiable ingredient; that hence, ships and other vessels, &c., should have drawbacks on the sails, cordage, iron, &c.; but it may also be said that, as to the duty on salt, that is amply repaid to the merchant by the price annexed to his fish; the sums laid out in salt and fish together form a capital on which he takes care to have a sufficient profit. Those merchants employed in this traffic, if allowed a drawback, would have a preference to other merchants, who import largely, pay heavy duties, and have no other advantage than the usual advance on their goods. The exporter of any article, with a drawback, must have an advantage over his fellow-citizens, who purchase through necessity many dutiable articles, and are obliged to consume them, without any other benefit than the use of them. I mention this because it has been said (by Mr. AMES) that, having made the men of Marblehead pay for salt, they have a right to demand the money expended in that salt on the exportation of their fish; for it would be as reasonable for the man who had ate his fish on which his salt was expended, or who had used any other article for which he had paid a duty, to claim of Congress a return of his money expended therein, as the exporter of fish. The only difference is, that, if both were paid the exact sum so expended by them, the exporter of fish would get twice paid. The purchaser or consumer of his fish would pay him for his salt therein, as if it were substantial fish, and the State for it as mere salt. Here, then, is a field for partiality, discontent, and complaints, which the constitution wisely guards against. It cannot, therefore, be to any purpose to tell us that a bounty, or allowance, as it is now called, is preferable to a drawback, as there is not so great room for fraud in the one as in the other; nor can it be of importance to show that the fishermen have not the profits to which they are entitled. That their services in the last war deserve rewards, &c., their country shared with them the glory of their gallant behavior; but they alone received the rewards they aimed at. The twelve hundred ships they took were a compensation for services and a reward for those exploits. It is true, they annoyed the enemy; it is certain their prizes sometimes fed, armed, and clothed our armies; but it is not said that they did not receive payment for furnishing those things. But here we are asked, Is it not of great consequence to the United States to employ those bold, skilful seamen in our service, that we may enjoy the commercial advantage they give us in peace, and their powerful assistance in war? To this I reply, that it ought first to be proved that Congress has the power and authority to give them the encouragement demanded; and even if Congress have that power, it ought to be shown that it can be extended to the benefit of the sailors of some of the States, and not to those of every State. It may be said that Congress may with as much propriety give bounties to our hunters in the Western country, to raise up a nursery of soldiers as a barrier against the Indians, and to promote the fur trade, as to give drawbacks and bounties to the fishermen of the Eastern States, with a view to encourage fisheries, and to raise a nursery of seamen for their defence against enemies who may invade our Eastern frontiers. Indeed, if defence be the object in view, we might as well give bounties to sturdy landsmen to be in readiness and constant training for war. Indeed, sir, I confess I am not altogether convinced, that, if Congress have this power, it ought to be thus exerted; because it is not clear to me that those fishermen would not be more profitable to the United States, if they were cultivating the lands which now lie waste, and raising families, which would be of ten times more value than their fisheries. A nursery of virtuous families, which will produce soldiers, sailors, husbandmen, and statesmen, must be preferable to a mere nursery of sailors, who generally live single, and often perish at sea. I always look upon the loss of a crew to an infant Republic as the loss almost of a new State. I speak of this question, however, as a citizen of the United States, as a member of this House. Were I to discuss it as a citizen of Massachusetts, and in their Legislature, I should say, as the State is nearly filled with inhabitants, and our fishermen increase our commerce in peace, protect us in war, and, indeed, even enrich us by their prizes, it is our interest to encourage them to the utmost, and to prevent their going into the service of other countries. I might, therefore, as a member of the Legislature of that State, do all in my power to procure bounties for them, and indeed for all the sailors belonging to that State; but I should not think of applying to Congress for their assistance; not only because I doubt their right to afford it, but because I should look upon it as in some degree derogatory to the sovereignty and independence of the State. I should look upon such an interference of Congress as a step towards swallowing up the powers of the State Governments, and as consolidating the different States into one Government, which the wise and virtuous in every State always protested against as dangerous to their liberties; the fear of which consolidation prevented many good men from voting for the adoption of the new Government. The framers of the constitution guarded so much against a possibility of such partial preferences as might be given, if Congress had the right to grant them, that, even to encourage learning and useful arts, the granting of patents is the extent of their power. And surely nothing could be less dangerous to the sovereignty or interests of the individual States than the encouragement which might be given to ingenious inventors or promoters of valuable inventions in the arts and sciences. The encouragement which the General Government might give to the fine arts, to commerce, to manufactures, and agriculture, might, if judiciously applied, redound to the honor of Congress, and the splendor, magnificence, and real advantage of the United States; but the wise framers of our constitution saw that, if Congress had the power of exerting what has been called a royal munificence for these purposes, Congress might, like many royal benefactors, misplace their munificence; might elevate sycophants, and be inattentive to men unfriendly to the views of Government; might reward the ingenuity of the citizens of one State, and neglect a much greater genius of another. A citizen of a powerful State, it might be said, was attended to, whilst that of one of less weight in the Federal scale was totally neglected. It is not sufficient to remove these objections, to say, as some gentlemen have said, that Congress is incapable of partiality or absurdities, and that they are as far from committing them as my colleagues or myself. I tell them the constitution was formed on a supposition of human frailty, and to restrain abuses of mistaken powers. The constitution has been said by some one to be, like answers of the oracles of old, capable of various and opposite constructions; that it has been ingeniously contrived, like some of them, to suit two events--a republican or a monarchical issue. I will not pretend to say that this is not, in some instances, too just an observation; nor will I undertake to deny that it was not the intention of some of the Convention that such ambiguities might be in their constitution, to correspond with the critical and ambiguous state of the American mind respecting government; but I will boldly affirm, that, whatever the theories of that day might lead some to think respecting the application of monarchical principles to the Government of the United States, no one can, at this day, pretend that they are applicable to their circumstances, their dispositions, or interests, or even are agreeable to the wishes of the people. Even before the adoption of the constitution, when the rights of men had not been so thoroughly investigated as they since have been, it must be remembered that whole States, and large and respectable minorities in other States complained of and objected to the aristocratical and monarchical features of the new Government. In vain did the friends of the new Government--friends of order, of union, or of liberty--contend that the powers granted by the constitution which appeared so alarming were such as would never be exerted but when all good men would acknowledge the necessity of exercising them, and that, indeed, they would be explained or restrained by some future amendments. The sagacious and eloquent HENRY shook his head at such promises, sighed and submitted to the will of the majority--a small one indeed--but foretold, from his knowledge of the human heart, what would be done and said in justification of every measure which might extend the power of Congress. Is it politic and wise, then, Mr. Chairman, to exert the power contended for, even if it be authorized by the constitution? May not the interferences of Congress in the business of regulating the trade of the Eastern States, excite, if not envy on account of a supposed partiality, a jealousy lest Congress undertake to intermeddle in the commercial regulations of other States? May not Congress with equal propriety, undertake to regulate the tobacco, the rice, and indigo trade, as well as that of the fisheries? If they intermeddle in the business of sailors, why not in that of manufacturers and farmers? Where, I may ask with my colleague, may they not go on in their zeal, and, I may add, in their laudable pursuit, of promoting the general welfare--and how totally may they be mistaken? If jealousy of rival States, instead of mutual satisfaction and pleasure--if distrust and suspicion of Congress, instead of confidence in their measures, be the consequence--how will the Union be promoted, or the General Government secured? However virtuously disposed the present members may be, (and I am ready to applaud their honest intentions,) let them consider, sir, that they had better suppress their patriotic emotions, than give a pretext for their successors to abuse the powers which they now wish to exert for the public good. I know they will quote the opinion of as wise and virtuous a citizen as is in the United States. I know his patriotism, and know well his true Republican principles; but, sir, with the freedom of a fellow-citizen, I take the liberty of saying, that his honest zeal, like that of the friends of the bill, has led him into a mistake.[43] That able statesman and virtuous citizen, like the eloquent advocates of the bill, has considered the acts now quoted as a full sanction for the one before the committee. But I am of opinion, that those acts had better be repealed than give a sanction to the enacting of a law which goes to the establishing of bounties, or drawbacks, or by whatever other name they are called, which may be used to the partial encouragement of any branch of trade or employment whatsoever. I shall therefore vote against the bill before us, and, to get rid of it shall vote for striking out of it the first section, according to the motion now before the committee. As a member of this House, I shall think it my duty to protect the fisheries, and every other branch of our commerce, the fisherman as well as every other citizen, as far as may be within my ability; but I am not permitted, as a member of Congress, I humbly conceive, to select the fisheries and fishermen as objects of more consequence than any other branches of trade, or persons employed in them, lest Congress should not only show a mistaken attachment, or, even if judiciously placed, excite jealousies and discontents between the States, and distrust, destructive of their weight and influence. My constant wish has been to see Congress confined to such acts as would form a more perfect union, promote the general welfare, ensure domestic tranquillity, and engage the confidence of our fellow-citizens. My wish is, that the members of Congress would leave their respective States in the full enjoyment of every right and privilege they held before their adoption of the new constitution, which can be exercised without prejudice to the General Government. Let the Legislatures of the different States encourage, as far as in their power, the commerce, agriculture, or manufactures of their respective States? and let Congress, as far as can be consistent with the most steady impartiality, patronize their patriotic exertions, by wise regulations of their commerce with foreign nations, such as may open as full an intercourse with those nations as the States may desire. The emulation of the sister States in commerce, manufactures, or agriculture, would lead to the early establishment of that branch of either to which each State might be best adapted. This rivalship could produce no jealousy, no general national discontent in the States, no localities in Congress. Virginia would not attempt to rival Massachusetts in her fisheries or carrying business, nor will South Carolina and Georgia rival the manufactories of New Jersey and Pennsylvania. Each State may rejoice to see its sister States enjoying the advantages with which Heaven has blessed them; and Congress, if confined to subjects which admit not of local considerations, may debate with temper and decide with unbiased judgment. I confess I have wished that Congress possessed the power that the friends of the bill tell us we do possess, and tell us we have exerted; but, on examining the constitution with a view to my wish, I found reason to think, not only that Congress has not that power, but that it ought not to possess it, unless the constitution was intended to establish a consolidated Government on the ruin of the State Legislatures; but this, I conceive, cannot be the case, because the constitution guarantees to the States their respective Republican Governments. The general powers of Congress, no doubt, ought to be (as they are) adequate to the purpose of forming a more _perfect union_ than subsisted under the Confederation, to establish justice, &c.; but, as they are bound to guarantee to the States their respective Republican forms of Government, I cannot conceive how any of these powers can be employed, consistently with the ends for which they were given, in diminishing the power and sovereignty of the State Legislatures. How Congress can interfere in the regulations respecting the merchants and their sailors at Marblehead with more propriety than with those at Philadelphia, Norfolk, or Charleston, I cannot conceive; nor how this interference could take place without alarming those States, I know not. Viewing the bill before us in this light, Mr. Chairman, I shall vote against it, and, as I said before, to get rid of it, shall vote to strike out the first section, according to the motion now before the committee. The question on striking out the first section was taken, and negatived--32 to 26. WEDNESDAY, February 8. A message was received from the President of the United States, together with a statement of certain articles of expense, which have occurred in the Department of Foreign Affairs, and for which no provision is made by law. [The expense alluded to was incurred for the relief of a number of American sailors, impressed in England to serve on board the British navy.] The message and accompanying papers were referred to a select committee, to examine and report. The SPEAKER laid before the House a letter from the Secretary of War, accompanying certain communications with the Executive of Virginia relative to the existing temporary defensive protection of the exposed frontiers of that State, pursuant to the orders of the President of the United States; which were read, and ordered to lie on the table. Mr. WHITE, from the committee appointed, presented a bill providing for the settlement of the claims of persons under particular circumstances barred by the limitations heretofore established; which was read twice and committed. Mr. BENSON, from the committee to whom was referred the report of the Secretary of the Treasury on the petition of Comfort Sands, and others, made a report; which was read, and ordered to lie on the table. _The Cod Fisheries._ The House again resolved itself into a Committee of the whole House, on the bill sent from the Senate, entitled "An act for the encouragement of the Bank and other Cod Fisheries, and for the regulation and government of the fishermen employed therein." On a motion to strike out the words "bounty now allowed," and insert _allowance now made_, &c.-- Mr. GILES observed, that he conceived the vote of yesterday against striking out the first section, was a decision in favor of the policy of granting Governmental aid to the fisheries; the inquiry of to-day will be on what terms this aid shall be granted? He felt but little regret at the decision of yesterday, because he had himself previously contemplated some reasons, not unimportant, to justify that decision, and others had been suggested by several gentlemen in the course of the debate. The principles of this policy, he thought, however, might be combated by reasons of at least equal, and as far as he was able to judge, of paramount importance; but as he admitted considerable weight in the reasons on each side of the question, he was not particularly tenacious of the preference which his own opinion suggested. When he first mentioned his doubts respecting the principle of the bill, it was with diffidence, and those doubts in some measure arose from an idea that the bill contained a direct bounty upon occupation; upon a more minute examination, he thought the term bounty unnecessarily introduced into the bill, and that the object of it could be answered without the use of terms, which might hereafter be deemed to contain a decision upon the general principle of the constitutional right to grant bounties; it was to avoid any thing which might wear the appearance of such a decision, that induced him to make the present motion. He proceeded to remark, that as great a difference of opinion often existed respecting the precise meaning of the terms used, as the consequences which flow from them after attaining such precision of meaning; and it is of importance to the present discussion that an accurate definition of the terms used in the bill, and those proposed to be used, should be had. The avowed object of the bill is not to increase, but to transmute the sum, or a portion thereof, now allowed to the fisheries in lieu of the drawback upon salt, from the merchant who is now supposed to receive the sole benefit, to the fishermen really employed in the fishing vessels. This is a mere chimerical project, but if it be admitted that this is the object to be effected by the bill, the term bounty is improperly applied. A gentleman from Massachusetts, (Mr. AMES,) who rests the defence of this bill almost solely upon this position, that those who receive the benefit intended by it, are of right entitled to such benefit in consideration of a previous advancement in value, and that this bill contains a mere permission to them to retain their own, has at the same time declared, that he thought the term bounty the most proper and technical, to convey this idea. In this, the gentleman appears to have deviated from his usual accuracy. A bounty is the granting a benefit without a correspondent return in value; a drawback is the retaking of something in consideration of a previous advancement; this is always founded upon a consideration previously received--that is a grant of favor _ex mero motu_. But the great characteristic distinction between bounties and drawbacks as they essentially relate to the administration of this Government consists in the governmental objects to which they may severally be applied: drawbacks are necessarily confined to commercial regulations; bounties may be extended to every possible object of Government, and may pervade the whole minutiæ of police. They may not only be extended to commerce, but to _learning_, _agriculture_, _manufactures_, and even the _sacredness_ of religion will be found too feeble to furnish complete protection from their influence. The people of the United States have always been scrupulously tenacious of a constitutional security for the most free and equal exercises of this right, but through the medium of bounties, even this right may be invaded, and the only security against such invasion must be _governmental discretion_. The same characteristic distinction will attend that _species_ of bounty which may incidentally result from commercial regulations; and direct bounties upon occupation founded upon the broad basis of discretionary right. The specification in the constitution of the right to regulate commerce, may possibly in some cases give rise to this indirect species of bounty, not from any right in the constitution to grant bounties, but as the necessary result from the specified right to make commercial regulations; and this specification can be the only foundation of justification to this indirect species of bounty; but there is no specification in the constitution of a right to regulate _learning_, or _agriculture_, _manufactures_, or _religion_, and so far as the sense of the constitution can be collected, it rather forbids than authorizes the exercise of that right. Arguments used to deduce any given authority from the term _general welfare_, abstractedly from the specification of some particular authority, are dangerous in the extreme to rights constitutionally reserved, and ought ever to be viewed with great caution and suspicion. They serve directly to show that this Government is not only consolidated in all its parts, but that it is a consolidated Government of unlimited discretion; that it contains no constitutional limitation or restriction. If any given authority be inferred from the term _general welfare_ in the abstract, any other authority is equally deducible from it, because the term is applicable to every possible object of Government, and differs only in degree, as to the several Governmental objects. He could not see the force of the novel and curious distinction taken by a gentleman from Connecticut (Mr. HILLHOUSE) between _general welfare_ and _particular welfare_; for every particular welfare, however minute, may be in a degree for the general welfare, and if the decision respecting the existence of this distinction, have no other limitation than Congressional discretion, it is equally destructive of all constitutional restraint. Gentlemen who have advocated this principle of construction, appear startled at some consequences suggested to result from it, and have denied that they have made the admission of such consequences. This is true, nor have those in reply so asserted, but they have taken up the principles of construction furnished by its advocates, and made the application of it to the consequences which they themselves infer; and if the principle be admitted, it is undeniable that the conclusions drawn from it will necessarily follow in their utmost latitude. A gentleman from South Carolina (Mr. BARNWELL) confidently spoke of the inherent rights of this Government; this is a new source of authority, and totally inapplicable to this Government. If there be inherent rights in governments at all, they must belong to governments growing out of a state of society, and not to a government deriving all its authorities by charter from previously existing governments, or the people of those governments. In such a government, the exercise of every authority not contained in the instrument, or deducible from it by a fair and candid construction, is an unjustifiable assumption and usurpation. He did not mean to analyze this subject further at this time, and had been led into these general remarks, because the impatience of the committee to have the question upon striking out the section had caused him to refrain from delivering these sentiments at that time. He would remark further, that bounties in all countries and at all times, have been the effect of favoritism; they have only served to divert the current of industry from its natural channel, into one less advantageous or productive; and in fact, they are nothing more than governmental _thefts_ committed upon the rights of one part of the community, and an _unmerited_ governmental _munificence_ to the other. In this country, and under this Government, they present an aspect peculiarly _dreadful_ and _deformed_. To contemplate the subjects upon which bounties are to operate in the United States, the nature of the Government to dispense them, the State preferences which now do and will for ever, more or less, continue to exist, the impossibility of an equal operation of bounties throughout the United States, upon any subject whatever, should be considered; and one of these two effects will necessarily follow the exercise of them; either the very existence of the Government will be destroyed, or its administration must be radically changed, it must be converted into the most complex system of tyranny and favoritism. He observed, that it is not unfrequent at this time to hear of an Eastern and Southern interest, and he had for some time silently and indignantly seen, or thought he saw, attempts by this means to influence the deliberations of this House upon almost every important question. So far as he was the insulted object of these attempts, he felt that contempt for their authors, which appeared to him to be the correspondent tribute to the impurity of their designs; yet he thought that this had been the most formidable and effectual _ministerial machine_ which had been yet used in the administration of Government. But one great mischief he apprehended from establishing the principle of the unrestrained right to grant bounties, will be, that it will make the difference of interest between Eastern and Southern, so far as they differ in their respective States of manufacture and agriculture, real, which is now only ideal. It will make that party real, which is now artificial. The jealousies and suspicions arising from _party_, will then have a substantial foundation, which now have no foundation in fact, but are ingeniously stimulated by a few, for the purpose of effecting particular objects; as long as the Government shall be administered liberally and impartially, as long as the principle of reciprocal demand and supply between East and South shall remain inviolate, so long there can exist no essential distinct interest between them; but the instant bounties or governmental preferences are granted to occupation, that instant is created a separate and distinct interest, not wholly between East and South, but between the manufacturer and the cultivator of the soil. There will still exist a community of agricultural interests throughout the United States, and he hoped the time was not far distant, when a common sympathy will be felt by the whole of that class of the community. For these reasons, he hoped the motion would prevail. The bill having been gone through with, and amended, the committee rose and reported it with amendments which the House immediately took into consideration and adopted. The bill was then further amended and the House adjourned. THURSDAY, February 9. _The Cod Fisheries._ The bill sent from the Senate, entitled "An act for the encouragement of the Bank and other Cod Fisheries, and for the regulation and government of the fishermen employed therein," together with the amendments thereto, was read the third time; and the question being put that the same do pass, it was resolved in the affirmative--yeas 38, nays 21, as follows: YEAS.--Messrs. Fisher Ames, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Abraham Clark, Jonathan Dayton, Thomas Fitzsimons, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, James Gordon, Andrew Gregg, Samuel Griffin, Thomas Hartley, James Hillhouse, Daniel Huger, John W. Kittera, John Laurance, Amasa Learned, Richard Bland Lee, Samuel Livermore, James Madison, Frederick Augustus Muhlenberg Nathaniel Niles, Cornelius C. Schoonmaker, Jeremiah Smith, Israel Smith, William Smith, Samuel Sterrett, Jonathan Sturges, Peter Sylvester, George Thatcher, Thomas Tredwell, John Vining, Jeremiah Wadsworth, and Artemas Ward. NAYS.--Messrs. John Baptist Ashe, Abraham Baldwin, John Brown, William B. Giles, William Barry Grove, Daniel Heister, Philip Key, Nathaniel Macon, John Francis Mercer, Andrew Moore, William Vans Murray, John Page, Josiah Parker, Joshua Seney, John Steele, Thomas Sumter, Thomas Tudor Tucker, Abraham Venable, Alexander White, Hugh Williamson, and Francis Willis. _Resolved_, That the title of the said bill be, "An act concerning certain fisheries of the United States, and for the regulation and government of the fishermen employed therein." Mr. LAURANCE presented a petition from the tanners and curriers of the city of New York, praying relief from the hardships they labor under, in consequence of the exportation of tanners' bark. Referred to a select committee. WEDNESDAY, February 22. _Indemnity to Gen. Greene's Estate._ On a motion made and seconded, that the House do come to the following resolution: "Whereas the late Major General Nathaniel Greene, on the eighth day of April, one thousand seven hundred and eighty-three, the more effectually to procure rations, and supplies for the Southern Army of the United States, became bound as surety for John Banks & Company to Newcomen & Collet, merchants in Charleston, for the payment of eight thousand seven hundred and forty-three pounds fifteen shillings and sixpence, sterling money, being the condition of said bond: "And whereas, on the first day of May, one thousand seven hundred and eighty-six, the balance of principal and interest of said bond, being then eight thousand six hundred and eighty-eight pounds six shillings sterling, was paid by the said General Greene: Therefore, "_Resolved_, That the United States shall indemnify the estate of the said General Greene for the said sum last mentioned, and the interest thereof: _Provided_, The Executors of the said General Greene shall account for a sum, being about two thousand pounds, be the same more or less, received of John Ferrie, one of the partners of the said Banks & Company, to be in part of the indemnification aforesaid; and also shall make over, for the use of the United States, all mortgages, bonds, covenants, or other counter-securities whatsoever, now due, which were obtained by the said General Greene in his lifetime, from the said Banks & Company on account of his being surety for them as aforesaid, to be sued for in the name of the said executors, for the use of the United States:" _Ordered_, That the said resolution be committed to a Committee of the whole House immediately. The House accordingly resolved itself into a Committee of the whole House on the said resolution; and, after some time spent therein, the committee rose, reported progress, and obtained leave to sit again. SATURDAY, March 10. _Courtesies to France._ On a motion made and seconded, that the House do come to the following resolution: "_Resolved_, That this House hath received, with sentiments of high satisfaction, the notification of the King of the French, of his acceptance of the constitution presented to him in the name of the Nation; and that the President of the United States be requested, in his answer to the said notification, to express the sincere participation of the House in the interests of the French Nation, on this great and important event; and their wish that the wisdom and magnanimity displayed in the formation and acceptance of the constitution, may be rewarded by the most perfect attainment of its object, the permanent happiness of so great a people." It was moved and seconded that the said motion be committed. And on the question for commitment, it passed in the negative--yeas 17, nays 35. And then debate arising on the said motion, a division thereof was called for. Whereupon, The question being put, that the House do agree to the first part of the said motion, in the words following: "_Resolved_, That this House has received, with sentiments of high satisfaction, the notification of the King of the French, of his acceptance of the constitution presented to him in the name of the Nation: And that the President of the United States be requested, in his answer to the said notification, to express the sincere participation of the House in the interests of the French Nation, on this great and important event:" It was resolved in the affirmative--yeas 50, nays 2, as follows: YEAS.--Fisher Ames, John Baptist Ashe, Abraham Baldwin, Benjamin Bourne, Abraham Clark, William Findlay, Thomas Fitzsimons, William B. Giles, Nicholas Gilman, Benjamin Goodhue, James Gordon, Andrew Gregg, Thomas Hartley, Daniel Heister, James Hillhouse, Israel Jacobs, Philip Key, Aaron Kitchell, John W. Kittera, John Laurance, Amasa Learned, Richard Bland Lee, Samuel Livermore, Nathaniel Macon, James Madison, John Francis Mercer, William Vans Murray, Nathaniel Niles, John Page, Cornelius C. Schoonmaker, Theodore Sedgwick, Joshua Seney, Jeremiah Smith, Israel Smith, William Smith, John Steele, Samuel Sterrett, Jonathan Sturges, Thomas Sumter, George Thatcher, Thomas Tredwell, Thomas Tudor Tucker, Abraham Venable, John Vining, Jeremiah Wadsworth, Artemas Ward, Anthony Wayne, Alexander White, Hugh Williamson, and Francis Willis. NAYS.--Robert Barnwell and Egbert Benson. On the question, that the House do agree to the second part of the said motion, in the words following: "And their wish that the wisdom and magnanimity displayed in the formation and acceptance of the constitution, may be rewarded by the most perfect attainment of its object, the permanent happiness of so great a people:" It was resolved in the affirmative--yeas 35, nays 16. _Ordered_, That Mr. TUCKER, Mr. MADISON, Mr. MERCER, Mr. VINING, and Mr. PAGE, be appointed a committee to wait on the President of the United States, with the said resolution. SATURDAY, March 24. _Establishment of a Mint._ The House resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled, "An act establishing a Mint, and regulating the coins of the United States." The following amendment being under consideration, viz: "In the tenth section, strike out the words, '_Or representation of the head of the President of the United States for the time being, with an inscription, which shall express the initial or first letter of his Christian or first name, and his surname at length, the succession of the Presidency numerically_,' and, in lieu thereof, insert, 'Emblematic of Liberty,' with an inscription of the word LIBERTY." Mr. PAGE, in support of this motion said, that it had been a practice in monarchies to exhibit the figures or heads of their kings upon their coins, either to hand down, in the ignorant ages in which this practice was introduced, a kind of chronological account of their kings, or to show to whom the coin belonged. We have all read, that the Jews paid tribute to the Romans, by means of a coin on which was the head of their Cæsar. Now as we have no occasion for this aid to history, nor any pretence to call the money of the United States the money of our Presidents, there can be no sort of necessity for adopting the idea of the Senate. I second the motion, therefore, for the amendment proposed; and the more readily because I am certain it will be more agreeable to the citizens of the United States, to see the head of Liberty on their coin, than the heads of Presidents. However well pleased they might be with the head of the great man now their President, they may have no great reason to be pleased with some of his successors; as to him, they have his busts, his pictures every where; historians are daily celebrating his fame, and Congress have voted him a monument. A further compliment they need not pay him, especially when it may be said, that no Republic has paid such a compliment to its Chief Magistrate; and when indeed it would be viewed by the world as a stamp of royalty on our coins: would wound the feelings of many friends, and gratify our enemies. Mr. WILLIAMSON seconded the motion also, and affirmed that the Romans did not put the heads of their Consuls on their money; that Julius Cæsar wished to have his on the Roman coin, but only ventured to cause the figure of an elephant to be impressed thereon; that by a pun on the Carthaginian name of that animal, which sounded like the name of Cæsar, he might be said to be on the coin. He thought the amendment consistent with Republican principles, and therefore approved of it. Mr. LIVERMORE ridiculed, with an uncommon degree of humor, the idea that it could be of any consequence to the United States whether the head of Liberty were on their coins or not; the President was a very good emblem of Liberty; but what an emblematical figure might be, he could not tell. A ghost had been said to be in the shape of the sound of a drum, and so might Liberty for aught he knew; but how the President's head being on our coins could affect the liberty of the people, was incomprehensible to him. He hoped, therefore, that the amendment would be rejected. Mr. SMITH, of South Carolina, agreed with Mr. LIVERMORE in opinion; adding, that the President representing the people of the United States, might with great propriety represent them on their coins. He denied that Republics did not place the images of their Chief Magistrates on their coins; and said, he was surprised that a member who so much admired the French and their new constitution, should be so averse to a practice they have established; the head of their King is by their constitution put upon their money. Besides, it was strange that for a circumstance so trivial we should lose time in debating, and risk the loss of an important bill. The said amendment was again read, and a division of the question thereon called for: Whereupon, The question being taken, that the House do agree to the first part of the said amendment, for striking out the words "or representation of the head of the President of the United States for the time being, with an inscription, which shall express the initial or first letter of his Christian or first name, and his surname at length, the succession of the Presidency numerically:"--it was resolved in the affirmative--yeas 26, nays 22. And then the question being taken that the House do agree to the second part of the said amendment, for inserting, in lieu of the words stricken out, the words, "Emblematic of liberty, with an inscription of the word Liberty:"--it was resolved in the affirmative--yeas 42, nays 6. MONDAY, March 26. _Establishment of a Mint._ A message from the Senate informed the House that the Senate disagree to the amendment proposed by this House to the bill entitled "An act establishing a Mint, and regulating the coins of the United States;" and agree to the amendment proposed by this House to the bill entitled "An act supplemental to the act for making further and more effectual provision for the protection of the frontiers of the United States." It was moved that the House should recede from their amendment to the bill entitled "An act establishing a Mint, and regulating the coins of the United States." Mr. LIVERMORE supported the motion. He said, he did not conceive it possible that and friend to the President of the United States, the Chief Magistrate, that great and good man, would have refused to pay every tribute of respect which was justly due to him. We have now a favorable opportunity of complimenting him, without any shadow of flattery, and without any expense. But, instead of this, what is proposed? An emblematical figure of Liberty. But what is this liberty which some appear to be so fond of? He had no idea of such liberty as appears to possess the minds of some gentlemen. It is little better than the liberty of savages--a relinquishment of all law that contradicts or thwarts their passions or desires. His idea of liberty was that which arose from law and justice, which secured every man in his proper and social rights. Some gentlemen may think a bear broke loose from his chain a fit emblem of liberty; others may devise a different emblem; but he could not conceive that any of them would be applicable to the situation of the United States, which justly boasted of being always free. If any idea of an emblem is necessary, he thought it might be applied to the head of the President of the United States. The present occasion affords the best opportunity of doing honor to the man we love; instead of which, we offer him an affront. He could not reconcile this conduct to propriety or consistency; for, while it is proposed to raise a monument to the memory of the President, which will cost fifty thousand guineas, a proposition to honor him in a more effectual manner, and in a way which will be satisfactory to the people, without any expense, and with perfect security to their liberties, is objected to. He hoped the House would recede. Mr. MERCER replied to Mr. LIVERMORE with some degree of asperity. He observed that there was a rule in the British House of Commons that the name of the King should never be mentioned in any debate. He thought some such rule might be introduced with advantage into this House. In the course of his remarks, to show that the circumstance of having the President's head stamped on the coin could not be justly considered as doing him an honor, he said, that persons of no better character than a Nero, a Caligula, or a Heliogabalus, may enjoy it as well as a Trajan, &c. Mr. SENEY animadverted with severity on the remarks offered by Mr. LIVERMORE, and on the conduct of the Senate; particularly in returning the bill with a negative to the amendment of the House, within a period that left them no time to deliberate on the reasons which might have influenced the House. Mr. GILES opposed the motion for receding. He adverted to the ideas which are connected with the subject in European countries. The President's head will not designate the Government. There is to be but one head; but does not our Government consist of three parts? Is there any other head proposed to be on the coin but the President's? He said this circumstance was of a piece with the first act of the Senate. It had a near affinity to titles, that darling child of the Senate, which has been put to nurse, with an intention that it shall be announced at some future period in due form. Mr. BENSON said, he supposed he should be extremely disorderly were he to mention the motives which influenced the Senate in their discussions. He knew not what they were, nor was it of importance that he should. He then observed, that plain pieces of metal will not answer for money; some impression is necessary to guard against counterfeits. The Senate have determined what the device shall be; but the House, by their amendment, have left the matter entirely to the judgment of the artist, who may form such an emblem as suits his fancy. Mr. B. ridiculed the idea of the people's being enslaved by their Presidents, and much less by his image on their coin. Mr. PAGE replied that he was sorry to find that some gentlemen endeavored to ridicule Republican cautions. He thought it both indelicate and inconsistent with their situations, as well as highly impolitic. He confessed that, as long as the people were sensible of the blessings of liberty, and had their eyes open to watch encroachments, they would not be enslaved; but if they should ever shut them, or become inattentive to their interests and the true principles of a free government, they, like other nations, might lose their liberties; that it was the duty of the members of that House to keep the eyes of their constituents open, and to watch over their liberties. It was therefore unbecoming a member to treat with levity and to ridicule any sentiment which had that tendency. For his part, he thought it the peculiar duty of the Representative of a free people to put them upon their guard against any thing which could possibly endanger their liberties. That with this view he warned his constituents of the danger, not merely of imitating the flattery and almost idolatrous practice of Monarchies with respect to the honor paid to their Kings, by impressing their images and names on their coins, but he wished to add as few incentives as possible to competitors for the President's place. He warned his country against the cabals, the corruption, and animosities, which might be excited by the intrigues of ambitious men, animated with the hope of handing their names down to the latest ages on the medals of their country. But this indiscriminate honor is unworthy of the President's acceptance. A Nero, a Caligula, a Heliogabalus, it has been observed, (by Mr. MERCER,) may enjoy it as well as a Trajan. To apply it to the present Chief Magistrate, alone, would be less exceptionable. But this would be highly improper; for, if he should pass an act for this purpose, it might blast his reputation. I am of opinion that the Senate knew his delicacy would not permit him to pass such a one. They have therefore extended the compliment to all his successors. We are under obligations to the great man now our President; but a lover of liberty and friend to the rights of man would be cautious how he showed his sense of that obligation. As a friend to the President, I am unwilling to offer him a compliment which, if accepted, might damn his reputation. Were I in his place, I would cut off my hand rather than it should sign the act as it now stands. Were I his greatest enemy, I should wish him to pass it as it was passed by the Senate. Sir, I am as much his friend as the member from New Hampshire, and have shown, at proper times and places, that I was so. I am too sensible of the honor our President has acquired to suppose that an unbecoming compliment can in any degree contribute to its increase. I hope, therefore, the amendment which the House has made will not be receded from. The question being now put, that this House doth recede from the said amendment, it passed in the negative--yeas 24, nays 32, as follows: YEAS.--Fisher Ames, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Thomas Fitzsimons, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, Thomas Hartley, James Hillhouse, Daniel Huger, Israel Jacobs, John W. Kittera, Amasa Learned, Samuel Livermore, Theodore Sedgwick, William Smith, Jonathan Sturges, Peter Sylvester, George Thatcher, Jeremiah Wadsworth, and Artemas Ward. NAYS.--John Baptist Ashe, Abraham Baldwin, John Brown, Abraham Clark, William B. Giles, James Gordon, Andrew Gregg, Samuel Griffin, William Barry Grove, Daniel Heister, Philip Key, Aaron Kitchell, Richard Bland Lee, Nathaniel Macon, James Madison, John Francis Mercer, Andrew Moore, William Vans Murray, Nathaniel Niles, John Page, Josiah Parker, Joshua Seney, Jeremiah Smith, Israel Smith, John Steele, Thomas Sumter, Thomas Tredwell, Thomas Tudor Tucker, Abraham Venable, John Vining, Alexander White, and Hugh Williamson. _Resolved_, That this House doth adhere to the said amendment. _Ordered_, That the Clerk of this House do acquaint the Senate therewith. TUESDAY, March 27. A message from the Senate informed the House that the Senate recede from their disagreement to the amendment adhered to by this House to the bill entitled "An act establishing a Mint, and regulating the coins of the United States." WEDNESDAY, April 4. _General Nathaniel Greene._ The House proceeded to consider the resolution reported from the Committee of the whole House on the 24th of February last, to indemnify the estate of the late General Nathaniel Greene for a certain suretyship entered into by the said Nathaniel Greene, in his lifetime, on the public behalf. Whereupon, the said resolution being read at the Clerk's table, as follows: "Whereas, the late Major General Nathaniel Greene, on the 8th day of April, 1783, the more effectually to procure _rations_ and supplies for the Southern Army of the United States, became bound as surety for John Banks & Co., to Newcomen & Collet, merchants in Charleston, for the payment of £8,743 15_s._ 6_d._, sterling money, being the condition of the said bond: "And whereas, on the 1st of May, 1786, the balance of principal and interest of said bond, being then £8,688 6_s._ sterling, was paid by the said General Greene. Therefore, "_Resolved_, That the United States shall indemnify the estate of the said General Greene for the said sum last mentioned, and the interest thereof, or for such sum as, upon due investigation by the officers of the Treasury of the transactions between John Banks & Co., with Messrs. Newcomen & Collet, in which General Greene was security for said Banks & Co., it shall appear that neither General Greene nor his executors shall have received any payment or compensation for: _Provided_, The executors of the said General Greene shall account for a sum being about £2,000, be the same more or less, recovered by John Ferrie, one of the partners of the said John Banks & Co., to be in part of the indemnification aforesaid; and also shall make over for the use of the United States, all mortgages, bonds, covenants, or other counter-securities whatsoever, now due, which were obtained by the said General Greene, in his lifetime, from the said Banks & Co., on account of his being surety for them as aforesaid, to be sued for in the name of the said executors, for the use of the United States." The previous question thereon was called for by five members, to wit: "Shall the main question, to agree to the said resolution, be now put?" And on the previous question, "Shall the main question be now put?" it was resolved in the affirmative. And then the main question, "That the House do agree to the said resolution?" being put, it was resolved in the affirmative--yeas 29, nays 26, as follows: YEAS.--Fisher Ames, Abraham Baldwin, Robert Barnwell, Egbert Benson, Shearjashub Bourne, Benjamin Bourne, William Findlay, Thomas Fitzsimons, Elbridge Gerry, Andrew Gregg, Thomas Hartley, Daniel Heister, Philip Key, John W. Kittera, John Laurance, Amasa Learned, Richard Bland Lee, Samuel Livermore, Frederick Augustus Muhlenberg, William Vans Murray, John Page, Theodore Sedgwick, Upton Sheridine, William Smith, Samuel Sterrett, George Thatcher, John Vining, Jeremiah Wadsworth, and Francis Willis. NAYS.--John Baptist Ashe, Elias Boudinot, John Brown, Abraham Clark, William B. Giles, Nicholas Gilman, Benjamin Goodhue, James Gordon, William Barry Grove, James Hillhouse, Israel Jacobs, Aaron Kitchell, Nathaniel Macon, Andrew Moore, Nathaniel Niles, Joshua Seney, Jeremiah Smith, Israel Smith, John Steele, Jonathan Sturges, Thomas Sumter, Peter Sylvester, Thomas Tredwell, Artemas Ward, Alexander White, and Hugh Williamson. _Ordered_, That a bill or bills be brought in pursuant to the said resolution, and that Mr. LIVERMORE, Mr. PAGE, and Mr. BARNWELL, do prepare and bring in the same. THURSDAY, April 5. _Apportionment Bill._ A message was received from the President of the United States returning to the House the bill passed by the two Houses entitled "An act for an Apportionment of Representatives among the several States according to the first Enumeration," and presented to the President for his approbation on Monday, the 26th of March; to which bill the President having made objections, the said objections were read, and ordered to be entered at large on the Journal, as follows: "UNITED STATES, _April 5, 1792_." _Gentlemen of the House of Representatives:_ "I have maturely considered the act passed by the two Houses entitled 'An act for an Apportionment of Representatives among the several States, according to the first Enumeration;' and I return it to your House, wherein it originated, with the following objections: "First. The constitution has prescribed that Representatives shall be apportioned among the several States according to their respective numbers; and there is no one proportion or divisor which, applied to the respective numbers of the States, will yield the number and allotment of Representatives proposed by the bill. "Second. The constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the States; and the bill has allotted to eight of the States more than one for every thirty thousand. "G. WASHINGTON." _Resolved_, That to-morrow be assigned for the reconsideration of the said bill, in the mode prescribed by the Constitution of the United States. FRIDAY, April 6. _Apportionment Bill._ The House proceeded to reconsider the bill passed by the two Houses entitled "An act for an Apportionment of Representatives among the several States, according to the first Enumeration," which was presented for approbation on Monday, the 26th of March, and returned by the President yesterday, with objections. The said bill was read, and is as follows: "An act for an Appointment of Representatives among the several States, according to the first Enumeration. "_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That, from and after the 3d day of March, in the year one thousand seven hundred and ninety-three, the House of Representatives shall be composed of one hundred and twenty members, elected within the several States, according to the following apportionment, that is to say: Within the State of New Hampshire, five; within the State of Massachusetts, sixteen; within the State of Vermont, three; within the State of Rhode Island, two; within the State of Connecticut, eight; within the State of New York, eleven: within the State of New Jersey, six; within the State of Pennsylvania, fourteen; within the State of Delaware, two; within the State of Maryland, nine; within the State of Virginia, twenty-one; within the State of Kentucky, two; within the State of North Carolina, twelve; within the State of South Carolina, seven; and within the State of Georgia, two. "JONATHAN TRUMBULL, "_Speaker of the House of Representatives._ "JOHN ADAMS, "_Vice President U. S. and President of Senate._" The President's objections were also read; and, after debate on the subject-matter of the said bill, the question "That the House, on reconsideration, do agree to pass the bill," was determined in the mode prescribed by the Constitution of the United States, and passed in the negative--yeas 23, nays 33, as follows: YEAS.--Fisher Ames, Egbert Benson, Shearjashub Bourne, Benjamin Bourne, Abraham Clark, Thomas Fitzsimons, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, James Gordon, Thomas Hartley, Israel Jacobs, Aaron Kitchell, John W. Kittera, John Laurance, Amasa Learned, Samuel Livermore, Nathaniel Niles, Cornelius C. Schoonmaker, Theodore Sedgwick, Jeremiah Smith, Israel Smith, John Steele, George Thatcher, Thomas Tredwell, John Vining, Jeremiah Wadsworth, and Artemas Ward. NAYS.--John Baptist Ashe, Abraham Baldwin, Robert Barnwell, John Brown, William Findlay, William B. Giles, Andrew Gregg, Samuel Griffin, Wm. Barry Grove, Daniel Heister, James Hillhouse, Daniel Huger, Philip Key, Richard Bland Lee, Nathaniel Macon, James Madison, John Francis Mercer, Andrew Moore, Frederick Augustus Muhlenberg, William Vans Murray, John Page, Josiah Parker, Joshua Seney, Upton Sheridine, William Smith, Samuel Sterrett, Jonathan Sturges, Thomas Sumter, Thomas Tudor Tucker, Abraham Venable, Alexander White, Hugh Williamson, and Francis Willis. And so the bill was rejected, two-thirds of the House not agreeing to pass the same. MONDAY, April 9. _Apportionment Bill._ The House resolved itself into a Committee of the whole House on the bill for an Apportionment of Representatives among the several States, according to the first Enumeration; at the ratio of one for every ---- thousand persons, in the respective States. Mr. GILES observed, that, although this subject has been heretofore thoroughly discussed, and the minds of gentlemen probably fatigued with the discussion, yet he could not help trespassing upon the patience of the committee, by mentioning some of the principal reasons which would influence his vote against the motion, and in favor of that ratio which will afford the greatest number of Representatives authorized by the constitution. He was induced to do this from an opinion that, in the usual course of things, arguments will have an effect upon the public mind in some measure proportioned to their own solidity, and the purity of the motives which actuate them. That the compound of these qualities form a common standard, by which all arguments would and ought to be measured by the great majority of the people; and he had no objections to submitting his reasons to the application of this common standard; he meant, however, to confine himself to general remarks, and not to fatigue the committee unnecessarily with minute exemplification of them. He proceeded by observing, that the expression in the constitution induced and justified the general expectation among the people of the United States, that one Representative for every thirty thousand persons was secured to them by the constitution; that a definitive certainty in the number of Representatives, as well as the manner of procuring them, is, in its nature, of constitutional and not of legislative provision, and affords a reason against varying the ratio mentioned in the constitution, although that ratio be expressed in terms of latitude; that Congress had confirmed the general expectation in the public mind by the proposed amendments to the constitution, and had at least given a solemn opinion in favor of the ratio of one to thirty thousand, until the number of Representatives should amount to one hundred, after acquiring which number by that rule only, a qualified discretion is admitted; that the opinions of the great bulk of the people of America were in favor of an increased representation, at least as far as the utmost limits prescribed by the constitution; that this circumstance was evidenced by the conventions which adopted the constitution; that it was further evidenced by the several Legislatures which adopted the proposed amendments before alluded to; that it was still further evidenced by the number of Representatives in the respective State Legislatures; that this last circumstance is rendered peculiarly forcible by a comparative view of the objects of legislation chartered to the Government of the United States, and those retained to the State Governments. The objects of legislation chartered to the Government of the United States, are wholly national and important; the objects of legislation retained to the State Governments are comparatively local and subaltern: those peculiarly prompt temptation and invite corruption--these offer no inducements to either. In the Government of the United States, the constituents of the Representative body are complex and diversified; in the State Governments they are comparatively simple and assimilated. That a sympathy with the feelings of the people should characterize this branch of the Government; wisdom is the expected characteristic of the Senate; and despatch of the Executive. To the inequality of representation relatively to States suggested to result from the application of this rule, Mr. G. replied that the inequality complained of is rather ideal than real; that to determine how far this consideration really ought to exist among States, it is right and proper to ascertain the whole comparative Government: and the issue of this inquiry will be, that those States in whose favor the rule is said to operate, possess the least governmental influence in the Senate, proportioned to numbers; and that the casual gain here is no equivalent for the certain loss there. As far, therefore, as the governmental influence of States in relation to numbers is to operate, it will furnish a motive of preferment for the rule he contended for. It has been said (continued Mr. G.) that the representation of the States in the Senate is strictly defined by the constitution, and that therefore the consideration of the relative influence of the States, then, should not be resorted to as an argument in the apportionment of Representatives to this House. But, it should be observed, that the rule contended for, though not so strictly defined, is equally within the pale of the constitution; and the most extended use to be made of this consideration is, to manifest the impropriety of resorting to the pretended inequality among States, as a conclusive argument to vary that ratio of representation for this House which is admitted to be the most proper, upon its intrinsic merits, and when viewed without a reference to that consideration. This particular subject suggests a peculiar equity and propriety, in taking into consideration the comparative governmental influence of the States in the Senate, proportioned to numbers; because, it is in consequence of a representation by States, there, that they gain this unequal influence: and nothing more is contended for by this rule than a representation of the people through the medium of the several States, here. The rule of representation is not the cause of the present inequality, as far as it may appear to exist; it is a mere contingent circumstance, depending upon arbitrary facts and numbers, which cannot be rendered subservient to any general rule. It should also be remarked, that most of the States supposed to be favored by the operation of this rule, have, heretofore, been unequally represented in the extreme; and from the extent and rapid population of these States, it may be concluded, with certainty, that previously to the expiration of the present apportionment, the real inequality of representation in this House, as well as in the Senate, will continue to bear particularly hard upon them. Perfect equality is unattainable; and the proposed ratio is, in the principle, equally subject with any other to all the inconveniences which it is intended to remedy. The inconveniences of the rule he contended for, in their utmost extent, can never be very great, because the same rule is applied in the same manner to the respective States; and the most extended scope for its unequal operation must be confined to the casual result of the fractional numbers within the several States. In reflecting upon this argument of inequality of representation in relation to States, an idea had presented itself to his mind which seemed to him both novel and important; and that is, that a quality exists in the Government, from its peculiar organization which enables a minority of constituents, through the medium of a majority of Representatives, to give law to a majority of constituents, absolutely against the will of their minority of Representatives. This quality of the Government arises from the State representations in the Senate; and it exists not merely in speculation or idea--it has been sensibly felt in practice, and there is a real tendency in the Government to make it still more so. The very bill now under consideration will probably furnish one strong evidence of its efficacy in practice; it would have passed very differently from the present proposition, if it had not met with this unnatural check; and I am concerned, said he, to remark, that almost in every important measure of the Government, the minority of the people of the Union had given law to the majority of the people, against their consent, as far as this can be evidenced through the medium of their Representatives. This, it is to be feared, is a radical evil in the Government, and its magnitude would be in a great measure proportioned to the extension of the objects of legislation by this Government. If the people be the only legal source of governmental authority, and this right of individuals be equal, this is certainly a heterodox principle in the Government. He would not pretend to say, however, that this was a cancer upon the body politic too inveterate and vital to admit of a cure; but he conceived it to be a sore of that sort which it would be unwise to irritate or tamper with: and he conceived, also, the present proposition not to be without its irritating qualities. Mr. G. then proceeded to consider, upon general principles, of increasing the representation in this House to the full extent authorized by the constitution, and particularly with a view to the necessity of establishing, in this branch of the Government, a permanent sympathy with the landed interest. He observed, that all Representative Governments appeared to possess a natural tendency from Republicanism to Monarchy; that, great inequalities in the distribution of wealth among individuals, consequent upon the progress of all governments, appeared to be the cause of their political evolutions; that no competent remedy against this evil had been heretofore discovered, or at least practically applied by any Government; that perhaps this great political light may first shine forth through the medium of the American constitutions, and serve, as some others have previously done, to illumine not only the American, but the European world. The peculiar circumstances of the United States, however, since the late Revolution, and in the infancy of the American Governments, favored extremely this natural principle of the growing inequality in the distribution of wealth amongst individuals. An extensive, unexhausted, fertile country furnished full scope for agriculture, the plenty and cheapness of provisions and rude materials for manufactures, and an unshackled commerce for the merchant; and to these were added the blessings of peace, and laws securing to the individual the exclusive possession of the fruits of his own industry, however abundant. There were intrinsic circumstances; there was a contingent one. A public debt--the price of the Revolution itself and its consequent blessings--had been incurred, and, from the imbecility of the then existing Confederacy, and other causes, was depreciated considerably below its nominal value; but it was then in small masses, and not very unequally spread amongst the individuals throughout the whole United States. The Government of the United States, instead of managing this contingent circumstance with caution, and declaring so in its ministration, seized upon it with its fiscal arrangement, and applied it as the most powerful machine to stimulate this growing inequality in the distribution of wealth--a principle perhaps too much favored by other existing causes. The Government, not satisfied with the debts contracted by the former Confederacy, assumed the payment of a great proportion of the debts contracted by the respective State Governments, and established funds for paying the interest of the whole. This measure produced two effects, not very desirable amongst individuals. It gathered these scattered debts, at a very inferior price, from the hands of the many, and placed them in the hands of the few; and it stimulates the value of them. Thus collected into greater masses, beyond all calculation, by the artificial application of fiscal mechanism, it produced a variety of serious effects with respect to the Government. In opposition to the agricultural or republican, it enlisted a great moneyed interest in the United States, who, having embarked their fortunes with the Government, would go all lengths with its Administration, whether right or wrong, virtuous or vicious, by rendering the debt but partially redeemable, passing perpetual tax laws, and mortgaging their products to the payment of the interest of this perpetually-existing debt. It gave the Executive a qualified control over the best moneyed resources of the United States, not contemplated by the constitution, nor founded in wisdom. It gave rise to an unauthorized incorporation of the moneyed interest, and placed it as far as possible from the reach of future Legislative influence. It established the doctrine that one systematic financier was better able to originate money bills and tax the people of the United States, than the whole collected wisdom of their Representatives, with the aid of a reciprocity of feeling. It gave rise to the idea of a Sinking Fund, without limitation as to amount, to be placed in the hands of a few trustees, and there to be protected from Legislative control by all the sanctions and securities annexed to private property. In short, it established the doctrine that all authority could be more safely intrusted to, and better executed by a few, than by many; and, in pursuance of this idea, made more continual drafts of authority from the Representative branch of the Government, and placed it in the hands of the Executive; lessening, by this mechanism of administration, the constitutional influence of the people in the Government, and fundamentally changing its native genius and original principle. He (Mr. G.) knew of no competent remedy against the abominable evils to be apprehended from the future operation of these unhallowed principles, but a permanent establishment of the candid or Republican interest in this House; and the best chance of effecting this great object he conceived to be a full representation of the people. His alarms respecting these fashionable, energetic principles were greatly increased by a perspective view of some of the proposed measures of Government. He saw systems introduced to carve out of the common rights of one part of the community privileges, monopolies, exclusive rights, &c., for the benefit of another, with no other view, in his opinion, but to create nurseries of immediate dependants upon the Government, whose interest will always stimulate them to support its measures, however iniquitous and tyrannical, and, indeed, the very emoluments which will compose the price of their attachment to the Government will grow out of a tyrannical violation of the rights of others. He would forbear to mention a variety of other circumstances, to prove that principles having a tendency to change the very nature of the Government, have pervaded even the minutest ramifications of its fiscal arrangements, nor would he dwell upon the undue influence to be apprehended from moneyed foreigners, who had become adventurers in the funds, nor the various avenues opened to facilitate the operation of corruption. He would merely remark, that, acting under impressions produced by these considerations, and strengthened by others not less pertinent and important, suggested by a number of gentlemen, in the course of the discussion of this subject, and believing that a full representation of the people will furnish the only chance of remedy for the existing, and a competent protection against future evils, he should feel himself criminal if by his vote he should give up a single Representative authorized by the constitution. The same impressions would have induced him to have voted for the proposition which gave one hundred and twenty members, had it not been for a conscientious and paramount regard for the preservation of the constitution. The difference of the position of the members throughout the United States, which would have been assumed by the difference in the manner of making the apportionment, never amounted to the minimum of a consideration with him against the proposition; for he felt a conviction that the agricultural or equalizing interest was nearly the same throughout all parts of the United States; and he hoped that the increased representation would furnish strong testimonies of the truth of the position. He would remark, generally, the Government of America was now in a state of puberty, that is, at this time. She is to assume a fixed character, and he thought it in some degree rested upon the vote now to be given, whether she would preserve the simplicity, chastity, and purity of her native representation and Republicanism, in which alone the true dignity and greatness of her character must consist; or whether she will, so early in youth, prostitute herself to the venal and borrowed artifices and corruptions of a stale and pampered Monarchy? Whatever his own opinions or suspicions may be respecting the tendency of the present Administration, and whatever may be the discussion of to-day, he should still preserve a hope that the increased representation, supported by the enlightened spirit of the people at large, will form an effectual resistance to the pressure of the whole vices of the Administration, and may yet establish the Government upon a broad, permanent, and Republican basis. When Mr. GILES had concluded, the committee rose, and reported an amendment, viz: to fill up the blank with the word "thirty-three;" which was carried in the affirmative--yeas 34, nays 30, as follows: YEAS.--Fisher Ames, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Abraham Clark, Jonathan Dayton, Thomas Fitzsimons, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, James Gordon, Andrew Gregg, Thomas Hartley, Daniel Heister, James Hillhouse, Daniel Huger, Israel Jacobs, Aaron Kitchell, John W. Kittera, Amasa Learned, Samuel Livermore, Nathaniel Niles, Theodore Sedgwick, Jeremiah Smith, Israel Smith, William Smith, Jonathan Sturges, Peter Sylvester, George Thatcher, John Vining, Jeremiah Wadsworth, and Artemas Ward. NAYS.--John Baptist Ashe, Abraham Baldwin, John Brown, William Findlay, William B. Giles, Samuel Griffin, William Barry Grove, Philip Key, John Laurance, Richard Bland Lee, Nathaniel Macon, James Madison, John Francis Mercer, Andrew Moore, Frederick Augustus Muhlenberg, William Vans Murray, John Page, Josiah Parker, Cornelius C. Schoonmaker, Joshua Seney, Upton Sheridine, John Steele, Samuel Sterrett, Thomas Sumter, Thomas Tredwell, Thomas Tudor Tucker, Abraham Venable, Alexander White, Hugh Williamson, and Francis Willis. _Ordered_, That the said bill, together with the amendments, be engrossed and read the third time to-morrow. FRIDAY, April 20. _Publication of the Debates._ Before the House proceeded to the order of the day-- Mr. GERRY said, that the circumstance of a publication which had made its appearance that morning induced him to rise for the purpose of bringing forward a proposition respecting a full and impartial publication of the debates of that House. Every gentleman, he believed, would agree with him that, from a publication of this kind, the citizens of the United States would derive such information respecting the proceedings of the Legislature, and the principles on which the laws are grounded, as must be productive of the most salutary effects, and attach the people more strongly to the General Government; but the _ex parte_ publications can have no other tendency than to misrepresent their proceedings, and alienate the affections of the citizens. He therefore moved the following resolution: "Whereas an impartial publication of the Debates of Congress stating accurately their Legislative measures, and the reasons urged for and against them, is a desirable object, inasmuch as it may aid the Executive in administering the Government, the Judiciary in expounding the laws, the Governments and citizens of the several States in forming a judgment of the conduct of their respective Representatives, and Congress themselves in revising and amending their Legislative proceedings: And whereas, from the want of proper arrangements, such publication has not been accomplished-- "_Resolved_, That ---- persons, of good reputation, and skilled in the art of stenography, be, at the next session, appointed by ballot, to take and publish, impartially and accurately, the Legislative subjects which may be submitted to the consideration of the House, and the debates thereon of the members respectively; that the persons so to be appointed be considered as officers of the House, and provided for accordingly; that they be severally qualified by oath to a faithful discharge of the trust; and that such regulations shall be prescribed, as may be necessary to protect them in attaining the salutary objects of their appointment." This, Mr. G. said, was a subject which ought no longer to be overlooked. Whilst Congress sat at New York, great uneasiness had been occasioned in the House by the mode in which the debates were published. Sometimes members were introduced as uttering arguments directly the reverse of what they had advanced. At other times, the substance of the arguments, as published, wore an aspect widely different from what they had when offered in debate. In some instances, their arguments were so garbled that they themselves were unable to recognize them in print; in others, they were disfigured with grammatical errors, and rendered totally unintelligible; and on many occasions, the arguments on one side of the question only were published. Such were the effects produced by this mode of publication that a gentleman from South Carolina (Mr. BURKE) brought forward a motion for correcting those evils, which was debated for some time. After the subject had been two or three times under discussion, the House was informed that there was a probability of care being taken in future to correct the errors; and thus the matter was passed over. Mr. G. then mentioned a circumstance which he had learned from a gentleman who had declared he could prove it on oath before the House, if called upon, viz: that, having asked one of those persons who at that time published the debates, "how he could think of publishing them so inaccurately?" the answer was, "that he was under a necessity of obliging his employers." Hence, he concluded that there must have been a corrupt faction who influenced that short-hand writer. When Congress first came to this city, the debates were published pretty accurately; and so they were this session, in some of the papers, but, in others, the case was otherwise; and he himself, as well as other gentlemen, had been under a necessity of publicly contradicting them in print. In some of the debates, the answer to an argument was published before the argument itself made its appearance; on other occasions, they were published very fully on one side of the question, whilst nothing appeared on the other. Every gentleman, he believed, would admit that this was a true state of the business; and it was well known that, on many important occasions, no debates had been published at all. The want of regularity in the publication was, he supposed, owing, in some measure, to the want of proper encouragement, as the printers of newspapers would not probably find their account in allowing a sufficient compensation to induce short-hand writers to devote their whole time to the business. Mr. G. then read from the American Daily Advertiser (of Friday last) the following passage: "A warm debate hereupon took place, during the course of which one gentleman, who strenuously supported the motion, was several times interrupted. Apprehensions were expressed of dangerous consequences, in case his speech should appear in print; and an honorable member, who opposed the motion, (Mr. GERRY,) declared that the manner in which the Debates of Congress had been published, and the business conducted, during the present session, had a direct tendency to bring about a dissolution of the Union. "As the honorable gentleman did not further explain himself, we are at a loss to determine whether he meant to tax the publishers of the debates with inaccuracy in stating them wrong,----or imprudence, in stating them right, and freely publishing whatever sentiments any member of that House may think proper to express, in the constitutional exercise of the freedom of debate. But, certain we are, that he could not mean to stigmatize them as actuated by partiality, undue influence, or sinister motives of any kind." Here, said Mr. G., an idea was held up that the gentleman who had spoken first (Mr. MERCER) was interrupted. But it is not said that I was interrupted too. I was interrupted as often as he. The House can determine whether I have ever taken any measure to prevent a free and candid publication of the debates. On the contrary, I have always endeavored to obtain it; and I will still proceed to accomplish it as far as possible. I think neither this House nor any of its members ought to be subject to publications of this kind. If they are, they will be obliged either to enter into paper wars with printers, or to relinquish the public good. It is incumbent on the House to take measures to prevent misrepresentation. I therefore submit to the House the resolution which I have read; and I hope that, if the proposition itself appears worthy of their attention, they will take it into consideration; or, if it wants any amendment, they will refer it to a committee; for I think the subject ought not to be any longer neglected. Mr. MERCER.--I second the motion; and I think the publication which the honorable gentleman has read to the House contains but a fair statement of facts. The gentleman, in the course of the former debate, made some very strange allusions to what was said by me, which were wholly unauthorized. I consider it as a primary object in this Government that we should on this floor be at all times free to express our sentiments of the Government, without involving the Government itself. I consider such a measure as is now contemplated to be well worthy the serious attention of the House. We are at a distance from our constituents; and it is a misfortune that we are withdrawn from their inspection, by being placed in a part of the Union where it is not easy to compare our circumstances and conduct in private life with the motives which may be supposed to influence our political conduct. Our constituents ought to be acquainted with our proceedings here; and it is only from a full and accurate publication of the debates of this House that they can obtain any satisfactory information on this subject. Mr. GERRY said, that the paragraph he had read did not contain a full statement of facts, as the apprehensions he had expressed were only in case the arguments should go "_unanswered_." Mr. GILES made, and Mr. W. SMITH seconded, a motion for referring the resolution to a select committee, to report such regulation as they may think necessary for the publication of the debates. An additional reason for the reference was, that some alteration in the wording appeared necessary, to (Mr. SMITH,) so far as respects the Judiciary, &c. Mr. BOUDINOT objected to the commitment, as he thought it a subject of considerable consequence, and there would not be time to take it up during the present session, the House having already outsat the time which the other branch of the Legislature had proposed for the adjournment. This was his only objection; otherwise, he was far from being opposed to the measure. Mr. GILES thought the consequence of letting the matter lie over till next session would be, that it would die away, and nothing would be done. Unless some steps be taken during the present session, no persons would come forward as candidates at the commencement of the next. But if a committee report on the subject, the House may determine what steps are to be taken, and the people will be prepared accordingly. The question being taken on the commitment, it passed in the affirmative--yeas 27, nays, 22. _Ordered_, That the said motion be committed to Mr. GERRY, Mr. MERCER, Mr. LEE, Mr. SMITH, (of South Carolina,) and Mr. KITTERA. TUESDAY, May 8. A message was received from the Senate, notifying the House that the Senate, having completed the Legislative business before them, are now about to adjourn. Whereupon, _Ordered_, That a message be sent to the Senate to inform them that this House, having completed the business before them, are now about to adjourn until the first Monday in November next, and that the Clerk of this House do go with the said message. The Clerk accordingly went with the said message; and, being returned, The SPEAKER adjourned the House, to meet on the first Monday in November next. SECOND CONGRESS.--SECOND SESSION. BEGUN AT THE CITY OF PHILADELPHIA, NOVEMBER 5, 1792. PROCEEDINGS OF THE SENATE. MONDAY, November 5, 1792. This being the day fixed by law for the annual meeting of the second session of the second Congress, the following Senators appeared, and took their seats: JOHN LANGDON and PAINE WINGATE, from New Hampshire. CALEB STRONG and GEORGE CABOT, from Massachusetts. THEODORE FOSTER, from Rhode Island. OLIVER ELLSWORTH and ROGER SHERMAN, from Connecticut. STEPHEN R. BRADLEY and MOSES ROBINSON, from Vermont. RUFUS KING, from New York. PHILEMON DICKINSON and JOHN RUTHERFORD, from New Jersey. GEORGE READ, from Delaware. JAMES MONROE, from Virginia. JOHN BROWN and JOHN EDWARDS, from Kentucky. BENJAMIN HAWKINS, from North Carolina. PIERCE BUTLER and RALPH IZARD, from South Carolina; and WILLIAM FEW, from Georgia. In the absence of the VICE PRESIDENT, and also of RICHARD HENRY LEE, elected President _pro tempore_ at a former session, the Senate proceeded to the choice of a President _pro tempore_, as the constitution provides, and JOHN LANGDON was duly elected. JOHN BROWN and JOHN EDWARDS, from the State of Kentucky, respectively, produced their credentials; and the oath required by law was, by the PRESIDENT _pro tempore_, administered to them. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed on business. A message from the House of Representatives informed the Senate that a quorum of the House of Representatives is assembled, and ready to proceed to business. A second message informed the Senate that the House of Representatives have resolved that a committee be appointed, jointly with such committee as the Senate shall appoint, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications he may please to make to them; in which resolution they desire the concurrence of the Senate. _Resolved_, That the Senate concur in the appointment of a joint committee to wait on the PRESIDENT OF THE UNITED STATES, agreeably to the resolution of the House of Representatives, and that Messrs. IZARD and STRONG be the committee on the part of the Senate. A message from the House of Representatives informed the Senate that the House of Representatives have resolved that two Chaplains, of different denominations, be appointed to Congress, for the present session, one by each House, who shall interchange weekly; in which they desire the concurrence of the Senate. The Senate proceeded to consider the said resolution; and _Resolved_, That they do concur therein, and that the Right Rev. Bishop WHITE be the Chaplain on the part of the Senate. A message from the House of Representatives informed the Senate that the House of Representatives have proceeded to the election of a Chaplain to Congress for the present session, and have appointed the Rev. Doctor GREEN on their part. Mr. IZARD, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES, agreeably to the resolution of the two Houses of this day, reported, That they had executed the business, and that the PRESIDENT OF THE UNITED STATES proposed to meet the two Houses of Congress in the Senate Chamber to-morrow at 11 o'clock. TUESDAY, November 6. ROBERT MORRIS, from the State of Pennsylvania, attended, and took his seat. _Ordered_, That the Secretary acquaint the House of Representatives that the Senate are ready to meet them in the Senate Chamber, to receive any communications the PRESIDENT OF THE UNITED STATES may be pleased to make to the two Houses of Congress, and that the usual seats will be assigned to them. The House of Representatives having accordingly taken their seats, the PRESIDENT OF THE UNITED STATES came into the Senate Chamber, and addressed both Houses of Congress, as follows: _Fellow-Citizens of the Senate, and of the House of Representatives:_ It is some abatement of the satisfaction with which I meet you on the present occasion, that, in felicitating you on a continuance of the national prosperity, generally, I am not able to add to it information that the Indian hostilities, which have, for some time past, distressed our north-western frontier, have terminated. You will, I am persuaded, learn with no less concern than I communicate it, that reiterated endeavors, towards effecting a pacification, have hitherto issued only in new and outrageous proofs of persevering hostility on the part of the tribes with whom we are in contest. An earnest desire to procure tranquillity to the frontier; to stop the further effusion of blood; to arrest the progress of expense; to forward the prevalent wish of the nation for peace, has led to strenuous efforts, through various channels, to accomplish these desirable purposes; in making which efforts, I consulted less my own anticipations of the event, or the scruples which some considerations were calculated to inspire, than the wish to find the object attainable; or, if not attainable, to ascertain unequivocally that such is the case. A detail of the measures which have been pursued, and of their consequences, which will be laid before you, while it will confirm to you the want of success, thus far, will, I trust, evince that means as proper and as efficacious as could have been devised have been employed. The issue of some of them, indeed, is still depending; but a favorable one, though not to be despaired of, is not promised by any thing that has yet happened. In the course of the attempts which have been made, some valuable citizens have fallen victims to their zeal for the public service. A sanction commonly respected even among savages has been found, in this instance, insufficient to protect from massacre the emissaries of peace: it will, I presume, be duly considered whether the occasion does not call for an exercise of liberality towards the families of the deceased. It must add to your concern to be informed, that, besides the continuation of hostile appearances among the tribes north of the Ohio, some threatening symptoms have of late been revived among some of those south of it. A part of the Cherokees, known by the name of Chickamagas, inhabiting five villages on the Tennessee River, have long been in the practice of committing depredations on the neighboring settlements. It was hoped that the treaty of Holston, made with the Cherokee nation in July, 1791, would have prevented a repetition of such depredations. But the event has not answered this hope. The Chickamagas, aided by some banditti of another tribe, in their vicinity, have recently perpetrated wanton and unprovoked hostilities upon the citizens of the United States in that quarter. The information which has been received on this subject will be laid before you. Hitherto, defensive precautions only have been strictly enjoined and observed. It is not understood that any breach of treaty, or aggression whatsoever, on the part of the United States, or their citizens, is even alleged as a pretext for the spirit of hostility in this quarter. I have reason to believe that every practicable exertion has been made (pursuant to the provision by law for that purpose) to be prepared for the alternative of a prosecution of the war, in the event of a failure of pacific overtures. A large proportion of the troops authorized to be raised have been recruited, though the number is still incomplete. And pains have been taken to discipline and put them in condition for the particular kind of service to be performed. A delay of operations (besides being dictated by the measures which were pursuing towards a pacific termination of the war) has been in itself deemed preferable to immature efforts. A statement, from the proper Department, with regard to the number of troops raised, and some other points which have been suggested, will afford more precise information, as a guide to the Legislative consultations; and among other things, will enable Congress to judge whether some additional stimulus to the recruiting service may not be advisable. In looking forward to the future expense of the operations which may be found inevitable, I derive consolation from the information I receive, that the product of the revenues for the present year is likely to supersede the necessity of additional burdens on the community for the service of the ensuing year. This, however, will be better ascertained in the course of the session; and it is proper to add, that the information alluded to proceeds upon the supposition of no material extension of the spirit of hostility. I cannot dismiss the subject of Indian affairs without again recommending to your consideration the expediency of more adequate provision for giving energy to the laws throughout our interior frontier, and for restraining the commission of outrages upon the Indians; without which all pacific plans must prove nugatory. To enable, by competent rewards, the employment of qualified and trusty persons to reside among them as agents, would also contribute to the preservation of peace and good neighborhood. If, in addition to these expedients, an eligible plan could be devised for promoting civilization among the friendly tribes, and for carrying on trade with them, upon a scale equal to their wants, and under regulations calculated to protect them from imposition and extortion, its influence in cementing their interest with ours, could not but be considerable. The prosperous state of our revenue has been intimated. This would be still more the case were it not for the impediments which, in some places, continue to embarrass the collection of the duties on spirits distilled within the United States. These impediments have lessened, and are lessening, in local extent; and, as applied to the community at large, the contentment with the law appears to be progressive. But symptoms of increased opposition having lately manifested themselves in certain quarters, I judged a special interposition on my part proper and advisable; and, under this impression, have issued a Proclamation, warning against all unlawful combinations and proceedings, having for their object or tending to obstruct the law in question, and announcing that all lawful ways and means would be strictly put in execution for bringing to justice the infractors thereof, and securing obedience thereto. Measures have also been taken for the prosecution of offenders; and Congress may be assured that nothing within constitutional and legal limits, which may depend upon me, shall be wanting to assert and maintain the just authority of the laws. In fulfilling this trust, I shall count entirely upon the full co-operation of the other Departments of the Government, and upon the zealous support of all good citizens. I cannot forbear to bring again into the view of the Legislature the subject of a revision of the Judiciary system. A representation from the Judges of the Supreme Court, which will be laid before you, points out some of the inconveniences that are experienced. In the course of the execution of the laws, considerations arise out of the structure of that system, which, in some cases, tend to relax their efficacy. As connected with this subject, provisions to facilitate the taking of bail upon processes out of the Courts of the United States, and a supplementary definition of offences against the constitution and laws of the Union, and of the punishment for such offences, will, it is presumed, be found worthy of particular attention. Observations on the value of peace with other nations are unnecessary. It would be wise, however, by timely provisions to guard against those acts of our own citizens, which might tend to disturb it, and to put ourselves in a condition to give that satisfaction to foreign nations which we may sometimes have occasion to require from them. I particularly recommend to your consideration the means of preventing those aggressions by our citizens on the territory of other nations, and other infractions of the law of nations which, furnishing just subject of complaint, might endanger our peace with them, and, in general, the maintenance of a friendly intercourse with foreign Powers, will be presented to your attention by the expiration of the law for that purpose, which takes place, if not renewed, at the close of the present session. In execution of the authority given by the Legislature, measures have been taken for engaging some artists from abroad to aid in the establishment of our Mint: others have been employed at home. Provision has been made for the requisite buildings, and these are now putting into proper condition for the purposes of the establishment. There has also been a small beginning in the coinage of half-dimes; the want of small coins in circulation calling the first attention to them. The regulation of foreign coins, in correspondency with the principles of our national coinage, as being essential to their due operation, and in order to our money concerns, will, I doubt not, be resumed and completed. It is represented that some provisions in the law which establishes the Post Office, operate, in experiment, against the transmission of newspapers to distant parts of the country. Should this, upon due inquiry, be found to be the fact, a full conviction of the importance of facilitating the circulation of political intelligence and information will, I doubt not, lead to the application of a remedy. The adoption of a constitution for the State of Kentucky has been notified to me. The Legislature will share with me in the satisfaction which arises from an event interesting to the happiness of the part of the nation to which it relates, and conducive to the general order. It is proper likewise to inform you, that, since my last communication on the subject, and in further execution of the acts severally making provision for the Public Debt, and for the reduction thereof, three new loans have been effected, each for three millions of florins; one at Antwerp, at the annual interest of four and one-half per cent., with an allowance of four per cent., in lieu of all charges; and the other two at Amsterdam, at the annual interest of four per cent., with an allowance of five and one-half per cent. in one case, and of five per cent. in the other, in lieu of all charges. The rates of these loans, and the circumstances under which they have been made, are confirmations of the high state of our credit abroad. Among the objects to which these funds have been directed to be applied, the payment of the debts due to certain foreign officers, according to the provision made during the last session, has been embraced. _Gentlemen of the House of Representatives:_ I entertain a strong hope that the state of our national finances is now sufficiently matured to enable you to enter upon a systematic and effectual arrangement for the regular redemption and discharge of the Public Debt, according to the right which has been reserved to the Government; no measure can be more desirable, whether viewed with an eye to its intrinsic importance, or to the general sentiment and wish of the nation. Provision is likewise requisite for the reimbursement of the loan which has been made of the Bank of the United States, pursuant to the eleventh section of the act by which it is incorporated; in fulfilling the public stipulations in this particular, it is expected a valuable saving will be made. Appropriations for the current service of the ensuing year, and for such extraordinaries as may require provision, will demand, and I doubt not will engage, your early attention. _Gentlemen of the Senate, and of the House of Representatives:_ I content myself with recalling your attention, generally, to such objects, not particularized in my present, as have been suggested in my former communications to you. Various temporary laws will expire during the present session. Among these, that which regulates trade and intercourse with the Indian tribes will merit particular attention. The results of your common deliberations hitherto, will, I trust, be productive of solid and durable advantages to our constituents; such as, by conciliating more and more their ultimate suffrage, will tend to strengthen and confirm their attachment to that constitution of Government upon which, under Divine Providence, materially depend their Union, their safety, and their happiness. Still further to promote and secure these inestimable ends, there is nothing which can have a more powerful tendency, than the careful cultivation of harmony, combined with a due regard to stability in the public councils. G. WASHINGTON. UNITED STATES, _November 6, 1792._ The PRESIDENT OF THE UNITED STATES having retired, and the two Houses being separated, _Ordered_, That Messrs. STRONG, KING, and RUTHERFORD, be a committee to prepare and report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech this day, to both Houses of Congress convened in the Senate Chamber. _Ordered_, That the Speech of the PRESIDENT OF THE UNITED STATES, delivered this day, be printed for the use of the Senate. THURSDAY, November 8. JOHN HENRY, from the State of Maryland, attended, and took his seat. Agreeably to the order of the day, the Senate took into consideration the Address reported by the committee to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress; which, being recommitted and amendments reported, was agreed to, as amended. _Ordered_, That the same committee wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. Mr. STRONG, from the above-mentioned committee, reported that the PRESIDENT OF THE UNITED STATES proposed to receive the Address of the Senate at 11 o'clock to-morrow. FRIDAY, November 9. The Senate waited on the PRESIDENT OF THE UNITED STATES at his own house, and the PRESIDENT _pro tempore_, in their name, communicated to him the Address agreed to on the 8th instant, which is as follows: _To the President of the United States:_ Accept, sir, our grateful acknowledgments for your Address at the opening of the present session. We participate with you in the satisfaction arising from the continuance of the general prosperity of the nation, but it is not without the most sincere concern that we are informed that the reiterated efforts which have been made to establish peace with the hostile Indians, have hitherto failed to accomplish that desired object. Hoping that the measures still depending may prove more successful than those which have preceded them, we shall nevertheless concur in every necessary preparation for the alternative; and, should the Indians on either side of the Ohio persist in their hostilities, fidelity to the Union, as well as affection to our fellow-citizens on the frontiers, will ensure our decided co-operation in every measure which shall be deemed requisite for their protection and safety. At the same time that we avow the obligation of the Government to afford its protection to every part of the Union, we cannot refrain from expressing our regret that even a small portion of our fellow-citizens in any quarter of it should have combined to oppose the operation of the law for the collection of duties on spirits distilled within the United States: a law repeatedly sanctioned by the authority of the nation, and, at this juncture, materially connected with the safety and protection of those who oppose it. Should the means already adopted fail in securing obedience to this law, such further measures as may be thought necessary to carry the same into complete operation cannot fail to receive the approbation of the Legislature, and the support of every patriotic citizen. It yields us particular pleasure to learn, that the productiveness of the revenue of the present year will probably supersede the necessity of any additional tax for the service of the next. The organization of the government of the State of Kentucky being an event peculiarly interesting to a part of our fellow-citizens, and conducive to the general order, affords us particular satisfaction. We are happy to learn that the high state of our credit abroad has been evinced by the terms on which the new loans have been negotiated. In the course of the session we shall proceed to take into consideration the several objects which you have been pleased to recommend to our attention; and, keeping in view the importance of union and stability in the public councils, we shall labor to render our decisions conducive to the safety and happiness of our country. We repeat with pleasure our assurances of confidence in your Administration, and our ardent wish that your unabated zeal for the public good may be rewarded by the durable prosperity of the nation, and every ingredient of personal happiness. JOHN LANGDON, _President pro tempore._ To this Address, the PRESIDENT OF THE UNITED STATES was pleased to make the following reply: I derive much pleasure, gentlemen, from your very satisfactory Address. The renewed assurances of your confidence in my Administration, and the expression of your wish for my personal happiness, claim and receive my particular acknowledgments. In my future endeavor for the public welfare, to which my duty may call me, I shall not cease to count upon the firm, enlightened, and patriotic support of the Senate. G. WASHINGTON. The Senate returned to their Chamber. MONDAY, November 12. SAMUEL JOHNSTON, from the State of North Carolina, and JOSEPH STANTON, from the State of Rhode Island, attended. WEDNESDAY, November 14. The petition of William Dunbar, executor of the last will and testament of George Galphin, deceased, late a Commissioner of Indian affairs, was presented and read, praying in behalf of the children of the said George Galphin, that the compensation allowed to the other Commissioners of Indian affairs may be extended to them, the legal representatives of their late father. On motion that this petition be referred to a committee, it passed in the negative. FRIDAY, November 23. RICHARD BASSETT, from the State of Delaware, attended and took his seat. THURSDAY, January 3, 1793. A motion was made and seconded that the Senate adopt the following resolutions, to wit: "_Resolved_, That the Senate of the United States are individually responsible for their conduct to their constituents, who are entitled to such information as will enable them to form a just estimate thereof. "_Resolved_, That the journals are too voluminous and expensive to circulate generally; and, if it were otherwise, that the information they contain, as to the principles, motives, and designs of individual members, is inadequate. "_Resolved_, That this information, defective as it is, becomes more nugatory and delusive, in proportion as the occasion for it increases, since the Senate make their own Journals. "_Resolved_, That the conducting of the Legislative and Judicial powers of the Senate in public, and suffering an account of their measures and deliberations to be published in the newspapers, is the best means of diffusing general information concerning the principles, motives, and conduct of individual members; and that, by withholding this information, responsibility becomes unavailing, the influence of their constituents over one branch of the Legislature, in a great measure, annihilated, and the best security which experience has devised against the abuse of power and a maladministration abandoned. "_Resolved_, _therefore_, That it be a standing rule that the doors of the Senate Chamber remain open whilst the Senate shall be sitting in a Legislative and Judicative capacity, except on such occasions as, in their judgment, may require secrecy; and that this rule shall commence and be in force on the first day of the next session of Congress. "_Resolved_, That the Secretary of the Senate request the Commissioners of the city and county of Philadelphia to cause a proper gallery to be erected for the accommodation of an audience." On motion that the resolves now proposed be printed for the use of the Senate, it passed in the negative. _Ordered_, That they lie on the table, and that the consideration thereof be the order of the day for the first Monday in February next. FRIDAY, January 4. The Senate resumed the second reading of the bill respecting fugitives from justice, and persons escaping from the service of their masters, and the report of the committee thereon; and, after debate, the consideration thereof was further postponed. FRIDAY, January 18. The bill respecting fugitives from justice and persons escaping from the service of their masters, was read the third time, and being further amended, on a motion to strike out "five hundred dollars," for the purpose of inserting a less sum in section 4th, the penalty on "any person who shall knowingly and willingly obstruct or hinder such claimant, his agent or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent, or attorney, when so arrested, pursuant to the authority herein given or declared, or shall harbor or conceal such person, after notice that he or she was a fugitive from labor as aforesaid;" it passed in the negative. _Resolved_, that this bill pass, that it be engrossed, and that the title thereof be, "An act respecting fugitives from justice, and persons escaping from the service of their masters." MONDAY, February 4. RICHARD POTTS, from the State of Maryland, appointed in place of CHARLES CARROLL, resigned, produced his credentials, and took his seat. Agreeably to the order of the day, the Senate proceeded to consider the motion made the 3d of January, 1793, "That the doors of the Senate Chamber remain open whilst the Senate shall be sitting in their Legislative and Judicative capacity." On motion for the previous question, to wit: Shall the question be now put on the following preliminary resolutions? "_Resolved_, That the Senate of the States are, individually, responsible for their conduct to their constituents, who are entitled to such information as will enable them to form a just estimate thereof: "_Resolved_, That the journals are too voluminous and expensive to circulate generally; and, if it were otherwise, that the information they contain, as to the principles, motives, and designs, of individual members, is inadequate: "_Resolved_, That this information, defective as it is, becomes more nugatory and delusive, in proportion as the occasion for it increases, since the Senate make their own journals: "_Resolved_, That the conducting of the Legislative and Judicial powers of the Senate in public, and suffering an account of their measures and deliberations to be published in the newspapers, is the best means of diffusing general information concerning the principles, motives, and conduct, of individual members: and that, by withholding this information, responsibility becomes unavailing, the influence of their constituents over one branch of the Legislature in a great measure annihilated, and the best security which experience has devised against the abuse of power and a maladministration abandoned:" It passed in the negative--yeas 7, nays 21, as follows: YEAS.--Messrs. Burr, Butler, Edwards, Gunn, Monroe, Potts, and Taylor. NAYS.--Messrs. Bassett, Bradley, Brown, Cabot, Dickinson, Ellsworth, Foster, Hawkins, Henry, Johnston, Izard, King, Langdon, Morris, Read, Robinson, Rutherford, Stanton, Sherman, Strong, and Wingate. And on motion to agree to the main question, to wit: "that the doors of the Senate Chamber remain open whilst the Senate shall be sitting in a Legislative and Judicative capacity, except on such occasions as, in their judgment, may require secrecy; and that this rule shall commence and be in force on the first day of the next session of Congress." It passed in the negative--yeas 10, nays 18, as follows: YEAS.--Messrs. Brown, Burr, Butler, Edwards, Gunn, Hawkins, King, Monroe, Potts, and Taylor. NAYS.--Messrs. Bassett, Bradley, Cabot, Dickinson, Ellsworth, Foster, Henry, Johnston, Izard, Langdon, Morris, Read, Robinson, Rutherford, Sherman, Stanton, Strong, and Wingate. On the question to agree to the last resolution moved for on this subject, it passed in the negative. TUESDAY, February 5. A message from the House of Representatives informed the Senate, that the House of Representatives have resolved, that a committee be appointed to join such committee as may be appointed by the Senate to ascertain and report a mode of examining the votes for PRESIDENT and VICE PRESIDENT, and of notifying the persons who shall be elected of their election; and for regulating the time, place, and manner, of administering the oath of office to the PRESIDENT; and have appointed a committee on their part. This resolution of the House was read. _Ordered_, That the consideration thereof be postponed until to-morrow. The Senate proceeded to consider the amendment of the House of Representatives to the bill sent from the Senate for concurrence, entitled, "An act respecting fugitives from justice, and persons escaping from the service of their masters," and agreed to the amendment, to wit: To strike out the word "deemed," in section first. _Ordered_, That the Secretary acquaint the House of Representatives therewith. WEDNESDAY, February 6. The Senate proceeded to consider the resolution of the House of Representatives, that a committee be appointed, to join such committee as may be appointed by the Senate, to ascertain and report a mode of examining the votes for PRESIDENT and VICE PRESIDENT, and of notifying the persons who shall be elected of their election, and for regulating the time, place and manner of administering the oath of office to the PRESIDENT. _Resolved_, That the Senate concur in this resolution, and that Messrs. KING, IZARD, and STRONG be the committee on the part of the Senate. MONDAY, February 11. Mr. KING, from the joint committee, appointed the 6th February, instant, reported that the two Houses should assemble in the Senate Chamber on Wednesday next, at twelve o'clock; that one person be appointed a teller, on the part of the Senate, to make a list of the votes as they shall be declared; that the result shall be delivered to the PRESIDENT of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses assembled as aforesaid; which shall be deemed a declaration of the persons elected PRESIDENT and VICE PRESIDENT, and, together with a list of the votes, be entered on the journals of the two Houses, and the report was agreed to. TUESDAY, February 12. A message from the House of Representatives informed the Senate, that the House of Representatives agree to the report of the joint committee appointed the 6th of February, instant, respecting the manner of counting the votes for PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES. _Ordered_, That Mr. KING be appointed, on the part of the Senate, a teller of the votes for PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES, conformably to the report of the joint committee, agreed to the 11th instant. WEDNESDAY, February 13. _Ordered_, That the Secretary notify the House of Representatives that the Senate are ready to meet them in the Senate Chamber, to attend the opening and counting the vote for PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES, as the constitution provides. The two Houses having accordingly assembled, the certificates of the Electors of the fifteen States in the Union, which came by express, were, by the VICE PRESIDENT, opened, read, and delivered to the tellers appointed for the purpose, who, having examined and ascertained the votes, presented a list of them to the VICE PRESIDENT; which list was read to the two Houses, and is as follows: FOR GEORGE WASHINGTON. New Hampshire, 6 Massachusetts, 16 Rhode Island, 4 Connecticut, 9 Vermont, 3 New York, 12 New Jersey, 7 Pennsylvania, 15 Delaware, 3 Maryland, 8 Virginia, 21 Kentucky, 4 North Carolina, 12 South Carolina, 8 Georgia, 4 --- 132 FOR JOHN ADAMS. New Hampshire, 6 Massachusetts, 16 Rhode Island, 4 Connecticut, 9 Vermont, 3 New Jersey, 7 Pennsylvania, 14 Delaware, 3 Maryland, 8 South Carolina, 7 -- 77 FOR GEORGE CLINTON. New York, 12 Pennsylvania, 1 Virginia, 21 North Carolina, 12 Georgia, 4 -- 50 FOR THOMAS JEFFERSON. Kentucky, 4 FOR AARON BURR. South Carolina, 1 Whereupon the VICE PRESIDENT declared GEORGE WASHINGTON unanimously elected PRESIDENT of the UNITED STATES, for the period of four years, to commence with the fourth day of March next; and JOHN ADAMS elected by a plurality of votes, VICE PRESIDENT of the UNITED STATES, for the same period, to commence with the 4th day of March next. After which, the VICE PRESIDENT delivered the duplicate certificates of the Electors of the several States, received by post, together with those which came by express to the Secretary of the Senate. The two Houses then separated, and the Senate adjourned. THURSDAY, February 14. Mr. KING, from the committee appointed the 6th instant, to join the committee on the part of the House of Representatives, to report a mode of notifying the person who should be elected PRESIDENT OF THE UNITED STATES of his election, submitted the following resolve: _Resolved_, That a committee be appointed to join such committee as shall be appointed by the House of Representatives, to wait on the PRESIDENT and notify him of his unanimous re-election to the office of PRESIDENT OF THE UNITED STATES. And the report was adopted. _Ordered_, That Messrs. KING, IZARD, and STRONG, be the committee on the part of the Senate. A message from the House of Representatives informed the Senate that the House of Representatives have adopted the report of the joint committee, appointed the 6th instant, to ascertain and report a mode of examining the votes for _President_ and VICE PRESIDENT OF THE UNITED STATES, and for other purposes; and have appointed a joint committee on their part to wait on the PRESIDENT, and notify him of his unanimous re-election to the office of PRESIDENT OF THE UNITED STATES. FRIDAY, February 15. Mr. KING, from the joint committee appointed for that purpose, reported: "That pursuant to the resolutions of the 14th instant, the joint committee of the Senate and House of Representatives have this day waited on the PRESIDENT, and notified him of his unanimous re-election to the office of PRESIDENT OF THE UNITED STATES." MONDAY, February 18. On motion to adopt the following resolution, to wit: _Resolved_, That the Secretary of the Treasury be instructed to revise the account of the pension granted by Congress for the education and board of Hugh Mercer, son of the late General Mercer, from its date to the present period, and correct any error that may have taken place therein, paying all arrearages, if any now due; and that he likewise pay hereafter without account, annually, and until his education shall be completed, for that purpose, to the guardian of the said Hugh, the sum of four hundred dollars. It was agreed to postpone the consideration of this motion until to-morrow. THURSDAY, February 28. The VICE PRESIDENT laid before the Senate a certificate, purporting that the Legislature of the Commonwealth of Pennsylvania have this day chosen ALBERT GALLATIN a Senator of the United States. FRIDAY, March 1. The PRESIDENT laid before the Senate a Letter from the Secretary of the Department of State, enclosing a triplicate certificate of the votes of the Electors of the State of Kentucky for PRESIDENT and VICE PRESIDENT OF THE UNITED STATES, obtained by express, sent from the seat of Government, as the law provides. SATURDAY, March 2. Mr. KING, from the committee appointed this day on the communication of the PRESIDENT OF THE UNITED STATES, relative to his taking the oath of office, reported that the Secretary inform the House of Representatives that the PRESIDENT OF THE UNITED STATES will, on Monday next, take the oath of office required by the constitution, in the Senate Chamber, at twelve o'clock; and that he inform the PRESIDENT OF THE UNITED STATES that the Senate will be in session at that time. And the report was adopted. SPECIAL SESSION. MONDAY, March 4. In conformity to the summons from the PRESIDENT OF THE UNITED STATES, the Senate assembled in the Senate Chamber. The Hon. JOHN LANGDON, President _pro tempore_, read the summons of the PRESIDENT OF THE UNITED STATES, as follows: _The President of the United States to the President of the Senate:_ Certain matters, touching the public good, requiring that the Senate shall be convened on Monday the 4th instant, I have desired their attendance, as I do yours, by these presents, at the Senate Chamber, in Philadelphia, on that day; then and there to receive and deliberate on such communications as shall be made to you on my part. G. WASHINGTON. _March 1, 1793._ The following Senators were present: JOHN LANGDON, from New Hampshire. GEORGE CABOT, from Massachusetts. THEODORE FOSTER, from Rhode Island. OLIVER ELLSWORTH and ROGER SHERMAN, from Connecticut. RUFUS KING, from New York. JOHN RUTHERFORD, from New Jersey. ROBERT MORRIS, from Pennsylvania. GEORGE READ, from Delaware. JOHN HENRY and RICHARD POTTS, from Maryland. JAMES MONROE, from Virginia. JOHN BROWN and JOHN EDWARDS, from Kentucky. BENJAMIN HAWKINS, from North Carolina. RALPH IZARD, from South Carolina. JAMES GUNN, from Georgia. SAMUEL LIVERMORE, from the State of New Hampshire, produced his credentials, and took his seat in the Senate; and the oath was administered to him by the PRESIDENT of the Senate, as the law provides. Agreeably to notice given by the PRESIDENT OF THE UNITED STATES, on the 2d instant, he came to the Senate Chamber and took his seat in the chair usually assigned the PRESIDENT of the Senate, who, on this occasion, was seated at the right, and in advance of the PRESIDENT OF THE UNITED STATES; a seat on the left, and also in advance, being provided for Judge Cushing, appointed to administer the oath: the doors of the Senate Chamber being open, the Heads of the Departments, Foreign Ministers, the late Speaker, and such members of the late House of Representatives as were in town, together with as many other spectators as could be accommodated, were present. After a short pause, the PRESIDENT of the Senate arose, and addressed the PRESIDENT OF THE UNITED STATES, as follows: "SIR: One of the Judges of the Supreme Court of the United States is now present, and ready to administer to you the oath required by the constitution to be taken by the PRESIDENT OF THE UNITED STATES." On which the PRESIDENT OF THE UNITED STATES, rising from his seat, was pleased to address the audience as follows: "FELLOW-CITIZENS: I am again called upon, by the voice of my country, to execute the functions of its Chief Magistrate. When the occasion proper for it shall arrive, I shall endeavor to express the high sense I entertain of this distinguished honor, and of the confidence which has been reposed in me by the people of United America. "Previous to the execution of any official act of the PRESIDENT, the constitution requires an oath of office. This oath I am now about to take, and in your presence; that, if it shall be found, during my administration of the Government, I have, in any instance, violated, willingly or knowingly, the injunction thereof, I may (besides incurring constitutional punishment) be subject to the upbraidings of all who are now witnesses of the present solemn ceremony." Judge CUSHING then administered the oath of office required by the constitution; after which, the PRESIDENT OF THE UNITED STATES retired, and the spectators dispersed. After acting upon several nominations received from the PRESIDENT, the Senate adjourned _sine die_. SECOND CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, November 5, 1792. This being the day appointed by law for the meeting of the present Congress, the following members appeared, produced their credentials, and took their seats: _From New Hampshire_, NICHOLAS GILMAN, SAMUEL LIVERMORE, and JEREMIAH SMITH. _From Massachusetts_, FISHER AMES, SHEARJASHUR BOURNE, ELBRIDGE GERRY, BENJAMIN GOODHUE, GEORGE THATCHER, and ARTEMAS WARD. _From Rhode Island_, GEORGE LEONARD, BENJAMIN BOURNE. _From Connecticut_, AMASA LEARNED, JONATHAN STURGES, and JONATHAN TRUMBULL, (Speaker.) _From Vermont_, NATHANIEL NILES and ISRAEL SMITH. _From New York_, EGBERT BENSON, JOHN LAURANCE, and THOMAS TREDWELL. _From New Jersey_, ELIAS BOUDINOT, ABRAHAM CLARK, and JONATHAN DAYTON. _From Pennsylvania_, THOMAS FITZSIMONS and FREDERICK AUGUSTUS MUHLENBERG. _From Maryland_, PHILIP KEY and WILLIAM VANS MURRAY. _From Virginia_, WILLIAM B. GILES, JAMES MADISON, ANDREW MOORE, JOSIAH PARKER, ABRAHAM VENABLE, and ALEXANDER WHITE. _From North Carolina_, NATHANIEL MACON, JOHN STEELE, and HUGH WILLIAMSON. _From South Carolina_, WILLIAM SMITH, THOMAS SUMTER, and THOMAS TUDOR TUCKER. _From Georgia_, ABRAHAM BALDWIN and FRANCIS WILLIS. A quorum of members being present, a message was sent to the Senate to inform that body thereof. And a similar message was received by the House from the Senate; and that JOHN LANGDON had been chosen their President _pro tempore_. A joint committee were then appointed to wait on the PRESIDENT OF THE UNITED STATES, to inform him that a quorum of the two Houses is assembled, and ready to receive any communications he may think proper to make them. _Resolved_, That two Chaplains, of different denominations, be appointed to Congress, one by each House, to interchange weekly. The House then proceeded to appoint a Chaplain on their part, when a majority of votes appeared in favor of the Reverend ASHBEL GREEN. The SPEAKER laid before the House a letter from the Governor of Georgia, enclosing a proclamation and return of the election of JOHN MILLEDGE, to serve as one of the members of this House for the said State, in the room of ANTHONY WAYNE, whose seat was declared vacant; which was read and ordered to lie on the table. Mr. BOUDINOT, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled and ready to receive any communications he may be pleased to make to them, reported that the committee had performed that service, and that the PRESIDENT was pleased to say, that he would make a communication to both Houses of Congress to-morrow, at twelve o'clock in the Senate Chamber. TUESDAY, November 6. Several other members, viz: from New York, JAMES GORDON; from Pennsylvania, JOHN WILKES KITTERA; and from Virginia, SAMUEL GRIFFIN and JOHN PAGE, appeared, and took their seats in the House. A message from the Senate informed the House that the Senate are now ready, in the Senate Chamber, to attend this House in receiving the communication from the PRESIDENT OF THE UNITED STATES, agreeably to his notification to both Houses yesterday. The SPEAKER, attended by the members of this House, then withdrew to the Senate Chamber for the purpose expressed in the message from the Senate; and, being returned, the SPEAKER laid before the House a copy of the Speech delivered by the PRESIDENT OF THE UNITED STATES to both Houses of Congress, in the Senate Chamber. [A copy of the Speech appears in the proceedings of the Senate.] _Ordered_, That the said Speech be committed to the consideration of a Committee of the whole House to-morrow. WEDNESDAY, November 7. _Defeat of General St. Clair._ _Ordered_, That the report of the committee appointed to inquire into the causes of the failure of the late expedition under Major General St. Clair, which was made on the 8th day of May last, be referred to the consideration of a Committee of the whole House on Wednesday next. _Answer to the President._ The order of the day being called for, (Mr. LAURANCE in the chair,) the Speech of the PRESIDENT, delivered yesterday to Congress, was taken up; and, on motion of Mr. SMITH, of South Carolina, the following resolve was agreed to: "That a committee be appointed to prepare and report a respectful Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech delivered to both Houses of Congress at the opening of the present session; with assurances, that they would take into consideration the important matters therein contained." An amendment was now moved, to strike out the word "important;" but it was negatived, as being a word of too much importance to be neglected. The resolution was carried, in substance, as above, and the committee rose and reported it. The House immediately agreed, and a committee of three--Messrs. MADISON, BENSON, and MURRAY--were appointed by the SPEAKER to prepare the answer in conformity with the said resolve. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ I lay before you copies of certain papers relative to the Spanish interference in the execution of the treaty entered into in the year 1790, between the United States, and the Creek nation of Indians, together with a letter from the Secretary of State to the President of the United States, on the same subject. G. WASHINGTON. UNITED STATES, November 7, 1792. The papers accompanying the said message were read and ordered to lie on the table. The SPEAKER laid before the House two letters from Thomas Barclay, Consul of the United States at the Court of Morocco, one dated the 28th of May, the other the 17th of July, 1792, enclosing petitions from Richard O'Brien, in behalf of himself and other citizens of the United States, now in captivity at Algiers, stating the peculiar hardships they have undergone during the time they have been kept in slavery, and praying that Congress will consider their distressed situation, and take such measures for their releasement as to their wisdom shall seem meet. _Ordered_, That the said letters and petitions be referred to the Secretary of State, for information. THURSDAY, November 8. Several other members, to wit: from Connecticut, JAMES HILLHOUSE; from Pennsylvania, WILLIAM FINDLAY and ISRAEL JACOBS; and from Kentucky, ALEXANDER D. ORR, appeared, and took their seats in the House. SATURDAY, November 10. Two other members, to wit: PETER SYLVESTER, from New York, and THOMAS HARTLEY, from Pennsylvania, appeared, and took their seats in the House. _Address to the President._ The House resolved itself into a Committee of the whole House on the Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress; and, after some time spent therein, the SPEAKER resumed the chair, and Mr. LAURANCE reported that the committee had had the said Address under consideration, and made several amendments thereto; which were severally twice read, and agreed to by the House. And then the said Address, as amended, being again read, was, on the question put thereon, agreed to by the House, as follows: "SIR: The House of Representatives, who always feel a satisfaction in meeting you, are much concerned that the occasion for mutual felicitation afforded by the circumstances favorable to the national prosperity should be abated by a continuance of the hostile spirit of many of the Indian tribes, and, particularly, that the reiterated efforts for effecting a general pacification with them should have issued in new proofs of their persevering enmity, and the barbarous sacrifice of citizens, who, as the messengers of peace, were distinguishing themselves by their zeal for the public service. In our deliberations on this important department of our affairs, we shall be disposed to pursue every measure that may be dictated by the sincerest desire, on one hand, of cultivating peace, and manifesting, by every practicable regulation, our benevolent regard for the welfare of those misguided people; and by the duty we feel, on the other, to provide effectually for the safety and protection of our fellow-citizens. "While with regret we learn that symptoms of opposition to the law imposing duties on spirits distilled within the United States, have manifested themselves, we reflect with consolation, that they are confined to a small portion of our fellow-citizens. It is not more essential to the preservation of true liberty, that a Government should be always ready to listen to the representations of its constituents, and to accommodate its measures to the sentiments and wishes of every part of them, as far as will consist with the good of the whole, than it is, that the just authority of the laws should be steadfastly maintained. Under this impression, every department of the Government, and all good citizens must approve the measures you have taken, and the purpose you have formed, to execute this part of your trust with firmness and energy; and be assured, sir, of every constitutional aid and co-operation, which may become requisite on our part. And we hope that, while the progress of contentment under the law in question, is as obvious as it is rational, no particular part of the community may be permitted to withdraw from the general burdens of the country, by a conduct as irreconcilable to national justice, as it is inconsistent with public decency. "The productive state of the public revenue, and the confirmation of the credit of the United States abroad, evinced by the loans at Antwerp and Amsterdam, are communications the more gratifying, as they enforce the obligation to enter on systematic and effectual arrangements for discharging the public debt, as fast as the conditions of it will permit; and we take pleasure in the opportunity to assure you of our entire concurrence in the opinion, that no measure can be more desirable, whether viewed with an eye to the urgent wish of the community, or the intrinsic importance of promoting so happy a change in our situation. "The adoption of a constitution for the State of Kentucky, is an event on which we join in all the satisfaction you have expressed. It may be considered as particularly interesting, since, besides the immediate benefits resulting from it, it is another auspicious demonstration of the facility and success with which an enlightened people is capable of providing, by free and deliberate plans of government, for their own safety and happiness. "The operation of the law establishing the Post Office, as it relates to the transmission of newspapers, will merit our particular inquiry and attention, the circulation of political intelligence through these vehicles being justly reckoned among the surest means of preventing the degeneracy of a free government, as well as of recommending every salutary public measure to the confidence and co-operation of all virtuous citizens. "The several other matters which you have communicated and recommended, will, in their order, receive the attention due to them, and our discussions will, in all cases, we trust, be guided by a proper respect for harmony and stability in the public Councils, and a desire to conciliate, more and more, the attachment of our constituents to the constitution, by measures accommodated to the true ends for which it was established." _Resolved_, That the SPEAKER, attended by the House, do present the said Address, and that Mr. MADISON, Mr. BENSON, and Mr. MURRAY, be a committee to wait on the PRESIDENT, to know when and where it will be convenient for him to receive the same. Mr. MADISON, from the committee appointed to wait on the PRESIDENT OF THE UNITED STATES, to know when and where it will be convenient for him to receive the Address of this House, in answer to his Speech to both Houses of Congress, reported that the committee had waited on the PRESIDENT, who signified to them that it would be convenient to him to receive the said Address at 12 o'clock on Monday next, at his own house. MONDAY, November 12. Another member, to wit, JOHN BAPTIST ASHE, from North Carolina, appeared, and took his seat in the House. _Address to the President._ The SPEAKER, attended by the House, then withdrew to the house of the PRESIDENT OF THE UNITED STATES, and there presented to him the Address of this House, in answer to his Speech to both Houses of Congress; to which the PRESIDENT made the following reply: "GENTLEMEN: It gives me pleasure to express to you the satisfaction which your Address affords me. I feel, as I ought, the approbation you manifest of the measures I have taken, and the purpose I have formed, to maintain, pursuant to the trust reposed in me by the constitution, the respect which is due to the laws; and the assurance which you, at the same time, give me, of every constitutional aid and co-operation that may become requisite on your part. "This is a new proof of that enlightened solicitude for the establishment and confirmation of public order, which, embracing a zealous regard for the principles of true liberty, has guided the deliberations of the House of Representatives; a perseverance in which can alone secure, under the Divine blessing, the real and permanent felicity of our common country. "G. WASHINGTON." The House having returned to their Chamber, resumed the reading of the papers communicated by the Secretary of War, on Wednesday last, relative to the Indians north-west and south of the river Ohio, and to the troops in the service of the United States, and made a farther progress therein. TUESDAY, November 13. Two other members, to wit: ROBERT BARNWELL and DANIEL HUGER, from South Carolina, appeared, and took their seats in the House. _Defeat of General St. Clair._ On a motion made and seconded, that the House do come to the following resolution: "_Resolved_, That the Secretary of the Treasury and the Secretary of War be notified that this House intend, on Wednesday next, to take into consideration the Report of the committee appointed to inquire into the causes of the failure of the late expedition under General St. Clair, to the end that they may attend the House, and furnish such information as may be conducive to the due investigation of the matters stated in the said report:" Mr. WILLIAMSON moved to strike out the latter part of the resolution, which respected the attendance of the Secretaries on the House. This motion, if carried, leaves the resolution a simple proposition to inform those officers that the House were, on Wednesday, to take the report on the failure of General St. Clair's expedition into consideration. Mr. VENABLE objected generally to the resolution, as inconsistent with the dignity of the House. He doubted the propriety of the measure altogether. The gentlemen are not impeached, and therefore the House has no right to cite them to make their appearance; and, with respect to information, the House can command such from the Heads of Departments as they may see proper to require. He was at a loss in attempting to investigate the object of the resolution. He could see no purpose that it would answer, which could not as well be obtained without it. Mr. WHITE offered several objections to the resolution, of a similar import with the above. Mr. DAYTON supported the motion by a few remarks, stating the importance of that information which those gentlemen alone could give. He adverted to the report of the committee, which he observed had exculpated the commanding General on that expedition, whereas he was of opinion that the failure was owing to the misconduct of that gentleman. Mr. TUCKER objected to the resolution. He preferred the mode of requiring that information which the House might think necessary, in writing. Mr. MADISON objected to the motion on constitutional grounds, and as being contrary to the practice of the House. He had not, he said, thoroughly revolved the matter in his own mind, and therefore was not prepared to state fully the effects which would result from the adoption of the resolution; but he would hazard thus much, that it would form an innovation in the mode of conducting the business of this House, and introduce a precedent which would lead to perplexing and embarrassing consequences; as it involved a conclusion, in respect to the principles of the Government, which at an earlier day would have been revolted from. He was decidedly in favor of written information. Mr. CLARK was opposed to the resolution; as a member of the committee who made the report, he had no apprehension; with respect to information, the report and the vouchers are before the House; and such further inquiry may be made of the proper officers as the House may think necessary. Mr. AMES supported the resolution. He noticed the impressions which the failure of the late expedition had made on the public mind. Characters had suffered in the general estimation. It was of the utmost importance that a thorough investigation should take place, that if the failure of the expedition was a mere casualty, and the fortune of war, it might be made to appear; or if it was owing to misconduct, the blame might fall on the proper subjects. The mode suggested to obtain information appeared to him the best that could be adopted--the most adequate to the object. It was due to justice, to truth, and to the national honor, to take effectual measures to investigate the business thoroughly. This inquiry appears to be the beginning of an arrangement preparatory to an impeachment; on whom this will fall, he should not presume to say; but still it places the subject in an important point of view, and shows in the strongest manner the necessity of adopting the best possible mode of ascertaining the real state of facts. This, he conceived, could not be done so effectually as by the mode proposed in the resolution. Mr. GILES objected to the resolution. He preferred a thorough discussion of the report, in the first place, and a comparison of the vouchers with the report; and if, in the issue, it should appear necessary to call for information from these officers, it could then be done; but, in the present state of the business, to adopt the resolution would place the committee in a very disagreeable situation. Mr. LAURANCE observed that the committee, in their report, say that, for want of time, they had not been able to complete it; it is, then, apparent from the report itself that it is immature. He stated several particulars in the report which were incomplete, and from hence inferred that there was material information to be received previous to being able to form a competent judgment on the matter. He observed that, as the information must be had, he saw no necessity of postponing the attendance of those officers in the first instance. Mr. MADISON, in reply to Mr. AMES's remark, that the best possible mode ought to be adopted, observed, that there seemed to be different ideas entertained by the different advocates of the resolution; one seemed to implicate the officers alluded to as parties concerned; another appeared to consider them merely as witnesses. For his part, he thought there was no other way of proceeding, but that of adopting one or the other of these alternatives: either to take up the report and discuss its merits, or for the House to begin the inquiry themselves, _de novo_. Mr. LIVERMORE objected to the resolution. He could not see any advantage which would result from adopting it. He thought the causes of the failure of the expedition were sufficiently obvious, without criminating any body. He adverted to these causes--they were, the rawness of the troops, and the superiority of the Indians as marksmen. On these points he could not see what information could be derived from the Secretary of the Treasury. He thought that the Legislature had gone too far already, and that no satisfaction would result from further proceedings, but that the subject would appear more and more involved. Mr. BOUDINOT, after stating sundry particulars relative to the state of the public mind at the time of the report, adverted to several parts of it which appear to criminate particular persons, some of whom were absent at the time of the investigation on which the report is founded. He therefore urged the necessity of receiving from the Heads of the Departments that information which was requisite to throw light on several parts of the report, and that this ought to be done previous to taking the report into consideration. Mr. FITZSIMONS said he should vote against the resolution. He did not think this the proper time to call for the information alluded to; nor the mode proposed a proper one. Some remarks have been made on the report, though it is not before the House; to these he should not particularly reply, but would only observe, that no person had applied to the House for redress of any supposed injury received by the report. It has been said that the inquiry ought to have been a military one; but it was well known that it was impossible to institute such an inquiry by reason of the want of officers. He then gave a sketch of the mode of proceeding adopted by the committee in conducting the inquiry, to show that they had availed themselves of every means of information within their power. Mr. WILLIAMSON said he had moved to strike out the latter part of the resolution, but he was equally opposed to the whole of it; and since he had heard the remarks of several gentlemen, on both sides of the House, he was clearly of opinion that the best way was to dispose of it altogether, and let the subject proceed in the course which it had already taken. Mr. GILES observed, that he thought there was less delicacy observed on this occasion, in respect to the committee, than was usual in this House. With respect to the report, the vouchers on which every assertion is founded are before the House. As to the incompleteness of the report, it is an immaterial object; the few blanks it contains are occasioned by the want of time to examine the voluminous papers necessary to be examined, in order to ascertain some of the facts--facts not in themselves of the first importance. He observed, that he had not the smallest objection to the fullest investigation of the subject; he was in favor of all the information that could be possibly obtained; he objected not only to the mode now contended for, which he thought not only liable to all the objections which had been made, but to many others which might be offered. Mr. DAYTON observed that he was one of those who were not satisfied with the report; he did not think the conclusion which exculpated the commanding officer could be supported by the report itself. He adverted to several facts stated in it, which showed that the commander must have been highly culpable; he instanced the slowness of his movements, the dilatoriness in constructing forts, and his being surprised by the enemy. He thought that the remarks which had fallen from gentlemen, on what he had said, were illiberal, as they had virtually impeached his candor, when he was not conscious of deviating from its dictates. It was not his intention to have touched on the merits of the report, but he had been impelled to do it from the turn the debate had taken. Mr. GERRY was in favor of the resolution. He enlarged on the magnitude of the object of investigation, and insisted that it was the indispensable duty of the House thoroughly to probe the subject to the bottom, that if any persons have been to blame they may suffer, or if the event which has taken place, by which the national character has suffered, and so severe and unproductive an expense has been incurred, amounting probably to one million dollars, has been owing to circumstances which could not be avoided or controlled, the public may receive satisfaction as to the whole matter. Mr. PAGE objected to the resolution, particularly to the precedent it would establish; but, at the same time, he was in favor of the fullest inquiry the subject was susceptible of. He said, the mode proposed would operate to clog the freedom of inquiry, and the freedom of debate. Mr. AMES, adverting to the spirit of the report, pointed out the peculiar situation of the two Secretaries, and that they did not stand on the same ground with other persons who are not so intimately implicated in the matter. He alluded to the various objections which had been urged from precedent, from the fulness of the investigation which the subject had undergone in the hands of the committee, and from the remark by Mr. LIVERMORE, that sufficient had already been done. To this last objection he particularly replied, by saying that the public wanted further satisfaction, and that the House could not justify themselves to their constituents without a stricter and fuller investigation, that the whole of the facts might be laid before them. Mr. MADISON said, the mode now proposed involved a dereliction of the only practicable mode of transacting public business; and that, however imperfect that mode might be, still he believed that it was the only one that had received the sanction of experience and utility. He therefore hoped that the resolution would be rejected, and the mode already adopted persevered in, and the necessary information called for in writing, from every person in anywise interested or competent to give it. Mr. W. SMITH supported the resolution. He showed by the report itself, and from the reasoning used by gentlemen in opposition to the resolution, that the two Secretaries were implicated in the causes of the failure of the expedition; from hence, he inferred the justice and propriety of giving them an opportunity of exculpating themselves. Mr. GERRY expressed surprise at the apprehension which some gentlemen appear to entertain of the measure of introducing the Heads of Departments into the House; for his part he had no such apprehensions. The Secretary will attend at the orders of the House merely to give such information as may be required, and not as members or ministers to influence and govern the determinations of the House. Mr. VENABLE objected further to the resolution; he urged the impropriety of any of the Heads of Departments coming forward, and attempting in any way to influence the deliberations of the Legislature. Mr. LAURANCE replied to Mr. VENABLE; he observed that the gentleman appeared to mistake the object of the resolution; it was not contemplated that either of the Secretaries should appear on the floor of the House to influence, in any degree, its decisions; they are to be called on merely for information. Mr. MURRAY objected to the resolution. The report, he observed, is made to the House; if in the course of its discussion any further light or information should be deemed necessary, it may then be called for, and in that mode which shall appear most eligible; at present the question appears to be premature. Mr. MURRAY added several other remarks, and then the question being put, Mr. WILLIAMSON's motion for striking out was carried. And then the main question being put, that the House do agree to the said resolution as amended, it passed in the negative. _Resolved_, That the Committee of the whole House, to whom is referred the report of the committee appointed to inquire into the causes of the failure of the expedition under Major General St. Clair, be empowered to send for persons, papers, and records, for their information. WEDNESDAY, November 14. Another member, to wit, WILLIAM BARRY GROVE, from North Carolina, appeared and took his seat in the House. The SPEAKER laid before the House a letter from the Secretary of War, together with a memorial of Samuel Hodgdon, late Quartermaster General to the Army, respectively praying that they may be heard, and permitted to give information and explanations as to the causes of the failure of the expedition under Major General St. Clair; which were read. The letter of the Secretary of War is as follows: WAR DEPARTMENT, _November 14, 1792_. SIR: After the close of the last session of Congress, I saw with much concern the report to the committee appointed to inquire into the causes of the failure of the expedition, under Major General St. Clair, of the 8th of May, 1792; which, having been presented to the House in the last moments of the session, was ordered to be printed, and has since circulated in the public newspapers throughout the United States, containing suggestions, most of them founded upon _ex parte_ investigation, which have been understood in a sense very injurious to my reputation. Learning that the present day was appointed for taking into consideration the above-mentioned report, I have waited with anxious expectation for some act of the House enabling me to attend the progress of the examination upon which they are about to enter, for the purpose of furnishing such information and explanations as might conduce to a right understanding of facts, in which I am so materially implicated. The failure of a proposition, which I am informed was made to the House with that view, has added to my solicitude and regret. Thus situated, I feel myself called upon to ask of the justice of the House that some mode may be devised, by which it will be put into my power to be present during the course of the intended inquiry, as well to hear the evidence on which the several allegations contained in the report are founded, as to offer the information and explanations to which I have alluded. To this step I am impelled by a persuasion that an accurate and satisfactory investigation cannot otherwise be had with equal advantage, if at all. And my entire reliance upon the equity and impartiality of the House, will not permit a doubt to exist on my part that such an investigation will be exclusively the object of their desire and pursuit. I have the honor to be, sir, with the highest respect, your most obedient humble servant, H. KNOX. _The_ SPEAKER _of the honorable the House of Representatives of the U. S._ _Defeat of General St. Clair._ And then the order of the day, that the House do resolve itself into a Committee of the whole House on the report of the committee appointed to inquire into the causes of the failure of the expedition under Major General St. Clair, being taken up-- Mr. MADISON suggested that the most simple, most practicable and consistent plan would be, to recommit the report of the select committee, and refer the present applications[44] to the committee to whom the report shall be recommitted. He therefore moved that the Committee of the Whole should be discharged from considering the reports on the causes of the failure of the late expedition. Mr. SMITH (S. C.) observed that several objections struck him in opposition to this motion. The House must at some period, said he, meet this case; if it is recommitted, there will be an impropriety in referring it to the same committee; if a new committee is appointed, they must begin the whole subject _de novo_; and, if their investigation should take up such a length of time as that of the former committee, the session will be expended, and at the close of it the business will recur on the House, and the same discussion will occur again that is now proposed. He hoped the House would therefore proceed in the consideration of the report, assign two or three days in the week for the purpose, and continue the investigation till the whole is finished. Mr. GILES replied, that he had no doubt that the vouchers on which the committee had founded the report would appear sufficient to justify the decisions that they had made. He said that he did not suppose that the applicants would adduce any new information; one of them had been called on, he attended the committee, and he supposed that he had furnished all the information he was in possession of. He objected to a recommitment; as one of the committee, he was perfectly satisfied with the report; nor did he conceive there was any additional evidence to be produced, except it was of a recent date. Mr. AMES said, he perceived such a disinclination to go into the subject as indicated a proper temper of mind in relation to the persons supposed to be in any ways interested in the ultimate decision of the House. He was opposed to a recommitment, as it would procrastinate instead of expediting the inquiry. He adverted to the report. Facts are stated; the public have been left to draw the inferences; the committee have not explicitly criminated any body; but they have determined, in several instances, who is not to blame. What is the situation of those who are implicated in the causes of the failure? Every citizen knows that, in consequence of the issue of the expedition, clamors against the War Department, in respect to Indian affairs, have rung through the Continent. Should public officers, who have been placed in situations of such importance, be silent, and submit calmly to such imputations, they would be unworthy of public confidence, unworthy to breathe the vital air. They now apply for an opportunity to be heard in their own vindication. Shall they be sent to a committee-room, and make their defence against the allegations brought forward to their disadvantage, which have been published to the world, in the hearing of perhaps ten or a dozen persons only? He hoped not--he thought justice to them and to the public required that they should be allowed to make their defence in the face of the world. Will not precluding them look like a wish to smother all further inquiry into the matter? Mr. BALDWIN was in favor of recommitting; he said it was the most eligible mode, and was consonant to the practice of the House. Mr. MADISON remarked that it had been said a disposition was discovered to smother inquiry. In reply he observed that, if he wished to prevent a thorough investigation, he should be in favor of the whole subject being undertaken by the House; because, he observed, that if a select committee of a few members took seven weeks to form an incomplete report, it must appear evident that so large a body as this House could never get through the matter. He further observed, that the same reason existed for referring the residue of the evidence to a select committee as induced the measure in the first instance. Mr. FITZSIMONS said he was at first in favor of a recommitment, but on further consideration he was convinced the House would be able to get through the subject in a shorter time than a select committee. He added several other reasons which induced him to be in favor of the House proceeding with the report. Mr. GERRY said it appeared to him that the only question seemed to be, whether the House or the select committee shall establish the facts. If these facts are established by the committee, would it give equal satisfaction as if they were established by the House? He conceived it would not; but, should the result be a conviction on the part of the House that some of the officers are culpable, will the House rest an impeachment on the report of the committee? He conceived the House ought to found their decisions on facts ascertained by themselves. It has been said there is no difference between the House and the committee. If this is the case, does it not imply a censure by the House on certain characters? He thought it did. It therefore becomes the House to discuss the report, that it may be determined on what footing it stands. If, in the case of a contested election, the House revolted from the idea of submitting their judgment to facts substantiated by a committee, the case before us is of unspeakably greater magnitude. For these, and several other reasons, he hoped the report would not be recommitted. Mr. WILLIAMSON was in favor of the motion for recommitting; he supported his opinion by the uniform practice of the House, which in every case where new evidence was adduced, always provided that the new evidence should be examined by the same committee, who had originally brought in the report. He said if this mode was departed from, we should find no committee would bring forward a state of facts in future. He thought it was not treating the committee with proper candor to decide on their report in its present situation. Mr. SYLVESTER observed, that the resolution of the House at the close of the last session, that they would take up the subject early in the present session, precluded a recommitment; he was therefore opposed to the motion. Mr. BOUDINOT was in favor of a recommitment; he said, if there is new evidence to be brought, the House ought to wait till that is received and reported at the Clerk's table; and this he conceived ought to be done in the usual way, by a select committee; till the whole testimony is completed it appeared to him the House was not prepared to take one step in the matter. Mr. MADISON replied to Mr. GERRY's allusion to the ease of the contested election. He inquired of him whether the House itself went into an investigation of facts in the first instance? He believed he would not say they did. With respect to the memorials, he inquired, whether, if they had been presented at the time of the investigation of the subject by the select committee, they would not have been referred to the committee? If they would then have been referred, the same reason exists for referring them to a select committee at the present time. Mr. LAURANCE was of opinion that a recommitment would tend to a saving of time; the committee will not be obliged to go over the same ground again that has already been explored; all they will be obliged to do is, to investigate the new testimony which will be adduced. He hoped, therefore, that the motion would prevail. Mr. GILES said, that the proceedings of the committee were public, and that the Secretaries could have attended all the time, had they seen proper. They attended but once, and then appeared extremely anxious to get away to attend to their offices. The committee would have been extremely glad to have had those gentlemen present oftener, and to receive all the information they could give, and supposed they had done it. Mr. GERRY replied to Mr. MADISON. He said, if gentlemen would recur to the proceedings of the House on the contested election, they will find that the House expressly reserved to itself the right of substantiating the facts, which should appear from an examination of the depositions, taken in conformity to the resolutions of the House; and here he adverted to the mode pointed out by the House in taking those depositions. The adverse party was to be summoned to attend to the taking them; but in this report it appears that _ex parte_ evidence has been admitted as the foundation on which some of the decisions have been made. Mr. MURRAY supported the motion for a recommitment. He observed that the matter, in its present state, was so incomplete that he could not see how the House could proceed upon it. One part of the evidence only is finished, and the report is made on that evidence. Now, we are told new testimony is offered; let the whole be brought into view at once, and then the House will be in a situation to judge. Mr. PAGE was in favor of a further commitment of the subject; but whether to the committee who made the report, or to a new committee, he should not take upon him to say. With respect to the admission of any head of a department to the bar of this House, except in case of an impeachment, he would never consent to it. It would be a precedent of a most dangerous nature, tending to a destruction of all freedom of inquiry by committees. Mr. FINDLAY observed, that the committee wished that Mr. Hodgdon should have been present, but he did not make his appearance; the committee therefore proceeded on the testimony they had, and as there is now new evidence brought forward, he thought it was proper that the report should be recommitted. As one of the committee, he should have no objections to such alterations as might appear proper on further and more complete investigation of the matter. Mr. STEELE called for the reading of a clause in the memorial of the Secretary of War, which states that the committee had drawn conclusions from _ex parte_ evidence. This being read, Mr. STEELE remarked on the want of candor towards the committee, which had been shown by some of the members in the course of their observations. He then adverted to the above clause respecting _ex parte_ evidence, and observed that, with respect to the Secretary of War, it was not true that the committee had proceeded on _ex parte_ evidence; that officer, said he, was notified of the meetings of the committee; he attended those meetings; he furnished the committee with papers and documents, &c.; and further, he was requested to detain officers in town whose testimony was necessary in the matter, and that he complained of some of those officers being detained by the delays of the committee from the recruiting service. With respect to Mr. Hodgdon the same cannot be said, as he was not then in the country. Mr. STEELE then concluded by some additional remarks on the indelicacy manifested by some gentlemen in their treatment of the committee, and observed that he did not apply it to himself personally, but as it respected the committee at large, he thought proper to express the contempt which he conceived it merited. Mr. DAYTON replied to Mr. STEELE. He repeated the substance of his original remarks on the report, and added, that in the course of the discussion he should attempt to show that the deductions made in several parts of the report were false. Mr. D. added, that whatever the gentleman last speaking might say, as one of the committee who signed the report, he was certainly implicated in whatever censure it merited. The question for a recommitment was then agreed to, 30 to 22. And it was accordingly _Resolved_, That the Committee of the whole House, to whom was committed the report of the committee appointed to inquire into the causes of the failure of the expedition under Major General St. Clair, be discharged from the consideration thereof; and that the said report, together with the documents relating thereto, including the letter of the Secretary of War, and the memorial of Samuel Hodgdon, be recommitted to Mr. FITZSIMONS, Mr. GILES, Mr. STEELE, Mr. CLARK, and Mr. FINDLAY. THURSDAY, November 15. Another member, to wit, THEODORE SEDGWICK, from Massachusetts, appeared, and took his seat in the House. MONDAY, November 19. Another member, to wit: JOHN FRANCIS MERCER, from Maryland, appeared, and took his seat in the House. _Protection to American Commerce._ Mr. WILLIAMSON moved that a committee be appointed to prepare and bring in a bill or bills for promoting commerce, by the increase of American seamen. In moving the above, Mr. W. addressed the House as follows: Measures have already been taken by Congress for increasing the number of our shipping; but no effectual and _general_ measure has been adopted for increasing the number of native American seamen. Every gentleman in my hearing knows that there are always a considerable number of foreigners employed on board American vessels; but none of us could have expected, and some of us may not have heard of the injury and insults to which our commerce has been exposed, from having British seamen on board our ships. A schooner called the David and George, belonging to Portsmouth, in Virginia, and commanded by Captain Goffigan, lately touched at Sierra Leone, on the coast of Africa; she was navigated by eleven persons. Three of that number who had been on shore, informed Captain Wickham who commanded an armed vessel, that they were British subjects. Captain Wickham went on board the American vessel and claimed the three seamen; he also claimed wages for them. Captain Goffigan refused to deliver the men, and declared with truth that nothing was due them. Captain Wickham took the men by force, and by the same regulation he went into the hold, and took as much of the cargo as he thought fit, under the cover of substitute for wages. Captain Goffigan complained of this violence and robbery to Mr. Clarkson, who is Governor of the Province. The Governor replied, that he should have done the same thing, and that _he had orders from his superiors_ so to act in such cases. The ship Illustrious President, belonging to Virginia, commanded by Captain Butler, touched some time ago at Madeira, on her passage to the East Indies. The British frigate Hyena, commanded by Captain Hargood, lay at that time in the road. Seven of Captain Butler's sailors being British subjects, Captain Hargood sent to take them by force from on board the American ship, and he would have done so, had not the Governor of the Island, remembering what he owed to the honor of his nation and to every ship under his protection, interrupted his authority. The ship Fame belonging to Philadelphia, commanded by Walter Sims, on her way to the East Indies, lately touched at Table Bay, at the Cape of Good Hope. Captain Blith, who commanded a ship of twenty guns, then lay in the road. One of Captain Sims' sailors, a native of Scotland, offered his service to Captain Blith, calling himself a British subject. That very man in Philadelphia had taken the oath of allegiance to the United States; but the British claim was best, for Captain Blith's ship was strongest. He took the man, sent an officer on board the American ship, who took the liberty of opening the after hatch, searching the hold and looking out a chest and clothes. Captain Blith justified these acts of violence, by saying, that he had _printed instructions_ to take all who called themselves British subjects. These are a few out of the numberless cases in which our ships have been robbed of their seamen, and they are samples of the manner in which we shall be constantly treated, while we depend on foreigners to navigate our ships. If these cases had terminated in threats and abusive language, to which our flag is too much accustomed, it might have been questioned whether the nation of the offending party was to blame. When you are told by one officer and another, that he is instructed to distress our trade, we should, if possible, deprive them of the present excuse. Is it not our business to inquire into the cause of this strange conduct? By a vitiated passion for British goods, we are universally clothed in the manufactures of that nation. Our debts increase every year, and we labor to make her rich, while we are becoming poor. We pour our treasures into her lap more than any other nation under the sun. Observe the rewards! I say nothing about her measures on our Western Frontier; but our trading ships are boarded and plundered at discretion by her ships of war; and yet, Great Britain, whose commerce we cherish, is the only nation that treats us in this manner. Perhaps it is conjectured that Americans are of that species of animals whose favor is increased by rough treatment. Be this as it may, it is our duty to consider of the safest and surest mode of extending our commerce. After we have been told that an American vessel having sailors on board, who chance to have been born in the British dominion, is subject to be deprived of her hands, robbed of her property, and turned adrift without help, it can hardly be necessary to adduce other arguments in favor of native American seamen; but other strong and conclusive arguments in favor of the measure present themselves. The merchants' property in critical situations, or in distant or obscure parts of the world, is always most safe when a ship is navigated by men who uniformly strive to return to their native home, and whose hopes and happiness centre in that country to which their ship belongs. The crew of a French brig some weeks ago, murdered their captain and mate on our coast; that misfortune, in all probability, would not have happened, if the seamen had been natives of France. Two of them only were of that kingdom. Is it necessary to add, that a powerful body of seamen, at some future day, may save us from the vast expense and danger of a standing army? Upon this single argument of native seamen we might rest the question. It needs neither support nor illustration. I shall, therefore, presume, that it is our duty as soon as possible, to provide for the daily operations of pride or injustice, by furnishing the merchant with seamen, of whom he cannot be robbed, except by open declaration of war--with seamen in whom he can trust--with men, who, actuated by those passions which are inseparable from the human breast, the pride of nation and the love of country, may serve him in every part of the world,--to furnish the nation with a safe and strong bulwark against foreign tyranny and invasion. I shall now take the liberty of moving that committees may be appointed to bring in bills for the purposes mentioned. Mr. WILLIAMSON, Mr. LAURANCE, Mr. GOODHUE, Mr. BENJAMIN BOURNE, and Mr. BARNWELL, were appointed to prepare and bring in the same. THURSDAY, November 22. Another member, to wit, JOHN MILLEDGE, returned to serve in this House for the State of Georgia in the room of ANTHONY WAYNE, whose seat was declared vacant, appeared, produced his credentials, and took his seat in the House. WEDNESDAY, November 28. _Warner Mifflin's Petition._ Mr. STEELE called the attention of the House to the memorial and representation of Warner Mifflin on the subject of Negro slavery. Mr. S. said that after what had passed at New York on this subject, he had hoped the House would have heard no more of it; but, to his surprise, he found the subject was started anew, and had been introduced by a fanatic, who, not content with keeping his own conscience, undertook to become the keeper of the consciences of other men, and in a manner which he deemed not very decent, had intruded his opinions into this House. Had an application been made to him to present such a petition, he thought he should have avoided a compliance with it. Gentlemen in the Northern States do not realize the mischievous consequences which have already resulted from measures of this kind, and if a stop were not put to such proceedings, the Southern States would be compelled to apply to the General Government for their interference. He concluded, by moving "that the paper purporting to be a petition from Warner Mifflin, be returned to him by the Clerk of the House; and that the entry of said petition be expunged from the Journal." Mr. AMES rose to explain his motives in presenting the petition. He said it was his opinion, which he had expressed to the House long ago, that this Government could not, with propriety, take any steps in the matter referred to in this petition; but, on the general principle that every citizen has a right to petition the Legislature, and to apply to any member to present his request to the House, he had handed it in. The petitioner is a citizen of Delaware; and had the member from that State been in the House, he should not have thought himself obliged to have introduced it; but that gentleman being absent, the petitioner had a right to apply to a member from any other State. He had no idea of supporting the prayer of the petition, his mind having been long made up on the subject. He considered it as totally inexpedient to interfere with the subject, and had uniformly opposed the applications made at a former session of Congress. Mr. LIVERMORE did not consider the motion in order, the subject not being properly before the House; nor did he believe there was any disposition to bring it forward. Mr. W. SMITH said he had seconded the motion, with a view of putting it out of the power of any member to call it up when persons might be absent who would find it their duty to oppose it. Mr. S. said he admitted, in its full extent, the right of each citizen to petition for a redress of grievances, and the duty of the House to consider such petitions; but the paper in question is a mere rant and rhapsody of a meddling fanatic, interlarded with texts of Scripture, and concluded with no specific prayer. He observed it was the general practice of Legislative bodies for members presenting petitions to read them, in order to make known their objects, and to have them entered on the journal. In this particular instance the practice might be attended with danger. Citizens of the Southern States learning that papers of this kind meet with countenance here would be alarmed. The gentleman who presented this paper had not, on this occasion, shown his usual regard to Southern interests. Had he stated its dangerous object, the House would undoubtedly have refused its reception. After the proceedings at New York, when a similar application was made, his constituents had a right to expect that the subject would never be stirred again. He would assure the House, that while he continued a member of it, he should never fail to express his abhorrence against all such applications, as they could have none but a mischievous tendency. So far from being calculated to meliorate the condition of the race who were the object of them, they had a tendency to alienate their affections from their masters, and by exciting in them a spirit of restlessness, to render greater severity towards them necessary. He therefore earnestly called on the House to agree to the motion, and thereby convince this enthusiast, and others, that they can never meet countenance in the Legislature of the Union. The part of the motion directing the petition to be returned by the Clerk was agreed to. The remainder was withdrawn by Mr. STEELE, the mover. THURSDAY, December 13. ANDREW GREGG, from Pennsylvania, appeared, and took his seat in the House. TUESDAY, December 18. A memorial of the officers, now residing in the State of New York, of the late American Army, in behalf of themselves and their brethren, the soldiers of the said Army, was presented to the House and read, praying that the depreciation which accrued on the certificates of debt granted them in reward for their military services during the late war, may be made good to them, or such other relief afforded them as the present circumstances of the United States will admit. Also, a memorial of the Pennsylvania line of the late Army, to the same effect. _Ordered_, That the said memorials do lie on the table. THURSDAY, December 27. The SPEAKER laid before the House a letter from the Secretary of War, accompanying a statement of the present organization of the troops; also, Returns of the commissioned officers, non-commissioned officers, and privates, in the service of the United States; which were read, and ordered to lie on the table. FRIDAY, December 28. A memorial of the officers and soldiers of the late New Hampshire line of the Continental Army was presented to the House and read, praying that the depreciation which accrued on the certificates of debt granted them in reward for their military services during the late war may be made good to them, or such other relief afforded them as the present circumstances of the United States will admit; which was laid on the table. _Reduction of the Army._ Mr. STEELE called up his resolution laid on the table some days ago, as follows: "_Resolved_, That a committee be appointed to prepare and bring in a bill to reduce the military establishment of the United States to ---- regiments or corps, consisting each of ---- non-commissioned officers, privates and musicians, with such proportion of commissioned officers as the PRESIDENT may think proper to continue in service; and to repeal so much of an act, passed the fifth of March, one thousand seven hundred and ninety-two, entitled 'An act for making farther and more effectual provision for the protection of the frontiers of the United States,' as may contravene this intention.'" Mr. STEELE, in proposing the above resolution, said, the situation of the frontiers, and the inefficiency of the measures adopted through the medium of the War Department, to relieve them; the extreme burdens which those measures were heaping on the people, and the probability of their continuance, afforded ample scope for inquiry; and to sit silent on such an occasion, he thought, would be to partake of and support the errors from which those misfortunes may have arisen. The citizens of the United States, he said, were of a peaceable and patient disposition, and they have with cheerfulness acquiesced in the measures of the National Legislature; but they were not become so tame as to submit to immense and fruitless expenses, and the disgrace of their military character, to answer any vain projects of folly and ambition, without a prospect of guaranteeing a peace. Is it not evident, said he, that plans have been persevered in without regard to common sense, by an unnecessary increase of our army, until the indignation of the whole continent has been roused up against it? To elucidate this position, Mr. S. recited the expenses, charges, and increase of the War Department from its first establishment under the present Government, to its present enormous demands, which for the year 1793, are no less, agreeably to the estimate furnished by the Secretary of the Treasury, than $1,171,719;[45] more than double the sum necessary for the support of all the other branches of the National Government. The better to illustrate this subject of the Indian war, he entered into comparative statements of the years 1790, '91, '92, and '93; and, animadverting on the different items of calculation, he asserted, in strong terms, that they exceeded every thing that the history of the Indian wars afforded for twenty years back; he wished any gentleman to enter into an investigation and comparison of the alarming increase of the expenses of the department, and to take a retrospect of the subject for twenty years back; and he was certain neither the Secretary of War nor any other person could account rationally for the occasion of such an establishment. There was no precedent to be found in any of the States; not one of them has a War Department; neither was it contemplated in the Constitution of the United States. Yet it has, in the short space of three or four years, been imposing on the country burdens which the people have at length expressed their abhorrence of; it has been increased from $137,000 in 1789, to the extravagant demand now required, of $1,171,719 and $50,000 contingencies for the support of 1793. This is so alarming an increase, that it calls loudly for reformation, or the entire abolition of the department, and that another system shall be adopted for the protection of the frontiers. Armies of regulars will never afford protection; they have never answered any good purpose against the Indians from the time of Braddock's defeat down to that of Major General St. Clair, although this last-mentioned unfortunate expedition cost the United States an immense sum of money, and the lives of a great number of valuable officers and citizens. History and the experience of ages have proved this fact, that unwieldy armies will never be able to fight the savages in the wilderness; indeed, the Secretary of War confesses the fact in one of his reports, which Mr. S. read, wherein the Secretary accounts for the ill success of the plans, by observing, "that it was owing to the extreme activity of the enemy and our ignorance of the wilderness through which our troops had to march." But the Secretary might have also added, our entire ignorance of the mode of carrying on the war. Here Mr. S. took occasion to observe, that this alarmingly expensive and useless department had crept upon the country entirely from our fondness for taking up money on loans; for had it not been that the money was thus obtained with a sort of facility that was not directly felt by the people, they never would have consented to be directly taxed to support the parade of so unnecessary an establishment. This is my reason for being an enemy to loans; they deceive citizens, and lull them for a time, in order to levy double contributions afterwards. But it may be demanded, how are the frontiers to be protected, if the army was disbanded? In reply to this Mr. S. said he wished that the former two regiments might be retained to garrison the forts, and that a militia near the scene of action should be raised, who would be able to make five expeditions against the savages in a year, if necessary, instead of one solitary fruitless attempt, which, upon an average, is as much as a regular army can do; and sometimes not so much, for it does not appear that any expedition took place during the last twelve months: moreover, it is not so easy for the Indians to discover the plans and approaches of militia, as they do the slow motions of an unwieldy army, dragging their heavy artillery through the woods. The fact is, that the Indians have the best intelligence and know every motion of the army, and they can even calculate the time and place to meet them, and the numbers of their tribes that will be necessary to receive such a force; they will always be prepared when a regular army are to march against them. But if the business be left to a militia of the frontier inhabitants, who know the country, and have their property at stake, it would not cost the Government one-fourth part of the expense to give a complete protection, and to repel all the depredations of the savages, if that be our intention. If it be the protection and happiness of our brethren on the frontiers--if we are serious to check the progress of expense, the motion which I have brought forward will be the most effectual means, and to establish a proper Militia System. On this motion, therefore, will depend the question, whether we are to continue a fruitless warfare in the present mode for seven or ten years, or shall we adopt a better system, which will not cost one-fourth of the expense, and which would completely check the Indians; nay, it would entirely exterminate them, if that was thought to be necessary. In order to bring the matter to a point, Mr. S. suggested, that it would be proper to disband all the troops except the two former regiments of two thousand one hundred and twenty-eight men, which would be more than sufficient to garrison all the fourteen posts on the frontier. These, with a militia, under proper regulations, and the officers appointed by the PRESIDENT, would be found a more certain protection. The garrisons are at Fayette, Hamilton, Steuben, Knox, Tammany, Telfair, Harmar, Franklin, Jefferson, St. Clair, Marietta, Massachusetts, Matthews, and Knoxville. Most of these are commanded by captains, except two that are commanded by majors: now, reducing the establishment to two thousand one hundred and eighteen non-commissioned and privates, and average them amongst the garrisons, it will give one hundred and fifty-two men for each; the sum saved by this reduction would be six hundred and twenty-four thousand six hundred and seven dollars--the difference between the appropriations for 1792 and those required for 1793. With regard to the expense that would be incurred from militia expeditions, none of them would cost above thirty thousand dollars; and four or five of those, if made in a year, would have ten times the success and effect that could be expected from the present system. Had the militia plan been adopted, we should not at this day hear such murmurs from our constituents, nor would the people be saddled with heavy taxes and imposts; but, on the contrary, the money that has been actually wasted would have sunk a considerable part of our National Debt. But by the system of warfare lately adopted of dragging heavy cannon and camps into a wilderness, of which we have confessed our ignorance, if it be allowed any longer, our Treasury will be exhausted, and the public revenues which the Secretary of the Treasury reported as affording a prospect of income beyond the permanent wants of Government, will not all together be sufficient for our War Establishment; we must fly to loans, and pursue a system of ruin and distress to the country. Under these impressions, said Mr. S., I have introduced the proposition now before the House; and I entreat gentlemen to think seriously of it, for thereon, in a high degree, will depend the real protection of our frontier, the safety of our garrisons, and the ultimate ease, happiness, and tranquillity of the continent. Mr. HARTLEY, although he did not wish to advocate the continuance of a standing army, yet he was averse to disbanding the troops at present, while it is known that a negotiation for a peace is going forward, and may not perhaps be brought to a decision before the spring. It is a well-known maxim in politics, that a peace can always be easiest obtained by a nation which is prepared for war. He noticed the great prudence and economy of the PRESIDENT in forming the army into a legion; and he differed in opinion with Mr. STEELE respecting the insufficiency of regular troops. No instance could be quoted where regulars had engaged the Indians without beating them. Mr. PARKER said he had always abhorred the idea of keeping up standing armies in this country; and he believed he could from experience demonstrate that it was an unwise measure at the commencement of the present Government; for it answered no better purpose than throwing out a hint to the British and Spanish Governments, on our Northern and Southern frontiers, to increase their forces, and even to administer countenance and support to the Indians, which they never would have thought of doing, but for our vain attempt at military parade. He mentioned a letter which had been written by Lord Dorchester to the Indians, informing them "that Prince Edward had arrived with a number of chosen warriors to protect them," meaning against the United States. Thus, said Mr. P., we have been warring with our finances for the last three years, by keeping up an army in imitation of European plans, which are formed in countries altogether unanalogous to America in every possible view. The consequences have been unsuccessful, and produced military disgraces, by sending into the field a collection of beings, collected from stews and brothels and from the most unprincipled of their species, to fight against Indians well supported on both sides, and fighting, as they do, for their property, their hunting ground, their wives, and children, instead of calling forth the militia, the natural strength of the country. But the present plan has involved us in such difficulties that we are not now able to provide for the payment of our debts, without the medium of loans; nay, we are now called on for a small sum of two hundred thousand dollars at the bank, which would have been easily paid out of the surplus in the Treasury, were it not that our finances have been exhausted by those ill-judged expeditions under General Harmer and General St. Clair. He mentioned the naked, starved appearance of the men who were sent out--with shoes that would not last three days, clothes that did not half cover their miserable bodies from the inclemency of the weather, and food sometimes not fit for dogs. He could mention the particulars, if required, of some other very abominable abuses, but refrained from it at present. He concluded by expressing the same opinion of militia that Mr. S. had done; and, with regard to the starved soldiery who had appeared in the woods, they were despised so much by the Indians, that they called them Coatmen, and shot them down like wild turkeys. Mr. FITZSIMONS was apprehensive that it would be a dangerous experiment, so suddenly to alter the system of defence already adopted. He remarked, that when Mr. STEELE had stated the War Department to have cost the United States three million five hundred and forty thousand dollars, he had committed a great mistake, for there was one million one hundred and seventy-one thousand dollars of that sum not yet granted. [Mr. STEELE explained, that he had gone by the estimates for the appropriations proposed, &c.] Mr. FITZSIMONS did not wish to advocate a standing army; and if any better mode of defence for the frontiers could be digested, he would be amongst the foremost who would agree to it. Mr. WHITE could not entirely approve of the motion for striking out, unless a proper substitute for defence was fairly brought forward. Mr. WILLIAMSON said, it was not disbanding an army of men, but the disbanding an army of paper, that he conceived to be the object of the motion, and it should have his support. He mentioned an affair between ninety militia and two hundred and forty Indians, wherein the militia _received_ them much better than any of the regulars could boast of having done! Mr. SMITH (of South Carolina) reverted to a clause in the law which empowers the PRESIDENT either to raise those three additional regiments, or to forbear to raise them, or discharge them, &c., provided he thought it consistent with the safety of the country. From this Mr. S. said it was evident there was a sort of indelicacy in the motion, as it implies a doubt that the PRESIDENT might fail in this instance, or vary from his usual line of prudence. Mr. DAYTON said, he would vote for referring the motion to a Committee of the Whole, although he disapproved of it. He should not have risen had he not heard from the two North Carolina members the strangest perversion of argument and the most extraordinary reasoning. The gentleman who has brought forward the motion, said Mr. D., has decried every idea of energy and efficacy in regular disciplined troops considering them not only inefficient, but contemptible, when employed against Indians; and, to confirm this assertion, he has instanced the expedition under General St. Clair, when it is well known that there were not, in fact, two companies of regular disciplined infantry among them. The other gentleman (Mr. WILLIAMSON) has extravagantly commended the back-country militia, and extolled them for their efficiency and success in Indian warfare; and instances the affair of a rencontre between Major Adair, with ninety militia, against two hundred and forty Indians. In reply to this, Mr. D. felt himself compelled to remark, that that affair did not appear so successful in his mind; for those very militia were unquestionably surprised and beaten, inasmuch as they were driven into a corner, until the Indians captured all their horses and other property in their camp; and what is still more disgraceful, one half of the Major's party deserted him at the commencement of the action, and secured themselves within their garrison. Whilst he was up, Mr. D. would further observe on the extraordinary speech of the mover of the question, that it was such as no person could have ever expected to hear within the walls of that House. It seemed to be calculated to prejudice the minds of the people against the whole Administration; and it appeared still the more extraordinary that such a speech should come from a gentleman who so lately expressed the nicest delicacy in matters of order and decency; for, in this instance, he has committed the greatest breach of decorum and propriety, by a direct censure of the Secretary of War, the PRESIDENT, and both Houses of the Legislature. [Here several members called Mr. DAYTON to order.] He proceeded, however, and appealed to the House, whether he had not drawn a just picture of the expressions of the gentleman from North Carolina. The very calculations which he has so laboriously produced have been questioned by other members. In regard to the surprise expressed by the gentleman at the increase of the War Department from 1791 to '92 and '93, it was not so strange that five thousand men would require greater supplies than two thousand. Yet the gentleman is surprised at the increase of expense, and seems to imply that abuses have been committed; but if an increase of expense for protecting the frontiers has accrued, the censure ought to fall on the Legislature for directing it by their laws, and not upon the Executive, who are merely the instruments for carrying them into effect. Upon the whole, Mr. D., however he might himself be in favor of a reduction of the army, if it stood simply on its own merits, yet, as it now struck him, it being connected with some recent circumstances, he would therefore oppose it as tending only to embarrass the Executive in their attempts towards a pacification. Moreover, he said he knew the temper of Indians so well, by having lived amongst them, that there was not a nation on earth more extravagant in their demands, when they saw the force against them was lessening. So that what is intended by the motion for reduction at present, as economical, may turn out to be, in the end, the most expensive of any. Mr. WADSWORTH was also against the motion; and Mr. AMES closed the debate by a few observations on the necessity of committing to a Committee of the Whole, as there would be no other way of answering the industrious calculations of the mover. The question on committal was carried, and made the order of the day for next Wednesday. WEDNESDAY, January 2. _Military Establishment._ The House resolved itself into a Committee of the whole House on the motion of the 28th ultimo, for reducing the Military Establishment of the United States. Mr. WADSWORTH rose and observed, that he had pledged himself to the House last Friday to show that the calculations of the gentleman from North Carolina were not true; and, if true, that the inferences drawn from them were not correct. There was a material difference (he said) between the appropriations quoted by the gentleman and those which he would now read to the House. Here he read a statement which he had prepared, from which it would appear that Mr. STEELE had overrated the contingencies, hospitals, quartermasters, forage, cavalry, ordnance, pay, and subsistence, each of them. The total difference between Mr. STEELE's and Mr. WADSWORTH's calculations, from this representation, was $27,080 in the year 1790. In like manner, Mr. W. read his calculations for 1791. On comparing which with those of Mr. STEELE, he said there was a difference in the total of $252,312; and in the total of 1792, he showed a difference of $567,530. He also particularly objected to Mr. STEELE's statements of the ordnance expense for 1793, which had been called $23,000; but that sum, although it comes under the head of ordnance in the estimate, is not altogether appropriated for the purchase of cannon; the whole amount of the expense of cannon, he said, had been very trifling--about $700 or $800. Having proceeded thus far in attempting to controvert the calculations of the gentleman from North Carolina, Mr. W. said, it would indeed have been an alarming thing to the United States, had they been founded in reality. But the gentleman had not confined himself to misstatements--he had gone further; for he had "lamented the necessity of quoting even truths from that office"--the War Office. Here Mr. W. stated that the quotation which Mr. STEELE had made from a report of the Secretary of War had not been correctly quoted. After Mr. W. had thus represented Mr. STEELE's calculations as erroneous, and his quotations as misstated, he said that the House ought to beware of not being led astray by them. He next observed, that the gentleman had laid a great deal of blame of the present hostilities between the United States and the Indians, and the expense attending them, to the War Department. But Mr. W. conceived that there were other causes to be assigned for the Indian war. There had never been a day, from the first settlement of America to the present moment, without our being at war with the Indians, in one place or another. The history of the country, the resolves of the old Congress, every book published by Congress, show this to have been the case. [Here he read some quotations from the resolves of 1784, to show the appropriations for defraying the expenses of Indian wars.] He wished the House to take a retrospect of the subject, from the beginning of those troubles down to the late application for assistance from the National Government by the Governor of Georgia. Although they have three thousand men on the frontier of that State, yet it is not found sufficient, and the Indians have driven them in. Indeed, there has been a time when the town of Savannah has been obliged to keep a guard. It was not his intention to introduce commendations of the officer at the head of the War Department, but he thought it proper to observe, that he is not to be blamed on account of the expenses referred to. He is no more than an instrument acting under the Supreme Executive. It is the PRESIDENT OF THE UNITED STATES who has found it necessary and proper to recommend the establishment of a military force. It is, therefore, not the Secretary's, it is the PRESIDENT's war; and to assert that the Secretary has had any undue influence with the Legislature, would be altogether false; for, on the contrary, his reports have been treated with disrespect in this House. Was not his report at New York ridiculed, and called "preaching," &c., because it was in favor of peace, and spoke with great humanity respecting the hardships often inflicted by the whites on the Indians? Indeed, the Secretary of War has been uniform in his endeavors to bring about a durable peace. This, however desirable an object, has been found hitherto impracticable, and the Indians have lately carried their depredations to so great a length that the PRESIDENT has judged it necessary to repel them by force. They have murdered in cold blood our ambassadors of peace, whilst holding a flag of truce in one hand and reaching the other out in friendship to the Indians. Perhaps they may have been excited to this degree of barbarity by many causes. It is hard to determine which are the greatest aggressors--the settlers on the frontiers or the Indians. The murder of the Moravian Indians, the proclamation of Congress against our own people, all show that the Indians have ground for complaint. Here Mr. W. recapitulated the affairs of the banditti at Fort St. Vincennes; the representations of Judge Innis, of Kentucky, from 1783 to 1790, respecting the people there who could not be restrained from the commission of crimes against the peace of the country. From these causes and the common fatality of the times, our attempts towards peace have proved abortive, and the war has been prolonged, but the Secretary is entirely innocent of promoting it. In regard to the other arguments of the gentleman (Mr. STEELE) respecting the militia, that they would afford either a cheaper or better defence for the frontiers, he had his doubts. Mr. W. now went over the whole history of the frontier wars; a line of posts was once established and garrisoned by militia, yet they could not prevent the Indians from coming within sixty miles of Winchester, and murdering, scalping and plundering the women and children. After the peace of 1762, the Indians drove in the militia, and advanced as far as Cumberland and Carlisle, in the State of Pennsylvania. But Colonel Boquet, with the remains of two regiments of regular troops, who had just before arrived from the West Indies, marched against the savages, and hired pack-horses to carry some of his sick men. With these regulars, Colonel Boquet fought them and drove them with the bayonet from one end of the country to the other. The battle began at one o'clock the first day and lasted until night, and was renewed the next morning with superior force by the Indians; yet they were entirely discomfited. This news went to Fort Pitt and Virginia, and revived the spirits of the country. Virginia raised more troops--and Colonel Boquet dictated a peace to the savages. These instances furnished sufficient arguments to show the superiority of regular troops over militia. But he could mention many others, viz: General Hartman, with eight hundred chosen men, giving a total defeat to the Indians; Colonel Willet's attack and defeat of them; and General Sullivan's affair in South Carolina. As to the defeat of Harmer and St. Clair, their men ought not to be reckoned regular troops. They were raw recruits, undisciplined, &c. But even they stood better than the militia; for the militia ran away, and those who remained to fight the savages fell, to their honor be it spoken, whilst the militia, who were the advanced guard, ran and threw away their guns, nay, their coats. Upon the whole, the balance of argument, Mr. W. thought, must appear in favor of regular troops. He further took occasion to animadvert on what Mr. WILLIAMSON had said, when that gentleman expressed himself so strongly in favor of the militia under Major Adair. That officer, Mr. W. observed, had been a Continental officer, and from his own words, it appeared that he had no very great opinion of the militia, for they had fled to the garrison; and the Indians obtained their ends, notwithstanding the _reception_ given by Major Adair. Theirs was the triumph, and when they retired, it seems to have been not so much a matter of necessity, as a thing of choice, on their part. The loss of horses, one hundred, perhaps, and the expense of this affair, amounted to a much greater sum than any regular troops would have cost. The party under Major Adair, supposing it to consist of a hundred men, cost one hundred dollars a day, reckoning the attendant circumstances--and considering it, as Mr. W. did, a complete defeat--for there are no circumstances to prove that it was otherwise--the militia having deserted him and left the few regulars he had exposed to the whole of the danger. Mr. W. did not stop here in his details of military disgraces--he recounted many other cases. He mentioned the Grant's expedition against the Cherokees, &c. And still he drew a balance against the successes of the militia; for, he said, they had constantly been defeated, and the country left exposed to the depredations of the enemy. Much has been said, observed Mr. W., of Clark and Sevier's successes. They, indeed, afford an exception to the cases above mentioned; but how far were they successful? The immense expense of men and money, and the interruption given to the agriculture of the country by calling away from their business so many industrious citizens, is a thing beyond the power of calculation; for my part, said he, I do not know figures enough to count it up. For the truth of this position, and for the enormous waste and expense incurred by militia, he appealed to one of the members (Col. PARKER) on the other side of the House, who had experience in the matter, whether it was not absolutely impossible either to bring militia under a proper discipline, or prevent their enormous waste. A whole brigade of regular troops would not cost so much as one regiment of militia to a country. The militia of Kentucky have cost more blood and wealth than all the American war; when the circumstances are considered of calling out men from the tillage of the field, &c. It is enormous the number of lives, and the aggregate loss is countless. The causes of these things are, want of order and discipline, &c. And those causes have produced _a universal reprobation of the war establishment_; but all those who condemn are not well acquainted with those causes; they judge from hearing only one-half of the truth in our newspapers. It is supposed a peace can be easily effected, but I know of no peace that has not been effected by force; for, although promises have been made and peace often treated for with the Indians, yet they have as constantly broken those promises. This is a good reason for keeping up the present force of the United States. We are now able to meet the Indians and demand a safe peace. But the gentleman from North Carolina calls our establishment a mere military parade, which, it is said by another gentleman, (Mr. PARKER,) will only tend to rouse the Spaniards and the British, &c. He went on quoting the conduct of the Indians and their threatening manner, when they told you, "go to your own side of the Ohio," &c. What language do they now hold out? But I am not at liberty, said Mr. W., to mention it, as it was confidentially communicated to this House, and read with our doors shut. However, it is well known to all the members present the insolence of that language. For my part, I have little hopes of a peace from any promises of the Indians; and although a negotiation is said to be upon the carpet, I can never depend upon the promises of savages who have so often broken them. In speaking of the recruits that have been lately raised for the regular army, Mr. W. opposed his opinion to that of Mr. PARKER, who mentioned them in such contemptible terms as having been collected from the stews and brothels of the cities, &c. For his part, Mr. W. had often seen them, and he believed they were equal, if not superior in spirit and appearance, to most of the soldiery during the British war, and better than the soldiery were at the close of the war, with some exceptions, such as respects the men who cost £300 each. Before he could quit the subject, he begged leave to mention another instance of the efficacy of regular troops; it was the affair of General Wayne's surprise, when the light-horse dismounted, and cut the militia to pieces, and the infantry drove them off at the point of the bayonet. He ridiculed the idea of calling out a militia upon every emergency. Where are they to be formed? In Pennsylvania it would be attended with a tenfold loss, if they must quit their daily labor. He would admit that the character of the Kentucky militia had been brave and intrepid; but there was still occasion for a new war, and no ultimate protection afforded to the frontier. The Governor of North Carolina had complained of a friendly Indian being murdered, &c. On the whole, he thought it improper to take militia to fight Indian warriors. He admitted that some abuses might have been practised in the regular army, but they were as little, if not less, than in any other army he could remember. He insisted that the scheme of the Department of War was not a scheme of the Secretary, but a scheme of the United States from the PRESIDENT down to the members of the Legislature, and the meanest of their constituents. He took a retrospect of the great skill of the PRESIDENT after Braddock's defeat. The PRESIDENT must be the best judge of the disposition of Indians, and the best way of treating with them; he approves the scheme of the present war, and shall we imprudently attempt to change his plan, by sending out a few men to be knocked on the head by the Indians, as those _coat_ men were? so called by the gentleman from Virginia, (Mr. PARKER,) but instead of coat men, he, Mr. W. thought they might also have been called petty-coat men, &c. He finished his observations by again remarking, that the calculations of the gentleman (Mr. STEELE) who had introduced the motion for reducing the present war establishments were founded in error and ought not to have any weight with the House. Mr. STEELE.--When the House have deliberated upon the merits of the gentleman's arguments, and the truth of my statements; and when they have decided the question, I will submit to their decision; but, in the mean time, I insist that my calculations are founded on the reports of the Secretary and the public printed documents on the table, of the appropriations and laws, &c. I wish the gentleman (Mr. WADSWORTH) had told us where he has found those papers, from which he attempts to controvert such authentic documents as I have quoted. I wish he had made the House understand them; for my part they appear unintelligible. Mr. WADSWORTH said it was from the laws. Mr. STEELE explained some things in his former statements; and in reply to some suggestions that might be thrown out with respect to his indelicate mode of attacking the Secretary of War, or the PRESIDENT, he defied any member to show that he had acted beyond the line of his duty, or that he had ever shown any disrespect towards the PRESIDENT. On the contrary, he was of opinion that that gentleman's character would for ever be secured against all the possible attacks of ingratitude or malice, &c. He also used some other very handsome expressions on this occasion. But whilst he was ready to declare these things, and to prove that he had no personal intentions of injuring the Secretary of War, yet, he would not suffer himself to be deprived of his privilege, whilst he had the honor of a seat in that House; and, in the present instance, he thought it his duty to hold up his opposition against the rapid increase of expenses in all the Departments of Government, which he said were grown to an enormous burden upon the people, and unwarranted by the constitution; that they therefore ought to be immediately checked. He hoped, for the future, gentlemen would confine their arguments to measures, and not apply them to persons. He sat down, for the present, with this proviso: that he would reserve to himself the right of answering to what might be advanced against his proposition, which he could prove to be salutary; and that the present system is fundamentally wrong. Mr. HARTLEY was against adopting the motion under the present circumstances of the country, and he entered into a particular investigation of the merits of the question. When the last law for the more effectual protection of the frontiers passed, the subject now under consideration was very fully and ably discussed, and the gentlemen who were averse to the augmentation, had several alterations made to satisfy them. Instead of the PRESIDENT's being obliged to raise the whole of the three regiments, he was to exercise his discretion either to make the augmentation complete, or raise a part, and he had authority to disband them after being raised. The 12th section of that law is thus expressed: "It shall be lawful for the PRESIDENT OF THE UNITED STATES to forbear to raise, or to disband after they shall be raised, the whole or any part of the said three additional regiments, in case events shall in his judgment render his so doing consistent with the public safety." We should therefore consider whether circumstances have so materially changed since that time as to render it proper that the Legislature should interfere, repeal the powers given to the PRESIDENT, and discharge the three regiments. This necessarily leads us first to view the situation of our finances, and the state of the frontiers at and immediately before the time of passing the law. The extent of our revenue was not as well known then as at present, and every good man deprecated the misfortune which obliged him to increase the taxes. The war was a disagreeable one, but necessary, if peace could not otherwise be obtained. The Legislature considered the expense, and were of opinion that we had means and abilities to defray the same. Many murders and ravages had been committed by the savages on the frontiers. One army had suffered in the year 1790, and nearly a whole army cut off on the 4th of November, 1791. And we had every reason to suppose that the Indians would act in great force against us. Our finances are still respectable. It is true, I should be happy if we could apply the money towards discharging the national debt already contracted, but the unfortunate situation of our frontiers prevent it. War, though an evil, may (from the present disposition of the world) be sometimes necessary, when nations are unreasonable and justice cannot be otherwise obtained. Hostilities have lately been committed on our troops commanded by Major Adair, and several of the Southern tribes show themselves inimical, and we have no absolute assurances that we shall have peace in the spring. The agreement by some tribes to a suspension of hostilities, was only convenient to them as it protected their families for the winter. The great object of the additional armament was to obtain peace: this is not yet effected. May we promise ourselves more success in negotiation by laying down our arms, or by retaining them? History is in favor of the latter. Indeed, I hold it as a maxim, that the nation which is prepared for war can most easily obtain peace. For my own part, I can discover no existing causes for altering the system established by the act to which I have before referred. The expense has been made a very serious objection. It ought to have weight; but where measures have been proper, America has not regarded it. She has freely expended her treasure to support her rights. We are bound in justice and honor to protect our fellow-citizens on the frontiers; we demand from them an excise. They require from the General Government protection. I am for making peace with all the Indians upon reasonable terms; but any country which has been fairly purchased from the Indians, they should not be permitted to repossess or hold by conquest. If an offensive war be necessary says the gentleman from North Carolina, regular troops are not the most proper to carry it on. They are more expensive, and unfit to meet the savages of the wilderness. As to the expense, I have partly answered before. But if the gentleman is to have five expeditions in one year, I believe he would find that his calculations are not correct: a misfortune to either detachments or party would bear very hard upon the district they came from; the partial loss of regulars would not be equally felt, very few of them having families. I have a high opinion of the backwoods riflemen, but I am confident that we cannot certainly rely upon their turning out as often as they might be wanted; we could not rely on such uncertainty; and yet this is offered as a favorite project. If you cannot rely upon them, you may say that the ordinary militia can be drafted. You would find them unfit for such a service; they would in general be composed of substitutes, inexperienced and undisciplined, and it would be unfair to take them all from the frontiers, and some of the States, or at least one, have no militia laws. I am for retaining the regular troops. The PRESIDENT has practised economy in organizing the troops voted for, and I am told they have made considerable progress in discipline; they are formed into legionary corps, composed of horse, riflemen, light-infantry, and battalion-men. The three former will be fit for active service in the field, the latter for the common duties in the camp or garrison. I will allow volunteers and militia their full credit; but I do not think the regular troops merit the disparagement attempted. Volunteer corps have not been free from misfortunes. Colonel Crawford, at the head of five hundred volunteers from Virginia and Pennsylvania, was defeated in the Western country, and he was burnt at the stake. General Braddock, it is said, was obstinate, and his European troops were undisciplined for such a service. The army under General St. Clair was lost, because the men were undisciplined and unfitted for that service. I can mention several instances where regular troops have successfully penetrated the Indian country, among warlike tribes, with success: Colonel Montgomery, into the Cherokees; Colonel Armstrong to the Kittaning; Colonel Boquet's campaign of 1763, and 1764. Three detachments of the American army, in the year 1778, (one under the command of General Broadhead, one under Lieutenant Colonel Butler, and the last commanded by your humble servant,) penetrated the country possessed by the Six Nations. Neither of the detachments was large, and the last had to contend against superior numbers. In General Sullivan's campaign, the year following, his vanguard beat an equal, if not a superior number of Indians. I might mention the Roman legions; they almost constantly were successful against those they called Barbarians, until their enemies adopted the Roman discipline. I have a high opinion of the personal bravery and prowess of an Indian, but I do deny that they can act to the best advantage in large bodies. They have not an experience of that kind; disciplined troops would have the advantage. I reprobate the idea of a standing army, which might endanger the liberty of this country; but I consider the troops contemplated in the act of Congress to be absolutely necessary, until peace shall be obtained, and therefore shall vote against a reduction. Every step has been taken, and I dare say will be taken, by the PRESIDENT, to procure a peace without bloodshed. Our messengers of peace have, in some places, been murdered, and yet he has sent messengers to others. Mr. CLARK.--One would suppose from the style of the debate, that we were going to abandon the frontiers, the safety of the country, &c., and to disband the whole of the army: for, the arguments of those gentlemen who are opposed to the motion seem to be calculated to mislead the House in that way, and to prove that the question under consideration is for reducing the whole of the troops now existing. But this is so far from being the true state of the matter, that it is not even contemplated to disband a single man of them; it only goes to the prevention of raising any more troops, which perhaps would be the safest policy under the present circumstances and temper of the United States. There are about three thousand three hundred effective men already raised, who are sufficient to garrison the forts on the frontier, agreeably to the gentleman's statement who introduced the motion; and, indeed, it seems as if they were fully competent, if we believe the report that the whole of the Indian force, at the time of meeting General St. Clair, and when they exerted themselves to the utmost, was but one thousand two hundred warriors. Mr. C. made some further remarks on the sentiments which had been expressed by the gentleman last up; and, in speaking of the discretionary powers vested in the PRESIDENT, he was of opinion that the situation of the Chief Magistrate in this respect was extremely delicate: for, supposing he might be inclined to stop the recruiting service, and reduce the war establishment; and supposing the frontiers to be again harassed, it might be charged to him for not having kept up the legal complement of men. Under this impression, Mr. C. wished that some way could be adopted of conveying to the PRESIDENT the sentiments of the Legislature on this subject, without the tedious form of a law. Mr. PARKER.--The gentleman from Pennsylvania (Mr. HARTLEY) has been reading a section of the law, to inform us of the discretionary powers vested in the PRESIDENT, which we have heard from other members before he rose, and which we all knew as well as himself. I am sorry to hear gentlemen, when they have no other resource of argument left, so often resorting to the name of the PRESIDENT, to carry their measures; and yet, in the present instance, I much doubt whether those sentiments are avowed by the PRESIDENT, which have been laid to his charge in the course of this debate: however, if they were really so, this is not a sufficient reason to silence me, or to prevent me from delivering my own sentiments, and those of my constituents who sent me here to do so. He vindicated the character of the militia, in opposition to the disgraceful picture which Mr. WADSWORTH had painted of this respectable class of citizens, whom he (Mr. P.) insisted were always more spirited soldiery, and fitter for fighting the Indians than the regulars, although they did not always move at the sound of a trumpet or beat of a drum, which were necessary to rouse the attention of heart-broken, mercenary troops, who seldom act but from force, or fear of the whipping-post. Militia were not so well acquainted with military show, or the display of columns; neither did the PRESIDENT OF THE UNITED STATES, when acting Major of a regiment little better than militia, find that the doctrine of tactics was of any great service to him. Mr. P. further mentioned, that the forerunners of General Burgoyne's army were taken by General Stark's militia near Bennington; and the capture of the whole of Burgoyne's army was chiefly brought about by militia, as General Lincoln had very few regular troops at the time of his surrender. In short, the militia bore a conspicuous share of almost every engagement during the war. At Trenton, the men who took the Hessians were little other than militia, as they had been raised but a short time before. Mr. P. could vouch for them, as he was a witness of their activity and bravery. Another instance offered of their success at Charleston, after it was taken by the British and the regulars drove off; the militia kept possession of the country and supported themselves. He also remembered having been called away from the regular army in the North to take the command of some militia in Virginia, who supported themselves for twelve months without either pay or provisions from the United States; and yet they were never once defeated or disgraced, neither did they leave the country unprotected and exposed; and all they received for their services was certificates which necessity obliged them to alienate at three shillings in the pound to persons who are now in possession of them drawing an annual interest of nearly as much, and who never perhaps had a good wish toward the Revolution. He next quoted the militia under Colonel Mercer, at Yorktown, who were successful in a skirmish with the enemy under Tarleton. These and several other arguments in favor of the militia, whom he still maintained to be the best security of a country, were used by Mr. P. He would not advocate the raising them from all parts of the United States, but only in such places as the safety of the frontiers required it most: they were not, to be sure, accustomed to the display of the column, &c., but they knew how to take the Indians in a proper way through the woods. It gave him pain to hear the character of the militia so much traduced, and it also was a painful reflection to think of the two disgraceful defeats of our armies under Generals Harmar and St. Clair; indeed, it would have a strange appearance to the world, to think that this country is inhabited by the same men who lived in 1776. He repeated what he had before asserted, that most of the present regulars were collected from the stews and brothels of the cities, and had none of the spirit or principles of the honest yeomanry, who composed the militia during former wars, when every man turned out impressed with a good cause. It was not, he said, his desire to criminate any individual in office, although he would maintain his right of expressing his opinion on that floor, so long as he held a seat in the House. But with regard to myself, said he, I am not disposed to pour incense into any man's cup; I respect the PRESIDENT as much as any man, and think him incapable of doing wrong, at least on those principles that foreign despots are supposed to do no wrong, because the people are their subjects, and dare not to say their sovereigns do wrong, and dare not contradict this tyrannic maxim. If the House, or if the PRESIDENT, have committed an error, they ought to correct it; for my part, I conceived the whole of the plan wrong from the beginning. From the present appearances, he was convinced we should get no peace with the Indians, unless it were dictated by the British agents in Canada; for it was clear, as long as they can do us the injustice to withhold territory from us, we can have little reason to expect their aid or friendship in bringing about a peace which is so desirable. He hoped to live to see the day that America will be able to show herself superior to her enemies, and chastise them: at present, it would be improper to engage in any war, if it could be avoided. In addition to the foregoing reasons offered by Mr. P. for being opposed to a war establishment, he also remarked, that it was from a desire to see the public debt redeemed without resorting to new _taxes_; for if _they_ once should get fixed _there_, (pointing up to the Senate Chamber,) we should never be able to withdraw them, whether they were necessary or not. He concluded by a hearty wish that the motion made by his friend from North Carolina might succeed. Mr. BOUDINOT was against the motion, as he thought any immediate alteration of the present system would be attended with dangerous consequences, under the present circumstances of the United States. He did not think it would be justifiable to alter it. It would show an instability in our public measures, especially at this moment, when we have done every thing to bring about a peace with the hostile Indians: and, when it is just advancing to the season for effecting it--when it is at the eve of completion--shall we rashly counteract the whole? and after having brought the enemy, who were so much elated on account of their recent success, to a proper sense of our power and force to impose an honorable peace, would it not be extremely imprudent to lessen our own consequence before we have accomplished the object? The Indians would, in this case, most indubitably raise their demands in proportion to what they supposed to be our weakness. Mr. B. added several other observations. Mr. WILLIS had always been strongly impressed with a dislike for standing armies; but when he considered the situation of the frontiers, and particularly of the State of Georgia, he must give his vote against the motion. Neither did he think two regiments by any means a sufficient force, even to garrison the posts. On motion, the committee rose and reported progress. The SPEAKER laid before the House a letter from the Secretary of State, enclosing a list of the several persons employed in his office, with the salary allowed to each, pursuant to the resolution of this House of the thirty-first ultimo; which was read, and ordered to lie on the table. The House resolved itself into a Committee of the whole House on the bill making compensation to the widows and orphans of certain persons who were killed by Indians, under the sanction of flags of truce, and, after some time spent therein, the committee rose and reported progress. THURSDAY, January 3. Mr. WILLIAM SMITH, from the committee appointed, presented a bill to regulate the claims to Invalid Pensions: which was received, and read twice, and committed. The House again resolved itself into a Committee of the Whole on the bill to make compensation to the widows and orphans of certain persons who were killed by Indians, under the sanction of flags of truce; and, after some time spent therein, the Chairman reported that the committee had again had the said bill under consideration, and made several amendments thereto. _Ordered_, That the said bill, with the amendments, do lie on the table. The SPEAKER laid before the House a letter from the Secretary of War, enclosing a list of the persons employed in the several offices of his Department, with the salary allowed to each, pursuant to the resolution of this House, of the 31st ultimo; which were read, and ordered to lie on the table. _Military Establishment._ The order of the day being called for, the House went into Committee of the Whole, (Mr. _White_ in the chair,) on Mr. STEELE's motion for reducing part of the present military establishment of the United States. In reply to the speech made yesterday by Mr. WADSWORTH, and which had been expressed in such strong language, Mr. STEELE thought it necessary to make a few observations, as a preliminary, before the House went further into the debate. The gentleman from Connecticut had disputed the calculations which he, Mr. S., had produced. Perhaps the gentleman's calculations may be right, and perhaps both of our statements may be so; but with respect to those which I produced, if the acts of Congress are false, if the reports and estimates of the Heads of Departments on your table, Mr. SPEAKER, are false, then my statements are wrong, or "untrue" as the gentleman expressed it, and for which, I hope, on more cool reflection, he will not adhere to. Mr. S. then read the acts of Congress of the 29th of September, 1789, 26th of March, 1790, and 12th of August, same year; the 11th of February, 1791, and 23d December, 1792, &c., from which he clearly proved that every item of his calculations was exactly quoted. He knew of no surplusage unexpended at the War Department, but $140,000 as reported by the Secretary of the Treasury; if any gentlemen in the House knew of any other, he hoped they would mention them. For his part, he thought the estimate for 1793 showed very little savings any where from the grants of the preceding year, but it contained demands for new grants much larger than for any former year. This, however, was a subject he did not at present mean to say much on, until he should hear the sentiments of other members. He therefore sat down with a reservation, that he would take the liberty of replying to such arguments as might be adduced against his proposition. Mr. WADSWORTH disavowed any intention of being indelicate in his expressions yesterday, toward the gentleman from North Carolina; and if he had, in the warmth of debate, said any thing to which that gentleman could take offence, it was not meant so, and he was ready to retract it. He could not, however, avoid taking notice, that the gentleman's arguments appeared to him to convey a strong censure on the Executive, and to spread abroad improper impressions. The principal error which he dwelt on, was that of quoting the difference between the appropriations of 1789 and 1790, to be so great as appeared from that gentleman's statement. But the fact is, that the gentleman had overlooked the laws, and instead of quoting the amount of the _two_ appropriations made in 1789, he had only mentioned the amount of _one_, consequently this was giving an improper impression of the real comparative appropriations of those two years; for, when they are taken in the whole, the difference is not so great, nor the increase so much as Mr. STEELE exhibited it, by $27,080. In like manner, the comparative increases of the other years, 1791, 1792, and 1793, have been misstated, and the truth is, that the total increases are not less, but _more_ than the gentleman represented them by the sum of $567,530.72. Mr. CLARK hoped the gentleman last up did not suppose that the House was going to war with the Secretary of War. He sincerely wished that some means should be adopted of conveying the sense of the House to the PRESIDENT, who would thereby be considerably relieved from the delicate situation in which he now stands with regard to the discretionary powers vested in him. Before Mr. C. sat down, he suggested the idea of filling up the blank in Mr. STEELE's motion with the word three, so as to limit the military to three regiments. Mr. MILLEDGE liked the spirit of the motion, in regard to the prevention of standing armies; but he was against its being put in practice at the present time. He differed from the gentleman from New Jersey, and as his motion had not a second he would proceed. He wished the question under consideration to go to a Committee of the Whole, that a fair and open discussion of every point of the important subject might be brought into view. The situation of the State he had the honor to represent, had been mentioned in the course of debate; he therefore felt himself called on to deliver his sentiments; that he was persuaded there was not a member in the House who more ardently wished for peace than himself, or who would go further to promote so desirable an object, as putting an end to a savage war, and an enormous public expense; but he was of opinion that the reduction of the military establishment would not answer either of those purposes; that it well became members to take into consideration such parts of the Union as lay exposed, and then judge the propriety of the intended measure; that it was well known that Georgia was a frontier State, bordered on one side by a nation with whom a just understanding and intercourse still remains to be settled by treaty, and on the other by a warlike tribe of Indians, the most numerous of any on the continent, ten thousand warriors, besides the Cherokee nation of three thousand and five hundred--a State, in proportion to its wealth, and in proportion to what it contributes to the General Government, of the fewest inhabitants, an extent of frontier from the river St. Mary to the northernmost line, full three hundred miles--a country hardly at any period enjoying perfect safety, since the commencement of the Revolution. My constituents said he, adopted the Federal system, from a hope that we should be protected: some of them at this moment, have never been able to return to their habitations, which they left at the commencement of the war; and I am warranted in saying that a part of my constituents are now throughout the State under arms. Let members for a moment place their constituents in the situation of mine, and let me ask them if they would not demand the protecting arm of Government? As yet we have experienced little more than the enforcing a treaty, that has not been complied with on the part of the British, which has reduced some of our first citizens to a state of dependence on those who not long ago were their avowed and open enemies, and a deprivation of our territorial right, for the yielding of which a permanent peace and permanent line were to be established. Of the peace we have experienced no great share, and as for the permanent line, it still remains to be run, and, from well-grounded information, the half-way conduct of the Creeks the other day with Mr. Seagrove, gives very little reason to expect it. Such was the situation of his State. But to the point: he was of opinion that we set out wrong in warring with the Indians at any rate. Unfortunately for us, the event has not answered the design, and we are now reduced to that state that hardly any change can mend. The unaccountable success of the Indians has so elated them with their prowess,--and which likewise has presented views to the English and Spanish they never dreamed of; and the federated situation of the different tribes occasioned him not to hesitate in pronouncing that the several frontier States would be more or less exposed to the cruel ravages of a savage warfare. If the customs of savage tribes did not direct them towards us, they were incessantly excited by the British and Spaniards to amuse us with false pretences of peace, while they were engrossing the advantages of their trade. The aged Indians kept to their hunting, and the young men were gratified in the military exploits with the blood of our fellow-citizens. In this situation the frontier of the United States, a distance of not less than fifteen hundred miles, must be garrisoned. He left it to gentlemen to calculate what force would be required for that purpose, if troops should be employed in no other way. Militia, he said, were for sudden invasion; they were scattered when they returned, and must be protected while at home. The jealousy of the English, and their augmenting their force, surely ought not to occasion the reduction of any part of ours; if any thing, it ought to have a contrary effect. He likewise said that it would be necessary to view the early history of our country, and find what had been the conduct of Spaniards and Indians about the commencement of the present century. The Spaniards, at the same spot where they now are, by their treachery, when they were at peace with the English, at a time when the Carolinians little suspected, when they imagined they were in perfect alliance with the Indians, the Yamasses, Creeks, and Cherokees, those Indians, by their instigation, massacred one hundred and thirty of their inhabitants, and drove the rest into Charleston. The inhabitants of the capital of Georgia are as much exposed as the Carolinians then were; a distance of twenty miles from Savannah, places them in an open, uninhabited country, to the Creek nation, and within that twenty miles, thinly inhabited on account of the nature of their cultivation. What had happened, he said, might happen again: the Spaniards had not changed their policy. If, therefore, we are forewarned, ought we not to be forearmed? That, from their dangerous situation, even on a peace establishment, there ought to be at least five hundred troops on that frontier. If public officers have misapplied the public money, the constitution pointed out a mode to punish them. The Government belongs to the people, the officers are their servants, we are their Representatives, and we ought to do them justice. He conceived it was praiseworthy in any member to afford any aid or information in his power to bring these things to light; that he felt it his duty to make strict inquiry into the expenditure of public money; that he was sent by his constituents to protect their property, and in doing that should vote against the present proposition. Mr. FINDLAY observed that a difference of opinion existed in respect to the motion for reducing the army. The mover was for filling up the blank with _two_ regiments; but Mr. CLARK had proposed _three_, and was against discharging any of those already enlisted. The principle of the motion was what he wished to speak to. Passing by the comparative view, so much alluded to in the course of the debate, of militia and regulars, he struck at once into the heart of the question. The redemption of the public debt, from the savings to be made by the reduction of the army, seemed to be a principal object with some members, but in his opinion, it was no more than a secondary one: the defence of the frontier is of superior concern. The origin of the war goes much farther back than that of the present Government; it arose out of the war with Britain; and it has been ever since changing for the worse, until it has at length assumed a very alarming complexion; for it has united a greater number of tribes than has ever been known, and it has exposed a much greater extent of our frontier. With regard to the mismanagement or abuses, if any there were, it was no place to discuss such subjects by desultory debating in this House, whilst there were other modes open. He did not, however, believe that any material abuses had taken place indeed. This war is not one of the faults chargeable to the Executive, for it might with more justice, perhaps, be said to have had its origin in the ineffectual measures of the Legislature. The first Congress assembled under the present Government found the Union in a state of war; and although one regiment was stationed at Pittsburg, yet the militia were not relieved from actual service. But the lately raised troops may perhaps be found more effectual, as it is said there is an excellent system of discipline established amongst them. With regard to the argument that the Union cannot support so heavy an expense by new taxes, he was of opinion that every consideration ought to give way to the safety and protection of the country. A particular plan is set into operation for accomplishing a peace, and it ought not to be arrested without a trial being made. The ill-defined law authorizing the PRESIDENT to call out the militia, and the levies under General Harmar, did not answer the end intended, for the time of their enlistment had nearly expired ere they had reached their destination; but if General Harmar had carried out two regiments of permanent troops, he could, without the assistance of the militia, have destroyed all the Indian towns and villages that stood in his way, and he would have completed the object of erecting a line of posts which would secure a lasting peace; but from the weakness of the force and the inefficacy of the law, the purpose was arrested at a critical moment, and the vengeance of the Indians roused to the utmost pitch; instead of their fears being alarmed, the next step of raising another regiment was of a piece with the former weak policy; for the encouragement was insufficient, and the miserable two-dollar men who were raised for a six months' service--their fate is too well known, and will be long remembered. They arrived at the wilderness with clothing that lasted only to the time they reached the scene of action, and those who were not cut off by the enemy were left to starve with cold in the most inclement season. The fatal catastrophe of this campaign has only served to elate the Indians, and render them insolent, as appears from their treatment of our messengers under flags of truce. The parsimony on those occasions has been the cause of a double expense. In opposition to this it may be said that those parsimonious plans were recommended by the Executive, and only enacted into laws by the Legislature. This, however, if it were the fact, is no apology for the Legislature, for they have no right to cast their Legislative responsibility upon the Executive Department; nor can they do it without a breach of trust towards their constituents. The members knew that the encouragement of pay and time of enlistments would never answer any good purpose; the want of resources could have been no reason for that parsimony toward the defence of the frontiers, because it is known that we found revenue enough not only to pay the interest of the public debt, and to support the Government, but even to pay the debts of the individual States. The conviction of these mistakes induced Congress at last to make adequate provision, and now an attempt is made to withdraw the means before the end is accomplished. The other branch of the Legislature has prevented us from giving higher wages to encourage the recruiting service; but notwithstanding all this, it appears to go on with considerable success. Here he mentioned something of the confidential communications which he was not now at liberty to explain. The gentleman who says that two regiments are sufficient to garrison the forts, ought to consider that garrisoning those is not the only object in contemplation. If we expect to exist as a nation we must protect the whole frontier, and make it the interest of the Indians to be at peace with us. But do gentlemen consider the consequences of throwing all internal defence and distant expeditions upon the militia? Is it not enough that they already stand as a picket guard to their brethren who live at ease; that they eat their bread in the fear of their lives, and are frequently embittered with the view of mournful incidents; but that we must lay a deliberate plan for increasing the number of their fatherless children and childless parents? To say that those States who have frontiers, ought to be left to protect themselves, is a very anti-Federal sentiment, which he was sorry to hear advanced in that House. Neither is it generous to say we will pay the expense, and let them fight for us. Do gentlemen contemplate to what issue these principles would lead? Do they not observe that the fate of the Government is deeply involved in the decision? Perhaps I may be asked, Did not the States depend chiefly upon their own exertion for the defence of the frontiers under the old Congress? Yes, they did, and were better protected than since that period. But let it be recollected that at the time the States had the command of their own resources, and the laying and executing their own plans, that the Indians were not so formidably combined. But that since the States had not the power of retaliating, nor the means of gratifying with presents; since the Indians have been solemnly told to look away from the little fires of the States, to the great fire of the Union, they have looked upon us as a more formidable and dangerous foe, and made their arrangements accordingly; and European nations, and emissaries among them, have improved upon the circumstance, and excited and aided them in their union and exertions. He made some further remarks on the impolicy of oppressing the militia at Marietta, &c., and asked if it were possible that those unfortunate few could be able to protect the whole frontier against the united force of the Indians? He agreed with those who said that the sense of the people of America was in favor of peace; but the question is come to this. It is not to begin a war that we have raised this army, but to procure a peace, and so soon as this end is attained, the army will be discharged. It is raised to protect, not to oppress, or to aid in governing our citizens. I know, said he, that standing armies have always been sources of oppression and aids of tyranny. Our people may long be governed without such aids; their situation will not admit of abuses from standing armies, nor would the citizens submit to them. He was confident that the army would be discharged by the next Legislature, as soon as a prospect of our affairs will admit it. The present prospects were not of a very flattering nature, and therefore it was good policy to keep up the force at the present crisis; and it would be dangerous to repeal the law under the circumstances. The present Indian war is essentially different from any former one. When Britain and France divided North America betwixt them, if the emissaries of both excited the Indians to war, the power of both afforded protection. When Britain became possessed of the Western posts, and many tribes of Indians commenced a war, the British Government conducted the war, carried it into the Indian country, and by the dread of their arms procured peace; but the Indians were not then supported by other powers. In the present war, the Indians, who at that time knew nothing of us, have combined to make it a common cause; and no superior powers interest themselves in our favor. No: they conceive our interest to be inimical to theirs. But if they did not receive encouragement, protection, and supplies from our superior neighbors, a peace would soon be procured. The gentlemen who support this resolution know well how that matter stands, and they know explanations here are not convenient. He concluded by declaring that he could not vote for the motion. The committee now rose, and had leave to sit again. FRIDAY, January 4. SAMUEL STERRETT, from Maryland, appeared, and took his seat in the House. The House proceeded to consider the amendments reported yesterday by the Committee of the whole House to the bill to make compensation to the widows and orphans of certain persons who were killed by Indians, under the sanction of flags of truce; and the same being read, some were agreed to and others disagreed to. And then the said bill, being further amended at the Clerk's table, was, together with the amendments, ordered to be engrossed and read the third time to-morrow. The SPEAKER laid before the House a letter from the Secretary of the Treasury, enclosing lists of the persons employed in the several offices of his Department, with the salary allowed to each; also, a letter accompanying certain statements relative to foreign loans, which have been made by the United States, under the authority of the President, pursuant to the resolutions of this House of the 24th and 27th ultimo; which were read and ordered to lie on the table. The House resolved itself into a Committee of the whole House on the bill to regulate the claims to Invalid Pensions; and, after some time spent therein, the committee rose and reported progress. SATURDAY, January 5. A petition of the inhabitants of the city of Hudson, in the State of New York, was presented to the House and read, stating the inconveniences under which they labor, from being obliged to register, enter, and clear their vessels at the port of New York, and praying that the said city of Hudson may be made a port of entry. Referred to the Secretary of the Treasury, with instruction to examine the same, and report his opinion thereupon to the House. An engrossed bill to make compensation to the widows and orphans of certain persons who were killed by Indians, under the sanction of flags of truce, was read the third time and passed. The SPEAKER laid before the House a letter from the Secretary of War, accompanying the copy of a message of Cornplanter and New Arrow to Major General Wayne, dated the 8th of December last, relative to the measures which they have taken to conclude a peace, on behalf of the United States, with certain tribes of hostile Indians; which were read and ordered to lie on the table. _Military Establishment._ The House again resolved itself into a Committee of the whole House on the motion of the 28th ultimo, for reducing the military establishment of the United States. Mr. MOORE said, that there was not sufficient information before the House respecting the prospect of a peace, to warrant a sudden reduction of the army. He referred to the abuses which had been hinted at in some of the branches dependent on the War Establishment, but he did not believe there had been any worth much notice. He also mentioned the abstruseness of attempting an investigation into the origin of the war--whether the frontier settlers, or the Indians, were in fault, was a difficult thing to determine; but from many circumstances, it appeared to him, the white people were often guilty of committing depredations. This was, in his opinion, a good reason why the protection of those frontiers should not be intrusted to the militia that would be raised there. Shall we intrust the conduct of that matter to the very persons who it has been alleged are often the aggressors? Can the President, at the distance he is situated from the Western territory, check all the irregular proceedings that might happen amongst such a militia? There were two obvious reasons for passing the law of the 5th of March, 1792, for the protection of the frontiers by regular forces. First, it could not be expected that militia would always prove successful against the Indians, because the latter are gaining more experience every day in the mode of warfare, and there can be no dependence on a treaty between those militia and the Indians. The second reason was, that the President was strongly impressed with the necessity of establishing the greatest degree of harmony between the United States and the Indians, by encouraging and protecting a trade with them, and that this could be easiest and best effected by establishing a line of forts along the frontiers, to be garrisoned by regular troops. Mr. M. next mentioned something of the manners and customs of the Indians, whose practice it is to spend most of their time on their hunting grounds, leaving their old men, women, and children, in their towns. They have no regular plan of government, and can only be attached by influencing some of their chiefs. The system of harassing them by burning and destroying their towns at the time they are employed in hunting, has come recommended to us by experience, and regular troops are the best to be employed in this service. Their present inexperience will soon be done away by a proper mode of discipline, and why may not these troops be soon instructed? Are they not as capable of receiving instructions as militia, and may we not expect more subordination amongst them, than could possibly be established over militia? He concluded by declaring himself against the motion. [Here the SPEAKER informed the Chair that lie had received a confidential message from the PRESIDENT. The committee then rose, and the galleries were closed for some time.] The House having gone into Committee, the debate was renewed by Mr. WILLIAMSON, Mr. MADISON, and Mr. STEELE. Mr. STEELE rose after Mr. MADISON, and said he was perfectly in sentiment with that gentleman, in regard to the propriety of inserting an amendment to the motion, which might secure a sufficient appropriation to carry on offensive operations against the hostile Indians, by the militia of the frontiers; and if an alteration was proposed to that effect, he would second it. The attention of the House to this question speaks its importance; it is probable one more important will not occur during the present session. On its decision are suspended the hopes and fears of the people of this country, their hopes of a speedy and honorable peace, and their fears of a standing army, with its usual retinue of political evils. The present is regarded as an interesting epoch in the affairs of the United States; and it has been perceived, with serious regret, that while our national character is forming, (he hoped it was not yet formed,) it seems to partake, in some respects, more of the unnatural spirit of monarchy, than of the mild and conciliatory temper of a republic. The principle of keeping up standing armies, though highly obnoxious to the great body of the people, has not been equally so to the Government; they have been maintained and increased without affording protection, or even defence to the frontiers. The supplies necessary to support the establishment begin to discover an alarming derangement of the public finances, and it is now incumbent on the House of Representatives to check this growing mischief. Mr. S. then adverted to the effects of standing armies on the morals and political sentiments of the people, wherever they had been employed; of the expensiveness of all such establishments, and of the wicked purposes to which they had been, and might be subservient. He said he had prepared himself to have spoken largely to this point, and to have quoted the pernicious effects of such a policy in other nations; but the debate having been already lengthy, and the committee probably fatigued, it would be sufficient for his present purpose, for the members to make their own reflections, and to mark the rapid progress of the army from 1789 to 1792, both in numbers and expenses. Instances from foreign history are superfluous, when our own affords such ample testimony. The establishment began with one regiment: it is now five. The House was called on in 1789 to appropriate a little more than $100,000 for that Department; in the present year, above $1,000,000 is demanded. The reason of this extraordinary additional expenditure, this unexpected increase of the army, if not enveloped in darkness, has been founded on policy hitherto not satisfactorily explained. He said, however lightly he was disposed to touch this part of the subject, he could not avoid reminding the committee of the memorable sentiments of 1776, in regard to standing armies; of the universal abhorrence of the Americans to them at that time; and, to illustrate it more clearly, he read the expressions of some of the States in their Bills of Right. These were the sentiments of the Whigs of 1776, and to such Whigs he wished to appeal on this occasion. He also reminded the committee of the recent debates of 1788, of the amendments proposed in several of the State Conventions; of the unanimity which prevailed among all ranks of people on this particular point; and it is now to be lamented, said he, that while the ink which recorded these objections to the constitution is yet drying, the evil then predicted has taken place. If there is a subject on which much deliberation is unnecessary, in order to form a right opinion, it would be in regard to military establishments. The feelings of a free people revolt at their continuance, and every man who reads or thinks, can point out their dangers. He said he felt more anxiety for the fate of this motion, than commonly marks his conduct, because this is the last session that will ever afford him an opportunity to trouble the House with his sentiments on this or any other subject. The motion was brought forward to discharge a duty which he owed to his constituents, to satisfy his own conscience, and to afford that protection to the frontiers which they deserved, and to save the public money. If an uncommon degree of zeal was discovered in supporting the motion, it ought to be attributed to these, and no other motives. The question will now soon be taken; if adopted, I shall be among those who rejoice; if rejected, among those who have always submitted with a proper degree of decency to the decision of the majority. But in any event, the public will know that we have asserted the sense of the people against standing armies; that we are anxious to defend the frontiers against their enemies; that we have recommended a system of economy and efficiency, instead of profusion and delay; that we have recommended a system calculated to produce victory and peace, instead of disgrace and war; and that we wish to rescue the Government from the intoxication of the times, and all the apery of military establishments. He said he had been attentive to the arguments of the opposition, and they led principally to four points. If neither of these positions be found tenable, the motion will certainly succeed; and that they are not tenable, is believed and will be shown. 1st. It has been boldly asserted that the PRESIDENT is the author of the existing system. 2dly. They call in question the sincerity of our declarations in wishing to afford effectual protection to the frontiers. 3dly. They deny the competency of the militia. 4thly. The impolicy of reducing the establishment, when a treaty is expected. In regard to the first, we deny that the PRESIDENT is the author of this plan of prosecuting the war. Not having avowed explicitly himself that he is so, no document appearing to confirm that opinion, we are justified in attributing a system which appears to us ineffectual to his Secretary, and not to him. It is true, that the Secretary is only a finger of his hand, and the intimate connection which must of necessity subsist between them, perhaps, is the ground upon which the assertion has been made. The Secretaries are all equally near to the PRESIDENT, and if it be admitted that he is the author of this, he may, with equal propriety, be said to have been the author of every system on general subjects which either of them have recommended. Was he the author of the report on the fisheries? Was he the author of the plan for establishing the National Bank? It is known that he was not, and circumstances might be mentioned (which are withheld from delicacy) to confirm this opinion. Was he the author of the Funding System? Some gentlemen in the opposition to this motion, would not be willing to give the PRESIDENT that credit if he claimed it, and some who support this motion would not only be sorry that the PRESIDENT had even claimed such a credit, but believe that it was in no respect attributable to him. The same gentleman (Mr. WADSWORTH) who first asserted that the PRESIDENT was the author of this military plan, in the same speech admitted it to be the war, as well as the plan of the House, and then argued on the necessity of stability in our measures. It is not very material to the present question whose plan it is; being a public measure, we are justified in offering our objections to it; and this is the first time that I have heard it publicly asserted that a Government should persevere in an error, because they had undertaken it. If the plan be a good one, it may be supported by reason; if a bad one, no name ought to be called in to prop it up. The inconsistency of that gentleman's (Mr. WADSWORTH's) arguments not only supports the motion before the committee, but shows the wretched shifts which have been used to defeat it. It has been said, in the course of the debate, that individual members, and even this House, are incompetent to decide upon the efficacy or inefficacy of military plans. In answer to this it may be said, that if we are not all Generals, we are all members, and that we have the privilege of thinking for ourselves and for our constituents. To admit this doctrine in the latitude which has been expressed, would be to introduce military ideas indeed; it would be to make soldiers of us, instead of Legislators: nay, worse than that, it would be to revive the exploded doctrines of passive obedience and non-resistance. In regard to the sincerity of his intentions to afford effectual protection to the frontiers, Mr. S. said that he had been sufficiently explicit; that a feeling for the sufferers had dictated this motion; that he was sorry that it had been whispered in the ears of some of the members that it was intended to withhold the necessary appropriations, and divert them to other purposes. If two regiments were insufficient to garrison all the posts necessary for defence, he would even, under certain restrictions, consent to continue the three sub-legions, thereby enabling the PRESIDENT to establish double the number of posts now erected, if he should deem it advisable. Regular troops being incapable of active expeditions against Indians in the wilderness, his wish was to abandon that system and confine them entirely to the garrison. The next objection to the motion is the incompetency of the militia; and to support this opinion the gentleman from Connecticut (Mr. WADSWORTH) has made this expression, "that as to the expedition under General St. Clair, the regulars were few, and not to be named when compared with the number of the militia." The truth is, there was not a man engaged that day as a militia man, except the advance guard commanded by Colonel Oldham, which consisted of about three hundred, perhaps a few more. The field return of the day preceding the action being in the War Office, this can be ascertained with precision. The balance of the army on that unfortunate day, had been enlisted as regulars, were fought as regulars, even clothed as regulars, and, poor fellows, died like regulars. They suffered the fate which awaits every regular army destined for similar expeditions. Even the handful of militia employed that day, did not deserve that name; they were chiefly substitutes for drafted men from the ceded territory. This draft became unavoidable, from a misfortune to General Sevier, which Mr. STEELE related. The attack on Major Adair has also been mentioned as a proof of the incompetency of militia, and Mr. S. insisted that the only inference which could be drawn from thence was, that one hundred militia were able to repel, but not destroy, near two hundred Indians. This event he conceived was in favor of and not against his motion. He next adverted to the arguments of Mr. WADSWORTH, in regard to the war of 1762; of the establishment of posts in Pennsylvania and Virginia, and of the success of Colonel Boquet's expedition. If two worn-out regiments at that time were sufficient to defend the frontiers, and, with the aid of the militia, to terminate the war, two new regiments, with all the vigor which the gentleman described them to possess, with the aid of established posts, and a much more effective militia, can certainly be equal to the same end. After examining Mr. W.'s arguments for some time, Mr. S. said, that when analyzed, it would be found that they proved more than they were intended to prove; but the merits of this motion did not require that he should take advantage of these indiscretions. He showed from the history of 1762, that though posts were established, with a handful of regular troops in each, they never answered the purpose of effectual protection; but the frontier people were always obliged, in a great degree, to defend themselves; that they were best calculated for that service, and that they would perform it now with alacrity and success, if well rewarded. Mr. S. then refuted the objection against the militia on account of their waste and expense which Mr. W. had alluded to. The law allows a mounted volunteer, furnishing himself with a good horse, good arms, provisions, and every other necessary, except ammunition, at his own risk and expense, one dollar per day. The exact expense of such an expedition can be calculated. Whether successful or not, the charge to the public cannot be increased. The contractors, quartermasters, and hospital departments, are all avoided, with the abuses, expenses, and frauds, attending such establishments. Mr. S. enlarged upon this point, and said that these were always found to be the most expensive departments in any army, and that the Federal Treasury had felt their effects already. In favor of the militia, it may be asked, who fought the battle of Bunker's Hill? Who fought the battles of New Jersey? Who have fought the Indians so often with success, under Generals Wilkinson, Scott, Sevier, and others? Who marched in 1776 under General Rutherford, through the Cherokee nation, laid waste their country, and forced them to peace? Who fought the battles of Georgia, under Clark and Twiggs? Who fought the battles of South Carolina, under the command of an honorable member now present? Delicacy forbids me to enlarge upon his successes in his presence. Who fought the ever-memorable battles of Cowpens, King's Mountain, Hanging Rock, Blackstocks, the pivots on which the Revolution turned in the Southern States? In short, who fought all the battles of the Southern States, while we had a mere handful of regular troops, scarcely the shadow, much less the reality of an army? They were all fought by freemen, the substantial freeholders of the country--the men attached to the Revolution from principle, men who were sensible of their rights and fought for them. Such men will not enlist in regular armies, nor will any one who has the disposition or the constitution of a freeman. It would give me pain to describe the trash which composes all regular armies: they enlist for three dollars a month; which, in a country like the United States, is a sufficient description of their bodies as well as their minds. Such men are not fit to combat the most active enemy in the world. Here Mr. S. read Major Gaither's and Major Trueman's depositions, respecting the defeat of the 4th November, 1791, stating that they could not see the Indians, because they were behind trees, &c.; that the regular troops tried, but could not fight that way; that they seemed to be stupid, and incapable of resistance; and that if any General in the world had commanded such men that day, he must have been defeated as they were. An additional argument, and one of the most weighty, too, against regular expeditions, in this species of warfare, is, that, by the slowness of their movements, the force of the enemy may be concentrated; time is afforded them to form alliances, and to confederate against those whom they consider a common enemy. It is otherwise with militia incursions. He offered a number of reasons to show that it was so, and how essential for the interest of the United States to adopt a policy calculated to detach the tribes from each other as much as possible. But it has been said, these men were not regular troops. Mr. S. asked, what, then, were they? They surely were not militia. The last objection, and the least serious of all, to this motion, is the expectations of a treaty in the spring. Mr. S. said, if he thought the gentleman who threw this difficulty in the way believed himself that we have any reason to expect a permanent peace from the treaty now proposed, it might deserve an answer. Facts are more to be relied upon than words. From the channel through which these propositions have come--from the whole complexion of their talks, and from the late attack on Major Adair, it may safely be asserted that no peace can be effected in the spring. He recapitulated some of the difficulties which this motion had to conflict with, and said that he could mention others, if he was at liberty to do so. Under such circumstances, success is hardly to be expected; but he knew the merits of the motion deserved it. Mr. HILLHOUSE, who had hitherto sat silent, observed that nothing new had been advanced in the whole course of this long debate, but what he had heard mentioned last winter in that House. He was then opposed in principle to a war establishment, and he still retained the same opinion; but, from the complexion of affairs, it appeared to him that he ought to submit, and give up his own opinion to the general sense of the Legislature, which at present seemed to be for persevering in the system already adopted, and which, as it had scarcely had time for a fair trial, he thought, therefore, ought not to be arrested, perhaps in the very instant when its efficacy was to be expected. If peace should not be established during the next summer, he would then join with such members as would propose a better system; but as the law provides for the discretionary powers of the Executive, it would be best to rely on them. A standing army, he said, was a thing impossible to be accomplished in the United States whilst the House of Representatives have the power of granting money only for two years at any time; he therefore had no fears on that score. An army existing in time of peace was the idea he had of a standing army, and not an army embodied for only a year or two. Upon the whole, it would be as expensive to disband the present force, and to institute another of militia, &c., as it will be to keep up the existing establishment for a little longer time; it was therefore his advice to let the matter rest where it is, with the Executive, for the present. But, in case of a peace not being accomplished within a reasonable period, he would join those who would be for a change in the system; and he was clearly of opinion that a system might easily be adopted, not only to protect our frontiers by repelling the savages, but to exterminate them altogether. Mr. FINDLAY felt himself inclined to say a word or two more in reply to Mr. STEELE. He thought it would be unjust to lay so much of the weight of protecting the frontiers on the militia only. He expatiated on the meaning of the word _militia_ as defined by law, &c. He also remarked that, however it might be fashionable to despise the levies, yet amongst them there were examples of great bravery to be found, and particularly in one battalion of the unfortunate army on the 4th of November, 1791. He noticed the well-conducted retreat of Major CLARK, and the success of General Broadhead up the Alleghany. It was unjust to expect to raise enough of militia in the back parts of Pennsylvania; and the inhabitants of Virginia are so dispersed near the frontiers that they cannot be expected from that State. With respect to the men who went out with General Harmar, and whose time of enlistment expired soon after they reached the scene of operations, many of them remained and settled in that country. He again repeated the injustice of calling out heads of families from one part of the frontier; and above all, he lamented the risk and loss of lives. But, if it should be determined to carry on the war with militia, let them be called from all parts of the United States. The burden already laid on a part of the inhabitants is extremely unequal, and must not lie longer on them. Let the troops now raising be disciplined. I am informed that many of them are considerably advanced in point of discipline, and may before spring become expert soldiers. Let these go on in the present system, and let the militia also be kept up or increased, until the object shall be attained for which the law was intended, and then, and not before, it may be proper to talk of reducing the present establishment. We are now in a situation that it would be extremely imprudent to retreat from. Mr. MURRAY delivered some opinions on the preceding arguments of all the members, and remarked that the army, under the present establishment, had no right to be compared to or called a standing army; it bore no more comparison to a standing army than a chameleon to an owl. Mr. WADSWORTH closed this tedious debate with a few further explanations. He accounted for the difference between his calculations and those of the gentleman from North Carolina by observing that he got some of his statements from the War Office. Mr. STEELE's were taken from the appropriation laws, and in one instance he had underrated the appropriations. With regard to the opinions he had delivered on the militia, he had never meant to traduce the character of militia, because he had often experienced their brilliant actions; his arguments went no further than to show that the operations of regular troops were in general more effectual. He never wished to detract from the honor of militia, but only to remark that they were not so efficient as regular troops. The question on the original motion being now put, was negatived. Mr. WILLIAMSON did not entirely approve of the motion in its present form; the blanks might be so filled, he thought, as to import a thing opposite to his wishes--they might import a discharge of the regular troops already raised. He believed his colleague had no such desire; he thought the measure would be improper; but he wished not to have a regiment of officers without soldiers; he wished to fix a time at which the recruiting service should cease and the supernumerary officers should be discharged. As he intended to move that the proposition might be so amended, he should consider it in that light, and he believed the measure would not be imprudent nor inconsistent with the most vigorous measures of defence or offence. It should be remembered that the House of Representatives, when they had the bill before them, which last winter passed into a law, for defending the frontiers, sent it to the Senate, with a clause importing that officers below the rank of field-officers should not be put into commission any faster than troops could be enlisted. The Senate, adhering to their privilege, refused to agree to that clause in the bill, and it became necessary immediately to commission the officers for five thousand men, some of whom, if report speaks truth, not covetous of honor, are content with their pay, without having raised three men. By the proposed amendment the officers only would be dismissed, whom most of us wished never to have seen in commission. The proposed regulation has been censured as implicating some kind of censure on the Executive. He viewed it in a different light. The Executive had done what was proper and necessary at the time. But if it should appear that other measures would fit the change of circumstances, he did not see why those measures should not be adopted. It should be recollected that, during the last winter, when the estimate of five thousand men as necessary for the defence of our frontiers was handed to Congress, there was no militia law. A well-armed effective militia, that palladium of liberty, had once and again been recommended by the PRESIDENT to the attention of Congress; but Congress, from year to year, as if they wished for a standing army, had neglected the militia. Towards the close of the last session, indeed, they passed a law. He hoped he might, without offence, call it the shadow of a law. It was saying, in a few words, that the several States might have a good militia if they pleased; and, if they pleased, they might have none at all. Was the Executive to trust the defence of a country to a militia formed under such a law? He thought not. But he observed that, since the last winter, it had come to be generally known that a class of our fellow-citizens exist on the frontiers who are at all times ready to serve, not as drafted militia, but as volunteers. These are the men by whom the Indians must be chastised, or we shall never have peace. They are the best woodsmen and marksmen, and they have no professional interest in spinning out the war. He must repeat the observation that volunteers of the militia are the only troops for vigorous offensive operations. Figure to yourselves an army of regulars creeping through the wilderness, with all its cannon and other military apparatus, in chase of a naked savage, who sees it without being seen. It is an elephant in chase of a wolf. The troops already raised may be pretty well disciplined before the season for action; they are sufficient, with the co-operation of the militia, to take a post, and build forts where they please; every thing else is beyond their power, if they were not five but fifteen thousand. They will never see an Indian unless he chooses to be seen. He wished to be indulged in a single observation respecting a case in which it was said the other day, the militia had been surprised. He was sorry that his naming Major Adair had produced the remark. He would nevertheless venture to repeat the case as an instance of vigilance and bravery. The Major, believing there was an enemy at hand, had visited all his posts at midnight in person; his Lieutenant, Madison, before the dawn of day, roused all the men, telling them that the Indians were coming. The Major, wishing to leave the ground before daylight, called in the sentinels; but the Indians, rushing in with them, gave a heavy fire before there was light by which they could be seen. The Major had not the merit, as he believed, of having been a continental officer, but he had the merit, not less honorable, of having served bravely in the militia. He questioned whether any of the green troops to be recruited next spring or summer will make so good a defence as Major Adair's militia had made. They had taken scalp for scalp, though they fought against the odds of three to one. He prayed it might be remembered that his ideas were not founded on any hopes of sudden peace with the Indians; on the contrary, every motion of the Indians, and every measure taken by those who had most influence over the Indians, induced him to regard an Indian war as the perpetual tax of at least one million per annum. It is fortunate, as he conceived, that the United States know the source of their misfortunes; and if they are compelled to spend one million per annum in opposing a savage enemy, who seems to be hunted upon them, perhaps they may be taught to indemnify themselves by refusing to expend several millions which they can easily save. If a perpetual tax on this head must be raised, sound policy will readily point to the proper object of taxation; but this must remain over for our successors. In the mean time, believing that the troops already raised are sufficient to maintain every fort that is or may be erected, and being confident that volunteers may be found at any time sufficient, if it shall be necessary, to extirpate every hostile tribe of Indians, he should vote for the proposition with the proposed amendment. The question being taken on Mr. W.'s amendment, viz: "_Resolved_, That a committee be appointed to bring in a bill to reduce the military establishment of the United States to ---- regiments, to consist of the men who are now in service, or who may be recruited before the ---- day of ---- next," &c.-- was negatived--32 to 24. The question then was on the original resolution, as moved by Mr. STEELE; which, being put, it was negatived--21 members only rising in favor of it. The committee then rose, and the Chairman reported accordingly. The report was laid on the table, and the House adjourned. MONDAY, January 7. Mr. LIVERMORE, from the committee appointed, presented a bill to repeal part of a resolution of Congress of the 29th of August, 1788, respecting the inhabitants of Post Saint Vincents; which was received, read twice, and committed. Mr. LAURANCE, from the committee to whom was recommitted the bill making appropriations for the support of Government for the year 1793, reported an amendatory bill; which was read twice, and committed to a Committee of the whole House immediately. The House accordingly resolved itself into the said committee, and, after some time spent therein, the Chairman reported that the committee had had the said bill under consideration, and made no amendment thereto. _Ordered_, That the said bill do lie on the table. The House again resolved itself into a Committee of the whole House on the bill to regulate the claims to Invalid Pensions; and, after some time spent therein, the committee rose, and reported progress. TUESDAY, January 8. The House proceeded to the consideration of the bill making appropriations for the support of Government for the year 1793, which lay on the table; and the said bill being amended, was, together with the amendments, ordered to be engrossed, and read the third time to-morrow. A message from the Senate informed the House that the Senate have passed a bill entitled "An act in addition to the act entitled 'An act to establish the Judicial Courts of the United States;'" to which they desire the concurrence of this House. The SPEAKER laid before the House a letter from the Secretary of State, accompanying a report of the assays and experiments made by the Director of the Mint, on the gold and silver coins of France, England, Spain, and Portugal, pursuant to the order of the 29th of November last; which were read, and ordered to lie on the table. The bill sent from the Senate entitled "An act in addition to the act entitled 'An act to establish the Judicial Courts of the United States,'" was read twice, and committed. _Military Establishment._ The House proceeded to consider the motion of the 28th ultimo, for reducing the Military Establishment of the United States, to which the Committee of the whole House had reported their disagreement on Saturday last. Whereupon, A motion was made and seconded to amend the same by striking out the words "each of ---- non-commissioned officers, privates, and musicians," and inserting, in lieu thereof, the words "of ---- non-commissioned officers, musicians, and ---- of the privates who are now in service, or may be recruited before the ---- day of ---- next." And the question being put thereupon, it passed in the negative--yeas 26, nays 32, as follows: YEAS.--John Baptist Ashe, Abraham Clark, Elbridge Gerry, William B. Giles, Nicholas Gilman, Benjamin Goodhue, Christopher Greenup, William Barry Grove, Richard Bland Lee, George Leonard, Samuel Livermore, Nathaniel Macon, James Madison, John Francis Mercer, Andrew Moore, Nathaniel Niles, Alexander D. Orr, Josiah Parker, Jeremiah Smith, John Steele, Thomas Sumter, Thomas Tredwell, Thomas Tudor Tucker, Abraham Venable, Artemas Ward, and Hugh Williamson. NAYS.--Fisher Ames, Abraham Baldwin, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Jonathan Dayton, William Findlay, Thomas Fitzsimons, Andrew Gregg, Thomas Hartley, Daniel Heister, James Hillhouse, Daniel Huger, Aaron Kitchell, John Wilkes Kittera, John Laurance, John Milledge, Frederick Augustus Muhlenberg, William Vans Murray, Cornelius C. Schoonmaker, Theodore Sedgwick, Peter Sylvester, Israel Smith, William Smith, Samuel Sterrett, Jonathan Sturges, George Thatcher, Jeremiah Wadsworth, Alexander White, and Francis Willis. And then the main question being put, that the House do agree to the said motion, it passed in the negative--yeas 20, nays 36, as follows: YEAS.--John Baptist Ashe, Abraham Clark, William B. Giles, Nicholas Gilman, Benjamin Goodhue, Christopher Greenup, William Barry Grove, George Leonard, Samuel Livermore, Nathaniel Macon, John Francis Mercer, Nathaniel Niles, Alexander D. Orr, Josiah Parker, Jeremiah Smith, John Steele, Thomas Sumter, Thomas Tredwell, Abraham Venable, and Artemas Ward. NAYS.--Fisher Ames, Abraham Baldwin, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Jonathan Dayton, William Findlay, Thomas Fitzsimons, Elbridge Gerry, Andrew Gregg, Thomas Hartley, James Hillhouse, Daniel Huger, Aaron Kitchell, John Wilkes Kittera, John Laurance, Richard Bland Lee, John Milledge, Andrew Moore, Frederick Augustus Muhlenberg, William Vans Murray, Cornelius C. Schoonmaker, Theodore Sedgwick, Peter Sylvester, Israel Smith, William Smith, Samuel Sterrett, Jonathan Sturges, George Thatcher, Thomas Tudor Tucker, Jeremiah Wadsworth, Alexander White, Hugh Williamson, and Francis Willis. _Ordered_, That the committee to whom was commiteed the letter and representation from the Chief Justice and Associate Judges of the Supreme Court of the United States, referred to in the PRESIDENT's Message of the 7th of November last, be discharged from the further consideration of the same. The House again resolved itself into a Committee of the whole House on the bill to regulate the claims to Invalid Pensions; and, after some time spent therein, the Chairman reported that the committee had again had the said bill under consideration, and made several amendments thereto; which were read, and partly considered. FRIDAY, January 18. A message from the Senate informed the House that the Senate have passed a bill, entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters," in which they desire the concurrence of this House. MONDAY, January 21. The bill sent from the Senate entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters," was read twice, and committed. MONDAY, February 4. _Fugitives from Justice and from Labor._ The House resolved itself into a Committee of the whole House on the bill sent from the Senate entitled, "An act respecting fugitives from justice and persons escaping from the service of their masters;" and, after some time spent therein, the Chairman reported that the committee had had the said bill under consideration, and made an amendment thereto; which was twice read, and agreed to by the House. _Ordered_, That the said bill, with the amendment, do lie on the table. TUESDAY, February 5. _Fugitives from Justice and from Labor._ The House proceeded to consider the bill sent from the Senate entitled "An act respecting fugitives from justice and persons escaping from the service of their masters," which lay on the table: Whereupon, the said bill, together with the amendment agreed to yesterday, was read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas 48, nays 7, as follows: YEAS.--Fisher Ames, John Baptist Ashe, Abraham Baldwin, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Abraham Clark, Jonathan Dayton, Wm. Findlay, Thomas Fitzsimons, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, James Gordon, Christopher Greenup, Andrew Gregg, Samuel Griffin, William Barry Grove, Thomas Hartley, James Hillhouse, William Hindman, Daniel Huger, Israel Jacobs, Philip Key, Aaron Kitchell, Amasa Learned, Richard Bland Lee, George Leonard, Nathaniel Macon, Andrew Moore, Frederick Augustus Muhlenberg, William Vans Murray, Alexander D. Orr, John Page, Cornelius C. Schoonmaker, Theodore Sedgwick, Peter Sylvester, Israel Smith, William Smith, John Steele, Thomas Sumter, Thomas Tudor Tucker, Jeremiah Wadsworth, Alexander White, Hugh Williamson, and Francis Willis. NAYS.--Samuel Livermore, John Francis Mercer, Nathaniel Niles, Josiah Parker, Jonathan Sturges, George Thatcher, and Thomas Tredwell.[46] MONDAY, February 11. _Examining Votes for President, &c._ Mr. WILLIAM SMITH, from the committee appointed on the part of this House jointly with a committee appointed on the part of the Senate, to ascertain and report a mode of examining the votes for PRESIDENT and VICE PRESIDENT of the United States, and for other purposes expressed in the resolution of the fifth instant, made a report; which was twice read, and agreed to by the House, as follows: "That the two Houses shall assemble in the Senate Chamber on Wednesday next, at twelve o'clock: that two persons be appointed tellers on the part of this House, to make a list of the votes as they shall be declared: that the result shall be delivered to the PRESIDENT of the Senate, who shall announce the state of the vote, and the persons elected, to both Houses, assembled as aforesaid, which shall be deemed a declaration of the persons elected PRESIDENT and VICE PRESIDENT, and, together with a list of the votes, be entered on the journal of the two Houses." _Ordered_, That Mr. WILLIAM SMITH and Mr. LAURANCE be appointed tellers on the part of this House, pursuant to the said report. WEDNESDAY, February 13. _Votes for President and Vice President._ A message from the Senate informed the House that a PRESIDENT of the Senate is elected for the sole purpose of opening the certificates, and counting the votes of the several States, in the choice of a PRESIDENT and VICE PRESIDENT of the United States; and that the Senate is now ready, in the Senate Chamber, to attend, with this House, on that occasion. _Resolved_, That the SPEAKER, attended by the House, do now withdraw to the Senate Chamber, for the purpose expressed in the said message. The SPEAKER accordingly left the chair, and, attended by the House, withdrew to the Senate Chamber, and, after some time, returned to the House. The SPEAKER resumed the chair. Mr. WILLIAM SMITH and Mr. LAURANCE then delivered in, at the Clerk's table, a list of the votes of the Electors of the several States, in the choice of a PRESIDENT and VICE PRESIDENT of the United States, as the same were declared by the PRESIDENT of the Senate, in the presence of the Senate and of this House; which was ordered to be entered on the journal, and is as follows: [The same as in the Senate proceedings.] THURSDAY, February 28. _Official conduct of the Secretary of the Treasury._ The resolutions brought forward yesterday by Mr. GILES, were called for by that gentleman. The reading being finished, Mr. AMES moved that the resolutions should be taken up. Mr. MURRAY suggested the necessity of giving a preference to the Judiciary Bill reported by him some days since. He was seconded by Mr. KEY. The motion for taking up the resolutions was carried, forty members rising in favor of it. The resolutions were accordingly read by the Clerk, and are as follow, viz: 1. _Resolved_, That it is essential to the due administration of the Government of the United States, that laws making specific appropriations of money should be strictly observed by the administrator of the finances thereof. 2. _Resolved_, That a violation of a law making appropriations of money, is a violation of that section of the Constitution of the United States which requires that no money shall be drawn from the Treasury but in consequence of appropriations made by law. 3. _Resolved_, That the Secretary of the Treasury has violated the law passed the 4th of August, 1790, making appropriations of certain moneys authorized to be borrowed by the same law, in the following particulars, viz: _First_, By applying a certain portion of the principal borrowed to the payment of interest falling due upon that principal, which was not authorized by that or any other law. _Secondly_, By drawing part of the same moneys into the United States, without the instructions of the President of the United States. 4. _Resolved_, That the Secretary of the Treasury has deviated from the instructions given by the President of the United States, in exceeding the authorities for making loans under the acts of the 4th and 12th of August, 1790. 5. _Resolved_, That the Secretary of the Treasury has omitted to discharge an essential duty of his office, in failing to give Congress official information in due time, of the moneys drawn by him from Europe into the United States; which drawing commenced December, 1790, and continued till January, 1793; and of the causes of making such drafts. 6. _Resolved_, That the Secretary of the Treasury has without the instructions of the President of the United States, drawn more moneys borrowed in Holland into the United States than the President of the United States was authorized to draw, under the act of the 12th of August, 1790: which act appropriated two millions of dollars only, when borrowed, to the purchase of the Public Debt: And that he has omitted to discharge an essential duty of his office, in failing to give official information to the Commissioners for purchasing the Public Debt, of the various sums drawn from time to time, suggested by him to have been intended for the purchase of the Public Debt. 7. _Resolved_, That the Secretary of the Treasury did not consult the public interest in negotiating a loan with the Bank of the United States, and drawing therefrom four hundred thousand dollars, at five per cent. per annum, when a greater sum of public money was deposited in various banks at the respective periods of making the respective drafts. 8. _Resolved_, That the Secretary of the Treasury has been guilty of an indecorum to this House, in undertaking to judge of its motives in calling for information which was demandable of him, from the constitution of his office; and in failing to give all the necessary information within his knowledge, relatively to the subjects of the reference made to him of the 19th January, 1792, and of the 22d November, 1792, during the present session. 9. _Resolved_, That a copy of the foregoing resolutions be transmitted to the President of the United States. Mr. GILES then moved that they should be referred to a Committee of the whole House. Mr. W. SMITH was decidedly opposed to referring those resolutions to the consideration of the Committee of the whole House, because he neither viewed a discussion of them as necessary on the present occasion nor warranted by the nature of the inquiry into the Secretary's conduct. It was trifling with the precious time of the House to lavish it on abstract propositions, when the object of the inquiry ought to be into the facts. He was satisfied that should the House once involve itself in an investigation of theoretic principles of government, the short residue of the session would be exhausted, and no opportunity remain for examining the charges themselves. Those charges being made, it became the House, from a sense of duty to the public and justice to the accused, to proceed immediately to consider them. If the mover intended to apply the principles of the two first resolutions to the facts contained in the subsequent ones, it was unquestionably proper first to substantiate the facts, and then establish the principles which were applicable to them; but it was surely a reversal of order to spend much time in establishing principles, when it might happen that the charges themselves would be totally unsupported. He did not like this mode of proceeding, because it might tend to mislead the House; it was sometimes a parliamentary practice to endeavor to lead the mind to vague and uncertain results, by first laying down theorems from which no one could dissent, and then proceeding by imperceptible shades to move unsettled positions, in order ultimately to entrap the House in a vote which in the first instance it would have rejected. This mode of conducting public business, he considered as inconsistent with fair inquiry. The question was, had the Secretary violated a law? If so, let it be shown; every member was competent to decide so plain a question. He could examine the proofs, read the law, and pronounce him guilty or innocent without the aid of these preliminary metaphysical discussions. If it were urged that the propositions are so plain and obvious that no time would be lost in considering them, he then begged leave to observe that all antecedent discussions of constitutional questions had never failed to occupy a large portion of their time, and that however self-evident the resolutions might at the first glance appear, a more critical attention would satisfy a mind not much given to doubt that they were by no means so conclusive as to be free from objections. Though the position contained in the first resolution, as a general rule, was not to be denied; yet it must be admitted, that there may be cases of a sufficient urgency to justify a departure from it, and to make it the duty of the Legislature to indemnify an officer; as if an adherence would in particular cases and under particular circumstances, prove ruinous to the public credit, or prevent the taking measures essential to the public safety, against invasion or insurrection. In cases of that nature, and which cannot be foreseen by the Legislature nor guarded against, a discretionary authority must be deemed to reside in the PRESIDENT, or some other Executive officer, to be exercised for the public good; such exercise, instead of being construed into a crime, would always meet the approbation of the National Legislature. If there be any weight in these remarks, it does not then follow, as a general rule, that it is essential to the due administration of the Government, that laws making specific appropriations should in all cases whatsoever, and under every public circumstance, be strictly observed. Before the committee could come to a vote on such a proposition, it would be proper to examine into the exceptions out of the rule, to state all the circumstances which would warrant any departure from it, to whom the exercise of the discretion should be intrusted, and to what extent. Did any member wish at this period to attempt this inquiry? He supposed not. Let every deviation from law be tested by its own merits or demerits. The second resolution was liable to stronger objections. It might with propriety be questioned whether, as a general rule, the position was well founded. A law making appropriations may be violated in various particulars without infringing on the constitution, which only enjoins that no moneys shall be drawn from the Treasury but in consequence of the appropriations made by law. This is only to say, that every disbursement must be authorized by some appropriation. Where a sum of money is paid out of the Treasury, the payment of which is authorized by law, the constitution is not violated, yet there may have been a violation of the law in some collateral particulars. There may even have been a shifting of funds, and however exceptionable this may be on other accounts, it would not amount to that species of offence which is created by the constitution. The Comptroller of the Treasury must countersign every warrant, and is responsible that it be authorized by a legal appropriation; yet it cannot be supposed that he is to investigate the source of the fund. One of the alleged infractions stated in the subsequent resolution, namely, the drawing part of the loans into the United States without the instructions of the PRESIDENT, evinces that the opposite construction is not a sound one. For suppose the fact proved, and suppose it a violation of the law, it certainly would be a very different thing from drawing money out of the Treasury without an appropriation by law; for in this case, there would be no drawing money from the Treasury at all, the money never having been in the Treasury. Mr. S. then, said, he should also object to referring the last resolution, which is in these words, "_Resolved_, That a copy of the foregoing resolutions be transmitted to the PRESIDENT." The object of this resolution went clearly to direct the PRESIDENT to remove the Secretary from office; the foregoing were to determine the guilt, the last to inflict the punishment, and both the one and other without the accused being heard in his defence. When the violation of the constitution was so uppermost in our minds, it would be indeed astonishing that we should be so hoodwinked as to commit such a palpable violation of it in this instance. The principles of that constitution, careful of the lives and liberties of the citizens, and what is dearer to every man of honor, his reputation, secure to every individual in every class of society, the precious advantage of being heard before he is condemned. That constitution, peculiarly careful of the reputation of great public functionaries, directs that when accused of a breach of duty, the impeachment must be voted by a majority of the House of Representatives, and tried by the Senate, who are to be on oath, and two-thirds of whom must concur before a sentence can pass, by which the officer is to be deemed guilty. The officer is to be furnished with a copy of the charge, and is heard by himself or his counsel in vindication of his conduct. Such are the solemnities and guards by which they are protected, and which precede a sentence, the only effect of which is a removal from office. But if the House proceed in the manner contemplated by this resolution; if they first vote the charges, and send a copy of them to the PRESIDENT, as an instruction to him to remove the officer, they will violate the sacred and fundamental principles of this, and every free Government. They will condemn a man unheard, nay, without his having even been furnished with the charges against him; they will condemn to infamy a high and responsible officer convicted by the Representatives of the people, of a violation of the important trusts committed to him, without affording him one opportunity of vindicating his character and justifying his conduct. Mr. MURRAY said he was opposed to the reference of the resolutions to the Committee of the Whole. He had, as far as the time permitted, examined the several reports on which the examination depended, and was then ready to vote on them, though he confessed, from the intricacy which was inherent in such a subject, as well as from the vast variety of the detail involved, he had not had sufficient time for a complete investigation. Nor did he imagine that any man who had not previously meditated on the subject for a length of time, and made choice of his ground of attack, could say he was completely master of the subject. Some vote, however, was now rendered essential to the character, not only of Government, but of the gentleman who presided over the finances of the country. But three days were left for this inquiry, and to finish a great deal of other business; and he thought that despatch which was usual in the House ought to be used in preference to the indulgence which a committee afforded. As to the abstract propositions, if it were necessary now to go into them, he thought it would be proper to decide on them first. He thought it most logical to lay down principles of reasoning before facts were developed. Were they agreed to by the House, it would be under provisions and restrictions. They could not have the implicit force of axioms, but at most must be yielded to as wholesome maxims, the application of which must be frequently modified by a certain degree of discretion. With respect to all the other resolutions, he imagined they would, on examination, be found to be unwarranted by facts. He hoped the movers and supporters of the resolutions would not be gratified at so late a season by the House in resolving itself into a Committee of the Whole. The mode in which they were brought forward did not entitle them to much confidence. He said, a more unhandsome proceeding he had never seen in Congress. It had been a practice, derived from the lights of common liberty, common right, and the first principles of justice, that whoever was charged with a violation of law on which a punishment ensued, should have some mode of answering to the charge. It had, in a recent instance, been the practice of Congress, when an officer's conduct was even in the first instance inquired into, to afford the officer an opportunity of attending upon the examination on which his offence or his freedom from blame was to appear. He alluded to the conduct of the House when an examination took place relatively to the failure of General St. Clair's expedition. Suspicions were entertained that blame lay somewhere. A committee was appointed to examine. The three officers particularly concerned were, he understood, invited, as it were, to come before the committee, to explain, to interrogate, and to give information. Though the Secretary of War was not permitted to explain on this floor, justice and delicacy, and the most common principles of jurisprudence, to which we attempted to hold some analogy, demanded that he should be heard somewhere, and the committee was renewed for this purpose. The Quartermaster General asked to be heard on this floor. Though refused, he was permitted to attend that committee on whose examination his character as a Quartermaster depended. Were any man responsible as an officer to this House to fall under the suspicion of its members, a regard to decency and to the established rights of citizenship, would teach gentlemen to inquire formally before they hastily laid a charge on the table, to which they might move the assent of the House. But in this proceeding a Legislative charge was gone into before inquiry had been instituted. Every rule of justice, and all that delicacy which ought ever to attend her progress, had been disregarded, and in the very first instance, a number of charges are brought forward, not for inquiry, but conviction, which, if sanctioned by a majority of the House, are to be followed by the dismission of one of the highest officers in the Government. This mode was as tyrannical as it was new, and if any thing could throw a bias against the resolutions, independent of inquiry, it was the partial and unjust form in which the proceeding had commenced. Resolutions of conviction might rise out of the report of a committee of inquiry, who would act as a Grand Jury to the House, but could never precede it. He hoped the House would not refer to a Committee of the Whole what might be decided in the House with more despatch. Mr. PAGE in reply to Mr. SMITH, spoke, in substance, as follows: Mr. Chairman: The more precious our time, the more readily shall I vote for a consideration of the first resolution; for I think it of more consequence that we should decide on it, than on any other before us. We find, from the inquiry which has been set on foot into the conduct of the Secretary of the Treasury, that he differs from the mover of the resolution in opinion respecting his powers, and the constitutional obligation he may be under of regarding acts of appropriation; it therefore must be the wish of the Secretary himself, whether we agree with him or not; and it is our duty, as soon as possible, I conceive, to let our constituents know whether we approve, or not, of his opinion. The Secretary himself, I think, confesses "that a strict adherence to appropriations, in certain cases, would be pusillanimity." He preferred, no doubt, the public good, which he thought he had in view, to a strict compliance with an act of appropriation. It becomes us, then, to determine whether we wish that the Secretary shall hereafter be bound by our acts of appropriation or not. I cannot conceive that the rejection of the first resolution can alter the nature of the case before us, or in any manner confirm or invalidate the truth of facts which some gentlemen seem so apprehensive may lead to an impeachment. For my part, I keep in view the first resolution, without thinking a moment of the last, or the intermediate propositions. When they shall come under consideration, I shall be ready to show a proper attention to them. How the first resolution can be called an abstract proposition, I know not, when the nature of the last before us requires a decision on it. The Secretary himself should desire it, and our constituents must expect it. If the Committee of the Whole shall be of opinion that appropriations ought to be sacredly regarded, they will agree to the resolution; if they think they may be dispensed with "in certain cases," they may amend the resolution, and qualify it so as to justify the conduct of the Secretary. To call the resolution a preamble, and to object to it as such, appears to me as extraordinary as to call it an abstract proposition; for I have always thought it inconsistent with Republican principles to object to preambles. I have remarked, sir, when they have been objected to, it became the Representatives of a free people to show on what principles and with what views their laws are enacted, and, not in a dictatorial manner enact that it shall be so and so. The framers of our constitution have set us an example of an excellent preamble; and, as it has been remarked by several members, this House has occasionally used them; I think, therefore, that none of the objections to the commitment of the first resolution are of sufficient weight to induce the House to agree to the motion for striking out the two first resolutions. The question was now taken on committing the first two resolutions, and negatived--25 to 32. On the question of referring the last, only fourteen members voted in the affirmative. _Ordered_, That the third, fourth, fifth, sixth, seventh, and eighth resolutions contained in the said motion be committed to a Committee of the whole House immediately. The House accordingly resolved itself into the said committee; and, after some time spent therein, the committee rose, and had leave to sit again. FRIDAY, March 1. _Official conduct of the Secretary of the Treasury._ The House again resolved itself into a Committee of the whole House on the third, fourth, fifth, sixth, seventh, and eighth resolutions contained in the motion of yesterday, respecting the official conduct of the Secretary of the Treasury. The third resolution being under consideration, in the words following, viz: "_Resolved_, That the Secretary of the Treasury has violated the law, passed the fourth of August, one thousand seven hundred and ninety, making appropriations of certain moneys authorized to be borrowed by the same law, in the following particulars, to wit: "1. By applying a certain portion of the principal borrowed to the payment of the interest falling due upon that principal, which was not authorized by that or any other law. "2. By drawing part of the same moneys into the United States without the instructions of the President of the United States." Mr. BARNWELL.--Mr. Chairman, before I proceed to discuss the observations which yesterday fell from the gentleman who introduced the resolutions now before us, I cannot refrain from saying that I am extremely happy that, in passing through the medium of that gentleman's examination, this subject has changed its hue from the foul stain of peculation to the milder coloring of an illegal exercise of discretion, and a want of politeness in the Secretary of the Treasury. I feel happy, because I always am so when any man charged with guilt can acquit himself; and the more so now, when a man in a high responsible office, and high in the estimation of his countrymen, can reduce a charge from a quality calculated to have excited an alarm, even in Pandemonium, to such a shape as I fancy will scarce serve to satisfy the uncommon curiosity which it appears to have excited. As I have never been in the habit of taking notes, I shall depend upon memory in answering the gentleman from Virginia; although I imagine, as that gentleman usually sticks very close to his point, whatever it may be, that, in pursuing his charges, I shall substantially answer his arguments. In commenting upon the two first resolutions, to which I am by order confined, I shall consider, in the first instance, what regards the right of drawing money into this country. The gentleman appears not to have considered the law properly, for there cannot be a doubt that the PRESIDENT had a right to make what arrangements he pleased, in order to attain what he might consider a proper modification of the debt due by the United States abroad. He might have borrowed the money here, or have paid it here; he might have borrowed the money in England, or wherever he thought fit. I will ask the gentleman by what precise authority he borrowed the money in Amsterdam and Antwerp, and paid it in Paris? Certainly by none but that discretion which has been depended upon to modify the debt in the manner most conducive to the interest of the United States. I take it, then, for granted, Mr. Chairman, that the right of the PRESIDENT to draw the money borrowed here, or to send it any where, must be conceded. The question will then arise, whether the Secretary of the Treasury had a right to do this or not, and whether this has not been done without, nay, against the instructions of the PRESIDENT? I really consider this as one of the most extraordinary cases that I have ever known exhibited. Let us consider its form. A highly important trust, of no less import than the discretionary use of fourteen millions of dollars, is placed in the PRESIDENT OF THE UNITED STATES; he, by a general commission, and by special instruction, deputes this power to the Secretary of the Treasury, stating that he is to conform to these and whatever instructions he might from time to time give him. Let any man seriously examine these powers, and I am of opinion that the Secretary, under these, had a right to draw, if he thought proper, unless instructed to the contrary; for the PRESIDENT conveys a complete power to modify the debt, provided that it should be, with all convenient despatch, applied to pay the principal and interest due to France; for where the payments are to be made is certainly left to the Secretary. If this has not been exercised advantageously, this is another circumstance which the gentleman himself has not questioned. But, says the gentleman, the Secretary, under these instructions, had no special authority to draw; notwithstanding which, he began to draw in 1790, and has continued to draw, at different times, into this country the enormous sum of three millions of dollars, and therefore he must have done this without, nay, against the instructions of the PRESIDENT, who, it is presumed, having delegated this great trust, has never, for three years, inquired into the performance of it. Can this be the inference of common sense? Can this be the inference of the experience which we have had of the PRESIDENT, one of the prominent features of whose character always has been an industry to investigate particulars, as remarkable as his sagacity to frame generals? If, then, instructions have not been given, or have been exceeded, was it necessary for us to come in aid of the PRESIDENT, he who by our law has the power, which we ourselves cannot exercise, of removing any of the Executive officers at pleasure? It certainly cannot be necessary; for, as this officer continues to act, we must conclude that he has either acted by instructions, or in such manner as to have given satisfaction to his principal without them. Really, Mr. Chairman, I cannot but believe that if suspicion had not led the gentleman from Virginia astray, the usual correctness of his understanding would have prevented him from pursuing such an _ignis fatuus_ as this. Mr. W. SMITH regretted that so important an inquiry had been instituted at the very close of the session, when the members were thronged with business of an indispensable nature, and it was scarcely possible for them to bestow that attention and deliberation which the nature of the subject called for. But, while he expressed this regret, he assured the committee that it was mingled with much satisfaction, in finding that the vague charges of mismanagement, with which the public had long been alarmed, were at length cast into a shape susceptible of investigation and decision. Previous to an examination of the specific charge then under consideration, he claimed the indulgence of the committee in offering a few preliminary remarks, which, though they did not bear precisely upon the charge itself, yet were intimately connected with the subject-matter of the inquiry, and were justified by the general remarks of gentlemen who had preceded him. In recurring back to the origin and progress of this examination, it must appear somewhat surprising that that which, in the commencement of the session, was sounded forth as gross peculation, now turned out to be nothing more than a mere substitution of funds, and that that which was announced as abominable corruption, was dwindled away into a mere drawing of money from Europe into this country, to be applied here according to law. Whatever credit might be due to the motives which had originated this inquiry, every member would concur in the sentiment, that in a government constituted like that of the United States, which had nothing but the public confidence for its basis, premature alarms and groundless suspicions respecting the conduct of public officers were pregnant with the most injurious consequences. This opinion was more peculiarly applicable to the important station of Secretary of the Treasury. Intrusted with the management of a large revenue, and necessarily clothed with some latitude of discretion, it was to be expected that he would excite the jealousy of the public vigilance; but as long as he kept in view the injunctions of law, and the public good, his reputation was entitled to that security which is due to every citizen. An officer, intrusted with the care and distribution of public moneys, is generally looked at with a watchful eye; mankind are too prone to suspect the purity of his conduct; slight insinuations are but too often sufficient to injure him in the public estimation. Such being the natural propensity of things, it doubtless behoved those who wished for tranquillity in the country to withhold charges not clearly warranted by proof--to suspend animadversions which were not likely to terminate in conviction. A contrary proceeding had an inevitable tendency unnecessarily to alarm the public mind, to instil into it suspicions against the integrity of men in high stations, to weaken their public confidence in the Government, and to enervate its operations. There was something remarkable in the nature of the present allegations against the Secretary. Taking them all into view, they presented nothing which involved self-interested, pecuniary considerations; and in this, they essentially differed from accusations against financiers in other countries, to whom motives of interest were generally ascribed as the source of their peculations. To the Secretary, no such motive was imputed; notwithstanding former insinuations against his integrity, the sum of all the charges now amounted to nothing more than arrogance, or an assumption of power, or an exercise of unauthorized discretion. Mr. S. proceeded next to examine the charge under consideration. It consisted of two items: the first, the application of a certain portion of the principal sum borrowed in Europe to the payment of interest falling due upon that principal, which it was contended was not authorized by any law; the second, the drawing part of the same moneys into the United States, without the instructions of the PRESIDENT. The first item of this supposed violation of law appeared of so frivolous a nature that it did not merit much discussion; at any rate, it was more an objection of form than of substance. If he comprehended well the purport of the charge, it was nothing more than this--that the Secretary having moneys at his disposal in Europe applicable to the purchase of stock in this country, and having at the same time moneys in this country applicable to the payment of the interest abroad, had substituted the one for the other. He had paid the foreign interest out of the foreign funds, and he had purchased stock with the domestic funds. This was the heinous offence with which he was charged, and which was thought sufficient to remove him from office. If the moneys in Europe might have been drawn to this country by bills, for the purchase of the debt, it might have equally been drawn here, by ordering the application of a sum in Europe, for a purpose which would be represented by an equal sum here, to be applied to the purchase. The substance, not the form, is to decide whether this mode of negotiating the matter was proper. Suppose bills had been ordered to be drawn on the commissioners, and remitted to them on account of the foreign interest, would not this have been as regular as to draw them for sale? Did the execution of the law require that the Secretary, having funds in Europe with which the foreign interest might be discharged, should nevertheless remit moneys abroad for that purpose, and then, having funds in this country with which the purchases of the debt might be made, should draw bills to bring the foreign funds here? Was there any necessity for this complex operation, for the expense of remittance, the probable loss on the sale of bills, the loss of interest while the money was _in transitu_, when the whole matter could be negotiated by the simple and economical mode pursued? So far from this arrangement being a ground of censure, Mr. S. asserted that, had the Secretary pursued the other mode, he would have been animadverted upon with great severity for such an extraordinary course. He would have been accused of ignorance of his duty, and every loss incidental to the transaction would have been charged to his account. The second division of the charge, being of more magnitude, required a more lengthy discussion. This instance of violation consisted in a supposed deviation from the instructions of the PRESIDENT, or a supposed acting without any instruction whatever. It was, however, begging the question; it was taking for granted that which did not appear, and which ought not to be presumed. And here, Mr. S. observed, the gentlemen on the other side had entirely reversed one of the fundamental maxims of criminal jurisprudence, which declared that innocence should be presumed and guilt proved; whereas they had presumed guilt, and called upon the accused to prove his innocence. And what was the slender basis on which the presumption was built? Why, say the gentlemen, the instructions from the PRESIDENT to the Secretary, which have been laid before the House, relate only to the payment of the French debt, and convey no authority to draw any of the foreign loan into this country for the purchase of stock; and hence they infer, he had no authority for this latter purpose. To comprehend the fallacy of the inference, it was only necessary to recur to the laws, and to the PRESIDENT's commission to the Secretary to negotiate the loans. Two acts of Congress had passed; one on the 4th of August, the other on the 12th of August, 1790. The first authorized a loan of twelve millions of dollars, applicable to the payment of the French debt; the other, a loan of two millions, applicable to the purchase of the domestic debt. The PRESIDENT's commission to the Secretary embraced both acts and both objects, and under that commission one loan was negotiated applicable to both objects. True it is, that the PRESIDENT's first instructions were confined to one object, namely, the French debt; but the inference is not that no other instructions were given, and that the Secretary acted without authority; but the very reverse, that the PRESIDENT either left the other object to the general discretion of the Secretary, who was, _ex officio_, the proper agent and his representative; or that he reserved it for subsequent and occasional instructions. This inference must be the true one; first, because a contrary supposition would impute to the PRESIDENT an illegal intention, that of applying all the moneys borrowed under both acts to the object of one only; secondly, because the commission extending to the borrowing fourteen millions of dollars, and embracing both objects, and the instructions being confined to twelve millions of dollars, and to only one object, it followed that the other either was left to discretionary management, or to after regulation, for the law enjoined the execution of both. If presumption, then, was to govern, the more natural presumption was, that the officer acted according to some general discretion reposed in him, or according to instructions from time to time given. These instructions may have been verbal, as well as written. The written instructions given in the first instance were evidently confined to the object of the first act. The necessary conclusion is, that the application of the moneys borrowed under the second act was not meant to be included in that instruction, but was left to be regulated by a general discretion, or by occasional directions, verbal or otherwise. Having gone through this resolution, Mr. S. observed, that, if there was as little of criminality in the subsequent charges as in that which he had just discussed--and from an attentive examination he sincerely believed it--he was satisfied that, notwithstanding all the severe animadversions within, and all the virulent calumny without, the walls of Congress, the conduct of the Secretary would come forth chaste and unblemished. Instead of any thing being detected which would disgrace Pandemonium, nothing could be chargeable to him which would sully the purest angel in heaven. Whatever difference of opinion might exist as to the wisdom and benefit of his measures, he was confident in saying, that in every thing the Secretary had done, he had been guided by principles honorable and patriotic, and he trusted that a very great majority of the committee would, by their votes, evince the same sentiment. The sword of justice, it was said, ought at times to be taken from its scabbard to keep great public functionaries within the pale of the law; but it should be remembered that if Justice had its sword to punish the guilty, it had likewise its shield to protect the innocent. If the Secretary had committed a wanton violation of law, let the sword be drawn forth for his punishment; but if he has pursued the dictates of an enlightened patriotism, the committee were called upon to raise the shield for the defence of a faithful officer. Mr. FINDLAY addressed the Chair as follows: Mr. Chairman: Being strongly impressed with the importance of our time, which is now so near an end, though I had the honor of seconding the resolutions, I took no part in the debates of yesterday; nor will I now detain you with replies to many of the arguments which have been offered against the resolution now under discussion. Upon one argument frequently introduced by the gentleman last up, viz: the greatness of the Secretary's character, &c., I will only make a single remark. There is no character officially known in Executive departments of this Government, who merits pre-eminence, or to whom a degree of greatness can be ascribed, but in proportion to his prompt execution of the laws, and the attention with which he discharges the duties of his office. From this rule, the PRESIDENT himself is not exempt, much less a subordinate Secretary, whose appointment is during pleasure, and the duties assigned him of a changeable and temporary nature. But to come to the resolution before us. The first questions that offer themselves, are: Was the money in question appropriated to special and distinct purposes? Did the Secretary of the Treasury apply the money to other uses than the law directed? In answer to the first, it is only necessary to advert to the law authorizing the loans. The law authorizing the twelve million loan, appropriates whatever amount may be borrowed solely to the payment of debts then due to France and Holland. The law authorizing the two million loan directs the application thereof to the redemption of the domestic debt, in aid of about ---- dollars, arising from the revenues previous to the 1st of January, ----. These appropriations are precise, distinct, and unconditional. With respect to the uses, no room was left for the exercise of discretion. The will of the Legislature was express and clearly defined; it left no room for evasion, nor any excuse for mistake; nor did the PRESIDENT transfer to the Secretary any other authority or instructions than what the law expressed. But the gentleman from South Carolina says, that the presumption is, that the PRESIDENT did give other instructions than he has communicated; that, in this case, presumption should be admitted as conclusive testimony, and that neither the Secretary nor the PRESIDENT is obliged to communicate the instructions or authority to us. The gentleman is a lawyer: I will appeal to himself; I will appeal to all the professional members on the floor, whether presumptions can be admitted as proof, where, in the nature of the case, positive testimony can be procured. Surely, in courts of justice, positive testimony is always required, and presumptive is rarely admitted; but in this case, the presumptive is by the gentleman set in opposition to the positive. However, this is not the case in fact. The PRESIDENT did give commission and instructions, and those are fully communicated to us. If he conceived we had no right to demand them, he would have told us so; if he had kept any part of them back, he would have informed us, and assigned his reasons for doing so. I presume that the PRESIDENT has acted the part of a candid, honest man; the gentleman presumes the reverse. The suggestion that this House, which has the exclusive right of originating the appropriation of money, has no right to be informed of the application of it, is so novel and extraordinary, so inconsistent with every idea of propriety and good government, that it requires no reply. Did the Secretary apply the money borrowed in Europe agreeably to the legal appropriations and the instructions of the PRESIDENT? No, he did not; though some of the gentlemen do not acknowledge this, yet the Secretary has clearly acknowledged it himself, and has filled his reports with labored and ingenious apologies for so doing. He has suggested a variety of motives, and taken infinite pains to charm us with the mighty public advantages resulting from his doing so. He acknowledges combining the loans, and directing the application of them, in the very offset, in a way contrary to law; he acknowledges having drawn to this country, and applied in Europe, to uses for which other moneys were appropriated, near $3,000,000. Out of this he has paid upwards of $400,000 of the French debt, to St. Domingo. I do not complain of paying the interest due in Europe out of the money drawn here. The gentlemen apply the force of their arguments, with great attention, to support or apologize for this part of the Secretary's conduct, as if against this only the charge in the resolution lay. But we do not object to applying that money in Holland, which ought to have been brought here, if the money which, according to the appropriation, should have gone to Holland, had been put to the use here for which the other was intended. A simple exchange of money for the purposes of conveniency or economy, is properly one of those cases to which ministerial discretion may safely be extended; but the question before us is, the money has not been replaced. The amount of money has not been applied to the uses intended; consequently, the appropriation has been disregarded. It is acknowledged that though there were upwards of $1,300,000 of the Domestic Sinking Fund, and upwards of $2,300,000 drawn from Europe, besides the moneys applied to the relief of St. Domingo; yet, when these inquiries began, there was not $1,000,000 applied to the redemption of the public debt, and even yet the whole of the domestic appropriation has not been applied to the Sinking Fund, notwithstanding that the public debt is now, and has for some time been under par. We have it on record that the Secretary never informed the commissioners of the drafts he made on Europe, although the fund was exclusively to be at their disposal. Mr. GILES rose.--He was sensible that he stood in a peculiarly delicate situation, in which nothing short of the public good could have induced him to place himself. If a public and highly responsible officer had violated the laws, it was necessary that he should be called to an account for it; and to determine whether in the instances before the House, he had been guilty of that violation, it is necessary to compare the testimony with the facts alleged in the resolutions before the committee. He first adverted to the law authorizing the PRESIDENT OF THE UNITED STATES to borrow twelve millions of dollars for the purpose of paying the foreign debt. On this, he remarked that the authority of borrowing was expressly given to the PRESIDENT, no doubt, with an eye to the personal virtues of the character who fills that office; the loan is also directed to be made solely for the purpose of paying the public debt. Here he remarked, that in every appropriation law, the appropriation is always emphatically mentioned, which is an evidence that the Legislature intend to remain the sole judges of the applications of money. He read a letter from the Secretary of the Treasury, who was employed by the PRESIDENT to negotiate this loan, to Mr. Short, the Secretary's foreign agent for this purpose, dated the 9th of May, 1791, in which the Secretary informs Mr. Short, that one million and a half of the money he had obtained on loan, was destined for France; of which sum he was authorized to apply immediately one million, but to reserve eight hundred thousand florins to answer such subsequent directions as he should receive from the PRESIDENT. He cited this passage to show that the million and a half which had been obtained on loan, was destined for France. To remove any doubt that might remain upon this head, he referred to a preceding letter from the Secretary to Mr. Short, dated the 13th of April, in which it is also expressly said, that of the two millions borrowed, one million and a half is intended for France, the remaining half million to wait for further directions. Having established this point, he adverted to the resolution before the committee, which says, that he applied a portion of the principal borrowed to the payment of the interest falling due upon that principal, without being authorized so to do by any law. To show this, he referred to a report of the 3d of January, containing sundry statements respecting foreign loans. That part of the report to which he alluded in proof of the fact, stated in general terms, a sum paid on account of foreign loans, and this sum was taken from the principal borrowed, and amounted to 1,833,189 florins. If his statement was accurate, the fact he wished to establish was proved. He wanted more light, he confessed, than he could collect from the Secretary's official communications. He should not go into the examination of what circumstances might have induced the Secretary to deviate from the positive injunctions of the law, or to make any remarks upon his conduct, until he had heard what gentlemen would say to controvert the fact he wished to establish. Another fact of consequence he wished to prove, viz: that part of the money obtained on loan in Europe had been drawn over, though not wanted here for any public purpose. This appeared from other papers. He turned to the instructions from the PRESIDENT to the Secretary of the Treasury, authorizing him to borrow $14,000,000, in which the Secretary is cautioned to keep in view the two several acts authorizing the loans, and the distinct conditions they contemplate. By the instructions of the PRESIDENT, the Secretary is authorized to apply the moneys. In the execution of the trust confided to him, the PRESIDENT generally directs him to employ Mr. Short to negotiate the loans, to borrow in the manner prescribed by the acts, and to discharge immediately the arrears of interest due to the French, to which purpose and to the complete payment of that debt the twelve million loan was altogether appropriated. If this money, then, was shown to have been drawn here, it was neither warranted by law nor by the PRESIDENT's instructions. The Secretary did begin to draw as early as 1790, and had continued to draw from time to time, till 1793, without giving notice of this to the Legislature. Having shown that the Secretary had drawn without authority to draw, he next proceeded to consider the purpose of those drafts. The money thus drawn for was not, he stated, applied to the purchase of the public debt. No money obtained from foreign loans was thus applied until this year; the domestic resources appropriated to this object were never exhausted. These were the facts involved in the first resolution, which he wished to establish. Before he proceeded further into the discussion, he wished to hear what gentlemen had to say to controvert them. He wished to see justice done in the matter before the House; he wished justice, also, to be tempered with moderation and mercy; and if gentlemen could show the necessity for deviations from positive law, which he had endeavored to point out, it would exonerate the Secretary from a very great share of blame. Mr. BARNWELL called for the reading of certain parts of the two acts authorizing the loans. One of the 4th of August, authorizes a loan of $12,000,000, to be obtained without limitation as to the interest, for the purpose of paying the foreign debt; the other is of the 12th of August, for $2,000,000, the interest to be not more than five per cent., and for the purpose of reducing the domestic debt. Mr. SEDGWICK, to disprove that the drafts alluded to have been made without the knowledge of the Legislature, called for the reading of the PRESIDENT's Speech to both Houses on the 8th of December, 1790, and a subsequent report of the Secretary of the Treasury to the same point. By this, it appeared that the power of borrowing, having been exercised under the joint authority of the two acts, the Secretary states a difficulty that had occurred to him on the subject of the drafts alluded to. The money having been obtained on an interest of five per cent., exclusive of douceurs, he wished the Legislature to determine whether it might strictly be considered as borrowed under the second act, which limited the interest at five per cent. This was sufficient, he conceived, to show that the Legislature were not ignorant of those drafts, and an act was passed solving the Secretary's doubt, and sanctioning his construction of the law. Mr. GILES remarked that he had drawn before that sanction was obtained. Mr. FITZSIMONS observed, on the first charge in the resolution, that, as the interest of the money borrowed in Europe is payable where borrowed, it was economical in the Secretary to pay that interest with moneys there, which were to be drawn here, and replace the sum by taking the amount from the funds here destined for that payment. A financial operation of this nature is simple, and saves the trouble of drawing with one hand and remitting with the other. He conceived there was no just foundation for the first charge. Mr. LAURANCE said, that when the resolutions calling for information from the Treasury Department were first brought forward, the public mind was impressed with an idea that there were moneys unaccounted for. This charge is now dropped, and it is honorable to the officer concerned that, after much probing, nothing is found to support it. The inquiry now is, whether a debt was paid out of this or that fund. He did not admit the fact, that it was paid out of any other moneys than what law strictly warranted. He went into a history of the subject from its origin. He stated the nature and purposes of the loans. There was nothing to prevent the PRESIDENT from consolidating the two loans, provided such an arrangement did not interfere with the purposes intended by them. The PRESIDENT employed the Secretary to obtain the loans under the joint authority of both acts, as it was found that the object could best be carried into effect by such an arrangement. The money thus borrowed became subject to the appropriations of both acts, and not exclusively for the payment of the foreign debt. Then, as part of that money was subject to be drawn here for the redemption of the domestic debt, and the interest of the loan was to be paid with domestic funds, it was perfectly reasonable to avoid further drafts and remittances to pay the debt there with money there, and replace it here with money already here. The fact stated in the first part of the resolution is, by this plain statement of the case, substantially refuted, and appears altogether unfounded; but if the fact is proved, what is implied? No injury to the interests of the community; the intention of the Legislature has been in every point fulfilled. If the Secretary had acted differently, he would have been guilty of an absurdity, and to blame for sacrificing the public interest and neglecting the spirit of a law for a strict and unprofitable observance of its letter. Mr. SEDGWICK, by adverting to the Speech of the PRESIDENT and Report of the Secretary, had shown that the Legislature had been made acquainted with the drafts, and sanctioned future ones on the same principles. The latter part of the first resolution criminates the Secretary for making them without instructions from the PRESIDENT. Even if this was the case, he did not know whether this was really reprehensible. He defended it on the ground, that the Secretary is the officer appointed by law to superintend the finances and apply all moneys agreeably to appropriations. He took a view of the subject, as stated by Mr. LAURANCE, and concluded by asking, whether, if the Secretary was found, on a critical examination, to have deviated in a trifle from the letter of the law, such a deviation was sufficient to warrant the alarm's being sounded from St. Croix to St. Mary's, and whether the precious time of the House, at the close of the session with a vast variety of business on their hands, should be taken up in so unprofitable and frivolous an investigation? Mr. GILES said, the transaction alluded to by the gentleman to controvert the fact laid down in the first part of the resolution before the committee was not immaterial, as they had endeavored to show it. It was not merely a financial operation to avoid the necessity of drawing and remitting. The truth was, that the Secretary had drawn over nearly $3,000,000. The PRESIDENT's authority was limited to $2,000,000. Mr. LAURANCE was of opinion, that if the PRESIDENT, or his agent, had drawn the whole amount of the money obtained under both loans, he could not be said to have gone beyond his authority. He was authorized to borrow $12,000,000 to pay the arrears on the foreign debt, and to modify the whole. In the execution of this trust, he might have found it advisable to draw to the country the whole of that sum. It had been found advisable to draw for part, and to pay the French by shipping produce to St. Domingo. If the money expended for supplies to St. Domingo is deducted, the balance will be found less than $2,000,000. Mr. L. contended, that the interest of the moneys borrowed was not paid out of the principal of the loan, as set forth in the first charge of the resolution before the committee. If gentlemen would attend to the history of the transaction, they would find this strictly true. This interest was paid out of the moneys borrowed for the reduction of the public debt, and not out of those intended to pay the French, and the funds appropriated for the payment of that interest were here to replace the former and be applied as those were appropriated. He referred to the PRESIDENT's Speeches at the commencement of the two last sessions, to show that the loan was obtained under the joint authority of both acts; and adverted to the act of Congress, in consequence of a doubt suggested by the Secretary, explaining that the moneys first obtained might be considered as borrowed under the act authorizing the two million loan. Having shown the first charge in the resolution to be unfounded, he turned to the second. The Secretary is accused of drawing moneys to this country without instructions. In this transaction the PRESIDENT must be considered as the principal, and the Secretary the agent, or the Secretary must be looked upon as the principal. If the PRESIDENT is the principal, and he be authorized to obtain the loans, as soon as the money is obtained it naturally falls under the direction of the financier; but if it be contended that the PRESIDENT was to have applied the moneys as well as to borrow them, then we have nothing to do with the agent; that agent is accountable to his principal, and as this principal is not called to an account by the Legislature for any improper exercise of discretion, he must be considered as having acted strictly within the law. If the Secretary is considered as the principal, (and by a strict attention to the law, he believed, it would be found so, for the PRESIDENT is by it authorized to borrow, and it is not expressed who shall apply the money,) then it was not one of the duties of the Secretary to procure the instructions of the PRESIDENT; being the principal, and consequently having the direction of the money borrowed, he is made the judge of the time of drawing, to fulfil the intention of the law. Was the money, he asked, to have remained in the hands of the banker in Europe? Since it was borrowed for the purchase of the public debt, the sooner it was drawn over the better, and the Secretary having the direction of those moneys, could do it without consulting the PRESIDENT. He proceeded to show, however, that the Secretary had by no means acted entirely without regard to the PRESIDENT's instructions. His letter to Mr. Short, which had been read, expressly says, that he is waiting for instructions from the PRESIDENT, and the only instructions brought forward clearly show, that he did not act without them. On this occasion it was not necessary, he conceived, that all the private communications between these two officers should be brought forward; indeed, many of the instructions might have been verbal, and of a private nature. Another proof lies before the committee, to show that the Secretary did not act independent of instructions. A report of the Secretary mentions that some matters relative to the loans were under consideration of the PRESIDENT OF THE UNITED STATES. This document, the gentlemen were in possession of when they framed the resolutions; and it, in his opinion, left very little ground indeed to suppose that the Secretary had acted without instructions. Mr. MERCER next rose. None of the communications from the Secretary of the Treasury had removed his suspicions relative to the transactions of that department. What had fallen in the course of the discussion, had not removed his doubts. He confessed himself more at a loss than ever to account for the conduct of that officer. To judge of the propriety of his conduct, it was necessary to consider what his duties are, and investigate whether a necessity existed to justify the drawing complained of. Gentlemen, in their arguments, had alluded to some observations that had fallen from him on other occasions expressive of his opinion, that there had been corruption in that department. This opinion he still entertained. He suggested that some irregularities had taken place as to the money appropriated to the Sinking Fund. This might be the fact, and his suspicions were sufficiently urgent to warrant him in suggesting that it might be possible. At the close of 1792, he stated there was a balance of cash in the Treasury of $2,331,182, and the bonds due in the course of the present year would produce a sum of about $2,269,000. Yet a proposition was made in the House, predicated on a total want of money in the Treasury, to borrow $800,000 in addition to the $400,000 already borrowed of the bank. [Here Mr. BOUDINOT interrupted the member, as being out of order. The Chairman, conceiving Mr. MERCER's remarks to be introductory to, and connected with the observations he intended to make on the resolution, declared him in order.] Mr. MERCER proceeded to show, by sundry statements and calculations, that there was no necessity for this loan of $800,000. The House, he said, to discharge their duty, should be satisfied how the money appropriated was applied, before they consented to repeated additional appropriations. When calls for information had been made by the House, with a view to comply with this their indispensable duty, the Secretary had thought it sufficient to balance money actually received, by calculations of sums that would probably be wanted agreeably to appropriations. Were dollars, he asked, to be balanced by absolute appropriations? Can things certain be balanced by things uncertain? Actual expenditure would alone balance actual receipt. Appropriations founded only on uncertain calculations could not show the money actually laid out. He adverted to some calculations made to ascertain the probable expenses of the War Department. [Here the member was again called to order, and was declared out of order by the Chairman.] Mr. M. confined his observations more immediately to the resolution before the committee. It had been said, that the interest paid was paid out of moneys that were to be drawn to this country, and were replaced here by funds from the domestic resources originally appropriated for that object, and that the dead letter of the law, if any part of it, had alone been violated. He contended there had been an essential violation. The sums drawn for and appropriated to reduce the public debt, were not applied to that purpose; the domestic resources appropriated to that object, never were exhausted. If this is the case, conclusions surely unfavorable to that officer must naturally follow. He proceeded to make some remarks on the question, whether the Secretary had acted under instructions from the PRESIDENT. It was disagreeable, he premised, to criminate the character of any officer. He bore a great respect for the PRESIDENT, for his virtues, talents, and services, but however grating to his feelings it might be to find fault with any part of his conduct in this matter, he was unable to discharge his duty under his present impressions, unless he avowed that he conceived that officer had violated the law, though he allowed, without intention, by not inquiring into the subject, while transacting, as it was his duty to do. He must declare that he saw no proof that the Secretary had acted under the PRESIDENT's instructions. On the contrary, he saw the reverse, there was even no presumptive proof of the fact. The House has called for information as to the extent of the authority delegated by the PRESIDENT to the Secretary. Either the Secretary has produced the proof of this authority, or he has not complied with the order of the House; it does appear that he has gone beyond it in making the drafts complained of. The PRESIDENT directed that the proceeds of the loan be immediately applied to pay the French; yet a great portion of that money was brought over here. It was said that he might have brought the whole here if he chose and paid it to the French here. This argument goes on the presumption that the PRESIDENT might do wrong without incurring blame. But the PRESIDENT expressly directed it to be paid immediately to France; and the House had no right to presume that he did direct the money to be drawn here, when proof to the contrary appears. Upon the whole, he concluded that the law had been broken in letter and substance, and that the Secretary had acted without proper instructions from the PRESIDENT. Mr. LIVERMORE observed, that the charge against the Treasury Department was at first well calculated to beget serious alarm. When misapplications of the public money are sounded in the public ear, all feel interested, knowing, that what affects the public purse, must in a degree affect the purses of each private individual. In the present stage of the subject, he was happy in being able to felicitate himself and his fellow-citizens, that even should the whole of the charges contained in the resolutions be proved, it would not appear that they had lost a farthing by the conduct so loudly complained of. What is the charge? That the Secretary has paid an interest that was justly due; why then, he presumed we should not have it again to pay. If the Secretary has paid what was due, what then is the complaint? It was surely not intended that it should not have been paid. This was not the intention of Congress; for they passed an act providing funds for its payment. The Secretary was then right to pay it. But, it is said, he paid with the wrong money. He saw no harm in not paying it with the very dollars appropriated, and approved of the operation, which saved drawing with the one hand and remitting with the other; in this there was no crime committed, no loss incurred. It appears, on the contrary, that something was gained by it. So far, then, he was clear, no law had been violated, nor was any rule of propriety departed from. He then touched upon the Secretary's disputed right to draw. He contended, that he had that right. The loans were obtained under the joint authority of the two acts. It was said that more than two millions, the amount appropriated for the Sinking Fund, were drawn over; but, he insisted, he might have drawn the other twelve millions, if it had been for the public interest so to do. The French wished to be paid here, and it being no loss, but rather a profit, to comply with their wish, where was the harm in so doing? If any public loss had been incurred owing to these drafts, then blame would lie. He concluded, by expressing his hearty approbation of the conduct of the officer who is criminated by the resolutions, and declared it as his firm intention to give them his negative. Mr. HILLHOUSE argued, that the interest paid, was not paid out of the $2,000,000 loan, and that the drafts were made agreeably to the directions of the PRESIDENT. He showed this by the documents which had been already referred to. He put in a clear point of view the propriety of avoiding the expense and risk of drafts and correspondent remittances, and concluded by giving his approbation to the conduct of the Secretary in the transactions complained of, and by expressing it as his firm belief that a majority of the committee, from the evidence before them, would undoubtedly be of opinion that the charges brought forward are unfounded. Mr. SEDGWICK rose to correct a mistake of Mr. MERCER's. The gentleman had asserted, that the Secretary had drawn on Europe, before the loan, obtained by the commissioners under the old Government, was ratified. This was not the case. The loan had been ratified in pursuance of the provisions of the act authorizing it. The PRESIDENT in his Speech, December 8, 1790, says, "that agreeably to the powers vested in him at the last session, the loans in Holland had been completed." By existing acts of the Legislature, and from express communications from the Secretary of the Treasury, it appears, that all the moneys borrowed were deemed borrowed under the joint authority of both acts, and not to be solely appropriated for the payment of the foreign debt. Mr. MERCER explained, that he had said, that the Secretary had drawn from the loan obtained under the authority of the old Government, before said loan was legalized by law. If the Legislature had the right to legalize it, they had the right to reject it. Mr. LEE next rose. He observed that as he found himself under the necessity of differing from his friend who had moved the resolution, with whom he generally agreed in opinion, and was accustomed to act, he begged the attention of the committee for a few minutes. To determine whether the Secretary of the Treasury had acted legally, it was necessary to examine whether the authority from the PRESIDENT and his subsequent instructions authorized him to consolidate the loans under the acts of the 4th and 12th August, 1790. On this question Mr. L. observed, that there seemed to be no objection to such a construction, except that which arose from the difference of interest allowed by those acts; that the first loan was commenced without any regular authority by a company in Amsterdam; that it received its authenticity from the acceptance of the Secretary of the Treasury. The interest and douceurs on this loan amounted to more than an interest of five per cent., which was the only premium contemplated by the act of the 12th of August. It could consequently be accepted only under the act of the 4th of August, which gave no limitation to the interest which was to be allowed. The money seemed therefore solely applicable to the payment of the foreign debt. From his report of the 24th of February, 1791, the Secretary himself seemed to have had this impression; Congress seemed also to have this impression as on the 3d of March following they passed an act authorizing the application of this loan to the object of the act of the 12th of August, 1790. After the 3d of March, 1791, therefore, the Secretary of the Treasury had a right to bring this money to America for the purposes of the Sinking Fund. The interest of the foreign debt becoming due, for which domestic revenues were pledged, he thought it prudent to pay that interest out of this loan, relying on the domestic revenues to replace it for the purposes of the Sinking Fund. This was a mode of bringing the money here, and he was not limited in his discretion as to the mode; and therefore had a right to follow that which appeared to him most advantageous. The paying of the foreign interest out of this loan was made after the 3d of March, 1791. Mr. L. had no doubt as to the legality of all the proceedings relative to moneys drawn to this country subsequent to the third of March, 1791; even the moneys borrowed for the foreign debt, because a higher interest than five per cent. was stipulated for, on any of the subsequent loans, and because the PRESIDENT, in his instructions to the Secretary, leaves the mode of paying the foreign debt to his discretion. If he judged it for the advantage of the United States to bring this money, in the first place, to America, the legality of such a measure cannot be questioned, though the economy and wisdom of it may not be admitted. On this point, Mr. L. acknowledged, that he had not time to examine minutely all the statements and reports of the Secretary to judge of those exigencies which induced the drawing of all the money which had been drawn to America. Whether it had been consistent or not with the interest of the United States, Mr. L. was of opinion, that the Secretary had legally a right to bring all the money he had drawn for to America, except what was drawn prior to the third of March, 1791. This money was drawn out of the first loan; it was drawn, as declared, for the Sinking Fund; the first loan, for the reasons before stated, could not be applied, and consequently, till the act of the 3d of March, 1791, this money could not be legally drawn for the Sinking Fund. Perhaps this act caused the irregularity of this proceeding. But is not the Secretary of the Treasury subject to blame? Mr. L. observed, he thought he was not altogether free from it. At the meeting of Congress on the 8th day of December, 1790, the PRESIDENT in his Speech informed both Houses, that the first loan had been accepted, and that the Secretary of the Treasury had directions to lay the particulars before them. But what did he do? On the 15th of December following, he began to draw money on account of this loan to America, for the Sinking Fund; though from his report on the 24th of February, 1791, he appears to have had a doubt as to the legality of this proceeding. He delayed giving information, in conformity to the PRESIDENT's Speech, till a few days before the dissolution of Congress. This conduct, Mr. L. said, seemed to argue a distrust of the Legislative Councils. Mr. L. dilated on the necessity of the purest and most confidential communication between the Secretary of the Treasury and the Legislature, and said, though he could not agree to the resolution then under consideration, there was one, subsequent to it, relating to this point, which he was sorry to find himself under the necessity of voting for. Mr. BOUDINOT considered it as the duty of the committee in the discussion of the charges brought forward to confine themselves strictly to the points in question. The present examination differed from ordinary Legislative business. Specific charges are brought forward against a highly responsible officer; the facts brought forward to support those charges should be understood and considered, to form a right judgment on them. The Secretary is charged with having violated a law, by paying the interest due on a loan out of the principal of that loan. He went into some statements and calculations to show that the money paid on account of foreign loans, as stated in official documents, could not have been paid on account of interest of the late loans, from the disproportion of the sums. He need say nothing more, he conceived, to show that the first charge in the resolution immediately before the committee is unfounded. If what he said was not sufficient to disprove it, he asked where is the evidence to support it? He next turned to the second charge in the resolution, viz: that the Secretary had made the drafts complained of without the PRESIDENT's instructions. Here he noticed a mistake some gentlemen had fallen into, when speaking of the call of the House for information. This was a request to the PRESIDENT, and not an order to the Secretary. From the information communicated in consequence of this call, it did not appear that the Secretary had acted without, or contrary to instructions, and he insisted, that he ought to be presumed innocent till he was proved guilty. He argued that the authority given to the PRESIDENT in the subject put it in his power to draw the whole fourteen millions to this country, if he thought fit; it could not, therefore, he contended, be insisted, that the amount of the drafts had passed the limits of the authority given. It is not denied, he proceeded, that there was a right to draw for the two millions appropriated for the reduction of the public debt. Well, it has appeared, on a certain occasion to the House, that our Minister in France negotiated a contract with the National Assembly, or their officers, for the payment of $800,000 of the debt due them, here; then certainly, the exigency of the case required that this sum should be drawn here for the purchase of provisions for St. Domingo, in which this payment was to be made. Here then was a positive necessity of drawing for $2,800,000 and as a discretionary power in the subject had been left to the Executive, they might have found it advisable, perhaps, under an expectation of additional payments in the same manner to have drawn over as much more as they might have thought prudent. He adverted to the application of the Secretary to the Legislature to declare whether the loan obtained, for an interest of five per cent., exclusive of douceurs, might be considered as borrowed under authority of the $2,000,000 act. It was his (Mr. BOUDINOT's) opinion at the time, that no explanatory law was necessary; and that the Executive had power to construe the act in that sense. This was also the Secretary's opinion, and in consequence of that opinion he had drawn bills. He thought it however right to apply to the House and have every doubt removed, and the Legislature sanctioned his construction of the law. It had been said, that if the Legislature had a right to confirm, they also had a right to reject the construction put upon the law by the Executive. This, he conceived, they would not have been warranted in doing, after a contract agreeably to that construction had been made; such a proceeding must have involved a breach of contract. It had been repeatedly asserted and strenuously insisted on, that the Legislature were totally in the dark, as to the drafts from Europe. To disprove this assertion, he read several items from sundry reports of the Secretary, where sums received on account of loans are specified. It had also been said, that there was no evidence that any part of the loan was applied to or intended for the purchase of the public debt. This also appears unfounded, from a note dated 25th of August, 1790, laid before the Trustees for purchasing the public debt, which expressly mentions, that a loan had been negotiated, part of which was destined for the purchase of the public debt, and that some points relative thereto were before the PRESIDENT for his approbation. This also showed that the PRESIDENT had knowledge of such intentions. His Speech, and the Report of the Secretary, in consequence of part of that Speech, which had been so repeatedly referred to, also unequivocally prove this point. He recapitulated the heads of his arguments, and concluded, that if nothing further could be brought in support of the charges now before the committee, they should have his decided negative. Mr. MADISON.--He wished not, he said, to waste a moment of the small portion of time left, by regretting its insufficiency for a full discussion of the subject before the committee. But he thought it due to truth, and to the honorable and independent motives of his colleague (Mr. GILES) in proposing the resolutions, to remark, that the lateness of the day to which they had been postponed did not justify the strictures which had been made on it. If the delay was not to be considered as unavoidable, some blame, at least, would fall elsewhere. The inquiries in which the whole matter originated, had been moved by his colleague, and passed the House some weeks ago. The reports in answer to these inquiries had not been finally made and printed a single day before the present resolutions were submitted to the House. He admitted that it might have been impracticable to report the information called for, as early as was desired by the House. He was sensible of the anxiety that would be naturally felt by the officer called upon, to present every consideration that might place his conduct in the most favorable point of view; yet, with all these allowances, it was impossible to deny that the reports contained things which did not belong to them, and therefore consumed time which, belonged to the period for discussion. He would mention one instance on which there could not possibly be a difference of opinion, viz: the vindication, formally undertaken by the Secretary, of the policy of borrowing money abroad. Whether his policy was right or wrong, the Legislature had themselves decided in favor of it; and it was the duty of the Secretary, in complying with the orders of the House, to inform the House how the law had been executed--not why it had been made; to explain his own conduct,--not to justify that of the Legislature. It had been asked why the call for information had not been sooner made? The answer was obvious and simple. It was not sooner perceived by the House, that there was such a necessity for it. The want of information was first suggested by the bill for paying $2,000,000 to the Bank, although $200,000 only were immediately due, and for authorizing another foreign loan to the amount of $2,000,000. From the dawn of light thrown by some circumstances incident to the occasion on the darkness in which the House had remained, proceeded those doubts and inquiries which had led to the information now possessed. His colleague had great merit in having brought about this development. He had rendered a service highly valuable to the Legislature, and no less important and acceptable to the public. One good effect of the information had been, that it prevented the passage of the bill for borrowing $2,000,000 as an anticipated payment to the Bank. The bill had dropped from the hand of its patron with the first light that broke in upon the House. What other measures would have been prevented or varied, if a like knowledge of our funds and finances had been sooner obtained, was matter of serious consideration. Another consequence of the reports, taken together, was, that the face of them presented to his colleague an evidence of the charges contained in the resolutions. Whether, at so late a day, it was best to leave the subject as exhibited by the various documents in print, for the examination and opinion of the public, or to press it on the consideration of the House, was a point which every member had a right to decide for himself. His colleague had viewed the positions stated in his motion as too important to be suspended, and as supported by such clear and authentic proofs, that a small portion of time would suffice for the subject. Under this impression, what was his right became his duty; and he had discharged it by offering his resolutions to the House. As the House had refused to commit the two introductory resolutions, which established the rule of judgment to be applied to the case, and the last also, which declared the inference to be drawn, the task of the committee was limited to a simple inquiry into the facts stated. They were to make out and report a special verdict of these, and leave it to the House to pronounce the proper judgment arising from them. The resolution immediately before the committee imported, "that the Secretary of the Treasury had violated the law passed on the 4th of August, 1790, making appropriations of certain moneys," first, "by applying a certain portion of the principal borrowed to the payment of interest on that principal;" secondly, "by drawing part of the same moneys into the United States, without the instruction of the PRESIDENT." The questions here are questions of fact; and whatever quality may be attached by different gentlemen to the several facts, it would seem as if the facts themselves are too clearly supported by the Reports of the Secretary, and the documents attending them, to be denied or controverted. The law of August 4, 1790, authorized the PRESIDENT to cause to be borrowed $12,000,000, to be applied to the Foreign Debt of the United States. A subsequent law of August 12, 1790, authorized another loan of $2,000,000, to be applied to the Domestic Debt of the United States. A power to make these loans was delegated, on the 28th of August, 1790, to the Secretary, by a general commission, in the usual form, referring to the several acts above mentioned, but without any further discrimination of the loans to be made. As the law, however, for applying loans to the foreign object was prior in date, the presumption would rather be that it was to have a priority of execution; that the first money borrowed was to belong to the first object provided for. It was unnecessary, however, to dwell on this consideration, because the PRESIDENT had removed all uncertainty by the precise explanations and instructions which accompanied the power to the Secretary, and which ought, in truth, to be deemed a part of the commission. The instruction having been more than once read to the committee, he would content himself with referring to it. The part referred to is in the following words: "I do hereby make known to you on the execution of the said trust, you are to observe and follow the orders and directions following, viz: Except where otherwise especially directed by me, you shall employ in the negotiation of any loan or loans which may be made in any foreign country, William Short, Esq.; you shall borrow, or cause to be borrowed, on the best terms which shall be found practicable, and within the limitations prescribed by law as to time of repayment and rate of interest, such sum or sums as shall be sufficient to discharge, as well all instalments or parts of the principal of the foreign debt, which are now due, or shall become payable to the end of the year 1791, as all interest and arrears of interest which now are, or shall become due, in respect to the said debt, to the same end of the year 1791. And you shall apply, or cause to be applied, the moneys which shall be so borrowed, with all convenient despatch, to the payment of the said instalments, and parts of the principal and interest, and arrears of interest of the said debt. You shall not extend the amount of the loan which you shall make, or cause to be made, beyond the sum which shall be necessary for completing such payment, unless it can be done upon terms more advantageous to the United States, than those upon which the residue of the said debt shall stand or be. But if the said residue, or any part of the same, can be paid off by new loans, upon terms of advantage to the United States, you shall cause such further loans as may be requisite to be made, and the proceeds thereof to be applied accordingly. And for carrying into effect the objects and purposes aforesaid, I do hereby further empower you to make, or cause to be made, with whomsoever it may concern, such contract or contracts, being of a nature relative thereto, as shall be found needful and conducive to the interest of the United States." By this formal act, issued along with the commission to the Secretary, the PRESIDENT designated the object to which the loans to be made were to be applied; and by declaring the object to be that provided for by the act of August 4, 1790, he expressly placed the loan under the authority and provision of that act; so that the moment the money should be borrowed, it was to stand legally appropriated to its specified object--as much as if another law authorizing another loan for another purpose, had not existed. This arrangement of the PRESIDENT was the more proper, not only because provision for the payment of the foreign debt had been the primary object of the Legislature, and the payment of the French debt the anxious wish of their constituents, but because payments to France were no longer matter of option, but of strict and positive obligation on the United States. In proof of this, he stated that the debt of France, calculated to the end of 1791, and computing the livre at 5 4-10 to a dollar, amounted to $4,814,814, whilst the payments actually made, computing the florin at 2-1/2 to a dollar, amounted to more than $3,372,717, leaving, as a balance, at the end of 1791, $1,442,097. Adding to this balance the instalments due for 1792, amounting to $638,888, there were to be paid within that year $2,080,985. The entire payments, however, composed of $656,500 in Europe, and $726,000 put to the account of St. Domingo, (although $444,263, 83 were actually paid,) amounted to $1,382,500, leaving due at the end of 1792, a balance of $698,485. Here Mr. M. adverted to and read a paragraph in the Report of the Secretary, page 16, where in allusion to the measure of drawing bills in the latter part of 1792, he says: "I feel myself the more at liberty to do it, because it did not interfere with a complete fulfilment of the public engagements in regard to the foreign debt. It could be done consistently with a full reimbursement of all arrears and instalments which had accrued on account of that debt." Mr. M. observed, that, as he could not reconcile this paragraph with the calculations which he had stated, and which were drawn from official documents, he must regard it as an unquestionable error, produced by some hasty view of the subject. Returning to the commission, Mr. M. repeated that all the money which that instrument, defined and qualified by the instruction annexed to it, authorized the Secretary to borrow, was actually and specifically appropriated to the payment of the foreign debt, and under circumstances particularly urgent, in relation to a part of it. In what manner had this trust been carried into execution? It was to be observed, with regret, that, on the very day on which the commission and instruction issued from the President, the Secretary commenced his arrangement for diverting part of the loan, accepted and ratified by virtue of his commission, to a purpose different from that specified and required by his instruction. That a fact of so extraordinary a complexion might be grounded on the most unexceptionable proof, Mr. M. said he should take the liberty of supporting it by the authority of the Secretary himself. Here he read from the Secretary's letter, dated August 28, 1790, to the Dutch houses from whom the loan had been accepted, the following passages, viz: "I should also wish, for particular reasons, that the business may be so regulated as to give it the form of two loans--one for two millions under the first act, and the other for one million under the second. But neither about this am I so solicitous as to be willing that it should constitute an embarrassment." "I destine a million and a half of this sum as a payment to France, under the direction of Mr. Short, our Chargé d'Affaires at that Court, whose orders for that purpose you will please to follow." The aspect here presented by a comparison of the several documents, was singular and remarkable. The subordinate officer appeared in direct opposition to the Chief Magistrate. The agent was seen overruling, by his own orders, the orders of his principal. The language of the President was, "By virtue of the power vested in me by law, I destine the money to be borrowed to the discharge of the instalments and interest of the foreign debt." The language of the Secretary was: "I destine a part of the money only to that purpose, and a part to be brought to the United States for other purposes." He left every member to make his own reflections on the subject. He would only observe, in general, that it demonstrated the truth asserted in the proposition, that the Secretary had violated both the law of August 4, 1790, and the instruction of the President relating to it. He then proceeded to a more distinct view of the two points particularly stated in the resolution. The first was, "That a certain portion of the principal borrowed under the act of August 4, 1790, had been applied to the payment of the interest falling due on that principal." As the fact would not, he presumed, be denied, he forebore to quote that part of the documents which admitted and authenticated it. He would, however, premise to any observations on it, a cursory view of the nature of appropriations. It was unnecessary to repeat the emphatic remarks on this subject, which had fallen from the member from Pennsylvania, (Mr. FINDLAY.) It was sufficiently understood. He concluded that appropriations of money were of a high and sacred character; that they were the great bulwark which our constitution had carefully and jealously established against Executive usurpations. He meant only to take notice of the different plans into which appropriations might be moulded, and of the particular operation which ought to be given to them. One of the plans was that of appropriating specified funds to specified objects, in which the supposed certainty of the funds was adjusted to the supposed importance of the objects. The other plan formed all the branches of revenue into an aggregate fund, on which the several objects should have a priority of claim according to their superiority of importance. It was evident that in both these cases, the Legislature alone possessed the competent authority. The exclusive right of that department of the Government to make the proper regulations, was the basis of the utility and efficacy of appropriations. There was a third question incident to the doctrine of appropriations, viz: Whether, under specific appropriations, such as had been adopted by Congress, the Executive authority could, without special permission of the law, apply the excess of one fund to the aid of a deficient one, or borrow from one fund for the object of another. On this question, there might perhaps be a difference of opinion. He would only remark, that, admitting such a discretion to be implied in the trust of executing the laws, it would still be requisite that the due sanction of the Executive should be given, that a regular account should be kept between the different funds, and that all advances from one to the other should be replaced as soon as possible. This was equally necessary to the preservation of order in the public finances, and to a proper respect for the authority of the laws. In the present case, it did not appear that the moneys taken at different times from the loans designated by the President, and thereby placed under the appropriation of the act of August 4, 1790, to the foreign debt, had ever been replaced. It did not appear that any such replacement was regularly planned or provided for. It was particularly worthy of observation, moreover, that the only use within the United States for which any loan in Europe could be assigned, was that of the Sinking Fund; that the Trustees of this fund had never been even informed of the drafts; that if the moneys drawn had been carried to the Sinking Fund, the limited sum of $2,000,000 would have been exceeded; and that the statements and accounts had, in fact, been so wound up, as mentioned by the Secretary, that not a single dollar of the money laid out in purchasing the public debt had been charged on loans drawn into the United States, although such was the only purpose to which they were legally applicable, and such the principal reason assigned for making the drafts. He did not go into a particular proof that the sum drawn into the United States, after subtracting the whole sum placed to a foreign account, exceeded the sum of $2,000,000, because the fact had been conceded on the other side, particularly by the statement of the member from Connecticut, (Mr. HILLHOUSE.) Thus it appeared clearly, in confirmation of the first point, that the application of a certain portion of the principal borrowed in Europe, to payment of the interest, was not a mere transposition of moneys, to prevent the sending them backwards or forwards, nor an advance of money from an overflowing fund in favor of a deficient one; but an absolute diversion of appropriated money, and consequently a violation of the law making the appropriation. The second point in the resolution related to the drawing of moneys into the United States without the instruction of the President. This point had been fully established by the documents and explanations applied to the first. They had done more: they had demonstrated that the instructions of the President, which dedicated the loans to be made under his commission to a foreign object, were an express prohibition of drafts for any domestic object. It was sufficient, therefore, to refer to the instructions of the President, and to the contradictory steps taken by the Secretary. Two attempts had been made to elude the force of these official proofs. The first appealed to the President's Speech at the opening of the session in 1790; to the Report of the Secretary, made in consequence of it, to the House; and to the supplementary act of Congress passed in conformity to the Report. Had the circumstances involved in this transaction been attended to by those who seemed to rely on it, Mr. M. was persuaded that a reference to it would never have been made by gentlemen on that side. As they had thought fit, however, to draw arguments from that source, it was proper to give an answer to them; and the best answer would be a naked statement of facts. The instruction of the President to the Secretary was given, as has been seen, on the 28th of August, 1790. The letter of the Secretary contravening this instruction, was dated, as has also been seen, on the same 28th day of August, 1790. The actual drawing of bills by the Secretary commenced the 15th of December, 1790. The law now pleaded in justification of the conduct of the Secretary, passed on the 3d of March, 1791. There are other facts material to a correct and full view of the subject. The Speech of the President was delivered on the 8th of December, 1790. It briefly informed the two Houses that "a loan of 3,000,000 of florins, towards which some provisional measures had previously taken place, had been completed in Holland," and "that the Secretary of the Treasury had discretion to communicate such further particulars as might be requisite for more precise information." The consequent Report of the Secretary, recommending the provision in the supplementary act, was not received till the 25th of February, 1791--six days only before the constitutional dissolution of the House. In the interval between the Speech of the President and the Secretary's Report, he had proceeded to draw bills to the amount of 793,392 florins. His report, notwithstanding what had been said of it, contained not a word from which it could be known that a single florin had been actually drawn over to the United States. The other attempt to elude the evidence before the committee, recoiled with equal force on the gentlemen who had hazarded it. In the report lately made by the trustees of the Sinking Fund, is a statement laid before them by the Secretary, in which it is noted "that the acceptance of the loan of 3,000,000 of florins, and the application of one-third of it to the purpose of that fund, was under the consideration of the President." From this fact, it had been inferred, not only that the Secretary had withheld no proper information from the Trustees, but that the result of the President's deliberations on the subject had varied the purpose signified by his first instructions to the Secretary. It happened, however, most unfortunately for the gentlemen who exulted in this argument, that they had entirely overlooked the dates of the two papers. The paper laid before the Trustees, and alleged to have explained the final purpose of the President, was dated on the 25th of August, 1790. The paper relied on by the other side, as the final, as well as the most formal, designation of the will of the President, was dated the 28th of August, 1790. The gentlemen, therefore, instead of the inference they had made, should have reversed their premises, and joined with their opponents in concluding that the President was led by a consideration of the subject, not to do what the Secretary, in his note to the Trustees, seemed to anticipate, but what had been evinced by the President's own act of posterior date. The second point, then, as well as the first, rests on the most solid proofs, taken from a collective view of authentic documents. Much has been said on the necessity of sometimes departing from the strictness of legal appropriations, as a plea for any freedoms that may have been taken with them by the Secretary. He would not deny that there might be emergencies, in the course of human affairs, of so extraordinary and pressing a nature, as to absolve the Executive from an inflexible conformity to the injunctions of the law. It was, nevertheless, as essential to remember, as it was obvious to remark, that in all such cases, the necessity should be palpable; that the Executive sanction should flow from the supreme source; and that the first opportunity should be seized for communicating to the Legislature the measures pursued, with the reasons explaining the necessity of them. This early communication was equally enforced by prudence and by duty. It was the best evidence of the motives for assuming the extraordinary power; it was a respect manifestly due to the Legislative authority; and it was more particularly indispensable, as that alone would enable the Legislature, by a provident amendment of the law, to accommodate it to like emergencies in future. In the proceedings falling under the present inquiry, no necessity appeared for the liberties which had been taken, the money appropriated in Europe being more wanted there than at home. It appeared that the instructions of the Supreme Executive, instead of warranting those liberties, had precluded them; nor had the proper explanations been disclosed in due time to the Legislature. To place the subject in a more distinct point of view, it was proper to advert to the precise authorities and duties of the Secretary, as his office is defined by the act establishing the Treasury Department. For this purpose, Mr. M. read the second section of that act, which is in the words following: "That it shall be the duty of the Secretary of the Treasury to digest and prepare plans for the improvement and management of the revenue, and for the support of public credit; to prepare and report estimates of the public revenue and the public expenditures; to superintend the collection of the revenue, to decide on the forms of keeping and stating accounts and making returns, and to grant, under the limitations herein established, or to be hereafter provided, all warrants for moneys to be issued from the Treasury, in pursuance of appropriations by law; to execute such services relative to the sale of the lands belonging to the United States as may be by law required of him; to make report and give information to either branch of the Legislature, in person or in writing, (as he may be required,) respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office; and generally to perform all such services relative to the finances as he shall be directed to perform." This establishment of the office evidently had no reference beyond the case of superintending the regular and ordinary collection of the revenue, and granting warrants for moneys issued from the Treasury, in pursuance of appropriations by law. The case of loans, as an occasional and extraordinary resource, was left to be provided for by particular laws for the purpose. The authority, with respect to the loans in question, was accordingly committed to the PRESIDENT, in order to secure for so special a trust, the highest responsibility to be found in the Government. And when it was considered that the whole sum contemplated was no less than fourteen millions of dollars, and when the latitude as to the terms and contracts was combined with the vastness of the sum, it might well be questioned whether so great a power would have been delegated to any man in whom the Legislature and the people of America had less confidence than they so justly reposed in the existing Chief Magistrate, and whether an equal power will ever be committed to a successor. This distinction between the case of ordinary revenue and that of loans is not only consonant to the actual policy of our laws, but is founded in obvious and solid considerations. In the collection and disbursement of the ordinary revenues arising from taxation, the business flows in official channels, is subject in every stage to official checks, and the money, being in constant influx and efflux, nowhere accumulates in immense sums. The case of loans is, in all these respects, different. In settling the terms and arranging the negotiations, there is always an important discretion involved. When the loans are foreign, as well as great, regulations concerning the bills of exchange form another occasion where great latitude is implied in the trust; whilst the magnitude of the sums, falling under the same direction at the same moment, present a further and material variance between the two cases. The tendency of these observations is to show that, as the permanent law establishing the Treasury Department does not extend the authority of the Secretary to the case of loans and as the law authorizing loans exacts, for special reasons, a responsibility from the PRESIDENT himself, the authority of the Secretary, in executing the loans, and the appropriation of them, must be derived from the PRESIDENT; and, consequently, where that authority fails, there can be no resort to the law establishing the department, much less to any general discretion incident to his official character. It is evident that the PRESIDENT, although no doubt guided by the most proper considerations in employing the agency of the Secretary of the Treasury in the business of the loans, might, if he had judged fit, have substituted the agency of another; and that, whatever agency he might prefer, his own instructions would always regulate the extent and exercise of the power conferred. The want of any apparent authority from the PRESIDENT had led several gentlemen to insist on presumed authorities, superseding the instructions joined with the commission to the Secretary. But here, again, the fair inference was to be reversed. A communication of the authorities given by the PRESIDENT to the Secretary, as to the application of the foreign loans, had been expressly requested by the vote of the House. It was not to be supposed that the Secretary, if he had received further authorities or instructions, would have failed to produce them, or to refer to them, in the justification of his conduct. Far less could it be presumed that the PRESIDENT, if he had given any superseding authorities or instructions, would not have caused them to be communicated to the House, or that he would have suffered a partial communication to mislead the House into an error as to so important a fact. The PRESIDENT was the last man in the world to whom any measure whatever of a deceptive tendency could be credibly attributed. Thus far (said Mr. M.) his observations had departed as little as possible from the question in its strictest sense. He should now avail himself of the opportunity afforded by the terms of the last clause, which spoke of drafts generally, to take a more particular notice of those recently made; in doing which, he considered himself safe within the Rules of the House, which were so rigorously enforced against the affirmative side of the question. The whole amount of foreign loans transferred directly or indirectly to the United States appeared from the several statements to be about $3,000,000. The amount of the direct drafts was $2,304,769 13. Of the drafts made since the 16th of April, 1792, and sold by the bank, the proceeds now in the bank, or payable into it, before the 1st of April next, amount to $1,220,476 01. Of this sum $510,000 have been drawn in the course of the present session in Congress. With respect to the times and the amount of these drafts, hitherto absolutely unknown to the Legislature, because the account of them had remained in the books of the bank without ever appearing in the books of the Treasurer, Mr. M. confessed that he had found no explanations that were satisfactory to him. He had looked through all the reports and all the communications before the House, without discovering either that they had been made by the authority or with the knowledge of the PRESIDENT, or had been required for, or applied to the purchase of, the public debt, or had been ever communicated to the Trustees of the Sinking Fund, who had the direction of such purchases, or that they were the effect of any necessity that could justify them. And if there was no evident necessity for the proceeding, it was the more to be lamented that, whilst we were every where sympathizing with our allies in their arduous struggles for liberty, and echoing, from every part of the Union, our congratulations and good wishes, the pecuniary succors so critically necessary to their cause, and the most substantial proof of the sincerity of our professions, should be silently withdrawn across the Atlantic from the object for which they were intended--succors, too, which were not merely a tribute of gratitude, of generosity, or of benevolent zeal for the triumph of liberty, but a debt moreover of strict and positive obligation, for value acknowledged and received. In contemplating the subject in this point of view, he felt a pain which he could not easily express, and to which, he persuaded himself, the breast of no other member could be a stranger. Laying aside, however, all these unfavorable considerations, the important question still remained, why the Legislature had been uninformed of the moneys so unexpectedly drawn into the bank, and to so very great an amount? If the drafts had received every requisite sanction, if they had been produced by the most justifiable causes, the existence of $1,220,476, in a situation so different from what had been contemplated, was a fact which the Representatives of the people had a right to know, which it was important to them and their constituents that they should know, and which it was the indispensable duty of the officer charged with it to have made known. This omission was the more remarkable when considered in relation to the measure above mentioned, of paying off at once the whole sum of $2,000,000, payable to the bank by instalments in ten years. A bill for this purpose had been introduced, and was on its passage; the object of it had been patronized by a report of the Secretary not long since made. In one of his last reports he expressly states, among the inducements to such extensive drafts of money from Europe, that they were made "with an eye to placing within the reach of the Legislature" the means necessary for this object. Was it not extraordinary, was it not unaccountable, that so important a measure should be recommended, and be actually introduced, and that money otherwise appropriated in Europe should be transferred to this country and deposited in the bank, in order that it might be within the reach of being applied by the Legislature to that measure, and yet that no disclosure should be made to the Legislature of that fact that the money was so drawn and lay at the bank, within their reach, to be so applied? If any thing could heighten astonishment on this occasion, it must be the reason assigned by the Secretary for any obscurity that might have hung over our finances--"that, till the last resolutions, no call had been made on the department which rendered it proper to exhibit a general view of the public moneys and funds, or to show the amount and situation of such as were unapplied." Mr. M. would not decide that the Legislature was free from blame in not using more full and efficacious means of obtaining such information as would have removed all obscurity. But, whatever degree of blame might fall on them, it never could be admitted that their calls on the department had furnished no proper occasion for exhibiting a full view of the public finances. He referred generally to the various resolutions, which, without the least force of construction, would have extended to every proper article of information. He reminded the committee of the latitude of reports under certain other orders of the House, and asked whether less freedom of construction was to be allowed when information was to be given, than when power or discretion was to be exercised? But independently of this view of the matter, Mr. M. held it to be clear and palpable that the very situation of the money afforded an occasion which rendered it proper that the House should be informed of it. If a liberty could be taken of removing money from Europe, where it stood appropriated by law, to this country, where there was no legal object that required it, and with an eye, as was stated, to an object to which no money was applicable, without the authority of the Legislature, how could it possibly be supposed improper to take the further liberty of communicating what was done to the Legislature? He concluded with recurring to the particular form in which the subject presented itself to the committee, and repeating that, whatever quality might be attached to the facts charged, or however improper it might be thought by some to proceed in haste to any affirmative decision on them, it appeared irreconcilable with the evidence which had been produced, to decide, by a negative vote, against the truth of the facts. Mr. AMES prefaced his remarks on the subject before the committee by some observations on the nature of the charges brought forward. He was happy that they were determinate, and conceived that the defence could be crowded in a nutshell. As to the first charge in the resolution immediately before the committee, he had seen no proof in support of it brought forward. It is founded only on assertion, and he conceived that contra-assertion was sufficient to meet it. No authority, it was said, was given to the Secretary to obtain the loan under the blended authority of both acts. This is not one of the charges included in the resolutions before the committee, and therefore this is not the time to answer it. However, if this were fact, nothing criminal could in consequence be imputed; and, since the purposes of both laws were carried into execution, there could be no ground for saying that either was violated. He said much on the impracticability of the line of conduct which some gentlemen appeared to think ought to have been followed by the Secretary. It was impossible to keep different funds, differently appropriated, so inviolably separate as that one might not be used for the object of the other; all was right, he conceived, provided what was taken was to be replaced. He was also of opinion that the overflowing of one fund could be applied to make up the deficiency of another; and that all that is necessary is to give priority to the appropriation. The money paid in Europe for interest on the loan was said to have been improperly applied, because the fund appropriated for the purpose was here. He insisted that that money was absolutely represented here by an equal sum: and he contended that, though the interest was not paid in the identical coin appropriated, yet, by allowing a very reasonable latitude of expression, it could be said that the interest was paid with the money appropriated, for the applicability of the sums there depended on the existence of the fund here. He next turned to the second charge in the resolution; and, after showing that the natural presumption was, that the Secretary either was instructed or had a discretionary power, he then vindicated his conduct in respect to the drafts of money to this country. He did honor to the motives of the gentlemen who had instituted the inquiry, and concluded an elegant speech, by a contrasted picture of our former and present situation as a country, dwelling upon the importance of preserving harmony, and insisting on the danger of giving rise to suspicions against a highly responsible officer, and of bringing forward charges not to be supported by proof. Mr. FINDLAY.--If my hopes respecting the Government have not been equally elevated with those of the gentleman from Massachusetts, (Mr. AMES,) neither are my apprehensions so much depressed with fears. But I hope I am equally anxious for the stability and prosperity of the Government; and though we differ in opinion on this question, yet I am firmly persuaded that the part I take is the best calculated to promote the necessary confidence in Government, and secure the virtue of its administration. As the gentleman, in an elegant discourse, has explained no difficulties, nor adduced any proofs in support of his opinions, I will only add, that I believe the Government to be so well established, and so much beloved by the citizens, as not to be endangered by the House of Representatives' examining how the laws have been obeyed in the application of public money, and giving their opinions upon the result of that examination. That the Secretary has not reported fully to this House, in due time, is so much within the knowledge of every member, that it is impossible to doubt of the truth of the fact, however we may differ about the propriety of the conduct. To go no further back than last session--besides the references to the Secretary to report upon the Ways and Means, and inform the House what revenues were necessary, on the 20th of February, 1791, a standing order was resolved, directing that he should report to the House, within a few days after the meeting of the next session, "an accurate statement and account of the receipts and expenditures of all the public moneys, in which shall be distinguished the expenditures which fall under each head of appropriation, and that it shall be shown the sums, if any, which remain unexpended," &c. Were not the moneys drawn upon loan, _public moneys_, and were not those loans appropriated? Undoubtedly, they were strictly so. It is a strange evasion to say, that by these expressions only the current revenue is intended. Arguments must be scarce when this becomes necessary. It requires no refutation. On the 19th of January last, he was called upon to "lay before the House such information with respect to the finances of the United States, as will enable the Legislature to judge whether any or what additional revenues will be necessary." In consequence of the recommendations of the PRESIDENT, and the wishes of this House, to commence the discharge of the redeemable part of the Funded Debt, a reference was made to the Secretary, requiring him to report a mode for the application of the public money for that purpose; the House being assured, by the gentleman who moved the resolution, that no new tax was intended or necessary. But the Secretary, so far from informing the House how much money he had subject to his discretion, in the bank, in notes, &c., proposed a new and partial tax, as the foundation of a new system of loans. When the memorable bill to authorize another loan of $2,000,000, was before the House, a few weeks ago, we were told by gentlemen on this floor, that there was not time for argument; that the bill must be passed in three or four days, &c.; and when we wanted information, we were told by some of the friends of the bill that it was not convenient to give information there--that we might procure information elsewhere, as they had done. I confess I did not comprehend this method of legislating; but the Secretary has since explained it, in one of his reports, by complaining of the House, because the members did not go to his office and ask information, instead of requiring it to be publicly reported. Even when this favorite bill for a new loan was before the House, the Secretary did not condescend to inform us that he had, without authority, provided near a million and a half of dollars for that purpose; he did not inform us how obligingly he had drawn bills upon our bankers in Holland, to have the money put in our way. Thus, in order to anticipate the payments due to the bank, he did what he could to induce Congress to break the public faith, by repealing the existing appropriation made for securing the discharge of a debt of justice and gratitude to the French nation. From this and other instances, it appears, that however high the Secretary's regard for public credit may be, there are other considerations which have obtained a higher degree of his attention than obedience to the laws. The gentleman from Virginia (Mr. MADISON) has so clearly explained the nature of that discretion with which the Secretary is vested, and so fully proved that there was no necessity to justify a departure from the appropriations made by law, that it is not necessary for me to explain further on this head. However, I cannot help remarking, that the discretionary powers were pretty freely exercised. The drawing of bills began early indeed, and was continued to a recent period. The times of drawing fortunately corresponded with the necessities of the bank, and the power of employing agents was pretty freely used. The same agents were frequently both the sellers and the purchasers of the bills. Perhaps this was necessary: no doubt it was convenient. Probably it was safe; but who can say it will be always so. I have not said so much to prove the truth of the facts expressed in the resolution, for of this there can be no doubt--it is as clear as the sun, shining in daylight,--but, in order to prove the propriety of this committee expressing its disapprobation of a conduct so unjustifiable. That information was withheld unduly, is evident, from the lateness of this discussion; that it was obtained with difficulty, is evident, from the numerous applications we were obliged to make in order to obtain it. The House then adjourned until seven o'clock post meridian. EVENING SESSION--7 P.M. An engrossed bill making certain appropriations therein mentioned was read the third time, and passed. The bill sent from the Senate entitled "An act providing for the compensation of Ebenezer Storer," was read twice and committed. _Official Conduct of the Secretary of the Treasury._ The House again resolved itself into a Committee of the whole House on the third, fourth, fifth, sixth, seventh, and eighth resolutions contained in the motion of Thursday last, respecting the official conduct of the Secretary of the Treasury. The third resolution being still under consideration, in the words following, viz: "_Resolved_, That the Secretary of the Treasury has violated the law passed the 4th of August, 1790, making appropriations of certain moneys authorized to be borrowed by the said law, in the following particulars, viz: First, by applying a certain portion of the principal borrowed to the payment of interest falling due upon that principal, which was not authorized by that or any other law. Secondly, by drawing a part of the said moneys into the United States, without the instructions of the President of the United States." A motion was made, and the question being put, that the House do agree with the Committee of the whole House in their disagreement to the resolution, it was resolved in the affirmative--yeas 40, nays 12, as follows: YEAS.--Fisher Ames, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Jonathan Dayton, Thomas Fitzsimons, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, James Gordon, Christopher Greenup, Samuel Griffin, William Barry Grove, Thomas Hartley, James Hillhouse, William Hindman, Philip Key, Aaron Kitchell, John Laurance, Amasa Learned, Richard Bland Lee, George Leonard, Samuel Livermore, Frederick Augustus Muhlenberg, William Vans Murray, Nathaniel Niles, Theodore Sedgwick, Jeremiah Smith, Israel Smith, William Smith, John Steele, Samuel Sterrett, Jonathan Sturges, George Thatcher, Thomas Tudor Tucker, Artemas Ward, Hugh Williamson, and Francis Willis. NAYS.--John Baptist Ashe, Abraham Baldwin, William Findlay, William B. Giles, Andrew Gregg, Nathaniel Macon, James Madison, John Francis Mercer, Andrew Moore, Alexander D. Orr, John Page, and Josiah Parker. A motion was then made, and the question put, that the House do agree with the Committee of the whole House in their disagreement to the fourth resolution, in the words following: "_Resolved_, That the Secretary of the Treasury has deviated from the instructions given him by the PRESIDENT OF THE UNITED STATES, in executing the authorities for making loans, under the acts of the fourth and twelfth of August, one thousand seven hundred and ninety." It was resolved in the affirmative--yeas 39, nays 12, as follows: [The same as above.] Another motion was then made, and the question being put, that the House do agree with the Committee of the whole House in their disagreement to the fifth resolution, in the words following: "_Resolved_, That the Secretary of the Treasury has omitted to discharge an essential duty of his office, in failing to give Congress official information, in due time, of the moneys drawn by him from Europe into the United States; which drawing commenced December, one thousand seven hundred and ninety, and continued until January, one thousand seven hundred and ninety-three; and of the cause of making such drafts:" It was resolved in the affirmative--yeas 33, nays 15, as follows: YEAS.--Fisher Ames, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Jonathan Dayton, Thomas Fitzsimons, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, James Gordon, Thomas Hartley, James Hillhouse, William Hindman, Philip Key, Aaron Kitchell, John Laurance, Amasa Learned, George Leonard, Samuel Livermore, Frederick Augustus Muhlenberg, William Vans Murray, Theodore Sedgwick, Jeremiah Smith, William Smith, John Steele, Samuel Sterrett, Jonathan Sturges, George Thatcher, Thomas Tudor Tucker, Artemas Ward, and Hugh Williamson. NAYS.--John Baptist Ashe, Abraham Baldwin, William Findlay, William B. Giles, Samuel Griffin, William Barry Grove, Richard Bland Lee, Nathaniel Macon, James Madison, John Francis Mercer, Andrew Moore, Nathaniel Niles, John Page, Josiah Parker, and Israel Smith. Another motion was then made, and the question being put, that the House do agree with the Committee of the whole House in their disagreement to the sixth resolution, in the words following: "_Resolved_, That the Secretary of the Treasury has without the instruction of the PRESIDENT OF THE UNITED STATES, drawn more moneys, borrowed in Holland, into the United States, than the PRESIDENT OF THE UNITED STATES was authorized to draw, under the act of the twelfth of August, one thousand seven hundred and ninety, which act appropriated two millions of dollars only, when borrowed, to the purchase of the public debt; and that he has omitted to discharge an essential duty of his office, in failing to give official information to the commissioners for purchasing the public debt, of the various sums drawn from time to time, suggested by him to have been intended for the purchase of the public debt:" It was resolved in the affirmative--yeas 33, nays 8, as follows: [Yeas as above.] NAYS.--John Baptist Ashe, Abraham Baldwin, William Findlay, William B. Giles, Nathaniel Macon, James Madison, John Francis Mercer, and Josiah Parker. Another motion was then made, and the question being put, that the House do agree with the Committee of the whole House in their disagreement to the seventh resolution, in the words following: "_Resolved_, That the Secretary of the Treasury did not consult the public interest, in negotiating a loan with the Bank of the United States, and drawing therefrom four hundred thousand dollars, at five per centum per annum, when a greater sum of public money was deposited in various banks, at the respective periods of making the respective drafts:" It was resolved in the affirmative--yeas 33, nays 8, as follows: [Same as above.] Another motion was then made, and the question being put, that the House do agree with the Committee of the whole House in their disagreement to the eighth resolution, in the words following: "_Resolved_, That the Secretary of the Treasury has been guilty of an indecorum to this House, in undertaking to judge of its motives in calling for information, which was demandable of him, from the constitution of his office, and in failing to give all the necessary information within his knowledge relatively to the subjects of reference made to him of the nineteenth of January, one thousand seven hundred and ninety-two, and of the twenty-second of November, one thousand seven hundred and ninety-two, during the present session;" Mr. WILLIAM SMITH said, that, after the vote which had just prevailed by so considerable a majority on the preceding resolutions, the committee could not, with any propriety, criminate the Secretary of the Treasury for failing to give the information alluded to, because by that vote it had been established that the Secretary had only acted under the authority of the PRESIDENT, and conformably to his instructions. If there had been any omission to communicate information to Congress, that omission was surely not chargeable to the Secretary. But it had been already clearly shown, by documents in the possession of the House, that the necessary information had been communicated. The Treasurer's accounts, which had been from time to time laid before the House, exhibited the amount of moneys proceeding from the sale of bills, and the Secretary's report of February, 1791, conveyed full information of the drawing. It was true, there was a sum of about $600,000, the proceeds of bills which, as had been remarked by a gentleman, (Mr. MADISON,) did not appear in the Treasurer's account, but this was owing to the sales of the bills by the bank not having been closed at the time the last quarterly account was rendered, and consequently that sum could not appear in the Treasurer's account. [Mr. MADISON said, he had not meant to blame the Treasurer.] Mr. SMITH proceeded. The gentleman, however, had attributed misconduct to the Secretary, for withholding information of the amount of moneys in the Treasury accruing from foreign loans, when directed by the House, January 19th, 1792, to report whether the existing revenues were adequate to face the additional expense of the Indian war. Mr. S. could not forbear expressing great surprise at this remark of the gentleman from Virginia, (Mr. MADISON,) when he recollected what had been just before said by the same gentleman in support of the former resolution. The gentleman, on that occasion, in his attempt to disprove the right of the Secretary, _ex officio_, to superintend the moneys derived from the foreign loans, had endeavored to establish a nice distinction between the ordinary internal revenues of the country, and the resources resulting from foreign loans. The law constituting the Treasury Department, he had said, gave the Secretary power only over the revenues, which embraced only the ordinary resources, whereas loans were distinct things, the management of which was specially intrusted by law to the Supreme Magistrate, and in relation to which the Secretary could exercise no authority whatever that was not derived from the PRESIDENT. The gentleman now argued that the Secretary was blameable in not giving information of the state of these extraordinary resources, which were not within his department, when only called upon to state the amount of the ordinary revenues, which were within his department. He left it to the gentleman to reconcile this contradiction, for certainly his doctrine was erroneous on the former occasion, or it must be so now. If the moneys obtained from foreign loans were to be deemed the revenues of the country, then they fell of course under the management of the Head of the Treasury Department, and it was wrong in the gentleman to impute misconduct to the Secretary for exercising a legal authority; if, on the contrary, those moneys were viewed as an extra resource, and not within the purview of the Secretary's functions, then it was wrong to censure him for not communicating the state of those moneys, when required only to report the ordinary revenues. But though the Secretary would not have been censurable for omitting to give the information, the truth was, that the PRESIDENT's Speech of 8th December, 1790, the Secretary's Report of 25th February, and the act of the 3d of March, 1791, were conclusive proofs that the Legislature knew that the proceeds of the loans were in a train of being brought to the United States and the accounts of receipts and expenditures presented in the first week of the session, informed the House that a large sum had been drawn for, and the Treasurer's quarterly account contained further information on the subject, all which was prior to any call of the House for such information. Hence, Mr. S. deduced, that it was not a fact that the Secretary had failed to give the information, as stated in the resolution, and that had he even so failed, he would not have been censurable for a breach of an essential duty of his office. It had been said, by a member from Pennsylvania, (Mr. FINDLAY,) that the lateness of the information from the Secretary made it inconvenient to go into an inquiry of his official conduct so near the close of the session. To this, Mr. S. replied, that he did not expect such a remark from that quarter of the House. If the gentleman had not been prepared for the inquiry, or thought it an improper season to enter upon it, why did he second the motion for bringing forward the charges? If suspicion had so long existed against the integrity of the Secretary, why was not information called for at the beginning of the session? Why was the call delayed till the session was within a few weeks of its termination? It was admitted that the Secretary had obeyed the order of the House with wonderful alacrity and promptitude. It was indeed strange that the gentleman who brought forward the charges, should be the first to complain that there was not time for their consideration. Mr. S. concluded by noticing the observation of Mr. MERCER and Mr. MADISON, that the opinion of the House on the preceding resolutions would not change the truth of facts, and that the public would ultimately decide whether the Secretary's conduct was criminal or not. This, said Mr. S., was like the conduct of a prosecutor, who, having chosen his jurisdiction, and being nonsuited, wished to appeal to another tribunal. Why were the resolutions brought before the House? Was it not to substantiate the truth of them by a vote? And had the prosecution succeeded, would the Secretary have had an appeal to the public? No, the resolutions would have been sent to the PRESIDENT, and the Secretary would have been removed, disgraced, and ruined for ever, without appeal. The question was then taken, and it was resolved in the affirmative--yeas 34, nays 7, as follows: YEAS.--Fisher Ames, Robert Barnwell, Egbert Benson, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Jonathan Dayton, William Findlay, Thomas Fitzsimons, Elbridge Gerry, Nicholas Gilman, Benjamin Goodhue, James Gordon, Thomas Hartley, James Hillhouse, William Hindman, Aaron Kitchell, John Laurance, Amasa Learned, George Leonard, Samuel Livermore, Frederick Augustus Muhlenberg, Nathaniel Niles, Josiah Parker, Theodore Sedgwick, Jeremiah Smith, William Smith, John Steele, Samuel Sterrett, Jonathan Sturges, George Thatcher, Thomas Tudor Tucker, Artemas Ward, and Hugh Williamson. NAYS.--John Baptist Ashe, Abraham Baldwin, William B. Giles, William Barry Grove, Richard Bland Lee, Nathaniel Macon, and James Madison. SATURDAY EVENING, March 2. A message from the Senate informed the House that the Senate having completed the Legislative business before them, are now about to adjourn. _Resolved._ That Mr. BOUDINOT, Mr. SEDGWICK, and Mr. HINDMAN, be appointed a committee jointly, with a committee on the part of the Senate, to wait on the PRESIDENT OF THE UNITED STATES, and inform him that Congress is ready to adjourn without day, unless he may have any farther communications to make to them. A message from the Senate informed the House that the Senate have agreed to the resolution of this House for the appointment of a joint committee, to wait on the PRESIDENT OF THE UNITED STATES, and inform him of the intended recess of Congress, and have appointed a committee for that purpose, on their part. On a motion made and seconded, "That the thanks of the House of Representatives be presented to JONATHAN TRUMBULL, in testimony of their approbation of his conduct in the chair, and in the execution of the difficult and important trust reposed in him, as SPEAKER of the said House," It was resolved unanimously: Whereupon, Mr. SPEAKER made his acknowledgments to the House, in manner following: "GENTLEMEN: You have made me very happy by this testimony of your approbation of my conduct in the chair. I feel, at the same time, an additional pleasure in the opportunity of rendering to you my sincere acknowledgments for the kind candor and indulgence, as well as the constant aid and support, which I have experienced in the performance of the duty which you were pleased to assign me. Be assured, gentlemen, I shall ever retain a grateful sense of your goodness; and you will suffer me to add, that my best wishes for your welfare and happiness, in public and private life, will attend each member of this honorable body." Mr. BOUDINOT, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES, and inform him of the intended recess of Congress, reported that the committee had performed that duty, and that the PRESIDENT was pleased to say he had no farther communication to make during the present session: Whereupon, Mr. SPEAKER adjourned the House _sine die_. THIRD CONGRESS.--FIRST SESSION. BEGUN AT THE CITY OF PHILADELPHIA, DECEMBER 2, 1793. LIST OF MEMBERS. SENATORS. _New Hampshire._--S. Livermore, John Langdon. _Vermont._--S. R. Bradley, Moses Robinson. _Massachusetts._--George Cabot, Caleb Strong. _Rhode Island._--William Bradford, Theodore Foster. _Connecticut._--Oliver Ellsworth, S. M. Mitchell. _New York._--Aaron Burr, John S. Hobart. _New Jersey._--Philemon Dickinson, F. Frelinghuysen. _Pennsylvania._--Albert Gallatin, Robert Morris, James Ross. _Delaware._--John Vining, Kensey Johns. _Maryland._--John Henry, Richard Potts. _Virginia._--James Monroe, John Taylor, Stevens T. Mason. _North Carolina._--Benjamin Hawkins, Alexander Martin. _South Carolina._--Pierce Butler, Ralph Izard. _Georgia._--William Few, James Jackson. _Kentucky._--John Browne, John Edwards. REPRESENTATIVES. _New Hampshire._--Nicholas Gilman, J. S. Sherburne, Jeremiah Smith, Paine Wingate. _Vermont._--Nathaniel Niles, Israel Smith. _Massachusetts._--Fisher Ames, S. Bourne, David Cobb, Peleg Coffin, Henry Dearborn, Samuel Dexter, Dwight Foster, Benjamin Goodhue, Samuel Holten, William Lyman, T. Sedgwick, George Thatcher, P. Wadsworth, Artemas Ward. _Rhode Island._--Benjamin Bourne, Francis Malbone. _Connecticut._--Joshua Coit, James Hillhouse, Amasa Learned, Zephaniah Swift, Uriah Tracy, J. Trumbull, Jeremiah Wadsworth. _New York._--Theodorus Bailey, Ezekiel Gilbert, Henry Glenn, James Gordon, Silas Talbot, T. Tredwell, John E. Van Allen, Philip Van Cortlandt, Peter Van Gaasbeck, John Watts. _New Jersey._--John Beatty, Elias Boudinot, Lambert Cadwalader, Jonathan Dayton, Aaron Kitchell. _Pennsylvania._--James Armstrong, William Findlay, Thomas Fitzsimons, Andrew Gregg, Thomas Hartley, Daniel Heister, William Irvine, William Montgomery, Frederick A. Muhlenberg, Peter Muhlenberg, Thomas Scott, John Smilie, John Wilkes Kittera. _Delaware._--Henry Latimer. _Maryland._--Gabriel Christie, George Dent, Uriah Forrest, William Hindman, John F. Mercer, Samuel Smith, Thomas Sprigg, William Vans Murray. _Virginia._--Thomas Claiborne, Isaac Coles, William B. Giles, Samuel Griffin, George Hancock, Carter B. Harrison, John Heath, Richard Bland Lee, Andrew Moore, Joseph Neville, Anthony New, John Nicholas, John Page, Francis Preston, Robert Rutherford, A. B. Venable, Francis Walker. _North Carolina._--Thomas Blount, William J. Dawson, James Gillespie, William B. Grove, Matthew Locke, Nathaniel Macon, Joseph McDowell, Alexander Mebane, Benjamin Williams, Joseph Winston. _South Carolina._--Lemuel Benton, Alexander Gillon, John Hunter, Andrew Pickens, William Smith, Richard Winn. _Georgia._--A. Baldwin, Thomas P. Carnes. _Kentucky._--Christopher Greenup, Alexander D. Orr. _Tennessee._--James White. PROCEEDINGS IN THE SENATE. MONDAY, December 2, 1793. This being the day fixed by the constitution for the annual meeting of Congress, the following members of the Senate appeared, produced their credentials, and took their seats. JOHN ADAMS, Vice President of the United States and President of the Senate. JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire. GEORGE CABOT, from Massachusetts. OLIVER ELLSWORTH, from Connecticut. MOSES ROBINSON, from Vermont. AARON BURR, from New York. JOHN RUTHERFORD, from New Jersey. ROBERT MORRIS and ALBERT GALLATIN, from Pennsylvania. JAMES MONROE, from Virginia. JOHN EDWARDS, from Kentucky. BENJAMIN HAWKINS, from North Carolina. RALPH IZARD, from South Carolina. Mr. LANGDON, the President of the Senate _pro tempore_, administered the oath required by law to the VICE PRESIDENT OF THE UNITED STATES. The Secretary read the credentials of the following Senators appointed for the terms respectively mentioned therein. PIERCE BUTLER, from South Carolina. ALEXANDER MARTIN, from North Carolina. JOHN VINING, from Delaware. The VICE PRESIDENT administered the oath required by law to Mr. BUTLER, Mr. GALLATIN, and Mr. MARTIN, respectively, and they took their seats. STEPHEN MIX MITCHELL, appointed by the State of Connecticut a Senator for two years, in the place of ROGER SHERMAN, deceased, produced his credentials, which being read, the VICE PRESIDENT administered to him the oath required by law, and he took his seat. The VICE PRESIDENT laid before the Senate the petition of Conrad Laub and others, relative to the appointment of Mr. GALLATIN, a Senator of the United States; which was read and ordered to lie on the table. The VICE PRESIDENT also communicated a letter from GEORGE READ, of Delaware, resigning his seat in the Senate; which was read, and ordered to lie on the table. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled, and ready to proceed to business. _Ordered_, that Messrs. IZARD and LANGDON be a joint committee on the part of the Senate, together with such committee as the House of Representatives may appoint, on their part, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. A message from the House of Representatives informed the Senate that the House had elected FREDERICK A. MUHLENBERG their Speaker, and that they have concurred with the Senate in appointing a joint committee to wait on the PRESIDENT OF THE UNITED STATES. Mr. IZARD, from the joint committee who had waited on the PRESIDENT, reported that the PRESIDENT would meet the two Houses to-morrow, at 12 o'clock, in the Senate Chamber. TUESDAY, December 3. The two Houses being assembled in the Senate Chamber, the PRESIDENT OF THE UNITED STATES entered, and addressed the two Houses of Congress as follows: _Fellow-Citizens of the Senate, and of the House of Representatives:_ Since the commencement of the term for which I have been again called into office, no fit occasion has arisen for expressing to my fellow-citizens at large the deep and respectful sense which I feel of the renewed testimony of public approbation. While, on the one hand, it awakened my gratitude for all those instances of affectionate partiality with which I have been honored by my country, on the other, it could not prevent an earnest wish for that retirement from which no private consideration should ever have torn me. But, influenced by the belief that my conduct would be estimated according to its real motives, and that the people, and the authorities derived from them, would support exertions having nothing personal for their object, I have obeyed the suffrage which commanded me to resume the Executive power, and I humbly implore that Being on whose will the fate of nations depends, to crown with success our mutual endeavors for the general happiness. As soon as the war in Europe had embraced those Powers with whom the United States have the most extensive relations, there was reason to apprehend that our intercourse with them might be interrupted, and our disposition for peace drawn into question by the suspicions too often entertained by belligerent nations. It seemed, therefore, to be my duty to admonish our citizens of the consequences of a contraband trade, and of hostile acts to any of the parties, and to obtain, by a declaration of the existing legal state of things, an easier admission of our right to the immunities belonging to our situation. Under these impressions the Proclamation which will be laid before you was issued. In this posture of affairs, both new and delicate, I resolved to adopt general rules, which should conform to the treaties and assert the privileges of the United States. These were reduced into a system, which will be communicated to you. Although I have not thought myself at liberty to forbid the sale of the prizes permitted by our treaty of commerce with France to be brought into our ports, I have not refused to cause them to be restored when they were taken within the protection of our territory, or by vessels commissioned or equipped in a warlike form within the limits of the United States. It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure; and it will probably be found expedient to extend the legal code and the jurisdiction of the Courts of the United States to many cases which, though dependent on principles already recognized, demand some further provisions. Where individuals shall, within the United States, array themselves in hostility against any of the Powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the United States; or usurp and exercise judicial authority within the United States; or where the penalties on violations of the law of nations may have been indistinctly marked, or are inadequate--these offences cannot receive too early and close an attention, and require prompt and decisive remedies. Whatsoever those remedies may be, they will be well administered by the Judiciary, who possess a long-established course of investigation, effectual process, and officers in the habit of executing it. In like manner, as several of the courts have doubted, under particular circumstances, their power to liberate the vessels of a nation at peace, and even of a citizen of the United States, although seized under a false color of being hostile property, and have denied their power to liberate certain captures within the protection of our territory, it would seem proper to regulate their jurisdiction in these points; but, if the Executive is to be the resort in either of the two last-mentioned cases, it is hoped that he will be authorized by law to have facts ascertained by the courts, when, for his own information, he shall request it. The connection of the United States with Europe has become extremely interesting. The occurrences which relate to it and have passed under the knowledge of the Executive, will be exhibited to Congress in a subsequent communication. When we contemplate the war on our frontiers, it may be truly affirmed that every reasonable effort has been made to adjust the causes of dissension with the Indians north of the Ohio. The instructions given to the Commissioners evince a moderation and equity proceeding from a sincere love of peace and a liberality having no restriction but the essential interests and dignity of the United States. The attempt, however, of an amicable negotiation having been frustrated, the troops have marched to act offensively. Although the proposed treaty did not arrest the progress of military preparation, it is doubtful how far the advance of the season, before good faith justified active movements, may retard them, during the remainder of the year. From the papers and intelligence which relate to this important subject, you will determine whether the deficiency in the number of troops granted by law shall be compensated by succors of militia, or additional encouragements shall be proposed to recruits. An anxiety has been also demonstrated by the Executive for peace with the Creeks and the Cherokees. The former have been relieved with corn and with clothing, and offensive measures against them prohibited during the recess of Congress. To satisfy the complaints of the latter, prosecutions have been instituted for the violence committed upon them. But the papers which will be delivered to you, disclose the critical footing on which we stand in regard to both those tribes, and it is with Congress to pronounce what shall be done. _Gentlemen of the House of Representatives:_ The productiveness of the public revenues hitherto has continued to equal the anticipations which were formed of it, but it is not expected to prove commensurate with all the objects which have been suggested. Some auxiliary provisions will, therefore, it is presumed, be requisite; and it is hoped that these may be made consistently with a due regard to the convenience of our citizens, who cannot but be sensible of the true wisdom of encountering a small present addition to their contributions, to obviate a future accumulation of burdens. But here I cannot forbear to recommend a repeal of the tax on the transportation of public prints. There is no resource so firm for the Government of the United States as the affections of the people, guided by an enlightened policy; and to this primary good nothing can conduce more than a faithful representation of public proceedings, diffused without restraint, throughout the United States. An estimate of the appropriations necessary for the current service of the ensuing year, and a statement of a purchase of arms and military stores, made during the recess, will be presented to Congress. _Gentlemen of the Senate, and of the House of Representatives:_ The several subjects to which I have now referred open a wide range to your deliberations, and involve some of the choicest interests of our common country. Permit me to bring to your remembrance the magnitude of your task. Without an unprejudiced coolness, the welfare of the Government may be hazarded; without harmony, as far as consists with freedom of sentiment, its dignity may be lost. But, as the Legislative proceedings of the United States will never, I trust, be reproached for the want of temper or of candor, so shall not the public happiness languish from the want of my strenuous and warmest co-operation. G. WASHINGTON. PHILADELPHIA, _December_ 3, 1793. The PRESIDENT having retired, the two Houses separated. On motion, a committee of five was appointed to report the draft of an Address to the PRESIDENT, in answer to his Speech to both Houses. Messrs. ELLSWORTH, BUTLER, IZARD, LANGDON, and RUTHERFORD, were named. THURSDAY, December 5. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ As the present situation of the several nations of Europe, and especially of those with which the United States have important relations, cannot but render the state of things between them and us matter of interesting inquiry to the Legislature, and may indeed give rise to deliberations to which they alone are competent, I have thought it my duty to communicate to them certain correspondences which, have taken place. The Representative and Executive bodies of France have manifested generally a friendly attachment to this country, have given advantages to our commerce and navigation, and have made overtures for placing these advantages on permanent ground. A decree, however, of the National Assembly, subjecting vessels laden with provisions to be carried into their ports, and making enemy goods lawful prize in the vessel of a friend, contrary to our Treaty, though revoked at one time as to the United States, has been since extended to their vessels also, as has been recently stated to us. Representations on this subject will be immediately given in charge to our Minister there, and the result shall be communicated to the Legislature. It is with extreme concern I have to inform you that the proceedings of the person whom they have unfortunately appointed their Minister Plenipotentiary here have breathed nothing of the friendly spirit of the nation which sent him; their tendency, on the contrary, has been to involve us in war abroad and discord and anarchy at home. So far as his acts, or those of his agents, have threatened our immediate commitment in the war, or flagrant insult to the authority of the laws, their effect has been counteracted by the ordinary cognizance of the laws, and by an exertion of the powers confided to me. Where their danger was not imminent, they have been borne with, from sentiments of regard to his nation, from a sense of their friendship towards us, from a conviction that they would not suffer us to remain long exposed to the action of a person who has so little respected our mutual dispositions, and, I will add, from a reliance on the firmness of my fellow-citizens in their principles of peace and order. In the mean time, I have respected and pursued the stipulations of our treaties, according to what I judged their true sense, and have withheld no act of friendship which their affairs have called for from us, and which justice to others left us free to perform. I have gone further: rather than employ force for the restitution of certain vessels which I deemed the United States bound to restore, I thought it more advisable to satisfy the parties by avowing it to be my opinion that, if restitution were not made, it would be incumbent on the United States to make compensation. The papers now communicated will more particularly apprise you of these transactions. The vexations and spoliation understood to have been committed on our vessels and commerce by the cruisers and officers of some of the belligerent Powers, appeared to require attention. The proofs of these, however, not having been brought forward, the descriptions of citizens supposed to have suffered were notified that, on furnishing them to the Executive, due measures would be taken to obtain redress of the past, and more effectual provisions against the future. Should such documents be furnished, proper representations will be made thereon, with a just reliance on a redress proportioned to the exigency of the case. The British Government having undertaken, by orders to the commanders of their armed vessels, to restrain generally our commerce in corn and other provisions to their own ports, and those of their friends, the instructions now communicated were immediately forwarded to our Minister at that Court. In the mean time, some discussions on the subject took place between him and them. These are also laid before you, and I may expect to learn the result of his special instructions in time to make it known to the Legislature during their present session. Very early after the arrival of a British Minister here mutual explanations on the inexecution of the Treaty of Peace were entered into with that Minister. These are now laid before you for your information. On the subjects of mutual interest between this country and Spain, negotiations and conferences are now depending. The public good requiring that the present state of these should be made known to the Legislature _in confidence only_, they shall be the subject of a separate and subsequent communication. G. WASHINGTON. UNITED STATES, _December 5, 1793._ FRIDAY, December 6. Mr. ELLSWORTH, from the committee appointed to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, made a report; which was read, and ordered for consideration on Monday next. MONDAY, December 9. Messrs. STEPHEN R. BRADLEY, from Vermont, THEODORE FOSTER, from Rhode Island, and RUFUS KING, from New York, appeared and took their seats. Agreeably to the order of the day, the Senate took into consideration the draft of an Address reported by the committee in answer to the Speech of the PRESIDENT OF THE UNITED STATES to Congress at the opening of the session; which, being amended, and the several paragraphs of the report agreed to, it was adopted, as follows: "_To the President of the United States:_ "Accept, sir, the thanks of the Senate for your Speech delivered to both Houses of Congress at the opening of the session. Your re-election to the Chief Magistracy of the United States gives us sincere pleasure. We consider it as an event every way propitious to the happiness of our country; and your compliance with the call, as a fresh instance of the patriotism which has so repeatedly led you to sacrifice private inclination to the public good. In the unanimity which a second time marks this important national act, we trace, with particular satisfaction, besides the distinguished tribute paid to the virtues and abilities which it recognizes, another proof of that just discernment and constancy of sentiments and views which have hitherto characterized the citizens of the United States. "As the European Powers with whom the United States have the most extensive relations were involved in war, in which we had taken no part, it seemed necessary that the disposition of the nation for peace should be promulgated to the world, as well for the purpose of admonishing our citizens of the consequences of a contraband trade and of acts hostile to any of the belligerent parties, as to obtain, by a declaration of the existing legal state of things, an easier admission of our right to the immunities of our situation; we, therefore, contemplate with pleasure the Proclamation, by you issued, and give it our hearty approbation. We deem it a measure well-timed and wise, manifesting a watchful solicitude for the welfare of the nation, and calculated to promote it. "The several important matters presented to our consideration will, in the course of the session, engage all the attention to which they are respectively entitled; and, as the public happiness will be the sole guide of our deliberations, we are perfectly assured of receiving your strenuous and most zealous co-operation. "JOHN ADAMS, "_Vice President of the United States, and President of the Senate._" _Ordered_, That Messrs. ELLSWORTH and BUTLER wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that the foregoing Address should be presented. TUESDAY, December 10. JOHN BROWN, from the State of Kentucky, attended to-day. Mr. ELLSWORTH reported, from the committee appointed yesterday to wait on the PRESIDENT OF THE UNITED STATES, that the PRESIDENT proposed to receive the Address of the Senate this day, at 12 o'clock, at his own house. Whereupon, the Senate waited on the PRESIDENT OF THE UNITED STATES, and the VICE PRESIDENT, in their name, presented the Address agreed to on the ninth instant. To this Address the PRESIDENT OF THE UNITED STATES was pleased to make the following Reply: "GENTLEMEN: The pleasure expressed by the Senate on my re-election to the station which I fill, commands my sincere and warmest acknowledgments. If this be an event which promises the smallest addition to the happiness of our country, as it is my duty, so shall it be my study, to realize the expectation. "The decided approbation which, the Proclamation now receives from your House, by completing the proofs that this measure is considered as manifesting a vigilant attention to the welfare of the United States, brings with it a peculiar gratification to my mind. "The other important subjects which have been communicated to you will, I am confident, receive a due discussion; and the result will, I trust, prove fortunate to the United States. "G. WASHINGTON." The Senate then returned to their Chamber, and resumed the reading of the papers communicated in the message of the PRESIDENT OF THE UNITED STATES of the 5th instant, but adjourned before they were got through. WEDNESDAY, December 11. CALEB STRONG, from Massachusetts, attended to-day. The credentials of Mr. BROWN and Mr. STRONG were read, the usual oath administered to them, and they took their seats. FRIDAY, December 13. WILLIAM BRADFORD, from Rhode Island, and JOHN TAYLOR, from Virginia, attended, produced their credentials, and took the usual oath and their seats. MONDAY, December 16. JAMES JACKSON, from Georgia, attended, produced his credentials, and, the oath required by law being administered to him, he took his seat in the Senate. TUESDAY, December 17. JOHN VINING, from Delaware, appeared, and, the oath required by law being, by the VICE PRESIDENT, administered to him, he took his seat in the Senate. TUESDAY, December 24. _Exclusion of Bank Officers and Stockholders from Congress._ The following motion was made and seconded, to wit: That the constitution be amended by adding, at the end of the ninth section of the first article, the following clause: "Nor shall any person holding any office or stock in any institution in the nature of a bank for issuing or discounting bills or notes payable to bearer or order, under the authority of the United States, be a member of either House whilst he holds such office or stock, but no power to grant any charter of incorporation, or any commercial or other monopoly, shall be herein implied." And it was agreed that this motion should lie for consideration. TUESDAY, December 31. Mr. RUTHERFORD reported, from the committee to whom was referred the petition of Conrad Laub and others, stating that the Hon. ALBERT GALLATIN, at the time he was elected a Senator of the United States, had not been nine years a citizen of the said United States as is required by the constitution; which report was read, and ordered to lie for consideration. WEDNESDAY, January 1, 1794. The Senate proceeded to the consideration of the report of the committee to whom was referred the petition of Conrad Laub and others. On motion to postpone the consideration of the report until to-morrow, it was agreed to amend this motion, by striking out the words "to-morrow," and to insert, in lieu thereof, "Thursday, the 9th instant." THURSDAY, January 2. A motion was made that it be-- "_Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both Houses concurring_, That the following article be proposed to the Legislatures of the several States, as an amendment to the Constitution of the United States; which, when ratified by three-fourths of the said Legislatures, shall be valid as part of the said constitution, to wit: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." MONDAY, January 13. The Senate resumed the consideration of the petition of Conrad Laub and others, respecting the appointment of Mr. GALLATIN to be a Senator of the United States. On motion, _Ordered_, That a Committee of Elections, to consist of seven, be appointed, and that the petition of Conrad Laub and others be referred, without prejudice as to any questions which may, upon the hearing, be raised by the sitting member, as to the sufficiency of the parties and the matter charged in the petition, to the same committee, to state the facts, and that they be authorized to send for persons, and papers; also, that Messrs. BRADLEY, ELLSWORTH, MITCHELL, RUTHERFORD, BROWN, LIVERMORE, and TAYLOR, be this committee. TUESDAY, January 14. Agreeably to the order of the day, the Senate took into consideration the motion made yesterday for an amendment to the Constitution of the United States, respecting the Judicial power thereof. And, on the question to agree to the resolution as follows: "_Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both Houses concurring_, That the following article be proposed to the Legislatures of the several States, as an amendment to the Constitution of the United States; which, when ratified by three-fourths of the said Legislatures, shall be valid as part of the said constitution, to wit; "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State:" It passed in the affirmative--yeas 23, nays 2, as follows: YEAS.--Messrs. Bradford, Bradley, Brown, Burr, Butler, Cabot, Edwards, Ellsworth, Foster, Frelinghuysen, Hawkins, Jackson, Izard, King, Langdon, Livermore, Martin, Mitchell, Monroe, Robinson, Strong, Taylor, and Vining. NAYS.--Messrs. Gallatin and Rutherford. _Ordered_, That the Secretary desire the concurrence of the House of Representatives in this resolution. WEDNESDAY, January 15. _Exclusion of Bank Officers from a seat in Congress._ The Senate resumed the consideration of the motion made yesterday for an amendment to the Constitution of the United States, inhibiting the holders of any office or stock in the Bank of the United States from a seat in either House of Congress. On motion to amend the motion, to be read as follows: "Nor shall any person holding any office in any institution in the nature of a bank, under the authority of the United States be a member of either House whilst he holds such office; but no power to grant any charter of incorporation, or any commercial or other monopoly, shall be hereby implied." And, after debate, the further consideration thereof was postponed until to-morrow. THURSDAY, January 16. The Senate resumed the consideration of the motion made yesterday, to amend the motion under consideration the 14th instant, for an amendment to the Constitution of the United States, inhibiting the holders of any office or stock in the Bank of the United States from a seat in either House of Congress. On motion to amend the amendment, so that it be read as follows: "Nor shall any person holding any office in the Bank of the United States be a member of either House whilst he holds such office; but no power to grant any charter of incorporation, or any commercial or other monopoly shall be hereby implied:" It passed in the affirmative--yeas 13, nays 12, as follows YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Gallatin, Hawkins, Jackson, Izard, Martin, Monroe, Robinson, and Taylor. NAYS.--Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, King, Langdon, Livermore, Mitchell, Morris, Strong, and Vining. On motion it was agreed to expunge the following clause of the motion last adopted: "But no power to grant any charter of incorporation, or any commercial or other monopoly, shall be hereby implied:" and, On the question, to agree to the motion, amended as follows: "Nor shall any person holding any office in the Bank of the United States be a member of either House, whilst he holds such office:" It passed in the negative--yeas 12, nays 13, as follows: YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Gallatin, Hawkins, Jackson, Martin, Monroe, Robinson, and Taylor. NAYS.--Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Izard, King, Langdon, Livermore, Mitchell, Morris, Strong, and Vining. Agreeably to notice given, Mr. BUTLER obtained leave to bring in a bill to amend the act, entitled "An act to incorporate the subscribers to the Bank of the United States;" which was read the first time. On motion that this bill have a second reading, in the words following, to wit: "Whereas it is inexpedient that the Government of the United States should continue to hold any stock in the Bank of the United States, or have any political connection with the said bank, or any other connection with it, otherwise than in common with other banks within the United States:" [The bill directs the sale of the United States stock in the bank, and repeals all the clauses in the charter establishing any connection with it:] It passed in the negative--yeas 12, nays 13, as follows: YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Gallatin, Hawkins, Jackson, Martin, Monroe, Robinson, and Taylor. NAYS.--Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Izard, King, Langdon, Livermore, Mitchell, Morris, Strong, and Vining. TUESDAY, January 21. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ Having already laid before you a letter of the 16th of August, 1793, from the Secretary of State to our Minister at Paris, stating the conduct and urging the recall, of the Minister Plenipotentiary of the Republic of France, I now communicate to you, that his conduct has been unequivocally disapproved; and that the strongest assurances have been given, that his recall should be expedited without delay. G. WASHINGTON. UNITED STATES, _January 20, 1794._ The Message was read, and ordered to lie on file. The memorial of the people called Quakers, from the yearly meeting held at Rhode Island for New England, in the year 1793, was presented and read, praying Congress to exercise the authority vested in them by the constitution for the suppression of the slave trade. _Ordered_, That Messrs. BRADLEY, LIVERMORE, and BROWN, be a committee to take into consideration the laws passed in the territory of the United States north-west of the river Ohio, from July to December, 1792, inclusive, and report thereon to the Senate. THURSDAY, January 30. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ Communications have been made to Congress during the present session, with the intention of affording a full view of the posture of affairs on the south-western frontiers. By the information which has lately been laid before Congress, it appeared that the difficulties with the Creeks had been amicably and happily terminated. But it will be perceived with regret, by the papers herewith transmitted, that the tranquillity has unfortunately been of short duration, owing to the murder of several friendly Indians, by some lawless white men. The condition of things in that quarter requires the serious and immediate consideration of Congress, and the adoption of such wise and vigorous laws as will be competent to the preservation of the national character and of the peace made under the authority of the United States with the several Indian tribes. Experience demonstrates that the existing legal provisions are entirely inadequate to those great objects. G. WASHINGTON. UNITED STATES, _January 30, 1794._ TUESDAY, February 4. A message from the House of Representatives informed the Senate that the House have passed a bill entitled "An act providing for the relief of such of the inhabitants of Saint Domingo resident within the United States as may be found in want of support," in which they desire the concurrence of the Senate. This bill was read the first time, and ordered to a second reading. WEDNESDAY, February 5. The bill, sent from the House of Representatives for concurrence, entitled "An act providing for the relief of such of the inhabitants of Saint Domingo, resident within the United States, as may be found in want of support," was read the second time; and, after debate, the further consideration thereof was postponed until to-morrow. THURSDAY, February 6. Mr. POTTS, from Maryland, attended. The Senate resumed the second reading of the bill sent from the House of Representatives for concurrence, entitled "An act providing for the relief of such of the inhabitants of Saint Domingo, resident within the United States, as may be found in want of support." On motion, that it be recommitted, for the purpose of further inquiry, it passed in the negative. And after agreeing to an amendment, the bill was ordered to a third reading. FRIDAY, February 7. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ I transmit to you an Act and three Ordinances, passed by the Government of the territory of the United States south of the river Ohio, on the 13th and 21st of March, and the 7th of May, 1793; and also certain letters from the Minister Plenipotentiary of the French Republic, to the Secretary of State, enclosing despatches from the General and Extraordinary Commission of Guadaloupe. G. WASHINGTON. UNITED STATES, _February 7, 1794._ The Message and papers therein referred to were read. _Ordered_, That the act and three ordinances, mentioned in the Message, be referred to the committee appointed 21st of January last, to whom were referred the laws passed in the territory north-west of the Ohio, to consider and report thereon to the Senate. _Ordered_, That the other papers referred to in the Message lie for consideration. The Senate proceeded to the third reading of the bill, sent from the House of Representatives for concurrence, entitled "An act providing for the relief of such of the inhabitants of Saint Domingo, resident within the United States, as may be found in want of support." Whereupon, _Resolved_, That this bill pass as amended. MONDAY, February 10. The VICE PRESIDENT laid before the Senate a letter from the Secretary of the Department of the Treasury, in reference to the orders of Senate of the 20th January last, for a return of sundry statements from that department; which letter was read. Mr. BRADLEY reported from the committee to whom was referred the petition of Conrad Laub and others, respecting the appointment of Mr. GALLATIN to be a Senator of the United States; and the report was read. _Ordered_, That Wednesday next be assigned to take this report into consideration, and that, in the mean time, it be printed for the use of the Senate. On motion, that the Senate adopt the following resolution: "_Resolved_, That the doors of the Senate be opened, and continue open, during the discussion upon the contested election of ALBERT GALLATIN:" _Ordered_, That this motion lie on the table until to-morrow. TUESDAY, February 11. Agreeably to the order of the day, the Senate took into consideration the motion made yesterday that the doors of the Senate be opened during the discussion of the contested election of Mr. GALLATIN. Whereupon, _Resolved_, That the doors of the Senate be opened, and continue open, during the discussion upon the contested election of ALBERT GALLATIN. Mr. BRADLEY reported from the committee to whom was referred the act and three ordinances mentioned in the Message from the PRESIDENT OF THE UNITED STATES of the 7th instant, enacted and ordained by the Governor and judges of the territory south of the river Ohio, "that Congress do not disapprove the same," and the report was agreed to. THURSDAY, February 13. Mr. BURR, from the committee to whom was referred the Message from the PRESIDENT OF THE UNITED STATES, of the 30th of December last, reported a bill authorizing and directing the settlement of the accounts of Major General LAFAYETTE; which was read the first time, and ordered to a second reading. FRIDAY, February 14. The bill authorizing and directing the settlement of the accounts of Major General LAFAYETTE was read the second time, and, after debate, it was ordered to lie for consideration and inquiry. MONDAY, February 17. The petition of Michael Schmyser, agent for Conrad Laub and others, petitioners against the election of ALBERT GALLATIN to be a Senator of the United States, was presented and read, praying to be heard by counsel. _Ordered_, That the prayer of the petition be granted. The consideration of the report of the committee on the petition of Conrad Laub and others, respecting the election of Mr. GALLATIN to be a Senator of the United States, was resumed, and after progress, it was ordered that the consideration thereof be postponed until Wednesday next. WEDNESDAY, February 19. JAMES GUNN, from Georgia, took his seat in the Senate. THURSDAY, February 20. The Senate resumed the consideration of the motion made yesterday, to amend the motion then reconsidered, respecting the opening the doors of the Senate Chamber whilst sitting in a Legislative capacity. On motion to commit the motion for amendment, it passed in the negative. On motion, that the amendment be agreed to, it passed in the affirmative--yeas 18, nays 9, as follows: YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Ellsworth, Foster, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Monroe, Potts, Taylor, and Vining. NAYS.--Messrs. Bradford, Cabot, Frelinghuysen, Gallatin, Izard, Mitchell, Morris, Rutherford, and Strong. On motion to adopt the resolution, amended as follows: "_Resolved_, That, after the end of the present session of Congress, and so soon as suitable galleries shall be provided for the Senate Chamber, the said galleries shall be permitted to be opened every morning, so long as the Senate shall be engaged in their Legislative capacity, unless in such cases as may, in the opinion of the Senate, require secrecy, after which the said galleries shall be closed:" It passed in the affirmative--yeas 19, nays 8, as follows: YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Ellsworth, Foster, Gallatin, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Monroe, Potts, Taylor, and Vining. NAYS.--Messrs. Bradford, Cabot, Frelinghuysen, Izard, Mitchell, Morris, Rutherford, and Strong. _Contested Election._ Agreeably to the order of the day, the Senate resumed the consideration of the report of the committee on the petition of Conrad Laub, and others, respecting the election of Mr. GALLATIN to be a Senator of the United States. The report of the committee states the evidence, and concludes with an opinion, that to controvert the allegations set forth in the petition against Mr. G., it lays with him to prove his citizenship. Accordingly, Mr. G. presented a written statement of facts which the PRESIDENT of the Senate read. It contained a narrative of several transactions from the time of Mr. G.'s arrival in the province of Maine, or Massachusetts, about thirteen years ago. Of his having contributed by money and his own services as a volunteer, in the cause of the revolution. Of his having taken oaths of allegiance and purchased lands in that State, and also in the State of Virginia. In the back parts of the last-mentioned State, he had formed an interesting settlement, and had been extremely useful in bringing settlers from Europe. The dates of those transactions and times of his arrival in Pennsylvania, and of being sent to the State Convention, are also recited, up to the time of his being chosen one of their Representatives in the Senate of the United States. After the PRESIDENT had done reading the statement of facts, Mr. G. addressed the Senate, by observing, that he felt himself rather in an awkward predicament, not knowing whether the counsel for the prosecutors or himself were the proper person to speak the first, as this preliminary was not yet laid down by the Senate, neither had he provided any counsel. He should have supposed himself in the situation of defendant, were it not that the weight of proving the affirmative in regard to citizenship had been laid on him, under which predicament it might perhaps be necessary for him to begin, and after the counsel for the petitioners had spoken, that he should then be allowed to close the arguments. Mr. LIVERMORE was of opinion, that the sitting member should begin to debate, as the _onus probandi_ lay with him. The counsel for the petitioners, Mr. LEWIS, rose. He was attended by Mr. Schmyser, one of the members of the Senate of Pennsylvania, who, we understand, manages the prosecution on the part of the petitioners. Mr. L. hoped he would be permitted to say a few words in the early stage of the business, in regard to the manner of conducting it. He recapitulated sundry offices and posts of honor that had been conferred on him, from which he humbly presumed he had gathered much experience, and particularly in cases of contested elections. He would, therefore, beg leave of the honorable Senate, to offer an observation before they should determine on the mode of conducting the trial. When the question for postponement, which was debated the other day, was before them, the sitting member did then consider himself as defendant, and for an hour had fought phantoms of his own imagination, but now he has changed his ground, and desires to have the privileges which belong to the petitioners only, namely, the right of opening the prosecution, and afterwards concluding the arguments. Mr. GALLATIN submitted to the decision of the Senate, and said he did not wish to contend for mere matters of form. Mr. MARTIN (from N. Carolina) thought it immaterial who began or concluded, if in the end the Senate should be enabled to arrive at a just degree of information. Mr. JACKSON (from Georgia) made some observations on the manner of conducting the business. He thought it would be incumbent on the counsel for the petitioners to prove that Mr. GALLATIN was not a citizen, &c. Mr. KING (from New York) and some other gentleman of the Senate, said a few more words on the motion; it was agreed that the sitting member should begin. Mr. GALLATIN accordingly rose and recapitulated the facts stated in the written paper which he had presented to the PRESIDENT, commenting on each of them as he proceeded. He proved that he had been an inhabitant of the United States for thirteen years, and was one before the peace of 1783, and before the Confederation. He quoted the laws previous thereto respecting aliens, and also the British statutes, and he maintained that they were all done away by the Revolution. He conceived himself a citizen in common with the other citizens of the United States, from the time of his first qualifying after his arrival and attachment to the country. He concluded by saying, he would reserve the remainder of his defence until after he should hear the counsel on behalf of the petitioners. Mr. Lewis commenced his speech by observing, that he appeared there on behalf of Conrad Laub, and other respectable men, who complained of the unconstitutionality of admitting Mr. GALLATIN to a seat in the Senate. He was glad to find, by the gentleman's expressions, that the ground of debate had been narrowed into so small a compass, and he would therefore take him up from the argument where he had left off speaking, that of his being a citizen in common of the United States, from the time of his qualifying in Massachusetts or Virginia. But in Virginia two oaths are required, and they must be taken in a court, not before a magistrate, to entitle a man to citizenship. He must also be possessed of a certain quantity of property and be a resident for two years. It appears Mr. G. did not remain in Virginia more than two months. (Here Mr. Lewis read the law of Virginia of the 20th October, 1783.) On this law Mr. L. argued that Mr. G. had not gone through the necessary qualifications to entitle him to citizenship there; and he observed, that he admired the gentleman's candor in not insisting on it here. In this State he had certainly not qualified himself agreeably to the law. Under these circumstances, Mr. L. for his part could never admit of the gentleman's right to citizenship so far back as to entitle him to the suffrage of a vote for a seat in the Senate, &c. The mischievous consequences of permitting such innovations, he represented in strong terms; and he called to the recollection of the Senate, the conduct of ancient and modern governments on this question. One of the ancient republics made it death for an alien to intermeddle in their politics. The sentiments of antiquity, and those of men in modern days, proved the justice of these conclusions. With regard to the arguments of the gentleman respecting his being entitled to be a citizen of the Union, or any individual State of it, because he had qualified himself to be citizen of one of them, Mr. L. said, was a mere bubble, for surely the gentleman was not one of the mass of citizens at the accomplishment of independence. The doctrine of the old law, which the gentleman says was done away by the Revolution, in respect to aliens, may have been so with regard to the British King; it was still, however, virtually in force against the gentleman. But supposing it to be done away, how do the constitutions of the different States stand on this head? Is it not implied by all of them, that certain oaths, residence, and property, make the requisites to form citizenship? In Massachusetts a foreigner is not a citizen, without he complies with those terms. [Here he quoted p. 70 of the small volume of the Laws of Massachusetts. He also cited the act in favor of John Jarvis and others; also, p. 104 of the same book, and p. 191 and 192.] From these he maintained, that no such wild idea was ever contemplated by either the law of Massachusetts or Virginia, as to admit foreigners or persons from other States to citizenship, immediately on their entrance within their limits. The situation of the sitting member, with respect to the constitution and laws of Pennsylvania, he had little doubt was similar to what he had mentioned in regard to the other States, although he would not assert it as a fact. [He read the 42d section, and also in p. 43 of the Law of Pennsylvania, 13th March, 1789, a proviso which contains some precautions requiring records to be kept by the master of the rolls of the persons admitted to citizenship.] The same principle pervades all the States as well as it does the Constitution of the United States. The absurdity of applying it in any other sense, was severely pictured by Mr. L., and to admit the idea advanced by the sitting member, was as inadmissible as it was novel. In support of what he wished to impress on the minds of the Senate, Mr. L. quoted the 1st vol. of the Journals of Congress in 1774 and 1775, pp. 28 and 29. He then recurred to _Blackstone_, vol. I, pp. 63, 64, and 69; also 73 and 79. It was not his intention to quote the Parliamentary Laws of England in support of any thing, but such parts of their Common Law as could be got over--that Common Law of England which was imported by our ancestors, and handed down to them by the people, not the Parliament. The people had made the Common Law, from time to time. The Saxons, Normans, &c, were all concerned in making and improving it, until it had finally reached that degree of perfection in which it was given to us by our ancestors, and it was founded in wisdom and justice. Mr. L. next quoted, first _Blackstone_, 402, which was one of the British laws that had never been admitted in this country, and which, he hoped, never would, viz: that wherein the distinction is drawn between the Commoner and the Peer, an oath being required of the Commoner, upon all occasions, and no more than "_upon my honor_" from a Peer, except in giving evidence in civil or criminal trials. Mr. L. concluded, by saying that the difficulties which stood between Mr. GALLATIN and his seat, were insurmountable and could not be removed without showing a law of Massachusetts, Virginia, &c., repealing those laws in regard to the qualification of citizens, which he had mentioned, but which repeal he was certain did not exist. He therefore stated, that to insist upon the gentleman's right to a seat, was both novel and absurd. These were his opinions, which he had given in a perfectly extempore way, not having been allowed time nor expecting to meet the subject on the new ground which it had this day taken in the Senate. Mr. GALLATIN said, he would pledge himself to the Senate, to prove that the grounds of his arguments and his construction of the Confederation and laws of the States, were neither novel nor absurd, except in Mr. L.'s construction of them, but had been admitted in many instances. However, as the Common Law of England was now introduced by Mr. L., which was new ground to him, and as the hour of adjournment was nearly approaching, he would beg leave to make his reply to-morrow. On motion, the further consideration of this subject was postponed until to-morrow. FRIDAY, February 21. _Contested Election._ Agreeably to the order of the day the Senate resumed the consideration of the report of the committee on the petition of Conrad Laub, and others, respecting the election of Mr. GALLATIN to be a Senator of the United States. Mr. GALLATIN commenced his defence by laying down the principles on which he intended to argue. His was a very serious situation for a person to be placed in, who had been so long in America, and who had mingled with the inhabitants in the common cause, that he should afterwards be called before so solemn a tribunal, with an intention to wrest from him his right of citizenship. He confessed, that on this occasion his feelings were deeply interested, particularly as the manner of the counsel for the prosecutors was so personal, and went not only to deny him a seat in the Senate of the United States, but even to contest his citizenship, and denounce him as being yet an alien. This was a matter of consequence to many thousands as well as himself, who have long considered themselves in possession of all the privileges of denizens, and yet may be deprived of their rights, if the doctrines of the counsel for the prosecutors should obtain any sanction from the body who were now to judge of its merits. Mr. G. entered into a series of observations on the various points of law, &c., which had been adduced by Mr. LEWIS, and he particularly remarked, that the Common Law of England was entirely inapplicable to the subject under consideration. He read the laws of Virginia respecting naturalization, &c., from which he insisted that he had long since become a citizen of the United States. He also quoted 1st _Blackstone_, p. 374, and _Viner's Abridgment_, vol. ii. p. 266, respecting the different acceptations of denizen and citizen, and he went back so far as the British statutes in 1740, to show the intention of the old Government was to naturalize all persons who would go and reside in the Colonies. He next mentioned the act of Pennsylvania, of the 31st of August, 1778, and commented on the principles generally entertained by most writers on the subjects of allegiance and citizenship. _Blackstone_, 266, &c. An alien is a man born out of the allegiance of the King. But allegiance in England is not an allegiance to the country or to society, as it is understood in this country. In order to explain the principle of reciprocity, he observed, that when the two crowns of England and Scotland were united under James, the inhabitants of Scotland became naturalized in England, as if they had been natural-born subjects of that country. The allegiance in Britain was personal to the King, and it has there this remarkable quality, that by the British laws allegiance can never be shaken off. This country, before the Revolution, owed allegiance to the King, but that was destroyed by the Declaration of Independence, and then the inhabitants of the States became mutually citizens of every State reciprocally; and they continued so until such time as the States made laws of their own afterwards respecting naturalization. As soon as separate governments existed, allegiance was due to each, and here the allegiance was a reality, it was to the Government and to society, whereas in Britain it is merely fictitious, being only to one man. Every man who took an active part in the American Revolution, was a citizen according to the great laws of reason and of nature, and when afterwards positive laws were made, they were retrospective in regard to persons under this predicament, nor did those posterior laws invalidate the rights which they enjoy under the Confederation. Mr. G. here mentioned his having been an inhabitant of Massachusetts before October, 1780, and he also observed, that the law passed in that State was decisive against the Common Law of England. In quoting the laws of Massachusetts, which were passed in 1785, and afterwards, for naturalizing John Gardner, and James Martin, he remarked that they clearly implied that even a natural born subject, who had not acted in the Revolution, and an absentee, was not entitled to citizenship. He likewise took notice of the case of Mr. WILLIAM SMITH, of South Carolina, against whose election as a Representative in Congress, a petition was presented by Doctor Ramsay, although the decision of South Carolina on that subject was exactly the reverse of Massachusetts. In speaking of the difficulties that occurred in explaining the terms citizen and alien, he ran over a number of cases, and asked whether if a person had arrived in the United States during the war, from Nova-Scotia, or elsewhere, and had taken an active part against the enemy, would he not be better entitled to the right of a citizen, than even those who afterwards subscribed to the acts? The counsel for the prosecutors had admitted that a person who had been one of the mass of the people, at the Declaration of Independence, was a citizen. On the same principle, until a law passes to disprove that a man who was active in the Revolution previous to the treaty of peace, was a citizen, he must be one _ipse facto_. Mr. G. next read a quotation from the 1st vol. of _Woodison_, p. 382, an English writer, who acknowledged that all persons were aliens at the recognition of independence, and that is a more liberal construction than the council for the petitioners would admit of, for by this construction, our sailors, &c., ought to be naturalized, lest they be alarmed by the British. The new Constitution of the United States requires certain qualifications for members of Congress, &c., but it does not deprive persons of their rights who were actually citizens before the constitution was ratified that made the States the United States. They were united by consent before, and consequently he was one of the people before the United States existed. He went on to read from the Constitution of Massachusetts, and several other States, sundry clauses in support of his reasoning, and recapitulated the several heads of Mr. L.'s arguments, to each of which he replied. Mr. G. said, that Mr. Lewis was unfortunate in producing the law of Pennsylvania, for, by proving too much, he had proved nothing, for the 42d sec. of the constitution is retrospective, and by acknowledging the Articles of Confederation to be the supreme law of the land, persons who were reciprocally citizens before, are still left in full possession of the right. So far from any dangerous consequences arising on my construction of citizenship, said he, I think it must be evident, that there is more danger and absurdity in the counsel's own constructions. For, in remarking on the policy of nations, we find even slaves have been enfranchised by the great republics in times of common danger. The policy of America should be to make citizenship as easy as possible, for the purpose of encouraging population; even during the British dominion that was a principle laid down, and afterwards it was attempted to be varied; it is made one of the principal subjects of complaint in the Declaration of Independence, where it is expressly said, that the king endeavored to prevent the population of these States, by having laws made to obstruct the naturalization of foreigners. If there were any dangerous consequences to be apprehended from the former regulations on this subject, they are all remedied by the new constitution. Therefore, no ill consequence or absurdity can follow. The author of the Federalist supports this principle in vol. ii. p. 54, for he says, that it is a construction scarcely avoidable, that citizens of each of the States are mutually so in all of them. The first words in the constitution, "We the People," furnished another argument in support of Mr. G's principles, which he turned to great advantage, still drawing an inference to show that Mr. L.'s construction of the subject was most liable to difficulties and to mischievous consequences. He concluded by observing, that if there was any disfranchising clauses in the Constitution of the United States, tending to deprive citizens of antecedent rights, all such clauses must be construed favorably, and were evidently on his side. With regard to a sentence that had been added, by the advice of counsel, to the affidavit of Pelatiah Webster, he made some remarks which tended to establish his own personal character, which he trusted would be found, when traced back to his nativity, to stand the test; and that his right to a seat in the Senate would also stand upon an equally just foundation. Mr. Lewis denied having ever seen the affidavit of Mr. Webster, until it was shown him at the time the examination before the committee was going forward. Mr. GALLATIN recriminated, that the clause of which he took notice, was not in the affidavit when Mr. Webster brought it to the committee, and that he had permitted it to be added with great reluctance. It was only the recital of a few words which passed between Mr. G. and Mr. W. in jest, some years since, wherein Mr. G. had ironically said his name was Sidney, probably alluding to some essays that had appeared in the newspapers under that signature, which had been generally attributed to the pen of another gentleman in the State. Mr. JACKSON, in order to bring the merits of the subject directly before the Senate, said he would move a resolution, that would have that effect; but upon Mr. Lewis's observing, that he had not yet closed his arguments, and at the instance of Mr. BUTLER, from South Carolina, who said he would second Mr. JACKSON's motion hereafter, it was withdrawn for the present. _Ordered_, That the further consideration thereof be postponed until to-morrow. SATURDAY, February 22. _Contested Election._ The Senate resumed the consideration of the report of the committee on the petition of Conrad Laub, and others, respecting the election of Mr. GALLATIN to be a Senator of the United States. The greater part of the day was taken up by Mr. Lewis's pleadings, wherein he entered into a very extensive field of reasoning, and quoted a great number of authorities, in support of the principles on which he had set out last Thursday, and to prove that in the true sense of the Constitution of the United States, as well as of that of the State of Pennsylvania, Mr. GALLATIN was not duly qualified for the office of a Senator, and therefore, he trusted that the honorable Senate, upon mature reflection, would vacate his seat. Mr. GALLATIN closed his defence in a short speech, wherein he quoted _Vattel_, p. 167, and explained the 42d section of the Constitution of Pennsylvania, the liberal construction of which, he said, was in his favor, and the construction contended for by the counsel, absurd. He finished by reading a passage from _Lord Bacon's_ works, to show that where there is any doubt in the laws, it should operate in favor of the defendant, and he accordingly made no doubt but that the Senate would validate his election. _Ordered_, That the further consideration of the subject be postponed until Monday next. A motion was made as follows: "_Resolved_, That ALBERT GALLATIN, returned to this House as a member for the State of Pennsylvania, is duly qualified for, and elected to, a seat in the Senate of the United States." _Ordered_, That the consideration of this motion be postponed until Monday next, and that a number of copies of the fourth article of the First Confederation of the United States be printed for the use of the Senate. MONDAY, February 24. The Senate resumed the consideration of the motion made the twenty-second instant, on the report of the committee on the petition of Conrad Laub, and others, respecting the election of Mr. GALLATIN to be a Senator of the United States; and, after progress, _Ordered_, That the further consideration thereof be postponed until to-morrow. FRIDAY, February 28. The Senate resumed the consideration of the 22d instant, on the report of the committee on the petition of Conrad Laub, and others, respecting the election of Mr. GALLATIN to be a Senator of the United States. And, on the question to agree to the motion, as follows: "_Resolved_, That ALBERT GALLATIN, returned to this House as a member for the State of Pennsylvania, is duly qualified for, and elected to, a seat in the Senate of the United States:" It passed in the negative--yeas 12, nays 14, as follows: YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, Martin, Monroe, Robinson, and Taylor. NAYS.--Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, King, Livermore, Mitchell, Morris, Potts, Strong, and Vining. On motion that it be "_Resolved_, That the election of ALBERT GALLATIN to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States:" A motion was made to divide the question at the word "void;" and, On motion to agree to the first paragraph of the motion so divided, it passed in the affirmative--yeas 14, nays 12, as follows: YEAS.--Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, King, Livermore, Mitchell, Morris, Potts, Strong, and Vining. NAYS.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, Martin, Monroe, Robinson, and Taylor. On motion to adopt the resolution as follows: "_Resolved_, That the election of ALBERT GALLATIN to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States:" It passed in the affirmative--yeas 14, nays 12. _Resolved_, That an attested copy of the resolution of the Senate, declaring the election of ALBERT GALLATIN to be void, be transmitted by the PRESIDENT of the Senate to the Executive of the Commonwealth of Pennsylvania. FRIDAY, March 7. A message from the House of Representatives informed the Senate, that the House of Representatives have passed a bill, entitled "An act to prohibit the carrying on the slave trade from the United States to any foreign place or country;" also, a bill, entitled "An act limiting the time for presenting claims for destroyed certificates of certain descriptions;" in which bills, severally, they desire the concurrence of the Senate. THURSDAY, March 13. The bill authorizing and directing the settlement of the accounts of Major General LAFAYETTE was read the third time. _Resolved_, That this bill pass, that it be engrossed, and that the title thereof be "An act allowing to Major General LAFAYETTE his pay and emoluments while in the service of the United States." WEDNESDAY, March 19. The bill sent from the House of Representatives for concurrence, entitled "An act to prohibit the carrying on the slave trade from the United States to any foreign place or country," was read the third time and passed. THURSDAY, March 20. The bill to authorize the PRESIDENT OF THE UNITED STATES, in certain cases, to alter the place for holding a session of Congress, was read the second time. MONDAY, March 24. KENSEY JOHNS appeared and produced his credentials of an appointment by the Governor of the State of Delaware as a Senator for the United States, which were read. Whereupon, it was moved that they be referred to the consideration of the Committee of Elections before the said KENSEY JOHNS should be permitted to qualify, who are directed to report thereon; and it passed in the affirmative--yeas 13, nays 12, as follows: YEAS.--Messrs. Bradley, Brown, Burr, Edwards, Gunn, Hawkins, Jackson, Langdon, Livermore, Martin, Monroe, Robinson, and Taylor. NAYS.--Messrs Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Izard, Mitchell, Morris, Potts, Rutherford, Strong, and Vining. The Senate resumed the second reading of the bill to authorize the PRESIDENT OF THE UNITED STATES, in certain cases, to alter the place for holding a session of Congress. TUESDAY, March 25. The bill to authorize the PRESIDENT OF THE UNITED STATES, in certain cases, to alter the place for holding a session of Congress, was read the third time; and, being amended, _Resolved_, That this bill pass, that it be engrossed, and that the title thereof be, "An act to authorize the PRESIDENT OF THE UNITED STATES, in certain cases, to alter the place of holding a session of Congress." WEDNESDAY, March 26. The bill, sent from the House of Representatives for concurrence, entitled "An act limiting the time for presenting claims for destroyed certificates of certain descriptions," was read the third time. _Resolved_, That this bill pass with amendments. A message from the House of Representatives informed the Senate, that the House have passed "A resolution laying an embargo on the vessels in the ports of the United States;" in which they desire the concurrence of the Senate. FRIDAY, March 28. The Senate resumed the consideration of the report of the Committee of Elections, to whom was referred the credentials of Kensey Johns, appointed by the Executive of the State of Delaware to be a Senator of the United States; which report is as follows: "The Committee of Elections, to whom were referred the credentials of an appointment by the Governor of the State of Delaware, of Kensey Johns, as a Senator of the United States, having had the same under consideration, report-- "That George Read, a Senator for the State of Delaware, resigned his seat upon the 18th day of December, 1793, and during the recess of the Legislature of said State. "That the Legislature of the said State met in January, and adjourned in February, 1794. "That, upon the 19th day of March, and subsequent to the adjournment of the said Legislature, Kensey Johns was appointed, by the Governor of said State, to fill the vacancy occasioned by the resignation aforesaid. "Whereupon, the committee submit the following resolution: "_Resolved_, That Kensey Johns, appointed by the Governor of the State of Delaware, as a Senator of the United States, for said State, is not entitled to a seat in the Senate of the United States; a session of the Legislature of the said State having intervened between the resignation of the said George Read and the appointment of the said Kensey Johns." On the question to agree to this report, it passed in the affirmative--yeas 20, nays 7, as follows: YEAS.--Messrs. Bradford, Bradley, Brown, Burr, Butler, Cabot, Edwards, Ellsworth, Frelinghuysen, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Mitchell, Monroe, Robinson, and Taylor. NAYS.--Messrs. Foster, Izard, Morris, Potts, Rutherford, Strong, and Vining. _Resolved_, That an attested copy of the resolution of the Senate, on the appointment of Kensey Johns to be a Senator of the United States, be transmitted, by the PRESIDENT of the Senate, to the Executive of the State of Delaware. TUESDAY, May 20. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ In the communications which I have made to Congress during the present session relative to foreign nations, I have omitted no opportunity of testifying my anxiety to preserve the United States in peace. It is peculiarly, therefore, my duty, at this time to lay before you the present state of certain hostile threats against the territories of Spain in our neighborhood. The documents which accompany this message develope the measures which I have taken to suppress them, and the intelligence which has been lately received. It will be seen from thence that the subject has not been neglected; that every power vested in the Executive on such occasions has been exerted; and that there was reason to believe that the enterprise projected against the Spanish dominions was relinquished. But it appears to have been revived upon principles which set public order at defiance, and place the peace of the United States in the discretion of unauthorized individuals. The means already deposited in the different departments of Government are shown, by experience, not to be adequate to these high exigencies, although such of them as are lodged in the hands of the Executive shall continue to be used with promptness, energy, and decision, proportioned to the case. But I am impelled, by the position of our public affairs, to recommend that provision be made for a stronger and more vigorous opposition than can be given to such hostile movements under the laws as they now stand. G. WASHINGTON. UNITED STATES, _May_ 20, 1794. The Message and papers therein referred to were read, and ordered to lie for consideration. WEDNESDAY, May 21. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ I lay before you, in confidence, sundry papers by which you will perceive the state of affairs between us and the Six Nations, and the probable cause to which it is owing; and also certain information, whereby it would appear that some encroachment was about to be made on our territory by an officer and party of British troops. Proceeding upon a supposition of the authenticity of this information, although of a private nature, I have caused the representation to be made to the British Minister, a copy of which accompanies this Message. It cannot be necessary to comment upon the very serious nature of such an encroachment, nor to urge that this new state of things suggests the propriety of placing the United States in a posture of effectual preparation for an event which, notwithstanding the endeavors making to avert it, may, by circumstances beyond our control, be forced upon us. G. WASHINGTON. UNITED STATES, _May 21, 1794._ The Message and papers therein referred to were read, and ordered to lie for consideration. MONDAY, June 9. A message from the House of Representatives informed the Senate, that the House, having finished the business of the session, are about to adjourn. _Ordered_, That the Secretary notify the House of Representatives, that the Senate likewise, having finished the business of the session, are about to adjourn; and, he having reported that he had delivered the message, the PRESIDENT of the Senate, conformably to the resolution of the 5th instant, adjourned the Senate to the day appointed by law for the next meeting of Congress. THIRD CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, December 2, 1793. This being the day appointed by the constitution for the meeting of the present Congress, the following members appeared and took their seats: _From New Hampshire._--NICHOLAS GILMAN, JOHN S. SHERBURNE, JEREMIAH SMITH, and PAINE WINGATE. _From Massachusetts._--SHEARJASHUB BOURNE, DAVID COBB, HENRY DEARBORN, BENJAMIN GOODHUE, SAMUEL HOLTEN, WILLIAM LYMAN, THEODORE SEDGWICK, GEORGE THATCHER, and ARTEMAS WARD. _From Connecticut._--AMASA LEARNED, URIAH TRACEY, JONATHAN TRUMBULL, and JEREMIAH WADSWORTH. _From Vermont._--ISRAEL SMITH. _From New York._--THEODORUS BAILEY, EZEKIEL GILBERT, HENRY GLENN, JAMES GORDON, SILAS TALBOT, JOHN E. VAN ALLEN, PHILIP VAN CORTLANDT, PETER VAN GAASBECK, and JOHN WATTS. _From New Jersey._--JOHN BEATTY, ELIAS BOUDINOT, LAMBERT CADWALADER, ABRAHAM CLARK, and JONATHAN DAYTON. _From Pennsylvania._--JAMES ARMSTRONG, WILLIAM FINDLAY, THOMAS FITZSIMONS, ANDREW GREGG, THOMAS HARTLEY, WILLIAM IRVINE, JOHN WILKES KITTERA, FREDERICK AUGUSTUS MUHLENBERG, PETER MUHLENBERG, THOMAS SCOTT, and JOHN SMILIE. _From Maryland._--GEORGE DENT and SAMUEL SMITH. _From Virginia._--WILLIAM B. GILES, CARTER B. HARRISON, JOHN HEATH, RICHARD BLAND LEE, JAMES MADISON, ANDREW MOORE, ANTHONY NEW, JOHN NICHOLAS, FRANCIS PRESTON, ROBERT RUTHERFORD, ABRAHAM VENABLE, and FRANCIS WALKER. _From Kentucky._--CHRISTOPHER GREENUP. _From North Carolina._--THOMAS BLOUNT, WILLIAM JOHNSON DAWSON, MATTHEW LOOKE, NATHANIEL MACON, and ALEXANDER MEBANE. _From South Carolina._--WILLIAM SMITH. _From Georgia._--ABRAHAM BALDWIN and THOMAS P. CARNES. A quorum of the members being present, the House proceeded to ballot for a Speaker, when it appeared that FREDERICK A. MUHLENBERG, one of the members from Pennsylvania, was elected; whereupon he was conducted to the chair; and made his acknowledgments to the House.[47] The House then proceeded, in the same manner, to the appointment of a Clerk, when JOHN BECKLEY was appointed. The usual oath was then administered to the members. Messages were interchanged between the two Houses, announcing their formation and readiness to proceed to business. Joseph Wheaton was appointed Sergeant-at-Arms, Gifford Dally as Doorkeeper, and Thomas Claxton as Assistant Doorkeeper. A joint committee was appointed by the two Houses to wait on the PRESIDENT OF THE UNITED STATES, to inform him that a quorum of the two Houses is assembled, and ready to receive any communication that he may think proper to make to them. _Resolved_, That two Chaplains, of different denominations, be appointed, one by each House, to interchange weekly. _Resolved_, That a standing Committee of Elections be appointed; also a committee to report rules and orders of proceeding. TUESDAY, December 3. JOSEPH MCDOWELL and BENJAMIN WILLIAMS, from North Carolina, appeared, and took their seats. A message from the Senate announced their readiness to receive the communication from the PRESIDENT OF THE UNITED STATES. The SPEAKER and members withdrew to the Senate Chamber, where the PRESIDENT attended, and delivered his Speech to the two Houses, which will be found in the proceedings of the Senate. On the return of the members, the Speech was committed to a Committee of the Whole. WEDNESDAY, December 4. PELEG COFFIN, Jr., from Massachusetts, WILLIAM MONTGOMERY, from Pennsylvania, and WILLIAM VANS MURRAY, from Maryland, appeared, produced their credentials, and took their seats in the House; the oath to support the Constitution of the United States being first administered to them by the SPEAKER, according to law. The House resolved itself into a Committee of the whole House on the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress; and, after some time spent therein, the Chairman reported that the committee had had the said Speech under consideration, and come to a resolution thereupon; which was twice read, and agreed to by the House, as follows: _Resolved_, That it is the opinion of this committee that a respectful Address ought to be presented by the House of Representatives to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress, at the commencement of this session, containing assurances that this House will take into consideration the various and important matters recommended to their attention. _Ordered_, That Messrs. MADISON, SEDGWICK, WATTS, HARTLEY, and SAMUEL SMITH, be appointed a committee to prepare an Address pursuant to the said resolution. THURSDAY, December 5. Mr. MADISON, from the committee appointed, presented an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress; which was read, and ordered to be committed to a Committee of the whole House to-morrow. FRIDAY, December 6. JAMES HILLHOUSE, from Connecticut, and JOSIAH PARKER, from Virginia, appeared, and took their seats. Mr. WILLIAM SMITH, from the Standing Committee of Elections, reported that the committee had, in part, examined the certificates and other credentials of the members returned to serve in this House, and had agreed upon a report; which was read, and is as follows: "It appears to your committee, that the credentials of the following members are sufficient to entitle them to take their seats in the House, to wit:" [After enumerating the names of the members whose credentials were examined, the report concludes:] "Your committee further report that, in the case of JOHN PATTON, returned as a member for the State of Delaware, the Executive of the said State have, together with the return, transmitted a protest, made to them by Henry Latimer, of the said State, against the return of the said JOHN PATTON." _Ordered_, That the said report do lie on the table. The House resolved itself into a Committee of the whole House on the Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress; and, after some time spent therein, the Chairman reported that the committee had had the said Address under consideration, and made no amendment thereto. _Resolved, unanimously_, That this House doth agree to the said Address, in the words following: SIR: The Representatives of the people of the United States, in meeting you for the first time since you have been again called, by a unanimous suffrage, to your present station, find an occasion, which they embrace with no less sincerity than promptitude, for expressing to you their congratulations on so distinguished a testimony of public approbation, and their entire confidence in the purity and patriotism of the motives which have produced this obedience to the voice of your country. It is to virtues which have commanded long and universal reverence, and services from which have flowed great and lasting benefits, that the tribute of praise may be paid without the reproach of flattery; and it is from the same sources that the fairest anticipations may be derived in favor of the public happiness. The United States having taken no part in the war which had embraced in Europe the Powers with whom they have the most extensive relations, the maintenance of peace was justly to be regarded as one of the most important duties of the Magistrate charged with the faithful execution of the laws. We accordingly witness, with approbation and pleasure, the vigilance with which you have guarded against an interruption of that blessing, by your Proclamation, admonishing our citizens of the consequences of illicit or hostile acts towards the belligerent parties; and promoting, by a declaration of the existing legal state of things, an easier admission of our right to the immunities belonging to our situation. The connection of the United States with Europe has evidently become extremely interesting. The communications which remain to be exhibited to us will, no doubt, assist in giving us a fuller view of the subject, and in guiding our deliberations to such results as may comport with the rights and true interests of our country. We learn, with deep regret, that the measures, dictated by a love of peace, for obtaining an amicable termination of the afflicting war on our frontiers, have been frustrated, and that a resort to offensive measures should have again become necessary. As the latter, however, must be rendered more satisfactory, in proportion to the solicitude for peace, manifested by the former, it is to be hoped they will be pursued under the better auspices, on that account, and be finally crowned with more happy success. In relation to the particular tribe of Indians against whom offensive measures have been prohibited, as well as on all the other important subjects which you have presented to our view, we shall bestow the attention which they claim. We cannot, however, refrain, at this time, from particularly expressing our concurrence in your anxiety for the regular discharge of the public debts, as fast as circumstances and events will permit, and, in the policy of removing any impediments that may be found in the way of a faithful representation of public proceedings throughout the United States, being persuaded, with you, that on no subject more than the former can delay be more injurious, or an economy of time more valuable; and that, with respect to the latter, no resource is so firm for the Government of the United States as the affections of the people, guided by an enlightened policy. Throughout our deliberations we shall endeavor to cherish every sentiment which may contribute to render them conducive to the dignity as well as to the welfare of the United States. And we join with you in imploring that Being, on whose will the fate of nations depends, to crown with success our mutual endeavors. _Resolved_, That Mr. SPEAKER, attended by the House, do present the said Address, and that Mr. MADISON, Mr. SEDGWICK, and Mr. HARTLEY, be a committee to wait on the PRESIDENT, to know when and where it will be convenient for him to receive the same. Mr. MADISON, from the committee appointed to wait on the PRESIDENT OF THE UNITED STATES, to know when and where it will be convenient for him to receive the Address of this House, in answer to his Speech to both Houses of Congress, reported that the committee had waited on the PRESIDENT, who signified to them that it would be convenient to him to receive the said Address at 12 o'clock, to-morrow, at his own house. SATURDAY, December 7. PELEG WADSWORTH, from Massachusetts, and JOSEPH NEVILLE, from Virginia, appeared, produced their credentials, and took their seats. The SPEAKER, attended by the House, then withdrew to the house of the PRESIDENT OF THE UNITED STATES, and there presented to him the Address of this House, in answer to his Speech to both Houses of Congress; to which the PRESIDENT made the following reply: GENTLEMEN: I shall not affect to conceal the cordial satisfaction which I derive from the Address of the House of Representatives. Whatsoever those services may be which you have sanctioned by your favor, it is a sufficient reward that they have been accepted as they were meant. For the fulfilment of your anticipations of the future, I can give no other assurance than that the motives which you approve shall continue unchanged. It is truly gratifying to me to learn that the Proclamation has been considered as a seasonable guard against the interruption of the public peace. Nor can I doubt that the subjects which I have recommended to your attention as depending on Legislative provisions, will receive a discussion suited to their importance. With every reason, then, it may be expected that your deliberations, under the Divine blessing, will be matured to the honor and happiness of the United States. G. WASHINGTON. MONDAY, December 9. GABRIEL CHRISTIE, from Maryland, THOMAS CLAIBORNE and GEORGE HANCOCK, from Virginia, JOSEPH WINSTON, from North Carolina, JOHN HUNTER and ANDREW PICKENS, from South Carolina, appeared, produced their credentials, and took their seats in the House. TUESDAY, December 10. The House resumed the reading of the communications received from the PRESIDENT OF THE UNITED STATES, on Thursday last, and made a further progress therein. WEDNESDAY, December 11. BENJAMIN BOURNE and FRANCIS MALBONE, from Rhode Island, appeared, produced their credentials, and took their seats in the House. FRIDAY, December 13. THOMAS TREDWELL, from New York, and JOHN PATTON, from Delaware, appeared, produced their credentials, and took their seats. _Ordered_, That a committee be appointed to prepare and bring in a bill to establish a uniform system of bankruptcy throughout the United States; and that Mr. GILES, Mr. WILLIAM SMITH, Mr. AMES, Mr. HARTLEY, Mr. HILLHOUSE, Mr. FITZSIMONS, and Mr. BOUDINOT, be the said committee. MONDAY, December 16. SAMUEL DEXTER, Junior, from Massachusetts, JOSHUA COIT and ZEPHANIAH SWIFT, from Connecticut, and RICHARD WINN, from South Carolina, appeared, produced their credentials, and took their seats. THURSDAY, December 19. The SPEAKER laid before the House a letter from the Secretary of State, accompanying a report on the privileges and restrictions on the commerce of the United States in foreign countries, made pursuant to a resolution of the House of the twenty-third of February, one thousand seven hundred and ninety-one; which was read, and ordered to be committed to the Committee of the whole House, to whom are committed the confidential communications from the PRESIDENT respecting the measures which have been pursued for obtaining a recognition of the treaty between the United States and Morocco, and for the ransom of prisoners and establishment of peace with the Algerines. FRIDAY, December 20. WILLIAM HINDMAN, from Maryland, and SAMUEL GRIFFIN, from Virginia, appeared, produced their credentials, and took their seats. MONDAY, December 23. ALEXANDER D. ORR, from Kentucky, appeared, produced his credentials, and took his seat in the House. THURSDAY, December 26. A petition of Abram Trigg, of the State of Virginia, was presented to the House and read, complaining of an undue election and return of Francis Preston, to serve as a member of this House for the said State. _Ordered_, That the said petition be referred to the Committee of Elections; that they do examine the matter thereof, and report the same, with their opinion thereon, to the House. FRIDAY, December 27. DANIEL HEISTER, from Pennsylvania, appeared, produced his credentials, and took his seat in the House. WEDNESDAY, January 1, 1794. URIAH FORREST and THOMAS SPRIGG, from Maryland, appeared, produced their credentials, and took their seats in the House. THURSDAY, January 2. ISAAC COLES, from Virginia, and WILLIAM BARRY GROVE, from North Carolina, appeared, produced their credentials, and took their seats in the House. FRIDAY, January 3. _Commerce of the United States._[48] The House resolved itself into a Committee of the whole House on the Report of the Secretary of State on the privileges and restrictions on the commerce of the United States in foreign countries. Mr. MADISON, after some general observations on the report, entered into a more particular consideration of the subject. He remarked, that the commerce of the United States is not, at this day, on that respectable footing to which, from its nature and importance, it is entitled. He recurred to its situation previous to the adoption of the constitution, when conflicting systems prevailed in the different States. The then existing state of things gave rise to that Convention of Delegates from the different parts of the Union, who met to deliberate on some general principles for the regulation of commerce, which might be conducive, in their operation, to the general welfare, and that such measures should be adopted as would conciliate the friendship and good faith of those countries who were disposed to enter into the nearest commercial connections with us. But what has been the result of the system which has been pursued ever since? What is the present situation of our commerce? From the situation in which we find ourselves after four years' experiment, he observed, that it appeared incumbent on the United States to see whether they could not now take measures promotive of those objects for which the Government was in a great degree instituted. Measures of moderation, firmness, and decision, he was persuaded, were now necessary to be adopted, in order to narrow the sphere of our commerce with those nations who see proper not to meet us on terms of reciprocity. Mr. M. then read the following resolutions: [The principle of these resolutions will be best seen in the debates upon them.] Mr. M. took a general view of the probable effects which the adoption of something like the resolutions he had proposed, would produce. They would produce, respecting many articles imported, a competition which would enable countries who do not now supply us with those articles, to do it, and would increase the encouragement on such as we can produce within ourselves. We should also obtain an equitable share in carrying our own produce; we should enter into the field of competition on equal terms, and enjoy the actual benefit of advantages which nature and the spirit of our people entitle us to. He adverted to the advantageous situation this country is entitled to stand in, considering the nature of our exports and returns. Our exports are bulky, and therefore must employ much shipping, which might be nearly all our own: our exports are chiefly necessaries of life, or raw materials, the food for the manufacturers of other nations. On the contrary, the chief of what we receive from other countries, we can either do without, or produce substitutes. It is in the power of the United States, he conceived, by exerting her natural rights, without violating the rights, or even the equitable pretensions of other nations--by doing no more than most nations do for the protection of their interests, and much less than some, to make her interests respected; for, what we receive from other nations are but luxuries to us, which, if we choose to throw aside, we could deprive part of the manufacturers of those luxuries, of even bread, if we are forced to the contest of self-denial. This being the case, our country may make her enemies feel the extent of her power. We stand, with respect to the nation exporting those luxuries, in the relation of an opulent individual to the laborer, in producing the superfluities for his accommodation; the former can do without those luxuries, the consumption of which gives bread to the latter. He did not propose, or wish that the United States should at present go so far in the line which his resolutions point to, as they might go. The extent to which the principles involved in those resolutions should be carried, will depend upon filling up the blanks. To go to the very extent of the principle immediately, might be inconvenient. He wished, only, that the Legislature should mark out the ground on which we think we can stand; perhaps it may produce the effect wished for, without unnecessary irritation; we need not at first go every length. Another consideration would induce him, he said, to be moderate in filling up the blanks--not to wound public credit. He did not wish to risk any sensible diminution of the public revenue. He believed that if the blanks were filled with judgment, the diminution of the revenue, from a diminution in the quantity of imports, would be counterbalanced by the increase in the duties. The last resolution he had proposed, he said, is, in a manner, distinct from the rest. The nation is bound by the most sacred obligation, he conceived, to protect the rights of its citizens against a violation of them from any quarter; or, if they cannot protect, they are bound to repay the damage. It is a fact authenticated to this House by communications from the Executive, that there are regulations established by some European nations; contrary to the Law of Nations, by which our property is seized and disposed of in such a way that damages have accrued. We are bound either to obtain reparation for the injustice, or compensate the damage. It is only in the first instance, no doubt, that the burden is to be thrown upon the United States. The proper department of Government will, no doubt, take proper steps to obtain redress. The justice of foreign nations will certainly not permit them to deny reparation when the breach of the Law of Nations appears evidently; at any rate, it is just that the individual should not suffer. He believed the amount of the damages that would come within the meaning of this resolution, would not be very considerable. Mr. M.'s resolutions being seconded, were presented and read by the Clerk. Mr. W. SMITH rose to make some remarks on the observations of Mr. MADISON, when a motion was made by Mr. FITZSIMONS, that the committee should rise, and report progress, and that the House should give order for printing the resolutions. After some further remarks by two or three members, Mr. MADISON said he had no wish to precipitate the discussion; he was content that the committee should now rise, and that a future early day should be assigned. MONDAY, January 6. JAMES GILLESPIE, from North Carolina, appeared, produced his credentials, and took his seat in the House. _Pay of Soldiers._ The House resolved itself into a Committee of the whole House on the bill for completing and better supporting the Military Establishment of the United States. The bill being read, On the clause of the bill for augmenting the pay of the soldiers from three to four dollars per month, Mr. IRVINE proposed an addition of a fifth dollar, which seemed to meet the unanimous sense of the members; but Mr. CLARK thought this last augmentation too great. They might, in this way of proceeding, raise the pay in time to ten dollars a month. Mr. SCOTT was of opinion that there was no just proportion between the wages of ordinary labor and that of military service. He could not hire a workman, who was to sleep at peace in his bed, and to dine at a good table, for the pay that was given to a soldier for enduring the hardships of his dangerous profession. An augmentation of their pay would flatter the troops. It would put them in good humor; and therefore he hoped that the five dollars would be carried through the House. Mr. SMILIE said, that the expense of living had been considerably raised in every part of the United States. The pay of the soldiers ought, in common justice, to be advanced in an equal degree with that of the other persons employed in the service of the State. Congress had lately received a petition from some gentlemen employed in the public offices of Philadelphia. The officers of the army had been talking of a similar necessity of an advance in their pay. The United States ought to pay well, that they might obtain good men. Many recruits had, upon late occasions, enlisted, and several of them in Philadelphia, who never should have been admitted into the Military Establishment of any nation whatever. Mr. WADSWORTH did not see any reason for the proposed additional dollar per month. If he had thought it necessary, he should have been very ready to mention it. In the States north of Pennsylvania, the wages of a common laborer were not, upon the whole, superior to those of a common soldier. It had been alleged that, by augmenting the pay of the troops, we should get better men. This was a doctrine which he, for one, did not understand. The present Western Army were as good troops as ever went into the field, and much better than the late Continental Army. Men of a sober character did not and would not enlist. Recruits might have very good morals, and it was certain that many honest men did not love labor. Curiosity, levity, the heat of youth, and other very excusable motives, sent people to the army; but it never was, nor never will be, the place where a thoughtful and industrious private man would be ambitious to exert his talents. For this reason, he was convinced that to enlarge the pay would answer no good purpose. As to the militia, who were, many of them, substantial people, it was in vain to imagine that they would fulfil the end of an army in the Indian war. They had been tried, and the experiment had failed. He again adverted to the impossibility of supplying the ranks with recruits above the most ordinary classes of life. He never had seen an army, such as it was believed that the additional dollar would assemble, and he despaired ever to see such an army. There was, however, an act of bounty, which might be of infinite service to the troops, and which he should take a future opportunity of moving. He referred to a provision for the widows and children of such soldiers as should happen to lose their lives in the service. Mr. BOUDINOT said, that he should be very sorry to recommend the augmentation, if he thought that it would induce farmers, and sober, industrious people to quit their families and professions in exchange for a military life. This, he thought, would indeed be a very alarming consequence, and, did he apprehend it, he should undoubtedly oppose the intended increase. He had no apprehensions of that kind. America would be in a very bad situation, indeed, if an additional pay of twelve dollars a year could bribe a farmer or manufacturer to enlist. He should look very strange at any of his neighbors who should tell him that they had embraced such an offer. Instead of augmenting the pay, perhaps it was better to add something to the rations; those, for example, of salt and flour. He thought it safest to agree to the four dollars, because if they voted for five, the bill would probably be thrown out of the other House; and thus, by grasping at too much, the movers of the amendment would lose the bill altogether. Originally, troops had been raised for less than two dollars per month. The pay had since been augmented to three, and was now on the way of being raised to four. He wished to make its advances gradual. If we looked at the situations of other countries, and contemplated the state of their finances, we should be convinced that America paid her troops as well in proportion to her ability as any other people in the world, and that her soldiers had no right to complain. Mr. MONTGOMERY spoke a few words in favor of an advance to five dollars. Mr. SCOTT said, that Pennsylvania had some time ago raised a few companies of soldiers for her frontier service, and given them two pounds ten shillings currency per month, which was equal to six dollars and two-thirds. In consequence of this, the companies had been filled with some of the most respectable kind of people in the country. They were quite of a different class from the recruits raised for the Western Army. He wished to try the five dollars. This superior pay was reported to have hurt the Continental recruiting service. He thought it very possible that such had been the case. If Government give the proposed five dollars, the Continental Army might, perhaps, get all the levies which it wanted from these very companies. Mr. HUNTER would have voted for six dollars. Mr. BEATTY said, that he was for giving five dollars, from a conviction that it was requisite for the service. Mr. SMILIE was decidedly for the additional augmentation. The recruits, he said, who had been raised in this city were sad fellows, and not fit to be trusted. Better pay would bring forward better men. Mr. SMITH said that, as to the rate of labor, good men were hired to work in Vermont for eighteen pounds a year, which is equal to four dollars per month, and out of that they find their own clothes. He thought it a very dangerous plan to raise the wages of soldiers at this time, when every article was above its natural price; because, when things return to their old level, it would be impossible to reduce their wages. The people of Europe had, by their wars, increased the demand for the produce of our farms, and this had raised the wages of labor. The members of Congress had six dollars per day, and it would be no easy matter to alter that, which he seemed to hint might not be quite improper. He thought that high pay would only serve to make the soldiers get drunk. It would be much better to give them some substantial gratification at the end of the service. Mr. WADSWORTH said that the army, in getting four dollars, got plenty, and he despaired of seeing five dollars pass through that House; but, were they to vote twenty dollars, they never would be able to enlist that class of men whom it was expected five dollars would collect. A member had mentioned, as a proof of the possibility of enlisting the sons of farmers, the instance of a party in one of the New England States, who had formed themselves into a military body, and had gone westward in quest of a settlement, but were cut to pieces by the Indians. He knew this; and he had likewise heard of others who had since gone from the same quarter, and upon the same errand. He had inquired about their characters, and had found, just as he had expected, that they were very honest, good sort of people, but somewhat of a rambling disposition, and not remarkably industrious. As to the notion of enlisting men, and attaching them to their country, by five dollars a month, it would not do. The old Continental Army were very good soldiers, but certainly some of them did not fight for the sake of their country, since they deserted by scores. They were, however, brought back, and fought very well. Their reasons for deserting, he did not pretend to know; but this he knew, that they were very idle and very worthless fellows, which did not hinder them from doing their duty. Mr. W. added, that it was a mistake to propose giving five dollars a month for fear that we should not be able to get recruits. In a short time our communication by sea would be cut off. We would likewise be prevented from emigrations into the back country. Recruits would then be had in the greatest abundance for four dollars a month, as great numbers of people would then be thrown out of employment, and enlist for want of it. The amendment to the bill, of adding two dollars instead of one, was rejected. Mr. CLARK then moved, as an amendment of the bill, that there should be an addition of four ounces of bread or flour, and four ounces of meat to each ration. Mr. HARTLEY was for augmenting the rations. He knew that they were too small. In cultivated countries they might do, but not in the backwoods, where vegetables were not to be had. Mr. WADSWORTH was convinced that the rations were sufficient unless on a march. He spoke, he said, from experience. Mr. GILES had been frequently informed by officers in the army, that the rations were all defective. In the backwoods, the soldiers had been often reduced to such distress for want of vegetables, as to go in search of acorns to supply their place. Mr. FITZSIMONS said, that he had been informed that the principal objection to the rations was the inferior quality of the meat, and that this arose from the leanness of the cattle, as being exhausted by hard driving. Instead, therefore, of a regular increase, it might perhaps be better to provide for accidental contingencies. Mr. MURRAY moved, and his motion was seconded, to amend the amendment by striking out the words, and "four ounces of meat." Mr. SMITH said, that an aide-de-camp, who was his relation, and now serving in the army, had wrote him that they were just now well fed, well clothed, in good health, and as good spirits as an army had ever enjoyed. The reason of the common rations of provisions failing in a march, was owing to the waste in cooking. The amendment of Mr. CLARK, and the additional amendment of Mr. MURRAY, were both withdrawn. The committee now rose and reported the amendment, and the bill and amendment were ordered to lie on the table. _Resolved_, That a committee be appointed to report whether any, and what, alteration ought to be made in the ration now allowed to the troops of the United States; and that Mr. IRVINE, Mr. DEARBORN, and Mr. HEISTER, be the said committee. TUESDAY, January 7. _Flag of the United States._ The House resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act making an alteration in the Flag of the United States." Mr. GOODHUE thought it a trifling business, which ought not to engross the attention of the House, when it was their duty to discuss matters of infinitely greater consequence. If we are to alter the flag from thirteen to fifteen stripes, with two additional stars, because Vermont and Kentucky have been added, we may go on adding and altering at this rate for one hundred years to come. It is very likely, before fifteen years elapse, we shall consist of twenty States. The flag ought to be permanent. Mr. LYMAN was of a different opinion. He thought it of the greatest consequence not to offend the new States. Mr. THATCHER ridiculed the idea of being at so much trouble, as a consummate specimen of frivolity. At this rate, every State should alter its public seal when an additional county or township was formed. He was sorry to see the House take up their time with such trifles. Mr. GREENUP considered it of very great consequence to inform the rest of the world that we had now two additional States. Mr. NILES was very sorry that such a matter should even for a moment have hindered the House from going into more important affairs. He did not think the alteration either worth the trouble of adopting or rejecting; but he supposed that the shortest way to get rid of it was to agree to it, and for that reason, and no other, he advised to pass it as soon as possible. The committee agreed to it, and the Chairman reported the bill. The House then took it up. Mr. BOUDINOT thought it of consequence to keep the citizens of Vermont and Kentucky in good humor. They might be affronted at our rejecting the bill. Mr. GOODHUE said, he felt for the honor of the House, when spending their time on such sort of business. But, since it must be passed, he had only to beg this favor, that it might not appear upon the journals, and go into the world as the first of the bills passed this session. Mr. MADISON was for the bill passing. Mr. GILES thought it very proper that the idea should be preserved of the number of our States, and the number of stripes corresponding. The expense was but trifling, compared with that of forming the Government of a new State. Mr. SMITH said, that this alteration would cost him five hundred dollars, and every vessel in the Union sixty. He could not conceive what the Senate meant by sending them such bills. He supposed that it must be for want of something better to do. He should indulge them, but let us have no more alterations of this sort. Let the flag be permanent. It was ordered that the bill be read a third time to-morrow. FRIDAY, January 10. _French Emigrants from St. Domingo._ Mr. SAMUEL SMITH, from the committee to whom was referred the petition of William Patterson, Samuel Sterrett, and Gustavus Scott, the committee appointed by the Legislature of Maryland to draw and distribute the moneys granted by that State for the relief of the French emigrants from the Island of St. Domingo, made a report: Mr. S. SMITH said, that there never was a more noble and prompt display of the most exalted feelings, than had been exhibited on this occasion. He believed that such a scene of distress had never before been seen in America. Three thousand fugitives had been at once landed, without the least previous expectation of their arrival. The whole inhabitants instantly assembled, and deputed a committee, of which he was one, to go on board the vessels, and examine their situation. Thirteen thousand dollars were instantly subscribed. Fifteen hundred of these people were quite helpless; three hundred and fifty of them were old men, or women without their husbands, or children without their parents. Some had credit, and some had not. Five hundred of them had been sent to France by the Minister, at the expense of the Republic; the rest remain in this country. Mr. MADISON wished to relieve the sufferers, but was afraid of establishing a dangerous precedent, which might hereafter be perverted to the countenance of purposes very different from those of charity. He acknowledged, for his own part, that he could not undertake to lay his finger on that article in the Federal Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents. And if once they broke the line laid down before them, for the direction of their conduct, it was impossible to say to what lengths they might go, or to what extremities this practice might be carried. He did not agree with the member who spoke last, that nothing like the generosity of America had ever been heard of before. As one example in contradiction to this assertion, he mentioned, that when the city of Lisbon had, in 1755, been overwhelmed by an earthquake, the Parliament of England instantly voted one hundred thousand pounds for the support of the sufferers. In doing this, they had, he believed, acted in unison with the feelings of the British nation, and such feelings did that nation the utmost honor. He likewise imagined, that the Parliament had acted agreeably to the British Constitution, which allowed them an indefinite and absolute right in disposing of the money of their constituents. But as to the American Congress, the case was widely different. He was satisfied that the citizens of the United States possessed an equal degree of magnanimity, generosity, and benevolence, with the people of Britain, but this House certainly did not possess an undefined authority correspondent with that of a British Parliament. He wished that some other mode could be devised for assisting the French sufferers than by an act of Congress. He was in hopes that some other mode, equally effectual, and less exceptionable, might be devised. As to what our Executive Government had already done, as quoted from the official despatches by the gentleman who spoke last, the inference did not apply; for in that emergency, a delay would have been equivalent to a total denial. It had been said, that we owed the French every sentiment of gratitude. It was true; but it was likewise true that we owed them something else than sentiments, for we were indebted to them a very large sum of money. One of the instalments of that debt would be due in a short time, and perhaps it might be safest for Congress to advance the sums now wanted for the French refugees, in part of that debt, and leave it to the decision of the French Ministry whether they would accept of such a payment or not. He did not wish to press this expedient upon the House, but he begged leave to submit it to their consideration; and as he had not yet been able to resolve in his own mind what line of conduct the House ought to pursue, he requested that the discussion of the question might for a short time be deferred. Mr. CLARK wished that the gentleman who spoke last would be careful of preserving consistency. It was only a few days ago that he had laid before the House a resolution, by which Congress were to indemnify all such citizens of the United States as had suffered losses by the British pirates. He supposed that for this, there would be found as little authority in the articles of the constitution, as for relieving the fugitives from Cape François. Mr. MADISON, in explanation, replied, that the two cases were widely different. The vessels of America sailed under our flag, and were under our protection, by the law of nations, which the French sufferers unquestionably were not. As to the resolution he had proposed, it was not then before the House, and hence he could not speak to it with propriety. It was very possible that the House might find it wrong, and reject it. He wished not to be misunderstood, for he was sure that every member in that House felt the warmest sympathy with the situation of the sufferers. He would be very glad to find a proper way for their relief. Mr. NICHOLAS said, that he had not been able to discover upon what authority the House were to grant the proposed donation. If the question should that day come to a vote, which he trusted it would not, he had resolved to give his voice in favor of the sufferers: but, when he returned to his constituents, he would honestly tell them that he considered himself as having exceeded his powers, and so cast himself on their mercy. He felt many obstacles to voting away this money without further deliberation. Mr. BOUDINOT declared, that he had never been able to discover any difficulty in the matter. By the law of nature, by the law of nations--in a word, by every moral obligation that could influence mankind, we were bound to relieve the citizens of a Republic who were at present our allies, and who had formerly been our benefactors. He could not for a moment endure the idea of a hesitation on such a question. When a number of our fellow-creatures had been cast upon our sympathy, in a situation of such unexampled wretchedness, was it possible that gentlemen could make a doubt whether it was our duty to relieve them? It had been said that the House was not, by the constitution, authorized to give away money for such purposes. He was satisfied, that to refuse the assistance requested, would be to act in direct opposition both to the theory and practice of the constitution. In the first place, as to the practice, it had been said that nothing of this kind had ever occurred before under the Federal Constitution. He was astonished at such an affirmation. Did not the Indians frequently come down to this city, on embassies respecting the regulating of trade, and other business--and did not the Executive, without consulting Congress at all, pay their lodgings for weeks, nay, for whole months together? and was not this merely because the Indians were unable to pay for themselves? Nobody ever questioned the propriety of that act of charity. Again; when prisoners of war were taken, there was no clause in the constitution authorizing Congress to provide for their subsistence: yet it was well known that they would not be suffered to starve. Provision was instantly made for them, before we could tell whether the nation to whom they belonged would pay such expenses, or would not pay them. It was very true that an instalment would soon be due to France, nor did he object to reimbursement in that way, if it could be so obtained. But, in the mean time, relief must be given, for he was convinced that he had still stronger obligations to support the citizens of our allies than either Indians or prisoners of war. In the second place, as to the theory of the constitution, he referred gentlemen to the first clause of the eighth section of it. By that clause Congress were warranted to provide for exigencies regarding _the general welfare_, and he was sure this case came under that description. Mr. FITZSIMONS thought that it would be expedient to lose as little time as possible in going into the committee. It was hard on the State of Maryland to support of itself such an immense number of people. Besides, the period for which that State had engaged to furnish them with subsistence was expiring; so that it was absolutely necessary to come to an early decision whether the House would assist them or not. Mr. Genet had made a discrimination among the sufferers; some of them he had promised to assist, and others, as _aristocrats_, he had disowned altogether. Mr. DEXTER read the clause referred to by Mr. BOUDINOT, but could not draw from it any such inference. He was very unwilling to vote against the proposition, and therefore solicited a delay, that he might have leisure to find proper reasons for voting in its favor. Mr. GILES was averse to precipitation in an affair of such magnitude. The report had been read for a first time to-day; it had then been read for a second time to-day. As if all this had not been sufficient, the House must likewise go into a committee this day. Like the gentleman who had just sat down, he felt many doubts as to the legality of such an act of bounty; and he wished, before he gave a vote on either side of the question, to free himself from these doubts. He considered duty to his constituents as a very solemn trust. Some personal insinuations had been cast out, as if gentlemen who professed constitutional scruples had wished to embarrass the subject. Reflections of this kind could answer no good purpose. Gentlemen (said Mr. G.) appeal to our humanity. The appeal is out of place. That is not the question; but whether, organized as we are, under the constitution, we have a right to make such a grant? He did not understand why an application was made to Congress in particular. It would have been made with greater propriety to the Provincial Assemblies, as their power over the purses of their constituents was more extensive than that of this House over the revenues of the United States. [The motion for the House resolving itself into a committee immediately was then withdrawn, and the report was committed to a Committee of the Whole on the state of the Union.] MONDAY, January 13. _Commerce of the United States._ The House again resolved itself into a Committee of the whole House on the Report of the Secretary of State on the privileges and restrictions on the commerce of the United States, in foreign countries, when Mr. SMITH (of South Carolina) rose and addressed the Chair as follows: Mr. Chairman: Among the various duties which are assigned by the constitution to the Legislature of the United States, there is, perhaps, none of a more important nature than the regulation of commerce, none more generally interesting to our fellow-citizens, none which more seriously claims our diligent and accurate investigation. It so essentially involves our navigating, agricultural, commercial, and manufacturing interest, that an apology for the prolixity of the observations which I am about to submit to the committee, will scarcely be requisite. In the view which I shall take of the question, disengaging the inquiry from all topics of a political nature, I shall strictly confine myself to those which are commercial, and which alone are, in my judgment, properly connected with the subject. Called upon to decide on propositions, merely commercial, and springing from a report, in its nature limited to commercial regulations, it would be as ill-timed, as it would be irregular, to mingle with the discussion considerations of a political nature. I shall, accordingly, reject from the inquiry every idea which has reference to the Indians, the Algerines, or the Western posts. Whenever those subjects require our deliberations, I shall not yield to any member in readiness to vindicate the honor of our country, and to concur in such measures as our best interests may demand. This line of procedure will, I trust, be deemed by those gentlemen who follow me, the only proper one, and that the debate will be altogether confined to commercial views; these will of themselves open a field of discussion sufficiently spacious, without the intervention of arguments derived from other sources. It would indeed argue a weakness of ground in the friends of the propositions, and imply a distrust of the merits of their cause, were they compelled to bolster it up with such auxiliaries, and to resort for support to arguments, not resulting from the nature of the subject, but from irrelative and extraneous considerations. The propositions, as well as the report, being predicated upon facts and principles having relation to our commerce and navigation with foreign countries, by those facts and principles, and those alone, ought the propositions to stand or fall. It will not be denied that this country is at present in a very delicate crisis, and one requiring dispassionate reflection, cool and mature deliberation. It will be much to be regretted then, if passion should usurp the place of reason, if superficial, narrow, and prejudiced views should mislead the public councils from the true path of national interest. The report of the Secretary of State, on the privileges and restrictions on the commerce of the United States in foreign countries is now before the committee. The tendency of that report (whatever may have been the design of the reporter) appears to be to induce a false estimate of the comparative condition of our commerce with certain foreign nations, and to urge the Legislature to adopt a scheme of retaliating, regulations, restrictions, and exclusions. The most striking contrast which the performance evidently aims at, is between Great Britain and France. For this reason, and as these are the two Powers with whom we have the most extensive relations in trade, I shall, by a particular investigation of the subject, endeavor to lay before the committee an accurate and an impartial comparison of the commercial systems of the two countries in reference to the United States, as a test of the solidity of the inferences which are attempted to be established by the report. A fair comparison can only be made with an eye to what may be deemed the permanent system of the countries in question. The proper epoch for it, therefore, will precede the commencement of the pending French Revolution. The commercial regulations of France during the period of the Revolution have been too fluctuating, too much influenced by momentary impulses, and, as far as they have looked towards this country with a favorable eye, too much manifesting an object of the moment, which cannot be mistaken to consider them as a part of a system. But though the comparison will be made with principal reference to the condition of our trade with France and Great Britain, antecedent to the existing revolution, the regulations of the subsequent period will perhaps not be passed over altogether unnoticed. The table which I have before me comprises the principal features of the subject within a short compass. It is the work of a gentleman of considerable commercial knowledge, and I believe may be relied on for its correctness. An attentive reference to it will, with some supplementary remarks, convey a just conception of the object; a view to conciseness and simplicity has excluded from it all articles (the production and manufactures of the United States) which are not of considerable importance. Accustomed as our ears have been to a constant panegyric on the generous policy of France towards this country in commercial relations, and to as constant a philippic on the unfriendly, illiberal, and persecuting policy of Great Britain towards us in the same relations, we naturally expect to find in a table which exhibits their respective systems, numerous discriminations in that of France in our favor, and many valuable privileges granted to us, which are refused to other foreign countries; in that of Great Britain frequent discriminations to our prejudice, and a variety of privileges refused to us which are granted to other foreign nations. But an inspection of the table will satisfy every candid mind, that the reverse of what has been supposed is truly the case--that neither in France nor the French West Indies, is there more than one solitary and important distinction in our favor, (I mean the article of fish oil,) either with regard to our exports thither, our imports from thence, or our shipping; that both in Great Britain and the British West Indies, there are several material distinctions in our favor, with regard both to our exports thither and to our imports from thence, and, as it respects Great Britain, with regard also to our shipping; that in the market of Great Britain, a preference is secured to six of our most valuable staples, by considerably higher duties on the rival articles of other foreign countries; that our navigation thither is favored by our ships, when carrying our own productions, being put upon as good a footing as their own ships, and by the exemption of several of our productions, when carried in our ships, from duties which are paid on the like articles of other foreign countries carried in the ships of those countries; and that several of our productions may be carried from the United States to the British West Indies, while the like productions cannot be carried thither from any other foreign country; and that several of the productions of those countries may be brought from thence to the United States, which cannot be carried from thence to any other foreign country. TUESDAY, January 14. _Commerce of the United States._ The House again resolved itself into a Committee of the whole House on the Report of the Secretary of State on the privileges and restrictions on the commerce of the United States in foreign countries; when Mr. MADISON rose in reply to Mr. SMITH, of South Carolina. Mr. M. began by observing that he had expected, from what was intimated yesterday, the sequel of what was then said against the resolutions before the committee; but, as there was a silence in that quarter, and no other member has risen on either side of the question, he himself would request the attention of the committee. It had been much pressed that, in the discussion of this subject, it should be viewed in its commercial relations only. He was perfectly willing to meet every objection that could be urged on that ground; but, as he conceived it impossible to do full justice to the interests of the United States without taking some collateral considerations into view, he should be obliged, in the course of his remarks, to point at the political disposition and conduct of some of the nations of Europe towards this country. The propositions immediately before the committee turned on the question, whether any thing ought to be done at this time, in the way of commercial regulations, towards vindicating and advancing our national interests. Perhaps it might be made a question with some, whether, in any case, legislative regulations of commerce were consistent with its nature and prosperity. He professed himself to be a friend to the theory which gives to industry a free course, under the impulse of individual interest and the guidance of individual sagacity. He was persuaded that it would be happy for all nations, if the barriers erected by prejudice, by avarice, and by despotism, were broken down, and a free intercourse established among them. Yet to this, as to all other general rules, there might be exceptions; and the rule itself required what did not exist--that it should be general. To illustrate this observation, he referred to the Navigation Act of Great Britain, which, not being counterbalanced by any similar acts on the part of rival nations, had secured to Great Britain no less than eleven-twelfths of the shipping and seamen employed in her trade. It is stated that, in 1660, when the British act passed, the foreign tonnage was to the British, as one to four; in 1700, less than one to six; in 1725, as one to nineteen; in 1750, as one to twelve; in 1774, nearly the same. At the commencement of the period, the tonnage was but 95,266 tons; at the end of it, 1,136,162. As another illustration, he mentioned the case where two countries happened to be in such a relation to each other, that the one, by discouraging the manufactures of the other, might not only invigorate its own, but transplant the manufacturers themselves. Here the gain would be a clear one, and the effect evidently consistent with the principle of the theory. To allow trade to regulate itself is not, therefore, to be admitted as a maxim universally sound. Our own experience has taught us that, in certain cases, it is the same thing with allowing one nation to regulate it for another. Were the United States, in fact, in commercial intercourse with one nation only, and to oppose no restrictions whatever to a system of foreign restrictions, they would, of necessity, be deprived of all share in the carriage, although their vessels might be able to do it cheapest, as well as of the only resources for defence on that side where they must always be most exposed to attack. A small burden only in foreign ports on American vessels, and a perfect equality of foreign vessels with our own in our own ports, would gradually banish the latter altogether. The subject, as had been remarked on a former occasion, was not a novel one; it was coeval with our political birth, and has at all times exercised the thoughts of reflecting citizens. As early as the year succeeding the peace, the effect of the foreign policy, which began to be felt in our trade and navigation, excited universal attention and inquietude. The first effort thought of was an application of Congress to the States for a grant of power, for a limited time, to regulate our foreign commerce, with a view to control the influence of unfavorable regulations in some cases, and to conciliate an extension of favorable ones in others. From some circumstances then incident to our situation, and particularly from a radical vice in the then political system of the United States, the experiment did not take effect. The States next endeavored to effect their purpose by separate but concurrent regulations. Massachusetts opened a correspondence with Virginia and other States, in order to bring about the plan. Here, again, the effort was abortive. Out of this experience grew the measures which terminated in the establishment of a Government competent to the regulation of our commercial interests and the vindication of our commercial rights. As these were the first objects of the people in the steps taken for establishing the present Government, they were universally expected to be among the first fruits of its operation. In this expectation, the public were disappointed. An attempt was made in different forms, and received the repeated sanction of this branch of the Legislature, but they expired in the Senate--not, indeed, as was alleged, from a dislike to the attempt altogether, but the modifications given to it. It has not appeared, however, that it was ever renewed in a different form in that House, and for some time it has been allowed to sleep in both. If the reasons which originally prevailed against measures such as those now proposed had weight in them, they can no longer furnish a pretext for opposition. When the subject was discussed in the first Congress, at New York, it was said that we ought to try the effect of a generous policy towards Great Britain; that we ought to give time for negotiating a treaty of commerce; that we ought to await the close of negotiations for explaining and executing the treaty of peace. We have now waited a term of more than four years. The treaty of peace remains unexecuted on her part, though all pretext for delay has been removed by the steps taken on ours; no treaty of commerce is either in train or in prospect; instead of relaxations in former articles complained of, we suffer new and aggravated violations of our rights. In the view which he took of the subject, he called the attention of the committee particularly to the subject of navigation, of manufactures, and of the discrimination proposed in the motion between some nations and others. On the subject of navigation, he observed that we were prohibited by the British laws from carrying to Great Britain the produce of other countries from their ports, or our own produce from the ports of other countries, or the produce of other countries from our own ports, or to send our own produce from our own or other ports in the vessels of other countries. This last restriction was, he observed, felt by the United States at the present moment. It was, indeed, the practice of Great Britain, sometimes to relax her Navigation Act so far, in time of war, as to permit to neutral vessels a circuitous carriage; but, as yet, the act was in full force against the use of them for transporting the produce of the United States. On the other hand, the laws of the United States allowed Great Britain to bring into their ports any thing she might please, from her own or from other ports, and in her own or in other vessels. In the trade between the United States and the British West Indies, the vessels of the former were under an absolute prohibition, whilst British vessels in that trade enjoyed all the privileges granted to others, even the most favored nations, in their trade with us. The inequality in this case was the more striking, as it was evident that the West Indies were dependent on the United States for the supplies essential to them, and that the circumstances which secured to the United States this advantage, enabled their vessels to transport the supplies on far better terms than could be done by British vessels. It might be regarded (he observed) as a general rule, that, where one nation consumed the necessaries of life produced by another, the consuming nation was dependent on the producing one. On the other hand, where the consumption consisted of superfluities, the producing nation was dependent on the consuming one. The United States were in the fortunate situation of enjoying both these advantages over Great Britain. They supply a part of her dominions with the necessaries of life; they consume superfluities which give bread to her people in another part. Great Britain, therefore, is under a double dependence on the commerce of the United States. She depends on them for what she herself consumes; she depends on them for what they consume. In proportion as a nation manufactures luxuries must be its disadvantages in contests of every sort with its customers. The reason is obvious. What is a luxury to the consumer is a necessary to the manufacturer. By changing a fashion or disappointing a fancy only, bread may be taken from the mouths of thousands whose industry is devoted to the gratification of artificial wants. He mentioned the case of a petition from a great body of buckle makers, presented a few years ago to the Prince of Wales, complaining of the use of strings instead of buckles in the shoes, and supplicating his Royal Highness, as giving the law to fashions, to save them from want and misery by discontinuing the new one. It was not (he observed) the Prince who petitioned the manufacturers to continue to make the buckles, but the manufacturers who petitioned their customer to buy them. The relation was similar between the American customers and the British manufacturers; and if a law were to pass for putting a stop to the use of their superfluities, or a stop were otherwise to be put to it, it would quickly be seen from which the distress and supplications would flow. Suppose that Great Britain received from us alone the whole of the necessaries she consumes, and that our market alone took off the luxuries with which she paid for them: here the dependence would be complete, and we might impose whatever terms we please on the exchange. This, to be sure, is not absolutely the case; but, in proportion as it is the case, her dependence is on us. The West Indies, however, are an example of complete dependence. They cannot subsist without our food. They cannot flourish without our lumber and our use of their rum. On the other hand, we depend on them for not a single necessary, and can supply ourselves with their luxuries from other sources. Sugar is the only article about which there was ever a question; and he was authorized to say that there was not, at the most, one-sixth of our consumption supplied from the British islands. In time of war or famine the dependence of the West Indies is felt in all its energy. It is sometimes such as to appeal to our humanity as well as our interest for relief. At this moment the Governor of Jamaica is making proclamation of their distresses. If ever, therefore, there was a case where one country could dictate to another the regulations of trade between them, it is the case of the United States and the British West Indies. And yet the gentleman from South Carolina (Mr. SMITH) had considered it as a favor that we were allowed to send our provisions in British bottoms, and in these only, to the West Indies. WEDNESDAY, January 15. _Commerce of the United States._ A proposition being made to go into a Committee of the Whole on Mr. MADISON's resolutions, The House then went into committee. Mr. FORREST, after a long pause, observed, that, as no other person appeared disposed to rise on the occasion, although he felt himself unequal to doing that justice to the subject which many others were, yet he considered it his duty to offer a few remarks which had occurred to him in the course of the debate. In all our discussions of commercial affairs, the principal point to be kept in view was the promotion of the essential and permanent interests of our country, keeping in mind this maxim, (as true in respect to nations as individuals,) that there is no friendship in trade. He then entered into a consideration of our commercial connection with Great Britain, and observed that we should avoid letting our former prejudices, or those arising from recent transactions, influence our judgments. We should not regard the favoring of the French or British nation, but study to do that which would tend to the promotion of our own commerce and the interest of our own navigation. In this pursuit, we must keep in view our relative situation with European nations, particularly those of France and Great Britain, and more particularly the latter, with whom the proposed resolutions contemplate a change. Of all possible times, (said he,) I believe this the most improper to try the experiment. If the British Government have been instrumental in letting the Algerines loose upon us; if their privateers commit acts of piracy upon our neutral flag, let it at least, in the first instance, be made matter of negotiation. Neutral nations must suffer some inconvenience; and it will be much better policy to come forward at once and say we are at war. We will not submit to vexatious insults, when they are too much to suffer, rather than make this commercial warfare, by which it is impossible, in the course of human events, but that we must be much the greatest sufferers; and how humiliating would it be, after trial, even to propose to make it a drawn battle! Let us examine the subject. Of the whole fair trade of Great Britain, taking their imports and exports into view, their trade with the United States will be found to be one-sixth, or thereabouts. Take the imports and exports of the United States, and you will find that full one-half the value of our whole trade is with Great Britain and her dependencies. Who will suffer most? She, by the interruption of one-sixth, with the means of getting most of the articles we supply, on as good terms, from other nations, with great internal sources of revenue, and a people used to bear any taxes asked of them; or we, with an interruption of one-half our trade and commerce, not so well off with respect to internal resources, and the complaints of our citizens, not accustomed to heavy taxation? Let those who rely upon the effect it will have on the English manufacturers and artisans, look back to 1773 and 1774, and recollect the effect it then had. But there is one circumstance that should have weight with every mind. It will be found that three-fourths of all the impost revenue of this country are derived from our commerce with the British. Shall we hazard an entire loss of this revenue? And if lost or greatly interrupted, from whence shall we supply its deficiency, without, at least, in their minds, oppressing the people of this country? I am not a stockholder or a bankholder. I am too poor to be either, and therefore can have no separate interest in view, and, where I am known, I shall not be charged with partiality to Great Britain; but I hope I am free from such unwarrantable prejudices as to lead me into measures to the injury of my country. I lay it down as a principle not to be controverted, that our intercourse with Great Britain, in a commercial point, (I mean, putting the mode of carriage out of account, and confining it to the importation and exportation, and restrictions and bounties thereon,) is as favorable as we can expect, and, taken in the aggregate, full as favorable as with France, their Navigation Act excepted. With respect to navigation, I have long thought it ought not to be submitted to; but are we to expect, at a moment like this, acting (as they will certainly believe we shall) under the impulse of resentment, they will waive an atom of their Navigation Act to the result of our resolutions? It is vain. Let us not hazard that which is certain, which the safeguard of experience has proved, for that we know not of. It has been mentioned as a grievance that our produce is sent to France, Holland, Spain, Portugal, &c., and that our imports are, in a great degree, confined to Great Britain. Our merchants must pay their debts, and surely it is for their interest to sell their articles for the highest price they will bring, and purchase where they can obtain cheapest. Our produce is sent to those countries to pay our debts in Great Britain. There has been nothing to lead me to a judgment how the blanks are to be filled. If, with such high duties as to prohibit the articles, our chief source of revenue will be wiped off, and the consequence may, nay, must be, direct taxation. If low, it will only exhibit, without gratifying, a resentment, and the consumers of these articles, the yeomanry of this country, will have to pay the tax. If it is said that it is intended to encourage our own factories, let us select those which we can manufacture, and lay prohibitory duties on the foreign articles. Mr. F. reprobated the idea of suffering partial or merely political motives to influence in the discussion of the subject. Commercial subjects ought to be considered in an independent point of view. He hoped, therefore, that the committee would endeavor to divest themselves of every incidental impression, originating in impulses from particular events, and contemplate the question simply on its own merits. Mr. FITZSIMONS declared that, in the course of this discussion, he had not heard one single argument advanced which, admitting the premises to be true, could persuade him to give his consent to the first of the resolutions. It was possible that he might agree to some of those that followed. He was perfectly convinced that a judicious system of regulations would be of infinite advantage to the maritime interest of America. He was of opinion that the first resolution was by far too indefinite. The substance of the whole arguments advanced on both sides tended only to establish a fact, which was already perfectly well known, that the Governments of Europe act, in regard to the commerce of the United States, just as they think proper. The lesson was a very good one, and he trusted that, with a proper attention to temporary circumstances, this country would improve by it. Mr. MADISON regarded the objection of the gentleman as entirely of a new kind. He had refused his consent to the first of the resolutions, because it was indefinite. But the propositions laid before the House a few days ago with respect to the Algerines were fully as indefinite, and yet the gentleman who spoke last had recommended them. The order of procedings in the present question is perfectly candid and regular, consonant to the practice of the House, and the practice of the gentleman himself. Mr. AMES wished, that gentlemen, instead of indefinite declamation, would lay their finger on each particular wrong that Britain had done to us. He did not know of any particular advantage that we had derived in our commerce with France. He wished to discountenance a spirit of revenge, and to ascertain on what side the benefits of our commerce lay, and wherein they consisted. He did not like unfair comparisons, Mr. NICHOLAS said, that he would not, at this time of day, attempt to detain the House any further than by just observing that the practice of _comparisons_ had originated among the gentlemen who opposed the resolutions. At this stage, the committee rose, and had leave to sit again. THURSDAY, January 16. _Commerce of the United States._ The House again resolved itself into a Committee of the whole House on the Report of the Secretary of State on the privileges and restrictions on the commerce of the United States in foreign countries, when Mr. NICHOLAS rose and spoke as follows: Mr. Chairman: I feel a great embarrassment in speaking on this subject, from a distrust of my ability to treat properly its acknowledged importance, and from the apparent expectation of the audience. I feel too, as the member from Maryland who spoke yesterday did, from the imputation of motives, well knowing that the Representatives of my country are industriously reported to be enemies of the Government, and promoters of anarchy, and that the present measure is imputed to these principles. It is somewhat remarkable, that farther north we are charged with selfishness, and want of attachment to the general welfare, for a supposed opposition to measures of the import of the present. I mention this contradictory inference, to show that the shameful designs charged upon us, are not proved by the fact, and to place the guilt where it only exists, in the malignity of the accuser. It is a commonly received opinion, that trade should be intrusted to the direction of those immediately interested in it, and that the actual course of it is the best which it could take; this principle is by no means a safe one, and, as applied to the trade of America, is extremely fallacious. It can never be just, where the beginning and growth of a commerce have not been free from all possible constraint, as to its direction; as that can never be called a business of election which has been created under foreign influence. The manner in which America was first peopled, and the nurture she received from Great Britain, afford the most striking contrast to the requisite before mentioned. The first inhabitants of America were educated in Great Britain, and brought with them all the wants of their own country, to be gratified chiefly by the productions of that country. Aided by British capital, in the settlement of the wilderness, and depending on the same means for the conveyance of its produce to a place of consumption, it was inevitable, that the demand for British commodities should keep pace with the improvement of the country. In the commencement of American population and its early stages, there does not appear to have been a chance of comparing the advantages of commercial connection with different countries, and it will be found that in its progress, it was still more restrained. In the last years of the dependence of America on Great Britain, the principal part of America was occupied by large trading companies, composed of people in Great Britain, and conducted by factors, who sunk large sums in the hands of the farmers, to attach them to their respective stores, by which means competition was precluded, and a dependence on the supplies of those stores completely established. Since the Revolution, the business has been conducted by persons in the habit of dependence on Great Britain, and who had no other capital than the manufactures of that country furnished on credit. The business is still almost wholly conducted by the same means. In no stage of its growth then, does there appear to have been a power in the consumer to have compared the productions of Great Britain with those of any other country, as to their quality or price, and therefore there is no propriety in calling the course of trade, the course of its choice. The subject before the committee naturally divides itself into navigation and manufactures, in speaking of which, I shall offer some other considerations, to show that the same effects are by no means to be expected from the greatest commercial wisdom in individuals, which are in the power of the general concert of the community; the one having in view profit on each separate transaction, the other, promoting an advantageous result to the whole commerce of the country. In considering the importance of navigation to all countries, but especially to such as have so extensive a production of bulky articles as America, I think I shall show that the last observation is accurately right, and that the interest of the whole community, not those only who are the carriers, but those also who furnish the object of carriage, positively demands a domestic marine, equal to its whole business; and that, even if it is to exist under rates higher than those of foreign navigation, it is to be preferred. In circumstances of tolerable equality, that can never however entirely be the case; for, in the carriage of the produce of one country, by the shipping of another, to any other place than the country to which the shipping belongs, there is considerably more labor employed than would have been by domestic shipping, as the return to their own country is to be included. On this ground, it may be confidently asserted, that where the materials of navigation are equally attainable, they will always be more advantageously employed by the country for whose use they are intended; and that if, under such circumstances, another country is employed as the carrier, it must be under the influence of some other cause than interest, as it respects that particular business. A dependence on the shipping of another country tends to establish a place of deposit in that country of those exports which are for the use of others, if it is at a convenient distance from them. The superintendence of property makes short voyages desirable for the owner, and the connection that soon takes place between the money capital of a country and its shipping interests, greatly strengthens the vortex. The attainment of wealth beyond the demands of navigation, leads to an interest in the cargo itself, and then the agency in selling to the consumer becomes important. It is apparent that, as the final sale depends on the wants of the purchaser, all intermediate expenses of care and agency must be taken from the price to which the maker would be entitled. Our own commerce has involved this loss, in a remarkable degree, and it has gone to an enormous extent, from a necessity of submitting to the perfidy of agents, arising from a dependence established by means of the so much boasted credit. That there is this tendency in the employment of foreign shipping, is not only proved by the commercial importance of Holland, which became thus, from her naval resources, the storehouse of Europe, without furnishing any thing from her own productions, but also from the varied experience of America. Before the Revolution, every thing for European consumption was carried to Great Britain, but, since America has possessed shipping of her own, and in the Northern States, there has been an accession of capital, the export to England is reduced one-half. It is true, indeed, that there is still nearly one-half of what she receives, that is re-exported, but it will be found that she still retains a proportioned share of those influences which formerly carried the whole. Great Britain, under all the discouragements of our laws, which, we are told by the mercantile members of the committee, amount to a prohibition where they have any rivals, did, until the European war, possess one-third of the foreign tonnage employed in America. This has been supported by the dependence into which the Southern States were placed by credit, and here, as in every other step of the connection, this engine extorts advantages from us, beyond the compensation which is always secured in the first advance. If there wanted other proof of the British interest in the American navigation being supported in direct opposition to our interests, it may be found in the comparative state of the tonnage employed, where it appears that, after the protecting duties once had their effect, the additional tonnage, to a considerable amount, has been entirely American, and that the British tonnage has remained very nearly stationary, and in proportion to their undue influence. In time of war, in addition to the inconveniences before stated, which are enhanced by throwing the trade from its accustomed channel, there are great and important losses brought on a country by this kind of dependence. If your carriers are parties to the war, you are subjected to the war freight and war insurance on your cargo, and you are cut off from all the markets to which they are hostile; and, indeed, from our experience in the present war, I may say you are cut off from the market of your carriers themselves, as it would have been impossible for British vessels to have escaped in our seas last summer. To what extent this loss goes may be seen from a calculation in the Secretary of State's report on the fisheries, making the proportion of war to that of peace in the one hundred years, as forty-two to one hundred; and on that calculation there can be no hesitation in determining that the interest of the farmers requires that this foreign dependence should end here. But the European war, by making a temporary exclusion of British shipping, has already brought on us the greatest mischief of such a regulation: and, by the encouragement it has afforded to our shipping, almost completed the remedy; so that we have reason to consider this as a fortunate period. But, it is not merely the advancement of our marine that is contemplated by the present resolutions; the security of that which we have is also dependent on them. The danger from the Algerines has been estimated in this House at five per cent. on the vessel and cargo, but the whole encouragement to our own shipping in our existing laws consists in the one-tenth additional duty on goods imported in foreign vessels. Whenever there shall be a European peace, which cannot be far distant, the whole difference between the two sums will be a direct encouragement on British ships, and will probably be equal to two freights. Do gentlemen rely on the precarious prospect of building frigates, and the more precarious service to be rendered by them when built, so much as to neglect any other regulations for the safety of our shipping when they are so much in their power? Having shown that the actual state of our commerce is by no means the most beneficial, as far as navigation is concerned, I will proceed to consider the benefits derived from the consumption of those European manufactures which form the principal part of the stores of America. And here it may safely be said, that national policy by no means justifies the almost exclusive preference given to those of Great Britain. It is not always true that the commodity which is bought for least money is the best bargain, for the means of payment form an important consideration in all traffic, and accommodations in it may more than counterbalance an inequality of price. If one man will receive an article in exchange which you can sell to no other, it will certainly be a saving to deal with him at a high advance on his property. If there are countries which would become great consumers of American produce, on the terms of reciprocal consumption, and we find a difficulty, as is often the case, in vending that produce, is it not of great national importance to excite those acts which are to become the foundation of the connection, even if, in the first instance, it is to be attended with inconvenience and loss? France may be made a connection of this sort. She is at this time almost, if not quite, on a footing with Great Britain in the consumption of American products, and every hand which shall receive employment from us will add to her wants. We are told that it is of no less importance to us to find a country which can supply us advantageously than one which will consume our productions; and that, as commerce is no longer carried on by barter, it is no less beneficial to sell in one country and buy in another, than if we could complete the exchange in the same country. This might be true, if your production was limited, and the demand for it certain; but, with a greatly improving agriculture, and some risk in our markets, the object is important. Great Britain being the factory of those things which would make her most dependent on the agricultural interest, and the national wealth being probably at the greatest height, there is no expectation that her consumption will increase. On the other hand, as labor is now to receive its direction in France to the manufacturing arts, so far as concerns America, you will take from the agricultural strength a large class of people, and by that means create a dependence on you, at least to the amount of their own consumption, and the wealth you will diffuse will give ability to thousands who are now too poor to bid for your commodities. Nor is it probable that you will purchase this important benefit on very disadvantageous terms; for it is agreed on all hands that many important arts are well understood there, and that labor, which forms the principal part of the cost of most articles, is considerably cheaper in France than in England. Another very important operation of a discrimination in favor of France will be that, by encouraging liberal industry, you may put an end to some practices which, in the existing state of consumption, greatly depreciate our commodities. I mean the public provision made in granaries, and the supply from them in times of scarcity, which destroys the competition that raises every thing to its just value. Different consequences have been foretold as likely to result from those measures, to which I shall give a short examination. We are told that the preference long since given by our laws has been equal to a prohibition of British vessels, and that, to the extent to which it has gone, the best effects have been produced. To secure this operation from a recent attack, and at the same time to extend it to some branches of trade, to which its principles would equally extend, is the object of the marine resolutions. We have no reason to apprehend bad consequences from an action which has hitherto had good consequences. As to the increased duties on manufactures, I think the prospect in no way threatening; for, if there should be found no country to supply our wants on better terms, the diminution of consumption will be only in proportion to the duty. This can be by no means alarming, considered as the worst consequence of the measure to men with whom the impost is the favorite mode of collecting the revenue, at a time when the public wants are equal to any possible produce. If there shall be found a competitor with Great Britain for our consumption, the great object will be attained, as it must be accompanied by a corresponding consumption of American productions. But we are told that there will be a conflict of commercial regulations between this country and Great Britain, and that the consequence will be, the loss of the market she affords us. The probable consequences of such a conflict will best determine whether it is to be expected, as it will commence, on her part as well as ours, with a view to consequences. The danger which she can alone apprehend is the loss of the market for her manufactures; and to obviate this, it would be absurd to widen the breach between us, as that would tend, in a direct proportion, to the establishment of unfriendly habits and manufactures, either here or in other countries, which would rival her own. If, however, the ultimate advantage would justify such measures, the immediate distress of her people would forbid it. The American trade must be the means of distributing bread to several hundred thousand persons, whose occupations would be wholly ended with the trade, and the Government is by no means in a situation to bear their discontent. Their navigation and manufactures draw many important ingredients from America which would be lost to them. The creditors of the people of America, to an immense amount, would be deprived of the remittances which depend on a friendly intercourse. On the whole, it would add to the disorders of the Government among those who, perhaps, have heretofore contributed to its support, without gratifying any thing but an arrogant resentment. But we are told that our own citizens would be equal sufferers, and are more to be injured by being stopped in a career of rapid improvement. It will be hard to anticipate any real misfortune to America in such a contest, unless the temporary loss of indulgencies, which are by no means necessary, can be so called. The consumption of Great Britain is, according to the most friendly calculation, not more than one-third of our purchases from her, and, therefore, the national wealth, independent of the gratification of our appetites, will receive an immense addition, and a vast fund will be procured to make lasting and valuable improvements, which would be degraded by comparison with the gewgaws of a day. It is to be remarked that the diminution of our exports would be divided among large classes of people, and in all cases forms a deduction from the annual income, rather than a total loss. This will result from the various objects of American industry and the division of the markets of its produce. This forms an important difference between America and Great Britain, in an estimate of the effects of a rupture between the two countries. In my opinion, the habits of the Southern States are such as to require the control which is said to be the consequence of these measures. Under the facility offered by the modes of trade before spoken of, and the credit which is said to be so beneficial, they have not only involved themselves in debt, but have contracted habits which, with the power of gratification, must always keep them so. We did hope that the administration of justice would have corrected the evil, but we now find that it cannot be corrected but by entire changes. It is founded in the policy of the merchant himself, and this circumstance is enough to present to the minds of the committee a long train of dependent mischiefs. It is a fact, supported by the best evidence, that our merchants who get their goods from the manufacturer pay as much for them as the shopkeeper who buys at Baltimore or Philadelphia. This is one of the consequences of the want of credit which always will follow a reliance on collection from farmers; and there can be no doubt that the merchant is indemnified for his disgrace as well as his advance. The result of the whole train of indulgence is, that our goods are bought at an advance from a half to one-fourth of what they could be afforded for in cash sales. Nor does the mischief stop here. It brings a subjection which materially affects the sale of our produce. I do believe, myself, that the war with Great Britain did not bring half the mischief on us that their credit has; and I very much suspect a credit for consumption will always be found equally mischievous. It by no means resembles money loans, as is insinuated by the gentleman from South Carolina, by freeing a man's own resources for any other use. It is certain that there is no other safe regulation of a farmer's expenses than his income; and experience every day proves that, when so regulated, they always fall short of the income, and that, when they depend on credit, they always exceed it, and thereby subject future revenue. Lessening the importation of foreign manufactures will increase our household fabrics, which experience has proved to be highly profitable, as the labor is done by a part of the community of little power in any other application. Regular efforts in this way have been, in my country, certainly productive of independence. Mr. GOODHUE.--Mr. Chairman: The propositions now before us having been considered by several gentlemen, who have already spoken, and who have given such a particular detail of calculations, I shall confine myself to some general observations on the subject. The gentleman from Maryland has made an observation which struck me very forcibly as applied to the subject before us, because it is a maxim to which all mankind have assented, and upon which all mankind continually practise--it was this: "there is no friendship in trade;" and it maybe added, as a necessary consequence, there ought to be no hatred in trade. By following a path founded upon so obvious a maxim as the foregoing, we may be sure of a right guide, but if we deviate from it, we are in danger of being led into unforeseen error and mischief. It is unquestionably our duty to attend to the navigation and commerce of our country, and give it every proper encouragement which time and circumstances admit; this has ever been my wish and my conduct. This object, so important and desirable, must be effected by fixed principles and regulations, such as giving our vessels a decided preference in our own ports above the ships of every other nation whatever, by paying less tonnage and other duties; by suffering no foreign ships to bring into the United States the productions of any other country than the one to which they belong; and by prohibiting foreign ships from coming to the United States from those places where our own ships are prohibited. These are the fixed principles and regulations by one or all of which our navigation and commerce can only be promoted, and must never be deviated from, when adopted in favor of any one nation whatever--unless it be in return for some special advantage granted to us by any particular nation as an equivalent. Hitherto, our Government has proceeded to distinguish foreign ships, only by making them pay greater tonnage and duties than our own. If circumstances required it, and the time is judged a seasonable one, I shall be willing to proceed further. Let us examine what advantages we enjoy in consequence of any commercial treaties we have already formed, for the propositions before us are proposed to affect only those nations with whom we have no treaties. We have commercial treaties with Prussia, Sweden, France, and Holland, and in the dominions of neither of those powers have our ships or the produce of this country (except in the single article of our oil in France) been admitted on any more favorable terms than the ships or produce of any other nation; and for this obvious reason, because our treaties only ensure the advantages they may grant to the most favored nation; and, being circumstanced in such a manner as not judging it for their interest to distinguish any one by its favors, we are left only in the enjoyment of a trade with them on the terms common to all other nations. This being the case, I would not give one farthing to have like treaties formed with every other nation, for they have not been, and never can be, of any service to us; if we expect to derive any advantage from commercial treaties, we must stipulate for some certain good, for some other good which we may grant them in return. Mr. CLARK differed from many members who had spoken before him, in the view they took of the subject; he conceived it ought to be considered in a political light. We had many wrongs to complain of, and we should endeavor to obtain redress. The English have violated our treaty, just after it was ratified, by taking away our negroes, and since by holding our posts; they have also set the savages on our backs, and have not they let loose the Algerines upon us? Shall we sit still and bear it? How can we help it? it is asked. They will retaliate, we are told. How retaliate? Will they refuse to sell us their manufactures? He remembered that, even in old times, a non-importation agreement made them repeal their stamp act. We have surely as well now as we had then a right not to buy their goods; we don't want to cram our provisions down their throats, or to force them to buy our lumber. During the non-importation agreement, we did not perish with cold; we found, even then, that among ourselves we could make wherewith to clothe ourselves; we are surely as able to do it now. We then gained our point; we should now be much more powerful with the same weapon: many of her manufacturers are already starving for want of employment. We should add greatly to their distress, and soon bring the Government to their senses, and they will be glad to enter into a commercial treaty with us. The balance of trade with Great Britain is much against us; and by carrying to Portugal and Spain what we send to them, we should receive cash in return. France will not always be in a storm, and a supply of the manufactured articles we want may soon be received from that quarter. He did not see to what purpose calculations three hours long had been brought forward. It was very well for merchants to calculate in their counting houses; but he conceived the Legislature should determine the question upon political considerations. He concluded by remarking, that he believed by this time the committee must pretty clearly see that he was in favor of the resolutions. Mr. PARKER considered the resolutions on the table as indefinite and unintelligible. If revenue is the object, we should remember the remark of _Dr. Swift_, that in the arithmetic of taxation, two and two do not always make four, but sometimes only _one_. He thought there was a jarring in the third resolution, which contradicted the first. The leading clause of the first resolution, which has occasioned so long a debate, is in these words: "That the interest of the United States would be promoted by further restrictions and higher duties, in certain cases, on the manufactures and navigation of foreign nations employed in the commerce of the United States, than those now imposed." The third resolution which Mr. P. referred to, is in these words: "That the duty on vessels belonging to the nations having commercial treaties with the United States, ought to be reduced to ---- per ton." The resolutions meant either too much, or nothing. He would move to amend the first resolution, but that he hoped it would be altogether cast aside. Mr. S. SMITH (of Maryland) rose and apologized to the committee for presuming to intrude upon them a second time by the delivery of his sentiments. He said that a personal attack had been made yesterday upon him in that House. It had met him out of doors, and had gone into the world. After he had done speaking yesterday, a member had risen, and held forth as a fundamental observation, that "gentlemen possessing capitals of their own were in favor of the propositions; but that dealers upon credit were against them." When this remark was made, as he had but just sat down from delivering his negative to the resolutions, he could not help thinking himself aimed at as one of those dealers upon credit. [Here the member referred to rose, and solemnly declared that a personal allusion to Mr. SMITH had never entered his mind.] Mr. S. went on to observe, that the whole assertion was erroneous. The merchants of America are men of liberal sentiments--more so, he believed, than merchants of any other part of the world. They are not to be biased by the petty motives of interest, in prejudice to the public interest of their country. The gentleman whom he referred to had spoke of an alarming British influence in some of the commercial cities of America. He had alleged that merchants, by their connection with Britain, would be under its influence; but there was no such thing. In this country, merchants studied the constitution, and were attached to it. In other countries, they minded only profit. As a reflection had been thrown on merchants who dealt upon credit, he should take leave to observe that credit was a very good thing. As to himself, he had before the war began, acquired, by his industry, as much property as placed him beyond the necessity of credit. By the war he was reduced to nothing. After the peace, he again began as he set out at first. By the same industry and the same talents, he had once more acquired independence. By the British buccaneers, he had lost as much, since the present war began, as the gentleman to whom he rose in reply, would think a tolerable fortune for dividing among his sons; yet he could still spare time from his business for the service of his country. The question was then taken to postpone the subject to the first Monday in March next; and it was resolved in the affirmative--yeas 51, nays 47, as follows: YEAS.--Theodorus Bailey, Abraham Baldwin, Thomas Blount, Thomas P. Carnes, Gabriel Christie, Abraham Clark, Isaac Coles, Henry Dearborn, George Dent, William Findlay, William B. Giles, James Gillespie, Nicholas Gilman, Christopher Greenup, Andrew Gregg, William B. Grove, George Hancock, Carter B. Harrison, John Heath, Daniel Heister, John Hunter, William Irvine, Matthew Locke, William Lyman, Nathaniel Macon, James Madison, Alexander Mebane, William Montgomery, Andrew Moore, Peter Muhlenberg, Joseph Neville, Anthony New, John Nicholas, Nathaniel Niles, Alexander D. Orr, Josiah Parker, John Patton, Andrew Pickens, Francis Preston, Robert Rutherford, Thomas Scott, John S. Sherburne, John Smilie, Israel Smith, Thomas Spring, Thomas Tredwell, Philip Van Cortlandt, Abraham Venable, Francis Walker, Benjamin Williams, and Joseph Winston. NAYS.--Fisher Ames, James Armstrong, John Beatty, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Lambert Cadwalader, Thomas Claiborne, David Cobb, Peleg Coffin, Joshua Coit, Jonathan Dayton, Samuel Dexter, Thomas Fitzsimons, Uriah Forrest, Dwight Foster, Ezekiel Gilbert, Henry Glenn, Benjamin Goodhue, James Gordon, Samuel Griffin, Thomas Hartley, James Hillhouse, William Hindman, Samuel Holten, John Wilkes Kittera, Amasa Learned, Richard Bland Lee, Francis Malbone, Joseph McDowell, William Vans Murray, Jeremiah Smith, Samuel Smith, William Smith, Zephaniah Swift, Silas Talbot, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Peleg Wadsworth, Jeremiah Wadsworth, Artemas Ward, John Watts, Paine Wingate, and Richard Winn. Monday, January 20. _Algerine Affairs._ The Committee of Ways and Means, appointed, pursuant to the resolutions of the House, on the communications from the PRESIDENT OF THE UNITED STATES relative to Algiers, brought in a report, which was twice read, and referred to the Committee of the whole House on the state of the Union. _Ordered_, That it be printed for the use of the members. The report states that the naval force for the protection of the trade of the United States, shall consist of four ships of forty-four guns each, 18 and 9 pounders, and two of twenty guns each. The aggregate sum wanted for this purpose is estimated at six hundred thousand dollars; to raise which, one per cent. additional duty is proposed to be laid on imported goods now paying seven and one-half per cent.; five per cent. additional on stone, marble, &c.; and on all stone and earthenware, three cents additional; on salt, per bushel, six cents additional, per ton, on all vessels of the United States employed in foreign trade; and twenty-five cents additional, per ton, on all other vessels. On motion of Mr. FITZSIMONS, an addition was made to the Committee of Ways and Means; so that it now consists of a member from every State, who are to make another report respecting the fortifying the ports and harbors of the United States. _Ordered_, That Mr. GILMAN, Mr. WATTS, Mr. ORR, Mr. PATTON, Mr. BALDWIN, and Mr. ISRAEL SMITH, be added to the committee appointed to report to this House the naval force adequate to the protection of the commerce of the United States against the Algerine corsairs, together with an estimate of the expense, and the ways and means of defraying the same. TUESDAY, January 28. _French Refugees._ A petition of Peter Gauvain and Louis Dubourg, in behalf of the French refugees of Cape François, now at Baltimore, was presented to the House and read, praying that Congress will speedily decide on the memorial of the committee appointed by the Legislature of Maryland, to draw for, and distribute, the moneys granted by that State for the relief of the French emigrants from the Island of St. Domingo. Mr. MURRAY moved that it should be referred to the Committee of the Whole on the state of the Union, along with the report of the select committee upon it. He thought it would be an act of humanity to relieve the persons mentioned in the petition. And if that was improper, he thought that the next greatest act of humanity which could be done, was to relieve them from suspense. Mr. CLARK was of opinion that the matter should be instantly taken up, as the fund for their relief expired on the 2d of February next. Mr. HUNTER, from South Carolina, mentioned a remarkable exertion of benevolence respecting persons of this kind which had taken place in that State. The motion was agreed to, and the House directly resolved itself into a committee on the question. It was then moved and seconded, that the PRESIDENT be authorized to pay $10,000 of the public money for the use of the refugees, and to negotiate the payment of it, with the Ministry of France. Mr. BOUDINOT was convinced, that, by the constitution, the House had a right to give it in the first instance. He considered the committee as too confined, and thought that it should have comprehended all the people of this sort in North America. Many of these people since winter set in, must have perished of cold and want in the streets of Philadelphia, but for the benevolence of some well-disposed people. He urged the committee, in the most pathetic language, to extend immediate and effectual relief. Mr. S. SMITH was confident that Congress would be repaid with thanks by the Republic of France. He said that a supply of powder and ball had been sent from one of the Southern States to St. Domingo, and that the price had been punctually and thankfully repaid. Santhonax and Polverel had been recalled, who were the authors of all the mischief that had happened. The refugees expected to return to their settlements before the first of May, and they would then be very able and very willing to repay the money themselves. Mr. SMILIE recommended the entering into a negotiation with the French Ambassador, for securing payment of what sum should be voted. Mr. CLARK hoped that the motion would instantly pass. In a case of this kind, we were not to be tied up by the constitution. Were Algerines cast upon the mercy of America, in such a situation, he would pay them the same tribute of humanity. The French Ambassador had restricted his services to a particular class of people. It was not the business of the House, whether the refugees at Baltimore were democrats or aristocrats. They were men; and, as such were entitled to compassion and to relief. Mr. S. SMITH, in reply to Mr. SMILIE, said, that Mr. Genet, when solicited on behalf of these people, made answer that he was not authorized on the part of the Republic to give them any thing, but sent them $2,000 from himself. Mr. SMILIE replied that Mr. SMITH had mistaken him; he did not wish to seek money from Mr. Genet. But he thought it would be singular to give away so large a sum, without endeavoring to secure the approbation of the French Minister, as a step towards repayment. Mr. DEXTER had formerly entertained scruples, but he now approved the motion. Mr. NICHOLAS did not approve the motion in its original shape, nor did he like it better for its being now altered into a motion for authorizing the PRESIDENT to pay the money. Mr. N. expressed, in the strongest and most unequivocal language, his compassion for the sufferers; but, as he had not seen a way pointed out of relieving them, agreeably to the constitution, he recommended a shorter one. Out of the liberal compensation which the members of that House received from the country, he thought that the sum wanted might easily be subscribed. He did not know whether the Republic would thank us for helping them; perhaps they might be accounted rebels. Mr. FITZSIMONS proposed a second amendment of the original motion. Mr. NICHOLAS replied: If this thing goes down at all, it should be as an act of charity, and marked in giving, that it is going beyond our power, but that, from a knowledge of the universal wish of our constituents, and a sense of our general obligations to France, we have granted the money. Mr. SCOTT pressed for the relief in reference to the citizens of Baltimore. If they were invaded by an army, we certainly would assist them; and where is the difference, (added Mr. S.,) whether they be an army of fighters, or an army of eaters. We must relieve them, to be sure. Mr. S. SMITH said that these distressed people were all women and children, except three old men. The boys who were old enough, had been bound apprentices. The men had been enlisted by the advice of Mr. Genet, who said the Republic wanted recruits. He had likewise obtained two ships for five hundred of the refugees who wanted to go to France. Genet was able to do nothing more for them, as the $2,000 that he gave, were out of his own pocket. It had been alleged that there was no precedent for relieving these people. He mentioned two: The Americans in captivity at Algiers had been assisted by the British Consul. Some years ago, the crew of an American vessel had been shipwrecked on the coast of Portugal. They were assisted with the utmost generosity by a private gentleman. In both cases, Congress thankfully repaid the money advanced. The gentleman from Virginia (Mr. NICHOLAS) had offered his salary, but the idea had not been supported, so that it went for nothing. And are we (said Mr. S.) to stand up here, and tell the world that we dare not perform an act of benevolence? Is this to be the style of an American Congress? The gentleman from Virginia had said that perhaps these people would be considered as traitors by the Republic. Were women and fatherless children to be regarded as traitors? Mr. S. was extremely affected, and apologized more than once to the House for the warmth with which he spoke. He said that himself and several others who had witnessed the scene of distress, were surprised; the gentleman did not feel as they did. Mr. MADISON possessed constitutional scruples. He thought that the gentleman from Maryland (Mr. S. SMITH) would not have injured his cause by a greater moderation of language, nor his credit for benevolence by not saying that his sympathy arose chiefly from being an eye-witness. At last, the SPEAKER proposed to the committee an amendment, which met the ideas of the members, and the resolution passed, as follows: _Resolved_, That a sum not exceeding ---- dollars be appropriated for the support of such of the inhabitants of St. Domingo, resident within the United States, as shall be found in want of such support. That a regular account of the moneys so expended be kept; and that the PRESIDENT OF THE UNITED STATES be requested to obtain a credit therefor, in the accounts between the French Republic and the United States. _Ordered_, That a committee be appointed to bring in a bill in conformity with the foregoing resolution, and providing for the due application of the moneys aforesaid; and that Mr. AMES, Mr. TRACY, and Mr. DENT, be the said committee. THURSDAY, February 6. _War with Algiers._ The resolution being read for building four ships of 44 guns and two ships of 20 guns-- Mr. MADISON rose to inquire whether there was in the public stores of the United States, a sufficient quantity of cedar and live oak for building the proposed six vessels? He was answered that there was not. Mr. M. then observed, that it was evident this fleet could not be ready for effective service in the course of the present year. He imagined that there was another resolution, precedent as to the time of voting it, which ought to be before the committee. The resolution to which he alluded, was that assigning a sum of money to buy a cessation of hostilities from the Regency of Algiers. He was of opinion that the project of fitting out an armed squadron was liable to many solid objections. There were two points of light in which this subject might be surveyed. The first of these was, whether the Algerines acted from their own impulse in this matter? In that case, they were known to be in the habit of selling a peace; and, if they are willing to do so, he fancied that it might be purchased for less money than the armament would cost. On the other hand, if they do not act from their own impulse, but upon the instigation of Britain, we may depend upon it that they cannot be bought. Britain will keep them hostile. There is infinitely more danger of a British war from the fitting out of ships than from the resolution on the report of the Secretary of State. The distance which the ships would have to sail is not less than three thousand miles, and their number is too small for a decisive advantage. The combined powers would embrace the equipment of these ships as an excellent opportunity to pick a quarrel with the United States. Mr. M. expressed his doubts with regard to the propriety of this measure, because the expense would be immense, and there was no certainty of reaping any benefit from it. Mr. CLARK was anxious to state his doubts on this subject, that gentlemen, who, by their habits of life, had met with opportunities of better information than he possessed, might correct him where he was wrong. In the first place, the ships would be too small in point of number to be of any kind of importance, amidst the numerous navies of Europe. The distance from any friendly port, where, in case of accidents, they might repair, was likewise very great. It was to be expected that, when they fell in with British ships of war, that the latter would endeavor to search them for prohibited cargoes, and for seamen, because they were in the practice of impressing their own countrymen wherever they could find them. This would produce a quarrel. There was a scheme which occurred to him, and which he judged would be less expensive and more effectual. This was, to hire the Portuguese to cruise against the Algerines. He understood that the Court of Lisbon desired to keep her ships of war in actual service. The British have been in the habit of building frigates for the service of the Algerines, and, as he was informed, mariners, at a distance upon sea could distinguish in what country vessels were built by their construction. Hence it would be difficult for the captain of an American frigate to ascertain at sea a British ship of war from an Algerine. He had an objection to the establishment of a fleet, because, when once it had been commenced, there would be no end of it. We must then have a Secretary of the Navy, and a swarm of other people in office, at a monstrous expense. If we build six ships this year, we should next year find it necessary to build six more, and so on. The combined powers would find a much better pretence for a war by this armament than from the resolutions on the Report of the Secretary. Mr. C. closed his speech, which was heard with great attention, by observing that he rose principally to submit his opinions on this question as hints for those who were better qualified to form a judgment on the subject than himself. Mr. BALDWIN expressed his doubts as to every part of this subject. He had not been able to gain any information that was satisfactory. To block up the Mediterranean was, he believed, impracticable. Bribery alone could purchase security from the Algerines. Spain and Britain had always found this method the cheapest. He had much confidence in the gentleman who had been employed to go as an Envoy to Algiers from this country. He was a thorough man. Mr. B. had yet formed no decided opinion, and could wish to suspend his judgment till he learned the issue of the present application to the Dey. If bribery would not do, he should certainly vote for equipping a fleet. Mr. NICHOLAS feared that we were not a match for the Algerines. A small number of sailors were sufficient to navigate one of their ships, and they had a militia to man them who were innumerable. He had not been able to form an exact opinion, but he was afraid that we were not a match for them by sea. Mr. S. SMITH rose chiefly to answer the interrogatories proposed by Mr. CLARK, as to what harbors in Europe American ships could retire to for shelter? In an early part of his life, Mr. S. said that he had been in that part of the world, and could assure the House that there was no want of proper harbors to refit or obtain provisions in. The first he mentioned was Toulon; Marseilles, likewise, had a most excellent harbor, and there was no doubt that our vessels would be received there in the most friendly way, as the Algerines had lately declared war against the Republic of France. Spain had, likewise, several excellent ports--Malaga, Cadiz, Barcelona, and Ferrol. In all these the American squadron would be heartily welcome, and meet with all kinds of naval stores in the greatest abundance. Lisbon, also, was a fine harbor, and Oporto would be proper for the same purpose. So that, in case of accident, the armament had nothing to fear from wanting a place of retreat. He had no doubt that our vessels and our sailors would both be much superior to those of the Algerines. Their ships were old and crazy, and were presents made them by the powers with whom they are not at war. The American bottoms must be better; and our fleet will most likely have its station between Oran and Malaga, and, stretching across between those two ports, block up the mouth of the Straits. He adverted to the mistake of Mr. BALDWIN, who had said that Spain never attempted to block up the Straits; the proper answer to which was, that Spain had an extensive coast, not less than four or five hundred miles, within the Mediterranean; so that she was quite differently situated, with regard to them, from America. Mr. S. mentioned, as a consolatory circumstance, that our profit was twice as great at present, in commerce, as it was before the war, in spite of all the spoliations committed by Britain, and by Spain; and, if the war continues, the profits will continue to multiply twice as fast as they would otherwise do. As an evidence of this fact, he mentioned the high price of wheat at present in this market, and asked whether any gentleman had heard of a price so high at this season of the year before? A gentleman (Mr. NICHOLAS) had spoken of an Algerine militia. Why, sir, (said Mr. S.,) I shall set down against them the American militia, and so that account is settled. He estimated that the whole American exports and imports, in round numbers, was twenty millions of dollars each; and that the extra insurance on account of the Algerines, from one end of the year to the other, would not be less than five per cent. to the whole, which was altogether two millions of dollars. From this Mr. S. inferred that it must be the very worst kind of economy to hazard an expense of two millions of dollars of insurance, for the sake of saving the charges of this armament. He did not see it improbable that the Algerines might very soon be on our coast, under the command of British or American renegadoes. It was nothing uncommon, among seamen, for two captains to be in the greatest friendship to-day, and plundering each other's vessels to-morrow. As an example of what Americans, in particular, are capable of doing, he repeated the history of a Mr. Cooper, of Virginia, who, some years ago, fitted out a ship for the express purpose of cruising against American vessels bound from or to the East Indies. He sent a person into the harbor of Algiers to solicit a commission from the Dey, and this envoy had very near been taken prisoner, as the Dey wanted to have made a slave of him. Mr. S. said that Mr. Cooper was known to be a man of courage, of perseverance, and as possessing that species of intellectual resources which qualify an adventurer for bold undertakings. He inferred, from this anecdote, that, if Mr. Cooper, a man of respectable birth and connections, could form such a scheme, what was not to be feared from the common set of seamen? He could not tell where the danger might end; nor did he know whether Philadelphia itself would be in safety. They might speak of their forts as much as they pleased; he knew their force, and did not much value it. The British had gone past them, and what was to hinder the Algerines, or such a man as Mr. Cooper, from getting past them? Were he on the coast of an enemy, he should not have the least scruple of engaging to run a ship by such forts, when there was in view so great a prospect as the plunder of Philadelphia. He strongly pressed the necessity of sending out the proposed fleet as quickly as possible. Mr. AMES attacked the mover of the resolutions on the Report of the Secretary (Mr. MADISON) for not displaying in the affair of the Algerines some part of the spirit which he had exerted on the other occasion. He thought it shameful to buy a peace, and that there could be no security, if we did. He recommended an armament. Portugal had shown herself friendly; and, referring to what Mr. CLARK had stated, he was of opinion she would give our ships shelter in her ports. He thought that six stout frigates at the mouth of the Straits would do the business. He went at considerable length into Mr. MADISON's resolutions, and condemned, upon various grounds, the arguments and conduct of the gentlemen who supported them. Yesterday, we were told that Britain durst not quarrel with America, and to-day she is represented as ready to do it. Our commerce is on the point of being annihilated, and, unless an armament is fitted out, we may very soon expect the Algerines on the coast of America. Mr. GILES, in reply, said that Mr. AMES drew inconsistent pictures. One day he represented the American commerce at the summit of prosperity; the next, it was reduced to nothing. In defence of the commercial regulations, he reminded the House that Britain, and not Algiers, was the real object of alarm, and the real source of hostility. It was, therefore, proper to provide remedies against both of these illustrious confederates. Algiers was but the instrument, Britain was the cause. The reliance of Britain upon this instrument plainly showed that she was not equal to a war and a commercial contest. She had, therefore, turned loose the Algerines upon us--a fact which is pretty generally acknowledged on both sides of the House. It is, therefore, in the power of Britain to prevent the progress of these pirates. The commercial restrictions will reduce Britain to difficulty, and she will then, for the sake of friendship with America, be glad to put a stop to the Algerine ravages. Until some measure of this kind has been adopted, Britain, as she has raised up Algiers, will keep her up. The cheapest mode of getting peace will certainly be by embracing the commercial regulations. Mr. G. was averse to the proposal of a fleet. He agreed very much with the gentleman from New Jersey, (Mr. CLARK,) that it would be a better expedient to hire the fleet of Portugal. He considered the establishment of a maritime force as having a direct tendency to war; whereas, the commercial restrictions had the same tendency to peace. The sending of American armed ships into the midst of the fleets of Europe would certainly produce a quarrel. It had been well remarked, (by Mr. CLARK,) that, if an attempt was made to search our ships of war, like our merchantmen, it would infallibly produce a public affront, and consequent hostilities. Mr. MADISON, in reply to some remarks which had fallen from Mr. SMITH, respecting the present high price of wheat in the American market, said, that he had been informed of a place where wheat sold for four shillings and sixpence per bushel only, where the dollar passes for six shillings. Mr. M. supposed that Britain could render very essential service to the Algerines, without embarking in a war. She has not embarked in a war to the north-west of the Ohio, but she has done the same thing, in substance, by supplying the Indians with arms, ammunition, and, perhaps, with subsistence. He did not assert that Britain directed the plan of the Indian expeditions, for he had no explicit evidence that they actually did so. In the same way that they gave underhand assistance to the Indians, they would give it to the Algerines, rather than hazard an open war. The committee now rose, without coming to the question. FRIDAY, February 7. JOHN PAGE, from Virginia, appeared, produced his credentials, and took his seat in the House. _Algerine War._ THE NAVAL FORCE. The House resolved itself into a Committee of the whole House on the state of the Union. The Chairman read the resolution before the House for equipping a Naval force. Mr. MADISON thought this expedient unlikely to answer the purpose, and liable to many objections. Before the American squadron can be equipped, the truce between Algiers and Portugal must expire. When that expiration shall take place, she either will not renew the truce at all, or she will stipulate that the United States shall be comprehended in it. He would save the money intended for the fleet, and hire the Portuguese ships of war with it, as soon as the truce ends. He wished that the committee might reject the present motion, and when they did so, he would move a resolution, a copy of which he read to the committee. It was in substance: "That the sum of ---- dollars be provided to be employed in such a manner as should be found most effectual for obtaining a peace with the Regency of Algiers; and failing of this, that the sum should be applied to the end of obtaining protection from some of the European Powers." Mr. M. considered the armament at present proposed, as quite too small to answer any efficient purpose. A member here observed, that it would be hazardous to rely on Portugal; because, though the truce might expire in about six months, it would possibly be renewed at the end of that time, or converted into a peace. Mr. FITZSIMONS wished that gentlemen would pay some attention to attested facts, before they so abruptly declare that the six ships proposed by the committee to be built and put into commission, were incompetent to the end for which they were designed. The committee had bestowed considerable time in deliberating upon the best information which could be obtained, before they specified the force requisite to be employed, and they had been satisfied, that what was now proposed would be equal to the end. Here Mr. F. read a different statement of the ships of war in the service of the Regency of Algiers, at different times. One of these shows that in the year 1789, there were nine xebecs, from thirty-six to ten guns, and one ship of forty guns upon the stocks; but that several of the xebecs were laid up or unfit for service. A second estimate of the Algerine maritime force, had been transmitted by Mr. Humphries. He specified four frigates, two xebecs, and one brig. By advices still more recent, the fleet consisted of one vessel of forty-four guns, one of thirty-six, one of twenty-eight, three xebecs, and a brig. Mr. F. observed, that gentlemen had objected to the sending out an American fleet; that they could not always keep together. He reminded them, that from November to March or April, the corsairs of Barbary never go out to sea. There were two months during that time, when they were restrained by their religion from piratical excursions. The committee had been told, that the Portuguese are ready to assist us. There is ground to expect this assistance, but not to depend upon it. Two American frigates, along with the Portuguese vessels, would be fully equal to the task of curbing the Algerines. As to militia, he could not see of what consequence they could be in a naval contest. With regard to expense, he stated a very important fact. The United States import, annually, two millions of bushels of salt from these countries, which the Algerines will cut off from our commerce. The rise on that article must then be at least one dollar per bushel; which is a tax of two millions of dollars at once, or three times the expense of the armament. Probably, however, the loss may extend to four millions of dollars on this single article of salt, in one year only; a sum which would keep up the fleet a long time. We have been trying to buy a peace, but without success; and if we are not able to enforce it, the price of buying it must be so much the higher. As soon as Portugal is left to herself, she will certainly protect us, because it is much for her interest to do so. At present, she cannot, perhaps, from the influence of the combined powers. Mr. F., therefore, recommended an armament in the mean time. Mr. SMILIE objected to this measure, because it was unequal to the task. Britain would assist the Algerines underhandedly, as she did an enemy in another quarter, and would continue to do so. He did not think she was shameless enough to own it, but she would do it.[49] Mr. NICHOLAS went on the same ground. He said that Britain had not been content with striking up a truce for Portugal, that the Algerines might be let loose on American commerce, but her Minister at the Court of Lisbon had endeavored to prevent our vessels from obtaining a Portuguese convoy. Not content with insuring a loss to America, she had striven to make that loss immediate. As to the duration of the truce, it could not last long, for the Queen of Portugal had, in fact, broken it already. She had declared that the trade to that country should pass unmolested; to which condition it was not likely that the Algerines would consent. The Portuguese nobility had clamored at the acceptance of a truce. So that, on the whole, it could hardly last long. A naval force was a very expensive affair. The greater part of the immense debt of England had been lavished on her navy. He was against building a navy. Mr. SWIFT had been always sensible that the situation of this country was not fit for war. We have a very heavy debt; but still it is better to bear debts than depredations. A gentleman of extensive information (Mr. S. SMITH, in yesterday's debate) had stated the rise of insurance as much less than the armament would cost. Britain had always more dependence on her navy, than on the immense sums that she pays to these barbarians. Mr. S. had no doubt that the proposed fleet would have its intended effect. He despaired of either buying a truce or buying an ally. As to the militia of Algiers, they could not be brought into action against frigates. He considered the charge of hiring the Algerines, as an unfounded accusation on the honor of Britain. He could not bring himself to believe that she was capable of a conduct so exceedingly disgraceful. He had no direct evidence to convince. It might be objected to this armament, that it would augment the national debt, and throw too much influence into the hands of the Executive Government. But the same objection might be started against every armament whatever. Mr. MURRAY said, the gentleman from Virginia, (Mr. MADISON,) yesterday, observed that he was not a little surprised that those who a few days since had appeared so alarmed at the phantom of war, should on this question appear so willing to meet it. He would remark that those gentlemen were alarmed at a shadow which appeared followed by the substance of war, and were unwilling to do any thing that might lead to a war that did not yet exist. But we were now at war with Algiers, and had no choice. They had been at war with the United States ever since the end of the Revolutionary war. The Spaniards and Portuguese kept them within the Mediterranean. Gentlemen who are averse to the report, hold up two substitute measures: one, which was suggested, and has been argued by the gentleman from Virginia, (Mr. MADISON,) is, that we ought to grant a sum to Portugal for her protection of our trade. The other is, that commercial regulations will accomplish our protection. He liked neither. The last, if permanent, will withdraw all temptation from Great Britain to interpose her good offices. The first is worse; it is subsidizing Portugal at the expense of our own people, and that too without security. Gentlemen would make it the interest of Portugal to make such breaches of truce as would occasionally withdraw protection, and oblige us to subsidize her higher. It would create a disgraceful dependence on a foreign power, and weaken the spirit of our marine; whereas, if you fit out frigates, you employ your money in nourishing the roots of your own industry; you encourage your own ship-building, lumber, and victualling business. He believed, that however true might be the suspicion of British interference in Indian affairs, and he feared it was too true, he did not believe the evidence as to Algerine interference strong enough to induce an argument against the report, under a supposition that as Great Britain had effected the truce, so she would aid Algiers against us. He thought so, because it was not now as much her interest as it was in times of peace. In times of peace, had she let loose the Algerines, her own navigation would have been enabled to carry for us, but now it would be molested by the French. He did not believe nations, more than persons, would do wrong purely out of evil designs, devoid of interest; the greatest villain would not. At present, their ships are liable to attack from the French, and he had it from good authority, that so far were the British from having advantaged themselves if they had been so base, that scarcely a British ship had appeared since in our ports. The ship frigates would be able to blockade the Gut of Gibraltar; the Algerines did not sail in fleets; they wanted plunder, not glory; when they discovered they had to get the first by hard fighting, they would listen to peace, accompanied by money. Spain, it was true, had purchased a peace, but there was an hereditary inveteracy against Spain, and a facility of attacking her shores which we need not fear; so it was her interest to buy a peace when war could bring her nothing but a glory that almost disgraced her armies; as to jealousy of power in the Executive, he hoped to see a proper equipoise in the powers of this Government; but, when proper occasions occurred, he hoped Congress would never refuse the adequate means to enable the Executive to discharge its constitutional duties. Mr. GOODHUE observed, that the committee had carefully looked over the statement of the marine force of Algiers for several years back, and had no reason to doubt that the six vessels would be equal to the purpose intended. There was no ground to suppose Algiers would have more force at present than she had during her war with Portugal. He had no doubt that the Algerines were let loose on the American commerce to prevent supplies going to France, and while the war lasts, we shall not be able to buy a peace. It is said, that the truce was but for a year, and in six months it will expire. He did not wish to depend on that, when the evil is so great. And why depend on Portugal? She is more under the influence of Britain than any other nation in Europe. When Britain has been at the trouble of stipulating a peace for Portugal, will she suffer that nation to assist us? Certainly not. Or is it wise to stand by and depend upon such a resource? Mr. MADISON said, that gentlemen thought so differently on this subject, and advanced arguments against his side of the question of such a different nature, that it was difficult or impossible to give them an answer. He then proceeded to quote the speech of Mr. GOODHUE; when that gentleman rose to explain. Mr. M. then proceeded to notice the speeches of Mr. FITZSIMONS and Mr. S. SMITH. Both of these gentlemen were up more than once to explain, as having been misquoted. In a speech of considerable length, he was not suffered long to proceed without interruptions of explanations. This produced a scene of altercation. One circumstance, however, was mentioned by Mr. FITZSIMONS that deserves particular notice. From April to December next, he said, the insurance on American ships from England and the rest of Europe, will not be less than twenty-five per cent. of their value on account of the Algerines. The House now adjourned, without taking any question. TUESDAY, March 4. _Estimate of Appropriations._ The House again resolved itself into a Committee of the whole House on the Report of the Secretary of the Treasury of the sums necessary to be appropriated for the service of the year one thousand seven hundred and ninety-four; and after some time spent therein, the Chairman reported that the committee had again had the said report under consideration, and come to a resolution thereupon; which he delivered in at the Clerk's table, where the same was twice read, and agreed to by the House, as follows: _Resolved_, That, for the support of the Military Establishment of the United States, for the year one thousand seven hundred and ninety-four, there be appropriated a sum of money, not exceeding one million four hundred and fifty-seven thousand nine hundred and thirty-six dollars and one cent; that is to say: For the pay of the Legion of the United States, $303,684 00 For subsistence, 312,567 75 For forage, 31,632 00 For clothing, 112,000 00 For equipments for the cavalry, 7,314 05 For horses for the cavalry, 16,000 00 For bounty, 5,000 00 For the Hospital Department, 20,000 00 For the Ordnance Department, 6,715 32 For repairs and articles directed to be made and purchased by the PRESIDENT OF THE UNITED STATES, 202,783 34 For defensive protection of the frontiers, 130,000 00 For the Indian Department, 50,000 00 For the Quartermaster's Department, 150,000 00 For contingencies of the War Department, 30,000 00 And for Invalid Pensions, 80,239 55 ------------ $1,457,936 01 _Ordered_, That a bill or bills be brought in, pursuant to the said resolution; and that Mr. BOUDINOT, Mr. TRUMBULL, and Mr. GILLESPIE, do prepare and bring in the same. THURSDAY, March 6. _Slave Trade._ The House went into Committee of the Whole on the bill to prohibit the carrying on the slave trade from the ports of the United States, Mr. BOUDINOT in the chair. The two first sections of the bill were agreed to, with one alteration moved by Mr. TRUMBULL, which was to give the District Court as well as the Circuit Courts cognizance of the offence. The third section which relates to the penalty &c., it was moved should be struck out. This motion was negatived. It was then moved to insert the word _foreign_ before "ship or vessel;" which was agreed to. The committee proceeded through the bill, which was reported to the House with sundry amendments; these were agreed to by the House, and the bill ordered to be engrossed for a third reading. MONDAY, March 10. _Algerine War._ NAVAL ARMAMENT. Mr. GILES observed, that, from the sense of the House several times manifested on this subject, there remained no doubt but that the bill would pass. In that event, he most earnestly hoped that the success of the measure would, at least, equal the expectations of its advocates. Indeed, he hoped that their expectations would be disappointed and exceeded; for it did not seem to him that even they were very positive as to its full competency to the end proposed. He even wished that every ship could be furnished with the cap of Fortunatus and the shield of Hercules; for he was persuaded that, in the present state of things, some magical influence would be found essential to enable them to effect their undertaking. He observed, that, at present, the wisdom or folly of the proposed measure was mere matter of opinion; that the passage of the bill will furnish futurity with a complete experiment of its true character. He intended to offer his reasons against the passage of the bill, not with a hope of making proselytes, but as a testimony of the real motives which influenced his opposition. With this view, he should only mention some of the general impressions produced on his mind by this subject, without fatiguing the House with minute exemplifications of them. The subject had presented itself to him in two points of view--1st, as affording a protection to our commerce against the Algerine depredations; 2d, as the foundation of a permanent naval establishment. He could not help premising that, in the course of discussion, the advocates of the bill had censured its opponents with a want of disposition for the protection of commerce, whilst they claimed a monopoly of all good intention towards this object. He did not mean to derogate from the good intention of the favorers of the bill, but he believed its opponents possessed as pure a zeal for the protection and due encouragement of commerce as its advocates. It is not a question whether commerce is, or is not, to be protected; but whether the plan proposed be the most effectual and the least exceptionable that can be devised for that purpose? The difference of opinion does not consist in the end to be produced, but in the means proposed to effect the end. The first objection he should make to the bill would be, the obvious inadequacy of the means contemplated to effect the end proposed by them. The object proposed is an effectual resistance, not only to the whole present naval force of Algiers, but to their whole naval ability. The bill contains, in itself, essentially a declaration of war. Our calculations, therefore, should be extended to the utmost limit of the naval ability of the hostile nation. The means to be employed consist of four frigates of forty-four guns each, and two ships of thirty-six guns each. To decide with propriety upon the objection, this force should be compared with the naval ability of Algiers. He did not mean to go into a minute history of Algiers. He should only observe, in general, that it was a populous country; that it had furnished at one time one hundred thousand fighting men; that its power at this day was as great as at any preceding period; that they were a warlike people, accustomed to naval enterprises and desperate in naval engagements; that, for some time past, they had been subsidized for peace by almost every European nation. He could not help concluding, from these circumstances, that the naval ability of the nation either was or might, without any uncommon exertions, he rendered superior to four forty-four gun frigates and two thirty-six gun ships, the force contemplated by the bill; and, if the conclusions were just, the bill is unwise. Mr. G. proceeded to consider the bill as the foundation of a permanent naval establishment. He said there was a clause in the bill authorizing the PRESIDENT to suspend all proceedings in the equipment of the armament, in case of a peace with Algiers, which gave him some consolation; but it did not altogether relieve his apprehensions from this operation of the measure, because he knew that a permanent naval establishment was a favorite policy with some gentlemen, and because the argument had been urged in favor of the present bill. He observed that a permanent naval establishment could be recommended to the United States but from one or both of the following considerations: either upon the principle of entering into a competition for naval power with the Powers of Europe; or as affording security to the collection of our own revenue. He thought the question of a permanent naval establishment was one of the most important which could be presented to the consideration of the House, and that the most serious consequences were necessarily connected with it. In the first place, he viewed the establishment of a navy as a complete dereliction of the policy of discharging the principal of the public debt. History does not afford an instance of a nation which continued to increase their navy and decrease their debt at the same time. It is an operation exceeding the ability of any nation. The naval competition of the Powers in Europe has produced oppression to their subjects and ruin to themselves. The ruin of the French Monarchy, he believed, might be ascribed very much to that cause. A navy is the most expensive of all means of defence, and the tyranny of governments consists in the expensiveness of their machinery. The expensiveness of the French Monarchy is the true cause of its destruction. The navy of France furnished the principal item of that expense. The navy produced expense, the expense exceeded the revenue, new contributions became necessary, the people saw the tyranny, and destroyed the tyrant. The same effect, by the same policy, will probably be produced in great Great Britain. The Government is not yet destroyed, but the people are oppressed, liberty is banished. The extensiveness of the Government is the true ground of the oppression of the people. The King, the Nobility, the Priesthood, the Army, and, above all, the Navy. All this machinery lessens the number of the productive and increases the number of unproductive hands of the nation in Great Britain. The operation has been extended so far that the poor rates alone probably afforded a greater tax per _capita_ than the whole taxes paid in the United States. He was astonished with these fatal examples before our eyes, that there should be any gentlemen who would wish to enter into this fashionable system of politics. He said the United States had already progressed full far enough into this system; for, exclusively of the ordinary expense of the Civil List, a debt had been funded upon principles of duration. An army had been raised, at an immense expense, and now there was a proposition for a navy. He observed that, for several years past, the appropriations for the support of the Military Establishment had exceeded a million of dollars per annum--from one million to one million and a half annually. He believed that, if the expense had been foreseen, there would have been more active efforts to have avoided it. It was a policy, at this day, very generally condemned; yet we are now to exhibit a counterpart of this policy upon the ocean, with this aggravation--that it will commence with greater certain expense, and with a more uncertain object. The system of governing by debts he conceived the most refined system of tyranny. It seems to have been a contrivance devised by politicians to succeed the old system of feudal tenures. Both systems were tyrannical, but the objects of their tyranny were different. The system of feuds operated upon the person of the individual--the system of debts operates upon the pockets of the individual. In the feudal system, the tenant often received some indulgence and lenity from the martial generosity which generally characterized the lord. The lord was gratified with the acknowledgment of the tenant that he was a slave, and the rendition of a peppercorn as an evidence of it. The product of the tenant's labor was left for his own support. The system of debts affords no such indulgences. Its true policy is to devise objects of expense, and to draw the greatest possible sum from the people in the least visible mode. It boasts not of economizing in calls upon the people for contributions. It boasts not of economizing in the objects of expenditure. It consults the obedience, and not the happiness of the people. There is no device which facilitates the system of expense and debts so much as a navy. And he declared, from that consideration, he should value his liberty at a lower price than he now did, if the policy of a permanent Naval Establishment should obtain in the United States. Mr. W. SMITH remarked, that though it was not probable any proselytes were to be expected at this late period of the business, and after so ample a discussion as the question had received in its different stages, yet he considered it necessary to make a reply to some of the various objections which had just been made to the passing of the bill. Many of those objections appeared to him totally inapplicable to the subject, which he should pass over in silence. If it were the design of the House to incur a vast expense in the establishment of a navy, merely for the idle purposes of vain parade, there would be force in some of the objections; but, as this was not the case, and as the measure was a measure not of choice, but of necessity, extorted by the pressure of unavoidable events, he did not feel their force in any respect. The question was, simply, whether our commerce required protection against the Algerine corsairs, and whether this was the best mode of protection. The first part of the question was admitted on all sides. For himself, he had always considered the second equally clear. But in the course of the discussion, various difficulties had been started against the mode of protection, and various substitutes had been proposed, as offering a remedy more prompt, more effectual, and less expensive. He would first consider the proposed substitutes for a naval armament, and then answer the objections to it. The substitutes were: 1st. To purchase a peace of the Algerines. 2d. To depend on Portugal breaking her truce with Algiers, and shutting up their cruisers within the Straits. 3d. To pass commercial regulations against Great Britain. 4th. To subsidize other nations to protect our commerce. To these several substitutes, he might, in a few words, object that the first was impracticable, the second precarious, the third inoperative, and the fourth dishonorable. Mr. S. next reviewed the principal objections to the bill. These were, he said, 1st. That the force contemplated was incompetent. 2d. That sending an armed force on the ocean would be the means of involving us in a war with some of the maritime powers. 3d. That we had no friendly ports in Europe, which our frigates could resort to for supplies or refitment. 4th. That the expense would exceed the object to be protected. 5th. That our trade would be deprived of the seamen required to man the frigates. 6th. That it was now so late in the season we could not protect our vessels the ensuing summer, and that some favorable events might occur before the frigates could be equipped, which would render them unnecessary. 7th. That this was the beginning of a Naval Establishment, which would hereafter involve this country in immense debts and maritime wars. [To the arguments against a Naval Establishment, Mr. SMITH answered:] The dangers resulting from a large Navy Establishment, and the immense debts they have created in other countries, had been depicted, and the House had been warned against such evils. How a bill providing six frigates, which were to exist only during the war with Algiers, could excite an apprehension of a large and permanent navy, and an enormous debt, Mr. S. said he was at a loss to discover. The clause which authorized the PRESIDENT, in the event of a peace with the Regency of Algiers, to discontinue the armament, was a complete answer to all the reasoning which had been indulged on the subject of navies and debts. Admitting there had been no such clause, he did not feel the weight or applicability of the reasoning. This country is peculiarly fitted for a navy: abounding in all kinds of naval resources, we have within ourselves those means which other maritime nations were obliged to obtain from abroad. The nature of our situation, and the navigating disposition of a considerable proportion of our citizens, evince still more the propriety of some Naval Establishment. Perhaps the country is not yet mature for such an establishment, to any great extent; but he believed the period was not far distant, when it would be. Sweden, with a population not greater than that of the United States, and with more slender resources, maintained a large navy. He saw no reason why the United States, with an increasing population, much individual wealth, and considerable national resources, might not, without ruin, do as much, or why the equipment of a squadron, inferior to that of any of the petty nations of Italy, should involve us in an insupportable expense. The question was then taken on the passage of the bill, and it was resolved in the affirmative--yeas 50, nays 39, as follows: YEAS.--Messrs. Fisher Ames, John Beatty, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Lambert Cadwalader, David Cobb, Peleg Coffin, Joshua Coit, Henry Dearborn, George Dent, Samuel Dexter, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, James Gordon, Samuel Griffin, George Hancock, James Hillhouse, William Hindman, Samuel Holten, John Wilkes Kittera, Amasa Learned, Richard Bland Lee, William Lyman, Francis Malbone, Peter Muhlenberg, William Vans Murray, Josiah Parker, Thomas Scott, Theodore Sedgwick, Jeremiah Smith, Samuel Smith, William Smith, Thomas Sprigg, Zephaniah Swift, Silas Talbot, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Peleg Wadsworth, Jeremiah Wadsworth, Artemas Ward, John Watts, and Richard Winn. NAYS.--Messrs. Theodorus Bailey, Abraham Baldwin, Thomas Blount, Thomas P. Carnes, Gabriel Christie, Thomas Claiborne, Isaac Coles, William Findlay, William B. Giles, James Gillespie, Christopher Greenup, William Barry Grove, Carter B. Harrison, John Heath, Daniel Heister, John Hunter, William Irvine, Matthew Locke, Nathaniel Macon, James Madison, Joseph McDowell, Alexander Mebane, William Montgomery, Andrew Moore, Joseph Neville, Anthony New, John Nichols, Nathaniel Niles, John Page, Francis Preston, John Smilie, Israel Smith, Thomas Tredwell, Philip Van Cortlandt, Abraham Venable, Francis Walker, Benjamin Williams, Paine Wingate, and Joseph Winston. THURSDAY, March 27. _Sequestration of British Debts._ Mr. DAYTON submitted the following resolutions: "_Resolved_, That provision ought to be made, by law, for the sequestration of all the debts due from the citizens of the United States to the subjects of the King of Great Britain. "_Resolved_, That provision ought, in like manner, to be made for securing the payment of all such debts into the Treasury of the United States, there to be held as a pledge for the indemnification of such of the citizens of the said States as shall have suffered from the ships of war, privateers, or from any person, or description of persons, acting under the commission of authority of the British King, in contravention of the law of nations, and in violation of the rights of neutrality." _Ordered_, That the said resolutions be committed to a Committee of the whole House immediately. The House accordingly resolved itself into said committee. Mr. DAYTON then rose in support of his propositions. When he brought them forward he did not accompany them (he said) with many observations, because he was then laboring under indisposition. The same cause would render him very concise now. The injuries and insults we have suffered from Great Britain, he conceived, need not be dwelt upon. They are well known, and it is universally acknowledged that we ought to adopt such measures as would screen us from a repetition of them, and secure to us reparation. The resolutions he had brought forward he intended as part of that system of defence and preservation, other portions of which had already received the sanction of the House. These resolutions, he conceived, would not be the least efficient part of that system. He believed that, when the conduct of Great Britain is reviewed, it would be found that it is treating their subjects with great lenity to speak of sequestration only; we should be warranted in confiscating, for they have subjected our property to condemnation, without an appearance of an intention to indemnify. As to restitution of the property of which we have been plundered on the high seas, it is impossible. It is condemned, sold, and scattered, and no hope can be entertained that they intend to indemnify our suffering citizens. If it had been their intention to indemnify, their Court, in explanation of the instruction of the 6th of November, would not have given orders to condemn vessels detained in suspense in the West Indies until that elucidation was received. Since, then, restitution is impossible, and not a shadow of hope exists that indemnification will be granted; we have only to determine whether we shall give up the property of which we have been plundered, or claim it with effect--claim it, and enforce the claim, by showing that we have the means of retaliation within our power. After the proceedings of the British towards us, he believed, we should have been warranted in confiscating the property now proposed to be sequestered, without negotiation. This would have been meting to them as they meted to us. If sequestration is hostility, as he had heard it called, what, he asked, is condemnation? Besides, they have impressed American citizens into their service. We have reason to believe, (he concluded by remarking,) from the negotiation of our Minister with Lord Grenville, from private information on the tables of Congress, and from the conduct of some of their officers high in command, that to make war on us is part of their system. Mr. S. SMITH said he always had wished for peace, as the first desideratum. With this view, agreeably to the wise recommendation of the PRESIDENT, he agreed to those measures calculated to put the country in a posture of defence. This was the best mode of securing peace. With the same view, he proposed an embargo to be laid, which would have drawn to our ports the remainder of our maritime possessions, and have left them no longer within the grasp of a nation whose only rule of right is the measure of her power. He still wished, as long as a shadow of hope exists, to secure the blessings of peace. With the resolutions now offered, he was of opinion that we might yet have peace; but, without them, we shall certainly have war. They will arrest twenty millions of dollars in our hands, as a fund to reimburse the three or four millions which we have been stripped of by that piratical nation, Great Britain, according to the instructions of that king of sea robbers--that leviathan, which aims at swallowing all that floats on the ocean--that monster, whose only law is power, and who neither respects the rights of nations nor the property of individuals! This character the nation he had mentioned had long deserved. Many proofs might be cited in support of the assertion. He would only refer to their conduct at St. Eustatia, when they robbed their allies, the Dutch, and their generals and admirals turned vendue-masters, and conducted the plundering, to collect rewards for their exploits. Is it from such a nation (he asked) that we are to hope for justice? They know not what justice is. It is said that they showed their love of justice when they so liberally compensated the Tories after their war with us. Though they despise traitors, yet self-interest will lead them to reward the treachery, to encourage a principle which may again be useful to them. Self-interest, then, and not justice, actuated them on that as on every other occasion. Let us pass the resolutions, then send an envoy to Great Britain, and we shall have peace. We shall then be able to speak to them of their interest. But if war should be the inevitable issue, Americans, he was sure, would meet it like men, rather than submit to insult and suffer the honor of the country to be prostrated. If we were able, while in infancy as a nation, to assert our rights, will it be said, that, now we have arrived at a state of manhood, we shall fear them? No! our young men burn for an opportunity to defend the liberty, rights, and property of their country. They will step out as one, and meet the event like men. He read a quotation from _Vattel_, to show that a nation has a right to pay her citizens for losses inflicted by another nation, contrary to right, by confiscating the property belonging to the citizens of that nation. The tie of interest, he concluded by remarking, is the strongest tie we have upon Great Britain. Let us pass the resolutions, and that nation will never again give us cause to pass similar ones. The people out of doors will say that we have done right. The nations of Europe will rejoice to see this power, which is committing depredations on all nations, humbled. The resolutions, he observed, do not regard the property in the funds. To touch this is not one of the means of retaliation warranted by the law of nations. Public contracts should be sacred. Mr. BOUDINOT said, he had not intended to take part in the debate at this early stage of it; but what had fallen from the member last up, convinced him that the House should not go into a consideration of the subject at this time. It should be considered with coolness, and all passions put out of the question. No doubt we have a right to make reprisals, as the Legislature has a right to declare war; but he doubted whether the United States, in their present situation, would find it their interest to go into such measures. The authority read from _Vattel_ by the member last up, he observed, made against that member's opinion. _Vattel_ expressly says that reprisals should not be made on property intrusted to public faith. The debts of British subjects here are in that predicament. He had heard that gentleman, not long since, with pleasure, expatiate with warmth on the advantages of credit, especially to this country. Should that credit be destroyed (he asked) by destroying the confidence of foreigners in our faith? But, even if this retaliation is lawful, will it be the interest of the citizens, or rather of the Government, to take such a step at the present time? We have no doubt been cruelly treated; but we have made proper application for redress, and received an answer? We should first send a special envoy and insist on an immediate answer. This would be the mode of securing peace; at least, it offers the best chance of securing it. The aggressions on our commerce made by Great Britain are no doubt enough to rouse any American's feelings; but the Legislature ought not to be swayed by passions; they should discuss the subject calmly and deliberately. He hoped the committee would rise and allow time, at least, to take the necessary measures of defence; for, could the Legislature justify to their constituents this step of retaliation, should immediate hostilities, warlike hostilities, be the consequence? To justify a measure of this kind time should be given for the defensive system adopted to be carried into operation. Mr. MERCER next spoke. He owned the measures proposed appeared to him great and momentous, and, had he any powers of declamation, he should think it improper to give loose to them on a question of this kind. We should weigh well our interest, examine carefully the situation in which we stand, and determine calmly where we shall place our next step. The proposition is, to arrest, not to confiscate, the debts due to British subjects. From his recollection of the positions established by the best jurisprudence writers, no doubt remained in his mind that we have a clear right to secure to ourselves reparation in that way, and, in our predicament, confiscation even would be warranted, and by a point as firmly established as any principle which has the general practice of nations for a basis. One of the latest writers on national law (_Binkershoek_) is of opinion that debts are property, as well as any thing else, and sees no reason why they should not, as well as other kinds of property, be seized to secure indemnity for injuries. This is the opinion of _Wolfius_, of _Vattel_, _Grotius_, and of his commentators. He could go on with a long list of authorities, and refer to actual treaties to show that it has been the practice of nations. Having established the right, he proceeded to consider the expediency of the propositions. Gentlemen, he hoped, did not wish that we should make a solemn declaration of war before we acted. This is no longer the custom among nations. It would be a pompous display of candor which no longer exists. Have any nations in the present European war, premised their operations by a declaration? No; their first step was to do all the injury in their power to their enemies. Then, we having taken what steps will best tend to our security, and give us the best hold of our enemy, let us not, however, lose sight of a settlement by negotiation. Let us show mankind that peace is our first wish. When we are thus prepared, let us step forward to an amicable negotiation. Let us call on the Executive to send forward some proper person to the Court of Great Britain, to assure them that we have a high sense of the injury done us; that we have it in our power to resent it, but wish to see the difference settled by receiving an indemnification. We shall thus make it their interest as well as duty to allow it. This he conceived to be the line of conduct we should adopt if we wished to preserve the Western Hemisphere from the scourges that desolate the Old World. By some such measure as that proposed, we should make their motives for peace more weighty, and we should give assurances of our amicable disposition, by showing that all we wish is a just compensation. In a matter of this kind he was sensible of the danger of precipitation. The best mode of arresting the property proposed should be calmly weighed. He believed that something like the proposition made by Mr. SMITH, of South Carolina, before the House resolved itself into a committee--a stop to all transfers of British property--would be proper as a preliminary step. He concluded with some observations on the respect which nations, however weak, will command from their superiors in strength, by showing that they will not suffer imposition, by joining heart and hand in defence of their rights. This spirit, he was sure, animates Americans, and now their power is better able to keep pace with that spirit than when we humbled that nation. At that time we were in our infancy--an infancy by no means thriving under the trammels of the mother country--and, when they turned us adrift, and began their hostile spoliations, they carried with them all our means of defence; but now, thank Providence, we have spirit and power to defend ourselves. If the gentleman from South Carolina (Mr. SMITH) would modify his proposition, and make the term thirty days, it should have his assent in preference to that now before the committee. Mr. SMITH (of South Carolina) said, that the proposition he had read before the House went into committee was in the nature of an embargo on debts, securing them from transfer until the necessity of sequestering them more plainly appeared. The proposition did not then appear to meet the wishes of the House. When the committee should rise he would again bring it forward. The question now before the committee is, whether they will agree to a sequestration of British debts. He wished this object had not been coupled with the indemnification to our own citizens, because it is fairer to decide each question upon its own merits. That part of the resolutions which contemplates an indemnification may give a weight to the first part which it might not intrinsically deserve. He made some observations on the propriety of cool deliberation on the present important subject. The passions should be banished, and calm reason more than ever courted. It requires all the wisdom of the Legislative body now to combine our national honor with our national safety. He had doubts on the propriety of the resolutions proposed, but acknowledged that the arguments used in their favor had great weight in his mind. If the situation of this country be compared with that of other commercial nations, the propriety of something like the present resolutions would appear more evident. When other commercial nations wish to quarrel with us, their navies enable them to seize our vessels, and we cannot retaliate in the same way. Then we must fly to such means of retaliation as are in our power. If they take our property of one description, and we cannot lay our hands upon the same kind, we must take any of theirs within our reach. This reasoning has, no doubt, great force; but the sacredness with which the modern usages of nations has shielded debts is a great bar to our proceeding in the present case. Contracts between individuals are now considered as out of the reach of governments, and it is the modern usage not to meddle with them. In the beginning of our late war, debts were not confiscated. The State of South Carolina, though certainly not wanting provocation, while confiscating all other property, left debts untouched, under the idea that private contracts are sacred. But this, in a case of war, and urgent necessity, might be overlooked; but if we are not in a state of war, perhaps meddling with private contracts might provoke it. Credit is certainly important to this country. We should consider how far the operation of the resolutions proposed would give a shock to it. Besides, they might have a tendency to involve us in future wars. We shall yet long be under the necessity of receiving certain supplies from Europe, and shall have debtors among us for those supplies. These debtors may at any time, when the burden weighs heavy, think of easing it by fomenting dissensions with the foreign creditor nation, in expectation that a confiscation of the debts may be an effect. It is true that, in such a case, they will not be exonerated. But it cannot be supposed that the government to whom the debts would be transferred could prosecute the recovery of them with as much ardor as an individual. The gentleman last up had relied on the authority of ancient and foreign jurists. Some among this class of writers warrant putting prisoners to death--a principle which modern custom has put a stop to. They also, it is true, warrant the confiscation of debts; but _Burlamaqui_ says this is not the practice of modern nations. None, or very few trifling examples can be cited, he believed, of a departure from this principle, in modern times, among nations where commerce is cherished. This country depends on commerce, and credit is one of the means by which it flourishes; we should, then, not endeavor to weaken it. If we are once over the barrier, by trifling extensions of the principle we may be carried to immoderate lengths, indeed. Some persons who are in favor of sequestering private debts, speak with horror of touching the public funds. For his part, he did not see much difference between confiscating private and public debts. The object is the injury of an enemy, and to retaliate for injuries. Again: if we go to war with Great Britain, it is probable we shall be involved with her allies, then will it be said, that we shall confiscate what the Dutch lent us at a time of distress or since the peace. The Dutch have bought largely in our funds. The same principle will lead us to lay our hands upon that property. It will be difficult to draw a line, if we admit the principle. Under these impressions, if called upon to give his vote, he should now feel much embarrassment. It had been said that the adoption of the present resolutions would be a means of obliging Great Britain to do us justice; that it would strike a terror among the subjects of that country, and make them clamorous for peace. It might, he feared, have a very different effect exasperate them, and unite the people with the Government against us. Some further forbearance on our part may separate them. It will convince the people of Great Britain that we really wish for peace, and then, if war is the issue, the impression will be severely felt by that Government. We shall render the Administration very unpopular, and hasten its dismission for one more friendly to this country. He was of opinion this crisis was fast approaching. He concluded by again adverting to his propositions for preventing the transfer of British debts, which he hoped would be considered as a sufficient provision in the present exigency, and would give time to deliberate on further measures, and to watch the course of events in Europe, which, he believed, would have great influence upon the conduct of Great Britain towards us, and probably bring forward the change in the Administration of Great Britain. The committee now rose and reported progress. FRIDAY, March 28. _Sequestration of British Debts._ The House resolved itself into a Committee of the Whole on the state of the Union, and took up Mr. DAYTON's resolutions for the sequestration of debts due to British subjects. Mr. GILES commenced his remarks by observing, that he had intended to have given a silent vote upon this question before the committee, and probably should not have altered that intention, if it had not been from the solicitous requests expressed yesterday by several gentlemen in the opposition, that the favorers of the proposed measure should furnish the committee with the reasons upon which it was founded. Although it appeared to him to be rather unreasonable that some gentlemen should be expected, not only to possess reasons for their own opinions, but to furnish reasons for others; and, although he did not conceive that the favorers of the measure were under any obligation to disclose the reasons inducing it, provided they thought proper to hazard its fate upon a silent vote, yet he was willing to indulge the gentlemen with presenting to them the general course of reflection which the subject had produced in his mind, and which had strongly suggested its propriety. He had, however, a more powerful inducement to disclosing his opinion, since the subject has become matter of discussion and its propriety doubted. The measure is deemed a bold one, and pregnant with the most serious consequences; in all such cases, he was desirous that his responsibility to the United States in general, and to his immediate constituents in particular, would at all times be tested by the real motives which should influence his conduct. Several gentlemen in the opposition had earnestly admonished the committee against the indulgence of their passions upon this subject, and recommended the exercise of cool and deliberate reasoning. He should not pretend to say how far such an admonition was necessary, or justified by the temper of the committee, but he believed it applied as strongly to the gentlemen who suggested the caution, as to those to whom it was addressed; and he hoped, in the course of the future discussion, the gentlemen would show an example in themselves of the precepts they had prescribed to others. As to himself, Mr. G. declared that, impressed with the awfulness of the present crisis, he had never reflected upon a subject with more coolness; and, if he understood his own situation, his mind was never in a state more susceptible of conviction. The proposed measure is expected to eventuate in a final explanation of the relative state of things between the United States and Great Britain. It will probably result, therefore, in an open hostility, with the usual appeal to arms, or in a peace, with all the rights of neutrality attached to it. For this purpose, the resolution proposes a sequestration of the debts due to the subjects of Great Britain, to be held as a pledge for the indemnification of the losses sustained by American citizens under the orders of the British King, in contravention of the laws of nations, and violation of every rule of morality and justice. In the course of debate, this subject seems to have resolved itself into two questions. First, as it respects the right of one nation to sequester the property of the individuals of another in any possible case. Second, the policy of exercising this right at this time, under the existing circumstances of the United States. He presumed that a state of things might exist between two nations in which reprisal would not only become the right but the duty to the nation sustaining the wrong. This happens where one nation, without cause, forcibly seizes upon the effects of another, or of its citizens, and withholds them without restitution or compensation, and when the nation, whose effects shall be so seized and detained, shall possess no other means of indemnification. The right of reprisal in the injured nation, in such a case, grows out of its injury sustained, and its inability to redress itself in any other way. The duty of the injured nation to make reprisals, is founded on self-preservation; and in case of the losses of its citizens, upon the promise of the protection of property sacredly made by the nation to its individual members. This he believed to be the doctrine of the laws of morality and reason, and he knew it to be the doctrine of the laws of nations, which were, in fact, nothing more than the laws of morality and reason systematized and reduced to writing. Believing this principle to be a just one, he would apply it to the existing state of things between the United States and Great Britain. Almost as soon as Great Britain had taken part in the iniquitous war against France, the Executive of the United States manifested their regard for peace, by proclaiming their existing state of neutrality, and recommending to their citizens, not only the observance of neutrality, but of impartial neutrality--although the partiality of the American people for the cause of France was well known--although, at that moment, their affections for the French nation were addressed by the most honorable and powerful considerations that ever existed between two nations. The peculiar similarity between the existing French cause and that which had just given birth to American liberty and independence; the material agency which the French nation had exerted in bringing about that event; and the existing principles of Government here, the product of the Revolution, which are the great object of attack by the combination against France. A pure and laudable regard for peace, and a detestation of war, however, had overcome all these sensations, and produced a neutrality, which he believed, on the part of the United States, had been rigidly observed; at least, he was sure, that such was the intention of Government. In this state of things, Great Britain commenced an attack upon this state of neutrality, which it was certainly her interest to preserve, and which she ought to have deemed a favor to obtain. Great Britain continued to keep possession of posts upon the acknowledged territory of the United States, to carry on a contraband trade with our savage enemy. She, shortly after our proclaimed neutrality, proceeded to interrupt our lawful trade with our allies. She seized, condemned, and sanctioned the complete transfer of the property of American citizens to her own subjects; and, as if there could be no limits to her iniquity and resentment, she has contrived to open upon our Eastern frontiers a barbarous enemy to aid in making depredations upon our commerce. These acts constitute injuries which amount to war, and they are infinitely aggravated, both by the perfidy which attended the execution of some of them, and the total want of provocation for the commission of any of them. If, then, Great Britain shall have committed acts towards the United States which furnish just cause of war, the United States possess the right, consistently with the laws of nations, to exercise any act towards Great Britain which would be justifiable in a state of war. The United States having received the injuries, are authorized to select such measures and means as they may deem the most expedient for self-preservation and indemnification. Reprisal is within their power. All other means of redress are without their power. In such a state of things, reprisal is a right--reprisal is a duty. An objection, more plausible than solid, has been made to this course of reasoning, that the individuals who will be the immediate objects of the reprisal, have not been the immediate agents of the aggression. The laws of nations state, that the property of individuals is as much a subject of reprisal as the property of the aggressing nation; but, as the nation is the immediate agent in the wrong, the individual who sustains an injury thereby, becomes entitled to recompense from his nation. The nation which commits the wrong, by this process, will ultimately sustain the loss. Hence, in the present case, the innocent and unsuspecting victims of the United States, have received losses from the lawless aggressions of Great Britain, and the question is, whether they shall finally sustain those losses, without any clear claim of indemnification upon the Government of the United States? or, whether the losses shall be transferred to British subjects, who will thereby possess the clearest claim for recompense from the British Government? He thought the laws of God, the laws of morality, the laws of reason, the laws of nations, would all pronounce that the British Government which had done the wrong, should afford the recompense. Mr. G. said, that if the losses were to be ultimately borne by the individual subjects of Great Britain, the remedy would seem to be a harsh one; but, even in that case, the only alternatives left to the United States would be to say whether their own citizens, to whom they have promised protection, should finally sustain the losses, or the British subjects, to whom they have promised no protection. But the situation of the individuals who may be the subjects of reprisal, is greatly meliorated, by the consideration of their just claim to recompense from their own Government, which he had no doubt but they would ultimately obtain, if they were put into a situation to demand it; but if they should ultimately be denied justice, it would be a consolation to reflect, that it was the injustice of their own Government, not of the United States. He observed, that a reprisal in the way proposed, stood upon the same ground as the invasion of the property in every other case did, and was justified upon the same principle, to wit, self-preservation. He presumed, if there existed an acknowledged state of war, letters of marque and reprisal, commissions to privateers, &c., would be deemed justifiable and expedient, and that no discrimination would be made between the property of individuals and the property of the nation; yet the invasion of the rights of property in that case would be as palpable as in the case of the reprisal proposed, with this aggravation; that, in that case, the individual sustaining the loss would not be entitled to ultimate recompense from the Government--in the case proposed, he would be entitled to recompense. He observed, that the British nation had not discovered this delicate discrimination between national and individual property, in their late instructions given to their privateers and ships of war, although they had sustained no wrong; and he thought their conduct an example in point for the United States, who had received the injury and committed none. A gentleman (Mr. SMITH, of South Carolina) yesterday attempted to make a distinction between vessels at sea and other property; although he acknowledged that, at the first blush, he could discern no distinction in principle. Mr. G. said, that every species of property stood on the same principle--the promise made by the Government to afford protection to all property--the same rights are attached to every species of property, and the Government is bound to afford an equal security to all. A sentence read yesterday, by a gentleman, (Mr. S. SMITH), from a writer upon the laws of nations, clearly shows the right of a nation to make reprisal upon all the effects of individuals of an aggressing nation indiscriminately, except stock in the public funds; which has been exempted, under the idea of its being a pledge in the hands of Government; the withholding of which would be a breach of public faith. He believed that the practice and policy of some nations might have given rise to this distinction, but he doubted whether the practice had been uniform and universal, and he was clear that there was no rational distinction in principle. The idea that the public funds are a pledge in the hands of Government, and ought not, therefore, to be touched, is equally applicable to every other species of property. In the case of contracts between individuals, the Government guarantees the performance upon the refusal of one party to pay, or comply. In the case of lands or personal chattels, the Government guarantees the exclusive enjoyment to the proprietor; it would be equally a violation of faith for the Government to deny its obligation in the one case as in the other, and nothing could justify an invasion of the rights of property, in any case, but self-preservation--the first of all rights, and the highest of all duties. He positively denied that any pre-eminence was due to one species of property over another. He said, however, that this discussion was not immediately necessary, as the resolution under consideration did not embrace the stock in the funds of the United States. Mr. G. observed, that it had been said, and repeated in the committee, that the proposed measure was war. He denied that the measure in itself was war, or that it furnished a just cause of war. He believed, however, that it was problematical whether it would eventuate in peace or war; indeed, he remarked, that the crisis of affairs is already such, that, whether the measure be adopted or not, he viewed war as a probable event, peace as a possible event; but the point he contended for was, that if the aggressions towards the United States be sufficient to justify reprisal, the exercise of the right does not furnish a just cause of war. The exercise of a right by one nation can never involve the absurd consequence of giving another nation the right to exercise a wrong. He said, that gentlemen on one side of this question seemed to act upon an imaginary, instead of the real, state of things. He was not, therefore, astonished at hearing the committee cautioned against the violation of neutrality. He did not conceive that the present state of things between the United States and Great Britain would justify the use of the term neutrality. Neutrality is a term used to signify the relation in which two nations stand towards each other. Neutrality, therefore, requires parties--either party may destroy the relation between the parties. It therefore appeared absurd to him to say that Great Britain was in a state of depredation and war towards the United States, and the United States in a state of neutrality towards Great Britain. It has been said, that the United States have not abandoned their neutrality; this is true, but it is no evidence that neutrality exists. Great Britain has abandoned it for them. He said, however, that this was disregarding the substance and entering into a mere cavil about names. It was not material, in his opinion, what name ought to be given to the existing relation of things between the United States and Great Britain--whether it was called a state of peace, a state of war, a state of neutrality, a state of reprisal, a state of retortion, or a state of very uncivil conduct on the part of Great Britain. Nor did he conceive it material to ascertain whether there was any intermediate stage between a state of peace and a state of war, or in which state the depredations of Great Britain should technically be classed; but one thing was certain and material--that the United States had sustained substantial wrongs, which required a substantial remedy. Gentlemen who have regarded names and disregarded substances have also been extremely alarmed at the idea of a discrimination of conduct by the United States towards foreign nations. A gentleman (Mr. BOUDINOT) observed yesterday, that the United States had sustained injuries from France and Spain as well as Great Britain, and asked why there should be any discrimination in their favor? Mr. G. said he was extremely hurt that the conduct of France should be so unnecessarily and inopportunely arraigned in that House. He submitted it to the gentleman to say, if the United States should be compelled to enter into the war, which was at this moment not an improbable event, why then it would be wise to irritate the only nation in the world who could afford them any substantial assistance! He said that this conduct was the less justifiable, from the recollection that the conduct of France was the result of necessity, and there was every reason to conclude that the conduct of that nation would be explained in a satisfactory manner. But a consideration mentioned by a gentleman, (Mr. SMITH, of Maryland,) yesterday, was a conclusive answer--the United States owe to France a pecuniary obligation, as well as one of a more sacred nature. This is at all times sufficient for their indemnification. With respect to Spain, if the gentleman would show the injury sustained, and point out a fund for indemnification, Mr. G. declared he would not hesitate a moment to apply it to that object. But will the gentleman conclude, that because one nation has injured us, in a degree against which we have no redress, that therefore we shall not indemnify ourselves from a nation which has injured us in the extreme, and against which we have the most ample redress? He believed the gentleman's coolness, his wisdom, and his deliberation, could not possibly lead him to such a result. With respect to discrimination in the conduct of the United States towards foreign nations, it necessarily grew out of the character of the conduct of other nations towards the United States. Some gentlemen appeared to him to have carried their ideas upon this subject to the most fanciful absurdities. To keep France out of the comparison, let this indiscriminate conduct, so much applauded, be applied to Great Britain and Holland. Great Britain destroys our trade, plunders our property, and, to her injuries, adds insult and contempt. Holland, engaged in the same cause, fosters our trade, and respects us as a nation. Under these circumstances, do gentlemen contend that an indiscriminate conduct is due to Great Britain and to Holland? Or do they mean to carry this delicate indiscriminate conduct so far as to refuse to themselves all redress from one nation, because they would wish to deal out the same conduct to all others, whether they had offended or not? He said, that discrimination was stamped in the front of the conduct of foreign nations towards us, and to make an indiscriminate return would be the worst and most unjust of all discriminations. He hoped gentlemen would pardon him, but he could not help thinking that they had carried their ideas upon this subject to the most fanciful absurdities. A gentleman (Mr. SMITH, of South Carolina) yesterday remarked, that of late the condition of war had been much ameliorated as it regards the rights of property, and he thought the amelioration ought to be extended rather than abridged. Mr. G. declared, that he heartily joined him in his wishes that the condition of war would ere long be ameliorated, both as it regards property and persons. He hoped that mankind would soon learn more wisdom than to butcher each other for the amusement or security of the privileged orders of the world. From that source he believed all wars arose, and until the cause was banished from the earth, he feared the fatal effects resulting from it would continue to exist. He declared, that he should view the banishment of the privileged orders from the world as the surest harbinger of the approach of the millennium. But this is not the happy period of the world; for, although the United States are free from this pest of the human species in their internal organization, yet the evils they at this moment experience arise from their external intercourse with that part of the world which is less fortunate. The attack made on the United States at this moment, is an attack upon property. If there should be a war between the United States and Great Britain, it will be a war of property. Unless there should be a species of madness in the nation not to be calculated upon, they cannot think of invasion and subjugation. It is known that the United States cannot make an attack upon Great Britain, and territory and conquest with them are no objects. Hence the war will be confined to depredations upon property. This is the most dishonorable species of warfare, and therefore the more to be regretted. There is this obvious distinction, however, between the United States and Great Britain. With Great Britain, at least with the privileged orders, it is matter of choice; with the United States, it is matter of compulsion. The United States despise this mode of warfare; they covet not the property of any nation upon earth, but self-preservation demands it. They are under the strong hand of a powerful nation, despising their rights, and regardless of justice. In this state of things, there is but little hope of strengthening the sacred ties of property; for, in the example of Great Britain, her late conduct can furnish no consolation for these theoretic speculations; and however the United States might be inclined to practise upon them, yet the British depredations will forbid them--for submission will be an invitation to new acts of aggression. He most ardently wished the state of things were otherwise; but, exposed to these inconveniences, the most effectual means ought to be adopted for their resistance. Mr. G. proceeded to observe, that having shown the right of reprisal to be conformable to the laws of nations, and clearly justified by the existing relation of things between the United States and Great Britain, he would now submit a few remarks upon the policy of exercising the right at this time. Under the existing circumstances of the United States, he thought the policy of the measure was recommended by the clearest and most obvious principles. The relation of things between the United States and Great Britain is such as to demand a final and unequivocal explanation, whether the proposed measure be adopted or not. In all parts of this committee, in all parts of the United States, a definitive explanation is called for. The present state of things between the two nations cannot long exist. It is to be hoped that, the tone of language to be used by the United States will be adjusted to the nature of the injuries they have sustained. Acquiescence and submission are no longer recommended. Hence, matters are already reduced to extremities, and all the irritations already exist which can grow out of an extreme state of things. The proposed measure can add nothing to these irritations. The question, therefore, appears to be reduced to this--whether, in demanding an explanation and attempting negotiation, we shall use all the means in our power to compel a favorable issue? or whether we shall tamely supplicate for justice, and suffer the most effectual means of compulsion to elude our grasp? He did not mean here to recapitulate the conduct of Great Britain towards us; he hoped it was sufficiently impressed upon the mind of every gentleman in the committee; but, after the recent experience of her conduct, it would be madness, it would be folly, to address our complaints to her justice or moderation. He thought it would be wise to lay hold of every thing in our power, and hold it as a pledge for her good behavior. This measure would put us in the best possible situation for negotiation. It would authorize an appeal to her interest, which she could not resist. He begged the committee to reflect upon the argument which had been used here, to prevent a late measure which had been adopted, and which had been renewed upon the present resolution, that a great value in property, belonging to the citizens of the United States, was in the power of the British, and that any counteracting measures would place it in extreme hazard. This seemed to him to have been the most prevailing argument which had been urged, and for some time was irresistible. If, then, the argument shall have been applied with so much force here, with how much more force will it be applied in Great Britain, when they find that the property of the individuals of that nation is placed in jeopardy here, and that it greatly exceeds in value the whole of the property which they have infamously detained and condemned? Besides, if, in the event of a war, it should be a war of property, as is every where contemplated. Great Britain will find that the war will be commenced upon very unequal terms. Viewing this measure, therefore, as to its probable tendency to peace or war, he thought the probability greatly in favor of its producing peace. When Great Britain shall find that she is entering into a contest upon unequal terms, when she shall find that it may terminate in a permanent loss of the advantages of her commerce with the United States, when she shall see before her a precipice, into which if she should once enter she never can return, she would pause before she acted, she would take time to count the probable loss and gain, and peace would be the infallible consequence of such deliberate calculations. This measure will convince Great Britain that the United States possess a knowledge of their rights, a confidence in their ability, and a determination in their disposition to assert and support them. A gentleman (Mr. SMITH, of South Carolina) observed yesterday, that a pacific system would probably attach the people of Great Britain to the United States, and detach them from their own Government. The gentleman ought to recollect, that a pusillanimous conduct will not. It is with nations as it is with individuals--to be respected by others, they should respect themselves. The same gentleman remarked, that a change of Ministry might be expected, and advised waiting for the event. The idea is as undignified as it is chimerical. Mr. G. said, he knew nothing of the change of the Ministry--the principle was unknown here. The people here were their own governors. It was immaterial to them who the Minister was. Even in the country where the people were less fortunate, where Ministers govern, a change of Ministers never produced any solid advantage to the nation. It was merely an expedient of the moment, to smother a popular clamor. But, even proceeding upon the gentleman's hypothesis, which Mr. G. thought wholly inadmissible, he submitted to the gentleman to determine, whether a positive submission by foreigners to the avaricious regulations of a Minister, be the most likely mean to render him unpopular at home? On the other hand, whether it was not the most effectual mean of preserving his popularity, and of keeping him in office? He presumed the people at home would never complain of injuries abroad, if those who sustained them refused to complain. It is but by resistance, and throwing the burden upon the people of England, that they can be brought to complain. But, in cases of such extremities as the present, all appeals to the people of England are futile and degrading. Our only resource should be in our own exertions. They would be abundantly sufficient, if we could be brought to believe it. Mr. G. remarked, that the people of Ireland had lately afforded an instructing lesson upon this point. They had arms in their hands for the purpose of asserting their rights; under the idea of acquiescence and submission they had surrendered them to the Government; perhaps, under the expectation of a change of Ministry. Did this act of submission render them more respectable in the eyes of the people of England? Did it encourage the hopes of those who wished the establishment of Government upon the principle of equal rights? Did it not rivet the chains upon the people of England? Did it render the people of Ireland more respectable in the eyes of the people of the United States? To these questions it was unnecessary to give an answer. The people of Ireland reaped the usual merits of submission--imposition and insult. There was another consideration strongly in favor of the policy of the proposed measure. Applications have been already made from different parts of the United States by the immediate sufferers from the British depreciations, for an indemnification of their losses. These applications will, probably, be increased, repeated, and continued; the agricultural and other interests of the United States will, probably, never consent to equalize this burden. The claims of the sufferers upon the Government will gain additional weight, unless this fund should be offered to them for their indemnification. This is the obvious, the natural and the rightful fund for their indemnification; and he thought it was, at least, the duty of the Government to hold it as a pledge for their security. If this measure should not now be adopted, the refusal will lay a foundation for further parties in the United States, which may ultimately have a serious effect upon the Government. An objection, of a very delicate and influential nature, has been made to the proposed measure, which required some consideration--that it would affect the character and credit of the Government. He had viewed this objection with the most deliberate attention, and felt the whole force of its imposing delicacy; but was at length perfectly satisfied that it was unfounded. This objection relates rather to the right than the policy of the United States to adopt the measure. If the United States possesses the right of reprisal upon an honest and sound interpretation of the laws of nations; if the conduct of Great Britain towards the United States be sufficient to justify the excess of the right, he believed the policy of exercising the right could never tarnish the American character, nor lessen the credit of American citizens hereafter. The world of nations, as well as individuals, will easily see, that it was a measure of compulsion, not of choice; that, although the United States believed, they regretted the necessity; that they were not the authors of the original wrongs; that they had borne them with patience, had used their endeavors to prevent the commission of them; and that, when these wrongs were committed and repeated, the United States possessed no other means of redress. Under these circumstances, in the exercise of a substantial right, he did not believe there could flow any consequential wrong. The motive would be looked at, and it would furnish a complete exoneration from blame, whilst the original aggressors would become justly responsible for all the consequences. Mr. G. said, he could not sit down without making some remarks upon the fruits of the conduct heretofore observed by the United States. The most pacific system has heretofore marked the character of the Government. All America looked upon the late proclamation of neutrality as a competent guarantee for peace. He had no doubt but that it was dictated by the purest regard for peace. But what have been the fruits of it? He did not mean to condemn the conduct of the Executive. Perhaps it was suggested by the then existing state of things. He only intended to show, that it had not met with the return it merited, and which was reasonably expected from it. It has not produced peace. A regard for peace has been construed into a fear of war. A resistance of the feelings of the people for the cause of France has been a palatable food for British arrogance and presumption. Submission to aggression has invited new aggressions; appeals for justice have been deemed testimonies of debility, till at length the United States, after having been stripped of their citizens and property, are upon the eve of a war, because they have not exerted their rights at an earlier period. If this conduct should have been heretofore wise and pacific, experience has taught us that it is no longer so; nothing can be expected from the justice, the honor, or the moderation of a court which has proved itself equally a stranger to them all; but, before such a tribunal, acquiescence will beget injuries, injuries will beget insults, and insults will beget contempt, degradation, and war. Mr. SWIFT remarked that, on the first view of the subject, he had been inclined to favor the proposition, not having attended minutely to the distinction made by the laws of nations respecting the property of an enemy liable to reprisal; but on a full investigation of the subject, and mature deliberation, he was convinced that the proposition under consideration would be a direct and manifest violation of the laws of nations; he was, therefore, clearly and decidedly opposed to its adoption. Gentlemen have said much respecting the insults and the injuries which we have received from the British nation; but Mr. S. conceived it to be unnecessary that gentlemen should describe their insults and injuries in the highest colors to inflame our passions, and to animate our resentment. He believed that every gentleman in the committee deeply felt the indignity which had been offered to their country, and was convinced that Great Britain had been guilty of a violation of the laws of nations; but, under such circumstances, it was our duty to conduct with coolness, candor, and moderation. He thought that the heat and passion which had been manifested in the course of the debate were inconsistent with that dignity and propriety which ought to mark the deliberations of the Legislature. Mr. S. observed, that the conduct of the British Court in regard to their concealing in such a singular manner the Order of the 6th of November, and the equivocal terms in which it was expressed, was greatly to their dishonor. But he thought that the words _legal adjudication_, would fairly admit of a construction that no American vessel that should be taken pursuant to that order, could be liable to be condemned, unless warranted by the laws of nations. There was reason to apprehend that such was the intention of the British Cabinet; and that the Courts of Admiralty in the West Indies, in their condemnations, had exceeded their jurisdiction, and contradicted the design of the Court of London. Recent intelligence confirmed the idea. No information of these illegal transactions had yet been communicated to them. It was possible that when that court were made acquainted with the injuries we had sustained that they would award restitution or compensation. Mr. S. remarked that, by the laws of nations, no nation had a right to make reprisal for any injury till all other means of obtaining justice had failed; that it was our duty in the first place to represent to the Court of Great Britain the spoliations that had been made on our commerce by the illegal condemnation of our vessels; that, till we had done this, the laws of nations would not warrant us to make reprisals on the goods and effects of the British nation. That there was a possibility of obtaining a satisfactory explanation of their conduct and reparation for the injuries we had suffered. It was, therefore, a proper subject of negotiation. But, he said, if that nation will not do us justice, then we are authorized to make reprisals. Mr. S. then observed that, when we had taken such steps as would authorize reprisal, we should be precluded by the laws of nations from adopting the proposition under consideration. He said that a gentleman from Maryland (Mr. MERCER) had yesterday asserted that _Burlamaqui_ was the only authority among the writers on the laws of nations against the measure; and that the opinion of _Vattel_ was in favor of it. Another gentleman from Maryland (Mr. SMITH) had read a passage from _Vattel_, which he considered as an authority in point, to justify the seizing of private debts; but not debts due from the public. But if these gentlemen had thoroughly examined _Vattel_, they would have found, instead of his being an authority in their favor, he had in the most direct terms maintained a contrary opinion. He then read a passage from _Vattel_, that showed that the effects of an enemy in a country at the time of a declaration of war cannot be seized, but that the owner is entitled to a reasonable time to remove them; and another passage, which expressly declared that, by the usage and custom of modern nations, public and private debts are not the subject of reprisal. Mr. S. conceived that these rules were founded in the highest wisdom; that all debts were contracted under a sanction of public faith, and an understanding that a war should not render them liable to seizure or confiscation; that a moral obligation existed between the contracting parties for the payment of the debts; and that no government could ever have a right to violate a moral obligation. That, therefore, by the law of nations in all instances where property comes into the possession of a nation by a confidence reposed in their honor and faith, as in case of public or private debts, such property can never be the subject of reprisal, because this would be to authorize a breach of public faith; but reprisals are always to be made on property in possession of the nation who has done the injury, and which may be taken without any violation of those principles, which ought to be held sacred in time of war. Mr. S. remarked, that it had been suggested that the British nation had been guilty of a violation of the laws of nations in their treatment of us; and that, therefore, we were not bound to govern ourselves by that law in our conduct towards them. This argument, however plausible, he said, would not bear the test of examination; that all reprisals were justified only on the principle that the nation on whom reprisal is made has been guilty of a previous violation of the laws of nations. When a nation disregards that general law by which the conduct of all independent communities towards each other is to be regulated, the same law points out the mode of redress. If there has been no violation of that law, there can be no reprisal. If there has been a violation, then the reprisal must be pursuant to the law, for it is the highest absurdity to say, that because there has been an infraction of a law which authorizes a certain mode of redress, that we may pursue a different mode of redress in violation of the law which gives us the right. This would be at once to renounce the whole system of the laws of nations, and throw mankind back into a state of savage barbarity and ferocity. Mr. S. then adverted to the policy of the measure. He said, upon a fair calculation, it would be found that the adoption of the proposition would be productive of far greater injury to this country than the amount of the losses sustained by our citizens in consequence of the spoliations committed upon our commerce. It is evident that this country, even admitting that a war should take place, would wish to renew their commercial connection with Great Britain. But if, in contempt of the law of nations, we seize on private debts, we shall for ever forfeit all credit; no trust can be reposed in our citizens, and no faith in our Government. No foreign merchants will ever deal on credit with our citizens, from a well-guarded apprehension that, in case of a war between the countries, the sacred nature of private contracts will not protect them against the hand of a Government which has exhibited the example of a deliberate violation of the laws of nations. When we consider the immense advantages that can be derived from private credit and national honor, it will be easy to imagine the infinite mischief that must result from a disregard of those principles. Mr. S. objected to the measure on the ground that he considered it to be a declaration of war; and he did not think that the circumstances required or justified our taking that step. He said that notwithstanding the unwarrantable proceedings of the British nation; yet, no act had been done by the British Court that clearly indicated an intention to make war directly upon us, or that could be considered as direct and intentional war, though we might consider many of their acts as just causes of making war on our part. The revocation of the Order of the 6th of November, the new instructions of the 8th of January, and the explanation given to the merchants of London, clearly evidenced that a war might be avoided with that nation. While there was the remotest possibility of preserving our peace we ought not to do an act which might endanger a war. While then the conduct of the British Cabinet would admit of an explanation, while there was a prospect that we might obtain by negotiation restitution of the property of our citizens or compensation for the losses they had sustained, we ought to pursue that mode; but if we proceeded to make reprisals by adopting an illegal measure, it must certainly be deemed a declaration of war. The omission of the regular means of obtaining satisfaction by negotiation, and an unwarrantable mode of reprisal, would certainly be just causes of war. If we must be driven into a war, it would be of the highest advantage to us to conduct it in such a manner as to convince the people of Great Britain that we sincerely wished to avoid it, and that the unjust and illegal proceedings of their own court have been the sole cause of the war. In such a case we have reason to think, that so great is the interest of that nation in preserving our commercial connection, that a powerful party will be formed in our favor to oppose the injustice of the Government. The sentiments of the people will be against the war, and the court will find it extremely difficult to maintain it under such circumstances. But if, without demanding an explanation, we proceed to adopt rash, violent, and unwarrantable measures, the spirit of the nation will rise against us, and the people will join the court in prosecuting a war which will be then deemed just and necessary. Mr. S. then observed that we ought to take into consideration the present situation of Europe; that the late successes of the French nation had materially changed the political prospect. It was possible that these successes had been the cause which had produced an alteration in the views of the British Court. If events had happened which had rendered the disposition of that nation less unfriendly and hostile, we ought to take advantage of that circumstance, and not do any thing to check the progress of that favorable disposition. He most sincerely hoped that these successes would convince the combined powers of the impossibility to conquer France, and produce a general pacification. While such were the prospects, he ardently wished that a measure repugnant to the principles of common honesty and common justice might be rejected; and he hoped that no gentleman in the committee would vote in favor of a proposition which would fix an indelible stigma on our national character. The committee now rose, and had leave to sit again. THURSDAY, April 10. _Non-Intercourse with Great Britain._ The House again resolved itself into a Committee of the whole House, on the motion of the 7th instant, to prohibit all commercial intercourse between the citizens of the United States and the subjects of the King of Great Britain, so far as the same respects articles of the growth or manufacture of Great Britain or Ireland. Mr. SEDGWICK said he was sorry to rise, unprepared as he was, as he had yesterday occupied as great a portion of the time of the committee as perhaps he was entitled to. He had hoped some other gentleman would have risen, who, having better arranged his ideas than himself, had a preferable claim to the attention of the committee. Unprepared as he was, he could not permit a question so important as that under consideration to pass, without entering against it his solemn protest: a question involving the dearest interests of our country, and threatening to exchange the unexampled prosperity it had for some years enjoyed, for all the horrors of war. He said he the more regretted the part he was obliged to take on this occasion, because he feared he should, in his vote, divide from many gentlemen whom he much respected; but as his opinion had been formed on mature deliberation, neither his honor, his conscience, nor the duty he owed to his country, would permit him to be silent. If the evils he foresaw should result from the measure under consideration, he wished it might be known that no part of them could with justice be imputed to him as their author. If, therefore, he should be so unfortunate as to stand single and alone, he would not fail to oppose, as far as he could, the measure before the committee. That injuries unprovoked and inexcusable had been inflicted by Great Britain on this country, was acknowledged by all. No man felt stronger indignation than himself at the insults which had been offered to our country, and the wrongs which had been done to our citizens; no man was less disposed tamely to bear the haughty and unprovoked aggressions of any foreign nation; no man would go further to procure redress for our wounded honor, and indemnification for our injured citizens. If, after seeking reparation in the way dictated by prudence and humanity, happily prescribed by the modern usages of civilized nations and commanded by the principle of religion; if fair negotiation should be tried, and justice not obtained, he would then seek redress by the means which God and nature had given us. He remembered well the miseries and vices of war, a war in which he had taken a part. It was a war of honor and interest: he well remembered its circumstances and effects. He had lived to see the wastes of that war repaired; to see a state of order and security; to see his country progressing in all the means of happiness. No man who loved his country, and rejoiced in its prosperity, would consent, but from inevitable necessity, to see it again plunged in the horrors of war. Although all combined in opinion that our injuries were great, that they must be redressed, yet no one had suggested that war should precede negotiation. Respecting this, there was happily but one opinion. On every side of the House, it was acknowledged a duty indispensable in our present situation, to state our complaints of injuries to the authors of them, and to demand redress. We were only divided as to the manner of our application, and the circumstances under which our demand should be made. He had already, on another occasion, taken the liberty to declare his opinion of the line of conduct which was dictated by our present situation; that we should manifest that we are averse to war; but, should it become inevitable, we should encounter it with that undaunted spirit which became freemen, insulted in their honor and injured in their rights. He had the most perfect confidence in the bravery of our citizens. At the same time that he knew they would never surrender their rights, he was sensible that they would avoid, if possible, an unnecessary and wanton effusion of blood. Gentlemen had disclaimed any intention to adopt any measures tending to war; they had said this measure had no tendency to such an event. This assertion he could not believe, because this measure contained a threat of inconvenience; and every threat of inconvenience was a cause of irritation, and every irritation between nations who had already differences to decide, undoubtedly tended to widen the breach, and of course to produce war. If gentlemen were sincere in their declarations, that all differences between America and Great Britain should be terminated by peaceable negotiation, (and he would not call their sincerity in question;) if Great Britain was proud, haughty, and insolent, as she had been repeatedly denominated, was it probable, he asked, that she would be more inclined to do us justice, by enlisting her pride and insolence against us? Mr. S. said, that the late violences by which the property of our citizens had been plundered, were the immediate and avowed cause of the present measure; that as yet no representation of these injuries--no demand for compensation had been made; that such representation and demand should precede hostility was conceded by all. It only then remained to be considered, in what terms and manner such claim should be exhibited. In terms, he said, doubtless firm and decided; but if it was intended to produce the desired effect of peace, and to prevent hostility, the language should be decent and conciliatory. He called on gentlemen to show an instance, in modern times, where a nation complaining of injuries, but desirous of peace, had accompanied their demands of justice with threats of inconvenience? The opposite practice was universally established, and on the known principles of human nature. He appealed to the feelings of every honorable man in the committee, whether demands for justice and reparation for injuries were enforced by threats? whether repugnance to a compliance with such demands was not created by such means? If every man felt the operation of this principle, how much more powerful would it be on the minds of the governors of a nation styled proud and insolent? He said he would charge no man with an intention to involve this country in all the horrors and desolating scenes of war. He could not, however, help declaring, that war or amicable negotiation evidently must decide the controversies between America and Great Britain, and that were his mind determined on the former, he should recommend those measures which gentlemen had brought forward to the consideration of the House, as the most operative means of rendering the event certain, and of banishing every prospect of accommodation. To seize on British property, to confiscate or sequester British debts, to annihilate as far as in our power her commerce, to starve her manufacturers, and to humble her pride; these were infallible means of defeating negotiation, and of uniting, as one man, that nation against us, in all the views of her administration. It had been said, that a principal benefit to be expected from the institution of Republican Government was, that cool and temperate reflection would direct the conduct of nations. How far our conduct on this occasion had verified such an expectation, he wished gentlemen to reflect. He had himself fondly hoped, in the Government of this country, to have seen these principles exemplified, and all intemperance of expression, and all the heat of passion, banished. It had been said, that a statesman should be all intellect: never, surely, was a time or a country, which more required than the present time, and by this country, the exercise of cool temper, to the exclusion of passion, to conduct with safety the political machine through surrounding dangers. He well remembered a former non-importation agreement; he remembered, too, its effects: they were such as might have been expected; they were such as to convince every cool and considerate man, that the measure itself was impolitic and unwise. It immediately raised the price of all articles of importation to an exorbitant and extravagant height. Hence it was immediately beneficial to importers and shopkeepers, and hence it may be easy to understand why this measure was said to be so popular in Philadelphia and other great towns. But as the Representatives of the whole people of America, the Legislature ought to reflect, that in proportion as this measure would operate beneficially to the dealers in imported commodities, it would become burdensome and oppressive to those who are best entitled to our regard--the substantial yeomanry of the country--on whom we must principally depend for support, in the arduous conflict which we had too much reason to apprehend. If we must eventually support our claims by arms, the more property we could import before the commencement of war, the more beneficial would it be. In that case, the most wise and prudent policy would be, that which would give the greatest extent to our credit; and, on the contrary, the most unwise and wretched, that which would tend to deprive our people of the ordinary means of supplies. If this system should prevail, were we to receive British productions through other countries? This would be injuring ourselves, without affecting Great Britain. Was there any other country which could give us the same supplies we wanted? There certainly was none. Were we to depend on ourselves alone, the inconvenience would be great, if not intolerable. What, he further asked, would become of our produce, in the event contemplated? Without entering into a minute detail, he said, he would venture to pronounce that a great part of it would perish on our hands. It was, he said, doubtful, how far at any time the proposed system might go to distress Great Britain; but, at this time, it would afford facility to her in recruiting her fleets and armies. Were manufacturers and laborers thrown out of employment, and thereby deprived of bread, they would be alike stimulated by want and despair to fight the battles of their country against those who had reduced them to necessity. In short, he saw nothing which should stimulate the Legislature to adopt this measure, but passion without, and resentment within, these walls. He saw nothing in the system itself, as it respected Great Britain, but vain and ineffectual irritation; nothing in relation to our own country, but defeat, wretchedness, and want. He said he had taken the liberty to suggest to the committee certain constitutional considerations. The answers which had been given had been by no means satisfactory. It was incumbent on gentlemen who had so frequently warned us of the danger of usurping power--who had so frequently, and in language so animated, charged us to avoid grasping power, by implication and construction; it was incumbent on those gentlemen, would they preserve consistency of character, clearly to demonstrate the authority which they assumed, that it might not be supposed that their construction of the constitution was a convenient accommodation to the existing circumstances. It was not now a question whether the people had made a wise or prudent distribution of the powers of their Government: they had declared their will, and that will we were bound by every consideration of honor and duty to execute. In the instrument under which we acted, they had declared that the PRESIDENT, under certain modifications, should be their organ, to treat exclusively with foreign powers. This authority, thus exclusively delegated, includes all the terms on which a treaty could be formed. What was the present measure? Prescribing the terms of treaty, and restraining the constitutional power from treating on any other terms. If the Legislature could prescribe those terms, in this instance, it may then prescribe all the terms, in every instance; and of course control, in all things, the exercise of that power. To this reasoning two answers have been given; the one by a gentleman from Pennsylvania, (Mr. SMILIE,) that the Legislature might make such a law, because the Executive could repeal it. He really could not comprehend the force of the reasoning; he was glad, however he could, with perfect confidence, contradict the assertion, which he was sure would be a very disgusting one to the people of America. There was, in fact, in no instance, an authority given to the Executive to repeal a constitutional act of the Legislature. The other answer was that given by a gentleman from Virginia, (Mr. NICHOLAS,) that there could be no objection to the exercise of this power, if it should be assented to by the PRESIDENT and Senate. This was a still more extraordinary and unsatisfactory answer than the other. It implied that the PRESIDENT and Senate could make grants of power to this House not contained in the constitution. To this he would answer, that all the powers which the House could legally exercise, were expressed in the instrument under which we acted; that those powers could be neither enlarged nor abridged, by any man or body of men on earth, but in the way pointed out by the instrument itself. Mr. S. said these considerations he had expressed without any previous preparation, as they occurred to his mind. Should gentlemen who viewed the subject in the light he did remain silent, he would, in the further progress of this measure, he pledged himself, with more orderly arrangement, and he hoped with more perspicuity and force, address himself to the consideration of this committee, or of the House. It would avail little to tell him that his opposition would be unpopular; no man more than himself wished the good opinion of his countrymen, but no personal inconvenience, no loss of fame or popular affection, should ever induce him to see his country threatened with evils incalculable in number and duration, without warning her of her danger; a country which he loved, and which he might, on this occasion, be permitted to say, he had long served with honest fidelity, and without a single instance of sinister or mere personal regard. The committee now rose, and had leave to sit again. FRIDAY, April 11. _Non-Intercourse with Great Britain._ The House again resolved itself into a Committee of the whole House on the motion of the 7th instant, to prohibit all commercial intercourse between the citizens of the United States and the subjects of the King of Great Britain, so far as the same respects articles of the growth or manufacture of Great Britain or Ireland. Mr. BOUDINOT first rose this day, and said: Mr. Chairman, in a question of so much national importance, there needed no apology from any member of the committee for claiming their attention, while he gave the reasons for his vote. The impatience shown by his colleague, (Mr. CLARK,) or any other gentleman, for the question, ought not to influence any member of the committee. When the fate of a nation of as much consequence as the United States, appeared to be suspended on a vote, the least to be expected from gentlemen was, to act with freedom, deliberation and independence. He supposed he should be among those who, at the taking of the question, would probably be found in the minority. That this would be his vote, if he was convinced that he should be single and alone. He felt himself deeply and seriously affected with a view of the precipice on which, in his apprehension, his country seemed to stand, and he wished, for his own part, to take a full and deliberate view of it, before he joined in precipitating a leap, that might not add to her safety or happiness. Reasoning and not declamation should be expected from gentlemen in favor of the measure under consideration. He said, he would address himself to the judgments, and not to the passions of the committee. He acknowledged it might fall to his lot to mistake the true and essential interests of his country; but, if this should be the case, he had the satisfaction of knowing that it would arise from the most honest and upright intentions. It was, therefore, on these principles, that he should proceed in giving his opinion on the important resolution on the table. But, before he went further, he could not forget the respectful compliment paid yesterday by his honorable friend from Maryland (Mr. SMITH) to his moderation and gray hairs; indeed, he should not have taken it to himself, as he had the honor of having white, instead of gray hairs, had not Mr. S.'s attention been immediately fixed on him. If either age or moderation would command his worthy friend's close consideration of this subject, he besought him, as well as the other gentlemen of the committee, to join in attending to it calmly and seriously for a few moments, before the die was cast. He said, he owed much, on behalf of his country, to that gentleman for his services in the field during the late war, when both his zeal and his passions were rendered so eminently useful, that he could with pleasure apologize at all times for his warmth and animation on any subject when their common country was not to be affected. But would he permit him, earnestly, to request that, with other members, he would call to mind, that they were now the Representatives of four millions of people? That perhaps the lives of thousands of their fellow-citizens were depending on a single vote. That the welfare of a country dearer to them than life was at stake. Gentlemen must, therefore, agree, that the question was a serious one, and deserved to be treated with the most serious and deliberate consideration. Judgment, and not resentment, should direct the final determination, let it be what it may, and give a sanction to all their measures. He observed, that gentlemen against the question had been accused of want of propriety, in looking calmly, and without the exercise of their passions, on the sufferings of the unhappy prisoners at Algiers, and the piratical spoliations of our fellow-citizens in the West Indies. Yes, sir, said he, when he knew that it was neither passion nor declamation that could afford effective relief to these suffering members of the political body, he should continue to persist in that steady, serious, and deliberate line of conduct, that, in his estimation, was only calculated to produce that permanent and efficient aid and relief, which their extreme distress so loudly called for; but, in his turn, he asked gentlemen to give up their warmth on this occasion, that they might also reflect, even without passion, on the number of their fellow-citizens that must fall a sacrifice in the most successful war. Will not gentlemen weigh well that vote, that may possibly increase the number of mourning widows and helpless orphans? These considerations had led him to consider the measure now proposed, as of great moment and importance, and to wish it might be reasoned on and considered in a manner becoming Legislators and Representatives of United America, who have been sent here as her counsellors and trustees, and to whom she has committed her best and most sacred interests. He said, for argument's sake, and to simplify the debate, lest he should be drawn into unnecessary disputation, he should concede for the present: the constitutionality of the resolution proposed; the right of the committee to originate and determine on the measure; the unprovoked aggressions of Great Britain to warrant and justify the prohibition. These arguments had been repeated and urged with great apparent force, by gentlemen in favor of the affirmative side of the question; but, were the principles arising from these facts sufficient to justify a determination in favor of so harsh and unprecedented a proceeding, without previously demanding an explanation and full indemnification, agreeably to the customs and usages of other nations? Would arguments of this kind satisfy our constituents, if they should find themselves suddenly plunged into an expensive and ruinous war? Would it not very naturally be asked, why were not the true interests of the United States under these existing circumstances carefully inquired into, and made the principal and leading object of attentive consideration? In his opinion, this should peculiarly be the sum of their present inquiry--was it not the duty of the committee critically to examine into the preparation they were in for a step, that, in the imagination of some gentlemen of character and reputation, at the last, might precipitate our country into an immediate war? Were our ports and harbors in any tolerable state of defence? Were our magazines and arsenals properly supplied? Were our citizens in a state of organization as militia? In short, did not the measure threaten a sudden transition from a state of profound peace and happiness, unequalled by any nation, into a state of war and bloodshed, without taking those previous and prudent measures that might probably lead to an avoidance of this national evil, or at all events enable us to meet it with decision and effect? Gentlemen had referred the committee to the conduct of America in 1776, and the success of the late war has been urged for our encouragement. The non-importation agreement has been recurred to as a precedent in point. He said, he was well acquainted with most of the events of the late Revolution. The first motions towards it, found him engaged in the common cause, and his best endeavors to complete and secure it had never since been wanting. He well remembered the consequences of the non-importation agreement, and the sufferings of our brave fellow-citizens from that imprudent measure. He had tracked them over the frozen ground by their blood, from the want of shoes, and was sensible that many had perished by the inclemency of the season, for want of tents and clothing: that agreement was universally reprobated, as a measure imprudently entered into on the principle of expecting to be involved in a war, which had it been then contemplated, nothing could have justified. Mr. B. appealed to the knowledge of many men who heard him, that this agreement had often been urged to Great Britain, as a conclusive evidence, that at the time of its adoption, America had not the least intention of independence, or a separation from the mother country; otherwise, she could never have been guilty of so impolitic a resolution. He asked, then, if the committee would now repeat the mistake with their eyes open, and expose our country to the same misfortunes, and our fellow-citizens to a repetition of sufferings, by a measure that promised not one important advantage to the Union that he had heard of? In the late war, America had all the ports and harbors of the other European nations open to her, but now circumstances would be altered; in case of a war the very reverse would be our position, excepting as to those of France. Mr. B. confessed, that his arguments were founded on his conviction that the resolution was a measure that would necessarily produce war, immediate, inevitable war. His reasons were drawn from the present state of Great Britain, being in alliance with the principal powers of Europe, and under treaties to make all wars, arising from the united opposition to France, a common cause. The necessity she would have of employing her supernumerary hands, if not in manufactures, in her armies and navies, to prevent trouble at home, added to her old grudge against us on account of principles that promise much trouble to all the monarchs of Europe: her late conduct with regard to our trade, founded on the instructions of the 8th of June, and 6th November last: her withholding the posts, contrary to every principle of justice and good faith, and against the most positive assurances: and lastly, from the anxiety to regain the territory between the Lakes and the Mississippi;--he agreed that neither of these singly, nor even the whole together, could justify her in her own opinion, in making an open attack upon us, but might tempt her to construe the measure before the committee into an act of hostility on our part, as contrary to our professed neutrality. He said, it was a point conceded in the laws of nations, that granting to one of the belligerent powers advantages in your ports which were refused to another, was a breach of neutrality. The object with Great Britain would be, to convince her allies, that the aggression arose on account of the war with France, to prevail on them to make it a common cause; and in this they would not want plausible evidence. It was not sufficient, he alleged, that we knew ourselves innocent of the charge. We should be prudently careful not unnecessarily to give reason to justify the construction. If the previous steps of negotiation, used by all civilized nations, were neglected, they would have the advantage of the argument, and we should injure ourselves. He asked if any gentleman would say that a prohibition of commerce at the eve of a war, or even the apprehension of it, was wisely calculated to clothe an army, replenish our magazines, supply our arsenals, or provide a revenue by which to support a war? He wished every member had taken the trouble he had done, of looking into their stores, inquiring what was on hand, calculating what would be absolutely necessary, and reflecting seriously and dispassionately on the sources of supply. If they had, he doubted not but that they would find something more than passion and resentment necessary, to meet the probable consequences of so premature a determination. It was no uncommon thing for gentlemen to differ on important measures; and he would not even insinuate, that he might not be found wrong in these ideas, and wholly mistaken in his conjectures on this occasion, but he begged members to consider the different ground on which the two sides of the House stood. If the minority, of whom he expected to be one, should in the end be found to have been alarmed with consequences altogether unfounded, and that the issue proved successful to the peace of our common country, they would have the happiness of rejoicing with the majority in their superior wisdom and foresight; and though even they should suffer in character, yet their country would be saved. But if the minority should in the end be right, and our country should be deluged in a destructive war, and her best interests be endangered by the discovery of the mistake too late for redress, gentlemen in favor of the resolution, would seriously regret that they had not at least used more caution. He said, as at present advised, he should give his vote against the resolution. It would be from a thorough conviction, on the most careful examination, that the resolution was against the interest and welfare of the United States, all circumstances considered. And this he should do, wholly regardless of the malevolent insinuations, that Britain had an influence in that House. He felt a conscious dignity of mind, a virtuous pride of heart, in believing that it was not all the wealth of that opulent nation could purchase his influence to a single measure injurious to his country; and under that conviction, he could not believe there was a member of the committee in a different predicament. He again repeated, that he should most sincerely rejoice, if this measure should be adopted, to find, in the end, that his mind had viewed it, as productive of consequences that were wholly unfounded; and, although under his present view of the subject, considering it as inimical to his country, he was bound in conscience to vote against it, yet the councils of America were directed by superior wisdom, and that this country had reaped the rich harvest of peace and happiness. But it might now be asked, if it was meant passively to submit to the injuries acknowledged on all hands to have been sustained by the imperious and overbearing conduct of Great Britain? He answered no, by no means. He would follow the examples and pursue the measures of other nations in like circumstances--examples and measures founded in policy and sound understanding. He would, by a special envoy, make known to that court our sense of her unwarrantable aggressions; he would demand immediate indemnification for the present, and security against future sufferings of the like nature--insist on a categorical answer, after applying to her justice and best interests; and if at last a war must be the only means of obtaining justice, he would then (being previously prepared) meet it as became a free and independent nation, trusting to the righteousness of her cause. By this means, the other nations of Europe would be made acquainted with our complaints--become witnesses to our love of peace, and bear testimony to the justice of our appeal to arms. He said, he had fully considered the question--he had viewed it in every point of light--he had endeavored to consider the consequences which most probably would arise from it, and he could not convince his mind, that the measure would be productive of any good to the United States, while it offered many reasons to conclude, that it might be fraught with the greatest evil. In case of the most successful war, America had nothing to gain, while her loss of blood and treasure was sure and certain. He had once flattered himself that this was the only country on the globe, whose interest it was to be at peace with all the world, and at the same time the interest of all the world to be at peace with us. But he feared we had been so much actuated by a resentment of injuries received, as to lose sight of our true interests under existing circumstances, and, therefore, should be hurried into measures we might hereafter have reason seriously to lament. The committee now rose. MONDAY, April 21. _Non-Intercourse with Great Britain._ The House resumed the consideration of the resolution reported by the Committee of the whole House on the fifteenth instant, to prohibit all commercial intercourse between the citizens of the United States and the subjects of the King of Great Britain, or the citizens or subjects of any other nation, so far as the same respects articles of the growth or manufacture of Great Britain or Ireland; and the amendment and modification thereof, which was proposed on Friday last, being further considered and debated, the said resolution was amended to read as follows: "Whereas, the injuries which have been suffered, and may be suffered, by the United States, from violations committed by Great Britain on their neutral rights and commercial interests, as well as from her failure to execute the seventh[50] article of the Treaty of Peace, render it expedient for the interest of the United States, that the commercial intercourse between the two countries should not continue to be carried on in the extent at present allowed: "_Resolved_, That, from and after the first day of November next, all commercial intercourse between the citizens of the United States and the subjects of the King of Great Britain, or the citizens or subjects of any other nation, so far as the same respects articles of the growth or manufacture of Great Britain or Ireland shall be prohibited:" And then the main question being put, that this House doth agree to the said resolution, as amended, it was resolved in the affirmative--yeas 58, nays 38, as follows: YEAS.--James Armstrong, Theodorus Bailey, Abraham Baldwin, John Beatty, Thomas Blount, Thomas P. Carnes, Gabriel Christie, Thomas Claiborne, Abraham Clark, Isaac Coles, William J. Dawson, Henry Dearborn, George Dent, William Findlay, Thomas Fitzsimons, William B. Giles, James Gillespie, Nicholas Gilman, Christopher Greenup, Andrew Gregg, Samuel Griffin, William Barry Grove, George Hancock, Carter B. Harrison, Thomas Hartley, John Heath, John Hunter, William Irvine, Matthew Locke, William Lyman, Nathaniel Macon, James Madison, Joseph McDowell, Alexander Mebane, William Montgomery, Andrew Moore, William Vans Murray, Joseph Neville, Anthony New, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, Andrew Pickens, Francis Preston, Robert Rutherford, Thomas Scott, John S. Sherburne, John Smilie, Israel Smith, Samuel Smith, Thomas Sprigg, Thomas Tredwell, Abraham Venable, Francis Walker, Benjamin Williams, Richard Winn, and Joseph Winston. NAYS.--Fisher Ames, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Lambert Cadwalader, David Cobb, Peleg Coffin, Joshua Coit, Samuel Dexter, Uriah Forrest, Dwight Foster, Ezekiel Gilbert, Henry Glenn, Benjamin Goodhue, James Gordon, Daniel Heister, James Hillhouse, William Hindman, John Wilkes Kittera, Henry Latimer, Amasa Learned, Richard Bland Lee, Francis Malbone, Theodore Sedgwick, Jeremiah Smith, William Smith, Zephaniah Swift, Silas Talbot, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Peleg Wadsworth, Jeremiah Wadsworth, Artemas Ward, John Watts, and Paine Wingate. MONDAY, April 28. ALEXANDER GILLON, from South Carolina, appeared, produced his credentials, and took his seat. MONDAY, May 12. _The Embargo._ On a motion made and seconded, that the House do come to the following resolution: "_Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That the present Embargo be continued, and every regulation therein shall be in full force until the twentieth day of June next:" Mr. PARKER observed, that, although he was much in favor of the Embargo when it was first enacted, yet, at the present time, he thought it would be improper to continue it. At that time, a system was formed by a majority of the House, for carrying into effect measures that might counteract the nefarious practices of the British Government on our commerce; that the first object which presented itself to him was to lay an embargo, in order that the large fleets and armies of the British in the West Indies, who were there on a design to conquer the islands of our friends, and had committed robberies on neutral property, that would disgrace a banditti of pirates; and, in order that they should be deprived of the supplies which they might require, as well as to prevent the further capture of our vessels, and treating the American flag and citizens with insult and cruelty, I thought that would be the stepping-stone to other measures which were concerted to oppose the insults of our enemies, and doing justice to our citizens, whose property had been robbed and persons abused by British armed vessels; that this was to be followed by a bill which had passed the House of Representatives by a great majority for breaking off all commerce with Great Britain after November next, and this was to be followed by an arrestation of British property, to reimburse our citizens for the losses we had sustained; that, as the second measure was rejected by the voice of the VICE PRESIDENT in Senate, which had broken the chain; and, as the PRESIDENT had appointed a pacific Envoy Extraordinary to the British Court, and as the fleets and armies of the British in the West Indies, under Sir John Jervis and Sir Charles Grey, had captured most of the French islands, he thought it would be improper to continue the Embargo, the more so as the PRESIDENT, by slipping in and arresting the progress of the Representatives, no doubt, with a certain hope of the continuance of peace, and being responsible therefor, he deemed it best not to interfere, and to give up every further prospect of hostility, until the event of the mission to Britain shall be known. Another reason that operated very forcibly with him, was, that our French friends were much in want of provisions; and, as there was no prospect of discriminations in their favor, which he had wished for, he should give it as his opinion, that it would be improper to continue the Embargo after the 25th instant. From the commencement of the administration of this Government, certain gentlemen, and particularly those of the Eastern States, had been charged with regulating their political conduct by local considerations. They had disregarded the interest of every part of the United States, but the particular districts of country from which they came. The charge was now reversed: those districts have suffered infinitely beyond their neighbors, by the effects of those measures of which we complain; and, notwithstanding all this, the Representatives of those districts have all at once so totally changed, have become so tame, so torpid, as to be regardless of the interests and sufferings of their immediate constituents. Nor (said he) is this all; our kind Southern brethren have, from pure disinterested benevolence and with a most acute sensibility, determined to procure for our constituents that redress to which we are indifferent. It had been said, that the gentlemen who were in favor of indemnification had opposed every measure of energy. They had, indeed, opposed certain measures to which they would give a very different appellation. They had not only favored, but had been the authors of every measure of respectable efficiency, as well in respect to force, as the means of defraying the expenses which our situation had rendered it necessary should be incurred. He need not say who had opposed those measures. Mr. FITZSIMONS hoped that the House would not agree to the resolution. He stated the numerous inconveniences which had arisen from the measure already. The system of British conduct was now altered. There were at present many ships detained in the harbors of the United States, that were cleared out before the Embargo was laid. Their detention, as far as he could learn, was contrary to the common practice of nations, in cases of that nature. Mr. W. SMITH said, that the reason why the Embargo had been laid on was, the piracies of Britain. The second orders of the 8th of January last had produced no alteration for the better in the conduct of her privateers. We had yet heard nothing from the agents despatched to the West Indies; and we ought not to revoke the Embargo till some change of system, on the part of Britain, should warrant the measure; we knew nothing about the actual state of matters in the West Indies. The newspapers were filled with stories of releasing American vessels in one island, and of capturing them in another. One captain had come to this port, and told a story to the editor of a newspaper. He then went to another publisher of a paper, and told a story _quite opposite_! The House could make nothing of such a farrago--such a jumble of contradictory reports. The public sentiment was against taking off the Embargo. Mr. WADSWORTH was against the motion. It had been said that American ships did not arrive from the West Indies. They did arrive in great numbers, and as quickly as could be expected. From this he inferred that the ravages of British privateers had, in a great measure, ceased. Insurance at present is not higher than ten per cent. A million of bushels of salt will be wanted this season in the American States; and they will be a million of dollars dearer, if the Embargo is kept on, than if it is taken off. Mr. W. said, that he had got home all his importations for this year. He had nothing, therefore, to apprehend on his own account, from the continuance of the Embargo. It was his firm opinion, and he could declare it upon his honor to be so, that, if the Embargo continued, the value of his own imports would rise one hundred per cent. He believed that salt would rise to three dollars a bushel. Mr. NICHOLAS had approved of the Embargo when imposed; and he now hoped that it would be repealed by as great a majority as that which voted for laying it on. Mr. GILES recommended a discontinuance of the Embargo. The gentleman from South Carolina had urged the public sentiment as a reason for keeping it on. He was glad to hear that the public sentiment was an argument in that House for the adoption of measures; and he was particularly highly pleased that this respect for the public sentiment had now come from the quarter from which it was at present announced. He hinted that the gentleman (Mr. W. SMITH) had not always paid an equal deference to public sentiment. He was for the Embargo being taken off, because he understood that France would suffer considerably by its continuance; because it would materially affect the American farmers; and because, as the danger was now more fully known, merchants would beware of the danger, and provide more or less for their individual security. Farmers in the United States had entered into contracts of various kinds. For the discharge of these, they depended on the sale of their crops. He was originally for the measure, which had answered many good purposes, by preventing American vessels from falling into the hands of British privateers. He was likewise for it, as connected with a system of other measures. [Mr. G. alluded to the sequestration of British property, &c.] These measures had been laid aside; and therefore, he would now likewise be for laying this aside. Mr. DAYTON said, that he had been in favor of laying the Embargo, both in the first month and in the second month of its continuance; but he should now be opposed to the proposition on the table, and against extending the Embargo beyond the 25th of this month, when the present one would expire. He would not be understood to found any part of his conduct upon a belief that there was a returning sense of justice in the Government of Great Britain, or that there had been any material change in the predatory system. He lamented that any of those who were on the same side should have entertained such a belief, and especially that they should have mentioned it as an argument against the motion. Where, he asked, was the proof that the instructions of the 8th of January had effected a change favorable to this country in the conduct of that nation? If there was such a change, as some gentlemen asserted, where were the two or three hundred American vessels that have been captured and carried into the British West India Islands? If we look for them in our ports they are not to be found. It is true, that now and then a solitary vessel enters into our harbors, escaped from British depredation; but you would hear the seamen who arrived felicitating one another almost as much as if they had escaped from the clutches of pirates. He said that those instructions might make them more complacent highwaymen, but still they would be highwaymen. They might practice a little more of the solemn mockery of judicial process; they might be a little more observant of forms; but they had since continued, and would probably continue to rob us. He mentioned those things to show that there were other considerations which influenced him. These were, that an embargo would operate hereafter most unfavorably for ourselves, particularly our farmers, and for our allies, the French. Produce, he said, would certainly fall much lower, if we continued the Embargo longer than the 25th. Our farmers and planters depend upon the sale of that produce to pay their debts, or to purchase necessaries for their families; and the resolution on the table would operate doubly hard for them, not only in lowering the value of the product of their farms, but by increasing the price of every foreign article which they would need to purchase from the merchants. The injury which its further continuance would occasion to our allies, the French, had great weight with him in opposing it. It could not be denied, that France was much more dependent upon this country for supplies of provisions, in her present arduous struggle, than any other nation, or than all others; and he inferred from thence, that there could not be a disposition in that House to extend a prohibition which should add to the sufferings of those who are fighting in the cause of liberty against the most powerful combination that was ever formed to crush it. Mr. DEXTER was likewise for taking off the Embargo. It was become pretty evident that the United States are not in immediate danger of hostilities. It was difficult to continue the Embargo till we could hear from Mr. Jay, which might require six months. Farmers suffer as much by the present restraint upon commerce as they would suffer by war. Mr. CLARK was for letting the Embargo die of itself. He did not think it quite fair for gentlemen all to speak upon one side of a question. There was another embargo that Mr. C. wished to see taken off as soon as it could be done with propriety. We have been embargoed in this House, said he, for six months, and if we persist in this habit of making fine speeches upon every occasion, it will be a long time before this second Embargo can be taken off. Mr. GILLON desired that the matter might have a full discussion. He and his colleague from Charleston supported the motion by order of their constituents. Mr. HUNTER then laid on the table a letter subscribed by forty-eight of the merchants and other citizens of Charleston, who had suffered by the piracies of Britain, with a list of the ships thus taken, and an estimate of their value. The letter was read by the Clerk. Mr. GILLON then proceeded to make a variety of remarks in support of the motion before the House. He apologized, if any part of what he had to say, should seem a digression, as the subject was of so great an extent. Mr. G. said, that he remembered, in that Assembly, in 1777, they had used to flatter themselves, that the Eastern States would build ships, and the Southern would supply them with cargoes; and they would mutually support the interest of each other. He regretted that this cordiality was not, on the present occasion, so ardent as could have been wished. As to Britain relaxing her outrages in the West Indies, the sole object of that nation is gain, no matter by what means it could be obtained. Mr. G., to show the infamy of Britain in its proper light, quoted some passages from the letter of a captain in the West Indies, who had received the most unprovoked and the most horrible treatment from these miscreants. Mr. G. hoped that the Embargo would continue for a longer period than to the 25th of June, the term specified in the resolution. He recommended that the House should adjourn but for a short time, and continue the restriction till they sat again. It had been said, that this step would injure our allies; that the price of imports would rise, while that of exports would fall. He would be one of the last men willing to distress our allies. He hoped that the Embargo might be restricted, so as to let the French import from this country whatever they wanted in American bottoms. This would promote our commerce, if gentlemen acquainted with that business considered the measure as practicable. Reverting to the remarks of Mr. WADSWORTH, Mr. G. observed, that salt is at present only three shillings and sixpence or four shillings a bushel in Charleston. The price has fallen there, and it has not even risen at Philadelphia. He did not see much danger of a rise in the price of foreign articles here; merchant ships came at present frequently to this country. They encourage one another, as sure of a high market; and as to the Embargo, they say that it cannot hold long. If the British depredations have ceased, it certainly is not owing to any change of principle in them. But our ships are kept safe at home in our harbors; their British system changes with the course of events in Europe. No nation is more insolent in prosperity; none more humiliated in adversity. Mr. G. concluded by expressing a hope that some way might be contributed for keeping on an embargo, without injury to the farmers. If this could not be done, it must be taken off. Mr. MURRAY hoped that the resolution would not succeed. Indeed he thought, that a total refusal of its terms would consist of our true policy. He said, he was among those who supported the first unsuccessful vote for an embargo, and had in each following vote been for it. There were two reasons that had led him to think the Embargo a good measure, when it was laid, and continued: the risk the American trade and seamen were exposed to from that infamous course of depredation which followed the Order of the 6th of November, and the evidence that flowed from that order of an intention to involve this country in war. The depredation on our trade had been immense; and the Embargo was not only defensible as a good cautionary measure, to secure the seamen and vessels of this country from violence, but by shutting out our vessels from the opportunity of being longer exposed to British depredation, the occasions would be diminished that would bring up the irksome question, how far Government is bound to indemnify citizens for losses sustained under a violation of the laws of nations? The same act under which the depredations had been committed, manifested a spirit of hostility that betrayed the probability of war. He had believed when he voted for the Embargo, that there was something of system in the November 6th Order. He thought that order was the first movement of a system of hostile operations, which some intermediate events had set aside: of this, the Order of the 8th January, and the subsequent dismissal of the captured vessels, was evidenced. If the depredations have ceased, and the vessels captured have been released, and if the probability of war be diminished, the leading motives that justified so strong a measure had ceased to operate. There can be no doubt that vessels that have been taken have been released: the daily arrivals in various parts of the Union prove this. Had the chance of war continued in full force, the continuance of the Embargo, as is designed by this resolution, though it stood on a prodigious sacrifice of present interest, would have been not only defensible, but perhaps essential. It would not only prove negatively a benefit in the preservation of our shipping and seamen, but would operate, in the most sensible manner, as a withdrawal of supplies from the power with whom hostilities might be expected. This great sacrifice to policy he could not now believe to be necessary longer than the term assigned by law--the 25th of this month. The reason why he had voted for the continuance of the Embargo, though we had received intelligence of the revocation of the obnoxious and shameful Order of 6th November, was, because he had lost all confidence in the justice or wisdom of those who issued it; as he thought the first unjust by premeditation, he had suspected the last as insidious; however, this we know, that they have released our vessels. So very extensive was the influence of embargoes in this country, that nothing but dire necessity could justify them; a country with small capital and yet of immense export, and a great part of that export of a quality that could not endure the summer's heat. In such a moment as the present, where evidence of the opinions of the public was so contradictory, he would endeavor to do what appeared to be the broad and general interest. There was, he believed, a field open to speculation by the doubt entertained of this day's decision: a variety of opposite interests of course was thus created, and opinions and wishes might be expected out of doors from the different views of self-interest. Those who had to purchase grain, for instance, calculating on the almost certain termination of the Embargo some time this summer, and foreseeing great prices in foreign markets, might, if they were actuated by selfish principles, wish to see this resolution succeed. As the aspect of affairs had certainly considerably altered, and the reasons that led to the Embargo had so diminished as no longer to warrant either a dread of the capture of our vessels or the apprehension of war, (at least speedily,) he hoped the resolution would fail of success. Mr. BOUDINOT asked what assurance we have that Britain will not play the same game over again that she has done already? Does not that new order prohibit, as much as ever, American vessels from carrying provisions to the West India Islands? As to the Republic of France, he could make great allowances for their situation; but, after all, what apology could there be made for the starving of American sailors in French harbors! Is this proper! These men, as Mr. B. had been well informed, were at this moment actually starving, and in want of the common necessaries of life. If the Embargo is taken off, this must be done upon the principle that it ought never to have been laid on. We must expect, that if our ships go back again to the West Indies, they will be taken as formerly. He could wish to stand by the measure, since it had once been adopted, and let the West Indies see that we can starve them out; let them see that we can make them feel the effects of our measures. He did not wish to continue the Embargo one moment longer than public necessity requires; but to have made the merchants and farmers suffer as they have done for two months, and then to have the business end in nothing, was rather vexatious. Mr. W. SMITH defended his resolution. It had been alleged, that emigrants wanting to get back to the West Indies, were prevented by this Embargo. Government had provided for that. The point, it is said, has been determined, that the West Indies depend on America for subsistence. He asserted, on the contrary, that this point was not determined; and this revocation will prove to the world, that we are as eager to sell, as they are to buy. He hoped that there was a spirit in this country to stand the consequences of the measures. He next replied to the ironical applause bestowed upon him in a former part of this debate, by Mr. GILES, for his recently assumed respect to the public sentiment. He said that it is often very difficult to say what public sentiment is. The member himself had often opposed the public sentiment: he had opposed the arming of frigates, and yet that was surely a popular measure. At the same time, he hoped that no member would vote for a measure that his judgment condemns, because it is said to be a popular one; as this would reduce him to a mere puppet--a machine. It had been said, that this Embargo should be taken off on account of France; but our vessels, if that obstacle is removed, will not go to France: they will go to the West Indies, where they can get thirty dollars a barrel for their flour, which they cannot get in France. Mr. S. next adverted to the other Embargo, upon the members of the House, referred to by Mr. CLARK. He hoped that public business would not be treated with levity, and that they would rise, when they found it convenient; but if the gentleman was so very impatient to get home, he could be very well spared by the House. Mr. CLARK rose, and said a few words in reply. Mr. GILES approved of the idea of Mr. GILLON, as to the limiting the Embargo to the sailing of vessels for the West Indies: and a resolution to this effect was laid by the member on the table. Mr. G. thought this a proper discrimination, and, if it could be effected, the true ground that the House ought to take. As to what the farmers of America had suffered by the Embargo, Mr. G. believed that there was not a single planter in the district which he represented, who would not rather burn his wheat, and dance round the bonfire, than sell it to the West Indies to feed the British army. He would have brought forward a motion of this nature sooner, but he had not thought that it would succeed, nor did he think yet that it would. It would, however, show his sentiments, and he hoped the gentleman from South Carolina, (Mr. W. SMITH,) if he was anxious to support his reputation for consistency, would give his vote for the resolution. And then the main question being taken, that the House do agree to the said resolution, it passed in the negative--yeas 13, nays 73, as follows: YEAS.--John Beatty, Elias Boudinot, Lambert Cadwalader, George Dent, Alexander Gillon, Benjamin Goodhue, John Hunter, Francis Malbone, Joseph Neville, John Page, William Smith, Artemas Ward, and Richard Winn. NAYS.--Fisher Ames, Theodorus Bailey, Abraham Baldwin, Thomas Blount, Benjamin Bourne, Thomas P. Carnes, Gabriel Christie, Thomas Claiborne, Abraham Clark, David Cobb, Peleg Coffin, Joshua Coit, Isaac Coles, William J. Dawson, Jonathan Dayton, Henry Dearborn, Samuel Dexter, William Findlay, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, William B. Giles, James Gillespie, Nicholas Gilman, Henry Glenn, James Gordon, Christopher Greenup, Andrew Gregg, Samuel Griffin, William Barry Grove, George Hancock, Daniel Heister, James Hillhouse, William Hindman, Amasa Learned, Richard Bland Lee, Matthew Locke, William Lyman, Nathaniel Macon, James Madison, Joseph McDowell, Alexander Mebane, William Montgomery, Andrew Moore, Peter Muhlenberg, William Vans Murray, Anthony New, John Nicholas, Alexander D. Orr, Josiah Parker, Andrew Pickens, Francis Preston, Thomas Scott, Theodore Sedgwick, John S. Sherburne, John Smilie, Israel Smith, Zephaniah Swift, Silas Talbot, George Thatcher, Uriah Tracy, Thomas Tredwell, Jonathan Trumbull, John E. Van Allen, Philip Van Cortlandt, Peter Van Gaasbeck, Abraham Venable, Peleg Wadsworth, Jeremiah Wadsworth, Francis Walker, John Watts, Benjamin Williams, and Joseph Winston. THURSDAY, May 15. _Indemnity for Spoliations._ Mr. GOODHUE moved the following resolution: "Whereas it is a primary object in the establishment of Civil Government, to protect the persons and property of its citizens from the violence of nations as well as individuals; and whereas many of the citizens of the United States have suffered great losses, by spoliation made on their commerce, under the authority of Great Britain, in violation of the law of nations and the rights of neutrality, "_Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That the United States will guarantee an indemnification to all such citizens of the United States, whose property may have been captured and confiscated, under the authority of Great Britain, in violation of the law of nations, and the rights of neutrality." Mr. GOODHUE moved that the resolution might be referred to a Committee of the whole House, which was seconded by Mr. DEXTER. It was then moved, by way of amendment to the motion, by Mr. DAYTON, to add these words, "to whom was referred the resolution, for the sequestration of British debts:" to which Mr. GOODHUE objected, because, he said, the subjects were distinct and separate in their nature and ought not to be combined. His resolution went only to establish the principle of indemnification, by guaranteeing it to the sufferers, leaving the fund from which it should be made (in case Great Britain should refuse to do us justice) to a future consideration. That whether British debts were sequestered or not, he said, the United States were bound to see that indemnity was made to the merchants whose property had been kidnapped in a secret, clandestine manner, while pursuing a lawful trade, under the authority of this Government and law of nations, or to give them an opportunity of indemnifying themselves by making reprisals. That it was well known there was great opposition to the sequestration of British debts, and it was very doubtful whether such a measure would ever be adopted; and if this resolution was to be referred to the same committee, and become connected with that, he should very much despair of ever getting any indemnification. That British debts were a very precarious and uncertain fund; and the idea of ever getting indemnification from that source, would operate as a delusion. That if sequestration, under any circumstances, could be proper, it was highly improper at this time, when an Envoy Extraordinary had just been despatched to Great Britain; and more so, as we had discontinued the Embargo, which would put all our remaining vessels in the power of that nation. He should, therefore, consider an agreement to the amendment as amounting to a determination not to consider the subject, at least for the present session. In support of the amendment, it was argued, that the two subjects had an intimate connection with each other, and never ought to be separated; that British debts and British property were the natural and only funds for paying British depredations, and if indemnity was not given this way, it ought not to be given at all; that, as it was probable the resolution for sequestration would lie dormant for some time, it was best to refer this to the same committee, that they might sleep together. The amendment was supported by Messrs. LYMAN, NICHOLAS, SMILIE, DEARBORN, and MADISON. Mr. DAYTON made a number of pointed remarks on what he considered as the total futility of such a resolution. He looked on it as nothing better than an awkward attempt to gain popularity. He complained bitterly of the injustice of bringing up this motion alone; because when he voted against it, it might be surmised that he was unfavorable to the redress of the injuries of a certain class of citizens. He was for redressing their wrongs, and he had marked out to the House the only effectual way in which these wrongs should ever be redressed, viz: the sequestration of British property. He adverted to an expression made use of, some days ago, by Mr. SEDGWICK, who had called this a _mad_ project. Mr. D. was of opinion that the _mad-cap_ might with propriety be transferred to a different situation, which he specified to the House. He said, that we were frequently told of the justice due to the British subjects. Be it so. But was there no justice also due to the people of the United States? And what justice could there be in attempting to make the American citizens pay for depredations committed by British privateers, when we had in our hands British property? Were we not bound to take as much care of our own interest, as of that of other people? It had been said, that as a negotiation was to commence under an Ambassador Extraordinary, that this measure would impede its success. He was, on the contrary, convinced that this was the only step that could be likely to insure the success of Mr. Jay's mission. It would teach Britain to give up her infamous conduct. It would convert, in the literal sense of the word, every English manufacturing house, that had debts due to it in this country, into an American negotiator; and they would, for their own sakes, compel their Government to do justice to the American merchants. Mr. D. scouted the idea of taxing America, to pay for the depredations committed in the West Indies. Supposing, what every gentleman in the House knew to be impossible, that if Congress actually were to pass such an act, the people would not submit to pay their money for any such purpose. Mr. SEDGWICK said, it certainly had not been his wish that the question should be brought forward at the present time. As it was, however, before the House, as he approved the motives of his colleague, who made the motion, and as he perfectly concurred with him in opinion on the subject, he would make a few concise observations. He believed, that in a Government such as that of this country it was the peculiar duty of those to whom the administration has been committed, to extend security and protection to all the interests, and redress for all the injuries of the citizens. That inexcusable and unexampled injuries had been perpetrated, and an immense value in property unjustly spoiled, and that the honor of our country had been insulted, without provocation, were facts admitted by all. Those whose property had been the sport of wanton violation, which, in many instances, had reduced the sufferers from ease and affluence to want and misery, came forward and demanded redress and indemnification. That they were entitled to such indemnification, from the nature of our social compact, he understood to be agreed by every gentleman. [Here Mr. S. was interrupted by several members; and Mr. NICHOLAS and Mr. SMILIE declared that in their opinion, there was no obligation to indemnify the sufferers, except it were done out of a fund to be formed by the sequestration of British property.] Mr. S. said he was obliged to the gentlemen for setting him right; till now he had believed that the right of the sufferers to indemnification was denied by none. If this, however, was really a question yet to be decided, it was due to the sufferers, it was due to our own honor, to decide it without delay. It was asked, by what means is the Government to administer redress? They were first to apply to the Governments which had inflicted the injuries, to state their nature and extent, and to demand, in unequivocal terms, redress. This business, notwithstanding all the opposition which had been made, was happily in a proper train. He hoped and believed that the application would be effectual. It might, however, fail; and in that case, he was free to declare that we owed it to our honor and to our injured citizens, to attempt redress by means of the last resort. In that unhappy event, the interests of the sufferers must be involved with the general interests of the nation, and must abide the ultimate result of war. But if satisfaction should not be obtained by negotiation, and should the Government, from any political considerations, not seek redress by force, in such events the sufferers would have a just claim on their country for indemnification. The question now immediately before the House was, to refer the motion for indemnification to the Committee of the Whole on the subject of sequestration. This was not fair, as it respected that part of the House who approved an engagement to indemnify, and who would never consent to sequestration. It was not fair as respected the sufferers, because he believed there was not a gentleman in the House who supposed that the measure of sequestration would prevail. He was astonished that any should believe that it ought to be adopted. He, himself, without hesitation, approved of engaging to indemnify the sufferers; but at the same time, with all his heart, he abhorred sequestration and confiscation of debts, as the measures which all civilized nations had for more than a century abandoned as immoral and unjust. He would not now enter into a discussion of the question of sequestration. Whenever it came directly under consideration, he pledged himself to undertake to prove that it was against the law of nations, that it was immoral, unjust, and impolitic. He had been sorry to perceive that the feelings of the mover of that proposition (Mr. DAYTON) were wounded, by the terms in which gentlemen had spoken of his motion. He himself, in his conscience, believed it to be immoral and unjust; and, as such, he felt himself bound as a man of honor to give it his strenuous opposition. The gentleman surely could not reasonably expect that independent men would sacrifice opinion to politeness or to friendship. All he could do, and that he did with pleasure, was to declare that he believed the gentleman's motives were pure and upright, and that he had a perfect confidence in the correctness of his moral sentiments. Viewing the subject in the light he had expressed, he appealed to the candor and fairness of gentlemen, to what tended the combining of those irritative questions of indemnification and sequestration, but to wound the feelings and evade the just application of the sufferers? Gentlemen had charged his colleague, and those who had supported his motion, with attempting, by these means, meanly to court popularity. To refute this charge would, in his opinion, be unnecessary, because no well-informed man in America could believe it. He did not know that the opinions which were held by his friends and himself on this subject, were popular; it was sufficient that they were believed to be just. Was he, however, disposed to recriminate, by disclosing motives which were not avowed, but concealed, he could tell a tale, which, he believed, could be heard with effect. Mr. GOODHUE spoke a few words, in direct opposition to what had been advanced by Mr. DAYTON. The two propositions ought to be discussed separately. We had sent a negotiator to Britain, and a sequestration would put an end to his business. The citizens of the United States ought to be taxed, in the mean time, to pay these losses; and it was possible that a sequestration might, hereafter, be thought advisable. He very strongly pressed the idea of a tax to this end. It would be a proceeding of the most superlative impropriety, to lay on such a sequestration at this particular juncture, when we had just agreed to take off the Embargo, because our ships would go to England, and be all seized, by way of reprisal. Mr. CLARK recommended that both propositions should be laid aside for the present, and be suffered to take a sweet nap together, till a more convenient time. He spoke with much contempt of the notion of taxing the people of this country to pay for the ravages of Britain. The Court of London would say to the world: "You see that we acted right: you see the United States think so likewise; for they themselves pay their merchants." Mr. GILES agreed with Mr. CLARK: but as there is a necessary sameness in the arguments on this question, and as they have already been detailed in so many different forms, it seems needless to repeat them over again so frequently. He said that when this tax came to be levied, every farmer would say, every man in America would say, "We shall have nothing to do with this business. Why don't you indemnify British depredations out of the British property that is within your grasp?" He had heard that Congress ought to decide an abstract proposition, viz: that this Government was, in any event, bound to pay the recent losses of its merchants by sea; and then proceed to assign funds for the payment. He thought that before Congress undertook any such engagement, they ought at least to be possessed of the money requisite to discharge it. He hoped that the House would never proceed to a vote in support of any abstract axiom, especially where taxes and public money were concerned, till they had carefully digested the collateral circumstances. Mr. DEXTER spoke against the amendment. He said, that very strong reasons existed both for taking into consideration a proposition for indemnity to the sufferers, and also against connecting it with sequestration or any other subject. Each ought to stand or fall on its own merits. The sufferers were numerous, and deserving citizens; they had waited a long time, and had a right to know, before the close of the session, what protection they were to expect from the Government of their own country. Sequestration, without a change of political circumstances, would never pass both Houses of the Legislature; to connect them, then, would be to deny relief, without even examining the principles on which they claim it. He said, British debts had been called the only proper and natural funds: in his opinion, they would be no fund at all, even if sequestration could be adopted. The debts would never be collected; and not only so, but sequestration would be the beginning of hostilities, and war must ensue; this, at the same moment, would prevent all hope of obtaining justice from Britain, and also discharge our own Government from every obligation to indemnify. Mr. D. said he would state what, in his opinion, was the proper and natural fund--the money to be demanded of Britain by our Envoy Extraordinary. Should this fail, the Government of America would either pay the sufferers, or grant them letters of marque and reprisal. This, he said, is the constant course of nations, and this the sufferers have a right to demand, as a counterpart of their allegiance. Mr. D. said, it had been objected that the British Government would be encouraged by it to refuse a recompense. This, if true, would be a serious objection, for he had always viewed negotiation as affording the only probable chance for indemnity to the sufferers. If a recompense be refused by Britain, war will be the consequence. The objection, however, he thought, would be entirely removed, by attending to the resolution itself. It is not, he said, a provision for taking the debt on ourselves, but merely to _guarantee_ a recompense to the sufferers. The very word itself implies that the Government of America is not the principal debtor, but is to compel another to make indemnity, or become the debtor. Mr. D. closed with saying that he had attended only to the reasoning of the gentlemen, and not to their personalities. It was not his practice to leave the question, to impute to others motives either corrupt or paltry: if they chose to glean imaginary laurels on this ground, he was not anxious to share them; they could best judge whether, in this way, they were likely to increase their reputation or benefit the public. Messrs. AMES, MURRAY, SMITH, (of South Carolina,) and HILLHOUSE, also spoke against the amendment, and said the merits of neither proposition were now before the House, but only the mode in which the subject should be considered; that they were in themselves separate and independent, and ought to have a separate and independent consideration; they were questions of very great national concern, and that blending them together would give an undue bias, and neither would be fairly and impartially decided. It was doubtful whether the resolution for sequestration ever ought to be adopted, and that to connect the two subjects, would be to hang a millstone about the necks of the sufferers; that, as they were a numerous and very meritorious class of citizens, their claim merited a candid and full examination, unembarrassed with any other matter. A warm dispute arose about the form in which the question on this resolution should be taken. The point actually contested seemed to be, whether the resolution was to be referred to the committee on Mr. DAYTON'S motion for the sequestration of British property, or to a separate committee, which was insisted on by the mover, Mr. GOODHUE. A division took place upon the question of agreeing to Mr. DAYTON's amendment, to add, after the words "be referred to a Committee of the Whole," the following words, viz: "to whom were referred the resolutions for sequestering the British debts;" and the yeas and nays being called for, were taken--yeas 57, nays 31, as follows: YEAS.--Theodorus Bailey, Abraham Baldwin, John Beatty, Thomas Blount, Elias Boudinot, Thomas P. Carnes, Gabriel Christie, Thomas Claiborne, Abraham Clark, Isaac Coles, William J. Dawson, Jonathan Dayton, Henry Dearborn, George Dent, William Findlay, William B. Giles, James Gillespie, Alexander Gillon, Christopher Greenup, Andrew Gregg, Samuel Griffin, William B. Grove, George Hancock, John Heath, Daniel Heister, William Hindman, John Hunter, Matthew Locke, William Lyman, Nathaniel Macon, James Madison, Joseph McDowell, Alexander Mebane, William Montgomery, Andrew Moore, Peter Muhlenberg, Joseph Neville, Anthony New, John Nicholas, Nathaniel Niles, Alexander D. Orr, John Page, Josiah Parker, Andrew Pickens, Francis Preston, Robert Rutherford, Thomas Scott, John S. Sherburne, John Smilie, Israel Smith, Silas Talbot, Philip Van Cortlandt, Abraham Venable, Francis Walker, Benjamin Williams, Richard Winn, and Joseph Winston. NAYS.--Fisher Ames, James Armstrong, Benjamin Bourne, David Cobb, Peleg Coffin, Joshua Coit, Samuel Dexter, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, James Gordon, James Hillhouse, Henry Latimer, Amasa Learned, Richard Bland Lee, Francis Malbone, William Vans Murray, Theodore Sedgwick, Jeremiah Smith, William Smith, Zephaniah Swift, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Peleg Wadsworth, and John Watts. And then the main question being put, that the House do agree to the said motion for commitment, as amended, it was resolved in the affirmative. FRIDAY, May 16. _Revenue Bill: Salt and Coal Tax._ The House resolved itself into a Committee of the whole House on the bill laying additional duties on goods, wares, and merchandise imported into the United States, and on the tonnage of ships or vessels. The three cents per bushel of additional duty on salt was objected to by Mr. FINDLAY, as oppressive to his constituents. Mr. AMES was convinced, that this was much better than a land-tax. It was beyond all comparison, more cheap, more certain, and more equal in the collection than a land-tax. He would rather tax salt, at even half a dollar per bushel, than agree to a land-tax. Mr. CLARK would be very glad to hear the gentleman from Pennsylvania (Mr. FINDLAY) specify, upon what subject he was willing to pay a tax? It was beyond the comprehension of Mr. C., for what sort of a tax the gentleman was prepared to vote, or, indeed, what sort of taxes the Western settlers of Pennsylvania pay. We lay a duty on sugar. They make sugar for themselves. We lay a tax on tobacco. They are to manufacture for themselves. We lay an excise on distilleries. They refuse to pay this tax, and, in fact, they do not pay it. We tax wines; but we are told that these people are poor. They cannot, therefore, afford to drink wine, on which the duty is very heavy, for that duty is paid only by the rich. We tax the importation of foreign fineries, such as silk, but silk also is not the dress of poor people, so that here again the constituents of the gentleman get off. We are going to tax the importation of foreign coals, but they have plenty of their own, and so far from paying a tax on them, are cutting a canal to bring them down to Philadelphia; which will drive out the importation of foreign coals, and so destroy the tax altogether. Under these circumstances, Mr. C. was solicitous to learn what taxes the back settlers paid, for, as far as he could understand, they paid none; and their Representative would do well to inform the House on what they were willing to pay a tax. Was Government to be burdened with them, and derive no compensation? Was it a sufficient reason for exempting a district from public burdens to say that the people are poor? Are taxes to be paid exclusively by the rich? Mr. RUTHERFORD objected to this duty on salt. It was often to be carried from one to three hundred and fifty miles inland, and in fact, it frequently costs twenty shillings per bushel. No tax could be so universally unpopular as this would be. Mr. FINDLAY replied to Mr. CLARK. As to sugar, though some of his neighbors made theirs, Mr. F. bought his own in Philadelphia. As to silks and other female fineries, his constituents did just like other people. They spent, in that way, as much as they could possibly afford, and had among them ladies very well dressed. As to other matters, his constituents purchased their manufactures in Philadelphia, and paid for them as other people did. Salt, he said, was known to be necessary for cattle in the back country. He was strongly against the tax. Mr. GILLON likewise opposed the tax on salt. It had been proposed, in the State which he represented, but never could be carried through. On a division, it was rejected--ayes 32, noes 47. A motion was made for striking out twenty-five cents per ton of additional tonnage, on foreign vessels, in order to insert fifty. It was passed in the negative--ayes 39, noes 41. After going through the bill, the committee rose, and the House went into consideration of the amendments made in Committee of the Whole. On the subject of an additional duty on coal imported, Mr. GILES said, that the rise was very moderate, from four and a half to six cents per ton. A Boston company was about, as he understood, to embark in this business, but waited to see the steps taken by Congress. There was as much coal in Virginia as would serve all America and Europe besides. Mr. WADSWORTH would have the additional duty restricted to all coal imported in foreign vessels. Mr. HEISTER wanted to know, whether the price of coal had not been already doubled within these few years. He was informed that coal imported had of late risen from six dollars per ton, to twelve dollars and a half. Mr. FITZSIMONS said, that a few years would put an end to importation altogether. He defended the tax. He saw no danger to any of the manufactures in America, that make use of foreign coal arising from this tax. Nothing but a capital was wanting to make America supply herself. Mr. SHERBURNE recommended the amendment of Mr. WADSWORTH, as to the restriction of this duty to foreign bottoms. Mr. MADISON worded this amendment, "on all vessels not belonging to citizens of the United States;" because foreign bottoms might belong to people of this country. He was not solicitous about the fate of the motion. The amendment was lost; but the original motion was carried. SATURDAY, May 17. _Tobacco and Sugar Duties._ The bill laying a duty on tobacco manufactured, and sugar refined, in the United States, was read a second time. Mr. LYMAN opposed its passing to a third reading, on the ground that those articles deserve yet the fostering care of Government, and are entirely incapable of bearing such a burden; for, even now, notwithstanding the present protecting duties, they, especially the article of manufactured snuff, are yet imported. He also objected to the bill from the exceptionable nature of an excise. Some objections were made to the propriety of opposing the bill in its present stage. Mr. CLARK thought the bill unnecessary, because the two and a half per cent. of additional impost would supply all the wants of the public. He thought that the bill had an _immoral_ tendency, because it tempted men to perjure themselves. It was oppressive, as making every man's house liable to be searched at midnight. He thought it also would produce an expensive mode of collection. He, therefore, objected against it, as unnecessary, of an immoral tendency, as oppressive, and expensive. He had always voted against it, and he always should persist in voting against it. Mr. AMES pressed the necessity for money, and the want of other funds to discharge the services of the current year. He said, that to impose taxes was an unpopular office, and exposed members to dislike. Perhaps they might be _persecuted_; but it was still requisite for members to perform their duty. He had a great repugnance to the excise as established in Europe; but in America it was of a different nature. To reject the present bill would place the finances of this country in a very alarming point of view. If this bill was thrown out, we might bid farewell to firm and determined measures. We must go home when we are to lay a tax, and ask the people whether or not they like it. Mr. NICHOLAS went into the old arguments against excise. He was severe on the general character of excise officers, whom he represented as the dregs of society. Very few persons in America would accept of such an office at all, and those who accepted of it, were by no means of a respectable rank in life. Mr. FITZSIMONS.--There are as good men employed in the collection of the revenue as any others in the country, not excepting the gentleman himself; and men who are as well liked by their neighbors. Mr. W. SMITH.--The rejection of the bill at this time will not decide the principle of excise; if rejected, it will not be owing to the arguments against it, but to the absence of a great many members, who never dreamed that the question would have been brought on to-day, and who do not even know that the bill has been so much as reported. The practice is uncandid, and unprecedented, to endeavor to reject a bill at this stage, before it has been printed, and the members know its contents. Was it fair and consistent, in a thin House, to reject the bill without any further consideration than one reading, for the sake of form, a reading, to which _nobody had listened_? How was this to settle the principle of excise? Was it not already settled in the constitution and by existing laws? But a new argument had been this day resorted to; there was a surplus of revenue in the Treasury, without new taxes, and this had been discovered since this tax had been agreed to. If this argument was founded in fact, it would put an end to all debates on all the new taxes; but what was this notable discovery? an additional two and a half per cent. on impost. This was no discovery which could change the question, for it was agreed to before the duty on manufactured tobacco and sugar; and the latter had been therefore established by the House, with a knowledge that the former was laid. He asked if, in the present situation of the country, all dependence was to be placed on commerce? How could certain members reconcile this proceeding with their former votes and language? But the other day we were to prohibit all commercial intercourse, to sequester debts, and to prepare for war. Now, we are to derive the whole of the revenues from trade; the same gentlemen who urged these measures were now defeating every kind of revenue which might be productive. There was something so extraordinary in this, that he could not account for it. It was said, that the Committee of Ways and Means ought not to have reckoned on a defalcation, in the impost of $1,300,000, but the gentlemen assign no reasons for their assertion, whereas the committee founded their report on the best information. Admit, however, that it is doubtful; was it safe, in the present critical state of the country, to place all dependence on _external_ resources, which were every moment in danger of being cut off? Did not duty require a provision for the defence and safety of the United States by _internal_ resources? This was certain, that the extra appropriations of this year exceeded those of any former year by two millions and a half of dollars. Where was the money to come from? The members in opposition to this tax, voted out land and salt; they endeavored to vote out stamps and carriages. They will agree to nothing but impost. Are the merchants to be saddled with the whole burden, because, like friends to order and tranquillity, they have not called _town-meetings, or published inflammatory resolves_? It is said, war is no longer expected; this country is willing to submit to every thing. Was this insinuation pointed at Congress or the Executive? It was unfounded in either case; because negotiation was tried, it did not follow that either the one or the other branch of the Government were disposed tamely to submit to injury; for himself, he was ready to aver that, if proper reparation were not obtained, he should be for war. The balance now being trembling on its beam, and no one could say whether it would settle for peace or war, he was for preparing seriously for the latter, while he strove to preserve the former. Pecuniary exertions were indispensable; it might be a pleasant thing to oppose taxes, and the advocates of new taxes might be obnoxious, but this would not draw him from his duty. The increase of excise officers had been mentioned; the bill did not propose a single one; the bad character of the excise officers had been mentioned; the supervisors were among the most respectable men in the United States, and the inspectors were as virtuous as the officers of the customs. The embarrassments, the taking of oaths, &c., were not more applicable to manufacturers than to merchants and captains, who could not enter, or unlade, or clear out, without difficulties, embarrassments, and oaths; but this was disregarded, as if they had less feeling than other people. As to the injury to morals, the necessary oaths required by all revenue laws were not injurious to the morals of the honest, and those who swore to the truth; and, as to those who were disposed to commit frauds and perjuries, no injury could be done to the morals of those who had none. Mr. S. wished that less had been said in the way of general reflection on the collectors of the revenue. Some years ago, a member of that House, when they were at New York, attacked the tide-waiters. There happened to be a tide-waiter in the gallery, who wrote, next day, a pretty smart letter to the member who had spoken so freely of his profession. Mr. NILES hoped that no gentleman would say, that he wished to see the Treasury empty. He would, for his own part, be glad to know whether there was a deficiency or not, clearly stated. He did not see so much as some others did, in the objections to an excise. It was _called_ an excise, it was true, but we do not know yet the way in which it is to be levied; so, we cannot tell whether there will be any hardship in it or not. He went over some of the statements of different gentlemen, but on the whole, there was so much contradiction in the assertions of different members, that Mr. N. knew not what to make of them. Mr. BOUDINOT moved that the House adjourn, which they did immediately, at three o'clock. MONDAY, May 19. _Impressment of American Seamen._ Mr. MURRAY moved, that a committee be appointed to report a bill to provide such regulations as may enable American seamen to obtain and carry evidence of citizenship, for the purpose of protecting them from impressment into foreign service. He said, that it was a reasonable expectation that the subject of this resolution should be seriously attended to, at any time; but there were the most urgent reasons for an attention to the situation of our fellow-citizens of this description at the present period. That the evil of impressment into foreign service existed, no gentleman could doubt, and it was equally doubtless, that it was the duty of Congress, as far as they could, to provide a remedy for the evil. A few years since, when Britain armed her navy against Spain, on the Nootka-Sound question, it had been the fate of several hundreds of the American seamen to be impressed into a service which they abhorred. For a proof of this fact, he would recall the remembrance of the House to the claim made by Mr. Cutting for repayment of money actually expended by him, in the liberation of seamen in this humiliating situation. Congress repaid Mr. Cutting two thousand dollars. That they had thus attended to this claim was proof that the fact complained of existed. The evil arose, not more from the extreme insolence of disposition of the pressgangs, than from a real difficulty of discriminating American citizens from British subjects. The difficulty was in similarity of language, dress, and manners; and from the deficiency of evidence of citizenship, which, in a foreign port, could not always be obtained. For, though the Lords of the Admiralty of England had laid down certain rules, in the case that he had mentioned, the rules laid down had exacted so rigid and pointed an oath, from personal knowledge, that they scarcely could, in any case, be complied with. A captain might, in many instances, _believe_ his sailor to be an American, and yet not think himself warranted in making oath to this fact. The object of his resolution was, that seamen, who are American citizens, might all pursue a uniform line of evidence in proof of citizenship, and that, by an entry of such evidence solemnly obtained in the clearances or other authentic papers of the ship, the same weight and authority should be given to their part of a ship's papers as were, in all cases, given to all sea letters and other papers. He believed that, if the subject went to a select committee, a particular regulation on this subject might be digested, which would, in many cases, if not in all, afford such good evidence of citizenship, as would save American seamen from the injustice and cruelty that many, he believed, now actually suffered under; for he had heard that a number of them had been impressed in the West Indies on board of the British fleet. He was not so sanguine as to imagine, that any law could give full protection to our seamen; for he was convinced that, in order to give complete protection, certain rules of evidence must first be recognized, by convention between this country and Britain, stipulating the extent of certain political principles relative to alienage and allegiance. Till, however, that is done, he thought it the duty of Congress, and particularly at this disturbed period, to afford every aid in its power to this class of citizens. To bring the subject before the House, he had moved the resolution, which he gave notice that he would call up to-morrow. _Tobacco and Sugar Duties._ The House then resumed the consideration of the bill for laying a duty on manufactured tobacco and refined sugar, which had been debated and postponed on Saturday. Mr. GOODHUE wished for a delay. He had seen a gentleman from Pennsylvania, last night, whom he did not now see in his place in the House, and who was making out an estimate, whether the money proposed to be raised by these taxes would be wanted or not. If they could really do without the money, it would be better to reject the bill. Mr. SHERBURNE thought that the question might be delayed, till it was seen whether the sums to be produced by this bill, would be actually required or not. Mr. DAYTON believed that the money was wanted. He would therefore vote for the bill. It was incumbent on gentlemen who objected to the bill, to show that the money would not be wanted. Mr. SMILIE and Mr. LEE rose at the same time. The SPEAKER observed, that Mr. SMILIE had risen first. Mr. LEE said, that the gentleman from Pennsylvania had already spoken twice on this subject and he _insisted for order_. [Mr. L. referred to the proceedings of Saturday, for Mr. SMILIE had not spoke any before, this day.] Our time, said Mr. L., is too precious to be wasted in talking, when every gentleman is competent to give his vote already. I call for the question. His opinion was, that the money was not yet wanted; and that it was being too provident to vote for taxes, before they were required by necessity. Mr. W. SMITH contended, that there would be a very considerable deficiency. He asked, who would lend us money, if there was such a difficulty in establishing funds to pay the interest of it? Mr. WADSWORTH hoped that the bill would not be altogether thrown aside. There was part of it that he approved, and part of it that he did not perfectly approve. In discussing this question, much stress has been laid upon the two and a half per cent. of additional impost on importations, as if _that_ would be a fund for the increase of revenue, and supersede the necessity for some other taxes. Mr. W. assigned his reasons for believing that this supposition was perfectly chimerical. Within the last six months, American vessels and property had been captured by the British privateers in the West Indies, to the extent of _one million of dollars_. This will make the importations less, by at least five hundred thousand dollars, and, of consequence, destroy a great part both of the old and new impost. Property to the extent of one-fourth of a million of dollars, perhaps, had likewise been seized by the Spaniards, and other nations had most likely taken as much more. The total loss to American commerce could not, therefore, be less than _fifteen hundred thousand dollars_. The imposts on importations must, therefore, be very much reduced; as from Britain, for example, there would not, in his judgment, be one-fourth part of the imports, from this time to the first of December, that had been formerly. And no man could imagine that, at the most, they would exceed one-half of their former amount. The British merchants would be afraid, on account of the matters that had been proposed. These people, they would say, have been laying embargoes, and speaking of sequestration, and indemnification. We must be cautious. Mr. W. added, that it was possible enough, that America might, in the fall, be at war with Britain; and then impost and importation will fall together. These were his motives for believing that the two and a half per cent. would be of no great consequence. It had been said, that the ten per cent. would produce a large augmentation. He did not, from the diminished quantity of imports, believe that it would be _so much_, by twenty or thirty per cent. as the old seven and half duty had produced. Mr. W. next reverted to the bill before the House. One part of it (the duty on snuff) he could not agree to. The other part, refined sugars, would fall on those who could afford to pay it, and after all that had been said against this bill, he was firmly convinced, that, so far from injuring the manufacture, it would thrive the better for this tax. He, on this account, hoped that the bill would pass, in spite of his objection to some things that might, perhaps, be corrected. He then replied to the complaints of some gentlemen, who, as an excuse for repeating over and over again their former arguments and opinions, observed, that they had not received an answer. It was very likely that they might think so, and he, for his part, did not think that he had been _answered_. This kind of reasoning had no end. Perhaps it was impossible for him, or gentlemen of his sentiments, to answer the opposite side of the question. And, again, perhaps the gentlemen of the opposite opinion could not answer them. The matter must rest there, and the question come to a vote. Mr. FITZSIMONS was convinced that there was a deficiency, and a great one. But he was not fully prepared to speak upon the subject; though he was sure of the fact. He did not wish to hurry the subject. The bill might be printed. Mr. NICHOLAS was sorry to have learned that he had, on Saturday, made a general reflection on a profession of men. With some gentlemen, in the line referred to, he had as strict a friendship as with any persons on earth. He said, that ten lines of figures, which he had in his hand, would satisfy the House, that the taxes in the present bill are not wanted. He then began a detail of considerable length, to which Mr. FITZSIMONS replied. Mr. TRACY.--One gentleman says that we have a surplus of three millions; another, that we have a surplus of one million. It is very strange for gentlemen to be coming forward in this stage of the debate, and to say that money is not wanted, after the want of money has been so frequently advanced, and admitted, in the House. It is unaccountable, that there should be a contradiction on a point of this nature. He next went into a long series of calculations. He objected to the estimate of the impost of 1793, that was reckoned upon for the current expenses of 1794. A great part of this impost was still due, by bonds. The persons who had given these bonds were, many of them, broke by the British depredations in the West Indies; and, in fact, a large proportion of that impost never would be paid in to the collectors of the revenue. He was displeased with the way in which some gentlemen had spoken of the national debt. He had no share, for his own part, as a creditor; but a part of his property must go to the discharge of it, and he should cheerfully pay it. He did not agree with those gentlemen who, in the event of a peace, would not wish to replenish the Treasury. It was curious, that the House had now been assembled for nearly six months; and that their chief object had been to discover ways and means for raising public money. A bill for that purpose had been brought in; and just when it was on the point of being passed, we make a sudden and wonderful discovery, that no money is wanted; but that we have an overplus of three millions of dollars. The thing cannot be. The calculations are not founded on truth. He did not believe that members understood the bill. He could demonstrate that there was occasion for a supply of money. Mr. MADISON thought that the arguments on each side of this question might be reduced to a narrow compass. If peace continues, he supposed it likely that the revenue would not fall so far short, as the committee had apprehended. But if there was a war, the expense would much exceed any thing yet thought of. He was for laying aside the subject at present, and if a rupture with England should ensue, he would then recommend, at once, a _direct_ tax, and that these excise acts should be entirely thrown aside. If there was no war, he believed that no new taxes were required; let the matter therefore die, as to the present. He disapproved the principle of the tax, and should, on that account, think himself justified in voting against it. Mr. GILLON rose, and replied to several gentlemen, who were for the excise on tobacco, snuff, and loaf and lump sugar; and observed, that he had partly obtained his object, by drawing gentlemen forward, with the calculations which had been kept back. But as the gentlemen, after having, by their own account, been three months on this subject, avowed that his request of detailing those large sums came rather unexpected, and that they wished to have more time to make their calculations, he had not much objection to let this bill have a second reading; but he hoped they would be accurate, in proportion to the time taken to preface them. As to the idea of our general taxes not taking place until the first of next March, that had no weight with him; because he knew the Civil List for the year was not all then due, nor would all the sum for military and naval preparations be to be paid down, the day the ore was dug for the guns, nor on the day that the first tree was cut to begin the frigates. He agreed that a deficiency might arise on the supplies now due, for the terms which the gentlemen had assigned by the plunder of our merchants' property. He was happy to find that gentlemen had not lost sight of the serious applications they had received from that respectable and utile body (the merchants) for redress; and he should take care to remind gentlemen of their own observations, when the requests of the merchants were brought forward, as he was clear something must be done, either by restitution on the debts to be sequestered, a loan for them under the guarantee of the Union, or by prolonging the time to a remote period, of paying the duties that they owed. He was accused of making _wonderful discoveries_, of making calculations not founded in truth. The latter he denied, for, if there is any untruth in them, it cannot be on his side, but must have arisen from the committee; therefore, to them be the untruth applicable, as he did not make use of a figure but what they placed in their report. He still retained his opinion, that surplus revenue was dangerous in the hands of any Government. What did they want to do with it? He hoped nothing else but to buy up the national funded debt as cheap as they could, which act was pardonable, only by the intent, he presumed, they must feel of at last doing justice to our late armies. His meaning was, that the profits arising from this speculation should be kept as a sacred deposit out at interest, and that interest to be employed towards paying off the interest due on the principal losses which our brave officers and soldiers had met with, by being obliged to part with their shares of pay at a very inferior value. This you may better pay to patriotism and misfortune than pay to speculators. Mr. TRACY.--If I have said what is alleged, the language is too indecorous to be used by me to any gentleman on this floor. If any thing of that kind has escaped from me, I am ready to ask the gentleman's pardon. I have the highest respect for his character. And the question was then put, Shall this bill be rejected? It passed in the negative--yeas 31, nays 56, as follows: YEAS.--Thomas Blount, Thomas P. Carnes, Gabriel Christie, Thomas Claiborne, Abraham Clark, Isaac Coles, William Findlay, William B. Giles, Alexander Gillon, Andrew Gregg, Daniel Heister, William Lyman, Nathaniel Macon, James Madison, Joseph McDowell, William Montgomery, Andrew Moore, Peter Muhlenberg, Joseph Neville, Anthony New, John Nicholas, Josiah Parker, Francis Preston, Robert Rutherford, Thomas Scott, John Smilie, Thomas Tredwell, Abraham Venable, Francis Walker, Richard Winn, and Joseph Winston. NAYS.--Fisher Ames, James Armstrong, Theodorus Bailey, Abraham Baldwin, John Beatty, Elias Boudinot, Benjamin Bourne, Lambert Cadwalader, David Cobb, Peleg Coffin, Joshua Coit, William J. Dawson, Jonathan Dayton, Henry Dearborn, George Dent, Samuel Dexter, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, James Gillespie, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, James Gordon, Samuel Griffin, William Barry Grove, Thomas Hartley, James Hillhouse, William Hindman, John Hunter, Henry Latimer, Amasa Learned, Richard Bland Lee, Matthew Locke, Francis Malbone, Alexander Mebane, William Vans Murray, Alexander D. Orr, Andrew Pickens, Theodore Sedgwick, John S. Sherburne, Jeremiah Smith, Israel Smith, William Smith, Zephaniah Swift, Silas Talbot, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Peleg Wadsworth, Jeremiah Wadsworth, Artemas Ward, John Watts, and Benjamin Williams. The said bill was then read the second time, and ordered to be committed to a Committee of the whole House on Wednesday next. _Augmentation of the Army._ The House resolved itself into a Committee of the whole House on the bill to augment the military force of the United States; and after some time spent therein, the Chairman reported that the committee had had the said bill under consideration, and made amendment thereto; which was read, as follows: Strike out the first section of the bill, in the words following, to wit: "_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That there shall be raised, for the term of ---- years, or during a war which may break out between the United States and any European Power, an additional military force, consisting of twenty-five thousand non-commissioned officers, privates, and musicians, together with a proper proportion of commissioned officers of all grades, respectively, according to the present Military Establishment of the United States:" And on the question that the House do agree with the Committee of the whole House in the said amendment, it was resolved in the affirmative. A motion was then made and seconded to amend the said bill, by inserting, in lieu of the section stricken out, the following section, to wit: "_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That there shall be raised, upon the terms and conditions hereafter mentioned, an additional provisional military force, to consist of ---- non-commissioned officers, privates, and musicians, together with a proper proportion of commissioned officers." It passed in the negative--yeas 30, nays 50, as follows: YEAS.--Fisher Ames, John Beatty, Benjamin Bourne, David Cobb, Peleg Coffin, Jonathan Dayton, George Dent, Samuel Dexter, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, Benjamin Goodhue, James Gordon, James Hillhouse, William Hindman, Amasa Learned, Richard Bland Lee, Francis Malbone, William Vans Murray, Theodore Sedgwick, William Smith, Zephaniah Swift, Silas Talbot, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Jeremiah Wadsworth, and John Watts. NAYS.--James Armstrong, Theodorus Bailey, Abraham Baldwin, Thomas Blount, Thomas P. Carnes, Gabriel Christie, Thomas Claiborne, Abraham Clark, Joshua Coit, Isaac Coles, William J. Dawson, Henry Dearborn, William Findlay, William B. Giles, James Gillespie, Alexander Gillon, Nicholas Gilman, Henry Glenn, Christopher Greenup, Andrew Gregg, William Barry Grove, Daniel Heister, John Hunter, Matthew Locke, William Lyman, Nathaniel Macon, James Madison, Joseph McDowell, Alexander Mebane, William Montgomery, Andrew Moore, Peter Muhlenberg, Joseph Neville, Anthony New, John Nicholas, Alexander D. Orr, Josiah Parker, Francis Preston, Robert Rutherford, Thomas Scott, John S. Sherburne, John Smilie, Israel Smith, Thomas Tredwell, Philip Van Cortlandt, Abraham Venable, Francis Walker, Richard Winn, Benjamin Williams, and Joseph Winston. And then the question being put that the said bill, as amended, be engrossed and read the third time, it passed in the negative. And so the said bill was rejected. FRIDAY, May 23. _Tobacco and Sugar Duties._ The House went into a committee, Mr. TRUMBULL in the chair, on the bill for an excise on tobacco, snuff, and refined sugar. In the first section, it was agreed to strike out the words, "tobacco and." This proposed that the word tobacco be struck out in every subsequent part of the bill, so that the duty be confined to the manufacture of snuff. Mr. MUHLENBERG (The SPEAKER) moved to strikeout the second section, "that from and after the ---- day of ---- there be levied, collected, and paid, upon all sugar which shall be refined within the United States, a duty of two cents per pound." He would not trouble the committee with any comments on the excise, enough having already been said on that subject; although he could not forbear mentioning, that in England, where almost every thing was subject to an excise, and where the Minister is ever on the watch to discover new articles for that purpose, loaf sugar had never yet been taxed, the Committee on Ways and Means had all the credit of the seasonable discovery. The reason for not attempting an excise on this article was obvious, because the manufacture employed a greater quantity of shipping than any other, they therefore rather wished to encourage than to depress it; the former of which they effectually do, by allowing a generous drawback on exportation of refined sugar, for which the different ports of the Continent afford them a constant and ready market. The case was widely different here. The manufacture is yet in its infant state--it has to contend with the old established ones in Europe, who have larger capitals and can afford longer credits, whereas we have not only no market to export it to, but even now already, can annually make a quantity more than sufficient for the consumption of the United States. It is true, it appears from the last returns, that upwards of 200,000 lbs. of refined sugars were imported last year, which is about the same quantity which two houses might furnish in one year, but it is to be observed, that owing to the high price of raw sugars, some establishments were not worked at all, whilst others did not work above eight or nine months in the year, and I will here, said Mr. M., venture to assert, that if this duty of two cents actually takes place, some of those who are now engaged in this difficult and expensive business will abandon it and turn their capitals into other channels. I do not stand alone in this opinion; others, of more experience, join me, and it is founded on the following incontrovertible facts. Raw sugars have for several years past been so high, that refined sugars naturally bore an equally high price. This has already lessened the consumption, to a considerable degree, in the United States, and from the present prospect before us, when the French islands are in the hands of the British, the probability is, that they will rather be higher than lower; and if the two cents be added to the present high price of refined sugars, the consumption will still be lessened in the same proportion as the price of the article increases. This observation is founded on facts, which every person concerned in the business has felt, and daily experiences; nay, it can be proved, however strange it may appear, that a less quantity of refined sugar is consumed at present in the United States, than a year or two before the Revolution. Again, owing to the high price of refined sugars, and which must be still higher when this duty takes place, many even of our opulent families have, in a great degree, abandoned the use of it, and substituted the white Havana, or the white East India sugar. I well remember a remarkable instance of this kind which took place not many months ago in this city. A gentleman having imported a considerable quantity of white East India sugar, sold it to the refiners of this place. Before the sale was concluded, he reserved a quantity for himself and an opulent friend of his. The consequence was that neither himself nor his friend used half the quantity of refined sugar they had used the year before. Permit me to add another circumstance. Sugars are higher at present, and from a variety of circumstances must continue to be higher here than in England, and although an additional duty on imported loaf and lump sugar may take place, unless it exceeds what I have yet heard mentioned, they will be able to undersell the manufacturers here, and this from the single circumstance of their being allowed a drawback of 26_s._ sterling per cwt., for if even a drawback of the same sum was allowed us here, which is not to be expected, it cannot operate, because we have no market for this article. In the West Indies, it is well known to be contraband, and to transport it to Europe, would be carrying water into the ocean, and even then it could not be accomplished on as low terms as the Europeans can afford to do it. One fact more, equally incontrovertible, suffer me to add. By the additional duty on coal, which I am far from disapproving, because I wish to encourage the consumption of our home productions, you have, in fact, laid an additional tax on sugar. Every work of this kind consumes annually from 2,000 to 4,000 bushels. This article was heretofore at the rate of eleven pence or one shilling per bushel; owing to the duty on imported coal, it has now risen to 2_s._ to 2_s._ 4_d._ This naturally enhances the price of the article made in this manufacture, which is already burdened to a considerable degree with taxes or duties. Thus, there is a duty on the raw material, a duty on the paper they use, a duty on the twine, a duty on the coal, and, to crown all, a duty is intended on the article produced in this devoted manufacture. If it is thus my friend from Connecticut means to do us good, or if this is the decided encouragement and protection my colleague means to yield us, it is such a one as I am sure the manufacturer will not thank him for. Sir, I could add that this bill partakes strongly of the nature of a sumptuary law; that in case of a war it will not produce you any revenue, because the supplies of the raw material are too irregular, and no other but imported sugar is refined, which already pays a duty; and that by this duty you not only lessen the consumption, but also increase the number of those who cannot pay for it; but I forbear to trespass any longer on the patience of the committee on this subject. But, Mr. Chairman, we want money to build our frigates and arsenals, to fortify our ports and harbors, and to release our unfortunate brethren in captivity. We want revenues. If this really be the intention of the committee, and not merely to establish the principle of excise on home manufactures, no one will join more cheerfully in such measures as shall appear most prudent and most likely to obtain the object, and which, in my opinion, will neither injure the commerce of this country, nor in an equal degree the manufactures, nor indeed the poorer sort of the community who consume the article of sugar. By the last returns which I could lay my hands on, it appears that there are annually imported into the United States upwards of twenty-five millions of pounds of sugar, and from the same returns it appears that about four or four and a half millions are exported, which are allowed a drawback of the duty on exportation; thus then there are upwards of twenty millions of pounds annually consumed in the United States. You have, in the late impost bill, imposed an additional duty of one cent per pound on coffee; half that sum additional duty on raw sugar will yield you upwards of 100,000 dollars. This then will at once yield you the sum which the committee expected from an excise both on sugar and manufactured tobacco, and will neither injure the merchant, nor in an equal degree the manufacturer, nor indeed the poor; the latter, and in my opinion none but the idle can be so, as well as many others, have long since substituted molasses for all the purposes for which they heretofore used sugar; besides which the American sugar is daily getting more into use, and bids fair to become general, at least at and near the frontiers. When, therefore, it is considered that this manufacture is yet in its infancy in the United States; that it has to contend with the old established ones of Europe; that there is no excise on this article in England; that this manufacture employs a great quantity of tonnage; that raw sugars are high here, and comparatively low in Europe; that there is a drawback in England, which operates as a bounty, and which from local situations cannot operate, if even granted, with the same advantage here; when it is reduced to a certainty that the duty will operate injuriously on the manufactures here; and when it appears that double the sum can be raised by a trifling additional duty on raw sugar, without any additional expense or inconvenience, and which will effectually remove the evils complained of, I flatter myself the motion will prevail. Mr. FITZSIMONS objected to the proposal of the SPEAKER, for a tax of half a cent per pound on common sugar imported. The unrefined sugar formed a considerable portion of the subsistence of the poor. Formerly, the price of it was not more than sixpence, (currency,) but it is now twelve pence per pound. The coffee duty was another, to which Mr. F. had felt reluctance, because coffee is an article of universal consumption, and the tax upon it falls where taxes ought not to fall, that is upon the poor; but there is no help for it. He would, if possible, have avoided this tax, for coffee, formerly eleven pence or a shilling per pound, has risen to one shilling and ten pence. Mr. F. said, that we are able to lay a heavy enough tax on imported sugar effectually to protect our own sugar refiners. It had been said that the two cents per pound duty would make it requisite for the refiners to augment their capitals. This he could not believe, because the Executive gives credit to the manufacturers for the payment of the duty. Mr. F. said, that the time was perhaps not distant, when we shall be obliged to seek sugar in the East Indies. Britain has acquired the West Indies, which will increase the difficulties of this country in obtaining it from that part of the world. Mr. MCDOWELL hoped that the section would be struck out. He objected to the principle of the bill. He considered it as highly impolitic to tax the infant manufactures of America. He would rather, if the Public Treasury could afford it, give a premium for the encouragement of our manufactures, to dissolve the dependence of the United States upon Europe. This dependence of ours has repeatedly been urged as a reason why the House ought not to adopt certain commercial regulations and restrictions. Some gentlemen had undertaken to prove that the manufacturers would be benefited by such laws, an assertion which he considered as very extraordinary. The manufacturers themselves understood their business best, and thought quite otherwise. This tax will not only alarm those already engaged, but will prevent other men of enterprise and capital from engaging in manufactures, when they find that the moment their business becomes profitable, they are to be taxed. He could not help remarking upon some observations that fell from his friend, (Mr. BALDWIN, from Georgia,) when this subject was before the committee some days ago. It had been objected that the bill was not well founded, as it established a new principle; and the member (Mr. BALDWIN) replied, that it was not new, as there was already an excise fixed on ardent spirits. He had opposed that law, but since it was passed, he could not object to the present bill. Had the gentleman reflected, he would have seen that there was equal reason for resisting this bill, because it fixed that obnoxious principle more strongly, by giving a further sanction to an American excise. Mr. McD. also considered the tax to be unnecessary. The tax was contemplated on the prospect of a war which has now become less likely, the British having, since the Orders of the 8th of January, relaxed their depredations. Further, the tax was unnecessary, because, it was asserted by several very well informed merchants, that the amount of the impost this year would exceed that of the last. On dividing, the motion for striking out the clause was rejected--ayes 31, nays 45. WEDNESDAY, May 28. _Advance of Money to France._ The House again resolved itself into a Committee of the whole House on the report of the committee to whom was referred the Message of the PRESIDENT OF THE UNITED STATES, of the 18th of March last, relative to an advance of money requested by the Minister of the French Republic. Mr. GILES offered the following motion: "_Resolved_, That the President of the United States be authorized and requested to apply the proceeds of the loan of three millions of florins, lately obtained in Holland, towards the discharge of the debt remaining due to France; or to the protection and defence of the United States, if, in his opinion, the same should be found necessary for that purpose, any appropriation to the contrary notwithstanding." Mr. HILLHOUSE was of opinion that, before any payments in advance should be made to the French Minister, it was proper to secure the indemnification of our own citizens, who had sustained such immense losses by the detention of their vessels in the ports of the Republic, both in Europe and the West Indies. Mr. H. here made a distinction, that if the term stipulated for payment of an instalment to France had actually arrived, he would have made that payment, though they had burnt our ships, and have sought redress in the ordinary way. But when they come forward before the money is due, and make such a requisition, he thought it a fair opportunity to secure the claims of American citizens. Mr. NICHOLAS was in favor of the motion. He felt, as an American, that the cause of this country and of France were inseparably connected; and that giving the money to the Republic was equivalent to expending it in the service of the United States. He reminded the House of the indelible obligations of America to France. That Republic is now reduced to distress, as this country was when supported by the French arms. Every principle of humanity, of honor, of gratitude, and of justice, calls upon us to give that nation the most effectual support in our power. Mr. FITZSIMONS.--The Americans have applied to M. Fauchet, for payment in this country. He has assured them that he cannot give it, but that he will inform the French Government of their application. They are satisfied to wait for the reply to the Minister, which is expected from Europe. Mr. AMES remarked, that, as the three millions of florins had been loaned in Holland for the defence of this country, it would be something worse than imprudence to give it away for any other purpose. The cause of France does not depend on her receiving a million of dollars. She is in a much better situation to give us that sum, than we are to advance it for her. He did not think that, to keep our money to ourselves, and to bestow it upon France, were the same thing, nor did he believe that it would be so considered by the citizens of the United States. He could not approve the motion. Mr. GILLON thought that, as to the claims of American citizens, a complete answer had been given by the member from Pennsylvania. If the merchants themselves are willing to wait for an answer from France, nobody else has any concern with the matter. He rejected the idea of not paying the money to the French until it was due, unless with a restriction in favor of the American claimants. The money due to France had been advanced by her in the time of our utmost distress. It was at present wanted for her own defence. To indulge us, indeed, she had formerly granted a longer time than she was obliged to grant for the repayment. But if necessity compelled her to solicit an abridgment of that indulgence, is it inconsistent with the feelings of honor and generosity, to refuse her such a request? Mr. WADSWORTH was too ill-informed upon this question, to know upon what side he ought to vote. Much had been said about the gratitude due from this country to France. We had been grateful, indeed, since we had suffered them for a long time past to plunder our vessels without making a complaint. He stated that the American property seized in the ports of France amounted to one million of dollars, and that taken by her in the West India Colonies, to four millions of dollars. Much of this property had been paid for in such a way, that the owners did not realize more than twenty-five per cent. of its value. The present application had been made a long time ago, and Mr. W. did not suppose that the French Minister could, at present, be in any want of the money. Since the time when he first sought for it, something had happened which altered the case. The greatest portion of specie in America is now at the command of M. Fauchet. There can be, therefore, no pretence for giving away this million of dollars on the plea of necessity. The Republic herself possesses, if we are to believe common fame, more cash than all the kings in Europe; and, though the story may be very greatly exaggerated, yet make allowance for exaggeration, and still her treasures are very great. No part of her misfortunes can be ascribed to the want of money. Matters so standing, he thought that it was our duty to make a halt, and begin to take some care of the interests of our fellow-citizens. As for gratitude towards the Republic, he felt as much of that sentiment as those who talked more about it than he did. But he had not learned any good reason why this money should be disposed of in this way; and he could not agree to vote so great a sum where he could not see the need. Mr. BOURNE said, that the purposes for which it had been first asked, had been long since accomplished without it. The transportation of the emigrants of St. Domingo to France had been given as a reason for this request, but they were all gone already. Mr. SEDGWICK and Mr. GOODHUE also spoke. The resolution was carried in the committee, and reported to the House, where it was likewise carried; and it was _Ordered_, That a bill or bills be brought in pursuant to the said resolution, and that Mr. MADISON, Mr. BEATTY, and Mr. HEISTER, do prepare and bring in the same. FRIDAY, May 30. _Military Establishment._ The bill sent from the Senate, entitled "An act to increase the Military Force of the United States, and to encourage the recruiting service," was read the first time. Mr. SMILIE objected that there must be some other purpose for these troops than any that had been acknowledged; for he could see none. The principle of the bill was wrong. Mr. GILES said, that the bill ought to be named "A bill authorizing the PRESIDENT _to pass a law_ for raising ten thousand men." In point of principle, it was infinitely worse than the former one, which the House had already rejected, (the one supported by Mr. SEDGWICK.) He hoped that they would not suffer it to go to a second reading. We had made estimates of the expenses of this year, and have been told that the ways and means are not sufficient. Yet, in the face of this, to come upon us all at once with the expense of a standing army of ten thousand men was too hard. He trusted that gentlemen who would vote for a second reading would explain the reasons that could induce them to such a measure. The time spent upon such a bill would be perfectly cast away. He was at a loss to discover against whom these ten thousand men were to be employed. Mr. HILLHOUSE could not, at this moment, decide whether he ought to vote for this bill or not. He would recommend a Committee of the Whole to examine its merits. He should think it ungenerous for any gentleman in that House to call for his vote till it had been fully discussed. Mr. FITZSIMONS.--If we were to debate for a week upon it, I am sure that there cannot be one new idea started. The whole argument lies in so narrow a compass that every member may decide on a first hearing. The question is, whether, on account of the particular state of the country at this time, it is proper to intrust the PRESIDENT with a discretionary power of raising an army of ten thousand men? For my own part, I am as ready to decide just now as I ever can be. Mr. AMES.--If we are to go to war, will it not be a prodigious saving of expense to have all matters ready beforehand? By being prepared two months before the war breaks out, the advantages in economy would be immense, as the price of enlisting men would rise fourfold when it was once known that war was certain. He knew many weak parts in the Union that might be attacked and in danger before a body of militia could be ready for effectual service. He was not qualified for details of this sort; but he knew that Rhode Island, for example, might be taken, and, in a short time, so strongly fortified, that it would be difficult or impossible to retake it. Why were we afraid to intrust the PRESIDENT with the power of raising ten thousand men? Can any body of men to be raised in this country tread down the substantial yeomanry? This is quite a Utopian dread. It is infinitely cheaper to raise and embody an army at leisure, when the storm is seen to be approaching, than all at once, when twenty things must be done at the same time. There is, besides, a material distinction between this bill and the former. The force may be discontinued whenever the Legislature thinks proper; nor is it to be raised at all unless the PRESIDENT sees or thinks it necessary. The principle of the bill is, therefore, much less exceptionable than that of the other. To reject a bill on the first reading is a bad practice. Mr. A. hoped that the House would guard against it, unless where any thing was grossly improper, and depended on a single principle. But he trusted that the House would, in every common case, set their faces against it. Mr. SMILIE controverted every thing said by Mr. AMES. He thought that the measure would involve this country in a very useless expense. Did we intend to rival the military establishments in Europe? The British might be expected to increase their forces in Canada in proportion to those of the United States. Mr. DAYTON followed Mr. SMILIE, and said, that the arguments of the member who spoke last, although intended to make a different impression, had convinced him of the impropriety of rejecting this bill upon its first reading. That gentleman had thought proper to enter into the intrinsic merits at this stage of it, when those who favored its principles could have no opportunity of defending or amending the particular parts of it. He had heard the objects of it grossly misrepresented. It had been asserted that the bill contemplated the increase of our military peace establishment to sixteen thousand men. [Mr. SMILIE interrupted Mr. DAYTON by declaring that he had never said or meant any such thing. But the defence of the Western Territory was to require six thousand men; and these, with the ten thousand to be raised by this bill, would amount, in the whole, to sixteen thousand men.] No such thing (said Mr. D.) was to be found in it, and he called upon gentlemen to show upon what such an assertion was founded. He, for one, was of opinion that the interests and safety of the United States might be materially promoted by our vesting the PRESIDENT with the power to raise these men, if war should break out in the recess of Congress. Who did not believe that such an event was not only possible, but in some degree probable? Who would say that, if war should be forced upon us, this would not be considered as a most valuable provision, because we might have this respectable body of troops engaged, equipped, and prepared to act the moment that hostilities should be declared by the constituted authority? He would address himself to the feelings and interests of the member who spoke last, and those similarly circumstanced. They resided in the interior parts of the country, and hence it was that they did not seem to experience such lively sensations at the approach of danger on the eastern frontiers--the sea. What (he asked) was their situation, and what had they to fear in case of an open rupture with Great Britain? It was easy to foresee that they would be vigorously pressed, not only by those Indians which are at present hostile, and by the regular troops in that quarter, but by all the neighboring nations of savages over whom British threats or bribes could have influence. A part of the Six Nations, too, would probably join the confederacy, and the frontier settlers of Virginia, Pennsylvania, and New York, would certainly be driven in. With such a corps as the one proposed, an early check might be given to their irruptions, and the war be carried to their towns. On the other hand, what would be the consequence, if, after the PRESIDENT perceives a war inevitable, he is not permitted to make the smallest preparation until he can convene Congress? Two months must be lost in convening them, owing to the extreme distances of their residence, all which time would be employed by our enemies in increasing their forces, in strengthening their posts, and establishing new ones, and in invading our country. Let this discretionary power be given to the PRESIDENT, (with whom much greater had repeatedly been lodged, and had never in any instance been improperly exercised,) and the men might be engaged while the members were collecting, and a small army in readiness to act as Congress should by law direct and authorize. No danger could arise from it, because the enlistments of those who might be engaged would be void, unless the Legislature, immediately upon their meeting, should confirm them. It had been said, that our reliance should be upon the militia. He had, Mr. D. said, as high an opinion of militia as any member in that House, for he had witnessed their exertions and importance in the late war; but could it be said that it would be very convenient or agreeable to them, to be drawn a distance from their own homes, to be employed in taking and garrisoning posts, if it should be deemed advisable to direct operations of that kind? He concluded, with wishing that the bill might be allowed to have a second reading, as constructions had been imputed to it which it certainly would not bear. Mr. MADISON did not accede to the principle of the bill. He did not see any such immediate prospect of a war, as could induce the House to violate the constitution. He thought that it was a wise principle in the constitution, to make one branch of Government raise an army, and another conduct it. If the Legislature had the power to conduct an army, they might embody it for that end. On the other hand, if the PRESIDENT was empowered to raise an army, as he is to direct its motions when raised, he might wish to assemble it for the sake of the influence to be acquired by the command. The constitution had wisely guarded against that danger on either side. He could not, in the present case, consent to the breaking down of this barrier of public safety. He saw no necessity for it; nor any violent probability, that this country will be speedily invaded by any force, to which the present military establishment cannot make an adequate resistance. Let us hear from the Minister whom we have just sent to Britain, before we take such abrupt and expensive measures. We shall certainly hear from him, at least, before we are invaded. Now, if we enter into a calculation of the time requisite for his arrival in Britain, for commencing his business, and for sending back an account of what kind of reception he has met with, we shall find that by this period, Congress will have met again; or at least, the interval will be so small as to make it not worth while to embrace any measure of this kind. Upon the whole, he could not venture to give his consent for violating so salutary a principle of the constitution as that upon which this bill encroached. Mr. SEDGWICK differed from Mr. MADISON. He did not think that, in certain contingencies, war was so distant a prospect. Simcoe is going to erect a fort in our territories, and the PRESIDENT has declared that he will repel the attempt. We all know the waste of time and property in the last war, at its commencement, by trying to do the business with militia. The proposal met his approbation, as did the resolution of the PRESIDENT to repel force by force. Mr. FINDLAY spoke against the bill. The question was then stated, to wit: "Shall the said bill be rejected?" and, after debate thereon, the question being taken, it was resolved in the affirmative--yeas 50, nays 32. _Advance of Money to France._ Mr. PARKER then moved that the House take into consideration the bill for the payment of a certain sum of money to the French Republic. The House resolved itself into a committee on this bill, Mr. PARKER in the chair. Several amendments were proposed, and several members spoke. Mr. GILES knew that Mr. Fauchet was anxious for this money, and spoke of it as necessary for his operations. He did not know whether to-day, to-morrow, or at what time in particular; but in fact the money was needed. He had another remark to make. This loan of three millions of florins had come upon all parts of the House alike unexpectedly. Before it was known, we heard of no particular complaints from the Treasury, for want of money to raise the fortifications. But now, when the loan was come, the tone was altered, and there was a loud cry of emptiness in the Treasury. Mr. GILLON said, that gentlemen talked of giving this money, as if we were doing a favor to France. Is this so? We are sending a new ambassador to that country. A very pretty introduction truly he would have at Paris, with our credentials in one hand, and a refusal to pay the debts due to the Republic in the other. We have been in need of her assistance before, and we may want it again. The committee made some amendments; the Chairman reported them, and the bill finally passed the House. FRIDAY, June 5. _Protection of South-western Frontier._ The House proceeded to consider the amendments proposed by the Senate to the bill, entitled "An act for the more effectual protection of the South-western frontier settlers." Mr. GILES expressed the utmost surprise at such a proposal. First, it had been projected to raise a standing army of fifteen thousand men, then twenty-five thousand, then ten thousand; and now, when all these schemes had been put to an end, this regiment of eleven hundred and forty men has appeared. Proteus never assumed a greater number of shapes than this attempt has done. His jealousy was highly excited by such a steady adherence to an idea so extremely offensive. The people of the United States did not wish to be trodden down by a Continental army. How this amendment might sit on the stomachs of some people, he could not say; but, if he were one of the gentlemen who represented the people from whom the requisition for defence had come, the amendment of the Senate would sit very badly indeed upon his stomach. Mr. NICHOLAS said, that a bill had been wanted to _protect_ the frontiers, but, by this amendment, the bill would _scourge_ them. He wondered at the pertinacity of some people, in adhering to the idea of a standing army. Mr. N. enlarged considerably on the question before the House. Mr. MCDOWELL had lived long on the frontiers, and he believed that he understood, from personal experience, what was the proper mode of defending them, as well as perhaps any gentleman on that floor. He was against the amendment, because he knew, from repeated experiments, that regular troops were, in this kind of service, altogether useless. The militia of the frontiers, who knew the country, and whose habits of life made them perfectly acquainted with the character of the enemy whom they had to encounter, were the only proper forces to oppose the Indians with success. But why Government should burden itself with a useless expense, or the people with a kind of defence which they disliked, Mr. McD. did not know. Perhaps there was no part of the Union that had behaved so prudently and so pacifically as the citizens on the South-western frontiers. Yet Indian treaties were constantly broken by the savages themselves. Gentlemen who had never been witnesses to the scene, did not feel it, with adequate comprehension or sensibility. A man went to his corn-field, along with his son, who was shot dead by his side. He came home, and found his wife and the rest of his family murdered. Circumstances of this kind, and of which Mr. McD. drew an affecting picture, were too dreadful for human patience to support. Mr. BOUDINOT thought that the militia could not be kept together for six months, and that it was better to have regular troops. Mr. AMES replied to Mr. GILES. It was wrong to say that this was part of a system, and that the twenty-five thousand men had been part of it. He saw no such thing. We have one Indian war already, which is enough at a time. Those whom we are now to quarrel with, are three times more numerous than those to the North-west. The Creeks, Cherokees, Choctaws, and Chickasaws, were, as Mr. A. had been informed, fifteen thousand fighting men. He did not think that there were too many Indians on the frontier, any more than too many wild beasts. The one might, by skilful management, be rendered as harmless as the other. Even the success of an Indian war, by extending our frontier, augments the number of our enemies; so that the task is hopeless, and has no end. Distance from the seat of Government would increase, and with it the charges of defence. He was not one of those who wished to exterminate these poor creatures. He recommended a system of restraint on both sides. He could wish for something as strong as the Chinese wall to separate them. When an exasperated militia went out, what were we to expect, but that the first man with a red skin whom they met would be shot? Presently you discover that you have been shooting an Indian of the wrong nation, while, in the mean time, this whole nation rises and attacks you. The Continental troops, as being less exasperated, were less apt to fall into mistakes of this kind. He did not wish the militia to be called out in such numbers as were proposed by the bill when sent up to the Senate. He wished, if possible, for a restraint on both parties. He was for the amendment. Mr. MURRAY was of the same opinion. It was not once in ten times that, when an Indian was killed by a white man, the murderer could be convicted. As to the standing army being an object of alarm, he ridiculed that idea. But, at any rate, it was possible to limit the operations of this regiment of eleven hundred and forty men to the South-western frontier, if gentlemen were afraid of their being marched up and down the country. Mr. GILLON said, that there was something in this question, just like that some days since, about the galleys. If you do not want them, they shall not be forced upon you. He could not see their use in South Carolina. It was a body of militia that was wanted. There are no tumults in South Carolina to be repressed by a standing army. The expedition against Spain is knocked up. What occasion, then, can there be for them? He feared that this corps was only a part of the old leaven, the gilding of a bad pill He liked this proposal better than the others of the same sort, only because, as the numbers are inferior, the evils are less. Mr. G. had no idea of hiring other people to do for us what we can do for ourselves. He had voted against the twenty-five thousand men, and the ten thousand, and he should also vote against the present number. Mr. MADISON said, that he would not enter at large into this subject, but there was one circumstance in the business which struck him as very strange. It was proposed to raise a new corps, at a bounty of twenty dollars. The present army wanted more than the whole number of this corps to fill up its deficiencies, and yet the proposal for completing them had been rejected. Thus are we to be at the expense of supporting the skeleton of an army. Was it not better to fill up the old corps, than to put ourselves to the inconvenience of raising a new one? Mr. MCDOWELL rose to correct what had fallen from Mr. AMES, as to the strength of the Indian nations on the South-western frontier. The Choctaws and Chickasaws are, and always have been, friends to the white people, and ready to fight for them. The Creeks and Cherokees do not, at the most, extend to more than seven or eight thousand men. Mr. CARNES.--The only use that Continental troops can be of is to defend posts; and it has been found, by the experience of several years, that posts do more mischief than service. They are established at a distance of fifteen or twenty miles from each other. The Indian parties slip in between them; and the frontier settlers, depending on the protection of the regulars, are not, as they otherwise would be, upon their guard against the savages. The consequence is, that they are frequently murdered; while the only service performed by the Continentals is, that when the militia pursue the Indians, they are prevented by the former from crossing what is called the line. That is the whole service which they have performed in Georgia. In short, against the Creeks, they are good for nothing. Mr. C. wished that gentlemen would frankly say, once for all, that the Georgians did not deserve protection, and then the State would know what was to be done. He insisted on it, that, in Georgia, there were improper leanings in favor of the Indians. He referred to some persons in office, whom he specified. He believed sincerely that the Senate imagined themselves to be acting for the best; but they could not be such competent judges as persons on the spot. Within the last seven years, there has not been a single instance of an Indian killed by a white man, unless when the Indians themselves began the quarrel. During the last ten or twelve years, there had been stolen from Georgia, horses to the amount of a hundred thousand dollars. These were often the chief property of poor people, who had nothing else to depend on for supporting their families. Gentlemen say that we have one Indian war already. But if you have two hands, both in the fire at once, will you pull out one before the other? The Creeks are a savage and faithless tribe. Some years ago, a treaty was made with them at New York; and this treaty cost, in presents, sixty-one thousand dollars. Well, before the chiefs got home, a fresh set of murders were committed. A set of commissioners were next sent, and this embassy cost perhaps a hundred and fifty thousand dollars more. Gentlemen might talk as they thought fit about Indians; for his own part, he would not give the life of one white man for those of fifty Indians. The militia had been always successful against them, and the regulars had always been beaten; this showed the futility of the present amendment from the Senate. Of the successes of the militia, he gave some striking instances, where they had defeated three or four times their own number. As an evidence of the improper leaning on behalf of the Indians, Mr. C. adverted to what had just happened in Georgia. A gang of savages stole some horses. Lieutenant Hay, with a party of dragoons, pursued them, and fell into an ambuscade, where Mr. Hay and two men were killed. This was the way that the Creeks kept a peace. Soon after, an Indian, being found in the State, was wounded; and in the correspondence read the other day to the House, it was so stated, as if the white people were to blame. It made every drop of blood in his heart boil, to hear what he heard in this city as to the character and conduct of his constituents. As a Representative of Georgia, he _demanded_ effectual aid for that State. If the House did not choose to grant it, he warned them that the Georgians would take measures for themselves. It was needless to speak of economy, after squandering such vast sums as he had mentioned, in the purchase of treaties that were never kept. He was against the amendment of the Senate. Mr. DAYTON rose to contradict one assertion, which had fallen from the gentleman, viz: that the regulars were always beaten by the Indians. If gentlemen exercised their memories, or attended to historical facts, they would see the contrary. General Sullivan had entered the country of the Six Nations, had defeated them, and destroyed their towns, and since that time they had been looked upon as a subdued people. Mr. D. was himself in the army on that expedition, and a witness to the success of the regulars. He was for the amendment. The question was put that the House do concur with the Senate in the said amendment, and passed in the negative--yeas 26, nays 42, as follows: YEAS.--Fisher Ames, David Cobb, Peleg Coffin, Joshua Coit, Jonathan Dayton, George Dent, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, Henry Glenn, James Gordon, William Hindman, Henry Latimer, Amasa Learned, Francis Malbone, William Vans Murray, Theodore Sedgwick, William Smith, Zephaniah Swift, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Peleg Wadsworth, Jeremiah Wadsworth, and John Watts. NAYS.--Theodorus Bailey, Abraham Baldwin, John Beatty, Thomas Blount, Thomas P. Carnes, Thomas Claiborne, Isaac Coles, William J. Dawson, Henry Dearborn, William Findlay, William B. Giles, James Gillespie, Alexander Gillon, Nicholas Gilman, Andrew Gregg, Samuel Griffin, William Barry Grove, Daniel Heister, William Lyman, Nathaniel Macon, James Madison, Joseph McDowell, Alexander Mebane, William Montgomery, Andrew Moore, Joseph Neville, John Nicholas, Alexander D. Orr, Josiah Parker, Francis Preston, Robert Rutherford, Thomas Scott, John Smilie, Jeremiah Smith, Thomas Sprigg, Thomas Tredwell, Philip Van Cortlandt, Abraham Venable, Francis Walker, Benjamin Williams, Richard Winn, and Joseph Winston. _Ordered_, That the further consideration of the said amendments be put off till to-morrow. SATURDAY, June 7. Mr. THATCHER moved that such members as had received their pay up to Monday next, and then absented themselves, should be ordered next session to return as much as they had received for the days when absent. The motion was ordered to lie on the table. MONDAY, June 9. LEMUEL BENTON (from South Carolina) appeared, produced his credentials, and took his seat in the House; the oath to support the Constitution of the United States being first administered to him by Mr. SPEAKER, according to law. Mr. BENTON (from South Carolina) informed the SPEAKER, that he had been prevented by indisposition in his family, and a long voyage, from attending his duty sooner in that House. This was the day of adjournment, and he wished to inform the House, that he should decline receiving pay for his travelling expenses, or attendance. He was not willing to qualify himself this day, unless it could be noted on the journals that he had refused any compensation. He took the oath. A message from the Senate informed the House, that the Senate having completed the Legislative business before them, are now about to adjourn until the first Monday in November next: Whereupon, Mr. SPEAKER adjourned the House until the first Monday in November next.[51] THIRD CONGRESS.--SECOND SESSION. HELD IN THE CITY OF PHILADELPHIA, NOVEMBER 3, 1794. PROCEEDINGS IN THE SENATE. MONDAY, November 3, 1794. The following Senators appeared, and took their seats: RALPH IZARD, President _pro tem._, from South Carolina. JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire. GEORGE CABOT, from Massachusetts. OLIVER ELLSWORTH, from Connecticut. THEODORE FOSTER, from Rhode Island. MOSES ROBINSON, from Vermont. RUFUS KING, from New York. ROBERT MORRIS, from Pennsylvania. JOHN BROWN, from Kentucky. BENJAMIN HAWKINS, from North Carolina. The number assembled not being sufficient to constitute a quorum to do business, the Senate adjourned to 11 o'clock to-morrow morning. TUESDAY, November 4. The Senate assembled: present as yesterday. JOHN VINING, from the State of Delaware, attended. MONDAY, November 10. The Senate assembled: present as on the 7th; and JOHN ADAMS, Vice President of the United States and President of the Senate, attended. ALEXANDER MARTIN, from the State of North Carolina, and JAMES JACKSON, from the State of Georgia, severally attended. The number assembled not being sufficient to constitute a quorum to do business, the Senate adjourned to 11 o'clock to-morrow morning. TUESDAY, November 11. The Senate assembled: present as yesterday; and WILLIAM BRADFORD, from the State of Rhode Island, attended. MONDAY, November 17. The Senate assembled: present as on Friday. The number assembled not being sufficient to form a quorum, the VICE PRESIDENT was requested by the Senators present, to write a letter to each of the absent Senators, stating that a fortnight has already elapsed without the formation of a Senate, and urging their immediate attendance as necessary to enable Congress to commence the business of the session. The Senate adjourned to 11 o'clock to-morrow morning. TUESDAY, November 18. AARON BURR, from New York, appeared to-day, which formed a quorum, and enabled the Senate to proceed to business. Messages were accordingly exchanged between the two Houses, and a joint committee was appointed to wait on the PRESIDENT OF THE UNITED STATES, to inform him that a quorum of the two Houses is assembled, and are ready to receive any communications that he may be pleased to make to them. Mr. IZARD, from the joint committee appointed for the purpose, reported that the PRESIDENT would meet the two Houses in the Representatives' Chamber at 12 o'clock to-morrow. WEDNESDAY, November 19. JOHN EDWARDS, from Kentucky, this day attended. The Senate agreeably to appointment attended in the House of Representatives, in order to receive the PRESIDENT's communications; and, on their return, the PRESIDENT's Speech was read, as follows: _Fellow-Citizens of the Senate, and of the House of Representatives:_ When we call to mind the gracious indulgence of Heaven, by which the American people became a nation; when we survey the general prosperity of our country, and look forward to the riches, power, and happiness, to which it seems destined; with the deepest regret do I announce to you, that, during your recess, some of the citizens of the United States have been found capable of an insurrection. It is due, however, to the character of our Government, and to its stability, which cannot be shaken by the enemies of order, freely to unfold the course of this event. During the session of the year one thousand seven hundred and ninety, it was expedient to exercise the Legislative power, granted by the Constitution of the United States, "to lay and collect excises." In a majority of the States, scarcely an objection was heard to this mode of taxation. In some, indeed, alarms were at first conceived, until they were banished by reason and patriotism. In the four western counties of Pennsylvania, a prejudice, fostered and embittered by the artifice of men, who labored for an ascendency over the will of others, by the guidance of their passions, produced symptoms of riot and violence. It is well known, that Congress did not hesitate to examine the complaints which were presented; and to relieve them, as far as justice dictated, or general convenience would permit. But the impression which this moderation made on the discontented, did not correspond with what it deserved. The arts of delusion were no longer confined to the efforts of designing individuals. The very forbearance to press prosecutions was misinterpreted into a fear of urging the execution of the laws; and associations of men began to denounce threats against the officers employed. From a belief, that, by a more formal concert, their operation might be defeated, certain self-created societies assumed the tone of condemnation. Hence, while the greater part of Pennsylvania itself were conforming themselves to the acts of excise, a few counties were resolved to frustrate them. It was now perceived, that every expectation from the tenderness which had been hitherto pursued was unavailing, and that further delay could only create an opinion of impotency or irresolution in the Government. Legal process was therefore delivered to the Marshal against the rioters and delinquent distillers. No sooner was he understood to be engaged in this duty, than the vengeance of armed men was aimed at _his_ person, and the person and property of the Inspector of the Revenue. They fired upon the Marshal, arrested him, and detained him, for some time as a prisoner. He was obliged, by the jeopardy of his life, to renounce the service of other process, on the west side of the Alleghany Mountain; and a deputation was afterwards sent to him to demand a surrender of that which he _had_ served. A numerous body repeatedly attacked the house of the Inspector, seized his papers of office, and finally destroyed by fire his buildings and whatsoever they contained. Both of these officers, from a just regard to their safety, fled to the seat of Government; it being avowed, that the motives to such outrages were to compel the resignation of the Inspector; to withstand by force of arms the authority of the United States; and thereby to extort a repeal of the laws of excise, and an alteration in the conduct of Government. Upon the testimony of these facts, an Associate Justice of the Supreme Court of the United States notified to me that "in the counties of Washington and Alleghany, in Pennsylvania, laws of the United States were opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshal of that district." On this call, momentous in the extreme, I sought and weighed what might best subdue the crisis. On the one hand, the Judiciary was pronounced to be stripped of its capacity to enforce the laws; crimes, which reached the very existence of social order, were perpetrated without control; the friends of government were insulted, abused, and overawed into silence, or an apparent acquiescence; and, to yield to the treasonable fury of so small a portion of the United States would be to violate the fundamental principle of our constitution, which enjoins that the will of the majority shall prevail. On the other, to array citizen against citizen, to publish the dishonor of such excesses, to encounter the expense, and other embarrassments, of so distant an expedition, were steps too delicate, too closely interwoven with many affecting considerations, to be lightly adopted. I postponed, therefore, the summoning the militia immediately into the field; but, I required them to be held in readiness, that, if my anxious endeavors to reclaim the deluded, and to convince the malignant of their danger, should be fruitless, military force might be prepared to act, before the season should be too far advanced. My Proclamation of the 7th of August last was accordingly issued, and accompanied by the appointment of commissioners, who were charged to repair to the scene of insurrection. They were authorized to confer with any bodies of men or individuals. They were instructed to be candid and explicit in stating the sensations which had been excited in the Executive, and his earnest wish to avoid a resort to coercion; to represent, however, that, without submission, coercion _must_ be the resort; but to invite them, at the same time, to return to the demeanor of faithful citizens, by such accommodations as lay within the sphere of Executive power. Pardon, too, was tendered to them by the Government of the United States, and that of Pennsylvania, upon no other condition than a satisfactory assurance of obedience to the laws. Although the report of the commissioners marks their firmness and abilities, and must unite all virtuous men, by showing that the means of conciliation have been exhausted, all of those who had committed or abetted the tumults did not subscribe the mild form which was proposed as the atonement; and the indications of a peaceable temper were neither sufficiently general nor conclusive to recommend or warrant the further suspension of the march of the militia. Thus, the painful alternative could not be discarded. I ordered the militia to march--after once more admonishing the insurgents, in my Proclamation of the 25th of September last. It was a task too difficult to ascertain with precision the lowest degree of force competent to the quelling of the insurrection. From a respect, indeed, to economy, and the ease of my fellow-citizens belonging to the militia, it would have gratified me to accomplish such an estimate. My very reluctance to ascribe too much importance to the opposition, had its extent been accurately seen, would have been a decided inducement to the smallest efficient numbers. In this uncertainty, therefore, I put into motion fifteen thousand men, as being an army which, according to all human calculation, would be prompt and adequate in every view, and might, perhaps, by rendering resistance desperate, prevent the effusion of blood. Quotas had been assigned to the States of New Jersey, Pennsylvania, Maryland, and Virginia; the Governor of Pennsylvania having declared, on this occasion, an opinion which justified a requisition to the other States. Among the discussions which may arise from this aspect of our affairs, and from the documents which will be submitted to Congress, it will not escape their observation, that not only the Inspector of the Revenue, but other officers of the United States in Pennsylvania, have, from their fidelity in the discharge of their functions, sustained material injuries to their property. The obligation and policy of indemnifying them are strong and obvious. It may also merit attention, whether policy will not enlarge this provision to the retribution of other citizens, who, though not under the ties of office, may have suffered damage by their generous exertions for upholding the constitution and the laws. The amount, even if all the injured were included, would not be great; and, on future emergencies, the Government would be amply repaid by the influence of an example, that he who incurs a loss in its defence, shall find a recompense in its liberality. While there is cause to lament that occurrences of this nature should have disgraced the name, or interrupted the tranquillity of any part of our community, or should have diverted, to a new application, any portion of the public resources, there are not wanting in real and substantial consolations for the misfortune. It has demonstrated, that our prosperity rests on solid foundations; by furnishing an additional proof, that my fellow-citizens understand the true principles of government and liberty; that they feel their inseparable union; that notwithstanding all the devices which have been used to sway them from their interest and duty, they are now as ready to maintain the authority of the laws against licentious invasions, as they were to defend their rights against usurpation. It has been a spectacle, displaying to the highest advantage the value of Republican government, to behold the most and the least wealthy of our citizens standing in the same ranks, as private soldiers, pre-eminently distinguished by being the army of the constitution; undeterred by a march of three hundred miles over rugged mountains, by the approach of an inclement season, or by any other discouragement. Nor ought I to omit to acknowledge the efficacious and patriotic co-operation which I have experienced from the Chief Magistrates of the States to which my requisitions have been addressed. To every description of citizens, indeed, let praise be given. But let them persevere in their affectionate vigilance over that precious depository of American happiness, the Constitution of the United States. Let them cherish it, too, for the sake of those who, from every clime are daily seeking a dwelling in our land. And when, in the calm moments of reflection, they shall have retraced the origin and progress of the insurrection, let them determine whether it has not been fomented by combinations of men, who, careless of consequences, and disregarding the unerring truth that those who rouse cannot always appease a civil convulsion, have disseminated, from an ignorance or perversion of facts, suspicions, jealousies, and accusations, of the whole Government. The intelligence from the army under the command of General Wayne is a happy presage to our military operations against the hostile Indians north of the Ohio. From the advices which have been forwarded, the advance which he has made must have damped the ardor of the savages, and weakened their obstinacy in waging war against the United States. And yet, even at this late hour, when our power to punish them cannot be questioned, we shall not be unwilling to cement a lasting peace, upon terms of candor, equity, and good neighborhood. Towards none of the Indian tribes have overtures of friendship been spared. The Creeks, in particular, are covered from encroachment by the interposition of the General Government, and that of Georgia. From a desire, also, to remove the discontents of the Six Nations, a settlement meditated at Presqu'isle, on Lake Erie, has been suspended; and an agent is now endeavoring to rectify any misconception into which they may have fallen. But I cannot refrain from again pressing upon your deliberations the plan which I recommended at the last session, for the improvement of harmony with all the Indians within our limits, by the fixing and conducting of trading houses upon the principles then expressed. _Gentlemen of the House of Representatives:_ The time which has elapsed since the commencement of our fiscal measures has developed our pecuniary resources, so as to open the way for a definitive plan for the redemption of the public debt. It is believed that the result is such as to encourage Congress to consummate this work without delay. Nothing can more promote the permanent welfare of the nation, and nothing would be more grateful to our constituents. Indeed, whatsoever is unfinished of our system of public credit, cannot be benefited by procrastination; and, as far as may be practicable, we ought to place that credit on grounds which cannot be disturbed, and to prevent that progressive accumulation of debt, which must ultimately endanger all governments. An estimate of the necessary appropriations, including the expenditures into which we have been driven by the insurrection, will be submitted to Congress. G. WASHINGTON. UNITED STATES, _November_ 19, 1794. _Ordered_, That Messrs. KING, ELLSWORTH, and IZARD, be a committee to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech this day to both Houses of Congress. THURSDAY, November 20. Mr. KING, from the committee, reported an Address to the PRESIDENT OF THE UNITED STATES, in reply to his Speech of the 19th to both Houses of Congress, which was read. _Ordered_, That to-morrow be assigned to take this report into consideration. FRIDAY, November 21. The Senate took into consideration the report of the committee, in reply to the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress at the opening of the session; and it was agreed to consider the report in paragraphs. On motion of Mr. BURR, seconded by Mr. JACKSON, to expunge these words: "Our anxiety, arising from the licentious and open resistance to the laws in the western counties of Pennsylvania, has been increased by the proceedings of certain self-created societies, relative to the laws and administration of the Government; proceedings, in our apprehension, founded in political error, calculated, if not intended, to disorganize our Government, and which, by inspiring delusive hopes of support, have been influential in misleading our fellow-citizens in the scene of insurrection:" It passed in the negative. On motion to amend the paragraph respecting the army, under the command of General Wayne, to be read as follows: "The pleasure with which we learn the success of the Western Army under the command of General Wayne, is enhanced by the hope, that their victories will lay the foundation of a just and durable peace with the _Indian_ tribes:" It passed in the negative. On motion to strike out of the paragraph respecting the Western Army, the words, "General and," it passed in the negative. And the several paragraphs reported by the committee being agreed to, the report was adopted, as follows: SIR: We receive with pleasure your Speech to the two Houses of Congress. In it we perceive renewed proofs of that vigilant and paternal concern for the prosperity, honor, and happiness of our country, which has uniformly distinguished your past administration. Our anxiety arising from the licentious and open resistance to the laws in the western counties of Pennsylvania, has been increased by the proceedings of certain self-created societies, relative to the laws and administration of the Government; proceedings, in our apprehension, founded in political error, calculated, if not intended, to disorganize our Government, and which, by inspiring delusive hopes of support, have been influential in misleading our fellow-citizens in the scene of insurrection. In a situation so delicate and important, the lenient and persuasive measures which you adopted merit and receive our affectionate approbation. These failing to produce their proper effect, and coercion having become inevitable, we have derived the highest satisfaction from the enlightened patriotism and animating zeal with which the citizens of New Jersey, Pennsylvania, Maryland, and Virginia, have rallied around the standard of Government, in opposition to anarchy and insurrection. Our warm and cordial acknowledgments are due to you, sir, for the wisdom and decision with which you arrayed the militia, to execute the public will; and to them, for the disinterestedness and alacrity with which they obeyed your summons. The example is precious to the theory of our Government, and confers the brightest honor upon the patriots who have given it. We shall readily concur in such farther provisions for the security of internal peace and a due obedience to the laws, as the occasion manifestly requires. The effectual organization of the militia, and a prudent attention to the fortifications of our ports and harbors, are subjects of great national importance, and together with the other measures you have been pleased to recommend, will receive our deliberate consideration. The success of the troops under the command of General Wayne cannot fail to produce essential advantages. The pleasure with which we acknowledge the merits of that gallant General and army, is enhanced by the hope that their victories will lay the foundation of a just and durable peace with the Indian tribes. At a period so momentous in the affairs of nations, the temperate, just, and firm policy that you have pursued, in respect to foreign powers, has been eminently calculated to promote the great and essential interest of our country, and has created the fairest title to the public gratitude and thanks. JOHN ADAMS, _Vice President of the United States, and President of the Senate_. _Ordered_, That the committee who prepared the Address wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. Mr. KING reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he would receive the Address of the Senate to-morrow at 12 o'clock, at his own house. SATURDAY, November 22. The Senate waited on the PRESIDENT OF THE UNITED STATES, and the VICE PRESIDENT, in their name, presented the Address agreed to on the 21st instant. To which the PRESIDENT OF THE UNITED STATES was pleased to make the following reply: _Gentlemen:_ Among the occasions which have been afforded for expressing my sense of the zealous and steadfast co-operation of the Senate, in the maintenance of Government, none has yet occurred more forcibly demanding my unqualified acknowledgments than the present. Next to the consciousness of upright intentions, it is the highest pleasure to be approved by the enlightened Representatives of a free nation. With the satisfaction, therefore, which arises from an unalterable attachment to public order, do I learn, that the Senate discountenance those proceedings, which would arrogate the direction of our affairs, without any degree of authority derived from the people. It has been more than once the lot of our Government to be thrown into new and delicate situations; and of these, the insurrection has not been the least important. Having been compelled at length to lay aside my repugnance to resort to arms, I derive much happiness from being confirmed by your judgment in the necessity of decisive measures, and from the support of my fellow-citizens of the militia, who were the patriotic instruments of that necessity. With such demonstrations of affection for our constitution; with an adequate organization of the militia; with the establishment of necessary fortifications; with a continuance of those judicious and spirited exertions which have brought victory to our Western Army; with a due attention to public credit and an unsullied honor towards all nations; we may meet, under every assurance of success, our enemies from within and from without. G. WASHINGTON. The Senate returned to their own Chamber, and then adjourned. MONDAY, November 24. JOHN RUTHERFORD, from New Jersey, attended. WEDNESDAY, November 26. JOHN HENRY, from Maryland, and JAMES ROSS, from Pennsylvania, severally attended. FRIDAY, November 28. STEPHEN R. BRADLEY, from Vermont, and CALEB STRONG, from Massachusetts, severally attended. TUESDAY, December 9. RICHARD POTTS, from Maryland, attended to-day. THURSDAY, December 11. FREDERICK FRELINGHUYSEN, from New Jersey, attended. MONDAY, December 15. STEPHEN MIX MITCHELL, from Connecticut, attended to-day. MONDAY, December 29. HENRY TAZEWELL, appointed a Senator by the State of Virginia, in the place of JOHN TAYLOR, resigned, produced his credentials, which were read, and the VICE PRESIDENT administered to him the oath required by law, and he took his seat in the Senate. FRIDAY, February 20. The VICE PRESIDENT being absent, the Senate proceeded to the election of a PRESIDENT _pro tempore_, as the constitution provides, and SAMUEL LIVERMORE was duly elected; who, declining the appointment, The Senate proceeded to the election of HENRY TAZEWELL to that office. _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES, and notify him of the election of Mr. TAZEWELL to be PRESIDENT of the Senate _pro tempore_. SATURDAY, February 28. HENRY LATIMER, from the State of Delaware, in place of GEORGE READ, resigned, attended, and produced his credentials, which were read; and, the oath prescribed by law being administered, he took his seat in the Senate. JAMES GUNN, from Georgia, attended. TUESDAY, March 3. Mr. BURR laid before the Senate a motion, as follows: "_Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both Houses concurring_, That the following article be proposed to the Legislatures of the several States, as an amendment to the Constitution of the United States, which, when ratified by three-fourths of the said Legislatures, shall be valid as part of the said constitution, to wit: "That the term for which the members of the Senate and House of Representatives of the next Congress are or shall be chosen shall expire on the first day of June next following the third day of March, on which it would have expired if this amendment to the constitution had not been adopted." _Ordered_, That this motion lie for consideration. TUESDAY EVENING, March 3. A message from the House of Representatives informed the Senate that the House, having finished the business of the session, are about to adjourn. _Ordered_, That Messrs. IZARD and MORRIS be a committee, jointly, with such committee as the House of Representatives may appoint on their part, to wait on the PRESIDENT OF THE UNITED STATES, and inform him that Congress is ready to adjourn without day, unless he may have any further communications to make. _Ordered_, That the Secretary acquaint the House of Representatives therewith, and desire the appointment of a committee on their part. A message from the House of Representatives informed the Senate that the House have appointed a joint committee on their part to wait on the PRESIDENT OF THE UNITED STATES, and inform him that Congress is ready to adjourn. Mr. IZARD reported, from the joint committee, that they had waited on the PRESIDENT OF THE UNITED STATES, who informed them that he had no further communications to make to Congress during this session. Whereupon, it was _Resolved_, That the Senate adjourn without day. EXECUTIVE JOURNAL. THE TENTH SESSION OF THE SENATE OF THE UNITED STATES, CONVENED ON MONDAY, JUNE 8, 1795. MONDAY, June 8, 1795. Pursuant to a call from the PRESIDENT OF THE UNITED STATES, in a circular addressed to the several Senators, informing each that "certain matters touching the public good required that the Senate should be convened on the above day, at the Senate Chamber, in Philadelphia, then and there to receive and deliberate on such communications as he shall then make to them:" the Senate assembled accordingly. PRESENT. JOHN ADAMS, Vice President of the United States and President of the Senate. _From New Hampshire._--JOHN LANGDON and SAMUEL LIVERMORE. _From Massachusetts._--CALEB STRONG and GEORGE CABOT. _From Vermont._--MOSES ROBINSON. From _Connecticut_.--OLIVER ELLSWORTH and JONATHAN TRUMBULL. _From Rhode Island._--THEODORE FOSTER and WILLIAM BRADFORD. _From New York._--RUFUS KING and ARRON BURR. _From New Jersey._--JOHN RUTHERFORD. _From Pennsylvania._--JAMES ROSS and WILLIAM BINGHAM. _From Delaware._--HENRY LATIMER. _From Maryland._--RICHARD POTTS. _From Virginia._--HENRY TAZEWELL and STEVENS THOMSON MASON. _From Kentucky._--JOHN BROWN and HUMPHREY MARSHALL. _From North Carolina._--ALEXANDER MARTIN and TIMOTHY BLOODWORTH. _From South Carolina._--JACOB READ. _From Georgia._--JAMES JACKSON. _Ordered_, That Mr. STRONG and Mr. LANGDON be a committee to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the Senate is assembled, and ready to receive any communications he may be pleased to make. Mr. STRONG reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he informed them he would make some communications to the Senate immediately. TUESDAY, June 9. PIERCE BUTLER, from the State of South Carolina, and FREDERICK FRELINGHUYSEN, from the State of New Jersey, severally attended. JAMES GUNN, from the State of Georgia, produced his credentials, and, the usual oath being administered, took his seat in the Senate. FRIDAY, June 12. JOHN HENRY, from the State of Maryland, produced his credentials, and, the usual oath being administered, he took his seat in the Senate. SATURDAY, June 13. ELIJAH PAINE, from the State of Vermont, produced his credentials, and the usual oath being administered, he took his seat in the Senate. MONDAY, June 15. JOHN VINING, from the State of Delaware, attended. The Senate resumed the consideration of the Treaty, communicated by the PRESIDENT OF THE UNITED STATES, with his Message of the 8th instant: and, after progress, the Senate adjourned. WEDNESDAY, June 17. The Senate resumed the consideration of the Treaty, communicated with the Message of the PRESIDENT OF THE UNITED STATES, of the 8th instant, and after discussion on the remaining articles, a motion was made and seconded, that it he "_Resolved_, (two-thirds of the Senate concurring therein,) That they do consent to, and advise the President of the United States, to ratify the Treaty of Amity, Commerce, and Navigation, between His Britannic Majesty and the United States of America, concluded at London, the 19th day of November, 1794, on condition that there be added to the said Treaty an article whereby it shall be agreed to suspend the operation of so much of the 12th article as respects the trade which his said Majesty thereby consents may be carried on between the United States and his Islands in the West Indies, in the manner, and on the terms and conditions therein specified. "And the Senate recommend to the President, to proceed, without delay, to further friendly negotiations with His Majesty, on the subject of the said trade, and of the terms and conditions in question." On motion, it was agreed, that this motion lie for consideration until to-morrow.[52] MONDAY, June 22. The VICE PRESIDENT laid before the Senate a letter from the Secretary for the Department of State, with a "list of the negroes, to which the correspondence between the Commander-in-chief of the American Army and Sir Guy Carleton relates;" which was read, and, with the document referred to, ordered to lie on the table. WEDNESDAY, June 24. _Deported Slaves of the Revolution._ A motion was made by Mr. GUNN, seconded by Mr. READ, as follows: "Whereas it is alleged by divers American citizens, that negroes, and other property, to a considerable amount, were carried away, in contravention of the seventh article of the Treaty of Peace between the United States and His Britannic Majesty: "_Resolved_, That the Senate recommend to the President of the United States, to renew, by friendly negotiation with his said Majesty, the claims of the American citizens, to compensation for the negroes and other property, so alleged to have been carried away; and in case the disagreement that has hitherto existed, relative to the construction in this behalf of the said article, cannot be removed by candid and amicable discussions, that it be proposed, as a measure calculated to cherish and confirm the good understanding and friendship which it is desired may prevail between the two countries, that commissioners be appointed, in the manner directed by the sixth article of the Treaty of Amity, Commerce, and Navigation, lately concluded between the United States and his said Majesty, with authority to ascertain and decide, as well the interpretation of the said seventh article in this respect, as likewise the amount of the losses sustained by the alleged violation of the same. "But the Senate are of opinion that the negotiation on this subject should be distinct from, and subsequent to that recommended by their act of the 24th instant, respecting the trade and intercourse between the United States and his said Majesty's islands in the West Indies." And, after debate, it was agreed that this motion lie until to-morrow for consideration. THURSDAY, June 25. The motion made by Mr. GUNN, as last recited, and yesterday referred to this day for consideration, was resumed. On motion to divide this motion, and to agree to all that is contained from the word "_whereas_," to the word "_same_," at the end of the first paragraph of the resolution inclusive, it passed in the affirmative--yeas 27, nay 1, as follows: YEAS.--Messrs. Bingham, Bloodworth, Bradford, Brown, Burr, Butler, Cabot, Ellsworth, Foster, Frelinghuysen, Gunn, Jackson, King, Langdon, Latimer, Livermore, Marshall, Martin, Paine, Potts, Read, Robinson, Boss, Rutherford, Strong, Trumbull, and Vining. Mr. Tazewell voted in the negative.[53] The yeas and nays were required by one-fifth of the Senators present. Those who voted in the affirmative, are--Messrs. Bingham, Bradford, Butler, Cabot, Ellsworth, Foster, Frelinghuysen, Gunn, King, Latimer, Livermore, Paine, Potts, Read, Ross, Rutherford, Strong, Trumbull, and Vining. These who voted in the negative, are--Messrs. Bloodworth, Brown, Burr, Jackson, Langdon, Marshall, Martin, Mason, Robinson, and Tazewell. Yeas 19, nays 10. So the question of reconsideration was lost, there not being two-thirds of the Senators present in the affirmative. On motion, by Mr. RUTHERFORD, for the question on the resolution as amended, to wit: "Whereas, it is alleged by divers American citizens, that negroes and other property, to a considerable amount, were carried away in contravention of the 7th article of the Treaty of Peace between the United States and His Britannic Majesty: "_Resolved_, That the Senate recommend to the PRESIDENT OF THE UNITED STATES to renew, by friendly negotiation with his said Majesty, the claims of the American citizens to compensation for the negroes and other property so alleged to have been carried away; and in case the disagreement, that has hitherto existed relative to the construction in this behalf of the said article, cannot be removed by candid and amicable discussions, that it be proposed, as a measure calculated to cherish and confirm the good understanding and friendship which it is desired may prevail between the two countries, that commissioners be appointed in the manner directed by the 6th article of the Treaty of Amity, Commerce, and Navigation lately concluded between the United States and his said Majesty, with authority to ascertain and decide, as well the interpretation of the said 7th article, in this respect, as likewise the amount of the losses sustained by the alleged violation of the same." It passed in the negative--yeas 14, nays 15, as follows: YEAS.--Messrs. Bloodworth, Brown, Butler, Burr, Gunn, Jackson, Langdon, Marshall, Martin, Mason, Paine, Read, Robinson, and Tazewell. NAYS.--Messrs. Bingham, Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, King, Latimer, Livermore, Potts, Ross, Rutherford, Strong, Trumbull, and Vining. FRIDAY, June 26. Mr. CABOT reported that the PRESIDENT OF THE UNITED STATES had no further communications to make to the Senate, than his hearty wishes that, in a speedy meeting with their friends, they may enjoy every felicity. On motion, _Ordered_, That there be paid by the Secretary of the Senate, out of the moneys appropriated for the contingent expenses of the Senate, to James Mathers, Doorkeeper, three dollars per day, and to Cornelius Maxwell, assistant Doorkeeper, two dollars per day, as compensation for their respective attendance during this special session of the Senate, over and above their stated allowance. On motion, the Senate adjourned without day. Attest: SAM. A. OTIS, _Secretary_. THIRD CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, November 3, 1794. The following members appeared, and took their seats, to wit: _From New Hampshire._--NICHOLAS GILMAN, JEREMIAH SMITH, and PAINE WINGATE. _From Massachusetts._--FISHER AMES, DAVID COBB, HENRY DEARBORN, DWIGHT FOSTER, BENJAMIN GOODHUE, SAMUEL HOLTEN, GEORGE THATCHER, PELEG WADSWORTH, and ARTEMAS WARD. _From Connecticut._--JOSHUA COIT, AMASA LEARNED, ZEPHANIAH SWIFT, URIAH TRACY, and JONATHAN TRUMBULL. _From Vermont._--ISRAEL SMITH. _From New York._--THEODORUS BAILEY, PHILIP VAN CORTLANDT, and JOHN WATTS. _From New Jersey._--JOHN BEATTY and ELIAS BOUDINOT. _From Pennsylvania._--THOMAS HARTLEY, JOHN WILKES KITTERA, FREDERICK A. MUHLENBERG, (Speaker,) and PETER MUHLENBERG. _From Maryland._--GABRIEL CHRISTIE and GEORGE DENT. _From Virginia._--ISAAC COLES, SAMUEL GRIFFIN, JOHN HEATH, JOSEPH NEVILLE, ANTHONY NEW, JOSIAH PARKER, and ROBERT RUTHERFORD. _From Kentucky._--CHRISTOPHER GREENUP. _From North Carolina._--THOMAS BLOUNT, WILLIAM JOHNSTON DAWSON, NATHANIEL MACON, and ALEXANDER MEBANE. _From South Carolina._--WILLIAM SMITH. _From Georgia._--ABRAHAM BALDWIN. A quorum of the whole number not being present, the House adjourned until to-morrow. TUESDAY, November 4. Several other members, to wit: from Rhode Island, FRANCIS MALBONE; from New York, HENRY GLENN, JAMES GORDON, and JOHN E. VAN ALLEN; from New Jersey, JONATHAN DAYTON; from Pennsylvania, THOMAS FITZSIMONS; from Delaware, HENRY LATIMER; from Maryland, WILLIAM VANS MURRAY; from Virginia, GEORGE HANCOCK, RICHARD BLAND LEE, JAMES MADISON, ANDREW MOORE, FRANCIS PRESTON, and FRANCIS WALKER; and from North Carolina, MATTHEW LOCKE, appeared, and took their seats in the House. And a quorum, consisting of a majority of the whole number, being present, _Ordered_, That a message be sent to the Senate, to inform them that a quorum of this House is assembled, and ready to proceed to business; and that the Clerk of this House do go with said message. WEDNESDAY, November 5. Several other members, to wit: from New Hampshire, JOHN S. SHERBURNE; from Massachusetts, WILLIAM LYMAN; from Connecticut, JAMES HILLHOUSE; from Vermont, NATHANIEL NILES; from New York, EZEKIEL GILBERT; from Maryland, WILLIAM HINDMAN; from Virginia, THOMAS CLAIBORNE; and from Georgia, THOMAS P. CARNES, appeared, and took their seats in the House. Notice was received that the Senate had not yet been able to form a quorum. Upon this, Mr. DAYTON moved that a committee shall be appointed to examine the business left unfinished last session, and report to the House. He saw no reason for losing time by waiting for the Senate. Mr. GOODHUE objected to the motion as improper. Mr. DAYTON challenged the gentleman to point out wherein the impropriety consisted. For two or three weeks the House of Representatives would have full employment, while the Senate, in reality, had none. He was positive as to the legality and expediency of proceeding. The SPEAKER put the question, and the ayes and noes were equal, each being twenty-five. The SPEAKER then informed the House that, as a quorum of their number was not present, it would be requisite to adjourn. The House rose immediately, after adjourning till to-morrow. THURSDAY, November 6. Two other members, to wit: from Massachusetts, PELEG COFFIN, and from Virginia, JOHN NICHOLAS, appeared, and took their seats in the House. FRIDAY, November 7. Several other members, to wit: from Pennsylvania, JAMES ARMSTRONG and WILLIAM MONTGOMERY; from Virginia, WILLIAM B. GILES; from North Carolina, JOSEPH WINSTON; and from South Carolina, JOHN HUNTER, appeared, and took their seats in the House. On motion, _Resolved_, That a Standing Committee of Elections be appointed, whose duty it shall be to examine and report upon the certificates of election, or other credentials of the members returned to serve in this House, and to take into their consideration all such matters as shall or may come in question, and be referred to them by the House, touching returns and elections, and to report their proceedings with their opinion thereupon, to the House. And a committee was appointed of Mr. DAYTON, Mr. HILLHOUSE, Mr. SHERBURNE, Mr. DENT, Mr. LEE, Mr. MACON, and Mr. HUNTER. _Ordered_, That the letter from the Governor of Maryland, together with the return of the election of Gabriel Duvall, to serve as one of the members of this House for the said State, in the room of JOHN FRANCIS MERCER, who has resigned his seat, which was laid before the House at the last session, be referred to the said Committee of Elections. MONDAY, November 10. Several other members, to wit: from New York, THOMAS TREDWELL; from New Jersey, LAMBERT CADWALADER; from Pennsylvania, JOHN SMILIE; from North Carolina, WILLIAM BARRY GROVE and JOSEPH MCDOWELL; and from South Carolina, RICHARD WINN, appeared, and took their seats in the House. The SPEAKER informed the House that the Senate had not yet been able to make a quorum. Fifteen members only appeared. One more was necessary. TUESDAY, November 11. Two other members, to wit: from Massachusetts, SHEARJASHUB BOURNE, and from New York, PETER VAN GAASBECK, appeared, and took their seats in the House. The SPEAKER informed the House that one Senator was yet wanting to the making of a quorum. [The Senate consists of thirty members, of whom only fifteen have yet (Tuesday) made their appearance; of consequence, a majority is wanting. The VICE PRESIDENT has, it is true, arrived, but he is not, strictly speaking, a Senator. He does not give a vote in questions that come before the Senate, unless the voices on a division are equal.] The SPEAKER laid before the House a letter from James White, enclosing the credentials of his appointment as a Representative of the territory of the United States, south of the river Ohio, in the Congress of the United States, according to the ordinance of Congress of the thirteenth of July, one thousand seven hundred and eighty-seven; which were read, and ordered to be referred to Mr. BALDWIN, Mr. GILBERT, Mr. WALKER, Mr. SWIFT, and Mr. JEREMIAH SMITH, with instructions to examine the matter thereof, and report the same, with their opinion thereupon, to the House. WEDNESDAY, November 12. Another member, to wit, CARTER B. HARRISON, from Virginia, appeared, and took his seat in the House. THURSDAY, November 13. Two other members, to wit: ANDREW GREGG and DANIEL HEISTER, from Pennsylvania, appeared, and took their seats in the House. FRIDAY, November 14. Several other members, to wit: from Massachusetts, SAMUEL DEXTER; from Virginia, ABRAHAM VENABLE; and from Kentucky, ALEXANDER D. ORR, appeared, and took their seats in the House. MONDAY, November 17. Two other members, to wit: from Rhode Island, BENJAMIN BOURNE, and from South Carolina, ANDREW PICKENS, appeared, and took their seats in the House. _Delegate south of the Ohio._ The House resolved itself into a Committee of the whole House on the report of the committee to whom was referred the letter from JAMES WHITE, together with the credentials of his appointment as a Representative of the territory of the United States south of the river Ohio. Mr. SWIFT objected to complying with the report of the committee. He thought that it could not be carried into execution, because it involved inconsistencies. If the object of the law referred to, was to admit this person to debate, and not to vote, that was unconstitutional. He was, by that law, to be a member of Congress; but the House of Representatives are not Congress, and, therefore, this person may equally vote in the House of Representatives and in the Senate; while, at the same time, he may interrupt the PRESIDENT consenting to a bill, by giving his advice. The constitution has made no provision for such a member as this person is intended to be. If we can admit a delegate to Congress or a member of the House of Representatives, we may with equal propriety admit a stranger from any quarter of the world. We may as well admit the gallery, or a foreign Minister, as this person from the territory south-west of the Ohio. At this rate, we may very soon overturn the constitution. If this person has any proper title to a seat, it must be in the Senate; it could not be in the House of Representatives, who were not delegates. The Senate, perhaps, might be called such. His election was nearer the mode of theirs, than that of this House. Mr. SMITH (of South Carolina) had no difficulty in declaring that the gentleman was fully qualified to take a seat in that House, by the terms of an express compact with the people. He was convinced that the Representatives have a right to admit those whom they regard as lawfully entitled to a seat in the House, for the purpose of debating. They may admit the Secretary of State, if they consider it as expedient. If this gentleman had applied to the Senate, that body also were authorized to admit him, if they thought it lawful. Under the old constitution, he would have been a member _sui generis_. He does not claim a right of voting, but of speaking only; and when the affairs of the South-western Territory were agitated in the Senate, he had a right, in his (Mr. S.'s) judgment, to speak and debate in that House also. Mr. S. wished that there had been previously settled another part of this business, viz: by whom the delegate was to be paid for his attendance. It may be a future question, also, whether he is to be dismissed when the galleries are cleared? Mr. GILES was not prepared to speak on the subject. On the score of expediency, his present opinion was, that the delegate from the south-west of the Ohio should be admitted. He had no objection to the motion of the member from Maryland, (Mr. MURRAY,) for the committee rising, but he would never consent to it for the sake of consulting the Senate. He would agree to it, for the sake of further deliberation among themselves. If the House chose to consult the _gallery_--a resource for information that he should never wish to see adopted--they had a right to consult it, or to ask advice from any other quarter, notwithstanding the assertion of the gentleman from Connecticut. Mr. DEXTER said, he thought the obstacle should be got over by a formal act of the Legislature. He was clear that the House had a right to consult or admit to the privilege of debating, any individual whom they thought proper. They might, for instance, admit an advocate to plead; in a particular case; but that was entirely a different matter from allowing him to give a vote on the question before the House. Mr. D. declared that he would vote against the report, as it now stands, not because he thought the gentleman from the South-western Territory unentitled to a seat, but because he regarded an act of the whole Legislature as a requisite for his introduction. It was now moved that the committee should rise, and report the resolution of the select committee. Mr. W. SMITH differed from Mr. DEXTER. He thought the House of Representatives was, in itself, perfectly competent to settle the point. He was determined that they ought not to consult the Senate upon the matter. It would be extremely improper to let the Senate interfere. He again adverted to his former position, that the House may, if it sees proper, introduce the Secretary of State to a privilege of being consulted, or any other person who may be thought suitable. But he would never submit to yield the privileges of the House to the Executive. They ought to decide their elections on their own authority, and on no occasion send to inquire of the Senate if such an amendment ought to be admitted. Mr. S. considered the gentleman (Mr. WHITE) as expressly within the present constitution. He trusted that the committee would not rise, under any such idea as consulting the Senate; but, if they at present rise, that it would be merely for the sake of obtaining further information. Mr. MURRAY.--If we could have foreseen this case, I am sure that we should have had a joint committee of privileges from both Houses, as judges. The situation of the gentleman refers to both, and therefore the Senate ought to be consulted on this head. Perhaps he is entitled to a seat in both Houses. Mr. MCDOWELL objected, that an act of the Legislature would never, practically, answer the purpose. The session would be next to ending, before such a law would be passed. In the mean time, the interest of the people south-west of the Ohio is agitated in a question, and their delegate is condemned to silence. The members generally admit, in substance, that he ought to be received into this House. He wished, therefore, that they would take a vote on the resolution of the select committee. He would object altogether to the proposal of the member from Maryland, for an act of the Legislature, or any consultation with, the Senate. Mr. MCD. was for admitting the member to his seat. Mr. BOUDINOT observed, that it was universally agreed that the old law for accepting such a member as a delegate of Congress, cannot be executed in its full sense. The gentleman ought, in his opinion, to go where members elected by Legislatures went, that is to say, to the Senate. There was no pretence for his admission among the Representatives of the people. If he had any right, it must be in the other House. He thought this a very important question, and that it deserved more consideration than it had yet received. Mr. B. was not prepared to vote; but, if he was forced to give his voice at present, he should be for remitting the gentleman to the Senate. He thought that there should be an act of the whole Legislature. He should vote for the committee rising. Mr. DAYTON said, that he should vote against the motion of the Maryland member, for the rising of the committee. He was against the object of this motion. He agreed entirely with the report of the select committee for receiving the south-western member immediately, as he had a right to a seat, founded on an original compact, which gave it to him. He objected to any concurrence of the Senate being asked. As to consulting persons out of doors, the House had a right to call Heads of Departments to give their opinions on any particular subject, if they thought proper. Mr. D. mentioned some cases of this nature, where such an expedient had been used. Mr. GILES mentioned one reason against the committee rising, which was, that the House had no other business before it. He then read an amendment to the resolution of the select committee, as a middle course, that would embrace the ideas of all parties. Mr. DEXTER repeated some of his former reasons for preferring an act of the Legislature. The question was called for, and put by the Chairman, Shall the committee now rise, and report progress? It was decided in the negative--yeas 38, nays 39. The question was then put on the resolution, as given by the committee. Mr. GILES again proposed his amendment. This was, that after the word "debating," in the resolution, there should be added, "upon any question touching the rights and interests of people in the territory of the United States south-west of the Ohio." The object was to narrow the power of the delegate. Mr. SMILIE was for his being admitted to deliberate on every subject, or none at all. Mr. GILES declared that he was very well pleased with the resolution, as it originally stood. He had only suggested this amendment that he might get the resolution through the House. He therefore withdrew his motion. Mr. BALDWIN did not see that the question was of much importance. When a member was permitted to speak, but forbidden to vote, his situation was, no doubt, infinitely higher than that of strangers in the gallery, that of an advocate allowed to plead at the bar of the House, or that of a printer who came only to take notes; but still it was extremely short of the situation of a member of Congress. This would be more especially the case, if his right of debating was restricted to the affairs of the North-west and South-west Territory. Mr. B. could see nothing in the new constitution that made an exclusion of the delegate from the south-west of the Ohio. This privilege had been solemnly promised to those people, upon three different occasions. When they belonged to the State of South Carolina, they sent a Representative, Mr. SEVIER, to Congress; and they separated into a new State, under the promise of this privilege. But now, we have made a discovery, that these laws cannot be put into execution. It is a great pity that we had not made this discovery sooner. Mr. B. rejected all idea of referring this matter to the Senate. When the latter had any question of that kind, that concerned themselves, they would, no doubt, judge for themselves, and that just as properly as the House of Representatives. As to the pay of this gentleman, that might be an after question. He was clear that there at present existed no law which could make out that. The House may hereafter, if they see fit, pass a law respecting it. But, in the mean time, Mr. B. was satisfied that these people had a claim for a delegate, which could not be got rid of by the House. Mr. SWIFT thought that it would be better to erect these people into a new State, and then the privilege would be of some real use to them. He was still of opinion that the constitution admits of no such delegate as this person is intended to be. He is a new kind of character, unknown to it. This person is _sui generis_. If the constitution knows any thing about him, then take him; if not, reject him. As to taking advice from the gallery, Mr. S. seemed to think he had been misunderstood. To admit a person within the bar for the purpose of consulting him, was a quite different thing from permitting the gallery, like this person, to come and take a permanent seat among the members, for the purpose of regularly debating. Mr. S. never meant to debar the House from taking information wherever they could find it. Mr. MURRAY was concerned that he found himself obliged to vote against the resolution of the Committee of the Whole. He still hoped that the gentleman would have a seat, but that the Senate would first be consulted. Mr. WINGATE moved an amendment to take the resolution, by adopting these words, "to a seat in Congress, as a delegate to Congress." Mr. MADISON said, that the resolution, as passed by the select committee, was so properly expressed, that he did not believe it could admit of any amendment or alteration whatever. The Committee of the whole House then divided on the resolution, when there appeared a very large majority in favor of reporting it as it first stood, and consequently for admitting Mr. WHITE as a delegate. The committee then rose. TUESDAY, November 18. Another member, to wit, THEODORE SEDGWICK, from Massachusetts, appeared, and took his seat in the House. _Delegate south of the Ohio._ The House proceeded to consider the report of the committee on the letter from JAMES WHITE, enclosing the credentials of his appointment as a Representative of the territory of the United States south of the river Ohio; to which the Committee of the whole House reported no amendment. Whereupon, the said report being again read at the Clerk's table, was, on the question put thereupon, agreed to by the House, as follows: "That, by the ordinance for the government of the territory of the United States north-west of the river Ohio, section nine, it is provided, "that, so soon as there shall be five thousand free male inhabitants of full age in the district, upon giving proof thereof to the Governor, they shall receive authority to elect Representatives to represent them in a General Assembly;" and by the 12th section of the Ordinance, "as soon as a Legislature shall be formed in the District, the Council and House, assembled in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating but not of voting, during this temporary government." Full effect is given to this Ordinance by act of Congress, August 7, 1789. "That, by the Deed of Cession of the territory south of the river Ohio, to the United States, in the fourth article, it is also provided 'that the inhabitants of the said territory shall enjoy all the privileges, benefits, and advantages, set forth in the Ordinance of the late Congress for the government of the Western Territory; that is to say, Congress shall assume the government of the said territory, which they shall execute in a manner similar to that which they support in the territory west of the Ohio, and shall never bar or deprive them of any privilege which the people in the territory west of the Ohio enjoy.' "The cession, on these conditions, was accepted by act of Congress, on the 2d of April, 1790. "By an act passed the 26th of May, 1790, for the government of the territory of the United States south of the river Ohio, it is enacted, 'that the inhabitants shall enjoy all the privileges, benefits, and advantages, set forth in the Ordinance of the late Congress for the government of the territory of the United States north-west of the river Ohio. And the government of the said territory south of the river Ohio, shall be similar to that which is now exercised in the territory north-west of the river Ohio; except so far as is otherwise provided in the conditions expressed in an act of Congress of the present session, entitled 'An act to accept a cession of the claim of the State of North Carolina to a certain district of Western Territory.' The committee are of opinion that James White has been duly elected as delegate from the territory of the United States south of the Ohio, on the terms of the foregoing acts; they therefore submit the following resolution: "_Resolved_, that James White be admitted to a seat in this House as a delegate from the territory of the United States south of the river Ohio, with a right of debating but not of voting." Mr. MADISON said, that in new cases there often arose a difficulty by applying old names to new things. The proper definition of Mr. WHITE is to be found in the laws and rules of the constitution. He is not a member of Congress, therefore, and so cannot be directed to take an oath, unless he chooses to do it voluntarily. Mr. MURRAY moved that Mr. WHITE should be required to take the oath. Mr. W. SMITH observed, that the constitution only required members and the Clerk to take the oath. The gentleman was not a member. It does not even appear for what number of years he is elected. In fact he is no more than an envoy to Congress. Instead of being called delegate to Congress, had he been plainly called an envoy, the difficulty would have vanished. He is not a Representative from, but an officer deputed by the people of the Western Territory. It is very improper to call on this gentleman to take such an oath, any more than any civil officer in the State of Pennsylvania. Mr. S. did not consider him as coming even within the Post Office law, (viz: for franking letters.) He is not entitled to pay, unless a law shall be passed for that end. Mr. GILES agreed with the gentleman who spoke last as to the impropriety of demanding an oath. Mr. LYMAN was for it. Mr. DAYTON was against the oath. Call him what you will, a member, a delegate, or, if you please, a _nondescript_. It would be wrong to accept his oath, even if he should offer it. He is not a member. He cannot vote, which is the essential part. It is said that he can argue, and by that means influence the votes of the House. But so also a printer may be said to argue and influence, when he comes to this House, takes notes, and prints them in the newspapers. Mr. BOUDINOT.--As the House had set out on a wrong principle, it was natural that, in their subsequent progress they should wander further and further from the point. But, as the House had now given their decision, he acquiesced in it. It was, however, a strange kind of thing to have a gentleman here arguing, who was not bound by an oath. He never could reconcile it. Several other members spoke. The House divided on the question, "Shall the delegate take an oath as a member?" Ayes 32, noes 42--majority against the motion, 10. _Ordered_, That a committee be appointed to bring in a bill extending the privilege of franking to JAMES WHITE, the delegate from the South-western Territory, and making provision for his compensation; and that Mr. WILLIAM SMITH, Mr. THATCHER, and Mr. MACON, be the said committee. WEDNESDAY, November 19. Another member, to wit, THOMAS SCOTT, from Pennsylvania, appeared, and took his seat in the House. _Ordered_, That a message be sent to the Senate to inform them that this House is now ready to attend them in receiving the communication from the PRESIDENT OF THE UNITED STATES, agreeably to his notification to both Houses yesterday; and that the Clerk of this House do go with the said message. The Senate attended and took seats in the House; when, both Houses being assembled, the PRESIDENT OF THE UNITED STATES came into the Representatives' Chamber, and delivered his Address to them. (For which see Proceedings of the Senate.) The PRESIDENT OF THE UNITED STATES then withdrew and the two Houses separated. _Ordered_, that the Speech of the PRESIDENT OF THE UNITED STATES to both Houses be committed to a Committee of the whole House to-morrow. THURSDAY, November 20. Another member, to wit, WILLIAM FINDLAY, from Pennsylvania, appeared, and took his seat in the House. MONDAY, November 24. _Answer to the President's Speech._[54] Mr. NICHOLAS then rose in defence of Mr. MADISON's amendment. He thought the House should not bow so much to the Executive as to approve of his proceedings without knowing what they are. Gentlemen say that they do not mean an implicit approbation. Why, then, hazard words that infer it? He would go as far in thanking the PRESIDENT as any person with propriety could go. Mr. SEDGWICK insisted that the amendment of the member from Connecticut (Mr. HILLHOUSE) was preferable to the other. The PRESIDENT has said that his policy in regard to foreign nations is founded on justice. We approve of that. He recites his motives. They are also approved. Where, then, is the danger of expressing a general approbation? Would it be proper to give an approbation that cannot be appropriate, and that has no definite meaning? Mr. S. was far from designing to approve, explicitly or implicitly, what the House were not acquainted with. He only intended to convey a general sentiment of approbation; and he saw nothing more than this in the amendment of the gentleman from Connecticut. Mr. HILLHOUSE never designed indiscriminate approbation; nor had he any secret meaning couched under the words of his amendment. When he had any thing to say to the House, he came honestly and told them in plain words what he would be at. He meant to express his applause of pacific and equitable measures. As to the question so often referred to, (the embassy of Mr. Jay,) he solemnly declared that it never was in his mind to express any thing about it. It would come before another body. Mr. MADISON imagined that, in his motion as now worded, every person might see substantial approbation. Mr. AMES.--Jealousy may become habitual as well as confidence. Nothing but a habit of jealousy could have found any thing of a secret in this verbal distinction of _your_ policy instead of _a_ policy. The distinction was trifling, but, if there must be one, he preferred the amendment of Mr. HILLHOUSE. His reasons for this preference were so minute that they, perhaps, had little more value than what his imagination chose to give them. In the mean time, nobody will suppose that we do not approve of the policy of the PRESIDENT in preferring pacific measures, because the system of peace is now preferred all over the Continent of America. Mr. DAYTON rose to make a reply to "remarks so illiberal." Mr. AMES here rose again and said that the gentleman certainly could not mean him. I mean _that_ gentleman, Mr. SPEAKER, said Mr. DAYTON, pointing to Mr. AMES. He has accused me of "habits of jealousy." To this charge Mr. D. rejoined with some warmth. He again declared that he never would pledge himself to approve of the mission of Mr. Jay, till he should learn what were that gentleman's instructions. He meant to draw this line of distinction, to give approbation of general principles, but not of particular measures. The former he considered as implied in the amendment of Mr. MADISON, the latter in that of Mr. HILLHOUSE. Mr. VANS MURRAY considered the dispute as resting on the words _a_ policy and _your_ policy. He would not give explicit approbation to particular measures, but he approved the general principles on which the PRESIDENT preferred a pacific system. Mr. GILES.--It is admitted on all sides of the House, that we approve the general principles, but will not pledge ourselves to approve the particular means. It is best, then, to adopt the least equivocal words. Mr. G. allowed that there was but little difference, yet he should vote for the amendment of Mr. MADISON as it stood. Mr. DEXTER, in opposition to the sentiments of the gentleman who had last sat down, would vote for "_your_ policy," instead of "_a_ policy." The latter made the sentence an abstract proposition. The words "_your_ policy," made it a personal application. The omission of the word _your_ tended to an implication of censure. If an abstract proposition was the whole meaning intended to be expressed, that meaning might as well be put into any other place as into an Address to the PRESIDENT. He did not see the use of it. Praise (said Mr. D.) is the only reward which a person receives in a Republican Government; or at least, it is the greatest reward; and if withheld where due, the effect must be pernicious. Here it would be of more particular impropriety to withhold praise, when all our constituents approve the pacific policy of the PRESIDENT. It would have been a matter of little consequence at first, whether "_a_ policy" or "_your_ policy" had been adopted, for every reader would have understood it as an approbation of the PRESIDENT. But now, after such a debate, if we scruple at the word _your_, all the world will conclude that we mean an implied censure. Mr. BOUDINOT said that he adopted the word _your_ as unequivocal. He had no meaning but what was open and candid. By adopting the amendment the House would make that language explicit, which was at present, at least in some degree, ambiguous. Mr. TRACY pronounced an elegant panegyric on the character and conduct of the PRESIDENT OF THE UNITED STATES, whom no man admired more sincerely than he did, though he could not speak thus from the honor of enjoying a personal acquaintance. He recommended to Mr. MADISON rather to withdraw his motion of amendment altogether than bring it forward at such an expense of the good temper of the House. The present session had commenced with good auspices, and much cordiality, and he would be extremely sorry to disturb its tranquillity. Mr. MADISON said that he felt sensibly the force of the remarks made by the gentleman who was last up. In consequence of these remarks, he should be happy to withdraw his amendment. This was accordingly done. It was then proposed that the Committee of the whole House should rise, and report the draft of the Address as originally given in by the special committee, with the additional amendment that had been proposed by Mr. DAYTON, and adopted. Mr. FITZSIMONS then rose and said, that it would seem somewhat incongruous for the House to present an Address to the PRESIDENT which omitted all notice of so very important an article in his Speech as that referring to the self-created societies. Mr. F. then read an amendment, which gave rise to a very interesting debate. The amendment was in these words: "As part of this subject, we cannot withhold our reprobation of the self-created societies, which have risen up in some parts of the Union, misrepresenting the conduct of the Government, and disturbing the operation of the laws, and which, by deceiving and inflaming the ignorant and the weak, may naturally be supposed to have stimulated and urged the insurrection." These are "institutions, not strictly unlawful, yet not less fatal to good order and true liberty; and reprehensible in the degree that our system of government approaches to perfect political freedom." Mr. GILES stated at large his sentiments as to this expression in the Speech of the PRESIDENT about self-created societies. The tone of that passage in the Speech had made a great deal of noise without doors, and it was likely to produce a considerable agitation within doors. [Here a motion was made for the rising of the committee.] Mr. G. did not wish to press himself upon the attention of the committee, but if they were disposed to hear him, he was prepared to proceed. Mr. SEDGWICK objected to the rising of the committee. The House had been often entertained and informed by the ingenuity of that gentleman, who was now prepared to address them. Mr. W. SMITH considered it as opposite to the practice of the House for a member to move that a committee should rise, at the very time when gentlemen had declared themselves ready to deliver their sentiments. [It was repeatedly inquired from the Chair, by whom this motion was made. No answer was given and it seemed to be the unanimous wish of the House that Mr. GILES should proceed, which he did.] Mr. G. began by declaring that, when he saw, or thought he saw, the House of Representatives about to erect itself into an office of censorship, he could not sit silent. He did not rise with the hope of making proselytes, but he trusted that the fiat of no person in America should ever be taken for truth, implicitly, and without evidence. Mr. GILES next entered into an encomium of some length on the public services and personal character of the PRESIDENT. He vindicated himself from any want of respect or esteem towards him. He then entered into an examination of the propriety of the expression employed by the PRESIDENT, with regard to self-created societies. Mr. G. said, that there was not an individual in America, who might not come under the charge of being a member of some one or other self-created society. Associations of this kind, religious, political, and philosophical, were to be found in every quarter of the Continent. The Baptists and Methodists, for example, might be termed self-created societies. The people called the Friends, were of the same kind. Every pulpit in the United States might be included in this vote of censure, since, from every one of them, upon occasion, instructions had been delivered, not only for the eternal welfare, but likewise for the temporal happiness of the people. There had been other societies in Pennsylvania for several purposes. The venerable Franklin had been at the head of one, entitled a society for political information. They had criminated the conduct of the Governor of this State and of the Governors of other States, yet they were not prosecuted or disturbed. There was, if he mistook not, once a society in this State, for the purpose of opposing or subverting the existing constitution. They also were unmolested. If the House are to censure the Democratic societies, they might do the same by the Cincinnati Society. It is out of the way of the Legislature to attempt checking or restraining public opinion. If the self-created societies act contrary to law, they are unprotected, and let the law pursue them. That a man is a member of one of these societies will not protect him from an accusation for treason, if the charge is well founded. If the charge is not well founded, if the societies, in their proceedings, keep within the verge of the law, Mr. G. would be glad to learn what was to be the sequel? If the House undertake to censure particular classes of men, who can tell where they will stop? Perhaps it may be advisable to commence moral philosophers, and compose a new system of ethics for the citizens of America. In that case, there would be many other subjects for censure, as well as the self-created societies. Land-jobbing, for example, has been in various instances brought to such a pass that it might be defined swindling on a broad scale. Paper money, also, would be a subject of very tolerable fertility for the censure of a moralist. Mr. G. proceeded to enumerate other particulars on this head, and again insisted on the sufficiency of the existing laws for the punishment of every existing abuse. He observed, that gentlemen were sent to this House, not for the purpose of passing indiscriminate votes of censure, but to legislate only. By adopting the amendment of Mr. FITZSIMONS, the House would only produce recrimination on the part of the societies, and raise them into much more importance than they possibly could have acquired if they had not been distinguished by a vote of censure from that House. Gentlemen were interfering with a delicate right, and they would be much wiser to let the Democratic societies alone. Did the House imagine that their censure, like the wand of a magician, would lay a spell on these people? It would be quite the contrary, and the recrimination of the societies would develope the propriety of having meddled with them at all. One thing ought never to be forgotten, that if these people acted wrong, the law was open to punish them; and if they did not, they would care very little for a vote of that House. Why all this particular deviation from the common line of business to pass random votes of censure? The American mind was too enlightened to bear the interposition of this House, to assist either in their contemplations or conclusions on this subject. Members are not sent here to deal out applauses or censures in this way. Mr. G. rejected all aiming at a restraint on the opinions of private persons. As to the societies themselves, Mr. G. personally had nothing to do with them, nor was he acquainted with any of the persons concerned in their original organization. Mr. LYMAN hoped that the member from Pennsylvania would, upon reflection, withdraw his amendment. Mr. L. considered it to be as improper to pass a vote of censure, as it would be to pass a vote of approbation. He did not wish to give printers an opportunity of publishing debates that had better be suppressed. Besides, where will this business of censorship end? It would be much better not to meddle with the Democratic societies at all. Some of them were perfectly sensible that they had gone too far. He should, therefore, move that this committee do now rise, and that the Chairman report the Address as it now stands. Mr. THATCHER hoped that his colleague would not insist on taking that question just now, before other gentlemen had an opportunity of delivering their sentiments. Mr. LYMAN, in reply, said that gentlemen were at liberty, in discussing his motion, to tell their minds as to the self-created societies. Mr. SEDGWICK requested that Mr. LYMAN would take this motion out of the way. Mr. L. withdrew it. Mr. W. SMITH then rose, and entered at large into the subject. He said, that if the committee withheld an expression of their sentiments in regard to the societies pointed out by the PRESIDENT, their silence would be an avowed desertion of the Executive. He had no scruple to declare that the conduct of these people had tended to blow up the insurrection. Adverting to Mr. GILES, he thought the assertion of that gentleman too broad, when he spoke of not meddling with the opinions of other than political societies. He considered the dissemination of improper sentiments as a suitable object for the public reprobation of that House. Suppose an agricultural society were to establish itself, and under that title to disseminate opinions subversive of good order; the difference of a name should not make Mr. S. think them exempted from becoming objects of justice. Would any man say that the sole object of self-created societies has been the publication of political doctrines? The whole of their proceedings has been a chain of censures on the conduct of Government. If we do not support the PRESIDENT, the silence of the House will be interpreted into an implied disapprobation of that part of his Speech. He will be left in a dilemma. It will be said that he has committed himself. Mr. S. declared that he was a friend to the freedom of the press; but would any one compare a regular town-meeting where deliberations were cool and unruffled, to these societies, to the nocturnal meetings of individuals, after they have dined, where they shut their doors, pass votes in secret, and admit no members into their societies, but those of their own choosing? Mr. S., by way of illustration, observed, that this House had never done much business after dinner. In objection to this amendment it had been stated, that the self-created societies would acquire importance from a vote of censure passed on them. They were, for his part, welcome to the whole importance that such a vote could give them. He complained, in strong terms, of the calumnies and slanders which they had propagated against Government. Every gentleman who thought that these clubs had done mischief, was by this amendment called upon to avow his opinion. This was the whole. Mr. S. begged the House to take notice, and he repeated his words once or twice, that he did not mean to go into the constitution of these societies, or to say that they were illegal. The question before the House was not whether these societies were illegal or not, but whether they have been mischievous in their consequences. Mr. MCDOWELL was of opinion that the term self-created societies, was too indefinite. He professed the highest respect for the character of the PRESIDENT; but he did not think that the proposed vote of censure would be any eligible proof of it. The House of Representatives were assembled not to volunteer in passing votes of reprobation on societies, or individuals, but to legislate. He wished that gentlemen, instead of losing their time on such frivolous and inflammatory amendments, would proceed to the proper business of the House. The gentleman from South Carolina seemed to be well acquainted with Democratic societies. It was very true that they had published resolutions reprobating the assumption business, and the system of funding; but the rest of the people, as well as Democratic societies, had very generally censured the assumption and the funding transactions. He thought that some laws had been passed which answered no good purpose, nor indeed any purpose, but that of irritating the public. The present amendment he considered as destructive not only to the intercourse of domestic society, but that it involved a prospect of throwing restraint upon the conduct of gentlemen in the House of Representatives. With the gentleman from Virginia, (Mr. GILES,) he was satisfied that the amendment, if adopted, would have no weight whatever with the citizens of the United States; as they were too enlightened to accept of opinions from their Representatives. Mr. TRACY had imagined that no man would have the hardihood to come forward in that House and vindicate these societies. He quoted from the remarks of Mr. MCDOWELL, the words, "your wanton laws, begotten in darkness, first raised insurrection;" and likewise some other words about the enormous expense of millions for the Western expedition. Mr. T., after reading these expressions from a memorandum, which he held in his hand, declared his surprise, that a gentleman, whom he knew to possess the candor and good sense of the member from North Carolina, could suffer such language to escape him. He was certain that the gentleman, if he had not been somewhat in a hurry, never would have permitted those words to pass from his lips. Quitting this topic, Mr. T. said, that he would, for his own part, be disposed to let these societies alone, and leave them to the chastisement of their own consciences. If they were to say, "Gentlemen, you, as tyrants, make laws, and slaves obey them," I would answer, said Mr. T., "It is very rash. Think again before you say this again. We believe that, from inadvertency, some things have escaped from Democratic societies, which they had not well weighed, and which had a bad effect on weak and ignorant people in the western counties of Pennsylvania. You have seen the bad effects of your temerity. Take care before you publish any such thing again." Mr. T. said, this is all the length which we mean to go, and can any body object to this? The Democratic societies form but a very small portion of the people of America. Where is the harm in saying that one-hundredth, or, I believe I might say, not more than one-thousandth part of the citizens of the United States have been mistaken, and that they have been imprudent in printing certain indiscreet resolutions? Mr. T. declared that if the PRESIDENT had not spoke of the matter, he should have been willing to let it alone, because whenever a subject of that kind was touched, there were certain gentlemen in that House who shook their backs, like a sore-backed horse, and cried out, The Liberties of the people! Mr. T. wished only that the House, if their opinion of these societies corresponded with that of the PRESIDENT, should declare that they had such an opinion. This was quite different from attempting to legislate on the subject. Has not the Legislature done so before? Is there any impropriety in paying this mark of respect to a man to whom all America owes such indelible obligations? He thought that this declaration from the House of Representatives would tend to discourage Democratic societies, by uniting all men of sense against them. Mr. T. said, that perhaps the member who spoke last might be connected with some of these societies, of which he entertained so favorable an impression. Mr. MCDOWELL said, that he wanted the House to avoid quarrels, and to mind their proper business of legislation. He declared that he was not a member of any such society. He did not know that he had ever been in the company of any person who was a member of any of them. He was even, he declared upon his honor, ignorant whether there were, or ever had been, any such societies in North Carolina. He adverted to the simile of the sore-backed horse, and said that he believed his back to have been rubbed harder in the last war, than that of the gentleman. He imagined that these societies had done both good and harm, and again declared, that he could not consent to a vote of indiscriminate reprobation. Mr. DAYTON was heartily for the amendment. He observed that he wanted no evidence to satisfy him, as to the gentleman not being a member of any of these societies. If he had been connected with them, he would have known their principles better than he seems to do. Mr. D. said that many persons in New Jersey, who had been the most violent against the excise law were equally so against the insurgents; and though their opinion of the law itself was unaltered, which they made no scruple of openly declaring, yet they did not, on that account, hesitate about marching against the insurgents. They did not suppose that one obnoxious statute was any reason for overturning the Federal Constitution. The murmurs against the excise law in New Jersey had been converted into universal silence, because no man would venture to express his discontent, at the hazard of being suspected of being a friend to the insurgents. That the Democratic societies had produced the most mischievous effects in the western counties there could be no question. Letters had been received from officers in the army, who were the most respectable characters, and who, from authentic information, had affirmed the fact. It had been stated that these people would recriminate upon the House, and it had even been hinted that their recriminations might affect the PRESIDENT. _That man_, said Mr. D., is above their censure. He believed that if their censures had any effect at all, it would be to do the PRESIDENT honor. Mr. NICHOLAS.--When we see an attempt made in this House to reprobate whole societies, on account of the conduct of individuals, it may truly be suspected that some of the members of this House have sore backs. The PRESIDENT has been apprised of the absurdity of making this a Legislative business. Here Mr. N. read a passage from the PRESIDENT's Speech, to show, that the notice taken of self-created societies was not intended for a topic of discussion in that House. The passage was expressly addressed to every description of citizens: "And when in the calm moments of reflection, they shall have retraced the origin and progress of the insurrection, let them determine, whether it has been fomented by combinations of men, who, careless of consequences," &c. Was this an address to the two Houses? Did this passage show that the PRESIDENT wanted them to intermeddle? Were they called upon to give an opinion? Where could be the pretence for any thing of this sort? The House have made acts. The Democratic societies reprobate them, and then the House reprobate the Democratic societies. When you first cut a man's throat, and thereafter call him a rascal, do you suppose that your accusation will affect the man's reputation? The House, by passing this vote of censure, would make themselves a party, and lose a title to unsuspected confidence. Mr. N. declared, that, for his own part, he never had any concern with these societies, nor ever to his knowledge had spent an hour with any person who was a member of them. He rather, if any thing, despised them. He had always thought them the very worst advocates for the cause which they espoused; but he had come two hundred miles to legislate, and not to reprobate private societies. He was not paid by his constituents for doing business of that sort. The PRESIDENT knew the business of the House better than to call for any such votes of censure. It was wrong to condemn societies for particular acts. That there never should be a Democratical society in America, said Mr. N., I would give my most hearty consent; but I cannot agree to persecution for the sake of opinions. With respect either to the propriety or the power of suppressing them, Mr. N. was in both cases equally of opinion that it was much better to let them alone. They must stand or fall by the general sentiments of the people of America. Is it possible that these societies can exist, for any length of time, when they are of no real use to the country? No. But this amendment will make the people at large imagine that they are of consequence. Mr. DAYTON said, that these societies had produced the Western insurrection, and, therefore, the committee were just as well entitled to institute an inquiry in this case, as formerly regarding the failure of the expedition of General St. Clair. The committee now rose, and reported progress, and had leave to sit again. TUESDAY, November 25. Another member, to wit, JAMES GILLESPIE, from North Carolina, appeared, and took his seat in the House. _The President's Speech._ The House again went into Committee of the Whole on the Address of the PRESIDENT and the amendment of Mr. FITZSIMONS, Mr. COBB in the chair. Mr. MURRAY said, that he did not altogether like the wording of the amendment now before the House. He had hoped that some modification of it would have been prepared by some of its friends; but as none was offered, and there was a call for the question, he would vote for it rather than against it. He said, that he had not been personally attacked by any of the tribunals in question, and no further injured by their machinations than as he was a citizen of a free Republic in whose prosperity he felt the closest possible union, and in whose calamities he of course felt great sympathy. Among the various sources of the late calamity, the PRESIDENT had traced and designated certain self-created societies, who had arrogated the management of public opinions and affairs, and whom he had declared to have been, in his opinion, instrumental in fomenting the late insurrection. Mr. M. confessed that he had feared, last winter, lest the disorganizing spirit which had gone abroad in the shape of resolutions from these societies, would have produced the effect ascribed to them by the PRESIDENT. The conduct of the Democratic clubs, or those of them with which he had most acquaintance, appeared to him to have been instrumental to an event which threatened destruction to legitimate government. If we believe this to be the case, Mr. M. knew no motive, duty, or policy, which ought to restrain us at this period from saying that we believe it, and from lamenting it. Our declaration will rather hold out a caution to the thoughtless, than inflict legal penalties upon their follies. It will present to our fellow-citizens a memorable example of one source of error and political misfortune, by showing them the danger, which has already cost above twelve hundred thousand dollars. He could not see any evil that was to result from an expression of the opinion of the House, by the proposed amendment. It had not the quality of law; for, if a law were proposed for the abolition of these societies, he would oppose it. This amendment to the Address would operate as an advice. It curtails not the right of a free press, which Mr. M. held to be the luminary of the public mind. It would tend to excite a judicious and salutary inquiry among many respecting the just and true limits within which a virtuous and enlightened well-wisher to our country would think it safe to exercise this right. Of the inutility and danger of such societies in this country, he had little doubt. The scene of their birthplace was well adapted to the wholesome display of their powers. In France, where a despotism, impregnable to public opinion, had reigned--where no channel opened a sympathy by representation with the great body of the nation--those societies were admirably adapted to break down and subvert the old bulwark of habitual authority. But in America the case was widely different. Look at the immense body of public functionaries, who in this country are elected immediately by the people, or by their electors, in a constitutional mode, and say whether they are not adequate as functionaries to the public purposes of the country. Including every description of Legislators, Councils, Governors, Courts, Jurors, and Sheriffs, there are above twelve thousand. Of these, more than eleven hundred are actual Legislators, besides the hundred in this House, and those above stairs. These all act in the States, counties, townships, and hundreds, in separate but relative circles, so as to preclude a partial attention to any one scene, to the exclusion of another. The whole country is full of well-constituted organs of the people's will. Many of these Legislatures are in session twice a year, and all of them annually. We might be confused by their immense number, were they not so admirably dispersed over the Continent, and did they not move under the guidance of the laws, with the harmony of the spheres. It would not be easy to organize the nation into a more multifarious shape. The case maintained by Mr. DAYTON yesterday appeared to be strong. He said that we had inquired into the defeat of St. Clair's army, and so we might into the causes of the insurrection. To point it out to a people so enlightened, will be to prevent it in future. If the House agree in opinion with the PRESIDENT, they will speak their opinion, and do their duty. This declaration goes to the constituent body, through the Executive; and, while it gratifies their inquiries in a point of so much solicitude, it erects a warning beacon. It shows to them the stormy breakers which lately threatened the public peace with shipwreck, and invites them to adhere to pilots of their own choosing, and to charts with which they are acquainted. If the PRESIDENT had not thought some of the societies instrumental in producing the late calamity, they would not have attracted his notice, nor that of the House. It is because they are believed to have assisted and fomented the insurrection, that our constituents ought to be warned against them; and that another necessity for exerting their patriotism may be saved to those brave men who are at present encountering every difficulty in the West. These societies are not attended to, because, however offensive some of their proceedings and doctrines may have been, yet the rights of the press ought not to be freely handled. Mr. FITZSIMONS had no violent predilection for any performance of his own. He had, therefore, to prevent so much disputing, prepared to withdraw his motion, provided the committee be willing that he should do so, and, in the room of this motion, he would read another, for which he was indebted to a gentleman at his right hand, (Mr. B. BOURNE.) The committee consented. The former motion was withdrawn, and the other was read. This was an echo of that part of the speech of the PRESIDENT which mentions self-created societies. Mr. CHRISTIE then rose. He was sorry to differ from his worthy colleague (Mr. MURRAY) on the question then before the committee; and he was doubly sorry to hear that gentleman labor so strenuously to saddle a public odium on some of the best citizens of the State which he represented. Mr. C. should not have risen on the present occasion, although he thought it an important one, had it not been to endeavor to rescue from public censure a society of gentlemen, who were described in the present amendment before the committee, as objects of public opprobrium. Mr. C. alluded to the Republican Society of the town of Baltimore. If the present amendment took place, that society would be involved in general and undeserved censure. He would, therefore, inform the House of what description of men the Republican Society of Baltimore consisted; and then the committee would be the best judges whether they ought to be rewarded in the manner in which the present amendment proposes. They are a society of gentlemen associated together for the purpose of diffusing political knowledge throughout the State of Maryland, and to instruct their Representatives in Congress, and the Legislature of the State, in any point that they think necessary, and not for the purpose of sowing dissension among the citizens of America, or of cultivating dislike to the Union, or to the laws. This society consists of men whose characters are superior to any censure that might be thrown against them, by the mover of the amendment. But when Congress are about to cast an odium on a particular society, the members of which have every respect for that body, and have always inculcated obedience to the laws of the United States, Mr. C. left it to the committee to determine whether, if they were themselves in the place of the Baltimore Society, they would not feel their sensibility materially wounded? Was not this returning good for evil? He again reminded the committee that the Republican Society at Baltimore was composed of a band of patriots, not the fair-weather patriots of the present day, but the patriots of seventy-five, the men who were not afraid to rally around the American standard, when that station was almost concluded to be a forlorn hope. They were men who, with their persons and properties, had assisted to drive from the soil of America the present lawless disturbers of the world. Are these the men, asked Mr. C., who ought to have all this mass of Congressional odium cast upon them? I trust not, sir. I trust, that if particular gentlemen are illiberal enough to censure them, yet that this House will never agree to such iniquitous measures. What was the conduct of this society when the first news of the late insurrection reached them? Did they not, in the most pointed manner, discountenance any such proceeding? Did they not refuse to correspond with any society that aided, or in any manner abetted, the insurrection? They did more. They offered their personal services to go and help to crush this commotion in the bud. Mr. C. subjoined that he would venture to say, and at the same time he spoke within bounds, that nine-tenths of this society actually took up their muskets and marched into the field for the above laudable purpose, and that numbers of them still continue there, and are the friends of peace and order, and not the disorganizers that the present amendment would make them. Mr. C. appealed to the candor of the committee to say, whether the Baltimore self-created Republican Society were the description of men whom the PRESIDENT, in his Speech, meant to describe. He was sure it was not. Therefore, why involve in this indiscriminate censure men who have deserved so well of their country? men who, instead of having odium cast upon them, merit every praise which the Federal Government can bestow. For these, and some other reasons, Mr. C. declared that he should vote against the amendment, and he trusted that he should vote in the majority. Mr. MURRAY rose to explain. He did not mean this society. It was the Philadelphia and Pittsburg societies. Mr. M. was acquainted with this society, and had the greatest respect for them. As for the members of the other societies, he was for gibbeting their principles only. Mr. RUTHERFORD.--This alarm is owing to an overgrown moneyed system, with which the people are not entirely satisfied. But the moneyholders need not be afraid. The people will pay the public debt. Then why disturb the tranquillity of the people? The PRESIDENT, in his Speech, points only at combinations over the mountains. As to the character of the PRESIDENT himself, to praise him was like holding up a rush candle to let us see the sun. I have known that man, said Mr. R., for these forty years. I have had the honor of serving under him in the last war, and of frequently executing his wise and noble orders. The member declared that this amendment could answer no purpose but that of disturbing the public peace. He himself represented as respectable a district as any in Virginia, and he had as good opportunities as any gentleman in that House to know the temper of Americans. They were firmly attached to the present Government, and the holders of paper need not be so much afraid of Democratic societies, for the people, to preserve the tranquillity, were determined to discharge the public debt, no matter how it was contracted, and, therefore, it would be much better not to harass the public mind with amendments like that on the table. Mr. GILES said, that he had an amendment to propose that would, he hoped, meet with the approbation of a certain description of gentlemen in that committee. His amendment was to strike out the words "self-created societies," from the amendment of Mr. FITZSIMONS, and insert "the Democratic societies of Philadelphia, New York, and Pittsburg." Gentlemen could then have some specific object at which they could say that their vote of censure was levelled; for the general expression of self-created, comprehended every society of any kind in the Union. For his own part, he was very far from wanting to censure any set of men for their political opinions. Mr. PARKER seconded the motion for striking out, but he would not consent to the insertion proposed by Mr. GILES. Mr. SEDGWICK thought that the amendment stands better as it is at present. Mr. VENABLE said, that there was a paper on that table (he referred to the letter from Mr. HAMILTON to the PRESIDENT) which showed that the combinations in the western counties began their existence at the very same time with the Excise law itself. It was, therefore, entirely improper to ascribe them to Democratic societies. Should Government, said Mr. V., come forward and show their imbecility by censuring what we cannot punish? The people have a right to think and a right to speak. I am not afraid to speak my sentiments. I am not afraid of being called a disorganizer. I am, as much as any gentleman in this committee, a friend to regular government. Mr. DEXTER believed that such societies were, in themselves, wrong, but he was still not for making laws against them. He had, however, numerous objections to their conduct. One of these was, that they erected themselves into a model for the rest of their fellow-citizens to copy. The great principle of Republicanism was, that the minority should submit to the will of the majority. But these people have elevated themselves into tyrants. Such societies are proper in a country where government is despotic, but it is improper that such societies should exist in a free country like the United States, and hence, Mr. D. was a friend to the amendment proposed by Mr. FITZSIMONS. It had been said, that it was unusual to give opinions of this kind, but, in reality, the House were in the practice of expressing their sentiments on matters of that sort, in such addresses as the one now before them. Mr. D. was decidedly against the amendment of the amendment proposed by Mr. GILES. Mr. NICHOLAS.--Gentlemen have brought us into a discussion, and then say we must decide as they please, in deference to the PRESIDENT. This is the real ground and foundation of their arguments. But who started this question? If the gentlemen have brought themselves into a difficulty with regard to the PRESIDENT, by their participation in proposing votes of censure which they cannot carry through, they have only to blame themselves. Is it expected, said Mr. N., that I am to abandon my independence for the sake of the PRESIDENT? He never intended that we should take any such notice of his reference to these societies; but if the popularity of the PRESIDENT has, in the present case, been committed, let those who have hatched this thing, and who have brought it forward, answer for the consequences. This whole question turns upon a matter of fact, which ought to be proved, viz: Have the Democratic societies been one of the principal causes of the Western insurrection? This is a matter of fact, or otherwise, and it depends upon direct evidence. But how do gentlemen handle this question? They digress into abstract propositions, a thing never heard of before, where a matter of fact was to be proved. I say, where direct proof is wanted, we see gentlemen standing on the floor for half an hour together, without attempting to advance a single fact in support of their assertions; yet this is the only admissible kind of evidence that the societies are from their nature unfriendly to the Federal Government. Mr. N. then adverted to a remark which had been made, that libels were daily prosecuted in this country, from which it was inferred that calumnious attacks on Government were the just objects of reprehension. Mr. N. said, that the comparison was not fair, because in a case of libel, the parties accused have a proper opportunity to defend themselves. Have these people here (the Democratic societies) any such opportunity? It has been alleged, as a crime against them, that they have never once published any approbation of any measure of Government. Mr. N. argued that this arose from the very nature of their institution, which was to watch the errors of the Legislature and Executive, and point out to the public what they considered to be mistakes. Faults were the only kind of facts which they were in quest of. Here Mr. N. drew a material distinction. If these societies had censured every proceeding of Government, there would have been the greatest reason for taking some measures. But what was the case? As to an immense number of the proceedings of the Executive and Legislature, they had taken no notice whatever. Mr. SEDGWICK thought that the PRESIDENT would have been defective in his duty, had he omitted to mention what he religiously believed to be true, viz: that the Democratic societies had in a great measure originated the late disturbances. It was the indispensable duty of the PRESIDENT to speak as he had spoken. The present amendment (of Mr. FITZSIMONS) would have a tendency to plunge these societies into contempt, and to sink them still farther into abhorrence and detestation. He pronounced them to be illicit combinations. One gentleman (Mr. NICHOLAS) tells you, that he despises them most heartily. Another (Mr. LYMAN) says that they begin to repent. Will the American people perversely propose to shoulder and bolster up these despised and repenting societies, which are now tumbling into dust and contempt? Their conduct differed as far from a fair and honorable investigation, as Christ and Belial. They were men prowling in the dark. God is my judge, said Mr. S., that I would not wish to check a fair discussion. One gentleman (Mr. MCDOWELL) had told the committee, that the Assumption and Funding transactions were a cause of public discontent. It has been the trick of these people to make this assertion. They have said that the Funding System is a mass of favoritism, for the purpose of erecting an oppressive aristocracy, and a paper nobility. There is not a man among them, who is able to write, and who does not know that these assertions are false. As to the assumption of the debts of individual States, it has been said that this measure was undertaken for the purpose of making up a large debt. There was no such thing. Before the adoption of the new constitution, of which Mr. S. considered the Funding and Assumption Systems to be essential preliminaries, the credit and commerce of America were declining or gone. The States were disagreeing at home, and the American name was disgraced abroad. It was not to be supposed that every one of the measures of the new Government could please every body. Among the rest, excise was objected to in both Houses of Congress; but at last the good sense of the people acquiesced. At this crisis, a foreign agent (_Genet_) landed at Charleston. On his way to this city, he was attended by the hosannas of all the disaffected. He did the utmost mischief that was in his power; and in consequence of his efforts, Democratic societies sprung up. Mr. S. here gave a particular account of some proceedings of a society in Virginia, of more than usual boldness. He quoted some of their expressions relative to a very illustrious character, the PRESIDENT, and added that perhaps the individuals who composed this society were in themselves too despicable to deserve any notice in this place. He did not know whether they were or not. [Mr. S. was here interrupted by a member from Virginia, and an explanation ensued.] Mr. MCDOWELL rose to make an apology for some words which had escaped him the day before. He did not expect to have been so smartly handled. He had been forcibly struck at the time, and had spoken from a momentary impulse. In substance, however, he adhered to all his former allegations. He still persisted in believing that the excise laws were shapen in darkness. He apologized for some part of his heat, from having seen and suffered so much by despotic government during the last war in which this gentleman supported the character of a brave and able officer. Mr. HILLHOUSE approved of the amendment; as proposed by Mr. FITZSIMONS. Constituents made no scruple to tell Representatives of their faults, and he saw no reason why Representatives might not tell constituents of theirs? The resolutions of Democratic societies printed in newspapers, had spirited up the people in the Western counties to resistance. They had weakly fancied that the American nation would not stand by their constitution and their PRESIDENT. But for the publication of these resolutions, there would have been no insurrection. This was a piece of information which the people of the United States had a right to know. It was the duty of that House to let them know it. The PRESIDENT had done his duty. Mr. H. did not consider the amendment of Mr. FITZSIMONS as an indiscriminate censure levelled at these societies; he thought it only a suitable answer to a part of the PRESIDENT's Speech. Mr. PARKER concluded this long debate by the following remarks. He did not think that Democratic societies were so far to blame as had been imagined. He suspected that the PRESIDENT himself, for whose character and services he felt as much respect and gratitude as any man in America, had been misinformed on this point. It would be absurd to say, that the Western disturbances originated from the publications of Democratic societies, if it could be proved to the satisfaction of the committee, that such disturbances had begun long before any of the associations alluded to had a being. To prove this position, Mr. P. desired that the Clerk might read a passage from the letter on that affair, written by Mr. Hamilton, and which has already been published in all the newspapers. The Clerk accordingly read a part of the letter, from which Mr. P. inferred that his inference was incontestable, and he then stated the absurdity of making the Democratic publications the origin of a discontent, which existed before them. He was satisfied that the PRESIDENT did not wish this thing echoed; and that he would entirely disapprove of the proposed persecution. Mr. P. said, that he had the honor of being an honorary member of a Democratic society. Personally he knew nothing of the gentlemen, but he understood that they were respectable characters; and that they were friends to good order and the Federal Government, there could be no question, for when the Embargo was laid last spring, and some vessels had been attempting to get off, these vigilant citizens armed and embodied themselves, and prevented the execution of the design. With all his respect for the PRESIDENT, he was not to give up his opinions for the sake of any man. He was convinced that all this violent declamation and irritation in the House would do a great deal of mischief, and would have an effect exactly the reverse of what was designed by the amendment as it first stood. A gentleman (Mr. DEXTER) had spoken of town meetings, as the proper vehicles for the communication of political ideas, and had drawn a comparison between these and Democratic societies. Mr. P. requested that it might be noticed, that in the Southern States there neither were nor could be such things as town meetings, because the population was too thin and too widely scattered. They were therefore to make the best of it which they could, and meet and deliberate, no matter where, whenever they found a convenient opportunity. Mr. P. expressed, in strong terms the aversion that his constituents would feel to this species of censorship. He concluded with these words: "They love your Government much, but they love their independence more." The question was then called for on striking out the word "self-created" from the new amendment of Mr. FITZSIMONS. For the amendment of Mr. GILES, ayes 47, noes 45. This amendment was therefore adopted. Mr. GILES then proposed an amendment, after the words "combination of men," by adding, "in the four Western counties of Pennsylvania." Mr. HARTLEY said, that the gentleman should have added, "and a county in Virginia." This amendment of Mr. GILES was rejected. The committee now rose, and reported the amendments to the House. WEDNESDAY, November 26. [The committee having risen, and the question having been taken in the House, the yeas and nays on the motion to reinstate the obnoxious words, were:] YEAS.--Fisher Ames, James Armstrong, John Beatty, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Lambert Cadwalader, David Cobb, Peleg Coffin, Joshua Coit, William J. Dawson, Jonathan Dayton, Samuel Baxter, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, James Gordon, Samuel Griffin, William Barry Grove, Thomas Hartley, James Hillhouse, William Hindman, Samuel Holten, John Wilkes Kittera, Henry Latimer, Amasa Learned, Richard Bland Lee, Francis Malbone, William Vans Murray, Thomas Scott, Theodore Sedgwick, John S. Sherburne, Jeremiah Smith, William Smith, Zephaniah Swift, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Peleg Wadsworth, Artemas Ward, John Watts, and Paine Wingate. NAYS.--Theodorus Bailey, Abraham Baldwin, Thomas Blount, Thomas P. Carnes, Gabriel Christie, Thomas Claiborne, Isaac Coles, Henry Dearborn, George Dent, Gabriel Duvall, William Findlay, William B. Giles, James Gillespie, Christopher Greenup, Andrew Gregg, George Hancock, Carter B. Harrison, John Heath, Daniel Heister, John Hunter, Matthew Locke, William Lyman, Nathaniel Macon, James Madison, Joseph McDowell, Alexander Mebane, William Montgomery, Andrew Moore, Peter Muhlenberg, Joseph Neville, Anthony New, John Nicholas, Nathaniel Niles, Alexander D. Orr, Josiah Parker, Andrew Pickens, Francis Preston, Robert Rutherford, John Smilie, Israel Smith, Thomas Tredwell, Philip Van Cortlandt, Abraham Venable, Francis Walker, and Joseph Winston. And then the main question being put, that the House do agree to the said clause, amended to read as followeth: "In tracing the origin and progress of the insurrection, we can entertain no doubt that certain self-created societies and combinations of men in the four Western counties of Pennsylvania, and parts adjacent, careless of consequences, and disregarding the truth, by disseminating suspicions, jealousies, and accusations of the Government, have had all the agency you ascribe to them, in fomenting this daring outrage against social order and the authority of the laws:" It passed in the negative, nineteen members only rising in the affirmative. FRIDAY, November 28. _Answer to the Address._ The Answer, as amended, was then read throughout at the Clerk's table as follows: SIR: The House of Representatives, calling to mind the blessings enjoyed by the people of the United States, and especially the happiness of living under constitutions and laws which rest on their authority alone, could not learn, with other emotions than those you have expressed, that any part of our fellow-citizens should have shown themselves capable of an insurrection. And we learn, with the greatest concern, that any misrepresentations whatever, of the Government and its proceedings, either by individuals or combinations of men, should have been made, and so far credited as to foment the flagrant outrage which has been committed on the laws. We feel, with you, the deepest regret at so painful an occurrence in the annals of our country. As men regardful of the tender interests of humanity, we look with grief at scenes which might have stained our land with civil blood. As lovers of public order, we lament that it has suffered so flagrant a violation: as zealous friends of Republican Government, we deplore every occasion which, in the hands of its enemies, may be turned into a calumny against it. This aspect of the crisis, however, is happily not the only one which it presents. There is another, which yields all the consolations which you have drawn from it. It has demonstrated to the candid world, as well as to the American people themselves, that the great body of them, every where, are equally attached to the luminous and vital principle of our constitution, which enjoins that the will of the majority shall prevail; that they understand the indissoluble union between true liberty and regular government; that they feel their duties no less than they are watchful over their rights; that they will be as ready, at all times, to crush licentiousness, as they have been to defeat usurpation: in a word, that they are capable of carrying into execution that noble plan of self-government which they have chosen as the guarantee of their own happiness, and the asylum for that of all, from every clime, who may wish to unite their destiny with ours. These are the just inferences flowing from the promptitude with which the summons to the standard of the laws has been obeyed; and from the sentiments which have been witnessed, in every description of citizens, in every quarter of the Union. The spectacle, therefore, when viewed in its true light, may well be affirmed to display, in equal lustre, the virtues of the American character, and the value of Republican Government. All must particularly acknowledge and applaud the patriotism of that portion of citizens who have freely sacrificed every thing less dear than the love of their country, to the meritorious task of defending its happiness. In the part which you have yourself borne through this delicate and distressing period, we trace the additional proofs it has afforded of your solicitude for the public good. Your laudable and successful endeavors to render lenity in executing the laws conducive to their real energy, and to convert tumult into order, without the effusion of blood, form a particular title to the confidence and praise of your constituents. In all that may be found necessary, on our part, to complete this benevolent purpose, and to secure the ministers and friends of the laws against the remains of danger, our due co-operation will be afforded. The other subjects which you have recommended, or communicated, and of which several are peculiarly interesting, will all receive the attention which they demand. We are deeply impressed with the importance of an effectual organization of the militia. We rejoice at the intelligence of the advance and success of the army under the command of General Wayne, whether we regard it as a proof of the perseverance, prowess, and superiority of our troops, or as a happy presage to our military operations against the hostile Indians, and as a probable prelude to the establishment of a lasting peace, upon terms of candor, equity, and good neighborhood. We receive it with the greater pleasure, as it increases the probability of sooner restoring a part of the public resources to the desirable object of reducing the public debt. We shall, on this, as on all occasions, be disposed to adopt any measure which may advance the safety and prosperity of our country. In nothing can we more cordially unite with you, than in imploring the Supreme Ruler of Nations to multiply His blessings on these United States; to guard our free and happy constitution against every machination and danger; and to make it the best source of public happiness, by verifying its character of being the best safeguard of human rights. _Resolved_, That Mr. SPEAKER, attended by the House, do present the said address; and that Mr. MADISON, Mr. SEDGWICK, and Mr. SCOTT, be a committee to wait on the PRESIDENT, to know when and where it will be convenient for him to receive the same. Mr. GILES, from the committee appointed, presented a bill to regulate the pay of the non-commissioned officers, musicians, and privates, of the militia of the United States, when called into actual service, and for other purposes; which was read twice and committed. The SPEAKER laid before the House a letter from the Treasurer of the United States, accompanying his account of receipts and expenditures of public moneys, from the 1st of April to the 30th of June, 1794; also, his account of payments and receipts for the War Department, from the 1st of July to the 30th of September, 1794, inclusive; which were read, and ordered to lie on the table. Mr. MADISON, from the committee appointed to wait on the PRESIDENT OF THE UNITED STATES, to know when and where it will be convenient for him to receive the Address of this House, in answer to his Speech to both Houses of Congress, reported that the committee had waited on the PRESIDENT, who signified to them that it would be convenient to him to receive the said Address at twelve o'clock to-morrow, at his own house. SATURDAY, November 29. The SPEAKER, attended by the House, then withdrew to the house of the PRESIDENT OF THE UNITED STATES, and there presented to him the Address of this House, in answer to his Speech to both Houses of Congress; to which the PRESIDENT made the following reply: _Gentlemen:_ I anticipated, with confidence, the concurrence of the House of Representatives in the regret produced by the insurrection. Every effort ought to be used to discountenance what has contributed to foment it; and thus discourage a repetition of like attempts. For, notwithstanding the consolations which may be drawn from the issue of this event, it is far better that the artful approaches to such a situation of things should be checked by the vigilant and duly admonished patriotism of our fellow-citizens, than that the evil should increase until it becomes necessary to crush it by the strength of their arms. I am happy that the part which I have myself borne on this occasion receives the approbation of your House. For the discharge of a constitutional duty, it is a sufficient reward to me to be assured that you will unite in consummating what remains to be done. I feel, also, great satisfaction in learning that the other subjects which I have communicated or recommended, will meet with due attention; that you are deeply impressed with the importance of an effectual organization of the militia; and that the advance and success of the army under the command of General Wayne is regarded by you, no less than myself, as a proof of the perseverance, prowess, and superiority of our troops. G. WASHINGTON. TUESDAY, December 2. The SPEAKER laid before the House a letter from the Secretary of the Treasury, stating his intention of resigning his office on the last day of January next, and which he now communicates, in order that an opportunity may be given, previous to that event, to institute any further proceedings which may be contemplated, if any there be, in consequence of the inquiry during the last session, into the state of the Treasury Department; which was read, and ordered to lie on the table.[55] THURSDAY, December 4. _Thanks to General Wayne._ Mr. W. SMITH wished to make his promised motion, which he prefaced by observing that he had varied it at the request of several gentlemen. In the original motion, he had particularly noticed the diligence of the General in disciplining his army to the nature of the service in which they were engaged, and his fortitude and perseverance in encountering the difficulties which opposed his march through a wilderness. Though he and many others were ready to acknowledge in the fullest manner the merits of the General in those important particulars, yet as they were not matters of general notoriety, and as unanimity on an occasion like the present was extremely desirable, he had now confined the motion to the brilliant action of the 20th August. Mr. SMITH concluded with saying, that as he had no doubt the services of the army had made the same impression on the House as they had on him, he trusted the motion he was about to make would be honored with a unanimous vote. He then moved the three resolutions, as follow: _Resolved_, That the thanks of this House he given to Major General Wayne for the good conduct and bravery displayed by him in the action of the 20th August last with the Indians. _Resolved, unanimously_, That the thanks of this House be given to the brave officers and soldiers of the legion under the orders of Major General Wayne, for their patience, fortitude, and bravery. _Resolved_, That the thanks of this House be given to Major General Scott, and to the gallant mounted volunteers from the State of Kentucky, who have served their country in the field during the late campaign, under the orders of Major General Wayne, for their zeal, bravery, and good conduct. Mr. GILES foresaw many bad consequences that might ensue from the practice of giving opinions of men. One part of the House might be for a vote of thanks, and the other against it. He should vote for the proposition, but wished that some mode might be adopted for expressing the general opinion of the House against the practice. Mr. KITTERA was for restoring the clause respecting the vigilance of General Wayne in attending to the discipline of his troops. Mr. HILLHOUSE hoped that the resolutions would not be adopted. He should go farther than the gentleman from Virginia (Mr. GILES) and vote against them. The House in their answer to the PRESIDENT, had expressed their approbation, and that was enough. It was not the business of that House, but of the Executive, to express such things. Mr. H. had voted most cordially for that part of the Address respecting the Western army. The Answer to the Speech of the PRESIDENT would always afford a good opportunity of conveying these kind of matters. It would immediately become necessary to give thanks in every case; and not to give them will be regarded as an implied censure. He trusted that the gentleman would withdraw his motion, and that the House in this way would get rid of it. He had, and he repeated it again, a high sense of the merit of the officers and soldiers of the army under General Wayne, but he had said so already in the Address to the PRESIDENT. It had been urged, as a precedent for this measure, that it was usual to thank the Speaker. This was a mere ceremony. He wished that it had never come into practice, but since it had been so, he should always agree to the vote of thanks. Mr. MURRAY thought that we might trust that the House would always have too much prudence to abuse their thanks, by giving them improperly. By way of precedent Mr. M. read a vote of the State of Virginia, thanking Governor Lee for his conduct in the Western insurrection. Mr. NICHOLAS approved highly of the conduct of the troops, but it was only an act of duty. If we send soldiers against the Indians, it is supposed that they will stand to their posts, otherwise the Government cannot be supported even for a month. Mr. HILLHOUSE saw no business which the House had with the proceedings in the State of Virginia. It had been hinted that the army under General Wayne might feel disagreeably, if the resolution should be rejected. With that Mr. H. had no business. He acted on principles without regarding the feelings of individuals. Mr. W. SMITH agreed with gentlemen that the principal object of the House was to legislate; but it did not follow that they were to be confined merely to legislation. Every Legislative body exercised the right of opinion in cases where no act was to follow. This House has frequently exercised it: the answers to the PRESIDENT's Speech; the answer to the King of the French on his acceptance of the Constitution of ninety-one; the opinion of the House on the merits of that constitution; the vote respecting Benjamin Franklin; the vote of last session in reply to a letter from the Committee of Public Safety of France; the votes of thanks to the Speakers, were precedents on the journals which refuted a contrary doctrine. It had been said that the latter case was a mere matter of form. Mr. S. thought differently, and if ever he was in that House when a vote of thanks should be proposed to a Speaker who had no claim to it, he should feel it his duty to oppose it. Gentlemen apprehended that this practice might lead to innumerable difficulties hereafter. But every House would exercise its judgment and discretion. Members would not be so rash as to propose the thanks of the House where serious opposition was expected, nor would the thanks be voted unless well merited. He was unwilling as any member to make the thanks of the House too cheap; but all must confess that if ever there was an occasion where they were properly called for, this was one. To deny the right or expediency of the practice was in fact to strip the House of one of its most agreeable functions, that of expressing its gratitude. It had been advanced as an objection, that the two Houses might differ; one might vote thanks and the other censure, in the same case; but that might happen in other cases where the propriety of expressing an opinion was admitted; in answering the PRESIDENT's Speech in the State Legislatures, where thanks were frequently voted, the two branches might differ; that was never deemed an objection to the practice; each House expressed its individual opinion. Mr. SMITH said, if the House had been sitting in September last when the account arrived of this victory, would the members have then felt as coldly as they now do? No: he was convinced that in the moment of joy and gratitude, they would have unanimously voted thanks to the army without the least hesitation; but they have since had time to cool, and the impression is worn away. Gentlemen should consider the hard services of that army; how badly paid they were; the nature of the country they were in; and then determine whether the brilliant action of the 20th August is to go unrewarded? To appreciate truly the merits of that army in obtaining so signal a victory, let the House reflect on the consequences of a defeat: the army disbanded and broken up; the frontiers exposed to the ferocious savages; the combination of the tribes more cemented and formidable; an expensive, long, and bloody war. What is now our prospect? The frontiers protected; the combination of the tribes dissolved, and peace with them all a probable event. Before, therefore, the motion which he had made could be got rid of, it was incumbent on the gentlemen on the other side to show, either that it was improper in any case whatever to pass a vote of thanks, or that this was not a case entitled to them; to do the first they must establish, in the face of precedents innumerable, a doctrine destructive of one of the most amiable privileges of the House; to do the last, they must express a sentiment which would, he was persuaded, be repugnant to the sentiments of all their constituents, for throughout the United States there was but one opinion on this subject, and that was in unison with the motion. Having made the motion after due deliberation, he certainly should not withdraw it; but would submit it to the good sense of the House. Mr. COIT moved the previous question. He thought the practice of dangerous consequence. It might produce much uncomfortable proceeding in that House. He was seconded by a number of members. Mr. PARKER felt the highest esteem for the services of the Western army. He was intimate both with General Wayne and General Scott; but he disapproved of the practice upon principle. It was wrong in Mr. MURRAY to quote the proceedings in the Legislature of Virginia, where the Governor was in authority a mere cipher, because the two cases did not apply. The Federal Government was on a quite different footing, a mixture of monarchy, of aristocracy, and of democracy. The PRESIDENT represented the monarchical part. It was his business to give thanks, if requisite. If he himself was an officer in that army, Mr. P. said that he should be satisfied by the first thanks, those in the answer to the PRESIDENT. He would be hurt by the second as unconstitutional. What if, in the mean time, General Wayne and his army may have committed some error that requires an inquiry, and the House are to go into it with this vote of thanks staring them in their face! It had been said by Mr. SMITH, that if we had been sitting in September, when this news arrived, a vote of thanks would have been passed immediately and unanimously. I believe no such thing (said Mr. P.) We should have recommended such a step to the PRESIDENT. Mr. GILES said, that if there ever could have been any doubt as to the impropriety of the resolution, that was now removed, (alluding to the speech of Mr. PARKER.) He thought that the gentleman (Mr. COIT) who moved the previous question had acted from the best motives. Two gentlemen (Mr. GILES referred to Mr. SEDGWICK and Mr. AMES) had recommended an appeal to _feeling_. We are sent here to reason. A gentleman (Mr. SEDGWICK) says that he has feelings which he cannot express. Let him strive to express them. It is not expected that a member is to express all that he may feel on every subject. Mr. MURRAY said he thought the present resolution proper, unexceptionable, and as the fate of this question would have an effect on the motion for thanks to the militia, which he brought forward yesterday, he hoped it would succeed, and that its mover (Mr. SMITH, of South Carolina) would not withdraw it. Gentlemen who are against the vote have talked of precedent. If example would serve their feelings with a stimulus, he would take the liberty of calling their attention to a page he had in his hand, in which they would find that some of our constituents have got the start of us, for the House of Delegates of Virginia had very properly considered the conduct of their Governor (Mr. LEE) in a light which merited their thanks for his acceptance of the command of his fellow-citizens against the insurgents. Mr. M. read the vote from a newspaper, which was a unanimous one. He said he considered this circumstance as extremely auspicious to both votes. He said he had no objection to consider the practice as founded in principles which would bear examination. He thought it more necessary in the administration of our Government--the great basis of which was public opinion--than in that of any other which he had read or heard of. Here our theories have made a bold appeal to the reason and feelings of our fellow-citizens. Neither titles, nor hereditary honors, nor crosses, nor ribbons, nor stars, nor garters, are permitted or endurable. Neither would they be accepted here were they offered. We had but two ways, as far as his knowledge then served him, of rewarding or acknowledging great displays of public virtue. One way is by pay in money; the other by thanks expressed by vote, or presented and perpetuated in some memorial, as in a medal. The first is unequal; as the fortunes of men differ, so would such reward not be equally valuable to all its objects; and were it practicable to apportion this reward agreeably to the fortunes of men, there is a something ill-assorted in it with the idea of honorable ambition; nor did he think there was any good man who had a spark of what is called sentiment in his bosom, who would not say the reward was not only lame for want of uniformity, but defective in point of taste in its species. He believed much in the sense of duty as a motive to good and reasonable services, and that an enlightened mind would feel the close alliance between interest and duty; but he held reward to be essential, politically considered, to the practice of great virtue, taking men as you find them. Not that money can be an adequate reward; it was therefore that he wished to see a style of acknowledgment derived both from the genius of the Government and congenial with the passions which work on the side of virtue--a mode as far removed from mere avarice as it was nearly associated to the movements of the most elevated minds. He readily yielded his belief that the gentlemen who were unwilling to adopt the practice fully admitted the merits to which they did not think it expedient to give a vote of thanks; but the precedent, founded expressly on the principle, that in no case of the greatest events are we to give thanks to the agents in them, will absolutely strip the Government of the only power its constitution admits of conferring deserved distinction. He thought that public gratitude was a great fund, which if judiciously and delicately economized, might be rendered a source of great and good actions. It is an honor both to the nation that can feel and express it, and to those who receive it. He did not think it ought to be lightly drawn on, and hoped a line which it was more easy to conceive than draw, would be adopted by the House to save the Legislature from those perilous occasions which would lessen its value, and that no member would ever move a vote of thanks but upon the happening of some event so strikingly great and useful as to carry but one opinion. The two events designated at present (for he saw both votes were to have one fate) were great, highly interesting, and carried but one opinion. The army under General Wayne had gained a brilliant victory. It was, he believed, the first great victory that had attended the arms of the United States since the adoption of the constitution. That army merited the thanks of their country, and we may say so. They had not only gained victory and fame, but had earned them in a solitude where the voice of fame could not be heard; in a profound wilderness, where neither the soothings of just ambition can reach them, nor the smiles of social and civilized life can comfort them after their severe labors. The militia, both officers and men, in "quelling the insurrection," had displayed the wisdom and virtue which the constitution had anticipated; had eminently deserved the most public testimony to their good conduct. Shall we, as we certainly feel this to be true, be deterred from expressing what we feel, because the folly of a future moment may possibly betray us into an undue multiplication of thanks, or because we may be harassed by a fatiguing succession of calls upon our gratitude? There could be little fear that great events would crowd too fast upon our feelings, and take up our time by applause, and he believed his constituents would readily admit the importance of two such events as some excuse for the time we consume in celebrating them. In favor of the principle, we are supported by the example of the old Congress, by the practice of all nations, and by the known character of human nature in all cases and everywhere. The ancients and the moderns, by a variety of inventions and of policy, analogous to our object, endeavored to enlist all the passions in the public service. The old Congress understood the springs that work in great events, and though there was in the glorious revolution which they guided, an ardor in the public mind that needed little aid, they did not disdain an appeal to the just pride and ambition of the individual; that the motives to public virtue might be multiplied, they in many instances took care that great events and services should be attended by some small but inestimable memorial. Mr. AMES.--The apprehensions of the House have been attempted to be alarmed, as if they were pushed to adopt hastily and unguardedly some dangerous new principle. The practice of all public bodies, without exception, has been to express their approbation of distinguished public services. Instead of establishing a new principle, the attempt is now made to induce us to depart from an old one. Nay, the objection taken altogether is still more inconsistent and singular, for it is urged, the answer of the House to the PRESIDENT's Speech has already expressed our approbation of the conduct of General Wayne and his army. It is, say they, superfluous to express it again. The argument opposed to the vote of thanks stands thus: It is a dangerous new principle, without a precedent, and without any just authority from the constitution, to thank the army; for, the objectors add, we have in the answer to the Speech expressed all that is contained in the motion. It is unusual to quote precedent, and our own recent conduct, to prove a motion unprecedented, and to prove a measure new and dangerous because it has been adopted without question or apprehension heretofore. It is simply a question of mere propriety; and is it a novelty, is it any thing to alarm the caution of the House, that such questions are always to be decided by feeling? What but the sense of propriety induces me to perform to others the nameless and arbitrary duties, and to receive from others the rights which the civilities and refinements of life have erected into laws? In cases of a more serious kind, is not sentiment the only prompt and enlightened guide of our conduct? If I receive a favor, what but the sentiment of gratitude ought to direct me in my acknowledgments? Shall I go to my benefactor and say, Sir, I act coolly and carefully; I will examine all the circumstances of this transaction, and if upon the whole I find some cause of gratitude, I will thank you. Is this gratitude or insult? The man who affects to hold his feelings, and his best feelings back for this cold-blooded process of reasoning, has none. He deceives himself, and attempts to deceive others, if he pretends to reason up or to reason down the impressions which actions worthy of gratitude and admiration make upon his heart. Was it necessary to wait for the joy and exultation which the news of the victory of General Wayne instantly inspired, till we could proceed with all due phlegm and caution to analyze it? The gentleman from Virginia (Mr. NICHOLAS) has not even yet received the impressions which are so natural and so nearly universal; for he has insisted that the army has only done its duty, and therefore it is improper to express our thanks. Indeed, it has done its duty, but in a manner the most splendid, the most worthy of admiration and thanks. That gentleman has also expressed his doubts of the very important nature of the victory, and one would suppose it was thought by many a very trivial advantage that is gained. It is such an one, however, as has humbled a victorious foe; as has avenged the slaughter of two armies; as gives us the reasonable prospect of a speedy peace. Can we desire any thing more ardently than a termination of the Indian war? A soldier, of all men, looks to this kind of recompense for his services; and surely, to look to the approbation and applause of his country is one means of keeping alive the sentiments of citizenship, which ought not to be suffered to expire even in a camp. Shall we make it an excuse for refusing to pass this vote, that we establish the principle of thanking nobody? Is not this, as a principle, as novel, as improper, as that which alarms our opponents? And shall we establish it as a principle against the known practice of other assemblies and of this, and against the intrinsic propriety of the case, merely because we think our discretion will not be firm enough in future to prevent the abuse of the practice? Scarcely any abuse could have a worse influence than the refusal to adopt this vote, because, should the negative prevail, what would the army believe? Would they not say, a vote of thanks has been rejected? It is said we have not done much, and what we have done is merely our duty, for which we receive wages? The debate has taken such a turn, that I confess I could have wished the motion had not been made. For the most awkward and ridiculous thing in the world is to express our gratitude lothly. But at least it offers to those who fear that votes of thanks will be too frequent, some security against their apprehensions. Would any man risk the feelings and character of his friend by an attempt to force a vote of thanks by a bare majority through the House? No, an ingenuous mind will shrink from this gross reward. If there is any force in the precedent it is feared we are now making, it will operate more to deter from than to invite the repetition. Mr. DEARBORN was in favor of the original motion. In addition to some remarks relative to the Republicanism of the idea of the Representatives of the people thanking the armies of the people for their prowess and victories, he compared the argument against the resolutions on the score of abuse to a miser's excusing himself from the practice of charity, lest he should bestow it on unworthy objects. Mr. RUTHERFORD was opposed to the previous question. He hoped the resolution of thanks would pass without a dissenting voice. The previous question was now called for, by five members, viz: "Shall the main question to agree to the said resolution, be now put?" And On the previous question, "Shall the said main question be now put?" it was resolved in the affirmative--yeas 52, nays 36. And then the main question being put, that the House do agree to the said resolution, it was _Resolved, unanimously_, That the thanks of this House be given to the brave officers and soldiers of the legion under the orders of Major General Wayne, for their patience, fortitude, and bravery. _Resolved, unanimously_, That the thanks of this House be given to Major General Scott, and to the gallant mounted volunteers from the State of Kentucky, who have served their country in the field, during the late campaign, under the orders of Major General Wayne, for their zeal, bravery, and good conduct. _Resolved_, That the PRESIDENT OF THE UNITED STATES be requested to transmit the foregoing resolutions; and that Mr. WILLIAM SMITH and Mr. MURRAY be appointed a committee to wait on the PRESIDENT therewith. On motion of Mr. MURRAY, _Resolved, unanimously_, That the thanks of this House be given to the gallant officers and privates of the militia of the States of New Jersey, Pennsylvania, Maryland, and Virginia, who, on the late call of the PRESIDENT, rallied round the standard of the laws, and, in the prompt and severe services which they encountered, bore the most illustrious testimony to the value of the constitution, and the blessings of internal peace and order; and that the PRESIDENT be requested to communicate the above vote of thanks in such manner as he may judge most acceptable to the patriotic citizens who are its objects. _Ordered_, That Mr. WILLIAM SMITH and Mr. MURRAY be appointed a committee to wait on the PRESIDENT with the foregoing resolution. TUESDAY, December 9. _The Mint._ The House then took up the motion of Mr. COIT, relative to the Mint. The letter of Mr. Rittenhouse, referred to yesterday, was again read. Mr. BOUDINOT drew the attention of the House for some time, by a series of the most interesting observations. He went to the Bank of the United States to inquire for cents. He was told that there were none to be had, because the Bank could not get them from the Mint. He then went to the Mint, where he was informed that cents were not coined faster because the officers of the Mint did not know where to get them vented! He said that this Mint cost twenty-four thousand dollars per annum, and every cent coined there cost the public several cents, though he could not exactly tell how many. In New Jersey far more cents had been coined in a few months than had ever been coined altogether at the Mint of the United States, and this had been done at one-fortieth part of the expense which the Mint of the United States has cost. Several other members adverted to the prodigious inconvenience which is felt all over the Union for want of copper coin; and it appeared to excite some curiosity, on what foundation the officers of the Mint said that they could not get their cents vented. It was remarked by Mr. W. SMITH that, except as to Philadelphia, the Mint is of little or no use whatever. The cents given out never go farther than the city. A committee of three members were appointed to examine and report on the state of the Mint, and what means may be used to render the institution more beneficial to the United States. WEDNESDAY, December 10. An engrossed bill making appropriations for the support of Government, for the year one thousand seven hundred and ninety-five, was read the third time, and passed. MONDAY, December 15. Two other members, to wit: from Virginia, JOHN PAGE; and from North Carolina, BENJAMIN WILLIAMS, appeared, and took their seats in the House. TUESDAY, December 16. _Pennsylvania Insurgents._ It was then moved and seconded that the House should go into a committee, on the report of the select committee, on that part of the PRESIDENT's Speech which recommended compensation to the sufferers by the insurgents in the Western counties. The House accordingly went into a committee, Mr. COBB in the chair, and the report was read. In the clause for making compensation to officers of Government, and other citizens, Mr. NICHOLAS was for striking out the three last words, and restricting indemnification to the officers of Government, as the additional words would make room for a set of claims which never could be satisfied or put to an end. It is now ascertained that the majority of the people of the four western counties have always been in favor of Government; but, since it is so, they ought to have suppressed the insurrection, and saved the expense of sending an army into that country. But as they did not do so, Mr. N. did not see what claim they had for compensation any more than the sufferers in the war with Britain. Mr. FINDLAY thought that sound policy required an indemnification to the sufferers. Mr. HILLHOUSE was in favor of the report of the committee as it stood. The whole affair was but a trifle. He understood that the damages done by the rioters did not altogether exceed twenty thousand dollars; and that three-fourths of this sum was for losses sustained by officers of the revenue. The rest of the account was for persons who had fought in defence of the officers or who had lodged and protected them. He observed that the whole of the select committee were of one mind upon the subject, and agreed in considering the other citizens as equally entitled to indemnification with the officers themselves. Mr. NICHOLAS was still against the resolutions as originally worded. He did not see any proof of extraordinary attachment on the part of the claimants, nor any peculiar call on the justice of the House in this particular case. Mr. W. SMITH said, that one man had his whole property burned for having, at the hazard of his life, assisted in attempting to defend the house of the Inspector General. A second received the same treatment for having lodged an excise officer; and a third, because he had antecedently been one himself, though he had quitted his employment before the riots began. Mr. S. urged that these were certainly peculiar and pressing cases, and that it would be highly impolitic not to protect such people. Mr. GILBERT hoped that there would be no discrimination, but that all the sufferers would be alike reimbursed. Mr. BOUDINOT proposed a kind of compromise between the original resolution and the amendment by Mr. NICHOLAS. He proposed that the clause should read thus: "officers of the revenue, and other citizens aiding and assisting them." He was willing to indemnify persons who had actually suffered in defence of Government, but not other persons who might accidentally have been injured by the rioters. Mr. DAYTON was of opinion that some restriction of this sort was necessary. Citizens were in duty bound to support Government, but the latter was not in all cases bound to indemnify their losses. Let any person go through any part of the country wherever British soldiers had marched, and he would find thousands and tens of thousands of people whose property had been utterly destroyed by the wanton barbarity of these troops. Go to another part of the country and you will find people who suffered very considerably by the American soldiers, when Government did not give them an ounce of bread for pounds that they should have had. It was not possible to make satisfaction to all these people. Mr. SEDGWICK said it was extremely disagreeable to attempt detaining the committee with this subject, to which they discovered such general inattention, that he did not know if it had ever been equalled in any popular assembly before. He again adverted to an argument which he had used on a former day, viz: that when a private person, at the risk of his property and his life, comes forward to support the execution of the laws, his service was much more meritorious, and demonstrated a much greater degree of patriotism than that of a revenue officer who was paid for his share of the business. He inferred that the sufferers by the Western rioters should all be equally indemnified. Mr. HILLHOUSE repeated some of his former reasons for wishing to discharge the whole claims. He was therefore against the qualified amendment of Mr. BOUDINOT. Mr. SWIFT was against the amendment of Mr. BOUDINOT, because he was against giving, at present, any thing at all. He would suffer the persons who have sustained injury from these rioters and trespassers to prosecute them at law. If they cannot get any retribution in that way, then, and not sooner, you may begin to consider upon the propriety of giving any compensation; but till the parties aggrieved have done their utmost in that way, he would have no steps whatever taken of the nature proposed. It had been alleged that the House might advance money in the mean time to the sufferers, and leave them to their actions against the rioters. But if you pay a man for his damages, what security is there that he will follow up his suit; or, is it not evident that such previous compensation will greatly damp his ardor? Mr. S. said, that if previous notice were given of Government being ready to pay the damages, in case they could not be recovered before a court of law, there certainly never would be found a jury to bring a verdict against a private person. For this reason Mr. S. was entirely against the resolution at this time. What he might do hereafter, he would not say. There was only one case wherein he could be induced to advance money. If any of these persons could prove that they had been reduced by the rioters to such poverty that they were unable to prosecute their claims in a court of law, it might then perhaps be expedient to advance for them the expenses of the suit. But the interposition of the House at this period would affect the claims very greatly, and thus confer on the rioters themselves a favor which Mr. S. was very unwilling to bestow, as he would wish them prosecuted to the utmost. Before the meeting of next Congress, it might be ascertained what could be made of these prosecutions, and then, and not till then, Mr. S. would think it proper to enter on the discussion suggested by the report of the select committee. Mr. DEXTER drew a distinction between persons suffering by an open enemy, whose approaches they could not avoid, and those who suffer voluntarily. The claim for compensation was complete, and we should do the parties injustice if they did not receive full satisfaction. Mr. BOUDINOT withdrew his amendment, under the idea that the particular cases would hereafter come before the House. The question therefore reverted to its former shape, shall the words "and other citizens" be struck out. Mr. DAYTON, in opposition to Mr. DEXTER, considered the Government of the United States as more justly bound to make reparation to the people who suffered by the robberies and conflagrations perpetrated by British soldiers than to compensate the sufferers in the four Western counties; for those whose houses were burned, and whose property was destroyed by the British, had no quarter to which they could look for relief except to their own Government. The people to the Westward, on the contrary, had it in their power to prosecute the rioters, who were well able to pay them. Mr. DEXTER had said that the losses of the persons ruined by the British were upon record. Perhaps, said Mr. DAYTON, they will always be on record; but nobody supposes that we shall ever indemnify these losses. He thought it prudent for the present to restrict relief to the officers of Government alone. The question was about to be put, on the amendment proposed by Mr. NICHOLAS to the first resolution in the report of the select committee, when Mr. SCOTT rose. He said, that if there had been a proposal devised to weaken the hands of Government in the four Western counties, there was no one thing which could have effected that point so completely as the striking out of these three words, "and other citizens." If gentlemen would only reflect for a moment, he would ask them how they thought it possible that any civil officer, after the adoption of such an amendment, would ever be able to raise a posse in that part of the country? Who would hereafter venture to defend the life of an excise officer, when the world has been told, that individuals do it at their own hazard, and cannot look to Government for any compensation? Who will hereafter admit an excise officer into his house, if that house may, with impunity, be burned about his ears? As soon as this amendment has gone abroad, every body, instead of assisting the officers of the revenue, will strive to keep out of their way, and have nothing to do with them. If there never had been any thing said about making a compensation to other citizens, perhaps there might have been little harm, or at least there would have been much less harm by forbearing to give them relief. But when the subject has been fairly brought forward by the PRESIDENT in his Speech, and when it had been debated at full length in this House, when so much notice had been attracted, and so many hopes have been thrown out, to give, in the face of all this, a direct negative, would be the most impolitic step that could possibly be thought of. The committee then agreed to reject the amendment, and divided on the first resolution as it originally stood in the report of the select committee--yeas 46, nays 37. The second resolution was then put for enabling the PRESIDENT to draw the sum of ---- dollars for the relief of the sufferers--yeas 41, nays 37. Mr. SMITH then said, that seventeen thousand dollars had been mentioned in the committee as sufficient to pay the whole damages. He proposed to fill up the blank with eight or ten thousand dollars, on account, till they should see what was to be the final amount of the claims. Mr. HILLHOUSE and Mr. KITTERA both objected to this proposal. The committee rose. The Chairman reported that the committee had agreed to the report of the select committee without any amendment. The House were about to take up the report, when Mr. SEDGWICK said, that he was really concerned at thinking that there could have been any division at all about such a thing. He still hoped that a measure might be adopted which would produce unanimity on the subject, and would have a much better effect than such a division. The bill appropriating one million one hundred and twenty-two thousand five hundred and sixty-nine dollars and one cent for the expenses of the militia in the Western expedition, was read a first and second time, and referred to a Committee of the Whole to-morrow. WEDNESDAY, December 17. _Pennsylvania Insurgents._ The House resumed the consideration of the report of the select committee on that part of the PRESIDENT's Speech respecting compensation to the sufferers by insurgents in the Western counties in Pennsylvania. When the first of the two resolutions in the report was read, Mr. SWIFT objected to the granting of immediate indemnification, on much the same ground as he adopted yesterday in the Committee of the Whole. He inquired how a person, with a compensation from that House in his pocket, could appear in a Court of Justice to prosecute a rioter for damages, when the Judge, the jurors, and every one in Court knew he had been indemnified? He enlarged, at some length, on the great pity that it would be to let those rioters and rebels escape so; and, after they had cost Government above a million of dollars, that they should not be obliged to pay these sixteen or twenty thousand. Mr. LYMAN hoped that the House would give the money, and have done with the business. Mr. NICHOLAS.--The more he considered this question, he was the more convinced that the House are involving themselves in embarrassment. Are you not told (said he, alluding to what had been urged by Mr. SWIFT) that, by paying these claims in the first instance, you are cutting the sinews of civil process? In any future commotion of this kind a person who has lodged an exciseman may have his house burnt from private spite against him, and not because he interfered in favor of a revenue officer. Then you are bound, by this precedent, to indemnify him; and how can you distinguish what was the real motive to that outrage? He believed it impossible ever to bring Government to such a state of perfection as that all losses suffered in defence of it should be indemnified at its charge. Where is the difference between this case and that of indemnifying the losses at sea by the British? Yet that proposal was rejected. Where is the gentleman who will say that he believes people will put themselves to the trouble of prosecuting, when they know that the money, if recovered, must go into your pockets again? Let us put the case, that a jury in the Western counties, where these points must be tried, shall find any of these people entitled to less than what you have bestowed upon them? Can you then recover the money back again? It is said that this resolution embraces but a few instances, and these of the most meritorious kind; but, in reality, it includes all citizens who have suffered. What will this comprehend, or, rather, what will it not comprehend? He supposed that the design was that the commissioners appointed by the PRESIDENT for that effect should be sent into the Western counties to ascertain the damages. Mr. N. concluded by declaring that nothing which he had heard could induce him to go to the extent proposed; and, by giving money at present, the prosecutions would all come to nothing. Mr. MURRAY hoped the first resolution would succeed. He really thought that the reasoning of the gentleman from Virginia (Mr. NICHOLAS) would extend to the exclusion of General Neville. Mr. MADISON remarked, that great respect was due to this proposition, both on account of the interesting occasion that produced it, and of the quarter from whence it came. But the more he revolved the subject in his mind, the more he was convinced that great circumspection was requisite, and that the House, for many reasons, ought to take as much time in deliberating upon what they ought to do as the nature of the subject will admit. He recommended the proposal of some gentlemen to let the affair lie over to next session. It is no doubt proper to encourage a spirit for suppressing insurrections, and this measure is certainly calculated to promote that spirit. But, in his judgment, Mr. M. feared that it would likewise encourage insurrections. A great body of people were commonly engaged in such disturbances who were not worth hanging, and to whom an established Government usually held out an amnesty. By this means great multitudes came in, and received pardon before the operations of chastisement began. The mob, therefore, would in this case reason thus: As a crowd, we have a good chance to escape the gallows. Let us then plunder as fast as possible, because Government will disburse the loss, and we shall not be forced to disgorge our booty. Mr. M. thought that speculations of this kind might be entertained by future insurgents, if the House were instantly to vote a complete indemnification to the sufferers. Mr. M. held the highest respect for the arguments and feelings of gentlemen who espoused the other side of the question. What he himself had just now suggested, he did not regard as decisive considerations, but yet as considerations of weight. His own impression was to let the matter lie over till the next session, and then those who had done their best in prosecuting would come forward to that House to claim compensation under the most auspicious circumstances, and all which they shall have recovered will be saved to the State. Mr. BOUDINOT differed in some degree from the gentleman who spoke last. He was for doing something at present, though not so much as was implied in the first resolution. He recapitulated the danger that would arise from slackening the efforts of people to prosecute the rioters. He entirely dissented from the principle laid down by some gentlemen, that Government was in all cases bound to indemnify the losses sustained by its citizens from foreign or domestic outrage. In the war with Britain there were great numbers of people who chose rather to fight it out to the last, and permit their houses to be burnt by the British troops, than accept of terms which they might have obtained. Mr. B. again proposed the amendment which he laid yesterday before the committee, viz: that after the words "and other citizens," there should be inserted, "personally aiding and assisting them." This he thought sufficient in the mean time. Mr. HEATH declared himself against the resolution as unsound policy. He feared that it may be an encouragement to future mischief. When an officer of the revenue finds that he is to be so easily paid--to be paid a double value for the burning of his house--will not this slacken his ardor in defence of it? Who has not heard of the rebellion of _Shays_, where a great deal of property was destroyed? People there began at the right end of the business. Lawsuits were commenced against the rebels, and damages were recovered. Pray, would it not be a proper bar to the recovery of damages in a court of law to say Government has paid you? Will not these people who suffered by the Tories in the last war come next, with open mouths, and demand indemnity? We shall next have those citizens who lately suffered by the pirates of Britain hastening to demand compensation. Mr. H. considered this as the most important question which had come before Congress during the present session. He concluded by saying that he would bear his testimony against this resolution. Mr. CARNES was of the same opinion. Mr. MURRAY had said that it would be impossible to find a jury in the Western counties who would give honest damages against the rioters, because almost every body was on their side, and there would be no possibility of finding a jury who would pass an equitable verdict, unless recourse was had to the odious and execrable practice of packing juries. This remedy was worse than the disease; and from this Mr. MURRAY inferred the futility of compelling the sufferers to wait for the result of hopeless prosecutions, and the propriety of immediately paying the damages. Mr. CARNES asked the gentleman whether his knowledge as a lawyer did not inform him that an upright jury might be selected without having recourse to the infamous expedient of packing? When a jury were chosen, the prosecutors would be at liberty to except against them; and if they were either men of bad characters, or in any shape connected with the rioters, these exceptions would be admitted, and this process would go on till a respectable jury could be chosen. This was quite distinct from any thing like packing. He considered this explanation as a satisfactory answer to the arguments advanced by the member from Maryland; and he entertained a better opinion than that gentleman seemed to possess of the jurymen in the Western counties. Mr. C. foresaw many bad consequences that might possibly flow from this alacrity in discharging damages. What if there should be a collusive insurrection between two parties, and then, instead of twenty thousand dollars, we shall have to discharge a bill of perhaps an hundred thousand, or twice that sum? He considered it as good a plea in bar of prosecutions to say, Government has paid you. But if we are so fond of indemnifying people who suffer losses, the House may begin by satisfying the settlers in the back part of Georgia, where the Creeks within the last ten months only have done mischief to the extent of five or six hundred thousand dollars. He should be glad to hear the House disposed to indemnify these people, but it was what he did not expect. He could not see why these sufferers were not as much entitled to compensation as the others in the four Western counties. As to the Creeks, the State of Georgia was neither at war nor peace with them. Peace it was called, but in the mean time the savages were committing incessant murders. Reverting to the question before the House, Mr. C. said, that it would be most impolitic to proceed at present in the payment of these losses; and he was convinced that the PRESIDENT himself, when he made the reference in his Speech, did not intend that the thing should be acted on immediately. Mr. C. hoped that there would be a delay for the present session. The best way to ascertain the real extent of the damages was to leave the matter to the decision of a jury. When juries have determined this point, then, if the rebels cannot pay, give satisfaction to the sufferers in terms of the verdicts. The member from Maryland had said, that damages could not be accurately specified by a jury. Yes. If you pay nothing at present, but, if you pay at present, the action is barred. Mr. C. had not entirely formed his opinion on the question of compensation, but he was satisfied that it was better to make a delay. Mr. DEXTER, in reply to the supposition that this compensation would encourage future insurrections, gave it as his opinion that it would be the means of preventing them. An insurgent would say to himself, "I might escape from the prosecution of my neighbor, but, when the United States assist him, I cannot stand against both." Mr. D. conceived that the meaning of the resolution had been mistaken, and he placed the question in a light entirely new and unnoticed by any former speaker. Gentlemen had spoken as if the resolution went to the immediate and complete discharge of the whole damages, and upon this many arguments had been founded. This idea was an entire mistake, for the first resolution went only to ascertain the real extent of the damages, and did not pledge the House to pay the total amount of them. He considered this as a very material distinction, and which, in a great measure, obviated many arguments on the opposite side of the question. Mr. D. did not think, with the member from Georgia, that the same rule applied to the south-western settlers of that State and to parties in the present resolution. The people on the frontiers have "placed themselves in a place of danger knowingly." The Creeks were an open enemy, but the insurgents were an unexpected one. Mr. D. proceeded at great length to make a distinction between the two cases, and concluded by saying that the second resolution, which, as well as the first, he hoped would pass, went only to a temporary relief. Mr. HARTLEY also placed a part of the question in quite a different light from any former gentleman. Since he had been a member of that House he had found occasion to read a good deal of law, and, from that knowledge of law, he had, yesterday, in the committee, informed the House that neither General Neville nor any body else could obtain damages against the rioters in a civil action. All the arguments, therefore, which had been advanced as to whether equitable damages could be recovered before a jury, proceeded upon an error, because no civil process whatever would lie in the case. If the House were disposed to doubt his own opinion, Mr. H. could now give them that of the first law officer in Pennsylvania. Since yesterday Mr. H. had consulted that gentleman, who gave it as his express opinion that the greater crime absorbs the lesser; that a case of this kind is only a criminal action, and that no penal damages can be recovered. The crime is liable to a capital punishment; he did not mean to death; but to such a degree of punishment as the offence should be found to deserve. Mr. H. added, that if people had known that they were to be indemnified for their losses by the United States, a much greater number would have stood by the law than did so. It was not the fear of personal danger which prevented people from resisting the insurgents; it was apprehension of having their barns burned down in the night time. Mr. DEXTER interrupted Mr. HARTLEY to inquire whether, by the laws of this State, the property of an insurgent is forfeited for his crime? Mr. HARTLEY replied that it was not. Mr. DEXTER then remarked, that it was very absurd to say to a man, "You are an insurgent; you have committed a great deal of mischief, but you are so very deep an offender that I cannot recover damages." Mr. HARTLEY rose again to give some further explanation, when the SPEAKER announced that he had something to communicate to the House. Mr. HARTLEY sat down, and the SPEAKER said, that he had received from the PRESIDENT some important and confidential communications, which it was requisite to read in the House this day. It did not appear that they would decide on the first resolution at present, and there was not now more time left before the common hour of rising than would be necessary for reading the communications from the PRESIDENT. The debate was instantly deferred, and the galleries cleared. FRIDAY, December 19. WILLIAM IRVINE, from Pennsylvania, appeared, and took his seat in the House. _Pennsylvania Insurgents._ The House resumed the consideration of the resolutions reported on Wednesday last, from the Committee of the whole House, on the report of the committee to whom was referred that part of the Speech of the PRESIDENT OF THE UNITED STATES which relates to the policy of indemnifying the sufferers by the depredations of the insurgents in the Western counties of Pennsylvania. Whereupon, The first resolution being under consideration, in the following words, to wit: "_Resolved_, That the President of the United States be requested to cause an ascertainment to be made of the losses sustained by the officers of Government and other citizens, in their property, (in consequence of their exertions in support of the laws,) by the insurgents in the Western counties of Pennsylvania." The amendment of Mr. BOUDINOT, on which the House had been debating on Wednesday, was read. It was for the insertion, after the words "and other citizens," of the following addition: "personally aiding and assisting them." Mr. HARTLEY then rose, and spoke as follows: I have no great encouragement to speak, when I find that my expressions and language have been totally mistaken, both by gentlemen in this House and by the person who frequently reports the debates. On Tuesday, I had ventured to say, that I thought no great reliance could be had upon the individuals injured obtaining satisfaction by personal actions against the insurgents; that I imagined the civil remedy was merged in the offence of arson against the State, or perhaps a higher offence; that, from the state of things, we could not promise ourselves that the sufferers would be compensated by civil suits. On Wednesday, I mentioned to the House, that, though there had been much discussion, yet, as I considered part of the House to labor under what I held to be a mistake with respect to the _lex loci_, or law of the State, which we were obliged to take into view, I held it my duty to observe, that, the day before, I had said that I thought the smaller offence, that is, the civil injury, had been merged in the greater against society; that the offence, so far as related to the State, would be arson, which had been a capital offence, punishable with death, that the punishment had been mitigated by the alteration of the penal code, but still it was a felony. I noticed that I had formerly read law a good deal with considerable attention, but since I had been in Congress, I had not been able to bestow much time upon it. I said that formerly certain principles or maxims had made impression upon my mind; that, among others, was the one under consideration, that, in arson, the injury to the individual was merged in that against society, or, at least, must give way to the other; and public justice must be done in the first place. I mentioned that I had consulted one of the first law officers of the State, which is true, and he agreed with me in opinion. Indeed, he added, that no reliance should be had upon the personal remedy, but that compensation ought to be made to the sufferers. I have no reason to change my former opinion. Really, when I consider the conduct of the commissioners to those who made their submissions, I should imagine it was the intention of the parties that there was to be an oblivion as well of the civil as the criminal offences to those who submitted; and, as the Legislature has the power to construe the agreement, it becomes her rather to do it with magnanimity than otherwise. Your officers, and those aiding and assisting them, ought to be protected and supported. I will now say, as I did the other day, that the fear of having their houses or barns burned, terrified many a man in the Western country from joining the standard of the law, and forced him to temporize with rebellion. When the officers know that they are to be protected in their persons and property--when the _posse comitatus_ are informed that they are to be regarded in like manner--we may expect energy in the execution of the laws. The law of Pennsylvania is defective, or at least doubtful; and, if the present punishment for arson continues, the Legislature of that State will, I dare say, point out a decided remedy for the party injured against the offender. It becomes the honor and justice of the Legislature to protect and support the officers, and those aiding them. I shall, therefore, vote for the amendment. Mr. VENABLE differed entirely from the gentleman who spoke last. He understood that pardons extended only to the offences against Government. It would, for that reason, be no hardship against the people who had received pardons to prosecute them for civil damages; and, by the statement of the member himself, actions would lie where no public prosecutions had been made. Mr. SWIFT was of opinion that the member from Pennsylvania (Mr. HARTLEY) was most certainly mistaken in point of law, when he imagined that the pardon granted by the commissioners extended, or might be construed to a remission of civil offences. He did not believe it to be in the power of Government to pardon these rioters and trespassers to that length. He did not expect that the gentleman from Pennsylvania would have stood up in the House to recommend an unqualified pardon. When a million of dollars had been expended, were the House to give them fifteen or twenty thousand dollars more? He did not come there prepared to hear of a premium for insurrection. He rejected all idea of so much tenderness for rioters and rebels. Mr. BOUDINOT rejected all idea of the rioters being exempted from civil suits. There was but one exception, where they were executed for their crimes. He had no other view of the matter, but as a question of policy--whether it was expedient, or the contrary, to prosecute these people. He believed that, before the new constitution, the law stood as the member from Pennsylvania represented it. But all this was much from the purpose. By far the greater number of the rioters have accepted the amnesty. Nobody imagines them exempted from prosecution. To prevent any misconception of this nature, the commissioners, in the terms of pardon which they held out, expressly warned the people that they were to be liable to civil actions for the damages committed. It was needless, then, to embarrass the question with more difficulties than naturally belonged to it. He was satisfied that this was a mere question of policy, whether it was better to pay off these people at once, or let them first try the effects of civil actions. Mr. DAYTON rose and asked, "Who shall decide, when doctors disagree?" Who shall declare what is the law, when the learned gentlemen of the bar are so directly opposed to each other? The House (Mr. D. observed) had, by some means, imperceptibly, and, he thought, unnecessarily, been drawn into the discussion of a common law question. Law had been aptly compared to a bottomless pit, and the sooner, therefore, that they extricated themselves from it, the better. Very fortunately, (he said,) there existed no necessity for determining, in the present cases, upon any intricate point of law, as the proposals of amnesty, in their very terms, as well as in their nature, left each individual trespasser liable to suits at law on the part of the friends of good order, for the damages sustained by the one and done by the other. Mr. D. was for allowing those prosecutions to go forward, and was well informed, not only that there was far more than sufficient of the property of the insurgents to make compensation, but that it was probable they would agree together, and make up the whole among themselves, rather than be vexed by lawsuits. He could not agree with those gentlemen who expressed a wish to vote for the whole amount of damages, immediately to be paid from the Treasury. He did not believe with them, that such a measure would promote the dignity, or manifest the justice, of the Government. This would be to enter into an improper compromise with guilt. It would be to make peace with sedition, in a way that might tend to encourage rather than, to discourage it in future. We were obligated, upon principle and precedent, to ensure indemnity to those officers of Government, who, in consequence of a prompt and steady discharge of their duty, had suffered in their property from the resentment of the insurgents. But he wished not to do more, until the result of actions at law could be ascertained. Although the Government may offer a pardon for offences against the public, yet nothing was more clear than that the general amnesty did not, and could not, exempt the seditious offenders from answering to private persons for injuries done to them in their property. Mr. HARTLEY rose to explain. The gentleman from Connecticut (Mr. SWIFT) had mistaken his meaning. He was going on, when Mr. DAYTON rose, and declared that he had never put any such construction on the words of the gentleman, who certainly must have misapprehended him. I did not mean you, sir, (said Mr. HARTLEY,) I said the gentleman from _Connecticut_. You made a mistake of the same kind with me last session. The amendment of Mr. BOUDINOT was, on a division, lost--only twenty-six gentlemen rising when the question was called for. The question on the first resolution was then called for; when it was moved to take the previous question, that is to say, "Shall the main question be now put?" Mr. FITZSIMONS rose. He thought that this discussion comprehended a principle of the most important nature. He trusted that it would not be got rid of in this way. He was not of opinion with those gentlemen who were disposed to waive the question just now, under the notion that they should have an opportunity of voting for it at another time. He believed that the true design of moving the previous question was to lay it aside altogether. This expedient should not answer the end; for, if he had only one other gentleman in the House to second him, he would stand by the matter until he obtained an explicit answer. Mr. MCDOWELL vindicated the propriety of taking the previous question. Mr. SEDGWICK said, that when the British carried on a most unjust war against this country, the Ministry who began it were in time turned out. Their successors had always reprobated the war, but, after the peace, they, notwithstanding, had expended several millions to support the loyalists. While the British had acted with so much liberality, did it become Americans to stick at the paltry sum of seventeen thousand dollars? The House had wrangled so long about this matter, that the very wages which they received for the time spent in this discussion would about have discharged the whole sum in dispute. When a wild, unprincipled, mad attempt had been made to destroy this noble constitution, were the Representatives of this people to make it a doubt whether those who saved it from, perhaps, destruction, were to be indemnified? Mr. S. declared that he felt more unpleasant sensations than he remembered ever to have experienced since he became a member of this House. Gentlemen might argue and argue about this drop in the bucket compared with the ocean. They might go into metaphysical deductions about whether the men who saved this constitution were, some of them, to be reduced to beggary and misery, as the price of having done so. He would bring up the question again and again, until he had the sense of the House again. Mr. S. repeated the following argument, which he, on a former day, had pressed. He asked whether persons who, from the pure, conscious dignity of the republican character, stepped forward to support the Government, did not deserve better of it than excise officers, who were bound to and paid for their services? He was even of opinion that the conduct of the private soldiers in this case was more meritorious than that of the officers. He might be mistaken, but his opinion was so. From this language it is not to be inferred that Mr. S. undervalued the exertions of the officers of the army, or of the excise. He only meant that the less interest or emolument which an individual has at stake in the success of an affair, the greater is his merit in performing it. He asked what better time there was than the present for settling the amount of these claims? Mr. HEATH was for the previous question. He thought the resolution unseasonable at this time. However little the gentleman chose to think of seventeen thousand dollars, they might grow into a precedent for seventeen hundred thousand dollars. Mr. BOUDINOT thought that the seventeen thousand dollars were not the whole of the damages that might be claimed. When commissioners were sent to the Westward, the demand might rise to seventy thousand. Numerous other requisitions might start up. He was for taking the previous question. Mr. DEXTER regretted his necessity to differ from a gentleman (Mr. BOUDINOT) for whose opinions he was in the habit of entertaining the highest respect. He was against the previous question, because he disliked obliquity. Whether he was against or for the first resolution in the report of the select committee, he would give the resolution itself a fair meeting. He then inquired what better time there could be for learning the number and extent of the losses than the present? He again explained, as on Wednesday, that the House appeared to mistake the extent of the resolution, which did not imply any complete indemnification, nor even assure any relief at all. The whole amounted only to the taking of measures for obtaining information. He would not have voted for it, if he had thought that it promised complete indemnification. He thought that no future time could be so proper as the present for deciding. Mr. SWIFT, Mr. KITTERA, and Mr. GILBERT, also spoke. Mr. HILLHOUSE went on the same ground with Mr. DEXTER. He was one of the committee who drew up the resolutions. They never understood that the resolution implied an assurance of complete indemnity to the sufferers. The previous question was called for by five members, to wit: "Shall the main question, to agree to the said resolution, be now put?" And on the previous question, "Shall the said main question be now put?" it was resolved in the affirmative--yeas 52, nays 31, as follows: YEAS.--Fisher Ames, James Armstrong, John Beatty, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Lambert Cadwalader, David Cobb, Peleg Coffin, Jonathan Dayton, Henry Dearborn, Samuel Dexter, Gabriel Duvall, William Findlay, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, James Gordon, Andrew Gregg, Samuel Griffin, William Barry Grove, Thomas Hartley, Daniel Heister, James Hillhouse, William Hindman, Samuel Holten, John Wilkes Kittera, Henry Latimer, Amasa Learned, William Lyman, Francis Malbone, William Montgomery, Peter Muhlenberg, Alexander D. Orr, John Page, Josiah Parker, Andrew Pickens, Thomas Scott, Theodore Sedgwick, William Smith, George Thatcher, Uriah Tracy, Jonathan Trumbull, Philip Van Cortlandt, Peter Van Gaasbeck, Peleg Wadsworth, John Watts, Benjamin Williams, and Richard Winn. NAYS.--Theodorus Bailey, Thomas Blount, Thomas P. Carnes, Gabriel Christie, Joshua Coit, George Dent, William B. Giles, James Gillespie, George Hancock, Carter B. Harrison, John Heath, John Hunter, Richard Bland Lee, Matthew Locke, James Madison, Joseph McDowell, Alexander Mebane, Andrew Moore, Anthony New, John Nichols, Nathaniel Niles, Robert Rutherford, John S. Sherburne, Jeremiah Smith, Israel Smith, Zephaniah Swift, Thomas Tredwell, Abraham Venable, Francis Walker, Paine Wingate, and Joseph Winston. Mr. GILBERT then moved a resolution, the substance of which was understood to be to ascertain whether the losses in the Western counties were incurred in defence of Government, and how far the sufferers were capable to carry on the lawsuits themselves against the rioters. Mr. GILES, was against the amendment, the resolution itself, and the whole mode of conducting the business. He had listened to many long speeches, and been surprised that no gentleman had made the observation which he was now going to submit to the House. [The noise had by this time become so intense, that the SPEAKER rose and reminded the members of a rule that there must be no private conversation while a member addresses the Chair.] Mr. G. then proceeded to declare that he disliked the form rather than the substance of the resolution. If people in the Western counties had suffered injuries, why should not they, as well as every other class of citizens, come to the bar of that House and petition? An inquest was, he imagined, intended, which would unite all the back country in one common interest against the Treasury of the United States. The mode proposed by the report of the select committee was the most exceptionable of all that could have been devised. It was said that this was only an affair of seventeen thousand dollars. What evidence have we that the demand will stop there? Sir, there is none. The mode is, besides, totally wrong. Let persons who have suffered come here in the usual manner. It is said that a gentleman has had his house burned. Let him come here and tell us so. Mr. G. entirely scouted the idea advanced by Mr. DEXTER, that we might inquire into the extent of the losses, without a design to discharge them. If you do not mean to indemnify, why inquire at all? He did not object to relieving the sufferers, but, to erect a board of inquest, under Presidential direction, was what he never would consent to. He again repeated, that he did not mean to dissent from the principle, but from this most exceptionable of all modes for putting it into practice. Let people lay memorials of their losses before the House, which would then see distinctly what it was doing, and examine the evidence on which the claim was founded. He wondered that none of all the speakers in the debate had adverted to this distinction. Mr. HILLHOUSE differed in every particular from the gentleman who spoke last. If petitioners come from the Westward, they are referred to a select committee. They bring all the evidence which they can muster to swell their bill. The committee have no counter-evidence, as we in this House almost never hear more than one of the parties. It is much better to send persons to the spot who can examine the subject on both sides, which we cannot possibly do, and who will be responsible to this House for their conduct. The whole arguments and ideas of Mr. H. were in direct contradiction to every thing advanced by Mr. GILES. He (Mr. H.) was satisfied that, before we undertook to pay the losses of the Western people, it was better, in the first place, to know the extent of them. The resolution amounted to nothing more than the ascertaining of this loss, and Mr. H. could see many good reasons for deferring the payment of a bill until he knew the sum to which it amounted. He could also see reasons why the mode recommended in the resolution was much preferable to that of bringing people so far to the House. Commissioners going to the spot could make themselves perfectly masters of the subject; whereas, if the parties come here, the matter will be decided on _ex parte_ evidence, as it always is. Mr. BOUDINOT considered the resolution as too loosely worded. A gentleman who had been on the expedition, and who had heard or read the report, observed to him (Mr. B.) that he himself came within the resolution, as he had suffered considerably in his business by his absence. Mr. HILLHOUSE explained, that the resolution extended only to actual destruction. The committee never meant to compensate people for the loss which they had suffered by being banished. He was ready, if the House liked it better, to insert in the first resolution the words "property actually destroyed." This would prevent the misapprehension of the gentleman mentioned by Mr. BOUDINOT. The House divided on the amendment of Mr. GILBERT--ayes 39, noes 33. Mr. HILLHOUSE then moved to strike out the word "in" from the first resolution, and put into its place, "by the actual destruction of" their property. Mr. MADISON apprehended that this amendment left the resolution as bad as it was before, if not worse. A person in the Western counties had his horse stolen by the insurgents. But this did not imply the actual destruction or annihilation of the horse. The amendment meant either too much or too little. It certainly could be no improvement on the resolution. After some further discussion, the amendment was agreed to. And the main question being put, that the House do agree to the said resolution, amended to read as follows: "_Resolved_, That the President of the United States be requested to cause an ascertainment to be made of the losses sustained by the officers of Government, and other citizens, by the actual destruction of their property (in consequence of their exertions in support of the laws) by insurgents in the Western counties of Pennsylvania; together with a report of the particular condition of the respective sufferers, in relation to their ability to prosecute their several claims, and recover, at law, satisfaction from the insurgent aggressors." It was resolved in the affirmative. The second resolution on the subject of indemnification was then taken up in the House. Mr. BOUDINOT moved the following amendatory addition: "To aid such of the sufferers as, in his (the President's) opinion, stand in need of immediate assistance, to be accounted for by them in such manner as may hereafter be directed by law." The amendment was carried, forty-four gentlemen rising. The resolution, as amended, is as follows: "_Resolved_, That the President be authorized to draw out of the Treasury of the United States the sum of ---- dollars, to be applied by him to aid such of the said sufferers as, in his opinion, stand in need of immediate assistance, to be accounted for by them in such manner as may hereafter be directed by law." _Ordered_, That a bill or bills be brought in pursuant to the said resolutions; and that Mr. HILLHOUSE, Mr. FINDLAY, Mr. LYMAN, Mr. WATTS, and Mr. WILLIAM SMITH, do prepare and bring in the same. FRIDAY, December 26. Two other members, to wit: JEREMIAH WADSWORTH, from Connecticut; and SAMUEL SMITH, from Maryland, appeared, and took their seats in the House. _Naturalization Bill._ The House again resolved itself into a Committee of the whole House, on the bill to amend the act, entitled "An act to establish a uniform rule of naturalization." Mr. GILES proposed to amend the intended test of a citizen, by adding, after "two witnesses giving evidence as to his moral character," these words: "attached to a Republican form of Government." He thought this test proper, to prevent those poisonous communications from Europe, of which gentlemen were so much afraid. Mr. DEXTER preferred saying, "attached to the Constitution of the United States." To this amendment Mr. GILES had little or no objection. Mr. BOUDINOT did not see the use of either amendment. It was only giving unnecessary trouble. The oath which the person himself must take, was sufficient for expressing his fidelity to the Government of this country. Mr. NICHOLAS considered both the amendment, and the clause to which it was annexed, as unnecessary; and even if in themselves proper, they were misplaced. He thought both equally superfluous. They should have been inserted in the oath of allegiance of the man himself. Mr. DAYTON hoped that the whole clause would be rejected. He should be against it, unless the nature of the evidence was referred to a Court of Justice. He foresaw many difficulties arising to poor men in attempting to get two such witnesses. It might suit extremely well with merchants and men of large capital, who had, he supposed, been alluded to the other day, under the title of meritorious emigrants. He was not so anxious for them as for useful laboring people, who, as he thought, would be more likely to do good. This class, however, had never, it was likely, troubled their heads about forms of Government. He further objected to the amendment of the gentleman from Virginia, that the word Republican was entirely equivocal. This title was assumed by many Governments in Europe, which were upon principles entirely different from ours. Some of them, such as Poland, had been Aristocracies of the most hideous form. Mr. DEXTER hoped that the amendment of Mr. GILES would not pass, [Mr. GILES had, as before noticed, consented to withdraw it;] not so much for the sake of the principle, as of the language in which it was expressed. The word Republican implied so much, that nobody could tell where to limit it. Why use so hackneyed a word? Many call themselves Republicans, who, by this word, mean pulling down every establishment: they were mere Anarchists. Mr. HILLHOUSE was equally against the clause and amendment. Mr. DEXTER and Mr. GILES previously declared themselves extremely doubtful whether they should even vote for the clause, when amended in their own way. Mr. GILES felt himself extremely surprised to hear it asserted on the floor of Congress, that the words "Republican form of Government" meant any thing or nothing. He read a passage from the constitution, whereby a Republican form of Government is guaranteed to each of the United States composing the Union. He should, therefore, have imagined that the words were well understood from one end of the Continent to the other. He did not expect such criticism. He was not sure if he should vote for the clause at all; but if he did so, he should wish the best to be made of it. He then altered his amendment to these words: "attached to the principles of the Government of the United States." Mr. DAYTON.--With all the ambition of that gentleman (Mr. GILES) to be called a Democrat, both he and Mr. D. would more properly be called Republicans. He again vindicated his assertion as to the equivocal meaning of the word. A Venetian or Genoese might come to this country, and take the oath as proposed, and then excuse himself by saying, "it was the Republican form of my own country which I had in view." One of the best writers on the British Constitution had called that also a Republic. Mr. MADISON was of opinion that the word was well enough understood to signify a free Representative Government, deriving its authority from the people, and calculated for their benefit; and thus far the amendment of his colleague was sufficiently proper. Mr. M. doubted whether he himself should, however, vote for the clause, thus amended. It would, perhaps, be very difficult for many citizens to find two reputable witnesses, who could swear to the purity of their principles for three years back. Many useful and virtuous members of the community may be thrown into the greatest difficulties, by such a procedure. In three years time, a person may have shifted his residence from one end of the Continent to the other. How then was he to find evidence of his behavior during such a length of time? But he objected to both amendments on a different ground. It was hard to make a man swear that he preferred the Constitution of the United States, or to give any general opinion, because he may, in his own private judgment, think Monarchy or Aristocracy better, and yet be honestly determined to support this Government as he finds it. Mr. HILLHOUSE then proposed as an amendment, to insert, that "evidence should be produced to the satisfaction of the Court." Mr. DEXTER mentioned the abuses that have happened in the present form of admitting citizens. He did not comprehend the argument of Mr. DAYTON, that it would be more easy for a rich than for a poor man to get evidences to swear to his having resided in the country. If he had not, the fact was of a notorious nature. It would likewise be as easy for a poor man, as for a rich one, to get an attestation of his character. The point of residence was, in itself, but little. A man may have resided here for a long time, and defrauded the citizens, which would be no recommendation. Several other gentlemen spoke. The resolution finally passed. The second resolution produced a long conversation, in the course of which Mr. MURRAY declared that he was quite indifferent if not fifty emigrants came into this Continent in a year's time. It would be unjust to hinder them, but impolitic to encourage them. He was afraid that, coming from a quarter of the world so full of disorder and corruption, they might contaminate the purity and simplicity of the American character. The committee now rose, and had leave to sit again. MONDAY, December 29. _Naturalization Bill._ The House again resolved itself into a Committee of the whole House, on the bill to amend the act entitled, "An act to establish a uniform rule of naturalization." The motion before the committee, made by Mr. VENABLE, when they broke off the last discussion, had been to strike the word "moral" out of this amendment: "good moral character." These three words, altogether, were an addition of what was to be attested by the witnesses for a candidate to admission as a citizen. Mr. DEXTER opened the debate on the amendment of Mr. VENABLE to the amendment by saying, that he wished to hear the reasons for it. Mr. NICHOLAS said, that he did not make the motion, but his colleague, who had made it, thought that the insertion of the word "moral" gave too strict an air to the sentence. This word might be hereafter implied to mean something relative to religious opinions. Mr. SEDGWICK remarked, that if no better reason than that advanced by Mr. NICHOLAS could be given for striking out the word "moral," he could not agree to it. Moral is opposed to immoral, but has no particular reference whatever to religion, or whether a man believes any thing or nothing. It has no reference to religious opinions. We can every where tell, by the common voice of the world, whether a man is moral or not in his life, without difficulty. In some States of the Union, adultery is not punishable by law, yet it is every where said to be an immoral action. It is too nice to make a distinction between a good character and a good moral character. The word good itself is very equivocal in its meaning. It signifies any thing, every thing, or nothing. A good companion is one thing; a good man, as applied to wealth, conveys a different sense; and so on. Mr. B. BOURNE considered the amendment itself and the motion of Mr. VENABLE to strike out the word "moral," as equally useless. Mr. MURRAY hoped that the word would not be struck out. This would be the greatest slander ever cast upon the American character. It would excite the surprise of foreign nations. Mr. VENABLE had thought the wording of the phrase too strict; but rather than have any further dispute, he withdrew his motion for striking out the word "moral." The clause was then read as amended. Mr. GILBERT thought that the term of residence, before admitting aliens, ought to be very much longer than mentioned in the bill. The Chairman informed him that the term in the bill was left blank. Mr. SEDGWICK agreed to the idea of Mr. GILBERT. He wished that a method could be found of permitting aliens to possess and transmit property, without, at the same time, giving them a right to vote. He did not know if the constitution authorized such a thing. After some further conversation, the clause passed. The third resolution in the report was then read; which was, that if an American citizen chose to expatriate himself, he should not be allowed to enter into the list of citizens again without a special act of Congress, and of the State from which he had gone. Mr. MADISON did not think that Congress, by the constitution, had any authority to readmit American citizens at all. It was only granted to them to admit aliens. Mr. SEDGWICK was very willing, for his part, that citizens who had once expatriated themselves should never be readmitted again. The committee, on two successive motions to that effect, from Mr. Madison and Mr. GILES, rose. The Chairman reported progress, and asked leave to sit again, which was granted. WEDNESDAY, December 31. LEMUEL BENTON, from South Carolina, appeared, and took his seat in the House. THURSDAY, January 1, 1795. _Naturalization Bill._ The House proceeded to consider the amendments reported yesterday from the Committee of the whole House, to the bill to amend the act entitled, "An act to establish a uniform rule of naturalization." The House went through the report of the committee, and agreed to the amendments. Mr. GILES then rose to make his promised motion as to the exclusion of any foreign emigrant from citizenship who had borne a title of nobility in Europe till he had formally renounced it. He proceeded to observe that, agreeably to the spirit of the constitution, we ought to have the strongest possible evidence that people of this description have renounced all pretence to a right of this nature, before we admit them into the bosom of society. Moderation had been recommended. He requested gentlemen to observe that he conducted his motion on the strictest principles of moderation. He had, in a former part of this bill, voted for some clauses which were intended to guard the Government against any disturbance from the people called Jacobins, when their principles should run to a dangerous and seditious extreme. The same spirit of candor and moderation which had induced him to vote for a precaution against the attempts of the one party, now led him to propose a precaution against the prejudices of the aristocrats, which were, upon the whole, more hostile to the spirit of the American constitution than those of their antagonists. He also requested gentlemen to observe that his present motion went not to the invasion of any positive right. It left the individual exactly where it found him, unless he aspired to be an American citizen. Otherwise, he might retain his titles undisturbed as long as he pleased. But if he wanted any promotion of a civil nature in this country, he must rise to it by conforming exactly to the rules laid down by the constitution itself. That code had declared no titled character admissible to any civil rank. It was not to be supposed that people born and nurtured in the lap of aristocracy would heartily renounce their titles, and become all at once sincere Republicans. It was, therefore, highly improper that such people should be admitted. If we are allowed to anticipate probabilities, it seems highly probable that we shall soon have a great number of this kind of persons here. A revolution is now going onward, to which there is nothing similar in history. A large portion of Europe has already declared against titles, and where the innovations are to stop, no man can presume to guess. There is at present no law in the United States by which a foreigner can be hindered from voting at elections, or even from coming into this House; and if a great number of these fugitive nobility come over, they may soon acquire considerable influence. The tone of thinking may insensibly change in the course of a few years, and no person can say how far such a matter may spread. After these, and other prefatory remarks, Mr. G. read a resolution, which was in effect as follows: "And in case any alien applying for admission to citizenship of the United States, shall have borne any title or order of nobility in any Kingdom or State from whence he may come, he must renounce all pretensions to his title before the court in which such application shall be made; and this renunciation must be registered in the said court." Mr. G. observed, that previous to the late revolution, the French nobility were, by the lowest calculation, rated at twenty thousand; and as we may conclude on France being successful, a great proportion of these people may be finally expected here. Mr. DEXTER declared that he was not very anxious against the resolution. He, however, opposed it. He imagined that, by the same mode of reasoning, we might hinder his Holiness the Pope from coming into this country. He entered at some length into the ridicule of certain tenets in the Roman Catholic religion, and said that priestcraft had done more mischief than aristocracy. Mr. MADISON said that the question was not perhaps so important as some gentlemen supposed; nor of so little consequence as others seem to think it. It is very probable that the spirit of Republicanism will pervade a great part of Europe. It is hard to guess what numbers of titled characters may, by such an event, be thrown out of that part of the world. What can be more reasonable than that when crowds of them come here, they should be forced to renounce every thing contrary to the spirit of the constitution. He did not approve the ridicule attempted to be thrown out on the Roman Catholics. In their religion there was nothing inconsistent with the purest republicanism. In Switzerland, about one-half of the Cantons were of the Roman Catholic persuasion. Some of the most democratical Cantons were so; Cantons where every man gave his vote for a representative. Americans had no right to ridicule Catholics. They had, many of them, proved good citizens during the Revolution. As to hereditary titles, they were proscribed by the constitution. He would not wish to have a citizen, who refused such an oath. Mr. PAGE was for the motion of his colleague. It did not become that House to be afraid of introducing democratical principles. Titles only gave a particular class of men a right to be insolent, and another class a pretence to be mean and cringing. The principle will come in by degrees, and produce mischievous effects here as well as elsewhere. If such men do come here, nothing can be more grateful to a Republican than to see them renounce their titles. This does not amount to any demand of making them renounce their principles. If they do not aspire to be citizens, they may assume as many titles as they think fit. Equality is the basis of good order and society, whereas titles turn every thing wrong. Mr. P. said that a scavenger was as necessary to the health of a city as any one of its magistrates. It was proper, therefore, not to lose sight of equality, and to prevent, as far as possible, any opportunities of being insolent. He did not want to see a duke come here and contest an election for Congress with a citizen. Mr. SEDGWICK was really at a loss to see what end this motion could answer. He agreed with the arguments of Mr. GILES. But the point in view was explicitly provided for already. By taking an oath of citizenship, the individual not only renounces but solemnly abjures nobility. The title is destroyed when the allegiance is broken by his oath being taken to this Government. This abjuration has destroyed all connection with the old Government. Why then provide for it a second time? Mr. GILES said, that by admitting a thing to have been once done, it was admitted that it might be done again. If it had been right to do it once, there could be no harm in repeating it. The member then quoted Mr. DEXTER, who rose and declared that the gentleman had misunderstood him. He spoke for some time, and when he sat down-- Mr. GILES declared himself incapable of comprehending whether Mr. DEXTER was for his motion or against it. He therefore proceeded to reply to Mr. SEDGWICK, whose chief argument had been that the thing was provided for already. He did not suppose that this gentleman would allege the matter to be explicitly provided for. It only could be so by implication; which was a very bad way of making a law, because it gave room for endless disputes. If the thing is in itself right, why refuse to vote directly for it? Why leave it only to be implied? He wished to let foreigners know expressly the ground upon which they stood. Why not tell them at once, and in plain English, you must renounce your titles before you can have the privileges of an American citizen? Mr. G. pressed home this idea more than once. He meant no act of inhospitality to these emigrants. He would deprive them of no right, nor do any thing unkind to them. But he was entitled, by the spirit of the constitution, to withhold this right from them till they renounced all hereditary titles. This was no incivility. He concluded by declaring that he would, if supported, call for the yeas and nays on this question. A number of members rose to support this proposal. Mr. NICHOLAS had no objection to the motion, but that it did not go far enough. The emigrants ought to be obliged to swear not only that they abjured all titles hitherto received, but that they would never accept of any in future. He believed that this would hurt their feelings, and, sympathizing with them, he would not urge a proposal that might add to their distress, but should vote for the motion as it stood. Mr. SCOTT was sorry that so much time had been spent on the motion. We are not by the constitution authorized to make titles; and he apprehended that if it was unlawful to manufacture a commodity at home, it was unlawful to import it from abroad. On this account he was for the resolution. If once we allow the thing to be manufactured at all, he had no doubt but titles would be as prevalent here as in Britain. He should think it very odd to see a man sitting opposite to him in that House, with a star and garter on his breast. The emigrant was as welcome to wear them as to wear his hat. Only let him wear them out of doors. Mr. TRACY thought that more time had been spent upon the subject than it was worth. He mentioned the proceedings of the French Convention, who, some time before they cut off the head of the Duke of Orleans, debated four days upon what name they should give him, and at last called him _Egalité_. He feared that calling for the yeas and nays thus early would look like party, as if intended to cast an odium on gentlemen who should vote against the motion. Mr. DEXTER would vote for the resolution, if the gentleman would agree to an amendment; which was, that he renounced all possession of slaves. Mr. THATCHER moved as a second amendment, "and that he never will possess them." The words of Mr. DEXTER's amendment were nearly these: "And also, in case any such alien shall hold any person in slavery, he shall renounce it, and declare that he holds all men free and equal." Mr. GILES said, that he should begin to think his motion of very peculiar importance, if such extraordinary resources were adopted to disappoint it. He was sorry to see slavery made a jest of in that House. He understood this to be intended as a hint against members from the Southern States. It had no proper connection with the subject before the House. He had therefore no scruple in voting against it. It was calculated to injure the property of gentlemen. As to slavery, he lamented and detested it; but, from the existing state of the country, it was impossible at present to help it. He himself owned slaves. He regretted that he did so, and if any member could point out a way in which he could be properly freed from that situation, he should rejoice in it. The thing was reducing as fast as could prudently be done. He believed that slavery was infinitely more deprecated in countries where it actually existed, and consequently where its evils were known, than in other countries where it was only an object of conversation. Gentlemen had objected to calling for the yeas and nays. Have not the public a right to know the sentiments of the House on every question? Was it any unusual thing to call for the yeas and nays? Or was there any use for it but that the sentiments of every member might be known? Mr. MADISON mentioned regulations adopted in Virginia for gradually reducing the number of slaves. None were allowed to be imported into the State. The operation of reducing the number of slaves was going on as quickly as possible. The mention of such a thing in the House had in the mean time a very bad effect on that species of property, otherwise he did not know but what he should have voted for the amendment of Mr. DEXTER. It had a dangerous tendency on the minds of these unfortunate people. Mr. NICHOLAS said, that Mr. DEXTER had more than on one occasion hinted his opinion that possessors of slaves were unfit to hold any Legislative trust in a Republican Government. He was solicitous that before Mr. D. spoke on a subject, he would make himself in some degree acquainted with it. He ought to acquire some information as to the state of the country, otherwise his opinion would fall into contempt with those who knew it. Mr. N. said, that gentlemen who possessed a thousand slaves in Virginia had no more influence on their neighbor who had not one than that neighbor had on them. Mr. DEXTER complained of the attempt to take the yeas and nays, as a design to hold up certain people to public odium. He would withdraw his amendment if the gentleman would withdraw his motion. Mr. SEDGWICK rose in some warmth. He said that there was no design in calling for the yeas and nays but to fix a stigma upon gentlemen in that House as friends to a nobility, when they were no such thing, and to raise a popular odium against them. To propose an abolition of slavery in this country would be the height of madness. Here the slaves are, and here they must remain. A question of adjournment was now carried by 43 against 29. So the motion of Mr. GILES stands over till to-morrow. FRIDAY, January 2. _Naturalization Bill._ The House resumed the consideration of the amendments reported on Wednesday last from the Committee of the whole House to the bill to amend the act entitled "An act to establish a uniform rule of naturalization." Whereupon, The amendment moved yesterday to the said bill being under consideration, in the words following, to wit: "And in case any such alien applying for admission to become a citizen of the United States, shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, in addition to the requisites of this, and the before recited act, he shall make an express renunciation of his title, or order of nobility, in the Court to which his application shall be made, before he shall be entitled to such admission; which renunciation shall be recorded in the said Court." A motion was made and seconded to amend the said amendment, by adding to the end thereof the words following, to wit: "And, also, in case such alien shall, at the time of his application, hold any person in slavery, he shall in the same manner renounce all right and claim to hold such person in slavery." On the question that the House do agree to the said amendment to the amendment, Mr. BOURNE said he was against both amendments. He saw no use either for the one or the other. He recapitulated the numerous checks which the constitution had framed against nobility getting into it. He, therefore, with all these checks, could see no danger from it. So much for the expediency of the proposal. He next considered it in a different point of view. A foreigner comes, perhaps with a title, which he has derived from a long train of ancestors, and, with a very pardonable infirmity, he is fond, he is perhaps proud, of his badge of nobility. Is it polite, is it generous, to force him to renounce it? If it is an hereditary title, he can renounce only for himself. His children shall inherit the right. Mr. B. wished both amendments withdrawn. Mr. RUTHERFORD said, the people of America had an exceeding aversion to the bubble of nobility. He had so much confidence in the wisdom, good sense, and public spirit, of the gentlemen in this House, that he was sure the amendment would be carried by a very great majority. He was equally certain that the amendment of the other gentleman (Mr. DEXTER) would be rejected. It went to wound the feelings and alienate the affections of six or eight States in the Union. He was against the yeas and nays. He wished for a silent vote. Mr. MCDOWELL.--When the gentleman from Massachusetts first brought forward the motion on the table, Mr. McD. could not think he was sincere, from the idea which he had formed of the candor and good sense of that gentleman. But, much to his surprise, Mr. D. persisted in supporting the propriety of his motion, which is not only an indirect attack on the State Governments, but even on the constitution of the United States, and on the members of this House who represent the Southern States. This amendment not only tends to irritate the minds of members, but of thousands of the good citizens in the Southern States, as it affects the property which they have acquired by their industry. Thus it cools their affections towards the Government, as they will find that one part of the Government is about to operate on their property in an indirect way. The gentleman dare not come directly forward, and tell the House, that men who possess slaves are unfit for holding an office under a Republican Government. Mr. McD. recalled to the mind of the House the conduct of the people that compose the Southern States, during the late war, and their struggle for American Independence. He then bade the House review the behavior of their Representatives, under the present Government, and say whether they do not partake more of the Republican spirit than the members from the Eastern States. The latter, also, no doubt had members who did honor to the States which they represented, and to the United States. He thought the amendment of Mr. DEXTER partook more of monarchical or despotic principles than any thing which he had seen for some time. What right had the House to say to a particular class of people, you shall not have that kind of property which other people have? This was the language of the motion, and he considered it as highly unjust. Mr. McD. wished the gentleman to consider what might be the consequence of his motion, at this time, when the West Indies are transformed into an immense scene of slaughter. When thousands of people had been massacred, and thousands had fled for refuge to this country, when the proprietors of slaves in this country could only keep them in peace with the utmost difficulty, was this a time for such inflammatory motions? He was amazed that a gentleman of whom he had so high an opinion, could, for a moment, embrace an idea which was, in all points of view, so extremely improper and dangerous. Mr. DEXTER chiefly excused his motion because the other gentlemen had been for taking the yeas and nays. The tenor of his argument seemed to be this: You want to hold us up to the public as aristocrats. I, as a retaliation, will hold you up to the same public as dealers in slaves. Mr. D., however, did not wish to irritate. He, for that reason, withdrew his motion, under the hope that the yeas and nays would not be taken. Mr. GILES said, that no person could be more anxious than himself to conciliate. But he could not submit to purchase conciliation by sacrificing his opinion, or betraying his duty. He should, on that account, stand by his amendment. It had been said that he called for the yeas and nays for the purpose of holding up to popular detestation a certain party in that House. Such an idea had never entered into his mind. He then commenced a vindication of the propriety of his amendment against the observations of Mr. BOURNE, who had, among other things, alleged that it had no proper relation to the spirit of the Naturalization Bill. After defending it, on this quarter, Mr. G. proceeded to answer something that had been alleged yesterday against his amendment. This was that it had been calculated to hold up an idea to the world, that there was a party in that House in favor of Aristocracy. If there is no such party, a general vote for the amendment will prove that this report is without foundation. In reality there is no connection between the amendment and any such scheme. The idea must have been in the head of the member himself. It is not the amendment, but the use which the gentleman makes of it, that can have any tendency that way. Mr. G. never could have thought of such a way of holding up a party. As to the amendment of Mr. DEXTER, he, Mr. G., held property sacred, and never could have consented to prohibit the emigrant nobility from having slaves any more than other people. But as for titles of nobility, they were quite a different thing. They were but a name, and people were not obliged even to give them up, unless they wanted to become American citizens. As the call of yeas and nays had given such uncommon uneasiness, he, for his own part, should give it up. He was careless how the vote was taken. The other gentlemen who supported his call might act for themselves. Mr. LEE said, he hoped that to-day the question would have been taken without further debate; he had no disposition to say any thing more on it, and should have remained silent if his colleague (Mr. GILES) had not made some strictures on the observations which fell from him on the preceding day. Mr. L. always thought the Eastern and Southern States were well situated to unite on terms of the greatest reciprocal benefit. That, for the good of his own country, he valued such a union above all things. He knew, in particular, that it was highly important to the interests of the people whom he represented, to conciliate the cordial and affectionate esteem of their Eastern brethren. That this was not only important to his constituents, but to the whole State, and all the Southern country; as on it must materially depend the preservation of our Union, which Mr. L. feared was more necessary to our safety and prosperity than to theirs. Mr. L. said, he never saw any reason to suspect the Eastern people of anti-Republican principles; that there was no just ground to accuse them of such principles in any manner. Mr. L. had always thought that the Southern country had no right to claim a superiority over their Eastern brethren in Republican virtue. Mr. L. always lamented that his country was not, in some points, so fortunately situated as the Eastern States; but still, he rejoiced to find just ideas of liberty, and a proper respect to the rights of men, animating all the citizens of it; and in public virtue they had a right to rank with their brethren to the North and East of them. Mr. L. thought that his colleague's strongest argument was the corrupting relation which existed in Europe between noblemen and their dependants. Mr. L. feared that this argument might too readily be extended to the situation of this country, and conclusions very disparaging to their Republican virtue drawn from it, from which he had felt it his duty to vindicate them. Mr. L. believed that the people throughout America were all animated by an equal zeal for the liberty and happiness of their country. As a person, therefore, anxious to preserve our harmony and union, he always felt pain at any question, which was, in any degree, calculated to excite suspicions of each other, and produce enmity, when concord was so much the interest of all. This proposition had, to his mind, a very denunciating aspect; and, as such, he felt it his duty to discountenance it, and every thing of the same sort, without presuming to ascertain or question the motives or designs of the mover. Mr. L. could not help viewing the motion as capable of guarding us from no one danger, but as well fitted to produce unnecessary alarm and irritation. Mr. L. was indifferent how the question was decided; but, being a friend to harmony and union, he could by no means countenance by his vote any thing that might be construed to denounce a most respectable and patriotic part of this House. Mr. HILLHOUSE observed, that when the amendment was first introduced, he considered it as altogether harmless and unnecessary; but, being friendly to what appeared to be the object of the mover, that is, keeping out privileged orders from among us, he was inclined to vote for it. Yet, upon more mature reflection, he was of opinion that if the provision contained in the amendment had any effect at all, it would be a directly contrary one from what was intended, and would indirectly establish the principle that privileged orders might be introduced and exist among us, a principle which he wholly rejected and reprobated; and, as he did not doubt that the views of the gentleman who moved the amendment were similar to his own on that subject, he hoped that, upon further consideration, he (Mr. GILES) would withdraw it. It was his opinion that the ground upon which foreigners should be admitted to a share in the administration of our Government ought to be narrowed in every possible way, and if the gentleman would so modify the amendment as wholly to exclude that class of foreigners, or any other, from ever becoming citizens, so far as to elect or to be elected to any office, he would most heartily join in giving his vote for it. In those nations where privileged orders are admitted, the benefits and advantages arising from it have been considered as merely local, so that, if a nobleman removes from one nation to another, he is not considered as carrying with him the privileges of his order; as, for instance, if a nobleman from any other nation removes to England, where an hereditary nobility is established by law, and even becomes naturalized, he is not a peer of England; he is no more than a private subject, and can claim nothing on account of his former rank. The Convention who formed our constitution undoubtedly viewed the subject in that light, or they would have been equally anxious to have provided against the importation as of the creation of nobility; but, passing this amendment will, as far as the influence of a law and the opinion of Congress can go, be putting a different and wrong construction upon the constitution, and will be admitting that there may be some other mode of introducing a privileged order or a nobility among us, than the one guarded against in the constitution; for, if a law is passed requiring a person, before he shall be admitted to a certain privilege, to renounce some other privilege, it is clearly admitting that such person does or may possess such privilege, otherwise the law is futile, requiring a person to renounce what he does not or cannot possess. Mr. J. WADSWORTH rose next. He had been up four times before, but, other gentlemen always rising along with him, he had sat down again. Mr. W. said, that a rage against nobility and privileged orders now pervades the whole world. He really did not see the use of this amendment. It put him in mind of an old law which, within his memory, had been in use. When a man had shot himself, his neighbors were not contented with the certainty of his being dead in this world, and damned in the next, but, besides all this, they drove a stake through his body. Mr. W. regarded nobility as in a similar situation with such a man, for nobility appeared to him in the certain road to instant destruction; and this amendment of Mr. GILES, he thought, was like driving in the stake. The latter practice had been laid aside, and he thought that the amendment deserved the same fate. He reminded the House that the time had been when America was very much indebted to nobility, and very glad to see them fight her battles. We might now be taxed with ingratitude on that head, for some of those identical French noblemen, who, during the late war, had rendered us essential service, were now in this country in a state of beggary, subsisting on the charity of their friends. Others of the same noblemen were in dungeons, and some again had got their heads chopped off. He was warranted to say that many of those noblemen, when here, during the war, and long before a French revolution had been talked of, were, in their hearts, as good Republicans as any Americans whatever. We had seen, some time ago, a party spirit rising in the United States. He had observed that the thing was dying away, but the present amendment would afford a new theme. The newspapers are extremely numerous, and he doubted not that the writers in them would embrace so notable an opportunity for exercising their talents. As to the notion that there was a danger of nobility being introduced into this country, the thing was held in such detestation in America, that he had no more apprehension of its obtaining a footing here than he had that there would arise a new race of men without heads, or with their heads placed below their shoulders, or any other unnatural production. In short, he did not know a thing so impossible as the establishment of an American nobility. Knowing this, he regarded the amendment as entirely useless. As to the call for the yeas and nays having an impression on his vote, that was out of the question. He knew his constituents, and they knew him; and they were both too well acquainted with each other for a trifle of this nature to have any influence. To him the call was a matter of the utmost indifference, and he took this opportunity to declare frankly that he should vote against the amendment, whether the yeas and nays were called or not. Mr. NICHOLAS could not consent to abandon the proposition. It might be said that he did so in terror of the amendment of Mr. DEXTER, which he thoroughly despised. Mr. BOUDINOT had not designed to speak on this question, but there was one objection to the amendment, which occurred to him, and which had not been noticed by any gentleman. This was, that it would be an act of injustice to make a man do an act in this country which might affect his own interest, and that of his family in another. This case might very possibly happen. A person, by renouncing nobility here, might he debarred from claiming its privileges in another place, when it would, perhaps, be for his advantage. Mr. AMES observed, that too much attention had been given to the amendment as an abstract question. Nothing tended more to bewilder and confuse a debate than such a departure from the subject into abstractions and refinements; for, although by this means we found that plain principles were rendered obscure, and reasonable doctrines carried to excess, yet we did not seem to reflect that nothing is more opposite to just principles than the extremes of those principles. For instance, it would not be safe or proper indiscriminately to admit aliens to become citizens, yet a scrutiny into their political orthodoxy might be carried to a very absurd extreme. The merit of the amendment depends on its adaptedness to the end proposed by the bill, and what is that? To make a rule of naturalization for the admission of aliens to become citizens, on such terms as may consist with our tranquillity and safety. Now, said he, do we think of refusing this privilege to all heretics in respect to political doctrines? Even that strictness would not hasten the millennium. For our own citizens freely propagate a great variety of opinions hostile to each other, and therefore, many of them deviate widely from the intended standard of right thinking; good and bad, fools and wise men, the philosopher and the dupes of prejudice, we find could live very peaceably together, because there was a sufficient coincidence of common interest. If we depend on this strong tie, if we oblige foreigners to wait seven years, till they have formed it, till their habits as well as interests become assimilated with our own, we may leave them to cherish or to renounce their imported prejudices and follies as they may choose. The danger of their diffusing them among our own citizens, is to be prevented by public opinion, if we may leave error and prejudice to stand or fall before truth and freedom of inquiry. Can the advocates of the amendment even affect apprehensions that there is any intention to introduce a foreign nobility as a privileged order? If they can, such diseases of the brain were not bred by reasoning and cannot be cured by it. Still less should we give effect by law to chimerical whimsies. For what is the tendency of this counterfeit alarm? Is it to rouse again the sleeping apparitions which have disturbed the back country? Is it to show that the mock dangers which they have pretended to dread are real? Or, is it to mark a line of separation between those who have the merit of maintaining the extremes of political opinions, and those whom this vote would denounce as stopping at what they deem a wise moderation? If that is the case, it seems that the amendment is intended rather to publish a creed than to settle a rule of naturalization. Yet it should be noticed that those who would go to extremes are less entitled to the praise of Republicanism than those who would not. Mr. SAMUEL SMITH was sorry for the turn which the debate had taken; though at first it bore a trifling appearance, it had since called up all the warmth of the House. The gentlemen from the Eastern States, who knew the Republican character of their constituents, and how independent every man there was, both in his temper and his circumstances, had slighted the amendment as unnecessary. Gentlemen from the Southern States, on the other hand, say that they have some reason to be apprehensive. Why, said Mr. S., will not the Eastern members indulge us in this trifle? It is owned by the one party, that it can have no bad tendency; and the other imagine that it must have a good one. Then why not, for the sake of conciliation, grant it? Mr. MURRAY was sorry that the House had begun the new year with such a discussion. He had seen with much pleasure the appearances of conciliation and unanimity at the outset of the session. He should vote for the amendment, and he hoped that those members who were against it would come round and vote for it. They would thus put an end to this motion, so wasteful of time. Of nobility, however, the gentleman had no alarming apprehensions. There had once been in this House a baronet. He was there for two years before it was known, and it was then discovered that a baronet was a thing perfectly harmless. As for titles of nobility, he believed that all the wholesome and sensible part of the community looked upon the whole as stuff. When Mr. M. contemplated this subject, it reminded him of Holbein's Dance of Death.[56] He saw nothing in this country but the ghosts of nobility. In Europe, indeed, it was a matter of importance. It established the etiquette of precedence among the ladies in leading down a country dance. The amendment was not worth much either one way or the other. But he wished it to be granted for the reasons assigned by his colleague from Maryland, who had spoke just before him. Mr. MADISON. When the amendment was first suggested, he had considered it as highly proper, and naturally connected with the subject. No man can say how far the Republican revolution that is now proceeding in Europe will go. If a revolution was to take place in Britain, which for his part he expected and believed would be the case, the peerage of that country would be thronging to the United States. He should be ready to receive them with all that hospitality, tenderness, and respect to which misfortune is entitled. He should sympathize with them, and be as ready to afford them whatever friendly offices lay in his power as any man. But this was entirely distinct from admitting them as citizens of America before they were constitutionally qualified to become so. In reply to the remark of Mr. BOUDINOT, that a renunciation of their titles might injure their families, Mr. M. observed, that if a British revolution took place, these fugitives would, as aliens, be incapacitated from holding real estates. In discussing this question, we had been reminded of the Marquis de Lafayette. He had the greatest respect for that character; but if he were to come to this country, this very gentleman would be the first to recommend and acquiesce in the amendment on the table. He had urged the necessity of utterly abolishing nobility in France, even at a time when he thought it necessary for the safety of the state that the king should possess a considerable portion of power; and Mr. M. believed, that if he were now at freedom, he was as completely stripped of every thing relative to nobility, as it was possible he could be. It had been said, that it was needless to make emigrants renounce their rank, and that oaths were no security. He was ready to allow, that oaths were, in any case, but a very poor security, but they had been adopted in other parts of the bill, and the same reason which recommended them on former occasions might recommend them now. Mr. W. SMITH was convinced that the amendment was wholly incompetent to the end which it professed to have in view. You may force a man to renounce his title, but what does that signify, when you cannot hinder his neighbors from calling both him, his wife, and family by the title? He replied to the argument of Mr. S. SMITH, as to the Eastern members giving up the point for the sake of conciliation with the Southern members. He did not understand that his own constituents had any such panic about them, or that they would thank the Eastern members very ardently for such a concession. They were not afraid of aristocracy. You cannot abolish the practice; and even supposing a nobleman had made his renunciation, perhaps the very person who administered the oath, may, the next moment, say, "My Lord, I wish you a good morning!" and you cannot punish the individual who says so. As to not allowing of titles to wives and daughters, this renunciation will not prevent their being given. But in some parts of the country we have titles already. Mr. S. had often heard an old lady called "the Duchess." He could see no good consequence from the motion. There was indeed one obvious effect. The ignorant part of the American citizens--who, he hoped, were but few--would imagine that those who voted for the amendment were against the introduction of nobility into America, and that those against the amendment were for that introduction. This frivolous kind of legislation had disgraced the proceedings of another nation. They had begun to change the names of their towns and harbors, such as Conde, Dunkirk, Toulon, Havre de Grace, and Lyons. One of these they had named _Havre de Marat_, and so on. But now they were coming back to their sober judgment, and were repealing these edicts. Lyons was restored to its old name. The pillar erected to announce its rebellion and annihilation had been taken down. The Convention had formerly passed a law for demolishing houses inhabited by aristocrats, but now they began to think it was better to let the houses stand. Would any body say that French liberty was better secured by naming a harbor _Havre de Marat_? Had this done any good to the cause? But if people who were so much afraid of the introduction of nobility would look around them, they might already find in this country alarming marks of attachment to royalty. When Mr. SMITH was lately at New Haven, in Connecticut, he had observed on the top of the State House the figure of a _Crown_, which had stood there undisturbed since long before the beginning of the Revolution. He went into the State House, and found the people as good Republicans as could be, notwithstanding this crown. Again, at Middletown, in the same State, he went into a church, and on the top of the organ there was another _Crown_, which might also be interpreted as a proof of monarchical principles. Reverting to the subject of changing names, Mr. S. said, that the people in the State of New York had for a long time enjoyed as much liberty as the other States. At last, however, it was recollected that one of the streets of the city of New York was called King's street; but this was changed to _Liberty_ street, which was, to be sure, a very momentous alteration. If Congress descend to legislate in such littlenesses, they may forbid the title of Worshipful. They may abolish the order of Freemasons, which he thought that they had just as much right to do as to make the foreign nobility renounce their titles before they should be accepted as American citizens. The Congress may, among other objects of legislation, forbid any member to come into that House with an aristocratical cloak--one with gold lace, for example. He asked more than once this question: What peculiar privileges has a foreign nobleman, coming into this country, which he possessed more than all other citizens? He considered the whole amendment as totally trifling. He was content that the yeas and nays should be taken. His sentiments were known already. His name should stand among the noes. Mr. GILES said, that there had been an echo from one end to the other of the House that his amendment was trifling. Was it consistent for the gentleman, who had been up for half an hour, to spend so much time upon a question, and then conclude by telling the House that it was nothing; that he had been talking for so long a time upon a subject that did not merit their attention? What kind of reasoning was this, or how did the gentleman propose to reconcile it? Was it consistent with the warmth which had been discovered, to say that all this discussion, all this length of time, had been consumed upon nothing? But this kind of language had something more serious in it, for this prohibition of nobility formed one of the pillars of the constitution; so that to call a principle recognized and affirmed by the constitution a trifle, or nothing, and so on, was a very unguarded proceeding. Another notable argument against agreeing to his amendment had been, that the people already detested nobility so thoroughly that it was not worth while to pass this amendment, as their hatred of it would put an end to it without a law. It was enough that the two principal reasons against his amendment, were, first, that it was authorized by the constitution, and secondly, that it would be agreeable to the people. It is strange, that the will of the people, who send us here, is to have no influence in this House, but is to be turned into an argument against passing a law! Mr. G. would adhere to his amendment, because, as the law now stands, there is nothing to hinder a foreigner with a title to become an American citizen, and obtain a seat in this House, and hold both his office and his title. Mr. G. next answered a part of the argument of Mr. W. SMITH, that making people renounce their titles would only rivet their attachment to them, and make them, perhaps, think of these things, when otherwise they would have been forgotten. Mr. G. said, it was quite a new kind of argument, that to renounce a thing, was the way to give it existence. If this rule were to hold, he believed that some members of the House would renounce things which they very much wanted. For example, he himself should possibly renounce a hundred thousand dollars. As to the call for yeas and nays, he had some time ago informed the House that he gave up this point. The thing could not affect him, either one way or another, because his sentiments were already known. Mr. TRACY regretted that so much time should be lost on trifling subjects. We had seen the National Convention of France diminish their dignity, by spending three or four days on the business of giving a name to the late Duke of Orleans, and hardly had they finished, by giving him the _name_ of Egalité, before in _substance_ he became so bad that they cut his head off. What good did his renunciation of title do, excepting that it afforded him a short opportunity of deceiving his fellow-citizens? Mr. T. said he was fully convinced, and had been so from the beginning of the debate on the Naturalization bill, that a length of time was the only valuable probation of an alien, and the only successful mode of discerning his principles, and the justice and propriety of his claim to be naturalized. He thought the sentiments of the gentleman from Virginia (Mr. _Giles_) were highly commendable, when he said we ought to avoid extremes in politics, and adopt a sober medium of political reasoning, suited to the steady and rational temper of Americans, equally removed, on the one hand, from tyranny, and on the other from anarchy. And he would ask, whether a solemn abjuration of all foreign allegiance, with proofs of a good moral character, and attachment to the principles of our Government, would not secure us, as to the principles of the heart, as thoroughly, without the farce of renouncing his title, as with it? He considered titles, in this country, as very empty, unmeaning things; and they would go into disuse of themselves, having no solid support, either in the habits or constitution of this country. But, by the Constitution of the United States, any citizen might receive and enjoy a title from a foreign prince or sovereignty, and Congress could not prevent it. The words of the constitution are: "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust, under them, shall, without the consent of Congress, accept any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign State." Mr. T. supposed it was clear that Congress had no power respecting this matter, but what was expressly delegated by the constitution, and that had given them a check only on officers of their own appointment, leaving every other citizen, not an officer of Government, at liberty to retain a foreign title if he pleased. And an alien might, even if this amendment should pass, renounce his title, become naturalized, and in an hour accept of the same title, or another, from any foreign Prince, and Congress can make no laws to prevent it. If it be a fault that our citizens can receive and enjoy titles, it is a constitutional one; Congress are not blamable for it, but they would be blamable were they to arrogate powers not given them, upon this or any other subject. Mr. T. repeated, that there could be no danger in this country from titles; they were universally considered as trifles, and it would be dignifying them too much to legislate about them. He asked the gentleman who brought forward this motion, whether it was not, in a measure, a departure from his former declaration, of sober, rational temper, in politics, to insist so much upon its importance as he did? He was sorry the yeas and nays were insisted upon with so much spirit; it looked like party, in a very unimportant matter: he did not mean to accuse any man, or men, and mentioned it with diffidence, but it really struck his mind in this way. Much had been said about adhering to the constitution strictly, on former occasions; but, from many things said now, it seemed as though there was no safety for the people, unless the House of Representatives absorbed the whole governmental power. Mr. T. said, if that House should become political cannibals, and attempt to devour both the other branches of the Legislature, he would oppose it, whether it was popular or not, for he considered the constitutional checks of the branches of this Government, upon one another, as containing the most complete security for liberty that any people could enjoy. If his construction was a just one, Mr. T. thought the amendment could do no good; it formed a test which might make hypocrites, but not proselytes: it stripped an alien for a moment of a trifle, which in the next he might resume and wear for ever. Mr. SEDGWICK.--Has it not been said that there was a party in the United States, not only for aristocracy, but even for monarchy? Is not the present a most favorable opportunity for holding up these people to popular resentment? He was convinced that the gentleman who moved this amendment had no design of doing any such thing, but that did not lessen the reality. He said that Mr. GILES had brought gentlemen into a dilemma, which he did not, or would not see. They had at first opposed the motion, as trifling, and this they had a right to do. The member (Mr. GILES) then moved his call for the yeas and nays; and if gentlemen who had already spoken against the amendment, were now to draw back, and vote for it, they would betray a disgraceful poverty of spirit. Their constituents would say that their votes had been given _in terrorem_ of the yeas and nays. The motives for pushing this call could be nothing else but to stigmatize members of that House, as wanting to introduce a nobility, whereas they opposed the amendment on no such account, but merely because it was not worth their taking up. As to himself, he did not care. He could not wish to stand better with his constituents than he actually did. He was well known to them. But, in other quarters of the continent, it might be said that the Eastern States were represented by aristocrats. If this be a desirable object, said Mr. S., in God's name, let gentlemen persist in calling for the yeas and nays. It will be said, "There go the Eastern aristocrats! They want to import nobility here, when it can no longer exist in Europe!" Mr. S. said, that, at first, he gave but little opposition to the amendment, thinking it frivolous. He repeatedly declared, upon his honor, that he firmly believed it to be so, and that he had no other reason for opposing it. If he had been, upon this occasion, warmer than usual, he was sorry for it; but the mischievous and unconciliating consequences of this call for the yeas and nays, had hurt him exceedingly. Mr. MADISON denied the assertion of Mr. SEDGWICK, that the amendment was trifling; and the member himself seemed to betray, by his behavior, a consciousness that he had not promoted conciliation. An abolition of titles was essential to a Republican revolution, and therefore such an abolition had been highly proper in France. The sons of the Cincinnati could not have inherited their honors, and yet the minds of the Americans were universally disgusted with the institution, and in particular, in South Carolina; yet a member from that State (Mr. W. SMITH) has told the House that his constituents were under no fears of aristocracy, and that they could hear titles without emotion. Even the Chief Magistrate of South Carolina had told the Cincinnati that these distinctions ought to be laid aside. Mr. HILLHOUSE thought it quite frivolous to spend time upon the motion. That was all his objection. It had been said that, allowing the amendment to be trifling, yet it was no harm to make an idle law, and that therefore it should be agreed to for the sake of conciliation. Supposing a man to make a will, bequeathing a hundred thousand guineas, when he was not worth a shilling, there would be one serious effect at least, for it would make the testator ridiculous. To legislate for the sake of expressing a sentiment, was very silly, and what he never should agree to. If Mr. GILES would make an amendment incapacitating all foreigners whatever from holding, upon any account, a civil office in America, Mr. H. would agree with him, because he did not want to see any of them in such offices, and conceived that Americans could legislate for themselves much better without any such assistance. Mr. LYMAN said, that whenever a member of that House called for the yeas and nays, it was a rule with him to rise and second the motion, because the people had, upon all occasions, a right to know their votes; and even if only one member desires the yeas and nays to be taken, Mr. L. conceived that it ought to be done, as the thing was in itself so highly proper. Since he had the honor of a seat in that House, therefore, he had always seconded every call for yeas and nays, that the public might understand, as fully as possible, what they were about, and how their votes went. He said that it was extremely improper to ascribe wrong motives, when gentlemen supported a call for yeas and nays. It was sacrificing the dignity of the House to cast out such insinuations. When the call had once been made and agreed to, it would be very mean to retract it, to gratify any member. The public had always, and without any exception, a right to know what their Representatives were doing, and how they were voting, and he, for one, should adhere to the call. Mr. W. SMITH said, that he had already put a question which nobody had answered, and on that account he should now rise and put it again. What are the emigrant nobility to renounce? When they come into this country, they possess not one privilege which is not possessed by every body else. He had expected that the gentleman from Virginia, (Mr. GILES,) when last up, would have explained this matter, but he had not done it. The great bugbear was, lest a _ci-devant_ Lord may get a seat here, and that somebody may call him My Lord. But, even after you have got his renunciation of nobility, if other people choose to give him his titles, you can neither hinder nor punish them; so that the amendment is, to all practical intents and purposes, absolutely useless and nugatory. Some members of this House belong to the order of Cincinnati. If they come here with badges at their button-holes, can you forbid them? He wished that gentlemen would show what was to be renounced. There was nothing at all to renounce. The whole amendment is totally futile. Mr. DEXTER then rose, but the House had become so impatient for the question, that he was heard with difficulty. He only wanted to ask whether the call for yeas and nays was withdrawn or not? Mr. MCDOWELL said that he had already informed the House that he should insist on the call. Mr. AMES then asked, whether it was not competent to put the previous question, viz: Shall this call be now taken? The SPEAKER, in reply, said, that according to his judgment, the previous question could have been regularly taken upon any topic whatever, which produced a debate; but the House, by a recent decision, had determined that the previous question could not be regularly taken upon an amendment. He was then asked, whether the call of yesterday was valid to-day, or if it was necessary for the members to rise over again? Mr. SEDGWICK was clearly of this opinion; in which the SPEAKER, after some consideration, concurred, as some gentlemen had deserted the call, and he, in reality, did not know whether a fifth part of the members would support a call or not. It was then suggested, that there could not be a second call, if the first was disappointed; and some gentleman said, that he hoped no member would insist on a thing so extremely distressing to the feelings of many members. Several gentlemen had now attempted to speak at the same time, and the mischievous and unconciliating effects of the call were enumerated with much emphasis. Mr. NEW at last came forward, and declared that he moved for a call. Mr. MCDOWELL said the same. Mr. SEDGWICK then rose again. He appealed to the House, that, since he had a seat in Congress, he had never troubled them with a call more than a very few times; and he affirmed, upon his honor, that he never had moved for the yeas and nays at all, unless he was uncertain how the votes of the House would go. But the gentlemen who now moved for the call had not this excuse. They knew very well that they would carry their point, and that by a large majority; so that the insisting for the yeas and nays could arise only from a design that gentlemen who voted against the amendment should be held out to the public as wanting to introduce a nobility. He owed little to Mr. GILES for having withdrawn his motion, when others were so ready to renew it. Mr. NEW, on hearing these remarks, declared that he should withdraw his motion, since so much had been said about it. Mr. BLOUNT then rose, and said that it was needless to waste time, for the yeas and nays must and should be taken. Twenty-three members seconded his motion, and the SPEAKER declared that the point was now determined. Mr. DEXTER next rose, and observed that he had withdrawn his amendment, under a hope of conciliation, and that the yeas and nays would not be taken. But since this request had been refused, he should move it again, and have the yeas and nays upon that likewise, and before the other. He went over the beaten ground of the bad consequences of holding members up to popular resentment. Mr. VENABLE said, that if the gentleman were so disposed, he should willingly try the question at once on this motion, without farther investigation about it. On calling over the names, there were, on the amendment of Mr. DEXTER--yeas 28, nays 63. The amendment of Mr. GILES was then taken up, and determined in the affirmative--yeas 59, nays 32. _Ordered_, That the said bill, with the amendments agreed to, be recommitted to Mr. MADISON, Mr. DEXTER, and Mr. CARNES. MONDAY, January 5, THOMAS SPRIGG, from Maryland, appeared, and took his seat in the House. MONDAY, January 12. The House resolved itself into a Committee of the whole House, on the bill from the Senate, entitled "An act to authorize the settlement of the claim of Samuel Prioleau;" and, after some time spent therein, the committee rose and reported progress. _Defence of the Frontiers._ A Message was received from the PRESIDENT OF THE UNITED STATES, laying before Congress, for their consideration, the copy of a letter from the Secretary of War,[57] accompanied by an extract from a memorandum of James Seagrove, Agent of Indian Affairs. The Message and papers were read: Mr. MURRAY then moved that the Message should be referred to the same Committee of the whole House, to which had been referred the memorial from the inhabitants of the South-western Territory. Mr. NICHOLAS objected strongly to this motion, as showing too much deference to the Heads of the Departments. The paper in question ought not to have been sent to the House at all. Mr. MURRAY defended his motion. He inquired how the gentleman proposed to get information? Was he to manufacture it himself, or in what way could he better obtain it than from the Heads of the Departments? He had not, for his own part, that species of jealousy of them which the gentleman last up had. Mr. NICHOLAS repeated his arguments with some warmth. He said that the letter from the late Secretary at War was not official, but officious. It had a particular aspect which should forbid its getting any such mark of attention. It was neither more nor less than a commentary on some of the proceedings of the last session of Congress. If this was received, we might expect the table to be heaped with such things. Mr. SEDGWICK could really see no reason to reject the motion. The PRESIDENT had undoubtedly a right to send the communication. The subject was confessedly of the utmost importance. The member asked, if the House were to close their understandings, and refuse all information from that quarter? He repeated that he could see no ground of any sort for refusing consent to the motion. Mr. GILES was equally dissatisfied with the matter of this letter, and with the manner in which it had been introduced into the House. They were both equally exceptionable. The letter had come without any call. It was an Executive comment on a Legislative proceeding. It was a defence of a measure adopted by the Senate, and it condemned by implication another of that House. To Mr. G. it was a very extraordinary paper. The PRESIDENT was not to be supposed, however, answerable for the propriety of its contents. He should be very unwilling to take any notice of this paper at all. It had been justly remarked that it was a comment on transactions of the last session. A section of a bill passed in the Senate last session, and rejected by the House of Representatives, was inserted in it, and recommended. This paper might operate very materially on the deliberations of the House. This was a very bad precedent. The Executive had nothing to do with any question depending before the Legislature, and consequently had no occasion to send such a thing. Mr. HOLTEN imagined that the gentleman from Maryland (Mr. MURRAY) had extended his motion too far. It ought to have comprehended only the taking into consideration the Message of the PRESIDENT. Mr. MURRAY complained of the asperity of expression employed by a gentleman from Virginia, (Mr. NICHOLAS.) Not official but officious, and the intelligence artificial, were phrases to which he objected. The gentleman might have higher sources of information than he had. Mr. M. was willing to take up with information wherever he could get it, and he could have it nowhere with more propriety than from the national servants. It was no good reason to reject information merely because we had not asked for it. Mr. GILES had given a piece of intelligence which Mr. M. said was to him entirely new, viz.: that when the House wanted information, it was one of their rules not to refer for it to the Heads of Departments. The topic was great and important, and the House, before they rise, must examine in general into the situation of the South-western frontier, and our terms with the Indians. Mr. M. said, that the delegate from the South-western territory (Mr. WHITE) would certainly be glad to obtain the information conveyed in this paper. If any gentleman would point out any other way by which the House could, without absurdity, get from the PRESIDENT the information contained in this letter, Mr. M. should be willing to adopt it. Mr. BOUDINOT was entirely satisfied both as to the propriety of the matter contained in the letter of the Secretary, and as to the manner in which it had been introduced into that House. That the PRESIDENT had a right to consult the Heads of Departments, there could be no kind of doubt. Mr. BOUDINOT then read the following passage from the constitution: "The PRESIDENT shall be Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States. He may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices." Mr. B. defended the Message in all its circumstances, and in the most pointed terms. It was perfectly proper, and peculiarly so at this time. By the constitution, and by the rules and practice of the House, the PRESIDENT had a right to offer his advice regarding Legislative acts. Mr. W. SMITH had seen much needless jealousy in the House towards Heads of Departments; and the present he thought a refinement on that side. There had been two objections to the communication from the Secretary of War, the one as to the matter, and the other as to the manner in which it was introduced to the House; as to the latter, it was said to have been obtruded unasked. In this last objection Mr. S. saw nothing. He read a precedent from the Journals, which he insisted to be exactly similar, and where Mr. NICHOLAS himself had been one of a committee appointed to examine and report. As to the matter, we might as reasonably object to the Speeches of the PRESIDENT, reminding the House of business which had been before them, or recommending subjects to their notice. He considered the objections of both sorts as entirely unfounded. Mr. MADISON recommended the alteration suggested by Mr. HOLTEN, for restricting the motion of commitment to the Message of the PRESIDENT, and not to take any notice of the letter from the Secretary, which he considered as, in itself, extremely improper. It could not be meant as information, and the House had no occasion to take advice from the Secretary. The letter itself looked more like a forced thing, than any which he recollected to have seen since the establishment of the constitution. The subject, however, was delicate. The PRESIDENT had an undoubted right to give advice or information in any way which he thought best. It was totally ill-judged in the Secretary to have conveyed his opinion in the very words of a clause in a bill that had passed through the Senate last session, and been rejected in that House. The communication translated into plain language amounted to this: "The Senate last session had more wisdom than this House, and it is proper for this House to reconsider its proceedings, and improve by the superior wisdom of the Senate." Due respect should, however, be paid to the Message of the PRESIDENT. It ought to be taken into consideration, and Mr. M. was not willing to cast obstructions in its way, or to make needless objections. Mr. DAYTON said, that he was for referring the Report of the Secretary at War, with the PRESIDENT's Message, to the Committee of the Whole, and that consequently he was against striking out the words which expressed that intention. If, by omitting to take any notice of the Report of the Secretary, it was meant to reject the information on account of the source from which it came, it argued such a degree of jealousy and distrust as appeared both unreasonable and unconstitutional. If, on the contrary, the object was not so much to reject it, as, by the manner of referring the Message, to convey any reproof or disrespect towards the late Secretary of War, Mr. D. should be still more decidedly averse to the modification proposed. He lamented it as an unhappy circumstance for this country, that the gentleman who was lately the Head of the War Department had thought proper to resign. That gentleman had executed the complicated and important duties of his office with zeal, fidelity, and ability, and ought to be protected from any proposition or remark which glanced unfavorably at him, or might wound his feelings at the moment of his leaving us. Mr. D. then adduced the Report of the Secretary of War in 1790, to the PRESIDENT, on the subject of the militia system, as a striking precedent. The Secretary there informed the PRESIDENT, that he had submitted to him a plan for the arrangement of the militia. The PRESIDENT sent a Message with the plan to the House of Representatives. What were the steps then taken in that parallel case? Was the Message then alone referred as it is now proposed by some gentlemen? The journals, on the contrary, prove, that the Message and plan were referred to the Committee of the Whole. It was possible, Mr. D. added, that the present Congress might deem themselves wiser than their predecessors. It was possible that many might think it safest to shut their ears against all kinds of information from the Heads of Departments, or even from the PRESIDENT himself. There might be some who would be willing to free the House of Representatives from certain obligations, or shackles under which the constitution placed them, by tearing out a leaf from that instrument, but he ventured to say that it was too soon yet to attempt it. Mr. SMILIE complained of the style of the memorial from the Secretary of War, and, as a specimen, he read the following passage: "It is a melancholy reflection that our modes of population have been more destructive to the Indian natives than the conduct of the conquerors of Mexico and Peru. The evidence of this is the utter extirpation of nearly all the Indians in the most populous parts of the Union. A future historian may mark the causes of this destruction of the human race in sable colors. Although the present Government of the United States cannot with propriety be involved in the opprobrium, yet it seems necessary however, in order to render their attention upon this subject strongly characteristic of their justice, that some powerful attempts should be made to tranquillize the frontiers, particularly those south of the Ohio." In reading the above extract, Mr. M. went no farther than to the words _sable colors_. Mr. S. SMITH desired that he should read on, that the House might hear that no insinuation was intended, as if the present Government of the United States had countenanced such ravages. Mr. SMILIE said, that he knew what came after, but who would compare the first settlers of North America to the Spaniards, who destroyed in their mines thousands and millions of the Indians, and whose memory had been consigned to the execration of centuries? Mr. AMES rose. Just when he had begun speaking, there came in a message from the PRESIDENT by his Secretary. On this, Mr. A. observed, that, perhaps, while gentlemen were now speaking there might have arisen a new subject of dispute. Perhaps by the new doctrine, we should reject all communications from that quarter. The message having been delivered, Mr. A. went on to remark, that turning loose the American militia to guard the South-western frontier, was a system of slaughter, of desolation. It was to make a Potter's field a hundred thousand miles in extent! It was a system to waste the blood of the white man, and to extirpate the Indians. The militia were not the people to prevent those kind of injuries against the Indians which were the cause of hostilities. But gentlemen who were now so delicate as to the style of memorials, would do well, if they extended that delicacy to other memorials which had been presented to that House, and referred by the consent of those very members to select committees. Papers had been offered to that House, wherein its conduct had been criminated and reprobated in the most unqualified language of detestation. Yet gentlemen, on some of these occasions, showed no resentment. Mr. A. ridiculed the idea of the present motion as introducing a new and dangerous precedent. The opposition to it came exactly under that description, for it was a direct attack upon the principles of the constitution. Mr. FITZSIMONS approved of the motion. It had been asked if the PRESIDENT was responsible for the contents of this Report from the Secretary of War? Mr. F. did not think so; but if he had not communicated it, the member would have thought him responsible for the omission. The PRESIDENT had a right to ask advice from the Heads of the Departments. Mr. F. never knew a message from the PRESIDENT which required a reference, that had been refused it. As a matter of course, as a matter of right, it ought to be referred. Mr. MURRAY rose and read that passage in the Report of the Secretary, which Mr. S. Smith had desired Mr. SMILIE to read, and which he had not read. [They are inserted both together at full length as above.] Mr. NICHOLAS moved an amendment, and which was seconded, for striking out the latter part of the resolution proposed by Mr. MURRAY. This made it merely a reference of the Message from the PRESIDENT to the Committee of the Whole, and omitted all notice whatever of the Report from the Secretary of War. Mr. SEDGWICK really thought this a squeamishness for which he saw no manner of foundation. Mr. GILES arose. He said that a gentleman from Massachusetts had asserted that some members considered the whole constitution as entirely in this House. This imputation was a thing of so serious a nature, that Mr. G. wished the gentleman to point out the person to whom he alluded. If it respected Mr. G. himself, the assertion was unfounded. It was not true. He had the highest respect for every branch of the constitution. This was a charge frequently made by one side of the House. Gentlemen had called the contents of this paper information. He saw in it nothing but what the House knew without the assistance of the Secretary. He considered the report as an effort upon the opinion of this House, as an attack upon its independence, and that in a very indelicate way. He thought the report in all respects unworthy of the notice of the House. He hoped that this paper would not be committed, but that the Message of the PRESIDENT would be so. [The passage in the report repeatedly referred to as having been borrowed from a bill passed in the Senate, last session, is in these words: "That all persons who shall be assembled, or embodied in arms, on any lands belonging to Indians, out of the ordinary jurisdiction of any State, or of the territory south of the Ohio, for the purpose of warring against the Indians, or committing depredations upon any Indian town, or persons, or property, shall thereby become liable and subject to the rules and articles of war, which are or shall be established for the government of the troops of the United States." This was a section of a bill which the Senate passed the last session, entitled "An act for the more effectual protection of the South-western frontiers," but it was disagreed to by the House.] Mr. KITTERA considered this as entirely a dispute about words, or plainly about nothing at all. Gentlemen from Virginia were more jealous of the Executive than even the constitution itself. Mr. K. was satisfied that the PRESIDENT had a right to interfere in the Legislative proceedings with his opinion and advice. There was neither principle nor precedent for the amendment of Mr. NICHOLAS. The dispute was merely about words, because if the Message of the PRESIDENT was referred to a Committee of the Whole, the report in question would, in any case, be referred along with it. Mr. AMES rose again to make some remarks on the danger of extending too far the privileges of the House of Representatives over the other House. The moment that this House is turned into a Convention, there is an end of liberty. As to impropriety and indelicacy of style, he could wish that the cognizance of members might extend to memorials addressed to the House, that we may not have addresses disrespectful to it. He entirely vindicated the conduct of the PRESIDENT as to this matter, and saw a peculiar propriety in his having made the communication at present on the table. The question was loudly called for; but Mr. NICHOLAS rose in reply to Mr. AMES. Would any man call this a communication from the Executive? Mr. AMES spoke a few words in a low tone of voice. Mr. N. proceeded, "The gentleman prevaricates." "I prevaricate, sir!" rejoined Mr. A. Mr. N said, that at best he went off from the point. As to the precedent produced by Mr. W. SMITH, it was quite inapplicable. It bore no resemblance or connection to the one before the House. The other adduced by Mr. DAYTON was, he admitted, in point. But that gentleman would admit that it occurred in the infancy of the constitution, which was an excuse for it. He hoped that the amendment would go through. Mr. TRACY quoted something which Mr. NICHOLAS had said. That gentleman immediately answered, that he had been misquoted. I know, said Mr. TRACY, as well as that gentleman, what he said. Mr. NICHOLAS got up a second time, and repeated what he affirmed were the words which he had really spoken. He did not say so before, said Mr. TRACY, but I am content that he should say so now. I only beg that he may not interrupt me. As to the motion for striking out one-half of the resolution, Mr. TRACY looked upon it as out of all propriety. The PRESIDENT had sent a letter of two lines, enclosing a report from the Secretary of War. To refer the former without the latter, would be like referring to any person the superscription of a letter, but adding, at the same time, you must not look at the inside of it. Mr. T. did not care from whom the report came. If it contained useful information, that was all he wanted to know. And, supposing it had been sent from a Democratic society, that of itself would with Mr. T. be no reason to refuse it a reference. He then observed how much more deference had been paid by that House to Democratic societies than was now paid by some gentlemen to the PRESIDENT. Much care had been taken that a vote of censure should not be passed on them. It looked as if gentlemen wanted to grasp all power within this body. The amendment was wrong in point both of principle and practice. To refer a mere superscription, (for the letter of the PRESIDENT was nothing more,) would look strange enough. The resolution, as amended, was in a state of hostility with common sense. Mr. LYMAN was in favor of the amendment for striking out the words in the latter part of the motion. He thought it improper to refer to a Committee of the whole House the report of the late Secretary of War, because it was of an amphibious nature. It was not a mere official statement of supposed facts, but the reasoning on these facts. He was sensible that precedents could be found on the journals, which sanctioned a commitment of similar reports; but, for his part, he had ever thought the practice improper, and he must meet the question as it appeared to him. He said, that the constitution authorized the PRESIDENT OF THE UNITED STATES, nay, it made it a duty incumbent on him, to give information, from time to time, of the state of the Union. He was also equally required to suggest, for the consideration of the House, whatever he thought expedient; but there was a most material difference between communicating information, and argument or inferences deduced from it. The official information would always, without doubt, be reports from the different departments, and, therefore, would have the credit and weight which was due to it; but whenever plans or arguments were communicated, they should have the responsibility attached to the signature of the PRESIDENT. What was the case in the present instance? Had the Executive avowed the plan of the Secretary of War, or his reasoning? He was persuaded, from the communication itself, that the PRESIDENT did not at all espouse the report as his own wishes or opinion; for there was nothing in the Message implying that the report had been officially required, or that any one sentiment was from the high authority of the Executive. As to the Secretary of War, Mr. L. had a respect for him, and believed that he had discharged the duties of his office with ability and fidelity, but it implied no censure to decline hearing his arguments. All that the House wanted was facts and information. They were fully competent to the suitable deductions. As to the observation of his colleague, that the House were abridging the powers of the Executive, it was so far from being the case, they were only reclaiming what had been remitted and disused; and he had no fears that they would abuse it. Mr. HILLHOUSE thought that gentlemen were spending time in a very trifling way. It is the duty of the House to hear information from every quarter. He was against the amendment. Mr. J. WADSWORTH said, that some gentlemen had been offended at the comparison in the report between the North American settlers and the Spaniards. Mr. W. remarked, that if gentlemen would look into two historians, the one of Virginia and the other of New England, they would see bad enough work. If the Spaniards, or any other nation in history, had acted worse, he was much at a loss to comprehend what their proceedings could have been. As to Pennsylvania, much had been said of the purchases from the Indians of their lands; but where was the difference between shooting an Indian and catching him in a trap? And, as to the conduct of the Pennsylvanians, when they drove the Indians back to Pittsburg, that was sufficiently cruel. We have murdered them from the beginning, said Mr. W. As to the question on the amendment, he knew perfectly well that the PRESIDENT had acted exactly conformable both to the constitution and the practice of the House. To refuse committing the report of the Secretary along with the Message, would be an affront, not to the Secretary, but to the PRESIDENT. Mr. MADISON looked upon the expression, as to the Spaniards, as being extremely exceptionable. It had escaped, perhaps, inadvertently. The Secretary would not have used it in a report to the House, nor would the PRESIDENT have employed it, as from himself, in any Message to the House. Mr. M. was for the amendment. It was natural enough that the Secretary, when communicating his sentiments in a private manner, should make use of illustrations for enforcing his opinion that he would not have adopted in an official paper. Mr. PAGE was persuaded that the Report from the Secretary of War contained nothing new, or, if new, nothing which may not as well be used when in the hands of members, as when in those of a Committee of the Whole. If the amendment had been to throw the Message under the table, more warmth could not have been shown, in charging the opposers of the motion for reference to a Committee of the Whole with indecency to the PRESIDENT, and with a design at usurpation of his power, &c. It is said, that a jealousy has been betrayed by some members of an encroachment on the privileges of this House. Surely, a most unnecessary and unreasonable suspicion has also been betrayed by others, of a design in the gentlemen who supported the motion of Mr. NICHOLAS, to encroach on the powers of the Executive. Expressions have been used not consistent with decency and order. Gentlemen have been charged with a factious spirit, favoring indecent remonstrances, and with slighting and treating contemptuously the Message from the PRESIDENT. Some members have, at another time, been charged with speaking, not to the House, but to their constituents, in order to gain their votes at an approaching election. Mr. P. said, that his respect for the Government, and for the PRESIDENT, was equal to that of any man in the House. He was far from wishing to reflect on the late Secretary of War. Mr. P. had never, by any vote, censured his conduct, and he entertained no wish for his resignation. But he was at liberty to think the report given to the PRESIDENT wrong, the communication of it to the House as unnecessary, and even if necessary, as sufficiently acted upon when printed and put into the hands of the members. He might have no doubt respecting the constitutionality of the Message from the PRESIDENT, or of the report of the Secretary to him. He might require no precedents from the Journals to prove that the motion for referring that Message was perfectly in order. But he might doubt whether the substance of the report was of such a nature as to require the consideration of the Committee of the Whole. He might also doubt whether the report was of sufficient importance to require the most mature consideration. There might be circumstances attending the manner of its introduction, as some members allege that there were, which render the report improper to be referred to a Committee of the Whole. It would be a precedent for referring every Message, and that would be attended with unnecessary delay. It will be paying a superfluous compliment. If the information came from the poorest citizen, and was sufficiently important, he would refer it, but though it came from the PRESIDENT or Senate, and contained nothing which, in his opinion, required a commitment, he should vote against it. Mr. P. was for the amendment of Mr. NICHOLAS. Mr. S. SMITH remarked, that the principal objection made by the gentleman who spoke last, (Mr. PAGE,) to the commitment of the report was, that it contains nothing new. The observation will apply with equal justness to a great part of what has been said on the subject before the House. He wished, therefore, that the question might be immediately taken. The amendment was negatived without a division, but by a very great majority. The motion, as it originally stood, was then put and carried. TUESDAY, January 27. _Reduction of Salaries._ The House resolved itself into a Committee of the whole House on the motion of the twenty-third instant, "that a committee be appointed to bring in a bill or bills to amend the act entitled 'An act for establishing the salaries of the Executive Officers of Government, with their assistants and clerks;' and an act 'for allowing compensation to the members of the Senate and House of Representatives of the United States, and to the officers of both Houses;' and to reduce all such salaries as, in the opinion of the said committee, after having made due inquiry, ought to be reduced." Mr. CLAIBORNE said: A worthy gentleman from Maryland, the other day, suggested an amendment to the proposition now before you, which I understood to contemplate the increase of some salaries; and, if that gentleman can reconcile it to himself and his constituents, let him move and carry it, if he can. For my part, I am pleased with the proposition as it is, and yet it may have great imperfections. It is very common for fond parents to be blind to the imperfections of their own offspring; and, as this is a production of my own, it is probable that I may be under the same delusive prejudices, but I hope that cheerful acquiescence which I have always shown to the majority, has sufficiently evinced that I am no bigot to my own opinions. I said, the other day, that I was determined, if the proposition must die, it should be by assassination; but as, in this, a degree of guilt is implied, and might be attended with serious consequences to those concerned in it, I should be satisfied to give it a fair trial, and, if it must die, that it may be by legal and fair adjudication, or, in other words, after full and fair discussion of its merits. We now have fairly before us a proposition that contemplates a redress of these grievances, which, since the adoption of the present form of Government, have been a subject of grievous complaint and heartburning amongst citizens of the United States. Many of them, and, I believe, a very great majority, conceive that the exorbitant salaries established to the Legislative, Executive, Judiciary, and their assistants, are not consistent with, or can possibly contribute to the existence or well-being of a Republican Government, which, in its nature, holds out the idea of equality and justice, but which, in the present mode of administration, cannot fail to have a direct opposite tendency, inasmuch as the very profuse salaries that all who have the good fortune to get places under the pay and influence of the present Administration, if they make a prudent use of them, must ultimately enrich and place them in a situation so far above the vast bulk of the citizens, whose industrious fingers are not permitted a single dip into those very coffers which have been swelled by filching a little from that hard-gotten pittance already far inadequate to the necessary but very ordinary subsistence of their families, as at last to endanger the very existence or shadow of this glorious and dear-bought Government, that has already raised the drooping and once-dejected heads of the poor American citizens, who now glory more in having thrown off that subordination that was assumed and exercised over them under the late detestable Monarchical Government, by their rulers, or public officers, than even in their lives and fortunes. Men begin to know the inherent rights of human nature. They have dipped into and tasted a little of the sweets of political regeneration, and, amongst all classes of your citizens, you may discover a zeal that amounts to enthusiasm, that lives and burns and grows almost to a prodigy. Instances are not wanting, sir, to evince that thousands of those who were not fond of this Government at its adoption, are now, on all occasions, ready to step forth in its support, and the laws that are passed consistent therewith. But this does, by no means, argue that they will submit for ever to repeated abuses of the Government, which may ultimately tend to its overthrow; and exorbitant salaries, with other profuse appropriations of the public money, at a time when the nation is groaning under an immense weight of foreign and domestic debt, which (calculating upon the blessings of peace, and of course, a very increasing revenue, not reasonably to be calculated on so long a time,) it is agreed on all hands will take a term not less than thirty-two years to extinguish. Here I shall again be told, that the price of house-rent, and every other necessary of life, has increased, and may continue to increase, so as to drive all your officers out of your service. To this I beg leave to answer, that, if you continue such high salaries, or increase them, as in some instances it is asked, and because of the present enhanced price of the necessaries of life, I think the evil will increase in proportion to the immense sum of money that you throw into circulation, for a redundancy of that, or any thing else, will always diminish the value; and, if the present custom of disbursing the public money is persisted in, the whole wealth of the United States must shortly centre in and about Philadelphia! But, sir, by the adoption of public economy, we may shortly become able to obviate this great evil, and make our disbursements more diffusive, by paying out money to those who have demands upon your justice, distributed over the United States, if any but those who reside around the seat of Government have any demand upon your justice or goodness. I am apprised that the proposition is a very unpopular one here, and that many will perhaps knit their brows at me; but, sir, when I entered into public life, it was without any cringing views. I meant not to court smiles, or fear frowns, and I had no doubt but I should meet my share of both. When I gain the former by proper conduct, I have pleasure in it; when the latter by improper conduct, I am sorry for it. But it will be much to be lamented if ever we see the day when the people shall be suffered to complain from year to year of any grievance, and their Representatives shall be ashamed, or afraid, to make those grievances known, or ask redress, lest they be laughed out of countenance, or lose favor at Court. But so hardy am I, if you prefer that expression, that, while I have the honor of a seat in this House, none of those considerations shall ever deter me from stepping forth in their behalf; but, be the result of this proposition what it may, I now warn you against evils that _may_ come, as you have been heretofore warned of evils that _have_ come, for the obligations of power and submission are reciprocal. It is as much your duty to pass wholesome laws, as it is the duty of the people to obey them. And now, having done my duty, I shall take my seat, content to abide the result, but hope a committee will be appointed. Mr. NICHOLAS declared that he would be very willing to vote for the appointment of such a committee, if he could see any good purpose to be derived from it, or if the gentleman who laid the resolution on the table could give him any information that tended to prove its expediency. For his own part he had but a small family, and of that he had left one-half behind him in Virginia, yet he found that his allowance as a member of the Legislature was barely sufficient for supporting this half of his family, though he lived with as much economy as he ever had done in his life. He was certain that he should not take one shilling of public money home with him to Virginia. He requested gentlemen to remember that it was not the present Congress who had given six dollars per day to themselves, but that it had been fixed by their predecessors, and fixed at a time when living was fifty per cent. cheaper than it is now. Mr. BOUDINOT observed, that he should not have troubled the committee on this question, had it not been for several considerations particularly applicable to himself. He was as impartial on the present debate as any member on the floor. After the close of this session of Congress, he never expected to receive a farthing of public money again, and therefore no interest of his own could sway his judgment improperly to object against the resolution on the table. He had been among the number of those members who originally were for fixing the compensation of members of Congress at a less sum than six dollars; not because he thought it beyond the amount of their expenses, but, from an idea of the then deranged state of the finances, and that, if sacrifices were to be made, they should begin with this House. He appealed to his uniform conduct for six years past, to prove that he had always opposed an increase of salaries or other public expenses, when the interest of the Union did not require it. He did not doubt that the gentleman who brought forward this resolution thought he was doing his duty in advocating it; and Mr. B. thought it was equally the duty of the committee to be convinced that they were not wasting their time in unnecessarily proceeding in business, without having some foundation for rational inquiry. Mr. B. did not doubt but there were uninformed individuals, who might object to six dollars per day; but he was confident that the well-informed among the citizens of the United States, and those who reflected on the subject, would think (at the present day at least) it was not more than would barely pay the reasonable expenses of gentlemen who attended to their duty here in a proper manner. Almost every article of consumption was from twenty to thirty per cent. higher now than it was at the commencement of the Government. The Constitution of the United States, as the act of the people and the public voice, contemplated a compensation to the members of Congress. Did not this mean something more than the bare discharge of their expenses? Yet Congress had not gone beyond it. When Congress sat at New York, Mr. B. said that he was in a situation more favorable in point of expense than any gentleman on the floor, who did not reside in that city. He boarded with a near relation, and was in a manner in his own family; and, although he paid the usual price of boarding as at other places, yet there were a thousand nameless small articles which saved him many advances. He was within sixteen miles of his own family, from whence he received many things that prevented his laying out money. During three sessions, he kept an exact and faithful account of his expenditures, and, at the end of that time, the balance was but 43s. 4d.; but on which side of the question his memory did not allow him to say. At present, he was also under very peculiar advantages, yet he was confident that, at the end of the session, he should not have any balance in his favor from his compensation as a member. Mr. B. appealed to every gentleman's own knowledge, and particularly to the gentleman who made the motion, if he thought that what he received would more than pay his expenses. Gentlemen were often crying out against an Aristocracy in this country; yet measures of this kind tended to establish one, by reducing the compensation of members, so that no citizen but the rich and affluent could attend as a Representative in Congress. This certainly was the most effectual way of bringing about a dangerous Aristocracy in the United States. Should not men of abilities, though in the middle walks of life, be encouraged to come forward and yield their services to their country, without being dependent on any person or set of men whatever? Is it not sufficient that their time and talents are given to the public? Must they pay their expenses too? Mr. B. was aware that the resolution proposed related to the officers of Government as well as members of Congress, but he had confined his remarks to the last, as the part of the subject he was best acquainted with. He begged gentlemen to look around and point out the public officer who received more than a reasonable reward for his services. Professional men, of the first abilities, were absolutely necessary to carry on the public business; and could any one, fit for his office, be shown who could not do full as well, if not much better, in the exercise of his profession in private life than he did in the public service, if pecuniary matters were his only object? In short, (Mr. B. said,) this House was placed between Scylla and Charybdis. The public officers were complaining, and even resigning, for want of sufficient compensation for their services; on the other hand, an attempt was now made to reduce their salaries still lower, on the supposed clamors of the people. Mr. B. did not believe they could be denominated those of the people; neither did he see any evidence of the fact. He did not consider the complaints of a few individuals as the public voice. Ought not the gentlemen to come forward with some kind of calculations or estimates to have shown that certain salaries were too high, or more than the services performed were entitled to? This had not been done; but the committee were urged, at this important moment, to proceed to an inquiry, which every gentleman on the floor already knew as well as he could do by the most labored investigation. He therefore concluded that, to agree to the resolution, would be a waste of the short time that yet remained of the session, and an unwise measure. Mr. B. would have contented himself with joining the committee in a silent vote on this subject, but he thought the observations made in support of the measure ought to receive some answer, if not to convince the committee, yet to satisfy their constituents that there could exist no necessity for a present inquiry of this nature. Mr. W. SMITH said, that the resolution was, in its present shape, so extremely vague, that one did not know how to give it a definition or a vote. Different objects were lumped together. If, by an inquiry, the gentleman meant to examine into the wages of members of this House, it was quite needless to appoint a committee, because every member can at this moment speak for himself. But Mr. S. did not consider the present time as the most proper for beginning to reduce salaries, when, within the last twelve months, there had been three resignations, viz: the Secretary of State, the Secretary of War, and the Secretary of the Treasury, and all chiefly for one reason, the smallness of the salary. I have no doubt (said Mr. S.) of there being complaints, and, if the salary was reduced to three dollars per day, there would be still complaints, as we see is the case with the members of the Legislature of Pennsylvania. He only wished that the committee would rise, and he should then vote in the House that they might not have leave to sit again. The mover of this resolution had mentioned the danger of meeting with reproaches from the people, who thought their salaries too high. Mr. S. saw very little in this matter, because the people who railed at the salary of six dollars per day, were only anxious to get in themselves, and embraced this topic as an expedient of ousting those members whom they wanted to succeed. Mr. GOODHUE wished to ask Mr. CLAIBORNE one question, "Whether he found himself growing rich?" Mr. SEDGWICK saw no occasion for rising, because the committee were perfectly competent at this moment to determine the question. Mr. RUTHERFORD was for reducing the salaries by one dollar per day, and one dollar every twenty-five miles that the members had to travel. This would be a reduction of one hundred dollars per day, which would be much better bestowed upon the innocent widow of the veteran, who had fallen in the service of his country. Mr. PAGE said, that he did not think the resolution, as it was worded, was a proper subject for discussion in that place; for the House, and not a committee, could properly resolve that committees should be appointed. However, as the resolution had been submitted by the House to the consideration of the Committee of the Whole, it must be examined; but, as to the object of it, that he thought was more properly before the committee, as proposed by the resolution; for, as I have remarked on other occasions, if, instead of discussing a question fully, and collecting the sense of all the members in a Committee of the Whole, it be referred to a committee of one member from each State, that committee might be unanimous in favor of a resolution, against which, eighteen members for Virginia, and a proportionate number from other States, might vote; or, by the weight of that committee, the resolution might be carried, which could not have passed had it been fully and freely discussed in the House. Here, then, my colleague's question should be examined, as I cannot say (as has been said by one of them) that I had no hand in fixing the salaries and pay of the officers of Government and members of Congress, having actually voted at New York for them as they now stand. I think I may, with propriety, give my opinion respecting it. And I am clearly of opinion, sir, that the question arises from a misapprehension of the subject to which it is applied; for there cannot be a greater mistake than to suppose that parsimony in a Republic is necessary to its support. A certain degree of economy is so; but parsimony, applied to the salaries of public officers, and the Representatives in particular, may be ruinous to the interests of a Republic. Should the salaries be so low that men of small fortunes cannot afford to serve their country, it must be deprived of their assistance, and we must accept of the services of the rich, who, to have their wills, though low, will serve even without pay; or, the State will be served by artful demagogues, by ready, designing men, who may, in pursuit of profit as well as popularity, cut out places for themselves and friends, producing at length confusion and anarchy, or, at least, such a bungling system of legislation as will cost more time and money to rectify their blunders than the most extravagant salaries could amount to. What true Republican could wish to exclude from a seat in Congress a physician, lawyer, merchant, farmer, or any other person possessed of such well-known abilities and virtues as to attract the attention and respect of a district which might wish to intrust its interests to him as a Representative? Or, rather, who ought not to desire that, as all offices are open to all, that the son of the poorest citizen might be enabled, if qualified to fill a seat here or elsewhere, to do it without sacrificing his private interest? Is it reasonable to expect that men should sacrifice domestic ease and the interests of their families to serve their country? It is not just to require it. Human nature, except on great and trying occasions, cannot obey such a requisition. My colleague says that he is not a man of fortune; but, has he not a profession by which he can make more than by his attendance on this House? If not, he has not a right to require such a sacrifice of any other person's time and talents. The constitution, far from requiring any thing like it, demands that compensation shall be made for all services; and who will desire less for services than a mere subsistence for a person whilst actually employed in such service? I am sure that less than the present pay of members of Congress would not, in their present situation, be a subsistence. I recollect that, when the House of Representatives were debating, in the first session, at New York, whether their daily pay should be four, five, or six dollars, I affirmed that the expenses of the members where I boarded required that it should be six, that the State of Virginia having once allowed her delegates to Congress eight dollars, and never less than six, when she bore the whole expense, could not object to her Representatives receiving that sum, when divided, as it was, amongst the States, and spread out over the various duties and taxes of the United States. I asked those, as I might ask my colleague now, who of our constituents could calculate what he would save by any proposed reduction of our pay? I have long suspected, sir, that Republics have lost more by parsimony than they were aware of, and that a misapprehension of some practices in ancient Republics has been artfully kept up, so as to favor Aristocracy and Monarchy. The British Parliament has now no pay; but have they been as independent as their countrymen wished them under the British Government? In reply to the member who had objected to the pay of the SPEAKER, and the difference between the pay of members of the two Houses, Mr. P. said, that whoever would consider the duty of the SPEAKER; his long confinement to the chair; his painful attention to every word spoken in the House, and his responsibility for the correctness of the journals--an examination of which must take up much of his time--would surely not think his pay too great. As to the difference between the pay of a Senator and Representative, he had voted for it, from a belief that a Senator having more services to perform than a Representative, had a right to more pay. The Senate not only have to originate bills as this House has, and to revise and amend bills sent from hence, and often to correct the careless errors they contain, but to make themselves acquainted with the law of nations, and to be prepared to judge of treaties; and also of offences brought before them by impeachments. When the Senators may have gone through the labors of a long session, and the Representatives are returning home, they may be called upon to consider certain nominations to offices, or certain treaties; and at another time to try certain impeachments. Besides all this, the age of a Senator must be such, by the constitution, that it is probable that his family is larger, and his pursuits in life more fixed and profitable than those of a Representative, who may be elected when only twenty-five, and therefore his services must require higher compensation. As to the PRESIDENT and VICE-PRESIDENT's salaries, I voted for a larger sum than was allowed to either, and thought that the disproportion between them was too great. With respect to the judges, I still think their salaries too small, and so should every one think who will consider the vast importance of their office; the labor of both mind and body which it requires; the laborious course of study through which a man must have gone to be qualified for it, and the lucrative employment such a one must have given up to undertake it. In short, I do not recollect a salary which I think too high. And I must repeat it, that I do not think that large salaries in a Republic can injure it; but that small, inadequate salaries may overturn a Republic. I am sorry that the question has been brought before us respecting our own pay this session, because the elections in Virginia are not over; it would become us much better another session, if re-elected, to reduce it, than to do so when we may be left out. Besides, if I vote for a reduction, I may be suspected of courting popularity; and, if against it, of despising the opinions of my constituents, if they have adopted those which some members tell us prevail amongst their constituents. I do not like to be in such a dilemma, nor to have my independence unnecessarily tried. I wish, as the question is before us, that it may be fully debated here, and even referred to the further consideration of a select committee; because I think the opinions even of a single member and his district should be treated with respect; and that when they have been fairly proved to be founded in error, there will be an end of complaints, and an acquiescence in the decision of this House. Mr. GILLESPIE proposed an amendment, the scope of which was, that a committee should be appointed to examine and report whether any and what alterations were necessary in the act fixing salaries to the officers under Government. He suggested this amendment from no motive whatever but what was fair. There had been, and there still was, a degree of clamor upon the subject, and it was the duty of the House to pay attention to the voice of the public, whether right or wrong. If, upon investigation, it should appear that the salaries were not higher than they ought to be, then the report of the committee would be the best method for stopping the public clamor. Mr. CLAIBORNE hoped that the committee would not rise, but decide the point. He trusted that no gentleman would again point at him, and say that the motion came out of his brain. There was not one officer under Government whom he would point out and say, that such an officer had too high a salary. He had expectations that this discussion, by bringing forward the observations of several gentlemen, would in some degree satisfy the people, and that there would be no more pointing out with a finger and saying, "_There goes a six-dollars-a-day man_." Another member observed, that it was the duty of the House to attend to the voice of their constituents, and for this reason, he should vote for a committee. He would mention what he had always considered as a most odious distinction, the additional dollar per day, which is to be paid to the Senate from and after the 4th of March next. [The reader will observe, that by the act, members of the Senate were to have seven dollars per day, but the additional dollar was not to commence till the lapse of six years,[58] when all the Senators of the first Congress had gone out.] There was another thing for which he never could see any reason, and that was the giving of the twelve dollars per day to the SPEAKER. Mr. GILES was perfectly convinced that the allowance to the members is small enough already. The saving of a dollar per day suggested by Mr. RUTHERFORD, would be but little, and it was beginning at the worst of resources. The pay ought to be such as would bring persons of middling circumstances into the House; persons neither too high in life nor too low. If the pay was greatly reduced, none but very rich people could afford to give their attendance, and if too high, a seat in the House might be an object to persons of an opposite description. Formerly the State of Virginia allowed eight dollars per day to the members of its Legislature. This sum had since been reduced to six dollars. Mr. G. mentioned this to show that in the practice of individual States, there might be found a precedent for the allowance to members of Congress. He was for voting directly. Mr. G. said, that there was a country from which America had copied a great deal, and very often too much; a country which still had a very pernicious influence in the United States. The members of the British House of Commons received no wages, while the officers of State had immense salaries. It was however understood, that the British House of Commons were very well paid for the trouble of their attendance. Mr. G. did not wish to see scenes of that kind in this country. Mr. HILLHOUSE hoped that the House would have done with this thing immediately, as it had now answered all the purposes expected from it, and he trusted that all motions of that sort which had an eye to certain operations out of the House, would meet with the same fate. The motion was negatived by a very great majority. [Before the adjournment, the SPEAKER suggested to the House a considerable inconvenience, occasioned by gentlemen being introduced, and occupying such parts of the House without the bar as were particularly allotted for the use of the House, and of which several members complained. There was often so great a crowd that members could scarce walk round when they had papers to present to the Chair. The passage was often obstructed when messages were to be delivered, and frequently there was no room left for the members when they wished to confer privately with each other. As he did not conceive himself authorized to give special directions without orders from the House, he would take the liberty to suggest to the members of the House, when introducing their friends, the propriety of placing them under the galleries to the left of the Chair, and reserving the space to the right of the Chair for the members of both branches of the Legislature, the diplomatic gentlemen, judges, and other officers of Government; which was generally acquiesced in.] THURSDAY, January 29. AARON KITCHELL, returned to serve in this House, as a member for the State of New Jersey, in the room of Abraham Clark, deceased, appeared, produced his credentials, and took his seat in the House; the oath to support the Constitution of the United States being first administered to him by Mr. SPEAKER, according to law. _Thomas Person and others._[59] The House then resolved itself into a Committee of the Whole, Mr. COBB in the chair, to resume the consideration of the claims of Thomas Person and others, to certain lands lying on the frontier of the State of North Carolina, and ceded by the Commissioners of the United States to the Indians. Mr. GILLESPIE took up the subject in the same stage in which it stood before he spoke the preceding day. He said, let us examine the conduct of other States. Did not New York dispose of lands within her chartered limits, and from the sales become wealthy, as she has large sums in the funds? The State of Virginia took advantage of the purchase of Henderson and Company, for that part now called Kentucky, although they now exclaim that the purchase was unlawful; yet, unlawful as it was, it has extinguished the Indian title to those lands. Now, if the purchase of Henderson and Company had this effect on the north-east side of Walker's line, which divides Kentucky from the South-west Territory, is it not just that it should have the same effect on the south-west side, when made by the same persons, on the self-same day? And surely the rights of North Carolina must be at least equal to those of Kentucky, in every thing except that of power. But is Congress going to legislate by strength of arm? I hope not. It has been admitted, by some who have spoken on the subject, that the citizens of North Carolina have a right of redress by law, and by others, against her own Legislature. To the first of these I ask, against whom is the suit to commence? Are our citizens, thus bereft of their property, to be compelled to litigate suits at law for property taken for public use, and for which they have a just claim against the United States; or have they not an equal right to compensation for that which the United States, by their agent, took from them, as other citizens are entitled to, for property piratically taken on the high seas, by the robbers of Britain? And do we, in the last case, say to these unfortunate sufferers, commence suits against those who have injured you? No. Government has taken the litigation in hand, at her own cost. Let her do so with the citizens of North Carolina. Or, will the Government of the United States support the claim of the injured against her own Executive? Will they do it against the State of North Carolina? They cannot; and from what has been said in this matter, it is plain that, as the Government of the United States has converted the property of the citizens of North Carolina to the uses of her Government, compensation ought to be made out of the public purse, as the contrary would, on her part, destroy that bond of union between her, as the sovereign power of the United States, and her citizens, and as not only bound to govern with justice, but also to protect them from all manner of injury, as well domestic as foreign. Mr. G. apologized, that he was without authority in the House, but would pledge his reputation that what he should advance, if not verbatim, should be in substance with the author quoted: "It is admitted by many, that the sovereign authority possesses a power, under the laws of eminent domain, to alienate the property of the subject, for the benefit of the Commonwealth, by impending public necessity against private injury." But, without doubt, they "that have lost or sacrificed their property to the public safety in such extremity, ought to have satisfaction made, as far as possible, by the Commonwealth. Any thing short of this would destroy the reciprocity between the sovereign and subject."--_Puffendorf_, _b._ 8, _c._ 5, § 7. But can public necessity be urged in the present case to justify this kind of political robbery? I answer, no. If the Indians are to be kept in peace by bribes, why not, in this, as in other similar cases, by presents and pecuniary rewards? Is it not an indignity to the United States to purchase peace from an Indian nation, at the expense of a part of her citizens, whose resources at best were scanty, and are, by this and other speculations, almost annihilated? Surely it is. And, let me add, is it not an invariable axiom with all authors on Government, "That all sacrifices of property made by individuals for the public benefit or accommodation, should or ought to be paid out of the public revenue, and that one should not bear more of the burden than another."--_Burlamaqui_, _b._ 8, _c._ 5, § 27, 28. Is it not, then, obvious to all, who will reflect on this subject, that compensation is due to these individuals, whose property has been wrested from them for Government purposes? The same author observes, in the 38th section of the same chapter: "That as no subject can assume any part of the sovereign power without the consent of the whole, neither can any sovereign authority deprive the subject of his right and property, nor substitute another sovereign over him without his consent." The public is in nothing more essentially interested than in the protection of every individual's private rights, as modelled by the municipal law in this and similar cases. The Legislature can, and frequently does interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by stripping the individual of his property in an arbitrary manner. No. But by giving him full and ample indemnification for the injury sustained; for there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions. Thus, the protection of a State, in every precedent to be found in books that treat of the fundamental laws of civil society, or in the resolutions and acts of the British Parliament, means restitution, indemnity, or compensation. _Grotius_, when treating of the right of the sovereign authority to give up or take the property of the subject, calls it "restitution, satisfaction;" _Burlamaqui_, "indemnity, and indemnifying the subject for the injury sustained;" and _Vattel_, "recompense out of the public money." It is farther observed, that cases of this kind operate, like property thrown into the sea to save the ship, by making an estimate of the loss, and causing an equal average on the property saved, which each owner is bound to pay. So that, from the fullest conviction, I am of opinion the citizens of North Carolina are entitled to the relief reported by the select committee, and that strict justice requires we should comply with it; for, as I have said, in nothing is the Government of the United States more concerned, in a superlative degree, than in doing strict justice to her citizens, as of the last importance in preserving the affections of the people to the Government. Vacancies in our departments, civil, judicial, or military, may be supplied as well, but to restore the confidence of a people borne down with oppression, exceeds comprehension. It is like attempting to return from the grave--is without precedent, and is vain labor indeed. At different epochs it has shook the foundations of monarchies, and caused tyrants to tremble and atone for their crimes with their lives; and, as I said at an early stage of the debate, if usurpers, tyrants, and despots have been compelled to do justice by this undeniable law of nature, shall the Government of the United States, founded on the pure principles of Democracy, be less just? Surely not. Have we received a power to exercise in wantonly oppressing those who gave it? God forbid! Therefore, let it ever be impressed on our minds, that justice exalteth a nation. The House, I hope, will pardon my detaining them, at a time when every moment is precious. But the duty I owe to my injured constituents forbids silence, and will, I hope, be a sufficient apology. I shall, therefore, submit to the judgment of the House, not doubting but justice will be done. Mr. NICHOLAS was satisfied that the purchasers of the lands had a claim either against the United States or the State of North Carolina. Much had been said about the Indian right; but the Indians never had been fit to occupy these lands. It could never have been the design of nature that these people should be termed the possessors of land which they were incapable to enjoy. He was, upon the whole, on the side of the claimants, though he enumerated some of the difficulties that would attend an attempt to please all parties. Mr. W. SMITH had found much difficulty in forming his opinion upon this question. He had at first been somewhat disposed against the claimants, but at last, after full deliberation, he was convinced of the justice of giving them redress. He requested the particular attention and candor of the House. The United States were, in this case, made a judge in their own cause, and therefore it became more their duty to examine every part of the subject with the more accuracy. Mr. S. then began a distinct detail of the circumstances in the present dispute. Previous to the year 1776, North Carolina was a British Colony, and the British Crown considered itself as entitled to bestow grants of territory. In that year, North Carolina became a sovereign State, and consequently she conceived herself as succeeding to the right of the British Crown, and as having a right to bestow grants in the same way as the Kings of Great Britain had done. This claim was asserted in her general Declaration of Rights, and it was incorporated into her constitution. When North Carolina entered into the Union, all the Legislative rights of the State were preserved, and, by a necessary inference, her title to the lands comprehended in her original charter. In 1783, the State opened an office to sell the absolute right of such lands as had not been disposed of. In 1789, North Carolina ceded the right of jurisdiction to the United States, but she reserved her own Legislative rights, and consequently her right to sell the lands within her own territory; and in disposing of the lands in question, the State did not intend merely to sell the right of pre-emption from the Indians, but the absolute title to the lands. Mr. S. read a part of the constitution of North Carolina, in order to explain what degree of legislation the State had conceded to the Federal Government, and what part she reserved to herself; and he was clearly of opinion, that the disposal of the lands had been reserved. In 1783 the State offered these lands for sale. In 1786, the Commissioners of the United States assigned a great part of them to the Indians. In 1788, the Legislature of North Carolina declared that they would support the purchasers. The grand question now is, did the State, by acceding to the confederation, give up her right of legislation? She gave up her right to make Indian treaties, but reserved that of legislation, because, as above observed, it formed a part of her constitution, which was understood to continue unviolated. These lands were bought with certificates, which it was alleged, on the other side, would purchase nothing else. If the certificates would purchase nothing else, it was proper at least that they should have been restored to their first owners, who might have subscribed them to a part of the public debt of the United States. They were certainly entitled either to their land or their certificates. These certificates, which were paid into the Treasury of North Carolina, were those of the United States. If the owners had only a pre-emption right, Mr. S. insisted that the certificates should be returned. Mr. SEDGWICK said, that this was quite a new fact to him, and if it was as stated, there was no necessity for Legislative interference at all. The State of North Carolina had only to come forward and subscribe them to the Treasury. Mr. W. SMITH explained, that when delivered into the Treasury of North Carolina, they had been cancelled. After this they were again ordered to be made current by the subscriptions of the officers of the State, and in that shape they were offered to the Commissioners of Loans, who refused to accept them. The exact amount of the certificates could still be ascertained, as well as the names of the persons to whom they belonged. They had been cancelled, but not destroyed. Mr. BOUDINOT imagined that Mr. SMITH had furnished a new and forcible argument against his own cause. This claim of North Carolina to sell the lands was wrong, and this doctrine had been the cause of all the disputes in which the Federal Government has been engaged. The Crown of Britain had never pretended to any right of this kind, nor ever thought it had a title to any lands till they were first purchased from the Indians. The question before the committee was, have the United States taken away any claim which the purchasers of these lands had? And the answer is, that the United States have not. The State of North Carolina only had a right to sell the privilege of pre-emption. This was the only right which the purchasers obtained, and this right they still possess. As to the certificates, they were not those of the United States, but those of North Carolina. They were not Continental certificates, and for that reason Continental officers would not accept them; but North Carolina has since brought these certificates into her account against the General Government. The commissioners, in 1786, had done a very great service to North Carolina, by settling a line of boundary, and putting an end to the Indian war. He thought that the best way would be for the claimants to apply to the Executive, and agree among themselves to extinguish, by an interference of that kind, the Indian right. This would be much better than for the House to involve itself in the purchase of an immense tract of land, at an expense of seven or eight hundred thousand dollars, (or how much more, Mr. B. could not tell,) when there was so much occasion for the money to pay the national debt. He again declared that he should think it the best way to obtain the good offices of the Executive in extinguishing the Indian right. The Six Nations possessed part of the territory of Pennsylvania. This State also may apply to the General Government for redress, if North Carolina were to get payment for these lands. The State of New York may do so, for the same reasons as North Carolina. This would be involving the Government in an endless labyrinth. He was as unwilling as any gentleman in the House to interfere with the rights of the Legislature of North Carolina. But he did not wish to see the House going blindfold into the business. The United States have too much land already. Mr. KITTERA.--The certificates must have been given in by North Carolina to the United States. She denied the right of the commissioners, in 1786, to make Indian treaties, but now that right is given up. He agreed with Mr. BOUDINOT as to his observations on Pennsylvania. Georgia also, he said, had about sixty millions of acres within her chartered limits. The business would never have an end, if the General Government was to interfere in all these cases. Mr. SCOTT.--Has not this Government a right to restrain every wild-goose excursion into the woods? If it has not, the Union must fall prostrate at the feet of every wild speculator. Pennsylvania, at a great expense, made preparations for an establishment at Presqu'Isle. The ground had been bought at a great expense from the United States. Yet for the sake of general peace, the settlement had been stopped. Mr. MCDOWELL denied that the two cases corresponded, for the lands at Presqu'Isle had not been given to the Six Nations. Mr. BOUDINOT differed from the last speaker. He did not think that any thing farther had been done against the interest of North Carolina than against that of Pennsylvania. Mr. BLOUNT denied that the Indians ever occupied the lands in question, or were fit to occupy them, in any proper sense of the word. To walk across a country, and to shoot in it, was different from an occupation. But, besides, the Creeks and Cherokees were not the only tribes who had hunted there. It had been said yesterday that these lands gave rise to speculation. Mr. B. wished that it had done so, for in that case the certificates would all have been paid by this time. There was no difficulty in funding Southern certificates, when once they got into the hands of Northern speculators. Mr. B. thought himself entitled to receive back from the United States the money which he had paid into the Treasury of North Carolina for these lands. Mr. MURRAY requested the favor of any gentleman to inform him, whether the lands in question were possessed and occupied, in the more civilized sense of the terms, by the white people? He believed they were not. Had they been in peaceable possession, living on, and cultivating the lands, that circumstance would form a very interesting motive in his mind in favor of the indemnity that was asked. But, in fact, they never were possessed of any right but that which North Carolina could give them--the pre-emption right; that right they now possessed as fully as they did at the time of the cession to the United States. [Mr. CARNES rose, and informed him, that many white people who had begun farms were driven off their lands, and reduced to great distress by the proceedings of the commissioners.] Mr. M. said, an argument struck him of some weight--that if the claim be gratified, the claimants will be in a better situation now than they would have been if the cession had not been made; for North Carolina could not have given them absolute possession but by force of arms. This she would not have a right to do, under this Confederation, nor under the constitution, as no one State can make war. But the claimants can ask nothing more of the United States than they could have had accomplished for them by the State of North Carolina. A new doctrine, resulting from the Revolution, must be admitted as a ground of reasoning, when Indian, unconquered territory, is before us. The Provinces had power, as individual bodies--which States, as such, have not--the right of making war, and gaining possession of Indian territory by conquest. So it was, that a province could, from its own separate resources, make war on Indians, and pay individually the expense. But when the great contest for independence came on, all the States were, in fact, principal confederated bodies, long before they signed the paper of confederation. The doctrine, which suited such a body of States, was, that whatever might be gained by the joint efforts and expense of all, should be the property of all, jointly; and he thought that every principle of sound justice warranted him in applying the doctrine, so far as to say, that whatever might be the chartered limits of each province, while dependent, yet the moment of the joint contest was that in which the true limits of a State were, as far as property in land went, confined to that boundary which was really located, occupied, and peaceably holden within the limits. To say that the State had a right more positive than the pre-emptive one, to lands actually occupied and defended by hostile tribes of Indians within the chartered limits, admits a principle, that, if put into action, tended necessarily to violate the great principle of the Confederation, and of the present constitution, which divests the individual States of the right to make war; as the State to make good any sales she might make within the hostile territory, would be obliged to make war on the tribes to dispossess them. The lands in question were in this situation. They were occupied by Indian tribes, and were never in possession of North Carolina. The gentleman from that State seems to doubt the occupancy of the tribes. Mr. M. believed we would violate principles of justice were we to borrow the principle of occupancy from books, and apply it to Indian society. The Indian tribes held certain tracts of land. As to the mode in which they thought it most rational to use the land, it was nothing against their right to say its exercise differed from our mode. He understood they made a hunting ground of the land in dispute. They had a right to use it as such, and their mode of use was no argument against their right. All that could be, or was proved to belong to North Carolina, was the colonial right to qualified sovereignty, called the pre-emption right. This was all she could grant, and this was all that the claimants could take from her. They had that now; and as he could not see the propriety of making their situation better than if the cession had not been made, so he could not agree to the resolution for giving them indemnity. Perhaps his ideas on the subject might be fashioned by local circumstances, belonging as he did to a State which had no share in those rich funds which the large frontier States possessed, he thought, very unjustly, in immense tracts of back lands. He felt it a duty to narrow all claims like the present as much as possible. Connecticut, Rhode Island, Jersey, Delaware, Maryland, were all in the same situation. They had no back lands, and were divested of the share they were justly entitled to in the back lands, which now bring immense funds of wealth into the land offices of those States which possess them. Mr. HEISTER wished to have that part of the law read which relates to the species of certificates referred to in the debate; this was accordingly done. Mr. H. said that he had not enough of evidence before him to give a vote. He therefore wished that the committee might rise. Mr. MACON said, that, according to Mr. BOUDINOT, it was the doctrine of North Carolina in 1783, that the State possessed aright to the unappropriated lands. If that was their doctrine then, nothing had since happened which could make it cease to be so now. The Crown of Britain had transferred the absolute property of lands, without inquiring for permission from the Indians. This evidence went strongly to prove that North Carolina had the same title. The case of Presqu'Isle did not apply, for Pennsylvania was raising troops to make that settlement, and no State can, by the constitution, raise troops of itself. He wished the committee not to rise till they had determined the question. Mr. CARNES had foreseen that the claim before the committee would be opposed upon various grounds: but he considered none of them as well founded. Grants were first made by North Carolina to individuals, of lands within her chartered boundary. The cession made to, and accepted by the United States, conditioned to secure the interest of individuals. A treaty was thereafter ordered to be held by the United States with the Indians, and by that treaty, lands formerly granted, were relinquished to them. The commissioners of North Carolina protested in form. The people turned out, had paid ten pounds the hundred acres, for their lands, and they were entitled to compensation from North Carolina, or from the United States. It had been said that North Carolina had no right but that of pre-emption. This Mr. C. denied. North Carolina had a right to all the lands within her boundary; and there was an express agreement reserving those lands to individuals. Why did the United States contract with the State, if she had no right? The Indians never could have been considered an independent nation, else there would be compensation _in imperio_. He mentioned the case of the Tallissee Country containing four million of acres. By a treaty made in 1785, between the State of Georgia and the Creeks, this land was ceded to Georgia. By a second treaty at New York, this very country was relinquished to the Indians, and of course the _bona fide_ right of the State wrested from them. If a decision could be had on this case before a judicial tribunal, it would not require a moment's hesitation to determine in favor of the State, and that the treaty was a nullity. It had been alleged that the right of pre-emption was the only right in possession of the States, that is, a title to purchase of the holders of the property, in exclusion of all other States, or individuals thereof or the particular State. Mr. C. contended that the fee-simple of all the soil within the chartered limits belonged to the State. As to the boundaries, the definitive treaty of peace settles them beyond contradiction. As to the proprietors of these lands being in no worse condition now than before the cession back to the Indians, the people were ploughing the lands, when driven from them, and will any gentleman say that this is not injuring people? As to the State of North Carolina having no particular claim to the land now beyond the Indian line, he would put a case within the chapter of possibilities. Suppose that all the Indians were driven over the Mississippi to-morrow, to whom would the lands which they now possess belong? The particular States to be sure, within whose range they lay. The gentlemen who advocate for morality, and who talk of treating the Indians with humanity, are the very men who have uniformly countenanced the raising of troops, and augmenting the force on our north-western frontiers. How can they reconcile their conduct? The Indians to the South are to be treated with humanity, and those to the North are to be butchered, that the United States may enjoy their property. Mr. BOUDINOT said, that the charter from Britain extended to the South Sea, but such a stretch of territory was not really claimed by Britain. He read several of the old laws of North Carolina, to prove that the Indian right of soil had always been acknowledged. Mr. BLOUNT had never thought of quoting this book, which he now did, to show that the British Government had authorized conquest. He did not know of one purchase made in Carolina. It was all conquest, and so were nine-tenths of all the lands held by the white people in America. Mr. MCDOWELL.--Those lands which are the subject of debate, and which a number of gentlemen have contended, that North Carolina had not a right to grant to her citizens, have been proved to be within the chartered limits as granted by Charles II., and which limits, sovereignty and jurisdiction were guaranteed to the State by the Articles of Confederation. After this, and within the year 1783, the Legislature passed a law for opening an office to receive entries of lands in the district of country now called the territory south of the Ohio, for the redemption of special and other certificates; and after a number of the surveys were made, and the grants issued, the Government of the United States ordered a treaty to be held with the Cherokee Indians at Holston, in the year 1785, and the commissioners agreed to give up a large quantity of lands before stated to the Indians; but, previous to articles being signed, Colonel Blount, who was the agent for North Carolina, entered his protest in behalf of the State, that some of the articles about to be entered into between the commissioners, on the part of the United States, and the Cherokee Indians, would infringe on the Legislative rights of the State of North Carolina, and the Legislature of the State also protested against the proceedings. I must here remark, that the then Government of the United States, agreeably to the Articles of Confederation, could not legally make use of the property of the State for any purpose without their consent. This continued to be the situation of this business, till after Congress requested a cession of those lands, with the sovereignty thereof, which now form the territory south of the Ohio, which was complied with under certain reservations, to continue claims, and the situations of the claimants as good as though this cession had not been made, which was a complete acknowledgment of the right of North Carolina, on the part of the United States, but in my opinion placed them in the same situation that the State would have been in, had the cession not taken place. Since the adoption of the present Government, another treaty was ordered to be held with the Indians, and the lands were given up to the Indians. Here the Executive right to make such treaty may be questioned, and I believe rightly too; for it would be an extraordinary power for them to make use of the property of individuals, without their consent, or making any compensation, and apply it to national purposes. Great difficulties would be involved were a remedy to be attempted in a judicial way against the Government. I do therefore think either that policy or interest, on the part of the United States, would point out a compliance, in part, with the report on the table, for it will not place the United States in any worse situation than they would have been in, had the lands not been entered. Had that been the case, those certificates would have been in the hands of individuals, a debt against the Government, but on their being subscribed now, to the amount actually paid on their relinquishing their claim, you would then have the land, which will be valuable at a period far distant. Some gentlemen appear to be alarmed at the sum; but if the principle is a just or fair one, the sum ought not to be an objection. I will here state further, to remove the alarms of those gentlemen, that the sum will fall far short of the statement made by Mr. Jefferson, as a great deduction is to be taken from that; but I can further assert, that a great number of the claimants would not relinquish their claim to said lands to subscribe; it would generally be such as are in indigent circumstances. And here I cannot help making some reply to the objections stated by several members, who have alleged that North Carolina had acted wrong in selling these lands before they had extinguished the Indian claim, and that the claimants were in no worse situation than they would have been had the cession not have taken place. I am not a little surprised to find, that gentlemen cannot see the distinction, for had the cession and treaty at Holston taken place, they were at liberty to settle the lands, and North Carolina was bound to protect them; but since the treaty had been made, the land is not only given up as stated, but it is made criminal to cross the boundary. Mr. DEXTER has stated that North Carolina has acted unjustly and wrong in making sale of those lands before she had extinguished the Indian claims. Here I shall repeat what I stated before in answer to what the gentleman has said: That the Indian claims to said lands were, in part, extinguished by Henderson's purchase, and part by conquest, and that a considerable part of the lands, that no nation of Indians could establish a claim to, had been claimed by different tribes as territory grounds, but had not been inhabited by any tribe within the memory, or any account that can be traced, and for as great a length of time the different tribes had been at war with each other about the right of hunting on said land. But so far as it relates to the right of North Carolina, I believe no member has a right to call it in question at this time. The gentleman's arguments would have been more applicable at the time the cession act was under consideration; and as to what the member said about the principle and precedent it would fix, I will only call the attention of that gentleman and the committee, to the conduct of the Government of the United States. Have they not pushed conquests into the Indian country north-west of the Ohio? Are they not continuing to do so, and is it not in contemplation to sell large quantities of lands in that country, that have never been purchased? If so, the precedent which the gentleman fears so much is already established. But here I beg leave to call the attention of the committee, in the most serious manner, to the number of citizens concerned, perhaps near twenty thousand. A great number of them are men who turned out in support of the American Independence, who fought, who bled, and furnished their property freely to the support of the cause. For this service they received certificates, which they wished to realize by entering said lands, and flattered themselves with sitting down on those lands, and in the latter part of life making themselves and families happy. Their hopes were soon blasted. After the act of last session, the Treaty of Holston took place, which gave their property to a savage and cruel enemy, to quiet the minds of an enemy who not only were opposed to us through the war with Britain, but ever since have been imbruing their hands in the blood of innocent women and children. What will be the feelings of the claimants, who have acted as I have stated, when they find that their request, which to be sure is a modest one, and which is only to be reimbursed for sums actually paid, is refused? Should this be the decision, I leave you to draw the conclusion. Should they proceed to settle those lands in opposition to the treaty, I should not be much surprised. But the report on your table goes too far, as to damage and a future preference, which I am not in favor of; therefore the resolutions in the latter part of the report I hope will be stricken out. On the same question, Mr. GILLESPIE made the subsequent remarks: he observed a disposition in the House to call the question; he then said that the situation in which he stood required that he should say something in support of the resolution under consideration, as it had been stated as a new and singular case, from which he took the liberty to dissent, as every writer on the law and usage of nations, held it as an invariable axiom, that all sacrifices of property made by individuals for public uses, ought to be paid out of the public purse. He stated the treaty between England, France, and Spain, in 1763, and the case of the loyalists in 1783, and as the hour of adjournment had arrived, concluded with a motion for the committee to rise and report progress. The question was then put, Shall the committee now rise and report progress? This was negatived. The resolutions in the report were successively put, and lost. The committee then rose; the Chairman reported progress, and the House adjourned. FRIDAY, January 30. The House proceeded to consider the report of the committee to whom was referred the Message from the PRESIDENT OF THE UNITED STATES, of the thirtieth of January, one thousand seven hundred and ninety-four, enclosing the copy of a letter from the Governor of North Carolina, covering a resolution of the Legislature of that State; as, also, the petitions of Thomas Person and others, proprietors of lands in the territory of the United States south of the river Ohio, and of the Trustees of the University of North Carolina, to which the Committee of the whole House had, yesterday, reported their disagreement: Whereupon, The first resolution reported by the committee, being again read, in the words following, to wit: "_Resolved_, That it shall be lawful for the Executive of the State of North Carolina to subscribe, by way of loan to the United States, the amount of all such certificates as have been deposited in payment for any lands, (reserved by the act of cession aforesaid,) in payment for any lands which may have been relinquished to the Indians by the treaty aforesaid, in trust for the persons by whom they were so deposited, according to their respective rights and interests:" The question was taken, that the House do agree with the Committee of the whole House in their disagreement to the said first resolution, and it was resolved in the affirmative. The second resolution reported by the committee, being again read, in the words following, to wit: "_Resolved_, That the United States ought to reimburse the said persons the money which they have expended in having entries and surveys made, and in obtaining grants, and any other incidental charges which they have necessarily incurred, with interest; and that they should moreover make a reasonable allowance for the loss and damage which the petitioners have sustained, by having possession of the said land withheld from them:" The question was taken, that the House do agree with the Committee of the whole House in their disagreement to the said second resolution, and resolved in the affirmative. The third resolution reported by the committee, being again read, in the words following, to wit: "And whereas, the grants to the aforesaid lands, made by virtue of an act of the Legislature of North Carolina, are valid to all intents and purposes, as coming fully within the purview of a condition contained in the act of session from the said State to the United States: therefore, "_Resolved_, That, whenever the United States shall think proper to extinguish the Indian claim to the said lands, by purchase or otherwise, it will be just and reasonable that the several persons who have obtained grants or made surveys or entries, should have such rights confirmed and established, and their titles perfected, in preference to any other persons, on repaying to the Treasury of the United States, the amount of what they may now receive, as a compensation for their disbursements and losses, in case such persons shall think proper to make such repayment within a certain time, to be limited by Congress for that purpose:" The question was taken that the House do agree with the Committee of the whole House, in their disagreement to the said third resolution, and resolved in the affirmative. A motion was then made, and the question being put, that the House do agree to the following resolution: "_Resolved_, That such persons as have entered lands agreeably to the laws of North Carolina, in the territory ceded by that State to the United States, and on the Indian side of the line established by the Treaty of Holston, ought to be reimbursed by the United States the amount of the purchase-money actually paid for the same, and the necessary expense of locating and surveying, where the survey has been made; such persons first relinquishing their right thereto, to the United States:" It passed in the negative--yeas 14, nays 56, as follows: YEAS.--Theodorus Bailey, Thomas Blount, William B. Grove, George Hancock, Matthew Locke, Nathaniel Macon, Joseph McDowell, Alexander Mebane, John Page, Robert Rutherford, William Smith, Benjamin Wiliams, Richard Winn, and Joseph Winston. NAYS.--Fisher Ames, John Beatty, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Lambert Cadwalader, Thomas Claiborne, David Cobb, Peleg Coffin, Joshua Coit, Jonathan Dayton, Henry Dearborn, George Dent, Gabriel Duvall, Benjamin Edwards, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, Andrew Gregg, Thomas Hartley, John Heath, James Hillhouse, William Hindman, Samuel Holten, John Hunter, William Irvine, Aaron Kitchell; Amasa Learned, William Lyman, James Madison, William Montgomery, Andrew Moore, Peter Muhlenberg, William Vans Murray, Anthony New, John Nicholas, Nathaniel Niles, Alexander D. Orr, Josiah Parker, Andrew Pickens, Francis Preston, Thomas Scott, John S. Sherburne, Jeremiah Smith, Samuel Smith, Zephaniah Swift, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Artemas Ward, and Paine Wingate. Another motion was then made and seconded, that the House do come to the following resolution: "RESOLVED, That the President of the United States be requested to cause a treaty to be entered into with any Indian tribes who may claim, hold, possess, or be entitled, to any lands within the territory ceded by the State of North Carolina to the United States; and to endeavor to obtain, by such treaty, an extinguishment of the Indian claims to all lands, the pre-emptive right to which has been sold by the said State, in pursuance of the act of one thousand seven hundred and eighty-three, opening an office for the sale of the said lands." _Ordered_, That the said motion be committed to Mr. WILLIAM SMITH, Mr. DAYTON, Mr. SWIFT, Mr. MCDOWELL, and Mr. PAGE. MONDAY, February 9. ROBERT GOODLOE HARPER, returned to serve in this House as a member for the State of South Carolina, in the room of ALEXANDER GILLON, deceased, appeared, produced his credentials, was qualified, and took his seat in the House. FRIDAY, February 13. _Heirs of Count de Grasse._ A memorial of Amelie, Adelaide, Melanie, and Silvie de Grasse, four daughters of the late Count de Grasse, now residing at Salem in the State of Massachusetts, was presented to the House and read, praying a loan of money for their present subsistence; the effects which they brought from France being exhausted, and having no other means of support, but in property in the Island of St. Domingo, from which, under present circumstances, no supplies can be drawn. _Ordered_, That the said memorial be referred to Mr. AMES, Mr. MADISON, and Mr. GILMAN, with instruction to examine the matter thereof, and report the same, with their opinion thereupon, to the House. WEDNESDAY, February 18. _Count de Grasses Heirs._ The House then went into a committee on a memorial from the four daughters of the late Admiral Count de Grasse. It was read with the report from a select committee, which proposed to give each of these ladies, who are now residing in Boston, and in indigent circumstances, a thousand dollars, in consideration of the important services rendered by their father to the United States. To this proposal the committee agreed, and the Chairman reported the resolution. The House then took up the report. Mr. MACON objected that though the claims of the petitioners were strong, yet they were not more so than those of multitudes of others. On the very day when we have come to a resolution to receive no more petitions from our fellow-citizens, we are going to give so large a sum at once to foreigners. He was aware that the Count de Grasse had done eminent services to America, and he felt them as much as any person, but he still saw no reason for preferring these petitioners, when there were likely a hundred of the officers of De Grasse, or of Rochambeau's army, that were in this country, and in want. Mr. DEXTER said, that if ever there was a case where it would be proper to act first, and thereafter try to find reasons for what had been done, this was such a case. The report was, on a division, agreed to by a great majority--sixty-one gentlemen rising in the affirmative. The resolution is in the following words: _Resolved_, That, in consideration of the extraordinary services rendered the United States by the late Count de Grasse in the year one thousand seven hundred and eighty-one, on the urgent request of the Commander-in-chief of the American forces, beyond the term limited for his co-operation with the troops of the United States, there be allowed and paid to Amelie, Adelaide, Melanie, and Silvie de Grasse, daughters of the late Count de Grasse, respectively the sum of one thousand dollars each. _Ordered_, That a bill or bills be brought in, pursuant to the said resolution, and that Mr. AMES, Mr. MADISON, and Mr. GILMAN, do prepare and bring in the same. SATURDAY, February 21. An engrossed bill authorizing the payment of four thousand dollars for the use of the daughters of the late Count de Grasse, was read the third time and passed. TUESDAY, February 24. _Case of Thomas Person and others._ It was moved that the House should go into consideration of the report of the select committee to whom had been referred a resolution of the House in relation to the back lands of North Carolina. The following is the resolution of the select committee: "_Resolved_, That in case the President of the United States shall think proper to enter into a treaty or treaties with all or any of the Indian tribes claiming lands within the territory south of the river Ohio, for the extinguishment of their claims to all or any of the said lands, the sum of ---- dollars be, and the same is hereby, appropriated to the purpose of defraying the expenses of any such treaty or treaties." Mr. GOODHUE did not see that the United States had any concern to interfere in such a purchase: it was private property. Mr. DAYTON explained that the petition of Thomas Person and others comprehended only two millions of acres. The resolution contemplated twenty millions. It will, when completed, enable the United States to protect the Choctaws and Chickasaws from the Creeks and Cherokees, if the latter should happen to attack them; and that they will attack the Chickasaws is not improbable, from assistance which the latter have given to the white people. Besides, the frontier will be capable of defence, at a much cheaper rate, in this way than at present it can be. It is now an irregular line. A peculiar circumstance, besides, will make the lands easy to be purchased. No Indian tribes reside on them. When the gentleman from Massachusetts considers these things, he will not object, since the United States will gain eighteen millions of acres by the transaction. Mr. GOODHUE admitted the reasoning as to the eighteen millions, but still scrupled as to the rest. Mr. SWIFT recommended that the Indian claim should in the mean time be extinguished. Mr. MCDOWELL, in reply to Mr. GOODHUE, said that if the gentleman had attended to the reasonings formerly used on this subject, and which had occupied considerable time of the House during the present session, he could have been at no loss for understanding the propriety of this purchase being made by the United States. A committee were named to bring in a bill, in terms of the resolution recommended by the select committee. WEDNESDAY, February 25. _Indian Lands in Georgia._ The House again resolved itself into a Committee of the whole House on the report of the committee to whom was referred so much of the message from the PRESIDENT OF THE UNITED STATES, of the seventeenth instant, as relates to the disposition of Indian lands by the Legislature of the State of Georgia. Mr. AMES said, that during the time when the National Debt bill was under discussion, he had attempted to get something introduced in favor of the new emission money creditors, but gentlemen always rose _en masse_ against any proposal that would tend to obstruct the progress of the bill. He now again urged that this affair might be taken into consideration. He knew he should be told of a standing rule of the House that the unfinished business must first be taken up. These creditors had waited for four years without redress, and the rules of the House ought to give way to common feeling and common sense. He therefore moved that the rule in question should be suspended. The motion was negatived, and the House then went into a committee upon the second and remaining resolutions in the report of the select committee on the Message of the PRESIDENT. The following is a copy of the third and fourth resolutions in this report: "_Resolved_, That the President of the United States be authorized, whenever claims under prior contracts may cease to exist, to obtain a cession of the State of Georgia, of their claim to the whole or any part of the land within the present Indian boundaries; and that ---- dollars ought to be appropriated to enable him to effect the same. "_Resolved_, That all persons who shall be assembled, or embodied in arms, on any lands belonging to Indians, out of the ordinary jurisdiction of any State, or of the territory south of the river Ohio, for the purpose of warring against the Indians, or committing depredations upon any Indian town, or persons, or property, shall thereby become liable and subject to the rules and articles of war, which are, or shall be established for the government of the troops of the United States." After some discussion, the committee rose; the Chairman reported progress, and asked leave to sit again. This was negatived--yeas 33, nays 35. The House then took up the resolutions. Various amendments were proposed; and the last resolution, in particular, was objected to, as subjecting people to martial law. Mr. WADSWORTH said, that from a trial by jury he had no hopes. There never had been one instance of a white man condemned and hanged by white men, on the frontier, for the murder of an Indian, since the first landing in America. There might be such a thing for the murder of an Indian, when they lived among the whites. That there ever had been such a thing he did not know. He had been told by judges, upon the frontier, that it was no matter what evidence of a murder of an Indian was brought. No jury would bring the criminal in guilty. It was but very lately that a cool and unprovoked murder had been committed on the borders of this State upon an Indian. The evidence was clear. Nobody pretended to doubt it. The judge gave an earnest charge to the jury; but all to no purpose; they found "not guilty." Mr. SEDGWICK proposed an amendment to the last resolution, as follows: "_Resolved_, That all persons who shall be assembled, or embodied in arms, on any lands belonging to Indians, out of the ordinary jurisdiction of any State, or of the territory south of the river Ohio, for the purpose of warring against the Indians, or of committing depredations against any Indian town, or persons, or property, shall thereby become liable and subject to be taken and confined by the military force of the United States, in such manner as to be made amenable to, and triable by law." _Ordered_, That the said motion be committed to Mr. SEDGWICK, Mr. MADISON, and Mr. HILLHOUSE. FRIDAY, February 27. _Indian Lands in Georgia._ The House then went into a Committee of the Whole, Mr. SHERBURNE in the chair, on the report of the select committee to whom had been referred the motion of the 25th instant, respecting such persons as shall be assembled, or embodied in arms, on any lands belonging to Indians, out of the ordinary jurisdiction of any State, or of the territory of the United States south of the river Ohio. The resolutions are as follow: "_Resolved_, That all persons who, unauthorized by law, may be found in arms on any lands westward of the lines established by treaties with the Indian tribes, shall, on conviction thereof, forfeit a sum not exceeding ---- dollars, and be imprisoned not exceeding ---- months. "_Resolved_, That it shall be lawful for the military force of the United States to apprehend every person or persons found in arms, as aforesaid, and him or them to convey to the civil authority of the United States, within some of the States, who shall, by such authority, be secured, to be tried in manner hereafter expressed. "_Resolved_, That every person apprehended, as aforesaid, shall be tried in manner and form as is expressed in and by the act, entitled, 'An act to regulate trade and intercourse with the Indian tribes.'" Several amendments were proposed and agreed to. At last Mr. VENABLE proposed one, which was, in substance, that persons should not be liable to the operation of the law who were in pursuit of Indians that had committed actual hostilities on the frontier. Mr. SEDGWICK paid many compliments to Mr. VENABLE, as a sound lawyer, who certainly knew that, by the inherent rights of nature, every man was to pursue and punish those who had robbed him. This was implied in the bill, and was a part of the law of nature, so that there could be no use for its insertion. Mr. VENABLE, in reply, declared that he was not so sound a lawyer as the gentleman supposed him to be. He was not so sound a lawyer as to discover that there was any such implication in the bill as the gentleman stated. Neither was he a sound enough lawyer to see, that, if his amendment was really implied in the bill, there could be any harm in having it expressed. At present he could discover no such implication. On the contrary, he saw very plainly, that, by the resolution as it now stood, a man whose family had been murdered or carried off by the savages, might, while pursuing them, be stopped and sent to jail. Mr. V., from the admission of Mr. SEDGWICK himself, insisted on the propriety of adopting his amendment. Mr. HILLHOUSE objected to the permission of armed individuals crossing the line, upon any pretence whatever. What use was there for expending millions every year in defence of the frontier people, if they were to be at liberty to cross the Indian line as often as they pleased, and to do what was to all intents and purposes carrying on war? If they will fight, let us recall our forces and leave them to fight for themselves. Are they, for the stealing of a horse, or some such thing, to cross the line in armed bodies, and act just as they please? Mr. H. utterly denied the doctrine admitted by Mr. SEDGWICK, that a man was authorized to chastise by his own hand those who had injured him. Was he to be both judge and executioner in his own case? No such thing. Mr. GREENUP said, that, in coming to Congress every year, he was obliged to pass over territories belonging to Indians, and he always thought it necessary to carry a gun. He did not see, by the resolution as it stood, why the military officers of the United States might not stop him, as well as other people. Mr. MOORE objected to the clause altogether. It is usual for people on the frontiers to send out parties over the line to watch the Indians, and when they are coming to give notice, that the country may be prepared for their reception. Now, these people may be seized by your officers. Mr. FINDLAY imagined it would be the best way to declare that there shall be no frontier. It had been said by Mr. HILLHOUSE that the United States might withdraw their forces, and leave the frontier settlers to defend themselves. Did he imagine that, as it is, they are not kept in a perpetual state of alarm, of exertion, and of danger? There has not been a harvest for many years past where the people have not been called off from their labors, and, to their very great loss, to protect the frontier. This resolution not to allow pursuit, would be inviting the Indians with a witness. Mr. SEDGWICK said, that this amendment, in reality, destroyed all that had been done or intended. No military officer, after such an amendment, will run the risk of taking a man up. The prisoner has only to say, "I am in pursuit of Indians," and then he must be set at liberty; for, in the wilderness, no evidence can be had to contradict him. The amendment, therefore, was a _coup de grace_ to the whole affair. Mr. S. said he was personally extremely hurt at the constant complaints of the inefficiency of the defence afforded on the frontier, which cost annually so much to Government. Mr. BLOUNT thought that the best way would be, to let it be known that the whites were authorized to pursue the Indians into their own country, and then they would stand more in awe. He mentioned a circumstance that happened within memory, to prove how much the Indians feared a serious attack, and how well they remembered a serious chastisement. Mr. B. stated that some Indians had made an incursion, and were stealing cattle belonging to the army, at a block-house. One of them was most deservedly shot, and the soldier had his pay stopped. Mr. HILLHOUSE said, the more that he thought of this amendment, the more he saw its mischievous consequences. It went to invert all the laws that had been made for the protection of the Indians; and, instead of being a bill to protect them from the whites, the resolutions would produce a bill to protect the whites from them. Mr. SMILIE objected to Mr. SEDGWICK's having threatened that the army of the United States should be withdrawn from the frontiers. [He had made some other advances against that gentleman, to which Mr. SEDGWICK answered not loud enough to be heard; but at this last, he arose, and said that he would not sit still to hear himself thus quoted for affirmations of which he had never uttered a single word.] Mr. FITZSIMONS really hoped that the House would not agree to this amendment. It would totally defeat all the effects proposed by the bill. It had been said, that if a man had his family murdered, and he was in pursuit of the murderers, he might be stopped by a military officer, and sent to jail. The answer was, that if the officer refused to join him in the pursuit, he would lose his commission. He should be sorry if those resolutions, which had cost so much time and labor to the House, were thus to be thrown away. The amendment was, on a division, carried--yeas 36, nays 28. The committee then rose. SATURDAY, February 28. _Indian Trading Houses._ It was moved that the House should resolve itself into a committee on the bill for establishing trading houses for the purpose of supplying the Indian nations within the territory of the United States. This was done accordingly, Mr. SHERBURNE in the chair. Mr. GILES then moved to strike out the first section. Mr. GOODHUE wished to move that the committee rise; to which Mr. GILES agreed. Mr. GOODHUE then said, that his reason for this motion was, the inattention of members to the business before them. To attempt going through the bill at present was a perfect farce. He was satisfied that the bill would never go through this session. He did not, for his own part, yet know whether it was proper or not. Mr. PARKER said, that the bill had been long enough before the House for the gentleman from Massachusetts to have made himself acquainted with its contents and its merits. He vindicated the principle of the bill, as tending to conciliate the affections of a distressed and unhappy people, and as it might likewise prevent the expenses of a war with them. France, Britain, and Spain, had adopted this policy, and found the good effects of it. He considered the bill as of the utmost consequence, and, thinking so, he should use his utmost influence to get it passed. The expense proposed was not great, as the affair was only experimental. Mr. MONTGOMERY was of the same opinion with the gentleman who spoke last. He thought that the Indians had common sense enough not to quit allies who supplied them with articles which they wanted, till we also made some effectual establishment of that kind. The member went on the same ground with the gentleman who spoke last. Mr. BOUDINOT thought that the reason given by Mr. GOODHUE for moving that the committee should rise, viz: that gentlemen would not attend to their duty, was the worst imaginable. What did the House meet for at all? It was the duty of the Chair to compel them to mind their business. Mr. B. then referred to something which had been said by Mr. SWIFT, who had been up just before Mr. BOUDINOT. Mr. B. in reply to this gentleman, said, that he would not wish to press the bill this session if members did not think it proper. He was willing, if agreeable, to refer the matter for one year to the PRESIDENT. But there never would nor could be a complete peace till something of this kind was done. The PRESIDENT himself had told us as much. Mr. GILES said, that the bill could not be got through this session. He was willing to take the question either in the first way that he had moved it, or in any other. This was a most improper time of the session to bring it in. Mr. MURRAY hoped that the committee would seriously attend to the first clause in the bill, and would not rise. He felt the shortness of the time, but he was willing to devote to-morrow (Sunday) to this subject, and he trusted that the importance of it would give the employment a solemnity not inconsistent with the day. Without a bill to establish a well-guarded intercourse with the Indians, the frontier policy will be unsystematic and despicable. To complete the system, it appeared to him that three great objects are to be embraced: 1st. Force to protect the frontier from Indian invasion--for this the Military Establishment is made. 2d. A regulation, by law, that shall restrain the frontier people from predatory invasion into the Indian country, carrying law and settlement hand in hand. 3d. The establishment of trading houses under the influence of the two first parts of the system, for the purpose of conciliating the Indians by supplying their wants, and detaching their habits of trade and their affections from a foreign nation. With these three points embraced in one system, he had no doubt but their co-operation would produce the great object, peace on the frontier. Without the last, the other parts of the system would be totally inefficient. Mr. HILLHOUSE said, that the House ought to begin at the right end of the subject, by reversing the vote which the committee passed yesterday, authorizing the frontier people to pass the line in pursuit of the Indians as often as they pleased. If this was allowed, it would be impossible ever to keep peace. On a division, shall the committee now rise? it was determined in the affirmative--yeas 35, nays 31. The question was then put by the SPEAKER, Shall the committee have leave to sit again? It passed in the affirmative--yeas 34, nays 33. But it was presently remarked, that some gentlemen had risen both in the yeas and nays; others had been without the bar. The question was, therefore, taken over again, and determined in the negative--yeas 36, nays 41. The bill is, therefore, thrown out. _Indian Lands in Georgia._ The House proceeded to consider the resolution and amendments thereto, reported yesterday from the Committee of the whole House on the report of the committee to whom was referred a motion of the 25th instant, respecting such persons as shall be assembled or embodied in arms on any lands belonging to Indians out of the ordinary jurisdiction of any State, or of the territory of the United States south of the river Ohio: Whereupon, The first resolution being read, in the words following, to wit: "_Resolved_, That all persons who, unauthorized by law, and with hostile intent, may be found in arms on any lands allotted or secured to the Indians by treaties between the United States and any Indian tribes, shall, on conviction thereof, forfeit a sum not exceeding ---- dollars, and be imprisoned not exceeding ---- months." And the amendment thereto, reported by the Committee of the whole House, to add to the end thereof the words, "unless it shall be in immediate pursuit of Indians, who shall have recently committed hostilities." When the question was about to be taken on it, Mr. VENABLE rose and pointed out the difference of opinion between two gentlemen who were both opposed to his amendment. One of them (Mr. SEDGWICK) had maintained that, when individual Indians, unauthorized by the rest of their tribe, crossed the line and committed depredations, a settler was, by the law of nations, authorized to pursue them across the line and to retaliate, and that this was implied in the bill. Mr. HILLHOUSE had materially differed from him, and agreed with Mr. VENABLE, in supposing that the person so pursuing across the line was punishable by the resolution as it stood, without the amendment. He then reminded the House that this frontier line was, perhaps, fifteen hundred miles long. The Indians may come over any part of it, while the citizens of the United States are not to be allowed to cross it one mile in pursuit. Even a man in pursuit of savages who may have carried off his wife and children, may be stopped. The amendment he regarded as essential. Military officers may judge on the spot whether such persons whom they meet beyond the line, in pursuit of Indians, are within the sense of the act or not. Mr. AMES denied that the resolution as it first stood took away the right of a man to pursue the Indians, in order to recover his wife and children. But the amendment of Mr. VENABLE went to legalize all those acts of violence and revenge, that, for a century past, have deluged the frontier with blood. Mr. LYMAN vindicated the inhabitants of the frontier. If the Indians are so unfortunate as to be the dupes of other nations, (viz: the Spaniards and British,) that is not our fault. The frontier people, from time to time, have done every thing in their power to keep them in peace. Mr. HILLHOUSE opposed the amendment. Mr. MCDOWELL said, that weekly and daily murders were committed by the Creeks in the district of Mero and in the South-western Territory. Do the United States avenge these murders? No. Do they demand back the property carried off? No. Instead of any satisfaction to the people, their characters are abused on this floor. The frontier people know that their happiness consists in peace, and, therefore, cultivate it as much as they can. He took a general view of the subject, and explained the insignificance of the posts as at present held by the troops of the United States for any purpose of protection. He noticed the inveterate hatred of the Indians against the whites, and their innate thirst of blood. Mr. MOORE went on the same grounds. Mr. GILES did not like the harsh style assumed by some gentlemen in speaking of the frontier settlers. A hundred years hence these people would preponderate over this part of the Continent. He represented an Atlantic part of the Union, but, at the same time, he would carefully avoid any thing that might offend the Western people. The first settlers in this country were, when they first landed, frontier settlers. For his own part, he believed that the war between the whites and the Indians would be eternal. He said, that, from some intelligence received this day, there was reason to believe that a war with the Creeks might soon be expected. Mr. WADSWORTH.--Gentlemen have a great disposition to husband our little time, and I need not mention their manner of doing it. He said that he was willing to grant protection to the frontiers, but not to give leave, as by the amendment proposed, for an eternal war. He thought it calculated to drive the gentlemen on each side of this question into such opposite extremes, that they would never meet again upon the subject. He was willing to grant any degree of protection, but nothing for conquest. He said that the ancestors of the people now in the Atlantic part of the country were once frontier people, and he believed them to have been neither worse nor better than the present settlers, who are in the same situation. We are told of murders and robberies committed by the Indians; but the accounts of some of the officers employed by Government vary a little from this, and give room to suspect that there may be some error on both sides. He did not believe that this amendment would pass; but, if it should do so, it would widen the difference of opinion in the House. Mr. PAGE was for the amendment. Mr. CARNES could not conceive the reason why all regulations made in this House were for Indians only, as if the whites were constantly the aggressors. He asked if the Creeks performed a single tittle of the treaty of New York, about which there had been so much parade? No. The only design of Indians in making a peace is to get presents, for these they always get. As soon as these are spent they commit a new set of murders, in the hopes of another treaty. Thus they always have gone on, and always will go on, from murders to treaties, and from treaties to murders. Mr. C. complained that a gentleman from Maryland (Mr. MURRAY) had some days ago called the frontier people semi-savages. He hoped that such an expression would never again be used in that House. As to the treaty of New York, he might be told that the Creeks restored a number of women and children. He knew that; but he also knew that, before they did so, the relations of those people were obliged to put their hands in their pockets and pay large sums for their redemption, as the prisoners would not have been delivered up in consequence of the treaty of New York. This bill, without the amendment of Mr. VENABLE, would be an encouragement to the savages to come over the line and murder with impunity. Mr. SCOTT was entirely in favor of the amendment. If the resolution passes without the amendment houses will soon be smoking and blood running. He believed that the subject in question was beyond the reach of human wisdom to regulate. He thought that striking out the amendment would only encourage the Indians to come in a body across the line. This they were never afraid of doing. The only thing which they feared was a pursuit, and this was to be effectually prevented by striking out the amendment. Was there ever such a thing heard of before as that, when the savages have carried off a man's wife and children, he must not be at liberty to pursue them? It would be the most frightful thing imaginable for the House to pass a law declaring such a pursuit criminal. Mr. S. could figure a case where the farm of a settler might come close to the Indian line, and the Indian might stand on the other side of the line and shoot him, and his neighbors would not be at liberty to pursue the murderer. Mr. S. said, that in that part of the country where he resided (Washington county) nothing of this kind was to be feared, as the line was at a sufficient distance from the cultivated lands, but there were other places on the frontier of the United States where this might happen. He said that no Christian nation had a right to ask better terms than this amendment offered to the savages. Stay upon your own side of the line and you are safe, but, if you cross over to us, we shall cross over in pursuit of you. This was fair play. If the resolution passed without the amendment, Mr. S. said that the Indians would immediately encamp close on their side of the line, and lie in watch there for whole months together, till they found a safe opportunity of crossing. Mr. MURRAY said, he would make a remark or two on the criticism of the gentleman from Georgia, who had felt affected by an expression of his a few days since, when he called some of the people of the frontier "semi-savages." He did so, and he felt the expression not inapplicable. He confined the import of this expression exclusively to those upon the frontier who lead an unstationary life--who press forward into the deeper wilderness, by the new waves of advancing population, and live the life of savages without their virtues. He begged leave to call the gentleman's attention to a declaration of his own, last session, to justify this expression, which he used more to designate a peculiar than a general character of the people in the region to which he applied it. The gentleman said, he did not value the lives of one hundred Indians as much as the life of one white man, or words to that extent. [This was in a debate just before the close of the last session. The words of Mr. CARNES were, "I would not give the life of one white man for that of fifty Indians."] Mr. MURRAY said, he had two points always in his view when the frontier was a subject in that House--protection to the frontier against the hostility of the Indians, and restraint upon the whites to prevent the occasions of war against the savages. He had given every testimony to the first by supporting every measure for their defence; that he represented a district perfectly beyond the danger of the Indians, was proof that he was actuated in his votes for appropriation and force by no other motive than that which belonged to every man there who supported the great principle of Government, that the whole must protect the parts. He wished to see such a system established, combining these two points, as would give complete protection against the Indians, and yet restrain the whites from violating peace. He wished to see the day when the arms of the Government might, without a crime, strike a whole tribe, if that tribe or its members waged war on the frontiers. But, to do this, it was necessary to place our relative situation so as that justice might be secured. He wished to adopt a regulation like the present, to prevent our fellow-citizens from the gratification of private revenge, the source from whence so much blood is shed. In order to justify exemplary punishment on Indian tribes, you must first be in a situation to restrain the whites from doing injustice to them. You must do what all nations have done, when, from the general or local state of civilization, private war disturbs public tranquillity--you must restrain the right of private war, by placing the power of vengeance out of the reach of individuals, and in the hands of Government. Nor did this idea go at all to restrain that inalienable right of resistance against imminent danger, which was sanctioned by the law of nature. The picture drawn by the gentleman from Pennsylvania, (Mr. SCOTT,) with his accustomed ability and force, was certainly an interesting one--were an encampment of Indians to be heard in the woods near a settlement, after any evidence of hostility, he did not doubt but the neighbors would be perfectly justifiable in changing the scene of blood from the cottage to the camp--if the amendment which actually arms all the passions of revenge with the rights of law, be rejected, you will attain one of the great objects of frontier policy--the ability to restrain the right of private war, from which public war arises as a consequence. The Government will, when this ability to restrain is complete, become responsible for the protection of the whites against the savages. Until that is accomplished, he did not believe Government could, either in justice or policy, expend treasure or use force, when uncertain of the justice of the cause. He therefore hoped that the amendment would be rejected. Mr. FINDLAY was for the amendment, and mentioned several examples to prove the cruelty and perfidy of the Indians. The amendment itself was in these words: "Unless it shall be in immediate pursuit of the Indians who have recently committed hostilities." Mr. MADISON did not think the question explicit; he therefore proposed another, which was to prevent the pursuers from coming within a certain number of miles of an Indian town. He was extremely doubtful whether his amendment or any other would effectually answer the end proposed. He was convinced that no law of any kind would be able to hinder people from crossing the line in pursuit of Indians, who might have carried off their families. Mr. HARPER said, that however little time the House had to spare, and however long the discussion might have been, he could not help trespassing on their patience for a short time to deliver his sentiments, as he thought himself tolerably acquainted with the subject. He expressly denied that the Indians ever committed any murder without previous provocation. The process is shortly this: An Indian crosses the line and steals a horse. And as long as Indians exist they will always steal horses. The man to whom the horse belonged collects as many of his neighbors as he thinks sufficient, pursues the Indian, and, not contented with recovering his horse, he kills the thief. The Indians, who have no such sacred ideas of property, immediately come over the line, and in revenge murder a number of innocent people. Indian murders are not unprovoked. They are not of that stamp. Mr. H. considered the amendment of Mr. VENABLE as a source of endless confusion. Any man, if it passed, might cross the Indian line as often as he thought proper, and say that he was in pursuit of Indians with prisoners. I undertake, (said he,) if you will give me a hundred dollars, to go to the frontier and get a witness who will come into a Court of Justice and swear that on such a day ten Indians came over the line in arms. Mr. H. said he was personally acquainted with the frontiers. He had a high respect for the inhabitants, there were many very worthy people among them; but likewise many others of a very different kind. This amendment will set open a door to all sorts of fraud and mischief. Mr. H. honored the sentiments of patriotism that gave rise to it, but he could not possibly agree to the propriety of its insertion. Mr. WHITE, the member from the South-western Territory, said, that he had to complain of the slaughter of near four hundred citizens under the auspices of your Government. He felt himself much affected, and as to the doctrine of Indian killing, only in retaliation, he denied it altogether. The love of blood was hereditary in them. When the gentleman says that with a hundred dollars in his pocket, he can find ten men on the frontiers--[Mr. HARPER explained, that he only said he could find a witness.] Well, (said Mr. W.) if the gentleman did not mean a reflection on the frontiers, he meant nothing at all. I know not how well the gentleman may be practised in the arts of subornation, but I myself know of no such man. [Mr. HARPER.--I expected the gentleman would confine himself to a decent answer.] Mr. W. proceeded to observe that no man acquainted with the frontiers would have made any such assertion as the gentleman had done. He was likewise extremely surprised at the gentleman from Maryland, for having persisted in affirming that many of the frontier people were semi-savages. The yeas and nays were now taken on the amendment, which was lost by a majority of 7--yeas 39, nays 46, as follows: YEAS.--James Armstrong, Theodorus Bailey, Abraham Baldwin, Thomas Blount, Thomas P. Carnes, Gabriel Christie, Thomas Claiborne, William J. Dawson, George Dent, Samuel Dexter, Gabriel Duvall, Benjamin Edwards, William Findlay, Christopher Greenup, William B. Grove, George Hancock, Carter B. Harrison, John Heath, William Irvine, Matthew Locke, William Lyman, Nathaniel Macon, Joseph Mcdowell, Alexander Mebane, William Montgomery, Andrew Moore, Peter Muhlenberg, Joseph Neville, Anthony New, Alexander D. Orr, John Page, Thomas Scott, John Smilie, Thomas Sprigg, Thos. Tredwell, Philip Van Cortlandt, Abraham Venable, Francis Walker, Richard Winn, and Joseph Winston. NAYS.--Fisher Ames, John Beatty, Elias Boudinot, Shearjashub Bourne, Benjamin Bourne, Lambert Cadwalader, David Cobb, Peleg Coffin, Joshua Coit, Henry Dearborn, Thomas Fitzsimons, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, James Gordon, Robert Goodloe Harper, James Hillhouse, William Hindman, Samuel Holten, John Hunter, Aaron Kitchell, John Wilkes Kittera, Amasa Learned, James Madison, Francis Malbone, William Vans Murray, Nathaniel Niles, Andrew Pickens, Theodore Sedgwick, John S. Sherburne, Jeremiah Smith, Israel Smith, Wm. Smith, Zephaniah Swift, George Thatcher, Uriah Tracy, Jonathan Trumbull, John E. Van Allen, Peter Van Gaasbeck, Peleg Wadsworth, Jeremiah Wadsworth, John Watts, Benjamin Williams, and Paine Wingate. Mr. GILES, who had been in the House during the whole debate, had gone out just before the question was put, and returning immediately after the names had been called, asked leave to vote. The rule of the House was read by the SPEAKER, which is that no member shall vote who was not present at putting of the question. Mr. G., on this account, was not allowed a vote. Mr. CARNES then moved to amend the said resolution by adding to the end thereof the following words: "Unless it shall be in continuation of a pursuit to a distance not exceeding ---- miles beyond the line of the particular Indians who shall have recently committed murder, or may be carrying off captives or plunder." It was resolved in the affirmative. The said resolution, as amended, was then again read, and agreed to by the House, as follows: _Resolved_, That all persons who, unauthorized by law, and with hostile intent, may be found in arms on any lands allotted or secured to the Indians by treaties between the United States and any Indian tribes, shall, on conviction thereof, forfeit a sum not exceeding ---- dollars, and be imprisoned not exceeding ---- months, unless it shall be in continuation of a pursuit to a distance not exceeding ---- miles beyond the line of the particular Indians who shall have recently committed murder, or may be carrying off captives or plunder. The second resolution being again read, and amended, was, on the question put thereupon, agreed to by the House, as follows: _Resolved_, That it shall be lawful for the military force of the United States to apprehend every person or persons found in arms as aforesaid, and him or them to convey to the civil authority of the United States, within some one of the States, who shall, by such authority, be secured to be tried in manner and form as is provided in and by the act entitled, "An act to regulate trade and intercourse with the Indian tribes:" _Provided_, that no person shall be confined after his arrest, and before his removal, more than ---- days. _Ordered_, That a bill or bills be brought in pursuant to the said resolutions, and that Mr. SEDGWICK, Mr. MADISON, and Mr. HILLHOUSE, do prepare, and bring in the same. TUESDAY, March 3. _Adjournment._ _Ordered_, That a message be sent to the Senate to inform them that this House, having completed the business before them, are now about to adjourn without day; and that the Clerk of this House do go with the said message. A message from the Senate informed the House that the Senate have appointed a committee, on their part, jointly, with such committee as may be appointed on the part of this House, to wait on the PRESIDENT OF THE UNITED STATES, and inform him that Congress is ready to adjourn without day, unless he may have any further communications to make to them. The House proceeded to consider the said message: Whereupon, _Resolved_, That this House doth agree to the resolution of the Senate for the appointment of a joint committee of the two Houses, to wait on the PRESIDENT OF THE UNITED STATES, and inform him of the intended recess of Congress; and that Mr. BOUDINOT, Mr. SEDGWICK, and Mr. TRUMBULL, be of the committee appointed on the part of this House. On a motion made and seconded, "That the thanks of this House be presented to Frederick Augustus Muhlenberg, in testimony of their approbation of his conduct in discharging the arduous and important duties assigned him while in the chair:" It was resolved unanimously: Whereupon, Mr. SPEAKER made his acknowledgments to the House in manner following: "GENTLEMEN: I feel myself highly honored by this distinguished mark of your approbation of my conduct in the station you were pleased to assign unto me; and although I am conscious that my feeble efforts do not merit so precious a reward, yet permit me to assure you that it has made a lasting impression on my mind, and I shall ever esteem it with the most unfeigned satisfaction. "Gentlemen, I sincerely thank you; may every happiness attend you; may you long continue to enjoy the confidence of your fellow-citizens; and may you meet with their just applause of having deserved well of your country." Mr. BOUDINOT, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES and inform him of the intended recess of Congress, reported that the committee had performed that service, and that the PRESIDENT signified to them that he had no further communication to make during the present session: Whereupon, Mr. SPEAKER adjourned the House _sine die_. FOURTH CONGRESS.--FIRST SESSION. HELD IN THE CITY OF PHILADELPHIA, DECEMBER 7, 1795. LIST OF MEMBERS. SENATORS. _New Hampshire._--John Langdon, S. Livermore. _Vermont._--Elijah Paine, Moses Robinson. _Massachusetts._--George Cabot, Caleb Strong. _Rhode Island._--William Bradford, Theodore Foster. _Connecticut._--Oliver Ellsworth, Jonathan Trumbull. _New York._--Aaron Burr, Rufus King. _New Jersey._--F. Frelinghuysen, John Rutherford. _Pennsylvania._--William Bingham, James Ross. _Delaware._--Henry Latimer, John Vining. _Maryland._--John Henry, Richard Potts. _Virginia._--Stevens T. Mason, Henry Tazewell. _North Carolina._--Timothy Bloodworth, Alexander Martin. _South Carolina._--Pierce Butler, Jacob Read. _Georgia._--James Gunn, George Walton. _Kentucky._--John Brown, Humphrey Marshall. REPRESENTATIVES. _New Hampshire._--Abiel Foster, Nicholas Gilman, J. S. Sherburne, Jeremiah Smith, Paine Wingate. _Vermont._--Daniel Buck, Israel Smith. _Massachusetts._--Fisher Ames, Theop. Bradbury, Henry Dearborn, Dwight Foster, Nathaniel Freeman, Benjamin Goodhue, George Leonard, Samuel Lyman, William Lyman, John Read, T. Sedgwick, George Thatcher, Joseph B. Varnum, P. Wadsworth. _Rhode Island._--Benjamin Bourne, Francis Malbone. _Connecticut._--Joshua Coit, C. Goodrich, Roger Griswold, James Hillhouse, Nathaniel Smith, Zephaniah Swift, Uriah Tracy. _New York._--Theodorus Bailey, William Cooper, Ezekiel Gilbert, Henry Glenn, John Hathorn, J. N. Havens, E. Livingston, John E. Van Allen, Philip Van Cortlandt, John Williams. _New Jersey._--Jonathan Dayton, Thomas Henderson, Aaron Kitchell, Isaac Smith, Mark Thompson. _Pennsylvania._--David Bard, George Ege, William Findlay, Albert Gallatin, Andrew Gregg, Thomas Hartley, Daniel Heister, John W. Kittera, Samuel Maclay, Frederick A. Muhlenberg, John Richards, Samuel Sitgreaves, John Swanwick, Richard Thomas. _Delaware._--John Paton. _Maryland._--Gabriel Christie, Jeremiah Crabb, George Dent, Gabriel Duvall, William Hindman, Samuel Smith, Thomas Sprigg, William Vans Murray. _Virginia._--Richard Brent, Samuel J. Cabell, Thomas Claiborne, John Clopton, Isaac Coles, William B. Giles, George Hancock, Carter B. Harrison, John Heath, John George Jackson, Andrew Moore, Anthony New, John Nicholas, John Page, Josiah Parker, Francis Preston, Robert Rutherford, A. B. Venable. _North Carolina._--Thomas Blount, Nathan Bryan, Dempsey Burges, Jesse Franklin, James Gillespie, William B. Grove, James Holland, Matthew Locke, Nathaniel Macon, Absalom Tatom. _South Carolina._--Lemuel Benton, Samuel Earle, Wade Hampton, R. G. Harper, William Smith, Richard Winn. _Georgia._--A. Baldwin, John Milledge. _Tennessee._--Andrew Jackson. _Kentucky._--Christopher Greenup. PROCEEDINGS IN THE SENATE. MONDAY, December 7, 1795. The following Senators appeared, and took their seats: JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire. CALEB STRONG and GEORGE CABOT, from Massachusetts. THEODORE FOSTER, from Rhode Island. OLIVER ELLSWORTH and JONATHAN TRUMBULL, from Connecticut. MOSES ROBINSON, from Vermont. RUFUS KING, from New York. JAMES ROSS and WILLIAM BINGHAM, from Pennsylvania. HENRY LATIMER, from Delaware. HENRY TAZEWELL and STEVENS T. MASON, from Virginia. ALEXANDER MARTIN and TIMOTHY BLOODWORTH, from North Carolina. PIERCE BUTLER and JACOB READ, from South Carolina. The VICE PRESIDENT being absent, the Senate proceeded to the election of a PRESIDENT _pro tempore_, as the constitution provides, and HENRY TAZEWELL was duly elected. _Ordered_, That the Secretary wait on the PRESIDENT OF THE UNITED STATES, and acquaint him that a quorum of the Senate is assembled, and that, in the absence of the VICE PRESIDENT, they have elected HENRY TAZEWELL President _pro tempore_. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled, and ready to proceed to business; and that, in the absence of the VICE PRESIDENT, they have elected HENRY TAZEWELL President _pro tempore_. _Ordered_, That Messrs. READ and CABOT be a joint committee on the part of the Senate, together with such committee as the House of Representatives may appoint on their part, to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. A message from the House of Representatives informed the Senate that a quorum of the House is assembled; that they have elected JONATHAN DAYTON their Speaker; and that they have concurred in the appointment of a joint committee to wait on the PRESIDENT OF THE UNITED STATES, and acquaint him that the two Houses of Congress are assembled, and are ready to receive any communications that he may be pleased to lay before them. Mr. READ, from the joint committee appointed for that purpose, reported that they had waited on the PRESIDENT OF THE UNITED STATES, and had notified him that a quorum of the two Houses of Congress were assembled; and the PRESIDENT OF THE UNITED STATES acquainted the committee that he would meet the two Houses in the Representatives' Chamber at 12 o'clock to-morrow. TUESDAY, December 8. HUMPHREY MARSHALL, from the State of Kentucky, attended. A message from the House of Representatives informed the Senate that the House are now ready to meet the Senate in the Chamber of that House, to receive such communications as the PRESIDENT OF THE UNITED STATES shall be pleased to make to them. Whereupon, the Senate repaired to the Chamber of the House of Representatives for the purpose above expressed. The Senate then returned to their own Chamber, and a copy of the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress was read, as follows: _Fellow-Citizens of the Senate, and of the House of Representatives:_ I trust I do not deceive myself, while I indulge the persuasion that I have never met you at any period, when, more than at the present, the situation of our public affairs has afforded just cause for mutual congratulation, and for inviting you to join with me in profound gratitude to the Author of all good for the numerous and extraordinary blessings we enjoy. The termination of the long, expensive, and distressing war in which we have been engaged with certain Indians north-west of the Ohio, is placed in the option of the United States, by a treaty which the commander of our army has concluded, provisionally, with the hostile tribes in that region. In the adjustment of the terms, the satisfaction of the Indians was deemed an object worthy no less of the policy than of the liberality of the United States, as the necessary basis of durable tranquillity. The object, it is believed, has been fully attained. The articles agreed upon will immediately be laid before the Senate, for their consideration. Contemplating the internal situation, as well as the external relations, of the United States, we discover equal cause for contentment and satisfaction. While many of the nations of Europe, with their American dependencies, have been involved in a contest unusually bloody, exhausting, and calamitous; in which the evils of foreign war have been aggravated by domestic convulsions and insurrection; in which many of the arts most useful to society have been exposed to discouragement and decay; in which scarcity of subsistence has embittered other sufferings; while even the anticipations of a return of the blessings of peace and repose are alloyed by the sense of heavy and accumulating burdens which press upon all the departments of industry, and threaten to clog the future springs of Government; our favored country, happy in a striking contrast, has enjoyed general tranquillity--a tranquillity the more satisfactory, because maintained at the expense of no duty. Faithful to ourselves, we have violated no obligation to others. Our agriculture, commerce, and manufactures, prosper beyond former example; the molestations of our trade (to prevent a continuance of which, however, very pointed remonstrances have been made) being overbalanced by the aggregate benefits which it derives from a neutral position. Our population advances with a celerity which, exceeding the most sanguine calculations, proportionally augments our strength and resources, and guarantees our future security. Every part of the Union displays indications of rapid and various improvement; and with burdens so light as scarcely to be perceived; with resources fully adequate to our present exigencies; with Governments founded on the genuine principles of rational liberty; and with mild and wholesome laws--is it too much to say, that our country exhibits a spectacle of national happiness never surpassed, if ever before equalled? _Gentlemen:_ Among the objects which will claim your attention in the course of the session, a review of our Military Establishment is not the least important. It is called for by the events which have changed, and may be expected still further to change, the relative situation of our frontiers. In this review, you will doubtless allow due weight to the considerations that the questions between us and certain foreign powers are not yet finally adjusted; that the war in Europe is not yet terminated; and that our Western posts, when recovered, will demand provision for garrisoning and securing them. A statement of our present military force will be laid before you by the Department of War. With the review of our army establishment is naturally connected that of the militia. It will merit inquiry, what imperfections in the existing plan further experience may have unfolded. The subject is of so much moment, in my estimation, as to excite a constant solicitude that the consideration of it may be renewed until the greatest attainable perfection shall be accomplished. Time is wearing away some advantages for forwarding the object, while none better deserves the persevering attention of the public councils. While we indulge the satisfaction which the actual condition of our Western borders so well authorizes, it is necessary that we should not lose sight of an important truth, which continually receives new confirmations, namely: that the provisions heretofore made with a view to the protection of the Indians from the violences of the lawless part of our frontier inhabitants are insufficient. It is demonstrated that these violences can now be perpetrated with impunity; and it can need no argument to prove, that, unless the murdering of Indians can be restrained by bringing the murderers to condign punishment, all the exertions of the Government to prevent destructive retaliations by the Indians will prove fruitless, and all our present agreeable prospects illusory. The frequent destruction of innocent women and children, who are chiefly the victims of retaliation, must continue to shock humanity, and an enormous expense to drain the Treasury of the Union. To enforce upon the Indians the observance of justice, it is indispensable that there shall be competent means of rendering justice to them. If these means can be devised by the wisdom of Congress, and especially if there can be added an adequate provision for supplying the necessities of the Indians, on reasonable terms--a measure, the mention of which I the more readily repeat, as in all the conferences with them they urge it with solicitude--I should not hesitate to entertain a strong hope of rendering our tranquillity permanent. I add, with pleasure, that the probability even of their civilization is not diminished by the experiments which have been thus far made under the auspices of Government. The accomplishment of this work, if practicable, will reflect undecaying lustre on our national character, and administer the most grateful consolations that virtuous minds can know. _Gentlemen of the House of Representatives:_ The state of our revenue, with the sums which have been borrowed and reimbursed pursuant to different acts of Congress, will be submitted from the proper Department, together with an estimate of the appropriations necessary to be made for the service of the ensuing year. Whether measures may not be advisable to re-enforce the provision for the redemption of the public debt, will naturally engage your examination. Congress have demonstrated their sense to be, and it were superfluous to repeat mine, that whatsoever will tend to accelerate the honorable extinction of our public debt, accords as much with the true interest of our country as with the general sense of our constituents. _Gentlemen of the Senate, and of the House of Representatives:_ The statements which will be laid before you relative to the Mint will show the situation of that institution, and the necessity of some further Legislative provisions for carrying the business of it more completely into effect, and for checking abuses which appear to be arising in particular quarters. The progress of providing materials for the frigates, and in building them; the state of the fortifications of our harbors; the measures which have been pursued for obtaining proper sites for arsenals, and for replenishing our magazines with military stores; and the steps which have been taken towards the execution of the law for opening a trade with the Indians--will likewise be presented for the information of Congress. Temperate discussion of the important subjects which may arise in the course of the session, and mutual forbearance where there is a difference of opinion, are too obvious and necessary for the peace, happiness, and welfare of our country, to need any recommendation of mine. G. WASHINGTON. UNITED STATES, _December_ 8, 1795. _Ordered_, That Messrs. KING, ELLSWORTH, and CABOT, be a committee to report the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech this day to both Houses of Congress. WEDNESDAY, December 9. The VICE PRESIDENT of the United States attended. The following motion was made by Mr. MARTIN: "_Resolved_, That, in conformity to a resolution of the Senate of the United States, passed the 20th day of February, 1794, the gallery of the Senate Chamber be permitted to be opened every morning, subject to the restrictions therein mentioned, a suitable gallery having been erected and provided in the Senate Chamber, in the late recess of Congress, for that purpose." And, the motion being amended, it was _Resolved_, That, in conformity to a resolution of the Senate of the United States, passed the 20th day of February, 1794, the gallery of the Senate Chamber be permitted to be opened every morning, subject to the restrictions in said resolution mentioned. THURSDAY, December 10. JOHN BROWN, from the State of Kentucky, and FREDERICK FRELINGHUYSEN, from the State of New Jersey, severally attended. Mr. KING, from the committee appointed for that purpose, reported the draft of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress, at the opening of the session, which was read, and ordered to lie for consideration until to-morrow. FRIDAY, December 11. ELIJAH PAINE, from the State of Vermont, attended. _Address to the President._ The Senate took into consideration the report made by the committee, of an Address to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress, at the opening of the session, which is as follows: SIR: It is with peculiar satisfaction that we are informed by your Speech to the two Houses of Congress, that the long and expensive war in which we have been engaged with the Indians north-west of the Ohio is in a situation to be finally terminated; and, though we view with concern the danger of an interruption of the peace so recently confirmed with the Creeks, we indulge the hope, that the measures that you have adopted to prevent the same, if followed by those Legislative provisions that justice and humanity equally demand, will succeed in laying the foundation of a lasting peace with the Indian tribes on the Southern as well as on the Western frontiers. The confirmation of our Treaty with Morocco, and the adjustment of a Treaty of Peace with Algiers, in consequence of which our captive fellow-citizens shall be delivered from slavery, are events that will prove no less interesting to the public humanity than they will be important in extending and securing the navigation and commerce of our country. As a just and equitable conclusion of our depending negotiations with Spain will essentially advance the interest of both nations, and thereby cherish and confirm the good understanding and friendship which we have at all times desired to maintain, it will afford us real pleasure to receive an early confirmation of our expectations on this subject. The interesting prospect of our affairs, with regard to the foreign powers between whom and the United States controversies have subsisted, is not more satisfactory than the review of our internal situation: if from the former we derive an expectation of the extinguishment of all the causes of external discord that have heretofore endangered our tranquillity, and on terms consistent with our national honor and safety, in the latter we discover those numerous and wide-spread tokens of prosperity which, in so peculiar a manner, distinguish our happy country. Circumstances thus every way auspicious demand our gratitude, and sincere acknowledgments to Almighty God, and require that we should unite our efforts in imitation of your enlightened, firm, and persevering example, to establish and preserve the peace, freedom, and prosperity of our country. The objects which you have recommended to the notice of the Legislature will, in the course of the session, receive our careful attention, and, with a true zeal for the public welfare, we shall cheerfully co-operate in every measure that shall appear to us best calculated to promote the same. JOHN ADAMS, _Vice President of the United States, and President of the Senate._ The Address was taken up by paragraphs. The fourth and fifth paragraphs were moved to be struck out by Mr. MASON.[60] Mr. MASON observed, that he had hoped nothing contained in the Address reported as an answer to the PRESIDENT's Speech, would have been such as to force the Senate to precipitate decisions. The two clauses he objected to disappointed him in that hope. They were calculated to bring again into view the important subject which occupied the Senate during their June session. This he conceived could answer no good purpose; the minority on that occasion were not now to be expected to recede from the opinions they then held, and they could not therefore join in the indirect self-approbation which the majority appeared to wish for, and which was most certainly involved in the two clauses which he should hope would be struck out. If his motion were agreed to, the remainder of the Address would, in his opinion, stand unexceptionable. He did not see, for his part, that our situation was every way auspicious. Notwithstanding the treaty, our trade is grievously molested. Mr. KING observed, that the principal features observable in the answer reported to the PRESIDENT's Address, were to keep up that harmony of intercourse which ought to subsist between the Legislature and the PRESIDENT, and to express confidence in the undiminished firmness and love of country which always characterize our chief Executive Magistrate. He objected to striking out especially the first clause, because founded on undeniable truth. It only declares that our prospects, as to our external relations, are not more satisfactory than a review of our internal situation would prove. Was not this representation true, he asked; could it be controverted? This clause, he contended, contained nothing reasonably objectionable; it did not say as much as the second, to which only most of the objections of the member up before him applied, an answer to which he should defer, expecting that a question would be put on each in order. The Chair requested that the motion should be reduced to writing. Mr. MASON accordingly reduced it to writing, and it went to striking out both clauses at once. Mr. MASON agreed most cordially that the situation of our external relations were not more a cause of joy than our situation at home. But the obvious meaning of the clause, he conceived, was an indirect approval of our situation relative to external concerns; and to this he could not give his assent, as he did not consider their aspect as prosperous or auspicious. Mr. BUTLER said, that when the committee was appointed to draft an answer, he hoped they would have used such general terms as to have secured a unanimous vote. He was willing to give the Chief Magistrate such an answer as respect to his station entitled him to, but not such a one as would do violence to his regard for the constitution and his duty to his constituents. He could not approve of long and detailed answers, however unexceptionable the Speech might be in matter, and however respectable the character might be from whom it came. He had hoped, from the peculiar situation of the country, and of the Senate, that nothing would have been brought forward in the answer, on the subject which agitated the June Executive session, calculated to wound the feelings of members. He had been disappointed; it was evident that some members of the Senate could not give their voice in favor of the Address in its present shape, without involving themselves in the most palpable inconsistency. He had long since, for his own part, declared himself against every article of the treaty, because in no instance is it bottomed on reciprocity, the only honorable basis. After this declaration, how could he, or those who coincided in opinion with him, agree to the present Address without involving themselves in the most palpable inconsistency? The sentence objected to, notwithstanding the explanation of the gentleman from New York, appeared to him so worded as to lead the citizens at large to believe that the spoliations on our commerce were drawing to a fortunate close. This was not, he conceived, warranted by the existing state of things. Indeed, he protested, he knew no more of the actual situation of the treaty negotiation than the remotest farmer in the Union; could he then declare, he asked, that it was drawing to a happy close? Indeed, from the latest information received, far from our situation having been ameliorated by the negotiations of our Executive, he conceived our trade as much in jeopardy as ever. As to the internal prosperity, he owned there was some cause for congratulation; but even in this his conviction could not carry him as far as the clauses in the Address seemed to go. In a pecuniary point of view, the country had made a visible progress; but he saw in it no basis of permanent prosperity. There were no circumstances attendant on it that gave a fair hope that the prosperity would be permanent. The chief cause of our temporary pecuniary prosperity is the war in Europe, which occasions the high prices our produce at present commands; when that is terminated, those advantageous prices will of course fall. Mr. B. now came to speak of the second objectional clause. He regretted whenever a question was brought forward that involved personality in the most indirect manner. He wished always to speak to subjects unconnected with men; but the wording of the clause was unfortunately such as to render allusion to official character unavoidable. He objected principally to the epithet _firm_, introduced into the latter clause, as applied to the Supreme Executive. Why _firmness_? he asked. To what? or to whom? Is it the _manly_ demand of restitution made of Great Britain for her accumulated injuries that called forth the praise? for his own part he could discern no firmness there. Is it for the _undaunted_ and _energetic_ countenance of the cause of France, in her struggle for freeing herself from despotic shackles? He saw no _firmness_ displayed on that occasion. Where then is it to be found? Was it in the opposition to the minority of the Senate and the general voice of the people against the treaty that that _firmness_ was displayed? If it is that _firmness_ in opposing the will of the people, which is intended to be extolled, the vote shall never, said Mr. B., leave the walls of the Senate with _my_ approbation. Mr. READ said, he was not in the habit of giving a silent vote, and, as many of his constituents were adverse to the instrument to which he had given his assent, he thought this a fit opportunity to say something on the subject. Gentlemen on the other side had spoken of their feelings; did they suppose, he asked, that those who were in the majority had not feelings? Also, gentlemen declared they would not recede from their former determinations; did they expect that the majority would recede? He had, he said, taken the question of the treaty in all its aspects, and considered it maturely, and though he lamented that he differed in opinion on that subject with his colleague, and a portion of the people of his State, he nevertheless remained convinced that the ratification of it was advisable: it rescued the country from war and its desolating horrors. After reading that part of the PRESIDENT's Speech to which the clauses objected to were an echo, he asked, whether any one could say, under the conviction that the measures of Government had prevented a war, that our view of foreign relations was not consolatory? On all hands, he observed, the idea of a war was deprecated; both sides of the House wished to avoid it; then is it not a consolatory reflection to all that its horrors have been averted? Is there a man who does not believe that, had the treaty not been ratified, we should have had war? If the country had been plunged into a war, would it be as flourishing as it is? The trifling vexations our commerce has sustained are not to compare to the evils of hostility. What good end could have been answered by a war? The Address, in the part under discussion, says no more than that we rejoice at the prospect that the blessings of peace will be preserved; and does not this expectation exist? Great Britain, in the plenitude of her power, had availed herself of the right she had under the law of nations, of seizing enemies' goods in neutral vessels; but has allowed compensation to some Americans, and a system of mild measures on our part is the best security for further. But the Senate and the PRESIDENT are the constitutional treaty-making powers. If mistaken in their decisions, they cannot be accused of having been misled by sudden and immatured impressions. He should conceive himself unfit to fill a chair in the Senate, if he suffered himself to be carried away by such impressions. The people could not, in their town meetings, deprived of proper information, possibly form an opinion that deserved weight, and it was the duty of the Executive not to be shaken in their determination by tumultuous proceedings from without. Upon this ground he much approved the PRESIDENT's conduct, and thought it entitled to the epithet, firm. In local questions, affecting none but the interest of his constituents, he should attend to their voice, but on great national points, he did not consider himself as a Representative from South Carolina, but as a Senator for the Union. In questions of this last kind, even if the wishes of his constituents were unequivocally made known to him, he should not conceive himself bound to sacrifice his opinions to theirs. He viewed the PRESIDENT as standing in this situation, and though he might hear the opinions of the people from every part of the United States, he should not sacrifice to them his own conviction; in this line of conduct he has shown his firmness, and deserves to be complimented for it by the Senate. Mr. ELLSWORTH was opposed to striking out. The clause records a fact, and if struck out, the Senate deny it. The PRESIDENT asserts it; in the Address reported, the Senate assent; a motion is made to strike out; is it because the truth of it is doubted? It cannot be called an unimportant fact, therefore its omission will not be imputed to oversight. The latter part of the clause expresses our gratitude to Almighty God. Will the Senate refuse to make an acknowledgment of that kind? Do they not admit that He is the source of all good, and can they refuse to acknowledge it? And if so, is it possible that, in admitting the fact and expressing the sentiment, which so naturally flows from it, the Senate should wound the feelings of any friend to his country? The truth of the fact is as clear as that the sun now shines; the sentiment is unexceptionable; he, therefore, recommended to his friend the mover, not to insist upon striking out merely, but that he should vary the motion, and propose a substitute. To bring the mind to the point with precision, it was necessary to attend to the wording of the clause. He read it. As to the signification of that part which relates to our foreign concerns, he did not consider it as hypothetical, but a positive declaration of a conviction that their situation is satisfactory, and on that ground he wished to meet the question. The clause objected to expresses an expectation that the causes of external disagreement which have unhappily existed, will be peaceably done away. He said he had that expectation; many have it not. Those who have it not will negative the clause; those who have it will vote in its favor; the result will be the sense of a majority; the Senate could not be expected, more than on other occasions, to be unanimous; if the declarations contained in those clauses are supported, they will be considered as the sense of the majority of the Senate; others may dissent; but because unanimity could not be obtained, it was no reason why the majority should give a virtual negative to the declaration which they conceived founded on truth. Mr. TAZEWELL said, the discussion had taken a turn different from that which he expected when he heard the motion. He understood the motion at the time it was made, and still so understood it, as not intending to question the propriety of any thing which was contained in the PRESIDENT's communication to both Houses of Congress. But from what had been said, (by Mr. READ, of South Carolina,) that part of the answer to the PRESIDENT's communication which had given rise to the motion, was intended to have a further operation than he originally believed. He asked what had given rise to the practice of returning an answer of any kind to the PRESIDENT's communication to Congress in the form of an Address? There was nothing, he said, in the constitution, or in any of the fundamental rules of the Federal Government, which required that ceremony from either branch of the Congress. The practice was but an imitation of the ceremonies used upon like occasions in other countries, and was neither required by the constitution, nor authorized by the principles upon which our Government was erected. But having obtained, he did not intend now to disturb it. To allow the utmost latitude to the principle which had begotten the practice, it could only tolerate the ceremony as a compliment to the Chief Magistrate. It could not be permitted to arrest all opinions previous to regular discussions, nor to operate as a means of pledging members to the pursuit of a particular course, which subsequent and more full inquiries might show to be extremely improper. Every answer, therefore, to the PRESIDENT's communication ought to be drawn in terms extremely general, neither seducing the PRESIDENT into a belief that this House would pursue a general recommendation into points not at first contemplated by them, nor pledge themselves to the world that that state of things was just, which time had not permitted them thoroughly to examine. The clauses now under consideration had, at least in one instance, deviated from this principle. They declare to the world, "That the interesting prospect of our affairs with regard to the foreign powers, between whom and the United States controversies have subsisted, is not more satisfactory than the review of our internal situation." The communications from the PRESIDENT have not uttered so bold a sentiment, nor is there any thing in those communications that justifies the assertion of this fact. Placing the treaty with Great Britain out of the question, which seems to have been the uppermost consideration when this sentence was penned, the seizure of our provision vessels since the signature of that treaty, and the unwarrantable imprisonment of our seamen, are acts which cloud our prosperity and happiness. The minds of the Americans must be brought to consider these things as trivial incidents in our political affairs, before the sentence under consideration can be approved. He said he must, therefore, vote for the motion to strike out the two clauses of the answer, in order that some more fit expressions might then be introduced to succeed them. He hoped the answer might be couched in terms just and delicate towards the PRESIDENT, without wounding the feelings of any Senator; and he believed both might be done without any difficulty, after the two clauses were expunged. After some further observations from Messrs. MASON, BUTLER, and BLOODWORTH, in which the latter expressed the opinion that he did conceive the terms of our peace with Great Britain consistent with the dignity and honor of the United States, the question was put, and decided for striking out--ayes 8, noes 14. On a further attempt to amend one of the clauses some conversation took place more remarkable for ingenuity than interesting for solidity, being chiefly a debate upon words. The Senate divided on it--7 to 15. On the question, of agreeing to the Address, it was carried--14 to 8, as follows: YEAS.--Messrs. Bingham, Cabot, Ellsworth, Foster, Frelinghuysen, King, Latimer, Livermore, Marshall, Paine, Read, Ross, Strong, and Trumbull. NAYS.--Messrs. Bloodworth, Brown, Butler, Langdon, Martin, Mason, Robinson, and Tazewell. _Ordered_, That the committee who prepared the Address wait on the PRESIDENT OF THE UNITED STATES, and desire him to acquaint the Senate at what time and place it will be most convenient for him that it should be presented. Mr. KING reported, from the committee, that they had waited on the PRESIDENT OF THE UNITED STATES, and that he would receive the Address of the Senate to-morrow at 12 o'clock. Whereupon, resolved, that the Senate will, to-morrow at 12 o'clock, wait on the PRESIDENT OF THE UNITED STATES accordingly. SATURDAY, December 12. Agreeably to the resolution of yesterday, the Senate waited on the PRESIDENT OF THE UNITED STATES, and the VICE PRESIDENT, in their name, presented the Address then agreed to. To which the PRESIDENT OF THE UNITED STATES was pleased to make the following reply: GENTLEMEN: With real pleasure I receive your Address, recognizing the prosperous situation of our public affairs, and giving assurances of your careful attention to the objects demanding Legislative consideration; and that, with a true zeal for the public welfare, you will cheerfully co-operate in every measure which shall appear to you best calculated to promote the same. But I derive peculiar satisfaction from your concurrence with me in the expressions of gratitude to Almighty God, which a review of the auspicious circumstances that distinguish our happy country have excited; and I trust the sincerity of our acknowledgments will be evinced by a union of efforts to establish and preserve its peace, freedom, and prosperity. G. WASHINGTON. The Senate returned to their own Chamber, and soon after adjourned. MONDAY, December 14. JOHN RUTHERFORD, from New Jersey, attended. TUESDAY, December 15. AARON BURR, from New York, and JOHN VINING, from Delaware, severally attended. WEDNESDAY, December 16. WILLIAM BRADFORD, from Rhode Island, attended. FRIDAY, December 18. GEORGE WALTON, appointed a Senator of the United States by the Executive of the State of Georgia, in place of JAMES JACKSON, resigned, produced his credentials, and, the oath required by law being administered, he took his seat in the Senate. MONDAY, January 4. The following Message was received from the PRESIDENT OF THE UNITED STATES, by Mr. Dandridge, his Secretary. Captain Sedam, of the first Sub-legion, bearing the colors mentioned in the Message: _Gentlemen of the Senate, and of the House of Representatives:_ A Letter from the Minister Plenipotentiary of the French Republic, received on the 22d of the last month, covered an Address, dated the 21st of October, 1794, from the Committee of Public Safety to the Representatives of the United States in Congress; and also informed me that he was instructed by the Committee to present to the United States the Colors of France. I therefore proposed to receive them last Friday, the first day of the new year, a day of general joy and congratulation. On that day the Minister of the French Republic delivered the Colors with an Address, to which I returned an answer. By the latter, the Senate will see that I have informed the Minister that the Colors will be deposited with the archives of the United States. But it seemed to me proper previously to exhibit to the two Houses of Congress these evidences of the continued friendship of the French Republic, together with the sentiments expressed by me on the occasion in behalf of the United States. They are herewith communicated. G. WASHINGTON UNITED STATES, _January_ 4, 1796. The Message and papers were read; after which the colors were withdrawn, and the Message and papers ordered to lie for consideration. TUESDAY, January 5. _Presentation of French Flag._ A motion was made by Mr. TAZEWELL, seconded by Mr. LANGDON, that it be-- "_Resolved by the Senate of the United States in Congress assembled_, That the President be informed the Senate have received, with the purest pleasure, the evidences of the continued friendship of the French Republic, which accompanied his Message of yesterday. "That he be requested to assure that magnanimous nation, through the proper organ, that the Senate unite with him in all the feelings expressed to the Minister of France, on the presentation of the Colors of his nation, and devoutly wish that this symbol of the triumphs and enfranchisement of that great people, given as a pledge of faithful friendship, and placed among the evidences and memorials of the freedom and independence of the United States, may contribute to cherish and perpetuate the sincere affection by which the two Republics are so happily united." Mr. ELLSWORTH moved that these resolutions should lie on the table until to-morrow, that members should have an opportunity of perusing attentively the papers accompanying the Message of the PRESIDENT. Mr. BUTLER said, that he should very reluctantly, in general cases, oppose a motion of the kind now made; but, on the present occasion, he could not give it his assent. If the resolutions were intricate, or by the question the judgment of the Senate could be committed, he should accord in the wish expressed by the mover; but, as the resolutions go merely to an expression of the sentiments of the House respecting the French Republic, their feelings and judgment must be as ripe for such expression now as they can be at any future period. It was not like a law that was to affect the Senate hereafter; it had nothing to do with the internal situation of the country or municipal regulations; but they only went to express a sympathetic feeling for the French Republic, and a wish to see them enjoy every happiness under the form of government they have lately chosen. This cannot commit the Senate, he conceived. If the motion for postponement prevailed, it might convey a distrust of the sense of the Senate respecting that Republic. He felt a lively sense towards that nation on account of the glorious cause in which they had embarked; of their gallantry and spirit in their arduous struggle to place men upon a footing they were entitled to, raising them from a state of the most abject and debasing slavery. He declared himself always ready to express his feelings on the magnanimity of such a people. If other members of the Senate possessed not those feelings, they could now give the resolutions their negative. He did not wish for a postponement, as it might be viewed as in a manner slighting the Republic. Mr. ELLSWORTH believed there was no real difference of opinion on the subject. All felt an ardent friendship for the French; but one mode of expressing it might be more proper than another. Besides, it might be a doubt whether an expression of the feelings of the Senate on this occasion was necessary--the Representatives had already spoken. He was not, as the member who spoke before him, ready on all occasions to express his sentiments; but only on fit occasions, and then he wished to do it in the most proper manner. The operations of his mind, he confessed, were slow. He wished more time for the perusal of the documents laid before the Senate by the President. Mr. LIVERMORE was also in favor of postponement. Mr. LANGDON observed, that since members did so earnestly require time, he should not urge an immediate decision; he should no longer object to a postponement till to-morrow. He was happy to hear gentlemen say there was no difference of sentiment upon the present occasion; he hoped that, upon subjects relative to France, this might always be the case, and that the Senate would not confine itself to empty professions of attachment, but would evince it by substantial deeds. Mr. TAZEWELL did not wish to press the business to an immediate decision, since members desired time. He confessed he did not expect a motion for a postponement would be made, as the resolutions he offered contained nothing more than the PRESIDENT had expressed on the occasion. However, if it was wished that the Senate should express their sentiments in still stronger language than the PRESIDENT, he should not object. The opposition to the motion for postponement being withdrawn, it was agreed to. WEDNESDAY, January 6. The Senate resumed the consideration of the motion made yesterday on the Message of the PRESIDENT OF THE UNITED STATES, of the 4th instant, and the presentation of the flag of the French Republic; and, On motion of Mr. CABOT, seconded by Mr. ELLSWORTH, to expunge these words from the second paragraph of the motion: "that he be requested to assure that magnanimous nation, through the proper organ"-- Mr. STRONG was in favor of striking out. He observed that the communication made to the Senate by the PRESIDENT consisted of two distinct parts, the letter from the French Committee of Safety and the address accompanying the flag. In the letter not one word was said about the flag; it was written in October, '94, and there was probably then no idea of sending one. The letter and the flag only happened to be delivered at the same time; there was no other connection between them. The letter, he said, was in answer to one from this country, and was meant to close a complimentary correspondence. It required no answer; it would puzzle any one to make an answer to it. An attempt was made by the resolution offered, which proved it impossible to answer it. The resolution forsook the contents of the letter, which, he repeated, closed the correspondence. The United States had presented to the National Convention our flag; or rather our Minister (and he was unwilling to question the propriety of his so doing) presented it on behalf of this Government; a French flag was sent in return; then the propriety of an answer on this ground became the sole question. This flag had been delivered to the PRESIDENT, who made an answer on the presentation of it--a complete and perfect answer. He communicated his answer to the Senate. Then was it proper, he asked, that the Executive should be requested to make a second answer, and nearly in the same words? The PRESIDENT, in his answer, expressly says, that he speaks not only his own sentiments, but those of the citizens at large, including, no doubt, the Senate. In this situation of the transaction nothing can be proper to be done by the Senate but to express their opinion of the propriety of his answer; and this would be accomplished by adopting the substance of the resolution, after striking out the words proposed. There could be (he concluded by observing) no difference of feeling in the Senate on the occasion. The only difference was in the mode of expressing it, and he inclined, for the reasons given, to that which was the object of the motion for striking out. Mr. ELLSWORTH was also of opinion that the subject divided itself into two distinct parts. The first object was an expression of the pleasure of the Senate at this new evidence of the friendship of France, and joining with the PRESIDENT in all the feelings he had expressed on the occasion. This would be effectually done by entering on the journals the resolution as proposed to be amended. The PRESIDENT received the flag and answered, then communicated the transaction to the Senate. It appeared, by the papers communicated, he contended, that there was no connection between the letter of the Committee of Public Safety and the flag. He would not say that both were not very important transactions, but they were disconnected. The letter was written much antecedent to the sending of the flag--it was written in '94, and was intended to close a correspondence. The correspondence began by an address from the Convention, while Robespierre was an active member of it. This address was to Congress: the PRESIDENT transmitted it to each House, and they sent it back to the Executive, requesting he would answer it, with expressions of the friendly dispositions of the United States towards France. The resolutions of the Houses and the letter of the Executive were transmitted through Mr. Monroe. The letter now in the view of the Senate is an answer to that, and closes the complimentary correspondence, if it ever can close. Propriety did not require another word from the Senate; indeed, decency did not admit it, for it could not be contended that the correspondence should be kept up _ad infinitum_. As to the flag, how can it require an answer from the Senate? It was not presented to them by the French Minister, but to the PRESIDENT, who had answered, not only for himself, but for the citizens of the United States; and he imagined it would not be contended that the members of the Senate were not citizens. It is not advanced, he said, that the PRESIDENT did not express the sentiments of the Senate in the answer to the Minister; on the contrary, his words are borrowed in this resolution. But it is wished he should answer again in the same strain, and this was, in his opinion, neither necessary nor even proper. Mr. ELLSWORTH next combated the resolution as originally offered as unconstitutional. Nothing, he contended, could be found in the constitution to authorize either branch of the Legislature to keep up any kind of correspondence with a foreign nation. To Congress were given the powers of legislation and the right of declaring war. If authority beyond this is assumed, however trifling the encroachment at first, where will it stop? It might be said, that this was a mere matter of ceremony and form, and, therefore, could do no harm. A correspondence with foreign nations was a business of difficulty and delicacy--the peace and tranquillity of a country may hinge on it. Shall the Senate, because they may think it in one case trifling, or conceive the power ought to be placed in them, assume it? If it was not specially delegated by the constitution, the Senate might, perhaps, but it is positively placed in the hands of the Executive. The people who sent us here, (said Mr. E.) placed their confidence in the PRESIDENT in matters of this nature, and it does not belong to the Senate to assume it. So forcibly, he said, were both Houses impressed with the impropriety of the Legislature corresponding with any foreign power, that, when it was announced to them that the unfortunate Louis XVI. had accepted the constitution of '89, the communication was sent back to the PRESIDENT, with a request that he would answer it on their behalf, with congratulations and best wishes. But even this, he considered, they had not strictly a right to do. It was only saving appearances. Neither branch had a right to dictate to the PRESIDENT what he should answer. The constitution left the whole business in his breast. It was wrong to place him in the dilemma of disobliging the Legislature or sacrificing his own discretion. But if such practices had inadvertently been followed, it was full time to secede from them. He recapitulated, in a few words, and concluded, by observing, that should the motion for striking out prevail, members would still be in order to amend the resolution, if they chose, by adding to the warmth of expression it already contained. Mr. BUTLER considered the situation into which the member up before him seemed desirous that the Senate should be placed, as highly degrading; they were to be deprived of the right of expressing their own sentiments, they were to have no voice, no will, no opinion of their own, but such as it would please the Executive to express for them. The only fault he found in the resolve was, that it was not full and expressive enough. He observed, that it appeared the studied desire of one part of the House to cut off all communication between the people of the United States and the people of the French Republic. Their representatives are now told, that they can have no will, no voice, but through the Executive. Their constituents never intended that they should be placed in this ridiculous point of view, and he declared he never could sit under it silently. He turned to the journals of the Senate to show that in the proceedings in the case of the answer to the communication from Robespierre and others, there was a considerable division in the Senate, and the mode adopted was by a majority only; but did not meet the sense of the Senate very generally. Upon the presentation of the flag to the PRESIDENT, the Minister particularly observes, that it is for the people of the United States. The PRESIDENT in his answer, speaks of himself and his own feelings. He read part of his answer--"Born in a land of Liberty," &c. He does intimate, he observed, in a cursory manner, that he trusts he speaks the sentiments of his fellow-citizens: but does not attempt to make any professions of either branch of the Legislature, thinking, no doubt, that when the subject came before them, they would speak for themselves. Suppose, he asked, that the expression of friendship contained in the PRESIDENT's Address on the occasion, fell short of the feelings of the Senate, would they, he asked, adopt the expressions for their own? For his own part, he declared, he could not leave it to others to speak his sentiments, but chose to reserve that right to himself. Even if no communication had been received from the French Republic, no token of attachment, the present period in their affairs, the establishment of a new government, would warrant an address of congratulation. There could be no impropriety in it, unless there were objections to drawing nigher to the Republic. Besides, the address of the Committee of Safety was certainly intended for the Legislature, being directed to the Representatives, unless it could be denied that the Senate were Representatives of the people of the United States. There was nothing in the constitution, he contended, that could prevent the Legislature from expressing their sentiments: it was not an Executive act, but a mere complimentary answer to a complimentary presentation. If this right was denied them, where would the principle stop? The Senate might be made in time mere automata. It was as proper, he contended, for the Senate to express an opinion on the occasion as for the PRESIDENT or the House of Representatives. He concluded by observing, that the resolution as offered, said as little as could be said on the occasion, and he never could consent to the striking out, which would cause it to be entered only on the journal, and would be an indirect slight of the French Republic, as the sentiments of the Senate would not be communicated to them. Mr. TAZEWELL was happy to find no difference in the Senate as to the substance of the resolution. As the form, however, had been made matter of debate, some importance had been given to it which its intrinsic consequence perhaps did not deserve, and it became the Senate to weigh well their decision. It certainly, he said, could not be unknown to the Senate, that unfavorable impressions have travelled abroad respecting their feelings and sentiments towards the French, and he suggested to their consideration whether if the present motion for striking out prevailed, even in the face of their own precedents, it would not give countenance to the surmise. On a former occasion, he stated, a communication was made to the Senate through the PRESIDENT, informing that the King of France had accepted the Crown under the constitution of 1789. The Senate were not content on that occasion with barely approving what the PRESIDENT had done, but requested the PRESIDENT to say in their behalf, that they were happy at the event, and to assure the king of their good will for the prosperity of the French nation and his own. What difference, he asked, was there on that occasion and the present, when the French just adopted and organized a new government? Will it not be said, he asked, that the robes of royalty have charms with the Senate, which the humble habiliments of Democracy do not possess in their eyes, if on the present occasion they should deviate from a precedent established before royalty was abolished? This would be naturally implied, and the Senate, he conceived, should avoid the imputation. There was no necessity pleaded in favor of striking out; if the motion was not insisted on, it would remove impressions which it was useful should be removed, and which he trusted would be removed. He dwelt on the impropriety of the Senate's rejecting a form of proceeding in this case, not only sanctioned by their own precedent, but by the practice of both the PRESIDENT and Senate. Why, especially, he asked, should they give rise to invidious comparisons between themselves and the other branch? He hoped the motion for striking out would not prevail. Mr. ELLSWORTH conceived there existed a material difference between the present case and that cited by the member last up. The communication was then to Congress, now to the PRESIDENT, who had only given an account of the transaction to the Senate. He added, however, that the line of conduct pursued by the Senate on the former occasion did not meet his approbation; they expressed hopes which he never thought could be realized, and in the event it proved so; for before the sentiments of the Senate could cross the Atlantic, the unfortunate king and constitution were both over-thrown. This, he argued, should make the Senate wary in their proceedings in analogous cases. Upon the communication from Robespierre, Barrere, and others, the Senate were more cautious, they said nothing about the constitution, but only requested the PRESIDENT to express in their behalf the sentiments of friendship, &c., which the Senate entertained for France. The Senate gave the PRESIDENT a short text on that occasion; and he wrote according to his own discretion, and perhaps expressed more than the Senate would have said. If a short text was given, this objection occurred; if the Senate amplified, then they dictated improperly to the PRESIDENT what he should write. The example of the House of Representatives had been mentioned; he conceived it was no rule of proceeding for the Senate. The fact was, that the resolve carried in that House was upon a very slight view indeed of the papers communicated. Indeed, it would appear upon the face of it, that it was penned before the papers were read. This was, in his opinion, no example for imitation; the Senate ought to proceed with their usual deliberation. It had been said that doubts had gone abroad, whether the Senate were friendly to France. Those doubts had been raised by writers among us, the same who also endeavor to convince the Americans that the friendship of France towards them was not cordial. This must appear unfounded from the proceeding now the object of debate, and the former suspicion must be removed by an insertion of the substance of the resolution now before the Senate on their journals. Mr. TAZEWELL said a few words to show that there was no difference between the case he had already cited, the proceeding of the Senate, when they expressed their satisfaction at the manner in which the National Convention had honored the memory of BENJAMIN FRANKLIN, and the present case. Mr. Ross differed. In the former instances, the PRESIDENT made the original communications to the Senate before he had answered them; now he has answered and only communicates an account of the transaction. Mr. BURR was against striking out. The National Convention, he observed, might, when they received the answer to their first communication, have said, as is now said on the floor of the Senate, that the correspondence there ended, and that it was not necessary to make us a reply; but they acted differently, and he hoped the Senate would acknowledge the receipt of their pledge of friendship. Indeed he said, he could not see that any great harm would arise in the two branches of the Legislature interchanging even once a year a letter of friendship and good will with the Republic. It was objected that the present resolution was no answer to the letter. A few lines would make it so, and they might easily be added. The omission did not prove, as had been asserted by one member, that it was impossible to answer it. That it was not impossible was testified by the proceedings of the other branch. He did not intend to slight the dignity of the Senate, however, he said, by quoting the proceedings of the other House as a binding rule of proceeding for this; but their proceedings certainly proved the possibility of making an answer; and besides, there was full as much propriety in looking for precedents in their conduct, as in the proceedings of a British Parliament. Each, however, in their place might deserve weight, though not implicit reliance. He advocated the rights of the Senate to answer for themselves, and the propriety of acknowledging the receipt of the Colors, which were not sent to the Executive exclusively. He concluded by citing the Senate's own precedents in analogous cases, and he hoped that it would not be insisted that the practice of two or three successive years deserved to be laid to the charge of inadvertency. After a few words more from Messrs. STRONG, BURR, READ, and BUTLER, the yeas and nays were called upon striking out, which were taken and stood--yeas 16, nays 8, as follows: YEAS.--Messrs. Bingham, Bradford, Cabot, Ellsworth, Foster, Gunn, Latimer, Livermore, Marshall, Paine, Read, Ross, Rutherford, Strong, Trumbull, and Walton. NAYS.--Messrs. Bloodworth, Brown, Burr, Butler, Langdon, Martin, Robinson, and Tazewell. Whereupon it was _Resolved_, unanimously, that the PRESIDENT be informed the Senate have received, with the purest pleasure, the evidences of the continued friendship of the French Republic, which accompanied his Message of the 4th inst. That the Senate unite with him in all the feelings expressed to the Minister of France on the presentation of the Colors of his nation, and devoutly wish that this symbol of the triumphs and enfranchisement of that great people, given as a pledge of faithful friendship, and placed among the evidences and memorials of the freedom and independence of the United States, may contribute to cherish and perpetuate the sincere affection by which the two Republics are so happily united. _Ordered_, That the Secretary lay this resolution before the PRESIDENT OF THE UNITED STATES. MONDAY, May 9. On motion, that a paper purporting to be the appointment of WILLIAM BLOUNT and WILLIAM COCKE, respectively, to seats in the Senate, should be read, it was agreed that the motion be postponed until to-morrow. TUESDAY, May 10. _New State of Tennessee._ The Senate resumed the consideration of the report of the committee to whom was referred the Message of the PRESIDENT OF THE UNITED STATES, of the 8th of April last, respecting a new State south of the river Ohio; together with the motion for amendment, made on the 11th; and on the question to agree to the proposed amendment, it passed in the negative. WEDNESDAY, May 23. _The Proposed State of Tennessee._ The Senate resumed the consideration, in paragraphs, of the bill laying out into one State the territory ceded by the State of North Carolina to the United States, and providing for an enumeration of the inhabitants thereof. A letter, signed William Blount and William Cocke, was read, stating that they have been duly and legally elected Senators to represent the State of Tennessee in the Senate. On motion, "That Mr. Blount and Mr. Cocke, who claim to be Senators of the United States, be received as spectators, and that chairs be provided for that purpose until the final decision of the Senate shall be given on the bill proposing to admit the South-western Territory into the Union:" A motion was made to refer the consideration thereof to a committee; and it passed in the negative. On motion to agree to the original motion, it passed in the affirmative--yeas 12, nays 11, as follows: YEAS.--Messrs. Bloodworth, Brown, Burr, Butler, Foster, Henry, Langdon, Martin, Potts, Robinson, Tattnall, and Tazewell. NAYS.--Messrs. Bingham, Bradford, Gunn, Latimer, Livermore, Marshall, Read, Ross, Rutherford, Strong, and Trumbull. After debate, the further consideration of the bill last mentioned was postponed until to-morrow. A letter from RUFUS KING was read, stating that he had accepted the appointment of Minister Plenipotentiary at the Court of London, and resigning his seat in the Senate. THURSDAY, May 26. _New State of Tennessee._ The bill laying out into one State the territory ceded by the State of North Carolina to the United States, and providing for an enumeration of the inhabitants thereof, was read the third time. On motion, that the bill be amended, so that the State be called and known by the name of Tennessee, it passed in the negative. And, after agreeing to sundry amendments, on motion, that the following be an additional section to the bill: "_And be it further enacted_, That if on the returns by the Supervisor of the Revenue for the District of Tennessee, as directed by this act, it shall appear to the PRESIDENT OF THE UNITED STATES that the territory by this act laid out, and formed into a State, doth contain sixty thousand free inhabitants, that then it shall be lawful for the President, by his Proclamation, to declare the same; and that, in that event, and on their forming a constitution consistent with the ordinance of Congress of the thirteenth day of July, one thousand seven hundred and eighty-seven, the said State, by the name and style of 'The State of Tennessee,' shall be received and admitted into the Union as a new and entire member of the United States of America. And, until an enumeration shall be made, under the authority of Congress, for the purpose of apportioning Representatives, the said State of Tennessee shall be entitled to choose one Representative:" A motion was made to amend this motion, by striking out the following words: "And on their forming a constitution consistent with the ordinance of Congress of the thirteenth day of July, one thousand seven hundred and eighty-seven:" It passed in the negative--yeas 11, nays 12, as follows: YEAS.--Messrs. Bloodworth, Brown, Burr, Butler, Henry, Langdon, Livermore, Martin, Robinson, Tattnall, and Tazewell. NAYS.--Messrs. Bingham, Bradford, Foster, Gunn, Latimer, Marshall, Potts, Read, Ross, Rutherford, Strong, and Trumbull. And, on the question to agree to the motion without amendment, it passed in the negative--yeas 10, nays 12, as follows: YEAS.--Messrs. Burr, Foster, Gunn, Henry, Latimer, Livermore, Martin, Potts, Tattnall, and Trumbull. NAYS.--Messrs. Bingham, Bloodworth, Bradford, Brown, Langdon, Marshall, Read, Robinson, Ross, Rutherford, Strong, and Tazewell. On the question, that the bill pass, it was determined in the affirmative--yeas 15, nays 8, as follows: YEAS.--Messrs. Bingham, Bradford, Brown, Foster, Gunn, Latimer, Martin, Potts, Read, Ross, Rutherford, Strong, Tattnall, Tazewell, and Trumbull. NAYS.--Messrs. Bloodworth, Burr, Butler, Henry, Langdon, Livermore, Marshall, and Robinson. So it was resolved, that this bill pass; that it be engrossed; and that the title thereof be "An act laying out into one State the territory ceded by the State of North Carolina to the United States, and providing for an enumeration of the inhabitants thereof." TUESDAY, May 31. A message from the House of Representatives informed the Senate that the House have passed a bill, entitled "An act to alter the time of the next annual meeting of Congress;" in which they desire the concurrence of the Senate. They insist on their amendment, disagreed to by the Senate, to the bill, entitled "An act laying out into one State the territory ceded by the State of North Carolina to the United States, and providing for the enumeration of the inhabitants thereof;" ask a conference thereon, and have appointed managers at the same, on their part. They agree to all the amendments of the Senate to the bill, entitled, "An act regulating the grants of land appropriated for military services, and for the Society of United Brethren, for propagating the Gospel among the Heathen;" except to the last, to which they disagree. _New State of Tennessee._ The Senate proceeded to consider the resolution of the House of Representatives, desiring a conference on the bill, entitled, "An act laying out into one State the territory ceded by the State of North Carolina to the United States, and providing for an enumeration of the inhabitants thereof." On motion, to postpone the further consideration thereof until the next session of Congress, it passed in the negative--yeas 10, nays 13, as follows: YEAS.--Messrs. Bingham, Bradford, Foster, Latimer, Potts, Read, Ross, Rutherford, Strong, and Trumbull. NAYS.--Messrs. Bloodworth, Brown, Burr, Butler, Gunn, Henry, Langdon, Livermore, Marshall, Martin, Robinson, Tattnall, and Tazewell. _Resolved_, That the Senate agree to the proposed conference, and that Messrs. BURR and STRONG be managers at the same on their part. Mr. BURR, from the joint committee of conference on the bill, entitled "An act laying out into one State the territory ceded by the State of North Carolina to the United States, and providing for an enumeration of the inhabitants thereof," reported, as the opinion of the majority of the joint committee, that the Senate recede from their disagreement to the amendment of the House of Representatives. Whereupon, _Resolved_, That the Senate recede from their disagreement to the said amendment. A motion was made by Mr. Burr, as follows: "_Resolved_, That any enumeration of the inhabitants of any district under the temporary Government of the United States, for the purpose of furnishing evidence to Congress that such district contains the number which may entitle it to admission into the Union, shall have been taken and made, under a law to be made by the Legislature of the said district, of the free inhabitants only, and, in all other respects, pursuant to the provisions contained in the act, entitled "An act providing for the enumeration of the inhabitants of the United States:"" Which motion was read and ordered to lie until to-morrow for consideration. WEDNESDAY EVENING, 5 o'clock, June 1. _New State of Tennessee._ On motion, by Mr. MARTIN, that it be "_Resolved_, That the Honorable William Blount, and William Cocke, Esquires, who have produced credentials of being duly elected Senators for the State of Tennessee, be admitted to take the oath necessary for their qualification, and their seats accordingly;" _Ordered_, That a paper, purporting to be the credentials of Mr. BLOUNT and Mr. COCKE, be read. And, on the question to agree to the resolution, it passed in the negative--yeas 10, nays 11, as follows: YEAS.--Messrs. Bloodworth, Brown, Burr, Butler, Gunn, Langdon, Martin, Robinson, Tattnall, and Tazewell. NAYS.--Messrs. Bingham, Bradford, Foster, Latimer, Livermore, Marshall, Potts, Read, Ross, Rutherford, and Trumbull. A message from the House of Representatives informed the Senate, that the House, having finished the business before them, are about to adjourn to the first Monday in December next. Mr. BUTLER, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES, and notify him that, unless he had any further communications to make to them, they were ready to adjourn, reported, that the PRESIDENT OF THE UNITED STATES had no further communication to make, except the nomination of certain persons to execute the laws passed the present session. After the consideration of the Executive business, the PRESIDENT adjourned the Senate to the first Monday in December next. FOURTH CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, December 7, 1795. The following members appeared, and took their seats: _From New Hampshire._--ABIEL FOSTER, NICHOLAS GILMAN, JOHN S. SHERBURNE, and JEREMIAH SMITH. _From Massachusetts._--THEOPHILUS BRADBURY, HENRY DEARBORN, DWIGHT FOSTER, NATHANIEL FREEMAN, Jr., BENJAMIN GOODHUE, GEORGE LEONARD, SAMUEL LYMAN, WILLIAM LYMAN, JOHN READ, THEODORE SEDGWICK, GEORGE THATCHER, JOSEPH B. VARNUM, and PELEG WADSWORTH. _From Rhode Island._--BENJAMIN BOURNE, and FRANCIS MALBONE. _From Connecticut._--JOSHUA COIT, CHAUNCEY GOODRICH, ROGER GRISWOLD, ZEPHANIAH SWIFT, and URIAH TRACY. _From Vermont._--ISRAEL SMITH. _From New York._--THEODORUS BAILEY, WILLIAM COOPER, EZEKIEL GILBERT, HENRY GLENN, JONATHAN N. HAVENS, EDWARD LIVINGSTON, JOHN E. VAN ALLEN, PHILIP VAN CORTLANDT, and JOHN WILLIAMS. _From New Jersey._--JONATHAN DAYTON, AARON KITCHELL, ISAAC SMITH, and MARK THOMPSON. _From Pennsylvania._--DAVID BAIRD, ALBERT GALLATIN, DANIEL HEISTER, JOHN WILKES KITTERA, SAMUEL MACLAY, FREDERICK AUGUSTUS MUHLENBERG, SAMUEL SITGREAVES, JOHN SWANWICK, and RICHARD THOMAS. _From Delaware._--JOHN PATTEN. _From Maryland._--GABRIEL CHRISTIE, GEORGE DENT, GABRIEL DUVALL, WILLIAM HINDMAN, and WILLIAM VANS MURRAY. _From Virginia._--SAMUEL J. CABELL, JOHN CLOPTON, ISAAC COLES, WILLIAM B. GILES, GEORGE HANCOCK, CARTER B. HARRISON, JOHN HEATH, GEORGE JACKSON, JAMES MADISON, ANDREW MOORE, JOSIAH PARKER, ROBERT RUTHERFORD, and ABRAHAM VENABLE. _From North Carolina._--THOMAS BLOUNT, NATHAN BRYAN, DEMPSEY BURGES, JESSE FRANKLIN, WILLIAM B. GROVE, JAMES HOLLAND, MATTHEW LOCKE, NATHANIEL MACON, and ABSALOM TATOM. _From South Carolina._--SAMUEL EARLE, ROBERT GOODLOE HARPER, and WILLIAM SMITH. _From Georgia._--ABRAHAM BALDWIN. And a quorum, consisting of a majority of the whole number being present, The House proceeded by ballot, to the choice of a SPEAKER; and, upon examining the ballots, a majority of the votes of the whole House was found in favor of JONATHAN DAYTON, one of the Representatives for the State of New Jersey. Whereupon, The said JONATHAN DAYTON was conducted to the chair, from whence he made his acknowledgments to the House, as follows: GENTLEMEN: It is with real diffidence that I undertake the execution of the duties which you have done me the honor to assign to me. In discharging them to the best of my abilities, I anticipate, on your part, a liberal and indulgent temper towards those decisions which may be required from the Chair, and flatter myself that I shall experience, upon all occasions, your co-operation and support. The House proceeded, in the same manner, to the appointment of a Clerk; and, upon examining the ballots, a majority of the votes of the whole House was found in favor of JOHN BECKLEY. The oath to support the Constitution of the United States, as prescribed by the act, entitled "An act to regulate the time and manner of administering certain oaths," was then administered by ISAAC SMITH, one of the Representatives from the State of New Jersey, to the SPEAKER, and then by Mr. SPEAKER to all the members present. The same oath, together with the oath of office prescribed by the said recited act, were also administered by Mr. SPEAKER to the Clerk. A message was received from the Senate, informing the House that a quorum of members of that body is assembled, and the VICE PRESIDENT being absent, they have proceeded to the choice of a PRESIDENT _pro tempore_, and that HENRY TAZEWELL has been duly elected. _Ordered_, That a message be sent to the Senate to inform that body that a quorum of this House is assembled, and have elected JONATHAN DAYTON their SPEAKER; and that the Clerk of this House do go with the message. Another message from the Senate was received, informing this House that they have appointed a committee on their part, to act jointly with such committee as may be appointed by this House, to wait on the PRESIDENT OF THE UNITED STATES, to inform him that a quorum of the two Houses is assembled, and ready to receive any communication he may think proper to make to them. _Ordered_, That Mr. MADISON, Mr. SEDGWICK, and Mr. SITGREAVES, be appointed a committee on the part of this House, for the purpose expressed in the message of the Senate. Petitions from sundry persons, praying to be appointed to the offices of Sergeant-at-Arms and Doorkeeper, were presented to the House and read: Whereupon, The House proceeded, by ballot, to the choice of a Sergeant-at-Arms, Doorkeeper, and Assistant Doorkeeper; and, upon examining the ballots, a majority of the votes of the whole House was found in favor of JOSEPH WHEATON, as Sergeant-at-Arms, THOMAS CLAXTON, as Doorkeeper, and THOMAS DUNN, as Assistant Doorkeeper. _Ordered_, That the said JOSEPH WHEATON, THOMAS CLAXTON, and THOMAS DUNN, do severally give their attendance accordingly. Mr. MADISON, from the joint committee appointed to wait on the PRESIDENT OF THE UNITED STATES, and notify him that a quorum of the two Houses is assembled, and ready to receive any communication he may think proper to make to them, reported that the committee had, according to order, performed that service, and that the PRESIDENT signified to them that he would make a communication to both Houses of Congress to-morrow, at 12 o'clock, in the Representatives' Chamber. TUESDAY, December 8. Several other members, to wit: from Maryland, SAMUEL SMITH; from Virginia, RICHARD BRENT; and from Georgia, JOHN MILLEDGE, appeared, produced their credentials, and took their seats in the House; the oath to support the Constitution of the United States being first administered to them by Mr. SPEAKER, according to law. _Ordered_, That a message be sent to the Senate to inform them that this House is now ready to attend them in receiving the communication from the PRESIDENT OF THE UNITED STATES, agreeably to his notification to both Houses yesterday; and that the Clerk of this House do go with the said message. The Clerk accordingly went with the said message; and, being returned, The Senate attended and took seats in the House; when, both Houses being assembled, the PRESIDENT OF THE UNITED STATES came into the Representatives' Chamber, and delivered his Speech to the two Houses. [For a copy of this Speech, see the Proceedings of the Senate.] The PRESIDENT OF THE UNITED STATES then withdrew, and the two Houses separated. _Ordered_, That the Speech of the PRESIDENT OF THE UNITED STATES to both Houses be committed to a Committee of the whole House to-morrow. WEDNESDAY, December 9. JAMES HILLHOUSE, from Connecticut, appeared, produced his credentials, was qualified, and took his seat. _Address to the President._ The House, according to the order of the day, resolved itself into a Committee of the Whole on the Speech of the PRESIDENT OF THE UNITED STATES to both Houses of Congress, Mr. MUHLENBERG in the chair; when, the Speech being read, Mr. VANS MURRAY moved the following resolution: "_Resolved_, That it is the opinion of the committee, that a respectful Address ought to be presented by the House of Representatives to the PRESIDENT OF THE UNITED STATES, in answer to his Speech to both Houses of Congress, at the commencement of this session, containing assurances that this House will take into consideration the various and important matters recommended to their attention:" Mr. SEDGWICK seconded the motion. Mr. PARKER offered an amendment, which was seconded by Mr. MACON. The substance of this amendment was, to strike out all that part of the resolution which goes before the word _assurances_; in place of which, Mr. PARKER proposed to appoint a committee, who should personally wait on the PRESIDENT, and assure him of the attention of the House, &c., and concluding as above. Mr. P. had the highest respect for the PRESIDENT, but he had always disapproved of this practice of making out Addresses in answer to these Speeches, and of the House leaving their business to go in a body to present them. Last session, the framing of this Address had cost very long debates, and produced very great irritation. Some of the most disagreeable things that happened during the session occurred in these debates. He wished unanimity and the despatch of business, and so, could not consent that any Address should be drawn up, as he preferred ending the affair at once by sending a committee with a verbal answer. Mr. MURRAY replied, that the practice of drawing up such an Address was coeval with the constitution. It was consistent with good sense; and he did not see that any argument had been employed by the gentleman who spoke last against it. It was true that the House might send a verbal answer, and it was likewise true that the PRESIDENT might have sent them his Speech by his Secretary, without coming near them at all. He had come to Congress, and Mr. M. could perceive no impropriety in Congress returning the compliment by waiting on him. The committee divided on the amendment proposed by Mr. PARKER. Eighteen members rose in support of it: so it was lost. The committee then agreed to the resolution as offered by Mr. MURRAY. They rose, and the Chairman reported progress. The resolution was agreed to by the House. The next question was, of how many members the select committee should consist that were to be employed in framing a draft of the Address. The different numbers of five and three were proposed. A division took place on the former motion, when only thirty-one gentlemen rose in its favor. The motion for a committee of three members to report an Address was of course carried. Mr. MADISON, Mr. SEDGWICK, and Mr. SITGREAVES, were appointed.[61] It was then moved that two Chaplains should be named, as usual; which was agreed to. THURSDAY, December 10. FRANCIS PRESTON, from Virginia, appeared, was qualified, and took his seat. FRIDAY, December 11. Several other members, to wit: from Vermont, DANIEL BUCK; from New Jersey, THOMAS HENDERSON; from Pennsylvania, WILLIAM FINDLAY; and from Virginia, JOHN NICHOLAS, appeared, produced their credentials, were qualified, and took their seats. MONDAY, December 14. Two other members, to wit: from Pennsylvania, THOMAS HARTLEY, and from Virginia, ANTHONY NEW, appeared, produced their credentials, and took their seats. _Address to the President._ Mr. MADISON, from the select committee appointed to draft an Address in answer to the Speech of the PRESIDENT, made a report, which was read by the Clerk. Mr. GILES moved that the usual number of copies of the Address should be printed for the use of the members. TUESDAY, December 15. _Address to the President._ The House then resolved itself into a Committee of the Whole, Mr. MUHLENBERG in the chair, on the draft of an answer to the PRESIDENT's Speech. The following sentence being under consideration: "Contemplating that probably unequalled spectacle of national happiness, which our country exhibits, to the interesting summary which you, sir, have been pleased to make, in justice to our own feelings, permit us to add the benefits which are derived from your presiding in our councils, resulting as well from the undiminished confidence of your fellow-citizens, as from your zealous and successful labors in their service." Mr. PARKER moved to strike out the words "probably unequalled," and from the word "councils," to the end. He owned that the United States owe much to the PRESIDENT for his services on most occasions; but he had sometimes erred as other men. He could not for his own part subscribe to the expressions contained in the words which he had moved to strike out; his confidence in the PRESIDENT was diminished in consequence of a late transaction. Mr. SHERBURNE called for a division of the question; that a question should first be put upon the words "probably unequalled," and afterwards upon striking out the latter part of the clause. The question was accordingly put upon the words "probably unequalled," and they were struck out, 43 to 39. Mr. MURRAY rose to make a few observations on the motion for striking out from the word "councils." As a Representative from Maryland, he said, he could not on this occasion be contented to give a silent vote. The Legislature of that State had not long since declared, that their confidence in the PRESIDENT remains undiminished; and though his single sentiment might be deemed unimportant when viewed in connection with the unanimous vote of his State, yet he was free to declare, that his confidence in the Chief Magistrate had experienced no diminution. The Legislature of Maryland, he observed, had foreseen that attempts would be made, and saw that unjustifiable attempts were actually making to diminish the confidence of the people in the PRESIDENT; they therefore resolved to give the sanction of their unanimous vote to his character, declaring that the PRESIDENT retained their confidence, and that he had merited it. Though not bound by the opinion of the Legislature of that State, he conceived it his duty not to give a silent vote on the present occasion. Mr. GILES had hoped that nothing would have been brought before the House calculated to disturb the harmony that ought to subsist, by involving the discussion of delicate points. He had as much zeal as any man for the preservation of the PRESIDENT's fame and reputation; but he could not go the length of the expressions in the clause objected to. He could not agree to it in its present shape, because the assertion in it does not correspond with the fact. After this remark, there could not, he conceived, be any inconsistency in voting against the word and still feeling a regard for the PRESIDENT. He hoped his fame and reputation might never receive a stain, but pass unimpaired to posterity. He should vote for striking out. Mr. FREEMAN wished the motion might be so modified as to involve the striking out of the word "undiminished" only. Though he for himself, he observed, might say that his confidence in the PRESIDENT was undiminished, he could not utter the same sentiment in behalf of the people at large. In his opinion the confidence of a part (a very small one perhaps) of the people was diminished; though that of a majority might be unshaken. Mr. HARPER said he had no difficulty in declaring, that his own confidence in the PRESIDENT was undiminished, but he could not go so far as to pledge himself that that of all the people was so. He never, he said, had been in the habit of worshiping the PRESIDENT. He considered him as a man, not infallible, but as a wise, honest, and faithful public servant, and he was prepared in all places and situations to declare this opinion; but he was not ready to pronounce concerning the opinion of the people of the United States. Some time hence they may become unanimous in their confidence; but he could not say that it was not diminished. He was ready to declare for himself but not for others. If called upon to declare whether a majority, whether four-fifths of the people retained their confidence in the PRESIDENT, he could declare it as his opinion in the affirmative; but the clause as it stands includes the whole, and he declared as it stood could not command his vote. He concluded by expressing his intention, when it would be in order, to introduce a modification of the clause, so as to express the undiminished confidence of the House in the PRESIDENT. Mr. PARKER, in coincidence with the wish of Mr. FREEMAN, agreed to confine his motion to striking out the word "undiminished." Mr. SEDGWICK doubted whether, after a division of the question, and a question being taken on the first part, a modification of the second part would be in order. The Chairman declared it in order. Mr. SEDGWICK viewed the present motion as even more objectionable than the first; it went directly to a denial of undiminished confidence for the PRESIDENT on the part of the House and the public. There was a time, he said, when no man could have supposed that the period would have arrived, that in the popular branch of the GOVERNMENT, the confidence of the people and their Representatives in that man could have been questioned. Having been on the committee that framed the answer, and maturely considered the subject in every part, he would mention some of the observations that occurred to his mind particularly in favor of the part now objected to. Lest in the course of them his sensibility on this subject should betray him into some warmth of expression, he begged leave to premise that he wished to wound the feelings of no man. It was proper, he said, to inquire into facts on which the expression now objected to was grounded. Is the confidence of the people in the services, and patriotism, and wisdom of the Chief Magistrate diminished? His experience led him to say no; then, in the existing circumstances, is it not right for the Representatives to make the declaration to their constituents and the world? To suppose the people, who, at the present moment, enjoyed so many blessings under the PRESIDENT's administration, could feel their confidence in him impaired, would suppose a baseness of disposition unworthy of them and of the services he has rendered. Who could review the glorious conduct of our Chief during the conflict of the Revolution, his unwearied labors for the public good, his bravery, moderation, and humanity; who could observe him in his happy retirement, covered with glory, and accompanied by the blessings of his country; then forsaking his retirement, putting at hazard the mighty mass of his reputation, and be insensible of his services? Who could review the critical situation in which he preserved our peace and prosperity during a glorious administration of six years; who could review these things and not have his heart filled with gratitude and esteem? He expressed his belief, that, a late measure of the Executive was less the object of the dislike of some, than affording the opportunity for the vent of passions and feelings deep-rooted before. As to the sense of the people of the PRESIDENT, he believed it unaltered, as to his immediate constituents, he was sure it was; and if so, it was the duty of the House to make the declaration to the world--a duty the House owed to themselves and their constituents, and the more binding from the nature of the Government the people had chosen. Though the PRESIDENT had twice been called to the PRESIDENCY by the unanimous and unsolicited voice of his fellow-citizens; though in obedience to that voice he had made a sacrifice no other man would have made; though the only reward he has received for his services has been the approbation of his country, yet, nevertheless, licentious presses had lately teemed with infamous and scandalous abuse of him. Is this, he asked, consonant to the feelings of the House, and shall they not attempt to counteract its effects in the only constitutional manner? Shall they not declare their own and their constituents' confidence undiminished in that officer of the Government? He has told the Legislature that he wishes to co-operate, to preserve unimpaired the blessings we enjoy. Does the House believe this? then is it wrong to express their confidence? He believed, he said, that the efforts made to destroy the character of this first of men, instead of producing the mischief intended, would effect the contrary; and he also expressed his belief that the tide of his popularity at the present moment flowed with unusual strength. It has been intimated, he observed, that sanctioning the vote of confidence, contemplated in the clause of the Address under consideration, would implicate an approbation of a late measure of the Executive, and would preclude the possibility of a free opinion when that measure might come under the consideration of the House. He declared, upon his honor, that he had no intention that the vote now contemplated should have that effect. He did not conceive, that the vote of undiminished confidence, which he now pressed, involved an approbation of all the measures of the Executive; it did not exclude the idea of fallibility; for what man is infallible? It is only implied, according to his conception, an approbation of the general tenor of the conduct of the Executive. When the House express their confidence in a public officer, they cannot mean that they believe him infallible, but only that his character, grounded on his general conduct, receives their approbation. If, when the Chief Magistrate is attacked in the manner the PRESIDENT has been attacked, he is left to be overwhelmed with unmerited abuse; what man with talents to be useful, a reputation to be injured, or feelings to be wounded--what man will hazard all to serve an ungrateful country? It will render the station of Chief Magistrate sought only by mercenaries. If confidence is denied to the Executive, it will only create vacancies in the high offices of Government to be filled by those harpies who prey upon the vitals of the State. Another consideration, he said, should have an influence on this occasion. The fame of the Chief Magistrate's character has filled the whole world; the Americans are particularly distinguished as a people for their uniform attachment towards him. If, at this time of day, they indirectly declare their want of confidence in that man, they will justify the malignant predictions which have been uttered against our system of Government. These considerations, he said, had weighed on his mind. If the motion for striking out prevailed, he declared it would distress him beyond any circumstance that had occurred to him during his public life, especially at this period, and under the present circumstances of affairs. He should consider the prevalence of this motion as tantamount to a declaration, that the House and their constituents did not feel their confidence in the PRESIDENT unimpaired. Mr. LIVINGSTON lamented the situation which the drafted Address reduced the House to; but he could not give his assent to it as it stood; he should vote for striking out the word "undiminished," if a question on it should be urged. He did not conceive himself called to a seat in the House to express opinions, much less the opinions of others, but to make laws. He felt so much the delicacy of the situation which the wording of the Address had placed the House in, that he wished the dilemma of a vote might be avoided. The gentleman last up also lamented the situation, and justly observed, that striking out the word was tantamount to a declaration that the confidence reposed in the PRESIDENT was diminished. But he begged to remind him that it was the framers of the Address, and he was one of them, that involved the House in this disagreeable situation. He declared himself so young in the parliamentary proceedings, as not exactly to know how to avoid a question on the present motion. He declared he was not prepared to say what the opinion of his constituents concerning the PRESIDENT was. The confidence of many of them he knew was shaken; that of others was increased. He moved, if in order, that the committee should rise, and the Address be recommitted. This was carried, and Messrs. FREEMAN and BALDWIN added to the committee. Adjourned. WEDNESDAY, December 16. THOMAS CLAIBORNE, from Virginia, appeared, produced his credentials, was qualified, and took his seat. _Address to the President._ Mr. MADISON, from the committee to whom had been recommitted the draft of the Address in answer to the PRESIDENT's Speech, brought in a report. The clause now added consisted of a modification of the clause objected to yesterday. On motion, the House went into a Committee of the Whole, Mr. MUHLENBERG in the chair. The amendment was unanimously agreed to. Mr. GILES then moved an amendment in the third line of the last paragraph. It was thus: for "the several interesting subjects which you recommended to our consideration will receive every degree of _it_," read of _attention_. The committee then rose, and the House agreed to the report. It was then moved and agreed to, that the SPEAKER, attended by the House, do present the address, as amended, to the PRESIDENT, and that a committee should be appointed to wait on the PRESIDENT, to know where and when he will be ready to receive the Address of the House. The same gentlemen, viz: Mr. MADISON, Mr. SEDGWICK, and Mr. SITGREAVES, who had been first appointed to draft the Address, were named for waiting on the PRESIDENT. The committee that had been appointed to wait on the PRESIDENT, returned with notice that he would be ready to receive their Address, at his own house to-morrow at 12 o'clock. The House then adjourned. THURSDAY, December 17. WADE HAMPTON, from South Carolina, and JOHN HATHORN, from New York, appeared, produced their credentials, were qualified, and took their seats. _Address to the President._ At twelve o'clock, the SPEAKER, attended by the House, waited upon the PRESIDENT OF THE UNITED STATES, and delivered to him the following Address, in answer to his Speech to both Houses at the opening of the session: SIR: As the Representatives of the people of the United States, we cannot but participate in the strongest sensibility to every blessing which they enjoy, and cheerfully join with you in profound gratitude to the Author of all Good for the numerous and extraordinary blessings which He has conferred on our favored country. A final and formal termination of the distressing war which has ravaged our North-western frontier, will be an event which must afford satisfaction proportioned to the anxiety with which it has long been sought; and in the adjustment of the terms, we perceive the true policy of making them satisfactory to the Indians as well as to the United States, as the best basis of a durable tranquillity. The disposition of such of the Southern tribes as had also heretofore annoyed our frontier, is another prospect in our situation so important to the interest and happiness of the United States, that it is much to be lamented that any clouds should be thrown over it, more especially by excesses on the part of our own citizens. While our population is advancing with a celerity which exceeds the most sanguine calculations--while every part of the United States displays indications of rapid and various improvement--while we are in the enjoyment of protection and security, by mild and wholesome laws, administered by Governments founded on the genuine principles of rational liberty, a secure foundation will be laid for accelerating, maturing, and establishing the prosperity of our country, if by treaty and amicable negotiation, all those causes of external discord which heretofore menaced our tranquillity shall be extinguished, on terms compatible with our national rights and honor, with our constitution and great commercial interests. Among the various circumstances in our internal situation, none can be viewed with more satisfaction and exultation, than that the late scene of disorder and insurrection has been completely restored to the enjoyment of order and repose. Such a triumph of reason and of law is worthy of the free Government under which it happened, and was justly to be hoped from the enlightened and patriotic spirit which pervades and actuates the people of the United States. In contemplating that spectacle of national happiness which our country exhibits, and of which you, sir, have been pleased to make an interesting summary, permit us to acknowledge and declare the very great share which your zealous and faithful services have contributed to it, and to express the affectionate attachment which we feel for your character. The several interesting subjects which you recommend to our consideration, will receive every degree of attention which is due to them. And whilst we feel the obligation of temperance and mutual indulgence in all our discussions, we trust and pray that the result to the happiness and welfare of our country may correspond with the pure affection we bear to it. To the foregoing Address, the PRESIDENT was pleased to make the following reply: GENTLEMEN: Coming as you do from all parts of the United States, I receive great satisfaction from the concurrence of your testimony in the justness of the interesting summary of our national happiness, which, as the result of my inquiries, I presented to your view. The sentiments we have mutually expressed of profound gratitude to the source of these numerous blessings--the Author of all Good--are pledges of our obligations to unite our sincere and zealous endeavors, as the instruments of Divine Providence, to preserve and perpetuate them. Accept, gentlemen, my thanks for your declaration, that to my agency you ascribe the enjoyment of a great share of these benefits. So far as my services contribute to the happiness of my country, the acknowledgment of my fellow-citizens, and their affectionate attachment, will ever prove an abundant reward. G. WASHINGTON. TUESDAY, December 22. NATHANIEL SMITH, from Connecticut, appeared, was qualified, and took his seat in the House. THURSDAY, December 24. CHRISTOPHER GREENUP, from Kentucky, appeared, was qualified, and took his seat. MONDAY, December 28. ANDREW GREGG, from Pennsylvania, appeared, produced his credentials, was qualified, and took his seat. _Robert Randall--Case of Bribery._ Mr. SMITH, of South Carolina, requested the attention of the House, for a moment, to a subject of a very delicate nature. He understood that a memorial was, this morning, to be presented from some individuals, applying for a grant of a large tract of Western territory, and as the House had referred all such applications to the committee for bringing in the Land Office Bill, of which he was Chairman; and, as it was probable that the memorial, about to be presented, would be disposed of in the same manner, he conceived it a duty incumbent upon him to disclose to the House, at this time, some circumstances which had come to his knowledge. Mr. SMITH then said that, on Tuesday evening last, a person of the name of Randall called on him, requesting an hour of confidential conversation. In the interview which took place, Randall made a communication to the following effect: He intended to present a memorial, on the Monday following, to Congress, for a grant of all the Western lands lying between Lakes Michigan, Erie, and Huron, to the amount of about twenty millions of acres. He, and his associates, some of whom were Canada merchants, who had great influence over the Indians, proposed to form a company, and to undertake the extinction of the Indian title, provided Congress would cede to them the fee-simple of the land. The property would be divided into forty shares, twenty-four of which should be reserved for such members of Congress as might favor the scheme, and might be inclined to come into it, after the adjournment of Congress, on the same terms as the original associates. Randall himself had the disposal of twelve shares, for members from the Southern States, and a colleague of his, a like number for those of the Eastern States. A certain number of shares were to be the property of those Canada merchants, who had an unbounded influence over the Indians occupying those lands, and who would, if this plan succeeded, pacify those Indians, who were the most hostile to the United States; that Gen. Wayne's treaty was a mere delusion, and that, without the co-operation of those influential persons, the United States would never have peace in that quarter. Mr. SMITH said that he communicated this overture, the next morning, to Mr. MURRAY, one of the members from Maryland, requesting his advice how to proceed on so delicate an occasion; that Mr. MURRAY recommended a disclosure to Mr. HENRY, of the Senate, and that, on a consultation with those gentlemen, it was resolved that it was Mr. SMITH's duty to make an immediate communication of the matter to the PRESIDENT, which was accordingly done. Mr. MURRAY rose next. He had received an application of the same nature, but having already heard of the proposal, "I was," said he, "in a state of preparation, and my virtue had not such a shock to encounter, as that of the gentleman last up." Mr. M. corroborated what Mr. SMITH had said as to the communication of this affair to himself. He added, that he had advised Mr. SMITH to give Randall another meeting, for the purpose of developing his schemes and expectations more fully. Mr. M. said that Mr. SMITH informed him on Wednesday morning; next day, in the morning, he informed Mr. HENRY, of the Senate. Mr. SMITH, on that day, informed the PRESIDENT. On that day (Thursday,) Mr. RANDALL was introduced to him, and asked an interview at his lodging; he gave him an appointment, at five in the afternoon. Mr. HENRY and he were together when Randall came in. Randall talked about the policy of extinguishing the Indian title to the Peninsula formed by Lakes Erie, Huron, and Michigan, containing about eighteen or twenty millions of acres of very good land; and talked in terms that he might have employed from a pulpit. He did not make any corrupt overtures, till Mr. M. had carried him into his own apartment. There Randall opened his proposals, as had been before mentioned by Mr. SMITH, observing that if Congress would sell this land to him and his company, they intended to divide it into forty or forty-one shares. Twenty-four shares were to be appropriated to such members of Congress as chose to support the memorial, which would be presented on Monday. The members were to have their shares upon the same terms on which his company should obtain the land. The Company would give five hundred thousand, or perhaps a million of dollars: but on Mr. M.'s apparent acquiescence in his views, he said that the shares would be given to the members who advocated the measure, if they pleased to accept them, after they returned to their homes. Mr. M. started a difficulty about the embarrassment of land speculations, for which he, personally, had no genius; and then Randall instantly turned out the cat, and told him that if _he_ did not choose the share of land, he should have cash in hand for his share. Mr. SMITH and Mr. MURRAY had resolved to disclose this to the House, lest some innocent member might offer a memorial and become liable to suspicion. Randall had hinted that larger proportions would be assigned to the more active members, and lesser ones for the small fish. The SPEAKER then rose, and expressed a wish that some gentleman would move for an order to apprehend Randall. Upon this, Mr. SMITH again rose, and said that a warrant to this effect had yesterday been issued by the PRESIDENT, and to support which Mr. S. had made oath before a magistrate to the particulars above mentioned. He hoped that by this time the person was taken. Mr. GILES next rose, and observed that an application from the same Mr. Randall had been made to himself. Besides a repetition of some particulars already stated, he told Mr. G. that he had already secured thirty or forty members of this House, but he wanted to secure three other members, if Mr. G. recollected right. He added, that he had already secured a majority of the Senate. When this proposal was first made, which Mr. G. thought was about ten days ago, a member from New-York (Mr. LIVINGSTON) was present. Randall had even gone so far as to say, that a written agreement was drawn out, and subscribed by a number of Eastern members, and he wished Mr. G. to extend another obligation of the same kind for the Southern members; the purport of which paper was understood to be, that the members who voted in support of the disposal of the lands, were to be secured in a stipulated share of them, without having their names mentioned in the deed. Mr. G. was solicitous to learn the names of the members who had already entered into the negotiation, but Randall assured him, that, from motives of delicacy, he durst not communicate any of the names. Mr. G. then desired a sight of the agreement, that he might be able to comprehend its meaning, before he should attempt to draw any similar paper. The man called a second time, and, as Mr. G. conceived, about four days ago, but had never produced the deed or any draft of it. Mr. G. had already communicated the proposal to several members, and, in particular, to the SPEAKER. The SPEAKER (Mr. DAYTON) mentioned, that Mr. GILES had, some time ago, informed him of the proposal. He replied, that if an opportunity offered, he would take care to select a committee consisting of members sure to detect the guilty, if any such could exist; adding that he expected the House to believe that he would not have used such words, but on so extraordinary an occasion. Mr. CHRISTIE said, that he was the person who had introduced Randall to Mr. SMITH and Mr. MURRAY. He had long known him, as a respectable man. Randall had mentioned to Mr. C. in general, that it was a landed speculation, and hinted that he, Mr. C., might accept of a share. In reply, Mr. C. had assured him that he could not possibly have a concern in any such transaction. Randall had not, to Mr. C., insinuated that any undue advantage would accrue to members supporting the intended purchase. Mr. BUCK, a member from Vermont, mentioned that a person of the name of Whitney, who appears to have been an associate with Randall, had called upon him in the country with a proposal of this kind. Mr. MADISON said, that the person referred to had also called upon him, and told him of his having waited upon many members, and, among the rest, upon the SPEAKER. Mr. MADISON said, that the conversation was rather short, owing, perhaps, to the coldness with which the advances of Mr. Randall were received. Mr. MADISON had already learned, through his friend from Virginia (Mr. GILES,) the state in which the business was. He did not wish to alarm the person by too much abruptness, and, at the same time, he did not wish to give himself any unnecessary trouble about it, as he understood that it would be properly managed without his interference. TUESDAY, December 29. _Case of Randall and Whitney._ A return was made by Mr. JOSEPH WHEATON, Sergeant-at-Arms to the House of Representatives. Mr. WHEATON stated that, agreeably to the order from the SPEAKER, he had taken into custody the bodies of Robert Randall and Charles Whitney, and kept them at the disposal of the House. Mr. W. SMITH moved, that a Committee of Privileges, consisting of seven members, should be appointed, and instructed to consider and report with respect to the proper mode of proceeding in this case as to Robert Randall, and that the said committee shall have leave to sit immediately. It was likewise moved that the name of Charles Whitney should be comprehended in the resolution, because he also was taken into custody. The resolution, as amended, was agreed to. Mr. BALDWIN, Mr. W. SMITH, Mr. MURRAY, Mr. COIT, Mr. GILES, Mr. LIVINGSTON, and Mr. GOODHUE, were named for a committee. Randall was now brought in, by Mr. WHEATON, Sergeant-at-Arms, and the City Marshal. That part of the journals which refers to his conduct was read to him. The SPEAKER then interrogated the prisoner, whether these charges were true or false? Randall replied that he was not prepared to answer. He hoped that time would be given him. The SPEAKER asked what time he wanted? He could not positively tell; perhaps till the day after to-morrow. Mr. W. SMITH was disposed to give him the time required. Mr. BLOUNT said, that he felt for his own dignity as a member of the House, and for the dignity of the House. To suffer the prisoner to go away from the bar till he had said guilty, or not guilty, when thirty or forty members are positively charged with such conduct, and we suffer the culprit to withdraw, without obliging him to explain, will excite public suspicion that guilt is here. Randall was then ordered to withdraw, till the discussion should be over. Mr. RUTHERFORD was for making him say yes or no, directly, as to the guilt. If he wants to have time for pleading any thing in mitigation of his punishment, that is a quite different affair. But the honor of the House was concerned in making him give an immediate answer to the queries now put. Mr. HILLHOUSE was for bringing Randall forward directly. He ought not to be allowed time to think of an answer. Mr. HARPER felt as much as any man for the dignity of the House, but this would not induce him to proceed in a hurry. Mr. H. enlarged on the danger of indulging passion on this subject. It would be wrong to force the prisoner to answer unprepared. What if he refuses to answer at all? Confession amounts, in this case, to conviction. He was for granting indulgence. Mr. VENABLE felt as much as any man for the dignity of the House. At the same time, he felt himself above suspicion, and the House above it. He would not wish to trample on the rights of an individual. He saw no danger that could arise to the House from a short delay. He referred to what Mr. HARPER had said about the hardship of making any man convict himself. Mr. CLAIBORNE was also against hurrying the prisoner. He recommended that coolness and moderation should distinguish the proceedings of the House. The question was then put, whether the prisoner should be obliged to answer immediately. Ayes 42, noes 48. It was then moved, by Mr. W. SMITH, that he should be allowed till twelve o'clock, to-morrow. Mr. BLOUNT proposed the yeas and nays on the latter question. A member observed that they should rather have been put on the one immediately preceding. The motion was supported only by four or five members. A fifth part of the House are requisite for calling the yeas and nays. Mr. BLOUNT then laid on the table a long resolution. It was, in substance, that before Randall was recommitted, he should be interrogated as to who were the thirty or forty members that had been gained to the scheme. Mr. HARPER thought it extraordinary to bring a culprit before the House for contempt of it, and then encourage him to criminate members. He should ever protest against persons being brought to the bar for that purpose. He therefore moved to strike out from the resolution proposed by Mr. BLOUNT, the words: "And if you did, who are the members whom you considered as so secured; and what were your reasons for thinking them so secured?" This was the last clause of an interrogatory which Mr. BLOUNT proposed putting to Randall. Mr. BLOUNT declared that he had never meant bringing an accuser to the bar, or propounding a question that should bring forth an accusation. Mr. HARPER replied. Mr. BLOUNT then modified his resolution, by striking out the exceptionable words; to which Mr. HARPER then agreed. Mr. MURRAY called upon gentlemen by their sensibility to personal dignity, and the character of the House, to arrest the motion. Its tendency certainly was to place the honor of the House, or of a very great part of it, in the power of a man of whose profligacy of principle there could now be no doubt. Will you, he observed, permit, nay, invite him, whom you arraign at the bar of this House, to be a public accuser? Will you adopt a charge against him, which is in its nature an imputation that however lightly and wickedly made, will implicate perhaps innocent men? These men, to rescue their own reputations, will be obliged to risk their characters, on the weight of their veracity, by denying this man's charge in the face of a world but too prone to suspect. By this motion, Randall's assertion to the gentleman from Virginia, (Mr. GILES,) the only member who has mentioned it, is to be alleged against Randall as an offence. That Randall said to the gentleman that there were thirty or forty members secured, he had no doubt; but he believed the fact to be that Randall was both deceived himself and attempted to deceive the gentleman. Why, said Mr. M., the fellow told me that those thirty members were secured. Mr. M. had not thought proper to state that circumstance, because he did not so much consider it as a fact material to the detection of Randall's guilt, as it was one which, if mentioned, might possibly afford to malice an opportunity of affixing a stigma to any thirty or forty names at which personal enmity might point. No public good could result from such a disclosure; for the assertion of such a man as Randall could not, among men of honor, be deemed a sufficient ground of suspicion; and yet the malice of the world, or the rancor of personal enemies, might attach suspicion and infamy to almost the whole House, from the indefiniteness of the charge. When Randall informed him, on Thursday night, that there were thirty members who would support his measures, he had felt in the very conduct which he then was himself pursuing to detect Randall, to arrest his scheme, a principle of candor towards others, which taught him that other gentlemen to whom Randall had communicated his scheme confidentially, were probably determined as honestly as himself to crush the infamous plot against the honor of the House. He knew that he who would be wicked enough to attempt seduction, might be weak enough to use this intelligence artfully, for the purpose of leading him the more readily to accept terms of infamy; because the object was painted as easily attainable, and that Randall might wish to diminish all qualms, by exhibiting a pretended group of accomplices whose company would at least diminish the appearance of singularity. I entertained, said Mr. M., no suspicion of any man--I knew Randall to be a corrupt man from his offers to myself--I therefore placed all his intelligence to the score of flimsy art: I knew that such a man was not to be fully believed, where his interest was to magnify his success. I drew favorable auspices with respect to the corps to which I belong, from another piece of intelligence of his, which was, that he communicated to some members, one of whom he had named, and whom I knew to be a man of honor, in what he called the _general way_. This general way was a display of the sounder part of his scheme merely, and not the corrupt; consisting in developing the advantages which would result to the Union in the disposal of their lands, provided the harmony of the Indians could be secured. In this view of his plan he gave the subject an attitude far from unimposing; and I conceived that, as in proportion to the numbers engaged confidentially he must know that the hazard of detection increased, he would not communicate the corrupt view as long as he found the more honest part of the policy might appear to strike any gentleman as a measure useful to his country; I therefore did not believe Randall, in the sense he evidently intended; therefore, sir, I did not feel myself at liberty to mention the assertion which I conceived to be unavailing as a circumstance necessary to the example I wished to make, but which, if communicated, I thought might cast a stain, by the mystery that enveloped it, upon a body whose character ought to be held sacred to the confidence of the country. My duty was to bring Randall's attempt to corrupt unequivocally into light, not by repeating all the arts which he excited to corrupt; nor by exhibiting them in a way that might wound the feelings of men of honor, who, if charged even personally by Randall, would have no refuge from odium but in their characters and counter-assertion: this, though always conclusive with those who personally know them, is not a protection to minds of sensibility against the stings of calumny. The voice of fame is not composed from the voice of men of honor. Mr. HILLHOUSE was convinced that there was not a gentleman in the House, whose character rested on so slender a foundation, as to be affected by any thing that this man could say. He felt no anxiety for the reputation of the House, for he knew that it was not in the smallest danger. The resolution went merely to make Randall confess that he had said so and so. It implied nothing to affect members. A man covered with infamy making such charges could not expect credit, or obtain it from any body. Mr. HILLHOUSE was, for these reasons, in favor of the resolution for interrogating Randall. The resolution was now read, as follows: "_Resolved_, That it be made a charge against the said Robert Randall, that he declared to a member of this House, that a number consisting of not less than thirty members of this House had engaged to support his memorial." Randall was then brought to the bar. The resolution was read to him, and he was informed that he must answer it to-morrow, at 12 o'clock. A motion for adjourning was then made. Ayes, 26; so it was lost. It was next moved and agreed, that Whitney should be brought to the bar. The SPEAKER then said, Is this the prisoner? Answered, Yes. What is your name? Charles Whitney. What is your usual place of residence? Vermont. What are you? I was bred to the farming business. Do you know one Robert Randall? Yes. The Clerk will read to you the charge that has occasioned your being brought here. The charge, as stated in the journal of the House, was then read to the prisoner. He was next interrogated by the SPEAKER, as follows: Are you guilty, or not guilty? Not guilty. Are you ready to speak in your defence? I am ready to tell every thing. Are you prepared to do so just now? Yes. Whitney then stated that he was connected with Randall in a plan for the purchase of eighteen or twenty millions of acres of land, lying between the Lakes Erie, Huron, and Michigan. He had come to town on the design of presenting a petition to Congress, but had no knowledge of any improper kind of applications. Randall had several times called upon him at his lodgings, at the Green Tree, in North Fourth street. He considered the scheme to be of probable advantage, and a handsome thing to the United States as well as to the prisoner himself, who repeatedly observed that he would not have engaged in it, but with a view partly to his own interest. He had wished to engage influential characters in the business. He was then asked what associates he had. He answered, Colonel Pepune and Mr. Jones, of the State of Massachusetts; and Mr. Ebenezer Allen, of Vermont. He also, upon a query from the SPEAKER, mentioned the name of another person, which was not distinctly heard. He was asked if the partners meant to divide the land into forty shares. He answered forty-one; but this was only in speculation. They had only a rough idea of the extent of the land, which was inhabited by the Wyandots, and was of a very good soil. The land was to be divided among the proprietors. The prisoner knew, in general, from Randall, that he called on Mr. SMITH, and other members; but was not privy to, nor suspected any unbecoming overtures. He was then asked the names of the associates at Detroit. He mentioned Mr. Erskine, Mr. Robertson, Mr. Innes, Mr. Pattison, and Mr. Erskine, junior. He said that some of them were Indian traders, to a considerable extent. He had called at Mr. BUCK's, of Vermont, (a member of the House,) as he was riding by his house. He knew him to be a gentleman of character whose name would add credit to the business. He had told him that there were several other persons intending to be concerned, and that, if it was consistent with his situation as a member of Congress, he would be glad to have him engaged, but at the same time carefully noticed that this proposal was conditionally made, and only if it was proper. He was asked what Mr. Erskine was. He is called Judge Erskine, but whether he is now a judge, or only was one in some other part of the country, at a former period, the prisoner cannot tell. You say that you came to Philadelphia about a month ago. Why were you so long in presenting your petition? He had a bad cold, and had been sick, and wanted to make a personal explanation to the members before bringing the affair before the House. Have you got any new associates in this city? None. Mr. LIVINGSTON then proposed a question, Whether any of the shares had been left unappropriated by your associates and you? Answer: It was at his own option to dispose of shares as he pleased. He was asked if he could produce any written agreement between himself and his associates. He believed that he could, and that it would do him no harm to do so. It was at the Green Tree. But, as a matter of candor, he requested time to consider whether the production of it could hurt him or not. This ended the examination. Mr. W. SMITH then made a motion, consisting of three points, that Whitney should be ordered to re-appear at the bar, at twelve o'clock, to-morrow; that he should be ordered to produce the bond; and that, till to-morrow, he should be remanded to the custody of the City Marshal. It was likewise recommended that, till to-morrow, the two prisoners be kept in separate apartments. Mr. GOODHUE requested that Whitney might be ordered to withdraw; which was done. He then related that the prisoner had made an application to him at different times. Mr. GOODHUE told him that he knew very little of the Western country; he had always lived on the sea-coast, and land jobbing was quite out of his line. Whitney did not make any corrupt proposals to him. He believed that it was because he was very averse to wasting time in speaking at all on the matter. Mr. SEDGWICK said that, as no direct charge of corruption had been made against Whitney, he apprehended it would be improper to detain him as a prisoner. It might be considered as a wanton act of arbitrary power. Mr. BUCK then rose, and said that he had not yesterday told the whole of what passed between him and Whitney. Mr. BUCK had received offers plain enough to be understood. He might either have land, or money in lieu of it. Mr. SEDGWICK said, that he had now no opposition to the resolutions; which were carried. WEDNESDAY, December 30. JOHN PAGE, from Virginia, appeared, was qualified, and took his seat. _Case of Randall and Whitney._ Mr. W. SMITH moved an amendment of the journal to this effect, that the said Charles Whitney had made overtures to Mr. BUCK, to this purpose, that he should have a share in the lands to be purchased, or in money. Mr. NICHOLAS objected to the motion. The reading of the journal was called for. It was read. Mr. SEDGWICK said, that the original charge against the man was complete and full. He thought the amendment unnecessary. A petition was then presented from Randall requesting that he might be indulged with a reasonable time to make his defence, and with counsel. Mr. W. SMITH was very ready to allow the prisoner counsel for his defence, but, in so doing, he wished it to be understood, not as a matter of right but of favor. He was apprehensive that gentlemen in proceeding from one step to another, would at last reason away the privileges of the House altogether. His friend from Massachusetts (Mr. SEDGWICK) had quoted the clause of the constitution which gave a right to have counsel in all trials for crimes; but it did not apply to this case, any more than the clause which immediately followed it, declaring that all trials for crimes should be by a jury of the vicinage, and after presentment by a grand jury. The present inquiry was of a special and peculiar nature, resulting from the rights and privileges which belonged to every Legislative institution, and without which such institution could not exist. As every jurisdiction had certain powers necessary for its preservation, so the Legislature possessed certain privileges incident to its nature, and essential for its very existence. This is called in England the parliamentary law; and as from that law are derived the usages and proceedings of the several State Legislatures, so will the proceedings of this House be generally guided by the long-established usages of the State Legislatures. There would be a manifest absurdity in conforming the proceedings in this case to the ordinary proceedings at law in jury trials, for the House, instead of being able to protect itself, would be altogether dependent on the other branches of the Government, and in every case of aggression be obliged to send the offenders to the civil magistrate. If there was any weight in such reasoning as had been heard, then the House would have to tread back all the unconstitutional steps they had been taking, and to discharge, without delay, both the prisoners; for the arrest by the Sergeant-at-Arms, under the SPEAKER's warrant, was only justifiable on the ground he had mentioned, namely, the inherent and indispensable power of self-preservation. That the House possessed power to arrest had not been denied; but the power of commitment was incident to that of arrest, and if it possessed both these high powers, it must of consequence possess the necessary incident of trial or inquiry, in regulating which the House was only to be governed by its own wisdom and discretion. On this occasion Mr. S. said he felt, as he trusted every member did, a proper respect for the rights of individuals brought to the bar, as well as for those of the House, and he hoped that their conduct would be marked with discretion and temper; but, willing as he was to grant the prayer of the petitioner, he could not suffer the argument which had been relied on, to pass unanswered. This was the first instance, since the organization of this Government, in which it had been found necessary to resort to this high prerogative; it was right, therefore, that the principles on which it was founded should be well understood, and that the privileges of the House should stand unimpaired. Mr. SEDGWICK moved that the prayer of the petition should be granted, and that Randall be allowed till to-morrow, to be heard at the bar. The petition was again read. Mr. CHRISTIE had known Randall for many years, and had never heard of any thing against him before. He had lately been at Detroit, and Mr. C. believed that he had been injured by keeping bad company. He was not the first man in the country who had been corrupted by British influence and British company. He moved that Randall should be allowed till to-morrow at twelve o'clock. This was negatived. The SPEAKER then said, that, if agreeable to the House, he would send for Randall, and inquire what time he wanted. This was done; Randall came in, and asked till Saturday, but as the House does not sit on Saturday, Friday was appointed. The bond or agreement between the intended purchasers of the land was then read. It was dated at Detroit, the 26th of September last. Allen, Whitney, and Randall, were to have the disposal of 36 shares out of 41. THURSDAY, December 31. RICHARD WINN, from South Carolina, appeared, was qualified, and took his seat. _Case of Randall and Whitney._ Mr. BALDWIN, the chairman of the Committee of Privileges, reported, in part, on the subject of the further proceedings to be had in the case of R. Randall and C. Whitney, in substance as follows: 1. That a further hearing of R. Randall should be held at the bar; that the information given by members against the said Randall be reduced to writing, signed by the informants respectively, and entered at large on the journals; that the said information should be read to the prisoner, and he be asked by the SPEAKER what he had to say in his defence. If the prisoner should desire to produce any parole evidence to exculpate himself, the same shall be heard at the bar, and the Judge of the District of Pennsylvania be requested to attend to administer an oath or affirmation to the witnesses on the part of the prisoner; that the SPEAKER shall put all questions to the witnesses. When any debate should arise, that the prisoner and his counsel be directed to withdraw; and, when he has concluded his defence and withdrawn, that the sense of the House be taken on the guilt or innocence of the prisoners, respectively. Mr. MADISON was of opinion that no citizen can be punished without the solemnity of an oath to the fact. Of consequence, it is needful to the information of members, if the punishment of a fellow-citizen is implicated. Perhaps it may be urged that members, having taken an oath to support the constitution, this supersedes the necessity of an oath in the present case. Mr. GALLATIN thought it reasonable that members should be liable to be questioned upon oath. That there was no precedent for it, had little weight. There are many absurdities in the law of nations which gentlemen would not wish to introduce here. Mr. SWIFT was against the members being subject to this regulation. The case was quite novel to him. But this was, at first view, his way of thinking. Suppose that some person in the gallery were to commit an insult on the House, before the whole members, would it be necessary that they should all swear to the offence before proceeding to punish it? This Mr. S. regarded as a parallel case. Mr. THATCHER made a distinction when an offence had been committed in presence of the whole House, and when committed out of their view. In the former case, there could not be any use for evidence being sworn, because the whole House had the testimony of their senses. It was different when the circumstances occurred in another place; and Mr. T. was convinced that the charge ought to be sworn to. The passage under amendment was in these words: "That it should be reduced to writing;" and the dispute was about adding the words, "and sworn to." Mr. T., though for examining the members on oath as to the charge against Randall, was opposed to the amendment as useless, because the members must, in his opinion, be sworn when Randall is brought to the bar. The mere declaration of a prosecutor, not under oath, and of a defendant in the same situation, is equally exceptionable. A phrase had been repeatedly used which Mr. T. did not understand. It was said that a member was entitled "to stand up in his place" and give information so and so. With the meaning of this expression Mr. T. was unacquainted, nor did he know any law which authorized the imprisonment of a fellow-citizen on a mere charge unsupported by oath. He did not see the use of the amendment, but he was clearly satisfied that members ought to be examined and sworn touching their accusations, as well as any other persons. Mr. NICHOLAS was not, in this instance, for departing from the principles of common law. Instead of supporting the dignity of the House, about which so much has been spoken, he was afraid that, by arrogating too much on the side of privilege, they might lessen their dignity. He declared, upon his honor, that he thought the gentlemen concerned should, for their own sakes, insist on being cross-examined by the prisoner and his counsel. To be cross-examined implies no reflection on a witness. The imperfection of human nature requires such a precaution, and were Mr. N. a party, he would insist on being cross-examined. The proposed amendment would narrow the business too much. It would be better to lay it aside, and let the members be, as above proposed, subject to cross-examination from the prisoner. Mr. MADISON said, that when Randall came to the bar he would possibly save all this trouble, by confessing his guilt, and casting himself on the mercy of the House. He mentioned an anecdote of a judge who had been publicly insulted. He informed his brethren of the bench, and, on his complaint, the offender was apprehended. When he was brought before the court the oath was administered to the judge. Mr. M. related this story to show the propriety of every accusation being sworn to, whatever may be the rank or situation of the accuser. MONDAY, January 4. _Presentation of the Flag of France._ The SPEAKER informed the House, that a Message was ready to be delivered to the House, of a nature calculated to give the most pleasing satisfaction to every American breast. He suggested to the House, and the citizens in the galleries, the propriety of not suffering the fervor of enthusiasm to infringe on the dignity of the Representative Councils of the United States. He recommended that a respectful silence should be observed, as most compatible with the true dignity of the House, and the honor of the magnanimous Republic that was the subject of the Message. The PRESIDENT's Secretary was then introduced, with an American officer bearing the Standard of the French Republic,[62] sent by the Committee of Public Safety, Organ of the National Convention, as a token of friendship to the United States. The Secretary presented a Message in writing from the PRESIDENT, with sundry papers accompanying it, to the SPEAKER, by whom they were read as follows: _Gentlemen of the Senate, and of the House of Representatives:_ A letter from the Minister Plenipotentiary of the French Republic, received on the 22d of the last month, covered an Address, dated the 21st of October, 1794, from the Committee of Public Safety to the Representatives of the United States in Congress; and also informed me that he was instructed by the committee to present to the United States the Colors of France. I therefore proposed to receive them last Friday, the first day of the new year, a day of general joy and congratulation. On that day the Minister of the French Republic delivered the Colors, with an Address, to which I returned an answer. By the latter, the House will see that I have informed the Minister that the Colors will be deposited with the archives of the United States. But it seemed to me proper previously to exhibit to the two Houses of Congress these evidences of the continued friendship of the French Republic, together with the sentiments expressed by me on the occasion in behalf of the United States. They are herewith communicated. G. WASHINGTON. UNITED STATES, _January 4, 1796_. [TRANSLATION.] The Representatives of the French People, composing the Committee of Public Safety of the National Convention, charged by the laws of the 7th Fructidor, with the direction of Foreign Relations, to the Representatives of the United States of America in Congress assembled: _Citizens Representatives:_ The connections which nature, reciprocal events, and a happy concurrence of circumstances, have formed between two free nations, cannot but be indissoluble. You have strengthened those sacred ties by the declarations, which the Minister Plenipotentiary of the United States has made, in your name, to the National Convention, and to the French people. They have been received with rapture by a nation who know how to appreciate every testimony which the United States have given to them of their affection. The Colors of both nations, united in the centre of the National Convention, will be an everlasting evidence of the part which the United States have taken in the success of the French Republic. You were the first defenders of the rights of man in another hemisphere. Strengthened by your example, and endowed with an invincible energy, the French people have vanquished that tyranny, which, during so many centuries of ignorance, superstition, and baseness, had enchained a generous nation. Soon did the people of the United States perceive that every victory of ours strengthened their independence and happiness. They were deeply affected at our momentary misfortunes, occasioned by treasons purchased by English gold. They have celebrated with rapture the successes of our brave armies. None of these sympathetic emotions have escaped the sensibility of the French nation. They have all served to cement the most intimate and solid union that has ever existed between two nations. The citizen ADET, who will reside near your Government in quality of Minister Plenipotentiary of the French Republic, is specially instructed to tighten these bands of fraternity and mutual benevolence. We hope that he may fulfil this principal object of his mission, by a conduct worthy of the confidence of both nations, and of the reputation which his patriotism and virtues have acquired him. An analogy of political principles; the natural relations of commerce and industry; the efforts and immense sacrifices of both nations in the defence of liberty and equality; the blood which they have spilled together; their avowed hatred for despots; the moderation of their political views; the disinterestedness of their councils; and especially, the success of the vows which they have made in presence of the Supreme Being, to be free or die; all combine to render indestructible the connections which they have formed. Doubt it not, citizens, we shall finally destroy the combination of tyrants. You, by the picture of prosperity, which, in your vast countries, has succeeded to a bloody struggle of eight years; we, by the enthusiasm which glows in the breast of every Frenchman. Astonished nations, too long the dupes of perfidious Kings, Nobles, and Priests, will eventually recover their rights, and the human race will owe to the American and French nations their regeneration and a lasting peace. Paris, 30th Vindemaire, 3d year of the French Republic, one and indivisible. The Members of the Committee of Public Safety. J. S. B. DELMAS, MERLIN (of Douai) &c. OCTOBER 21, 1794. * * * * * [TRANSLATION.] _Mr. President:_ I come to acquit myself of a duty very dear to my heart; I come to deposit in your hands and in the midst of a people justly renowned for their courage and their love of liberty, the symbol of the triumphs and of the enfranchisement of my nation. When she broke her chains; when she proclaimed the imprescriptible rights of man; when, in a terrible war, she sealed with her blood the covenant she had made with Liberty, her own happiness was not alone the object of her glorious efforts; her views extended also to all free people. She saw their interests blended with her own, and doubly rejoiced in her victories, which, in assuring to her the enjoyment of her rights, became to them new guarantees of their independence. These sentiments which animated the French nation from the dawn of their revolution, have acquired new strength since the foundation of the Republic. France, at that time, by the form of its Government, assimilated to, or rather identified with, free people, saw in them only friends and brothers. Long accustomed to regard the American people as her most faithful allies, she has sought to draw closer the ties already formed in the fields of America, under the auspices of victory, over the ruins of tyranny. The National Convention, the organ of the will of the French nation, have more than once expressed their sentiments to the American people; but above all, these burst forth on that august day, when the Minister of the United States presented to the National Representation the Colors of his country. Desiring never to lose recollections as dear to Frenchmen as they must be to Americans, the Convention ordered that these Colors should be placed in the hall of their sittings. They had experienced sensations too agreeable not to cause them to be partaken of by their allies, and decreed that, to them, the National Colors should be presented. Mr. President, I do not doubt their expectations will be fulfilled; and I am convinced that every citizen will receive, with a pleasing emotion, this flag, elsewhere the terror of the enemies of liberty, here the certain pledge of faithful friendship; especially when they recollect that it guides to combat, men who have shared their toils, and who were prepared for liberty by aiding them to acquire their own. P. A. ADET. * * * * * The Answer of the President of the United States to the Address of the Minister Plenipotentiary of the French Republic, on his presenting the Colors of France to the United States: Born, sir, in a land of liberty; having early learned its value; having engaged in a perilous conflict to defend it; having, in a word, devoted the best years of my life to secure its permanent establishment in my own country; my anxious recollections, my sympathetic feelings, and my best wishes, are irresistibly excited, whensoever, in any country, I see an oppressed nation unfurl the banner of freedom. But, above all, the events of the French Revolution have produced the deepest solicitude, as well as the highest admiration. To call your nation brave, were to pronounce but common praise. Wonderful people! Ages to come will read with astonishment the history of your brilliant exploits! I rejoice that the period of your toils and of your immense sacrifices is approaching. I rejoice that the interesting revolutionary movements of so many years have issued in the formation of a constitution designed to give permanency to the great object for which you have contended. I rejoice that liberty, which you have so long embraced with enthusiasm; liberty, of which you have been the invincible defenders, now finds an asylum in the bosom of a regularly organized Government; a Government, which being formed to secure the happiness of the French people, corresponds with the ardent wishes of my heart, while it gratifies the pride of every citizen of the United States by its resemblance to their own. On these glorious events, accept, sir, my sincere congratulations. In delivering to you these sentiments, I express not my own feelings only, but those of my fellow-citizens, in relation to the commencement, the progress, and the issue of the French Revolution; and they will cordially join with me in purest wishes to the Supreme Being, that the citizens of our sister Republic, our magnanimous allies, may soon enjoy in peace, that liberty which they have purchased at so great a price, and all the happiness which liberty can bestow. I receive, sir, with lively sensibility, the symbol of the triumphs and of the enfranchisement of your nation--the Colors of France--which you have now presented to the United States. The transaction will be announced to Congress, and the Colors will be deposited with those archives of the United States, which are at once the evidences and the memorials of their freedom and independence. May these be perpetual, and may the friendship of the two Republics be commensurate with their existence. GEORGE WASHINGTON. UNITED STATES, _January 1, 1796_. When the reading of the Message and papers had been concluded-- Mr. GILES informed the House that, having been aware that the flag would be presented to the House this day, considering it as an additional testimony of the affection of France, and it having been the practice on analogous occasions for the House to express their sentiments independent of the other branch, he had prepared a resolution expressive of what he conceived would be their sense on the occasion. It was nearly in the words following: "_Resolved_, That the PRESIDENT OF THE UNITED STATES be requested to make known to the Representatives of the French people, that this House has received, with the most lively sensibility, the communication of the Committee of Public Safety, of the 21st of October, 1794, accompanied with the Colors of the French Republic, and to assure them that the presentation of the Colors of France to the Congress of the United States is deemed a most honorable testimony of the existing sympathy and affections of the two Republics, founded upon their solid and reciprocal interests; that the House rejoices in the opportunity of congratulating the French Republic on the brilliant and glorious achievements accomplished under it during the present afflictive war, and that they hope those achievements will be attended with a perfect attainment of their object, the permanent establishment of the liberty and happiness of that great and magnanimous people." Mr. PARKER moved an amendment as follows: "That this House has received with the most _sincere and_ lively sensibility," &c. The amendment was for inserting the two words in italics, to which the House consented. The Message was then voted unanimously, and a thousand copies of the communications and resolution were ordered to be printed. A committee of two members was appointed to wait on the PRESIDENT, and inform him of the resolution agreed to by the House. _Case of Randall and Whitney._ Pursuant to the proceedings of the House on Friday last, Mr. SMITH, of South Carolina, Mr. MURRAY, of Maryland, Mr. GILES, of Virginia, and Mr. BUCK, of Vermont, delivered in at the Clerk's table their several informations in writing, subscribed with their names, respectively, in the cases of Robert Randall and Charles Whitney; which are as follow: Mr. MURRAY declares, that, on Wednesday last, the twenty-third instant, Mr. Smith, member of Congress, of South Carolina, informed him that a man of the name of Randall, of Maryland, had, the evening before, attempted to bribe him in Western lands, on condition of his supporting an application which Randall told him he should soon make to Congress; the object of which application was, a grant from Congress of from eighteen to twenty millions of acres of land, between Erie, Huron, and Michigan. That Mr. Smith was extremely solicitous that some other gentleman should immediately be informed of the infamous proposal, and that he said he would mention it to Mr. Henry, of the Senate, and advise with him upon proper measures for the detecting of the full extent of the scheme, and crushing it: That he had no opportunity of talking to Mr. Henry on that day; but early on the morning of the twenty-fourth instant, communicated the intelligence to Mr. Henry, who recommended that Mr. Smith should immediately inform the President: that on the said day, Mr. Randall, of Maryland, was introduced to him, the informant, and requested a confidential interview at his, the informant's lodgings, which the informant readily promised him, to be at five, for the purpose of developing his scheme. That Randall came at or near five, that day last named, to wit: on Thursday, and communicated to Mr. Henry and himself, in general terms, the outline of a plan by which he, Randall, and his Canada friends, would extinguish the Indian title to all the lands between Lakes Erie, Huron, and Michigan, as marked on a map which Randall then showed, containing from eighteen to twenty millions of acres. That he, the informant, then asked Randall into his apartment, where they were alone. That Randall expatiated at first upon the public utility of his scheme, which was that Congress should grant to him and his company all the lands aforesaid mentioned, for five hundred thousand, or, at most one million of dollars; and that he would undertake, in four months, that the harmony of the Indians should be secured to the Union: or, if Congress thought proper, that the Indian tribes now on said land should be removed to the British side, or down Lake Michigan, reserving to some aged chiefs a few miles square; that his company and himself had determined to divide the lands aforesaid into forty (or forty-one) shares. That of these shares twenty-four were to be reserved for the disposal of himself and his partner, now in town, for such members of Congress as assisted them, by their abilities and votes, in obtaining the grant aforesaid. That of these twenty-four shares, his partner had twelve under his management for the Eastern members of Congress, and that he, Randall, had the other twelve shares under his management for the Southern members of Congress. That these shares were to be so divided as to accomplish the object by securing a majority of Congress. That the informant started an objection to land speculation as troublesome, and that he, Randall, said, if you (meaning the informant) do not choose to accept your share of the land, you shall have cash in hand for your share. That the informant appointed Randall to meet him in the lobby of the House, on Monday, the twenty-eighth instant. That Randall told him a memorial was to be handed in upon this subject on said Monday; but refused to inform the informant what member was to present it. That Randall told him, that he, Randall, mentioned his plan to some members in the _general way_ only--meaning thereby, as he understood him, a view of the sounder part of the plan, as being conducive to public utility. That, in the early part of the confidential and secret conversation, Randall said, that the members of Congress who would behave handsomely, should come into their shares on the same terms upon which the company obtained the grant; but soon after, made proposals more openly seductive and corrupt; closing them with the offer of cash in hand as aforesaid. That the informant, on that evening, when Randall went away, told Mr. Henry of the whole of Randall's offers as aforesaid; then called on the Secretary of State, and communicated the same to him; and the next morning, early, informed the President of the transaction. W. V. MURRAY. DECEMBER 29, 1795. [Mr. William Smith, of S. Carolina, Mr. William B. Giles, of Virginia, Mr. Buck, of Vermont, and afterwards, Mr. Sedgwick, of Massachusetts, severally gave in statements corroborating that of Mr. Vans Murray.] It was then moved that Robert Randall should be brought to the bar of the House. He was brought in accordingly. Seats were placed for the Judge of the District of Pennsylvania, and the two counsellors for Randall, Mr. Lewis and Mr. Tilghman, jr. The informations given in by Mr. W. SMITH, Mr. MURRAY, and Mr. GILES, were read over, and the SPEAKER asked the prisoner, what he had to say in his defence? I am not guilty. You declare yourself not guilty? Yes. Have you any proof to cite that you are not guilty? No. Are you ready to answer? Mr. Lewis[63] then rose. He observed, that these declarations had been made in the absence of the prisoner, who, as he conceived, was entitled to have been present. His request was, that the informants might now be placed in a situation to be examined by the prisoner and his counsel, and that the information may now be given in the prisoner's hearing. The prisoner and his counsel were ordered to withdraw. Mr. JEREMIAH SMITH made the following motion: "That the prisoner be informed, that if he has any questions to propose to the informants, or other members of the House, he is at liberty to put them, (in the mode already prescribed,) and that they be sworn to answer such questions as shall be asked, and that the informants be sworn to the declarations just read." The words in parenthesis were an amendment suggested by Mr. GILES. The resolution and amendment were adopted by the House, and the prisoner with his counsel were again brought to the bar. The resolution above stated was read to Randall. Mr. W. SMITH, Mr. MURRAY, and Mr. GILES, were then sworn, standing up in their places: the oath being administered by the Judge. Mr. Tilghman[63] then observed on the delicate situation in which the counsel stood, with which they were strongly impressed. The high character of the gentlemen who stood forth in support of the accusation, gentlemen whom Mr. T. had known personally for many years, with the odious nature of the crime charged on the prisoner, embarrassed them considerably; as they had, however, been permitted by the House to appear in this business, they were bound in duty to do every thing consistent with a fair and honorable defence. If Mr. T. were to declare his own opinion of the conduct of the prisoner, it would be thus, that his behavior was highly improper and indelicate; but Mr. Randall denied having made any offer either of lands or money, as in fact he had none to give. The disposal of the lands depended entirely on the subsequent vote of Congress. Mr. Lewis spoke a few words. The prisoner's defence was, that he denied any proposal of a corrupt nature. The members who favored the sale of the lands, were only to have their shares on the same terms, and on paying an equal share of the expenses, as the other partners. Mr. W. SMITH was then examined upon that part of his information where he says, that those members who should be concerned with Randall, were to have shares of the lands. Mr. SMITH was asked whether the offer was that they were to be granted at an inferior rate? In reply, he understood it was to be on the same terms as other partners were to have them. Mr. GOODHUE proposed a query, whether the offer made by Mr. Randall was in order that Mr. SMITH might use his influence to forward the scheme in Congress? Mr. SMITH replied, that he certainly understood it so. The prisoner had all along referred to members of Congress, though he did not expressly name them. His phrase was, "for persons who would favor the scheme." Mr. Tilghman then, through the SPEAKER, asked Mr. MURRAY whether he understood he was to pay for his share of land as the other associates or not? Mr. MURRAY.--I understood him as is explained in the declaration. At first I understood, that the members who should assist in getting the thing through, might then retire to their homes, and when the scheme was in activity they might come in on the same terms as the original associates. But afterwards, I understood from Randall that I might have a share if I would accept of it, and this I understood from the whole tenor of the latter part of his conversation. The shares set apart were to be for acceptance as donations. I so understood him. Mr. Tilghman.--Did he expressly say, that they were intended as donations, or did Mr. MURRAY collect this to be the man's meaning from a variety of circumstances? Mr. MURRAY.--He did not say, if you will do so and so, I will give you so and so; his proposal, though more delicate, was as unequivocal as a direct offer. I so understood him. Mr. HARPER asked Mr. MURRAY, whether Randall did not tell him, that if he did not like land, he should have money, and whether the money was not to be more than the value of the share of land? Mr. MURRAY said, that from this part, and indeed the general tenor of the conversation, he did infer, that a donation was intended, and when he objected to land, the prisoner then said, if he did not choose to accept of a share in land, he might have cash in hand. Mr. Lewis, counsel for the prisoner, asked Mr. MURRAY, whether he did not state to Randall his aversion to dealing in land, and whether Randall did not say that this need not be an objection, since the share might be sold, and then that he would have cash instead of land? Mr. MURRAY.--I did not so understand it. Mr. HARPER wished Mr. MURRAY to relate, as nearly as possible, the words of the prisoner in this important part of the conversation. Mr. MURRAY said, that immediately after it took place, and he had communicated it to his friends, he took notes of it. It stood in this manner: "I stated objections to land speculations as troublesome: Randall then said, if I did not choose land, I might have cash in hand." Mr. Tilghman asked, whether Mr. MURRAY did not, to get the man's whole secret from him, go beyond his views to draw him on? Mr. MURRAY said, he affected to think well of the more sound part of the plan. Mr. Tilghman asked what Mr. MURRAY expressed to Randall when it was proposed to him to engage in the land scheme? Mr. MURRAY.--A strong repugnance to land speculations. Mr. Lewis.--Then it was, he said, that if it was not convenient for Mr. MURRAY to be concerned in a share in land, he might have it in money? Mr. MURRAY.--Yes. Mr. S. SMITH was next sworn. There was here a motion made for adjourning. Mr. Lewis stated that Mr. Tilghman and himself had never seen the prisoner until yesterday in the evening. They had been in Court until late on Saturday evening. They went yesterday to prison, and back again this morning. They had received a long written state of the case from Mr. Randall, but, from absolute want of time, they had not been able to read one third part of it. The motion to adjourn was negatived. Mr. S. SMITH was then proceeding with his evidence, when Mr. SEDGWICK rose. He considered it as unfair to examine Mr. SMITH in order to prove the information given by other gentlemen. It was totally inapplicable. The offences were as distinct as any two things could be. Mr. BLOUNT moved to put this question, whether any conversation passed between Mr. S. SMITH and Randall, which had an appearance of intending to corrupt the integrity of members of this House. Mr. SEDGWICK objected, that this was deviating from the original specific motion. Mr. GILES was of an opposite opinion. Mr. MADISON thought the motion proper, in the strictest sense. The charge was general; and the answer to the question might be of a nature to corroborate that general charge. After a few words from some other members, the motion was carried. Mr. SMITH, of Maryland, then on oath stated in substance as follows: That on the 9th or 10th, Randall, whom he had known in Maryland, called on him and asked half an hour's conversation with him. He said he had a plan in view, that would be to the advantage of the United States, and turn to his own private emolument. Randall informed Mr. S., that he was last year at New York, that he thence went to Detroit to explore the country on Lakes Erie, &c., that he contracted an acquaintance with certain influential characters with whom he had formed an association to procure the lands in question. He mentioned the outlines of the plan and dwelt on the public advantages that would arise from it. He indirectly insinuated that gentlemen in Congress who chose to be interested in the plan might have a portion of the land in contemplation. He asked Mr. S. to fix a day when he should enter more particularly into a detail of the business. Mr. S. fixed Saturday following, and then retired into the room where his fellow-lodger was, and told him that some great land-business was on foot and that he believed he might make his fortune. On Sunday Randall came with a map on which he explained the position of the land and expatiated on the richness of the soil. He detailed the particulars of the project which Mr. S. related as has been heretofore stated with some little variations. He enlarged upon the public advantages to the United States if the purchase was allowed. He said, he would be glad if Mr. S. would embark in the undertaking, and give the plan his countenance; but, that, if he did not choose to so do, it could be accomplished without his assistance, as a decided majority of both Houses were agreed to support it. Mr. S. asked him, whether in the Senate? he said, yes. He asked him for names; he objected to mentioning any. Randall explained, that members who were most active were to have larger shares, and such as only gave their assent, smaller; Mr. S. understood that he might have one of the larger. No money was offered as a temptation to engage, but he fully understood that every gentleman was to pay his full proportion of the price. He stated to Mr. S., that it would save the United States much in men and money to have the scheme accomplished, and added, that if Congress desired it, he could remove the Miami Indians to the other side of the lakes. Mr. S. asked him what he proposed should be offered for the lands. He said, that would remain in the breasts of the gentlemen in Congress. Mr. S. asked whether one dollar an acre could be afforded, he objected to that as by far too much. Mr. S. mentioned twenty-five cents, that was too much. Mr. S. then suggested that he supposed two and a half cents were contemplated. Randall answered, that if Congress fixed this price it would be well so. He offered no direct bribe to Mr. S., but proposed to take such members into the scheme at first cost as chose to embark in it. Mr. S. asked him who was to offer his memorial. He mentioned a gentleman of great weight in the House. Mr. SMITH, of South Carolina, asked the date of this conversation. Mr. SMITH, of Maryland, answered, on the Sunday following the 10th, which must have been the 13th. Mr. Lewis, through the SPEAKER, asked Mr. S., of Maryland, whether Randall had not said, that he had actually a majority in favor of his scheme; or, that he expected to get a majority? Mr. SMITH, of Maryland, understood that he had a majority, and on this ground, he said to Mr. S. that his co-operation was not absolutely necessary. The prisoner was remanded, and the House adjourned. TUESDAY, January 5. _Case of Robert Randall._ After disposing of the morning business-- Robert Randall was then brought to the bar, attended by his two counsel; the Judge of the District of Pennsylvania likewise took his seat, as yesterday, at the Clerk's table. The SPEAKER then addressed the prisoner as follows: "Robert Randall, this is the day and hour, to which your farther examination was postponed; you are now at liberty to proceed with your defence." Mr. GILES then moved that Mr. CHRISTIE should be sworn. This was done. The member then stated that he had been at Philadelphia, about the month of October last. He met with Mr. Randall, who made up to him, and observed that he had this summer been in Canada. He had missed the object for which he went; but he had met with another which he thought would prove advantageous. He at first advised Mr. Randall to apply to the Secretary of State. Mr. Randolph had just then resigned his office; and no other person was appointed in his stead. Mr. C. then advised him to lay the affair before the PRESIDENT. When he came back to town at the sitting down of Congress, Randall came again to him, and said that by good advice he had altered his plan. He complained that Mr. C. was the only member who had not been ready to assist him. A considerable majority of the House of Representatives were secured to the scheme. Mr. C. said, that he never would advise Congress to sell their lands under a dollar per acre; and as Mr. Randall wanted the lands so much cheaper, he must in the course of his duty oppose the plan. Mr. C. inquired who were his advisers. He answered, that Mr. Whitney had told him that Mr. SEDGWICK recommended this way of proceeding, and was to draw up a memorial to be laid before the House upon the subject. Mr. SEDGWICK finding his name thus unexpectedly introduced, wished to be allowed to give oath in order that he should tell all he knew. The oath was administered to Mr. SEDGWICK, who gave information to the following effect: He had never in his life seen Randall, till he was produced at the bar. Whitney he had seen two or three times. The Mr. Jones mentioned by Whitney, in his declaration lives within about thirty-four miles of Mr. SEDGWICK's house. Whitney, with Mr. Jones, came, a considerable time ago, to him one morning, while he was at breakfast. They asked his opinion; which was, that Government would not sell any lands, till the Indian claim was first extinguished. Mr. Jones endeavored to convince Mr. SEDGWICK of the benefits which would result to the United States from this sale. Mr. SEDGWICK accompanied them to the door of his house, where Mr. Jones asked him whether there would be any thing improper in a member of the Legislature being concerned in such a purchase? Mr. SEDGWICK said, that this would depend entirely on the mode of application. If it was to the Land Office, there would be nothing wrong in it; if to Congress, then it would be a man making a bargain with himself. Whitney, since Mr. SEDGWICK came to town, had called two or three times on him. He got his servant for more than once to deny him, as he was busy. Once, however, he did see him; the first question of Mr. SEDGWICK was, from what State did he come? He said he resided in Vermont. He then spoke of the matter in a general way; and Mr. SEDGWICK, whose object it was to shake him off, advised his calling on Mr. BUCK, a member from that State, as it would be more proper to call on him. Mr. SEDGWICK believed that he was more teazed with applications of this private kind than any member in the House. During the conference with Whitney, he did not remember that Randall's name was ever introduced. Mr. SEDGWICK heard, with astonishment, the name of Colonel Pepune mentioned. He lived opposite to Mr. SEDGWICK's house, in the town of Stockbridge. He rode down from that place to New York, along with Mr. SEDGWICK, and never spoke one word of the matter to him. Randall had, among other stories, told Mr. SAMUEL SMITH that Mr. WM. SMITH _should_ bring forward this land business, in the House. He positively said so to Mr. S. SMITH on the 13th of December, and it would be proved that he had never exchanged a word with Mr. W. SMITH, nor ever seen him till the 22d of that month, viz: _about nine days after_. This is the substance of a short explanation which took place between some of the members, after Mr. SEDGWICK had ended his declaration. Mr. W. SMITH then asked Randall, whether it was not true, that he spoke to Mr. SAMUEL SMITH before he spoke to himself? Mr. Tilghman, in reply, said that he was authorized to answer in the affirmative. This puts to rest the story related by Randall to the member from Baltimore. WEDNESDAY, January 6. _Case of Robert Randall._ Mr. SEDGWICK laid before the House some additions to his evidence, delivered yesterday. He gave in a written copy of the whole, and wished that it might be added to the declaration already made. The paper was read, and, on motion, ordered to be inserted in the journals. Mr. SEDGWICK said he had yesterday mentioned Col. Pepune being in Philadelphia, but he had not seen him. He has since done so. The Colonel lodges at the sign of the Drover, in Third street, and is ready, when called upon by the House, to tell every circumstance which he knows about the transaction of Randall or Whitney. Mr. W. SMITH submitted, whether it would be proper to proceed any farther in the case of Randall, till some hearing had been given to Whitney. It was then moved by a member that the case of Randall should be postponed. After some conversation as to the point of order, the motion was negatived. Mr. HARPER then read two resolutions. Of the first, the following is the substance: "_Resolved_, That any attempt to influence the conduct of this House, or its members, on subjects appertaining to their Legislative functions, by motives other than the public advantage, is a high contempt of this House, and a breach of its privileges." The second resolution was, in substance, that Randall having committed such an offence, was guilty of such a contempt, &c. Mr. HARPER thought it proper, before deciding as to Randall, to lay down certain principles, and decide whether the offence was in itself criminal or not, before determining the conduct of the prisoner. Mr. KITCHELL thought these resolutions unnecessary. The only thing before the House was to call on the prisoner, and pronounce him either innocent or guilty. Mr. HARPER, in defence of his resolutions, said, that one misfortune attending privileges was, that they could not be exactly defined; but, as far as they could be ascertained, it was the business of the House to do so. If this offence is a breach of privilege, we are entitled to declare it such, that the people of the United States may be informed that it is so. Mr. W. SMITH could not conceive how any member would vote against this first resolution. If we refuse to say that the act itself is a crime, how can we condemn Randall as criminal? We are, in every sense of the word, bound to vote for the proposition. We have declared the attempt of Randall to be a high offence and contempt. If any member thinks it not so, then, to be sure, he will vote against it. Mr. SMITH said that Legislative bodies had frequently, while a prisoner was on trial before them, laid down rules to guide them, previous to their pronouncing sentence. A former member had suggested that it was better to make the resolution a preamble to the sentence, and introduce it with a _whereas_. As it stands at present, it is agreeable to what had been done already. Mr. NICHOLAS hoped that members were not to be bound by any thing yet done. At the first embarking of the House in this affair, he had felt doubts. His scruples had gradually augmented, and he was now of opinion that Randall should not have been meddled with at all, in the present way. The right of privilege had been given up, unless in cases of absolute necessity. He did not think that any resolution had yet passed the House, upon due consideration, whether they had a right to proceed or not. Mr. NICHOLAS recommended lenity, rather than a parade of integrity, where there was no ground of suspicion--a parade which would not have been made if there had been any real danger. Mr. WILLIAMS thought the resolutions altogether unnecessary. The principle is already entered on the journals. All that the House have to do is to declare Randall guilty or not. Mr. HILLHOUSE agreed with Mr. WILLIAMS, but he was astonished at the doctrine held up by the gentleman from Virginia. We had been told yesterday, at the bar, that the offence is not punishable by the common law. We are not to do so by privilege. The consequence is, that an attempt to corrupt members cannot be punished at all. It would not be proper to tell this to the public. Any body may then come here and bid for votes. Mr. HILLHOUSE thought that the counsel yesterday had fairly given up the point, for they admitted that improper violence without doors was a breach of privilege. Mr. H. argued that this was as great a violence as could be. He was for inflicting a punishment. Mr. LIVINGSTON thought the wording of the first clause too broad. Any member spoken to without doors might come into the House and complain of a breach of privilege on trifling grounds. Mr. GILES would not at present enter into the question whether there had been a breach of privilege or not. From any thing yet seen, he was doubtful. He was against the preamble. Privilege was of an insinuating nature. Mr. LIVINGSTON had taken up a thought which occurred to Mr. GILES. Any man meeting on the street a member of this House, may say to him, "Sir, by voting for such a thing in the House, you will destroy your popularity in your district." This argument was not on motives of public good, and a member might by this resolution be warranted to come into the House and complain of it as a breach of privilege. He wished for the previous question, which was taken, and by a great majority the resolution was negatived. Mr. LIVINGSTON then read two resolutions. Their tenor was, that it appears to this House that Robert Randall has been guilty of a contempt and a breach of the privileges of this House, by attempting to corrupt the integrity of its members, in the manner laid to his charge, and that Randall should be called up to the bar, reprimanded by the SPEAKER, and recommitted to custody, till further orders from this House. On the first resolution the yeas and nays were called for--yeas 78, nays 17. After some conversation, the second resolution was likewise agreed to. Randall was then brought to the bar, and in a few words reprimanded by the SPEAKER. To call his offence indiscretion, impropriety, or indelicacy, was too mild a name. His conduct was _crime_. His apparent ignorance of the nature and extent of his guilt had induced the House to be more indulgent than they otherwise would have been. The SPEAKER informed him that he was recommitted to custody till further orders from the House. THURSDAY, January 7. _Case of Charles Whitney._ Mr. WHITNEY was now brought in. The SPEAKER addressed him as follows: "Charles Whitney, the information lodged against you on the journals of the House will now be read to you by the Clerk." This was accordingly done. Mr. WHITNEY was next asked at what time he would be ready to proceed with his defence? He replied that he thought he could be ready to go on just now, if he had counsel. If he could get them to-morrow, he should be glad to go on then, in order to get the thing over. If counsel could not be got, he would request a delay till Monday. He was sure Mr. BUCK had mistaken his meaning. He was told that he would be called on again to-morrow, and if he had not been able to obtain counsel then, there was a probability of his being allowed a delay till Monday. Mr. BOURNE stated the hardship of obliging the prisoner to fee counsel; no probability existing of any thing farther being brought against him. There was but little in the charge, admitting it to be true. Mr. B. made a distinction of the conversation having passed in Vermont, not in Philadelphia. It was before Mr. BUCK came to Congress at all. Mr. GILES had yesterday expressed but little satisfaction at the mode of conducting this business, nor had his satisfaction been since augmented by further reflection. He read a motion, which was seconded, for dismissing Whitney immediately. Admitting all which stood charged, Mr. GILES did not consider it as containing any breach of privilege. Mr. W. SMITH regarded this resolution as premature; he wished to have the regular forms of trial gone through, as in the other case. When the trial was finished, the House could then decide on the guilt or innocence of the prisoner. He thought that Mr. BUCK ought to be sworn. When the offer was made in Vermont, he was looked upon as a member of Congress, and the temptation which had been held out to him was a contempt of the House. There was not yet a sufficient explanation to justify his discharge. Mr. HILLHOUSE supposed corruption to be equally criminal in Vermont as in Philadelphia. It would commit the dignity of the House to say that we have kept a man in jail for a week, and then have dismissed him without a trial. It implies that we never had any right to arrest him. Mr. H. had not formed his ultimate opinion on the subject. He wished the trial to be gone through, and then, if the prisoner proved innocent, dismiss him. He had made application to a member in this town, besides Mr. BUCK in Vermont. [Mr. GOODHUE, on whom Mr. Whitney called, after he came to Philadelphia.] Mr. BUCK objected to the immediate dismission of Whitney. It struck him as an impropriety to dismiss the prisoner by an unqualified resolution. It would be better to state, as a reason, that the attempt to corrupt the integrity of a member had happened in Vermont, before the sitting down of Congress. Then let the question come forward and be tried. Mr. SEDGWICK had, more than was usual with him, avoided speaking on this question. He early entertained an idea that an application to a member of Congress, before it sat, was not a breach of privilege. It was an unfortunate circumstance when the same persons were to be both judges and parties. People were apt to get into a passion when one came to them and said, "I consider you as rascals, and I want to purchase a portion of your rascality." Mr. MADISON said, it appeared to him that the House could have no privileges, unless what arises from the necessity of the case. He differed from the opinion formed by the House, but he wished them to act in conformity to their own principle. The object at present before the House is, to keep its members free from corruption. Whether a proposal is made in town or country, if we dismiss names and circumstances, and look only to the substance of the thing, there is no distinction between the two cases. Mr. PAGE said, that if the motion for dismissing had come on a week ago, he would have voted for it. He wished to get rid of the matter as fast as possible. He alluded, though not in direct terms, to the idea of Mr. Lewis, that it would have been better to have kicked some people down stairs, than to have made them objects of prosecution. Mr. HARPER considered it as a material distinction between a member being attacked and beaten, for example, in Philadelphia, during his attendance on Congress, and the same accident occurring during the recess, in a distant part of the country. It was admitted that the doctrine of privilege violated the rights of the people, and could be justified only upon the plea of necessity: it being so liable to misapprehension and misconstruction, he wished to see as little of it as possible. He gave his hearty concurrence to the resolution of Mr. GILES. He had been desirous of seeing such a thing brought forward. He adverted to the delicate situation of the House, at once accusers, judges, and witnesses. Mr. GALLATIN spoke a few words in favor of the motion. Mr. ISAAC SMITH was persuaded that the House possesses privileges, and has a right to exert them. They are pointed out by the constitution. Mr. S. wished to dismiss the prisoner. It had been said that dismissing him without a trial, after having apprehended and confined him, would be casting a reflection on the House. No such thing! There existed probable grounds of suspicion. We have waited full time, and no proof has come forward. Then let him go, and the sooner that we do it the better. When Mr. ISAAC SMITH sat down, Mr. GILES rose to offer a resolution, in place of his former one: "_Resolved_, That it appears to this House that the information lodged against Charles Whitney does not amount to a breach of the privileges of this House, and that he therefore be discharged from custody." Mr. FREEMAN voted yesterday in a minority for dismissing Randall. He would this day vote for discharging Whitney. As to the dignity of the House, even an outrage upon it could be as well punished by a Justice of the Peace as by ourselves. He stated the extreme difficulty of adopting, in practice, the doctrine laid down, that an improper offer made to a member when in the country, was to be punished as a breach of privilege. A member, suppose from Georgia, comes here, and tells a story of somebody in that State who has made him an unsuitable proposal: the Sergeant-at-Arms is instantly despatched a thousand miles to bring this person to the bar for contempt of the House. What kind of a business would this be? Mr. HARTLEY thought the resolution last offered by Mr. GILES had too much narrowed the ground of dismissing Whitney. He had been taken up as an associate with Randall. The charge had not been properly supported by evidence. Dismiss him, and let the want of proof be your reason for it. Mr. H. cordially agreed with the substance of the resolution, but he objected to the wording of it. Mr. KITCHELL pointed out the wide distinction between the cases of Randall and Whitney. It had been said that the latter must be criminal, for he was an associate with Randall. Mr. K. saw no such thing. There was no criminality in the bond. Keep a man in jail week after week upon idle suspicion! Injustice, Whitney ought to have been tried at first, when he declared himself ready for trial. Mr. K. was for discharging him this day. Mr. HARPER now moved an amendment to the resolution before the House: it was in these words: "Inasmuch as the proposals made by the said Whitney took place before the member to whom they were addressed had taken his seat in the House." Mr. GILES.--If the amendment succeeded, he would vote against the whole proposition. This was a renewal of the attempt to define privilege. It was not practicable. Every case of the kind must stand upon its own merits. Mr. G. would vote against the amendment. Mr. MACON read a resolution, that Charles Whitney be discharged from the custody of the Sergeant-at-Arms. This was, in fact, reducing the second resolution offered by Mr. GILES back into his first one. Mr. SEDGWICK thought it an awkward thing to attempt giving any reasons. If gentlemen are willing to agree to discharge Mr. Whitney, they ought to discharge him. They assign different reasons for the same proceedings, and will not consent to it, but each in his own particular mode. Mr. HARPER was astonished to hear so many invincible objections to telling the motives why we agree in a measure. It had been complained that privilege was undefined; that it was an assuming, creeping monster. An attempt had been made to define it, in part, and this also had been objected to. Mr. MACON said, that he would vote to discharge Whitney, for a particular reason alleged by Mr. GILES. Now, replied Mr. GILES, if the gentleman is to vote for the dismission because that is my reason, I desire him to vote against the dismission. My reason for discharging Whitney is totally different. I argue, that all which we have entered on the journals, admitting it proved, does not amount to any breach of our privileges. That is my motive for dismissing the prisoner. An amendment was proposed to strike out of the resolution of Mr. GILES the following words: "That it appears to this House, that the information lodged against Charles Whitney, does not amount to a breach of the privileges of this House; and." The amendment was agreed to--ayes 43, noes 41. It was then moved to alter the remainder of the resolution, by striking out the word "he," and inserting "Charles Whitney." The amendment was adopted; and the resolution so amended, stood thus: _Resolved_, That Charles Whitney be discharged from the custody of the Sergeant-at-Arms. This, also, was agreed to. FRIDAY, January 8. JEREMIAH CRABB, from Maryland, appeared, was qualified, and took his seat. _Indian Trading Houses._ The House went into Committee of the Whole, Mr. MUHLENBERG in the chair, on the bill to establish trading houses for the Indian tribes. Mr. DAYTON objected to the bill, so far as it empowers those who are to sell the goods to the Indians, to procure or purchase the goods. He considered the uniting these powers in the same persons as highly exceptionable and liable to great abuse. He moved to strike out the words "procure or." Mr. PARKER said that the objection was misapplied, for subsequent clauses placed the business under the special direction of the PRESIDENT OF THE UNITED STATES. He should not, however, object to striking out the words. His view in rising was merely to justify the committee who reported the bill, as they had supposed that sufficient guards were provided. Mr. GILES did not think the reason given for retaining the words sufficient. The PRESIDENT cannot be supposed to have such cognizance of every part of this business as will enable him to secure the public, or Indians, from imposition. He was for increasing the checks against abuse. The motion for striking out was agreed to. In the third section, Mr. SEDGWICK objected to the words "laying aside all view of gain by the trade." They might operate disadvantageously to the people of the United States, if Government should enter into this trade on a principle that would preclude all private adventures in the same line by citizens. The words were expunged. Mr. PARKER presented a substitute. It relates to compensation of agents and clerks to be employed. The sum of ---- dollars was to be appropriated. The substitute was adopted by the committee. In the seventh section, Mr. SEDGWICK moved an amendment, providing for the forfeiture of licenses in case of contravening the provisions of the law. This motion was withdrawn in order to introduce the provision elsewhere. Mr. MILLEDGE moved to strike out the whole of this seventh section. It appeared to him to involve provisions which would be proper in another law, but in this bill blended two different subjects. Mr. SEDGWICK considered the provisions in this section referring to certain rules for regulating the public trade with the Indians, as proper, since similar rules would be made in regulating the trade of individuals with Indians. On this ground he was for retaining the section. It was moved to modify the section by confining the provisions to "the agents or clerks," specially employed by the United States. This amendment was agreed to. On the motion of Mr. SEDGWICK, the last clause of the seventh section, relative to the oath or affirmation, was expunged. The committee then rose; the Chairman reported the bill with the amendments, which were taken up, and agreed to by the House, with one verbal amendment. Mr. SWIFT expressed his disapprobation of the bill. He thought the object unattainable to any important extent. He disapproved of public bodies being concerned in trade. It is always managed better by individuals. Great loss and dilapidation are the consequence; nor is it possible to guard against frauds and abuses. The public have no money to spare. It is the opinion of the Committee of Ways and Means, that additional taxes will be necessary for the public service. We must not tax our constituents for the sake of trading with the Indians. He hoped not. Mr. S. concluded by a motion for striking out the first section. Mr. PARKER supported the principle of the bill; he wished a fair experiment to be made. The plan is founded on humanity and benevolence. It has been recommended by the PRESIDENT from year to year. Mr. P., on this subject, had been in sentiment with him. It was well-known he had never lightly advocated a disbursement of public money; on this occasion, it would be a saving of public money. It will cost much less to conciliate the good opinion of the Indians than to pay men for destroying them. Mr. HILLHOUSE was in favor of an experiment. Much had been anticipated from the plan; a beginning had been made, and he thought it best to try it for such a length of time as would afford a fair experiment of what could be done. Mr. SWANWICK said he was in favor of the principles of the bill, were it merely as a change from our usual system of Indian affairs. We have hitherto pursued war at an expense of a million and a half of dollars nearly annually; let us now try the fruits of commerce, that beneficent power which cements and civilizes so many nations; barbarous till they became acquainted with its influence. To encourage us, indeed, a fact has come to our knowledge on the investigation of the case of Randall. Gentlemen will remember his assertions to them, and the deed read in the House, in which so much was stated of the influence of the Canada traders over the Indians: well, let us try to balance or countervail this influence; but it has been observed, our private citizens will do this sufficiently in the way of their private trade. In general I am friendly to let commerce take its own level without Governmental interference; but the little influence our traders have yet obtained, shows plainly enough defective capital or a defective extent of trade; both are to be apprehended. So many objects of speculation offer in this country, that individuals may not pay sufficient attention to this branch, in which they have so powerful a British interest to contend with. Government, alone, can do this in the infancy of the commerce. Let the experiment be made; we can lose little by it; we may gain a great deal. It has been observed, that this act has been rejected in three different sessions of Congress already; and this is argued as a proof of its want of merit; but this has been the fate in England of the navigation act; it was hundreds of years struggling to get into existence, but was not the less acceptable when at last it succeeded. Perhaps we may find this bill, on experience, none the worse for the difficulties, which, as an untried step, it has hitherto had to encounter: it is recommended by general reasoning; let us try it; we can only repeal it if we find it does not answer the sanguine expectations entertained of it. Mr. MACON[64] was opposed to the bill. He thought the circumstance of the business having been so long in agitation, was a reason why it should be longer considered. The reason for delay was certainly not weakened by that. The business was highly improper for Government to embark in. Mr. MURRAY had but one idea to suggest, as it was unnecessary to go over the general policy, which had been amply stated by other gentlemen. There appeared to him two objects; first, the securing the Indian friendship by a supply of their wants; second, the supplanting the British traders in their influence over the tribes whose hostilities might embarrass us. To the last object, therefore, the meditated mode of supply by public agency was peculiarly well adapted. The Indians are now supplied by a great company long established, very wealthy, and possessing this influence, in which we must supplant them. We are to consider whether, if private individuals are left to be the only competitors with the Canada company, this influence and this trade will be transferred agreeably to sound policy. He thought they would not. Small capitalists, and adventurers young in this trade, would certainly prove unequal to a competition with so well established and rich a company as the Canada company. It was no uncommon thing for great companies, when they were apprehensive of what they would call interlopers, to crush all competition by making a voluntary sacrifice of a few thousand pounds sterling. By underselling, on a large scale, for a time, and even a certain loss, they secured themselves in future from competition. This great company can afford to pay this price for the perpetuity of this trade and influence. In order to meet the capital of this company, we must not trust to individual small capitalists. By a sum appropriated by Government to the object, however large the capital in competition in Canada, the Government will be able to beat down the trade of this company and place it in American hands; and in a few years after the competition has ceased, the Government may then withdraw its agency, and leave it to private capitals, to which the field will then have been rendered easy. The motion of Mr. SWIFT was negatived; and the bill was ordered to be engrossed for a third reading. WEDNESDAY, January 19. _Appropriations for 1796._ The House went into Committee of the Whole on the bill making appropriations for the support of Government in the year 1796. Mr. WILLIAMS, agreeably to notice given on a former day, moved to strike out all that gross sum appropriated for the officers of the Mint.[65] Mr. W. SMITH said that a great proportion of the sum was for salaries established by law. They must be paid, till the law is repealed. If the gentleman means to suspend the whole appropriation bill till an inquiry is gone through with respect to the Mint, the bill may be delayed for two months, and the consequence be the greatest embarrassment in Government. Mr. JEREMIAH SMITH had never been much in favor of the Mint, nor had experience increased his good opinion of it. But passing this appropriation bill would not prevent a full investigation of this subject hereafter. He was for deferring any proceeding about the Mint till the select committee made their report. He opposed the motion. Mr. SEDGWICK thought that the course which the gentleman is pursuing had never been adopted before. It is incorrect to discuss the merits of the Mint in passing this bill. We might as well take up the salary of the Chief Justice, or any other article in the bill, as the Mint. We never should have done, at this rate. We are now only to vote for the bill, as agreeable to the laws already made. Mr. SEDGWICK said that if the gentleman from New York (Mr. WILLIAMS) would bring forward any proposition for the regulation, or even the abolition of the establishment of the Mint, if it could be proved productive of public benefit, he, with every other gentleman, would give him their aid to effect the object; but that now, he conceived, it could not regularly be brought forward. He thought an appropriation bill should be conformed exactly to the state of the public engagements, and that where establishments had been formed and salaries provided, the amount of them should be the principle of calculating the amount of appropriations; and that the House ought not, by withholding appropriations, to break in upon and destroy establishments formed by the whole Legislature. That these observations had hitherto been sanctioned by the practice on this subject. He observed, that if the House was to investigate, in the discussion of an appropriation bill, the amount of salaries and the legal establishments of Government, the public service would be dangerously destroyed. He remarked, that it was to be observed that no appropriation was made, for any purpose, since the commencement of the year. Mr. GALLATIN felt alarmed at the principle advanced by Mr. SEDGWICK, for, if admitted, it might be applied in future on some other and important occasion. The motion made by the member from New York ought not, perhaps, to be adopted; but there was certainly a discretionary power in the House to appropriate or not to appropriate for any object whatever, whether that object was authorized by law or not. It was a power which, however inexpedient on the present occasion, was vested in this House for the purpose of checking the other branches of Government whenever necessary. That such a right was reserved by this body, appeared from their making only yearly appropriations for the support of the Civil List and of the Military Establishment. Had they meant to give up the right, they would have such appropriations _permanent_. There was one instance in which this House had thought it proper to abandon the right. In order to strengthen public credit, they had consented that the payment of interest on the debt should not depend on their sole will, and they had rendered the appropriation for that object not a yearly, but a permanent one. Whenever that was not the case, and the right had been reserved, it was contradictory to suppose that the House were bound to do a certain act, at the same time that they were exercising the discretionary power of voting upon it. Mr. SEDGWICK said that he certainly had no intention to have given occasion to the observations which had been made; but, as the general principle which he had laid down had been denied, and as it had some relation, either intimate or remote, to the subject before the committee, he would take the liberty to repeat the principle, and say a few words in support of it. The principle, then, which he had assumed, was, that when legal establishments were made, it was the duty of the Legislature to make appropriations conformably to the public engagements; and that neither branch had a right to withhold its assent. He observed that the whole Legislature, and not a part, were competent to form contracts, and to establish and alter compensations and salaries. The Legislature, and not either branch of it, had the power of expressing the public will, and pledging the public faith; that when a salary is ascertained, the public faith is pledged that it shall be paid, according to the stipulation; and that, therefore, the public credit is involved in making the necessary appropriations, without which it could not be paid. He asked, if, in such a case, it was competent to the House rightfully to withhold the means necessary for the performance of the public engagement? He said he had always supposed that the power of the House, in the case of appropriations, did not give a power to yield or withhold assent on such a subject. He believed, in every such instance, the exercise of discretion was restrained. To illustrate his ideas, he could mention a similar instance. The constitution had declared that the PRESIDENT should receive a stated compensation for his services, to be ascertained by law, which could neither be diminished nor enlarged during the term for which he should have been elected. Here was a duty imposed on the Legislature, with the performance of which they could not, they had no power to dispense. Yet, after the compensation was stated, no payment could be made in consequence of appropriating. He asked, if, in this case, when the public will was expressed, the engagement and the national faith pledged, the Legislature could of right withhold the necessary appropriation? The same observations might, he said, be applied to every instance where public contracts were formed. The public faith was pledged, the necessary appropriation must be made to prevent a violation of it; and if withheld, such violation might justly be charged on the Legislature. Mr. NICHOLAS was for the resolution. It had been urged that the House were to pass the appropriation bill as a matter of course. He thought otherwise. The House, in enacting a law, were entitled to consider all its consequences. Mr. GILES adverted to a fact stated by Mr. WILLIAMS, viz: that the cents are issued from the Mint at a cheaper rate than the price of the copper itself; so that, if a person chooses to melt down a pound weight of cents into a lump of copper, and takes this lump back again to the Mint, he will receive more money for it than what it was worth in cents. Thus the whole expense of workmanship is cast away. Mr. GILES described the ridiculous and wasteful effects to be looked for from such a way of coining money. The amendment of Mr. WILLIAMS was agreed to by a very large majority. Mr. NICHOLAS moved to strike out some of the subsequent clauses, for payments to mechanics, for stationery, &c. Mr. ISAAC SMITH wanted to know if it was meant to stop the whole operations of the Mint. Mr. PAGE objected to dispersing the workmen, who could not easily be collected again; at least it would require an immense expense to re-assemble them. It has been stated, in the course of this discussion, that _every cent coined in the Mint_ has cost the public TEN; but if the workmen are to be dispersed, and if at any future time assembled again, the cents may come to cost _A HUNDRED CENTS_ apiece. Mr. P. recited various reasons for hoping that the business of the Mint will in future be conducted with more expedition, economy, and success. He stated the immense benefit arising to the country from the plenty of copper money, and especially to the poorer classes of people. A Mint was of more consequence than gentlemen seemed to think it was. He said that private mints were reported to be setting up. He wished to refer the amendment of his colleague from Virginia to the third reading of the bill. By that time the House would be better informed. Mr. NICHOLAS did not wish to abolish, but merely to suspend the operations of the Mint till nearer the end of the session. This amendment was negatived. The committee rose, the Chairman reported, and the House took up the bill as reported. The House adhered to the amendment of the Committee of the Whole. Mr. LIVINGSTON next moved that the whole appropriation for the Mint should be struck out. Mr. MURRAY said, that had the gentleman from New York moved for delay, for the purpose of introducing a motion to repeal the law which rendered this appropriation necessary, he would not have troubled the House with a single remark; but his motion to strike out an appropriation for the purpose of bringing the policy of the law itself into discussion, contained a principle in his mind so repugnant to the great Legislative duties of the House that he would oppose it. The object of the appropriation is not a temporary one, but a part of the machinery of our Government, under the express authority of the constitution by law. The doctrine now contended for by the gentlemen from New York and Pennsylvania (Mr. LIVINGSTON and Mr. GALLATIN) was that this House have a discretionary power of appropriating or not. To this doctrine, taken in the extent which he conceived they contended for, he could not give his support. On the contrary, he thought that in all cases where an appropriation flowed from a law to make good a contract, or to erect a permanent organ in the Government, and from any law whose object was permanent, the true doctrine was, that it was the duty of the House to vote an appropriation. A law is the will of a nation. The same powers only that formed it can repeal it. If it be a constitutional act, no power can lawfully obstruct its operation or its existence. But attending to the doctrine maintained to-day, it would follow, that though this House had not the power of repealing a law made by all the branches of Government, it may obstruct its operations and render it a dead letter; though it cannot repeal, it may do what shall amount to a repeal, which is the assumption of a power almost equal to that of exclusive legislation. He thought he saw in this an evil of great extent, and an anarchy of theoretic principles. It appeared to him that though we originate money bills, we had no right to refuse an appropriation to existing laws that either secured a debt or any contract, or that related to objects permanent by the law that created or acknowledged them, as long as the law itself remained unrepealed. We had but a share of Legislative power. Where a law relative to such objects as he had alluded to existed, from which an appropriation followed, till the law ceased by repeal or by other constitutional means, it was obligatory upon us as well as upon our constituents, and the only powers we could exercise of a discretionary sort resolved themselves either into this mode of making good the appropriation, or of voting for its repeal. The other branches would then judge of the propriety of our proceeding; but till they who assisted in its enacting, judged with us the necessity of doing it away, a duty resulted that we should give it the energy intended by its enaction. Mr. DAYTON conceived the question brought under discussion of too delicate a nature to be decided at the present time. He, however, expressed it as his opinion that the power of making appropriations was intended and ought to be a check on establishments. Mr. NICHOLAS conceived the House bound to weigh the merits of every law when an appropriation was to be passed to carry it into effect, and no appropriations should obtain the sanction of the House, unless they were convinced of the propriety of the law. Mr. GILES said he did not expect to hear a doctrine so novel broached in the House as that advanced by the member from Massachusetts, (Mr. SEDGWICK.) He had declared that he conceived the House could exercise no discretionary power when about to pass an appropriation bill. Mr. SEDGWICK rose to explain. The principle he advocated was, that when a law was made pledging the public faith, the House had no discretion to withhold, or not, an appropriation; at least as long as common honesty was more than a name. Mr. GILES said that if this doctrine was admitted in its full latitude, the House would become a mere office for the registering of edicts. He contended that the House had a right, by withholding appropriations, to put an end to an institution without the concurrence of the Senate. He would not say that the present was a case that called for the exercise of that right, but they had in all cases of this nature a right to exercise their discretion. Mr. MURRAY considered the laws of the land as depending upon two other branches of the Government besides this House, and conceived it highly improper in the House to attempt to obstruct them by withholding necessary appropriations. What would be the effect of a contrary doctrine? It must contain the seeds of governmental anarchy. While a law remained in force it was the duty of the House to do what was needful to carry it into operation. He made some allusion to the British House of Commons, who, by privilege, contend for the right of withholding supplies to be a check on the patronage of the Crown. But such a principle, he contended, could not apply here; our Government could not proceed if it were admitted. As long as a law exists, it is the duty of the House to make the needful appropriations. The whole wisdom of the Government is not in this House. The same power is required to repeal laws as to make them. It is true the constitution has given to the House the more immediate command of the purse-strings; but they were under an obligation to open them when necessity required. There is a constitutional way of repealing laws; but the House has no right to obstruct their operation while in force. A member from Pennsylvania, (Mr. GALLATIN,) he observed, appeared on a former occasion to coincide with his opinions on this subject; for he argued that the House was bound to pass such an appropriation, as a law existed giving the salary to the officer which it was meant to provide for. Mr. GALLATIN said, in answer, that his observation had simply been, that the Committee of Ways and Means, and not the House, conceived itself bound to report an appropriation for an item established by law; but he never doubted the power of the House to pass, or not, an appropriation. In such cases the line of duty must remain to be drawn by opinion. With what degree of consistency can the House be called on for a vote if, as some members contend, they cannot have an opinion? Why are they called upon to say, yea or nay, if they are obliged to say yea? Mr. MURRAY conceded that a member might say yea or nay, but his duty must in cases of this nature clearly point to one of the two; for he could not mistake the black and white marks in the court of conscience. He has the physical power to say yea or nay; but if he does his duty he must say yea. The contrary principle would go to this, that the House had a right to refuse an appropriation to pay a just debt. Mr. GALLATIN observed, in reply, that each member will be the sole judge whether it was or was not his duty to say yea, or the contrary. The constitution, he said, declared that no money should be drawn from the Treasury but by appropriations made by law: this did not look as if the voting of appropriations was intended to be merely a matter of form. In the second place, the constitution declares, that no appropriation for the support of an armed force shall be made for more than two years. Thus, though a Military Establishment may be formed by enlistments for three or more years, yet the constitution provides that the question shall be submitted to the House every two years; and this surely is not as a matter of form; but in order, at such short periods, by voting on an appropriation bill, to determine whether such an establishment should exist longer or not. He conceived the power which he advocated as residing in the House of great consequence, and to be used on important occasions only. Mr. NICHOLAS, who had risen at the same time with Mr. GALLATIN, and had given way to him, observed, that when he first rose, he was going to read the clause of the constitution which the member last up had referred to. As to the black and white marks the member from Maryland spoke of, they were differently placed in different persons; in matters of opinion men will differ; but the constitution is a guide not to be departed from. The power of appropriation was vested by that instrument chiefly in the House, and no power on earth would prevent his exercising his discretion when that power was to be put in activity. Mr. GILES observed, that the member from Maryland had got into the doctrine of checks, and seemed to think that if the House exercised its constitutional check it would produce governmental anarchy. Mr. MURRAY explained. He had alluded to the mode of getting rid of an establishment by refusing appropriations to carry it into effect. The constitutional mode of procuring the repeal of the law should always be had recourse to; but he insisted that the House could not, as they were bound by their duty, obstruct a law in force by refusing an appropriation. Mr. GILES conceived that the checks provided by the constitution might be used by each of the powers of government to their full extent, limited in every particular case only by their own discretion. If the harmony of the branches was to be made an argument to prevent the exercise of checks, what, he asked, became of the checks provided by the constitution? Each branch of the government (if he understood what was meant by constitutional checks) was to exercise its own opinions and use its discretions within constitutional limits, without a reference to the opinions of other branches. He next adverted to the powers of appropriation, which he contended were in a greater degree vested in the immediate representatives of the people, to be a wholesome check. In case of an army establishment, for example, suppose the PRESIDENT or Senate were to refuse their assent to the repeal of a law establishing it? Will it be said that the clause of the constitution empowering the House to make a biennial appropriation for the object, does not vest in them a discretionary power in such instances of overturning the establishment by its own will? for it cannot be kept up without an appropriation. Is the House to be told that, for the sake of harmony, they must give up their own powers and opinions? He maintained that, in cases of appropriations, they had a discretionary power, to be exercised, as in all cases, discretionarily. Was one branch to be judges of discretion for another? No; each should judge for itself. Mr. MURRAY said, it was known to every one that an appropriation for the support of a military establishment could not be made for a longer term than two years; but that case was widely different from the present. It was known that, by the constitution, a military appropriation cannot exist more than two years; but the doctrine he supported was in cases of debt or obligation under a law; and, in such cases, he still contended that, though the House had the physical power to refuse an appropriation to satisfy a claim thus founded, they had not the right. Here the debate was interrupted by a motion for adjournment; which was carried, and the House adjourned. WEDNESDAY, January 20. _Appropriations for 1796._ The amendments from the committee being thus gone through, the bill was ordered to be engrossed for a third reading.[66] SATURDAY, January 30. _Stenographer to the House._ The House then went into a Committee of the Whole on the report from the stenographical committee. The report was read. Mr. SWANWICK: then rose for the sake of asking information. He inquired whether the House were to sanction and authorize the reports of the proposed stenographer? He had very considerable apprehensions about the propriety of entering into the subject in any mode. Mr. W. SMITH replied, that the gentleman engaged by the committee had undertaken to have his reports ready for Mr. Brown, printer of the Philadelphia Gazette, in the morning of the succeeding day. Mr. SWANWICK rose again. He observed, that to give universal satisfaction was impracticable. So many gentlemen were to be satisfied, that it never could be accomplished. He observed that one of the principal causes of complaint against reporters was of a nature that did not admit a remedy. Gentlemen rose, in the ardor of discussion, and suffered many remarks to escape from them, which, neither in thought nor expression, were perfectly correct. If the reporter, as was his duty, took them down, and stated them exactly, gentlemen were irritated by seeing themselves exhibited in this shape, and then blame was cast on the reporter. Every degree of praise was due to the editor of a Philadelphia daily newspaper, whom Mr. S. named, and who had not only done every thing in his power to obtain the debates of the House at full length, but had frequently advertised, that if errors were committed by his reporter, they should, on application, be instantly rectified. More than this it was impossible to desire, for no mode of conduct could be more liberal or candid. But Mr. S. did not see the propriety of blending the House of Representatives and the editor of a newspaper in this business. The stenographer is to be called an officer of the House, while he receives eleven hundred dollars from the printer of a Philadelphia newspaper. He is thus also the officer of the printer, as well as ours. If we give the gentleman the proposed salary, we are to depend on him alone, whereas at present we have different reporters, and two or three of them frequently and mutually both corroborate and correct each other. What has escaped one reporter, or what he has misunderstood, is often observed by his competitor. The error is amended, or the defect supplied. Mr. S. farther observed, that as far as he had read or heard of, such an institution as the one now proposed, was never known under any Government, or in any country, that had hitherto existed. [It was observed, in some part of the debate, that an attempt of this kind was once made by the National Assembly of France.] Mr. S. expressed himself warmly against Government making any composition of the nature now proposed with a printer, and against any attempt for giving one newspaper an advantage over another, by any preference as to the copy. If Mr. S. wanted any person to be sure of dismission and disgrace, he could not name any other situation where that dismission and disgrace were so absolutely certain, as to a person accepting the proposed office of stenographer. If he did his duty, gentlemen would frequently not like to see their speeches exactly as delivered. If he altered them, his utility was at an end. It would therefore be much better to let the gentleman stay at his own business. Mr. GILES objected particularly to the opposition made in this late stage of the business. He admitted that it was a delicate step, but he complained in strong terms of the inaccuracy of the reports now given. He observed that the object was not merely to find a stenographer who would satisfy the members of that House, but who would also give satisfactory information to the public at large. Mr. SHERBURNE agreed with the gentleman last up, that the object of the resolution could not be merely to give satisfaction to members, but information to the public; though if it was important that the public should be informed of what was said in that House, the proposed resolution would be inadequate to its objects. But he conceived it more important for the public to be informed of what was done, and that, he observed, was not always to be inferred from what was said; as (the mind being always open to conviction) it had not been unusual in a former--he would not say the present--House, for gentlemen to argue one way, and vote another. As therefore, no certain inferences of the conduct of members would be drawn from their speeches, and as the public were more interested in their actions than their sayings, (a knowledge of which the present resolution was not, in his opinion, calculated to promote,) it would not meet his concurrence. But, Mr. S. further observed, that if the speech was to be considered as the infallible _inditium_ of the subsequent conduct, as the avowed object of the resolution was to diffuse, through the various parts of the States a knowledge of that conduct, he should oppose it from a conviction that the means were not competent to the end. The resolution proposed a publication of the debates in a daily Philadelphia paper. These debates would necessarily be so voluminous as to engross the greater part of such a publication. Except in Philadelphia, New York, and one or two other large cities, there were no daily papers; in all other places, they were not published oftener than once, or, at most, twice, a week. The daily papers, in comparison with others, were few. If, therefore, a daily paper was engrossed by a detail of the debates, when would the public arrive at a knowledge of them through the more common medium of a weekly paper? The inhabitants of this, and a few other large towns, might be gratified, perhaps benefited, by a speedy perusal of them; but when would the citizens of more distant parts of the Union, through their usual weekly channels, be indulged with the like opportunities? The difference would be as one to six; and what the inhabitants of Philadelphia might become acquainted with in one year, the people of New England and Georgia would not be informed of in six years, unless they relinquished their own weekly publications for a Philadelphia paper. Mr. SEDGWICK said, that he would candidly confess that the House had put itself in a delicate situation on this subject; yet if, on the whole, gentlemen be of opinion that the measure was improper, it ought not, by reason of any antecedent conduct, to be now further pursued to the public detriment. It was also but just to say, that if the measure was proper, a more competent and more impartial agent than the one proposed could not be obtained. He said that the printers had much merit from their endeavors to communicate to the public the debates of the House, yet it must be allowed that their endeavors had been too unsuccessful; that, in consequence, much injury had been done, not only to the characters of gentlemen as men of talents, but also in some instances, to the motives which had produced public measures. These were evils to which a remedy should be applied, if it did not involve those which would be more injurious. It ought to be remembered that the man appointed would be an officer of the House, responsible to it for his fidelity and accuracy. The debates would then be published under authority of the House, and it of consequence was responsible for his precise execution of the trust. It was impossible to conceive that at some times, with the best intention, he should not mistake, and of course misrepresent. The member in such a situation, would feel the injury, but redress would be obtained only by the interposition of the House. This would afford ground for numerous appeals, and endless litigation; and, in the end, might be ruinous to many valuable and respectable characters. It was of importance that no constraint should exist which would prevent gentlemen from expressing freely and without fear their own feelings and opinions and those of their constituents. How far the fear of misrepresentation, and the difficulty of correcting it, under such a system, would produce such an effect, gentlemen he hoped would consider before they assented to this proposition. There was one other consideration, which had great weight on the mind. Whatever opinion we might entertain on the subject at present, all would remember the powerful influence of party and faction, and their intimate connection with free governments. From hence it might be easy to conceive, that hereafter this might be rendered the most powerful engine of an unprincipled majority, to overawe and to prostrate and destroy a virtuous minority. For no character was so established as to withstand for any length of time constant misrepresentation supported by the authority of the House of Representatives. Mr. HARPER rose in reply to Mr. SEDGWICK, who, immediately after he began speaking, observed that the gentleman had mistaken his meaning. Mr. H. said that he perfectly understood the member, and proceeded to recommend the object of the report. He gave credit to the present reporters for diligence and good intention, but thought them far inferior to what might be done. Great attainments had been made, he admitted, but more might be done. He thought it of the highest consequence that the speeches of members should be correctly published and disseminated among the people. As to the sum now proposed, a London newspaper would give, he had no doubt, five thousand dollars a year for such a reporter. He questioned not that Woodfall would receive ten thousand pounds a year from the printer for his reports. It had been objected that daily papers alone could hold such debates; but weekly and semi-weekly papers could select the most interesting passages of them from the daily papers. Mr. H. recommended either that this report or a similar one should be adopted, or that the business of reporting should at once be put to an end. He spoke of _atrocious_ mistakes. The debates, as now published, held up the House to the scorn of the world. He would rather have the doors shut up altogether. He would, if the present resolution was rejected, make a motion to that effect. He was sorry to learn that the debates had been collected into a book, entitled "The Political Register," of which he doubted not that immense numbers would be sent to Europe, and this book he reprobated in the strongest terms. Mr. SEDGWICK observed, if gentlemen were misrepresented, in one of the newspapers, where debates were reported, the editor of that paper had advertised that he was ready to publish any corrections which might be offered. This notice had been long and frequently given, and gentlemen had it in their power to do themselves justice. The first resolution in the report was then read, and the question going to be put, when Mr. BALDWIN said, that the more the House advanced into this affair, the greater was the number of difficulties which occurred. The resolutions had the less weight with him because they were hurried through at the close of last session. The institution was unprecedented in any other Government. He knew that members might be misrepresented, but this scheme would not cure the evil. He repeatedly declared, that on all great questions, where talents found an object worth exertion, the debates in that House were very well represented. He had seen many speeches, sketched by printers in this city, that he would not wish to see better done. He did not know of any recent or particular complaints about inaccuracy. We have now been in session for seven or eight weeks, and there has not occurred much interesting matter, to make any remarkable debate out of He said that the debates, if taken at full length, would far exceed the limits of any newspaper. As to the expense of printing, that of the laws of this session would cost twenty thousand dollars, and he conjectured that to print the speeches, would require a hundred thousand dollars; and even after they were printed, it would be necessary to pay people for being at the trouble to read them, for otherwise nobody would go through a perusal of every word spoken in the House. Mr. NICHOLAS said, that the reports at present published were full of notorious falsehoods, and the characters of members with their constituents would have been sunk, if it had not been known that this kind of things deserved no credit. He was in favor of the report. He complained that even when pieces were sent to the printers, they were embodied in the sketch, by Which means the reporter got the full credit of them, which had pernicious consequences. One of his objections to the present mode of reporting was, that the speeches of members were often much improved. He mentioned an instance from his own experience. A speech was once made for him by a person who reports in this House, and who has a very good style of writing. The style, said Mr. N., was above mine. There was not a sentiment in it which I would have disavowed. It was a better speech than mine; but, in an entire column, there was nothing that I said. As for sending corrections to the printers, Mr. N. was above it. Mr. HILLHOUSE was against the report. The loss of four thousand dollars would be a much greater harm to the public than any injury arising from inaccurate reports. He did not see that the characters of members with their constituents depended on these publications. Mr. SWANWICK.--The gentleman from Virginia last up has suggested that the House have somehow committed themselves to appoint a stenographer, by their previous resolution on this subject; but that resolution goes only to the committee receiving proposals. It therefore remains with this House whether to accept them or not when made. As to the gentleman who is the subject of the resolution, if I have more strenuously than usual opposed the motion, it is from a desire to keep him from quitting the lucrative situation he is said to find himself in, to embark on the stormy sea he is contemplating. To be the organ of the members of this House to their constituents is indeed a very delicate task; one for which, considering the danger he might be in of an Orpheus's fate--that of being torn to pieces--the salary is but a poor compensation. He is to do justice to the eloquence of some members; he is to clothe in an elegant dress the uncouth, yet well-meaning expressions of others; but what will he do with the silent members, who never speak at all? What will their constituents think of them? Indeed, sir, if he has the idea I have formed of his danger, he will not undertake it at all. Faction and party have been mentioned: happy stenographer, if he can keep clear of these! If he fall into their power, insensibly he will represent one side in clouds and darkness, the other as ornamented with the brightest beams of light. How will he please both? Misrepresentation is complained of: alas, sir, how quick is error--how slow is the progress of truth in almost all things! Our stenographer must indeed be a wonder-working man, if he can revert this tide, and make every where light and correct reasoning prevail. The best mode of informing our constituents is, by the yeas and nays on our acts; this truly shows, as a gentleman from new Hampshire has observed, our doings, which are much more interesting to them than our abstract reasonings; these our constituents will easily form to themselves ideas of, when they know our votes; as the celebrated Dr. Johnson is said to have written speeches for members of Parliament whose general political sentiments he knew; by knowing these he applied arguments pretty accurately, as he supposed them to bear on every question offered. But, it has been observed, if we do not agree to have an official stenographer, a motion will be made to clear the House of those who now take down debates. These persons are tolerated only on the principle that our galleries are open. Woodfall, a celebrated printer, took down debates from memory: could we prevent this being done here? Or should we drive all printers from us who take notes, for the inaccuracies of some? I hope not. The liberty of the press has great title to respect. How can we agree by a miscellaneous union, the most strange, to commute with Mr. Brown, the printer, the salary of four thousand dollars, so as to possess him first of the proof-sheets, without supposing other printers will become rivals of this business, and complain if they are thwarted in an equal pursuit of their own livelihood? The best way is, to leave this business, like others, to regulate itself. Mr. Brown, by his labor in this way, has already widely extended the circulation of his paper--evident in his present overture--and, by the by, this is no mean proof of correctness on the whole in his success; he or others will still go on to improve the business, if left to themselves. If he or they fall into errors, they are their own. Members may correct them, or write their own speeches out, if they please. But what has the House to do with this; or why should it become the censor and promulgator of the speeches of its own members? Our time is wasted often, already, by too many long discussions on unimportant objects; but what would it be if we were to be every morning saluted with motions to correct the performances of the stenographers of the preceding day? All the advantage of the motion is to obtain more accuracy; but, it is said, the House means not to pledge itself for this accuracy: if so, why employ an officer under its authority for this purpose? On the whole, sir, we shall in vain seek to escape abuse and misrepresentation; these are by far too much in vogue. All the consolation left is, what I usually apply in such cases--that is, the consciousness of not deserving them. Mr. GILBERT was against the report. He thought the publication of the laws and the yeas and nays, a sufficient means to communicate the proceedings of the House. Mr. WM. LYMAN said that the debates in one of the newspapers (he either named or plainly alluded to the Philadelphia Gazette) had, for the two last sessions, been altogether exceptionable. He was sorry to learn, that these debates had been collected by a person who comes here, so that they would now, perhaps, descend to posterity. If they were as incorrect in the volume (the Political Register) as they were in the newspaper, they were a libel on that House, and would disgrace it with the world. If this resolution was rejected, it would be advisable to send all the printers to the gallery. Mr. KITCHELL was entirely against the object of the report. Mr. GILES said, that he might have taken up wrong impressions, but he thought the matter worth trying. It was a thing of experiment, by which he believed that the printer would make money. He acknowledged that, for some time past, several of the reports had been pretty correct. It is better to let them go out as they are, than to stop them altogether. He would not wish to press the motion, if it was to meet with opposition from several gentlemen who had this day spoken against it. He moved that the committee should rise, and the further consideration of the report be deferred till Monday. Mr. W. SMITH said, it was admitted on all sides, that it was highly important for the people to receive the most accurate information of the proceedings of the House, and that the debates were, in general, extremely misrepresented. Was it not, then, the duty of the House to remedy this evil, and to adopt such measures as would transmit to the people in every part of the United States the most accurate information of the conduct of their Representatives? The House had now an opportunity of obtaining the services of a gentleman peculiarly distinguished for the rare talent of reporting with accuracy public debates; the compensation which would be adequate to such useful and laborious service, was beyond the ability of any printer; the House ought therefore to contribute towards it; the sum required was a trifle, when compared with the advantages; it was no object. The only question, then, was, whether the stenographer ought to be an officer of the House; in that capacity he certainly would be more easily restrained from the commission of any wilful misrepresentation. Mr. S. did not feel the force of the objections against the report. It had been said that, although the members were now misrepresented, yet, they had it in their power to publish corrections; but these corrections were often overlooked, while the misrepresentation was operating very injuriously to the character of the member; this was generally the case in places remote from the seat of Government; the mangled account of a debate was republished in a distant paper, and the correction, if it reached the distant printer, was generally disregarded. Among the opponents to this report, Mr. S. said he was surprised to find the gentleman who represented this city, (Mr. SWANWICK,) who, more than any other member, should have withdrawn his opposition to the measure proposed; that gentleman's constituents had it in their power, at any time, to hear the debates of Congress; they were on the spot; ought he not, then, in candor, to assist in facilitating to the remote citizens the means of obtaining the best knowledge of the proceedings, and the most correct statement of the discussions of the House? Ought they, from their remoteness, to be kept in the dark, or to be furnished with such light as would only mislead? Had they not a claim on the House to adopt such means as would enable the citizens in every State to judge of the propriety of public measures? The member from this city had another exclusive advantage; if misrepresented, he could correct the error, and the correction would be read; that was not the case with the members from the remoter States, whose reputation might be injured by misrepresentation, without a similar advantage: the member from this city was in the midst of his constituents; he had daily opportunities of setting right any misstatement by personal explanation. Mr. SMITH said, he did not agree with some gentlemen, that it was sufficient for the people to know what laws were passed, without knowing the previous discussions; he thought, on the contrary, the favorable or unfavorable impression of a law on the public mind, would depend, in a great degree, on the reasons assigned for and against it in debate, and the people ought to know those reasons. When a law passes, imposing a tax, would not the people be reconciled if they saw, from the discussions of the House, that such tax was unavoidable, and that the particular mode of taxation was the best which could be devised? And ought this information to depend entirely on the caprice or convenience of the reporters, who attended when it pleased them, and who published just as much of the debate as they found leisure or patience to accomplish? Mr. S. said he was convinced that the errors which had excited so much complaint, were not the effect of design, but merely of inadequacy to the task. Very few were competent to such a business, which required peculiar skill in stenography, very laborious application, and a clear comprehension of the subject-matter of debate. It could not be expected that persons thus qualified would devote their whole time to this business, without an ample reward. The report was objected to because there was novelty in the plan; it was true the House of Commons of England had no such officer, but their practice was not a fit precedent for us on this occasion, for they admitted no person to write down, in the House, their proceedings; their debates were taken from memory. This House, on the contrary, had, from its first institution, facilitated, by every accommodation, the reporting their proceedings. The thing was not altogether, however, without precedent. During the existence of the National Assembly of France, there were officers of the House who composed a daily work called the Logography, which was an exact account of the debates of that body. It had been asked, what control the House were to have over this officer? He answered that the stenographer would be liable to be censured or displaced, if he should be guilty of wilful misrepresentation. It would be always easy to discriminate between a casual inadvertence and a criminal misstatement; the officer's character and talents, his responsibility to the House, and his oath to report with impartiality, would be a sufficient pledge of his accuracy. Mr. S. seriously believed that the character of the House had suffered from the erroneous statements which had gone abroad. He wished to guard against this evil in future; he was willing, for himself, that every syllable he uttered within those walls should be carried to every part of the Union, but he deprecated misrepresentation. He was anxious that the truth should be known in relation to every act of the Government; for he was as satisfied that the affection and confidence of the people in this Government would increase with the promulgation of truth, as that whatever it had lost of that affection and confidence, was owing altogether to the propagation of detraction and calumny. It was under these impressions that he had originally brought forward the proposition and that he now recommended the report, and having heard no reasons to change his sentiments of the expediency of the measure, he should persist in supporting it. The motion by Mr. GILES was agreed to. The committee rose, and, a few minutes after, the House adjourned to Monday. MONDAY, February 1. _Indian Trading Houses._ The engrossed bill for establishing trading houses for the Indian tribes was taken into consideration. The first blank was for the gross sum to be appropriated for the general objects of the bill. It was moved to fill this blank with $150,000. Mr. WILLIAMS spoke in favor of the bill. Mr. PARKER supported the general provision of the bill, and urged the necessity of an immediate attention to the subject. He calculated on a surplus in the appropriation for the War Department to provide for this object. Mr. HARPER moved that the bill should be recommitted. He then entered into a general consideration of the principles of the bill, which he reprobated altogether. Alluding to the general objects of commerce, he said that public bodies never manage these matters without loss. He adverted to the repairs of roads, construction of canals, &c.; all these objects prosper under private individual direction, but when entered into by public bodies nothing is ever brought to perfection, and the public money is lost. He applied these ideas to the plan of the bill. Persons at fifteen hundred or two thousand miles distance, are to be intrusted with public property to a large amount. It is not in human wisdom to guard against frauds and impositions; no check or control can be devised which will be found adequate to repressing private rapacity. Mr. H., therefore, wished the bill recommitted, for the purpose of an entire new modification. If the motion should obtain, he should then move a resolution providing for a loan to individuals for the purpose. Mr. SWANWICK supported the general principle of the bill, and reprobated the idea of loans to individuals; he considered such a plan as one of the worst kind of sinking funds. The plan is an experiment; it is not, perhaps, possible to predict what will be the result; but the object is worth the trial and worthy the attention of the Legislature. He considered the objections against the plan of the bill as applying with greater force against the proposed substitute. Mr. S. SMITH said, when the gentleman from South Carolina made his motion for a recommitment, he had supposed he would have accompanied the motion with some reasons; but since he had heard what he offered as reasons, he found himself confirmed in his opinion of the inexpediency of his motion. Mr. S. said, the only reason for the commitment was, that the principle of the bill might be changed, by individuals being substituted for the Government, that is, by loaning the money to private persons for the purposes of the trade. He was entirely opposed to this principle. Public debtors are the worst kind of citizens. These persons, after having expended or lost the money, will be coming forward with their petitions to be released from their bonds. He did not wish to increase the business of the Committee of Claims. Mr. SWIFT enlarged on the idea suggested by Mr. HARPER. He thought it infinitely preferable to leave the business to the enterprise and resources of individuals. Mr. HARPER rose in reply to Mr. SMITH. He entered into a further consideration and defence of the plan he had proposed as a substitute. Mr. DEARBORN objected to Mr. HARPER's idea; he saw no sufficient reason to support the preference that gentleman gave to a loan to individuals. He was in favor of the general principle of the bill; he thought it economical to appropriate money for the object of cultivating good understanding and harmony with the Indians, but should vote for the bill only on the condition of a reduction of the Military Establishment. Mr. GILES entered more largely into a consideration of the principle of the bill. He had no opinion of governmental bargains--he believed they always turned out losing bargains.[67] The clause which provides that the original stock shall not be diminished, he conceived, would operate against the general object of the bill, if adhered to; but this he did not contemplate; he supposed that it would terminate in an annual provision. Mr. G. alluded to the PRESIDENT's Speech, a clause of which had been recited; he did not consider that, or a former recommendation of this matter, as binding on the House. If the PRESIDENT's Speech is considered as the political Bible of the Government, the case is different; but he presumed no person was disposed to assert this. He considered the House as perfectly free to adopt or reject the proposition. With respect to the effects of the measure, gentlemen had differed in their predictions. Predictions which were the nearest to the effects produced, may be considered as the result of the greater political sagacity. He would venture to predict that the whole sum proposed to be appropriated would be sunk in three years. With respect to the fund contemplated from the surplus of the War Department appropriation, he considered it as altogether illusory; there is no such surplus, none had heretofore been found, and he presumed none ever would. For though the number of troops voted had never been raised, yet the whole of the money appropriated was always expended. Some further remarks were made by several members, and then the motion for recommitting the bill being put, was lost--52 to 34. Mr. SWIFT then renewed his motion for a postponement. This, after a few remarks from that gentleman, and a short reply from Mr. GILBERT, in support of the bill, was negatived. The motion for filling the blank with $150,000, was then put and agreed to, fifty-six members rising in the affirmative. On reading the section in which the blank for the penalty is included, Mr. VENABLE moved for a partial recommitment of the bill, for the purpose of new-modifying the section. This motion gave rise to a variety of observations, in the course of which the motion was extended to a general commitment. This motion being put, was lost. The motion then was, to recommit the second, fourth, and sixth sections. The second section was recommitted. The fourth section provides that the capital stock of the United States embarked in this business shall not be diminished. Mr. VENABLE's object was to have the section so modified as to blend the interest of the individual who is to conduct the business with that of the public. Mr. S. SMITH said the motion went to destroy the bill, for no person would engage in the business on such a plan. The motion for committing the fourth section was lost. The sixth section assigns the sum of $150,000 to be appropriated for the general objects of the bill. The motion to recommit this section was negatived. The House then resolved itself into a Committee of the Whole on the second section, Mr. MUHLENBERG in the chair. Mr. VENABLE moved that the section should be altered to read, that the agent should give bonds to the amount in value of the goods committed to his charge. Mr. J. SMITH supposed that the sum should be sufficient to cover the amount of the goods which may at any time be found in the hands of the agents; from ten to fifteen or twenty thousand dollars, he supposed, might be sufficient for this purpose. Mr. DEARBORN suggested the idea of leaving this part of the business to the PRESIDENT OF THE UNITED STATES. He moved to amend the clause accordingly. Mr. VENABLE's motion was lost. Mr. DEARBORN's motion was agreed to. The committee then rose, and the Chairman reported the amendment, which was adopted by the House. It was then ordered that the bill be again engrossed and read the third time to-day. [The bill was subsequently read a third time and passed--58 members rising in the affirmative.] TUESDAY, February 2. The following Message was received from the PRESIDENT OF THE UNITED STATES: _Gentlemen of the Senate, and of the House of Representatives:_ I transmit herewith the copy of a letter, dated the 19th of December last, from Governor Blount to the Secretary of War, stating the avowed and daring designs of certain persons to take possession of lands belonging to the Cherokees, and which the United States have, by treaty, solemnly guaranteed to that nation. The injustice of such intrusions, and the mischievous consequences which must necessarily result therefrom, demand that effectual provision be made to prevent them. G. WASHINGTON. UNITED STATES, _February_ 2, 1796. The said Message and letter were read, and ordered to be referred to the Committee of the whole House, to whom is committed the bill to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers. WEDNESDAY, February 3. LEMUEL BENTON, from South Carolina, appeared, was qualified, and took his seat. MONDAY, February 8. _Compensation of Members._ The House resolved itself into a Committee of the Whole, on the bill for allowing a compensation to the members of both Houses, which proposes an annual salary of one thousand dollars to each member, instead of six dollars per day. Mr. GILES moved that the word "annually" be expunged from the bill. He thought the present mode of compensating the members of the Legislature a good one, and could not conceive why an alteration should be made. Such a mode of payment as was now proposed ought to be sanctioned only upon the maturest deliberation. Mr. GOODHUE explained the reasons which induced the committee to propose an annual instead of a daily payment to members, which was, that members might be induced to greater despatch in business, and to do away an idea which had gone abroad amongst many people, that, being paid by the day, the members of that House protracted their session to an unreasonable length. Mr. GILES thought there ought to be no pecuniary inducement to members to push forward business in too rapid a manner, or to shorten their sessions. An annual salary would doubtless have this effect, and business, in consequence, would most certainly be neglected. It would be an evil of the greatest importance; it would be a constant temptation to members to neglect their duty; it would tend to embarrass all their deliberations. Indeed, it was a perfectly new mode of requiting Representatives, and would be supposed to be introduced for the purpose of advancing their pay--an idea which he did not wish to prevail, as he thought the present allowance sufficient. He therefore hoped the principle would not be agreed to. Mr. SWANWICK was against the bill, and said, that to pay members in the way proposed would be to offer them a bounty to neglect the business of the Legislature. Mr. HILLHOUSE was in favor of the bill. He said, that the constitution had provided that Congress should meet once a year, and that more time was spent during their sitting than was taken up by the Circuits of the Judges. Yet the Judges had a salary allowed them, and it was not found to have any bad effect. Complaints are now made out of doors that their sessions are protracted for the sake of the daily allowance paid to them. Persons who said this, said he, do not know that we are all the time deeply engaged in business, which is much lengthened by clashing interests of different States. A yearly salary would do away this idea, without making any real difference in the amount paid by the Treasury for their services. If he thought the mode of payment would cause members to neglect their duty, as has been observed, he too would be against the adoption of it; but surely it cannot be supposed that members would not sit as long as business should require them. He observed, they had now been in session two months, and but very little important business had been done. He thought the mode proposed would tend to remedy this evil: it was an experiment at least worth trying. Mr. FINDLAY did not object to the bill merely as a novelty, but because it offered no advantage. Many persons, no doubt, would think one thousand dollars a year too much; but he believed it best for members to do their duty, without regarding the misapprehensions and prejudices of they know not whom. He did not think the pay of members influenced their sittings. The greatest difficulty, towards the close of the session, was to keep members together. If, indeed, members would attend better at the beginning of a session, and take up less time in speaking, sessions might be shorter; but there must, however, be full liberty given to every member to express his sentiments in his own way. No law can regulate people's conceptions. He thought it best that the members should be paid by the day. He should never boast of passing laws in a short time, but of passing good laws. Mr. NICHOLAS was in favor of the present mode of compensating members, as the period of their sessions was uncertain, and wherever salaries were paid, they were for certain business. Give members one thousand dollars, and he did not doubt but some of them would wish to return home sooner than if they had been paid in proportion to the time spent in business. Water, though insensibly, wears away stones; and such an influence, he feared, would have a tendency to undermine the integrity of members. It was better to be slow than too hasty in business. He hoped this bill would not pass as an experiment, for the effect must be corruption; and when once this enemy of all governments is suffered to take root, it is difficult to eradicate it. Indeed, this bill would be supposed by many as a cover to advance the pay of members. If there were any such view, he wished members to propose the measure openly. He thought the present pay too much, and if the people thought it influenced the length of their sittings, they were of the same opinion. Mr. WILLIAMS was against the bill, though he believed it to be brought in by the committee from the best of motives. It was their opinion it would shorten the sessions, and, if carried into effect, it might do so. If our wages were lowered, the measure would shorten our sessions. Every penny beyond expenses is too much: a medium salary was desirable. If the pay of members was increased, officers of Government will do the same. At present, it was true, all the necessaries of life were at a high price; but when the war in Europe ceases, the case will be different. Whenever we adjourn our sessions, (said he,) much business is necessarily left unfinished; and if members were paid by the year instead of by the day, all those whose business was not completed would be ready to say that members were hastened away to enjoy their salary at home. Mr. SEDGWICK did not think the business before the House important. He was inclined, however, to favor the bill, not that he would grant a larger amount in that way than the amount of the present allowance per day. The argument of novelty, he said, would not apply: we are in the business of experiment. He would observe a fact well known, that every member in the House was deprived of the opportunity of pursuing his occupations at home, and of the emoluments arising therefrom, by his attendance to public business. He did not believe a yearly allowance would shorten the sessions, but it would remove the charge brought against members of protracting the sessions for the sake of their pay. Whether it is necessary to increase or diminish the present pay is not the question. Mr. LIVINGSTON expected stronger motives for the bill than he had heard. It is acknowledged a perfect novelty. This, though by no means decisive, is an objection against the measure, and there is nothing else to recommend it. It has, indeed, been said, it will shorten our sessions; but would this be a benefit? If to continue in session be an evil, why are we here? If it could have been proved that expense would have been saved by the measure, that would have been a real advantage; but this has not been hinted at. It has, indeed, been said, it will remove from our constituents a suspicion that we are living here too long. It has been said, that an idea has gone abroad that we receive six dollars a day through the year. Few, he believed, were so ill informed; but this bill, if passed, will cause much more discontent than the present pay occasions. Deliberation in a Legislative body is necessary. The dearest interests of the people, he said, were committed to their charge, and he trusted they would watch over them, and never suffer them to be injured; and then, it was his opinion their constituents would not think much of their pay. Mr. BALDWIN said, that it was a disagreeable business to be employed in discussing the subject of paying themselves for their services: it would be a desirable thing to supersede the necessity of doing so. The committee doubtless thought one thousand per annum would be an improvement upon the present mode of paying members, but he could not think so. He thought it best that the allowance should be paid in the old way. Mr. GILBERT was willing to try the experiment of the bill proposed. He did not believe that either the present daily allowance lengthened, or that an annual salary would shorten, the sessions. He thought to say the contrary was a base insinuation. Mr. BOURNE never heard it was the wish of their constituents that their payment should be annual instead of per day. He had heard it complained that their pay was too high; but now, since the price of living is so much advanced, he believed the people were satisfied. He saw no advantages from the proposed change. It cannot be thought that the pay is an inducement to members to prolong their sessions: he had not heard such a complaint. He was in favor of striking out the word "annually," and for recommitting the bill. Mr. MADISON observed, that the present bill proposed no alteration with respect to the amount of money to be drawn from the Treasury, and it can make but little difference to members. What had been mentioned as the advantages of this bill, in his opinion, would operate against it. A novelty, he said, always called for hesitation. Mr. SWANWICK thought, if they enacted good laws--laws that should encourage agriculture and commerce--their constituents would not trouble themselves about their salary. Mr. GILES rose to remark upon an expression which fell from Mr. GILBERT, viz: that, to say members were likely to be influenced by the proposed salary, was a vile insinuation. He declared that it was a recommendation of the bill in the committee, that it would tend to shorten their sessions. Mr. GILBERT explained, and justified the expression. The motion for striking out the word "annually" was called for, and passed.[68] TUESDAY, February 9. FISHER AMES, of Massachusetts, appeared, was qualified, and took his seat. THURSDAY, February 11. _Post Roads from Maine to Georgia._ Mr. MADISON moved that the resolution laid upon the table some days ago be taken up, relative to the survey of the post roads between the province of Maine and Georgia; which, being read, he observed that two good effects would arise from carrying this resolution into effect; the shortest route from one place to another would be determined upon, and persons, having a certainty of the stability of the roads, would not hesitate to make improvements upon them. Mr. BALDWIN was glad to see this business brought forward; the sooner it could be carried into effect, the better. In many parts of the country, he said, there were no improved roads, nothing better than the original Indian track. Bridges and other improvements are always made with reluctance whilst roads remain in this state, because it is known as the country increases in population and wealth, better and shorter roads will be made. All expense of this sort, indeed, is lost. It was properly the business of the General Government, he said, to undertake the improvement of the roads, for the different States are incompetent to the business, their different designs clashing with each other. It is enough for them to make good roads to the different seaports; the cross roads should be left to the government of the whole. The expense, he thought, would not be very great. Let a surveyor point out the shortest and best track, and the money will soon be raised. There was nothing in this country, he said, of which we ought to be more ashamed than our public roads. Mr. BOURNE thought very valuable effects would arise from the carrying of this resolution into effect. The present roads may be much shortened. The Eastern States had made great improvements in their roads, and he trusted the best effects would arise from having regular mails from one end of the Union to the other. Mr. WILLIAMS did not think it right for the revenues of the Post Office to be applied to this end. He acknowledged the propriety of extending the post roads to every part of the Union; he thought the House had better wait for the report of the committee to which business relative to the Post Office had been referred, which was preparing to be laid before the House. Mr. MADISON explained the nature and object of the resolution. He said it was the commencement of an extensive work. He wished not to extend it at present. The expense of the survey would be great. The Post Officer, he believed, would have no objection to the intended regulation. After some observations from Mr. THATCHER, on the obtaining of the shortest distance from one place to another, and the comparing old with new roads, so as to come at the shortest and best, the resolution was agreed to, as follows: _Resolved_, That a committee be appointed to report a bill authorizing the PRESIDENT OF THE UNITED STATES to cause to be examined, and, where necessary, to be surveyed, the general route most proper for the transportation of the mail between ----, in Maine, and ----, in the State of Georgia, and to cause to be laid before Congress the result of such examination and survey, with an estimate of the expense of rendering such route fit, in all its parts, to be the established route of the post; the expense of such examination and survey to be defrayed out of the surplus revenues of the Post Office.[69] _Ordered_, That Mr. MADISON, Mr. THATCHER, Mr. BALDWIN, Mr. HENDERSON, and Mr. SHERBURNE, be appointed a committee pursuant to the said resolution. MONDAY, February 22. _Washington's Birth-Day._ Mr. W. SMITH moved that the House adjourn for half an hour. This motion occasioned a good deal of conversation upon its propriety. In favor of it, it was said, that it had been a practice ever since the commencement of the Government, for that House to make a short adjournment on that day in order to pay their compliments to the PRESIDENT, and that several members were absent, from an idea that the House would adjourn at 12 o'clock as usual. On the other hand, it was objected that it was the business of the members of that House first to do their duty, and then attend to the paying of compliments; that just at that time the house of the PRESIDENT was filled with militia and others; and that, therefore, it would be better, upon the whole, to wait upon the PRESIDENT after the business of the day was finished. Mr. GALLATIN moved that the words "half an hour" be struck out. The sense of the House was first taken on the amendment, which was lost, without a division. The motion was then put and negatived, being 38 for it, and 50 against it. FRIDAY, February 26. _Compensation to Members._ Mr. GILES moved that the bill for allowing compensation to the members of the Senate and House of Representatives, and certain officers of both Houses, be taken up, which being agreed to, the House resolved itself into a Committee of the Whole; and the bill being read, Mr. SWIFT wished to strike out the words making the Speaker a greater allowance than other members. Mr. GILES thought a larger allowance ought to be made to the Speaker than to other members, as his duty was double that of any other member; but if gentlemen wished to do away the incidental expenses of the office, he had no objection. Mr. SWIFT consented to vary his motion according to the ideas of the member from Virginia. If the Speaker had more duty to perform than other members, he should be willing to make him a greater allowance, but he doubted it. Mr. W. SMITH hoped no alteration would be made in the allowance heretofore made; he saw no reason for it. Mr. GOODHUE said, he voted against the additional pay allowed the Speaker when the act first passed, as he saw no necessity for the Speaker to give dinners to the members of that House; but though he objected to this, he was willing to allow him recompense for his additional services. He hoped, however, the gentleman who now so ably filled the office, would not consider any thing said on this subject as alluding personally to him. Mr. SEDGWICK was willing to give the money to the Speaker which had heretofore been paid him, and for the same purpose, although he and his colleague were both against the measure when it originally passed. Mr. DAYTON wished the business might be discussed without reference to him personally. Indeed he believed he should not be materially affected by any regulations which might be agreed to, as, if he might judge by his present feelings, his health would not permit him to remain in the chair after this session. Mr. GILES was confident that no one meant to hurt the feelings of the gentleman who now filled the chair. The member from Massachusetts had said, when the measure passed, he was against it, but now he was in favor of it. He could see no ground for this change of sentiment. Mr. G. said, he was against the money being paid for incidental expenses, but not against making the Speaker ample allowance for his services. Mr. KITCHELL was also for striking out the words, but for making ample compensation to the Speaker. Mr. BOURNE did not suppose that the incidental expenses of the Speaker were confined to the dinners which he gave them; he was put to more expense in receiving company than other members. He did not think six dollars a day too much for this. Mr. MADISON said, it was customary in all the State Governments to make the Speaker a greater allowance than other members: his services were far greater; they were uninterrupted. Besides, it was necessary to do so to invite men of talents to accept of the office; and every one knew the advantages arising from having a man of talents as Speaker. Without inquiring whether the compensation was too large or too small, he doubted whether it was constitutional to make any alteration in it which might affect the present Speaker. To support his opinions he read a clause of the constitution. Mr. HILLHOUSE was of opinion that nothing in the constitution extended to the present question. He hoped they should agree to strike out the words alluded to, as the sooner the practice of feasting was abolished, the better. If members wished to form social acquaintances, it was far preferable to visit each other at their lodgings. He said, this was the first time the law had come under review since it had passed, and it was proper to have the matter settled. He wished to allow a reasonable sum for the services of the Speaker, but no more. He did not think there was any weight in the observation, that a large compensation was necessary to induce men of talents to accept of the chair--he thought the honor was a sufficient inducement. Mr. WILLIAMS said there was no office appertaining to the Speaker which included expense; the words ought therefore to be struck out. Mr. PAGE was in favor of striking out the words, as he did not understand their meaning, but in favor of keeping the allowance of the Speaker the same as usual. The Speaker, he said, ought to be placed in an independent situation, by a handsome salary. His duties were fourfold to those of any other member. Indeed, said he, nothing but a sense of duty could induce a man to undertake such an office. Mr. GILES said, if it was agreed to strike out the words _for the incidental expenses of his office_, he should move to introduce in their place, "_on account of extra services annexed to his office_." Mr. JEREMIAH SMITH liked the words proposed better than those in the bill, but did not think it of the importance it was made. The motion for striking out was put and carried. Mr. GILES then proposed his motion. Mr. HILLHOUSE was against the introduction of these words. Mr. VARNUM hoped the motion would prevail. The services of the Speaker are extraordinary and laborious. The State Legislatures, he said, always allowed their Speaker double the pay of other members. Mr. MURRAY hoped the words would not obtain. He considered the Speakership of that House as a very elevated situation. In certain contingencies he believed he was the Chief Executive of the United States. He thought the calculation of pay too mechanical. The dignity of the office was sufficient, without extraordinary compensation; the duties of it were well known. The question was put, and negatived. Mr. GILES moved to fill up the blank for the daily allowance of members of the Senate with six dollars. Mr. PAGE proposed seven; when, after a few observations from Mr. WILLIAMS in favor of six, the sense of the House was taken, which was in favor of six dollars--only twenty-one members rising in favor of seven. The allowance of the Speaker again coming into consideration, Mr. SWIFT wished an inquiry might be made into the duties of the office. It was his opinion that many members upon committees performed greater services than he; and if the Speaker had an extra allowance, they ought to have an extra allowance also. Some gentlemen thought, on the score of dignity, a high salary ought to be paid. He thought differently. Can it be supposed it would be necessary, said he, to give any member of this House double pay to accept of the office? No such thing. Being now discharged from any obligation to treat members, he could not agree to allow him the usual sum. He should not object to two or three dollars a day extra, but no more. Mr. GILES thought the duty of the Speaker three times as arduous as that of any other member of the House. Mr. CRABB voted for striking out the words, but he was not for diminishing the salary of the Speaker. The motion for the usual allowance was put and carried, and the other blanks of the bill were filled up with the same sums as heretofore allowed to the different officers. The committee rose; the bill then went through the House, and was ordered to be engrossed and read a third time on Monday. MONDAY, March 7. _The Treaty with Great Britain._ [The debate on the subject of the Treaty with Great Britain, and of the constitutional powers of the House with respect to treaties, having occupied the time of the House nearly every day for a month, (commencing the 7th of March and ending on the 7th of April,) it is deemed preferable, and as being more acceptable to the reader, to present the whole in one body consecutively, rather than to spread it in detached parts intermixed with other subjects, through the general proceedings of each day. This debate, as here given, possesses a character for authenticity and correctness which does not belong to the newspaper reports of the day, it having undergone the careful revision of the Speakers themselves. The debate which took place on making the provision for carrying the Treaty into effect, will be found subsequently, in the proceedings of each day as the subject came up before the House.][70] On the second of March, Mr. LIVINGSTON, after stating that the late British Treaty must give rise in the House to some very important and constitutional questions, to throw light upon which every information would be required, laid the following resolution upon the table. "_Resolved_, That the President of the United States be requested to lay before this House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, communicated by his Message of the first of March, together with the correspondence and other documents relative to the said Treaty." MARCH 7.--Mr. LIVINGSTON said he wished to modify the resolution he had laid on the table, requesting the PRESIDENT to lay before the House sundry documents respecting the Treaty. It was calculated to meet the suggestions of gentlemen to whose opinions he paid the highest respect, and was founded in the reflection that the negotiations on the twelfth article were probably unfinished; and therefore, he said, a disclosure of papers relative to that or any other pending negotiation, might embarrass the Executive. He wished, therefore, to add, at the end of his former motion, the following words: "Excepting such of said papers as any existing negotiation may render improper to be disclosed." The motion of Mr. LIVINGSTON was then taken up. Mr. TRACY requested gentlemen in favor of the resolution to give their reasons why the application for papers was to be made. Mr. LIVINGSTON said, he had no wish to conceal his intentions. The motives that impelled him to make the motion, were not such as to make him wish to conceal them, or such as he ought to blush at when discovered. The gentleman from Connecticut wished to know why he had brought this resolution before the House? He did it for the sake of information. That gentleman wished to know to what point this information was to apply? Possibly to all the points he had enumerated. It was impossible, however, to say to which or how many of these points without a recurrence to those very papers. He could not determine now, he said, that an impeachment would be deemed advisable; yet, when the papers are obtained, they may make such a step advisable. It was impossible to declare an impeachment advisable, without having the necessary lights as to the conduct of officers. The House were, on every occasion, the guardians of their country's rights. They are, by the constitution, the accusing organ of the officers employed. The information called for they ought to possess, as it would tend to elucidate the conduct of the officers. His principal reason, however, for proposing the measure, was a firm conviction that the House were vested with a discretionary power of carrying the Treaty into effect, or refusing it their sanction. Mr. MURRAY said, that he was against the resolution for two reasons, which then struck his mind forcibly. The first was the want of a declared object within the acknowledged cognizance of the House; the other was because he believed it was designed as the groundwork of a very dangerous doctrine, that the House had a right to adjudge, to adopt, or to reject Treaties generally. Had the gentlemen stated the object for which they called for the papers to be an impeachment, or any inquiry into fraud, as a circumstance attending the making of the Treaty, the subject would be presented under an aspect very different from that which it has assumed. He considered a Treaty, constitutionally made, to be the supreme law of the land. The Treaty in view has been negotiated and ratified, he thought, agreeably to the constitution. It has been issued, by the PRESIDENT's proclamation, as an act obligatory upon the United States. If the House mean to go into the merits of that instrument, and the information be called for with that view, he should feel himself bound by the constitution to give it every opposition. Mr. BALDWIN thought the resolution so unexceptionable that he had expected it would have been agreed to without debate. The PRESIDENT has sent the House the Treaty; petitions have come forward on the subject; the House must act in the business. It is yet unaccompanied with any documents to throw light upon it. No person concerned in the negotiation has a seat on the floor of the House; so that no oral information can be expected. Implicit faith was not to be reposed, he imagined, in public officers. It would be unfair to take up the subject naked and unexplained. Mr. GALLATIN said, he should not now enter into the merits of the question, but merely state that pertain powers are delegated by the constitution to Congress. They possess the authority of regulating trade. The Treaty-making power delegated to the Executive may be considered as clashing with that. The question may arise, whether a Treaty made by the PRESIDENT and Senate, containing regulations touching objects delegated to Congress, can be considered binding, without Congress passing laws to carry it into effect. A difference of opinion may exist as to the proper construction of the several articles of the constitution, so as to reconcile those apparently contradictory provisions. But all those questions would occur in future discussions. What is now wanted is information on the subject, to elucidate the different views which may be taken of the Treaty. It must do good to obtain it, and could do no harm to ask for it. If it would be improper to communicate any part of the information on the subject, the PRESIDENT will say so. He had hoped, he said, that the resolution would have passed without objection. He concluded by observing, that the House were the grand inquest of the nation, and that they had the right to call for papers on which to ground an impeachment; but he believed, that if this was intended, it would be proper that the resolution should be predicated upon a declaration of that intention. At present, he did not contemplate the exercise of that right. Mr. MADISON admitted that every proposition, however distantly related to a question on the Treaty, drew from the importance of that subject considerable importance to itself. In a discussion of this subject, he felt strongly the obligation of proceeding with the utmost respect to the decorum and dignity of the House, with a proper delicacy to the other departments of Government, and, at the same time, with fidelity and responsibility for our constituents. The proposition now before the House, he conceived, might be considered as closely connected with this important question. It was to be decided whether the general power of making Treaties supersedes the powers of the House of Representatives, particularly specified in the constitution, so as to take to the Executive all deliberative will, and leave the House only an Executive and ministerial instrumental agency? Mr. SMITH (of South Carolina) said, that he had listened attentively to the reasons advanced in favor of this resolution, and that he had heard nothing to convince him of its propriety. The PRESIDENT and Senate have, by the constitution, the power of making Treaties, and the House have no agency in them, except to make laws necessary to carry them into operation; he considered the House as bound, in common with their fellow-citizens, to do every thing in their power to carry them into full execution. He recognized but one exception to this rule, and that was, when the instrument was clearly unconstitutional. In this case, he remarked, it had not been said that the Treaty was unconstitutional. When the resolution was first brought forward, it had indeed been observed, that the discussion might involve certain constitutional points, and, therefore, the papers called for by the resolution were necessary; but it was obvious, the question of constitutionality should be determined from the face of the instrument, and that a knowledge of the preparatory steps which led to its adoption, could throw no light upon it; that ground was therefore abandoned even by the friends of the resolution, and others were resorted to. He was surprised that gentlemen who displayed such zeal for the constitution should support a proposition, the tendency of which went indirectly to break down the constitutional limits between the Executive and Legislative Departments. The constitution had assigned to the Executive the business of negotiation with foreign powers; this House can claim no right by the constitution to interfere in such negotiations; every movement of the kind must be considered as an attempt to usurp powers not delegated, and will be resisted by the Executive; for a concession would be a surrender of the powers specially delegated to him, and a violation of his trust. The proposition calls upon the PRESIDENT to lay before the House the instructions given to Mr. Jay, and the correspondence between him and Lord Grenville; and for what purpose? Is this House to negotiate the Treaty over again? Has the constitution made this House a diplomatic body, invested with the powers of negotiation? Is not this House excluded? for, if the maxim that "the expression of one is the exclusion of another," applies to this case, the assignment of the Treaty-making power to the PRESIDENT and Senate, is a manifest exclusion of this House. This call, then, on the PRESIDENT, is an attempt to obtain indirectly what the constitution has expressly assigned to others. After Mr. S. had sat down, it was moved by Mr. GILES, to take the resolution up in Committee of the Whole for the purpose of more ample discussion. This motion was agreed to; sixty-one members rising in the affirmative. The House immediately resolved itself into a Committee of the Whole, on the resolution. Mr. NICHOLAS remarked, that the member from Connecticut, first up, when inquiring for the reason of a call for papers, had suggested two. The one, relating to the merits of the instrument; the other, an inquiry into the conduct of officers concerned. On the latter ground, gentlemen conceded that the House had a right to require the papers, and yet seemed willing to adhere to that, on which they conceived a call could not be, with propriety, grounded, as the one that influenced the conduct of the friends to the resolution. All gentlemen admitted, that the House had the superintendence over the officers of Government, as the grand inquest of the nation; but persisted that the resolution calling for papers, if intended for the purpose of exercising that authority, must be predicated on an expression of the intention. He took a view of the prominent features of the arguments of the members up before him. It had been said that, if the power of the PRESIDENT and Senate, as to Treaties, was complete, then the House had no right to claim a participation; this could not be denied; but the question was, whether the Executive had that right unqualifiedly, in all cases. In the present case, he contended, the House had a voice. To elucidate: Suppose that, in the constitution of the United States, which has been so guarded about the expenditure of money, a clause had been inserted, positively declaring that the House have a control over the money matters stipulated in a Treaty; would not this constitute a qualification of the powers of the PRESIDENT and Senate with respect to Treaties? The constitution, on this head, he contended, though less explicit than his supposed case would make it, was not the less positive, if tested by all the fair rules of construction; and if compared with the practice of the government from which we had borrowed, with many other matters, this part of our constitution. In England, the country alluded to, their House of Parliament had exercised a control over the moneyed articles of Treaties; and he contended, the House of Representatives had an equal authority here, as chief guardians of the purse-strings. It was unnecessary, at this time, he said, to touch on the other parts of the Treaty which clashed with the constitutional powers of the House. He again adverted to the power of control that the House of Commons have over Treaties; and contended, that that provision of the British constitution had been accurately copied in our own with this deviation only, that the Senate have the power of making amendments to money bills here, which the House of Lords there have not. He could show, from the best authority, the acknowledgment of the British Crown officers themselves, that the Parliament has a right to discuss and decide on Treaties which involved moneyed stipulations. The same power, he argued, resided in the House here; for shall it be said, that we have borrowed only the form from Great Britain, and not touched the substance? Shall it be said, that the House have a discretion as to appropriations, and yet they must make them as directed by a Treaty? If the House have no discretion to use in the business, they are the most unfit body to regulate money-matters; for complete regularity in so large a body must be one of the least of their valuable properties. But, with the power of appropriating money, the House have certainly the right to judge of the propriety of the appropriation. The constitution explains itself fully on this head. He instanced the specific power in the constitution, with respect to appropriations for the army, to explain from that instrument its meaning in other parts. The constitution says, that no appropriations for the support of armies shall be for more than two years; this is, no doubt, that the House may periodically have before them the question of the propriety of supporting an armed force, with all its consequences, and that they may, by refusing or granting an appropriation, determine on its existence. The power thus cautiously lodged must have been for some purpose, and that he had suggested could alone explain this clause of the constitution. This will show what was expected of this House in appropriating money; that they should judge of the usefulness of the expenditure. In the case of the army, the constitution does not say that we may disband an army by withholding money; but for the purpose of investing us with the same power, only requires that the appropriation should recur every two years; taking it for granted, that in this as well as in every other Legislative act, we will duly weigh every consequence. Having thus explained from the constitution itself the true meaning of this power of appropriation, he proceeded to elucidate it by a reference to the practice of the Government. He found an instance in the permanent appropriations made for the payment of the public debt. If the House in this and analogous cases, could exercise no discretion as to appropriations, why this permanent provision, in preference to an annual appropriation? The permanency of the provision took its rise from the idea, that the House possessed a discretionary power as to appropriations. Thus, he had shown that the practice of the Government, the provisions of the constitution, and the example of the British, from whom we had exactly copied the control over money transactions, all proved a discretion in the House as to appropriations. This must be considered as a sufficient answer to the gentleman from South Carolina, when he said, that the PRESIDENT and Senate possessed the Treaty-making power; for they possessed it with qualification, in matters of money; and unless the House chose to grant that money, it was so far no Treaty. It was said, that if the Treaty was not the law of the land, the PRESIDENT should be impeached for declaring it as such. Parts of the Treaty the PRESIDENT and Senate had, no doubt, a right to make without any control of the House--those parts he might be considered as proclaiming; he proclaims it, limited as his authority, and under the qualifications provided by the constitution. It was said, that no instance of such a call as that now contemplated could be produced. No; nor of such a Treaty, he answered. Mr. SWANWICK expressed his sense of the importance of the subject before the House, and the pleasure which he experienced at observing the calmness and temper with which the discussion had been carried on. He had not conceived, however, that the decision of the present question involved the sense of the House as to the merits of the Treaty; the object of the resolution was only to obtain that knowledge necessary for an enlightened decision; it had been observed, that the Treaty had been censured by assemblages of people with precipitancy, and without proper information. They did this on the best information that could by them be obtained. But if the House should go into a Committee of the Whole, to take into consideration the Treaty, without obtaining all the information in their power, they would be justly to blame. He adverted to the constitution; according to that instrument, the Legislative power is completely vested in Congress. By the 8th section of the 1st article, not only a certain specification of powers are granted to Congress, to lay and collect taxes, regulate commerce, &c., but the very extensive further power, not only to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, but, also, all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. If, then, Congress have the power to pass laws to carry into execution all powers vested by the constitution in the Government of the United States, or in any department or officer thereof, how is it possible that there can be any authority out of the purview of this general and extensive Legislative control? Is the Treaty-making power not a power vested by the constitution in the Government of the United States, or in a department or officer thereof? If it is, is the conclusion not obvious, that Congress have power to pass laws for carrying these powers into effect? But in the power to pass laws, discretion is necessarily implied; of course, this House must judge when it is to act; whether it will, or will not, carry into effect the object in question. It is a power, it is true, of great delicacy and responsibility, but it is not less a power constitutionally given. The member from South Carolina construed this part of the constitution in a different way, and insisted that, as the PRESIDENT and Senate had the power of making Treaties, the House were divested of the right of exercising their judgment upon the subject. If this doctrine prevails, to what a situation would the Representatives of a free people be reduced? The constitution especially gives them the power of originating money bills; but to what purpose would this power be granted, if another authority may make a contract, compelling the House to raise money? Suppose that authority were in this way to grant millions upon millions, must the House, at all events, be compelled to provide for their payment? In this case the House become mere automatons, mere mandarine members, like those who nod on a chimney-piece, as directed by a power foreign to themselves. Great stress is laid upon the constitution declaring Treaties laws of the land. This article has often been quoted partially, but not at large. It is in these words: "This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Had the clause stopped here, there might have been some plea for the gentlemen's doctrine; but, unfortunately for them, the article goes on to say: "And the Judges in every State shall be bound thereby, any thing in the constitution or laws of any State, to the contrary notwithstanding." Hence, it is obvious that the supremacy of the law is over the constitution and laws of the separate States, which was necessary to prevent these interfering with those. But it does not affect the powers of this House, as a component part of the General Legislature, and authority of the United States. It is also worth while to notice the gradation in the article. First. This constitution. Secondly. The laws which shall be made in pursuance thereof, clothed with the highest sanction of the nation, the consent of the three branches. Thirdly. Treaties. How absurd the doctrine, then, that these last, third in order, can repeal the second: at that rate, all power whatever would remain vested in two branches only of the Government; the third, with all its powers of originating bills for raising revenue, would be dwindled into a mere board of assessors. The gentleman from Vermont said, yesterday, that if the PRESIDENT and Senate were to make a Treaty, and that House were to refuse to make due appropriations for carrying it into effect, it would become a nullity, and no foreign nation would in future treat with such an uncertain Government. Mr. S. observed, that that gentleman would probably be surprised, when he was told, that the British House of Commons possesses the same power which he reprobates in the Legislative Assembly of the United States. This, Mr. S. proved, by reading the King's Speech to both Houses of Parliament, in which he informs them of this Treaty, and promises to lay it before them when ratified, in order that they might judge of the propriety of making provision to carry it into effect. What, judge of the propriety of passing laws to carry into effect a Treaty ratified! And shall it be said, exclaimed he, that the Representative Assembly of the United States does not possess a privilege enjoyed by an English House of Commons! He hoped not. Mr. HARPER said, that it had not been his intention to trouble the committee, in this stage of the debate at least; nor should he now depart from his resolution on that head, had he not observed that the discussion was turning more and more on points, which it appeared to him unnecessary to decide. He did not conceive that the powers of the House respecting Treaties were necessary to be considered; the question appeared capable of a satisfactory decision on different grounds. When the motion was first proposed, he thought it innocent at least, and was in doubt whether it might not be proper, because he was in doubt how far these papers might be necessary for enabling the House to exercise that discretion on the subject of Treaties, which he admitted it to possess; but on a more accurate and extensive view of the subject, and after carefully attending to the discussion which had already taken place, he was thoroughly persuaded that these papers were no way necessary, and, that being unnecessary, to call for them was an improper and unconstitutional interference with the Executive department. Could it be made to appear that these papers are necessary for directing or informing the House on any of those Legislative questions respecting the Treaty which came within its powers, he should propose to change the milk-and-water style of the present resolution. The House, in that case, would have a right to the papers; and he had no idea of requesting as a favor what should be demanded as a right. He would demand them, and insist on the demand. But, being persuaded that no discretion hitherto contended for, even by the supporters of the resolution themselves, made these papers necessary to the House, to call for them would be an unconstitutional intermeddling with the proper business of the Executive. It had been said, that this motion was of little consequence; that it was only a request which might be refused, and that the privileges of that House were narrow indeed, if it could not request information from the Executive department. But it would be observed, he said, that requests from bodies like that, carry the force of demands, and imply a right to receive. Legislative bodies often make the most formidable expressions of their will in the shape of requests. It would be further observed, that an honorable member from Pennsylvania, (Mr. GALLATIN,) after declaring that this indeed was only a request which might be refused, had added, that in case it were refused, it would then be proper to consider how far we ought to make the demand, and insist on receiving these papers as a matter of right. After this avowal of the system, after this notice that the present request is no more than a preliminary measure, a preparatory step, and in case of a refusal, is to be followed up by a demand, could it be wondered that they who think the measure improper, should oppose it in the threshold? Mr. GALLATIN conceived that, whether the House had a discretionary power with respect to Treaties, or whether they were absolutely bound by those instruments, and were obliged to pass laws to carry them fully into effect, still there was no impropriety in calling for the papers. Under the first view of the subject, if the House has a discretionary power, then no doubt could exist that the information called for is proper; and, under the second, if bound to pass laws, they must have a complete knowledge of the subject, to learn what laws ought to be passed. This latter view of the subject, even, must introduce a discussion of the Treaty, to know whether any law ought to be repealed, or to see what laws ought to be passed. If any article in the instrument should be found of doubtful import, the House would most naturally search for an explanation, in the documents which related to the steps which led to the Treaty. If one article of the Treaty only be doubtful, the House would not know how to legislate without the doubt being removed, and its explanation could certainly be found nowhere with so much propriety as in the correspondence between the negotiating parties. Gentlemen had gone into an examination of an important constitutional question upon this motion. He hoped this would have been avoided in the present stage of the business; but as they had come forward on that ground, he had no objection to follow them in it, _and to rest the decision of the constitutional powers of Congress on the fate of the present question_. He would, therefore, state his opinion, that the House had a _right_ to ask for the papers proposed to be called for, because their co-operation and sanction was necessary to carry the Treaty into full effect, to render it a binding instrument, and to make it, properly speaking, a law of the land; because they had a full discretion either to give or to refuse that co-operation; because they must be guided, in the exercise of that discretion, by the merits and expediency of the Treaty itself, and therefore had a _right_ to ask for every information which could assist them in deciding that question. One argument repeatedly used by every gentleman opposed to the present motion was, "That the Treaty was unconstitutional or not; if not, the House had no agency in the business, but must carry it into full effect; and if unconstitutional, the question could only be decided from the face of the instrument, and no papers could throw light upon the question." He wished gentlemen had defined what they understood by a constitutional Treaty; for, if the scope of their arguments was referred to, it would not be found possible to make an unconstitutional treaty. He would say what he conceived constituted the unconstitutionality of a treaty. A treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the Federal Government, but which have been exclusively and specially granted to a particular branch of Government, say to the Legislative department, such a Treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch. In this case, and to this end, the Legislature have a right to demand the documents relative to the negotiation of the Treaty, because that Treaty operates on objects specially delegated to the Legislature. He turned to the constitution. It says that the PRESIDENT shall have the power to make Treaties, by and with the advice and consent of two-thirds of the Senate. It does not say what Treaties. If the clause be taken by itself, then it grants an authority altogether undefined. But the gentlemen quote another clause of the constitution, where it is said that the constitution, and the laws made in pursuance thereof, and all Treaties, are the supreme law of the land; and thence, they insist that Treaties made by the PRESIDENT and Senate are the supreme law of the land, and that the power of making Treaties is undefined and unlimited. He proceeded to controvert this opinion, and contended that it was limited by other parts of the constitution. The power of making Treaties is contended to be undefined, then it might extend to all subjects which may properly become the subjects of national compacts. But, he contended, if any other specific powers were given to a different branch of the Government, they must limit the general powers; and, to make the compact valid, it was necessary that, as far as those powers clashed with the general, that the branch holding the specific should concur and give its sanction. If still it is insisted that Treaties are the supreme law of the land, the constitution and laws are also; and it may be asked, which shall have the preference? Shall a Treaty repeal a law or a law a Treaty? Neither can a law repeal a Treaty, because a Treaty is made with the concurrence of another party--a foreign nation--that has no participation in framing the law: nor can a Treaty made by the PRESIDENT and Senate repeal a law, for the same reason, because the House of Representatives have a participation in making the law. It is a sound maxim in Government, that it requires the same power to repeal a law that enacted it. If so, then it follows that laws and Treaties are not of the same nature; that both operate as the law of the land, but under certain limitations; both are subject to the control of the constitution; they are made not only by different powers, but those powers are distributed, under different modifications, among the several branches of the Government. Thus no law could be made by the Legislature giving themselves power to execute it; and no Treaty, by the Executive, embracing objects specifically assigned to the Legislature without their assent. To what, he asked, would a contrary doctrine lead? If the power of making Treaties is to reside in the PRESIDENT and Senate unlimitedly: in other words, if, in the exercise of this power, the PRESIDENT and Senate are to be restrained by no other branch of the Government, the PRESIDENT and Senate may absorb all Legislative power--the Executive has, then, nothing to do but to substitute a foreign nation for the House of Representatives, and they may legislate to any extent. If the Treaty-making power is unlimited and undefined, it may extend to every object of legislation. Under it money may be borrowed, as well as commerce regulated; and why not money appropriated? For, arguing as the gentlemen do, they might say the constitution says that no money shall be drawn from the Treasury but in consequence of appropriations made by law. But Treaties, whatever provision they may contain, are law; appropriations, therefore, may be made by Treaties. Then it would have been the shortest way to have carried the late Treaty into effect by the instrument itself, by adding to it another article, appropriating the necessary sums. By what provision of the constitution is the Treaty-making power, agreeably to the construction of the gentlemen, limited? Is it limited by the provisions with respect to appropriations? Not more so than by the other specific powers granted to the Legislature. Is it limited by any law past? If not, it must embrace every thing, and all the objects of legislation. If not limited by existing laws, or if it repeals the laws that clash with it, or if the Legislature is obliged to repeal the laws so clashing, then the Legislative power in fact resides in the PRESIDENT and Senate, and they can, by employing an Indian tribe, pass any law under the color of Treaty. Unless it is allowed that either the power of the House over the purse-strings is a check, or the existing laws cannot be repealed by a Treaty, or that the special powers granted to Congress limit the general power of Treaty-making, there are no bounds to it, it must absorb all others, repeal all laws in contravention to it, and act without control. To the construction he had given to this part of the constitution, no such formidable objections could be raised. He did not claim for the House a power of making Treaties, but a check upon the Treaty-making power--a mere negative power; whilst those who are in favor of a different construction advocate a positive and unlimited power. He read a quotation from _Blackstone_, page 257, vol. i., to show that the power of Treaty-making in England is as extensively vested in the King, as it can possibly be said to be here in our Executive. The following is the passage alluded to: "II. It is also the King's prerogative to make Treaties, leagues, and alliances with foreign States and Princes. For it is, by the law of nations, essential to the goodness of a league, that it be made by the sovereign power, and then it is binding upon the whole community; and, in England, the sovereign power, _quo ad hoc_, is vested in the person of the King. Whatever contracts, therefore, he engages in, no other power in the kingdom can legally delay, resist, or annul." After such a latitude as this clause gives, it would be supposed that there could be no check reserved upon this power; yet it will be found that Parliament have a participation in it. And the apparent inconsistency is easily reconciled, by observing that the power given generally to the Executive of making contracts with other nations, does not imply that of making Legislative regulations, but that when the contract happens to embrace Legislative objects, the assistance of the Legislature becomes necessary to give it effect. He proceeded to show the operation of this limitation of the Treaty-making power in England by the practice of Parliament. It was always considered as discretionary with Parliament to grant money to carry Treaties into effect or not, and to repeal or not to repeal laws that interfere with them. In citing instances of the exercise of this power, he should not go further back than their Revolution. He then read several extracts from _Anderson's_ History of Commerce, vol. iii. pages 269, '70, '71, '72. They are so much in point that we transcribe the most material passages: "But we could not omit our animadversions on the eighth and ninth articles, as they were so extraordinary in themselves, and as they occasioned so great a stir and uneasiness at that time, as to have brought the whole Treaty of Commerce to miscarry then and ever since. "ART. IX. That within the space of two months after a law shall be made in Great Britain, whereby it shall be sufficiently provided that not more customs or duties be paid for goods and merchandise brought from France into Great Britain than what are payable for goods and merchandise of the like nature, imported into Great Britain from any other country in Europe; and that all laws made in Great Britain since the year 1664 for prohibiting the importation of any goods or merchandise coming from France, which were not prohibited before that time, be repealed, the general tariff in France, on the 18th of September, in the said year 1664, shall take place there again, and the duties payable in France by the subjects of Great Britain for goods imported and exported, shall be paid according to the tenor of the tariff above mentioned. "When the said two articles came to be known by the merchants of Great Britain, they were received with the utmost surprise and indignation, and the clamor was loud and universal. "That the complying with those two articles would effectually ruin the commerce we carried on to Portugal--the very best branch of all our European commerce. That the said eight articles did, in general terms, put France on an equal footing with Portugal or any other of our best allies, in point of commerce." "This is, in brief, the sum of this mercantile controversy, which when brought into Parliament, it was so apparent that our trade to France had ever been a ruinous one, and that if, in consequence of accepting the said eighth and ninth articles, the British Parliament should consent to reduce the high duties and take off the prohibitions so prudently laid on French commodities, it would effectually ruin the very best branches of our commerce, and would thereby deprive many hundred thousand manufacturers of their subsistence; which was also supported by petitions from many parts of the kingdom: that, although a great majority of that House of Commons was in other respects closely attached to the ministry, _the bill for agreeing to the purport of the said two articles was rejected by a majority of nine voices_, after the most eminent merchants had been heard at the bar of that House, to the great joy of the whole trading part of the nation, and of all other impartial people." Thus it must be clearly seen, that the consent of Parliament was not only deemed necessary to the completion of the Treaty, but that that consent was refused, and that in consequence the Treaty fell to the ground, and was not revived for a period of near eighty years, and all notwithstanding the plenitude of the Treaty-making power, said by the best English authority, _Blackstone_, to be vested in the King; which was, however, he repeated, necessarily checked by the special powers vested in Parliament; for none but they could grant money, or repeal the laws clashing with the provisions of Treaties. He cited another instance of the exercise of this controlling power in Parliament of even a later date, viz: in the year 1739, in the case of a Treaty between Spain and Great Britain, which was sanctioned by a very small majority indeed in Parliament. He cited a third example from _Anderson_, vol. vi., page 828, in the case of the Treaty of Commerce between France and Great Britain, to show that the practice of the Parliament's interfering in Treaties is not obsolete. The following is an article of the said Treaty, which Mr. GALLATIN read: "XIV. The advantages granted by the present Treaty to the subjects of His Britannic Majesty shall take effect, as far as relates to the kingdom of Great Britain, as soon as laws shall be passed there, for securing to the subjects of His Most Christian Majesty the reciprocal enjoyment of the advantages which are granted to them by the Treaty. "And the advantages by all these articles, except the tariff, shall take effect with regard to the kingdom of Ireland, as soon as laws shall be passed there, for securing to the subjects of His Most Christian Majesty the reciprocal enjoyment of the advantages which are granted to them by this Treaty: and, in like manner, the advantages granted by the tariff shall take effect in what relates to the said kingdom, as soon as laws shall be passed there for giving effect to the said tariff." Upon this principle, founded on almost immemorial practice in Great Britain, did the Minister of that kingdom, when introducing the late Treaty with Prussia into Parliament, tell the House that they will have to consider the Treaty and make provision for carrying it into effect. On the same principle, when the debate took place on that instrument, it was moved to strike out the sum proposed to be voted, which would have defeated it, and afterwards to strike out the appropriation clause, which would have rendered the bill a mere vote of credit, and would also have caused the Treaty to fall to the ground. On the same principle, the King of Great Britain, when he mentioned the American Treaty, promised to lay it before them in proper season, that they might _judge of the propriety_ of enacting the necessary provisions to carry it into effect. It remains to be examined, said Mr. G., whether we are to be in a worse situation than Great Britain; whether the House of Representatives of the United States, the substantial and immediate Representatives of the American people, shall be ranked below the British House of Commons; whether the Legislative power shall be swallowed up by the Treaty-making authority, as contended for here, though never claimed even in Great Britain? In Great Britain, he remarked, the Treaty-making power is as undefined as in America. The constitution here, declares that the PRESIDENT and Senate shall make Treaties; there, custom says as loudly, that the King shall make them. In Great Britain, however, the power is limited, by immemorial custom, by the exercise of the Legislative authority by a branch distinct from the regal; in the same manner is it limited here, not however merely by custom and tradition, but by the words of the constitution, which gives specifically the Legislative power to Congress; and he hoped this authority would be exercised by the House with as much spirit and independence as any where. If this doctrine is sanctioned, if it is allowed, that Treaties may regulate appropriations and repeal existing laws, and the House, by rejecting the present resolution declare, that they give up all control, all right to the exercise of discretion, it is tantamount to saying, that they abandon their share in legislation, and that they consent the whole power should be concentred in the other branches. He did not believe such a doctrine could be countenanced by the House. If gentlemen should insist upon maintaining this doctrine, should deny the free agency of the House, and their right to judge of the expediency of carrying the Treaty into effect, the friends to the independence of the House will be driven to the necessity to reject the Treaty, whether good or bad, to assert the contested right. If the gentlemen abandoned this ground, then the policy of the measure could be weighed on fair ground, and the Treaty carried into affect, if reconcilable to the interests of the United States. MARCH 10.--In Committee of the Whole, on Mr. LIVINGSTON's resolution, Mr. HARTLEY delivered his sentiments as follows: As I was not present when this subject was first introduced, it cannot be expected that I should take any great share in the debate; but some observations I have heard, chiefly from the gentleman last up yesterday from Pennsylvania, have induced me to show a few grounds for my vote. That gentleman has strongly combined this resolution with the Treaty, and wishes that every one who holds that there should be a co-operation of this House respecting that instrument, should vote for the resolution. I think differently. The gentlemen who contend for the mighty power of the Executive and Senate, as well as those who argue for the great authority of this House, perhaps are on extremes; but the Treaty ought not now to be so largely under consideration. I am willing, if it is thought proper, to take it up at an early day, and, after a full hearing, will vote as I hold right. The gentleman I referred to, from Pennsylvania, argued most strenuously that the laws and customs of Great Britain and the Constitution of the United States were analogous--nay, that the powers were precisely the same. The gentlemen who hold this doctrine have made researches, and have quoted several authorities; but why have not those ingenious gentlemen discovered a single instance where the British House of Commons have had the instructions given by the Executive to the negotiating Minister laid before them. If there was such a power, no doubt that body would at some period have exercised it; for no men on earth have extended the power of privileges which they had further than the members of the House of Commons of Britain. As those gentlemen who contend for the likeness--indeed, sameness of the Treaty-making powers of both countries--can show no precedent, it may be fairly contended, that no such right exists as is contemplated by the resolution. Treaties are made under the Executive in almost all countries, and when the Ministers have gone through their part of the business, the Treaty is commonly laid before the nation. If any national act is further necessary, it would pass in conformity to the principles of good faith; if any thing is necessary (consistent with the constitution) on the part of the House, it will be the discussion of another day. Mr. GRISWOLD said, that the resolution on the table appeared at first view to be perfectly innocent, and, he might add, of very little importance. It amounted to no more than a request to the PRESIDENT to furnish the House with papers relating to the negotiation with Great Britain, which he might either satisfy or reject. But the discussion which had taken place in the committee, had given the subject a very serious aspect, and involved a question of the first importance; and although some gentlemen had thought that the committee had prematurely involved itself in the examination of the question, he could not see how the discussion could have been avoided. For gentlemen would not say that any resolution--more particularly a resolution calling on the PRESIDENT for documents belonging to the Executive Department--was to pass the House without a conclusive reason, much less without any reason for its passing. On this principle gentlemen had been called on at an early period for the reasons on which they grounded the resolution. They had attempted to assign reasons, but those reasons had been generally abandoned; and it could not at that time be seriously contended that the objects of general information or publicity, which had been first mentioned, could justify the House in calling on the PRESIDENT for papers relating to the British Treaty, or that those papers were necessary to enable the House to judge of the constitutionality of the Treaty. The friends of the resolution, aware of this, had at last come forward and assigned a new and a very important reason. It had been now said, that the House of Representatives have a right to judge over the heads of the PRESIDENT and Senate on the subject of Treaties; that no Treaty can become a law until sanctioned by the House; and, in fine, that the House of Representatives is a constitutional part of the Treaty-making power. If these facts and the principles which grow out of them are true, he could not say that the resolution was improper; and although he did not know to what part of the Treaty the papers would particularly apply, yet, if the House were to take this extensive view of the Treaty, and ultimately to sanction or reject it, it would seem that the papers relating to the negotiation ought to be laid before them. But if these facts are not true, and the House is not a constitutional part of the Treaty-making power, and the Treaty is already a law without its sanction, then the reason falls to the ground, and the resolution ought to be rejected. This inquiry into the powers of the House of Representatives must be confined, and the question arising out of it must be decided by a fair construction of the constitution. The powers of each branch of the Government are there limited and defined, and an accurate understanding of that instrument would enable gentlemen to decide the question. In comparing these questions with the constitution, gentlemen were not, however, to inquire whether that constitution was a good or a bad one; whether too much power had been given to this or to that branch of the Government. The question will only be, what powers has the constitution given, and to what departments have the same been distributed? To render the subject as clear and distinct as possible, he thought it would not be improper to take an abstract view of those two powers in all governments having foreign relations which are immediately connected with the inquiry, viz: the Legislative and the Treaty-making power. And if gentlemen can clearly fix in their minds the limits of each, they will become better enabled to see their operation, and to decide on the powers of the House in the exercise of them. The Legislative power in all governments is extremely broad; it occupies the most extensive ground; it extends to every object which relates to the internal concerns of the nation; it regulates the life, the liberty, and the property of every individual living within its jurisdiction; it can control commerce within its jurisdiction; govern the conduct of the nation towards aliens, in whatever capacity they may appear; and, in short, as certain English writers have said of the British Government, its power is almost omnipotent. Thus broad and extensive are the general powers of legislation, subject, however, to such particular restrictions as are prescribed by forms of government, or which occasionally arise from the nature of government itself, and limit the objects of its operation. It is easy to see, that in the exercise of these Legislative powers, it will frequently happen that laws are enacted, which, in their operation, will embarrass the intercourse of two nations. Such are always the effect of retaliating laws, and aliens within the limits of a foreign jurisdiction are frequently, by those regulations, subjected to great and unreasonable embarrassments. The Treaty-making power operates in a very different manner; its power is limited and confined to the forming of Treaties with foreign nations; its objects are to facilitate the intercourse between nations; to remove by contract, those impediments which embarrass that intercourse, and to place the same on a fair and just foundation. In the exercise of this power, it will unavoidably happen that the laws of the Legislature are sometimes infracted. The Legislature, for certain causes,--perhaps to compel a foreign nation to form a treaty on terms of reciprocity,--may prohibit all intercourse, or embarrass that intercourse with regulations so burdensome as to produce the same effect; the foreign nation finally becomes willing to treat, and to establish an intercourse on equitable terms. If, in this case, the Treaty power cannot touch the laws of the Legislature, the object which gave rise to those very laws can never be attained; no Treaty can be formed, because it will oppose existing laws; those laws cannot be repealed, because the object for which they were enacted has not been attained. Such a construction of the Treaty power would defeat every object for which that power was established; and instead of possessing an authority to remove embarrassments in a foreign intercourse, it cannot touch them; and, although expressly created for the attainment of a single object, it can never attain it. From these considerations, he contended that, in the exercise of that power which related to the intercourse with foreign nations, the Treaty-making was paramount to the Legislative power; and that the positive institutions of the Legislature must give place to compact. On this construction, a perfect harmony is introduced into the departments of Government. Both the Legislative and the Treaty power are necessary, on many occasions, to accomplish the same objects. The Legislative power to establish regulations, or declare war, for the purpose of compelling a nation to agree to a reasonable compact; and the Treaty power, when that nation is compelled to agree to such reasonable compact, to remove by Treaty those very regulations, and the war itself, on fair and equitable terms. Mr. MADISON said, that the direct proposition before the House, had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of Treaties, that he should confine his present observations to the latter. The true question, therefore, before the committee, was, not whether the will of the people expressed in the constitution was to be obeyed, but how that will was to be understood; in what manner it had actually divided the powers delegated to the Government; and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit and object. On comparing the several passages in the constitution, which had been already cited to the committee, it appeared, that if taken literally, and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money, &c., are first specially vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the PRESIDENT and two-thirds of the Senate; and it is declared in another place, that the constitution and the Laws of the United States, made in pursuance thereof, and Treaties made, or to be made under the authority of the United States, shall be the supreme law of the land. And the judges, in every State, shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding. The term _supreme_, as applied to Treaties, evidently meant a supremacy over the State constitutions and laws, and not over the Constitution and Laws of the United States. And it was observable, that the judicial authority, and the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States, or to laws requisite to be passed by the States for giving effect to Treaties; and it might be a problem worthy of the consideration, though not needing the decision of the committee, in what manner the requisite provisions were to be obtained from the States. It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the constitution, that could leave room for different constructions. As the case, however, had happened, all that could be done was to examine the different constructions with accuracy and fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory. He stated the five following, as all the constructions, worthy of notice, that had either been contended for, or were likely to occur: I. The Treaty power, and the Congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other. II. As concurrent powers relating to the same objects; and operating like the power of Congress, and the power of the State Legislatures, in relation to taxes, on the same articles. III. As each of them supreme over the other as it may be the last exercised; like the different assemblies of the people, under the Roman Government, in the form of centuries, and in the form of tribes. IV. The Treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the committee, as both unlimited in its objects, and completely paramount in its authority. V. The Congressional power may be viewed as co-operative with the Treaty power, on the Legislative subjects submitted to Congress by the constitution, in the manner explained by the member from Pennsylvania (Mr. GALLATIN) and exemplified in the British Government. The objection to the first construction is, that it would narrow too much the Treaty power, to exclude from Treaties altogether the enumerated subjects submitted to the power of Congress; some or other of this class of regulations being generally comprised in the important compacts which take place between nations. The objection to the second is, that a concurrent exercise of the Treaty and Legislative powers, on the same objects, would be evidently impracticable. In the case of taxes laid both by Congress and by the State Legislatures on the same articles, the constitution presumed, that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. But it was manifest that such an interference would be unavoidable between the Treaty power and the power of Congress. A Treaty of Commerce, for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones. To the third, the objection was equally fatal. That it involved the absurdity of an _imperium in imperio_, of two powers, both of them supreme, yet each of them liable to be superseded by the other. There was, indeed, an instance of this kind found in the government of ancient Rome, where the two authorities of the _comitia curiata_, or meetings by centuries, and the _comitia tributa_, or meetings by tribes, were each possessed of the supreme Legislative power, and could each annul the proceedings of the other. For, although the people composed the body of the meetings in both cases, yet, as they voted in one, according to wealth, and in the other, according to numbers, the organizations were so distinct as to create, in fact, two distinct authorities. But it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other country. The fourth construction, is that which is contended for by the opponents of the proposition depending; and which gives to the Treaty power all the latitude which is not necessarily prohibited by a regard to the general form and fundamental principles of the constitution. In order to smooth the way for this doctrine, it had been said that the power to make Treaties was laid down in the most indefinite terms; and that the power to make laws, was no limitation to it, because the two powers were essentially different in their nature. If there was ingenuity in this distinction, it was all the merit it could have; for it must be obvious that it could neither be reduced to practice, nor be reconciled to principles. Treaties and laws, whatever the nature of them may be, must, in their operation, be often the same. Regulations by Treaty, if carried into effect, are laws. If Congress pass acts relating to provisions in a Treaty, so as to become incorporated with the Treaty, they are not the less laws on that account. A Legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration, that a foreign nation agrees to pass a like act, or on any other consideration. It must be objected to this construction, therefore, that it extends the power of the PRESIDENT and Senate too far, and cramps the powers of Congress too much. He did not admit that the term "Treaty" had the extensive and unlimited meaning which some seemed to claim for it. It was to be considered as a technical term, and its meaning was to be sought for in the use of it, particularly in governments which bore most analogy to our own. In absolute governments, where the whole power of the nation is usurped by the governments, and all the departments of power are united in the same person, the Treaty power has no bounds; because the power of the sovereign to execute it has none. In limited governments, the case is different; the Treaty power, if undefined, is not understood to be unlimited. In Great Britain, it is positively restrained on the subjects of money and dismembering the empire. Nor could the Executive there, if his recollection was right, make an alien a subject by means of a Treaty. But the question immediately under consideration, and which the context and spirit of the constitution must decide, turned on the extent of the Treaty power in relation to the objects; specifically and expressly submitted to the Legislative power of Congress. It was an important, and appeared to him to be a decisive, view of the subject, that if the Treaty power alone could perform any one act for which the authority of Congress is required by the constitution, it may perform every act for which the authority of that part of the Government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, to borrow, and to appropriate money, &c. If, by Treaty, therefore, as paramount to the Legislative power, the PRESIDENT and Senate can regulate trade, they can also declare war, they can raise armies to carry on war, and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the constitution, and must share the same fate. A member from Connecticut (Mr. GRISWOLD) had admitted that the power of war was exclusively vested in Congress; but he had not attempted, nor did it seem possible, to draw any line between that and the other enumerated powers. If any line could be drawn, it ought to be presented to the committee; and he should, for one, be ready to give it the most impartial consideration. He had not, however, any expectation that such an attempt could succeed; and, therefore, should submit to the serious consideration of the committee, that, although the constitution had carefully and jealously lodged the power of war, of armies, of the purse, &c. in Congress, of which the immediate Representatives of the people formed an integral part, yet, according to the construction maintained on the other side, the PRESIDENT and Senate, by means of a Treaty of Alliance with a nation at war, might make the United States parties in the war. They might stipulate subsidies, and even borrow money to pay them; they might furnish troops to be carried to Europe, Asia, or Africa; they might even attempt to keep up a standing army in time of peace, for the purpose of co-operating, on given contingencies, with an ally, for mutual safety or other common objects. Under this aspect the Treaty power would be tremendous indeed. The force of this reasoning is not obviated by saying, that the PRESIDENT and Senate would only pledge the public faith, and that the agency of Congress would be necessary to carry it into operation. For, what difference does this make, if the obligation imposed be, as is alleged, a constitutional one; if Congress have no will but to obey, and if to disobey be treason and rebellion against the constituted authorities? Under a constitutional obligation with such sanctions to it, Congress, in case the PRESIDENT and Senate should enter into an alliance for war, would be nothing more than the mere heralds for proclaiming it. In fact, it had been said that they must obey the injunctions of a Treaty, as implicitly as a subordinate officer in the Executive line was bound to obey the Chief Magistrate, or as the Judges are bound to decide according to the laws. As a further objection to the doctrine contended for, he called the attention of the committee to another very serious consequence from it. The specific powers, as vested in Congress by the constitution, are qualified by sundry exceptions, deemed of great importance to the safe exercise of them. These restrictions are contained in section 9 of the constitution, and in the articles of amendment which have been added to it. Thus, the "migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by Congress." He referred to several of the other restrictive paragraphs which followed, particularly the 5th, which says, that no tax shall be laid on exports, no preference given to ports of one State over those of another, &c. It was Congress, also, he observed, which was to make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, &c. Now, if the Legislative powers, specifically vested in Congress, are to be no limitation or check to the Treaty power, it was evident that the exceptions to those powers could be no limitation or check to the Treaty power. Returning to the powers particularly lodged in Congress, he took notice of those relating to war, and money, or the sword and the purse, as requiring a few additional observations, in order to show that the Treaty power could not be paramount over them. It was well known that, with respect to the regulation of commerce, it had long remained under the jurisdiction of the States; and that in the establishment of the present Government the question was, whether, and how far, it should be transferred to the general jurisdiction. But with respect to the power of making war, it had, from the commencement of the Revolution, been judged and exercised as a branch of the general authority, essential to the public safety. The only question, therefore, that could arise, was whether the power should be lodged in this or that department of the Federal Government. And we find it expressly vested in the Legislative, and not in the Executive department; with a view, no doubt, to guard it against the abuses which might be apprehended, from placing the power of declaring war in those hands which would conduct it when declared; and which, therefore, in the ordinary course of things, would be most tempted to go into war. But, according to the doctrine now maintained, the United States, by means of an alliance with a foreign power, might be driven into a state of war by the PRESIDENT and Senate, contrary both to a sense of the Legislature, and to the letter and spirit of the constitution. On the subject, also, of appropriating money, particularly to a military establishment, the provision of the constitution demanded the most severe attention. To prevent the continuance of a military force for a longer term than might be indispensable, it is expressly declared, that no appropriation for the support of armies shall be made for more than two years. So that, at the end of every two years, the question, whether a military force ought to be continued or not, must be open for consideration; and can be decided in the negative, by either the House of Representatives or the Senate's refusing to concur in the requisite appropriations. This is a most important check and security against the danger of standing armies, and against the prosecution of a war beyond its rational objects; and the efficacy of the precaution is the greater, as, at the end of every two years a re-election of the House of Representatives gives the people an opportunity of judging on the occasion for themselves. But if, as is contended, the House of Representatives have no right to deliberate on appropriations pledged by the PRESIDENT and Senate, and cannot refuse them, without a breach of the constitution and of their oaths, the case is precisely the same, and the same effects would follow, as if the appropriation were not limited to two years, but made for the whole period contemplated, at once. Where would be the check of a biennial appropriation for a military establishment raised for four years, if, at the end of two years, the appropriation was to be continued by a constitutional necessity for two years more? It is evident that no real difference can exist between an appropriation for four years at once, and two appropriations for two years each, the second of which, the two Houses would be constitutionally obliged to make. It had been said that, in all cases, a law must either be repealed, or its execution provided for. Whatever respect might be due to this principle in general, he denied that it could be applicable to the case in question. By the provision of the constitution, limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it must be necessarily repealed before an appropriation could be withheld, it would be in the power of either branch to keep up an establishment by refusing to concur in repeal. The construction and reasoning, therefore, opposed to the rights of the House, would evidently defeat an essential provision of the constitution. The constitution of the United States is a constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these formed the State Governments; the other, the Federal Government. The powers of the Government had been further divided into three great departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power were seen also exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the Treaty-making power, rather than towards one that would make it omnipotent. He came next to the fifth construction, which left with the PRESIDENT and Senate the power of making Treaties, but required at the same time the Legislative sanction and co-operation, in those cases where the constitution had given express and specific powers to the Legislature. It was to be presumed, that in all such cases the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstances of the existence of the Treaty. Still, however, this House, in its Legislative capacity, must exercise its reason: it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, it would no longer exercise a Legislative power; it would be the mere instrument of the will of another department, and would have no will of its own. Where the constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must, of course, do the act, because the constitution, which is paramount over all the departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one department of Government interferes with a power expressly vested in another, and nowhere expressly taken away: here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of Legislative power. Mr. W. SMITH (of South Carolina) said, he would not at that time go into an extensive review of the arguments of the gentleman from Virginia, (Mr. MADISON,) but would only notice some points which he had dwelt on. Before he went into a consideration of the subject, he would call the attention of the committee to the true question now before them; for though it was originally only a call for papers, it had now assumed a very important shape, and was nothing less than this, Whether that House had a concurrent power with the PRESIDENT and Senate in making Treaties? The gentleman last up had followed others in referring to the practice under the British constitution; but had concluded his remarks on that argument with allowing, that, after all, our own constitution must be our sole guide. He heartily joined in that sentiment, and was satisfied that the merits of the question should be tested by that alone. In order to show that the Treaty power was solely delegated to the PRESIDENT and Senate by the constitution, Mr. S. said, he should not confine himself to a mere recital of the words, but he should appeal to the general sense of the whole nation at the time the constitution was formed, before any Treaty was made under it, which could, by exciting passion and discontent, warp the mind from a just and natural construction of the constitution. By referring to the contemporaneous expositions of that instrument, when the subject was viewed only in relation to the abstract power, and not to a particular Treaty, we should come at the truth. He would then confidently appeal to the opinions of those who, when the constitution was promulgated, were alarmed at the Treaty power, because it was by the constitution vested in the PRESIDENT and Senate, and to its advocates, who vindicated it by proving that the power was safely deposited with these branches of the Government. The discussions which took place at the time of its adoption by the Convention of the several States, proved, beyond a doubt, that the full extent of the power was then well understood, and thought, by those who approved of the constitution, to be sufficiently guarded. He would further appeal to the amendments which had been proposed by the discontented. The Convention of Virginia had proposed an amendment, which of itself overturned all the reasonings of the gentleman. It was, "that no commercial Treaty should be valid, unless ratified by two-thirds of all the Senators." This was the only check which that State required, and was a conclusive evidence of their opinions: had that State conceived that the check which is now contended for existed in the constitution, they could not have been guilty of such an absurdity as the amendment would involve. All the possible dangers which might ensue from the unlimited nature of the Treaty power were well considered before the constitution was adopted, and Virginia required no further check than the one above recited. All, therefore, that they required had, in the present case, been done, for the Treaty was ratified by two-thirds of all the Senators. Mr. S. said, he could refer to many further proofs derived from a similar source. He would not, however, fatigue the committee at this time with reading them. He would only recall the recollection of some gentlemen present to the protest of the Pennsylvania minority, where the same ideas and amendments were contained, and to the proceedings of a meeting at Harrisburg, which the gentleman from Pennsylvania (Mr. GALLATIN) must well remember, (having been one of the meeting,) where, after stating objections to the extensive powers delegated by the constitution, the following amendment was proposed, as necessary to limit and restrain the powers: "Provided always, that no Treaty which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular State, until such Treaty shall have been laid before and assented to by the House of Representatives in Congress." This amendment was the most satisfactory evidence that the proposers of it did then believe that, without that amendment, such Treaty would be valid and binding, although not assented to by this House, and that they had, at that day, no idea that there existed in the constitution the check which is now discovered by this _ex post facto_ construction. Having stated the general opinion of the public, as manifested by the friends as well as the enemies of the constitution, Mr. S. said he would proceed to show that the practice of Congress had, from the commencement of its existence, been conformable to that opinion. Several treaties had been concluded with Indian tribes under the present constitution. These Treaties embraced all the points which were now made a subject of contest--settlement of boundaries, grants of money, &c.; when ratified by the PRESIDENT and Senate, they had been proclaimed by the Executive as the law of the land; they had not even been communicated to the House; but the House, considering them as laws, had made the appropriations as matters of course, and as they did in respect to other laws. The Treaties were never discussed, but the requisite sums, as reported in the annual estimates, were included, as matters of course, in the general mass of moneys voted for the War Establishment in the item of Indian Department. It was not pretended that the constitution made any distinction between Treaties with foreign nations and Indian tribes; and the clause of the constitution which gives to Congress the power of regulating commerce with foreign nations, and on which the modern doctrine is founded, includes as well Indian tribes as foreign nations. That this House considered a Treaty, when ratified by the PRESIDENT and Senate, as the law of the land, was further evident from a resolve of the House, of the 4th of June, 1790, in these words; "_Resolved_, That all Treaties made, or which shall be made and promulged under the authority of the United States, shall from time to time be published and annexed to their code of laws, by the Secretary of State." In consequence of this resolution, the several Secretaries of State had annexed the Treaties which had been made to the code of laws, as soon as they were ratified by the PRESIDENT and Senate, and promulged by the PRESIDENT. Mr. S. repeated his former assertion, that there were cases where that House had not the right of withholding appropriations; if they had the power, indeed, they might stop the proceedings of Government altogether; and so, individuals had the power of resisting the laws. Gentlemen had said, that if this doctrine prevailed, the House would lose its capacity of judging. He denied it; they would still retain, in such cases, a discretion, guided by morality, good faith, and the constitution; the members were as much bound by the laws in their Legislative, as in their individual capacity; if an existing law (or Treaty, which was a law of the highest nature) prescribed a certain duty, they were bound to perform it, and their discretion could only be called in to regulate the mode and circumstances of discharging that duty; it could not be a matter of discretion whether or not they should perform that duty. Thus, unless they intended to arrest the operations of Government, their discretion could not be requisite to determine whether they should appropriate the moneys necessary for its support; but out of what fund, and when the moneys shall be paid, and other matters of detail. So, when a Treaty was concluded, and became a compact binding the nation, the discretion of the House (unless it was intended to violate our faith) could not determine whether the moneys contracted for should be paid, but the mode, the fund, and such questions of detail, would alone be considered. The distinction, which was an obvious one, between power and right, had not been attended to. The House had certainly the power to do many things which they had not the right to do; they had the power to do wrong, but they certainly had not the right to do wrong; and whether the wrong was committed by acting where they ought not to act, or refusing to act where they ought, was immaterial; both were equally reprehensible. It had been boldly said, that there was no case which could possibly come before them, where they would not be at liberty to answer aye or no: he would produce a case--by the constitution, on the application of a certain number of States, wishing for amendments, Congress must call a Convention; where is this boasted discretion, of which so much has been said? Could the House, in this case, exercise its discretion, whether or no a Convention should be called? Why not? Because the constitution says it must call a Convention: and does not the constitution say, "Treaties made by the PRESIDENT and Senate are laws, and that laws must be obeyed?" The same injunctions of the constitution are imposed in both cases; and as in the first, all this House could do, would be to regulate the time and place of holding the Convention; so, in the latter, their discretion would be limited to the mode, and fund, and other details. The gentleman had mentioned the article in the constitution respecting appropriations for military services--they were to be limited to two years; this article proved itself that appropriations might be unlimited in every other case. When a Military Establishment was instituted, it was known that an appropriation law for that purpose could not be in force more than two years; no inconvenience, then, could result. But there was no such limitation in respect to any other branch of expenditure; from custom, appropriations for the support of Government were annual; appropriations even for pensions were annual, and yet no one doubted that, as the pension was a contract, the appropriation for it was always a thing of course; no discretion could be exercised, in respect to the payment, without a breach of faith. MARCH 11.--In Committee of the Whole, on Mr. LIVINGSTON's resolution. Mr. GILES said, he expected, when the present motion was made, that it would not be opposed. The expected agency of the House respecting the Treaty, or some subjects relating to it, made him imagine that the propriety of having the papers called for could not be denied. The Treaty has been referred to a Committee of the Whole, surely in order to act on it in some shape or other. Indeed, the PRESIDENT, in his Speech, at the opening of the session, expressly says, that he will lay the subject before them. This he considered as full evidence, that the PRESIDENT conceived it must come under the notice of the House. If the papers could serve to explain any point relative to that instrument, surely the possession of them was desirable. The right of the House to consider of the expediency of Treaties, so far as the provisions of them clash with their specific powers, had been indirectly brought in in considering the present motion. He regretted that this important constitutional question should be about to be decided indirectly; but, this being the situation of the debate, he should state his reasons why he conceived the argument on this ground ought not to be considered as of sufficient strength to cause a negative of the motion before the committee. The question is, whether there be any provisions in the constitution by which this House can in any case check the Treaty-making power; and, of consequence, whether it can question the merits of Treaties under any circumstances? Various considerations had been advanced to show that the House cannot question the merits of a Treaty. Some of these considerations had grown out of the subject extrinsically, others from the provisions of the constitution. Though at first he had intended to have stated simply his own opinion of the constitution on the important question now in view, yet, as gentlemen had gone fully into the question in that shape, and others had stated a variety of objections to the construction the friends of the motion contended for, he should proceed to answer them, and suffer his opinion of the meaning of the constitution to be incidental. The gentleman from South Carolina had referred to the opinions of the Conventions of the States at the time of adopting the constitution. As to Virginia, the gentleman had stated that that State had considered the checks as provided by the constitution as inadequate, and proposed an amendment, purporting to require two-thirds of the whole number of Senators, instead of two-thirds of the number present. This was true, he believed; but how would it apply in the sense the gentleman wished? The objection of that State was, that the check in the Senate, provided in the Treaty-making power, was not sufficient, and they proposed a greater: from which he would argue that they conceived the Treaty-making power to be a subject of extreme delicacy, and that they wished additional checks consequently added. How this was to prove that the Convention of Virginia did not construe the present clauses of the constitution under debate as the friends of the present motion did, he was at a loss to determine. The gentleman who cited this instance had not quoted any part of the proceeding on the subject, or of the reasons that led to the amendment. He had merely mentioned the result to the House. The practice of the House had been referred to yesterday by the member last up, (Mr. SMITH, of South Carolina.) He had remarked that the House had passed a general resolution directing the Clerk to place in the code of laws of the United States Treaties made under the authority of the United States. Was this, he asked, an exposition of the meaning of the constitution? He believed the resolution a very proper one, and would vote now for its adoption, if it was yet to be passed. It is certainly proper, when a Treaty is concluded under the authority of the United States, that it should be annexed to their code of laws; but this could not weigh against the exercise of discretion in the House on important Legislative subjects. The practice of the House, with respect to appropriation laws, in the cases of Indian Treaties, had been mentioned by the member from South Carolina. In the first place, observing upon this, he would remark, that he always conceived there was a distinction between an Indian Treaty and a Treaty with a foreign nation. The English had always made a distinction when we were Colonies. The constitution establishes an express difference. He should not, however, found his objections to the inference of the gentleman upon this, but would examine it unconnected with this distinction. Provisions had been made by this House to carry Indian Treaties into effect; but why? No doubt because the House conceived it wise so to do, not because they had not a right to use their discretion in the business. Suppose, on any of those occasions, a motion had been made to strike out the sum proposed to be appropriated, would it have been said that the motion was out of order? A similar motion was made lately with respect to the Mint, and it was not considered as out of order. If, on that occasion, it had been the opinion of the House that the Mint was an improper establishment, by refusing the appropriation they could have defeated the law. It was certainly the opinion of the House that they could exercise their discretion in the business, for it was not even hinted that the motion for striking out was out of order. On another head the gentleman appeared to plume himself much. He had asked, why, since the PRESIDENT had proclaimed a Treaty as the law of the land, which was not the law of the land, why he was not impeached? This question, the member exultingly remarked, had not been answered, because, he imagined, it could not be answered. Suppose I should tell the gentleman, said Mr. G., that I could not now give him an answer, would it show that the House had not the authority contended for by the friends of the present motion? Why was the subject mentioned? Not with a view, I believe, to the discovery of the truth. I fear it is calculated to produce an opposite effect--to check investigation. It is too often the case that the names of persons are brought into view, not to promote the development of principles, but as having a tendency to destroy freedom of inquiry. I will go further with the gentleman, and admit for a moment (a position, however, I shall by and by controvert) that the PRESIDENT conceived that he had a right, after the exchange of ratifications, to promulgate the Treaty as the supreme law of the land; what would this amount to? Why, only that this was his opinion; but is that authority here? In any other case rather than the present, I should be inclined to pay a greater respect to opinions from that source; but now, when the question is about the division of powers between two departments, are we to be told of the opinions of one of those departments, to show that the other has no right to the exercise of power in the case. Such appeals are not calculated to convince, but to alarm. Having examined the objections to the construction contended for by the friends of the motion, drawn from collateral sources, he should turn his attention next, he said, to the intrinsic meaning of the constitution. He would attempt to interpret the constitution from the words of it. It was a misfortune the clauses were not more clear and explicit, so far as to force the same meaning upon every mind, however they might differ in opinion in other respects. However, from the imperfection of language, it was no wonder, he observed, that on an instrument providing for so many different objects, and providing such a variety of checks, various opinions as to construction should arise; but he considered the present clauses of as plain import as any part of the instrument. The construction contended for by the opposers of the motion is, beyond denial, the most dangerous in its effects, and the least probable, as he thought, in its meaning. It is contended by them that the Treaty-making power is undefined in its nature, unlimited as to its objects, and supreme in its operation; that the Treaty-making power embraces all the Legislative powers; operates by controlling all other authorities, and that it is unchecked. When he had asserted this power, as contended by the gentlemen to be unlimited in its objects, he meant, however, that they had confined it only within the limits of the constitution; but even admitting it in that extent, is certainly a doctrine sufficiently alarming. When the gentlemen contend for its supremacy, they also admit in this point some qualifications; according to their doctrine, it is not to be supreme over the head of the constitution, but in every other respect they contend that it shall be unlimited, supreme, undefined. Gentlemen who insist that Treaties are supreme, next to the constitution, must also grant that there is no necessity for the House to trouble themselves with making laws. The construction contended for by the friends of the resolution is derived from two sources--from the constitution, and the nature of things. The constitution says, the PRESIDENT, with the advice and consent of two-thirds of the Senators present, shall make Treaties. Perhaps, if there was no other clause, the Treaty-making power might be considered as unlimited. Another clause declares that the constitution, the laws made under it, and Treaties, shall be the supreme law of the land. Here the gentlemen, when they quote this clause, stop, as if there were no other words in it; and from all this it would appear that the people had, in fact, delegated an unchecked power. But, if we go on, it will be found that the last-mentioned clause adds that the judges in the respective States shall cause them to be executed, any thing in the constitution or laws of the individual States to the contrary notwithstanding. From the jealousy which individual States showed under the Old Confederation for the preservation of their powers, and the inconveniences which were experienced in consequence, it was found necessary, when organizing a new Government, to declare, explicitly, that their constitutions and laws must yield to the _Constitution_, _laws_ and _Treaties_ of the United States, and for this purpose this clause was introduced. The checks on the Treaty-making power he considered as divisible into two classes; the first, consists in the necessary concurrence of the House to give efficacy to Treaties; which concurrent power they derive from the enumeration of the Legislative powers of the House. Where the Treaty-making power is exercised, it must be under the reservation, that its provisions, so far as they interfere with the specified powers delegated to Congress, must be so far submitted to the discretion of that department of the Government. The PRESIDENT and Senate, by the constitution, have the power of making Treaties, Congress the power of regulating commerce, raising armies, &c.; and these, he contended, must form so many exceptions to the general power. Gentlemen had said that the constitution was the exposition of the will of the people, and, as such, that they would obey its injunctions. There could be no difference of opinion on this ground; for his own part, he confessed if he adored any thing on earth, it is that will. But the question is, what is that will, as expressed in the constitution? That instrument, to his mind, explained this question very clearly. It enumerates certain powers which it declares specifically vested in Congress; and where is the danger to be apprehended from the doctrine laid down by the friends of the resolution? The contrary construction must produce the most pernicious consequences; agreeably to that, there would remain no check over the most unlimited power in the Government. The gentlemen contend, that the House must remain silent spectators in the business of a Treaty, and that they have no right to the exercise of an opinion in the matter; they must then abandon their constitutional right of legislation; they must abandon the constitution and cling to Treaties as supreme. The other check over the Treaty-making power, he noticed, was the power of making appropriations, the exercise of which is specifically vested in Congress. He begged leave to call the particular attention of the committee to this part of the subject. The constitution says, that no money shall be drawn from the Treasury, but in consequence of appropriations made by law. This is no doubt intended as a check in addition to those possessed by the House. It is meant to enable the House, without the concurrence of the other branches, to check, by refusing money, any mischief in the operations carrying on in any department of the Government. But what is a law? It is a rule prescribed by competent authority. The word law in the clause of the constitution he had last noticed, was not meant in reference to the Treaty-making power; but in reference to Congress. A law prescribes a rule of conduct; it is the expression of the will of the proper authority; it is the result of discretion. Legislation implies deliberation. If a law is the expression of the will, must not an appropriation law be equally so? But gentlemen had found out a new-fashioned exposition of the word discretion, and, according to their definition in fact, it was no discretion at all. They had mentioned a part of the constitution which provides that the salaries of the Judicial Department shall be fixed; and asked, whether the House should conceive itself at liberty to use a discretion in appropriations for that department? Before he could consider this case, and that before the House, now parallel, he must beg gentlemen would point out any part of the constitution that declared the House should not exercise their discretion when called upon to make appropriations to carry into effect a Treaty. He could find nowhere, that, in this case, the right of opinion of the House is constrained. The uniform practice of the British Government had been cited to have been, in the case of Treaties, the same as that contended for by the friends of the present motion. The greatest security for the liberties of the people established in that Government, depends on the control which their Parliament has over the purse-strings. In England, this power rests merely on custom; here, the House are expressly intrusted with it; what is custom in England, is reduced to writing in our constitution. Then, if this power is in England a ground for Parliament to judge of Treaties, it is a fair inference that it ought to be exercised here. The practice of the British Government, he observed, had often been quoted here, in support of doctrines very different from those in aid of which it is now cited; it has been deemed orthodox when it favored Executive prerogative. He confessed, he never did expect that, as early as 1796, a reference would be made to practices, under the British Government, in support of the rights of the popular branch of our Government. It was painful to be obliged to have resort to that Government on such an occasion; but the authority of that Government should not be rejected for once, because its practice could be quoted in favor of the popular branch. The ground of the practice in England, and of the right claimed here, rests upon the sound maxim, that all public money is from the pockets of the people, and that it should be expended by none but their Representatives. No maxim had been more instrumental than this, in preserving the remnants of British freedom; and thus early is the House called upon to abandon it here. Treaties are contended to be paramount to the laws; the PRESIDENT and Senate make these Treaties, and when made and proclaimed as the supreme law, there is a predestinated necessity in the House to make the requisite provisions for carrying them into effect. The danger of this doctrine, he said, could not be better exemplified, than by a reference to the circumstances that attended the late Treaty in its progress. Three years ago, a difference took place between the different branches of Government, as to the policy that should obtain in reference to the conduct of one foreign nation. The House were unwilling to trust solely to the magnanimity of the King, and wished to make some exertions themselves for self-protection. With this view several measures were proposed, viz: commercial restrictions, non-importation, embargo, sequestration, or rather arrestation upon the ground of the _status quo_. One of the measures passed the House by a respectable majority, but was rejected in the Senate by the casting vote of the VICE PRESIDENT. The PRESIDENT appointed an Envoy Extraordinary, who entered into certain stipulations, which, being sanctioned by two-thirds of the Senate, it is now contended, are to operate the destruction of the powers specifically vested in the House. If the above was a true statement, he said, and he did not see in what particular it could be contradicted, then the Executive had been exerted as a check upon the Legislative power, for the negotiation necessarily foreclosed any further Legislative proceedings. It did more than this; the Executive legislated against legislation, and overruled them on the subject in contest. He should not advert at this time, he said, to the collateral circumstances which attended this business, nor go further in detail; he wished only to remark generally on the dangerous operation of the doctrines contended for. Now, it is said, the House have nothing to do but to obey, to appropriate the necessary money, leaving all deliberation aside. If the PRESIDENT, said Mr. GILES, can, by the assistance of a foreign power, legislate against the rights of the House to legislate, and his proceedings are to be binding on the House, it necessarily destroys their right to the exercise of discretion. If he can by Treaty declare, that commerce shall not be regulated, that property shall not be sequestrated, and that piracies shall be judged and punished as he thinks fit; if he is to exercise the unlimited Treaty-making power contended for, what security have we that he may not go further when the negotiations are renewed with Great Britain, agreeably to the stipulations of the present Treaty? What security have we that he will not agree with Great Britain, that if she will keep up an army of ten thousand men in Canada, he will do the same here? How could such a stipulation be got over by the House, when they are told that in matters of Treaty they must not pretend to exercise their will, but must obey? How will this doctrine operate upon the power of appropriation? A military establishment may be instituted for twenty years, and as their moral sense is to prevent their withholding appropriations, they can have no power over its existence. Gentlemen had gone so far as to declare, that an attempt to examine the merits of the Treaty was rebellion, was treason against the constitution. What justifies these harsh epithets? Such assertions could only create ill-will, and could not tend to the investigation of truth. Another argument of the same nature had been used. It was said, that the attempt at exercising a control over the Treaty-making power was disorganizing the Government. He believed the contrary would be found to be the case. The doctrine advocated by the friends to the motion, only goes to claim a negative voice in the business of Treaty-making; whereas the doctrine of its opposers claims the exercise of a power, that would supersede the specific authority delegated to the Legislature in all cases whatever. Mr. SEDGWICK said, that, after the length of time which had been consumed, and the talents which had been so ably exerted in the discussion of this subject, he should not think himself authorized to call the attention of the committee to any observations of his; but, that he considered it in principle, and in its consequences, as the most important question which had ever been debated in this House. It was no less than whether this House should, by construction and implication, extend its controlling influence to subjects which were expressly, and he thought exclusively, delegated by the people to another department of the Government. We had heretofore been warned emphatically against seizing on power by construction and implication. He had known no instance in which the caution that warning enforced, deserved more attention than on the present occasion. It would be taken for granted, and it would be conceded on all hands, that we were to resort to the constitution, to know the extent and limits of our power, and if we found not there a clear evidence of its existence, we ought to abandon the exercise. It was certain we had not any express delegation to make or to control the public will in any of our relations with foreign nations. On the other hand, we found it declared, that the PRESIDENT should have power to make Treaties by and with the advice and consent of the Senate, provided two-thirds of the Senators present concurred. Treaties, to attain the ends for which they were designed, were, from their nature, supreme laws; but the constitution had, in another place, declared, Treaties made under the authority of the United States should be supreme laws. Gentlemen had said, that it was not declared that Treaties made by the PRESIDENT and Senate should have this effect; but those made under the authority of the United States. The question then recurred, what Treaties were made under the authority of the United States? The true answer undoubtedly was, Treaties made by those to whom the people, by their constitution, had delegated the power. The PRESIDENT, qualified as had been mentioned, had expressly, and none else had such power. If we were to rest the subject here, it would seem to follow irresistibly, and to be incapable almost of higher proof, that whenever a compact was formed by the PRESIDENT with a foreign nation, and had received the advice and consent of the Senate, if it was of such a nature as to be properly denominated a Treaty, all its stipulations would thereby, and from that moment, become "supreme laws." The power of treating between independent nations might be classed under the following heads: 1. To compose and adjust differences, whether to terminate or to prevent war. 2. To form contracts for mutual security or defence; or to make Treaties, offensive or defensive. 3. To regulate an intercourse for mutual benefit, or to form Treaties of commerce. Without the first, war and contention could only be terminated by the destruction of one of the parties; without the second, there could be no defence, by means of union and concert, against superior force; and without the last, a profitable and beneficial intercourse could not be arranged on terms of reciprocity. Hence, then, it must be evident to every unprejudiced mind, that by a grant of power to make Treaties, authority was given to bind the nation by stipulations; to preserve peace or terminate war; to enter into alliances, offensive and defensive, and to form commercial Treaties. This power, he held, unlimited by the constitution, and he held, too, that in its nature, to the extent he had mentioned, it was illimitable. Did a serious difference exist with a foreign nation, in determining on the nature and extent of the stipulations which might be necessary to adjust it, the cause of injury, national rights and honor, the evils of war, and all circumstances of relation between the two countries, must be taken into account. In forming alliances, the threatened pressure, your own and your enemy's relative strength, the objects of acquisition or defence, must be considered. And, in adjusting an equitable intercourse for commercial purposes, a thousand circumstances present themselves for nice calculations. A thousand circumstances of foreign relations would occur in the history of every country, under which nothing short of unlimited powers of negotiation would be adequate to a prevention of enormous, perhaps ruinous evils. But it might be objected that a power so enormous, and comprehending such essential interests, might be abused, and thence asked, where is the remedy? To this he answered, that a national association required, for the great purpose of preservation, an unlimited confidence on many subjects. Hence, not only this, but perhaps every other national government, had delegated to it an unlimited control over the persons and property of the nation. It might, by the express power given to it of raising armies, convert every citizen into a soldier, and, by a single assessment of a tax, it might command the use of all the property in the country. The power to raise armies and taxes was limited in its exercise by nothing but the discretion of the Legislature, under the direction of its prudence, wisdom, and virtue. Was there no security against a wanton abuse of these enormous powers? Yes, it was to be hoped that the people, in electing the members of this House, and the States in choosing those of the other, would not select characters, who, regardless of the public good, would wantonly impose on their constituents unnecessary burdens. It would be an additional security, that the interests of the rulers were inseparably connected with those of the people; that they could impose no burdens in which themselves did not equally participate. But, should all these guards be insufficient, was there no dependence to be placed in the PRESIDENT?--the man elected by a refined process, pre-eminent in fame and virtue as in rank! Was there no security in the watchful guardianship of such a character? Responsible by every thing dear and valuable to man--his reputation, his own and his fellow-citizens' happiness--was there no well-founded reliance on all these considerations, for security against oppression? If not, we had not the requisite materials by which to administer a republican government, and the project might be abandoned. After all, however, should the unlimited powers he had mentioned (and such powers must always be unlimited) be wantonly abused, was there no remedy? Yes, in the good sense and manly independent spirit of the people. If intolerable burdens were wantonly imposed; if necessary to defeat the oppression, opposition and insurrection would not only be authorized, but become a duty. And if any man could honestly lay his hand on his heart, and in sincerity declare, that a compliance with any existing Treaty was worth more than our Government, our constitution, our Union, and the liberty protected by them; to that man he was ready to declare, that opposition had become a duty. But, in every instance of opposition, whether in defeat of a Legislative act, or of a Treaty, the right of resistance resulted not from the constitution itself, for it had declared no such right; no constitution could declare it. It existed in original principles, and never could be exercised but by resorting to them. The gentleman from Virginia (Mr. MADISON) had stated five different constructions which possibly might be given to the constitution on this subject; three of which, (and for none of them to Mr. S.'s knowledge had any man ever contended,) the gentleman had proved to be unfounded. The fourth, that which he had given to the constitution, if admitted, and it should be abused, might produce mischievous effects. Was not this true of all the great and essential powers of government? If the controlling influence of this House was added, would the power be less? And if, under these circumstances, abused, would the injury be more tolerable? In short, was not this a kind of argument infinitely more tending to the production of prejudice than to the discovery of truth? The gentleman has really given no decisive opinion what was the true construction. He had, however, seemed to incline to a belief that to the stipulations of a Treaty relative to any subject committed to the control of the Legislature, to give them validity, Legislative co-operation was necessary. Of consequence, if this was withheld, the operation of the Treaty would be defeated. That it was at the will, and within the discretion, of the Legislature to withhold such co-operation, and of course the House might control and defeat the solemn engagements of the PRESIDENT and Senate. The gentleman who had suggested this opinion was well known to the committee, and throughout America. Mr. S. could not but observe that it was perfectly unaccountable to his mind, that that gentleman had yet to form an opinion to whom was delegated that power, the nature, extent, and effects of which he had so strongly and perspicuously detailed. The capacity of that gentleman's mind, long exercised on political subjects, his known caution and prudence, would authorize a request that he or his friends would explain how it was possible, if such as he states should have been the intention of those who framed the constitution, that the true meaning should not have been expressed in the instrument? That when the gentleman went from the Assembly which framed the constitution, immediately afterwards, to one of those which ratified it, he should have admitted an opposite construction? As Mr. S. would undertake, by and by, to prove that, in the Convention of Virginia, he did admit the very construction for which we now contended, he would take the liberty further to inquire, how it happened, that, if such was really the intention of the instrument, that such was the meaning of the people, no man had heard of it until the discovery was produced by the British Treaty? Strange national intention, unknown for years to every individual! As the gentleman had been pleased to dwell on the idea of a co-operation between the powers of the Government, he would take the liberty to state, what had been ably explained by other gentlemen, that the power of making Treaties was wholly different from that of making ordinary laws; originating from different motives; producing different effects, and operating to a different extent. In all those particulars, the difference had been perfectly understood. For instance, the ordinary legal protection of property, and the punishment of its violation, could never be extended beyond your own jurisdiction; but, by Treaty, the same protection could be extended within the jurisdiction of a foreign government. You could not legislate an adjustment of disputes, nor a peace with another country; but, by Treaty, both might be effected. Your laws, in no instance, could operate except in your own jurisdiction, and on your own citizens. By Treaty, an operation was given to stipulations within the jurisdiction of both the contracting parties. It had been said that Treaties could not operate on those subjects which were consigned to Legislative control. If this be true, said he, how impotent in this respect is the power of the Government! What, then, permit me to inquire, can the power of treating effect? I will tell you what it cannot do; it can make no alliances, because any stipulations for offensive or defensive operations, will infringe on the Legislative power of declaring war, laying taxes, or raising armies, or all of them. No Treaty of peace can probably be made, which will not either ascertain boundaries, stipulate privileges to aliens, the payment of money, or a cession of a territory, and certainly no Treaty of commerce can be made. Was it not strange, that, to this late hour, it should have been delayed, and that now, all at once, it should have been discovered, that no power was delegated to any person to regulate our foreign relations? That, although a power was granted to the PRESIDENT and Senate to form Treaties, that yet there were such reservations and restrictions, that there remained nothing on which this power could operate? Or was it true, that this power was competent to treat with every government on earth but that of Great Britain? Might he not be permitted further to inquire, if this Treaty had been formed with any other power, with the precise stipulations it now contained, whether there ever would have existed this doubt of constitutionality. MARCH 14.--In Committee of the Whole on Mr. LIVINGSTON's resolution: Mr. SAMUEL LYMAN said he rose only to make a few observations. He was against the resolution now on the table, as involving a doctrine, in his opinion, not only inconsistent with the principles of the constitution, but also inconsistent with the laws of nations. In debating the merits of this resolution, an exceedingly important abstract constitutional question had arisen, viz: How far that House had a right to exercise their Legislative discretion and judgment relative to carrying a Treaty into effect. In order to answer this question, he would raise two premises. And, first, by the constitution, the Legislative powers of that House, in co-operation with the other branches of the Legislature, extend to all objects within the reach of their sovereignty, excepting the reservations to the distinct sovereignties of the several States which compose the Union; but beyond those boundaries their powers could not extend. Secondly, there is, by the constitution, attached to the Legislature a subordinate kind of power, of a limited and ministerial, or Executive nature. At present, it did not occur to him that this subordinate power was to be exercised in its simplicity, excepting in two instances, viz: 1st, for calling a Convention under certain circumstances to amend the constitution; and, 2dly, for carrying into effect Treaties which are constitutionally made; for these two purposes, the people, who are the source of power, had stripped that House of all Legislative authority, and made them only the executors of their will; therefore, upon these premises he answered, if a Treaty was unconstitutional, they had an undoubted right to exercise a Legislative discretion and judgment relative to carrying it into operation, for they were sent there as the guardians of the rights of their fellow-citizens, and, for that purpose, are sworn to support the constitution; but if the Treaty was constitutional, they had not a right to exercise that discretion; for, without their intervention, it becomes the supreme law of the land, and virtually repeals all laws which are repugnant to it; and in that case that House is bound to obey it, and to carry it into complete execution; for, by the constitution, the power of making Treaties is vested solely and exclusively in the Executive Department. In the former case, they have a right to exercise a deliberative or Legislative power, but not in the latter case; they could there only exercise a ministerial or Executive power. So that herein, said he, lies the true distinction, and it arises from the nature and principles of the constitution. He had not the least doubt of the constitutionality of a treaty, when the stipulations in it were of such a nature as not to respect objects of legislation, but only objects which lay beyond the bounds of their sovereignty; for beyond those limits their laws could not extend as rules to regulate the conduct of subjects of foreign Powers; and although some stipulations in a Treaty may respect objects which were within the reach of their sovereignty, yet it may be in such manner as to be strictly constitutional; for such stipulations may be not only pertinent, but absolutely necessary in forming the Treaty. This conclusion, he thought, was the natural and necessary result of a fair and liberal construction of the principles of the constitution, and especially of that paragraph which vests the power of making Treaties in the Supreme Executive, with the advice of the Senate. Mr. L. said he was sensible he had been delivering an unpopular doctrine, but that he was deeply impressed with its truth, its reality, and its importance; and that the obligations of an oath had prevented his silence on the occasion. Mr. BALDWIN said he had before expressed his opinion, in general terms, in favor of this question. It must have been observed that he had been for several days noting the debates, and preparing to take part in them. He had intended to have introduced the debate on Friday morning last, but a singular incident prevented him, which he felt it to be his duty to take this earliest opportunity to state to the House. Mr. B. then said: about five minutes before I expected to rise on the question, I was called out of the House by a person then unknown to me, who said his name was FRELINGHUYSEN, and whom I found to be a Senator of the United States. After a number of interviews, he observed, with great expressions of pain and regret, that he was at last obliged to the unwelcome office of delivering me that letter, which I opened and found to be a challenge directed to me from JAMES GUNN, who is also a Senator of the United States. The pretext for this transaction was, to extort from me some private letters which I had received early in the session from a number of my constituents, expressing their wish that I would endeavor to prevent any thing being done in Congress to validate the Mississippi Yazoo Land Speculation before the meeting of the State Legislature. There was no complaint of any personal indecorum or disrespect at all; whether they were actuated in their conduct solely by interest in Yazoo speculations, I will not pretend to judge. The revival of a transaction of so old a date at that particular moment, was to me surprising. Not knowing their degree of relation to this question between the two Houses, and not knowing the cast of character but of one of them, I am left only to conjecture. It was so peculiarly timed, and the professed object also of so peculiar a nature, to interrupt the channels of confidence for free communication between me and my constituents, that I have thought it my duty not to let the treatment of it depend on my own individual discretion. I consider it as in the discretion of the House. Mr. B. also observed that he felt himself under the necessity of using this as an apology for the apparent neglects of Friday, after the particular attention he had before appeared to pay to the discussion; and for his not being able to notice any of the proceedings in the debate of Friday, he had supposed he had lost the opportunity of offering his opinion, but was glad to find the question had not been taken, as he was unwilling to suffer this, or even a greater interruption, to prevent him from declaring his opinion, as he had before intended. He said, it was remarkable that several gentlemen rose with very different expressions which had been said to contain the subject in discussion. It was certainly important to agree exactly on that point. The least variation in the point of departure would soon diverge till they were out of sight of each other, and yet each one keep a straight direction. One gentleman had stated, that the question was, whether this House should feel itself at liberty to judge over the heads of PRESIDENT and Senate on the subject of Treaties without restraint: his reasoning seemed to be built on that proposition. Another gentleman had said that the question was, whether the power of making Treaties was given by the constitution to the PRESIDENT and two-thirds of the Senate, or to the PRESIDENT and both branches of the Legislature. He might mention several others, but he called the attention of the House to the fact, to settle the point, that they might at least agree what they were talking about. The question, said he, on the table is, to request of the PRESIDENT papers respecting the Treaty: the objection is, you ought not to ask for the papers, because you have no right to touch the subject. He begged leave then to ask, with the utmost candor and respect, whether the real question now depending and brought into dispute by this motion, is not whether all questions relating to this subject are not so definitely and perfectly settled by the constitution, that there was nothing for that House to deliberate upon on the occasion, but only punctually to provide the funds to carry the Treaty into effect. If it were allowed that there might be any possible or extraordinary cases on the subject of Treaty-making, in which it might ever be proper for that House to deliberate--as, for instance, offensive Treaties which might bring the country into a war--subsidies and support of foreign armies--introduction of an established religion from a foreign country, or any other of those acts which are by the constitution prohibited to Congress, but not prohibited to the makers of Treaties; if it were allowed that there might possibly exist any such case, in which it might ever be proper for Congress to deliberate, it would seem to be giving up the ground on which the discussion of the present question has been placed; what agency the House should take, and when, would be other questions. Whether a case would probably occur once in a hundred years that would warrant the House in touching the subject, is of no consequence to the debate. The right is denied in the largest sense. The assertion is, that the House has no right to deliberate or to look into any papers on the subject; that the people have, by the constitution, reposed the whole of their confidence on this subject elsewhere; that, to attempt to deliberate upon it, or to ask for any papers respecting it, is treason and anarchy. If this ground were once given up, he should be infinitely less anxious what the House might do in any particular case: these would rest on their individual merits. For his own part, he was by no means disposed to carry the interference of the House to any extreme; but he could not express his abhorrence of the doctrine in the extent to which some gentlemen have carried it in this discussion. He begged leave to entreat gentlemen again candidly to review the few words in the constitution on which they rested so much, and to ask whether they appeared to be such labored expressions as they supposed--so apt and definite as to mean exactly what they contend for, and nothing else; and whether all the words may not well be satisfied without, and stand more harmoniously connected with the other parts of the constitution. How much they intended to incorporate with this power of Treaty-making, under cover of contract with foreign nations, he had not heard any one attempt to explain; it seemed designed to stand distinguished as an indefinite, uncontrolled branch of the Government, the extent of whose powers was to be known only by its own acts. Its definition was to be, that it was indefinite--like what is said of some branches of the powers of Parliament; that no one has pretended or ought to pretend to know their extent; that they are not to be submitted to the judgment of any one but themselves; and that they never develope them but by the particular exercise of them; that they were to be left in this state, because, if they were defined, they might be eluded. However this might be found respecting a foreign constitution, it is making a monster of our own. There was not another part or lineament in it which appeared to be in the same mould or proportion. Mr. B. then undertook to state his own view of the subject, and what he thought ought to be done. Much, he said, depended on the words "make Treaties and supreme law of the land;" as to the words supreme law of the land, he had not much doubt for what purpose solely they were introduced. The words were satisfied, and he thought most naturally, by not suffering them to disturb the balance of the Federal Constitution, for that is not the subject which the section where these words are used is speaking of; but to consider them as giving to the Treaty-making power the same paramount authority over the laws and constitutions of the several States, that they give at the same time to the Constitution and laws of the United States. The words appear to be introduced for the express purpose of making the Constitution, laws, and Treaties of the United States, paramount to the constitutions and laws of the several States, and for no other purpose; this is all that the section appears to be speaking of; it satisfies the words, is the most obvious and natural meaning, and leaves the other parts of the constitution harmonious and undisturbed. As to the words "power to make Treaties," it was more difficult to ascertain precisely what the constitution meant to give by them. It had been argued that from the nature of governmental powers, the Treaty-making power must be paramount, and from the nature of contract it must be paramount. The truth is, the Treaty-making power must be what the constitution has made it. He did not hesitate to say, that the most natural meaning to give these words, was to consider them as borrowed from former use, and to give them the meaning which they had always before given them. Gentlemen had said that nothing useful could be derived from English books and explanations on these terms. This seemed to him an unreasonable assertion. It might as well be said that they could not use an English Dictionary to ascertain the meaning of words. In many sciences, said he, there are definite and appropriate phrases as well as definite and appropriate words; and, in fact, books which are dictionaries of phrases, ascertain the meaning of phrases with as much precision as dictionaries ascertain the meaning of words. It is exceedingly useful that it should be so. When such a precise meaning is fixed to a phrase, and publicly known, it is apt to remain a long time exact, as it is frequently employed, and is very useful as a medium of certainty. Many instances of this kind might be quoted, particularly from English books on law and government. He would observe further, these appropriate phrases had been for their certainty in many instances transferred into our constitution, and their meaning must be manifestly sought in those sources as in a dictionary. One remarkable instance occurred to him, and which, from the singularity of its garb, would be very discernible in the constitution--he meant the definition of treason in the third section of the third article of the constitution. The phrase is levying war, adhering to enemies, giving them aid and comfort. These are the very words of the English books, which have been so critically judged that they are not capable of the least variation in their meaning on that tremendous subject; but this meaning is to be sought from those sources; he might mention several instances, but it was unnecessary. He thought the phrase, power to make Treaties, should be ascertained in the same manner; and the English meaning, as it would naturally be understood at the time of making the constitution, should be affixed to it; that it should be considered as giving to the PRESIDENT and two-thirds of the Senate the same kind of power as the King of England possesses on the subject of Treaties, which it is known is in several cases subject to the control of Parliament. Here it is qualified by the powers specifically given to Congress. Mr. HOLLAND said: It is with great diffidence I rise on this important subject, to submit some considerations to this committee. As it has now become a constitutional question, not with respect to the merits of the Treaty, but with respect to the constitutional right of this House to request the Executive to furnish us with papers that related to the Treaty antecedent to its ratification. To this it is objected that this House has no discretionary power over the Treaty, and, on that account, has nothing to do with the papers. The question is not whether the Treaty is a good or bad Treaty, but it is whether we have a right to exercise our judgments upon it. Then, without any regard to the Treaty, we must be governed by the rational construction of the fundamental principles of government. To illustrate which, it may be necessary to examine what has been incident to the different kinds of government, according to the histories of those nations governed by despotism, monarchs, or republics; and from the Constitution of the United States as the fundamental maxims of the Republic, draw that construction that is most rational and natural. It will also be proper to examine which of those governments preserves the most power in the people. First, then, of monarchy. Where has that power been placed? According to the theory of the English Government it has been lodged in the Sovereign, for it is there expressly said (nor has it been denied on this floor) that the King is the source of all power; and it is also expressly declared that the King of Great Britain has sovereign and exclusive right to make Treaties. That, when they are made, they cannot be impeded or annulled by any existing power in the kingdom. This is the theory of that Government. But what has been the practice? I answer, the contrary; for it ever has been that, when a Treaty was made, the same has been submitted to the Parliament for concurrence; and Parliament, if they thought proper, admitted and sometimes annulled them, as in the Treaty of Utrecht, and sundry instances that the history of that nation affords us. The English Government, therefore, is in practice what it is not in theory. By the construction of the constitution, as contended for, by giving uncontrollable power to twenty Senators and the PRESIDENT, our Government will be in practice what the English Government is in theory. If this doctrine had been believed, that this was the true construction of the constitution, previous and at the time of its adoption, would the people of the United States have adopted it? If they had been informed that, by this instrument, they were ceding more power to two-thirds of the Senators and PRESIDENT, than even could be practised by the King of England, with his lords spiritual and temporal, under that impression would they have ceded that power? Or, if they had been told that the House of Representatives, under this constitution, had less power than was exercised by the House of Commons in England; that they would be less able to secure their liberties in this country against the approaches of prerogative, would they have, under that belief, accepted of this constitution? I think, Mr. Chairman, I may venture to say they would not. With respect to the more absolute government of France, where has this power been lodged? In this, as in the monarchy of England, it was, in theory, lodged in a prince; but the theory, even in that despotic government, never could be carried into practice. According to _Vattel_, in the Treaty made by Francis I., in the Treaty of Madrid, on account of that Treaty encroaching on the fundamentals of their government, it was set aside. How was this done? It was not done by Parliament, for they had none; but the principal people of the kingdom met together at Cogniac and annulled it. I ask again, Mr. Chairman, if the people of this country possess less power than the people of that despotic Government? Or do they possess less power to withstand the usurpations of the Executive, on the subject of Treaties, in their Representatives in Congress, than has ever been maintained in the cramped situation of the people of England by the House of Commons? Why were these rights ever maintained and so scrupulously attended to by the people of those countries? It was because they considered them as the palladium of their remaining liberty,--they therefore, would not let them go. Then, with respect to a Republic, the sovereign power is in the people. It therefore follows that whatever can be effected by the people in those countries can be done here--they being the source of power. Then, with regard to the constitution, it must be construed naturally and liberally in behalf of the people. Not as giving all power that can be given, but as retaining all power and natural right that ought to be retained. It would have been extremely improper to have wantonly discarded natural privilege, or ceded more power than was essential to government; nor was any more intended to be given. The constitution, upon the face of it, shows that this is the case--limits are prescribed to governmental power. Not so in the countries spoken of, yet the people exercise it. But it is said our constitution has not retained this privilege, and it is the law and the testimony, sacred volume, &c. The sacredness depends upon the attention to the principles that procured its adoption; when that is contravened a violence is made upon the rights of the people. If, by any construction that can be given, these rights can be preserved, it is wise to consider it as the better opinion. But it is said to be impossible that this power has been ceded, subject to no control, to the PRESIDENT and two-thirds of the Senators present; that, whatever may be the practice in other countries, it will not apply to this; that those countries have no constitution, and that we have, and must be governed by it. Unfortunate circumstance! why adopted? Was it wantonly to throw away a privilege and natural right? Certainly not, but the contrary. It was to secure natural right, and to establish a Republican form of Government. I considered that the Executive had absolute power to make peace; as by the constitution he is declared Commander-in-chief of all the armies, his situation enabled him to be the best judge of the forces and of the force he had to contend with, and as secrecy was necessary to effecting a Treaty of Peace, that power was properly vested in him, guarded by two-thirds of the Senate. But a Treaty of Commerce presupposes an existing peace, and in those Treaties secrecy is not essential; but a competent knowledge of the produce of the respective States in all their remote situations was necessary; which would be best obtained by an association of the three branches of Government. This is a Treaty of Commerce, and therefore has involved Legislative objects. It consequently requires Legislative sanction; a contrary construction would be a violation of the constitution and of the principles upon which it was adopted, and therefore a violation of the rights of the people. I confess, on viewing the exception and force of the argument, that I had some doubt, that when the government became old and corrupt, that this perversion might be attempted; but had no idea that in the course of six years it would be contended for. Mr. BRADBURY observed, that the most plausible reason that he had heard in support of the resolution under the consideration of the committee resulted from a principle advanced by a member from Pennsylvania, who spoke upon the subject last week. The principle was this; that where any articles of a Treaty were repugnant to prior existing acts of Congress, those acts must first be repealed by Congress before such Treaty can become the law of the land; and it was said some of the articles of the British Treaty were of this nature. He would not stay to examine the truth of the fact, for admitting it to be true, he altogether denied the principle; but yet he acknowledged that if it could be made out, it would afford the best reason yet given for calling for the papers. If their concurrence was necessary to give existence or legality to the Treaty, he saw not why they ought not to be favored with the papers as well as the Senate. But he asserted and would endeavor to prove, that the Treaty has already a legal existence; that it is now the law of the land; and that, therefore, no act of Congress is, or can be, necessary to make it so; and, therefore, that House could have no need of the papers, nor any right to call for them on that ground. That the Treaty had already become the law of the land, and that no Legislative act of Congress was necessary to make it so, he argued wholly from the constitution itself, by which alone the question must at last be determined. That instrument expressly declares, that all Treaties made under the authority of the United States shall be the supreme law of the land. He laid no stress upon the word supreme, admitting for argument's sake, that the supremacy ascribed to the constitution and laws, and Treaties made under it, meant a supremacy over the constitution and laws of individual States. All he asked to be granted him, and which he thought could not be denied, was that a Treaty made under the authority of the United States was the law of the land. If so, then all that needed to be proved was, that a Treaty made by the PRESIDENT, with the advice and consent of two-thirds of the Senate, was a Treaty made under the authority of the United States. And to prove that, he needed only to mention another clause in the constitution, which expressly declares that the PRESIDENT, with such advice and consent, shall have power to make Treaties. He nowhere read in the constitution that any act of Congress, in any possible case, was necessary to make a Treaty, so as that without it such Treaty could not be the law of the land. He nowhere read that prior acts of Congress repugnant to a Treaty must first be repealed before a Treaty could be a law. But, says the gentleman from Pennsylvania, the same Treaty power is given to the King by the Constitution and laws of England, that is given to the PRESIDENT by our constitution, and yet the Parliament have the power there which he contends for in favor of Congress here; that is, they must repeal prior laws repugnant to a new Treaty, before it can be the law of the land; and why is not an act of Congress, it is asked, necessary for the same purpose, in a similar case here? He would answer, because our constitution is different from the British in this respect: it declares that a Treaty made under the authority of the United States, (and he had shown that a Treaty made by the PRESIDENT, as aforesaid, was made under such authority,) is the law of the land, and if it is a law, nothing further can be requisite to make it so. There was no such declaration in the Constitution and laws of England. There was no arguing from the power of Parliament to the power of Congress. The Parliament must have controlled this Treaty power of the King, and stripped him of his prerogative, by use and custom. There had been in England a constant struggle between power and privilege; the prerogatives of the King were not founded in the grant of the people; they were founded on force, on the right of conquest; whatever, therefore, was gained from the King by the Commons, was considered as so much gained by the people from an adverse power. If the PRESIDENT were an hereditary monarch, deriving his power from his predecessors by descent, a power originally founded in conquest, Congress would do well to get as much of it out of his hands as they could. It would here be, as it was there, a struggle between prerogative and privilege; it would be the people against the King. But as this was not the case, and as Congress never had in fact assumed and exercised the power of confirming, by an act of theirs, Treaties made by the PRESIDENT, this argument from analogy wholly failed. Suppose the Parliament of Great Britain should pass a law expressly delegating the Treaty-making power to the King, with the advice and consent of two-thirds of his Privy Council, and should declare in the act, that a Treaty made under such authority should be the supreme law of the land. They claim a right to make such a law, for Judge _Blackstone_ affirms, that the denial of a power in every government, even to alter every part of its constitution, is the height of political absurdity; and in England, he expressly ascribes this power to Parliament. What would be the effect of such an act of Parliament? Would not a Treaty made under it be clearly the law of England? and would not all acts of Parliament, prior and repugnant to it, be repealed by it? He was clearly of opinion they would; and this clause, he said, was inserted in the American Constitution, probably to guard against that very construction which is now endeavored to be put upon the Treaty power; on purpose to cut off all pretence of a power in Congress to control a Treaty, by refusing to repeal any prior laws that might stand in the way of it. But, said the same gentleman, shall a British House of Commons have this right of controlling the Treaty-making power, and shall it be denied to the Representatives of a free people? He answered, the PRESIDENT and Senate of the United States were as much the Representatives of a free people as that House was; they were as truly, though not so immediately, chosen by the people as they were. The people distributed their powers as they pleased. The PRESIDENT, said he, represents the people as their Executive agent, and is possessed of all Executive power, and the power of making Treaties. The true question, then, was, shall one constituted representative authority usurp the power and control the acts assigned by the constitution to another representative authority of the same free people? They certainly ought not. If they should attempt it, it would be opposing one authority of the people to another. It would be dividing a free people against itself. But he hoped he had said enough to show the unsoundness of that principle, and fully to establish what he first undertook to prove, that the Treaty was already completed; that it was already the law of the land; and that it did, by its own force, repeal all prior laws, if there were any standing in the way of it; and if so, they could have no need of the papers to assist them in making it a law. It had also been laid by the King before his Parliament, and he supposed the necessary appropriations had been made to carry it into effect. He did not know that any other Parliamentary provision was necessary. But it may be said, that it is fit and proper that they should call for the papers mentioned in the resolution, even if the Treaty were law, because appropriations by act of Congress would be necessary to carry it into effect, and they ought to have the papers to judge whether it be fit for them to make those appropriations. He answered, whether that be fit or not, in his opinion, must depend wholly upon the Treaty or law itself, and upon nothing out of it. It was like all other laws requiring appropriations, in making which they must be governed by a sound and legal discretion, and that discretion must be governed by the instrument itself. Even if a question should arise and be proper for the discussion of that House, on the constitutionality of the Treaty, yet that question must be decided by the Treaty itself, and by nothing else; and there could be no need of any papers for that purpose. If general information were the object, to allay the public sensibility, he should think the better way would be to request the PRESIDENT to publish the papers in all the newspapers throughout the United States. But he believed he must be considered as the best judge in that matter. He would only add, that the correspondence between their Envoy and the British Minister was, in its nature, secret and confidential. It was communicated to the Senate because they were a part of the Treaty-making power, which the House was not; but even to them it was communicated in confidence. A request to the PRESIDENT, said he, to communicate these papers, amounts to a requirement; but there can be no right to require where there is no obligation to obey. Mr. PAGE spoke as follows: I confess, sir, that I had wished that this House, instead of asking the PRESIDENT for information respecting the negotiation and ratification of the Treaty, at this late day of its session, had given him, as soon as possible after its meeting, fully their opinions, and that of their constituents, respecting the Treaty itself. But, as time has been afforded for deliberation, and the House has waited most patiently and respectfully till the PRESIDENT could "place the subject before them," according to his promise in his Address to Congress, I think they have shown a spirit of moderation which deserves credit. The friends of the Treaty cannot complain that it has been hastily and rudely attacked, and should not object to the request which is proposed to be made to the PRESIDENT, to furnish a statement of facts which, from what has been said elsewhere, may be supposed sufficient to silence the most clamorous opposers of the Treaty. I think that the Treaty is constitutional, as far as relates to the powers of the contracting parties to make Treaties; and is constitutional and valid, also, as far as relates to that part of it which gives it the name of a Treaty of Amity, and which might be in a separate and distinct Treaty by itself; for the PRESIDENT, by and with the advice and consent of two-thirds of the Senators present, has an undoubted authority, under the express words in the first article of the constitution, to make Treaties. And I have no doubt that the Treaties which were in the view of the framers of that article, must have been principally Treaties of Peace, of Amity, of Neutrality, or of Alliance. This is the more probable, as the first and principal Treaties in which nations were concerned, were Treaties of Peace, or Treaties to secure the blessings of peace; and it is certain that the Treaty of Peace with Great Britain was the very Treaty which gave rise to the declaration of the constitution, that all Treaties made and to be made by the authority of the United States shall be the supreme law of the land: for the Treaty of Peace with Great Britain was said to be in a state of inexecution on account of an obstruction thrown in the way by the laws of certain States. This article, therefore, was intended to remove all obstacles, which had arisen or might arise from State Legislatures, and might, I will here remark, as easily have been extended to remove all obstructions from the General Legislature by adding to the words "any Constitution or law of the States," these words, "or the Constitution or laws of the United States notwithstanding." The power to make Treaties of Commerce and Navigation, I humbly conceive, could scarcely be within the view and design of the Convention, at least not as a primary object, when they formed the article respecting Treaties; because they knew, that the extent, situation, population, and productions of the United States, were such as would command them a sufficient share of the commerce of the world, without the aid of Commercial Treaties. They knew that almost all Europe stood in need of their productions, and that Great Britain and her islands could scarcely exist without them; they knew more, they knew this, sir, that the almost universal belief of their constituents, that giving a power to Congress to regulate commerce, which would answer every purpose of Commercial Treaties, gave existence to the very powers under which they were acting at the moment they framed that article. This mode of regulating commerce was favored by the opinion of the people, who celebrated the adoption of the constitution with so much exultation and expensive parade in the great commercial cities of the United States. They had no doubt that the new Congress would use the power with which it was invested, so as to oblige Great Britain to open her ports to them in the West Indies, and to put their trade with them upon a more equitable and stable footing. Indeed, sir, the people thought, as associations not to import certain articles from Great Britain, entered into by them when they were poor helpless Colonists, with halters about their necks, repealed the Stamp act, that acts of Congress regulating commerce, so as to retaliate on Great Britain, would at least prevent the enacting of the law by which the British King was authorized to regulate the commerce of the United States with Great Britain and her Islands. I acknowledge, sir, that whenever a Treaty is to be made, the PRESIDENT and Senate are the proper agents to make it. I think it an excellence in our constitution that the PRESIDENT and Senate, though not allowed to declare war, have authority to put a stop to its horrors. This is a wise provision against the injury which the pride and ambition of the larger States might do to the smaller, by continuing a war. But I cannot conceive that when Congress is authorized to make all laws necessary and proper to carry into effect all the powers granted by the constitution, the Treaty-making power as well as others, and are to provide for the general welfare, which is not confided to the PRESIDENT and Senate, nor can be intrusted to them alone by the people upon any principle which has ever had weight in the formation of a Republican Government,--I cannot conceive, I say, that as this is the case, and the House of Representatives is composed of members proportioned to a certain ratio of the number of persons to be represented, and has the sole right to originate money bills, how it can possibly be supposed that the PRESIDENT and Senate, without their concurrence, can make regulations of commerce, which may be injurious to the general welfare, ruinous to the commerce of certain, and even the largest, States; and by a Treaty, too, which may, moreover, deprive that House, which, by the supposition of those who have defended the Treaty is at least a Committee of Ways and Means, (and, indeed, nothing more,) of the resources of revenue to which, by the constitution, they might have recourse. But we are told, sir, that the power given to Congress by the constitution to regulate commerce cannot extend to that regulation which depends upon the will of a foreign nation or government, and which can only be regulated by compact, or by the Treaty-making or pactitious powers. Granting that this assertion be true, which, however, may be denied, as the general belief which I have alluded to, and on which the existence of the present Government was founded, seemed to contradict it; for it was almost universally believed that an act of Congress regulating the commerce of the United States with Great Britain, as had been proposed to the former Congress, or Congress under the Confederation, or as proposed to this House on the 3d of January, 1794, and well known by the name of MADISON's propositions, or as proposed by Mr. CLARK, 7th April, 1794, would have brought about a more advantageous commercial intercourse with Great Britain than any direct negotiation with the British Minister. It was thought highly probable that the Parliament of Great Britain would (if any of these propositions had been adopted by Congress) have refused to have renewed their act, by which the trade with these United States (as if they were more degraded than Colonies) was regulated by the King's Proclamation. I say, granting, however, that assertion to be true, how does it prove, or what other assertion can prove, that Congress has not a right, under the express words of the constitution, which declares that it shall have power to regulate commerce with foreign nations, to be a party to that compact, or to have some share, either previously or subsequently, in the Treaty-making business, when it regulates the commerce of the United States with foreign powers? I may agree that a Treaty is necessary to establish a commercial intercourse between two nations, to their mutual advantage and satisfaction, but I must affirm, that as that Treaty would be a commercial regulation, and as Congress is expressly empowered by the constitution to regulate commerce, whenever such Treaty shall be made between the United States and any other nation, Congress must either direct that the negotiation be commenced upon conditions approved, or sanction the ratification of such Treaty by some act showing that the regulation of commerce, by the Treaty, was made by the authority of Congress, in conformity to the constitution. Besides, sir, if the PRESIDENT and Senate can regulate the commerce of the United States with one nation, they can with all nations, and if they can with all, what nation can there be with whom Congress can regulate commerce? This argument, therefore, must fall to the ground. We are told, however, that the Treaty-making power, from its nature, is competent to all the objects at least of the Treaty under consideration, and is not to be controlled or checked by this House. Let me examine this assertion. If this be true, sir, we find that although the British King, from whose tyranny we revolted, cannot force upon his subjects, against the will of their Representatives, a Treaty, which it is acknowledged, too, he has a right to make, the PRESIDENT OF THE UNITED STATES can, by his Proclamation, force upon the people who are his constituents a Treaty which their direct Representatives wish to suspend, alter, or annul. Can this possibly be a true construction of the Treaty-making power? Surely it cannot. If it be true, then, can the PRESIDENT repeal, as he has by the Treaty, the laws of Congress, although by the constitution he cannot negative them? He can oblige Congress to levy taxes; can withdraw impost and tonnage from their reach; prohibit the exportation of sundry articles, the produce of the United States, although the constitution forbids, the Senate and Representatives concurring, to lay the smallest duty on the exportation of any article; he can create offices and annex salaries thereto; destroy the rights of this House; provoke war; in short, he can do any thing; but this we are sworn to deny. The absurdity of that construction, then, must be evident, and the recollection of our oaths to support the constitution, of which we have been reminded, must force us to revolt at the thoughts of adopting such a monstrous construction of the constitution. We are reminded also of the PRESIDENT's Proclamation. I will attend to it. I look upon it as a proper notification of the ratification of the Treaty of Amity with Great Britain, but it can have no effect on the Treaty of Commerce and Navigation, till sanctioned by the votes of Congress. The evacuation of the posts on our frontiers held by the British, if intended in consequence of the Treaty of Amity, ought to take place, or if in conformity to the Treaty of Peace; but, if intended as a compliance with conditions annexed to the Treaty of Commerce and Navigation, good faith requires that they ought not to be evacuated until the final adjustment of the differences which may arise in the course of the discussion of the merits of that Treaty, and this with me is one reason why I wish for information from the PRESIDENT respecting the Treaty. I confess too, sir, that I wish for a full and free conference with the Senate on the important subject of the Treaty. Mr. BOURNE said he would have given a silent vote on this question, had it not have been for some strange doctrines which had been asserted, for he did not consider the question in itself as necessarily involving any constitutional question. The doctrine, that the formal assent of the House of Representatives was essential to the legal existence of a Treaty, struck him as a perfect novelty. That the PRESIDENT and Senate had power under the constitution to make Treaties, and that these Treaties were the laws of the land, he had never heard denied until this debate. It was true he had heard it said, that the House might control the PRESIDENT and Senate in the exercise of this power, by refusing to carry Treaties into effect by withholding appropriations of money; but he did not expect to hear the assertion, that the ratification of the House was necessary to a Treaty, before it became the law of the land. As a Representative of a small State, he felt himself much interested in opposing the doctrine contended for. Under the former Confederation Rhode Island had an equal vote with any State in the making of Treaties. This right was thought to have been fully preserved under the present constitution. But, if the sentiments he was combating prevailed, the small States would be deprived of one of their most essential rights; for the power of making Treaties, as one of the principal rights of sovereignty, was vested in all the States separately when they became independent, was afterwards, and in the old Confederation, vested in Congress, each State having an equal vote. It was now, in his opinion, exclusively vested in the PRESIDENT and Senate, in which body the great and small States had the same equality of suffrage. The opinion which he advanced was not merely the opinion of Rhode Island when the constitution was adopted. A gentleman from Massachusetts had already shown from the debates of the Virginia Convention, that that Assembly entertained the same opinion. He was sure the opinion prevailed in the Convention of Massachusetts--he had attended their debates when this part of the constitution was the subject of discussion. Objections were raised against it, from the indefiniteness of the power vested in the PRESIDENT and Senate of making Treaties. No one suggested that the House of Representatives had any control over, much less a participation in this power. It was urged, from the nature of the power, that it ought to be placed where it was--in the PRESIDENT and Senate. The Senate represented the sovereignty of the States; besides, from their small numbers, they were better adapted to the exercise of this power in respect to secrecy and despatch, necessary in negotiations. Objections were raised on the ground of the possible abuses to which the power of making Treaties, unlimited and undefined as it was, might be carried. No one said the PRESIDENT and Senate did not possess the power, nor was it pretended that Congress had any power to control it. He then called the attention of the committee to the debates of the Convention of North Carolina. He had been a little surprised to hear a member from that State yesterday say he was a member of the Convention, and that it was understood that Congress could control the PRESIDENT and Senate in making Treaties, so far as respected commerce; the power of legislating on commercial regulations being given to Congress. What created his surprise was, that he had read the debates of the first Convention, and found no such sentiment. The gentleman had explained himself by saying, there was a second Convention called in that State, of which he was a member, and there the doctrine alluded to had been advanced. The debates of this Convention Mr. B. had not seen. Mr. BRENT said he should not in the present debate touch on the merits of the Treaty, which he conceived foreign to this question. On a motion to ask for papers with respect to the Treaty, he did not conceive with what propriety the fitness of the instrument could be brought into view. The turn which the debate had taken had given rise, he said, to an important constitutional question; he did not believe its decision of consequence to the decision on the present motion; but as the debate had taken that turn, he should pursue the same road in answer to the arguments of gentlemen. He laid this down as a sound inference from the provisions of the constitution on the subject of the Treaty power: that the PRESIDENT and Senate possess the right of forming Treaties, and of carrying on the necessary negotiations with foreign countries; but when these contain stipulations bearing a relation to the specific power vested in the Legislature, the House had a right to take cognizance of it, and such a Treaty could not become the supreme law of the land until sanctioned by the Legislature. To show the justness of this position, he should examine this subject, he said, in a threefold light. He should examine it by a recurrence to the words of the constitution; then to the opinions which prevailed as to its meaning at the time it was framed and adopted; and, lastly, he should examine what construction was best calculated to preserve the liberties of this country. The constitution contains two clauses in reference to the Treaty-making power. The first declares that the PRESIDENT, with two-thirds of the Senate, shall have power to make Treaties. He proceeded to inquire whether this clause gives them the right to make Treaties the supreme law of the land? To determine this it was necessary to examine the import of the word in those countries where the Treaty power had been frequently exercised, and to consult the opinions of the best civilians. The general power of making Treaties is under the control of the constitution. In despotic countries, where all power, Legislative, judicial, and Executive, is in the hands of one person, there the Treaty-making power is without control, and a Treaty as soon as made becomes, _ipso facto_, the supreme law of the land; but in all limited governments, the Treaty power is subject to the limitations in the constitution. The practice of this principle may be found even in the British Government. There, though the King originates Treaties, as the PRESIDENT and Senate do here, they do not become the supreme law of the land, respecting Legislative subjects, until the co-operation of Parliament is obtained. Thus the power of making Treaties does not imply the power of making those Treaties in all cases the supreme law of the land. If the Executive make a Treaty involving none but Executive powers strictly, then it becomes immediately the supreme law; but if they contain provisions, which involve the Legislative authority, the Executive can make them but conditionally, and they do not become supreme until the Legislature choose to make them so. The British Government furnishes an example where this doctrine has been practised, and it is by a reference to the practice of despotic Governments, that the mistaken idea is taken up that all Treaties, as soon as made, become the supreme law of the land. The clause in our constitution, he concluded, does not give authority to the PRESIDENT and Senate to make a supreme law of the land. When this clause of the constitution is compared with the other parts of it, it will be found, he said, that the above interpretation is just; for the Treaty-making power is delegated as a general power, while to Congress specific powers are granted. The rational and admitted rule of construction in these cases is, that specific power restrains general powers; and here, then, the general Treaty power must be restrained by the specific powers of Congress. He admitted that the Executive had full power, under the general authority vested in them by the constitution, to originate Treaties and to carry on negotiations with foreign powers; but that if the provisions of a Treaty so negotiated clashed with specific powers granted, the authority exercising those specific powers must give it their sanction before it becomes the supreme law of the land. He next turned to the second clause of the constitution respecting Treaties, which had been noticed in the debate. It says, that the constitution, laws, and Treaties, shall be the supreme law of the land; and gentlemen contend, he remarked, that though the first clause does not make the Treaties entered into by the Executive the supreme law of the land, yet that this does; but its obvious and only meaning, when the whole of it is taken into view, is, that the Constitution, laws, and Treaties of the United States, are only meant to be declared supreme to constitutions and laws of the individual States. It is admitted, as a sound rule of construction, that to discover the true meaning of any instrument, it is fair to have recourse to the existing circumstances that produced it. When the constitution was formed, it was under a strong impression of the inconveniences experienced under the Confederation, when great obstruction was thrown in the way of the Treaty power, by the States refusing to carry into execution those agreed to by the constitutional authority. This was the evil the framers of the constitution had in view when they inserted this clause, and it has no relation to the powers of the General Government, which stand precisely in the same situation with or without it. It does not declare that Treaties shall abrogate laws, but that the States shall not have it in their power to throw impediments in the way of their execution. The words of the constitution cannot be understood otherwise than that the constitution, laws, and Treaties, shall exist together; it does not say that a Treaty shall repeal a law, or a law repeal a treaty. Then the constitution certainly contemplated that they never should be in opposition, for contradictory and opposing laws cannot exist at the same time; if they exist at the same time, they cannot be in opposition to each other. If it can be supposed that the PRESIDENT and Senate can make a Treaty in opposition to a law of the Legislature, and yet both the Treaty and the law be at the same time the supreme law of the land, an absurdity is supposed. But if it be admitted that the House shall have a participation in the business of Treaties, in cases which involve the Legislative authority, then the words of the constitution become intelligible, and both Treaties and laws may be at the same time the supreme law of the land. Gentlemen say, that Treaties, _ipso facto_, repeal anterior laws clashing with their provisions: they say, that the constitution, laws, and Treaties, stand upon the same footing in the constitution, being all declared the supreme law of the land. If Treaties can repeal laws, then laws can repeal the constitution, for the second (laws) are to the first (constitution) what the third (Treaties) are to the second (laws); then, also, by parity of reasoning, Treaties may repeal the constitution. If all stand on the same footing, and the precedence is according to the point of time, the last always prevailing, then Treaties may change the fundamental principles of our Government; then the PRESIDENT and Senate, by entering into stipulations with a foreign government, may give us a monarchy, may convert our PRESIDENT into a king, and our Senate into a nobility; for, say the gentlemen, Treaties are the law of the land as well as the constitution, and a subsequent law repeals those which are anterior. But these positions are false in all their parts; a law or a Treaty cannot repeal the constitution, nor can a Treaty repeal a law. If the manner in which the three words are placed in the constitution is to have any force, it would not favor the construction of the gentlemen; they contend for the supremacy of Treaties, whereas Treaties are last named, and the true construction from this source would be the reverse, when there was clashing. He next adverted to the lengths to which the mode of interpretation contended for by the gentlemen would carry them. It was never intended, he asserted, by the people, when they instituted this Government, that the Treaty power should possess this omnipotence. It was never intended that the PRESIDENT and Senate should have it in their power to effect a radical change in our Government, and stipulate with a foreign nation for a guarantee of the change. Laws contrary to the constitution are nugatory, and Treaties contrary to existing laws, the same; because, when in that stage, they are not concluded under the authority of the United States, but are only so (and then there is no longer any clashing) when once they have received the sanction of the Legislature. From the above, he concluded that the PRESIDENT and Senate originate Treaties, and that the Legislature to a certain extent should exercise a check upon this power. And upon these principles the British Treaty is not the supreme law of the land until a decision on it was had in the Legislature. Mr. FINDLAY.--It seems to be agreed by both parties that the express words of the constitution will not support either position without a liberty of construction. The difference of opinion is now confined to what construction is most agreeable to the general principles of the constitution. That the construction which gives the fullest scope to all the powers vested in the different departments of the Government, and which, by combining their operation, is the best calculated for the preservation of the Government itself, offers fairest to be the true one, cannot reasonably be doubted. The Legislative powers, to regulate commerce with foreign nations, to levy taxes, appropriate money, &c., are specifically vested in Congress, and as deposited in the Legislature, are secured by numerous negative checks, declaring what things Congress shall not do, and guards regulating the manner in which it shall exercise its powers on the proper subjects. The Treaty-making power is not vested in Congress; the negotiating part of making Treaties is partly of an Executive nature, and can be most conveniently exercised by that department, and is, therefore, vested in the PRESIDENT and Senate. The PRESIDENT shall have the power to make Treaties, two-thirds of the Senate agreeing therewith. Even the power of negotiating, which includes the timing of Treaties, the appointment of Envoys, and instructing them, and approving of Treaties, so far as to present them for ratification, are powers of great importance, and may put the Government in such circumstances as to render it expedient to ratify a Treaty, which, if it had not been agreed to by the negotiating agents, it would have rejected--are powers of great importance of themselves; but it is acknowledged that more than this is vested by the constitution in the Treaty-making powers. The power of making treaties is admitted to be so extensive as to embrace all subjects arising under the law of nations, for securing amity and friendship betwixt nations, and for the mutual protection of the citizens in their correspondence with each other. Authority for this purpose is not vested in Congress among the enumerated powers, but expressly given to the PRESIDENT and Senate; therefore, Treaties to this extent, ratified under their authority, are the laws of the land, according to the constitution. The powers specifically vested in Congress are so explicitly checked and guarded as to form an unequivocal limitation to the Treaty-making power, when it extends to powers specifically vested in the Legislature, consisting of the Senate and House of Representatives, with the approbation of the PRESIDENT. The Legislature cannot transfer its essential powers, nor evade them; the exercise of its privileges it may dispense with, but if it may dispense with or transfer any one Legislative power, it may, on the same principle, dispense with or transfer every power with which it is vested, and for the exercise of which the Legislature only are responsible. The Executive cannot assume or exercise any power expressly vested in the Legislature. If the Executive may, by an extension of the Treaty-making power, regulate commerce, make laws to raise and appropriate money, &c., or, which is the same thing, command laws to be made for carrying Treaties, which interfere with the Legislative powers, into effect; or if, as is contended, the Legislature has no moral power of discretion, no power to refuse to make laws to carry Treaties into effect, or even to form an opinion on the goodness or badness of Treaties, when they relate to powers explicitly intrusted to its deliberation: on the same principle all Legislative discretion may be exercised by the Treaty-making power without regard to the constitutional guards provided to prevent the abuses of those powers. For there is no Legislative power vested in Congress but what may be either directly or indirectly exercised by the Treaty-making power. If the Treaty-making power is admitted to the extent pleaded for, and the specific powers vested in Congress are admitted in the extent in which they are unequivocally expressed, we are reduced to a dilemma, and the constitution is necessarily admitted to have instituted two interfering Legislative authorities, acting in direct competition with each other on the same subjects, and both making supreme laws of the land; which though they may be nominally distinct, have the same effect on the citizens, with this difference only, that we may be relieved from the oppression of laws by a repeal of them, but cannot be relieved from the hardships resulting from a Treaty, without the consent of another nation. In advocating the resolution before the committee, we admit a reasonable latitude to both the Legislative and Treaty-making powers. Where the Treaty-making power extends itself to express Legislative objects, and where Legislative aid is absolutely necessary to carry the Treaty into effect, we contend that the Legislature in making such laws, exercise that moral power that is necessary for legislating in all other cases, and are not reduced to the situation of an executive officer, or mere treasurers of the United States. In this case, we say, that the powers are not intended to make war with each other; that the departments ought to concur in the exercise of them. This method preserves the exercise of both powers in their proper places; the other destroys the Legislative authority which is, by the constitution, the most explicitly vested, and precisely guarded. Mr. SMITH, of New Hampshire, said, he had not intended to have delivered his sentiments on the question before the committee, but as he did not fully agree in opinion with any gentleman who had spoken, it became necessary for him to express the grounds of his opinion. This he would do as briefly as possible. As this question involved the constitutional powers of the House, he viewed it as important; it was a delicate question. We were called upon to decide as to our own powers. For these reasons he thought that the discussion should be conducted with moderation, coolness, and candor; that such a temper was most favorable to truth. However gentlemen might differ, he observed, on other subjects, in this we are all agreed, that, in forming our judgments on all such questions, the constitution must be our sole guide. It was this instrument, he said, which defines the powers given to the General Government, and which distributes these powers among the several departments. If the constitution had not assigned to each its peculiar portion of power, these departments, like the original elements, would be engaged in a perpetual war for power. All would be confusion, disorder, and anarchy. He proposed, in the first place, to give what he conceived to be the true exposition of the constitution, on the subject of Treaties in general. He should then, he said, state as correctly as possible the exposition or construction of the constitution contended for by the gentleman opposed to him. He lamented that he could not do this with greater accuracy. The gentlemen had not agreed among themselves. He could only state what seemed to be the general current of opinion. The construction which he advocated was, that, by the Constitution of the United States, the power of making Treaties is exclusively vested in the PRESIDENT and two-thirds of the Senate. That this power extends to all kinds of Treaties--of Peace, of Alliance, of Amity, of Commerce and Navigation, and embraces all those subjects, and comprehends all those objects, which can with propriety be the subject of convention or compact between nations; that is, every thing in which they have a mutual or common interest. That a compact so made which does not change the constitution, and which does not palpably and manifestly betray or sacrifice the private interests of the State, (which is invalid on natural principles,) is binding on the nation without any sanction on the part of the House of Representatives. That such a Treaty is by the constitution paramount to the constitution and laws of the several States; that the Judges in the several States are bound to obey it. That it is by the reason and nature of the thing paramount to a law of the United States, and abrogates and annuls all pre-existing laws contrary to it, and, as long as it remains in force, limits and restricts the power of the Legislature of the United States to pass any laws in contravention of it. That, when such a Treaty requires money to be provided, or rather Legislative acts to be performed, it is the duty of the Legislature to provide and appropriate the money in the same manner as it is their duty to provide and appropriate money for the payment of our debts. That the nation must judge whether it be constitutionally formed or not; whether the stipulations contained in it be such as in good faith they are bound to execute, and whether any circumstances have happened which would justify a non-observance of it. That on these subjects they must exercise a sound discretion. That neither the nation, nor any departments of the Government, are at liberty to reject a Treaty merely because it is a hard bargain. The doctrine on the other side is-- That the power to make Treaties is limited to such objects as are not comprehended and included in the specified powers given to Congress by the constitution; or, that a Treaty which comprehends or embraces any such object is not valid; that is, not the supreme law of the land, until the House of Representatives have added their sanction to it; or, if this be not admitted, that the House of Representatives, by the theory of our constitution, have check on the Treaty-making power, in providing and appropriating money necessary to carry a Treaty into effect; which power, it is admitted on all hands, they possess; and thus in this way control the doings of the PRESIDENT and Senate, and can reject a Treaty, or at least certain parts of it. That they can and ought to do this if they believe the Treaty to be a bad one, though not injurious in an extreme, such as manifestly betraying or sacrificing the private interest of the State, (which by the Law of Nations nullifies such a compact,) and which on all hands would readily be admitted as a sufficient cause for refusing to carry it into execution. Mr. WILLIAM LYMAN began with remarking, that the gentlemen opposed to the resolution had at first contended, that the House had not a constitutional right to require papers of the Executive, relative to any subject whatever; and that if a requisition was made, it would be discretionary with the Executive, whether it should be complied with or not. To this he replied, that the House possessed the power of impeachment solely, and that this authority certainly implied the right to inspect every paper and transaction in any department, otherwise the power of impeachment could never be exercised with any effect. But not to rely solely on this, he recollected one case, he said, perfectly in point, which was in the correspondence of the former Secretary of State (Mr. JEFFERSON) with the British Minister, communicated to the House. From dates and references, there appeared in that correspondence a chasm. The House, therefore, passed a resolution requesting the Executive to lay before them what had been omitted; and further, the resolution in that case was offered by the gentleman from South Carolina, (Mr. SMITH,) who was now so vehemently opposed to the present. The right of calling for papers was sanctioned, he said, by the uniform and undeniable practice of the House ever since the organization of the Government; they had called for papers and information whenever it was judged expedient; and he asserted, that the House had the fullest right to the possession of any papers in the Executive department; they were constituted the especial guardians of the people for that purpose; and he would undertake to say, that this was the first time it had ever been controverted. In order to ascertain the powers of the House, he would advert to the constitution. In the first article and first section, it was declared, "that all Legislative powers therein granted, were vested in a Congress, to consist of a Senate and House of Representatives;" and in the eighth section of the same article, the powers granted were defined and specified, such as to lay and collect taxes, borrow money, regulate commerce, and to exercise other important powers enumerated in the several clauses of that important section. He said it was unnecessary to read them, as they had been so frequently referred to in the course of the debate; but he would request gentlemen to pause and reflect whether it could be supposed that this section was not to be efficacious and operative; was it possibly conceivable that a section so definite and so important had been introduced in the constitution merely for the purpose of being nullified and rendered nugatory by a subsequent article or section? The very supposition, he said, appeared to him the height of absurdity, and an affront to common sense; and yet this would be the case, if the doctrines advanced were true, viz: that Treaties, when made and ratified by the PRESIDENT and Senate, were supreme law, and that they controlled and repealed all laws that stood in their way. Congress could neither regulate commerce, borrow money, prescribe rules of naturalization, nor legislate on any other subject, because the PRESIDENT and Senate, by Treaty, would abrogate them all. It was in vain to consult the House of Representatives in the formation of laws, if they thus were liable to be annulled at the pleasure of the PRESIDENT and Senate. The present question, he said, was not, whether the House should make Treaties, but whether the PRESIDENT and Senate should make laws; all the power contended for on the part of the House was the power of self-preservation; it was a repelling power, a power to prevent the PRESIDENT and Senate, under the color of making Treaties, from making all the laws. A gentleman from Connecticut (Mr. GRISWOLD) had said, that the Legislative power occupied all ground, and was vested in Congress; and that the Treaty-making power occupied all ground, and was vested in the PRESIDENT and Senate; and that although Congress, who were the agents for the people, should make laws, yet, that the PRESIDENT and Senate, who were also their agents, might, by Treaty, repeal them. This, Mr. L. said, contradicted a sound axiom, and one he had never before heard controverted, viz: that it required the same power to repeal as to make a law. Such incongruities as the gentleman had advanced, Mr. L. said, could never be reduced to practice; two persons could not be possessed fully and completely of the same thing and at the same time. The gentleman could never reconcile his positions, the one would certainly defeat the other; upon his construction, the Treaty-making power must absorb the Legislative power, or the Legislative power would absorb the Treaty-making power. It appeared, therefore, to him, that constitutions, laws, and all writings, ought to receive such interpretation and construction as to render them consistent with themselves; and that it was highly presumptive a construction was erroneous when it produced an absurd conclusion. If the several parts of the constitution were compared and critically examined, the determination must be, that, although the PRESIDENT and Senate could make Treaties, yet it could not be intended, those Treaties that entrenched on the specific Legislative powers of Congress, unless with their concurrence and consent; otherwise, it followed, that, although the three branches were consulted in the enacting laws, two might repeal them. But it had been asserted that this power, insisted upon on the part of the House, was a novel doctrine, introduced merely upon the spur of the present occasion; notwithstanding which, it had been proved by several gentlemen who had spoken upon the question, that this interpretation was given to the constitution in most of the State Conventions at the time of its adoption; that the same interpretation had also been given, at that time, by the writers both for and against its adoption. It had appeared, from the extracts of publications at that period, that whatever might have been the diversity of opinion in other respects relative to the constitution, that, in this construction, at least, both its friends and opposers perfectly agreed. This principle, then, being thus settled and understood, it remained only to show that it had been invariably admitted and recognized from the first organization of the Government until this time. The first Treaty that had been made under this constitution, he said, was that with the Creek Indians, in the year 1789; previously to the making of which, the PRESIDENT communicated the subject to Congress; an extract from which communication he would read, viz: "If it should be the judgment of Congress, that it would be most expedient to terminate all differences in the Southern district, and to lay the foundation for future confidence by an amicable Treaty with the Indian tribes in that quarter, I think proper to suggest," &c. Here, Mr. L. said, he wished it might be particularly noticed, that this subject was expressly referred to the judgment of Congress to determine on its expediency or inexpediency, and for what purpose, he would ask, was it referred? If the Senate and PRESIDENT possessed the full power of making Treaties, there could be no occasion for consulting the House of Representatives; and yet, in this case, the first that presented itself, it had been conceived necessary. In consequence of this communication, Congress had judged it expedient to hold the Treaty; and on the 20th of August, the same year, enacted a law in which the sum of twenty thousand dollars was appropriated for that purpose; and, in conformity thereto, the PRESIDENT appointed Commissioners and gave them instructions, which instructions had been also communicated to Congress, from which he would also read one paragraph; it was as follows: "You will observe that the whole sum that can be constitutionally expended for the proposed Treaty shall not exceed twenty thousand dollars." On this, he said, any commentary was unnecessary, as the principle that the Legislative power operated to restrain the power of making Treaties, was so fully and explicitly recognized and admitted by the PRESIDENT himself. By pushing inquiry further, it would be found that, in January, 1790, in consequence of communications from the Executive which were referred to a select committee, and a report made thereon, the House came to the following resolution, to wit: "That provision ought to be made by law for holding a Treaty with the Wabash, Miami, and other Indian tribes north-west of the river Ohio." In March following, a law was made, the title of which was "An act entitled an act providing for holding a Treaty to establish peace with certain Indian tribes." In March, 1791, the sum of twenty thousand dollars was appropriated for obtaining a recognition of the Treaty with the Emperor of Morocco. In March, 1793, one hundred thousand dollars were appropriated to defray the expense of a Treaty with the Indian tribes north-west of the river Ohio. Thus it was apparent that laws had always been deemed necessary to provide for holding Treaties and for defraying the expenses thereof.[71] MARCH 17.--In Committee of the Whole, on Mr. LIVINGSTON's resolution. Mr. REED said, he saw no necessity for the papers referred to in the resolution. If the constitutionality of the Treaty should be questioned, or the propriety of making appropriations, these questions, he conceived, must be determined by comparing the Treaty with the constitution, and by attending to those stipulations contained in the Treaty itself. It was not his intention to have troubled the committee by speaking on this occasion; but perceiving that some gentlemen, in the course of the debate, had gone further into the opposite extremes than he was prepared at present to follow them, he felt as if he ought to express his own sentiments with regard to the constitutional rights of that House relative to the Treaty in question. The Treaty was undoubtedly negotiated, ratified, and promulgated by constitutional authority. The PRESIDENT, with the advice and consent of two-thirds of the Senate, was, in his opinion, unquestionably that authority which the United States had authorized to make Treaties. But still it seemed taken for granted that some agency of that House, in its Legislative capacity, would be needed in order to carry the aforesaid Treaty into effect. A question, therefore, arose, viz: Was that House, in all such cases, bound and obliged to put so implicit and absolute a confidence in the Executive or in Treaties as would render it entirely unnecessary to have any opinion of their own about them, or the probable consequences of their operation? For his part, if he had never seen the Treaty in contemplation, and were perfectly ignorant of its contents, or, if he fully believed, as a citizen, that it was unconstitutional, or calculated to ruin, or very materially injure the country, he should not think himself justifiable in voting to appropriate money for the purpose of carrying it into effect. It had been conceded by gentlemen that if a Treaty were evidently unconstitutional, it would not be wrong to withhold appropriations; and he conceived that a Treaty might possibly be so injurious in its effects as to justify such a measure. Supposing such a possible event should ever actually happen, did not the right of refusing to legislate in support of the said Treaty involve the right of previously examining all Treaties which need the aid of the Legislature, and of judging for themselves whether it would be proper or improper to make laws for the purpose of carrying them into effect? In making Treaties the Executive would use his own discretion, keeping within the limits prescribed for him by the constitution. In making laws the Legislature must use their own discretion, always keeping within those limits and bounds which the constitution had fixed for them. He said, the discretionary right here contended for was not the right of doing wrong; it was not the right of violating the constitution; it was not the right of supporting a Treaty which ought to be defeated, nor of defeating a Treaty which ought to be supported; but, simply the right of judging for themselves, whether they ought, by their own act and deed, in the character of Legislators, to appropriate by law such sums of money as would be needed in order to support an existing Treaty, all things and circumstances relating thereto being suitably examined and properly considered. Perhaps it would be objected, that the constitution nowhere expressly gave the Legislators that right. He answered, the right was not precluded, but implied, and, in some respects, evidently one of the original and essential rights of man; a law of nature, prior and superior to all other laws; a law never to be transgressed in any station whatsoever. Individuals, in many cases at least, had a right to exercise their own discretion with respect to the propriety of submitting to a civil law or of risking the penalty, the consequence of disobedience; and, as a branch of the Legislature, he believed they had a right to deliberate and consult, among other things, the expediency and duty of making or of refusing to make appropriations, even in the case of a Treaty. It appeared to him that, in legislating, the Legislature should have this right of judging for themselves with respect to the propriety of making or refusing to make any law whatsoever. In most cases their duty would perhaps appear plain and obvious, particularly in the case of appropriating money where a law or Treaty actually existed. However, the obligation did not arise wholly from the circumstance of an existing law, but partly from the nature, reasonableness, and tendency of the thing itself. A Treaty negotiated by constitutional authority was, he contended, a solemn compact between two nations. It was an important consideration; but he thought they might, with propriety, attend to other considerations, for and against it, especially when their own aid was required, in order to carry it fully into effect. This he conceived was the right of the House, and no encroachment upon the prerogative of the other branches. An appropriation was a specific sum, appropriated by a particular law to a particular purpose. The right of appropriating the public money was not a natural right, but a right derived from the constitution; and the Legislature were to exercise that right according to the honest dictates of their own best discretion; excepting those instances in which they were expressly restricted by the constitution itself, as in the cases of compensation for the services of the President of the United States, and for the services of the Judges. Congress might deliberate and act discretionally in stating at first their salaries. Mr. TRACY said, he felt a diffidence in giving his sentiments in that House, which was much increased when he considered the ability with which the question had already been discussed, and the length of time it had consumed; but the magnitude of the question would justify him, in his own opinion, for asking of the committee to indulge him with a small portion of their time and attention. This was the first time, since the adoption of the present Government, that a discussion of the important constitutional question of the extent of the Treaty-making power could have taken place, as it respected a foreign nation; and, of course, would probably form a precedent for all future inquiries of a similar nature. The constitutional rights of the House of Representatives to interfere with Treaties, might properly be considered in two points of view: 1. Had they a right to assist in the formation of Treaties in such a manner as that a Treaty would be incomplete without their sanction officially given? And, 2. Had they a right to refuse appropriations of moneys, (if necessary to carry into effect some provisions in a Treaty,) and in that way defeat its operation? He acknowledged, if the first position could be supported, the right to call for the papers would be conclusive; but, he contended, they could not be wanted on the latter ground. If the constitution was examined, it would be found the Treaty-making power was given to the PRESIDENT; and no interference, or right given to any other men or body of men but to two-thirds of the Senate, and that by way of consent or advice. Could it be pretended there was a shadow of authority given to the House of Representatives? In the constitution it is said, "all Legislative powers herein granted shall be vested in a Congress," &c. Would it be pretended, had the constitution gone no further, that the then thirteen independent sovereign States, by that part of it, had parted with the Treaty-making power? No! they reserved a great share of Legislative power to themselves, and delegated it to Congress only in certain cases, best calculated, in their opinions, to advance their own happiness; and unquestionably reserved every right, power, and sovereignty, which they did not expressly give away by the constitution itself. The powers of legislation are the powers of making statutes in all cases respecting men and things within the jurisdiction of the Legislature; but it could by no means in its nature comprehend the Treaty-making power, which is the power of contracting or making bargains in the name of a nation, as a moral person, with another nation or moral person, for their mutual benefit, and to be binding and operative on them, as parties to the contract or bargain. And although this had binding force on the nation, when once formed and completed, yet it was not a Legislative act. But the constitution went further: it had actually designated the PRESIDENT, with the advice of the Senate, to be a Plenipotentiary for the formation of Treaties. _Vattel_, page 179, speaking of the various customs of nations, in the deposit of this power, says: "All conductors of States (meaning the Executives) have not the powers, of themselves, of making public Treaties: some are obliged to take the advice of a Senate, or of the Representatives of a nation. In the fundamental laws of each State we must see what is the power of contracting, with validity, in the name of a State." He supposed, by "fundamental laws," _Vattel_ must mean the constitution of a State; if so, it will not follow that the supreme Legislative or Executive power of a State, as such, have necessarily the power of making Treaties; it might be, and in most countries was, an object of precise delegation, and probably always, or certainly more commonly, given to the Executive. This constitution had precisely given it to the Executive, subjoining the advice and consent of the Senate; and in this particular, and in no other, had the individual sovereignties delegated all their power without limitation. It was necessary and proper this power should be lodged somewhere, and equally necessary it should be entire and unlimited, to meet every exigency that the welfare of the nation might require. It had been said, that general expressions of power would be limited by specific: this was a general truth, but he denied the application which had been attempted. It was said, the Treaty-making power is a general power; the Congress has a specific power to regulate commerce, &c. Of course, the specific power to regulate commerce will check the operation of a Treaty of a commercial nature. He said this part of the subject had been so ably and conclusively managed by a gentleman from New Hampshire, yesterday, (Mr. SMITH,) that he would not exhaust the patience of the committee by going over the same ground. He would however observe, that by the common rule of construction, all the powers given to the PRESIDENT which could, and in their nature would, check or operate on legislation, must be considered as a specific portion of power carved out of the general power given in the former part of the instrument. The general powers of legislation first given to Congress, and in the next place specific powers given to the PRESIDENT, could not fail to lead the mind directly to such a construction. "All Legislative powers, &c., are vested in a Congress," but the PRESIDENT has a qualified and specific check. Power to regulate commerce with foreign nations is vested in Congress, yet the specific power of contracting, bargaining, or making a Treaty, is, so far forth as it may touch Legislative points, a specific check upon it. Yet he acknowledged this was not his chief reliance. The nature of the case was such, that whatever internal regulations, or those relating to external and foreign commercial subjects, which may have become objects of Legislative attention, oppose or come in competition with a contract or bargain about the same things, must give way. It does not exclude legislation from the object of foreign commerce, but establishes certain points within which it shall operate, and which it cannot violate. The thirteen sovereignties possessing all the power, gave to Congress a certain portion of Legislative authority; but they certainly could give to the Executive, or any other body, the power to make Treaties. This he contended they had done, by the words of the constitution, in an unlimited manner. It had been said, that the constitution was similar to that of Great Britain in the part respecting Treaties. This, he contended, was an incorrect statement: in his opinion they were very different. The constitution of Great Britain was formed almost entirely of usages. It had been, for a great length of time, the usage for the King to lay before Parliament, for their approbation, Treaties--especially those of a commercial nature. If this was a usage, all that could be said of it was, that it was a part of their constitution. He supposed this right had been given by the Crown, at some time, to obtain a grant of money; but he could not recollect that the Parliament, with all their pretensions to a right of rejecting Treaties, had ever exercised it. They generally made a pretext of dislike to a Treaty to change the Administration. This had been often done; it was on the Treaty of Peace of 1783. The Treaty of Utrecht, which was concluded in 1713, had been cited as an instance of rejection by the British Parliament. It was a fact, in that instance, that nothing was rejected but a conditional Treaty. In forming the Treaty, there were many distinct parts: one part of it was a Commercial Treaty between England and France, separately signed and conditional--that is, "within the space of two months after a law shall pass in Great Britain, whereby it shall be sufficiently provided, &c., the general tariff made in France, &c., shall take place there again, &c." The law did not pass in Great Britain, and of course the Commercial Treaty failed. Mr. T. said he had searched all the Treaties made by Great Britain since the Treaty of Munster, which, if his memory was accurate, was concluded in 1648, and could not find an instance of the Parliament's refusing their assent to a Treaty made unconditionally; and he really believed, if they practised fully on the right they claimed, it would very soon destroy their Government. It had been said, _Blackstone_ in his Commentaries had defined the powers of the King of Great Britain to be unlimited in the making of Treaties. He observed, that, let _Blackstone_ or any other Crown lawyer say what he would in favor of prerogative, it was well known the usage had been to submit to Parliament the consideration of Treaties, and that usage was a part of their constitution; and he rejoiced, that in that particular the constitution of his country was different. Gentlemen had said, Shall this House not have as much power respecting Treaties as the House of Commons in Great Britain? This question was both improper in itself, and calculated to mislead. Were we in convention, and forming a constitution, it might have weight; but in a cool discussion of a constitution already formed and adopted, and the question is, What powers are given? it could not be proper. And it ought to be remembered that Parliament, and not the Commons alone, had this right in Great Britain. In defining the relative powers given by the Constitution, there was danger of the popular branch making encroachments on the other branches, under pretence of favoring the liberties of the people. This pretence, however grateful it might sound in debate, he thought was but a pretence. It was the duty of the House to make a stand against all encroachments on their own rights, if any were attempted, but it must equally be their duty to exercise great caution not to encroach on others. He said, he considered the responsibility which was so very necessary on those in the exercise of the Treaty-making power could not exist if it was extended to the House of Representatives. He acknowledged if a Treaty was unconstitutional, it was not then a contract of binding force, and of course contained no obligation of any kind whatever; if a Treaty was so terrible in itself, and manifested consequences ruinous to the nation, no argument could be drawn from such a statement to establish general rules. The moral law had said, we shall not kill, and yet a man may be placed in such a situation, as that he not only may, but it becomes his duty to kill; could it be said a general right to kill is proved by this concession? But could gentlemen seriously say, we now wanted these papers, mentioned in the resolution, to assist us in determining upon the question of appropriation? He thought not. He supposed the first extensive and unlimited right of interfering in the making of a Commercial Treaty could alone justify the call, and he believed that ground must be given up. He said his colleagues (Messrs. SMITH and GRISWOLD) had asserted no other doctrines than such as he now advocated, and yet they had been accused of saying that this House had no will of their own, but must in all cases implicitly obey the PRESIDENT and Senate. The construction he had given to the constitution he believed to be just, and trusted he could be under no necessity of declaring the purity of his intentions, as he did not doubt but every member of the House was guided in the investigation by the purest motives. Mr. S. SMITH said, that at the present state of the discussion, little was left but gleanings, and to bear testimony against a doctrine that appeared to him big with consequences fatal to the true interests of the country. He would not pursue the sophistry of the gentleman last up (Mr. TRACY) through all its windings and turnings; he would only observe that the gentleman had read some, and quoted much to prove that Treaties were the supreme law--a doctrine that was admitted by all, that is, when under the authority of the United States. He said the resolution requested certain papers to be laid before the House. What had been the custom of the House heretofore? Invariably to ask for all and every paper that might lead to information. He well recollected that, in 1793, a great ferment had arisen in the public mind in consequence of the Proclamation of Neutrality, (which had always appeared to him to be a wise measure,) that on the meeting of Congress a great number of useful papers relative to our situation with respect to foreign nations were submitted, some of them of a most confidential nature, relating to Treaties then depending, particularly that with Spain. The PRESIDENT was not afraid to place his confidence in that House, and he was right; the public mind was restored to quiet, and the people of Kentucky (then restless) were satisfied that the Executive were doing every thing in their power to obtain the free navigation of the Mississippi. The PRESIDENT went further; he sent a special agent to Kentucky to communicate to that Government the line of conduct then pursuing for their welfare. Had the public mind been less disturbed on the late Treaty than in 1793? He thought not; and that every paper which would tend to satisfy that the Treaty was expedient, or to give information on a subject that must be discussed before that House, might with propriety be asked for. A gentleman from Vermont (Mr. BUCK) repeated by another from South Carolina (Mr. SMITH) said, to vote for this resolution would be treason against the laws and constitution. Why this harsh language? Did it lead to a discovery of truth? Where did these gentlemen find that definition of treason? Not in the constitution, for there it was properly defined. Mr. S. said, gentlemen had taken a ground that appeared alarming, viz: That the PRESIDENT and two-thirds of the Senate may, by the aid of a Treaty, do any thing, and every thing, not morally impossible, (provided they do not infringe on the constitution,) and that the immediate Representatives forming this House, have only to be informed thereof, and to obey. Let us pause for a moment, and ask, Was this possible? Could this be the fair construction of our so much boasted constitution? If it should be, he would not regret the services rendered his country during the late glorious Revolution, nor the part he had taken to promote the adoption of the constitution; nor would he, by inflammatory speeches within, nor his actions without doors, do any thing that should tend to destroy the harmony then subsisting, or to disunite a people whom nature and relative wants seemed to have connected together; but he would endeavor, in a constitutional manner, to obtain amendments to the constitution, which would prevent the evil in future. But is there occasion for amendments to the Treaty-making power? He thought not. There were checks and balances sufficient in the constitution to prevent the evils that might arise out of it. He said, he could offer nothing new, but would pursue the train of reasoning began by a gentleman from Virginia, (Mr. MADISON.) In the eighth section of the first article of the constitution, Congress have power to lay duties, &c., &c., but all duties shall be uniform throughout the United States: Can regulate trade with foreign nations: Can establish a uniform rule of naturalization. Congress, then, although they have the power to lay taxes and duties, and to make laws of naturalization, are bound to make them uniform; and in another article, are prevented from giving a preference by any regulation of commerce or revenue to the ports of one State over those of another. But the Treaty-making power is not so confined; it may relieve one of our ports from this uniformity of duties, or one of the States from the uniformity of naturalization; that is, it may relieve goods imported in British bottoms into New York, from the one-tenth extra duty, and let it remain on all the other ports of the Union. But, say gentlemen, it is unfair to reason against the use of power by its probable abuses. He thought it advisable to guard against abuses; but has this abuse not already taken place? He thought it had. Not with respect to a port of the consequence of New York; that would have been too palpable; but on the Lakes, by the third article of the Treaty, goods imported to the territory in that quarter, in British bottoms, are subjected to no higher duty than goods imported in American vessels to the Atlantic ports. Here appeared a departure from that uniformity required by the constitution; here appeared a preference given to the ports of one State over those of another; and yet gentlemen contend, that the House have no right to inquire into the business. Indeed, so delicate was one gentleman (Mr. BUCK) on the subject, that he opposed committing the Algerine Treaty, lest it should establish a claim to investigation! It was true, the trade on the Lakes was small, but it would increase. Thus, although Congress were very wisely restricted, when laying duties, to make them uniform, yet the PRESIDENT and Senate would be capable, by the assistance of a foreign power, to destroy that uniformity. Mr. S. then stated, that he did not mean, and he hoped he should not be understood to preclude himself from voting to carry the Treaty into effect. He held himself entirely open to conviction; and if he should find that the same was expedient, whatever might be his opinion at present on the instrument, (and in truth he did not think it good,) yet he would keep himself at full liberty to act as he might think most to the interest of this country, when that subject should come before the House. MARCH 18.--In Committee of the Whole, on Mr. LIVINGSTON's resolution: Mr. ISAAC SMITH did not pretend to prescribe limits to other men's faith, but he never could believe that men, as wise as those who compose the convention, would have left so important a regulation, as was now contended for by some gentlemen, to mere uncertain construction. He believed, if they intended that House should have had an agency in the making of Treaties, they would have said so in express terms. Had they done so? Nothing like it. So far from it, that they had unequivocally appropriated the Treaty-making power to the PRESIDENT and two-thirds of the Senate, in terms as express and positive as words could form: and the gentleman in opposition could not, did not deny it. But, say they, this power may be abused, shamefully abused, and, therefore, we will construe it out of the hands the people have placed it in. We will assume and declare ourselves the sole guardians of the people, and we will cry out liberty, liberty; and, as the people love the sound, (he hoped they would always love the substance,) perhaps they will believe us. Here rests the fallacy. The people knew, whether they knew or not, that they chose the PRESIDENT, and they firmly believe, as well they may, that he is their guardian. The people knew, also, that they chose the Senators, and they likewise think they are their guardians. How we, said he, became sole guardians, will require a modesty superior to that of New England to explain. The people have declared that the PRESIDENT and Senate shall make Treaties, without a single exception, and, lest there should be any mistake or cavilling about it, they have put it in written words, as they thought, too plain to be doubted, too positive to be contradicted. It appeared to him that it was a sufficient answer, though a short one, to all the laborious arguments had in favor of their interference, to say, that the people wills it otherwise: _sic volo, sic jubeo, stat pro ratione voluntas_. If they had under consideration alterations or amendments to the constitution, those arguments might, perhaps, be proper; but, as matters now stand, they are mere inapplicable declamation. Mr. LIVINGSTON said, that the very able support this resolution had received, might seem to release him from any obligation of speaking in its defence; nor would he now trouble the committee with any observations on the subject, if those he made on the introduction of the business had not been misstated, and his subsequent explanation partly suppressed. He had stated, when he had laid the resolution on the table, as a reason for requesting the papers, that important and constitutional questions would probably arise on the discussion of the Treaty. It had been represented, (certainly from misapprehension, not design,) that he confined the use of the papers to the elucidation of a constitutional question only; and it had been asked, with an air of great triumph, how the instructions and correspondence could throw any light on the question of constitutionality, to decide which nothing was necessary but a comparison of the Treaty with the constitution? Mr. L. said he had not confined the utility of the papers to that point, but that, if he had, it would not be difficult to suppose a case in which they were necessary to determine the constitutionality of the Treaty. The constitution, he said, gave to the PRESIDENT the power to make Treaties, "by and with the advice and consent of the Senate." Men, respectable for their talents and patriotism, had supposed that, by the true construction of this clause, the PRESIDENT could make no Treaty unless by the previous advice and consent of the Senate; in other words, that the Senate should advise the making of a Treaty, which they could only do before it was commenced; and should consent to it by a ratification after it was concluded. He would give no positive opinion on this subject, but supposed it a point worthy the attention of the House. The construction, he said, appeared reasonable, and had been heretofore sanctioned by practice. Two instances he could recollect; one was in the Treaty of Holston, where Governor Blount was "vested with full powers and specially empowered by and with the advice and consent of the Senate." The other instance was found in the answer of the PRESIDENT to the French Minister, who offered to enter into negotiations for a Treaty of Commerce, which the PRESIDENT declined, by referring him to the meeting of the Senate, which was not then in session. If the PRESIDENT supposed he could not commence a negotiation without the concurrence of the Senate, it gave force to this construction; and, if it was a true one, nothing was more demonstrable than that the papers were necessary to determine whether the Treaty in this point had been constitutionally made. Two positions had been assumed, differing not materially in the power ascribed to Treaties, but distinguished chiefly by the mode of applying this power. By some it was contended, that the interference of the Legislature was necessary in some instances, but that the Treaty operated by way of moral obligation, to enforce the necessary steps to give it validity; and that though there is a physical power of refusal, yet it ought in no case to operate against the superior obligation. Others had asserted, that Treaties being the supreme law, might operate directly, without the intervention of any other body. That where existing Legislative acts opposed their execution, the Treaty was paramount, and could repeal them. These positions were in fact the same, because, if a Treaty was, at all events, to have effect, it was perfectly immaterial, whether it operated directly by its own power, or indirectly by the instrumentality of another body; both, he thought, equally subversive of the principles of the Government; but the first was most degrading to the Legislative dignity. Nor could he discover from what part of the constitution it was inferred. Wherever, in that instrument, a duty was imposed, it was clearly and explicitly assigned, as in case of the PRESIDENT's compensation, that of the judges, and many other instances. It is not, then, to be conceived, that so important an obligation as this should have been left to implication. If it had been intended so to annihilate this discretion, the same language would have been used, "Congress shall pass laws to carry every Treaty into effect," but nothing of this kind appears. Again, if it had been intended to make Treaties paramount over laws, it would seem to have been the more simple mode, to have dispensed with their interference. Why leave a phantom of discretion, an unreal mockery of power, in the hands of the Legislature? In order to get rid of this difficulty, some gentlemen seem willing to allow a species of volition, but it was a pittance that would be scarcely worth accepting. In cases of extreme necessity, and in others, where, from corruption or other good cause, the compact is void, this House, they say, may refuse to carry it into effect. In the first case, where it is impossible to give efficacy to a Treaty, the power of refusing it was surely of little value. And where the compact is void in itself, the liberty of not being bound by it, would scarcely be contended for. If the subject were less serious, Mr. L. said, one would be tempted to smile at the efforts that are made to reconcile the constitutional predestination contended for, with the free agency of discretion. It was as difficult to be understood, as the most entangled theological controversy, and, like most disputants in that science, they concluded with anathemas against all who could not comprehend, or would not believe them. We have a discretion, whether to act or not, say they; but we are under an obligation to act, and if we do not, we are guilty of treason and rebellion. This was the same kind of discretion a man has, whether he will commit murder or let it alone; he may do it, but if he does, he will be hanged. This was a worse alternative than that generally called Hobson's choice--that was, "this or nothing;" but here we are told, "do this, or be hanged for a traitor." So that hereafter, when any one intended to express an inevitable necessity, he would call it Congressional discretion. If, then, the Treaty does not operate by way of obligation on the Legislative power, let us, said Mr. L., examine, whether, as is contended, "a Treaty is paramount to a law, and can repeal it, though it, itself, cannot be acted on by the Legislative power;" this, he said, was the most important question that had ever been agitated within these walls. It evidently tended to the substitution of a foreign power, in lieu of the popular branch; it was replete with the most serious evils. He could never suppose so great and pernicious an absurdity was contemplated by the constitution; but, if such was the true construction, great as the evil was, we must submit, until it could be legally amended. The constitution gave all Legislative power to the Congress of the United States; vested the power of making Treaties in the PRESIDENT and Senate, and declared that the constitution, the laws made in pursuance thereof, and Treaties made under the authority of the United States, should be the supreme law of the land. He had always considered the order in which this enumeration was made as descriptive of the relative authority of each. 1st. The constitution, which no other act could operate on. 2d. The laws made in pursuance thereof. 3d. Treaties, when they contradicted neither; for, if no weight was given to this argument, Treaties would be superior, both to the constitution and the laws, as there is no restriction with respect to them, as in the case of laws, that they be made pursuant to the constitution. He did not believe gentlemen would contend for this absurdity; they must therefore refer to the order of the enumeration, to measure the relative effect of the constitution, laws, and Treaties. If the objects of Legislation and of Treaty compact could be kept distinct, no question would arise, there would be no pretext for interference; but they could not; almost every object of legislation might also become that of compact with a foreign power. But it was probable, Mr. L. said, that the Treaty power was intended to be placed in the PRESIDENT and Senate to the same extent only in which it existed in the Executive of Great Britain. The words of our constitution on this point were the same made use of by British writers in defining the corresponding power in their Government, and it seemed evident that some of its features (and this was none of the least prominent) were drawn from that original. He was happy that the parallel was not perfect in other instances. He thought it completely so in this; and that the practice therefore of that Government would, in some measure, lead to the true construction of this. Aware of the weight of precedents drawn from English history, gentlemen endeavored to weaken them by a very ingenious argument: "The British Constitution," say they, "is not written, it is formed of usages; if you prove, therefore, that it is the usage for British Parliaments to sanction Treaties, you prove it to be their constitution, but you do not prove it to be ours." It was true, Mr. L. observed, that the English Constitution was formed partly of immemorial usages; but it was also true, that those usages were collected in books of authority, and that the different powers of Government were generally designated, so that the leading points in their constitution were as well known and defined as they were in that of America. It had been shown by a reference to writers of the best authority, that, by the Constitution of England, the power of making all Treaties was in the King; but as the power of making all laws was in the Parliament, this latter, as the greater power, controlled the former, whenever it affected objects of legislation. Thus, in the Constitution of the United States, he contended, the power of making Treaties, that is, all Treaties, vested in the PRESIDENT and Senate; but, as all Legislative power is vested in Congress, no Treaty operating upon any object of legislation can take effect until it receives the sanction of Congress. The practice, too, was the same. The King asserted his right of making and completing Treaties, by not only concluding, but ratifying them, before they were submitted to Parliament, but he believed no Commercial Treaty was proclaimed as the law of the land before it had received the sanction of Parliament. Indeed, it was impossible, in any country, and under any constitution, where the Legislative and Treaty-making powers are lodged in different hands, that any other construction can be given without running into the absurdity he had before hinted at, of making two different powers supreme over the same object at the same time. Our ideas had been confounded by referring to the practice of Governments where the two powers were united, and where a ratification gave the consent of both. If, then, there was a perfect analogy between the power vested in the Crown in England, and that delegated to the PRESIDENT and Senate in America, on the subject of Treaties; and if the Parliament, by virtue of its general Legislative authority, was in the practice of giving or withholding its sanction to Treaties concluded by the King, it was but a fair inference to say, that the same discretion existed in Congress. Some instances of the exercise of this power by Parliament, had been before quoted by others. The inexecution of the Treaty of Utrecht, in consequence of Parliamentary opposition, and the difficulties with which the Commercial Treaty with France was carried through the House of Commons, in 1787, had been already noticed. He would mention two other precedents drawn from the same source equally striking, or perhaps more so, as the course of proceeding there followed was precisely that which was proposed by the resolution in debate. The first was the proceeding on the Barrier Treaty, taken from the 5th vol. Parl. Debates, p. 43, where the House of Commons began, by a resolution to address the Queen, "that all instruction and orders given to the Plenipotentiaries that transacted the Barrier Treaty, and also all Treaties mentioned and referred to in the said Treaty, might be laid before the House, except such Treaties as they already had." We are told in the subsequent page, that on the 13th, that is, only two days after the request, "Mr. Secretary St. John presented to the House, by Her Majesty's command, a copy of the instructions to the Duke of Marlborough and Lord Townsend, about the Barrier Treaty, extracts of letters from Mr. Boyle to Lord Townsend, concerning the said Treaty; also a copy of the Preliminary Articles, signed at the Hague; the titles of which copies and extracts of letters were referred to the Committee of the whole House. After this, it was resolved to present an address to Her Majesty, that the letters written by Lord Townsend to Mr. Boyle, the Secretary of State, dated the 1st and 26th of November, 1709, might be laid before the House, which Mr. Secretary St. John accordingly did on the 14th of February." After having obtained the papers, Mr. L. said, the House of Commons proceeded to the consideration of the Treaty in Committee of the Whole, and voted, 1st. That the Treaty contained articles destructive to the trade and interest of Great Britain. 2d. That the negotiator had acted without authority. 3d. That the advisers and negotiators were enemies to the Queen and Kingdom. The Treaty being thus obstructed, the States General remonstrated to the Queen on the subject; but, conscious that the Parliament were only exercising a constitutional power, they make no complaints in their memorial of any breach of faith, though the Treaty had been ratified. They enter into the merits of the Treaty, offer to negotiate on the obnoxious articles, and conclude with "entreating the continuance of Her Majesty's friendship." This instance, then, said Mr. L., is complete to show the propriety of a call for papers by the House of Commons; a ready compliance on the part of the Crown, a deliberation on a ratified Treaty, a rejection of it, and an acquiescence on the part of the foreign nation, without remonstrance. The other instance was an address in the year 1714, requesting "the Treaties of Peace and Commerce between Her Majesty and the King of Spain, and the instructions given to Her Majesty's Ambassadors thereupon, together with the copies of the King of Spain's ratifications of the said Treaties, and the preliminaries signed by the Lord Lexington and the Marquis of Bedmar, at Madrid, and all other agreements and stipulations which had been made concerning the commerce between Great Britain and Spain. 2dly. An account of what engagements of guaranty Her Majesty had entered into by virtue of any Treaty with any foreign Prince or State, from the year 1710. And 3dly. An account of what instances had been used by Her Majesty for restoring to the Catalans their ancient privileges, and all letters relating thereto. And then it was resolved, to take into further consideration the Message that day sent from the Lords upon Thursday next following." Objections had been raised to this construction, drawn from three different sources. 1. From the prevalent construction at the time of establishing the constitution. 2. From the practice of the Government since that period. 3. From the present ideas entertained by the people of the United States. 1st. As to the construction generally received when the constitution was adopted, Mr. L. did not conceive it to be conclusive, even if admitted to be contrary to that now contended for; because he believed we were now as capable at least of determining the true meaning of that instrument, as the Conventions were; they were called in haste, they were heated by party, and many adopted it from expediency, without having fully debated the different articles. But he did not believe the general construction at that time differed from the one he had adopted. A member from Virginia (Mr. BRENT) had shown, by recurring to the debates in the Convention of that State, and to other contemporaneous productions, that the framers and friends to the constitution construed it in the manner that we do; whilst its enemies endeavored to render it odious and unpopular, by endeavoring to fix on it the contrary construction. And as the friends to the constitution were the most numerous, we ought rather to take the explanation under which a majority accepted the constitution, as the true one, than to look for it in the bugbears by which anti-Federalism endeavored to prevent its adoption. 2d. The second argument that had been used to deprive the Legislature of any right of interference, in cases of this kind, was drawn from the uniform practice of the Government ever since its formation. The gentleman from South Carolina (Mr. SMITH) who made this objection, had cited one instance of this practice in the resolution directing Treaties to be published with the laws, and had adverted to the appropriations for the Indian Treaties, (under the general head of the Military Establishment,) as favoring his principle. As to the resolution, Mr. L. said, there was no doubt that Treaties, when properly sanctioned, ought to be observed, and therefore the resolution was proper, that they ought to be promulgated. On the subject of appropriation, it had been well observed by a gentleman from Virginia (Mr. GILES) that the House exercised as much discretion in granting the supply, by way of addition to the military appropriations, as if it had been given specially for the purposes of the Treaty. But the truth is, said Mr. L., that an accurate examination into the communications of the Executive in analogous cases, and the proceedings of this House, will form a strong, I think an irresistible, argument in favor of the resolution. It would appear, he said, from the view he was about to take, that from the first establishment of the constitution until the negotiation of this Treaty was begun, the Executive had been in habits of free communication with the Legislature as to our external relations; that their authority in questions of commerce, navigation, boundary, and intercourse with the Indian tribes, had been expressly recognized, even when difficulties on these questions were to be adjusted by Treaty. The first case related to a provision for an Indian Treaty, and was suggested by the PRESIDENT, in a Message of the 7th of August, 1789, in which he says: "If it should be the judgment of Congress that it would be most expedient to terminate all differences in the Southern District, and to lay the foundation for future confidence by an amicable Treaty with the Indian tribes in that quarter, I think proper to suggest the consideration of the expediency of instituting a temporary commission for that purpose, to consist of three persons, whose authority should expire with the occasion." In consequence of this Message, Congress took into consideration the expediency of the measure recommended to them, and passed the act of the 26th of August, in the same year, appropriating twenty thousand dollars for defraying the expense of negotiating and treating with the Indian tribes, and authorizing the appointment of commissioners. The PRESIDENT having appointed commissioners to treat under the direction of the act, gave them instructions, which were communicated to the House, and from which this is an extract: "You will please to observe, that the whole sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Nothing having been effected by the commissioners, the PRESIDENT mentions the subject again in his Address to both Houses, on the 1st of January, 1792. In the month of March, in the same year, the House of Representatives adopted the following resolution, recommended by a select committee: "That provision ought to be made by law for holding a Treaty to establish peace between the United States and the Wabash, Miami, and other nations of Indians, north-west of the river Ohio; also, for regulating trade and intercourse with the Indian tribes, and the mode of extinguishing their claims to lands within the limits of the United States." On the 29th March, following, a bill passed the House of Representatives, the title of which was amended in the Senate and passed, appropriating twenty thousand dollars for purposes expressed in the preceding resolution. Mr. L. said this case was important, as it was the first communication relative to a Treaty made under the constitution. An attentive examination of its different parts would show that very different ideas were then entertained from those which were now enforced. He would first observe, that the discretion of the House of Representatives as to commerce with foreign nations, stood precisely on the same footing with that which they ought to exercise in regulating intercourse with the Indian tribes; that if one could be done without their concurrence, by Treaty, the other might also; and that, therefore, when the PRESIDENT recognized their right to deliberate in one case, he virtually did it in the other. Let us then attend to the language of the Message, said Mr. L., and we shall find that right of deliberation most expressly referred to. "If it should be the judgment of Congress that it would be most expedient"--what can be more explicit than this language? And again, "I think proper to suggest the consideration of the expediency of instituting a temporary commission." Here the same discretion is not only applied to, but the PRESIDENT, at that time supposing that no implicated power could deprive Congress of the right to regulate trade and intercourse with the Indian tribes, submitted to their consideration the expediency of appointing commissioners. They passed the necessary laws, and he instructed the commissioners, not in the language that is now held, that they might stipulate for the payment of any sum, and that Congress would be obliged to find the means; but he tells them, "the only sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Why, (if the doctrine is true that we are under an obligation to comply with the terms of every Treaty made by the PRESIDENT and Senate,) why did he say no further sum could constitutionally be expended? If that doctrine were indeed true, his language would have been, Use what money may be necessary, contract for the payment of it in your Treaty, and Congress are constitutionally obliged to carry your stipulations into effect. The resolution above quoted, Mr. L. said, was important, as it proved that Congress then supposed that they ought not only to provide by law for holding a Treaty with the Indians, but that they also had the power, and ought to exercise it, of regulating trade and intercourse with the same people, and of prescribing the mode of extinguishing their claims to lands within the United States; but all this, said he, it is now discovered may be done without their aid, by Treaty. The second instance of the exercise of this dreaded discretion, was in the law of March 3d, 1791, appropriating twenty thousand dollars to enable the PRESIDENT to effect a negotiation of the Treaty with Morocco. This originated in the Senate, and is a decided proof that neither the PRESIDENT nor Senate had at that period any idea of the moral obligation that is now discovered, or they would, without the formality of a law, have at once stipulated with the new Emperor for the payment of the necessary sum, which must have been provided by the House. In a third case, the PRESIDENT had thought proper to take the sense of that House in a matter that of all others demanded secrecy, and under circumstances that would have prevented his making the application, if he had conceived himself at liberty to act without their concurrence. He adverted to the Message of 30th December, 1790, where the PRESIDENT says: "I lay before you a Report of the Secretary of State, on the subject of the citizens of the United States in captivity at Algiers, that you may provide in their behalf what to you shall seem expedient." No act having been passed by Congress in consequence of this Message, the PRESIDENT did not conceive himself authorized to bind the United States by Treaty, for the necessary ransom of their citizens; and therefore nothing was concluded until after a subsequent Message and previous appropriation, in the year 1793, when another Message was sent relative to the negotiations with Morocco and Algiers, then pending: "While it is proper (he says) that our citizens should know that subjects which so much concern their interests and their feelings, have duly engaged the attention of their Legislature and Executive, it would still be improper that some part of this communication should be made known." Part of this Message, therefore, was confidentially communicated, which shows, Mr. L. said, on some occasions, it was not deemed imprudent to trust this House with the secrets of the Cabinet; and in consequence of this Message, a law was passed, appropriating one hundred thousand dollars for the purchase of a peace with the Algerines. It was ostensibly appropriated to a more general purpose, but the intent was well understood. The next transaction that he should quote, Mr. L. said, as favorable to his doctrine, was the Message of the PRESIDENT of the 5th December, 1793, and the measure to which it gave rise. The PRESIDENT says: "As the present situation of the several nations of Europe, and especially those with which the United States have important relations, cannot but render the state of things between them and us matter of interesting inquiry to the Legislature, and may, indeed, give rise to deliberations to which they alone are competent, I have thought it my duty to communicate to them certain correspondence which has taken place." This Message, Mr. L. said, accompanied the papers relative to France, to Great Britain, and to Spain; and a question would immediately occur, what were the deliberations to which the PRESIDENT then thought the Legislature alone was competent, and which he therefore thought it his duty to communicate. All our disputes with the nations referred to in the Message, were such as on the new construction of the Treaty power he could have adjusted by compact, without any reference to the House of Representatives; but it is plain, by the express words of the Message, that he did not believe that construction. It was no answer, Mr. L. said, to the argument drawn from this transaction, to say that the PRESIDENT only submitted the question of War or Peace to the Legislature by this Message. 1. Because the Message related to the three principal nations in Europe, and he never could have imagined that Congress would have deliberated on going to war with them all. 2. This was evidently not his intention, because as soon as measures were proposed in that House, which he supposed would lead to a rupture with one of those nations, all these measures were palsied by the appointment of an Envoy, and the commencement of negotiation. It was clear, then, that the PRESIDENT thought the matters communicated by his Message, which related to commerce and boundary, were constitutionally vested in the discretion of Congress. The idea was corroborated by the words of a Message relative to the negotiation with Spain: "And, therefore, by and with the advice and consent of the Senate, I appointed Commissioners Plenipotentiary for negotiating and concluding a Treaty with that country, on the several subjects of boundary, navigation, and commerce, and gave them the instructions now communicated." Why, said Mr. L., communicate the instructions to the Ministers? Because they related to commerce, to navigation, to boundary, on all which subjects the PRESIDENT must have thought the Legislature had a right of decision. He must have thought so at that period; but, unfortunately, all precedent of free communication ended here; Mr. Jay's negotiation began, and a different construction was assumed. From this view of the acts of Government, Mr. L. said, he trusted that a far different impression would be made, than that the doctrine he contended for was a new one, originating in opposition to the English Treaty, and a desire to disorganize the Government. That, on the contrary, it had been declared by the PRESIDENT, acquiesced in by the Senate, and acted upon by the House of Representatives. MARCH 21.--In Committee of the Whole on Mr. LIVINGSTON's resolution: Mr. WILLIAMS observed much had been said upon the subject of the present resolution, and so much time consumed, that he should confine his observations within a narrower compass than he at first intended. It was contended that in a Republican Government there ought to be no secrets; but he would ask whether it was not specified in the constitution that secrecy should be observed on particular occasions? and, had not his colleague (Mr. LIVINGSTON) quoted the secret Journals of the House? He believed if the constitution of France were examined, it would be found that their system admitted of secrets. He had the honor, he said, to be upon a committee, before whom many papers were laid, which it would be improper to publish. With respect to the present papers, he did not think there were any secrets in them. He believed he had seen them all. For the space of ten weeks any member of that House might have seen them. It was not merely with respect to the present papers that he opposed the motion, but because it would be establishing a bad precedent; and, as they were a young Government, they ought to be cautious how they established bad precedents. It was well known that in the negotiations in time of war, confidential communications were necessary; but if no papers were allowed to be kept secret, what person would ever venture to make any such communication? Hence this country, when in the greatest danger, may be much injured by improper precedents. He quoted authorities to prove that there never was but one precedent in Great Britain of a negotiator's papers being given up; that was in the last year of the reign of Queen Anne when the Ministry were soon afterwards obliged to fly their country. He was sorry that a gentleman returned by the Republican interest of one of the first cities of the Union should have had recourse to a desperate Tory faction for a precedent. Some gentlemen had observed that the papers ought to be obtained, because the PRESIDENT had intimated, in his Speech, that he would lay the papers before the House with the Treaty; but they were mistaken in their observations, because the papers had not been laid before us. A gentleman from Pennsylvania said, because the King of England laid the papers relative to a negotiation before Parliament along with the Treaty to which they related, they had also a right to papers, the Governments being similar; but when the King did this, he informed them that he had concluded such a Treaty; and after a thing was concluded, he did not know what could remain for Parliament to do. He would refer to a recent authority, and not go back to 1714; it was to the case of the Treaty with Great Britain respecting American loyalists, when papers were refused to be given up, and it was deemed a most inconsistent thing to require them. This business caused great debates in Parliament, and the motion for papers was lost, there being only sixty-three for it, and one hundred and four against it. Mr. W. read the observations of different members of Parliament on the occasion, and observed, that although he was unwilling to quote precedents from a Government not similar to ours, yet this was a case in point, and this Treaty was negotiated between Mr. JAY, on the part of the United States, and Mr. OSWALD, on the part of Great Britain. The resolution before them called for all papers, whether public or private, except such as related to any existing negotiation; but as the Treaty was completed, the resolution included all papers. He should have had less objection to the motion, if the amendment proposed by the gentleman from Virginia had been adopted. He did not see the use the papers would be of if they were got. The House was not vested with either the power to alter or amend the Treaty. But, say gentlemen, they are wanted for information. But he believed they ought to form their judgments of the Treaty from the instrument itself. Suppose I were to employ an agent, and give him instructions to make a contract for me, on condition that it should not be binding until I had approved it; and my agent return and I approve of the contract, what light can be thrown upon it by the instructions which were given to the agent? The instrument alone was what must be had recourse to; because he had it in his power to have withheld his sanction. If his information was right, when certain resolutions were brought forward in the year 1793, a gentleman from Virginia said that Great Britain would refuse to negotiate with this country; but immediately upon the Treaty being made known, it was every thing that was bad. He would endeavor to answer some observations which had fallen from a gentleman from Virginia, (Mr. GILES.) It was asked if the Treaty power could receive any check? He conceived the will of the people ought to be obeyed. They had given power to the PRESIDENT and Senate to make Treaties, which if not complied with, would be to oppose their will. In speaking of the amendments proposed to the constitution by the Legislature of Virginia, it was said they were only intended to make the check more certain than at present; but he read the resolution, viz: "That no Treaty containing any stipulations upon the subject of the powers vested in Congress by the eighth section of the first article, shall become the supreme law of the land, until it shall have been approved in those particulars by a majority in the House of Representatives. That the PRESIDENT, before he shall ratify any Treaty, shall submit the same to the House of Representatives; and insisted that it might be clearly deduced from them, that they did not conceive the Treaty power to have any check in that House. That State had kept uniformly the same ground in all their actions; but the different State Legislatures to which their amendments had been proposed, had determined the Treaty power rightly placed where it is at present. But because the people will not agree that they should have a check upon the Treaty power, gentlemen seem disposed to usurp it by their present doctrines." The same gentleman (Mr. GILES) observed, that the checks in the Government of the United States had been completely routed for these six years. He was exceedingly sorry that the PRESIDENT could bind that House, but he said that was a sword that cut two ways. It was too late in the day to assert this doctrine, when the people were become so enlightened as to be better acquainted with the nature of Government, and better educated, than the people of any other nation in the world. They would, therefore, take care of themselves. He said that a gentleman from South Carolina had observed that the Treaty was put into operation by the Proclamation of the PRESIDENT, and made a part of the laws of the land. An honorable gentleman from Virginia (Mr. GILES) granted that, when completed, the Treaty ought to be annexed to the laws. Mr. W. asked, was this not done? It had been promulgated in the way in which Treaties are directed to be promulgated; and he would ask, if a case were to come before the Judges upon it, whether they would not be bound to consider it as the law of the land? If the member from Virginia (Mr. GILES) had been opposed to the Treaty going into operation, why did he not take the proper mode to prevent it? He knew of the resolution which directed how Treaties are to be promulgated and annexed to our code of laws, he knew the Treaty had arrived, and he might have had the subject discussed. If a majority were for preventing the Treaty from being promulgated in the ordinary way, then the resolution might have been done away, and some other mode adopted which was thought most prudent. The same gentleman next contended that law can annul Treaties. But he believed that the constitution decided that there was no other way of repealing Treaties but by mutual agreement of the parties, or by war. To break one article of a Treaty was to break the whole, and war, or a new Treaty must be the consequence. The reason he gave why laws could repeal Treaties, was, because laws were the will of the people. Treaties, Mr. W. said, were as much the will of the people as laws. The people had fixed barriers to the different branches of the constitution, which could not be overleaped without endangering the whole fabric. In speaking of power, gentlemen say it is more likely to be abused in the Executive than in that House. But, in the year 1789, when amendments were first proposed to the States, a gentleman from Virginia (Mr. MADISON) asserted "that it was less necessary to guard against abuse in the Executive Department than any other, because it was not the stronger branch of the system, but the weaker; it therefore must be levelled against the Legislative, for it is the most powerful, and the most likely to be abused, because it is under the least control;" and Mr. W. quoted several laws which had originated in that House, by which very large sums of money had been expended to little purpose, which he would explain when they were in a Committee of the Whole on the report from the Committee of Ways and Means. But gentlemen say, "Have we not as much power as the House of Commons in Great Britain?" He answered, their powers were limited; the constitution was their guide. He thought gentlemen proceeded as if they were about to form a constitution rather than discuss a constitutional question. Some gentlemen had said, Treaties of Amity ought to be vested in the PRESIDENT and Senate; others, that Treaties for a cessation of arms ought to be vested in the Executive; thus they wander, well knowing the ground they had taken was not tenable. It brought to his mind an observation made by an Indian Chief, in a Treaty at Albany, since the late war, who, after thanking the Great Spirit for directing them back in the good old path, which made them happy, lamented, that ever since they had wandered from that path, they had been miserable. So it would be with them if they left the constitution; they would wander from the right path, and involve themselves in difficulties. Appropriations for the army and navy in Great Britain must be made annually, without which they must be discharged. By our constitution we may appropriate for two years for the army, and no mention as to what time for the navy; so that we can make appropriations for a longer time for our army and navy than in Great Britain. The gentleman (Mr. GILES) further observed, that the opinions entertained in that House three years ago, were not to influence them now; it was necessary however, in Mr. W.'s opinion, that whenever nations changed their customs, some notice ought to be given of the change, that it might be known by nations with whom they may have any transactions. To prove this, he quoted _Marten's_ Law of Nations. The Treaty had been laid before them, that they might appropriate money for carrying it into effect. On the first of June, the British were to give up the Western posts; if money was not appropriated, would they not be deceived? Before he proceeded to remark on what had fallen from his colleague (Mr. LIVINGSTON) he would mention, that they had, for some years, in general concurred in their political opinions, and during the present session they had varied very little; in the question before the House, however, they should differ very considerably. Soon after the constitution was framed, a Convention was held in the State of New York, in which he had the honor to be a member. He was fully of opinion at that time, as he was now, that the Treaty power was a dangerous power, and, in consequence, gave his dissent to it. He would proceed to remark on what had fallen from his colleague. He had said, how could they determine whether the Treaty was constitutional or not, or whether an impeachment was necessary, without information? The papers, as he had said before, were open for ten weeks, during which time gentlemen might have had access to them. But that gentleman said, they had denied him of late, and so they had been to him; but he understood they were at the Secretary of State's office, and might be seen there. He mentioned a case of a Treaty with a foreign country, in which their Minister might have received presents; but declared, that he did not believe there was any corruption in the negotiation of the Treaty in question. It appeared to him, therefore, inconsistent still to talk of impeachment. Suppose, for instance, his colleague was Attorney General of the State of New York, and a man were to charge another with being guilty of burglary, whose character, reputation, and standing in life were irreproachable, would he subpoena him to meet the charge? No, he would not. And still the case is exactly similar to the present. If, said Mr. W., his colleague or any member of the House wanted the papers, they had only to rise in their place and declare there were grounds of suspicion for an impeachment; would any member refuse the call? But he presumed no such thing was thought of. Why, then, expend so much precious time unnecessarily? The gentleman believed that the Minister had deviated from the instructions originally given him; but that he received new instructions. Whatever instructions were given to him, it appears, by the Treaty being ratified, that he executed them to the satisfaction of his employer. It may be, said Mr. W., that this House may determine that it has a check on the Treaty-making power; but the next Congress may say there is no such thing. Whether there is, or there is not this check, it is necessary for the stability of the Government to have it determined; and he would join in sentiment with the gentleman from Maryland in a wish that it might be settled. But he would have the amendment constitutionally made; for, if we ourselves do not understand the constitution, it is not likely that our constituents at large should understand it. If I am wrong now in the true meaning of the constitution, I have been wrong since its adoption. The people are the sovereign; their will shall be my guide, from which I will not, knowingly, depart. I live in the midst of a body of plain but intelligent freemen, whose employment is the cultivation of the earth, and who prize nothing beyond the freedom they enjoy. They are jealous of their liberties, but they are obedient to, and willing to respect and support the laws of the land. How will they know the laws, if we do not understand the constitution after it has been in operation for nearly eight years? Gentlemen observed, that if the Treaty-making power was meant to be vested solely in the PRESIDENT and Senate, it would have been said so explicitly; but, he thought, if the constitution had intended that House to have interfered in Treaties, that would have been expressed, as a few words would have done it. His colleague asserted, that that House had the power of carrying into effect or not any Treaty; but he thought the House obliged to carry into effect all Treaties constitutionally and completely made. To support his doctrine, Mr. LIVINGSTON had referred to the practice of Great Britain, and singled out the Treaty of Utrecht. In England, said Mr. W., the Treaty-making power is in the King. A Treaty, when made by him, pledges the public faith and binds the nation; but the Courts of Law and the officers of the revenue do not consider Treaties as the supreme law (when they change the regulations of commerce or interfere with previous acts of Parliament) until Parliament has passed acts conformably to such stipulations of a Treaty. The propriety, and, indeed, necessity of this rule, results from the monarchical form of that Government, the power of the King alone to repeal existing laws being a just ground of apprehension. From a like apprehension, a Treaty, though negotiated and made in all its parts by the PRESIDENT, must be submitted to the Senate for their ratification. The Senate is a popular assembly, and representing the States. The concurrence of two-thirds is equal on every principle of combining the public will with the acts of the constituted authorities to the sanction of Parliament. In England, Treaties of Peace, of Alliance, and, perhaps, many others, are perfect and binding without co-operation of Parliament. The opinion of some is understood to be, and _Blackstone_ seems to be of the number, that every Treaty, when made by the King, is obligatory without the concurrence of Parliament. The practice, however, is to lay Treaties before Parliament when laws are necessary to carry them into effect, and for Parliament to pass such laws. And, although a very broad discretion has been claimed in Parliament to pass or reject such laws, the uniform practice, except in one instance, has been to pass them. The faith of the nation is considered as pledged. The case where laws to carry the Treaty into effect have been refused, is the Treaty of Utrecht, in 1714. The credit of the example is much abated by the circumstances of the times when it happened. The Duke of Marlborough had been displaced, but his friends were powerful; a Tory Minister was in power and much hated; Queen Anne was decaying, and died that year, and the succession to the Crown was doubtful. Parties were ready to draw the sword against each other, and the most distinguished Ministers were soon proscribed and fled the country. A civil war broke out in 1715, the next year. One only example in such times, and the forerunner and cause of such events, weighs little against the course of practice in numberless cases, all issuing another way. It proves that the practice of Parliament corresponds with our doctrine. If, however, their maxims are different, so is their constitution in this particular. The act of the King should be compared with the act of the PRESIDENT alone; and the ratification of the Senate should be, and, by our constitution, it must be, considered equal to the sanction of Parliament. The doctrine ascribed by Mr. GALLATIN to the Parliament affords a reason for their calling for papers; because, he says, they are to act upon them. Yet such call is seldom made, and would probably be refused, if made without manifest occasion for the papers. Our constitution has settled a different doctrine; and, as the papers cannot be needed, they cannot properly be asked for. He doubted not that the Treaty lately concluded with Great Britain had ere now been laid before Parliament, and a sum of money granted for recompensing spoliations committed in this country. Should they then attempt to refuse appropriations for carrying the Treaty into effect, on their part, where would be their national honor, their national faith? Suppose the Treaty were a bad bargain, that would not authorize them to break it. No: if a bad bargain be made to-day, make a better to-morrow. Neither should they determine the thing before it came before them. Probably they may not find it so bad as it had been represented; for though it might, in some respects, narrow our commercial intercourse, yet, perhaps, by so doing, the agricultural interest would be proportionally benefited. He was convinced that the agricultural interest was the true interest of this country. If by the Treaty we find that it tends to the welfare of the farmer, we may conclude our negotiator had the true interest of his country in view; and it was his (Mr. W.'s) opinion that a man taken from the plough and put on board a vessel was a man lost to the true interest of this country. This country is not like that of Great Britain: they are confined to small islands; we have a country extensive and fertile, and it is our duty to encourage settlers, increase our numbers, and, by so doing, we shall soon be in a situation to bid defiance to all the world. He was willing to encourage commerce to its full proportion, but not so as to injure the agricultural interest. The third article in the Treaty had been quoted by a gentleman from Maryland (Mr. S. SMITH) as having a tendency to operate unequally in our impost duties; Mr. W. observed he did not think that was very exceptionable, so far as it had been explained. He did not think the third clause of the Treaty a bad one: it only went to this, that when Great Britain carried goods through our country they were to pay the same duty as American citizens. And would not this be a greater advantage to the United States than if they went up the rivers St. Lawrence or Mississippi, and paid no duty? All the duty received of them would be so much gain to the country. His colleague (Mr. LIVINGSTON) went on too contemporaneous a construction, and said that the House were better able to judge of the meaning of the constitution than the conventions which were held to consider upon its adoption. He did not think so. He said, he had always been called an anti-Federalist, and was so considered to this day. He would willingly join to obtain an amendment to the constitution with respect to the Treaty power; but, because he did not believe the constitution contemplated an interference in that House in respect to Treaties, he could not agree to the proposed doctrine. Mr. W. said, it was not necessary for him to go into the argument which induced the convention to fix the Treaty-making power: it need only be mentioned that they knew how and where that power was exercised in Great Britain; and, in order to avert the difficulties which had arisen there, the convention vested the power with the PRESIDENT and Senate; and, to guard against undue influence, directed that two-thirds of the Senators present should concur with the PRESIDENT. The convention had many difficulties to surmount in this article; they had to do away the equal power the small States shared, under the Confederation, with the large States. But, to do away the discordant interests of the different States and to give the small States satisfaction, agreed that all the States should be equally represented in the Senate. In the Treaty-making power each State hath an equal voice. To extend it further, for another check, without the consent of the smaller States, would be doing away, in part, that power which the small States had retained. He read the observations of one of the Judges of the Supreme Court of the State of New York, when debating on the merits of the constitution in the convention held in that State, to prove that Treaties were considered to be paramount to any law. Among the several passages from the debates of the Convention of New York, Mr. W. read the following proposed amendment of Mr. Lansing, who was a member of the convention that formed the constitution of the United States, whose abilities and candor were not doubted by any who knew him: "_Resolved_, As the opinion of this committee, that no Treaty ought to operate so as to alter the constitution of any State; nor ought any commercial Treaty to operate so as to abrogate any law of the United States." He believed that the amendments proposed in the Virginia Convention arose from their considering that there was no check in that House: the contrary supposition, he said, would be like rowing a boat one way and looking another. His colleagues read extracts from the journals to prove that the PRESIDENT had laid before that House instructions which he had given his Ministers employed on the Treaty business. He believed, when much money was likely to be wanted, it was prudent and right to do so. It was as if he asked that House whether it would agree to a proposed negotiation or declare war--as if he had said, "I cannot unlock your Treasury; which way would you have me act?" It was inconsistent to say that he had diminished his power by asking advice. Books, he said, might be produced without number; but nothing could be brought to justify the breaking of a contract constitutionally made. It has become the law of the land. The House has, indeed, the physical power to refuse to appropriate to carry such a Treaty into effect; but the constitution meant that what was done by one branch of the Legislature should be confirmed by the others, except the act was unconstitutional. If a Treaty was constitutional, they were therefore impliedly bound to carry it into effect. His colleague denied that any danger lay in the popular part of the Government; he thought differently. To say there was more danger to be apprehended from the Executive than the Legislative branch of Government was unsound doctrine. He should enlarge on this subject when the Treaty came before the House, and he trusted he should clearly show that the greatest danger of abuse lay in that House. Have there not bills originated in this House which have caused the expenditure of much money to very little purpose? Is there not more responsibility in one man than in large bodies? and was not the member from Virginia (Mr. MADISON) of this opinion, as I have before stated? Where have (said Mr. W.) the acts originated that have cost so much money to be expended, by reason of which the report of the Committee of Ways and Means states the necessity of borrowing such large sums to meet the necessary demands--the laying additional taxes and duties? Did these acts originate with the Executive? No. Where then? In this House. All money-bills must originate in this House, being so directed by the constitution. Though his colleague represented Great Britain as being in chains, yet he was drawing precedents from their Government. At first, he thought he had fallen in love with the Government, but he afterwards found his mistake. In that Government, said Mr. W., one precedent creates another, and they soon accumulate and form laws; but his friend was drawing precedents from that nation to support the checks, which, Mr. GILES said, had been for six years completely routed from the Government of the United States. He feared, if the gentlemen were permitted to take their course, we should soon have a curious sort of constitution. But, to conclude, the ruin or prosperity of the nation depended much on the present Government. He said, if the people flourish and are happy; if they are industrious and at peace, they will not complain of their Government. If this be the case, it will scarcely be admitted that the checks in the Government have been completely routed for these six years; if they were, however, he thought the nation could not be better than happy. Mr. MILLEDGE observed, that as the hour of adjournment was drawing near, he would not detain the committee long. The length of the debates, on both sides of the question, had left him little room for observation; but as a constitutional question had been involved in the resolution before the committee, and as all constitutional questions were important in their nature, he could not think of giving a silent vote. He perfectly agreed with the gentleman who had spoken last, from the State of Connecticut, that we ought not to put our foot from off the constitution, and on that, he said, he would stand. Nor did he think it necessary to resort to this or that Government to know their usages, or to know what was said in this or that State, or what was written by this or that man--but, according to the common and most obvious meaning of words contained in the constitution, to draw our conclusion. That part of the constitution which had been often mentioned, he begged that he might be permitted to read--that all Treaties made by the authority of the United States should be the supreme law of the land. He asked, what was the authority of the United States? Powers derived from the constitution. What are these powers? Legislative, Executive, and Judicial. The better to understand these, let us see, said he, in what order they present themselves to us. In the constitution we find that in the very first section all Legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. This, then, is the Legislative power, the statute making power, the ordaining power, the enacting power, or any other name by which it may be called. Now, then, said he, let us see the extent of this power. In the 8th section, Congress shall have power to make _all_ laws. It would be necessary, he said, to attend to the monosyllable _all_. If the PRESIDENT and two-thirds of the Senate have a right to make a law, do Congress make all laws? Certainly not. The constitution being his guide, he felt supported by a just confidence in his opinion; but he would not say but he might be mistaken, and was unwilling to commit himself. It was his opinion, then, that Treaties ought to be bottomed on a law before they can have any binding influence. To elucidate this, he said, it would be necessary to read the whole of the clause: Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, (which are, he said, seventeen in number, particularly expressed,) and _all_ other powers vested by this constitution in the Government of the United States, or in any _department_ or officer thereof. Here, again, he observed, we find the monosyllable _all_. What does it import? Every one--the whole. Of what? Of all other powers vested by this constitution in the Government of the United States, or in any _department_ or officer thereof. What is the PRESIDENT and two-thirds of the Senate? The Treaty-making _department_. Therefore, being a _department_, whatever powers are vested in them by the constitution cannot be carried into execution but by a law, otherwise the clause in the constitution means nothing. What is a law? The will of the people made known. Where is that will to be found? In the Senate and House of Representatives of the United States in Congress assembled. Are the PRESIDENT and two-thirds of the Senate Congress? No; therefore they cannot make a law. The gentleman from New Hampshire asked, what do the PRESIDENT and two-thirds of the Senate operate upon? I answer, with him, on Treaties; but in their nature they are only a department, and whatever a department does cannot, he repeated, be carried into execution but by a law. The Treaty-making power is an intermediate department, and no instrument they can make can operate the repeal of a law, the same force being required for a repeal as to enact. The gentleman from Rhode Island observed, that if the House of Representatives was to have a control over Treaties, small States might be injured in their commerce, because the representation on that floor was unequal. Mr. M. observed, that though his State was not a small State, yet it was small in representation, but he apprehended no danger. Under the Articles of Confederation, it was a Government of States; under the present Government, it was a Government of departments, of checks. He said, the local interest of one State was so blended with another that the security of the one became the security of the whole, founded on a proportion of sovereignty surrendered by each to the whole, and each drawing from the whole its proportion of security. Let us then, said he, examine the compact made by each with the whole on the score of commerce. Here he read part of the 9th section: No tax or duty shall be laid on articles exported from any State; no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another. He said, the negotiators of the Treaty, in the 12th article, had laid a prohibition on the exportation of cotton to any part of the world, except in British vessels--cotton, the growth of our own soil, an important staple in the two Southern States, particularly in the one he had the honor to represent. But it is said, and so we find it, that this article is suspended, and open to further negotiation. He called on the committee for any member to deny that the principle did not still exist. He said, then, if a principle still exists in that Treaty which militates with a fundamental principle, a principle in the constitution, he left to the committee, which ought to yield. Were this principle to prevail, it would destroy a vital part of the constitution, and injure the agriculture of the States. He called on that gentleman to beware of admitting such a principle; for, if once allowed, it would extend not only to the cotton of Georgia, but to the flaxseed of Rhode Island, the flour of Pennsylvania, and the tobacco of Virginia. Mr. M. concluded by observing, that, from all he had said, it was to be understood that the powers of legislation were only with Congress, and that the House of Representatives could not, on the subject before them, legislate without information. Before he sat down, he could not help observing that it was somewhat strange that the first Treaty negotiated under the present Government with a European nation, should produce such a contrariety of sentiment on the meaning of the constitution, and that he was reminded by this circumstance of the pertinent words of a celebrated writer: "The works of human invention are progressive, and are not completed but by degrees. At the last improvement we are apt to sit down satisfied, and vainly imagine that we have accomplished the end we have proposed, but time soon unravels the fine-spun system, and we find ourselves obliged to interweave fresh materials to repair the disordered texture." Mr. KITCHELL observed, that he could not think of giving a silent vote on so important a question as this had become; but he should not go into an argumentative discussion on the subject, nor should he inquire into the opinions held in different conventions at the adoption of the constitution, or refer to Great Britain for precedents. He would look at the constitution alone, and see what were the powers given to the different branches of Government. When it says that such and such powers are vested in Congress, and such in the Executive, he would abide by that decision. Where that instrument says Congress shall lay and collect taxes, regulate commerce with foreign nations, establish a uniform rule of naturalization, provide for the common defence, &c., and that the Executive shall have power, by and with the consent of two-thirds of the Senate, to make Treaties, appoint Ambassadors, &c., the directions of the constitution must be abided by. He would inquire what Treaties could be entered into by the PRESIDENT and Senate, without infringing upon the powers placed in Congress? He believed Treaties of Peace, of Amity, and Friendship, could be made by them. If this could be done, he said, those were the powers meant to be vested in the PRESIDENT and Senate, and not that Treaties should embrace objects which are expressly appointed to the management of Congress. In this view, the PRESIDENT and Senate would not have the power to influence that House in their proceedings; but commercial or other Treaties which embraced objects the regulation of which was placed in Congress, must be laid before them for the purpose of their passing or refusing to pass laws to carry them into effect, in the same way as Treaties with the Indians had been laid before them. He did not think the question of itself before the House important, as it related to the production of papers, but only as it involved in it an important principle, viz: that when Treaties were made by the PRESIDENT and Senate, and presented to that House, they had nothing to do but appropriate money to carry them into effect. It was true gentlemen had seemed willing to allow them what they called discretion; but it was such a sort of discretion as a criminal might be said to have, who was told he might choose this or that posture of suffering, but that he must die. It had been said that the PRESIDENT and Senate were equally the Representatives of the people with that House. He would inquire how they became so? The constitution has appointed that Representatives shall be chosen by the people in proportion to their population. Were the Senate so chosen? No. The people have no vote at all in choosing them. Are they amenable to the people for their conduct? No. Therefore, in no shape can they be called the Representatives of the people. The Senate, he said, represented the several State Legislatures, and that House the people at large. He was sure, therefore, that every thing in which the interests of the people at large were concerned should be submitted to their consideration, before it was carried into effect. A great deal, he observed, had been said upon this subject, some things well said, and a good deal that might have been as well unsaid, for any good effect it was likely to produce. He was sorry to hear what had fallen from a gentleman from Rhode Island with respect to the interests of small States. He said he was himself a Representative of a small State, and he believed his constituents were well satisfied with the present distribution of power, and did not wish that of the PRESIDENT or Senate to be increased. He did not think what fell from his colleague, when he said gentlemen wished to amuse the people with the cry of liberty, liberty, and spoke of the groans of three or four hundred thousand slaves assailing his ears, was meant as a reflection upon any gentleman in that House who might hold slaves; but an earnest wish that the people at large might never bend their necks to slavery. He did not think the subject of the Treaty at all before the House. He should give his vote for the papers; not so much on account of their being of great importance in themselves, but in order to repel the doctrine, that they had no right to discuss the merits of any Treaty whatever. MARCH 22.--In Committee of the Whole on Mr. LIVINGSTON's resolution: Mr. COIT said, the attention of the committee was doubtless fatigued with the subject before it; to those gentlemen who had already delivered their sentiments upon the occasion, he need not make any apology; and to those who had not done so, he would assure them that he would not occupy much of their time. Most of the gentlemen who had gone before him, he observed, had regretted that the debate had taken the turn it had, but he was happy it had taken such a turn. It appeared to him, that the motion was intended as a stepping-stone to a violation of the rights of the other branches of the Government by that House. It became him when he made a declaration of this kind to say, that he did not impute other than pure motives to any member of that House. He believed the general wish was to discover the true sense of the constitution; yet it was not extraordinary if in doing this men were actuated by the sentiments which they had long been in the habit of considering as well-founded, to lean to that construction which most favored their favorite opinions. He had no idea that any gentleman meant to make inroads on the constitution; but it was his opinion that if the doctrines now insisted upon prevailed, they would have that effect. He was happy, for two reasons, that the true ground of the present motion was made to appear. Because, if the resolution had passed without discussion, the motives which led to it would not have been seen; and because he wished the question of what were the powers of that House, with respect to Treaty-making, to be discussed, independent of the Treaty, which was likely soon to come before them. They stood now on the pure ground of an abstract constitutional question. Some obscurity, Mr. C. thought, had arisen from not distinguishing the application of arguments to the different principles on which the resolution had been advocated, which he should endeavor to avoid. He considered the Treaty-making power as absolutely vested in the PRESIDENT and Senate; still, that when Legislative acts were necessary to carry a Treaty into effect, the Legislature were not without discretion in the passing of them; if the Legislature had a hand in making Treaties, there could be no question of the propriety of calling for papers; he should then, in the first place, examine the propriety of calling for papers, taking for granted that the Legislature had no hand in making Treaties. If they were to consider the power by which a Treaty was made, there would be found two nations concerned, whose consent would be also necessary to repeal it. But were there no other ways of cancelling a Treaty? There were certainly ways of breaking a Treaty. There were circumstances in which the breaking of a Treaty would be justifiable. For instance, if, before a Treaty was carried into effect, there was such a change of circumstances as to make it necessary to declare war; could they not discuss the subject, whether it were more advisable to carry into effect the Treaty, and keep at peace, or break it and declare war? If a question of this kind came up, there could be no impropriety in looking into it; not with an idea of having any concern in making the Treaty, but because such alterations had taken place in the state of affairs, as to make it necessary to discuss the propriety of going to war. There was another point of view in which that House had a check on Treaties. Granting that a Treaty is completely made, the subject of appropriation must come before them. Gentlemen had been understood to say, that no discretion could be exercised in appropriating the necessary money for carrying a Treaty into effect. But he was of a different opinion; he believed, that though they had nothing to do with the making of Treaties, yet when they were called upon to appropriate, they must exercise their discretion. It was true, that in general when Treaties were made, it would be the duty of that House to carry them into effect, in the same way as they found it their duty to carry into effect existing laws; but he said, there were justifiable grounds of refusing to appropriate money to carry into effect both laws and Treaties. Mr. C. referred to the case of appropriations for the army. Suppose, said he, an army was raised for four years; at the end of two years a fresh appropriation is requisite to support it; but the Legislature has a discretion in doing this, or where was the use of the constitutional regulation of confining appropriations to two years? He considered, that there was some analogy between such cases of appropriation, and those requisite for Treaties. When a Treaty is made, the nation is bound by it, and its organ has an obligation upon it to carry it into effect. It might, in general, be said that there was an absolute obligation; but still there were particular cases in which that obligation did not hold. It appeared to him that a Treaty might possibly be of so ruinous a nature, as to justify the refusing to carry it into effect. Nay, he would say, that if half the lies and calumnies which had been spread throughout the Union with respect to the late Treaty with Great Britain were true; if the negotiator had been bribed; if he had given up the rights of his country; if their liberty and independence had been sacrificed; if the PRESIDENT and Senate had been bribed by British gold; if he had any idea of that kind, he would not agree to carry the Treaty into effect; nor should he conceive the national faith bound by such an instrument; no matter what grounds were taken to justify the refusal, whether constitutional or revolutionary. If these principles were just, he said, it would be allowed that that House had a discretionary power with respect to appropriating to carry a Treaty into effect, though it had nothing to do with making it. No cause, he said, had been shown for calling for papers. Why, then, call for them? Gentlemen talked about impeachment? They might impeach without papers. But did they want to bring forward an impeachment? No such thing; it was only to cover the real drift of the motion that this was mentioned. Did any gentleman think there was sufficient evil in the late Treaty with Great Britain to authorize them in refusing to carry it into effect? It appeared to him, that that House had a right to call for any papers which might throw light on their deliberations. But they must also consider, that there was a discretion to be used by the Executive in giving up papers in his hands. When there are papers in his hands which that House had real occasion for, it was important that they should be brought forward; but, he said, as long as a proper confidence subsisted between the two branches of the Government, if that House asked for papers which the PRESIDENT thought it improper to send them, he would decline doing it. But it is not contended, that the papers which are the object of the present resolution will be of any real use to the House. The gentleman who brought forward the motion had read them through, and the most that he said on the subject was, that the negotiator had not complied with some of the first instructions which were given to him. Another ground of calling for the papers, which was to him a pleasing ground, was that of publicity; for he fully agreed with the gentleman from Georgia, that the more public Governmental proceedings could with propriety be made, the better; but that House had not the right to direct the PRESIDENT on that head; they ought rather to leave it to him to publish the papers, or not, as he pleased; for, if they considered the PRESIDENT as attentive at all times to the duties of his office, it would be arrogancy in that House to attempt to influence him in that particular. But the main point in dispute was the force and effect of the Treaty-making power. What were the powers and privileges of the House on the subject? In pursuing this inquiry, he was pleased with the remark of the gentleman from Georgia, that in examining into the meaning of the words and phrases, they must take the meaning that was generally given to them, and if they could find out the true import of the phrase _make_ Treaties, it would remove all doubts on the subject. He hoped, for this purpose, that gentleman would have examined the proceedings of his own country; but, instead of doing this, they find him referring to the practices of Great Britain. The PRESIDENT and Senate, Mr. C. observed, were expressly authorized to make Treaties. To what should they compare Treaties? Might they not say that they were betwixt nations what bargains were betwixt individuals? And, after he had employed an agent to make a contract, with full discretion, and he had in pursuance of his authority made it, was it not binding? Though in public as well as in private contracts he acknowledged there might be circumstances which would justify a non-compliance with the terms of the bargain; yet, in case all the circumstances had been fair, the contract must be complied with. It appeared to him not unimportant to consider whether, when Treaties were made, they were not the laws of the land. A power to make, carried in his mind a power to complete. But if this were doubtful, where should they look for information? He expected the gentleman from Georgia--knowing him to be well acquainted with the proceedings of Government for a long time--would have referred them to the old Confederation. It would certainly have been more natural to have referred them to the old Congress than to the Parliament of Great Britain. If they looked into the powers of the old Congress they would find that they had the power to enter into Treaties and alliances, which he apprehended to be the same power as that placed in the PRESIDENT and Senate in the present Government; and it was natural to conclude that a Treaty made by the present power was equally binding with those made under the old government; for it will be recollected that the general power was delegated to the General Government; and if they had the same powers, he could not see that there should be any difference in the exercise of them. If it had been intended otherwise, the convention at the forming of the constitution, would have added a proviso that no Treaty should be made by the PRESIDENT and Senate which included commercial regulations. It appeared to him that a subject of such recent date as their constitution could not receive much elucidation from the opinions held concerning it in the conventions, at or about the time of passing it. He confessed he found little aid to assist his mind to form a judgment on the matter from any other source than the constitution itself; indeed he thought the light was there so clear that nothing more was wanted. There were four members, he said, in that House who were members of the convention who formed the constitution. The sentiments of two of those gentlemen he was not acquainted with; but two of them had spoken on this subject. If those gentlemen had come forward and declared that such a power as the Treaty power was contended to be was not intended to be placed in the hands of the PRESIDENT and Senate, but that that House was meant to have certain powers with respect to Treaties, he would not say but that such a declaration would have shook his faith on the subject; for, though he should still have been guided by the instrument itself, yet authority so respectable would have its weight on his mind. But what did the gentlemen who have delivered their sentiments say? The gentleman from Georgia (Mr. BALDWIN) mentioned the necessity of inquiring into the true meaning of the phrase, "make Treaties;" and, instead of telling them what had been the practice in the old government, he went over the water to Great Britain. What did they get from the gentleman from Virginia, (Mr. MADISON?) He produced five sets of doubts and one problem upon the construction of the constitution. This had the same effect on his mind as if they had declared that the meaning of the constitution was well understood, in the convention which formed it, to vest the Treaty-making power completely in the PRESIDENT and Senate. It was certainly matter of great importance where the different powers of Government were placed, and caused considerable debates in the convention. Some thought the Treaty-making power should be placed in the Legislature, but that was greatly objected to; it was urged by others that the powers should be in the PRESIDENT and a majority of the Senate; it was again proposed that two-thirds of the whole number of the Senators should consent to a Treaty--but finally passed as it is found in the constitution. He was far from accusing those gentlemen with impropriety of conduct on the occasion. If they think it would be better for the interests of the people that that House should have a share in the making of certain Treaties, and believe the constitution will bear that construction, it was not for him to impeach the purity of their motives or propriety of their conduct; but it would require strong arguments to convince his mind that the constitution placed any such power in that House, contrary to the unanimous understanding of the members of the convention who formed it. The arguments which had been urged for placing certain powers in that House with respect to Treaties were drawn from the practice of Great Britain, and from the danger of the Treaty power being vested wholly in the PRESIDENT and Senate. He did not think that the Government of Great Britain had been introduced for any other purpose than illustration, though other use had been made of it out of doors. With respect to the principles of that government, let them inquire into its sovereign power; for it was a just position that Treaties must be made by the sovereign power of a nation. Where should they find that power in Great Britain? The King and Parliament were allowed to be omnipotent. Parliament have altered the continuation of their existence from three to seven years. Where must they look in the United States for the sovereign power? They must go to the people at large; for in them it lay alone. Their constitution limited the powers of every branch of government, and it was therefore improper to apply foreign ideas to their constitution. But if a Treaty was made by the agents of a sovereign power, authorized for the purpose, the end was answered: in the United States, the sovereign power can act only by its agents. The Legislature of Great Britain, he said, it was true, consisted of three branches, and that was almost the only feature in that Government resembling that of the United States. In Great Britain, their Executive is an hereditary Monarch, whereas the PRESIDENT OF THE UNITED STATES is elected every four years. Their House of Lords consisted of bishops and an hereditary nobility--the bishops appointed by the Crown, and the nobility were increased at the King's pleasure; whilst the Senate of the United States is elected every six years. Gentlemen say the Senators are not elected by the people, but they are chosen by the Legislatures of the different States, who are elected by the people. The House of Commons in Britain, which is the only representation of the people their Government contains, is elected by a very small part of the people; and the Crown has such an influence in it as to be able to carry most questions at its pleasure. How could it then bear a comparison with that House, who were chosen by the whole people every two years? The absurdity might be admitted, in that Government, that the King had the power to make Treaties, and that the sanction of the Legislature was still necessary to give them legal validity, because the influence of the Crown was so great in both Houses as to carry any measure it pleased through them. But it would not do in this country. The comparison, therefore, betwixt the two Governments fails, and no arguments can be drawn from it. The other argument respecting the danger of the power being placed solely in the Executive arose from the comparison with Great Britain. If the powers of the PRESIDENT and Senate of this country could with any tolerable degree of justice be compared to those of the King and House of Lords in Great Britain, as little taste as he had for revolutions, he would not say but he should be induced to join gentlemen, either by fraud or force, to overturn the constitution. He looked on the representation in the Senate to be as complete as in that House. Gentlemen were very fond of calling that House the popular branch of government. He agreed that a criticism on words was in general trifling. That gentlemen from Virginia might assert this, he allowed, as they had nineteen members out of the hundred and five in that House, and in the Senate only a fifteenth part of the body; but gentlemen did not mean, when they spoke on that subject, to have reference to particular States, but to the whole. The Senators and Representatives were regularly apportioned for the whole Union; and, though on different principles, were as completely represented in the one House as in the other. Mr. C. concluded with saying, that he had no doubt the powers vested by the constitution were well vested; and if the constitution was fairly considered, little doubt could remain on the subject. But if the House passed the resolution now before the committee, he should not consider the question as decided; but if the construction was still insisted upon, he was happy the constitution was not wholly in their hands--that there were joined with them in the guardianship of it, the PRESIDENT, the Senate, and the people of the United States. Mr. HILLHOUSE said, it was with diffidence he rose to speak on a subject which had been so copiously and ably handled by gentlemen who had preceded him. It had been his intention to have given a silent vote on the resolution on the table, but the turn which the debates had taken--involving an important constitutional question, relative to the powers vested in the different branches of Government--seemed to create a necessity of expressing his sentiments, lest by his vote he might seem to subscribe to certain doctrines in the latitude in which they had been laid down. And as he should differ in some respects from most of the gentlemen that had spoken, he asked the indulgence of the committee whilst he made a few remarks on a subject which he conceived to be of vast importance, as a wrong decision might give a direction to their government which might be of serious consequence. On the one hand, he did not think that Treaties could not, under any circumstances, be the subject of Legislative consideration or discussion, and that they were not to look into them. It appeared to him, that they not only had the right, but that it was their indispensable duty to look into every Treaty, when called upon to aid in its operation; to see whether it had the constitutional forms; whether it related to objects within the province of the Treaty-making power, a power which is not unlimited. The objects upon which it can operate are understood and well defined, and if the Treaty-making power were to embrace other objects, their doings would have no more binding force than if the Legislature were to assume and exercise judicial powers under the name of legislation. It might be proper, also, to examine the merits of a Treaty, so far as to see whether it be of such a ruinous nature as, according to the law of nations, it would be null, and whether they would be justified in withholding Legislative provision to carry it into effect. He also considered Treaties as subject to Legislative control, so that their operation, so far as related to the people of the United States, might be suspended or annulled whenever, in the opinion of the Legislature, there was sufficient cause. And further, that the clause in the constitution which provides that no money shall be drawn from the Treasury, but "in consequence of appropriations made by law," as vesting in the different branches of Government a check adequate to every purpose of security. On the other hand, he did not consider the House of Representatives as having a constitutional right to interfere in making Treaties, or that a Treaty needed any concurrence of that House, or Legislative sanction, to make it the law of the land. He had always supposed that Treaties were exactly on the footing of laws in their operation on antecedent laws, suspending and repealing such as were repugnant. Treaties may sometimes require Legislative aid to carry them into effect; so may laws, and they were constantly in the habit of making laws to carry into effect laws heretofore made. After these preliminary observations, Mr. H. proceeded to inquire, not what ought to be, but what was the Constitution of the United States? We were not, he said, in Convention, but in the discharge of Legislative functions under the constitution; and to understand the extent of the powers intended to be granted in the second article, section two, by these words, "the PRESIDENT shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur," we must advert to the general definition of the Treaty-making power--what objects it may embrace, and how far it can interfere with Legislative power. A Treaty is a compact entered into by two independent nations, for mutual advantage or defence. Nothing can, therefore, come within the Treaty-making power but what has a relation to both nations, and in which they have a mutual interest. The object of this power is to secure to our citizens advantages in foreign countries which are without or beyond our Legislative jurisdiction, to enable the Treaty-making power to obtain which, it must necessarily be authorized to give some consideration or equivalent therefor. If the United States authorize an agent to make a bargain or purchase, the power of binding the United States for a reasonable consideration is necessarily given. Whenever the Treaty-making power departs from these rules, it is without its jurisdiction, and such a Treaty would be of no validity. Under this view of the subject, if we look into our code of laws, we shall find few of them that can be affected, to any great degree, by the Treaty-making power. All laws regulating our own internal police, so far as the citizens of the United States alone are concerned, are wholly beyond its reach; no foreign nation having any interest or concern in that business, every attempt to interfere would be a mere nullity, as much as if two individuals were to enter into a contract to regulate the conduct or actions of a third person, who was no party to such contract. He could, he said, illustrate his idea more readily by adverting to a law, mentioned as being affected by the present Treaty, which was the revenue law; which provides that certain duties shall be paid on goods imported into the United States, and on goods coming in foreign bottoms ten per cent. advance on the amount of such duties. This is a law no Treaty can repeal, admitting the repealing power in its fullest latitude, because no foreign nation can have any interest or concern in the duties payable by our own citizens into our own Treasury. All that a Treaty could do, would be to suspend or arrest its operation, so far as the citizens or subjects of the nations with whom we treated, were or might be affected by it. The only operation which the British Treaty has upon that law is, that in consideration of our being freely admitted to the fur trade and the trade into Canada, which opens to the enterprise of our citizens a vast source of wealth and advantage, we only give in return to the subjects of the King of Great Britain the privilege of bringing, by land or inland navigation, into the United States, goods for which they pay no more duties than our citizens pay on goods imported in American bottoms. British subjects have always been permitted to reside and trade in the United States, and peltry is to be duty free in the territories of each. According to this definition of the Treaty-making power, and as far as he could judge, he said, it was correct; it cannot have that unlimited extension which has been ascribed to it. It cannot be that monster which has been described as about to swallow up all the Legislative powers of Congress; nor can there be any danger of the PRESIDENT and Senate having it in their power, by forming Treaties with an Indian tribe or a foreign nation, to legislate over the United States. The Treaty-making power cannot affect the Legislative power of Congress but in a very small and limited degree. Because a Treaty or an Executive act may, in some instances, arrest the operation or progress of a law, it is no argument against the existence of the power. In article first, section eighth, of the constitution, a specific power is granted to Congress to provide for the punishment of the counterfeiters of the securities or coins of the United States. In another article, the PRESIDENT is authorized generally to grant reprieves or pardons for offences against the United States, excepting in cases of impeachment. Can any one seriously contend that the PRESIDENT has not the power of granting a pardon to a counterfeiter of securities or coins, because it would suspend and defeat the operation of a law, on a subject, specially delegated to Congress? If this doctrine be true, that all Legislative power may be exercised by the Treaty-making power, Congress, under the old Confederation, had unlimited Legislative power over the States. The old Confederation vested in Congress an unlimited power to make Treaties, excepting only that the States were to be at liberty to impose like duties on foreigners as on their own people, and that the exportation or importation of goods was not to be prohibited. Was it ever imagined that, by this general power, Congress had a right, by forming a Treaty with a foreign power, to legislate over the States to any extent? Suppose Congress, instead of taking so much pains to persuade the States to consent to their laying the five per cent. impost, and in obtaining which they were finally defeated by the refusal of one State, after every possible exertion, had undertaken to have it done by Treaty? Would not the measures have been reprobated with one voice, and the Treaty considered as a nullity? In the first place, in Art. I., organizing a Legislative body, and delegating to them, not all, but a part only of the Legislative power of the States, in these words: "All Legislative powers herein granted shall be vested in a Congress;" and among the specified powers, the right of regulating commerce with foreign nations. How were they to regulate commerce? Not by the exercise of the Treaty-making power. This article of the constitution has not the least relation to that kind of power: it was Legislative power only that was meant: it vested Congress with the whole power, as far as the object could be accomplished by a Legislative act; but this power would embrace but a small part of the objects which come within the term of regulating commerce with foreign nations; it could extend no further than the bounds of our own jurisdiction. There is not a single expression that looks like authorizing them to act in any other than their Legislative character. The constitution then proceeds, in the second Article, to the establishment of an Executive power, to be vested in a PRESIDENT, and in the second section, says: "The PRESIDENT shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." The most general terms are used, and such as under the old Confederation had been understood to embrace every kind of Treaty, commercial as well as others, and had been exercised in the most ample and unlimited manner, and the Treaties thus formed had been declared and adjudged to have the force and operation of a law, and that they repealed all laws that were opposed to them; and these Treaties were then in full force and operation, and were the supreme law of the land. It cannot be presumed that the framers of our constitution were ignorant of the laws of the land, or that they had not well attended to and examined Treaties, which, by the constitution, they were again about to declare to be the supreme law of the land under the new Government. Now, if it really was intended that the Treaty-making power should not be as broad, and have the same extension and operation as had been exercised under the old Confederation, or that there was to be a distinction between commercial Treaties and others, or that Treaties generally should not so operate as to repeal pre-existing laws, or that the concurrence of the House of Representatives, or sanction of Congress, should, under any circumstances, be necessary to give validity or force to a Treaty, how can we account for the total silence of the constitution on this subject, and that there should not be a single sentence in the whole instrument that even looks that way? If any limitation was intended, the convention certainly knew that it was necessary it should be inserted. When we examine the constitution, and see with what accuracy and care it is drawn up, how wonderfully every part of it is guarded, that there is not a single word but appears to have been carefully examined, and when we call to mind the members of that convention, and find them to have been the ablest and most accurate men of our country, we cannot presume that we should have been left to the sad alternative, for the purpose of explaining so important an article of our constitution, which might have been so easily made definite, to be obliged to resort to the British House of Commons for precedents, and those too which were derived from the most turbulent periods of the Government of that nation; when, it is a possible case, that the change of a Ministry, or the rage of party, might have been more immediately the object of pursuit than the true interest of the nation; more especially as the practice of our own Government, and the legal opinion of our own country, were directly opposed to such a construction. But if all this might be supposed not to have had sufficient weight to have induced the convention to have introduced such a limitation, or some intimation that such limitation was intended, they must have supposed it necessary when they handed out with the constitution, which were declared by the ratification thereof to be the supreme law of the land, Treaties of every description, commercial as well as others. To me, the language of this transaction is, we have, by one article of this constitution, granted the Treaty-making power, in general terms, to the PRESIDENT and Senate. MARCH 24.--[The question was taken on Mr. LIVINGSTON's resolution, which is in the following words:] "_Resolved_, That the President of the United States be requested to lay before this House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, communicated by his Message of the first of March, together with the correspondence and other documents relative to the said Treaty; excepting such of said papers as any existing negotiation may render improper to be disclosed." The division on this resolution, in Committee of the Whole, was--for the resolution 61, against it 38--majority 23. The resolution was then taken up in the House, and the yeas and nays being called upon it, were taken, and stood yeas 62, nays 37, as follows: YEAS.--Theodorus Bailey, David Bard, Abraham Baldwin, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Samuel J. Cabell, Gabriel Christie, Thomas Claiborne, John Clopton, Isaac Coles, Henry Dearborn, George Dent, Gabriel Duvall, Samuel Earle, William Findlay, Jesse Franklin, Albert Gallatin, William B. Giles, James Gillespie, Andrew Gregg, Christopher Greenup, William B. Grove, Wade Hampton, George Hancock, Carter B. Harrison, John Hathorn, Jonathan N. Havens, John Heath, James Holland, George Jackson, Aaron Kitchell, Edward Livingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Frederick A. Muhlenberg, Anthony New, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, John Patton, Francis Preston, John Richards, Robert Rutherford, John S. Sherburne, Israel Smith, Samuel Smith, Thomas Sprigg, John Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn. NAYS.--Benjamin Bourne, Theophilus Bradbury, Daniel Buck, Joshua Coit, William Cooper, Abiel Foster, Dwight Foster, Nathaniel Freeman, jr., Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, James Hillhouse, William Hindman, John Wilkes Kittera, Samuel Lyman, Francis Malbone, William Vans Murray, John Reed, Theodore Sedgwick, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac Smith, William Smith, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Peleg Wadsworth, John Williams. RECAPITULATION.--Yeas 62, nays 37, absent 5--104--the Speaker 1--whole number of Representatives 105.[72] Mr. DAYTON, the Speaker, in Committee of the Whole, voted against the resolution. MARCH 25.--The committee, (Messrs. LIVINGSTON and GALLATIN,) appointed to present the resolution agreed to yesterday to the PRESIDENT, reported, that the PRESIDENT answered, that he would take the resolution into consideration. MARCH 30.--The following Message was received from the PRESIDENT in answer to the resolution of the House: _Gentlemen of the House of Representatives:_ With the utmost attention I have considered your resolution of the 24th instant, requesting me to lay before your House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, together with the correspondence and other documents relative to that Treaty, excepting such of the said papers as any existing negotiation may render improper to be disclosed. In deliberating upon this subject, it was impossible for me to lose sight of the principle which some have avowed in its discussion, or to avoid extending my views to the consequences which must flow from the admission of that principle. I trust that no part of my conduct has ever indicated a disposition to withhold any information which the constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress as a right; and, with truth, I affirm, that it has been, as it will continue to be, while I have the honor to preside in the Government, my constant endeavor to harmonize with the other branches thereof, so far as the trust delegated to me by the people of the United States, and my sense of the obligation it imposes, to "preserve, protect, and defend the constitution," will permit. The nature of foreign negotiations requires caution; and their success must often depend on secrecy; and even, when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations; or produce immediate inconveniences, perhaps danger and mischief, in relation to other Powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making Treaties in the President with the advice and consent of the Senate; the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign Power, would be to establish a dangerous precedent. It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed. I repeat, that I have no disposition to withhold any information which the duty of my station will permit, or the public good shall require; to be disclosed; and, in fact, all the papers affecting the negotiation with Great Britain were laid before the Senate, when the Treaty itself was communicated for their consideration and advice. The course which the debate has taken on the resolution of the House, leads to some observations on the mode of making Treaties under the Constitution of the United States. Having been a member of the General Convention, and knowing the principles on which the constitution was formed, I have ever entertained but one opinion on this subject, and from the first establishment of the Government to this moment, my conduct has exemplified that opinion, that the power of making Treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every Treaty so made, and promulgated, thenceforward becomes the law of the land. It is thus that the Treaty-making power has been understood by foreign nations, and in all the Treaties made with them, _we_ have declared, and _they_ have believed, that when ratified by the President, with the advice and consent of the Senate, they became obligatory. In this construction of the constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared to my knowledge that this construction was not the true one. Nay, they have more than acquiesced; for until now, without controverting the obligation of such Treaties, they have made all the requisite provisions for carrying them into effect. There is also reason to believe that this construction agrees with the opinions entertained by the State Conventions, when they were deliberating on the constitution, especially by those who objected to it, because there was not required in Commercial Treaties the consent of two-thirds of the whole number of the members of the Senate, instead of two-thirds of the Senators present, and because, in Treaties respecting territorial and certain other rights and claims, the concurrence of three-fourths of the whole number of the members of both Houses respectively was not made necessary. It is a fact, declared by the General Convention, and universally understood, that the Constitution of the United States was the result of a spirit of amity and mutual concession. And it is well known that, under this influence, the smaller States were admitted to an equal representation in the Senate, with the larger States; and that this branch of the Government was invested with great powers; for, on the equal participation of those powers, the sovereignty and political safety of the smaller States were deemed essentially to depend. If other proofs than these, and the plain letter of the constitution itself, be necessary to ascertain the point under consideration, they may be found in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear, that a proposition was made, "that no Treaty should be binding on the United States which was not ratified by a law," and that the proposition was explicitly rejected. As, therefore, it is perfectly clear to my understanding, that the assent of the House of Representatives is not necessary to the validity of a Treaty; as the Treaty with Great Britain exhibits in itself all the objects requiring Legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the Government, that the boundaries fixed by the constitution between the different departments should be preserved--a just regard to the constitution and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request. G. WASHINGTON.[73] UNITED STATES, _March 80, 1796_. REFERENCE OF THE ANSWER TO A COMMITTEE OF THE WHOLE. MARCH 31.--Mr. BLOUNT moved that the Message be referred to a Committee of the Whole on the state of the Union. Mr. GILES was of opinion it had better be referred to a Committee of the Whole simply. Mr. SEDGWICK saw no reason for such a reference. He wished gentlemen would point out the object of the motion. Mr. THATCHER saw no good to be obtained by referring it. The House had requested the PRESIDENT to lay certain papers before them; the PRESIDENT answers, that he has none for them. Why a reference? The House asked a question; the PRESIDENT answered in the negative--for what purpose refer the answer? what would be gained by it? Mr. BLOUNT observed, that the PRESIDENT's Message stands upon the journals of the House; he wished, also, that the House should state upon their journals the reasons which influenced them to make the request. Perhaps, also, he said, a consideration of the Message might lead to some further measure proper to be adopted. He was indifferent whether it was referred to a Committee of the Whole on the state of the Union, or a Committee of the Whole, simply. Mr. NICHOLAS remarked that it was prejudging the question to say that nothing could arise out of a consideration of the Message. The present is a crisis important in the affairs of the country, independently of the Treaty. If the Message was a proper subject of discussion, it was proper to refer it to a Committee of the Whole. He did not think a reference to the Committee of the Whole on the state of the Union proper; because the Message points to a subject differing from that referred to that committee. The investigation at any rate could produce nothing wrong. Mr. GILES said, that the member from North Carolina (Mr. BLOUNT) had explained the object he had in view by a reference. He preferred a reference to a Committee of the Whole, independently; because the Message itself would furnish matter enough for consideration by itself. He should object to its being referred to the Committee of the Whole, who are to take into consideration the British Treaty; because he never would consent to act upon that subject till the papers deemed material to the investigation were laid upon the table. He hoped the reference to a Committee of the Whole, generally, would be agreed to. It certainly would be proper for the House to state their reasons for the call. This call had given rise to a great constitutional question; the PRESIDENT had stated the reasons of his opinion; if the House were not convinced by them, (and he owned that, for one, he was not,) then it would be proper that they should present to the public their reasons for differing with him. Mr. THATCHER argued, that the reasons of the House were contained in the speeches of members in favor of the motion; the papers had been filled with them, and a pamphlet was going to be published containing them all. If this was not sufficient, the gentlemen had better direct the pamphlet to be copied on the journals. Mr. WILLIAMS considered this a new question, and wished for time to consider. The PRESIDENT's Message is only an answer to a request of the House. It does not call for any thing to be done, then why a reference? Such a reference would be unprecedented. Entering the reasons of the House on the journals could produce no good. The House could not call for the papers more than they had done. He reminded the House that three weeks had already been spent in agreeing to the call; if they agreed to the present motion, they would spend as much more in agreeing to the reasons. The PRESIDENT, in his Message, had mentioned the proceedings of the grand Convention; this was a new topic to him not started in debate; when the Treaty is before the House, perhaps they might wish to have the Message before them on that ground. He should vote for the reference if gentlemen could assign (what they had not yet done) a proper motive for it. Mr. SEDGWICK urged that the reasons of the majority would make a large book. Were the Committee of the Whole to turn authors and write a dissertation on part of the constitution? The people did not send their Representatives here for any such purpose, and he hoped it would not be persisted in. If the reasons of the House were to be drafted, he ventured to predict, that they would reach the end of their political career before the discussion that must necessarily arise upon them would be brought to a close. Such a measure would be unprecedented, and lead to a great waste of time, and continually defeat the real objects of their mission. The session had been long enough already, and it must be lengthened to accomplish the necessary business of it. If the gentlemen would write books, he was confident every body would buy them; but he could not see the propriety of the present motion. Mr. BLOUNT observed, that the PRESIDENT refers, in his Message, to the debate in the House, and insinuates that the House contend for a right not given them by the constitution. This was the first instance of any importance of a difference between the House of Representatives and the Executive respecting a great constitutional point; it was then proper to make such a disposal of the Message as to enable the House to state their reasons in support of their opinion, that the people may be rightly informed, that they may see the House is attempting no encroachment. Mr. HEATH hoped the Message would not be passed over in silence. The PRESIDENT surely is not infallible. A very important constitutional question is involved; he hoped the reference would be agreed to. Mr. SITGREAVES was against the motion. The House have made a demand on the PRESIDENT; the PRESIDENT refused it; this must naturally put an end to the correspondence on this subject. The difference of sentiment between the two branches is not sufficient reason for converting the journals of the House into a volume of debates. If the majority are to place their reasons, the minority cannot be denied the same indulgence; then for a rejoinder, rebutters, surrebutters, without end. From the practice of the House, in a case analogous, a rule of conduct for the present case may be drawn. When a bill is sent to the PRESIDENT, if he dislikes it, he negatives and sends it to the House with his reasons. Those reasons are put on the journals, as directed by the constitution; but it contains nothing to direct or authorize the majority to register their reasons, and thus to enter into a controversy. The return bill is put to vote, and if two-thirds of each House agree to it, it passes; if not, it falls to the ground, but no reasons are entered on the part of the House. Mr. GALLATIN said he did not expect the motion for a reference would have met with any opposition. Some members are of opinion, that the Message should be passed over in silence; others had resolved to ground some act upon it. There exists a difference, then, on this first point. The natural course is, then, a reference to a Committee of the Whole, to determine whether the House would act further on the business. In Committee of the Whole a discussion could be had concerning the propriety of acting further on the Message. When the House made the call for papers, they did not give their reasons in the resolution; it was but a bare request. The PRESIDENT decided he could not comply with it. If he had stopped here, perhaps there might be grounds for ending the correspondence here; but he was not satisfied with this, but has entered into his motives for refusing. Indeed, he had gone further; he had adverted to the debates had in the House. He may be mistaken as to the motives he ascribes to the House. In this delicate situation it is certainly right to notice the Message, and to explain the real motives of the House in support of the motion. If it is a novelty to reply to an answer of the PRESIDENT's, it was equally a novelty, also, in making an answer to notice a debate in support of a resolution. It is necessary to refer the Message to a Committee of the Whole, to determine how to act. He declared his mind was not made up upon this point, and therefore he wished it referred to a Committee of the Whole. Not, however, to the Committee on the state of the Union, because there exists no connection with the subject referred to that committee. Referring to a Committee of the Whole is deciding nothing, but only determining to examine; it could not decide on the propriety of acting. Mr. COOPER said, that the further the gentlemen travelled a wrong road, the further they would get out of a true course, and the more difficult it would be to return. Mr. HARPER observed, that this was not the first attempt to get the House to do something, to commit them to do something further. A motion is now made to refer the Message to a Committee of the Whole, and the House are told, that if the motion be carried, it is nothing, it is deciding nothing, but will only lead to an inquiry whether the House ought to act. He insisted that such a reference would in fact be determining that they would act, and then, in committee, they would determine how, and in that committee, he said they would be asked, why did the House resolve itself into a Committee of the Whole if not to act? So, when the Indian Treaty was ratified, a motion was made to request the PRESIDENT to lay it before the House. When it was laid before them, it was then contended that the House had a right to interfere in the Treaty, or why ask for it? It could not be supposed that gentlemen of any understanding could be imposed upon by such a flimsy sophistry. It was now the proper time, and the House the proper place, he contended, to settle the principle whether the House would sanction any further proceedings on the Message. What reason could be adduced for acting? It is said that the PRESIDENT has not only refused the papers, but given his reasons for the refusal, and that his reference to the debate, and the statement he made about the motives of the House, might be found incorrect; that the PRESIDENT may have attributed to the majority motives they were not willing to avow. The motives had been avowed by the gentleman who led the business from Pennsylvania. Mr. HARPER was called to order. He concluded by declaring that he would vote against the reference. Mr. VARNUM observed, that a great constitutional question was to be decided; two branches of the Government differed, and they had joined issue. The PRESIDENT had given the reasons of his opinion; it was right, also, that the people should know the sense of the House. Shall the House take no further measures on the subject, and receive the answer of the PRESIDENT as obligatory with regard to the question? He believed every member of the House has, as well as the PRESIDENT, the right to avow his principles, and to judge of the import of the different parts of the constitution. The House he conceived under an obligation to consider the question: if they found, upon consideration, reason to recede from their opinions, he hoped they would. He wished the subject examined with temper and candor. Mr. KITTERA chiefly dwelt on the length of time, which, if the motion was agreed to, would be consumed in the business. He also touched on the impropriety of entering into a disquisition on the merits of this question on the journals. Mr. CRABB.--Mr. SPEAKER, I hope the Message received from the PRESIDENT, in answer to the resolution of this House, calling for certain papers relative to the British Treaty, will be referred to a Committee of the whole House. My reasons for this wish are, because the PRESIDENT has refused the papers on constitutional principles, and has thought proper to go into a detail of the reasons which led to a formation of his opinion; therefore I apprehend it proper to make the reference, in order, that if the reasons urged by the PRESIDENT are such as to convince this House that he is right as to the constitutional question, that they may have an opportunity to acknowledge it, that it may be so known and understood abroad, inasmuch as the contrary opinion has been promulgated; and again, I wish the reference, that this House may, with respect and calm deliberation, consider the PRESIDENT's Message, and the reasons on which his refusal to send the papers is grounded, that if those reasons are not such as to convince or change the opinion of this House, they, in that case, may have an opportunity so to express themselves, and to introduce resolutions to that effect, that the opinion of this House, on this great constitutional question, after the receipt and consideration of the PRESIDENT's Message, may be fully known, clearly understood, and stamped on your journals. I think this a necessary measure, inasmuch as sundry Treaties lately negotiated are now before this House, and by a declaratory resolution, as before stated, this House may save the constitutional principle, and feel themselves at perfect liberty to pass the necessary laws to carry these Treaties into complete effect, without conveying the implication, that they think they are bound so to do, and have not a constitutional right to reject and refuse, when even they shall judge the general prosperity of the Union, and the interest of their constituents, may be promoted by that refusal. Mr. GILES said, he had not expected the subject would have been treated with ridicule, and that members in reply should advise others to go and write pamphlets. The motives of a branch of Government must necessarily differ from the motives of individuals expressed in their speeches. A majority of the House, when their sentiments are collected, speak the sense of the House. He adverted to the practice of the House when the PRESIDENT returns a bill, which had been mentioned by the opposers of the motion, and observed, that in cases of that kind the message of the PRESIDENT was acted upon. He observed on the importance of the subject, and insisted on the propriety of the House expressing their reasons for their vote. They owe it to themselves, to the United States, to the whole world, to exhibit their reasons for what the PRESIDENT has declared to be an unconstitutional call. For this purpose, the Message should be referred to a Committee of the Whole, where a proper motion would be brought forward, and could be freely discussed. If it had been proposed to refer the Message to a select committee, to place the business into a few hands, there might have been an objection, but a reference to a Committee of the Whole he considered quite unexceptionable. Mr. N. SMITH said the present was a most singular motion; and, after noticing the several reasons which had been given for the measure, thought none of them had any weight. He said the referring of the Message could only have one effect; it would engage three weeks more of their time; and yet, gentlemen who had been very economical with respect to time, on the late great constitutional point, by calling for the question from day to day, now proposed to consume it in the way proposed. He should, however, now show that economy on account of time, which had been so much insisted upon on a former occasion. The yeas and nays were now taken on the question of a reference of the PRESIDENT's Message to a Committee of the Whole; and the motion was agreed to--yeas 55, nays 37. DEBATE ON THE PRESIDENT'S ANSWER. APRIL 6.--The House accordingly resolved itself into a Committee of the Whole on said Message. Mr. BLOUNT brought forward the following resolutions: "_Resolved_, That, it being declared by the second section of the second article of the constitution, 'that the President shall have power, by and with the advice of the Senate, to make Treaties, provided two-thirds of the Senate present concur,' the House of Representatives do not claim any agency in making Treaties; but, that when a Treaty stipulates regulations on any of the subjects submitted by the constitution to the power of Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good.[74] "_Resolved_, That it is not necessary to the propriety of any application from this House to the Executive, for information desired by them, and which may relate to any constitutional functions of the House, that the purpose for which such information may be wanted, or to which the same may be applied, should be stated in the application." Mr. HARPER, Mr. DAYTON, and Mr. KITCHELL, offered a few remarks with respect to the propriety of considering the resolutions now moved, or those laid upon the table, by Mr. KITCHELL, a few days ago. After which-- Mr. MADISON rose, and spoke as follows: When the Message was first proposed to be committed, the proposition had been treated by some gentlemen not only with levity, but with ridicule. He persuaded himself that the subject would appear in a very different light to the committee; and he hoped that it would be discussed on both sides without either levity, intemperance, or illiberality. If there were any question which could make a serious appeal to the dispassionate judgment, it must be one which respected the meaning of the constitution; and if any constitutional question could make the appeal with peculiar solemnity, it must be in a case like the present, where two of the constituted authorities interpreted differently the extent of their respective powers. It was a consolation, however, of which every member would be sensible, to reflect on the happy difference of our situation, on such occurrences, from that of governments in which the constituent members possessed independent and hereditary prerogatives. In such governments, the parties having a personal interest in their public stations, and not being amenable to the national will, disputes concerning the limits of their respective authorities might be productive of the most fatal consequences. With us, on the contrary, although disputes of that kind are always to be regretted, there were three most precious resources against the evil tendency of them. In the first place, the responsibility which every department feels to the public will, under the forms of the constitution, may be expected to prevent the excesses incident to conflicts between rival and irresponsible authorities. In the next place, if the difference cannot be adjusted by friendly conference and mutual concession, the sense of the constituent body, brought into the Government through the ordinary elective channels, may supply a remedy. And if this resource should fail, there remains, in the third and last place, that provident article in the constitution itself, by which an avenue is always open to the sovereignty of the people, for explanations or amendments, as they might be found indispensable. If, in the present instance, it was to be particularly regretted that the existing difference of opinion had arisen, every motive to the regret was a motive to calmness, to candor, and the most respectful delicacy towards the other constituted authority. On the other hand, the duty which the House of Representatives must feel to themselves and to their constituents, required that they should examine the subject with accuracy, as well as with candor, and decide on it with firmness, as well as with moderation. In this temper, he should proceed to make some observations on the Message before the committee, and on the reasons contained in it. The Message related to two points. First. The application made for the papers. Secondly. The constitutional rights of Congress, and of the House of Representatives, on the subject of Treaties. On the first point, he observed, that the right of the House to apply for any information they might want, had been admitted by a number in the minority, who had opposed the exercise of the right in this particular case. He thought it clear that the House must have a right, in all cases, to ask for information which might assist their deliberations on the subjects submitted to them by the constitution; being responsible, nevertheless, for the propriety of the measure. He was as ready to admit that the Executive had a right, under a due responsibility, also, to withhold information, when of a nature that did not permit a disclosure of it at the time. And if the refusal of the PRESIDENT had been founded simply on a representation that the state of the business within his department, and the contents of the papers asked for, required it, although he might have regretted the refusal, he should have been little disposed to criticise it. But the Message had contested what appeared to him a clear and important right of the House; and stated reasons for refusing the papers, which, with all the respect he could feel for the Executive, he could not regard as satisfactory or proper. One of the reasons was, that it did not occur to the Executive that the papers could be relative to any purpose under the cognizance, and in the contemplation of the House. The other was, that the purpose for which they were wanted was not expressed in the resolution of the House. With respect to the first, it implied that the Executive was not only to judge of the proper objects and functions of the Executive Department, but, also, of the objects and functions of the House. He was not only to decide how far the Executive trust would permit a disclosure of information, but how far the Legislative trust could derive advantage from it. It belonged, he said, to each department to judge for itself. If the Executive conceived that, in relation to his own department, papers could not be safely communicated, he might, on that ground, refuse them, because he was the competent, though a responsible judge within his own department. If the papers could be communicated without injury to the objects of his department, he ought not to refuse them as irrelative to the objects of the House of Representatives; because the House was, in such cases, the only proper judge of its own objects. The other reason of refusal was, that the use which the House meant to make of the papers was not expressed in the resolution. As far as he could recollect, no precedent could be found in the records of the House, or elsewhere, in which the particular object in calling for information was expressed in the call. It was not only contrary to right to require this, but it would often be improper in the House to express the object. In the particular case of an impeachment referred to in the Message, it might be evidently improper to state that to be the object of information which might possibly lead to it, because it would involve the preposterous idea of first determining to impeach, and then inquiring whether an impeachment ought to take place. Even the holding out an impeachment as a contemplated or contingent result of the information called for, might be extremely disagreeable in practice, as it might inflict a temporary pain on an individual, whom an investigation of facts might prove to be innocent, and perhaps meritorious. From this view of the subject he could not forbear wishing that, if the papers were to be refused, other reasons had been assigned for it. He thought the resolutions offered by the gentleman from North Carolina, one of which related to this subject, ought to stand on the journal along with the Message which had been entered there. Both the resolutions were penned with moderation and propriety. They went no farther than to assert the rights of the House; they courted no reply; and it ought not to be supposed they could give any offence. The second object to which the measure related was the constitutional power of the House on the subject of Treaties. Here, again, he hoped it may be allowable to wish that it had not been deemed necessary to take up, in so solemn a manner, a great constitutional question, which was not contained in the resolution presented by the House, which had been incidental only to the discussion of that resolution, and which could only have been brought into view through the unauthentic medium of the newspapers. This, however, would well account for the misconception which had taken place in the doctrine maintained by the majority in the late question. It had been understood by the Executive, that the House asserted its assent to be necessary to the validity of Treaties. This was not the doctrine maintained by them. It was, he believed, fairly laid down in the resolution proposed, which limited the power of the House over Treaties, to cases where Treaties embraced Legislative subjects, submitted by the constitution to the power of the House. Mr. M. did not mean to go into the general merits of this question, as discussed when the former resolution was before the committee. The Message did not request it, having drawn none of its reasoning from the text of the constitution. It had merely affirmed that the power of making Treaties is exclusively vested by the constitution in the PRESIDENT, by and with the advice and consent of the Senate. Nothing more was necessary on this point than to observe that the constitution had as expressly and exclusively vested in Congress the power of making laws, as it had vested in the PRESIDENT and Senate the power of making Treaties. He proceeded to review the several topics on which the Message relied. First. The intention of the body which framed the constitution. Secondly. The opinions of the State Conventions who adopted it. Thirdly. The peculiar rights and interests of the smaller States. Fourthly. The manner in which the constitution had been understood by the Executive and the foreign nations, with which Treaties had been formed. Fifthly. The acquiescence and acts of the House on former occasions. 1. When the members on the floor, who were members of the General Convention, particularly a member from Georgia and himself, were called on in a former debate for the sense of that body on the constitutional question, it was a matter of some surprise, which was much increased by the peculiar stress laid on the information expected. He acknowledged his surprise, also, at seeing the Message of the Executive appealing to the same proceedings in the General Convention, as a clue to the meaning of the constitution. It had been his purpose, during the late debate, to make some observations on what had fallen from the gentlemen from Connecticut and Maryland, if the sudden termination of the debate had not cut him off from the opportunity. He should have reminded them that this was the ninth year since the Convention executed their trust, and that he had not a single note in this place to assist his memory. He should have remarked, that neither himself nor the other members who had belonged to the Federal Convention, could be under any particular obligation to rise in answer to a few gentlemen, with information, not merely of their own ideas at that period, but of the intention of the whole body; many members of which, too, had probably never entered into the discussions of the subject. He might have further remarked, that there would not be much delicacy in the undertaking, as it appeared that a sense had been put on the constitution by some who were members of the Convention, different from that which must have been entertained by others, who had concurred in ratifying the Treaty. After taking notice of the doctrine of Judge Wilson, who was a member of the Federal Convention, as quoted by Mr. GALLATIN from the Pennsylvania debates, he proceeded to mention that three gentlemen, who had been members of the convention, were parties to the proceedings in Charleston, South Carolina, which, among other objections to the Treaty, represented it as violating the constitution. That the very respectable citizen, who presided at the meeting in Wilmington, whose resolutions made a similar complaint, had also been a distinguished member of the body that formed the constitution. It would have been proper for him, also, to have recollected what had, on a former occasion, happened to himself during a debate in the House of Representatives. When the bill for establishing a National Bank was under consideration, he had opposed it, as not warranted by the constitution, and incidentally remarked, that his impression might be stronger, as he remembered that, in the convention, a motion was made and negatived, for giving Congress a power to grant charters of incorporation. This slight reference to the convention, he said, was animadverted on by several in the course of the debate, and particularly by a gentleman from Massachusetts, who had himself been a member of the convention, and whose remarks were not unworthy the attention of the committee. Here Mr. M. read a paragraph from Mr. GERRY's speech, from the Gazette of the United States, page 814, protesting, in strong terms, against arguments drawn from that source. Mr. M. said, he did not believe a single instance could be cited in which the sense of the convention had been required or admitted as material in any constitutional question. In the case of the Bank, the committee had seen how a glance at that authority had been treated in this House. When the question on the suability of the States was depending in the Supreme Court, he asked, whether it had ever been understood that the members of the bench, who had been members of the convention, were called on for the meaning of the convention on that very important point, although no constitutional question would be presumed more susceptible of elucidation from that source? He then adverted to that part of the Message which contained an extract from the Journal of the convention, showing that a proposition "that no Treaty should be binding on the United States, which was not ratified by law," was explicitly rejected. He allowed this to be much more precise than any evidence drawn from the debates in the convention, or resting on the memory of individuals. But, admitting the case to be as stated, of which he had no doubt, although he had no recollection of it, and admitting the record of the convention to be the oracle that ought to decide the true meaning of the constitution, what did this abstract vote amount to? Did it condemn the doctrine of the majority? So far from it, that, as he understood their doctrine, they must have voted as the convention did; for they do not contend that no Treaty shall be operative without a law to sanction it; on the contrary, they admit that some Treaties will operate without this sanction; and that it is no further applicable in any case than where Legislative objects are embraced by Treaties. The term "ratify" also deserved some attention; for, although of loose signification in general, it had a technical meaning different from the agency claimed by the House on the subject of Treaties. But, after all, whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in expounding the constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Convention, which accepted and ratified the constitution. To these also the Message had referred, and it would be proper to follow it. 2. The debates of the convention in three States (Pennsylvania, Virginia, and North Carolina) had been before introduced into the discussion of this subject, and were believed the only publications of the sort which contained any lights with respect to it. He would not fatigue the committee with a repetition of the passages then read to them. He would only appeal to the committee to decide whether it did not appear, from a candid and collected view of the debates in those conventions, and particularly in that of Virginia, that the Treaty-making power was a limited power; and that the powers in our constitution, on this subject, bore an analogy to the powers on the same subject in the Government of Great Britain. He wished, as little as any member could, to extend the analogies between the two Governments; but it was clear that the constituent parts of two Governments might be perfectly heterogeneous, and yet the powers be similar. At once to illustrate his meaning, and give a brief reply to some arguments on the other side, which had heretofore been urged with ingenuity and learning, he would mention, as an example, the power of pardoning offences. This power was vested in the PRESIDENT; it was a prerogative also of the British King. And, in order to ascertain the extent of the technical term "pardon," in our constitution, it would not be irregular to search into the meaning and exercise of the power in Great Britain. Yet, where is the general analogy between an hereditary Sovereign, not accountable for his conduct, and a Magistrate like the PRESIDENT OF THE UNITED STATES, elected for four years, with limited powers, and liable to impeachment for the abuse of them? In referring to the debates of the State Conventions as published, he wished not to be understood as putting entire confidence in the accuracy of them. Even those of Virginia, which had been probably taken down by the most skilful hand, (whose merit he wished by no means to disparage,) contained internal evidence in abundance of chasms and misconceptions of what was said. The amendments proposed by the several conventions were better authority, and would be found, on a general view, to favor the sense of the constitution which had prevailed in this House. But even here it would not be reasonable to expect a perfect precision and system in all their votes and proceedings. The agitations of the public mind on that occasion, with the hurry and compromise which generally prevailed in settling the amendments to be proposed, would at once explain and apologize for the several apparent inconsistencies which might be discovered. He would not undertake to say that the particular amendment referred to in the Message, by which two States require that "no Commercial Treaty should be ratified without the consent of two-thirds of the whole number of Senators, and that no Territorial right, &c. should be ceded without the consent of three-fourths of the members of both Houses," was digested with an accurate attention to the whole subject. On the other hand, it was no proof that those particular conventions, in annexing these guards to the Treaty power, understood it as different from that espoused by the majority of the House. They might consider Congress as having the power contended for over Treaties stipulating on Legislative subjects, and still very consistently wish for the amendment they proposed. They might not consider the Territorial rights and other objects for which they required the concurrence of three-fourths of the members of both Houses, as coming within any of the enumerated powers of Congress, and, therefore, as not protected by that control over Treaties. And although they might be sensible that Commercial Treaties were under that control, yet, as they would always come before Congress with great weight after they had passed through the regular forms and sanctions of the Treaty department, it might be deemed of real importance that the authority should be better guarded which was to give that weight to them. He asked, whether it might not happen, even in the progress of a Treaty through the Treaty department, that each succeeding sanction might be given, more on account of preceding sanctions than of any positive approbation? And no one could doubt, therefore, that a Treaty which had received all these sanctions would be controlled with great reluctance by the Legislature, and, consequently, that it might be desirable to strengthen the barriers against making improper Treaties, rather than trust too much to the Legislative control over carrying them into effect. But, said Mr. M., it will be proper to attend to other amendments proposed by the ratifying conventions, which may throw light on their opinions and intentions on the subject in question. He then read from the Declaration of Rights proposed by Virginia to be prefixed to the constitution, the seventh article, which is as follows: "That all power of suspending laws, or the execution of laws, by any authority, without the consent of the Representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised." The Convention of North Carolina, as he showed, had laid down the same principle in the same words. And it was to be observed that, in both conventions, the article was under the head of a Declaration of Rights, "asserting and securing from encroachment the essential and inalienable rights of the people," according to the language of the Virginia Convention; and "asserting and securing from encroachment the great principles of civil and religious liberty, and the inalienable rights of the people," as expressed by the Convention of North Carolina. It must follow that these two Conventions considered it as a fundamental, inviolable, and universal principle in a free Government, that no power could supersede a law without the consent of the Representatives of the people in the Legislature. In the Maryland Convention also, it was among the amendments proposed, though he believed not decided on, "that no power of suspending laws, or the execution of laws, unless derived from the Legislature, ought to be exercised or allowed." The Convention of North Carolina had further explained themselves on this point, by their twenty-third amendment proposed to the constitution in the following words: "That no Treaties shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed or made conformable to such Treaty; nor shall any Treaty be valid which is contradictory to the Constitution of the United States." The latter part of the amendment was an evidence that the amendment was intended to ascertain rather than to alter the meaning of the constitution; as it could not be supposed to have been the real intention of the constitution that a Treaty contrary to it should be valid. He proceeded to read the following amendments accompanying the ratification of State Conventions: The New York Convention had proposed "that no standing army or regular troops shall be raised or kept up in time of peace without the consent of two-thirds of the Senators and Representatives in each House." "That no money be borrowed on the credit of the United States, without the assent of two-thirds of the Senators and Representatives in each House." The New Hampshire Convention had proposed "that no standing army shall be kept up in time of peace, unless with the consent of three quarters of the members of each branch of Congress." In the Maryland Convention a proposition was made in the same words. The Virginia Convention had proposed "that no navigation law, or law regulating commerce, shall be passed without the consent of two-thirds of the members present in both Houses." "That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two-thirds of the members present in both Houses." "That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war." The Convention of North Carolina had proposed the same three amendments in the same words. On a review of these proceedings, may not, said he, the question be fairly asked, whether it ought to be supposed that the several Conventions who showed so much jealousy with respect to the powers of commerce, of the sword, and of the purse, as to require, for the exercise of them, in some cases two-thirds, in others three-fourths of both branches of the Legislature, could have understood that, by the Treaty clauses in constitution, they had given to the PRESIDENT and Senate, without any control whatever from the House of Representatives, an absolute and unlimited power over all those great objects? 3. It was with great reluctance, he said, that he should touch on the third topic--the alleged interest of the smaller States in the present question. He was the more unwilling to enter into this delicate part of the discussion, as he happened to be from a State which was in one of the extremes in point of size. He should limit himself, therefore, to two observations. The first was, that if the spirit of amity and mutual concession from which the constitution resulted was to be consulted on expounding it, that construction ought to be favored which would preserve the mutual control between the Senate and House of Representatives, rather than that which gave power to the Senate not controllable by, and paramount over those of the House of Representatives, whilst the House of Representatives could in no instance exercise their powers without the participation and control of the Senate. The second observation was, that, whatever jealousy might unhappily have prevailed between the smaller and larger States, as they had most weight in one or the other branch of Government, it was a fact, for which he appealed to the journals of the old Congress from its birth to its dissolution, and to those of the Congress under the present Government, that in no instance would it appear, from the yeas and nays, that a question had been decided by a division of the votes according to the size of the States. He considered this truth as affording the most pleasing and consoling reflection, and as one that ought to have the most conciliating and happy influence on the temper of all the States. 4. A fourth argument in the Message was drawn from the manner by which the Treaty power had been understood by both parties in the negotiations with foreign Powers. "In all the Treaties made _we_ have declared and _they_ have believed," &c. By _we_, he remarked, was to be understood the Executive alone, who had made the declaration, and in no respect the House of Representatives. It was certainly to be regretted, as had often been expressed, that different branches of the Government should disagree in the construction of their powers; but when this could not be avoided, each branch must judge for itself; and the judgment of the Executive could in this case be no more an authority overruling the judgment of the House than the judgment of the House could be an authority overruling that of the Executive. It was also to be regretted that any foreign nation should at any time proceed under a misconception of the meaning of our constitution. But no principle was better established in the laws of nations, as well as in common reason, than that one nation is not to be the interpreter of the constitution of another. Each nation must adjust the forms and operations of its own government, and all others are bound to understand them accordingly. It had before been remarked, and it would be proper to repeat it here, that of all the nations Great Britain would be the least likely to object to this principle, because the construction given to our Government was particularly exemplified in her own. 5. In the fifth and last place, he had to take notice of the suggestion, that every House of Representatives had concurred in the construction of the Treaty power, now maintained by the Executive; from which it followed that the House could not now consistently act under a different construction. On this point, it might be sufficient to remark, that this was the first instance in which a foreign Treaty had been made since the establishment of the constitution; and that this was the first time the Treaty-making power had come under formal and accurate discussion. Precedents, therefore, would readily be perceived to lose much of their weight. But whether the precedents found in the proceedings preparatory to the Algerine Treaty, or in the provisions relative to the Indian Treaties, were inconsistent with the right which had been contended for in behalf of the House, he should leave to be decided by the committee. A view of these precedents had been pretty fully presented to them by a gentleman from New York, (Mr. LIVINGSTON,) with all the observations which the subject seemed to require. On the whole it appeared that the rights of the House on the two great constitutional points had been denied by a high authority in the Message before the committee. This Message was entered on the journals of the House. If nothing was entered in opposition thereto, it would be inferred that the reasons in the Message had changed the opinion of the House, and that their claims on those great points were relinquished. It was proper, therefore, that the questions, brought fairly before the committee in the propositions of the gentleman (Mr. BLOUNT) from North Carolina, should be examined and formally decided. If the reasoning of the Message should be deemed satisfactory, it would be the duty of this branch of the Government to reject the propositions and thus accede to the doctrines asserted by the Executive. If, on the other hand, this reasoning should not be satisfactory, it would be equally the duty of the House, in some such firm, but very decent, terms as are proposed, to enter their opinions on record. In either way the meaning of the constitution would be established, as far as depends on the vote of the House of Representatives. APRIL 7.--The order of the day being called for on the consideration of the PRESIDENT's Message, the House resolved itself into a Committee of the Whole on that subject, and the resolutions of Mr. BLOUNT having been read-- Mr. SWIFT and Mr. W. SMITH rose together, but Mr. SMITH giving way, Mr. SWIFT proceeded to remark, that he did not rise for the purpose of going into the subject, but to move that the question might be then taken. The same principles which were involved in the present question, had already undergone a discussion of three weeks, and no doubt could remain on the mind of any gentleman in that House on the subject; nor did he think that if three weeks more were to be consumed in the discussion, one opinion would be changed. Therefore, as business of the utmost consequence called for their attention, as it was of the last importance that the Treaties lately formed with foreign nations should be carried into effect, he hoped they would enter upon the question of the state of the Union. If gentlemen wished to carry the Treaties into effect, he entreated them to come forward and do so; or, if they meant to defeat them, he wished them at once to say so. If they went into the present discussion at length, there would not be time sufficient to determine upon the Treaties. He was willing to let the matter rest upon the representation of the gentleman from Virginia. He himself had taken no share in the debate, though if it were to be again gone into, he should desire to be heard as well as others. But he was fully satisfied that gentlemen who had spoken on a former occasion would unite with him in wishing the question to be then taken. The resolutions were then severally put and carried--51 members rising for each. The House then took them up. The previous question was called, viz: Shall the question now be put?--on which the yeas and nays were taken, and stood--yeas 54, nays 37. The yeas and nays were taken on the first resolution, and stood--yeas 57, nays 35, as follows: YEAS.--Theodorus Bailey, Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Nathan Bryan, Dempsey Burges, Samuel J. Cabell, Gabriel Christie, John Clopton, Isaac Coles, Jeremiah Crabb, Henry Dearborn, George Dent, Samuel Earle, William Findlay, Jesse Franklin, Albert Gallatin, William B. Giles, Nicholas Gilman, Andrew Gregg, William B. Grove, Wade Hampton, George Hancock, Carter B. Harrison, John Hathorn, Jonathan N. Havens, John Heath, Daniel Heister, George Jackson, Edward Livingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Frederick A. Muhlenberg, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, John Patton, Francis Preston, John Richards, Robert Rutherford, John S. Sherburne, Israel Smith, Samuel Smith, Thomas Sprigg, John Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn. _Nays._--Fisher Ames, Benjamin Bourne, Theophilus Bradbury, Daniel Buck, Joshua Coit, William Cooper, Abiel Foster, Dwight Foster, Ezekiel Gilbert, Henry Glenn, Benjamin Goodhue, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, Thomas Henderson, James Hillhouse, William Hindman, John Wilkes Kittera, Samuel Lyman, Francis Malbone, William Vans Murray, John Reed, Theodore Sedgwick, Jeremiah Smith, Nathaniel Smith, William Smith, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Peleg Wadsworth, and John Williams. The second resolution was then taken up, and the yeas and nays stood as on the first. The following members were absent when the yeas and nays were called on the main questions: Messrs. Brent, Claiborne, Gillespie, Greenup, Holland, New, and Sitgreaves. The following members were away upon leave of absence: Messrs. Freeman, Kitchell, Leonard and Isaac Smith. It was understood that the following members would have voted for the resolutions had they been present: Messrs. Brent, Claiborne, Gillespie, Greenup, Holland, and New. RECAPITULATION. Yeas in the House, 57 Yeas absent, 6--63 Nays in the House, 35 Mr. Sitgreaves absent (probably against the resolution) 1--36 -- Majority for the resolutions, 27[75] Absent on leave, 4 Mr. Duvall, resigned, 1 The Speaker, 1 ---- Whole number of members, 105 FRIDAY, April 15. _The Treaty with Great Britain._ The House then resolved itself into a committee of the Whole on the state of the Union, when, having read the resolution for carrying the British Treaty into effect-- Mr. BUCK rose, and wished the question to be taken upon Mr. MACLAY's resolution.[76] This was opposed by Mr. MADISON and Mr. HILLHOUSE, and then Mr. MADISON addressed the Chair as follows: Mr. M. said, on a subject of such extent and importance, he should not attempt to go through all the observations that might be applicable to it. A general view of the subject was all that he meant at present. His omissions would be more than supplied by others who might enter into the discussion. The proposition immediately before the committee was, that the Treaty with Great Britain ought to be carried into effect by such provisions as depended on the House of Representatives. This was the point immediately in question. But it would be proper in examining it to keep in view also the proposition of the gentleman from Pennsylvania (Mr. MACLAY) which had been referred to the committee, and which would be taken up, of course, if the immediate question should be decided in the negative. If the proposition for carrying the Treaty into effect be agreed to, it must be from one of three considerations: either that the Legislature is bound by a constitutional necessity to pass the requisite laws without examining the merits of the Treaty, or that, on such examination, the Treaty is deemed in itself a good one, or that there are good extraneous reasons for putting it into force, although it be in itself a good one, or that there are good extraneous reasons for putting it into force, although it be in itself a bad Treaty. The first consideration being excluded by the decision of the House, that they have a right to judge of the expediency or inexpediency of passing laws relative to Treaties; the question first to be examined must relate to the merits of the Treaty. He then proceeded to consider the Treaty under three aspects: first, as it related to the execution of the Treaty of Peace in 1783; secondly, as it determines the several points in the law of nations; thirdly, as it respects the commerce between the two nations. First. He would not inquire on which side the blame lay, of having first violated the Treaty of 1783, or of having most contributed to delay its execution, although he did not shrink from the task under any apprehension that the result could be disadvantageous to this country. The Treaty itself had waived this inquiry, and professed to adjust all controversies on this subject, without regard to the mutual complaints or pretensions of the parties. It was, therefore, justly and naturally to be expected, that the arrangements for carrying that Treaty into effect would have been founded in the most exact and scrupulous reciprocity. Was this the case? He was sorry, that on the contrary, the arrangements were founded on the grossest violation of that principle. There were two articles which had not been executed by Great Britain; that which related to the negroes and other property carried away, and that which required a surrender of the posts. The article unexecuted by the United States was, that which required payment of all _bona fide_ debts, according to the Treaty now in question: this article is now to be carried into the most complete effect by the United States, and damages to the last fraction are to be paid for the delay. Is there a reciprocal stipulation by Great Britain with respect to the articles unexecuted by her? Nothing like it. She is wholly absolved from the obligation to fulfil one of the articles, viz: that relating to the negroes, &c., and she is to make no compensation whatever for delaying to fulfil the other, viz: the surrender of the posts. It has been urged in apology for those very unequal stipulations, that the injury resulting from a forbearance to surrender the posts, was not susceptible of any precise liquidation into pecuniary damages. However plausible this might appear, it was by no means satisfactory. Commissioners, such as were appointed, with full discretion for other purposes, might have been charged with this subject, and if they could not have done exact justice, might have mitigated the injustice of doing nothing. Apologies have been attempted also for the very extraordinary abandonment of the compensation due for the negroes, &c. It was said to be at least doubtful whether this claim was authorized by the seventh article of the Treaty of Peace, and that Great Britain had uniformly denied the meaning put by the United States on that article. In reply he made two remarks. First, that it was not true that Great Britain had uniformly denied the American construction of that article; on the contrary, he believed, it could be proved, that till of late, Great Britain had uniformly admitted this construction, and had rejected the claim on no other ground than the alleged violation of the fourth article on the part of the United States. But had it been true that Great Britain had uniformly asserted a different construction of the article, and refused to accede to ours, what ought to have been done? Ought we to have at once acceded to hers? By no means. Each party had an equal right to interpret the compact; and if they could not agree, they ought to have done in this what they did in other cases where they could not agree; that is, have referred the settlement of the meaning of the compact to an arbitration. To give up the claim altogether, was to admit, either that Great Britain had a better right than the United States to explain the controverted point, or that the United States had done something which in justice called for a sacrifice of their equal right. It was evident, he thought, from this view of the subject, that the arrangements with respect to the Treaty of Peace were frequently wanting both in justice and reciprocity. Besides the omissions in favor of Great Britain, already pointed out with respect to the execution of the Treaty of Peace, he observed, that conditions were annexed to the partial execution of it in the surrender of the Western posts, which increased the general inequality of this part of the Treaty, and essentially affected the value of those objects. The value of the posts to the United States was to be estimated by their influence, 1st. on the Indian trade; 2d. on the conduct and temper of the Indians towards the United States. Their influence on the Indian trade depended principally on the exclusive command they gave to the several carrying places connected with the posts. These places were understood to be of such importance in this respect, that those who possessed them exclusively would have a monopoly, or nearly a monopoly, of the lucrative intercourse with a great part of the savage nations. Great Britain having hitherto possessed these places exclusively, has possessed this advantage. It was expected that the exclusive transfer of them would transfer the advantage to the United States. By the Treaty now concluded, the carrying places are to be enjoyed in common, and it will be determined by the respective advantages under which British and American traders will engage in the trade, which of them is to share most in it. In this point of view he thought the regulation highly impolitic and injurious. He would say little of the advantage which the British would have in their superior capital: that must be encountered in all our commercial rivalships. But there was another consideration which ought to have great weight on this subject. The goods imported for the Indian trade through Canada pay no duties. Those imported through the United States for that trade, will have paid duties from seven to ten per cent., and every one must see that a drawback is impracticable, or would be attended with an expense which the business would not bear. So far, then, as the importance of the posts is to be considered in a commercial view, they are, in a very great measure, stripped of it by the condition annexed to the surrender of them. Instead of a monopoly in our favor, the carrying places are made common under circumstances which may leave a monopoly in the hands of Great Britain. And this is done, too, by an article which is to last for ever. Second. The influence of the posts on the general conduct of the Indians, is well known to depend chiefly on their influence on the Indian trade. In proportion, therefore, as the condition annexed to the surrender of posts affects the one, it must affect the other. If the British should continue to enjoy the Indian trade, they would continue to influence the Indian conduct; if not in the same degree as heretofore, at least in so great a degree as to condemn the article in question. He took notice also of the inequality of the stipulation which opened all the ports of the United States, as the condition of having those of an unimportant province of Great Britain opened in return. With respect to the Mississippi he could not but consider the clause relating to it as being singularly reprehensible. Happily the adjustment of our claims with Spain had been brought about before any evil operation of the clause had been experienced. But the tendency of it, he thought, could not be doubted. It was the more remarkable, that this extension of the privileges of Great Britain on the Mississippi beyond those in the Treaty of Peace, should have been admitted into the new Treaty, because it is supposed by the Treaty itself, that Great Britain may be deprived, by her real boundary, of all pretensions to a share in the banks and waters of the Mississippi. Secondly. With respect to the great points in the law of nations, comprehended in the stipulations of the Treaty, the same want of real reciprocity, and the same sacrifice of the interests of the United States, were conspicuous. It was well known to have been a great and favorite object with the United States, "that free ships make free goods." They have established this principle in all their other Treaties. They have witnessed with anxiety the general effort, and the successful advances towards incorporating this principle into the law of nations; a principle friendly to all neutral nations, and particularly interesting to the United States. He knew that at a former period it had been conceded on the part of the United States that the law of nations stood as the present Treaty regulates it. But it did not follow that more than acquiescence in that doctrine was proper. There was an evident distinction between silently acquiescing in it, and giving it the support of a formal and positive stipulation. The former was all that could have been required, and the latter was more than ought to have been unnecessarily yielded. The article prohibiting sequestration was next considered by Mr. M. He said he should probably be among the last who would be disposed to resort to such an expedient for redress. But he could not approve of a perpetual and irrecoverable abandonment of a defensive weapon, the existence of which might render the use of it unnecessary. The situation of this country in relation to Great Britain was a peculiar one. As we had not fleets and armies to command a respect for our rights, we ought to keep in our hands all such means as our situation gave us. This article was another instance in which no regard was paid to reciprocity. British subjects, it was well known, had and were likely to have in this country a great deal of the property of the King made sacred. American citizens, it was as well known, had little, and were likely to have little of the kind in Great Britain. If a real reciprocity had been intended, why were not other kinds of private property, as vessels and their cargoes, equally protected against violation? These, even within the jurisdiction of Great Britain, are left open to seizure and sequestration, if Great Britain finds it expedient. And why was not property on the high seas under the protection of the law of nations, which is said to be a part of the law of the land, made secure by a like stipulation? This would have given a face of equality and reciprocity to the bargain. But nothing of the sort makes a part of it; where Great Britain had a particular interest at stake, the Treaty watchfully provides for it; when the United States have an equal interest at stake and equally entitled to protection, it is abandoned to all the dangers which it has experienced. After taking this brief notice of the positive evils in this part of the Treaty, he might, he said, add the various omissions which were chargeable on it. But as he should not pretend to exhaust the subject, he would mention one only: the not providing for the respect due to the exhibition of sea papers. He could not but regard this omission as truly extraordinary, when he observed that in almost every modern Treaty, and particularly all our other Treaties, an article on this subject was regularly inserted. Indeed, it had become almost an article of course in the Treaties of the present century. Thirdly. The commercial articles of the Treaty presented the third aspect under which he was to consider it. In the free intercourse stipulated between the United States and Great Britain, it could not be pretended that any advantage was gained by the former. A Treaty was surely not necessary to induce Great Britain to receive our raw materials and to sell us her manufactures. On the other hand, consider what was given up by the United States. When the Government came into operation, it is well known that the American tonnage employed in the British trade bore the most inconsiderable proportion to the British tonnage. There being nothing on our side to contract the influence of capital and other circumstances on the British side, that disproportion was the natural state of things. As some balance to the British advantages, and particularly that of her capital, our laws had made several regulations in favor of our shipping, among which was the important encouragement resulting from the difference of ten per cent. in the duties paid by American and foreign vessels. Under this encouragement the American tonnage has increased in a very respectable proportion to the British tonnage. Nor has Great Britain ever deemed it prudent to attempt any countervailing measures for her shipping, well knowing that we could easily keep up the differences by further measures on our side. But by the Treaty, she has reserved to herself the right to take such countervailing measures against our existing regulations; and we have surrendered our rights to pursue further defensive measures against the influence of her capital. It is justly to be apprehended, therefore, that under such a restoration of the former state of things, the American tonnage will relapse to its former disproportion to the British tonnage. When he turned his attention to the West India branch of the subject, there was still greater cause for wonder and dissatisfaction. As the Treaty now stood, Great Britain was left as free as she ever had been to continue the entire monopoly of the intercourse to British vessels. Recollecting, as he did, and as every member of the committee must do, the whole history of this subject from the peace of 1783, through every subsequent stage of our Independence down to the mission of the late Envoy, it was impossible for him to express his astonishment that any Treaty of Commerce should have ever been acceded to which abandoned the very object for which such a Treaty was ever contemplated. He never could have believed that the time was so near when all the principles, claims, and calculations, which have heretofore prevailed among all classes of people, in every part of the Union, on this interesting point, were to be so completely renounced. A Treaty of Commerce with Great Britain, excluding a reciprocity for our vessels in the West India trade, is a phenomenon which had filled him with more surprise than he knew how to express. He then pointed to the clause which restrains the United States from imposing prohibitions or duties in any case on Britain which did not extend to all other nations; observing that the clause made it impossible to operate on the unreasonable policy of that nation, without suspending our commerce at the same time with all other nations whose regulations with respect to us might be ever so favorable and satisfactory. The fifteenth article had another extraordinary feature, which must strike every observer. In other Treaties, putting the parties on the footing of the most favored nation, it was stipulated that where new favors were granted to a particular nation in return for favors received, the party claiming the new favor should pay the price of it. This was just and proper where the footing of the most favored nation is established at all. But this article gives to Great Britain the full benefit of all privileges that may be granted to any other nation, without requiring from her the same or equivalent privileges with those granted by such nation. Hence it would happen that if Spain, Portugal, or France, should open their Colonial ports to the United States in consideration of certain privileges in our trade, the same privileges would result gratis, and _ipso facto_, to Great Britain. He considered this stipulation as peculiarly impolitic, and that it could not fail, in the view of the committee, to form a very solid and weighty objection to the Treaty. He was not unaware of the stress that would be laid on the article relating to the East Indies. He should leave to others better acquainted than himself with this branch of the subject to explain it. He made two observations, however: one was, that judicious and well informed gentlemen, equally judicious and well informed with any who could be consulted, considered the article as offering not a shadow of advantage to the United States. The other was, that no privilege was stipulated which had not been uniformly heretofore granted without stipulation; and as the grant could have proceeded from no motive but a pure regard to the British interest in that country, there was every reasonable security that the trade would continue open as it had been, under the influence of the same consideration. Such being the character of the Treaty, with respect to the execution of the Treaty of Peace, the great principles of the Law of Nations, and the regulations of commerce, it never could be viewed as having any claim to be carried into effect on its own account. He should conclude, he said, with taking notice of two considerations which had been much used as inducements to carrying the Treaty into effect. 1. It was said that the greater part of the Treaty was to continue two years only after the present war in Europe; and that no very great evils could grow out of it within that period. To this he replied, in the first place, that ten of the articles containing many very objectionable stipulations were perpetual. In the next place, that it would be in the power of Great Britain, at the expiration of the other articles, to produce the same causes for a renewal of them, as are now urged in their favor. If we are now to enforce the Treaty, lest Great Britain should stir up the Indians, and refuse to pay the merchants for the property of which she has plundered them, can she not at the end of two or three years plunder them again to the same or a greater amount? cannot the same apprehensions also be then revived with respect to the Indians, and will not the arguments then be as strong as they are now, for renewing the same Treaty, or making any other equal sacrifice that her purposes may dictate? 2. It was asked, what would be the consequence of refusing to carry the Treaty into effect? He answered, that the only supposable consequence was, that the Executive, if governed by the prudence and patriotism which he did not doubt would govern that department, would, of course, pursue the measures most likely to obtain a reconsideration and remodification of the offensive parts of the Treaty. The idea of war, as a consequence of refusing to give effect to the Treaty, was too visionary and incredible to be admitted into the question. No man would say that the United States, if an independent people, had not a right to judge of their own interests, and to decline any Treaty that did not duly provide for them. A refusal, therefore, in such cases, could give no cause, nor pretext, nor provocation, for war or for any just resentment. But apart from this, was it conceivable that Great Britain, with all the dangers and embarrassments which are thickening upon her, would wantonly make war on a country which was the best market she had in the world for her manufactures, which paid her an annual balance in specie of ten or twelve millions of dollars, and whose supplies were moreover essential to an important part of her dominions? Such a degree of infatuation ought not to be ascribed to any nation. And at the present crisis, for reasons well known, an unprovoked war with Great Britain, on this country, would argue a degree of madness greater than under any other circumstances that could well be imagined. With all the objections therefore to the Treaty which he had stated, he hoped that it would not now be carried into effect; and that an opportunity would take place for reconsidering the subject on principles more just and more favorable to the United States. When Mr. MADISON had concluded, Mr. S. LYMAN rose.--I do not rise, said Mr. L., with an intention to go into a detail upon this subject, or to exhibit a comparative view of the advantages and disadvantages which may attend the operation of this Treaty, but only to make a few remarks, which may be considered as preparatory to a more minute discussion. Although I believe a discussion of this Treaty is not strictly in order, because it does not come before us immediately as a subject of debate and legislation, but as a piece of information from the Executive, yet I have no doubt but that a thorough discussion of its principles may produce a happy effect; for I believe the more it is understood, the less various will be Our sentiments, the greater the degree of unanimity among ourselves, so much the greater will be the unanimity among our constituents. This unanimity is an object of the greatest magnitude, not only as the source of national respectability and honor, but as the only true source of national happiness and prosperity; it is therefore the indispensable duty of Government to maintain internal peace and tranquillity, and upon this ground alone it is I am willing the Treaty should be thoroughly discussed. I am sensible this Treaty presents itself with an unfavorable aspect, and what is the reason? Is it not because we have entertained too exalted ideas of our own national importance? A generous and noble pride we ought to entertain as a nation, and without this pride we should be guilty of ingratitude to Heaven, for Providence has placed within our reach all the resources of national strength and greatness, but we are yet among the nations in a state of minority--a minor must solicit favors, he cannot challenge them. Did we go to the Emperor of Morocco, or to the Dey of Algiers, and challenge a passage for our ships up the Mediterranean? No; but we solicited, and pay dear for that passage; or did we go to the King of Spain, and demand a free navigation of the Mississippi? No; but we negotiated, and success has attended that negotiation; or could we have gone to the King of England, and challenged a participation with his subjects in the commerce of the East and West Indies? Certainly we could not. What then should we have done? Would it have been best to have traded with them upon sufferance, and so to have maintained a precarious kind of commerce? Certainly this would not have done, for in that case we should have been constantly dependent upon the caprice of a capricious Court; this would be extremely mortifying indeed. Commerce, like all other kind of business, ought to be carried on upon generous and open principles, otherwise we establish a system of deceit that would be favorable to pirates and freebooters. Under those circumstances what could we have done? We could not have carved for ourselves, for our strength and greatness were not sufficient; we therefore had to go with the modesty of a minor, and to solicit; and what was the natural consequence of this solicitation? Why, at the first interview with the British Minister, he determined to exact of us at least a complete fulfilment of all that a former Treaty required; and what was that? It was a payment of our _bona fide_ debts; what could we do? He produced our contract, and we said nothing; moral rectitude required a fulfilment of this: it was in vain to say, you have interrupted our commerce, you have carried off our negroes, you have retained the Western posts, and thereby occasioned an expensive and bloody war with the Indians. Some of this language, perhaps, would have had weight with the British Minister, if he had been acting in his private capacity, but he felt and acted like the Minister of a great and powerful nation; interest and glory are their objects, and moral considerations are too apt to vanish before these. It is true, by the law of nature, commerce ought to be free and uninterrupted, but by the law of nations it is otherwise; and what nation shall gainsay this law? We certainly cannot, our strength and greatness are not yet fully ripe; and if they were, we should, in practice, deny this law of nature, and should ratify and confirm this law of nations. Thus, Mr. Chairman, we see that interest and force govern among the nations. I have made these preliminary observations in order that we might contemplate the Treaty upon its true ground, for a want of reciprocity has been a heavy charge brought against it. I have read this Treaty with care and attention, and I am free to own that upon the first perusal of it I had a prejudice against it; it appeared to me that some of its stipulations were too favorable for Britain, and too disadvantageous to ourselves; but we certainly had an able negotiator, and I verily believe he did his utmost to serve his country; the more I have attended to the subject, the more I am reconciled to it. I find the gentlemen who are interested in commerce are almost universally satisfied with the commercial regulations; but there is a more weighty charge brought against it than of a want of reciprocity; it is even said by some to be unconstitutional. This is a heavy charge indeed, and if it is well founded we ought to prevent its operation, for we are sent here as the guardians of the rights of our fellow-citizens, and for that purpose are sworn to support their constitution; if it is unconstitutional, it is a nullity; it is not binding upon the nation; we ought to reject it; but if it is constitutional, and not extremely pernicious, it becomes the supreme law of the land, and we are in that case bound to obey it. When Mr. LYMAN had taken his seat, Mr. SWANWICK addressed the Chair:--One of the most characteristic and strong points of difference that exists between republican and despotic forms of government, said Mr. S., consists in their greater or lesser degree of haste in making or adopting laws. Where the will of a despot is the only law, his simple volition is sufficient to call for the prompt obedience of the subject; but in our happy government, the numerous checks and balances it prescribes every where oppose themselves to haste, to error, or inadvertency, in the formation of laws. In acts of the smallest importance, we see daily that after they have undergone every possible chance of fair and impartial discussion in the House, they are transmitted to another, who equally proceed to revise, correct, and amend them; and even this not being deemed sufficient to secure, as it were, against all possibility of danger, they are sent to the PRESIDENT, who has ten days to consider, and who may return them with his objections. These we are bound respectfully to inscribe on our journals; and if we disagree in opinion with the PRESIDENT, the majority of two-thirds of both branches is requisite to give validity to the law. Do not we discover in all this infinite caution, and a wish rather not to act at all, by the difference of the branches among each other, than to act imprudently or precipitantly; and can we imagine that a constitution thus guarded with respect to laws of little consequence, hath left without a check the immense power of making Treaties, embracing, as in the instrument before us, all our greatest interests, whether they may be of territory, of agriculture, commerce, navigation, or manufacture, and this for an indefinite length of time? No. By one of the guards of that constitution relative to appropriations of money, this Treaty hath, in the last stage of its progress, come before us; we have resolved according to our best judgment of the constitution, and, as we have seen above, according to the meaning and spirit of it, that we have a right to judge of the expediency or inexpediency of carrying it into effect. This will depend on its merits; and this is the discussion now before us. If, in the event, we shall be found to differ in opinion with the other branches as to this subject, it will involve no more animosity or crimination against them than if we differed as to an ordinary law. To what purpose then to sound the alarm, and to ring the tocsin from Georgia to New Hampshire? Do we impeach the Executive? Do we charge bribery or corruption? No, sir. These preliminary remarks I have thought essential, previously to going into a consideration of the merits of the Treaty itself, which hath already been so ably considered by the gentleman last up from Virginia, (Mr. MADISON,) whose mildness of manner and suavity of address were certainly calculated to inspire any thing else than the angry passions so greatly deprecated by the gentleman from Massachusetts, (Mr. S. LYMAN.) These, I hope, will be carefully avoided on all sides, and the debate be concluded with the same good temper and moderation in which it is begun. I must confess, Mr. Chairman, that the first point of view in which this Treaty struck me with surprise was, the attitude Great Britain assumes in it of dictating laws and usages of reception and conduct different towards us, in every different parcel of her empire, while the surface of our country is entirely laid open to her in one general and advantageous point of admission. In Europe, we are told we may freely enter her ports. In the West Indies, we were to sail in canoes of seventy tons burden. In the East Indies we are not to settle or reside without leave of the local government. In the seaports of Canada and Nova Scotia, we are not to be admitted at all; while all our rivers and countries are opened without the least reserve; yet surely our all was as dear to us as the all of any other nation, and not to have been parted with but on equivalent terms. But let us consider the articles distinctly:--first, as to the Mississippi; Great Britain is admitted as freely to navigate on this river, and to frequent the ports on its banks, as we are to go to those on the Thames; yet, it is strange to remark, that, at the time we made the stipulation, we had not ourselves obtained the right we gave. We have since obtained it by Treaty with Spain, and on terms absolutely contradictory to those contained in the British Treaty. The next of the permanent articles I shall notice, is that which respects British debts. It is somewhat remarkable, that the commissioners, who are to judge of these, are permitted the power of adjournment from place to place--a very favorable stipulation for the creditors, whilst the Commissioners on Spoliations, by article 7, are to act only in London, whereby the American claimant must pass with his papers, or send them across the Atlantic, and engage lawyers in a country where law is unusually dear; a circumstance which will deter many from applying at all, and occasion great loss to the United States. I observe, too, that the awards of the Commissioners of British debts are to be paid out of the treasury as awarded by the commissioners. I am surprised not to find in the Report of the Secretary of State, on appropriations to carry this Treaty into effect, some calculation as to the probable amount of these debts, or some provision for lodging, for this purpose, money in the treasury. Gentlemen would then have known the extent to which they were going; but, at present, they can form no judgment on the subject of the money wanted, or of the funds from whence that money is to come. Much hath been said about the tenth article, relative to the sequestration of debts. To be against the adoption of this article, hath been supposed to imply an unwillingness to pay debts lawfully contracted, and very copious abuse hath been thrown on the largest and most populous State in this Union, as having for motive of its opposition, this principle. To say nothing of the degrading nature of such an admission, with respect to the honor of our own country, which ought always to induce us to think the most favorably of it, is it true? Is it true, that an unwillingness to pay debts hath been the principal cause of opposition to this Treaty? Among the names opposed to it, are to be found some as respectable for independence and fortune as any on the Continent. To instance only one of a number, I may cite the celebrated Pennsylvania farmer, John Dickenson, Esq., one of the richest men in these parts of the country, attached to no party, living in great retirement, with a name honorable for the most virtuous efforts in the American Revolution. Can it be supposed that such a character as this is influenced by such a motive? Surely not. Whence arises, then, the opposition? It arises from a conviction that the admission of this article is degrading to the national character. During a late session of Congress an honorable member from New Jersey, (Mr. DAYTON, the present Speaker) fired by a laudable indignation at the robberies committed on our commerce by the British, moved for a provisional sequestration of their property. No sooner was this done, than we saw a report from the Secretary of the Treasury, dated the 16th of January, 1795, recommending the United States to pass a permanent law against sequestration of property in the funds. Congress not having acted on this part of the report, though they adopted other parts, we now see the clause attempted to be brought into a law by way of a Treaty. And it is more singular, as, at the very time the article was agreed to in England, all the European nations were actually sequestering the property of each other. After having thus reviewed the first ten or permanent articles, I think it must appear obvious that the result is, that we have ceded the right to navigate the Mississippi on terms different to those on which we received it from Spain; that we have consented to receive the Western posts on terms that afford too much danger of disturbances by a mixed intercourse of our people, British subjects and Indians; that we have provided, certainly, for an indefinite amount of British debts: whilst our claim for spoliations is left to be decided by commissioners at London, who meet without power of adjournment, and under very extensive latitude of judging according to what may appear to them to be the law of nations, in a country where that law his been twisted so as always to serve as a pretext for spoliations against us; and we have agreed never, in future, to consent to sequestrations, or confiscations, in case, by war or national difference, our property afloat should be confiscated or sequestered by Great Britain to any amount. Let any impartial mind, then, judge of the expediency, on our part, of voting efficacy to so ruinous a contract. I come now to consider the remaining articles of a more temporary nature. The 12th article merits consideration, because, though not included in the general arrangement as ratified, being only suspended, its principles are not wholly abandoned, but left, like a cloud, still to hang over us. This 12th article was intended to regulate our intercourse with the British West Indies, and contemplated the singular provision that we should only navigate thither in vessels of seventy tons burden, whilst the British themselves might put in the employ vessels of any size. How degrading such a stipulation, it is not difficult to conceive! We supply these islands with what the inhabitants have always acknowledged they could get so well nowhere else, and yet our tonnage is to be thus restricted, while theirs is left open to employ vessels of any description. But this is not all: for the sake of getting admission into a few inconsiderable British ports in the West Indies, we are to give up the carriage in our own shipping of cotton, one of our own staple articles, and of sugar, coffee, and indigo, the produce of the French, Spanish, Danish, Swedish, or Dutch islands. How strange a mistake as to the geography of this Western Archipelago, in which the carriage of the produce of St. Domingo alone is worth more nearly than the entire admission to all the other islands put together! The principle contained in this 12th article, thus suspended, ought to have been utterly contradicted or annulled. While existing even in its suspended form, it will prevent my voting for this Treaty, of whose chains it is only an absent link. But we are told whatever may be our fate in the West, all our losses are to be balanced in the East Indies; and we are carried from our own neighborhood, to be sure, to a great distance, in order to have repaid all our sacrifices. Let us examine this 13th article respecting the East India trade, and see if it does not bear a very strict analogy to the West India article that has been exploded. We are to be admitted, it is true, in vessels of any size, but not suffered to settle or reside without leave of the local Government--that is, of the British East India Company. Of all the despotisms in the world that of a mercantile monopolizing company is the worst; yet into such hands we are to fall, and from them to solicit leave to reside or travel in the country. What security can there be for a commerce thus precariously conducted, in which your rivals are your judge? The consumption of India goods being in a great degree out of the question in England, the Company, who have an annual revenue of a million and a half sterling to receive from their possessions in India, have hitherto sold them at vendue in Leadenhall street; and I believe, considering the credit our merchants usually obtained in London on those goods, and the low price the Company sold them at, they could afford to supply us cheaper in England than we could get them from India in time of peace. I find the East India Company themselves state, in 1788, that seventeen-twentieths of the calicoes imported by them were exported, and twelve-twentieths of the muslins also exported, thereby realizing, as they term it, the tribute which India pays to Great Britain through the medium of its commerce. In 1793 the Company state the internal consumption of India calicoes and muslins to be reduced in Britain to almost nothing. They add, every shop offers British muslins for sale, equal in appearance, and of more elegant patterns than those of India, for one-fourth, or perhaps more than one-third less in price. They say nine-tenths of all muslins and calicoes are sold for exportation. The 15th article is one of the most objectionable of the whole Treaty, because it fundamentally contradicts all the provisions heretofore made by our Government for the encouragement and protection of the navigation of this country. By it it is settled that, so far as respects us, no tonnage duties shall be laid on British vessels but what shall be laid on those of all other nations; no duties on British articles but what shall be laid on those of every other nation; no embargo to affect Britain but what affects all other nations alike; American bottoms are left exposed to be charged, in the European British ports, tonnage duties equal to those laid on British bottoms here; countervailing duties may be laid in England to equalize the difference of duties on European or Asiatic goods imported here in British or American vessels; and no additional difference in tonnage or duties of this kind is to be made hereafter. These principles deserve to be separately examined. They virtually repeal all the laws heretofore made as to navigation and impost, by indirectly equalizing the tonnage and duties on the British and American vessels; and they restrain, in future, the powers of Congress on some of the most important regulations of foreign commerce that could come before them. On a review, then, of the commercial articles, they may be summed up as follows: West India trade left blank by the suspension of the 12th article. East India trade subjected to a condition of residence, rendering it precarious, and restricted to a landing of the goods exported in the United States, not known to have ever been imposed in any way similar, on any other nation trading to Bengal, while all nations are constantly allowed an equal liberty of trading there with ourselves. European, and both these trades, liable to an equalization of tonnage and duties, that cannot but operate unfavorably to the American navigation. Should the countervailing duties take place in the British ports in Europe on American vessels, they will probably be shut out of them altogether. In time of foreign war, our ships deprived of the neutral rights of carrying allowed them by Treaty with France and Spain, and exposed to be captured and detained on suspicion, as now daily happens. Naval stores exposed to confiscation by England, when shipped, at a time when she is at war, to the ports of her enemies. In all these instances our navigation is materially endangered and exposed, without any equivalent advantages. May it not now well be asked, Whence it comes that this interest of navigation hath become less an object of care to us than at the time we passed the laws of duty and impost on foreign ships and goods imported into them? I stated the other day my ideas of the immense importance of navigation. Mr. Burke gave the following opinion of a branch of it in 1775: "As to the wealth which the Colonies have drawn from the sea by their fisheries, you had all that matter fully opened at your bar. You surely thought those acquisitions of value, for they seemed even to excite your envy; and yet the spirit with which that enterprising employment has been exercised, ought rather, in my opinion, to have raised your esteem and admiration. And pray, sir, what in the world is equal to it? Pass by the other parts, and look at the manner in which the people of New England have of late carried on the whale fishery. Whilst we follow them among the tumbling mountains of ice, and behold them penetrating into the deepest frozen recesses of Hudson's Bay and Davis's Straits; whilst we are looking for them beneath the Arctic Circle, we hear that they have pierced into the opposite region of Polar cold, that they are at the antipodes, and engaged under the frozen Serpent of South Falkland Island, which, seeming too remote and romantic an object for the grasp of national ambition, is but a stage and resting place in the progress of their victorious industry. Nor is the equinoctial heat more discouraging to them than the accumulated winter of both the poles. We know that whilst some of them draw the line and strike the harpoon on the coast of Africa, others run the longitude, and pursue their gigantic game along the coast of Brazil. No sea but what is vexed by their fisheries, no climate that is not witness to their toils. Neither the perseverance of Holland, nor the activity of France, nor the dexterous and firm sagacity of English enterprise, ever carried this most perilous mode of hardy industry to the extent to which it has been pushed by this recent people--a people who are still, as it were, but in the gristle, and not yet hardened into the bone of manhood. When I contemplate those things, when I know that the Colonies in general owe little or nothing to any care of ours, and that they are not squeezed into this happy form by the constraints of watchful and suspicious governments, but that through a wise and salutary neglect a generous nature has been suffered to take her own way to perfection--when I reflect upon these effects, when I see how profitable they have been to us, I feel all the pride of power sink, and all presumption in the wisdom of human contrivance melt and die away within me." Since then our navigation has had the growth of a man arrived at full age, (twenty-one,) and become extended to an immense size; yet was it so unprotected that, in this year, the United States wanting to remit, out of some cargoes of sugar and coffee shipped on private account, money to pay the interest of their debts in Holland, they were under the necessity of asking passports for these cargoes of the French and British Ministers, to let this property pass in safety over the Atlantic; and I have seen it boasted in some of our papers, that orders were issued by the British Government to their Port Admirals to respect these passports thus given by their minister or agent here; so the United States left their own merchants to carry their sugar and coffee as they might, but obtained passes for ships, in the proceeds of whose sales they were interested. What a strange circumstance, this! The American Government sailing secure under passes--the private merchant exposed! But it is asked, if this Treaty be so unfavorable to commerce, why are the merchants so much in favor of it? They explain the reason themselves. They are influenced by the present rather than future interests. Five millions of spoliations they look to the Treaty to repay; their property afloat, they fear to be taken, and war they dread; but is there really weight in these arguments? I am as largely interested as any individual among them in shipping, and have suffered the loss of one of my cargoes at Bermuda, for which my underwriters have made me only a partial allowance; but I neither dread any war on the part of England, situated as she now is, nor expect any payment of my loss from the Treaty. To a nation to whom she offers bounties to carry her provisions, and who is so excellent a customer for her manufactures, she will not be easily induced to offer hostilities that shall go to the extent of war; and the Commissioners on Spoliations are to act in London merely as arbitrators of the law of nations, on whom our claim of spoliations is at best but a very uncertain dependence. The merchants in sundry parts of the United States having thought it so, have claimed the interference of Congress in advancing them the money, they rather doubted getting any where else. Considering, then, this Treaty as merely a bargain exhibiting little or no profit and much to lose, I separate it from all considerations foreign to itself. I judge it on its own merits, and these must lead me to vote for the proposition to suspend appropriations, especially in a moment when our seamen continue to be impressed and our ships to be taken. SATURDAY, April 16. _Execution of British Treaty._ The House then resolved itself into a Committee of the Whole on the state of the Union, and took up the resolution for carrying into effect the Treaty with Great Britain. Mr. NICHOLAS said, he was sorry to find gentlemen unwilling to go into a discussion of the merits of the Treaty, as he anticipated considerable benefits to the community from a fair investigation. He did not know, as had been said, that it could have no effect on the minds of members of the House, but he thought it necessary that the people should be enabled to form a just opinion of the merits of this compact, that neither opposition nor their attachment, should go beyond just bounds; that fair investigation was the most likely means of producing that calm in the public mind which he wished to see produced whenever Government had finally decided, and he would venture to say, there was no place which could be resorted to for more sound information. In considering the merits of the Treaty itself, Mr. N. said, he would consider the subjects which pressed themselves on the negotiator and demanded provision. These were chiefly the disputes arising under the Treaty of 1783, late depredations on our trade, and the settlement of contested principles to guard us against future misunderstandings. The cases arising under the Treaty of 1783, as heretofore contested, were negroes and other property carried away contrary to its stipulations; the territorial claim under it, and on the part of Great Britain, an interference in the recovery of private debts. Of the negroes, nothing is said in the present Treaty. It is to be expected in negotiations, that some concessions are to be made for the sake of accommodation, and this sacrifice of private interests becomes sometimes unavoidable. This claim was of considerable importance to a class of the citizens of the United States, but it was of still greater importance, as it justified the United States from the charge of breaking the Treaty of Peace. In this respect it was highly incumbent on the negotiator to procure satisfaction. It will not be contended that it should have been a _sine qua non_ in the negotiation, and it would not now be mentioned, if it was not necessary to a fair estimate of some of the stipulations of the Treaty, and if there had not been so uniform a surrender of the interests of the United States as to compel a calculation. It is now said, indeed, that the meaning of the Treaty of 1783 was mistaken, and that the engagement was only to refrain from carrying away negroes, &c., which should be found in possession of the inhabitants at the time peace should take place. It is not necessary now to go into a construction of the words of the article, as its meaning has certainly been fixed by the interpretation of the parties in the ten years which elapsed after it. In all that time the United States have asserted the claim, and it cannot be shown that Great Britain ever contested the construction of the article. It is said, that one of the Commissioners, (Mr. Adams,) who concluded the Treaty of 1783, in behalf of the United States, informed the Senate, in their deliberations on this Treaty, that it was the unquestionable meaning of the article, to save all negroes and other property then in the hands of the British; that the article was inserted after all other points had been settled at the instance of Mr. Laurens, who just then arrived from his confinement in London, and the reason assigned by him was, that many of the people of the United States would be disabled from complying with the part of the Treaty which respects debts unless this provision was made; that the same gentleman, who was afterwards Ambassador from the United States to the Court of London, also informed the Senate that, during his embassy, this construction of the article was never denied, and that it seemed to be understood by the Ministry, that, on a settlement with the United States, compensation must be made. This subject was fully investigated by the negotiator of the Treaty (Mr. Jay) while he was Secretary of Foreign Affairs; all the reasons which now arm the friends of the Treaty against this claim were examined by him, and then his decision was, that we were entitled to compensation. The reputed author of the best defence of the Treaty, (Mr. Hamilton,) in the year 1783, introduced a resolution into Congress, declaring that the negroes, &c., had been carried away by the British armies, contrary to the true intent and meaning of the Treaty. Mr. N. thought it too late to extort a meaning from a contract after it had existed more than ten years; and he did not doubt every candid mind would be satisfied by the acquiescence of Britain, and the evidence which he had produced of a perfect understanding between the two countries on the subject. If the new construction of the article could not be established, the first infraction of the Treaty of 1783 remained indisputable. Before the Treaty became binding, Great Britain, by carrying away the negroes, put it out of her power to execute the contract which she had made, while, on the part of the United States, no act had been done which was inconsistent with the Treaty, provided the acts of the States did not continue to operate after the ratifications were exchanged. Before he examined the cases provided for in this Treaty, it was necessary to remark, that the Treaty declares its intention to be to settle the disputes of the two countries without regard to former criminations, and all the writers in favor of the Treaty, declare that it was necessary to waive the first infraction of the former Treaty. This was a proper principle, and he only asked that it should have been pursued. This spirit of conciliation must have meant to put both parties on the same footing, either by agreeing that neither party had been the cause of the Treaty not being executed, or that both had been equally guilty. He would examine whether either of these concessions had been pursued. To obtain a surrender of the posts, and the territory withheld from us, we have sanctioned the subsequent alienations of land by the King of Great Britain. We have confirmed the claims of the inhabitants and dispensed with their allegiance, by permitting them to remain subjects of Great Britain; we have opened our frontier to all their citizens, and permitted them to retain a share of the Indian trade. Mr. N. did not pretend to judge of the commercial effect of the intercourse between the frontiers, but he apprehended that, in another respect, this concession would destroy the whole value of the acquisition. The traders would be enabled to maintain their accustomed influence over the Indians, and would have more inducements than when they had a monopoly of the trade to embroil them with the United States. Formerly, they were interested in their continuing in peace, as war prevented the acquisition of skins and furs; but when American traders shall embark in the trade, they will have an obvious interest in war as the certain means of banishing their rivals. It appears, then, that the Treaty of 1783, in this respect, is not revived--that there is a new contract with respect to the posts, and much less will be obtained than if that Treaty had been executed. When the claims of Great Britain, under the Treaty of 1783, became the subject of the present Treaty, the stipulations discover a different principle. The United States give up the claim for negroes, and agree to receive the posts on terms which greatly diminish their value; but, when the debts due from citizens of the United States to subjects of Great Britain are to be provided for, there is not a stipulation that they may now be pursued without hindrance, but there is an engagement, on the part of the United States, to pay all losses which have arisen from the infraction of the Treaty of Peace, so far as it respects them. On what ground could this assumption have been made? Why is this penalty imposed on the United States? There can be but one justification, and that is, that they had been guilty of the first infraction of the Treaty of Peace, and must make amends; but there was to be no concession of this kind, so that if damages were to be given at all, they should be given on both sides. It seems clear, then, whatever pretences are made by the Treaty or its advocates, that the first infraction of the Treaty of Peace is fixed on the United States, and that they are to make compensation for an injury. Where does the conciliating temper of Great Britain manifest itself? Had she a claim under the Treaty of 1783, which is forgotten? Does she not receive every thing which she could have demanded in relation to that Treaty? The United States are to indemnify her citizens completely for the non-execution at the time, and are to receive less than was promised them without the least compensation for the delay. But it is somewhere said, that the damages could not be demanded for withholding the posts, because they could not be computed. It will be agreed by those who press the acceptance of this Treaty in order to obtain the posts, that they are important to the United States. If of the consequence which they are represented to be, twelve years dispossession must have been a real injury, and the claim on Great Britain will be indisputable, although the amount may not be certain. This might be a good pretext for evading a payment to the United States, if this claim stood unconnected with any other; but it must be considered as a very shameless suggestion to enforce the payment of damages incurred by them. It is certainly a sufficient justification for retaining what is in their hands until Great Britain shall offer something on this account; otherwise she will be screened by her cunning in causing the subject of injury. Again, it has been said that this inequality in the Treaty was proper, because the right to recover debts returned with the peace, and did not depend merely on the Treaty. It is to be remembered, that the United States justify it as a retaliation for breach on the part of Great Britain, and that, in forming this Treaty, it was agreed to waive the right to retaliate: or, rather, the question, who first infringed the Treaty. It is only to be inquired, then, whether this was a proper subject of retaliation? and if it was, the United States ought to escape all penalty for using it, or Great Britain must be equally subject to compensation for her infractions. (For this, see _Marten's_ Law of Nations, page 268, where it is said that it matters not, in this respect, whether rights are innate, or whether they have been acquired by express or tacit covenant, or otherwise.) Another class of claims which may fall on the United States is still more alarming--those for war-interest. The Treaty has explicitly authorized the commissioners to judge of all claims of British subjects lost by legal impediments, whether of principal or interest, and they are to determine according to justice, equity, and the law of nations. In the correspondence on this subject between the two Governments, the right has been asserted and denied; and it will depend on the commissioners to say whether war-interest is due or not; and it being to be supposed that the commissioners will advocate the principles of their respective Governments, the United States are to depend on the chance election of the fifth commissioner for safety. If it shall be determined that it is due, the mischief will be insufferable. It will not merely be recovered in those cases where the principal is unpaid, nor will it be confined to those cases where it has been lost by actual judgment of a court, but will extend to all cases of private settlement, where the decision of the Judiciary of the State had previously settled the principle. It appears, then, that on the subject of the disputes arising under the Treaty of 1783, there is no cause for congratulation. The claims for negroes carried off are abandoned; the posts are to be delivered up, on terms not unusual and dishonorable, but extremely dangerous to the future peace of the United States, and to obtain them in this manner we incur an obligation to pay a sum which probably will not fall short of five millions of dollars, and which may possibly amount to fifteen millions. When it is remembered that these claims commenced with our independence, and that they were the concessions to our infant struggles, what American is there who will not feel the disgrace to our manhood in abandoning them? All must blush at a comparison of the Treaty we obtained with our arms, with that which has been dictated by fear. The next subject which claimed the attention of a negotiator was the injury recently sustained in the commerce of the United States; and on this subject it will be proper to review the circumstances in which the negotiator left this country. The losses sustained had been considered here as outrages of so serious a nature that all parties had concurred in demanding reparation; some had attempted at once to use coercion, and those who approved the mission declared that war must follow a failure. In this situation, where the sense of Government and people was decided, and where the injury was not only intolerable in itself but was likely to be repeated, it seems astonishing that a man could be found who would conclude a Treaty which gives to the United States no compensation, but more astonishing that partisans could be found here who approved his conduct. It may be asserted that no compensation is secured by the Treaty, and that under its operation it is equally probable that none will be received. See the article. It has been doubted, and is, perhaps, very doubtful, whether the Courts of Great Britain are not made the judges of irregular and illegal captures and condemnations, and whether the orders of the King are not admitted as good cause of seizure; but it never has been contended that compensation is promised in any particular case, or that any principles are established by the Treaty which are to govern the commissioners. In the construction of their powers, insisted on by the advocates of the Treaty, their guides are justice, equity, and the laws of nations. Nobody can complain of these principles, if their fair operation was secured; but a moment's attention will show that this was nothing but an evasion of the subject. It will not be understood that I suppose it was in Mr. Jay's power to make his own terms, but I complain of his treating at all on the terms he did. It is said that it was not in his power to extort what he wished, but I complain that he yielded to the extortion of Great Britain. What has he left her to ask, what has he not surrendered? While professing, as the Treaty does, that there were important points of our commerce left for future negotiation, why bind us to continue to Great Britain the fullest share of our commercial privileges? If the Treaty had been the most complete and satisfactory, would it not be necessary to leave something to enforce its execution? What weapons have we which can reach her? The Treaty makes war indispensable, as the only redress of injuries, and how will war from the United States reach Great Britain? It was certainly improper to give up all power of restricting her commerce until the same instrument contained the fullest satisfaction as to our own. It was improper to give up all the power of seizing on the debts of her subjects, for this, when the power of restricting her commerce was bartered for equal privileges, would be the only means of maintaining respect. It is not necessary that weapons of any sort should be used, but it is more dangerous to surrender them. I am no friend to interference in private contracts, and I can truly say, I never was willing to resort to this remedy till all others had been tried; but if there was an impossibility of doing it, the want of the power would immediately be felt. The impolicy and immorality of sequestration have been dwelt on. Contrast it with war, for which it is a substitute, and it will be found in both respects unequal to it. All national remedies are attended with great mischiefs to those who use them, and they must be adopted only on comparison in this respect, and with regard to their effects on the enemy. In this last respect there seems to be no choice to the United States; they have no other weapon that can reach Great Britain, and I greatly fear that, when this is lost, we are completely disarmed. MONDAY, April 18. _Treaty with Great Britain._ The House then resolved itself into a Committee of the Whole on the state of the Union; when the resolution for carrying the British Treaty into effect being under consideration-- Mr. GILES said it was much to be regretted that all the information which could throw light upon the subject of discussion should not be before the committee. A sense of responsibility arising from the peculiarly delicate nature of the question had induced the House to take every step with more than a common degree of caution. Before they proceeded to deliberate upon the expediency or inexpediency of providing for carrying the Treaty into effect, they made a request to the PRESIDENT for the papers which attended the negotiation. This request has been refused; not because the call itself contained any thing unconstitutional; not because the contents of the papers called for were of such a nature as to render the disclosure thereof at this time improper. Neither of these causes being intimated in the Message, but because principles were advocated by individual gentlemen in the course of the argument inducing the call which the PRESIDENT thought not warranted by the constitution. Mr. G. said, he did not propose to animadvert upon the conduct of the Executive in departing from the resolution itself, and in noticing the arguments of individual members, nor upon any other part of the proceedings of the Executive relative to the call of the House and his refusal. He only meant to remark, that being perfectly convinced of the propriety of the call itself, of the utility of the information embraced by it, and not being satisfied by the arguments of the PRESIDENT of the propriety of withholding the papers called for, he should have been willing to have suspended all further proceeding respecting the provision for the Treaty, until the papers should be laid before the House. He would have firmly placed himself on that ground, and in that position hazarded his responsibility. The extreme sensibility excited on the public mind by the agitation of the Treaty question, he had supposed, would have furnished an irresistible argument in favor of complying with the request of the House, provided no inconvenience would have attended the disclosure; and in his opinion, under all the circumstances of the case, the House would have been completely justified in suspending all further proceeding upon the question of providing for the Treaty, until they received that information which they deemed necessary to guide their deliberations. But as the House had thought proper to take a different course, and had proceeded to the consideration of the question, with such lights as they possessed, he would explain the motives which would probably finally influence his vote. Mr. G. said he should discuss the subject in two points of view. He would first examine the contents of the Treaty itself, and then the probable consequences of refusing or of giving it efficacy. In examining the contents of the instrument itself, he proposed to go through it article by article, unless the task prescribed to himself should exceed the bounds usually allowed to members for the delivery of their sentiments. He should do this, because he wished to treat the subject with the utmost candor, and to avoid any possible imputation of intending to exhibit the bad and avoid the good parts of the Treaty, if any such there were. He meant, however, to state merely the purport of many of the articles, without any animadversion, and to dwell only upon such as appeared to him the most material. The first object of the negotiation respected the inexecution of the Treaty of Peace. On the part of Great Britain, two articles had been unexecuted: The restoration of certain property in possession of the British at the close of the war, and the surrender of the Western posts. On the part of the United States, one article was suggested to remain unfulfilled; it respected the promise that no legal impediment should be thrown in the way to the recovery of debts due to British subjects. The claim of compensation for the property carried away in contravention of the Treaty of Peace is wholly abandoned, and the value of the surrender of the posts very much lessened by the annexation of conditions which made no part of the stipulations of surrender in the Treaty of Peace. The United States are more than bound to fulfil the article heretofore unfulfilled by them; for instead of continuing the courts open for the recovery of debts in the usual way, as was the promise in the Treaty of Peace, they are made to assume the payment of all debts, interests, and damages in cases of insolvencies, and a mode of adjustment is proposed for ascertaining the amount which furnishes the greatest latitude for frauds against the United States which could be devised. This will appear in the future examination of the subject. Hence it is obvious that the stipulations of the Treaty abandoned the very principle of adjustment assumed by a gentleman from Connecticut (Mr. SWIFT.) Mr. G. would first premise, that if the article did not intend the restoration of property mentioned in it, the insertion of it in the Treaty was not only unnecessary, but mischievous, as it would necessarily produce embarrassment to the parties to the instrument. The British army, at the termination of the war, was at New York; the negroes, which constituted the species of property in question, were in the Southern States; so that if the article did not include that species of property taken in the course of the war, and in the possession of the British at the end of it, it was worse than nonsense. It never could have been supposed that, upon the first dawn of peace, the British would have left New York and invaded the Southern country, for the purpose of plundering the inhabitants of their negroes. The peace article itself was a sufficient security against this conduct, and of course no specific provision could have been necessary for that purpose. This was not only the uniform construction of the article by the United States, but, as he always understood and believed, Great Britain had acquiesced in the construction until the negotiation of the present Treaty. As an evidence of these facts, Mr. G. observed, that American commissioners were permitted to make a list of the negroes in the possession of the British at the close of the war by the British commander; that the list was entered upon the files of Congress; that there were resolutions of Congress claiming compensation for the property carried away in contravention of that article in the Treaty of Peace, perhaps without even the intimation of a doubt as to the construction; that, during the administration of Lord Caermarthen, he had always understood that the claim of compensation for property carried away, was admitted, whenever British subjects were indemnified for the debts due to them from citizens of the United States. But here he had to regret the want of the papers called for by this House, as they contained all the evidence upon which this important fact depends. Hence it appears that Great Britain herself had yielded her assent to this construction, and ought not to have been permitted to have withdrawn it afterwards. These circumstances seemed to him to be conclusive, and ingenuity itself would pause for arguments against facts so stubborn and irresistible. Mr. G. then proceeded to the examination of the articles of the Treaty. The first article, he said, was declaratory of peace, &c., between the two countries, which, he said, was a very desirable thing, provided it could be established upon principles compatible with the national honor and the national interests. The second and third articles contained the stipulations for the surrender of the Western posts, and the conditions accompanying the surrender. The surrender of the Western posts, he said, would be an extremely desirable object, if conformable with the Treaty of Peace, and it were unattended with any conditions. Here, he said, he was desirous of giving credit to every part of the instrument which would admit of it, and was not disposed to exaggerate its imperfections. He was willing to admit that the surrender of the posts, even with the conditions annexed, was of some importance; but he would assert that the surrender lost a great portion of its value to the United States, in consequence of the conditions attached to it. He observed, two objects of primary importance were to be effected by the unqualified surrender of the posts. The one was to obtain the influence over the Indians in their neighborhood, which the British now possessed. The other, the participation, at least, in the fur trade carried on with those Indians. The conditions accompanying the surrender, will, in his opinion, very much impede the one, and completely defeat the other object. The stipulation in the second article, which authorizes British subjects who are now living within the precincts or jurisdiction of the posts, still to continue and to reside there, with the free use of their property; and to elect either to remain British subjects or to become American citizens at pleasure, will, in his opinion, very much impede, if not wholly obstruct, the salutary influence of the United States over the numerous tribes of Indians in that quarter; which is one great object hoped for from the possession of those posts. The effects of the stipulation will appear more obvious, when it is compared with the stipulations in the next article, by which the trade with the Indians is regulated. The second object, to wit, the participation in the fur trade, he believed, would be completely defeated by the regulation of that trade in the third article; that article stipulates an equality of duties between American citizens and British subjects, a free communication through that country, upon an equality of portages and ferriages. These conditions, in his opinion, would secure a complete monopoly of the fur trade to Great Britain; because the superiority of the British capital employed in that trade, and the inferiority of duties paid upon goods imported for that trade into Canada, would, in his judgment, wholly exclude American citizens from a participation in that trade, through any channel in the United States. The United States had no mode left to counteract this monopoly but by a system of drawbacks, which appeared to him, from the nature and trade of the country, to be almost impracticable; or if not absolutely impracticable, it would compel us to purchase the trade at a price greater than it was worth. It appeared to him that Great Britain had foreseen these consequences, and that these articles are as well calculated to produce them, and to obstruct the views of the United States, as sagacity itself could have devised. Hence it appears to him that the value of an unqualified surrender of the posts is very much lessened by the accompanying conditions. The gentleman from Connecticut observed, that the surrender of the posts was absolute, and that no conditions were annexed to it. It is a sufficient answer to say that his observation is a mere criticism upon terms. If they be not conditions of the surrender, they are accompanying engagements, and are to be executed with good faith by the United States. The sixth article was, in his judgment, highly objectionable. This article assumes the payment of all debts, interests, and damages, due from American citizens to British subjects, previous to the Revolution, in all cases where insolvencies have ensued, and where legal impediments to the recovery of the debts have existed. He would remark, that this was an assumption of debt by the public, which they did not owe, and never promised to pay, and that it is bettering the condition of the British creditor under the Treaty of Peace, without any obligation on the United States to do so. He said that, as, amongst the fashionable calumnies of the day, this article had been a fertile source of misrepresentation against the State he had the honor to represent, he was anxious to place this subject in its true light; and, as he professed to be well acquainted with it, he hoped to be indulged with some minutiæ of explanation. He said, this subject presented two aspects to the public; the one, as it respected States, the other, as it respected individuals of the United States. As to the first, he admitted that if a greater proportion of debts of this description were due from Virginia than from other States, which had not, however, been ascertained, and which he doubted, in the same proportion, as a State, Virginia would receive an advantage over the rest of the States, by a common assumption of the debts; but as it respected the individuals in that State who were not debtors, they stood precisely on the same footing with individuals in other States, because they were, in common with others, to contribute to the payment of debts which they never owed. It is of very little consolation to them that they live in the neighborhood of those whose debts they are to contribute to pay; for propinquity or distance can make no difference in the state of interest between the individuals who do not owe, but who are to contribute to pay. As a very small proportion of the inhabitants of Virginia come under this description of debtors, the phenomenon of an opposition of that State, to this particular article, is thus explained. It is to be remarked, that this article contains no limits as to the amount of debts assumed by it, nor are there any precise data furnished for calculation. But it has been said, that if the debts be due, they ought to be paid, be the amount what it may. He said, that gentlemen should reflect, that the amount would depend very much upon the mode of adjustment, and that the mode adopted by the Treaty was the most objectionable that could be devised. He observed, that the principle established for the adjustment of the debts, instead of preserving the conflicting interests of debtor and creditor, would produce a complete union of interests; and of course would furnish the greatest temptations to frauds against the United States from both debtor and creditor. Hence the amount of debts assumed by the United States would probably be greatly increased beyond what would be the amount, if the debtor and creditor should be left to the ordinary course of judicial proceedings to adjust their own differences, under the principle of opposing interests. To entitle the creditor to a claim upon the United States, it is necessary for him first to establish his demand against his debtor, and then to show that his debtor was solvent at the commencement of the late war, and has since become insolvent; and that some legal impediment had intervened to prevent the recovery of the debt. Hence it becomes the interest of both debtor and creditor to establish these facts, because the debtor will be relieved from his debt, by the assumption of the United States, and the claim of the creditor will be transferred from the individual to the United States, which he would, in all cases, prefer, particularly as the assistance of the debtor will often become necessary to facilitate the establishment of the debt. This, he said, was the natural operation of the union of interest produced by the assumption of the debts by the United States, and there was more danger to be apprehended from it, from the impossibility of checking it, by any vigilance on the part of the United States, and from the peculiar circumstances attending those debts. The greatest proportion of debts remaining unpaid, he believed, stood upon open accounts. In many cases, when the debts were evidenced by specialties, payments had been obtained, either by the usual course of judicial process, or by compromise between the parties. There were two circumstances attending the open accounts which would give great scope to the fraudulent combinations between the debtor and creditor. The one respected the evidence, the other the substantial causes of difference in the accounts of the creditor and debtor. In the reign of George II. an act was passed for the more easy recovery of debts due to His Majesty's subjects from His Majesty's plantations in America. This act authorized the merchant in Great Britain to establish his debt against a colonist by affidavits taken before the commencement of the suit, and authenticated in the usual mode. This deprived the defendant of all opportunity of cross-examination, so essential to the discovery of truth, and the jury of all knowledge of the character and credibility of the deponent. In Virginia, the affidavits taken in pursuance of this act, have been deemed incompetent to the establishment of the debt, because the act itself destroys the very nature and properties of evidence. Hence, in all disputed claims founded upon this act, judgments have been rendered for the defendants. If this should be deemed a legal impediment to the recovery, this whole description of debts would probably come under the description of debts assumed. He observed, that the words used in the Treaty were calculated, in his opinion, with a view to this construction, and must have been dictated by persons better informed of the nature of this business than he presumed the Envoy Extraordinary of the United States could have been. The other circumstances arose from the nature of the remittances. These were generally made in tobacco. The sales of this article were intrusted solely to the merchant residing in Great Britain, and the American shipper had no check whatever upon the merchant making the sale. Upon tendering these accounts, the tobacco is often set down at a price very inferior to the average price of that article in Europe, at the time of making the sale. A great number of controversies have taken place upon this ground, which remain unsettled; but, if the United States should assume the debts of the individuals thus circumstanced, they would have no inducement to contest these accounts in a course of judicial proceedings, and the promise of exoneration from the creditor, will often induce the debtor to facilitate the establishment of the claims against the United States. He said he had not overlooked the clause in this article of the Treaty, which compels an assignment of the claim from the creditor to the United States, but that would have little or no operation to check the practice invited by this article, because the debtor is presumed to be insolvent before the assignment is made, and he believed the United States would be but unsuccessful collectors from insolvent debtors. From these circumstances, he concluded, that this assumption of debt, without any obligation for so doing, was extremely improper, particularly when it is recollected that this article sweeps away all acts of limitation, and relates to the whole extensive scene of business carried on in the United States, from the extremes of New Hampshire to the extremes of Georgia, for an unlimited time before the Revolution. He observed, if he were to make a conjecture as to the amount, it would be a loose one; but if he were to choose between indemnification to the American merchants for recent spoliations committed upon their commerce, or the payment of these debts, he should not hesitate to prefer the first alternative; because, to that there were known limits; to the other there were not, nor any data for calculation under the mode of adjustment prescribed by the Treaty. He, therefore, cautioned gentlemen against the assumption of this unascertained debt, for he believed it would be attended with a responsibility which they could not answer to their constituents, nor would the responsibility be alleviated by the recollection of the merits of the individuals for whose benefit it is made. The increase of the debt of the United States by these artificial means, without any obligation to do so, he thought highly objectionable. The 10th article, he said, was of a very extraordinary complexion. It was remarkable, both as to the matter it contained, and the manner in which it was expressed. It is in the following words: "Neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys which they may have in the public funds, or in the public or private banks, shall ever in any event of war, or national differences, be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals having confidence in each other and in their respective Governments, should ever be destroyed or impaired by national authority on account of the national differences and discontents." Mr. G. remarked, that this article also had assumed the resemblance of reciprocity; but no reciprocity in fact. British subjects have great sums, both in public and private funds, in the United States. American citizens have little or no property in public or private funds in Great Britain. Hence the evident and substantial inequality of this reciprocal stipulation. On the other hand, American citizens have a great share of property on the water, with very little naval protection, and of course subject to the naval superiority of Great Britain. If, therefore, Great Britain had stipulated, in case of war, that in consideration of a refusal on the part of the United States, to sequestrate property of British subjects upon land, she would not molest the property of American citizens upon water, there would then have been a substantial, instead of a nominal reciprocity; as the article now stands there is an important right conceded, and no compensation obtained. This article, however, has been highly applauded by a particular description of persons interested in it, in consequence of the affectation of morality professed by it. It has been said to be dishonest and immoral to take the property of individuals for the purpose of compensating national wrongs. He observed, that he could see no difference between the morality of taking the property of individuals upon water, and the property of individuals upon land. The difference of the element could make no difference in the morality of the act. However strongly, therefore, this moral impulse was operating upon the American Envoy whilst engaged in the construction of this article, it had entirely dissipated before he had arrived at the 25th article; for, in that article, the principle of privateering is not only admitted, but its operation facilitated; so that, unless the interest of Great Britain is to be the criterion of the Envoy's morality, what he has gained by the morality of the 10th article must be at least balanced by the immorality of the 25th. But, Mr. G. remarked, that sequestration was always admitted as part of the law of nations, and hence he presumed it was not immoral under certain circumstances. He said it appeared to be the opinion of some, that where the property of an individual was sequestered on account of the act of his nation, that the individual was to sustain the loss, but that was not the case. The sequestration itself imposes upon the government, to which the individual belongs, an obligation of reimbursement. Hence the sequestration does not ultimately rest upon the individual, but upon the Government, for whose wrong the property was taken. This is also conformable to the laws of nations. It was the course pursued by Great Britain for all sequestrations made during the American war, and is the course which would be pursued by all nations. Mr. G. said, that war itself was immoral in most cases; and justified, in his opinion, only in the case of self-defence; but if a stipulation had been inserted in this Treaty, which prohibited the United States from declaring war, it would have been justly and universally reprobated. The present article prohibits the United States from resorting to the best means not only of preventing war, but the most efficacious means of supporting it. Hence, the surrender of the right was the most impolitic concession, and is infinitely aggravated by its being a voluntary concession; no equivalent being received in return. Mr. G. said, it was dishonorable to the United States because it evidenced a want of confidence in the discretion of the constituted authorities. The right of sequestration is admitted to be essential to national sovereignty; but, lest it should be indiscreetly used by the United States, its guardianship is transferred to Great Britain. Mr. G. said, he viewed sequestration as an extraordinary remedy, to be resorted to only on extraordinary occasions. And although he would admit that but few cases would justify a resort to it, yet it was one of our best instruments of defence, considering our relationship to Great Britain, and ought not therefore to have been surrendered. He said, too, that this restraint was imposed upon the United States for an unlimited time, and was the more objectionable, as it was a species of legislation against the discretion of legislation. Upon the whole, he conscientiously believed the Treaty to be a bad one. He believed it contained the most complete evidence of British interference in our internal affairs, and had laid the foundation for the further extension of British influence. It has restricted the exercise of some of the important rights of national sovereignty. It has voluntarily hazarded the neutrality of the United States in the present European war, and destroyed all pretensions to its character of impartiality. It has not afforded protection to our neutral rights, which was amongst its great objects; and in the adjustment of the differences resulting from the inexecution of the Treaty of Peace, it is unequal and unjust. All these important circumstances considered, and when it is also considered that the British persevere in impressing our seamen and seizing our vessels, in violation of the clearest rights of neutral nations, even since the signing of the Treaty, he could not consent to be the instrument of giving it efficacy. He believed that it was one of those extraordinary cases which justified strong and extraordinary resistance. When Mr. GILES had concluded his speech, Mr. GOODHUE addressed the Chair as follows: Mr. Chairman: Much noise has been made, and every art has been practised to prejudice the people against the Treaty now under consideration. I mean to look at it and see if it be the horrid thing it is represented to be, and particularly to examine the commercial part, to know whether we have made a good bargain or not, I will take notice of some objections that have been made, and then touch on the great evils that may justly be apprehended, if we refuse to carry it into effect. And here let me observe, the subject is the most momentous that ever came before this House, and I mean to put no false colors on it, or to paint any evils that will follow a rejection, beyond what, in such an event, I most conscientiously believe will be realized. I will now state what new sources of commerce are opened to us by the Treaty that we had not before, and then see what we have given for them. 1st. We have got by the Treaty a perfectly free trade across the land, and by means of the lakes with Canada, that we had not before, and on the same terms with British subjects, which I estimate as a great advantage to this country; for it is evident, that we can introduce into Canada--up the North river and across the Lakes--almost any kind of goods, at less expense and on better terms than the British can up the river St. Lawrence, which is very lengthy, and frozen up six or seven months in the year. Having this advantage, can it be doubted that we have not industry and enterprise to improve it? No, sir, the enterprise of our people is such, that we shall unquestionably carry on almost all the trade of Upper Canada, and that great Western country which will be opened to us; by which means we shall have at least an equal share in their fur trade also with them, which we have so long wanted. But it is said, the portages or carrying places being common to both, they will run away with the greater part of the trade. Why so? I am not afraid but the citizens of the United States, if they are put on an equal footing with others, will make their way equal with any people on earth. But it is said, by way of lessening the advantages of this trade, that goods imported into Canada pay little or no duty, and the goods that we import are by our laws subject to high duty, and that no drawback of the duty can be established upon their being sent into Canada, and therefore, we cannot supply them on equal terms. To this, I reply, that I do not know what duty they impose on goods when imported into Canada, but I believe it is considerable; and I do not believe but it is possible to devise a plan for a drawback of the duty which may have been paid on our goods when they are sent into Canada, and that at any rate the ease by which we can send them there up the North river, compared with their being introduced by the St. Lawrence, will more than compensate for any difference of duty, in case a drawback should not be admitted. 2. We have got established by the Treaty, a right to trade with all their settlements in India on the same terms with their own subjects, and thus we have laid open to us a free trade with those vast possessions of theirs in that quarter of the globe, which, it is said, contains twenty or thirty millions of inhabitants. Let me inform the committee, that our trade to India is already very great and profitable. In the town of Salem only, in which I live, we have thirty sail of Indiamen, and doubtless, in the United States, the whole amount must be nearly a hundred; and the number will increase in such a manner, as by our superior enterprise, industry and economy, that we shall not only supply our own wants, but those of the West Indies and Europe, in a great measure, with India articles; for though, by the Treaty which gives us this free trade, we are not permitted to carry India goods from their settlements directly to Europe, yet there is no doubt, in my mind, but we can export from hence thither cheaper than they can get them any other way, for this obvious reason, because their trade to India is carried on by their companies, in which despatch and economy is by no means so much attended to, as it is when managed by an individual. But it is said we had this trade before the Treaty. I answer, it is true we had, but it was only by way of indulgence, subject to be deprived of it whenever they thought fit; and let me ask, is it not vastly better to have it secured as a right, than to have it rest on the precarious tenure of indulgence? Here, Mr. Chairman, let me remark, that they have granted to us this free trade to India, which their own subjects (except the India Company) are entirely shut out from. What must be the feelings of British subjects when they see their Government has given to strangers a perfect freedom of trade to their India settlements, and shut them out from it altogether? And what must be their astonishment when they hear that some people amongst us think that Great Britain has conferred no favor upon us by doing it? Hear what the famous Mr. Grattan, the great Irish patriot, said in the Irish Parliament, on the subject: "This very America, which the British Minister insulted and then crouched to, had, by the late Treaty of Commerce, been admitted to all the British settlements in the East and West Indies, to the latter of which Ireland was only conditionally admitted, and from the former unconditionally excluded; yet Ireland was a loyal, attached nation, and America an alien." These are the commercial acquisitions we have obtained by the Treaty; and let me ask, what have we given to Britain in return for them? I answer, nothing more than they have all along enjoyed in our ports, by the laws of the United States, in common with other foreign nations. No new commercial advantages have we given them; they can come here now on no better terms than before. But, it is said, we have tied our hands by the Treaty, that we will not lay any greater duties on their commerce than we do on all other foreign nations. Pray, let me ask, if Great Britain have not equally tied their hands? And can we be so unreasonable as to suppose that they would ever consent to a Treaty that had not such terms of reciprocity? It is again said, by way of objection, that they have reserved to themselves the right of countervailing the difference of duty, which we, by our laws, have established between our own citizens and foreigners, and that she will now exercise that right by imposing equal duties on our vessels in the ports of Great Britain. Let me answer this objection to the Treaty, by asking if she had not this same right, and even an unlimited one, of imposing what duties she saw proper on our vessels in her ports before the Treaty? She did not see fit to exercise it then, neither is it probable she will now. And, lest it should be said she will now do it, because we are restrained by the Treaty from increasing the duty on her ships beyond what it now is, and, therefore, she has not the same fear operating to prevent it that she had before, let me remark, that if she was restrained by any such considerations, this same restraint would be in force again in two years after the present war ceased, being the period of the existence of those articles of the Treaty--a time so short as to render it highly probable she will not think it worth while to make the experiment. A great cry has been made against the commercial part of the Treaty, and I must confess I never could see on what ground, for it is a certain fact we have given Great Britain no new privileges in our Atlantic ports by the Treaty, and no other in their intercourse by the way of Canada, than they have given us; and, therefore, it may fairly be said that, by the Treaty, we have given them no new commercial privileges they were not before enjoying in our ports; and they, on their part, have given us considerable; and consequently, on our side, the bargain must be a good one. Let me ask, why there is for ever so much complaint against Great Britain because she does not open all her colonies freely to us? Does Portugal open the Brazils? No; she shuts out all foreigners. Did Holland, before the present war, open to us all her rich possessions in the East Indies? No. Does Spain open her rich islands in the East and West Indies, and her immense possessions in South America? No. Does she, in the Treaty lately made, open even Florida, as Great Britain has Canada? No. Did France before this war give us free trade to her colonies? No. And do not all those nations, as well as every other, come into our ports on the same terms with the British? Why, then, make this rant about the British? Let them fare as well in our ports as other foreigners, inasmuch as they certainly grant as much to us as most others do, is all I contend for. I do not wish they should fare better. The impressment of our seamen by the British is made use of as an objection to our carrying the Treaty into effect. It is, to be sure, a mortifying circumstance, and must excite our utmost detestation of such conduct. But let not our passions get the better of our judgment. We have no kind of evidence that such conduct is countenanced by their Admiralty, but the evidence we have is of a contrary nature, for, upon our Minister's remonstrating to the British Ministry on this point, they assured him that orders had been issued, and should be repeated to the commanders of their ships, not to commit such violences on our rights, at the same time observing, that, speaking the same language as we do, it was difficult in all cases to distinguish their seamen from ours. In this situation let us believe that a firm and spirited remonstrance will be made by our Executive against such outrages; and let us hope that it may have the desired effect. But, let me ask, if the Treaty should not be carried into effect, will that relieve that deserving class of our citizens? Will it not have probably a contrary effect, and be the means of increasing the evil tenfold more than it exists at present? TUESDAY, April 19. _Execution of British Treaty._ The House then resolved itself into a Committee of the Whole on the state of the Union, on the motion for making provision for carrying into effect the Treaty with Great Britain; when Mr. HEATH rose and addressed the Chair as follows: Mr. Chairman: In the discussion of this so momentous and important a subject, and so big at the same time with the dearest interests of our common country, I shall not attempt any critical analysis upon the good and bad parts of the instrument, as the gentlemen preceding me in this debate have already done, but only confine myself to a few remarks, to justify my conduct to God and my country for the vote I shall give in the ultimate decision of the question. Mr. Chairman, permit me here to remark, that during the recess of the last Congress, when the American mind was roused with so much irritation and sensibility through all parts of the Union against this paper, after its first appearance in public print, I was one of those who kept aloof from the storm, suspended my opinion, became of no party, considering myself hereafter bound to discharge the important duties of an American Representative on the occasion. And now since the commencement of the present session, though two-thirds of my time overwhelmed with disease, and daily languishing in the bed of pain, even under such a dreadful personal calamity, my reflections were not turned aside from the awfulness of the subject before us; which before and during this discussion, I confess, as often as I have revolved in my mind, with a review of the situation of my country, I have frequently paused, not knowing the best expedient to pursue to avoid impending evils. Mr. Chairman, I have strange forebodings on this occasion. By the second and third articles of the instrument before you, in the surrender of the posts, British subjects have a right to reside with us; Indians have a right to pass and repass from post to post from our district to their portages and ferriages free, all in the vicinity within gun-shot. Will not their traders continue their old acquaintanceship with them in spite of us? Are not their capitals for trade larger than ours? Where, then, are the real profits anticipated? All visionary, like the beggar's dream, grasping mountains of gold, and when the morning sun shakes off his slumber, it dissipates the delusion. But time will make more converts than reason. Further, before I quit this subject of inequality, I wish to remark, by way of reply to my much respected friend from Connecticut, who was up a few days ago, in language nearly similar, and the same sort of ingenuity of a celebrated champion, who has dedicated much labor in favor of this instrument, under the signature of _Camillus_, that Great Britain had never violated the seventh article of the Treaty of Peace in not restoring the slaves and other property; that they were taken in war, and their freedom offered to them by the British commanders, and were not taken after a cessation of hostilities; and, therefore, were not proper objects of surrender. Oh, the deceit, the sophistry of this construction! I shall just answer it by reading from the Journals of the old Congress what the real _Camillus_, or, in other words, the learned Mr. HAMILTON, thought of that article at that time. He read the Journals of 1783, where Mr. HAMILTON moved in Congress for commissioners to be sent to New York to the British commander to request an explanation respecting an infraction of that article. So was Mr. HAMILTON's opinion at that time, so was the prevalent opinion of all America at that time. My second point, the want of reciprocity in the instrument, has been so well explained by my worthy colleague from Virginia, that I confess I am curtailed in my sentiments a little here. But, suffice it to say, that the local circumstances of this country will make the suspension of the law of alienage more advantageous by tenfold, than could be reaped by American citizens over the other side of the water. Witness the great disproportion between American citizens holding lands in Britain and British subjects in this country. I wish it may not revive old proprietary rights, with its long train of tenure, fealty, and vassalage. Perhaps my fears may ensue from residing in that of Virginia, where this tenure once prevailed. I now come to the third objection, and the most important. Other objections, though they have their weight in my mind, yet perhaps they might yield their force, were it not for this the more insurmountable. This might be said with propriety to be the foundation of the call for papers from the Executive respecting the Treaty. By the various articles embracing this subject, the House of Representatives of the United States, in the Treaty-making power, have lived to see the day, which I am sure no human sagacity could have ever divined, that they may be considered as a perfect collective cypherical body of men in legislation, reduced to a mere Committee of Ways and Means, subservient to Executive policy, just called together, for voting the necessary supplies of money for foreign negotiation, or for the current annual expenses of Government. America is here totally disarmed of every alternative to resort to in the hour of distress--to prevent the horrors of war, no sequestration, no embargo, no commercial restriction, can be the subject of future legislation against the tender and humane people of Britain. Is this right, is this just, that all our rights should be thus bartered away under a Treaty-making power? If it is so, and it must be borne, dreadful, dreadful, indeed, must be the calamity of future generations of America, under the operation of this Government; for any one of them, or all together, I would resort to an awful national crisis, sooner than sound the trumpet of war, and let the banners of blood loose upon the earth. Mr. WILLIAMS said, that various opinions had been delivered upon the various subjects involved in the Treaty. He should take the liberty of stating to the committee his sentiments on the occasion, and then inquire into the policy or impolicy of carrying the Treaty into effect. But, in the first place, he conceived it to be necessary to take a view of its origin, the division, and party dissensions which then prevailed--the critical posture of our affairs, the depredations committed on our commerce, and the probability of a war. Let us, said Mr. W., take a view of the debates of that House in the year 1793 and 1794, and he believed it would be discovered that if the business of negotiation had not taken place, this country must have been involved in a war. It would be remembered, that a gentleman from Virginia, (Mr. MADISON,) on the 3d of January, 1794, laid on the table of this House seven resolutions. The object of which was to compel Britain to come to some terms of accommodation, and to prevent further depredations on our commerce. After a discussion of several weeks, the first resolution, which was for imposing an additional duty on the importation of a great variety of manufactures from nations having no Commercial Treaty with the United States was agreed to by a small majority. Britain had, said he, ever since the end of the war, declined entering into any Commercial Treaty with us. In the mean time, the danger from British depredations augmented with such rapidity that those resolutions became insufficient, by reason of the seizure of an immense number of our vessels, in consequence of instructions that had been given by the British Ministry on the 6th of November, 1793; and other resolutions were then moved for the sequestration of British property, but the result was an embargo and negotiation. Was it not then urged by members of that House that the British nation refused to negotiate with them? It was, indeed, supposed it would be attended with considerable difficulties, and that a considerable class of citizens, let the consequences be what they might, would not be satisfied with the result. However, it was thought best to adopt the measure. But, said Mr. W., let us waive this subject, and inquire if negotiation had failed, whether war would not have been the consequence? Can it be supposed that, after the British had committed certain spoliations on our commerce; after their Order of the 6th of November, 1793; after the declaration of Lord Dorchester to the Indians, that war would not have followed? The national pride of Great Britain could not have yielded to compulsion without self-degradation; and it would be remembered, too, that from the relation in which the two countries have stood to each other, it must have cost more to the pride of Britain to have received the law from us than from any other power. And if war had been the consequence, how were we to have recovered the amount of the spoliations committed on the property of our merchants? How were we to act? Were we to demand satisfaction? We have no protection to our commerce, and therefore the British can at any time arrest it without additional expense to themselves, having near 500 vessels of war at command. What had been our situation ever since the negotiation? Have we not, said he, been one of the happiest nations upon earth? Yet we are about to oppose the necessary appropriations to carry into effect that Treaty which hath been the means of keeping us in a neutrality, and thereby hazard a war which may be our ruin. But, if we arrest the Treaty by refusing to make the necessary appropriations, can we suppose Great Britain will carry the Treaty into effect on her part? It would be inconsistent to think so. Great Britain was certainly acquainted with what was going on within these walls, and would refuse to give up the posts at the time specified. Who had been the cause of the posts being so long kept from the United States? The State of New York had been too long kept from its just due; that State had not prevented the British from obtaining their debt, and the people now looked with anxious expectation to the time when the posts were to be given up. They were, at present, considerably alarmed, lest the British Treaty should not be carried into effect. He had received letters that morning, from some of his constituents, who were at New York, endeavoring to sell their produce (for a number of the farmers in that part of the country which he came from, did not sell their produce to the merchants, but attended the market with it themselves.) They write the price of flour had already fallen three dollars a barrel, and wheat four shillings per bushel. Who were to be the losers, under these circumstances? The farmers. Who had the most produce to sell? The farmers in the State of New York. The other day a resolution was laid upon our table, proposing to lay an embargo on the exportation of corn. This, if it had been agreed to, would have had an immediate effect on the State of New York. What was the effect of the embargo in 1794? The farmers were obliged to sell their produce for what they could get. Whatever loss was experienced, fell upon the farmer; and so it will be with respect to their present proceedings. If merchants cannot get insurance, will they send their vessels out? No; and they will certainly give no more produce than they can sell their articles for, with a trade profit. The great objection against the Treaty was, that payment for the negroes which were carried away by the British, at the close of the war, was not provided for. It appears that this, at best, was a doubtful point. General Carlton, previous to his leaving New York at the close of the war, and when the negroes were demanded of him, said, that many slaves had been declared free by his predecessors before his own arrival; over these, he said, he neither possessed nor could assume any control. He considered them as at liberty to go to any part of the world which they thought proper. He was unwilling to suppose that the British Ministry could stipulate, by any Treaty, to make themselves guilty of a notorious breach of public faith to people of any color. He considered restoration, where inseparable from a violation of that faith, as, in itself, utterly impracticable. It was acknowledged by every gentleman that the Treaty of 1783 was broken by the United States; and, if so, what could their negotiator do? The British Government would not come into the same terms as the Treaty of 1783, in the sense and meaning of the gentleman from Virginia, nor would they admit that that Treaty compelled them to give up or make restitution for the negroes. Their negotiator, thus situated, no doubt concluded that the amount of the negroes was not an object which ought to prevent a negotiation so desirable at that time, and agreeable to the law of nations. The Treaty of 1783 had been violated. Here Mr. W. quoted several authorities, among which was _Marten's_ Law of Nations: "The violation of one article only of a Treaty, by one party, may, at least successively, give the other a right to violate the whole Treaty, unless this right has been formally renounced." The United States having violated that Treaty, there was no other way than commencing a negotiation. And would gentlemen say that the negotiation had not been attended with beneficial consequences to this country? Was not peace the most to be desired, especially in our present situation? Had not the managers of our Government kept a watchful eye on our affairs? Had not our neutrality been the occasion of our wealth and prosperity? And having now entered into a Treaty with Spain, Algiers, and Natives, let us carry that with Great Britain into effect, and secure to us peace with all the world. When Mr. WILLIAMS had concluded-- Mr. HILLHOUSE rose and said, the subject now under consideration was one of the first in magnitude he had ever been called to deliberate upon, and that the circumstances under which it came up were peculiar, for previous to the Treaty's being either promulgated or known, a hue-and-cry had been raised, and the prejudices of the people as much as possible excited against it, and he confessed it had not been without its effect upon his own mind. When the Treaty came out, therefore, he was led to examine it with attention, compare it with our Treaties with other nations, and those between Great Britain and other nations; the result of this inquiry was, that he found that no privilege or advantage given by Great Britain to the other nations was withheld from us; that advantages were secured to us which were enjoyed by no other nation, nor even by her own subjects: that we gave her little that was not enjoyed by every other nation; and, on the whole, that it was as good a Treaty as we had a right to expect, and as he had ever expected to obtain. He was sensible that prejudice, which, like a sentinel at the door of the human mind to keep out truth and argument, had induced many good citizens of the United States at first to be opposed to the Treaty, who, upon being prevailed on to give it a more candid examination, had declared in favor of it; but he hoped the Representatives of the people, called to decide on a question which might affect the dearest interests of millions, would, as much as possible, divest themselves of prejudice and passion: to do it entirely, he believed, was impossible. The first, and, if well-founded, the most important objection which he had heard made against the Treaty was, that a claim for negroes and other property carried away from New York had been wholly overlooked or given up by our Minister. Here, he said, he was sensible any argument he might adduce would be opposed by the party opinions formed at the time--when judging in our own case, and when we felt a great degree of sensibility for the losses and injuries we had recently experienced. He was not unapprised that Congress had claimed that the construction of the 7th article of the Treaty was such as to require the delivering up of the negroes, and had passed the resolution read by the gentleman from Virginia, (Mr. HEATH,) and that that opinion had, without examination, been implicitly followed by many respectable characters; but he hoped at this distance of time, he might expect a candid hearing, whilst he examined their arguments and the law of nations, to which alone resort can be had to decide differences between sovereign and independent nations. To his mind they were conclusive that we had not a well-founded claim; to every mind, he believed, they would render the claim at least doubtful. His first inquiry, he said, should be, whether negroes were to be considered as property? This, he believed, must be admitted: they were thus recognized by the article itself, which says "negroes or other property." Negroes being mentioned amounts only to a specification of one kind of property; as, in the constitution, it says "capitation or other direct taxes," which is a conclusive recognition that a capitation tax is a direct tax, within the meaning of the constitution. Upon no other ground than that of property could the United States claim them; as men, they had a right to go where they pleased. Our commissioners, at the time of the embarkation, had no hesitation in declaring that they considered "negroes, horses, and other property," as being precisely on the same footing, and selected a claim for a horse as one of the strongest that could be found to enforce a compliance with this construction of the article. The claim was in these words: "Mr. Vanderburgh had a horse stolen from him, out of his stable in Beekman's Precinct, in Dutchess County, 26th February, 1780, and the horse was conveyed by the person who stole him to a then British post, in Westchester County, where he has since been detained; so that Mr. Vanderburgh could not recover him again. The horse is now in the possession of Col. James De Launcy, of this city, from whom Mr. Vanderburgh has demanded him, and who refuses to deliver him to Mr. Vanderburgh." In the letter of the Commissioners to General WASHINGTON, on this subject, they say: "In the interview between the 15th and 24th, numbers applied to us for a restitution of their negroes and other property in the possession of others, but we supposed it most eligible to defer a requisition till a clear unequivocal case, similar to that of Mr. Vanderburgh's, where the proofs were at hand and not embarrassed with the circumstances of a capture in war or other pretences under which property is withheld here, should present itself; sensible that if restitution was denied in such an instance, it would inevitably be in every other." It therefore appears clear that negroes, horses, and other property, were, by this article, placed upon the same footing, and that it was as much a violation of the Treaty to carry away a horse as a negro. He next proceeded to inquire what was the situation of this property, and in whom, according to the law of nations, it was vested at the time of executing the Treaty? This point, he said, Mr. JEFFERSON had fully settled to his hand, and read out of his collection the following extracts: "We now come together (says Mr. Jefferson) to consider that instrument which was to heal our wounds, and begin a new chapter in our history. The state in which they found things is to be considered as rightful; so says the Law of Nations.--_Vattel._ The state in which things are found at the moment of the Treaty, should be considered as lawful, and if it is meant to make any change in it, the Treaty must expressly mention it. Consequently, all things about which the Treaty is silent, must remain in the state in which they are found at its conclusion.--_Bynk._ Since it is a condition of war that enemies may be deprived of all their rights, it is reasonable that every thing of an enemy's, found among his enemies, should change its owners, and go to the Treasury. It is moreover usually directed, in all declarations of war, that the goods of enemies, as well those found among us as those taken in war, shall be confiscated." These authorities, he said, clearly proved that all negroes and other property which in the course of the war had been taken, or in any way had fallen into the hands of the British, had shifted their owner, and were no longer the property of the American inhabitants. In the case of negroes, the British Commander-in-Chief had exercised the highest act of ownership, by manumitting such of them as should conform to certain stipulations, pointed out in his proclamation. If any change was intended to have been made by the Treaty in the circumstances of these negroes, and it had been intended they should be again returned into bondage, there would have been some express stipulation to that effect in the Treaty. The words are, "and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, withdraw all his armies," &c. There is nothing that indicates the least intention that this article should have a retrospective operation. It can only relate to property then belonging to the American inhabitants. Wherever any article was intended to have a retrospective operation, some expression is used that clearly shows such intention. In this same article, speaking of delivering up records, deeds, &c., these words are added, "which in the course of the war may have fallen into the hands of his officers," &c. In the 4th article, "debts heretofore contracted." Any other construction would have required the restoration of vessels which had been taken from the Americans, and were then in New York, under the term "other property," as well as negroes and horses. If any negroes or other property, in the possession of the American inhabitants at or after signing the preliminary articles, were carried off, it was no doubt a violation of the Treaty, but he had not understood that they refused to deliver up property of that description, or that such property was carried off to any great amount. But this matter does not rest only on there being no words in the Treaty which can be construed to have a retrospective operation, but it is fairly to be inferred from the papers contained in this same collection of Mr. JEFFERSON, that it was so understood by the negotiators; for, in the course of that negotiation; it appears to have been a primary object with the British Minister to obtain restitution of the Tory estates, or compensation for them. They almost made a _sine qua non_, and a refusal to comply had well-nigh broken off the negotiation; and to induce the British Minister to relinquish that article, our commissioners brought in a claim for negroes and other property which had been taken, and towns and villages which had been destroyed during the war. He here read the following letter from Mr. Oswald, the British Minister, to our commissioners, viz: "You may remember, that from the very beginning of our negotiation for settling a peace between Great Britain and America, I insisted that you should positively stipulate for the restoration of the property of all those under the denomination of Loyalists or Refugees, who have taken part with Great Britain in the present war; or if the property had been resold, and passed into such variety of hands as to render the restoration impracticable, (which you assert to be the case in many instances,) you should stipulate for a compensation or indemnification to those persons adequate to their losses. To those propositions, you said, you could not accede. Mr. Stachey, since his arrival at Paris, has most strenuously joined me in insisting upon the said restitution, compensation, or indemnification, and in laying before you every argument in favor of the demands, founded on national honor, and upon the true principles of justice. Those demands you must have understood to extend, not only to all persons of the above-mentioned description who have fled to Europe, but likewise to all those who may now be in any part of North America, dwelling under the protection of His Majesty's arm, or otherwise. We have also insisted on a mutual stipulation for a general amnesty on both sides, comprehending thereby an enlargement of all persons who, on account of offences committed, or supposed to be committed, since the commencement of hostilities, may now be in confinement, and for an immediate repossession of their properties and peaceable enjoyment thereof, under the Government of the United States. To this you have not given a particular and direct answer. It is, however, incumbent on me, as Commissioner of the King of Great Britain, to repeat the several demands, and without going over those arguments upon paper, which we have so often urged in conversation, to press your immediate attention to these subjects, and to urge you to enter into proper stipulations for their restitution, compensation, and amnesty, before we proceed further in this negotiation." To which our commissioners returned the following answer: "In answer to the letter you did us the honor to write on the 4th instant, we beg leave to repeat what we often said in conversation, viz: that the restoration of such of the estates of the refugees as have been confiscated, is impracticable, because they were confiscated by laws of particular States, and in many instances have passed by legal titles through several hands. Besides, sir, as this is a matter evidently appertaining to the internal policy of the separate States, the Congress, by the nature of our constitution, have no authority to interfere with it. As to your demand of compensation to those persons, we forbear enumerating our reasons for thinking it ill-founded. In the moment of conciliatory overtures, it would not be proper to call certain scenes into view, over which a variety of considerations should induce both parties at present to draw a veil. Permit us, therefore, only to repeat, that we cannot stipulate for such compensation, unless on your part it be agreed to make restitution to our citizens for the heavy losses they have sustained by the unnecessary destruction of private property. We have already agreed to an amnesty more extensive than justice required, and full as extensive as humanity would demand; we can therefore, only repeat, that it cannot be extended further. We should be sorry, if the absolute impossibility of our complying further with your propositions, should induce Great Britain to continue the war, for the sake of those who caused and prolonged it; but, if that should be the case, we hope that the utmost latitude will not be again given to its rigors. Whatever may be the issue of this negotiation, be assured, sir, that we shall always acknowledge the liberal, manly, and candid manner, in which you have conducted it." In consequence of information from our commissioners that the claim was made and pertinaciously insisted on by the British Minister, Congress passed the following resolutions, viz: "_Resolved_, That the Secretary for Foreign Affairs be, and he is hereby, directed to obtain, as speedily as possible, authentic returns of the slaves and other property which have been carried off or destroyed in the course of the war by the enemy, and to transmit the same to the Ministers Plenipotentiary for negotiating peace. "_Resolved_, That, in the mean time, the Secretary for Foreign Affairs inform the said Minister, that many thousands of slaves, and other property to a very great amount, have been carried off or destroyed by the enemy, and that, in the opinion of Congress, the great loss of property which the citizens of the United States have sustained by the enemy, will be considered by the several States as an insuperable bar to their making restitution or indemnification to the former owners of property which has been or may be forfeited to, or confiscated by, any of the States." Dr. FRANKLIN, in a letter to the British Minister, says: "I must repeat my opinion, that it is best for you to drop all mention of the refugees. We have proposed, indeed, nothing but what we think best for you as well as ourselves. But if you will have them mentioned, let it be in an article which may provide that they shall exhibit accounts of their losses to commissioners hereafter to be appointed, who shall examine the same, together with the accounts now preparing in America of the damages done by them, and state the account; and that if a balance appears in their favor, it shall be paid by us to you, and by you divided among them, as you shall think proper. And if the balance is found due to us, it shall be paid by you. Give me leave, however, to advise you to prevent so dreadful a discussion, by dropping the article, that we may write to America and stop the inquiry." The following article was accordingly drawn up and proposed to be inserted in the Treaty, viz: "It is agreed that His Britannic Majesty will earnestly recommend it to his Parliament to provide for and make compensation to the merchants and shopkeepers of Boston, whose goods and merchandise were seized and taken out of the stores, warehouses, and shops, by order of General Gage, and others of his commanders or officers there; and also the inhabitants of Philadelphia, for the goods taken away by his army there; and to make compensation also for the tobacco, rice, indigo, negroes, &c., seized and carried off by his armies under Generals Arnold, Cornwallis, and others, from the States of Virginia, North and South Carolina, and Georgia: And also for all vessels and cargoes belonging to the inhabitants of the said United States, which were stopped, seized, or taken, either in the ports or on the seas, by his Governors, or by his ships of war, before the declaration of war against the said States. And it is further agreed that His Britannic Majesty will also earnestly recommend it to his Parliament to make compensation for all the towns, villages, and farms, burnt and destroyed by his troops or adherents in the said United States." After pressing the matter to the utmost extent, we find, by Mr. ADAMS's journal, that on the evening previous to signing the Treaty, Ministers on both sides came to the following result: "Upon this I recounted the history of Gen. Gage's agreement with the inhabitants of Boston, that they should remove their effects, upon condition that they would surrender their arms; but as soon as the arms were secured, the goods were forbid to be carried out, and were finally carried off in large quantities to Halifax. Dr. Franklin mentioned the case of Philadelphia, and the carrying off effects there, even his own library. Mr. Jay mentioned several other things; and Mr. Laurens added the plunder in Carolina, of negroes, plate, &c. After hearing all this, Mr. Fitzherbert, Mr. Oswald, and Mr. Stachey, retired for some time, and returning Mr. Fitzherbert said, that upon consulting together, and weighing every thing as maturely as possible, Mr. Stachey and himself had determined to advise Mr. Oswald to strike with us according to the terms we had proposed, as to our ultimatum respecting the fishery, and the loyalists. Accordingly we all sat down, read over the whole Treaty and corrected it, and agreed to meet to-morrow at O.'s house, to sign and seal the Treaties." Will any candid man say, after reviewing these circumstances, that the 7th article was meant to secure the restitution of negroes and other property taken in the course of the war? If that had been meant, would it not have been improper to have urged it as an argument against the introduction of an article which would have subjected this country to immense embarrassment and expense? It is true that the United States did challenge negroes and other property, which had fallen into the hands of the British previous to signing the Treaty. This circumstance, for the reason he had mentioned, and others that might be suggested, ought to have very little weight, for it is well known that recrimination of a violation of the Treaty soon commenced on both sides, and each mustered up every tolerable claim; many of which have since been admitted on both sides to be groundless. A circumstance which strongly corroborated what he said was, Sir Guy Carlton's letter on that subject had also been so grossly misunderstood and misrepresented, from that time to this, and now advanced by a gentleman on this floor, (Mr. GILES,) and even by Mr. JEFFERSON--in this instance departing from that candor which is so conspicuous in almost every other part of this excellent performance--for, when speaking on this subject, he says, "here there was a direct, unequivocal, and avowed violation of this part of the 7th article, in the first moment of its being known." Mr. JEFFERSON has given us a copy of Sir Guy Carlton's letter to General WASHINGTON, which is relied on to support this assertion, which is so far from speaking such a language, that in his opinion, it was directly the reverse, and that in a very pointed manner. His words are: "I must confess, that the mere supposition that the King's Minister could deliberately stipulate in a Treaty an engagement to be guilty of a notorious breach of the public faith towards people of any complexion, seems to denote a less friendly disposition than I could wish, and I think less friendly than we might expect. After all, I only give my own opinion. Every negro's name is registered, the master he formerly belonged to, with such other circumstances as serve to denote his value, that it may be adjusted by compensation, if that was really the intention and meaning of the Treaty. Restoration was inseparable from a breach of public faith, and is, as I think all the world must allow, utterly impracticable." Gen. WASHINGTON, at that time, seemed disinclined to give an opinion on that subject, but intimated the propriety of leaving any doubtful clause of the Treaty to be settled by future negotiation; for in a letter from him to our commissioners in New York, dated June, 1783, who had written to him for particular and pointed instructions on this very subject, there is this passage: "It is exceeding difficult for me, not being a witness to the particular cases, or acquainted with the particular circumstances which must fall under your view in the course of the evacuation, to give you a precise definition of the acts which you are to represent as infractions of the Treaty; nor can I undertake to give an official construction of any particular expression or terms of the Treaty, which must, in cases of ambiguity or different interpretations, be explained by the Sovereignties of the two nations, or their commissioners appointed for that purpose." A letter drawn up with great caution and extremely characteristic of that great man, who has always been extremely careful never to commit himself, but upon mature deliberation and upon sure ground. Here, Sir Guy Carlton, as a public officer of Great Britain, had made an explicit declaration on the subject, and that was directly against our claims; for his directing an inventory of the negroes, was only an evidence of his being disposed to conduct candidly in the matter, and give us an opportunity to recover a compensation, if we could afterwards make out our construction of the Treaty to be right. Both in the United States and Great Britain it is admitted, as a sound rule of construction, that where any law or instrument is doubtful, and the liberty of any one, even of a slave, to be affected by it, that construction was to be preferred which was favorable to liberty. Under this rule, ought this Treaty to be so construed as to reduce to slavery three thousand persons who had obtained their liberty, by putting themselves under the protection of the British arms, unless there was some positive unequivocal stipulation in the Treaty which could admit of no other construction, he hoped, for the honor of America, they would make no such challenge. There was another circumstance which he had never seen mentioned, which, in his opinion, greatly weakened our claims, which was the doubts he entertained of our right to demand of a foreign nation the restitution of a runaway slave. The United States are now at peace with all the world; suppose a slave should escape into the dominions of a foreign nation, and on demand they should refuse to deliver him up? he very much doubted whether we should have just ground of complaint. On the other hand, if any of our citizens may be so unfortunate as to be reduced to slavery by any of the Barbary powers in Africa, should make their escape into the dominions of any of the European nations, and upon being claimed by such powers, should be delivered up, he did believe we should have good ground of complaint against such nation, as being unjust and inhumane. And, so far as principle is concerned, what difference does it make whether the citizens of the United States are carried into slavery in Africa, or the inhabitants of Africa are brought into slavery in the United States? He knew of no principle that made a difference between the natural rights of a white or black man. The first principle that is laid down in the rights of man, is, that all men are born free and equal; it does not say all _white_ men. He did not believe, he said, that the House would ever admit so absurd a doctrine, as that the different shades in a man's complexion would increase or diminish his natural rights. He hoped no gentleman would take any exception to what he had said on this point; he did not mean to give offence, or to throw any reflection on any part of the Union, on account of their having a larger proportion of slaves. It was an evil which existed at the commencement of our Revolution, and he trusted every part of the Union would get rid of the evil as soon as it should be practicable and safe. What he had said, was only what he felt himself bound to do in justification of our Minister for his having given up that claim. Mr. HILLHOUSE requested gentlemen to pause a moment, and reflect what will be our situation if this Treaty is rejected. The peace of 1783 is agreed on both sides to have been infracted, since that Great Britain has committed depredations on our commerce to an immense amount. Is it supposed that all this matter can go off without any noise or combustion? As to treating again, no one can suppose that we could do it to any advantage, after such rejection. What may Great Britain expect, if we will not settle our differences by negotiation? Will she not expect that we shall resort to more violent measures--such as reprisal, sequestration, or stopping of intercourse? And to guard herself against such measures, may we not expect she will lay her hand upon all our property on the ocean? He said he looked upon such events as the natural consequences of our rejecting the Treaty. What may we expect will be the conduct of our own citizens? Will they tamely submit to be robbed of their property, when they lose all hope of aid or protection from the Government? They will not; they will defend it even to the shedding of blood; and not only so, but they will also take every opportunity they have to make reprisal for the property they have already lost upon those who did them the injury, whether they belong to one nation or another. What, he asked, could be the end of all these things but war? WEDNESDAY, April 20. _Treaty with Great Britain._ The House then resolved itself into a Committee of the Whole on the state of the Union, and the resolution for carrying the British Treaty into effect, being under consideration, Mr. PAGE said, that he had heard no arguments in favor of the resolution before the committee, but such as might be used to influence a vote at any other time, and upon almost any occasion; for we are told that war, or popular discontent, and great inconvenience and distress to merchants, underwriters, and others, will be the consequence of its rejection. If such threats can influence this House upon the present occasion, an unhappy and mortifying comparison may be made between the Congress of 1776, and that of the present day. They despised and encountered the dangers of war actually commenced. He wished, when members were disposed to mention their fears of such dangers, they would first clear the galleries; for such communications ought to be secret. Did members really believe that Great Britain will declare war against the United States, if this House should refuse to be accessary to the violation of the constitution, the destruction of their own rights, of the rights of neutral nations, and of the interests of their constituents? If they do believe this, is their belief founded on conjecture alone, or on the negotiator's declaration, that the British Ministers threatened him with war, declaring that war should be the consequence of a rejection of the Treaty? If the latter be the case, and nothing less can justify such repeated assertion that war will be the consequence of a refusal to carry the Treaty into effect, the Treaty ought to be deemed null and void on account of that threat; and if the former, they may be assured that they are mistaken, and that Britain is not so frantic as to engage in a war with the United States upon such slight grounds. The citizens of the United States wish not to be at war with the British nation; nor can the people of Britain desire a war with them. Both must wish for peace, and a full commercial intercourse upon liberal terms; and as the Executive authority of both countries are well disposed to each other, and have, as far as in their power, carried the Treaty into execution, what reason can be assigned why we should be involved in a war? It has been said that the United States will be obliged to declare war, on account of the British refusal (which may be expected) to deliver up the posts, and to make compensation for spoliations of our commerce; but I see no necessity for such conduct. For my part, should Britain never give up the posts, I would not vote for war, nor be at the expense of a single regiment to take them; nor would I go to war to recover losses sustained by spoliations. For, if we reject the resolution before you, sir, we may be at liberty to pass such a bill as we I passed in the year 1794, by a majority of twenty-four members, and for which thirteen Senators then voted; and should the Senate concur with us in passing it, we might use it more effectually than a declaration of war for the recovery of the posts, and reparation of wrongs. As to war, as my colleague yesterday said, I have reason to deprecate it, for the sake of my constituents, and for my own sake; for I have experienced enough of its evils; but I cannot think that I ought to sacrifice their dearest interests merely from an apprehension of the dangers of war. The arguments, therefore, which I have heard, cannot induce me to vote for the resolution before you. Indeed, sir, I must vote against it; because I think that the Treaty is unconstitutional and pernicious; and even if it were constitutional in every respect, and as advantageous to the United States as it has been represented, I should think it impolitic and dishonorable in this House to lend its aid to carry it into effect during the present war, and a continuance of the British depredations on our commerce, and impressment of our seamen. The Treaty appears to me unconstitutional, because it takes from Congress that very power with which it was invested by the constitution, and to invest them with which, the constitution itself was expressly formed; a power which I think should be held as precious and unalienable. I mean the power of regulating the commerce of the United States with Great Britain; so as to induce her to fulfil all the conditions of the Treaty of Peace, and to put the trade of the United States with her upon a footing of reciprocity. It appears also unconstitutional, because it violates a solemn act of Congress passed in conformity to the express words, and I may say, in obedience to the injunction of the spirit of the constitution: I mean the act for establishing a uniform rule of naturalization, and this violation, too, operates partially, and in favor of British subjects alone. It is moreover unconstitutional, because it interferes with the authority of the Judiciary, by establishing a Court of Commissioners, a kind of supreme court of appeals, within the United States, with powers to proceed, unknown to our laws; with temptations to defendants to make no defence; with a right to bind the United States to pay debts which they owe not, and to any extent or amount which that court may think fit to decree; and it is unconstitutional, because it authorizes the PRESIDENT to create certain offices, and annex salaries thereto. In these instances, at least, I think the Treaty unconstitutional; for I think that Congress cannot authorize the PRESIDENT to do away the power of Congress or to establish a court of appeals superior to the Federal Supreme Court; that, whatever would be unconstitutional, if done by Congress, cannot be constitutional if done by the PRESIDENT and British King. But, sir, if the Treaty were not unconstitutional, that is, if the PRESIDENT and Senate had a right to deprive Congress of the power it claims, and to interfere with the Judiciary, yet the exercise of that right in the present case, ought to be viewed as so pernicious to the United States as to render the Treaty null and void; or, at least, it ought to be viewed as an argument of sufficient weight to induce this House to refuse their aid towards carrying this Treaty into operation. And were it even constitutional and advantageous to the United States in every article, yet, as it acquiesces in a violation of the rights of neutral nations in favor of Great Britain, and in some instances, to such a degree as to be thought even by the PRESIDENT himself, to afford just ground for discontent on the part of our allies, it will be dishonorable and highly impolitic in this House to be in any manner instrumental in carrying it into effect. As it has not been in the power of the United States to assist their Republican allies, when fighting in fact their battles, the least they can do, or the least that the world and those allies can expect from them, must be, that they will not put the enemies of those allies into a better condition than they were by making Treaties with them during the present war. Mr. FINDLAY said he should not think it necessary to resume any of the arguments relative to a principle which had already been settled in that House; yet, he observed, that every gentleman who spoke on the subject seemed to argue what were the rights of that body upon the subject of Treaties, as if no question had already been had on the occasion. It had been insisted upon, notwithstanding the decision which had been had, that a Treaty was a law when it came before that House, and they had no power but to appropriate to carry it into effect. He said this opinion was directly contrary to the opinion held on the constitution at the time it was accepted in Pennsylvania. Moral discretion, he said, was necessary to be exercised in every decision of that House, except the constitution had prescribed to them some positive rule of action. In ratifying the constitution in the State of Pennsylvania, this was the understanding of it. The minority in the convention did not wish so much power placed in the Executive, and he appealed to gentlemen in that convention, if this was not the doctrine asserted by the majority in answer to the objections of the minority. Indeed, if they were not to have exercised a moral obligation upon the Treaties, the constitution would have expressly said so, as in the case of the PRESIDENT's salary, the pay of the Judges, Army appropriations, &c. If they had not been limited in these articles by the constitution, they certainly would have had the power to have changed them if they had thought proper. But, passing over this consideration, there had been pretty large views taken of the manner in which the Treaty came before them. The gentlemen from New York and Virginia had entered into the subject. He must beg leave to differ from the gentleman from New York as to the matter of fact relative to that House in the concerns of Government two years ago. He had no apprehensions at the time the Envoy was sent to Britain to negotiate a Treaty, that Britain would have commenced a war if that measure had not been adopted; so far from it, that a majority of that House thought differently. He had no doubt that war, and the destruction of liberty altogether, had been meditated by Great Britain; but before the negotiation was commenced, circumstances occurred which caused her to give up this extravagant design. Before the negotiator was appointed, it is well known that the plundering Order of the 6th November was revoked. The gentleman from Virginia (Mr. GILES) had given a very good narrative of events in Europe, which fully showed the cause of this change of conduct. That gentleman had also gone through the Treaty, article by article, in a manner so much to his satisfaction, that he should not attempt to follow him. Before the negotiation took place, we had suffered considerably by British spoliations, and that House thought of various means to make it the interest of that power not to continue their depredations. First one plan was proposed and then another. It need not be mentioned that amongst these was the plan of sequestration, the future power of doing which this Treaty proposed to deprive them of. It was discussed in the House, but no question taken on it, to show that negotiation was not thought necessary. He mentioned a conversation which had taken place betwixt a gentleman then in the Cabinet (now no more) and himself, which confirmed his opinion of the propriety of the measures. A bill for regulating commerce in such a manner as to make it the interest of Britain to refrain from injuring us, and redress the wrongs we had suffered by spoliations, was agreed to by the House, but negatived in the Senate. So far from being then afraid of war, they were more and more convinced that it was in their power to make it the interest of Britain to refrain from their acts of violence towards us. Mr. MOORE.--Mr. Chairman, I rise with diffidence to give my sentiments on so important a question as that now before you, especially as I have been preceded by gentlemen whose superior abilities have enabled them to investigate the subject with more accuracy than I am capable of. I consider the object as important of itself. It is rendered more so by the warmth with which it has been discussed--the irritation it has produced, both in this House and on the public mind. I lament that improper motives should be imputed to gentlemen on either side. I am disposed to believe, that gentlemen aim at doing what will best promote the public interest. I entertain no suspicion of designs against the Government by any member of this House, or any branch of the Government. Gentlemen have predicted a war and dissolution of the Government, if provision is not made for carrying the Treaty into effect. I have no apprehensions of either. It is highly improper to attempt to influence the votes of members by such declarations. I hope gentlemen will believe that members who differ from them in opinion, are equally zealous with themselves in discharging their duty, and have firmness enough to repel every attempt to intimidate. For myself, I have equal confidence in every part of the Union, that they have no wish to dissolve it. The suggestion is unfounded, and ought not to be made. Mr. Chairman, the vote which I shall give on the question before us, will, in some degree, be influenced by a constitutional principle, which I consider as involved in the decision. On the resolution calling for the instructions given to Mr. Jay, and other papers relative to the Treaty, it was insisted on by members of this House, that the Executive has a right, by Treaty, to supersede all Legislative powers vested in Congress by the constitution. The Executive gives the same construction to the constitution. If, under these circumstances, I vote for the resolution before you, I consider myself as admitting, as recognizing the principle contended for. This I cannot do. On the admission, or rejection of this principle, I am of opinion, the future course, the future operations of Government materially depend. By this it will be decided, whether it is wholly Executive or not: whether this House depends on the courtesy of the Executive for their right to interfere in legislation. It has been argued, that this extensive, unlimited power, was necessarily vested in the Executive, subject only to the control of the Senate. In order to support the sovereignty and independence of the small States, I do conceive that a branch of the Legislature in which the States are equally represented, was all that could be claimed. Can it be conceived to be necessary, just, or proper, that the regulation of all the important interests of the Union should be at the disposal of the Executive? Can gentlemen seriously believe that the citizens of the United States, who opposed, at so great an expense of blood and treasure, the claim of Great Britain to tax us unrepresented, would admit all their interest to be represented by so unequal a representation as that contended for? It has been asked, Is not the Senate as worthy of the confidence of the citizens of the United States as this House? I will ask, are they more? This Legislative power is restrained and checked by the constitution; particular modes and restrictions are prescribed, but no checks are imposed on the Executive. Were the people jealous of this House, and not of the other branches? Did they suspect the Legislature of doing wrong? When this House was connected with the other branches, were they to regulate their interests; and have they reposed unlimited confidence in the other branches when acting without this? Did they consider this House as the only branch from which any danger was to be apprehended? It is impossible, yet this must have been the fact, if the construction given to the constitution is a just one. A gentleman from Connecticut has said, that gentlemen had prejudged the Treaty; they come forward with prejudices against it, determined to vote against it. It is not so with me. I was strongly inclined to vote for it; to make some degree of sacrifice rather than defeat it. Gentlemen, on reflection, must be convinced that the question has not been prejudged. The Envoy was appointed at the moment when this House was deliberating on means for preventing further spoliations on our commerce. Commercial regulations were proposed, and other means from which they might have been forced to abandon their unjust and oppressive system. I remember well the arguments then used were convincing to my mind; that those were the only weapons of defence within our power; that they would be effectual. But these were arrested by the despatch of an Envoy Extraordinary. Some of the leading features of the Treaty were then predicted; the event has corresponded with those predictions. Principles were then discussed, which the Treaty contains, before the negotiator was appointed. This shows there was no prejudging in the manner gentlemen have stated. By this Treaty all the measures then contemplated by the Legislature are arrested; an eternal veto is imposed against our ever carrying the measures then contemplated into effect. This shows that the Executive claims not only the constitutional right of forcing this House to pass what laws they please, but also, by Treaty, to declare what they shall not do. We have passed a resolution, which is now on your files, declarative of the sense of this House as to their constitutional rights. The question is, however, undecided. The Executive and Senate will proceed to act on their own construction. They may, on their own construction, make a Treaty, which will imply a still more imperious and commanding necessity to provide for its execution, than even the present case. This necessity may force a relinquishment of the right contended for by this House. It may force an acquiescence in the Executive regulating all the interests of the Union. I believe it was not the sense of the framers of the constitution. It is not the sense of the people who adopted it. It never can be mine. The merits of the Treaty have been ably and accurately discussed. I will make but a few remarks on it. I must disagree with the gentleman from Connecticut, who mentioned, as a well-known principle in judging of Treaties, that all property, (by fair construction, and by the established law of nations,) if not excepted particularly in a Treaty, remains in the same state in which it was found when the Treaty was made. Those in possession retain the possession. From this he has concluded, that negroes, taken during the war, had become the property of the captors, or rather, were emancipated. The words of the Treaty of Peace are, "negroes and other property." This plainly shows, in his opinion, that, by negroes, was not meant those taken during the war; they were not American property. The property was changed. It could only be intended, such negroes as were taken after the peace. I will ask, was it ever known in a Treaty, that a stipulation was made to give up property plundered after the peace? Is it not an established principle amongst all civilized nations, that plundered property shall be given up? Is it necessary, or was it ever thought so, to make it a stipulation by Treaty? I believe, if his construction is a just one, it is a new case, the provision was at least nugatory. But if the principle he lays down is a just one, how does it happen that debts due to British subjects, paid by the debtors into the Treasury under the sanction of a law, and appropriated to the use of the State, are now recoverable by the British creditor? An important case of this kind has been decided in the Federal Court, and judgment given for the British creditor. Was the property less changed by the law of a sovereign and independent State, than by the proclamation of a British commander? This cannot be. The fact is, however, that in two cases, found in the same instrument, there are claims founded on the same principle; the one, a British claim, is established, the other, a claim of the United States, is rejected. This involves in it an absurdity. By those opposed modes of construction, an important claim of the citizens of the United States is given up by the Treaty, a claim against them to a great amount is established. The claim as against us is admitted; our claim is rejected, in cases where the same principle fairly applies, and where, by gentlemen's own showing, there is no dissimilarity which can justify such opposite constructions. There is another provision of the Treaty, by which an important interest has been sacrificed. British subjects held lands within the United States before the war; many of those claims were barred; the claimant being an alien could not recover; his being an alien was the only bar. It was effectual--such has been the decision of the Courts. But by the Treaty, being aliens shall not bar the claim of British subjects--thus, many of the extensive claims are restored. In some of the States more than half their territory will be revested in proprietors. What could induce this grant? What equivalent do we receive for this sacrifice? Sir, I am constrained to think the Treaty a bad one, in those instances I have mentioned, more so than in any others. And when I connect with the Treaty itself the important constitutional question which has been discussed, I cannot vote for the resolution before you. Mr. KITTERA.--Since the 4th of July, 1776, the Councils of America have not been agitated by so momentous a question as that at present before the committee. At the period to which I allude, the question was, whether we should tamely submit to an abject and disgraceful slavery, with all its concomitant evils, or, by a Declaration of Independence, an exertion of our internal strength, with the advantages of foreign aid, make a bold and manly effort to obtain the blessings of freedom--the solid rewards of well-earned liberty. The present question is, whether we shall supply the means of carrying into execution a Treaty of Commerce and Amity with a powerful nation, entered into by a Minister of the United States, and solemnly ratified by the authorities constituted by the people for such purposes; or, by refusing, perhaps unconstitutionally refusing those means, hazard the peace, interrupt the prosperity, and tarnish the honor of the country? In a question of such magnitude, prudence calls me to pause, duty to reflect. My country's faith is plighted, a solemn contract is made; it would therefore be unwise and impolitic, as it concerns the interest, and dishonorable, as it regards the character, of this nation, in the infancy of its existence, to violate so solemn a contract. Two causes have contributed much to prejudice the American mind against the Treaty. 1st. An enthusiasm for France, struggling in the cause of liberty, against the combined Monarchs of Europe, in which combination, the very power with whom the Treaty was made, formed a prominent part. 2dly. Strong resentment against Britain, for injuries received during a tedious and cruel war, and those injuries renewed by a detention of our Western posts, exciting and aiding the savage Indian tribes in the commission of hostilities on our frontiers, with strong indication of a design to contract our boundaries, and their lawless depredations on our commerce. I will not add, that there are amongst us some irreconcilable enemies to this Government, who opposed its adoption, predicted its downfall, and whose pride and political consequence are suspended on the fulfilment of this prediction. For the honor of human nature, and for the character of my country, I hope there are few to answer this description; if, however, there are any, the poet's execration is to them peculiarly applicable: "Cursed be the man who owes his greatness to his country's ruin?" There are some things in which the candid part of those who hear me will not disagree. 1st. That our Envoy was a wise and honest man; he was a tried patriot, skilled in diplomatic life, and rendered to his country important services during the late war. The tale of his receiving British gold was made for children and fools, and need only to be told, to be disbelieved. 2dly. He made the best bargain he could. I will not mention, in proof of this, the ratification of the contract, eight months afterwards, by the PRESIDENT, (in whom this country has certainly an unbounded confidence,) with the advice of two-thirds of the Senate; but I have proof positive. The letter of Mr. Pinckney, our Minister resident at London, and conversant with every part of the negotiation, in strong and decided terms advises Mr. Jay to accept the contract as the best that could be procured, and as one that would promote the interests of this country. 3dly. If negotiations had been unsuccessful; if the Treaty, on the terms offered, had been rejected, war must have ensued. Our national honor would have forbidden a tame submission under so many insults and injuries; such submission would have invited new insults, and our own safety would have made resistance and retaliation necessary. The Treaty naturally presents itself under two general heads: 1st. Such parts of it as are permanent, to wit, the first ten articles. 2dly. Such parts of it as are temporary, to continue for two years after the expiration of the war in which Great Britain is now engaged. Three great points are embraced under the first arrangement: a surrender of our Western posts, compensation for the spoliations committed on our commerce, and the payment of British debts. However lightly my colleague from the western part of Pennsylvania (Mr. FINDLAY) spoke yesterday of the Western posts, I consider the acquisition as an important treasure to this country. It will not only increase the value of our Western lands, and open to us a new source of commerce, but it will relieve us from the expense and horrors of an Indian war. Those were the sentiments of the gentleman himself, on this floor, two years ago. The spoliation on our commerce has generally been estimated at five millions of dollars. On a rejection of the Treaty, I wish the gentlemen in the opposition to point out how the American merchants are to be reimbursed for their loss. Nothing can be expected from new negotiations. It would be a solemn mockery of justice to the claim of those citizens. Payment out of the Treasury has been talked of, and a resolution to that effect is now on your table. This can never be done. It would be without a precedent, and Congress has heretofore refused the claim. And how can you discriminate such claims from those rising from savage depredations on your frontier settlers? The protection of the Government was, at least, as much due to the peaceable farmer as the speculating merchant; and if losses have arisen for want of such protection, compensation is as justly due in the one case as in the other. But why are we to subject the Government to this payment, or our citizens to this loss, when compensation is offered by the nation that has done the wrong? As to British debts, the committee have had various calculations of their amount. I believe some of the estimates have been exceedingly exaggerated. If they are even half the enormous sum that has been stated on the other side, we have not much difficulty in accounting for the extraordinary opposition to the administration of this Government that has appeared in a certain quarter of the Union. Whatever may be the amount, the nation is bound by the strongest ties of justice and national honor to secure the payment. Mr. HOLLAND said, he would submit some considerations to the committee, that, together with those which had been given, would influence his vote upon the resolution on the table; a subject, as had been said by all who advocated the resolution, of the first importance--an issue on which depended peace or war. He said, he considered the question of some importance, particularly as it related to their constitutional powers; but the conceptions of gentlemen had exaggerated the result of the present question. It was nothing more or less than, would they or would they not now appropriate moneys to carry the British Treaty into effect? He said, he had ever felt a disposition to that purpose; not because the faith of the nation, as had often been said, was pledged; not because they were under moral obligations, as had been contended for--neither of which he could admit; but because a respect was due to the negotiator, to the Senate who advised, and to the PRESIDENT who ratified it; for, it was to be presumed, until the contrary appeared, that they exercised their judgments for the good of the nation. But it was possible the means they have adopted may not produce the end intended; they may have been mistaken. When he first examined the instrument, he was in hopes that there was something extrinsic existing, which, when communicated to him, would do away the exceptions on the face of the instrument, and therefore he was silent and suspended his judgment. It was for that purpose he had voted for the papers relative to the negotiation to be laid on the table, in hopes of obtaining further information, previous to his being called upon to carry it into effect. But, unfortunately for him, no further information was to be obtained. The useful papers, an innocent and humble request, were not granted. He was not possessed of any other information than could be drawn from the instrument, from the writers on that subject, and the arguments that had been advanced by the gentlemen who had advocated the resolution; to the whole of which he had with candor attended, and with regret informed the committee, that nothing had been advanced, that had convinced him of the reason, propriety, necessity, or fitness, of the stipulations contained in the instrument. Those gentlemen, instead of reasoning, have endeavored to alarm. They have said that, if we do not carry this Treaty into effect, that we shall be plunged in a war; that Britain is a proud and haughty nation; that they will lay their hands upon all our property, &c. This was an address to our fears and not our reason, and were our fears once on the wreck, there is no knowing the result, or where we should land. But, in this instance, we would not be governed by panic, or dread of the power of that haughty nation, as they had been called; but as the Representative of a free and independent nation, he felt himself perfectly at liberty to exercise his reason in the most cool and deliberate manner. Not apprehending any danger, the time has been, and now is, that we are perfectly secure in asserting our equal and reciprocal rights with that nation. We have done it in a state of infancy and inexperience, at a time much more unfavorable, taking each side of the question into view, than the present. And shall we now hesitate, and tamely suffer them to dictate to us? And are we bound to accept the Treaty, lest they should be offended and treat us with contempt for not accepting, as it is said, a more favorable offer than they have given to other nations? Are we not the sole judges; have we not a right to determine for ourselves? And as this is a mere naked stipulation, they can receive no damage, nor, on this early notice, can they charge with deception, or have any right to complain. One thing is certain; so long as Great Britain finds it for her interest to be pacific, she will adopt measures calculated to preserve peace; but when interest dictates the contrary, her invention will not seek a pretext for a different conduct. The history of that nation gives abundant proof of this. Mr. SWANWICK objected that his colleague (Mr. KITTERA) had charged him with a want of candor. He was liable to mistake, he said, equally with any other man; but he trusted he should not be charged with knowingly misstating any thing with respect to the East India trade; he had reserved to himself a future opportunity of speaking on that subject, which, however, the length of debate seemed likely to prevent. He had said that the American vessels were permitted to trade to the East Indies as all other nations were, but that they were obliged to land their goods in the United States, whilst the Danes, Swedes, &c., could go there and carry the goods which they purchased from thence to any part of the world, except to the British dominions; and that was the situation of America antecedent to the present Treaty. A ship of his, some time ago, earned a good freight from Bengal to Ostend, and another he knew had lately made one to Hamburg; but, by the Treaty before the House, whatever advantages might be made by going to a foreign port their vessels were deprived of, and must return direct to the ports of the United States. These, he said, were stipulations which no other nation lay under; and though, perhaps, no nation had special leave stipulated by Treaty to go there, yet they all, nevertheless, did go, and never met with any opposition. FRIDAY, April 22. _Execution of British Treaty._ After the presentation of several petitions on this subject, the House resolved itself into a Committee of the Whole on the state of the Union, when the resolution for carrying into effect the British Treaty being under consideration-- Mr. COIT said, that the importance of the resolution before the committee would preclude all necessity of analogy for any member's asking their attention to his observations. He should only add to it, that he should endeavor not to repeat what had been already said. He observed, that the discussion of the merits of the Treaty came before the committee under peculiar disadvantages, for, besides the prejudices against it that might be supposed to have been caused by extraneous circumstances, the agitation of the important constitutional question relative to the right of the Legislature to concur in giving validity to this Treaty, which was claimed to be valid and complete without that concurrence, and the refusal of a call for papers had very naturally a tendency to give a bias to the minds of some gentlemen against the Treaty; for himself, he was fully satisfied the Legislature had no constitutional connection with the business of making Treaties. Mr. C. said he should attempt to run through the objections which had been made to the Treaty, and consider its merits independently of the peculiar circumstances under which it was now presented to the committee, and then give his own view of it as relative to those peculiar circumstances. The objects of the negotiation, he said, very naturally were divided into three parts--the inexecution of the Treaty of 1783; mutual complaints between the United States and Great Britain relative to transactions independent of the Treaty; and arrangements for the intercourse between the two nations, commercial and political. But as gentlemen had made their objections generally in the order in which the several articles of the Treaty had been arranged, he should follow the same order in his observations in answer to them. The first objection which had been made was, that no compensation had been stipulated to the United States for the supposed breach of the Treaty of 1783, in carrying off the negroes. This objection, he had supposed, was so completely answered by his colleague, (Mr. HILLHOUSE,) who had been up the day before, that he should not have added on that head, but that he had since found gentlemen still insisting on that objection. He was particularly surprised to hear the gentleman from Pennsylvania (Mr. FINDLAY) stating that he conceived the negro article to have been put into the Treaty expressly as a compensation or set-off for the engagement to pay the British debts. This pretension, he thought, had been fully refuted by the extract from Mr. Adams's journal, quoted by Mr. Jefferson in his correspondence with Mr. Hamilton, and which had been read by his colleague. From that extract, it appeared that a claim for negroes and other property which had been plundered, carried off, and destroyed by the British, was made by our commissioners, as a set-off against a claim made by the British commissioners for restoration of confiscated estates; and that the one of those claims was abandoned with the other. Had the gentleman from Pennsylvania taken the pains to examine the journal of Mr. Adams, which might be seen by any member of the committee at the office of the Secretary of State, he would have found how the article came to be inserted. Before the _signing of the Treaties_ with which the extract made by Mr. Jefferson is closed, stands in the original the history of this article in these words: "Mr. Laurens said, there ought to be a stipulation that the British troops should carry off no negroes or other property; we all agreed. Mr. Oswald consented, and _then the Treaties were signed_," _&c._ This, Mr. COIT said, was all the mention he could find respecting this article, except in a subsequent part of the same letter, in which Mr. Adams observes: "I was very happy that Mr. L. came in, although it was the last day of the conferences, and wish he could have been sooner. His apprehension, notwithstanding his deplorable affliction under the recent loss of so excellent a son, is as quick, his judgment as sound, and his heart as firm as ever. He had an opportunity of examining the whole, and judging and approving; and the article which he caused to be inserted at the very last, that no property should be carried off, which would most probably, in the multiplicity and hurry of affairs, have escaped us, was worth a longer journey, if that had been all, but his name and weight is added, which is of much greater consequence." From these extracts, it appeared, the article was not a subject of negotiation, but inserted at the close of the transaction, without discussion, as a matter of course, and which Mr. Adams supposes might, in the multiplicity and hurry of affairs, have been omitted, if Mr. Laurens had not suggested it. Mr. C. said, he would candidly acknowledge that it was very extraordinary to him, that the construction which had been generally put on the article in America, should have so universally prevailed, if it was not the true one, that Congress should have adopted it; and that such should have been the idea of the commissioners appointed to superintend the embarkation at New York, in the year 1783. Still more extraordinary was it to him, to find Mr. Jay himself, when Secretary for Foreign Affairs, in the year 1786, in a report he then made to Congress on the subject, considering the carrying off of those negroes as a violation of the Treaty, and saying further, that he understood from Mr. Adams, then at the Court of London, that the British Minister had no objections to making compensation for them. Still he believed, the true construction of the article was, that it was designed only to prevent plunder by the British troops, and carrying off of American property, according to the ordinary agreements in Treaties, which stipulate for the giving up of conquered countries. True, it might be asked, why say negroes or other property? The expression, he agreed, was not correct, unless a doubt might have been entertained whether negroes were property; but the word negroes must be qualified by other property, with which it is connected, and could operate only as if it had said horses or other property, which no person would contend amounted to a stipulation not to carry off what had once been, but by the laws of war and nations, before the close of the war, had ceased to be the property of American inhabitants. Four gentlemen from Virginia had insisted on this objection, and not one of them had deigned to remark on the construction of the article itself. They had all relied upon the common understanding of it. That this understanding could not change the sense of the article, if it was not doubtful, could not be denied. Their leaving the article and resorting to the common understanding of it, he conceived to be a tacit acknowledgment of the gentlemen, that the instrument itself would not bear the construction they wished to give it. Whether the negotiator had urged this construction of the article, and found he could not obtain its admission, or even an arbitration upon it, he did not know; from his opinion of the good sense and understanding of Mr. Jay, however, he was for himself satisfied that, whatever might have been his former opinions, on attending to the subject, he had found what had been called the American construction was not the just one, and had therefore abandoned it. Mr. C. said, he was aware that the construction he contended for had been called the British construction, and _Camillus's_ construction; that he had himself, however, adopted more than two years ago, the first time he had paid any attention to the article, upon no other impulse or authority than his own judgment, on the perusal of it, and even before he had ever heard of any other construction of it than that he contended against, he was aware that there was a kind of patriotism which claimed every thing for one's country, whether consistently with truth, justice, and candor, or not; for himself, he had no pretensions to such patriotism. He believed Mr. Jay had none, and if he was convinced that the American construction of this article was unfounded, he thought it for his honor, and the honor of this country, that he had abandoned it. When Mr. COIT had concluded-- Mr. S. SMITH rose and said, the subject then before the committee appeared to him to be of an importance at least equal to the great constitutional question which agitated the House during the present session; it has had, and he trusted would continue to have, the same calm attention paid to its discussion. He hoped and expected that it would ultimately be determined with a view to the real interest of the nation, under the existing state of things. When the Treaty was first published he had read it with attention, and although he had not seen all those faults with which it has since been charged, yet there was, to his view, so little good contained in it, and so much of evil to be apprehended from it, that he had felt a hope that the PRESIDENT would not have ratified it. He had been disappointed, yet he had not a doubt but the PRESIDENT, after the most mature consideration, had given his signature; being possessed, as he was, of every information relative to a subject so very important, he could better determine on the policy of its adoption than those who were less informed. Still there were many articles, particularly the commercial, which every man might judge of from the face of the instrument. On these he did not hesitate to give an opinion: which was, that they promise not one solitary advantage, and shackle our commerce in many important points. He would not trouble the committee with going deeply into a subject that has already been so ably discussed. He, however, could not refrain from a few remarks on the right to countervail our extra duties on tonnage of goods imported in foreign bottoms. He asked what would this countervail be? Could any man tell? It was not specified in the article; it was then discretionary with the British; discretionary with a nation whose rule of right has always been the measure of its power, whose conduct has invariably been to cramp and distress the commerce of all other nations. To such a nation was it proper to trust a latitude of that extent? Will she make her countervail oppressive and unjust? It is more than probable she will, and if she should, what remedy have we? None: for we are forbidden by the same article to legislate further on the subject. He said he would take leave to explain the 13th article which relates to the East India trade, and which it has been said gives such solid advantage as to counterbalance all the evils arising out of the Treaty. He had taken some pains to inform himself on this subject, and he had found that the Americans, in common with all other nations, traded to the British and other ports of India, and were every where received with that sort of kindness which grows out of the interest that the vender has in selling his goods for ready money, and to a great profit; that our trade is so much the interest of the India Company, and of all its officers and factors, as well as of the private traders residing there; that it was ridiculous to suppose the India Company would prevent it; and, if they should, what would be the evil? Little or none; for there were other ports, belonging either to other European powers or to the natives, in the neighborhood of all the English ports, who would receive us with open arms, and supply us for our silver, on terms equal, or nearly so. He then stated that our ships could now carry from one port in India to another, to China, or to Europe; an employment that had been found very lucrative. Under the Treaty they must proceed with whatever they purchase in an English port direct to America. The article says, His Majesty consents to your trade to India, and this is called a boon. It appeared to him just as ridiculous as if his Majesty had said, he consented to our going to Great Britain to purchase its manufactures. To enumerate the many faults he found with the Treaty, as well of omission as commission, would take up too much of their precious time; yet he trusted he should be excused for taking a short view of its leading features. When the envoy was sent to Great Britain, he was principally to demand restitution for the cruel depredations committed on our commerce. We find that object attended to so vaguely that our best-informed men seem doubtful whether much will ever be recovered under the Treaty; they find that in every instance the loser must first pursue his remedy through their tedious and expensive Courts. We find, that by fair construction, we have acknowledged ourselves to have been the infractors of the Treaty of Peace; for what was the ground on which some of the States placed legal impediments to the recovery of British debts? Why, that Lord Dorchester had refused to deliver up or pay for the negroes which, by that Treaty, ought to have been restored, and which slaves would have assisted their masters by their labor to pay those debts; yet we see no mention of them in the Treaty; and we find, to our surprise, men, since this Treaty, defending the construction lately put on the Treaty of Peace by the British, and which had never before been heard of; thus acquiescing in the charge of our being the first aggressors. But this only relates to our honor, and of course can be of little consequence to a nation whose rule of conduct is to submit to every thing, provided, that on the whole account, there appears to be a balance of profit in its favor. After having thus formed his opinion relative to the Treaty, his next inquiry was, is the Treaty constitutional? On that point he had held himself open to conviction, and waited its discussion. He had not heard any gentleman declare it unconstitutional, except one, (Mr. PAGE,) who seemed to give his opinion as if he still doubted; and having carefully considered the subject, he was now of opinion that there was nothing directly repugnant to the constitution in the instrument. He then inquired whether, under the existing state of things, the Treaty ought to be rejected? whether it contained stipulations so extremely injurious to the United States as ought to induce the House of Representatives to reject a compact made by the other branches of the Government? In the ten first articles, which are permanent, he found some objections. The third article, which, like many others, cannot be well understood, seems to say that goods imported in British bottoms to the ports of the Lakes, shall pay extra duty. If this be a true construction, it will then be necessary to repeal our restraining duties, to make the Treaty by law consistent with the constitution, which requires that all duties shall be equal. The tenth article ties our hands against sequestration, a power which ought not to be exercised, except on some very extraordinary occasions; yet it was a power which, considering our relative situation to Great Britain, it was imprudent to part with; still, on fair consideration, he did not find that there was sufficient cause, on the account, to reject the Treaty, in the situation we are now placed. The residue will expire in two or three years. TUESDAY, April 26. _Execution of British Treaty._ Mr. DWIGHT FOSTER observed, that as the subject before the committee had been minutely discussed, it was not to be expected any new arguments, either on the one side or the other, would be adduced. Hitherto, he had been silent--though silent, he had not been inattentive--he had listened with candor to every thing which had been offered; he had formed his opinion upon serious deliberation, and was ready to give it whenever the question should be taken. When the resolution requesting the PRESIDENT to lay before the House a copy of the instructions, correspondence, and other documents relative to this Treaty, was under consideration, Mr. F. observed, that he had intended to have expressed his sentiments on the subject; but the great length of time which was spent in that discussion, and the extreme impatience discovered by many members to have the question taken, induced him, as it might several others, to be content with expressing a silent vote, as he did with the minority, on that occasion. This he was the more willing to do, as it was then well known that the Treaty itself would be before the House; that some appropriations would be requisite, on their part, to carry it into effect; and, it was not to be doubted but every gentleman who wished to express his opinion would have an opportunity. The time had now arrived, and several days had been spent already, he believed not unprofitably, in deliberating on an instrument which had been the cause of great agitation in the United States. He was heretofore one of those who considered the negotiation as advisable; it appeared to him the only means by which the horrors of war were to be avoided. He therefore rejoiced when the PRESIDENT appointed an Envoy for the purpose of negotiation; nor did he yet find any reason to apprehend the measure was injudicious. Far otherwise. He believed it was right, proper, and advisable; and that the result would prove highly advantageous and fortunate for our country. He further said, that he had critically examined the various articles of the Treaty; that he had weighed the arguments for and against them, jointly and severally; that he had considered them all with the attention their importance required; and though, in some instances, we might have wished an extension of advantages on our side, he was bound, in conscience, to declare that he thought the Treaty as beneficial to us as we had a right to expect. The right of the PRESIDENT, by and with the advice and consent of the Senate, to make Treaties, is a principle clearly defined by the constitution. Not a single power delegated by the constitution to any one branch of the Government is defined in terms more explicit, or less liable to be misunderstood, than those which define the Treaty-making power of the United States; and, during the whole course of the former and present debates, Mr. F. observed, he had not been able to raise a doubt in his own mind on the subject. The Treaty under consideration had been duly made and ratified by the proper authority, constituted for this purpose by the people of the United States; as such it was now before the committee and demanded their serious attention and respect. The subject was allowed by all to be of importance. To him it appeared more momentous than any other which, at any time since the establishment of the Government, had engrossed the attention of Congress. He viewed it not as a question of peace or war only, but as involving questions of far greater magnitude. He meant the present unexampled prosperity of this country, our political happiness, our excellent constitution, and probably, in its consequences, the existence of the national Government. Mr. KITCHELL said, he could throw no new light upon the subject under discussion; he wished only to express a few ideas which would lead him to support the resolution in its present form. He did not believe the Treaty to be that box of Pandora, which was to scatter evils of every kind upon the land. He believed there were stipulations in favor of the United States, as well as in favor of Great Britain; and when the Ministers of the two nations enter into contract, it must be expected that stipulations will be agreed to on each side which will not appear perfectly satisfactory to either, as certain concessions must be made on both sides. He would mention only the probable consequences of rejecting the Treaty. The disposition of the two nations towards each other at the time of entering into negotiation was well known. The spoliations and injuries done to the American vessels had wound up American resentment to the highest pitch. Happily for America, Britain saw cause to change her system of aggression. He believed, with some other gentlemen, that Britain had not only formed the plan of crushing the rising liberties of France, but also of extending her views to America; but, from a reverse of fortune, she found it necessary to employ all her resources against France. There was another thing, the people of England were clamorous on account of the injuries done to the vessels of America; they were seen to be unjust, and were publicly reprobated. These circumstances were favorable to our negotiation, and he believed they could at no time have got a better Treaty, than at the time the present was agreed upon. He said, they had only three alternatives. Either to give aid to the Treaty, continue to bear the insults of Great Britain, or else to determine resolutely on the dernier resort, war. Mr. GRISWOLD said, that in his opinion, the extensive view which the committee were taking of the merits of the Treaty with Great Britain was unwarranted by the Constitution of the United States; that he did not believe any part of the Treaty-making power had been delegated to the House of Representatives; and that the committee might with as much propriety examine the merits of the constitution itself, for the purpose of deciding whether they would execute it or not, as to examine the Treaty in the manner which had been adopted in the committee. He had, on a former occasion, delivered his opinions on that subject, and he would not attempt to repeat them; but since the committee had thought proper to take an extensive view of the merits of the Treaty, he would follow the example which had been set him, and submit a few observations upon that subject--more particularly as he believed that no discussion would prove injurious to that instrument. He should not, however, attempt to take a very extensive view of the subject, as gentlemen who had preceded him had exhausted almost every part of the subject and left little to be said at that period of the debate. Mr. G. said the Treaty embraced three great objects: 1. The execution of those parts of the Treaty of 1783, which remained unexecuted. 2. The settlement of disputes. 3. Stipulations for regulating the commercial and other intercourse between the two nations. He said that it would be agreed on every side of the House that these objects were important; and if they had been justly and fairly secured by the stipulations of the Treaty, it would not be said that the committee ought to feel dissatisfied with that instrument. He believed that this was really the case, and that the United States had no just cause to complain of the terms therein contained. Several objections, however, had been made to that part of the Treaty which provided for the execution of the Treaty of 1783. It had been said that this Treaty did not provide for every part of the Treaty of Peace which remained unexecuted; and that conditions were annexed to the execution of those parts of that Treaty which had been provided for highly injurious to the interest of the United States. He said, if those objections were well founded, they formed a very serious objection to the present Treaty: but he could not find them by comparing or examining the two Treaties. The only article of the Treaty of Peace which it was said had been violated by the British Government, and was not provided for by the present Treaty, was that which respected the negroes and other property of the American inhabitants. He said he would not detain the committee with many remarks on this part of the subject, as it had been very fully and ably explained by gentlemen who had gone before him: he only mentioned it for the purpose of reading that part of the journal of Mr. Adams, one of the American negotiators of the peace, which immediately related to this subject. The same journal had been already read by different gentlemen, in detached parts, but he wished to bring the whole journal at one view before the committee. He said, however, that he ought to repeat what had been already said on the floor, that the article in question did not want any exterior aid to assist the committee with an explanation. The words of the article were certain and explicit; they declared that the evacuation should be made "without carrying away any negroes or other property belonging to the American inhabitants;" and as it was universally agreed that the negroes who had been carried away consisted either of those who had fled from their masters during the war, on a promise of emancipation, or of those who had been taken as plunder in the period of hostility, no doubt could exist but that in all those cases the property in the negroes was changed; that they were no longer the property of American inhabitants, and of course it was no violation of the Treaty to carry them away. And whatever might have since been said on that subject, he was convinced that the American Commissioners, at the close of the negotiation, had no idea of including in the Treaty of Peace a stipulation to secure a restoration of negroes then in the possession of the British army. To evince this fact, he said he would now read the journal he had before alluded to. [He read some paragraphs from that journal.] Mr. G. said that it appeared, from the journal he had read, on what ground the negotiation respecting the negroes stood. The British agent claimed a restitution of confiscated estates. To rebut this demand, the American Commissioners, among other things, claimed compensation for negroes and other property which had been taken as plunder in different periods of the war. Finding, however, that no agreement could be obtained on these contested points, they were all relinquished as impracticable; and the claim for negroes, which had been made for no other purpose than to rebut the claim for confiscated estates, was given up of course, and, at the moment of signing the Treaty, the article in question was inserted--not to secure a restitution of property which had been changed by the events of the war, but to secure by stipulation, that the evacuations should be made without any destruction, or carrying away property really belonging to the American inhabitants. He said that it had always been a matter of surprise to him that any gentleman had put a different construction on this article; and he thought the parties had done wisely in excluding from the present Treaty a claim which did not possess even the shadow of justice. Mr. GALLATIN said he would not follow some of the gentlemen who had preceded him, by dwelling upon the discretion of the Legislature--a question which had already been the subject of their deliberation, and been decided by a solemn vote. Gentlemen who had been in the minority on that question might give any construction they pleased to the declaratory resolution of the House; they might again repeat that, to refuse to carry the Treaty into effect, was a breach of the public faith, which they conceived as being pledged by the PRESIDENT and Senate. This had been the ground on which a difference of opinion had existed since the beginning of the discussion. It was because the House thought the faith of the nation could not, on those subjects submitted to the power of Congress, be pledged by any constituted authority other than the Legislature, that they had resolved that, in all such cases, it was their right and duty to consider the expediency of carrying a Treaty into effect. If the House thought the faith of the nation already pledged, they could not claim any discretion; there would be no room left to deliberate upon the expediency of the thing. The resolution now under consideration was merely "that it was expedient to carry the British Treaty into effect," and not whether they were bound by national faith to do it. He would, therefore, consider the question of expediency alone; and, thinking as he did, that the House had full discretion on the subject, he conceived that there was as much responsibility in deciding in the affirmative as in rejecting the resolution; that they would be equally answerable for the consequences that might follow from either. It was, however, true that there was a great difference between the situation of this country in the year 1794, when a negotiator was appointed, and that in which we were at present; and that consequences would follow the refusal to carry into effect the Treaty in its present stage, which would not have attended a refusal to negotiate, and enter into such a Treaty. The question of expediency, therefore, assumed before them a different and more complex shape than when before the negotiator, the Senate, or the PRESIDENT. The Treaty, in itself, and abstractedly considered, might be injurious; it might be such an instrument as, in the opinion of the House, ought not to have been adopted by the Executive; and yet, such as it was, they might think it expedient, under the present circumstances, to carry it into effect. He would, therefore, first take a view of the provisions of the Treaty itself, and in the next place, supposing it injurious, consider, in case it was not carried into effect, what would be the natural consequences of such refusal. The provisions of the Treaty relate either to the adjustment of past differences or to the future intercourse of the two nations. The differences now existing between Great Britain and this country arose either from the non-execution of some articles of the Treaty of Peace, or from the effects of the present European war. The complaints of Britain in relation to the Treaty of 1783 were confined to the legal impediments thrown by the several States in the way of the recovery of British debts. The late Treaty had provided adequate remedy on that subject; the United States were bound to make full and complete compensation for any losses arising from that source, and every ground of complaint on the part of Great Britain was removed. Having thus done full justice to the other nation, America had a right to expect that equal attention should be paid to her claims arising from infractions of the Treaty of Peace, viz: compensation for the negroes carried away by the British; restoration of the Western posts, and indemnification for their detention. On the subject of the first claim, which had been objected to as groundless, he would observe, that he was not satisfied that the construction given by the British Government to that article of the Treaty was justified even by the letter of the article. That construction rested on the supposition that slaves came under the general denomination of booty, and were alienated the moment they fell in the possession of an enemy, so that all those who were in the hands of the British when the Treaty of Peace was signed, must be considered as British, and not American property, and were not included in the article. It would however appear by recurring to _Vattel_, when speaking of the right of _postliminium_, that slaves were not considered as part of the booty which was alienated by the act of capture, and that they were ranked rather with real property, to the profits of which only the captors were entitled. Be that as it may, there was no doubt that the construction given by America was that which had been understood by the parties at the time of making the Treaty. The journals of Mr. Adams, quoted by a gentleman from Connecticut, (Mr. COIT) proved this fully; for when he says that the insertion of this article was alone worth the journey of Mr. Laurens from London, can it be supposed that he would have laid so much stress on a clause which, according to the new construction now attempted to be given, meant only that the British would commit no new act of hostility? would not carry away slaves at that time in possession of Americans? Congress had recognized that construction by adopting the resolution which had been already quoted, and which was introduced upon the motion of Mr. Alexander Hamilton; and it had not been denied that the British Ministry, during Mr. Adams's embassy, had also agreed to it. But when our negotiator had, for the sake of peace, waived that claim; when he had also abandoned the right which America had to demand an indemnification for the detention of the posts, although he had conceded the right of a similar nature, which Great Britain had for the detention of debt; when he had thus given up every thing which might be supposed to be of a doubtful nature, it might have been hoped that our last claim--a claim on which there was not and there never had been any dispute--the Western posts should have been restored according to the terms of the Treaty of Peace. Upon what ground the British had insisted, and our negotiator conceded, that this late restitution should be saddled with new conditions, which made no part of the original contract, Mr. G. was at a loss to know. British traders were all allowed, by the new Treaty, to remain within the posts without becoming citizens of the United States, and to carry on trade and commerce with the Indians living within our boundaries, without being subject to any control from our Government. In vain was it said, that if that clause had not been inserted we would have found it our interest to effect it by our own laws. Of this we were alone competent judges; if that condition was harmless at present, it was not possible to foresee whether, under future circumstances, it would not prove highly injurious; and, whether harmless or not, it was not less a permanent and new condition imposed upon us. But the fact was, that by the introduction of that clause, by obliging us to keep within our jurisdiction, as British subjects, the very men who had been the instruments used by Great Britain to promote Indian wars on our frontiers,--by obliging us to suffer those men to continue their commerce with Indians living in our territory, uncontrolled by those regulations, which we had thought necessary, in order to restrain our own citizens in their intercourse with these tribes, Great Britain had preserved her full influence with the Indian nations; by a restoration of the posts under that condition, we had lost the greatest advantage that was expected from their possession, viz: future security against the Indians. In the same manner had the British preserved the commercial advantages which resulted from the occupancy of these posts, by stipulating as a permanent condition a free passage for their goods across our portages, without paying any duty. The remaining provisions of the Treaty had no connection with past differences; they made no part of the Convention which had been the avowed object of Mr. Jay's mission; they applied solely to the future intercourse of the two nations as relating to commerce and navigation; and had they been entirely omitted, our differences would have been nevertheless adjusted. It was agreed on all hands, that so far as related to our commerce with Great Britain, we wanted no Treaty. The intercourse, although useful perhaps to both parties, was more immediately necessary to England, and her own interest was a sufficient pledge of her granting us at all times a perfect liberty of commerce to her European ports. If we want to treat with her, it must be in order to obtain some intercourse with her colonies, and some general security in our navigation. The twelfth and thirteenth articles had been obtained by our negotiator with a view to the first object. The twelfth article, however, which related to our intercourse with the West Indies, was found, upon examination, to be accompanied by a restriction of such a nature, that what had been granted by Great Britain as a favor, was rejected by the Senate as highly injurious. The thirteenth article, which related to the East Indies, and remained part of the Treaty, was, like the twelfth, conferring a favor limited by restrictions, and so far as he could depend upon the opinion of the best-informed judges on that subject, those restrictions put the trade in a more disadvantageous situation than it was before the Treaty. As the West India article had declared that we should not re-export any produce of those islands to Europe, so the East India article, at the same time it granted us the privilege, which we enjoyed before, and which we enjoyed because it was the interest of the East India Company to grant it to us, that of being admitted in the British seaports there, had forbidden our carrying any articles from thence to any place except to America; which regulation amounted to a total prohibition to export East India articles to China, or to obtain freights back to Europe; and, upon the whole, he could not help thinking, from what had fallen on that floor, and what he had heard elsewhere from gentlemen of great commercial knowledge, that if the East India commerce had been as generally understood in America as the West India trade, that so much boasted of article would have met the same fate in the Senate with the twelfth article. During the American war, in the year 1780, so fully convinced were the neutral nations of the necessity of introducing that doctrine of free bottom making free goods, that all of them, excepting Portugal, who was in a state of vassalage to, and a mere appendage of Great Britain, had united in order to establish the principle, and had formed for that purpose the alliance known by the name of the Armed Neutrality. All the belligerent powers, except England, had recognized and agreed to the doctrine. England itself had been obliged, in some measure, to give for a while a tacit acquiescence. America had completely, at the time, admitted the principle, although they were then at war, [Mr. G. quoted on this subject the Journals of Congress of the year 1780, page 210, and of the year 1781, page 80,] and it had been introduced in every other Treaty we had concluded since our existence as a nation. Since the year 1780, every nation, so far as his knowledge went, had refused to enter into a Treaty of Commerce with England, unless that provision was inserted. Russia, for that reason, would not renew their Treaty, which had expired in 1786, although he believed that, during the present war, and in order to answer the ends of the war, they had formed a temporary convention, which he had not seen, but which, perhaps, did not include that provision. England had consented to it in their Treaty with France in 1788, and we were the first neutral nation who abandoned the common cause, gave up the claim, and, by a positive declaration inserted in our Treaty, had recognized the contrary doctrine. It had been said, that under the present circumstances, it could not be expected that Great Britain would give up the point: perhaps so; but the objection was not, that our negotiator had not been able to obtain that doctrine, but that he had consented to enter into a Treaty of Commerce (which we did not want, and which had no connection with an adjustment of our differences with Great Britain) without the principle contended for making part of that Treaty. Unless we could obtain security for our navigation, we wanted no Treaty; and the only provision which could give us that security, should have been the _sine qua non_ of a Treaty. On the contrary, we had disgusted all the other neutral nations of Europe, without whose concert and assistance there was but little hope that we should ever obtain that point, and we had taught Great Britain that we were disposed to form the most intimate connections with her, even at the expense of recognizing the principle the most fatal to the liberty of commerce, and to the security of our navigation. Mr. G. was not going to enter into a discussion of the immorality of sequestering private property. What could be more immoral than war? or the plundering of the high seas legalized under the name of privateering? Yet self-defence justified the first, and the necessity of the case might, at least in some instances, and where it was the only practicable mode of warfare left to a nation, apologize even for the last. In the same manner the power of sequestration might be resorted to, as the last weapon of self-defence, rather than to seek redress by an appeal to arms. It was the last peace-measure that could be taken by a nation; but the Treaty, by declaring that in case of national differences it should not be resorted to, had deprived us of the power of judging of its propriety, had rendered it an act of hostility, and had effectually taken off that restraint which a fear of its exercise laid upon Great Britain. Thus it appeared that, by the Treaty, we had promised full compensation to England for every possible claim they might have against us, that we had abandoned every claim of a doubtful nature, and that we had consented to receive the posts, our claim to which was not disputed, under new conditions and restrictions never before contemplated. That, after having obtained, by those concessions, an adjustment of past differences, we had entered into a new agreement, unconnected with those objects, which had heretofore been subjects of discussion between the two nations; and that, by that Treaty of Commerce and Navigation, we had obtained no commercial advantage which we did not enjoy before; we had obtained no security against future aggressions, no security in favor of the freedom of our navigation, and we had parted with every pledge we had in our hands, with every power of restriction, with every weapon of self-defence, which was calculated to give us any security. From the review he had taken of the Treaty, and the opinions he had expressed, Mr. G. said, it was hardly necessary for him to add that he looked upon the instrument as highly injurious to the interests of the United States, and that he earnestly wished it never had been made; but whether, in its present stage, the House ought to refuse to carry it into effect, and what would be the probable consequences of a refusal, was a question which required the most serious attention, and which he would now attempt to investigate. Should the Treaty be finally defeated, either new negotiations would be more successful, or Great Britain would refuse to make a new arrangement, and leave things in the situation in which they were, or war would be the consequence. Mr. G. said that he would, in the course of his observations, make some remarks on the last supposition; he did not think that the first would be very probable at present, and he was of opinion that, under the present circumstances, and until some change took place in our own or in the relative political situation of the European nations, it was to be apprehended that, in such a case, new negotiations would either be rejected or prove unsuccessful. Such an event would have perhaps followed a rejection of the Treaty even by the Senate or by the PRESIDENT. After the negotiator employed by the United States had once affixed his signature, it must have become very problematical, unless he had exceeded his powers, whether a refusal to sanction the contract he had made would not eventually defeat, at least for a time, the prospect of a new Treaty. He conceived that the hopes of obtaining better conditions, by a new negotiation, were much less in the present stage of the business than they had been when the Treaty was in its inchoate form before the Executive; and in order to have a just idea of the consequences of a rejection at present, he would contemplate them upon that supposition which appeared to him most probable, viz: that no new Treaty would take place for a certain period of time. As he was not sensible that a single commercial advantage had been obtained by the Treaty, he could not mention the loss of any, as a mischief that would attend its rejection. If, however, the East India article was supposed to be beneficial, it must, on the other hand, be conceded that we had enjoyed every benefit arising from it for a number of years, without Treaty, and consequently, because it was the interest of the East India Company that we should enjoy them; and that it was not probable that circumstances would so far change there, during the short period to which that article was limited, as to induce that Company to adopt a different policy towards us. But it was said that war must be the consequence of our delaying to carry the Treaty into effect. Did the gentlemen mean that, if we rejected the Treaty, if we did not accept the reparation there given to us, in order to obtain redress, we had no alternative left but war? If we must go to war in order to obtain reparation for insults and spoliations on our trade, we must do it, even if we carry the present Treaty into effect; for the Treaty gives us no reparation for the aggressions committed since it was ratified, has not produced a discontinuance of those acts of hostility, and gives us no security that they shall be discontinued. But the argument of those gentlemen, who supposed that America must go to war, applied to a final rejection of the Treaty, and not to a delay. He did not propose to refuse the reparation offered by the Treaty, and to put up with the aggressions committed; he had agreed that that reparation, such as it was, was a valuable article of the Treaty; he had agreed that, under the present circumstances, a greater evil would follow a total rejection than an acquiescence to the Treaty. The only measure which had been mentioned in preference to the one now under discussion, was a suspension, a postponement whilst the present spoliations continued, in hopes to obtain for them a similar reparation, and assurances that they would cease. But, was it meant to insinuate that it was the final intention of those who pretended to wish only for a postponement, to involve this country in a war? There was no period of the present European war at which it would not have been weak and wicked to adopt such measures as must involve America in the contest, unless forced into it for the sake of self-defence; but, at this time, to think of it, would fall but little short of madness. The whole American nation would rise in opposition to the idea; and it might, at least, have been recollected that war could not be declared except by Congress, and that two of the branches of Government were sufficient to check the other in any supposed attempt of that kind. But to the cry of war, the alarmists did not fail to add that of confusion; and they had declared, even on this floor, that if the resolution was not adopted, Government would be dissolved. Government dissolved in case a postponement took place! This idea was too absurd to deserve a direct answer. But he would ask those gentlemen, by whom the Government was to be dissolved? Certainly not by those who would vote against the resolution; for, although they were not, perhaps, fortunate enough to have obtained the confidence of the gentleman who voted against them, still, it must be agreed, that those who succeeded in their wishes, who defeated a measure they disliked, would not wish to destroy that Government, which they held, so far, in their hands, as to be able to carry their own measures. For them to dissolve the Government would be to dissolve their own power. By whom, then, he would ask again, was the Government to be dissolved? The gentlemen must answer, by themselves, or they must declare that they meant nothing but to alarm. Was it really the language of those men, who professed to be, who distinguished themselves by the self-assumed appellation of friends to order, that if they did not succeed in all their measures, they would overset the Government? And had all their professions been only a veil to hide their love of power? a pretence to cover their ambition? Did they mean, that the first event which would put an end to their own authority should be the last act of Government? As to himself, he did not believe that they had such an intention; he had too good an opinion of their patriotism to permit himself to admit such an idea for a single moment; but he thought himself justifiable in entertaining a belief, that some amongst them, in order to carry a favorite, and what they thought to be an advantageous measure, meant to spread an alarm, which they did not feel; and he had no doubt that many had contracted such a habit of carrying every measure of Government as they pleased, that they really thought that every thing must be thrown into confusion the moment they were thwarted in a matter of importance. He hoped that experience would, in future, cure their fears. But, at all events, be the wishes and intentions of the members of this House what they may, it was not in their power to dissolve the Government. The people of the United States, from one end of the continent to the other, were strongly attached to their constitution; they would restrain and punish the excesses of any party, of any set of men in the Government, who would be guilty of the attempt; and on them he would rest as a full security against every endeavor to destroy our Union, our constitution, or our Government. But, although he was not afraid of a dissolution, he felt how highly desirable a more general union of sentiment would be; he felt the importance of an agreement of opinion between the different branches of Government, and even between the members of the same branch. He would sacrifice much to obtain that object; it had been one of the most urging motives with him to be in favor, not of a rejection, but only of a suspension, of a delay. But even as a matter of opinion, it was difficult to say which mode of proceeding, in this House, would best accord with the general sentiments of the people. So far as related to the petitions before them, the number of signatures against the Treaty exceeded, at the moment he was speaking, the number of those in favor of the Treaty. True it was, that an alarm which had produced a combination, had lately taken place amongst the merchants of this and some other seaports. What effect it would have, and how successful they would eventually be, in spreading this alarm amongst the people at large, he could not tell; but there were circumstances accompanying their petition, which, in his opinion, much diminished the weight they otherwise might have had. They had, undoubtedly, a right to petition upon every public measure, where they thought themselves interested, and their petitions would deserve equal regard, with those of their fellow-citizens throughout the United States. But on this occasion, in order to create an alarm, in order to induce the people to join them, in order to force the House to pass the laws relative to the Treaty, they had formed a dangerous combination, and affected to cease insuring vessels, purchasing produce, and transacting any business. A gentleman from New York (Mr. WILLIAMS) had been so much alarmed himself, that he had predicted a fall in the price of every kind of produce, and seems, indeed, to have supposed, that the clamors of a few individuals here would either put an end to, or satisfy the wants of those nations which depended on us for supplies of provisions. Yet, it had so happened, and it was a complete proof that the whole was only an alarm, that whilst they were debating, the price of flour, which was of very dull sale two weeks ago, had risen in equal proportion with the supposed fears of the purchasers. He could not help considering the cry of war, the threats of a dissolution of Government, and the present alarm, as designed for the same purpose, that of making an impression on the fears of this House. It was through the fear of being involved in a war, that the negotiation with Great Britain had originated; under the impression of fear, the Treaty had been negotiated and signed; a fear of the same danger, that of war, had promoted its ratification; and now, every imaginary mischief which could alarm our fears, was conjured up, in order to deprive us of that discretion, which this House thought they had a right to exercise, and in order to force us to carry the Treaty into effect. _The Son of the Marquis Lafayette._ Mr. LIVINGSTON, Chairman of the committee for carrying into effect a resolution respecting the son of the Marquis LAFAYETTE, reported that he had arrived in this country; that he had received the patronage of the PRESIDENT OF THE UNITED STATES; that he was in New Jersey for education, and to show that he had no occasion for pecuniary assistance, the committee subjoin a well-written, affecting letter to the Chairman of the committee, in answer to one from him, expressive of his gratitude for the kind attention shown to him by the Legislature of the United States, by the PRESIDENT, and to every person to whom he was made known; that he had no wants; that he was as happy as he could be; that if he should in future have occasion for assistance, he would apply to Congress, who had been so kind and attentive to his welfare.[77] THURSDAY, April 28. _Execution of British Treaty._ The House then resolved itself into a Committee of the Whole on the state of the Union; when, the resolution for carrying the British Treaty into effect being under consideration---- Mr. PRESTON rose and spoke as follows: Mr. Chairman, I voted for the question yesterday, for the first time since this discussion began. I was then prepared to give my opinion, but, since the House has thought proper to devote another day to this important subject, I will take the liberty to offer my sentiments, and claim the indulgence of the committee for this purpose. I make this claim for their indulgence with the more confidence, as I have heretofore occupied but little of the time of the House on any occasion, and as I mean to be short on the present--not intending to take that comprehensive view of the subject which many gentlemen have done who have preceded me. With this apology I will proceed, conceiving, however that no apology is necessary on this or any other occasion where our duty impels us to come forward. But I must confess it has been painful to me to hear the recriminations that have taken place on this occasion. I had hoped, on a subject so important, on which it is said the peace and happiness of this our common country rests--whose welfare must be equally dear to all--that temperance and calmness would have marked our deliberations; that all our efforts would have been made to enlighten the minds and convince the judgments of each other, instead of lessening one another in our estimation, and that of our constituents, by dishonorable imputations, and which, I trust, every member would spurn. As to myself, Mr. Chairman, I stand here regardless of any imputations that ill-nature may cast upon me in this House, or abuse which may be conferred without doors. I shall not be deterred from pronouncing that opinion which my best reflections have enabled me to form. Sir, in considering this subject, I had hoped every information possessed by any of the departments of Government would have been freely afforded us; and I cannot but lament that the PRESIDENT, by a too strict adherence to what he has supposed to be his constitutional duty, refused the request of this House for certain papers, which request seemed to me not only proper, but innocent--proper, because they might have afforded information that would reconcile many of the objections entertained of the Treaty, and finally produce its adoption; it was innocent, because, if there was no unfair procedure respecting this business, why not publish the transaction to the world--at all events to the Representatives of the people, who, it is acknowledged by all, were not only to act on the Treaty in some way, but were intrusted with the management of some of the dearest rights of their fellow-countrymen? If, then, the people confide in us such important concerns, might not the Executive have reposed some degree of confidence, and complied with a request so decorously and respectfully made? But he has told us his duty forbids it. We are then reduced to the necessity to judge of the thing from the face of it, without the wished-for information. And I must confess it has always presented such a hideous and deformed aspect to my mind, that I have ever disliked it--which, together with the unfriendly sentiments of my constituents to it, has produced my prejudices. But I had determined, as the PRESIDENT and Senate had ratified it, and many approved it, to keep my mind open for every information the subject was capable of. As, then, none has been offered to operate a change of my opinion, and as the most likely source is shut against us, my prejudices, instead of being lessened, have become firmly fixed in the opposition. But we are told the British committed no infraction of the Treaty of 1783, by withholding the posts; for we, having thrown legal impediments in the way of the recovery of their debts, became the first infractors thereof, whereby they were left free to comply or not. Let us, for a moment, inquire into this fact. By the 4th article of that Treaty, creditors on either side were to meet with no legal impediment to the recovery of their debts. By the 7th article of the same Treaty, His Majesty was, with all convenient speed, to withdraw his armies and garrisons from every post and place. Now, sir, on comparing these articles, can it be presumed by any one that the latter stipulation was to remain unexecuted until the creditors recovered their debts? Was it to remain as a pledge for the performance of the other? No one can entertain the idea for a moment. Suppose the creditors had gone on in the collection of their debts without interruption, would it be said that the stipulations of the 7th article would be suspended until all the creditors were wholly satisfied? It is absurd, particularly when we reflect that the commissioners who negotiated that Treaty must have contemplated the recovery of those debts by lawsuits; therefore, if the latter clause was intended to coerce the former, we would certainly not have had the insertion of the words "with all convenient speed," which implies an early compliance. If the opposite construction was just, I would venture to say, the British Government would never have agreed to surrender the posts, but in consequence of such concessions as it now gets; for it would have the advantages of the fur trade, and the faith of this country pledged for the payment of the debts, which were accumulating by interest. This was a pleasing situation; but what was the situation of the British debtors? Deprived of their negroes, which were to be returned by the Treaty; deprived of the advantages of the trade with the Indians, whereby they might be enabling themselves to discharge those debts; harassed and worn down with taxation, to support the Indian wars excited by their creditors. In this situation of things, was it not natural for them to look around for security or indemnity against these evils; and would any thing more naturally present itself, than withholding the payment of the money to the very cause of these evils? None, sir; and I cannot conceive it so dishonorable as some gentlemen pretend to view it. But, sir, I will endeavor to show that the laws which were enacted by States for prohibiting the recovery of the British debts, were not an infraction of the Treaty of 1783. By the little book, which the gentleman from Connecticut (Mr. HILLHOUSE) says is so precious, and which he hopes will be preserved for some time to come, we find that Mr. JEFFERSON has, in consequence of complaints from the British Minister, respecting the impediments to the recovery of British debts, inquired into the facts, in those States where the complaints originated; the result of these inquiries was, that though there were State laws prohibiting, yet a number of gentlemen, of the first abilities and great integrity,--generally professional characters, and who have been engaged in proceedings of this kind,--certify, that wherever attempts were made to recover these debts, they have met with no more obstruction than other creditors. Besides, those gentlemen were generally of opinion that, on the final ratification of the Treaty of 1783, it repealed all laws at variance with it. If, then, it had such a powerful attribute as to repeal former laws, it follows as a consequence, that subsequent laws opposing it were mere nullities. These opinions were cited the other day by a gentleman from Massachusetts, (Mr. SEDGWICK,) and relied on. I hope they will have their due weight on the application now to be made of them. So that, on the whole, it does appear to me the British creditor had nothing more to struggle with than other creditors had, except the well-founded prejudices imbibed by our countrymen against that nation, which, though the laws might in some measure correct, they could never eradicate. That these prejudices have produced irregularities in many instances and delay of collections, I have no doubt; but from the nature of things it is well known no foresight or protection could guard against it. Indeed, they might have been expected, for can it be supposed that men would stand calmly and see their families reduced to penury and want by an unrelenting British creditor, who had aided to impair the very means of his debtor to pay, and whose Government was by their acts daily increasing the evils, by exciting the Indians to war against us, whereby our citizens were borne down with burdens to defend themselves? I say, would not such reflections, with ruin before our eyes, produce a degree of irritation in the most calm amongst us? I owe none of these debts, I never did, and I never will, if I can help it. I spurn the idea of involving my country in a debt of an incalculable amount, when millions of them never received any benefit thereby. It is wrong, it is unjust. I again repeat, that it does appear to me, on an impartial view of this subject, that the United States are not chargeable with the first infraction of the Treaty of 1783, and that therefore, we are not bound now to enter into a compact which appears to me to be warranted neither by the principles of reciprocity nor justice. But I undertake to say, and with some confidence too, that Great Britain committed the first infraction of that Treaty, by withholding the posts, and also carrying away the negroes, which she had expressly stipulated to give up; and, to my astonishment, it is now contended that the taking away the negroes was not a violation of the Treaty, as they came into their possession by the rights of war, and being deemed property were vested in the captors. Admit, for a moment, they were that kind of property, and they became as much the property of their captors as any they had possessed themselves of in the same way, what then? Certainly, that it followed of course, they had a right to dispose of them in any way they chose, either to emancipate them, retain them in slavery for their own use, or return them to their original owners. Which of these alternatives have they elected to do? [Here he read the following sentence from the Treaty of 1783.] "And His Britannic Majesty shall, with all convenient speed, and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies," &c., &c. Now, sir, was not the carrying away the negroes a violation of this article? All America once thought so. No other construction ever entered the head of man till this Treaty appeared; owners so construed it, and in virtue thereof made demands. Congress, and even "_Camillus_," once thought so, and so they declared it in the most solemn manner. And so it would be construed by all descriptions of people, from the schoolboy to the Senator, to use the expression of the gentleman from New York, (Mr. COOPER,) had our minds remained in the same state they were in a dozen years ago. Sir, if there be modern constructions of the constitution, I will venture to say there is the same of Treaties. But another clause of the same article justifies my construction, to wit: the leaving in all fortifications the American artillery that may be therein. Gentlemen will hardly say this means fortifications garrisoned by American soldiery; this would be absurd, for it is pretty well known that American artillery guarded itself better than British Treaties did. Was not this artillery, which had fallen into the hands of the enemy, a vested property, till the chances of war or the Treaty had made a disposal thereof? Unquestionably it was. Were not the archives, records, deeds, &c., which had also fallen into the hands of the enemy, their property? There can be no doubt of it. Yet we find these things stipulated to be given up. If, then, they chose to yield one species of property, might they not another? But, it is said, the negroes were not our property at the time of signing the Treaty; so neither did the archives, records, &c., belong to the States--they were the property of the enemy; but certainly the British Minister had as much right to stipulate for the return of the one as for the other, and he has in as explicit terms. This must have been the understanding of the commissioners who negotiated that Treaty, although one of them has been traced to his slumbers, the evening before the sealing the Treaty, for a different construction. So that, in this instance, the British have certainly committed the first infraction, by carrying off the negroes. And is it not extraordinary that, notwithstanding this, no claim is made for them, and yet we are bound to pay the British debts, when the very means of doing it are taken from the debtor by the creditor? Sir, this is a serious oppression, and though not of a very great magnitude, will nevertheless be felt in an interesting manner, and if submitted to will be so under much disquietude. But the rejection of the Treaty is tremendously alarming, indeed. War, and war's alarms, are echoed on all sides. We shall be attacked on one side by savage barbarity; up the Mediterranean by Algerine cruelty; our commerce prostrated, and our cities laid under contribution by the British. In short, the dogs of war let loose on us, and America, once happy America, will become the scene of bloodshed and desolation. Great God! What man is there here that can be wicked enough to involve his country in such incalculable miseries? Who has firmness enough to meet so foul a deed? Particularly when we reflect on the dreadful act we are about to do, that will produce such scenes of horror and devastation! namely, refuse to accept a bargain derogatory to our national honor! This, sir, is to produce the dreadful catastrophe. But the measure of woe is not yet filled. There will be disunion; and American citizens will become American enemies, imbruing their hands in each other's blood. Civil wars will rend our happy country. Heavens! What a shock to suffering humanity here will be! And all about some commercial regulations and political differences with a foreign nation, who, I believe, in principle, is our inveterate enemy. Mr. Chairman, I am one who, though I have but little confidence in the British Government, yet I cannot believe that she, or any other nation on earth, is so arrogant, and lost to every principle of humanity, as to go into such dreadful excesses, because we will not enter into a contract that will suit her interest. I fear war as much as any man, when a pretext is given; but can it be seriously said a rejection of this Treaty is a cause of war? I cannot believe that such can possibly be the event. As to disunion, it is idle to talk of it; for I do believe if, instead of a minority of this House, every man in it were to return home full of spleen and disappointment, and were to use every exertion, every artifice in their power, to bring about a disunion, they would fail in so traitorous an attempt. The people, sir, would scoff them, would turn them out of office, and place therein more deserving characters. As then, Mr. Chairman, I cannot believe that war or disunion will be the result of a rejection of the Treaty, and as I think it is one from which we ought to withhold our assent, I must give it my negative. And if, in this, time shall prove me wrong, I shall lament the error with the greatest sincerity, but I shall have the pleasing consolation to know it was an error of the head, and not of the heart. When Mr. PRESTON had taken his seat-- Mr. AMES rose, and addressed the Chair as follows: Mr. Chairman: I entertain the hope, perhaps a rash one, that my strength will hold me out to speak a few minutes. In my judgment, a right decision will depend more on the temper and manner with which we may prevail on ourselves to contemplate the subject, than upon the development of any profound political principles, or any remarkable skill in the application of them. If we should succeed to neutralize our inclinations, we should find less difficulty than we have to apprehend in surmounting all our objections. The suggestion, a few days ago, that the House manifested symptoms of heat and irritation, was made and retorted as if the charge ought to create surprise, and would convey reproach. Let us be more just to ourselves, and to the occasion. Let us not affect to deny the existence and the intrusion of some portion of prejudice and feeling into the debate, when, from the very structure of our nature, we ought to anticipate the circumstance as a probability, and when we are admonished by the evidence of our senses that it is a fact. How can we make professions for ourselves, and offer exhortations to the House, that no influence should be felt but that of duty, and no guide respected but that of the understanding, while the peal to rally every passion of man is continually ringing in our ears. Our understandings have been addressed, it is true, and with ability and effect; but, I demand, has any corner of the heart been left unexplored? It has been ransacked to find auxiliary arguments, and when that attempt failed, to awaken the sensibilities that would require none. Every prejudice and feeling have been summoned to listen to some particular style of address; and yet we seem to believe, and to consider a doubt as an affront, that we are strangers to any influence but that of unbiased reason. It would be strange that a subject which has roused in turn all the passions of the country, should be discussed without the interference of any of our own. We are men, and, therefore, not exempt from those passions; as citizens and Representatives, we feel the interest that must excite them. The hazard of great interests cannot fail to agitate strong passions: we are not disinterested, it is impossible we should be dispassionate. The warmth of such feelings may becloud the judgment, and, for a time, pervert the understanding; but the public sensibility and our own, has sharpened the spirit of inquiry, and given an animation to the debate. The public attention has been quickened to mark the progress of the discussion, and its judgment, often hasty and erroneous on first impressions, has become solid and enlightened at last. Our result will, I hope, on that account, be the safer and more mature, as well as more accordant with that of the nation. The only constant agents in political affairs are the passions of men--shall we complain of our nature? Shall we say that man ought to have been made otherwise? It is right already, because He, from whom we derive our nature, ordained it so; and because thus made, and thus acting, the cause of truth and the public good is the more surely promoted. But an attempt has been made to produce an influence of a nature more stubborn and more unfriendly to truth. It is very unfairly pretended that the constitutional right of this House is at stake, and to be asserted and preserved only by a vote in the negative. We hear it said that this is a struggle for liberty, a manly resistance against the design to nullify this assembly, and to make it a cypher in the Government. That the PRESIDENT and Senate, the numerous meetings in the cities, and the influence of the general alarm of the country, are the agents and instruments of a scheme of coercion and terror, to force the Treaty down our throats, though we loathe it, and in spite of the clearest convictions of duty and conscience. It is necessary to pause here and inquire, whether suggestions of this kind be not unfair in their very texture and fabric, and pernicious in all their influences? They oppose an obstacle in the path of inquiry, not simply discouraging, but absolutely insurmountable. They will not yield to argument; for, as they were not reasoned up, they cannot be reasoned down. They are higher than a Chinese wall in truth's way, and built of materials that are indestructible. While this remains, it is in vain to argue; it is in vain to say to this mountain, be thou cast into the sea. For, I ask of the men of knowledge of the world, whether they would not hold him for a blockhead that should hope to prevail in an argument whose scope and object it is to mortify the self-love of the expected proselyte? I ask, further, when such attempts have been made, have they not failed of success? The indignant heart repels a conviction that is believed to debase it. The self-love of an individual is not warmer in its sense, or more constant in its action, than what is called in French, _l'esprit de corps_, or the self-love of an assembly; that jealous affection which a body of men is always found to bear towards its own prerogatives and power. I will not condemn this passion. Why should we urge an unmeaning censure, or yield to groundless fears that truth and duty will be abandoned, because men in a public assembly are still men, and feel that spirit of corps which is one of the laws of their nature? Still less should we despond or complain, if we reflect that this very spirit is a guardian instinct that watches over the life of this assembly. It cherishes the principle of self-preservation; and, without its existence, and its existence with all the strength we see it possess, the privileges of the Representatives of the people, and immediately the liberties of the people, would not be guarded, as they are, with a vigilance that never sleeps, and an unrelaxing constancy and courage. If the consequences, most unfairly attributed to the vote in the affirmative, were not chimerical, and worse, for they are deceptive, I should think it a reproach to be found even moderate in my zeal to assert the constitutional powers of this assembly; and, whenever they shall be in real danger, the present occasion affords proof that there will be no want of advocates and champions. Indeed, so prompt are these feelings, and when once roused, so difficult to pacify, that, if we could prove the alarm was groundless, the prejudice against the appropriations may remain on the mind, and it may even pass for an act of prudence and duty to negative a measure which was lately believed by ourselves, and may hereafter be misconceived by others, to encroach upon the powers of the House. Principles that bear a remote affinity with usurpation on those powers will be rejected, not merely as errors, but as wrongs. Our sensibilities will shrink from a post where it is possible they may be wounded, and be inflamed by the slightest suspicion of an assault. While these prepossessions remain, all argument is useless; it may be heard with the ceremony of attention, and lavish its own resources, and the patience it wearies, to no manner of purpose. The ears may be open, but the mind will remain locked up, and every pass to the understanding guarded. Unless, therefore, this jealous and repulsive fear for the rights of the House can be allayed, I will not ask a hearing. I cannot press this topic too far--I cannot address myself with too much emphasis to the magnanimity and candor of those who sit here, to suspect their own feelings, and while they do, to examine the grounds of their alarm. I repeat it, we must conquer our persuasion, that this body has an interest in one side of the question more than the other, before we attempt to surmount our objections. On most subjects, and solemn ones too, perhaps in the most solemn of all, we form our creed more from inclination than evidence. Let me expostulate with gentlemen to admit, if it be only by way of supposition and for a moment, that it is barely possible they have yielded too suddenly to their alarms for the powers of this House; that the addresses which have been made with such variety of forms, and with so great dexterity in some of them, to all that is prejudice and passion in the heart, are either the effects or the instruments of artifice and deception, and then let them see the subject once more in its singleness and simplicity. It will be impossible, on taking a fair review of the subject, to justify the passionate appeals that have been made to us to struggle for our liberties and rights, and the solemn exhortation to reject the proposition, said to be concealed in that on your table, to surrender them for ever. In spite of this mock solemnity, I demand, if the House will not concur in the measure to execute the Treaty, what other course shall we take? How many ways of proceeding lie open before us? In the nature of things there are but three--we are either to make the Treaty--to observe it--or break it. It would be absurd to say we will do neither. If I may repeat a phrase, already so much abused, we are under coercion to do one of them, and we have no power, by the exercise of our discretion, to prevent the consequences of a choice. By refusing to act, we choose. The Treaty will be broken, and fall to the ground. Where is the fitness, then, of replying to those who urge upon this House the topics of duty and policy, that they attempt to force the Treaty down, and to compel this assembly to renounce its discretion, and to degrade itself to the rank of a blind and passive instrument in the hands of the Treaty-making power? In case we reject the appropriation, we do not secure any greater liberty of action, we gain no safer shelter than before, from the consequences of the decision. Indeed, they are not to be evaded. It is neither just nor manly to complain that the Treaty-making power has produced this coercion to act. It is not the art or the despotism of that power, it is the nature of things that compels. Shall we, dreading to become the blind instruments of power, yield ourselves the blinder dupes of mere sounds of imposture? Yet that word, that empty word, coercion, has given scope to an eloquence that, one would imagine, could not be tired, and did not choose to be quieted. Let us examine still more in detail the alternatives that are before us, and we shall scarcely fail to see, in still stronger lights, the futility of our apprehensions for the power and liberty of the House. If, as some have suggested, the thing called a Treaty is incomplete, if it has no binding force or obligation, the first question is, Will this House complete the instrument, and by concurring, impart to it that force which it wants? The doctrine has been avowed, that the Treaty, though formally ratified by the Executive power of both nations, though published as a law for our own, by the PRESIDENT's Proclamation, is still a mere proposition submitted to this assembly no way distinguishable in point of authority or obligation from a motion for leave to bring in a bill, or any other original act of ordinary legislation. This doctrine, so novel in our country, yet so dear to many, precisely for the reason that, in the contention of power, victory is always dear, is obviously repugnant to the very terms, as well as the fair interpretation of our own resolutions, (Mr. BLOUNT's.) We declare that the Treaty-making power is exclusively vested in the PRESIDENT and Senate, and not in this House. Need I say that we fly in the face of that resolution when we pretend that the acts of that power are not valid until we have concurred in them? It would be nonsense, or worse, to use the language of the most glaring contradiction and to claim a share in a power which we, at the same time, disclaim as exclusively vested in other departments. What can be more strange than to say, that the compacts of the PRESIDENT and Senate with foreign nations are Treaties, without our agency, and yet those compacts want all power and obligation until they are sanctioned by our concurrence? It is not my design in this place, if at all, to go into the discussion of this part of the subject. I will, at least for the present, take it for granted that this monstrous opinion stands in little need of remark, and, if it does, lies almost out of the reach of refutation. But, say those who hide the absurdity under the cover of ambiguous phrases, have we no discretion? And, if we have, are we not to make use of it in judging of the expediency or inexpediency of the Treaty? Our resolution claims that privilege, and we cannot surrender it without equal inconsistency and breach of duty. If there be any inconsistency in the case, it lies, not in making appropriations for the Treaty, but in the resolution itself, (Mr. BLOUNT's.) Let us examine it more nearly. A Treaty is a bargain between nations binding in good faith; and what makes a bargain? The assent of the contracting parties. We allow that the Treaty power is not in this House; this House has no share in contracting, and is not a party; of consequence, the PRESIDENT and Senate alone may make a Treaty that is binding in good faith. We claim, however, say the gentlemen, a right to judge of the expediency of Treaties--that is the constitutional province of our discretion. Be it so--what follows? Treaties when adjudged by us to be inexpedient, fall to the ground, and the public faith is not hurt. This, incredible and extravagant as it may seem, is asserted. The amount of it, in plainer language, is this--the PRESIDENT and Senate are to make national bargains, and this House has nothing to do in making them. But bad bargains do not bind this House, and, of inevitable consequence, do not bind the nation. When a national bargain, called a Treaty, is made, its binding force does not depend upon the making, but upon our opinion that it is good. As our opinion on the matter can be known and declared only by ourselves, when sitting in our Legislative capacity, the Treaty, though ratified, and, as we choose to term it, made, is hung up in suspense, till our sense is ascertained. We condemn the bargain, and it falls, though, as we say, our faith does not. We approve a bargain as expedient, and it stands firm, and binds the nation. Yet, even in this latter case, its force is plainly not derived from the ratification by the Treaty-making power, but from our approbation. Who will trace these inferences, and pretend that we may have no share, according to the argument, in the Treaty-making power? These opinions, nevertheless, have been advocated with infinite zeal and perseverance. Is it possible that any man can be hardy enough to avow them, and their ridiculous consequences? Let me hasten to suppose the Treaty is considered as already made, and then the alternative is fairly presented to the mind, whether we will observe the Treaty, or break it. This, in fact, is the naked question. If we choose to observe it with good faith, our course is obvious. Whatever is stipulated to be done by the nation, must be complied with. Our agency, if it should be requisite, cannot be properly refused. And I do not see why it is not as obligatory a rule of conduct for the Legislature as for the Courts of Law. I cannot lose this opportunity to remark, that the coercion, so much dreaded and declaimed against, appears at length to be no more than the authority of principles, the despotism of duty. Gentlemen complain that we are forced to act in this way, we are forced to swallow the Treaty. It is very true, unless we claim the liberty of abuse, the right to act as we ought not. There is but one way open for us, the laws of morality and good faith have fenced up every other. What sort of liberty is that which we presume to exercise against the authority of those laws! It is for tyrants to complain that principles are restraints, and that they have no liberty so long as their despotism has limits. The consequences of refusing to make provision for the Treaty are not all to be foreseen. By rejecting, vast interests are committed to the sport of the winds, chance becomes the arbiter of events, and it is forbidden to human foresight to count their number, or measure their extent. Before we resolve to leap into this abyss, so dark and so profound, it becomes us to pause and reflect upon such of the dangers as are obvious and inevitable. If this assembly should be wrought into a temper to defy these consequences, it is vain, it is deceptive, to pretend that we can escape them. It is worse than weakness to say, that as to public faith our vote has already settled the question. Another tribunal than our own is already erected. The public opinion, not merely of our own country, but of the enlightened world, will pronounce judgment that we cannot resist, that we dare not even affect to despise. Well may I urge it to men who know the worth of character, that it is no trivial calamity to have it contested. Refusing to do what the Treaty stipulates shall be done, opens the controversy. Even if we should stand justified at last, a character that is vindicated is something worse than it stood before, unquestioned and unquestionable. Like the plaintiff in an action of slander, we recover a reputation disfigured by invective, and even tarnished by too much handling. In the combat for the honor of the nation, it may receive some wounds, which, though they should heal, will leave some scars. I need not say, for surely the feelings of every bosom have anticipated, that we cannot guard this sense of national honor, this ever-living fire, which alone keeps patriotism warm in the heart, with a sensibility too vigilant and jealous. If, by executing the Treaty, there is no possibility of dishonor, and if by rejecting there is some foundation for doubt and for reproach, it is not for me to measure, it is for your own feelings to estimate the vast distance that divides the one side of the alternative from the other. If, therefore, we should enter on the examination of the question of duty and obligation with some feelings of prepossession, I do not hesitate to say, they are such as we ought to have; it is an after inquiry to determine whether they are such as ought finally to be resisted. To expatiate on the value of public faith, may pass with some men for declamation; to such men I have nothing to say. To others I will urge, can any circumstance mark upon a people more turpitude and debasement? Can any thing tend more to make men think themselves mean, or degrade to a lower point their estimation of virtue and their standard of action? It would not merely demoralize mankind, it tends to break all the ligaments of society, to dissolve that mysterious charm which attracts individuals to the nation, and to inspire in its stead a repulsive sense of shame and disgust. What is patriotism? Is it a narrow affection for the spot where a man was born? Are the very clods where we tread entitled to this ardent preference because they are greener? No, sir; this is not the character of the virtue, and it soars higher for its object. It is an extended self-love, mingling with all the enjoyments of life, and twisting itself with the minutest filaments of the heart. It is thus we obey the laws of society, because they are the laws of virtue. In their authority we see not the array of force and terror, but the venerable image of our country's honor. Every good citizen makes that honor his own, and cherishes it not only as precious but as sacred. He is willing to risk his life in its defence, and is conscious that he gains protection while he gives it. For what rights of a citizen will be deemed inviolable when a State renounces the principles that constitute their security? Or, if his life should not be invaded, what would its enjoyments be in a country odious to the eyes of strangers and dishonored in his own? Could he look with affection and veneration to such a country as his parent? The sense of having one would die within him; he would blush for his patriotism, if he retained any, and justly, for it would be a vice. He would be a banished man in his native land. I see no exception to the respect that is paid among nations to the law of good faith. If there are cases in this enlightened period when it is violated, there are none when it is decried. It is the philosophy of politics--the religion of governments. It is observed by barbarians that a whiff of tobacco-smoke or a string of beads gives not merely binding force, but sanctity, to Treaties. Even in Algiers, a truce may be bought for money, but when ratified, even Algiers is too wise or too just to disown and annul its obligation. Thus, we see neither the ignorance of savages, nor the principles of an association for piracy and rapine, permit a nation to despise its engagements. If, sir, there could be a resurrection from the foot of the gallows; if the victims of justice could live again, collect together, and form a society, they would, however loth, soon find themselves obliged to make justice--that justice under which they fell--the fundamental law of their State. They would perceive it was their interest to make others respect, and they would therefore soon pay some respect themselves to the obligations of good faith. The refusal of the posts (inevitable, if we reject the Treaty) is a measure too decisive in its nature to be neutral in its consequences. From great causes we are to look for great effects. A plain and obvious one will be, the price of the Western lands will fall. Settlers will not choose to fix their habitation on a field of battle. Those who talk so much of the interests of the United States, should calculate how deeply it will be affected by rejecting the Treaty--how vast a tract of wild land will almost cease to be property. This loss, let it be observed, will fall upon a fund expressly devoted to sink the National Debt. What then are we called upon to do? However the form of the vote and the protestations of many may disguise the proceeding, our resolution is in substance (and it deserves to wear the title of a resolution) to prevent the sale of the Western lands and the discharge of the public debt. Will the tendency to Indian hostilities be contrasted by any one? Experience gives the answer. The frontiers were scourged with war till the negotiation with Britain was far advanced, and then the state of hostility ceased. Perhaps the public agents of both nations are innocent of fomenting the Indian war, and perhaps they are not. We ought not, however, to expect that neighboring nations, highly irritated against each other, will neglect the friendship of the savages. The traders will gain an influence, and will abuse it; and who is ignorant that their passions are easily raised, and hardly restrained from violence. Their situation will oblige them to choose between this country and Great Britain, in case the Treaty should be rejected. They will not be our friends, and at the same time the friends of our enemies. But am I reduced to the necessity of proving this point? Certainly the very men who charged the Indian war on the detention of the posts will call for no other proof than the recital of their own speeches. It is remembered with what emphasis--with what acrimony--they expatiated on the burden of taxes, and the drain of blood and treasure into the Western country, in consequence of Britain's holding the posts. "Until the posts are restored," they exclaimed, "the Treasury and the frontiers must bleed." If any, against all these proofs, should maintain that the peace with the Indians will be stable without the posts, to them I will urge another reply. From arguments calculated to produce conviction, I will appeal directly to the hearts of those who hear me, and ask whether it is not already planted there? I resort especially to the convictions of the Western gentlemen, whether, supposing no posts and no Treaty, the settlers will remain in security? Can they take it upon them to say that an Indian peace, under these circumstances, will prove firm. No, sir; it will not be peace, but a sword; it will be no better than a lure to draw victims within the reach of the tomahawk. On this theme, my emotions are unutterable. If I could find words for them--if my powers bore any proportion to my zeal--I would swell my voice to such a note of remonstrance it should reach every log-house beyond the mountains. I would say to the inhabitants, Wake from your false security! Your cruel dangers--your more cruel apprehensions--are soon to be renewed; the wounds, yet unhealed, are to be torn open again. In the day-time, your path through the woods will be ambushed; the darkness of midnight will glitter with the blaze of your dwellings. You are a father: the blood of your sons shall fatten your corn-field! You are a mother: the war-whoop shall wake the sleep of the cradle! On this subject you need not suspect any deception on your feelings. It is a spectacle of horror which cannot be overdrawn. If you have nature in your hearts, it will speak a language compared with which all I have said or can say will be poor and frigid. Will it be whispered that the Treaty has made me a new champion for the protection of the frontiers? It is known that my voice, as well as my vote, have been uniformly given in conformity with the ideas I have expressed. Protection is the right of the frontier: it is our duty to give it. Who will accuse me of wandering out of the subject? Who will say that I exaggerate the tendencies of our measures? Will any one answer by a sneer, that all this is idle preaching? Will any one deny that we are bound--and I would hope to good purpose--by the most solemn sanctions of duty for the vote we give? Are despots alone to be reproached for unfeeling indifference to the tears and blood of their subjects? Are Republicans irresponsible? Have the principles on which you ground the reproach upon Cabinets and Kings no practical influence--no binding force? Are they merely themes of idle declamation, introduced to decorate the morality of a newspaper essay, or to furnish pretty topics of harangue from the windows of that State-house? I trust it is neither too presumptuous, nor too late to ask, can you put the dearest interest of society at risk without guilt, and without remorse? It is vain to offer as an excuse, that public men are not to be reproached for the evils that may happen to ensue from their measures. This is very true, where they are unforeseen or inevitable. Those I have depicted are not unforeseen; they are so far from inevitable, we are going to bring them into being by our vote. We choose the consequences, and become as justly answerable for them as for the measure that we know will produce them. By rejecting the posts, we light the savage fires--we bind the victims. This day we undertake to render account to the widows and orphans whom our decision will make; to the wretches that will be roasted at the stake; to our country; and I do not deem it too serious to say, to conscience, and to God--we are answerable; and if duty be any thing more than a word of imposture, if conscience be not a bugbear, we are preparing to make ourselves as wretched as our country. There is no mistake in this case; there can be none. Experience has already been the prophet of events, and the cries of our future victims have already reached us. The Western inhabitants are not a silent and uncomplaining sacrifice. The voice of humanity issues from the shade of their wilderness. It exclaims that while one hand is held up to reject this Treaty, the other grasps a tomahawk. It summons our imagination to the scenes that will open. It is no great effort of the imagination to conceive, that events so near are already begun. I can fancy that I listen to the yells of savage vengeance, and the shrieks of torture. Already they seem to sigh in the west wind; already they mingle with every echo from the mountains. Are the posts to remain for ever in the possession of Great Britain? Let those who reject them, when the Treaty offers them to our hands, say, if they choose, they are of no importance. If they are, will they take them by force? The argument I am urging would then come to a point. To use force, is war. To talk of Treaty again, is too absurd. Posts and redress must come from voluntary good will, Treaty, or war. Such a state of things will exist, if we should long avoid war, as will be worse than war. Peace without security, accumulation of injury without redress, or the hope of it, resentment against the aggressor, contempt for ourselves, intestine discord and anarchy. Worse than this need not be apprehended, for if worse could happen, anarchy would bring it. Is this the peace gentlemen undertake, with such fearless confidence, to maintain? Is this the station of American dignity, which the high-spirited champions of our national independence and honor could endure; nay, which they are anxious and almost violent to seize for the country? What is there in the Treaty that could humble us so low? Are they the men to swallow their resentments, who so lately were choking with them? If in the case contemplated by them, it should be peace, I do not hesitate to declare it ought not to be peace. Let me cheer the mind, weary no doubt and ready to respond on this prospect, by presenting another, which it is yet in our power to realize. Is it possible for a real American to look at the prosperity of this country without some desire for its continuance, without some respect for the measures which, many will say, produced, and all will confess, have preserved it? Will he not feel some dread that a change of system will reverse the scene? The well-grounded fears of our citizens in 1794 were removed by the Treaty, but are not forgotten. Then they deemed war nearly inevitable, and would not this adjustment have been considered at that day as a happy escape from the calamity? The great interest, and the general desire of our people, was, to enjoy the advantages of neutrality. This instrument, however misrepresented, affords America that inestimable security. The causes of our disputes are either cut up by the roots, or referred to a new negotiation, after the end of the European war. This was gaining every thing, because it confirmed our neutrality, by which our citizens are gaining every thing. This alone would justify the engagements of the Government. For, when the fiery vapors of the war lowered in the skirts of our horizon, all our wishes were concentered in this one, that we might escape the desolation of the storm. This Treaty, like a rainbow on the edge of the cloud, marked to our eyes the space where it was raging, and afforded at the same time the sure prognostic of fair weather. If we reject it, the vivid colors will grow pale; it will be a baleful meteor, portending tempest and war. Let us not hesitate, then, to agree to the appropriation to carry it into faithful execution. Thus we shall save the faith of our nation, secure its peace, and diffuse the spirit of confidence and enterprise that will augment its prosperity. The progress of wealth and improvement is wonderful, and, some will think, too rapid. The field for exertion is fruitful and vast, and, if peace and good government should be preserved, the acquisitions of our citizens are not so pleasing as the proofs of their industry, as the instruments of their future success. The rewards of exertion go to augment its power. Profit is every hour becoming capital. The vast crop of our neutrality is all seed wheat, and is sown again to swell, almost beyond calculation, the future harvest of prosperity: and in this progress, what seems to be fiction, is found to fall short of experience. FRIDAY, April 29. _Execution of British Treaty._ Mr. DAYTON (the Speaker) declared that he did by no means intend to follow the gentlemen who had conceived it advisable to enter into a discussion of the merits of the Treaty, article by article. To those, he said, who regarded this second Treaty with Great Britain with disagreeable sensations--to those who believed that it did not contain in it such terms as the United States had reason to expect, and even a right to demand--to all those whose indignation had been excited at the unwarrantable outrages committed by that nation upon the rights of our neutral powers, who had seen their high-handed acts with astonishment, and the whole conduct of their administration towards this country with abhorrence--to those whose attachment for the French, nobly struggling for their liberties, was sincere, and who ardently wished that their revolution might terminate in the establishment of a good and stable government:--to all of this description, he could, with propriety, address himself, and say, that he harmonized with them in opinion, and that his feelings were in perfect unison with theirs. But if, he said, there should be found in that assembly one member, whose affection for any other nation exceeded that which he entertained for this, whose Representative he was--if there could even be found a single man whose hatred to any other country was greater than his love for America--him, he should consider as his enemy, hostile to the interests of the people who sent him there, utterly unqualified to judge rightly of their concerns, and a betrayer of the trust reposed in him. But, Mr. D. said, he could not believe it possible, that there were any such amongst them, and he was convinced that every one must see and feel the necessity of divesting himself of all his hatred, all his prejudices, and even all attachments that were in the least degree inconsistent with an unbiased deliberation and decision. The good and the prosperity of the people of the United States ought to be the primary object. It was that alone which their Representatives were delegated and commissioned more immediately to promote, and who would deny that it was intimately connected with, and involved in the vote they were about to give? That the defects of this instrument of compact with Britain greatly exceeded its merits, was a truth which was strongly impressed upon his mind, long before he had heard the reasoning of the gentleman from Virginia, (Mr. MADISON,) who had opened the debate. Although that gentleman had sketched its deformities in strong colors, and had in some instances, perhaps, exaggerated them; yet, Mr. D. said, he should not have contested the justice of the picture he had exhibited, if he had, at the same time, presented to their view, in true and faithful coloring, the other side of it also. Yet, this was surely necessary in order to enable them to form a right judgment. That member had declared that the House were now called upon to approve the Treaty, but Mr. D. was far from believing such a declaration warranted by the language or nature of the propositions on the table, to which all might assent, without pledging themselves to be the approvers of the instrument itself. So firmly convinced was he of this, that, if he could subscribe to the truth and force of every objection that had been urged by that gentleman, he should, nevertheless, by no means conclude with him, that the House ought to withhold the appropriations, but, on the contrary, they ought to grant them. This would be his course of conduct, because difficulties and inconveniences alone presented themselves to their view and choice, and he thought he should act unfaithfully, if he endeavored to shun those on the one side only, without regarding the wide scene of dangers into which he might plunge his country on the other. What would be thought of that man, who, because the road he was travelling proved to be an uneven and rough one, should considerately betake himself to an opposite path without exploring the precipice that awaited him there? In the individual it would be deemed an evidence of madness, and such heedless conduct in that House could not escape the imputation of blindness. Under impressions of this sort, as to the importance of the vote he was about to give, he conceived himself bound to extend his views beyond the mere intrinsic merits of the Treaty, and to estimate the evils which must flow from a rejection of it. What, he asked, were these? Would a foreign war, and the dissolution of the Government be the certain fruits of a rejection, as had been represented by some gentlemen whose opinions he respected? These would certainly be amongst the most dreadful calamities which could befall a country, and, especially, one made up of Confederacies like this; and although he did not think them probable, yet, they must be admitted to be possible, and as such, justify those who allow them to influence their minds. But he appealed to those gentlemen who seemed to treat such apprehensions as perfectly chimerical, whether there might not be others, which, though less alarming than a foreign war and dissolution of the Union, would yet exceed--nay, very far exceed, those which are to follow the operation of the Treaty. The first fruit of a rejection would be, Mr. D. said, a claim from the merchants who had suffered by spoliations, to be fully indemnified from the Treasury. He called upon the members who, like himself, represented agricultural States; and he called, also, upon those who represented the landed and agricultural interests in the commercial States, to declare, whether they were prepared to burden their constituents with a tax of five millions of dollars to be thus applied? He did not fear that he should be charged, as others had been, with sounding a false alarm. A proposition to that effect had already been laid on the table, and, what was not a little singular, it was founded on a presumption that the Treaty was to be annulled by a vote of the House, and was to derive its support from that very circumstance. Mr. D. thought it his duty to remind gentlemen of the doctrine uttered by the member from New York, (Mr. LIVINGSTON,) when he moved it, as well as of the extent of the principle contained in it. It is an established principle, said the mover, that protection is equally due to the person and property of all citizens, and that where the Government fails to protect, it is bound to indemnify for all the losses that may be sustained by every individual in consequence of such failure. They were, therefore, Mr. D. said, if they rejected the Treaty, to be immediately called upon to recognize a principle which would not only pledge them to tax their fellow-citizens for the five millions, at which the British spoliations were estimated, but, also, to make compensation for every depredation that might hereafter be made upon their trade; nay, more, for every injury that any American citizen might suffer through want of protection. He was aware that he might be told that the resolution embraced only merchants who had suffered, but he contended that the principle, when established, must extend to all; for he challenged any gentleman to show what better title they who inhabited the frontier next the sea, had to claim Governmental protection and indemnification, than they who inhabited a frontier on the land side? If, therefore, they were determined to compensate from the Treasury the merchant for his plundered cargo, they were equally bound to pay the frontier settler for his stolen horse; and there would be no bounds to such claims, or means to satisfy them. It had been asked what would be the conduct of Britain, when they should learn that the House of Representatives had refused to make appropriations for the Treaty. He was disposed to think that they would not consider it a cause, or make it a pretext, for the war. Having in their hands the fur trade, the Western posts, and about five millions of dollars, of which they had despoiled the people of these States, they might probably sit down contented with the spoils they had made, after this Government had, by its own act, dissolved the stipulations they had entered into to make restitution and compensation. But what, in this state of things, would restrain their piratical cruisers in the West Indies? They, whether hoping that a war would be the consequence of annulling the Treaty, or that, as the two nations were no longer under that tie, they might again rob with impunity; and would probably seize on American vessels wherever they could meet them, and carry them into those ports in which corrupt Judges stood ready to condemn them. So far as this question respected a dissolution of the present Government, it was certainly a very delicate one. Important as the subject under debate unquestionably was, he was free to declare it to be his opinion that no decision, however unfavorable it might seem, could justify, or would produce a separation of the States. He lamented that it had been conceived or mentioned by any one, for he should, whilst he had strength, resist such an event as the most fatal that could befall his country, and would cling to the Union as the rock of their political salvation. But he would not say, nor would any one else seriously say, that there was no room to apprehend that a rejection might produce suspicions, jealousies, distrusts, and discord between the one part of the Union and the other, and such a general fermentation in the public mind as never before prevailed. He could not here refrain from making a serious appeal to the candor and good sense of the gentleman from Virginia. Having served with him many years in public life--in the old Congress, under the Confederation, in the Federal Convention, and for nearly six years under the present form of Government, he had, upon many and various occasions, witnessed the display of his superior talents, and the efforts of his patriotism, and derived from thence a conviction that, as at no former moment, so neither at the present, could he appeal to those qualities in that gentleman in vain. Mr. D. requested him to turn his attention to the last article of the British Treaty, and particularly that part of it which is in the words following, viz: "This Treaty, when the same shall have been ratified by His Majesty and by the President of the United States, by and with the advice and consent of their Senate, and the respective ratifications mutually exchanged, shall be binding and obligatory on His Majesty and on the said States, and shall be by them respectively executed and observed with punctuality and the most sincere regard to good faith," &c. He called upon the gentleman from Virginia to show in what line or word of it the PRESIDENT had exceeded his authority, or, if that was not pretended, and he believed it was not by any one, he wished that gentleman to reflect for a moment how it was possible to refuse appropriations, and yet preserve inviolate the faith of this country, so solemnly pledged in that article. Mr. D. concluded with observing that, although he was not pleased with many parts of the Treaty--although he had never felt any strong predilection for an intimate connection with Britain--although he had never seen their encroachments on the rights, nor their depredations upon the property of American citizens with an indulgent eye, or in the temper of tame submission, and although he had long ceased to entertain any respect for the negotiator, yet he should vote for the resolution, because he loved his country, and to that love, would sacrifice every resentment, every prejudice, every personal consideration. He should vote to carry the Treaty into effect with good faith, because he sincerely believed that the interests of his fellow-citizens would be much more promoted by that, than by the opposite line of conduct. The question was then put on the resolution, which is in substance as follows: _Resolved_, That it is expedient to make the necessary appropriations for carrying the Treaty with Great Britain into effect. The House divided, forty-nine for the resolution, forty-nine against it. It remained for the Chairman, Mr. MUHLENBERG, to decide. He said, he did not feel satisfied with the resolution as it now stood; he should, however, vote for it, that it might go to the House, and there be modified. The resolution was consequently agreed to, and reported to the House. [The following statement will show the true sense of the House as to the expediency of carrying the British Treaty into effect: Forty-nine voted for this expediency. Forty-nine against it. The Chairman, Mr. MUHLENBERG, to give an opportunity further to consider the resolution, voted for it. Mr. PATTON from Delaware was ill, and was necessarily absent. It is, however, well understood, that he is opposed to the Treaty. Mr. VARNUM was accidentally absent. He is no friend to the Treaty. Messrs. FREEMAN, SHERBURNE, and VAN CORTLANDT are absent on leave. Mr. DUVALL has resigned, and his successor has not yet taken his seat. From which it is evident that there is an actual majority of the House against the expediency of carrying the Treaty into execution.] SATURDAY, April 30. _Execution of British Treaty._ The House then took up the resolution yesterday passed in a Committee of the Whole, for carrying into effect the Treaty lately negotiated with Great Britain: when Mr. DEARBORN said, as it appeared that a majority of that House was in favor of carrying into effect the British Treaty, notwithstanding several of those gentlemen who had declared their intention of voting for it, had declared they thought it a bad Treaty, and as he wished to see the opinion the House entertained of the Treaty entered upon their journals, he took the liberty of proposing an amendment to the resolution in the following words: "_Resolved_, That, although in the opinion of this House the Treaty is highly objectionable, and may prove injurious to the United States, yet, considering all the circumstances relating thereto, and particularly, that the last eighteen articles are to continue in force only during the present war, and two years thereafter, and confiding also in the efficacy of measures that may be taken for bringing about a discontinuance of the violations committed on our neutral rights, in regard to our vessels and seamen, therefore, &c." Mr. COIT hoped the yeas and nays would be taken upon the question; which was agreed to. Mr. GOODHUE hoped the House would not agree to the resolution; he, for one, would never agree to it. Mr. SWANWICK hoped the amendment would be agreed to; for whatever some gentlemen's opinion might be with respect to the propriety of carrying the Treaty into effect, very few thought it a good Treaty. An amendment, therefore, declaring the motives which actuated that House in passing the resolution for carrying the Treaty into effect was very desirable; it would induce some gentlemen to vote for it, who would otherwise vote against it, and it ought not to excite objection. He appealed to the recollection of gentlemen, the arguments which had been used to enforce the necessity of the appropriations, which laid great stress upon the shortness of time which the most objectionable part of the Treaty was to be in force. He hoped, therefore, these arguments would not be objected to in the form of a resolution. Mr. HILLHOUSE said, when he prepared the resolution on the table, he thought he had done it in such general terms that every gentleman might vote for it, without expressing a sentiment contrary to what he entertained respecting the Treaty. The amendment proposed, he thought very objectionable. It appeared as if it was intended to force gentlemen to vote against carrying the Treaty into effect rather than vote for the Treaty. For his own part, he could not vote for it, as it would be in direct contradiction to the sentiments which he had before expressed. He thought candor itself could not expect gentlemen who approved of the Treaty to vote for the amendment. It was also a rule to avoid expressing particular sentiments in resolutions of this kind. One part of the proposition, if it was brought forward separately, would be assented to generally, respecting the confidence placed in the PRESIDENT, with respect to future spoliations and impressments of men. In this proposition, it was said, the Treaty was injurious; he did not believe it was so. He believed it would be beneficial to the United States. It would not only be agreeing to an opinion which was contrary to the sentiments of gentlemen, but it would be passing a censure on the other branches of Government. Gentlemen were not required to say it was a good Treaty, and he hoped no one would be forced to say it was a bad one. [The SPEAKER informed the House that it was then twelve o'clock, and as they had yesterday ordered that there should be a call of the House to-day at that hour, he should direct the Clerk to make the call. It was accordingly done. Messrs. BRENT, HARPER, and PATTON were absent. The two former came to the House soon after the call, and, on making apologies, were excused. Mr. PATTON was indisposed.] Mr. GREGG said he should vote for the resolution in its present state. He did so, not because he thought the Treaty a good one, but because he believed the interest of the United States would be promoted by making the necessary appropriations, and because he was apprehensive worse consequences might arise from defeating it than from carrying it into effect. Mr. MOORE considered himself as called upon to choose between two evils. He considered the Treaty to be bad. On the other hand, he was apprehensive that evils might arise, if it was not carried into effect, out of the control of that House. He had resolved not to vote for the resolution on the table; but he felt unwilling to take upon himself the responsibility of rejecting the Treaty, which had been sanctioned by the PRESIDENT and Senate. In deciding upon the amendment proposed, he wished the sense of the House to be taken; and if he considered that a single individual would be influenced to vote against the resolution who would otherwise have voted for it, he should wish them to be separated. It was his opinion the Treaty was a bad one, and he believed it was the opinion of a decided majority of that House. He wished the resolution to be so amended that the Treaty might go into effect by a considerable majority, as it would tend to lessen the irritation which had been raised respecting it. Mr. DEARBORN said, in offering the amendment which he had proposed, he had no intention of taking any thing like an unfair advantage, or of producing what might be thought uncandid or unfair. His own sentiments relative to the Treaty were such as would prevent his consenting to do any thing to carry it into effect, unless with such a provision as he had brought forward. It appeared to him of such a nature, that he was not sure that he could bring his mind to vote to carry it into effect at all. He had supposed there could be nothing improper in taking the opinion of the House relative to the thing itself. If it might be presumed that there were but few gentlemen in that House who thought the Treaty a good one, he, indeed, thought there were none of that opinion, until then, though some gentlemen had praised it in their speeches, but which he had merely considered as adding weight to their arguments, he believed such an amendment was desirable. As he, therefore, took it for granted that a considerable majority of the House were of the same opinion with himself, he saw no impropriety in having that opinion expressed. The propositions would not interfere with any bill which might be brought in, and gentlemen would have the discretion to vote for it or not. If a majority of the House thought differently from him, and chose to negative the amendment, he should be satisfied. Until he heard something further on the business, to convince him of the impropriety of doing so, he should wish to see a decision of the House upon the proposition as he had offered it. Mr. HARPER said he was of the number who thought the measure of passing the resolution on the table a very expedient one; but whilst this was his opinion, he knew there were many, both within and without their walls, of a different opinion. He had no objection to gentlemen's expressing their opinions, but he wished also to be at liberty to express his. He should, therefore, propose that the mover should form his resolution as a preamble. This would answer the purpose of the gentleman from Virginia, (Mr. MOORE.) He said, when it was so formed, every one would have an opportunity of voting for it, and, if negatived, the resolution would stand as before. He hoped, therefore, the proposal would be agreed to. Mr. DEARBORN said he considered his motion in the nature of a preamble; and he had no objection to any alteration that would make it more properly so. Mr. KITTERA appealed to the candor of the gentleman who brought forward the amendment, with respect to the propriety of making his proposition a distinct one. He thought it would be extremely improper to pass a resolution which would say, "We pass this law, though we believe it to be a very bad one." He thought it also directly charging another branch of the Government with improper conduct. Mr. NICHOLAS had no objection to the amendment being inserted by way of preamble. He urged the propriety of the opinions of members being fairly taken on this important business. Mr. GREGG wished to offer an amendment, as a substitute to that before the committee. It was, in substance, as follows: "_Resolved_, That under a consideration of existing circumstances, without reference to the merits or demerits of the Treaty, and in confidence that measures will be taken by the Executive to maintain our neutral rights, it is expedient," &c. This was declared out of order until the amendment was decided on. Mr. VENABLE had no objection to the propositions being taken separately, as gentlemen would be then left at liberty to vote as they pleased. He conceived there were gentlemen who would vote for the proposition with the amendment, who would not vote for it without it. He did not know that any amendment would reconcile the resolution to him; for, though he should vote for the amendment, he would not bind himself to vote for carrying into effect the Treaty. Mr. MURRAY said he had not spoken on the subject before. He was stating that the PRESIDENT was armed only with reason; he was stripped of all the symbols of power, and if the Treaty before them was carried into effect, with such a clog as the amendment proposed, he would be debilitated indeed. Their Executive had, in his opinion, done great things, and what would have covered any European Minister with untarnished laurels, by means of reason and policy; for, however wickedly courts act, they calculate upon the force of the powers with whom they treat. When a Minister goes to negotiate, they inquire into the naval and military force of his country, their appropriations for the army and navy, &c., &c. The Envoy of the United States would be a blank upon such an occasion. What was their interest, then? It was to give energy to their Government. Should they then pass the law in such a manner as almost to warrant the people in resisting it? The only thing which remained for them to do, was, not only to carry the Treaty into effect, but to carry it into effect with good faith. The object was not merely the posts--it was a conciliation of the differences long existing between the two nations; and it was their duty to execute it so as to produce the greatest advantage; whereas, if they were to agree to the amendment proposed, so covered with odium, it would weaken the power of the Executive, already too feeble. Mr. S. SMITH said he had never seen any cause of gloom. He never doubted that the members of that House would come to right conclusions. They did right yesterday, and he was not afraid of their doing wrong to-day. In their decision yesterday, the Chairman had doubts. He decided in favor of the resolution, in hopes of its undergoing some modification--that modification was now brought forward. It did not entirely please him; but he thought it might be so amended as to please every one. He moved that the words "and may prove injurious to the United States," be struck out. Consented to. Mr. MUHLENBERG said, when he gave his vote yesterday, he did it in the hope of a modification of the resolution taking place in the House. A modification was now brought forward, and he was ready to vote for some such modification. Whilst he made this declaration, he must add, that he was willing also to vote for the original resolution. He wished the sense of the House to be taken upon the two propositions separately. Mr. DEARBORN consented to the propositions being taken separately. Mr. S. SMITH moved to strike out the word "highly," so as to read _objectionable_, instead of "highly objectionable." The sense of the House was taken, when there were 48 for the striking out, and 48 against it. The SPEAKER gave his vote in the affirmative. Mr. KITCHELL said, he should vote against the proposition now brought forward, because he thought it wrong to hold up an idea which would have a tendency to weaken the Government. He looked upon it as injurious. The people would judge upon the Treaty from the instrument itself, and what had been said of it. They ought never to alarm the people unnecessarily. It was not from any fear of going to war, or any other apprehension but what he had mentioned, which caused this opposition in him. Mr. GALLATIN said, if the propositions could be divided, no gentleman could reasonably object to the sense of the House being taken upon them. Mr. PARKER said, he had not yet spoken upon this business. He would now say, he disapproved of the amendment, and should not vote for it. He thought the Treaty a bad one, and would not agree to vote for it by means of any modification. Mr. HEISTER said, he should vote for the amendment, because, if the Treaty went into operation, he should wish the reasons which induced the House to agree to it to appear, on the Journals. When, however, the resolution for carrying the Treaty into effect was put, he should vote against it. The motion was then put on the preamble, and decided in the negative, as follows: yeas, 49, nays 50: YEAS.--Theodorus Bailey, Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Dempsey Burges, Samuel J. Cabell, Gabriel Christie, John Clopton, Isaac Coles, Henry Dearborn, Samuel Earle, Jesse Franklin, Albert Gallatin, William B. Giles, James Gillespie, Christopher Greenup, Andrew Gregg, William Barry Grove, Wade Hampton, Carter B. Harrison, John Hathorn, Jonathan N. Havens, Daniel Heister, James Holland, George Jackson, Edward Livingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Frederick A. Muhlenberg, Anthony New, John Nicholas, Alexander D. Orr, John Page, Francis Preston, Robert Rutherford, Israel Smith, John Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn. NAYS.--Fisher Ames, Benjamin Bourne, Theophilus Bradbury, Nathan Bryan, Daniel Buck, Thomas Claiborne, Joshua Coit, Wm. Cooper, Jeremiah Crabb, George Dent, Abiel Foster, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, Chauncey Goodrich, Roger Griswold, George Hancock, Robert Goodloe Harper, Thomas Hartley, John Heath, Thomas Henderson, James Hillhouse, William Hindman, Aaron Kitchell, John Wilkes Kittera, George Leonard, Samuel Lyman, Francis Malbone, William Vans Murray, Josiah Parker, John Read, John Richards, Theodore Sedgwick, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac Smith, Samuel Smith, William Smith, Thomas Sprigg, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Peleg Wadsworth, and John Williams. From this list it appears that the question was lost by one vote. The clerk, however, through mistake, reported the votes to be equal, viz: 49 for and 49 against the question, and the SPEAKER gave his vote in the negative, but the above was afterwards found to be the true statement. Mr. W. SMITH was glad the motion was negatived. He did not wish either blame or praise to be cast upon the Treaty by the resolution passed to carry it into effect. He would, therefore, move to add the following words to the original resolution: "Without reference to the merits of the Treaty." Mr. GILES opposed this amendment. He said, it would be an indirect mode of passing a censure upon the House for having undertaken to judge of the merits of the Treaty. He did not know whether it struck the gentleman in the same way, but he would agree it was improper to pass a censure upon the House. He hoped, therefore, the motion would either be withdrawn or voted against. The motion was withdrawn. Mr. WINN said, as it was his opinion, and the opinion of the generality of his constituents, that the Treaty was a bad one, he should vote against it. The question was then taken by yeas and nays, and determined in the affirmative--yeas 51, nays 48, as follows: YEAS.--Fisher Ames, Theodorus Bailey, Benjamin Bourne, Theophilus Bradbury, Daniel Buck, Gabriel Christie, Joshua Coit, William Cooper, Jeremiah Crabb, George Dent, Abiel Foster, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, Chauncey Goodrich, Andrew Gregg, Roger Griswold, William Barry Grove, George Hancock, Robert Goodloe Harper, Thomas Hartley, Thomas Henderson, James Hillhouse, William Hindman, Aaron Kitchell, John Wilkes Kittera, George Leonard, Samuel Lyman, Francis Malbone, Frederick A. Muhlenberg, Wm. Vans Murray, John Read, John Richards, Theodore Sedgwick, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac Smith, Samuel Smith, William Smith, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Philip Van Cortlandt, Peleg Wadsworth, and John Williams. NAYS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Samuel J. Cabell, Thomas Claiborne, John Clopton, Isaac Coles, Henry Dearborn, Samuel Earle, Jesse Franklin, Albert Gallatin, William B. Giles, James Gillespie, Christopher Greenup, Wade Hampton, Carter B. Harrison, John Hathorn, Jonathan N. Havens, John Heath, Daniel Heister, James Holland, George Jackson, Edward Livingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Anthony New, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, Francis Preston, Robert Rutherford, Israel Smith, Thomas Sprigg, John Swanwick, Absalom Tatom, Joseph B. Varnum, Abraham Venable, and Richard Winn. _Ordered_, That a bill or bills be brought in, pursuant to the said resolution, and that Mr. HILLHOUSE, Mr. SEDGWICK, and Mr. GALLATIN, do prepare and bring in the same. [RECAPITULATION. For declaring the Treaty highly objectionable 48 Against this declaration 48 The SPEAKER decided in the negative. For declaring the Treaty objectionable 49 Against the declaration; some because they did not consider it objectionable; others because they feared making the declaration would be injurious, and others because, so opposed to the Treaty, as to object to all compromise 49 The SPEAKER decided in the negative. For carrying into effect the Treaty; some because a good one, others because best to execute it under existing circumstances 51 Against carrying it into effect, because bad in itself, and notwithstanding existing circumstances 48 Absent on this question--Messrs. SHERBURNE and FREEMAN, on leave; Mr. DUVALL, resigned; Mr. PATTON, by illness; Mr. FINDLAY, accidentally.][78] FRIDAY, MAY 6. _Admission of Tennessee._ The House resolved itself into a Committee of the Whole, on the report of the committee to whom was referred the Message of the PRESIDENT, relative to the Territory of the United States south of the river Ohio. Mr. RUTHERFORD hoped the committee would concur in the report. He had no idea of confining that Territory to the strict legal line. He did not wish to cavil with this brave, generous people. He would have them taken out of leading-strings, as they were now able to stand alone; it was time to take them by the hand, and to say, we are glad to see you, stand on your own feet. We should not, he said, be too nice about their turning out their toes, or other trifles; they will soon march lustily along. They had complied with every requisite for becoming a State of the Union--they wished to form an additional star in the political hemisphere of the United States--they have erected a State Government, and wish to come into the Union, and to resist their claim would be out of character. He hoped it would be agreed to. Mr. DAYTON said, he disapproved of the report of the committee, and of the terms in which the resolution they had recommended for the adoption of the House was expressed. He could never give his assent to any proposition which expressly or even impliedly admitted that the people inhabiting either of the Territories of the United States could, at their own mere will and pleasure, and without the declared consent of Congress, erect themselves into a separate and independent State. Yet this seemed to be the spirit of the report under consideration, and what was still worse, it went, as he understood, to renounce any right in Congress even to deliberate whether they should become a member of the Union. He was by no means desirous of opposing the wishes of this valuable and enterprising people who inhabit the South-western Territory, nor of unnecessarily impeding the efforts they were making to throw off the Territorial jurisdiction, and establish a system of Government for themselves; but being aware that the steps now about to be taken would be regarded and pursued hereafter as a precedent, he conceived it important that they should, in this first instance of the sort that had presented itself, proceed circumspectly and rightly. He was willing to pass a law in the present session which should at the same time provide for erecting and forming them into a State, and for admitting them as such into the Union. They should thereby effectually promote the views of the people of Tennessee, in a mode which, by avoiding the violation of any just political principle, would entirely reconciled and render consistent the interest of that district of country and of the several United States. Mr. D. acknowledged that he should have been much better satisfied if he had found all the people comprehended within the Territorial line petitioning for this measure, and if he had seen ingrafted in their constitution the conditions and restrictions contained in the ordinance upon which they found the right they were claiming; but he knew that unanimity was in no instance to be expected amongst a people so numerous and scattered; and he was convinced that they were bound by the conditions and limitations he alluded to, without an acknowledgment and repetition of them in their new charter. Mr. DEARBORN said, as to the census relative to representation, it appeared doubtful, that, because that Territory had now 66,000 inhabitants, they were entitled to two Representatives, as the other States of the Union were represented according to the number of inhabitants they contained in the year 1790. It might be doubtful whether they should be entitled to an advantage which was not allowed to other States. It had been his opinion (and he saw no reasons to change) that if this Territory was admitted into the Union, it was not entitled to more than one Representative; and therefore it was not necessary to make another census. As to passing a previous law recognizing the Territory as a State before it was admitted into the Union, he did not think it necessary. They say they are now a State, and surely Congress would not say to them, You shall not be a State, or dictate to them what sort of a constitution they shall have, provided it be a Republican. The method taken for ascertaining their number of inhabitants, he thought, could not be objected to. He saw no reason to prevent them from accepting the Territory as a State of the Union: what number of Representatives they were entitled to, would turn upon another point. Mr. BLOUNT said the House should have determined upon this question long since, as the government of Tennessee had a month ago gone into operation. The people there had chosen not only their State officers, but their Senators, and perhaps their Representatives, to come to Congress. The Governor had, from time to time, informed the PRESIDENT OF THE UNITED STATES of every step taken towards the proposed change of government. In July, he sent him a copy of the law directing the census to be taken; in November, when the census was completed, he sent him a copy of it, and a copy of his Proclamation requiring the people to elect members of Convention for the purpose of forming a constitution and State Government; and on the 19th of February he sent him a copy of the constitution, with notice that on the 28th of March, when the General Assembly of the State of Tennessee would meet to act on the constitution, the temporary government would cease; and this last information was, to his knowledge, received on the 28th of February--forty days before it was communicated by the PRESIDENT to Congress, and eleven days after it must have been known to the Secretary of State, if not to the PRESIDENT, that the State Government had gone into operation. What would be the consequence, said Mr. B., of refusing at this time, and under these circumstances, to receive this State into the Union? Did gentlemen wish to re-establish a temporary Territorial Government there? If they did, he believed their wish would not easily be accomplished; for the people there believed, that in changing their government, they only exercised a right which had been secured to them by a sacred compact; and under that belief, they will be disposed to defend it. That right was, in his opinion, recognized by the Government of the United States, when Mr. WHITE was permitted to take his seat in that House as the Representative of the Territory; and from that circumstance they had reason to expect that 67,000 inhabitants would have entitled them, without scruple, to be a member of the Union. If the census was not a just one, or if there had been any fraud used in taking it, an impeachment would lie against the Governor, who, upon his responsibility as an officer of the United States, sanctioned the law for taking it, and acted under it after it was taken. Mr. W. LYMAN said the subject presented itself in two points of view--as it related to the Territory being admitted as a State into the Union, or as giving them a right to send members to Congress. In his opinion, according to the ordinance of Congress, they had a clear right to be admitted as a State into the Union; for it was there said, that when they had 60,000 inhabitants, they should be entitled. No mode is pointed out how it shall be ascertained; but the Governor being expressly mentioned in the case where 5,000 inhabitants were to entitle them to a temporary Government, he thought there could be no doubt but the same way was to be observed with respect to their qualification for becoming one of the States of the Union. This fact, he said, came fully ascertained, and being so, there could be no doubt the right was clear. It was a right, indeed, which they could not deny, and, as a matter of expediency, it was not worth while to oppose it. He saw no reason why they should call in question the proceedings or the purity of the government of that Territory, so as to doubt their return. Mr. DAYTON said that he preferred the formation of the South-western Territory into one State, to a division of it into two, and he therefore did not agree with those gentlemen who had advocated the latter idea. The people had requested to be united into one State, and he was for complying with their request, and for taking them at their word, rather than by subdividing to give them a double representation in the Senate. Mr. SEDGWICK concurred in opinion with the gentleman from New Jersey (Mr. DAYTON); and if any gentleman understood him to say that he did not wish the State of Tennessee to be admitted into the Union, it must have been an error, for he had no such desire. But he was still persuaded that it was never intended that that Territory should have the power of settling the way by which they were to become one of the independent States. What had been said by a gentleman from Virginia (Mr. MADISON) of their being in a degraded situation, because controlled by laws which were made by persons independent of them, would not only apply to 60,000, but to six persons. The question was whether they were in a situation in which they could claim to be a State? If they were, they ought to be admitted; if not, they ought not to be admitted. If the idea of the gentleman from New Jersey was adopted, they might be admitted at an early period. He had no idea of charging Governor Blount with improper conduct: he was entitled to his respect. If it was intended that these people should decide upon their own situation, they ought to do it in the way observed in cases directed by the constitution. Mr. S. proposed two resolutions--one for laying out territory into a State or States, and another for directing a census of the inhabitants to be taken. It appeared to him that this was the way in which the subject should be considered: they should determine whether the Territory should be in one or two States, and before Representatives were sent to Congress, a census would be taken by authority of Congress. Words could not, he thought, have rendered more explicit the intention of the contracting parties than the words of the compact; and all this might be done in time for Representatives to be sent to the next session of Congress. Mr. MACON said the chief differences in the opinions of gentlemen arose upon a subject which was not before the committee, viz: the number of Representatives to which this new State was entitled in that House. The question before the committee was on admitting the Territory to be a State of the Union. There appeared to him only two things as necessary to be inquired into: First, Was the new Government Republican? It appeared to him to be so. And, secondly, Were there 60,000 inhabitants in the Territory? It appeared to him there were; and, if so, their admission as a State should not be considered as a gift, but as a right. Their temporary government (by whose authority the late census was taken) had not only a Governor appointed by the Executive of the General Government, but also a Legislative Council. To admit this Territory as a member of the Union, appeared to him as a matter of course. It also seemed as if the Executive was of that opinion. The PRESIDENT, having been duly informed from time to time with the proceedings of that Territory towards being admitted into the Union, if he had thought they had been doing wrong, he would have set them right. It was also his opinion, that if they had passed a law directing a census to be taken, it would have been done exactly in the way the present had been taken. He thought the subject of navigation was settled by the Constitution of the United States; the waters in that country would be under the same regulations with all other waters in the Union, nor did he think there was any thing in the Constitution of Tennessee which had a contrary tendency. It appeared clearly to him that every thing had been fairly done, and that they had a right to claim an admission as a member of the Union. Mr. BALDWIN said, had he belonged to the Territory south of the Ohio, he should probably have been for pursuing a different mode of conducting this business, from that which it seems they have thought proper to adopt. He should have thought it desirable, a year or two ago, to have obtained from Congress an act pointing out the mode of taking the census, and ascertaining the events on which they were entitled to become a State. He said Congress ought also, of their own accord, to have taken up that subject, and made those provisions, though not requested by the Territory; and it had always been with surprise he had observed that the first act for forming that Territory did not contain those provisions. He thought, as to the principle in this case there could be no doubt. Whenever the event happened of their having 60,000 inhabitants, as pointed out by law, their right to be a State took place. It was to depend entirely on that contingency; when that was proved to have taken place, they could not be debarred. There having been no mode previously pointed out for ascertaining this fact, only makes it more difficult for the Territory and for Congress to be satisfied of the fact of their actually having so many inhabitants, but does not affect their right. He thought it best for the House to proceed to examine their census and the evidence which they had thought proper to collect and bring forward in their own way. He was ready to allow that, for himself, he should examine it more scrupulously than he should have done, had it been taken under a law of Congress. But he had not understood many objections had yet been made to it. Perhaps, on further examination, it will be found fully satisfactory; if so, they must be admitted to be a State as a matter of right. They might have waited longer, and attempted to have formed two States; they have made their election of the other alternative. He thought it wise for Congress to avail itself of this opportunity of holding them to what they have chosen, and thus prevent future difficulties and misunderstandings. Mr. W. SMITH said he was glad to find the observations which he made yesterday in some measure sanctioned to-day. He then recapitulated his leading arguments. It was said yesterday by a gentleman from Virginia, (Mr. MADISON,) that whilst the people of the Territory remained in their colonial situation, they were in a state of degradation; but, he would ask, at whose request they became so? Look at their request in the year 1790, as expressed in the cession act. And yet, in the course of a few years, without consulting Congress, in consequence of a census taken by their own authority, they proceed to erect themselves into a State, create a new government, and claim to be admitted into the Union as matter of right. Under their former government their member was admitted to that House; yet, whilst he holds his seat under that government, they have appointed other members to represent them under their new Government. The most regular way would certainly have been to have transmitted their request to Congress to be formed into a State. Congress would then have passed a law for taking a census, have fixed when the Territorial system should cease and the State Government commence. He thought the business was of considerable consequence, and he was sorry it was taken up in so thin a House. There would certainly arise in a few years other new States in the Western country yet uninhabited, which might occasion considerable difficulties. They might make a census and say they had 60,000 inhabitants, when they had not half that number. He did not wish to keep the inhabitants of the South-western Territory out of the Union, but he wished them to be admitted in a constitutional mode. Mr. GALLATIN was of opinion that the people of the South-western Territory became _ipso facto_ a State the moment they amounted to 60,000 free inhabitants, and that it became the duty of Congress, as part of the original compact, to recognize them as such, and to admit them into the Union, whenever they had satisfactory proof of the fact. It was objected that, previous to the proof of that fact being given, it was necessary that Congress should have laid out and formed that Territory into one or more States, and that the proof of their number should have been given under direction and by order of Congress, the people not being competent to give the proof themselves. Both those objections suppose a construction of the original compact between the people of that Territory and the United States, (of the act of cession of North Carolina, and of the ordinance of Congress of 1787,) which was inadmissible; for it rendered that compact binding upon one party and not upon the other. It is supposed that that ordinance, whose object it was to establish the principles of a free government, and to ascertain a certainty of admission into the Union, had declared that the time when those people were to enjoy that government, and were to be admitted as a member of the Union, depended not on the contingency of their having 60,000 free inhabitants, but on certain previous acts of Congress--in other words, on the sole will of Congress. Either you must acknowledge that their admission depends solely on the condition of the compact being fulfilled, to wit: their having the number required; or you declare that it rests upon another act, which may be done or refused by the other party; that Congress have the power, by neglecting to lay them out into one or more States, or by refusing to pass a law to take a census, to keep them for ever in their colonial state. Nor did the strictest interpretation of that contract justify the construction given by the gentleman from South Carolina; for the only meaning that could consistently be given to the words, "lay out and form into one or more States," was, that Congress had power to fix the boundaries of the Territory or Territories that were to become a State or States. They could have declared that that Territory should be one or two States; but if they had neglected to do it, their omission could not be plead against the inhabitants of Tennessee. The power given by that clause to Congress was merely to fix boundaries, and to choose whether there should be more than one State; but if they had not made use of that power, there must be one State, and its boundaries were fixed by the act of cession, so that nothing remained now for Congress to operate upon. Mr. BLOUNT said, there was an absolute necessity for the clause which the gentleman last up objected to. Persons were daily coming to that Territory in great numbers. If the census had been required to be taken in one day all the people who had come into the Territory, with the intention to reside permanently there, could by no means have been numbered. It was not intended to give the officers power to take persons in more places than one, nor did he believe it had been done. He undertook to explain yesterday the reason why so long a time was given, but he seemed not to have been understood, which was, the difficulties attending the passage of the wilderness. The gentleman from South Carolina (Mr. SMITH) had said, that his arguments of yesterday had been to-day admitted. If the gentleman had supposed that he had admitted them, he was mistaken. That he might not continue under the mistake, he would inform him, that what he had called arguments, were, in his opinion, mere quibbles, such as could only have been expected from a County Court lawyer, at the bar of a County Court. Mr. COIT said, that as he had not heard it suggested from any quarter that it would be expedient to divide the Territory into two States, he did not think it important to inquire into the powers of Congress in that respect. It is declared by the ordinance for the government of the Territory, that when there should be sixty thousand inhabitants in any one of the States there they should be admitted into the Union. If, then, it is not in contemplation to divide the Territory into two States, he considered that the right to be admitted was complete as soon as there was the requisite number within the whole Territory. But it appeared to him, that on examining the census and the law under which it was taken, they could not be considered as furnishing proof that there was that number there. He did not pretend to say that any fraud had been committed in the execution of the law, but the law itself was wholly defective. The same man might have been counted in several counties, nay, in every county in the Territory, and that without any fraud, but in strict compliance with the law; two months having been allowed for taking the enumeration, and it being enjoined on the sheriffs of the several counties to include in their enumeration all persons within their respective districts within that period. The gentleman from North Carolina (Mr. BLOUNT) seemed to imagine that it would have been impracticable to have followed a mode similar to the one pointed out in the enumeration law of the United States, but he could not see the reason. [He read the law.] Mr. SITGREAVES said, he felt every disposition favorable to meet the wishes of the people of the South-western Territory, and for a reason which had been given, viz: that, as they were our fellow-citizens, it was desirable they should equally participate with us in all the advantages of the General Government, and suffer no longer than was necessary the comparative humiliation of a Colonial or Territorial administration; but, from obvious considerations, he thought it highly important that they should be admitted to the enjoyment of these advantages only in conformity with the promise made to them, and on the terms of the compact entered into jointly by the United States and by them. Two constructions of this compact had been contended for; one, that so soon as sixty thousand free inhabitants should be collected within the Territory, they should be entitled to a place in the Union, as an independent State; the other, that Congress should first lay off the Territory into one or more States, according to a just discretion, defining the same by bounds and limits; and that the admission of such States thus defined, should take place as their population respectively amounted to the number of free inhabitants mentioned; that is, that the sixty thousand inhabitants could not claim admission into the Union, unless their number was comprised within a State whose Territorial limits had been previously ascertained by an act of the United States. He inclined to this latter construction, because it was conformable to the letter, and, as he understood it, to the spirit of the instrument. By the act of cession of the State of North Carolina, accepted by Congress, it is provided that the ceded territory should be laid off into one or more States, and that the people of the Territory should be entitled to all the privileges secured to the inhabitants of the Territory north-west of the Ohio, by the ordinance of 1787. The extent of their privileges, therefore, is to be determined by this ordinance, which may be called their charter. They have no other or greater privileges than the inhabitants of the North-western Territory; and it cannot be pretended that these would be entitled to admission into the Union as one State, so soon as their whole number shall amount to sixty thousand, because the ordinance itself divides that country into three separate and distinct States, each of which must contain sixty thousand free inhabitants before it can claim to be received. The actual circumstances and situation of the South-western Territory evinced the reasonableness and propriety of the construction; it is composed of two settlements, the Hoston and the Mero districts, separated from each other by the Cumberland Mountains and a wilderness of two hundred miles in width, which has always been inhabited by the Indians, and the soil and jurisdiction of which have been actually ceded to them by the United States, by late Treaties; and by an examination of the documents on the table it would appear, that when, agreeably to the act of the Territorial Legislature, the officers who took the census put to the people of the Territory the question whether they were desirous of admission into the Union; the inhabitants of the Western or Mero district almost universally answered in the negative. He would not undertake positively to pronounce on the inexpediency of forming the whole country into one State; but under the circumstances which he had stated, and until they should be satisfactorily explained to his mind, it did appear to him that the interest and the wishes of that people required a division of the Territory. It looked somewhat absurd to connect under one permanent Government, people separated from each other by natural barriers, by a distance of two hundred miles, and by a foreign jurisdiction. They had been told, by gentlemen who knew the fact, that during the period of Indian hostility, the people emigrating to the Mero district were obliged to stop five or six weeks at the eastern boundary of the wilderness, until they could collect in companies or caravans of sufficient number and force to pass in safety; the time of hostility may again return, and even a state of peace with Indians is not a state of such tranquillity or security as to preclude the necessity of caution and vigilance on the frontiers. The people of the Western district seem sensible of the inconvenience of an arrangement so unnatural as the one proposed, and so far as their wishes can be collected from the documents before the committee, they desire as yet to preserve their connection with us in its present mode, and to remain under the Territorial Government. Mr. MACON said, he should be as unwilling to agree to the doctrine of the gentleman from New Jersey, (Mr. DAYTON,) as he was unwilling to agree to his. As to the people of this Territory attaching themselves to any other nation, he should not have thought it could have been suggested. There was no more likelihood of their going over to any other government than there was of any other State doing the same thing. Mr. GALLATIN said, how the resolution on the table, or the doctrine he had asserted, supported the idea that that Territory would have a right to separate from the Union, he could not see, and he should be glad to be informed. So far from it, his opinion was that if they were a State, they were at the same time a member of the Union; that they could not exist as a State without being one of the United States. The only difference of opinion was whether an act of Congress was necessary previous to their being recognized as such; and if any doctrine could lead to the conclusion of the SPEAKER, it was that of those gentlemen who thought that Congress must form them into a State, several months before they were admitted into the Union. In that intermediary situation, whilst declared a State and not one of the United States, they might, perhaps, claim, as an independent State, a right to reject an admission in the Union. But those consequences could only flow from the doctrine he was combating; the principle he was supporting was that no previous act was necessary, that there could not be two acts upon the subject; but that one and the same act must recognize them as a State and admit them in the Union. Mr. BLOUNT hoped the original resolution would not be rejected for the sake of the gentleman from New Jersey. He did not wish to give up the right to which these people were entitled; though perhaps the law might not pass the Senate. Mr. HARPER objected to the mention of the Senate, as to what was likely to be done there. He hoped they should adopt the resolution of the gentleman from New Jersey. The question was then taken on the original resolution reported by the select committee, and carried by 41 to 35. The committee rose and the House took up the consideration, when Mr. KITCHELL proposed a resolution in the place of that which had been agreed to in a Committee of the Whole, as he thought some law should be passed by Congress recognizing the Territory as a State, before they were admitted into the Union. It was negatived; and the original resolution was agreed to by 43 to 30, as follows: YEAS.--Theodorus Bailey, Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Thomas Claiborne, John Clopton, Jeremiah Crabb, William Findlay, Jesse Franklin, Albert Gallatin, William B. Giles, James Gillespie, Andrew Gregg, Wade Hampton, Robert Goodloe Harper, Carter B. Harrison, Jonathan N. Havens, Daniel Heister, James Holland, George Jackson, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, Andrew Moore, Anthony New, John Nicholas, Alexander D. Orr, John Page, Francis Preston, John Read, Robert Rutherford, Israel Smith, Richard Sprigg, jr., Thomas Sprigg, Absalom Tatom, Philip Van Cortlandt, and Abraham Venable. NAYS.--Benjamin Bourne, Theophilus Bradbury, Gabriel Christie, Joshua Coit, George Dent, Abiel Foster, Dwight Foster, Ezekiel Gilbert, Henry Glenn, Chauncey Goodrich, Roger Griswold, Thomas Hartley, Thomas Henderson, James Hillhouse, William Hindman, Aaron Kitchell, George Leonard, Samuel Lyman, Francis Malbone, Theodore Sedgwick, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac Smith, William Smith, George Thatcher, Uriah Tracy, John E. Van Allen, Peleg Wadsworth, and John Williams. SATURDAY, May 21. _Military Establishment._ The amendments of the Senate to the bill fixing the Military Establishment were read. They went to the retaining the whole number of light dragoons and the Major General, and directing that men should be enlisted for five instead of three years. The amendment respecting the dragoons being under consideration---- Mr. BALDWIN informed the House that the amount of the amendments of the Senate was this, to keep up 320 dragoons instead of 52, and to retain the Major General. It appeared to him that the House, having determined upon these subjects already, would be at no loss to form an opinion upon these amendments. Mr. WILLIAMS hoped that the amendment from the Senate would not be agreed to. This House had taken great pains to mature the bill, and he was of opinion that the number of troops agreed to was sufficient for a peace establishment. No gentleman had observed to the contrary; any addition would not only be an augmentation to the great expenses already accrued by the late war, but be a mean of retaining in the army useful citizens, who would be otherwise employed in pursuits of much more benefit to the United States. Mr. W. LYMAN hoped the amendment would be disagreed to. Mr. S. SMITH said, the Senate seemed to contemplate these light dragoons, on account of the officers, who were to do duty on horse or foot, as necessity required. From this idea, he would suggest the propriety of agreeing to the amendment. Mr. KITTERA said, the army would be placed so widely from each other, that the horse would prove very useful. Mr. GILES had no idea of keeping up the horse for the sake of the officers. Mr. GILBERT was in favor of retaining the whole number of horses. On motion of Mr. WILLIAMS, the yeas and nays were taken, and the amendment was negatived, 58 to 22. The consideration of the propriety of retaining the Major General was next taken up. Mr. NICHOLAS could not conceive any use for generals. He believed if the Senate had struck out the General they sent them, the amendment would have been a good one. Mr. GILES hoped they should not agree to the amendment. It would be a commencement of sinecures in the Military Department. There would be generals without men to command. He believed the bill, as sent from that House, contained its full proportion of officers. Mr. S. SMITH was in favor of the amendment. He said the expense would be no great things, and the present Major General would be very necessary in taking possession of the posts. Perhaps, at this time, it was essential to keep this man in command, as, if he were discharged, it might create a derangement in our Army which might be fatal. The command of three thousand men, it was true, was too trifling for a Major General. But, perhaps, as this General had been the victorious means of procuring us peace with the Indians, immediately to discharge him would appear like ingratitude, if not injustice. Mr. RUTHERFORD concurred in opinion with the gentleman last up. Mr. W. LYMAN said, they were not now called upon to reward the services of Major General Wayne, but to provide proper officers for their Army. If the gentleman from Maryland (Mr. S. SMITH) were to bring forward a measure of that kind, they should know how to decide upon it. Nor did he think the argument for making the office of a Major General, because the posts were to be received, had much weight. Any other officer would receive them as well as a Major General. Mr. GILES said, he had no personal objections to the present commander of our Army; but he considered the present proposition such a breach of principle as he could not agree to. It was the making of an office for a man; as the gentleman from Maryland seemed to think the taking possession of the posts the principal business to be performed by him. If the services of this gentleman were necessary on that occasion, he would much rather pass a bill to make him a commissioner for that purpose. All the arguments in favor of a Major General were in favor of the man, and not of the propriety of the office. Mr. MURRAY said, the gentleman last up must know that the gentleman who had so successfully commanded our Western Army, was now in the service of the United States, yet he would insinuate that there was an intention of creating a new office. There was no disposition in those who wished to retain this meritorious man in service to create new offices. They were now about to make a regular Military Establishment; heretofore it had rather been a nominal one. There had been hitherto a Major General at the head of our corps, and he thought it would be proper to continue the command. There appeared to him a great deal of danger from the instability of their proceedings, an instability often charged upon a Government like ours. He would not attribute this to any other motive than such as were too apt to enter into large deliberative bodies. Was it right that when a man had led our armies to victory, and returned, that he should be immediately stripped of his commission? He thought not. It was said that this was done, because the Army was reduced; but he believed it was now as large as when General Wayne obtained his victory by it, for it was not then more than three thousand men; and yet, because they wished to retain this man in the service of the United States, they were told that they were creating new offices for which there was no necessity. Mr. NICHOLAS said, with respect to the instability of their measures, he was ready to take his own share of it as well as that of the gentleman last up, for he never found him vary from one point; he was always desirous to keep up every office which had been once established. Mr. N. thought the conduct of gentlemen extraordinary. At one time they were to make our Establishment as large as possible, and when more favorable circumstances appeared, they were not to reduce it. Where were the benefits of peace, if they were still to keep up our War Establishments? Gentlemen tell you that the Army would be as large now as before the reduction, yet the same gentlemen were opposed to its being reduced to the number now contemplated. This appeared something like inconsistency. Mr. N. said, if they did not seize every favorable opportunity of lessening the expenses of Government, he believed their constituents would have good reason to complain of their want of attention to their duty. Mr. MACON said, they ought to legislate on this subject as if there were no Army in existence. They had no permanent Establishment, as their men were discharged at the end of every three years. He believed our present commander was a very respectable officer, but he could not vote for a Major General in the Establishment, which he thought unnecessary, because he thought him a deserving man. Mr. BOURNE believed it was not necessary to have any appropriate number of men for a Major General to command. It had often been thought that a Major General was necessary. He believed they had thought so on former occasions. If any necessity should arise for the militia to be called out to aid the Army, such an officer would be highly necessary. He did not think it would be true economy to reject him. Mr. GALLATIN said it was not pleasing to give a vote which was in some degree of a personal nature like the present. He was unacquainted with the gentleman who now held the office of Major General in our Army, and, therefore, was under no personal influence, and his opinion on the subject was formed upon the information of those in whose judgment on military affairs, he must necessarily confide, as it was a subject he did not understand. It was supposed that a Major General was necessary for a War Establishment, but not for a Peace Establishment. He drew this conclusion from that grade ceasing with the war in 1783, and being again introduced in 1791, when the Indian war had commenced, and he understood it was more connected with the nature of the service than the number of men. The gentleman from Maryland (Mr. SMITH) said that the nature of the service of this summer, required the service of General Wayne; but as the act they were about to pass would not take place till the 31st of October, as it was the opinion of all gentlemen of military knowledge, that there was no necessity for retaining a Major General in our reduced Army Establishment after the posts had been taken possession of, and as the whole summer appeared sufficient for that service, he would vote against the amendment. Mr. HARTLEY thought it best to have a Major General. The expense was but small, and in case of the militia being called out (as was mentioned by the gentleman from Rhode Island) a Major General would be necessary; besides, to reject him, would have the appearance of forcing this man out of office in an ungenerous manner. On motion of Mr. BAILEY, the yeas and nays were then taken, and the Senate's amendment was lost, 49 to 34. MONDAY, May 23. _Widow of General Greene._ The House went into Committee of the Whole on the petition of Catharine Greene, widow of the late General Greene, for indemnity against the demands of Harris and Blachford, of London, merchants, on account of a certain bond which had been given to them by General Greene, as was said on account of the United States. The following was the report of the Committee of Claims: "That this petitioner prays for indemnity against the demands of Messrs. Harris and Blachford, merchants, who have obtained a judgment against the estate of the late General Greene, for a large sum, in consequence of his being security to the said Harris and Blachford, for the debt of John Banks & Co., which debt, she states, was incurred for, and in behalf of the United States; and that General Greene gave security for no other purpose than to forward the interests of the public. "On a strict investigation of this claim, the committee find, that in the fall of 1782, General Greene was authorized by the Department of War to obtain supplies of clothing for the Southern Army, then under his command; and, not long after, he contracted with John Banks, a partner in the house of Hunter, Banks & Co., for such supplies. "In February, 1783, General Greene, under authority of the Superintendent of Finance, contracted with the same John Banks, to furnish such provisions as the same army were in want of; both of which contracts met the approbation of his employers. "Both these contracts required greater funds than the contractors could command, and the last, which was to supply rations for the army, was near being defeated, because the creditors--for supplies on the former contract--were about to deprive the contractors of their means to fulfil the last. In this situation, Gen. Greene had before him the alternative of turning the army loose upon the inhabitants, to plunder for their necessary food, or support, by his own credit, that of the contractors. He preferred the latter, and gave, in addition to the security of John Banks & Co., his own bond to Harris and Blachford, to secure an eventual payment for articles which had gone to the use of the United States in clothing the army. "John Banks received of the United States the whole sum of the contract, but diverted the money from its proper channel, and left General Greene liable to pay the sum secured by the bond mentioned above, and another to Messrs. Newcomen and Collet. Banks & Co. became bankrupts, and, soon after, Banks died. "The committee find that General Greene, as soon as he was apprised of any possible danger which might accrue to him, took measures to procure some security; but his attempts were ineffectual as to a complete indemnity. It appears he effected some payments, and obtained partial indemnity, but was left finally exposed to a large claim of Messrs. Newcomen and Collet, and this bond about which the present petition is conversant. "Against the claim of Newcomen and Collet, Congress have indemnified the estate of General Greene, by an act passed April 27th, 1792. "This act has served as a precedent to the committee, in deciding on the present petition, as there are the same reasons existing for the interference of Government now as then; to which may now be added the weight of precedent. "For further particulars as to the merits of the claim, the committee ask leave to refer the House to a report of the Secretary of the Treasury, made to Congress on this subject, the 26th December, 1791, and which is herewith laid before them. The bond given by Gen. Greene to Harris and Blachford for J. Banks & Co., is dated 8th April, 1783, for the sum of £18,473, 13s. 7d. South Carolina currency. This sum, by a variety of negotiations and payments, has been considerably reduced; the committee have not been able to ascertain with precision the sum now due, but suppose it to be between eleven and twelve thousand pounds. "The committee are of opinion that General Greene gave this bond with the sole and honorable motive of serving, to his utmost ability, the then pressing interest of the United States: and that the salvation of the Southern Army, and success of our arms in that part of the Union, in a great measure depended upon this timely interference of his private credit. "They think the honor and justice of Government is pledged to indemnify the estate of General Greene, and by paying the sum due to Harris and Blachford, save a deserving family from indigence and ruin. They therefore report, for the consideration of the House, the following resolution, viz: "_Resolved_, That the United States ought to indemnify the estate of the late General Greene, for the sum due on a bond, given by the said General Greene to Harris and Blachford, bearing date April 8, 1783, for the sum of £18,473, 13s. 7d., South Carolina currency, as surety for John Banks & Co.: _Provided_, That it shall appear, upon due investigation, by the officers of the Treasury, that the said General Greene, in his lifetime, or his executors since his decease, have not already been indemnified, for the contents of the said bond: _And provided_, That the said executors shall make over to the Comptroller of the Treasury, and his successors, for the United States, all mortgages, bonds, covenants, or other counter securities whatsoever, if such there are, which were obtained by General Greene in his lifetime, from the said Banks & Co., or either of them, on account of his being surety for them, as aforesaid; to be sued for in the name of the said executors, for the use of the United States: And the officers of the Treasury are hereby authorized to liquidate and settle the sum due to the estate of the said General Greene, to indemnify the same as aforesaid, according to the true intent and meaning of this resolution; and to pay such sum as may be found due on the said bond, out of the Treasury of the United States, to the said executors, to be accounted for by them, as part of the said estate." After some debate on this subject, in the course of which the SPEAKER read, in his place, a letter he had received from the Secretary of the War Department, in consequence of a resolution passed on Saturday, calling for a letter which had been written by the late Colonel Burnett to the late Secretary of War, declaring that no such letter could be found in the War Office; and Mr. COIT spoke at considerable length against the claim--at length the question was put and carried in favor of the report, there being 51 members in the affirmative. The committee then rose, and the House took up the consideration, when, on motion of Mr. BLOUNT, who said he had intended to have made some observations on this subject, but finding the majority so large in favor of the report, he could not believe what he should say would have any effect, the yeas and nays were taken and stood, yeas 56, nays 26, as follows: YEAS.--Fisher Ames, Abraham Baldwin, David Bard, Lemuel Benton, Benjamin Bourne, Theophilus Bradbury, Richard Brent, Dempsey Burges, Thomas Claiborne, William Cooper, Jeremiah Crabb, Abiel Foster, Dwight Foster, Ezekiel Gilbert, William B. Giles, Nicholas Gilman, Henry Glenn, Chauncey Goodrich, Christopher Greenup, Robert Goodloe Harper, Carter B. Harrison, John Hathorn, Jonathan N. Havens, John Heath, Daniel Heister, William Hindman, George Jackson, John Wilkes Kittera, Samuel Lyman, William Lyman, Francis Malbone, John Milledge, Frederick A. Muhlenberg, William Vans Murray, Anthony New, John Nicholas, John Read, Robert Rutherford, Samuel Sitgreaves, Jeremiah Smith, Israel Smith, Isaac Smith, Samuel Smith, William Smith, Richard Sprigg, jr., John Swanwick, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Philip Van Cortlandt, Abraham Venable, Peleg Wadsworth, and John Williams. NAYS.--Thomas Blount, Nathan Bryan, Samuel J. Cabell, Gabriel Christie, Joshua Coit, Isaac Coles, George Dent, Samuel Earle, Jesse Franklin, Albert Gallatin, James Gillespie, Roger Griswold, William B. Grove, Wade Hampton, George Hancock, Thomas Henderson, James Holland, Aaron Kitchell, Matthew Locke, Samuel Maclay, Nathaniel Macon, Andrew Moore, Nathaniel Smith, Thomas Sprigg, Absalom Tatom, and Richard Winn. The resolution was referred to the Committee of Claims, to report a bill. [The facts, as stated in the course of debate, were as follows: A little time before the evacuation of Charleston by the English, in the fall of the year 1782, a number of merchants who had settled there, under British authority, were under the necessity of leaving the city. Thus situated, these merchants were willing to dispose of their goods in a way that would secure their money, and enable them to leave the country immediately. John Banks knowing of this, and being, it is said, a man of a speculative disposition, determined to avail himself of this offer. He therefore went into Charleston, at a time when General Greene was lying not far from its walls, and there made a contract with Messrs. Harris & Blachford for goods to the amount of £50,000, which were delivered to him under the firm of Hunter, Banks & Co. After Banks had made this purchase, he entered into contract with General Greene to supply the Army with clothes. Some time after that contract had taken place, the Army was in want of provisions, and the supplies were cut off, and about to fail, when Banks came forward and made a contract to supply the Army with provisions; but the funds which were to enable him to fulfil this contract, were in the goods he had lately bought, and an interference of his partners and creditors took place. The creditors were afraid if these goods were disposed of for that purpose, their security would be lessened, and his partners were not willing that he should convert their joint property to his own particular benefit--for they, it seems, were to have nothing to do with the provision contract. To surmount these difficulties, security was required. The creditors of Banks would be satisfied, if security was given. In this state of things, General Greene became security for Banks, in his first purchase. Banks afterwards received the whole sum of the contract, but diverted the money from its proper channel, and left General Greene liable to pay the sum secured by the bond to Harris & Blachford. The question in the committee was, whether General Greene entered into this security with the sole view of obtaining provisions for his Army in a time of distress, or whether he had some concern or partnership in the transaction. The following particulars were mentioned, to prove that the security was given for no other purpose than that of obtaining food for his men. The first purchase of Banks was made in September, 1782; the evacuation of Charleston took place in December following. Banks's clothing contract was made a few days previous to the evacuation; his proposal for the provision contract was made about the same time, but not actually entered into till the 18th of February, 1783, and not completed till General Greene's security was given on the 8th of April. On the 7th of May, General Greene got a counter security. It could not be seen, as was observed, for what purpose General Greene entered into this contract, if it were not for the relief of his army. Had General Greene been a partner, would he have required security of Banks six months after the contract, when business was going on extremely well--when Banks was in good credit, and making money, and when no doubt could be entertained of him? It was insisted he would not: but, having no connection with him, he thought it prudent to obtain a counter security. On the other hand, various suggestions were thrown out which had somewhat of a suspicious appearance--such as General Greene's forcing his men to buy clothing, &c., of Banks, at an exorbitant price, reports in the Army, a letter said to be written by the late Colonel Burnett, who, it appears, was a partner of John Banks, intimating that General Greene was a partner in the concern, though his name was never mentioned in it; but nothing like proof appeared to the committee upon which to ground any reliance. Indeed, if General Greene had any concern with Banks, it seemed to be a matter which could not be proved, as, in General Greene's lifetime, he brought an action against Mr. Ferry, one of the partners with Banks, which was tried at Charleston, when every thing in Mr. Ferry's cause depended on proving General Greene a partner; but he failed in doing it, and having failed, it was said to be pretty strong presumptive evidence that it could not be proved; because Mr. Ferry might have brought a cross bill against General Greene, and oblige him to declare on oath that he was in no way interested in the suit, which he did not think it proper to do. The report of the committee was at length agreed to, as before stated, and a bill ordered to be brought in, which subsequently passed. By this decision, between £11,000 and £12,000 sterling will be paid out of the Treasury of the United States to the executors of General Greene. The yeas and nays, on the passing of the bill, stood, 55 to 24.] FRIDAY, May 27. _Amy Dardin's Horse._[79] On motion of Mr. CLAIBORNE, the House formed itself into a Committee of the Whole on the report of the Committee of Claims on the petition of Amy Dardin, who prayed for compensation for a very valuable horse which had been impressed during the war. The report was against the petitioner, on the ground of the act of limitation barring the claim. The case appeared a hard one, as a widow and orphans were in want of the money; and several members having suggested that application had been made before the act of limitation took place, proof of which could be substantiated, the committee rose, and the papers were recommitted to the Committee of Claims. MONDAY, May 30. _Military and Naval Appropriations._[80] The House went into a Committee of the Whole on the bill providing appropriations for the Military and Naval Establishments; when, On motion of Mr. W. SMITH, the blank for the sum for the payment of the Army was filled with $273,666. Mr. W. SMITH proposed to fill up the next blank, for the subsistence of the officers of the Army, with $68,480. Mr. GALLATIN said, he was not ready to vote for this object. It had been usual to appropriate the subsistence of the officers and non-commissioned officers and privates all in one sum. He did not know what were the separate calculations. Mr. W. SMITH believed that it had been usual to put the two subjects together heretofore, but the Secretary of War had suggested the propriety of placing them under different heads. It was therefore done. Mr. GALLATIN said, when he objected to this plan of putting the two objects together, it was not merely on account of the arrangement, but because he did not know the amount calculated for the different descriptions. He knew, however, the rations were calculated at 30 cents. He would move to fill the blank with 20 cents, which would be two-thirds of the amount proposed. He would give his reasons for thus filling the blank. It would be found, by a communication from the Secretary of the Treasury at the commencement of the session, that, in the estimate for the Military Department, rations were charged 15 cents each, making the whole subsistence for 6,000 men $367,061; notwithstanding the nominal Army Establishment had been reduced one-half, the total amount of expense was estimated as high as before. The items upon which an increase had been made, were subsistence, hospital, ordnance, and quartermaster's departments, and protection of frontiers. It would be found that, in the second estimate of the Secretary, lately made, rations were estimated at 30 cents each, which made the whole amount of subsistence $437,762. This difference in the estimate led the Committee of Ways and Means to an inquiry into the business, because, as the nominal establishment was decreased from 6,000 to 3,000 men, they had hoped there would have been some decrease of expense also. They received for answer, that rations could not be contracted at Detroit for less than 30 cents each; but though this, by the contract, was the price of rations at that post, they could not suppose they would cost the same at the other posts. It also appeared, from the information received from the Secretary of the Treasury, that the contract which had been made, was upon these terms--to furnish rations either at Detroit at 30 cents, or at Pittsburg at 11 cents, the place of delivery being at the option of Government. It would be seen that there was a difference betwixt those two prices of 19 cents; and he would ask whether any gentleman in that House believed that it would cost 19 cents per ration to transport them from Pittsburg to Detroit? He did not think that transportation would, on an average, cost 9 cents. The distance by land was not 200 miles; and water carriage would reduce it to 20. Mr. W. SMITH said, if agreeing to this motion would save the money, it would deserve attention; but, if they were to make the appropriation so small as to embarrass Government, it would be much worse than if they were to vote for a little too much. There would be a certain number of men who must be fed, and he thought they might rely upon the Administration's not giving more for rations than was necessary. But, if the sum voted was too small, what would be the consequence? The rations must be got, be the prices what they may; the men must be fed. Difficulties would arise if the fund appropriated should prove inadequate. He did not see that there would be any real saving by reducing the sum appropriated. Mr. BOURNE hoped the blank would be filled up with the sum proposed by the gentleman from South Carolina. It had been stated that rations might be purchased at Pittsburg for 11 cents, but they could not be bought for less than 30 at Detroit, and he thought they could not calculate upon any other price than that, as it was uncertain whether or not the contract would be fulfilled; and if it failed, and the Secretary of the Treasury was obliged to purchase at Detroit, if they calculated the rations at 20 cents only, he would not be able to purchase the necessary provisions for their men; but if, on the contrary, 30 cents were agreed to, there would be enough in any case, and if the ration could be bought for 20 cents, he did not fear that the money would be expended unnecessarily. Mr. VENABLE said he should not feel himself justified in appropriating more than was necessary for the object before them; for, if they were not to be guided by a proper estimate, they might as well at once give an unlimited power on the Treasury. All the expenses could not be estimated to be made at Detroit. If one-third of our men were kept at Detroit, he should think it a large number. Why, then fix the price as if the whole Army was to be kept there? And, even in that case, 20 cents would be a large appropriation. Why, then, embarrass themselves by making a larger appropriation than was necessary? The Army would be extended on the whole frontier, and at some places rations would be bought cheaper than at Pittsburg. Mr. DAYTON (the Speaker) observed, that the gentleman from Pennsylvania (Mr. GALLATIN) assumed as undeniable, and established as the foundation of his arguments and objections, what he did not only not admit, but absolutely denied, viz: that the rations of provisions would cost the United States more when delivered at Detroit, than at any other post. He believed there were two or three others at which the price would be higher than at Detroit, and mentioned Michilimacinac in particular. The gentlemen who were for reducing this item of appropriation, had referred to the contract which had been made some time since, and had, at the same time, acknowledged the extraordinary advance in the price of the necessaries of life, even in the interior of the country. The latter event, said Mr. D., was of a nature to excite much fear that the contract would be thrown back upon the United States, owing to the inability it would create in the individuals to fulfil it, and ought, therefore, to prompt Congress to guard against such an exigency, by a more ample provision than would otherwise have been requisite. Mr. W. SMITH said there was one fact which he forgot to mention. The Secretary of the Treasury informed the Committee of Ways and Means that the contractor would lose money by the contract to deliver the rations at 11 cents at Pittsburg, and it was possible, therefore, that it might not be fulfilled. Gentlemen say--why provide the money if it be not wanted? They seemed to mistake the business; the money was to be borrowed, and if not wanted, it would not be taken. No more would be expended because there was more than sufficient appropriated. There would be no money lying unemployed in the Treasury. Mr. GALLATIN believed the gentleman from South Carolina (Mr. SMITH) would not deny that his information was correct. The contract was made to deliver the rations either at Pittsburg or Detroit, at the option of Government. To calculate the whole number of rations at 30 cents, was considering the whole Army at Detroit; and, though it be true, that there be one post more distant than Detroit, yet, the greater number were far nearer, and consequently, where provisions would be got cheaper. Therefore, considering the price at Detroit to be the general price, was allowing too much. This, he believed, would not be controverted. Mr. NICHOLAS said, he should be glad to know what was the price of rations in the Atlantic States. One half of the Establishment would be upon the Eastern waters, and, therefore, the money necessary to be appropriated would depend, in some degree, upon the price of rations there. He thought 20 cents would be a full average price for the whole. Mr. HAVENS said, that if they were to fix the price too high, it might produce a combination amongst the contractors to advance the price--as he believed there was a greater likelihood of combination than competition amongst them. He knew this was no reason why they should fix the price too low, but he thought it was a consideration which should lead them to vote for the proposition of the gentleman from Pennsylvania. The original motion was put, and negatived, 34 to 31; and then Mr. GALLATIN's, to fill the blank with $45,606, was put, and carried. Mr. W. SMITH moved to fill the next blank, for the subsistence of non-commissioned officers and privates, with $369,282, which was calculating the rations at 30 cents each. The question was put, and negatived, 33 to 30. Mr. GALLATIN then moved to have the blank filled with $246,188, which was calculating the rations at 20 cents each. Mr. DAYTON hoped that the sum named would not be agreed to; if it were, he believed that the soldiers of the Army would not be subsisted. He was satisfied that gentlemen who proposed and advocated so scanty and inadequate sums had the same views as he had; but he was, nevertheless, convinced, that so far from promoting economy, they would eventually produce profusion. Mr. DAYTON concluded with saying, that he did not wish to appropriate lavishly, but his sole aim was to avoid any of those serious consequences which would inevitably flow from an ill-judged parsimony; and he should sit down and console himself under any event, with the reflection, that he had discharged his duty. Mr. W. SMITH moved to fill the blank with $360,000, which was carried, 34 to 31. On motion of Mr. W. SMITH, the blank for forage was filled with $16,592, and that for clothing was filled with $70,000, without debate. He proposed to fill the blank for providing horses for cavalry, with $7,500; when Mr. BLOUNT observed, that he thought it unnecessary to provide for the purchase of horses, when they had resolved upon reducing the number of troops. Mr. GALLATIN said he would just notice, that when the full number of horses was kept up, the appropriations for clothing were the same as now, and those for horses were less. The former estimate was $6,000 for horses; now, $7,500; so that the more they reduce the Army, the greater was the expense. Mr. MACON believed, there were as many horses now in the service as would complete two companies, and they could not, with any propriety, calculate upon one-half dying. He moved to strike out the item altogether. The motion was put and negatived, 33 to 26. Mr. HAVENS said, he did not vote for striking out the item altogether, as he supposed some money would be wanted, but could not think so much as had been mentioned was necessary. The motion for $7,509 was put and carried, 34 to 31. On motion of Mr. W. SMITH, the blank for bounty was filled with $10,000, and that for Hospital Department with $30,000, without objection. He also proposed to fill the blank for the Ordnance Department with $48,907, when Mr. GALLATIN said, that this sum was $11,000 more than the former estimate; $1,000 of which was owing to an increase of rent. The other additional item of $10,000 was for contingent expenses; but, as they had a distinct head for contingent expenses he thought that the contingencies would be best, all of them, placed under that head. He therefore moved to have the blank filled with $38,907. Mr. WILLIAMS proposed $40,000, which was carried. Mr. W. SMITH proposed to fill the blank for the Indian Department with $70,000. Mr. GALLATIN said, it would be recollected that they had already made two appropriations under this head; the one for establishing trading-houses with the Indian tribes, the other for carrying into effect several treaties. On inquiry what reason there was for this appropriation, he could only find one, viz: that a treaty was expected to be held in Georgia, at which 3,000 Indians were to be present. He had supposed this expense was to have been borne by Georgia, but it was alleged that a part of it would fall on the United States. The motion was put and negatived, 33 to 26; when Mr. W. SMITH proposed $60,000. He would mention, that the Secretary of War had been called upon to give a reason why so large a sum should be appropriated; when they were told of the treaty which the gentleman from Pennsylvania had mentioned, and that it would be necessary to have a large store for the purpose of feeding and clothing the Indians who attended it. The motion was then put and carried, 31 to 28. Mr. W. SMITH moved to fill the blank for the Quartermaster's Department with $250,000. Mr. GALLATIN said, it would be remembered that in the estimate at the opening of the session, this item was calculated at $200,000. The reason given for this advance, was, that the expense of removing stores, ordnance, &c., to new posts, would be very considerable; but, it would be recollected, that $200,000 only were appropriated for that purpose in the time of war, when the Army was liable to be removed very often. The present estimate was for a Peace Establishment, when their men, once removed to the new posts, would be stationed; and the appropriation, instead of for 6,000 men, was now only for 3,000. He moved to insert $200,000, instead of $250,000. Mr. BLOUNT said, he supposed the taking possession of the posts was contemplated when the first estimate was made. It was then known the British had stipulated to surrender them on the 1st of June. Mr. W. SMITH said, it was not certain when the first estimate was made, whether that House would have ratified the treaty; and, if not ratified, the posts would not have been got. The increased calculation was owing to the expense in transporting ordnance, stores, &c., to the posts. Mr. ISAAC SMITH said, it would require more cannon for one of those posts, than were required by all the Army. Mr. BLOUNT said, they had had sufficient proof to lead them to believe, that the PRESIDENT did not think that House had the power mentioned by the gentleman from South Carolina, and, therefore, he doubted not but the first estimate was made with reference to the expense of taking possession of the posts. The motion for $250,000 was put and negatived, 31 to 26; when $200,000 was put and carried. Mr. W. SMITH, moved to fill the blank for contingencies of the War Department with $30,000; which was carried without opposition. He then proposed to fill the blank for the defence and protection of the frontiers with $150,000. Mr. GALLATIN said, he certainly wished the frontier to be protected, but he could not think so large a sum necessary for that purpose. The sum last year appropriated was $130,000; and now we had peace with the Indians, which was secured not only by a treaty with them, but by treaties with Great Britain and Spain, he could not account for an increased expense. The motion for $150,000 was put and negatived; $130,000 was then proposed and carried, 34 to 33. Mr. W. SMITH proposed to fill the next blank, for the completion of the fortifications, &c., at West Point, with $20,000. Mr. NICHOLAS inquired if there was any law on this head? Mr. W. SMITH said, there was an act to authorize a provision for this purpose, but that act had expired. He believed, however, it might properly come in there. This expense, he was told, was necessary to make the posts tenable, and that if no money was expended, the fortifications would be lost. He believed this item might properly be considered as a part of the Military Establishment. Mr. NICHOLAS said, he did not object to the propriety of the expense, but to the manner of introducing it. It would apply to New York as well as West Point. He considered the admission of West Point as the admission of a principle to which all the surplus appropriations might be applied. All the fortifications, he said, were in the power of the Executive; but, as they had had a committee appointed on the business, whose report they had considered, he thought they should act consistently. He therefore moved to strike out the clause. Mr. WILLIAMS hoped this item would not be struck out, and that the PRESIDENT would be enabled to extend aid to the fortifications at New York; if not, the works would go to decay. Mr. VAN CORTLANDT said, that fortifications ought to be attended to, and that he should vote for them. Mr. GILES hoped the motion would prevail. There had been a committee most of the session, to consider the subject of fortifications. If these fortifications stood in need of repair, the PRESIDENT should have given the information to that committee. He thought the item improper in the present bill. Mr. GALLATIN believed the gentlemen from Virginia were mistaken. The committee which had been appointed was to consider the fortifications of our harbors only. The works at West Point were of a different description, and the estimate included not only the completing of the fortifications, but the building and repairs of barracks and stores which had been destroyed. The present item could not extend to fortifications in general, as had been apprehended; for, though the Secretary of the department does not confine the money appropriated to one object, to that particular purpose, yet, he cannot expend it on any object which was not contained in the act of appropriation. He moved to add, "magazines, store-houses, and barracks." Agreed to, and also the sum. Mr. W. SMITH then moved to fill the blank for the fortification of forts and harbors with $50,000. Mr. GALLATIN said, this item he should move to strike out. A committee had been appointed, and had reported on this subject, and that it was not necessary to attend to it at present, as there was a surplus of $23,000 unexpended. If they were to agree to the present sum, it would be appropriating an additional sum of $50,000 for the same object; he hoped, therefore, that it would be struck out. Mr. W. LYMAN was in favor of striking it out. Mr. WILLIAMS hoped it would be agreed to, on the ground of the necessity of some attention being paid to the works at New York. Mr. DAYTON was in favor of striking out this item altogether, as there really was not money to spare for objects not essential. If any particular harbor had been, or could be mentioned, the committee might better be enabled to judge whether it would be fit, at this time, pressed as they were for resources, to make an appropriation for fortifying it, and how much. But, as he knew of none, and believed there were no such, he should certainly be opposed to appropriating a single shilling for this purpose. He meant not to say, that there were not ports in the United States which might be advantageously fortified, but only, that this country was not yet in a situation to justify their encountering such an expense, especially as it did not appear to be immediately necessary. The motion for striking out was put, and carried. Mr. W. SMITH moved to fill the blank for the pay of officers, seamen, and marines, with $113,025. Mr. NICHOLAS hoped this item would be struck out. It was certainly an expense for which there was no occasion. He did not wish to see men raised when they could be of no service. The frigates, he said, could not be fit for service before the next session. He hoped, therefore, no opposition would be made to the striking out of the clause. Mr. W. SMITH said, they had authorized by law the building of three frigates, and it was wished that they should go into service the present year. If the whole sum was not appropriated, there would certainly be a necessity for a part of it. Mr. NICHOLAS moved to strike out the item as it stood, and insert, "the pay of the captains of three frigates." Mr. MACON believed these were the only officers at present appointed. Mr. HAVENS wished gentlemen to say why these captains should be paid at all. He believed that building of ships was not their business, and that these places were at present mere sinecures. He should therefore vote against the amendment. Mr. W. SMITH said, it would be necessary to add subsistence as well as pay of three captains, and moved to fill the blank with five thousand dollars; which, after a few observations, was agreed to. On motion of Mr. W. SMITH, the blank for military pensions was filled, without opposition, with $114,259. The committee then rose and the House entered upon the consideration of the amendments which had been made, when all were agreed to, except that relative to the subsistence of the non-commissioned officers and privates.[81] WEDNESDAY EVENING, June 1. Mr. J. SMITH, from the committee appointed to wait upon the PRESIDENT OF THE UNITED STATES, to notify him of the intention of both Houses to adjourn on this day, reported his approbation thereof. The business before the House being finished, a message was sent to the Senate, to inform them that the House was ready to adjourn. Whereupon, after waiting some time to receive any answer that might be sent thereto, without receiving any-- The SPEAKER adjourned the House until the first Monday in December next. INDEX TO VOL. I _Acts of Congress._--Propriety of limiting the period of their operation, note, 82; safe-keeping of, 129. _Adams, John_, elected Vice President in 1789, 10; voted for as President in 1789, 10; in 1793, 385; addresses the Senate on taking the chair as Vice President, 11; Vice President U. S., 441, 520. _Address, Inaugural._--Washington, 12. _Address of the Friends in Pennsylvania, &c._, urging the discontinuance of the Slave Trade, 201. _Address of House to President._--In committee, on answer to the President's Address; clause respecting the Western expedition against the Indians under consideration, 256; alarm occasioned by the Greek treaty, 256; secret articles thus early, 256; sufferings of the people of Georgia, 286. Encouraging navigation considered, 257; too early for the House to commit itself, 257; mode of expression might conduce to the exclusion of foreign bottoms, 257; expressions of the President, 257; amendment proposed, 257; exclusion ruinous to Southern States, 257; the words of the report and amendment, 257; not be hasty to declare all exports shall be in American bottoms, 257; tonnage duties paid in Georgia, 257; a substitute proposed, 258; no reason to think the House will be committed by adopting the Address, 258; two modes of answering the Address, 258; amendment lost, 258. _Answer to the Presidents Speech_, debated, 532; _note_, 532; the House should not bow so much to the President as to approve of his proceedings without knowing what they were, 532; he says his policy in regard to foreign nations is founded in justice; we intend to convey a general sentiment of approbation, 532; the amendment proposes substantial approbation, 532; the distinction is trifling, 532; the mission of Mr. Jay should not be approved till we know his instructions, 532; better withdraw the motion than to bring it forward at such an expense of temper, 533; motion withdrawn, 533; amendment moved relating to self-created societies, 533; an excitable expression, 533; self-created societies of the country, 533; as improper to pass a vote of censure as one of approbation, 534; the conduct of these people had tended to blow the insurrection, 534; objected that these societies will acquire importance by a vote of censure, 534; amendment of no weight, 535; leave the societies to their own conscience, 535; this declaration from the House will tend to discourage Democratic Societies, 535; persons most violent against the excise laws had been equally so against the insurgents, 535; the President did not want them to intermeddle with the societies, 536; the societies had produced Western insurrection, 536; the effects of the societies, 536; the societies composed of patriots, 537; amendment can answer no purpose but that of disturbing the public peace, 538; the evils arose from the excise laws, not from Democratic Societies, 538; the Democratic Societies in a great measure originated the late disturbances, 539; misinformation existed, 540; amendment lost, 540. _Answer to President's Message to 1st Session of 4th Congress_, considered in the Senate, 594; nothing should be contained in it such as to force the Senate to precipitate decisions, 594; _note_, 594; two clauses objectionable; our situation is not in every way auspicious, 594; nothing reasonably objectionable, 594; some members could not vote for the Address without palpable inconsistency, 595; every article of the Treaty objectionable, 595; the term "firm" applied to the Executive improper, 595; the ratification of the Treaty in all its aspects is advisable, 595; the objections considered, 595; the clauses record a fact, 596; further consideration of the objections, 596. _Answer to President's Speech, 1st Session of 4th Congress_, considered in the House, 605; practice of addresses disapproved, 605; practice coeval with the constitution, 605; moved to strike out certain words, 606; clause goes too far, 606; the confidence of a part of the people was diminished, 607; motion denies confidence of the House and the public in the President, 607; such a thing was once supposed impossible, 607; what are the facts? 607; defence of the President, 608; recommitted, 608. _African Slaves._--Motion to bring in a bill relative to their importation, 84. See _Duties on Imports and Slavery_. _Algerine War_, report of the committee on, 475; resolution to build four ships of forty-four, and two of twenty guns considered, 475; cannot be done in a year, 475; two points to be considered--do the Algerines act from their own impulse in this matter? if so, they can be bought, 475; if excited by Britain, they cannot be bought, 475; there is danger of a British war from fitting out the ships, 475; the combined powers would regard their equipment as an opportunity to pick a quarrel, 475; the ships would be too small to be important in Europe, 475; British would attempt to search them, hence a quarrel, 475; bribery alone can purchase security from the Algerines, 476; not a match for the Algerines, 476; harbors for American ships in Europe, 476; views on the subject, 476; no security if we buy a peace, 477; an armament urged, 477; Britain is the cause, Algiers the instrument, 477; this expedient unlikely to answer the purpose, 477; competency of the ships examined, 478; the charge against Britain unfounded, 478; this country not in a state for war, 478; _note_, 478; six vessels sufficient, 479; the bill regarded as affording protection to commerce against the Algerines, and as the foundation of a permanent Naval Establishment, 480; various objections urged to this view, 480; the question is simply whether our commerce requires protection against the Algerines, and whether this is the best course to protect it, 482; these points considered, 482; objections to the bill reviewed, 482; argument against a Naval Establishment considered, 482; passage of the bill, 482. _Allegiance, Foreign_.--See remarks of Madison and Jackson, 97 and 98. _Amendments to the Constitution_.--Application of the Legislature of Virginia for a convention to consider defects, and report amendments, 47; debate, 47; this application should remain on the files until proper number of applicants come forward, 47; any subject can be referred to a committee, 47; the propriety of committing it doubtful, 47; Congress has no deliberative power on this occasion, 48; the application of a State should be respected and regarded, 48; it should be entered at large on the files of the journal, 48; so ordered, 48. _Proper mode of amending considered_, 133; proposition to insert after the words "We the people," in the first paragraph, a brief clause, 133; not the proper mode of amending the constitution, 133; it should be done by supplement, 133; moved to amend by a resolution declaring, "That the following articles be proposed as amendments," &c., 133; form of less importance than substance, but there is a neatness and propriety here in incorporating articles, 134; method proposed by the resolution incompatible with the constitution, which requires amendments to form a part of the constitution, 134; all amendments should stand separate from the constitution--see precedents, 134; supplementary form most desirable, 134; by incorporation the original instrument may be entirely gone, 135; can the mode make any possible difference, 135; how can amendments be incorporated, 135; report of committee founded on recommendation of State conventions, 135; the original constitution should remain inviolate, and not be patched from time to time like Joseph's coat, 136; _magna charta_ never altered by incorporation of amendments, 136; arguments for incorporation considered, 136; motion lost, 137; see _note_, 137. _Freedom of conscience considered_, 137; proposition to insert the words, "no religion shall be established by law, nor shall the equal rights of conscience be infringed," 137; the words liable to a wrong construction--have a tendency to abolish religion altogether, 137; amendment unnecessary--Congress no authority to make religious establishments, 137; many sects think they are not well secured, and the effect of amendment will be conciliatory for the new government, 137; some States had desired it, 137; reason thereof, 137; experience of Rhode Island, 137; apprehensions of the people, 138; result, 138. _Right of instruction considered._--On a motion to insert the words, "to instruct their representatives," an amendment proposed, 138; arguments against the right, 138; its propriety in this country, 139; if our constituents have a constitutional right to instruct, we are bound to obey, 139; the words are calculated to mislead by conveying the idea to the people that they have a right to instruct, 139; duty of a representative, 139; dangerous tendency of the doctrine, 140; what may be the consequence of binding a man to vote according to the will of others in all cases, 140; arguments in favor, 140; this amendment is of a doubtful nature, and will have a tendency to prejudice the whole system, 141; if sovereignty resides with the whole people, they cannot, in detached bodies, contravene an act established by the whole, 141; the clause would not bind representatives, 141; it will operate inconveniently to the more distant States, 141; under its adoption, one member as good as many, 141; no law of the House would be of force if a majority were instructed against it, 141; subversive of the principles of the constitution, 141; must members violate the constitution if instructed, 142; objections further considered, 142; no instruction should have binding force, 143; right of State Legislature to instruct the House opposed, 143; absolute necessity of adopting the amendment, 143; no right of obligation claimed for instructions heretofore, 144; constitutions of several States recognize the right, 144; motion lost, 144; another motion, 144. _Amendments_ proposed in the Senate relative to the judiciary power of the United States, 445; do. passed in Senate, 446. AMES, FISHER, Representative from Massachusetts, 21, 175, 255, 315, 388, 527, 637; on duty on molasses, 30; on duty on hemp and cordage, 37; moves duty on barley and lime, 38; remarks on tonnage duties, 48; remarks on tonnage duties, 54; on the scale of duties on imports, 59, 62, 65; would make no bargain or compromise relative to duties on imports, 69; further remarks, 70, 71; opposes the motion to lay duty on African slaves, 74; thinks a limitation of the impost bill injurious to public credit, 79; further remarks, 80, 84; on the admission of Rhode Island, 101; on the President's power to remove officers, 106; on the organization of the Treasury Department, 110; on the compensation of the Vice President, 122; on the right of instructions, 143; on the location of the seat of government, 158; further remarks, 160; on manner the Secretary of the Treasury shall make his report, 177; on the discrimination between foreign and domestic debts, 195; on discrimination of public creditors, 215; moves to strike out "Potomac," and insert Germantown as seat of Government, 249; on excise officers, 271; further, 272; on the commitment of the bill for a Bank of the United States, 273; do. speech on the bank, 278; on report of Secretary at War, 317; on the bill for the encouragement of the Cod Fisheries, 353; on attendance of Secretary of War, 391, 392; on discharging Committee on defeat of St. Clair, 393; on petition of Warner Mifflin, 397; on official conduct of Secretary of Treasury, 436; on the commerce of the United States, 468; on fighting the Algerines, 477; in favor of taxing salt, 506; urges duties on manufactured tobacco and refined sugar, 507; on the advance of money to France, 514; on an increase of the army, 515; on raising a force for protection of S. W. frontier, 517; on the President's speech, 532; on resolutions of thanks to General Wayne, 545; on the renunciation of nobility for citizenship, 562; on reference of letter of Secretary of War, 568, 569; on the execution of the British treaty, 743. AMY DARDIN'S horse, claim for, 763; _note_, 763. _Apportionment Bill, see_ Ratio of Representation; veto of, 374; action of the House on, 374. _Appropriations_.--Bill for the appropriations for 1792 considered, 330; various amendments proposed, 330; bill recommitted, 330. _The Right of Congress to withhold_ appropriations from existing establishments considered, 625; _note_, 625; moved to strike out all appropriated for the officers of the mint, 625; such motion cannot regularly be brought forward, 626; the bill is conformed to the state of the public engagements, 626; an investigation should be made on an independent footing, 626; a discretionary power in the House to appropriate or not, 626; when legal establishments are made, neither branch has a right to withhold its assent to appropriations conformable to the public engagements, 626; illustration, 626; the House is not to pass an appropriation bill as a matter of course, 627; amendment agreed to, 627; in the House, moved to strike out all appropriated to the mint, 627; motion to strike out an appropriation for the purpose of bringing the policy of a law into discussion, is repugnant to legislative duties, 627; doctrine of discretionary power not correct, 627; no appropriation should obtain sanction unless the House were convinced of the propriety of the law, 627; otherwise the House becomes a mere office for registering edicts, 628; House has no right to obstruct the operation of the laws while they exist, 628; otherwise, the House has a right to refuse an appropriation to pay a just debt, 628; a constitutional view, 628; mode of getting rid of an establishment by refusing appropriations not the constitutional one, 628; expenditure of Washington's administration, _note_ 629. _The bill providing appropriations_ for military, &c. establishments considered, 763; debate on the value of rations and the amount appropriated, 764; the army had been reduced, but not the expenses, 764; various sums proposed for the gross amount for different objects, 765; other items considered, 766; _note_ 767. ARMSTRONG JAMES, votes for, as Vice President, in 1789, 10. ARMSTRONG JAMES, Representative from Pennsylvania, 455, 528. _Army, Memorial of Officers of_, 397. _Army, Reduction of_--Resolution for the appointment of a committee to bring in a bill for the reduction of the United States Military Establishment considered, 398; reasons and necessity of the motion, 398; expenses, charges, and increase of the War Department, 398; _note_, 398; the protection of the frontiers considered if the army is disbanded, 399; amount of reduction suggested, 399; expense of militia expeditions, 399; improper time to disband the army when negotiations of peace are going on, 399; been warring with our finances to keep up an army, 400; dangerous so suddenly to alter the system, 400; strange statements of members considered, 400; referred to Committee of the Whole, 401; calculations examined, 401; circumstances requiring a force, 401; history of the frontier wars, 402; superiority of regular troops over militia shown, 402; case of Major Adair, 402; successes of Clark and Sevier, 402; improper to take militia to fight Indians, 403. Improper to adopt the motion under the present circumstances of the country, 404; former law gave President power to exercise his discretion, 404; have circumstances so changed as to render it proper for the Legislature to interfere? 404; the great object of the additional armament is peace, 404; cannot rely upon the backwoods riflemen to turn out as often as wanted, 404; the President has practised economy in organizing the troops voted for, 404. The motion only goes to prevent the raising any more troops, it does not disband a man, 405; militia always more spirited soldiers, and fitter for fighting the Indians than regulars, 405; experience with militia, 405; no peace can be obtained from the Indians unless dictated by British agents in Canada, 406; any immediate alteration of the system dangerous under present circumstances, 406; the spirit of the motion in regard to the prevention of standing armies is good, 407; the reduction of the military establishment will neither put an end to the savage war, nor to the enormous expense, 407; consider the state of the exposed parts of the Union, 407; these people demand the protecting arm of Government, 408; commenced wrong in warring with the Indians, 408; if public officers have misapplied the public money, the constitution pointed out a mode to punish them, 408; the defence of the frontier is of superior concern to the redemption of the public debt by savings to be made by a reduction of the army, 408; a particular plan is set in operation, and it should be tried, 409; confidential communications referred to, 409; this protection of the frontiers is a test of the Government, 409; this Indian war differs from any other, 410; not sufficient information respecting the prospect of peace to warrant a reduction of the army, 410; any abuses in the war establishment are insignificant, 410; regular troops grow experienced, and by a line of forts trade can be cultivated with the Indians, 411; the most important question before the House--on its decision are suspended the hopes of the people for peace and their fears of a standing army, 411; the principle of keeping up standing armies, though highly obnoxious to the people, has not been equally so to the Government, 411; effects of standing armies, 411; much deliberation is not necessary to form an opinion of military establishments, 411; the arguments of the opponents lead to four points, 412; these points considered, 412; although a war establishment is objectionable, this system should not be arrested at the moment of its efficiency, 414; a standing army is impossible so long as this House holds the purse-strings, 414; motion lost, 415; further considered, 416. _The Pay of Soldiers proposed_ to be increased from three to four dollars per month, 459; motion to add a fifth dollar, 459; no proportion between the wages of ordinary labor and that of military service, 459; it was justly due, 460; no reason for this increase of wages, 460; better to increase the rations, 460; six dollars had secured some of the most respectable kind of people in Pennsylvania, 460; further considerations offered, 461; motions withdrawn, 461. _Bill to increase the Army_, lost, 511; bill to increase the military force and to encourage recruiting, considered, 515; principle of the bill wrong, 515; is it proper to intrust the President with a discretionary power to raise an army of ten thousand men owing to the particular state of the country? 515; if we have war, it is economy to be prepared beforehand, 515; no danger to trust the President, 515; the force can be discontinued at our pleasure, 515; it would involve the country in useless expense, 515; the interests of the country promoted by vesting the President with this power, 515; what would be the consequence if he cannot make preparation when he sees the war approaching, 516; no such immediate prospect of war as could induce the House to violate the constitution, 516; under the constitution one branch of the government raises an army, and the other conducts it, 516; it encroaches upon a salutary principle of the constitution, 516; bill rejected, 516. _Amendments of the Senate_, fixing the military establishment considered, 759; number of troops sufficient without this amendment, 759; amendment to keep a larger number of troops, negatived, 759; moved to retain the Major General, 759; question debated, 760; lost, 760. _Arts useful_, to promote progress of, 259. ASHE JOHN BAPTIST, Representative from North Carolina, 239, 259, 317. _Assumption of State Debts.--See_ Treasury, Report of Secretary of. B BAILEY THEODORE, Representative from New York, 455,527, 604. BAIRD DAVID, Representative from Pennsylvania, 604. BALDWIN ABRAHAM, Representative from Georgia, 42, 175, 255, 317, 388, 455, 527, 604; on the practicability of collecting duties, 63; on organization of Treasury Department, 93; on the preparation of estimates by the Secretary of the Treasury, 113; on the compensation of the President, 116; further remarks, 119; on power of Congress to interfere with slavery, 209; presides in Committee of the Whole, 216, 220, 221, 228; on memorial of officers of Navy, 240; on vacancy in the Presidency, 269; on ratio of representation, 322; on the meeting of the Electoral College, 333; on the preparations for the Algerine war, 476; on admission of the delegate south of the Ohio, 530; on a salary for members of Congress, 636; on a stenographer for the House, 631; on Post-roads, 637; on rights of the House relative to treaties, 659; on the admission of Tennessee, 756. _Bank of the United States._--On the passage of a bill from the Senate to incorporate the subscribers to the Bank of the United States, 272; recommittal moved, 272; various objections to the bill, 272; no argument in favor of a bank can be deduced from Great Britain, 272; no necessity for a bank, 273; plan unconstitutional, 273; Government has power to borrow money and therefore had a right to create capital to facilitate it, 273; its operation benefits all parts of the Union, 273; bill should be recommitted as too important to pass without discussion, 273; other objections urged, 273; clause of constitution respecting monopolies refers to commercial monopolies, 273; no sufficient reason for recommitment, 273; fault of members if they have not offered their objections, 274; motion for recommitment lost, 274; put on its final passage, 274; advantages and disadvantages of banks, 274; is the power of establishing an incorporated bank vested by the constitution in the Legislature of the United States? considered at length, 275; rules of interpretation, 275; clauses upon which constitutional power is based, 275; general welfare clause, 275; various answers to it, 275; former bank no precedent, 275; this is not a bill to borrow money, 276; the clause, "All laws necessary and proper," &c., does not give unlimited discretion to Congress, 276; the Government is of limited and enumerated powers, 276; consequences of considering that the power to borrow authorizes the creation of means to lend, 276; various objections urged, 277; distinction between a power necessary and proper for the Government, and a power necessary and proper for executing an enumerated power, 277; contemporary expositions of the constitution, 277; if the power is in the constitution, its immediate exercise is not essential, 278; motion to recommit lost, 278; bill put on its passage, 278. Little doubt of the utility of banks, 278; constitutional question examined, 279; may Congress exercise any powers not expressly given in the constitution but deducible by a reasonable construction of it, and will such construction warrant the establishment of a bank? 279; the doctrine of implied power has been a bugbear to many, 279; danger of implied power does not arise from its assuming a new principle, 279; not exercising the powers we have may be as pernicious as usurping those we have not, 279; if some interpretation of the constitution may be indulged, by what rules is it to be governed, 280; Congress may do what is necessary to the end for which the constitution was adopted, if not repugnant to natural rights or reserved powers, 280; as the bank is founded on the free choice of those who use it, and highly useful to the people and government, a liberal construction is natural and safe, 280; a presumption in favor of its conformity to the constitution, 280; necessity of a bank to other Governments, 280; if war should suddenly break out here, is Congress to provide for it? 280; objected, that necessity is the tyrant's plea, 280; how does Congress get the right to govern the Western Territory, 281; is the establishment of a national bank a violent misinterpretation of the constitution, 281; are corporate powers incidental to those which Congress may exercise by the constitution, 281; Congress may exercise exclusive legislation in certain places--of course establish a bank, 281; the preamble to the constitution warrants the remark that a bank is not repugnant to its spirit and essential objects, 281; Congress may exercise all necessary powers, 282; constitutionality never before doubted, 282; the whole business of legislation is a practical construction of the powers of the Legislature, 282; immense difficulties to be surmounted on all important questions, 282; whenever a power is delegated for express purposes, all the known and usual means for the attainment of the objects are conceded, 282; if banks are among the known and useful means to facilitate and effectuate the ends of Government, the argument is irrefragable and conclusive to prove the constitutionality of the bill, 283; the utility of banks, 283; answer to various objections, 284; silence of the people is presumptive that they regard the measure as constitutional, 284; every power necessary to secure the great objects of the constitution must necessarily follow, 284; the power of removability had been construed, it was as important as the present, 285; numerous objections considered, 285; the expediency of banks considered, 285. Latitude in construing the constitution to be reprobated, 285; bill will interfere with State rights, 285; arguments drawn from implication considered, 286; that banks may exist without a charter reprobated, 286; construction of powers considered, 286; the powers relative to finance do not warrant the adoption of any powers thought proper, 286; power over Western Territory had reference to property already belonging to the United States, 286; necessity of proposed institution denied, 286; general welfare clause, 286; European banks, 286; facility of borrowing will involve the Union in irretrievable debts, 287; a geographical line divides friends and opponents of the measure, 287. Is Congress vested with power to grant privileges contained in the bill? considered, 287; what rights will this company enjoy in this new character that they did not enjoy independent of it, 287; the bank must be a legally artificial body composed of these rights, 288; is not this simple power fairly to be drawn by necessary implication from those vested by the constitution in the legislative authority? 288; not express but necessarily deduced, 288; peace is preserved by being always prepared for defence--this is a duty of Congress, but it must borrow money to secure it, which a bank can aid, 288; banks only are reliable for borrowing money, 289; a national bank is the necessary means for this end, 289; numerous powers have been exercised which were deduced by implication, 289; if power was given to raise an army, the making provision for all the necessary supplies and incidental charges was included, 290; quotations from the Federalist, 290; some objections to a bank considered, 291; no preference shall be given to one part of the Union over another, not an objection, 291; this clause inserted for a particular purpose, 292; expediency of a national bank, 292; divisions of opinion in Philadelphia, 292; instances of implied powers exercised, 292. Members vary widely in their opinion of the direction of the Government, 292; the Continental debt has travelled eastward of the Potomac, this law is to raise the value of that paper, 292; implication a serpent that may sting and poison the constitution, 293; it destroys the principle of the Government at a blow, 293; it is agreed that the power is not expressly granted but implied, yet it is not agreed as to the particular power to which this is an incident, 293; latitude of principles premised reprobated, 293; the form not only points to the ends of Government but specifies the means, 293; if all laws proceed from expediency, what becomes of the constitution? 293; the idea that no implication should be made against the law of nature, &c., is hostile to the main principle of our Government, 293; review of precedents in the former and present Congress which are relied on to justify the measure, 294; arguments of its advocates considered, 295; there is no necessity, no occasion for a bank, 295; propriety of its adoption not manifest, 296; source of all the arguments in favor of the measure, 296; arguments in favor of the measure, or the doctrine of implication considered, 297; authority to grant charters in general, 297; preamble of the constitution, 297; other clauses, 297; general welfare clause, 297; to regulate commerce, 298; the terms "necessary," and "proper," 298; exclusive jurisdiction considered, 298; derived from its incidentality to the mere creation and existence of government, considered, 298; does it not interfere with rights of States? 299; expediency of the measure considered, 299; the right of exercising this authority problematical, 300; death will be the penalty of counterfeiting, thus a life at stake on one hand, and an improvident act on the other, 300; two modes of administering the government, 300; objections to the bill in detail, 300; unconstitutionality considered, 300; Blackstone's rules of interpretation, 301; what is the meaning of the word "necessary," 301; rules of Blackstone applied, 302; this mode of interpretation compared with that of opponents of the bank, 303; the usage of Congress considered, 303; sense of the Federal Convention considered, 304; no such consequence as a monopoly can result from the bill, 305; Congress cannot give authority to purchase land, considered, 305; the sense of the Continental Convention is regarded differently by senators, 305; the restriction contended for would annihilate the most essential rights of the citizens, 305; origin of corporations, 305; various objections illustrated, 305. Warmth and passion should be excluded from this question, 306; the powers proposed to be given do not exist antecedent to the incorporation, 306; various arguments examined, 306, 307; defects of the bill, 307; previous question moved, 308; bill passed, 308. Motion made in the Senate to exclude Bank officers and stockholders from Congress, 445; amendment proposed, 446; amendment to the amendment passed, 446; further amendments considered, 446. BARNWELL, ROBERT, Representative from South Carolina, 317, 390; on ratio of representation, 322; on the cod fisheries, 356; on official conduct of the Secretary of the Treasury, 421, 426. BASSET, RICHARD, Senator from Delaware, 9, 251, 313, 383; appointed on Judiciary Committee, first Congress, 10; on committee on rules in cases of conference, first Congress, 10; on manner of electing chaplains, 10; on rules of business, 10. BEATTY, JOHN, Representative from New Jersey, 455, 527. BECKLEY, JOHN, elected Clerk of the House, 21,315, 604. _Beef, Salt._--Duty on, opposed and rejected, 34. _Beer, ale and porter_, in bottles or casks, 33; duty on, 34; beer, duty on, 113. BENSON, EGBERT, Representative from New York, 23,175, 255, 317, 388; on committee for reception of President, 27; reports on reception of President to the House, 33; reports from committee on administering the oath to the President, 45; moves the organization of three executive departments, 85; further remarks, 85; on a Board of Treasury or Superintendent of Finance, 92; on the Treasury Department, 109; on the form of amending the constitution, 135; on manner in which Secretary of Treasury shall make his report, 177; on motion to discriminate among the public creditors, 217; presides in Committee of the Whole, 229; on vacancy in the Presidency, 268, 270; on the stamp of American coins, 372. BENTON, LEMUEL, Representative from South Carolina, 519, 555. _Bills, Money._--Power to originate, 110; do. enrolled--a standing committee ordered, 129. BINGHAM, WILLIAM, Senator from Pennsylvania, 591. BLAIR,----, chosen chaplain of the House, 316. BLAND, THEODORICK, Representative from Virginia, 21; remarks on duties on imports, 28; on duty on Madeira wine, 31; opposes a duty on salt beef, 34; regards duty on nails, &c., unequal, 38; presents application of Virginia for amendment of constitution, 47; remarks, 47; advocates low duties on imports, 61; urges appointment of committee of conference on first disagreement between the two Houses, 67; urges limitation of the impost bill, 78; in the power of the President to remove officers, 87; further remarks, 89; believes the power of Congress to require oaths of State officers. BLOODWORTH, TIMOTHY, Representative from North Carolina, 255; on excise bill, 265; further remarks, 271; Senator from Maryland, 591. BLOUNT, THOMAS, Representative from North Carolina, 455, 527, 604; the right to Indian lands within a State, 578; on intruders on Indian lands, 585; on the admission of Tennessee, 755, 757. BLOUNT, WILLIAM, Senator from Tennessee, 602. BOUDINOT, ELIAS, Representative from New Jersey, 21, 175, 255, 315, 388, 455, 527; informs the Senate of the readiness of the House to meet them and count the electoral votes, 10; urges scale of duties on imports proposed by Congress in 1783, 23; engages in the debate, 26; further speech, 27; on duty on distilled spirits, 28; do. on molasses, 28; on duty on Madeira wine, 32; on duty on hemp, 36; favors duty on teas, 42; reports on reception of President, 44; opposes high duties, 44; on the application to amend the constitution, 47; reviews objections to high and low duties in regard to collection, 63; on no limit to the impost bill, 78; further remarks, 83; moves organization of executive department, 85; further remarks, 85; on the power of the President to remove officers, 88; whether the treasury shall be composed of one or many officers, 93; on the duties of Secretary of the Treasury, 110; on providing house and furniture for the President, 117; further remarks, 119; on pay of Vice President, 122; presides in Committee of Whole, 126; on amount of pay of members, 132; further remarks, 133; presides in Committee of the Whole, 145; moves Potomac, Susquehanna, or Delaware, instead of east bank of Susquehanna for seat of Government, 162; on importance of the report of the Secretary of the Treasury, 182; on the assumption of the State debts, 194; further remarks, 197; on the constitutional right of an attempt to depress the slave trade, 203; remarks on the motion to discriminate among public creditors, 207; further remarks, 211; on Pennsylvania memorial, 235; moves to strike out "Potomac," and insert "Delaware" for seat of government, 249; offers resolution for a land office, 260, 261; on the commitment of the bill for a Bank of the United States, 274; speech on the bank, 287; on report of Secretary of War, 317; on the ratio of representation, 320; further remarks, 324: on the petition of Catherine Greene, 336; against attendance of Secretary of War, 391; on discharging committee on defeat of St. Clair, 394; on official conduct of Secretary of Treasury, 430; on the pay of soldiers, 460; on the flag of the Union, 461; on the French emigrants from St. Domingo, 463; do. on the relief of do., 474; on the embargo, 480; on the legality of the sequestration of British debts, 484; on non-intercourse with Great Britain, 495; on admitting the delegate south of the Ohio, 529; further do., 531; on the coinage of cents, 546; on indemnification to sufferers by Pennsylvania insurgents, 547, 549; do. on the Pennsylvania insurgents, 552; on amending the naturalization laws, 555; on the requirements of titled foreigners for citizenship, 561; on reference of letter of Secretary of War, 567; on the reduction of salaries, 572; on the right to Indian lands within a State, 578, 580. BOURNE, SYLVANUS, appointed by the Senate to notify John Adams of his election as Vice-President, 10. BOURNE, BENJAMIN, Representative from Rhode Island, 260, 315, 388, 457, 528; on amending the naturalization laws, 559; on post roads, 637; on a salary for members of Congress, 637; on the rights of the House relative to treaties, 666; on the military and naval appropriation, 764. BOURNE, SHEARJASHUB, Representative from Massachusetts, 315, 388, 455, 528; on the Cod Fisheries, 363. BRADBURY, THEOPHILUS, Representative from Massachusetts, 604. BRADFORD, WILLIAM, Senator from Rhode Island, 445, 520, 591. BRADLEY, STEPHEN R., Senator from Vermont, 313, 380, 444, 523. BRENT.--On the rights of the House relative to treaties, 666. _Bribery_.--Case of Robert Randall considered, 609; charges, 609, 610; arrest of Randall and Charles Whitney, 611; time given to prepare for defence, 611; debate thereon, 611; further statement of the case, 612; charges against Randall and against Whitney, 613; petition of Randall for counsel considered, 614; report on further proceedings, 614; considered, 615; information against accused, 617; counsel of Randall, 618; examination of members, 619, 620; resolutions on the case, 621, 622; case of Whitney, 622; debate thereon, 623; Whitney discharged, 624. BROWN, JOHN, Representative from Virginia, 175, 255, 315; on Quaker memorial, 229. BROWN, JOHN, Senator from Kentucky, 380, 444, 520, 591. BRYAN, NATHAN, Representative from North Carolina, 604. BUCK, DANIEL, Representative from Vermont, 606. BURKE, EDANUS, Representative from South Carolina, 27, 175, 255; on low price of staples in South Carolina, 37; opposes duty on salt, 38; on tonnage duties, 50; favors effective tonnage duties, 54; opposes any title for President, 66; urges low salaries in consequence of embarrassed finances, 122; brings in a bill for compensation of members and officers, 129; on the right of instructions, 144; on the admission of foreigners, 188; one year too short a term for naturalization, 189, 190; opposes the commitment of the Quaker memorial, 202; Pennsylvania memorial unconstitutional, 208; further remarks, 229; on memorial of officers of navy, 240; on a seat of Government, 243; further remarks, 246; on vacancy in the Presidency, 270. BURGES, DEMPSEY, Representative from North Carolina, 604. BURR, AARON, Senator from New York, 309, 441, 520, 591; vote for, as Vice-President in 1793, 386; on resolutions relative to presentation of French flag, 601. BUTLER, PIERCE, Senator from South Carolina, 15, 168, 251, 309, 380, 442, 591; on answer to the President's speech, 594; on consideration of resolution relative to presentation of French flag, 598; on resolution relative to presentation of French flag, 599. C CABELL, SAMUEL J., Representative from Virginia, 604. CABOT, GEORGE, Senator from Massachusetts, 309, 380, 441, 520, 591. CADWALADER, LAMBERT, Representative from New Jersey, 22, 175, 255, 455, 528; on a committee to report a bill regulating oaths, 22. _Candles, Tallow_, duty on proposed, 34; adopted, 35. CARNES, THOMAS P., Representative from Georgia, 455, 527; on continental troops on frontiers, 518; on indemnification to sufferers by Pennsylvania insurgents, 550; on the right to Indian lands within a State, 579; on intruders on Indian lands, 587; offers amendment to resolution relative to intruders on Indian lands, 589. CARROLL, CHARLES, Senator from Maryland, 10, 254, 303; added to Judiciary Committee, 10; on committee to prepare an answer to Washington's inaugural, 12; reports on President's Message relative to the ratification of certain treaties, 20; urges decision relative to duty on molasses, 70, 71; on the amendment to the constitution relative to freedom of conscience, 137; on Fort Cumberland as a seat of Government, 159; further remarks, 160, 164; on vacancy in the Presidency, 269. CARROLL, DANIEL, Representative from Maryland, 22, 175. _Census of the Union_, debate on, 181; in order to know the various interests of the United States, the description of the several classes into which the community was divided should be accurately known, 181; census should comprise more than a mere enumeration of the inhabitants, 181; the progress of each interest thus shown, 181; motion that the marshal receive of every white male inhabitant over twenty-one years of age five cents, and for every male slave of like age three cents, as his compensation, 182; an equitable tax, 182; motion lost, 182; bill read a third time, 184. _Charitable objects_, appropriations by Congress for, _see_ French Refugees, 462. _Chaplains_, manner of electing, Senate committee on, 10; resolution of the House on, 168. CHRISTIE, GABRIEL, Representative from Maryland, 437, 527, 604; on the President's Speech, 537; on the Randall bribery case, 610. _Circular_, addressed to absent member at the first session of Senate, 9. _Citizenship_, during absence, see contested election of William Smith, 96. _City Hall_, New York, use of, tendered to Congress, 10; accepted, 10. _Civil List for 1796, note, 629._ CLAIBORNE, THOMAS, Representative from Virginia, 457, 527, 608; on the reduction of salaries, 571, 575. CLARK, ABRAHAM, Representative from New Jersey, 316, 388, 455; on the ratio of representation, 326; on election of President, 334; on attendance of Secretary of War, 391; on the reduction of the army, 405; further remarks, 407; on the French emigrants from St. Domingo, 462; on the relief of do., 474; on the commerce of the United States, 472; on the preparations for the Algerine War, 475; on the embargo, 500; urges postponement of indemnity resolutions, 504; asks what taxes are paid by back settlers, 506; opposes duties on manufactured tobacco and refined sugar, 507. CLAXTON, THOMAS, elected assistant doorkeeper of House, 22, 315. CLINTON, GEORGE, votes for as Vice President in 1789, 10; vote for as Vice President in 1793, 386. CLOPTON, JOHN, Representative from Virginia, 604. CLYMER, GEORGE, Representative from Pennsylvania, 22, 175, 255; engages in the discussion on laying duties on imports, 27; advocates protection of unwrought steel, 35; on state of paper mills in Pennsylvania, 41; sustains the power of the President to remove certain officers, 89; opposed to title for President, 68; opposed to incorporating amendments in the body of the constitution, 134; on the right of instruction, 139; on the location of the seat of Government on the Susquehanna, 151. _Coal_, duty fixed, 42, 113. COBB, DAVID, Representative from Massachusetts, 455, 527. COCKE, WILLIAM, Senator from Tennessee, 602. _Cod Fisheries._--A bill for the encouragement of the bank and cod fisheries, and for the regulation and government of the fishermen employed therein, considered, 350; motion to strike out first section, 350; principle of the bill doubted, a bounty on occupations, 350; no powers given to Congress for such a purpose, 350; the revenue to be employed in this bounty is to be drawn from all the sources of revenue, 350; an authority given to any government to exercise such a principle would lead to tyranny, 350; bad policy to encourage an occupation that would diminish rather than increase the aggregate wealth, 351; the bill does not contain that kind of encouragement essential to national defence, 351; the part of the national defence derived from the fisheries would be too costly, 351; to show the propriety of the measure, it should be demonstrated that the trade is in a state of decay, &c., 351; that there is a system of defence involved, &c., 351. The fisheries are confined to Massachusetts, which is a part of the Union, 351; they are a nursery of hardy seamen, a never failing source of protection to commerce, 351; more annoyance to the enemy from privateers, in the war, than from any other source, 351; all desired by the bill is to avoid the burden of duties, 352; the drawback on exported fish benefits the merchant, not the fishermen, 352; this bill pays the same money to the fishermen, 352; no bounty in the case, 352; it is only a drawback on the salt used on the fish, 352; the fishermen are now under no control, 352; bounty given only to those who conform to regulations, 352; constitution says no duty shall be laid on exports, 352; on exporting dried fish, the exporter is entitled to draw back the duty paid on the salt--this is the whole question, 352; defects of drawback law shown, 352; bill defended on three grounds, 353; it will increase the national wealth, 353; it affords naval protection in time of war, 353; character of the fishermen, 353; product of the fisheries, 354; anticipated increase in exports, 354; advantages now derived by the Government, 355; mode of paying the bounty explained, 355; not a dollar will be charged to the public, 355; other points considered, 356; justice only is asked, 356; it is not a bounty, 356; we ask that the drawback, in all instances, shall be equal to the money received, 356; the allowance proposed will not be greater than the drawback on exportation, 356; if it were a bounty, it would only be similar to the indulgence granted the land and agricultural interests, 357; how can Massachusetts contribute for protection to the Western frontier when no contribution is made to support her commerce, which, without it, will be ruined? 357; diminution of revenue shown, in consequence of the failure of the fisheries, 357. The money to be given will exceed the drawback, 358; this surplus is a bounty, and Congress has no power to grant bounties, 358; two or three provisions of the constitution to the point, 358; what will follow the doctrine of bounties, 358; guards in the constitution against the dangerous bias of interest which the doctrine of bounties subverts, 358; the objects of the bounty mark a dangerous innovation, 359; it is better to increase the drawback, a plan comprehending the useful parts of the bill without the objections, 359. Nothing of a bounty except the name in the bill, 360; the object of the bill is to encourage fishermen and thereby increase their numbers, and to govern them by certain laws by which they will be kept under due restraint, 360; these points considered, 360; the bill proposes to commute the drawback on the exportation of fish to a payment on the tonnage--thus no bounty, 361; the bill contemplates no more than what the merchant is entitled to by existing laws, 361; the powers of the Government must, in various cases, extend to granting bounties, 361. A material distinction here between an allowance as a mere commutation and modification of a drawback, and an allowance in the nature of a real and positive bounty, 362; the term bounty improper here, and does not express the sense of the bill, 362; some think Congress may do any thing they may think conducive to the "_general welfare_" 362; this term examined at some length, 362; consequences of the novel idea advanced, 363; the power of Congress, if established to this latitude, would subvert the Government, 363; is it worthy the attention of the Government that the cod fisheries should be preserved? 363; privilege carefully secured in the treaty with Great Britain, 363; products obtained in exchange for fish are dutiable, 364. Congress does not possess the power, 364; arguments for the bounty examined at length, 365; perhaps the State Legislature should give the bounty, 365; framers of the constitution guarded against partial preferences extremely, 366; is it politic and wise to exert this power even if it be authorized by the constitution? 366; an examination of terms used, 368; distinction between bounties and drawbacks, 368; arguments drawn from the term "general welfare" dangerous, 368; general welfare and particular welfare, 368; the inherent rights of the Government, 369; passage of the bill, 369. _Coffee_, duty on, 33. COFFIN, PELEG, Jr., Representative from Massachusetts, 456, 528. COIT, JOSHUA, Representative from Connecticut, 457, 527, 604; on the rights of the House relative to treaties, 687; on the execution of the British treaty, 731; on the admission of Tennessee, 757. COLES, ISAAC, Representative from Virginia, 23, 175, 456, 604. _Commerce of United States._--Report of Secretary of State on the privileges, and restrictions on the commerce of the United States in foreign countries, considered, 458; _note_ on, 458; proceedings previous to the adoption of the constitution, 458; duty to see if such measures could not be taken as would be promotive of those objects for which the Government was in a great measure instituted, 458; effects of such a movement, 458; numerous considerations advanced, 459; line to which the debate should be confined, 464; Great Britain and France, the two powers aimed at in the restrictions proposed, 464; an accurate and impartial comparison of the commercial systems of the two countries in reference to the United States; the test of the solidity of these propositions, 464; results of the comparison, 464. Should any thing be done at this time in the way of commercial regulations towards vindicating and advancing our national interests? 465; Navigation Act of Great Britain, 465; to allow trade to regulate itself, is not to be admitted as a maxim universally sound, 465; history of American policy, 466; trade between the United States and Great Britain, considered, 466. We should not regard the favoring of the French and British nation, but study to do that which would tend to the promotion of our own commerce and the interest of our own navigation, 467; which would suffer most, the United States or Great Britain? 467; three fourths of our revenue is derived from our commerce with Great Britain, 467; our intercourse with Great Britain, excepting some points, is as favorable as we can expect, 468; a judicious system of regulations would be of infinite advantage to the maritime interest of this country, 468; principles in regard to trade, 468; the subject is divided into navigation and manufactures, 469; navigation considered, 469; benefits derived from the consumption of European manufactures, 470; on the trade between America and Great Britain, 471; fixed principles and regulations by which to promote our commerce, 472; question considered in a political light, 472; the question postponed, 473. _Promoting Commerce_ by the increase of American seamen; moved that a committee be appointed to report bills for, 395; injury and insult arising from having British seamen, 395; cases of search and seizure stated, 396; conduct of Great Britain, 396; Government should take steps to secure abundance of American seamen, 396; motion adopted, 396. _Committee._--Senate, 1st Congress; on judiciary, 10; on rules in cases of conference, 10; on manner of electing chaplains, 10; on arrangements for receiving President, 10; to wait on Vice President, 11; on conducting the ceremonial of receiving the President, 11; to prepare an answer to Washington's Inaugural, 12; of House to report a bill regulating oaths, 22; of House to receive President, 37; to receive Vice President, 37; on supplies ordered, 46; appointed, 46; on disposition of papers in the office of late Secretary of United States, 46; on the answer to Washington's Inaugural, 46; on supplies; instructions to, 57; of Conference with Senate on disagreement relative to title of President, 69; to draft bills organizing Executive Departments, 94; to draft bills on pay of members, 126; on the establishment of a land office, 127; on enrolled bills, 129; to bring in bills relative to a seat of Government, 164; of Senate to draft an address to the President, 169; of Senate to bring in a bill additional to the Judiciary Act, 170; on unfinished business of last session, 170; of House on unfinished business of the last session, 171; to wait upon the President, 175; to prepare an address to the President, 178; of Senate to draft an answer to the President's address, third session, first Congress, 253; standing, appointed by the Speaker, 315; on rules, 315; to prepare an answer to the President's address, 316. _Compensation of the President, &c._--Report of a committee on the compensation of President, Vice President, Senators, and Representatives considered, 116; in what style is the President expected to live? 116; is five thousand dollars in proportion to the services of the Vice President? 116; members should know the rate at which they are paid in order to regulate their expenses, 116; the pay of the President should be granted as one sum, 117; under the constitution, he can receive no other emolument, 117; the provision in the report for paying the expenses of enumerated articles, house, furniture, clerks, horses, does not leave the President in the situation contemplated by the constitution, 117; furniture and plate should always be provided by Government, 117; report perfectly constitutional; if one thing can be allowed, another can be, 117; the constitution intends nothing but a fixed compensation for his services, 117; compensation should be according to services, and the President allowed to live as he pleased, 118; there should be proper dignity attached to the office, 118; motion to strike out enumerated articles, horses, &c., carried, 118; motion to strike out twenty and insert thirty thousand dollars, 118; do. divided, first carried, 118; various sums proposed, 119; if we knew the style in which the President should live, amount of pay would be easy to determine, 119; experiment only can tell, 119; $25,000 sufficient to test it, 119; various sums farther considered, 120; $25,000 adopted, 120. _Compensation of Vice President_ considered, 120; $5,000 per annum in quarterly payments reported, 120; nothing in the constitution gives him a right to a salary, 120; moved to strike out $5,000 in order to allow salary when he acts as President, and daily pay for services in the Senate, 120; $5,000 is out of proportion to $25,000, 120; it should be a perpetual salary as he is expected to remain at the seat of Government, and be ready in case of death of the President, 120; a compensation is to be made only for services rendered, 120; Lieutenant Governors of States, 120; services required of Vice President, 121; advantages of the position, 121; constitution silent on the subject, 121; therefore left to the Legislature to determine, 121; pay according to services does not hold good in Executive and Judiciary Departments, 121; the post not a sinecure, 121; no more entitled to an allowance than the other members of the Legislature are, 122; shall the Vice President receive a per diem or an annual salary? the constitution should serve as the ground by which to determine, 122; all motions lost and original proposition agreed to, 123. _Pay of Senators and Representatives_ considered, 123; six dollars per day and for every twenty miles proposed, 123; six per day for Senators and five for Representatives moved, 123; a distinction made in the constitution, 123; discrimination opposed, 123; discrimination urged on the ground of different qualifications and mode of election, 123; difference not perceived in the constitution, 124; discrimination evidently contemplated in the constitution, 124; unless adopted, proper Senators may not be obtained, 124; no difference in Legislative concerns, 124; arguments in favor of discrimination considered, 124; do. 125; distinction marked in many points, 125; a discrimination may eventually be a public injury, 126; a measure injurious to the Government, 126; motion lost, 126; bill for compensation, &c., 129; moved to strike out six dollars as pay of members, 129; objects of the mover, 130; six dollars too high, 130; present course is contrary to all Parliamentary proceeding, 130; motion to strike out lost, 131; bill reported to the House, and moved to strike out six dollars, and insert five, 131; six too high, 131; consider the principles upon which the President, Judges and members are to be paid, 131; necessary to secure an independent Legislature, 132; five high enough, 132; insinuations of improper and unworthy motives in the movers, 133; motion lost, 133. Annual salary proposed of $1,000 for members of the House, 635; present mode good--no alteration necessary, 635; members be induced to greater despatch in business, 635; public think the session unreasonably protracted, 635; annual salary causes neglect of business, 635; a salary, a bounty to neglect business, 635; a measure affords no advantage, 636; many suppose the bill to cover advance pay--yearly allowance not shorten sessions, 636; further consideration advanced, 636; motion to strike out the word annual passed, 637; motion to strike out greater allowance to the Speaker, 638; debated at length, 638; motion lost, 639. _Congress._--Day of meeting, 9; _note_, 46; proposition to adjourn first session, 16; adjournment of first session, 20; compensation of members, 116; debate on, 116; pay of members, 123; debate on discrimination in pay of members of two Houses, 123; compensation of members and officers, 129; debate on amount of pay, 129; first session, adjournment of, 167; second session, day of meeting, 168; members of, when term of office commenced, 171; second session, 175; first, third session, 251; first, closed, 308; second, first session, 309; second, first session closed, 379; second session commenced, 388; third, first session, 455; third, second session, 520; adjournment, second session of third Congress, 591; fourth, first session, 592. _Connecticut._--Vote for President, 10, 385. _Constitution._--Amendment of, proposed by Virginia, 47; how treated by the House, 48; debate on the mode of, 133; on the freedom of conscience, 137; right of instruction, 138; debate on, 138; vote on, 144; all amendments, in one report, 144; constitution, amendments of; _see Amendment_ of the constitution. CONTEE, BENJAMIN, Representative from Maryland, 89, 175. _Contested Elections._--Debate on the resolution that William Smith, member of the House, had been seven years a resident of the United States at the time of his election, 94; statement of Mr. Smith, 94; was Mr. Smith a citizen of South Carolina during his absence in Europe? 97; if the laws of the State decided him to be, that should settle the question, 97; is the gentleman eligible to a seat in the House, or has he been seven years in the United States? 97; qualities of a citizen and an alien, 97; to become a citizen, allegiance is first due to the whole nation, 98; what was the situation of the people of America when the dissolution of their allegiance took place? 98; views of Mr. Madison, 98; opposite views of Mr. Jackson, 99; vote admitting Mr. Smith, 99. _Ineligibility of Albert Gallatin_ to a seat in the Senate, considered, 448; on the petition of Conrad Earle, reported that it remains with Mr. G. to prove his citizenship, 448; facts stated, 448; who shall open the prosecution and conclude the arguments? 449; Mr. G. was an inhabitant of the United States before the peace of 1783, 449; all previous laws respecting aliens were done away, 449; he conceived himself a citizen from the time of his first qualifying, 449. Qualifications required in Virginia and Massachusetts, 449; mischievous consequences of permitting such innovations, 449; the doctrine of the old law still virtually in force, 449; other objections considered, 450; reply of Mr. Gallatin, 450, 451, 452; vote of the Senate, 452. COOPER, WILLIAM, Representative from New York, 604. _Cotton_, its introduction into South Carolina contemplated, 37. COUNT DE GRASSE, Memorial of heirs of, 582. CRABB, JEREMIAH, Representative from Maryland, 624. _Creek Nation._--Secret article of treaty with, 173. _Crown on the State House_ at New Haven, 563. D DALTON, TRISTRAM, Senator from Massachusetts, 10, 168, 251; on committee for conducting reception of President, 11. DAWSON, WILLIAM J., Representative from North Carolina, 455, 527. DAYTON, JONATHAN, Representative from New Jersey, 316, 388, 455, 527, 604; in favor of the attendance of the Secretary of War, 391; on discharging committee on defeat of St. Clair, 395; on reduction of the army, 400; acknowledges thanks of the House, 440; on the sequestration of British debts, 483; against continuing the embargo, 500; moves to refer indemnity resolution to committee on sequestration of British debts, 503; advocates his motion, 503; in favor of the bill to increase the army, 515; on admitting the delegate south of the Ohio, 529; on administering the oath to the delegate south of the Ohio, 531; on the President's speech, 535; on indemnification to sufferers by Pennsylvania insurgents, 547, 548; on Pennsylvania insurgents, 552; on amending naturalization laws, 555; on reference of letter of Secretary of War, 568; on the purchase of Indian lands, 583; elected Speaker, 604; do. speech, 604; on establishing Indian trading-houses, 624; on the pay of the Speaker, 638; on the execution of the British Treaty, 748; on the admission of Tennessee, 754, 755; on the military and naval appropriation, 764, 765. DEARBORN, HENRY, Representative from Massachusetts, 455, 527, 664; on thanks to General Wayne, 546; on the sense of the House relative to the British treaty, 750, 751; on the admission of Tennessee, 755. _Debate_, on duties and imports, 37, 41, 57, 58; on permanent seat of government, 145; on amendments of the Senate to House bill fixing seat of government, 165; on call of the House, 176; on manner in which Secretary of the Treasury shall make a report, 177; on answer to President's speech, 178; on admission of reporters, 180; on census of United States, 181; on report of Secretary of the Treasury, 182; on the naturalization laws, 184; on the assumption of State debts, 191; on the reception of the address of the Friends urging the discontinuance of the slave trade, 202; publication of, 377; on a military establishment, 390; on the defeat of St. Clair, 391, 393; on the reduction of the army, 398; on official conduct of the Secretary of the Treasury, 418; on the pay of soldiers, 459; on the commerce of the United States, 464; on the war with Algiers, 475; on sequestration of British debts, 483; on non-intercourse with Great Britain, 493; on the embargo, 499; on indemnity for spoliations, 503; on tobacco and sugar duties, 507, 599, 511; on the delegate south of the Ohio, 529; on answer to President's speech, 531; on Pennsylvania insurgents, 547; on naturalization bill, 555; on reduction of salaries, 571; on Thomas Pearson and others, 576; on Indian lands in Georgia, 586; on the address to the President, 605; Robert Randall bribery case, 609; on appropriations, 625; on Treaty with Great Britain, 639; on admission of Tennessee, 754. _Debt of the States_, _note_, 140; assumption of, 191. _Delaware_, vote for President, 10, 385. _Delegates from Territories._--Report on the credentials of James White, Representative of the territory south of the Ohio, 528; unconstitutional to permit the delegate to debate and not to vote, 528; the law says he shall be a member of Congress--one House is not Congress, hence the delegate may vote in both Houses, 528; constitution makes no provision for such a person, 528; his proper title is to a seat in the Senate, 529; the House can admit those whom it regards as lawfully entitled to a seat, 529; by whom was he to be paid? 529; expedient to admit the delegate, 529; the House has the right to consult or admit any one to debate, but not to vote, 529; an act of the whole legislature requisite for the introduction of a delegate, 529; an act of the legislature impracticable, 529; he has a right to a seat founded on an original compact, 530; amendment proposed, 530; the constitution admits no such character, 530; report of the committee, 530; moved that the delegate be required to take an oath, 531; the constitution requires only members and the clerk to take an oath, 531; improper to demand an oath of a delegate as he cannot vote, 531; motion lost, 531. DENT, GEORGE, Representative from Maryland, 455, 527, 604. _Departments_, executive, debate on, 85; of interior, organization of, proposed as a home department, 85; of State, organization of, proposed, 85; resolved, 86; of treasury, organization of proposed, 85; of war, organization of, proposed, 85; of the treasury, organization of, proposed, 90; debate, 90; three commissioners of treasury voted down, 94; executive, resolution on, 94; do. committee on, 94; of State, on removal of the Secretary by the President, 102; of war, 108; do. bill ordered to be engrossed, 109; of the treasury, debate on duties of the Secretary, 109; home, 127; proposition lost, 128; see _Executive_ departments. DEXTER, SAMUEL, Jr., Representative from Massachusetts, 457, 528; on the French emigrants from St. Domingo, 463; against continuing the embargo, 500; opposes reference of the indemnity resolutions to committee on sequestration of British debts, 505; on admitting the delegate south of the Ohio, 529, 530; on the President's speech, 532, 535, 538; on indemnification to sufferers by Pennsylvania insurgents, 550, 551, 553; on amending naturalization laws, 556; on the exclusion of titled foreigners from citizenship, 557. DICKINSON, PHILEMON, Senator from New Jersey, 251, 309, 380. _Discrimination_, in public creditors, _see Treasury_, report of Secretary. _Distilled spirits_, debate on drawback, 43; duty on, proposed, 28, 29; duty on, 113; _see Duties_ on imports. _Drawbacks_, _see Duties_ on imports. DUDLEY, GIFFORD, elected doorkeeper of House, 22, 315. _Duties ad valorem_, laid, 41, 43; collection of, bill reported, 57; on imports, bill laying the same considered, 15; subject brought before the House by Mr. Madison, 22; scale adopted in 1783, 23; debate on, in committee, 23, 33, 44; effect of high duties on smuggling, 44; debate thereon, 69, 73; debate on limiting the time of the bill, 77; amendment proposed, 81; withdrawn, 83; another moved, 84; bearing of the debate upon protection, _note_, 84. _Duties on Import_s.--Debate on, 22; importance of the subject, 22; deficiency of the Treasury, 22; the propositions by Congress in 1783, suitable for a basis, 23; heretofore approved by the States, 23; tonnage duties added, 23; necessity of the measure, 23; motion to fill the blanks of rate of duty as proposed by Congress in 1783, 23; filling the blanks should be postponed until the business is more mature, 23; immediate filling not necessary, 23; the proposition considered in a revenue light alone, 24; system of the plan proposed, 24; its simplicity, 24; something more than a temporary measure should be adopted, 24; list of articles on which duties should be levied proposed, 24; a single system embracing the most material and productive articles is best at present--a plan comprising all is a work of time and leisure, 25; to establish a permanent regulation now is most satisfactory to the public, 25; five per cent. on all imports excepting a few articles enumerated for specific duty proposed in 1783--the history of the ancient world shows protection to domestic manufactures, 25; the fostering hand of the General Government should extend to all manufactures of national utility, 25; any system of imports must be founded on mutual concession, 26; the means of encouraging agriculture should be considered, 26; of this we have the monopoly, 26; commerce, labor and industry, should be free, with some exceptions--every nation should have means of defence within itself, 26; imposts the easiest system of revenue, 26; but in what manner shall it be done? 26; specific duties on enumerated articles desirable, 26; a political necessity exists for encouraging manufactures, and raising a revenue, 27; what articles shall be taxed, what amount of money will each yield, and in what manner shall it be collected? 27; these questions should be the subjects of two bills, 27; in laying duties where the quantum is unascertainable, they should be low rather than high, 27. _Rum._--Fifteen cents per gallon proposed, 27; fifteen too high, ten moved, 27; committee not prepared to enter on the business in the accurate manner proposed, 27; encouragement to manufactures in their present feeble state would be a tax on the public for the benefit of a few, 27; what article shall be subject to specific, and what to _ad valorem_, duties, and on what principle shall the discrimination be made? 28; if the main object is revenue, consider when a duty is laid how far it is likely to be collected, 28; fifteen cents per gallon on rum may tempt smuggling, 28; it is one third the cost, 28; the highest sum can be collected, 28; revenue is the present object, and rum is the most productive article, 28; what shall be the duty on one article must be determined by the circumstances of the article, 29; yet fifteen cents on rum may lead to evasion of the law, 29; fifteen cents adopted, 29; _drawback_ on rum exported, of six cents, 49; lead to frauds on the revenue, 43; no drawback will be a great injury to the manufacture, 43; drawbacks will not operate to the disadvantage of the revenue, 43; if not allowed it will be a restraint on commerce, 43; particularly unjust if not allowed on rum, 43; this was an encouragement to commerce, and should not be combined in a bill encouraging manufactures, 43; drawbacks generally, 45; duty on rum, 65; motion to reduce lost, 65. _Bill repealing duties_ heretofore laid on distilled spirits imported from abroad, and laying others in their stead, and also upon spirits distilled within the United States, considered, 262; an excise law to be reprobated, 263; unequal in its operation, 262, 263; history of excises in England, 263; compliment to importers on promptness in paying duties, 263; bill hostile to the liberties of the people, 263; present revenue and demands compared, 263; tendency to promote smuggling, 263; mode of raising additional revenue disliked, 263; motion to strike out duties specified in order to insert duties on molasses, 264; of all excises that on ardent spirits least exceptionable, 264; direct taxation preferable, 264; no other mode can be adopted, 264; other sources of revenue might be explored, 264; smuggling be promoted, 264; deficiency exists--money must be raised--direct taxation impracticable, 264; operation of an excise in North Carolina, 265; an equal and just mode of taxation, 265; good sense of the people support it, 265; no more proper subject for revenue, 265; direct taxes opposed, 266; difference from the English bill, 266; excises constitutional, 266; people of Southern States cheerfully acquiesce in the wisdom of Legislature, 266; probable revenue of the year, 267; an amendment moved to prevent inspectors, &c., from interfering in elections, &c., 270; the amendment should be extended to every person, 270; proposition important, 271; bad policy to render the law odious by fixing a stigma on the officers to execute it, 271; propriety of the motion, 271; motion does not go far enough, 271; reasons for the amendment, 271; objections to the amendment, 271; amendment lost, 272; bill passed, 272. _Molasses._--Shall we tax spirits or the article from which it comes, 29; better collect on the importation of molasses, 29; eight cents is in proportion to the tax on rum, 29; this is a raw material important to manufactures in Eastern States, a necessary of life--the tax, a local burden--two cents high enough, 29; a principle of action should be adopted, 29; if molasses is taxed high because the duty on spirits is high, a necessary of life is burdened, 29; this rate of duty is unequal, 30; it will bring sudden ruin on the manufacturers of domestic spirits, 30; if a particular duty bears hard on one member of the Union, it is part only of a system bearing equally upon all, 30; is this duty ruinous to Massachusetts? 30; let a drawback of this duty be paid on all rum exported, 30; eight cents is more than a third of the cost of molasses, and higher than the duty on rum, 31; six cents is more equitable; this principle now fixed would carry them through the whole, 31; fixed at six cents, 31; if a reduction is made on other articles, there should be one on molasses, 69; the duty is not rated in proportion to other articles; the reduction must depend on the article itself, 69; should so rate as to make the States bear their due proportion of the aggregate, 69; every article should stand on its own bottom, 70; this duty is out of proportion, and too high to be collected, 70; it is a tax on a raw material and on an article of consumption, 70; the necessity of a drawback on country rum is incurred, 70; without the molasses trade the fishery cannot be carried on, 70; experience is against high duties on molasses, 70; fish are given in exchange for French molasses in the colonies; if the exportation of molasses is impeded so is that of fish, 71; the arguments of the advocates of a reduced duty, 71; six cents changed to five, 73. _Madeira Wine._--Thirty cents proposed, as it corresponds with the rate per cent. on the value--a principle now admitted, 31; fifty cents proposed, as the article is not a necessary of life, and it is desirable to raise all the revenue from imports, 31; fifty cents prohibitory, 31; the duty should be according to the relative value of the article at the time and place of importation, 32; cost of wine estimated, 32; thirty-three cents substituted, 32; discrimination on all other wine, 32; discrimination not proper at this time, 33. _Sugar_, put on same footing as molasses, 33. _Beer, ale, and porter._--This manufacture should be encouraged, 33; nine cents moved, 33; the duty should be so high as to give preference to American beer, 33; a low tax will raise money enough, 33; nine cents prohibitory, 33; prohibition will increase the manufacture and reduce the price--encourage raw material, 34; eight cents fixed, 34. _Candles._--Moved to strike out, 34; it is necessary to continue encouragements begun by the State Governments, 34; a small encouragement would place the article beyond competition, 35; if there was much importation of the article, it should be taxed for the sake of revenue, 35. _Steel, unwrought._--Any duty on, unwise and impolitic, 35; more deserving of a bounty, 35; a little encouragement would furnish abundance, 35; encouragement of the object of selecting the article, 85; the smallest tax on steel would be a burden upon agriculture, an interest most deserving of protection, 35; condition of South Carolina, 35; local considerations must be got rid of, 35; what operates to the benefit of one part in establishing useful institutions will operate finally to the advantage of all, 36; sixty-six cents a heavy duty on agriculture and mechanic arts, 36; fixed at fifty-six, 36. _Hemp and Cordage._--Policy of taxing cordage doubtful, 36; ship-building of national interest, 36; duty on hemp moved also, 36; if one is necessary, so is the other, 36; soil of the country ill adapted to hemp, 36; a duty on it would discourage navigation, trade and fisheries, 36; policy of taxing either doubtful, 36; Southern States calculated to raise hemp--protection to husbandry important as to manufactures, 36; distinction between taxing manufactures and raw material, 36; no amount of duty could give encouragement, if present price failed to do it, 36; frontier lands excellent for its growth, 36; the committee should do as much for the farmer as the artisan, 36; American lands will produce it equal to any in the world, 37; a small duty would turn public attention to it, 37; agriculture should be encouraged, but not at the expense of ship-building, 37; forty cents moved, 37; encouraging the settlement of western lands will encourage ship-building more than a bounty on hemp, 37; a low duty will encourage its growth in South Carolina and Georgia, 37; if hemp left out, cordage should be also, 38; a low duty at first, 38; fifty cents fixed, 38; immediate encouragement contended for, 54. _Nails, spikes, &c._--This is a tax on the improvement of estates, 38; like a tax on hemp, would increase the price of ship-building, 38; an unequal tax, 38; in a little time the home supply would equal the demand, 38; needs no legislative assistance, 38; refusing the duty will do no material injury, 38; one cent per pound fixed, 38. _Salt_, a necessary of life, 38; present price high, 38; much to be depended on as a source of revenue, 39; this tax heavier on the poor than on the rich, 39; no encouragement would be sufficient to establish its manufacture, 39; this tax unpopular and unjust, 39; it will cause much dissatisfaction with the new Government, 39; dissatisfaction will be only partial, 40; the tax not unequal, 40; taxes, to be just, should affect all, as this will, 40; the good sense and justice of the people to be trusted, 40; to be considered on the principle of justice and policy, 40; it falls on all alike, is part of a system, 40; any distinction is in favor of the Southern division, 40; if oppressive to the West, the equilibrium is restored by other articles in the system of revenue, 40; no law unjust and oppressive should be made, 41; such the duty on salt will be considered, 41; fixed at six cents, with a drawback on salted provisions, 41. _Teas_, a discriminating duty in favor of American bottoms proposed, 41; a large trade now sprung up with the East, 42; policy of the measure doubtful, 42; its object is not to add to the revenue, 42; long voyages unfriendly to commerce, 42; the only advantage is to raise the India commerce, 42; large amounts of American produce were exported in this trade, 42; it would afford protection against the large companies in Europe, 42; duty fixed as proposed, 42. _Coal._--Coal came from Europe as ballast so cheap as to prevent the working of the mines in Virginia, 42; three cents fixed, 42. _Scale of duties_, motion to reduce as too high, 44; the scale will be found not too high, 44; certainly too high to be well collected, especially in Georgia, 44; greater revenue can be obtained from a lower scale, 44; high duties produce smuggling, 44; high duties now will lead to smuggling, and oppress certain citizens and States for the benefit of others, 57; high duties raise a scruple respecting the allowance of a drawback, 58; high duties improper, because they are impolitic, 59; Southern States willing to consent to moderate duties, and give every encouragement possible, but not consent to great oppression, 59; are the duties too high or not? 59; what are the objects of Government--revenue one of the first? 60; if the revenue system falls with oppressive weight, it will shake the foundations of the Government, 60; what we may reasonably expect to collect is the point to be considered, 60; the chain of ideas upon which the whole subject is suspended, 60; all the money should be drawn from impost which can be, 60; rate of the duties, 60; if the scale is reduced, the amount of revenue will be insufficient, 61; direct taxation and excises are the only other means of resource, 61; experience of the old Congress and the increase of our importations show the scale to be too high, 61; the objects for which the money is needed are most important, 62; direct taxes are the alternative of lowering the scale, 62; every article stands as well as possible under the information possessed, 62; the arguments of the advocates of low duties considered, 62; this system compared in amount with that of Great Britain, 63; arguments of the advocates of high duties considered, 63; a host of revenue officers required to collect high duties would leave little for the treasury, 64; America has vessels well adapted for smuggling, 64; effects of high duties on the mercantile interest, 64; the impost will be well collected, 64; whatever is just and right the people will judge of and comply with, 65; if revenue is our primary object and other considerations secondary, we should do nothing to operate against the principle, 65; object of the committee is to raise revenue, 65. _African Slaves._--Duty on their importation moved, 73; not to be hastily considered, 73; impost bill on goods not proper to embrace this subject, 73; the motion should comprehend the white slave as well as black imported from the jails of Europe, 74; no right to consider whether the importation is proper or not, as the constitution gives the power, 74; the principle of the bill is to raise revenue, the principle of the motion is to correct a moral evil, 74; the whole burden falls on two or three States, which bear their full proportion of other taxes, 74; imposing a duty on the importation may have the appearance of countenancing it, 74; if negroes are goods, they come within the provisions of the bill--if not, the bill would be inconsistent, 74; the motion should be brought forward as a distinct proposition, 74; now is a proper time and place to consider the motion, 75; the object of enumerating persons on paper with goods is to prevent the practice of treating them as such by having them form part of cargoes of goods, 75; the tax not partial--in many instances such taxes are laid, 75; arguments of the opponents considered, 75; no difference whether left among enumerated or non-enumerated articles, 76; would a five per cent, _ad valorem_ on goods apply to slaves unless so stated, 76; the States were now prevented from continuing their duty on the importation, 76; motion withdrawn, 76. _Limitation clause_ as to the time of continuing the impost bill moved, 77; propriety doubted, 77; difficulty of fixing a suitable time, 77; this is an experiment, and should be limited to three or five years, 77; if the law is temporary, the people will not object to high duties, 77; the object of the bill is the re-establishment of public credit, a motion limiting it strikes at that credit, 77; to pass a bill to draw revenue from the people without limitation of time appeared dangerous, 77; it was not only to restore credit, but encourage certain people to engage in enterprises for which the public faith seemed to be pledged, 77; if made perpetual, the House could not alter it unless the President or a majority of the Senate approved, 78; the House is constitutionally the originator of money bills, 78; impossible to provide for the objects of the bill if it is limited to a few years, 78; a future Congress may repeal it, 78; great care was necessary to preserve the principle of raising money inviolate, 78; there are great demands on the treasury, and no documents to show what they are or what the revenue bill will produce, 79; danger of making the bill perpetual is the loss of power to originate money bills, and the extending the revenue above the demands of Government, 79; a temporary limitation would inspire confidence, 79; a perpetual one for interest alone would destroy all hope of payment of the principal, and shock credit, 79; nothing but a fixed, permanent, system can give security, 79; public credit will not admit a temporary act, 80; a measure of this kind necessary to reconcile members to different parts of the bill, 80; if the law is made perpetual, it will collect money in the public coffers after the debt is paid, 80; the Senate more likely than the House to misunderstand the public voice--the latter should preserve power of redress, 81; examination of reasons for making the law perpetual, 81; no law should be passed without a limitation, 83; no opportunity to amend errors if the law is made perpetual, 83; the system should be permanent if the law is not perpetual, 83; no revenue law with a limitation can probably be found on the English statute books, 83; motion withdrawn, and another substituted fixing a day for the termination of the act, unless otherwise provided, &c., 84; latter part struck out, 84; motion passed, 84; first day of June, 1796, fixed, 84. Duties as agreed in conference with the Senate, 113; bill for laying additional duties considered, 506; three cents additional on salt opposed as oppressive, 506; it is better than a land tax, 506; no tax could be so universally unpopular as this, 506; rejected, 506; other duties considered, 506; one and a half cents additional laid on coal, 506. _Manufactured Tobacco and Refined Sugar_, duty on, considered, 507; these articles incapable of bearing a burden, 507; of the nature of an excise, and the money can be raised either way, 507; if the bill is thrown out, then farewell to firm and determined measures, 507; objections to an excise, 507; the principle of excise is settled, 507; reasons in favor of the duty, 507; delay urged, 509; money needed, 509; a considerable deficiency, 509; imports reduced by capture of American shipping, 509; a general increased import would not effect the object, 509; if peace continues, the revenue may be adequate--if war comes, it will be deficient, 510; better to postpone the subject, 510; motion to reject the bill lost, 511; amended so as to confine the duty to manufactured snuff, 511; moved to strike out duty on refined sugars, 511; now in its infancy, 512; state of the trade--objections to the duty considered, 512; motion to strike out lost, 512. _Duties on Tonnage._--Debate in Committee of the Whole, 48; objects of tonnage duties, 48; motion to reduce from thirty to twenty cents, 48; the objects accomplished, 48; Southern products cannot bear high duties, 48; reasons for the reduction insufficient, 49; if we have various, we have not opposite interests, 49; no feeling of jealousy or rivalry exists, 49; encouragement of navigation indispensably necessary, 49; the price of freight will equalize itself, 49; regulation in favor of American shipping absolutely necessary to restore equality with foreigners, 50; Southern States indignant at the power which foreigners have over their commerce, 50; they look forward to the day when their navigation will be secured to the Eastern States, 50; under present circumstances a heavy tonnage duty will be attended with dangerous consequences at the South, 50; the principle of preference being fixed, it only remains to ascertain the proper degree, 50; a moderate duty should be allowed now, 50; but little difference in the capacity of the several States for ship-building, 50; this encouragement will diffuse and equalize its operation in every port, 50; proposition to lay a duty of fifty cents per ton on all vessels wholly or in parts, owned by subjects of foreign powers, 53; motion to reduce to forty until 1791; then increase it to seventy-five cents, 53; State duties are higher, and, if now reduced, will cause distress, 54; if sufficient encouragement is given now, our navigation will probably immediately flourish, 54; doubtful policy now to reduce and then increase duty at the end of two years, 54; ship-building now needs the greatest encouragement, owing to its present low state, 54; different course pursued by the members from Massachusetts and Pennsylvania, 54; people of the Southern States in debt, and have no shipping, and are unable to sustain any new burdens, 55; the difference in views does not arise from the geographical situation of the country, 55; the States expect Congress to protect their citizens in the property acquired under State legislation, 55; forty cents not too low, 54; many years must elapse before we have sufficient tonnage to export our commodities, 55; the business is now in the hands of foreigners, and a duty will cause a rise of freight by them, 55; is fifty cents too high? 55; a permanent regulation best, 55; British shipping now crowds the ports of Virginia, although the tonnage duty is twice as high, 56; the question of discrimination has been decided, 56; two years will not produce sufficient shipping--it will be improper to raise the duty then, 56; a certain tonnage duty best, 56; motion to reduce, and then raise in two years, lost, 57; regulations as adopted, 57; _see Address_ of House to President, and page 257. _Duties_, protective, on unwrought steel advocated, 35. DUVALL, GEORGE, Representative from Maryland, 604. E EARLE, SAMUEL, Representative from South Carolina, 604. EDWARDS, JOHN, Senator from Kentucky, 380, 441, 520. _Elections_, contested, 94; case of Wm. Smith, 94; do. _note___, 94. _Elections.--See Contested Elections._ _Electors of President._--Bill in relation to election of President considered, 333; longer time for the choice of Electors of President and Vice President, 333; disagreeable consequences likely to follow a failure of choice, 333; moved to strike out thirty days, 333; if possible, the Electors should meet on the very day they are chosen, 333; fourteen days would be a more proper time, 333; it was hardly possible to know electors would agree in a choice--in such cases a short time might answer, 333; motion negatived, 333. Objections urged to the clause requiring Executives to certify the names of Electors, 333; no person can be called on to discharge any duty for the U. S. who does not receive an appointment from the U. S., 333; if Congress cannot call upon Executives, upon whom can they call? 334; provision improper, 334; on the contrary, it is neither an undue assumption nor degrading to the Executives, 334; motion to strike out lost, 334. ELLSWORTH, OLIVER, Senator from Connecticut, 9, 168, 251, 313, 380, 441, 520, 591; ordered to inform the House of a quorum in the Senate, &c., 9; appointed on Committee on Rules, in case of conference, first Congress--on electing Chaplain, 10; appointed on Judiciary Committee, first Congress, 10; on committee on titles of President and Vice President, 13; delivered message from the Senate to the House, 22; report upon the commencement of the term of office of President, &c., 171; on answer to President's speech, 596; on consideration of resolutions relative to presentation of French flag, 598; on resolutions relative to presentation of French flag, 599, 600. ELMER, JONATHAN, Senator from New Jersey, 9, 151, 170. _Embargo._--_See Great Britain_, retaliatory measures upon. _Emigration_, Proclamation of Spanish Governor of Illinois Posts, 114; encouragement of, 114. _Estimates of Money_ necessary for 1794, 480. _Excise Laws_, Debate, 263. See "_Duties on Imports_" under head of _Distilled Spirits_; memorial on the, 328. _Excise.--See Duties_ on Imports, manufactured tobacco, 507. _Executive Departments._--Resolution respecting, 85; debate thereon, 85; how many departments shall be established? 85; three moved, 85; founded upon the constitutional division of these powers, 85; Home Department should be added, 85; previous motion withdrawn, 85; new motion to establish a Department of Foreign Affairs, one of the Treasury, one of War, 86; Department of Foreign Affairs agreed to, 86. _Mode of appointing the officer_, 86; motion to strike out "by the President with the advice of the Senate," as unnecessary, 86; no serious reason against their insertion, 86; the power of appointing is the gift of the Legislature, as the Secretary is an inferior officer, 86; the words only repeat those in the constitution, 86; words struck out by a vote, 86. _Power of Removal_ in the President doubted, 86; impeachment the only mode, 86; what the consequences of such an interpretation, 86; absolutely necessary the President should have the power of removal, 87; if an officer can be removed only by impeachment, he holds his office during good behavior, 87; it does not consist with the nature of things that impeachment should be the only mode of removal, 87; the power given to the Senate respecting appointments would be almost nugatory if the President had the power of removal, 87; if the House had the power of removal by the constitution, they could not give it out of their hands, 87; not a proper construction of the constitution to say impeachment is the only mode of removal, 87; a legislative construction of this part of the constitution necessary, 88; in all cases the party who appointed should judge of the removal, unless otherwise excepted, 88; a liberal construction should be given to the constitution, 88; the President should be made as responsible as possible for the conduct of his officers, 88; how the constitution provides for the appointment of public officers, 89; the power which appointed had the right of removal--shall it be given to the President alone? 89; the power of removal exists somewhere, and where? 89; it is an executive power, and belongs to the President, 89; the power declared to be in the President by a large majority, 90. _Department of Foreign Affairs_, in Committee of the Whole on the bill to establish a, 102; on the words, "To be removable from office by the President of the United States," 102; debate, 102; the power of appointing and dismissing united in their natures, 102; motion to strike out the words, 102; the declaration should not be made even if the President has the power, 102; no right to deprive the Senate of their constitutional prerogative, 102; we are declaring a power in the President which may be greatly abused, 103; the constitution the only guide; as it is silent, Congress should say nothing about it, 103; the nature of things; the express objects of the constitution require this power in the President as the most suitable person, and it must be conferred upon him by the constitution as the executive officer of the Government, 104; safer in the hands of the President than elsewhere, 104; if this power is not in the President, it is not vested anywhere, 105; this construction preserves to the department the full exercise of its powers, 105; the precedent of the individual States, 106; may arrive at something near certainty by attending to the leading principles of the constitution, 106; examination of the constitution, 107; motion to strike out decided in the negative, 108; passage of the bill, 108; same clause attached to the bill organizing Department of War, 108. _Treasury Department._--Debate, 90; shall this important department be in the hands of a single officer or in a Board of Commissioners? 90; duties to be assigned to the Secretary, 90; a Board of Treasury would conduct the business of finance with greater security and satisfaction than a single officer, 92; experience shows a Board of Treasury is the worst of all institutions, 92; experience with a single individual, 92; not so much system, energy, or responsibility in a Board as in a single officer, 93; with, a single officer there is safety, if the various business of the department is divided and modified, 93; with a Board more power is given to each individual than is proposed to give to a Secretary, 93; shall the department be under one or more officers is the question; what does experience show? 93; motion in favor of a Board lost, 94. The words in bill to "digest and report plans for the improvement and management of the revenue and the support of public credit," objected to, 109; Debate thereon, 109; to require the Secretary to make out and prepare estimates is sufficient-- any thing farther is a dangerous innovation upon the constitutional privilege of the House, 109; to report plans will abridge the privileges of the House, 109; the bill will be nugatory without this clause, 109; it cannot infringe the privileges of the House, 109; from the nature of his office, the Secretary will be better acquainted than any other person, 110; the constitution expressly delegates to us the business of revenue--if we blindly follow an unskilful minister, our constituents have no security, 110; the power of originating money bills here is a sacred deposit, 110; we may neither violate it nor divest ourselves of it, 110; the circumstances of the country are such that the House needs the aid of such an individual, 111; too great jealousy for liberty hurtful, 111; the clause is unsafe and inconsistent with the constitution, 111; the object of the clause is good, viz: to get information, but the Secretary should not possess a right to give it, 111; what is this officer to be responsible for, to entitle him to such powers? 112; difficult to see where the danger lies, 112; what is meant by responsibility? 112; something of the kind is required in the bill, 112; motion to strike out lost, 113. _Home Department_ moved, 127; duties of it proposed, 127; necessity of it not apparent, 127; duties may be distributed to other departments, 127; they have not been so distributed, 127; foreign to the other officers, 128; economy forbids it, 128; motion to establish lost, 128. _Reception of a Letter from the Head of Department._--Motion to refer a message of the President laying before Congress a copy of a letter from the Secretary of War, &c., 566; objected to, as showing too much deference to heads of departments, 566; the President had a right to send the communication and the subject of utmost importance, 567; it is an executive comment on a Legislative proceeding, 567; a defence of a measure adopted by the Senate condemned by implication another of the House, 567; no good reason to reject information because we had not asked for it, 567; reference to the constitution, 567; such jealousy needless, 567; objections unfounded, 567; letter of Secretary extremely improper and ill-judged, 567; former practice, 568; passage from the letter, 568; the idea of a dangerous precedent at hand, 568; report unworthy of the notice of the House, 569; the amendment wrong in principle and practice, 569; farther consideration of the subject, 570; amendment negatived, 571. F FEW, WILLIAM, Senator from Georgia, 9, 168, 251, 309, 380; on committee of arrangements for reception of President, 10; appointed on Judiciary Committee, 1st Congress, 10. FINDLAY, WILLIAM, Representative from Pennsylvania, 317, 389, 455, 532, 606; on the ratio of representation, 324; on the petition of Catharine Greene, 336; on discharging committee in case of St. Clair, 395; on the reduction of the army, 408; further remarks, 414; on the official conduct of the Secretary of the Treasury, 424; objects to additional duty on salt, 506; on intruders on Indian lands, 585; on a salary for members of Congress, 636; on the rights of the House relative to treaties, 668. FISHBOURN, BENJAMIN, nomination as naval officer at Savannah rejected by the Senate, 17. FITCH, JOHN, petition for protection of his rights in applying steam power to purposes of navigation, 73. FITZSIMONS, THOMAS, Representative from Pennsylvania, 22, 175, 255, 315, 388, 455, 527; remarks on duties on imports--offers an amendment fixing certain duties on certain articles, 24; on duty on molasses, 29, 30, 31; on duty on Madeira wine, 31; on duty on teas, 32; on sugar, 33; on duty on beer, &c., 33; do. on candles, 34; advocates do. on unwrought steel, 35; on duty on hemp, 36; do. on nails, 38; motion relative to duty on teas, 41; proposes drawback on distilled spirits, 43; proposes drawbacks on foreign goods exported, 43; opposes low tonnage duties, 54; explanation of his remarks relative to duty on molasses, 69; on the time for continuing in force the impost bill, 77; further remarks, 84; on the finances, 128; offers resolution for the appointment of commissioners to select site for a seat of government, &c., 159; presents the address of Friends in Pennsylvania, &c., against the African slave trade, _note_, 201; on Treasury returns, 263; against attendance of Secretary of War, 391; on the reduction of the army, 400; on official conduct of Secretary of Treasury, 426; on the pay of soldiers, 460; on the French emigrants from St. Domingo, 463; on the commerce of the United States, 468; on the preparations for the Algerine war, 478; against the embargo laws, 499; defends the tax on coal, 506; on duty on sugar, 513; on an increase of the army, 515; amendment relative to the President's speech, 533, 537; on intruders on Indian lands, 585. _French Flag._--Resolutions relating thereto, considered in the Senate, 597; moved to postpone consideration, 597; it might convey a distrust of the sense of the Senate on the Republic, 598; no difference of feeling in the Senate on the subject, but more time was desirable, 598; moved to strike out certain words, 598; the parts of the President's communication, 598; the subject was divided into two parts, 599; other points considered, 599; the Senate should express their own sentiments, 599; former practice, 600; other cases considered, 600; no difference, except in a matter of form, 600; further considerations, 601; motion carried, 601; presentation to the House, 615; do. description of, 615. _Flag of the United States._--A bill from the Senate to alter the flag of the United States, considered, 461; if it is altered from thirteen to fifteen stripes because Vermont and Kentucky have been added, it may be necessary to alter it for a hundred years, 461; very important not to offend the new States, 461; the whole idea ridiculous, 461; important to inform the rest of the world that two States were added, 461; the alteration would cost every vessel in the Union sixty dollars, 462; bill ordered to third reading, 462. FLOYD, WILLIAM, Representative from New York, 27, 175, 255. _Foreign Intercourse.--See Intercourse._ FORREST, URIAH, Representative from Maryland, 458; on the commerce of the United States, 467. FOSTER, ABIEL, Representative from New Hampshire, 137, 175, 255, 604. FOSTER, DWIGHT, Representative from Massachusetts, 527, 604; on the execution of the British treaty, 734. FOSTER, THEODORE, Senator from Rhode Island, 309, 380, 444, 520, 591. _France, Advance of Money to._--The report relative to an advance of money requested by the Minister of the French Republic, considered, 514; American citizens have claims for indemnification, why use the money to pay to France before it is due, 514; the cause of France and this country inseparably connected, 514; they are our old allies, 514; the loan in Europe was obtained for the defence of this country--it would be imprudence to apply it to any other purpose, 514; no ground for a plea of necessity for giving this money, 514; no good reason for disposing of this money in this way, 514; complaints have arisen of want of money in the Treasury since that has been proposed, 517; bill amended and passed, 517. _France._--Letter of French King, 313; resolutions on courtesies of, 370. _Franking Privileges.--See Post Office Bill._ FRANKLIN, BENJAMIN, death announced to the House, 239; eulogy on, in France, sent to Senate, 253. FRANKLIN, JESSE, Representative from North Carolina, 604. _Freedom of Conscience._--Amendment to the constitution, debate on, 137. FREEMAN, NATHANIEL, Jr., Representative from Mass., 604; on the answer to the President's speech, 606. FRELINGHUYSEN, FREDERICK, Senator from New Jersey, 524, 591. _French Committee_ of Public Safety, address of, 616. _French Minister's_ address to the President on the presentation of the Flag of the French Republic, 616. _French Refugees._--The petition of the committee appointed by the Legislature of Maryland to draw and distribute the money appropriated by that State to the French refugees, considered, 462; three thousand fugitives from St. Domingo had been at once landed, 462; what article of the constitution grants a right to Congress to expend on benevolent objects the money of their constituents? 462; a dangerous precedent would be established, 462; generosity of the English Parliament in 1755, 462; perhaps some other mode can be devised, 462; as much authority for relieving these fugitives as for indemnifying citizens for losses by British pirates, 462; the two cases widely different, 463; no difficulty in this matter, we are bound by the law of nature and of nations to relieve the citizens of a Republic who were our allies, and formerly our benefactors, 463; look at our treatment of the Indian embassies, 463; delay was desirable in this matter, 463; its legality is doubtful, 463; an appeal to our humanity is out of place, 463; petition for the speedy action of Congress on the memorial, 474; moved to pay $10,000 and negotiate the matter with the French Minister, 474; House has a right to, 474; passage of the motion warmly urged, 474; not to be tied up by the constitution in such a case, 474; it should be done as an act of charity, 475; motion passed, 475. _Frontiers, Protection of._--Bill for further and more effectual provision for the protection of the frontiers, considered, 341; moved to strike out the section for raising three regiments of infantry and a squadron of dragoons, 341; the Indian war is unjust and unwise, 341; the general treatment of the Indians unwise and impolitic, 341; _note_, 341; peace may be obtained at less expense than is necessary for war, 342; the roving disposition of frontier settlers should be checked, 342; no hope of success while Britain retains possession of the posts, 342; should be content to defend the frontier and not invade, 342; frontier militia better than regular troops, 342; even to secure the objects in view no such increase in the military establishment necessary, 343; the troops to be employed should be raised at once, 343; information on the report not implicitly reliable, 343; frontier militia the best troops, 343; the expense a serious matter at this time, 343; is not the object of this movement to raise a standing regular military force? 344; no one knows for what reason the war has been carried on three years, 344; it is said a sum might be appropriated to enable the executive to act as circumstances require, but it is the duty of the House to appropriate money for specific purposes, 344. We could have had the British posts if an embargo had been laid, 344; no man who regards self-preservation can doubt the justice of the war, 344; the murders and depredations of years call for redress, 344; the whites have seldom committed depredations, 345; peace is utterly unattainable by friendly efforts in the present state of affairs, 345; frequent attempts at treaties have been made, but in vain, 345; Indians have rejected our offers and added insults, 345; it is too late to inquire into the justice of the war, 345; a force must be raised, and the question is what the force shall be, 346; the number proposed is not extravagant if the number of the Indians is considered, 346; every reason to expect a most formidable opposition, 346; the objection of increased expense is vain compared with an unsuccessful campaign, 346; the experience of Virginia and Kentucky offers no inducement to the government to follow any other plan than the one proposed, 347; militia quickly disband or become insubordinate from slight causes, 347; Cornplanter's speech referred to, 347; galleries cleared and speech confidentially read, 347; _note_, Cornplanter's speech, 347; subject originally referred to the Secretary of the Treasury, 348; consequences of that reference, 348; clauses of the bill, 348; what reflection arises from a contemplation of this bill, 349; motion to strike out, lost, 349; bill passed, 350. _South-western Frontier_, to protect more effectually, bill considered, 517; when all other schemes have been voted down for raising a military force, it appears in this form, 517; regular troops useless in this service, 517; this no part of a system, 517; Indians are fifteen thousand strong, 517; a body of militia only is wanted, 517; this bill proposes a bounty for raising a particular corps, while the army needs all to fill its deficiencies, 518; Indians eight thousand strong, 518; posts do more mischief than service, 518; experience of years, 518; amendment lost, 518. _Fugitives from justice._--Bill of Senate, 384, 385; bill passed Senate, 416; read in the House, &c., 417; passed, 417; _note_, 417. G GALE, GEORGE, Representative from Maryland, 21, 175; on duty on beer, &c., 33. GALLATIN, ALBERT, Senator from Pennsylvania, 386, 441; proves citizenship, 448, 450, 452; Representative from Pennsylvania, 604; on the support of existing establishments, 626, 628; on the call for papers relative to British treaty, 640; on rights of the House relative to treaties, 644; on the execution of the British treaty, 735; on the admission of Tennessee, 757, 759; on the military and naval appropriation, 763, 764, 765, 766. _Georgia_, vote for President, 10, 385. _General Wayne_, resolutions of thanks to, considered, 542; bad consequences might ensue from the practice of giving opinions of men, 542; abundance of precedents, 543; it must be shown that it is improper in any case to pass such a vote, or that this is an improper case, 543; the resolution proper and unexceptionable, 544; this point considered, 544; it is simply a question of mere propriety, 545; this propriety considered, 545; resolutions adopted, 546. _General welfare_, clause examined and explained, 362. GERRY, ELBRIDGE, Representative from Massachusetts, 21, 175, 255, 315, 388; appointed on Committee of Supplies, 46; on application to amend the constitution, 48; doubts the power of Congress to require oaths of State officers, 51; reports a bill for the collection of duties, 57; on effects of high duties, 64; asks further investigations relative to duty on molasses, 72; urges limitation of the impost bill, 78; further remarks, 80; doubts the power of the President to remove heads of departments, 89; on organization of Treasury Department, 90; called to order, 91; _note_ on, 91; on Board of Treasury, 92; on President's power of removal, 106; on identity of reporting plans and originating money bills, 111; on the finances, 128; on the amount of pay of members of Congress, 131, 132; on the form of amending the constitution, 135; on the terms federalist and anti-federalist, 138; on the right and obligation of instruction, 139, 142, 143; urges delay in fixing seat of Government, 166; on manner in which Secretary of the Treasury shall make his report, 177; on the report of the Secretary of the Treasury, 183; on the humanity of the Quaker memorial, 204; upon constitutionality of interference of Congress with slave trade, 211; on a seat of Government, 245; further remarks, 247; on vacancy in the Presidency, 269; on interference of excise officers in elections, 271; on the commitment of the bill for a bank of the U.S., 273; speech on the bank, 300; on the ratio of representation, 320; further remarks, 327; does a resignation produce a vacancy, 329; offers a resolution on reports of Secretary of Treasury, 330; on vacancy of Presidency, 335; on the bill for the encouragement of the cod fisheries, 356; on the publication of the debates, 377; on attendance of Secretary of War, 392; on discharging committee on defeat of St. Clair, 394, 395. GILBERT, EZEKIEL, Representative from New York, 455, 527, 604; on a salary for members of Congress, 636. GILES, WILLIAM B. Representative from Virginia, 255, 315, 388, 455, 528, 604; on excise bill, 266; on vacancy in the Presidency, 270; speech on the Bank of the U.S., 296; on the ratio of representation, 324; is a resignation a constitutional vacancy, 328; on vacancy of Presidency, 334; on the bill for the encouragement of the cod fisheries, 350; on the stamp of American coin, 372; on the apportionment bill, 374; against attendance of Secretary of War, 391; on attendance of Secretary of War, 392; on discharging committee on defeat of St. Clair, 393, 394; on the official conduct of the Secretary of Treasury, 425; further remarks, 427; on the flag of the Union, 461; on the French emigrants from St. Domingo, 463; on conducting the Algerine War, 477, 480; examination of principles relative to the sequestration of British debts, 486; against the continuance of the embargo, 500; on modifying it, 502; urges postponement of indemnity resolutions, 505; against increase of the army, 515; on the advance of money to France, 516; on the bill to raise a force for the protection of the frontier, 517; on admitting the delegate south of the Ohio, 529; on the President's speech, 533, 538; reports a bill on soldier's pay, 541; on the resolutions of thanks to Gen. Wayne, 542, 544; on the investigation of losses by Pennsylvania insurgents, 553; on an amendment to the Naturalization laws, 555; on excluding titled foreigners from citizenship, 557, 558, 560, 563; on reference of letter of Secretary of War, 567, 569; on the reduction of salaries, 575; on the frontier settlers, 587; on the answer to the President's speech, 606; on the attempt at bribery, by Robert Randall, 610; on the resolution relative to bribery, 622; on the support of existing establishments, 628; on establishing Indian trading houses, 634; on a salary for members of Congress, 635; on the pay of the Speaker, 638, 639; on rights of the House relative to treaties, 653; on the execution of the British treaty, 718; on the army establishment, 760. GILLESPIE, JAMES, Representative from North Carolina, 459, 536; on the right to Indian lands within a State, 576. GILLON, ALEXANDER, Representative from South Carolina, 498; in favor of continuing the embargo, 501; opposes the tax on salt, 506; against duties on tobacco and sugar, 510; on the advance of money to France, 514, 516; on force to protect the S. W. frontier, 517; deceased, 582. GILMAN, NICHOLAS, Representative from New Hampshire, 21, 175, 255, 315, 388, 455, 527, 604; on a committee to report a bill regulating oaths, 22. _Glass, window and other_, duty fixed, 41. GLENN, HENRY, Representative from New York, 455, 527. GOODHUE, BENJAMIN, Representative from Massachusetts, 21, 175, 255, 315, 388, 455, 527, 604; on duty on molasses, 29, 31; on duty on salt beef, 34; on manufacture of nails, &c., 38; on duty on teas, 42; on giving preference to American shipping, 50; the object to raise revenue, 65; opposes deliberation on subject of President's title, 67; thinks duties too high for collection, excepting that on molasses, 69; on connection of molasses trade with the fisheries, 71; on concurrence of the Senate in appointments, 88; on location of the seat of Government, 145; further remarks, 148, 149, 160; on ratio of representation, 322; on the bill for the encouragement of the cod fisheries, 351; further remarks, 360; on the flag of the Union, 461; on the commerce of the United States, 472; on the preparations for the Algerine war, 479; moves to refer indemnity resolutions to Committee of the Whole, 503; opposed to referring indemnity resolutions to committee on sequestration of British debts, 503, 504; urges delay in laying duties on tobacco and sugar, 509; on a salary for members of Congress, 635; on the pay of the Speaker, 638; on the execution of the British treaty, 717. GOODRICH, CHAUNCEY, Representative from Connecticut, 604. GORDON, JAMES, Representative from New York, 315, 388, 455, 527. GRAYSON, WILLIAM, Representative from Virginia, 15. _Great Britain, Treaty with.--See Treaty, &c._ _Great Britain, Retaliatory Measures upon.--Sequestration of debts due_ to, considered, 482; considering the conduct of Great Britain sequestration, merely, is a great lenity, 483; no hope of the restitution of our property plundered on the seas--no possibility of indemnification, 483; no other method by which to enforce our claims, 483; it would be warrantable to sequester without negotiation, 483; with these resolutions, we may have peace--without them we shall have war, 483; not for the interest of the United States at this time, 484; the proposition is to arrest, not confiscate debts due to British subjects, 484; law of nations considered, 484; by this measure we make their motives for peace more weighty, and show our amicable disposition, 484; various points considered, 485; two points involved--the right of one nation to sequester the property of another in any possible case, and the policy of exercising this right at this time, 486; these points considered, 486, 487, 488, 489, 490, 491, 492. _Non-intercourse with Great Britain_, considered, 493; moved to prohibit all commercial intercourse between citizens of the United States and subjects of Great Britain, as respects articles of the growth or manufacture of Great Britain, 493; the line of conduct that should be pursued, 493; this measure, a war measure, 493; no representation of our injuries has been made, 494; how far does cool, temperate reflection direct our conduct? 494; constitutional considerations, 495; answers to them, 495; admitting the constitutionality and the right of the committee to originate the measure, and the aggression of Great Britain; are these principles sufficient to justify so harsh a measure?. 496; resolutions adopted, 498. _Embargo, continuation of_, considered, 498; reason for its adoption ceased, 499; numerous inconveniences have arisen from the measure, 499; British conduct now altered, 499; should not be revoked until a change of system by the British Government warrants it, 499; if it continues, the value of our imports will rise one hundred per cent., 500; France will suffer considerably if it is continued, 500; the other measures of the system have been laid aside and this should be, 500; although the reasons for it have not changed, it should be discontinued, as it will now operate against ourselves and our allies, 500; farmers suffer from the present restraints, 500; letter from the merchants of Charleston, 500; various considerations for its continuance, 501; the reason for the embargo, 501; reason for its continuance, 501; resolution for its continuance lost, 502. _Indemnity for Spoliations_ considered, 503; resolution that the United States indemnify her citizens for property captured and confiscated by Great Britain, &c., 503; moved that the resolution be referred to the Committee of the Whole, 503; moved to amend by referring it to the committee to whom was referred the resolution for the sequestration of British debts, 503; objected that the subject was distinct and separate, 503; urged that the two subjects ought not to be separated, 503; wrong to bring up this motion alone, 503; only course of indemnity was by sequestration, 503; security and protection should be extended to all interests, and redress for all injuries, 504; if present negotiations fail, we owe it to our citizens to obtain redress, 504; the reference moved is not fair for various reasons, 504; a tax should be laid to effect indemnity to our citizens, 504; the subject should be laid aside for the present, 505; there are strong reasons for indemnity, and also against connecting it with sequestration, 505; amendment agreed to, 505. GREEN, ASHBEL, chosen Chaplain, 388. GREENE, CATHARINE, Petition of widow, to obtain an indemnification from United States against certain engagements of General Greene, undertaken while commanding officer of U. S. army, 335; recommendation of Secretary of Treasury, 335; pressing necessity compelled General Greene to become surety, for which indemnity is now claimed, 336; the claim is just, 336; a resolution moved, 336; three alternatives were left to the committee, 336; claim should be granted by special law as matter of right, 336; circumstances connected with the evacuation of Charleston, 337; how to distinguish between the articles necessary and the other goods, 337; danger of establishing a bad precedent considered, 338; the measure not proper or just, 338; contract not beneficial to the United States, 338; character and circumstances of General Greene, 339; of the manner of conducting the affairs in South Carolina, 339; points of contest before the committee, 340; those points considered, 340; further debate, 340; resolution negatived, 340; further resolution relative to the report of Secretary of the Treasury, 340; resolutions on indemnity, 370; do. passage, 375; petition for indemnity against the demands of Harris & Blatchford considered, 761; report of committee, 761; resolution referred to Committee on Claims, 762; facts, 762. GREENUP, CHRISTOPHER, Representative from Kentucky, 455, 527, 609; on the flag of the Union, 461; on intruders on Indian lands, 585. GREGG, ANDREW, Representative from Pennsylvania, 317, 397, 455, 528, 609; on the sense of the House relative to the British treaty, 751. GRIFFIN, SAMUEL, Representative from Virginia, 21, 175, 255, 315, 388, 457, 527; on committee for reception of President, 27. GRISWOLD, ROGER, Representative from Connecticut, 604; on rights of the House relative to treaties, 647; on the execution of the British treaty, 735. GROUT, JONATHAN, Representative from Massachusetts, 46, 175, 255. GROVE, WILLIAM BARRY, Representative from North Carolina, 317, 393, 458, 528, 604. GUNN, JAMES, Senator from Georgia, 10, 254, 313, 448, 524, 591. H HAMPTON, WADE, Representative from South Carolina, 608. HANCOCK, GEORGE, Representative from Virginia, 457, 527, 604. HANCOCK, JOHN, votes for, as Vice President, in 1789, 10. HARPER, ROBERT G., Representative from South Carolina, 582, 604; on difficulties with the Indians, 588; on the answer to the President's speech, 607; on the Randall bribery case, 611; on a stenographer for the House, 631; on establishing Indian trading-houses, 634; on rights of the House relative to treaties, 643; on the sense of the House relative to the British treaty, 752. HARRISON, CARTER B., Representative from Virginia, 455, 528, 604. HARRISON, ROBERT H., votes for, as Vice President, 10. HARTLEY, THOMAS, Representative from Pennsylvania, 21, 175, 260, 309, 455, 527, 606; speech on laying duties on imports, 25; on duties of the Secretary of the Treasury, 111; on the form of amending the constitution, 136; on the right of instruction, 138; on location of the seat of Government, 146; further remarks, 148; on the propriety of naturalization laws, 185; urges residence as a condition of naturalization, 186; further remarks, 190; on the Quaker memorial, 202; calls up memorial of Pennsylvania Society, 208; further remarks, 229; on discrimination among the public creditors, 219; moves report on memorial of officers of the navy, 239; do. remarks on, 239; on a seat of Government, 246; on the petition of Catharine Greene, 339; on the reduction of the army, 399; further remarks, 403; on indemnification to sufferers by Pennsylvania insurgents, 550, 551; on rights of the House relative to treaties, 647. HATHORN, JOHN, Representative from New York, 43, 175, 260, 608. HAVENS, JONATHAN N., Representative from New York, 604. HAWKINS, BENJAMIN, Senator from North Carolina, 170, 251, 309, 380, 441, 520. HEATH, JOHN, Representative from Virginia, 455, 527, 604; on indemnification to sufferers by Pennsylvania insurgents, 549; on the execution of the British treaty, 719. HEISTER, DANIEL, Representative from Pennsylvania, 21, 175, 255, 315, 458, 528, 604; appointed by the House to make list of votes for President as they are counted in the Senate, 22; advocates encouragement to growth of hemp by duty, 37; appointed on committee to draft bill on tonnage duties, 57; moves to select Harrisburg for the seat of Government, 151. _Hemp_, debate on duty on, 36, 37; do. fixed, 38. HENDERSON, THOMAS, Representative from New Jersey, 606. HENRY, JOHN, Senator from Maryland, 10, 168, 254, 312, 382, 523, 591. HILLHOUSE, JAMES, Representative from Connecticut, 315, 389, 456, 527, 604; on the ratio of representation, 327; on vacancy of Presidency, 335; on the reduction of the army, 414; on official conduct of Secretary of Treasury, 429; on the advance of money to France, 514; on the President's speech, 532, 540; on thanks to General Wayne, 542; on damages by Pennsylvania insurgents, 547, 554; on the admission of foreigners to citizenship, 560; on the resolutions relative to intruders on Indian lands, 585; on the resolution relative to bribery, 622; on a salary for members of Congress. 635; on the pay of the Speaker, 638; on the rights of the House relative to treaties, 690; on the execution of the British treaty, 721; on the sense of the House relative to the British treaty, 751. HINDMAN, WILLIAM, Representative from Maryland, 457, 527, 604. HOLLAND, JOHN, Representative from North Carolina, 604; on rights of the House relative to treaties, 661; on the execution of the British treaty, 730. HOLTEN, SAMUEL, Representative from Massachusetts, 455, 527. _House_, elects Frederick A. Muhlenberg Speaker, 9; of Representatives, meets in Senate Chamber to count electoral votes, 10; meets Senate to count electoral votes, 22; proceedings relative to Washington's inaugural, 46; answer to same, 47, 53; thanks presented to the Speaker, 90; conference with the Senate on the impost bill, 113; results of, 113; adjournment of, 167; journal of, title of, 176; answer to President's speech, 178; answer to President's address at 3d session, 1st Congress, 259; answer to President's message, 316; answer to the President's message, 389; answer to the President's address, 456; answer of, to President's speech, 609; answer to the President's speech, 2d session, 3d Congress, 541. HUGER, DANIEL, Representative from South Carolina, 27, 175, 255, 315, 390. HUNTER, JOHN, Representative from South Carolina, 457, 528; on the relief of the French emigrants, 474. HUNTINGDON, SAMUEL, votes for, as Vice President, 10. HUNTINGTON, BENJAMIN, Representative from Connecticut, 21, 175, 255; on application to amend the constitution, 48; urges limitation of the impost bill, 79; on the power of removal, 103; on the amendment to the constitution relative to freedom of conscience, 137; opposes easy terms of naturalization, 189; on memorial of officers of navy, 240; on a seat of Government, 242. I _Imports.--See Duties_ on imports. _Indemnity_, for spoliations.--_See Great Britain._ _Indian lands within a State, Rights over._--The claim of Thomas Person to certain lands on the frontier of North Carolina, and ceded by the United States Commissioners to the Indians, considered, 576; _note_, 576; the conduct of other States, 576; the Government of the United States has converted property of the citizens of North Carolina, and they ask compensation, 576; examination of authorities on the rights of the sovereign to take property, 576; detail of the circumstances of the present dispute, 577; the claim of North Carolina to sell the land was wrong, 578; the cause of all the disputes with the Federal Government, 578; have the United States taken away any claim which the purchasers of these lands had, 578; suitable method to settle the matter, 578; Indians never occupied the lands, 578; on the limits of the States and the right to what was jointly acquired, 579; North Carolina could grant only the pre-emption right, 579; further details respecting the grants in North Carolina, 579; these lands within the limits guaranteed by the articles of Confederation, 580; further particulars, 580; resolutions reported to the House, 582; do. further reported, 583. _Indian lands disposed of by the Legislature of Georgia_, considered, 583; resolutions on the subject, 584; they subject persons to martial law, 584; amendment proposed, 584; also that persons in pursuit of Indians should not be liable to the law, 584; useless to expend money to protect the frontier if this permission is granted, 585; better declare there shall be no frontier, 585; no man could be arrested under this amendment, 585; amendment carried in committee, 585; reported to House, 586; reasons for authorizing pursuit of Indians, 587; importance of the amendment, 587; further considerations, 588; lost, 589. _Indians, Southern_, treaty to be negotiated with, 18. _Indian Trading Houses_, bill for establishing trading houses for supplying Indians considered, 585; tends to conciliate an unhappy and distressed people, 585; bill of utmost consequence, 586; system of arrangements for the frontiers proposed, 586; bill to establish trading post considered, 624; amendments made, 624; the object of the bill unattainable, 624; it effects a change in our system, 625; influence of the Canada traders, 625; _note_, 625; objects of the measure, 625; bill put on its passage, 625; principles of the bill considered, 634; no opinion of governmental bargains, 634; _note_, 634; bill passed, 635. _Indian Tribes._--Message from the President on disputes between the same and some of the States, 16. _Instruction_, right of debate on, 138. _Insurgents of Pennsylvania.--See Pennsylvania Insurgents._ _Intercourse Foreign_.--On the bill providing means of intercourse with foreign nations, 242; moved to strike out thirty and insert forty thousand dollars, 242; reasons urged in opposition, 242; reasons urged in favor of the motion, 242; motion adopted, 242. _Invalid Pensions_, bill reported, 406. IRVINE, WILLIAM, Representative from Pennsylvania, 455, 551. IZARD, RALPH, Senator from South Carolina, 10,168,251,309, 380, 441, 520; on committee on future disposition of papers of late Secretary of Congress, 10; added to Judiciary committee, 10; on committee for conducting reception of President, 11; on committee to wait on Vice President, 11. J JACKSON, GEO., Representative from Virginia, 604. JACKSON, JAMES, Representative from Georgia, 42, 175, 255; remarks in favor of reducing duties, 44; remarks on tonnage duties, 48; on power of Congress to require oaths of State officers, 51; objects to high duties on account of expense of their collection, 64; temptation to smuggle, 64; considers subject of title for President as trifling, 68; urges postponement of consideration of duty on African slaves imported, 73; further remarks, 74; urges limitation to impost bill, 81; on the power of the President to remove officers, 87; remarks on citizenship and foreign allegiance, 98; opposes discrimination in the pay of Senators and Representatives, 123; further remarks, 126; on the form of amending the constitution, 136; on the rights of instruction, 139; on location of a seat of Government, 149; on amendments of the Senate to House bill on seat of Government, 165; on subjects embraced in the report of the Secretary of the Treasury, 182; further remarks, 183, 184; on testimonials of behavior and conduct as requisites of naturalization, 187; favors a progressive and probational naturalization, 189; further remarks, 189; a funded debt is an injury, 191; further remarks, 195, 197, 199; opposes a commitment of the Quaker memorial, 202; on property of master in the slave, 209; on discrimination among the public creditors, 216; further remarks, 217; on memorial of Officers of the Navy, 240; on answer to the President's message, 256; further remarks, 257; on price of public lands, 261; moves to strike out essential part of first clause of bill relating to duties on distilled spirits, 261; remarks on, 261; further remarks, 264,270,271,272; on the commitment of the bill for Bank of the United States, 272; speech on the Bank, 285; petition on election and return of Anthony Wayne, 324; Senator from Georgia, 445, 520. JACOBS, ISAAC, Representative from Pennsylvania, 389. _Jails of the States_, resolutions on, 308. JAY, JOHN, votes for, as Vice President in 1789, 10. JEFFERSON, THOMAS, desires to return from France as Minister, 15; votes for, as Vice President in 1793, 386. JOHNS, KINSEY, claims a seat as Senator from Delaware--claim considered, 453; rejected, 453. JOHNSON, WM. S., Senator from Connecticut, 9, 168, 254; resigned, 309; on committee on future disposition of papers of late Secretary of Congress, 10; on committee of arrangements for reception of President, 10; on committee to prepare answer to Washington's inaugural, 12; on committee on titles of President and Vice President, 13. JOHNSTON, SAMUEL, Senator from North Carolina, 171, 251, 309, 383. JOHN TORREY.--Petition of, in Committee of the Whole on report of Secretary of Treasury, 317; Congress promised half-pay to the officers who should continue in service to _the end of the War._--Major Torrey continued in service till near end of 1783 and died, did he continue in service to the end of the war? 318; peace concluded April, 1783, 318; what was the intention of the parties in this contract? 318; when did the war end? 318; what does the law of nations say? 318; distinction between preliminaries and a definite treaty by the law of nations, 318; objections considered, 319; the question does not turn on a judicial principle, 319; certain established rules have been observed in settling with every officer, 320; terms of contract decided by the sovereign power, 320; motion for accepting report carried, 320. _Judiciary_, Senate committee on, first Congress, 10. K _Kentucky_, memorial of a convention in, 253; vote for President in 1793, 385. KEY, PHILIP, Representative from Maryland, 388. KING, RUFUS, Senator from New York, 16, 168, 251, 312, 380, 444, 520, 591; on answer to Presidents speech, 594. KITCHELL, AARON, Representative from New Jersey, 316, 388, 455, 527, 604; on the ratio of representation, 328; on the execution of the British treaty, 734. KITTERA, JOHN W., Representative from Pennsylvania, 323, 388, 455, 527, 604; on reference of letter of Secretary of War, 569; on the right to Indian lands within a State, 578; on the execution of the British treaty, 729. L LA FAYETTE, bill relative to the accounts of, 448; son of, letter from, 740. _Lands, Western_, disposal of, 99; report of committee, 113; plan of land office, 115. _See Public Lands._ LANGDON, JOHN, Senator from New Hampshire, 9, 168, 251, 309, 380, 441, 520, 590; elected President of Senate, 9; on committee of arrangements for reception of President, 10; address to Vice President on his taking the chair, 11; administers the oath to the Vice President according to law, 15; elected President of Senate _pro tem._, in the absence of Vice President, and President _pro tem._, 380; elected President _pro tem._ of Senate, 441. LATIMER, HENRY, Representative from Delaware, 527. LATIMER, HUGH, Senator from Maryland, 524, 591. LAWRENCE, JOHN, Representative from New York, 22, 175, 255, 315, 388; remarks on laying duties on imports as proposed, 24; remarks on duty on distilled spirits, 38; favors high duty on beer, 33; do. duty on candles, 35; advocates duty on salt, 39, 40; on requiring oaths of State officers, 52; favors permanent rate of tonnage duties, 55, 56; on the object of duties, 65; doubts the propriety of limiting the impost bill, 78; on duties of Secretary of Treasury, 112; on the compensation of the President, 116; opposes furnishing houses, &c., 116; on the form of amending the constitution, 135; on the location of the seat of Government, 149; on the manner of persuading members, 154; on the constitutional requirements for a seat of Government, 160; on the mode and reason for admitting foreigners to citizenship, 185; further remarks, 187; on the validity of the full amount of the debt, 195; on effects of stopping importation of slaves, 202; on Pennsylvania memorial, 209; presents the address of Society of Friends in New York against the African slave trade, 211; on discrimination of public creditors, 213; on a seat of Government, 244; further remarks, 247; moves to strike out "Potomac," and insert Baltimore, 249; on price of public lands, 261; further remarks, 262; on excise bill, 264; on vacancy in the Presidency, 268; on officers, 271; on the commitment of the bill for a bank of the United States, 273; speech on the bank, 284; on claim of John Torrey, 317; on ratio of representation, 320; further remarks, 322; on the bill for the encouragement of the cod fishery, 361; on attendance of Secretary of War, 391, 392; on discharging committee on defeat of St. Clair, 394; on official conduct of Secretary of Treasury, 426; further remarks, 427. LEARNED, AMASA, Representative from Connecticut, 315, 388, 455, 527. LEE, RICHARD BLAND, Representative from Virginia, 21, 175, 235, 317, 465, 527; on duty on steel, 35; on duty on nails, &c., 38; makes report of Committee on Messages between the two Houses, 45; favors a limited time for the impost bill to be in force, 77; on citizenship during absence, 97; favors discrimination in the pay of members of the two Houses of Congress, 123; offers a resolution on the principles which should control the choice of a seat of Government, 146; further remarks, 147; vote, 147; further remarks, 148; do. on the Potomac, 153, 161; in favor of New York for seat of Government, 163; do. on amendments of the Senate to House bill on seat of Government, 165; on a seat of Government, 243; on official conduct of Secretary of Treasury, 429; on harmony between the Eastern and Southern States, 560. LEE, RICHARD HENRY, Senator from Virginia, 9, 254; on committee on rules in cases of conference, 1st Congress, 10; do. on manner of electing chaplains, 10; do. on rules of business, 10; appointed on Judiciary Committee, 1st Congress, 10; on committee for conducting reception of President, 11; on committee on titles of President and Vice President, 13. LEONARD, GEORGE, Representative from Massachusetts, 21, 175, 250, 388, 604. LEWIS, ----, counsel for petitioners relative to seat of Albert Gallatin, 449; speech of, 449, 452. _Liberty street_, New York, name of, 563. _Lighthouses, &c._, bill for the establishment of, passed, 129. LINCOLN, BENJAMIN, votes for, as Vice President, 10. LINN, WILLIAM, elected chaplain of the House, 46. _List of Persons_ employed in Treasury Department reported to the House, 406; do. employed in War Department, reported to the House, 406. LIVERMORE, SAMUEL, Representative from New Hampshire, 46, 175, 255, 315, 388; considers motion to lay duty on African slaves improper at that time, 74; on the time of extending the impost bill, 77; on the Executive Departments, 86; on removals, 89; on the power to remove officers, 107; on the power of originating bills, 110; on a salary for the President, 117; on form of amending the constitution, 135; motion relative to the amendment of the constitution touching freedom of conscience, 138; on the doctrine of instruction, 142; further remarks, 143; on funding the debts of the States 192; do. on the reduction of the debt from its nominal value, 196; on discrimination among the public creditors, 227; on a seat of Government, 247; on excise bill, 265; on excise officers, 271; on vacancy in the Presidency, 267, 268; on the bill for the encouragement of the cod fisheries, 360; on American coins, 371; further remarks, 371; against attendance of Secretary of War, 391; on official conduct of Secretary of Treasury, 428; Senator from New Hampshire, 441, 520, 590. LIVINGSTON, EDWARD, Representative from New York, 604; on salary for members of Congress, 636; on the treaty with Great Britain, 640; on the rights of the House relative to treaties, 675. LOCKE, MATTHEW, Representative from North Carolina, 455, 527, 604. LYMAN, SAMUEL, Representative from Massachusetts, 604; on rights of the House relative to treaties, 658; on the execution of the British treaty, 706. LYMAN, WILLIAM, Representative from Massachusetts, 455, 527, 604; on the flag of the Union, 461; opposes the duties on manufactured tobacco and refined sugar, 507; on the President's speech, 534; on reference of letter of Secretary of War, 569; on intruders on Indian lands, 587; on the reports of the debates, 632; on rights of the House relative to treaties, 670; on the admission of Tennessee, 755. M MCDOWELL, JOSEPH, Representative from North Carolina, 455, 528; against duty on sugar, 518; against raising a force for the protection of a S.W. frontier, 517; on admitting the delegate south of the Ohio, 529; on the President's speech, 535, 539; on amending the naturalization laws by requiring foreigners to renounce their slaves, 559; on the right to Indian lands within a State, 580; on difficulties with the Indians, 587. MCINTOSH, LACHLAN, nominated as naval officer at Savannah, 17. MACLAY, WILLIAM, Senator from Pennsylvania, 9, 168, 251; appointed on Judiciary Committee, first Congress, 10; on committee on future disposition of papers of late Secretary of Congress, 10; on committee on rules in cases of conference, first Congress, 10; on manner of electing chaplains, 10; on rules of business, 10. MACLAY, SAMUEL, Representative from Pennsylvania, 604. MACON, NATHANIEL, Representative from North Carolina, 388, 455, 527, 604; on the right to Indian lands within a State, 579; on the resolution relative to the heirs of Count de Grasse, 583; on establishing Indian trading houses, 625, _note_, 625; on the admission of Tennessee, 756. _Madeira Wine_, proposed duty on, 81; duty on, 32. MADISON, JAMES, Jr., Representative from Virginia, 21, 175, 255, 315, 388, 455, 527, 604; informs the Senate that the House agrees that the notifications of the election of President and Vice President be made by the former, 10; on a committee to report a bill regulating oaths, 22; speech introducing the measure for imposing impost and tonnage duties, 23; his manner of proceeding, _note_, 23; further speech on laying duties on imports, 25; on duty on distilled spirits, 28; on duty on molasses, 29; on duty on salt beef, 34; on duty on beer, 34; proposes duty on hemp, 36, 38; on duty on nails, &c., 38; on duty on salt, 40; opposes duty on teas, 42; on drawback on distilled spirits, 43; on high duties, 44; reports an answer to Washington's Inaugural, 47; on tonnage duties and their equality, 50; on tonnage duties, 53, 55; do. discrimination of, 56; on the scale of duties proposed, 60, 62; where the burden of duties would operate, 64; opposes title for President as hostile to spirit of the Government, 67, 68; thinks arguments against duty on molasses inconsistent, &c., 71; further remarks, 71; remarks on the motion to lay a duty on African slaves imported, 75, 76; moves a limitation clause to the impost bill--respecting the time of its continuance, 77; remarks on the same, 77, 80; withdraws his motion to limit impost bill and introduces another, 83; on organization of the Treasury Department, 84; moves the organization of three departments, 86; on power of President to remove officers, 86; further remarks, 87; remarks on citizenship, 97; on the admission of Rhode Island, 101; on the power of removal of officers, 104; on the power to report plans of revenue by the Secretary of the Treasury, 112; on the compensation of the President, 117; on the compensation of the Vice President, 121; thinks discrimination in the pay of Senators and Representatives necessary, 124; moves a discrimination in the pay of members of the two Houses, 131; on the form of amendment of the constitution, 134; on the amendment to the constitution relative to the freedom of conscience, 137; further remarks, 138; on the right of instruction, 139; on the principles which should govern the selection of a seat of Government, 147; further remarks, 147, 148, 151; on deliberation in choosing the seat of Government, 154; on the place for a seat of Government, 155; further remarks, 160; constitutional objection, 164; further remarks on amendments of the Senate, 166; further remarks, 167; on census of United States, 181; on residence as essential to naturalization, 186; on the constitutional privilege to import African slaves, 201; further remarks favoring the commitment of the Quaker memorial as harmless, 204; on propriety of committing Pennsylvania memorial, 211; moves to discriminate between original creditors and present holders of public debt, 205; do. speech thereon, 205, 223; announces the death of Dr. Franklin, 239; on a seat of Government, 245; further remarks, 248; on answer to President's message, 258; on excise bill, 264; on vacancy in the Presidency, 268; on the commitment of the bill for a bank of the United States, 273; do. speech on the bank, 274, 306; on the bill for the encouragement of the cod fisheries, 361; on attendance of the Secretary of War to report, 391, 392; on the case of General St. Clair, 393; further, 394; on official conduct of Secretary of Treasury, 431; on the French emigrants from St. Domingo, 462; on the relief of the French emigrants, 474; on the preparations for the Algerine War, 475, 477, 479; speech on the commerce of the United States, 458, 465, 469; on duties on tobacco and sugar, 510; against the bill to increase the army, 516; on the delegate south of the Ohio, 531; on indemnification to sufferers by Pennsylvania insurgents, 549; on amending naturalization laws, 555; on the exclusion of titled foreigners from citizenship, 557; on the renunciation of nobility for citizenship, 562, 565; on reference of letter of Secretary of War, 567; on the Randall bribery case, 610; moves a resolution on post roads, 637; on the pay of the Speaker, 638; on the call for papers on the British treaty, 640; on rights of the House relative to treaties, 648; on the resolutions relative to the refusal of the President to furnish papers on the treaty with Great Britain, 696; on the execution of the treaty with Great Britain, 702. MALBONE, FRANCIS, Representative from Rhode Island, 457, 527, 604. _Malt_, duty on fixed, 38. MARSHALL, HUMPHREY, Senator from Kentucky, 591. MARTIN, ALEXANDER, Senator from North Carolina, 442, 520, 591. _Maryland_, offers ten miles square to Congress for a seat of Government, 81; vote for President, 10, 385. MASON, STEVENS T., Senator from Virginia, 591; on answer to the President's speech, 594. _Massachusetts._--Vote for President, 10, 385. MATTHEWS, GEORGE, Representative from Georgia, 175, 255. MATTHEWS, JAMES, elected doorkeeper, 10. MAXWELL, CORNELIUS, appointed messenger by the Senate, 10. MEBANE ALEXANDER, Representative from North Carolina, 455, 527. _Members_ of the House.--_See Representation._ MERCER, JOHN FRANCIS, Representative from Maryland, 320, 360; on the protection of the frontiers, 348; on the stamp of American coins, 372; on the publication of the debates, 379; on official conduct of Secretary of Treasury, 427; on the legality of the sequestration of British debts, 484. _Message, &c._, between the two Houses--report of House Committee, 45; from the President, 167; of the President, 251; from the President, on commerce with England, 308; of the President, first session, second Congress, 310, _note_, 311; of the President to Senate, on fugitives from justice, 312; from the President on defeat of St. Clair, 330; of the President, with a veto of the apportionment bill, 374; of the President to second session of second Congress, 381; from the President, on Spanish interference, 389; of the President to first session of third Congress, 442; of the President, on foreign relations, 443; of President, relative to South-western frontier, 447; from the President, relative to foreign relations, 454; of the President, to second session of third Congress, 520; of President to the House, declining to furnish papers relative to the treaty with Great Britain, 692, _note_, 692; message, see _Address_. MILLEDGE, JOHN, Representative from Georgia, 396, 605; on the reduction of the army, 407; on the rights of the House relative to treaties, 685. MILTON, JOHN, votes for, as Vice President, in 1789, 10. _Mint, establishment of._--Bill from the Senate to establish a mint considered, 371; moved to strike out clause requiring a representation of the head of the President, &c., on the coins, and insert emblems of Liberty, &c., 371; the practice of monarchs not to be regarded 371; the emblems of Liberty more acceptable to the people, 371; no consequence whether the head of Liberty or that of the President is on the coins, 371; motion carried, 371; disagreement of the Senate, 371; moved that the House recede, 371; no friend of the President could refuse such a tribute to him, 372; compared with the other representation, 372; tyrants' heads have been stamped on the coin, 372; republican cautions not a subject to be treated with levity, 372; motion to recede lost, 373; facts relative to the coinage of cents, 546; committee of examination, &c., appointed, 547. MITCHELL, STEPHEN MIX, Senator from Connecticut, 442, 524. _Molasses_, proposed duty on, 29; duty on, 31; duty on considered, 69; decided, 73. _See Duties on imports._ MONROE, JAMES, Senator from Virginia, 251, 380, 441. MONTGOMERY, WILLIAM, Representative from Pennsylvania, 456, 528; on Indian trading houses, 586. MOORE, ANDREW, Representative from Virginia, 21, 175, 255, 315, 388, 455, 527, 604; on duty on hemp, 36, 37; opposes duty on salt as unjust, 39; opposes discrimination in the pay of members of the two Houses, 124; on the reduction of the army, 410; on the execution of the British treaty, 727. MORRIS, ROBERT, Senator from Pennsylvania, 9, 168, 251, 309, 380, 441, 520. MUHLENBERG, FREDERICK A., Representative from Pennsylvania, 21, 175, 255, 315, 388, 455, 527, 604; elected Speaker, 21; speech on thanks tendered him by the House, 308; chosen Speaker, 455; do. _note_, 455; against a duty of two cents on sugar, 511; answer to thanks of House, 590. MUHLENBERG, PETER, Representative from Pennsylvania, 21, 175, 255, 315, 388, 455, 527; on committee for reception of President, 27; appointed on a committee to draft a bill relative to the importation of African slaves, 84. MURRAY, WILLIAM VANS, Representative from Maryland, 320, 388, 456, 527, 604; does a resignation produce a vacancy, 329; on the bill for the encouragement of the cod fisheries, 351; further remarks, 356; on attendance of Secretary of War, 392; on discharging committee on defeat of St. Clair, 395; on the reduction of the army, 414; on the relief of the Trench emigrants, 474; on conducting the Algerine war, 478; against continuing the embargo, 501; on force to protect S. W. frontier, 517; on the President's speech, 532, 536; on thanks to Gen. Wayne, 544; on the renunciation of nobility for citizenship, 562; for the reference of letter of Secretary of War, 566, 567; on the right to Indian lands within a State, 578; on Indian trading houses, 586; on intruders on Indian lands, 588; on the answer to President's speech, 606; on the attempt at bribery by Robert Randall, 610, 612; statement of the case of Randall and Whitney, 617; on establishing Indian trading-houses, 625; on the support of existing establishments, 627, 628; on the pay of the Speaker, 639; opposes the resolution calling for papers on British treaty, 640. N _Nails and Spikes_, debate on duty on, 38; do. fixed, 38. _Naturalization Laws._--The bill under consideration, 184; motion to strike out "and shall have resided in the U. S. one year," 184; it was policy to let aliens come in and take the oath, and hold lands without any residence, 184; some security for their fidelity and allegiance was required, 185; without a residence the terms are too cheap, 185; policy of European nations, 185; does not apply here, 185; we should be inconsistent by prescribing too long a term for the enjoyment of our privileges, 185; foreign merchants could evade additional duties on foreign vessels unless residence was required, 185; the reason of admitting foreigners is to encourage emigration and people our large tract of country, 185; a long term may restrain emigration, 185; cautions necessary to guard against abuses, 186; the object is not merely to swell the catalogue of the people, but add to the wealth and strength of the community, 186; the admission step by step is a nice question, but residence should be required, 186; a sufficient residence should be required for the privilege of electing and being elected, 186; many of the States admit aliens step by step, 186; doubtful if the constitution authorizes Congress to say on what terms aliens may hold land in the respective States, 186; Congress possesses power only to make a uniform rule of naturalization, 186; if the motion prevails, vagrants, paupers, and outcasts of Europe will find too easy an admission to citizenship, 187; some probation necessary and testimonials of a proper and decent behavior, 187; no creditable man can think such terms difficult, 187; grand jury or district courts could determine on the character of the man, 175; excluding bad men impracticable, 187; propriety of residence doubted, 187; every person, rich or poor, adds to our wealth and strength, 187; citizenship can be made progressive, 187; policy of settling the vacant territory by emigration doubtful, 188; some probation requisite, 188; some classes should be received with encouragement, 188; others excluded, 188; naturalization progressive in England, 189; in some States an act of the Legislature is now required--this is sufficiently easy, 189; unless some residence is required confusion may arise, 189; no person should hold land without a residence and an intention of becoming a citizen, 189; story of voting in Philadelphia, 189; two years inserted in the bill, _note_, 190; act to establish a uniform rate of naturalization considered, 555; moved to insert the words "attached to a Republican form of government," 555; or "attached to the Constitution of the United States," 555; both superfluous, 555; word Republican very indefinite, 555; do. used in the constitution, 555; difficult for many citizens to find two reputable witnesses, 555; other amendments proposed, 555; do. to strike out word "moral" in the words good moral character, 556; the word too strict, 556; the whole useless, 556; moved to exclude from citizenship any emigrant who had borne a title of nobility, 557; reasons for the same, 557; better be required to renounce every thing contrary to the spirit of the constitution, 557; nothing more grateful to a republican than to see them renounce their titles, 557; the title is destroyed when the allegiance is broken, 558; if we cannot manufacture a commodity at home, it is unlawful to import it from abroad, 558; yeas and nays threatened, 558; moved to amend by requiring the emigrant to renounce the possession of all slaves, 558; not a proper connection with the subject, 558; the amendment unnecessary, as slavery was declining fast as possible, 558; the amendment a retaliation upon those who call for the yeas and nays, 559; both amendments unnecessary, 559; what right had the House to say one class of people shall not have that kind of property which others have? 559; amendment withdrawn, 560; further discussion relative to renouncing titles of nobility, 561, 562, 563, 564, 565; amendment adopted, 566. _Naval Establishment_, on a permanent, 481. _Navy, officers of._--Report of the committee on the memorial of officers of the Navy relative to a difference of pay compared with the officers of the army, 239; justice of their claims, 240; origin of commutation, 240; the grounds of their claims, 240; circumstances which led to a distinction, 240; no precedent for extending commutation to officers of the navy, 240; examination of the grounds of these demands, 241; difference between officers of the army and navy, 241; claims strictly just, 241. NEVILLE, JOSEPH, Representative from Virginia, 456, 527. NEW, ANTHONY, Representative from Virginia, 455, 527, 606. _New Hampshire_, vote for President, 10, 385. _New Jersey_, vote for President, 10, 385. _New York City_ Corporation, vote of thanks to, 250. _New York_, vote for President in 1793, 385. NICHOLAS, JOHN, Representative from Virginia, 455, 528, 606; on the French emigrants from St. Domingo, 463; on the relief of, 474; speech on the commerce of the United States, 468; on the power of the Algerines, 476, 478; on the advance of money to France, 514; on the bill to protect the South-western frontiers, 517; on the President's speech, 532, 536, 538; on indemnification to sufferers by the Pennsylvania insurgents, 541, 548; on amending the naturalization laws, 555, 556; on exclusion of titled foreigners from citizenship, 558; on the reference of a letter of the Secretary of War, 566; on the reduction of salaries, 572; on the right to Indian lands within a State, 577; on the Randall bribery case, 615; on the resolution relative to bribery, 621; on the support of existing establishments, 628; on a stenographer for the House, 631; on a salary for members of Congress, 636; on rights of the House relative to treaties, 641; on the execution of the British treaty, 710; on the military and naval appropriations, 766. NILES, NATHANIEL, Representative from Vermont, 317, 388, 527; on the Electoral College, 333; on the flag of the Union, 461. _Non-intercourse_ with Great Britain, _see Great Britain_. _North Carolina_, vote for President in 1793, 385. O _Oaths_, a bill to regulate the time and manner of administering certain, reported, 11; administered to Vice President and each Senator, 15; to Secretary of Senate, 15; leave to bring in a bill, in the House--form of, for the members of the House, 22; of President--proceedings of the House after its administration, 46. Amendments of the Senate to the bill regulating the time and manner of taking oaths, 51; whence is derived the power to oblige members of State Legislatures to take this oath? 51; no doubt respecting the powers of Congress on the subject, 51; if left to State Legislatures, different laws might be passed, and different degrees of obligation required, 51; the power appears to be generally conceded; the principle of policy should be examined, 51; not a suitable time; it argues a jealousy in the national Government, 52; the States should comply with an act of Congress, 52; Congress has not the power to carry it into effect, 52; Congress has such power, 52; the policy depends on a variety of circumstances, 52; it may be considered an interference with the State Governments, 53; no reason offered by the Senate for concurrence, 53; a general provision better than particular ones, 53; no other Legislature capable to make one, 53; it is the duty of the House to detail the general principles laid down by the constitution, and reduce them to practice, 53. O'BRIEN, RICHARD, petition of, 389. _Officers_, removal of, 102; debate on the power of the President, 103. _See Executive Departments._ ORR, ALEXANDER D., Representative from Kentucky, 457, 528. OTIS, SAMUEL ALYNE, elected Secretary of the Senate, 10. P PAGE, JOHN, Representative from Virginia, 21, 175, 317, 388, 477, 546, 604; presides in Committee of Whole, 22, 24, 27, 33, 37, 39, 41, 42; on application to amend the constitution, 48; on tonnage duties--experience of Virginia, 56; presides in Committee of the Whole, 57, 58, 71; opposed to all titles for the President, 66, 68; on the admission of Rhode Island, 101; remarks on the Treasury Department, 109; further remarks, 110; on the compensation of President, &c., 116; further remarks, 119; do. on Vice President, 122; on amount of compensation of members, 129, 132; on the right of Instruction, 139; do. further, 143; on the admission of reporters for the press, 180; on making easy terms of naturalization, 185, 187; on the public debt, 193; urges commitment of Pennsylvania memorial, 210; on discrimination among the public creditors, 221; do. further remarks, 228; on a seat of Government, 247; speech on ratio of Representation, 325; a bill for the encouragement of the cod fisheries, 364; on the head to be stamped on American coins, 371, 372; on discharging committee in case of St. Clair, 395; on reference to the Committee of the Whole of the resolutions relative to the official conduct of the Secretary of the Treasury, 420; on the exclusion of titled foreigners from citizenship, 557; on reference of letter of Secretary of War, 570; on the reduction of salaries, 573; on the support of existing establishments, 627; on the pay of the Speaker, 638; on the rights of the House relative to treaties, 664; on the execution of the British treaty, 726. PAINE, ELIJAH, Senator from Vermont, 591. PAINE, WINGATE, Representative from New Hampshire, 455, 527. _Paris._--Letter of President of Commonalty on death of Dr. Franklin, 256. PARKER, JONATHAN, Representative from Virginia, 21, 175, 259, 388; appointed by House to make list of votes for President when counted in the Senate, 22; appointed on Committee of Supplies, 46; appointed of Committee of Conference on subject of title of President--because it is all repugnant to republicanism, 67; moves a duty on importation of African slaves, 73, 74; withdraws motion for duty on African slaves, 76; appointed on committee to draft a bill relative to the importation of African slaves, 84; on duties on distilled spirits, 263; further remarks, 264. PARKER, JOSIAH, Representative from Virginia, 456, 527, 604; on the reduction of the army, 399; further remarks, 405; on the commerce of the United States, 472; against the embargo laws, 499; on the President's speech, 539; on resolutions of thanks to General Wayne, 543; on Indian trading houses, 585; on the address to the President, 605, 606; on establishing Indian trading houses, 625, 633. PARTRIDGE, GEORGE, Representative from Massachusetts, 22, 175, 255; on duty on molasses, 31; on duty on hemp, 36, 37. PATERSON, WILLIAM, Senator from New Jersey, 9, 168; appointed on Judiciary Committee, first Congress, 10; on committee to prepare answer to Washington's Inaugural, 12; resigns his seat in Senate, 251. PATTON, JOHN, Representative from Delaware, 457, 604. _Pennsylvania._--Vote for President, 10, 385. _Pennsylvania Insurgents._--The recommendation of compensation to the sufferers by the Pennsylvania insurgents considered, 546; proposed to confine it to officers of the Government, 547; sound policy required indemnification of the sufferers, 547; the whole affair but a trifle, not twenty thousand dollars, 547; there should be no discrimination, 547; it should be confined to persons who had suffered in defence of Government, 547; a private person more entitled to indemnification than revenue officers who are paid for their services, 547; let the sufferers have recourse to the laws, 547; Government equally bound to make compensation to those who suffered by British soldiers, 548; amendment rejected, 548; on the bill before the House, immediate indemnity, objected to, 548; if you pay the claims you cut off civil process, 549; it becomes a precedent, 549; the measure will encourage a spirit to suppress insurrections, and it may encourage insurrections, 549; resolution is unsound policy, 549; the subject should be postponed to another session, 550; no civil process will lie in the case, 550; the amendment to confine the damages to citizens personally aiding or assisting the officers, considered, 551; it becomes the honor and justice of the Legislature to indemnify them, 551; the point of law considered relative to civil actions, 552; the British had practised indemnification to the Royalists, 553; previous question carried, 553; other amendments added, 554. PERSON, THOMAS, petition of, _see Indian lands_ within States, &c. _Petition_, of Catharine Greene, 335; of William Dunbar, in behalf of the heir of George Galphin, 383; of Richard O'Brien, 339; of Warner Mifflin, on subject of negro slavery, 397; to make Hudson, N. Y., port of entry, 410; of Conrad Laub, respecting the seat of Albert Gallatin in the Senate, 442; from the Quakers of Rhode Island, relative to the slave trade, 446. _Philadelphia._--Letter from Commissioners offering Congress the Court House, 251. PICKENS, ANDREW, Representative from South Carolina, 457, 528. PINKNEY, WILLIAM, resignation of, 320. _Post Office._--Bill to establish post offices and post roads, 249; moved to empower Postmasters General to establish certain roads under the direction of the President, 249; reasons for opposing a concurrence in this amendment, 249; reasons in favor of the amendment, 249. _Franking Privilege_ under consideration, 330; it is presumed no gentleman will ask a member to frank for him, 330; if abuses arise, Legislature can correct them, 330; to take away privilege of franking would level a deadly stroke at the freedom of the press, 331; dangerous to take any measures that may stop the channels of public information, 331; franking granted, not as a personal benefit, but for the good of the constituents, 331; means of bringing much information to the House, 331; some restrictions can be put on it, 331; equally as objectionable in the hands of the President, 331; so long as it is advantageous to citizens it should not be relinquished, 331; motion to withdraw the privilege from members of both Houses, 332; the security of the people is that their Representatives are subject to the same regulations as themselves, 332; Congress enjoys only such rights as are mentioned in the charter, 332; people view this privilege with a jealous eye, 332; example of Great Britain shows to what an enormous height the abuse can be carried, 332; the privilege is unequal in its operation, 332; the diminution of revenue not a sufficient reason for abolishing the privilege, 332; revenue a secondary consideration, 332; if this privilege be taken away, the avenues of information cut off, 333; various other considerations in favor of retaining the privilege considered, 333; bill passed, 335. _Post Roads_ from Maine to Georgia, resolution relative to a survey of, &c., considered, 637; the business of the General Government to undertake the improvement of roads, 637; present roads greatly improved by adopting the resolution, 637; not right to apply revenues of post office to this object, 637; resolution offered by Mr. Madison, 637. POTTS, RICHARD, Senator from Maryland, 384, 447, 524, 591. _Presidency, Vacancy in._--Bill declaring what officer, in case of vacancy in the offices of President and Vice President, shall act as President, 267; it must be an officer of the United States by the constitution, 267; shall he hold for the remainder of the term, or only until a new election? 267; Secretary of State, 267; President of the Senate, _pro tem._, moved, 267; this last motion repugnant to the constitution, 267; the matter is left with the Legislature, 267; Chief Justice a suitable officer, 268; objections to different officers, 268; delay urged, 268; unnecessary, 268; considerations respecting various officers, 269; the contingency might not happen more than once in eight hundred years, 270; further objections to Secretary of State, 270; motion to strike out clause providing the President of the Senate, _pro tem._, or the Speaker of the House shall act as President, in case of a vacancy, 334; subject of not immediate importance, 334; objected to as not connected with other parts of the bill, 334; necessary the business should be decided, 334; bill unconstitutional--neither the President, _pro tem._, nor Speaker, nor officers of the government in the sense contemplated, 334; Speaker no more an officer of the government than any member of the House, 334; unconstitutionality further considered, 334. _President_, vote for, in 1789, 10; in 1793, 385; compensation of, 16, 17; message on disputes between some of the States and the Indian tribes, 16; on the rejection by the Senate of the nomination of Benjamin Fishbourn, 17; meets the Senate in consultation, 18; _note_, 18; message to Senate on hostilities of Wabash Indians, 19; on ratification of treaties with Indian tribes, 19; message communicating the death of the Dauphin of France to the Senate, 20; on adjournment of Congress, 20; his reply to the address of the House, 57; his power to remove officers, 86; declared by vote, 90; compensation of, 116; debate on, 116; salary fixed, 120; message to House, 167; his reply to address of the Senate, 170; his term of office, when commenced, 171; his message to the Senate on the accession of Rhode Island to the Union, 172; on conferring a brevet commission on a French officer, 172; message from, to the Senate, 173; _note_, 173; question of consultation addressed to the Senate, 173; message to Senate on treaty with Indian tribes, 173; his reply to address of the House, 179; message to Senate on surrender of Western posts by the British, 254; reply to answer of the Senate, 313; reply to address of House, 316; reply to Senate's address, 383; inaugural address at second election, 387; counting votes for, 418; answer to address of the Senate, 444; reply to address of the House, 457; reply to Senate's address, 523; reply to House address, 542; message to Senate with colors of French Republic, 597; answer to address of the House, 597; reply to address of the House, 609; message to the House with the French Flag, 616; answer to French Minister on presentation of French Flag, 617; message relative to intruders on Cherokee lands, 635. PRESTON, FRANCIS, Representative from Virginia, 455, 527, 606; on the execution of the British treaty, 740. _Protection_ of American commerce, _see Commerce_; do. of frontiers, _see Frontiers_. _Protective duties_, how far sustained by the debate on the impost bill, _note_, 84. _Protest_, or dissent of any Senator--motion to grant right to enter on the journal of the Senate--negatived, 16. PROVOST, SAMUEL, elected chaplain of the Senate, 11. _Public lands_, debate on resolutions respecting the disposal of the land in the Western territory, 99; speedy measures necessary to be taken, 99; a land office should be opened to sell the land in small quantities, 99; great numbers of people are on the ground waiting to purchase, 100; they will move to Spanish Territory, or take possession of ours without leave, 100; other reasons showing the necessity of doing something, 100; this business should not be precipitated, 101; some early measures necessary, 101. Resolution to establish a land office and fix terms of granting vacant lands in the west, considered, 113; character of the emigration, 114; adhesion to the Union, 115; organization of a land office, 115; its system of business, 115; resolution adopted, 116; on a resolution to establish a land office at the seat of Government, &c., 260; details of the business, 260; better to settle general principles, 260; perfect liberty in selection by purchasers most for the interest of the Government, 260; reasons against indiscriminate location, 260; bad effects of, 261; manner of laying out land by late Congress, 261; moved that the price thirty cents per acre be struck out, 261; various prices proposed, 261; motion lost, 261; moved--the price be not less than thirty cents per acre, 261; the policy of the Government is to fix a price so reasonable that any can pay, 261; relative value of lands in several States, 261; no discretion for determining the price should be left to any one, 262; considerations for and against fixing a price, 262; practice of some States, 262. Q _Question_, the previous--_note_, 101; ordered, 102. _Quorum_, at first session of Senate when formed, 9. R RAMSEY, DAVID, petition to the House on eligibility of Wm. Smith, 33. RANDALL, ROBERT, charged with an attempt at bribery, 609; arrest of, 611; trial before the House, 618. READ, GEORGE, Senator from Delaware, 10, 251, 309, 380; resigns his seat in the Senate, 442. READ, JACOB, Senator from South Carolina, 591; on answer to President's speech, 595. READ, JOHN, Representative from Massachusetts, 604; on the rights of the House relative to treaties, 671. _Reception of President_, Senate Committee on, 10; of President, report of Senate Committee thereon, 11; of committee on conducting the same, 11; report of House Committee on, 33; report of committee appointed for that purpose, 44. _Reduction of Salaries_ of Executive officers, clerks, &c., and Senators and Representatives, &c., motion for a committee to bring in a bill, 571; a subject of grievous complaint among citizens, 571; salaries exorbitant, 571; other circumstances considered, 571; experience of members of the House, 572; the motion unnecessary, 573; the question arises from misapprehension, 574; the pay of members considered, 574; of Speakers, 574; of Senators, 574; difference between pay of Senators and Representatives, 575, _note_, 575; present pay small enough, 575; motion negatived, 575. _Report_ of House Committee on messages, &c., between the two Houses, 45; of House Committee of Elections on proceedings relative to the petition of David Ramsey, 45; of House Committee on title of President, 47; of committee on unfinished business of last session, 171; of Special Committee on Quaker memorial, 238; of Committee of the whole House on Quaker memorial, 239; _note_, 239; on memorial of the officers of the navy, 239; on mode of examining votes for President, 417; on admission of the delegate south of the Ohio, 530; on proceedings in the Randall bribery case, 614. _Reporters_, their admission to the House, 180; blunders of, 181. _Representation, ratio of_, moved there be one Representative for every thirty thousand inhabitants, and motion to strike out "thirty," considered, 320; sense of the States considered, 321; one to thirty thousand will not give more than an adequate number, 321; objection on account of expense, considered, 321; citizens of United States expect this ratio, 321; thirty should be struck out, 321; difficult to do business if representation too numerous, 321; people will be satisfied if ratio is higher, 321; it will increase expense and the number of public officers, 322; two points to be considered, viz., what is the proper number to constitute a representative body for the United States, and what ratio will leave the fewest fractions in the States, 322; thirty-five thousand leave fewest fractions, 322; an adequate number was the great object, 322; future sessions will be shorter, 322; existence of the Union may depend on fulness of representation, 322; doubtful if a large representation was less liable to corruption than a small one, 322; philosophical examination of the principle of representation, 322; the opinion advanced for reducing the representative branch is a dangerous error, 323; situation of the country calls for great extension of the principle of representation, 323; other points considered, 323; the will of the people should be regarded, 324; expenses, delays, and other objections considered, 324; is not Congress precluded from exercising any discretion in the matter by the constitution? 324; is it expedient to do it? 324; objects of State and Congressional assemblies, 324; leave the restriction of the number of members to the people, or to some future Congress, 325; Congress being the creature of the people should not lessen the importance of the people or exclude them from a full share in their own government, 325; one man cannot know the wishes of thirty-five thousand, therefore the people should not be desired to accede to that ratio, 325; it is said the President secured the present ratio to the people, and shall we be less solicitous than the President? 326; no danger of disorders from a large number, 326; if more wisdom is brought into the House by a larger number, is not also more folly, 326; the Senate, a smaller body, is as competent as the House, 326; if we go on theory the representation should be enlarged, 327; no propriety in comparing the government to that of Great Britain, 327; no danger of corruption from a large number, 327; the constitution secures independence of legislature, 327; a numerous representation tends to weaken, if not destroy, the Government, 327; the proposed amendment to the constitution should be a guide to the House, 328; instability of State governments arises from mode of election, 328; other objections considered, 328; on the resolution that the representation be one to thirty thousand, adopted, 328. _Apportionment bill_, considered, 374; the people expect one representative for thirty thousand inhabitants, according to the constitution, 375; grounds of this expectation, 375; the inequality of representation suggested to result from this ratio is more apparent than real, 375; objection that the relative influence of the States should not be resorted to in the apportionment of representatives, considered, 375; the inconveniences of the rule in their greatest extent can never be very great, 375; the increasing representation considered, with a view to the necessity of establishing in this branch a permanent sympathy with the landed interest, 376; organization of a moneyed interest, 376; apprehensions from the principles beginning to be developed, 377; thirty-three adopted, 377. _Resignation, does it cause a vacancy?_--Wm. Pinkney resigned as Representative from Maryland without taking the oath or his seat, John F. Mercer was appointed by the Governor and Council to fill the vacancy under the laws of Maryland, report on considered, 328; under the constitution a resignation does not cause a vacancy, 328; in the British House of Commons there can be no resignation, 329; under the constitution Executives of States are not judges of a vacancy, 329; great inconvenience would result from a rejection of the report, 329; no analogy between Parliament of Great Britain and this House, 329; no part of the constitution prohibits a member from resigning, 329; it is uncertain how the practice of the British Parliament originated, 329; vacancies can happen from various causes, 329; difference between a resignation before and after taking a seat, 329; great inconvenience of contrary course, 329; the constitution contemplates resignations, 329; nothing to show resignations may not take place in one House as well as in the other, 329; report accepted, 330. _Resolution_ on the consideration of all bills on a second reading in the Senate, 15; on contested election of Wm. Smith, 94; on Executive Departments, 94; relative to Western lands, 100; _note_, 100; adopted, 101; relative to the admission of Rhode Island, 101; relating to Western lands, 113; adopted, 114; on the establishment of a land office, 127; for a Home department, 127; of thanks to the Speaker at close first Congress, 129; on adjournment, 129; on location of seat of Government, 146; on a central location, 146; for the appointment of Commissioners to fix seat of Government on Susquehanna, &c., 159, 161, 163; for Commissioners to fix site for a seat of Government, 163; proviso offered to, 163; rejection of, 163; adoption of resolution, 163; on unfinished business of last session, 171; on non-intercourse with Rhode Island, 171; adopted, 173; of Senate to attend the funeral of Thomas Bland, 172; _note_ on, 172; of Senate on secret article of treaty with the Creek nation, 173; of Senate relative to a treaty with the Cherokee Indians, 174; of thanks to the Corporation of New York city, 174; of adjournment, 174; of House on Chaplain, 175; relative to an answer to the President's speech, 177; on public credit, 190; relative to eulogium on Dr. Franklin, 259; on jails of the States, 308; of the Senate, relative to open doors, 313; on the ratio of representation, 328; to refer petition of Catharine Greene to select committee, 341; on the petition of Catharine Greene, 341; lost, 341; on the courtesies of France, 370; on the petition of Catharine Greene, 370; of Senate respecting open doors, 384; on the official conduct of the Secretary of the Treasury, 418; of thanks to Speaker Dayton, 440; of Senate relative to amendments of the constitution, 445; of Senate relative to open doors, 448; relative to British debts, 482; of non-intercourse with Great Britain, 498; on indemnity for spoliation, 503; of amendments to the constitution 524; on deported slaves of the Revolution, 525; amendment, 526; _note_, 526; of thanks to Gen. Wayne and others, 542, 546; of thanks to the militia of New Jersey, Pennsylvania, Maryland, and Virginia, 546; respecting losses by Pennsylvania insurgents, 554; on excluding titled foreigners from citizenship, 557; on the right to Indian lands within a State, 582; relative to the case of Thomas Person and others, 583; relative to the heirs of Count de Grasse, 583; relative to intruders on Indian lands, 584; relative to Indian lands in Georgia, 584; relative to open doors in the Senate, 593; _note_, 594; in Senate on presentation of French Flag, 597; relative to attempt at bribery, 621; on post roads, 637; on the treaty with Great Britain, 640, 692; relative to the refusal of the President to furnish papers relative to the treaty with Great Britain, 696; _note_, 696; on the sense of the House relative to the British treaty, 751. _Rhode Island, Admission of._--Resolution desiring Rhode Island to take the necessary steps for admission into the Union, 101; propriety of interfering in the matter doubtful, 101; why interfere in the concerns of sister States who have not joined the confederacy, 101; course of Rhode Island, 101; not proper for this House to expose themselves to have the invitation rejected, 102; previous question moved for the first time, 102; reasons therefor, 102; decided in the negative, 102; letter from Governor of, to the President, 171; proposal of non-intercourse with, 171; considered in the Senate, 172; adopted, 173; vote for President in 1793, 385. ROBINSON, MOSES, Senator from Vermont, 380, 441, 520, 590. ROSS, JAMES, Senator from Pennsylvania, 523, 591. _Rules._--Senate, committee on, in case of conference, 10; for conducting business, Senate committee on, first Congress, 10; of the Senate for open doors, 314. _Rum._--The word changed to distilled spirits, 28; duty on, 28. RUTHERFORD, JOHN, Senator from New Jersey, 309, 380, 441, 523, 591. RUTHERFORD, ROBERT, Representative from Virginia, 455, 527, 604; objects to the duty on salt, 506; on the President's speech, 538; on the reduction of salaries, 573; on the admission of Tennessee, 754. RUTLEDGE, JOHN, votes for, as Vice President in 1789, 10. S _Salt_, debate on duty on, 38; duty fixed, 41. _Salted Provisions_, drawback on, fixed, 41. SCHUREMAN, JAMES, Representative from New Jersey, 21, 175, 255; opposes the motion to lay duty on African slaves as improper at that time, 74. SCHUYLER, PHILIP, Senator from New York, 16; draws lots with Rufus King for length of term, 10, 168, 254. SCOTT, MAJOR GENERAL, resolution of thanks to, by the House, 546. SCOTT, THOMAS, Representative from Pennsylvania, 175, 255, 455, 530; remarks on the principle of discrimination in laying duties, 28; favors duty on hemp, 36; opposes duty on salt, 39; on Western lands, 99; on do., encouragement to emigration, 113; plan of land-office, 115; on selecting a seat of government, 155; on a distinction between foreign and domestic creditors, 194; further remarks, 197; do. on the discrimination and liquidation of the public debt, 198; on constitutionality and propriety of Pennsylvania memorial for the abolition of slavery, 208; on a seat of Government, 245; on establishment of a land office, 260; further remarks, 261; moves to strike out thirty cents as the price of land, 261; on the pay of soldiers, 459; further remarks, 460; on the relief of the French emigrants, 474; on exclusion of titled foreigners from citizenship, 558; on the right to Indian lands within a State, 578; on intruders on Indian lands, 587. _Seat of Government._--Motion to fix a permanent residence for the general Government of the United States, 145; a spot on the banks of the Susquehanna regarded as most central, although south of the centre of population, 145; resolution to locate on east bank of Susquehanna offered, 146; a great national question, 146; a preamble of general principles moved, 146; spot on the Delaware proposed, do. on the Potomac, 146; preamble regarded as unnecessary, 146, 147; voted in the negative, 147; neither centre of wealth, or population, or locality, should decide, as the future may make great changes, 147; the several places should be considered on their merits, 147; original motion under consideration, 148; advantages of the banks of the Susquehanna, 148; the whole thing arranged out doors, let its consistency with general principles be shown, 148; answer, 148; if Eastern members have settled the question let them settle the principles of the government, 149; the territorial centrality on the Susquehanna denied, 149; the place proposed comes within the general principles agreed on, 149; cannot men consult together who have a common interest, 150; the Susquehanna south-west of the centre of wealth, &c., 150; the Potomac regarded as unhealthy, 150; banks of the Potomac the best place, 150; advantages of Harrisburg, 151; advantages of the Potomac, 151; advantages of the Hudson, 151; various considerations on the subject, 152; motion to insert Harrisburg, lost, 153; motion to strike out "east bank of the Susquehanna," and insert Potomac, 158; remarks thereon, 154; motion for committee to rise, 154; attempts to precipitate a decision, 154; a league between the Northern States and Pennsylvania against the South, 155; opposition in New England to the Potomac, 155; this business should be decided under an equal attention to the rights of the community, 155; effects of an uncentral location, 156; seat should be the centre of the Union, 156; Potomac the centre, 157; facts respecting the Susquehanna, 157; objections to the Potomac considered, 157; arguments in favor of the Susquehanna, 158; motion to strike out Susquehanna and insert Potomac, lost, 159; motion to insert "or Potomac" after Susquehanna, lost, 159; resolution for appointment of commissioners to examine, report to the President, and purchase on east bank of Susquehanna, &c., offered, 159; the site should be ceded, 159; the jurisdiction be exclusive, 160; several States offered a cession, 160; the reproach of bargaining, 160; do. repelled, 160; opposition of Southern members made to prevent an improper decision, 160; motion to insert "north bank of Potomac" for east bank of Susquehanna, lost, 161; do. to insert Wilmington, &c., lost, 161; do. to insert Potomac, Susquehanna, or Delaware, lost, 162; do. to insert "either side of the Delaware," &c., lost, 162; do. to insert "banks" for east bank, carried, 162; do. to insert "or Maryland " after Pennsylvania, lost, 162; do. to insert "Wilmington" for city of New York, lost, 163; do. to insert "Philadelphia" for New York, lost, 163; bill to establish a seat of government, considered, 164; moved to confine the choice between the mouth of Checkiselungo creek and the mouth of the Susquehanna, 164; moved to strike out all that part of the bill making New York the temporary seat of government, as unconstitutional, 164; bill passed, 164; do. passed by the Senate, with amendments, and returned to the House, 165; motion to postpone its consideration, 165; House should not be influenced by the Senate keeping the appropriation bill as a hostage, 165; insinuation wrongful, 165; amendment of Senate changes the tenor of the bill, 165; Germantown most proper spot, 165; arguments for postponement, 166; motion lost, 166; motion to concur with Senate, 166; advantages of Germantown, 166; a costly location, 167; a departure from every principle adopted by the House, 167; an amendment moved and carried, 167; on Committee of the Whole on a bill from the Senate fixing the temporary and permanent seat of government, debated, 242; moved to strike out "Potomac" and insert "a district to include the town of Baltimore," 242; centrality is not an idea which predominates in regard to any other country, 242; if the clause is struck out the bill will be lost, 242; consideration of the relative interests of the Southern, Middle, and Northern States, 243; a central position necessary, 243; the merits of the question, 243; map of the Potomac, 243; reasons in favor of Baltimore, 243; objections to the place proposed, 244; Philadelphia will become the permanent residence, 244; no necessity for moving temporary residence, 244; Potomac a national location, 244; only three States can claim it, 244; advantages of the Potomac, 245; advantages and disadvantages of the two places compared, 245; centrality of the Potomac, 245; not the time to fix the seat of government, 245; objections considered, 246; New York a temporary seat, 246; history of the Quakers, 246; conduct of New York during the war, 247; conduct of her Senators on this question, 247; Baltimore the place on the map, 247; character of New York, 247; advantages of Baltimore, 247; principles of the bill, 247; no State has a right to the seat of government, 248; report of a committee of the late Congress, 248; Baltimore or the Potomac too far south, 248; Baltimore nearest the centre, 248; after present ferment has subsided, Potomac will be considered the bond of the Union, 248; improvements on the Potomac, 248; difficulty of ever removing from Philadelphia if made temporary residence, 248; proceedings at last session, 248; motion lost, 248; moved to strike out Potomac and insert Delaware, 249; motion lost, 249; do. to strike out Potomac and insert Germantown, 249; do. lost, 249; do. to strike out Potomac and insert Baltimore, 249; do. lost, 249; do. to adjourn, lost, 249; bill passed, 249; _note_, 250. _Secretaries_, resolution requiring attendance on the House, 390. _Secretary_, of the Senate, elected by ballot, 1st Congress, 10. _Secretary of the Treasury_, debate on his duties, 109; on communicating information to the House, 111; report of, 176; manner of making it, 177. _See Treasury._ _Secretary of War_, letter from, 393. _See St. Clair._ SEDGWICK, THEODORE, Representative from Massachusetts, 175, 395, 455, 530, 604; on removal of officers, 103; on the compensation of the President, 117; further remarks on pay of Vice President, 120, 122; motion on the pay of members of Congress, 123; favors discrimination in the pay of members of the two Houses, 125; opposes a Home Department, 128; on amount of pay of members, 130; farther remarks, 132, 133; on the manner of giving instructions to Representatives, 143; on the location of a seat of Government, 150; further remarks, 154; on the report of the Secretary of the Treasury, 183; opposed to indiscriminate admission of foreigners, 188; on the importance of prompt action relative to the public debt, 199; on the immediate second reading of the Quaker Memorial, 203; on discrimination of public creditors, 211; on memorial of officers of navy, 241; on price of public lands, 261; further remarks, 262; on vacancy in the Presidency, 267; on excise bill, 265; on officers, 271; speech on the Bank of the United States, 282; on resignation of William Pinkney, 329; on the electoral college, 333; on vacancy in the office of President, 335; on official conduct of Secretary of Treasury, 426, 429; on non-intercourse with Great Britain, 493; on merits of indemnity resolution, and on reference, 504; on the President's speech, 532, 539; on indemnification sufferers by Pennsylvania insurgents, 547, 553; on amending naturalization laws, 556, 557, 565; on intruders on Indian lands, 585; on the answer to the President's speech, 607; on the support of existing establishments, 626; on a stenographer for the House, 630; on a salary for members of Congress, 636; on rights of the House relative to treaties, 656; on the admission of Tennessee, 755. SEENY, JOSHUA, Representative from Maryland, 27, 175, 255, 315; appointed on committee to draft bill on tonnage duties, 57; urges decision relative to duty on molasses, 69; presents the offer of ten miles square by Maryland for a seat of Government of United States, 81; on the compensation of Vice President, 122; opposes discrimination in the pay of members of the two Houses, 125; approves of the Susquehanna region for a seat of Government, 161; on constitutionality of memorial for the abolition of slavery, 203; on discrimination among the public creditors, 226; on memorial of officers of navy, 240; on a seat of Government, 244; on answer to President's message, 258; on the election of Mercer, 328; further remarks, 329. _Senate_, members present at first meeting, 9; adjournment from day to day for want of a quorum, 9; session with closed doors until 1794, _note_, 9; no publication of debates of, _note_, 9; receives the House on the inauguration of Washington, 12; resolution of respecting titles of President and Vice President, 14; do. division in three classes, 14; first executive session, 15; confirmed the appointment of collectors, naval officers, and surveyors, 16; mode of communication with the President, 16; report on, 17; do. resolution on, 17; President consults with, _note_, 17; wait upon the President and deliver their answer to the inaugural address, 18; on ratification of treaties with Indian tribes, &c., report of committee on, 20; conference with the House on the impost bill, 113; results of, 113; and House meet together to receive President's message, 168; address of to the President, 169; manner of presentation, 170; when the term of office of members commenced, 171; answer to the President's address, 253; notice of letter of French King, 313; answer to President's message, 313; resolutions respecting public proceedings, 384; special session of, 386; answer to President's address, 383; answer to the President's message, 444; answer to President's message, 523; executive journal of, 524; answer to President's address to 1st session, 4th Congress, 594. _Sequestration of British debts._--_See Great Britain._ SEVIER, JOHN, Representative from North Carolina, 260. SHERBURNE, JOHN S., Representative from New Hampshire, 455, 527, 604; on a stenographer to the House, 630. SHERBURNE, UPTON, Representative from Maryland, 317. SHERMAN, ROGER, Representative from Connecticut, 21, 175, 255; views on the proposition to lay duties on Madeira wine, 31; on oaths of State officers, 53; on necessity of impost duties, 61, 65; on committee of conference respecting title of President, 68; opposed to embracing African slaves in a bill for duties on goods, &c., 73; further remarks, 74; on limiting the period of the impost bill, 80; further remarks, 84; on naturalization of pauper emigrants, 84; on admission of Rhode Island, 101; on the removal of officers by a general law, 108; on compensation of Vice President, 121; offers a resolution respecting the form of amendment of the constitution, 133; remarks, 136, 137; do. _note_, 137; on the amendment to the constitution relative to the freedom of conscience, 137; on the right of instruction, 139; on the place for a seat of Government, 159, 166; on report of Secretary of the Treasury, 183; on committee on Pennsylvania memorial, 209; on memorial of officers of the navy, 240; further remarks, 240; on a seat of Government, 242; further remarks, 248; on answer to President's message, 257; on vacancy in the Presidency, 267, 269; on excise bill, 265; further remarks, 270, 272; on the commitment of the bill for a Bank of the United States, 273; Senator from Connecticut, 309, 380. SHORT, WILLIAM, proposed to the Senate as Minister to France, 15; his fitness considered, 15; appointment to charge during the absence of the Minister, confirmed, 15. SINNICKSON, THOMAS, Representative from New Jersey, 27, 175, 255; on duty on beer, 34; opposes a limit to the impost bill, 77; further remarks, 83; appointed on a committee to draft a bill relative to the importation of African slaves, 84. SITGREAVES, SAMUEL, Representative from Pennsylvania, 604; on the admission of Tennessee, 758. _Slavery and Slave Trade._--Address of the annual assembly of Friends in Philadelphia, and one of the society of Friends in New York, against the continuance of the slave trade, considered, 201; motion to refer to a committee, 201; contrary to usual proceeding to commit to-day, 201; why is its second reading pressed to-day? 201; reference urged, 201; no apprehension from commitment at once--constitution secures the rights, 202; any measures indicative of an intention to interfere may sink the value of this kind of property, 202; men have come here to meddle in a business with which they have nothing to do, 202; the memorialists are influenced by motives of benignity, 202; if the importation was crushed, the value of the slave would be increased instead of diminished, 202; if it was abolished through interference of General Government, it would evince a disposition to total emancipation, and the property be in jeopardy, 202; is the whole morality of the United States confined to Quakers? 203; the petition desires an unconstitutional act, 203; no foundation for apprehension, 203; it is proper to commit the petition, 204; no importance to the question unless members made it so, 204; the memorialists should be dismissed, 204; petition laid over, 205; memorial of Pennsylvania Society for abolition of slavery, 207; memorial of Friends in Philadelphia read second time, 208; petition of Friends contains unconstitutional requests, 208; any thing unconstitutional denied, 208; it prayed for an unconstitutional measure, and its commitment would sound alarm, 208; strictly constitutional, 208; no difficulty in committing the memorial--committee would understand their business, 209; language of the constitution on the importation of slaves, 209; it prays for the abolition of slavery, 209; the present is not a time to consider the subject, 209; the present a proper time to determine the constitutional limits, 209; no power in the House to grant the prayer, and therefore unnecessary to commit, 209; jealousy of Southern States, 210; the States would never have entered the confederacy if their property had not been guaranteed to them, 210; the memorialists do not ask total abolition of the slave trade, but that Congress will consider if they can exercise justice and mercy, 210; no tendency in the commitment to break in on the constitution--the object is worthy of consideration, 211; the interference of Congress compatible with the constitution, 211; nothing in the petition like what was complained of, 211; the petitioners pray Congress to take measures for abolition of slave trade, 211; commitment carried, 211; debate on the report upon the memorial of the people called Quakers, 229; moved to strike out the first paragraph, 229; contents of report, 229; total prohibition not produce difficulties, 229; particulars which took place in the course of the investigation of the business, 229; pernicious consequences likely to flow from interference of Congress, 229; humane treatment of the slaves, 229; Quakers enemies of freedom, 229; warm altercation, 229; injustice of the measure of interference, 230; powers of Congress respecting slavery and slave trade, 230; an indecent attack on the character of certain States, 230; interference contrary to Quaker principles, 230; where does the power of manumission reside? 230; plans of the friends of emancipation, 231; negroes are inferior race, 231; slavery is no new thing, 231; does slavery weaken the Southern States? 231; is public opinion against slavery? 232; this squeamishness is very extraordinary, 232; consequences of emancipation, 233; if importation prohibited, will that species become extinct? 233; will the abolition strengthen South Carolina? 233; does toleration of slavery bring reproach on America? 233; does slavery vitiate and debase the mind of the owner? 234; was South Carolina wanting in patriotism? 234; the cruel mode of transportation, 235; the clause in the constitution was designed to apply expressly to negro slaves, 235; now is the time to declare the sense of Congress, 236; irregularities of the course of the debate, 236; Paley on slavery, 236; the genius of the government in relation to slavery and slave trade, 237; characters of the signers of the memorials, 237; character of Franklin, 238; moved to take up report of Committee of the Whole, 238; every principle of policy and concern for the dignity of the House and peace of the country requires it to be dropped, 238; reasons for taking it up, 238; ordered that report and memorials be inserted in the journal, 338; _note_, 239. _See Duties_ on imports, 73. _Abolition Petitions._--Petition of Warner Mifflin on negro slavery considered, 397; after what has passed, the subject is started again, 397; if a stop is not put to such proceedings, the Southern States would be compelled to apply to the General Government for their interference, 397; moved that the paper be returned to the Clerk, &c., 397; on the general principle every citizen has a right to petition the Legislature, 397; the subject is not properly before the House, 397; every citizen has a right to petition for a redress of grievances, but the present paper is mere rant, and concludes with no specific prayer, 397; if favorably received, it would occasion alarm in the Southern States, 397; motion agreed to, 397. _To prohibit carrying_ on the slave trade, bill considered, 480; amendments proposed, 480; ordered to be engrossed, 480. _To require foreigners_ to renounce their slaves before admission to citizenship--motion, 558; debate thereon, 558; motion withdrawn, 560; do. renewed, 566; do. vote on, 566. _Slaves, African._--Duty on importation, proposed, 73; debated, 73; deported, of the Revolution, 525; importation of, _see Duties_ on imports. SMILIE, JOHN, Representative from Pennsylvania, 455, 528; on the pay of soldiers, 459; on the relief of the French emigrants, 474; on the preparations for the Algerine War, 478; against increase of the army, 515; on reference of letter of Secretary of War, 568. SMITH, ISAAC, Representative from New Jersey, 604; on the rights of the House relative to treaties, 675. SMITH, ISRAEL, Representative from Vermont, 317, 388, 455, 527, 604. SMITH, JEREMIAH, Representative from New Hampshire, 315, 388, 455, 527, 604; on election of President, 334. SMITH, NATHANIEL, Representative from Connecticut, 609. SMITH, SAMUEL, Representative from Maryland, 455, 555, 605; on the reception of the French emigrants from St. Domingo, 462; do. on the relief of do., 474; on the commerce of the United States, 473; on the Algerine War, 476; on the sequestration of British debts, 483; on the renunciation of nobility for citizenship, 562; on establishing Indian trading houses, 639; on the execution of the British treaty, 732; on the army establishment, 760. SMITH, WILLIAM, Representative from Maryland, 21, 175, 255; opposes high duties, 33; appointed on Committee of Supplies, 46; opposes law of tonnage duties, 54; on the site for the seat of Government, 166. SMITH, WILLIAM, Representative from South Carolina, 27, 175, 255, 315, 388, 455, 527, 604; his eligibility, 33; opposes duty on salt, as it will lead to dissatisfaction, 39; opposes present consideration of duty on African slaves, 73; favors limiting the period of impost bill, 79; on power of President to remove Secretary of State, 86; remarks on diseligibility, 94; on the President's power of removal, 102; on the compensation of Vice President, 122; on the mode of amending the constitution, 134; further remarks, 136; on the obligation of instructions, 139; on the constitutional requirement for a seat of Government, 159; reports an answer to the President's speech, 178; on the propriety of restraints to naturalization, 186; further remarks, 188; offers resolutions on public credit, 190; benefits of a funded debt, 191; fund or pay, 200; opposes reception of the Quaker memorial, 203; unnecessary to commit Pennsylvania memorial, 209; further remarks, 211, 230; discrimination of public creditors, 214; on answer to President's message, 257; further remarks, 257, 258; on a seat of Government, 248; offers resolution relative to eulogium of Dr. Franklin, 259; on vacancy in the Presidency, 267, 269; on the commitment of the bill for a Bank of the United States, 272; speech on the bank, 291; further, 296; is a resignation a constitutional vacancy? 329; on emblems on American coins, 371; on discharging the committee on defeat of St. Clair, 393; on reduction of the army, 400; reports a bill to regulate the claims of invalid pensions, 406; reports mode of examining votes for President, &c., 417; on reference to Committee of the Whole the resolutions relative to the official conduct of the Secretary of the Treasury, 418; on official conduct of the Secretary of the Treasury, 422; on the result of the votes on, 439; on the commerce of the United States, 464; on the propriety of sequestering the British debts, 485; in favor of continuing the embargo, 499, 502; urges duties on manufactured tobacco and refined sugar, 507, 509; on the delegate south of the Ohio, 529; on the President's speech, 534; on thanks to General Wayne, 542, 543; on damages by Pennsylvania insurgents, 547; on the renunciation of titles for citizenship, 563, 565; on reference of the letter of the Secretary of War, 567; on the reduction of salaries, 573; on the right to Indian lands within a State, 577; on the attempt at bribery by Robert Randall, 609; on the Randall bribery case, 614; on the resolution relative to bribery, 621; on the support of existing establishments, 625; on call for papers relative to British treaty, 640; on the rights of the House relative to treaties, 651; on the admission of Tennessee, 756; on the military and naval appropriation, 764, 765, 766. _Snuff_, duty fixed, 41. _Spirits_, all other, duty on, 113. SPRIGG, THOMAS, Representative from Maryland, 458, 566. _South Carolina_, vote for President, 10, 385. STANTON, JOSEPH, Jr., Senator from Rhode Island, 254, 309, 383. _State Department_, bill to establish, considered, 15; Secretary of, called before the Senate to give explanations, 16; practice now superseded, _note_, 16. _See_ _Executive Department_. _State, Secretary of_, mode of appointment, 86; how removed, debate on, 86. ST. CLAIR, GENERAL, defeat of, considered, 390; resolution requiring the attendance of the Secretary of the Treasury and the Secretary of War in the House, to furnish information needed for an investigation of the causes of St. Clair's defeat, 390; moved to strike out so much as requires the attendance of the Secretaries, 390; resolution improper--the Secretaries are not impeached, 391; importance of the information they can give, 391; the information had better be in writing, 391; the measure would introduce a bad precedent, 391; a thorough investigation, highly important, 391; this mode the best possible, 391; not necessary in the present state of the business, 391; the information must be had, 391; no advantage to arise from adopting the resolution, 391; now is not the proper time to call for information, 392; remarks on the report, 392; importance of the investigation, a million dollars involved, 392; peculiar position of the Secretaries, 392; both implicated in the failure of the expedition, 392; resolution lost, 393; motion to discharge the Committee of the Whole, 393; the only proper course is to consider the report, 393; report perfectly satisfactory, 393; what is the situation of those implicated in the failure? 394; no disposition to smother inquiry, 394; the House can get through the subject in a shorter time than a committee, 394; shall the House or a select committee establish the facts, 394; effects of finding some of the officers culpable by either, 394; uniform practice of the House to recommit, 394; Secretaries attended only once on the committee, and were anxious to leave, 395; in the case of the contested election the House reserved the right of establishing the facts, 395; other points considered, 395; recommitment agreed to, 395. _Steel, Unwrought_, duty on, proposed, 35; adopted, 36. STEELE, JOHN, Representative from North Carolina, 315, 388; on ratio of Representation, 322; on discharging committee in case of St. Clair, 395; on petition of Warner Mifflin on negro slavery, 397; on the reduction of the army, 398; further remarks, 403, 407, 411. STERRETT, SAMUEL, Representative from Maryland, 315, 410. _Stenographer to the House_, debate on, 629; object to find a person who would satisfy the House and the public, 630; other considerations urged, 631, 632. STONE, MICHAEL JENIFER, Representative from Maryland, 102, 175; on the compensation of the President, 117; further remarks on amount, 119; do. Vice President, 122; opposes discrimination in the pay of members of the two Houses, 126; on the mode of amending the constitution, 135; further remarks, 135; opposes the amendment of constitution relative to the right of instruction, 141; on the location of a seat of Government, 152; do. on Harrisburg as a seat, 153; further remarks, 166; on the powers of Congress and rights of the States respecting naturalized citizens, 188; thinks interference with the importation of African slaves will tend to depreciate their value, 202; on discrimination among the public creditors, 221; on memorial of officers of navy, 240; on a seat of Government, 243; on price of public lands, 261; further remarks, 262; on excise bill, 263; further remarks, 267, 271; speech on the Bank of the United States, 292. _St. Paul's Chapel_, service at, upon the inauguration of Washington, 12. STRONG, CALEB, Senator from Massachusetts, 9, 168, 309, 380, 445, 523, 591; on committee on rules of first Congress, 10; on manner of electing chaplains, 10; on rules of business, 10; appointed on Judiciary Committee, first Congress, 19; on committee to wait on Vice President, 11; on the resolution relative to the presentation of the French flag, 598. STURGES, JONATHAN, Representative from Connecticut, 21, 175, 255, 315, 388. _Sugars_, duty on, 33. SUMTER, THOMAS, Representative from North Carolina, 175, 320, 388; on the location of a seat of Government, 151; opposition to bill organizing State Department, 108; on the petition of Catharine Greene, 338, 341. SWANWICK, JOHN, Representative from Pennsylvania, 604; on establishing Indian trading houses, 625, 634; on a stenographer for the House, 629, 631; on rights of the House relative to treaties, 642; on the execution of the British treaty, 707; on the sense of the House relative to the British treaty, 751. SWIFT, ZEPHANIAH, Representative from Connecticut, 457, 527, 604; on conducting the Algerine war, 478; on the legality of sequestering the British debts, 491; on the constitutionality of admitting a territorial delegate, 528, 530; on indemnification to sufferers by Pennsylvania insurgents, 547, 548, 552; on establishing Indian trading houses, 624; on the pay of the Speaker, 638, 639; on the resolutions relative to the refusal of the President to furnish papers on the British treaty, 701. SYLVESTER, PETER, Representative from New York, 43, 175, 255, 315, 389; on oaths of State officers, 52; favors limitation of impost bill, 83; on the impeachment clause of the constitution, 88; on Pennsylvania memorial, 209. T TALBOT, SILAS, Representative from New York, 455. _Tanners of Newark, N. J._, petition of, 360; referred to committee, 364; do. of New York, 370. TATOM, ABSALOM, Representative from North Carolina, 604. TAYLOR, JOHN, Senator from Virginia, 445; do. resigned, 524. TAZEWELL, HENRY, Senator from Virginia, 524, 594; on answer to President's speech, 596; on resolutions relative to presentation of French flag, 600. _Teas_, duty on, considered, 32; proposed duty on, 41; debated, 41; duty fixed, 42. TELFAIR, EDWARD, votes for, as Vice President, in 1789, 10. _Tennessee_, bill for laying out, before the Senate, 601. _Tennessee, Admission of_, report relative to territory south of the Ohio River considered, 754; the people inhabiting any territory of the United States, cannot of their mere will and pleasure, and without the consent of Congress, erect themselves into a separate and independent State, 754; a law might be passed now to provide for it, 754; no reason for objecting to receive those people as a State, 755; the State Government is already organized and in operation, 755; statement of proceeding in Tennessee, 755; under the ordinance they had a clear right to be admitted, for they had the population required, 755; one State preferable to two, 755; the Government is Republican, and the population adequate to admit the State at once, 756; course of proceeding which should have been taken, 756; terms of the compact considered, 757; constructions of the compact, 758; right claimed for the people, 759; resolution reported by committee adopted, 759; moved that some law should be passed by Congress recognizing the territory as a State before they were admitted into the Union--negatived, 759. _Territories._--_See Delegate from Territories._ THATCHER, GEORGE, Representative from Massachusetts, 21, 175, 255, 315, 388, 455, 527, 604; on duty on molasses, 29; do. on salt beef, 34; on the flag of the Union, 461; on the Randall bribery case, 615. THOMAS, RICHARD, Representative from Pennsylvania, 604. THOMPSON, CHARLES, appointed by the Senate to notify Washington of his election, 10; writes to the Senate respecting his notification of Washington, 11. THOMPSON, MARK, Representative from New Jersey, 604. _Title of President and Vice President_, 11; House committee thereon, 12; report of same made, 12; message from the House thereon, 13; committee of conference appointed by Senate, 13; consideration of original report postponed, 14; disagreement of committee of conference, 14; resolution of the Senate respecting the same, 14; report of House committee thereon, 47; message from Senate on, 58; message from Senate--debate thereon, 65; debate on resolution against a committee of conference with the Senate on titles of President and Vice President, 65; constitution prescribes the power of the House respecting titles, 66; a committee of conference should not be appointed because it is a subject which the House has no right to consider, 66; the House agreed no title should be conferred, and a joint committee so reported, but the Senate resolved upon a title, and ask our concurrence, 66; excite alarm among those who fear that the constitution is hostile to popular liberty, 66; to countenance such a measure would be an indignity to the House, 66; conference unnecessary, 67; a respect due to the Senate, 67; titles harmless, 67; add no power, 67; they diminish the true dignity and importance of a Republic, 67; a committee of conference very proper, 67; a committee unnecessary, 67; umbrage should not be given to the Senate, 67; no purpose secured by a committee, 67; subject better be dropped, 68; the proposition of a title is trifling with the dignity of the Government, 68; a committee of conference could be appointed without seeming to countenance the measure, 68; after having adopted the report of the committee it would derogate from their dignity to rescind a unanimous resolution, 68; committee appointed, 69. _Tobacco_, manufactured, duty fixed, 41. _Tonnage Duties_, proposed, 23; debate thereon, 48, 53; fixed, 57; method of discussing the subject, _note_, 57. _See_ _Duties_ on Tonnage. TRACY, URIAH, Representative from Connecticut, 455, 527, 604; on duties on tobacco and sugar, 510; on the President's speech, 533; on exclusion of titled foreigners from citizenship, 558, 564; on reference of letter of Secretary of War, 569; on the rights of the House relative to treaties, 672. _Treasury Department._--_See Executive Departments._ _Treasury, Report of Secretary of._--Motion that the Secretary of the Treasury's report be in writing, 177; if he reports in person he can answer inquiries, 177; propriety doubted, 177; if the report is written it will be better understood, 177; the importance and extent of the subject is such it should be in writing, 177; motion carried, 177; report under consideration, 182; postponement moved, 182; it embraces two important objects: first, that all idea of discrimination among the public creditors as original holders and transferees, ought to be done away; second, the assumption of the State debts by the General Government, 182; the States should be consulted, 182; a considerable postponement required, 182; speculation is rife--if postponed too long fluctuations will be still greater, 182; postponed until North Carolina enters the Union, 183; Congress possess all the information necessary to act on the measure, 183; speculation has existed since the securities were first issued, 183; the subject of the State debts should not be decided until the sense of the Legislatures is known, 183; the postponement should be long enough to enable members to enter on the task with understanding, and the spirit of speculation should be counteracted at the earliest practicable period, 183; impossible to suppress speculation, 183; the policy of speculation, 184; the speculation arisen since the report was denounced, 184; objects of the report submitted in the form of independent resolutions, 190; assumption of State debts considered, 191; doubtful if a permanent funded debt is beneficial or not, 191; history of funded debts, 191; a precedent that will bring ruin, 191; debts of the States unknown, 192; the funding will occasion enormous taxes for interest, 192; all that can be done is to provide funds for the gradual extinction, 192; funding a small debt is beneficial, 192; we have a debt already and some funds must be appropriated for payment of interest, 192; the foreign and domestic debt carry very material distinctions, 193; the domestic securities should be considered in a depreciated state, 193; an equivalent was not received for them in hard cash like the foreign debt, 193; domestic debt should be liquidated at its real value, 193; terms proposed by the Secretary, 193; the Government is in a very different situation with respect to foreign and domestic creditors, 194; we are not judges of the claims of our creditors, but parties to the contract, 194; if we are parties, what would be the decision before a court of justice, 194; the French loans, 195; no distinction between foreign and domestic creditors, 195; the face of the paper is our guide, the demand is not to be lessened, 195; if it is intended to reduce either, the principles on which such a measure is founded should be considered, 195; nature of the public contract, 196; the same argument might be applied to paying the Continental debts at their nominal value, 196; the present Government should pay the debts of the United States, but as the domestic part has been contracted in depreciated notes, less than six per cent. interest should be paid on it, 196; if the Government is one party and the individual the other, who is the judge? 197; can two parties exist in a well organized government to dispute about property and have no judge? 197; is not the want of consideration a good plea? 197; we stand in the same condition as the late Congress, who are admitted to be parties, 197; the Government should be at liberty to ascertain the amount of the debts assumed as the motion contemplates, 197; discrimination and liquidation the two great points involved, 198; manner in which the debt was contracted, 198; if the certificates, at the time they were issued, were taken for only a small part of their face, they should not now be raised to the full amount, 198; debts of the United States of four kinds, 199; their character, 199; the subject should be decided at this time, 199; a discrimination of some kind necessary, 200; three classes of creditors, 200; the obligations of each considered, 200. _To discriminate_ between original creditors and present holders, &c., moved, 205; extent and form in which the debt exists, 205; the United States owes the value they have received, and which they acknowledge, 205; to whom is payment really due? 205; four classes of creditors, 205; the principles that govern the decision of their respective pretensions considered, 205, 206; motion to amend original proposition, 207; the debt is still due, and if the owner has transferred it shall we disown his act? 207; the nature of contracts, 211; their transferability, 212; the property of the certificates is now vested in the transferees, 212; if they are now divested by Government, it is an _ex post facto_ law, 212; the proposed discrimination, 212; effects of, 213; this doctrine repugnant to the interests and prosperity of the Union, 213; the States are restrained from passing laws violating contracts, 213; public justice requires a performance of contracts, 213; the new paper given might be subject to another liquidation on the same principle, 214; the proposition is unjust, impolitic, and impracticable, 214; strict justice the plain line of conduct, 215; other objections, 215; the debt is the price of our liberties, and cannot be diminished a farthing, but the measure proposed does diminish it, 215; the obligation of the debt is not denied, the difficulty is how it shall be discharged, 216; the justice of discrimination, 216; the army repudiate discrimination, 217; no Legislature should interfere with a contract--but it does not appear that the transaction between the original holders and the purchasers of certificates was a fair one, 217; other points in favor of the measure, 218; justice or legality of the measure--its practicability or policy and consequences, 219; the claim of the soldier just, 219; state of public opinion, 220; seven-eighths of the debt has not been disposed of from necessity, 220; inequitability of the measure not shown, 221; how far will this measure operate as a precedent? 221; a review of the grounds upon which the proposition has been combated, 223; the United States cannot pay in full original creditors or assignees, what course is just and expedient? 226; all parties understood there would be no discrimination in certificates transferable, 227; other objections examined, 227; the ability of the Government and the claims of assignees, 228; motion lost, 228; _note_, 228, 250. _Official Conduct of the Secretary of the Treasury_, considered, 418; moved that nine resolutions on the subject be referred to the Committee of the Whole, 418; discussion of them unnecessary and unwarranted, 418; much time be wasted on them, 419; objections to the first resolution, 419; do. second do., 419; do. third do. 419; the last one objectionable, for the preceding ones determine the guilt and the last directs the President to remove the Secretary, 419; too short time remaining to consider the resolutions, 420; the abstract propositions should be decided first, the others are unwarranted by facts, 420; most unheard of course against a party accused, 420; no opportunity offered for defence, 420; the first resolution of great importance, 420; the Secretary differs from others in his opinion respecting his powers and the constitutional obligation respecting the acts of appropriation, 420; shall the Secretary be bound by our acts of appropriation or not? 421; the first resolution is no part of the others, but should be determined, 421; all referred excepting the first, second, and ninth resolutions, 421; the third resolution, charging that the Secretary had violated the law by applying a certain portion of the principal borrowed to the payment of interest falling due on the principal, which was not authorized, and by drawing part of the same moneys into the United States without the instructions of the President, considered, 421; what regards the right of drawing money into the country, 421; the case examined 422; the charges of mismanagement so long before the public have now assumed shape, 422; change in the tone of the charges since the session commenced, 422; no self-interested pecuniary considerations imputed to the Secretary, 423; the charge consists of two items, 423; each examined in detail, 423. No greatness of character known in the Executive Departments, 424; was the money appropriated to special and distinct purposes, and did the Secretary apply the money to other uses than the law directed? 424; both points considered, 424; if a responsible officer has violated the laws he should be called to account, 425; the testimony compared with the facts, 425; can any necessity be shown for deviations from positive law? 426; attempt to show that the Legislature were not ignorant of the drafts of the Secretary, 426; money borrowed in Europe was economically applied to paying interest there, 426; the inquiry is, whether a debt was paid out of this or that fund, 426; the whole business reviewed, 426; even if the Secretary made the drafts without the instructions of the President, it is not probably reprehensible, 426; the act was not a financial operation to avoid the necessity of drawing and remitting, 427; the interest was not paid out of the principal of the loan, 427; the President is the principal and the Secretary the agent, 427; impossible to account for the conduct of the Secretary, 427; to judge of his conduct we must consider his duties, and whether a necessity existed to justify his drawing, 427; if the Secretary has paid what was due, what, then, is the complaint, 428; no law has been violated, nor any rule of propriety departed from, 428; the drafts were made agreeably to the instructions of the President, 429; did the authority from the President and his subsequent instructions authorize the Secretary to consolidate the loans? if so, he acted legally, 429; both charges examined, 430; the reports of the committee, 481; the questions now are questions of fact, 431; these facts are too clearly supported by the reports of the Secretary and accompanying documents to be denied or controverted, 431; this position investigated, 431; can the Executive, without special permission, apply the excess of one fund to the deficiency of another? 433; the drawing money without the instructions of the President established by the documents, 433; both points rest on the most solid proofs, 434; on the necessity of sometimes departing from the strictness of legal appropriations, 434; the authority of the Secretary in the special case of loans must be derived from the President, 435; the recent drafts, 435. No proof to support the charges, 436; if there had been, there is nothing criminal in them, 436; insufficient reports of the Secretary, 437; third resolution disagreed to, 438; fourth resolution disagreed to, 438; fifth resolution disagreed to, 438; sixth resolution disagreed to, 438; seventh resolution disagreed to, 439; eighth resolution disagreed to, 439; after such a large vote the Secretary cannot be criminated, 439; review of the arguments against the Secretary, 439. _Treaty with Great Britain._--Ratification of, 525; _note_, 525, 639; resolution calling for papers relative to the treaty with Great Britain, 640; reasons for calling for the papers, 640; opposed for want of a declared object within cognizance of the House, and because it was the groundwork of the dangerous doctrine that the House had a right to adjudge, adopt, or to reject treaties generally, 640; no other source of information, 640; constitutional questions likely to arise in course of debate, 640; does the general power of making treaties supersede the powers of the House and leave it only an executive and ministerial instrumental agency? 641; no propriety in the resolution, and no question of the constitutionality of the treaty, 641; House has a right to inquire into the conduct of the officers concerned, 641; preceding arguments reviewed, 641; is the power of the President and Senate as to treaties complete? 641; power of control of English House of Commons, 642; true meaning of the power of appropriation in the constitution, 642; a discretion exists in the House, 642; legislative power completely vested in Congress--to pass laws discretion is implied--the House must judge when it is required to act, 642; words of the constitution respecting treaties, 643; papers unnecessary, and to call for them is an unconstitutional and improper interference with the Executive Department, 643; the House has a _right_ to ask for the papers, because their co-operation and sanction was necessary to carry the treaty into effect--because they had full discretion to give or refuse that co-operation, and must be guided in the exercise of that discretion by the merits and expediency of the treaty, 644; what treaties unconstitutional, 644; consequences of the treaty power being unlimited and undefined, 645; House has a check on treaty-making power, 645; authorities referred to, 645; propriety of the resolution, 647; what powers has the constitution given, and to what departments have they been distributed? 647; view of legislative and treaty-making powers, 648; how is the will of the people expressed in the constitution to be understood? 648; different constructions of the constitution, 649; extent of the treaty-making power in relation to the objects specially and expressly submitted to the legislative power of Congress, 650; treaty power solely delegated to the President and Senate, 651; practice of Congress, 652; there are cases in which the House has not the right of withholding appropriations, 652; is there any provision in the constitution by which the House can check the treaty-making power, or question the merits of treaties under any circumstances? 653; review of arguments, 654; must resort to the constitution to know the extent and limits of our power, 657; arguments against the exclusive treaty-making power considered, 658; this doctrine is inconsistent with the constitution and the law of nations, 659; the state of the question, 660; words of the constitution, 660; have we a right to exercise our judgment on the treaty? is the question, 661; depends on a rational construction of the fundamental principles of government, as drawn from the histories of nations, 661; construction of the constitution, 662; the treaty is now the law of the land, and no act of Congress is or can be necessary to make it so, 662; no right to require papers where there is no obligation to obey, 664; different kinds of treaties, 664; power given to Congress to regulate commerce considered, 665; if these sentiments prevail, the small States would be deprived of one of their most essential rights, 666; when treaties contain stipulations bearing a relation to the specific power vested in the Legislature, the House has a right to take cognizance of it, as it is proved by three considerations, 666; these examined, 667; the express words of the constitution will not support either position without a liberty of construction--what construction is most agreeable to the general principles of the constitution? 668; exposition of the constitution and the position of the opposition, 660; the right to call for papers sanctioned by the uniform practice of the House, 670; practice in cases of former treaties, 671; _note_, 671; view of the constitutional rights of the House, 671; these rights considered in two points of view, 672; case of the proclamation of neutrality, 674; the construction of the constitution advanced, 674; explanation of the original resolution, 675; does the treaty operate by way of obligation? 676; is it paramount to a law, and can it repeal law, although itself cannot be acted upon by the legislative power? 677; this question considered, 677; objections to the power of the House considered, 678; precedents examined relative to a call for papers, 681; objections urged by the advocates of the power of the House considered, 682, 683; authority of the United States examined, 685; the House cannot legislate without information, 686; what does the constitution say? 686; if the doctrines now urged prevail, they will make inroads on the constitution, 687; the propriety of calling for papers if the Legislature have no part in making treaties, 687; points of the subjects reviewed, 688; duty to look into every treaty, 690; what was the constitution of the United States? 690; resolution as offered, 692; passed, 692; note, 692. _Message of the President declining_ to send papers, 693; _note_, 693; debate on reference of the answer, 694, 695; answer referred to Committee of the Whole, 696; resolutions introduced relative to the class of treaties over which the House claims a right of judgment, and limits it to those which involve a matter which has been specially granted to Congress, 696; important occasion when two of the constituted authorities of the Government interpret differently the extent of their respective powers? 696; message considered, 697; it related to two points, the application for the papers and the constitutional rights of Congress and of the House of Representatives on the subject of treaties, 697; these points examined, 698, 699, 700, 701; resolutions adopted, 702; _note_, 702. _Execution of the Treaty_, considered, 702; resolution to carry it into effect, 702; the proposition must be determined by the fact of whether the treaty was a good one, or whether there were extraneous reasons for putting it in force, 703; the merits of the treaty considered as it relates to the execution of the treaty of 1783, as it determines the several points in the law of nations, and as it respects the commerce between the two nations, 703, 704, 705; extraneous circumstances--the treaty continues two years--consequences of not carrying it into effect, 706; principles of the treaty considered, 707; merits of the treaty, 707; admission to British ports, 707; article respecting British debts, 707; sequestration of debts, 707; articles of a temporary nature considered, 709; Burke on the commerce of the American colonies, 710; points which pressed themselves on the negotiation and demanded provision, 711, 712; the contents of the treaty examined, 714, 715, 716, 717; the commercial part of the treaty examined, 718; want of reciprocity in the instrument, 720; view of the origin of the treaty--party dissensions which then prevailed, 720; critical posture of our affairs, &c., considered, 720, 721; objected against the treaty that a claim for negroes and other property taken at New York had been overlooked, 722; has not the ownership of the property changed under the law of nations? 722; correspondence of the commissioners, 723, 724; consequences if the treaty is rejected, 725; treaty is unconstitutional and pernicious, 726; if the treaty is executed we admit the ground taken by the Executive, 728; merits of the treaty, 729; prejudice against the treaty in the public mind, 729; the permanent and the temporary part of the treaty considered, 730; the only question is, whether they would or would not appropriate money to carry the treaty into effect, 730; objections to the treaty considered, 731; the negotiation was advisable, and the only means of avoiding war, 734; consequences of rejecting the treaty, 734; three objects embraced in the treaty, 735; on the expediency of carrying the treaty into effect, 736, 737; free bottoms make free goods, 737; effects of rejecting the treaty, 738, 739; treaty of 1783, 741; threats of war if treaty rejected, 742; constitutional rights of the House to be looked at with candor, 744; will we observe the treaty or break it? is the only question, 745; consequences of its rejection, 746, 747; the good and prosperity of the people should be the primary object, 748; notwithstanding the objections to the treaty the appropriations ought to be granted, 749; resolution carried in committee by vote of the Chairman, 750. Resolution offered in the House expressive of its opinion of the treaty, 751; debate on its propriety, 751; amendment lost--resolutions for executing the treaty passed, 753; _note_, 754. TREDWELL, THOMAS, Representative from New York, 315, 388, 457, 528. TRUMBULL, JONATHAN, Representative from Connecticut, 21, 175, 255, 315, 388, 455, 527; on a committee to report a bill regulating oaths, 22; elected Speaker, 315; speech on taking the chair, 315; moves an amendment to the bill on the slave trade, 480; Senator from Connecticut, 591. TUCKER, THOMAS TUDOR, Representative from South Carolina, 21, 175, 255, 315, 388; takes part in the debates on laying duties on imports, 25; opposes duty on salt beef, 34; do. on candles, 34; on duty on unwrought steel, 35; opposes duty on nails, 38; opposes duty on salt as unequal, 39; on high duties, 44; favors low tonnage duties, 56; advocates moderate duties on imports, 57, 58; opposes the appointment of committee of conference in reference to title of President, 66; favors reduction of duty on molasses, if those on other articles are reduced, 69; repels insinuation of a bargain, 69; opposes the motion to lay a duty on African slaves, 74; gives reason for his vote on limitation of the impost bill, 83; on the Treasury Department, 109; on compensation of President, 117; further remarks on same, 119; on the difficulty of amending the constitution, 144; on the principles which should control the selection of a seat of Government, 147; further remarks, 152; on a short period of residence for naturalization, 185; further remarks, 187, 190; favors discrimination among the public creditors, 200; urges the dismission of the Quaker memorial, 205; on the commitment of the bill for a Bank of the United States, 273. TURNER, GEORGE, memorial of, 335. V VAN ALLEN, JOHN E., Representative from New York, 455, 527, 604. VAN CORTLANDT, PHILIP, Representative from New York, 455, 527, 604. VAN GAASBECK, PETER, Representative from New York, 458, 528. VAN RENSSELAER, JEREMIAH, Representative from New York, 58. VAN RENSSELAER, STEPHEN, Representative from New York, 175, 260. VARNUM, JOSEPH B., Representative from Massachusetts, 204; on the pay of the Speaker, 639. VENABLE, ABRAHAM, Representative from Virginia, 388, 455, 528, 604; on the attendance of the Secretary of War, 390, on the President's speech, 538; on the Pennsylvania insurgents, 552; on amending naturalization laws, 556; on the resolutions relative to intruders on Indian lands, 584, 586; on the military and naval appropriation, 764; on the sense of the House relative to the British treaty, 752. _Vermont_--Vote for President in 1793, 385. _Vessels._--Registering and clearing bills, on, 129. _Vice President_, ordered to sign the answer to Washington's inaugural, in behalf of the Senate, 13; takes the oath, 15; compensation of, 17, 120; fixed, 123; his term of office, when commenced, 171; letter to the Mayor of New York, 174; vote for in 1789, 10; do. in 1793, 385. VINING, JOHN, Representative from Delaware, 51, 175, 259, 315, 442, 520, 591; proposes the organization of a Home Department, 85; further remarks, 86; on the President's power to remove officers, 87; moves the organization of a Domestic Department, 94; on the President's power of removal, 104; on the compensation of members of Congress, &c., 116; further remarks, 119, 132; introduces a resolution for a Home Department, 127; remarks on, 127; further remarks, 128; on the form of amending the constitution, 134; on the location of a seat of Government, 150; on the banks of the Delaware for do., 161; on a seat of Government, 245; further remarks, 248; on interference of excise officers in elections, 271; on the commitment of a bill for a Bank of the United States, 274; speech on the bank, 305; on the ratio of representation, 326. _Virginia._--Vote for President in 1789, 10, 385; county lands, report on, 129. _Virginia Legislature._--Offers ten miles square to United States for a seat of Government, 76. _Vote_, on limiting the time for the operation of the impost bill, 84; on the President's power of removal, 90; on striking out Susquehanna and inserting Potomac for the seat of Government, 159; on motion for discrimination among public creditors, 228; _note_, on do. 288; on Quaker memorial, 238. _Votes, Electoral._--Counted in the presence of Senate and House in 1789, 10; do. 385. W WADSWORTH, JEREMIAH, Representative from Connecticut, 21, 175, 255, 315, 455, 555; appointed on committee to draft bill on tonnage duties, 57; urges reduction of duty on molasses, 70; on a Board of Treasury or Superintendent of Finance, 92; on the right of instructions, 144; on deliberation in fixing the seat of Government, 155; further remarks, 160; on discrimination among the public creditors, 220; on the post office bill, 332; on the petition of Catharine Greene, 339; on the reduction of the army, 401; further remarks, 407, 414; on the pay of soldiers, 460, 466; against the embargo laws, 499; urges increased duty on coal in foreign vessels, 506; on duties on manufactured tobacco and refined sugar, 509; on the advance of money to France, 514; on the rage against nobility, 561; on defence of the frontiers, 570; on the trial of intruders upon the Indians, 584; on the protection of settlers, 587. WADSWORTH, PELEG, Representative from Massachusetts, 456, 527, 609. WALKER, FRANCIS, Representative from Virginia, 455, 527. WALKER, JOHN, appointed Senator by Governor of Virginia, 251. WALTON, GEORGE, Senator from Georgia, 591. WARD, ARTEMAS, Representative from Massachusetts, 315, 388, 455, 527. _War Department.--See Executive Departments._ WASHINGTON, GEORGE, elected President in 1789, 10; votes for as President in 1789, 10; do. 1793, 385; proceedings at his inauguration, 12; do. inaugural address, 12; reply to the answer of the Senate to the inaugural address, 15; day of his inauguration, _Note_, 46; resolution for an equestrian statue, 330; birthday--motion to adjourn, 638; considered, 638; motion lost, 638. WATTS, JOHN, Representative from New York, 455, 527. WAYNE, ANTHONY, Representative from Georgia, 317; on the petition of Catharine Greene, 335; further remarks, 337. _Ways and Means_, proposition to appoint a committee, 128. _Western Lands.--See Public Lands_. WHEATON, JOSEPH, appointed sergeant-at-arms, 315. WHITE, ALEXANDER, Representative from Virginia, 21, 175, 255, 315, 388; on committee to report a bill regulating oaths, 22; advocates delay in fixing scale of duties on imports, 23; further remarks, 25; on duty on hemp, 37; opposes duty on salt, 41; report from Committee of Elections, 41; presents resolution of Virginia Legislature, offering ten miles square to United States for seat of Government, 76; thinks appropriation bills are limited by the constitution, 77; further remarks, 81; sustains the power of the President to remove certain officers, 88; on the power of the President to remove Secretary of State, 102; further remarks, 105; opposes discrimination in the pay of members of the two Houses, 124; on compensation of President, 119; further remarks, 120; on compensation of Vice President, 121; on a Home Department, 127; on amendments of the Senate to House bill on seat of Government, 165; on admission of reporters of the press, 180; on the constitutional power of Congress respecting naturalization, 186; on discrimination among the public creditors, 217; on report of committee on Quaker memorial, 229; on a seat of Government, 242; further remarks, 248; on vacancy in the Presidency, 267; on the meeting of the Electoral College, 333; moves to strike out of bill all relative to vacancy of President, 334; on the bill for the encouragement of the cod fisheries, 351. WHITE, Rev. Bishop, elected chaplain of the Senate, 380. WHITE, JAMES, delegate from territory south of Ohio River, 528. WHITNEY, CHARLES, arrested with Robert Randall, 611; examination of, 613. _Widows and Orphans_, a bill making compensation to certain, considered, 410. WILLIAMS, BENJAMIN, Representative from North Carolina, 455, 546; on a salary for members of Congress, 636; on post-roads, 637; on the rights of the House relative to treaties, 680; on the execution of the British treaty, 720; on the army establishment, 759. WILLIAMS, JOHN, Representative from New York, 604. WILLIAMSON, HUGH, Representative from North Carolina, 255, 315, 388; on answer to President's message, 257; further remarks, 257; on selection of land by settlers, 260; on vacancy in the Presidency, 267; on the commitment of the bill for a Bank of the United States, 273; on resignation of William Pinkney, 329; on the bill for the encouragement of the cod fisheries, 357; on the emblems on American coins, 371; on the resolution that the Secretary of the Treasury and at War attend the House, and report relative to defeat of St. Clair, 390; against attendance of Secretary of War, 392; on discharging committee on defeat of St. Clair, 394; on protection of American commerce, 395; on reduction of the army, 400; further remarks, 414. WILLIS, FRANCIS, Representative from Georgia, 315, 388. _Wines_, all other, discrimination opposed, 32; duty on, 32. WINGATE, PAINE, Senator from New Hampshire, 9, 168, 251, 309, 380. WINN, RICHARD, Representative from South Carolina, 457, 528, 614. WINSTON, JOSEPH, Representative from North Carolina, 457, 528. _Wool Cards_, duty on, 41; state of manufacture, 41. WYNKOOP, HENRY, Representative from Pennsylvania, 21, 175, 255. Y _Yeas and Nays_ on contested election of Wm. Smith, 99; on the bill organizing the State Department, 108; on embracing all the proposed amendments of the constitution in one report, 145; on fixing the seat of Government on the Potomac, 161; on Wilmington for the seat of Government, 161; on Potomac, Susquehanna, or Delaware, instead of east bank of Susquehanna, 162; Delaware instead of do., 162; banks instead of east bank, 162; on inserting, or Maryland, after "Pennsylvania," 162; on Wilmington, instead of "city of New York," 163; on "Philadelphia," instead of "New York," 163; on proviso of Mr. Gale, 163; on resolution for the appointment of Commissioners to fix the site for a seat of Government, 163; on the bill to establish a seat of Government, 164; on postponing consideration of amended bill relative to seat of Government, 166; on the proviso of Mr. Madison relative to a seat of Government, 167; in Senate on resolution relative to unfinished business, 171; in Senate, on bill for non-intercourse with Rhode Island, 172; on commitment of Pennsylvania memorial, 211; on Quaker memorial, 238; on motion to strike out "Potomac," and insert Delaware for seat of Government, 249; on motion to strike out "Potomac," and insert Germantown, 249; to strike out "Potomac," and insert Baltimore, 249; on the passage of the bill fixing a seat of Government, 249; on motion to strike out a clause of excise bill, 272; on its passage, 272; on the bill for a Bank of the United States, 308; on the resolution respecting ratio of representation, 328; on motion to amend by striking out second section of bill for the protection of the frontiers, 349; on the bill for the encouragement of the cod fisheries, &c., 369; on the resolutions relative to the courtesies of France, 370; on receding from the amendment relative to the stamp of American coins, 373; on the apportionment bill after it was vetoed, 374; on its subsequent passage, 377; on motion to strike out clause of the army reduction bill, 416; on agreement of the House in said motion, 416; on the passage of the bill relative to fugitives from justice, 417; on the third resolution relative to the official conduct of the Secretary of the Treasury, 438; on the fourth resolution, &c., 438; on the fifth resolution, &c., 438; on the sixth resolution, &c., 438; on the seventh resolution, 439; on the question relating to, &c., 440; on amendment of constitution in the Senate, excluding bank officers from Congress, 446; relative to the interest of the United States in the bank, 446; on Senate resolution relative to open doors, 448; on the eligibility of Albert Gallatin, 452; on postponing consideration of the commerce of the United States, 473; on the bill making preparations for the Algerine war, 482; on the resolutions of non-intercourse with Great Britain, 498; on continuing the embargo, 502; on the reference of the indemnity resolutions to the committee on sequestration of British debts, 505; on motion to reject the bill laying duties on tobacco and sugar, 511; on the bill to augment the army, 511; on amendment to raise a force for protection of south-west frontiers, 519; on striking out certain words in the answer to the President's speech, 540; on the indemnification of the sufferers by the Pennsylvania insurgents, 553; on the resolution relative to Indian lands in North Carolina, 582; on resolutions relative to intruders on Indian lands, 589; in Senate on agreeing to answer of President's speech, 596; in Senate on resolutions relative to French flag, 601; in Senate, relative to the admission of Tennessee, 602, 603; on the resolution relative to the treaty with Great Britain, 692; on the resolutions relative to the refusal of the President to furnish papers on the British treaty, 702; on the resolution expressive of the sense of the House on the British treaty, 753; on the resolution of the House relative to the execution of the British treaty, 753; _note_, 754; on the resolution that some law should be passed by Congress recognizing Tennessee as a State before its admission, 759; on the claim of Catharine Greene, 762. END OF VOL. I. FOOTNOTES: [1] Of this talent, Mr. Gales has lately given a most remarkable instance, in drawing out from notes which had remained as lost for near forty years, a most important speech of Mr. Randolph, delivered shortly before the late war with Great Britain, and in relation to the then condition of public affairs, both with Great Britain and the Emperor Napoleon the First. Mr. Gales had taken down the speech: the notes of it got into the bottom of a trunk, and lay there till a year ago, when Mr. Gales, searching high and low for matter for the Annals, chanced to find them; and immediately drew out the full speech with the freshness and vigor of a morning report of a previous day's debate. [2] In the first five years of the existence of the Federal Government, there was no publication of debates in the Senate, that body having sat with closed doors, in its legislative as well as in its executive capacity, until the 20th of February, 1794. Until that time there will be no Senate debates to be abridged; but the proceedings of the body were fully kept in journals, and selections from these proceedings will afford much curious and instructive information to the student of American political history, as showing the manner in which the founders of the government put it into operation, their views in relation to important points, and the changes which the constitution of the Senate has undergone. [3] A list of the Senators and Representatives who composed the First Congress is inserted at page 20. [4] his address being in the nature of an Inaugural, and confined to general recommendations, only the beginning and the ending, so characteristic of the father of his country, have been given. [5] These entries in relation to the Secretary of Foreign Affairs show the early method of communicating with the Secretaries, being called before the Senate to give explanations and bring papers--a method now superseded by reports. The early Senators lamented the change, believing the old way to be the best for getting the information that was wanted, and also the best security against the appointment of incompetent Secretaries. [6] Another instance of the early practice of the government. The President consults the Senate beforehand upon the negotiation of Indian treaties, and sends the Secretary at War in person to give the necessary explanations: this mode of consulting the Senate since so far departed from that that body has no knowledge of the treaty until sent in for ratification. [7] This message of President Washington is a strong instance of his deference for the Senate, thus giving up upon its objection the nomination of a citizen which he knew to be fit and meritorious. It was also a strong instance of the deference of the Senate to the Senators of the State interested in the nomination, Col. Fishbourn having been rejected simply because the Georgia Senators preferred another. [8] These proceedings of President Washington and the Senate, in fixing on the mode of communication between them when treaties were to be formed, or appointments to be made, was their interpretation of the clause in the constitution which requires the advice and consent of the Senate on such occasions. Their interpretation was (according to the obvious meaning of language) that the advice and consent should be obtained beforehand; and the practice was in conformity to that interpretation, as will be seen in the proceedings of the next day, when the President and Secretary at War attended the Senate, and the President gave in a statement of facts, which, in his opinion, rendered treaties with the Southern Indian tribes necessary, and asked the advice and consent of the Senate upon their formation. These proceedings will be read with interest by all who study the working of our government, and observe the changes which its practice has undergone. The change has been great in the mode of obtaining this advice and consent, and greatly to the prejudice of the free and independent action of the Senate in such cases. Instead of consultation and concurrence beforehand, as the words of the constitution imply, and as the practice under Washington required (even to the minute provisions of an Indian treaty), the most important, and even unusual and extraordinary treaties, and with foreign powers, have come to be negotiated (oftentimes) without even the knowledge of the Senate, concealed from it until concluded, and then laid before the body for ratification, as an administration measure--the ratification to be pressed under all the influences of an executive measure, and upon all the considerations of inconvenience and danger to attend the rejection of a measure executively concluded with a foreign power. Under such circumstances treaties are often ratified, and appointments often confirmed, under a moral duress of the Senate, the weight of the executive and the inconveniences of rejection leaving no chance for the free action of the body. President Polk revived the Washingtonian mode of consulting the Senate, in the formation of the Oregon Treaty in 1846, asking the advice of the Senate beforehand on the point of establishing the boundary line with Great Britain on the parallel of 49 degrees; whereof the secret as well as the public history may be seen in the "Thirty Years' View," under the proper year. The personal attendance of the President and Secretaries being found to be inconvenient, that part of the mode of communication was dispensed with in Washington's time. [9] The question in relation to North Carolina arose out of the circumstance that she had not then accepted the Federal Constitution, and was not at that time a member of the Union. [10] North Carolina was not represented in the _first_ Session of this Congress, not having at that time accepted the Constitution. [11] Rhode Island, for the same cause, did not appear till the _third_ Session. [12] Mr. Bland deceased during the second recess of Congress, and was succeeded at the third Session by William B. Giles. [13] See notes to list of Senators. [14] Ibid. [15] For a list of the Representatives in the first Congress, see p. 20. [16] For this list see the Senate Journal. [17] This scale of duties, thus offered by the Continental Congress of 1783, and agreed to by the States, after proposing small specific duties on a few enumerated articles, (wines, spirits, teas, coffee, cocoa, molasses, sugars and pepper,) proposed an _ad valorem_ duty of five per centum upon all other goods, computed on the value of the article at the time and place of importation. [18] In bringing forward the measure for imposing impost and tonnage duties, Mr. Madison proceeded in the approved parliamentary form, of first discussing and agreeing upon the provisions of the measure, and then appointing a committee to bring in a bill according to what had been agreed upon. Long experience had proved that to be the safest mode of legislation, giving full scope to the whole intelligence of the House, before the measure had taken a form which it might be difficult to alter, as is always the case when a committee brings in a detailed bill, (without previous instructions from the House,) and which, as an act of a committee, and as a matured plan, (though done by a few,) has an authority which resists alteration, and renders amendments, at the instance of a member, most difficult to obtain. This wise and safe practice, of settling the provisions of a bill beforehand, has been nearly abandoned by our Congress--to the great prejudice of beneficial legislation. [19] Not additional. The enumerated articles were not to be subject to the _ad valorem_ duty of five per centum. [20] The delegates from that State were gone to meet the Vice-President, who was expected in town this day. [21] The members of the two Houses of Congress began to assemble on the 4th day of March, but a quorum did not appear in the House of Representatives until the 1st of April, nor in the Senate until the 6th of that month. The organization of the two Houses necessarily preceded the inauguration of the President, which took place on the 30th of April. Some of the ceremonies observed on that occasion, and for some time afterwards, have since been discontinued: as, the proclamation for the long life of the President--his repairing to church to attend divine service, accompanied by the two Houses--his re-conducting to his own house by a committee of the two Houses--the answer to the inaugural address by each House. [22] In this measure of the tonnage duties the House, as in the case of the impost duties, (and in fact in all other cases in which a law was wanted,) first settled the provisions of the bill in discussing the propositions on which it was to be founded, and then directed a committee to bring in a bill accordingly: but the bill, when brought in, still open to debate and amendment. This was the safe mode of legislation, approved by long experience in the British Parliament, and still more commended by the evils which have grown out of its abandonment in our Congress. [23] The legislative and diplomatic history of the United States affords abundant evidence of the wisdom of the objection taken in this debate against the indefinite duration of public acts. To repeal such laws, or to terminate such treaties, is almost impossible. Besides the difficulty of getting the three legislative branches to agree at the same time upon the repeal, or the termination, an interest grows up under the measure which becomes identified with its existence, and works for its perpetuity; and when it has been continued for some years, and the temporary circumstances in which it originated have been forgotten, it becomes invested with the sanctity of age, and finds protection in the spirit which dreads change as innovation. Of this character, two acts of Congress, and two conventions with foreign powers, may be mentioned as samples of many in our history, to wit: 1. The Factory system of supplying the Indians with cheap goods through Government agents, established as a temporary experimental measure for three years, &c., under Washington, and which was soon found to be working badly both for the Indians and for the Government, and yet which could not be got rid of for thirty years! nor until after the whole capital had disappeared. 2. The salt tax, and the fishing bounties and allowances founded upon it, revived as a temporary war-tax during the late war with Great Britain in 1812, and now continued forty years after the war has been finished! successfully resisting all attempts at repeal, while burthening the people with an odious tax, and enabling the fishing interest to take some $300,000 annually (near five millions up to this time) out of the public treasury, most of it unduly. Of treaties may be considered as instances the convention with Great Britain for the joint occupation of the Columbia, where the stipulated right of each party to terminate it at pleasure upon a year's notice, could not be exercised for twenty years! and then, with alarms of war and great disturbance to the country. And also the convention of 1842, with the same power for keeping up each a squadron on the coast of Africa, (for the suppression of the slave trade,) for five years; and until either party should give notice for its abrogation. The five years have been out three times over! yet the notice cannot be given; and a temporary measure becomes permanent through an illusory limitation. [24] The preamble to this act, and the speeches in favor of it, have been greatly relied upon in support of a protective tariff, but without reason, as the speeches themselves, and the rate of duties established, fully show. Every speech showed revenue to be the object of every proposed duty--protection to domestic industry being an incident to result from the accomplishment of that object, and from such moderate duties as were then imposed--the _ad valorems_ being five per centum, 7-1/2 and 12-1/2; and only a single class going as high as fifteen per centum, and that class confined to an article of luxury, to wit: imported pleasure carriages. The specific duties were on the like moderate scale; yet these moderate duties, thus laid for revenue, gave all the protection which was then asked, and to the satisfaction of every part of the Union, and cannot be quoted as any argument for the protective system which so much disturbed the country. [25] This call to order, and enforcement of it, for so slight a deviation from the point in debate, is a striking illustration of the business habits of our early Congresses, and accounts for the reason (_inter alia_) why the debates of that early time were so pithy, pointed, sententious, instructive and beautiful. [26] It is presumable he alluded to Mr. GERRY, a member of a Committee of Congress, appointed to superintend the Treasury. [27] The questions of contested elections, generally depending upon personal and temporary circumstances, are usually omitted in this abridgment; but where they rise higher and reach the principles of Government, or connect themselves with the national history, then they become questions of general and permanent interest, adding to the stock of political knowledge; and as such are entitled to historical commemoration. Upon this view of such questions the debate on the contested election of William Smith, of South Carolina, is here given; and that on the contested election of Albert Gallatin, and some others, will be given hereafter. [28] This remark of Mr. MADISON shows the true reason for instituting the previous question, which was to prevent debate in cases in which there ought not to be any; cases in which it was necessary to guard the House against improper discussion. What a departure from that reason has since taken place in the House of Representatives! for the Senate has, thus far, been shielded from the introduction of that question and its consequent abuse. [29] It was afterwards renewed and carried, and in that form the amendments were made, twelve in number, and form additional articles to the constitution, leaving the text of that instrument unaltered, but controlled by the amendment where they differ, as in the twelfth amendment. [30] By taking the hour of 5 o'clock for the funeral, the adjournment of the two Houses, and the loss of a day was obviated, while becoming respect was shown to the memory of the deceased member. [31] Having found a personal attendance on such occasions inconvenient, President Washington adopted the form of a written message in asking the advice and consent of the Senate to the formation of the treaties which he judged to be necessary. Mr. Polk followed this form in consulting the Senate on the Oregon treaty of 1846. [32] The galleries were unusually crowded. [33] The committee reported in favor of a residence of two years, and with that provision the bill was passed. [34] Estimated at twenty-one millions of dollars, and distributed among the States thus: New Hampshire, $300,000 Massachusetts, 4,000,000 Rhode Island, 200,000 Connecticut, 1,600,000 New York, 1,200,000 New Jersey, 800,000 Pennsylvania, 2,200,000 Delaware, 200,000 Maryland, 800,000 Virginia, 3,200,000 North Carolina, 2,200,000 South Carolina, 4,000,000 Georgia, 300,000 ----------- $21,000,000 [35] The motion of Mr. Madison was lost, and with it the largest door was opened to the pillage of original creditors, the plunder of the public Treasury and the corruption of Congress which the history of any Government has ever seen. The immediate mischief was some thirty millions: it was only the beginning. Assignees of claims have since been the great suitors to Congress--purchasing for a trifle, and upon speculation--pursuing the recovery by indirect means--taking no denial--and gaining in the end what was scouted at the start. It has given rise to a new profession--a new industrial pursuit, still more industrious by night than by day--hunting up claims, pressing them upon Congress; and by organization, skill, perseverance, appliances, and seductions carrying through the most unfounded demands. By the common law a _chose in action_ (an executory contract) was not assignable; and the whole experience of our Government from the assumption of the State debts, and funding of the revolutionary certificates in 1790 down to the present day, shows that the interest of the original creditor, the safety of the Treasury, and the purity of Congress require this wise common law principle to be applied to all claims upon the Government. [36] These proceedings put an end to abolition petitions in Congress. The Society of which Dr. Franklin was president was purely philanthropic in its character, and having got the answer to their petition, "that Congress had no right to interfere in the emancipation of slaves, or their treatment in any of the States," acquiesced in the decision and did not repeat their application. [37] This measure became combined with the Assumption Bill. Each had failed by small majorities: both were afterwards passed. There was a strong sectional party for each, but not a majority. The Eastern and Middle States were for the assumption--the Southern States against it: these latter were for the Potomac for the seat of Government--the former for the Susquehannah. The discontent was extreme on each side at losing its favorite measure. At last the two measures were combined. Two members from the Potomac who had voted against the assumption, agreed to change their votes: a few from the Eastern and Middle States who had voted against the Potomac, agreed to change in its favor; and so the two measures were passed. Mr. Jefferson gives this account of it, omitting his strictures: "This measure (the assumption) produced the most bitter and angry contest ever known in Congress, before or since the union of the States. I arrived in the midst of it: but a stranger to the ground, a stranger to the actors in it, so long absent as to have lost all familiarity with the subject, and as yet unaware of its object, I took no concern in it. The great and trying question, however, was lost in the House of Representatives. So high were the feuds excited on this subject that, on its rejection, business was suspended. Congress met and adjourned from day to day without doing any thing, the parties being too much out of temper to do business together. The Eastern members threatened secession and dissolution. Hamilton was in despair. As I was going to the President's one day, I met him in the street. He walked me backwards and forwards before the President's door for half an hour. He painted pathetically the temper into which the Legislature had been wrought--the disgust of those who were called the creditor States--the danger of the secession of their members, and of the separation of the States. He observed that the members of the administration ought to act in concert--that though this question was not of my department, yet a common duty should make it a common concern--that the President was the centre on which all administrative questions ultimately rested, and that all of us should rally around him, and support, with joint efforts, measures approved by him; and that the question having been lost by a small majority only, it was probable that an appeal from me to the judgment and discretion of some of my friends, might effect change in the vote, and the machine of government, now suspended, might be again set in motion. I told him that I was really a stranger to the whole subject; that not having yet informed myself of the system of finances adopted, I knew not how far this was a necessary sequence; that undoubtedly, if its rejection endangered a dissolution of our Union at this incipient stage, I should deem that the most unfortunate of all consequences, to avert which all partial and temporary evils should be yielded. I proposed to him, however, to dine with me the next day, and I would invite another friend or two, bring them into conference together, and I thought it impossible that reasonable men, consulting together coolly, could fail, by some mutual sacrifices of opinion, to form a compromise which would save the Union. The discussion took place. I could take no part in it but an exhortatory one, because I was a stranger to the circumstances which should govern it. But it was finally agreed, that whatever importance had been attached to the rejection of this proposition, the preservation of the Union, and of concord among the States, was more important, and that therefore it would be better that the vote of rejection should be rescinded--to effect which some members should change their votes. But it was observed that this pill would be peculiarly bitter to the Southern States, and that some concomitant measure should be adopted to sweeten it a little to them. There had before been propositions to fix the seat of Government either at Philadelphia, or at Georgetown on the Potomac; and it was thought that by giving it to Philadelphia for ten years, and to Georgetown permanently afterwards, this might, as an anodyne, calm in some degree the ferment which might be excited by the other measure alone: so two of the Potomac members (White and Lee, but the former with a revulsion of stomach almost convulsive) agreed to change their votes; and Hamilton undertook to carry the other point." [38] Could the extent to which the evil has since been carried, have been foreseen at the time, the state of the vote might have been very different. [39] Topics of temporary interest omitted. [40] At this commencement of the second Congress, being in the third year of Washington's administration, and when the finances had been brought to order and system by General Hamilton, and the machinery of government put into fair and full operation, a proper point presents itself to look at the expenses of the new Government, both as a fact at the time, and as a point of comparison in the future. In the annual speech which the President delivered to the two Houses, he congratulated Congress on the adequacy of the revenues which had been provided, and on the prospect that no new burthens would be required to be laid upon the people. This was a gratifying announcement, and makes it desirable to see what was the revenue at that time, and to what objects applied. The first inquiry is answered by a recurrence to the two tariff acts which had been passed--one at the first, the other at the second session of the first Congress. The first act had produced near two millions of dollars, which, though five times beyond what was necessary for the support of the Government, was not sufficient for the demands of the public debt and the Indian war raging in the North-west. An augmentation of the duties became necessary, and was accomplished in the second act, but still on a scale of moderation. The _ad valorems_ were 5 per centum, 7-1/2, 10, 12-1/2, 15; but in counting their product, only the two first may be considered, as the mass of the importations fell under those rates; to wit, above 16 millions under the two first, and less than one million under the three last; so that the 5 and the 7-1/2 _ad valorems_ may be considered as the effective duties, and the actual levy upon the imports. The list of specific duties was enlarged in the second bill, (the Secretary of the Treasury wisely saying that the experience of the world showed that duties upon quantities, ascertainable by weight and measure, were the only ones capable of safe and cheap collection, and therefore to be preferred as far as possible.) and their rate increased, but still in moderate proportion. The produce of the whole was about 3-1/2 millions, which was nearly nine times as much as the support of the Government required, leaving nearly eight parts out of nine to go to the public debt, the Indian war, and other extraordinary objects. This important statement requires to be verified, which is done by referring to General Hamilton's estimate of appropriations at the commencement of this first session of the second Congress; to wit, CIVIL LIST, comprehending compensation to the President and Vice President--the Departments of State, Treasury and War--the Board of Commissioners--the government of the North-western Territory--the Judiciary--the two Houses of Congress--contingencies incident to the civil list: in all $328,653.00; to which was afterwards added $87,000 for diplomatic intercourse, increasing the amount of the annual estimate to $415,000. The public debt, the Indian war, and other extraordinaries took all the rest, amounting to about three millions; so that this small revenue, produced by such moderate duties upon the small importation of that day, sufficed for the support of the Government, for carrying on an Indian war as far off, (the distance measured by time and cost of march and transportation,) and with Indians far more formidable than any now in the world; and also for the interest of the public debt. This is a result for statesmen to consider, and to bring into comparison with the present state of things; and the reflection may be, that with the same spirit of economy which, then prevailed, the same knowledge of the objects for which the Federal Government was created, and the same determination to confine its action to those objects, the same moderate rate of duties on the large importations of this day would be entirely sufficient, both for the support of the Government and for all extraordinary objects. The cost of collecting the revenue in that early period also presents a point for retrospect and comparison; it was then about 3 and 1/3 per cent., and according to the principle of such collections, should become less in proportion to the larger amount collected. On the contrary, the increase has been inordinate! and is, perhaps, now hardly ascertainable, but cutting deep into the national income. [41] The case of Pennsylvania goes far to sustain this view. The policy of William Penn was that of justice and humanity to the Indians, and his colony was long exempt from its calamity of savage hostility. It had been settled seventy years--from 1680 to 1753--before an Indian killed one of its inhabitants, and then in consequence of a disturbance in a neighboring province. Such an exemption, for so long a time, and while all the other colonies were involved in Indian wars from their early settlement, while so honorable to Penn's government and to the inoffensive manners of the inhabitants, goes far to show that the Indians were manageable by good treatment, and that, although savage, their savageism was not of a kind to resist the effects of justice and kindness. [42] This speech, of Cornplanter, the famous chief of the Seneca tribe, (one of the Six Nations,) does not appear in the debates, having been confidentially read to the House; but it is found in the State papers of the time, and is, as the allusions to it implied, a plea in behalf of the Indians against the wrongs of the whites. Intrusion upon their lands, fraudulent purchases, and killing unoffending Indians, are the subjects of complaint. The speech opens with a characteristic appeal to Washington. "Father: The voice of the Seneca nation speaks to you, the great councillor in whose heart the wise men of all the Thirteen Fires (Thirteen United States) have placed their wisdom. It may be very small in your ears, and we therefore entreat you to hearken with attention: for we are about to speak of things which are to us very great. When your army entered the country of the Six Nations, we called you the town destroyer; and to this day, when that name is heard, our women look behind them and turn pale, and our children cling close to the necks of their mothers. Our councillors and warriors are men, and cannot be afraid; but their hearts are grieved with the fears of our women and children, and desire it to be buried so deep as to be heard no more. When you gave us peace, we called you Father, because you promised to secure us in the possession of our lands. Do this, and, so long as the lands shall remain, that beloved name will live in the heart of every Seneca." Then followed a complaint for wrongs done them in their lands; to which Washington replied that that wrong was done before the new Government was established and the management of Indian affairs given up to it; but that they would now be protected. This reply fell short of his expectations, and the Cornplanter rejoined: "Father: Your speech written on the great paper, is to us like the first light of the morning to a sick man, whose pulse beats too strongly in his temples, and prevents him from sleep. He sees it and rejoices, but is not cured." Of killing and robbing their people he said: "Three men and one woman have been killed at Big Beaver Creek, and they were good people, and some of the white people will testify this. Twenty-seven men came from another State, and murdered these men in the Quaker State where they had come to trade, and took away all the horses, and all the goods they had purchased from the traders." The President answers to this complaint that he is very angry to hear of this murder and robbery--that he will have it inquired into, and will comfort the friends and relations of the persons who were killed, and make them compensation for the horses and property taken; and do all in his power to bring the murderers to justice, and that he will consider the crime as bad, exactly, as if committed against so many white people, and will use the same endeavors to bring them to punishment. Satisfied with the assurances which the President gave them, the Cornplanter, and the other chiefs with him, took a formal and affectionate leave in writing; in which they say: "Father: No Seneca ever goes from the fire of his friend until he has said to him 'I am going.' We therefore now tell you, that we are setting out for our own country. Father: We thank you from our hearts, that we now know there is a country we may call our own, and on which we may lie down in peace. We see that there will be peace between your children and our children, and our hearts are very glad." On arriving at Pittsburg on their way home, for these interviews with Washington took place in Philadelphia, these children of the forest with a native sentiment of graceful politeness, wrote back to him to let him know how they were getting along, the whole expressed in two brief sentences. "Through the whole Quaker State, as we came up the road, we were treated well, and they took good care of us until we came here. One misfortune happened only, that one of our wagons is not yet arrived here, the one we first engaged, and with the goods you presented to us." They always speak affectionately of the Quaker State, and in one of the speeches to President Washington, having occasion to mention a promise made to them by the State, said: "The Quaker State will do what it promises." [43] Mr. JEFFERSON, Secretary of State, in his Report on the fisheries. [44] Letters of the Secretary of War and Quartermaster General. [45] For an authorized establishment of 5,120 men, of all arms, the actual establishment being about 3,600. It would be curious to compare the army expenses of that day with those of this day, and the comparative care with which Congress looked into these expenses at the two different periods. The United States were engaged in Indian wars then as now, and upon a theatre (time and cost of getting to it considered) as far off as our Indian wars are at present; for, the distance estimated in that way, is less now to California than it was then to the Miami of the Lakes: yet a cost of something like $200 a head was considered extravagant, and such as to call upon Congress for an inquiry. [46] The bill came down from the Senate where debates were not published, and seems to have passed the House without debate, and almost without division, there being but seven votes against it, and two of these (Messrs. Mercer and Parker) from slave States. Nor does it appear to what part of the bill they objected, whether to the part in relation to fugitives from justice, or to those who fled from service, for both classes of fugitives were comprehended in the same bill. It was passed on a message from President Washington, founded on a communication from the Governor of Pennsylvania in relation to a fugitive from justice who had taken refuge in Virginia, and because it was necessary to have an act of Congress to give effect to the rendition clause in the constitution. There was but little necessity in those times, nor for long after, for an act of Congress to authorize the recovery of fugitive slaves. The laws of the free States, and still more the force of public opinion, were the owners' best safeguards. Public opinion was against the abduction of slaves; and if any one was seduced from his owner, it was done furtively and secretly, without show or force, and as any other moral offence would be committed. State laws favored the owner, and to a greater extent than the act of Congress did, or could. In Pennsylvania there was an act (it was passed in 1780, and only repealed in 1847) discriminating between the traveller and sojourner, and the permanent resident, allowing the former to remain six months in the State before his slaves would become subject to the emancipation laws; and, in the case of a federal government officer, allowing as much more time as his duties required him to remain. New York had the same act, only varying in time, which was nine months. While these two acts were in force, and supported by public opinion, the traveller and sojourner was safe with his slaves in those States, and the same in the other free States. There was no trouble about fugitive slaves in those times. This act of 1793 did not grow out of any such trouble, but out of the case of a fugitive from justice. It was that case which brought the subject before Congress; and, in the act that was passed, the case of fugitives from justice was first provided for, the first and second sections of the act being given to that branch of the subject, and the third and fourth to the other--all brief and plain, and executable without expense or fuss. In the case of a slave the owner was allowed to seize him wherever he saw him, by day or by night, Sundays or week-days, just as if he was in his own State, and a penalty of $500 attached to any person who resisted or obstructed him in this seizure. The only authority he wanted was after the seizure, and to justify the carrying back, and for that purpose, the affidavit of the owner, or his agent was sufficient. This act was perfect, except in relying upon State officers, as well as federal officers to execute it, these State officers not being subject to the federal law, and being forbid to act after slavery became a subject of political agitation. [47] This was a party election, and as such conducted on both sides. Marshall, in his Life of Washington, says of it: "By each party a candidate for the chair was brought forward; and Mr. Muhlenberg, who was supported by the opposition, was elected by a majority of ten votes against Mr. Sedgwick whom the Federalists supported." [48] The debate on this subject was one of the most elaborate, and most replete with knowledge of commercial principles and statistics, which our Congress has furnished. It grew out of the clause in the constitution which gave Congress power to regulate commerce with foreign nations, and gives the interpretation of that clause by its authors, which was wholly different in its nature, as well as distinct in its grant, from the power to lay and collect duties on imports. The latter was to raise revenue: the former to coerce nations into reciprocity of liberal trade with us by making a discrimination in the trade of nations to the disadvantage of the nations which refused to come into reciprocal arrangements with us. The discrimination proposed by Mr. Madison was 5 per centum, and was levelled against Britain, and was only defeated by five votes. In this great debate, as in that upon the Bank of the United States, the genius of Hamilton and Jefferson were pitted against each other, each having made opposite reports on each question, which were the magazines from which the opposing speakers in Congress chiefly armed themselves--Mr. Madison being the chief exponent of the Jeffersonian side, and Mr. William Smith, of South Carolina, that of General Hamilton. It is curious that while this power to regulate foreign commerce by Congress, was one of the chief causes for forming the Federal Government, yet it has never been exercised by Congress, and seems to be a power overlooked, or confounded with that to lay duties and imposts for revenue. Though not yet exercised, it is a power which has found need for its exercise, and will find it again. Our immense commerce, if all articles are taxed even moderately, will produce far more revenue than the economical and fair administration of the Government would require: a large part of it would be left free, as after the payment of the public debt in President Jackson's time; and as may be again after the extinction of the public debt, and the introduction of economy into the expenditures. A moderate duty on two-thirds of the importations may then be sufficient for the expenditures of the Government, leaving (say) one-third to go upon the free list. Now the nations which receive the chief benefit of that large free importation ought to reciprocate the favor by taking something free, or at a moderate duty, from us. "_Free commerce is not to be given in exchange for burthens and impositions_;" and that was the principle of Mr. Madison's resolutions, which were barely defeated, and that by the influence of the mercantile class engaged in commerce with Great Britain. A full view of this subject is given in the first volume of the Thirty Years' View, in giving an account of the effort of the author to revive Mr. Madison's plan. [49] It is grateful to behold the immense progress which the humanity of nations has made. Great Britain is no longer subject to the imputation of exciting pirates and savages against us. She has long since ceased to instigate Indian hostilities, and long ago joined us in humbling Algiers. Far from stimulating barbarian war, she even interposes to save us from civilized war with great nations--witness the proffered mediation of William the Fourth to settle the difficulty between France and the United States, in General Jackson's time: a beautiful instance of old animosity extinct under time, and former evil deeds succeeded by works of kindness and respect. [50] This seventh, article stipulated indemnity to the owners of the deported slaves. [51] Mr. Jefferson resigned his place of Secretary of State at the end of this session, and was succeeded by Mr. Edmund Randolph, of Virginia. Of the resignation and character of Mr. Jefferson, Marshall thus speaks: "This gentleman withdrew from political station at a moment when he stood particularly high in the esteem of his countrymen. His fixed opposition to the financial schemes which had been proposed by the Secretary of the Treasury, and approved by the Legislative and Executive Departments of the Government; his ardent and undisguised attachment to the revolutionary party in France; the dispositions which he was declared to possess in regard to Great Britain; and the popularity of his opinions respecting the Constitution of the United States; had devoted to him that immense party whose sentiments were supposed to comport with his on most or all of these interesting subjects. To the opposite party he had, of course, become particularly unacceptable. But the publication of his correspondence with the French minister, _Genet_, dissipated much of the prejudice which had been excited against him. He had, in that correspondence, maintained, with great ability, the opinions embraced by the Federalists on those points of difference which had arisen between the two Republics, and which, having become universally the subjects of discussion, had in some measure dissipated those topics on which parties had previously divided." [52] The ratification of the Treaty, with the exception of the 12th article, was by the following vote: YEAS--_Messrs._ Bingham, Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Gunn, Henry, King, Latimer, Livermore, Marshall, Paine, Potts, Read, Ross, Rutherford, Strong, Trumbull, and Vining--20. NAYS--_Messrs._ Bloodworth, Brown, Burr, Butler, Jackson, Langdon, Martin, Mason, Robinson, and Tazewell--10. This excepted article related to the direct trade with the British West Indies; and the recommendation added to the clause of ratification was with a view to obtain the full enjoyment of that trade. This was in the year 1795, and the object of the recommendation was not obtained until above thirty years thereafter, and under the administration of General Jackson. [53] This recommendation to treat further for obtaining indemnity for the slaves carried off by the British during the Revolution, remained without effect, and all claim to that indemnification was relinquished by the treaty of 1796. But the same deportation of slaves took place in the war of 1812, followed by the same stipulation for indemnity in the treaty which closed that war, which was contained in the treaty which closed the war of the Revolution; and attended by the same refusal to comply with it. It was not until after twelve years of further negotiation, and under the administration of Mr. John Quincy Adams, and under the arbitrament of the Emperor Alexander, of Russia, that indemnity for these deported slaves of 1812 was received. [54] This was the first instance of any heated debate in answering an address from Washington. It became a party discussion on some points, especially in relation to what was said of the Democratic societies. Marshall says of it: "A very eloquent and animated debate ensued, which terminated in the Committee of the Whole by striking out the words, "self-created societies"--47 voting for, and 45 against expunging them." The question was renewed in the House; and the Chairman of the committee being opposed in sentiment to the Speaker, who was now placed in the chair, the majority was precisely changed, and the words were reinstated. This was a victory for the Administration, but soon lost, the next being in favor of the opposition. [55] He resigned accordingly, no further investigation being moved with respect to him. Recording the event, Marshall says: "Seldom has any minister excited in a higher, or more extensive degree than General Hamilton, the opposite passions of love and hate. His talents were of a grade too exalted not to receive from all the tribute of profound respect; and his integrity and honor as a man, not less than his official rectitude, though slandered at a distance, were admitted to be superior to reproach by those enemies who knew him." [56] A celebrated painter who died in 1554. Speaking of this artist, Henry the Eighth once said, "Out of seven ploughmen I can make seven Lords, but out of seven Lords I cannot make even one Holbein." [57] Col. Timothy Pickering, in place of Gen. Knox, resigned. [58] The distinction was invidious, and soon fell under the ban of public opinion; but the mode of making it was commendable, and freed the Senators voting for the increase from the imputation of a personal motive. [59] This was nominally a private petition, but in reality a question between the State of North Carolina and the Federal Government in relation to their relative rights over Indian lands within the chartered limits of the State. [60] This was the first discussion with open doors, except on the contested election of Mr. Gallatin. [61] This was the first formal opposition to the mode of answering the President's Speech at the opening of the Sessions of Congress, though many members had from the first been repugnant to it as being too close an imitation of the British mode of opening the Sessions of Parliament by an Address from the sovereign in person, an answer to it, and the presentation of the answer by the House in a body. [62] DESCRIPTION OF THE FLAG.--It is tricolor, made of the richest silk, and highly ornamented with allegorical paintings. In the middle, a cock is represented, the emblem of France, standing on a thunderbolt. At two corners, diagonally opposite, are represented two bombshells bursting; at the other two corners, other military emblems. Round the whole is a rich border of oak leaves, alternately yellow and green; the first shaded with brown and heightened with gold; the latter shaded with black and relieved with silver; in this border are entwined warlike musical instruments. The edge is ornamented with a rich gold fringe. The staff is covered with black velvet, crowned with a golden pike, and enriched with the tricolor cravatte and a pair of tassels worked in gold, and the three national colors. The flag is to be deposited in the archives of the United States. [63] Counsel for the prisoner. [64] Of all the members who opposed this trading establishment from the commencement, Mr. Macon was the only one that remained in Congress until it was abolished in 1822. [65] This motion, going to the destruction of the Mint itself, brought up an incidental debate on the right of Congress to withhold appropriations for the support of existing establishments--which is the only part of the debate on the bill which retains a surviving interest. [66] This being the last year of Washington's administration, it presents a proper occasion for seeing what the support of the Government then cost, both as an inquiry pertinent in itself, and as furnishing a point of comparison for the future. This is shown in the introductory clause to the appropriations, stating, "That for defraying the expenditure of the civil list of the United States for the year 1796, together with the incidental and contingent expenses of the several departments and officers thereof, there be appropriated a sum not exceeding $530,392 85 cents." The objects to which this expenditure went, were, 1. Salary to President and Vice President. 2. Compensation to the members of Congress, with all the incidental expenses of that body. 3. The federal judiciary, with all its contingent expenses. 4. The Executive departments, with all their subordinate offices and expenses of every kind. 5. The Mint establishment. 6. The light-house establishment. 7. North-western and South-western territorial governments; with a few other small objects. For each of these items a specific sum was appropriated, of which, the appropriations for Congress were, for the pay of the members and all the officers and attendants, (estimated for a session of six months,) $193,460; and the expenses, fuel, stationery, printing, and all other contingencies of the two Houses, were $11,500. For diplomatic intercourse, $40,000. [67] And proved to be so in this case, though it required thirty years' experience to show it. When the system was brought to a close in 1822, it was found that the whole capital was gone. [68] This was the first attempt to pay members of Congress as salaried officers. [69] This resolution would seem to embody Mr. Madison's interpretation of the clause in the constitution which authorizes Congress to establish post roads. [70] This explanatory note was written by Mr. Gales, editor of the Annals of Congress, who has rendered a valuable service to the student of political history in bringing these two great debates, each by itself, into a single and connected form. They are the groundwork of high constitutional knowledge; and, whether for the intrinsic importance of their matter, the close acquaintance of the speakers with their subject, or as fine specimens of parliamentary debating, they stand forth as debates of the first class which our congressional history has afforded. Marshall, in his history, says of them: "Never had a greater display been made of argument, of eloquence, and of passion; and never had a subject been discussed in which all classes of their fellow-citizens took a deeper interest." The first debate related to the Treaty-making power, and how far the House of Representatives had the right to refuse assent to a treaty which required an appropriation of money, or which regulated commerce, or which required the exercise of any other power specifically granted to Congress. The second applied to the execution of the commercial Treaty of 1794, with Great Britain; one party contending that the Congress was bound to make the appropriation to carry it into effect--the other denying the obligation and claiming the right of a discretionary power. The two debates were upon kindred subjects, and before the House at the same time, yet kept distinct, in the discussion, neither sliding into the other, and one finished before the other began; such was the closeness with which members then adhered to the subject, even in Committee of the Whole, and which gave to these early debates of our Congress so much point and power, and so much attraction to the hearer then and to the reader now. An abridgment can only present a part of these great debates, which cover above 300 pages of the Annals of Congress; but the whole argument will be seen on both sides, as the pith and marrow of each main speech will be given. [71] This course was long followed, no Indian Treaty being held except authorized by an act of Congress, which was the Legislative consent to the grants of money which such Treaties usually contain, and for the payment of which an Act of Congress would be necessary. And in the two great cases of acquiring foreign territory, (Louisiana and Florida,) under Presidents contemporary with the formation of the constitution, and which required large appropriations to carry them into effect, the consent of the Legislative branch of the Government was sought and obtained before the Executive began to act--the law in both cases originating in the House of Representatives as the proper initiatory branch when money was to be paid which the people would have to raise. [72] Thus the House, by a majority of 25, passed the call upon the President for the papers, and upon the declared ground of a _right_ to judge the Treaty, as it contained a regulation of commerce, and also required an appropriation of money. President Washington received the call in the sense in which it was made, and although he had no objection to furnishing the papers, and had laid them before the Senate, (whence they became public,) yet he deemed it his duty to resist the claim of right asserted by the House, and therefore to refuse the papers--which he did in a closely reasoned Message, an epitome of the arguments used in the House on that side. [73] It is seen in this answer of President Washington, that he holds the assent of the House to be unnecessary to the validity of any Treaty whatever, which, of course, includes the class contended for by the House, but makes the question broader than the one presented by its limited claim. [74] In this resolution the House specifies the class of Treaties over which it claims a right of judgment, and limits it to those which involve a matter which has been specially granted to Congress--as an appropriation of money, or the regulation of commerce. [75] And thus the President and the House were completely at issue--the House having expressly asserted, by a majority of 27, a right to judge, not every Treaty, or Treaties generally, but those which involved the exercise of any power granted by the constitution to itself. Trained in the school of this majority, the author of this Abridgment, as often as the occasion required, has maintained the same right for the House; and especially in the case of the territorial purchase from Mexico in 1854. [76] Mr. Hillhouse had submitted a resolution in favor of carrying the Treaty into effect, and afterwards Mr. Maclay submitted one, declaring the contrary; and the question was, which should be taken up? Mr. Madison, as a skilful parliamentary tactician, preferred that of Mr. Hillhouse, as putting the burden of the affirmative upon the adversary, always an advantage in the debate, and, in an even vote, always decisive for the negative side. [77] The following is the letter received by the committee appointed to inquire into the situation of the son of General LAFAYETTE: [TRANSLATION.] "RAMAPAGH, (New Jersey,) March 28, 1796. "SIR: I have just received the honorable resolution which the merits of my father have procured for me. Deign to express to the Representatives of the people of America his gratitude--my youth forbids me yet to speak of mine. Every day recalls to me what he taught me, at every period of his life, so full of vicissitudes, and what he has repeated in a letter, written from the depth of his prison. 'I am convinced (he says) that the goodness of the United States and the tenderness of my paternal friend will need nothing to excite them. "Arrived in America some months since, I live in the country, in New Jersey, occupied in the pursuits of my education. I have no wants; if I had felt any, I should have answered to the paternal solicitude of the President of the United States, either by confiding them to him, or by accepting his offers. I shall hereafter consider it a duty, to impart them to the House of Representatives, which deigns to inquire into my situation. "I am as happy as a continual inquietude relative to the object of my first affections will permit. I have found benevolence wherever I have been known, and have often had the satisfaction of hearing those, who were ignorant of my connections, speak of their interest in the fate of my father, express their admiration of, and partake the gratitude I feel, for the generous Dr. Bollman, who has done so much to break his chains. "It is amid all these motives of emulation, that I shall continue my studies. Every day more convinced of the duties which are imposed by the goodness of Congress, and the names I have the honor to bear. "GEO. WASHINGTON MOTIER LAFAYETTE. The Hon. EDWARD LIVINGSTON, Chairman," &c. [78] This vote of the House to carry the Treaty into effect, was no abandonment of the right it had asserted to judge its merits, and to grant or withhold the appropriation according to its discretion. The discussion sufficiently shows this, and that many members took care to save their votes from any misconstruction on this head. A sense of expediency, and not the force of obligation, carried the vote; and certainly the inducements to let the Treaty stand were very great. Marshall sums them up thus: "If Congress refused to perform the Treaty on the part of the United States, a compliance on the part of Great Britain could not be expected. The posts on the great lakes would still be occupied by British garrisons: no compensation would be made for American vessels illegally captured: the hostile dispositions which had been excited, would be restored with increased aggravation: and that these dispositions must infallibly lead to war, was implicitly believed." The amount to be appropriated was only $90,000, a sum entirely insignificant, and only to be contested on account of the principle its appropriation would involve. Yet the insignificance of the sum, and with all the inducements to let the Treaty stand, and under such a President as Washington, barely saved it from defeat! so jealous was the Democratic party of that day of the rights of Congress, and so determined was the House to remain master of the public purse. Ninety thousand dollars was all the money at stake; but what has since been seen? An Executive offering fifty millions for a slip of territory! and one hundred millions, and afterwards two hundred, for an island! Actually negotiating a Treaty of twenty millions, which the Senate reduced to ten! and all, not only without the sanction, but without the knowledge of the Legislative power. To admit that Congress would be bound to appropriate such sums if the offers had ripened into Treaty stipulations, would be to admit that the President, Senate, and a foreign potentate were masters of the appropriating power; and, of course, of the taxing and borrowing power, and of all the means by which money was to be raised. Even a discretionary power over the appropriation, after the Treaty has been made, is but a slight defence for the treasury, there being always in Congress, as in all public bodies, men to yield to circumstances,--good easy men to be persuaded; timid men to be scared; venal men to be purchased. And out of these classes enough are usually found to turn the scale, when upright men divide upon a large measure. The only safe way is that of consultation beforehand, as practised by Washington in the early part of his Administration, and by the Presidents under whom Louisiana, Florida, and California were acquired. [79] The claim was renewed continually, and fruitlessly, until the year 1832, when it was allowed, and the horse paid for according to his certificated specie value at the time he was taken in the year 1781--$1,500. [80] Up to this time and afterwards, until the year 1798, there was no Naval Department, or Secretary of the Navy, and the marine, as well as the land force, was under the charge of the Secretary of War--which accounts for the appropriations of the two branches of the service appearing in the same bill. [81] The whole sum appropriated for the Military and Naval Establishments of the year, was, $1,318,873--the strength of the army being 3000 men, and the debate is given as an instance of the closeness with which appropriations were scrutinized in the early ages of the Government, and also as showing the expense of maintaining troops in the north-west--then as far off (time and cost considered) as our Pacific possessions now are. 
47289	----	file was produced from scans of public domain works at the University of Michigan's Making of America collection.) ABRIDGMENT OF THE DEBATES OF CONGRESS, FROM 1789 TO 1856. FROM GALES AND SEATON'S ANNALS OF CONGRESS; FROM THEIR REGISTER OF DEBATES; AND FROM THE OFFICIAL REPORTED DEBATES, BY JOHN C. RIVES. BY THE AUTHOR OF THE THIRTY YEARS' VIEW. VOL. IV. NEW YORK: D. APPLETON & COMPANY, 346 & 348 BROADWAY. 1860. Entered according to Act of Congress, in the year 1856, by D. APPLETON AND COMPANY, in the Clerk's Office of the District Court for the Southern District of New York. TENTH CONGRESS.--SECOND SESSION. BEGUN AT THE CITY OF WASHINGTON, NOVEMBER 7, 1808. PROCEEDINGS IN THE SENATE. MONDAY, November 7, 1808. Conformably to the act, passed the last session, entitled "An act to alter the time for the next meeting of Congress," the second session of the tenth Congress commenced this day; and the Senate assembled at the city of Washington. PRESENT: GEORGE CLINTON, Vice President of the United States and President of the Senate. NICHOLAS GILMAN and NAHUM PARKER, from New Hampshire. TIMOTHY PICKERING, from Massachusetts. JAMES HILLHOUSE and CHAUNCEY GOODRICH, from Connecticut. BENJAMIN HOWLAND and ELISHA MATHEWSON, from Rhode Island. STEPHEN R. BRADLEY and JONATHAN ROBINSON, from Vermont. SAMUEL L. MITCHILL and JOHN SMITH, from New York. JOHN CONDIT and AARON KITCHEL, from New Jersey. SAMUEL MACLAY, from Pennsylvania. SAMUEL WHITE, from Delaware. WILLIAM B. GILES, from Virginia. JAMES TURNER, from North Carolina. THOMAS SUMTER and JOHN GAILLARD, from South Carolina. WILLIAM H. CRAWFORD, from Georgia. BUCKNER THRUSTON and JOHN POPE, from Kentucky. DANIEL SMITH, from Tennessee. EDWARD TIFFIN, from Ohio. JAMES LLOYD, jun., appointed a Senator by the Legislature of the State of Massachusetts, to supply the place of John Quincy Adams, resigned, took his seat in the Senate, and produced his credentials, which were read, and the oath prescribed by law was administered to him. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business; and that Messrs. BRADLEY and POPE be a committee on the part of the Senate, together with such committee as may be appointed by the House of Representatives on their part, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled. A message from the House of Representatives informed the Senate that a quorum of the House is assembled and ready to proceed to business; and that the House had appointed a committee on their part, jointly with the committee appointed on the part of the Senate, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled. _Resolved_, That JAMES MATHERS, Sergeant-at-Arms and Doorkeeper to the Senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the Doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after. On motion, by Mr. BRADLEY, _Resolved_, That two Chaplains, of different denominations, be appointed to Congress during the present session, one by each House, who shall interchange weekly. Mr. BRADLEY reported, from the joint committee, that they had waited on the President of the United States, agreeably to order, and that the President of the United States informed the committee that he would make a communication to the two Houses at 12 o'clock to-morrow. TUESDAY, November 8. SAMUEL SMITH and PHILIP REED, from the State of Maryland, attended. The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: It would have been a source, fellow-citizens, of much gratification, if our last communications from Europe had enabled me to inform you that the belligerent nations, whose disregard of neutral rights has been so destructive to our commerce, had become awakened to the duty and true policy of revoking their unrighteous edicts. That no means might be omitted to produce this salutary effect, I lost no time in availing myself of the act authorizing a suspension, in whole, or in part, of the several embargo laws. Our Ministers at London and Paris were instructed to explain to the respective Governments there, our disposition to exercise the authority in such manner as would withdraw the pretext on which aggressions were originally founded, and open the way for a renewal of that commercial intercourse which it was alleged, on all sides, had been reluctantly obstructed. As each of those Governments had pledged its readiness to concur in renouncing a measure which reached its adversary through the incontestable rights of neutrals only, and as the measure had been assumed by each as a retaliation for an asserted acquiescence in the aggressions of the other, it was reasonably expected that the occasion would have been seized by both for evincing the sincerity of their professions, and for restoring to the commerce of the United States its legitimate freedom. The instructions of our Ministers, with respect to the different belligerents, were necessarily modified with a reference to their different circumstances, and to the condition annexed by law to the Executive power of suspension requiring a degree of security to our commerce which would not result from a repeal of the decrees of France. Instead of a pledge therefore of a suspension of the embargo as to her, in case of such a repeal, it was presumed that a sufficient inducement might be found in other considerations, and particularly in the change produced by a compliance with our just demands by one belligerent, and a refusal by the other, in the relations between the other and the United States. To Great Britain, whose power on the ocean is so ascendant, it was deemed not inconsistent with that condition to state, explicitly, on her rescinding her orders in relation to the United States, their trade would be opened with her, and remain shut to her enemy, in case of his failure to rescind his decrees also. From France no answer has been received, nor any indication that the requisite change in her decrees is contemplated. The favorable reception of the proposition to Great Britain was the less to be doubted, as her Orders of Council had not only been referred for their vindication to an acquiescence on the part of the United States no longer to be pretended, but as the arrangement proposed, whilst it resisted the illegal decrees of France, involved, moreover, substantially, the precise advantages professedly aimed at by the British Orders. The arrangement has, nevertheless, been rejected. This candid and liberal experiment having thus failed, and no other event having occurred on which a suspension of the embargo by the Executive was authorized, it necessarily remains in the extent originally given to it. We have the satisfaction, however, to reflect, that in return for the privations imposed by the measure, and which our fellow-citizens in general have borne with patriotism, it has had the important effects of saving our mariners, and our vast mercantile property, as well as of affording time for prosecuting the defensive and provisional measures called for by the occasion. It has demonstrated to foreign nations the moderation and firmness which govern our councils, and to our citizens the necessity of uniting in support of the laws and the rights of their country, and has thus long frustrated those usurpations and spoliations which, if resisted, involved war, if submitted to, sacrificed a vital principle of our national independence. Under a continuance of the belligerent measures, which, in defiance of laws which consecrate the rights of neutrals, overspread the ocean with danger, it will rest with the wisdom of Congress to decide on the course best adapted to such a state of things; and bringing with them, as they do, from every part of the Union, the sentiments of our constituents, my confidence is strengthened that, in forming this decision, they will, with an unerring regard to the essential rights and interests of the nation, weigh and compare the painful alternatives out of which a choice is to be made. Nor should I do justice to the virtues which, on other occasions, have marked the character of our fellow-citizens, if I did not cherish an equal confidence that the alternative chosen, whatever it may be, will be maintained with all the fortitude and patriotism which the crisis ought to inspire. The documents containing the correspondences on the subject of foreign edicts against our commerce, with the instructions given to our Ministers at London and Paris, are now laid before you. The communications made to Congress at their last session explained the posture in which the close of the discussions relating to the attack by a British ship of war on the frigate Chesapeake, left a subject on which the nation had manifested so honorable a sensibility. Every view of what had passed authorized a belief that immediate steps would be taken by the British Government for redressing a wrong, which, the more it was investigated, appeared the more clearly to require what had not been provided for in the special mission. It is found that no steps have been taken for the purpose. On the contrary, it will be seen, in the documents laid before you, that the inadmissible preliminary, which obstructed the adjustment, is still adhered to; and, moreover, that it is now brought into connection with the distinct and irrelative case of the Orders in Council. The instructions which had been given to our Minister at London, with a view to facilitate, if necessary, the reparation claimed by the United States, are included in the documents communicated. Our relations with the other powers of Europe have undergone no material changes since our last session. The important negotiations with Spain, which had been alternately suspended and resumed, necessarily experience a pause under the extraordinary and interesting crisis which distinguishes her internal situation. With the Barbary Powers we continue in harmony, with the exception of an unjustifiable proceeding of the Dey of Algiers towards our Consul to that Regency. Its character and circumstances are now laid before you, and will enable you to decide how far it may, either now or hereafter, call for any measures not within the limits of the Executive authority. Of the gun boats authorized by the act of December last, it has been thought necessary to build only one hundred and three in the present year. These, with those before possessed, are sufficient for the harbors and waters most exposed, and the residue will require little time for their construction when it shall be deemed necessary. Under the act of the last session for raising an additional military force, so many officers were immediately appointed as were necessary for carrying on the business of recruiting; and in proportion as it advanced, others have been added. We have reason to believe their success has been satisfactory, although such returns have not yet been received as enable me to present you a statement of the number engaged. The suspension of our foreign commerce, produced by the injustice of the belligerent powers, and the consequent losses and sacrifices of our citizens, are subjects of just concern. The situation into which we have thus been forced has impelled us to apply a portion of our industry and capital to internal manufactures and improvements. The extent of this conversion is daily increasing, and little doubt remains that the establishments formed and forming will, under the auspices of cheaper materials and subsistence, the freedom of labor from taxation with us, and of protecting duties and prohibitions, become permanent. The commerce with the Indians, too, within our own boundaries, is likely to receive abundant aliment from the same internal source, and will secure to them peace and the progress of civilization, undisturbed by practices hostile to both. The accounts of the receipts and expenditures during the year ending on the thirtieth day of September last, being not yet made up, a correct statement will hereafter be transmitted from the Treasury. In the mean time, it is ascertained that the receipts have amounted to near eighteen millions of dollars, which, with the eight millions and a half in the Treasury at the beginning of the year, have enabled us, after meeting the current demands, and interest incurred, to pay two millions three hundred thousand dollars of the principal of our funded debt, and left us in the Treasury, on that day, near fourteen millions of dollars. Of these, five millions three hundred and fifty thousand dollars will be necessary to pay what will be due on the first day of January next, which will complete the reimbursement of the eight per cent. stock. These payments, with those made in the six years and a half preceding, will have extinguished thirty-three millions five hundred and eighty thousand dollars of the principal of the funded debt, being the whole which could be paid or purchased within the limits of the law and our contracts; and the amount of principal thus discharged will have liberated the revenue from about two millions of dollars of interest, and added that sum annually to the disposable surplus. The probable accumulation of the surpluses of revenue beyond what can be applied to the payment of the public debt, whenever the freedom and safety of our commerce shall be restored, merits the consideration of Congress. Shall it lie unproductive in the public vaults? Shall the revenue be reduced? Or, shall it not rather be appropriated to the improvements of roads, canals, rivers, education, and other great foundations of prosperity and union, under the powers which Congress may already possess, or such amendment of the constitution as may be approved by the States? While uncertain of the course of things, the time may be advantageously employed in obtaining the powers necessary for a system of improvement, should that be thought best. Availing myself of this, the last occasion which will occur, of addressing the two Houses of the Legislature at their meeting, I cannot omit the expression of my sincere gratitude for the repeated proofs of confidence manifested to me by themselves and their predecessors since my call to the administration, and the many indulgences experienced at their hands. The same grateful acknowledgments are due to my fellow-citizens generally, whose support has been my great encouragement under all embarrassments. In the transaction of their business I cannot have escaped error. It is incident to our imperfect nature. But I may say with truth my errors have been of the understanding, not of intention, and that the advancement of their rights and interests has been the constant motive for every measure. On these considerations I solicit their indulgence. Looking forward with anxiety to their future destinies, I trust that, in their steady character, unshaken by difficulties, in their love of liberty, obedience to law, and support of the public authorities, I see a sure guarantee of the permanence of our Republic; and retiring from the charge of their affairs, I carry with me the consolation of a firm persuasion that Heaven has in store for our beloved country long ages to come of prosperity and happiness. TH. JEFFERSON. NOVEMBER 8, 1808. The Message and papers were in part read, and one thousand copies ordered to be printed for the use of the Senate. A confidential Message was also received, with sundry documents therein referred to, which were read for consideration. WEDNESDAY, November 9. JESSE FRANKLIN, from the State of North Carolina, attended. FRIDAY, November 11. A message from the House of Representatives informed the Senate that the House have appointed the Rev. Mr. BROWN a Chaplain to Congress, on their part, during the present session. MONDAY, November 14. JOSEPH ANDERSON, from the State of Tennessee, and ANDREW MOORE, from the State of Virginia, attended. WEDNESDAY, November 16. ANDREW GREGG, from the State of Pennsylvania, attended. MONDAY, November 21. _The Embargo._ This being the day fixed for the discussion of the following resolution, offered by Mr. HILLHOUSE: _Resolved_, That it is expedient that the act, entitled "An act laying an embargo on all ships and vessels in the ports and harbors of the United States," and the several acts supplementary thereto, be repealed; and that a committee be appointed to prepare and report a bill for that purpose: Mr. HILLHOUSE opened the debate. When the reporter entered the Senate chamber, Mr. H. had been speaking for a few minutes, and was then discussing the effect which the embargo had had upon France, and the light in which it was viewed by her rulers. He alluded to the declaration of satisfaction at the measure, contained in a late French exposé, and made many observations tending to show that it was not a measure of hostility or coercion, as applied to France. On England it had little or no effect. Her resources were immense. If deprived of a supply of grain here, she could obtain it elsewhere. The Barbary Powers were at war with France and at peace with England, who might thence obtain wheat in any quantity she pleased. Great Britain, he said, was a nation with the whole world before her; her commerce spread over every sea, and she had access to almost every port and clime. Could America expect to starve this nation? It was a farce, an idle farce. As to her West India Islands, they raised Indian corn; all their sugar plantations could be converted into corn-fields, and would any man say that they would starve because they could not get superfine flour? Was this a necessary of life without which they could not subsist? On the contrary, a great proportion of the American people subsisted on it, and enjoyed as good health as if they ate nothing but the finest of wheat flour. The moment people understood that they could not get their necessary supplies from a customary source, they would look out for it in another quarter, and ample time had been given to them to make arrangements for this purpose. A man of the first respectability in the town in which Mr. H. lived, had been there during this embargo, under the President's permission. What accounts did he bring? Why, that the trade in corn-meal and live cattle, articles of great export from Connecticut, and comprising not only the product of that State, but of parts of the neighboring States, would be entirely defeated; that, where they had formerly sent a _hundred_ hogsheads of meal, they would not now find vent for _ten_; and that, from South America, where cattle had, in times past, been killed merely for their hides and tallow, cattle in abundance could be procured. Were these people to be starved out, when they could actually purchase cheaper now from other places than they had formerly done from us? No; the only consequence would be, and that too severely felt, that we should lose our market; the embargo thus producing, not only present privation and injury, but permanent mischief. The United States would have lost the chance of obtaining future supplies, they would have lost their market, and ten or twenty years would place them on the same footing as before. Mr. H. said the West Indians would have learnt that they can do without us; that they can raise provisions cheaper on their own plantations than we can sell them; and knowing this, they would never resort to us. Though we might retain a part of this commerce, the best part would be lost forever. The trade would not be worth pursuing; though this might answer one purpose intended by the embargo, and which was not expressed. Having considered the article of provisions as important to various parts of the Union, Mr. H. said he would now turn to another article, cotton. It had been very triumphantly said, that the want of this article would distress the manufacturers of Great Britain, produce a clamor amongst them, and consequently accelerate the repeal of the Orders in Council. Mr. H. said he would examine this a little, and see if all the evil consequences which opened on him at the time of the passage of the embargo law were not likely to be realized. He had hinted at some of them at that time, but the bill had gone through the Senate like a flash of lightning, giving no time for examination; once, twice, and a third time in one day, affording no time for the development of all its consequences. This article of cotton was used not only by Britain, but by France and other nations on the Continent. Cotton, not being grown in Europe, must be transported by water carriage. This being the case, who would now be most likely to be supplied with it? Not the Continental Powers who have so little commerce afloat nor any neutrals to convey it to them; for the United States were the only neutral which, of late, traded with France, and now the embargo was laid, she had no chance of getting it, except by the precarious captures made by her privateers. To Great Britain, then, was left the whole commerce of the world, and her merchants were the only carriers. Would not these carriers supply their own manufacturers? Would they suffer cotton to go elsewhere, until they themselves were supplied? America was not the only country where cotton was raised; for he had seen an account of a whole cargo brought into Salem from the East Indies, and thence exported to Holland, with a good profit. Cotton was also raised in Africa, as well as elsewhere; and this wary nation, Great Britain, conceiving that the United States might be so impolitic as to keep on the embargo, had carried whole cargoes of the best cotton seed there for the purpose of raising cotton for her use. Great Britain had possessions in every climate on the globe, and cotton did not, like the sturdy oak, require forty or fifty years to arrive at maturity; but, if planted, would produce a plentiful supply in a year. Thus, then, when this powerful nation found America resorting to such means to coerce her, she had taken care to look out for supplies in other quarters; and, with the command of all the cotton on the globe which went to market, could we expect to coerce her by withholding ours? Mr. H. said no; all the inconvenience which she could feel from our measure had already been borne; and Great Britain was turning her attention to every part of the globe to obtain those supplies which she was wont to get from us, that she might not be reduced to the humiliating condition of making concession to induce us to repeal our own law, and purchase an accommodation by telling us that we had a weapon which we could wield to her annoyance. Mr. H. wished to know of gentlemen if we had not experience enough to know that Great Britain was not to be threatened into compliance by a rod of coercion? Let us examine ourselves, said he, for if we trace our genealogy we shall find that we descend from them; were they to use us in this manner, is there an American that would stoop to them? I hope not; and neither will that nation, from which we are descended, be driven from their position, however erroneous, by threats. This embargo, therefore, instead of operating on those nations which had been violating our rights, was fraught with evils and privations to the people of the United States. They were the sufferers. And have we adopted the monkish plan of scourging ourselves for the sins of others? He hoped not; and that, having made the experiment and found that it had not produced its expected effect, they would abandon it, as a measure wholly inefficient as to the objects intended by it, and as having weakened the great hold which we had on Great Britain, from her supposed dependence on us for raw materials. Some gentlemen appeared to build up expectations of the efficiency of this system by an addition to it of a non-intercourse law. Mr. H. treated this as a futile idea. They should however examine it seriously, and not, like children, shut their eyes to danger. Great Britain was not the only manufacturing nation in Europe. Germany, Holland, France, Spain, Portugal, and Italy, manufactured more or less, and most of them had colonies, the exclusive supply of whose manufactures they had heretofore reserved to themselves. While we had enjoyed the carrying trade, we had supplied the deficiency in navigation of those nations; and all the inconvenience felt for the want of it ceased because we stepped in and aided them. This trade had been cut up, and perhaps it was not a trade which the energies of the nation should be embarked in defending. Who was there now to supply all these various colonies that used to be supplied by us? None but England, the sole mistress of the ocean. Whose products, then, would Great Britain carry? Would she carry products of other nations, and let her own manufacturers starve? No; and this exclusion from the colonies of other manufactures, and leaving her merchants the sole carriers of the world, produced a greater vent for her manufactures than the whole quantity consumed in the United States. This, however, was arguing upon the ground that the United States would consume none of her manufactures in case of a non-intercourse. Mr. H. said he was young when the old non-intercourse took place, but he remembered it well, and had then his ideas on the subject. The British army was then at their door, burning their towns and ravaging the country, and at least as much patriotism existed then as now; but British fabrics were received and consumed to almost as great an extent as before the prohibition. The armies could not get fresh provisions from Europe, but they got them here by paying higher prices in guineas for them than was paid by our Government in ragged continental paper money. When the country was in want of clothing, and could get it for one-fourth price from the British, what was the consequence? Why, all the zealous patriots--for this work of tarring and feathering, and meeting in mobs to destroy their neighbor's property, because he could not think quite as fast as they did, which seemed to be coming in fashion now, had been carried on then with great zeal--these patriots, although all intercourse was penal, carried on commerce notwithstanding. Supplies went hence, and manufactures were received from Europe. Now, what reliance could be placed on this patriotism? A gentleman from Vermont had told the Senate at the last session, that the patriotism of Vermont would stop all exportation by land, without the assistance of the law. How had it turned out? Why, patriotism, cannon, militia, and all had not stopped it; and although the field-pieces might have stopped it on the Lakes, they were absolutely cutting new roads to carry it on by land. And yet the gentleman had supposed that their patriotism would effectually stop it! Now, Mr. H. wanted to know how a non-intercourse law was to be executed by us with a coast of fifteen hundred miles open to Great Britain by sea, and joining her by land? Her goods would come through our Courts of Admiralty by the means of friendly captors; they would be brought in, condemned, and then naturalized, as Irishmen are now naturalized, before they have been a month in the country. Mr. POPE said it had been his opinion this morning that this resolution should have been referred to that committee, but after what had been said, it was his wish that some commercial gentleman, whose knowledge of commercial subjects would enable him to explore the wide field taken by the gentleman from Connecticut, would have answered him. He had hoped, at this session, after the Presidential election was decided, that all would have dismounted from their political hobbies, that they would have been all Federalists, all Republicans, all Americans. When they saw the ocean swarming with pirates, and commerce almost annihilated, he had hoped that the demon of party spirit would not have reared its head within these walls, but that they would all have mingled opinions and consulted the common good. He had heretofore been often charmed with the matter-of-fact arguments of the gentleman from Connecticut; but on this day the gentleman had resorted to arguments from newspapers, and revived all the old story of French influence, in the same breath in which he begged them to discard all party feelings and discuss with candor. The gentleman had gone into a wide field, which Mr. H. said he would not now explore, but begged time till to-morrow, when he would endeavor to show to the nation and to the world that the arguments used by the gentleman in favor of his resolution were most weighty against it. If patriotism had departed the land, if the streams of foreign corruption had flowed so far that the people were ready to rise in opposition to their Government, it was indeed time that foreign intercourse should cease. If the spirit of 1776 were no more--if the spirit of commercial speculation had surmounted all patriotism--if this was the melancholy situation of the United States, it was time to redeem the people from this degeneracy, to regenerate them, to cause them to be born again of the spirit of 1776. But he believed he should be able to show that the proposition of the gentleman from Connecticut hardly merited the respect or serious consideration of this honorable body. Mr. P. said he had expected that in advocating his resolution the gentleman would have told the Senate that we should go to war with Great Britain and France; that he would have risen with patriotic indignation and have called for a more efficient measure. But to his surprise, the gentleman had risen, and with the utmost _sang froid_ told them, let your ships go out, all's well, and nothing is to be apprehended. Mr. P. said he would not go into the subject at this moment; he had but risen to express his feelings on the occasion. He wished the subject postponed, the more because he wished to consult a document just laid on their table, to see how the memorials presented a short time ago from those whose cause the gentleman from Connecticut undertook to advocate, accorded with the sentiments he had this day expressed for them. Mr. LLOYD said he considered the question now under discussion as one of the most important that has occurred since the adoption of the Federal Constitution. It is a subject, said Mr. L., deeply implicating, and perhaps determining, the fate of the commerce and navigation of our country; a commerce which has afforded employment for nearly a million and a half of tons of navigation; which has found occupation for hundreds of thousands of our citizens; which has spread wealth and prosperity in every region of our country, and which has upheld the Government by furnishing the revenue for its support. A commerce which has yielded an annual amount of exports exceeding one hundred millions of dollars; an amount of exports three times as great as was possessed by the first maritime and commercial nation of the world at the commencement of the last century, when her population was double that of the United States at this time; an amount of exports equal to what Great Britain, with her navy of a thousand ships, and with all her boasted manufactures, possessed even at so recent a period as within about fifteen years from this date; surely this is a commerce not to be trifled with; a commerce not lightly to be offered up as the victim of fruitless experiment. Our commerce has unquestionably been subject to great embarrassment, vexation, and plunder, from the belligerents of Europe. There is no doubt but both France and Great Britain have violated the laws of nations, and immolated the rights of neutrals; but there is, in my opinion, a striking difference in the circumstances of the two nations; the one, instigated by a lawless thirst of universal domination, is seeking to extend an iron-handed, merciless despotism over every region of the globe; while the other is fighting for her _natale solum_, for the preservation of her liberties, and probably for her very existence. The one professes to reluct at the inconvenience she occasions you by the adoption of measures which are declared to be intended merely as measures of retaliation on her enemies, and which she avows she will retract as soon as the causes which occasion them are withdrawn. The other, in addition to depredation and conflagration, treats you with the utmost contumely and disdain; she admits not that you possess the rights of sovereignty and independence, but undertakes to legislate for you, and declares that, whether you are willing or unwilling, she considers you as at war with her enemy; that she had arrested your property, and would hold it as bail for your obedience, until she knew whether you would servilely echo submission to her mandates. There is no doubt that the conduct of these belligerents gave rise to the embargo; but if this measure has been proved by experience to be inoperative as it regards them, and destructive only as it respects ourselves, then every dictate of magnanimity, of wisdom, and of prudence, should urge the immediate repeal of it. The propriety of doing this is now under discussion. The proposition is a naked one; it is unconnected with ulterior measures; and gentlemen who vote for its repeal ought not to be considered as averse from, and they are not opposed to, the subsequent adoption of such other measures as the honor and the interest of the country may require. In considering this subject, it naturally presents itself under three distinct heads: 1st. As it respects the security which it gave to our navigation, and the protection it offered our seamen, which were the ostensible objects of its adoption. 2dly. In reference to its effect on other nations, meaning France and Great Britain, in coercing them to adopt a more just and honorable course of policy towards us: and, 3dly. As it regards the effects which it has produced and will produce among ourselves. In thus considering it, sir, I shall only make a few remarks on the first head. I have no desire to indulge in retrospections; the measure was adopted by the Government; if evil has flowed from it, that evil cannot now be recalled. If events have proved it to be a wise and beneficial measure, I am willing that those to whom it owes its parentage should receive all the honors that are due to them; but if security to our navigation, and protection to our seamen, were the real objects of the embargo, then it has already answered all the effects that can be expected from it. In fact, its longer continuance will effectually counteract the objects of its adoption; for it is notorious, that each day lessens the number of our seamen, by their emigration to foreign countries, in quest of that employment and subsistence which they have been accustomed to find, but can no longer procure, at home; and as it regards our navigation, considered as part of the national property, it is not perhaps very material whether it is sunk in the ocean, or whether it is destined to become worthless from lying and rotting at our wharves. In either case, destruction is equally certain, it is death; and the only difference seems to be between death by a _coup de grace_, or death after having sustained the long-protracted torments of torture. What effect has this measure produced on foreign nations? What effect has it produced on France? The honorable gentleman from Connecticut has told you, and told you truly, in an exposé presented by the French Minister of Foreign Affairs to the Emperor, that this measure is much applauded: it is called a magnanimous measure of the Americans! And in a conversation which is stated to have passed recently at Bayonne, between the Emperor of France and an American gentleman, it is said, and I believe correctly, that the Emperor expressed his approbation of the embargo. I have no doubt that this is the fact; the measure is too consentaneous with his system of policy, not to be approbated by him. So long as the extreme maritime preponderancy of Great Britain shall continue, with or without the existence of an American embargo, or with or without the British Orders in Council, France can enjoy but very little foreign commerce, and that little the Emperor of France would undoubtedly be willing to sacrifice, provided that, by so doing, he could insure the destruction of a much larger and more valuable amount of British and American commerce. It is therefore apparent, that this measure, considered as a coercive measure against France, is nugatory in the extreme. What, sir, are, or have been its effects on Great Britain? When the embargo was first laid the nation were alarmed. Engaged in a very extended and important commerce with this country, prosecuted upon the most liberal and confidential terms, this measure, whether considered as an act of hostility, or as a mere municipal restrictive regulation, could not but excite apprehension; for most of our writers, in relation to her colonies, had impressed the belief of the dependence of the West India settlements on the United States for the means of subsistence. Accordingly, for several months after the imposition of the embargo, we find it remained an object of solicitude with them, nor have I any doubt that the Ministry, at that time, partook of the national feeling; for it appears, so late as June, that such a disposition existed with the British Ministry, as induced our Minister at the Court of London to entertain the belief, and to make known to his Government the expectation he entertained, that an adjustment would take place of the differences between this country and Great Britain. But, sir, the apprehensions of the British nation and Ministry gradually became weaker; the embargo had been submitted to the never-erring test of experience, and information of its real effects flowed in from every quarter. It was found that, instead of reducing the West Indies by famine, the planters in the West Indies, by varying their process of agriculture, and appropriating a small part of their plantations for the raising of ground provisions, were enabled, without materially diminishing their usual crops of produce, in a great measure to depend upon themselves for their own means of subsistence. The British Ministry also became acquainted about this time (June) with the unexpected and unexampled prosperity of their colonies of Canada and Nova Scotia. It was perceived that one year of an American embargo was worth to them twenty years of peace or war under any other circumstances; that the usual order of things was reversed; that in lieu of American merchants making estates from the use of British merchandise and British capital, the Canadian merchants were making fortunes of from ten to thirty or forty thousand pounds in a year, from the use of American merchandise and American capital: for it is notorious, that great supplies of lumber, and pot and pearl ashes, have been transported from the American to the British side of the Lakes; this merchandise, for want of competition, the Canadian merchant bought at a very reasonable rate, sent it to his correspondents in England, and drew exchange against the shipments; the bills for which exchange he sold to the merchants of the United States for specie, transported by wagon loads at noon-day, from the banks in the United States, over the borders into Canada. And thus was the Canadian merchant enabled, with the assistance only of a good credit, to carry on an immensely extended and beneficial commerce, without the necessary employment, on his part, of a single cent of his own capital. About this time, also, the revolution in Spain developed itself. The British Ministry foresaw the advantage this would be to them, and immediately formed a coalition with the patriots: by doing this, they secured to themselves, in despite of their enemies, an accessible channel of communication with the Continent. They must also have been convinced, that if the Spaniards did not succeed in Europe, the Colonies would declare themselves independent of the mother country, and rely on the maritime force of Great Britain for their protection, and thus would they have opened to them an incalculably advantageous mart for their commerce and manufactures; for, having joined the Spaniards without stipulation, they undoubtedly expected to reap their reward in the exclusive commercial privileges that would be accorded to them; nor were they desirous to seek competitors for the favor of the Spaniards: if they could keep the navigation, the enterprise, and the capital of the United States from an interference with them, it was their interest to do it, and they would, from this circumstance, probably consider a one, two, or three years' continuance of the embargo as a boon to them. Mr. SMITH, of Maryland, said he was not prepared to go as largely into this subject as it merited, having neither documents nor papers before him. He would therefore only take a short view of it in his way, and endeavor to rebut a part of the argument of the gentleman from Massachusetts, and perhaps to notice some of the observations of the gentleman from Connecticut. He perfectly agreed with the latter gentleman that this subject ought to be taken up with coolness, and with temper, and he could have wished that the gentleman from Connecticut would have been candid enough to pursue that course which he had laid down for others. Had he done it? No. In the course of the discussion, the gentleman had charged it upon some one, he knew not whom, that there was a disposition to break down commerce for the purpose of erecting manufactures on its ruins. If this was the disposition of those who had advocated the embargo, Mr. S. said he was not one to go with them, and perfectly corresponded with the gentleman in saying that such a plan would be extremely injurious; that possibly it could not be enforced in the United States; and that, if it could, merchants would conceive themselves highly aggrieved by it. But the gentleman's ideas had no foundation. Mr. S. said he had before seen it in newspapers, but had considered it a mere electioneering trick; that nothing like common sense or reason was meant by it, and nobody believed it. The gentleman surely did not throw out this suggestion by way of harmonizing; for nothing could be more calculated to create heat. The gentleman last up, throughout his argument, had gone upon the ground that it is the embargo which has prevented all our commerce; that, if the embargo were removed, we might pursue it in the same manner as if the commerce of the whole world was open to us. If the gentleman could have shown this, he would have gone with him heart and hand; but it did not appear to him that, were the embargo taken off to-morrow, any commerce of moment could be pursued. Mr. S. said he was not certain that it might not be a wise measure to take off the embargo; but he was certain that some other measure should be taken before they thought of taking that. And he had hoped that gentleman would have told them what measure should have been taken before they removed the embargo. Not so, however. A naked proposition was before them to take off the embargo; and were that agreed to, and the property of America subject to depredations by both the belligerents, they would be foreclosed from taking any measure at all for its defence. For this reason this resolution should properly have gone originally to the committee on the resolution of the gentleman from Virginia, (Mr. GILES.) Mr. S. said he was not prepared for a long discussion, he should take but a short view. He would not go back to see which nation had been the first offender. He was not the apologist of any nation, but, he trusted, a fervent defender of the rights, honor, and interests of his own country. By the decrees of France every vessel bound to or from Great Britain, was declared good prize. And still further; if spoken alone by any British vessel, they were condemned in the French prize courts. When a vessel arrived in the ports of France, Mr. S. said, bribery and corruption were made use of in order to effect her condemnation. Every sailor on board was separately examined as to what had happened in the course of the voyage; they were told, you will have one-third of the vessel and cargo as your portion of the prize-money, if you will say that your vessel has touched at a British port or has been visited by a British cruiser. Of course then, by the decrees of France, all American property that floats is subject to condemnation by the French, if it had come in contact with British hands. Were gentlemen willing to submit to this: to raise the embargo, and subject our trade to this depredation? Yes, said the gentleman from Connecticut, who was willing, however, that our ships should arm and defend themselves. Mr. S. said that he had hoped the honorable gentleman would have gone further, and said not only that he would in this case permit our vessels to defend themselves, but to make good prize of any vessel which should impede the trade admitted by the laws of nations. But the gentleman had stopped short of this. By the orders in Council, now made law, (said Mr. S.,) all neutrals--all _neutrals_, this is a mere word _ad captandum_, as it is well known there is no neutral commerce but American--all American vessels, then, bound to France, or countries in alliance with her, are made good prize in the British courts. When bound to any part of the continent of Europe, or any possessions in Turkey or Asia, they are a good prize, Sweden alone excepted. We are then permitted to trade--for it is a permission to trade, since we must acknowledge ourselves indebted to her for any she permits--we are graciously permitted to go to Sweden, to which country our whole exports amount to $56,157! This petty trade is generously permitted us as a boon, and this boon will be struck off the list of permission, the moment any difference arises between Great Britain and Sweden. I am aware, sir, that gentlemen will say this may require explanation. I will give it to them. Great Britain says you shall not trade to any of the countries I have interdicted till you have my leave; pay me a duty and then you may go to any port; pay me a tribute, and then you shall have my license to trade to any ports you choose. What is this tribute? Not having the documents before me, I may make an error of a fraction, but in the principle I am correct. On the article of flour, they tell us, you may bring flour to Great Britain from America, land it, and, if you re-export it, pay into our treasury two dollars on every barrel. For every barrel of flour which we send to Spain, Portugal, or Italy, where the gentleman from Massachusetts has correctly told us much of it is consumed, little of it being used in Great Britain or France, you must pay two dollars besides your freight and insurance. And this tribute is to be paid for a permission to trade. Are gentlemen willing to submit to this? On the article of wheat, exported, you must pay in Great Britain a duty of, I believe, two shillings sterling a bushel, before it can be re-exported. On the important article of cotton they have charged a duty on its exportation of nine pence sterling per lb., equal to the whole value of the article itself in Georgia or South Carolina. This is in addition to the usual import duty of two pence in the pound. Thus, if we wish to go to the Continent, we may go on condition of paying a tribute equal to the value of the cotton, in addition to risk or insurance. It is generally understood that two-thirds of the cotton exported by us, may be consumed in England, when all her manufactures are in good work. On the remaining third the people of the Southern country are subject to a tribute--on twenty millions of pounds, at the rate of 17 cents per pound. Let this be calculated, and it will be seen what tax we must pay for leave to sell that article. The English Orders had told us we might trade as usual with the West India Islands; but now, believing no doubt that this Government has not strength or energy in itself to maintain any system long, what has she done? Proclaimed a blockade on the remaining islands of France, so that we are now confined to British islands alone! We are restricted from trading there by blockade, and what security have we, that if the embargo be taken off--for I wish it were off: no man suffers more from it, in proportion to his capital, than I do; but I stand here the Representative of the people, and must endeavor to act in such a manner as will best secure their interests; and I pledge myself to join heart and hand with gentlemen to take it off, whenever we can have a safe and honorable trade--that, from our submitting to these interdictions, as a right of Great Britain, she may not choose to interdict all trade, she being omnipotent, and sole mistress of the ocean, as we were told by the gentleman from Connecticut. I have seen a late English pamphlet, called "Hints to both Parties," said to be by a ministerial writer, to this effect: that Great Britain, having command over all the seas, could and ought to exclude and monopolize the trade of the world to herself. This pamphlet goes critically into an examination of the subject; says that by a stroke of policy she can cut us off from our extensive trade; that she has the power, and, having the power, she ought to do it. TUESDAY, November 22. _The Embargo._ Mr. MOORE said the gentleman from Connecticut had asked if the embargo had been productive of the consequences expected to result from it when passed? Had it not been more injurious to the United States than to foreign nations? It is certainly true (said Mr. M.) that it has not been productive of all the effects expected by those who were its advocates when it passed, but it has not had a fair experiment. The law has been violated, and an illicit commerce carried on, by which the belligerents have received such supplies as to have partially prevented its good effects. The publications throughout the United States, and thence in England, that the embargo could not be maintained, have induced the belligerents to believe that we wanted energy, and that we are too fluctuating in our councils to persevere in a measure which requires privations from the people. Under these circumstances, it appears to me that the embargo has not had a fair trial. I have ever been of opinion that the only warfare which we could ever carry on to advantage, must be commercial; and, but for evasions and miscalculations on our weakness, we should before this have been suffered to pursue our accustomed trade. It has been asked whether the embargo has not operated more on the United States than on the European Powers? In estimating this, it will be proper to take into consideration the evils prevented, as well as the injury done by the embargo. If the embargo had not passed, is it not certain that the whole produce of the United States would have invited attack and offered a bait to the rapacity of the belligerent cruisers? If a few have accidentally escaped them, it is no evidence that, if the embargo had not been laid, the whole would not have been in the hands of the belligerents. That both belligerents have manifested hostilities by edicts which prostrated our commerce, will not be denied by any gentleman. Great Britain, on a former occasion, passed an order, sent it out secretly, and before our Minister was officially notified, it was in full operation. Their late orders included all our commerce which was afloat. Was it not to be expected that such would have been the policy of Great Britain in this case, and such our proportionate loss, if the embargo had not been laid, and thus snatched this valuable commerce from their grasp? WEDNESDAY, November 23. _The Embargo._ Mr. CRAWFORD said that one of the objects of the gentleman from Connecticut was, no doubt, to obtain information of the effects of the embargo system from every part of the United States. This information was very desirable at the present time, to assist the Councils of the nation in an opinion of the course proper to be pursued in relation to it. A Government founded, like ours, on the principle of the will of the nation, which subsisted but by it, should be attentive as far as possible to the feelings and wishes of the people over whom they presided. He did not say that the Representatives of a free people ought to yield implicit obedience to any portion of the people who may believe them to act erroneously; but their will, when fairly expressed, ought to have great weight on a Government like ours. The Senate had received several descriptions of the effects produced by the embargo in the eastern section of the Union. As the Representative of another extreme of this nation, Mr. C. said he conceived it his duty to give a fair, faithful, and candid representation of the sentiments of the people whom he had the honor to represent. It was always the duty of a Representative to examine whether the effects expected from any given measure, had or had not been produced. If this were a general duty, how much more imperiously was it their duty at this time! Every one admitted that considerable sufferings have been undergone, and much more was now to be borne. Gentlemen have considered this subject, generally, in a twofold view, (said Mr. C.,) as to its effects on ourselves, and as to its effects on foreign nations. I think this a proper and correct division of the subject, because we are certainly more interested in the effects of the measure on ourselves than on other nations. I shall therefore thus pursue the subject. It is in vain to deny that this is not a prosperous time in the United States; that our situation is neither promising nor flattering. It is impossible to say that we have suffered no privations in the year 1808, or that there is a general spirit of content throughout the United States; but I am very far from believing that there is a general spirit of discontent. Whenever the measures of the Government immediately affect the interest of any considerable portion of its citizens, discontents will arise, however great the benefits which are expected from such measures. One discontented man excites more attention than a thousand contented men, and hence the number of discontented is always overrated. In the country which I represent, I believe no measure is more applauded or more cheerfully submitted to than the embargo. It has been viewed there as the only alternative to avoid war. It is a measure which is enforced in that country at every sacrifice. At the same time that I make this declaration, I am justified in asserting that there is no section of the Union whose interests are more immediately affected by the measure than the Southern States--than the State of Georgia. We have been told by an honorable gentleman, who has declaimed with great force and eloquence against this measure, that great part of the produce of the Eastern country has found its way into market; that new ways have been cut open, and produce has found its way out. Not so with us; we raise no provisions, except a small quantity of rice, for exportation. The production of our lands lies on our hands. We have suffered, and now suffer; yet we have not complained. The fears of the Southern States particularly have been addressed by the gentleman from Connecticut, by a declaration that Great Britain, whose fleets cover the ocean, will certainly find a source from which to procure supplies of those raw materials which she has heretofore been in the habit of receiving from us; and that having thus found another market, when we have found the evil of our ways, she will turn a deaf ear to us. By way of exemplification, the gentleman cited a familiar example of a man buying butter from his neighbors. It did not appear to me that this butter story received a very happy elucidation. In the country in which he lives there are so many buyers and so many sellers of butter, that no difficulty results from a change of purchasers or customers. Not so with our raw material. Admitting that Britain can find other markets with ease, there is still a great distinction between this and the gentleman's butter case. When a man sells butter he receives money or supplies in payment for it. His wants and wishes and those of his purchasers are so reciprocal, that no difficulty can ever arise. But Great Britain must always purchase raw materials of those who purchase her manufactures. It is not to oblige us that she takes our raw materials, but it is because we take her manufactures in exchange. So long as this state of things continues, so long they will continue to resort to our market. I have considered the gentleman's argument on this point as applied to the feelings of the Southern country. No article exported from the United States equals cotton in amount. If then we are willing to run the risk, I trust no other part of the United States will hesitate on this subject. Another reason offered by the gentleman from Connecticut, and a substantial one if true, is, that this measure cannot be executed. If this be the case, it is certainly in vain to persevere in it, for the non-execution of any public law must have a bad tendency on the morals of the people. But the facility with which the gentleman represents these laws to have been evaded, proves that the morals of the evaders could not have been very sound when the measure was adopted; for a man trained to virtue will not, whatever facility exists, on that account, step into the paths of error and vice. Although I believe myself that this measure has not been properly executed, nor in that way in which the situation of our country might reasonably have induced us to expect, yet it has been so far executed as to produce some good effect. So far as the orders and decrees remain in full force, so far it has failed of the effect hoped from it. But it has produced a considerable effect, as I shall attempt to show hereafter. In commenting on this part of the gentleman's observations, it becomes proper to notice, not an insinuation, but a positive declaration that the secret intention of laying the embargo was to destroy commerce; and was in a state of hostility to the avowed intention. This certainly is a heavy charge. In a Government like this, we should act openly, honestly, and candidly; the people ought to know their situation, and the views of those who conduct their affairs. It is the worst of political dishonesty to adopt a measure, and offer that reason as a motive for it which is not the true and substantial one. The true and substantial reason for the embargo, the gentleman says he believes, was to destroy commerce, and on its ruins to raise up domestic manufactures. This idea, I think, though not expressly combated by the observations of the gentleman from Delaware, (Mr. WHITE,) was substantially refuted by him. That gentleman, with great elegance and something of sarcasm, applied to the House to know how the Treasury would be filled in the next year; and observed that the "present incumbent of the Presidential palace" would not dare to resort to a direct tax, because a former Administration had done so and felt the effects of it, insinuating that the present Administration did not possess courage enough to attempt it. Now, I ask, if they dare not resort to a direct tax, excise laws, and stamp acts, where will they obtain money? In what way will the public coffers be filled? The gentleman must acknowledge that all our present revenue is derived from commerce, and must continue to be so, except resort be had to a direct tax, and the gentleman says we have not courage enough for that. The gentleman from Connecticut must suppose, if the gentleman from Delaware be correct, that the Administration seeks its own destruction. We must have revenue, and yet are told that we wish to destroy the only way in which it can be had, except by a direct tax; a resort to which, it is asserted, would drive us from the public service. But we are told, with a grave face, that a disposition is manifested to make this measure permanent. The States who call themselves commercial States, when compared with the Southern States, may emphatically be called manufacturing States. The Southern States are not manufacturing States, while the great commercial States are absolutely the manufacturing States. If this embargo system were intended to be permanent, those commercial States would be benefited by the exchange, to the injury of the Southern States. It is impossible for us to find a market for our produce but by foreign commerce; and whenever a change of the kind alluded to is made, that change will operate to the injury of the Southern States more than to the injury of the commercial States, so called. But another secret motive with which the Government is charged to have been actuated is, that this measure was intended and is calculated to promote the interests of France. To be sure none of the gentlemen have expressly said that we are under French influence, but a resort is had to the exposé of the French Minister, and a deduction thence made that the embargo was laid at the wish of Bonaparte. The gentleman from Connecticut told us of this exposé for this purpose; and the gentleman from Massachusetts appeared to notice it with the same view. Now we are told that there is no danger of war, except it be because we have understood that Bonaparte has said there shall be no neutrals; and that, if we repeal the embargo, we may expect that he will make war on us. And this is the only source from whence the gentleman could see any danger of war. If this declaration against neutrality which is attributed to the Gallic Emperor be true, and it may be so, his Gallic Majesty could not pursue a more direct course to effect his own wishes than to declare that our embargo had been adopted under his influence. And unless the British Minister had more political sagacity than the gentleman who offered the evidence of the exposé in proof of the charge, it would produce the very end which those gentlemen wished to avoid--a war with Great Britain; for she would commence the attack could she believe this country under the influence of France. I would just as much believe in the sincerity of that exposé, as Mr. Canning's sincerity, when he says that his Majesty would gladly make any sacrifice to restore to the commerce of the United States its wonted activity. No man in the nation is silly enough to be gulled by these declarations; but, from the use made of them, we should be led to think otherwise, were it not for the exercise of our whole stock of charity. Now, I cannot believe that any man in this nation does believe in the sincerity of Mr. Canning's expressions, or that Bonaparte believes that the embargo was laid to promote his interest. I cannot believe that there is any man in this nation who does candidly and seriously entertain such an opinion. The gentleman from Massachusetts says it is true that a considerable alarm was excited in England when the news of the embargo arrived there; that they had been led to believe, from their writers and speakers, that a discontinuance of their intercourse with this country would be productive of most injurious consequences; but that they were now convinced that all their writers and statesmen were mistaken, and that she can suffer a discontinuance of intercourse without being convulsed or suffering at all. To believe this requires a considerable portion of credulity, especially when the most intelligent men affirm to the contrary. In the last of March or the first of April last, we find, on an examination of merchants at the Bar of the British House of Commons, that the most positive injury must result from a continuance of non-intercourse. It is not possible that our merchants on this side of the water, however intelligent they may be, can be as well acquainted with the interests of Great Britain as her most intelligent merchants. This alarm, however, the gentleman has told us, continued through the spring and dissipated in the summer. It is very easy to discover the cause of the dissipation of this alarm. It was not because the loss of intercourse was not calculated to produce an effect, but it proceeded from an adventitious cause, which could not have been anticipated--the revolution in Spain; and there is no intelligent man who will not acknowledge its injurious effects on our concerns. No sooner did the British Ministers see a probability that the struggle between the Spanish patriots and France would be maintained, than they conceived hopes that they might find other supplies; and then they thought they might give to the people an impulse by interesting the nation in the affairs of Spain, which would render lighter the effects of our embargo. This is the cause of the change in Mr. Canning's language; for every gentleman in the House knows that a very material change took place in it in the latter part of the summer. If then the embargo has not produced the effects calculated from it, we have every reason to believe that its failure to produce these effects has been connected with causes wholly adventitious, and which may give way if the nation adheres to the measure. If, however, there be any probability that these causes will be continued for a long time, we ought to abandon it. I am not in favor of continuing any measure of this kind, except there be a probability of its producing some effect on those who make it necessary for us to exercise this act of self-denial. When I first saw the account of the revolution in Spain, my fears were excited lest it should produce the effect which it has done. As soon as I saw the stand made by the Spanish patriots, I was apprehensive that it might buoy up the British nation under the sufferings arising from the effects of their iniquitous orders, which, compared with the sufferings which we ourselves have borne, have been as a hundred to one. If there be evidence that the effects of this measure will yet be counteracted by recent events in Spain, I will abandon it, but its substitute should be war, and no ordinary war--I say this notwithstanding the petitions in the other branch of the Legislature, and the resolutions of a State Legislature which have lately been published. When I read the resolutions, called emphatically the Essex resolutions, I blush for the disgrace they reflect on my country. We are told there that this nation has no just cause of complaint against Great Britain; and that all our complaints are a mere pretext for war. I blush that any man belonging to the great American family should be so debased, so degraded, so lost to every generous and national feeling, as to make a declaration of this kind. It is debasing to the national character. How are these orders and decrees to be opposed but by war, except we keep without their reach? If the embargo produces a repeal of these edicts, we effect it without going to war. Whenever we repeal the embargo we are at war, or we abandon our neutral rights. It is impossible to take the middle ground, and say that we do not abandon them by trading with Great Britain alone. You must submit, or oppose force to force. Can arming our merchant vessels, by resisting the whole navy of Great Britain, oppose force to force? It is impossible. The idea is absurd. By way of ridiculing the embargo, the gentleman from Connecticut, in his familiar way, has attempted to expose this measure. He elucidated it by one of those familiar examples by which he generally exemplifies his precepts. He says your neighbor tells you that you shall not trade with another neighbor, and you say you will not trade at all. Now this, he says, is very magnanimous, but it is a kind of magnanimity with which he is not acquainted. Now let us see the magnanimity of that gentleman, and see if it savors more of true magnanimity than our course. Great Britain and France each say that we shall not trade with the other. We say we will not trade with either of them, because we believe our trade will be important to both of them. The gentleman says it is a poor way of defending the national rights. Suppose we pursue his course. Great Britain says we shall not trade to France; we say we will not, but will obey her. We will trade upon such terms as she may impose. "This will be magnanimity indeed; this will be defending commerce with a witness!" It will be bowing the neck to the yoke. The opposition to taxation against our consent, at the commencement of the Revolution, was not more meritorious than the opposition to tribute and imposition at the present day. I cannot, for my soul, see the difference between paying tribute and a tacit acquiescence in the British Orders in Council. True, every gentleman revolts at paying tribute. But where is the difference between that and suffering yourself to be controlled by the arbitrary act of another nation? If you raise the embargo you must carry your produce to Great Britain and pay an arbitrary sum before you can carry it elsewhere. If it remains there, the markets will be glutted and it will produce nothing. For it appears, from the very evidence to which I have before alluded, that at least four-fifths of our whole exports of tobacco must go to England and pay a tax before we could look for a market elsewhere, and that out of seventy-five thousand hogsheads raised in this country, not more than fifteen thousand are consumed in Great Britain. Where does the remainder usually go? Why, to the ports of the Continent. I ask, then, if the whole consumption of Great Britain be but fifteen thousand hogsheads, if an annual addition of sixty thousand hogsheads be thrown into that market, would it sell for the costs of freight? Certainly not. The same would be the situation of our other produce. The gentleman from Delaware (Mr. WHITE) has said, that, by repealing the embargo, we can now carry on a safe and secure trade to the extent of nearly four-fifths of the amount of our domestic productions. There is nothing more delusive, and better calculated to impose on those who do not investigate subjects, than these calculations in gross. If the gentleman will take the trouble to make the necessary inquiries, he will find that instead of Great Britain taking to the amount he supposes of our domestic productions, she takes nothing like it. It is true that a large proportion of our domestic exports is shipped ostensibly for Great Britain; but it is equally true that a very large proportion of these very exports find their way into the continental ports. For the British merchants in their examination before the House of Commons, already alluded to, say that three-fourths of their receipts for exportation to the United States have been usually drawn from the Continent; and that even if the embargo was removed and the Orders in Council were continued, they must stop their exportation, because the continental ports would be closed against American vessels; because their coasts swarm with English cruisers, the French must know that the American vessels attempting to enter have come from an English port. That they had facilities of conveyance to the Continent prior to the Orders in Council, the merchants acknowledged; and when requested to explain the mode of conveyance, they begged to be excused. No doubt every gentleman has seen these depositions, or might have seen them, for they have been published in almost every paper on the Continent. They have opened to me and to my constituents a scene perfectly new. They tell you that the Berlin decree was nothing. Notwithstanding that decree, they had a facility of conveying produce into the continental ports; but the Orders of Council completely shut the ports of the Continent against the entrance of American vessels. On this point there was no contrariety of opinion; and several of these merchants declared that they had sent vessels to the Continent a very few days before the date of the Orders of Council. This clearly shows that any conclusion to be drawn from the gross amount of exports must be fallacious, and that probably three-fourths ought to be deducted from the gross amount. This statement of the gentleman from Delaware, which holds out to the public the prospect of a lucrative trade in four-fifths of their exports, will certainly have a tendency to render them uneasy under the privations which they are called upon to suffer by the iniquitous measures of foreign nations. Although the statement was extremely delusive, I do not say that the gentleman meant to delude by it. This, however, being the effect of the gentleman's assertion, I am certainly warranted in saying that the evidence of the British merchants who carry on this trade, is better authority than the gentleman's statements. But admit, for the sake of argument, and on no other ground would I admit it, that these gross statements are correct; and that, at the time the embargo was adopted, these Orders in Council notwithstanding, the trade of the United States could have been carried on to this extent. What security have we, if the embargo had not been laid, after submitting and compromitting the national dignity and independence, that the British aggressions and Orders in Council would have stopped at the point at which we find them? Have we not conclusive evidence to the contrary? Are we not officially notified that the French leeward islands are declared by proclamation in a state of blockade? And do we not know that this is but carrying into effect a report of the committee of the British House of Commons on the West India Islands, in which this measure is recommended, and in which it is stated that His Britannic Majesty's West India subjects ought to receive further aid by placing these islands in a state of blockade? I can see in this measure nothing but a continuation of the system recommended last winter in this report, and published--for the information of the United States, I suppose. If the embargo should be repealed, and our vessels suffered to go out in the face of the present orders in Council and blockading decrees and proclamations, Mr. C. said, they would but expose us to new insults and aggressions. It was in vain to talk about the magnanimity of nations. It was not that magnanimity which induced nations as well as men to act honestly; and that was the best kind of magnanimity. The very magnanimity which had induced them to distress our commerce, would equally induce them to cut off the pitiful portion they had left to us. In a general point of view, there was now no lawful commerce. No vessel could sail from the United States without being liable to condemnation in Britain or France. If they sailed to France, Mr. C. said, they were carried into Britain; if they sailed to Britain, they were carried into France. Now, he asked, whether men who had any regard to national honor would consent to navigate the ocean on terms so disgraceful? We must be cool calculators, indeed, if we could submit to disgrace like this! The last reason offered by the supporters of the present resolution, Mr. C. said, may properly be said to be an argument _in terrorem_. The gentleman from Massachusetts says, by way of abstract proposition, that a perseverance in a measure opposed to the feelings and interests of the people may lead to opposition and insurrection; but the gentleman from Connecticut uses the same expressions as applicable to the embargo. It may be a forcible argument with some gentlemen, and most likely may have had its effect on those who intended it to produce an effect on others. But I trust that this House and this nation are not to be addressed in this way. Our understandings may be convinced by reason, but an address to our fears ought to be treated with contempt. If I were capable of being actuated by motives of fear, I should be unworthy of the seat which I hold on this floor. If the nation be satisfied that any course is proper, it would be base and degrading to be driven from it by the discordant murmurs of a minority. We are cautioned to beware how we execute a measure with which the feelings of the people are at war. I should be the last to persist in a measure which injuriously affected the interest of the United States; but no man feels more imperiously the duty of persevering in a course which is right, notwithstanding the contrary opinion of a few; and though I may regret and respect the feelings of these few, I will persist in the course which I believe to be right, at the expense even of the Government itself. Mr. MITCHILL said he was not prepared to vote on the question of repealing the embargo laws, in the precise form in which it had been brought before the Senate. There was as yet a want of information; for certain additional documents, expected from the Executive, had not yet been communicated, and the select committee to which the part of the Message concerning the foreign relations of the country was lately referred, had not brought forward a report. He would have been better pleased if the proposition had been so framed as to have expressed indignation at the injuries our Government had received from foreign nations. Then he would cheerfully have given it his concurrence. But now, when those who are willing to do something, though not exactly what the motion proposes, are made to vote directly against a removal of the existing restrictions upon our commerce, their situation is rather unpleasant; indeed, it is unfair, inasmuch as they must either give their assent to a measure, to the time and manner of which they may be averse, or they must vote negatively in a case which, but for some incidental or formal matter, would have met their hearty approbation. He could, therefore, have wished that the question had been presented to the House in such terms as to afford an opportunity of expressing their sense of the wrongs our nation had endured from foreign Sovereigns, and of the restrictions laid upon American commerce by their unjust regulations, as well as on the further restrictions that, under the pressure of events, it had been thought necessary for our own Legislature to impose. I now come to the year 1806, an eventful year to the foreign commerce of our people. An extravagant and armed trade had for a considerable time been carried on by some of our citizens with the emancipated or revolted blacks of Hayti. The French Minister, conformably to the instructions of his Government, remonstrated against this traffic as ungracious and improper; and under an impression that our citizens ought to be restrained from intercourse with the negroes of Hispaniola, Congress passed an act forbidding that altogether. This was the second time that our Government circumscribed the commercial conduct of its citizens. It was also during this year that memorials were forwarded to the Executive and legislative branches of our Government by the merchants of our principal seaports, stating the vexations of their foreign commerce to be intolerable, and calling in the most earnest terms for relief or redress. These addresses were mostly composed with great ability; it seemed as if the merchants were in danger of total ruin. Their situation was depicted as being deplorable in the extreme. The interposition of their Government was asked in the most strenuous and pressing terms; and your table, Mr. President, was literally loaded with petitions. The chief cause of this distress was briefly this: These citizens of the United States were engaged during the war in Europe, in a commerce with enemies' colonies not open in time of peace; by this means, the produce of the French West Indies was conveyed under the neutral flag to the mother country. Great Britain opposed the direct commerce from the colony to France through the neutral bottom. The neutral then evaded the attempt against him by landing the colonial produce in his own country, and after having thus neutralized or naturalized it, exported it under drawback for Bordeaux or Marseilles; this proceeding was also opposed by the British, and much property was captured and condemned in executing their orders against it. Their writers justified their conduct by charging fraud upon the neutral flag, and declaring that under cover of them a "war in disguise" was carried on, while on our side the rights of neutrals were defended with great learning and ability in a most profound investigation of the subject. This same year was ushered in by a proclamation of General Ferrand, the French commandant at St. Domingo, imposing vexations on the trade of our citizens; and a partial non-importation law was enacted against Great Britain by Congress about the middle of April. But these were not all the impediments which arose. Notices were given to the American Minister in London of several blockades. The chief of these was that of the coast, from the Elbe to Brest inclusive, in May. And here, as it occurs to me, may I mention the spurious blockade of Curaçoa, under which numerous captures were made. And lastly, to complete the catalogue of disasters for 1806, and to close the woful climax, the French decree of Berlin came forth in November, and, as if sporting with the interests and feelings of Americans, proclaimed Great Britain and her progeny of isles to be in a state of blockade. Hopes had been entertained that such a violent and convulsed condition of society would not be of long duration. Experience, however, soon proved that the infuriate rage of man was as yet unsatisfied, and had much greater lengths to go. For early in the succeeding year (1807), an order of the British Council was issued, by which the trade of neutrals, and of course of American citizens, was interdicted from the port of one belligerent to the port of another. And in the ensuing May, the rivers Elbe, Weser, and Ems, with the interjacent coasts were declared by them to be in a state of blockade, and a similar declaration was made on their part to neutrals in regard to the straits of the Dardanelles and the city of Smyrna. But these were but subordinate incidents in this commercial drama; the catastrophe of the tragedy was soon to be developed. "On the 22d of June, by a formal order from a British Admiral, our frigate Chesapeake, leaving her port for a distant service, was attacked by one of these vessels, which had been lying in our harbors under the indulgence of hospitality, was disabled from proceeding, had several of her crew killed, and four taken away." Immediately the President by proclamation interdicted our harbors and waters to all British armed vessels, and forbade intercourse with them. Under an uncertainty how far hostilities were intended, and the town of Norfolk being threatened with an immediate attack, a sufficient force was ordered for the protection of that place, and such other preparations commenced and pursued as the prospect rendered proper. In furtherance of these schemes, a proclamation was published, holding all their absent seamen to their allegiance, recalling them from foreign services, and denouncing heavy penalties for disobedience. The operation of this upon the American merchant service would have been very sensibly felt. Many British born subjects were in the employ of our merchants, and that very Government, which claimed as a British subject every American citizen who had been but two years a seaman in their service, refused to be bound by their own rule in relation to British subjects who had served an equal term on board the ships of the United States. But this was not all. The month of November was distinguished by an order retaliating on France a decree passed by her some time before, declaring the sale of ships by belligerents to be illegal; and thus, by virtue of concurrent acts of these implacable enemies, the poor neutral found it impossible to purchase a ship either from a subject of Great Britain or of France. That season of gloom was famous, or rather infamous, for another act prohibiting wholly the commerce of neutrals with the enemies of Great Britain, and for yet another, pregnant with the principles of lordly domination on their part, and of colonial vassalage on our, by which the citizens of these independent and sovereign States are compelled to pay duties on their cargoes in British ports, and receive licenses under the authority of that Government, as a condition of being permitted to trade to any part of Europe in possession of her enemies. This outrageous edict on the part of Britain was succeeded by another on the side of France, equalling, or if possible, surpassing it in injustice. In December came forth the decree of Milan, enforcing the decree of Berlin against American trade; dooming to confiscation every vessel of the United States that had been boarded or even spoken to by a Briton, and encouraging, by the most unjustifiable lures, passengers and sailors to turn informers. The abominable mandate was quickly echoed in Spain, and sanctioned by the approbation of His Most Catholic Majesty. It has been executed with shocking atrocity. In addition to other calamities, the property of neutrals has been sequestered in France, and their ships burned by her cruisers on the ocean. Such, Mr. President, was the situation of the European world, when Congress deemed it necessary to declare an embargo on our own vessels. Denmark and Prussia, and Russia, and Portugal, had become associated or allied with France; and, with the exception of Sweden, the commerce of our citizens was prohibited, by the mutually vindictive and retaliating belligerents, from the White Sea to the Adriatic. American ships and cargoes were declared the prize and plunder of the contending powers. The widely-extended commerce of our people was to be crushed to atoms between the two mighty millstones, or prudently withdrawn from its dangerous exposure, and detained in safety at home. Policy and prudence dictated the latter measure. And as the ocean was become the scene of political storm and tempest, more dreadful than had ever agitated the physical elements, our citizens were admonished to partake of that security for their persons and property, in the peaceful havens of their country, which they sought in vain on the high seas and in European harbors. The regulations, so destructive to our commerce, were not enacted by us. They were imposed upon us by foreign tyrants. Congress had no volition to vote upon the question. In the shipwreck of our trade, all that remained for us to do, was to save as much as we could from perishing, and as far as our efforts would go, to prevent a total loss. I touch, with a delicate hand, the mission of Mr. Rose. The arrival of this Envoy Extraordinary from Britain was nearly of the same date with an order of his Government, blockading Carthagena, Cadiz, and St. Lucar, and the intermediate ports of Spain, and thereby vexing the commerce of American citizens. The unsuccessful termination of his negotiation has been but a few months since followed by a refusal on the part of his Government to rescind its orders, that work so much oppression to our commerce, on condition of having the embargo suspended in respect to theirs. And the French Ministry has treated a similar friendly and specific overture, from our Executive, with total disregard. In addition to all which we learn, from the highest source of intelligence, that the British naval commander at Barbadoes did, about the middle of October, declare the French leeward Caribbean Islands to be in a state of strict blockade, and cautioning neutrals to govern themselves accordingly, under pain of capture and condemnation. THURSDAY, November 24. _The Embargo._ Mr. GILES addressed the Senate: Mr. President: Having during the recess of Congress retired from the political world, and having little agency in the passing political scenes, living in a part of the country, too, where there is little or no difference in political opinions, and where the embargo laws are almost universally approved, I felt the real want of information upon the subject now under discussion. I thought I knew something of the general objects of the embargo laws, and I had not been inattentive to their general operations upon society, as far as I had opportunities of observing thereupon. When I arrived here, and found that this subject had excited so much sensibility in the minds of many gentlemen I met with, as to engross their whole thoughts, and almost to banish every other topic of conversation, I felt also a curiosity to know what were the horrible effects of these laws in other parts of the country, and which had escaped my observation in the part of the country in which I reside. Of course, sir, I have given to the gentlemen, who have favored us with their observations on both sides of the question under consideration, the most careful and respectful attention, and particularly to the gentlemen representing the eastern section of the Union, where most of this sensibility had been excited. I always listen to gentlemen from that part of the United States with pleasure, and generally receive instruction from them; but on this occasion, I am reluctantly compelled to acknowledge, that I have received from them less satisfaction and less information than usual; and still less conviction. It was hardly to have been expected, Mr. President, that after so many angry and turbulent passions had been called into action, by the recent agitations throughout the whole United States, resulting from the elections by the people, to almost all the important offices within their gift, and particularly from the elections of electors for choosing the President and Vice President of the United States, that gentlemen would have met here perfectly exempt from the feelings which this state of things was naturally calculated to inspire. Much less was it to have been expected, sir, that gentlemen who had once possessed the power of the nation, and who, from some cause or other, had lost it; (a loss, which they now tell us they _but too well remember_, and I fear, might have added, _too deeply deplore_,) gentlemen too, sir, who at one time during the electioneering scene had indulged the fond and delusive hope, that through the privations necessarily imposed upon our fellow-citizens, by the unexampled aggressions of the belligerent powers, they might once more find their way to office and power, and who now find themselves disappointed in this darling expectation--it was not at all to be expected, sir, that these gentlemen should now appear here, perfectly exempt from the unpleasant feelings which so dreadful a disappointment must necessarily have produced. It was a demand upon human nature for too great a sacrifice; and however desirable such an exemption might have been at the present moment, and however honorable it would have been to those gentlemen, it was not expected. But, sir, I had indulged a hope that the extraordinary dangers and difficulties pressed upon us by the aggressing belligerents, attended, too, with so many circumstances of indignity and insult, would have awakened a sensibility in the bosom of every gentleman of this body, which would have wholly suppressed, or at least suspended, these unpleasant feelings, until some measures, consulting the general interests and welfare of the people, could have been devised, to meet, resist, and if possible, to subdue the extraordinary crisis. But, sir, even in this hope, too, I have been totally disappointed. I was the more encouraged in this hope, when upon opening this debate the gentleman from Connecticut (Mr. HILLHOUSE) seemed sensible of this sacred obligation, imposed by the crisis; when he exhorted us, in conducting our deliberations, utterly to discard the influence of party spirit. It would have given me great pleasure, sir, if the gentleman had afforded us a magnanimous example of a precept so admirably suited to the present state of things. But in this too, sir, I have been unfortunately disappointed. That gentleman's observations consisted almost exclusively of retrospective animadversions upon the original objects and horrible effects of the embargo laws, without seeming to think it was worth his attention to favor us with any reflections upon the prospective course of measures which the people's interests, the public safety, and general welfare, so imperiously demand. That gentleman represented the embargo laws as mere acts of volition, impelled by no cause nor necessity; whilst the British orders, and French edicts, were scarcely glanced at, and certainly formed the least prominent feature of his observations. He represented these laws as a wanton and wicked attack upon commerce, with a view to its destruction, whilst he seemed scarcely to have recollected the extraordinary dangers and difficulties which overspread the ocean--indeed, sir, he described the ocean as perfectly free from dangers and difficulties, unruffled by any storms, and that we had nothing to do but to unfurl our canvas to the wind, that it would be filled with prosperous gales, and wafted to the ports of its destination, where it would be received with open arms of friendship and hospitality. I wish, sir, with all my heart, the gentleman could but realize these dreaming visions; their reality would act like a, magic spell upon the embargo laws, and dissipate them in a moment! But, alas! sir, when we come to look at realities, when we turn our eyes upon the real dangers and difficulties which do overspread the ocean, we shall find them so formidable, that the wisdom of our undivided counsels, and the energy of our undivided action, will scarcely be sufficient to resist and conquer them. To my great regret, sir, we now see, that the United States cannot even hope to be blessed with this union of mind and action, although certainly their dearest interests demand it. Mr. President, perhaps the greatest inconvenience attending popular governments, consists in this: that whenever the union and energy of the people are most required to resist foreign aggressions, the pressure of these aggressions presents most temptations to distrusts and divisions. Was there ever a stronger illustration of the truth and correctness of this observation than the recent efforts made under the pressure of the embargo laws? The moment the privations, reluctantly but necessarily imposed by these laws, became to be felt, was the moment of signal to every political demagogue, who wished to find his way to office and to power, to excite the distrusts of the people, and then to separate them from the Government of their choice, by every exaggeration which ingenuity could devise, and every misrepresentation which falsehood could invent: nothing was omitted which it was conceived would have a tendency to effect this object. But, Mr. President, the people of the United States must learn the lesson now, and at all future times, of disrespecting the bold and disingenuous charges and insinuations of such aspiring demagogues. They must learn to respect and rally round their own Government, or they never can present a formidable front to a foreign aggressor. Sir, the people of the United States have already learnt this lesson. They have recently given an honorable and glorious example of their knowledge in this respect. They have, in their recent elections, demonstrated to the nation and to the world that they possess too much good sense to become the dupes of these delusive artifices, and too much patriotism to desert their Government when it stands most in need of their support and energy. The gentleman from Connecticut (Mr. HILLHOUSE) has made the most strict, and I had almost said, uncharitable scrutiny into the objects and effects of the embargo laws, in the delusive hope, I presume, of obtaining a triumph over his political adversaries. I propose to follow the gentleman, in a fair and candid comparison of information and opinions upon this subject; and I shall do so in the most perfect confidence, that whenever a thorough examination of the objects and effects of the embargo laws shall be made known, and the merits of the measure fully understood, that there is not a man in the United States who will not applaud and support the Administration for its adoption, who has the uncontaminated heart of an American throbbing within his bosom. Sir, I have always understood that there were two objects contemplated by the embargo laws. The first, precautionary, operating upon ourselves. The second, coercive, operating upon the aggressing belligerents. Precautionary, in saving our seamen, our ships, and our merchandise, from the plunder of our enemies, and avoiding the calamities of war. Coercive, by addressing strong appeals to the interests of both the belligerents. The first object has been answered beyond my most sanguine expectations. To make a fair and just estimate of this measure, reference should be had to our situation at the time of its adoption. At that time, the aggressions of both the belligerents were such, as to leave the United States but a painful alternative in the choice of one of three measures, to wit, the embargo, war, or submission. I know that this position has not been admitted, though but faintly denied in the discussion. I shall however proceed upon this hypothesis for the present, and in the course of my observations will prove its correctness by the statements of the gentlemen in favor of the resolution. Before the recommendation of the measure, the laudable and provident circumspection of the Administration had obtained tolerably correct estimates of the amount and value of the ships and merchandise belonging to the citizens of the United States then afloat, and the amount and value of what was shortly expected to be afloat; together with a conjectural statement of the number of the seamen employed in the navigation thereof. It was found that merchandise to the value of one hundred millions of dollars was actually afloat, in vessels amounting in value to twenty millions more. That an amount of merchandise and vessels equal to fifty millions of dollars more, was expected to be shortly put afloat, and that it would require fifty thousand seamen to be employed in the navigation of this enormous amount of property. The Administration was informed of the hostile edicts of France previously issued, and then in a state of execution, and of an intention on the part of Great Britain to issue her orders, the character and object of which were also known. The object was, to sweep this valuable commerce from the ocean. The situation of this commerce was as well known to Great Britain as to ourselves, and her inordinate cupidity could not withstand the temptation of the rich booty she vainly thought within her power. This was the state of information at the time this measure was recommended. The President of the United States, ever watchful and anxious for the preservation of the persons and property of all our fellow-citizens, but particularly of the merchants, whose property is most exposed to danger, and of the seamen whose persons are also most exposed, recommended the embargo for the protection of both; and it has saved and protected both. Let us now suppose, for a moment, that the President, possessed of this information, had not apprised the merchants and seamen of their danger, and had recommended no measure for their safety and protection; would he not in that case have merited and received the reproaches which the ignorance or ingratitude of merchants and others have so unjustly heaped upon him, for his judicious and anxious attentions to their interests? It is admitted by all, that the embargo laws have saved this enormous amount of property, and this number of seamen, which, without them, would have forcibly gone into the hands of our enemies, to pamper their arrogance, stimulate their injustice, and increase their means of annoyance. I should suppose, Mr. President, this saving worth some notice. But, sir, we are told that instead of protecting our seamen, it has driven them out of the country, and into foreign service. I believe, sir, that this fact is greatly exaggerated. But, sir, suppose for a moment that it is so, the Government has done all, in this respect, it was bound to do. It placed these seamen in the bosoms of their friends and families, in a state of perfect security; and if they have since thought proper to abandon these blessings, and emigrate from their country, it was an act of choice, not of necessity. But, what would have been the unhappy destiny of these brave tars, if they had been permitted to have been carried into captivity, and sent adrift on unfriendly and inhospitable shores? Why, sir, in that case, they would have had no choice; necessity would have driven them into a hard and ignominious service, to fight the battles of the authors of their dreadful calamities, against a nation with which their country was at peace. And is the bold and generous American tar to be told, that he is to disrespect the Administration for its anxious and effectual attentions to his interests? for relieving him from a dreadful captivity? Even under the hardships he does suffer, and which I sincerely regret, every generous feeling of his noble heart would repel the base attempt with indignation. But, sir, the American seamen have not deserted their country; foreign seamen may and probably have gone into foreign service; and, for one, I am glad of it. I hope they will never return; and I am willing to pass a law, in favor of the true-hearted American seamen, that these foreign seamen never should return. I would even prohibit them from being employed in merchant vessels. The American seamen have found employment in the country; and whenever the proper season shall arrive for employing them on their proper element, you will find them, like true birds of passage, hovering in crowds upon your shores. Whilst considering this part of the subject, I cannot help expressing my regret that, at the time of passing our embargo laws, a proportion of our seamen was not taken into the public service; because, in my judgment, the nation required their services, and it would have been some alleviation to their hardships, which the measure peculiarly imposed upon them, as a class of citizens, by affecting their immediate occupation; and the other classes, as well as the public Treasury, were able to contribute to their alleviation; and I am willing to do the same thing at this time. Indeed, its omission is the only regret I have ever felt, at the measures of the last Congress. I like the character--I like the open frankness, and the generous feelings of the honest American tar; and, whenever in my power, I am ready to give, and will with pleasure give him my protection and support. One of the most important and agreeable effects of the embargo laws, is giving these honest fellows a safe asylum. But, sir, these are not the only good effects of the embargo. It has preserved our peace--it has saved our honor--it has saved our national independence. Are these savings not worth notice? Are these blessings not worth preserving? The gentleman from Delaware (Mr. WHITE) has, indeed, told us, that under the embargo laws, the United States are bleeding at every pore. This, surely, sir, is one of the most extravagant effects that could have been ascribed to these laws by the frantic dreams of the most infatuated passions. Bloodletting is the last effect that I ever expected to hear ascribed to this measure. I thought it was of the opposite character; but it serves to show that nothing is too extravagant for the misguided zeal of gentlemen in the opposition. I have cast my eyes about in vain to discover those copious streams of blood; but I neither see nor hear any thing of them from any other quarter. So far from the United States bleeding at every pore, under the embargo, it has saved them from bleeding at any pore; and one of the highest compliments to the measure is, that it has saved us from the very calamity which the gentleman attributed to it; but which, thanks to our better stars and wiser counsels, does not exist. Mr. President, the eyes of the world are now turned upon us; if we submit to these indignities and aggressions, Great Britain herself would despise us; she would consider us an outcast among nations; she would not own us for her offspring: France would despise us; all the world would despise us; and what is infinitely worse, we should be compelled to despise ourselves! If we resist, we shall command the respect of our enemies, the sympathies of the world, and the noble approbation of our own consciences. Mr. President, our fate is in our own hands; let us have union and we have nothing to fear. So highly do I prize union, at this awful moment, that I would prefer any one measure of resistance with union, to any other measure of resistance with division; let us then, sir, banish all personal feelings; let us present to our enemies the formidable front of an indissoluble band of brothers, nothing else is necessary to our success. Mr. President, unequal as this contest may seem; favored as we are by our situation, and under the blessing of a beneficent Providence, who has never lost sight of the United States in times of difficulty and trial, I have the most perfect confidence, that if we prove true to ourselves, we shall triumph over our enemies. Deeply impressed with these considerations, I am prepared to give the resolution a flat and decided negative. FRIDAY, November 25. JOHN MILLEDGE, from the State of Georgia, attended. WEDNESDAY, November 30. _The Embargo._ Mr. PICKERING.--Mr. President: I am aware, sir, of the consequences of advancing any thing from which conclusions may be drawn adverse to the opinions of our own Administration, which, by many, are conceived to be indisputably just. Merely to state these questions, and to mention such arguments as the British Government may, perhaps, have urged in their support on her side, is sufficient to subject a man to the popular charge of being under British influence, or to the vulgar slander of being a "British tory." He will be fortunate to escape the accusation of touching British gold. But, sir, none of these things move me. The patrons of the miscreants who utter these slanders know better, but are, nevertheless, willing to benefit by the impression they may make on the minds of the people. From an early period of my life I was zealously engaged in every measure opposed to the attempts of Great Britain to encroach upon our rights, until the commencement of our Revolutionary war; and during its whole continuance, I was uninterruptedly employed in important civil or military departments, contributing all my efforts to bring that war to a successful termination. I, sir, am not the advocate of wrong-doers, to whatever country they belong, whether Emperors, or Kings, or the Administrators of a Republic. Justice is my object, and Truth my guide; and wherever she points the way I shall not fear to go. Great Britain has done us many wrongs. When we were Colonies, she attempted to deprive us of some of our dearest birth-rights--rights derived from our English ancestors, rights which we defended, and finally established, by the successful conclusion of the Revolutionary war. But these wrongs, and all the wounds of war, were intended to be obliterated and healed by the treaty of peace, when all enmities should have ceased. Great Britain wronged us in the capture and condemnation of our vessels under her orders of 1793, and she has made reparation for these wrongs, pursuant to a treaty, negotiated on practical principles by a statesman who, with liberal views and real candor, sought adjustment and reparation. MONDAY, December 12. _Enforcement of the Embargo Laws._ Mr. GILES, from the committee appointed the 11th of November last, on that part of the Message of the President of the United States which relates to the embargo laws, and the measures necessary to enforce due observance thereof, made a further report, in part, of a bill to authorize and require the President of the United States to arm, man, and fit out for immediate service, all the public ships of war, vessels, and gunboats of the United States; and the bill was read, and passed to the second reading. The bill is as follows: "_Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled_, That the President be, and he is hereby, authorized and required to cause to be fitted out, officered, manned, and employed, as soon as may be, all the frigates and other armed vessels of the United States, including gunboats; and to cause the frigates and armed vessels, so soon as they can be prepared for active service, respectively to be stationed at such ports and places on the seacoast as he may deem most expedient, or to cruise on any part of the coast of the United States, or territories thereof. "SEC. 2. _And be it further enacted_, That, for the purpose of carrying the foregoing provision into immediate effect, the President of the United States be, and is hereby, authorized and required, in addition to the number of petty officers, able seamen, ordinary seamen, and boys, at present authorized by law, to appoint, and cause to be engaged and employed as soon as may be, ---- midshipmen, ---- corporals of marines, ---- able seamen, ---- ordinary seamen and boys, which shall be engaged to serve for a period not exceeding ---- years, but the President may discharge the same sooner, if in his judgment their services may be dispensed with; and to satisfy the necessary expenditures to be incurred therein, a sum not exceeding ---- dollars be, and the same is hereby, appropriated, and shall be paid out of any moneys in the Treasury not otherwise appropriated." SATURDAY, December 17. The credentials of MICHAEL LEIB, appointed a Senator by the State of Pennsylvania, were presented and read, and ordered to lie on file. _Enforcement of the Embargo._ The Senate resumed the bill making further provision for enforcing the embargo. Mr. GOODRICH rose, and addressed the Senate as follows-- Mr. President: This bill, making further provision for enforcing the embargo, requires all our attention. We are not on ordinary business. An embargo for an indefinite period, over a great country like ours, abounding in rich staples and domestic products, and carrying on in its own vessels an extensive and profitable commerce, is a phenomenon in the civilized world. We are about entering on the second year of this novel measure, and even in defiance of the lessons which experience teaches, that without producing any beneficial results, it is embroiling the choicest interests of the nation. On foreign powers it has made no impression, and its ruinous effect on our own country, we see in the waste of private property and public revenue; in the discontents of our citizens; in the perplexed state of the public councils, and the increasing difficulties that are fast gathering round the Government. The friends of the embargo say, that it has been evaded and violated, but that when strictly enforced, it will compel foreign nations to respect our rights. Under these impressions, the system is to be maintained. To enforce it, the powers of the Government are to be put in array throughout our country, especially in places where discontents are manifested; and an extension is to be given to that system of arbitrary seizures of vessels, goods, merchandise, and domestic products, on suspicion of their being intended for exportation, which came in with the embargo laws, and has attended their execution. In all this, sir, I see nothing that is to conciliate the conflicting opinions and passions of our citizens, and restore concord amongst them. I see nothing that will invigorate the public councils, and resuscitate the dormant spirit and resources of the nation. To me it seems that the Administration, without presenting to public view any definite object or course, are pressing forward our affairs into a chaos of inextricable difficulties. And I cannot but regard this bill as holding a prominent place among the measures leading on that unfortunate issue. This bill bears marks of distrust entertained by the Government of the people, or a considerable portion of them, and of the State authorities; it places the coasting trade under further and vexatious restraints, as well as its general regulations under the control of the President. It intrenches on the municipal polity of the States, and the intercourse of the people in their ordinary business. And, what above all will wound the public sentiment, for the accustomed and mild means of executing the laws by civil process through the tribunals of justice, it substitutes military powers to be called out and exercised, not in aid, but in place, of the civil authorities. The coasting trade is placed under the regulation of the President by this bill: 1st. Collectors may refuse permission to put a cargo on board of any ship, vessel, or boat, in any case where they have their own personal suspicions that it is intended for foreign exportation, and in every case which may be comprehended within the scope of any general instructions, issued by command of the President. But there is a proviso as to coasting vessels uniformly employed in the navigation of bays, sounds, rivers, and lakes, which shall have obtained a general permission. 2d. General permissions may be granted to the last-mentioned vessels, under such general instructions as the President of the United States may give, when it can be done without danger of the embargo being violated, to take on board such articles as may be designated in such general permission or permissions. By these general instructions, the President may prescribe the kind and quantity of exports from, and imports into the individual States, and from and to the particular districts within a State. He may suspend them in part or in whole. The power of issuing general instructions now proposed to be given to the President by law, he exercised in the recess of Congress, and in my opinion, without law. The Governor of Massachusetts was authorized to give certificates, or licenses for the importation of flour into that State; and, under general instructions from the President, without personal suspicion of his own, the collector at Charleston, in South Carolina, detained a vessel; which called forth the independent exercise of the judicial power of the circuit court in that State, to control the President's instructions. I am sensible the Administration and its friends have an arduous task in executing the embargo; difficulties beset them on every side; difficulties inherent in the measure itself, and not to be overcome by accumulating rigorous penalties, and an extension of the Executive power. The power to regulate commerce is vested in Congress, and by granting it to the President, do we not transfer to him one of the most important and delicate of the legislative powers? What State would have adopted the constitution, if it had been foreseen that this power would be granted to any man, however distinguished by office? The sections I have considered, principally affect merchants and seafaring men in their business, at stores, custom-houses, about wharves, ships, and vessels. But other sections take a wider range, and intrench on the ordinary concerns of the great body of the people, by the powers they give for unreasonable and arbitrary searches for, and seizures of their property. Collectors of the customs throughout the United States, by the tenth section, are empowered to take into custody specie, or any articles of domestic growth or manufacture, under these circumstances, when deposited in unusual places, in unusual quantities, in places where there is reason to believe they are intended for exportation in vessels, sleighs, or other carriages, or in any manner apparently on their way towards the territories of foreign nations, or a place whence such articles are intended to be exported. And, when taken into custody, they are not permitted to be removed without bonds being given for their being relanded in some place whence, in the opinion of the collector, there is no danger of their being exported. Without warrant founded on proof, from suspicion only, may this unbounded license be exercised. Our houses, heretofore our castles, and the secure abodes of our families, may be thrown open to the visits of collectors to search for and seize our money and goods, whenever instigated by suspicion, prejudice, resentment, or party spirit. No place is to be protected; the people may every where be exposed, at home, on the way, and abroad. Specie and goods thus seized without warrant, and on suspicion only, are not to be removed unless and until bond with sureties shall be given for landing or delivering the same in some place of the United States, whence, in the opinion of the collector, there shall not be any danger of such articles being exported. These provisions strike at the vital principles of a free government; and are they not contrary to the fourth and sixth articles of amendments to the constitution? Are not these searches and seizures, without warrant, on the mere suspicion of a collector, unreasonable searches and seizures? And is not a man thereby to be deprived of property without due process of law? The military may be employed by such person as the President may have empowered. He may designate, at certain places in the States, persons to call out such part of the land or naval forces of the United States, or of the militia, as may be judged necessary. Those will be selected who are most convenient and in all respects qualified to act in the scenes to which they may be called. In these appointments the Senate is to have no concurrence. They are to be Presidential agents for issuing requisitions to the standing army, for militia, and not amenable to any tribunal for their conduct. Heretofore a delicate and respectful attention has been paid to the State authorities on this subject. The requisitions of the General Government for the militia have been made to the Governors of the States; and what reason is there for taking a different course to enforce the embargo? Under our present system have not insurrections been suppressed, rebellions quelled, and combinations and resistance against lawful authority overcome, by the force of the General Government in co-operation with the State Governments? Is not the authority of the marshals competent to the execution of the laws? I see no cause for these arrays of the military throughout the country, and the unrestrained license that is to be given to its operations. It is a fundamental principle of a free government, "that the military be kept in subordination to the civil power," and never be put in motion until those be found incompetent to preserve the public peace and authority. But, by the provisions of this bill, these Presidential agents may call out the standing army or militia, or part of them, to follow in the collector's train, to seize specie and goods in houses, stores, and elsewhere, and generally for executing the embargo laws. And even the public peace, so far as respects the suppressing armed and riotous assemblages of persons resisting the custom-house officers in the exercise of their duties, it would seem can no longer be confided to the States, and it is thought necessary to surround custom-house officers with bands of the standing army or militia. The bill before us is bottomed on a report of the Secretary of the Treasury. How often were his strenuous remonstrances, and those of the chairman of the committee who reported the bill, (Mr. GILES,) formerly heard against the extension of the Executive patronage and influence; the interference of the General Government in the local policy of the States, and, the ordinary concerns of the people; and, above all, against standing armies? Then no such Executive prerogatives were claimed as this bill contains; no such attempts made as here are made for intrenchments on the internal policy of the States, and the ordinary concerns of the people; and then our army, small in comparison with the present establishment, was kept aloof from the affairs of the State, and the persons and property of the citizens. Our country was happy, prosperous, and respected. The present crisis is portentous. Internal disquiets will not be healed, nor public sentiment controlled, by precipitate and rash measures. It is time for the public councils to pause. This bill, sir, ought not to pass. It strikes at the vital principles of our republican system. It proposes to place the country in a time of peace under military law, the first appearance of which ought here to be resisted with all our talents and efforts. It proposes to introduce a military despotism, to which freemen can never submit, and which can never govern except by terror and carnage. TUESDAY, December 20. _Enforcement of the Embargo._ Mr. GILES said, I am sensible that I owe an apology to the Senate, as chairman of the committee, for not having made an exposition of the objects and principles of the bill, reported for consideration, at an earlier stage of the discussion. This omission has not in the smallest degree been influenced by any apprehension, that these principles are indefensible; but, in some degree, from a desire to screen myself, as much as possible, from intermixing in discussions; a task which is never agreeable, but is at present peculiarly distressing and afflicting to my feelings. I also thought that the session had already been sufficiently fruitful of discussions intimately connected with the bill before us; and that the public interests, at this time, required action. I know, too, sir, that I owe an apology to the Senate, for the great number of amendments which, under their indulgence, has been made to this bill after it was first presented to their consideration. But, sir, you will find some apology in the intrinsic difficulty and delicacy of the subject itself, and also in the disposition manifested by the committee, to give to the objections made by the opponents of the bill, that respectful attention to which many of them were certainly entitled, and to accommodate its provisions, as far as possible, to the views of those gentlemen. After every effort, however, to effect this object, it still appears that the bill presents temptations for addressing the popular sensibility too strong to be resisted by gentlemen in the opposition. They have, accordingly, with great zeal and ability, described the provisions of the bill as dangerous and alarming to the rights and liberties of the people. This, sir, is the common course of opposition, and applies to every strong measure requiring the exercise of much Executive discretion. I think, however, I shall be able to show that there is no new principle contained in the provisions of that bill; but that every provision it contains is amply justified by precedents in pre-existing laws, which have not been found to be so destructive to the rights of the people, as gentlemen strenuously insist similar provisions in this bill will be, if they receive the sanction of law. In performing this task, I shall bring into view only such parts of the bill as have been objected to by gentlemen, presuming that, as their objections have evidently been the result of great industry and deliberation, all other parts of the bill remain unobjectionable. I shall also, perhaps, avoid some of the observations respecting minute details; apply my remarks generally to principles; and thus bring my observations and replies into as short a compass as possible. The gentleman from Connecticut (Mr. GOODRICH) commenced his remarks by declaring the embargo to be a permanent measure, deprecating its effects, as ruinous at home and ineffectual abroad. These observations have been repeatedly made by others, and already replied to by several gentlemen, as well as myself; and I am strengthened in the correctness of those replies by all the further reflections I have been enabled to bestow upon them. This part of the subject will, therefore, be passed over without further notice, except to remark, that perhaps one of the causes of the inefficacy of the measure abroad, has been the unprincipled violations of its provisions at home; and the great and leading object of the present bill is to prevent such violations. Upon this part of the subject I am happy to find that one of its most strenuous and judicious opposers (Mr. HILLHOUSE) has candidly informed the Senate, that the provisions of the bill are admirably calculated to effect that object--and if in their practical operation they should realize the character anticipated by that gentleman, I shall feel no regret for that portion of labor I have bestowed upon them. Indeed, I shall congratulate the committee as well as myself in having been so fortunate as to find a competent remedy for so great an evil. The gentleman from Connecticut (Mr. GOODRICH) informs us, that the public councils are pressing on to measures pregnant with the most alarming results. I hope the gentleman is mistaken in his apprehensions, and I should have been much pleased if the gentleman had been good enough to point them to a better course; but, sir, he has not done so, nor has any gentleman on the same side of the question. Indeed, sir, it would give me great pleasure to do something that would be agreeable to our Eastern friends; but, unfortunately, amidst all the intrinsic difficulties which press upon us, that seems to be not among the least of them. The gentlemen themselves will not explicitly tell us what would produce the effect--and I am inclined to think that nothing short of putting the Government in their hands would do it. Even this would not be exempt from difficulties. The gentlemen from that part of the United States are nearly equally divided among themselves respecting the proper course of measures to be pursued, and there is an immense majority in every other part of the United States, in favor of the measures proposed; we are therefore surrounded with real and intrinsic difficulties from every quarter, and those of a domestic nature are infinitely the most formidable, and most to be deprecated. Indeed, sir, under present circumstances, the administration of the Government cannot be a pleasant task; and, in my judgment, it requires a great effort of patriotism to undertake it, not on account of external pressures, but on account of internal discontents, stimulated, too, by so many artful intrigues. But for these unfortunate circumstances, every gentleman would feel an honorable pride in contributing his efforts to devise measures for repelling foreign aggressions, and he would court the responsibility attached to his station. I would not, Mr. President, give up a scintilla of that portion of the responsibility which the crisis imposes on me. Indeed, sir, to have the honor of bearing my full share of it, is the only inducement I have at this moment for occupying a place on this floor. Without that consideration I should now be in retirement. But when I turn my eyes upon internal divisions, discontents and violations of law, and am compelled to think of measures for their suppression, it produces the most painful sensations and distressing reflections. The great principle of objection, the gentlemen tell us, consists in the transfer of legislative powers to the Executive Department. This is an old an abstract question, often heretofore brought into view, and leads to endless discussion. I think I shall be able to show that the bill introduces no new principle in this respect, but only applies an established principle to new practical objects. The general principle of the separation of departments is generally admitted in the abstract; but the difficulties in this discussion arise from applying the principle to practical objects. The great difficulty exists in the attempt to fix on the precise boundary line between legislative and Executive powers in their practical operation. This is not possi-[1] You might attempt the search for the philosopher's stone, or the discovery of the perpetual motion, with as much prospect of success. The reason of this difficulty is, that the practical objects and events to which this abstract principle is attempted to be applied, are perpetually varying, according to the practical progression of human affairs, and therefore cannot admit of any uniform standard of application. This reflection might have saved the gentleman from Massachusetts (Mr. LLOYD) the trouble of reading to us the constitution or bill of rights of Massachusetts, in which the principle of separation of departments is very clearly and properly laid down, and which will be very readily assented to in the abstract, but which forms no part of the question in dispute. It cannot, however, escape observation, that this principle is not laid down, even in the abstract, in the Constitution of the United States; and, although it is the leading principle of the constitution, and probably was the principal guide in its formation, it is nevertheless in several respects departed from. This body partakes essentially both of the legislative and Executive powers of the Government. The Executive Department also partakes of the legislative powers, as far at least as an approbation of, and a qualified negative of the laws extend, &c. I make these observations, however, not in derogation of the general principle of the separation of powers among the several departments, so far as is practicable, but merely to show that there must necessarily be some limitations in its practical operation. Perhaps the best general rule for guiding our discretion upon this subject will be found to consist in this: That legislation ought to extend as far as definition is practicable--when definition stops, execution must necessarily begin. But some of the particular provisions of this bill will furnish more precise illustrations of my opinions upon this question; it will, therefore, be waived until I shall come to their consideration. I will now proceed to examine the more particular objections urged against the detail of this bill. Its provisions respecting the coasting trade are said to be objectionable in the following respects: First objection: The penalty of the bonds required, is said to be excessive. To enable us to decide correctly upon this point, the object proposed to be effected, and the penalty required, should be considered in reference to each other. The object is to prevent, by means of coasting vessels, domestic articles from being carried abroad. Flour, for instance, to the West Indies. The price of that article here is less than five dollars; in the West Indies it is said to be thirty and upward. The penalty of the bonds required is six times the amount of the value of the vessel and cargo. Is any gentleman prepared to say a smaller penalty will effect the object? I presume not. Indeed, the committee were disposed to put it at the lowest possible point, consistently with an effectuation of the object; and probably it is rather too low for that purpose. As to the penalty, according to the tonnage of vessels, it is believed no alteration in the existing laws is made in that respect. These penalties will appear the more reasonable, when it is recollected, that through the indulgence given of the coasting trade, most of the violations of the embargo laws have been contrived and effected. Second objection: The collectors may be influenced by party spirit in the exercise of their discretion. It is hoped that this will not be the case, and if it were, it would certainly be much to be regretted. It may, however, probably happen, and is one of the inconveniences of the system. Third objection: The high penalties of the bonds will drive many persons of small means from their accustomed occupations. They will not be able to procure the competent security for their prosecution. It is not to be presumed that this will be the effect to any great extent. If the owner is known to be honest, and has in view legal and honest objects, I have very little apprehension of his not being able to get the security required. But here the question recurs, are these apprehended inconveniences of such a nature as to render it necessary to abandon a great national object, for the accommodation of a few individuals who are affected by them? Is the last effort to preserve the peace of the nation, to be abandoned from these considerations? I should conclude, certainly not. The next objections are made to the seventh section of the bill, which provides that stress of weather, and other unavoidable accidents at sea, shall not be given in evidence in a trial at law to save the penalty of bonds given as security against the violation of the embargo laws. It is known that, through pretexts derived from this permission, at present, most of the violations of these laws have been committed with impunity--it is, therefore, important to the future execution of the laws, to take away these pretexts. But it is objected that this regulation manifests a distrust of oaths. It does, of what is called custom-house oaths; their violation is already almost proverbial; it does not, however, produce nor encourage this profligacy; it takes away the temptation to it. It is further said, it impairs the trial by jury--very far from it; the trial by jury still exists; this provision only regulates the evidence to be produced before the jury. Gentlemen state particular hardships which may take place under this regulation. It is easy to state possible hardships under any general regulation; but they have never been deemed sufficient objections to general regulations producing in other respects beneficial results. This bill, however, contains a provision for relief in all cases of hardships under the embargo laws. The Secretary of the Treasury is authorized to grant relief in all such cases. This power, vested in the Secretary, is also objected to. It is said to manifest a distrust of courts, and to transfer their powers to the Secretary of the Treasury. Whatever may be my distrust of some of the courts of the United States, I can say that consideration furnished no inducement to this provision. It is a power not suited to the organization of courts, and it has for a long time been exercised by the Secretary of the Treasury without being complained of. Congress proceeded with great caution on this subject. On the third day of March, 1797, they first introduced this principle into their laws in relation to the collection of the revenue; and, after an experiment of nearly three years, on the eleventh day of February, 1800, they made the law perpetual. This will appear from the 12th section of this bill, which merely borrows this provision from pre-existing laws. It introduces no new principle whatever. This doctrine is carried still further, by an act passed the 3d of March, 1807, in the eighth volume of the laws, page 318: "An Act to prevent settlements being made on lands ceded to the United States, until authorized by law. "And it shall moreover be lawful for the President of the United States to direct the Marshal, or officer acting as Marshal, in the manner hereinafter directed, and also to take such other measures, and to employ such military force as he may judge necessary and proper, to remove from lands ceded, or secured to the United States by treaty, or cession as aforesaid, any person or persons who shall hereafter take possession of the same, or make or attempt to make a settlement thereon, until authorized by law." Here the President is authorized to use the military force to remove settlers from the public lands without the intervention of courts; and the reason is, that the peculiarity of the case is not suited to the jurisdiction of courts, nor would their powers be competent to the object, nor, indeed, are courts allowed to interfere with any claims of individuals against the United States, but Congress undertakes to decide upon all such cases finally and peremptorily, without the intervention of courts. This part of the bill is, therefore, supported both by principle and precedent. While speaking of the distrust of courts, I hope I may be indulged in remarking, that individually my respect for judicial proceedings is materially impaired. I find, sir, that latterly, in some instances, the callous insensibility to extrinsic objects, which, in times past, was thought the most honorable trait in the character of an upright judge, is now, by some courts, entirely disrespected. It seems, by some judges, to be no longer thought an ornament to the judicial character, but is now substituted by the most capricious sensibilities. WEDNESDAY, December 21. _Enforcement of the Embargo._ Mr. POPE spoke in favor of the bill. And on the question, Shall this bill pass? it was determined in the affirmative--yeas 20, nays 7, as follows: YEAS.--Messrs. Anderson, Condit, Crawford, Franklin, Gaillard, Giles, Gregg, Kitchel, Milledge, Mitchill, Moore, Pope, Robinson, Smith of Maryland, Smith of New York, Smith of Tennessee, Sumter, Thruston, Tiffin, and Turner. NAYS.--Messrs. Gilman, Goodrich, Hillhouse, Lloyd, Mathewson, Pickering, and White. WEDNESDAY, December 28. The VICE PRESIDENT being absent by reason of the ill state of his health, the Senate proceeded to the election of a President _pro tempore_, as the constitution provides; and STEPHEN R. BRADLEY was appointed. FRIDAY, January 6, 1809. RETURN JONATHAN MEIGS, jun., appointed a Senator by the General Assembly of the State of Ohio, to fill the vacancy occasioned by the resignation of JOHN SMITH, and, also, for six years ensuing the third day of March next, attended, and produced his credentials, which were read; and the oath prescribed by law was administered to him. TUESDAY, January 10. JAMES A. BAYARD, from the State of Delaware, attended. MONDAY, January 16 The credentials of MICHAEL LEIB, appointed a Senator by the Legislature of the State of Pennsylvania, to fill the vacancy occasioned by the resignation of SAMUEL MACLAY, were read, and ordered to lie on file. THURSDAY, January 19. MICHAEL LEIB, appointed a Senator by the Legislature of the State of Pennsylvania, to fill the vacancy occasioned by the resignation of the Honorable SAMUEL MACLAY, attended, and the oath prescribed by law was administered to him. TUESDAY, January 24. _Foreign Intercourse--the Two Millions Secret Appropriation--Florida the object._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate of the United States_: According to the resolution of the Senate, of the 17th instant, I now transmit them the information therein requested, respecting the execution of the act of Congress of February 21, 1806, appropriating two millions of dollars for defraying any extraordinary expenses attending the intercourse between the United States and foreign nations. JANUARY 24, 1809. TH. JEFFERSON. The Message and documents were read, and one thousand copies thereof ordered to be printed for the use of the two Houses of Congress. In compliance with the resolution of the Senate, so far as the same is not complied with by the report of the Secretary of the Treasury of the 20th instant, the Secretary of State respectfully reports, that neither the whole nor any portion of the two millions of dollars appropriated by the act of Congress of the 21st of February, 1806, "for defraying any extraordinary expenses attending the intercourse between the United States and foreign nations," was ever authorized or intended to be applied to the use of either France, Holland, or any country other than Spain; nor otherwise to be applied to Spain than by treaty with the Government thereof, and exclusively in consideration of a cession and delivery to the United States of the territory held by Spain, eastward of the river Mississippi. All which is respectfully submitted. JAMES MADISON. DEPARTMENT OF STATE, Jan. 21. MONDAY, January 30. The VICE PRESIDENT having retired, the Senate proceeded to the election of a President _pro tempore_, as the constitution provides; and the Hon. JOHN MILLEDGE was appointed. THURSDAY, February 2. The credentials of SAMUEL WHITE, appointed a Senator by the Legislature of the State of Delaware, for six years, commencing on the 4th of March next, were read, and ordered to lie on file. TUESDAY, February 7. _Examination and Count of Electoral Votes for President and Vice President._ Mr. SMITH, of Maryland, from the joint committee appointed to ascertain and report a mode of examining the votes for President and Vice President, and of notifying the persons elected of their election, and for regulating the time, place, and manner, of administering the oath of office to the President, reported in part the following resolution, which was read and agreed to: _Resolved_, That the two Houses shall assemble in the Chamber of the House of Representatives, on Wednesday next, at 12 o'clock; that one person be appointed a teller on the part of the Senate, to make a list of the votes as they shall be declared; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses assembled as aforesaid; which shall be deemed a declaration of the persons elected President and Vice President, and, together with a list of the votes, to be entered on the Journals of the two Houses. _Ordered_, That Mr. SMITH, of Maryland, be appointed teller on the part of the Senate, agreeably to the foregoing resolution. A message from the House of Representatives brought to the Senate "the several memorials from sundry citizens of the State of Massachusetts, remonstrating against the mode in which the appointment of Electors for President and Vice President has been proceeded to on the part of the Senate and House of Representatives of said State, as irregular and unconstitutional, and praying for the interference of the Senate and House of Representatives of the United States, for the purpose of preventing the establishment of so dangerous a precedent." The message last mentioned, referring to the memorials of sundry citizens of the State of Massachusetts, was read. _Ordered_, That the message and memorials lie on the table. A message from the House of Representatives informed the Senate that the House agree to the report of the joint committee "appointed to ascertain and report a mode of examining the votes for President and Vice President, and of notifying the persons elected of their election, and to regulate the time, place, and manner of administering the oath of office to the President," and have appointed Messrs. NICHOLAS and VAN DYKE tellers on their part. WEDNESDAY, February 8. The two Houses of Congress, agreeably to the joint resolution, assembled in the Representatives' Chamber, and the certificates of the Electors for the several States were, by the President of the Senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the President of the Senate, which was read, as follows: Key: James Madison. = JMn George Clinton. = GC C. C. Pinckney. = CCP James Monroe. = JMe John Langdon. = JL Rufus King. = RK +---------------+--------------+-------------------------+ | STATES. |For President.| For Vice-President. | | +----+----+----+-----+----+----+----+----+ | | JMn| GC| CCP| GC| JMn| JMe| JL| RK| +---------------+----+----+----+-----+----+----+----+----+ |New Hampshire | --| --| 7| --| --| --| --| 7| |Massachusetts | --| --| 19| --| --| --| --| 19| |Rhode Island | --| --| 4| --| --| --| --| 4| |Connecticut | --| --| 9| --| --| --| --| 9| |Vermont | 6| --| --| --| --| --| 6| | |New York | 13| 6| --| 13| 3| 3| | | |New Jersey | 8| --| --| 8| | | | | |Pennsylvania | 20| --| --| 20| | | | | |Delaware | --| --| 3| --| --| --| --| 3| |Maryland | 9| --| 2| 9| --| --| --| 2| |Virginia | 24| --| --| 24| | | | | |North Carolina | 11| --| 3| 11| --| --| --| 3| |South Carolina | 10| --| --| 10| | | | | |Georgia | 6| --| --| 6| | | | | |Kentucky | 7| --| --| 7| | | | | |Tennessee | 5| --| --| 5| | | | | |Ohio | 3| --| --| --| --| --| 3| | +---------------+----+----+----+-----+----+----+----+----+ |Totals | 122| 6| 47| 113| 3| 3| 9| 47| +---------------+----+----+----+-----+----+----+----+----+ The whole number of votes being 175, of which 88 make a majority. Whereupon the President of the Senate declared JAMES MADISON elected President of the United States for four years, commencing with the fourth day of March next; and GEORGE CLINTON Vice President of the United States for four years, commencing with the fourth day of March next. The votes of the Electors were then delivered to the Secretary of the Senate; the two Houses of Congress separated; and the Senate returned to their own Chamber. On motion, by MR. SMITH of Maryland, _Resolved_, That the President of the United States be requested to cause to be delivered to JAMES MADISON, Esq., of Virginia, now Secretary of State of the United States, a notification of his election to the office of President of the United States; and to be transmitted to GEORGE CLINTON, Esq., of New York, Vice President elect of the United States, notification of his election to that office; and that the President of the Senate do make out and sign a certificate in the words following, viz: _Be it known_, That the Senate and House of Representatives of the United States of America, being convened at the city of Washington, on the second Wednesday in February, in the year of our Lord one thousand eight hundred and nine, the underwritten, President of the Senate _pro tempore_, did, in presence of the said Senate and House of Representatives, open all the certificates and count all the votes of the Electors for a President and Vice President of the United States. Whereupon, it appeared that JAMES MADISON, of Virginia, had a majority of the votes of the Electors as President, and GEORGE CLINTON, of New York, had a majority of the votes of the Electors as Vice President. By all which it appears that JAMES MADISON, of Virginia, has been duly elected President, and GEORGE CLINTON, of New York, has been duly elected Vice President of the United States, agreeably to the constitution. In witness whereof, I have hereunto set my hand, and caused the seal of the Senate to be affixed, this ---- day of February, 1809. And that the President of the Senate do cause the certificate aforesaid to be laid before the President of the United States with this resolution. TUESDAY, February 21. The credentials of JOSEPH ANDERSON, appointed a Senator for the State of Tennessee, by the Executive of that State, from and after the expiration of the time limited in his present appointment, until the end of the next session of the Legislature thereof, were presented and read, and ordered to lie on file. _Franking Privilege to Mr. Jefferson._ The bill freeing from postage all letters and packets to Thomas Jefferson was read the second time, and considered as in Committee of the Whole; and no amendment having been proposed, on the question, Shall this bill be engrossed and read a third time? it was determined in the affirmative. _Non-Intercourse._ Mr. TIFFIN, from the committee, reported the bill to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes, correctly engrossed; and the bill was read the third time, and the blanks filled--section three, with the words _twentieth_ and _May_ in two instances. On motion by Mr. BRADLEY, the words, "or being pursued by the enemy," were stricken out of the first and third sections, by unanimous consent. Mr. LLOYD addressed the Senate as follows: Mr. President: When the resolution on which this bill is founded was brought forward, I had expected it would have been advocated--as a means of preserving peace--as a menace to the belligerents, that a more rigorous course of conduct was about to be adopted towards them, on the part of the United States, provided they continued to persist in their injurious decrees, and Orders in Council--as giving us time to prepare for war--or as a covert, but actual war, against France and Great Britain. I feel indebted to the honorable gentleman from Virginia, (Mr. GILES,) for not only having very much narrowed the consideration of this subject, but for the open, candid, and manly ground he has taken, both in support of the resolution and the bill. I understood him to avow, that the effect must be war, and that a war with Great Britain; that, notwithstanding the non-intercourse attached to this bill, the merchants would send their vessels to sea; those vessels would be captured by British cruisers; these captures would be resisted; such resistance would produce war, and that was what he both wished and expected. I agree perfectly with the gentleman, that this is the natural progress, and must be the ultimate effect of the measure; and I am also glad, that neither the honorable Senate nor the people of the United States can entertain any doubts upon the subject. I understood the gentleman also to say, that this was a result he had long expected. Now, sir, as there have been no recent decrees, or Orders in Council issued, if war has been long looked for, from those now in operation, I know not what excuse those who have the management of our concerns can offer to the people of the United States, for leaving the country in its present exposed, naked, and defenceless situation. What are our preparations for war? After being together four-fifths of the session, we have extorted a reluctant consent to fit out four frigates. We have also on the stocks, in the navy yard and elsewhere scattered along the coast, from the Mississippi to the Schoodick, one hundred and seventy gunboats, which, during the summer season, and under the influence of gentle western breezes, may, when in commission, make out to navigate some of our bays and rivers, not, however, for any effectual purposes of defence, for I most conscientiously believe, that three stout frigates would destroy the whole of them; and of the enormous expense at which this burlesque naval establishment is kept up, we have had a specimen the present session, by a bill exhibited to the Senate, of eight hundred dollars for medical attendance, on a single gunboat for a single month, at New Orleans. If other expenditures are to be made in this ratio, it requires but few powers of calculation to foretell that, if the gunboats can destroy nothing else, they would soon destroy the public Treasury. We have also heard of a project for raising fifty thousand volunteers, which has, I believe, been very properly stifled in its birth, and we have appropriated, during the present session, one hundred and fifty thousand dollars towards the erection, repairing, and completion of our fortifications. A sum about equal to the expenditure of the British Government for six weeks, or two months, on a single fortress in the Province of Canada, and which sum, with us, is to put into a state of defence, against the naval power of Great Britain, an exposed and accessible maritime frontier of two thousand miles in extent! In contemplating war, it is also proper to advert to the state of the Treasury. Under such an event, and with any serious preparation for war or actual prosecution of it, the present funds would soon be exhausted. How soon cannot be stated, because the amount of them cannot be accurately ascertained. A part, and a considerable part, of the money now on hand, does not belong to the public. It is the property of the merchants; it is deposited in the Treasury as in a bank, to be checked for, whenever that commerce, which Mr. Jefferson, in his Notes on Virginia, most emphatically says, our country _will have_, shall be again reopened. And thus situated, what are the projects offered for replenishing the public coffers in future? It is the duty of the Secretary of the Treasury to develop the resources of the nation, and to point out new sources of supply, whenever the usual channels are impeded. He has designated three modes. The first, if executed, embraces, in my view, and I am sorry to say it, a marked violation of the public faith. It is the suggestion of stopping drawbacks on merchandise, which, in many instances, the merchants, from a reliance on the stability of your laws, and the integrity of the Government, have imported expressly for exportation, and not for domestic use or consumption in this country, and which exportation you have prevented them, alike contrary to their inclinations and their interests, from making for a longer period than ever was known or endured in any other nation. The second project is one which, in my opinion, would do little honor to the genius of any man. It is a sweeping project for doubling, at the moment, the duties on every description of imported merchandise, on which a duty is now payable. Without notice to the merchant, without inquiry, without discrimination, without distinction between the necessaries of the poor man and the luxuries of the rich one; between the indispensable raw materials of the manufacturer and the useless decorations of fashion. By which, bohea tea and Madeira wine, brown sugar and cosmetics, coaches and carpenters tools, are all, by a single stroke of the pen, raised in the same ratio; and a duty of 100 per cent. on the present rates, without favor or affection, equally recommended to be imposed on the whole of them. The third project is certainly not a novel one; it is simply that of shifting the burden off our own shoulders on to those of our successors: it is that of borrowing money on loans. I have been, sir, among those who have respected the intelligence and acuteness of the Secretary of the Treasury. I have thought the office very ably filled; nor has my estimation of his talents been diminished from the few personal conferences I have had with him since I have been in this city; but if his fame rested on no firmer a basis than the reports made to Congress the present session, in relation to enforcing the embargo laws, and to our fiscal concerns, then an infant's breath might easily burst the bubble. At any rate, it may very truly be said, that if such are our preparations for commencing, and our resources for continuing a war, they are those which will serve neither to inspirit ourselves, nor to frighten our enemies. If we are to have war, with whom is it to be prosecuted--not in terms I mean, but in fact? Certainly not with France. Her few possessions in the West Indies have probably, by this time, ceased to belong to her, and between her European territories and the United States a gulf intervenes, a power is interposed, which neither the Emperor of the West nor the King of the two Americas can either fathom or resist. It then appears, if we are to have war, it is to be a covert war with the two belligerents, but in reality an actual war with Great Britain alone, and not a war with both France and Great Britain, as the face of this bill seems to import. If this be the determination of our Government, and the war is to commence at a future day, and not instantly, what is the course which policy would dictate to this country to pursue? Certainly not a prohibition of the importation of her manufactures. A long period of years must elapse before we can furnish for ourselves many articles we receive from her even of the first necessity, or those which, from habit, have become such to us. We should, therefore, sedulously endeavor, not only to guard against exhausting our present stock, but to adopt every means in our power to replenish it. It would be expedient to throw wide open the entrance of our ports for importations, to overstock as much as possible the United States with British manufactures. This would procure for us a double advantage; it would promote our own accommodation, by giving us the means of commencing and prosecuting war with fewer privations, and it would powerfully tend to unite the interests of a certain class of the inhabitants of that country with our own--for, as the mass of importations from Great Britain are made on long credits, should a war ensue before such credits are cancelled, it is obvious that, until the conclusion of the war, those debts could not be collected, and this circumstance alone, to a certain extent, might operate as a preventive check to war, or, at any rate, would secure in the bosom of the British nation a party whose interests and feelings would be intimately connected with a speedy return of peace. By adopting a non-intercourse antecedent to a state of war, our own stock of supplies becomes exhausted, the British merchants have time and notice given them to collect, or alienate, by assignment, their debts in this country. A warning is given them to buckle on their armor; their good disposition towards us is not only changed, but embittered, and the very persons who, in the one case, might possibly prevent a war, or be instrumental in effecting the restoration of peace, would, in the other, probably be among the most willing to rush into the contest, from the impulse of temper, and from the conviction that their own circumstances would not be deteriorated by its consequences. A non-intercourse would also be attended with great hazard and disadvantage. It would be as well understood by others as by ourselves; it could alone be considered as the precursor of war; and the blow would be struck, not when we were prepared, but when our opponents were ready for the contest; and should this bill go into operation, it is very possible that during the ensuing summer, some of our cities may exhibit heaps of ruins and of ashes, before expresses could convene at the seat of Government even the heads of our departments. Another evil would arise, and that a permanent one; whether a non-intercourse eventuated in war or peace, it would materially and adversely affect both the habits of the people and the revenue of the State. Many of the articles which are now imported from Great Britain are indispensable for our comfort, and some of them for our existence. The people cannot do without them: the consequence must be, that, instead of being regularly imported, the articles will be smuggled into this country, and thereby the price not only becomes greatly enhanced to the consumer, but the duties are wholly lost to the Government. Hitherto, the revenue of the United States, arising from impost, has been collected with a degree of integrity and punctuality highly honorable and unexampled in the history of commercial nations. This successful collection of duties has not however been effected by the employment of swarms of revenue officers, spies, and informers, as in other countries; it has been infinitely more effectually secured, by an honorable pride of character, and that sentiment of affection which was naturally excited in the hearts of freemen towards the Government of their choice, and a Government under which, in the main, they have experienced much prosperity. But barriers of this description, like other high-toned sentiments of the mind, being once broken down, can with difficulty be restored, and the chance of materially impairing this, in reality, "cheap defence of nations," should, in my opinion, of itself, afford a sufficient reason for the rejection of all measures of doubtful policy. In a country nearly surrounded by, and everywhere intersected with navigable waters, encompassed by a frontier beyond the ability of ten Bonapartean armies to guard, and inhabited by a race of men unrivalled for hardihood and enterprise, and at present in a state of poverty, the temptation of great prices will be irresistible--for there is no truism in morals or philosophy better established than the commercial axiom, that demand will ultimately furnish a supply. There are, undoubtedly, periods in the history of a nation, in which a contest would be both honorable and indispensable, but it should ever be the result of great deliberation, and in an extended republic, perhaps, of necessity. That government is most wise and most patriotic, which so conducts the affairs of the nation over which it presides, as to produce the greatest ultimate good; and when a nation is attacked at the same time by two assailants, it is no reflection on its honor or its bravery, to select its opponent; and on principles of reciprocity, independently of those of interest, the first aggressor would undoubtedly be entitled to the first notice. Who then has been the first aggressor? I answer, France. The Berlin Decree is in a great measure the cause of our present difficulties. In justification of France in doing this, I know gentlemen resort to the convention between Russia and Great Britain in 1793, to prohibit a supply of grain to France; but this is by no means sufficient justification to France, even without referring to a decree to the same effect issued in May of the same year by France, while she was ignorant of the secret stipulation between Russia and Great Britain. For a long period, and among most of the maritime nations of Europe, the right of inhibiting a supply of provisions to an enemy, was tacitly acquiesced in, or expressly admitted. This practice existed even so long ago as the Mithridatic war, and has probably been followed up, without an interval at any one time of fifty years, from the commencement of the Christian era to the present day. This attempt, therefore, of Great Britain to injure France, formed no excuse for France to attempt to injure Great Britain by violating the commerce of the United States. On the 31st of December, 1806, the British Government formally notified the American Government, that Great Britain would consider an acquiescence in the Berlin Decree on the part of neutral nations, as giving to her (Great Britain) the right to retaliate in the same way against France. Had the American Government, at this period, manfully and explicitly made known its determination to support our rights at all hazards, I have no belief that our present difficulties would ever have existed. In May succeeding, advices were received of French privateers, under this decree, depredating upon American vessels in the West Indies; and during the same month the ship Horizon, in distress, was thrown by the act of God on the French coast, and was seized under the same authority. In November, 1807, the British, in conformity with their notice, issued their retaliating order. A prior Order in Council of January, 1807, had been issued, but this only affected vessels trading between different ports of France, or between ports of France and her allies; a trade always obnoxious to suspicion, and one which during war must ever be expected in a great degree to be restricted, and which is also interdicted by a standing law of the French Government, passed in 1778, and confirmed by the present Emperor. Then followed in succession, on the part of France, the Milan and Bayonne decrees. The last of which dooms an American vessel to condemnation from the exercise of a right universally acknowledged to belong to belligerents, and one which the neutral has no possibility of preventing, that of being spoken with by an enemy cruiser, which from her superior sailing there was no possibility of avoiding. In point of principle, this is the most outrageous violation of neutral rights ever known, and this, too, took place under the existence of a treaty made within a few years by the same person who issued these very decrees. While with Great Britain we have no treaty, and whose orders are expressly bottomed upon and limited in duration by the French decrees, and issued after having given twelve months' notice of her intention to oppose them in this way, and the Orders in Council are even as yet not co-extensive in principle with the French decrees. I have, in taking this brief view, confined myself exclusively to the decrees and orders of the two Governments, without adverting to other causes of complaint on either side. I consider myself as warranted in doing this, from the American Government having explicitly taken this ground, and made known that, on the removal of the decrees and orders, it would, on our part, remove the embargo, and restore the accustomed intercourse between the two countries. From this consideration of the subject, it irresistibly follows, that France was the first aggressor on us, in issuing her decrees--that in point of principle, they are much more outrageous violations of right than the British Orders in Council--that the latter originate from, and co-exist only with the former, and that France should of consequence be the first object of our vengeance. The effects of a war with one or the other nation, would be as distinctly perceptible. With France it would make no difference to us. For as long as she continues her decrees, commerce with her could not be prosecuted--no man would be mad enough while her coast is lined, and the ocean covered with British cruisers, to send his vessel to France, where she would meet with certain condemnation for being even seen and spoken with by a British frigate. With France, therefore, the actual difference arising from passing this bill, and declaring a non-intercourse, would be next to nothing. With Great Britain the effects would be reversed. No one now doubts her ability or disposition to carry her orders into effect, nor her preparation to extend the theatre of war. If we commenced war upon France, as she would be the common enemy of both nations, there is no doubt in my mind that our differences with Great Britain would be favorably settled, that the commerce of the world, excepting as it respects France and her allies, would be again open to us, and that a trade, which has hitherto employed nearly seventy millions of our capital, might be again accessible to the industry and enterprise of our citizens. Reverse this picture, admitting that you have a war with Great Britain, what will be its consequences? If your citizens are united, you can capture Canada, Nova Scotia, and New Brunswick; when you have effected this, what remains next to be done? You have reached the _ne plus ultra_ of your ability. Thenceforward your ports are hermetically sealed. Privateering, from the convoy system adopted by Great Britain, could not be successfully prosecuted; no food for enterprise remains, and thus you would remain, five, ten, or fifteen years, as the case might be, until the wisdom and good sense of the nation predominated over its passion, when an accommodation would be made with Great Britain, following her example with regard to her West India conquests, restoring the captured provinces, enriched by American population and industry, and giving us perhaps a treaty still less favorable than the much execrated instrument of 1794, which, bad as it was said to be, has proved a _cornucopia_ of wealth to our country, if it produced nothing less than a thirteen years' peace, and which, to my view, is vastly preferable to its abortive successor of the year eighteen hundred and six. The question was now taken on the passage of the bill, and determined in the affirmative--yeas 21, nays 12, as follows: YEAS.--Messrs. Anderson, Condit, Franklin, Gaillard, Giles, Gregg, Howland, Kitchel, Leib, Mathewson, Meigs, Milledge, Mitchill, Moore, Pope, Robinson, Smith of Maryland, Smith of New York, Smith of Tennessee, Thruston, and Tiffin. NAYS.--Messrs. Bayard, Crawford, Gilman, Goodrich, Hillhouse, Lloyd, Parker, Pickering, Reed, Sumter, Turner, and White. So it was resolved that this bill pass, and that the title thereof be, "An act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes." FRIDAY, February 24. _Additional Duties._ The bill, entitled "An act for imposing additional duties upon all goods, wares, and merchandise, imported from any foreign port or place," was read the third time as amended. Mr. LLOYD moved to postpone the further consideration of this bill until the first Monday in June next; and addressed the chair as follows: Mr. President: After the observations which I have before made, sir, on this bill, and the detailed consideration which was given to it yesterday, I should not again rise, were the subject not a commercial, and an exceedingly important one; nor is it now my intention to make more than a few remarks, and these the Senate will probably think entitled to more than usual respect, when I inform them they will principally be, neither my own, nor wholly accordant with my opinions. This bill can only be advocated upon the ground that a war is about to ensue, and that, to prepare the public Treasury to sustain the prosecution of such war, this proposed duty is necessary. My purpose is to cite some authorities to show that neither the one nor the other is either expected or necessary; and the authorities I shall adduce to prove this, are those to which the Senate is accustomed to pay the highest respect. [Here Mr. Lloyd quoted from Mr. Gallatin's Treasury reports, to show that he deemed loans preferable to taxes if war ensued, and that there was revenue enough until the next winter.] Now, sir, it is clear, from the showing even of this honorable gentleman whose calculations are received with so much respect here, that whether there is peace, war, or embargo, our resources are yet abundant to carry us on, at least until the next winter; and as we are to meet again in three months, it follows that the present undigested project must be worse than useless. To all this mass of evidence and authority against both the necessity and policy of laying this duty, I have only to add a few observations to show that it will, in its operation, be both unequal and unjust. It is well known that permanent duties, except on their first imposition, are paid by the consumer; but whenever duties are to be of short duration, as in the present instance, or until the stocks of merchandise prior to the assessment of the duty are run off, the price does not rise in ratio with the duty, and that, of consequence, the whole, or part of the duty, is thus much of loss to the merchant. This, in a degree, cannot be avoided, nor is it even a subject of complaint, where due notice has been given of the intention to lay the duty; but if it be imposed without notice, or giving time for preparation, then the interest of the merchant is sacrificed. The basis of all commerce is calculation; what calculation can be found for distant enterprises when the data are perpetually shifting? If a merchant rests on the stability of the laws of the Government, and sends away his vessel, and on her return finds a new duty of 50 per cent. imposed, which, for the circumstance of it, the consumer does not pay, his whole calculations are defeated, and he pockets a loss instead of a profit for his industry. Commerce is very probably as well understood in England as any where. In that country new duties on imports are imposed with great caution; whenever contemplated, the subject is generally a long time under consideration, sometimes hanging over from one session to another. The Ministry make it a point frequently to consult committees of merchants from most of the principal seaports in the kingdom. The result is, the subject is well considered; and, when the duties are imposed, they are submitted to with cordiality and cheerfulness. Mr. Pitt, in the latter part of his life, always adopted this mode. He did not think it condescension to consult merchants on subjects with which they were better acquainted than himself. In the early part of his administration, I have understood, he rashly imposed some additional and heavy duties on imported merchandise; the consequence was, the revenue diminished, and smuggling increased. With his characteristic vigor he determined to stop it, and lined the coast with luggers, revenue cutters, and frigates; still the revenue did not increase. He consulted the merchants--they told him the articles were taxed beyond their bearing; he manfully retraced his steps, and took off the additional duty--and immediately smuggling did not pay its cost--his luggers, cutters, and frigates, became useless, and the revenue advanced to its ancient standard. This is one among many memorable instances that might be adduced to show that an unwise augmentation of duties is very far from producing an increase of revenue. There is another view of the subject on which I shall say a few words. This new duty will operate as a bounty to monopolizers, forestallers, and speculators. Gentlemen are not aware of the avidity with which mercantile men have regarded the proceedings of this session. I am told that, within half an hour after the question was taken, about a fortnight since, in the other House, ten expresses started for different parts of the United States. It is notorious that English and West India goods, and most articles of foreign merchandise in the United States, have been bought up by speculators; it is now in the hands of a few persons; by passing this law, you discourage new importations, and enable the present holders to grind the poor, by extorting high prices for the articles they hold, from a want of competition in the market. From all these views of the subject, and from the sentiments I have quoted from the President, Mr. Gallatin, and General Smith, it is apparent that this measure is unwise, unnecessary, and impolitic. I am unwilling, sir, to take up the time of the Senate; but, however unavailing may be the efforts of my friends and myself, I wish to have it recorded that I was neither ignorant of the very injurious operation of this bill upon my constituents, nor unwilling to endeavor to prevent it. I therefore ask the indulgence of the Senate, that the ayes and noes may be taken when this question is decided. And on the question, it was determined in the negative--yeas 10, nays 19, as follows: YEAS.--Messrs. Bayard, Bradley, Gilman, Hillhouse, Lloyd, Mitchill, Parker, Pickering, Reed, and White. NAYS.--Messrs. Anderson, Condit, Crawford, Franklin, Gaillard, Gregg, Howland, Kitchel, Leib, Meigs, Milledge, Moore, Pope, Smith of Maryland, Smith of New York, Smith of Tennessee, Sumter, Thruston, and Turner. On motion, by Mr. SMITH, of Maryland, the further consideration of the bill was postponed to Monday next. FRIDAY, March 3. A message from the House of Representatives informed the Senate that the House disagree to the first and fourth amendment of the Senate to the bill, entitled "An act further to amend the several acts for the establishment and regulation of the Treasury, War, and Navy Departments, and making appropriations for the support of the Military Establishment and the Navy of the United States for the year 1809;" and they agree to the other amendments to the said bill. _Oath of Office to the President elect._ The PRESIDENT communicated to the Senate the following letter from the President elect of the United States: CITY OF WASHINGTON, March 2, 1809. SIR: I beg leave, through you, to inform the honorable the Senate of the United States, that I propose to take the oath which the constitution prescribes to the President of the United States, before he enters on the execution of his office, on Saturday the 4th instant, at twelve o'clock, in the Chamber of the House of Representatives. I have the honor to be, with the greatest respect, sir, your most obedient and most humble servant, JAMES MADISON. The Hon. JOHN MILLEDGE, _President pro tempore of the Senate_. _Five o'clock in the Evening._ _Adjournment._ Mr. MITCHILL, from the committee, reported that they had waited on the President of the United States, who informed them that he had no further communications to make to the two Houses of Congress. _Ordered_, That the Secretary notify the House of Representatives that the Senate having finished the business before them, are about to adjourn. The Secretary having performed that duty, the Senate adjourned without day. EXTRA SESSION. _The President of the United States_ _to ----, Senator for the State of ----_: Certain matters touching the public good requiring that the Senate should be convened on Saturday, the fourth day of March next, you are desired to attend at the Senate Chamber, in the city of Washington, on that day; then and there to deliberate on such communications as shall be made to you. TH. JEFFERSON. WASHINGTON, Dec. 30, 1808. SATURDAY, March 4. In conformity with the summons from the President of the United States, the Senate assembled in the Chamber of the House of Representatives. PRESENT: JOHN MILLEDGE, from the State of Georgia, President _pro tempore_. NICHOLAS GILMAN, and NAHUM PARKER, from New Hampshire. TIMOTHY PICKERING, from Massachusetts. CHAUNCEY GOODRICH, from Connecticut. ELISHA MATHEWSON, from Rhode Island. STEPHEN R. BRADLEY, from Vermont. JOHN SMITH, from New York. AARON KITCHEL, from New Jersey. ANDREW GREGG, from Pennsylvania. JAMES A. BAYARD, from Delaware. PHILIP REED, from Maryland. WILLIAM B. GILES, from Virginia. JAMES TURNER, and JESSE FRANKLIN, from North Carolina. THOMAS SUMTER, and JOHN GAILLARD, from South Carolina. WILLIAM H. CRAWFORD, from Georgia. BUCKNER THRUSTON, and JOHN POPE, from Kentucky. DANIEL SMITH, from Tennessee. EDWARD TIFFIN, from Ohio. JOHN LAMBERT, appointed a Senator by the Legislature of the State of New Jersey for six years, and SAMUEL SMITH, appointed a Senator by the Executive of the State of Maryland, attended, and their credentials were read. JAMES LLOYD, junior, appointed a Senator by the Legislature of the State of Massachusetts, attended, stating that he was elected, but not in possession of his credentials. JOSEPH ANDERSON, from the State of Tennessee; RICHARD BRENT, from the State of Virginia; JAMES HILLHOUSE, from the State of Connecticut; MICHAEL LEIB, from the State of Pennsylvania; RETURN J. MEIGS, from the State of Ohio; JONATHAN ROBINSON, from the State of Vermont; SAMUEL WHITE, from the State of Delaware, severally attended. The oath required by law was administered to the Senators above mentioned, in the six years' class, respectively, except to MR. BRENT. The PRESIDENT OF THE UNITED STATES attended, and communicated the following ADDRESS: Unwilling to depart from examples of the most revered authority, I avail myself of the occasion now presented, to express the profound impression made on me by the call of my country to the station, to the duties of which I am about to pledge myself by the most solemn of sanctions. So distinguished a mark of confidence, proceeding from the deliberate and tranquil suffrage of a free and virtuous nation, would, under any circumstances, have commanded my gratitude and devotion, as well as filled me with an awful sense of the trust to be assumed. Under the various circumstances which give peculiar solemnity to the existing period, I feel that both the honor and the responsibility allotted to me are inexpressibly enhanced. The present situation of the world is, indeed, without a parallel, and that of our own country full of difficulties. The pressure of these, too, is the more severely felt, because they have fallen upon us at a moment when the national prosperity being at a height not before attained, the contrast, resulting from the change, has been rendered the more striking. Under the benign influence of our Republican institutions, and the maintenance of peace with all nations, whilst so many of them were engaged in bloody and wasteful wars, the fruits of a just policy were enjoyed in an unrivalled growth of our faculties and resources. Proofs of this were seen in the improvements of agriculture; in the successful enterprises of commerce; in the progress of manufactures and useful arts; in the increase of the public revenue, and the use made of it in reducing the public debt; and in the valuable works and establishments every where multiplying over the face of our land. It is a precious reflection that the transition from this prosperous condition of our country, to the scene which has for some time been distressing us, is not chargeable on any unwarrantable views, nor, as I trust, on any involuntary errors in the public councils. Indulging no passions which trespass on the rights or the repose of other nations, it has been the true glory of the United States to cultivate peace by observing justice; and to entitle themselves to the respect of the nations at war, by fulfilling their neutral obligations with the most scrupulous impartiality. If there be candor in the world, the truth of these assertions will not be questioned; posterity, at least, will do justice to them. This unexceptionable course could not avail against the injustice and violence of the belligerent powers. In their rage against each other, or impelled by more direct motives, principles of retaliation have been introduced, equally contrary to universal reason and acknowledged law. How long their arbitrary edicts will be continued, in spite of the demonstrations that not even a pretext for them has been given by the United States, and of the fair and liberal attempt to induce a revocation of them, cannot be anticipated. Assuring myself, that, under every vicissitude, the determined spirit and united councils of the nation will be safeguards to its honor and its essential interests, I repair to the post assigned me with no other discouragement than what springs from my own inadequacy to its high duties. If I do not sink under the weight of this deep conviction, it is because I find some support in a consciousness of the purposes, and a confidence in the principles which I bring with me into this arduous service. To cherish peace and friendly intercourse with all nations having correspondent dispositions; to maintain sincere neutrality towards belligerent nations; to prefer, in all cases, amicable discussion and reasonable accommodation of differences, to a decision of them by an appeal to arms; to exclude foreign intrigues and foreign partialities, so degrading to all countries, and so baneful to free ones; to foster a spirit of independence, too just to invade the rights of others, too proud to surrender our own, too liberal to indulge unworthy prejudices ourselves, and too elevated not to look down upon them in others; to hold the union of the States as the basis of their peace and happiness; to support the constitution, which is the cement of the Union, as well in its limitations as in its authorities; to respect the rights and authorities reserved to the States and to the people, as equally incorporated with, and essential to the success of, the general system; to avoid the slightest interference with the rights of conscience or the functions of religion, so wisely exempted from civil jurisdiction; to preserve, in their full energy, the other salutary provisions in behalf of private and personal rights, and of the freedom of the press; to observe economy in public expenditures; to liberate the public resources by an honorable discharge of the public debts; to keep within the requisite limits a standing military force, always remembering that an armed and trained militia is the firmest bulwark of Republics; that without standing armies their liberty can never be in danger, nor with large ones safe; to promote, by authorized means, improvements friendly to agriculture, to manufactures, and to external as well as internal commerce; to favor, in like manner, the advancement of science and the diffusion of information, as the best aliment to true liberty; to carry on the benevolent plans which have been so meritoriously applied to the conversion of our aboriginal neighbors from the degradation and wretchedness of savage life, to a participation of the improvements of which the human mind and manners are susceptible in a civilized state;--as far as sentiments and intentions such as these can aid the fulfilment of my duty, they will be a resource which cannot fail me. It is my good fortune, moreover, to have the path in which I am to tread lighted by examples of illustrious services, successfully rendered in the most trying difficulties, by those who have marched before me. Of those of my immediate predecessor it might least become me here to speak. I may, however, be pardoned for not suppressing the sympathy with which my heart is full, in the rich reward he enjoys in the benedictions of a beloved country, gratefully bestowed for exalted talents, zealously devoted, through a long career, to the advancement of its highest interest and happiness. But the source to which I look for the aids which alone can supply my deficiencies, is in the well-tried intelligence and virtue of my fellow-citizens, and in the counsels of those representing them in the other departments associated in the care of the national interests. In these my confidence will, under every difficulty, be best placed, next to that which we have all been encouraged to feel in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future. After which, the oath prescribed by law was administered to the _President of the United States_, by the Chief Justice. The President of the United States then retired, and the Senate repaired to their own chamber. _Ordered_, That Messrs. ANDERSON and BAYARD be a committee to wait on the President of the United States, and notify him that the Senate are ready to receive any communications that he may be pleased to make to them. MONDAY, March 6. FRANCIS MALBONE, appointed a Senator by the Legislature of the State of Rhode Island, for six years, commencing on the 4th instant, attended, and produced his credentials, which were read. The credentials of RICHARD BRENT, appointed a Senator by the Legislature of the State of Virginia, for six years, commencing on the 4th instant, were read. The oath required by law was administered to Messrs. BRENT and MALBONE, respectively. On motion, by Mr. ROBINSON, _Resolved_, That the Secretary of the Senate be authorized to pay, out of the contingent fund of this House, to George Thomas, Walter Reynolds, and Tobias Simpson, the sum of fifty dollars each, in addition to their annual compensation. Mr. ANDERSON reported, from the committee, that they had waited on the President of the United States, who informed them that he should this day make a communication to the Senate. Soon after, a communication was received from the President of the United States, submitting sundry nominations to office, which were mostly confirmed. TUESDAY, March 7. _Adjournment._ After the consideration of Executive business, Messrs. BAYARD and REED were appointed a committee to wait on the President of the United States, and notify him that, unless he may have any further communications to make to them, the Senate are ready to adjourn. Mr. BAYARD reported, from the committee, that they had waited upon the President of the United States, who informed them that he had no further communications to make to them. Whereupon, The Senate adjourned without day. FOOTNOTES: [1] Missing line. TENTH CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, November 7, 1808. This being the day appointed by law for the meeting of the present session, the following members of the House of Representatives appeared, and took their seats, to wit: _From New Hampshire_--Daniel M. Durell, Francis Gardner, Jedediah K. Smith, and Clement Storer. _From Massachusetts_--Ezekiel Bacon, Joseph Barker, Orchard Cook, Richard Cutts, Josiah Deane, William Ely, Isaiah L. Green, Daniel Ilsley, Edward St. Loe Livermore, Josiah Quincy, Ebenezer Seaver, William Stedman, Jabez Upham, and Joseph B. Varnum, (the Speaker.) _From Rhode Island_--Isaac Wilbour. _From Connecticut_--Epaphroditus Champion, Samuel W. Dana, John Davenport, jr., Jonathan O. Mosely, Timothy Pitkin, jr., Lewis B. Sturges, and Benjamin Tallmadge. _From Vermont_--Martin Chittenden, James Elliot, and James Fisk. _From New York_--John Blake, jr., John Harris, Reuben Humphreys, William Kirkpatrick, Gurdon S. Mumford, Samuel Riker, John Russell, Peter Swart, John Thompson, James I. Van Allen, Killian K. Van Rensselaer, and Daniel C. Verplanck. _From New Jersey_--Adam Boyd, William Helms, John Lambert, Thomas Newbold, James Sloan, and Henry Southard. _From Pennsylvania_--David Bard, Robert Brown, William Findlay, John Heister, William Hoge, William Milnor, Daniel Montgomery, jr., John Porter, John Pugh, John Rea, Matthias Richards, John Smilie, Samuel Smith, and Robert Whitehill. _From Maryland_--Charles Goldsborough, William McCreery, John Montgomery, Nicholas R. Moore, and Archibald Van Horne. _From Virginia_--Burwell Bassett, William A. Burwell, John Clopton, John Dawson, John W. Eppes, James M. Garnett, Peterson Goodwyn, Edwin Gray, David Holmes, John G. Jackson, Joseph Lewis, jr., John Love, John Morrow, Thomas Newton, John Smith, Abram Trigg, and Alexander Wilson. _From Kentucky_--Joseph Desha, Benjamin Howard, and Richard M. Johnson. _From North Carolina_--Willis Alston, jr., William Blackledge, Thomas Blount, John Culpeper, Nathaniel Macon, Lemuel Sawyer, and Richard Stanford. _From Tennessee_--George W. Campbell, John Rhea, and Jesse Wharton. _From South Carolina_--Lemuel J. Alston, William Butler, Joseph Calhoun, John Taylor, and David R. Williams. _From Georgia_--William W. Bibb, and George M. Troup. _From Ohio_--Jeremiah Morrow. _From the Mississippi Territory_--George Poindexter, Delegate. Two new members, to wit: NATHAN WILSON, returned to serve in this House as a member for New York, in the room of David Thomas, who hath resigned his seat, and THOMAS GHOLSON, jr., returned to serve as a member from Virginia, in the room of John Claiborne, deceased, appeared, produced their credentials, and took their seats in the House. And a quorum, consisting of a majority of the whole number, being present, a message was received from the Senate, informing the House that a quorum of the Senate is assembled, and ready to proceed to business; the Senate have appointed a committee on their part, jointly with such committee as may be appointed on the part of this House, to wait on the President of the United States, and inform him that a quorum of the two Houses is assembled, and ready to receive any communications he may be pleased to make to them. The oath or affirmation to support the Constitution of the United States was then administered to Mr. NATHAN WILSON and Mr. GHOLSON, by Mr. SPEAKER, according to law. _Ordered_, That a message be sent to the Senate to inform them that a quorum of this House is assembled, and ready to proceed to business; and that the Clerk of this House do go with the said message. The House proceeded to consider the resolution of the Senate for the appointment of a joint committee of the two Houses to wait on the President of the United States and inform him that a quorum of the two Houses is assembled, and ready to receive any communication he may be pleased to make to them: Whereupon, the House agreed to the said resolution; and Mr. MACON, Mr. QUINCY, and Mr. MCCREERY, were appointed the committee on their part. Mr. MACON, from the joint committee appointed to wait on the President of the United States, and inform him that a quorum of the two Houses is assembled, reported that the committee had performed that service; and that the President signified to them he would make a communication, in writing, to this House, to-morrow at twelve o'clock, by way of Message. TUESDAY, November 8. Several other members, to wit: from Pennsylvania, JACOB RICHARDS; from Virginia, MATTHEW CLAY, and WALTER JONES; and from South Carolina, ROBERT MARION, appeared, and took their seats in the House. A new member, to wit, SAMUEL SHAW, returned to serve in this House as a member from the State of Vermont, in the room of James Witherell, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House. A message from the Senate informed the House that the Senate have resolved that two Chaplains, of different denominations, be appointed to Congress for the present session, who shall interchange weekly; to which they desire the concurrence of the House. The House proceeded to consider the foregoing resolution of the Senate, and it was agreed to. The SPEAKER laid before the House a letter from the Governor of the State Of Pennsylvania, enclosing a letter to him from JOSEPH CLAY, the Representative for the district composed of the city and county of Philadelphia, and county of Delaware, in the said State, containing his resignation of a seat in this House; also a proclamation of the said Governor, and a certificate of the election of BENJAMIN SAY, to serve as a member for the said district and State, in the room of the said Joseph Clay; which were read, and referred to the Committee of Elections. WEDNESDAY, November 9. Another member, to wit, ROBERT JENKINS, from Pennsylvania, appeared, and took his seat in the House. The House proceeded in the reading of the documents accompanying the President's Message; which being concluded, on motion of Mr. DAWSON, they were referred, together with the Message, to a Committee of the Whole on the state of the Union, and ordered to be printed. On the question as to the number to be printed, it was moved by Mr. FISK, and seconded by Mr. DANA, that ten thousand copies be printed. Negatived by a considerable majority. Five thousand copies were then ordered to be printed. The House was then cleared and the doors closed for the purpose of reading the confidential part of the President's Message. THURSDAY, November 10. Several other members, to wit: from Virginia, WILSON CARY NICHOLAS and JOHN RANDOLPH; and from North Carolina, JAMES HOLLAND, appeared and took their seats in the House. The House then proceeded, by ballot, to the appointment of a Chaplain to Congress, for the present session, on the part of the House; and upon examining the ballots, a majority of the votes of the whole House was found in favor of the Rev. OBADIAH BROWN. FRIDAY, November 11. Two other members, to wit: from Massachusetts, SAMUEL TAGGART; and from Maryland, JOHN CAMPBELL, appeared, and took their seats in the House. A new member, to wit, RICHARD S. JACKSON, returned to serve in this House, as a member for the State of Rhode Island, in the room of Nehemiah Knight, deceased, appeared, produced his credentials, was qualified, and took his seat in the House. MONDAY, November 14. Several other members, to wit: from New York, JOSIAH MASTERS; from Maryland, PHILIP B. KEY; and from North Carolina, THOMAS KENAN, appeared, and took their seats in the House. TUESDAY, November 15. Another member, to wit, JAMES KELLY, from Pennsylvania, appeared, and took his seat in the House. WEDNESDAY, November 16. Another member, to wit, ROGER NELSON, from Maryland, appeared, and took his seat in the House. A new member, to wit, BENJAMIN SAY, returned to serve in this House as a member from the State of Pennsylvania, in the room of Joseph Clay, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House. _Miranda's Expedition._ Mr. MCCREERY presented the petition of thirty-six American citizens, confined at Carthagena, in South America, under the sentence of slavery. The petition was read as follows: VAULTS OF ST. CLARA, CARTHAGENA, September 16, 1808. _To the honorable the Congress of the United States of America, in Congress assembled_: The petition of thirty-six American citizens confined at Carthagena, South America, under sentence of slavery, humbly showeth: That we, your petitioners, were brought from New York in the armed ship Leander, Thomas Lewis, commander, on the 2d of February, 1806, together with a number of others, mostly inhabitants of that State and city, under the most specious engagements of their country; to establish which, they beg leave to state that Colonel William Smith, then Surveyor of the port of New York, William Armstrong, Daniel D. Durning, and John Fink, butcher, of the city of New York, declared they were authorized to enlist a number of men to go to New Orleans, to serve as guards to the United States mails, and a number of others as mechanics. Some backwardness on the part of your petitioners to engage being discovered by William Smith, he read passages from letters to prove his authority, and several paragraphs from newspapers to convince them of the validity of their engagements. William Armstrong and Daniel D. Durning were appointed to command them, and were to accompany them to the city of Washington, where they were to receive clothing and accoutrements, and thence to New Orleans. The ship Leander, owned by Samuel G. Ogden, and formerly in the St. Domingo trade, was procured for the conveyance of your petitioners to the city of Washington, for which purpose she was hauled down to the watering place, where your petitioners went on board her the 1st day of February, 1806, and the next day (the 2d) the ship put to sea. Shortly after, Miranda, under the name of Martin, and a number of persons hitherto unknown to your petitioners, appeared on board, in the character of his officers; which, for the first time, awakened strong suspicions in the breasts of your petitioners that they had been entrapped into the power of wicked and designing men, and that, too, when retreat was impracticable. From New York your petitioners were carried to Jacmel, in the island of St. Domingo, where they were exercised in military duty, under the most arbitrary stretch of power, by Miranda and his officers. At Jacmel several attempts to escape proved abortive, from the vigilance of our oppressors, they having procured guards to be stationed in all the passes leading from Jacmel to other parts of the island, where your petitioners might expect to receive aid and protection from their countrymen. At Jacmel two schooners were hired, on board of which your petitioners were sent, under the care of a number of officers, whose wariness still remained unabated; and on the 27th March, 1806, the ship, accompanied by the two schooners, proceeded towards the coast of Terra Firma, where, after touching at the island of Aruba for refreshments, she arrived on the 28th of April, when two armed vessels hove in sight, which after some manoeuvring the ship engaged but soon ran away, leaving the two schooners to be captured. They were carried into Porto Cabello, where your petitioners were proceeded against as pirates, a number of warlike implements being found on board, which were placed there without the knowledge of your petitioners. And on the 12th July following, the process against us closed at Caraccas, sentencing ten, whom they considered to be criminally engaged, to be hanged and beheaded, and the remainder (your petitioners) to eight and ten years' slavery on the public works at Omoa, Bocca Chica, and the island of Porto Rico. Your petitioners were all sent to this place, where those sent to Bocca Chica were put to work, chained two-and-two, and the residue, in double irons and close confinement, strongly guarded, waiting for an opportunity to be sent to their respective places. Upon several occasions your petitioners were told by William Armstrong, Thomas Lewis, and others, that they were sent out by the Government of the United States. To prove to the satisfaction of your honorable body the truth of the above statement, your petitioners beg you will examine Robert Laverty, John Stagg, John Ritter, Matthew Morgan, Richard Platt, Adam Ten Brook, and John Miller, of New York, who were under the same engagements with your petitioners. Francis White and Thomas McAllister, butchers in the Bear market, New York; Mr. Brinkerhoff, tavern keeper, near the Bear market; David Williams, John Garret, and a Mr. Kemper, weighmaster, whose son was executed at Porto Cabello, were present when all or most of your petitioners were engaged, and can prove beyond all doubt that your petitioners could have had no other idea than that of entering into the service of the United States. Captain Bomberry, of the ship Mary, of Baltimore; Captain Israel, of the brig Robert and Mary; Captain Waldron, of the schooner Victory; and Captain Abbot, of the brig Charleston Packet, all of Philadelphia, were eye-witnesses to the tyranny and oppression under which your petitioners labored while at Jacmel. When the crew of the Bee, one of the schooners which was chartered by the Leander, refused to go in her, a number of officers from the ship, with Lewis at their head, came on board the Bee, and, after beating and cutting the men with sticks and sabres in the most brutal manner, dragged them on board the Leander, put them in irons under a strong guard, and kept them there until the moment of sailing, when they were sent on board the Bee, with orders to keep near and to leeward of the ship. Another man, who had effected his escape from a French privateer, and found his way to Jacmel, with the hope of getting a passage home in some of his country vessels, was seized at the instance of Thomas Lewis, commander of the Leander, and captain under Miranda, thrown into prison, and compelled to go in the expedition, or to starve in jail. Your petitioners are confident, that, when your honorable body becomes thoroughly acquainted with the circumstances of art and deception which betrayed them into the expedition, the destination of which they had no knowledge until it was too late to retreat, you will not only punish such of their betrayers as are within reach of your power, but will adopt proper measures to restore your unfortunate petitioners to liberty and their families. We beg leave to mention that Jeremiah Powell, who was an officer of high confidence in the expedition, was pardoned without hesitation by the Spanish monarch, on the application of his father. Your petitioners have embraced many opportunities to convey to your honorable body the prayer of a petition, but, from the length of time elapsed since they sent off their last, and not hearing of any measures being adopted in their favor, they fear none ever arrived; and by the present opportunity several copies of this petition have been transmitted to gentlemen residing in different parts of the United States, with the hope that some of them may arrive safe. Your petitioners cannot for a moment believe that the United States will suffer officers under her constitution to kidnap her citizens into expeditions and services fitted out and maintained by a foreign outlaw against powers with which she is at amity and peace, under the specious pretence of engaging them into the service of their country, without punishing the aggressors, and using every effort to regain her citizens. Such is the case of your unfortunate petitioners, who entreat you as children would a parent, to relieve them from total destruction, on the brink of which they have been thrown by the practise of frauds and villanies hitherto unheard of. A short time since, a British ship of war arrived at this place, the commander of which, (Edward Kittoe, Esq.,) upon being applied to by nine of our companions, who declared themselves to be British-born subjects, and being made acquainted with the circumstances which led to our capture, immediately sent on a petition to the Viceroy of this Kingdom in behalf of us all, but particularly for such as are British subjects, whom we expect will eventually be liberated. Nothing but humanity and a strong desire to relieve distress could have induced Captain Kittoe to this step, who, we are confident, as much as ourselves, regrets its failure of success, and to whom we feel every way indebted, and shall ever recollect it with gratitude and thanks. When your petitioners remonstrate against any harsh treatment of these people, they invariably ask, "Why don't your country liberate you?--it rests solely with them." Your petitioners feel confident, from the justness of their claim to the interference and protection of the constituted authorities of their country, measures will be adopted to restore them to liberty; and having no doubt but your honorable body will afford them that protection which citizens have a right to claim from their country, your petitioners beg that your honorable body will convey them an answer, and your petitioners, as in duty bound, will ever pray, &c. Robert Saunders, Benjamin Davis, Henry Sperry, Joseph Hickle, Ellery King, William Long, Daniel Newbury, Wm. Cartwright, Samuel Tozier, James Hyatt, Abram Head, Robert Stevenson, Samuel Price, Robert Reins, Hugh Smith, Benjamin Nicholson, Geo. Ferguson, Wm. Pride, Pompey Grant, David Heckle, Bennett B. Negus, John Moore, John M. Elliot, Henry Ingersoll, John Parcels, John Hayes, David Winton, Matthew Buchanan, Alexander Buchanan, Jas. W. Grant, John Edsall, Thomas Gill, Joseph Bennett, Phineas Raymond, Peter Nautly, Stephen Burtis. CARTHAGENA, August 12, 1808. On my arrival at this place, I was applied to in behalf of the unfortunate men captured under the orders of General Miranda, who are under sentence of transportation to the different public works at Omoa, Porto Rico, &c., among whom are several British subjects, (whose names are inserted below.) I am well aware of the enormity of their crime, as I understand they were taken without colors or papers; but, as a British officer, I consider it a duty to plead for those in distress, wherever they may be found; and I trust, from the known lenity of your Excellency's character, I shall not plead in vain. The men in question are originally of British descent, and are allied to my nation by many ties. They have no Consul--no Minister--to prefer the prayer of their petition to your Excellency, having been prevented by the war between our nations from making known their situation to the President of the United States. Suffer me, therefore to address your Excellency, and beg for their release, on a solemn promise that they will never be found again in arms on a similar occasion. As I am the hearer of welcome tidings to the inhabitants of the province under your Excellency's command, make me also the hearer of them to the unhappy sufferers now confined in Carthagena. It is true, I am unauthorized to make this request in the name of the British Government for the men in general, but I am convinced the step will be approved; and if your Excellency will lend a favorable ear to my petition the circumstance will not pass unnoticed on their part; at all events, your Excellency will have the prayer of many individuals for your eternal happiness, and among them will be found (not the least fervent) those of your Excellency's most humble servant, EDWARD KITTOE, _Com. H. B. M. ship Sabina_. P. S.--If my request for the liberation of all General Miranda's men is by your Excellency deemed unreasonable or improper, I beg to confine it particularly to such as are British subjects: that is an indispensable duty I owe to them and my country. _Names of British subjects under sentence of transportation at Carthagena._ John Moore, Peter Nautly, John Hayes, Thomas Gill, Joseph Bennett, James Grant, Samuel Tozier, Robert Stevenson, and Hugh Smith, (a boy.) _Territorial Governments._ ORDINANCE OF 1787. Mr. POINDEXTER, from the committee appointed on the subject, reported a bill concerning the power of the Territorial Governments. [The object of it is to take away from Governors of the Territories the power of proroguing or dissolving their Legislatures.] The bill was twice read; and Mr. POINDEXTER observed, that as the bill must stand or fall on its principle, and could not want amendment, he should wish to dispense with the usual course of reference to a Committee of the Whole, and that it should be engrossed for a third reading. Mr. TROUP hoped the House would not be precipitated unadvisedly into a decision of a question of this kind; that they would not break in upon a system which had served them so well without maturely deliberating upon it. The ordinance for the government of the Territories he considered as constitutional law, and it should be viewed and treated with as much delicacy as the constitution of the General Government itself. It had served them well, it had nurtured the Territories from infancy to maturity, and he hoped the house would not innovate on the system, but for the most substantial reasons. He therefore wished this bill to take the course of all other business, and go to a Committee of the Whole. Mr. POINDEXTER said it was not his object to exclude deliberation by his motion; as the day for its third reading might be fixed a fortnight hence, if the gentleman from Georgia wished it. He knew the difficulty of getting up such bills when committed to a Committee of the Whole; he also knew that in a few days the House would be engaged in great national concerns, which would occupy their entire attention to the exclusion of other business of minor importance. The gentlemen seem to think (said Mr. P.) that to leave to the Governors of Territories of the United States powers which are fitted but for the Sovereigns of Europe, is highly decorous; whilst I think they should be spurned from the statute book. The gentleman is mistaken when he says that we should view the ordinances in the same light as the constitution; they are mere statutes. Placed by the constitution under the particular care of Congress as the Territories are, the ordinances enacted for their government are mere statutes, subject to the revision of Congress, as other laws are. Mr. PITKIN said the ordinances for the government of the Territories had been framed with great deliberation, and should always be considered as a compact between the General Government and its Territories. Whether an alteration could or could not be made without their consent, he would not undertake to say. He thought therefore in this case the usual rule should not be violated, for it was well known that no amendment could be received on the third reading of a bill. Mr. TROUP said the gentleman from the Mississippi Territory had totally mistaken his object. It was not procrastination that he wanted, but a mature consideration of the question, whether on this day or on this day fortnight. When he had considered the ordinance as a compact equally sacred with the constitution of the United States, and as unalterable without the consent of the parties to it, it was then that he considered this a question of such great and signal importance that he wished time for deliberation. And when he said this, he expressed the opinion of a man than whom no man in the country was more deeply read in its constitution--St. George Tucker--who had described it as a compact unalterable, but with the consent of both parties. The gentleman would take away from the Territorial Governors the power to prorogue and dissolve the Assemblies. What would then be the state of the Territorial Legislatures? They would (said Mr. T.) be as completely independent of the General Government as the General Government is, I hope, of Great Britain at this moment. Retain the qualified veto, and take away the power to prorogue and dissolve, and what will be the consequence? The moment a misunderstanding takes place between the Legislature and Executive, legislation is at an end; and where legislation ends, revolution begins, and there is an end of government. Mr. POINDEXTER said, at the suggestion of several gentlemen, he should consent to a reference of the bill to a committee, as he did not wish now to hasten the discussion. But the gentleman was mistaken if he supposed that taking away the power to prorogue, would deprive the Governors of their veto on laws. The Governors had an unqualified veto on the acts of the Legislature. The gentleman said, (observed Mr. P.,) that take away the power of prorogation, and if a misunderstanding arise between the Governor and the Legislature, there is an end of legislation. That is now the fact. If there be any misunderstanding between them, the Governor sends the Legislature home; and I agree with the gentleman from Georgia, "where legislation ends, revolution begins." In this situation, I wish to take some power from the Governor and place it in the people, which would render the Government more congenial to the spirit of the constitution and of the people of the United States. But I waive discussion and consent to reference. The bill was made the order of the day for to-morrow. THURSDAY, November 17. Another member, to wit, DENNIS SMELT, from Georgia, appeared, and took his seat in the House. _Foreign Relations._ Mr. MACON said, already had many resolutions been submitted to the consideration of the House on the subject of our foreign relations, and the embargo; some for a total and some for a partial repeal of it. As none of the motions had met his entire approbation, and as he considered this as one of the most important questions that could come before the House, he wished to submit to the House two or three propositions; which he wished to take a course different from that which had been given to the others on the same subject. I have been astonished (said Mr. M.) to see so many resolutions on the subject of the embargo, and none contemplating its entire continuance. Is the American nation ready to bow the neck? Are we ready to submit to be taxed by Great Britain and France, as if we were their colonies? Where is that spirit which for this reason separated us from the nations of Europe? Where is that spirit which enforced a simple resolution of the old Congress, not then binding upon the people, as a law from Heaven? Is it extinct? Is it lost to this nation? Has the love of gain superseded every other motive in the breasts of Americans? Shall the majority govern, or shall a few wicked and abandoned men drive this nation from the ground it has taken? Is it come to this, that a law constitutionally enacted, even after a formal decision in favor of its constitutionality, cannot be enforced? Shall the nation give way to an opposition of a few, and those the most profligate part of the community? I think the stand we took last year was a proper one; and I am for taking every measure for enabling the nation to maintain it. Just as our measure is beginning to operate, just as provisions are becoming scarce in the West Indies and elsewhere, notwithstanding the evasions of our law, we are called upon to repeal it. I should not have made this motion at this time, had it not been for the petition just presented. When I stand here, sir, charged by a part of the community with being one of "the enemies of the people," notwithstanding I am willing to commit the petition, treating it with that respect which I conceive to be due from us to the prayer of any portion of the people, I wish my sentiments on this subject to be seen. A proclamation has been issued by one of the belligerents since the passage of our embargo law, sir. Look at it. What says it? Clearance or no clearance, we will receive any neutral vessel into our ports; and, in speaking of neutrals, recollect that there is no nation in the civilized world that has a claim to the title, except ourselves. This proclamation then tells our citizens, "Evade the laws of your country, and we will receive and protect you." This is the plain English of it. If the mad powers of Europe had entered into compact to injure us as much as they could, they could not have taken a more direct course to it. I consider them both alike, and the measures I would take would place them both on the same footing. I have made my resolutions as general as possible, to give all latitude to the committee. Mr. M. then read his resolutions as follows: "_Resolved_, That the committee appointed on that part of the President's Message which relates to our foreign relations, be instructed to inquire into the expediency of excluding by law from the ports, harbors, and waters of the United States, all armed ships and vessels belonging to any of the belligerent powers having in force orders or decrees violating the lawful commerce of the United States as a nation. "_Resolved_, That the same committee be instructed to inquire into the expediency of prohibiting by law the admission into the ports, harbors, and waters of the United States, any ship or vessel belonging to or coming from any place in the possession of any of the above-mentioned powers, and also the importation of any goods, wares, and merchandise, the growth, produce and manufacture of the dominions of any of the said powers. "_Resolved_, That the same committee be instructed to inquire into the expediency of amending the act laying an embargo, and the several acts supplementary and additional thereto." On the subject of the first of these resolutions (said Mr. M.) it might be proper to interdict the entrance of all armed vessels, although I have confined the interdiction to the belligerents. A certain time might be fixed on which the second should go into operation. I have thought proper, sir, to bring forward all these resolutions together to show my own opinion on what ought to be done. It is time for those who think the embargo a lawful and proper measure, to come forward and declare it. No other person having as yet thought proper to do it, I have now done it. I believe the embargo was right; that it was right to pass laws to enforce it; and believing this, I feel no hesitation in avowing it. Time has been when the impressment of our seamen was cried out against by a large majority of Congress. Now the cry is, that we will not let them go out and be taken. For if they go out they must be taken. Neither of the two great powers of Europe have shown the least disposition to relax their measures; neither I hope shall we. I believe we have but three alternatives--_war_, _embargo_, or _submission_. The last I discard; this nation never would submit; nor are there many people in it that would. That is out of the question; then, the only question is, whether in the present state of the world, the embargo or war is the best for us? Arm your merchantmen, as has been proposed, send them out, and you have war directly? If we are to have war, I should rather have it openly, and let the nation know that we mean it. I am for the embargo yet. I am told flour is from thirty to fifty dollars a barrel in the West Indies; I am also told that wheat is fourteen shillings sterling a bushel in England. This must have an effect, if adhered to, through Spain and Portugal. France, if she carries her armies into that country, cannot support them. Nor can Spain support her own armies, and at the same time those Great Britain sends there; for where war is waged, almost all agriculture is destroyed; and it only requires firmness in us to force them both by this measure to acknowledge our rights. If I am mistaken in my opinion, I wish that measure to be adopted which may best maintain our rights and independence. It is not the embargo which causes the pressure on the people. No, sir, it is the orders and decrees of England and France. Take a license from England, and you may trade, but on no other terms. Let an officer of the British fleet visit your vessel, and France will condemn it. These are the things which destroy commerce. The country in which I live feels the measure as much as any; there are agriculturists, and their crops remain unsold; and if they will do without the principal, and resist imposition by withholding their produce, those who make a profit by the freight of our produce, may afford to lose that profit. Can any man tell what would be the consequence of war, in these times? In common war some regard is had to the laws of nations by belligerents, and they fight each other. In the present war the belligerents disregard the laws of nations, and fight every one but one another. Mr. QUINCY said he wished the last resolution to be separated from the first, as the House would be committed by its adoption. Not that he wished to avoid a discussion of that subject, for he wished for nothing so much as that the House would permit them to go into a discussion of the subject in Committee of the Whole. [Mr. MACON consented that the last resolution should lie on the table.] Mr. Q. said he wished to press a discussion on the subject of the embargo; for such was the state of public opinion in the Northern part of the Union, that but one general sentiment prevailed, that the embargo would be immediately raised. Instead of postponing the subject from day to day, he only wished it to come before the House that gentlemen might understand one other, and put an end to the doubts that now existed. The first and second resolutions offered by Mr. MACON were agreed to without a division. The third was ordered to lie on the table--yeas 78. FRIDAY, November 18. _Territorial Governments.--Ordinance of 1787._ On motion of Mr. POINDEXTER, the House resolved itself into a Committee of the Whole, on the bill concerning Territorial Governments. The bill having been read-- Mr. BIBB said, that if the House were now called upon for the first time to pass an ordinance for the government of the Territories of the United States, he should attach very little importance to the decision of the present question. But he considered it not now an abstract question of expediency, but as one of great moment, from the circumstances with which it was connected. He denied the right of the House to pass the bill; and if they had not the right, it was surely unnecessary to argue the question on the ground of policy. It would be recollected that the Mississippi Territory was formerly the property of the State of Georgia, and ceded by that State to the United States on certain conditions, _one of which was that the ordinance for the government of the Territory Northwest of the Ohio should be the basis of the government of the Mississippi Territory_.[2] If this, said he, be one of the conditions of a compact between the United States and Georgia, surely the United States have no right to infringe it without the consent of Georgia; and I, as one of her Representatives, formally protest against the passage of this bill. It may be said that Georgia is very little interested in the abstract question, whether the Governor should or should not have the power of prorogation; but, if a right exists to alter one part of the ordinance without the consent of Georgia, it certainly implies a power to alter it in every part. Mr. POINDEXTER said he would state the reasons for which he had introduced the bill, and which would, he hoped, insure it the sanction of the committee. I will, in the first place, said Mr. P., advert to that part of the ordinance which is proposed to be amended by the bill under consideration. In the ordinance for the government of the Northwestern Territory will be found this article: "The Governor shall have power to prorogue and dissolve the General Assembly, when, in his opinion, it shall be expedient." The bill proposes to take away this power, as being arbitrary and oppressive in the extreme, and incompatible with the Constitution of the United States. This ordinance was passed previous to the adoption of the Federal Constitution, and if it had been the subject of consideration subsequent to its adoption, this provision had never been inserted, giving to Governors of Territories a power paramount to any power possessed by the President of the United States. Take away this power and a Governor will still have left the power of negativing all acts, so that none can pass without his assent; and, being the agent of the General Government, he would give consent to no law incompatible with the interests of the United States. It has been said that the ordinance cannot be altered without the common consent of the parties to it, and that the State of Georgia must be called upon to give its assent before the Congress can alter it. There are two parts of this ordinance; the first contains the form of government, and the second several articles of compact which are declared unalterable but with common consent. After reciting the form of government, the ordinance says: "The following articles shall be considered as articles of compact between the original States and the people of the States in the said Territory, and forever remain unalterable, unless by common consent, to wit." [Here follow six articles.] The ordinance declares that which follows the declaration to be unalterable, but by common consent; it follows of consequence that that which precedes the declaration is alterable. Independent of this reasoning, which cannot be refuted, at every session since we have been a Territory, there have been laws passed altering the ordinance in some shape or other. For example, the ordinance requires two judges to hold a court; and, in a variety of instances, Congress has legislated with respect to the form of government of the Territory. I had supposed that the articles of agreement between the United States and Georgia had become obsolete, with respect to the imagined necessity of the consent of Georgia to legislation on the subject of the Territory. It was urged at the last session with all the eloquence which the gentlemen from Georgia are in so great a degree possessed, and disregarded; for it was decided by both Houses that the United States had a right to rule the Territory without the consent of Georgia. The Constitution of the United States says that Congress shall "have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Can an agreement arising from the exercise of this power, supersede the right of exercising the power expressly delegated by the constitution itself? Certainly not. On the ground of policy I presume that there is no gentleman who will contend that the power of which I wish to deprive the Governors, ought to be retained. The gentleman from Georgia himself says, that if he were about to frame an original ordinance, he would not think of such a power. As the opinion of Judge Tucker has been referred to on one subject, I will refer to it on the subject of prerogative. Let it be recollected, that the power to prorogue and dissolve is one of the highest prerogatives of the King of England: that it crept into the governments of his colonies, and thence into this ordinance, previous to the adoption of the constitution. It now remains for the United States to say, whether they will copy after Great Britain, and because it is a high prerogative, give the Governors of the Territories of the United States the same powers as she gives to her Territorial Governors. I trust it will be expunged. "The title 'prerogative,' it is presumed, was annihilated in America with the Kingly Government." "This definition (of prerogative) is enough to make a citizen of the United States shudder at the recollection that he was born under a government in which such doctrines were received as catholic," &c. This is the opinion of Judge Tucker. Is not this sufficient to induce us to take away from Governors this prerogative? Is not this feature modelled after the feature in the Government of England? Certainly; and that it is transferred from her Colonial Government, I can show by the present ordinance for the government of Canada, [to which Mr. P. referred.] It is the same principle, and we have copied it. I will not object to retain this power, if any gentleman can show any advantage to be gained by it. I will suppose an extreme case; that any of the Territories designed to commit treason, and the Legislature were to pass an act giving it their sanction; (and they have shown less treasonable disposition than some of the elder States, if we may judge from occurrences of a few years past)--could not the Governor put his negative on this law? There could be no such law without his consent. It is therefore entirely unnecessary, in any possible case, to give the Governor the arbitrary power of dissolving the Legislature. There is a special reason which has operated upon my mind as forcibly as the general reason in favor of the bill on the table. In the Territory which I have the honor to represent, we have been nearly twelve months without any Legislature. The Governor thought proper to dissolve the Assembly without any reason given, for the ordinance does not bind him to assign reasons for his acts. Within a few days, a new Council has been chosen, which may again be dissolved as soon as it meets, and the Territory again left without a Legislature, and no reason assigned for the procedure. Is it possible that this Government will sanction such arbitrary practices? If it does, it will be the first case since the Revolution in which such a procedure has been sanctioned. I beg leave to refer gentlemen to the glorious year 1776. I beg them to revert to that instrument, in which all the sins of our political father, George III., were delineated, and they will find that one of the charges against him was that he permitted his Governors to dissolve the Legislatures from time to time. Are we prepared to ingraft these arbitrary principles into our constitution, and cherish them when practised in so arbitrary a manner? Instead of this ordinance being passed with deliberation, it must have passed originally _sub silentio_, and been adopted for all the new Territories without any discussion at all; for, if the principle had been investigated, it would never have been enacted into a law. In the Declaration of Independence it is stated that "he (George III.) has dissolved Representative Houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people." Here we see that, at that day, we complained of the arbitrary exercise of power, and I hope that, at this day, we shall give it a death-blow. If any gentleman wishes to retain it, let him show a single possible case in which it can properly be exercised--never, but to gratify the ambition or caprice of an individual. The people elect Representatives and send them to legislate; if they do not please the Governor, he can say, "gentlemen, go to your homes--I dissolve you." Can there be any necessity for this? But I will not detain the House longer, except to express a hope that the committee will not rise, unless it be to report the bill. Mr. TROUP said he would state, in as few words as he could, his objections to the passage of the bill. It was only the day before yesterday that this bill had been introduced into the House, proposing to alter one part of the ordinance. To-day, a petition came from another territory to alter another part of it. Before they adjourned, it was ten thousand to one that not a remnant of the ordinance would be left, with their good will. I have before stated it as my opinion, said he, that the articles of the ordinance are a compact between the people of the States and of the territories, unalterable but with the consent of both parties. With the permission of the House, I will read the opinion of Judge Tucker on this subject: "Congress, under the former confederation, passed an ordinance July 13, 1787, for the government of the territory of the United States northwest of the Ohio, which contained, among other things, six articles, which were to be considered as articles of compact between the original States and the people and States of said territory, and to remain unalterable, except by common consent. These articles appear to have been confirmed by the sixth article of the constitution, which declares, that all debts contracted and engagements entered into, before the adoption of the constitution, shall be as valid against the United States under the constitution as under the Confederation." In this case there are not only two but three parties to the articles--the United States, the State of Georgia, and the people of the Territories. You will recollect, as my colleague properly stated to you, that the right of soil and jurisdiction of this territory was originally in the people of Georgia. Of course Georgia had power to prescribe for the territory what form of government she pleased, provided it was republican. By the articles of cession, the right of soil and jurisdiction was ceded to the people of the United States, _on the express condition that the articles of the ordinance should form the government of the Mississippi Territory, and that they should not be governed otherwise_. The inference inevitably is, that the State of Georgia would not have ceded but upon the express condition; and this inference is the more inevitable, inasmuch as, in this clause, Georgia has made an express exception to a particular article in the ordinance;[3] from which, I say that Georgia intended that no other alteration should be made. What was the policy of the ordinance, and what the object of its framers? Why, assuredly, to render the governments of the Territories dependent on the Government of the United States. And how was it to be effected? By making the Territorial Legislature in a great degree dependent on the Governor, and him absolutely dependent on the Federal Executive. The moment we make the Legislature of a Territory independent of its Executive, we make it independent of the Federal Government. And again, as my colleague has correctly told you, if you have a right to repeal one part of the ordinance, you have a right to repeal another part, and so overturn the whole system at a blow. If so, what will be the effect on the articles of cession and agreement between you and Georgia? I will tell you. By the articles of cession you reserve to yourself the right of disposing of the territory; you also agree to pay Georgia one million two hundred and fifty thousand dollars out of the product of the first sales of the land. Suppose you transferred to the independent Legislature of the Mississippi Territory the right to dispose of this Territory, what security has Georgia for the payment of her one million two hundred and fifty thousand dollars? Moreover, I feel every disposition to treat with respect the people of the Mississippi Territory, and particularly as I perceive that they approve of that course of our Government, in which I most heartily concur; yet I must say that a large majority of the people have a landed interest distinct from that of the Government of the United States. Take away from the Governor his power to prorogue and dissolve, leave him the veto, and there will soon be collision. The Legislature passes an act; the Governor puts his veto on it. The Legislature stands out, and the Governor will not yield, and eventually you may, perhaps, have to decide the question of territorial property by the sword. Recollect, that upward of six thousand people have gone over in the present year, with every apparent intention to force a settlement against your interest and that of Georgia. I am very glad that the military have received orders to disperse them. I trust that they will be dispersed, and that every man who stands forth in resistance will be put to the sword. But the gentleman from Mississippi Territory is certainly mistaken as to one point. He seems to consider the Constitution of the United States as giving to the people of the Territories the same rights as the people of the States. _It is a mistaken idea, neither warranted by the letter or spirit of the constitution._ For although the constitution has declared that the people of one State are entitled to all the rights and privileges of another, yet it has not declared that the people of the Territories have the same rights as the people of the States. In another part of the constitution it is, indeed, expressly declared that Congress shall make all laws for the disposal of the Territories; but there is a salvo, that all acts done and contracts made previous to the adoption of the constitution, shall be as binding as if done afterward. The articles of the ordinance were enacted previously, and are consequently binding under the constitution. It cannot be controverted, that they were wisely adopted, and have been salutary in their operation. They were framed by the Congress of '87, composed of men whose integrity was incorruptible, and judgment almost infallible. These articles, from that time to this, have remained unaltered, and carried the Territories through difficulties, almost insuperable, to prosperity. And now, for the first or second time, an alteration is proposed, the consequence of which cannot be foreseen, without any evidence that it is either necessary or expedient. The population of every new country must necessarily be composed of a heterogeneous mixture of various tempers, characters, and interests. In a population thus composed, it would be highly ridiculous to expect that love of order and obedience to law would always predominate. Therefore the old Congress wisely reserved to itself the right to control them; to give the Governor power, when a Legislature became disorderly, to dissolve them; and for the exercise of this power he is accountable to the General Government. The gentleman from Mississippi wishes us not to treat the Territories as children, whose wild extravagances may require correcting by the indulgent hand of their parents, but as the equals of the States, without any other reason than that which he states to be the situation of the people of his Territory. They will next wish us to admit them into the Union before their population will authorize it; tell us that that Territory does not grow fast enough, and we must demolish the system for their convenience. Mr. T. adverted to the representation made by Mr. POINDEXTER, of the state of things now existing in the Mississippi Territory. If such were the situation of the Territory, and Mr. T. said he sincerely regretted it, he could put the gentleman in a way of settling the dispute in a regular and constitutional way, and which would be the most prudent and advisable. Certainly, in this dispute, one of the parties must be right and the other wrong. They had nothing to do but prefer their complaints before the proper authority, and, if they were there substantiated, they would obtain redress of their wrongs. If, on the contrary, the people were wrong and the Governor right, the wisdom of this part of the ordinance would be proved beyond question. Mr. POINDEXTER observed that the gentleman from Georgia had set out with telling the House that if the Legislature were made independent of the Governor, they could pass any law they pleased respecting land titles. The gentleman could not have looked at the ordinance, for there was an express provision that the Legislature should "never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil," &c. Independent of this, it is control sufficient if the Governor have a veto on the laws. The gentleman has told you, said Mr. P., that these articles are unalterable but with common consent. When up before, I read that part which is unalterable. It is the articles of ordinance and not the form of government; and to this Judge Tucker refers when he speaks of it. The gentleman has said, that the situation of the people would not be bettered by taking away the power, if the veto were left. In my opinion it would be ameliorated. Let the Governor retain his veto, but let them remain in session, and pass laws, that the General Government may see whether such laws are worthy of rejection or of approbation. Now, if the Governor discovers them about to pass a law or do an act he does not like, he sends them home. Lop off a little of this Executive power, and let the Legislature pass laws which he may negative, and the General Government will have an opportunity of seeing that the Governor will not consent to proper laws. Trust your Executive and distrust the people, and you sap the foundation of the Government. Whatever leads to the conclusion that the people are always wrong and the Executive right, strikes at the root of republican institutions. The gentleman has spoken of the wildness and extravagance of the people of the Mississippi Territory. Does he recollect the invasion of the Spaniards two years ago? That, at a few days' notice, at the requisition of the Commander-in-chief, a detachment of two hundred and fifty militia were sixty miles on their march? When an arch traitor from the East designed to sever the Union, the people of the Territory, without call, assembled near the city of Natchez, and arrested the traitor. These proceedings cannot be exceeded even by the spirit or prudence of the State of Georgia. I hope the indignation of this House will be displayed at these insinuations against the motives of people who have manifested the greatest patriotism. In respect to the late measures of the General Government, no people feel them more severely than the people of Mississippi, and no people better support them. There may be symptoms of wildness and extravagance, but they show a submission to the laws and measures of the Union. The gentleman talks of tender parents. If he considers the State of Georgia as one of our tender parents, I protest against it. Although she be one of our parents, there has been no proposition ever made on this floor, for the good of the Territory, which has not met the opposition of that State. But these are subjects on which I will not dwell. The gentleman has stated that a number of people have gone over to the Mississippi Territory to settle lands, against the express provisions of the law. That, under the pretext of a purchase from an Indian, named Double Head, people have gone over to settle lands, is true; but from where? From Georgia. They are citizens of Georgia; people nurtured by this tender parent into a state of manhood, and unwilling to participate longer in the tender cares of the State of Georgia. They have been, very properly, ordered to be driven off by military force, because they have infringed a law of the United States. But these things do not touch the present question. I now propose to take away a power which has been, by mistake, incorporated into the constitution of a free people. Mr. BIB said that the State of Georgia had never undertaken to legislate for the Mississippi Territory; but there was a compact existing between the United States and Georgia, and he called upon the United States to adhere to it. They dared not violate it, except they could violate the most solemn compact--the constitution. Mr. TROUP observed that it had been said this power of the Governor was a badge of slavery copied from the British Constitution. That in many things they had been copied too far, he agreed; but as to this prerogative, it was no such badge of slavery, and was found not only in the articles of the ordinance, but in the constitutions of various States, qualified in a greater or less degree. Mr. T. quoted the constitutions of New York and Massachusetts, both which States had been considered republican. Massachusetts, to be sure, was a little wavering now, but he hoped she had not quite gone over to the enemy yet. These constitutions gave a qualified prerogative to the Governor of the State. The committee now rose--58 to 36. Mr. TROUP moved that the further consideration of the bill be postponed indefinitely--[equivalent to rejection.] Mr. POINDEXTER calling for the yeas and nays on the motion, it was decided--yeas 57, nays 52, as follows: YEAS.--Lemuel J. Alston, Willis Alston, jun., Ezekiel Bacon, David Bard, William W. Bibb, William Blackledge, John Blake, junior, Adam Boyd, Robert Brown, Joseph Calhoun, John Campbell, Martin Chittenden, Samuel W. Dana, John Davenport, jun., William Ely, William Findlay, Francis Gardner, Charles Goldsborough, Edwin Gray, John Heister, William Hoge, Richard S. Jackson, Robert Jenkins, Walter Jones, James Kelly, William Kirkpatrick, John Lambert, Joseph Lewis, jun., Robert Marion, William McCreery, William Milnor, Nicholas R. Moore, Jonathan O. Mosely, Gurdon S. Mumford, Wilson C. Nicholas, Timothy Pitkin, junior, John Porter, Josiah Quincy, John Randolph, Matthias Richards, Samuel Riker, John Russell, Dennis Smelt, Henry Southard, William Stedman, Lewis B. Sturges, Peter Swart, Samuel Taggart, Benjamin Tallmadge, John Taylor, George M. Troup, Jabez Upham, James I. Van Allen, Daniel C. Verplanck, Robert Whitehill, David R. Williams, and Nathan Wilson. NAYS.--Joseph Barker, Burwell Bassett, William A. Burwell, William Butler, Matthew Clay, John Clopton, John Culpeper, John Dawson, Josiah Deane, Joseph Desha, Daniel M. Durell, James Elliot, John W. Eppes, James Fisk, Meshack Franklin, Thomas Gholson, jun., Peterson Goodwyn, Isaiah L. Green, John Harris, William Helms, James Holland, David Holmes, Benjamin Howard, Daniel Isley, Richard M. Johnson, Nathaniel Macon, Daniel Montgomery, junior, John Montgomery, Jeremiah Morrow, John Morrow, Roger Nelson, Thomas Newbold, Thomas Newton, John Pugh, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Benjamin Say, Ebenezer Seaver, Samuel Shaw, James Sloan, John Smilie, Jedediah K. Smith, John Smith, Samuel Smith, Richard Stanford, Clement Storer, John Thompson, Archibald Van Home, Jesse Wharton, Isaac Wilbour, and Alexander Wilson. So the bill was postponed indefinitely. MONDAY, November 21. Another member, to wit, JOHN BOYLE, from Kentucky, appeared, and took his seat in the House. _Naturalized British Subjects._ Mr. HOWARD presented a petition of sundry inhabitants of the State of Kentucky, stating that the King of Great Britain having, by his proclamation of the sixteenth of October, one thousand eight hundred and seven, claimed the allegiance of all persons who may have been born in his dominions, and were not inhabitants of the United States of America at the period of their Revolution, and disregarding the laws of naturalization in other countries, hath authorized the impressment into his service of his pretended subjects, and treated as traitors such as may have taken up arms against him in the service of their adopted country; the petitioners being, at the present time, precluded from the privilege of following commercial pursuits on the high seas in safety, therefore pray that such measures be adopted by Congress as may effectually resist the unjust assumption of power claimed and exercised by a foreign nation; and pledging themselves to support with their lives and fortunes whatever steps may be taken, or acts passed, by the General Government, for the welfare of the Union.--Referred to Mr. HOWARD, Mr. JOHN MORROW, and Mr. HARRIS, to examine the matter thereof, and report their opinion thereupon to the House. _Miranda's Expedition._ Mr. LOVE, from the committee to whom was referred, on the sixteenth instant, the petition of thirty-six citizens of the United States now confined at Carthagena, in South America, under sentence of slavery, made a report thereon; which was read, and ordered to be referred to a Committee of the whole House to-morrow. The report is as follows: That it appears, from the statement of the petitioners, that, in February, 1806, they sailed from New York on board the Leander, a ship owned by Samuel G. Ogden, the command of which was, after getting to sea, assumed by General Miranda. That, from New York, the said ship sailed to Jacmel, where the said Miranda procured two schooners, on board which the petitioners were placed, which, together with the Leander, sailed, under the command of Miranda, about the last of March, in the same year, for the northern parts of South America, and arrived on the coast of Terra Firma in the latter part of April following. That, upon their arrival on the said coast, the two schooners, on board which the petitioners were embarked, were captured by two Spanish armed vessels; the ship Leander, with Miranda on board, having made her escape. That the petitioners, together with ten others, were convicted by a Spanish tribunal, at Porto Cabello, of the crime of piracy, from the circumstances of suspicion which attached to their situation, and not from any act of that kind committed on the high seas; that the ten others above mentioned were sentenced to death, and the petitioners some to eight, others to ten years' slavery, which they now are suffering; some chained together, others closely confined under heavy irons and a guard, destined to other places and to similar punishment. The petitioners state that they were entrapped into the service of the said Miranda, on the said expedition, by assurances made at the time of their engagements, that they were to be employed in the service of the United States, and under the authority of the Government. For the truth of their statement, and a confirmation of the charges they make against certain persons of having thus deceived and betrayed them into an involuntary co-operation in the design of fitting out an armament against a nation in amity with the United States, they refer to the testimony of several persons, said to be inhabitants of the city of New York, and to have had proposals made to them similar to those by which the petitioners were induced to engage on board the Leander. The petitioners also state that no opportunity was offered them of escaping from the service of the said Miranda and his associates; that they were restrained under the most rigorous discipline, and at Jacmel, the only place where an opportunity of escape might have been probable, they were strictly guarded to prevent it. For the truth of this they refer to certain captains of vessels then at Jacmel belonging to the ports of Philadelphia and Baltimore. The committee further report that the foregoing statements of the petitioners are unaccompanied by any competent testimony in support of them, and, at the same time, are uncontradicted by any opposing circumstances; they are of opinion that a very strong probability of the petitioners not having been guilty of the crime of wilfully engaging in the unlawful expedition of Miranda attends their application: first, because the petitioners have made a detailed statement of facts relative to the deception practised on them, referring to such species of evidence as to render their contradiction easy, if not founded in truth, and thus lessen their claim on their country, and diminish their hopes of liberation: second, because it is presumed they were proven to the Spanish tribunal before which they were convicted to have been offenders in a secondary degree, those who were proven to have been more heinously guilty having been sentenced to suffer death. The committee, however, are of opinion that, should the petitioners have been guilty of a crime against the United States by a voluntary or otherwise culpable infraction of its laws, the dictates of humanity no less than the principles of justice, ought to influence the Legislature of the United States to adopt the proper means of restoring them to their country, in order that they may expiate the offence by a punishment suited to but not transcending the magnitude of their crime. The committee, therefore, beg leave to submit the following resolution for the consideration of the House. _Resolved_, That the President of the United States be requested to adopt the most immediate and efficacious means in his power to obtain from the Viceroy of Grenada, in South America, or other proper authority, the liberation of thirty-six American citizens, condemned on a charge of piracy, and now held in slavery in the vaults of St. Clara, in Carthagena, and that the sum of ---- dollars be appropriated for that purpose. TUESDAY, November 22. Two other members, to wit: from New York, PHILIP VAN CORTLANDT, and from South Carolina, RICHARD WYNN, appeared, and took their seats in the House. _Additional Revenue Cutters._ Mr. NEWTON called for the order of the day on the bill authorizing the President to employ twelve additional revenue cutters. The House having resolved itself into a Committee of the Whole, Mr. NEWTON rose to state that the Committee of Commerce and Manufactures had understood, from the proper authorities, there was a necessity for the proper execution of the revenue laws, that the force under the direction of the Treasury Department should be considerably increased. Mr. DANA inquired whether any written information touching the necessity there might be for twelve revenue cutters had been received by the committee--any letter from the Secretary of the Treasury? He thought it was necessary, if so, that it should be submitted to the House. Mr. NEWTON replied that there had been no written communication from the proper Department to the committee. They had not thought it essential, having also understood that the Secretary of the Treasury was particularly occupied. However, he had taken the shortest method, by waiting upon the Secretary himself, and had received the information before alluded to. He had understood that the probable expense of each cutter would be about $10,000, or $120,000 for the whole, each cutter to carry about twenty men. Mr. QUINCY thought that the correct mode of proceeding would require other than mere verbal information. Respect for themselves should induce gentlemen not to act without official communication upon the subject. They could not, upon any other conditions, agree to so great an augmentation of the force under the direction of the Treasury Department. There had, heretofore, been but ten cutters employed. There were never more than ten when commerce was at its height and the revenue flourishing. But now, the House was called upon to vote twelve additional cutters, when we are without revenue, without commerce, and there is no information of an official nature before the House upon which it might act. Mr. NEWTON could not see that it was of any consequence to the House, whether there had been a written communication to it upon the subject, so that the information came through the proper organ, from the proper authority. It was necessary, in times of difficulty like the present, to act with spirit and promptitude. The laws should be executed with the greatest strictness; and it was always wise to take time by the forelock. Mr. BLACKLEDGE said that the expense of building the cutters would be defrayed by the detection of goods attempted to be smuggled. There had already been many condemnations. They were taking place every day. And it was to support the laws that these cutters had been called for. On the motion of Mr. NEWTON, that the committee rise and report the bill, it was carried--yeas 47, nays 46. THURSDAY, November 24. Another member, to wit, BARENT GARDENIER, from New York, appeared, and took his seat in the House. MONDAY, November 28. Another member, to wit, MATTHEW LYON, from Kentucky, appeared, and took his seat in the House. _Foreign Relations._ On the motion of Mr. CAMPBELL, the House resolved itself into a Committee of the Whole, on the report of the committee on the subject of our foreign relations. The first resolution, in the following words, having been read: _Resolved_, That the United States cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of Great Britain and France: Mr. CAMPBELL opened the debate. He said that ill health had hitherto prevented and might hereafter prevent him from giving that attention to the subject which the all-important crisis would seem to require; it was, however, his duty to bring the subject before the House. The committee having in their report presented to the House the view in which they had considered the subject referred to them, and the reasons generally which induced them to present these resolutions to the House, he said it was not his intention at this time to enter into a discussion of their merits. Those reasons had been deemed sufficient by the committee to justify them in presenting these resolutions to the House; and as the objections to this, if any there were, could not be foreseen, he would not attempt to anticipate them. According to the view which he himself had taken of the first resolution, it could require no discussion, it was too clear to require demonstration, and too self-evident to need proof of its propriety. It might indeed seem to require an apology from the committee for presenting a proposition which every American must long since have determined for himself. When the question had been first presented to his consideration, it had appeared to him that it was totally superfluous, and to be doing little more than announcing to the world that the United States were still independent; but on further consideration, it had been deemed by the select committee of some importance that in the present critical situation of the United States, they should fix on some point at which all would meet. After a perusal of the documents laid before the House at the opening of the session, Mr. C. said it had been supposed that no one would hesitate in declaring his indignation at the flagrant violations and encroachments on our rights by the belligerent powers, while it had been supposed that some difference of opinion might exist as to the mode of resistance. After it was once determined that they would not submit, that they would repel aggression, it had been supposed that they might, with greater probability of unanimity, discuss the course proper to be pursued. With a view to this the committee had presented this resolution to the House. It was expected that all would unite in it and prove to the world that the Representatives of every portion of the American people were determined to maintain their rights, for the belligerent powers really seemed to suppose that the American people had forgotten them, and had therefore assumed the right of prescribing the course of conduct which we should pursue. To submit to regulations of foreign powers, which limited the conduct of the American people, and prescribed the rules by which they were to be governed, which pointed out the very ports to which they should or should not go, which fixed the tribute or tax which they should pay, would be not only to abandon their dignity and honor, but to surrender, shamefully surrender our independence. Mr. C. said he would not take up the time of the committee in showing that the Orders of Council of Great Britain and the Decrees of France, were, on the part of those nations, an assumption of power to give laws to this country, in direct violation of our neutral rights, and an encroachment on our sovereignty. This would require no argument. The real question is, said he, shall we govern ourselves or be controlled by the will of others; shall we become tributary or not, shall we submit or be independent? And to the committee he cheerfully left the decision of this question. Mr. MUMFORD next addressed the Committee of the Whole. He observed, that although he had the honor of being one of the Committee of Foreign Relations, who framed the report under consideration, he dissented from that report in some respects. We had now arrived at a momentous crisis in the affairs of our country, and he hoped the House would deliberate with that firmness and moderation which became the Representatives of the free and independent people they had the honor to represent on this all interesting concern. However they might differ on smaller points of minor importance, yet when the best interest of the country was at stake, he hoped they would unite in some mode to secure our rights and promote the interests of the United States. The proposition which he had the honor to move a few days ago, was consonant in some degree to the instructions offered by our Ministers to Great Britain and France, offering to remove the embargo in relation to either that should rescind their obnoxious decrees. Neither of them having receded, Mr. M. said he would continue the embargo in relation to them both. Nay, further, he would inflict the severest penalties on any one who should receive a license or voluntarily pay tribute to either of them. He considered them both alike. He wished to see the country placed in a complete posture of defence; but he could not see any good reason why we should not trade with those nations who were willing to receive us on friendly terms, and to trade with us on the principles of reciprocity and mutual interests. This would not compromit the honor of the nation. Even admitting that it might possibly lead to war, which he doubted, he was convinced that the citizens of this country would rise _en masse_ in support of that commerce which neither France nor England had any right to interdict. He did presume, with all the zeal of some gentlemen for irritating measures, it was not seriously contemplated to declare war against all mankind; he was for having at least a few friends in case of need. What was our situation now? The President of the United States had told them, after speaking of France and England, that "our relations with the other powers of Europe had undergone no material change since the last session." This being the case, our commerce was open with them all except France and Great Britain and their dependencies. Mr. QUINCY.--Mr. Chairman, I am not, in general, a friend to abstract legislation. Ostentatious declaration of general principles is so often the resort of weakness and of ignorance, it is so frequently the subterfuge of men who are willing to amuse, or who mean to delude the people, that it is with great reluctance I yield to such a course my sanction. If, however, a formal denunciation of a determination to perform one of the most common and undeniable of national duties, be deemed by a majority of this House essential to their character, or to the attainment of public confidence, I am willing to admit that the one now offered is as unexceptionable as any it would be likely to propose. In this view, however, I lay wholly out of sight the report of the committee by which it is accompanied and introduced. The course advocated in that report is, in my opinion, loathsome; the spirit it breathes disgraceful; the temper it is likely to inspire neither calculated to regain the rights we have lost, nor to preserve those which remain to us. It is an established maxim, that in adopting a resolution offered by a committee in this House, no member is pledged to support the reasoning, or made sponsor for the facts which they have seen fit to insert in it. I exercise, therefore, a common right, when I subscribe to the resolution, not on the principles of the committee, but on those which obviously result from its terms, and are the plain meaning of its expressions. I agree to this resolution, because, in my apprehension, it offers a solemn pledge to this nation--a pledge not to be mistaken, and not to be evaded--that the present system of public measures shall be totally abandoned. Adopt it, and there is an end of the policy of deserting our rights, under pretence of maintaining them. Adopt it, and we can no longer yield, at the beck of haughty belligerents, the right of navigating the ocean, that choice inheritance bequeathed to us by our fathers. Adopt it, and there is a termination of that base and abject submission, by which this country has for these eleven months been disgraced, and brought to the brink of ruin. That the natural import and necessary implication of the terms of this resolution are such as I have suggested, will be apparent from a very transient consideration. What do its terms necessarily include? They contain an assertion and a pledge. The assertion is, that the edicts of Great Britain and France are contrary to our rights, honor, and independence. The pledge is, that we will not submit to them. Concerning the assertion contained in this resolution I would say nothing, were it not that I fear those who have so long been in the habit of looking at the orders and decrees of foreign powers as the measure of the rights of our own citizens, and been accustomed, in direct subserviency to them, of prohibiting commerce altogether, might apprehend that there was some lurking danger in such an assertion. They may be assured there can be nothing more harmless. Neither Great Britain nor France ever pretended that those edicts were consistent with American rights; on the contrary, both these nations ground those edicts on the principle of imperious necessity, which admits the injustice done at the very instant of executing the act of oppression. No gentleman need to have any difficulty in screwing his courage up to this assertion. Neither of the belligerents will contradict it. Mr. Turreau and Mr. Erskine will both of them countersign the declaration to-morrow. With respect to the pledge contained in this resolution, understood according to its true import, it is a glorious one. It opens new prospects. It promises a change in the disposition of this House. It is a solemn assurance to the nation that it will no longer submit to these edicts. It remains for us, therefore, to consider what submission is, and what the pledge not to submit implies. One man submits to the order, decree, or edict of another, when he does that thing which such order, decree, or edict commands; or when he omits to do that thing which such order, decree, or edict prohibits. This, then, is submission. It is to take the will of another as the measure of our rights. It is to yield to his power--to go where he directs, or to refrain from going where he forbids us. If this be submission, then the pledge not to submit implies the reverse of all this. It is a solemn declaration that we will not do that thing which such order, decree, or edict commands, or that we will do what it prohibits. This, then, is freedom. This is honor. This is independence. It consists in taking the nature of things, and not the will of another, as the measure of our rights. What God and Nature has offered us we will enjoy, in despite of the commands, regardless of the menaces of iniquitous power. Let us apply these correct and undeniable principles to the edicts of Great Britain and France, and the consequent abandonment of the ocean by the American Government. The decrees of France prohibit us from trading with Great Britain. The orders of Great Britain prohibit us from trading with France. And what do we? Why, in direct subserviency to the edicts of each, we prohibit our citizens from trading with either. We do more; as if unqualified submission was not humiliating enough, we descend to an act of supererogation in servility; we abandon trade altogether; we not only refrain from that particular trade which their respective edicts prescribe, but, lest the ingenuity of our merchants should enable them to evade their operations, to make submission doubly sure, the American Government virtually re-enact the edicts of the belligerents, and abandon all the trade which, notwithstanding the practical effects of their edicts, remain to us. The same conclusion will result, if we consider our embargo in relation to the objects of this belligerent policy. France, by her edicts, would compress Great Britain by destroying her commerce and cutting off her supplies. All the continent of Europe, in the hand of Bonaparte, is made subservient to this policy. The embargo law of the United States, in its operation, is a union with this continental coalition against British commerce, at the very moment most auspicious to its success. Can any thing be more in direct subserviency to the views of the French Emperor? If we consider the orders of Great Britain, the result will be the same. I proceed at present on the supposition of a perfect impartiality in our Administration towards both belligerents, so far as relates to the embargo law. Great Britain had two objects in issuing her orders. First, to excite discontent in the people of the continent, by depriving them of their accustomed colonial supplies. Second, to secure to herself that commerce of which she deprived neutrals. Our embargo co-operates with the British views in both respects. By our dereliction of the ocean, the continent is much more deprived of the advantages of commerce than it would be possible for the British navy to effect, and by removing our competition, all the commerce of the continent which can be forced is wholly left to be reaped by Great Britain. The language of each sovereign is in direct conformity to these ideas. Napoleon tells the American Minister, virtually, that we are very good Americans; that, although he will not allow the property he has in his hands to escape him, nor desist from burning and capturing our vessels on every occasion, yet that he is, thus far, satisfied with our co-operation. And what is the language of George the Third, when our Minister presents to his consideration the embargo laws? Is it _Le Roi s'avisera_? The King will reflect upon them. No; it is the pure language of royal approbation, _Le Roi le veut_. The King wills it. Were you colonies he could expect no more. His subjects as inevitably get that commerce which you abandon as the water will certainly run into the only channel which remains after all the others are obstructed. In whatever point of view we consider these embargo laws in relation to these edicts and decrees, we shall find them co-operating with each belligerent in its policy. In this way, I grant, our conduct may be impartial; but what has become of our American rights to navigate the ocean? They are abandoned, in strict conformity to the decrees of both belligerents. This resolution declares that we shall no longer submit to such degrading humiliations. Little as I relish, I will take it, as the harbinger of a new day--the pledge of a new system of measures. WEDNESDAY, November 30. _Foreign Relations._ Mr. RICHARD M. JOHNSON.--I am more than astonished to see this House inundated by every mail with publications, from the East, declaring that we have no cause of complaint against Great Britain; that we should rescind the proclamation of interdict against British armed vessels; that we should repeal the non-importation law; that the embargo should be taken off as to Great Britain; that we should go to war with France; that punctilio prevents a settlement of our differences with Great Britain; inviting the people to violate and disregard the embargo, to put the laws and the constitution at defiance, and rise in rebellion. These considerations induced me to examine this matter, and to prove to every honest American, what we all believe in this place, that the object of one power, is to destroy our neutrality and involve us in the convulsing wars of Europe; and the object of the other, a monopoly of our commerce, and the destruction of our freedom and independence. Let evidence as conclusive as holy writ put the enemies of this insulted country to shame. We are informed by our Minister in London, (Mr. Monroe,) in a communication dated August, 1807, that a war party of powerful combination and influence existed in Great Britain, who wanted to extend their ravages to this country; that we could not make calculations upon the justice of Great Britain; that in her many assumptions of power and principle she would yield but from the absolute necessity. Who is this war party? The British navy, to whom we have opened our ports, and extended all the hospitalities of a generous nation; while in the enjoyment of which that very navy waged war against our unoffending citizens. The ship owners, the East and West India merchants, and what cause have they for war? The enterprising citizens of the United States have been their rivals and superiors in a lawful and profitable commerce; and, lastly, political characters of high consideration. These compose this war party. In January, 1804, in an official communication of Mr. Madison, Mr. Monroe is charged with the suppression of impressment as his primary object; 2d, the definition of blockade; 3d, the reduction of the list of contraband; 4th, the enlargement of our trade with hostile colonies. The negotiation opens, and what is done? With industry and exertion our Minister was unable to bring the British Cabinet to any amicable arrangement. Lords Hawkesbury, Harrowby, Mulgrave, and Mr. Fox, succeeded each other, and every attempt to negotiate was in vain. Each of them brings expressions of good will and good disposition towards the United States, and a wish for amicable arrangement. But these professions and dispositions evaporate in invitations to the country and the city--in promises and procrastinations. To-day we are amused with a conversation at the foreign office, which animates with a lively hope--to-morrow hope is swallowed up in despair--and the third day announces some new injury. Affairs on the continent now call the attention of the British Ministry, and with every disposition of good will there must be a pause. In this amicable pause business required that our Minister should go to Old Spain; but upon his return to England, what astonishment seized his mind at the sad spectacle the changing scenes presented. Under the old rule of '56, and other interpolations upon public law, our merchant vessels are swept from the bosom of the ocean without notice, by British cruisers, and carried into British ports for condemnation. But why this change? A coalition had been formed in the North against France. British gold effected it. Russia and Austria had combined against France, and here the hopes of England rested. But we all know her hopes were blasted. This is the reason why the blow was aimed, and your commerce sacrificed. The remonstrances of our Minister could not keep pace with new aggressions. This temporizing policy of England, and the destruction of our commerce, buried party spirit in America for the moment, and produced an indignant protest against her conduct from the great commercial cities in the Union, in which their lives and their property were pledged to support the Government in measures of just retaliation. And on this occasion the merchants of Boston requested the President to send a special Envoy to England, to give a greater solemnity to our claims of indemnity and future security. The cause of the merchants became a common cause, and the non-importation law was enacted, and Mr. Pinkney sent as a special Minister, agreeably to request. Let the commercial interest cease to complain. It is for them principally that we now suffer. These deeply-inflicted wounds upon the commerce of America, ingulfed for a moment the consideration of the primary object of Mr. Monroe's mission--the impressment of seamen--and it would seem, that when our Minister pressed one great subject of complaint, some greater outrage was committed to draw our attention from the former injury. Thus the unavailing exertions of our Minister for upwards of two years at the Court of St. James, eventuated in an extraordinary mission, and the non-importation law; a measure of retaliation, and which rendered us less dependent upon a foreign Government for such articles as can be manufactured at home. To bring further evidence of British hostility, let us attend a little to the Administration of Mr. Fox. He came into office about the 1st of February. On the 31st of May, information was received in London of the extra mission of Mr. Pinkney. Mr. Monroe, therefore, had an opportunity of about four months with Mr. Fox to settle our differences, without any interruption, not even the ideal one which has been suggested, as giving a temporary stay to the negotiation, viz: the waiting the arrival of Mr. Pinkney. The United States had a right to expect something like justice from this able Minister, because he entertained a sincere desire to conciliate the friendship of this nation by acts of justice. But in this just expectation we were disappointed. The hostility of other members of the Cabinet with whom he was associated, was the real cause of difficulty, joined perhaps with his sudden indisposition and death. Mr. FOX acknowledged our right to the colonial trade; he promised to stop the capture and condemnation of our merchant vessels; but when pressed to answer our complaints in writing, he promised, but broke that promise, and ultimately refused to give any orders with respect to the capture and condemnation of our vessels. Thus the golden apple was presented to our grasp, and then snatched forever from our sight. Now let the committee attend to the chapter of negotiation, which produced the rejected treaty. First, the subject of blockade is proposed, and a definition demanded. We denied the doctrine of paper breastworks, spurious and illegitimate blockades, to be executed in every sea by the British Navy, of which our neutral rights were the victims. Such as the blockade of the coast of Europe from the Elbe to Brest, of the Elbe, the Weiser and Ems. The whole coast of Old Spain, of the Dardanelles, and Smyrna, and of Curaçoa. Upon this subject, Great Britain would yield nothing. 2. No duty can be laid upon American exports, but Great Britain imposes a duty of four per cent. upon her exports to the United States, under the name of a convoy duty; by which duty the citizens of the United States pay to Great Britain an annual amount of $1,300,000; but upon this unfriendly discrimination she will yield nothing. 3. Upon the search of merchant vessels she would yield nothing. 4. Upon the colonial trade she imposed new restrictions. She would yield nothing; a trade which produced the United States revenue to the amount of $1,300,000 per annum; and furnished exports from the United States of $50,000,000 annually. 5. Upon the West India trade she would yield nothing, and upon the East India trade she imposed new restrictions. 6. Upon the impressment of seamen, the subject was too delicate; she was fighting for her existence; she would yield nothing. 7. Upon the mutual navigation of the St. Lawrence, so important to the Northern States, they would yield nothing; but would demand a monopoly of the fur trade, and influence over the Indians within our own limits. Thus ended the chapter of negotiation. I turn with indignation from this to a new species of injury, involving the events connected with and preceding the President's proclamation interdicting the armed vessels of Great Britain from our waters. I allude to the conduct of the officers of the British navy, and the evident connivance of the British Government. I will only mention three prominent cases: 1st. The Cambrian, and other British cruisers, commanded by Captain Bradley, who entered the port of New York, and in defiance of the Government arrested a merchant vessel, and impressed into the ships of war a number of seamen and passengers, refused to surrender them upon demand, and resisted the officers, served with regular process of law for the purpose of arresting the offenders. 2d. The case of the Leander, Capt. Whitby, with other British armed vessels, hovering about New York, vexing the trade of that port, arresting a coasting vessel of the United States by firing a cannon, which entered the vessel and killed John Pierce. The murder of Pierce, a fact so notorious, could not be proved in a sham trial in England, though the most unexceptionable characters are sent as witnesses from the United States; and not even an explanation is made to satisfy this country for the murder of a citizen. Call upon the citizens of New York, who saw the body of their slaughtered countryman; ask the mourning relatives of the murdered Pierce, whether he was slain or not! But from this tragic scene we must turn to one of a deeper hue. 3d. The attack upon the Chesapeake. This vessel had just left the shores of Virginia, leaving the British ship of war, the Leopard, enjoying the hospitalities of our laws. The Chesapeake was bound to the Mediterranean in defence of our rights. One hundred and seventy American tars were on board, who had undertaken this honorable enterprise. Unsuspicious of harm, while their rough cheeks were bedewed with tears in parting from their friends and country, their powder-horns empty, rods mislaid, wads too large, guns not primed--all was confusion. In this unhappy moment the messenger of death comes. The unfortunate Barron refuses to permit his men to be mustered by any but an American officer. His Government had given the command. This is the provocation. The vessel is attacked, and, without resistance, eight are wounded, three are killed, and four taken and carried into British service, one of whom has been hung as a malefactor in Nova Scotia. It has been said that the Goddess of Liberty was born of the ocean. At this solemn crisis, when the blood of these American seamen mingled with the waves, then this sea nymph arose indignant from the angry billows, and, like a redeeming spirit, kindled in every bosom indignation and resentment. A nation of patriots have expressed their resentment, and the sound has reached the utmost bounds of the habitable world. Let a reasoning world judge whether the President's proclamation was too strong for this state of things, and whether it should be rescinded without atonement. Do the wrongs of this nation end with this outrage? No. Clouds thicken upon us; our wrongs are still increased; during the sensibility of this nation, and without atonement for the attack upon the Chesapeake, on the 16th October, 1807, a proclamation issues from the British Cabinet respecting seafaring persons, enlarging the principles of former encroachments upon the practice of impressment. This proclamation makes it the indispensable duty of her naval officers to enter the unarmed merchant vessels of the United States, and impress as many of the crew as a petty and interested naval officer may without trial point out as British subjects. The pretension is not confined to the search after deserters, but extended to masters, carpenters, and naturalized citizens of the United States--thus extending their municipal laws to our merchant vessels and this country, and denying us the right of making laws upon the subject of naturalization. The partners of British and Scotch merchants can cover their property and their merchandise from other nations under the neutral flag of the United States to Leghorn, Amsterdam, Hamburg, &c. But the patriotic Irishman or Englishman who has sought this protecting asylum of liberty, are not secured by our flag from the ruthless fangs of a British press-gang. And at this very moment our native citizens and adopted brethren, to a considerable number, are doomed to the most intolerable thraldom in the British navy by this degrading practice. There the freedom of our citizens depends upon the mercy of naval officers of Great Britain; and, upon this subject, every proposition for arrangement is trampled down by these unjust pretensions. Information was just received of the execution of the Berlin Decree, when the papers from every quarter announced the existence of the British Orders in Council, making a sweeping dash at our rightful commerce. Something must be done. The events which been have retraced, all pressed upon us. The treatment of our Minister, and his unavailing exertions; the result of the negotiation which gave birth to the rejected treaty; the memorials of the merchants; the outrageous conduct of the British naval officers upon our seaboard; the connivance at their conduct by the British Government; the proclamation of October 16, 1807; the execution of the Berlin Decree, and the Orders in Council. These considerations required the arm of Government, and at this inauspicious period, when the clouds which had so long threatened and darkened our political horizon gathered to a thick and horrible tempest, which now seemed about to burst upon our devoted nation, the embargo snatched our property from the storm, and deprived the thunderbolt of its real calamities. The effects of this measure at home and abroad, notwithstanding its inconveniences, will best attest the wisdom of the measure, which will be increased in its efficacy by a total non-importation law. As a measure of coercion upon other nations, I not only have the strongest hopes, but also a rational confidence in it, founded upon the most conclusive evidence. The misrepresentations in this country, the violations of the embargo, and the hope of changing the parties in the United States, or of producing a separation of the States; these miscalculations have destroyed entirely the efficacy of this measure, and been a main cause why Great Britain has not relaxed in her injustice towards America. And if we can rigidly enforce this system, my confidence is undiminished, my faith strong, that the United States will have reasonable terms offered to them. Yet the violators of your laws have been the great cause why the present state of things has been protracted. They are as infamous as the cowboys in the Revolution, who embodied themselves to feed our enemies with the only cow of a weeping widow, or a poor soldier who was fighting for his country. The commerce of the United States with the West Indies, the Continent of Europe, and Great Britain, will present to this committee the evidence upon which this faith is bottomed. The United States have furnished the West Indies with the essentials of existence, and also have afforded a market for the colonial produce of those islands. In fact, they cannot live without provisions from the United States in the present state of the world. These islands have been reduced to wretchedness and want already, notwithstanding the violations of the embargo, and flour, we learn, has been as high as $20, $30, $40, $50, and $60 per barrel. The vast importance of these possessions alone, to the mother country, might have been sufficient to have produced a settlement of our differences, if other considerations had not prevented. Attend to the trade with England and the continent previous to the Orders in Council. The annual exports of British manufactures to the United States amount to twelve million pounds sterling. In exchange for these manufactured articles, Great Britain receives to the amount of four million pounds sterling in tobacco, cotton, wheat, and the substantials of life. The eight millions which remain due must be paid in money or bills. To raise this money, the American merchants carry to the Continent of Europe produce of the United States to the amount of this eight millions, which is sold, and the amount remitted to the merchants in London to pay the debts of our merchants. This trade is now destroyed by the Orders in Council, and not the embargo--for this very measure has saved our vessels from capture, our merchandise from condemnation, and our seamen from impressment. THURSDAY, December 1. Another member, to wit, THOMAS MOORE, from South Carolina, appeared, and took his seat in the House. JESSE B. THOMAS, the delegate from the Indiana Territory, returned to serve in the room of BENJAMIN PARKE, who hath resigned his seat, appeared, was qualified, and took his seat in the House. TUESDAY, December 6. _Foreign Relations._ The report of the Committee on Foreign Relations being again before the House, and the question still on the first resolution-- Mr. GHOLSON said: Mr. Speaker, were I to yield to my embarrassment on the present occasion, I should not trespass on your indulgence. But when I reflect upon the great national importance of the question now before the House, and upon the high responsibility which its decision must attach to me as one of the Representatives of the people; I am impelled, from considerations of duty, to assign to you the reasons by which I am influenced. It has been said, sir, with great truth, that the present is an extraordinary crisis. It seems indeed to have been reserved for the age in which we live, to witness a combination of political events unparalleled in the annals of time. Almost the whole civilized world has been within a few years convulsed by wars, battles, and conquests. Kingdoms and empires have been revolutionized; and we behold a vast continent assuming a new aspect under a new dynasty. Those laws which from time immemorial have prescribed and limited the conduct of nations, are now contemptuously prostrated, innocent neutrality is banished from the ocean, and we hear a grim tyrant asserting himself the sovereign of the seas. Thus the most essential part of the globe is attempted to be partitioned between two domineering rival belligerents. Sir, it would have been a subject of the sincerest felicitation if our happy country could have been exempt from this universal concussion. But we are fated to share evils in the production of which we have had no participation. In inquiring, Mr. Speaker, into the causes of these evils and the policy by which we are to be extricated from them, I am conscious of two things--of my utter incompetency to the elucidation of so great a subject, and of the unavoidable necessity of touching upon ground already occupied by gentlemen who have preceded me in this debate. When, sir, I recur to the resolutions reported by the Committee of Exterior Relations, I find one which proposes resistance to the edicts of Great Britain and France; and another which recommends a system of non-intercourse between the United States and those countries. In hearing the first resolution treated as an abstract proposition, my astonishment has been not a little excited. I have always understood an abstract proposition to be the assertion of some general principle without any specific application. Here is a distinct position, with a direct reference to particular orders and decrees. The resolution therefore is itself specific and appropriate, to use the apt terms of the gentleman from Connecticut (Mr. DANA). But before we can determine upon the propriety or impropriety of the resolutions, to me it appears indispensable that we should examine attentively and minutely, not only the situation of this country in relation to France and Britain, but also the injuries and aggressions they have committed upon our neutral rights. In doing this I regret extremely that I shall wound the delicate taste and exquisite sensibility of my learned colleague (Mr. RANDOLPH), who addressed you yesterday. I shall take no pleasure in the retrospection which seems so much to disgust that gentleman; but I do not know how else to find justification for the measures we, I trust, shall pursue, and to expose the profligacy of our enemies. The regular discussion of the first resolution would seem naturally to lead us to a review of the edicts of Great Britain and France. When we say we will not submit to their edicts; it cannot be amiss, although I acknowledge, sir, the undertaking is an unpleasant one, to inquire into the nature and extent of those edicts; I therefore will endeavor, within as narrow limits as possible, to exhibit to the view of the indignant American, the various wanton aggressions which have been committed by both these powers upon his commercial rights. And, sir, whenever we look for the chief source of our difficulties, we must turn towards Great Britain. Then let us examine the principal items in her account. On 8th June, 1793, the British Government issued an Order of Council to stop and detain for condemnation, vessels laden with corn, flour, or meal, and bound to France, whose people were then almost in the act of starving, and of course we were deprived of an excellent market for those articles. On 6th November, 1793, an order issued to stop and detain ships laden with the produce of, or carrying provisions to, the colonies of France. On 21st March, 1799, she issued a proclamation declaring the United Provinces in a state of blockade, and thereby excluding neutral commerce without any actual investment. On 16th May, 1806, a proclamation declaring the blockade of the coast from the Elbe to Brest, inclusive. On 7th January, 1807, an order prohibiting neutral vessels from trading from one port to another of the enemy or his allies. On 11th May, 1807, a proclamation declaring the blockade of the coast between the Elbe, Weser, and Ems. On 11th May, 1807, a proclamation declaring the blockade of the Dardanelles and Smyrna. In October, 1807, a proclamation, ordering British officers to impress from American vessels all such of their crews as might be taken _or mistaken_ for British subjects. On 11th November, 1807, Orders in Council were issued interdicting all neutral commerce to any port of Europe from which the British flag was excluded; directing that neutrals should trade to such ports only, under British license and with British clearances--that all ships destined before the issuing of the orders to any of the said ports, should go into a British port, and that all vessels having "certificates of origin" should be lawful prize. On 11th November, 1807, an Order in Council was issued, declaring void the legal transfer of vessels from the enemies of Britain, to neutrals or others. In 1808, various acts of Parliament have been passed, carrying the orders of the 11th of November, 1807, into execution. They impose a specific tax on a variety of articles of American merchandise allowed to be re-exported to the continent of Europe, for example, on tobacco, 12_s._ 6_d._ sterling per cwt.; on indigo, 2_s._ per lb.; pork, 17_s._ 6_d._ per cwt.; cotton, 9_d._ per lb.; and on all other articles not enumerated in the act, a duty of forty per cent. is exacted on re-exportation. On 8th January, 1808, a proclamation issued declaring the blockade of Carthagena, Cadiz, and St. Lucar, and all the ports between the first and last of these places. In the Autumn of 1808, in order that plunder might commence from the very moment of the expected repeal of the embargo, the French West India islands were declared in a state of blockade. I will forbear, sir, at this time from commenting on the habitual impressment of American citizens, by Great Britain; the illegal condemnation of American vessels under what they call the rule of 1756; the spurious blockades of British commanders, and the consequent spoliations on our commerce. Nor will I detain the House by relating the story of Captain Bradley, commander of the Cambrian, who in the face of the city of New York, and in contempt of the civil authority of the United States, dragged your citizens into slavish captivity. The case too of the British ship Leander may remain untold--the enormity of that transaction is written in indelible characters, with the blood of our countrymen. The invitation of the British Ministry to your merchants to violate the embargo, and the burning of a friendly ship of war (the Impetueux) in your own waters, are circumstances too light to be noticed. I feel no disposition, either, to portray the affair of the Chesapeake. The ghosts of the murdered are yet unavenged for that horrid and perfidious deed! I will now advert, sir, to the principal injuries committed by France on the neutral commerce of the United States. They consist in the execution of three decrees, to wit: The Berlin decree of the 21st November, 1806, declaring the British islands in a state of blockade, and that no vessel having been at or coming directly from England or her colonies, shall enter at a French port. The Milan decree of the 17th December, 1807, declaring lawful prize every vessel that has suffered the visit of an English vessel, submitted to an English voyage, or paid duty to the English Government; and also, every vessel coming from the ports of England and her colonies. The Bayonne decree of April, 1808, which subjects, as it is said, and I believe not doubted, all American vessels found upon the high seas since the embargo, to capture and confiscation. Here, Mr. Speaker, I will end the black catalogue of iniquitous outrages and restrictions upon neutral commerce--restrictions which are acknowledged to depend for their support upon no other ground than that of retaliation. Whilst I protest against the principle of retaliating upon an enemy through the medium of a friend, yet these orders and decrees have no claim even to that principle. Because France and Britain both agree that the right of retaliation does not accrue before the neutral has acquiesced in the aggressions of the enemy. We have never acquiesced in the aggressions of either, and therefore, upon their own reasoning, ought not to be liable to the operation of the principle for which they unjustly contend. But, sir, can we quit this subject without looking more particularly at the consequences which result from this series of injuries? In reviewing the conduct of Great Britain towards this country, we perceive a continuation of encroachments, designed only for the utter destruction of our commerce. This disposition is manifest in every order and proclamation she has issued since the year 1793. If this were not her object, why such a continued system of illegitimate blockades? Why so many vexatious restrictions upon neutral trade, tending to destroy competition on our part in the continental markets? I might trace the scheme a little further back, and ask, whence the outrages? the orders of June and November, 1793, which produced Jay's treaty? A treaty which I am sorry to say, did not guarantee to us mutual and reciprocal rights, and which was no sooner ratified than violated by British perfidy. But, sir, I will not speak of trivial matters, like these; they are of no consequence when we reflect upon other topics. The pretended blockade of almost every port upon the Baltic; the blockade of the eastern and southern coasts of the North Sea, unaccompanied by any naval force; the nominal investment of the ports on the south of the British channel, and on the European coast of the Mediterranean sea; the occlusion of the Black Sea, by the blockade of the Dardanelles and Smyrna, and in fine the blockade of all the places from the Straits of Gibraltar to the Arctic Ocean, are acts which, notwithstanding their unexampled enormity in themselves, sink into perfect insignificance, when we consider the base attempts meditated by the orders of November, 1807, and the consequent statutes of Parliament, to reduce this country again to a state of colonial slavery! Sir, at the very thought of these infamous orders and acts of the British Government, I feel emotions of indignation and contempt, to repress which would be dishonorable. What, sir? American vessels to be arrested in a lawful commerce, upon "the highway of nations;" to be forcibly carried into British ports, and there either condemned, or else compelled before they can prosecute their voyage to take British clearances and pay a British tax! And if the owner of the cargo shall be unable to pay the amount of tax, he has the consolation left him of seeing his property burnt! Sooner would I see every vessel and every atom of our surplus produce make one general conflagration in our own country. For what purpose was the Revolution, in which the blood and treasure of our ancestors were the price of independence, if we are now to be taxed by Britain? The highest authority in the Union cannot constitutionally tax the exports, which are in part the products of the labor of the American people; yet the British Government has presumptuously undertaken to do it. I, sir, for one must protest against any thing like submission to this conduct. But let us see what we should get by submission. So far from gaining, it will be easy to demonstrate, that if we were to submit, we should be only remunerated with disgrace and ruin. WEDNESDAY, December 7. Mr. SAY presented memorials from sundry late officers in the Pennsylvania line of the Revolutionary army, stating that, from the peculiar circumstances of the memorialists, they have been compelled to dispose of the certificates of pay and commutation granted them for military services rendered to the United States; and praying such relief in the premises as to the wisdom and justice of Congress shall seem meet. Mr. WHARTON presented a petition from sundry late officers of the Massachusetts, Pennsylvania, Maryland, Virginia, and North Carolina lines of the said Revolutionary arm, to the like effect. The said memorials and petition were read, and ordered to lie on the table. Mr. DURELL moved that the House do come to the following resolution: _Resolved_, That it be the duty of the Clerk of this House to furnish the Representatives in Congress from each State in the Union, for the time being, and the Delegates from each of the Territories thereof, with one copy of every public document, including the laws and journals printed by order of the House, to be by them transmitted to the principal seminary of learning in each State and Territory, respectively. The resolution was read, and, on motion of Mr. BACON, ordered to lie on the table. _Foreign Relations._ The House then resumed the consideration of the first member of the first resolution reported on Thursday last, from the Committee of the Whole, which was depending yesterday at the time of adjournment, in the words following, to wit: "_Resolved_, That the United States cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of Great Britain." Mr. G. W. CAMPBELL concluded his observations of yesterday, as given entire in preceding pages. Mr. QUINCY.--Mr. Speaker, I offer myself to the view of this House with a very sensible embarrassment, in attempting to follow the honorable gentleman from Tennessee (Mr. CAMPBELL)--a gentleman who holds so distinguished a station on this floor, through thy blessing, Mr. Speaker, on his talents and industry. I place myself with much reluctance in competition with this, our great political �neas, an illustrious leader of antiquity, whom, in his present relations, and in his present objects, the gentleman from Tennessee not a little resembles; since, in order to evade the ruin impending over our cities--taking my honorable colleague (Mr. BACON) by one hand, and the honorable gentleman from Maryland (Mr. MONTGOMERY) by the other (little Iülus and wife Creusa)--he is posting away into the woods with Father Anchises and all the household gods. When I had the honor of addressing this House a few days ago, I touched this famous report of our Committee of Foreign Relations perhaps a little too carelessly; perhaps I handled it a little too roughly, considering its tender age, and the manifest delicacy of its constitution. But, sir, I had no idea of affecting very exquisitely the sensibilities of any gentleman. I thought that this was a common report of one of our ordinary committees, which I had a right to canvass or to slight, to applaud or to censure, without raising any extraordinary concern, either here or elsewhere. But, from the general excitement which my inconsiderate treatment of this subject occasions, I fear that I have been mistaken. This can be no mortal fabric, Mr. Speaker. This must be that image which fell down from Jupiter, present or future. Surely, nothing but a being of celestial origin would raise such a tumult in minds tempered like those which lead the destinies of this House. Sir, I thought that this report had been a common piece of wood--_inutile lignum_--just such a piece of wood as any day-laborer might have hewed out in an hour, had he health and a hatchet. But it seems that our honorable chairman of the Committee of Foreign Relations, _maluit esse Deum_. Well, sir, I have no objections. If the workmen will, a god it shall be. I only wish, that when gentlemen bring their sacred things upon this floor, that they would blow a trumpet before them, as the heathens do, on such occasions, to the end that all true believers may prepare themselves to adore and tremble, and that all unbelievers may turn aside, and not disturb their devotions. I assure gentlemen that I meant to commit no sacrilege. I had no intention, sir, of canvassing very strictly this report. I supposed, that when it had been published and circulated, it had answered all the purposes of its authors, and I felt no disposition to interfere with them. But the House is my witness that I am compelled, by the clamor raised on all sides by the friends of the Administration, to descend to particulars, and to examine it somewhat minutely. My honorable colleague (Mr. BACON) was pleased the other day to assert:----Sir, in referring to his observations, on a former occasion, I beg the House not to imagine that I am about to follow him. No, sir; I will neither follow nor imitate him. I hang upon no man's skirts; I run barking at no man's heel. I canvass principles and measures solely with a view to the great interests of my country. The idea of personal victory is lost in the total absorption of sense and mind in the impending consequences. I say he was pleased to assert that I had dealt in general allegations against this report, without pointing out any particular objection. And the honorable chairman (Mr. CAMPBELL) has reiterated the charge. Both have treated this alleged omission with no little asperity. Yet, sir, it is very remarkable, that, so far from dealing in general allegations, I explicitly stated my objections. The alternatives presented by the report--war or suspension of our rights, and the recommendation of the latter, rather than take the risk of the former, I expressly censured. I went further. I compared these alternatives with an extract from an address made by the first Continental Congress to the inhabitants of Great Britain, and attempted to show, by way of contrast, what I thought the disgraceful spirit of the report. Yet, these gentlemen complain that I dealt in general allegations. Before I close, sir, they will have, I hope, no reason to repeat such objections. I trust I shall be particular, to their content. Before entering upon an examination of this report, it may be useful to recollect how it originated. By the third section of the second article of the constitution, it is declared that the President of the United States "shall, from time to time, give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." It is, then, the duty of the President to recommend such measures as in his judgment Congress ought to adopt. A great crisis is impending over our country. It is a time of alarm, and peril, and distress. How has the President performed this constitutional duty? Why, after recapitulating, in a formal Message, our dangers and his trials, he expresses his confidence that we shall, "with an unerring regard to the essential rights and interests of the nation, weigh and compare the painful alternatives out of which a choice is to be made," and that "the alternative chosen will be maintained with fortitude and patriotism." In this way our Chief Magistrate performs his duty. A storm is approaching; the captain calls his choice hands upon deck; leaves the rudder swinging, and sets the crew to scuffle about _alternatives_! This Message, pregnant with nondescript alternatives, is received by this House. And what do we? Why, constitute a great Committee of Foreign Relations, and, lest they should not have their attention completely occupied by the pressing exigencies of those with France and Great Britain, they are endowed with the whole mass--British, Spanish, and French; Barbary Powers and Indian neighbors. And what does this committee do? Why, after seven days' solemn conclave, they present to this House an illustrious report, loaded with alternatives--nothing but alternatives. The cold meat of the palace is hashed and served up to us, piping hot, from our committee room. In considering this report, I shall pay no attention to either its beginning or its conclusion. The former consists of shavings from old documents, and the latter of birdlime for new converts. The twelfth page is the heart of this report; that I mean to canvass. And I do assert, that there is not one of all the principal positions contained in it which is true, in the sense and to the extent assumed by the committee. Let us examine each, separately: "Your committee can perceive no other alternative but abject and degrading submission, war with both nations, or a continuance and enforcement of the present suspension of our commerce." Here is a tri-forked alternative. Let us consider each branch, and see if either be true, in the sense assumed by the committee. The first--"abject and degrading submission"--takes two things for granted: that trading, pending the edicts of France and Great Britain, is submission; and next that it is submission, in its nature, abject and degrading. Neither is true. It is not submission to trade, pending those edicts, because they do not command you to trade; they command you _not_ to trade. When you refuse to trade, you submit; not when you carry on that trade, as far as you can, which they prohibit. Again, it is not true that such trading is abject and disgraceful, and that, too, upon the principles avowed by the advocates of this report. Trading, while these edicts are suspended over our commerce, is submission, say they, because we have not physical force to resist the power of these belligerents; of course, if we trade, we must submit to these restrictions, not having power to evade or break through them. Now, admit, for the sake of argument, (what however in fact I deny,) that the belligerents have the power to carry into effect their decrees so perfectly; that, by reason of the orders of Great Britain, we are physically disabled from going to France; and that, by the edicts of France, we are in like manner disabled from going to Great Britain. If such be our case, in relation to these powers, the question is, whether submitting to exercise all the trade which remains to us, notwithstanding these edicts, is "abject and degrading." In the first place, I observe, that submission is not, to beings constituted as we are, always "abject and degrading." We submit to the decrees of Providence--to the laws of our nature. Absolute weakness submits to absolute power; and there is nothing in such submission shameful or degrading. It is no dishonor for finite not to contend with infinite. There is no loss of reputation if creatures, such as men, perform not impossibilities. If then it be true, in the sense asserted by some of the advocates of this report, that it is physically impossible for us to trade with France and Great Britain and their dependencies, by reason of these edicts, still there is nothing "abject or degrading" in carrying on such trade as these edicts leave open to us, let it be never so small or so trifling; which, however, it might be easily shown, as it has been, that it is neither the one nor the other. Sir, in this point of view, it is no more disgraceful for us to trade to Sweden, to China, to the Northwest coast, or to Spain and her dependencies--not one of which countries is now included in those edicts--than it is disgraceful for us to walk, because we are unable to fly; no more than it is shameful for man to use and enjoy the surface of this globe, because he has not at his command the whole circle of nature, and cannot range at will over all the glorious spheres which constitute the universe. The gentleman from Tennessee (Mr. CAMPBELL) called upon us just now to tell him what was disgraceful submission, if carrying on commerce under these restrictions was not such submission. I will tell that gentleman. That submission is "abject and disgraceful" which yields to the decrees of frail and feeble power, as though they were irresistible; which takes counsel of fear, and weighs not our comparative force; which abandons the whole, at a summons to deliver up a part; which makes the will of others the measure of rights, which God and nature not only have constituted eternal and unalienable, but have also endued us with ample means to maintain. My argument on this clause of the report of the committee may be presented in this form: either the United States have or they have not physical ability to carry on commerce in defiance of the edicts of both or of either of these nations. If we have not physical ability to carry on the trade which they prohibit, then it is no disgrace to exercise that commerce which these irresistible decrees permit. If we have such physical ability, then, to the degree in which we abandon that commerce which we have power to carry on, is our submission "abject and disgraceful." It is yielding without a struggle; it is sacrificing our rights, not because we have not force, but because we have not spirit to maintain them. It is in this point of view that I am disgusted with this report. It abjures what it recommends; it declaims, in heroics, against submission, and proposes, in creeping prose, a tame and servile subserviency. It cannot be concealed, let gentlemen try as much as they will, that we can trade, not only with one, but with both these belligerents, notwithstanding these restrictive decrees. The risk to Great Britain against French capture scarcely amounts to two per cent.; that to France against Great Britain is unquestionably much greater. But, what is that to us? It is not our fault, if the power of Britain on the ocean is superior to that of Bonaparte. It is equal and exact justice between both nations for us to trade with both, as far as it is in our power. Great as the power of Britain is on the ocean, the enterprise and intrepidity of our merchants are more than a match for it. They will get your products to the Continent in spite of her navy. But suppose they do not; suppose they fail, and are captured in the attempt; what is that to us? After we have given them full notice of all their dangers, and perfect warning, either of our inability or of our determination not to protect them, if they take the risk, it is at their peril. And, upon whom does the loss fall? As it does now, through the operation of your embargo, on the planter, on the farmer, on the mechanic, on the day-laborer? No, sir; on the insurer--on the capitalist--on those who in the full exercise of their intelligence, apprised of all the circumstances, are willing to take the hazard for the sake of the profit. I will illustrate my general idea by a supposition. There are two avenues to the ocean from the harbor of New York--by the Narrows, and through Long Island Sound. Suppose the fleets, both of France and Great Britain, should block up the Narrows, so that to pass them would be physically impossible, in the relative state of our naval force. Will gentlemen seriously contend that there would be any thing "abject or disgraceful," if the people of New York should submit to carry on their trade through the Sound? Would the remedy for this interference with our rights be abandoning the ocean altogether? Again: suppose, that instead of both nations blockading the same point, each should station its force at a different one--France at the mouth of the Sound, Britain at the Narrows. In such case, would staying at home, and refusing any more to go upon the sea, be an exercise of independence in the citizens of New York? Great philosophers may call it "dignified retirement," if they will. I call it, and I am mistaken if the people would not call it, "base and abject submission." Sir, what in such a case would be true honor? Why, to consider well which adversary is the weakest, and cut our way to our rights through the path which he obstructs. Having removed the smaller impediment, we should return with courage, strengthened by trial and animated by success, to the relief of our rights, from the pressure of the strongest assailant. But, all this is war; and war is never to be incurred. If this be the national principle, avow it; tell your merchants you will not protect them; but, for Heaven's sake, do not deny them the power of relieving their own and the nation's burdens, by the exercise of their own ingenuity. Sir, impassable as the barriers offered by these edicts are in the estimation of members on this floor, the merchants abroad do not estimate them as insurmountable. Their anxiety to risk their property, in defiance of them, is full evidence of this. The great danger to mercantile ingenuity is internal envy--the corrosion of weakness or prejudice. Its external hazard is ever infinitely smaller. That practical intelligence which this class of men possesses, beyond any other in the community, excited by self-interest--the strongest of human passions--is too elastic to be confined by the limits of exterior human powers, however great or uncommon. Build a Chinese wall, and the wit of your merchants, if permitted freely to operate, will break through it or overleap it, or undercreep it. ------------"mille adde catenas Effugiet tamen, hæc sceleratus vincula Proteus." The second branch of the alternatives under consideration is equally deceptive--"War with both nations." Can this ever be an alternative? Did you ever read in history, can you conceive in fancy, a war of two nations, each of whom is at war with the other, without a union with one against the other immediately resulting? It cannot exist in nature. The very idea is absurd. It never can be an alternative, whether we shall find two nations each hostile to the other. But it may be, and if we are to fight at all, it is a very serious question, which of the two we are to select as an adversary. As to the third branch of these celebrated alternatives, "a continuance and enforcement of the present system of commerce," I need not spend time to show that this does not include all the alternatives which exist under this head--since the committee immediately admit, that there does exist another alternative, "partial repeal," about which they proceed to reason. The report proceeds. "The first" (abject and degrading submission) "cannot require any discussion." Certainly not. Submission of that quality which the committee assume, and with the epithets of which they choose to invest it, can never require discussion at any time. But, whether trading under these orders and decrees be such submission, whether we are not competent to resist them in part, if not in whole, without a total abandonment of the exercise of all our maritime rights, the comparative effects of the edicts of each upon our commerce and the means we possess to influence or control either, are all fair and proper subjects of discussion; some of which the committee have wholly neglected and none of which have they examined, as the House had a right to expect. The committee proceed "to dissipate the illusion" that there is any "middle course," and to reassert the position before examined, that "there is no other alternative than war with both nations, or a continuance of the present system." This position they undertake to support by two assertions. First, that "war with one of the belligerents only, would be submission to the edicts and will of the other." Second, that "repeal in whole or in part of the embargo, must necessarily be war or submission." As to the first assertion, it is a miserable fallacy, confounding coincidence of interest with subjection of will; things in their nature palpably distinct. A man may do what another wills, nay, what he commands, and not act in submission to his will, or in obedience to his command. Our interest or duty may coincide with the line of conduct another presumes to prescribe. Shall we vindicate our independence at the expense of our social or moral obligations? I exemplify my idea in this way. Two bullies beset your door, from which there are but two avenues. One of them forbids you to go by the left, the other forbids you to go by the right avenue. Each is willing that you should pass by the way which he permits. In such case, what will you do? Will you keep house forever, rather than make choice of the path through which you will resume your external rights? You cannot go both ways at once, you must make your election. Yet, in making such election, you must necessarily coincide with the wishes and act according to the commands of one of the bullies. Yet who, before this committee, ever thought an election of one of two inevitable courses, made under such circumstances, "abject and degrading submission" to the will of either of the assailants? The second assertion, that "repeal in whole or in part of the embargo must necessarily be war or submission," the committee proceed to maintain by several subsidiary assertions. First--"a general repeal without arming would be submission to both nations." So far from this being true, the reverse is the fact; it would be submission to neither. Great Britain does not say, "you shall trade with me." France does not say, "you shall trade with me." If this was the language of their edicts, there might be some color for the assertion of the committee, that if we trade with either we submit. The edicts of each declare you shall not trade with my adversary. Our servile knee-crooking embargo says, "you shall, therefore, not trade." Can any submission be more palpable, more "abject, more disgraceful?" A general repeal without arming, would be only an exercise of our natural rights, under the protection of our mercantile ingenuity, and not under that of physical power. Whether our merchants shall arm or not, is a question of political expediency and of relative force. It may be very true that we can fight our way to neither country, and yet it may be also very true, that we may carry on a very important commerce with both. The strength of the national arm may not be equal to contend with either, and yet the wit of our merchants may be over-match for the edicts of all. The question of arming or not arming, has reference only to the mode in which we shall best enjoy our rights, and not at all to the quality of the act of trading during these edicts. To exercise commerce is our absolute right. If we arm, we may possibly extend the field beyond that which mere ingenuity would open to us. Whether the extension thus acquired be worthy of the risk and expense, is a fair question. But, decide it either way, how is trading as far as we have ability, made less abject than not trading at all? I come to the second subsidiary assertion. "A general repeal and arming of merchant vessels, would be war with both, and war of the worst kind, suffering the enemies to plunder us, without retaliation upon them." I have before exposed the absurdity of a war with two belligerents, each hostile to the other. It cannot be true, therefore, that "a general repeal and arming our merchant vessels," would be such a war. Neither if war resulted, would it be "war of the worst kind." In my humble apprehension, a war, in which our enemies are permitted to plunder us, and our merchants not permitted to defend their property, is somewhat worse than a war like this; in which, with arms in their hands, our brave seamen might sometimes prove too strong for their piratical assailants. By the whole amount of property which we might be able to preserve by these means, would such a war be better than that in which we are now engaged. For the committee assure us, that the aggressions to which we are subject, "are to all intents and purposes a maritime war, waged with both nations against the United States." The last assertion of the committee, in this most masterly page is, that "a partial repeal must from the situation of Europe, necessarily be actual submission to one of the aggressors, and war with the other." In the name of common sense, how can this be true? The trade to Sweden, to Spain, to China, is not now affected by the orders or decrees of either belligerent. How is it submission, then, to these orders for us to trade to Gottenburg, when neither France nor Britain command, nor prohibit it? Of what consequence is it to us what way the Gottenburg merchant disposes of our products, after he has paid us our price? I am not about to deny that a trade to Gottenburg would defeat the purpose of coercing Great Britain, through the want of our supplies, but I reason on the report upon its avowed principles. If gentlemen adhere to their system, as a means of coercion, let the Administration avow it as such, and support the system, by arguments, such as their friends use every day on this floor. Let them avow, as those friends do, that this is our mode of hostility against Great Britain. That it is better than "ball and gunpowder." Let them show that the means are adequate to the end; let them exhibit to us, beyond the term of all this suffering, a happy salvation, and a glorious victory, and the people may then submit to it, even without murmur. But while the Administration support their system only as a municipal regulation, as a means of safety and preservation, those who canvass their principle are not called upon to contest with them on ground, which not only they do not take, but which, officially, they disavow. As partial repeal would not be submission to either, so, also, it would not be war with either. A trade to Sweden would not be war with Great Britain; that nation is her ally, and she permits it. Nor with France, though Sweden is her enemy, she does not prohibit it. Ah! but say the committee, "a measure which would supply exclusively one of the belligerents, would be war with the other." This is the State secret; this is the master-key to the whole policy. You must not only do what the letter of these orders prohibits, but you must not sin against the spirit of them. The great purpose is, to prevent your product from getting to our enemy, and to effect this you must not only so act as to obey the terms of the decrees, but keeping the great purpose of them always in sight, you must extend their construction to cases which they cannot, by any rule of reason, be made to include. Sir, I have done with this report. I would not have submitted to the task of canvassing it, if gentlemen had not thrown the gauntlet with the air of sturdy defiance. I willingly leave to this House and the nation to decide whether the position I took in the commencement of my argument is not maintained; that there is not one of the principal positions contained in the 12th page, the heart of this report, which is true, in the sense and to the extent assumed by the committee. It was under these general impressions that I used the word "loathsome," which has so often been repeated. Sir, it may not have been a well chosen word. It was that which happened to come to hand first. I meant to express my disgust at what appeared to me a mass of bold assumptions, and of illy-cemented sophisms. I said, also, that "the spirit which it breathed was disgraceful" Sir, I meant no reflection upon the committee. Honest men and wise men may mistake the character of the spirit which they recommend, or by which they are actuated. When called upon to reason concerning that which, by adoption, is to become identified with the national character, I am bound to speak of it as it appears to my vision. I may be mistaken. Yet, I ask the question: is not the spirit which it breathes disgraceful? Is it not disgraceful to abandon the exercise of all our commercial rights, because our rivals interfere with a part; not only to refrain from exercising that trade which they prohibit, but for fear of giving offence, to decline that which they permit? Is it not disgraceful, after inflammatory recapitulation of insults, and plunderings, and burnings, and confiscations, and murders, and actual war made upon us, to talk of nothing but alternatives, of general declarations, of still longer suspension of our rights, and retreating farther out of "harm's way?" If this course be adopted by my country, I hope I am in error concerning its real character. But to my sense, this whole report is nothing else than a recommendation to us of the abandonment of our essential rights and apologies for doing it. Before I sit down, I feel myself compelled to notice some observations which have been made in different quarters of this House on the remarks which, at an early stage of this debate, I had the honor of submitting to its consideration. My honorable colleague (Mr. BACON) was pleased to represent me as appealing to the people over the heads of the whole Government, against the authority of a law which had not only the sanction of all the legislative branches of the Government, but also of the Judiciary. Sir, I made no such appeal. I did not so much as threaten it. I admitted, expressly, the binding authority of the law. But I claim a right, which I ever will claim, and ever will exercise, to urge, on this floor, my opinion of the unconstitutionality of a law, and my reasons for that opinion, as a valid ground for its repeal. Sir, I will not only do this, I will do more. If a law be, in my apprehension, dangerous in its principles, ruinous in its consequences, above all if it be unconstitutional, I will not fail in every fair and honorable way to awaken the people to a sense of their peril; and to quicken them, by the exercise of their constitutional privileges, to vindicate themselves and their posterity from ruin. My honorable colleague (Mr. BACON) was also pleased to refer to me, "as a man of divisions and distinctions, waging war with adverbs, and dealing in figures." Sir, I am sorry that my honorable colleague should stoop "from his pride of place," at such humble game as my poor style presents to him. Certainly, Mr. Speaker, I cannot but confess that, "deeming high" of the station which I hold; standing, as it were, in the awful presence of an assembled people, I am more than ordinarily anxious, on all occasions, to select the best thoughts in my narrow storehouse, and to adapt to them the most appropriate dress in my intellectual wardrobe. I know not whether, on this account, I am justly obnoxious to the asperity of my honorable colleague. But, on the subject of figures, sir, this I know, and cannot refrain from assuring this House that, as on the one hand, I shall, to the extent of my humble talents, always be ambitious, and never cease striving to make a decent figure on this floor; so, on the other, I never can be ambitious, but, on the contrary, shall ever strive chiefly to avoid cutting a figure like my honorable colleague. The gentleman from Georgia, (Mr. TROUP,) the other day, told this House that, if commerce were permitted, such was the state of our foreign relations, none but bankrupts would carry on trade. Sir, the honorable gentleman has not attained correct information in this particular. I do not believe that I state any thing above the real fact, when I say that, on the day this Legislature assembled, one hundred vessels, at least, were lying in the different ports and harbors of New England loaded, riding at single anchor, ready and anxious for nothing so much as for your leave to depart. Certainly, this does not look much like any doubt that a field of advantageous commerce would open, if you would unbar the door to your citizens. That this was the case in Massachusetts I know. Before I left that part of the country, I had several applications from men, who stated that they had property in such situations, and soliciting me to give them the earliest information of your probable policy. The men so applying, I can assure the House, were no bankrupts; but intelligent merchants, shrewd to perceive their true interests; keen to pursue them. The same honorable gentleman was also pleased to speak of "a paltry trade in potash and codfish," and to refer to me as the Representative of men who raised "beef and pork, and butter and cheese, and potatoes and cabbages." Well, sir, I confess the fact. I am the Representative, in part, of men, the products of whose industry are beef and pork, and butter and cheese, and potatoes and cabbages. And let me tell that honorable gentleman, that I would not yield the honor of representing such men, to be the Representative of all the growers of cotton and rice, and tobacco and indigo, in the whole world. Sir, the men whom I represent, not only raise those humble articles, but they do it with the labor of their own hands, with the sweat of their own brows. And by this, their habitual mode of hardy industry, they acquire a vigor of nerve, a strength of muscle, and spirit of intelligence, somewhat characteristic. And let me say to that honorable gentleman, that the men of whom I speak will not, at his call, nor at the invitation of any man or set of men from his quarter of the Union, undertake to "drive one another into the ocean." But, on the contrary, whenever they once realize that their rights are invaded, they will unite, like a band of brothers, and drive their enemies there. The honorable gentleman from Kentucky, (Mr. JOHNSON,) speaking of the embargo, said, that this was the kind of conflict which our fathers waged; and my honorable colleague (Mr. BACON) made a poor attempt to confound this policy with the non-intercourse and non-importation agreement of 1774 and 1775. Sir, nothing can be more dissimilar. The non-intercourse and non-importation agreement of that period, so far from destroying commerce, fostered and encouraged it. The trade with Great Britain was indeed voluntarily obstructed, but the enterprise of our merchants found a new incentive in the commerce with all the other nations of the globe, which succeeded immediately on our escape from the monopoly of the mother country. Our navigation was never suspended. The field of commerce at that period, so far from being blasted by pestiferous regulations, was extended by the effect of the restrictions adopted. But let us grant all that they assert. Admit, for the sake of argument, that the embargo, which restrains us now from communication with all the world, is precisely synonymous with that non-intercourse and non-importation which restrained us then from Great Britain. Suppose the war, which we now wage with that nation, is in every respect the same as that which our fathers waged with her in 1774 and 1775. Have we from the effects of their trial any lively hope of success in our present attempt? Did our fathers either effect a change in her injurious policy or prevent a war by non-intercourse? Sir, they did neither the one nor the other. Her policy was never changed until she had been beaten on our soil, in an eight years' war. Our fathers never relied upon non-intercourse and non-importation, as measures of hostile coercion. They placed their dependence upon them solely as means of pacific influence among the people of that nation. The relation in which this country stood at that time with regard to Great Britain, gave a weight and a potency to those measures then, which in our present relation to her, we can neither hope nor imagine possible. At that time we were her Colonies, a part of her family. Our prosperity was essentially hers. So it was avowed in this country. So it was admitted in Great Britain. Every refusal of intercourse which had a tendency to show the importance of these then colonies to the parent country, of the part to the whole, was a natural and a wise means of giving weight to our remonstrances. We pretended not to control, but to influence, by making her feel our importance. In this attempt we excited no national pride on the other side of the Atlantic. Our success was no national degradation, for the more we developed our resources and relative weight, the more we discovered the strength and resources of the British power. We were the component parts of it. All the measures of the Colonies, antecedent to the Declaration of Independence, had this principle for their basis. As such, non-importation and non-intercourse were adopted in this country. As such, they met the co-operation of the patriots of Great Britain, who deemed themselves deviating from none of their national duties, when they avowed themselves the allies of American patriots, to drive, through the influence of the loss of our trade, the ministry from their places, or their measures. Those patriots did co-operate with our fathers, and that openly, in exciting discontent, under the effect of our non-intercourse agreements. In so doing, they failed in none of their obligations to their sovereign. In no nation can it ever be a failure of duty to maintain that the safety of the whole depends on preserving its due weight to every part. Yet, notwithstanding the natural and little suspicious use of these instruments of influence, notwithstanding the zeal of the American people coincided with the views of Congress, and a mighty party existed in Great Britain openly leagued, with our fathers, to give weight and effect to their measures, they did not effect the purposes for which they were put into operation. The British policy was not abandoned. War was not prevented. How then can any encouragement be drawn from that precedent, to support us under the privations of the present system of commercial suspension? Can any nation admit that the trade of another is so important to her welfare, as that on its being withdrawn, any obnoxious policy must be abandoned, without at the same time admitting that she is no longer independent? Sir, I could indeed wish that it were in our power to regulate not only Great Britain, but the whole world, by opening or closing our ports. It would be a glorious thing for our country to possess such a mighty weapon of defence. But, acting in a public capacity, with the high responsibilities resulting from the great interests dependant upon my decision, I cannot yield to the wishes of lovesick patriots, or the visions of teeming enthusiasts; I must see the adequacy of means to their ends. I must see, not merely that it is very desirable that Great Britain should be brought to our feet, by this embargo, but that there is some likelihood of such a consequence to the measure, before I can concur in that universal distress and ruin which, if much longer continued, will inevitably result from it. Since, then, every dictate of sense and reflection convinces me of the utter futility of this system, as a means of coercion, on Great Britain, I shall not hesitate to urge its abandonment. No, sir, not even although, like others, I should be assailed by all the terrors of the outcry of British influence. Really, Mr. Speaker, I know not how to express the shame and disgust with which I am filled, when I hear language of this kind cast out upon this floor, and thrown in the faces of men, standing justly on no mean height in the confidence of their countrymen. Sir, I did, indeed, know that such vulgar aspersions were circulating among the lower passions of our nature. I knew that such vile substances were ever tempering between the paws of some printer's devil. I knew that foul exhalations like these daily rose in our cities, and crept along the ground, just as high as the spirits of lampblack and saline oil could elevate; falling, soon, by native baseness, into oblivion, in the jakes. I knew, too, that this species of party insinuation was a mighty engine, in this quarter of the country, on an election day, played off from the top of a stump, or the top of a hogshead, while the gin circulated, while barbecue was roasting; in those happy, fraternal associations and consociations, when those who speak, utter without responsibility, and those who listen, hear without scrutiny. But little did I think, that such odious shapes would dare to obtrude themselves, on this national floor, among honorable men;--the select representatives, the confidential agents of a wise, a thoughtful and a virtuous people. I want language to express my contempt and indignation at the sight. So far as respects the attempt which has been made to cast such aspersions on that part of the country which I have the honor to represent, I beg this honorable House to understand, that so long as they, who circulate such insinuations, deal only in generals and touch not particulars, they may gain among the ignorant and the stupid a vacant and a staring audience. But when once these suggestions are brought to bear upon those individuals who in New England have naturally the confidence of their countrymen, there is no power in these calumnies. The men who now lead the influences of that country, and in whose councils the people on the day when the tempest shall come will seek refuge, are men whose stake is in the soil, whose interests are identified with those of the mass of their brethren, whose private lives and public sacrifices present a never-failing antidote to the poison of malicious invectives. On such men, sir, party spirit may indeed cast its odious filth, but there is a polish in their virtues to which no such slime can adhere. They are owners of the soil; real yeomanry; many of them men who led in the councils of our country in the dark day which preceded the national independence; many of them men who, like my honorable friend from Connecticut on my left, (Mr. TALLMADGE,) stood foremost on the perilous edge of battle; making their breasts in the day of danger a bulwark for their country. True it is, Mr. Speaker, there is another and a much more numerous class, composed of such as through defect of age can claim no share in the glories of our Revolution; such as have not yet been blest with the happy opportunity of "playing the man" for their country; generous sons of illustrious sires; men, not to be deterred from fulfilling the high obligations they owe to this people by the sight of foul and offensive weapons. Men who, with little experience of their own to boast, will fly to the tombs of their fathers, and questioning, concerning their duties, the spirit which hovers there, will no more shrink from maintaining their native rights, through fear of the sharpness of malevolent tongues, than they will, if put to the trial, shrink from defending them through fear of the sharpness of their enemies' swords. When Mr. QUINCY had concluded, the House adjourned without taking a question. THURSDAY, December 8. On motion of Mr. NEWTON, that the unfinished business of yesterday, depending at the time of adjournment, do lie on the table; and that the House do now resolve itself into a Committee of the Whole on the amendatory bill authorizing the President to employ an additional number of revenue cutters: and the question being taken thereupon, it was resolved in the affirmative. The House accordingly resolved itself into the said committee; and, after some time spent therein, the bill was reported without amendment, and ordered to be engrossed, and read the third time to-day. _Foreign Relations._ The House then resumed the consideration of the first member of the first resolution reported on Thursday last from the Committee of the Whole, which was depending yesterday at the time of adjournment, in the words following, to wit: "_Resolved_, That the United States cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of Great Britain." Mr. KEY said that it was with much regret that he had seen the course which the debate on the first resolution had taken; as the propositions contained in that resolution met his entire and full approbation, he could have wished that instead of the discussion which had taken place, a silent, dignified vote, the spontaneous effect of feeling and judgment, had at once passed. It would have been a better course, would have had a better effect, and kept the American mind from the impression which the protraction of the discussion must have occasioned, when taken in connection with the subject. A view however of the embargo had been gone into in respect to its past effects at home, and its probable future effects at home and abroad. As that course had been adopted, he said he should find an apology for the time which he should occupy, in the present eventful crisis, and the interest it universally excited. I did myself believe (said Mr. KEY) that the first resolution was an abstract proposition, and I still think so, although gentlemen consider it special; but surely a special proposition may be an abstract one. That which I consider an abstract proposition, is one out of which no future legislative proceedings can grow; but I agree that the crisis well warrants an expression of the public voice. I shall take up the report and resolutions as a system, not with a view to condemn the report at all, for I take it as gentlemen wish it to be considered. I understand the gentleman from Massachusetts (Mr. BACON) as stating that the committee on our foreign relations had said nothing of the embargo. It was not necessary, Mr. Speaker, that they should, for the embargo law continues in operation until repealed. But surely it must be recollected that the Committee on Foreign Relations in their resolutions seemed to consider the system which they recommend, as including a continuance of the embargo; and I trust I meet the committee on fair and firm ground, when I consider their assent to be implied to the continuance of the embargo, and that it is their opinion that the measures which they recommend, united with the embargo, form an efficient system proper for the American people to adopt at this time. I shall necessarily therefore endeavor to answer gentlemen who have considered the embargo as a wise measure for the American people; that they are competent to bear it; and that it will, if guarded more sedulously, yet work out the political salvation of our land. That the embargo is a measure severely felt by our country at large, and by some portions of it to a very eminent degree, cannot be denied. I did not expect to hear its effects contradicted; but they have been in some measure softened by the honorable chairman of the committee. I think the pressure of this measure great, and in some places requiring all the exertion of patriotism to support it. And as a proof of it, the members on this floor from different parts of the Union have only contended which section suffered most. A member from Massachusetts, (Mr. QUINCY,) because he conceives that thirty millions of dollars have been lost to the Eastern country by the measure, hence concludes that the Eastern country suffers most. The gentlemen from the Southern country say that they raise seventy millions of pounds of cotton, of which but ten millions are consumed at home, and the whole of the residue remains on hand; and that having seven-tenths of their produce unsold, conceive that they most sensibly feel the weight of this affliction in their country. A member from Virginia (Mr. RANDOLPH) will not yield the palm of oppression to either. "I live (said the gentleman) in the centre of the tobacco country, whether you draw the line from East to West, or from North to South. We are not less pressed than others, for we have no vent for this article so obnoxious in itself, but which the taste of mankind has rendered necessary." Now, with great deference to all these gentlemen, I say that my country suffers most. The Southern country possesses its staples, which but remain on hand; their value only diminished by the non-export. Tobacco and cotton may be preserved without material injury for a length of time. We know that at the close of the Revolutionary war tobacco bore a greater price than previous to its commencement, and amply remunerated the holders. But I represent an agricultural country. What can resuscitate wheat devoured by the fly? What restore flour soured in the barrel? Our produce perishes, the subject is destroyed. So far therefore as I represent an extensive and fertile farming district, I will not yield the palm of pressure to the cotton and tobacco country. So great has been the feeling of the people that it has wrought a wondrous change in the State which I have the honor to represent; not in men who are either deluded or deceived, as intimated by the gentleman from Tennessee, (Mr. CAMPBELL,) but men who, by the pressure of the embargo itself, have been driven to reflection, and by reflection removed the film from their eyes, and thereby seen their true interests more distinctly. In the course of the last Winter, the Legislature of the State of Maryland, believing that the Orders in Council justified the embargo, and that it was a wise measure, approved of it. Succeeding elections have taken place, and the present House of Representatives tells you that it is most ruinous and oppressive. Such certainly are its effects in the State of Maryland; and I should illy represent my own district, if I did not so declare. Gentlemen will say that I should rather be pleased with the change than regret it; but, so help me God, Mr. Speaker, I am much less anxious what description of citizens administers the affairs of the country, than that they should be well administered; that it should protect the liberty, give to labor its just reward, and promote the happiness and prosperity of the citizens. But it is alleged, by the honorable chairman of the committee, (Mr. CAMPBELL,) that this is a delusion; that the people do not comprehend the subject; for that it is the Orders in Council which have produced our embarrassments, and not the embargo. Here then, sir, I am precisely at issue with that learned and honorable gentleman. I contend that the pressure on the people is caused by the embargo, and not by the Orders in Council. However speculative theorists may reason, there is proof abroad, and stubborn facts to contradict their reasoning. Test the market from Boston to Savannah, as to the price which you may get at ninety days credit, the embargo being continued, or on condition that the embargo be repealed in thirty days. Is there no difference in the price under these circumstances? I know well from experience, and the whole country knows, that if the embargo be now taken off, the price of every species of produce will rise fifty per cent. The depreciation in price then flows from the embargo. Remove it and they will give you more; keep it on and they will give you less. These are stubborn facts, and every man who has gone to the market will attest their correctness. You may reason as you please; but there is not a farmer that can be reasoned out of his senses, especially when they are sharpened a little by necessity. I hold these facts to be more conclusive than any abstract reasoning to prove that the embargo does work a diminution in the value of the articles which we have for sale. If this be the case, it results, sir, that we must ascribe to the operation of that measure the loss our country now so greatly feels. Our citizens are not so uninformed as the gentleman from Tennessee imagines. He thinks, and I agree with him, that the public voice will be generally right when the people are well informed. They have seen all the official communications which have been published, and are competed to judge whether the Orders in Council justified the embargo, and whether, if the embargo had not been laid, they would have wrought that effect which we now so sensibly feel. Instead of being deluded, sir, their eyes are open, and the film removed; and they see that the embargo was not justified by necessity, and as far as their opinion has been expressed, that it was impolitic and unwise. The gentleman seems to think that the country cannot feel much because it feeds well; but we may feel and feed at the same time. It is plenty that we complain of. Our surplus is touched by this torpedo, the embargo, and is thereby rendered useless. But gentlemen say that if the embargo were now taken off, we could not trade; and a calculation has been entered into by the gentleman from Tennessee in opposition to one made by me at the last session. I have not seen my calculation for months, sir; it is before the public--the gentleman's statement will go to the same tribunal, and I am willing to commit my slender reputation to the country for the accuracy of mine, and let the people judge between us. The gentleman tells you that we have no commerce to resort to which would be either safe or profitable. It is strange we cannot confide the decision of this question to commercial men--for what commercial man would undertake a voyage which shall be attended with certain ruin? I had thought that men of great experience and information, and whose knowledge was sharpened by interest, might be safely confided in. But merchants, whose habits of life have led them to calculate, whose information extends to every part of the world, are not to be trusted with the prosecution of their own interest, but we must kindly take it in hand for them! Sir, I contend that commerce had better be left free for merchants to find a market, which every one knows they would do, from their eagerness now to ship. If they could not export with safety, or profit, they would lay a voluntary embargo, ten thousand times better than a coercive one; the very necessity of coercion shows that our merchants would sail, were it not for the embargo. I contend that the embargo is ruinous and oppressive. Need I say any thing further on the subject? Look at the country. The courts of justice shut in one of the Southern States; executions suspended in a State contiguous to this; and Maryland reduced to the same necessity, from the circumstance of there being no market for our produce. So great is the pressure that the people have it not in their power to pay their ordinary debts; and how eloquent is the fact that in a moment of peace (for certainly there is not war) we are compelled to arrest the current of justice. The legislative acts depict the situation of the country more strikingly than volumes of argument. The State Legislatures know the inability of their citizens to pay, and hold out a kind hand to assist them. In point of revenue how does it work? The honorable chairman of the committee, (Mr. CAMPBELL,) in a speech of great learning and investigation, told us that the Treasury never was more full. I wish the documents were before the House to convince us of it. But did an atom of it flow in from the operation of the embargo? If there be such a surplus, it only shows the beneficial operation of the system pursued anterior to the embargo. What is to fill your Treasury now, if the people cannot sell their products? What will in this case become of your source of wealth in the Western country? The people can neither buy lands, nor buying, pay for them. Where is the impost duty which has supported the Government, and sunk to a considerable degree the national debt? The moment you prevent all importation, there is an utter extinction of impost revenue; and at home a physical inability to produce any from the people at large. We are a rich country, abounding in the necessaries of life; we have money's worth, but no money. Nor can our people by any practical means raise money to defray the expenses of State Governments, much more of that of the United States. I am in the country, sir; I cannot collect my rents, my neighbors cannot sell wheat or tobacco. All is stopped. I ask then what physical ability we have to discharge the State taxes, or any other? We have no other way of getting money but through the sale of our produce. Gentlemen say that our revenue would fall just as short, supposing the embargo to be raised. That is begging the question, sir. They assume that for a truth which they ought to prove in the first instance. Leave commerce open, and you will soon have money in return for our produce, or that which will procure it. Revenue is the life of Government, and let me suppose gentlemen to be sitting here thirteen months hence, on the first of January, 1810. Where is your revenue then to come from? You have dried up every source of the national wealth. What must you do? Either borrow or raise money by direct taxation. There is no doubt what must be resorted to; and it was touched with great ability, though slightly touched, by the gentleman from Virginia, (Mr. RANDOLPH,) as to the consequences which must grow out of such a system of direct taxation. This species of taxation is consonant to the genius of the country, to the habits of our people--it comes too close to the pocket of the agriculturist, and is besides a source of revenue which ought to belong exclusively to the States. I hold it as a political truism, that upon the sovereignty and independence of each State, as guarantied by the constitution, do our liberties depend. I know that some of the ablest men in America opposed the adoption of the Federal Constitution on this ground: that the General Government being raised and supported on external matters only, if the time should ever arrive at which foreign commerce should cease, and internal taxes be resorted to, that great would be the conflict between the officers of the State and General Governments, which would ultimately end in the prostration of State rights. Gentlemen call the embargo, in silken phrase, a temporary suspension of commerce. I will call it by its own name; it is better known to the people by it. I contend that the embargo now laid is a perpetual embargo, and no member of this House can constitutionally say it is otherwise; for the immediate Representatives of the people have so played the game as to leave the winning trump out of their own hands, and must now have a coincidence in opinion both of the Senate and of the President of the United States to effect its repeal. If the whole of this body were to consent to a repeal, and a majority of the Senate, yet the President might resist them both. Is there any limitation to the law on the statute book? No; but there is a power given to the President to suspend it in the whole or in part, in the event of certain contingencies. Have those contingencies happened? Are they likely to happen? No, sir; and these are the views which I take of the subject. America, anxious to get red of this burden, has proffered to take it off, if either of the two belligerents would relax their edicts in our favor in relation to such one, keeping it on in relation to the other. What says the sarcastic British Minister? Why, sir, that they have no cause of complaint; that it was laid by the President as a precautionary measure; and they were told by our Minister that it was not to be considered as a hostile measure. What says France? She gives us no answer, say gentlemen. Aye, sir--and is that true? Have we indeed received no answer? I think we have one that wounds our feelings as deeply as the answer of Mr. Canning. It is the situation of our Minister abroad, who says he dare not ask for an answer, because the asking it might be injurious to our cause. What, have we a Minister abroad, and is he afraid or unwilling to make a proposition to the Government where he is resident? Surely, sir, that state of things furnishes as definite an answer as any that could be given. We have no hopes that either will remove its edicts. Sir, I consider the embargo as a premium to the commerce of Great Britain. Gentlemen say that she is a great power, a jealous power, and possessed of a monopolizing spirit. If these views be correct, by annihilating our commerce, do we not yield the seas to her, and hold out an inducement to her forever to continue her orders in force? What prospect is there that the embargo will be removed? It cannot now be got rid of by a vote of this House. We are saddled with it. If we cast our eyes to proceedings elsewhere constitutionally held on the same subject, we shall find that it is to remain still farther to oppress and burden the people of this country with increased rigor. As a measure of finance it has laid the axe to the root. The tree is down that bore the golden fruit, and will not again grow till we ease ourselves of this measure. In a fiscal point of view I cannot then for my life think it a wise or provident measure. But as a preparation for war, it is still worse; because it produces a deficiency of that out of which war alone cannot be sustained. Instead of having money for your surplus produce, it rots upon your hands; instead of receiving a regular revenue, we have arrested its course, and dried up the very source of the fountain. As to preparation at home, which is the only preparation contemplated to make, what or whom is it against? Against France? She cannot come here. Or against England, who, with the monopoly of commerce which you leave her to enjoy, has no object further to annoy you? I believe, as a preparation for war, the best expedient would be to get as much money as we could, to send out our surplus produce and bring back the supplies necessary for an army if to be raised at all--to arm and discipline the militia. A raising of the embargo would be a preparation for war--it would bring us articles of the first necessity for our surplus. But on a continuation of the embargo, things must progress from bad to worse. Another thing, sir; I do not now mean to take a constitutional view of the subject--but will not gentlemen pause and reflect on the continuance of the embargo? It is well known that the General Government grew out of a spirit of compromise. The great authors of that instrument were well acquainted with the term embargo. A temporary embargo for the purpose of sending out a squadron or concealing an equipment, was well understood. But I ask every one who hears me, if a question had been agitated in convention to give Congress a power to lay an embargo for one or two years, if the Eastern or commercial States would have agreed to it? Does any man believe it? No man who knows the country can believe it. With what sedulous anxiety did they say, in a negative provision of the constitution, that Congress should not lay an export duty! You are prohibited the minor power of taxing exports, and yet you stop exports altogether for an indefinite term. It is utterly inconceivable, that the States interested in commerce should have given their assent to any such powers so self-destructive. If they had given them, they ought to be most clear; not by implication, but most manifest. The exercise of powers counteracting principles most dear to every part of the community, ought to be assumed with the utmost caution. Under that view, except the measure be most wise in itself and its effects most clear, the Government ought not to continue the embargo. But why is it to be continued? We have taken some view of its effects at home. Let us see what effects may be expected to be produced by it abroad. An honorable gentleman told us an hundred millions were saved by having the embargo, a sum nearly equal to the whole exports of the United States for one year, excluding the capital employed. The first two or three seizures of vessels, sir, would have sent an alarm abroad, and the danger been so imminent, they would have voluntarily retired from destruction. There are no reasonable data from which to infer that one hundred millions of our property could at any one time have fallen a prey. Some few vessels might have been taken, but the rest would have escaped the grasp of the power which harassed them. I will now examine the character of this measure; for upon my word, sir, it seems a political nondescript, though we feel its effects so severely. The President tells you it is a measure of precaution only; and yet we are told by the gentlemen that it is a species of war, which America can best use to coerce the two greatest powers on the earth, commanding land and sea, to truckle at our feet. I know not how gentlemen can place our connection with foreign nations in such a predicament; whilst the President officially holds out to the world that the embargo was a peaceful measure, gentlemen now say that it is a coercive one, a sort of quasi war. I recollect a gentleman at the last session making an estimate of the West Indies being worth an hundred millions to Britain, and predicting that before the measure was ninety days known in the West Indies, it would bring that nation to our feet, that it would act as a great political lever, resting its fulcrum on Jamaica, and move all Europe to our wishes. Double the number of days have elapsed, and they hold out insulting language. How then can we trust to the future predictions of gentlemen? Their error arises from a want of knowledge of the country; a little experience is worth all the theory in the world. In the years 1774-'5, an honorable feeling adopted a non-exportation and non-importation agreement, more faithfully executed by patriotism than any law since made or enacted; for every family refused to use an article which was not raised within the bosom of its own country. Did it produce starvation in the West Indies? No, sir; the politicians of that day did not so calculate. They knew the resources of those islands, and told them that if they would convert a part of their sugar plantations into corn-fields, they would not suffer. We are now in the habit of overvaluing ourselves and undervaluing our enemies. Come the day when it will, we shall have no ignoble foes to meet. In the Revolutionary war how did England stand--how her islands? For several years she was at war with America, with Holland, with Spain, with France, whose fleets in the East and West Indies were often equal, sometimes superior to her own, and an armed neutrality in the North--during this period a French fleet blockaded the Chesapeake, and aided the capture of Cornwallis, and threatened the British islands--but how was this conflict with the world sustained? Were the islands starved during these years? did they fall? No, sir; the British nation braved the storm, and was only conquered by her sons--America was victorious and independent; but Europe retired discomfited. Sir, America can again prove victorious, but it must be by other measures than embargoes--destructive only at home and without effect abroad. It is said that one reason why the embargo has not pressed so hard on Great Britain as it might, is, that it has not been so tightly drawn as it may be; that our citizens have evaded it. And, sir, if I have not any geographical knowledge of the country, tighten the cords as you may by revenue cutters and gunboats on the seaboard, and collectors and military on land, they will escape both. Interest, ever alert, will avail itself of our extensive coast and elude the law. But gentlemen say they are not accountable for the failure in England, from another cause--the language of the public papers and pamphlets of the anti-embargoists. The enemy, we are told, has been induced to hold out under the idea that America will yield. Sir, would Great Britain rely for her oracles on the newspapers or pamphlets of this country? Have those causes wrought on her a perseverance in her measures? I wonder, sir, that, in the anxiety to find causes, gentlemen never cast their eyes to official documents--to a very important State paper issued on this side the Atlantic--saying that the marshals and civil force were not adequate to enforce the embargo. When the President's proclamation arrived in England, no doubt could have remained of the effect of the embargo. Another public record accompanied it--an act of one of the States arresting executions for debt during the continuance of the embargo, and for six months afterwards. With these public documents before them, the British nation would be more apt to judge, and more correctly judge, of the internal situation of the country, than from all the periodical publications of the day put together. Pamphlets also have been written in this country, of which it is said the British Ministry have availed themselves, to induce their people to believe that the United States are not capable of suffering. I believe we are. The people of America are as patriotic as any on earth, and will respect the laws, and must be made to respect them. They will obey them from principle; they must be made to obey them if they do not; for, while a law is in existence, it must be enforced. But I am somewhat surprised that gentlemen who talk of opposition publications in this country, as influencing England, should derive all their political data from British newspaper publications or opposition pamphlets. British opposition papers and pamphlets are with them the best things in the world; but nothing said here must be regarded there as correct. Even Mr. Baring has been quoted, who is a commission merchant, to the greatest extent perhaps known in the world. The Louisiana purchase of fifteen millions was nothing to him as a commission merchant. The next writer referred to, is Mr. Brougham, brought before Parliament, to assert the rights of a body of merchants confined almost exclusively to the continental trade. He came forward on their account, and the fact was demonstrated, notwithstanding his exertions, that the Orders in Council did not, but the prior French decrees did, curtail that commerce. So the majority thought and acted on that supposition. If the continuance of the embargo, then, does not produce a change in the policy of Great Britain, by its operation on the West Indies, if they resort to documents in this country, or even to speeches on this floor, they will probably continue the conflict of suffering as long as we are able to endure it, and continue our measures. For my opinion is, sir, that the extent of our seaboard affords such opportunities for evasion, that, unless we station cutters within hail of each other, on our whole coast, they will not be competent to carry our laws into effect. It will be benefiting the British colonies at the expense of our own country. The continuance of our measures may be productive of another consequence, attended with more serious mischief than all others together--the diversion of trade from us to other channels. Look at both sides of the case. If Great Britain holds on, (and my predictions are not fulfilled, or she will persevere,) she will look for other resources of supply, that, in the event of a war, she may not be essentially injured. She will endeavor to arrange her sources of supply, so that no one nation refusing to deal with her shall have it in their power materially to impair her interests. As to cotton, large quantities of this article were formerly drawn from the West Indies. The destruction of the sugar estates in St. Domingo gave a new direction to cultivation. They ceased to grow in many of the West India islands that article which they formerly had raised to a considerable extent, (cotton,) and which, if the increased labor employed in the sugar estates, now adequate to the supply of Europe, be not profitable, they will again cultivate. The Brazils will assist to take a sufficient quantity for consumption, (and, as well as my memory serves me, they produce seventy or eighty thousand bags annually;) and South America will add her supplies. I grant that we can now undersell these countries; but I beg gentlemen to pause before they drive England into a change of commercial habits, which in the hour of future peace may never be fully restored, and thus inflict deep and lasting wounds upon our prosperity. Sir, we are told that we are to produce great effects by the continuance of the embargo and non-intercourse with this nation. Do gentlemen who were in the majority on the subject of the embargo when laid (for I was anxious then that at least foreign nations might come and give us what we wanted in exchange for our product) recollect their argument against permitting foreign vessels to come and take our produce; that it was privilege all on one side; that it would be nominal to France, while England would be the sole carrier? Now, sir, as to the non-intercourse system--how does that operate? France has no commerce--cannot come here--and therefore is not injured by her exclusion from our ports. It operates solely on England. If the argument was then correct, to avoid the measure because it operated to the sole benefit of England, what shall we think of the non-intercourse measure which operates solely against her? In a commercial view, therefore, and in point of interest, this country will be deeply benefited by a removal of the embargo. But, gentlemen say that the honor of the country is at stake; that a removal of the embargo would be submission to Great Britain, and submission to France. How is our honor affected by removing it? We say we will not trade--with whom? With them alone? No, sir; the embargo says we will not trade with anybody. All nations, when they find it convenient, can pocket their honor for profit. What is it we do for a license to go into the Mediterranean? Do we not pay an annual tribute to Algiers for liberty to navigate the sea safer from its corsairs? Have we not an undoubted right to navigate the Mediterranean? Surely; and yet we pay annually a tribute for permission to do it--and why? Because the happiness and interest of the nation are promoted by it. In a monarchy, the Prince leads his subjects to war for the honor of his mistress, or to avenge a petty insult. But, what best consults the honor of a Republican Government? Those measures which maintain the independence, promote the interest, and secure the happiness of the individuals composing it. And that is the true line of honor which, if pursued, shall bring with it the greatest benefits to the people at large. I do not know, sir, strictly speaking, whether the destruction of any commercial right is destructive to the independence of the country; for a nation may exist independent, and the happiness of the people be secured, without commerce. So, that the violation of commercial rights does not destroy our independence. I acknowledge that it would affect the sovereignty of the country and retard its prosperity. But, are not the measures which have been adopted, submission? No train of argument can make more clear the fact, that, withdrawing from the ocean for a time is an abandonment, instead of an assertion, of our rights. Nay, I think I have the authority of the committee for it, for I speak of submission as applicable to the measure recommended by the committee. They say, that "a permanent suspension of commerce, after repeated and unavailing efforts to obtain peace, would not properly be resistance; it would be withdrawing from the contest, and abandoning our indisputable right freely to navigate the ocean." If a permanent embargo, after repeated offers of peace, would not properly be resistance, but an abandonment of our rights, is not a temporary embargo--and this has been a year continued--an abandonment for the time? Unquestionably it is. So long as it continues, it does abandon our rights. And now I will show that it is submission, and not resistance. I maintain that the embargo, aided by the second and third resolutions of the committee, does complete an abandonment of our maritime rights, and is a submission to the orders and decrees. Of what nature are the rights in contest? They are maritime rights, and not territorial; and, to be used, must be exercised exterior to the limits of our territory. Whatever measures are confined within our territorial limits, is not an assertion or enjoyment of our exterior rights. Their enjoyment must be abroad, consisting of the actual use of them. If, then, all our measures be confined within our jurisdictional limits, they cannot amount to an enjoyment of the rights exterior to those limits. I will illustrate this, to every man's comprehension. There is a street in Georgetown, through which every one has a right to pass--it is a highway. A merchant, with whom I have dealt for many years, because I purchase some articles of another merchant, says I shall not go through that street. I cross over, and his enemy says I shall not pass by him. I retire home and call a consultation of my friends. I tell them that I have entered into resolutions, first, that, to submit to this will be an abandonment of my right to pass and repass. Well, what then, say my friends? Why, I declare I will neither go nor send to either of their houses--have no intercourse with them. Well, what then? Why, I will buy a broadsword and pair of pistols, and lock my door and stay at home. And do I enjoy my right of walking the street by making myself a prisoner? Surely not, sir. Now, this is precisely our case, under these resolutions. We say, that to submit, would be a wound on our honor and independence. We call a consultation. What is the result of it? We say we will have no intercourse with the nations injuring us, nor with any other; and, lastly, that we will arm and defend ourselves at home. And, I ask, is this resistance? Is it an enjoyment of our rights, or a direct, full submission? Is it not an abandonment of those rights to which we are entitled? It has been said, that the little portion of commerce which would remain unaffected by the belligerent edicts, would belong to us as a boon from England, were we to prosecute it. I do not understand it in this light. Our right to navigate the ocean is inherent, and belongs to us as a part of our sovereignty; but, when interdicted from any one place, if we go to another, we certainly do not accept that commerce as a boon. I might as well say, if a man interdicted me from going down one street in Georgetown, that I accept a boon from him in going down another. This is certainly not the case. The trading to these places is exercising our original right, not interfered with; and, so far as those orders and decrees do not operate, we could carry on a legitimate trade, flowing from our indisputable right, as a sovereign nation, to navigate the ocean. It does seem to me then, sir, that the residue of our trade might be carried on without submitting to the belligerent edicts. But, an honorable gentleman (Mr. G. W. CAMPBELL) asked me, yesterday, if we were to permit our enemies to take any part, whether they would not take the remainder? This, like the horse's tail in Horace, would be plucked, hair by hair, till it was all out. True, sir, this might possibly happen. But, what have we done? Why, we have cut the tail off, for fear all the hair should be taken out. We have ourselves destroyed all that portion of our trade which the belligerents have not interdicted. Taking the whole into view, then, I think that the continuance of the embargo, as an assertion of our rights, is not an efficient mode of resistance. But gentlemen say, in a crisis like the present, when each individual ought to contribute his mite, it is very easy to find fault; and they ask for a substitute. I want no substitute. Take off the embargo. That is what I want. But when called upon in this manner, I cannot help looking around me to the source whence I expected higher and better information. The crisis is awful. We are brought into it by the means recommended by the head of our foreign relations. I think the President advised the embargo. If he did not, he certainly advised the gunboats and the additional military force. In these minor measures, which have been in their consequences so interesting, there was no want of advice or responsibility. Why then, in this awful crisis, shall we not look to the same quarter? The responsibility is left on us. We anti-embargoists show that things would not have been thus, had our advice been taken; and, not being taken, we have little encouragement to give more. Our advice is on the journals. We said, let us have what commerce we can get, and bring home returns to stimulate our industry. I believe the declarations of gentlemen when they say that they are friendly to commerce; but their fondness for it is the embrace of death. They say they will protect it; but it is strange that they should begin to protect it by abolishing it. I contend that their measures have not answered the purposes of protection, but on the contrary they have been prejudicial to it; and I trust in their candor that they will join us in giving elasticity to commerce, and removing this pressure. The interests of commerce and agriculture are identified; whenever one increases, the other extends. They progress _pari passu_. Look at your mercantile towns; and wherever you find one, like a pebble thrown into water, its influence extends in a circle more or less remotely, over the whole surface. Gentlemen from the agricultural country vote to support commerce, because it increases the value of their own product; they are not so disinterested as they suppose, and I believe the best way is to consider the two inseparable. As I am at present disposed, could I not obtain a total repeal, I would prefer a resolution laid on the table by a gentleman (Mr. MUMFORD) from one of the largest commercial cities in the Union, and who must be supposed to know the opinion of commercial men. I can scarcely with my knowledge or understanding point out any thing; but if I have not capacity to be one of the _ins_, I can readily perceive whether the present system be adequate or not. I would let our vessels go out armed for resistance; and if they were interfered with, I would make the dernier appeal. We are able and willing to resist; and when the moment arrives, there will be but one heart and hand throughout the whole Union. All will be American--all united for the protection of their dearest rights and interests. Mr. LYON opposed the report in a speech of an hour. Mr. DESHA said he had been particularly attentive to the whole of the debates during the very lengthy discussion of this important subject, and, said he, I am at a loss how to understand gentlemen, or what to conclude from their observations. Am I to conclude that they are really Americans in principle? I wish to do so; and I hope they are; but it appears somewhat doubtful, or they would not tamely give up the honor of their country by submitting to French decrees and British Orders in Council--that is, by warmly advocating the repeal of the embargo, without proposing something as a substitute. Do gentlemen mean an abject acquiescence to those iniquitous decrees and Orders in Council? Do gentlemen mean that that liberty and independence that was obtained through the valorous exertions of our ancestors, should be wrested from our hands without a murmur--that independence, in the obtaining of which so much virtue was displayed, and so much blood was shed? Do they mean that it should be relinquished to our former masters without a struggle? Gentlemen assign as a reason why the embargo should be removed, its inefficacy--that it has not answered the contemplated purpose. I acknowledge that as a measure of coercion it has not come entirely up to my expectations. It has not been as efficient as I expected it would have been. But what are the reasons why it has not fully come up to the expectations of its supporters, as a measure of coercion? The reasons are obvious to every man who is not inimical to the principles of our Government, and who is not prejudiced against the present Administration. Was it not for want of unanimity in support of the measure? Was it not in consequence of its having been wantonly, shamefully, and infamously violated? and perhaps winked at by some who are inimical to the principles of our Government; but who have had address and ingenuity sufficient to procure themselves to be appointed to office, and in which situation they have obtained a certain influence, and by misrepresentations as well as clamorous exertions have, in many instances, led the unwary astray, and caused the measure to become unpopular in some parts of the country? By improper representations and fallacious statements of certain prints, apparently, and I might add, undoubtedly, hostile to civil liberty and free Government, and advocates of British policy; by the baneful opposition of British agents and partisans, together with refugees or old tories, who still recollect their former abject standing, and who have never forgiven the American independence, and who, in all probability, are doing all in their power at this time to assist their master George the Third in bringing about colonization and vassalage in this happy land--by keeping up party spirit to such a height, that the tyrant of the ocean was led to believe that he had a most powerful British party in the bosom of our country--and that, by an extraordinary opposition made to the embargo, we would become restless, and could not adhere to a suspension of commerce--consequently would have to relax, and fall into paying tribute, under the Orders of Council, to that corrupt Government, Britain. These are part of the reasons why the embargo, as a measure of coercion, has not proved completely efficacious; and had it not been for this kind of conduct, our enemies would have been brought to a sense of justice, an amicable adjustment of differences would have taken place. By this iniquitous conduct they have tried to wrest from the hands of Government an engine, the best calculated of all others that could have been imagined, to coerce our enemies into a sense of justice, and bring about reciprocity of commerce, that most desirable object, a system of all others the best suited to the peaceful genius of our Government. But if it has not been entirely efficacious as a measure of coercion, it has been particularly serviceable in many instances--by keeping us out of war, which is at all times to be deprecated by civilized men, by preserving our citizens from becoming victims of British tyranny on board their war ships, and securing an immense amount of American property that was sailing on the ocean, supposed to amount in value to between sixty and a hundred millions of dollars, the principal part of which would inevitably have fallen into the voracious jaws of the monster of the deep, or into the iron grasp of the tyrant Napoleon--by which, if we are involved in war, we have preserved the leading sinews, wealth; and above all, for preventing us from becoming tributary to those piratical depredators, whose inevitable determination is to monopolize the whole trade of the world, by which they rob us of our inherent rights. If gentlemen had come forward with propositions to adopt any thing as a substitute for the embargo, that would have prevented us from the degradation of submission, or from falling into the hands of those monsters of iniquity, they no doubt would have met with support. The friends of this measure are not so particularly attached to it, but what they would willingly exchange it for one that was less sorely felt, less oppressive, and one that would preserve national honor, and bring about a redress of grievances; as it was with extreme regret that they had to resort to the measure of the embargo, and which could only be warranted by the necessity of the case. I am as anxious for the repeal of the embargo as any gentleman in this House, or perhaps any man on the continent, whenever it can be done consistent with the honor and welfare of the nation. The citizens of Kentucky, whom I have the honor to represent, feel its effects in common with their fellow men throughout the continent; but their patriotism is such that they bear it with cheerfulness, and magnanimity, and very justly consider it as a preventive of greater evils. I think that a retrograde step at this time would have the appearance of acquiescence, and be calculated to mark the Government with pusillanimity; therefore I deprecate war, believing as I do, that in a Government constructed like ours, war ought to be the last alternative, so as to preserve national honor. As such it would perhaps be advisable to adopt something like the second resolution that is under consideration, which, in addition to the embargo, would amount to a complete non-intercourse--which if systematically adhered to must produce the desired effect. If it should not, it will at least give time to make preparations for a more energetic appeal, which may probably have to be the result. But let it not be understood, because I am for avoiding war, as long as it can be avoided upon honorable terms, that I am against going to war when it becomes actually necessary. No, sir, my life and my property are at all times at my country's command, and I feel no hesitation in saying that the citizens of Kentucky, whom I have the honor to represent, would step forward with alacrity, and defend with bravery that independence in which they glory, and in the obtaining of which some of the best blood of their ancestors was spilt; for the degradation of tribute they would spurn with manly indignation. I would even agree to go further. From my present impression, I would agree to a recall of our Ministers from both England and France, and to a discharge of theirs; and have no intercourse with the principal belligerents until they learned to respect our rights as an independent nation, and laid aside that dictatorial conduct which has for years been characteristic of those European despots; for I am almost certain, under existing circumstances, that our Ministers in neither England nor France can do us any possible service, and that their Ministers here can, and in all probability do a great deal of harm, by fomenting division and keeping up party spirit, at a time, too, when unanimity is of the utmost consequence. As to our commerce being driven from the ocean, I am not disposed to take a lengthy retrospect, or to examine minutely in order to discover which of our enemies, England or France, was the first aggressor; it is sufficient for me that both France and England have done nearly all in their power to harass and oppress us in every imaginable way. I am not the apologist of either France or England. I am an American in principle, and I trust whenever it is thought necessary to call my energies into action I shall prove myself to be such, by defending and protecting the rights and independence of my own country, from any encroachments, let them come from what quarter they may. By those iniquitous decrees of France, all vessels bound to or from England are deemed lawful prize, and if spoken by an English ship they were condemned in the prize courts of France. When a ship arrived in any of the French ports, bribery and corruption was practiced; in order to succeed in her condemnation, a separate examination of the crew would be resorted to, as to the events that happened on the voyage; offers made of one-third of the ship and lading as their portion of the prize money, if they would give information of their vessel having touched at any of the ports of England, or that any English cruiser had visited her on the voyage. Consequently, by the French decrees, all property afloat belonging to the Americans was liable to seizure and condemnation. Are gentlemen, possessing the feelings of Americans, prepared to submit to such degradation? Are they prepared to say the embargo shall be raised, while our commerce is subjected to this kind of depredation? I trust not. As respects the British Orders in Council, all American vessels bound to French ports, or to any of the allies of the French, are considered good prize in the courts of Britain. England says you must not carry on any trade to any of the places that I have interdicted, without obtaining my leave--pay me a duty, and then you shall be permitted to go to any port--by paying me a tribute you may trade to any port you please. Degrading to freemen! Britain in her goodness says, you shall have the liberty to bring flour from the United States of America to England, land it, and re-export it, by paying two dollars on every barrel into my coffers. On cotton, which is certainly a very important article, a duty is charged on its exportation of about nine pence per pound sterling; nearly equal to the full value of that article in the parts of America where it is raised, exclusive of the import duty, which is two pence in the pound. Therefore, if our traders wish to go to the Continent of Europe, the condition is, a tribute must be paid nearly equal to the value of the cargo, exclusive of the insurance and risk. If I mistake not, about two-thirds of the cotton exported from this country is made use of in England; on the balance a tribute must be paid of about nine pence sterling per pound, which is about twenty millions of pounds--on a calculation the sums will be found to be enormous--purely for the liberty of selling cotton; as also high and oppressive duties on other articles. If these impositions are submitted to, I pronounce your liberties gone--irretrievably lost--a blot made in the American political character, never to be obliterated. No man possessing an American heart will submit to the degradation of paying tribute to any nation on earth, nor suffer the freemen of America to be taxed without their consent. Will gentlemen say the embargo law must be repealed, and suffer our commerce to flow in its usual channel, while the decrees of France and the British Orders in Council are enforced, by which they would not only be liable to seizure and condemnation, but what is more degrading, pay a tribute of many millions of dollars annually, too degrading to be thought of with patience? We received liberty in its purity from our heroic ancestors--it is a duty incumbent on us to transmit it to posterity unsullied, or perish in the undertaking. But, sir, it has been said that the people of the East would not bear the continuance of the embargo any longer--that they would force their way in trade; hinting, I presume, that they would openly rebel against your laws if they were not allowed to pursue their usual course in commerce, by which they subscribe to those nefarious Orders in Council, which is tribute of the most degrading kind. Who are these people of the East that have the hardihood to insinuate any thing like rebellion against the laws of the land, or that would wish to degrade themselves so far as to pay tribute? It cannot be the descendants of the heroes of '76, that bravely stepped forth and fought against a tyrant for liberty! It cannot be the descendants of those brave fellows that struggled on the brow of Bunker's Hill for independence! No. It must be the descendants of refugees or old tories, or otherwise it must be British agents or partisans; for no man possessing the feeling that an American ought to feel, would throw out such threats, or degrade himself by coming under tribute. If patriotism has left the land of freedom--if it has taken its flight from the mild and peaceful shores of Columbia--if foreign influence and corruption has extended itself so far that the people are disposed to rebel against the Government of their country--if the dissemination of foreign gold has had the baneful effect of suppressing all noble and patriotic sentiments, it is indeed time that foreign intercourse should cease. If the spirit of commercial speculation and cupidity had surmounted all patriotism, it is time that more energetic measures should be resorted to, in order that the chaff might be separated from the wheat; in a word, that traitors might be known. Mr. NELSON said it was with very considerable reluctance that he rose to make a few remarks on this subject, after the very lengthy and very eloquent discourse of the gentleman from Maryland, (Mr. KEY.) I did not intend, said he, to have troubled the House upon this question; but as I am a man who generally speaks off-hand, it is necessary for me to answer the arguments of any gentleman promptly, if I intend to do it at all. For this reason I rise to do away some false impressions which may have been made by the gentleman's eloquence on the House, and on the by-standers, in the galleries, for I must say that his speech was better calculated for the galleries than for the sober members of this House. The gentleman commenced his argument with stating, what I do not believe, with due submission, is true in point of fact, that, although at their last session the Legislature of Maryland passed resolutions approving the embargo, yet another election having taken place, the present Legislature have passed contrary resolutions. Mr. KEY said he had spoken of the House of Representatives of Maryland, and not of the Legislature. Mr. NELSON said the House of Representatives have, to be sure, passed resolutions bottomed on the same principles as those on which the gentleman himself has spoken, and which I have heard echoed in the electioneering campaign from almost every stump in the district in which I live. Whilst the gentleman was on this subject, I wish he had told us of the philippic these resolutions got from the Senate of Maryland. The fact is not, as I understood the gentleman to say, that the Legislature of Maryland have passed resolutions disapproving the measures of the Government. But the gentleman intimates that the politics of Maryland have undergone a great change, and that the party formerly uppermost, is now under. Sir, the question which turned out the old members of the Legislature in the county where I live, was not the embargo system, but a question as to a State law. The militia system was the stumbling-block which caused many of the old members to be turned out, and thus the opposite party got the ascendency in one branch of the Legislature of Maryland. But, since that election, another has taken place for members of Congress; and how has that turned out? Why, sir, that gentleman and two other anti-embargoists are elected, whilst six men, who have always approved of it, are also returned; making six to three. Does this prove a change? No, sir. But we have had another election since that. Out of eleven electors, nine men are returned as elected who have approved this system of measures. Does this prove that the embargo was the cause of the change of the politics of the Maryland Legislature? I think not, sir. But the gentleman has said that the embargo, and not the Orders in Council and decrees, has destroyed the commerce of this country. I do not know, after all the arguments which I have heard, if the gentleman listened with the same attention as I did, how he could make such an assertion. When our ports are blockaded, and all the world is against us, so that, if the embargo was raised, we could go nowhere with perfect freedom, can gentlemen say that the embargo has ruined our commerce? Is it not these acts which have shut us out from a market? The gentleman says we may trade to England. Yes, sir, we may, provided we will pay all such duties as she chooses, and go nowhere else. And would not the doing this place us in precisely the same situation as we were in before the Revolution? England says we may trade with her, paying heavy import and export duties, but says we shall go nowhere else. If you go anywhere else, she says you shall go by England, take a license, and pay a duty, and then you may trade. Is it to be supposed that the people of the United States will agree to this? Are they reduced to that situation, that they will become the vassals of a foreign power--for what? Why, sir, for the prosecution of a trade with that foreign power, who, if her present impositions be submitted to, may cut up our trade in any manner she pleases; for, through our trade, she will raise a revenue to almost an equal amount with the value of your whole produce carried hence. She levies a higher tribute on some articles than the article itself is worth, and this trade the gentleman wants to pursue. He wants no substitute; "take off the embargo," says he, "and let us trade." Sir, if we could trade upon equal terms, I, too, should say, "take off the embargo, and let us trade." But if we cannot trade, except under the license of a foreign power, I say it would be ruinous to us. And has it come to this, for all the arguments go to this, that the American people, for the sake of pounds, shillings, and pence, for the sake of hoarding up a few pence, are to give up their independence, and become vassals of England and France? I hear nothing from the gentleman about the _honor_ of the nation. It would appear as if gentlemen on the other side of the House are willing to sell their country if they can put money in their pocket. Take off the embargo, they cry--for what? money. Pay tribute--for what? money. Surrender your independence--for what? all for money, sir. I trust the people have a different feeling from these gentlemen. The people love money, sir; but they love liberty and independence much better. If money had been the sole object, the Revolution would never have happened; and if that be our sole object now, the blood spilt and money spent in our Revolution was all in vain. But the gentleman says, that our honor is not concerned; that Republics have none; that their honor is to pursue that course by which they can make the most money. Mr. KEY said that he did not say that the honor of the nation was money; but that the line of conduct was most honorable which best secured the happiness and independence of the people. Mr. NELSON.--I ask pardon of the gentleman if I misrepresented him; because the gentleman's argument was quite vulnerable enough, without my making it more so than it really was. I did understand the gentleman to say, and had he not contradicted me, should still believe so, that the honor of the Republic is precisely that which brings the most riches to the nation. But I ask, whether the line of conduct recommended by that gentleman be such a one as would be proper to secure and take care of the independence of the people? Is it to secure the independence of the people, to suffer a foreign nation to impose upon them any terms which it thinks proper? Is it for the honor or happiness of this nation that we should again pass under the yoke of Great Britain? Is it for the honor of the nation to remove the embargo, without taking any other measure, and to bear with every indignity? No, sir; and yet the gentleman tells you, "take off the embargo, I want no substitute." I did not suppose, sir, that gentlemen who oppose our measures (for I have great charity for them) would openly tell us to take off the embargo, and trade as foreign nations choose to dictate. But the gentleman talks about the pressure of the embargo. That it does press hard is beyond doubt. It is an evil thing in itself; something like the dose a doctor gives us; it is a disagreeable thing in itself, but it cures your complaint. Thus the embargo is a disagreeable thing; but if we swallow it, however disagreeable, it may bring the political body to health. The gentleman gilds the pill he would give us; but it is a slow poison that would creep upon us, and bring on a distemper heretofore unknown to us, that sooner or later would carry us to the grave. We take off the embargo, and trade on their terms; what will be the consequence? Will they not forever hereafter compel us to trade as they please? Unquestionably. And is it not better to submit to some inconveniences, eventually to insure a free trade? The gentleman says that, if produce be offered for sale, on condition that the embargo be raised, it will bring a higher price than if on a certainty that the embargo is to be continued. No doubt, sir, when the embargo is taken off, a momentary spur will be given to exportation; but how long will it continue? It will last but a very few weeks. Produce will soon be reduced to its proper level in the market. Take flour, for instance, the principal article raised for exportation in the gentleman's district and mine. It would rise, on a removal of the embargo, to ten or twelve dollars; and how long would that price last? It would be a thing of a day, and to the people who live in our districts of no sort of consequence; it would be of no benefit but to those who have flour at the market; to the merchants who have bought it up at a low price. Before the honest farmer can bring his produce to market, the great price will be all over; and though no embargo affects it, will be down to its present price, of four or five dollars; so that, although a removal of the embargo would reduce the price of produce at first, I cannot see how gentlemen would make that an argument for taking off the embargo. If the gentleman can show that the price will continue, and that we can traffic without dishonor, then, sir, would I cordially join hands with him to take off the embargo. But the gentleman says, that the pressure is so very great that some of the States have passed laws for suspending executions. I know not what has been done in other States on this subject, nor what has been done in my own. If the gentleman has any information on the subject, I should like to hear it. A bill was before the House of Delegates for that purpose, but I did trust in God that it would be unanimously rejected. That such a law would pass in Maryland I never had an idea, because it is totally unnecessary. There are fewer men confined in jail for debt on this day than there ever were before for sixteen years that I have been in the practice of the law in that State. No man has gone to jail but those who, to use an emphatic expression, have _broken into jail_, who were too idle to work to pay their debts; who would get a friend to put them into jail, if they could get no other; and who stay there awhile, and then come out new men. This being the case, there can be no reason for shutting the courts of justice there. On the subject of revenue, I can only say, that at present there appears to be no deficiency of money in the Treasury. It is very certain that if this embargo and non-intercourse system be continued long, our Treasury will run short, and we shall have no means of filling it but by loans or direct taxation. But I trust and hope that before the money already in the Treasury is fairly expended, if we pursue our object we shall get over our embarrassments. Rather than pursue this subject much further, I would not only arm our merchantmen at sea, but our citizens on the land, and march to the North and East, and see if we could not do them some injury in return for all that we have received from them, even if we should do ourselves no good by it. It would do me some good to be able to do them some injury. I confess I do not like this Quaker policy. If one man slaps another's face, the other ought to knock him down; and I hope this will be our policy. But the gentleman says that the President recommended this measure to Congress as a measure of precaution. I do believe that, at the time the embargo was laid, it was done as a measure of precaution, and the President viewed it in that light. After its having answered every purpose as a measure of precaution, I am for continuing it as a measure of coercion. For, whatever gentlemen say about turning sugar plantations into cotton-fields, if the embargo be rigidly enforced, that we shall distress the West Indies very considerably, I do believe. I am unwilling to involve this country in a war if I can avoid it, but I am still more unwilling to take off the embargo and embrace the proposition of my colleague: for I have no idea of a free trade being permitted to us. In any country a war is to be deprecated; in this country particularly, where every thing depends on the will of the people, we ought to be well aware that war meets the approbation of the people. We might make many declarations of war without effect, unless the people follow us. We try every method to obtain honorable peace; and if we do not succeed, the people will go with us heart and hand to war. I shall enter into no calculations on this subject, sir. When the great question is presented to us whether we will submit or maintain our independence, we must determine either to do one or the other: that nation is not independent which carries on trade subject to the will of any other power. Then, to my mind, the only question is, shall we defend ourselves, or shall we submit? And on that question I will make no calculations. If a man submits, of what use are calculations of money, for it may be drawn from him at the pleasure of his master? Let us have as much trade as we may, if we can only carry it on as others please, we need not calculate about money. We shall be poor, indeed; and, having lost our independence, we shall not even have money in return for it. But this nation will not submit, sir, nor will any man, who is a real American, advocate such a doctrine. As to the embargo, Mr. N said he was not wedded to it. If any better system were devised, he would give up the present system and embrace the better one, let it come whence it would. The House adjourned without taking a question. FRIDAY, December 9. Mr. LEWIS presented a petition of the President and Directors of the Washington Bridge Company, praying a revision and amendment of an act passed at the last session of Congress, entitled "An act authorizing the erection of a bridge over the river Potomac within the District of Columbia."--Referred to the Committee for the District of Columbia. Mr. JEREMIAH MORROW, from the Committee on the Public Lands, presented a bill to revive and continue the authority of the Commissioners of Kaskaskia; which was read twice, and committed to a Committee of the Whole on Monday next. An engrossed bill to authorize the President to employ an additional number of revenue cutters was read a third time: Whereupon, a motion was made by Mr. DURELL that the said bill be recommitted to the Committee of Commerce and Manufactures, farther to consider and report thereon to the House: it passed in the negative. The main question was then taken, that the said bill do pass, and resolved in the affirmative--yeas 90, nays 26, as follows: YEAS.--Evan Alexander, Lemuel J. Alston, Willis Alston, jun., Ezekiel Bacon, David Bard, Joseph Barker, Burwell Bassett, William W. Bibb, William Blackledge, John Blake, jun., Thomas Blount, Adam Boyd, John Boyle, Robert Brown, William Butler, Joseph Calhoun, George W. Campbell, Matthew Clay, John Clopton, Richard Cutts, John Dawson, Josiah Deane, Joseph Desha, Daniel M. Durell, William Findlay, James Fisk, Meshack Franklin, Francis Gardner, Thomas Gholson, jun., Peterson Goodwyn, Edwin Gray, Isaiah L. Green, John Harris, John Heister, William Helms, James Holland, David Holmes, Benjamin Howard, Reuben Humphreys, Daniel Ilsley, Richard M. Johnson, James Kelly, Thomas Kenan, Philip B. Key, William Kirkpatrick, John Lambert, Edward Lloyd, John Love, Robert Marion, William McCreery, William Milnor, Daniel Montgomery, jun., John Montgomery, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John Morrow, Gurdon S. Mumford, Roger Nelson, Thomas Newbold, Thomas Newton, Wilson C. Nicholas, John Porter, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Matthias Richards, Samuel Riker, Benjamin Say, Ebenezer Seaver, Samuel Shaw, Dennis Smelt, John Smilie, Jedediah K. Smith, John Smith, Samuel Smith, Richard Stanford, Clement Storer, Peter Swart, John Taylor, John Thompson, George M. Troup, James I. Van Allen, Archibald Van Horne, Daniel C. Verplanck, Jesse Wharton, Robert Whitehill, Isaac Wilbour, Alexander Wilson, and Richard Wynn. NAYS.--John Campbell, Martin Chittenden, John Culpeper, John Davenport, jun., James Elliot, William Ely, Barent Gardenier, William Hoge, Richard Jackson, Robert Jenkins, Joseph Lewis, jun., Edward St. Loe Livermore, Nathaniel Macon, Josiah Masters, Jonathan O. Mosely, Timothy Pitkin, jun., John Russell, James Sloan, William Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Jabez Upham, Philip Van Cortlandt, David R. Williams, and Nathan Wilson. _Resolved_, That the title be, "An act to authorize the President to employ an additional number of revenue cutters." A message from the Senate informed the House that the Senate have passed a bill, entitled "An act farther to amend the judicial system of the United States;" to which they desire the concurrence of this House. _Foreign Affairs._ The House resumed the consideration of the unfinished business depending yesterday at the time of adjournment--the report of the committee still under consideration. Mr. D. R. WILLIAMS said: It has become very fashionable to apologize to you, sir, for every trespass which a gentleman contemplates making on the patience of the House, and I do not know but in ordinary cases it may be very proper; but the present question is certainly such a one as exempts every gentleman from the necessity of making any apology whatever. I shall offer none, and for the additional reason, that I have given to every member who has spoken the utmost of my attention. Upon this question, which presents itself in every point of view too clear to admit of a single doubt; equally unsusceptible of sophistical perversion or misrepresentation; a question which involves a political truism, and which is undenied; a debate has grown out of it, embracing the whole foreign relations of this country. I shall not attempt to follow the gentlemen in the course which they have pursued, but will confine my observations to a justification of the embargo, and to the proof, that the orders and decrees of the belligerents, and not the embargo, as was said by the gentleman from Maryland, (Mr. KEY,) have produced the present embarrassments. Bad as our situation was at the close of the last session, it has now become infinitely worse. The offer to suspend the embargo laws, for a suspension of the Orders in Council, made in a sincere spirit of conciliation, has been contemptuously rejected, those orders justified, and an extension of their operation threatened: this is a state of things insufferable. At a crisis of this sort, the importance of which every gentleman acknowledges, I deem it proper that every man who feels an ardent love of country should come forward to save that country, to rescue his sinking parent from the jaws of pollution. The effort should be, who shall render our common country the most good; who will be foremost in the ranks; we should not shrink behind the irresponsible stand of doing nothing, ready to raise ourselves upon the mistakes of others; perhaps, the virtuous misfortunes of our political brothers. I am willing to take my share of the responsibility of asserting the wisdom of the original imposition of the embargo, and the correctness of its present and future continuance. Gentlemen have been frequently called upon, while they make vehement declamation against the embargo, to say what they wish in its stead; they declare the utmost hostility to the measure, and yet they offer no substitute. Can they for one moment forget, that upon this question as upon every other national subject, we must all hang together or be hung separate! It inevitably follows from the organization of our Government, that this is the fact. I consider the original imposition of the embargo, as wise in a precautionary point of view; and notwithstanding all that has been said, and eloquently said, by the gentleman from Maryland, (Mr. KEY,) I believe it was called for by the most imperious public necessity. Every one must know, that had it not been for the embargo, millions of property, and (what is worse) thousands of our seamen, must have fallen a sacrifice to the cupidity of belligerent cruisers. No need of calculations on this subject--I shall not stop to enter into one. I appeal to the common sense of the nation and of this House, whether or not the orders and decrees were calculated to have swept from the ocean all our floating property and seamen. But, no, say gentlemen, the seamen are not saved; and here we are amused with the old story, new vamped, of the fishermen running away. The seamen gone, sir! This is a libel on their generous and patriotic natures. Where are they gone? Every man who ventures such an allegation, is bound to prove it; because it is, if true, susceptible of proof. Surely, sir, the assertion, or even proof, that British or other foreign seamen have left your service, does not establish that American seamen have deserted their country. The British seamen gone! I am glad of it, sir. I wish there had never been one in our service; and if there is an American tar who would, in the hour of peril, desert his country, that he would go also. The thing is impossible sir; every vessel which has sailed from the United States since the imposition of the embargo, has passed under such a peculiar review before the officers of the revenue, that had any number of American seamen shipped themselves, proofs of their departure might, and certainly would, have been had. Read the intelligence from Nova Scotia; it informs us that none but English sailors have arrived there. I call upon gentlemen then to show how, where, and when, an American seaman has left his country, except in the pursuit of his ordinary vocation. If the gentleman from Maryland (Mr. KEY) will apply to his political--I beg pardon--to his mercantile barometer, the insurance offices, he would find that, after the operation of the Orders in Council was known, insurance could not have been effected at Baltimore to the Continent of Europe for 80 per cent., and not at London, on American property, for 90 guineas per cent. The proof of this is before me. Does not this prove that so much danger existed on the ocean that it was next to impossible to pass without seizure and condemnation? And surely he will not contend that this advance of premium was caused by the embargo? If the embargo then has saved any thing to the country--and that it has there can be no doubt--exactly in the proportion that it has saved property and seamen to you, it has lessened the ability of the enemy to make war upon you, and what is primarily important, lessened the temptation to war. The rich plunder of your inoffensive and enlarged commerce, must inevitably have gone to swell the coffers which are to support the sinews of war against you. The reaction thus caused by the embargo, is in your favor, precisely to the amount of property and men which it has saved to you from your enemies. But we are told that the enterprising merchant is deprived of an opportunity--of what? Of ruining himself and sacrificing the industry of others. Has any capitalist said he would venture out in the present tempest which blackens the ocean? No, sir, they are your dashing merchants; speculators, who, having nothing to lose and every thing to gain, would launch headlong on the ocean, regardless of consequences. No commerce can be now carried on, other than that which is subservient to the Orders in Council. I appeal to the gentleman from Rhode Island (Mr. JACKSON)--no man is better informed on this subject--would he venture his property on the ocean in a trade contravening those orders? I would ask him further, would Brown and Ives, merchants, as remarkable for their prudence as for their enterprise, and for their capital as either; would they send their vessels to the Continent of Europe? I believe their opinion would corroborate the opinion of Mr. Gray. The mercantile distresses have been described, with every possible exaggeration, as insufferable. The real distress, sir, is quite sufficient, without any undue coloring. I regret extremely, indeed, sir, from my heart and soul, I lament that the embargo should be considered as falling heavier on the merchant than on the planter. If I know my own heart I would share with them to the last loaf. But compare their situation now with what it would have been if their whole property had been swept away. Compare their present situation with that which must have been the necessary consequence of the seizure of all the floating, registered tonnage of the United States, and which would have happened, but for the embargo. Their vessels are now in safety; if the embargo had not been laid they would have lost both vessel and cargo. They must have either imposed an embargo on themselves, or exposed their capital to total destruction. Another reason why I approve of the embargo, and which, really to my mind, is a very consolatory reason, is, it has at least preserved us thus far from bloodshed. I am one of those who believe the miseries of this life are sufficiently numerous and pressing without increasing either their number or pungency by the calamities inseparable from war. If we had put the question to every man in the nation, the head of a family, whether we should go to war or lay an embargo, (the only choice we had,) nineteen out of twenty would have voted for the embargo. I believe, sir, the people of the United States confiding their honor and national character to your guardianship, would this day decide the same question in the same way. The people have nothing to gain by war, nothing by bloodshed; but they have every thing to lose. From this reason results another, equally satisfactory; we are still free from an alliance with either of the belligerents. Upon a loss of peace inevitably follows an alliance with one of those two powers. I would rather stake the nation on a war with both, than ally with either. No, sir, I never will consent to rush into the polluted, detestable, distempered embraces of the whore of England, nor truckle at the footstool of the Gallic Emperor. But the embargo has failed, it has been triumphantly asserted on one side of the House, and echoed along the vaulted dome from the other. If it has, it is no cause of triumph; no, indeed, sir; but it is a cause of melancholy feelings to every true patriot, to every man who does not rejoice in the wrongs of his country. Why has the measure failed of expected success? The gentleman from Maryland (Mr. KEY) used an argument incomprehensible to me, as an argument in his favor; on my side it is indeed invincible. He has established it was the evasion of the laws which prevented their being effectual. He tells you that certain evaders of the laws have so risen up in opposition to them, that the President of the United States was obliged to issue his proclamation in April last; that this proclamation told the British Cabinet the people had rebelled against the embargo--but I will pass over the subject; it imposes silence on me, because it must speak daggers to the hearts of some men. My friend from Virginia (Mr. RANDOLPH) urged one argument against the embargo, which, to be sure, is a most serious one. He asked if we were prepared to violate the public faith? I hope not, sir. I beg to be excused for asking him (for I know he scorns submission as much as any man) if submission will pay the public debt? To that gentleman's acute and comprehensive mind, the deleterious consequences of the present system of the belligerents to our interests, must be glowing, self-evident. He will see that their present measures carry destruction to the most valuable interests, and are subversive of the most sacred rights of the people; and if they are submitted to, every thing dear to an American must be afflicted with the slow, lingering, but certain approaches of consumption. I had rather go off at once. I have no opinion of a lingering death. Rather than the nation should be made to take this yoke, if so superlative a curse can be in store for us, may the hand of Heaven first annihilate that which cannot be nurtured into honor. I had much rather all should perish in one glorious conflict, than submit to this, so vile a system. But we are told, that the embargo itself is submission. Indeed, sir! Then, with all my heart, I would tear it from the statute book, and leave a black page where it stood. Is the embargo submission? By whom is it so called? By gentlemen who are for active offence? Do these gentlemen come forward and tell you that that the embargo is submission? No such thing, sir. My memory deceives me, if any man who voted for the embargo thinks it submission. They are the original opponents of the embargo who call it submission, and who, while they charge you with the intention, are by every act and deed practising it themselves. It is incorrect, sir. Every gentleman who has spoken, and who has told you that the embargo is submission, has acknowledged the truth of the resolution under consideration; it has not been denied by a single individual. Suppose then we were to change its phraseology, and make it the preamble to a resolution for repealing the embargo, it will then read: "whereas the United States cannot without a sacrifice of their rights, honor, and independence, submit to the late edicts of Great Britain." Therefore resolved, that the embargo be repealed, and commerce with Great Britain permitted. Do these two declarations hang together, sir? That, because we cannot submit to the edicts of the belligerents, we will therefore open a free trade with them? The first part of the proposition is true, no man has denied it; the addition which I have made to it then, is the discordant part, and proves the embargo is not submission. I wish to know of gentlemen, whether trading with the belligerents, under their present restrictions on commerce, would not be submission? Certainly, sir. Is then a refraining from so doing, submission? In a word, is resistance submission? Was the embargo principle considered submission in the days of the stamp act? Did the nation call it submission when it was enacted under General Washington? Was it so considered by the Republicans, when resorted to for redress against the primary violations in 1793? Or was it ever contended that had not the embargo been raised, the terms of Jay's treaty would have been worse? Do gentlemen of the "old school" undertake to say that the Father of their country submitted then to George III.? I hope not, sir. If the embargo was not submission under George Washington, it is not under Thomas Jefferson. Again, I ask, were the principles of the embargo submission in 1774-'5-'6? But it has been replied, it is not meet that the remedies of that day should be applied to the present case. Why not, sir? The disease was the same; and lest gentlemen have forgotten what it was, I will tell them how the old Congress described it: "You exercised unbounded sovereignty over the sea, you named the ports and nations to which alone our merchandise should be carried, and with whom alone we should trade." Draw the parallel, sir, and if the remedy of that period will not suit the present crisis, let us look out for others. I will not stop here; I am willing to go further; I would carry fire and sword into the enemy's quarters; but I would first exhaust every means to preserve peace. You will excuse me, sir, for giving an opinion in this place, which, perhaps, some gentlemen may think does not result from the subject immediately before us. I will tell you what description of people in the United States are most anxious that the embargo should not be repealed. It is a new sect, sir, sprung up among us--ultra-federalists. They are the persons, in my belief, who are most desirous the embargo should be continued. They see that upon its removal a war with Great Britain follows. An alliance with her is the object nearest their hearts--not a resistance of the wrongs and insults practised by her. If this embargo be submission, if non-intercourse be submission, if a prompt preparation for war be submission, I ask them what is it to sit still and do nothing? Do you mean to submit? Come out and tell the nation whether you will or will not resist the Orders in Council--let us know it--it is desirable that we should know it--it will conduce to the public weal. I, for one, sir, will vote to continue the embargo, because I do still consider it a coercive measure--as the most deadly weapon we can use against Great Britain. I am induced to consider it so, when I take a view of what is the nature of our products--what is the nature of her exports and imports--what is the nature of her wants, and what her capacity and means of supply. Look at the West Indies, where the embargo has a decided ascendency over every other measure you can adopt. You will find that her colonial and navigation system has, in that quarter, never been maintained since the Revolution. Perhaps I ought, in presuming to speak further about the West Indies, to apologize to the gentleman from Maryland, (Mr. KEY,) not indeed for his very courtly conduct, because if a man is ignorant, he does not like to be told of it. The gentleman will be pleased to pardon me, if I blunder on in my ignorant way, and talk a little more of that part of the world. [Mr. KEY explained that he had not intended any reference to the gentleman from South Carolina in his remarks.] I am extremely obliged to the gentleman for his explanation. Entertaining great respect for his talents, I am happy to find, upon such authority, the charge is neither applicable nor intended. The colonial system has been always regarded as essential to all the vital interests of Great Britain. Every relaxation of that system has excited murmurs and great discontent in the mother country, and yet they have been constantly produced by the wants of the colonies. Would they have been permitted in favor of the United States, could those wants be supplied from any other quarter? I must contend, then, that their profitable existence depends upon an intercourse with the United States, notwithstanding every thing which has been said to the contrary. I do not mean to involve the idea of absolute starvation; much less to insinuate that the embargo is so coercive as to humble Great Britain at our feet; far from it--but I do say, from the nature of their products, their profitable existence depends upon us. There are not contained within the whole British empire at this time, whatever they may have been previous to the American Revolution, supplies for the home and colonial consumption. Will gentlemen tell us from whence they are to procure the principal articles of provisions and lumber? I might rest the argument in safety on these articles alone; these are essential, and of our produce. All the evasions of the embargo have been made with a view to that supply; enforce it, and from whence will they procure the article of lumber? It bears a higher price and is more scarce in Great Britain, even in ordinary times, than in the West Indies. The opinion that Nova Scotia and Canada were adequate to that supply, has been long since abandoned. The articles of their produce require a constant supply of our materials, some of them cannot be procured from any other part of the world; of the lumber received, we have heretofore furnished ninety-nine parts out of one hundred. But we are told they can raise corn. Who denies it? I will grant to gentlemen all they ask on that point, and add, too, that their corn is actually more valuable per bushel than that of this country; but when their labor and industry is directed to that object, what becomes of their cotton, sugar, and coffee cultivation? What becomes of the immense revenues derived from those sources? Gentlemen must not forget that at least one-third of her revenue accruing from commerce, is derived from the West India trade alone. I do not know that I should be wrong, if I were to say from coffee and sugar only. If you drive them to the cultivation of corn for subsistence, they must necessarily abandon the cultivation of their most valuable staples. And do gentlemen believe Great Britain is willing to sacrifice all these considerations to a refusal to do you justice? We do not require justice, for all we ask of her is to abstain from plundering us. We say to her "hands off;" we wish not to come into collision with you; let us alone. These sacrifices will not be much longer hazarded, unless indeed she is deluded into a belief that she has sufficient influence, in this country, to excite disaffection and insurrection, and thereby remove the cause of pressure. Another objection with me to removing the embargo is, it will betray a timid, wavering, indecisive policy. If you will study the sentiments contained in Mr. Canning's note, you will find they afford a lesson of instruction which you ought to learn and practise upon: "To this universal combination His Majesty has opposed a temperate, but a determined retaliation upon the enemy; trusting that a firm resistance would defeat their project; but knowing that the smallest concession would infallibly encourage a perseverance in it." I beg the House to draw instruction from this otherwise detestable paper--it preaches a doctrine to which I hope we shall become proselytes. A steady perseverance in our measures will assist us almost as much as the strength of them. I conceive the supplies necessary for the maintenance of the war with Spain and Portugal will fairly come into the calculation. It has become the duty and interest of Great Britain to maintain the cause of Spain and Portugal--she has made it so. Where will those supplies be drawn from? Does she produce them at home? Certainly not; for it cannot be forgotten that the average importation of flour alone at Liverpool is ninety thousand barrels annually. The Baltic is closed against her. The demand must be great; for Spain and Portugal in times of peace have regularly imported grain for their own consumption. And here I will observe, there is no attribute in my nature which induces me to take sides with those who contend for a choice of masters. So far as they are fighting for the right of self-government, God send them speed; but at this peculiar crisis I think it extremely important that our sympathies should not be enlisted on the side of either of the contending parties. I would, therefore, from Spain and Portugal withhold our supplies, because through them we coerce Great Britain. But that pressure which Great Britain feels most, is most alive to, is at home. The last crop is short, and injured in harvesting; wheat is fourteen shillings the bushel, and rising. Her millions of poor must be supplied with bread, and what has become almost equally important, she must furnish employment for her laborers and manufacturers. Where can the necessary supply of cotton be procured? For, thank God! while we are making a sacrifice of that article, it goes to the injury of Great Britain who oppresses us, and whose present importation is not equal to one-half her ordinary consumption. If the manufacturer is to be thrown out of employ, till that raw material which is now the hypothesis of the day, is produced from Africa, the ministry who are the cause of it will not long rule the destinies of that nation. No, sir, I am not alarmed about supplies of cotton from Africa. Nor am I to be frightened out of the embargo by a fear of being supplanted in the market, from that quarter; they must be but little read indeed in political economy, who can dread a competition with barbarians, in the cultivation of the earth. Another strong inducement with this House to continue and enforce the embargo is, that while it presses those who injure us, it preserves the nation in peace. I see no other honorable course in which peace can be maintained. Take whatever other project has been hinted at, and war inevitably results. While we can procrastinate the miseries of war, I am for procrastinating; we thereby gain the additional advantage of waiting the events in Europe. The true interests of this country can be found only in peace. Among many other important considerations, remember, that moment you go to war, you may bid adieu to every prospect of discharging the national debt. The present war of all others should be avoided; being without an object, no man can conjecture its termination; for as was most correctly observed by my friend, (Mr. MACON,) the belligerents fight everybody but one another. Every object for which the war was originally begun and continued to 1806, has since that time become extinct. The rupture in the negotiations of that day was made not on points affecting directly the British interest, but grew out of the indirect concern she felt in maintaining those urged by Russia, which Power, having since declared war against Great Britain, has obliterated the then only existing object of the war. Embark in it when you please, it will not procure you indemnity for the past; and your security for the future must ultimately depend on the same promises, which you can obtain by peaceable means. I have no disposition, sir, to hazard the interest of my country in a conflict so undefined, so interminable! But, say gentlemen, it is certainly not submission to trade to those ports which the edicts of the belligerents have not prohibited us from trading with. Granted--I will not enter into a calculation on the subject, as to how much importance the trade would be of to us. The chairman of the Committee of Ways and Means has told you it would be contemptible in amount; but, sir, I say this, because I consider it expedient to continue the embargo, to withhold our supplies from those who need them, I will not permit you to go to those countries. Repeal the embargo in part! No, sir. Give merchants one single spot anywhere out of the jurisdiction of your own country, as large as the square of this House, and they would carry away the whole of our surplus produce. Give them a little island on which to place the fulcrum of their lever, and Archimedes-like, they will move your whole trade. Let them go to Demarara, to Gottenburg, or any other burg, and it is to the whole world. But the trade to Spain and Portugal has been held up as highly profitable to the merchants of the United States. The gentlemen who venture this opinion have not, perhaps, considered the subject with all the attention it is entitled to. It appears to me to be demonstrable from the documents, and the knowledge of circumstances which we possess, that Great Britain, with the extension of plunder the Orders in Council warranted, is not satisfied. She was not content that she had laid a snare whereby she intercepted our whole commerce to Europe. She then permitted us (no doubt from extreme moderation) to trade with the French colonies, taking care, at the same time, to force a direction of that trade in a channel which could not fail to yield a tributary supply to her exchequer. She has now interdicted, by orders secretly issued, that commerce also. The language of Cochrane's proclamation cannot be misunderstood. What a harvest he would have reaped from the robbery of your merchantmen, had the embargo been raised, as was expected by the British Cabinet, at the commencement of the session. The Orders in Council would have taken all your property going to continental Europe, and those of the Admiralty would have swept the West India traders. I believe the idea of enjoying a free trade to Spain and Portugal is altogether illusory. Mr. Canning has told us, not _in totidem verbis_, but certainly in effect, that we should be permitted to trade with those countries, only under the Orders in Council. In answer to the proposition made by Mr. Pinkney to suspend the embargo as to Great Britain, for a suspension of the Orders in Council as to the United States, the British Minister replied in the most peremptory manner possible. Here let me observe, that had that suspension been agreed to, the embargo would have co-operated with the Orders in Council against France. It would have been even much more efficacious than those orders, inasmuch as our own regulations would have interdicted all commerce with France. The professed object of the Orders in Council, retaliation on the enemy, cannot therefore be real--they originated, as they have been executed, in a spirit of deadly hostility against us. That the operation of those orders would be extended to Spain and Portugal, should the embargo be repealed in part, I infer from this positive assertion of the British Secretary: "It is not improbable, indeed, that some alterations may be made in the Orders in Council, as they are at present framed; alterations calculated not to abate their spirit or impair their principle, but to adapt them more exactly to the different state of things which has fortunately grown up in Europe, and to combine all practicable relief to neutrals with a more severe pressure upon the enemy." Here is not only a denial of suspension, but a threat that alterations will be made, (no doubt in tender mercy to us,) not to abate their spirit, but to adapt their operation more extensively to our ruin. What is the state of things alluded to? Let every gentleman who seeks after truth, candidly inquire for himself, what is the state of things which Mr. Canning considers has so fortunately grown up in Europe. Can it be any thing but the revolutions in Spain and Portugal? If the Orders in Council are not to be impaired, but their operation rendered more applicable to the present state of things, _a fortiori_, you are to be cut off from the South of Europe, in the same manner as you are from France and her dependencies. And are you ready to repeal the embargo under such a threat as this? This note, sir, is sarcastic to the last degree; in it I read insult added to the atrocious injuries my country has received; there is but one part of it which can be looked at with patience, and that is the valuable admonition I have read. Some gentlemen have gone into a discussion of the propriety of encouraging manufactures in this country. I heard with regret the observations of the gentleman from Virginia on this subject. I will be excused by him for offering my protest against those sentiments. I am for no high protecting duties in favor of any description of men in this country. Extending to him the equal protection of the law, I am for keeping the manufacturer on the same footing with the agriculturist. Under such a system, they will increase precisely in that proportion which will essentially advance the public good. So far as your revenue system has protected the interests of your merchants, I am sincerely rejoiced; but I can consent to no additional imposition of duty, by way of bounty to one description of persons, at the expense of another, equally meritorious. I deplore most sincerely the situation into which the unprecedented state of the world has thrown the merchant. A gentleman from Massachusetts has said, they feel all the sensibility for the mercantile interest, which we feel for a certain species of property in the Southern States. This appeal is understood, and I well remember, that some of their representatives were among the first who felt for our distressing situation, while discussing the bill to prohibit the importation of slaves. I feel all the sympathy for that interest now, which was felt for us then; but I ask if it is not sound policy to encourage the patriotism of our merchants to support still longer the sacrifices, which the public exigencies call for, with spirit and resolution? If they should suffer most from our present situation, it is for their immediate advantage that we are contending. I must be allowed in continuation to say, that, although I do not profess to be one of the exclusive protectors of commerce, I am as willing to defend certain rights of the merchant, as the rights of the planter. Thus far I will go; I will assist in directing the physical strength of the nation to the protection of that commerce which properly grows out of the produce of the soil; but no further. Nor am I therefore disposed to limit the scene of his enterprise. Go up to Mocha, through the Dardanelles, into the South seas. Search for gums, skins, and gold, where and when you please; but take care, it shall be at your own risk. If you get into broils and quarrels, do not call upon me, to leave my plough in the field, where I am toiling for the bread my children must eat, or starve, to fight your battles. It has been generally circulated throughout the Eastern States, in extracts of letters, said to be from members of Congress, (and which I am certainly sorry for, because it has excited jealousies, which I wish to see allayed,) that the Southern States are inimical to commerce. So far as South Carolina is concerned in the general implication, I do pronounce this a gross slander, an abominable falsehood, be the authors who they may. The State of South Carolina is now making a most magnanimous sacrifice for commercial rights. Will gentlemen be surprised when I tell them, South Carolina is interested, by the suspension of our trade, in the article of cotton alone, to an amount greater than the whole revenue of the United States? We do make a sacrifice, sir; I wish it could be consummated. I should rejoice to see this day all our surplus cotton, rice, flour and tobacco burnt. Much better would it be to destroy it ourselves, than to pay a tribute on it to any foreign power. Such a national offering, caused by the cupidity and oppression of Great Britain, would convince her she could not humble the spirit of freemen. From the nature of her products, the people of South Carolina can have no interest unconnected and at variance with commerce. They feel for the pressure on Boston, as much as for that on Charleston, and they have given proofs of that feeling. Upon a mere calculation of dollars and cents--I do from my soul abhor such a calculation where national rights are concerned--if South Carolina could thus stoop to calculate, she would see that she has no interest in this question--upon a calculation of dollars and cents, which, I repeat, I protest against, it is perfectly immaterial to her whether her cotton, rice, and tobacco, go to Europe in English or American vessels. No, sir, she spurned a system which would export her produce at the expense of the American merchant, who ought to be her carrier. When a motion was made last winter for that kind of embargo which the gentleman from Maryland (Mr. KEY) was in favor of; for he says he gave his advice to do that very thing, which if adopted would cut up the navigation interest most completely, (an embargo on our ships and vessels only;) South Carolina could have put money in her pocket, (another favorite idea with the gentleman,) by selling her produce to foreigners at enormous prices; her representatives here unanimously voted against the proposition; and her Legislature, with a magnanimity I wish to see imitated throughout the United States, applauded that vote--they too said they would unanimously support the embargo, at the expense of their lives and fortunes. She did not want an embargo on our ships, and not on produce. No, sir; she knows we are linked together by one common chain--break it where you will, it dissolves the tie of union. She feels, sir, a stroke inflicted on Massachusetts, with the same spirit of resistance that she would one on Georgia. The Legislature, the representatives of a people with whom the love of country is indigenous, told you unanimously, that they would support the measures of the General Government. Thank God, that I am the Representative of such a State, and that its representatives would not accept of a commerce, even at the advice of a gentleman from Maryland, which would profit themselves at the expense of their Eastern brethren. Feeling these sentiments, I cannot but say, in contradiction to what fell from the gentleman from Virginia, (Mr. GHOLSON,) I should deplore that state of things which offers to the merchant the lamentable alternative, beggary or the plough. I would say to the merchant, in the sincerity of my heart, bear this pressure with manly fortitude; if the embargo fails of expected benefit, we will avenge your cause. I do say so, and believe the nation will maintain the assertion. It is with reluctance I feel compelled, before I resume my seat, to make a few observations in reply to what fell from the gentleman from Maryland (Mr. KEY) yesterday. The gentleman commenced his address by contradicting the statements made by a gentleman from Massachusetts, and my worthy friends from Virginia and Georgia, (Messrs. RANDOLPH and TROUP.) He told you their districts could not feel the embargo most, as it was in his the sufferings were most severe. I shall not waste the time of the House by an inquiry into the truth of this assertion; nor, sir, will I enter into a competition of this sort. I aim at a distinction far more glorious. The State I represent in part, bears the embargo the best. This it is my pride to boast of. There, sir, there are no murmurs, no discontent at the exertions of Government to preserve the rights of the nation. And as long as respect for the honor, and a hope of the salvation of the country exists, so long will they bear it, press as hard as it may. The gentleman told you, in speaking of the Maryland elections, that the film is removed from the eyes of the people, and that in discerning their true interests, they saw it was the embargo, and not the Orders in Council, which oppresses them. He must feel confident indeed in the knowledge that he is two years in advance of his constituents, or he would not have ventured such an assertion. [Mr. KEY explained that he had said the film was removed, and the people saw that their distress arose more from the embargo than from the Orders in Council.] Mr. WILLIAMS continued: I have no intention to misrepresent the gentleman, but I understood him to say that the Orders in Council did not affect the continental market, but the Berlin decree; that the embargo caused all the pressure at home; that the Orders in Council had no part in producing that measure, and therefore I infer as his opinion, that the Orders in Council have not injured us. [Mr. KEY said that the few observations which he had made on this subject, were in reply to the gentleman from Tennessee, (Mr. G. W. CAMPBELL,) that the people should be no longer deluded. In answer to this Mr. K. said he had observed that the people were not deluded--that the film was removed from their eyes, and that he then had gone on to show that the depression of produce arose from the embargo. But that he never had meant to say that the Berlin decree and Orders in Council were not injurious, because they lopped off a large portion of our commerce.] I understood the gentleman to say (observed Mr. W.) that it was very strange we would not trust our merchants upon the subject of the embargo, who were the best judges. I wish to represent the gentleman's sentiments correctly, and shall not consider him impolite, if I have misstated him, should he again stop me. Why, sir, is it strange? Are the merchants the guardians of the public honor? This I conceive to be the peculiar province of Congress, because to it alone has the constitution confided the power to declare war. Will the gentleman trust the merchants with the guardianship of his own honor? No, sir, he chooses to protect it himself. And would he advise the nation to pursue a course disgraceful, and to which he would not expose himself? I will not trust the merchants in this case, nor any other class of men; not being responsible for the national character, they will trade anywhere, without regard to principle. So true is this, Dessalines felt no uneasiness when informed of the law prohibiting all intercourse with St. Domingo; he replied, "hang up a bag of coffee in hell, and the American merchant will go after it." I am not sure that, in the evasions of the embargo, some of them have not already approached near its verge: certain I am, that, in a fair commerce, such is the enterprise and perseverance of their character, they will drive their trade as far as it can be driven. No, sir, I will not trust the merchant now, because he would do the very thing which the gentleman seems to wish, trade under the Orders in Council. The embargo should be removed, because, says the gentleman, it has operated as a bounty to the British trade. I should be disposed to doubt this, if for no other reason than a knowledge of who advocates its removal. Before the embargo was laid, agricultural labor in the British West India islands, particularly on sugar estates, could scarcely support itself. I refer the gentleman to the documents printed by order of Parliament, and the memorials of the agent of Jamaica. He will find that the planters are in a distressed situation, not from their failure in the cultivation of the soil, but from the enormous duties on their produce in the mother country. Are the extravagant prices of articles of the first necessity, superadded to their former embarrassments, to operate as a bounty on their trade? I should be extremely gratified if the gentleman will inform us what would have been the amount of bounty on the trade, if evasions of the embargo had not taken place. If the price of flour has been sixty dollars per barrel, and other articles in proportion, what would have been the price had there been no evasions of the law? They could not have been procured at all: and yet we are told the embargo is a bounty on British trade! When the gentleman was, I had like to have said, justifying the Orders in Council, he should have favored us with a vindication of the _smuggling_ proclamation also. Such a degree of corruption and of immorality never before, in any one paper, disgraced a civilized nation. The citizens of a country, at peace and in amity, enticed to evade their own laws! Is such an act calculated to induce the belief that the embargo operates as a bounty on British trade? I shall not enter upon another question stirred by the gentleman, the constitutionality of the embargo law; the subject has become so stale, that even he could scarcely make it interesting. It has been laid asleep--a solemn adjudication has taken place and put it at rest. But the gentleman will excuse me for observing he made a most unfortunate allusion in the course of his argument. He said it was strange that, not having the power delegated to us to tax exports, we should undertake to prohibit them. The Orders in Council, which if the gentleman did not justify, he was certainly very tender of, do exercise that very power of taxing our exports, which by the constitution we are prohibited, and that too when they are destined to a government equally sovereign and independent with that of Great Britain. We have been referred by the gentleman to the history of the Revolution, and after a kind of encomium on the resources of Great Britain, the triumphs of her navy and her present imperious attitude, he demanded to know if we can expect she will yield to us now, when during the Revolution she maintained a war against the whole world, at the same time that she kept us at bay seven years and succeeded with every nation but her own sons--will she truckle at our feet now? The gentleman knows we do not seek to make her truckle at our feet; we wish her no injury; we ask of her no boon whatever; we only entreat her to let us alone; to abstain from wanton, unprovoked acts of oppression. What is the object of this language? Is it to tell us she never will redress our wrongs; or is it to divert us from a prosecution of our rights? The contest was very different with her at that time from what it is now. She then contended against the dismemberment of her Empire. Will the gentleman say she values the principles of the Orders in Council, as she did the sovereignty of her colonies? What will the gentleman discover, by examining the history of the period he referred to? England, at that time, when France, Spain, Holland, and the United States, were opposed to her, when the armed neutrality in the north of Europe assailed her, when all these brought the principle of embargo to bear upon her, was nearer ruin than she ever was before or since. I refer him to Playfair's tables for the year 1781; there he will find the very principle proven, for which we are now contending. Does Great Britain now prize the plunder of your merchantmen, the impressment of your seamen, insult to your national flag, as much as she did the sovereignty of the soil? Certainly not; and yet she must, precisely the same, or she will not hold out now as she did then. When I recollect that her necessary annual expenditure is greater than the gross rent of all the landed property in her kingdom; that the armed neutrality affected her so materially, that the same principle is brought into operation again; that by withholding our custom, our supplies, our raw materials, we must necessarily destroy a large portion of her revenue, I cannot but hope she will see her own interest in redressing our injuries. This is all we contend for, allow the experiment to be made; if not, at least propose some better remedy. But said the gentleman, at the close of the Revolutionary war we alone triumphed over the arms of Great Britain; defeat befell all the rest of the world. I will not contest that point with him, as he is old enough to speak from experience. We were informed by the gentleman, that it was the Berlin decree, and not the Orders in Council, had destroyed our trade to the Continent of Europe. Here too we are directly at points. The gentleman has not made himself master of his case, or has totally mistaken his evidence. I hold a document in my hand which, perhaps, the gentleman may object to, as coming from the opposition party in Great Britain; it is the depositions of sundry merchants of great wealth and respectability, taken before the British House of Lords, on the subject of the Orders in Council. Here Mr. W. read from the depositions the following questions and answers: "If the American embargo were removed, and the Orders in Council still continued in force, in that case would the witness resume his shipments? "To a very small amount. "For what reason? "Because I do conceive, that there would be such great impediments, indeed a total annihilation of trade from the United States of America to the Continent of Europe, that I could not expect to receive any returns for the goods I sent out; and another reason would be my apprehension that a war between the United States and this country would be the consequence of those Orders in Council. "What is the reason that the Orders in Council prevent the witness sending our cotton goods in ships in ballast? "I believe I stated my apprehension that they might produce a war between the two countries; another reason was, I could not expect to get remittances, and a total annihilation of the trade between the United States of America and the Continent of Europe, from whence a great part of my remittances must be derived. "If the American embargo in general were taken off, and the Orders in Council to be continued, would his trade in that case revive? "I certainly should feel no inducement to export goods to America while the orders continued. "Why not? "I should apprehend that hostilities between this country and America would be the consequence of continuing the Orders in Council. "Would the Orders in Council have any other effect as to discouraging the trade? "They would have considerable effect in regard to our remittances. "In what manner? "By bringing all the produce of America to this country, they must occasion such a vast glut in the market, that the produce would be worth little or nothing. "In what degree would it affect the dealers in those commodities brought to this country, as to their remittances to this country? "The consequence I apprehend would be, that great parts of the bills must go back protested; because the produce, for which the bills are drawn, would sell for scarcely the value of the freight and charges. "Does the witness conceive, from his knowledge of the American trade, that if the whole of the American produce, which according to an average of years had been carried to the Continent of Europe, and to Great Britain, was now to be imported into Great Britain alone, and the Orders in Council to continue; whether it would be possible to export from Great Britain to the continent, so much of the American produce as should prevent a glut of the American produce remaining in the market? "I think it would be impossible. "Have you lately written to your correspondents in America respecting shipments of American produce to this country? "I have. "To what effect have you so written? "I have written that in case of submission to these Orders of Council, in case such a thing should take place, to suspend all operations. "Did you give this advice to your American correspondents, upon the supposition that America would acquiesce in the Orders in Council? "Certainly not, I stated it as a thing by no means likely; but, as there is nothing impossible in this world, that if it were so, not to move; that in case they were acquiesced in, not to attempt any business." Considering (continued Mr. W.) these are the sentiments (delivered under the sacred obligation of an oath) of that very description of men who the gentleman believes are the best judges and ought to be trusted, I am warranted in saying, they prove his position wholly unfounded. The gentleman's project last year was to lay the embargo on our ships and vessels, and to dispose of our produce, the effect of which would have been destruction to our own vessels, constant encouragement to those of Great Britain. I beg him to remember, that if two or three years hence, he should not stand as high with the American merchants as he could wish, it may be fairly attributed to this friendly protection of their immediate interests, which he would have extended to them. The gentleman was equally unfortunate in saying, the destruction of St. Domingo had caused such a demand for sugar, that the cultivation of cotton in the British West India islands had been abandoned; he is not well versed on the subject, the fact not being as he has stated it. However great an impetus the destruction of St. Domingo may have given to the cultivation of sugar and coffee, in the British West Indies, it certainly had no effect in any way on that of cotton, the quantity of that article formerly exported from thence being too small to have any influence whatever. Our cotton will never be supplanted from that quarter. Could the sugar estates be converted to cotton plantations, so depressed has been their situation, that conversion would have been long since effected. Nor, sir, is it true that the cultivation of cotton in the British West India islands has been abandoned; on the contrary, it has been regular though slow in its increase, compared with that of coffee. Crops of that kind are frequently precarious, owing to a natural enemy of the plant in those islands, and therefore the cultivation has not kept pace with the demand. I heard the gentleman with pain and mortification, I repeat it, with pain and mortification I heard him declare that nations like individuals should pocket their honor for money. The act is base in an individual, in a nation infinitely worse. The gentleman was corrected by his colleague (Mr. NELSON) on this subject. He evidently, to my apprehension, expressed an opinion, that money was to be preferred to honor. He told us that honor in arbitrary governments was identified with the monarch, who went to war for his mistress; that in republics honor consisted in the opportunities afforded to acquire wealth, and by way of illustration said, we pocketed our honor for money in paying tribute to the Barbary Powers, for the security of a paltry trade. Does the gentleman mean to assimilate a tribute exacted by Great Britain with that paid to Algiers? Or does he mean to be understood as advising us, because we purchase peace with barbarians, involving no honorable consideration, to barter for a pecuniary reward, with Great Britain, our rights, our honor, and our independence? Detestable as this inference is, it results from his arguments. Repeal the embargo, throw open your trade to Great Britain; you can put money in your pocket by it. I want no substitute. Sir, if my tongue was in the thunder's mouth, then with a passion would I shake the world and cry out treason! This abandonment of our rights, this sacrifice of our independence, I most solemnly abjure. Astonished indeed am I, that a gentleman so eloquent, so well qualified to uphold the honor and dignity of his country, should so abandon them! Is it possible such doctrine should be advocated on the floor of Congress? Has it come to this? Was it for this the martyrs of the Revolution died? Is this great continent and the free millions who inhabit it, again to become appendages of the British Crown? Shall it again be held, in its orbit by the attractive, the corruptive influence of the petty island of Great Britain? No. Sooner may you expect the sun with all the planetary system will rush from their shining spheres, to gravitate round a pebble. Remember, sir, it is no longer a contest singly about the carrying trade, or the impressment of seamen, or the insult to the national flag, but all united with the rights and attributes of sovereignty, even to the violation of the good old United States. You stand on the verge of destruction, one step, one movement backwards will stamp your character with indelible disgrace. You must now determine whether you will maintain the high station among nations, to which the virtues, the spirit of the people have elevated you, or sink into tributary vassalage and colonization. By all your rights, your duties, your awful responsibility, I charge you "choose ye this day whom ye will serve; but as for me and my house, we will serve the Lord." Mr. CULPEPER spoke in opposition to the report. Mr. COOK moved to adjourn. Mr. J. G. JACKSON called for the yeas and nays on the motion; but a sufficient number did not rise to justify the taking them. Motion to adjourn negatived. Mr. COOK renewed the motion, observing that he had some remarks to make, which might occupy the House some time.--Carried, 54 to 50, and the House adjourned. SATURDAY, December 10. Mr. LEWIS, from the Committee for the District of Columbia, presented a bill supplementary to the act, entitled "An Act for the establishment of a Turnpike Company in the county of Alexandria, in the District of Columbia;" which was read twice, and committed to a Committee of the Whole on Monday next. The bill sent from the Senate, entitled "An act further to amend the judicial system of the United States," was read twice, and committed to Mr. MARION, Mr. HOLLAND, and Mr. KELLY, to consider and report thereon to the House. Mr. NELSON, from the committee appointed the eleventh ultimo, on so much of the Message from the President of the United States as relates to the Military and Naval Establishments, presented a bill authorizing the appointment and employment of an additional number of navy officers, seamen and marines; which was read twice, and committed to a Committee of the Whole on Monday next. _Foreign Relations._ The House again proceeded to the consideration of the first resolution of the report made by the Committee of Foreign Relations. Mr. COOK addressed the House at considerable length. Mr. R. JACKSON said: Mr. Speaker, not having been in the habit of public speaking, it is with great diffidence I rise, to make any observations on the resolutions now under consideration, after so much has been said upon the subject. But, sir, knowing the deep stake that the portion of citizens which I have the honor to represent, and the United States at large, have in the present embarrassed state of our political affairs, was I to remain silent, sir, I should feel as if I was guilty of treachery to their interests. I shall not attempt to follow gentlemen in their arguments who have gone before me in the debate, but confine myself to making such observations on the resolutions and the state of our political affairs, as appear to me to be necessary and proper. By the first resolution we are called upon to declare "that the United States cannot, without a sacrifice of their rights, honor and independence, submit to the late edicts of Great Britain and France." Why we are called upon to make this declaration, I cannot conceive. I do not see the use of it, unless it is considered by the committee as a kind of test act, which they think ought to be administered to every member of the House to ascertain whether they are of sound principles or not. I do not like such abstract propositions; I think them useless, as nothing can come from them in a legislative way; no bill can be formed from it; however, I do not see anything at present to prevent me from voting for it. By the second resolution we are called upon to declare "that it is expedient to prohibit, by law, the admission into the ports and harbors of the United States of all public or private armed or unarmed ships or vessels belonging to Great Britain or France, or to any other of the belligerents having in force orders or decrees violating the lawful commerce and neutral rights of the United States; and also the importation of any goods, wares, or merchandise, the growth, produce, or manufacture of the dominions of any of the said powers, or imported from any place in the possession of either." Here, sir, I shall take the liberty to dissent from the committee, for I do not think it to be expedient to join them in such a resolution as this. For I would ask, what are we to promise to ourselves from such a system as this; what will be the probable effects of it? Will it compel the great belligerent Powers to do us justice for past injuries and secure us for the future? If I thought it would, I would most cheerfully vote for it. But, sir, I have no reason to suppose it will, for we have now had considerable experimental knowledge of the effects of the embargo system, both as it respects ourselves and foreign powers, and we have found from experience, that, as a coercive measure, it has had no effect. It has not compelled France or England to do us justice, or to rescind their unlawful edicts and decrees, issued against neutral commerce. And those nations having now experienced the effects of the embargo for nearly one year, whatever alarm it might have given them, when first laid on, that alarm has ceased. And we have it from high authority, that France cares nothing about it, and that in England, owing to the great events now passing in Europe, it is forgotten. And shall we still, with all this information and experience, adhere to this system, and still think we can legislate France and England into a comitance to do us justice, and bring them to the bar of justice in this way? Far be it from me to censure any one for the part they have taken in endeavoring to maintain the rights of our country, and giving security to the interest of our citizens. But, sir, I think, in the business of legislation, that the same line of conduct ought to be pursued, that we would pursue in the common and ordinary proceedings of life; for should any of us undertake to do any thing, suppose it be to get a vessel afloat that had been stranded, and the means employed were totally inadequate to its accomplishment, should we not abandon those means and try some other? We have tried the embargo, and found it altogether ineffectual, and we have no reason to suppose, that by a further continuance of it, it will answer any of the purposes for which it was intended. I will now take some view, as it appears to me, of what has been, and will be the effect of the embargo, if continued, as it respects ourselves. The burden of it has already been very great, on a large proportion of our citizens. It has been grievous, and very sore. For how otherwise can it be, when we consider that all the navigation business, from one end to the other of these United States, is totally stopped, excepting a small remnant of our coasting trade, and that remnant under very great embarrassments; and all that numerous class of our citizens, dependent on commerce, deprived of their usual means of gaining a livelihood, and in consequence thereof thousands of them have been obliged to live on their former earnings, and consume that little property they had treasured up for their future support? And if the embargo is continued, the inevitable consequence must be, bankruptcy to many of our merchants, and absolute distress, misery, and want, to a large proportion of our citizens who live in the seaport towns, and great embarrassments to all classes of citizens throughout our country. And if this system is continued, we must incur the hazard of having civil commotions in our country, for experience has proved, that when great distress prevails among the people, and that distress arises from political measures, which the people are divided in sentiment upon, the hazard is very great that civil commotions will take place. Some gentlemen have undertaken to show how much we have already lost by the embargo. But I shall not go into any calculation of this sort, for I am convinced that it defies calculation; it is impossible to follow it into all its turnings and windings. It is enough for me to know that the loss is immense, and that we have received such a shock by it, that it will require a long time to come, to recover from it. Gentlemen have also endeavored to point out such parts of the Union as they think are suffering the most by the embargo. There is no doubt but that it does bear harder upon some portions than on others, and that it is unequal in its operation. But, sir, my idea is, that it bears the hardest upon that part of our citizens where they are the most dependent on commerce for their living; and this being the case, in nearly as great a degree, perhaps, with the citizens of Rhode Island as in any part of the Union, it follows that my constituents are suffering as much as any portion of the United States. But, sir, its pressure is upon the whole country, and it carries misery throughout our land; and if continued, the distress occasioned by it must still be much greater than it has been, and will become intolerable in some parts of the Union, and the consequences may be dreadful to the nation. And as to its effects on France or England, for myself, I am of opinion, that the Emperor of France and King of Italy is well pleased with it, for, as it is observed by Mr. Canning, "it certainly comes in aid" of his grand design of destroying the commerce of the English, and trying to give that nation the consumption of the purse; and, until he is satisfied with that speculation, he will wish us to keep on the embargo. And since Spain and Portugal have refused any longer to be under the control of Bonaparte, and have bid him and all his hosts defiance, and have connected themselves with the English, I believe the English care nothing about the embargo, but would give us their free leave to keep it on forever; for, sir, it gives the greatest activity to their colonies of Canada and Nova Scotia, and must be the means of increasing their settlements with astonishing rapidity. Experience has already proved to them, that their colonies in the West Indies can be maintained without us, and Spain and Portugal and their colonies having become open to them, to vend their manufactures, and with what can be smuggled into the continent and into our country, in spite of all the laws that can be made against it, will furnish them market enough; and our navigation being all laid up, and out of the way, their ships will obtain great freights from Spain and Portugal to the colonies, and from the colonies back to the mother country; and in consequence of our retiring into a state of dignified retirement, as it has been called, they will have nearly the whole trade of the world in their own hands. And it appears to me, sir, in every point of view that I can place the subject, if we continue the embargo, it will operate to distress ourselves a hundred times more than it will anybody else. I will now, as I have heard the call so frequently made, that, if you do not like this system, point out a better, and if it appears so, we will adopt it--I will, therefore, point out what appears to me a better line of conduct for the United States to pursue, and if I am so unfortunate as not to find a man in this House of my opinion, I cannot help it, for I feel myself constrained, from a sense of duty to my suffering constituents, to inform this House and the nation, that I wash my hands of it, and protest against it. I therefore, sir, with great deference to superior abilities, propose that the law imposing an embargo on all ships and vessels of the United States, and all the laws supplementary thereto, be immediately repealed, and that we authorize our merchants to arm their vessels, under proper regulations, in defence of our legitimate and lawful commerce; that the Government from time to time afford the commerce of the country such protection as may be found necessary and prudent. If this was done, I have no doubt but that the citizens of the United States would soon be relieved from their present embarrassments and distress. This, sir, would produce a circulation in the body politic, our planters and farmers would immediately find a sale for their surplus produce, our merchants would find employ for their vessels, and all that numerous class of citizens who have heretofore been engaged in the active and busy scenes of commerce, would again find employ in our seaports. In lieu of beholding dismantled ships covered with boards and mats, we should see in them spars and rigging aloft, and the ports whitened with their sails, and again hear the cheering sound of industry. But it has been said that if the embargo was removed and our merchants should send their vessels to sea, most of the property would be taken by one or other of the great belligerent powers, and thus be lost to our country; and that we have so little trade left that it is not worth our notice. But let us examine this, and see if it be so. Could we not, sir, in the present state of the world, trade to England, Scotland, and Ireland, to Sweden, Spain, and Portugal, to some of the islands in the Mediterranean, and some of the Turkish ports on that sea; to nearly all the ports in the East and West Indies, to both sides of the continent of South America, and some other places, and have the obstruction occasioned by the embargo laws removed from our own coast? Is all this trade of no importance to trading people? Gentlemen have gone into statements to show, from our former trade, how much of our domestic produce could be exported to the different parts of the world, under the present embarrassments, occasioned by the great belligerent powers; but for myself I put no confidence in such statements. I consider trade may in some measure be compared to water; if the channel it has been used to run in becomes obstructed, it will find new channels to vent itself in. For instance, sir, suppose we should adopt the resolution offered by the gentleman from New York (Mr. MUMFORD). He mentioned that we could trade to the little Swedish island of St. Bartholomews, in the West Indies. Now suppose we should look over our former exports to this island in any one year, what should we find the amount to be? I do not know, sir, perhaps one hundred thousand dollars, but double, triple it if you please, and what comparison would it bear with the amount that would be shipped there under his system? Would it not immediately become a distributing point for the whole of the West India Islands, and the amount increased to an astonishing degree, when compared with what used to be exported there? And so it would be in other parts of the world. The articles will go where they are wanted, in a greater or less degree; and if they cannot be carried directly, they will find their way in an indirect manner. And as to the danger of the property being captured and confiscated, I think our merchants and underwriters are the most competent to judge of that. They do not wish the Government to become guardians for them in this respect. All they wish for Government to do is to let them manage their own affairs in their own way; and the Government to afford the commerce of the country as much protection as shall be for the real interest of the whole nation. Have we not seen, in the summer past, with what eagerness the merchants in the United States availed themselves of the special permission granted to fit their vessels in ballast, and go abroad to collect debts? And was not every old and obsolete claim hunted up that existed in the country, to make out the amount necessary to avail themselves of this permission? Is not this proof that the merchants did not consider the risk very great? And were not several hundred sail of vessels fitted out under this permission; and have they not nearly all returned back to the United States in safety? Many of these vessels were insured to the West Indies, out and home, at premiums of about eight and nine per cent., and this in the midst of the hurricane season. This proves that the underwriters did not estimate the political risk at more than two or three per cent., for the natural perils in time of profound peace would be considered equal to six per cent. And the calculation of the underwriters has proved correct, for they have made money by the business. And was our embargo removed, I am of opinion that the premiums of insurance would not be more than six or seven per cent. to any port in Great Britain, and about the same to Spain and Portugal. This, if correct, proves that the political risk is not considered to be very great by those who are the best judges of it. But, sir, it appears to me there are many gentlemen in this House who think it will not do to trade, until all political risk is removed out of the way. If we wait for this, we shall never trade any more, for the natural perils of traversing the ocean always exist, and always remain nearly the same, allowing for the variation of the seasons. And the political perils always exist, but they vary according to the state of political affairs among the nations of the world. But, sir, I have repeatedly heard it said, and the same thing is expressed in the report of the committee, that our situation is such, that we have no other alternative than a war with both Great Britain and France, submission, or a total suspension of our commerce. The committee have, sir, after a long statement, brought our affairs up to this point, and I do not like any of the alternatives out of which they say we must make a choice, for I do not believe that we are reduced to this dilemma; and I will not agree to go to war with both England and France, nor will I agree to submit, or to totally suspend our commerce. But I will agree to give our merchants liberty to arm their vessels, under proper regulations, in defence of our legitimate commerce, and leave it to them to send their vessels for trade where they please; and if any of them are so unwise as to trust their property to France, or to any ports in Europe where the French control, let them fight their way there if they choose. I see no other course, sir, that we can pursue, that will be so much for the interest and honor of our country, as the one pointed out. The American people are a cool, calculating people, and know what is best for their interest, as well if not better than any nation upon earth, and I have no idea that they will support the Government in a ruinous war with England, under the present existing circumstances, nor in measures depriving them of all trade and commerce. Mr. MUMFORD then offered a few observations in answer to the remarks of Mr. GHOLSON of Virginia. During the discussion, six different motions were made for an adjournment, the last of which, offered by Mr. GARDENIER, was carried--yeas 58, nays 48. TUESDAY, December 13. On motion of Mr. THOMAS, _Resolved_, That a committee be appointed to inquire into the expediency of dividing the Indiana Territory; and that they have leave to report by bill or otherwise. _Ordered_, That Mr. THOMAS, Mr. KENAN, Mr. BASSETT, Mr. TAGGART, and Mr. SMILIE, be appointed a committee pursuant to the said resolution. On motion of Mr. THOMAS, the resolutions of the House of Representatives of the Indiana Territory, which were read and ordered to lie on the table on the fourteenth ultimo, were referred to the select committee last appointed. Mr. MARION, from the committee to whom was referred, on the tenth instant, the bill sent from the Senate, entitled "An act further to amend the Judicial System of the United States," reported the bill to the House without amendment: Whereupon the bill was committed to a Committee of the Whole to-morrow. The bill sent from the Senate, entitled "An act for the relief of Andrew Joseph Villard," was read twice and committed to a Committee of the Whole to-morrow. On motion of Mr. ALEXANDER, _Resolved_, That a committee be appointed to inquire whether any, and if any, what farther provision ought to be made by law, prescribing the manner in which the public acts, records, and judicial proceedings of one State, shall be proved and given in evidence in another State, and the effect thereof; and that they have leave to report by bill or otherwise. _Ordered_, That Mr. ALEXANDER, Mr. DAVID R. WILLIAMS, Mr. JOHN G. JACKSON, Mr. KEY, and Mr. QUINCY, be appointed a committee, pursuant to the said resolution. A message from the Senate informed the House that the Senate have passed a bill, entitled "An act supplemental to an act entitled 'An act for extending the terms of credit on revenue bonds, in certain cases, and for other purposes;'" also, a bill, entitled "An act to change the post route from Annapolis to Rockhall, by Baltimore to Rockhall;" to which they desire the concurrence of this House. _Foreign Relations._ The following is Mr. GARDENIER'S speech entire: Mr. Speaker: I had intended to defer the delivery of my sentiments upon the second resolution, until that resolution should come before the House. But the course which the debate has taken, has produced a change in my original intention. That the first resolution is an unnecessary one, because no clear, definite, practical results can flow from it, appears to me self-evident. Are the people of this country suspected of an intention to abandon their rights or their independence? Indeed, sir, they are not. Why then is it, that we are called upon to make a new declaration of independence? Or was the Administration conducted in such a manner as to make the firmness and patriotism of the nation itself doubted abroad? Even I, sir, who am not suspected of a blind confidence in our rulers, will not advance such a charge. The true question is not, Is the matter expressed in this abstract proposition true? But, Is it necessary that a resolution containing it should be passed by this House? I agree with the gentleman from Tennessee (Mr. CAMPBELL) that it would be no less ridiculous to pass this resolution than to pass one that the sun shines. Allowing both to be true, both are equally unnecessary to be embodied in a resolution of this House. Begin this system of abstract legislation, and where are you to stop? Sir, it partakes too much of the character of disturbed, revolutionary times. To such a blasphemous height was this notion of voting abstract propositions, or declarations, or truisms (call them what you will) carried at one time in France, that their Convention very gravely decreed "that there was a God!" This was a self-evident truth; and being so could not become more so by being decreed. And if the edicts of Great Britain and France go to the destruction of our "rights, honor and independence," our voting that such is their operation, makes it neither more nor less true. But, it is said, a select committee have placed the resolution before us, and we are bound to vote whether the assertions it contains are true or false. Why, sir, if I should offer a resolution that at this moment the sun shines, and some one should second me, would it be contended that this House ought gravely to proceed to the question? and if any member should say, "I vote against this resolution because it is too true to be made more so; and because, therefore, I think it unnecessary to be passed," that he, sir, should be considered blind? Again, gentlemen, some too with whom I am in the habit of acting, say, at the worst, the resolution is harmless--it ties you down to no specific course, and therefore you may as well vote for it; that to vote against it, will afford a handle against our popularity--that the resolution itself is an artful one--a trap set to catch the Federalists, as it will hold them up to suspicion, if they vote against it--for the vote will appear upon the Journals, when the argument is not to be found there. Well, sir, if it be in truth a trap to catch poor Federalism in, I, for one, sir, am willing to be caught. I never deceived the people whom I have the honor to represent, either by giving a vote to the propriety of which my judgment was opposed, or by professing opinions which I did not entertain; and, sir, I trust in God I never shall. The applause of my constituents is dear to me. But I would rather strive to deserve it--than, not deserving it, to receive it. Yes, sir, my course shall be always a plain one--a straightforward course. I have not acquired the confidence of my constituents by increasing their delusions. I have always labored to disperse them. At my first election to this House, a decided majority of them were opposed to my politics. The thought has often distressed me. But the cause of that distress exists no longer. And, therefore, sir, I will go on discharging my duty with the most scrupulous obedience to my judgment, and where the weight of a hair ought to turn the scale, it shall turn it. But if I had no other objection against this abstract "harmless" resolution, there is one which would be decisive: I would reject it on account of "the company it keeps." The committee, for reasons which I shall not stop to disclose, have thought it important to introduce this, by way of propping the second one. That second one, sir, the undoubted object and inevitable tendency of which my whole soul recoils from, which I abhor and deprecate, as fatal to the prosperity and happiness of my country--as the grave of its honor--and I fear I do not go too far when I add, of its independence! that resolution is not alone submission to France; but, under the pretence of resisting her infractions of the laws of nations, her violations of the sacred rights of hospitality, her laughing to scorn the obligation of treaties--it makes us submit to all--to encourage a perseverance in all. Nay, sir, it throws the whole weight of our power into her scale, and we become not only the passive, but, to the whole extent of our means, the active instruments of that policy which we affect to abhor. This, sir, unhappily, is capable of the most clear demonstration; and, in the proper place it shall appear so. I enter now upon the discussion of the second resolution. And although I am aware how little professions of sincerity and embarrassment are generally regarded, and, indeed, how little they ought to be regarded, yet I cannot approach this awful subject without declaring that I feel as if I was about to enter the sanctuary of our country's independence; and I tremble with the same fearful distrust of my powers, the same distressing perplexity which would embarrass me if I had entered the labyrinth in which was concealed the secret of that country's honor, prosperity and glory. I do feel, sir, that we should enter upon the discussion of this question divested of all the prejudices and passion of party--no less than all foreign predilections and animosities--with clean hearts, sir; yes, hearts seven times purified, to prepare them for the discharge of the sacred, the holy duties of this awful crisis. He who can come to this debate with other motives than to save his country, placed as it is on the brink of a dreadful precipice, deserves to be heard nowhere but in the cells of the Inquisition. The sound of his voice should never be suffered to pollute the Hall of the Representatives of the American people. But he who, thinking that he has traced the causes and the progress of our misfortunes, and that he may, perhaps, point the nation to a path which may lead it back to the prosperous position it has been made to abandon, would be a traitor to the State, if any considerations could keep him silent. In my view, sir, we have gone on so long in error--our affairs have been suffered to run on, year after year, into so much confusion, that it is not easy to say what should be done. But if it is magnanimous to retract error, certainly it is only the performance of a sacred duty, which their servants owe the people, to abandon a system which has produced only disappointment and disasters hitherto, and promises only ruin and disgrace in future. The time, sir, has been, when the Government was respected at home and abroad, when the people were prosperous and happy, when the political body was in high, in vigorous health; when America rejoiced in the fulness of her glory, and the whole extent of the United States presented a scene unknown in any other country, in any other age. Behold now the mournful contrast, the sad reverse! We are "indeed fallen, fallen from our high estate!" The nation is sick--sick at heart. We are called upon to apply a remedy; and none will answer which shall not be effectual. No quack prescriptions will answer now. And the cure, to be effectual, must not persevere in a course which has not only produced no good, nor promises any; but which has brought the patient (if I may use the figure of the gentleman from Maryland, Mr. NELSON) to his present forlorn condition. Such a perseverance may seem to argue great hardihood, or, if you please, spirit; but, after all, it is nothing but the desperate frenzy of a losing, half-ruined gamester. It becomes, therefore, at last, indispensable to take a retrospective view of our affairs. And, if in taking this view, we should find the cause of our disasters, we must not fear to contemplate it, to hold it up; and, having grown wise by experience, we must not be prevented by false pride, from profiting by it; we must not shrink from the exercise of a virtue because it is also an imperious duty. And I hope that no gentleman who hears me is unwilling to sacrifice the popularity of the Administration to the salvation of the country. Permit me then, sir, to go back to that period in our history which immediately preceded the adoption of our present form of Government. What was then our condition? The people were poor--for there was no commerce to assist agriculture--there was no revenue for general objects. Many States were hardly able to collect enough for State purposes. And, of course, there was no such thing as public credit, although there was an immense floating debt. We had no reputation abroad--there was no confidence even at home. But, sir, we had a WASHINGTON, and we had the pupils of WASHINGTON, men whom he knew to be faithful in the Cabinet, for he had found them faithful in the darkest stages of the Revolution. The nation, happily, had not been deluded--they knew their friends by their deeds--they had not yet yielded to the sweet fascination of the seductive popular declamations of these latter times. Men were known by what they did, not by what they said. These men, sir, had the sagacity to discover the secret springs of our prosperity and happiness and glory. And they were able to strike them with a powerful hand, and with a powerful hand they did strike them; and, instantly, as if by enchantment, the scene changed. Suddenly, agriculture raised her drooping head, for commerce beckoned her to prosperity. Your people began to pay their debts and to become rich. Public credit was restored; the Treasury began to fill readily. Sources of revenue were explored, certain of continually increasing, equally certain of being never exhausted, except by folly and madness. Indeed, sir, so perfect was the financial machinery that it admitted of no improvement. It required no more skill in the successors of the illustrious Hamilton to make this instrument "discourse most excellent music," than it would a child to play a hand-organ. An end was put to our Indian wars; our Algerine captives were redeemed--our reputation was established abroad, and the United States assumed their just rank among the nations of the earth! This was, indeed, a work worthy of the illustrious patriots who achieved it. It was the result of that profound practical wisdom, which, never yielding to the deception of brilliant theory, saw the public interest with a clear eye, and pursued it with a firm and steady step; and it was no wonder that it was successful. Let me add, too, that all this was accomplished without taxation being felt by the people. But this great prosperity was not without interruption. It received a stroke, sir, deep and dangerous, and almost mortal, from the tremendous system of spoliations commenced by Great Britain in 1793. Misfortunes cast themselves across the path of nations as well as individuals. They are often unavoidable, and no nation can hope to be always exempt from them. The wisdom of the human mind is displayed in putting an end to them in private affairs, and in public that statesman only is great who can overcome and disperse them, who, though he cannot avert the bolt, can prevent the ruin it threatens. At the period of which I speak, we had such statesmen. Yes, sir, the alarm was depicted on every countenance--though the nation staggered to its centre under the severity of the blow it had received, yet was the Administration equal to the dreadful emergency--it had brought the nation into existence and prosperity, and it was equal to the preservation of both. And they showed it not by venting their rage in idle reproaches, but by applying efficient remedies to the diseases of the country. Let it be remembered that justice was to be obtained from Great Britain; from that power which is now represented and held up to our indignation as "proud, unprincipled, imperious, and tyrannical;" and which certainly was at least as much so then; for then she had on her side all Europe engaged in combination against France, and France was alone as England is now. In short, she was then on the continent of Europe what France is now. Yet, from this same country did our Government succeed in obtaining not only reparation for the spoliations committed, but a surrender of the Western posts also. I repeat, sir, all this was accomplished when Great Britain was not less imperious in disposition, but more formidable in power than she is now. And surely all this ought to appear strange and wonderful indeed to those who have been deluded into the idea that, when Great Britain was struggling, gasping for existence, the same thing was impossible: that has with ease, and under more inauspicious circumstances, been accomplished, which the men now in power pretend they have attempted in vain. Still strange as it may seem to them, it is a fact--it is history. Well, sir, how was this miracle brought about? By a process very plain and simple. The Administration was sincerely desirous of peace; and that single object in their eye, they exerted their abilities to obtain it and consequently did obtain it. The instructions of the Minister breathed a desire of peace--of reconciliation upon terms compatible with the honor of both nations. The Administration did not send with their Minister a non-importation act, a proclamation, or a permanent embargo, by way of exhibiting their love of peace. The refinement in diplomacy which sends with the negotiator a new cause of quarrel for the purpose of accelerating the adjustment of an old one, was not yet invented. No, sir, Mr. Jay, (and the name of that stern, inflexible patriot and Republican, I always repeat with delight and veneration, because he is a patriot and a Republican)-- [Here Mr. UPHAM took the advantage of a pause made by Mr. G. to observe that, as the gentleman appeared considerably exhausted, &c., he would move an adjournment, which was taken by ayes and noes and lost--ayes 47, noes 65--Mr. G. voting in the affirmative.] Mr. G. continued.--Mr. Jay had no disposition to bully the British Government into justice; he had no objection that they should have all the merit of returning voluntarily to a sense of justice, provided his country might have the benefit of substantial reparation. The stern sage of the Revolution became the courteous ambassador, and, appealing "to the justice and magnanimity of His Britannic Majesty," he demanded redress and he obtained it. The British Government saw that ours was sincerely disposed to be at peace with them, and, pursuing the natural direction of their interests, there was no difficulty in making peace. Our plundered merchants were compensated--paid, sir, _bona fide_. We did not purchase redress; we did not pay for the surrender of the Western posts, which were our right, and out of the purchase money indemnify a portion of our own citizens. No; the payment was to all; and in right old-fashioned "British gold," all counted down on the nail. I wish that I could, with equal truth, say the same thing of more modern treaties. And now, sir, compensation being made by Great Britain for the spoliations on our commerce, the Western posts being surrendered, a commercial treaty being established, the dark cloud which obscured our prospects being dispersed, the sun of our prosperity once more burst forth in all its radiance, and again all was well. I care not what were the objections of the day, begotten in the brain of faction, and cherished in mobs; under the treaty we were prosperous and happy, and that one fact is enough for me. Bad as the treaty was represented to be, and the worst feature of it most probably was, that it was a British Treaty--bad as it was, the continuance of its existence has been precisely co-extensive with the progress of our prosperity--it made our people rich and happy; and, bad as it was, they would have cause to rejoice indeed if the present Administration had furnished them with just such another. France saw with uneasiness the return of a good understanding between America and Great Britain. And she, in her turn, let loose her plunders upon our commerce. Again the wisdom of our Government was called into action, and again it produced the most happy result. What did they do? An embassy was despatched to France, redress was demanded, but the Ministers were not received, nor could be, till a _douceur_--a tribute--was paid. From a nation which returned such an answer, redress could not be expected; and there was an end of negotiation. Britain and France had acted toward us with equal injustice--the disposition of our Government, its desire of peace, was the same with both. Its conduct was the same to both, but France would not even hear our demands. The American Government were at no loss how to act. The case was a plain one. One nation robs another--that other demands reparation--prevarication is the reply. It requires no skill to see, in such a case, that, to coax the offender into reparation is impossible. Accordingly, our Government did not hesitate as to the course it should pursue; they did not wait to be spurred on by any Government to an assertion of their rights; they would not leave it one moment doubtful whether they had the disposition and the courage to assert them. They proceeded immediately to annul the French Treaty, to pass non-intercourse laws; they built ships of war, and sent them upon the ocean, to protect our commerce. They were not so obstinate but that they could receive instruction, even from the author of the "Notes on Virginia," who, in that work, so judiciously recommends a navy. Our little armament picked up the French cruisers, great and small; the coast, the sea, was soon cleared of them. And our commerce again visited every clime in safety. I will here remark, sir, that, during all this time, the staple commodities (particularly of the Northern States) suffered no diminution, but an increase in price. Well, sir, France very soon discovered that she had nothing to gain, and we nothing to lose by such a state of things. Even then, when she had some naval power, she discovered this. She was, therefore, very soon disposed to change it. A treaty was patched up, in the end, and something like the appearance of redress provided for. Now, sir, for the result. A former Administration were able to settle our differences with Great Britain, although she governed all Europe, although she was unjust, haughty, and imperious. Now the same thing is said to be impossible! A former Administration were able, after a fair negotiation had failed, to bring France, who had then some maritime power, on her marrow-bones. And now, when she has none, again the same thing is impossible! How happens all this? Sir, I am afraid your Administration have committed most capital mistakes. They have been unwilling to learn wisdom from the experience and success of their predecessors. I do fear, and I shall be obliged to prove, that, on the one hand, they have been actuated by, certainly they have never (following the example of a former Administration) manifested a sincere disposition to accommodate our difficulties with Great Britain. And, on the other hand, they have in no instance shown to France that bold front which, in more unpromising times, brought the terrible Republic to her senses. These two errors, these wilful, wanton aberrations from established policy, are the true causes of all our misfortunes. It is owing to them that we have, if we believe the Administration sincere, two enemies who are already at war with each other, and we, the only instance of the kind since the creation of the world, are to step out a third and distinct belligerent, a sort of Ishmaelite belligerent; our hand against every nation, and every nation's hand against us. We are in a situation which defies hope, one in which we have but a single miserable consolation, that though it promises nothing but ruin, yet it is so ridiculous, so ludicrous, that we can but smile at it. These remarks are extorted from me a little out of their order. I return to the period of the restoration of peace between the United States and France. The Administration now (1801) passed into the hands of other men. They received a country, rich, prosperous, and increasing in prosperity. A people contented and happy; or discontented only with those who had been the authors of their prosperity. They received a Treasury full and overflowing, giving a vigor and a spring to public credit almost unknown before, and to the reputation of the country a dignity unsullied; they found us in peace and friendship with all nations, our commerce whitening every sea, and rewarding agriculture for all its industry, and every one sitting in peace under his own vine and fig tree. Our country presented to the animated philanthropist one uninterrupted display of liberty, of gaiety, and of felicity. Oh! happy, happy period of our history--never, never, I fear to return. And, if ever truth dropped from the lips of man, it was when the nation was declared to be in "the full tide of successful experiment." Never were the destinies of a nation in more wonderful prosperity committed to men. That prosperity had been acquired at a price no less unparalleled, at the expense of the destruction and disgrace of those whose wisdom and energy had produced it. The new men, sir, were not required to bring order out of confusion; that had been done already. They were not called upon to lay the deep and strong foundations of national prosperity and happiness; that had been done already. They were not enjoined to "multiply" the talents committed to their stewardship; that was unnecessary--they were merely commanded to preserve them undiminished. They were not required to create a paradise--but to keep uninjured that which was committed to their guardianship. They promised, indeed; they were so rash, in the fulness of their exultation, as to promise to do more; but folly alone could believe them; and for breaking this promise I forgive them, for to do more was impossible. And if they had but preserved unimpaired, if they had not totally destroyed the inestimable treasures intrusted to them, I would have endeavored to overcome my resentment, my indignation, and my despair. In performance of their lofty promises, in disregard of sacred duties, what have they done? In what condition do they leave the country, which, eight years since, "in the full tide of successful experiment," fell into their hands? They present to us, sir, the gloomy reverse of all it was. The people discontented and distressed--all becoming daily more and more poor--except, indeed, that class of rich speculators, whose wealth and whose hearts enabled them to prey upon the wants of their countrymen. The despair and dismay of 1786 are returned! The prosperity of twenty years is annihilated at one stroke! The sources of revenue are dried up. The Treasury, indeed, may be now full--but it must continually diminish--and, without its usual supply, it must soon be empty. We have still some credit. But how long, sir, can that be maintained, when it is known that we have no longer the means, allowing us to possess the disposition, to fulfil our pecuniary engagements? When you cannot collect a cent upon imposts, and dare not lay a direct tax, how far you will be able to obtain money on loan, is, to say the least of it, very questionable. But, I will hasten to finish the contrast I was about to make. Commerce, sir, has perished, and agriculture lies dead at her side--for these twin sisters must flourish or die together. No nation in the world is our friend--our paradise is becoming a wilderness; our soil is stained with the blood of our own citizens; and we look around us, in vain, for one solitary benefit to compensate us for all the dreadful effects of the present system. Perhaps, sir, I may be answered: "Though all you have said be true, though our former prosperity exists no longer, it is ungenerous, it is unjust to impute the change to the agency of the Administration. What has happened could not be prevented." Though such a rebuke were reasonable, I will still insist that the Administration, if they deserve no censure, are certainly entitled to no praise, and can ask for no confidence. If they have not been the authors of the public calamities, they have not, like their predecessors, discovered the ability to prevent them from coming thick upon us. If their hearts are honest, their heads have not discovered much soundness. No set of men, however ignorant, however stupid, could have placed the country in a worse or a more deplorable situation. The truth is plain and palpable. Judging of the wisdom of the Administration by the result of its measures, I cannot sing praises to them for their skill and ingenuity in diplomacy. No, sir; I delight in that diplomacy which makes the poor rich; which makes industry prosperous; which spreads contentment through the land, and happiness among the people. I delight in the diplomacy, whose skill and wisdom can be read in the countenance of my countrymen, and makes the face of my country the evidence of its prosperity. I like not, I abhor that diplomatic skill which can be found only in a book! which has produced nothing but calamity, and whose praise is written in the blood of my countrymen. But, sir, how happens it that we still remain under the distresses occasioned by the belligerents? Is there, indeed, a physical impossibility of removing them? From Great Britain, and that, too, when she had the whole continent on her side, we could once obtain justice, not only for the past, but security for the future. From France, too, we could once obtain justice, but now we can gain justice from neither. What change, sir, has occurred in the state of things to produce this strange impossibility? Our commerce is more an object to Great Britain now, than it was formerly--and France can oppose to us no resistance on the ocean. And yet no remedy can be found for our calamities! Sir, I will not be the dupe of this miserable artifice. What has been done once can be done again by employing the same means. The Administration have committed greater errors. They have conducted all their affairs in such a style as to leave Great Britain no room to doubt that, when they asked for peace, they wanted it not. To this cause may be traced all our difficulties, so far as they proceed from that power. As it regards France, I fear that they have not acted the proper, the manly part. In short, sir, they have not pursued toward England the policy which saved us in 1795, nor toward France the policy which was successfully opposed to French rapacity and French obstinacy in '93. I think an error was committed, when, affecting to desire an amicable arrangement with Great Britain, instead of treating with her as a nation not to be intimidated, much less bullied, the non-importation act was passed. For, sir, if she was so proud, so haughty, so imperious, as some gentlemen delight to describe her, then to bring her to justice by assuming an attitude of menace, was evidently impossible. When, therefore, you passed the non-importation act, under a pretence that it would be a successful auxiliary to friendly negotiation, what could you expect but to alarm the pride, and the haughtiness, and imperiousness of that nation? And, doing that, how could you expect an amicable result? No, sir, it was not, and it could not be expected. You obtained a treaty indeed--but it was from a Fox Ministry. Yet such as it was, it was not so good as a Jay's Treaty, and the Executive rejected it without so much as laying it before the Senate. In support of the embargo system, gentlemen say, if we suffer our commerce to go on the ocean, or wherever it goes, it will be crippled either by France or Great Britain. Although this is not true in the extent laid down, yet it will hold tolerably true as respects the European seas. From what gentlemen are pleased to represent as the impossibility of sailing the ocean with safety, result (say they) the propriety and necessity of the embargo system. And they say, it is not the embargo, but the decrees and orders which are the true cause of all we suffer; that the embargo, so far from being the cause of, was advised as a remedy for the evils we endure. Well, sir, for the sake of the argument, be it as they say. Has the embargo answered? Is there any probability, the slightest indication, that it will answer? Has it operated, to any perceptible extent, except upon ourselves, during the twelvemonth it has been in existence? If, then, neither the remembrance of the past, nor the prospect of the future, gives the least encouragement to hope, why will gentlemen persist in the system? And that too, sir, at an expense to their own country so enormous in amount? Will they go on obstinately amid all the discontents, or clamors (as gentlemen in very anti-republican language call the voice of the people) in the Eastern and Northern States? And that from mere obstinacy--an obstinacy not encouraged by the least glimmering of hope? If I could be pointed to a single fact, produced by the operation of the embargo, which would prove that it had any other effect on the disposition of Great Britain than to irritate--or any other on France than to please, than to encourage her to a perseverance in that system of injustice which we pretend to oppose, but to the policy of which we give all our support with an infatuated wilfulness, and which, therefore, increases the hostility Great Britain has felt from the measure--if they could show me, sir, that the embargo will bring either to terms, I would abandon the opposition at once, and come heart and hand into the support of your measures. The other day, the gentleman from South Carolina (Mr. WILLIAMS) almost persuaded me that it ought to operate upon Great Britain; but I looked and I found it did not, and I was convinced it would not. But, have gentlemen reflected that, if all the evils were drawn from Pandora's box, to vex Great Britain, you could have hit on none so well calculated to call out all her resistance, and all her obstinacy, as this same expedient, the embargo! If she yields to us, under the pressure of such a system, she discloses to us the secret of her independence! Sir, the embargo is war; it was intended as such against Great Britain. And she understands its meaning and its character too well for us to disguise it, under a pretence of its being a mere precautionary municipal measure. Its efficacy as a coercive measure has been too often and too loudly boasted of in this House, to make its real object a secret to her. Nay, in so far as the great and prominent feature of war is coercion; in so far as war is always intended to make the adversary yield that which he will not yield voluntarily; in so far, are the embargo and the non-importation act WAR. Each was intended to coerce Great Britain to yield to us points which it had been ascertained she would not yield voluntarily. It was a system of coercion, a new-fangled sort of philosophical experimental war; novel, to be sure, in its character, but, to all substantial purposes, war. Instead of bloodshed, there was to be ink shed--instead of bayonets, pens--instead of the bloody arena, huge sheets of paper! Whenever Great Britain shall yield to the coercion of the non-importation, embargo, or non-intercourse system, she virtually tells the people of the United States, "we are in your power whenever you choose to make a claim upon us, whether just or unjust; threaten us with an embargo and a non-intercourse, and you bring us to your feet." Does any gentlemen believe, even allowing the pressure of the embargo to be great upon her, that she can yield, that she can afford to yield? That she can admit that we have her always perfectly in our power? Sooner would she give up in battle--sooner would she see her soldiers retreating before our bayonets; sooner would she see her armies perish under our valor, than acknowledge herself the slave of this magic wand. Her children might grow to be men, and she might try the fortune of another day; the hair of Samson might grow on again, and his strength be renewed; but in yielding to the chance of the embargo, she places her existence in our hands, and becomes dependent upon our will for the existence of her sovereignty. Sir, the King of England cannot, he dare not, yield to our embargo. But, sir, he has not told us that he considers our embargo hostile to him; nor has our Government ever told him that it was; such a declaration has never been put to paper. No, sir; when you look into the correspondence, it would seem that the embargo was never intended as a coercive measure, nor even understood so by Great Britain. Every thing on both sides is conceived in a sincere spirit of "friendship." Our non-importation act, our proclamation, our embargo, are all acts of friendship and kindness toward Great Britain, for aught we find there. And Great Britain issues her Orders in Council in a reciprocating spirit of amity toward us. She is not offended with our non-importation act, nor our embargo. Not at all. Her orders are not intended to harm us. She means nothing in the world, but simply to retaliate upon France--and she is sorry that almost the whole force of the blow falls upon us, but it is unavoidable. She, by the laws of nations, has as perfect a right to retaliate upon France as we have to make our innocent municipal regulations--and she is full as sorry that her retaliation system should wound us, as we are that our municipal regulations should incommode her. Sir, this diplomatic hypocrisy (begun, I acknowledge, by us) is intolerable. Sir, there is not one word of truth in the whole of it, from beginning to end. The plain state of the case is this: Anterior to the non-importation act, the British Treaty had expired--there were points of dispute, particularly concerning the impressment of seamen, which could not be adjusted to the satisfaction of our Government. In this state of things, either we ought to have gone to war, or we ought not. If we had intended to do so, stronger measures should have been resorted to than a non-importation act. If we had not intended to do so, the act should never have been passed. Those who passed it could have but one of two objects in view; either to coerce Great Britain to the terms we demanded--or, by vexing and irritating her, to raise up in due time an unnecessary fictitious quarrel, which (as this country is known to be extremely sensitive of British aggression) might ultimately end in a real old-fashioned war. No men could have been so weak as to calculate upon the first result. As to the other, the wisdom of the calculation is pretty strongly proved by the situation in which we now find ourselves. Sir, this is the whole mystery--and it must be explored--it must be exposed. We must understand the real character of our controversy with Great Britain--the real character, intent, and aim, of the different measures adopted by us and by her, before we can hope to heal the wounds our peace has received, or to restore the prosperity we have been unnecessarily made to abandon. I know, sir, how difficult it is to overcome matured opinions or inveterate prejudices; and I know, too, that, at this time, the individual who shall venture to lay open "the bare and rotten policy" of the time, makes himself the butt of party rancor, and strips himself to the unsparing "lacerations of the press." But these are considerations too feeble to deter me from my duty. [Mr. G. appearing much exhausted, and Mr. QUINCY having intimated to the House that Mr. G. suffered under a pain in the side, moved for an adjournment. The SPEAKER inquired whether Mr. G. yielded the floor? Mr. G. replied, he had himself little inclination to continue his remarks, but the House appeared so eager to hear him, (a laugh,) he hardly knew what answer to make. However, he said, he would give the floor. The House then adjourned.] The object, sir, of our present deliberations is, or ought to be, to relieve our country from the distresses under which it groans; to do this, we should be prepared to legislate with a single eye to the welfare and happiness of the nation. It is of the first necessity that we should deliberate with calmness, if we mean to apply an effectual remedy to the diseases of the State. In the remarks which I had the honor to make yesterday, I was constrained to draw a contrast between the measures and prosperity of former times and those of the present times. Under circumstances of the same character, we were formerly able to overcome our misfortunes. Now we are not. And I did this for the purpose of impressing upon the House an opinion, that if the Administration had practised upon the principles of their predecessors, all had been well; or, that if retracing their steps, or relinquishing the path of error and misfortune, they would still be the learners of wisdom and experience, it would not even now be too late to retrieve the affairs of the country. If I know my own heart, I did not make the comparison from any invidious purposes; but merely to turn the minds of gentlemen back to former times; that they might reflect upon the perils and calamities of those times, and the means by which an end was put to them; but in doing this, I could not avoid paying the tribute of deserved praise and of sincere gratitude to the men under whose agency we prospered abundantly. In contrasting the conduct of the present with that of the former Administration, I meant to subserve no purposes of party. Nay, sir, I could have much desired to have been spared the necessity of presenting that contrast before the nation. I could have wished to have avoided these references, lest I might excite party feeling in others; lest I might appear to be governed by them myself. But truth could not be attained by any other course, and I have been compelled to take it. The first resolution, contained in the following words, was divided, so as to take the question first on the part in italic: "Resolved, _That the United States cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of Great Britain_--and France." The question was then taken on the first clause of this resolution, and carried--yeas 136, nays 2. The question being about to be put on the remaining part of the resolution, viz: on the words "and France"-- The question then recurred on the second member of the first resolution; and the same being taken, it was resolved in the affirmative--yeas 113, nays 2. The main question was then taken that the House do agree to the said first resolution as reported to the Committee of the Whole, in the words following, to wit: "_Resolved_, That the United States cannot, without a sacrifice of their rights, honor, and independence, submit to the edicts of Great Britain and France:" And resolved in the affirmative--yeas 118, nays, 2. SATURDAY, December 17. A division of the question on the resolution depending before the House was then called for by Mr. DAVID R. WILLIAMS: Whereupon, so much of the said resolution was read, as is contained in the words following, to wit: "_Resolved_, That it is expedient to prohibit, by law, the admission into the ports of the United States of all public or private armed or unarmed ships or vessels belonging to Great Britain or France, or to any other of the belligerent powers having in force orders or decrees violating the lawful commerce and neutral rights of the United States." The question then recurring on the first member of the original resolution, as proposed to be divided on a motion of Mr. D. R. WILLIAMS, and hereinbefore recited, a division of the question on the first said member of the resolution was called for by Mr. GARDENIER, from the commencement of the same to the words "Great Britain," as contained in the words following, to wit: "_Resolved_, That it is expedient to prohibit, by law, the admission into the ports of the United States of all public or private armed or unarmed ships or vessels belonging to Great Britain." The question being taken that the House do agree to the same, it was resolved in the affirmative--yeas 92, nays 29. A farther division of the question was moved by Mr. ELLIOT, on the said first member of the resolution, on the words "or France," immediately following the words "Great Britain," hereinbefore recited: And the question being put thereupon, it was resolved in the affirmative--yeas 97, nays. 24. And on the question that the House do agree to the second member of the said second resolution, contained in the words following, to wit: "Or to any other of the belligerent powers having in force orders or decrees violating the lawful commerce and neutral rights of the United States:" It was resolved in the affirmative--yeas 96, nays 26. The question then being on the residue of the said resolution contained in the following words: "And, also, the importation of any goods, wares, or merchandise, the growth, produce, or manufacture, of the dominions of any of the said powers, or imported from any place in the possession of either:" The question was taken, and resolved in the affirmative--yeas 82, nays 36. The main question was then taken that the House do agree to the said second resolution, as reported from the Committee of the whole House, and resolved in the affirmative--yeas 84, nays 30, as follows: YEAS.--Lemuel J. Alston, Willis Alston, jun., Ezekiel Bacon, David Bard, Joseph Barker, Burwell Bassett, William W. Bibb, William Blackledge, John Blake, jun., Thomas Blount, Adam Boyd, John Boyle, Robert Brown, William A. Burwell, William Butler, Joseph Calhoun, George W. Campbell, Matthew Clay, Joseph Clopton, Richard Cutts, John Dawson, Joseph Desha, Daniel M. Durell, John W. Eppes, William Findlay, Jas. Fisk, Meshack Franklin, Francis Gardner, Thomas Gholson, jun., Peterson Goodwyn, Edwin Gray, Isaiah L. Green, John Heister, William Helms, James Holland, David Holmes, Benjamin Howard, Reuben Humphreys, Daniel Ilsley, John G. Jackson, Richard M. Johnson, Walter Jones, Thomas Kenan, William Kirkpatrick, John Lambert, John Love, Nathaniel Macon, Robert Marion, William McCreery, John Montgomery, Nicholas R. Moore, Thos. Moore, Jeremiah Morrow, John Morrow, Roger Nelson, Thos. Newbold, Thomas Newton, Wilson C. Nicholas, John Porter, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Matthias Richards, Benjamin Say, Ebenezer Seaver, Samuel Shaw, Dennis Smelt, John Smilie, Jedediah K. Smith, John Smith, Henry Southard, Richard Stanford, Clement Storer, John Taylor, George M. Troup, James I. Van Allen, Archibald Van Horne, Daniel C. Verplanck, Jesse Wharton, Robert Whitehill, Isaac Wilbour, David R. Williams, Alexander Wilson, and Richard Wynn. NAYS.--Evan Alexander, John Campbell, Epaphroditus Champion, Martin Chittenden, John Culpeper, Samuel W. Dana, John Davenport, jun., Jas. Elliot, William Ely, Barent Gardenier, John Harris, Richard Jackson, Robert Jenkins, James Kelly, Philip B. Key, Joseph Lewis, jun., Matthew Lyon, Josiah Masters, William Milnor, Jonathan O. Mosely, Timothy Pitkin, jun., Josiah Quincy, John Russell, James Sloan, L. B. Sturges, Samuel Taggart, Benjamin Tallmadge, Jabez Upham, Philip Van Cortlandt, and Killian K. Van Rensselaer. And on the question that the House do concur with the Committee of the Whole in their agreement to the third resolution, in the words following, to wit: _Resolved_, That measures ought to be immediately taken for placing the country in a more complete state of defence: It was unanimously resolved in the affirmative. On motion of Mr. GEORGE W. CAMPBELL, _Ordered_, That the second resolution be referred to the committee appointed on so much of the Message from the President of the United States, at the commencement of the present session, as respects our relations with foreign powers, with leave to report thereon by way of bill or bills. On motion of Mr. GEORGE W. CAMPBELL, _Ordered_, That the third resolution be referred to the committee appointed, on the 8th ultimo, on so much of the said Message from the President of the United States as relates to the Military and Naval Establishments, with leave to report thereon by bill, or bills. MONDAY, December 19. _Miranda's Expedition._ Mr. LOVE called for the order of the day on the report of the committee on the subject of the thirty-six persons confined in Carthagena, South America. The following is the resolution reported by the committee: _Resolved_, That the President of the United States be _requested to adopt the most immediate and efficacious means in his power to obtain_ from the Viceroy of Grenada, in South America, or other proper authority, the liberation of thirty-six American citizens, condemned on a charge of piracy, and now held in slavery in the vaults of St. Clara, in Carthagena, and that the sum of ---- dollars be appropriated to that purpose. Mr. D. R. WILLIAMS moved to postpone the consideration of the subject indefinitely. Negatived--50 to 36. The House then went into a Committee of the Whole on the subject--39 to 33. Mr. LOVE moved to amend the resolution by striking out the words in italics, and inserting "authorized to request."--Carried, ayes 54. Those gentlemen who supported this resolution in the debate were Messrs. LOVE, LYON, BACON, NELSON, SLOAN, and WILBOUR. Those who opposed it were Messrs. D. R. WILLIAMS, TAYLOR, SMILIE, MACON, and SOUTHARD. The gentlemen who opposed the resolution, among other objections, contended that an agreement to the resolution would but involve the Government in difficulty without answering any good purpose; that it would in fact be aiding the attempt of a certain party to prove that the General Government had some connection with this expedition originally, which it certainly had not; that the facts set forth in the petition were wholly unsupported by evidence; that these persons had engaged themselves in a foreign service; that they had become weary of the privileges of freemen, and had entered into a hostile expedition against a foreign country, and, in so doing, had been taken, condemned for piracy, and immured as a punishment for that offence; that the British Government, having been at the bottom of this business, was the proper power to release these persons, and indeed had applied to the Spanish commander for the purpose; that even were the United States bound by the laws of justice or humanity to intercede for these persons, they knew not to whom to make application, and would probably meet with a refusal, perhaps a rude one, if any judgment could be formed from the present situation of our affairs with Spain; that if gentlemen wished for objects on which to exercise their humanity, they might find them in the lacerated backs of our impressed seamen, without extending it to criminals. In reply to an observation of Mr. LYON, that if we did not get these men Great Britain would do so, and employ them to extend her naval force, Mr. MACON replied, if she did, she was welcome to keep them; but she was in the habit of supplying her navy with seamen from our vessels, without the trouble which the acquisition of these men might occasion her. In reply to these objections, and in support of the resolution, the humanity of the House was strongly appealed to. It was urged that the Government could in nowise be involved by an appeal to the generosity of the provincial government; that these men had not wilfully committed piracy, but had been deluded under various pretences to join the expedition; that they had joined it under a belief that they were entering into the service of the United States; that, even admitting them to have been indiscreetly led to join the enterprise, knowing it to be destined for a foreign service, yet, that they had been sufficiently punished by the penalty they had already undergone; that it was wholly immaterial what inference any persons might draw from the conduct of the United States in this respect, as to their concern with the original expedition; that such considerations should have no weight with the House; that if these poor fellows were guilty, they had repented of it; and Mr. NELSON quoted on this point the Scriptures, to show that there should be more joy over one sinner that repenteth, than over ninety and nine who have no need of repentance. In reply to an intimation that it was not even ascertained that they were American citizens, Mr. BACON observed that one of them had been born in the same town in which he was, and was of a reputable family. The resolution was negatived by the committee--49 to 31. The committee rose and reported the resolution, which report the House agreed now to consider--ayes 57. The question of concurrence with the committee in their disagreement to the resolution, was decided by yeas and nays, 50 to 34. On motion, the House adjourned. TUESDAY, December 20. A new member, to wit, JOSEPH STORY, returned to serve in this House, as a member for the State of Massachusetts, in the room of Jacob Crowninshield, deceased, appeared, produced his credentials, was qualified, and took his seat in the House. WEDNESDAY, December 21. _Captain Pike's Expedition._ On motion of Mr. J. MONTGOMERY, the House resolved itself into a Committee of the Whole, on the bill making compensation to Z. M. Pike and his companions. [The first section of this bill grants to Captain Pike and his companions a certain quantity of land. The second section allows them double pay during the time they were engaged in exploring the western country.] Mr. STANFORD moved to strike out the first section of the bill; which was negatived--53 to 38. The second section was stricken out--42 to 35. A considerable debate took place on this bill, in which Messrs. MONTGOMERY, LYON and ALEXANDER supported the bill, and Messrs. MACON, DURELL, STANFORD and TALLMADGE opposed it. The bill being gone through, was reported to the House. SATURDAY, December 31. _Division of the Indiana Territory._ Mr. THOMAS, from the committee appointed on the thirteenth instant, to inquire into the expediency of dividing the Indiana Territory, made a report thereon; which was read, and committed to a Committee of the Whole on Monday next. The report is as follows: That, by the fifth article of the ordinance of Congress for the government of the Territory of the United States Northwest of the river Ohio, it is stipulated that there shall be formed in the said Territory no less than three, nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession, and consent to the same, shall become fixed and established, as follows: The Western State shall be bounded by the Mississippi, the Ohio, and Wabash rivers; a direct line drawn from the Wabash and Post Vincennes, due north, to the Territorial line between the United States and Canada, and by the said Territorial line to the Lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash, from Post Vincennes to the Ohio; by the Ohio, by a direct line drawn due north from the mouth of the Great Miami, to the said Territorial line, and by the said Territorial line. The Eastern State shall be bounded by the last-mentioned direct line, the Ohio, Pennsylvania, and the said Territorial line: _Provided, however_, and it is further understood and declared, that the boundaries of these three States shall be subject so far to be altered, that if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said Territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan. And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted by its delegates into the Congress of the United States on an equal footing with the original States, in all respects whatever, and shall be at liberty to form a permanent constitution and State Government: _Provided_, the constitution and government so to be formed shall be republican, and in conformity to the principles contained in these articles; and, so far as it can be consistent with the general interest of the Confederacy, such admission shall be allowed at an earlier period, and when there shall be a less number of free inhabitants in the State than sixty thousand. By the aforesaid article, it appears to your committee that the line fixed as the boundary of the States to be formed in the Indiana Territory is unalterable, unless by common consent; that the line of demarcation, which the Wabash affords between the eastern and western portion of said Territory, added to the wide extent of wilderness country which separates the population in each, constitute reasons in favor of a division, founded on the soundest policy, and conformable with the natural situation of the country. The vast distance from the settlements of the Wabash to the present seat of Territorial government, renders the administration of justice burdensome and expensive to them in the highest degree. The superior courts of the Territory are, by law, established at Vincennes; at which place suitors, residing in every part of the Territory, are compelled to attend with their witnesses, which, to those who reside west of the Wabash, amounts almost to a total denial of justice. The great difficulty of travelling through an extensive and loathsome wilderness, the want of food and other necessary accommodations on the road, often presents an insurmountable barrier to the attendance of witnesses; and, even when their attendance is obtained, the accumulated expense of prosecuting suits where the evidence is at so remote a distance, is a cause of much embarrassment to a due and impartial distribution of justice, and a proper execution of the laws for the redress of private wrongs. In addition to the above considerations, your committee conceive that the scattered situation of the settlements over this extensive Territory cannot fail to enervate the powers of the Executive, and render it almost impossible to keep that part of the Government in order. It further appears to your committee, that a division of the said Territory will become a matter of right under the aforesaid article of the ordinance, whenever the General Government shall establish therein a State Government; and the numerous inconveniences which would be removed by an immediate separation, would have a direct tendency to encourage and accelerate migration to each district, and thereby give additional strength and security to those outposts of the United States, exposed to the inroads of a savage neighbor, on whose friendly dispositions no permanent reliance can be placed. Your committee have no certain data on which to ascertain the number of inhabitants in each section of the Territory; but, from the most accurate information they are enabled to collect, it appears that west of the Wabash there are about the number of eleven thousand, and east of said river about the number of seventeen thousand, and that the population of each section is in a state of rapid increase. Your committee, after maturely considering this subject, are of opinion that there exists but one objection to the establishment of a separate Territorial Government west of the river Wabash, and that objection is based on the additional expense which would, in consequence thereof, be incurred by the Government of the United States. But, it is also worthy of observation, that the increased value of the public lands in each district, arising from the public institutions which would be permanently fixed in each, to comport with the convenience of the inhabitants, and the augmentation of emigrants, all of whom must become immediate purchasers of these lands, would far exceed the amount of expenditure produced by the contemplated temporary government. And your committee, being convinced that it is the wish of a large majority of the citizens of the said Territory that a separation thereof should take place, deem it always just and wise policy to grant to every portion of the people of the Union that form of government which is the object of their wishes, when not incompatible with the constitution of the United States, nor subversive of their allegiance to the national sovereignty. Your committee, therefore, respectfully submit the following resolution: _Resolved_, That it is expedient to divide the Indiana Territory, and to establish a separate Territorial Government west of the river Wabash, agreeably to the ordinance for the government of the Territory of the United States northwest of the river Ohio, passed on the 13th day of July, 1787. Mr. THOMAS, from the same committee, presented a bill for dividing the Indiana Territory into two separate governments; which was read twice and committed to a Committee of the Whole on Monday next. A motion was made by Mr. WYNN, that when this House adjourns, it will adjourn until Tuesday morning, eleven o'clock: And the question being taken thereupon, it was resolved in the affirmative--yeas 60, nays 45. MONDAY, January 9, 1809. Another member, to wit, JOHN ROWAN, from Kentucky, appeared, and took his seat in the House. _Naval Establishment._ The amendments of the Senate to the bill sent from the House for employing an additional number of seamen and marines, were taken up. [The amendments propose the immediate arming, manning, &c., all the armed vessels of the United States.] Mr. G. W. CAMPBELL expressed a hope that the House would disagree to the amendments. The President was already authorized by law to fit out these vessels, whenever, in his opinion, the public service should require it; and the expense which would attend them was a sufficient argument against it, if no urgent occasion existed for their service, which he believed did not. Mr. STORY entertained a very different opinion from that of the gentleman from Tennessee. In case of war there must be some ships of war of one kind or other; and it would take six months at least to prepare all our ships for service. At present they were rotting in the docks. If it were never intended to use them, it would be better to burn them at once than to suffer them to remain in their present situation. He believed if out at sea they might be useful and would be well employed. Why keep them up at this place, whence they could not get out of the river perhaps in three weeks or a month? He believed that a naval force would form the most effectual protection to our seaports that could be devised. Part of our little navy was suffered to rot in the docks, and the other part was scarcely able to keep the ocean. Could not a single foreign frigate enter almost any of our harbors now and batter down our towns? Could not even a single gunboat sweep some of them? Mr. S. said he could not conceive why gentlemen should wish to paralyze the strength of the nation by keeping back our naval force, and now in particular, when many of our native seamen (and he was sorry to say that from his own knowledge he spoke it) were starving in our ports. Mr. S. enumerated some of the advantages which this country possessed in relation to naval force. For every ship which we employed on our coasts, he said, any foreign nation must incur a double expense to be able to cope with us. The truth was, that gentlemen well versed in the subject, had calculated that it would require, for a fleet competent to resist such a naval force as the United States might without difficulty provide, four or five hundred transport ships to supply them with provisions, the expense of which alone would be formidable as a coercive argument to Great Britain. He wished it to be shown, however small our naval force, that we do not undervalue it, or underrate the courage and ability of our seamen. Mr. COOK followed Mr. STORY on the same side of the question. He compared the nation to a fortress on which an attack was made, and the garrison of which, instead of guarding the portal, ran upon the battlements to secure every small aperture. He thought their attention should first be directed to the gates, and that a naval force would be the most efficient defence for our ports. Mr. D. R. WILLIAMS called for the yeas and nays on the amendments. Mr. SMILIE said that raising a naval force for the purpose of resisting Great Britain, would be attacking her on her strong ground. If we were to have a war with her on the ocean, it could only be carried on by distressing her trade. Neither did he believe that these vessels of war would be of any effect as a defence. They did not constitute the defence on which he would rely. If we had a navy, it would form the strongest temptation for attack upon our ports and harbors. If Denmark had possessed no navy, Copenhagen would never have been attacked. The only way in which we could carry on a war on the ocean to advantage, Mr. S. said, would be by our enterprising citizens giving them sufficient encouragement. Were we to employ a naval force in case of war, it would but furnish our enemy with an addition to her navy. He hoped the House would disagree to the amendments of the Senate and appoint a committee of conference. Mr. DANA said that the amendments sent from the Senate presented a question of no small importance to the nation. Without expressing any opinion on the question, it appeared to him to be at least of sufficient importance to be discussed in Committee of the Whole. Coming from the other branch of the Legislature, and being so interesting to the nation, he wished that it might be discussed fairly and fully; and, therefore, moved a reference to a Committee of the Whole. Messrs. DANA, TALLMADGE, and STORY, urged a reference to a Committee of the Whole on account of the great importance of the subject, on which a full discussion would be proper; and Messrs. MACON, G. W. CAMPBELL, and HOLLAND opposed it, because the seamen proposed by the original bill were now wanted, and the subject of the amendment was already referred to a Committee of the Whole in a distinct bill. Motion lost, 58 to 55. Mr. MACON observed, that the immediate expense of this arrangement, if agreed to, would be at least five or six millions of dollars, and but four hundred thousand were appropriated by the bill. When he compared this bill with the report of a select committee made to the House of Representatives, he said he was astonished. A part of that report was a letter from the Secretary of the Navy, in which the very number (two thousand) contained in the bill as it went from this House, was desired. Mr. M. adverted to the observation of Mr. STORY, that it would cost Great Britain as much to keep one frigate as it would cost us to keep two. He thought the expense would be about equal. The expense of the transportation of provisions would be counterbalanced by the difference of expense between the pay of the British and American seamen, the latter being double of the former generally. He objected to this bill from the Senate because no estimate accompanied it. He thought they would go far enough if they gave the departments all that they asked. This House had indeed as much right to judge of the force requisite, as any other department; but he did not wish to be called upon to supply a deficit in the appropriation, which never failed to occur even in the ordinary appropriations for the Navy Department. Give the four hundred thousand dollars asked for, and the deficit in the appropriation will be at least ten times the amount of the sum appropriated. Mr. COOK contended strenuously in favor of a naval force. He detailed the advantages which would accrue to the nation from a few fast sailing frigates. He said they were essentially necessary to defence. He expatiated on the difficulty with which any foreign power could maintain a force on our coast. Mr. HOLLAND did not profess to have much knowledge on this subject, but he said it did not require much to overthrow the arguments of gentlemen on the subject. What defence a few frigates would be to the extensive coast of this country, he could not understand. There certainly never had been a time when this country should rely on a maritime force as a sufficient protection. Indeed, he said, if we had fifteen or twenty or more sail-of-the-line, he should hesitate much before he would go to war with Great Britain, because these would undoubtedly be lost. Our power of coercion was not on the ocean. Great Britain had possessions on this continent which were valuable to her; they were in the power of the United States, and the way to coerce her to respect our rights on water, would be attacking them on land. He said he certainly did not undervalue the disposition and prowess of our seamen; and it was because he valued them, that he did not wish them to go into an unequal contest, in which they must certainly yield. Gentlemen might understand naval matters; but it was no reason that they should therefore understand the efficiency of a naval force. There was sufficient evidence in history to warn the United States against it. Mr. TROUP said he rose but for the purpose of stating facts which struck him as being applicable to the subject before the House. He referred chiefly to an extract of a letter written to himself and published in the paper of to-day. [Mr. T. then read the extract which appeared in the National Intelligencer on the 9th instant.] In addition to these facts, letters had been received, in the course of this morning, containing further particulars, which he begged leave to state to the House. After the officer (commander of a British armed vessel) had been forced on board his vessel, and while lying in our waters and within our jurisdiction, he had fired several shots at pilot-boats, passing and repassing, had been very abusive, and threatened the town with what he called vengeance; and, in addition to these facts, letters had reached Savannah from Liverpool, giving satisfactory information that vessels of fifteen or twenty guns had been fitted out for the purpose of forcing a cotton trade with South Carolina and Georgia. This information, Mr. T. said, came from unquestionable authority. And it was because he was unwilling that the people of this country should longer submit to the abuse of British naval officers; because he was unwilling that they should be exposed to the insolence of every British commissioned puppy who chose to insult us; because he was unwilling that armed vessels should force a cotton trade, when every man knew that nine-tenths of the people of Georgia would treat as traitors the violators of the embargo; it was for this reason that he was disposed to vote for the amendments from the Senate. The great objection which had been taken to them was the expense which they would produce. Economy, Mr. T. said, was a good thing in time of peace; but if this contracted spirit of economy predominated in our war councils, if we were forced into a war, so help him God, he would rather at once tamely submit our honor and independence than maintain them in this economical way. If we went to war, we ought not to adopt little measures for the purpose of executing them with little means; neither should we refuse to adopt great measures, because they could not be executed but with great means. It was very true that, in war as well as in peace, calculation to a certain extent was necessary; but, if they once resolved on an object, it must be executed at whatever expense. He was no advocate for standing armies or navies, generally speaking; but, in discharging his duties here, he must be governed by the circumstances of every case which presented itself for his decision, and then ask himself, Is it wise, politic, and prudent, to do this or omit that? He said he would never go back to yesterday to discover what he had then said or done, in order to ascertain what he should now do or say. Political conduct must depend on circumstances. What was right yesterday might be wrong to-day. Nay, what was right at the moment he rose to address the House, might, ere this, be palpably wrong. Conduct depended on events, which depended on the folly or caprice of men; and, as they changed, events would change. It might have been a good doctrine long ago that this country ought to have a navy competent to cope with a detachment of the British navy; it might have been good doctrine then, but was shocking doctrine now. At that time England had to contend with the navies of Russia, Denmark, France, Holland, Spain, &c. Now England was sole mistress of the ocean. To fight her ship to ship and man to man, and it was impossible that gentlemen could think of fighting her otherwise, if they fought her at all, we must build up a huge navy at an immense expense. We must determine to become less agricultural and more commercial; to incur a debt of five hundred or a thousand million of dollars, and all the loans and taxes attendant on such a system, and all the corruption attendant on them. He should as soon think of embarking an hundred thousand men for the purpose of attacking France at her threshold, as of building so many ships to oppose the British navy. It was out of the question; no rational man could think of it. But that was not now the question. It was, whether we would call into actual service the little navy we possessed. It was not even a question whether we would have a navy at all or not. If that were the question, he would not hesitate to say that even our present political condition required a navy to a certain extent, to protect our commerce against the Barbary Powers in peace, and in time of war for convoys to our merchantmen. He only meant a few fast-sailing frigates, such a navy as we have at present, for the purpose of harassing the commerce of our enemies also. He therefore thought our present naval force ought to be put in service. As far as the appropriation ($400,000) would go, it would be employed; but if Congress should hereafter see cause to countermand or delay the preparation, they would have it in their power to do so by refusing a further appropriation. Mr. D. R. WILLIAMS said it was his misfortune to differ with gentlemen upon all points on the subject of the navy. He was opposed to it from stem to stern; and gentlemen who attempted to argue in favor of it as a matter of necessity, involved themselves in absurdities they were not aware of. When money had been appropriated for fortifications, there had been no intimation that it would be necessary to prop them up with a naval force. If our towns could not be defended by fortifications, he asked, would ten frigates defend them? The gentleman from Massachusetts (Mr. STORY) had even gone so far as to say that a single gunboat could sweep one-half of our harbors. If a single gunboat could now sweep most of our harbors, Mr. W. said he should like to know what eleven hundred and thirty vessels of war could do, even when opposed by our whole force of ten frigates! The gentleman from Massachusetts had said it would be cheaper to keep these vessels in actual service than in their present situation. Mr. W. said he supposed that the gentlemen meant that they would rot faster in their present situation than if they were at sea. He said he was for keeping them where they were, and would rather contribute to place them in a situation where they would rot faster. Mr. W. combated the arguments that employing the navy would afford relief to our seamen, and that the maintaining a navy on our coast would be more expensive to an European power than the support of a larger naval force by us. And he said we should never be able to man any considerable fleet except the constitution were amended to permit impressments, following the example of Great Britain. The gentleman from Massachusetts (Mr. STORY) had said that except we begun with this bill, and got his fast-sailing frigates, we should never regain our rights. If that were really the case, Mr. W. said he was ready to abandon them. He considered that the sort of maintenance of our rights adverted to by the gentleman from Massachusetts, would be destructive to those rights. Gentlemen must have forgotten that when Hamburg was in the greatest state of prosperity, she did not possess even a single gunboat. Why! there was not wealth enough in this whole nation, if every one were to carry his all, thus to maintain our rights against the navy of Great Britain. If we were carried into a war, and every thing really seemed to be tending that way, we must rely upon the enterprise of our citizens; and that, when set at liberty, would be found more desperate than the navy of any country. When we arrived at the end of the Revolutionary war we had but one frigate, and the best thing we ever did was to give that one away. The State of South Carolina had not yet got clear of the curse. She embarked one frigate in the general struggle, and she had not rid herself of the debts incurred by it yet. Private enterprise must be depended upon. The people from the Eastward had shown in the last war what they would do. When vessels were loaded with sugar they would fight like bull-dogs for it. He recollected a story, he said, of one of our privateers being beat off by a Jamaica man, whom they attacked. The captain not liking to lose the prize, and finding his crew disheartened, told them she was full of sugar. "Is she?" said they, "by G--d; let us at them again." They scarcely ever failed in their enterprises. In allusion to the case at Savannah, Mr. W. regretted that an insult should be offered to the people of the country. The insult at Savannah had by this time been redressed, he had no doubt. He had no information to induce him to believe so, but the knowledge that the sloop-of-war Hornet was stationed off Charleston, and of course cruised near the place. The Hornet was perfectly adequate to drive any vessel of twenty guns out of our waters. She was one of the best vessels of the United States, and as well officered as any. [Mr. TROUP observed that the Hornet was off Charleston. Now, he wanted a frigate at Savannah.] Mr. W. said that Savannah was the very place where gunboats would be perfectly effectual. He meant to make no reflection against the proposer of the gunboat system, but he did against those who had only given one-half of the system, and omitted the other--the marine militia. And now, when an attack was menaced at Savannah, gentlemen wanted a frigate! If nine-tenths of the people were opposed to the evasions of the embargo law, Mr. W. said it would not be evaded. The evaders would be considered as traitors--as the worst of traitors. As to preparing a force for the protection of navigation, the gentleman from Georgia must well know that the whole revenue of the United States would not be competent to maintain a sufficient number of vessels to convoy our merchantmen. Mr. W. concluded by saying, that he wished the nation to be protected, and its wrongs to be redressed; but when he reflected that at Castine the soil had been most abominably violated, he could not view the insults in our waters as being equal to it; for, said he, touch the soil and you touch the life-blood of every man in it. Mr. DURELL considered the present subject as one of the most important which had been introduced at this session. It would indeed be difficult to reason gentlemen into a modification of a principle to which they were opposed throughout; but he trusted that this House was not generally so disposed. He believed that a large majority of the House were at the present moment in favor of embargo or war, because the House had been so distinctly told by a committee on our foreign relations, that there was no alternative but submission; and almost every gentleman who had the honor of a seat within these walls, had committed himself on the subject, either to persevere in the embargo or resort to war. What would be the object of a war? Not the right of the soil, not our territorial limits, but the right of navigating the ocean. Were we to redress those wrongs, those commercial injuries, on the land? Not altogether, he conceived. Would it be good policy, he asked, to let our means of carrying on war on the ocean rot in our docks, and not make use of them? These vessels would also be useful as a defence. Why then should they not be manned and put in readiness for service? It was said that we could not cope with the British navy. Mr. D. said this argument proved too much, if it proved any thing. If he did not feel perfectly comfortable in a cold day, should he therefore divest himself of all clothing? Why send out the sloop of war Hornet, alluded to by the gentleman last up--why rely upon it for redressing the insult at Savannah, if naval force was useless? It was no reason, because Great Britain had more vessels than we, that we should not use what we had. Indeed, those gentlemen who objected to naval force, appeared to be mostly from the interior, and of course could not properly estimate its value. Mr. SAWYER was wholly opposed to the amendments from the Senate. The objection to this particular increase of naval force on the score of expense, was not to be disregarded. He called the attention of gentlemen to the state of the Treasury. The expense of this system would be three millions; and when this sum was added to other sums which would be requisite if measures now pending were adopted, it would render it necessary for Congress now to borrow money on the credit of posterity. The expedient of direct taxation would not be resorted to. It had already been the death-blow to the political existence of one Administration. This Government, he said, was founded on public opinion, and whenever the approbation of the people was withdrawn, from whatever cause, the whole superstructure must fall. Mr. S. dwelt at some length on the disadvantage of loans. He said, if this nation was destined to raise a navy for the protection of commerce, it should have begun earlier, in the year 1793, when such outrageous violations had been committed on our commerce. The expense of such an establishment would have far exceeded the amount in value of captures made since that period. He concluded, from a number of observations which he made on this subject, that, on the score of the protection of trade, it would not be proper to fit out a navy. This proposition, he said, was the mere entering-wedge. The system was either unnecessary, or would be wholly futile in practice. Our seamen would cost us at least double of what is the expense of her seamen to Great Britain; and it required her utmost exertions to pay the interest of the enormous debt with which her unwieldy navy had saddled her. He therefore certainly thought that an attempt to justify it on the score of profit would not succeed. He deprecated the extension of Executive patronage, which would result from an increase of the Naval Establishment. Need he go back, he asked, to the time when the black cockade was necessary, in some parts of the country, to secure a man from insult from the officers of the navy? He wished to limit the Executive patronage; to adhere closely to the maxims of our forefathers. By sending out a navy, too, he said, we should volunteer to support the ascendency of the British navy, become the mere jackals of the British lion. Mr. S. went at some length into an examination of the former Administration in relation to a navy. There was nothing, he observed, in the nature of our Government, or of our foreign relations, to require a navy. If we could not carry on foreign commerce without a navy, he wished to have less of it and more of internal commerce, of that commerce which the natural advantages of the country would support between different parts of it. If we were to build a navy for the protection of foreign commerce, we should throw away our natural advantages for the sake of artificial ones. He was in favor of the embargo at present. There was more virtue in our barrels of flour as to coercion than in all the guns of our navy; and we had lately given our adversaries a supplementary broadside, which he hoped would tell well. Mr. S. stated the origin and progress of navies at some length, commencing with the Republic of Genoa. Our chief reliance as to defence must be on our militia. So little did Great Britain now rely on her navy for defence of her soil, that she had called upon every man in the country to be at his post, if danger came. Other nations might be justified in supporting a naval force, because they had colonies separated from them by the sea, with whom they were obliged to have means of intercourse, but we had not that apology for a navy. Mr. S. concluded his observations, after speaking near an hour, not, he said, that he had gone through the subject; but, as it was late in the day, he yielded the floor to some other gentleman. Mr. J. G. JACKSON said, that gentlemen should not be influenced, in discussing the present question, by a belief that they were now discussing the propriety of raising a naval force for offensive purposes. This was not the question. It was only whether, at this crisis, the House would employ a little force for the purpose of resisting attacks made on our territory at home. The gentleman from South Carolina (Mr. WILLIAMS) had said that an attack on the soil touched the life-blood of every man in it. Yes, Mr. J. said, it did; whether the invasion was on our jurisdiction, on land or water, it touched equally the life-blood of the nation. He would as soon resist an attack on our territorial jurisdiction on sea as on land. It made no difference with him whether a foreign frigate came up to the piles of Potomac bridge and fired over into the town, or whether its crew came on shore and assaulted us with the bayonet. The territory, he said, was equally invaded in either case. Were we not to resist Great Britain because of her 1,130 sail of armed vessels? This would amount to a declaration that we must succumb to her, because she could at any time send a squadron sufficient to destroy our naval force at a single blow. This was the tendency of the argument. Mr. J. said it would be more honorable to fight, while a single gun could be fired, notwithstanding her overwhelming force. This mode of reasoning had a tendency to destroy the spirit of the people. He would never consent to crouch before we were conquered; this was not the course of our Revolutionary patriots, and he trusted it was one which we should not follow. He would rather, like the heroic band of Leonidas, perish in the combat, although the force of the enemy was irresistible, than acknowledge that we would submit. This naval force was not, however, intended to cope with the navy of Great Britain, but to chastise the petty pirates who trespassed on our jurisdiction; pirates, he called them, because the British Government had not sanctioned their acts. It had not justified the murder of Pierce, or asserted the right of jurisdiction claimed by an officer within the length of his buoys, &c., because, if she had, it would have then been war. For this reason he wished our little pigmy force to be sent on the ocean, notwithstanding the giant navy of Great Britain. Some gentlemen had opposed this on the score of expense. Our most valuable treasure, Mr. J. said, was honor; and the House had almost unanimously declared that it could not submit without a sacrifice of that honor. SATURDAY, January 21. _Extra Session._ On motion of Mr. SMILIE the House resolved itself into a Committee of the Whole on the bill to alter the time of the next meeting of Congress. Mr. J. G. JACKSON moved to strike out the "fourth" Monday in May, and insert the "last," stating as a reason, that as the Virginia elections took place in April, the Representatives could not arrive here in time. Mr. MACON wished a division of the question so as first to strike out, with a view to insert "September," instead of May. The motion to strike out was negatived--62 to 35. It was supposed that this question tried the principle of the bill. The committee rose and reported the bill. Mr. D. WILLIAMS moved to strike out May for the purpose of inserting "September." Mr. MILNOR hoped the motion would not be agreed to. If the new Congress could commence its session on the 4th day of March next, he said he should think it extremely proper that it should do so. And, if he could think that the majority would fix an earlier day than the fourth Monday of May for the meeting, he should vote for the present motion. He agreed with gentlemen that this was a momentous crisis; that the country was in a situation of extreme difficulty and danger. It appeared to him, therefore, that Congress, who were the guardians of the public welfare; to whom were confided the destinies of the nation, so far as the nation could control them, should be constantly in session, till a more favorable state of affairs took place. It was possible, but was it probable that any event would occur to alter our situation for the better? There was no hope that the belligerents would recede from their injurious restrictions on our commerce. It was not probable that any thing would occur which would do away the necessity of an extra session. The present Congress having determined to persevere in the embargo and the present system of measures a while longer, the peace and welfare of the country required that a different system should be adopted. The present had been sufficiently tested, and would never produce those effects anticipated from it. It was proper that an early opportunity should be given to the next Congress to approve the present system, or give it up and adopt some other in its stead. Mr. D. R. WILLIAMS said he was opposed to Congress coming here at the time proposed. Why should they come here then? He wished some one to answer, and let him understand why they were coming. In his opinion there was every possible objection to such a procedure. On the fourth day of March, a new President comes into power. Is it not presumable that the President would choose to have some communication with our Ministers abroad before the meeting of Congress? Could any man say that it was not proper that he should have it? Mr. W. said he hoped that the President would send special messengers, unfashionable as that policy was. If you are willing to wait for a declaration of war till the fourth Monday in May, will there be any necessity of declaring it before the first Monday in June or July? You have suffered the public mind to assuage in its resentment, and I very much doubt, that before a full experiment be made of the embargo, it will be wholly allayed. It has been said through the nation, and indeed avowed on this floor, that the Administration does not wish for peace. Having failed to take hold of the affair of the Chesapeake for a declaration of war, you have nothing now to give the people that interest which I hope they always will have in a declaration of war. Suppose you were to send special Ministers, and they were to be treated as our Ministers to France were under a former Administration, would not this treatment make every man in the nation rally around you? Would it not prove beyond doubt that the Administration was sincere in its wishes for peace? Undoubtedly it would. Why are your Ministers now loitering in foreign Courts? With a hope of accommodation, sir, I would send other Ministers there, and if they failed of immediate accommodation, would order them all home. If they are compelled to return, you will have the whole nation with you, which you must have when you go to war. Mr. J. G. JACKSON replied to Mr. WILLIAMS. The gentleman had asked emphatically why Congress should convene here in May. Occurrences of every day, said Mr. J., are presenting themselves in such a way as to render it highly important and necessary that some other ground should be taken. Are we to adhere to the embargo forever, sir? I have said, and again say, that a total abandonment of the ocean would be submission. I think, by passing this bill, we give the nation a pledge that it shall be the _ne plus ultra_, which shall give to foreign nations time to revise their conduct towards us, and will give them time to consider whether or not they will have war with us. The gentleman wants a special mission. Sir, are we to continue in this state any longer? Shall negotiation be spun out further? No man can doubt the capacity of our Ministers abroad, and their disposition to represent their Government correctly. The doors are shut in the face of our Minister at the Court of St. James, and worse than shut at the Court of St. Cloud--for, from the latter, contemptuous silence is all the answer we have received, if indeed silence can convey an answer. Are we to renew negotiation, then, when every circumstance manifests that it would be useless? Need I refer to what took place the other day--I allude to the publication of a letter by Mr. Canning, in a highly exceptionable manner, through Federal presses, or presses more devoted to the interests of that country than any other? One universal burst of indignation accompanied the publication of that letter in this House. And are we, under such circumstances, to renew negotiation by extra missions? I conceive that the cup of negotiation and conciliation is exhausted to the dregs, and that we should but further degrade ourselves by sending further extra missions. It has been stated to me that a proposition had actually been reduced to writing by a member of this House the other day for sending away foreign Ministers and calling our Ministers home, and I am sorry that the proposition was not offered to the House, for, under present circumstances, it might not have been improper to have adopted it. Mr. SMILIE said, if there were no other reason, the present suspension of commerce, and discontents at home, were sufficient reasons for calling Congress earlier than the first Monday in December. When the new Administration should come into office, it was proper that they should have an opportunity of meeting Congress as early as possible. It was his opinion that, at the next session, a change of measures would take place. What would be the substitute for the present measure he could not say; but, at this time, he must say that he could see no way of avoiding war. With regard to extra missions, he really had no idea of a measure of that kind. If there should be any other means to secure the interest and honor of the nation but war, he hoped in God that it would be adopted, but he did not now see any such prospect. Mr. RHEA, of Tennessee, said it was of no importance in the consideration of the present question what the next Administration should think or do. He wished that there could be an understanding with foreign nations for our good, but he much doubted such a result. He would not undertake to say whether war, or what other measure, ought to be adopted at the extra session; but, it was his opinion, that Congress ought to meet, and he should vote against every proposition going to defeat the object of the bill. Although this nation had not immediately retaliated the attack on the Chesapeake, would any man rise on this floor and say that the act of dishonor was done away because the House refused immediately to avenge it? He believed not; and, as long as it remained unatoned, it was cause for this nation to act. The only question for the House now to determine was this: Are there reasons to induce gentlemen to believe that a meeting of Congress is necessary on the fourth Monday of May next? As it appeared to him that such reasons did exist, he said he was bound on his responsibility to vote for the bill. Mr. DURELL asked if gentlemen meant to continue the embargo forever. He believed somewhat in the doctrine that an explosion might take place under it in a certain portion of the country. Gentlemen said an extra session was, therefore, necessary to save the nation. Mr. D. asked if the nation was to be saved by long speeches? He had seen almost two whole sessions of Congress pass away, the one of six months, the other of three, and the nation in the same situation still, and still told, in long stories, from day to day, that it was in a critical situation. He had no idea that the nation was to be saved by much speaking. He did firmly believe, that more than forty-eight hours would not be necessary to pass all laws to meet the impending crisis. If a declaration of war was thought proper, this would be sufficient time for it; if an extraordinary mission, as suggested by the gentleman from South Carolina, forty-eight hours would be time enough for the House to decide on recommending it. The present was a state of suspense, from which the nation ought to be removed, and he was unwilling to prolong this state by the passage of the bill. Mr. BURWELL said he was one of those who would vote for an earlier meeting of Congress than usual. In Great Britain, in whose government there were some features approximating to ours, there was always an uneasiness, lest the Parliament should not meet often enough. Whence could be the objection to Congress meeting at an earlier day? If the public sentiment was not then prepared for war, it would not be adopted. It appeared to him that an early session, instead of producing mischief, would essentially contribute to tranquillize the minds of the people. If peace was attainable, we must have peace; but if not, we have no choice but war. The gentleman from South Carolina suggests the propriety of sending a special mission, said Mr. B. Let me ask him, if Administration should not take this course, whether it would not be perfectly proper that Congress should be in session? Certainly it would. With respect to a special mission, Mr. B. said he was perfectly at a loss to conceive what could be the nature of any proposition which could be made to Great Britain. A proposition had already been made to her, in effect, to go to war with her against France, and insultingly refused; for no other interpretation could be made of the offer to suspend the embargo, if she would rescind her Orders in Council, except Mr. Canning chose to misunderstand everything that could be said. Unless gentlemen would point out some new proposition, which could be made to Great Britain or France, he could not see the propriety of the course recommended. As to the continuance of the embargo, Mr. B. said it seemed to be perfectly well understood by every man, that when the Government determined on that course, it did not determine to persevere in it eternally. If it could be made manifest to him that any particular favorable consequence would be produced by postponing the session beyond the fourth Monday in May, he might be induced to accede to it. As to the disposition of the Administration to preserve peace, could the gentleman conceive it possible to remove the impressions of those who were determined not to be convinced? This nation had sued for peace, but in vain; they had offered to give up almost every thing in contest, if Great Britain would yield a thing which neither Mr. Canning nor any other member of the British Government ever said they had a right to do, and which was only justified on the ground of necessity. There was therefore no plausibility in the assertion that peace had not been earnestly sought for. Mr. G. W. CAMPBELL said that if nothing occurred between this time and the time proposed by the bill for the next meeting of Congress, which would particularly render a change necessary, he was yet of opinion that it would be then necessary to change our situation; for this reason: that at that period, time sufficient would have elapsed to give us information as to what ground Great Britain would take, after she had heard of the position which Congress had maintained. After that ground was taken, Congress would know how to act. I never voted for the embargo as a permanent measure, said Mr. C., nor did I ever use an expression which would authorize such a supposition; nor do I suppose that any other gentleman entertained such an idea. As to a special mission, I should as soon think of sending a special messenger to the moon as to Great Britain or to France, for the cup of humiliation is exhausted already, and I will never put it in their power to offer us another cup. Mr. MACON said he had not intended to have said any thing, but that the gentleman from Virginia (Mr. BURWELL) had broached a doctrine which he did not approve--that this Government was like that of Great Britain. Mr. BURWELL explained that he had said that the Governments were, in some of their features, alike. Mr. MACON said that the reason of the fear in Great Britain that the Parliament would not meet often enough, was extremely obvious. The only voice which the people had was in the House of Commons, and they wanted them to be always in session, to keep the King and nobility off from them. In Great Britain the King dissolved Parliament at his pleasure. Here, he said, there was no power to dissolve Congress. Indeed, there was no similarity in the two Governments. He said he had no fear of any mischief being done by Congress meeting earlier; but he was opposed to their meeting earlier, because they would do more good by staying away. Could any man say what would take place between this day and the third of March? And yet the House were now called on to determine on an extra session. He was for giving such time, after the deliberations of the present session closed, as that Great Britain might see what we had done, and consider whether she would retract or go to war, for if she did not retract, war must be the consequence. Mr. M. said he would give every opportunity for peace; he would not be for hurrying the matter. He had no opinion that Congress being in session would have any effect on the people. The cry of an intention to destroy commerce was not to make him do a single thing which he would not otherwise do. No man can believe that we who raise produce should wish it to lie on our hands, as is now our situation. It is maritime rights for which we contend. For these we planters are making sacrifices, and we know it. As to the grower it is immaterial in point of interest into what ship or wagon his produce goes; but he is contending for the interests of his mercantile brethren. A great deal has been said about repealing the embargo to put an end to discontents. Let gentlemen beware of it, lest in trying to please everybody, they please nobody. Let us do what is right, that is the only ground for us to take. Whenever we begin to temporize, that principle is abandoned. I disagree with the gentleman from Tennessee as to the expediency of continuing the embargo; I do not believe that it would be inexpedient to try it beyond May. I believe we ought to try it beyond September. This is my opinion. What effect do gentlemen expect that the embargo will have had in May? Not more than at this moment. While every day from that time till September, it will be more and more effectual. I never voted for it as a permanent measure; but my opinion was, as I stated it, that it might be necessary to hold on to it for one, two, or three years. I might be wrong, but this was my opinion then, and I have not changed it. As to an extra session, I have never thought of it; but I am willing to leave it to the Executive. It has been so suddenly suggested, however, that I would not undertake to decide positively on the subject. I should rather incline to let them send to us now; we have sent to them long enough. As to the people being tired of the embargo, whenever they want war in preference to it, they will send their petitions here to that effect. When gentlemen from the Eastern States say, that the people there are tired of it, perhaps they speak correctly. As to all the talk of insurrections and divisions, it has no effect on me. When the sedition law was passed under the former Administration, it was said that the people would not bear it. I thought then as now, that the elections would show their disapprobation, and that they would manifest it in that way alone. When the people are tired of the embargo, as a means of preserving peace, they will tell you so, and say, "Give us war!" But none have said so; and yet, sir, I know well that myself and some others are blamed for our adherence to this measure. I can only say, that it is an honest adherence. I do believe that the continuance of that measure, with the addition of a bill now on your table, (non-intercourse bill,) is the best thing you can do; and if I thought that Congress would declare war in May, I should be much more averse to meeting then than I am now; but I do not believe it will. The question was now taken on the motion of Mr. D. R. WILLIAMS to strike out the words "fourth Monday in May," and lost. No other amendment being offered to the bill, it was ordered to be engrossed for a third reading. The bill being brought in engrossed, a motion was made that the same be read the third time to-morrow: and the question being put thereupon, it passed in the negative. A motion was then made by Mr. SMILIE, that the bill be now read the third time; and the question being taken thereupon, it was resolved in the affirmative. The said bill was, accordingly, read the third time: Whereupon, Mr. SPEAKER stated the question from the chair, that the same do pass? And, the question being taken, it was resolved in the affirmative--yeas 80, nays 26. MONDAY, February 6. _Presidential Election._ Several petitions having been presented, in addition to those heretofore stated, against the mode in which the late election in the State of Massachusetts was conducted-- Mr. BACON offered the following resolution: _Resolved_, That the Clerk of this House do carry to the Senate the several memorials from sundry citizens of the State of Massachusetts, remonstrating against the mode in which the appointment of Electors for President and Vice President has been proceeded to on the part of the Senate and House of Representatives of said State, as irregular and unconstitutional, and praying for the interference of the Senate and House of Representatives of the United States, _for the purpose of preventing the establishment of so dangerous a precedent_. Mr. J. G. JACKSON said he saw no objection to the resolution, or even to going farther than it proposed. The constitution had declared that the election of Electors in each State should be held in such manner as the Legislature should direct; and, he said, he never could consent to the doctrine that any set of men, without the authority of law, could make an election of Electors. He believed that the case was not provided for; and as the present case could not vary the general result of the Presidential election, gentlemen appeared not to be disposed to interfere in it. But, he hoped it would operate on the House to induce them to consider the propriety of providing some mode of hereafter distinguishing between legal, and illegal or surreptitious election. Mr. VAN HORNE moved to strike out the words in _italic_, as he understood them as committing the House to express an opinion on the subject of the petitions. Motion lost--yeas 18. _Opening and Counting the Electoral Votes for President and Vice President._ Mr. NICHOLAS offered the following order: _Ordered_, That a message be sent to the Senate to inform them that this House is now ready to attend them in opening the certificates and counting the votes of the Electors of the several States, in the choice of a President and Vice President of the United States, in pursuance of the resolution of the two Houses of Congress of the 7th instant; and that the Clerk of the House do go with the said message. Mr. RANDOLPH said it had sometimes been the case, he did not say it had been the practice, that this House had met the other branch of the Legislature in their Chamber, for the purpose of counting the votes; in which cases, very properly indeed, this House being in the Chamber of the Senate, the President of that body had taken the chair. Mr. R. said he now understood that it was proposed, without any vote of this House for the purpose, that the President of the Senate was to take the chair of this House; that the Speaker was to leave the chair, to make way for the President of another body. To this, he, for one, could never consent. I conceive, said he, that such a proceeding would derogate, very materially, from the dignity, if not from the rights of this body. I can never consent, Mr. Speaker, that any other person than yourself, or the Chairman of the Committee of the whole House, should take the chair, except by a vote of the House. I hope, therefore, that this matter may be well understood. I conceive it to be a respect which we owe to ourselves, and to the people, whose immediate representatives we are, never to suffer, by a sort of prescriptive right, the privileges of this House to be in anywise diminished, or its dignity to fade before that of any other assembly of men whatever. Mr. NICHOLAS said he was as unwilling as any other gentleman to surrender the privileges of the House. When assembled as the House of Representatives, he agreed that none but the Speaker should take the chair; but, on the occasion of counting out the votes, he did not consider the House of Representatives to be formed as a distinct body. In meeting on this occasion, he said, it always had been usual, since the establishment of the Government, for the Vice President of the United States, or the President _pro tempore_ of the Senate, to take the chair. There was, also, a propriety in this course, because, by the constitution, the Vice President is to open the votes. For twenty years the practice had been that the President of the Senate presided in joint meeting. Mr. NICHOLAS moved, in order to do away any difficulty in this case, that when the members of the Senate were introduced, the Speaker should relinquish the chair to the President of the Senate. Mr. DAVENPORT supported this motion. He had no doubt of the propriety of the President of the Senate presiding at a joint meeting, more especially, as he was the person designated by the constitution for counting out the votes. Mr. RANDOLPH said that if this course were taken, the Senate ought to be notified of this act of courtesy on the part of the House; if not, it might appear that the President of the Senate took the chair as a matter of right. He said he knew that, to many persons, matters of this sort appeared to be of minute importance, but in every thing touching the privileges of this House, as it regarded the claims of the other co-ordinate branches of the Government, he would stickle for the ninth part of a hair. It was well known that, in England, the privileges of the Commons had been gained inch by inch from the Kings and Nobles by a steady perseverance; and that man must have very little knowledge of mankind, indeed, who was not persuaded that those privileges might be lost, as they were gained, by gradual and imperceptible encroachment on the one hand, and tacit yielding on the other. This was not a matter of great consequence in itself; but power always begot power. It was like money, he said; any man could make money who had money. So any man, or body of men, who had power, could extend it. I have no objection, said Mr. R., very far from it, to the constitutional exercise of the powers and privileges of the Senate. Let their President count the votes, sir; there is a very good chair for him in which the Clerk now sits. But, on what principle is he to come into the House with the consciousness that he has a right to throw you out of the chair, sir, and take possession of it? I have no idea of suffering a man to come through those folding-doors with such a sentiment. If he comes into this House, he comes from courtesy, and cannot assume your chair, Mr. Speaker, as a matter of right, but as a favor. And, if the President of the Senate takes possession of your chair as a favor, it ought to be announced to the Senate as such; for, the mere vote on our side amounts to nothing, provided that he, and the body over whom he presides, come into this House under the knowledge, (without an intimation from us,) that you are to leave your chair, and he is to take possession of it. Mr. SMILIE observed that there was no fear of the privileges of this body being encroached upon by any other, for there was a written constitution, prescribing the powers of each body; and, at the same time that it was proper to be careful of their own rights, he said the House should be careful not to infringe on the rights of the other body. In respect to this question, there was a case in point. In one instance while Congress sat at Philadelphia, the Senate had come into the Representatives' Chamber to count out the votes, and the President of the Senate had taken the chair as a matter of right. We, said Mr. S., are sitting as a convention of the two Houses, for a special purpose, viz: to count out the votes. Who is properly the presiding officer in this case? Unquestionably the officer directed by the constitution to open the votes. And I consider the Speaker of the House, on this occasion, as acting in the same capacity as any other member of the House. After some further observations on the subject from Messrs. MASTERS, LYON, and MACON, the motion of Mr. NICHOLAS was agreed to--yeas 98. Mr. RANDOLPH then moved that the Senate be acquainted, by message, of this arrangement. Agreed to--yeas 73. The resolution first offered by Mr. NICHOLAS was then agreed to. On the suggestion of Mr. VAN DYKE, it was agreed that the members should receive the Senate standing and uncovered. The time for counting the votes having arrived, the members of the Senate, preceded by their Sergeant-at-Arms, entered the Representatives' Chamber, Mr. MILLEDGE, the President _pro tempore_, took the Speaker's chair, and the members took their seats on the right hand of the chair. The tellers were ranged in front, and the Clerks of each House on the right and left of the tellers. The President of the Senate opened the electoral returns, one copy of which was handed to the teller of the Senate, Mr. S. SMITH, who read it; the tellers of the House, Messrs. NICHOLAS and VAN DYKE, comparing the duplicate returns handed to them. When this business, which occupied about two hours, was concluded, the tellers handed their report to the President of the Convention, who was proceeding to read it, when Mr. HILLHOUSE observed that the returns from one of the States appeared to be defective, the Governor's certificate not being attached to it. He thought that this might be as proper a time to notice it as any. Nothing farther being said on the subject, however, the President of the Senate read the following statement of the votes, as reported by the tellers: (For the statement of the votes see Senate proceedings of the same day, _ante_, p. 27.) THURSDAY, February 9. _Non-Intercourse._ Mr. TAYLOR said it would be recollected that, in the course of the public business of this session, a resolution reported by a committee on our foreign relations arising out of a motion of a member from North Carolina, for the purpose of interdicting commercial intercourse with such belligerents as had in force decrees or edicts against the lawful commerce of the United States, had been agreed to and referred to the same committee, who had reported a bill for non-intercourse. This bill in fact, however, comprised but one-half of the whole subject embraced by the words "non-intercourse." The bill as reported to this House provided for the non-importation of the goods, wares, and merchandise, the growth and manufacture of these particular countries. That (said he) may be readily accounted for, from the circumstance that the House was then actually engaged in passing a law for the enforcement of the embargo, the committee therefore having only in view the other part of the question, so as to complete a non-intercourse. After that bill was reported, a gentleman from Tennessee, (Mr. RHEA,) in order that the whole might be incorporated into one, offered a resolution for that purpose. I did think it unnecessary at that time; but as the course of business seems to look towards a repeal of the embargo, in order that the whole subject of non-intercourse may be incorporated in the bill before the House, I move that the Committee of the Whole be discharged from the consideration of the bill, and that it may be referred to a committee, in order that it may be made in fact what the title imports it to be, completely, a bill for non-intercourse between this country and those nations having in force decrees affecting our neutral rights. The Committee of the Whole was discharged from the further consideration of the bill, ayes 72. The effect of the votes of this day, is to refer to the Committee on Foreign Relations, composed of Messrs. G. W. CAMPBELL, NICHOLAS, BACON, TAYLOR, FISK, J. MONTGOMERY, MUMFORD, CHAMPION, and PORTER, the several propositions for the repeal of the embargo, for arming the merchant vessels, for non-intercourse, for excluding armed vessels from our waters, and for declaring the first capture made in violation of the neutral rights of the United States to be a declaration of war, &c., with leave to report by bill. The chief argument in favor of this general reference was, that these propositions might be merged in one bill which should present a general system, and thus render less complicated the proceedings of the House on these resolutions. The main arguments against it were, that it would destroy all that had already been done in Committee of the Whole, and probably present a system at length to the House which would not be approved, and thus produce no other effect at this late period of the session than to protract discussion; and also that it would encourage that speculation now going on in the mercantile towns, and be ruinous to many men of moderate capitals who had embarked their all in the purchase of produce, in the certainty that the embargo would be raised on the 4th of March. TUESDAY, February 14. _Additional Duties._ The House resolved itself into a Committee of the Whole on the bill for imposing additional duties on all goods, wares, and merchandise imported into the United States. [This bill provides "that an additional duty of ---- per centum on the permanent duties now imposed by law upon goods, wares, and merchandise, imported into the United States from foreign ports or places, shall be laid, levied and collected upon all goods, wares, and merchandise, which shall, after the thirty-first day of January, 1809, be imported into the United States from any foreign port or place; _and a farther addition of ten per centum shall be made to the said additional duty in respect to all goods, wares, and merchandise, imported in ships or vessels not of the United States_; and the duties imposed by this act shall be levied and collected in the same manner, and under the same regulations, mode of security, and time of payment, respectively, as are already prescribed by law, in relation to the duties now in force on the importation of articles imported from any foreign port or place. That this act shall continue in force until the first day of April, 1810, and no longer: Provided that the additional duties laid by this act, shall be collected on such goods, wares and merchandise, as shall have been imported previous to the said day."] WEDNESDAY, February, 15. _Non-Intercourse._ On motion of Mr. NICHOLAS, the House resolved itself into a Committee of the Whole on the bill for interdicting commercial intercourse between the United States and Great Britain and France, and for other purposes. Mr. MILNOR moved to strike out the first section of the bill, with a view to try the principle of the non-intercourse system. In support of this motion, he alleged the impossibility of carrying the system into effect; for he conceived that the embargo had been ineffectual from the impossibility of carrying it into complete effect, and the proposed system would be as difficult to enforce. He thought that it would be impossible to carry a non-intercourse system into effect, as long as vessels were permitted to go to sea. He had many other objections to this bill, among which were these: that, although it raised the embargo only in part, the permission to vessels to go out, would render the provision for a partial embargo nugatory; that, if the bill were to pass in its present shape, it was to be doubted whether any revenue officer of the United States would understand the duty enjoined on him by it; that a time only two days previous to the meeting of the next Congress was fixed upon as the day upon which the non-importation should go into operation, and thus the bill appeared to manifest a distrust of that Congress, who certainly would be more competent than the present Congress to decide on its propriety at that time; that a non-intercourse between these countries, would but compel our citizens to pay a double freight to and from the entrepôt, without producing any other effect than injuring our own citizens; that goods from these countries, although their importation were interdicted by law, would be introduced nevertheless; that the extent of the territory and seacoast of the United States was so great that all efforts to interdict the importation of goods must be ineffectual, for they would be introduced contrary to law; thus depriving the United States of the revenue which would be derived from them, if their importation were permitted by law. Rather than accept this system, Mr. M. thought it would be better that this country should remain yet longer under the pressure of the embargo, which he had no doubt must be repealed early in the next session. Mr. QUINCY entered at considerable length into an examination of the system of coercion on foreign nations, by means of commercial restrictions. The idea of the efficacy of this system, he traced to a deeper root than any Administration under this Government. It was an error of the American people, originating in a period antecedent to the Revolution; it grew out of our colonial regulations. It began to be a favorite belief with the people, antecedent to the year 1760, and was then fostered by the patriots of that day, the idea being also encouraged by the patriots of England. Mr. Q. entered into a comparative statement of the exports from and imports to Great Britain from America at two different periods, viz: the nine years preceding the year 1775, and the nine years succeeding it, with a view to show that the average imports into Great Britain from all the world, during the nine years' peace with this country, amounted to about one-thirteenth more than the average imports during the same period of war; and the exports diminished, nearly in the same proportion. From his statements on this head and a comparison of the present relative situation of the two countries, Mr. Q. drew the inference that this supposed means of coercing the European powers, did not exist. He deemed it peculiarly unfortunate that a confidence in this power of coercion had so long existed, as it had prevented the United States from making preparations which they otherwise might have made. He hoped the idea would now cease. In relation to our present situation, he recommended a plain remedy, comprised in two words: "Follow nature." What did she first dictate for remedying any complaint? The removal of all obstructions on her operations. Mr. Q. therefore recommended the removal of the embargo, the repeal of the non-importation act, and the abandonment of the non-intercourse system. He wished "peace if possible; if war, union in that war;" for this reason, he wished a negotiation to be opened unshackled with those impediments to it which now existed. As long as they remained, the people in the portion of country whence he came, would not deem an unsuccessful attempt at negotiation to be cause for war; if they were moved, and an earnest attempt at negotiation was made, unimpeded with these restrictions, and should not meet with success, they would join heartily in a war. They would not, however, go to war to contest the rights of Great Britain to search American vessels for British seamen; for it was a general opinion with them that if American seamen were encouraged, there would be no occasion for the employment of foreign seamen. A removal of the embargo, without adopting any other measure, until the event of negotiation had been tried, Mr. Q. said, would first prevent any collision with the belligerents which might tend to embarrass negotiation; and, secondly, would give an opportunity to the country to ascertain what would be the practical operation of these orders and decrees, on our commerce; and give an opportunity to the next Congress to shape its measures according to their actual effect. If commerce did not suffer, the knowledge of this fact would supersede the necessity of any other measure, and peace would follow of course; if, on the contrary, a general sweep was made of all the property afloat, it would unite all parties in a war. Mr. Q. concluded a speech of two hours in length, by lamenting the state of the country, and invoking the spirit which "rides the whirlwind and directs the storm," to guide the nation to a happy result. Mr. NICHOLAS replied to the observations of Mr. QUINCY on the subject of the legal opposition to the embargo laws in Massachusetts. He said if the laws of the nation were to be resisted in the manner in which he lamented to say that he saw it contemplated in one part of the community, it became the duty of this Legislature to meet it; it was not compatible with their duty to shrink from it. He could not consent that thirteen or fourteen States should submit to one. As men vested with certain powers by the constitution, Congress could not transfer the powers to any State Legislature or to any town. In relation to negotiating with measures of coercion in existence, Mr. N. asked, when did the violations of our rights commence? So long ago that the precise time could not be fixed. When did our coercive measures commence? In 1806. Mr. N. noticed the negotiators during whose Ministry abroad these injuries had commenced, and continued. Mr. King, Mr. Monroe, and Mr. Pinkney, all honorable men, had successively represented the United States in Great Britain. And could any thing be gathered from any thing they had ever written or said, to induce a belief that this Government had not acted with sincerity? There was the most conclusive evidence to the contrary. Mr. N. said, he would ask nothing of Great Britain or France that would tend to sacrifice their honor; and he wished, when gentlemen dwelt so much on the regard of foreign nations for their national character, that they would respect a little the character of our own country. Mr. D. R. WILLIAMS said he had been decidedly in favor of issuing letters of marque and reprisal at once; he believed it would have cut off all that fungus matter now deteriorating the body politic--for the people of New England were as patriotic as any, and when the choice was between their own and a foreign country, they would cling to their own. It was the hot-bed politicians who stirred them up; and it was necessary to do something promptly to put an end to their intrigues. Mr. W. disliked the non-intercourse system throughout. If he could not get war, or a continuance of the embargo, he wished, inasmuch as Great Britain and France had each interdicted us from going to the other, to declare that neither their armed nor unarmed ships should contaminate our waters. This was a system which required no exertion of patriotism to carry into effect, which could excite no animosities between the North and South. In relation to the non-intercourse, he believed that it could not be enforced, and used a variety of arguments to show that it could not. If it could be enforced, he believed it would be prodigiously partial. If the embargo was to be taken off, and war not to be substituted; if the nation was to submit, he wished to do it profitably. If the embargo were raised as to a single spot, it was raised entirely to all effectual purposes. Then let your vessels go, said he, without let or hindrance; let them go and be burnt; your merchants will then feel that the embargo was a shield spread over them, and will come back to your protection, like the prodigal son, and unite like brethren in the common cause. Mr. W. said, his plan was to interdict the entrance of our ports to belligerent vessels, armed or unarmed, and lay a tax of fifty per centum on their manufactures. Great Britain must, then, either go to war or treat with us. If she was inclined to go to war in preference to revoking her Orders in Council, let her do so. But he was inclined to believe that she would treat. If she seized our vessels, however, the effect would be inevitable. Division amongst us would be done away, all would unite heart and hand in war. Mr. W. replied to a number of the observations of Mr. QUINCY, particularly in relation to his position that all obstructions ought to be removed with a view to negotiation. He asked, what security had the United States, if they did all this, if they submitted to such abject humiliation, that Great Britain would treat? Was it to be expected that she would treat more liberally with us, when we solicited as slaves, than she would while we magnanimously contended for our rights? The gentleman from Massachusetts, when repeating his creed, had forgotten a part, viz: "Unfurl the banners of the Republic against the imperial standard!" This would complete a project he had lately seen proposed from the East; and, as to its application, coinciding with the wishes over the water, would be just such a project as Mr. Canning might dictate. "Revoke your proclamation, remove the embargo," and "unfurl the republican banners against the imperial standard." Mr. W. concluded a speech of an hour and a half in length, with giving notice that he should move to amend the bill, when the present motion was decided, by striking out all that part of it relating to non-intercourse, and inserting a provision interdicting the entrance of our harbors to any vessels of Great Britain and France, and imposing an additional duty on all goods imported from those countries. When Mr. W. concluded, the committee rose, and obtained leave to sit again. THURSDAY, February 16. _Additional Duties._ The House resolved itself into a committee of the Whole, on the bill for imposing additional duties on all the goods, wares, and merchandise, imported into the United States. The bill was amended so as to take effect "from and after the passage thereof." The proposition offered by Mr. D. R. WILLIAMS, when the bill was before under consideration, was withdrawn. Mr. COOK renewed the proposition, viz: to confine the duties to be increased, to goods imported from Great Britain and France, and the colonies of either; and spoke an hour and a half in support of his motion, and in opposition to the non-intercourse system. He was in favor of discriminating duties, because he was opposed to the non-intercourse, which he considered the best means of depressing our navigating interest and advancing that of Britain; because the produce of the United States would be carried to some place of depot in the vicinity, and thence be carried to Europe in British bottoms, while a large proportion of American shipping would be inactive. He thought that, under the arming system, we could trade with at least as much honor and with much more profit than under the non-intercourse system. He contended that the non-intercourse system was precisely calculated to destroy that moral principle which had heretofore so strictly enforced our revenue laws; that the system of restriction was partial, operating so equally on the people of the South, that no individuals particularly suffered from it, while in the North and East individuals were ruined by it, and thus a general distress produced; that it would be the most discouraging act to the mercantile interest, ever passed by the Government, for it would throw the trade in all the produce kept in the country by the embargo into foreign hands at the expense of the American merchant; that the system could not be enforced with so extensive a frontier and seacoast as we possess; that it was a measure calculated to produce irritation on foreign nations, without having the least coercive effect; that it was a political suicide, without the consolation of company in it. Mr. C. was, with his constituents, in favor of further negotiation, and a firm assertion of our rights, which, if refused to be acknowledged, he would maintain. It was high time to abandon visionary schemes and impracticable projects, and to pass good, plain, common sense laws. He believed that this discrimination of duties and arming our merchant vessels would be such a law. He spoke more than an hour and a half. Mr. C.'s motion was negatived by a very large majority. The committee then rose, and reported the bill. The amendments made in Committee of the Whole were severally agreed to by the House; and, on the question that the bill be engrossed for a third reading, Mr. LIVERMORE called for the yeas and nays. There were for it 85, against it 27. _Non-Intercourse._ The House again resolved itself into a Committee of the Whole, on the bill for interdicting commercial intercourse. Mr. MILNOR'S motion for striking out the first section being under consideration-- Mr. NICHOLAS rose and addressed the Chair as follows: Mr. Chairman: I shall not conceal or disguise my opinion; it has been and continues to be, that when the embargo shall cease, war will be the only proper and honorable course for this country to pursue, if reparation shall not have been made for the injuries we have received. Under this conviction, I proposed a resolution limiting the duration of the embargo, and authorizing, at the same time, the issuing of letters of marque and reprisal. I trust, sir, I shall be pardoned for expressing the deep regret and affliction I feel for the failure of a measure so important in my judgment, to the best interests of my country. I voted for the embargo as a precautionary and as a coercive measure. In its first character, its wisdom must be admitted by all. Its effects as a coercive measure would, I believe, have been equally certain, if the misconduct of some of our own people, and the revolution in Spain, had not impeded its action. Unless we were determined to persevere in our claims for redress, and to assert our rights, the embargo, even as a measure of precaution, was unnecessary. It gave no protection to our property abroad, it gave it no security on its way home, it only preserved it after its return. When the injuries of which we complain were inflicted, our choice was between submission and resistance. We determined to resist, and commenced our resistance by laying an embargo, with the hope that it might of itself induce the belligerents to do us justice; and if this expectation were disappointed, that we might prepare for war, by preserving in our own possession our essential resources--men and money. If resistance was not our determination, I do not hesitate to say, that the embargo was unwise and unnecessary. If we intended ultimately to abandon our rights without another effort, we should have suffered less both in reputation and in property, by immediate submission, than by now receding from the ground we have taken. I do not believe that a single supporter of the embargo looked to it as the last resort of this country. For myself, I disclaim the impression, and declare that I was ready to abandon it for war, when its primary objects should be attained, and its coercive power fairly tested. I have stated that I considered the return of our citizens, the security of our property, and the employment of time in preparation for war, as the great and more certain effects of the embargo. All these advantages we have derived from it. I believe it is time to change our measures, and to place our future reliance upon Providence, and upon the energies and valor of our citizens. Upon this point, however, I think with a minority. There has been a vote of this House against immediate war. Under these circumstances what ought I to do? I must either vote against every expedient which falls short of what I deem the most proper course, or assent to that which accords most with what I think right. If it were my individual concern, I should certainly rely upon my own judgment: but when every thing dear to my country is at stake, I cannot justify to myself a pertinacious adherence to a proposition already rejected by a great majority, which would hazard the loss of a measure, the best, in my opinion, that can be obtained. After having offered what I thought the best, and seen it rejected, I think with the gentleman from South Carolina, that I am at liberty, and that it is my duty, to unite with others in support of attainable measures which appear to me to be conducive to the interest of the country. The bill upon your table appears to me to be such a measure. It maintains our attitude towards the belligerents better than any measure which I have heard proposed, and if it be not the most effectual resistance, at least, it is not submission. It continues our solemn protest against their violations of our rights; it takes new, and in some respects, stronger grounds against them. It excludes from our waters, ports, and harbors, all their vessels, public and private; it excludes from our country all their products and manufactures; and forbids our citizens to debase and degrade their country by a commercial intercourse which would stain and pollute them with the payment of an ignominious tribute to a foreign nation. It reserves the great question to be decided by the next Congress, which will be informed of the wishes of the American people; who can best determine how far they will submit to have their rights trampled on, at the will and pleasure of foreign nations. By keeping the question open for their discussion, I have the utmost confidence that our rights, honor, and independence, will be maintained. The gentleman from Pennsylvania asked yesterday, why not repeal the embargo laws, and provide for the enforcement of this system by a new law? In addition to the reasons I have stated, I will mention another, which has great weight. We are told that one of the States of this Union is about to pass a law, imposing penalties on persons employed in the execution of those laws within that State. I will never consent, under these circumstances, to adopt any measure which might wear the aspect of yielding to a threat like this. No man laments more sincerely than I do, that the Legislature of any State should take such a step, but I think it of the utmost importance that the Government of the United States should maintain its authority, and that it should be ascertained whether its measures may at any time be embarrassed by the Legislatures of one or more States, or its laws annulled by their authority. Such could not, I believe, have been the impression either of the people or of the States when the General Government was formed; and if this conduct be persevered in or submitted to, it will, in effect, supersede the Government, and must speedily terminate in its dissolution. I hope and trust that the wisdom and patriotism of the Legislature of Massachusetts will not permit such a law to be enacted. Otherwise, I do not doubt that the people at the Spring elections, will choose men solicitous to heal, by every means within their power, the wounds inflicted on the constitution. It is a painful duty to notice this subject. I have ever been devoted to the Union of the States. I would cherish and support it at every hazard, and would sacrifice to its preservation every thing but the rights and liberties of one section, in compliance to the wishes of another. On such conditions it would be vassalage, not union. To yield in the present instance, would be yielding the Government to a minority. It is not practicable, however, to act upon the subject during the present session, nor do I wish it. I have the utmost confidence in the people of Massachusetts, and have no doubt but that their good sense will apply the proper corrective. If they do not, it will then remain for the other States, after giving to the subject the solemn and deliberate consideration which it merits, to decide whether they have a Government or not, whether it is compatible with their happiness and interests to preserve a Government whose acts are binding on them only who are willing to obey them; whether they will submit that the public officers of the United States shall be punished for the faithful performances of their duty. I have confined my observations within as narrow limits as possible. It is not now necessary to speak of our injuries, of the necessity of resistance, nor even of the superior advantages of any particular mode of resistance; for it is, I believe, a very prevalent opinion in this House, as well as with the nation, that we have already deliberated enough, and that it is incumbent on us to act. I will, therefore, very briefly notice some objections I have heard to the bill. It is urged that our products will find their way to Great Britain and France, but certainly to Great Britain, by circuitous routes, and that we shall derive less profit from them on that account, than if a direct intercourse were permitted. This cannot be denied, nor is there a man who would not prefer a free trade with the whole world, if it could be enjoyed upon equal and honorable terms, to a commerce so limited and shackled as ours is at this time by the belligerent edicts. The question is not now how we can most advantageously avail ourselves of a momentary commerce, but how we can assert the national sovereignty, and best secure the permanent interests of the United States. No gentleman, I presume, will contend that it is better for us to permit a disgraceful intercourse with any nation, than to endure a temporary privation, until we can trade on fair and honorable terms. Gentlemen cannot delude themselves with any expectation of advantage from the commerce now allowed to us. The two most valuable products of this country must ruin and beggar those interested in their culture--I mean cotton and tobacco. It is well known that the quantity of tobacco annually produced, is fully equal to the annual consumption, and that we have now two crops on hand; while the edicts of Great Britain and France are continued, it would be folly to cultivate this plant, and it is more or less true of every other product of our soil. If we were at war with these nations, our products would reach them through the same circuitous channels into which they will be forced by this law, but certainly that consideration would not be deemed a good argument for permitting direct intercourse with our enemies. As to the difficulty of excluding their products and manufactures, it is very possible that we may not be able to do it entirely, but I am satisfied that we shall do it essentially. The great avenue through which British goods can be most easily smuggled into this country is Canada, and that, I doubt not, will soon be closed if the edicts be not rescinded. The present state of things cannot long continue; I have no hesitation in saying that it ought not, and that the next Congress must either abandon the contest, or resort to more effectual means for the maintenance of our rights than commercial restrictions and prohibitions. The gentleman from South Carolina, whose eloquence I admire, and whose patriotism I honor, speaks of this measure as submission, and considers that which he proposed as resistance--not indeed as the measure of his choice, but as the one which is next to it in his estimation. It must be obvious to the House, and I am sure it will be equally so to the gentleman himself, that if his system would be resistance, the course indicated by the bill has in that view superior merit. The gentleman acknowledges the principal advantage of his plan to consist in this, that it would deprive British vessels of the transport of our produce; if it can be shown that this object will be accomplished more effectually by the bill in its present form than by the proposed alteration, it is fair to expect for it his support. If this plan were adopted, Great Britain would regain her full share of the transport of our produce by augmenting the duties in favor of her own bottoms to an amount that would be an indemnity for a short voyage, by opening the port of Halifax, and another port at St. Mary's, to our vessels, and all that would then remain to our own vessels would be the profits of the coasting trade from our harbors to those ports of deposit. If I believed this course the most honorable and effectual mode of resisting, I would willingly embrace it; but, sir, I can never consent to any plan by which a direct commercial intercourse is to be produced between this country and Great Britain and France, while their edicts continue in force. Nor will I ever abandon the hope and belief that my countrymen possess the manly spirit of independence, the honorable pride and character which will disdain to barter for gold, or for a miserable fragment of commerce, those rights which were purchased by the valor and the blood of their fathers. The question was taken on striking out the first section of the bill and negatived--yeas 24. SATURDAY, February 18. Another member, to wit, MARMADUKE WILLIAMS, from North Carolina, appeared and took his seat in the House. _Clarkson's History of Slavery._ The SPEAKER laid before the House a letter from Thomas P. Cope, offering to the acceptance of Congress, in behalf of the American Convention for promoting the abolition of slavery and improving the condition of the Africans, lately assembled in the city of Philadelphia, a book, entitled "Clarkson's History of Slavery," which is requested to be deposited in the Library of Congress. The said letter was read; whereupon a motion was made by Mr. MILNOR, that the House do come to the following resolution: _Resolved_, That the Speaker be requested to acknowledge the receipt and acceptance of "Clarkson's History of Slavery," presented by the American Convention for promoting the abolition of slavery, and improving the condition of the Africans; and that the said work be deposited in the Library. And the question being put thereupon, it was resolved in the affirmative--64 to 16. _Non-Intercourse._ Mr. CLOPTON said: Mr. Chairman, being one of those who are not willing to exchange the embargo for the system of non-intercourse now proposed, I move you to strike out this section of the bill. In making this motion, sir, I cannot say that I entertain much hope of success, although indeed I do sincerely wish that the motion may prevail. It has been uniformly my opinion, sir, and still is, that the embargo ought to be adhered to until a majority of the great body of the people of the United States should prefer war itself to a longer continuance of it. I cannot perceive any middle course between those two alternatives, which can truly maintain the honor of the nation; and shall this nation descend from that ground to any degree of submission, either openly or covertly, to any nation on earth? God forbid, sir. Forbid it every thing that is dear and valuable to us as members of a free and independent nation! Long indeed has our country sought the establishment of neutrality, but sought it honorably. The great and prominent object with the United States, as to their exterior relations, always has been to maintain peace--but to maintain it honorably and consistently with the rights of the nation. In pursuit of this object Great Britain will receive the principal benefit of the trade, notwithstanding the prohibitions of this bill. If American vessels are permitted to go out at all, most of them will go, if not to British ports, to some particular ports, as has been observed, from whence Great Britain will finally receive their cargoes; and in a short time, perhaps, upon cheaper terms than they could be obtained for in our own ports; and I do not know what is to secure them from capture when bound to other ports, if they fall in with British cruisers, unless indeed they should go into British ports, pay the detestable tribute and accept licenses; and the law will be abundantly evaded by smuggling into the country articles of British manufacture--and no doubt, many of French manufacture too. Besides, sir, the consequence of this measure very probably will be war at last, and at no distant period; a war, too, which will commence under great disadvantages to our own country. In this situation of things, Mr. Chairman, under this accumulation of injuries, the measure of embargo was resorted to--a measure having in view a counteraction to the whole system of aggression carried on against the United States--a measure which has been pursued as a means of bringing about a relinquishment of that atrocious system on the part of the belligerents, and a redress of injuries inflicted on us, together with the preservation of peace. This measure has been thus far pursued for these great purposes; and it has been patiently borne with to this day, by the nation at large, the partial discontents which have appeared in some particular parts of the country only excepted. The nation at large has cheerfully acquiesced in the privations, the inconveniences, and the difficulties incident to such a state of things. It has exhibited a memorable example of self-denial in sustaining this situation, with a view to obtain redress of wrongs and recognition of its maritime rights, without a sacrifice of peace. With this object, fair and honorable negotiation has been resorted to from time to time for a series of years. By this means redress of wrongs has been repeatedly sought, and sought in vain. By this means the Government of the United States has exercised itself to procure relinquishment of outrages and violation of our neutral rights; but as often have all its efforts proved unavailing. No wrong redressed--no cessation of outrage yet appeared: on the contrary more numerous and more aggravated ones followed in quick succession. A long series of injurious acts, the offspring of new and (if possible) more atrocious principles than what constituted the pretended ground of former outrages, were pressed with accumulating weight into the train of former outrages, insomuch that those which followed after, taken along with those which had preceded, made up a combined system which threatened to sweep from the ocean almost every particle of canvas, and all the floating property of this great Republic. These, sir, are the objects for which this measure has been thus far and so patiently pursued. Great and momentous objects, and worthy of a great and magnanimous nation! Why, then, should it be now determined at all events to abandon this measure? Why should it be so determined, at a period of all others most propitious to the embargo, if continued and executed--a period, of all others, I think, best calculated to give it effect by this House manifesting a firm disposition to adhere to it? For, sir, I consider this as the most critical period, which could possibly arrive, as to the real effect of the embargo. I consider it as the most important period, at which the conduct of this House might render that measure effectually coercive, if it ever can be made so at all--and why, sir, do I think so? Because, in the first place, I conceive it cannot even be a question whether the British Government has not calculated on the discontents, which appeared in some particular parts of the Union, so as to derive at least some expectation therefrom that those discontents might make such impression on Congress as to induce them to raise the embargo in the course of this session. Those discontents, no doubt, excited grateful expectations of its removal. It is perfectly natural to suppose that such events taking place in any part of this country must have produced calculations of that sort. I cannot but believe, sir, that they have looked forward to the period of this session, with anxious solicitude, to mark the temper of Congress in relation to this very interesting subject; and, as they must have presumed that Congress could not view such serious events with indifference, some expectation that the effect might be so strong as to induce a repeal of the system could scarcely fail to be the conclusion. Such conclusion was to be expected, even if the extent of dissatisfaction had been fairly reported to them--even had it been in no degree misrepresented. But, sir, there are a thousand chances to one that the reports, which conveyed the information to that country, greatly exaggerated the facts--that the picture was drawn in much stronger colors than were consistent with the real truth--that the instances of discontent were stated not only to have been deeper in their nature than they really were, but that a much larger number of persons had partaken of it than really did--that a spirit of disaffection had spread itself far and wide. Not a shadow of doubt rests on my mind, sir, that, in all respects whatever, the unpleasant occurrences to which I have alluded, were greatly magnified. With these circumstances others have combined to render the embargo inefficacious as yet, or at least to prevent it from having its full effect. It is to be recollected, sir, that very soon after the law laying an embargo was passed efforts were made to render it unpopular and to excite dissatisfaction. Dissatisfactions were not only excited; but many unprincipled persons found means to evade the law and make exportations contrary to its provisions. Under a combination of circumstances, then, so encouraging to the hopes of the British Government as those must have appeared to them, the continuance of their Orders in Council until the temper of Congress, during this session, could be known to them, is not much to be wondered at. The hope of ultimate success in rendering our commerce tributary to them, which those circumstances, no doubt, contributed not a little to inspire, with such a government, was of itself sufficient ground to induce a continuance of those orders. Long experience of British policy, which the United States have had, justifies this opinion. Long experience of a systematic design in that government to shackle our commerce and subject it to their arbitrary restrictions, leaves no room to doubt of their disposition to pursue that design until the conduct of this Government should convince them of its total inefficacy to produce the object sought for. The slightest prospect of succeeding in their design, however delusive that prospect might be, keeps up their hopes until the delusion vanishes. It remains, then, for the Congress of the United States, at this very interesting crisis, to dispel that delusion by a firm adherence to this measure, and thus to disperse every gleam of hope which may have resulted from the circumstances of discontent which had appeared, and the evasions of the law which took place in the country. At this truly critical period, to which their anxious attention has been directed, let this body manifest an inflexible perseverance, and demonstrate to them that all their hopes, founded on those or any other circumstances, are vain indeed. Let it be demonstrated to them that this Government cannot only resolve upon, and carry into effect, measures of energy, though attended with inconveniences and difficulties, but that it can pursue such measures so long as they shall be deemed expedient for the object in view. Let every declaration and every conception concerning the American character, as a nation, in respect to its cherishing an overweening attachment to gain, so as to be willing to submit to indignities for the sake of it, be completely falsified. Let it be demonstrated, beyond a possibility of doubt, that there exists not in the great body of the people of this country any love of gain comparable to the love of real national independence and freedom; that this love of national independence and freedom animates the true American soul far beyond any other sentiment, and that, in support of it, the greatest sacrifices of interest are cheerfully acquiesced in. But, sir, what will be the inference drawn from this measure proposing a repeal of the embargo, as it does, after it shall have been adopted. Will it not justify assertions, that this Government has not stability or firmness enough to carry into effect energetic measures, or such as check the current of wealth for any considerable time from flowing into the country? Such assertions, or assertions to that effect, have, I believe, been frequently made; and they have been often repelled by words as slanderous reproaches on the Government. Sir, let us not take from them the demerit of being slanderous, by affording any ground for the justification. But I fear, sir, I greatly fear, that a repeal of the embargo laws, as now proposed, will go far towards justifying such assertions. This is a period of our political existence, Mr. Chairman, which renders firmness in the councils of the nation peculiarly requisite. The crisis is vastly momentous and trying, and attended with circumstances, both from within and from without, which strongly call for decision in the Legislature. The existence of the Government seems almost to depend upon their firmness and decision. Whilst the members of this body respect the rights of individuals, let them consider the consequence of being driven from a measure of great importance by the conduct of a small part of the community. It is the duty of each part equally to respect and obey the laws; and if apprehension of the consequence of a faction, clamoring against the acts of the Government, should deter it from pursuing its course, such would be an alarming manifestation of its weakness. Sir, I fear for the Government, almost to trembling. I feel emotions which I cannot express. It is at a point of awful trial and responsibility. The system which, it appears, is about to be abandoned, will be exchanged for a miserable one, which, on our return to our homes, will not draw on us many smiles. The motion of Mr. CLOPTON was negatived, 59 to 35. Mr. MILNOR moved to amend the same section so as to strike out the exception, and making the repeal of the embargo total. Mr. VARNUM supported this motion. If the non-intercourse system was to prevail, he thought it made much more intelligible to the revenue officers by repealing the embargo laws, and enacting the non-intercourse as a new system throughout. He spoke in favor of the repeal of the embargo laws, stating the evasions which had taken place, and that these evasions had not been confined to any particular section of the Union. He observed that a partial repeal of the embargo would destroy all the coercive effects of the measure, inasmuch as produce would be let out, and would find its way to every quarter of the world. Mr. V. observed that were the amendments agreed to, he should be ready to go with gentlemen in any other practicable measure which they would select for maintaining our rights. The motion of Mr. Milnor was negatived, 57 to 53. The committee then rose and reported the bill; and the House adjourned without considering the report. FRIDAY, March 3. _Adjournment._ A message was received from the Senate, stating that they had appointed a committee in conjunction with such committee as should be appointed by the House, to wait on the President of the United States, and inform him that they had concluded the business pending before them, and were ready to adjourn. A committee was appointed on the part of this House to join the committee of the Senate. Mr. SMILIE offered the following resolution: _Resolved_, That the thanks of this House be presented to JOSEPH B. VARNUM, in testimony of their approbation of his conduct in the discharge of the arduous and important duties assigned to him whilst in the Chair. Mr. ROWAN moved that it be postponed indefinitely. Messrs. ROWAN and LYON supported the motion; and Messrs. EPPES and JACKSON opposed it. The resolution passed, 68 to 9. The SPEAKER returned his acknowledgments to the House for this tribute of their approbation, as follows: _Gentlemen of the House of Representatives:_ The kind expression of your approbation of my conduct, in the discharge of the duties which you have been pleased to assign me as Speaker of the House, affords me that consolation which an approving conscience alone can surpass. You will please, gentlemen, to accept my thanks for the liberality and candor which you have uniformly manifested towards me: and be assured, that the friendly aid which I have experienced from you in the discharge of my official duty, has made a deep impression on the affections of my heart, which length of time cannot eradicate. Mr. CUTTS, from the committee appointed to wait on the President, reported that they had performed that duty, and that the President had informed them that he had no further communication to make. And the House adjourned _sine die_.[4] FOOTNOTES: [2] This ordinance of the Congress of the confederation, which became the basis of all the Territorial governments, was sanctioned by the Congress of the Union at its first session, with certain provisions added to it in order to give it full effect under the constitution. The following are the terms of this enactment:-- "WHEREAS that the ordinance of the United States in Congress assembled, for the government of the Territory northwest of the river Ohio may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the United States. THEREFORE, _Be it enacted_, &c., That in all cases in which, by the said ordinance, any information is to be given, or communication made by the Governor of the said territory to the United States in Congress assembled, or to any of their officers, it shall be the duty of the said Governor to give such information, and to make such communication to the President of the United States; and the President shall nominate, and by and with the consent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him; and in all cases where the United States in Congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same power of revocation and removal. SEC. 2.--_And be it further enacted_, That in case of the death, removal, resignation, or necessary absence of the Governor of the said Territory, the secretary thereof shall be, and he is hereby, authorized and required to execute all the powers, and perform all the duties of the Governor, during the vacancy occasioned by the removal, resignation, or necessary absence of said Governor." This act of Congress, passed to give full effect to this ordinance by adapting its working to the new Federal Constitution, was among the earliest acts of the Federal Congress, being number eight in the list of acts passed at the first session of the first Congress; and classes with the acts necessary to the working of the new government. As such it was modified; and as such preserved and applied to successive Territories, as governments for them were given. That ordinance is, in fact, the basis of all the Territorial governments, and is extended to each of them by name, with such modifications as each one required; and its benefits secured in their deeds of territorial cession by Georgia and North Carolina. Thus, the fifth clause in the first article of the Georgia deed of cession, dated April 24th, 1802, stipulates: "That the Territory thus ceded shall form a State, and be admitted as such into the Union, as soon as it shall contain 60,000 free inhabitants, or at an earlier period, if Congress shall think it expedient, on the same conditions and restrictions, with the same privileges, and in the same manner, as is provided in the ordinance of Congress of the 13th day of July, 1787, for the government of the Western Territory of the United States; which ordinance shall, in all its parts, extend to the Mississippi Territory contained in the present act of cession, that article only excepted which forbids slavery." The deed of cession from North Carolina, for the Territory since forming the State of Tennessee, and dated December ----, 1789, is equally express in claiming the benefits of this ordinance; so that, made before the constitution, it has been equally sanctioned by Congress and by States since. Virginia sanctioned it immediately after its enactment, and before the commencement of the present Federal Government, to wit, on the 30th day of December, 1788. The ordinance being thus anterior to the constitution, was not formed under it, but under the authority of owners--sovereign owners--exercising the right of taking care of their own property, subject only to the conditions and limitations which accompanied its acquisition. And thus the Territories have been constantly governed independently of the constitution, and incompatibly with it, and by a statute made before it, and merely extended as a pre-existing law to each Territory as it came into existence. [3] The 6th, being the Anti-slavery article. [4] This was the end of Mr. Jefferson's administration; and, notwithstanding the purchase of Louisiana, (the annual interest on the cost of which had to be paid,) and the greatly extended frontier which required to be guarded, the system of order and economy which he cherished enabled him to carry on the government (until the privations of the embargo and non-intercourse) without increase of duties, and with a moderation of cost which should form the study and the imitation of succeeding administrations. The duties remained at the same moderate rates as before--the _ad valorems_, 12-1/2, 15, and 20 per centum; the specifics (increased in number) were not increased in rate; the free list not only remained undiminished, but was happily augmented by the addition of salt. The average of the _ad valorems_ was still about 13 per cent., and almost all fell upon the 12-1/2 per centum class--the importations under the other two classes being inconsiderable, _to wit_, only about half a million, ($520,000,) subject to the 20 per centum; and only a little over nine millions under the 15 per centum; while the imports under the 12-1/2 per centum class amounted to above thirty-six millions of dollars. The articles used by the body of the people fell into this class, (the other two classes embracing articles which might be called luxuries,) so that 12-1/2 per centum upon the value may be considered as the duty which fell upon the country. The expenses of collection still remained at about 4 per centum, and the revenue cutter service (there being but little temptation to smuggle under such low duties) cost but a trifle; and the specific list being considerable, the number of custom house officers and agents was inconsiderable. The revenue collected from the _ad valorem_ duties was about seven millions of dollars; that from specifics about nine millions--leaving sixteen millions for the net revenue. Of that sum the one-half (just eight millions) went to meet the interest, and part of the principal, of the public debt. Of the remainder there went to the military and Indian departments about two and three-quarter millions; to the navy about one million; to tribute to Algiers, (masked under the name of foreign intercourse,) two hundred thousand dollars; and to the civil list, embracing the whole machinery of the civil government, with all its miscellaneous expenses, about nine hundred thousand dollars--leaving some two millions surplus after accomplishing all these objects. It was a model administration of the government. Mr. Jefferson's administration terminated the 3d of March, 1809, but its fair financial working ceased two years before--with the breaking up of our commerce under the British orders in council, and the decrees of the French emperor, and the measures of privation and of expense which the conduct of Great Britain and of France brought upon us. The two last years of his administration were a strong contrast to the six first, and a painful struggle against diminished revenue and increased expenses, injuries and insults from abroad, and preparation for war with one of the greatest powers in the world, while doing no wrong ourselves, and only asking for what the laws of nations and of nature allowed us--a friendly neutrality, and exemption from the evils of a war with which we had no concern. Preparation for war was then a tedious and expensive process; embargo, non-intercourse, fortifications, ships, militia, regular troops. All this is now superseded by railroads and volunteers, ready at any moment to annihilate any invading force; and by privateers, ready to drive the commerce of any nation from the ocean. ELEVENTH CONGRESS.--FIRST SESSION. BEGUN AT THE CITY OF WASHINGTON, MAY 22, 1809. PRESIDENT OF THE UNITED STATES,--JAMES MADISON. PROCEEDINGS IN THE SENATE.[5] MONDAY, May 22, 1809. Conformably to the act passed at the last session, entitled "An act to alter the time for the next meeting of Congress," the first session of the eleventh Congress commenced this day, and the Senate assembled in their chamber, at the city of Washington. PRESENT: GEORGE CLINTON, Vice President of the United States, and President of the Senate. NICHOLAS GILMAN and NAHUM PARKER, from New Hampshire. TIMOTHY PICKERING, from Massachusetts. JAMES HILLHOUSE and CHAUNCEY GOODRICH, from Connecticut. ELISHA MATHEWSON and FRANCIS MALBONE, from Rhode Island. JONATHAN ROBINSON, from Vermont. JOHN LAMBERT, from New Jersey. ANDREW GREGG and MICHAEL LEIB, from Pennsylvania. SAMUEL WHITE, from Delaware. SAMUEL SMITH, from Maryland. WILLIAM B. GILES, from Virginia. JESSE FRANKLIN and JAMES TURNER, from North Carolina. JOHN GAILLARD, from South Carolina. BUCKNER THRUSTON, from Kentucky. RETURN JONATHAN MEIGS, jr., from Ohio. JOSEPH ANDERSON, appointed a Senator by the Legislature of the State of Tennessee, for the term of six years, commencing on the fourth day of March last; and OBADIAH GERMAN, appointed a Senator by the Legislature of the State of New York, for the term of six years, commencing on the fourth day of March last, severally produced their credentials, which were read; and the oath prescribed by law having been administered to them, they took their seats in the Senate. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business. _Resolved_, That each Senator be supplied, during the present session, with three such newspapers, printed in any of the States, as he may choose, provided that the same be furnished at the usual rate for the annual charge of such papers: and, provided also, that if any Senator shall choose to take any newspapers other than daily papers, he shall be supplied with as many such papers as shall not exceed the price of three daily papers. _Resolved_, That James Mathers, Sergeant-at-Arms and Doorkeeper to the Senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the Doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after. Messrs. ANDERSON and GILMAN were appointed a committee on the part of the Senate, together with such committee as may be appointed by the House of Representatives on their part, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled and ready to receive any communications that he may be pleased to make to them. A message from the House of Representatives informed the Senate that a quorum of the House is assembled, and that the House have elected JOSEPH B. VARNUM, Esq., one of the Representatives for the State of Massachusetts, their Speaker, and are ready to proceed to business. The House of Representatives have appointed a committee on their part, jointly with the committee on the part of the Senate, to wait on the President of the United States, and notify him that a quorum of the two Houses is assembled and ready to receive any communications that he may be pleased to make to them. TUESDAY, May 23. Mr. ANDERSON reported, from the joint committee, that they had waited on the President of the United States, and that the President of the United States informed the committee that he would make a communication to the two Houses at 12 o'clock this day. JAMES LLOYD, jr., appointed a Senator by the Legislature of the State of Massachusetts, for six years, commencing on the fourth day of March last, attended and produced his credentials; which were read. _President's Message._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Fellow-citizens of the Senate and House of Representatives_: On this first occasion of meeting you, it affords me much satisfaction to be able to communicate the commencement of a favorable change in our foreign relations, the critical state of which induced a session of Congress at this early period. In consequence of the provisions of the act interdicting commercial intercourse with Great Britain and France, our Ministers at London and Paris were, without delay, instructed to let it be understood by the French and British Governments that the authority vested in the Executive to renew commercial intercourse with their respective nations would be exercised in the case specified by that act. Soon after these instructions were dispatched, it was found that the British Government, anticipating from early proceedings of Congress, at their last session, the state of our laws, which has had the effect of placing the two belligerent powers on a footing of equal restrictions, and, relying on the conciliatory disposition of the United States, had transmitted to their legation here provisional instructions, not only to offer satisfaction for the attack on the frigate Chesapeake, and to make known the determination of His Britannic Majesty to send an Envoy Extraordinary, with powers to conclude a treaty on all the points between the two countries; but, moreover, to signify his willingness, in the mean time, to withdraw his Orders in Council, in the persuasion that the intercourse with Great Britain would be renewed on the part of the United States. These steps of the British Government led to the correspondence and the proclamation now laid before you, by virtue of which the commerce between the two countries will be renewable after the 10th day of June next. Whilst I take pleasure in doing justice to the councils of His Britannic Majesty, which, no longer adhering to the policy which made an abandonment by France of her decrees a prerequisite to a revocation of the British orders, have substituted the amicable course which has issued thus happily, I cannot do less than refer to the proposal heretofore made on the part of the United States, embracing a like restoration of the suspended commerce, as a proof of the spirit of accommodation which has at no time been intermitted, and to the result which now calls for our congratulations, as corroborating the principles by which the public councils have been guided during a period of the most trying embarrassments. The discontinuance of the British orders, as they respect the United States, having been thus arranged, a communication of the event has been forwarded in one of our public vessels to our Minister Plenipotentiary at Paris, with instructions to avail himself of the important addition thereby made to the considerations which press on the justice of the French Government a revocation of its decrees, or such a modification of them as that they shall cease to violate the neutral commerce of the United States. The revision of our commercial laws, proper to adapt them to the arrangement which has taken place with Great Britain, will doubtless engage the early attention of Congress. It will be worthy, at the same time, of their just and provident care, to make such further alterations in the laws as will more especially protect and foster the several branches of manufacture, which have been recently instituted or extended by the laudable exertions of our citizens. Under the existing aspect of our affairs, I have thought it not inconsistent with a just precaution, to have the gunboats, with the exception of those at New Orleans, placed in a situation incurring no expense beyond that requisite for their preservation and conveniency for future service, and to have the crews of those at New Orleans reduced to the number required for their navigation and safety. I have thought, also, that our citizens, detached in quotas of militia, amounting to one hundred thousand, under the act of March, one thousand eight hundred and eight, might not improperly be relieved from the state in which they were held for immediate service. A discharge of them has been accordingly directed. The progress made in raising and organizing the additional military force, for which provision was made by the act of April, one thousand eight hundred and eight, together with the disposition of the troops, will appear by a report which the Secretary of War is preparing, and which will be laid before you. Of the additional frigates required by an act of the last session to be fitted for actual service, two are in readiness, one nearly so, and the fourth is expected to be ready in the month of July. A report which the Secretary of the Navy is preparing on the subject, to be laid before Congress, will show, at the same time, the progress made in officering and manning these ships. It will show, also, the degree in which the provisions of the act relating to the other public armed ships have been carried into execution. It will rest with the judgment of Congress to decide how far the change in our external prospects may authorize any modifications of the laws relating to the Army and Navy Establishments. The works of defence for our seaport towns and harbors have proceeded with as much activity as the season of the year and other circumstances would admit. It is necessary, however, to state that the appropriations hitherto made being found to be deficient, a further provision will claim the early consideration of Congress. The whole of the eight per cent. stock remaining due by the United States, amounting to five millions three hundred thousand dollars, had been reimbursed on the last day of the year 1808. And, on the first day of April last, the sum in the Treasury exceeded nine and a half millions of dollars. This, together with the receipts of the current year on account of former revenue bonds, will probably be nearly, if not altogether, sufficient to defray the expenses of the year. But the suspension of exports, and the consequent decrease of importations, during the last twelve months, will necessarily cause a great diminution in the receipts of the year one thousand eight hundred and ten. After that year, should our foreign relations be undisturbed, the revenue will again be more than commensurate to all the expenditures. Aware of the inconveniences of a protracted session, at the present season of the year, I forbear to call the attention of the Legislature to any matters not particularly urgent. It remains, therefore, only to assure you of the fidelity and alacrity with which I shall co-operate for the welfare and happiness of our country; and to pray that it may experience a continuance of the Divine blessings by which it has been so signally favored. JAMES MADISON. The Message and papers accompanying it were read and five hundred copies thereof ordered to be printed for the use of the Senate. WEDNESDAY, May 24. JOHN CONDIT, appointed a Senator by the Executive of the State of New Jersey, in the place of Aaron Kitchel, resigned, took his seat, and his credentials were read; and the President administered the oath to him as the law prescribes. JOHN POPE, from the State of Kentucky, attended. Mr. GILES submitted the following motion for consideration: _Resolved_, That so much of the President's Message as relates to a revision of our commercial laws, for the purpose of adapting them to the arrangement which has taken place with Great Britain, be referred to a select committee, with instructions to examine the same and report thereon to the Senate; and that the committee have leave to report by bill or otherwise. FRIDAY, May 26. JENKIN WHITESIDE, appointed a Senator by the Legislature of the State of Tennessee, for two years, commencing on the fourth of March last, in place of Daniel Smith, resigned, took his seat, and his credentials were read; and the President administered the oath to him as the law prescribes. RICHARD BRENT, from the State of Virginia, attended. MONDAY, May 29. _Senator Samuel Smith, of Maryland._ DURATION OF A PRO TEM. APPOINTMENT. The PRESIDENT laid before the Senate a letter from Mr. Smith of Maryland, stating that being appointed by the Executive of that State a Senator in conformity with the constitution, until the next meeting of the Legislature, which will take place on the 5th day of June next, he submits to the determination of the Senate the question, whether an appointment under the Executive of Maryland, to represent that State in the Senate of the United States, will or will not cease on the first day of the meeting of the Legislature thereof? and the letter was read; and, after debate, it was agreed that the further consideration thereof be postponed until to-morrow. WEDNESDAY, May 31. STEPHEN R. BRADLEY, from the State of Vermont, attended. _Batture at New Orleans._ Mr. GILES presented the memorial of Edward Livingston, of New Orleans, stating that, for a long time prior to the 25th January, 1804, he was in peaceable possession of a parcel of land called the Batture, in front of the suburb of St. Mary's, in the city of New Orleans. That, on the 25th of January, he was forcibly removed by the Marshal of the district, under the orders of the President of the United States, notwithstanding an injunction had been granted by the superior court against the execution of the warrant; and praying that the possession may be restored to him, and that such measures may be pursued as the wisdom of Congress may devise, for providing a legal decision on the title of the United States, if it shall be supposed they have any, to the property in question; and the memorial was read, and referred to Messrs. GILES, ANDERSON, HILLHOUSE, WHITE, and WHITESIDE, to consider and report thereon. THURSDAY, June 1. _Non-Intercourse Act--Extended to all public armed Vessels._ Mr. GILES offered the following amendment to the first section, to be inserted after the word "assembled:" "That the provisions of the two first sections of the act, entitled 'An act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes, shall extend to all public armed ships and vessels of all foreign nations, and the same shall be, and are hereby, continued and made permanent, subject, nevertheless, to any modifications and regulations which may hereafter be made by treaty." Mr. G. said he felt himself constrained to move this amendment at this time, because he found it impossible to avoid a consideration of the subject involved in it, although he had heretofore hoped that it would not necessarily pass in review during the present session. He said this necessity arose from the limitation of these sections of the act at the last session. The connection of these sections with the commercial non-intercourse system, was contrary to his opinion at that time; he then wished the subject to be taken up and acted upon in a separate bill, and made the permanent law of the land. His opinion then gave way to the respect he felt for the opinion of others. This will appear from the resolution he then moved, "to extend the interdiction to the public armed ships and vessels of all foreign nations." In consequence of connecting that subject with the general commercial non-intercourse, and limiting its duration with that act, it was now rendered a very delicate question. His proposition, however, was, to do now, what it was right to have done at the last session. He said that the proposition was founded upon the principle, that the United States had as absolute and unqualified a right to exclusive jurisdiction over the marine leagues usually attached to independent nations, as to their territorial jurisdiction, and as a consequence from that principle, foreign nations had no more right to send armed ships within our acknowledged marine jurisdiction, than they had to send an army within our territorial jurisdiction. This proposition is, therefore, merely municipal, formed upon an unquestionable right, and it is dictated by the same spirit of impartiality as that which dictated the original non-intercourse law. Indeed, it appeared to him the only impartial course now left us, as it respects the belligerents. It ought to preserve the most perfect impartiality, which, Mr. Canning so justly tells us, "is the essence of neutrality." Mr. G. said it could not escape observation, that, in the overtures made by the British Cabinet for the revocation of the Orders in Council of the 7th of January and the 11th of November, the obligation to protect our neutral rights against France, heretofore offered on the part of our Government, in case of her perseverance in her hostile edicts, had been entirely overlooked, or unconditionally dispensed with. He said he derived much satisfaction from this liberal conduct on the part of the British Government, because it manifested a confidence in the honor and firmness of our Government, which must be peculiarly gratifying to every American; but it rather increased than lessened the obligation to persevere in protecting our neutral rights against French aggressions, if they should be persevered in, contrary to his expectation. The motive or ground of resisting the aggressions of France cannot, under this overture, be mistaken. In the former case, it might have seemed as if the resistance was dictated by a stipulated obligation to Great Britain to make it in this; it can only be dictated by a just sense of our own honor, character, and interests, which is left perfectly uncontrolled by the British overture. As this latter motive is the more honorable, it ought to be the more scrupulously adhered to and enforced. He had no hesitation in saying he had uniformly been influenced by this motive alone, entirely disconnected with any stipulated obligation to Great Britain; and under this influence, alone, he would be found at all times as ready to resist the aggressions of France, as he had at any time been those of Great Britain, if they should, unfortunately, be persevered in; but, at the same time, he wished to take away every pretext for such perseverance, by persevering in a conduct of the strictest and most scrupulous impartiality toward all the belligerents. At the last session he had supposed, under the general interdiction of all foreign armed vessels, some regulations and modifications, as exceptions from the general rule, might be made by law, but further reflection had satisfied him that the preferable mode was by treaty. He would state two or three reasons for this preference: 1. It will tend to avoid collisions with all foreign nations. Regulations made by law might not suit the views of foreign nations, whereas their consent would be necessary in treaties. 2. It will give us the aid of a stipulated obligation on the part of the foreign nation making the treaty, to enforce the arrangement. In the case of Great Britain this consideration is of great importance. Its importance results from the strength of her navy, compared with the weakness of ours. 3. By treaty we may obtain what the lawyers call a _quid pro quo_. We may want, at some future time, the use of some British ports, which she would readily give for the use of ours. He said he would act liberally with her in this respect; and, he believed, considering Great Britain now at war, and the United States at peace, it would rather accelerate than retard the expected negotiation. He said he was as much opposed to throwing any impediment in the way of the expected negotiation as any gentleman in the United States. Great Britain cannot, and will not complain. The municipal right now proposed to be carried into effect, is admitted by Great Britain in its broadest extent, and will not be disputed by Mr. Canning at the present moment. This will appear from Mr. Canning's declarations in the debates of the last session of Parliament. He said he did not know whether it was correct to read newspapers in evidence, to ascertain the opinions and expressions of the speaker, but if the Senate would be content with this species of evidence, contained in a Ministerial paper, he would read it for their information. Mr. G. then read the following extract of Mr. Canning's speech, taken from a British Ministerial paper: _Extract from Mr. Canning's speech in Parliament._ "At the time the application for a compromise had been made by the American Government, there was an order in force excluding British ships of war from the American ports, while French ships of war were admitted into them; and, consequently, if the terms offered by America had been accepted, our commerce would have been permitted to America without a ship of war to protect it, while the French commerce would be excluded, at the same time that French ships of war would be admitted if they could succeed in getting there. The ports of America would become nests for French privateers against British commerce. As to the tendency of the measures in agitation in America, he could afford the right honorable gentleman some consolation, by assuring him that they would not have all the ill consequences he seemed to apprehend. A circumstance appeared by the report of the committee of Congress, though clothed in hostile language, which, if made known to His Majesty's Government in amicable terms, might have led to the acceptance of the terms proposed. The circumstance he alluded to was the resolution for excluding from American ports the ships of war not of Great Britain, but of the belligerents. The Americans, in their character of neutrals, had unquestionably a right to exclude the ships of war of both belligerents from their ports, but could not confine them exclusively to those of one of the belligerents without a violation of that impartiality which is the essence of the neutral character. Yet, when that proposition should be disposed of, the whole of the difficulty would not be surmounted, as much would still remain to be accommodated. Another point, in which fault had been charged upon his conduct with respect to America, was his having stated that the system would not be given up while the smallest link of the confederation against Great Britain existed." It will be observed that two important conclusions may be deduced from these observations: 1. That the exercise of this municipal right is unquestionable. 2. That Mr. Canning's objection to its former exercise by proclamation was to its limitation, not its extension. His objection is to its exercise against Great Britain exclusively and not against her enemies. At the time of making his speech, Mr. Canning thought the interdiction was extended to all the belligerents; in which case, so far from complaining of its exercise, he says it would furnish an inducement to an accommodation, and his instructions to Mr. Erskine were, no doubt, given under this expectation. This was the ground taken by the report of the committee of the House of Representatives, in the last session, and the Senate went further, by extending the interdiction to the public armed ships of all foreign nations; those of peace as well as those of war. This gave the transaction more strongly the character of a mere municipal regulation. This principle was narrowed down, in this bill, to apply merely to Great Britain and France, and left out altogether the other belligerent powers. Mr. Canning will probably be much surprised at this limitation; and conceive hostility more pointed than he had anticipated; some of the points may, however, be a little blunted by including France, the most operating and unmanageable of her enemies. He said he did not wish to go one atom beyond Mr. Canning's opinion upon this occasion. He took great pleasure in concurring with Mr. Canning upon this point. It was the first instance in which he had concurred in opinion with the gentleman; but he hoped it would not be the last, especially when the opinion favored the rights and promoted the interest of the United States. Mr. Canning must have acted under this impression when he agreed to make the honorable reparation he had done for the unauthorized attack upon the Chesapeake, without requiring a previous revocation of the interdiction of British ships. As this revocation was not demanded nor promised, the arrangement now ought to be made on general principles of justice. He said, without feeling or expressing any regret at any thing he had said or proposed at the last session, he was now as willing as any gentleman to reciprocate the temper lately manifested by the British Government, so opposite in its character and tendency from that manifested by the Cabinet for several years preceding. He said that no gentleman had yet manifested an intention of removing the interdiction upon British armed ships, until she had actually executed her promise of reparation; and, if the execution of the promise were to precede the revocation of the interdiction, the mode of revocation by treaty, as pointed out by his proposition, would be nearly contemporaneous with that proposed by gentlemen, if now enacted into a law, and it would have an evident advantage, as it respected the feelings of Great Britain. The mode recommended by gentlemen is founded upon a want of confidence in the promise of Great Britain, and an ungracious demand for its execution, as preliminary to the revocation, while the mode pointed out by treaty, is founded upon a confidence in the promise; and, without requiring its execution, will insure our own safety by the mere exercise of municipal right; a right which is unquestionable; vouched to be so by Mr. Canning, and the exercise of which is impartial toward all nations, by extending its provisions equally to all. He said that almost all the injuries and insults sustained by the United States from public armed ships of the belligerents within our waters, were attributable to an inattention to the exercise of this right, and, relax the interdiction when you may, without a stipulated obligation on the part of the belligerents, to respect your neutrality, and your marine jurisdiction, they will be renewed and continued. The principle contended for is not new. It has been before the Senate several times, and was adopted at the last session in its broadest extent, as will appear from the following resolution, which he then had the honor of moving. It does not appear from the Journals of the Senate, that there was any opposition to the following resolution, which was adopted on the 15th of February last: "The Senate resumed the consideration of the motion made on the 8th instant, that provision ought to be made by law for interdicting all foreign armed ships from the waters of the United States; and having agreed thereto, ordered that it be referred to Mr. Giles, Mr. Smith of Maryland, Mr. Crawford," &c. He said he was extremely happy to find the spirit of harmony and conciliation which had hitherto characterized the Senate, and he should endeavor to preserve and continue it; and, while he was strongly impressed with the propriety and policy of the amendment, yet he was willing to listen to any other which might be more agreeable to gentlemen, provided it was founded upon a principle of strict impartiality toward the belligerents, which he could not be induced to depart from under any circumstances. When Mr. G. had concluded, the further consideration of the subject was postponed until to-morrow. FRIDAY, June 2. PHILIP REED, from the State of Maryland, attended. STANLEY GRISWOLD, appointed a Senator by the Executive of the State of Ohio, to fill the vacancy occasioned by the resignation of Edward Tiffin, was qualified, and took his seat. JOHN SMITH, from the State of New York, attended. MONDAY, June 5. _Death of Senator Malbone._ Mr. MATHEWSON announced the death of his colleague, FRANCIS MALBONE, who deceased yesterday morning. On motion of Mr. LLOYD, _Resolved_, That the Senate will attend the funeral of FRANCIS MALBONE, this afternoon, at five o'clock, from his late residence; that notice thereof be given to the House of Representatives, and that a committee be appointed for superintending the funeral. _Ordered_, That Messrs. LLOYD, GILMAN, and WHITE, be the committee. On motion, by Mr. LLOYD, _Resolved, unanimously_, That the members of the Senate, from a sincere desire of showing their respect to the memory of FRANCIS MALBONE, deceased, late a member thereof, will go into mourning for him one month, by the usual mode of wearing a crape round the left arm; and that a sum not exceeding one hundred and fifty dollars be applied out of the contingent fund for placing a neat slab or monument, with a suitable inscription, over his tomb. On motion of Mr. LLOYD, _Resolved_, That, as an additional mark of respect to the memory of FRANCIS MALBONE, the Senate now adjourn. And the Senate adjourned. TUESDAY, June 6. _Senator Smith's pro tem. Appointment._ Mr. GILES submitted a resolution, which was amended, and is as follows: _Resolved_, That the Honorable SAMUEL SMITH, a Senator appointed by the Executive of the State of Maryland to fill the vacancy which happened in the office of Senator for that State, is entitled to hold his seat in the Senate of the United States during the session of the Legislature of Maryland, which, by the proclamation of the Governor of said State, was to commence on the 5th day of the present month of June; unless said Legislature shall fill such vacancy by the appointment of a Senator, and this Senate be officially informed thereof. On motion, by Mr. ANDERSON, to amend the motion, by striking out all after the word "Resolved," and inserting: "That any Senator of this body, who holds a seat under an Executive appointment, cannot, according to the provisions of the Constitution of the United States, be entitled to continue to hold his seat as a member of this body, after the meeting of the Legislature of the State from which such Senator may be a member." And a division of the motion for amendment was called for, and the question having been taken, on striking out, it passed in the negative; and the motion for amendment having been lost, the original motion was agreed to--yeas 19, nays 6, as follows: YEAS.--Messrs. Anderson, Brent, Franklin, Gaillard, German, Giles, Gilman, Goodrich, Griswold, Hillhouse, Lambert, Mathewson, Meigs, Pope, Robinson, Smith of New York, Thruston, White, and Whiteside. NAYS.--Messrs. Bradley, Leib, Lloyd, Parker, Pickering, and Turner. WEDNESDAY, June 7. JAMES A. BAYARD, from the State of Delaware, attended. THURSDAY, June 8. WILLIAM H. CRAWFORD, from the State of Georgia, attended. MONDAY, June 12. _Exiled Cubans, with their Slaves._ On motion, by Mr. GILES, _Resolved_, That a committee be appointed to inquire whether it be expedient and proper, at this time, to make any provision by law for remitting the penalties and forfeitures incurred by the violations of some of the provisions of the act, entitled "An act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight," so far only as relates to the introduction of slaves into certain ports of the United States, who were lately forcibly expelled from the island of Cuba with the French inhabitants thereof; and that the committee have leave to report by bill or otherwise. _Ordered_, That Messrs. GILES, BRADLEY, ANDERSON, CRAWFORD, and FRANKLIN, be the committee. MONDAY, June 19. _Exiled Cubans._ On motion, by Mr. GILES, _Resolved_, That the President of the United States be requested to cause to be laid before the Senate such information as he may deem proper to communicate respecting the unfortunate exiles lately expelled from the Island of Cuba, and who may have arrived, or are expected to arrive within the jurisdiction of the United States; and, also, respecting any propositions which may have been made to him by the Minister Plenipotentiary of France, for the purpose of facilitating the removal of any of the said exiles, with their slaves, and other effects, from the United States, to any place within the dominions of France. FRIDAY, June 23. _Foreign Armed Vessels._ Mr. LEIB, from the committee, appointed on the 20th instant, to inquire into the expediency of providing by law for the exclusion of foreign armed vessels from the ports and harbors of the United States, made report; which was read, as follows: "That, in the opinion of this committee, such an interdiction is within the just and neutral rights of the United States, and, under other circumstances, would be highly expedient and proper. So long as a neutral nation shall confine itself to strict measures of impartiality, allowing no benefit to one belligerent, not stipulated by treaty, which it shall refuse to another, no cause whatever is afforded for exception or complaint. The right to admit an armed force into a neutral territory belongs exclusively to the neutral; and when not guarantied by treaty, as is oftentimes the case, such admission compromises the neutrality of the nation, which permits to one belligerent alone such an indulgence. "As a measure of safety as well as peace, it is incumbent upon the United States to carry into effect such a provision. So long as we are without a competent force to protect our jurisdiction from violation, and our citizens from outrage, and our flag from insult, so long ought no asylum to be given, but in distress, to the armed vessels of any nation. The committee will not bring into view the many injuries and insults which the United States have sustained from the hospitable grant of their ports and harbors to belligerents; nor the facility which has thereby been afforded to them to lay our commerce under contribution. It is sufficient to remark, that great injuries have been sustained, and that imperious duty requires arrangements at our hands to guard our country in future from similar aggressions. "The United States are, at this moment, under no obligation to withhold restraints, within their power, upon the admission of foreign armed vessels into their ports; but the committee are too strongly impressed with the propriety of avoiding any legislative interference at this time, which, by any possibility, might be construed into a desire to throw difficulties in the way of promised and pending negotiations. They are desirous that a fair experiment may be made to adjust our differences with the two belligerent nations, and that no provisions be interwoven in our laws which shall furnish a pretext for delay, or a refusal to yield to our just and honorable demands. "Calculating that the overtures which have been made by Great Britain will be executed in good faith, the committee are willing to believe that the stipulated arrangements will be of such a character as to guard our flag from insult, our jurisdiction from aggression, our citizens from violation, and our mercantile property from spoliation. Under these impressions, which the committee have stated as briefly as possible, they beg leave to submit to the consideration of the Senate the following resolution, viz: "_Resolved_, That the further consideration of the subject be postponed until the next session of Congress." SATURDAY, June 24. The bill freeing from postage all letters and packets from Thomas Jefferson, was read the second time, and considered as in Committee of the Whole; and no amendment having been proposed, on the question, Shall this bill be engrossed and read a third time? it was determined in the affirmative. MONDAY, June 26. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President _pro tempore_, as the constitution provides; and the honorable ANDREW GREGG was elected. _Ordered_, That the Secretary wait on the President of the United States, and acquaint him that the Senate have, in the absence of the Vice President, elected the honorable ANDREW GREGG President of the Senate _pro tempore_. TUESDAY, June 27. _Public Credit._ The bill, entitled "An act supplementary to the act, entitled 'An act making further provision for the support of public credit, and for the redemption of the public debt,'" was read the third time as amended. On motion, by Mr. HILLHOUSE, to postpone the further consideration thereof until the first Monday in November next, it was determined in the negative--yeas 9, nays 15. WEDNESDAY, June 28. On the question, Shall this bill pass as amended? it was determined in the affirmative--yeas 17, nays 9, as follows: YEAS.--Messrs. Anderson, Brent, Condit, Franklin, Gaillard, Giles, Gregg, Lambert, Leib, Mathewson, Meigs, Parker, Pope, Robinson, Smith of New York, Turner, and Whiteside. NAYS.--Messrs Bayard, Crawford, German, Gilman, Hillhouse, Lloyd, Pickering, Reed, and White. _Six o'clock in the Evening._ _Adjournment._ _Resolved_, That Messrs. POPE and BRENT be a committee on the part of the Senate, with such as the House of Representatives may join, to wait on the President of the United States, and notify him that, unless he may have any further communications to make to the two Houses of Congress, they are ready to adjourn. _Ordered_, That the Secretary acquaint the House of Representatives therewith, and request the appointment of a committee on their part. A message from the House of Representatives informed the Senate that the House have appointed a committee on their part, to wait on the President of the United States, and notify him of the intended recess of Congress. Mr. POPE, from the committee, reported that they had waited on the President of the United States, who informed them that he had no further communications to make to the two Houses of Congress. A message from the House of Representatives informed the Senate that the House, having finished the business before them, are about to adjourn. _Ordered_, That the Secretary inform the House of Representatives that the Senate, having finished the business before them, are about to adjourn. The Secretary having performed that duty, the PRESIDENT adjourned the Senate, to meet on the fourth Monday of November. FOOTNOTES: [5] LIST OF MEMBERS OF THE SENATE. _New Hampshire._--Nicholas Gilman, Nahum Parker. _Massachusetts._--Timothy Pickering. _Connecticut._--James Hillhouse, Chauncey Goodrich. _Rhode Island._--Elisha Mathewson, Francis Malbone. _Vermont._--Jonathan Robinson, Stephen R. Bradley. _New York._--John Smith. _New Jersey._--John Lambert, John Condit. _Pennsylvania._--Andrew Gregg, Michael Leib. _Delaware._--Samuel White, James A. Bayard. _Maryland._--Samuel Smith, Philip Reed. _Virginia._--William B. Giles, Richard Brent. _North Carolina._--Jesse Franklin, James Turner. _South Carolina._--John Gaillard. _Georgia._--William H. Crawford. _Kentucky._--Buckner Thruston, John Pope. _Tennessee._--Joseph Anderson, Jenkin Whiteside. _Ohio._--Return Jonathan Meigs, jr., Stanley Griswold. ELEVENTH CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES.[6] MONDAY, May 22, 1809. This being the day appointed by law for the meeting of the present session, the following members of the House of Representatives appeared, produced their credentials, and took their seats, to wit: _From New Hampshire_--Daniel Blaisdell, John C. Chamberlain, William Hale, Nathaniel A. Haven, and James Wilson. _From Massachusetts_--Ezekiel Bacon, William Baylies, Richard Cutts, William Ely, Gideon Gardner, Barzillai Gannett, Edward St. Loe Livermore, Benjamin Pickman, junior, Josiah Quincy, Ebenezer Seaver, William Stedman, Jabez Upham, Joseph B. Varnum, and Laban Wheaton. _From Rhode Island_--Richard Jackson, junior, and Elisha R. Potter. _From Connecticut_--Epaphroditus Champion, Samuel W. Dana, John Davenport, Jonathan O. Mosely, Timothy Pitkin, junior, Lewis B. Sturges and Benjamin Tallmadge. From Vermont--William Chamberlin, Martin Chittenden, Jonathan H. Hubbard, and Samuel Shaw. _From New York_--James Emott, Jonathan Fisk, Barent Gardenier, Thomas R. Gold, Herman Knickerbacker, Robert Le Roy Livingston, John Nicholson, Peter B. Porter, Ebenezer Sage, Thomas Sammons, John Thompson, Uri Tracy, and Killian K. Van Rensselaer. _From New Jersey_--Adam Boyd, James Cox, William Helms, Jacob Hufty, Thomas Newbold, and Henry Southard. _From Pennsylvania_--William Anderson, David Bard, Robert Brown, William Crawford, William Findlay, Robert Jenkins, Aaron Lyle, William Milnor, John Porter, John Rea, Matthias Richards, John Ross, George Smith, Samuel Smith, and Robert Whitehill. _From Maryland_--John Brown, John Campbell, Charles Goldsborough, Philip B. Key, Alexander McKim, John Montgomery, Nicholas R. Moore, Roger Nelson, and Archibald Van Horne. _From Virginia_--Burwell Bassett, William A. Burwell, Matthew Clay, John Dawson, John W. Eppes, James Breckenridge, Thomas Gholson, junior, Peterson Goodwyn, Edwin Gray, John G. Jackson, Walter Jones, Joseph Lewis, junior, John Love, Thomas Newton, John Randolph, John Roane, Daniel Sheffey, John Smith, James Stephenson, and Jacob Swoope. _From North Carolina_--Willis Alston, junior, James Cochran, Meshack Franklin, James Holland, Thomas Kenan, William Kennedy, Nathaniel Macon, Archibald McBride, Lemuel Sawyer, Richard Stanford, and John Stanley. _From South Carolina_--Lemuel J. Alston, William Butler, Joseph Calhoun, Robert Marion, Thomas Moore, John Taylor, and Robert Witherspoon. _From Georgia_--William W. Bibb, Howell Cobb, Dennis Smelt, and George M. Troup. _From Kentucky_--Henry Crist, Joseph Desha, Benjamin Howard, Richard M. Johnson, Matthew Lyon, and Samuel McKee. _From Tennessee_--Pleasant M. Miller, and John Rhea. _From Ohio_--Jeremiah Morrow. _Election of Speaker, &c._ A quorum, consisting of a majority of the whole number, being present, the House proceeded, by ballot, to the choice of a Speaker. Messrs. N. R. MOORE, CUTTS, and PORTER, were appointed tellers of the votes. Mr. N. R. MOORE reported that the result of the ballot was, that there were-- For Joseph B. Varnum, 60; Nathaniel Macon, 36; Timothy Pitkin, junior, 20; Roger Nelson, 1; C. W. Goldsborough, 1; blank ballots, 2. Mr. VARNUM having 60 votes, it was submitted to the decision of the House by the tellers whether the blank ballots could be considered as votes; if not, there being but 118 votes, Mr. VARNUM having 60, had a majority. Mr. W. ALSTON conceived that there could be no doubt on the subject; that blank pieces of paper could not be considered as votes. He instanced the case which occurred in the famous balloting for President in the year 1801; at which time, after a number of ballotings, the State of Maryland, which was divided, gave in four blank votes, and thus decided the election. Mr. MACON thought there could be no question on the subject; he also recollected the case of the Presidential election instanced by his colleague, and was of opinion that blank ballots could not be counted. He hoped that the gentleman from Massachusetts (Mr. VARNUM) would be conducted to the Chair. Mr. RANDOLPH said this was no ordinary question which the House were about to determine, at the instance of his friend, (Mr. MACON,) in his opinion, in a very irregular manner; and Mr. R. said that he was certain, if his friend were not himself implicated in the question, he would have been one of the last men in the House to give such a decision against himself; but perhaps this was a peculiarity in his friend's character. Are we, gentlemen, (said Mr. R.,) to have a Speaker of the House of Representatives without any election? The committee have not reported that one of the persons voted for had a majority of the whole number of votes even; on the contrary, they have expressly reported that no one had a majority. And will the House consent in this manner to choose a Speaker to preside over this body, and perhaps eventually over the destinies of this nation?--for perchance the Speaker might become President of the United States. With respect to the precedent in the case of the election of the President of the United States, there was not, he said, the smallest analogy between the two cases. What was that case? It was on a question whether or not there should exist in this country a Government, that this device had been used, after some forty or fifty ballotings. In order to give a President to the United States, certain gentlemen had thought proper not to vote at all. But, said Mr. R., is time now so precious? Is the Secretary of the President of the United States knocking at the door for admittance? Is the enemy at the gate? Is there not time, I beseech you, gentlemen, to proceed in the regular mode to the election of our officers? Or, shall we, to avoid the trouble of writing a name twice, establish a precedent, which, if established, may put an end to this Government, which is founded on the principle that the majority shall govern? Mr. R. said he was more free in expressing his ideas, because he believed that a second ballot would not affect the result; and he put it to his friend (Mr. MACON) to say whether he himself would consent to take the Chair on the vote of a minority. He said he knew him too well; he would not consent to it. He conceived that there was no question before the House, that they had not elected their Speaker; and that it was their business to proceed to an election. They were certainly competent, he said, to elect the officers of their own body; and he hoped they would do it _more majorum_--after the fashion of their ancestors. Mr. STANFORD denied that the case which had been cited from the Presidential election in 1801 had any bearing on the present question. That was a case in which, a State being divided, one-half the representation voted blank, and left to the other half of the representation the right of voting for the State. As, at the same time, a gentleman now from Kentucky, (Mr. LYON,) then the only representative present from Vermont, had, by his single vote, his colleague being absent, decided the vote of that State, he thought there was no analogy. Mr. RANDOLPH moved that the House proceed to ballot a second time for Speaker. The Clerk having put the question, it was carried--67 to 43. Mr. MACON said he certainly felt a sense of gratitude towards those who had voted for him; but he should be obliged to them to vote for some other person. He had rather remain on the floor of the House than be placed in the Chair. He had experienced the difficulties of the situation; besides, by an illness during last winter, his lungs had been so affected that he did not feel himself adequate to the task. As his declining the situation might be unexpected to some gentlemen, to accommodate them he would ask a postponement of the ballot for a time. He considered the office of Speaker of the House as one of the most honorable in the nation. Perhaps none was more so, after that of President and Vice President. Notwithstanding this, were there a probability of his being chosen, he must decline being placed in the Chair. The House then proceeded to a further ballot; and Mr. N. R. MOORE reported the result to be: For Mr. Varnum, 65; Mr. Macon, 45; Mr. Pitkin, 6; Mr. Howard, 1; Mr. Nelson, 1, and Mr. Goldsborough, 1. Mr. VARNUM having a majority of votes was declared elected, and conducted to the Chair; whence he addressed the House as follows: "_Gentlemen of the House of Representatives_: "The continued manifestation of the national confidence in me, expressed by the Representatives of the people on this occasion, fills my heart with grateful sensibility. In obedience to the call of my country, I accept the office assigned me, and will endeavor to discharge the duties of it according to the best of my abilities, and agreeably to the wishes of the House." The SPEAKER having been sworn, the oath to support the Constitution of the United States was by him administered to the members, by States. The House then proceeded to the choice of a Clerk, by ballot. The votes having been counted, there were-- For Patrick Magruder, 63; Daniel Brent, 38; Nicholas B. Van Zandt, 14; William Lambert, 7, and Mr. Scott, 1. Mr. Magruder having a majority of votes, was declared to be re-elected. Mr. GEORGE POINDEXTER having appeared and produced his credentials, as the Delegate from the Mississippi Territory of the United States, the oath was administered to him by the Speaker. Mr. MACON, from the joint committee appointed to wait on the President of the United States, reported that the committee had performed the service assigned to them, and that the President signified that he would make a communication to Congress, to-morrow at twelve o'clock. A message was received from the Senate, informing the House that that body was formed, and ready to proceed to business; and that they had appointed a committee to wait on the President of the United States, in conjunction with such committee as the House should appoint, to inform him that they were ready to receive any communication he might have to make. On motion of Mr. J. G. JACKSON, a committee was appointed to act with the committee of the Senate. Messrs. MACON and JACKSON were named as the committee. The House, after hearing a memorial from Joseph Wheaton, stating his services, and praying a reinstatement in the office of Sergeant-at-Arms, from which he had been ejected, proceeded to the choice of a Sergeant-at-Arms. The whole number was 122, of which Thomas Dunn had 80. He was therefore declared to be re-elected. On balloting for a Doorkeeper, the whole number of votes was 116, of which Thomas Claxton had 115. He was therefore declared re-elected. On balloting for an Assistant Doorkeeper, there were-- For Benjamin Burch, 68; Jesse Edwards, 50. Mr. Burch was therefore elected. Mr. DAWSON.--Before we adjourn, it will be necessary to fix on some hour at which we shall meet; that hour heretofore has been eleven; but, as the mornings are now long, as some of the reasons which caused the present sessions have probably ceased, as the select committees will have but little to do, and every gentleman must be anxious to end the session and return home, I would prefer an earlier hour, and therefore offer the following resolution: _Resolved_, That unless otherwise directed, the hour of meeting during the present session shall be at ten o'clock in the forenoon. Agreed to, 52 to 39; and the House adjourned. TUESDAY, May 23. Several other members, to wit: From Massachusetts, SAMUEL TAGGART; from New York, VINCENT MATTHEWS; from Pennsylvania, DANIEL HEISTER; and from North Carolina, JOSEPH PEARSON, appeared, produced their credentials, were qualified, and took their seats. The Journal of yesterday's proceedings having been read-- Mr. RANDOLPH moved to amend it, so as to record the precise state of the two ballots for a Speaker, with a view to a correct understanding of the case, if it should ever be drawn into precedent hereafter. After a discussion of nearly two hours on the subject of the decision of yesterday, and the analogy betwixt it and the case of the Presidential election of 1801, Mr. RANDOLPH'S motion was agreed to--ayes 70. _President's Message._ The Message of the President of the United States was received, agreeably to the intimation given by the President yesterday to the committee appointed to wait on him. The Message having been read, was referred to a Committee of the whole House on the State of the Union, and 5,000 copies ordered to be printed of the Message, with the documents accompanying it. [See Senate proceedings of this date, _ante_ page 117, for this Message.] THURSDAY, May 25. _Swedish and Portuguese Vessels._ Mr. NEWTON offered a resolution to instruct the Committee of Commerce and Manufactures to inquire into and report on the expediency of permitting vessels of those nations with whom intercourse was permitted, to take cargoes, &c. He stated to the House that at present vessels of Sweden and Portugal, with whom intercourse is permitted, could not load and depart; and on this subject a letter was read from the Secretary of the Treasury to the Committee of Commerce and Manufactures. Mr. BURWELL said there was another subject connected with the resolution, which ought to be taken into consideration. The proclamation of the President declares that on the 10th of June next, the operation of the non-intercourse law, as relates to Great Britain, shall cease. It went into operation on the 20th of this month. Of course there were many vessels on the coast which could not get in before the 20th of May. He submitted it to the Chairman of the Committee, whether it would not be proper at once to do away all restriction, because the policy of its existence had ceased in relation to Great Britain from the restoration of harmony with her; and if the goods on our coast were not permitted to be regularly landed, they might be smuggled in, and injure the revenue. He thought it would be proper to inquire into the expediency of doing away at once, by law, all interdiction of commerce. Mr. NEWTON said he had no objection to act on the subject mentioned by his colleague, but he did not conceive it to be connected with the present motion. Mr. NEWTON'S motion having been agreed to, he immediately reported "a bill respecting the ships or vessels owned by citizens of foreign nations with whom commercial intercourse is permitted."--Twice read, and referred to a Committee of the whole House to-morrow. _Non-Intercourse Act._ Mr. LIVERMORE said that he did not distinctly hear all that fell from the gentleman from Virginia, (Mr. BURWELL,) but, from what he had heard, he apprehended that it was on a subject of great importance. There were many vessels on the coast, which, were they to enter our harbors, would fall within the description of the 4th, 5th, and 6th sections of the non-intercourse act. From the happy commencement of the settlement of our differences with Great Britain, he did not believe it was the design of any gentleman that the non-intercourse should be enforced in this particular. He therefore offered a resolution for suspending the act, as follows: _Resolved_, That it is expedient that the operation of so much of the act, entitled "An act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies," as inhibits the importation of goods from Great Britain and its dependencies, be suspended until the tenth day of June next. FRIDAY, May 26. Another member, to wit, ROBERT WEAKLEY, from Tennessee, appeared, produced his credentials, was qualified, and took his seat. _Vote of Approbation._ Mr. RANDOLPH said that for the last eight years or thereabouts an alteration had taken place in the manner of doing business at the commencement of each session of Congress. He said he recollected when the first Congress under the administration of Mr. Jefferson had met at this place, instead of Congress being opened as heretofore by the President in person and by a speech, a note in these words had been received by the Speaker, enclosing a Message from the President: "DECEMBER 8, 1801. "SIR: The circumstances under which we find ourselves at this place rendering inconvenient the mode heretofore practised, of making by personal address the first communications between the Legislative and Executive branches, I have adopted that by Message, as used on all subsequent occasions through the session. In doing this I have had a principal regard to the convenience of the Legislature, to the economy of their time, to their relief from the embarrassment of immediate answers on subjects not yet fully before them, and to the benefits thence resulting to the public affairs. Trusting that a procedure founded in these motives will meet their approbation, I beg leave through you, sir, to communicate the enclosed Message." &c. It is unnecessary, I believe, (said Mr. R.,) to state that the hint contained in the Message that no answer was to be expected, was taken by the House; and from that day no answers have been given to the Message of the President at the opening of Congress. It would ill become me, sir, who so highly approved then, and who so highly approve now the change introduced by communicating to the two Houses by message instead of by speech, to say any thing that might imply a disapprobation of it. I like it, sir. To tell the truth, the style of communicating by speech was more in the style of the opening of the British Parliament by the king. I therefore like the mode of communication by message. But I am not so clear, though we were then half-right, that we were wholly right; though on this subject I do not mean to give a definite opinion. No man can turn over the journals of the first six Congresses of the United States without being sickened, fairly sickened, with the adulation often replied by the Houses of Congress to the President's communication. But nevertheless the answer to an address, although that answer might finally contain the most exceptionable passages, was in fact the greatest opportunity which the opposition to the measures of the administration had of canvassing and sifting its measures; and, in my mind, whatever goes to take away this opportunity, goes so far to narrow down the rights of the minority or opposition, commonly so called, and in fact to enlarge the rights of the majority and the administration party so called; and I beg leave not to be understood as speaking of the state of parties at this time, but of that which has always existed. This opportunity of discussion of the answer to an address, however exceptionable the address might be when it had received the last seasoning for the Presidential palate, did afford the best opportunity to take a review of the measures of the administration, to canvass them fully and fairly, without there being any question raised whether the gentlemen were in order or not; and I believe the time spent in canvassing the answer to a speech was at least as well spent as a great deal that we have expended since we discontinued the practice. I do not say that any answer is proper or ought to be given; but I do believe that when this House goes into a Committee of the Whole on the state of the Union, it is for purposes a little more elevated than to dissect the Message of the President of the United States, or to strip it up and transfer it to select and standing committees. If that be the whole object of going into a Committee of the Whole on the state of the Union, I can see no reason for having any such committee, nor why the Message should not be taken in the first instance, dissected by the knife of the operator most in the fashion of the day, and referred to different committees. And it has a tendency to cast a sort of ridicule on our proceedings, when this august assembly resolves itself into a Committee of the Whole on the state of the Union, and resolves that the Message shall be referred to such and such committees; and would induce shallow observers to believe that in fact there is little or no use for such a committee. But whatever may be my opinion on the subject of opening the two Houses by message, I do think that there are occasions, and that this is one, on which it behooves this assembly to express its opinion on the state of public affairs. I will not recall to your recollection, sir, because perhaps, and most probably it passed over your mind without making any impression, that some time during the last session of Congress, I stated that if the gentleman in whose hand the reins of Government were about to be placed did not even tolerably perform the task assigned to him, some allowance ought to be made for the state in which he found the nation. And, sir, when I see the situation of the country so materially changed for the better, am I and is this House to sit still and regard it but as newspaper talk of the day, and express no opinion on it? And what is our opinion? It is either in approbation or disapprobation of the conduct of the Executive. In my opinion it is due to the Executive that he have an expression of sentiment on this subject. In the part of the country in which I live, dinners have been given, feasts have been held, and the song and toast have passed round in commemoration of the event: and is this House to be insensible, and to leave the President of the United States in ignorance or doubt whether his conduct has or has not received the sanction of their approbation? Or is he to get that information from inofficial sources? I hope not. I hope he will get it from ourselves. I therefore move you-- "That the promptitude and frankness with which the President of the United States has met the overtures of the Government of Great Britain, towards the restoration of harmony and free commercial intercourse between the two nations, meets the approbation of this House." Mr. FINDLAY said that this proposition contemplated a novelty in the legislative proceeding of this country. Where would it end if the House were now to make a solemn resolution approving of the conduct of the President? The answer returned to the speech of the King in monarchical Governments committed the House making it to all that was contained in it. The practice in this country had been long considered an evil; indeed, he thought he could show by the journals one instance in which the discussion of a single section in an answer occupied the House fourteen or fifteen days. It was a practice, too, which introduced at the very opening of the session all that irritation that commonly arose in the course of a session. Mr. F. said he supposed there was not a member in the House but did approve of the President's exercise of the authority vested in him. He presumed that they approved equally also of the same offer heretofore made to the Court of London. If the House were to approbate the conduct of one President, they must approbate that of others; and the conduct of the different administrations under the constitution might be brought into view. Mr. F. was totally against this motion, or any other of the kind. Mr. DANA said that at the present time he should certainly not be for adopting the resolution. The adopting it at this time would certainly not comport with the object professed by the mover, which he had understood to be, to present a question on which there might be a general view of the conduct of the Executive in relation to the object in question. If the object was to bring up the question in a regular form, that gentlemen might express themselves fully in relation to our affairs, it was very proper that this subject should be discussed in Committee of the Whole on the state of the Union. For himself, Mr. D. said that he thought the mode of answering speeches might do very well in such a Government as this, and whatever might be said of economy of time, by an attention to the actual expense, it would be found that in fact very little time was lost by it. At the last session of Congress a committee had reported a resolution to which there was but two dissentients; the discussion occupied nearly three weeks. All agreed as to the result, but gentlemen combated each other's arguments. And undoubtedly, Mr. D. said, the rapidity with which the Message was shot through a Committee of the Whole, was rather a farcical piece of business--and, indeed, it was not without some little surprise that, when he had come to the House this morning, he found the whole subject disposed of. Mr. W. ALSTON said, that when a resolution like the one proposed was presented to him, the substance of which met his approbation, if he was compelled to vote directly upon it, he would rather vote for it than against it. But if it were the object to bring before the House a discussion upon the Message of the President, and to return an answer to his Excellency's most gracious Message, he should certainly be opposed to it. If ever there had been one particular part of the conduct of the former administration which had met the approbation of the Republicans of this country generally, it was the discontinuance of this practice. The result of the alteration was, that although more was done during the sessions of the Republican Congresses, they terminated them three or four weeks sooner than ever had been done before. As to the opportunity which the answers afforded for debate, could any one say that sufficient latitude had not been taken in debate? Had not gentlemen even called others by name, and introduced every subject on any question? Mr. A. said he was pleased with what had been done, and he could not vote that he was not pleased; but he was certainly opposed to entering into a full discussion, at the opening of each session, of every thing which was to come under the consideration of the House. If they were to take up this resolution, they might as well take some abstract act of Mr. Adams's, he being still living, and discuss his political life. WASHINGTON, at least he hoped, having departed from us, would be permitted to rest in peace. Mr. BACON said that with other gentlemen, he could not but regret that this proposition had been brought forward. If he were brought to vote upon it, he need not tell the House that he should cordially vote for it; but it was really one of the last observations which he had expected to have heard from any gentleman that we wanted field for debate. He had thought that the grievance was the other way; that the cause of complaint was, that they consumed too much time in debate. He said he should certainly vote for the resolution, were it brought to a direct vote; but, for the purpose of placing before the House the view of the subject which he entertained, he should take the liberty to move an amendment to it, and then move to refer it to a Committee of the Whole. The amendment was in these words, proposed to be added to the motion:--"And furnishes an additional proof of the spirit of accommodation on the part of the Government of the United States, which has at no time been intermitted." Mr. J. G. JACKSON moved that the whole subject be postponed indefinitely. Mr. RANDOLPH said that as an indefinite postponement was considered as tantamount to a rejection--for it prevents a renewal of the subject during the session, and a rejection does nothing more, as the House had heretofore had a woful experience in the case of certain very pertinacious petitioners; and, as he was afraid, they would again have from a certain body of petitioners, who, he presumed, had not entirely given up their hopes of quartering themselves on the public property--an indefinite postponement, then, being equivalent to a rejection, he certainly was opposed to the rejection of his own motion. He could not have believed that this motion would have been rejected by the House, though he said he had certainly calculated on its being opposed by those who condemned the promptitude and frankness with which the President had proceeded to restore, as far as depended on him, the intercourse between the two nations. It is this part of the conduct of the President of the United States, said Mr. R., on which I mean to give an opinion--"By the President of the United States, a proclamation"--and in that proclamation, in my opinion, he has deserved well of his country. I ask the gentleman from Pennsylvania, (Mr. FINDLAY,) if he is near enough to hear me in this vast room, when have I proposed bringing in review the whole measures of former administration; when have I proposed an answer to an address to the two Houses? I have proposed no such thing, sir, although my motion is nearly tantamount to it; because it so happens that the only act of which we have any knowledge, except the laying up the gunboats in dry dock, which I also most cordially approbate, is this very thing. Now, I have not the slightest objection, if the gentleman chooses, that the honorable and worthy gentleman from Massachusetts should insist on a _venire_ on the conduct of any former President of the United States, but I beg myself to be excused from serving on it. As an unqualified juror, I choose to except myself; for, really, as to one of those Presidents, his career does not yet seem to be finished. It would seem as if he meditated another batch of midnight judges, and another midnight retreat from the Capital. I do, therefore, except to myself as a juror as to him or any other President. _De mortuis nil nisi bonum._ Agreed, sir. Let the good that men do live after them, and the evil be interred in their graves. But, I would ask the gentleman from Connecticut, and the gentleman from Pennsylvania, also, if this be one of their abstract propositions? How abstract, I pray you? Or, if it be one of those unmeaning propositions, the discussion of which could answer no good to this House? It would be idle in us now to be trying Mr. Adams on the merits of the sedition law, the eight per cent. loans, or any other such act. It would answer no purpose; and it would be equally idle and futile to pass any opinion on the merits or demerits of the first four or last four years of the late administration, for this plain reason, the question bolts upon you, _cui bono_? What earthly good can result from it? But is that the case in relation to the Executive, on whose future dispositions rest the best interests of this nation? Is that a mere idle discussion? And is it come to this? Is this House so sunk in the Executive opinion, (I trust not, sir; I abhor the idea,) that its approbation of a great course of national policy is to pass for nothing; is it to have no influence on the conduct of the Executive of the United States? This, sir, is taking higher doctrine than was ever advanced by those who wished to see the President open Parliament by a speech from the throne. It is taking higher ground than the Minister of that country from which the precedent was derived. The weight of the House of Commons is felt too sensibly there for their inclinations not to be sounded by motions from their Chancellor of the Exchequer, and their members of opposition, in relation to the great course of foreign affairs. And, sir, shall we now be told that it is a mere matter of moonshine, a thing of no moment, whether this House really does approve the conduct of the Administration of the Government of the United States, or disapproves it? Praise, in my opinion, properly and not prodigally bestowed, is one of the best resources of a nation. Why is this House called upon, and I am sorry to say it is, too often, and too lightly, to give its sanction to the conduct of individuals in the public service, if its approbation is estimated so trivially? No, sir; this is a great question which I have presented to you, and gentlemen may hamper it with as many amendments as they please; they cannot keep the question out of sight. Some may be _against_ it because they are _for_ it; some because it does harm, and some because it does no good. The question cannot be kept out of sight; it has been presented to the American people and they have decided it, decide you how you may. With respect to the gentleman's amendment, I need not tell him, I presume, that I shall vote most pointedly against it, because, in my opinion, it does not contain the truth. The gentleman from Massachusetts (Mr. BACON) will be among the last of the members of this House to attribute to me an improper sentiment in regard to him, when I say that it does not contain the truth. If the gentleman from Massachusetts chooses, in imitation of another Eastern nation--not those who tried their Kings after they were entombed, but those who consigned to one common grave the living and the dead; if he be willing to attach the sound, healthy body of the present Administration--healthy so far, and, I trust, fortifying itself against contagions--to the dead corpse of the last, let him. He shall not have my assistance in doing it; nor have I the least desire to draw a marked distinction between the two Administrations. The gentleman will hardly suspect that I am seeking favor at court. My object is plain. It is to say to the President that, in issuing that proclamation, he has acted wisely, and we approve of it. I know, sir, that there are men who condemn the conduct of the President in issuing the proclamation; and why? They say he was precipitate. Where was the necessity, they will tell you, of declaring that the Orders in Council will _have been_ withdrawn? This is the language of objection. There _is_ a difference of opinion subsisting in this country on these two points. There _are_ men who condemn this proclamation, and men who condemn the construction given by the Executive to the non-intercourse law. I approve both. I wish the President of the United States to have the approving sentiment of this House, and to have that approbation as a guide to his future conduct; and I put it to the gentleman from Massachusetts whether it be fair to mingle it with the old, stale, refuse stuff of the embargo? No, sir; let him not put his new wine into old bottles. There _is_ a difference of opinion in this country. The President of the United States stands condemned by men in this nation, and, as I believe, in this House, for having issued that proclamation, and put that construction on the non-intercourse law. I wish to see by how many he is thus condemned. I do not wish to see the question shirked--to see it blinked. If there be a majority of the House, as I believe there is, in favor of the conduct of the President, I wish him to have that approbation expressed as a guide to his future, and a support to his present conduct. It is due to him. Sir, have I moved you a nauseous, sickening resolution, stuffed with adulation? Nothing like it; but, a resolution that the promptitude and frankness with which the President of the United States has met the overtures of the British Government towards a restoration of the ancient state of things between the two countries--the state prior to the memorable non-importation act of 1806--meets the approbation of this House. Either it does, or it does not. If it does, let us say so. If it does not, let us say so. If gentlemen think this House never ought to express an opinion, but leave the President to grope in the dark as to our views, or get them through inofficial channels, I presume the previous question will be taken, or motion made that the resolution lie upon the table. The gentleman from Pennsylvania says, shall we go back, and approve of what he conceives to be similar conduct of the late President of the United States in relation to the embargo? I hope not, sir. But if a majority of this House choose to do so, let them. I shall say no. But, why mingle two subjects together, on which there does exist--and I am afraid it will leak out on this very vote of indefinite postponement--so very material a difference of opinion in different parts of the House? For example: I do not think of the offer about the embargo as the gentlemen from Massachusetts and Pennsylvania think; and I think it probable that those two gentlemen do not think of this proclamation and the construction given to the non-intercourse law, as I think. And why should we make a sort of hotch-potch of two subjects, on which we do not think alike, for the purpose of getting us all united against both? It is an old adage, and a very homely one, perhaps too much so for the delicate ears of this assembly, that if you put one addled egg into a pudding, you may add fresh ones, _ad infinitum_, but you can never sweeten it. And, sir, I defy the gentleman from Massachusetts, with all his political cookery, by pouring out of the jar of our present situation into the old mess, to sweeten it. In the year 1806, we passed that miserable old non-importation act, which last session we repealed; and really, sir, we got rid of it with an adroitness which pleased me exceedingly. Never was an obnoxious measure more handsomely smothered by its avowed friends. Gentlemen said it was merged in the non-intercourse act, and therefore, as a matter of indifference, they would repeal it; and when the non-intercourse act shall expire by its own limitation, at the end of this session, or be suspended by the President's proclamation, as it is in relation to Great Britain, there is an end of both; and thus, the old measure, the old, original sin to which we owe our first difficulties, was as much gotten rid of as if a majority of this House had declared it an unwise measure, and therefore repealed it. I do recollect to have heard one gentleman (Mr. EPPES) say, that unless the section repealing this law were stricken out, he should be compelled to vote against the bill. He conjured the House to cling to the old non-importation act as the last vestige and symbol of resistance to British oppression; but the House was deaf to his call, and the non-importation act was plunged beneath the wave, never, I trust, to rise again. When, therefore, the late President of the United States made an offer to Great Britain to suspend the embargo as to her, provided she would withdraw her Orders in Council, I will suppose that she had accepted that offer. In what situation would she have stood in relation to the United States? Her fine cloths, her leather, her watches, her this and her that, would have been prohibited admittance into this country under the old non-importation act of 1806, which would have been in force. That act, in point of fact, had no operation on her adversary. Her ships would have been prohibited the use of our waters, while the ships of war of her enemy were admitted. Did that make no difference? That, sir, would have been the situation of the two countries, provided she had accepted the offer to suspend the embargo as to herself--the old non-importation act in operation, her ships of war excluded, and her rival's admitted. I pray you, was not that the condition of the country when Mr. Rose arrived? Was there not some difficulty, under the proclamation, in the admission of the Statira frigate, bearing that Minister into our waters? And were not French ships of war then, and have they not since been riding quietly at Annapolis, Norfolk, and elsewhere? Has not, in fact, the gallant Captain Decatur taken our own seamen out of one of them? And yet, sir, the offer at that time made by us has been identified with the negotiation between Mr. Secretary Smith and Mr. Erskine. What then was her situation? The non-importation act in force, _her_ ships _excluded_ and those of France _admitted_, and nothing in force in relation to France except the embargo. What is now the situation of affairs? Trade with her is restored to the same situation, in point of fact, in which it stood when Congress met here in 1805 and 1806--at the memorable first session of the ninth Congress, which generated the old non-importation act of 1806. Her ships of war are admitted into our waters, her trade is freed from embarrassment, while the ships of her adversary are excluded and the trade between us and her adversary forbidden by law. While, therefore, I am ready and willing to approve the conduct of the present Administration, it is not because I conceive that they have effected any thing so very difficult--that they have obtained any such mighty concession--but, because they have done their duty. Yes, sir; we all recollect that the objections made to the treaty negotiated by Mr. Monroe, and Mr. Pinkney, on two great leading accounts: 1st. That it contained no express provision against the impressment of seamen. Is there any provision now made? No, sir. The next objection to the treaty was the note attached to it by Lords Holland and Auckland. What, sir, did gentlemen on this floor say was the purport of this note? That its object was to put us in a state of amity in respect to Great Britain, at the expense of the risk of collision with France. On account of this note, the treaty and the treaty-makers have been politically damned. And yet, we are now, in point of fact, in that very situation, in relation to the two nations, in which it was said that the British Commissioners, by the note, aimed to place us, and which was a sufficient reason, according to the arguments of gentlemen, for rejecting the treaty. The note was a sort of lien, gentlemen said, that would put us in a state of hostility with regard to France, and amity with regard to England. We refused to give our bond, for such it was represented (however unjustly) to be, to be sure, sir; but we have paid the money. We have done the very thing which gentlemen say the note aimed to induce us to do. We have put ourselves in a situation endangering collision with France, and almost insuring amity with England. We have destroyed the old non-importation act. The non-intercourse act is suspended as to her. Trade is again free. There is nothing now to prohibit her ships, whether for commerce or war, from coming into our waters, whilst our trade with France is completely cut off, and _her_ ships excluded from our waters. I cannot too often call the attention of the House to this fact, on which I am compelled to dwell and dilate to get rid of this merciless motion, which kills while it professes to cure. When Mr. Rose came into this country, French ships of war were freely admitted; English ships were excluded. As "the physician, in spite of himself," says in one of Moliere's best comedies, _on a changé tout cela_--the thing is wholly reversed. We are likely to be on good terms with England, maugre the best exertions of some of our politicians. Trade with Great Britain is unshackled, her ships are admitted, trade with France is forbidden; and French ships excluded, as far as it can be done by paper. Now, in the name of common sense, what more could Mr. Canning himself want, than to produce this very striking and sudden change in the relations between the two countries? For a long time previous, it was the ships of England that were excluded, while those of her adversaries were admitted. And we know that we could not have touched her in a more jealous point than in her navy. Things are now reversed--we have dexterously shuffled the non-importation act out of the pack, renewed trade with her, admitted her ships, and excluded those of France. And what, I ask this House, has the British Minister given us in requital for this change of our position in relation to him and his rival belligerent? The revocation of the Orders in Council--this is the mighty boon. For, with respect to his offer in relation to satisfaction for the attack on the Chesapeake, he made that offer to Mr. Monroe spontaneously, on the spur of the occasion, and there is not a doubt in my mind but that we had nothing to do but to receive it at that time, provided the instructions of our Minister had permitted him to receive it; but, perchance, sir, if he had received it, we might have been at this day discussing his message, and not the message of another President. All that Mr. Canning has given this country is a reiteration of his offer to make reparation for the affair of the Chesapeake, and his withdrawal of the Orders in Council; and to what did they amount? So soon as you, by your own law, cut off your trade with France, he agrees to revoke the orders interfering with it. Mr. Canning might as well have withdrawn blank paper. They had nothing left to operate upon. The body upon which they were to operate was destroyed by our own act, to wit, the trade of France. And, sir, while I compliment the present state of things, and the conduct on the part of our Government which has led to it, I cannot say that we have greatly overreached Mr. Canning in this bargain, in making an exchange of the old non-importation act with the admission of English, and exclusion of French ships and trade, for the Orders in Council. Mr. Canning obtained as good a bargain out of us as he could have expected to obtain; and those gentlemen who speak of his having heretofore had it in his power to have done the same, did not take into calculation the material difference between the situation in which we now stand, and the situation in which we before stood--to say nothing at all of Great Britain's having taken a stand against the embargo, having declared that she had nothing to offer in exchange for it; that we might keep it as long as we pleased. If she had accepted our offer, as I before stated, the old non-importation law would have been in operation, her ships of war would have been excluded, whilst those of France were admitted. Now, the non-importation act is not in force, her ships are permitted to enter our waters, and those of France excluded. And what has this sarcastic Minister of Great Britain given us in exchange? The Orders in Council, which had completely ceased to operate by the cutting off of the trade between us and France. Let me state this argument in a shape most favorable to ourselves, and least so to the British Government. I speak as to argument; for, as to friendship between nations, there is no friendship in trade. We ought to get the best bargain out of them that we could, and it was the duty of their Minister to get the best out of us. Let us throw out of view the exclusion of French ships and French commerce. Is the removal of the non-importation act, and the admission of British vessels, nothing? What has Mr. Canning given you in return? The Orders in Council--and what were they worth to him? Not a straw. Mr. HOLLAND said he had no doubt that the President had done his duty in the case referred to in the proposition under consideration; and as he had entertained no doubt but the President would, on this and every other occasion, do his duty, he said he felt no excessive joy on the occasion. It was only an ordinary act of duty well performed, and therefore he was not willing to distinguish it from those numerous acts which he trusted would be, as they had heretofore been performed, by the Executive. Were he the author of the proposition, he should have many scruples as to the propriety of offering such a one. Were the precedent to be set by the passage of this resolution, the House might hereafter witness a struggle on the floor to determine who should be first to come forward with a proposition expressive of approbation. The human mind might be so operated upon that the Executive might feel himself under an obligation to promote the person bringing forward such a motion. I, said Mr. H., would be one of the last to introduce such a motion were I a friend to the President; and if I were not a friend to the President, I would not bring it forward, lest it should be thought that I was courting favor in his eyes. But why, sir, should this House give an expression of approbation of the President? Because, we are told, it may be a guide to him hereafter. Let this House be careful how it acts, and attend to its own duties. The President does not stand in need of this kind of support. I never will step forward as a member of this House, to excite him to his duty by a vote of this kind. I believe he possesses an attachment to his duty sufficient to induce him to perform it. I believe that the voice of the people of the United States is such, in relation to the present and late President, that they believe they were well disposed to do their duty, and that they have done their duty; but it does not follow that we ought to express our approbation as to any particular act. The gentleman himself says that the President has only done his duty. Is it not surprising, then, that we are called upon to give him the approbation of this House? What would be inferred from this procedure? Why, that it is so seldom our Presidents have done their duty, that, in the very first instance in which they have done it, the House of Representatives had discovered and applauded it. If the gentleman thinks so, I wholly disagree with him. If our officers do their duty properly, they will receive the thanks of the nation; and where is the propriety of singling out for approbation or disapprobation this particular act? I see none. It is asked, will you leave the President of the United States to grope in the dark, and not let him know whether he has received our approbation or not? And is the President to judge from the thanks of the House that he has done his duty? How is he to know that they have expressed their sense of his conduct from proper motives? Would he not be right to suspect those who vote for, and more especially those who bring forward such a proposition, of improper motives? He would be left still worse to grope in the dark. It has been said that former Presidents have been deceived in consequence of votes of approbation; and the same would again occur. On every ground I am opposed to the passing such resolutions on principle, and shall therefore vote for indefinite postponement. It was indefinitely postponed. SATURDAY, May 27. _Sedition Law._ Mr. STANFORD said he had risen to offer a resolution, which he wanted to have offered immediately after that which had been offered by the gentleman from Virginia, (Mr. RANDOLPH,) and adopted by the House, on the subject of prosecutions for libel at common law; but not being able to get the floor, he would now beg leave to move his by way of instruction to the same committee. That committee, Mr. S. said, had been charged with an inquiry into what prosecutions for libel at common law had been instituted in the courts of the United States, which he hoped the committee would duly make, and lay before the House. Thus the House would see what system of persecution, if any, had been resorted to, and cherished by the late Administration or its friends, in any part of the United States; and he equally hoped some remedy might be devised at this time, the beginning of a new Administration, to obviate any like occurrence in future. But, said Mr. S., let it not be that any thing be done partially. While we are about to bring to our view all the cases of prosecution for libel under the common law, we are not likely to know any thing about prosecutions for libel which had occurred under the sedition law, and that too under a different Administration. We have not authorized any such inquiry. That abuses have occurred under both, is but too probable, and I think it will be liberal, as it is just and fair, to make the inquiry more general on the subject. If any citizen has been oppressed or injured by such prosecutions, let it be known, and let justice be done him; even now, if with propriety any way can be devised to do so. Inquiry, however, is all that is asked for the present. It may be perceived, said Mr. S., and if not, I wish it should be understood when I speak of justice being done, that I speak with rather peculiar reference to a gentleman of this House, who has been a principal sufferer under the well-known sedition law. I think it never too late to do justice, under whatever circumstances or motives of policy it may have been withheld for a time. I trust no gentleman will, upon this occasion, suspect me of a design to excite any party feelings. It certainly is not my wish, whatever may be the effect. The resolution I am about to offer is not so framed, nor would it necessarily involve the question of the constitutionality of the law. I feel persuaded, therefore, that the different gentlemen of the House may, from a spirit of liberality and fair concession, indulge the inquiry asked for. But, sir, said he, since the other inquiry has been gone into, it cannot be unfair to say that the majority of the House owe it to themselves to extend the inquiry, as well to cases of prosecution under the sedition law, as to those under the common law; and I shall be permitted to say also, they owe it as well to the feelings and sufferings of the gentleman to whom I have alluded. Whatever may be the aspect of political opinions and parties now, it is known to you, sir, and a few others on this floor, that to him much is due for the present ascendency of the majority; perhaps to no one more, to the extent of his sphere of action and influence. In the famous contested election for President in this House, eight or nine years ago, he gave the vote of a State, which sufficed to decide the contest; and more especially so, if the blank votes of the State of Maryland could have rendered that vote doubtful. But, however such considerations may or may not avail, nothing is more clear to me than that the inquiry should be indulged on the most liberal principles. _Resolved_, That the committee, appointed to inquire into what prosecutions for libels at common law have been instituted before the courts of the United States, be instructed to inquire what prosecutions for libels have been instituted before the courts of the United States under the second section of the act entitled "An act in addition to an act, entitled 'An act for the punishment of certain crimes against the United States,'" passed the 14th day of July, 1798, and the expediency of remunerating the sufferers under such prosecutions. Mr. SAWYER moved to amend the resolution by adding, at the end of it, the words "and that the committee also inquire whether any and what private compensation has been made to such suffering persons." Mr. MACON said he did not know how the committee could go about to make such an inquiry as that contemplated by the amendment. The gentleman must be well satisfied that the Government could not rightfully inquire into transactions between individuals. Mr. DANA said that he had no particular objection to meet this inquiry. As to the disclosure of facts as to the reimbursement by individual contribution, it might be amusing, if this House had authority to make it. He said he should like to know who contributed to the relief of James Thompson Callender, when he was prosecuted; but he had some doubt whether it was proper to enter into any inquiry or whether it was proper to pass the resolution pointing to the remuneration of sufferers under the sedition law. He should have supposed that it might be proper to leave it at large for the committee to report. He said he had certainly no objection to inquire, though he conceived that prosecutions at common law and under the sedition law were essentially different; because, supposing the Congress of the United States to pass such a law, the courts of the United States might take cognizance of it; but, without such a law, it did not belong to the judiciary to extend its care to the protection of the Government from slander. Such was the decision of Judge Chase, (said Mr. D.,) who decided that the court had no jurisdiction at common law in suits for libel; and the Supreme Court of the United States never did decide the question. The strong contrast is this: that while there was a description of men who said that no prosecution could be had at common law for libel, nor under the statute which modified the common law so as to allow the truth to be given in evidence--who, while they excited indignation against this statute, should afterwards undertake to institute prosecutions at common law where there was no limitation in favor of the defendant. There is this difference in the cases: that we find practice precisely different from professions. I do not say that the heads of departments were instrumental in instituting these prosecutions; but it marks some of the subordinate men who were active in making professions. I am very willing that the proposed inquiry should be made; but I cannot see the propriety of our undertaking to give any opinion as to remunerating those who suffered. Mr. STANFORD said:--Mr. Speaker, I would ask if my colleague's motion of amendment can be in order? It is no concern of this House, or of the Government, what private contributions may have been made to the gentleman from Kentucky; and, if it was, the inquiry is impossible. [The SPEAKER said, not being able to enter into the views of the mover of the amendment, he considered the motion in order.] Then, said Mr. S., if my colleague is anxious to know what he could not otherwise know, I will tell him I had contributed a small sum to the gentleman from Kentucky, as a sufferer in what was then considered a common cause; but, upon his return to his seat in the House, he could not brook the idea of such a contribution, and returned the amount to myself I know, and to others I believe. My colleague would do well to tell us how much he contributed. It was well known contributions were made in a quarter not far from him; and if he did not, I am well persuaded it was not for the want of sympathy on his part, or extreme zeal in the democratic cause; for I am confident I have seen as much or more seditious matter from under his pen, than I ever saw from under that of the gentleman from Kentucky. Be that, however, as it may, I am for one willing, if no constitutional difficulty can be shown, to remunerate the sufferers--at least to take such money out of the treasury, and restore it to its original, rightful owners; and if it cannot be consistently done, why the inquiry can do no harm. But, indeed, we have great examples in the case before us. Did not the late President, when he came into place, refuse to let such money come into the treasury in the case of the worthless Callender? As the proper authority, he thrust it from him as unworthy the coffers of his country; and did not his doing so meet general approbation? I confess it met mine most cordially, and I believe it did that of my colleague also. Have we not, moreover, the best recorded proof that the present President holds similar opinions on this subject? His splendid opposition to the sedition law is the proof to which I allude, and is, in my mind, conclusive on this subject. But if it were not, where is the impropriety of an inquiry? The House will be better able to decide when the whole matter shall come fairly before them. Mr. QUINCY said this appeared to be a proposition to aid a single individual; and, by the amendment, gentlemen who had aided that individual were anxious to prevent him from gaining more than he had paid. It was a kind of application to the House to repay to those persons who relieved the sufferers under the sedition act, the sums which they had paid. If this were the object, Mr. Q. suggested whether it would not be proper for them to come forward and lay their claim in the ordinary form before the House. Mr. SAWYER said he was, as he always had been, willing to contribute his mite to the relief of the sufferers; but he did not wish to see them remunerated from the public treasury. Mr. LYON.--I have for some time been in suspense whether I ought, or ought not to make any observations on the subject before the House; delicacy on the one hand bids me be silent, while a duty I owe to myself, to my family, and to the nation, requires (that since my particular case has been alluded to) the members of this House and the public should be made acquainted with many of the circumstances of that case, which have either never come to their knowledge, or have long been buried up among the consumed heap of political occurrences, disputations and publications of these days. Besides, sir, I have it in my power to throw much light on the subject of the inquiry wished for, by the gentleman from North Carolina, (Mr. SAWYER,) who has proposed the amendment under consideration, and I will assure the gentleman that I shall not be backward in doing so. It is true, sir, that I was unjustly condemned to pay a fine of one thousand dollars and to suffer an ignominious imprisonment of four months in a loathsome dungeon--the common receptacle of felons, runaway negroes, or the vilest malefactors--and this when I was the Representative of the people of Vermont in this House of Congress. It cannot be said there was no other room in the prison, there were rooms enough; yes, sir, one of my judges during my imprisonment, found another room in the same jail to be imprisoned for debt in, until he gave bonds for the liberty of the yard. To heighten the picture exhibited by official tyranny, and to add to the cruel vexation of this transaction, I was carried out of the county in which I lived, fifty miles from my family, kept six weeks without fire in the months of October and November, nearly the whole of which time the northwest wind had free admittance into the dungeon, through the same aperture that admitted the light of heaven into that dreary cell. And let it be asked, in these days of the mild reign of republicanism, for what crime was all this extraordinary, this ignominious punishment inflicted? I hold a copy of the indictment in my hand, which includes the charge against me. I will not trouble the House with a recital of the technical jargon and tedious repetition of words, of course, which constitute the bulk of such instruments. No, sir, but I will read the identical words of the charge, which says, that on the 20th of June, 1798, Matthew Lyon wrote a letter to Alden Spooner of Windsor, Vermont, in which he said, "as to the Executive, when I shall see the efforts of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that Executive shall have my zealous and uniform support. But whenever I shall, on the part of the Executive, see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice--when I shall behold men of real merit daily turned out of office for no other cause but independence of sentiment--when I shall see men of firmness, merit, years, abilities, and experience, discarded in their application for offices for fear they possess that independence; and men of meanness preferred for the ease with which they take up and advocate opinions the consequence of which they know but little of--when I shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, I shall not be their humble advocate." This is the whole of my crime, and what do those words amount to. Who is here that hears these words, but what approves the sentiment they contain? What do I say in these words, other, or more, or less, than that when the Executive is doing right, I will support him--when doing wrong I will not be his humble advocate? This ought to be the creed of every member who enters these walls. Was there to be an oath or abjuration added to the constitutional oath to be taken by the members of this House, can any person who hears me, devise a better, or one more proper? Could any person who really thought Mr. Adams quite clear from all those improprieties, as merely possible from the nature of man, mentioned in my letter, have thought of my libelling the President by this declaration? I presume not, sir. Yet this, my crime, received one of the condemnations which you are called upon by this motion to constitute an inquiry into--an inquiry I cannot persuade myself will be refused. The letter, sir, was an answer to a violent invective against me, published in the same paper a short time before, in which besides a number of other charges against me, it was imputed to me as a crime that I acted in opposition to the Executive. I did not begin the altercation. A person who was a friend to the Adams Administration, in the act of libelling me, (one of the constituted authorities,) ushered the Executive into his performance. My character, ever dearer to me than life, was concerned. I deigned to answer him, after expostulating with him on my right as one of the constituted authorities of the nation to exercise my own judgment in my official conduct, and showing that my merely differing with the Executive proved no more than that the Executive differed with me. I incidentally proceeded in the words for which I was indicted, the very words I just now read. I was charged with neither more nor less as coming from my pen. As if to outrage every principle of law and every sentiment of decency and propriety, this indictment, founded on the sedition law passed on the 14th day of July, 1798, charges me with having in Philadelphia on the 20th of June prior, written a letter to Alden Spooner of Vermont, which contained those words I have been reciting. My letter was produced in court and carried the Philadelphia post-mark of some day in the same June, I do not recollect which day; Judge Patterson himself admitted this fact, and that it was out of my power and control in the June before the sedition law was passed. Thus the indictment, which was the foundation of the barbarous treatment I received, carried on its front its own condemnation; but this defect was remedied by the ingenuity of the party judge, who dexterously mingled his assertions that the crime was cognizable under the common law, with his admonitions to a pliant jury not to be deterred from finding a verdict where the man who wrote was a member of Congress, and knew the sedition law was about to be passed, and probably hurried his letter to evade the law. It may be said, sir, that I was charged in the indictment with publishing a copy of a letter, from an American diplomatic character in France, to a member of Congress, commonly called the Barlow letter. I was so, and there was a third count in the indictment for aiding and abetting in the publication of said letter. The words selected as seditious were as follow: "The misunderstanding between the two governments has become extremely alarming: confidence is completely destroyed; mistrust, jealousy, and a wrong attribution of motives, are so apparent as to require the utmost caution in every word and action that are to come from your Executive; I mean if your object is to avoid hostilities. Had this truth been understood with you before the recall of Monroe, before the coming and the second coming of Pinkney, had it guided the pens that wrote the bullying speech of your President, and the stupid answer of your Senate, in November last, I should probably have had no occasion to address you this letter; but when we found him borrowing the language of Edmund Burke, and telling the world that although he should succeed in treating with the French, there was no dependence to be placed on their engagements; that their religion or morality was at an end, and they had turned pirates and plunderers; and it would be necessary to be perpetually armed against them, though you were at peace, we wondered that the answer of both Houses had not been an order to send him to a madhouse! Instead of this, the Senate have echoed his speech with more servility than ever George the Third experienced from either house of Parliament." No proof appeared on the trial of my printing, or aiding or abetting in printing, or circulating a printed copy of this famous letter. I had read the copy of the letter in company, but the advocates of the sedition law would never admit that such reading was punishable by that law. The printer who printed the letter, swore that he had been anxious to get the letter from me, and that I had refused to suffer it to be printed, and repelled every attempt to persuade me to the printing; that he had obtained the copy of the letter in my absence. The fact was, that my wife was persuaded by a gentleman who is now a member of this House, that the Republican cause and my election (which was pending) would be injured if the letter was not published; and, as I understood, she gave it to him, the letter was printed, and that gentleman had some of the copies before I came home. I suppressed the remainder of the edition. The judge, finding no proof to support this part of the charge, directed the jury to find a verdict of guilty generally, as there could be no doubt of my being guilty on the first count. I had acknowledged my having written the letter to Alden Spooner. They did so. I will not detain the House by going into a detail of the manner in which that jury was packed. After all the care and management in the original selection, there was one man on it whose honesty my persecutors feared; and, to get him off, a wretch falsely swore that the summoned juryman had expressed to him something like an opinion that I could not be found guilty. I will not here dwell upon the judge's denial to me of a challenge upon the jury--as great a crime as any Judge Chase was charged with. I look for an investigation of this business when all the features of it shall come fairly to public view. Should that investigation be refused at this time, I shall not fail to look for it at some future time. I can never forgive the unjust stigma that has been placed on my character; and should justice be refused me during my whole life, I will leave it with my children and theirs to seek it. When my enemies wounded my feelings, robbed me of my property, and affected temporarily my reputation, I consoled myself that my friends would soon be in power, and they would make every thing right. My wounded honor would be consoled; the wound would be healed--a share at least of the property of which I had been deprived, would be reimbursed. How cruelly have I been thus far disappointed! Generous men, at the time I suffered, said it is enough for you to bear the mortification of the temporary insult--we will share with you the loss of property. Under this impression much money was collected, the greater part of which went to relieve oppressed Republican printers--it has all been charged to me. I never asked, nor would I have received a cent of this gratuity, could I have avoided it without insulting the benevolent views of the good man (Gen. Stevens Thompson Mason, deceased) who set the subscription on foot. That good man gave me a list of those to whom he considered me beholden, and the amount; while the thing was fresh in every one's mind I made a compliment, which he considered ample, and more than ample, to every one of those on that list that was within my reach; to those few that remain on that list uncompensated, I feel beholden and much indebted. As the thing has grown old, and as I have come in contact with those gentlemen, I have felt myself in an embarrassed, awkward situation, from which I wished to be relieved by being able to say to them, the public have restored your money--here it is--it is yours, not mine. Judging other men to have feelings like myself, I am at a loss how to get rid of the obligation I feel, in any other way than the restoration of their money when it comes in a way they cannot refuse it. From this source my anxiety for the restoration of the money unjustly taken from me, arises more than any other; and on every review of the subject, I am bound to say that I have been more cruelly treated by the neglect of a duty to which my friends had pledged themselves, when they declared me innocent and patriotic, than by enemies who thought me guilty, and found me goading them in their progress toward the destruction of the liberty and republicanism of this country. As if to make their cruelty more insupportable, insult is added to the injury, by daily insinuations that I am bound by gratitude to stand by those who call themselves Republicans, in all their projects, right or wrong. Before I was elected a member of Congress from the State of Kentucky, I sent to a member of this House, who had promised me to bring it forward, a petition to be laid before the House of Representatives for redress in this case. He returned the petition to my son in a letter, which I have in my hand--in which he says, "I am sorry and ashamed that I have not presented the petition. I have not wrote to your father, and confess I am ashamed; pray you, the first time you write to Colonel Lyon, do endeavor to make an excuse for me." Such I believe was the impression of most of those I had acted with in the reign of terror, as we called it; but that impression has been wearing off, it seems, while my feelings have been every day increasing in their poignancy at their neglect of a duty, to which they had solemnly pledged themselves, while they were struggling with their adversaries for pre-eminence and power. Happily the awful silence which surrounded this extraordinary business has been broken. I consider this a prelude to investigation and a correct issue; and, let the event of the vote now about to be taken be what it may, I shall not despair. I shall at this time say no more on this subject than to declare I wish not to have my case singled out for reparation. I wish the investigation general; the provision for remuneration general, to all who suffered under the lash of that unconstitutional sedition law. Mr. SAWYER'S amendment was negatived without a division. Mr. ROSS rose to propose another amendment to the resolution. It was a fact, he said, well known in almost every part of the United States, that the people in the district from which he had just been returned, had suffered as much in the cause of democracy as that of any other; that they had presented as firm a barrier to Federal oppression, and perhaps had as just claims as any other people in the United States to remuneration for losses in the cause. It was well known that at the time that high-handed measures were taken in this country, an insurrection had taken place in Pennsylvania, commonly known by the name of the Hot-water Insurrection; that it occurred in consequence of the oppression of the law for the collection of a direct tax. Many persons who had opposed the law, under the idea of its being unconstitutional, were prosecuted, punished, and some of them, in consequence of those prosecutions and the sentence resulting from them, expired in prison. To some who remained after the aspect of the affairs of the country was changed, mercy was extended by the United States; but to those whose prosecutions and convictions were of an earlier date, lenity was not extended; they were compelled to pay their fines before they could be relieved from imprisonment. Mr. R. declared his object in rising to be, to move to amend the resolution in such a way as to instruct the committee to inquire whether any, and if any, what compensation and remuneration should be made to the persons who suffered and were punished in consequence of an act to lay and collect a direct tax in the United States. Mr. DANA said the gentleman's amendment contemplated remunerating those who suffered by their opposition to a statute. He would propose an amendment to inquire into the propriety of remunerating those who had suffered by their submission (not by their opposition) to the several acts respecting the embargo, certainly so much more meritorious conduct than that of opposition. As respected the whole of this subject, he said he was very free to declare that as regarded those who had been prosecuted at common law in the State of Connecticut, who had certainly been at very considerable expense, their defence perhaps having cost them several thousand dollars, yet, on the principle of correct legislation, he had not the least idea of remunerating them. Where shall we stop, said Mr. D., if we tread back on the steps of each other? We shall have opportunity enough for censure in reviewing our conduct. Perhaps it might be as well to draw the veil of oblivion over past transactions, and learn from experience to err no more. Mr. JOHNSON said, that however much the act laying a direct tax was disapproved, and arose from measures which were improper, yet he had never deemed it an unconstitutional law, as he had the sedition law. He should therefore vote against the amendment and for the resolution. Mr. GARDENIER suggested to the gentleman from Pennsylvania, since he had brought the subject before the House, the propriety of going the whole length of his principle. To my mind it is very clear, said he, that if those who oppose the law are to be remunerated, for what it cost them in consequence of prosecution, you must go only on the principle that the direct tax never ought to have been laid at all. If the law was right, it was improper to oppose it. If it was improper, perhaps according to modern democracy, it might be proper to oppose it by force. That, to my mind, is a very dangerous doctrine for legislators to broach; it is a doctrine to which I myself can never agree, for it is making Government a nullity. The suggestion which I wish to make is this: that if those men who suffered in the Hot-water Insurrection are to be remunerated, it is no more than fair that those should be remunerated who have quietly paid this tax. They were at least respectful to the laws. The committee therefore ought to be instructed to inquire into the propriety of repaying to the several contributors in the various States the direct tax, collected from them, unless there be something so admirable, so lovely, so worthy of encouragement in insurrection, that those concerned in it have peculiar claims to encouragement by Government. If that be the case, the gentleman stopped at the proper point. If there was nothing in insurrection, however, which the Legislature would feel it proper to cherish, the gentleman should either go the whole length of his principle or not touch it at all. Mr. ROSS said he had not undertaken to state any principle at all. His object was to refer the subject to a committee to decide upon. He had not said that he considered the original resolution to contain a correct principle; it was a point left for the committee to consider and for the House to determine on. But if it was a correct principle that those who suffered under the sedition law should be remunerated, he said he had no hesitation in saying that his constituents, who had suffered as materially and as much as any for the democratic interest in this country, should be placed on the same ground as those who were asking for the favor of the House for no better reason; and when the gentleman calls upon me, said Mr. R., to go the whole length of a principle which he states, it is calling upon me to do that which is consequent on a principle which I have not assumed. The gentleman from Kentucky conceives that there is a difference between the cases alluded to in my amendment and the cases arising under the sedition law. Where is the difference, sir? In both cases they were laws of the United States: in both cases the judges of the courts of the United States were authorized to proceed. In neither of the cases did they decide the law unconstitutional. If, then, persons were punished by the sedition law in its full operation, carried into effect by the constituted authorities, where, I ask, is the distinction between that and any other law? To all the purposes of legality, that law is as much legal as that under which the direct tax was instituted. Whether the law under which a direct tax was collected, was constitutional or not, has it not as equally received the disapprobation of the Republicans of the United States as the sedition law? If then it was the object of the democratic party to rid the country of such a law as much as of the sedition law, I ask whether those who suffered under each law have not equal claims? There can be no legal claim upon the House under either law; but we know that it was the hardy yeomanry who presented a firm phalanx to the irresistible torrent of injurious laws of the Federal Administration, and who gave the present party the ascendency, and many of them have not, as the gentleman from Kentucky has been, compensated for their suffering by a long continuance in an honorable and lucrative office which he enjoys by the confidence of his constituents. Mr. POTTER declared himself at a loss to know whether the House was sitting here as a branch of the Legislature to pass laws, or as a body to remunerate those concerned in the violation of them. The House sit here to make laws and not to encourage those who resisted them; but if they determined to give premiums for the violations of laws, they had better depart home at once. Mr. RHEA wished the House to get rid of this motion and the amendment as speedily as possible. If the House were to go on as it had commenced the session, the whole time of the House would be spent about nothing, discussing propositions which could not possibly produce good to the nation. He therefore moved to postpone the whole subject indefinitely. Mr. MACON said he had been in hopes when this motion had been made, that it would be one of the happy days of the House; that the question proposed would occupy the whole day in debate, and that all would agree in it at last. As to comparing this case with that of the direct tax, it was notorious that the discussion on the sedition law and the public opinion also took a very different turn from that which it took on any other law. The whole discussion (said Mr. M.) as well as I recollect, turned upon the constitutionality of the law. Then, if it is still believed that the law was unconstitutional, I leave it to gentlemen to say whether it can be viewed in the same light as a law, the constitutionality of which is not disputed. In the one case, trials took place for speaking and writing; in the other case for opposing the execution of a law. I wish this question to be settled for this reason: In all governments where liberty and freedom have existed, parties also have had existence. Thinking honestly produces parties. That those gentlemen who were in power when the sedition law was passed, should step a little too far, was not so much to be wondered at as that those who came after them should do so; because they were making the first experiment of the instrument. I then believed, and do still believe, that the law was unconstitutional. Taking up this question, the original resolution of my colleague is that remuneration should be made to those people who suffered under it; but seeing that the question with respect to the constitutionality of the law had always been matter of dispute, it proposes that a committee shall inquire into the subject. The House is no farther committed by passing this resolution, than to consent to the inquiry being made. I submit it to the candor and reflection of gentlemen of all parties, whether this thing, in a national point of view, can produce any evil--on the contrary, may it not produce good? All that has been said about the direct tax laws can have no other effect than to draw off the attention of the House from the true question before them. The question on this law, in my mind, is a different one from any other law which has been passed. I feel no hesitation in acknowledging that it is my opinion that all the sufferers ought to be remunerated, both those who suffered under the sedition law, and those who suffered under the common law. It is the business of all parties to settle amicably as they can any subject of contention between persons of different political persuasions. If this first resolution should be referred to a committee, and they report that the law was unconstitutional, I will venture to pronounce that no majority will ever again make a law of that kind. If, sir, the sufferers under the sedition law did suffer contrary to the constitution, ought not their expenses to be reimbursed? On the subject of contribution, I know that that party to which I was attached, did contribute, and did consider it an honorable cause. I was willing (and there are gentlemen in this House who know it) to open my purse when a man of a very different political creed from myself, Peter Porcupine, was oppressed. I care not of what party a man be, that is oppressed. I can prove that the party opposed to me in politics have also subscribed. It is all no more than the subscriptions for printing speeches which are occasionally made in the House, in which gentlemen of all parties unite. Suppose that the whole fine in any particular case had been paid by individual subscription, what has the Government to do with that? Will it be contended, because an old soldier who received a pension also received individual contributions, that the pension should be taken from him, or that the Government is thereby acquitted of what it owed him? Surely not; the Government has nothing to do with transactions between individuals. As to the particular gentleman brought into this discussion, I believe that every man that contributed any thing towards paying the fine levied on him, was remunerated to his satisfaction. I have thought proper to state these opinions of mine, and to avow myself in favor of reimbursing the sufferers. But before I sit down, I must say that my opinion of modern democracy is very different from that of the gentleman from New York. I consider it as neither leading to insurrection, rebellion, nor any such thing. I believe that the true principle of every modern democrat, is, that the law constitutionally made is supreme, and is to be obeyed; that it has nothing to do with riots, rebellion, and insurrection. I know very well, and shall not deny it, that there are times when insurrection is a holy thing, but it is not peculiarly attributable to democracy. With us, election puts every thing to rights; and on them every man of pure democratic principles depends. It is doubtful whether the question of the constitutionality of the sedition law can be settled in a more easy way, and in a mode less liable to irritation, than that proposed by my colleague. If the committee report as I wish, it is well; if not, it settles the question forever; and it is surely desirable that the question should be settled. However gentlemen may differ, as to the principle proposed to be investigated, they might with propriety vote for the inquiry, as it is the ordinary course of every day. I do not consider this as proposing to give a premium to violators of the laws. I know that much depends in this world on names; and that if you give any man or thing a bad name, whether merited or not, it is difficult to get rid of it. I hope the House will not be deterred from this inquiry by any name attempted to be given to it. It is proper that this question should be settled; and if considered now, it will be settled by a body which did not partake of the heats of those times, and when, to say the least of it, there is a little division in the great parties of the nation; and it seems to me that the gentleman who moved it has been fortunate in the selection of his time. Eight years have elapsed, a new President is just inducted, and the question is now brought up for our decision. I am sorry that any member of this House should make a motion with no other view but for procrastination. I do not believe that my colleague who made this motion is more in the habit of procrastinating the public business than other members of the House; and I was in hopes that there would have been no dissentient voice to his motion. He only asks of you to let the inquiry be made. He does not ask a single member of the House to commit himself upon the question, but merely asks that a committee may be permitted to inquire into it; and this, it seems to me, is no extraordinary request. I hope that the resolution, without being trammelled with any extraneous matter, will be passed. Mr. KEY said he should vote for indefinite postponement of the resolution. What good purpose could its adoption answer, unless the House had the power to take money from the Treasury of the United States for the purpose of remunerating any person who had suffered? Had Congress that power? He apprehended not. He could see no such power amongst those delegated to Congress. The gentleman from North Carolina admitted the House were under no obligation to remunerate the sufferers; and if the gentleman would turn to the rules laid down for the definition of the powers of Congress, he would see that there was no authority to draw money from the Treasury for this purpose. Under that view of the constitution, Mr. K. said he must vote for indefinite postponement. Mr. MACON asked under what clause of the constitution Captain Murray and others had been remunerated? Under what clause money paid into the Treasury had been returned in various instances? The right to take, gave the right to return that which was taken. In many instances this principle had been practised on. There was no law to authorize the punishment of a man for robbing the mail; but it was derived from the power of establishing post roads. The power of refunding money was one which had been often exercised. Mr. GARDENIER was in favor of an inquiry. It was not only proper that an inquiry should be made, but it was the bounden duty of the House to make it. A member of the House in his place had stated facts which if true undoubtedly entitled him to their interference. Our duty (said Mr. G.) is imperative. The case of the gentleman does not rest upon the question whether the sedition law was constitutional or unconstitutional, but upon the fact that he was not a proper object for the exercise of that law. For, if the statement made be correct, he was punished for uttering a creed which would not be improper for every member of the House; and I will say that subsequent events have shown the sincerity with which the gentleman did make it; that he had kept his promise most religiously; that it was not applicable to those men, or that time, any more than to the present, but was a creed on which he practised before and ever since, so far as his political course is known to me. It is a case in which the privileges of the members of this House are materially concerned. If under the sedition law for a letter written by a member of this House to his constituents, giving his view of public measures, he has been punished, it concerns the safety of this House that complete and perfect remuneration should be made. It is as important that every member should be permitted to speak freely to his constituents, as that he should without restraint address the Chair of the House. It was a case, therefore, which never ought to have been the subject of a judicial investigation, much less considered as a crime. The gentleman at the time followed the dictates of his conscience. To his conscience and his God alone should he be responsible. Sir, should we refuse an inquiry into this case, when we know that the fine of James Thompson Callender, for one of the most atrocious libels ever written in the United States, was remitted? When we know that it was remitted by the President of the United States, after the money had been received by the proper receiving officer of the United States, when it had passed out of the hands of James Thompson Callender into the hands of the officer of Government, and was, to all intents and purposes, in the Treasury of the United States, because there is no such thing as a treasury in which money is actually deposited--for a libel, too, in which the great Father of his Country was treated with a shameless indignity, which could not but have gone to the heart of every man? When the President of the United States was in that libel called a hoary-headed incendiary, should that fine be returned, and shall a gentleman in this House be fined and imprisoned for that which was not even improper? Shall we not restore to him that which others have been suffered to retain, and for which we have not brought to question him who restored it after it was in possession of the receiving officer of the United States--in fact, after it was in the Treasury? Let us not be guilty of this inconsistency. If the sedition law has gone to the tomb of the Capulets, and I believe it has, I am not one who wishes to bear up against the people's voice; the Government is theirs, and when they speak we obey. If under that law the Government has received money for an act which really, if the statement of the gentleman be true, could scarcely be considered an offence within the purview of that law, will you not give it back to him? Either give back the money in the case, or take measures to recover that money which was given back in the other. I am not for making fish of one and flesh of another. Whilst on this subject I will declare that I never did consider the sedition law as unconstitutional. Congress were competent to pass it. But, that parties will sometimes in the ardor of their course exceed the limits of discretion, and do violence to the milder feeling of the community in which they live, has been proved in the Adams Administration, and in that which has lately disappeared; and when they have cooled down, it is but rendering justice to the sense of the country to acknowledge their errors. No, sir, I am satisfied that all prosecutions for libels on the Government should be at least very hesitatingly sustained. You cannot draw a precise line by which you shall limit the right of investigation. The two things are so blended together that you cannot separate them. You must either make the Government supreme or the people supreme. I am for the latter. As Dr. Johnson makes Lord Chesterfield say, liberty and licentiousness are blended like the colors in the rainbow; it is impossible to tell where one ends and the other begins. Licentiousness is a speck on the eye of the political body, which you can never touch without injuring the eye itself. I hope and trust that with this investigation will be connected an inquiry into the prosecutions at common law in Connecticut. I have seen in the State of New York, but not under the present Administration, a defendant coming into court, begging only to be permitted to prove that what he had said was true; I have seen also an Attorney-General rise to prevent it: I have seen the truth smothered on the trial by men who were as clamorous against the sedition law as any loud-mouthed patriot in the country. I have seen them bringing almost to the block the victim who may only wish to prove the truth of what he said--which was denied him. I mention this to show that where parties are contending against each other, where there is a majority on one hand and a minority on the other, that which appears on paper proper for the protection of the Government, turns out to be for the oppression of the minority. In the nature of parties it cannot be otherwise. Therefore, in my opinion, the Government of the United States cannot render a greater service than by declaring it will not be accessary to any diminution of the rights of the citizen; that free investigation shall in all cases be permitted. Mr. G. made some further observations on the particular case of Mr. LYON, and concluded by expressing his hope that the resolution would pass. The question that the resolution be postponed indefinitely, was decided by yeas and nays--yeas 69, nays 50. MONDAY, May 29. Several other members, to wit: from Massachusetts, ORCHARD COOK; and from Pennsylvania, BENJAMIN SAY and JOHN SMILIE, appeared, produced their credentials, were qualified, and took their seats. WEDNESDAY, May 31. JULIAN POYDRAS appeared, produced his credentials, was qualified, and took his seat, as the Delegate for the Territory of Orleans. Mr. MCKIM presented a petition of thirty-five American citizens confined at Carthagena, in South America, under sentence of slavery, stating that, through means of falsehood and deception, they were induced to engage in the unlawful expedition of Miranda, fitted out from the city of New York, in the year one thousand eight hundred and six, and that they were captured by the Spaniards, and condemned to slavery, and praying that Congress will take their distressing case into consideration, and effect their release and return to their native country.--Referred to Mr. MCKIM, Mr. SAY, Mr. EMOTT, Mr. ROANE, and Mr. COCHRAN, to examine the matter thereof, and report the same, with their opinion thereupon, to the House. MONDAY, June 5. Two other members, to wit: EZEKIEL WHITMAN, from Massachusetts, and RICHARD WYNN, from South Carolina, appeared, produced their credentials, were qualified, and took their seats in the House. A message from the Senate informed the House that the Senate, having been informed of the death of the Honorable FRANCIS MALBONE, one of the Senators from the State of Rhode Island, have directed the same to be communicated to this House. On motion of Mr. POTTER, _Resolved, unanimously_, That this House will attend the funeral of FRANCIS MALBONE, Esquire, late a member of the Senate of the United States. _Resolved, unanimously_, That this House do wear mourning on the left arm for the space of one month, in testimony of their respect for the memory of the deceased. TUESDAY, June 6. Another member, to wit, WILSON C. NICHOLAS, from Virginia, appeared, produced his credentials, was qualified, and took his seat in the House. WEDNESDAY, June 7. Another member, to wit, ERASTUS ROOT, from New York, appeared, produced his credentials, was qualified, and took his seat in the House. FRIDAY, June 9. Another member, to wit, NICHOLAS VAN DYKE, from Delaware, appeared, produced his credentials, was qualified, and took his seat in the House. MONDAY, June 12. _Mississippi Territory._ The SPEAKER presented a petition enclosed to him from a number of inhabitants of the district east of Pearl river, in the Mississippi Territory, praying for the division of the Territory. Mr. POINDEXTER moved that the petition lie on the table. It would perhaps be disrespectful to the petitioners to reject it, although its contents would merit that course. There were three parties who must, by the ordinance for the government of the Territory, consent before the Territory of the Mississippi could be divided. One party was the Mississippi Territory, the other the State of Georgia, and the third the United States. Neither of these parties had consented. There was, therefore, an absolute interdiction to all legislation on the subject; and the House could, with as much propriety, refer a petition from a State to be exempt from general taxation, or to recede from the Union, as to refer this petition. Mr. BURWELL said he felt himself bound to oppose the motion for its lying on the table. If the request was wholly improper, the report of a committee to that effect would settle the question at once. Mr. BIBB was in favor of the motion; though, had a motion been made to reject it, he should have voted against it. Mr. MACON was in favor of a reference of the petition. No harm could arise from an inquiry into it. Mr. TROUP admitted the correctness of the remarks of the delegate from the Territory, but wished the petition to be referred to a committee for the purpose of an inquiry as well into the amount of population in that country as into its quality; whether it was lawful or unlawful. There were certain facts connected with this subject, perhaps not generally known to the House. In the course of last year, he had understood that a great many persons, amounting to perhaps three or four thousand, had crossed the Tennessee river, and fixed themselves on its banks, not only contrary to law, but the impression was that they had set out in defiance of the law, and had even gone so far as to organize themselves into military associations for the purpose. Mr. POINDEXTER observed that there had been a settlement contrary to the existing law on Tennessee near about a year ago; but that they were ordered to be driven off by the military force, except they would take permission to reside as tenants at will. Some had done so, and some had been driven off. Mr. TROUP said he knew that orders had been given to remove them, but of their removal and dispersion he had not heard. He said he had further understood that there were, in the county of Madison alone, two or three thousand intruders, and many of them settled on Indian lands, whose owners they excited to hostilities. There was another fact, of which the House might keep possession. Among these intruders was one of the name of Harrison, he believed, who claimed under what was called the Tennessee Yazoo claims, and who settled on the land with his retainers, and deliberately began to apportion it among them. Whether he had been dispossessed, Mr. T. said he did not know. It was absolutely necessary to ascertain the situation of that country, and therefore he should vote for the reference of the petition to a committee. The petition was ordered to lie on the table--67 to 27. TUESDAY, June 13. _Miranda's Exhibition._ The House went into Committee of the Whole on the following resolution, reported by the committee appointed to consider the petition of thirty-six citizens concerned in Miranda's expedition, and now confined in the vaults of Carthagena, South America: "_Resolved_, That the President of the United States be requested to adopt the most immediate and efficacious means in his power to obtain the liberation of the prisoners, if it shall appear to his satisfaction that they were involuntarily drawn into the unlawful enterprise in which they were engaged; and that ---- dollars be appropriated for that purpose." Mr. MCKIM observed, that he believed nothing further would be necessary for the attainment of this object than an application by the Government of the United States; he then moved to fill the blank in the resolution with such a sum ($3,500) as would defray the expense of sending a vessel there and clothing the prisoners previous to their return. Mr. RANDOLPH said he believed there would be no better time than on this motion to express the disapprobation which he felt of the report; for he was unwilling in his representative capacity, to give one cent of the public money for bringing back into the bosom of the body politic these unfortunate but guilty men. He knew how invidious a task it was to appear to lean to the side of inhumanity; he knew how very natural it was for the mind of man to relent after the commission of a crime, and to see nothing in a culprit but his misfortunes, forgetting his guilt; but there were occasions, and he took this to be one, where to lean apparently to the side of humanity is an act of as great injustice and cruelty to society as the Legislature can commit. What were the House about to do? To make an appropriation of money for an extraordinary purpose of foreign intercourse. Was not the President of the United States already invested with power to negotiate with the Spanish Government on this, as well as with any other Government on any subject? Was the President of the United States presumed to have turned a deaf ear to the cries of our suffering countrymen in captivity in a foreign nation? Mr. R. said this was not like a question of redeeming our countrymen from slavery in Barbary or Tripoli; but it was a question whether this Government would lend its countenance to that class of men who were concerned in the expeditions of Miranda and Aaron Burr. He for one said, that he would not consent to it; and that those persons who, above the dull pursuits of civil life, had enlisted under these leaders, might take for him, however he might feel for their situation as men, the lot which they themselves had selected. He said he considered them as voluntarily expatriated from this country, and among the articles of commerce and manufacture, which it might be contemplated to encourage by bounty and premiums, he confessed for one, that the importation of such citizens as these was not an article of traffic which would meet with any encouragement from him. So far from being afraid of any ill consequences resulting from the sparseness of our population, he was afraid that our population, (and experience has tested the fact,) sparse as it was in number, in quality was redundant. We have been told, said Mr. R., and I believe it, that but the other day the Foreign Office in Great Britain cast its eyes on Colonel Burr, and that they either did commit him--I understand that he was committed and stood so for some time, and was only released on condition of quitting the country--that they either did commit or threaten to imprison that unfortunate man. I want to know, sir, if he had stood so committed, in what respect his case, in a political point of view, would have stood contradistinguished from that of these petitioners? I can see no difference but such as, in my mind, would have operated to his advantage. There is an equality of guilt, but on his part a superiority of intellectual character which would have rendered him, if there is to be an accession to the State by bringing back to its bosom those who have voluntarily thrown themselves out of the protection of the country, a more valuable acquisition, or rather a less valuable loss, than these unfortunate men. It appears to me, sir, that in passing this resolution we shall hold up a premium to vice; for, if this proposition be agreed to, when some new Miranda or Burr comes forward with his project, he will tell his conspirators that they will have nothing more to do, should the matter turn out adversely, than to put up a face and tell Congress that they were involuntarily drawn into it. An extraordinary mode, to be sure, of volunteering to go against their will. These _involuntary_ volunteers will be told they will have nothing to do but throw the whole weight of the blame on the original mover of the expedition, and Congress will tax their fellow-creatures--who, poor souls, had not enlarged and liberal minds, and were content with the dull pursuits of civil life--for redeeming them, clothing them, and bringing them back again to society. I wish the committee to take the thing into consideration. As men and Christians our conduct is to be governed by one rule; as representatives of the people other considerations are proper. There is, in the proposed interference, no justice; there may be much mercy, but it is a mercy which carries cruelty, if not deliberate, the most pernicious of all possible species of cruelty, along with it. Suppose these men had been arrested and tried in this country, what would have been their lot? It is difficult for me to say. I am no lawyer; but I suppose, under the mild institutions in some of our States, they would have been condemned to hard labor for life. In what do they differ, to their advantage from other felons? In nothing. Who would step forward to rescue them from that punishment due to their crime if convicted by our own courts? Nobody. Everybody would have said that they deserved it. Now, on the contrary, having escaped the hand of justice in this country, and fallen into the grasp of the strong hand of power in another country, we are not contented to let them reap what they have sown; we are not contented to leave them in the hands of justice. I believe that there exists a proper disposition in the Executive to interfere, where American citizens are wrongfully treated abroad. And, shall we come forward and open the public purse, and assume on ourselves the responsibility of that act which the President refuses to do, and thus share among us the imputation, such as it may be, which society chooses to cast upon us in consequence of it, instead of letting it fall singly and individually upon him, in case he chooses to incur it? No, sir. I have no disposition to pass this resolution to take the responsibility upon myself. In short, I should have been glad, if instead of telling us that these men are unfortunate and miserable, (for who are so unfortunate and miserable as the truly guilty?) that the members of that committee, or the respectable chairman himself, had come forward and shown the claim of these petitioners to the peculiar patronage of the country. So far from any disposition to bring them back, I would allow a drawback or bounty on the exportation of every man of similar principles. Mr. EMOTT said, that as he had been a member of the committee whose report was now under consideration, he felt the propriety of making a few observations to show the expediency of adopting the resolution. In order to obtain the release of these miserable and deluded men, it was necessary that the Government should interfere, because the Spanish Government never would release them till such application was made. The only money necessary to be paid was not to the Spanish Government, but to defray the expense of bringing back the prisoners. It was not to buy their liberty, but to employ a person to go there to request it. It had been said that the President had power to attempt the release of these persons without any resolution of the House. Mr. E. said he would not enter into that consideration. He knew, if the President had the power, that he had not chosen to exercise it; and if the House could find from the statement of the situation of these men that they ought to be relieved, they should not refrain from expressing their opinion, merely because the President had the power and would not exercise it. It might be necessary, Mr. E. said, to call to the minds of the committee the situation of these men. They were persons employed by Miranda, in his expedition, who, he undertook to say, did not know that they were going on any expedition contrary to the laws of the country. When taken, they had been tried by the Spaniards on a charge of piracy, and condemned to lie in a dungeon for a term of years. They prayed the Congress for its interposition in their behalf. It had been said that these men knowingly engaged in this expedition. Mr. E. said he believed that they did not; but, admitting, for a moment, that this was the case; that they did know the pursuit on which they were entering, they should not, for that reason alone, be suffered to lie in prison. Let it be understood, said Mr. E., that this expedition, whatever it was, was carried on, in the face of day, in the city of New York, and that equipments of the vessels and enlistments were made without interruption in the face of day. And would these persons believe that they were going on an unlawful expedition? They might have enlisted from the best motives; and, supposing that they had enlisted under the knowledge that they were going on an expedition, yet seeing that it was carried on in open day without interruption from the Government, he much doubted whether these poor men ought to be suffered to lie in prison. But, putting motives aside, these men declare that they did not understand the nature of the service for which they were engaged; and this statement the committee who made the report had brought themselves to believe. Let it be recollected that these unfortunate individuals were lying in prison; and, although they had, by some means, forwarded a petition here, they could not attend in person to urge their claim to relief by proofs presented to the House. The persons who procured these men to go on this expedition certainly would not be very willing to come forward and give testimony; because, by so doing, they might criminate themselves and render themselves liable to the operation of the laws of their country. Considering that these persons were removed thousands of miles from us, that they were unfriended, and that the persons who alone could prove that their intent was innocent, would not come forward for fear of criminating themselves, he thought these men were entitled to commiseration, and he believed that it was in his power to show two or three circumstances which would convince the House that they had no knowledge of the nature of this expedition. The first circumstance was the extreme improbability that these men would have engaged in this expedition, if the nature of it had been explained. Had Mr. Smith or General Miranda gone to these men and said, "we are going on an expedition against the laws of the country, and, if taken, you will be punished under the laws of one country or the other," it is extremely improbable that they would have engaged. It is not likely that Miranda or Mr. Smith avowed their purposes, and told them that they were going on an expedition hostile in its nature, and against the laws of the country, because its object was to revolutionize a nation in amity with the United States. It is impossible that these men should have known the nature of the expedition, when it was not known to the Government here, however public. This circumstance, to me, is conclusive, to show that these young men did not know it. There might have been persons who did; if you please, Mr. Ogden, who furnished the ship, or others, but it is impossible to believe, that these men, who were mere soldiers for carrying on the expedition, knew the nature of it. I am convinced that these persons, all privates--for the officers were executed--did not know why they did enlist, or that the corps was for the purpose to which it was actually designed. I have said, and perhaps every person here knows, that the whole of the business was carried on in the face of day. Here were General Miranda and Mr. Smith coming to the seat of Government, and back to New York, procuring clothes, enlisting men. Can it be conceived that all this could have been carried on, if General Miranda had not meant to conceal it from the Government? But it is in my power to furnish something more than mere conjecture on this subject. The committee will recollect that a greater part of this transaction took place at New York. There the men were to rendezvous, there the vessel was furnished, and to that State most of the young men who are now in South America did belong. In that State this matter was the subject of judicial investigation. Mr. Smith and Mr. Ogden were indicted. I will read a part of the evidence given on the trial, which will satisfy any one, at least it has satisfied me, that these men had no hand in it. Mr. Fink, who was produced as evidence on the part of the Government to convict Mr. Smith, was the person who was intrusted with enlistments. On the same trial there was one of the persons who has actually enlisted who deposed that the same information which Peter Rose received was given to others. This man also was a private in the expedition, and swears that the person who employed him told him that he was to be employed in the service of the Government; that he was to be carried to Washington by water and thence to New Orleans. The men who now petition Congress are persons who are placed precisely in the same situation. We find, in the course of the trial, that the person employed to enlist the men, declares that the person employing him refused to tell him for what purpose they were to be enlisted, and, of course, he could not inform those whom he enlisted. Mr. E. said he had already remarked the extreme difficulty under which these persons labored, that they were at a distance of several thousand miles from this country, incarcerated, and friendless. He had satisfied his mind that they had engaged in this business unknowingly and unwillingly--and, what was now asked of the Government? That they should expend large sums of money for the purpose of buying them out? No. All that the Spanish Government wanted, he undertook to say, was, that a request should be made by the Government of this country for those men; and all the money required for this service, was money enough to send an agent there and facilitate his return. Nothing had been said by him, Mr. E. remarked, of the peculiar sufferings of these men; but there were representations enough, to show that they were chained naked in a dungeon, without clothing, and without wood. Some had died and others must die. He hoped, therefore, for the reasons which he had given, that the committee would be satisfied that these men were not guilty of crime. If not guilty, he hoped there could be no doubt that they were a proper subject for the interference of the Government. Mr. BACON observed that the conclusion which the gentleman from Virginia (Mr. RANDOLPH) had drawn, rested upon the idea that the men were guilty. If they were guilty, they certainly should not receive the benefit of the interposition of the Government of the United States. They had no claim on the United States when considered as criminals, or as men who had voluntarily engaged in this service. The report of the committee did not state this to be the case. I acknowledge, said Mr. B., that they are guilty in some respects, having innocently transgressed the laws. If they are guilty in the eye of justice, I contend they ought not to have relief. The report of the committee states, that, under a persuasion that the facts set forth by the petitioners were true, they were induced to submit this resolution. The committee had evidence, which they deemed competent, to prove that these men were not guilty men. In what respect, then, are they to be compared to Aaron Burr? No man will say that he did not proceed on his expedition with his eyes open, or that he could plead ignorance. The fact in relation to these men appears to be that they were inveigled; that their offence was involuntary, not as respected engaging in what they thought the service of the United States, but as to going abroad, for against their consent they were forced into the service. Therefore, with great truth, it might be said that they were scourged to the service. If this was the fact, as the committee appear to have believed, I ask, in what their case differs from that of men taken captives by the Algerines? Those men taken by the Algerines are engaged in lawful commerce; these poor men are engaged in an unlawful act, but not knowing it to be unlawful, and believing it to be correct, they are as innocent, in fact, as those who act innocently. The gentleman says, suppose they were to return to their country, would they not be punished? If the facts, as they state them, are correct, as I believe them to be, I do not believe that they would be punished. The law does not punish a man because he does not act, but for the _quo animo_ with which he does it. Mr. TAYLOR said if he could view this subject in the light in which it had been viewed by most of its advocates, and particularly by the gentleman from North Carolina, (Mr. PEARSON,) he should think it was the duty of this Government to make exertion for the release of these people; but even then he should inquire whether any exertion in their favor would not rather do them an injury than a service; for it would be recollected that every gentleman who had spoken seemed to consider the mercy which was asked to depend upon and to be bestowed by the United States. Were I a Spaniard, and attended the debate in this House, I should think that gentlemen in favor of the resolution contemplated an infraction of the rights of the nation before whose courts, and by whose laws, these men were condemned. These fine appeals to mercy and humanity would apply well before the power possessing the right to bestow mercy, but are not applicable to the feelings proper to be exercised on this occasion by this House. I say that it is one of the attributes of Government to punish those who have infringed or broken the laws of the country. These people have been condemned by a Spanish tribunal; it is by that Government alone that mercy is to be shown; and an exertion by this House in attempting to bestow mercy upon these people is an infringement of that right. I challenge gentlemen to show me an instance in the annals of diplomacy of a like nature with this proposition. I recollect one instance, but I have heard no gentleman propose to go so far. Oliver Cromwell, when a member of the British Commonwealth, was imprisoned by the inquisition, ordered his admirals to draw up before the harbor and demand his release. This is the only case I have met with in the course of my reading, of an attempt by one nation to relieve criminals condemned by another nation under its own laws. If this view be a just one, it certainly becomes a matter of great delicacy. If this Government had never been by the most secret whisper implicated (unjustly, as I firmly believe) in this transaction, still it would have been a subject of the greatest delicacy for the Government of the United States to interfere. What will the Government of Spain, Junta, King, or Governors of Spanish provinces to whom you apply, say to you on this subject? Why they will say--"We have long suspected, we have heard from your own quarter, that you were implicated in this expedition; you now give us proof; you have come forward in an unprecedented manner and interfered in a case with which you have no business, a case which is fully embraced by the sovereignty which we ourselves exercise over our own courts." Will it not at once be inferred that these assertions throughout the United States had been true, and that this Government was implicated or concerned, or, to use the words of yesterday, that this Government had connived at such an expedition? You will but render the sufferings of these people more rigorous. It is not to be conceived, although the gentleman from Massachusetts and others have acquitted the Government of participation, that the Spanish Government will do so also. Why, even in our cool and calm situation, you see that suspicion of the connivance of the Administration is not yet quite done away--and do you suppose, sir, that the Spaniards, against whom repeated expeditions have been made, at a distance from those sources whence conviction might flash upon their minds, will form the same opinion of the subject that we do? Fear forms a bias on their mind; and we form a conviction on the side on which we feel interested. Gentlemen, in order to induce us to grant pardon to these men, which we have no power to do, have told us that they are innocent; because, forsooth, they themselves have said so. I recollect, sir, once in a conversation with a most eminent barrister in the State in which I live, who had often performed the duty of counsellor and advocate in our State, he informed me that in a practice of thirty years, in the course of which he had been concerned in the cases of many culprits, on many, nay, on all occasions, he put this plain question to his client: "I am your counsel; it is necessary for me, in order to make the best possible defence of your cause, to make the best statement in your favor, to know whether you are guilty or not." He declared that he had never yet met with a man who acknowledged that he was guilty. I believe that this disposition to appear innocent, is inherent in human nature. It is natural for these men to say that they are not guilty; they said so to the court before whom they were tried. Why were they not liberated? Why was not that mercy which is so pathetically called for bestowed on them by that tribunal before whom the case was examined? If they are the immaculate and almost sainted victims which they are described to be, why did not the court which heard the testimony on both sides of the question bestow that clemency asked of us? I should presume, that when all the circumstances came out before the court, they were not favorable to the petitioners; and it is a respect due from this Government to the acts of that Government that such a construction should be put upon this matter. If we are to distrust the acts of the Spaniard, because, as we are told, he is vindictive and cruel, he might justly say that we have not done to others as we would be done by. We should place the President of the United States in a very unpleasant situation indeed by requiring him to demand these men, if we would not also be willing to go to war for them. As our navy is now afloat I would propose as an amendment to the project, if gentlemen are serious in their determination to rescue these men, that our fleet shall sail before Carthagena and compel the Spanish Governor or Junta to give them up. This is the only mode of interfering with a matter of this kind, which is sanctioned by precedent, as I have before stated. It would seem, sir, as if the passing scenes of this world were entirely forgotten. The British Government has been suspected of having connived at this expedition as well as the Government of the United States. They have received Miranda into their bosom; and on the examination on the trial of Sir Home Popham, it did appear that he had received orders to sail for a particular port of that continent to create a diversion of an attack expected to be made in another part of it. But what have the British Government done on the subject? Have they not considered it a delicate one? Have they not in their conduct given us the most sound and wholesome advice on the subject? Although I believe these men were employed to answer a purpose all-important to her, yet she has not extended towards these sufferers in her own cause that clemency which is asked at our hands. These men who were suffering in her employ, demonstrably acting in furtherance of her interest, have not met with the clemency of the Government; and the case is more strong when it is recollected that since the capture of these men, although previously at war with Spain, Great Britain was not only at peace but in alliance with that nation. With all these favorable circumstances, when but a hint from the British Ministry in favor of these people might have released them, yet being so delicate a subject that it has not been touched by them, shall we, who have been crusading and exerting every nerve for the releasement of our seamen, and with all our efforts have been unsuccessful, shall we start on a fresh crusade for these men, when the efforts of the Government in the other cause, in so noble, so just, and so humane a cause, have as yet proved unavailing? Shall we engage in a contest for these people, who are acknowledged justly to be in the power and under the sentence of the courts of another nation, whilst the honest American tar, guiltless of harm, is writhing under the lash of every boatswain on board a man-of-war? If you will go on and reform the whole world, begin with one grievance first; to use a homely phrase, do not put too many irons in the fire. Sir, if the Spanish nation has any feeling for its sovereignty, it would spurn your request. Only suppose that nation to possess the same feelings which actuate every breast in this House; which actuate the American people. Suppose the claim of Mr. Burr to citizenship in Britain, on the ground of once a subject always a subject, had been recognized by the British Government. Suppose that he was suffering in chains in some of your prisons, and because they had heard that Mr. Burr might have been innocent, the British Government had asked his release, would not the people of America have spurned the request as an indignity to the nation? And may we not suppose that these proud Spaniards, as they are called, may have feelings of a like nature? I believe, sir, that the course proposed would only add rigor to their sufferings, weight to their chains. Mr. LIVERMORE asked if the committee which made this report had not before it evidence that certain British subjects concerned in Miranda's expedition had been liberated on the application of some officers of that nation? If they had it would be a fair answer to the eloquent speech of the gentleman from South Carolina. Mr. RANDOLPH said he did not think that the information asked for by the gentleman was at all material to this case. It was a matter of no consequence at all, as respected the statement made by the gentleman from South Carolina on (he had no doubt) very good grounds. What, said Mr. R., has been the situation of Great Britain in relation to Spain? Great Britain, at the time the expedition was undertaken, was an enemy of Spain--was at actual war with Spain--and therefore in a subject of Great Britain it might have been highly meritorious to annoy Spain, either at home or in her colonies to the utmost extent in his power, without any direct authority from his Government. Subsequently to that time, however, Great Britain has become the ally of Spain in consequence of the revolution; and at that time Great Britain obtained from persons exercising the authority of government in Spain the release of these prisoners, which it is perfectly natural Spain should then have granted. But suppose, instead of that change having taken place in the relations between Great Britain and Spain, Bonaparte had quietly succeeded in putting King Joseph on the throne of Spain and the Indies, and applications had then been made; or suppose that the application had been deferred until now, and the power of the House of Bonaparte was as complete over the colonies in South America as we have every reason to believe it is over the European possessions of the mother country, would the British subjects in that case have been released? It is an unfortunate circumstance that no question can be agitated in this House and tried upon its own merits; that every thing which is, has been, or may be, is to be lugged in on the question before us, to the total exclusion of the merits of the case, and in this way, instead of a session of three and six months for doing the business of the nation, if every question is to be tried in the manner in which it appears to me this has been, we may sit to all eternity and never get through it. I lay no claim to greater precision than other men; but really I cannot perceive what kind of relation, what kind of connection exists between most of what I have heard on this subject, and the true merits of the case. Gentlemen get up and abuse the Spanish Government and people, and what then? Why, it appears all this is preliminary to our making an humble request of this Government and people that they shall grant us a particular boon. To be sure, sir, all this time we do plaster ourselves unmercifully--we lay it on with a trowel--and gentlemen seem to think that if we sufficiently plaster ourselves, our President, and people, and be-devil every other Government and people, it is sufficient to illuminate every question. And this is the style in which we speak to Governments perfectly independent of us!--A very wise mean, to be sure, of inducing them to grant the pardon of these people as a favor to us. Sir, it would be a strange spectacle, to be sure, when this Minister that is to be, this sort of anomalous messenger whom you are going to send, I know not exactly to whom; whether to the Junta, or persons exercising the power of government in the provinces, or to the Government in Europe; when this Minister goes to Carthagena or elsewhere, if he should carry to the Viceroy along with his credentials a file of papers containing the debates on this question. Why, sir, like Sir Francis Wronghead, we appear all to have turned round. My honorable friend, the gentleman from South Carolina, (Mr. TAYLOR,) spoke of the crimes of these men. Gentlemen on the other side, who wish them to be pardoned, tell you of nothing but of their innocence, and the injustice of those who condemn them and now have them under punishment. Two more such advocates as have appeared in favor of this proposition would damn the best cause ever brought before any House or any court in Christendom. The gentleman from New York, (Mr. EMOTT,) who spoke yesterday, certainly very pertinently, and very handsomely, tells the House that in this case no other money than that of the United States, will be received; that with a sort of Castilian fastidiousness, those persons acting for the Government of Spain will not touch any money which shall not be offered in the quality of public money. I believe no such thing; and moreover, I wish it to be distinctly understood that the question of money is not the question with me; and that to suppose it necessary for the Government of the United States to interfere for the purpose of raising so pitiful a sum as $3,500 for the relief of these unfortunate men, whose situation I most seriously deplore, is a libel upon the charity of this country. I believe, notwithstanding the public impression on this subject against the petitioners, that the money could be raised in half an hour in any town in the United States. I believe it might be raised in that time in the city of Washington. It is not a question of the amount of money wanted; it is, whether the Government of the United States shall lend its countenance to persons situated as these unfortunate people are? Sir, had we at that time been at war with Spain, as Great Britain, something might be said in favor of these persons. But we were not at war with Spain, and these men knew it; and I believe they knew at least as well as I know, that when a man is recruited for _public service_, as they say they thought to be their case, he is immediately taken before a justice of the peace and sworn. This part of the ceremony, however, is not stated to have taken place. To be sure, sir, the gentleman from New York (Mr. EMOTT) said, I believe, every thing that could be said in favor of those unfortunate people, and really almost convinced me that we ought to make this interference; but unfortunately for him and for his cause, other advocates rose up in its favor and placed the subject in a situation not only as respects the majority of this House, but as respects that Government with whom intercession is to be made, which will completely foreclose any attempt at relieving the sufferers. It is not possible that the majority of this House, or that the Spanish Government, can be affected in any other manner than with disgust and indignation at such stuff. The gentleman from New York told us that these were ardent young men, who were anxious to go to Caraccas for the purpose, I think, of correcting the despotism which existed in that country; or otherwise, political Quixotes. This, I take it, will operate little in their favor with the Spanish Government, however it may in ours. I confess I feel very little sympathy for those who, overlooking their own country, and the abuses in their own Government, go in search of political adversaries abroad--go a tilting against political despotisms for the relief, I suppose, of distressed damsels compelled to live under them. The question was now taken, and the votes being affirmative 62, negative 61, the SPEAKER voted in the negative--the votes then being equal, the question was lost. MONDAY, June 19. _The Batture at New Orleans._ The House proceeded to consider the resolution submitted by Mr. MACON, on the sixteenth instant, in the words following, to wit: "_Resolved_, That so much of the message of the President of the United States of the seventh of March, one thousand eight hundred and eight, as relates to the batture in the suburbs of St. Mary's, adjoining New Orleans, and the documents accompanying it, together with the petitions of Edward Livingston, and the petitions of the citizens of New Orleans on the same subject, and the documents which accompanied the same, be referred to the Attorney-General of the United States, and that he be instructed to receive and collect such other testimony as may be necessary to ascertain the title of the United States to the before-mentioned batture, and that he be directed to report to this House, at the next session of Congress, his opinion as to the validity of the claim of the United States to the said batture." Mr. BURWELL thought that this was not the proper course to pursue; but that the course recommended at the last session was the one, viz: to give the petitioners the right of appeal from the decision of the Orleans court to the Supreme Court, or to give the United States the same right, should the decision be against them. He could see no advantage in the procrastination now proposed, nor any injury to the United States or the city of New Orleans, in the course which he advocated. He doubted, although the letter of the law of 1807 might cover this case, whether it was ever intended that that law should operate as this had done. My intention, said he, in voting for it, was that it should apply exclusively to the Western lands, commonly called the Yazoo lands, and such other lands as were occupied by hundreds who might be formidable from their numbers. To undertake jurisdiction on questions of property is taking upon ourselves the functions of another department of the Judiciary. The case involves important points of law--and let me ask, whether the gentlemen in this House are so well read in law as to be able to decide such an important point as this? It does appear to me that on all the questions of private property arising in the United States, where the question of right is not to be brought before this House, we ought to consult the convenience of the parties by promoting dispatch. On the question whether this property belong to the United States or to the petitioners I am completely ignorant. Nor would I have it inferred that I believe the petitioner to have a right to the property; I take it that the claim of the United States must be good, or the inhabitants of Orleans would not be so zealous in the support of it. Mr. POYDRAS asked for the reading of a letter which he had received from the Governor of Orleans Territory, which was accordingly read. The letter states, that if it were possible that the committee to whom Mr. Livingston's claim was referred could now visit New Orleans, they would be convinced that the batture, now covered with water, was in fact the bed of the river, and, therefore, could not be private property. Mr. P. stated the history of this piece of alluvion at some length, and the circumstances under which it had always been deemed public property. Mr. SHEFFEY said that before passing this resolution, gentlemen ought to ascertain what the Attorney-General could do in this case. He could not compel the attendance of witnesses, or collect testimony of circumstances which occurred a hundred years ago; and unless he could do this, it was impossible he could examine the title, for testimony as to facts was essential to enable him to form a correct opinion. What influence could the opinion of the Attorney-General have? Was the right of the citizen to fall prostrate before such an _ex parte_ opinion or statement as that might be? If it was not to have influence, why thus evade a decision on the prayer of the petitioner? If it was to have any influence, it must be a pernicious one, because founded on _ex parte_ testimony. Would the House go into the merits of the case on this opinion, when obtained without affording an opportunity to the party interested to prove that the law was not correctly expounded nor the facts correctly stated? Surely not. If they did not, if they heard opinions on both sides, they converted this House into a judiciary tribunal. Was this body calculated for that branch of Government? No; this, Mr. S. said, is a Government of departments, each of which ought to be kept separate. What, sir! is this a question of right between the United States and an individual, and we are about to take it into our own hands, to wrest it from the constitutional authority, and decide it ourselves? I hope we shall not; and, therefore, I am against this proposition. What does the Attorney-General state in his report? Aware of the impropriety of his deciding, he tells you--what? That the usual course, where the rights of the United States have been involved, has been to appoint commissioners to hear and decide. Here the Attorney-General tells you it is not proper for him to decide. And I should never wish to see the case in which the Attorney-General's opinion is to give authority for dispossessing an individual of his property; for if it can be done in one case it may be in every case. Any individual may be driven from his property by military force, and then his title be decided by an ill-shapen, one-sided statement and opinion of the Attorney-General. Against such a decision I do protest. Is it because you have power on your side, sir, that you will not submit to a judicial decision of this question? If there be a controversy about a right, there ought to be a judicial decision. I, sir, have been unable to see how an individual having property, in which he was put in possession in 1804 or '5 by a judicial decision, could be disposed of it by the act of 1807, the operation of which was limited to acts done hereafter, that is, after the passing of that act in 1807. That law too speaks of "lands ceded to the United States." Was the batture ceded to the United States? I say not, because it was private property before the United States possessed the sovereignty of the country. By the treaty of 1803 with the Government of the United States, the rights and property of the inhabitants of Louisiana was secured to them. What then is the inference from this state of the case? That the United States got possession illegally, in defiance of judicial authority. I am sorry to see that the judicial authority has been set at defiance, and the Presidential mandate carried into effect at the point of the bayonet, right or wrong. This was the case. Those who were put in possession were ousted by military force. Let me not be understood as throwing odium on the Executive; far from it. I believe the Executive acted conscientiously, but upon an _ex parte_ statement. The President was never told that the case had been judicially investigated. Those facts were taken for granted, on the other hand, which did not exist, and those which formed the foundation of the true merits of the case, were withheld. Mr. POYDRAS spoke at some length in reply to Mr. SHEFFEY, and in defence of the title of the United States. The batture had many years ago been considered as public property, and no one who examined the circumstances of the case could for a moment doubt it. He said that it had never been claimed as private property until after it came into the possession of the United States. He hoped the rights of the public and of the people of New Orleans would not be trampled upon to grant the petitioner his prayer. Mr. MACON said that he was himself in favor of giving the right of the United States to the property to the people or corporation of New Orleans, and letting them and the individual contest it. There was nothing new, however, in the reference of a subject to the Head of a Department, whose opinion would have no more weight than reason, and so far only ought it to have weight. Mr. M. said he had no more desire to interfere with the judiciary than either of the gentlemen who had spoken. If provision was made for trying this case, must it not be extended to all others? In order to do justice, it must be done to all. Had not a special court been refused in relation to a property of much greater value than this? Before Congress made a special court for a certain case, they ought to look at the consequences. It was departing from the general system of the nation to appoint a court for a special case. Perhaps there was something in this case which differed from other cases: but he doubted whether it would warrant the appointment of a special court. Mr. M. said he saw no other way of treating this subject but by letting it go before the courts already organized. If the right was in the petitioner, be the consequences what it might, the city of New Orleans had no right to take it away from him. Mr. TROUP observed that this case was probably one which would fall under the old maxim, _nullum tempus occurrit regi_ or _reipublicæ_. It appeared to him that there was a constitutional difficulty in this case, which did not appear to have suggested itself to the mind of any gentleman. First, has the United States a claim, either real or disputed, to this territory? Whether disputed or otherwise, provided the claim be asserted on its part, the question is, has the Congress of the United States a power to decide the validity of that claim? And if it has, is it proper so to decide it? What is the subject-matter in dispute? Public property; and what species? Landed. Then the question results, has Congress a right, in order to determine its title, to refer it to any tribunal whatever? I contend not; the right to public property was originally in the people of this country; they could never be divested of their great public right to the landed property of the nation, but by their express consent. They did give that right to the Congress of the United States, in declaring that it should have power to dispose of and make all needful rules and regulations concerning public territory. Would it have had that power, if this right had not been expressly delegated? I know that, under the old Articles of Confederation, Congress did undertake to legislate as to property; but it was always questionable whether they had a right to do so--and this was not the only point on which Congress did exercise powers which were brought into question. The right to determine claims to public property is not only guarantied exclusively to Congress by the constitution, but the practice has been invariably pursuant to it; it was so in 1807. The Government not only asserted its right in the first instance, but asserted its power to enforce the right at the point of the bayonet. If the public have always been in possession of a certain property, the man who enters on it without their consent is a trespasser on that property. Upon this view of the subject, there is a constitutional difficulty on which the House should decide, before it entertains a motion for delegating a power to decide this question to any tribunal or commission whatever. Mr. BOYD said, admitting all the gentleman had said to be true, his observations did not apply to this case. He had spoken of the right to public property. The question now was, whether this was public property or not; if it were certainly public property, on which ground the gentleman rested his argument, there could be no question on the subject. It was asked only before they decided between the individual and the United States on the right to land, not confessedly public property, but claimed as such, that fair investigation should be had. Mr. B. disclaimed the power of deciding judicially upon the subject; it was a right which he had never thought of this House claiming. A delay of justice was a denial of it. The individual petitioning had been in possession of the property; it had been taken from him by force, and he now asked a trial of his title before a competent court--and this opportunity, Mr. B. said, he ought to have as speedily as possible. Mr. RANDOLPH said he should vote against that report. He said it was no part of his intention to deliver any opinion on the merits of the claim, although he had devoted not a little of his time to the study of that question, for two reasons: first, that it would be a prejudicated opinion, inasmuch as that was not the question which the House were called upon to decide, even if it were competent to decide it. I am extremely sorry, said he that the law of 1807 has been brought into view of this House by my friends from North Carolina and Georgia, and for this reason: that that law has no bearing at all on the present question. Its object was wholly different from that to which it has been misapplied. What, sir, was the object of that law? To defend against a conspiracy, I may properly term it--against the lawless violence of confederated associations, a vast property. How has it been applied? Not to a great public property, but to a speck of land, to which, as I understand it, a single individual, or at most three or four, put in a claim. Such an application as that of the law in question was never intended by the Legislature; and, if applied to such a property as the batture, and to the case of a single individual, may be applied to the property of every man in society. What is the doctrine of my friend from Georgia? That the public are always supposed to be in possession of the national domain. True, sir, and it is also true that those who enter upon it and endeavor to appropriate it to themselves, are trespassers, and as such, may be resisted by force. But that is not the case in the present question--very far from it--for the public never had been in possession of the property in question. Without attempting to enter into the merits of the real title to the land in question, let us take it on the ground of the right of the citizen. A citizen comes before this House, and complains that he is dispossessed of his common right by arbitrary power. If, after a cause has been heard by a court, and a citizen put in possession of a property, by a decree of that court, he is dispossessed of it by military violence, where, if not before this House, is he to prefer his claim for redress? There is no court before which he can go, because the court which is the last resort in this case has already unavailingly given its decision. There is no court of appeal, no superior tribunal, and if there were, and a decree of the Supreme Court obtained in his favor on the appeal, what is any decree to avail against armed men--against muskets and bayonets? But this is not the only reason why I am sorry that the act of 1807 has been brought in to apply to this case. It is because, if this House can be once prevailed upon to consider this case as analogous to the Yazoo case, many most injurious consequences must follow therefrom. The first is, that that odious and supremely infamous claim will be put upon a ground which it is by no means entitled to occupy; and I entreat my friend from Georgia, and those whose minds are unalterably made up on the Yazoo question, not to give their enemies such a prize as they must have on us, if we agree to confound the Yazoo claim with that before the House. There is no sort of analogy between them. On the other hand, sir, supposing the right to be in the United States, I beg gentlemen not to create so forcible an interest against the rights of the United States as will infallibly be embodied against it if we confound the two. I have no idea of giving the Yazoo men such a handle. Again, let us suppose, if we can suppose it, that the right is in the petitioner; may it not, supposing a great majority of the House to be against the Yazoo claim--we do not know how they are disposed--may it not create an unjust bias against the petitioner? So that in whatever aspect we view it, it is not only impolitic, but, what is worse, extremely unjust to attempt to identify the two cases. And, sir, it is a matter of curious speculation, that while the act of 1807 has been brought into operation in the case of a solitary individual and a little speck of property to which it was not intended to apply, even supposing the case in question to to have arisen subsequently to the passage of that act; that, although it has been misapplied in this case, it has not been applied to the case to which it was intended to apply, and for which it was enacted; for, if I understood my friend from Georgia a few days ago, some hundreds or thousands of intruders have set themselves down on the public lands, and the public force has never been employed against them. On the contrary, the artillery of Government has been brought into play against a single individual. It was, indeed, said that these intruders had agreed to remain as tenants at will; but, let them remain till they are sufficiently strong, and they will give you another chapter in the history of Wyoming; for, after they are sufficiently strong to hold territory, although the arm of Government has been applied successfully to oust a single individual put in possession by a decree of a court, you will find it nerveless to expel these men. With regard to the doctrine _nullum tempus occurrit reipublicæ_, it is a dangerous doctrine, if carried to the extent to which I apprehend my friend from Georgia would carry it. I venture to say that the abuse of that doctrine in the celebrated case of Sir John Lowther and the Duke of Portland, which created one general sentiment of indignation in the British nation--an attempt under that maxim to deprive a subject, hostile to the Court, of property of which he had been long in possession, for the purpose of transferring it to a minion of the Court--that case, with all its aggravated enormities, does not come up to the case before the House; and I speak without reference to the question whether the petitioner has a right or not to the property in this case. The question of right is not before the House, and that question, decide which way you will, can have no sort of weight in the vote which the House ought to give. The question is this: Having been long in possession of a piece of land, the title deeds destroyed, records burnt, and possession the only title you have to show, an attempt is made to dispossess you of the property; a decree of court confirms your right; if the individual, under these circumstances, can be turned out of possession by main force and strength, and that, too, military force, there is an end in the right to property of every man in the country. Sir, I have been astonished, and grieved and mortified, to see so little sensation created in this nation by the procedure in question. It strikes at the root of every thing dear to freemen. There is an end of their rights. What, then, is this case? An individual comes before us, and says, that after having been put in possession of a piece of land, (I speak not of the validity of his title; it is not concerned in this question,) he was dispossessed by military force of this property. These two facts I do not understand any member of this House to deny. And what does he claim? He claims of you, as the guardians of the rights of every man in society, _justice_. And where do you send him? To the Attorney-General. I will suppose that in the Lowther and Portland case, the Duke of Portland had been referred to the Attorney-General. Would the English nation have endured it? No, sir. Much less would they have endured, military as the nation is becoming by the introduction of large standing armies, that he should have been dispossessed of his property by an armed military force, at the fiat of the Crown. The question is, what should be done? Sir, what should not be done is perfectly clear. It ought not to be done that the petitioner should be sent to the Attorney-General, who has already given an opinion on his claim, though that is very immaterial, which opinion it seems we cannot find. If I understand any thing of this Government, however, it ought to be on record, and this return of _non est inventus_ ought not to have been received. All that we have to do, it appears to me, is to make a provision, in the nature of a declaratory law, not amending the act of 1807, but, declaring what the law is; and we ought to quiet the rights, and the mind too, of every man in society, by declaring that, by the act of 1807, it was not intended to authorize the President of the United States to interpose the bayonet between the courts of justice and the individual. This power never has been given, never was intended to be given. Mr. GOLD said that this was one of the most important subjects that had ever been brought before the House. He did not mean to enter into the merits of the case. The gentleman from Virginia had very clearly expressed all those sentiments which every man must feel on hearing the history of this case; and as regarded the ground taken, of _nullum tempus occurrit_, the gentleman had repelled it very properly--and indeed in that country whence the maxim had been derived, whenever it was attempted to be put in force against ancient possessions, it had been executed with great difficulty. It is in the very teeth of _Magna Charta_, which says that a freeman shall not be dispossessed of his freehold without a better right is ascertained. There are a variety of forms by which the right is guarded. If I, said Mr. G., understood the gentleman from Georgia, (Mr. TROUP,) he considers it a sacrifice of the rights of the United States to permit a decision on its property to pass into the hands of third persons. Even in England the prerogative is not carried so far. The Crown has frequently consented that the right of Government should pass into the hands of third persons, viz: of commissioners, for the purpose of investigation. I will not trouble the House with lengthy remarks on this subject. I can hardly advert to it without feeling all that has been much more eloquently expressed by the gentleman from Virginia than it is in my power to express it. Let gentlemen look around and see if they can find a precedent for this transaction. And when we consider it, every man's feelings must be operated upon too strongly to permit him to argue. The course suggested by the gentleman from Virginia must prevail, or we no longer live under a Government of laws, and those principles on which it is founded are destroyed. The man ousted must be put in possession, must be restored to the possession of the property which the hand of violence has wrested from him; and I hope that a proposition to this effect in a proper shape will be presented. Mr. GHOLSON said he thought it would better become the character of this assembly to discuss every subject with calmness and deliberation, and on its own merits, than to endeavor to influence the decision by an appeal to the passions. It was important that such a course should be pursued, whether with reference to a great political principle or to the interest of the individual whose rights were said to have been wantonly prostrated at the Executive will. I (said Mr. G.) have been early taught, and the doctrine has grown with my years, that the right of property is not one of the least consideration in a free constitution. It is of a nature so sacredly inviolable that, when clearly ascertained, I would never encroach upon it by any means but through the regular constituted authority. It would have been under this impression that, had I been a member of the Legislature when the law of 1807 was introduced into the statute book, I should have been opposed to it. But receiving all the sanctions of a law, and as such containing a rule of conduct in certain specified cases, what was the Executive to do? Was he to set at defiance the law of the land? A doctrine like this can never be contended for. It seems, however, that to satisfy gentlemen the President should have refused to carry this law into execution, which I acknowledge does usurp judicial authority.--[Mr. RANDOLPH said that his ground was that the President had not executed the law. If a law were ever so unconstitutional, the President having signed it, it would become his duty to carry it into effect. But he denied that he had carried it into effect.] Upon that point, continued Mr. G., my colleague and I are at issue. I rise not to discuss the merits of the claim, which I have no disposition to do. I rise to defend the late President of the United States, to endeavor, to the extent of my feeble powers, to place this question in a proper point of view. If the President of the United States has gone beyond the letter of the law, which itself tends to encroach on the rights of the citizen, I would be the last person to justify him in thus trespassing on the dearest rights of a freeman. But it is very easy to show that he has not exceeded the express provisions of the law in question. The act of 1807 contains two clauses having a bearing on the subject; the first ascertaining the character of the persons to be ousted, and the second providing the means of ousting them. The President is authorized to exercise this power, either where property was previously in possession, in which case he is to give notice, or where it was subsequently entered on, in which case he is not required to give notice. It is easy to show that this is one of the cases contemplated by that act. It is well known that the feudal law did exist in Louisiana, previous to its acquisition by the United States, and that by that law alluvion does accrue to the Crown. Now, if the feudal law did exist, and by that law alluvion did accrue to the Crown of France, does it not follow that the same right did accrue to the United States by the deed of cession from France, who owned the territory? If the claimant was in possession when this act passed, it became the duty of the President of the United States to give him three months' notice previous to his removal; if not, no such notice was necessary. On this point I need only refer to the fact that it was not so early as the passage of the act, indeed not till the 23d of May, that the claimants came into possession. They were quieted in possession, so far as the rights of the United States were not concerned, on the 23d of May, 1807. The decision of the corporation court of New Orleans is relied on as giving a title to the petitioner. That that decision did at all affect, in the remotest possible degree, the right of the United States, is a position which no man acquainted with the principles of law will contend for. The decision cannot affect the right of the United States, because it was not contested or defended before that court. It is said that the feudal law does not exist in France. From time immemorial it has existed all over Europe. That it exists at this time in this country there can be no doubt. The right to lands is allodial, but is inherent in the Government. Is it denied that the Government can take property from an individual, making him compensation therefor? If the right to land be indefeasible, could the Government run a road through it? It certainly could not. I wish it to be distinctly understood that I do not attempt to say where the real right to the property in question does reside. But I do say, that, according to the treaty of cession, it did become the Government of the United States to exercise the power which the President under the law of 1807 did make use of. If there has been any violation of right, it was in the passage of the law under which the President acted. It was such a one as, under present persuasion, I could not have voted for, even to remove a Yazoo purchaser. I would even give to such a one his right to a fair trial. I would not have agreed to pass it, for a reason given a day or two ago, that the right to trial by jury is inalienable; it is a right which descends to us with our other birth-rights; it is one without which liberty is but a name. It was an unfortunate circumstance that such a law did pass. But if the Legislature thought proper to enact such a law, let them not, in the name of the great God, throw the blame on their instrument, on the President, who was innocent of fault, and bound to carry the statute into effect. There is undoubted proof that the President only acted in pursuance of the statute. The retroactive part of the statute is the most horrible feature in it. But it is said that this is an extreme case, that this small spot was selected as the object of Executive vengeance. I am informed that in almost every instance of intrusion on the public lands, settlement was made by individual claimants. I would rather give up fifty times the value of land of the United States than to encroach against law on that of any individual. It was not the execution of the law which encroached on the rights of the citizen, but the law itself. I would ask, how can it be contended to the contrary? Who was in possession of the land when the law passed? It had been used as public property, and had every requisite to that character; and as such, when any one took possession of it, the President would not have done his duty under the act of 1807, had he not caused them to be removed. MONDAY, June 26. _Non-Intercourse._ On motion of Mr. SMILIE, the House resumed the consideration of the report of the Committee of the Whole, on the bill from the Senate, to revive and amend certain parts of the act interdicting commercial intercourse. Mr. DANA said the amendment moved to the amendment of the gentleman from Virginia (Mr. SHEFFEY) went to give a construction to the bill which would operate as a complete exclusion of the vessels of both powers until a satisfactory adjustment of all existing differences shall have taken place. What, said Mr. D., is the situation in which we are now placed? On what principle is it that British ships were first excluded and on which their exclusion was confirmed by the non-intercourse law? They were originally excluded by the proclamation of the President of the United States in consequence of the attack on the Chesapeake. The President of the United States now in office has declared his acceptance of the proffered terms of satisfaction for that outrage. And, after that, is it proposed that we shall continue the measure of hostility when the cause alone which led to it is completely done away? I should suppose that in the very act of adjustment, which took place between the British Minister and the American Secretary, it is implied that we should do nothing further on this subject. The President of the United States has accepted the satisfaction offered; he has declared those terms, when performed, to be satisfactory. And are gentlemen considering the restoration of the seamen taken from the Chesapeake as a reason why we should continue the interdict? If we examine this subject fairly, the great principle of reparation was disavowed of the claim to search our armed vessels, and a homage to our rights. That matter must be deemed to be settled, if the President of the United States had authority to settle it. If the President had not power to settle it, this furnishes strong evidence that the vote of approbation of his conduct was a proper proposition. As to the interdiction by the non-intercourse act, I apprehend that was founded on the violation of our neutral rights by the belligerent powers, the President of the United States being authorized to renew trade whenever the edicts violating our lawful commerce should be revoked. Whether or not the President has done right in accepting the assurance instead of the fact, gentlemen have considered it unnecessary for them to express any opinion upon it. If there be no edict affecting our lawful commerce in force by one belligerent, the interdict is at an end in point of fact in relation to that one. The question of the affair of the Chesapeake is settled, if the President had power to settle it; and as to the other cause of interdiction, the President has declared that the British orders will have been revoked on the 10th of June. Has the President acted correctly or not? If he has acted correctly in taking the assurance for the fact, the very principle of the non-intercourse is at an end as respects one of the belligerents, and there can be no ground for the exclusion of British armed vessels. Mr. TAYLOR said he thought the gentleman from Connecticut used the word hostility in relation to this measure of including British armed vessels from the United States. Now, I believe, sir, said Mr. T., that if we go to the opinions entertained, not by the President of the United States, but entertained and expressed in the very foundation of the arrangement which was made, it will be found that the very hostility intended to be produced by the President's proclamation ceased at the moment when we passed the non-intercourse act in which we excluded the vessels of both the belligerents. The hostility was in the admission of the armed vessels of one, and excluding those of the other. It ceased by the non-intercourse law, and so satisfactory was this law of the last session, that it was the very foundation on which the overture was made which ended so much to the satisfaction of this nation. So that, in fact, when we perpetuate the order of things produced by that act, we do not perpetuate the state of things produced by the interdictory proclamation of the late President. It was matter of satisfaction to the British Government, as expressed by their Minister here, that the quality of hostility in the exclusion of her vessels was taken away by the non-intercourse law. Have we promised, in the negotiation which has taken place, that we will commit an act of hostility against France for the boon which we have received from the hand of Great Britain? No, sir; and yet, if we take the definition of Mr. Canning, as to excluding the vessels of one belligerent and receiving those of the other, according to the mode proposed by the amendment, without the sentence moved to be admitted to it, it will in fact be agreeing to go to war with France. According to the opinion of Britain, promulgated not only to this Government but to the world according to the demonstration made by the British Government, you will undertake a measure of active hostility against France; for what? For any great boon that this Government has received from the hands of Great Britain? No, sir. If all the promises were fulfilled to their full extent, we should then receive but justice at her hands. It was acknowledged, too, in the discussion which took place, that any nation, particularly a neutral nation, has a right to exclude the armed vessels of both belligerents; but that, on the contrary, the state now proposed to be produced, the exclusion of one and admission of the other, is an act of hostility of the party excluded. As I would not be compelled by the utmost ill usage by either belligerent to take part with the other against that one, neither will I take a consent or refusal from one or the other to do us justice as a motive for alliance, or a war which shall compromit our neutrality. I now speak of both, for both have used us as ill as was in their power. As kicks and cuffs have not compelled us to take part with them, neither shall caresses or fawning, for we will mete out an equal measure of justice to both. I consider the state of things produced by the non-intercourse as totally distinct from that produced by the proclamation of our late illustrious President. Mr. FISK.--It was my intention not to have troubled the House with any remarks on the bill now under consideration. I could readily have reconciled it to my feelings to have given a silent vote in favor of the bill, had not so many and various objections been made against it. But as it seems to be objectionable, and susceptible of so many amendments, in the opinion of so many gentlemen, the House will indulge me, while I offer the reasons which will govern my vote. This bill for which we were convened, has, during the time we have been here, received as yet but a small portion of our attention; and it is so important that upon its passage, and the principles it shall embrace, may depend the destinies of our country. It deserves our immediate and most serious attention. I hope it may be coolly and dispassionately examined, and treated according to its real importance. Its principles have been carefully and scrupulously investigated by the committee who reported it, or a bill similar in its provisions, of which committee I had the honor to be a member. The language is plain; public ships are not interdicted. There is but one question to be decided in disposing of this bill, and that is respecting public ships; for I believe all will agree to renew the non-intercourse act as respects France. The question is, what regulation shall we make respecting public ships, and one of three courses is to be pursued? Shall we exclude both, admit both, or discriminate? There are many who would be willing to exclude the armed ships of every foreign power from our harbors and waters. And considering what we have suffered by admitting them, it may be well questioned whether it would not be the best policy of this nation to interdict them by a permanent law. Yet many gentlemen object to this, as being inexpedient at this period. It is said, and it is the principal argument urged against it, that it might embarrass our impending negotiations with Great Britain to interdict her public ships by this act. As I feel as much disposed for an amicable adjustment of our differences with that nation as any member of this House, and would be as unwilling to embarrass the negotiation, I would not insist on this interdiction. It is also said that England has made reparation, or agreed to make reparation, for the aggression which caused the interdiction of her public ships, and that as the cause no longer exists the interdiction should cease. _Be it so_; and may we never have fresh cause to renew it! But, say gentlemen, we must not now recede from the ground we have taken with respect to France, we must discriminate. Let us for a moment view the ground we have taken--not only as relates to France, but England also. We are not at war with either of the belligerents. Our Ministers at their respective Courts are endeavoring to negotiate, and by negotiation to obtain redress for the injuries of which we complain, and whatever precautionary measures we might adopt would not be deemed a violation of our neutral character, so long as those measures were equally applicable to both the belligerents. We could not be deemed to have taken part with either to the prejudice of the other, while no other was benefited by our measures. While British public ships were interdicted, and our embargo existed, an offer was made to both the belligerents to resume our trade--the same equal terms were tendered to both. The nation refusing is left without a cause of complaint against us, for resuming our trade with the nation accepting the offer. Before either nation does accept, America changes her position. The embargo is abandoned, and a general interdiction of the public ships of England and France, and a non-intercourse with these nations and their dependencies, is substituted. By this non-intercourse act, the particular interdiction is merged in a general regulation. This was to exist until the end of the next session of Congress only. This was virtually saying, that the proclamation interdicting British public vessels from our waters for a particular aggression shall be revoked; and a general municipal regulation, over which the President shall have no control, shall be substituted in its stead. It was then, in order to preserve our neutral character, necessary that this rule should embrace both the belligerents. It may be said, and has indeed been frequently said, that the reason of extending this restriction to France, was her having burnt our vessels and imprisoned our seamen. But never, at least in the history of diplomacy, have cause and effect been more distant and unconnected. France, on the high seas, burns our vessels, and in her own territories imprisons our seamen. We, at the distance of three thousand miles, interdict our ports and waters to her public ships, which do not or dare not come within five hundred leagues of the line of our interdicted territory, and this is to retaliate for the aggression. Can this interdiction be defended on this ground? It cannot. There must have existed some other reason. It was to preserve our relations with the belligerents in that state that should be consistent with our professions of neutrality. Had the interdiction been confined to British vessels by this law, what would Great Britain have said to this discrimination? In vain might we have told her that we meant to preserve our neutral character, and not to take a part with her enemies in the war against her. Our acts would have been directly opposed to our professions. With this discriminating, permanent, municipal law, could we expect Great Britain to treat with us as a neutral? If we did, we should be disappointed. If, then, it be inexpedient to make this discrimination against Great Britain, how is it less so, when directed against France? We are to admit British and exclude the French. And, are we to endeavor to negotiate, as neutrals, with France, upon this ground, with any reasonable prospect of success? It is desirable that the commercial intercourse between this country and France should be restored. Peace and free trade is the interest and the object of America. While we throw wide open the door of negotiation to England, why should we shut it against France? While we facilitate negotiations with the British, why should we embarrass and prevent the same with the French? I wish to leave the Executive and treaty-making powers of our Government free and unshackled, to enter on negotiation with both these Governments, under every advantage of success which we can give. On what ground can this discrimination be defended? You adopt this measure. Our Minister at Paris is requested to explain it. Is there any advocate for this discrimination in this House, who can conceive the grounds upon which our Minister or our Government are to justify this measure with our relations of neutrality? It cannot be defended. I am not for yielding to either nation, but, let our conduct be consistent, impartial, and defensible. If then, we are to be involved in a war with either, the resources of the country and the hearts of our citizens will support the Government, and we need not be afraid of the world. But those men, or that Administration that will, upon a mere useless, punctilious point of etiquette, commit the peace and happiness of this country to the ravages of war, will meet the indignation, and feel the vengeance of the intelligent citizens of the country. This temerity would meet its merited punishment. The people of America can see, and will judge for themselves; they can readily discern the difference between shadow and substance; they are neither to be deceived or trifled with, especially on subjects of such immense moment to their liberties and happiness. Mr. BURWELL said he deemed it in some degree his duty to make some remarks on the bill before the House. He intended to vote against both the amendments proposed to the bill. I think (said Mr. B.) that if my colleague who moved the first amendment, (Mr. SHEFFEY,) had taken that view of this subject which might have been presented to his mind, he would not have found such error in the course proposed to be pursued. He seems to have taken another ground, when by the clearest demonstration it might have been shown that the system proposed is one of impartiality to the belligerent powers of Europe. It will be recollected by gentlemen of this House, that at the time the exclusion of French armed ships took place, it was upon the express ground that the British Government objected to come to an accommodation with us, because we excluded her vessels and nominally admitted those of her enemy. On that ground I venture to say that the exclusion took place; because, at the time that it took place, it was considered a measure absolutely favoring Great Britain, yet not injuring France by a nominal prohibition of the entrance of her vessels. It was stated that there was not perhaps in the course of a year a single French public armed vessel in the harbors of the United States. Have we any French frigates now in our seas? None. Is there any probability that there will be any? No, sir; for France having now lost her West India Islands, if her vessels are freely admitted, it is probable that there would not, in the course of five years, be a single French vessel within our waters. As the exclusion would be perfectly nominal, I would not adopt any thing to prevent a settlement of our differences with France. I am not now sanguine in my belief that we shall settle our differences with her; for every one acquainted with that Government knows, I fear, that it is not to be diverted from its object by any arrangement we may make. But I would do away every possible justification that could be urged by France for not meeting our overtures for peace. This conduct would produce at home more union among our citizens; and, when our rights are attacked without a pretence for their infraction, there can be but one sentiment in the nation. I have always determined to admit British vessels as far as my vote would go; and should the House determine to exclude French vessels I should still vote for the admission of English vessels, because their former exclusion has been so artfully managed by the British Government, and the doctrine has been so admitted by the presses in this country, as to give rise to the most unjustifiable conduct ever pursued by one nation towards another. As to the idea advanced by the gentleman from South Carolina, (Mr. TAYLOR,) that, if we do admit them to take possession of our waters, they will take advantage of the privilege to our injury in negotiation, it has no force with me, for this plain reason; that, although the exclusion of them from our waters was not carried into execution by physical force, yet they did not enter our waters, which they might have done, in defiance of the proclamation. And why did they not? Because, I presume, they had no desire to rouse the indignation of this nation by an open violation of the laws of the land. If, sir, you wish to gain the advantage of union at home, take away every pretext for the violation of your rights. Let me ask if it be not better to admit them? By so doing you give up a principle which does not benefit you, and receive an accession of physical strength by union at home. I do not say that every one will be satisfied, because I have no doubt England has agents in the country, but so few in number as to be unworthy of notice. If Great Britain, on the other hand, attacks us when we have taken away every possible ground of collision and violates her promise, the people in every part of the country will be satisfied that her deliberate object is to destroy our commerce. We should have no more of those party divisions which have distracted us for some months past. It cannot be said that we are bound by any part of the negotiation to admit English vessels. I have seen nothing of the kind, if it exist; and I call upon gentlemen to point it out. Why do it, then? It may be considered a concession; and certainly manifests that disposition which we feel to settle all the points of difference in agitation betwixt us. And here I beg leave to say that, according to the most explicit declarations of the British Minister, you would not give the smallest umbrage by pursuing that course. On this subject Mr. B. quoted a speech of Mr. Stevens in the British Parliament. If we were to be governed by reference to expressions which existed in that country of our partiality to France, it did appear to him that this speech was entitled to weight, because it justified the course proposed by the bill, and stated a position which the British Government admitted was all that could be required from a neutral State. From this speech it appeared that placing the two belligerents on an equal footing was all that was required. Did not this bill completely come up to their wishes? Did it not interdict all trade with France under the most severe and heavy penalties? Mr. B. said he did not wish it to be understood that he would shape his conduct by the wishes of the British Ministry; but, as it had been said that the bill was somewhat hostile to that country, he had quoted the speech of a ministerial member to show that no such inference could be drawn. The same person, in his speech, also states, said Mr. B., that the reason why our offer in August last was not accepted, was, that, if it had been accepted, such was the situation of the law, that a commerce might always be carried on with the enemy; that, through the ports in Europe, her enemy might be as efficiently supplied as if the embargo did not exist in relation to him. But, sir, what is now the state of things? If it is possible to operate on France by commercial restrictions, let me ask if this bill will not accomplish that object? Let me ask if an American vessel under it can go to any port of France? It not only cuts off direct intercourse, but prohibits the importation of the products of France; and any attempt to carry on a circuitous commerce must be ineffectual, inasmuch as the produce will be liable to seizure when it comes into the ports of the United States. If, according to the ideas of the British Government itself, this state of things be a sufficient resistance to France, let me ask of gentlemen how they can infer a partiality to France? What more can you do? If you exclude the armed vessels of France, though it may display a disposition to injure her, I defy any gentleman to show that it can, in the smallest degree, coerce or affect her. Let me call the attention of gentlemen to the present situation of Europe. If accounts lately received are to be credited, we may calculate on the universal control of the French Emperor over the ports of Europe. Is it to our advantage to be excluded from the trade of the continent? Is it not known that all the surplus product of the agriculture of this country finds its vent on the Continent of Europe? Is it not known that, of the whole of our tobacco, seven out of eight parts are consumed on the continent? That of our cotton, at least one-half finds its market there? Does not flour find a great proportion of its consumption on the continent? This cannot be denied. Then, let me ask of gentlemen, whether it be so much to our advantage to exclude this trade; and, if not, why we should take a step which can do France no injury, but which may, and probably would, be made a pretext for cutting off so valuable a part of our trade? With respect to partiality to France, let me call upon the gentleman from Virginia, or any other, to show if, from the conduct of the United States, and such thing can be inferred. Look at our relative situation. Have we opened our ports to her traders? Have we renewed commercial intercourse with her? Let me ask, which have we placed in the best situation, France or England? Every gentleman must answer--England. Whilst she gets all our commerce, her enemy is wholly excluded from any participation in it. Another argument has been used against discrimination, viz: that France has no public armed ships. If this is the case, gentlemen need not be alarmed; for, if they cannot come here, we need not be afraid of their resentment, because we will not admit them. But we know that her cruisers can steal out of their ports, go into foreign seas, and destroy our trade in spite of the ships of Great Britain. If an American vessel has British property on board, or has been spoken by a British cruiser, a French public armed vessel is bound to make prize of her. This being the case, let us for a moment consider the subject as respects ourselves. Our feelings ought to be for ourselves and our country. Here is a nation having public ships, having a right to come into your ports. Does it comport with our honor and dignity to admit into our ports and harbors the very vessels destroying our commerce? Not to go into an inquiry what has been the fact heretofore, but what may be now--if you pass a law that a French frigate may come into your waters and partake of your hospitalities, where is the obligation that it may not take advantage of the opportunity to make its prey more sure by watching it in port and then going out and entrapping it? If, from the intoxication of the man who rules the destinies of the nations of Europe, he does not feel disposed to treat with us on terms of reciprocity, that circumstance should have no effect on our measures. But the question on that point is no doubt already settled; time sufficient has been allowed for the vessel to go and receive an answer to the instruction sent to our Minister. I certainly would so far respect myself as to fulfil what I conceive to be good faith toward both, without respect to the wish or dictation of either. As to the amount of produce sent to the continent, it cannot be great. Some few may have adventured there on desperate voyages; but that there is much property in jeopardy, I cannot believe, for France is known to be, in respect to mercantile property, the lion's den, easy of access, but impossible to return. Those, therefore, who have risked their property must have been extremely rash. If the French Government would do us justice, I should be glad; if not, we must abide by the consequences. We must not do improper things because they will not do us justice. It is proper that we should assert what we conceive to be our rights. I believe, however, that the question of peace with France will not turn on this bill. I believe the point to be already settled. If it be not, and the exclusion of French armed vessels would be an impediment to it, the same objection would be valid against the whole bill. Mr. HOLLAND asked the indulgence of the House whilst he stated a few reasons why he should vote for the amendment under consideration. It had been asked whether it was consistent with the honor of this nation to admit French ships within our waters. Mr. H. said he would answer, that, as things now stood, he did not consider it consistent with our honor and dignity so to do; and the reason why was, that that Government had done sundry injurious acts towards this nation for which it had not made reparation, nor even intimated an intention of doing so. He therefore answered that it was inconsistent to admit the vessels of France within our waters. It was in consequence of injuries which they had done, according to my conception, that I voted for their exclusion. I was not influenced to vote for the prohibition of the ships of France from coming into our waters by any desire to produce an equality in our relations with the belligerents. It was no impression of that kind that influenced my vote; and yet I voted that French ships of war should not come into our waters. It was not the opinions of editors of newspapers, or the clamors of individuals, that influenced my vote, and I hope they never will. I think that every gentleman, on taking his seat in this House, should consider himself beyond suspicion. The only question for consideration of the members of this House, when a measure is presented to them, is the expediency of it; and on that ground alone I voted for the exclusion of French ships or of British ships. I was chiefly influenced to vote for the exclusion of British armed ships by the variety of acts committed in our waters, and the great disposition which she had shown to commit the most wanton acts of treachery. I can say for myself that my conduct was only partially influenced by the acts of British officers within our waters; I had in view a variety of other acts committed against the rights of the people of this country. Supposing the affair of the Chesapeake to have been authorized, I never wish to see the British ships of war within our waters, till they recede from the right of impressment. I wish the British Government to know that it was the determination of the major part of the citizens of the United States to resist her till she surrendered that right. I think it was a sacrifice of the dignity of the United States to receive British vessels so long as they committed those acts. It was therefore that I voted to exclude them. It is said, by the gentleman last up, that we are at peace with Great Britain. Does it follow, from that, that they are entitled to all the rights of hospitality that one nation could possibly show to another? Certainly not. We ought yet to hold up some indication that we are not perfectly reconciled to them. When they abandon the outrageous principles which govern that nation with respect to neutrals; when they abandon the practice of impressment; when they make restitution for spoliations of our trade; we will hold the hand of fellowship to them. It is not enough for me to hear the British Minister say that an Envoy Extraordinary is to come out and settle all differences. I have heard something like this long ago. I heard that a Minister was to be sent out to make reparation for the affair of the Chesapeake. We have experience on this subject. Have we forgot that every thing which accompanied that mission was evidence that the British Government was not sincere, and that it did not intend to accommodate? When I see an abandonment by Great Britain of the principles destructive to neutrality, I can consent to admit that nation to the rights of hospitality. Mr. JOHNSON observed, that, to say any thing on this subject, after the time which had been already consumed, and the speeches which had been made, was contrary to a rule which he had laid down for his own conduct. But his excuse would be found in the introduction into the House of a proposition, which, it was said, proposed to place us on a neutral ground. Nothing, said Mr. J., is dearer to me than neutrality as to our foreign relations; but, the bill submitted to the House by the committee of which I had the honor to constitute one, and which is the same with that now before us, so far from being in hostility to Great Britain, and partiality to France, I contend, is a concession to Great Britain, at the same time that I admit that it is not hostility to France. The admission of the belligerent vessels into our waters, so far from being hostility to Great Britain, is concession. I bottom the remark upon the fact, that, at this moment, as many and as heavy causes of complaint exist unsettled between this Government and Great Britain, as between this Government and that of France. If then, the same causes exist to exclude from our waters the vessels of both, I ask whether the admission of both will not be an actual benefit and concession to Great Britain, and a nominal benefit to France? And, still, it is to go forth to the nation that we are about to commit an act which will sink the nation, from the elevated situation in which it is now placed by our former measures! I hope that we shall continue to convince the world that the United States of America are incapable of other than neutral conduct. Is it a fact, that greater injuries exist from France than from Great Britain? What injuries have been received from France? Have they been committed within our waters? Has our hospitality been violated and our officers insulted in our very ports by the vessels of France? or is her hostility merely commercial? It is of the latter description. Is it not admitted that we may lawfully exclude or admit the vessels of both belligerents? If you admit the vessels of one nation with whom you have cause of difference, and exclude those of another nation with whom you have only the same cause of difference, I ask whether you do not commit the dignity of the nation, and jeopardize its peace? I will put this question to gentlemen: what has Britain done which would require a discrimination as to her public vessels? She has rescinded her Orders in Council. And what have we done in return? Have we done nothing? Has Great Britain held out the hand of friendship, and have we refused to meet her? Has she withdrawn her Orders in Council, and have we insisted on a continuance of our commercial restrictions? I have understood that she has done nothing but rescinded her Orders in Council, and we have renewed intercourse with her therefore. I am more astonished at the proposal to discriminate, when we see that, at this moment, orders are in existence blockading countries to which your merchants have, long ago, taken out clearances, in violation of stipulations which Britain had proposed to us. When she has violated our rights, I am more astonished that gentlemen should wish to go beyond this letter of the law. And, let the consequence be what it may, it would result to the benefit of this nation that we should not be influenced by idle fears of imaginary dangers. My better judgment tells me we should exclude the armed vessels of both nations; but the general sentiment appears to be against it. It is asked of us, why admit the vessels of France, whilst injuries which she has done us are unatoned for? And, I ask, sir, why, then, admit the vessels of England standing in the same relation to us? I only make these remarks as going to show that we ought to be strictly neutral. If, sir, you wish to take part in the broils of Europe, embody your men, and send them over to the disposal of England at once, and let her send them to Spain or Austria. But, if you would remain neutral, either admit or exclude the armed vessels, as you would armies, of both belligerents. I had thought, sir, not only from the acts of our Government, but from conversing with gentlemen, that we hailed the present as an auspicious moment, as a political jubilee; I had thought that we had been on the verge of war with the two most powerful nations of the earth, but that our situation was changed, and that, at the same moment we now offer the only asylum to the victims of European wars. And are you now about again to jeopardize the peace of this nation, without any cause whatever? The exclusion of French and British armed vessels at the last session, may be taken on this ground. It was a defensive war, not only for the injuries we had received, but in expectation of actual hostility. Has it occurred? No, sir. Would you have excluded British vessels since 1793, for taking the vessels engaged in your lawful trade, and for impressing your seamen? You did not do it; and it was not for that alone that you did it at the last session, but for other causes, which have nearly or quite disappeared. I have done, sir. I shall not vote for any proposition which makes a difference between France and Great Britain; not that I am afraid of the conscripts of Napoleon, or the navy of George III. But I cannot consent to adopt a course which will again obscure with clouds our political horizon. Mr. SMILIE said, that if he now took up five minutes of the time of the House, he could not excuse it to himself; and he should not have risen, but to explain the reasons for the course which he should take. As to the amendment, to that he could never agree. The question which the Legislature often had to decide, was not what was best, but what is practicable. Now, he thought it a happy circumstance that parties in the other House had united on this subject. However we may differ as to local affairs, said he, I think it good policy, if it can be done without a sacrifice of principle, to meet in concert on measures of external relations. What may be the effect, if you introduce either of these two principles into this bill? We know that, if this bill does not go to the Senate till to-morrow, if amended, a single member of the Senate can, according to their rules, prevent the bill from passing altogether. My opinion is, that it is our duty to pass the bill in its present form. If any material alteration be made in the bill, I believe it will not pass. If it does not, all that has taken place between this country and Great Britain is at an end. And I hope that this reason will induce gentlemen to permit the question to be taken. Mr. J. G. JACKSON said he had intended, before the day had so far progressed, to have explained to the House the motives by which he was actuated in relation to the bill. He said he would still take the liberty of stating to the few members present, (the House being very thin,) why he offered the amendment to the amendment. It will be recollected, said Mr. J., that the other day I stated that a construction had been given to the law contemplated to be re-enacted by the bill on the table, which, notwithstanding the renewal of intercourse, excluded armed vessels from our waters; and, for the purpose of doing away completely that construction, I moved an amendment which, gentlemen conceiving it unnecessary, I withdrew. If gentlemen are correct in the opinion which they advanced, and which induced me to withdraw that motion, they cannot, consistently, vote for the amendment of my colleague providing an exception to a provision which the bill does not contain. Where is the necessity of a proviso if the law does not bear such a construction? Is the Executive to infer from the proviso that something exists in the law which the friends of the proviso declare does not exist? The amendment proposed by my colleague provides for the admission of the armed vessels of those nations with whom commercial intercourse _shall_ have been (not _has_ been) permitted. Are you, by this phraseology, about to devolve upon the President a discretionary power, holding the scale of national honor in one hand, and the injury and atonement in the other, to decide which nation shall be thus favored, when it is conceded on all hands that the admission of the armed vessels of one nation and the exclusion of those of the other, is an act _ipso facto_ of hostility? Gentlemen have observed that there ought to be an exclusion of French and admission of English armed ships, and that any other course would be an acquiescence in the views of "_sister_ France," and hostility to England. This language, sir, does not help the cause which the gentleman advocates. What must be the effect of such insinuations? They must excite feelings which, I am happy to say, have not been displayed on this floor during the session. Might it not be retorted, as a natural consequence, that gentlemen who wish to admit British and exclude French ships, and thus serve the interest of England, are desirous of subserving the views of _mother_ Britain? The attachment to _sister_ France on the one hand, is about as great as the attachment to _mother_ Britain on the other. I believe it has been emphatically declared to the nation that we would not go to war for existing differences. If, however, gentlemen, since the last session, have so materially altered their ideas of the policy proper in relation to one belligerent, let us go to war openly; I am not for using the stiletto, or for stabbing in the dark. The interdict of British armed vessels from entering our ports was not on account of the affair of the Chesapeake only. It is unnecessary now to repeat the cause which led to it. If gentlemen will turn to the letter of Mr. Madison to Mr. Rose, they will find the causes detailed. Since that time other injuries have been committed; and it has been justly observed that the burning the Impetueux was an insult to the sovereignty of this nation scarcely less than the affair of the Chesapeake. If we permit hostility from one belligerent to another within our territory, we become party to the war, as we do, by admitting the enemy even to pass through our territory to attack another nation. It is in vain to say that a nation preserves a neutral attitude, when it permits one of the belligerents repeatedly to violate its sovereignty. If there be as much injury unatoned on the part of Britain as on the part of France, then a discrimination will be a departure from the ground which we took last session, that both should be excluded. And the President had no power over that part of the law. Inasmuch as we know that Great Britain has the command of the ocean, and that a French ship of war cannot, without a miracle, escape across the Atlantic, we, in fact, by the operation of the bill as it came from the Senate, admit English and exclude French ships. We throw open our ports and admit the thousand ships of Britain, without opening our eyes to the consequences which have heretofore resulted from so doing. And shall we now refuse admission to the vessels of France? It is indeed difficult to say what led to their exclusion; for it has been with truth observed that the non-intercourse bill had not an advocate in the House. It was something like throwing all our discordant opinions into one crucible, and after fusion, extracting what was expected to be gold, but which all called dross. When gentlemen speak of their zeal to maintain the ground taken last winter, I beg of them to recollect their own speeches, from which it will be found that the bill was so obnoxious to them that they would not even extend its operation to the next winter, and that it was with difficulty that it was extended to the end of the present session. Gentlemen ask, has there not been a satisfactory adjustment of our differences with Great Britain? I deny it. What is the expression of the British Envoy on which gentlemen rely, and on which they are about to sit down quietly under the vine and fig tree? "In the mean time, with a view to contribute to the attainment of so desirable an object, His Majesty would be willing to withdraw his orders," &c. In the mean time, still persisting in the principle of taxing our exports, a right denied even to us by the constitution. It is to be hung up _in terrorem_, to be let loose upon us hereafter, if we shall not do every thing which is required of us. There is a marked cautious style of language in this letter, which shows that Great Britain in fact has promised nothing. She does not say that she will repeal or revoke her orders, but that in the mean time she will withdraw them; and, sir, in the mean time she has withdrawn them, and substituted other orders or proclamations equally obnoxious. This is reason sufficient for not going beyond the letter of the agreement; which however I will consent to do, by admitting instead of excluding British armed vessels. When Mr. J. G. JACKSON concluded, Mr. SHEFFEY, in order to obtain a direct question on his own amendment, adopted Mr. JACKSON'S rider to it, as a part of his own motion, and called for a division of the question, taking it first on his own amendment as first moved. Some doubt arising whether it was correct thus to act, according to the rules of the House, Mr. MACON produced a precedent in which he had himself done the same in the case of a motion for the repeal of the second section of the sedition act, nine or ten years ago. Mr. TAYLOR said that, as the House had decided that they would not discriminate between the admission of British and French public vessels, he wished to try the question on the exclusion of both. He made a motion having in view that object; which was decided without debate, fifteen for it, one hundred against it, being a majority of eighty-five against the exclusion, at this time, of the public vessels of both belligerents. Mr. MONTGOMERY observed that the decision of the courts of the United States had been that, after a law had expired, they had dismissed all suits pending for the recovery of penalties incurred under the act. He conceived that this bill should have a saving clause, that penalties and forfeitures incurred under it, should be recoverable and distributable after the act itself had expired. He therefore moved an amendment to that effect. TUESDAY, June 27. _Non-Intercourse._ The bill to revive and amend certain parts of the act "interdicting commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes," was read the third time. Mr. PICKMAN hoped that he should be excused for making a few observations at this stage of the bill, not having before partaken of the debate. He said he felt a strong objection to the bill, because it admitted French vessels into our ports and harbors. Gentlemen had asked why a discrimination should be made. He answered, that the reasons for this conduct were to his mind very plain. He had considered the outrage on the Chesapeake as a gross violation of our rights and of the law of nations, and he believed no one had felt more indignation at it than he did. But that was now atoned for. I consider (said Mr. P.) that the Orders in Council are repealed; that Great Britain has stipulated to send on an envoy with instructions to negotiate for a settlement of all differences. I consider these things as done, because I consider the faith of the British nation as solemnly pledged to do them; for, if it had not been, the United States would not have been justified in taking the attitude which we have taken. It has been said, that since the arrangement here has taken place, Great Britain has modified her Orders in Council in a most exceptionable manner. I admit that this modification was posterior in point of date to the arrangement here; that is to say, that the proclamation of the President of the United States was issued on the 19th, and that the orders were modified on the 29th of April; yet, in strict propriety, the new orders may be said to have issued before the arrangement, because it was before it was known. Viewing the subject in this light, I do not believe that the modification of the Orders in Council did proceed from the arrangement here; and I now declare that if such modification as has been made is to be considered as rescinding the orders, according to the stipulation made with Mr. Erskine, I should consider it a mere mockery. I do, however, consider it in a very different light, and have no doubt that the Government of Great Britain will adopt such modification of their orders as they have stipulated to do. These are my ideas, and on this ground I did and do still believe that we ought to have made a discrimination, because I consider one nation to have complied with the conditions of the non-intercourse act, whilst the other has not varied its position. Mr. MACON said he was against admitting the armed vessels of either belligerents into our waters. He would place our foreign relations precisely in the state in which the President had left them, saying neither yea or nay on the subject of their armed vessels, leaving it where it had been left by both the parties to the late arrangement. He should have been glad that the same disposition had been manifested towards us by France as by Great Britain; but because there had not he would do nothing towards her to prevent it. Some gentlemen had conceived that an indiscriminate admission would be more advantageous to France than to Great Britain. Mr. M. said he did not agree with gentlemen in this; for Great Britain had Canada and her West India Islands, to which she was in the habit of sending out vessels; whilst France, having no possessions on the American coast, had no occasion for our hospitality. Mr. M. said he sincerely hoped that we should now act, as we had heretofore done, so as to give to neither of the belligerents cause to charge us with partiality. He was decidedly of opinion that we ought to leave both nations in the same state as they were left by the President's proclamation. He had no doubt that Great Britain would send a Minister to negotiate. But what was left, as to her, for the surrender or repeal of which she had any anxiety? Nothing. As to France, she would have no shipping at sea, so long as the war lasted in Europe, unless an event took place which he hoped would not. You give France a right to enter your waters, said he, and take away any inducement she might have had to rescind her decrees. I believe the passage of the bill will extend the difficulties of the nation. I know it is not a very pleasant thing to be opposed to the evident sentiment of a majority of the House; but it is the bounden duty of those who think as I do to vote, as I shall, against the bill. Mr. TAYLOR said it appeared to be desired on all hands that nothing should be done by the House to embarrass the negotiation; and he presumed that the majority, in the different stages of this bill, had been actuated by that wish. If, said Mr. T., I could see the present measure in the light in which its friends appear to view it, I certainly should be in favor of it. But, when it is recollected that your legislative acts have been held out to your fellow-citizens and to foreign nations, promising a perseverance in our restrictive measures against such nation as shall continue to oppress our commerce by her unlawful edicts, I consider our faith as pledged to the nation, that, according to the recession of one belligerent, or perseverance of the other, we were to shape our course. The gentleman from Virginia aimed a side blow at those who, in the discussion of this subject, had spoken of the ground which we have taken. On the effects supposed to be produced by the non-intercourse, I had a right to say _we_. The sense of the House was taken distinctly as to a repeal of the embargo, on the first report of the Committee of Foreign Relations. It was then that the principle was decided, and it was that act which was taken hold of across the Atlantic, and made the ground of the instructions which came out by Mr. Oakley to the British Envoy here, and on which the arrangement did take place. Now, though the gentleman seems unwilling that any part of the House should say _we_, I vindicate the claim which I have to use it. In fact, I would claim for the mover of the original proposition to this House for the interdiction of armed vessels, the gentleman from North Carolina, (Mr. MACON,) the merit of the late negotiation, if it attach anywhere. But I am not willing to carry on the copartnership. I will not now say _we_. I, who voted for the motion going to give power to the President of the United States to issue letters of marque and reprisal against that nation which persevered in its edicts after the other had withdrawn them, am not willing, on the passage of this bill, to say _we_, as by it you admit instead of continuing the exclusion against armed vessels, where, instead of a recession, injuries have rather been added. When gentlemen are asked why they have admitted French vessels, in our present situation in relation to France, after the temper displayed and the votes given at the last session on the subject, theirs must be a feeling in which I would not participate, and therefore I will not say "_we_." Mr. DANA observed that, by the Journals of the Senate, it appeared that this bill had been unanimously passed by that body. This unanimous vote of the Senate might be regarded as a consideration to operate very strongly on the minds of members of the House, as respected the propriety of adopting the present bill; it certainly must have weight in favor of a measure, when it was found that men differing widely in political opinions joined in voting for it. I, said Mr. D., have myself very strongly felt the force of this consideration. But you know, sir, that the rules of proceeding and order established in this House do not admit of our urging in debate the conduct of the Senate of the United States as a motive for deciding the opinion of this House. Why is it out of order? Because the excellence of our constitution is, that the Legislature shall consist of two Houses, each of which shall act on its own ideas of propriety. If it is not proper to mention the conduct of the Senate in debate, it is not proper to suffer it to overthrow our opinions. In this view I feel myself bound, with all due deference to the Senate, to examine this subject for myself. I cannot but feel the weight of that vote; but I cannot forget that the bill respecting the writ of habeas corpus was once passed in that House, and rejected unanimously in this, without being permitted to be read a second time. On examining this bill, sir, I do not find that its various provisions appear to constitute one whole, to conform with any system of policy, or to be consistent with the principles of any man in this country. It is certainly not the course which I would have chosen; it is not consistent with the course marked out at the last session of Congress. I was certainly not in favor of the embargo; I disapproved of that system; and when I saw the non-intercourse system, I considered that as retaining the embargo principle, but not with so much precision. I consider this bill to be receding from a weak position. If the embargo was a decisive measure, it ought to have been taken more completely at the outset than it was. But it failed. The non-intercourse was abandoning one part and retaining another of the system. This bill was abandoning a part of the non-intercourse system and retaining a part. When I look at it, I see nothing in it at which any portion of American citizens can rejoice or be proud of; nothing of a firm, dignified, matured, sound, consistent policy, to be maintained on general principles against all the world. Am I then required to vote for a measure of this kind? If, with my friend from Massachusetts (Mr. QUINCY) I could suppose that voting for a system which I did not like would destroy it, I should vote for it. For, if I understand him, he dislikes the whole, and therefore will vote for this part of it. The whole would die at the end of this session; but to show his anxiety for its death he must keep it alive till the next session of Congress. I was very much pleased with a great part of his remarks; I approbated his premises, but his conclusions appeared to be directly the reverse of the proper result. But as he is a gentleman of strong powers of mind, he may well be able to draw a conclusion which I cannot. Gentlemen have alluded to the declarations of the Emperor of France in relation to his decrees. When Bonaparte talks of the freedom of the seas, does he mean the same idea which we attach to these words when we use them? When he talks of the principles of maritime law, does he mean the same as we? On the subject of maritime law, has he not stated things which before were unheard of? Certainly, sir. On the contrary, I have always understood the claims of the United States as a neutral nation to be, not to assert new pretensions, but to assert such claims as they may think reasonable with respect to principle, and such as have been formerly admitted in practice. With respect to the bill before you, there has been one argument used, and an imposing one certainly, provided that it appeared completely founded in fact. It is said this bill is considered as comporting with the views of the Executive Government of the country; and that the Executive has acted so well in conducting the preliminary arrangement for removing certain obstacles to negotiation, that on the whole we ought to assist his administration. On this subject, sir, I have to observe that we are utterly without official evidence on this point. We have no evidence whatever, of an official nature, that this bill comports with the Executive views. If we have, it is to me unknown. We have not, during the present session, had any report in detail from the Committee of Foreign Relations. If that committee had made a report, stating facts and reasoning as the basis of the bill, I might consider that committee as having consulted the Executive of the country, and as having adopted its disposition as the basis of its proceedings. But, as we have no such thing, are we to suppose that there are certain gentlemen in the House who are organs of communication of the Executive wishes? Have we any other evidence of the disposition of the Executive in relation to this bill than that certain gentlemen are in favor of it? If, on this subject, the opinion of the Executive should properly decide our judgment, ought we not to have had some official exposition of the views of the Government? As we have no such information, we are to examine whether this bill comports with the arrangement made with Great Britain. But, as to that, I beg leave to be deemed as not considering myself pledged by that arrangement merely. As to myself, as an American, I am by no means gratified that we should contend with one nation because another does us justice. A stipulation of that kind I should consider as degrading to my country. In my remarks therefore, I disclaim owing any thing for any boon which Great Britain may have given us, because I do not consider it as a boon that they have ceased to injure us. But in the face of the world such declarations have been formally made by the Congress of the United States. The fact is known to ourselves, to our countrymen, to such portions of the foreign world as may take an interest in our concerns. And in comparing this bill with those declarations, will it be possible to conceive that we are consistent? When you had differences with both the belligerents, what was your language? You talked as though you would throw the gauntlet to the globe, as though you would stretch out your arm and smite the world. When an adjustment is made with one of those powers, what is your language? Really, sir, the difficulty under which the Government formerly labored was said to be this: that if we went to war with both nations.--[Mr. D. quoted a part of the report of the Committee of Foreign Relations of last session on this subject.] I consider this part of the report, said he, as proceeding upon assumptions which are erroneous, and founded upon grounds untenable and inaccurate. But as to this report, which appeared to receive the approbation of a majority of the members of the House, it seems to be clear from it, that were it not that you were so equally wronged by both belligerents, and that both persisted, you certainly would have engaged in war with one; but that, as a treble war was rather a difficult plan, it was best to continue the restrictive system. What is the declaration made to the British Minister at this place, by our Secretary of State, on this subject? Is it pretended to enter into any stipulations with Great Britain as to our conduct? No, sir; it is that our measures are adopted on the principle that the Government would assert the rights of our country against any power on the globe, without any reference to pledges. On this point I would call the attention of the House to a sentence which is the most extraordinary surely that ever was put together. And, unless it be a dash of the pen, like that of the brush of the painter who painted at one dash a perfect horse, it must have been the elaborate labor of twenty-four hours; in either case not detracting from the skill of the author of it. The sentence is as follows: "As it appears at the same time, that, in making this offer, His Britannic Majesty derives a motive from the equality, now existing, in the relations of the United States, with the two belligerent powers, the President owes it to the occasion, and to himself, to let it be understood, that this equality is a result, incident to a state of things, growing out of distinct considerations." If any mortal, from the depth of his knowledge, can specifically tell what this means, he may pass for an oracle. It proceeds upon this idea: that in making our arrangements at the last session we did not mean, as respects saying that whatever nation insulted us we would resent it, to please Great Britain alone, but equally to please any other nation whatever. If the saying this was an annunciation by our Government to the British Government, that in making this arrangement we are not making any stipulation in respect to France, but you and the world may know that whoever invades our rights shall meet with resistance, adequate to the crisis, if the Government can find means to accomplish it. If the paragraph be thus considered, we may respect the declaration itself, and admire the skill with which it is so worded as to convey nothing offensive in the expression. In this view, I am willing to admit it, because it conduces to the reputation of the Government and of the Secretary of State, who in this business appears to have conducted with the frankness of a man of talents, and the manner of a practical man of sense. I consider this bill as not corresponding with the resolutions of last session, as not corresponding with the general sentiment in regard to the non-intercourse law when it passed; nor with the general sentiment fairly to be collected from the correspondence of our officers with the British Minister. If it be asked, what other system would be proper, I acknowledge it to be a question of difficulty. But, for myself, I think I would say that I would prefer an armed neutrality; not such a one as distinguished the confederacy in the Baltic, not one to assert new pretensions; but one temperate in its claims, specific in its object. And I could really wish that in the present state of the world we should turn our attention to a system of policy which shall be founded on general principles, and at least say what are the rights which as neutrals we claim, and what the pretensions to which as neutrals we will submit; and if our legislation were of that character, we never should be embarrassed as we are. We pass a law that if edicts of the belligerents be revoked or modified, trade shall be renewed. Now, the edicts then in existence might be revoked, and others substituted, and the law would be complied with. The whole system has been constituted too much in reference to particular cases. But I have one further objection to this bill, viz: that by it you do permit trade with French trading vessels, thus. There is no prohibition to the furnishing supplies to French vessels. The French vessels, going to sea, go armed and under the authority of their Government; and coming into the ports of this country may be supplied with any thing they wish without an infraction of the letter of the law. Let any public armed vessel come into the waters of the United States, and they may purchase whatever they please. There is no law to prohibit it, nor any authority placed in the Government of the United States to prevent them from purchasing. The state of the case now is, that your vessels shall not be cleared out to carry any thing to France, but your boats and every thing that sails may be employed to carry provisions to French armed ships in your harbors, and they may be completely loaded. If this be the intention of gentlemen, I have nothing further to say; if it be not their intention, they will have in this case, as they have had in others, a very great experience of the disadvantages of undertaking to chop up law. From these general views of the subject, sir, I am opposed to the passage of the law. Messrs. PITKIN and QUINCY stated their reasons for voting against the bill. And on the question, "Shall the bill pass?" it was decided in the affirmative--yeas 72, nays 15, as follows: YEAS.--Lemuel J. Alston, Willis Alston, jr., William Anderson, Ezekiel Bacon, William W. Bibb, Adam Boyd, John Brown, Robert Brown, William A. Burwell, Joseph Calhoun, John Campbell, Howell Cobb, James Cochran, Orchard Cook, James Cox, Richard Cutts, John Dawson, Joseph Desha, James Emott, J. W. Eppes, William Findlay, Jonathan Fisk, Gideon Gardner, Thomas Gholson, jr., Peterson Goodwyn, Thomas R. Gold, Daniel Heister, William Helms, Jacob Hufty, Robert Jenkins, Richard M. Johnson, William Kennedy, Herman Knickerbacker, Robert Le Roy Livingston, John Love, Matthew Lyon, Aaron Lyle, Robert Marion, Vincent Matthews, Samuel McKee, William Milnor, John Montgomery, Nicholas R. Moore, Thomas Newton, Joseph Pearson, John Porter, Peter B. Porter, Josiah Quincy, John Rea, of Pennsylvania, John Rhea of Tennessee, Matthias Richards, John Roane, Ebenezer Sage, Thomas Sammons, Daniel Sheffey, John Smilie, George Smith, Samuel Smith, Henry Southard, John Stanley, James Stephenson, Jacob Swoope, John Thompson, Uri Tracy, Nicholas Van Dyke, Archibald Van Horne, Robert Weakley, Laban Wheaton, Robert Whitehill, Ezekiel Whitman, Robert Witherspoon, and Richard Wynn. NAYS.--Daniel Blaisdell, John C. Chamberlain, S. W. Dana, John Davenport, jr., William Ely, William Hale, Nathaniel A. Haven, James Holland, Jonathan H. Hubbard, Edward St. Loe Livermore, Nathaniel Macon, Timothy Pitkin, jr., John Ross, Richard Stanford, and John Taylor. Absent, 54 members. WEDNESDAY, June 28. _Emigrants from Cuba._ On motion of Mr. MARION, the House resolved itself into a Committee of the Whole on the bill for the remission of certain fines and penalties. [This bill provides for the remission of penalties incurred by the captains and owners of vessels which have been compelled to take on board emigrants from Cuba, with their slaves, the landing of the latter in the United States having, under present laws, forfeited the vessels and cargoes and fined the persons concerned.] Mr. MARION observed that he had, a day or two ago, presented petitions from persons bringing in slaves, amongst which were some documents, one of which was the opinion of the district court of South Carolina, by which it appeared that, if the bill passed in the present shape, no relief would be afforded by it; for, it had not appeared on the trial that the _slaves_ were forcibly expelled from the island, though the _owners_ were. He therefore moved an amendment to include slaves owned by persons who were expelled from the island.--Motion agreed to without opposition. Mr. M. then moved to add a proviso: "_And provided, also_, that such slaves shall have been brought in at the same time as their owners, respectively."--Agreed to. Mr. ROSS observed that a former act on the subject of the importation of slaves said, that it should not be lawful to bring into the United States any negro, mulatto, or person of color, with intention to sell the same or hold them as slaves. The present case appeared to him to be one in direct violation of that law. Under the act of 1807, it had become the duty of the court to examine whether it was the intention of the parties to infringe or violate the laws. After a fair examination by a court, under a desire to relieve those interested, and a failure of every attempt to show that they were compelled to take on board these slaves, was the House about to sit in judgment and reverse the decision? Mr. R. said that provision was also made in the bill as to slaves that may hereafter arrive in the United States, giving a power to the President of the United States, at his discretion, to set aside the law. What reason could there be for enacting this law, if the principles of the law of 1807 were correct? If it was intended, by a side blow, to repeal that law, he had rather see it done at once; and not, whilst in appearance we had such a law, to give the President a dispensing power over it. It was said that the persons concerned in bringing them in were distressed. How distressed? Only because they could not prove they were compelled to bring them into the country. Mr. R. said he did not wish to irritate the feelings of gentlemen from any portion of the Union, but he was sorry to see a bill introduced to unsettle what he conceived to be a valuable provision, enacted some sessions ago. Mr. NEWTON said he felt as much repugnance as the gentleman from Pennsylvania to touch that law; but, if the gentleman would consider that this was a case of a peculiar nature, attended with singular circumstances, he would withdraw his objection. And he verily believed, that had the Legislature foreseen what had taken place, they would certainly have inserted a provision to meet the case which had occurred. Let it be recollected, said he, that the unfortunate Frenchmen driven on our coast, were some time ago driven from St. Domingo, and were obliged to take shelter at Cuba. Since the commencement of the war in Spain, Cuba has almost witnessed the same scenes as St. Domingo. These people were forced to leave the island in distress, and take what portion of property they could collect. They could not go to France, because no vessels of that country were permitted to touch at the island of Cuba, neither could they go to the French islands in the West Indies. There was no country open to them but America. The American captains, then, were forced to take the French on board, and with them, a few body servants; and, under the former law, these vessels are seized, and liable to forfeiture, our merchants to suffer the loss of vessel and cargo, and the poor emigrants to lose all their little property. Let it be recollected that the law of 1807 does not interfere with the State rights on the subject. This bill only goes so far as to remit all fines and penalties incurred by the captains of vessels, and release the property which would otherwise be condemned, and relieve the perfectly innocent merchants who would otherwise suffer. Let us say to these unfortunates, as Dido to �neas, when he was exiled from Troy: "I have suffered misfortune myself, and therefore know how to extend the hand of relief to others." Mr. MARION said that if the gentleman from Pennsylvania (Mr. ROSS) thought that he had a wish or intention to increase the number of slaves, he was much mistaken. The laws of South Carolina prohibited the bringing these slaves, or any other, into the State; yet they had been brought there, and the persons bringing them there must give security that they would have them carried out of the State. Now, by the non-intercourse law, the State was prevented from sending them away; they would, of course, remain here till the law permitted them to be sent off, for they could go nowhere but to France and her dependencies, France being at war with all the rest of the world. Mr. M. said that there were several captains now in jail under sentence of court for having brought those people into the country; he submitted to the House whether, under the circumstances of the case, the captains had not good reason to suppose that they would not be subject to the penalty of the law. The law prohibiting the importation of slaves was of a highly penal nature, and different from all other laws of that nature, having no clause in it giving a power of remission of penalties; and this bill was guarded in such a manner that no evil could arise. Mr. MACON said it was certainly true that the Southern country wanted no more slaves. The sole object of the bill was to get them away. However desirous the people might be to hold that property, there could be no fear of their wanting them from the West Indies. Mr. MONTGOMERY said it was peculiarly necessary to pass this bill to get rid of the immense number of slaves brought into New Orleans; for every one must know that they were not wanted there. They were too numerous to continue there, and this bill was intended to make provision for their exportation. Mr. NEWTON produced a letter from the collector of New Orleans on this subject. Mr. TAYLOR said it never could have been the intention or spirit of the law of 1807 to increase our population in free blacks. It was not to set free the people of this description that the law had been passed, but to prevent them from being brought here at all. For even in Pennsylvania he had no doubt the gentleman would be content to have no further population of this sort. Mr. T. said that he knew that in the Southern States there was an extreme aversion to receiving an additional free black population. The intent of this bill, so far from being in hostility to the law quoted by the gentleman from Pennsylvania, was in furtherance of it. It was to remove them out of the country. Mr. ROSS said that it was strange that the House should have a bill before it contemplating the removal of a certain description of persons out of the country, when nothing of the kind appeared on the face of it. If that was its intention, there should be a condition that the persons bringing in these slaves should carry them out again. Mr. NEWTON observed that unless this law passed, the inevitable consequence must be that the negroes must remain here. He did not want them, they brought principles which it was known would not promote our interest or happiness. The committee then rose and reported the bill. Mr. NEWTON moved a new section for the relief of Foster and Girard, of New York, whose ship had been forfeited under the law prohibiting the importation of slaves.--Agreed to. And the bill was ordered to a third reading, and subsequently passed without opposition. _Evening Session._ Mr. ROOT reported that the committee had waited on the President according to order, who was pleased to say that he had no further communications to make. About nine o'clock, all the bills having been enrolled and signed, a motion was made to adjourn, and carried; and the SPEAKER, after wishing the members of the House a pleasant journey home, and a happy meeting with their friends, adjourned the House to the fourth Monday in November next. FOOTNOTES: [6] LIST OF REPRESENTATIVES. _New Hampshire._--Daniel Blaisdell, John C. Chamberlain, William Hale, Nathaniel A. Haven, James Wilson. _Massachusetts._--Ezekiel Bacon, William Baylies, Richard Cutts, Orchard Cook, William Ely, Gideon Gardner, Barzillai Gannett, Edward St. Loe Livermore, Benjamin Pickman, jr., Josiah Quincy, Ebenezer Seaver, Samuel Taggart, William Stedman, Jabez Upham, Joseph B. Varnum, Laban Wheaton, Ezekiel Whitman. _Rhode Island._--Richard Jackson, jr., Elisha E. Potter. _Connecticut._--Epaphroditus Champion, Samuel W. Dana, John Davenport, Jonathan O. Mosely, Timothy Pitkin, jr., Lewis B. Sturges, Benjamin Tallmadge. _Vermont._--William Chamberlin, Martin Chittenden, Jonathan H. Hubbard, Samuel Shaw. _New York._--James Emott, Jonathan Fisk, Barent Gardenier, Thomas E. Gold, Herman Knickerbacker, Robert Le Roy Livingston, Vincent Matthews, John Nicholson, Gurdon S. Mumford, Peter B. Porter, Ebenezer Sage, Thomas Sammons, Erastus Root, John Thompson, Uri Tracy, Killian K. Van Rensselaer. _Pennsylvania._--William Anderson, David Bard, Robert Brown, William Crawford, William Findlay, Daniel Heister, Robert Jenkins, Aaron Lyle, William Milnor, John Porter, John Rea, Benjamin Say, Matthias Richards, John Ross, George Smith, Samuel Smith, John Smilie, Robert Whitehill. _New Jersey._--Adam Boyd, James Cox, William Helms, Jacob Hufty, Thomas Newbold, Henry Southard. _Delaware._--Nicholas Van Dyke. _Maryland._--John Brown, John Campbell, Charles Goldsborough, Philip Barton Key, Alexander McKim, John Montgomery, Nicholas R. Moore, Roger Nelson, Archibald Van Horne. _Virginia._--Burwell Bassett, James Breckenridge, William A. Burwell, Matthew Clay, John Dawson, John W. Eppes, Thomas Gholson, jr., Peterson Goodwyn, Edwin Gray, John G. Jackson, Walter Jones, Joseph Lewis, jr., John Love, Thomas Newton, Wilson Carey Nicholas, John Randolph, John Roane, Daniel Sheffey, John Smith, James Stephenson, Jacob Swoope. _North Carolina._--Willis Alston, jr., James Cochran, Meshack Franklin, James Holland, Thomas Kenan, William Kennedy, Archibald McBride, Nathaniel Macon, Joseph Pearson, Lemuel Sawyer, Richard Stanford, John Stanley. _South Carolina._--Lemuel J. Alston, William Butler, Joseph Calhoun, Robert Marion, Thomas Moore, John Taylor, Robert Witherspoon, Richard Wynn. _Georgia._--William W. Bibb, Howell Cobb, Dennis Smelt, George W. Troup. _Kentucky._--Henry Crist, Joseph Desha, Benjamin Howard, Richard M. Johnson, Matthew Lyon, Samuel McKee. _Tennessee._--Pleasant M. Miller, John Rhea, Robert Weakley. _Ohio._--Jeremiah Morrow. _Mississippi Territory._--George Poindexter. _Orleans Territory._--Julian Poydras. ELEVENTH CONGRESS--SECOND SESSION. BEGUN AT THE CITY OF WASHINGTON, NOVEMBER 27, 1809. PROCEEDINGS IN THE SENATE. MONDAY, November 27, 1809. Conformably to the act passed at the last session, entitled "An act to fix the time for the next meeting of Congress," the second session of the eleventh Congress commenced this day; and the Senate assembled, in their Chamber, at the city of Washington. PRESENT: NICHOLAS GILMAN, from New Hampshire. TIMOTHY PICKERING, from Massachusetts. CHAUNCEY GOODRICH, from Connecticut. STEPHEN R. BRADLEY and JONATHAN ROBINSON, from Vermont. JOHN LAMBERT, from New Jersey. ANDREW GREGG and MICHAEL LEIB, from Pennsylvania. WILLIAM B. GILES, from Virginia. JAMES TURNER, from North Carolina. THOMAS SUMTER and JOHN GAILLARD, from South Carolina. BUCKNER THRUSTON and JOHN POPE, from Kentucky. RETURN JONATHAN MEIGS and STANLEY GRISWOLD, from Ohio. The number of Senators present not being sufficient to constitute a quorum, the Senate adjourned to 11 o'clock to-morrow morning. TUESDAY, November 28. The Senate assembled--present as yesterday; and OBADIAH GERMAN, from the State of New York; JAMES HILLHOUSE, from the State of Connecticut; ELISHA MATHEWSON, from the State of Rhode Island; and NAHUM PARKER, from the State of New Hampshire, severally attended. ANDREW GREGG, President _pro tempore_, resumed the chair. The PRESIDENT communicated a letter from the Surveyor of the Public Buildings, stating the difficulties that have prevented the entire completion of the permanent Senate Chamber; which letter was read. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled, and ready to attend to business. _Ordered_, That Messrs. GILMAN and GAILLARD be a committee on the part of the Senate, together with such committee as may be appointed by the House of Representatives on their part, to wait on the President of the United States, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. _Ordered_, That the Secretary acquaint the House of Representatives therewith. A message from the House of Representatives informed the Senate that the House have appointed a committee, on their part, jointly with such committee as may be appointed on the part of the Senate, to wait on the President of the United States, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. _Resolved_, That James Mathers, Sergeant-at-Arms and Doorkeeper to the Senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the Doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after. Mr. GILMAN reported, from the joint committee, that they had waited on the President of the United States, agreeably to order, and that the President of the United States informed the committee that he would make a communication to the two Houses to-morrow, at 12 o'clock. WEDNESDAY, November 29. JAMES LLOYD, from the State of Massachusetts, attended. _President's Message._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Fellow-citizens of the Senate, and of the House of Representatives_: At the period of our last meeting, I had the satisfaction of communicating an adjustment with one of the principal belligerent nations, highly important in itself, and still more so, as presaging a more extended accommodation. It is with deep concern I am now to inform you, that the favorable prospect has been overclouded by a refusal of the British Government to abide by the act of its Minister Plenipotentiary, and by its ensuing policy towards the United States, as seen through the communications of the Minister sent to replace him. Whatever pleas may be urged for a disavowal of engagements formed by diplomatic functionaries, in cases where, by the terms of the engagements, a mutual ratification is reserved; or where notice at the time may have been given of a departure from instructions; or, in extraordinary cases, essentially violating the principles of equity; a disavowal could not have been apprehended in a case where no such notice or violation existed; where no such ratification was reserved; and, more especially, where, as is now in proof, an engagement, to be executed, without any such ratification, was contemplated by the instructions given, and where it had, with good faith, been carried into immediate execution on the part of the United States. These considerations not having restrained the British Government from disavowing the arrangement, by virtue of which its orders in council were to be revoked, and the event authorizing the renewal of commercial intercourse having thus not taken place, it necessarily became a question of equal urgency and importance, whether the act prohibiting that intercourse was not to be considered as remaining in legal force. This question being, after due deliberation, determined in the affirmative, a proclamation to that effect was issued. It could not but happen, however, that a return to this state of things, from that which had followed an execution of the arrangement by the United States, would involve difficulties. With a view to diminish these as much as possible, the instructions from the Secretary of the Treasury, now laid before you, were transmitted to the collectors of the several ports. If, in permitting British vessels to depart without giving bonds not to proceed to their own ports, it should appear that the tenor of legal authority has not been strictly pursued, it is to be ascribed to the anxious desire which was felt, that no individuals should be injured by so unforeseen an occurrence: and I rely on the regard of Congress for the equitable interests of our own citizens, to adopt whatever further provisions may be found requisite for a general remission of penalties involuntarily incurred. The recall of the disavowed Minister having been followed by the appointment of a successor, hopes were indulged that the new mission would contribute to alleviate the disappointment which had been produced, and to remove the causes which had so long embarrassed the good understanding of the two nations. It could not be doubted that it would at least be charged with conciliatory explanations of the step which had been taken, and with proposals to be substituted for the rejected arrangement. Reasonable and universal as this expectation was, it also has not been fulfilled. From the first official disclosures of the new Minister, it was found that he had received no authority to enter into explanations relative to either branch of the arrangement disavowed, nor any authority to substitute proposals, as to that branch which concerned the British orders in council. And, finally, that his proposals with respect to the other branch, the attack on the frigate Chesapeake, were founded on a presumption, repeatedly declared to be inadmissible by the United States, that the first step towards adjustment was due from them; the proposals, at the same time, omitting even a reference to the officer answerable for the murderous aggression, and asserting a claim not less contrary to the British laws and British practice, than to the principles and obligations of the United States. The correspondence between the Department of State and this Minister will show how unessentially the features presented in its commencement have been varied in its progress. It will show, also, that, forgetting the respect due to all governments, he did not refrain from imputations on this, which required that no further communications should be received from him. The necessity of this step will be made known to His Britannic Majesty, through the Minister Plenipotentiary of the United States in London. And it would indicate a want of the confidence due to a Government which so well understands and exacts what becomes foreign Ministers near it, not to infer that the misconduct of its own Representative will be viewed in the same light in which it has been regarded here. The British Government will learn, at the same time, that a ready attention will be given to communications, through any channel which may be substituted. It will be happy, if the change in this respect should be accompanied by a favorable revision of the unfriendly policy which has been so long pursued towards the United States. With France, the other belligerent, whose trespasses on our commercial rights have long been the subject of our just remonstrances, the posture of our relations does not correspond with the measures taken on the part of the United States to effect a favorable change. The result of the several communications made to her Government, in pursuance of the authorities vested by Congress in the Executive, is contained in the correspondence of our Minister at Paris, now laid before you. By some of the other belligerents, although professing just and amicable dispositions, injuries materially affecting our commerce have not been duly controlled or repressed. In these cases, the interpositions deemed proper, on our part, have not been omitted. But, it well deserves the consideration of the Legislature, how far both the safety and the honor of the American flag may be consulted, by adequate provisions against that collusive prostitution of it by individuals, unworthy of the American name, which has so much favored the real or pretended suspicions, under which the honest commerce of their fellow-citizens has suffered. In relation to the powers on the coast of Barbary, nothing has occurred which is not of a nature rather to inspire confidence than distrust, as to the continuance of the existing amity. With our Indian neighbors, the just and benevolent system continued towards them, has also preserved peace, and is more and more advancing habits favorable to their civilization and happiness. From a statement which will be made by the Secretary of War, it will be seen that the fortifications on our maritime frontier are, in many of the ports, completed, affording the defence which was contemplated; and that a further time will be required to render complete the works in the harbor of New York, and in some other places. By the enlargement of the works, and the employment of a greater number of hands at the public armories, the supply of small arms, of an improving quality, appears to be annually increasing, at a rate, that, without those made on private contract, may be expected to go far towards providing for the public exigency. The act of Congress providing for the equipment of our vessels of war having been fully carried into execution, I refer to the statement of the Secretary of the Navy for the information which may be proper on that subject. To that statement is added a view of the transfers of appropriations, authorized by the act of the session preceding the last, and of the grounds on which the transfers were made. Whatever may be the course of your deliberations on the subject of our military establishments, I should fail in my duty in not recommending to your serious attention the importance of giving to our militia, the great bulwark of our security and resource of our power, an organization the best adapted to eventual situations, for which the United States ought to be prepared. The sums which had been previously accumulated in the Treasury, together with the receipts during the year ending on the 30th of September last, and amounting to more than nine millions of dollars, have enabled us to fulfil all our engagements, and to defray the current expenses of our Government, without recurring to any loan. But the insecurity of our commerce, and the consequent diminution of the public revenue, will probably produce a deficiency in the receipts of the ensuing year, for which, and for other details, I refer to the statements which will be transmitted from the Treasury. In the state which has been presented of our affairs with the great parties to a disastrous and protracted war, carried on in a mode equally injurious and unjust to the United States as a neutral nation, the wisdom of the National Legislature will be again summoned to the important decision on the alternatives before them. That these will be met in a spirit worthy of the councils of a nation conscious both of its rectitude and of its rights, and careful as well of its honor as of its peace, I have an entire confidence. And that the result will be stamped by a unanimity becoming the occasion, and be supported by every portion of our citizens, with a patriotism enlightened and invigorated by experience, ought as little to be doubted. In the midst of the wrongs and vexations experienced from external causes, there is much room for congratulation on the prosperity and happiness flowing from our situation at home. The blessing of health has never been more universal. The fruits of the seasons, though in particular articles and districts short of their usual redundancy, are more than sufficient for our wants and our comforts. The face of our country every where presents the evidence of laudable enterprise, of extensive capital, and of durable improvement. In a cultivation of the materials, and the extension of useful manufactures, more especially in the general application to household fabrics, we behold a rapid diminution of our dependence on foreign supplies. Nor is it unworthy of reflection, that this revolution in our pursuits and habits is in no slight degree a consequence of those impolitic and arbitrary edicts, by which the contending nations, in endeavoring, each of them, to obstruct our trade with the other, have so far abridged our means of procuring the productions and manufactures of which our own are now taking the place. Recollecting, always, that, for every advantage which may contribute to distinguish our lot from that to which others are doomed by the unhappy spirit of the times, we are indebted to that Divine Providence whose goodness has been so remarkably extended to this rising nation, it becomes us to cherish a devout gratitude, and to implore, from the same Omnipotent source, a blessing on the consultations and measures about to be undertaken for the welfare of our beloved country. JAMES MADISON. NOVEMBER 29, 1809. The Message and documents therein referred to were read, and five hundred copies of the Message, and also five hundred copies of the Message together with five hundred copies of the documents, were ordered to be printed for the use of the Senate. On motion, by Mr. GOODRICH, _Resolved, unanimously_, That the members of the Senate, from a sincere desire of showing their respect to the memory of the Honorable SAMUEL WHITE, deceased, late a member thereof, will go into mourning for one month, by the usual mode of wearing a crape round the left arm. THURSDAY, November 30. PHILIP REED, from the State of Maryland, attended. JOHN CONDIT, appointed a Senator by the Legislature of the State of New Jersey, in the place of Aaron Kitchel, resigned, produced his credentials, which were read; and, the oath prescribed by law having been administered to him, he took his seat in the Senate. MONDAY, December 4. RICHARD BRENT, from the State of Virginia, and WILLIAM H. CRAWFORD, from the State of Georgia, severally attended. SAMUEL SMITH, appointed a Senator by the Legislature of the State of Maryland from the 15th of November, 1809, to the 4th of March, 1815, produced his credentials, which were read; and the oath prescribed by law having been administered to him, he took his seat in the Senate. A message from the House of Representatives informed the Senate that the House concur in the resolution of the Senate of the 30th of November, for the appointment of Chaplains, and have appointed the Rev. JESSE LEE Chaplain on their part. TUESDAY, December 5. _The British Minister._ Mr. GILES, from the committee appointed on the first instant, reported in part the following resolution; which was read the first time, and passed to the second reading: _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That the expressions contained in the official letter of Francis James Jackson, Minister Plenipotentiary of his Britannic Majesty near the United States, dated the 23d day of October, 1809, and addressed to Mr. Smith, Secretary of State, conveying the idea, that the Executive Government of the United States had knowledge that the arrangement lately made by Mr. Erskine, his predecessor, on behalf of his Government, with the Government of the United States, was entered into without competent powers on the part of Mr. Erskine for that purpose, were highly indecorous and insolent; that the repetition of the same intimation in his official letter dated the 4th of November, 1809, after he was apprised, by the asseveration of the Secretary of State, that the Executive Government had no such knowledge, and that if it had possessed such knowledge such arrangement would not have been entered into on the part of the United States, and after also being officially apprised that such intimation was inadmissible, was still more insolent and affronting; and that, in refusing to receive any further communications from him in consequence of these outrageous and premeditated insults, the Executive Government has manifested a just regard to its own dignity and honor, as well as to the character and interest of the American people. That the letter signed Francis James Jackson, headed "Circular," dated the 13th of November, 1809, and published and circulated through the country, is a still more direct and aggravated insult and affront to the American people and their Government, as it is evidently an insidious attempt to excite their resentments and distrusts against their own Government, by appealing to them, through false or fallacious disguises, against some of its acts; and to excite resentments and divisions amongst the people themselves, which can only be dishonorable to their own characters and ruinous to their own interests; and the Congress of the United States do hereby solemnly pledge themselves to the American people and to the world to stand by and support the Executive Government in its refusal to receive any further communications from the said Francis James Jackson, and to call into action the whole force of the nation if it should become necessary in consequence of the conduct of the Executive Government in this respect to repel such insults and to assert and maintain the rights, the honor, and the interests of the United States. _Privileges of Foreign Ministers._ Mr. GILES, from the same committee, also reported the following bill, which was read and passed to a second reading: A bill to prevent the abuse of the privileges and immunities enjoyed by Foreign Ministers within the United States. _Be it enacted, &c._, That if any foreign Ambassador, Minister, or other person, entitled to enjoy within the United States the privileges and immunities of a foreign Minister, shall have committed, or may hereafter commit, any such act as by the laws and usages of nations would justify the President of the United States in ordering such offending Ambassador, Minister, or other person as aforesaid, out of the District of Columbia, or out of the Territories of the United States; or in sending him home to his Sovereign, or to some place or territory within his Sovereign's jurisdiction; in every such case where the President of the United States shall deem it proper and expedient to exercise his constitutional authority, in either of these respects he shall be, and is hereby authorized and empowered to cause a warrant to be issued and signed by the Secretary of State, directed to any civil officer of the United States, authorized to serve process, or any military officer under the authority of the United States, commanding him to provide for and enforce the departure of such Ambassador, Minister, or other person offending as aforesaid, taking due precautions to avoid improper or unnecessary violence in executing such warrant. And all officers, civil and military, under the authority of the United States, are hereby required and enjoined to be obedient to such warrant. And in case any officer, civil or military, to whom such warrant shall be directed, shall fail, or unreasonably delay to execute the same, every officer so offending shall be deemed guilty of a high misdemeanor, and shall be punished by fine and imprisonment before any court of the United States having cognizance of the offence. _Provided_, That the fine shall not exceed ---- dollars, nor the imprisonment be for a longer time than ---- years. Mr. GILES gave notice that he should call for the consideration of this subject on Thursday next. FRIDAY, December 8. _The British Minister._ The resolution reported by Mr. GILES, approving the conduct of the Executive in refusing to hold any further communication with Mr. Jackson, was taken up in the Senate as in Committee of the Whole. The resolution having been read, Mr. GILES rose, and spoke as follows: Mr. President: Before I proceed to perform the duties enjoined upon me as chairman of the committee who reported the resolution before you, permit me to express my regret that the consideration of a subject which justly excites so much sensibility should have been delayed, even only one day, on my account; and be assured, sir, that nothing less than an indisposition, sufficient to justify it, would have caused me to have been absent from my place yesterday. Perhaps, sir, I owe an apology to the Senate at this time for entering into this debate under a state of hoarseness, which must necessarily disqualify me, in some degree, from discharging my duty on the present occasion. But, sir, it is a subject of great consolation to me, to reflect that I am fortunately favored with associates on the committee, either of whom could perform the task I am now engaged in better than myself, and some of whom will certainly do me the favor of correcting any errors I may unintentionally commit, or supplying any omissions I may inadvertently make. Although it appears to me that the propriety and urgency of the resolution now under consideration must be strongly addressed, both to the judgment and sensibility of every gentleman who has carefully attended to the distribution of powers under our constitution, and who has also carefully attended to the correspondence which gave rise to the resolution, yet, in a case of so much delicacy, it would naturally be expected, and is a respect due to the Senate, from the chairman of the committee, to present to it at least some of the general motives which induced the committee to report the resolution at this time. It is to be observed, Mr. President, that our constitution is peculiar in the organization and distribution of its powers; and in no respect is it more peculiar than in the distribution of the particular powers embraced by the resolution. In all other Governments known to us, the same department which possesses the power to receive and negotiate with foreign Ambassadors and other public Ministers, also possesses the power to make war. It has been thought wise in our constitution to separate these powers. With a simplicity of language, and a solidity of wisdom almost peculiar to our constitution, the President is invested with the power to receive Ambassadors and other public Ministers; thus using the broadest terms in granting this power, without even an attempt at limitation or specification; evidently with a view that all the incidental or consequential powers might flow from this general expression to the department thus invested with this general power. It was easy to foresee (and no doubt the framers of our constitution did foresee) that the multiplicity and diversity of cases which would arise in the course of various diplomatic manoeuvres and negotiations, would set at defiance all attempts to limit or specify the powers of the department, in this respect, to which these powers were confided, and to be exercised on the part of the United States; and, therefore, every attempt of that kind was wisely avoided, leaving to the President to exercise his authority upon his own responsibility, to be regulated by the only established standard amongst nations, to wit: the laws and usages of nations. For, it never can be presumed, sir, that the wise sages who framed our excellent constitution could for a moment have tolerated the idea that the Ministers of foreign nations residing near the Government of the United States, should possess greater privileges and immunities than the Ministers of our Government residing near foreign Courts. Of course, the same laws--to wit, the laws and usages of nations--were left reciprocally to govern in every reciprocal case. But, sir, notwithstanding the President is invested with the power "to receive Ambassadors and other public Ministers," and, as I think, all other incidental or consequential powers applicable to the various agencies with such Ambassadors and other public Ministers, yet Congress is invested with the power, without limitation or qualification, "to declare war." Now, sir, it must be obvious to every understanding, that these several powers are so intimately connected, and may be so dependent upon each other, that the exercise of the power conceded to the President may consequentially involve the necessity of the exercise of the power conceded to Congress, as in the case now under consideration. The refusal of the Executive to receive any further communications from His Britannic Majesty's Minister, (Mr. Jackson,) may consequentially involve us in war with Great Britain; or, in other words, may serve as a pretext for Great Britain to make war upon us, if she should conceive it her interest to do so, which I think not very improbable. Hence arises, in my judgment, the propriety and urgency of expression of the Congressional opinion upon this Executive act, and a declaration of the Congressional will as to the course of conduct Congress will pursue under any consequences which may flow from, or possibly be attributed to, this Executive act. I conceive, sir, that the expression of this opinion, and the pledge of a solemn declaration, by Congress, are due to the people, because the people have the greatest interest in the character of their Government; and in no part of its attributes have a deeper interest than in its efficacy to resist and impel injuries and insults from foreign Governments. The people, also, are the mediate or immediate electors of Congress, and as such have a right to expect and demand that Congress will execute all their duties, and will never shrink from their constitutional responsibility in any case; and, last of all, in a case of so high and solemn a character as the one under consideration. This course of conduct is essentially due to the Executive. The President ought to know whether, with the indispensable co-operation of Congress, he ought to proceed with dignified moderation and intelligence to assert and maintain the rights, the honor, and the interests, of the American people; or whether, for the want of that co-operation, he shall with shame and confusion of face be compelled to retrace his steps, and leave to Congress to abandon these high attributes of the nation, and, with their degradation, to record their country's ruin and disgrace. No, sir, it is not possible that an American Congress does exist, or can ever exist, that would not spurn from themselves every vestige of an idea that they could be brought, under any circumstances, to perform so degrading and dishonorable a task. It is imperiously demanded by the dignity and candor of Congress itself. What, sir, shall the exercise of one of the highest constitutional functions of Congress be brought into question, and every individual in the nation engaged in expressing an opinion on it; and shall Congress alone stand aloof, for fear of incurring a responsibility imposed on them by the constitution? Shall Congress stand by as idle spectators, and see a contest before the people, between the President and a foreign Minister, and feel no interest and take no share in such an unprecedented scene, especially when one of their highest constitutional functions may be affected by it! No, sir. Congress must speak--Congress must act. Congress never can shrink from its constitutional responsibility. It is due to the dignity--it is demanded from the candor--of Congress. Above all, sir, it is important to the United States as a nation, that the Congressional will should be proclaimed upon this delicate and solemn occasion. It is of importance, it may be of the last importance, to the United States, that Great Britain should know, before she decides upon this subject, what is the Congressional will in relation to it. Whether she will be called upon to act against an united, harmonized Government and people--or whether she shall have for her prey, a divided people and a discordant Government. Do you believe, Mr. President, that the conduct of Great Britain would be very different under these different conditions of the people and Government of the United States? Let me ask you this question, sir: would you not, sir, if you were Prime Minister of Great Britain, consulting her interest alone, pursue a very different course of conduct under this different state of things? Let every gentleman put the question to himself; and the answer of every one would be the same. Why then, sir, do we not unanimously take the ground here which, if we were called upon to act in an opposite hostile character, would most certainly deter us from persevering in that hostile character against the United States? Sir, if there had been any doubt upon this subject, our late experience ought to have removed it; for, sir, I have no hesitation in saying, and with pain at heart I shall be compelled to show it in the course of this debate, that, in my judgment, our present embarrassments are too much to be ascribed to our former manifestations of indecision, to our unfortunate dissensions and divisions. Sir, whenever I approach this sorrowful and awful subject, my heart feels as if it were bleeding at every pore, when I am compelled to reflect, and to believe, that this our beloved and happy country may shortly become a bleeding victim, from wounds--if not inflicted by the hands of her own sons, at least by their unhappy divisions and dissensions. Yes, sir, with a full knowledge of what is past, and strong presages of what is to come, is it not deplorable to be compelled to think, that, in a very few months, perhaps in a still shorter time, American blood must be shed, to repel the hostile spirit of Great Britain, now rendered too manifest to every understanding; and worse than all, sir, to wash away the stains of our own unfortunate divisions and dissensions; and is it not wonderful, as it is deplorable, that the virtuous and patriotic American people, and sometimes called the most enlightened in the world, with the experience of the horrible consequences, through all ages, of the divisions of a people amongst themselves, should permit themselves from the same cause, to fall a prey to the same inevitable calamities? Look, Mr. President, through all history, from the first dispute between Cain and Abel, down to the late disastrous dissensions between the Spanish branch of the Bourbon dynasty, and find if you can, sir, a single instance of a people who gained any advantage from dissensions among themselves, and especially, sir, when they carried them so far, as to join a foreign against their country's standard! I believe, sir, not one solitary instance of this kind stands recorded. Nor is it possible or practicable in any state of human affairs--because in all cases, the foreign interference in the internal concerns of its neighbors is always for its own and never for its neighbor's benefit. With these monitory lessons before our eyes, and a full conviction of their truth upon our hearts, is it not wonderful, that we should voluntarily give up ourselves victims to the same calamities? But, sir, gentlemen may ask, where is the remedy? How can we make a sacrifice of our own opinions? Sir, the case is a plain one. Let gentlemen exercise their opinions and persevere in their arguments at all times respecting our internal concerns, as well before as after the measures are adopted; let them, respecting our foreign relations, urge their arguments with a zeal proportioned to the magnitude of the subject; they will be pleasurably received, and respectfully considered; but after the Government has taken its attitude against a foreign nation, it would be going too far to desert its standard, and to join that of the enemy. It is then time for opinion to pause and reflect, whether any consequence can be worse, or more disgraceful, than joining a foreign against its country's standard? Whether it would not be better, more patriotic, more virtuous, to support your country even in a supposed unwise course of policy, than to join a foreign standard, and use it to correct and change the course of policy thus disapproved? Sir, in a contest between your own and a foreign nation, it never can be wrong to join the standard of your own country; nor right to join the standard of your enemy. Then, sir, here is a rallying point. It is a plain and obvious one. No understanding can mistake it. No heart can disapprove it. It is our own Government. Let that be the rallying point. There never can be a more propitious moment than the present for casting into oblivion all former irritations and dissensions. There can never be a plainer case presented to the human understanding. There never were more urgent considerations in favor of the course recommended. Whether we respect their repulsive effects upon British hostility or their harmonizing effects among ourselves, they appear to me to be equally strong and persuasive. May I not then, sir, indulge the pleasing hope, that the resolution before you will be received as the signal of unanimity in Congress, and joyfully hailed in that character through the whole of this great and extended country? Sir, does it not manifest a strange perverseness in the human character, for us to observe that, when it is perfectly at our option, we should choose to distress and injure ourselves by irritations and resentments, rather than delight ourselves with union and harmony and mutual good offices? Especially, sir, when the latter choice would command the respect, if not excite the alarm of our enemy. For, sir, do you believe that if Great Britain saw the strong arm of this nation stretched out to oppose her unjust spirit of hostility, guided in all its operations by one undivided will, she would so readily encounter its powerful influence, as if she saw it paralyzed in all its efforts from the want of a unity of will and action? No, sir, we undervalue our energies and importance, if we were to suppose that her conduct would be the same in both of these situations; or that she is at all indifferent to the course of conduct now to be pursued by us. Let us then all unite, sir, in this proposition, and disappoint her mistaken calculations upon her influence in this country. I verily believe, that union is all that is wanting to appease her hostile spirit towards us. But perhaps, sir, every gentleman present will admit, and it appears to me that no human being can deny, that if the facts stated in the resolution be supported by the correspondence upon which it is founded, that then every gentleman would readily assent to the resolution. But, sir, it is possible, although it appears to be scarcely possible, that some gentlemen may doubt whether the facts stated in the resolution be supported by the correspondence or not. This I admit is a fair though delicate inquiry, and I will therefore immediately proceed to the examination of that question--and I beg the most critical attention of the Senate in the course of the investigation. I will now proceed, Mr. President, to inquire whether the facts stated in the resolution are supported by the correspondence upon which it is founded? In performing this task, I propose to read the whole of the correspondence which I conceive bears any material relation to the subject of the resolution, and no other; although the whole may not be entitled to, nor receive any animadversions from me, yet as my sole object is to get at the true exposition and meaning of the correspondence, if I should unfortunately omit, misconceive, or misinterpret any material part of it, I shall have the consolation to reflect, that, by presenting the whole, the means of my correction in either case will be presented to the Senate and the world, if the observations I propose now to make should ever find their way out of the walls of this Chamber. I shall also present this correspondence in its responsive order, which will be found to be indispensable to the due comprehension of some of its most essential parts. Permit me, then, sir, to call your attention first to the letter of Mr. Jackson to Mr. Smith, dated the 11th October, 1809, pages 32, 33, of the printed documents. For, sir, although this letter is not mentioned in the resolution, yet it furnishes the original offensive insinuations, and is referred to and reiterated in the letter of the 23d October, which is noticed in the resolution, and therefore the offensive expressions of the letter of the 11th are entitled to, and shall receive, the most accurate and critical attention and analysis. [Here the exceptionable passages were read.] Now, sir, after thus stripping this extraordinary sentence of all its disguises, and translating it into plain English, to what does it amount? Why, sir, certainly and unquestionably to this:--You, Mr. Smith, Secretary of State of the United States, have entered into an arrangement with my predecessor, Mr. Erskine, under such scandalous and dishonorable circumstances as could only lead to a disavowal of it; and you yourself were so well apprised of them, and so conscious of their inevitable operation, as even to think it unreasonable to complain of the disavowal. I defy gentlemen to give to this offensive paragraph any other fair and correct interpretation; and if this be the fair and correct one, can you conceive, sir, of an insult more outrageous and premeditated? And will you not be surprised, sir, to be told that the insult does not stop here; that, as offensive as it already appears, it does not stop here; that it is still further aggravated? Yes, sir, Mr. Jackson, not content with making this extraordinary and insolent communication in its ordinary form, underscores the words "could only," containing the point or gist of the insult, thus aggravating the act, either by the distrust thus manifested of Mr. Smith's mental perceptions; or by letting Mr. Smith know, that the insult was known to, and intentionally given by Mr. Jackson; for the underscoring could not have had any other object in view. In this impudent act of underscoring, Mr. Jackson reminds me, sir, of a set of miserable, conceited pretenders to wit, who, having great confidence in the acuteness of their own mental perceptions, and very little in that of their hearers, will kindly and compassionately explain the point of wit to their hearers, before they approach it in the recital of the story, to prepare and qualify the hearers' minds to join in the laugh intended to be produced by it. Yes, sir, this underscoring was as much as saying to Mr. Smith, I am afraid that I have so nicely wrapped this insult in the veil of mysteries and disguises, that it may escape observation from the obtuseness of your mental perception, but am determined it shall not. I have underscored it for you; you shall look at it; you shall know that I, Mr. Jackson, understand and mean it. I have wrapped it up in mystery and disguise to be sure, but I will rend the veil, I will make an eyelet hole for you, that you shall look through, and behold the insult in all its front of grossness and impudence. But, sir, if Mr. Jackson had then known, as well as he now does, the dignified character, the high sensibility, and the correct intelligence of the Secretary of State, he would have found it more honorable to himself to have spared his insult altogether, or at least might have spared himself the trouble of underscoring. Sir, I conceive this insult so gross and outrageous that I am surprised how the Executive Government could reconcile it to itself to proceed another step in the communications with Mr. Jackson. Certainly, sir, proceeding beyond this point manifests on the part of the Executive great moderation, great forbearance, and a condescension scarcely excusable; and, sir, I am perfectly sure, that nothing could have induced it to consider such gross intimations argumentatively, but the ardent and sincere desire which has invariably actuated the present, as well as the last, Administration to preserve peace and cultivate harmony and a good understanding with Great Britain. And, sir, we shall see, in the course of this investigation, how it has been requited for this, as well as for all former acts of moderation, forbearance, and condescension. Let me now, sir, select out of the quotation another extraordinary expression, for a few animadversions, in the following words: "But the very act of substitution evidently shows that those original conditions were in fact very explicitly communicated to you, and by you, of course, laid before the President for his consideration." It is somewhat curious to observe what stress Mr. Jackson placed through the whole of his correspondence, upon what he is here pleased to term "the very act of substitution," and demonstrates to every impartial mind how slender are the pretexts with which Mr. Jackson is furnished, to apologize for, or rather to equivocate about the disavowal of Mr. Erskine's arrangement. Let me, therefore, inquire, in what this horrible act of substitution, as Mr. Jackson would make it appear, consists? Why, sir, simply in this: That the three inadmissible conditions mentioned in one of the despatches to Mr. Erskine, were verbally communicated to Mr. Smith, and insisted upon by Mr. Erskine, and that Mr. Smith, in rejecting those conditions verbally, and with great propriety and frankness, told Mr. Erskine what conditions he might obtain. Mr. Erskine, upon a review of all his letters of instructions, finding it impossible to obtain his, the three conditions first proposed, conceived himself fully empowered to propose those which possibly might have been intimated to him by Mr. Smith in conversation; and the arrangement was accordingly and promptly made between these two gentlemen on the part of their respective Governments. And now let me ask you, sir, what is there dishonorable, unfair, or even unusual in this proceeding, which is the whole amount of Mr. Jackson's "very act of substitution." Sir, it is very easy to see, that Mr. Jackson keeps his ingenuity constantly upon the stretch respecting this very act of substitution, evidently with a view of producing an impression by the insinuation, that the Executive Government of the United States had more than its share in that arrangement, and, in fact, was concerned in a dishonorable and scandalous combination with his predecessor, Mr. Erskine, for the purpose of producing the arrangement. Which insinuation, if true, must represent Mr. Erskine as a fool, a knave, or a traitor, or all three, and our Executive Government still further lost to every honorable sentiment, and utterly destitute of even the most ordinary understanding. An insinuation so insidious and affronting, cannot fail to excite the indignation and contempt of every patriotic heart in America. But, fortunately for the Executive Government, Mr. Erskine's previous explanation of this point to our Government strips the transaction of every shadow of a shade of a doubt, of which Mr. Jackson perhaps was not apprised at the time he was employed in devising the gross insinuation. Yes, sir, this was one miserable effort of Mr. Jackson to reproach our Executive Government for an act, for which it merited, and universally received, the sincere applause and grateful thanks of the American people. It restored the Executive, as it ought to have done, to universal confidence, and utterly rooted out every doubt of its sincerity in its diplomatic intercourse with Great Britain, under which some of our misled and mistaken citizens, for a while, unfortunately labored. For the moment terms were proposed on the part of Great Britain, which could, with honor or propriety, be accepted by the United States: they were frankly and promptly accepted by the Executive, regardless of all consequences from any other quarter. Sir, there is another part of this quotation which requires a few animadversions. I allude, sir, to the first solemn declaration made to this Government by Mr. Jackson, respecting the despatch, in which the conditions were prescribed to Mr. Erskine. It is in the following words: [Here Mr. GILES read the paragraphs from Mr. Jackson's letter, which charged that Mr. Erskine had shown to Mr. Smith, Secretary of State, the inadmissible conditions laid down in Mr. Canning's despatch; and then read Mr. Erskine's statement that he had not shown that part of Mr. Canning's despatch, and giving the reason why he had not done it.] It is to be observed from this quotation, in the first place, sir, that Mr. Erskine explicitly disavows ever having shown the Executive Government the despatch containing the inadmissible conditions; and thus entirely exculpates it from the odious imputation attempted to be thrown on it by Mr. Jackson, and for this respectful forbearance to our Government, he is certainly entitled to the applause of his own. In the next place, Mr. Erskine explicitly states that the despatch in question contained but one part of his instructions, and that he thought that, from the spirit at least of his several letters of instructions, he was fully authorized to make the arrangement he had done. And I think there is very little doubt but he had--that Mr. Erskine still thinks so, there can be no doubt--for he nowhere says he is now convinced that his powers were incompetent--he only says, that the disavowal by His Majesty is a painful proof to him, that he had formed an erroneous judgment of His Majesty's views and the intentions of his instructions. Whether or not he had formed an erroneous view of His Majesty's views, or the intention of his instructions, I imagine, will depend very much upon the point of time to which the judgment he had formed is referable. If it be referred to the time of Mr. Oakley's mission, I am inclined to think he had neither formed an erroneous judgment of His Majesty's views, nor the intentions of his instructions; but, if he refers to the time of the disavowal, then I think it pretty certain, he had formed an erroneous judgment of both--for I have no doubt but His Majesty's views at least had completely changed between these two periods of time, and the real cause of this change, and of the disavowal itself, is to be looked for in the occurrences which took place, both in Europe and in the United States, during that interval. No, sir, the want of powers on the part of Mr. Erskine is not the true cause of the disavowal. I will now venture to conjecture the true cause, and, if it be the right one, the case will be a plain one, and all equivocations in the explanations rendered unnecessary. To do this, sir, I must call your attention to the state of events in Europe and in the United States, at these different periods of time. Mr. Oakley's mission was immediately after the British Government was apprised of the precipitate retreat of Sir John Moore's army from Spain, and the fortune escape of the remains of it from Corunna. The affairs of Spain, which had before excited such high expectations in the British Cabinet, were given up as hopeless, &c. Contemporaneously with a knowledge of these events, the British Government was also informed of the measures of resistance against her outrageous aggressions, contemplated by Congress; which she then believed would certainly be carried into effect, &c. Such was the state of things at the time of sending the despatches by Mr. Oakley. At the time of the disavowal, a new coalition had been formed, Austria had boldly entered into the war against France, and the Spaniards had been animated into further efforts at resistance, which excited new hopes of success, &c. In this country, too, sir--it pains my heart to be compelled to recite the circumstances--our contemplated measures of resistance had been relaxed, and the whole country exhibited such scenes of divisions and disaffections as paralyzed in some degree the movements of the Government. I wish, sir, I could throw a shade of oblivion over these unfortunate scenes, or recollect them only as they furnish the strongest argument. Indeed, sir, they point with an infallible index to the course it now becomes us to pursue. Yes, sir, it is to these changes in the state of things, you are to look for the real causes of the disavowal, and not to the want of competent instructions on the part of Mr. Erskine; and it would have been more dignified on the part of the British Government to have told us so at once. She would then have said to us, the state of things is changed; at the time of giving the instructions, I was depressed from a combination of untoward events; I am now flushed with new hopes of elevation and of triumph. Besides, you have convinced me that you are untrue to yourselves--that you will shrink from the assertion and support of your own rights--if you will not, I am not bound to respect them, &c. I was then down, I am now up, and therefore I cannot grant you, in a spirit of triumph, what I solemnly promised in a spirit of despondency--I now find this the most favorable moment for establishing my favorite doctrine of the despotism of the ocean; and I cannot, and will not deprive myself of the advantage merely to avoid the imputation of bad faith. Yes, sir, this would have been a much more correct and dignified course on the part of Great Britain than the miserable effort made by Mr. Canning in devising an ingenious mental retort, for converting the bad faith of his own Government, in the disavowal of the arrangement, into a reproach upon ours, for the circumstances under which that arrangement was pretended to have been made. It is true, sir, that in the one case there would have been an admission of _mala fides_, which is basely attempted to be avoided by a miserable subterfuge in the other; but, then the British Cabinet would have had the consolation of having told the truth, taken the responsibility upon themselves and set us at defiance; and we should have been left to our own remedy, with a perfect understanding of the case. She would, also, have had the plea of necessity, the old-fashioned plea of tyrants, and, indeed, of everybody else, who has no better; but this is not Mr. Canning's mode of doing business; he chooses to act by tricks and contrivances; and, in the case of the disavowal, by a mental retort, flowing solely from his own visionary mental conceits, without a fact or pretext for its support. Mr. President, I am told that Mr. Canning is a professed punster. But, sir, I would not condescend to make the observation here, had he not, after heaping upon us, during the whole of his administration, every injury and insult in his power, at the close of it placed us in a ludicrous situation by imposing on us an obligation, in a grave and serious concern to the nation, of expounding his equivoques, and unriddling his riddles. I really feel some condescension in being compelled, in my place, to hunt out for his and Mr. Jackson's meaning, through a transition of sentences, a collocation of words, and a shifting of verbiage. And indulge me, sir, with remarking, that I conceive the situation of a nation never can be more disastrous, calamitous, and lamentable, than when its great and serious affairs are placed in the hands of a parcel of punsters. For, sir, men of minds of that description are too much employed in the pleasing amusement of looking out for coruscations of wit and sentiment, to have any leisure for the more dull and unpleasurable business of observing and marking the great occurrences in human affairs, and of devising means of giving them a direction favorable to their own views, or to their country's interests. No, sir, this is too dull and plodding a pursuit for men of such light, flitting, brilliant imaginations, and if ever they unfortunately undertake it, they soon find the woful misapplication of talents. If, sir, any illustration were wanting of the correctness of these observations, it could nowhere be found better than in an attentive review of the historical events which occurred during the late British administration--the administration of the energetic, the brilliant, the sarcastic, the facetious, the joking Mr. Canning. He has carried his joking propensities far indeed. It may be truly said he jests at scars indeed--at scars of the blackest disgrace and ruin inflicted upon his bleeding country--upon a great nation, which probably would have received, and certainly merited, a better fate, if it had fortunately placed its destinies in better hands. Sir, it appears to me, that all the military enterprises during his whole administration, from the abominable attack on Copenhagen, down to the last expedition against the islands of Zealand, were nothing more than belligerent puns and conundrums. It has been constantly announced that some grand, secret expedition was on hand, and each succeeding one grander than the preceding, until the last expedition to Walcheren, which was the grandest of all; and, when the secret really came out, it appeared either that the object was abominable or contemptible, and the means of executing even the contemptible object, upon experiment, were generally found incompetent. Yes, sir, probably these enterprises have cost the British nation the lives of fifty thousand brave officers and soldiers, and I will not undertake to count the millions of dollars. Sir, the same little-minded course of policy has also been uniformly manifested during the same time against the United States; and in no respect more than in the disavowal of Mr. Erskine's arrangement--in avoiding to avow the real motives for it--and in the uncandid attempt to convert the bad faith of the British Government into a reproach upon our own; and this was to be done by an ingenious mental device, prettily conceived by Mr. Canning, and adroitly executed by Mr. Jackson, who, if not equal to Mr. Canning in the mysterious art of punning, I think can be very little way behind his prototype in the art of equivoques. Sir, the disavowal, in my judgment, was not for the want of competent powers. Too great a share of the real cause of the disavowal, unfortunately, is attributable to ourselves, and now is the moment to relieve ourselves from the imputation. Sir, it is painful for me to be so often compelled to question the candor of any gentleman, particularly one clothed with the high functions of Minister Plenipotentiary of His Britannic Majesty; but permit me to ask you, sir, how it is possible for Mr. Jackson not to conceive that offence would be taken at his offensive insinuations after Mr. Smith's letter of the 1st of November, telling him in strong and decisive terms that offence had been taken at them? or how can Mr. Jackson reconcile it to himself to say that in adhering to these gross insinuations, he did not intend to give offence? Let me ask you, sir, what else he did, or could intend? For my part, I can see nothing else that he could either rationally intend or expect. Here then, sir, is another false or fallacious disguise thrown out before the people of the United States, as will always be the case in every appeal to them, calculated, or evidently intended, to excite their resentments and distrusts against their own Government. Now, sir, upon the most critical review of this exposition, is there a single gentleman present, who is not prepared to say, that the facts stated in the resolution are fully justified by the correspondence? And if they be, sir, what inducement can possibly prevent unanimity on the present occasion? Surely those, who wish peace with Great Britain, will find unanimity upon this occasion the most likely to deter from war; and surely, sir, every gentleman must feel and see that the declarations contained in the resolution are imperiously due to the dignity and honor of our own Government, as well as to our respect for the people and ourselves. Sir, what would be the effect of passing by unnoticed these gross and insidious insults to both the people and Government? Why, sir, foreign Ministers would begin to conceive, that an appeal to the people was amongst the most sacred of their privileges and immunities. The frequency of them already is almost sufficient to establish and sanctify the rule. The cases of Genet, Yrujo, the publication of Mr. Canning's letter in one of the Boston newspapers, &c., never received sufficient animadversions from Congress; and if this most aggravated case of all should pass over unnoticed, I should not be surprised to see Mr. Jackson during the present winter set himself up as a British President in New York, contesting the point of jurisdiction before the people, with the American President at Washington; whilst Congress, regardless of their own constitutional powers, &c., should stand by and behold the extraordinary scene in a state of perfect neutrality. Sir, is it possible that Congress can so far forget their duties to the people and their respect for themselves? Independently of the obvious propriety of this proceeding in itself, have we, sir, no examples of the course of conduct recommended by the resolution? Let me remind you, sir, of the case of Count De Palm in the British Parliament. In that case, sir, the Count De Palm presented a memorial to the British King by the express order of his Government, complaining of the misrepresentation of facts made in the King's speech to Parliament, which complaint the British historians admit was well founded. After presenting the memorial, he caused it to be published and circulated through the country, etc. What, sir, was the conduct of the British Parliament and nation upon that occasion? Sir, the Parliament unanimously entered into resolutions expressing the highest indignation at the insolent procedure; and presented an address to His Majesty requesting him to order the Count De Palm out of the country immediately. Sir, I will not trouble the Senate with reading the proceedings of the House of Commons upon this memorable occasion; because I presented them to the Senate last winter in the case of the publication of Mr. Canning's letter in the Boston paper, and I, therefore, presume they are now fresh in the recollection of every gentleman. And what, sir, was the conduct of the opposition in the British House of Commons, when their King and country were insulted by a foreign Minister? Did they hold back, did they attempt to paralyze the proceedings of their Government in resenting this conduct and retrieving its wounded honor and dignity? No, sir, they were Englishmen, and felt the indignity to themselves! They were patriots, and could not see their Government and nation insulted with indifference! They stepped forward, sir, and were the first to move the resolution and address. The proceeding was unanimous; and what benefit did the British nation receive from this unanimous and prompt proceeding? Why, sir, from the year 1726 to the present time, the insult has not, I believe, been repeated, and probably never will again. Sir, how honorable, how patriotic, was this course of conduct to the British opposition! How honorable and laudable would be its imitation here! Especially, sir, when union is all that is wanting to make us happy and victorious. Why then, sir, should we not have union, when it is so easy and efficacious a remedy for all our difficulties? Sir, the nation expects it; the nation has a right to demand it. May I not then hope, sir, that the hitherto dominant spirit of party will now yield to an occasion, so obvious, so urgent, so honorable! Sir, I cannot express to you the pleasure I should feel at my heart, if I could see all irritations banished, and harmony and mutual good will universally pervading all political scenes and all social intercourse. That the present occasion may be improved to this desirable end, is the most fervent prayer of one, who, in the present delicate, interesting crisis of the nation, feels a devotion for his country beyond every thing else on this side of Heaven! After Mr. GILES concluded, the question was taken on the passage of the resolution to a third reading. There were twenty-four members present, besides the President _pro tem._; of whom twenty voted in favor of it. It was ordered to be read a third time on Monday next. MONDAY, December 11. Mr. GILMAN, from the committee, reported the resolution relating to the official correspondence between the Secretary of State and Francis J. Jackson, Minister Plenipotentiary of His Britannic Majesty, correctly engrossed; and the resolution was read the third time. On the question, Shall this resolution pass? it was determined in the affirmative--yeas 20, nays 4, as follows: YEAS.--Messrs. Bradley, Brent, Condit, Crawford, Gaillard, German, Giles, Gilman, Gregg, Griswold, Lambert, Leib, Mathewson, Meigs, Parker, Pope, Reed, Smith of Maryland, Sumter, and Turner. NAYS.--Messrs. Goodrich, Hillhouse, Lloyd, and Pickering. MONDAY, December 18. JOHN SMITH, from the State of New York, attended. THURSDAY, December 21. JOSEPH ANDERSON, from the State of Tennessee, attended. TUESDAY, December 26. JESSE FRANKLIN, from the State of North Carolina, attended. THURSDAY, December 28. CHARLES TAIT, appointed a Senator by the Legislature of the State of Georgia, in the place of John Milledge, resigned, produced his credentials; which were read, and, the oath prescribed by law having been administered to him, he took his seat in the Senate. TUESDAY, January 2, 1810. JAMES A. BAYARD, from the State of Delaware, attended. THURSDAY, January 4. JENKIN WHITESIDE, from the State of Tennessee, attended. FRIDAY, January 12. ALEXANDER CAMPBELL, appointed a Senator by the Legislature of the State of Ohio, in place of Edward Tiffin, resigned; and CHRISTOPHER G. CHAMPLIN, appointed a Senator by the Legislature of the State of Rhode Island, in the place of Francis Malbone, deceased; severally produced their credentials, which were read. And the oath prescribed by law having been administered to them, they took their seats in the Senate. TUESDAY, January 23. _Naval Armament._ The Senate resumed the third reading of the bill authorizing the fitting out, officering, and manning, the frigates belonging to the United States. THURSDAY, February 1. The PRESIDENT communicated a letter from the Governor of the State of Kentucky, enclosing a certificate of the appointment of HENRY CLAY a Senator of the United States, in place of Buckner Thruston, resigned. And the certificate was read, and ordered to lie on file. MONDAY, February 5. HENRY CLAY, appointed a Senator by the Legislature of the State of Kentucky, in the place of Buckner Thruston, attended, and the oath prescribed by law having been administered to him, he took his seat in the Senate. THURSDAY, February 22. _Non-Intercourse._ Mr. GILMAN, from the committee, reported the amendments to the bill, entitled "An act respecting the commercial intercourse between the United States and Great Britain and France, and for other purposes," correctly engrossed; and the bill was read the third time as amended. Mr. CLAY.--Mr. President: At all times embarrassed when I have ventured to address you, it is with peculiar diffidence I rise on this occasion. The profound respect I have been taught to entertain for this body, my conscious inadequacy to discuss, as it deserves, the question before you, the magnitude of that question, and the recent seat I have taken in this House, are too well calculated to appall, and would impel me to silence if any other member would assume the task I propose attempting. But, sir, when the regular troops of this House, disciplined as they are in the great affairs of this nation, are inactive at their posts, it becomes the duty of its raw militia, however lately enlisted, to step forth in defence of the honor and independence of the country. I voted yesterday against the amendment offered by the gentleman from Maryland, because, while that vote did not pledge me for the ultimate passage of the bill, it would have allowed me to give it my support if no better proposition was tendered. I do not like the bill as sent from the House of Representatives. It was a crazy vessel, shattered and leaky; but it afforded some shelter, bad as it was. It was opposition to the aggressive edicts of the belligerents. Taken from us without a substitute, we are left defenceless, naked, and exposed to all the rage and violence of the storm. Sir, have we not been for years contending against the tyranny of the ocean? Has not Congress solemnly pledged itself to the world not to surrender our rights? And has not the nation at large in all its capacities of meetings of the people, State, and General Government, resolved to maintain at all hazards our maritime independence? Your whole circle of commercial restrictions, including the non-importation, embargo, and non-intercourse acts, had in view an opposition to the offensive measures of the belligerents, so justly complained of by us. They presented _resistance_--the _peaceful_ resistance of the law. When this is abandoned without effect, I am for resistance by the _sword_. No man in the nation wants peace more than I; but I prefer the troubled ocean of war, demanded by the honor and independence of the country, with all its calamities and desolation, to the tranquil and putrescent pool of ignominious peace. If we can accommodate our differences with one of the belligerents only, I should prefer that one to be Britain; but if with neither, and we are forced into a selection of our enemy, then am I for war with Britain, because I believe her prior in aggression, and her injuries and insults to us were atrocious in character. I shall not attempt to exhibit an account between the belligerents of mercantile spoliations inflicted and menaced. On that point we have just cause of war with both. Britain stands pre-eminent in her outrage on us, by her violation of the sacred personal rights of American freemen, in the arbitrary and lawless imprisonment of our seamen, the attack on the Chesapeake--the murder, sir. I will not dwell on the long catalogue of our wrongs and disgrace, which has been repeated until the sensibility of the nation is benumbed by the dishonorable detail. But we are asked for the means of carrying on the war, and those who oppose it triumphantly appeal to the vacant vaults of the Treasury. With the unimpaired credit of the Government invigorated by a faithful observance of public engagements, and a rapid extinction of the debt of the land, with the boundless territories in the west presenting a safe pledge for reimbursement of loans to any extent, is it not astonishing that despondency itself should disparage the resources of this country? You have, sir, I am credibly informed, in the city and vicinity of New Orleans alone, public property sufficient to extinguish the celebrated deficit in the Secretary's report. And are we to regard as nothing the patriotic offer so often made by the States, to spend their last cent, and risk their last drop of blood, in the preservation of our neutral privileges? Or, are we to be governed by the low, grovelling parsimony of the counting room, and to cast up the actual pence in the drawer before we assert our inestimable rights? It is said, however, that no object is attainable by war with Great Britain. In its fortunes, we are to estimate not only the benefit to be derived to ourselves, but the injury to be done the enemy. The conquest of Canada is in your power. I trust I shall not be deemed presumptuous when I state that I verily believe that the militia of Kentucky are alone competent to place Montreal and Upper Canada at your feet. Is it nothing to the British nation; is it nothing to the pride of her Monarch, to have the last of the immense North American possessions held by him in the commencement of his reign wrested from his dominion? Is it nothing to us to extinguish the torch that lights up savage warfare? Is it nothing to acquire the entire fur trade connected with that country, and to destroy the temptation and the opportunity of violating your revenue and other laws? War with Great Britain will deprive her of those supplies of raw materials and provisions which she now obtains from this country. It is alleged that the non-intercourse law, constantly evaded, is incapable of execution. War will be a non-intercourse, admitting of but partial elusion. The pressure upon her, contemplated by your restrictive laws, will then be completely realized. She will not have the game, as she will if you press this bill without an efficient system, entirely in her own hands. The enterprise and valor of our maritime brethren will participate in the spoils of capture. Another effect of war will be, the reproduction and cherishing of a commercial spirit amongst us. Is there no danger that we shall become enervated by the spirit of avarice, unfortunately so predominant? I do not wish to see that diffusive military character, which, pervading the whole nation, might possibly eventuate in the aggrandizement of some ambitious chief, by prostrating the liberties of the country. But a certain portion of military ardor (and that is what I desire) is essential to the protection of the country. The withered arm and wrinkled brow of the illustrious founders of our freedom are melancholy indications that they will shortly be removed from us. Their deeds of glory and renown will then be felt only through the cold medium of the historic page. We shall want the presence and living example of a new race of heroes to supply their places, and to animate us to preserve inviolate what they achieved. Am I counting too much on the valor of my countrymen, when I indulge the hope, that, if we are forced into war, the American hero now lives, who, upon the walls of Quebec, imitating his glorious example, will avenge the fall of the immortal Montgomery? But we shall, at least, gain the approbation of our own hearts. If we surrender without a struggle to maintain our rights, we forfeit the respect of the world, and (what is worse) of ourselves. We are often reminded that the British navy constitutes the only barrier between us and universal dominion. When resistance to Britain is submission to France, I protest against the castigation of our colonial infancy being applied in the independent manhood of America. I am willing, sir, to dispense with the parental tenderness of the British navy. I cannot subscribe to British slavery upon the water, that we may escape French subjugation on land. I should feel myself humbled, as an American citizen, if we had to depend upon any foreign power to uphold our independence; and I am persuaded that our own resources, properly directed, are fully adequate to our defence. I am therefore for resisting oppression, by whomsoever attempted against us, whether maritime or territorial. Considering then that the bill as amended in this House, in furnishing no substitute for the law of non-intercourse, which it repeals, nor the proposition of the other House, intended to take its place, is a total dereliction of all opposition to the edicts of the belligerents, I cannot vote for it in its present form. I move a recommitment of the bill to supply this defect. What ought to be the substitute, I confess I have not satisfied myself--not expecting that it would fall to my lot to make you this motion. The committee, however, can deliberate upon the subject, and propose one. I would suggest two for consideration--either a total non-importation, which our laws can doubtless enforce, or to arm our merchantmen, and authorize convoys. A day may be fixed, allowing sufficient time for the last effort of the negotiation. That failing, our merchants then to be permitted to arm, and to receive all the protection by convoys which the public vessels can give. This latter measure may lead to war, but it is not war. Our neutral rights are violated by the belligerents. Each places our commerce under restrictions, not warranted by the law of nations. We must then submit, or protect it. Whilst we confine ourselves within the pale of that law, neither has a right to complain. When so armed, and pursuing our lawful destination, let those who attempt to molest us take to themselves the consequences of their own violations. On our part, a war thus produced will be a war of defence. But, Mr. President, if, after all our deliberation, it shall be deemed unwise to adopt either of these expedients, perhaps some other unexceptionable course may occur. I insist that you do not return the bill to the other branch of the Legislature in its present form. They have sent you a measure, I acknowledge, weak; it is, however, not submission. It professes to oppose (in form, at least) the injustice of foreign Governments. What are you about to do--to breathe vigor and energy into the bill? No, sir; you have eradicated all its vitality, and are about to transmit back again the lifeless skeleton. I entreat the Senate to recollect the high ground they occupy with the nation. I call upon the members of this House to maintain its character for vigor. I beseech them not to forfeit the esteem of the country. Will you set the base example to the other House of an ignominious surrender of our rights, after they have been reproached with imbecility, and you extolled for your energy? But, sir, if we could be so forgetful of ourselves, I trust we shall spare you the disgrace of signing with those hands, so instrumental in the Revolution, a bill abandoning some of the most precious rights which it then secured. The motion of Mr. CLAY to recommit the bill, for the purpose of amendment, was determined in the negative--yeas 13, nays 20, as follows: YEAS.--Messrs. Bradley, Brent, Campbell, Clay, Condit, German, Mathewson, Meigs, Parker, Pope, Robinson, Sumter, and Whiteside. NAYS.-Messrs. Anderson, Bayard, Champlin, Crawford, Franklin, Gaillard, Gilman, Goodrich, Gregg, Hillhouse, Horsey, Lambert, Leib, Lloyd, Pickering, Reed, Smith of Maryland, Smith of New York, Tait, and Turner. On the question, Shall this bill pass as amended? it was determined in the affirmative--yeas 26, nays 7, as follows; YEAS.--Messrs. Anderson, Bayard, Brent, Campbell, Champlin, Crawford, Franklin, Gaillard, Gilman, Goodrich, Gregg, Hillhouse, Horsey, Lambert, Leib, Lloyd, Mathewson, Meigs, Pickering, Reed, Smith of Maryland, Smith of New York, Sumter, Tait, Turner, and Whiteside. NAYS.--Messrs. Bradley, Clay, Condit, German, Parker, Pope, and Robinson. So it was resolved that this bill pass with amendments. On motion, by Mr. SMITH of Maryland, it was agreed that the title of the bill be amended, to read as follows: "An act to interdict the public ships and vessels of France and Great Britain from the ports and harbors of the United States, and for other purposes." WEDNESDAY, February 28. The VICE PRESIDENT being absent, the Senate proceded to the election of a President _pro tempore_, as the constitution provides, and the honorable JOHN GAILLARD was appointed. _Ordered_, That the Secretary wait on the President of the United States, and acquaint him that the Senate have, in the absence of the Vice President, elected the Honorable JOHN GAILLARD President of the Senate _pro tempore_. TUESDAY, March 6. _Non-Intercourse._ The Senate resumed the resolution of the House of Representatives disagreeing to their amendments to the bill, entitled "An act respecting the commercial intercourse between the United States and Great Britain and France, and for other purposes." The question pending, when the Senate adjourned yesterday, was on adherence to their amendments to the bill. Mr. ANDERSON observed that, when he had made the motion yesterday to _adhere_, he had done it under the impression that it was proper to bring the subject to a conclusion, and because he believed the interest of the country required that it should be finally acted on. He said he was still impressed with that idea; but, paying a deference to the opinion of his friends, desiring also to treat the House of Representatives with the respect due to that body, and because it was more conformable to the rules of proceeding generally observed, he withdrew the motion to _adhere_, and moved to _insist_ on the amendments. He said he should, by parliamentary practice, have been fully justified in the motion to adhere before insisting. But it was proper that the two Houses of Congress should be courteous in their conduct to one another, and the state of affairs at present peculiarly required it; he therefore varied his motion. The question was then taken to _insist_, and carried without a division. Mr. ANDERSON then moved to appoint a committee of conference, to confer on the subject with such committee as should be appointed by the House of Representatives.--Agreed to. Messrs. ANDERSON, LEIB, and SMITH of Maryland, were accordingly appointed on the part of the Senate. THURSDAY, March 8. _Demands upon Great Britain--Reprisal._ Mr. LEIB submitted the following resolutions: "_Resolved_, That the President of the United States be required to instruct our Minister at the Court of Great Britain to demand of the British Government an immediate compliance with the arrangement made by their Minister, Mr. Erskine, with this Government, comprising atonement for the attack upon the frigate Chesapeake, and a relinquishment of the Orders in Council; and that, on failure to execute that arrangement, our Minister be directed forthwith to return to the United States. "_Resolved_, That the President of the United States be required to instruct our Minister at the Court of Great Britain to demand of the British Government an immediate release of all American citizens impressed into the British service, and that, on failure or refusal to make such release, our Minister be directed forthwith to return to the United States. "_Resolved_, That, on the failure or refusal of the Government of Great Britain, after demand made by our Minister to carry into effect the arrangements made by Mr. Erskine, the British Minister, or, on the refusal or failure to release all American citizens impressed into the British service, the President of the United States be authorized to issue letters of marque and reprisal against the ships and vessels belonging to the Government and subjects of Great Britain." MONDAY, March 12. _Withdrawal of Resolutions._ Mr. LEIB, on request, had leave to withdraw his resolutions submitted for consideration on the 8th inst. Mr. LEIB remarked that he had submitted the resolutions upon the table of the Senate under a conviction that the honor and interests of the nation required such a course of measures. He believed that it was time to have done with trifling, with a war of words, and with what had been termed _gasconade_; that the cup of expedients had been drained to the last dregs, and that a new mode of warfare became indispensable, to vindicate our honor and assert our rights. His impressions were, that a determined attitude alone could rescue us from the oppressor's wrong, awaken a sense of justice, or lead to that necessary alternative which an injured nation is sometimes obliged to resort to, to avoid greater calamity. He said that he was no friend to war--that peace was the first wish of his heart--but that he could not consent to preserve it by a prostitution of the attributes of freemen. Insult, robbery, and murder, cried aloud for justice or for vengeance; and duty requires of him the aid of his feeble efforts to rescue the nation from degradation. He remarked, that the resolutions were directed against one of the belligerents only, and he would assign his reasons for the discrimination, and why he had selected Great Britain for their object. It had been admitted that we had a right to choose our enemy, and Great Britain was selected, because she was first in the career of maritime despotism, and had exercised it with unrelenting severity; because she stands alone in the impressment of our citizens, and dooms them to ignominious punishment, or compels them to fight her battles; because the national honor had been vitally wounded, in the attack upon our flag; and because she had heaped outrage upon aggression, and had imbrued her hands in the innocent blood of our citizens. Since the resolutions were offered, he further remarked, the aspect of things seemed to be somewhat varied, and a hope is entertained, from the advices received, that a change of attitude may be rendered unnecessary; and that, under present circumstances, such change is inexpedient, and may prove injurious. However skeptical he might be on this subject, he had no wish to embarrass the Administration in its negotiations; but, on the contrary, he wished to give full scope to any efforts for an amicable adjustment of our differences. He wished not to throw in a cloud to intercept that glimpse which was supposed to be breaking upon us. His enmities, he said, were national, and would cease with the cause of excitement. Under these impressions, and in deference to the judgment of political as well as personal friends, to whose opinions he was always ready to render a willing homage, he said that he would withdraw the resolutions, reserving to himself the right to renew them under other circumstances. MONDAY, March 19. _Non-Intercourse._ The Senate resumed the consideration of the report of the managers at the conference on their part, on the bill, entitled "An act respecting the commercial intercourse between the United States and Great Britain and France, and for other purposes." On motion, by Mr. CLAY, to postpone the further consideration thereof until to-morrow, it was determined in the negative. And the question recurring on the original motion-- Mr. S. SMITH said: Mr. President, the question before the Senate is, to adhere to their amendments made to the bill "respecting the commercial intercourse between the United States and Great Britain and France." It is with extreme reluctance that I rise on the present occasion. I feel, sensibly feel, the situation in which I place myself by opposing a measure countenanced by the vote in the other House, of almost all those with whom I have been accustomed to act, and by many in the Senate, for whose superior judgment and correct opinions I have ever had the highest respect. Finding, however, that I differed with those gentlemen, I took the bill to my lodgings, and considered it with a disposition to find in it something that should induce me to give up my own opinion to that expressed by the vote in the other House; but I looked in vain, and I found myself compelled to take the ground of opposition to the bill. In doing this, I must hope for the indulgence of those with whom I differ, and of the Senate, for detailing the reasons for the motion I made to amend the bill. To do this, it may not be unprofitable to take a review of the causes that led to the measures adopted by the United States, and the course taken by Congress to resist the injuries imposed upon us by Great Britain and France. The insult offered to the honor of the nation in the affair of the Chesapeake, so far from being redressed, was heightened by a proclamation from the King of Great Britain, authorizing publicly, in the face of the world, the boarding of our merchant ships, and taking therefrom whomsoever their officers should call a British subject; to palliate this outrage on our independence, it was recommended to the boarding officer to execute this indignity with politeness. About the same time the Government was informed of the case of the Horizon, condemned under the Berlin decree, and that the Emperor had determined that that decree should embrace Americans as well as other neutrals. This determination was directly contrary to the assurance given General Armstrong, by the French Minister of Marine, as well as to the practice under the decree. This was the first intimation given to our Government that the Berlin decree would operate on the interest of the United States. The President (as was his duty) laid both of those subjects before Congress in a Message, and it was well known at the same time, (although not officially,) that the British Order of Council of November had been issued. What was then our situation with those nations? France had declared every American vessel that was bound to or from Great Britain, or having on board goods, the produce or manufacture of Great Britain, to be lawful prize. Great Britain declared that every American vessel bound to any port of Europe, should first come into her ports, there land her cargo, pay a transit duty, and depart (if they pleased) to their original port of destination; and any vessel failing to do so, should be liable to condemnation; that any American vessel having a certificate of origin on board, should be considered good prize. Thus situated, we had a choice of war or embargo. To make war on France would have been idle; we could inflict no wound on her by war, except that of withholding our supplies from her West and East India colonies, and this would as effectually be done by an embargo. In a war with England, we could inflict severe wounds on her immense commerce, and she is always vulnerable on the side of Canada. A more pacific system was however adopted--_the embargo_. Had that measure been rigidly enforced, it could not have failed to have compelled a removal of the unjust conduct of those nations, most certainly of that of Great Britain. The Senate, aware that a measure of that kind could not be enforced without a physical force, sensible that the prospect of profit would induce many to prevent its intended operations by evasions, did immediately pass a bill authorizing the President to fit out and put to sea all the armed vessels of the United States, for the purpose of preventing evasions of the law, to employ our seamen who were thrown idle, and to be prepared for events should a war ensue. The bill slept in the other House, and, by an ill-timed economy, was ultimately rejected, by which a free scope was given to evaders of the law, and the system (which was a wise one) was in some degree frustrated; yet it had an effect highly salutary on Great Britain, it compelled her to modify the Orders of Council of November, and no longer were our ships compelled to go into her ports, and there pay tribute; no longer were our vessels subjected to condemnation for having a certificate of origin on board. The embargo was severely felt by Great Britain while in force, every article which they had been accustomed to receive from us rose immediately in price, and I am confident that had it been continued and executed, full satisfaction would have been given by Britain for the various outrages which had been committed on our honor and independence. It was relinquished, and a non-intercourse was substituted as to both nations. This measure, although less strong, was such as would have been very severely felt by the British nation. It completely excluded the importation of her manufactures into the United States; it took from her a market for more than one-half of her manufactures; it turned idle a large number of workmen, and although it did not prevent her from getting our productions, yet she obtained them in such a way, that they cost her, in some instances, double their usual price. This new system was however checked in its course by the arrangement made with Great Britain through Mr. Erskine. Our ports were thrown open, and our vessels (then nearly all in our harbors) soon filled Great Britain with every thing she wanted at low prices; flour fell instantly in England to nine and a half and ten. dollars the barrel. Great Britain, in lieu of the Orders of Council, excluded us from France and Holland, and their colonies, and from Italy, by a paper blockade; an iniquitous, illegal system, which she had adopted in 1793, and has either contracted or extended at her pleasure ever since. Our own law excluded us from France and Italy. This tended to give a direction to a great proportion of our trade to Great Britain, and thereby completely supplied her wants. On the disavowal of Mr. Erskine's arrangement, the non-intercourse was renewed, and a stop put to our exports to Great Britain; the consequence was, that flour rose immediately to fourteen and fifteen dollars in England; cotton, tobacco, and other articles, in a proportion still greater. I mention this to show, that whenever we stop our trade to Great Britain she feels it sensibly in the high prices she has to give for our exports, and thus to show the efficacy of the system that had been taken, if it had been duly executed. But in her exports Great Britain felt little, for our merchants had given their orders under the arrangement, and it would have been unjust to have prevented them from receiving the goods they had ordered; the non-importation part, which I conceive the most essential part of the non-intercourse, had in consequence been inoperative. What, then, was our situation when Congress met? The French privateers were capturing our defenceless merchant ships, burning those of little value, and carrying into their ports for condemnation those which were valuable. Great Britain had, by a pretended blockade, excluded us from entering the ports of Holland, France, Italy, and their West and East India colonies. She had sent a Minister to succeed Mr. Erskine, who, so far from offering any explanations on the disavowal of the arrangement made with his predecessor, added insult to injury, and bearded us to our teeth; he gave us to understand that the terms proposed in the instructions to Mr. Erskine would be insisted on--terms that I am confident no citizen of the United States would accede to. In this state of our foreign relations Congress met, the members brought with them the feelings of the people, who were all alive to the late indignity offered their Government, all expected that measures of energy would be pursued. This House felt and acted. Resolutions passed almost unanimously, expressive of their sense of the insult offered by the British Minister. The Senate passed a bill ordering the whole of the vessels of war to be put in commission, (which bill sleeps still in the other House,) and were progressing in preparations for the defence of the honor and safety of the nation, when the bill now under consideration was reported by the Committee of Foreign Relations. It operated instantly like an electric shock, it paralyzed every effort, and gentlemen were astonished when they were told that this bill was the great measure that was to preserve our honor in the eyes of all the world; that it was the grand panacea which was to heal the wounds that had been inflicted on our rights by the belligerents. In fact, it was the only measure on which we were to rely for a redress of all our grievances. Mr. President, I read this grand effort with attention. In vain did I look for something therein that would tend to obtain satisfaction for the insult on the Chesapeake; in vain for any thing that would tend to prevent the future impressment of our seamen; in vain for any thing that would induce or coerce the belligerents to repeal their unjust orders and decrees against our lawful commerce. One great feature, and one only, was to be discovered, to wit: the repeal of the non-intercourse law--covered by a thin veil, composed, as the gentleman from Kentucky (Mr. CLAY) has said, of shreds and patches. Not so, Mr. President; if it had been patchwork alone, I should not have disturbed its arrangement. But I found in it, or believe I did, that which would be ruinous to the commerce of the United States, and therefore felt myself bound by the duty I owe to my constituents to remove the veil, and leave the measure open to public view; the Senate concurred with me in opinion, to wit: to strike out the injurious sections, to which opinion I shall vote to adhere. I have been asked, shall Congress rise and do nothing? I answer, that it is better to do nothing than to do that which will only injure ourselves. But, sir, I wished to do something; I proposed, in select committee, to strike out those sections which would only do us injury, and then fill their place with sections (which I had draughted and presented for consideration) authorizing the arming of the merchant ships, not for defence alone, but with authority to capture and make prize of any vessel that might assail them while engaged in lawful commerce, and to employ the public ships of war in convoying the trade of the nation. I met with no support in this system; there were in committee four against my motion. Discouraged by so large a proportion voting against me, I neglected, or was deterred from making the same motion in Senate, and this error I regret, although I know not whether I should have been more successful in Senate than I had been in committee; but I should have been better pleased with my own conduct. I had, it is true, an expectation that, in a committee of conference between the two Houses, that something might be introduced that would please both branches of the Legislature; and I presumed that the convoy system would be substituted. I have been mistaken. The conferees met, and the committee of Senate submitted a section, "authorizing the President, under his instructions, made conformably to the laws of nations, to grant convoy to the merchant ships of the United States engaged in lawful commerce." That proposition spoke this language to the belligerents: The United States have taken every pacific means of obtaining justice from you without success. We will no longer deprive ourselves of commerce; we will open our trade, and we will defend it. We are ready to meet the consequences that may arise, and will stand prepared for war, if war shall ensue. This, Mr. President, appeared to your committee as a course that would be honorable to the nation. It was unanimously rejected by the committee on the part of the House, who, in turn, proposed that "British ships should be permitted to bring into the United States the produce and manufactures of that nation, but should not be permitted to carry from the United States any of the produce thereof," and the same as to France. This most extraordinary proposition was unanimously rejected by the conferees on the part of the Senate. Strip the proposition, and what language does it speak? That the British merchant may send into your ports his ships and fill your market with British goods, to the great injury of your infant manufactories; he may enter into competition with them and work their destruction. But he must not enter into competition with the merchants in the purchase of a return cargo, nor with the ship owners in the carrying of the produce of the country. No, sir, that was hallowed ground, and must not be trodden. The conferees of the two Houses could not agree, and the question now before the Senate is, to adhere to their amendments. For which I shall vote, although the bill will then not be such as I wish it had been. But, sir, it cannot in this stage be amended. I am aware that my vote will be disapproved by many of my friends. But, sir, I trust that time, and a further consideration of the subject, will convince them that my objections to the rejected sections have not been unfounded. The question being then taken that the Senate adhere to their amendments, it was determined in the affirmative--yeas 17, nays 15, as follows: YEAS.--Messrs. Anderson, Bayard, Champlin, Gaillard, German, Gilman, Goodrich, Gregg, Hillhouse, Horsey, Leib, Lloyd, Parker, Pickering, Smith of Maryland, Sumter, and Whiteside. NAYS.--Messrs. Bradley, Brent, Campbell, Clay, Condit, Crawford, Franklin, Giles, Lambert, Mathewson, Meigs, Pope, Smith of New York, Tait, and Turner. THURSDAY, March 22. _National Bank._ Mr. BAYARD, from the committee appointed on the subject the thirteenth instant, reported a bill making provision for the establishment of a National Bank; and the bill was read and passed to a second reading. [The bill was for a new bank of 30 millions capital, the subscription for shares open to every citizen of the United States or of its Territories, to copartnerships composed of such citizens or body politic incorporated within the United States, to the amount of 1000 shares.] WEDNESDAY, April 4. _Bank of the United States._ The PRESIDENT laid before the Senate the following report of the Secretary of the Treasury, made in pursuance of the resolution of the Senate of the 2d instant: TREASURY DEPARTMENT, _April 3, 1810_. SIR: I have the honor to transmit a report, prepared in obedience to the resolution of the Senate of yesterday. I have the honor to be, &c., ALBERT GALLATIN. _To the honorable the President of the Senate_: The Secretary of the Treasury, in obedience to the resolution of the Senate, of the 2d instant, respectfully reports-- That the statement annexed to the report made to the Senate on the 2d day of March, 1809, contained all the dividends made by the Bank of the United States, from its establishment to the date of the report, as stated to the Treasury by the bank. That the annexed table, (A,) being a transcript of the above-mentioned statement, with the addition of the dividends made on the 1st day of July, 1809, and on the first day of January last, embraces not only the semi-annual dividends of 4 per cent., but also all the extra dividends which are within the knowledge of this Department, and which, it is believed, have ever been made by the bank; making, in the whole, an average of 8 13-36 per cent. a year. That there remained to the credit of the bank, after payment of the dividend made on the first day of January last, a surplus of $409,410, consisting of two items, viz: $125,000, designated by the name of "General Bank Estate," intended as an offset against decay and presumed loss, in case of sale of the real estate of the bank--that estate having been paid for from the capital stock, and not from the profits of the bank; and $284,410, designated by the name of "Contingent Fund," intended in the first place to cover losses arising from bad debts, not yet actually lost; and the residue of which, if any, will be applicable to another extra dividend. That the nominal profit resulting to the bank, from each of its offices of discount and deposit, could not be ascertained without an investigation of all the weekly returns made to this Department; and that there are no returns from which the actual loss sustained by each office can be known. But, that the statement (B) shows the permanent capital given to each office of discount and deposit; the balance due in account current by the offices of the bank, (exclusive and in addition to the said permanent capital,) on the 27th day of March last; the amount of the notes actually discounted and due to the bank by the last returns, specifying the amount discounted at Philadelphia, and at each office respectively; and an estimate of the gross amount of the annual expenses and losses of the bank, including its several offices, by which it appears that the annual expenses, being about $125,000 a year, the ascertained losses must in the whole have amounted to about $35,000 a year. All which is respectfully submitted. ALBERT GALLATIN. _Dividends on United States Bank Stock._ ========================================== No. | Date. | Rate p. ct. -------+-----------------+---------------- 1 | July, 1792 | 4 2 | January, 1793 | 4 3 | July, " | 3-5/8[7] 4 | January, 1794 | 3-7/8[7] 5 | July, " | 4 6 | January, 1795 | 4 7 | July, " | 4 8 | January, 1796 | 4 9 | July, " | 4 10 | January, 1797 | 4 11 | July, " | 4 12 | January, 1798 | 5[8] 13 | July, " | 4 14 | January, 1799 | 4 15 | July, " | 4 16 | January, 1800 | 4 17 | July, " | 4 18 | January, 1801 | 6[8] 19 | July, " | 4 20 | January, 1802 | 4-1/2[8] 21 | July, " | 4-1/2[8] 22 | January, 1803 | 4-1/2[8] 23 | July, " | 4 24 | January, 1804 | 4-1/2[8] 25 | July, " | 4 26 | January, 1805 | 4 27 | July, " | 4 28 | January, 1806 | 4 29 | July, " | 4 30 | January, 1807 | 6[8] 31 | July, " | 4 32 | January, 1808 | 4 33 | July, " | 4 34 | January, 1809 | 4 35 | July, " | 4 36 | January, 1810 | 4 ========================================== _Statement of the capital of the several branches, and of the Bank of the United States, and of the amount of discounts by the last received returns._ =================================================== Cities, &c. | Capital. | Amt. of notes | | discounted =================================================== Boston | $700,000 | $998,859 New York | 1,800,000 | 4,175,874 Baltimore | 600,000 | 1,349,550 Washington | 200,000 | 485,285 Norfolk | 600,000 | 880,170 Charleston | 600,000 | 1,409,916 Savannah | 500,000 | 1,054,113 New Orleans | 300,000 | 611,517 Philadelphia-- | | Balance due the | | bank, in account | | current, by the | | offices $750,000 | | Cap. res'd 3,950,000 | | --------- | 4,700,000 | |-------------| | $10,000,000 | Funded debt | -- | 1,411,620 | |------------- | | $16,949,497 =================================================== _Estimate of the expenses and losses of the Bank._ Six per cent, on $17,000,000, estimated as per above, as the amount usually loaned on interest, is, per annum, $1,020,000--to wit: Dividend of 8 13-36 per cent. a year, on ten millions of $836,111 dollars actually paid to the stockholders, is, per annum Undivided surplus on the 1st January, 1810, $409,410, 22,745 divided by 18 years, would be equal to an annual dividend of Leaving for the estimated annual amount of expenses and 161,144 losses ----------- Total $1,020,000 =========== TUESDAY, April 10. _The Mississippi River Pirate, Mason._ Mr. CLAY presented the petition of Elisha Winters, stating that, in the years 1801, 1802, and 1803, the wilderness from Natchez to Kentucky, and the river Mississippi, was infested by a notorious gang of highway robbers, headed by a certain Samuel Mason, and that the petitioner was the means by which the said Mason was killed, two of his accomplices apprehended and executed, and the remainder of the banditti dispersed, and praying he may be allowed the reward offered for the apprehension of the said Mason by the President of the United States, or by the then Governor of the Mississippi Territory; and the petition was read, and referred to a select committee, to consider and report thereon; and Messrs. CLAY, WHITESIDE, and CRAWFORD, were appointed the committee. The Senate resumed, as in Committee of the Whole, the bill for the establishment of a Quartermaster's department; and it was agreed that the further consideration thereof be postponed until to-morrow. TUESDAY, April 17. The VICE PRESIDENT being absent, the Senate proceeded to the election of a President _pro tem._, as the constitution provides; and the Hon. JOHN GAILLARD was elected. _Ordered_, That the Secretary wait on the President of the United States, and acquaint him that the Senate have, in the absence of the VICE PRESIDENT, elected the Hon. JOHN GAILLARD, President of the Senate _pro tempore_. _Ordered_, That the Secretary make a like communication to the House of Representatives. WEDNESDAY, April 18. _National Bank._ The Senate resumed, as in Committee of the Whole, the bill making provision for the establishment of a National Bank. On motion, by Mr. HILLHOUSE, to strike out the first section of the bill, the Senate was equally divided--yeas 15, nays 15, as follows: YEAS.--Messrs. Brent, Champlin, German, Gilman, Goodrich, Hillhouse, Horsey, Lloyd, Meigs, Pickering, Pope, Reed, Smith of New York, Tait, and Whiteside. NAYS.--Messrs, Anderson, Bayard, Bradley, Clay, Condit, Crawford, Franklin, Gaillard, Giles, Gregg, Lambert, Leib, Smith of Maryland, Sumter, and Turner. So the question was lost. FRIDAY, April 20. _Territory of Orleans._ The Senate resumed, as in Committee of the Whole, the bill to enable the people of the Territory of Orleans to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes; and on motion, by Mr. CLAY, to amend the bill, by adding at the end of the third section the following words: "_Provided further_, That the said convention shall, by an article in the constitution so to be formed, irrevocable without the consent of the United States, provide, that, after the admission into the Union of the said Territory of Orleans as a State, the laws which such State may pass shall be promulgated, and its records of every description shall be preserved, and its written, judicial, and legislative proceedings conducted, in the language in which the laws and the written, judicial, and legislative proceedings of the United States are now published and conducted:" It was determined in the affirmative--yeas 17, nays 12, as follows: YEAS.--Messrs. Bayard, Campbell, Champlin, Clay, Giles, Gilman, Goodrich, Horsey, Lambert, Leib, Lloyd, Meigs, Pickering, Pope, Smith of Maryland, Smith of New York, and Turner. NAYS.--Messrs. Anderson, Bradley, Condit, Crawford, Franklin, Gaillard, German, Gregg, Hillhouse, Reed, Sumter, and Whiteside. WEDNESDAY, April 25. _National Bank._ The Senate resumed, as in Committee of the Whole, the bill making provision for the establishment of a National Bank. And on motion, by Mr. BAYARD, that the further consideration thereof be postponed until the first Monday in December next, it was determined in the affirmative--yeas 17, nays 14, as follows: YEAS.--Messrs. Bayard, Bradley, Brent, Champlin, Crawford, German, Gilman, Goodrich, Hillhouse, Horsey, Lloyd, Pickering, Pope, Reed, Smith of New York, Sumter, and Turner. NAYS.--Messrs. Anderson, Clay, Condit, Franklin, Gaillard, Giles, Gregg, Lambert, Leib, Mathewson, Meigs, Robinson, Smith of Maryland, and Whiteside. THURSDAY, April 26. The Senate resumed, as in Committee of the Whole, the bill, entitled "An act providing for the sale of certain lands in the Indiana Territory, and for other purposes;" and having agreed to the amendments reported by the select committee, the PRESIDENT reported it to the House accordingly; and on the question, Shall this bill be read the third time, as amended? it was determined in the affirmative. Mr. GILMAN, from the committee, reported the bill allowing compensation to Robert Robinson correctly engrossed; and the bill was read the third time; and the blank having been filled with the words _five hundred_-- _Resolved_, That this bill pass, and that the title thereof be "An act allowing compensation to Robert Robinson." The Senate resumed the motion made yesterday on the subject, which was amended and agreed to, as follows: _Resolved_, That the Secretary of the Treasury be directed to lay before the Senate a statement of all claims which have been adjusted and allowed at the Treasury Department, in virtue of the law entitled "An act providing for the settlement of the claims of persons, under particular circumstances, barred by the limitations heretofore established;" and also, a statement of the balances standing in the books of the Treasury against the United States, which are barred by the statute of limitations, together with his opinion whether the said statute can be modified or repealed, as to that or any other description of claims, without subjecting the Government to imposition. Mr. CLAY gave notice that to-morrow he should ask leave to bring in a bill, supplementary to an act, entitled "An act for the punishment of certain crimes against the United States." The bill entitled "An act authorizing a loan of money, for a sum not exceeding the amount of the principal of the public debt reimbursable during the year one thousand eight hundred and ten," was read the second time, and referred to a select committee, to consist of five members, to consider and report thereon, and Messrs. SMITH of Maryland, CRAWFORD, LLOYD, FRANKLIN, and HILLHOUSE, were appointed the committee. _Territory of Orleans._ The Senate resumed, as in Committee of the Whole, the bill to enable the people of the Territory of Orleans to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes; together with the amendments reported thereto by the select committee. On motion, by Mr. HILLHOUSE, to add, at the end of the bill, the following words: "_Provided_, That the several States shall assent thereto, or an amendment to the Constitution of the United States shall authorize Congress to admit said Territory of Orleans into the Union, on the footing of the original States:" It was determined in the negative--yeas 8, nays 20, as follows: YEAS.--Messrs. Champlin, German, Goodrich, Hillhouse, Horsey, Lloyd, Pickering, and Reed. NAYS.--Messrs. Anderson, Brent, Clay, Condit, Crawford, Franklin, Gaillard, Giles, Gilman, Gregg, Lambert, Leib, Mathewson, Meigs, Pope, Smith of Maryland, Sumter, Tait, Turner, and Whiteside. And the report of the select committee having been agreed to, and the bill further amended, the President reported it to the House accordingly. On the question, Shall this bill be engrossed and read a third time as amended? it was determined in the affirmative--yeas 18, nays 9, as follows; YEAS.--Messrs. Anderson, Brent, Clay, Condit, Crawford, Franklin, Gaillard, Giles, Gregg, Lambert, Lloyd, Mathewson, Meigs, Smith of Maryland, Sumter, Tait, Turner, and Whiteside. NAYS.--Messrs. Champlin, German, Gilman, Goodrich, Hillhouse, Horsey, Leib, Pickering, and Reed. MONDAY, April 30. _Barred Claims._ The PRESIDENT communicated the report of the Secretary for the Department of the Treasury, made in pursuance of the resolution of the Senate of the 26th instant, on the subject of claims barred by the statute of limitations; and the report was read, as follows: TREASURY DEPARTMENT, _April 28, 1810_. SIR: I have the honor to transmit a report prepared in obedience to the resolution of the Senate, of the twenty-six instant. I have the honor to be, &c., ALBERT GALLATIN. _To the Honorable the President of the Senate_: The Secretary of the Treasury, in obedience to the resolution of the Senate, of the 26th instant, respectfully reports-- That it appears, by the letter from the Register of the Treasury, herewith transmitted, that the statement of all the claims adjusted and allowed, by virtue of the act, entitled "An act providing for the settlement of the claims of persons under particular circumstances, barred by the limitations heretofore established," cannot be completed before the day contemplated for the adjournment of Congress, but will be prepared so as to be laid before the Senate at the commencement of their next session. That the statement (A) herewith transmitted, exhibits the amount of the balances standing on the books of the Treasury against the United States, which are barred by the statutes of limitation, and arranged under the following heads, viz: Loan Office certificates $90,811 36 Indents for interest on the public debt 64,590 98 Final settlement certificates 23,873 24 Commissioners' certificates 4,304 83 Army commissioners' do. 46,468 97 Credits given in lieu of army commissioners' certificates cancelled 28,674 30 Credits for pay of the army, for which no certificates were ever issued 17,132 11 Invalid pensions 16,635 46 ---------- Amounting together to 292,491 25 ========== That so far as relates to the said balances, which result altogether from accounts actually settled at the Treasury, the statute of limitation can be repealed without subjecting the Government to imposition; but that considering the length of time which has elapsed since the claims have been barred, and the little value on that account affixed to them, the repeal of the statute, unless properly guarded in that respect, may not generally benefit the rightful claimants. And that with the exception of those balances, it is not believed that it would be safe to repeal the statute of limitation in relation to any other general description of claims; although there may be special cases in which, notwithstanding the lapse of time, the proper proofs and checks may still exist, so as to prevent any imposition on the public. All which is respectfully submitted. ALBERT GALLATIN. TUESDAY, May 1. _Barred Claims._ Mr. HILLHOUSE, from the same committee, further reported as follows: _Resolved_, That the Secretary for the Department of the Treasury report to the Senate, at their next meeting, the necessary provisions for guarding the Treasury of the United States from fraud and imposition on the removal of the statute of limitations, in relation to the following claims mentioned in his report of the 28th of April, 1810, viz: 1. Loan office certificates. 2. Indents for interest on the public debt. 3. Final settlement certificates. 4. Commissioners' certificates. 5. Army certificates. 6. Credits given in lieu of Army certificates cancelled. 7. Credits for the pay of the Army, for which no certificates were issued. 8. Invalid pension. Also, how far the statute of limitations may with safety be removed, as to claims for personal services rendered in the Army of the United States, during the Revolutionary war, and the guard and checks necessary and proper to be adopted. And the report was considered and agreed to. _Adjournment._ Mr. CRAWFORD, from the joint committee, reported that they had waited on the President of the United States, who informed them that he had no further communication to make to the two Houses of Congress. _Ordered_, That the Secretary notify the House of Representatives that the Senate, having finished the business before them, are about to adjourn. The Secretary having performed that duty, the President adjourned the Senate without delay. FOOTNOTES: [7] Dividends falling short of the rate of 8 per cent. per annum. [8] Including extra dividends. ELEVENTH CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, November 27, 1809. This being the day appointed by law for the meeting of Congress, the following members of the House of Representatives appeared, and took their seats, to wit: _From New Hampshire_--Daniel Blaisdell, and Nathaniel A. Haven. _From Massachusetts_--Ezekiel Bacon, Richard Cutts, William Ely, Barzillai Gannett, Josiah Quincy, Sam'l Taggart, Charles Turner, jr., Jabez Upham, Joseph B. Varnum, (the Speaker,) and Laban Wheaton. _From Vermont_--William Chamberlin, Martin Chittenden, Jonathan H. Hubbard, and Samuel Shaw. _From Rhode Island_--Richard Jackson. _From Connecticut_--Epaphroditus Champion, Samuel W. Dana, John Davenport, Jonathan O. Mosely, Timothy Pitkin, junior, Lewis B. Sturges, and Benjamin Tallmadge. _From New York_--James Emott, Jonathan Fisk, Thomas R. Gold, Robert Le Roy Livingston, Peter B. Porter, Erastus Root, Ebenezer Sage, Thomas Sammons, John Thompson, and Killian K. Van Rensselaer. _From New Jersey_--Adam Boyd, James Cox, William Helms, Jacob Hufty, Thomas Newbold, and Henry Southard. _From Pennsylvania_--William Anderson, David Bard, Robert Brown, William Crawford, Aaron Lyle, William Milnor, John Porter, John Rea, Matthias Richards, John Smilie, George Smith, Samuel Smith, and Robert Whitehill. _From Maryland_--Charles Goldsborough, John Montgomery, Nicholas R. Moore, Roger Nelson, and Archibald Van Horne. _From Virginia_--Burwell Bassett, James Breckenridge, John Clopton, John Dawson, John W. Eppes, Thomas Gholson, junior, Peterson Goodwyn, John G. Jackson, Joseph Lewis, junior, John Love, Thomas Newton, John T. Roane, John Smith, and James Stephenson. _From North Carolina_--Willis Alston, junior, James Cochran, William Kennedy, Nathaniel Macon, Archibald McBride, Joseph Pearson, Lemuel Sawyer, and Richard Stanford. _From South Carolina_--Lemuel J. Alston, William Butler, Joseph Calhoun, Robert Marion, Thomas Moore, and John Taylor. _From Georgia_--Howell Cobb, and George M. Troup. _From Ohio_--Jeremiah Morrow. _From Kentucky_--Joseph Desha, Benjamin Howard, Richard M. Johnson, and Samuel McKee. _From Tennessee_--Pleasant M. Miller, John Rhea, and Robert Weakley. _From Mississippi Territory_--George Poindexter. _From Indiana Territory_--Jonathan Jennings. _From Orleans Territory_--Julien Poydras. ADAM SEYBERT, returned to serve as a member of this House, for the State of Pennsylvania, in the room of Benjamin Say, resigned, appeared, produced his credentials, was qualified, and took his seat. JONATHAN JENNINGS, returned to serve as a Delegate from the Territory of Indiana, appeared, produced his credentials, was qualified, and took his seat. A quorum, consisting of a majority of the whole number, being present, Mr. GOODWYN and Mr. ROOT were appointed a committee on the part of the House, jointly with such committee as may be appointed on the part of the Senate, to wait on the President of the United States, and inform him that a quorum of the two Houses is assembled, and ready to receive any communications he may be pleased to make to them. TUESDAY, November 28. Several other members, to wit: from New Hampshire, JOHN C. CHAMBERLAIN and JAMES WILSON; from Rhode Island, ELISHA R. POTTER; from Pennsylvania, WILLIAM FINDLAY and DANIEL HEISTER; from Virginia, MATTHEW CLAY and JACOB SWOOPE; and from North Carolina, JOHN STANLEY, appeared, and took their seats in the House. A message from the Senate informed the House that a quorum of the Senate is assembled, and ready to proceed to business. They have appointed a committee on their part, jointly with the committee appointed on the part of this House, to inform the President that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make them. The SPEAKER laid before the House a certificate of the election of ADAM SEYBERT, to serve as a member for the State of Pennsylvania, in the room of Benjamin Say, resigned; which was read, and, together with the certificate of the election of JONATHAN JENNINGS, the delegate from the Territory of Indiana, referred to the Committee of Elections. WEDNESDAY, November 29. Several other members, to wit: from New York, JOHN NICHOLSON; from Maryland, JOHN BROWN; and from Virginia, WALTER JONES, appeared, and took their seats in the House. THURSDAY, November 30. Several other members, to wit: from New Hampshire, WILLIAM HALE; from Massachusetts, GIDEON GARDNER and EZEKIEL WHITMAN; and from New York, VINCENT MATTHEWS, appeared, and took their seats in the House. The SPEAKER laid before the House the following letter, which was read: _Respect for the House._ _To the Speaker of the House of Representatives_: Sir: An occurrence having recently taken place between a member of the House of Representatives and myself, produced by circumstances not at all connected with his official duties or opinions, which from the time and place may be considered disrespectful to the House of Representatives, I take the liberty of tendering through you my most respectful declarations, that I am the last who would wilfully manifest a deficiency of that reverence which is due to the Representatives of my country, or that sacred regard which is also due to their privileges. To yourself, sir, personally, I tender the assurances of my very great respect. I. A. COLES.[9] NOVEMBER 29, 1809. [No order having been taken on it, the letter lies on the table of course.] FRIDAY, December 1. Two other members, to wit: from Virginia, EDWIN GRAY; and from North Carolina, MESHACK FRANKLIN, appeared, and took their seats in the House. _Navigation Laws._ Mr. MACON said he wished early to call the attention of the House to two motions, the object of which he deemed to be very important. The first of them had been formerly submitted to the House by a gentleman from Georgia, (Mr. EARLY) but never acted on, and afterwards by a gentleman from South Carolina, (Mr. D. R. WILLIAMS;) the other had been presented by Mr. MACON himself at the last session, but at so late a period that it had not been acted on. It appeared to Mr. MACON that these motions combined with one submitted at different times by a gentleman from Connecticut, (Mr. DANA,) would form something like a system. The object of the first motion he was about to submit, was to prohibit any foreign vessel from coming from any port or place to which the vessels of the United States could not go. Gentlemen would at once observe that there were many places whence vessels came to this country, to which we cannot go, and would perceive the extent of the motion. The other motion related to sea-letter vessels only. Mr. MACON said he wished to put them out of the nation, and to have no vessels belonging to the United States which were not perfectly American. He would have our vessels wholly American, or they should not at all partake of the character of American vessels. After declaring that he considered his motions as calculated for permanent regulations, Mr. MACON submitted the following resolutions: _Resolved_, That the Committee of Commerce and Manufactures be instructed to inquire into the expediency of prohibiting the entry of any vessel into the United States from any port or place to which a vessel of the United States is not admitted by permanent regulation of the Government owning such port or place by treaty. _Resolved_, That the Committee of Commerce and Manufactures be instructed to inquire into the expediency of authorizing the registering anew of vessels built in the United States, which are owned in whole by citizens of the United States, any disability incurred by such vessel to the contrary notwithstanding; and also into the expediency of forbidding by law sea-letters or any custom-house documents being granted to vessels not registered or licensed according to law, or not owned by citizens of the United States, within a limited time after the passing of such a law. Mr. NEWTON having seconded these motions, Mr. MACON moved to refer them to the Committee of Commerce and Manufactures. Mr. DANA observed that these resolutions had in view merely an investigation by the Committee of Commerce and Manufactures into the subject of them. On such a question it was but necessary to ask whether the subject be of itself interesting, and whether or not the proposition bears on the face of it so much of probability and propriety that there could be no objection to it on the score of its being utterly inadmissible. Unless, therefore, the propositions were utterly inadmissible, if they related to a subject interesting to the nation in time of peace as well as of war, if they had a connection with one great branch of national policy, there could be no objection to have them investigated by a committee. Without expressing any opinion on the first proposition, which embraced a variety of important considerations, Mr. D. said that the motions were recommended to the House by their being founded on permanent principles, to which the nation may adhere in every alternative; and in addition to the attention due to them because they were of a permanent character and not merely temporary expedients, they might contribute to some of those measures of temporary policy deemed proper, and without a possibility of thwarting, might perhaps aid any project the Government might adopt. As to the second resolution, that he considered important in another point of view, as tending to encourage American manufactures. If there be any manufacture which requires great precision of science and experimental skill, any one which embraces more of the profound and elevated principles of science, and requires more dexterity in practical execution than any other, it is the constructing of ships. With these ideas, which Mr. Dana said were not applicable to the merits of the proposition, but to the question of reference, he should vote for referring them. He was extremely glad the motions had been brought forward, and particularly that they had been introduced by a gentleman so well qualified to sustain them, by his character and talents. The motion for referring Mr. MACON'S propositions was carried. [The following gentlemen compose this committee: Messrs. TALLMADGE, CLAY, BUTLER, REA of Pennsylvania, WEAKLEY, HALE, TURNER.] 7. _Resolved_, That so much of the Message of the President of the United States as relates to the finances of the United States, be referred to the Committee of Ways and Means. 8. _Resolved_, That so much of the Message of the President of the United States as relates to the fortifications of the ports and harbors of the United States, be referred to a select committee. [This committee is composed of the following gentlemen: Messrs. CLOPTON, JOHN PORTER, EMOTT, MCKIM, GARDNER, MCBRYDE, and WITHERSPOON.] MONDAY, December 4. Several other members to wit: from Maryland, ALEXANDER MCKIM; from North Carolina, THOMAS KENAN; from South Carolina, ROBERT WITHERSPOON; from Kentucky, HENRY CRIST; and from Georgia, WILLIAM W. BIBB, appeared, and took their seats in the House. _Committee of Manufactures._ Mr. SAWYER asked leave to lay upon the table the following resolution, of a nature similar to one which he had proposed at the last session, which, from the shortness of the session, he presumed, rather than from any unfriendly disposition, never had been acted on: _Resolved_, That a standing committee be appointed, to be called the Committee of Manufactures, whose duty it shall be to take into consideration all such petitions, matters, and things, touching manufactures, as shall be presented, or shall or may come in question and be referred to them by the House, and to report, from time to time, their opinion thereon. Mr. S. said it was certainly too much to expect any one committee to do justice to two such important subjects, becoming daily more so, as those of commerce and manufactures. He wished to have employed on the subject of manufactures the undivided energies of the best talents of the House; he hoped that all the rays of patriotism and genius in the House would be directed to this subject as to a focal point at which they should all converge. How could one committee properly attend to the mass of business before the Committee of Commerce and Manufactures? The subject confided to them could not be acted on, and yet important matters were continually dropping into this gulf of oblivion. This committee, however, did all that could be expected of them; he did not believe that any member of it was hostile to manufactures; he could answer for the chairman, (Mr. NEWTON,) whom he knew to be friendly to manufactures, both from precept and example. It was because it was impossible for the committee to attend to all the business before it, that he offered the resolution. Mr. S.'s motion lies on the table one day, of course, according to the rules of the House. _Violations of Neutral Rights._ Mr. TROUP begged leave to submit to the consideration of the House several resolutions, which had for their object the vindication of the commercial rights of the United States against the belligerent nations of Europe. He submitted them at this time with less reluctance, because the introduction of them was in nowise inconsistent with the most friendly negotiation which might be pending with foreign Governments. It is high time, said Mr. T., in my opinion, that these commercial rights were either vindicated or abandoned. The remnant of commerce, which the joint operation of the belligerent decrees has left to us, is scarcely worth carrying on. To designate what this little is, would be no difficult matter, but it would be superfluous; every one who hears me understands it. But, it would be well to inquire, on what principle the belligerents pretend to justify these commercial restrictions? The avowed principle is retaliation, but is it the true principle? Unquestionably not. And why? Because it is equally asserted by both belligerents. Both cannot be retaliators; one must be the aggressor, the other the retaliator. If this principle, then, be equally urged by both, who is to judge between them? If the alleged principle of retaliation be not the true one, what is? As respects France, the true principle of her decrees is to be sought in the policy of embarrassing England by excluding from the continent British merchandise; and as to Great Britain, the principle of her Orders in Council may be found in the consideration of her interest and her power. She avowedly contends that it is her interest to engross the commerce of the world; that she has the power to engross it, and, therefore, she will engross it. But, what are the principles more specifically asserted by Great Britain? First, the right of blockade by proclamation; second, the right to turn your vessels into her ports to pay duty and take out a license. This right of blockading by proclamation is not a right growing out of a state of war; it is no belligerent right; it is a pretension, as applicable to a state of peace as to a state of war, and if we submit to it in a state of war, we must submit to it in a state of peace. The only principle of blockade which we recognize is that which gives to belligerents a right to turn from ports so closely invested as to make the entry of them dangerous, and after due warning, vessels bound to them. But the right asserted by Great Britain to blockade by a piece of parchment or paper, issued from her Council Chamber, a port or ports, a kingdom or kingdoms, a continent or continents, is a right no more relative to a state of war than to a state of peace; and, if we submit to the pretension in a state of war, we must equally submit to it in a state of peace. It is founded on the most arbitrary tyranny, it goes to the annihilation of your commerce. As to the other right, of forcing our vessels into her ports, to pay duty and take out license, this is equally applicable to a state of peace as to a state of war. We acknowledge the right of Great Britain, or any other nation, to shut her ports against us, provided there be no treaty stipulation to the contrary. But the right of Great Britain or of France to shut the ports of any other nation against us is a right no more appertaining to a belligerent than to a neutral. If we submit to it in war, we must equally submit in peace; and this right, like the other, is founded in the most arbitrary tyranny. What right has Britain to tyrannize on the ocean, and prescribe limits to our trade? She will not permit to us a trade which she cannot herself enjoy; she prohibits to us a trade which our Government permits, because it is her interest to monopolize it. It is equally our interest to monopolize, and, therefore, if you please, sir, we will prohibit the trade which her Government permits, and which it is our interest to monopolize. If Great Britain can rightly prohibit our trade, because it is her interest to prohibit it, have we not the right to prohibit her trade for the same reason? If she, with right and justice, can stop and seize, and confiscate our vessels because they attempt a trade which she forbids, and only because she forbids it, cannot our Government do the same in relation to her trade? If she can turn our vessels into her ports to pay duty and take out license, what prohibits us from doing the same as to her vessels? England is a nation, so are we. England is independent, so are we. What prohibits us from doing to England what England does to us? Unquestionably nothing. To say that we have no right to do to England what England does to us, is to acknowledge our own inferiority; it is to acknowledge that she may demand without limitation, and that we are under obligation to submit without limitation. I am aware that it may be objected to the resolutions that the adoption of them would lead to hostility: but the same objection is equally applicable to any resolution which would go to the vindication of our commercial rights. They ought not to lead to hostility; they are merely retaliatory. They follow the spirit of the British Orders in Council and French decrees, and therefore cannot be complained of by either power. There is a great and profitable commerce, and rapidly increasing, passing not indeed before our doors, but near enough to make the capture of vessels engaged in it convenient to us, which the resolutions have chiefly in view. I allude to the Brazil and Spanish Main trade. Is it not matter of surprise that a commerce so profitable, so extensive, and so convenient, should have been permitted to a Government which permits no commerce to us but what her convenience and her interest suggest? Is it not strange that we should have suffered that Government to participate in a commerce which both our interest and our convenience stimulate us to engross? But, above all, is it not inexplicable that we should passively have suffered the monopoly of it by her, when we ourselves were willing and able to engross it? The House will perceive, on the face of the resolutions, that, as they regard France, they are equivalent to a war measure--neither by a war measure, nor by that which I have the honor to submit, can we come in contact with France; she has no commerce on the ocean. In relation to England it is short, infinitely short, of war; because by war her Continental Colonies would fall; her West India Islands would be distressed, and our privateers would cut up her commerce; but the resolutions propose merely to retort the evils of her own injustice, to do to her what, and no more than what, she has done to us. Reserving for another occasion any further remarks, I beg leave to read the resolutions to the House. Mr. T. then read the following resolutions: _Resolved_, That it is expedient to authorize the President by law to instruct the commanders of the armed vessels of the United States to stop and bring into the ports of the same all ships or vessels with their cargoes, the property of the subjects of the King of Great Britain and of the Emperor of France, bound to ports other than those within the dominions or colonies of either. _Resolved_, That it is expedient further to authorize by law the detention of all ships or vessels, with their cargoes, the property of the subjects of the King of Great Britain, until the duties to be regulated and ascertained by law shall be first levied and collected upon the goods and merchandise whereof the said ships or vessels shall be laden, and until the said ships or vessels shall have received due license to depart. _Resolved_, That it is expedient further to authorize by law the detention of all ships or vessels, with their cargoes, the property of the subjects of the Emperor of France, brought within the ports of the United States, there to abide the final decision or order of the Government in relation to the same. _Resolved_, That an ad valorem duty of ---- be levied and collected on all the goods, wares, or merchandise, of British product or manufacture. _Resolved_, That it is expedient further to authorize the President, on payment of the duties authorized to be levied and collected on the goods laden on board vessels the property of the subjects of the King of Great Britain, forthwith to grant a license to such vessels to depart and to proceed to the port of original destination without further hindrance or molestation. The House having agreed to consider these resolutions-- On motion of Mr. TROUP, they were ordered to lie on the table, as he stated, to give every member the same time to consider them as he had himself taken. TUESDAY, December 5. Two other members, to wit, from Maryland, JOHN CAMPBELL; and from Georgia, DENNIS SMELT, appeared, and took their seats in the House. TUESDAY, December 7. Another member, to wit, from New York, URI TRACY, appeared, and took his seat in the House. _Challenges, Duels, &c._ Mr. BACON said he held in his hands three propositions which deemed it his duty to submit to the House. They were not for the regulation of the great concerns with foreign nations, but for the necessary object of regulating themselves. It would be seen that these resolutions had not grown out of any personal considerations, nor out of any particular case, but out of the serious evils to which the House had been exposed by the want of such regulations from the commencement of the Government. In 1796, the evil had risen to such a height that the House had unequivocally expressed its opinion on it.[10] Mr. B. said he felt it his duty to express his sense on the subject by laying the resolutions on the table, and more particularly as he understood that the subject was now agitated in the committee appointed to draught rules and orders for the government of the House. He would merely remark that the resolutions might not be correct in form, or they might be altogether erroneous in principle. He was not anxious as to the particular form; but he was decidedly in favor of the general object, and wished to take the sense of the House upon it. For himself he was well prepared to act on them; but for the convenience of others he wished them to lie on the table. _Resolved_, That the committee appointed to report on the rules and orders for the government of the House, do report a rule declaring, "That if any member, in the course of debate, shall make use of opprobrious or vilifying language with respect to any member, or call into question the integrity of his motives, or those of either branch of the Government in relation to the discharge of his official duties, except on a motion for impeachment, or for other interposition of the constitutional powers of this House--or apply to either indecorous or reproachful expressions--it shall be deemed a breach of the orders of the House." That said committee be instructed further to report a rule declaring, "That if any member, during the session of Congress, whether of the House or not, shall give or send to any other member during his actual attendance at the seat of Government, a challenge to fight a duel, or if the member so challenged shall accept the same, it shall be deemed a breach of the privileges of the House, as well on the part of such members as on that of any other person whether a member or not, who shall be aiding, abetting, or assisting in giving or sending such challenge, or in carrying the same into effect, and every such member shall be held liable to be expelled from the House therefor." That said committee be further instructed to report a rule declaring, "That if any person, during the session of Congress, whether a member of the House or not, shall commit personal violence or assault upon any member during his actual attendance at the seat of Government, it shall be deemed a breach of the privileges of the House, as well on the part of the person so assaulting, as on that of any other person who shall be aiding, abetting, or assisting therein, and such person, if a member, shall be held liable to be punished therefor, at the discretion of the House." Ordered to lie on the table. FRIDAY, December 8. Two other members, to wit: from Maryland, PHILIP B. KEY, and from Virginia, DANIEL SHEFFEY, appeared, and took their seats in the House. MONDAY, December 11. Several other members, to wit: from Massachusetts, WILLIAM STEDMAN and EDWARD St. LOE LIVERMORE; from New York, BARENT GARDENIER; and from Pennsylvania, JOHN ROSS, appeared, and took their seats in the House. The SPEAKER laid before the House a letter from WILSON C. NICHOLAS, resigning his seat as one of the members of the House, for the State of Virginia. The letter was read, and ordered to lie on the table. _Batture at New Orleans._ A motion was made by Mr. SHEFFEY, that the House do come to the following resolutions: _Resolved_, That provision ought to be made by law to authorize the President of the United States to cause the several persons who were removed from the batture, in front of the suburb St. Mary, in the city of New Orleans, on the 25th January, 1808, to be restored to the possession thereof; to be held with the same right with which they respectively held the same, prior to such removal; any thing to the contrary notwithstanding. _Resolved_, That it is expedient to authorize the President of the United States, if he shall be of opinion that the United States have such a claim to the batture, in front of the suburb of St. Mary, in the city of New Orleans, as will justify the expense of prosecuting the same, with the assent of the persons removed therefrom, on the 25th January, 1808, to name three persons, who shall have full power to hear, and finally determine, all right, title, claim, and demand, whatsoever, as well of the United States as the persons so removed, both in law and equity; and their decision, or a majority of them, shall be binding, as well on the United States as the said parties. _Resolved_, That it is expedient to authorize the President of the United States, if he shall deem it most proper, to compromise the conflicting claims of the United States and the persons removed from the batture of the suburb of St. Mary, in the city of New Orleans, or cause the same to be tried in a court of the United States, in such a manner, and at such place, as will secure an impartial trial. The said resolutions were read, and ordered to lie on the table. _British Minister--Mr. Jackson's Circular._ Mr. QUINCY observed that he perceived that in the letter from Mr. Smith to Mr. Pinkney accompanying the Message from the President of the United States of the 29th November, 1809, an allusion was made to an important paper headed "Circular," which had not been communicated to Congress. He perceived, also, that by the resolution just received from the Senate, a specific declaration was required as to the contents of that very paper. It appeared to him extremely proper that the House should have that paper on its files, and within the reach of its members, before a declaration was made respecting it. Under this impression he offered the following resolution: _Resolved_, That the President of the United States be requested to lay before the House a copy of a paper purporting to be a circular letter from Mr. Jackson to the British Consuls in the United States, referred to in the letter of the Secretary of State to Mr. Pinkney, accompanying the Message of the 29th November. Mr. DANA observed that there was another document which it might be of some importance to have on the file of the House, and which it might be also necessary to consult--that was, the despatch from Mr. Canning, which it appeared was sent by Mr. Pinkney to the Secretary of State. He moved to add that paper to the resolution. Mr. QUINCY accepted the amendment as a part of his resolution. Mr. EPPES asked for a division of the question. He said he was willing to call for any paper which was, or might be presumed to be in possession of the Department of State; but it could not be presumed that the circular of Mr. Jackson was in that office in any other form than that referred to in Mr. Smith's letter, viz: in a printed form. Certain it was that it could not be in the Department of State, because it was dated subsequently to the intimation that no further communication would be received from that source by the Secretary of State. The only reason, he presumed, why the other paper alluded to had not been communicated to Congress, was, that it was a printed paper, purporting to be a despatch from Mr. Canning. He had no further objection to the call for either of these papers, other than it was neither decorous nor proper to call upon the President for that which could not be officially in his possession. Mr. GARDENIER observed that, in addition to other forcible considerations, it would be treating the Executive rudely, when he had called their attention to a particular paper, to go to any other source to procure it; besides that, in the latter case, a spurious copy might be imposed upon the House. If the President referred to a certain document as justifying his conduct, by procuring that document the House would have the whole ground before it. What would be the situation of the House, if, pursuing the ideas of some gentlemen, every member was to bring forward a document which he believed to be the legitimate one, and all these copies should differ? Who was to decide which was the correct one? If the House were to act at all on this subject, it was not only respectful and just to the President, but extremely civil, to inquire of him on what ground he has acted. As a true American, and staunch republican, Mr. G. was desirous to give the President every opportunity of doing himself justice. Mr. QUINCY said that a copy of this circular having been forwarded to our Minister in England, a copy must remain on the files of the Secretary of State's office; and, therefore, he asked for it merely that the House might have on this occasion precisely that information which the Secretary of State had communicated to Mr. Pinkney. The question was taken on the first part of the resolution, viz: on that part moved by Mr. QUINCY, and finally carried--yeas 53, nays 52. The question was then taken on Mr. DANA'S amendment, viz: on that part calling for a copy of the paper purporting to be a despatch from Mr. Canning to Mr. Erskine, and carried without opposition. Mr. WHITMAN offered an amendment understood to be intended to embrace in the papers to be called for, the note from Mr. Erskine to Mr. Smith containing the "three conditions" which are admitted in Mr. Smith's letter of October 19, to have been submitted to him by Mr. Erskine. On the suggestion of Mr. QUINCY, this motion was declared to be out of order, as it was now too late to receive an amendment to the resolution, both clauses of it having been affirmed by the House. The question was then put on the whole resolution, as amended, and the yeas and nays being demanded on its passage. Mr. RHEA said he should vote against the resolution, as by passing it the House could add nothing to its stock of information, nor receive any official document; in both cases it could receive only a printed paper. The question was then decided by yeas and nays, in the affirmative--yeas 69, nays 46. Mr. QUINCY and Mr. DANA were appointed a committee to present the foregoing resolution to the President of the United States. TUESDAY, December 12. Another member, to wit, from Massachusetts, EBENEZER SEAVER, appeared, and took his seat. _Committee of Manufactures._ Mr. SAWYER called for the consideration of the motion submitted by him for appointing a separate Committee of Manufactures. The House agreed to consider the resolution, ayes 68. Mr. SEYBERT supported the motion on the ground of the propriety of paying a more particular attention to the subject of manufactures, which had lately become of great importance. Mr. NEWTON opposed the motion as unnecessary, because the Committee of Commerce and Manufactures was competent to the performance of all the business assigned it, and had always manifested a disposition to foster the manufactures of the United States. The question on the resolution was decided in the negative, 24 members only rising in the affirmative. FRIDAY, December 15. _Mr. Jackson's Circular._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the House of Representatives of the United States_: According to the request of the House of Representatives, expressed in their resolution of the 11th instant, I now lay before them a printed "copy of a paper purporting to be a circular letter from Mr. Jackson to the British Consuls in the United States," as received in a gazette at the Department of State; and also a printed paper, received in a letter from our Minister in London, purporting to be a copy of a despatch from Mr. Canning to Mr. Erskine, of the 23d of January last. JAMES MADISON. DECEMBER 12, 1809. [The first paper enclosed was the "Independent American" of November 21, containing a copy of the "Circular." The second was a piece cut out of a London newspaper.] The circular is as follows: WASHINGTON, _November 13, 1809_. (_Circular_.) SIR: I have to inform you, with much regret, that the facts which it has been my duty to state in my official correspondence with Mr. Smith, have been deemed by the President of the United States to afford a sufficient motive for breaking off an important negotiation, and for putting an end to all communication whatever with me as the Minister charged with that negotiation, so interesting to both nations, and on one most material point of which an answer has not even been returned to an official and written overture. One of the facts alluded to has been admitted by the Secretary of State himself, in his letter to me of the 19th October, viz: that the three conditions forming the substance of Mr. Erskine's original instructions were submitted to him by that gentleman; the other, viz: that that instruction is the only one in which the conditions were prescribed to Mr. Erskine for the conclusion of an arrangement on the matter to which it related, is known to me by the instructions which I have myself received. In stating these facts, and in adhering to them, as my duty imperiously enjoined me to do, in order to repel the frequent charges of ill faith which have been made against His Majesty's Government, I could not imagine that offence would be taken at it by the American Government, as most certainly none could be intended on my part; and this view of the subject has been made known to Mr. Smith. But, as I am informed by him, that no farther communication will be received from me, I conceive that I have no alternative left, which is consistent with the King's dignity, but to withdraw altogether from this city, and to wait elsewhere the arrival of His Majesty's commands upon the unlooked-for turn which has thus been given to his affairs in this country. I mean in the interval to make New York the place of my residence, where you will henceforward please to direct your communications to me, as I shall be accompanied by every member of His Majesty's mission. I am, &c. F. J. JACKSON. On motion of Mr. QUINCY, these papers were ordered to be printed--for the motion 59, against it 40. MONDAY, December 18. Another member, to wit, from New York, HERMAN KNICKERBACKER, appeared, and took his seat in the House. THURSDAY, December 21. _Conduct of the British Minister._ The House again went into Committee of the Whole on the resolution from the Senate. Mr. EMOTT concluded his speech against it, as given entire in preceding pages. Mr. GHOLSON said, that notwithstanding much had already been said on the subject before the committee, he hoped he should be pardoned for occupying a small portion of their attention. The resolution before us seems to embrace several objects pre-eminently entitled to the dispassionate consideration of Congress; objects altogether unconnected with those factions and political dissensions which have unhappily too long prevailed among brethren of the same common family, and which may one day prove fatal to political liberty. The first question which presents itself in the investigation of this subject, involves on the one hand the veracity and dignity of the American Government, and, on the other, the character and reputation of a British Envoy, and, in some degree, of the British Ministry. In my remarks on this subject, I consider it regular to commence with the origin of the mission from Great Britain to the United States; out of which has arisen the present unpropitious posture of the affairs between the two countries. What, sir, were the circumstances under which that mission was despatched here? In the month of May last, it was known to the British Ministry that a commercial arrangement had been made by their Envoy resident here, (Mr. Erskine,) with the American Government, but under the allegation that it was made contrary to instructions, it was no sooner known than it, and the Minister making it, were disavowed. Mr. Jackson was then appointed to substitute Mr. Erskine, the disavowed agent, and at the time he (Mr. Jackson) was sent to this country, it was well known by the British Ministry that the Government of the United States stood solemnly pledged to the American people to maintain, and that they had inviolably and steadily adhered, to certain points and principles in our differences with England, a surrender of, or departure from which, would be a sacrifice of the honor and best interests of this nation. Yes, sir, when they well knew that, in the affair of the Chesapeake, our Executive would not, and the voice of almost the whole nation had pronounced that he ought not to make the first advance to a reconciliation, Mr. Jackson was charged, not only to require the first advance from us, to wit: that in the document which should contain the adjustment of that affair, the revocation of the President's proclamation of 1807, interdicting the British armed ships from our own water, should be recited as an indispensable preliminary; but to require from us also the violation of the principles of our naturalization laws, by insisting on the surrender of foreigners who had become naturalized. As to the Orders in Council, we know not what specific propositions he was charged with in relation to them. As far as we are able to deduce any thing from facts before us, it must be understood that the British Government had determined to accept of no conditions for the repeal of the Orders in Council except such as had been previously declared on the part of the American Government to be inadmissible. Notwithstanding what has been said by the gentleman from New York, (Mr. EMOTT,) I think it is easily to be demonstrated that the British Government did not intend to make any arrangement different from that contemplated by the celebrated instructions of the twenty-third of January, transmitted to Mr. Erskine. If the British Government, so recently as May last, disavowed an arrangement, and recalled its Minister, under an allegation that he violated his instructions, was it to be supposed that they would, in two or three months, so far change their policy as to authorize an arrangement on the same principles that they had just rejected? Certainly not, sir. It is evident that such an accommodation could not have been designed, because Mr. Canning says that such measures must be adopted as should secure the objects of the Orders in Council. That they did not by this mean the mere continuance of the non-intercourse law as to France, is manifest; for Mr. Canning says to Mr. Pinkney, that a repeal as to Great Britain, would be a repeal as to the whole world, unless the British Navy were to be permitted to enforce the law interdicting intercourse with France by the seizure of such vessels as should be found violating it. These, sir, were the circumstances under which the mission commenced. What were those that characterized its progress and termination? I think it very easy to show that the conduct of the Minister himself, after he arrived, partook strictly of the same character as the conduct of the Ministry who sent him. I think I have shown that the disposition manifested by the Ministry in sending him here was insulting to this country. Let us next inquire into the character disclosed, and the conduct displayed by that Minister after his arrival. And, in this inquiry, without wading through all the documents, which gentlemen can as well understand by perusing them in their chambers as by hearing them read here, I will merely advert to the offensive expressions used by Mr. Jackson, and to the manner in which those expressions were met by the Secretary of State. By doing this, it will be very discernible, not only that the facts stated in the resolution are sustained by the correspondence, but that the resolution does not go so far as facts would warrant. In Mr. Jackson's letter of the 11th of October, he says, that the arrangement with Mr. Erskine was made under such circumstances as could only lead to a disavowal. If the circumstances were such as could only lead to a disavowal, they must have been dishonorable, and Mr. Jackson, by intimating that our Government had a knowledge of these circumstances, charges it with being _particeps criminis_. Can any thing be more palpable than this? He expresses this idea in still stronger terms when he intimates that Mr. Smith had a principal agency in the misconduct on this occasion. It certainly was not in Mr. Smith's power to substitute conditions for those which he declined accepting, but it must have been done by Mr. Erskine. But, notwithstanding this, he charges Mr. Smith, not only with conniving at a conduct improper in itself, because it could only lead to rejection of the arrangement growing out of it, but insinuates that he was the principal actor in the scene. In Mr. Smith's letter in answer to Mr. Jackson, the animadversions are too clear in their object to be mistaken. Mr. J. is informed of the displeasure of the American Government at such insinuations; and, in the very first letter which was written by the Secretary of State, he disclaims pointedly having had any knowledge whatever of the deficiency of Mr. Erskine's instructions at the time of making the arrangement. And what says Mr. Jackson in reply? He says again, that Mr. Erskine's instructions were known to Mr. Smith. Sir, I acknowledge very candidly, that on a superficial perusal of the correspondence, the charge of falsehood, from the art and adroitness with which it is wrapt up, does not appear so palpable as when it is more closely examined. Yet, sir, notwithstanding all knowledge of the instructions had been denied by Mr. Smith, Mr. Jackson reiterates the assertion that they were known. Do gentlemen say that there is no insult in this? That there is nothing wrong in the assertion of a knowledge on the part of the Secretary of State which he had before formally and solemnly disclaimed. In Mr. Smith's letter to Mr. Jackson, of the first of November, he intimates to Mr. Jackson that a language implying such a knowledge on the part of the American Government, was altogether inadmissible. What is Mr. Jackson's reply in his letter of the 4th of November, which is the last communication that a proper self-respect on the part of the American Government would permit it to receive from him? After again insinuating that our Government had a knowledge of Mr. Erskine's instructions, he says: "That any thing therein (in his former letter) contained may be irrelevant to the subject, it is of course competent to you to endeavor to show; and as far as you succeed in so doing, so far will my argument lose of its validity; but, as to the propriety of my allusions, you must allow me to acknowledge only the decision of my own Sovereign, whose commands I obey, and to whom alone I can consider myself responsible." In speaking of the propriety of his allusions, he acknowledges that he had made them, and does not deny that they are of the character ascribed to them. This insolent letter is concluded by expressions too plain for any misconception whatever. He says: "I have carefully avoided drawing conclusions which did not necessarily follow from the premises advanced by me, and least of all should I think of uttering an insinuation where I was unable to substantiate a fact." He here, in fact, recognizes the insinuation imputed to him, and says he would not have made it if he could not have substantiated it. Collecting all his insinuations, on the one hand, and the refutation of them, on the other, I draw the conclusion that Mr. Jackson not only insulted the Government, but charged it with one of the foulest crimes--with direct falsehood. If the circumstances under which he was sent, and his conduct after he arrived here, were such as I have described, I ask if the occasion does not require that the American Government should take a firm and dignified stand? That we should repel insults and respect ourselves? Shall the authority to whom only is entrusted the most solemn act of government which can be performed, the act of deciding on the last appeal of nations, stand by and see the Executive insulted by an emissary, such as Mr. Jackson was? I hope not, sir. Sir, I consider the present no time for the causeless crimination of our own Government, and much less is it a time to countenance any other. We should discard domestic differences and party spirit, which, at a juncture like this, may be disastrous to our country. If we differ among ourselves, in the name of God let us unite against foreign aggression and foreign insult. It is admitted by gentlemen on the other side, that both Great Britain and France have done us wrong. If so, why not unite against the one as well as against the other? A conduct like this must produce the happiest consequences. If any thing like union is discovered against insult and injury, I believe in God that it would not be long ere we met on reciprocal terms of amity. Sir, for my country, I only desire the rule of right; that we must obtain. If it is thought I wish any disaster to befall the British nation, I am misunderstood. I am willing that Great Britain should be great, happy, and prosperous. I should view her downfall as an inauspicious event; consequences might result from it which I will not undertake to estimate; but I hope that the expectation never will be encouraged from this Hall, that Great Britain can or will receive any terms from us other than such as are fair, honorable, and reciprocal. The terms which have been offered to us are not of that kind. I submit it to gentlemen's own decision. We have long experienced injustice, and if we are only capable of being firm to our purpose, and adhering to the principles of neutrality which have hitherto guided the councils of our country, and especially the enlightened policy of the Executive department, we shall no doubt obtain justice. In every view, therefore, it appears to me that the resolution from the Senate not only is supported by the correspondence laid before us, but is rendered peculiarly important by the occasion. The appeal made by Mr. Jackson from the Executive, from the organ with which alone a foreign Minister can have communication, to the people, to a tribunal with which he cannot communicate, adds great force to the arguments in favor of a firm stand on our part. I hope it will be made, and that it never will be abandoned till we receive that justice which has been but too long delayed. Mr. Ross observed: I, for one, am an Administration man, if that Administration act correctly, whether it shall, in a time of great difficulty and doubt, insure a prospect of peace with Great Britain, or whether it may find it necessary in asserting the rights and independence of the Government to involve the nation in war. I think the importance of the one course is as great as the other, and I will, under such circumstances, equally support them when they are likely to make war as to make peace, however other gentlemen may differ from me on this head. Before I proceed to state, sir, what I conceive necessary to be understood, in order to come to a correct judgment on these resolutions, permit me to premise that there is more than a presumption that Mr. Erskine had a power to enter into the arrangement which he made. 1st. Because he himself declared he had such power. 2dly. Because he acted in conformity to that declaration; and, 3dly. Because Mr. Jackson does not deny he had such power. Mr. Jackson does not pretend to say that Mr. Erskine had not other despatches and other instructions than those of the 23d of January, and that, in them, there were not other conditions of a different grade and character from those contained in that despatch. Hence, I think it is fairly to be concluded, that Mr. Erskine had the power to enter into the agreement. It has, however, been said by the gentleman from Connecticut, (Mr. DANA,) that this is not so much a question of what our Government was ignorant of, as of what they knew, or what they ought to have known; and he has entered into a long examination of the mode of commissioning diplomatic characters, whether by letters of credence or by full powers, and has drawn a distinction between the two. In the first place, I apprehend it is in nowise material, to enable the House to decide on the resolution, whether the President did or did not know the nature of Mr. Erskine's powers. But it is necessary to rescue him from the imputation which those are disposed to cast on him who are desirous to pull down the Administration. What was the amount of the gentleman's showing on this occasion? That in all cases, in order to complete a treaty, it is necessary there should be a commission or full power. But has he shown that it is necessary in order to make a preliminary arrangement similar to that entered into? I apprehend he has not. On referring to the letter quoted by him from Mr. Jefferson, then Secretary of State, to Mr. Hammond, we find the former calling upon the latter to exhibit his powers to enter into a negotiation; but Mr. Jefferson afterwards recedes from that demand, and receives the word of Mr. Hammond that he is possessed of power to negotiate as sufficient evidence of his being clothed with the proper power without the exhibition thereof. But the ratification was not withheld, as has been justly said, because there was an absence of a full power on this occasion. Mr. Jackson himself states that this was not the ground on which the ratification was withheld. It must first be proved that it was obligatory on the Executive to call for Mr. Erskine's full power, and it must then be proved that he did not, before his observations can be brought to bear on the question. Where is the proof that the Executive did not call for those powers? It is not pretended that Mr. Erskine had not a power to make an arrangement, but that it was not concluded in pursuance of his instructions. Therefore, if he had produced ten thousand powers, unless his instructions had authorized him to do what he did, the British Ministry would have rejected the terms stipulated for them, as they have done. But why is it necessary to know, on this occasion, whether the President did call for these powers or not? The inquiry composes no part of the resolution; it is neither expressly mentioned nor glanced at; and why this inquiry is raised, I confess I am utterly at a loss to know, unless it was to prove that the President of the United States had a knowledge of the instructions, and that they restricted Mr. Erskine's powers. The gentleman has not ventured to infer that the President of the United States had this knowledge, but the course of his argument goes to show that, in his opinion, he did possess this knowledge. He lays down the position, that it was the duty of the President to have seen those powers, and, I presume, supposes that the conclusion will be drawn that the President performed his duty; and, of course, taking it for granted that there were no other instructions than those of the 23d of January, that the President must have seen those instructions, and consequently have known that Mr. Erskine had not power to conclude the arrangement. All his argument went to raise a structure to induce a belief in this House, and in the public at large, that this knowledge must have been in possession of the President. The gentleman, at the same time, professes the utmost regard and respect for Mr. Madison. This, I confess, is following the direction of the poet, who says: "Damn with faint praise, assent with civil leer; And, without sneering, teach the rest to sneer." But let us inquire if the President had any knowledge that Mr. Erskine had no full power; for if I show, beyond all doubt, that the President did not know it, all this insidious fabric, which is designed to produce so many delusions, will vanish at once. I think it is to be presumed that the President had no knowledge that Mr. Erskine had not full powers, because he entered into the arrangement. What object could he have in view which should induce him to conclude an arrangement, except with full confidence of its being carried into effect? Not to get rid of the embargo--that had long before been interred by its fathers with a truly Christian spirit. Not to get rid of the non-intercourse--because the moment the arrangement was disavowed, the President breathed life and spirit into that act, and gave it renewed existence. It was not from any hostile disposition to England, because he could have no reason to wish for a war. And because, if he had desired a war with that country, he had no occasion to seek a pretext therefor, inasmuch as long antecedents, and up to the very time of making the arrangement, the causes for war against Great Britain were great and numerous, as has been agreed by all parties. If not to get rid of the embargo, nor of the non-intercourse, nor for war, what object could he have, with such knowledge as has been imputed to him, not expressly, but by inference, in making the arrangement of April? Will gentlemen be good enough to condescend so far as to assign some object that the Executive could have had in view from such conduct? For it is not to be presumed that men, in or out of office, act without motive and without object. Therefore, hearing no reason assigned why the President should act thus preposterously, as it is attempted to be insinuated he did, by those in opposition, it would be reasonable to conclude that he had no such knowledge. But, in opposition to this insinuation, also, you have the solemn declaration of the President of the United States, through the Secretary of State. Humiliating in the extreme must it be to hear this solemn asseveration questioned, even in a side-way, in order to support the insolence of a British Minister! Was it not enough that the country has been enabled to endure, in order to secure the great object of remaining in peace, insult after insult, outrage after outrage, and even that the Government should be insulted by foreign diplomatic characters, without doubts and suspicions being insinuated by members of this House? Pray, sir, let me ask this House, or the whole of the United States, what the President of the United States has ever done in any official character, among the many which he has filled with honor to himself and reputation to his country, that the correctness of his declarations, made through his Minister of State, should be disputed? But I might suffer the humiliation of going still further into the subject. We have the word of the recalled Minister, if that be considered more conclusive by gentlemen than that of the President of the United States, that he did not communicate his instructions to Mr. Smith. We have, 1st. The presumption that the Executive had no knowledge of Mr. Erskine's instructions, because he could have no object in view in concluding an arrangement with that knowledge; 2d. We have his declaration to that effect through the Secretary of State; 3d. We have the declaration of the Minister, whose act was disavowed, to the same effect. What have we to destroy this proof? The deceptive, poisonous insinuations of Mr. Jackson. Mr. Erskine repeatedly declared that he had ample powers. On the news being received during the last session of the issuing of the order of the 26th April, he declared that he had no doubt his arrangement would be carried into effect. He, to the last moment, declared that he acted in the spirit, if not in the letter, of his several letters of instructions. How, therefore, was it possible for the President to receive information from Mr. Erskine that he was not invested with competent power, when Mr. Erskine himself declared and believed he was, and acted accordingly. From these considerations I apprehend it most clearly appears that the President of the United States had not a knowledge, neither was it his duty to have had a knowledge that Mr. Erskine did not possess powers to make the arrangement which he did. TUESDAY, December 26. Two other members, to wit: from Massachusetts, BENJAMIN PICKMAN, jr.; and from Virginia, WILLIAM A. BURWELL, appeared, and took their seats in the House. THURSDAY, December 28. _Conduct of the British Minister._ The House again resumed the consideration of the report of the Committee of the Whole on the resolution from the Senate approving the conduct of the Executive in refusing to receive any further communications from Francis J. Jackson. The motion for indefinite postponement being still under consideration-- Mr. STANFORD said, so many were the objectionable features of the present resolution before the House, he should vote for its indefinite postponement, and with permission of the House he would give his reasons for his vote. In the first place, he thought the language and style of the resolution highly objectionable, and calculated to render that which was already bad enough still worse; that it was, in the second place, a strange innovation upon all former practice and usage under our present Government; and lastly, that it was clearly unconstitutional. Thus much he should endeavor to show, and trusted he would be able to do it to the satisfaction of the House. Mr. S. then premised that he had disapproved the introduction of the resolution of approbation at the last session; that he considered unnecessary; but the present he considered not only unnecessary, but even pernicious. That was a pacific one; this belligerent in all its aspects. He had suggested a mode to one or two gentlemen, of getting rid of that one, if they had thought proper, and in which case he would have contributed his vote to have got clear of it. But, had the question been put in a direct form, he should have differed from his colleague, (Mr. MACON,) inasmuch as he should have voted for it. He could not have done honestly otherwise, as he had most cordially approved the arrangement made by our Government with Mr. Erskine. Further, that as respected the rejection of Mr. Jackson, he thought entirely with his colleague, that he might well have been dismissed on the receipt of his first letter. He tells us for what he had been sent and commanded to do. In the case of the Chesapeake, to make "declarations" and to receive counter "declarations" simultaneously. In other words, for the arrogance, insults, and murders, we had borne and suffered, he came to stipulate atonement, if we would stipulate a sort of counter atonement at the same time. Stipulation for stipulation, at any rate. It had "_not appeared to His Majesty_ necessary to command him to propose to our Government any formal agreement" to take place of the rejected one. For the matter, said Mr. S., of Mr. Jackson's instructions, much rather than for the manner of his negotiation, might the communication have been cut off with him. Both matter and manner were, to be sure, objectionable, but the former, in his estimation, formed much the most solid ground of dismissal. It was but too obvious the mission of Mr. Jackson would end as the former one had done. That he did not come to propitiate us was but too manifest. While the resolution before us, sir, affects to support the Executive Government against insult, and language "highly indecorous," it descends into a style of expression, itself more culpable and degrading; unworthy, indeed, of the country and the dignity of its Government. It was a flattering truth to know that in the style of diplomatic correspondence the American side of the question suffered not in comparison with that of any other. In the late, as well as former instances, the advantage has been calculated, as he presumed, to inspire every American bosom with just sentiments of pride. Had it, therefore, been recommitted, as his colleague (Mr. MACON) had advised, he had no doubt it could have been amended, and rendered more worthy of consideration as a State paper, than it is likely to be in its present dress and form. Besides, Mr. Speaker, if the measure be intended to have any effect, it must be a bad one. It looks toward war. Already are our difficulties with Great Britain critical enough, but if gentlemen wish war, the thing is altogether appropriate to its end; well calculated not to support, but to thwart the pacific views and intentions of the Executive. We may, in this way, foreclose the door of amicable negotiation which the Executive by his first Message showed us he had kept open. If rudeness of expression had been resorted to on the part of the British Minister, in his correspondence with our Government, had it not been repelled on their part? Had they not amply redressed the insult of the individual? It might well afford some consolation to ourselves and the country, if other wrongs and insults have been even as well repaired as this. Besides the murder of Pierce, the more horrid murders on board the Chesapeake, the continuation of impressments for years, we have had instances, more than one, it is said, of other Ministers conspiring with your conspirators, menacing you with war, and putting your Government at defiance, here in the ten miles square, and the sensibility of Congress had never before been awakened to a resolution of this kind in defence of the Executive. The truth is, sir, it never needed it, nor does it now. We have, in very deed, Mr. Speaker, refined upon the more substantial insults we have suffered, till we have literally reduced it to a _war of words_. It is the _expressions_ of the individual we are combating, and pledging the whole force of the country to protect the President against the consequences of, and not the more palpable injuries received. Would to Heaven, sir, such a resolution had not been brought forward! It is unworthy of us--unworthy of the political professions we heretofore made, even those made at our last session. That a resolution of approbation, Mr. Speaker, is against all example for the last eight years; that it is an innovation upon all usage and practice, reference need only be had to the speeches of gentlemen during the last session. They afford the most ample proof. They were then unwilling to pour out the oil of adulation upon the Executive head. It was deemed unnecessary, anti-republican, to do so. He hoped gentlemen understood him. He was using their own language upon that occasion, and not his own. He borrowed it for its excellence and fitness upon the present occasion. Such language conveyed his sentiments _then_, and _still did_; and, for his part, he could not comprehend how it could be correct then, and now the reverse of correct. Some gentlemen on the floor perfectly remembered that when Mr. Jefferson came into the Presidency, eight years ago, he changed the mode of personal address into that of written message. "In doing this," said he, in his first Message, "I have had a principal regard to the convenience of the Legislature, to the economy of their time, to their relief from the embarrassment of immediate answers on subjects not yet fully before them, and to the benefits thence resulting to the public affairs." All acquiesced in this new course, and from that time to the late instance mentioned, no time had been wasted in pouring back the oil of adulation or approbation, in any form, on the Executive head. The only instance which could be cited during the last eight years, was found incidentally incorporated in a resolution relating to the navigation of the Mississippi. The words were, "and relying with, perfect confidence on the vigilance and wisdom of the Executive." This, then, was the only drop of this oil which the last Administration produced, and has been called up at this first ordinary session of a new Administration to form an example to follow; or rather, might we not say, to resume the exploded practice of former times, and thus echo back messages in this new form of joint resolution. But what was the style in which gentlemen spoke at our last summer session, when the subject of approbation was then before us? The language of one was, if it were the object to bring before the House a discussion upon the Message of the President, and to return an answer to his Excellency's most gracious Message, he should certainly be opposed to it. If there had ever been a particular part of the former Administration which had met the approbation of the Republicans generally of this country, it was the discontinuance of the practice. Another had told us that he was "opposed to a deviation from what he conceived to be the duty, and becoming the dignity of the House." He thought the House had nobler duties to perform than passing abstract resolutions, out of which no legislative act is contemplated, merely for the purpose of pouring the oil of adulation upon the head of the Chief Magistrate. And again, the gentleman from Pennsylvania, (Mr. FINDLAY,) whose opinions are always so much relied upon and respected in this House, and he, Mr. S., trusted by few more sincerely than himself, had, upon that occasion, with singular happiness and force, spoken thus: "Law," said the gentleman, "is the only language of a Legislature. It is the only language that can command obedience and respect. Any equal number of citizens met in a tavern, and there passing a resolution of approbation, would have equal force with such a resolution passed in this House, and would be more in character. They are acting without authority from the constitution or the rules of the House." It would be for that gentleman to tell us, to tell the House, and he would beg the gentleman's pardon for the particular request--but he must request that he would take the occasion to let us all know how his doctrine then is now to be got over. For his own part, he could not comprehend how right and wrong could change their respective sides in so short a time. His colleague, (Mr. MACON,) in referring to former times, had expressed some doubt whether the majority were the same party now they were then. He felt no doubt himself they were the same; but there was no room to doubt, from the present question itself, they had undergone some strange modification since former times. The doctrines then must be well remembered by him, yourself, Mr. Speaker, and a few others on this floor. The advocates of this sort of adulation must go back beyond the times of the late and last Administration, if they would introduce the fashion again. At the opening of the fifth Congress, in the answer of this House to the speech of the President, these words are used: "We cannot omit to testify our approbation of the measure, and to pledge ourselves that no considerations of private inconvenience shall prevent, on our part, a faithful discharge of the duties to which we are called." And again, this sentence: "Whilst we view with great satisfaction, the wisdom, dignity, and moderation, which have marked the measures of the Supreme Executive of our country in its attempt to remove, by candid explanations, the complaints and jealousies of France, we feel the full force of that indignity which has been offered our country in the rejection of its Minister." This language was too much in the style of adulation for us then to brook, and our names, sir, stand recorded together against it. Let gentlemen compare for themselves. It is the peculiar misfortune, sir, of this system, if again to be revived, that the right of approbation fully implies the right of disapprobation and censure; and during the same Administration of which we are speaking this right of disapproving and censuring was also attempted to be exercised. The resolution was introduced at the first session of the sixth Congress, by a gentleman then from the city of New York, (Mr. LIVINGSTON,) in the case of Jonathan Robbins. The same gentleman is occasionally present here at this time, and seems yet to be a stickler for judicial decision, and still thinks the Executive, against an individual, matchless odds. The part of the resolution alluded to, runs thus: "that the decision of those questions by the President of the United States against the jurisdiction of the courts of the United States, in a case where those courts had already assumed and exercised jurisdiction, and his advice and request to the judge of the district court, that the person thus charged should be delivered up, provided, only, such evidence of his criminality should be produced as would justify his apprehension and commitment for trial, _is a dangerous interference of the Executive with judicial decisions_." Hence, then, sir, it might be easily seen from a practice of this sort, that a whole session might be wasted without doing any part of the public business. The thing would be endless. In the fourth Congress, on a subject of a call for papers in relation to the British Treaty, an unhappy difference arose between this House and the Executive. General WASHINGTON was the President. His reply to the House was, "that a just regard to the constitution, and to the duty of his office, forbid a compliance with their request." The House, again by resolution, asserted their right, disclaiming, however, at the same time, any agency in making treaties. Notwithstanding the violence and passion of the moment, this House did not then think they had any right to meddle with the making of treaties; but now it would seem the present House were disposed to join the Senate in this sort of interference in the negotiations of the Executive to form a treaty. In all the cases alluded to, sir, it should be distinctly kept in view, that each House had acted for itself in voting their approbation and homage to Executive speeches and proclamations. He had reference to the proclamation of neutrality by General WASHINGTON. This was the first time Congress ever legislated approbation before. Mr. QUINCY.--It is not my intention, Mr. Speaker, to offer any common-place apology for the few observations I shall submit to the House on the subject now under consideration. Such is the character, and such the consequences of these resolutions, that no man, who had at heart the honor and happiness of this country, ought to continue silent, so long as any topic of illustration is unexhausted, or any important point of view unoccupied. It is proposed, sir, that this solemn assembly, the representative of the American people, the depositary of their power, and in a constitutional light, the image of their wisdom, should descend from the dignity of its legislative duties, to the task of uttering against an individual the mingled language of indignation and reproach. Not satisfied with seeing that individual prohibited the exercise of his official character, we are invited to pursue him with the joint terrors of legislative wrath, couched in terms selected to convey opprobrium and infix a stigma. "Indecorum," "insolence," "affront," "more insolence," "more affront," "direct, premeditated insult and affront," "disguises, fallacious and false:" these are the stains we are called upon to cast; these the wounds we are about to inflict. It is scarcely possible to comprise, within the same compass, more of the spirit of whatever is bitter in invective, and humiliating in aspersion. This heaped up measure of legislative contumely is prepared; for whom? For a private, unassisted, insulated, unallied individual? No, sir. For the accredited Minister of a great and powerful Sovereign, whose character he in this country represents, whose confidence he shares; of a Sovereign who is not bound, and perhaps will not be disposed to uphold him, in misconduct; but who is bound, by the highest moral obligations, and by the most impressive political considerations, to vindicate his wrongs, whether they affect his person or reputation, and to take care that whatever treatment he shall receive shall not exceed the measure of justice, and above all, that it does not amount to national indignity. Important as is this view of these resolutions, it is not their most serious aspect. This bull of anathemas, scarcely less than Papal, is to be fulminated, in the name of the American people, from the high tower of their authority, under the pretence of asserting their rights and vindicating their wrongs. What will that people say, if, after the passions and excitements of this day shall have subsided, they shall find--and find I fear they will--that this resolution is false, in fact; that a falsehood is the basis of these aspersions upon the character of a public Minister? What will be their just indignation, when they find national embarrassments multiplied, perhaps their peace gone, their character disgraced, for no better reason than that you, their representatives, following headlong a temporary current, insist on making assertions, as they may then, and I believe will, realize to be not authorized by truth, under circumstances, and in terms, not warranted by wisdom? Let us not be deceived. It is no slight responsibility which this House is about to assume. This is not one of those holiday resolutions, which frets and fumes its hour upon the stage and is forgotten forever. Very different is its character and consequences. It attempts to stamp dishonor and falsehood upon the forehead of a foreign Minister. If the allegation itself be false, it will turn to plague the accuser. In its train will follow severe retribution, perhaps in war; certainly in additional embarrassments, and most certainly, in worse than all, the loss of that sentiment of self-esteem, which to nations, as well as individuals, is "the pearl of great price;" which power cannot purchase, nor gold measure. In this point of view, all the other questions which have been agitated in the course of this debate dwindle into utter insignificance. The attack or defence of administration, the detection of fault, or even the exposure of crime, are of no importance when brought into competition with the duty of rescuing this House and nation from the guilt of asserting what is false, and making that falsehood the basis of outrage and virulence. I avoid, therefore, all questions of censure or reproach on either the British Minister or the American Secretary of State. I confine myself to an examination of this resolution, particularly of the first branch of it. This is the foundation of all that follows. I shall submit it to a rigid analysis, not for the purpose of discovering how others have performed their duties, but of learning how we shall perform ours. The obligation to truth is the highest of moral and social duties. It is remarkable, Mr. Speaker, that of all the gentlemen who have spoken, no one has taken the precise terms of the resolution as the basis of his argument, and followed that course of investigation which those terms naturally prescribe. Yet the obvious and only safe course, in a case of such high responsibility, is first to form a distinct idea of the assertion we are about to make, and then carefully to examine how that assertion is supported, if supported at all, by the evidence. With this view I recur to the resolution, in the form in which it is proposed for our adoption, and make it the basis of my inquiries. [The Resolution.] This part of the resolution, it will not be denied, is the foundation of the whole. For if no such "idea was conveyed" in the letter of the 23d of October, then there could be no "repetition" of that idea, in the letter of the 4th of November; and if in the former part of his correspondence Mr. Jackson had made no such "insinuation," then the assertion in this letter that he had made none, was perfectly harmless and justifiable. This part, therefore, includes the pith of the resolution. If we analyze it, we shall find that it contains two distinct assertions. First, that the expressions alluded to convey a certain idea. Second, that this idea, so conveyed, is indecorous and insolent. Here again we are enabled to limit the field of our investigation. For, if no such idea, as is asserted, was conveyed, then the inquiry, whether such idea is indecorous and insolent, is wholly superseded. The true and only question, therefore, is _whether the expressions alluded to, do convey the asserted idea_. I place the subject in this abstract form before the House to the end that, if possible, we may exclude all those prejudices and partialities which so naturally and imperceptibly bias the judgment. In the light in which it now stands, it must be apparent to every one who will reflect, that the question has, so far as it respects the principles on which our decision ought to proceed, no more to do with the relations between Great Britain and the United States, than it has with those between the United States and China, and has no more connection with Mr. Francis J. Jackson and Mr. Robert Smith, than with the late Charles of Sweden, and the old Duke of Sudermania. It is a simple philological disquisition, which is to be decided by known rules of construction. The only investigation is, touching the power or capacity of certain terms to convey an alleged idea. However illy suited a question like this may be for the discussion of an assembly like the present, yet if we would be just to ourselves and the people, we must submit to an examination of it, in that form in which alone certainty can be attained. It is only by stripping the subject of all adventitious circumstances, that we can arrive at that perfect view of its nature which can satisfy minds scrupulous of truth, and anxious concerning duty. It is only by such a rigorous scrutiny that we shall be able to form that judgment which will stand the test of time, and do honor to us and our country when the passions of the day are passed away and forgotten. The natural course of inquiry now is, into the idea which is asserted to be conveyed, and the expressions which are said to convey it. Concerning the first there is no difficulty. The idea asserted to be conveyed is, "that the arrangement made between Mr. Erskine and Mr. Smith was entered into by the American Government, with a knowledge that the powers of Mr. Erskine were incompetent for that purpose." It would save a world of trouble if the expressions in which this idea is said to be conveyed were equally easy of ascertainment. But on this point, those gentlemen who maintain this result are far from being agreed. Some being of opinion that it is to be found in one place, some in another, and others again assert that it is to be found in the whole correspondence taken together. Never was an argument of this nature before so strangely conducted. Gentlemen seem wholly to lay out of sight that this resolution pledges this House to the assertion of a particular fact, and expresses no general sentiment concerning the conduct of Jackson, or the conduct of his Government. Yet, as if the whole subject of British relations was under discussion, they have deemed themselves at liberty to course through these documents, collect every thing which seems to them indecorous, insolent or unsuitable in Mr. Jackson's language, and add to the heap thus made the whole list of injuries received from Great Britain--impressments, affair of the Chesapeake, murder of Pierce--and all this, for what purpose? Why, truly, to justify this House in making a solemn asseveration of a _particular fact_! As if any injury in the world could be even an apology for the deliberate utterance of a falsehood. Let the conduct of Mr. Jackson, or of Great Britain, be as atrocious as it will, if the fact which we assert do not exist, we and this nation are disgraced. It is evident, then, that irksome as such a task is, it is necessary that we should submit to a precise inquiry into the truth of that to which we are about to pledge our reputation and that of this people. In our investigation, let us follow the natural course that is pointed out in the resolution. This alleges that the obnoxious expressions are contained in a letter of the 23d of October, and to this limits our assertion. In this letter, therefore, either directly, or by way of reference to some other, this obnoxious idea or insinuation must be found. For if it be not in this, even if it should be contained in other parts of the correspondence, which is not, however, pretended, still our assertion would be false. Concerning this letter of the 23d of October, I confidently assert, without fear of contradiction, that the obnoxious idea, if contained in that letter, is conveyed in the paragraph I am now about to quote. No man has pretended to cite any part of this letter, as evidence of the asserted insult, except the ensuing, and although there is not a perfect coincidence in opinion as to the particular part in which it resides, yet all agree that it lurks somewhere in this paragraph, if it have any dwelling-place in this letter. [The paragraph.] I have quoted the whole paragraph because, in that obscure and general mode of argument in which gentlemen have indulged, it has been read as that entire portion in which the insult is conveyed. It is difficult to conceive how some parts of this paragraph can be thought to convey any insult. However, in prosecution of my plan, I shall first exclude all those parts in which the obnoxious idea cannot be pretended to exist, and then limit my investigation to that part in which it must exist, if, in the letter of the 23d of October, it be conveyed at all. With respect to the first sentence in this paragraph, I say confidently that the insult is not contained there. It is simply a declaration of the causes of the disavowal, so far from including the obnoxious idea of a knowledge in our Government of the incompetency of Erskine's powers, that in a manner it excludes that idea, by enumerating violation of instructions and want of authority as the only causes of the disavowal. In the first sentence, then, the insult is not. I pass by the second, as it will be the subject of a distinct examination hereafter. The third and fourth sentences it will not even be pretended convey this obnoxious idea. They simply acknowledge the frequency of graduated instructions, and assert the fact that Mr. Erskine's were not of that character. In this there is no insult. As little can it be pretended to exist in the fifth sentence. It merely asserts that Mr. Smith "_already_," that is, at or before the time Mr. Jackson was then writing, is acquainted with the instructions, (a fact not denied, and not suggested to be an insult,) and that the fact of these instructions being the only ones, Mr. Smith knows _from the information of Mr. Jackson_--an assertion, which so far from intimating the obnoxious idea of a knowledge in Mr. Smith at the time of the arrangement with Mr. Erskine, that it conveys a contrary idea, by declaring that he was indebted for it to his (Mr. Jackson's) information. Here, then, the insult is not. With respect to the last sentence in this paragraph, the only assertions it contains, are the fact that the terms accepted were not contained in the instructions, and the evidence of this fact derived from the statement of Erskine that those acceded to were substituted by Mr. Smith in lieu of those originally proposed. In all this, the knowledge of Mr. Smith of the incompetency of Mr. Erskine's powers is not so much as intimated. Indeed, no one has pretended directly to assert that they have found it in the parts of this paragraph, from which I have thus excluded the obnoxious idea. Yet, as the whole has been cited, and made the basis of desultory declamation, I thought it not time lost to clear out of the way all irrelevant matter, and to leave for distinct examination the only sentence of this paragraph in which the insult lurks, if it has any existence in this letter. This point we have now attained. And as little inclined as gentlemen may be to precise investigation, they must yield to it. I say, therefore, confidently, and without fear of contradiction, that if the assertion contained in this resolution be capable of justification by any part of the letter of the 23d of October, it is by the following, the only remaining sentence of the cited paragraph which I have not yet examined: "These instructions I now understand by your letter, as well as from the obvious deduction which I took the liberty of making in mine of the 11th instant, were, at the time, in substance made known to you; no stronger illustration, therefore, can be given of the deviation from them which occurred than by a reference to the terms of your agreement." The latter part of this sentence being merely a conclusion from the preceding part, and having no relation to the knowledge of our Government at the time of the arrangement, will be laid out of consideration as being obviously wholly without the possibility of any agency in conveying the obnoxious idea. There remains only the preceding part of this sentence for the residence of the insult. Here, if anywhere, it must exist. Accordingly this is usually shown as the spot where the ghost of insinuation first appeared before the eyes of our astonished Administration. Here we shall again find it; unless, indeed, it were in fact a mere delusion of the fancy, formed of "such stuff as dreams are made." Let us examine by way of analysis. [Here Mr. QUINCY analyzed the paragraph.] I have thus far proceeded by way of a strict analysis of every part of the correspondence, in which the insulting idea, asserted in this resolution, has been said to be conveyed. I have omitted no part which has been cited in support of this first resolution, and think that I have shown that it exists nowhere in the letter of the 23d of October, either in direct assertion, or by way of reference. And it is concerning what is contained in that letter alone, that the resolution under consideration makes assertion. The House will observe that, according to all rules of fair reasoning, it would have been sufficient for me to have limited myself to show the fallacy of the arguments of the advocates of this insult; it being always incumbent on those who assert the existence of any thing to prove it. I have not, however, thought my duty on so important an occasion fulfilled, unless I undertook to prove what the lawyers call "a negative," and to show, with as much strength of reasoning as I had, the non-existence of the idea asserted in this resolution; with what success, I cheerfully leave to the decision of such thoughtful men in the nation who will take the trouble to understand the argument. There is, however, a corroborative view of this subject, which ought not to be omitted. The insulting idea said to be conveyed is, that Mr. Smith had a knowledge, at the time of the arrangement, of the incompetency of Erskine's powers, and this because such a knowledge was one of the essential circumstances which could only lead to a disavowal. Now, it does happen that neither Mr. Erskine nor his Government enumerate this knowledge of our Government as one of those essential circumstances. On the contrary, they constantly omit it, when formally enumerating those circumstances. Mr. Canning places the disavowal, solely, on the footing of Mr. Erskine's having "acted not only not in conformity, but in direct contradiction to his instructions." Mr. Jackson, also, in his letter of the 23d, when formally enumerating the causes of the disavowal, says expressly, that the disavowal was "because the agreement was concluded in violation of that gentleman's instructions, and altogether without authority to subscribe to the terms of it." Now, is it not most extraordinary, that after such formal statements, not including the knowledge of our Government among the essential circumstances, that it is on this knowledge the British Government intend to rely for the justification of their disavowal? I simply ask this question, if the British did intend thus to rely on the previous knowledge of our Government, why do they always omit it in their formal enumerations? And if they do not intend thus to rely, in what possible way could it serve that Government thus darkly to insinuate it? But as if it were intended to leave this House wholly without excuse in passing this resolution, Mr. Jackson expressly asserts, in this very letter of the 23d of October, that the information of that fact was derived from him, the knowledge of which, this resolution asserts, he intended to intimate was known at the time of the arrangement with Erskine. For he specifically says: "I have had the honor of informing you that it (Mr. Erskine's instruction) was the only one by which the conditions on which he was to conclude were prescribed." Now, if Mr. Jackson had remotely intended to intimate that Mr. Smith had a previous knowledge of that fact, would he have asserted that he was indebted to him (Mr. Jackson) for the information? Conclusive as this argument is, there is yet another in reserve, which is a clincher. And that is, that this very knowledge which we propose solemnly to affirm Mr. Jackson intimated our Government possessed at the time of the arrangement, it is, from the nature of things, impossible they should have possessed. The idea asserted to be intended to be conveyed is, a knowledge in our Government that the arrangement was entered into without competent powers on the part of Mr. Erskine. Now, the fact that Mr. Erskine's powers were incompetent, it was impossible for our Government to know, except from the confession of Mr. Erskine. But Mr. Erskine before, at the time, and ever since, has uniformly asserted the reverse. So that, besides all the other absurdities growing out of this resolution, there is this additional, that it accuses Mr. Jackson of the senseless stupidity of insinuating as a fact, a knowledge in our Government, which from the undeniable state of things it is not possible they should have possessed. Mr. Speaker, can any argument be more conclusive? 1. The idea is not conveyed by the form of expression. 2. Mr. Jackson, though expressly enumerating the only causes which led to a disavowal, does not suggest this. 3. Mr. Jackson expressly asserts the knowledge that these were the only instructions derived from him; of course it could not have been known previous to the arrangement. 4. Had he been absurd enough to attempt to convey such an idea, the very nature of things shows that it could not exist. I confess I am ignorant by what reasoning the non-existence of an insinuation can be demonstrated, if it be not by this concurrence of arguments. Before I conclude this part of the subject, it will be necessary to make a single observation or two, on the following passage in Mr. Jackson's letter of the 4th of November, for although our assertion has relation, in the part of the resolution under consideration, only to the letter of the 23d of October, yet this subsequent passage has been adduced as a sort of accessory after the fact. "You will find that, in my correspondence with you, I have carefully avoided drawing conclusions that did not necessarily follow from the premises advanced by me, and least of all should I think of uttering an insinuation, where I was unable to substantiate a fact. To facts, as I have become acquainted with them, I have scrupulously adhered." This the subsequent part of the resolution under debate denominates, "the repetition of the same intimation." But if the argument I have offered be correct, there was no such "intimation" in the preceding letters, and of course no repetition of it here. For if he had, as I think I have proved, in his former letters uttered no such insinuation as is asserted, then all the allegations in this paragraph are wholly harmless and decorous, neither disrespectful nor improper. "But this," says the gentleman from Pennsylvania, (Mr. MILNOR) "is conclusive to my mind, that Mr. Jackson did intend to insult, for if he had not would he have refrained from giving an explanation when it was asked?" That gentleman will recollect that the assertion of this House is as to the idea which Mr. Jackson has conveyed in the letter of the 23d, not as to the idea which he intended to convey. Suppose he intended it, and has not done it, our assertion is still false. But will that gentleman seriously conclude, contrary to so obvious a course of argument, that he has asserted, or even intended to assert, this particular idea, merely because he does not choose to explain it? Are there not a thousand reasons which might have induced Mr. Jackson not to explain, consistent with being perfectly innocent of the intention originally to convey it? Perhaps he thought that he had already been explicit enough. Perhaps he thought the explanation was asked in terms which did not entitle Mr. Smith to receive it. Perhaps he did not choose to give this satisfaction. Well that now is "very ungentlemanly," says the gentleman from Pennsylvania, (Mr. MILNOR.) I agree, if he pleases, so it was. But does that justify this resolution? Because he is not a gentleman, shall we assert a falsehood? I briefly recapitulate the leading points of my argument. When Mr. Jackson asserts "that the substance of the instructions was known to our Government," the expression cannot convey the obnoxious idea, because it is not pretended that, in those instructions, the existence of other powers was excluded. When he says, "you must have thought it unreasonable to complain of disavowal," the time of knowledge implied is confined by the structure of the sentence to the time of a disavowal known, and cannot be limited backwards to the time of arrangement made. It is also absurd to suppose that Mr. Jackson would intimate by implication the knowledge of our Government of Erskine's incompetency of powers at the time of arrangement, as an essential circumstance on which the King's right of disavowal was founded, and yet omit that circumstance in a formal enumeration; and lastly, it is still more absurd to suppose that he would undertake to insinuate a knowledge, which, from the nature of things, could not possibly exist. I have thus, Mr. Speaker, submitted to a strict and minute scrutiny all the parts of this correspondence which have been adduced by any one in support of the fact asserted in this resolution. This course, however irksome, I thought it my duty to adopt, to the end that no exertion of mine might be wanting to prevent this House from passing a resolution, which, in my apprehension, is pregnant with national disgrace, and other innumerable evils. FRIDAY, December 29. Another member, to wit, from North Carolina, JAMES HOLLAND, appeared and took his seat. COL. ISAAC A. COLES. _Breach of Privilege._ Mr. TAYLOR, from the committee appointed to inquire into the circumstances alluded to in the letter of I. A. Coles to the Speaker of the House, made the following report: That, according to that order, they have taken into consideration the subject referred to them; that in making the proposed inquiry they have taken the depositions of the honorable James Turner, a Senator of the United States, and of Mr. Samuel Sprigg, which depositions they beg leave to report to the House. From these depositions it was established, to the satisfactory belief of your committee, that Mr. I. A. Coles, without any immediate previous altercation or provocation, did assault and strike a member of this House, within the walls of the north wing of the Capitol; that this act was done on Monday, the 27th ult., about one o'clock P. M., and after this House had adjourned over to the following day. That, from the assertions of Mr. Coles, and from the actual admission of the member assaulted, your committee were satisfied that the provocation or supposed provocation which occasioned the attack did not arise from any thing said or any act done by the member of this House, in the fulfilment of his duties as a Representative in the Congress of the United States. Your committee are of opinion that this latter circumstance may be received in extenuation, but cannot be admitted in justification of the act done by Mr. Coles; and, from all the circumstances of the case, they are of opinion that said assault and violence offered to the member was a breach of the privileges of this House. Your committee further report, that they have considered the letter of Mr. Coles to the Speaker of this House, together with another letter from Mr. Coles addressed to the Chairman of your Committee, (which they also beg leave to report to the House,) that these two letters, in the opinion of your committee, do contain acknowledgments and apologies on the occasion, which ought to be admitted as satisfactory to the House. They therefore recommend the following resolution: _Resolved_, That any further proceeding in the above case is unnecessary. _To the Hon. John Taylor, Chairman, &c._ SIR: Understanding that the declaration which I had the honor this morning to make before the committee, will be more acceptable if put in the written form, I hasten to comply with what I believe to be their wish, in tendering through them, to the House of Representatives, the renewed assurance "that if I could have supposed that the circumstance alluded to in my letter to the Speaker, would have been construed into a breach of the privilege of the House, it would not have occurred at the time and in the place where it unfortunately happened." With sentiments of great respect, I am your obedient humble servant, I. A. COLES. _December 28, 1808._ Ordered to lie on the table. _Conduct of the British Minister._ The House resumed the consideration of this subject. At four o'clock Mr. LIVERMORE commenced a speech, but gave way for a motion to adjourn which was carried, 53 to 51. SATURDAY, December 30. A motion was made by Mr. DAWSON, that the report made yesterday, on the occurrence between I. A. COLES and a member of this House, and the documents accompanying the same, be printed for the use of the members: and the question being taken thereon, it was resolved in the affirmative--yeas 76, nays 25. The report and documents were referred to a Committee of the Whole on Thursday next. _Conduct of the British Minister._ Mr. RHEA, of Tennessee--Mr. Speaker, it is not deemed necessary in the observations I will make on the resolution under consideration, to take into view any relations of the United States with Great Britain or France, because it does not clearly appear that any exist, except in this, that the United States are suffering loss and damage. If there be any relations with Great Britain, as they respect the United States, they are negative and suffering; as they respect Great Britain, positive and active. Be they what they may, they are not properly within the range of a discussion on this resolution, which merely respects the conduct of an Ambassador Extraordinary and Minister Plenipotentiary of His Britannic Majesty near the United States. How the relations, if there be any, between the United States and France are connected with the subject of this resolution, will require the greatest civilian, the most wise master of public law, to discover; the consideration of these subjects, except so far as mentioning only circumstances which have existed, will be omitted. Neither does it appear very necessary to recur, in examining this question, in the view I intend to take of it, to writers or authorities, as they are called, on public law or laws of nations, because, if any time heretofore, there was a public law acknowledged and practised by all civilized nations, that law is, in these times, become obsolete and disused; and the great nations of the old world have severally adopted particular systems of law respecting other nations, adapted to their own several existing circumstances, and bottomed on principles different from those which heretofore were denominated principles of public law. When, therefore, in the course of these observations, said Mr. R., I may use the words "public law," my intention is to express thereby an idea of some system named public law, not the law of nature, which, gradually becoming obsolete, has been very little, if any, in use since the commencement of the American Revolution--a system which, notwithstanding it is often appealed to, if ever it did exist, is now only to be found in books, and not in practice. Neither is it intended in this case to draw into notice any diplomatic proceedings many years heretofore transacted, by way of argument, in support of what I may say on the subject of this resolution; inasmuch as the truth and merits of it do rest and depend on the Message of the President of the United States, and the documents accompanying the same, and the other documents relative thereto, which have been received from him since the commencement of this session of Congress, together with some other documents relative to the arrangement of April last, made between the American Government and the honorable David Montague Erskine, late Ambassador Extraordinary and Minister Plenipotentiary from His Britannic Majesty, near the United States. This resolution is not an answer to a Message from the President of the United States; there are not in it any words of relation between it and a message evidencing an expression or intended direction of that nature; neither are there in it any words manifesting an intention to transmit it to him as an address; for these and other reasons, which, if necessary, might be mentioned, it does not appear that this joint resolution can, with any propriety, be named an answer or response to a Message from the President, or an address to him. It may, therefore, be reasonably expected, that any objection raised against it, on the opinion of its being an answer to a Message from the President, or an address to him, will not prevail. This resolution is not a declaration of war; it is predicated on a specified conduct of an Ambassador Extraordinary and Minister Plenipotentiary of His Britannic Majesty, near the Government of the United States, and on the denial of the Executive Government of the United States to receive any further communications from him in consequence of that conduct. And it may be observed that, how ancient soever among nations the custom or usage of sending or receiving Ambassadors, Plenipotentiaries, and public Ministers of that kind may be, the custom or usage, it is reasonable to believe, is bottomed only on the great principle of humanity, and does not impose a perfect obligation either to send such minister, or to receive him, or to continue him after being received; therefore, not to send an Ambassador, Plenipotentiary, or public Minister--not to receive such Minister--to recall such Minister--or to refuse to receive any further communications from such Minister, is not a just cause of war; and it follows that the acting or not acting, in either of the cases, is not a declaration of war. True it is, that the resolution states, that "the Congress of the United States do solemnly pledge themselves to the American people, and to the world, to stand by and support the Executive Government in its refusal to receive any further communications from the said Francis James Jackson, and to call into action the whole force of the nation, if it should become necessary, in consequence of the conduct of the Executive Government in this respect, to repel such insult, and to assert and maintain the rights, the honor, and the interests of the United States;" but, it is to be observed, that that pledge goes only to the doing of certain things which may become necessary in consequence of the conduct of the Executive Government in respect to that thing which is alluded to. But if any gentleman is disposed to continue to this resolution the name of an answer to a Message from the President, or address to him, or to call it a declaration of war, he certainly may give it any name he pleases; and I hope, said Mr. R., that I may also have the liberty to give it a name that appears appropriate to it. [Here Mr. RHEA entered into a close examination of the correspondence between the British Minister and the American Secretary of State, to show, _first_, the insult to the American Government by charging it with falsehood; _secondly_, the falsity of that charge by showing that it was founded on false assumptions and continued:] The whole civilized world is a spectator in the discussion of this resolution; and all the civilized nations in the world are and will be anxiously desirous to know, whether the United States of America, after having hitherto, with impunity, suffered all the aggressions of Great Britain, and after having suffered Great Britain, with impunity, to impress thousands of their seamen, and retain them on board of their armed ships and vessels, and compelling them to fight against nations with whom the United States are at peace; after having suffered Great Britain, with impunity, to murder their citizens, and after having suffered Great Britain with impunity to attack their sovereignty, in case of the Chesapeake frigate, will, after all these outrages and hostile acts, tamely, meekly, and patiently, submit and bow down to the lowest degree of debased degradation, and suffer Francis J. Jackson, Ambassador Extraordinary and Minister Plenipotentiary of His Britannic Majesty, with impunity, to abuse their Executive Government, and to impute to it with impunity the detestable charge of untruth. TUESDAY, January 2, 1810. Another member, to wit, from Pennsylvania, ROBERT JENKINS, appeared, and took his seat in the House. WEDNESDAY, January 3. _Trade to the Baltic._ Mr. BURWELL said that he had given to the subject of our foreign relations as much consideration as he was capable of doing, and digested some plan which appeared to him best adapted to the present situation of the country. It would be recollected, however, that they had seen in the papers that France either had blockaded or did contemplate the blockade of all the ports not embraced in the British orders; and they had seen in the papers a paragraph intimating that a project existed to close the northern ports against all vessels but those of France. He conceived it necessary to call for any information which by possibility might be in possession of the Executive on this subject, as such information, if to be obtained, might have some influence upon his mind as to the course proper to be pursued; and therefore moved the following resolution: _Resolved_, That the President of the United States be requested to lay before this House any information he may possess relative to the blockade of the ports of the Baltic by France, and the exclusion of neutral vessels by Russia, Sweden, and Denmark. The motion was agreed to without opposition, and Mr. BURWELL and Mr. GARDNER appointed a committee to wait on the President accordingly. _Conduct of the British Minister._ The House resumed the consideration of the unfinished business of yesterday, being the resolution from the Senate approving the conduct of the Executive in refusing to receive any further communication from Francis James Jackson, &c. The resolution was ordered to be read a third time. To-morrow was named as the day on which it should be read a third time, and negatived, ayes, 32. The resolution was then ordered to be read a third time to-day. Mr. NEWTON.--Mr. Speaker: It is with regret, sir, I feel myself constrained to offer some observations on the resolution from the Senate now on its passage. I am not ignorant that I am trespassing on your patience, and that, at this late period of the discussion, I address you to no little disadvantage; but I derive, under such discouragement, great satisfaction in knowing that your politeness and indulgence are at all times the same. I lament, sir, that the discussion has not been confined to the subject which the resolution presents for consideration, but as I had no control over the debate, I am compelled to pursue it through the meanders it has taken. As silence on the observations which have been made, though on points foreign to the one in debate, may be ascribed to an acquiescence in their justness, I cannot refrain from apprising you that I hold myself bound to answer such as shall, in my judgment, demand an answer. This course will compel me to discuss points no ways related to the one before the House. I shall endeavor to atone for taking this range by giving to each subject a separate consideration, and by observing a due regard to brevity. With this apology, I hasten in the first instance to the discussion of the competency of Mr. Erskine's powers to conclude the provisional agreement of the 19th of April last. I put aside from this discussion the instructions of Mr. Erskine authorizing him to tender reparation for the attack on the Chesapeake, because his power so to act has not been distinctly questioned. The gentlemen who have preceded me on the same side of the question have sustained, I trust to your satisfaction, and that of the House, the competency of Mr. Erskine's powers to make and conclude the arrangement of the 19th of April last. Persuaded, as I am, that they have performed this task with great ability, I will not tire your patience by passing over the same ground, nor by citing the same authorities on which they relied to support their arguments. I will permit myself only to take up the discussion of the points which terminated their remarks. I will content myself with furnishing some authorities not pressed into service, in support of the positions taken by them. That Mr. Erskine was a Minister Plenipotentiary, cannot be denied; in that character he was received, and in that he acted until he was recalled, is equally true. The propositions made by him in that character were received and acted upon as the propositions of his Government. The Executive of the United States had no control over his private instructions; no right to demand an exhibition of them; they were given for the government of the Minister's conduct. If he acted in contravention of his secret orders, over which his power was absolute, he became responsible to his sovereign for his non-observance of them; but his public acts must necessarily be binding and obligatory, originating, as they must be considered, in the general and avowed powers of the Minister, exercised in conformity to his private instructions. If his secret instructions limit his general commission, he is bound honestly to apprise the Government with which he is negotiating of the fact. He ought to say, to this boundary I can go; beyond it I cannot pass. To illustrate this doctrine, which I hold to be sound and correct, I will give as an instance the chaste conduct of Mr. Monroe and Mr. Pinkney, who, previous to affixing their signatures to the treaty concluded by them with the British Commissioners, publicly apprised the Commissioners that they had no authority to bind the Government of the United States, as their instructions did not permit them to conclude a treaty which should not contain stipulations against impressments. The fate of that treaty is known. It was rejected. The British Government could not complain, because it was previously informed that the Ministers of the United States had no power to form such a treaty. Mr. Erskine never entertained a doubt but that his powers were competent to the formation of the arrangement of April last. He unhesitatingly declared, in submitting his propositions for suspending as to the United States the operation of the Orders in Council, that he was commanded by his Majesty to submit them to the consideration of the Executive of the United States. I will prove this statement by his letter of April 18, 1809, and others, addressed to the Secretary of State. He says: "The favorable change in the relations of His Majesty with the United States, which has been produced by the act usually termed the non-intercourse act, passed at the last session of Congress, was also anticipated by His Majesty, and has encouraged a further hope that a reconsideration of existing differences might lead to their satisfactory adjustment. On these grounds and expectations, I am instructed to communicate to the American Government His Majesty's determination of sending to the United States an Envoy Extraordinary, invested with full powers to conclude a treaty on all points of the relations between the two countries. In the mean time, with a view to the attainment of so desirable an object, His Majesty would be willing to withdraw his Orders in Council of January and November, 1807, so far as respects the United States, in the persuasion that the President would issue a proclamation for the renewal of the intercourse with Great Britain, and that whatever difference of opinion should arise in the interpretation of the terms of such an agreement, will be removed in the proposed negotiation." In another letter, of April 19, he says: "In consequence of the acceptance by the President, as stated in your letter of the 18th instant, of the proposals made by me on the part of His Majesty, in my letter of the same day, for the renewal of the intercourse between the respective countries, I am authorized to declare that His Majesty's Orders in Council of January and November, 1807, will have been withdrawn, as respects the United States, on the 10th day of June next." (1809.) The above extracts from Mr. Erskine's letters leave us in no suspense as to the opinion he had formed of his instructions. In this settled belief that he had conformed strictly to the instructions of his Court, we find him so late as June 15, 1809, when he notified to the Secretary of State the new Order in Council issued on the 26th of April last. In this letter he says: "In consequence of official communications sent to me from His Majesty's Government, since the adoption of that measure, I am enabled to assure you that it has no connection whatever with the overtures (of the 19th of April, 1809) which I have been authorized to make to the Government of the United States, and that I am persuaded that the terms of the agreement so happily concluded by the recent negotiation, will be strictly fulfilled on the part of His Majesty. The internal evidence of the order itself would fully justify the foregoing construction, and, moreover, it will not have escaped your notice, that the repeal has not thereby been made of the orders of the 7th of January, 1807, which, according to the engagement I have entered into on the part of His Majesty, is to be abrogated with the other orders, in consequence of the adjustment of differences between the two countries, and the confidence entertained of a further conciliatory understanding." Thus it appears that Mr. Erskine, from communications, subsequent to the 26th of April, from this Government, is decidedly of opinion that he acted within the pale of his instructions. His language is free from ambiguity. He says: "In consequence of _official communications_ sent to me from His Majesty's Government, since the adoption of the order of the 26th of April, I am enabled to assure you it has no connection whatever with the terms of agreement concluded by the recent negotiation." Nothing can be clearer than that his opinion was made up on a full consideration of all the instructions received by him from his Government. This must be evident to the most superficial observer on reading the following extract from a letter of the 14th August, 1809, addressed by him to the Secretary of State. It is as follows: "Under these circumstances, therefore, finding that I could not obtain the recognitions specified in Mr. Canning's despatch of the 23d of January, (which formed but one part of his instructions to me,) in the formal manner required, I considered that it would be in vain to lay before the Government of the United States the despatch in question, which I was at liberty to do _in extenso_, had I thought proper. But as I had such strong grounds for believing that the object of His Majesty's Government could be attained, though in a different manner, and the spirit, at least, of my several letters of instructions be fully complied with, I feel a thorough conviction on my mind that I should be acting in conformity with His Majesty's wishes, and, accordingly, conclude the late provisional agreement on His Majesty's behalf with the Government of the United States." The British Government could not, from this view, disavow the act of its Minister without incurring, and that justly, the charge of bad faith. To give support and nerve to this inference, I will read a passage from an author of great celebrity, _Burlamaqui_. The author says: "If he who has a commission to treat has kept within the bounds of the power annexed to his office, though he acts contrary to his private instructions, the sovereign is to abide by what he has done; otherwise, we could never depend on engagements contracted by proxy." This authority is full, and in point; it covers the whole ground; it leaves no fissures through which crafty politicians can make an escape. On the reputation of the British Government it fixes a blot which nothing short of the power of time can efface. Past transactions are worthy of remembrance, and sometimes of repetition. The chameleon may take the hue of surrounding objects, but his change of color does not new-model his figure, form, or character. Let us, for a moment, bring to our recollection the occurrences which took place, and the orthodox opinions which were held, at the time when the honor and dignity of this nation were deeply wounded, (a wound not yet healed,) in the attack of the Chesapeake; when the blood of American citizens was wantonly shed, and when the British squadron, after the commission of an act so atrocious, in violation of the jurisdiction of the United States, anchored in Hampton Roads and interrupted the regular communication between Norfolk and other places. After having taken a review of facts, let us compare the opinions of that day with those subsequently delivered; and, by the standard of consistency, test them. The President, soon after the commission of those outrages, issued his proclamation, interdicting the entrance of the waters of the United States to the public armed vessels of Great Britain. That act of the President was considered as just and proper, as flowing from moderation and wisdom. The propriety of it was defended on the declaration to the Executive by Mr. Erskine, that it was his firm belief that Admiral Berkeley had acted without orders. Keep in force the proclamation, was the language of that memorable day, until reparation, ample and satisfactory, should be made. Such was the state of the public mind. Mr. Rose arrived; his mission, instead of having the salutary tendency of removing the irritations excited, was eminently calculated to nurture and increase them. Insults were added to injuries. Before he would deign to make known to the President the nature and extent of the reparation he was authorized to offer, he demanded the revocation of the President's proclamation; in plain terms informing this nation that its Government should make concessions to His Majesty for using precautionary measures against the lawless acts of his officers, as a prerequisite to a tender of the reparation His Majesty had condescended through him to offer. This new mode of redress proving no ways satisfactory, Mr. Rose's mission terminated. No sooner was it known that the negotiation with Mr. Rose proved abortive, in consequence of the inadmissible demands made by him, as already stated by me, than the President was openly accused as being the cause of it, by adhering to a "mere punctilio." Thus, sir, we see, that no Republican President can do right, when his actions are viewed through the medium of party spirit. Mr. STANLEY said he did not flatter himself he could add any thing to the information which the House already possessed on this subject. Yet, as a measure was about to be adopted, which, without the possibility of yielding any advantage, would, in his opinion, fix a stain on the national character, and put at hazard the peace and prosperity of the country, he felt impelled by the imperious call of duty, to raise his feeble voice against it. Permit me here, said Mr. S., to express the surprise and regret with which I have heard observations from those who support the resolution, which, having no connection with the resolution itself, are calculated, if not intended, to excite the passions of the House or of the people; to furorize the public mind; to mislead our judgments in deciding the question, and to obtain a result rather from passion than reason. I allude to the repeated recital of British outrages, the bombardment of Copenhagen, and the attack on Constantinople. A calm discussion of the question itself, would probably lead to as correct a decision, and be not less honorable to the American Congress. The danger of foreign influence has been mentioned to us, by way of caution, I presume. A solicitude on this point can be but commendable, though I hope unnecessary. It may be the fate of this country to be cursed with men whose ill-directed ambition, and predominant selfish views, lead them to support the interest and the designs of foreign nations, though adverse to the interests and honor of their own. If such there be, let them be marked as objects of suspicion, scorn, and contempt. It has also been the fate of other countries, and may be the misfortune of this, to possess in its bosom, and to cherish in its confidence, men, who from an equally base and corrupt self-love and ill-directed ambition, become supple courtiers, political sunflowers, cringing demagogues; who, worshipping the idol power, whether in the hands of a military commander, a protector, or a consul, tender an implicit obedience and united support to every measure which emanates from the Executive, the source of office and profit. Such men bring upon a country the curses of undue domestic influence. Not to know and not to fear the dangers both of foreign and domestic influence, is to close our eyes on the light of history, and to disregard the testimony of ages. The States of Greece, as the gentleman from Virginia (Mr. EPPES) reminds us, fell from foreign influence; the unhappy Kingdom of Spain at this moment groans and bleeds from the same cause. And, sir, from domestic influence, Rome had her Cæsar, England her Cromwell, and France now drags the chains of Bonaparte. Should it ever become the settled doctrine in this country, that the opinions and the measures of the Executive are entitled to our prompt acquiescence and blind support; that, like the devoted soldier, a mere military machine, we are not to pause over a vote; that free discussion of the merits of the Executive shall authorize suspicion of the purity of the citizen; the time will be fast hastening when a throne shall be erected upon the ruins of the Constitution of the United States, and the name of America be added to the list of those Republics which have "risen like the rocket, and fallen like the stick." Whether either of these parties exist in this country, I need not at this time inquire; no circumstance could render such an inquiry in this place other than unpleasant. I have suggested the possibility of their existence, and their evils, with a view equally pure, I hope, with that of those who have before alluded to them, and to excite a caution which well merits the attention of the American people. Associated in this House with gentlemen, all of whom, I am to presume, are actuated by the same love of country; who alike feel the obligations of honor, conscience, regard to the constitution and responsibility to our constituents--I cannot but believe they act on this occasion with motives as pure as my own. Yet, sir, feeling myself bound by these high sanctions to pursue the course pointed out by my own judgment, and the dictates of my own conscience, I am compelled to declare, that I disapprove the conduct of the administration in the affair with Mr. Jackson, and that I am decidedly opposed to the resolution before us. From the view I have taken of the correspondence between Mr. Smith and Mr. Jackson, my mind is satisfied-- That the letters of Mr. Jackson do not contain the insult to our administration which is imputed to them by the resolution. That, if they did, the Congress of the United States are not required either by duty or policy to interfere in the business--and that if they will interfere, the resolution under consideration is improper. On each of these points I will submit a few observations. In regard to the insult said to be contained in Mr. Jackson's letters, my remarks shall be brief, with no other reference to the letters already so often repeated, as to have become "dull as a tale twice told," than I may conceive necessary to be intelligible. The offensive idea "that the Executive Government of the United States had a knowledge that the arrangement lately made by Mr. Erskine in behalf of his Government with the Government of the United States, was entered into without competent powers on the part of Mr. Erskine for that purpose," is said in the resolution to be conveyed in Mr. Jackson's letter of the 23d of October, and to be repeated in that of the 4th of November. Yet, as if it was on all hands admitted that no such idea could be found in these letters, all who have most anxiously desired to find it, have endeavored to establish it by recurring to Mr. Jackson's letter of the 11th of October, and there point us to that part of the letter, where Mr. Jackson, in reply to Mr. Smith's declaration, that an explanation was expected of the grounds of the disavowal by His Britannic Majesty of the arrangement made between Mr. Smith and Mr. Erskine, informs Mr. Smith, that he had seen with pleasure the forbearance of Mr. Smith, to complain of this disavowal, "inasmuch as you could not but have thought it unreasonable to complain of the disavowal of an act done under such circumstances as could only lead to the consequences that have actually followed." He adds, "It was not known when I left England whether Mr. Erskine had, according to the liberty allowed him, communicated to you _in extenso_ his original instructions; it now appears that he did not. But in reverting to his official correspondence, and particularly to a despatch addressed on the 20th of April to His Majesty's Secretary of State for Foreign Affairs, I find that he there states, that he submitted to your consideration the three conditions specified in those instructions, as the groundwork of an arrangement which, according to information received from this country, it was thought in England might be made, with a prospect of great mutual advantage. Mr. Erskine then reports, _verbatim et seriatim_, your observations upon each of the three conditions, and the reasons which induced you to think that others might be substituted in lieu of them. It may have been concluded between you that these latter were an equivalent for the original conditions; but the very act of substitution evidently shows that those original conditions were in fact very explicitly communicated to you, and by you of course laid before the President for his consideration. I need hardly add, that the difference between these conditions and those contained in the arrangement of the 18th and 19th of April, is sufficiently obvious to require no elucidation; nor need I draw the conclusion, which I consider as admitted by all absence of complaint on the part of the American Government, viz: that under such circumstances His Majesty had an undoubted right to disavow the act of his Minister." As the offensive idea is alleged to be an allusion to the circumstances under which the arrangement with Mr. Erskine was concluded, which justified the King in disavowing it; intimated to be known to our administration at the date of this letter; it is necessary to search, from the evidence before us, what those circumstances were upon which the King justified his disavowal; these found, we shall be at no loss to fix Mr. Jackson's allusion, and then to inquire whether these circumstances thus alluded to, were in fact known to our administration. It appears from the documents before us, that the King's Order in Council of the 24th of May, 1809, announcing the provisional agreement concluded by Mr. Erskine and the disavowal of it, assigns as the sole ground of the disavowal, that the said agreement "was not such as was authorized by His Majesty's instructions." And Mr. Pinkney, on the 28th of May, informs Mr. Smith that the British Minister, Mr. Canning, had in their interview on the 25th of May declared "that the British Minister (Mr. Erskine) had acted in his late negotiation and engagements with you, not only without authority, but in direct opposition to the most precise instructions;" that these facts were communicated by Mr. Pinkney, and known to our administration before the arrival of Mr. Jackson, appears from the correspondence between Mr. Smith and Mr. Erskine in July and August. Mr. Jackson also, in his letter of the 11th of October, says that his Government "with frankness, promptitude, and a most scrupulous regard to national honor, gave notice to the American Minister in London of the disavowal, of the motives of it, and of the precautions spontaneously taken by His Majesty to prevent any loss or injury accruing to the citizens of the United States from an agreement, however unauthorized, made in His Majesty's name." And in his letter to Mr. Smith, 23d of October, explicitly declares "His Majesty was pleased to disavow the agreement concluded between you and Mr. Erskine, because it was concluded in violation of that gentleman's instructions, and altogether without authority to subscribe to the terms of it." And to dispense with a recital of each particular in which the instructions were disregarded, Mr. Jackson adds, "These instructions I now understand by your letter, as well as from the obvious deduction which I took the liberty of making in mine of the 11th instant, were at the time in substance made known to you; no stronger illustration, therefore, can be given of the deviation from them which occurred, than by a reference to the terms of your agreement." We thus find the British Government on every occasion, and through every agent, assigning the violation of instructions, and the want of authority in Mr. Erskine to conclude the agreement, as the sole ground of the disavowal, and relying on that ground, and no other, to shield them from the charge of perfidy. With this evidence before us; with the admission of Mr. Jackson "that the instructions were not made known _in extenso_;" with the correspondence of Mr. Smith and Mr. Erskine showing the knowledge of our administration of the instructions to Mr. Erskine and of the grounds of the disavowal of his arrangement prior to the arrival of Mr. Jackson in the United States, does it consist with candor and good sense; is it not a palpable violation of both, so to torture the language of Mr. Jackson in his letter of the 11th of October, in allusion to the circumstances which "could only lead to the disavowal," and to the knowledge of them by our administration, which prevented their complaints to him on his arrival, as to make them convey an idea that a distinct and different ground of disavowal existed than that which his Government and himself had before repeatedly assigned; to impute to him the insinuation that the restricted authority of Mr. Erskine was known at the time of the arrangement, when he had explicitly declared "that the instructions were not made known _in extenso_," and thus to fix upon him the absurdity of contradicting himself? Such construction, and such an imputation, in my opinion, is at war with every sound rule of construction, and every honorable principle of just and fair dealing. It is worthy the observation of those gentlemen who so clearly see an insult in this letter of the 11th of October, that they have found what had escaped the jealous perspicacity of Mr. Smith, and the patient research of the draughter of the resolution; since Mr. Smith, in his reply of the 19th of October, gives no intimation of any thing offensive in this letter, and the resolution confines the insulting idea to the letter of the 23d of October. We come now to the letter of the 23d of October, in which, according to the resolution, is contained the "insolent and indecorous expressions, conveying the idea that the Executive Government of the United States had a knowledge that the arrangement lately made by Mr. Erskine with the Government of the United States was entered into without competent power on the part of Mr. Erskine." The offensive idea is said to be found in the following part of Mr. Jackson's letter: "I have no hesitation in informing you that his Majesty was pleased to disavow the agreement concluded between you and Mr. Erskine, because it was concluded in violation of that gentleman's instructions, and altogether without authority to subscribe to the terms of it. These instructions, I now understand by your letter, as well as from the obvious deduction which I took the liberty of making in mine of the 11th instant, were at the time in substance made known to you; no stronger illustration, therefore, can be given of the deviation from them which occurred than by a reference to the terms of your agreement." There is no equivocation in this language. He says the instructions were made known _in substance_--an expression which from its very terms excludes the idea of being made known in full extent; and that it is true, as Mr. J. here alleges, that the substance of Mr. Erskine's instructions were made known, appears from Mr. Smith's letter of the 19th of October. "Certain it is that your predecessor did present for my consideration the three conditions which now appear in the printed document; that he was disposed to urge them more than the nature of two of them (both palpably inadmissible, and one of them more than merely inadmissible) could permit, and that on finding his first proposals unsuccessful, the more reasonable terms comprised in the arrangement respecting the Order in Council were adopted." And Mr. Erskine himself declared to his Government, 20th of April, as stated by Mr. Jackson to Mr. Smith, 11th of October, and not questioned by him, "that he had submitted to the consideration of Mr. Smith the three conditions specified in his instructions, as the groundwork of an arrangement," and adds the reasons which induced Mr. Smith to think "that others might be substituted in lieu of them." These expressions of Mr. Jackson are unequivocal, free from obscurity, and cover no insinuation. They assert a single fact, the existence of which is established by the letters of Mr. Smith himself. To find in them a meaning "conveying the insolent and indecorous idea that our Government knew of Mr. Erskine's restricted authority," is to give to language a signification different from that heretofore received, and to exert a strength of imagination to which I have no pretensions. But in the letter of Mr. Jackson of November 4th, is said, by the resolution, to be found "the still more insolent and affronting "repetition of the same insinuation. In the conclusion of this letter Mr. J. complains, not intemperately, of the liberty Mr. Smith claimed of styling his remarks "irrelevant and improper," a freedom which I should regret to believe would be justified by our Secretary's ideas of decorum. Mr. Jackson concludes in the words which are said to contain this offensive repetition of the imaginary insult: "You will find in my correspondence with you, that I have carefully avoided drawing conclusions that did not necessarily follow from the premises advanced by me, and least of all should I think of uttering an insinuation where I was unable to substantiate a fact." If Mr. Jackson had really uttered an unfounded insinuation, he here certainly repeats it, because he adheres to all he had before said, and retracts nothing. But if, as I believe, he had not made any insinuations, but had directly and obviously referred to facts which were either admitted or had been, substantially proved, and more especially as he has not anywhere made the insinuation charged, "that our Government were acquainted with Mr. Erskine's restricted authority," the conclusion seems to be irresistible, that he could not here repeat an insinuation which he had not previously made. This paragraph obviously means that he had abstained from such an insinuation because "he was unable to substantiate the fact." Nor can I conceive how this declaration could be offensive to Mr. Smith, unless received by him as presenting a contrast to his own deportment, in which case he owes his feelings to his own conscious sensibility. Were it, however, otherwise, and if, instead of an _insinuation_ so hidden that a Secretary of State only can discover it, Mr. Jackson had given a direct and unequivocal insult, the Congress of the United States are not required either by duty or policy to interfere. The constitution has wisely created different branches of the Government, committed to each its separate cares and duties, made each independent of the other, intending thereby to secure the separate deliberation and separate responsibility of each. To attain its blessings, these valuable objects of the constitution ought not to be defeated. To the President alone is given the power to receive Ministers and to treat with them, and as in the course of this duty he becomes personally interested in the deportment of foreign Ministers, if they demean themselves disrespectfully towards him, he is clothed with the power to break off intercourse with them at pleasure, and so far to suspend their ministerial functions. This power has been repeatedly exercised by our Presidents, as the constitution intended it should be, upon their own responsibility. And it is the highest policy of this Government, in order to obtain the advantages of the free judgment and decision of the President, so to conduct towards him that he should learn to act without fear of the censure of Congress on the one hand, and without any hope on the other, that their countenance shall shelter his measures from scrutiny. This policy, and the strict inviolability of the Executive power in all cases of treaty, were emphatically settled in the case of Jay's Treaty, in which the President, (whose independent example deserves more respect than it has met from his successors), standing upon his own responsibility refused to submit to the House of Representatives any papers relating to that negotiation, except the treaty itself. Yet if the plan proposed by these resolutions be adopted; if we by formal resolutions approve the conduct of the President in an affair so exclusively his own, as that of the rupture with Mr. Jackson, may we not on some future occasion, as observed by my honorable colleague, (Mr. MACON,) claim the right of censuring in matters equally within his sole and peculiar province? If, then, we are to interfere with Executive duties, not merely as sycophants, applauding his every act, but as freemen condemning what we do not approve, the inevitable consequence must be, a conflict between the Executive and Legislative Departments, in which the wounds of either can only be inflicted through the constitution; or (an issue equally fatal) the advantages intended to be derived from separate deliberation, distinct responsibility, and mutual jealousy and watchfulness of the separate departments disappear, in a miserable complaisance of acting by previous concert, and thus propping each other before the people. The question was then taken on postponement as moved by Mr. GARDENIER, and negatived without a division. And at length, at half past five o'clock, the main question on the final passage of the resolution was taken, and carried--yeas 72, nays 41, as follows: YEAS.--Lemuel J. Alston, Willis Alston, jr., William Anderson, Ezekiel Bacon, David Bard, Burwell Bassett, William W. Bibb, Adam Boyd, John Brown, Robert Brown, William A. Burwell, William Butler, Joseph Calhoun, Matthew Clay, Howell Cobb, James Cochran, James Cox, William Crawford, Richard Cutts, John Dawson, Joseph Desha, John W. Eppes, William Findlay, Jonathan Fisk, Meshack Franklin, Barzillai Gannett, Gideon Gardner, Thomas Gholson, jr., Peterson Goodwyn, William Helms, James Holland, Benjamin Howard, Jacob Hufty, Robert Jenkins, Richard M. Johnson, Thomas Kenan, William Kennedy, John Love, Aaron Lyle, Robert Marion, Samuel McKee, Alexander McKim, William Milnor, John Montgomery, Nicholas R. Moore, Jeremiah Morrow, Thomas Newbold, Thomas Newton, John Nicholson, Peter B. Porter, John Rea of Pennsylvania, John Rhea of Tennessee, Matthias Richards, John Roane, Erastus Root, John Ross, Ebenezer Sage, Thomas Sammons, Ebenezer Seaver, Adam Seybert, Dennis Smelt, John Smilie, George Smith, Henry Southard, John Taylor, John Thompson, Uri Tracy, Charles Turner, jr., Robert Weakley, Robert Whitehill, and Robert Witherspoon. NAYS.--Daniel Blaisdell, James Breckenridge, John C. Chamberlain, William Chamberlin, Epaphroditus Champion, Martin Chittenden, Samuel W. Dana, John Davenport, jr., William Ely, James Emott, Barent Gardenier, Thomas R. Gold, William Hale, Nathaniel A. Haven, Jonathan H. Hubbard, Richard Jackson, jr., Herman Knickerbacker, Joseph Lewis, jr., Edward St. Loe Livermore, Robert Le Roy Livingston, Nathaniel Macon, Archibald McBryde, Jonathan O. Mosely, Jos. Pearson, Benjamin Pickman, jr., Timothy Pitkin, jr., Elisha R. Potter, Josiah Quincy, Richard Stanford, John Stanley, William Stedman, James Stephenson, Lewis B. Sturges, Jacob Swoope, Samuel Taggart, Benjamin Tallmadge, Jabez Upham, Killian K. Van Rensselaer, Laban Wheaton, Ezekiel Whitman, and James Wilson. [On this vote were absent 27 members, viz: Messrs, CAMPBELL, CLOPTON, COOK,* CRIST, DENNING,* GOLDSBOROUGH, GRAY, HEISTER, J. G. JACKSON, JONES, _Key_, LYON,* MATTHEWS, MILLER, T. MOORE, MUMFORD,* NELSON, RANDOLPH,* SAWYER, SHAW, SHEFFEY, _J. Smith_, S. SMITH, _Troup_, VAN DYKE,* _Van Horne_, and WYNN*; of whom those marked (*) have not appeared in their seats during the present session, and those in _italic_ are known to be absent from the city.] The House then adjourned, at a quarter before six, after a session of nineteen hours, during the whole of which time the Speaker presided in the Chair with dignity and moderation, to Friday next. FRIDAY, January 5. Another member to wit, from Delaware, NICHOLAS VAN DYKE, appeared, and took his seat in the House. _Claim of Elizabeth Hamilton._ Mr. JOHNSON, from the Committee of Claims, made a report on the petition of Elizabeth Hamilton, referred on the 5th ultimo; which was read, and referred to a Committee of the Whole on Wednesday next. The report is as follows: That it is stated by the petitioner, that her late husband, Alexander Hamilton, served as Lieutenant Colonel in the Army of the United States during the Revolutionary war; that, in common with other officers he was entitled to five years' full pay as commutation for half-pay during life; that her husband, being in Congress at the time the resolution passed making this provision in favor of the officers of the Revolution, in a letter to the Secretary of War he relinquished his claim to commutation; and the petitioner prays for the amount of said commutation. It does not appear, from any evidence from the Secretary of War or of the Treasury, that the late Colonel Hamilton ever did relinquish his right to half-pay or commutation, nor can the committee believe that it would be proper or generous that such relinquishment should be relied on as a bar to a just claim upon the United States for meritorious services against the representatives of such claimant. It appears, from a letter from the Secretary of the Treasury, that the late Colonel Hamilton received pay as an officer up to the end of February, 1782, and no later. And there is no evidence upon the Treasury books, or books of the War Office, whether at this or what period Colonel Hamilton resigned. The committee, however, have been furnished with a document, which induces the belief that Colonel Hamilton did not resign his commission until after the 28th day of October, 1783, which document is in these words: "In pursuance of an act of Congress of the 30th day of September, 1783, Lieutenant Colonel Hamilton is to take rank as Colonel by Brevet, in the Armies of the United States of America. Signed at Princeton, October 28, 1783, by Elias Boudinot, President," &c. The committee are of opinion, that the resolution of Congress, upon a liberal construction, did not require actual service, and that the officer should be in the receipt of his pay to entitle him to commutation; but that he should have a commission, and be at all times liable to be called on to perform the duties of his station. The committee are confirmed in this opinion, when they recollect the situation of the United States and the Army in the year 1783, and in fact, from the capture of Cornwallis and his Army at Little York, in the State of Virginia, in the year 1781. But this claim is, like all other claims of this description, barred by the statute of limitation. The following resolution is offered: _Resolved_, That the prayer of the petition ought not to be granted. MONDAY, January 15. Two members, to wit: from New York, GURDON S. MUMFORD, and from Kentucky, MATTHEW LYON, appeared, and took their seats in the House. TUESDAY, January 16. Another member, to wit, from South Carolina, RICHARD WYNN, appeared, and took his seat in the House. WEDNESDAY, January 17. A new member, to wit, DAVID S. GARLAND, returned to serve as a member of this House for the State of Virginia, in the place of Wilson Carey Nicholas, resigned, appeared, produced his credentials, was qualified, and took his seat. WEDNESDAY, January 31. _Officers of the Revolution._ Mr. NELSON, from the committee appointed on the twenty-fourth instant, made a report on the several petitions of the surviving officers of the late Revolutionary Army; which was read, and referred to a Committee of the Whole on Monday next. The report is as follows: That, by a resolution of Congress of the 15th of May, 1778, all military officers who then were, or should thereafter be, in the service of the United States, and who should continue in service during the war, and not hold any office of profit under the United States, or any of them, should, after the conclusion of the war, be entitled to receive, annually, for the term of seven years, if they should live so long, one-half of the then pay of such officers: provided that no general officer of the cavalry, artillery or infantry, should be entitled to receive more than the one-half part of the pay of a colonel of such corps, respectively; and, provided that the said resolution should not extend to any officer in the service of the United States, unless he should have taken an oath of Allegiance, and should actually reside within some one of the United States. That, by a resolution of Congress of the 11th of August, 1779, it was resolved that the half-pay provided by the aforesaid resolution of the 15th of May, 1778, should be extended to continue for life. That, by a resolution of Congress of the 21st of October, 1780, it was provided that the officers who should continue in the service to the end of the war should be entitled to half-pay during life, to commence from the time of their reduction. That, by a resolution of Congress of the 17th day of January, 1781, all officers in the hospital department, and medical staff, thereinafter mentioned, who should continue in service until the end of the war, or be reduced before that time as supernumeraries, should be entitled to receive during life, in lieu of half-pay, the following allowances, viz: The director of the hospital, equal to the half-pay of a lieutenant-colonel; chief physician and surgeons of the army and hospital, and hospital physicians and surgeons, purveyor, apothecary, and regimental surgeons, each equal to the half-pay of a captain. That, by a resolution of Congress of the 22d day of March, 1783, it was provided that such officers as were then in service, and should continue therein until the end of the war, should be entitled to receive the amount of five years' full pay in _money_, or securities on interest at six per centum per annum, as Congress should find most convenient, instead of the half-pay promised for life by the resolution of the 21st day of October, 1780; the said securities being such as should be given to the other creditors of the United States: provided it should be at the option of the lines of the respective States and not of officers individually in those lines, to accept or refuse the same; and provided, also, that their election should be signified to Congress, through the Commander-in-Chief, from the lines under his immediate command, within two months, and through the commanding officer of the Southern Army, from those under his command, within six months from the date of the resolution. That the same commutation should extend to the corps not belonging to the lines of any particular State, and who were entitled to half-pay as aforesaid: the acceptance or refusal to be determined by the corps, and to be signified in the same manner, and within the same time, as above mentioned; that all officers belonging to the hospital department, who are entitled to half-pay by the resolution of the 17th of January, 1781, might collectively agree to accept or refuse the aforesaid commutation, signifying the same through the Commander-in-Chief, within six months; that such officers as had retired at different periods entitled to half-pay for life, might, collectively, in each State of which they are inhabitants, accept or refuse the same; their acceptance or refusal to be signified by agents authorized for that purpose, within six months; that with respect to such retiring officers, the commutation, if accepted by them, should be in lieu of whatever might be then due to them since the time of their retiring from service, as well as what might thereafter become due; and that as soon as their acceptance should be signified, the Superintendent of Finance should be, and he was thereby, authorized to take measures for the settlement of their accounts accordingly, and to issue to them certificates bearing interest at six per cent.; that all officers entitled to half-pay for life, not included in the preceding resolution, might, also, collectively, agree to accept or refuse the aforesaid commutation, signifying the same within six months from the passage of said resolution. The petitioners state, and the fact is of too general notoriety to be disputed, that although they confidently expected, at the time they were compelled from imperious necessity to accept the sum in gross in lieu of half-pay for life, that it would be paid to them in reality, and not by a fresh promise without any sufficient guarantee for its due performance, yet they were compelled to receive certificates, which, for want of any specific provision for the payment of them, or the interest accruing on them, were immediately depreciated to five for one, and, by degrees, to ten for one, in exchange for money. They therefore pray that half-pay for life, to commence from the time of the reduction of the Army, may be granted to them, according to the solemn stipulations entered into with them by Congress, by the resolutions before referred to; deducting therefrom the five years' full pay received by them in depreciated paper, by way of commutation. It is well known to your committee, and to the whole nation, that the far greater part of the officers were compelled by hard necessity to dispose of their commutation certificates at prices infinitely below their nominal amount; that this did not proceed from want of patriotism, of which they had beforehand given proofs most unequivocal, or of want of confidence in their Government; but that, after having spent the vigor of their manhood in the service of their country, they returned to the walks of civil life, (many of them maimed, and scarcely able to halt along,) ignorant of what was passing or likely to pass in the councils of their country; the griping hand of poverty bore hard upon them; and, unacquainted as they necessarily were with civil affairs, they fell an easy prey to the wiles of the artful and insidious speculator, who was lying in wait to fatten upon their hard earnings. Under circumstances like these, it would have been strange indeed, if they had kept their certificates in their pockets. No, the thing was impracticable; go they must, for whatever they would bring, and be the consequences whatever they might. Upon the whole, the committee are of opinion that the contract entered into by Congress with the officers of the late Revolutionary Army, for giving them half-pay for life, has not been substantially complied with by the Government. They, therefore, recommend the following resolution: _Resolved_, That the prayer of the petitioners is reasonable, and ought to be granted. FRIDAY, February 9. _Robert Fulton and Torpedoes._ The following letter was laid before the House: "KALORAMA, _February 9, 1810_. "SIR: Having published a pamphlet explaining my experience on the practice and effects of torpedoes, I beg leave to present you, and each member of the House of Representatives, one copy. Should the House consider this subject of sufficient interest to merit further explanation, I shall be happy to give a lecture at such time and place as may be most convenient, in which I will exhibit the various modes of attack with torpedoes and harpoon guns, as prepared for action, with such models and demonstrations as will lead to a clear understanding of the subject. "I have the honor to be, &c., "ROBERT FULTON. "Hon. SPEAKER _House of Reps._" Leave was given to present the pamphlets mentioned in the above letter, as requested. _Navigation of the Mobile._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the House of Representatives of the United States_: I transmit to the House a report of the Secretary of State, complying with their resolution of the 22d of January. JAMES MADISON. FEBRUARY 9, 1810. DEPARTMENT STATE, _Feb. 8, 1810_. The Secretary of State, to whom the President has been pleased to refer the resolution of the House of Representatives of the 22d of last month, has the honor to state that it appears from the records in this department, that in the years 1801 and 1802, the Executive had endeavored to obtain, for the citizens of the United States residing on the waters of Tombigbee and Alabama rivers, the free navigation of the Mobile river to its confluence with the ocean--first, by claiming this navigation as a natural right, sanctioned by the general principles of the law of nations applicable to rivers similarly situated; and, secondly, by endeavoring to purchase the country held by Spain on the Mobile. These efforts were made before it was known that Spain had ceded Louisiana to France, and consequently before the purchase of that province by the United States. Since that purchase, the country held by Spain on the Mobile has been claimed as being included therein. The Spanish Government, having objected to this claim in a manner which justified a belief that the question would not be soon decided, our Minister at Madrid was instructed again to claim the free navigation of the Mobile under the general principles of the law of nations, and to represent to His Catholic Majesty the propriety and necessity of giving orders to his officers not to interrupt the free communication with our Territories through the waters of the Mobile. In addition to what has been done through this department, it appears that the Governor of the Orleans Territory, and other officers of the United States, have endeavored to induce the Spanish authorities on the Mobile to abstain from exacting duties on the passage of our merchandise or produce up or down that river. Notwithstanding, however, every thing which has been done, it is understood that these authorities have continued to exact (with some occasional relaxations) a duty of twelve per cent. "on all articles of the growth or manufacture of the United States, which are conveyed through said river to and from the city of New Orleans." All which is respectfully submitted. R. SMITH. MONDAY, February 12. _Torpedoes._ Mr. DAWSON.--On hearing the Journal read, I find that on last Friday a letter was received by the Speaker from Mr. Fulton. What merit is due to his invention I will not pretend to say; but I know Mr. Fulton to be a man of science and successful experiment; of which he has given proofs, both in Europe and this country. It seems to me that some attention ought to be paid to his communication. I therefore move you that his letter be referred to a select committee. Mr. Dawson's motion was agreed to, and a committee appointed, consisting of Messrs. DAWSON, TAYLOR and BACON. WEDNESDAY, February 14. _Torpedoes._ Mr. DAWSON made the following report: The committee to whom was referred a letter from Robert Fulton to the Speaker of the House of Representatives, dated on the 9th instant, beg leave to report, in part, that at their request Mr. Fulton attended the committee on this morning, and explained to them his views of the uses and effects of torpedoes, on which the committee forbear to give an opinion, and offer the following resolution: _Resolved_, That, when the House shall adjourn on Friday next, it will adjourn to meet on Monday; and that Mr. Fulton have the use of this Hall on Saturday, for the purpose of exhibiting the torpedoes and delivering a lecture on their practice and utility. Mr. RHEA moved to recommit the report to the committee who reported it, with a view to obtaining a report on the merits of it.--Motion negatived. Mr. LIVERMORE called for a division of the resolution reported by the committee, so as to take a question separately on the words, "RESOLVED, That, when the House shall adjourn, it adjourn to meet on Monday." The question on this part of the resolution was decided by yeas and nays--yeas 90, nays 29. Mr. LIVERMORE moved to postpone the further consideration of the subject indefinitely. A desultory debate took place on these various questions. It was said that the Hall of the House of Representatives was exclusively appropriated to Legislative purposes, and that, at this time, to appropriate it to the purpose of experimental lectures, would afford a precedent which would be injurious; that such a measure, if admissible at all, should not be taken unless the House were convinced of the practicability of the system proposed to be illustrated, because it would hold out the idea that the House of Representatives had sanctioned it. It was also said that this system could quite as conveniently be illustrated in one of the other apartments of the Capitol, without spreading on the Journals a formal record allowing Mr. Fulton the use of this House. In reply, it was said, that this was an invention which promised to be of great public utility, and it was but reasonable, as the inventor was known to be a scientific man, that he should have an opportunity of demonstrating its efficacy, when he has offered his services for that purpose. If it succeeded, it might be a saving of many millions to the United States; and if it failed, the House would, by paying attention to it, have shown their disposition to encourage science. The argument against the report of the committee, that this Hall was exclusively devoted to legislation, it was said, would operate with equal force against permitting Divine service to be performed there on Sundays. Before any question was taken on the latter clause of the report of the committee, the House adjourned. THURSDAY, February 15. _Torpedoes._ A motion was made by Mr. BURWELL, that the unfinished business of yesterday do lie on the table; and the question being taken thereon, it was determined in the negative. The House then resumed the consideration of the said unfinished business, and the question recurring on the motion to postpone indefinitely the further consideration of the second member of the resolution, Mr. SPEAKER decided that the said motion to postpone indefinitely was, at the time the same was under consideration, out of order. A motion was then made by Mr. ROSS, to amend the said resolution by striking out the words, _delivering a lecture on_, for the purpose of inserting the word _explaining_. And the question being taken thereon, it was resolved in the affirmative. The question was then taken upon concurring in the second and last member of the said resolution, and determined in the negative--yeas 55, nays 61. On motion of Mr. TROUP, the question was then stated on concurring in the first and second members of the said resolution; when Mr. SPEAKER decided that, a question being divided, one part affirmed and the other rejected, a question cannot be put upon the whole of the resolution as originally proposed. From which decision of the chair, an appeal was made to the House by Mr. TROUP, and being seconded, the question was taken, "Is the decision of the Chair correct?" and resolved in the affirmative--yeas 78, nays 21. FRIDAY, February 16. _Mrs. Hamilton's Claim._ The House resolved itself into a Committee of the Whole on the report of the Committee of Claims on the petition of Elizabeth Hamilton, widow of Alexander Hamilton, praying for the compensation due to her deceased husband. [This report is one of the class of those favorable to the prayers of the petitioners on grounds of equity, but declaring, because they are barred by the statute of limitations, that they, therefore, ought not to be granted.] The resolution reported by the Committee of Claims is as follows: "_Resolved_, That the prayer of the petitioner ought not to be granted." The report was supported by Messrs. MONTGOMERY, VARNUM, HELMS, and BACON, on the ground that the late General Hamilton had no claim on the Government under the resolutions of the old Congress; because he was, on the 25th of November, 1782, a delegate in Congress, and, by the 6th article of the Confederation, incapable of holding, at the same time, a military commission. He was in that Congress, a member (if not the chairman) of the committee which reported the resolutions under which his heirs are now said to be entitled to compensation. Had no statute of limitations ever been passed, therefore, it was said that General Hamilton or his heirs had no claim on the Government; because in accepting a seat in Congress, he had virtually resigned his commission before the close of the war. The case might be a hard one; but there were hundreds of cases at least equally so, and cases too in which the sufferers had not, as General Hamilton had, subsequently enjoyed lucrative employments by the favor of his country. It was said that Congress ought to be just before they were generous. Before they granted a claim of this doubtful character, influenced by the character or standing of the individual, they should relieve the impoverished old soldiers who daily begged of them for a pittance of bread, whose claims were equally just and whose necessities were much more pressing. Mr. BOYD spoke in favor of the report of the committee. Either the statute of limitations was just or it was unjust. If unjust, it ought to be repealed; if just, Congress ought to be careful how they made exceptions in favor of particular claims. Messrs. JOHNSON, GHOLSON, DAWSON, SHEFFEY GOLD, KEY, PITKIN and GARDENIER, oppose the report of the committee. It was said that General Hamilton's having received a brevet commission at the close of the war was evidence of his having been considered in service until the end of the war; for unless he had, such a commission could not have been issued to him. But a short time before the peace, he was seen at the head of his regiment gallantly storming a redoubt at the siege of York, and contributed not a little to the capture of Cornwallis and his army. By accepting a seat in Congress he did not resign his commission, but held himself liable to be called into service at any time, if necessary. But if he had, from the best of motives, accepted a seat in Congress, and thereby resigned his commission, it was said that his heirs ought not, therefore, to be deprived of the compensation equitably due to him. Congress had extended the hand of relief to the daughters of Count de Grasse, who had no shadow of a legal claim; but their father had assisted by sea, as General Hamilton did on the land, at the capture of Cornwallis; they were in this country in distress, and Congress had relieved them. Should the same relief be denied to the representatives of a citizen who had served during the war, and whose legal claim, if barred at all, (except by the statute of limitations,) was only barred by his zeal in the service of his country, which prompted him to accept a seat in Congress? The statute of limitations, it was said, was never intended to bar Congress from discharging a just claim, but merely to prevent the accounting officers of the Treasury from allowing all the old, and perhaps fraudulent claims which might have been pressed upon them. Every gentleman who spoke, dwelt upon the obduracy of heart and injustice, as it was termed, which could refuse to the claim of the war-worn soldier, the compensation due to him for his assistance in achieving the liberties of his country. Before the question was taken on the report, the committee rose, reported progress, and obtained leave to sit again. And the House adjourned to Monday. MONDAY, February 19. _Bank of the United States._ Mr. MONTGOMERY, from the committee appointed, on the twenty-ninth ultimo, on the memorial of the Stockholders of the Bank of the United States, made a report thereon; which was read, and referred to a Committee of the Whole to-morrow. The report is as follows: That in proceeding to the consideration of the said petition, your committee instructed their chairman to address a letter to the Secretary of the Treasury, requesting him to furnish such information or observations as he might think proper, in relation to the subject-matter thereof, as connected with the financial and commercial interests of the United States. In reply to which, the Secretary, by his letter to the chairman, referred your committee to his former report on the said subject, made to the Senate of the United States, in obedience to the order of that House. Your committee have been attended by agents of the petitioners, who, in addition to the matters contained in the petition, have suggested to your committee that the object of the petitioners was to obtain the renewal of the charter in its present form; that, for this renewal, the bank is willing to make compensation, either by loans at a rate of interest, or by a sum of money to be agreed upon, or by an increase of the capital stock, by a number of shares to be taken and subscribed for by the United States, to an amount adequate to the compensation to be agreed upon for such renewal. These agents also suggested that they were fully authorized and empowered to offer and conclude the terms specifically connected with these propositions. Your committee, not feeling themselves authorized to enter into such terms, and judging that the extent of those propositions would better apply to the details of a bill, than to the adoption of a principle to be first settled by the House, have, therefore forborne to inquire into the extent of the propositions, and, without expressing an approbation or rejection of these offers, or giving an opinion as to the plan and reasoning of the Secretary of the Treasury, your committee in order that the opinion of the House on this great national question may be declared previous to entering into the details connected with the subject, recommend the following resolution: _Resolved_, That it is proper to make provision for continuing the establishment of the Bank of the United States, with offices of discount and deposit, under the regulations necessary for the beneficial administration of the national finances, during such time, and on such conditions, as may be defined by law. WEDNESDAY, Feb. 28. _Amey Dardin._ Mr. GHOLSON, from the committee appointed on the seventh of December last, on the petition of Amey Dardin, made a report thereon; which was read, and referred to a Committee of the whole House on Friday next. The report is as follows: That the petitioner claims compensation for a stud-horse, known by the name of Romulus, taken from her husband, David Dardin, in the year 1781, for the use of the army of the United States. It appears that the said horse was impressed from David Dardin for the public service by Lieutenant Rudder, a Continental officer, on the 26th of February, in the year aforesaid, and was then valued at the sum of £750 specie. The horse was taken to the army in North Carolina, then commanded by General Greene, who, upon hearing of the valuation, ordered the said horse to be valued again, which valuation was still higher than the first; whereupon General Greene ordered the horse to be returned to his former owner, who called upon three persons to ascertain the damages sustained by the use of his horse, and they estimated the damages at £100. The said Dardin then received the horse as his property, and continued to use him as such until the 18th July, 1781, when another Continental officer again took the horse and gave a receipt for him, wherein the sum of £750 is mentioned as having been before stated as the appraised value. This procedure attracted the attention of the Executive of Virginia, and in December, 1782, Benjamin Harrison, then Governor, made a representation to General Greene respecting this subject; but the horse being by this time in the State of Georgia, and applied to the public service, was continued therein, finally disposed of, and never thereafter returned to the said owner. It also appears that this claim of Dardin was referred to the Virginia Assembly in 1782 by the court of Mecklenburg county; and, in a former report it is stated, and believed to be true, that Dardin accordingly petitioned the Legislature of that State; but his claim being considered as coming more properly against the Union than against any particular State, he did not succeed. He, or the present petitioner, was then advised that redress might be obtained against the officers who took the horse, and a suit was instituted in the High Court of Chancery of Virginia for that purpose, which suit was depending therein until the month of June 1793, when it appears to have been abandoned and was dismissed. With the exception of the fact which the committee have extracted from a former report in this case, that this claim was once presented to and rejected by the Virginia Legislature, (which is deemed a circumstance of no particular importance,) all the foregoing statement is supported by written documents, which appear to be genuine and authentic. On the merits of this claim, your committee consider it almost superfluous to comment. The facts are conclusive in its favor, and no obstacle to its discharge can be conceived, except the lapse of time on this subject. The committee beg leave to state, that on the 23d July, 1787, Congress passed a resolution providing that all persons having unliquidated claims against the United States shall exhibit a particular abstract thereof to the Comptroller of the Treasury of the United States within one year. This was the first limitation that was adopted in respect to any class of claims, except those for personal services, which had been barred by the resolution of 2d November, 1785. The committee are of opinion that this claim was not included in the resolution of 23d July, 1787, because that resolution mentions only unliquidated claims; and the present claim was always liquidated and certain. The certificate granted by the Continental officer states the appraisement of the horse, made pursuant to the usage of the army, at the specific sum of £750 specie. The next limitation to claims against the United States, and which it is believed by the committee embraces the claim of the petitioner, is contained in the act of the 12th February, 1793, which took effect on the 1st of May, 1794. On the 28th of February, 1794, the petitioner, instead of presenting her claim to the Treasury, according to the requisition of the statute of the 12th of February, 1793, presented it to Congress, who took cognizance of it, and ordered it to lie on their table. Her petition, and the only documents on which she could have succeeded at the Treasury, were retained in the possession of the House of Representatives until, and for some time after, the statute of limitations began to operate. Your committee have no hesitation in hazarding the opinion that in a case like this, between A and B, before an intelligent and upright, and equitable judge, the claim would be most undoubtedly sanctioned, as not coming within the spirit, although it may fall within the strict letter of the act of limitation. Placing, however, this question out of view, the committee are still of opinion that the claim of the petitioner ought to be allowed. They believe that when a claim, founded in a fair consideration, and supported by indisputable evidence, is presented for payment, a proper self-respect on the part of the Government, as well as justice to the claimant, requires its discharge. They therefore submit the following resolution: _Resolved_, That the prayer of the petitioner ought to be granted. FRIDAY, March 2. _Mrs. Hamilton's Claim._ The House resolved itself into a Committee of the Whole on the following resolution reported by the Committee of Claims on the petition of Elizabeth Hamilton: _Resolved_, That the prayer of the petitioner ought not to be granted. Messrs. NELSON and TAYLOR opposed, and Messrs. ROOT, BOYD, and MONTGOMERY, supported the report--each at considerable extent. At length the question was taken in committee, and the report disagreed to, 60 to 52. The committee rose, and reported their disagreement. The House concurred with the Committee of the Whole in their disagreement--yeas 62, nays 52. After some conversation as to the proper course now to be pursued, Mr. GHOLSON moved that the Committee of Claims be instructed to report a bill, pursuant to the prayer of Elizabeth Hamilton. The motion was agreed to by yeas and nays--61 to 46. FRIDAY, March 9. The bill sent from the Senate, entitled "An act for the relief of Charles Minifie," was read twice, and committed to the Committee of Claims. _Torpedoes._ The bill from the Senate, entitled "An act making appropriation for the purpose of trying the practical use of the torpedo, or submarine explosion," was read the first time. A motion was made by Mr. LIVERMORE, that the bill be rejected; and the question being taken thereon, it was determined in the negative--yeas 27, nays 76. The bill was then read the second time, and committed to a Committee of the Whole on Monday next. MONDAY, March 12. Another member, to wit, from Virginia, JOHN RANDOLPH, appeared, and took his seat in the House. WEDNESDAY, March 14. _Claim for Indian Depredations._ Mr. WITHERSPOON, from the committee appointed on the fourteenth ultimo, on the petition of Alexander Scott, made a report thereon, which was read, and referred to a Committee of the Whole on Friday next. The report is as follows: That in the month of February, 1794, William Scott, James Pettigrew, and John Pettigrew, of South Carolina, left that State, with a view of establishing themselves in the present Mississippi Territory, and took with them twenty-one negro slaves, with goods and chattels to the value of more than one thousand dollars; that they proceeded in safety on their journey as far as the Muscle Shoals, on the river Tennessee, where they were attacked, about the 9th of June, 1794, by a party of Cherokee Indians, who put to death all the white people of the family, and took possession of and carried away the negroes and other property. It appears, also, to your committee, that repeated endeavors have been made, at very great expense, to recover the aforesaid property, without any other success than the recovery of a negro child; and that the persons legally entitled to the said property are forever foreclosed from any remedy by which to recover the same, in consequence of the stipulations of the ninth article of a treaty made with the Cherokee Indians on the 2d day of October, 1798, which article is in the following words: "It is mutually agreed between the parties that the horses stolen, and not returned within ninety days, shall be paid for at the rate of sixty dollars each. If stolen by a white man, citizen of the United States, the Indian proprietor shall be paid in cash; and if stolen by an Indian from a citizen, to be deducted, as expressed in the fourth article of the Treaty of Philadelphia. This article shall have retrospect to the commencement of the first conferences at this place in the present year, and no further. And all animosities, aggressions, thefts, and plunderings, prior to that day, shall cease, and be no longer remembered or demanded on either side." By the above-recited article, the petitioners are wholly deprived of redress in the premises. If there existed any tribunal of justice before whom the case could be brought, the right of the petitioners to the said negro slaves and their increase would doubtless be established. But there is no court within the United States having cognizance of an action for the recovery of property held within the Indian boundary. Neither is it in the power of the petitioners to avail themselves of force or stratagem, whereby to regain possession of the aforesaid slaves and their increase, because they would be liable to punishment for a violation of the statute of the United States regulating intercourse with the Indian tribes. From these premises, it appeared to your committee that the petitioners have an undoubted right to the above-mentioned slaves and their increase, and that they have been deprived of all remedy for their recovery by the acts of the Government of the United States; that the voluntary renunciation of their rights by the Government gives to the petitioners a fair claim on the Government for indemnification. Your committee, therefore, under an impression that the aforesaid slaves would be delivered to the agent of the United States for Indian Affairs among the Cherokee Indians upon conditions more favorable to the United States than a full remuneration of their value to the petitioners, respectfully submit the following resolution: _Resolved_, That the prayer of the petitioner is reasonable, and that the President of the United States be authorized and requested to treat, by such commissioner as he shall appoint, for the delivery to the rightful owners of the slaves and their increase taken from William Scott, James Pettigrew, and John Pettigrew, on or about the 9th of June, 1794, by a party of the Cherokee nation of Indians, at or near the Muscle Shoals, on the river Tennessee, upon such equitable conditions as to him shall appear just and reasonable. FRIDAY, March 16. _Mrs. Hamilton's Claim._ The House resolved itself into a Committee of the Whole, on the bill for the relief of Elizabeth Hamilton. Messrs. SMILIE, ROOT, W. ALSTON, BACON, MACON, CLAY, and BOYD, opposed the bill, and Messrs. JOHNSON, SHEFFEY, and NELSON, supported it. The committee rose about four o'clock, and reported the bill. Mr. MACON moved to amend the said bill by striking out the following words: "five years' full pay for the services of her said deceased husband as a Lieutenant Colonel in the Revolutionary war, which five years' full pay is the commutation of his half-pay for life;" for the purpose of inserting, "whatever may be due to her for his services as an officer during the Revolutionary war." Mr. GHOLSON called for a division of the question. And the motion to strike out was negatived, yeas 57, nays 54. Mr. W. ALSTON moved to amend the bill by adding the following proviso: "_Provided_, That it shall be made to appear, to the satisfaction of the accounting officers of the Treasury Department, that the said Alexander Hamilton ever was entitled to half pay or commutation." The question on Mr. ALSTON'S amendment was decided in the negative--yeas 55, nays 56. And on motion, the House then adjourned, about five o'clock. SATURDAY, March 17. _Amey Dardin's Claim._ The bill for the relief of Amey Dardin was read a third time. Mr. STANFORD moved to recommit the bill to obtain a more particular report on the claim than had been made. Motion negatived. The passage of the bill was opposed by Messrs. MACON, BACON, PICKMAN, and STANFORD, and advocated by Messrs. GHOLSON, SMILIE, W. ALSTON, and SHEFFEY. [It was opposed on three grounds--the main objection being that it opened the statute of limitations; 2, that the claim ought not to be allowed, because the horse, for which compensation was asked, might have been reclaimed if the deceased Mr. Dardin had chosen to have received it; 3, that interest ought not to be allowed on the sum at which the horse was valued.] The bill was passed--yeas 82, nays 24. _Mrs. Hamilton's Claim._ The consideration of the bill for the relief of Mrs. Hamilton was called for. Mr. WYNN moved to adjourn. For it, 23. Mr. ROOT moved to postpone the further consideration of it till Friday next. Negatived, 57 to 43. Mr. ROOT opposed the bill at length, and Mr. FISK replied. The question "Shall the bill be engrossed for a third reading?" was then taken and carried, by yeas and nays. On the question, when the bill should be read a third time, Mr. ROOT named Friday, and Mr. NELSON to-day. For Friday 44--For Monday 50. To-day was fixed as the day; and a motion was made by Mr. T. MOORE to adjourn. Lost, 63 to 50. The bill was read a third time and passed, 63 to 53, the votes being precisely the same as those last taken, except that Mr. R. BROWN was absent on this vote. MONDAY, March 26. _Torpedo Experiment._ The bill making an appropriation for the purpose of making an experiment on the practical use of the torpedo, or submarine explosion, was taken up. Mr. DANA, said that the question now before the House did not relate to any degree of reputation which any individual might claim for any invention, nor to any interest he might have in any discovery he had made. The question was, whether this proposition now appeared before the House under such circumstances that they should step out of the ordinary course of encouragement, given by law to inventors, to provide the means of making an experiment at the public expense. This, Mr. D. said, was the simple inquiry to be made; and, however eminent or distinguished in the walks of science, or however irradiated by the splendor of genius, it belonged to no individual to demand of the Legislature that they should adopt any system previous to its utility being ascertained. No individual could arrogate it to himself; and, when any individual pressed himself upon the Legislature, it was a question whether this experiment was worthy to be made; whether the invention promised any possible good worthy of this experiment. Mr. D. said he had no wish to detain the House, but he had really doubted, for himself, whether, with the views he entertained on this subject, it was compatible with the respect due to the House to withhold some of the sentiments which occurred to him in opposition to this bill. In every instance in which a sum of money had heretofore been appropriated to encourage inventions, it had been for some object admitted to be of value, for something intended to be of use, and which, prior to making the appropriation in relation to it, had been, in a degree, examined. This, however, was a thing which, on the face of it, appropriated a sum of money for the purpose of making experiments to ascertain the use of the invention. It was therefore, perhaps, the first appropriation of the kind ever proposed. Mr. D. said he did not perceive that any experiment could be made, in time of peace, to ascertain this thing, so as to decide the question of the practical use of the torpedo; for, with respect to every question stated in the publication laid on the table, with respect to any principle which the inventor proposed to establish by any specific experiment, with respect to any question which related to natural agents or their physical effect, he thought it proper to admit the whole. In the first place, Mr. D. said that he admitted that the explosive force of gunpowder, placed at the keel, might destroy any ship. Another thing he would admit, that a person might deposit powder in a metallic case, which should remain under water; that the case might be made water-tight, and that the clock-work contained in it might be put in motion. He would admit, also, that this machine might be balanced so that its gravity should be nearly equal to that of the water; that the action of the current or tide might bear such a magazine, so specifically apportioned, beneath the bottom of the vessel. But, when all these things were admitted, Mr. DANA said that he did not perceive that any one point was gained as respected the object of the experiment, for it must be considered that all this experiment could only go to decide the action of natural physical powers, where the efforts of genius were not combined. As respects the whole of the thing itself, as far as I understand it, I perceive nothing new in it. I do not conceive that, on this subject, there is any thing very novel in point of principle. There may be something in the modification of it; but, as respects the main principle, there is nothing new. The idea was started during the war of the American Revolution, and various experiments were made on it. The Commander-in-Chief of the Army of the United States, at that time, was not, as I have understood, impressed himself with much confidence in the experiment. But a gentleman of his family, and an officer of his army, who had more confidence in it, made the experiment; and, ultimately, the experiment was pretty much given up. As he did not speak at random, Mr. D. asked leave to call the attention of the House to the principles of the invention of David Bushnell, of Connecticut. [Mr. D. here read, from the _Philosophical Transactions_, an account of a machine invented by Mr. Bushnell, in many respects similar to that invented by Mr. Fulton.] The principal difference between these two inventions, Mr. D. said, appeared to be in the mode of conveying the machine to the keel of the ship. The plan of Mr. Fulton was, instead of conveying it by means of a diving-boat, to convey it by the action of the current to the place where it was to operate. To do this he proposed two modes. As respected the first, the action of the current on the torpedo placed obliquely, Mr. D. said he had no doubt. It was the principle on which the helmsman steers his ship, and the seaman manages his sails; the principle on which boats are made to pass ferries by the oblique action of the current. As respected the second mode, the use of the harpoon-gun, there was no novelty in that certainly. It had been used in Europe in the whale fishery, where they were not trained in this species of fishing so as to produce dexterity in throwing the harpoon. Premiums had been given, and attempts made to discharge a harpoon from a ring and rope attached to it, at the distance of ten fathoms, which was a greater distance than the most experienced and skilful could strike with effect. The question which Mr. D. said he proposed, was, whether obstacles could not be interposed by naval men. As respected firing the harpoon-gun, he should suppose it a want of skill or attention in the experiment if it failed to take effect. That a harpoon might be fired into a vessel, that the torpedo would go under her, and that a vessel which could be bought for $5,000, might be blown up in this way, he had no doubt; but when all this is done, what does it ascertain? As respects making a torpedo, any person who is in the neighborhood of a good gun and locksmith, and has good powder, can construct one. Mr. D. said he did not see the necessity of spending this sum of money rather for amusement than for any thing else. He did not see the necessity of it, because he did not perceive any one thing to be learnt from an experiment. He was, therefore, against the bill. Mr. LYON said that the gentleman from Connecticut had shown his own conviction of the utility of torpedoes, and it would be worth while to give five thousand dollars to establish the same conviction in others. If I had the twentieth part of the certainty on the subject which that gentleman has, said Mr. L., I should not vote for the experiment. I have no desire, in voting for any thing of this kind, to give up any other kind of defence. I know it is all-important in us to defend our ports and harbors. If it was not for our extensive seacoast, I should not be so extremely averse to going to war. I would leave no means untried to protect this seacoast. However little the hope might be, if there was the least thing to hang hope on, I would give $5,000 for the experiment. I have voted for the highest sum ever called for, for the defence of New York; but still, when I look to the steeples of the fine churches, and to the banks, &c., of that city, exposed as it is and must be, I am struck with horror. Notwithstanding all the exertions which have ever been made for them, they must still be insecure. If $5,000 would carry conviction as far on the rest of the House as with the gentleman from Connecticut, the money would be well laid out to enable us to go on with a further experiment of this plan. The gentleman from Connecticut read a long history of the torpedo experiment made many years ago. I believe, sir, Mr. Fulton has but little merit in originating the thing. Let gentlemen recollect what an alarm this thing made, and how uneasy the British were during the Revolutionary war, till they thought they had got rid of these machines. I cannot forget the alarm which they excited, and will take the liberty to quote Hopkinson on the subject, who was a witness to the transaction: "'T was early day, as poets say, Just when the sun was rising, A soldier stood on log of wood, And saw a sight surprising. "As in amaze he stood to gaze, The truth can't be denied, sir, He spied a score of kegs, or more, Come floating down the tide, sir. "A sailor, too, in jerkin blue, The strange appearance viewing, First damn'd his eyes, in great surprise, Then said--'some mischief's brewing.' "These kegs now hold the rebels bold, Pack'd up like pickled herring, And they 're come down, t' attack the town In this new way of ferry'ng. "The soldier flew--the sailor too, And, scar'd almost to death, sir, Wore out their shoes to spread the news, And ran till out of breath, sir. "Now up and down, throughout the town, Most frantic scenes were acted; And some ran here, and some ran there, Like men almost distracted. "Some fire cried, which some denied, But said the earth had quaked; And girls and boys, with hideous noise. Ran through the town half naked." &c. &c. If a parcel of kegs, in those days, alarmed them so much, what will Fulton's torpedoes do now? Mr. MCKIM said, that what had fallen from the gentleman from Connecticut had operated powerfully on his mind to satisfy him of the propriety of the appropriation. He says, observed Mr. MCK., that he has no doubt they will produce the desired effect. Now, sir, when I am informed, from so respectable a source, of their effect when properly placed under the ship, I am induced to vote for this appropriation. If one of these machines in a hundred should take effect, the object would be perfectly gained. If we could only blow up one or two in a squadron, we should not hereafter be disturbed by British squadrons in our waters. I have listened with great pleasure to the lecture of the gentleman on pneumatics, hydraulics, &c., for I know not where I could have derived so much information as from that gentleman, and I take the opportunity of returning my thanks to him. Mr. FISK said he was against the bill, but from different reasons than other gentlemen were. I do believe, said he, that in some cases, the anchored torpedoes may be effectual; but I do not believe that any thing to result from this bill will be of service to the country. I do not entertain any doubt that a vessel may be blown up. The explosion will take place, the wreck will be left in the bed of the river, and it may cost $5,000 to raise it, or it may remain as an obstacle to the invasion of the capital. If Congress are at this time seriously to resort to the torpedo system of defence, let us do it in a more serious manner; let us make a respectable provision to purchase torpedo munition, and create a torpedo corps under certain regulations. We have got military and naval armaments; let us make a torpedo armament. At the same time, it was but justice to the inventor to say, that he considered the anchored torpedo as a very useful invention. Mr. F. moved to recommit the bill, to inquire into the propriety of appropriating such a sum of money as the Secretary of the Navy should deem adequate to the object, for the sum proposed certainly was not. Mr. QUINCY said he agreed with the gentleman from New York in his opposition to the bill, because, if a fair experiment was intended, the appropriation was totally insufficient. This morning, in a conversation with the Secretary of the Navy, I understood that this sum will not enable a vessel to be placed in that situation which will give a fair experiment. If we pass this bill, it will be utterly useless to the purpose proposed. If the object be to have gentlemen who never saw such a thing gratified with an explosion, that object will be attained, but no other. Let us have an estimate from the Secretary of the Navy of the probable expense, or the whole sum appropriated may be lost, and the law will prove utterly disgraceful to those who passed it. Mr. HOLLAND said he had understood from the torpedo inventor himself, that $5,000 would be amply sufficient. Mr. DANA said he had no belief that any vessel could be purchased for five thousand dollars, on which a sufficient experiment could be made. He conceived that the experiment could only be made in hostile operations. We are told that these torpedoes would destroy the navy in the British channel. Do we doubt the inveteracy of the French hatred of the British navy when it has existed so many years? If this invention would command the British Channel--and millions are but dust in the balance for this object--to enable Bonaparte to strike at the British soil, why has not the invention been patronized by France? It has been rejected by France, and rejected by England after an expense of hundreds of thousands of dollars--and now are we to take it up? It is as a stationary resistance to be made to a naval force where there are fortresses also, that the torpedo may be made use of, if they can be used at all; where chains, or chevaux-de-frises are made use of, it may be made use of as auxiliary to other aids in terrifying the enemy. As to setting these machines afloat, firing harpoons into vessels, calculating the chance of boats getting away when a single shot may send them to the bottom, I have no opinion of it at all. Mr. LYON said he would not vote for recommitment, not that he had not rather that ten thousand dollars were appropriated than five thousand; but the House had the Senate's opinion on that point before them. He agreed with gentlemen entirely, that there never could be a complete experiment until time of war. But that was no reason why we should not, before war came, be in a fair state to try the experiment in war. Mr. FISK said he had not seen the experiment which had been made in New York, but he had conversed with hundreds who had. He had no doubt but the invention might be useful, but how was its utility to be ascertained, unless in the vessel to be attacked, there was a crew prepared to resist the approach of the boats, or prevent the operation of the torpedo? The nation would be no more convinced of their utility after an expenditure of five thousand dollars than they now are. It is because I have confidence in the effect of anchored torpedoes, that I am for recommitting the bill. By passing the bill as it is, we shall demonstrate nothing but the expenditure of money. I am for making an actual experiment on an enemy's vessel. To attack a well-manned frigate, is a very different thing from attacking an old hulk, perfectly at the disposal of the projectors. If we were to pass a bill constructing a torpedo corps, and offering a bounty on every ship blown up, it would be much better calculated to make an impression of our seriousness than this bill. Mr. TALLMADGE said, that having been absent from the House at the time this bill was first introduced, he knew not what arguments had been offered in favor of it. He said he was always ready to encourage inventions, &c., but when a measure was presented which had no novelty in it, he could not be satisfied to give a silent vote on the bill for encouraging it. My honorable colleague stated fairly the principles on which the submarine boat was constructed; and I believe, said Mr. T., that there is no gentleman in this House who doubts the power of gunpowder, placed under the bottom of a vessel, to destroy it. I have seen it tried during the war in a great variety of ways. I became perfectly satisfied that the principle was just; the only difficulty was to place the magazine in such a situation that it should have the greatest possible effect. I well recollect that, in 1777, when Bushnell was called on to make an experiment on a British brig of thirty-two guns, lying in North river, a detachment of troops was directed to proceed down the river to enable him to make the experiment free from interruption. I had the honor to command the detachment, and continued there one month. The object of the troops under my immediate command was to keep off all hostile persons, whether of the enemy or persons unfriendly to the invention, that he might have every opportunity to make his experiment with success. His object was at ebb tide to get into the river a boat constructed for the purpose, and pass down the river, and, if possible, fix his magazine of powder to the bottom of the enemy's vessel. He tried it over and over again. Sometimes he would entirely miss the vessel; sometimes he would come so near that he would get intimidated and retire again; till, sir, I became so heartily sick of the business, and of that sort of duty, that I wished the boat and men were both at the bottom of the ocean. I state this to show the difficulty, danger, and what I myself conceive to be the impossibility of placing the magazine under the vessel. So much for this; and I take Mr. Fulton's machine to be bottomed precisely on the same principle, the difference only being in the mode of application. I have no idea of laughing the subject out of the House; but how can gentlemen see the least probability of success in the invention? Suppose a frigate at anchor, and a few boats endeavoring to harpoon this vessel. Do gentlemen suppose that boats can approach without the most imminent danger? And, granting that the harpoon strikes, where is all the nautical skill of the men when they see this, if they do not prevent it from taking effect. Suppose a perfectly sure shot, and that the harpoon should be fastened in the bow, is it possible that the rope to which the torpedo is attached would not be cut, and the torpedo left to float below perfectly harmless? Do gentlemen consider harpooning a vessel to be like harpooning a whale, which has no men on board of it to take out the harpoon? I cannot bring myself to believe it possible that a crew on board a ship could see all around her, and yet permit a torpedo to be attached to her and place her in such a condition as to be liable to be totally destroyed with every person on board. It does seem to me that this sort of philosophical experiment ought not to be gone into by this House. If it be necessary to employ anything it would be vastly preferable that we should not go through all this solemn farce of passing a law for the purpose of exhibiting a sort of playful experiment, and there is probably a day of our time to be devoted to it, when, in truth, no solid advantages can accrue from it. I am unwilling on another ground, because the thing itself would expose the Government to a sort of ridicule. If we pass this bill, and the experiment be made; if a brig be bought for this money and totally destroyed, there will still be as much proof wanting to demonstrate that this is an experiment on which we can rely, as there was before. I am against it on another ground: that if we trust to this kind of doubtful defence, we shall get into the habit of giving up the more substantial defence of the country. This is my solid reason for voting against this bill. No one ever yet found any way of getting along in solid defence but by solid preparation. I should rather come into honorable combat than fight with this underhand explosion, when especially there is so much doubt in it. If an experiment could be made, however, without all this solemn farce, I do not, know that I should have any objection to it. The motion for recommitment was lost--50 to 45. The question on the passage of the bill was then taken by yeas and nays, and decided in the affirmative--yeas 65, nays 53. WEDNESDAY, March 28. _First Meridian._ Mr. PITKIN, from the committee to whom was referred, on the 25th of January last, the memorial of William Lambert, made the following report thereon: That the memorialist states that, for the purpose of laying a foundation for the establishment of a first meridian for the United States of America, at the seat of Government, he has made calculations to determine the longitude of the Capitol, in the City of Washington, from Greenwich Observatory, in England; and that he submits the same, together with the data and elements on which his calculations are made, to the consideration and patronage of the National Legislature. The committee have deemed the subject worthy the attention of Congress, and would, therefore, beg leave to observe, that the necessity of the establishment of a first meridian, or meridian which should pass through some particular place on the globe, from which geographers and navigators could compute or reckon longitude, is too obvious to need elucidation. The ancient Greek geographers placed their first meridian to pass through one of the islands, which were by them called the Fortunate Islands, since called the Canaries. Those islands were situated as far west as any lands that had then been discovered, or were known by ancient navigators in that part of the world. They reckoned their longitude east, from Heria or Junonia, one of these islands supposed to be the present Island of Teneriffe. The Arabians, it is said, fixed their first meridian at the most westerly part of the continent of Africa. In the fifteenth and sixteenth centuries, when Europe was emerging from the dark ages, and a spirit of enterprise and discovery had arisen in the South of Europe, and various plans were formed, and attempts made to find a new route to the East Indies, geographers and navigators continued to calculate longitude from Ferro, one of the same islands, though some of them extended their first meridian as far west as the Azores or Western islands. In more modern times, however, most of the European nations, and particularly England and France, have established a first meridian to pass through the capital, or some place in their respective countries, and to which they have lately adapted their charts and astronomical tables. It would perhaps have been fortunate for the science of geography and navigation, that all nations had agreed upon a first meridian, from which all geographers and navigators might have calculated longitude; but as this has not been done, and in all probability never will take place, the committee are of opinion that, situated as we are in this Western hemisphere, more than three thousand miles from any fixed or known meridian, it would be proper, in a national point of view, to establish a first meridian for ourselves; and that measures should be taken for the eventual establishment of such a meridian in the United States. In examining the maps and charts of the United States, and the particular States, or their seacoasts, which have been published in this country, the committee find that the publishers have assumed different places in the United States, as first meridians. This creates confusion, and renders it difficult, without considerable calculation, to ascertain the relative situation of places in this country. This difficulty is also increased, by the circumstance that, in Louisiana, our newly-acquired territory, longitude has heretofore been reckoned from Paris the capital of the French Empire. The exact longitude of any place in the United States being ascertained from the meridian of the observatory at Greenwich, in England, a meridian with which we have been conversant, it would not be difficult to adapt all our maps, charts, and astronomical tables, to the meridian of such a place. And no place, perhaps, is more proper than the seat of Government. It appears by the papers submitted to the consideration of the committee, that Mr. Lambert has calculated the longitude of the Capitol in the City of Washington, from the Royal observatory at Greenwich, by one of the most approved methods now in use for that purpose, viz: an occultation of a known fixed star by the moon. His calculations are founded on an occultation of n pleiadum, (_Alcyone_,) one of the seven stars, on the night of the 20th of October, 1804. By these calculations it appears, that the longitude of the Capitol, in the city of Washington, as reduced according to the true figure of the earth, (being that of an oblate spheroid,) is 76° 53´ 6".920 degrees west. The committee would observe, that Mr. Lambert appears to be well acquainted with astronomical calculations; and that, so far as the committee have had time to examine them, they appear to be correct. In a question, however, of so much nicety, the correct decision of which depends so much on the accuracy of the observations made, and the goodness of the instruments used, and when the smallest error in the data will necessarily produce an erroneous result, full reliance ought not to be placed on calculations made from a single observation. Indeed, in order to be certain of a correct result, it may be proper that more than one of the various methods of ascertaining longitude should be used; that calculations should be made from observations of the eclipses of Jupiter's satellites, of solar eclipses, of the angular distances between the sun and moon, or the moon and a fixed star, or other methods, as well as from observations on occultations of fixed stars. The committee are, therefore, of opinion that, in order to lay a foundation for the establishment of a first meridian in this Western hemisphere, the President of the United States should be authorized to cause the longitude of the city of Washington, from the observatory at Greenwich, in England, to be ascertained with the greatest possible degree of accuracy; and that he also be authorized, for that purpose, to procure the necessary astronomical instruments. They, therefore, beg leave to submit to the consideration of the House, the following resolution: _Resolved_, That it is expedient to make provision, by law, authorizing the President of the United States to cause the longitude of the city of Washington from the observatory at Greenwich, in England, to be ascertained with the greatest degree of accuracy; and also authorizing him, for that purpose, to procure the necessary astronomical instruments. In presenting the above report, Mr. PITKIN observed that the object of the committee was to have a first meridian established for the United States, from which computations of longitude might be generally made, that maps, charts, and nautical tables, might not, as heretofore, be calculated from the observatory at Greenwich, or from the varying points of Philadelphia, New York, Washington, or Charleston. Mr. P. dilated upon the advantages of such a measure. Congress would fix upon the place most proper for a first meridian; and, perhaps, as Washington was the seat of Government, it would be as proper a place as any. As the longitude must be taken very exactly, various instruments would be necessary for the purpose of making astronomical observations. As he was desirous that a bill should pass on the subject at this session, he did not move a reference of the report to a Committee of the Whole, but moved that it lie on the table, to give gentlemen time to consider it before he asked a decision on it. The report was accordingly ordered to lie on the table. FRIDAY, March 30. _Batture at New Orleans._ The House resumed the consideration of the bill providing the means to ascertain the title to the batture near New Orleans. Mr. BIBB's motion yet under consideration, and a division of the question being called for, The question on striking out the sections of the present bill (providing for a judicial decision) was taken, and carried--yeas 95, nays 22. The question now recurred on Mr. BIBB'S amendment, to insert, in lieu of those stricken out, several new sections. [Mr. BIBB'S amendment proposes that the right of the United States shall be vested in the Corporation of New Orleans, so as to enable them to defend any suit which may be instituted for the recovery of the batture, and that the batture shall be used and enjoyed as a public highway and landing place, &c.; as well by citizens of the United States as by the inhabitants of New Orleans.] This motion was decided by yeas and nays and lost--yeas 36, nays 84. SATURDAY March 31. _The Batture at New Orleans._ The House resumed the consideration of the unfinished business of yesterday, on the bill providing the means to ascertain the title to the batture in front of the suburb St. Mary, in the city of New Orleans. The question having recurred on the amendment of Mr. PITKIN, the said amendment was withdrawn by the mover. The question was then taken on concurring with the Committee of the Whole in their first amendment to the said bill, and carried in the affirmative. The question then recurred on concurring with the Committee of the Whole House in their second amendment to the said bill, amended in the House to read as follows: "SEC. 4. _And be it further enacted_, That the President of the United States be, and he is hereby, authorized, at any time within one year, to make and execute such compromise with the parties, or any of them, who were removed from the said batture on the twenty-fifth day of January, one thousand eight hundred and eight, by order of the President of the United States, and to procure a cession of their claims thereto, or to any part thereof, for the use of the public, or to any body politic or corporate, on such terms as may be agreed on with the said parties, and deemed advisable by the President, and to stipulate for a compensation, either in money or public lands, in the city of New Orleans, or its territories, as he may think proper." Messrs. NELSON, SMILIE, HOLLAND, and BIBB, opposed the amendment; and Messrs. SHEFFEY, KEY, and LYON, supported it. The question being taken, it was determined in the negative--yeas 62, nays 55. MONDAY, April 9. _Apportionment of Representation._ Mr. FISK said he rose to offer a resolution, which he had for some time wished to present for the consideration of this House. It is to provide for fixing the apportionment of the Representatives of the several States according to the third census. The last ratio was one Representative for every thirty-three thousand souls; which, gave one hundred and forty-two members to this House--a number as large as may be considered necessary for the despatch of legislation, or to preserve the liberties of the people. It is estimated that the next census will give seven millions two hundred thousand souls, which, according to the present ratio of representation, would give to this House two hundred and eighteen members--a greater number than could be accommodated within these walls, and a greater body of men than could progress with the business of the House. After the census shall be taken, the amount in each State ascertained, and the fractional numbers known, it will be much more difficult to fix the ratio than at this time. I therefore beg leave to submit the following resolution. And as it embraces a subject of great importance, I have no objection that it lay on the table a few days for the consideration of the members: _Resolved_, That the apportionment of Representatives amongst the several States, according to the third enumeration of the people, ought to be in the ratio of one Representative for every forty-five thousand persons in each State, and that a committee be appointed to bring in a bill accordingly. A motion was made that the resolution lie on the table. A motion was also made to postpone it for a week. Mr. PICKMAN moved to postpone the further consideration of the resolution indefinitely. He thought the question could be decided to much greater advantage in the two first months of the next session of Congress than in the two weeks remaining of the present session. Mr. MACON was against indefinite postponement. Every one, on reflection, must be satisfied that it would be better to decide the ratio of apportionment now than after the result of the census was known. He thought the resolution had better have been in blank as to the ratio. The ratio might be settled either by fixing the number of Representatives of whom the House should consist after the next census, or by fixing the number of souls which should entitle a district to a Representative. Mr. GOLD said, however desirable it might be at this time to fix the ratio, he doubted very much whether a decision would now settle the question. If a law were now to be passed, and there should be several large fractions on any given ratio, there would be a strong disposition to alter the ratio at the next session. He thought it would be expedient also to postpone the apportionment, because it might be affected by the proportion in which the population of the United States may have increased since the last census, which could not be ascertained till after the census. Mr. QUINCY said he understood the object of the resolution to be to settle a principle before the facts were ascertained. Now it was his opinion that the House should know the facts first and settle the principle afterwards. Suppose the principle to be adopted--perhaps one or two States might be entitled to but one Representative, which, had the ratio been fixed at forty thousand, might have been entitled to two. This would appear to operate unjustly. The House must know the facts in order fairly to apportion representation. The apportionment ought to be made not merely in relation to population, but to the weight of the different States in the Union--and these considerations could not have their due weight till after the relative numbers were ascertained. Mr. W. ALSTON was in favor of deciding on the subject at this session. He had no fear of difficulty resulting from fractions remaining unrepresented. It would be recollected that at the last apportionment, Delaware had a fraction of thirty-one thousand left, and Carolina twenty-nine thousand. The small States could not object to the course proposed; for if this question was postponed till after the census, and a particular ratio should appear to suit the returns of the three large States, they would support it and carry it too, notwithstanding the large fractions it might leave to smaller States. A disadvantage would therefore result to the small States from postponement rather than from a decision now. Mr. FISK said there was one other reason why an apportionment should be made at this session, viz: that it would enable the State Legislatures at their ordinary winter sessions to divide the States into districts, and not subject them to the necessity of an extra session for the purpose. Mr. LIVERMORE was against indefinite postponement, because he was inclined to the opinion that the subject ought to be acted on at this session, but wished the resolution to lie on the table a day or two. He said he was convinced, from his experience in the manner of doing business in this House, that it would take nearly the whole of the next session of Congress to make the apportionment, if it was postponed till after the census was taken. He had rather the resolution had been blank as to the ratio. Mr. FISK modified his motion, so as to leave it blank as to the ratio. Mr. BURWELL thought that the present was the proper time to fix the proportion; because, after the respective numbers of each State were received, it would be in the power of the larger States to fix the ratio as they pleased, and at present none of the State jealousies could be brought into action, which would, when the returns were actually made. To get over the difficulty said to exist in settling a principle before the facts were known, it was only necessary to say that so many members should compose the House. If the population was smaller than expected, there would still be the number deemed proper to constitute the House; and if it was larger there would be no great increase of members, to the detriment of public business. Mr. B. said he was fully impressed with the necessity of acting on the subject at the present session. If postponed till the result of the census was known, and the particular interest of each member of the House became implicated in the decision of it, there would be extreme difficulty in coming to a decision. Mr. SMILIE said he could not conceive any objection to passing the resolution in its present shape. In this question there was an inconvenience on one side and evil on the other. It was an inconvenience that the House could not with precision ascertain the population of the United States; but, from the increase in times past, the increase for the last ten years might be estimated. The evil of postponement on the other hand was great. Mr. S. said he had been in Congress when the ratio of representation had been settled heretofore, and he had never seen a more difficult question--and it ended at last in a bargain between the members of the different States; and from these bargains no good could arise. He much preferred deciding on the subject at the present session. Mr. RHEA of Tennessee was anxious that the subject should lie on the table a day or two, the more especially as there was such a disagreement of opinion as to the operation of the measure of fixing the ratio beforehand. Coming from a small State himself, he feared lest the principle should operate to the injury of the small States. He said he had been much surprised at the declaration of the gentleman from Pennsylvania, that the question would be decided eventually (if postponed) by individual interest. If on such a question the House was to be governed by individual interests, what was the nation to expect from them? This suggestion was another reason in his mind for the resolution's lying on the table. Mr. SMILIE had spoken of human nature as he found it, even in the gentleman from Tennessee as well as all others--a degree of self-concern always influenced individual conduct. Whoever had assisted at settling the representation of a State would conceive the difficulty of deciding these questions. The motion for indefinite postponement was negatived, ayes 23. The motion to postpone to Monday shared the same fate, ayes 33. The motion to lie on the table was carried--53 to 41. WEDNESDAY, April 11. _Colonel Washington._ Mr. RANDOLPH said that the House was already apprised of the death of Colonel William Washington, in whom our country had lost one of her most illustrious sons. It is very far from my intention, sir, said he, by any amplification of mine to lessen the impression of that merit which the bare mention of his name is calculated to make on the mind of every man who hears me. It is not the least unequivocal proof of that worth that it was not extinguished by the effulgence of his great kinsman's glory, with which it was daily brought into comparison. The reputation which can stand such an ordeal as this, is far beyond the praise or blame of an humble individual like me. If, to the proposition which I am about to offer, an objection should arise in the breast of any man who hears me on the score of the rank which that gentleman bore in the late American army, permit me to suggest that it is a testimony to valor and not to rank. It is not a mere respect to rank which I wish the House to pay. It is not in rank to add to the infamy of an Arnold, or to the glory of a WASHINGTON. I will, therefore, move the following resolution: _Resolved_, That the members of this House do wear crape on the left arm during the remainder of the session, as a testimony of respect for the memory of William Washington, late a Lieutenant Colonel in the Revolutionary army. Mr. SMILIE said he hoped there was no man who felt more respect or gratitude to those men who served their country during the Revolutionary war than he did, but this resolution appeared to be improper on several grounds. I agree, said Mr. S., with the gentleman from Virginia, that rank should have no effect on the opinions of the members of this House on such a subject as this. But, is it not singular that as to the many heroes who have served us during the Revolution, who have now gone to their long home, no notice has been taken of their merits by us, nor any step taken to confer upon them the honor now proposed to be conferred on this officer, whom I acknowledge to be meritorious? We have seen a Greene die, and certainly no man exceeded him in rank or merit, the General-in-chief excepted. We have seen a Wayne also die; and I do not recollect that such a tribute was proposed to any man who served us during the Revolution. Shall we, then, by passing this resolution, sanction an idea that Lieutenant-Colonel Washington was entitled to more respect than others? Would not the passage of this resolution be considered as an indirect censure on the other Revolutionary characters who have gone from us? When the other heroes fall that are still existing, we must, if we pass this resolution, pay the same respect to their merits, or suppose them to have been inferior. This would introduce into the Legislature invidious comparisons, and, instead of legislating, we shall be sitting as judges upon character. In every respect, I think the resolution objectionable. The question was taken on the resolution without further debate, and passed in the negative--yeas 30. THURSDAY, April 12. _The Convoy System._ Mr. EPPES said that, some time ago, a bill had been reported by him to the House, authorizing the President of the United States to employ the public armed vessels to convoy the lawful commerce of the United States. The motion to adjourn, which had been agreed to, would leave but a small portion of the time of the House for the discussion of the several subjects before them. As he was compelled by ill health to leave the city at an early day, having already obtained leave of absence, he was anxious to obtain a vote on this before he departed, and therefore asked to discharge the Committee of the Whole from the further consideration of the bill, in order to take the sense of the House whether it should go to a third reading or lie on the table for the present. This motion was opposed by Messrs. MACON, TAYLOR, PICKMAN, RANDOLPH, LIVERMORE, and WILSON, on the ground of its being out of the usual course of proceedings; and it was objected to the more especially as this was a subject involving very important principles, and one which, of all others, ought to be discussed in Committee of the Whole. Mr. EPPES expressed his willingness to take a silent vote on the subject, and thought a vote might be obtained on the bill without much debate. Mr. JOHNSON expressed great anxiety to vote on the bill. Mr. LIVERMORE intimated that he was strongly against the bill, and, if it took every hour in the session, he was determined to expose what he believed to be its injurious features. On the question, Mr. EPPES' motion was negatived--yeas 50, nays 61, as follows: YEAS.--Willis Alston, jr., William Anderson, Ezekiel Bacon, David Bard, Adam Boyd, John Brown, Robert Brown, William A. Burwell, William Butler, Joseph Calhoun, Matthew Clay, John Clopton, Howell Cobb, James Cox, William Crawford, John Dawson, Joseph Desha, John W. Eppes, William Findlay, Meshack Franklin, David S. Garland, Thomas Gholson, Peterson Goodwyn, James Holland, Benjamin Howard, Jacob Hufty, Richard M. Johnson, Walter Jones, Aaron Lyle, Samuel McKee, Nicholas R. Moore, Jeremiah Morrow, Gurdon S. Mumford, Roger Nelson, John Porter, John Roane, Erastus Root, Ebenezer Sage, Thomas Sammons, Ebenezer Seaver, Adam Seybert, Samuel Shaw, Dennis Smelt, George Smith, John Smith, Henry Southard, Robert Weakley, Robert Whitehall, Robert Witherspoon, and Richard Wynn. NAYS.--William W. Bibb, Daniel Blaisdell, James Breckenridge, William Chamberlin, Epaphroditus Champion, James Cochran, Richard Cutts, John Davenport, junior, William Ely, James Emott, Jonathan Fisk, Barzillai Gannett, Thos. R. Gold, William Hale, Daniel Heister, Jonathan H. Hubbard, Richard Jackson, jr., Robert Jenkins, William Kennedy, Herman Knickerbacker, Joseph Lewis, jun., Edward St. Loe Livermore, Matthew Lyon, Nathaniel Macon, Robt. Marion, Vincent Matthews, Archibald McBryde, Pleasant M. Miller, William Milnor, Thomas Moore, Jonathan O. Mosely, Joseph Pearson, Benjamin Pickman, jun., Timothy Pitkin, jun., Elisha R. Potter, Josiah Quincy, John Randolph, John Rea of Pennsylvania, John Rhea of Tennessee, Matthias Richards, Daniel Sheffey, John Smilie, Samuel Smith, Richard Stanford, John Stanley, James Stephenson, Jacob Swoope, Samuel Taggart, John Taylor, John Thompson, Uri Tracy, George M. Troup, Charles Turner, jr., Jabez Upham, Nicholas Van Dyke, Archibald Van Horne, Killian K. Van Rensselaer, Laban Wheaton, Ezekiel Whitman, and James Wilson. FRIDAY, April 18. _Colonel Washington._ Mr. QUINCY rose to move a resolution. He said he very deeply regretted the situation in which this House had been placed in relation to the memory of that distinguished officer of the Revolution, General William Washington, in consequence of the resolution moved on the 11th instant. He thought that the impression exhibited on the journals was not such as either did justice to that individual or to the feelings of every member of the House. He hoped that to the resolution which he was about to offer, and which had for its object an explanation of the grounds on which he knew a majority of the House had voted, would not find an objection. It would take away the appearance that this House had not that deep sense of the merits and services of that officer which he knew they possessed. He then read the following resolution: _Resolved_, That the House of Representatives are deeply sensible of the loss this nation has sustained in the death of General William Washington, late Lieutenant-Colonel in the Army of the Revolution, and that the rejection of the resolution offered on the 11th instant, in relation to that distinguished officer, having been produced wholly by considerations of a general nature, cannot be deemed to derogate from the high sense which this House, in common with their fellow-citizens, entertain of his civil and military virtues and services. The House agreed to consider the resolution--58 to 13. The resolution passed--ayes 63; about seventy-five members were present. FRIDAY, April 20. _General Wilkinson._ The SPEAKER laid before the House the following letter, which was read: WASHINGTON, _April 19, 1810_. SIR: After a tedious passage from New Orleans I arrived at Baltimore on the 16th instant, and reached this city the next day. My absence has been necessarily protracted by the selection of papers, from a mass of twenty years' accumulation, for the establishment of facts, to refute the multifarious and diversified calumnies by which I have been assailed. I now present myself to the Representative body of the nation, the guardians of the public weal and the protectors of individual rights, to express my earnest desire that they may constitute some impartial tribunal, which may be governed with strictness by the principles of the constitution and the laws of evidence, to investigate the conduct of my whole life, civil and military, whereby justice may be done, and my unexampled persecution be terminated. I aver my innocence of the foul offences which are imputed to me, and declare my ability to support it before any unprejudiced court. Through you, sir, I appeal to my country, and I claim that right which is not refused to the most profligate--the right of confronting my accusers. The Representatives of the people will not, I am persuaded, suffer a fellow-citizen who has been devoted to the public service more than twenty-five years, and has nothing left him but conscious fidelity and attachment to his native country, to sue in vain for justice. The enclosed letter to the Secretary of War was written anterior to the receipt of my notification of recall from the command on the Mississippi, and will evince my readiness and my desire for a full investigation of my conduct. With perfect respect, I have the honor to be, sir, your obedient servant, JAMES WILKINSON. Hon. J. B. VARNUM, _Speaker_, _&c._ _Naval Establishment._ Mr. RANDOLPH, from the committee to whom was referred the resolution respecting the reduction of the Naval Establishment, reported the following bill; which was twice read, and referred to a Committee of the Whole: [Here follows the Bill.] MONDAY, April 23. _Loan Bill._ The House resolved itself into a Committee of the Whole, on the bill authorizing a loan for a sum of money not exceeding the amount of the principal of the public debt reimbursable during the year 1810. [In the discussion which took place on this bill, there was no objection to the principle of it. Every gentleman who spoke assented to the propriety of placing at the disposal of the Government a sum of money fully adequate to meet the appropriations authorized by law for the present year.] Mr. DANA wished to ascertain the precise amount of the principal of the debt reimbursable during the year 1810, with a view to inserting the sum in the body of the bill. Some difference of opinion appeared to exist as to the exact amount of principal reimbursable. The sum annually applicable to the payment of the public debt is eight millions of dollars. The sum left, after paying the interest of it for the year, is annually applicable to the extinguishment of the principal. The exact amount of interest payable on the public debt during this year not being known, there was a difficulty in ascertaining the exact amount of principal reimbursable. The sum of $4,800,000 was mentioned. Mr. DANA moved to amend the bill so as to authorize a loan "not exceeding $4,800,000, being the amount of the principal reimbursable," &c. This motion was supported by the mover, and Messrs. GOLD, SHEFFEY, QUINCY, UPHAM, TALLMADGE, and PICKMAN, and opposed by Messrs. BACON, W. ALSTON, and MONTGOMERY. The arguments in favor of the motion were, generally, that it was improper to attempt to disguise any thing by giving to it a specious name; that borrowing money should not be called paying the public debt; that all authority given to borrow money should be express and specific as to the sum. It was said in reply, that there could be no objection that the truth should appear on the face of a bill; that this sum not being wanted to defray the ordinary expenses of the Government, but to pay debts heretofore contracted, the phraseology was perfectly correct; that it was as specific in fact as if expressed in so many figures. Mr. DANA varied his motion, after debate, on account of the uncertainty which appeared to exist as to the sum reimbursable, and of course as to the sum to be loaned. He moved to amend the bill so as to give authority to borrow a sum of money "not exceeding four millions of dollars." This motion was supported and opposed by the same gentlemen who debated the former motion. In support of the motion it was said, that this sum was all that the Secretary of the Treasury had asked for, and was therefore as much as ought to be given. The advocates of the amendment also said that they were averse to legislating blindfold, to voting millions without knowing for what, or to surrendering up their judgments to Executive discretion, under an idea that the President would not borrow more than was necessary. In reply it was said, that since the Secretary of the Treasury had made the estimate in question, other expenses had been incurred; that it was impossible to tell the precise amount which was wanted until Congress should adjourn, as it was impossible to tell on one day what appropriations they would make the next day; that, if not necessary, the authority to borrow would not be used; as in the case of the loan authorized at the last session of Congress, not a cent of which had been actually borrowed. That law had granted an authority nearly similar to this in nearly the same language. Mr. DANA'S motion was negatived--52 to 29. Mr. QUINCY observed that he felt but one difficulty on this subject. He could not agree to borrow an amount greater than the Secretary of the Treasury had said was necessary. He, therefore, moved to amend the bill by adding to it the following proviso: "_Provided_, That nothing in this act contained shall be construed to authorize any sum to be borrowed greater than four millions of dollars." The motion was lost--ayes 28. The bill was then ordered to be engrossed, and read the third time to-morrow. TUESDAY, April 24. _Reduction of the Navy._ The House in Committee of the Whole on the bill to reduce the Naval Establishment of the United States. The bill having been read-- Mr. MCKIM moved to amend that part of the bill which directs the sale of all the gunboats, by adding the following words: "belonging to the United States, unfit for service, and unworthy of repairs." This motion was agreed to without debate, ayes 56. Mr. KEY said he was friendly to the reduction of the Navy, but not to its annihilation. He therefore moved to strike out so much of the bill as provides that all the frigates but three shall be "sold," and to insert in lieu thereof, "laid up in ordinary." Messrs. DANA and MUMFORD supported the motion. Mr. RHEA of Tennessee made a motion, which superseded that made by Mr. KEY, to strike out the whole of the section, except so much as related to gunboats. He was wholly opposed to the reduction of the Navy at present. Mr. SMILIE said he should vote for the motion with a view to inserting a substitute going to place the Navy now on the footing of the Peace Establishment of 1806. Mr. DANA was in favor of Mr. RHEA'S motion, but expressed himself very pointedly in favor of a reform in the expenditures and conduct of the Naval Establishment generally. Mr. BASSETT also was in favor of Mr. RHEA'S motion. He supported the policy of a small navy, and vindicated the establishment generally from charges of waste or extravagance, though he was friendly to reform wherever necessary. Mr. B. spoke nearly an hour. Mr. COOK and Mr. RHEA of Tennessee also spoke in favor of the motion to strike out the whole of the first section. Mr. MACON spoke against the motion, and against the policy of a navy as applicable to the situation of this country. Mr. STANFORD followed Mr. MACON on the same side of the question, and particularly reprobated the extravagant expenditure of money incident to the naval system. Mr. DANA spoke again on the subject of reform in the system. Mr. MACON and Mr. STANFORD explained. Mr. BOYD was against the reduction of the Navy under present appearances. The motion to strike out the remainder of the section was carried, 61 to 25. Mr. SMILIE moved to insert, in the place of that part which was stricken out, the following: "And further, that the President of the United States be, and he is hereby, authorized to keep in actual service as many of the frigates and other armed vessels as in his judgment the nature of the service may require, and to cause the residue to be laid up in ordinary in convenient ports: _Provided_, the whole number of officers and seamen shall not exceed that fixed by the act 'in addition to the act, supplementary to the act, providing for the Naval Peace Establishment, and for other purposes;' passed the 21st day of April, 1806." Mr. S. read the law alluded to in this amendment, which would go to retain in service thirteen captains, nine masters commandant, seventy-two lieutenants, one hundred and fifty midshipmen, and nine hundred and twenty-five able-bodied seamen, ordinary seamen and boys. Mr. MCKIM opposed the amendment, because he was altogether opposed to a reduction of the Navy in the present state of the world. Mr. SMILIE replied. He said he had no apprehension of danger to his country from laying up a few frigates. Mr. BASSETT stated that the whole number of seamen now in service, was but two thousand seven hundred and twenty-three. If the number was reduced, the expense of reducing and re-enlisting them within a short period, would exceed the expense of keeping them in service during the interval. Mr. MONTGOMERY spoke in favor of the amendment, under the impression that there was no disposition in Congress to make use of the Navy. Although the number of seamen in service might not exceed two thousand seven hundred and twenty, as stated, yet the President now had power to authorize the employment of five thousand four hundred and ninety men. The adoption of the amendment, he said, would curtail the present annual expense, $778,000. Mr. MUMFORD spoke against the amendment. He remarked that the counting-house calculation of pounds, shillings, and pence, heretofore imputed as a fault to the merchants, seemed to have been transferred to the planters of cotton and tobacco. He did not regard a little expense when put in competition with the national safety. Mr. SMILIE'S amendment was negatived. The section for disusing all the navy-yards except those at Boston, New York, and Norfolk, having been read-- Mr. KEY moved to insert "Washington" after New York, and, speaking in support of his motion, expatiated on the advantages possessed by a navy-yard at the seat of Government. Mr. BASSETT concurred with Mr. KEY in opinion; but, as he presumed the section was only meant as an accompaniment to that part of the bill already stricken out, he moved to strike out the whole section. Mr. DANA opposed the amendment. Six navy-yards were certainly not necessary for the service of the United States, and he particularly opposed the retention of the yard at Washington. Mr. KEY spoke in reply to Mr. DANA, and in support of Mr. BASSETT'S motion. He defended the navy-yard at Washington against the imputations cast on it. Messrs. TALLMADGE and DANA spoke against the amendment. Mr. SMILIE spoke in favor of the amendment, and expressed his astonishment at the change which appeared to have taken place in the House since they had voted, 60 to 31, a few days ago, to reduce the Navy. Mr. KEY expressed his surprise that a gentleman having as much parliamentary experience as the gentleman who preceded him, should be surprised at the change of votes. A majority had voted to reduce, having different objects of reduction in view; but, when a reduction in any one branch of expenditure was proposed, it appeared that a majority could not agree in it. Mr. K. spoke again in favor of the amendment. The motion to strike out the section was lost, 52 to 40. Mr. KEY renewed his motion to insert "Washington." Mr. RANDOLPH opposed the motion on the ground of the unfitness of the situation of Washington, compared with others, for a navy-yard. Mr. MACON supported the motion; because he was utterly opposed to a navy, he said he wished that a navy-yard should be kept here, as members of Congress would be much sooner disgusted by seeing the expenditures of the Navy system, than by hearing of them. Mr. DANA, as a friend to a navy, said he wished the amendment not to prevail. The gentleman from North Carolina, an enemy to navies, wished to retain the yard at this place; he, Mr. D., a friend to them generally, wished to dispose of or disuse it. They therefore thought alike, though they should vote differently. The motion to insert "Washington" was carried--54 to 42. The section for reducing the marines was struck out, without debate--ayes 59. The committee rose, and reported the bill as amended. The SPEAKER resumed the Chair, and the House resolved now to consider the report of the Committee of the Whole. Mr. MILNOR said the bill had been much amended in committee, and as the remnant left amounted to very little, and the discussion of that little would probably cost more than would be saved by passing it into a law, he moved to postpone the further consideration of the subject indefinitely. WEDNESDAY, April 25. _Loan Bill._ The engrossed bill authorizing a loan for a sum of money, not exceeding the amount of the principal of the public debt, reimbursable during the year 1810, was read a third time. All the gentlemen who spoke against the bill professed to be willing in a proper manner to authorize a loan of any sum of money necessary to meet the appropriations made; but they contended that the bill was objectionable because the sum was not stated in the face of the bill, because the bill bore a deceptive appearance of borrowing money to pay the public debt, when, in fact, it was to meet the ordinary expenses of the Government; because the bill authorized a loan of five millions five hundred and sixty thousand dollars, more by one million one hundred and sixty thousand dollars than the Secretary of the Treasury had declared to be necessary, and because no loan ought to be authorized until bills now before the House were decided on, which involved a reduction of the annual expenditure. In reply to the objections to this bill, it was urged that the amount authorized (not required) to be borrowed was as definitely expressed as though in figures; that there could be no deception on the face of the bill, for, if no debt heretofore contracted was now to be paid off, there would not only be no occasion to borrow, but there would be an immense annual surplus in the Treasury; that, since the estimate of four millions had been reported to the House, various appropriations had been made, and it was impossible yet to say how much might be wanted, and no more would be borrowed than actually was wanted; that if the passage of the bill was delayed but a day or two, it would be very easy for gentlemen to prevent its passage at all. The bill was passed--yeas 77, nays 35. _Reduction of the Navy._ The House then resumed the consideration of the unfinished business of yesterday. Mr. MILNOR said when he had made the motion for the indefinite postponement of the bill, he had supposed that the sense of the House had been fully expressed on it; but as it appeared that the motion would occupy much time in debate, and as some gentlemen had thought proper to insinuate that the motion was made for the purpose of avoiding meeting a direct question on the bill, he now rose to withdraw the motion. The question was then stated on the first amendment made in Committee of the Whole, viz: to strike out so much as requires the sale of all the gunboats. Mr. MUMFORD hoped that the frigates would not be laid up in ordinary. He said he was no politician by profession; he had been called from mercantile pursuits against his inclination, but he had always understood that government was instituted for the protection of the citizen. He was chagrined when he saw the events unfolding in the Old World, and witnessed such a paralyzing system going on in his own country. He had hoped that some system would have been adopted for the protection of our commerce at sea. If gentlemen were determined to abandon the ocean altogether, he begged to know it in time before merchants were totally ruined, for it was impossible at present to carry on any commerce whatever. The part of the country which he represented (city of New York) felt it strongly; agriculture would feel it sooner or later. The enormous captures made of their property had reduced merchants to the alternative of staying at home, or having no commerce but with Great Britain. If gentlemen are disposed to surrender commerce to the discretion of the belligerents and retire from the ocean, it is time to know it. Mr. M. said he was no _motive-monger_; he never arraigned gentlemen for their motives. We have heard gentlemen say, "millions for defence and not a cent for tribute;" and a noble and popular sentiment it was. It seemed now to be reversed with them, and a plain translation of their speeches was, "millions for tribute; not a cent for defence." Various projects had been offered. Some gentlemen were for putting down the whole Army and Navy; others were for a sort of snail system, alarmed at the least apprehension of danger. Viewing the subject as he did, Mr. M. entreated that gentlemen would consent to protect commerce. The island of St. Domingo now possessed seventeen armed vessels. They were gaining strength daily, and what was the situation of our Southern borders? If our naval force was entirely withdrawn from the ocean, it was impossible for an army of militia to defend the mouth of the Chesapeake. He understood that two vessels were now building in Chesapeake Bay for St. Domingo. He knew that the Haytian agents had been in this country for the purpose of purchasing vessels. Under all these circumstances was it wise and prudent to discharge the Navy? He presumed the best course would be to put to sea what little navy we have to protect our own coasters, for they would be necessary without any view to commerce in the European seas. Under every view, instead of laying up those vessels in service, Mr. M. said he hoped that gentlemen would consent to fit out every vessel in the possession of the United States, and send them out to protect American commerce. A motion having been made by Mr. SMILIE to amend the bill so as to place the Navy on the footing on which it stood in 1806-- Mr. DANA said he was not for pausing with merely replacing the former system; he was also for guarding against the waste of public property and treasure which had taken place in the Naval Establishment. He believed that for the number of fighting men afloat the United States had been put to a much greater expense than was necessary. He was not speaking, he said, of our having few brave men on the water, nor of the great sums given anywhere to those who give us their blood; but the system of the navy-yards, he believed, required a thorough reform. If he was to judge of the general economy on board the frigates and smaller vessels from the little he had seen of them, he must set it down for certain that waste did not exist on board the vessels after they were fitted for service, and manned, and officered. As far as he had an opportunity to observe, he had marked a strong sense of subordination, and the practice of command at the same time sustained with gentleman-like propriety, without any unnecessary torture or rigor. In all this business, Mr. D. said, where you employ warriors, whether by land or water, that department called the staff, the agents, purveyors of supplies, &c., is the branch of the service to which you most look for waste. On merely casting the eye along the decks of our vessels, the conduct of the officers, and the manner in which the men behaved, indicated a sort of conduct which appeared to him incompatible with waste, laxity of discipline, or want of attention to duty. Generally speaking, the civil branch of the service was the reverse of this. Mr. D. adverted to the mode of equipping vessels, and reprobated the scrambling, which he had understood often took place for equipments, as incompatible with methodical arrangement, and correct distribution of supplies. It was wasteful and inconsistent with regular accountability. It was not the course pursued in the navy-yards of other nations. The commander of a man of war in other countries was not permitted to go into a navy-yard; he could not there claim to have every thing new on board his vessel. When every man was suffered to manage as he would, there was no security for the economical conduct of an establishment; for the more anxious was each commander to have his own vessel exclusively well equipped, the more would the public suffer. He was, therefore, for adopting some system of rigorous retrenchment--what it should be he did not know. In the nature of the thing he was confident it could be done; without it there must be much waste. At present, therefore, he was against striking out the frigates from the Naval Establishment. A reform in the expense was the great desideratum, not the abolition of the Navy. Mr. D. said he would submit to the House one consideration: the appearance which the passage of such a bill would present to the world after the resolutions passed at the commencement of the present session. For his own part, indeed, he had deemed it useless to make declarations of national independence, or to resolve against submission; but at the commencement of the session a resolution had been passed respecting what had taken place between Executive and the British Minister, and then Congress had pledged themselves to call forth the whole force of the nation to stand by and support the President. He had supposed this unnecessary, improper, and exceptionable in some respects. But at the same session, when the controversy was chiefly respecting maritime privileges, if they should not only reduce but sell the Navy, what would the world say, when they had seen the beginning and end of the session? Would it be possible that foreign powers could look up with any reverence to their acts? We shall, said he, be reduced to such a situation that even the apprehension of our hatred could not insure respect from foreign Governments, if we suffer our conduct to be so completely at war with our own acts. In order to possess some appearance of respectability in the estimation of others, the most expedient course would be to establish economy and provide for a less profuse distribution of the public moneys, but to retain the public armed vessels, that we may be in the condition for effectual service whenever it is deemed expedient. By this course we may save more of property as well as character than by an abolition of the Navy; and if we save both it is better than to save the one and lose the other. In allusion to a remark of Mr. MUMFORD against the bill, Mr. D. said that in regard to what was formerly said respecting millions for defence and not a cent for tribute, that doctrine was a very good one, but it had no connection with crawling within ourselves in time of danger--with the _terrapin policy_--with drawing in head and claws so that no part of the body should be exposed; and those who were for that course, (because really they had not provided any shell,) could not very well appeal for their justification to the doctrine of "millions for defence and not a cent for tribute," and yet he believed that the gentleman from New York himself had voted for that system of terrapin defence. Although, said Mr. D., I was against that thing, yet there were men distinguished for talents and worth, and who are eminent in the councils of their country, who entertained sentiments widely different. This policy was borrowed from the colonial system; we did not assume the spirit of a nation, perhaps; we recollected what we had done before when we were colonies, and perhaps gentlemen thought the efforts of children might succeed when they had attained to manhood. It was a delusion. If gentlemen, however, now see through their error, their desire to correct it ought not to be condemned. Mr. BASSETT was of opinion with Mr. D. that reform rather than reduction of the Naval Establishment ought to be their object. He was glad to find that when the Navy was brought into view, other ideas than those of mere commerce began to be associated with it. Heretofore it had only been advocated as a means for the protection of commerce. Mr. B. said he lived in a district which was sensibly alive to the benefits of a navy. The district which he represented had within it more water than land. It therefore became essential to the defence of his constituents that they should have a floating protection. It was impossible, in the nature of things, that they could be defended but by a floating defence. Surely there could be no gentleman in the House who was not sensible of the necessity of protection! It might be a favorite point in a monarchy to keep the country unprotected, and thus under the control of the Government, but the motto of Republics should be universal justice, equal rights, and common defence. He asked gentlemen to look at the magnitude of the object of defending our seacoasts, which could not be less than three thousand miles in extent, and, taking into consideration the sides of our navigable rivers, that extent would be doubled. If gentlemen would but for a moment consider the immense space which was exposed, they would see all the importance of securing an adequate defence. The House had been told, and certainly very truly, that there was a maritime force rising in our neighborhood. The House had been told, also, and told correctly, too, that at least two large vessels were building in their own waters for the use of that growing maritime power. At the very moment, said Mr. B., that we know that the blacks of St. Domingo are building vessels, shall we dispose of Our public armed vessels? Let me ask who will buy them when put into the market? Who but Christophe and Petion? It is reduced to a certainty that if we put them now to the hammer, they must go in that direction. I ask gentlemen seriously to weigh that consideration. The situation of our Navy is at present sufficiently reduced. We have only five frigates in actual service. The Chesapeake, for want of repairs, is now in harbor. If gentlemen are anxious that she should be laid up in ordinary, I would accord in it; but I would prefer to leave this subject entirely to the discretion of the Executive. I know, sir, how apt a proposition of this sort is to be met by a suggestion of Presidential confidence; but when we come to consider our particular situation, that we are putting it into the power of the President, not to add to the burdens of the people, but to relieve them, that will be thought a sound argument to justify the course of leaving the whole matter to the discretion of the President. The wisdom of the last and of the present Congress has kept in service five frigates. We cannot remain in session at all times; and we are at this moment, extremely doubtful as to the aspect our affairs will assume as to foreign nations. I would ask gentlemen if former experience does not warn us that if we have an accommodation with one belligerent, it will but lead to a wider breach with the other? But if this occurrence does not take place, and every thing should turn out happily, my proposition would leave it in the power of the Executive to secure the public against loss. The expense is not drawn upon us by the Executive, but it is such as the wisdom of the National Legislature has thought proper to incur. Therefore I think it fair to consider the subject in this way. As we are about to separate, and as present appearances would not warrant our giving up any species of protection, we shall be justified in giving a discretionary power to the Executive to put down such part of the Naval Establishment as he may in future think it justifiable to part with. I am not one of those who think the expense of the Navy a sufficient argument for disposing of it altogether. I have been asked what has the Navy done. I can answer for a large portion of my constituents, that it has kept them quiet in mind. Is it not important that the men who live on the seaboard should know that we have a force to repel attack? What sort of attack have we cause to expect? A serious invasion? Certainly not. The sort of attack which we ought to guard against is the predatory attack, made at small expense, to our great injury. If we do away the naval system entirely, our whole seacoast will be liable to be ravaged. A single frigate, a single privateer, a single pirate, might come into your waters and injure your citizens to a considerable amount. It has been mentioned, and I have seen an official intimation of it, that two or three vessels, in the shape of pirates, had stopped vessels at the mouth of the Mississippi. The force now embodied on the ocean is not more than adequate to the security of the nation against predatory warfare. I am willing, notwithstanding this, to leave it to the Executive discretion to lessen the burden. I regret much that at this period of the session we cannot go into an examination of the expenditures the gentleman from Connecticut complains of. I think it proper to observe that for one I shall be willing to receive his assistance in detecting abuses. I believe the gentleman at present at the head of the Navy Department has every disposition to correct them. But at the same time that is not sufficient for us. I do not know of any unnecessary expenses, or I should bring them to public view; I do believe there is not that want of system which the gentleman seems to suppose. This much I know, that at all the navy-yards are proper officers for distributing stores. There all the rigging, ropes, &c., &c., are kept apart, and, as far as a landsman, a lubber like myself, can judge, appear in great order. In relation to the smaller vessels it appears by the report of the Secretary of the Navy that they are in perfect repair. The expense of sailing them is the only expense. I cannot but again repeat, because I think it of the last importance, that the security which these small vessels gives us greatly outweighs all disadvantages of expense. If we can lessen the expense, let us do it, in the hope that at another session we shall be able to find out where the evil exists. It is generally said, when this subject is under consideration, that we cannot attempt to cope with Great Britain. Because we cannot, are we to succumb to others? To provide no protection against smaller powers? At this moment the master of an American merchant vessel is employed in the service of the Emperor of China, a country possessing the greatest population in the world, for the purpose of protecting the citizens of the Emperor against some small pirates. Is there a fact can speak more strongly to us, that, without some sort of naval defence, with such a seacoast as we have, (and let it be recollected, sir, that our seacoast is much greater in proportion to our population than the Chinese,) we shall be at the mercy of the worst of the human race? It was asked what mighty good the Navy has done. Let me ask the gentleman who asked that question, what mighty good our Army has done by land? When we consider the point of expense, let us consider the evils of different sorts. Let me ask gentlemen if the evils depicted to exist in Peru, where gold abounds, do not equal any thing they can imagine to proceed from the want of money? We must forget the evils that force produces in the necessity which exists for having it. We cannot say, because some evil results from force, that we will not have it; for, if you have it not, others will. Our own experience should teach us the necessity of it. What was the effect of our eloquent addresses, when colonies, placed at the foot of the British throne? They (the British) sent a fleet and army to Boston. They did not tell you power was right; but they said it with their fleet and army. Reason will tell us the same now; it is impossible to meet force but by force. The effects of naval force are well remembered. It is well recollected that in the Revolution Cornwallis marched from Charleston to Virginia. When he got there, a French fleet was on the coast. The very moment the fleet advanced by water, Cornwallis surrendered. Here was evidence of the effect of naval force. And it is by its efficiency that we must balance the great objection of expense. I have heard it stated here how much more expense a sailor is than a soldier. If we look to the fact, and contrast the efficiency of the two, we shall find that the superior efficiency of the sailor greatly outweighs the additional expense. There is one fact, very strongly illustrative of this principle, drawn from British history. It is found, by the papers laid before Parliament, that the present naval establishment costs seventeen millions annually. The expense of the army is nearly the same. With seventeen millions of water force, the navy of Great Britain makes her mistress of the ocean; with seventeen millions, the land force of Great Britain is contemptible. As concerns ourselves, all the attack we can expect to receive is on the ocean or on the seacoast, and we can by this fact see demonstrably that we can procure more protection for a certain number of dollars expended on the water than we can from the same number of dollars expended on the land. History shows that Republics are always naval powers; and navies have preserved their existence. The history of England, instead of destroying this argument, is in favor of it; the celebrated exploits of the Dutch confirm it. England, though a monarchy, is the freest in Europe, and all nations have enjoyed the greatest naval celebrity when they have been most free. A navy has no great general at the head of it, wielding an immense body of armed men. The commanders of ships have a very different influence. The admiral himself cannot act on the land. History does not show an instance where an attack was made on the liberty of a nation from that quarter. I am therefore disposed to give my feeble aid to support an efficient force upon the water rather than upon the land; and I believe the present establishment is by no means beyond what ought to exist. Mr. RANDOLPH said, that as his objections to the Navy went to the whole system, he would make his observations at large, in preference to reserving them in detached parts on the various details of the bill. My object, said Mr. R., is to endeavor to persuade the House that they ought not to concur in the report of the Committee of the whole House. I have ever believed that the people of the United States were destined to become, at some period or other, a great naval power. The unerring indications of that fact were presented to us in a tonnage and number of seamen exceeding those of any other nation in the world, one only excepted. When, therefore, I proposed to reduce the Naval Establishment of the United States, it was not for the pitiful object of putting down some five or seven gunboats and two or three unimportant navy-yards, or of making the mighty reduction contemplated in the amendment of the gentleman from Pennsylvania. In other words, it was for the purpose of making barely such a retrenchment in the naval expenditure as might enable Government, after such retrenchment was effected, to go on with the aid of loans and taxes. We had two views of the probable state of the nation presented to us during this session. The first was a view of war, in which case it was agreed on all hands that loans and taxes would be necessary; the next was a view of peace, in which case it was believed that loans and taxes were unnecessary, and was so pronounced from the highest authority in the country on financial concerns. But now it seems to have a view of reduced military and naval expenditure which does not obviate the necessity of loans and taxes. My object in the proposed reduction was not to enable the Government to get on with the aid of loans and taxes, but to make such a reduction as would have enabled the Government to dispense with a recurrence to them. I have said, sir, that the United States were, in my opinion, destined to become a great naval power; and I have read unerring indications of it in the commercial prosperity of our country, out of which alone it can grow. But I believe, if any thing could retard or eventually destroy it--if any thing could strangle in the cradle the infant Hercules of the American Navy--it would be the very injudicious mode in which that power has been attempted to be prematurely brought into action, and kept in action, during the two last administrations. Again, a naval power necessarily grows out of tonnage and seamen. We have not only driven away our tonnage, but have exerted ourselves with no little zeal, even at this very session, to prevent its ever coming back. We have not been willing to consent that vessels polluted by the unpardonable sin of a breach of the embargo should return. True it is, that we have not made the same provision in relation to seamen: we have conceived the guilt rather to reside in the wood or iron, than in the men who conducted it. But, although we have no provision for the express purpose that they should not return, unfortunately they have not returned; and the proof of this fact is evinced by another, viz: that landsmen are at this moment employed on board our few ships of war, because seamen cannot be procured. Our tonnage and seamen, then--the sinews of naval power--are wounded by our own measures, to a considerable degree. Again: it has always been understood, according to my view of the subject, that one of the principal uses of a navy was to protect commerce; but our political rule for some time past has been that of inverse proportion, and we have discovered that commerce is the natural protector of a navy. The proof of this is found, if not in every act of this House, certainly in most of the speeches delivered on this floor. I need only allude to a speech made by a colleague of mine, (Mr. GHOLSON,) who usually sits on my right hand, a few days ago, in which he stated that the power to regulate commerce was specially given by the constitution to the United States--not as a means of raising revenue, equalizing duties throughout the United States, and making all in fact one family--but, that it was put into the hands of Congress as a scorpion-whip to bring the other nations of the world to our terms; that, by turning away the light of our countenance--the sunshine of our commercial bounty--they might wither and decay. I had always thought too, sir, that the revenue which a Naval Establishment naturally calls for was to be founded on commercial greatness; in other words, that commerce was to give us revenue, and revenue was to support a navy, which in return was to protect commerce. But, it seems we have changed all this--we have perverted the whole course of procedure--and why? Sir, shall we keep up an expensive Naval Establishment, necessarily driving us into loans and taxes, for the protection of a commerce which the Government itself says we shall not carry on; and when members of this House tell us that the natural protection of commerce is the annihilation of it? The Navy has now become a sort of fifth wheel to the political coach, and I am unwilling to keep it up, at this expense, on these grounds. If, sir, the construction which I have taken of the sense of the House and of the Government be not correct, whence comes it that we have such cases before us as that of Daniel Buck? Whence comes it that we hear of Treasury instructions, not issued in the first instance for the purpose of expounding a law touching the clearances of vessels, that uniformity may prevail in the different districts, but supplementary instructions, becoming in practice the actual law of the land? In other words, if my construction be not correct, whence comes it that every principle formerly called federal--every principle of Executive energy and power--has been strained of late to an extent heretofore unparalleled? Whence comes it, that in the archives of this Assembly, we find copies of licenses given by the Executive power of the nation--to do what? To permit one part of this confederacy to supply another part with bread! We have had Executive licenses, graciously permitting that a portion of our citizens should not starve while the rest were revelling in plenty, and suffering for want of a market! Let us suppose, that in the fragments of history of the ancient nations of the earth, of those periods which are most involved in obscurity, we should find an Imperial rescript to this effect, what would be the inevitable conclusion of the historian? That, if the Chief Magistrate of the Government could at pleasure starve one part of the people while another was rioting in plenty, that the individual who held this power was the greatest despot on earth, and the Government a purely unmixed despotism. But, sir, it would be improper to draw any such conclusion here, because we are the most enlightened people on earth--I believe we have placed that on record. It was nothing but the protection of the Navy of the United States, and a desire of avenging the attack on the Chesapeake--for, among all the causes of the embargo, we hear of none oftener than the attack on the Chesapeake;--it was nothing but a defence, not only of the commercial interests, but of the naval strength of the nation, which created this dictatorship in the person of the Chief Magistrate. It was not that we are naturally more prone to slavery than others, but it was for the preservation of our national defence, (if that be not positively opposed to national defence which costs four millions, and which, when Greek meets Greek, and the tug of war comes, must take refuge under such measures as those I have mentioned.) No, sir; my object in the bill which I presented to the House was a great one: it was to enable us to dispense with a loan to the acknowledged amount of $5,150,000--to enable us to dispense with taxation, to an amount which no man can calculate, (if, indeed, the system which passed this House was constructed to bring in revenue at all). It was not a little, paltry affair of reducing a couple of navy-yards; not to bury the dead, who have been already interred in the marshes of the Mississippi; not twice to slay the slain: it was for a great public object. Really, sir, the reduction of the gentleman from Pennsylvania (Mr. SMILIE) reminds me very forcibly of an incident which is said to have taken place at the discovery of the gunpowder plot. When commissioners were sent into the Parliament vaults, to examine into the situation of the gunpowder and combustibles collected together for the purpose of blowing up the King, the Parliament, and the whole constitution, they returned and reported that they had found fifty barrels of gunpowder; that they had removed five-and-twenty barrels, and humbly trusted that the remaining five-and-twenty would do no harm! This is precisely the reduction which the committee and the gentleman from Pennsylvania have agreed to make. It is a reduction which will not do any effectual service, and I therefore hope the House will not accord in it. But, we are told that great and gigantic events in Europe are to be arrested. That which the British navy cannot do, I suppose, or that which the combined Continental forces opposed to her cannot effect, is to be decided here by three frigates; for that is precisely the extent to which, if I understand him, he is willing to go. It seems, we are also to suffer a total loss of the ships to be sold, they being unfit for every other purpose. Are they unfit for the East India trade? Was not the first vessel which ever doubled the Cape of Good Hope, under the flag of the United States, the old frigate Alliance? And would not these vessels, if sold, be purchased for that and for other purposes; more especially when we consider the immense loss of tonnage which the United States have sustained--I will not say how, but when--within the last two years? But this, if well founded, would be no objection with me to the reduction of the Navy. I am willing to put a clause in the bill to authorize the President to _give_ the frigates away, if he cannot _sell_ them. My objection to the expense is not merely to pounds, shillings, and pence--not merely to the counting-house calculation--but to expenses utterly incommensurate to the object to which those expenses profess to go, and to a system of organized public plunder. If we agree to make this reduction, however, according to the statement of the gentleman from Virginia, (Mr. BASSETT,) foreigners will purchase from us ships of the best construction in the world, on the best terms. I believe, if the gentleman's knowledge on the state of our public ships was as accurate as perhaps it is on other subjects, he would hardly suspect foreigners of coming to our markets for the purpose of buying those ships to annoy our commerce. Who will become the purchasers--Great Britain? After having given her hundreds of thousands of tons of your shipping now sailing under the British flag, and manned her navy with your seamen driven from your employment, do you believe the Admiralty will send across the Atlantic to buy the hulks rotting at the navy-yard; or would it be a formidable accession to the British navy, especially when four of these vessels are absolutely unfit for any purpose whatever? I presume that even the Emperor of France, if it were an object with him to have these famous models of naval architecture at Antwerp, would hardly venture to purchase them, and run the risk of getting them across the ocean. I conceive you could hardly get insurance done on them at Philadelphia or Baltimore. The idea of keeping these vessels is absolutely idle, unless gentlemen are disposed to send their commerce on the ocean, and employ force in the protection of it. Sir, I am extremely exhausted already--and I presume the House are fully as fatigued with me as I am with myself--but I will endeavor to go along with my loose remarks. The panegyric which the gentleman from Connecticut (Mr. DANA) has been pleased to bestow on the American naval officers, I have not the least indisposition to subscribe to, so far as my knowledge will permit me to go. As far as my information extends--as far as I have the pleasure, and I may add the honor, of being acquainted with those gentlemen--there is no class in society whom I think more highly deserving. And I did hope, when the gentleman went into this eulogium on the one hand, and inference at least of censure on that which he has been pleased to term "The Staff of the Navy"--but which I suppose I may as well call the _civil branch_, who have the control and management of the civil service; not the men who fight the battles, but who pocket the greatest part of the emolument--that he would have been more particular. Sir, I do know that comparisons are extremely unpleasant, and no consideration would induce me to go into them, especially after the observation of my friend before me, (Mr. MACON,) but the discharge of an imperious public duty. I can have no hopes of deriving any thing further than experience from the past Administrations. It is to make use of this experience that I call the attention of the House to the comparative expenses of the Navy under the several Administrations. I find, from the Treasury statement in my hand, made on the 5th of this month, that the Navy under General Washington's administration, cost $1,100,000; that during the four years of Mr. Adams's administration, it cost $9,700,000, in round numbers; that, in the eight years of the succeeding Administration, it cost $12,700,000. I make these remarks, because the statement differs from that made by the worthy gentleman from Connecticut in this respect; that, when he made the expenditure under the last Administration to amount to fourteen millions, he did, in my opinion, improperly saddle that Administration with the expenditure of the year 1801, viz: $2,111,424, authorized and voted under Mr. Adams's administration. From the mere glance at this paper it will be seen, that from 1801 to 1802, the expenditure fell from the above sum of $2,000,000, to $900,000, marking distinctly the retrenchment at the period of Mr. Jefferson's accession. The first year properly chargeable to the last Administration is that succeeding the one in which they came into office, viz: 1802. I find, also, from a comparison of the statements in the same document, that the most extravagant year of the second Administration was the year 1800--the year after I first had the honor of a seat in this House--when the expenditure amounted to $3,448,716. The most extravagant year of the last Administration was the year succeeding its going out of office, the expenses of which were incurred and voted by it, viz: to the amount of $2,427,758. Against the administration of Mr. Adams, I, in common with many others, did and do yet entertain a sentiment of hostility, and have repeatedly cried out against it for extravagance, and for profusion, and for waste--wanton waste--of the public resources. I find, however, upon consideration--whether from the nature of man, or from the nature of things, or from whatever other cause--that that Administration, grossly extravagant as I did then and still do believe it to have been, if tried by the criterion of the succeeding one, was a pattern of retrenchment and economy; and I ask the House to put the question to themselves, whether we are likely to see, at any future period, an Administration more economical than that of which we have just now taken leave? And this I say, without meaning to cast the slightest imputation on the present. The person now at the head of affairs, has, at least in one respect, conducted himself in his high office in a spirit dear to my heart--it is the spirit of a gentleman. The first session of Congress under the last Administration was a period of retrenchment. Throw the session of last summer out of the question, and this must be the session of reform under the present. Have we any reason to conclude, from what we have seen or heard, that we can look forward to any policy more economical than that of the Administration of which we have just taken leave? I wish it to be clearly understood, that in the year 1800, in which our expenses amounted to $3,448,060, we had three 44-gun frigates; six frigates, from 44 to 32; two of 32, of a large size; four of 32, smaller; eight from 32 to 20; three sloops of war and four brigs, from 18 to 16; and five brigs and schooners, from 14 to 12 guns--employing a total of 7,296 seamen. This Administration, too, it should be remarked, not only built every frigate, every vessel of respectable force--yes, sir, built them from the stump--which the United States now have, but many others, which have been since sold, and the proceeds of which have gone into the Treasury. At this time, then, when the United States had this formidable force afloat; when nearly 8,000 seamen were employed; (I know the documents only state 7,300, but I am told from the best authority there were nearly 8,000;) when our flag at least triumphed in our own seas; when we had nothing of that system of drawing within our shell, which the gentleman from Connecticut so justly derides; when we had not reached the soft-shelled state in which we were placed by the non-intercourse law;--at that time, the Navy of the United States cost nearly three millions and a half, making for each seaman about $472. I know, sir, that these statements are dry, but they are useful in proportion as they are dry. According to the statement which my colleague (Mr. BASSETT) has made, and which he has told you not only came from the Secretary of the Navy, but was in the Secretary's own handwriting, the number of seamen which he had last year in employ was 2,723, which cost the nation $2,427,000--for each man employed, within a trifle of $900! Now, sir, if every seaman under the last Administration cost double the expense which was incurred for the same man under the preceding one, if the same system is continued, we have no reason to doubt that the seamen next year will cost double of their present expense. But, even suppose the expense to remain the same as it now is, will the Representatives of the American people agree to maintain a naval force which costs us $900 (within $13) per man, the use of which no man has attempted to guess, much less to demonstrate! I wish to be indulged in a little further comparative political economy. I believe, sir, that the same good results in politics from comparing the merits of different Administrations, that results in medicine and surgery from the dissection of the human body--that they are fairly to be tried by the same rules. I find, then, that in the year 1800 the estimated pay of the officers is $391,000, and that the estimated pay of the seamen in the same year is $818,000. And yet, sir, by the estimate now before me, and which any gentleman can turn to, made for the year 1800, the subsistence of the officers, their pay, and that of the seamen, amounts only to $296,000--a sum less, by nearly $100,000, than the estimated pay alone of the officers in 1800--while the expense of the whole Establishment approach for the last year within $1,000,000 of the expense of the year first mentioned. I am at a loss to account for these manifest inconsistencies, and I might say solecisms, in our political arithmetic. We have a Navy which we are told employs 2,700 men, which costs within a third as much as a Navy employing nearly 8,000 men, and yet, when we come to compare the great objects of expense--to wit: pay and subsistence of the officers and seamen, the reward of valor and merit--we find a contrast which I believe no man in this House is prepared to explain. Now, sir--for the whole subject, thank God, is now before us--let us look at the expenses of the Marine corps. I have always understood that marines were necessary in proportion to the extent of the Navy--that such a force is put on board of every ship of such a number of guns. I find that in the year 1800, when we had nearly forty ships of war in commission, manned with nearly 8,000 men, the expenses of the Marine corps amounted to $162,000; and in 1809, when we have ten or fifteen vessels of all sorts, manned with 2,300 seamen, the expense of the Marine corps amounts to $211,000. And yet, sir, if we look at the items, there does not seem to be a very great variation between some of the most important--for instance, I find that the clothing in 1800 was estimated at $33,000, in 1809 at but $32,000--and yet, the troops whose clothing costs $1,000 less, cost in the aggregate $50,000 more. But, if we look at some of the items of this account, we shall be struck at once with the difference. The pay and subsistence for instance in 1800 was $102,000, in 1809 it was $160,000. I have been at the pains even to note the prices of the most material articles of provision, and find that in the old estimate beef is rated at $13, pork at $14, and flour at $10 per barrel; while in the last year the same articles stood in the estimate of $14, $18, and $8. The material article (flour) being much lower than in 1800, and the market value of the others also, I believe the inference would necessarily follow, that the subsistence ought to have been cheaper. But, sir, look at their establishment at the navy-yard, and I believe we shall want no ghost--certainly no argument of mine--to show the cause of this difference of expense. Then comes the navy-yards. Of these, that of Washington alone has cost nearly one-half of the sum expended on them all. Well might my colleague say it was worth as much as the whole, when it had cost as much; when, indeed, we have witnessed a considerable town--and the most flourishing town, too, in this wide region called the City of Washington--built out of the public treasury. Yes, sir, we have economized until we absolutely have reduced the annual cost of a seaman from $472--as it was under the very wasteful expenditure of Mr. Adams's administration--down to the moderate sum of $887! We have economized until a paltry fleet, consisting of vessels built to our hand--to say nothing of those that have been sold, and the warlike stores of which have been retained and preserved; which fleet was built, equipped, and every cannon and implement of war purchased under the old Administration--has cost us $12,000,000, when it cost the preceding Administration but $9,000,000! Is this no argument for reduction? The gentleman from Connecticut (Mr. DANA) tells you he does not wish an annihilation, but a reform of the Naval Establishment. Sir, as long as a single chip remains in that navy-yard, you will never see any thing like reform; as long as you have a chip of public property--one chip of live oak belonging to the United States--you will have a man riding in his carriage, with a long retinue and deputies and clerks to take care of it. And, sir, if the gentleman from Connecticut does not mean utterly to disgust the people of the United States against a navy--if in truth he is a friend to a navy--he ought to join and put down this navy-yard, and not, with my friend from North Carolina, (Mr. MACON,) keep it up, in hopes the enormity of the evil will at some time or other correct itself. Among the many reasons offered to this House for retaining the various parts of this Establishment, no one said a word in favor of the Marine corps--that went _sub silentio_--but a great deal was said in favor of Washington. We were told that our fleet might be _Copenhagened_, and that it was therefore necessary to stow it away here. We also heard of the great press of work in the large towns--of the mercantile employ which there came in competition with that of the United States. I believe, sir, that our workmen, and men of all descriptions, from the highest to the lowest--I speak of subordinates--have long ago found the truth of the old proverb, that "The King's chaff is better than other men's corn." But it seems, that in order to get a commodity cheap, we are not to go where it is to be had--oh no, _there_ is competition!--but we must bring workmen here in the mail-coach, by which conveyance I understand not only _live stock_ for the navy-yard but copper bolts, and such _light articles_, are sometimes brought, I suppose, to get out of the way of competition--competition in the markets of Philadelphia and Baltimore, where they are bought at private sale. In this way have seamen, in some instances, been conveyed; and unquestionably every material of ship timber and naval store has been repeatedly brought from Norfolk to this place at an immense cost, worked up here by men collected from Baltimore, Philadelphia, &c., in order that, so worked up, it might go back to Norfolk, there to remain. But, sir, if our object really be to prevent our fleet from being _Copenhagened_, we had better put it above the Falls of Niagara. There it would unquestionably be most secure, unless the party on the other side of the lake should fit out a fleet to attack it; in which case, I suppose, we must resort to another series of measures similar to those lately adopted for the protection of commerce and the Navy. An embargo to protect ships of war! This is, indeed, putting the cart before the horse. We are to have a navy for the protection of commerce, and all our measures in relation to it are calculated on the basis of keeping it (poor thing! like some sickly child) out of harm's way! On the same principle of economy on which the navy-yard is kept up here, viz: for fear that merchants and others should come into competition with the Government, I presume, we have sent abroad for workmen to carry on the public buildings. If the navy-yard is to be kept up here merely that it may be under our eye, I would humbly suggest, sir, that we first pluck out the beam that has so long blinded us. We need only to do that to see this building falling to pieces over our heads; and yet an enormous appropriation is called for towards finishing it, which I have no doubt my worthy colleague (Mr. LEWIS) will press very strongly before the close of the session. I had forgotten the gunboats; and perhaps the best notice which can be taken of them, is that which is taken on some occasions of other things--to pass by them with contempt. They are not worth bringing into account, except for their expense. Children must have toys and baubles, and we must indulge ourselves in an expense of many millions on this ridiculous plaything! But, sir, the sale of our superfluous vessels met with the high objection that they were to be purchased up by Christophe and Petion, and that the constituents of my colleague (Mr. BASSETT) are to be terrified, if not into bodily fear, at least out of their peace of mind, by these vessels; and, at the same time, we are told that Christophe was in such good credit, only forty miles off, that vessels are building at Baltimore for his use; and yet, sir, no gentleman has brought forward a bill making it penal to supply these barbarians with ships of war and warlike stores. In other words, sir, to avoid the possibility of Christophe and his seamen foundering on board these rotten hulks, my colleague would much rather drive him into Baltimore, where he can purchase good vessels, which will answer his purpose much better than these frigates, which the barbarians would not know how to manage, and which are not calculated, from their great draught, for predatory warfare in the West India seas. My worthy colleague has given us a curious illustration of the superiority of naval over military force, by comparing the navy of Great Britain with her army. I suppose, if the argument were retorted on my colleague by a comparison of the army of Bonaparte with his navy, he would say that the same amount was not there expended upon the navy as upon the army; whereas in England, the amount of money expended on each is equal. But, does not my colleague know that one and the chief cause of the superiority of the British navy over the army, is, that in the navy men rise by merit--that they do not get in, to use a seaman's phrase, at the cabin windows--and that the army, if we give credit to the Parliamentary investigation, is a mere sink of corruption--a mere engine of patronage--a place in which a corrupt commander-in-chief acts according to his vile pleasure, and the pleasure of all the pimps and parasites and harlots who environ him. This, sir, is the cause of the superiority of the naval over the military force of Great Britain. But, when the British navy shall have effected what the armies of other nations from time immemorial have done--when it shall have subjugated whole continents--then will I agree in the superior power of naval over military force. I have no hesitation in saying that I would rather vote for naval than military force, and it is because a naval force has not the same power as a military one. I have never heard of a despotic power created by a naval force, unless perhaps in the chieftain of a band of pirates. But it would appear that the politics of my unfortunate friend from North Carolina, (Mr. STANFORD,) who sits near the Speaker, are a mere counting-house business of pounds, shillings, and pence, or dollars and cents; that, in fact, the spirit of lucre is transferred from the warehouses and counting-rooms of the merchants to the tobacco-fields and cotton plantations of the Southern planters; and that, to such a pitch has the patriotism of the mercantile class risen, that they are really ready to sacrifice one-half of their property for the protection of the Government of their country. If the gentleman from New York (Mr. MUMFORD) will permit me, I will protest against this idea. I have once before protested in company with that gentleman, and I hope he will permit me to protest, even when I have not the sanction of his respectable authority. With regard to the politics of my worthy friend from North Carolina, I recollect very well, in the days which were called the days of profusion, patronage and terror, his politics were not of that minute and microscopic grade that no scale could be graduated sufficiently low to measure them; that, if his republicanism was a matter of pounds, shillings, and pence, then and now, it was not that sort of republicanism which was too cheap to be measured by the value of the smallest known coin, even by a doit. I really feel something like sympathy with the gentleman from North Carolina--and it is not at all to be wondered at; for the republicanism of that gentleman used to be that which I always have professed--and if the remark applied to the gentleman from North Carolina, who I believe is not yet quite out of the pale of the political church, how much more forcibly did it apply to an unpardonable political sinner like myself! With respect, sir, to this patriotism, or this republicanism, that has left the tobacco fields and cotton plantations, and taken up its dwelling in the counting-house, I beg leave to express my doubt of the fact. I never have had that high opinion of the mercantile class expressed by some gentlemen in this House. I think of them as of other men--that in proportion to the temptations to which they are exposed, so are they virtuous or otherwise. But, sir, I have not and cannot have confidence in a man to whom the great Emperor has given a paternal squeeze, whose property is sequestered at Bayonne or St. Sebastian--I disclaim any thing like personal allusion; I speak of a class--I cannot have the confidence, on the subject of our foreign relations, in a man so situated, that I can have in the planter or farmer whose property is growing on his land around the house in which he nightly sleeps--and why? Because, _mutatis mutandis_, I should not have the same confidence in myself. I should not believe it possible, if I had rich cargoes under sequestration in France, that I could vote free from the bias which the jeopardy of that property would throw on my mind. Sir, I have been very irregular, because I have been compelled to follow, not the current of my own ideas, but the objections started by gentlemen in different quarters, and (as it is the fashion to express it) on different sides of the House, whom I have found united against the bill as reported by myself. I would ask, in a few words, if we ought to continue this establishment in its present state? I ask if it is necessary? For the expense of a navy has been proved to be in inverse ratio to its utility. To what purpose do we keep up the Marines, another branch of the Establishment? If I am correctly informed, these men are willing to run away whenever they have a chance to desert--if they can get an opportunity--and I am willing that they shall quit the service without being exposed to be brought to a court martial for desertion. Nothing, indeed, was said on the subject of the Marine corps, when the gentleman from Maryland (Mr. KEY) moved to strike out the whole section of the bill. Fertile as the gentleman may be in reasons, he did not offer one. He must have supposed it to be perfectly correct that a Marine establishment should be kept up for a navy employing 2,700 seamen, more expensive than the same establishment for a navy employing 8,000. It was, indeed, facetiously urged in the select committee, as a reason why these men should be retained, that they came to this House regularly on Sundays to serve the Lord--to assist at the weekly pageant here performed. Sir, far be it from me to say, or even to think, with the Protector Cromwell, that this is a House where the Lord has not been served for many years. But, permit me to state, that in our country, it is the practice to pay no man out of the public purse, even for advocating the cause of other people with the Most High, much less for advocating his own. In other words, that when men with us serve the Lord, they do it at their own expense. We have heard to-day, sir--and I hope the report of Congress at their next session will verify it--that a grant of power to the Executive in relation to any subject--say borrowing of money--does not necessarily imply an exercise of that power. We have heard, too, that notwithstanding the power devolved on the President of the United States, by the bill authorizing him to borrow to an amount of upwards of five millions of dollars, which this day passed this House, to enable the Government to get along, we shall at our next session probably be presented with the joyful tidings that it is not necessary to make use of the power, at least in its full extent; but it depends upon our own act, whether this expectation be realized or not. We are, in this instance at least, of that description of prophets who have it in their power to bring about the event they predict. And I do earnestly hope that the House will not, by a disagreement with the report of the select committee, insure the defeat of their hope--the nonfulfilment of the prediction. I hope we shall take up the subject, and go through with it; that we shall account, and account rationally too, for some of the facts at least which I have presented to the House this day, in terms extremely defective, I know; but the time was short--now or never--and I presented them in the only mode in which I could possibly do it. In the course of my observations, I think I forgot to mention that when the United States kept forty sail of armed vessels afloat, and employed 8,000 seamen, we had no navy-yards at all. If we had, there must have been some extraordinary oversight committed by the then Secretary of the Treasury; and I believe politicians were not any more apt then than now to omit any items of public expense; they crowded in all they could. In the estimate which I hold in my hand, there is no item of that expense. I hope, if the House agree (which God forbid!) to so much of the report of the Committee of the Whole as retains the frigates and ships of war, that they will at least consent to put down the navy-yard at this place, and break down the supernumerary Marines. Really, sir, I am fond of music, but I do not mean to grant $211,000 of the people's money annually for a song. I hope at least that the Marines will be reduced, and that we shall retain at least not more navy-yards than ships. What would an honest Dutchman in the West think of a man who kept as many stables as horses, and those of the most expensive construction, too? I have done, sir. I have endeavored to discharge my duty. No man is more sensible of a failure in the manner than I am; but I will thank any one to convince me of the utility of a navy, according to the doctrines and practice of the new school, and to facts, as far as they have been stated. Mr. BASSETT said that his colleague could not always adhere to the principle that it was his duty to ferret out every error. Error is the lot of human nature, said Mr. B., and no one is infallible. Give a small authority to-day, and it will increase to an unexpected amount before to-morrow. I am authorized to state that such has been the case in the Navy Department; that under the late Secretary of the Navy large expenses had been incurred; and that before he left his office he commenced a reduction of them. Since the present Secretary (Mr. HAMILTON) has been in office, the expenditures have been much reduced. In the navy-yard at this place, for example, a permanent reduction has been made in the expenses to the amount perhaps of 30 or 40 per cent., and a very considerable reduction also as to immediate disbursements. It is nevertheless our duty, after the suggestions that have been made, to commence a thorough investigation, and I can only regret that the subject has been introduced to our attention at so late a period of the session. Instead of regretting what has been said, I am glad of it, and hope that at an early period in the next session an investigation will be made. Without any particular direction of the House, the committee of the Naval Establishment thought it their duty to examine the whole establishment at the navy-yard in this city. All the good expected from doing so was to convince them that the eye of the Government was upon them. I am proud to say that not only myself, but every gentleman of the committee with me, was much pleased with the appearance of things as they stood. It was not in our power to investigate minutiæ. On visiting the establishment of the Marine corps we saw every thing in order; we saw the armory establishment, wherein we discovered that arms which had been injured were usefully and handsomely repaired. As well as we could discover by the eye, every thing was pleasing to my mind--and one innovation in discipline in the Marine corps gave me very great satisfaction, viz: the substitution of solitary confinement for personal chastisement. In the navy-yard, the expense of which has been much complained of, we saw great piles of useful buildings. These were not constructed without cost. The present establishment there, in addition to store-houses, &c., consists of an extensive forgery, where all the iron work for the navy is done, a lead foundry, a brass foundry, where articles are made out of worn-out old metals, which otherwise would be of no use. I was desirous, both for my own information as well as that of the House, to procure an account of the work done at the navy-yard, to compare it with the expense--for that is the only way of fairly estimating the value of the establishment; but the time allotted to us during this session is not sufficient to attain that object. Some facts I will also mention, which, though not from an official source, are known to me as matter of fact, viz: that the vessels now in service have been lately repaired in so complete a manner that they are worth more than when they were built. The President, the United States, the Chesapeake, Essex, John Adams, and others, were repaired at the navy-yard at this place, besides the Congress, now repairing. There have been several small vessels also built here. In short, I believe that since the establishment of the navy-yard here, there has been but one vessel repaired any where but at this yard. The Constitution was repaired at Boston. When we come to get the account of the expenses of that ship's repairs and compare them with the expenses of repair at the navy-yard in this city, we shall know how to appreciate that object. A full examination of it would, I feel convinced, entirely reconcile us to the great amount apparently expended here. A remark made by the gentleman from Connecticut (Mr. DANA) here applies with great force: that it was indispensably necessary to economy that there should be system and order; and how shall we accomplish that object but by regularly established navy-yards? Can you have economy when you go into market to bid for what you want? Can you expect system and order unless you pay for it? You cannot. Money is well laid out if it be done with honesty and integrity to pay for system and regularity. I did not yet mention one particular fact on the subject of naval equipments, which I should have done, in the article of sail cloth, making an immense difference in the expenditure of 1799 and 1809. The gentlemen acquainted with the prices at these times could inform the committee that the difference in the prices of sail duck is somewhere about 100 per cent. I will mention another fact: that although the President has power to employ 5,000 seamen, he has employed but 2,700 men, who have received bounties. Sound economy would authorize the retaining them a few months longer, till we come here again in the fall, till we know whether it be proper to disband them or not. Although friendly to a naval force, I am not for keeping up any great naval force when there is no appearance of danger. At the present evil time, when every thing is uncertain, I am not for giving up one single atom of defence. If gentlemen will but cast their eyes along our seacoast, and look at our unprotected waters, at the situation of my particular district, they would like me feel the necessity of some floating security; they would feel the value of that peace of mind necessary to me and to my constituents. With these observations I shall dismiss the subject. Some further remarks were made by Mr. MACON and Mr. RANDOLPH. The question was stated on concurrence with the Committee of the Whole in striking out so much of the bill as directs the unconditional sale of all the frigates but three. Mr. RANDOLPH called for the yeas and nays on this question, considering it the pith and marrow of the business; and as the vote would show who were the navy and who the anti-navy men in the House. Mr. SMILIE said it would be remembered that his object in voting to strike out this part of the bill was to introduce the amendment he had offered in Committee of the Whole, viz: to place the Navy on the same footing as in 1806. The following were the votes on concurrence with the Committee in striking out so much of the bill as relates to the frigates--yeas 76, nays 32. So that part of the bill was struck out. The first section, which requires the dismissal of all the seamen in service, except so many as sufficient to man three frigates, &c., was struck out--ayes 60. The next amendment made by the committee was to insert "Washington" among the navy-yards to be retained. The yeas and nays on concurrence with the committee--58 to 46. So the navy-yard at Washington is among those to be retained. The next amendment was to strike out the section of the bill which reduces the Marine Corps to two companies. Mr. RANDOLPH said on recurring to the documents he found the price of the ratio in 1800 to have been 28 cents, whilst in the last year it was put 20; so that rations were now nearly a third cheaper than they were nine years ago, and the difference in the expenses of the Naval Establishment was, therefore, the more unaccountable. I had also taken it for granted, said Mr. R., that my colleague (Mr. BASSETT) was right in his statement of the seamen's wages being only eight dollars per month. But, sir, here is a statement on the subject--and I only wish that in the estimate of last year we had had the same valuable details as there are in the estimate of the year 1800--for the estimate in relation to the Navy Department for the last year is most shamefully deficient, as I could demonstrate if the House had time and patience and I had lungs. I find that there is in this estimate of 1800 a minute and detailed statement of every item of expense. Instead of the wages being eight dollars then and twelve now, as my colleague has been told, the pay was then for able-bodied seamen seventeen dollars per month, ordinary seamen twelve, and boys eight; so that this saving in the pay does not account for the monstrous difference. I have not time to examine into the article of duck, but I believe the gentleman's duck will not swim any more than the rest of his arguments. I trust, sir, that the House will not agree to the report of the committee for this reason: Referring to these documents, I discover that in 1800, when we had nearly 8,000 seamen, we had 890 marines; and in the year 1809, when we have only 2,700 seamen employed, we have agreeably to estimate precisely the same number of 890 marines. It would appear that something has taken place to render this species of force peculiarly valuable, or that these gentlemen possess a very successful art of keeping in, of not going out with others. And, sir, when I recollect the statements which I have heard on this floor and the sources whence some of them have probably been derived, I am not at all surprised that this navy-yard and this Prætorian camp, and everything connected with it, should keep up to the old height when every thing else has diminished. Eight hundred and ninety men! Call them 900, and you have one mariner for every three seamen. I have no doubt, if the House act on the principle on which they have done heretofore, that we shall have very polite assurances that these men are of the greatest imaginable service and have wrought wonders in defence of the country, but I cannot for my soul understand how this species of force goes to quiet the mind of my colleague or of his constituents on the Chesapeake. I have done my duty on this subject, sir. From whatever motive, of that motive I am alone the human judge. I have acted the part of a real friend to the Administration of this Government. Like my friend from North Carolina, I belong to that "faction" which brought him from a minority to a majority on the very ground I now occupy. I have heard before of a people being their own worst enemies--but what shall we say to an assertion that persons selected from the people for their wisdom and discretion, should be their own worst enemies? Is it to the interest of the Administration that these abuses should continue, and that loans and taxes should be resorted to to cover them? Who, sir, are the true friends--I do not speak of motives--who in fact are the true friends of Administration? Those who move to abolish and retrench, or those who persevere in keeping up such establishments and resort to loans and taxes to defray the expense of them? Are you willing that any part of the loan authorized by the act which unhappily passed this House this morning should be borrowed for the purpose of keeping up as many marines as were deemed necessary in 1800, for treble the amount of naval force--and we then said it was a Government of profusion and patronage--yes, sir, we heaped a great deal of opprobrium and many hard epithets on it. I am just as tired now of maintaining idlers, and dissolute idlers too, out of the proceeds of my property as I was when I first came into Congress--and I care not whether it be under the Administration of a President called Republican, or of a man called a Federalist. I could repeat the very words then used. I do say that I never see one of those useless drones in livery crawling on the face of the earth that my gorge does not rise--that I do not feel sick. I see no reason why we should not maintain sturdy beggars in rags as well as beggars of another description in tinsel. I have as much respect as any one for the man who risks his life in his country's service--and I have shown it; but the man who has drawn on a livery and quartered himself on the public because he has not sufficient capacity to get a living elsewhere, I will not foster. The change may be rung to the end of time--gentlemen may talk about pounds, shillings, and pence, as long as they please, but these men shall never have a single cent of money with my consent. I wish every ploughman in the country could come and see these people, keeping equipages, living in splendor, in palaces almost--I hardly know five men in Virginia who could afford to live in such a house if their fathers had left it to them, much less if they had it to build, as some of these people occupy at the public cost. But because this proposition for reduction is made by a somebody, the cut of whose face or the cut of whose coat we do not like, we are to go on maintaining these locusts for spite. It is impossible to prevent the people from reading this. It may be said these are Federal lies. Ten years ago the same things were said to be Democratic lies; but they were tested by the most enlightened among the people, and found to be truth--even the story of Jonathan Robbins was then all a Democratic lie. You are to keep up the same number of marines that Mr. Adams kept up, but you maintain them at one-fourth greater expense, when not a man who hears me can pretend to designate the service they perform. I know you may be told these marines may be useful on shipboard, which, however, has not relation to the question before the House. The question is, how many marines are necessary, and in what battles are they employed? Recollect, sir, that in this estimate of the expenses of these marines, the Prætorian camp erected for their accommodation is not taken into question--nor do I believe there is a man in the House who can guess within a hundred thousand dollars what it has cost. I cannot--I do not even know the authority under which it was built. I suppose it was erected, like some other public buildings, without law, by authority unknown to the law. Yes, sir, and this is the place for Aaron Burr and such choice spirits. When they wish to turn us out of the House, where do they look but to men who are incarcerated and would run away at a bare invitation, much more would follow a military leader to plunder, to office, to cordons and legions of honor? I cannot consent to retain them. I feel indignant--I feel mortified at the conduct of that part of the House of Representatives calling itself Republican--because I believe, sir, that the hint given by my worthy friend from North Carolina, has been taken by the gentlemen of another denomination, and they have thrown their weight so equally on both sides as to poise the balance--they have worked a sort of political equation there. Yes, sir, we must have fifty per cent. increase of the present _ad valorem_ taxes, and an additional third upon molasses and brown sugar, upon the articles on which the poorest families on the seaboard make their daily meal--and in return we shall have a man, the texture of whose coat, whether homespun or imported, you cannot tell for the gold lace with which it is covered, and an establishment of marines at an expense of more than two hundred thousand dollars--and whom to protect? To protect the constituents of my worthy colleague, in the enjoyment of their peace of mind? When you consider in what manner every claim of merit is treated in this House--when you consider the poverty and misery in which thousands and tens of thousands of the people of the United States live, from whose earnings you daily take a part, I hope you will pause and reflect before you dispose of one doit of this sum on such objects. Why, sir, should a poor man laboring out of doors not be suffered to take his breakfast or give it to his children without paying a tax to the Government, in order that the man who does not labor, and whose head is of no more use to the community than his arms, should live in idleness? But, unfortunately for myself, I have been here too long--I have seen the profits made by individuals with no other visible resources than the cheese-parings and candle-ends of the Government; and it has got to that now that every branch of our establishments has become a department--we have almost got a door-keeping department--not only in this House but elsewhere. But all I have said is wrong, very wrong--we are all Republicans, all Federalists--all is right--this is all an idle clamor, made to effect a given purpose. Sir, I might go on and compare these two books of 1800 and 1809 and take up every item of expense, military, naval, or civil--the civil branch of the Army as well as the military, the civil as well as the naval branch of the Navy--they are all, all alike. In this book (the estimate of 1800) is such a detailed statement that the value of every ration is stated, and the amount of force in detail. What have we here, in the estimate of last year? In relation to the Navy you have some three or four pages. I really had not a conception, till I came to examine it, that there could be such a difference between the estimates of 1800 and 1809. But if I am overruled, which I think highly probable from the appearance of things, we shall have the satisfaction, in case I return here next year, and Messrs. Pepin and Breschard give their attendance, of a fine band of music to entertain the audience--and for this undoubtedly the good people, the fishermen of Marblehead, and the planters of Virginia, will be proud to pay $260,000. But this is all right--it is all Republicanism! All Federalism! Mr. W. ALSTON spoke in favor of reducing them, and Messrs. LYON, MCKIM, BASSETT, and DANA, against it. The question on concurring with the committee in striking out this section was decided in the affirmative--yeas 49, nays 43. So the section for reducing the marines was stricken out. A motion having been made by Mr. RANDOLPH to amend the bill so as to disband the _master commandants_ now belonging to the Navy, Mr. MCKIM said he should like to know the gentleman's reason for getting rid of them. The gentleman had appealed to the House to know why they would retain them? The _onus probandi_, however, lays with the gentleman himself. He ought to show why they should be dismissed. Mr. McK. said he did not like to vote in the dark. His vote given without knowledge might derange the whole system. He hoped the gentleman from Virginia, (Mr. RANDOLPH,) from his extensive knowledge on the subject, would favor them with the reasons why these men should be dismissed. Mr. BOYD said he did not rise to make a long speech but to tell the House that he felt much imposed upon by the comparisons made between the late and Federal Administrations. If I were to do all this, said he, I might get into the newspapers and make believe that I am the first man in the nation; but I take things as I find them. The former Administration may have acted rightly in their day; but reason is to guide us. Sir, is it parliamentary, is it genteel, or agreeable to common sense, that a hundred and forty men should sit here listening to what one man says, and he having recourse to papers in every one's reach? I had rather consult the papers for myself: for I should not garble them, taking just what suited me, but should read the whole. No doubt gentlemen do what they think answers their own purpose and I what answers mine; and my purpose is the good of the nation. If a larger navy was necessary, I should vote for it; if an army of thirty thousand men was wanted, I should vote for it. Sir, have we no rights to defend? There never has been a time, in my opinion, since the Government was formed, that so preposterous a proposition was offered as this one to reduce the Army and Navy at this time--for what? Are the orders and decrees altered? I understand all Spain is in a state of blockade. For what have you given money to build fortifications? Pounds, shillings, and pence, are the order of the day--we sell a little tobacco, a little cotton--and our independence goes to wreck. But gentlemen even on their own principles go to work the wrong way. If they submit to get a little this year, they will get less the next, depend upon it. I think it my duty to speak in this open manner--not to please gentlemen, but for my country's good. Mr. RANDOLPH said in reply to the gentleman from Maryland, who wished to know why he wanted to get rid of the masters commandant, that it was because there never had been a reason assigned in this House for their creation. The act which established them had come from the other House at the end of a session; it had not originated in this House, and he had never heard a reason assigned in favor of them--and he had no knowledge that the public service had suffered from the want of them during the whole of Mr. Adams's Administration, and more especially not from the 4th of March, 1801, to April 1806. That gentlemen who voted against the proposition to reduce the Army and Navy, said he, should vote against my amendment is nothing more than natural; and I suppose if those averse to reduction had been put on the committee, we should have had no such bill reported. If gentlemen who voted for the general proposition that it is expedient to reduce the Army and Navy are willing to be held up as bowing the knee to foreign powers, let it be so. They were a large and certainly not disrespectable majority. I feel no sensibility on the subject. The House may act as it pleases; in whatsoever manner it may act, it will not affect my vote or conduct. I stand here, as I always have done, and always will do, on ground independent of all party considerations. If this amendment be submission to the belligerents, what is the proposition of the gentleman from Pennsylvania, (Mr. SMILIE,) which is acknowledged to go further in reduction than the bill as first reported? It is in vain to oppose a reduction of the Army and Navy on the ground of submission. Gentlemen should prove that they are resistance. What resistance do they afford against their decrees or confiscation? Have they taken a single man out of a ship of war, or one man out of the dungeons of Paris or Arras? This is as plain a question of expediency as whether you will alter the time of holding the courts of the State of Maryland or any other question. Mr. R. had however some expectations that they should have some war speeches on this occasion, and they had them accordingly. They had heard some on the general proposition for reduction, and one this morning from the gentleman from Tennessee (Mr. RHEA) on the bill. Was it proposed now to declare war? Was it believed that the gentleman from Pennsylvania (Mr. SMILIE) was disposed to submit to the belligerents? That the gentlemen on the other side of the House were divided on that subject, as they were upon the question of the reduction of the Navy? Was the gentleman from Massachusetts, (Mr. QUINCY,) who represented the town of Boston, so strenuous an advocate at this moment for war (and he supposed especially for war with England) that he was obliged to oppose a reduction on that ground? Was the gentleman from Maryland (Mr. KEY) who represented the adjacent district, in the same belligerent temper? Did he too oppose this proposition on the ground of resisting the belligerents or of making war with England? The very moment any political touchstone was brought to test the objections to the bill which the committee had offered, they dissolved at once, and the opposition to it resolved itself into the principle of old Federalism. It was nothing else. It was office! patronage! expenditure of public money! And hence it was said (and for no other cause whatever) that these strange votes were seen. The gentleman from Connecticut, perhaps the only member or one of the very few on that side of the House who had a seat on this floor during the Administration of Mr. Adams, opposed the bill because, as he had told the house, he preferred his old principles--they had triumphed over his recent disgust, though even he acknowledged that great abuses had taken place. The gentleman had declared that he would stick to his old principles; and I, said Mr. RANDOLPH, am for sticking to mine; and my two friends from North Carolina (Messrs. MACON and STANFORD) who were also members under Mr. Adams's Administration, stick to their old principles, and I will venture to say will never relinquish them. It has not effected a change in the gentleman from Connecticut, that he and his friends are out, nor a change in my friends from North Carolina--I will not say that _they_ are in the power, for of that they have not much to boast; but that _their friends_ are in power. And why should this clamor be raised on the question whether you will or will not make a formal renunciation of the old articles of political faith? Although, on reconsideration, perhaps I have no cause to be surprised, and ought to pardon gentlemen. It is a situation in which no man likes to be placed, to be brought up and compelled either to forego present gratification or make a formal renunciation, something like the Christian at Algiers, who hesitates whether he will put on the turban and share the plunder of the day, or consent to abide by those principles which he received from his parents and from heaven. No doubt there are many who would infinitely prefer to slip over or slide under this question; and I am therefore glad, sir, that the decision of the chairman has enabled me to present the chalice to their lips and compel them to swallow it to the dregs. Mr. RHEA said that the gentleman from Virginia held no obnoxious cup to him; for he should vote against the gentleman with the greatest imaginable pleasure. As to all that had been said about patronage, it had no weight with him. He had no relation in office, nor did he ever expect to have one. He had no object in view but the well-being and safety of the nation. He was unwilling to give the least evidence of a determination to relinquish any kind of opposition (though it was scarcely apparent) to the wrongful doings of other nations against the United States. He had made no war speech; if he had intended that, he should have made rather a different speech from any the House had heard from him yet. If they went on in this way he said they would hold out an inducement to all the marauders in the universe to come and plunder the trade of the United States as they pleased. He repeated that he did not make war speeches; but he thought our situation required a war speech against somebody--he would not say who. We have indeed, said he, had sufficient provocation for war; and I say now, as I have said often before, that had we taken a proper stand at a former time, the United States would have avoided all their present difficulties. But so long as we go on as we have gone, and encourage a peace in war and a war in peace, so long as the Federalists teach us to acquiesce in all the iniquitous decrees of the belligerents, so long will our difficulties continue. I shall vote to continue the Navy, and I hope that this proposition, and any other to reduce the Naval Establishment, will be negatived; for on this establishment depends the protection of our maritime border, and safety of the people upon and near it. It may be said that I and my constituents are safe, but I will act for others who are not so. Mr. DANA congratulated the House that the only point of controversy now with gentlemen who had heretofore complained so loudly of Federalism, was, that in coming up to the mark of Federalism they should not do it with so much violence as to go beyond it. He thought it would be well if our relative expenditures could be brought back to the worst year of Mr. Adams's Administration, and our measures as to foreign affairs to the first eight years of the Federal Administration, which, when it resolved, did it so sincerely and so unalterably. He congratulated the nation that it was no longer an argument against a measure that it had been adopted by those called Federalists; he rejoiced that this slang of party was scouted from the House--that it was no longer a piece of artillery successfully wielded on all sides. He hoped it would forever be dismissed, and that gentlemen, convinced of their error, would come up and place their recantation on record. If for the same sum as was expended for those objects by the Federal Administration they could obtain the same number of fighting men on land and water, he thought they would make an extremely good bargain, when compared with the state of things which now existed. Until this session he said he had been unapprised of the enormities of expenditure in the Navy Department for so little effect; that there had been so much of waste and so much done instrumental to the extension of patronage. He wished it however to be understood that he deemed it essential that those who compose the main body of the Army and Navy, those on whom the brunt of the battle falls, those who stand in the front of danger, should be well paid, well fed, and well clad, in such a manner that one need not blush to see them on parade appearing like the ragged recruits of Sir John Falstaff. When he saw the soldier placed in this unfortunate situation, and the squalid unfortunate troops pointed at as objects of pity, and when this situation was the result of a want of attention in those who had the care of them, he could scarcely give utterance to his indignation. Mr. D. said he did not feel disposed to diminish the number of fighting men afloat at the present time; though he was not influenced at all by the resolution which the House had passed not to submit. He had sometimes thought that they had passed too many resolutions to be resolute. No, sir, said he, if, when we were insulted on the water; if, when a British squadron remained in our waters in defiance of our laws, we had made use of our navy, our officers and men would have done their duty; but it was then deemed more expedient to deal in paper than in powder and shot. I feel that we have gone far enough, and too far, in the downhill course of debasement; by much too far. I would dismiss all this parade of words. I really would cease to think to terrify the French or British nation by them. Although those nations have hated each other for years, they look up to each other with reverence, because they know that victory would be glorious. I wish, too, that we should proceed in such a manner as that our actions should not wear the appearance of gasconade, and that we should march up to the works with a steady eye. I think, sir, that the population and strength of the United States and their commercial capital being augmented, it may be proper, after a lapse of ten years, to have a Peace Establishment somewhat extended beyond the former; and I am therefore against so great a reduction as is proposed. On motion, the House then adjourned--41 to 38--at six o'clock, after a sitting of eight hours. THURSDAY, April 26. _Reduction of the Navy._ The House resumed the consideration of the unfinished business. Mr. SMILIE moved the following as a substitute for the sections stricken out: "And further, that the President of the United States be, and he is hereby, authorized to keep in actual service as many of the frigates and other public armed vessels as in his judgment the nature of the service may require, and to cause the residue to be laid up in ordinary in convenient ports; _Provided_, the whole number of officers and seamen shall not exceed that fixed by the act 'in addition to the act, supplementary to the act, providing for the Naval Peace Establishment, and for other purposes,' passed the 21st day of April, 1806." Mr. S. spoke in support of his motion, and remarked that it would produce a saving in the next year's expenditure of near a million of dollars. Mr. BACON, after observing that the amendment now offered would go to reduce the number of seamen in service to two hundred and ninety-five, a number smaller than that authorized by the bill as originally reported, as it would not man more than one frigate, three armed vessels, and the twenty-two gunboats at New Orleans, moved to amend the section by including also the seamen (five hundred additional) authorized by the act of the 3d day of March, 1807. Mr. RHEA said that this proposition amounted to just the same as the original bill, as respected the number of men to be employed. He asked whether it was proper to ask this House to do (in other words to be sure) that which they had the day before refused to do. This was no time for those who voted to increase the Navy to vote to reduce it. What reason had been given for such a course? Gentlemen had said that they believed if nobody attacked us, we should attack nobody, and that, therefore, we should have no war. Gentlemen might have some internal evidence, incomprehensible to him, that we should continue in a state of peace, or might have some reasons evident to themselves; but unless these reasons were communicable, Mr. R. said he could not consent to the amendment. They had been told that there was no such thing as a disposition in this House to go to war. How had this indisposition for war got into the House? Mr. R. could not account for this dread of war. He said he had not the least disposition to give evidence of submission to foreign powers by putting down the small naval force we have; for doing so would evince our apathy and indisposition to protect our rights. If we go on in this manner, said he, we shall be the prey of every picaroon on the ocean. We shall become a prey to our black neighbors of St. Domingo. For what reason are we to subject even our coasters to plunder and abuse? To save money! Why, sir, if we do it we shall be plundered to an amount sufficient to fit out a little navy. At least let us defend ourselves against these black people of St. Domingo. We shall have nothing to prevent the barbarian cruisers from coming on our coast, and there is hostility enough in Europe against us to set those people, as well as the cruisers from St. Domingo, against us. The reduction will not comport with the safety of the nation. The House has already declared by its vote that it will not sell any of the frigates. Will it contradict itself by taking away the seamen? Now that our naval force consists of picked men and the very best officers, I am unwilling to disband them and pick up men just as they are wanted. I am utterly against any reduction now, when we have no evidence of better times; for we have no official information before us to that effect. Mr. BASSETT said he was about to have proposed an amendment, but was prevented from so doing by Mr. BACON'S. He wished to retain the first part of Mr. SMILIE'S amendment, and to add to it a proviso that the number of seamen should not exceed two thousand seven hundred and twenty-three, (the number now in service.) The effect of the amendment thus amended would be to give to the President an authority which he has not now, to cause the frigates to be laid up at any time he thought proper. Mr. TALLMADGE spoke of the obscurity in which the amendment was involved by a reference to so many different laws. He could not vote for it, he said, unless he could understand it. On the suggestion of Mr. BACON, Mr. SMILIE modified his motion by making the proviso to read as follows: "_Provided_, That the number of seamen and boys to be retained in service shall not exceed ----." This blank Mr. BACON proposed to fill with one thousand five hundred. Mr. RANDOLPH said he was afraid, after the pledge that this House had given to reduce the Naval Establishment, that that pledge was not to be redeemed; that the whole business was to end in smoke, unless some pitiful, paltry retrenchment, to the amount of a hundred thousand dollars, was made to enable them to swear by--to say here and out of doors, and to enable the public prints to say, that they had reduced the Naval Establishment. It is a matter of fact, said Mr. R., that when the Administration of Mr. Adams went out of power, they made the only reform which has ever taken place in the Naval Establishment of the United States, and that at the succeeding session no reform was made. The act of the 3d of March, 1801, authorized the President, when the situation of public affairs in his judgment should render it expedient, to cause to be sold all the vessels of the Navy except the frigates of the United States, Constitution, President, Chesapeake, Philadelphia, Constellation, Congress, New York, Boston, Essex, Adams, John Adams, and General Greene; and of that number the President was further authorized to lay up all except six. To the vessels laid up were attached one sailing master, one boatswain, one gunner, one carpenter, and one cook, one sergeant or corporal, and eight marines, and from ten to twelve seamen, according to the size of the frigate. This was the act which we found already passed when we came into power--I do not wish to be arrogant, but say _we_ to save circumlocution. By the same act were retained in service--mark that, sir--nine captains, thirty-six lieutenants, and one hundred and fifty midshipmen, to receive only half pay when not in actual service; and the officers dismissed under that act (and a very considerable number they were) received four months' pay in addition to their other emoluments as a gratuity on quitting the public service. This is the act on which we proceeded; and under that act you will find that the expenses of the Navy amounted, in 1802, to $915,000. Well, sir, it seems we were then of opinion that even our predecessors had in one branch of reform gone far enough. It was not my opinion; but it was the opinion of a majority of this House and of the other. In 1803 the President was authorized to buy or build four vessels, to carry not exceeding sixteen guns each, for the protection of our commerce in the Mediterranean, and towards this object $96,000 were appropriated. It was not until 1803 that any increase took place in the naval establishment left us (if the expression may be pardoned) by the Federalists. We had slept long enough, I suppose, on reform, and we made this little addition. But, sir, in the unfortunate year of 1806, the memorable year of the schism, as it is called, the year of non-importation-act memory, in that year when we had a war message against Spain on the table, and a message of a different character locked up in the drawer--in that year we passed an act which has been quoted, by which we repealed the second and fourth sections of the act to provide for the Naval Peace Establishment; that is to say, we undid the reform which had been carried into execution by our predecessors--with a very ill grace, I acknowledge, and at the very last time of asking, on the 3d of March, 1801, late at night--it was a forced put, no doubt of it--we passed an act in which we repealed the second and fourth sections of that act, and added to the officers of the Navy as follows: instead of nine captains, to which number the Federal Administration had reduced them, and which number we believed for four years to be amply sufficient, we added five new captains--and yet we ought to recollect that in the interim between these two acts the frigate Philadelphia had been wholly lost, and another frigate (the General Greene) retained in the service by the act of the 3d of March, 1801, worse than totally lost, as any one may see who will go and look at her remains in the navy yard--so that the number of officers made by Congress in 1806 was in the inverse ratio to the number of ships, and, with two frigates less, we determined to have five captains more. This same act of April 21st, 1806, only doubled the number of lieutenants. The act of the 3d of March, 1801, reduced the number to thirty-six; the act of 1806 repealed that reduction and authorized the appointment of seventy-two lieutenants--it is true, sir, that the same act made no addition to the number of midshipmen, nor to the number of ordinary seamen then in service. Then again the act of the 3d of March, 1807, added to that number five hundred seamen, making the whole number of seamen 1,425. Subsequently they have been increased by the act of January 31, 1809, as the House knows, to 2,700--and an increase is authorized to the number of 5,000, with 300 additional midshipmen. I do hope that the gentleman from Pennsylvania, and the gentleman from Massachusetts, will be prepared to give this House some reason, when we have not added a single frigate to the number retained by the act of 1801, when we have even lost two of those retained by that act, when several others are almost in the last stage of decay, why we should require five captains more than the Federal Administration required for a greater number of vessels, and why we should double the number of lieutenants? In other words, why the number of officers should now be fixed agreeably to the act of April 21, 1806, rather than that of the 3d of March, 1801? Sir, the gentleman from Massachusetts has already demonstrated to the House, and I am thankful to him for it--I know with what authority any statement comes from that gentleman--that the real protection afforded to the constituents of my worthy colleague by the bill, as reported by the select committee, is greater than that afforded by the amendment of the gentleman from Pennsylvania--that is to say, that it would keep a greater number of seamen employed, with fewer officers to be sure, because we retain only as many as we want. The efficient protection afforded by the bill as it originally stood is greater at a less expense--because that branch of the naval service of which I have been compelled to present so hideous a picture to this House is left by the amendment untouched. My worthy colleague (Mr. BASSETT) stated yesterday--and I confess it was quite novel to me; I felt so astonished at it as not only to be unable but absolutely to forget to reply to it--that before he left the Department, the ex-Secretary of the Navy had commenced a system of economy, which system it seems is now prosecuting with renovated vigor by the present Secretary--the mantle of Elijah has descended on the shoulders of his successor. I am sorry, sir, to differ with my worthy colleague on so many points; but I am really not sorry that circumstances have put it in my power to prove, from the most incontestable authority, that where I have the misfortune to differ from him, I am most indubitably supported by facts. Now, sir, the first year's expenditure under the late Secretary of the Navy was $915,000. Even in that year the appropriation was exceeded, and we had to pass an appropriation bill to make up the deficit; and from that time to his going out of office, the expenditure of that department has regularly increased. The second year, the expenditure was $1,246,000; the next year, $1,273,000; the next year (and this was the year the Philadelphia was taken--she was taken about December, 1803, and that year, I believe, was about the most vigorous of the war) the expenditure was $1,597,000; the next year, $1,649,000; the next year, $1,722,000; the next year, $1,884,000; the next, two millions and a half within a trifle. Now, sir, this is a specimen of such economy as does not suit my taste, nor, I believe, the taste of the people of this country. I believe it is in proof and in the recollection of every member of experience on this floor, that that Department has long ago passed into a proverb of prodigality and waste; and if my honorable colleague will give himself an opportunity to probe it, he will find such was the fact. With respect to the present Secretary of the Navy, I have the best reason to believe that, on his coming into office, he did take various steps to introduce reform into the civil branch of the department--in regulating and checking the pursers, for instance. Sir, a few days ago a bill was before this House for appropriating a small sum of $20,000 to prevent the most precious archives not only that this country but that any other country possesses, the evidence of the titles of our political independence, the title-deeds of the great American family, the great charters of our liberty, from destruction. The gentleman from Pennsylvania (Mr. SMILIE) did on that occasion vehemently oppose this bill, and on this ground--(the bill was brought in by a gentleman from Massachusetts--Mr. QUINCY) that though there was no impropriety perhaps in gentlemen on that side of the House voting for unnecessary expenditures of the public money, which in the present unexampled state of the Treasury, might tend to embarrass the Government--a strange doctrine to be sure--yet it did not become him to do it. I do hope that the worthy gentleman from Pennsylvania, who could not find it in his heart to loosen the purse-strings of the nation for the purpose of preserving the valuable archives of the country, and which, if another fire should break out in the building at the other end of the palace, between this time and the next session of Congress, might be irredeemably destroyed, for which those who were the cause of the destruction would have been answerable--if he would not vote money for this object, I hope he will not insist upon exceeding, in point of expense, as relates to the Navy, the reform which our predecessors, the Federalists, made before they went out of office, which we accepted at their hands and were contented to practise on for four years, and not compel us to go into unnecessary and wanton expenses authorized by the act of April, 1806--when, I have no hesitation in making the assertion, and am prepared to prove it, a material change was effected in the principles of those in Administration, such as I knew them, and such as they were practised upon for about the term of four years, when we began to find that patronage was a very comfortable thing, that office was desirable, that navies were not the bugbear we had thought them, and that armies were very good depositaries for our friends and relatives and dependents who had no better resource. I, therefore, move to amend the amendment of the gentleman from Pennsylvania so as to reduce the Navy to the standard of the act of 1801. This is indeed, said he, a novel situation in which I find myself--it is unprecedented. Little did I believe that the time would ever come when it would be my lot thus to press economy upon a Republican majority--to intreat that they would come down, not to any ideal imaginary standard of perfection--not to any theoretical proposition of mine--but that in practice they would come down, on the subject of naval expenditure, to the standard established by their Federal predecessors: and that too when we have lost, as I stated before, the Philadelphia and General Greene, and when, I believe, the John Adams is in a condition that I will not attempt to describe--I understand this vessel is so cut down and metamorphosed that nobody knows what to make of her; that she retains nothing of her former character. When I make this motion, sir, I do it with an intention of moving other amendments to other sections of the bill, so as to make the service of the United States in relation to the navy-yards and marine corps comport with the reduction which will have taken place, provided I have the good fortune to succeed. Mr. R. then moved to amend Mr. SMILIE'S proposition by adding the following: "And that the President shall retain in the Navy service of the United States nine captains, thirty-six lieutenants, and one hundred and fifty midshipmen, including those employed on board of the frigates and other armed vessels to be kept in service; and that he be authorized to discharge all the other officers in the Navy service of the United States; but such of the aforesaid officers as shall be retained shall be entitled to receive no more than half their monthly pay during the time when they shall not be under orders for actual service. _And provided further_, That all the commissioners and warrant officers who shall be discharged as aforesaid shall be entitled to receive ---- months' pay over and above what may be due to them respectively at the time they were discharged." Mr. JOHNSON expressed his hope that the House would come to some decision, without consuming more of the time of the House in debate. Mr. SMILIE said he was seriously in favor of a reduction in the Navy, and was therefore opposed to Mr. RANDOLPH'S amendment to his amendment. After some further remarks of Messrs. RANDOLPH and DANA in favor of a reduction, and Messrs. MCKIM, BOYD, and RHEA of Tennessee against it, the question was taken on Mr. RANDOLPH'S motion to amend Mr. SMILIE'S amendment, and negatived--yeas 36, nays 67. Mr. NEWTON then said he was anxious to do his duty; but could not consent to stay here when one-third of the House at least had deserted their seats and fatigue oppressed the remainder. He therefore moved to adjourn.--Carried--yeas 60, after seven hours' sitting. FRIDAY, April 27. _Mortality of the Troops at Terre aux Boeuf._ Mr. NEWTON, from the committee appointed to inquire into the causes of the mortality which prevailed in the detachment of the army ordered for the defence of New Orleans, made a long report, accompanied with various depositions and other papers. The report concludes as follows: "The committee, from a knowledge which they have acquired of the climate of New Orleans and of the country surrounding it, and from the facts stated in the depositions, are of opinion that the mortality in the detachment ordered to New Orleans is to be ascribed to the following causes: "1st. The detachment consisting of new levies. "2dly. The insalubrity of the climate, the summer and autumn of the year 1809 being unusually sickly. "3dly. To the nature of the ground on which the detachment was encamped at Terre aux Boeuf, and the detention of it at that place during the whole of the summer, contrary as the committee conceive to the instructions contained in the letter of the Secretary of War bearing date the 30th of April, 1809. "4thly. To the want of sound and wholesome provisions and of vegetables--the want of an hospital and of hospital stores and medicines. "5thly. The excessive fatigues to which the troops were subjected in clearing, ditching, and draining the ground on which they were encamped. "6thly. To the want of repose during the night, owing to the troops not being provided with bars and nets to protect them from the annoyance of mosquitoes. "7thly. The want of cleanliness in the camp, the nature of the position rendering it almost impracticable to preserve it. "8thly. The sick and well being confined to the same tents, which neither protected them sufficiently from the heat of the sun, nor kept them dry from dews and rains." The report and documents were ordered to be printed. SATURDAY, April 28. _Reduction of the Navy._ The House resumed the consideration of the bill for reducing the Naval Establishment of the United States. Mr. SMILIE'S amendment was modified so as to fix the number of officers, &c., to be retained in service, as follows: thirteen captains, nine masters commandant, seventy-two lieutenants, ---- midshipmen and ---- seamen, ordinary seamen and boys. Mr. MUMFORD again moved to postpone the further consideration of the subject indefinitely--lost, yeas 40, nays 54. Mr. RANDOLPH moved to strike out the numbers thirteen, nine, and seventy-two, in the amendment, being desirous of reducing the officers, if any part of the establishment. Motion lost, ayes 40, noes 46. Mr. N. R. MOORE called for a division of the question on Mr. SMILIE'S amendment. And the question was taken on that part of it which authorizes the President to keep in service so many of the armed vessels as he may think proper, and to lay up the rest in ordinary in convenient ports. This part of the amendment was agreed to--yeas 61, nays 38. The second clause of Mr. SMILIE'S amendment being under consideration-- Mr. SMILIE moved to fill the blank for the number of midshipmen with "one hundred and fifty" (about half the number at present in service)--Agreed to, ayes 51, noes 37. The question was stated on filling the blank for the number of seamen to be retained with "two thousand seven hundred and twenty-three," as moved by Mr. BASSETT, and rejected, yeas 46, nays 52; also the question was taken on filling with 2,000, and rejected, yeas 39, nays 56; also on filling with 1,400, which was carried; and the House then adjourned. TUESDAY, May 1. _General Wilkinson._ Mr. BUTLER, from the committee appointed to inquire into the conduct of Brigadier General, James Wilkinson, rose to make a report. The question on reading the report was taken and carried, 58 to 32. The report is as follows: The committee to whom was referred the resolution of the 4th instant, directing an inquiry into the conduct of Brigadier General James Wilkinson, in relation to his having at any time, while in the service of the United States, corruptly received money from the Government of Spain, or its agents, or in relation to his having, during this time aforesaid, been an accomplice, or in any way concerned with the agents of any foreign power, or with Aaron Burr, in a project against the dominions of the King of Spain, or to dismember these United States, and to inquire generally into the conduct of the said James Wilkinson, as Brigadier General of the Army of the United States, report, that they have had under consideration the several subjects of inquiry, and have investigated them to the utmost of their power since the time of their appointment, but from the limited period in which they have acted, and from the extensive and complicated nature of the subjects, they are under the necessity of stating that they have not been able to make any thorough and conclusive investigation of the objects of their inquiry. Such testimony, however, as they have been able to procure, they beg leave to submit as part of this report, and which may be referred to under the following heads and order: In relation to the first objects of inquiry, to wit: the receipt of money by General Wilkinson from the Spanish Government or its agents, refer to the [Here follows a list of papers, 19 in number.] In relation to the second object of inquiry, to wit: the connection of General Wilkinson with the agents of Spain in a project to dismember the United States, refer to the [Here follows a list of 11 papers.] In relation to the third object of inquiry, to wit: General Wilkinson's connection with Aaron Burr, refer to [Here follows a list of 14 papers.] In relation to the fourth point of inquiry, to wit: the conduct of General Wilkinson, as Brigadier General of the army of the United States, refer to the [Here follows a list of 6 papers.] The committee think proper, also, to submit the following papers relating to tobacco and other commercial transactions in which General Wilkinson was concerned, from the month of ---- in the year 1788, to the month of ---- in the year 1790, to wit: [Here follows a list of 10 papers.] In making the last preceding statement the committee beg leave to remark, that from an examination of the sentence of the military court of inquiry, ordered at the request of General Wilkinson, and of which Colonel Burbeck was President, it appears that the tobacco transactions of General Wilkinson at New Orleans in 1789 and 1790 constituted a material part of that inquiry, and that a copy of an account current was laid before the said court by General Wilkinson and designated by No. ----, and several letters accompanying said account, supposed by the court to be in the handwriting of Philip Noland, the agent of General Wilkinson. The committee conceiving that the papers collected by the said court would aid them in their investigation, made application for those papers to the Secretary of War, but were unable to obtain them, they having been taken from the office by General Wilkinson, as appears from the deposition of John Smith, chief clerk in the War Office. The committee then directed a subpoena to General Wilkinson, requiring him to send or produce all the papers which had been used or collected by the said court, in obedience to which General Wilkinson sent to the committee a packet of papers which did not contain either the account and letters referred to in the sentence of the court, or the defence of General Wilkinson, nor have the committee been able to procure them, and, consequently, have not had it in their power to compare the accounts herewith exhibited with those which were laid before the military court of inquiry. For the further elucidation, refer to Walter Jones's deposition, marked W. J. The committee also submit the deposition of Daniel W. Coxe, authenticating the papers to which he specially refers, marked D. W. C. Mr. GHOLSON observed that the reading of the documents accompanying the report would take until midnight, at least, and he hoped there would be no objection to dispense with the reading of them. No one objecting, the reading of the documents was dispensed with, and the whole was ordered to be printed. _Adjournment._ A message from the Senate informed the House that the Senate have appointed a committee on their part, jointly with such committee as may be appointed on the part of this House, to wait on the President of the United States, and inform him of the proposed recess of Congress. The House proceeded to consider the resolution from the Senate to appoint a joint committee to wait on the President, and acquaint him of the proposed recess of Congress; and the same was concurred in by the House; and Messrs. CRAWFORD and ROANE were appointed the committee on the part of the House. A message from the Senate informed the House that the Senate, having completed the legislative business before them, are ready to adjourn. Mr. CRAWFORD, from the joint committee to wait on the President of the United States, and inform him of the proposed recess of Congress, reported that the committee had performed that service, and that the President informed them that he had no further communication to make to Congress during the present session. _Ordered_, That a message be sent to the Senate to inform them that this House are now ready to adjourn; and that the clerk do go with the said message. The clerk accordingly went with the said message; and, being returned, the SPEAKER adjourned the House until the first Monday in December next. FOOTNOTES: [9] Col. Isaac A. Coles, private secretary to Mr. Jefferson. [10] By concurrence in the report of a committee, of which Mr. Madison was chairman, on the subject of a letter from Mr. Gunn to Mr. Baldwin, both members of Congress; as well as on the case of Mr. Frelinghuysen. ELEVENTH CONGRESS.--THIRD SESSION. BEGUN AT THE CITY OF WASHINGTON, DECEMBER 3, 1810. PROCEEDINGS IN THE SENATE. MONDAY, December 3, 1810. The third session of the eleventh Congress, conformably to the Constitution of Government of the United States, commenced this day; and the Senate assembled at the city of Washington. PRESENT: NICHOLAS GILMAN and CHARLES CUTTS, from New Hampshire. CHAUNCEY GOODRICH and SAMUEL W. DANA, from Connecticut. JONATHAN ROBINSON, from Vermont. OBADIAH GERMAN, from New York. MICHAEL LEIB, from Pennsylvania. OUTERBRIDGE HORSEY, from Delaware. SAMUEL SMITH, from Maryland. WILLIAM B. GILES, from Virginia. JOHN GAILLARD, from South Carolina. WILLIAM H. CRAWFORD and CHARLES TAIT, from Georgia. JOHN POPE, from Kentucky. ALEXANDER CAMPBELL, from Ohio. JOHN GAILLARD, President _pro tempore_, resumed the chair. The number of Senators present not being sufficient to constitute a quorum, the Senate adjourned. TUESDAY, December 4. JOHN LAMBERT, from the State of New Jersey, ELISHA MATHEWSON, from the State of Rhode Island, and PHILIP REED, from the State of Maryland, severally attended. The credentials of CHARLES CUTTS, appointed a Senator by the Legislature of the State of New Hampshire, in place of Nahum Parker, Esq., resigned; also, of SAMUEL W. DANA, appointed a Senator by the Legislature of the State of Connecticut, in place of James Hillhouse, Esq., resigned, were severally read; and the oath required by law was, by the PRESIDENT, administered to them, respectively. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business. _Ordered_, That Messrs SMITH, of Maryland, and GILMAN, be a committee on the part of the Senate, together with such committee as may be appointed by the House of Representatives on their part, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled and ready to receive any communications that he may be pleased to make to them. A message from the House of Representatives informed the Senate that a quorum of the House of Representatives is assembled and ready to proceed to business. The House of Representatives have appointed a committee on their part, jointly with such committee as may be appointed on the part of the Senate, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled and ready to receive any communications that he may be pleased to make to them. On motion, by Mr. SMITH, of Maryland, _Resolved_, That James Mathers, sergeant-at-arms and doorkeeper to the Senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after. Mr. SMITH, of Maryland, reported from the joint committee that they had waited on the President of the United States, and that the President informed the committee that he would make a communication to the two Houses to-morrow at 12 o'clock. WEDNESDAY, December 5. TIMOTHY PICKERING, from the State of Massachusetts, and STEPHEN R. BRADLEY, from the State of Vermont, severally attended. _President's Annual Message._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Fellow-citizens of the Senate and House of Representatives_: The embarrassments which have prevailed in our foreign relations, and so much employed the deliberations of Congress, make it a primary duty in meeting you to communicate whatever may have occurred in that branch of our national affairs. The act of the last session of Congress concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, having invited, in a new form, a termination of their edicts against our neutral commerce; copies of the act were immediately forwarded to our Ministers at London and Paris, with a view that its object might be within the early attention of the French and British Governments. By the communication received through our Minister at Paris, it appeared that a knowledge of the act by the French Government was followed by a declaration that the Berlin and Milan decrees were revoked, and would cease to have effect on the first day of November ensuing. These being the only known edicts of France within the description of the act, and the revocation of them being such that they ceased at that date to violate our neutral commerce, the fact, as prescribed by law, was announced by a proclamation, bearing date the second day of November. It would have well accorded with the conciliatory views indicated by this proceeding on the part of France, to have extended them to all the grounds of just complaint which now remain unadjusted with the United States. It was particularly anticipated that, as a further evidence of just dispositions towards them, restoration would have been immediately made of the property of our citizens, seized under a misapplication of the principle of reprisals, combined with a misconstruction of the law of the United States. This expectation has not been fulfilled. From the British Government, no communication on the subject of the act has been received. To a communication, from our minister at London, of a revocation, by the French Government, of its Berlin and Milan decrees, it was answered, that the British system would be relinquished as soon as the repeal of the French decrees should have actually taken effect, and the commerce of neutral nations have been restored to the condition in which it stood previously to the promulgation of those decrees. This pledge, although it does not necessarily import, does not exclude, the intention of relinquishing, along with the Orders in Council, the practice of those novel blockades, which have a like effect of interrupting our neutral commerce: and this further justice to the United States is the rather to be looked for, inasmuch as the blockades in question, being not more contrary to the established law of nations than inconsistent with the rules of blockade formerly recognized by Great Britain herself, could have no alleged basis other than the plea of retaliation, alleged as the basis of the Orders in Council. Under the modification of the original orders of November, 1807, into the orders of April, 1809, there is, indeed, scarcely a nominal distinction between the orders and the blockades. One of those illegitimate blockades, bearing date in May, 1806, having been expressly avowed to be still unrescinded, and to be, in effect, comprehended in the Orders in Council, was too distinctly brought within the purview of the act of Congress not to be comprehended in the explanation of the requisites to a compliance with it. The British Government was accordingly apprised by our Minister near it, that such was the light in which the subject was to be regarded. On the other important subjects depending between the United States and that Government, no progress has been made from which an early and satisfactory result can be relied on. In this new posture of our relations with those powers, the consideration of Congress will be properly turned to a removal of doubts which may occur in the exposition, and of difficulties in the execution, of the act above cited. The commerce of the United States with the north of Europe, heretofore much vexed by licentious cruisers, particularly under the Danish flag, has latterly been visited with fresh and extensive depredations. The measures pursued in behalf of our injured citizens, not having obtained justice for them, a further and more formal interposition with the Danish Government is contemplated. The principles which have been maintained by that Government in relation to neutral commerce, and the friendly professions of His Danish Majesty towards the United States, are valuable pledges in favor of a successful issue. Among the events growing out of the state of the Spanish monarchy, our attention was imperiously attracted to the change developing itself in that portion of West Florida which, though of right appertaining to the United States, had remained in the possession of Spain, awaiting the result of negotiations for its actual delivery to them. The Spanish authority was subverted, and a situation produced exposing the country to ulterior events which might essentially affect the rights and welfare of the Union. In such a conjuncture I did not delay the interposition required for the occupancy of the territory west of the river Perdido, to which the title of the United States extends, and to which the laws provided for the Territory of Orleans are applicable. With this view, the proclamation, of which a copy is laid before you, was confided to the Governor of that Territory, to be carried into effect. The legality and necessity of the course pursued, assure me of the favorable light in which it will present itself to the Legislature, and of the promptitude with which they will supply whatever provisions may be due to the essential rights and equitable interests of the people thus brought into the bosom of the American family. Our amity with the Powers of Barbary, with the exception of a recent occurrence at Tunis, of which an explanation is just received, appears to have been uninterrupted, and to have become more firmly established. Whilst it is universally admitted that a well-instructed people alone can be permanently a free people, and while it is evident that the means of diffusing and improving useful knowledge form so small a proportion of the expenditures for national purposes, I cannot presume it to be unseasonable to invite your attention to the advantages of superadding to the means of education, provided by the several States, a seminary of learning, instituted by the National Legislature, within the limits of their exclusive jurisdiction, the expense of which might be defrayed or reimbursed out of the vacant grounds which have accrued to the nation within those limits. Such an institution, though local in its legal character, would be universal in its beneficial effects. By enlightening the opinions, by expanding the patriotism, and by assimilating the principles, the sentiments, and the manners, of those who might resort to this temple of science, to be redistributed, in due time, through every part of the community, sources of jealousy and prejudice would be diminished, the features of national character would be multiplied, and greater extent given to social harmony. But, above all, a well-constituted seminary, in the centre of the nation, is recommended by the consideration that the additional instruction emanating from it would contribute not less to strengthen the foundations than to adorn the structure of our free and happy system of Government. Among the commercial abuses still committed under the American flag, and leaving in force my former reference to that subject, it appears that American citizens are instrumental in carrying on a traffic in enslaved Africans, equally in violation of the laws of humanity, and in defiance of those of their own country. The same just and benevolent motives which produced the interdiction in force against this criminal conduct, will doubtless be felt by Congress in devising further means of suppressing the evil. In the midst of uncertainties necessarily connected with the great interests of the United States, prudence requires a continuance of our defensive and precautionary arrangement. The Secretary of War and Secretary of the Navy will submit the statements and estimates which may aid Congress in their ensuing provisions for the land and naval forces. The statements of the latter will include a view of the transfers of appropriations in the naval expenditures, and the grounds on which they were made. The corps of engineers, with the Military Academy, are entitled to the early attention of Congress. The buildings at the seat fixed by law for the present academy are so far in decay, as not to afford the necessary accommodation. But a revision of the law is recommended principally with a view to a more enlarged cultivation and diffusion of the advantages of such institutions, by providing professorships for all the necessary branches of military instruction, and by the establishment of an additional academy at the Seat of Government or elsewhere. The means by which war, as well for defence as for offence, is now carried on, render these schools of the more scientific operations an indispensable part of every adequate system. Even among nations whose large standing armies and frequent wars afford every other opportunity of instruction, these establishments are found to be indispensable for the due attainment of the branches of military science which require a regular course of study and experiment. In a Government happily without the other opportunities, seminaries, where the elementary principles of the art of war can be taught without actual war, and without the expense of extensive and standing armies, have the precious advantage of uniting an essential preparation against external danger, with a scrupulous regard to internal safety. In no other way, probably, can a provision of equal efficacy for the public defence be made at so little expense, or more consistently with the public liberty. Reserving for future occasions, in the course of the session, whatever other communications may claim your attention, I close the present, by expressing my reliance, under the blessing of Divine Providence, on the judgment and patriotism which will guide your measures, at a period particularly calling for united councils, and inflexible exertions, for the welfare of our country, and by assuring you of the fidelity and alacrity with which my co-operation will be afforded. JAMES MADISON. WASHINGTON, _December 5, 1810_. FRIDAY, December 7. JOSEPH ANDERSON, from the State of Tennessee, attended. TUESDAY, December 11. RICHARD BRENT, from the State of Virginia, attended. WEDNESDAY, December 12. The VICE PRESIDENT of the United States resumed the chair. JESSE FRANKLIN, from the State of North Carolina, also took his seat in the Senate. THURSDAY, December 13. HENRY CLAY, from the State of Kentucky, took his seat in the Senate. MONDAY, December 17. JAMES LLOYD, from the State of Massachusetts, took his seat in the Senate. TUESDAY, December 18. JOHN CONDIT, from the State of New Jersey, and JOHN SMITH, from the State of New York, severally took their seats in the Senate. _Bank of the United States._ Mr. LEIB presented the petition of the President and Directors of the Bank of the United States, praying a renewal of their charter, for reasons therein stated; and the petition was read, and referred to a select committee, to consist of five members, to consider and report thereon; and that the petition be printed for the use of the Senate. Messrs. CRAWFORD, LEIB, LLOYD, POPE, and ANDERSON, were appointed the committee. _Territory of Orleans._ Mr. GILES, from the committee to whom was referred, on the 8th instant, so much of the Message of the President of the United States as relates to the occupation of that part of West Florida which is included within the boundaries described by the treaty for the acquisition of Louisiana, reported a bill declaring the laws now in force in the Territory of Orleans, to extend to and to have full force and effect to the river Perdido, pursuant to the treaty concluded at Paris on the 30th day of April, 1803, and for other purposes; and the bill was read, and passed to the second reading. WEDNESDAY, December 19. CHRISTOPHER GRANT CHAMPLIN, from the State of Rhode Island, took his seat in the Senate. THURSDAY, December 27. JENKIN WHITESIDE, from the State of Tennessee, took his seat in the Senate. _Occupation of West Florida._ The Senate resumed the consideration of the bill declaring the laws now in force in the Territory of Orleans, to extend to, and to have full force and effect, to the river Perdido, pursuant to the treaty concluded at Paris on the 30th of April, 1803; and for other purposes. The question was on the bill's passage to a third reading. Mr. POPE.--Mr. President, I regret that the honorable chairman of the committee who reported this bill is not here to give it that support which his talents, information, and the importance of the subject authorize us to expect. His absence has devolved on me, as a member of the committee, and a representative of that section of the Union more immediately interested in the subject before us, to explain to the Senate some of the grounds which induced them to make this report. The first important question which the proclamation of the President and this bill presents for consideration is, whether or not the United States have a good title to the territory in question. Before I examine the treaty of cession from France to the United States, of 1803, the source of our claim, permit me to inquire what were the limits of Louisiana in that quarter to which this subject leads us before the treaty and cession of 1762-'3, between France, Spain, and Great Britain? On this subject, however, I believe there is no contrariety of opinion. Before this period, Louisiana extended east of the river Mississippi to the river Perdido. France and Spain, by the Treaty of 1719, established this boundary between Florida, now called East Florida, and Louisiana. The ancient limits of Louisiana have been so fully ascertained by the documents laid before Congress at different times, and the numerous discussions the subject has undergone, that I should only waste the time of the Senate in attempting to throw any new light on it. I shall only refer the Senate to one additional evidence that this river was the ancient eastern boundary of this province. Mr. Smollet, in his continuation of "Hume's History of England," states the answer of the British Government to the propositions made by France for peace early in the year 1761, from which it appears that France then claimed the river Perdido as their eastern limit, nor does this fact appear to have been contested by the British Minister. It appears that previous to the war which terminated in 1763, Louisiana comprehended nearly the whole country watered by the Mississippi and its branches. I find it stated in a pamphlet published in New York, that France, by a secret cession, contemporaneous with the treaty called the Family Compact of 1761, transferred this country to Spain, to induce her to become her ally in the war against Great Britain; and although I can find no evidence to support this statement, yet the events of that war, previous to that period, renders it at least probable. It will be remembered that the arms of Great Britain had triumphed over those of France, both by sea and land. France had lost Canada, and a great number of ships of war. Spain was not then a party in the war, and, to induce her to become so, it seems probable that France, under the pressure of adverse fortune, ceded to her this province. But, as this statement does not correspond with the documents on our tables, nor the views of others who have examined this subject, we are compelled to take it for granted, that the cession of West Louisiana, with the island of New Orleans, to Spain, and of East Louisiana, since called West Florida, to Great Britain, were made at the same time, in the year 1762. It is, however, well known that France made the cession to Great Britain at the instance, and for the benefit of Spain, to enable her, with the cession of Florida, now called East Florida, to obtain a restitution of Cuba. The whole of Louisiana, not conquered by Great Britain, may, with propriety, be said to have been given up, or ceded to Spain. Let us now examine that part of the treaty of cession between the United States and France of 1803, which relates to this question. By that treaty we acquired Louisiana as fully, and in the same manner, as it had been acquired by France from Spain, in virtue of the Treaty of St. Ildefonso of the 1st of October, 1800. By this treaty, Spain retroceded Louisiana to France, "with the same extent it then had in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and other States." That this extract from that treaty is correct, cannot be doubted, as it has never been denied by Spain. The word "retrocede" in this treaty has, I believe, occasioned more doubt with regard to the meaning of this cession that any expression contained in it, but cannot, when the subject is properly examined, have the effect contended for. It is said that as France ceded to Spain, in 1762, Louisiana west of the Mississippi, including the island of New Orleans, the word "retrocede" must limit the cession to what had been previously ceded by France to Spain; but if it be true that Louisiana east and west of the Mississippi was ceded to Spain in the year 1761, although East Louisiana was afterwards ceded by France, with the consent of Spain, to Great Britain, the word "retrocede" might, with propriety, be used with reference to the original grant to Spain in 1661, or if, what will not be denied, the cession of East Louisiana to Great Britain by France, was at the instance, and for the benefit of Spain, Spain, in 1800, after she had acquired East Louisiana, alias West Florida, so called by Great Britain after 1763, could well say to France, I re-grant to you what you ceded to me, and on my account, or at least, so much as I can re-grant consistently with the treaties I have since made; and this seems to be the plain and evident meaning of the instrument. If the parties had meant to confine the retrocession to the limits of the cession, made by France to Spain, of Louisiana west of the Mississippi, including the island of New Orleans, they would have used the same deception. They would certainly have stopped after saying the extent it then had in the hands of Spain. But to prevent mistake or misconstruction, they add, "that it had when France possessed it," and, what is still more conclusive of the meaning of the parties, they go on to say, "and such as it should be after the treaties subsequently entered into between Spain and other States." As Spain had never entered into any treaty with regard to the western boundary of Louisiana, and as the only treaties to which the parties could have alluded was that of 1783 with Great Britain, and of 1795 with the United States, both relative to limits on the east side of the Mississippi, it is perfectly clear that the contracting parties meant to comprehend whatever of Louisiana, on the east side of the Mississippi, Spain had a title to. If the construction I contend for is not admitted, then the latter parts of the description will have no effect, contrary to a settled principle of law and common sense, that every part of an instrument shall have effect, if it can by any reasonable construction. To strengthen the construction for which I insist, it may not be amiss to consider the views of the French Government at the time this treaty of St. Ildefonso was made. They no doubt acquired this province with an intention of holding it, and it was an object of national pride to regain as much as practicable of the colonies which had been lost under the old Government. Besides, they could not be ignorant of the importance of East Louisiana, now West Florida, to the security of New Orleans; and, as the practicability of obtaining it at that time from Spain cannot be doubted, the presumption is irresistible that the cession was intended to embrace it. I had intended to have ascertained at the Department of State the ground of objection with Spain to the surrender of that country to the United States, but have not made the inquiry. I do not, however, think it difficult to account for the conduct of Spain. My conjecture is, that France, after she had sold Louisiana to the United States, and received the price stipulated, secretly advised Spain not to surrender it, having at that time formed the project which she is now attempting to execute, of acquiring the whole Spanish Empire. Her interest was, therefore, identified with that of Spain, and she was, no doubt, willing to unite with Spain in giving the most limited construction to the cession to the United States. I find that Congress, by an act passed on the 24th of February, 1804, have solemnly asserted our right to this territory, and authorized the President to take possession of it and to establish a port of entry, &c., on the Mobile, whenever he should deem it expedient. The time when, and circumstances under which, this step should be taken, were submitted to the discretion of the Executive. I may be permitted to ask why, if we had no title to this territory, the President was urged to take possession by force, and censured for not doing it? If my recollection is accurate, all parties agreed we ought to have the country--they only differed as to the mode of acquiring it. The President, influenced by that policy which has hitherto guided the present Administration, of avoiding making this nation a party in the present European war, in the exercise of the discretionary power vested in him by that act, did not think proper to seize upon it by force, but to wait for the occurrence of events to throw it into our hands without a struggle. The expediency of taking possession of this territory cannot, it appears to me, admit of a doubt. If the President had refused or hesitated to meet the wishes of the people of West Florida by extending to them the protection of the American Government, and they had sought security in the arms of a foreign power, what should we have heard? He would have been charged with imbecility, and fear of incurring responsibility. He would have been denounced as unworthy of the station his country had assigned him. Let it be remembered that the Orleans country is our most valuable part--remote from our physical force--a climate more fatal to our people than the sword of a victorious enemy--and that an enemy in possession of West Florida can with great facility cut off New Orleans from the upper country. If the fortunate moment had not been seized, this province would have fallen into the hands of a foreign power, or, if time had been given for intrigue to mature itself, another Burr plot would probably have risen from the ashes of the first, more formidable to the integrity of this empire. Burr, like Archimedes, fancied that if he had a place to stand upon--a place beyond the jurisdiction of the United States to rally his followers--he could overturn the Government. He has, it is true, fled from the frowns of an indignant country; but he was not alone. Let an opportunity be afforded, and a thousand Burrs would throw off the mask and point their arms against the Federal Union. On a subject of such interest, it would have been criminal in those appointed to watch over the national safety to have hesitated. I was surprised to hear this procedure pronounced a robbery, and making of war. Why should our sympathies be awakened in favor of Spain? What claim has the Spanish Government upon our moderation and forbearance? What has been her conduct? From the moment we became an independent nation she has been intriguing to separate the Western country from the Atlantic States. She has made, at different periods, and as late as the year 1797, in violation of her treaty of 1795 with this country, direct propositions to the Western people to secede from the Union, and to accomplish her object, at least attempted the use of means the most corrupt. What has been her conduct since we acquired Louisiana? If I am correctly informed, our deserters and slaves who have taken refuge in Florida, in many instances have not been surrendered, and enormous duties have been imposed on our vessels navigating the Mobile. Under all these provocations, sufficient to have drawn upon them from almost any other nation an open declaration of war, our Government, influenced by that pacific policy which has hitherto regulated its course towards foreign nations, exercised patience and forbearance. And since the late revolution in Spain, I believe it will not be pretended that this Government has manifested any disposition to throw our weight into the scale of France against the Spanish party. Our Government has taken no step in relation to West Florida, until compelled by a regard to our own safety. The Executive in the proceeding under consideration has used language the most conciliatory, and on the face of his proclamation given a pledge that this Government will at any time enter into amicable negotiations on the subject of our claim to this territory, if it shall be disputed. There are other at least plausible grounds upon which this bill as an original proposition might be supported entirely independent of the cession. Spain is indebted to us a large amount for spoliations committed on our commerce; and as there is no Government at present towards which the ordinary proceeding can be pursued to obtain payment, could we not, on the principle of the attachment law, as an act of self-justice, seize on this territory to secure satisfaction? As this measure has been emphatically called an act of robbery and war, it may not be amiss to consider the political state of the Spanish colonies in relation to the Spanish Government in the hands of the Junta, and the new dynasty about to be established by Bonaparte. It may be said, perhaps, that the late alienation of the Spanish Crown and the revolution in Spain have dissolved the tie which connects them with the mother country. On this point I will not detain the Senate. If the French arms shall be successful in Spain, of which I believe few entertain much doubt, and the Junta shall be driven from Old Spain to any of the colonies, their political character must cease, and they can no longer claim the exercise of any jurisdiction or sovereignty over the colonies. The colonies are not bound together by any political bond unconnected with the mother country; they are subject to the mother country, but the moment she is conquered, they are at liberty to provide for themselves, unless, indeed, the Emperor of France or King Joseph can claim them. France, in an official exposé, and King Joseph, by proclamation, have declared their willingness that the colonies should become independent, provided they did not connect themselves with Great Britain. If France, therefore, shall, which is probable, conquer the mother country, we are fully authorized by her public declaration to the world to acquire, with the consent of the inhabitants, not only West but East Florida, Cuba, or any other province which we shall deem it expedient to connect with the United States. This bill may be justified, independent of title, by the law of self-preservation. Have we any assurance that the Spanish Government will maintain their neutrality in this territory if we should be involved in a war with either France or Great Britain? Can they, or will they, prevent the march of an enemy's forces through that territory into the United States? No, sir; we have every reason to expect the contrary. Considering how vulnerable we are from this territory, its present state, and the aspect of our foreign affairs, it appears to me we are authorized to take possession of it as a measure of national security. It may be objected that taking the property of others by force tends to relax the morals of the people, by destroying that criterion of right and wrong, the observance of which is so necessary to the purity of our Republic; and I am ready to admit that we ought to proceed upon this principle of necessity and expediency with great caution, and never to act upon it but in extreme and evident cases. Had we a colony on the coast of England or France, similarly situated, we know they would not hesitate. When we reflect that our property is seized by almost every nation; that the laws and usages of nations are disregarded by nearly all Europe; that their conduct has been lately marked with a degree of perfidy and rapacity unexampled in the history of the civilized world; that they have in fact become States of Barbary; it appears to me that we ought not, as regards them, to be over nice or squeamish upon questions of this sort. Shall we sit here with our arms folded until the enemy is at our gates? If we waste our time in discussion and refining abstract questions of right and wrong, we shall lose our independence, and we shall deserve to lose it. I had hoped this bill would have passed without much debate; I know the people are tired of long speeches and documents. This fondness for lengthy discussions, has even drawn upon Congress the reproaches of the ladies; they begin to say--less talk and more action. FRIDAY, December 28. _Occupation of West Florida._ The Senate resumed the consideration of the bill respecting the territory west of the Perdido. Mr. HORSEY addressed the Senate as follows: Mr. President: The bill under consideration contains two important provisions. The first in effect incorporates with the Territory of Orleans the province of West Florida east of the Mississippi, as far as the river Perdido; the second extends to that part of the province thus incorporated the laws now in force within the said Territory. These provisions naturally involve two questions: first, whether the United States have a good title to that part of the province described in the bill; and secondly, whether it would be expedient for the Government of the United States to take possession of it by force. Before I proceed to consider these questions, I beg leave, Mr. President, to advert to what may be considered a preliminary question. I refer to the authority of the President of the United States to issue his proclamation and the accompanying orders of the 27th of August last, directing the forcible occupation of that territory. I deem it material to consider this point, because, if the proclamation were unauthorized, then Congress are not committed by it, nor are they bound to give it their sanction. If the President had any authority to issue this proclamation, that authority must have been derived either under the Constitution of the United States or under some act or acts of Congress. The President has no power which does not proceed from one or the other of these sources. The constitution has given to Congress the exclusive power of making laws and declaring war--to the President the power of executing the laws of the Union. The powers of the one are legislative, of the other executive. The question then would be, whether the President in issuing this proclamation has not transcended the limits of his powers. Sir, what is the nature and import of this proclamation? In my humble conception both legislation and war. War--because it directs the occupation of this territory by a military force. The regular troops of the United States are ordered to march, and if they should not be found adequate to the object, the Governors of the Orleans and Mississippi Territories are directed to call out the militia of their respective territories, to co-operate with the regular forces. But we shall be told, sir, that the President, in issuing this proclamation, has taken the precaution to direct that in case any particular place, however small, should remain in possession of a Spanish force, the commanding officer is not to proceed to employ force against it, but to make immediate report thereof to the Secretary of State. Suppose while your commanding officer is making this report, the Spanish force sallies out and makes an attack upon your army, or suppose a Spanish army, with Governor Folch at their head, should march from East Florida with the view of repelling the invasion of this territory; what are Governor Claiborne and his army to do? Ground their arms and surrender themselves prisoners of war; or are they, sir, to drop their muskets and take to their heels? These are the only alternatives presented--they must either surrender, run, or fight. And who will doubt which of these alternatives the gallantry of an American army would impel them to choose! Sir, a conflict would be inevitable. But while the President has been so affectedly cautious with respect to Spanish force, he has overlooked altogether the contingency of resistance on the part of the revolutionists. These patriots it would seem had called a convention and issued a declaration of independence, and now it appears have formed and established a regular Government, which is organized and in operation. If these proceedings are not all a sham, the territory in question is now in the possession of a people claiming to be sovereign and independent; and is it supposable that this people can behave so dastardly as to submit, without a struggle, to the incursion of a hostile army, whose avowed object is the conquest of the country and the subversion of its constitution and independence? And here permit me to remark, that the style and tenor of the letter from the Secretary of State of the 15th of November, 1810, to Governor Holmes, in answer to the letter of the President of the convention praying the recognition and protection of the United States, are not admirably calculated to give a welcome reception to the American Army. If then assistance should be offered on the part of the constitutionalists, what is your army to do? The orders contain no proviso in this particular, requiring that the fact should be reported to the Department of State; but their clear intent is, that force should be employed. Under such circumstances is it not to be expected that this measure of the Executive will result in war? Is it not to be expected, that either the Spaniards or the Conventionalists will attempt to repel this palpable infringement upon their rights and territory? But, sir, this proclamation is not only war, but it is an act of legislation too. It annexes the territory in question to the Orleans Territory; it creates a Governor; it enacts laws, and appropriates money. It gives the Governor of the Orleans Territory all the authorities and functions over this particular territory which he possesses by virtue of his office as governor, and makes an appropriation of a sum of money, not exceeding twenty thousand dollars. This proclamation is substantially the bill under discussion, except that it goes much further. The first section of the bill only contains an annexation of the territory in question to the Orleans Territory--this the proclamation has already done. The second section only extends the laws of that territory to the particular territory in question--and this too the proclamation has already done. The only material difference in fact existing between the proclamation and this bill is, that the proclamation contains the further and important provision for raising the troops and the money necessary for carrying it into execution. And here, sir, I will take the liberty to remark that I do not consider this bill the only one intended on this subject. This is a mere entering wedge--when this is passed, Congress are permitted to pass another, providing the necessary military and pecuniary means to carry this act into execution; and, indeed, I should not be surprised, if, before the close of the session, a bill were introduced to take possession of East as well as West Florida. If the President had no power under the constitution to issue this proclamation, I think it equally clear he had none under any existing laws of Congress. The act of the 31st of October, 1803, authorizing the President of the United States to take possession of and occupy the territory ceded by France to the United States, by the treaty concluded at Paris on the 30th of April, 1803, I apprehend, expired on the 1st day of October, 1804; to which period it was limited by the first section of the act for erecting Louisiana into two Territories, and providing for the temporary government thereof, passed the 20th day of March, 1804. This section enacts, that "the act passed the 31st day of October, entitled 'An act to enable the President of the United States to take possession of the territories ceded by France to the United States, by the treaty concluded at Paris, on the 30th day of April, 1803; and for the temporary government thereof,' shall continue in force until the 1st day of October, 1804, any thing therein to the contrary notwithstanding; on which said 1st day of October, this act shall commence, and have full force, and shall continue in force for and during the term of one year, and to the end of the next session of Congress, which may happen thereafter." Let it be recollected that at the time this last-mentioned act passed, the President had fulfilled his powers, under the act of the 31st of October, 1803, so far as it respected the taking possession of Louisiana. Possession had been actually and formally delivered, and the stock created and transferred to the French Government, according to the stipulations of the treaty. Besides, the very nature and design of the act of the 26th March, independent of the express limitation, superseded the act of the 31st of October. But it is said, there are acts of Congress which, though contemplating a present possession in a foreign authority, also contemplate an ultimate possession by the United States, under which the proclamation may be justified, even though the act of the 31st of October should have expired. The acts here referred to, I understand to be the act of the 24th of February, 1804, for laying and collecting duties within the territories ceded by France to the United States, the act above mentioned of the 26th of March, erecting Louisiana into two Territories, and the act of the 2d of March, 1805, authorizing the establishment of a Government in the Territory of Orleans, similar to the Government of the Mississippi Territory. The President himself admits, in his message at the opening of the session, that those laws contemplate a _present possession in a foreign Power_; but he further says, they contemplate an eventual possession by the United States. But, sir, let me ask what sort of possession? A possession _by force_? No, sir, not a single provision can be shown to justify such a construction. But a possession to be obtained _by a friendly negotiation_. I am warranted in this construction, not merely by the letter of those laws, by the lapse of time since their enactment, by the express official declaration of Mr. Madison himself, while Secretary of State. It is a notorious fact, that when the act of the 24th of February passed, the Marquis D'Yrujo, then the Minister of his Catholic Majesty in the United States, in a solemn form protested against that law; and that Mr. Madison, by a letter dated on the 19th of March, assured the Marquis that the provisions relating to Louisiana "would not be extended beyond the _acknowledged limits_ of the United States, until it shall be rendered expedient by _friendly elucidation and adjustments_ with His Catholic Majesty." Upon the whole, sir, I have not been able to discover the shadow of authority, on the ground of which the President issued this proclamation. He has recited none, amidst all his recitals, and none appears to me but his own mere will and pleasure. The act I therefore cannot view in any other light than an unwarrantable assumption of power and a violation of the constitution. Considering then, sir, this act of the Executive as illegal and unauthorized, we are fully at liberty to enter into the discussion of the great questions of title and expediency; a task which I will proceed to discharge to the best of my ability. The first I propose to examine is, the title of the United States to the territory in question. With respect to this, I perceive, it unfortunately happens that honorable gentlemen who support the bill do not precisely accord in sentiment. The gentleman from Vermont (Mr. BRADLEY) has frankly conceded that the United States acquired no title under the Treaty of St. Ildefonso. Another gentleman (Mr. SMITH, of Maryland) has declared that the United States did derive a title under that treaty, and disclaims the title set up by the honorable gentleman from Vermont. I shall not undertake to decide which of the two gentlemen is right, if either be, but shall contend, and humbly expect to prove, that both are wrong. What is the nature of the title set up by the gentleman from Vermont? Not under the treaty, he has candidly owned, but he supposes a title to exist on the ground of certain quaint principles of the common law, relative to the doctrines of estoppel and occupancy. I am extremely happy, sir, to find that honorable gentleman introducing the common law as authority upon this floor, especially on so great an occasion. His doctrines certainly evince both research and ingenuity, and show that he, like many with whom he acts, has not absolutely lost his veneration for the black letter. What are his doctrines? Why in the first place, he says, admitting that Spain did not cede Florida to France by the Treaty of St. Ildefonso, and admitting that France had no title to Florida on the 30th of April, 1803, when she ceded Louisiana to the United States, yet, as France has since acquired a title to the crown of Spain and her colonies, and as the French Plenipotentiary, when the treaty of 30th of April, 1803, was executed, did state and induce the American Ministers to understand and believe that Florida was comprehended in the cession, why the title, though France had it not when the treaty was signed, yet having it subsequently, immediately attached in the United States, and France is estopped from saying any thing to the contrary. This argument, sir, begs every thing: 1st. That the declarations on the part of the French Minister were made; 2dly, that being made they would operate to pass the title contrary to the express letter of the treaty; and lastly, that France has acquired a good title to the crown of Spain and her colonies. I will yield to the gentleman his first proposition, and grant, as he seems to desire it, that these representations were made--and what do they prove? Not that the title passed, but that the French Minister was too deep for the American Plenipotentiaries, and, to use a jockey phrase, took them in. Sir, the only legal effect of such a fraud would be, to violate the treaty--to annul the contract. France, to be sure, would be bound upon principles of equity to refund the purchase money. If then, sir, I am correct in stating, that no conversations or verbal declarations, however fraudulent, would operate to control or vary the plain letter and intent of the treaty, as appearing on the face of it, then upon the gentleman's own acknowledgments no title to Florida could have passed to the United States under the treaty of 1803. For the gentleman has unequivocally admitted that Florida was not ceded by Spain to France by the Treaty of St. Ildefonso, and France, it is admitted on all sides, by the treaty of 1803, only ceded to the United States Louisiana, as fully, and in the same manner she acquired it from Spain by the Treaty of St. Ildefonso; nor, sir, can I admit that France has acquired a legitimate title to the crown and colonies of Spain, which must also appear before the gentleman can avail himself of his argument. What, Mr. President, is the nature of this title? Was it obtained _bona fide_ for a fair and full consideration? No, sir, but by the most abominable perfidy, corruption and duress, of which the pages of history furnish an example. Was not the royal family decoyed by artifice from Madrid to Bayonne? Was not the old Monarch compelled to resign his crown to Ferdinand the Seventh, and was not that Prince a prisoner of Bonaparte; and, while in this condition, and, for aught we know, the bayonet at his breast, or the cup to his lips, constrained to resign his crown to the Emperor of France? Sir, what sort of title is this? Upon the eternal principles of justice, upon the principles of the common law and common sense, an instrument thus obtained is not obligatory on the party executing it. But have the people of Spain acquiesced? No, sir; the instant publicity was given to the transaction they became indignant, and with one voice rose, resolved to resist this usurpation. To this hour they have not submitted. But the gentleman has said that Spain is no longer able to hold Florida; that foreign emissaries will take it if the United States do not, and that it may be lawfully taken by the United States on the ground of the law of occupancy. That title may be acquired by occupancy is not to be doubted. It is the mode by which title to property was originally acquired; but to obtain a title in this way the country must be vacant, uninhabited and not claimed by another proprietor. But in this instance is the territory vacant--or uninhabited--or abandoned by its proprietors? No, sir. The territory is either in the possession of Spain and claimed by her, or of the revolutionists, and if either be in possession, by the law of occupancy, you have no right to disturb them. Clearly then, sir, upon the principles and admissions of the honorable gentleman from Vermont, the United States have no title to Florida. And now, sir, with the indulgence of the Senate, I will proceed to consider as briefly as possible the nature of this title as derived under the Treaty of St. Ildefonso. Here, it will be granted, I meet the question fairly. This, I presume, is the title relied upon, as well by the Executive as the majority of the supporters of this bill. In order fully to understand this subject, it is necessary to inquire into the principal cause of the war of 1756. The eastern boundary of Louisiana, I believe, was the chief cause of that war. The French were in the possession of the Mississippi, and claimed as part of Louisiana not only the country to the west of that river, but east as far as the Alleghany mountains. France, having this claim, and being in possession of Canada, conceived the project of uniting Louisiana with Canada. To accomplish her purpose she established a line of posts from the Lakes to the Ohio, and commenced encroachments upon the then British colonies. These encroachments she was pressing so far that Great Britain perceived it would be necessary to repel them. This brought on the war of '56, which, after a bloody conflict of seven years, terminated disastrously to France and her allies, and resulted in the establishment of the Mississippi, the Iberville, and the lakes Maurepas and Pontchartrain, as the boundary of Louisiana, giving to Great Britain all the territory on the east of that boundary, except the island and town of New Orleans, and to France all upon the west, including the island and town of New Orleans. A more particular examination of the results of this war is important. By it France lost Canada and most of her West India islands. Spain, the ally of France, lost Cuba. By the preliminary articles of peace between Great Britain, France, and Spain, signed at Fontainebleau, and dated the 3d November, 1762, France renounced all pretensions to Nova Scotia, and ceded and guarantied to his Britannic Majesty, in full right, Canada with all its dependencies. The 6th article stipulates, "In order to re-establish peace on the most solid and lasting foundations and to remove every subject of dispute with regard to the limits of the British and French Territories on the continent of North America, it is agreed that for the future the confines between the dominions of His Britannic Majesty and those of his most Christian Majesty, (French King,) in that part of the world, shall be irrevocably fixed by a line drawn along the middle of the river Mississippi from its source, as far as the river Iberville, and from thence by a line drawn along the middle of this river, and of the lakes Maurepas and Pontchartrain to the sea; and to this purpose, the most Christian King cedes in full right, and guaranties to His Britannic Majesty, the river and port of Mobile, (now West Florida,) and every thing that he possesses, or ought to have possessed on the left (east) side of the river Mississippi, except the town of New Orleans, and the island on which it is situated, which shall remain to France." By the 18th article, Great Britain restores to Spain all that she had conquered in the island of Cuba, with the fortress of Havana. In consequence of which His Catholic Majesty (King of Spain) by the 19th article "cedes and guaranties in full right, to His Britannic Majesty, all that Spain possesses on the continent of North America, to the east or the south-east of the Mississippi, including Florida, with Fort St. Augustine and the bay of Pensacola." (Now consisting of East and a part of West Florida.) By the definitive treaty of peace and friendship between the Kings of Great Britain, France, and Spain, concluded at Paris on the 10th day of February, 1763, the preliminary articles were adopted, ratified, and confirmed. By another treaty bearing date the 3d day of November, 1762, the same day and year the preliminary articles are dated, as appears by the letter to M. L'Abbadie, which I will presently refer to, France cedes Louisiana to Spain, together with the town and island of New Orleans. This last-mentioned treaty has never been published, but the letter of the King of France to M. L'Abbadie recites the purport as well as date of it. This letter purports to be an order signed by the King of France, dated at Versailles, the 21st April, 1764, and directed to M. L'Abbadie, director-general, and commandant for His Majesty in Louisiana. This letter was published at New Orleans in October, 1764, and circulated amongst the French inhabitants there. It recites: "By a special act, done at Fontainebleau, November 3, 1762, of my own will and mere motion, having ceded to my very dear and best beloved cousin the King of Spain, and to his successors, in full property, purely and simply, and without any exceptions, the whole country known by the name of Louisiana, together with New Orleans, and the island in which the said city is situated; and by another act done at the Escurial, November 13, in the same year, His Catholic Majesty having accepted the cession of the said country of Louisiana, and the city and island of New Orleans, agreeably to the copies of the said acts, which you will find hereunto annexed; I write you this letter to inform you, that my intention is, that on the receipt of these presents, whether they come to your hands by the officers of His Catholic Majesty or directly by such French vessels as may be charged with the same, you are to deliver up to the governor, or officer appointed for that purpose by the King of Spain, the said country and colony of Louisiana, and the posts thereon depending, likewise the city and island of New Orleans, in such state and condition as they shall be found to be in on the day of the said cession, willing that in all time to come they shall belong to His Catholic Majesty, to be governed and administered by his governors and officers, and as possessed by him in full property, without any exceptions." From this document, and the treaties referred to, it appears that in the month of October, 1764, when the whole of Louisiana, with the island and town of New Orleans, was delivered to Spain, that Great Britain was in the peaceable possession of all the country on the east of the Mississippi. That with respect to Florida particularly, Great Britain was in possession, and nobody dreamed at that time, that Florida either East or West, was any part of Louisiana. Had it been so considered under the orders of the French King, to deliver the _whole_ of the province to Spain, undoubtedly Florida would have been delivered. Immediately after the cession of '62-3, Great Britain took possession of all the country on the east of the Mississippi, except only the town and island of New Orleans, and, in the year 1763 or '4, erected Old Florida, Pensacola, the river and port of Mobile, &c., into two distinct provinces, under the name of East and West Florida, names which they have borne ever since. In 1783, at the close of our Revolutionary war, Great Britain ceded to Spain East and West Florida, which, from that period to the present time, have been held by Spain under these names, as separate provinces from Louisiana. In the year 1800, when Spain was in possession of East and West Florida and Louisiana, as three several and distinct provinces, the famous Treaty of St. Ildefonso was concluded, whereby Spain "retrocedes to France the colony or province of Louisiana, with the same extent that it now has in the hands of Spain, and that it had when France possessed it; and such as it should be after the treaties subsequently entered into between Spain and other States." This treaty likewise has not been published, but the part just referred to is cited in the treaty between the United States and France of the 30th of April, 1803, whereby France cedes to the United States Louisiana, as fully and in the same manner as she acquired it of Spain by the Treaty of St. Ildefonso. Spain delivered possession in pursuance of the Treaty of St. Ildefonso to France, and France, in pursuance of the treaty of 1803, delivered possession to the United States, both powers receiving the country on the West of the Mississippi, with the island and city of New Orleans, like Spain originally received it from France, as the whole of Louisiana. I have now, I believe, sir, given a full and I trust fair and correct statement of the evidences and facts relative to the question of title. A few remarks will close what I have to say on this head. The letter from the King of France to M. L'Abbadie, is a very important document. It shows that the King of France, under whom we claim, and by whose admissions we are bound, so long ago as 1764, treated and considered the country on the west of the Mississippi as the whole of Louisiana. That, so considering it, he ceded and delivered it to Spain, together with the island and town of New Orleans, from which latter words it may be inferred that even the island and town of New Orleans were then not considered a part of Louisiana. In 1800, when Spain ceded back the colony of Louisiana to France, that country was only known on the west of the Mississippi. The war '56, and the treaties of '62-3, had fixed the line and obliterated forever the name of Louisiana on the east of that river. The Treaty of St. Ildefonso, of 1800, is a mere treaty of _retrocession_. The translation purports to be a treaty of cession, it is true, but acknowledged on all sides to be erroneous. The original treaty was in the French language, and it is by that we are to be governed. The expression in the original is "Sa Majesté Catholique promit et s'engage, de son cote, _à retroceder_ à la Republique Française," &c. _A retroceder_ signifying to retrocede, to restore, or to use a term familiar in the State I have the honor to represent, _reconvey_ the colony of Louisiana to France, as it was when France conveyed it to Spain. The honorable gentleman from Kentucky, (Mr. POPE,) pressed by this argument, could only get round it by alleging that the original treaty between France and Spain was dated in 1761, prior to the settlement of the line and the cessions to Great Britain. But, unfortunately, he could not produce one title of authentic evidence to establish his position, a position absolutely negatived by the official letter to M. L'Abbadie. But that gentleman has further told us, that from the words "with the same extent it now has in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between other States," an intention may be raised to include Florida. I fully subscribe to the gentleman's rule, that we must give such a construction to the treaty, and particularly to the passage just referred to, as will give effect, if possible, to all the parts; and this I apprehend may be done without having recourse to the forced construction contended for. In the first place, the two first members of the passage may be reconciled and have effect by considering them as a twofold description of the same territory. From abundant caution it is not uncommon to give various descriptions of the same object. Sometimes the name is simply used, sometimes it is described by metes and bounds, and sometimes by the names of the adjacent countries. Sometime a twofold, and sometimes a threefold description is given. And upon a critical examination, I think it will be found that this is the only true construction the instrument will bear. If you give it the construction the gentleman contends for, to wit: that the second member of the passage is an extension of the description given by the first, then the second includes the first, and of consequence the first would be nugatory and superfluous; which would be doing violence to the gentleman's own rule of construction. But if the gentleman will insist on giving to the second member an enlarged or extended sense, it may be done by applying it to the western boundaries of Louisiana. It is said that when France ceded Louisiana to Spain, in '62, the country extended on the west to the river Sabine, and that Spain, prior to the treaty of 1808, detached from Louisiana the territory south of the waters emptying into the Red River, and erected it into a new province under the name of the "Province of Texas." Sir, the operations on the Sabine are memorable. It is well known how mysteriously they were suspended by an arrangement in 1806, by which it was agreed that the Spaniards should not cross the Sabine, and that the Americans should not extend their settlements as far as that river. And for this purpose, to prevent collisions, until the difference should be settled, instructions were given that no surveys should be made west of a meridian passing by Nachitoches. If the gentleman is not satisfied by travelling to the west, by going to the east he may find an application--the town and island of New Orleans, which, though named in the cession to Spain, are not named in the treaty of retrocession to France. As to the third member of the passage, it is a formal provision introduced into most treaties, and would be understood if not expressed. Of course the cession would be subject to prior treaties with other States. In 1795, Spain concluded a treaty with the United States, whereby she agrees that the navigation of the Mississippi, in its whole breadth from its source to the ocean, shall be free to the citizens of the United States, and that they shall have the right to deposite their merchandise and effects in the port of New Orleans, free of duty for three years, and after that period, if the privilege is not extended at the port of New Orleans, she is to assign to the United States, on another part of the banks of the Mississippi, an equivalent establishment. To these provisions the clause in question I apprehend refers. The holding or possession of Louisiana is correspondent with the construction I have given the treaty. When possession was originally delivered by France to Spain, Florida was not delivered or considered any part of the cession. When Louisiana, under the Treaty of St. Ildefonso was restored to France, Florida was not delivered. When Louisiana, under the treaty of 1803, was delivered to the United States, Florida was not comprehended. Indeed the Government of the United States then treated the country on the west of the Mississippi, including the town and island of New Orleans, as the whole of Louisiana, by receiving it and paying the purchase money, which by the terms of the treaty they were not bound to do, and which by the act of Congress creating the Louisiana stock they were not authorized to do, till after full and entire possession had been delivered. Mr. President, is it conceivable that after the boundary in question had been established by the most solemn compact of nations, and consecrated by a long and bloody war, and, too, by a lapse of near forty years--is it conceivable that the territory in question, excluded by that boundary, and raised into a distinct province under a distinct name--a name it ever bore after the establishment of the boundary--is it, I say, sir, conceivable, if the parties meant to have included this province in the Treaty of St. Ildefonso, that it should not have been specifically named? Mr. CLAY.--Mr. President, it would have gratified me if some other gentleman had undertaken to reply to the ingenious argument which you have just heard. But not perceiving any one disposed to do so, a sense of duty obliges me, though very unwell, to claim your indulgence while I offer my sentiments on this subject, so interesting to the Union at large, but particularly to the western section of it. Allow me, sir, to express my admiration at the more than Aristidean justice, which, in a question of territorial title between the United States and a foreign nation, induces certain gentlemen to espouse the pretensions of the foreign nation. Doubtless, in any future negotiations, she will have too much magnanimity to avail herself of these spontaneous concessions in her favor, made on the floor of the Senate of the United States. It was to have been expected, that in a question like the present, gentlemen, even on the same side, would have different views, and although arriving at a common conclusion, would do so by various arguments. And hence the honorable gentleman from Vermont entertains doubts with regard to our title against Spain, while he feels entirely satisfied of it against France. Believing, as I do, that our title against both powers is indisputable, under the Treaty of St. Ildefonso between Spain and France, and, the treaty between the French Republic and the United States, I shall not inquire into the treachery by which the King of Spain is alleged to have lost his crown; nor shall I stop to discuss the question involved in the overthrow of the Spanish monarchy, and how far the power of Spain ought to be considered as merged in that of France. I shall leave the honorable gentleman from Delaware to mourn over the fortunes of the fallen Charles. I have no commiseration for princes. My sympathies are reserved for the great mass of mankind, and I own that the people of Spain have them most sincerely. I will adopt the course suggested by the nature of the subject, and pursued by other gentlemen, of examining into our title to the country lying between the Mississippi and the Rio Perdido (which, to avoid circumlocution, I will call West Florida, although it is not the whole of it)--and the propriety of the recent measures taken for the occupation of it. Our title depends, first, upon the limits of the province or colony of Louisiana, and secondly, upon a just exposition of the treaties before mentioned. On this occasion it is only necessary to fix the eastern boundary. In order to ascertain this, it is proper to take a cursory view of the settlement of the country; the basis of European title to colonies in America being prior discovery or prior occupancy. In 1682, La Salle migrated from Canada, then owned by France, descended the Mississippi and named the country which it waters, Louisiana. About 1698, D'Iberville discovered by sea the mouth of the Mississippi, established a colony at the Isle Dauphine or Massacre, which lies at the mouth of the bay of Mobile, and one at the mouth of the river Mobile, and was appointed, by France, governor of the country. In the year 1717, the famous West India Company sent inhabitants to the Isle Dauphine, and found some of those who had been settled there under the auspices of D'Iberville. About the same period Biloxi, near the Pascagoula, was settled. In 1719, the city of New Orleans was laid off, and the seat of the Government of Louisiana was established there. In 1736, the French erected a fort on Tombigbee. These facts prove that France had the actual possession of the country as far east as the Mobile at least. But the great instrument which ascertains, beyond all doubt, that the country in question is comprehended within the limits of Louisiana, is one of the most authentic and solemn character which the archives of the nation can furnish. I mean the patent granted in 1712, by Louis XIV. to Crozat. [Here Mr. C. read such parts of the patent as were applicable to the subject.] According to this document, in describing the province or colony of Louisiana, it is declared to be bounded by Carolina on the east and Old and New Mexico on the west. Under this high record evidence, it might be insisted that we have a fair claim to East as well as West Florida, against France at least, unless she has by some convention or other obligatory act, restricted the eastern limit of the province. It has, indeed, been asserted that by the treaty between France and Spain, concluded in the year 1719, the Perdido was expressly stipulated to be the boundary between their respective provinces of Florida on the east and Louisiana on the west; but as I have been unable to find any such treaty, I am induced to doubt its existence. About the same period, to wit, towards the seventeenth century, when France settled the isle Dauphine and the Mobile, Spain erected a fort at Pensacola. But Spain never pushed her actual settlements or conquests further west than the bay of Pensacola, whilst those of the French were bounded on the east by the Mobile. Between those two points, a space of about thirteen or fourteen leagues, neither nation had the exclusive possession. The Rio Perdido, forming the bay of the same name, discharges itself into the Gulf of Mexico between the Mobile and Pensacola, and, being a natural and the most notorious object between them, presented itself as a suitable boundary between the possessions of the two nations. It accordingly appears very early to have been adopted as the boundary, by tacit if not express consent. The ancient charts and historians, therefore, of the country so represent it. Dupratz, one of the most accurate historians in point of fact and detail of the time, whose work was published as early as 1758, describes the coast as being bounded on the east by the Rio Perdido. In truth, sir, no European nation whatever, except France, ever occupied any portion of West Florida, prior to her cession of it to England in 1762. The gentlemen on the other side do not indeed strongly controvert, if they do not expressly admit, that Louisiana, as held by France anterior to her cession of it in 1762, reached to the Perdido. The only observation made by the gentleman from Delaware to the contrary, to wit, that the island of New Orleans being particularly mentioned could not for that reason constitute a part of Louisiana, is susceptible of a very satisfactory answer. That island was excepted out of the grant to England, and was the only part of the province east of the river that was so excepted. It formed in itself one of the most prominent and important objects of the cession to Spain originally, and was transferred to her with the portion of the province west of the Mississippi. It might with equal propriety be urged that St. Augustine is not in East Florida, because St. Augustine is expressly mentioned by Spain in her cession of that province to England. From this view of the subject I think it results that the province of Louisiana comprised West Florida, previous to the year 1762. What is done with it at this epoch? By a secret convention of the 3d of November of that year, France ceded the country lying west of the Mississippi, and the island of New Orleans to Spain; and by a contemporaneous act, the articles preliminary to the definitive Treaty of 1763, she transferred West Florida to England. Thus at the same instant of time she alienated the whole province. Posterior to this grant, Great Britain, having also acquired from Spain her possessions east of the Mississippi, erected the country into two provinces, East and West Florida. In this state of things it continued until the peace of 1783, when Great Britain, in consequence of the events of the war, surrendered the country to Spain, who for the _first_ time came into the actual possession of West Florida. Well, sir, how does she dispose of it? She re-annexes it to the residue of Louisiana; extends the jurisdiction of that Government to it, and subjects the Governors or commandants of the districts of Baton Rouge, Feliciana, Mobile, and Pensacola, to the authority of the Governor of Louisiana, residing at New Orleans; whereas the Governor of East Florida is placed wholly without his control, and is made amenable directly to the Governor of the Havana. And I have been credibly informed that all the concessions or grants of land, made in West Florida, under the authority of Spain, run in the name of the _government of Louisiana_, You cannot have forgotten that about the period when we took possession of New Orleans, under the Treaty of Cession from France, the whole country rung with the nefarious speculations which were alleged to be practising in that city, with the connivance, if not actual participation of the Spanish authorities, by the procurement of surreptitious grants of land, particularly in the district of Feliciana. West Florida, then, not only as France has held it, but as it was in the hands of Spain, made a part of the province of Louisiana, as much so as the jurisdiction or district of Baton Rouge constituted a part of West Florida. What, then, is the true construction of the Treaties of St. Ildefonso and of April, 1803, from whence our title is derived? If an ambiguity exist in a grant, the interpretation most favorable to the grantee is to be preferred. It was the duty of the grantor to have expressed himself in plain and intelligible terms. This is the doctrine not of Coke only, (whose dicta I admit have nothing to do with the question,) but of the code of universal law. The doctrine is entitled to augmented force when a clause only of the instrument is exhibited, in which clause the ambiguity lurks, and the residue of the instrument is kept back by the grantor. The entire convention of 1762, by which France transferred Louisiana to Spain, is concealed, and the whole of the Treaty of St. Ildefonso, except a solitary clause. We are thus deprived of the aid which a full view of both of those instruments would afford. But we have no occasion to resort to any rules of construction, however reasonable in themselves, to establish our title. A competent knowledge of the facts, connected with the case, and a candid appeal to the treaties, are alone sufficient to manifest our right. The negotiators of the treaty of 1803 having signed with the same ceremony two copies, one in the English and the other in the French language, it has been contended, that in the English version the term "cede" has been erroneously used instead of "retrocede," which is the expression in the French copy. And it is argued that we are bound by the phraseology of the French copy, because it is declared that the treaty was agreed to in that language. It would not be very unfair to inquire if this is not like the common case, in private life, where individuals enter into a contract, of which each party retains a copy, duly executed. In such case neither has the preference. We might as well say to France we will cling by the English copy, as she could insist upon an adherence to the French copy; and if she urged ignorance on the part of Mr. Marbois, her negotiator, of our language, we might, with equal propriety, plead ignorance on the part of our negotiators of her language. As this, however, is a disputable point, I do not avail myself of it; gentlemen shall have the full benefit of the expressions in the French copy. According to this, then, in reciting the Treaty of St. Ildefonso, it is declared by Spain in 1800, that she retrocedes to France the colony or province of Louisiana, with the same extent that it then had in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and other States. This latter member of the description has been sufficiently explained by my colleague. It is said that since France in 1762 ceded to Spain only Louisiana west of the Mississippi, and the island of New Orleans, the retrocession comprehended no more--that the retrocession _ex vi termini_ was commensurate with and limited by the direct cession from France to Spain. If this were true, then the description, such as Spain held it, that is in 1800, comprising West Florida, and such as France possessed it, that is in 1762, prior to the several cessions, comprising also West Florida, would be totally inoperative. But the definition of the term retrocession, contended for by the other side, is denied. It does not exclude the instrumentality of a third party. It means restoration or reconveyance of the thing originally ceded, and so the gentleman from Delaware acknowledged. I admit that the thing restored must have come to the restoring party from the party to whom it is retroceded, whether directly or indirectly is wholly immaterial. In its passage it may have come through a dozen hands. The retroceding party must claim _under_ and in virtue of the right originally possessed by the party to whom the retrocession takes place. Allow me to put a case: You own an estate called Louisiana. You convey one moiety of it to the gentleman from Delaware, and the other to me; he conveys his moiety to me, and I thus become entitled to the whole. By a suitable instrument I reconvey or retrocede the estate called Louisiana to you as I now hold it, and as you held it; what passes to you? The whole estate or my moiety only? Let me indulge another supposition: that the gentleman from Delaware, after he received from you his moiety, had bestowed a new denomination upon it, and called it West Florida, would that circumstance vary the operation of my act of retrocession to you? The case supposed is in truth the real one between the United States and Spain. France in 1762 transfers Louisiana west of the Mississippi to Spain, and at the same time conveys the eastern portion of it, exclusive of New Orleans, to Great Britain. Twenty one years after, that is in 1783, Great Britain cedes her part to Spain, who thus becomes possessed of the entire province; one portion by direct cession from France, and the residue by indirect cession. Spain then held the whole of Louisiana _under_ France, and in virtue of the title of France. The whole moved or passed from France to her. When, therefore, in this state of things, she says, in the Treaty of St. Ildefonso, that she retrocedes the province to France, can a doubt exist that she parts with, and gives back to France, the entire colony? To preclude the possibility of such a doubt, she adds, that she restores it, not in a mutilated condition, but in that precise condition in which France had, and she herself possessed it. Having thus shown, as I conceive, a clear right in the United States to West Florida, I proceed to inquire if the proclamation of the President directing the occupation of property, which is thus fairly acquired by solemn treaty, be an unauthorized measure of war and of legislation, as has been contended. The act of October, 1803, contains two sections, by one of which the President is authorized to occupy the territories ceded to us by France in the April preceding. The other empowers the President to establish a provisional government there. The first section is unlimited in its duration; the other is restricted to the expiration of the then session of Congress. The act, therefore, of March, 1804, declaring that the previous act of October should continue in force until the first of October, 1804, is applicable to the second and not the first section, and was intended to continue the provisional government of the President. By the act of the 24th of February, 1804, for laying duties on goods imported into the ceded territories, the President is empowered, _whenever he deems it expedient_, to erect the bay and river Mobile, &c., into a separate district, and to establish therein a port of entry and delivery. By this same act the Orleans Territory is laid off, and its boundaries are so defined as to comprehend West Florida. By other acts the President is authorized to remove by force, under certain circumstances, persons settling or taking possession of lands ceded to the United States. These laws furnish a legislative construction of the treaty, correspondent with that given by the Executive, and they vest in this branch of the Government indisputably a power to take possession of the country, whenever it might be proper in his discretion. The President has not, therefore, violated the constitution, and usurped the war-making power, but he would have violated that provision which requires him to see that the laws are faithfully executed, if he had longer forborne to act. It is urged that he has assumed powers belonging to Congress in undertaking to annex the portion of West Florida between the Mississippi and the Perdido to the Orleans Territory. But Congress, as has been shown, has already made this annexation the limits of the Orleans Territory, as prescribed by Congress, comprehending the country in question. The President, by his proclamation, has not made law, but has merely declared to the people of West Florida what the law is. This is the office of a proclamation, and it was highly proper that the people of that Territory should be thus notified. By the act of occupying the country, the Government _de facto_, whether of Spain, or the revolutionists, ceased to exist; and the laws of the Orleans Territory, applicable to the country, by operation and force of law, attached to it. But this was a state of things which the people might not know, and every dictate of justice and humanity required, therefore, should be proclaimed. I consider the bill before us merely in the light of a declaratory law. Never could a more propitious moment present itself for the exercise of the discretionary power placed in the President of the United States, and, had he failed to embrace it, he would have been criminally inattentive to the dearest interests of this country. It cannot be too often repeated, that if Cuba on the one hand, and Florida on the other, are in the possession of a foreign maritime power, the immense country belonging to the United States, watered by streams discharging themselves into the Gulf of Mexico--that is, one-third, nay more than two-thirds of the United States, comprehending Louisiana, is placed at the mercy of that power. The possession of Florida is a guarantee absolutely necessary to the enjoyment of the navigation of those streams. The gentleman from Delaware anticipates the most direful consequences from the occupation of the country. He supposes a sally from a Spanish garrison upon the American forces, and asks what is to be done? We attempt a peaceful possession of the country, to which we are fairly entitled. If the wrongful occupants under the authority of Spain assail our troops, I trust they will retrieve the lost honor of the nation in the case of the Chesapeake. Suppose an attack upon any portion of the American army within the acknowledged limits of the United States by a Spanish force? In such event there would exist but a single honorable and manly course. The gentleman conceives it ungenerous that we should at this moment, when Spain is encompassed and pressed on all sides by the immense power of her enemy, occupy West Florida. Shall we sit by, passive spectators, and witness the interesting transactions in that country--transactions which tend to jeopardize, in the most imminent degree, our rights, without interference? Are you prepared to see a foreign power seize what belongs to us? I have heard in the most credible manner that, about the period when the President took his measures in relation to that country, the agents of a foreign power were intriguing with the people there to induce them to come under his dominion. Whether this be the fact or not, it cannot be doubted, that if you neglect the present auspicious moment--if you reject the proffered boon, some other nation, profiting by your errors, will seize the occasion to get a fatal footing in your southern frontier. I have no hesitation in saying, that if a parent country will not or cannot maintain its authority in a colony adjacent to us, and there exists in it a state of misrule and disorder, menacing our peace, and if moreover such colony, by passing into the hands of any other power, would become dangerous to the integrity of the Union, and manifestly tend to the subversion of our laws; we have a right, upon eternal principles of self-preservation, to lay hold of it. This principle alone, independent of any title, would warrant our occupation of West Florida. But it is not necessary to resort to it, our title being in my judgment incontestably good. MONDAY, December 31. JOHN TAYLOR, appointed a Senator by the Legislature of the State of South Carolina, in place of Thomas Sumter, resigned, produced his credentials which were read; and the oath prescribed by law having been administered to him, he took his seat in the Senate. WEDNESDAY, January 2, 1811. ANDREW GREGG, from the State of Pennsylvania, took his seat in the Senate. MONDAY, January 7. JAMES A. BAYARD, from the State of Delaware, took his seat in the Senate. TUESDAY, January 8. THOMAS WORTHINGTON, appointed a Senator by the Legislature of the State of Ohio, in place of RETURN JONATHAN MEIGS, resigned, produced his credentials, which were read; and the oath prescribed by law having been administered to him, he took his seat in the Senate. MONDAY, January 14. JAMES TURNER, from the State of North Carolina, took his seat in the Senate. TUESDAY, January 29. _Mississippi Territory._ Mr. ANDERSON presented the memorial of the Legislative Council and House of Representatives of the Mississippi Territory, praying that the said Territory may be admitted as a State into the Union, upon the footing of the original States, and the memorial was read, and referred to a select committee to consider and report thereon by bill or otherwise; and Messrs. ANDERSON, BAYARD, and DANA, were appointed the committee. The memorial is as follows: _To the honorable the Senate and House of Representatives of the United States in Congress assembled_: The memorial unanimously adopted, of the Legislative Council and House of Representatives of Mississippi Territory, in General Assembly convened, respectfully states, That by the articles of agreement and cession between the United States and the State of Georgia, an act for the amicable settlement of limits with the State of Georgia, &c., and an act supplemental thereto, the Government of the Mississippi Territory was organized and established, and "all and singular the rights, privileges, and advantages, granted to the people of the United States, northwest of the river Ohio, by an ordinance of the 13th day of July, one thousand seven hundred and eighty-seven, were extended to the people of the Mississippi Territory:" And by the said articles of agreement and cession, it is provided "That the Territory thus ceded shall form a State, and be admitted as such into the Union as soon as it shall contain sixty thousand free inhabitants, or at an earlier period, if Congress shall think it expedient." Your memorialists state, that although they do not pretend to have the number required by the said articles of agreement and cession, and the ordinance to entitle our Territory as a matter of right into the Union, upon the footing of one of the original States; yet, we hope that our numbers (as will appear by the census now taken under a law of the United States) are sufficiently respectable to induce your honorable body to admit the Mississippi Territory into the Union, as a matter of expediency. Your memorialists conceive it unnecessary to detail the many reasons which might be adduced in support of their petition, but think it sufficient to say, that, as the people of this Territory are able to bear the expenses of a State Government with convenience to themselves, and at the same time will relieve the Government of the United States from the cares and expenses incident to the Territorial form of government; and that whatever views the form of government (under which they have, perhaps, not very patiently lived) for about twelve years, was formed, it is found from experience, to be unfriendly to republicanism; and is such a one as every American in heart is solicitous to be relieved from. We, therefore, pray your honorable body to pass a law authorizing a convention to be called, for the purpose of forming a constitution and State Government in the Mississippi Territory, to be admitted into the Union upon the footing of the original States. Your memorialists, from a knowledge of your indulgence to the people of the Territories northwest of the river Ohio, when in a situation similar to their own, are sanguine in their expectations, that your honorable body will grant to them the prayer of their petition. And they will ever pray, &c. F. L. CLAIBORNE, _Speaker of the House._ ALEX. MONTGOMERY, _President of Legislative Council._ Attest: WM. C. WINSTON, _Clerk House of Reps. M. T._ WEDNESDAY, January 30. _Territory of Orleans._ The Senate took into consideration the amendment proposed yesterday, by Mr. DANA, to the bill, entitled "An act to enable the people of the Territory of New Orleans to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes:" and, on motion, by Mr. CLAY, it was agreed to divide the question; and, on the question to agree to the first division of the amendment, to wit: _Provided_, That this act shall not be understood to admit such State into the Union, as aforesaid, unless each of the States shall consent to the same: It was determined in the negative--yeas 10, nays 18, as follows: YEAS.--Messrs. Bradley, Champlin, Dana, German, Gilman, Goodrich, Horsey, Lloyd, Pickering, and Reed. NAYS.--Messrs. Campbell, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Leib, Mathewson, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington. On the question to agree to the second division of the amendment, to wit: _Provided_, That this act shall not be understood to admit such State into the Union as aforesaid, unless there shall be a constitutional amendment empowering the Congress to admit into the Union new States formed beyond the boundaries of the United States, as known and understood at the time of establishing the Constitution for the United States: It was determined in the negative--yeas 8, nays 17, as follows: YEAS.--Messrs. Champlin, Dana, German, Gilman, Goodrich, Lloyd, Pickering, and Reed. NAYS.--Messrs. Campbell, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Leib, Mathewson, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington. On motion, by Mr. BRADLEY, to postpone the further consideration of the bill to the second Monday in February next, it was determined in the negative. On the question, Shall the bill be read a third time as amended? it was determined in the affirmative--yeas 17, nays 10, as follows: YEAS.--Messrs. Brent, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Mathewson, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington. NAYS.--Messrs. Bradley, Champlin, Dana, German, Gilman, Goodrich, Horsey, Lloyd, Pickering, and Reed. FRIDAY, February 1. The credentials of JAMES A. BAYARD, appointed a Senator by the Legislature of the State of Delaware, for the term of six years from the third day of March next: and of WILLIAM H. CRAWFORD, appointed a Senator by the Legislature of the State of Georgia, for the term of six years from the third day of March next, were severally read, and ordered to lie on file. WEDNESDAY, February 6. Mr. BRADLEY presented the petition of Charlotte Hazen, relict of the late Brigadier General Moses Hazen, praying a grant of land may be made to her, as a Canadian refugee, or that a small addition, in lieu thereof, may be added to her present pension from Congress, for reasons stated at large in the petition; which was read, and referred to a select committee, to consider and report thereon by bill or otherwise; and Messrs. BRADLEY, FRANKLIN, and GERMAN, were appointed the committee. MONDAY, February 11. _Bank of the United States._ The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th day of February, one thousand seven hundred and ninety-one. Mr. ANDERSON said that having been a member of the committee who reported the bill before the Senate, and not feeling himself at liberty to oppose the introduction of the report, yet, thinking it might be advisable to try the principle before they proceeded to discuss the details, he should move to strike out the first section of the bill. He would barely observe that, was this not a question which was generally understood, on which not only every member of this House, but every citizen of the United States had made up his mind, he should feel himself bound to offer reasons in support of the motion; but, inasmuch as it was a question which every gentleman had doubtless decided in his own mind, he felt unwilling to take up any more of the attention of the Senate, especially so late in the session, when there was so much business of importance before them which required to be acted on. Mr. CRAWFORD said that he should proceed, though reluctantly, to explain the reasons of the committee for reporting the bill, which is now under consideration. After the most minute examination of the constitution, the majority of that committee were decidedly of opinion that the Congress of the United States were clearly invested with power to pass such a bill. The object of the constitution was twofold: 1st, the delegation of certain general powers, of a national nature, to the Government of the United States; and 2d, the limitation or restriction of the State sovereignties. Upon the most thorough examination of this instrument, I am induced to believe, that many of the various constructions given to it are the result of a belief that it is absolutely perfect. It has become so extremely fashionable to eulogize this constitution, whether the object of the eulogist is the extension or contraction of the powers of the Government, that whenever its eulogium is pronounced, I feel an involuntary apprehension of mischief. Upon the faith of this imputed perfection, it has been declared to be inconsistent with the entire spirit and character of this instrument, to suppose that after it has given a general power it should afterwards delegate a specific power fairly comprehended within the general power. A rational analysis of the constitution will refute in the most demonstrative manner this idea of its perfection. This analysis may excite unpleasant sensations; it may assail honest prejudices; for there can be no doubt that honest prejudices frequently exist, and are many times perfectly innocent. But when these prejudices tend to destroy even the object of their affection, it is essentially necessary that they should be eradicated. In the present case if there be any who, under the conviction that the constitution is perfect, are disposed to give it a construction that will render it wholly imbecile, the public welfare requires that the veil should be rent, and that its imperfection should be disclosed to public view. By this disclosure it will cease to be the object of adoration, but it will nevertheless be entitled to our warmest attachment. The 8th section of the 1st article of the constitution contains among others the following grant of powers, viz: to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to raise and support armies; to provide and maintain a navy; to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; to establish post-offices and post roads. This selection contains five grants of general power. Under the power to coin money it is conceived that Congress would have a right to provide for the punishment of counterfeiting the money after it was coined, and that this power is fairly incidental to, and comprehended in, the general power. The power to raise armies and provide and maintain a navy comprehends, beyond the possibility of doubt, the right to make rules for the government and regulation of the land and naval forces; and yet in these three cases, the constitution, after making the grant of general power, delegates specifically the powers which are fairly comprehended within the general power. If this, however, should be denied, the construction which has been uniformly given to the remaining powers which have been selected, will establish the fact beyond the power of contradiction. Under the power to regulate commerce, Congress has exercised the power of erecting light-houses, as incident to that power, and fairly comprehended within it. Under the power to establish post-offices, and post roads, Congress has provided for the punishment of offences against the Post-Office Department. If the Congress can exercise an incidental power not granted in one case, it can in all cases of a similar kind. But it is said, that the enumeration of certain powers excludes all other powers not enumerated. This is true so far as original substantive grants of power are concerned, but it is not true when applied to express grants of power, which are strictly incidental to some original and substantive grant of power. If it were true in relation to them, Congress could not pass a law to punish offences against the Post-Office Establishment, because the constitution has expressly given the power to punish offences against the current coin, and as it has given the power to punish offences committed against that grant of general power, and has withheld it in relation to the power to establish post-offices and post roads. Congress cannot, according to this rule of construction, so warmly contended for, pass any law to provide for the punishment of such offences. The power to make rules for the regulation and government of the land and naval forces, I have shown to be strictly incidental to the power to raise armies, and provide and maintain navies; but, according to this rule of construction, all incidental powers are excluded except the few which are enumerated, which would exclude from all claim to constitutionality, nearly one-half of your laws, and, what is still more to be deprecated, would render your constitution equally imbecile with the old articles of confederation. When we come to examine the 4th article, the absurdity of this rule of construction, and also of the idea of perfection which has been attributed to the constitution, will be equally manifest. This article appears to be of a miscellaneous character and very similar to the codicil of a will. The first article provides for the organization of Congress; defines its powers; prescribes limitations upon the powers previously granted; and sets metes and bounds to the authority of the State Governments. The second article provides for the organization of the Executive Department, and defines its power and duty. The 3d article defines the tenure by which the persons in whom the judicial power may be vested shall hold their offices, and prescribes the extent of their power and jurisdiction. These three articles provide for the three great departments of Government called into existence by the constitution, but some other provisions just then occur, which ought to have been included in one or the other of the preceding articles, and these provisions are incorporated and compose the 4th article. The 1st section of it declares, that "full faith and credit shall be given in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." In the second section it declares, that a person, charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. A similar provision is contained in the same section, relative to fugitives who are bound to labor, by the laws of any State. In the first case which has been selected, express authority has been given to Congress, to prescribe the manner in which the records, &c., should be proved, and also the effect thereof, but in the other two, no authority is given to Congress, and yet the bare inspection of the three cases will prove that the interference of Congress is less necessary in the first than in the two remaining cases. A record must always be proved by itself, because it is the highest evidence of which the case admits. The effect of a record ought to depend upon the laws of the State of which it is a record, and, therefore, the power to prescribe the effect of a record was wholly unnecessary, and has been so held by Congress--no law having been passed to prescribe the effect of a record. In the second case there seems to be some apparent reason for passing a law to ascertain the officer upon whom the demand is to be made; what evidence of the identity of the person demanded and of the guilt of the party charged must be produced before the obligation to deliver shall be complete. The same apparent reason exists for the passage of a law relative to fugitives from labor. According, however, to the rule of construction contended for, Congress cannot pass any law to carry the constitution into effect, in the two last cases selected, because express power has been given in the first and is withheld in the two last. Congress has nevertheless passed laws to carry those provisions into effect, and this exercise of power has never been complained of by the people or the States. Mr. President, it is contended by those who are opposed to the passage of this bill, that Congress can exercise no power by application, and yet it is admitted, nay, even asserted, that Congress would have power to pass all laws necessary to carry the constitution into effect, whether it had given or withheld the power which is contained in the following paragraph of the 8th section of the 1st article: "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the Government of the United States or in any department or officer thereof." If this part of the constitution really confers no power, it at least, according to this opinion, strips it of that attribute of perfection which has by these gentlemen been ascribed to it. But, sir, this is not the fact. It does confer power of the most substantial and salutary nature. Let us, sir, take a view of the constitution upon the supposition that no power is vested in the Government by this clause, and see how the exclusion of power by implication can be reconciled to the most important acts of the Government. The constitution has expressly given Congress power "to constitute tribunals inferior to the Supreme Court," but it has nowhere expressly given the power to constitute a supreme court. In the 3d article it is said, "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The discretion, which is here given to Congress, is confined to the inferior courts, which it may from time to time ordain and establish, and not to the Supreme Court. In the discussion which took place upon the bill to repeal the judicial system of the United States in the year 1802, this distinction is strongly insisted upon by the advocates for the repeal. The Supreme Court was said to be the creature of the constitution, and, therefore, intangible, but that Congress, possessing a discretionary power to create or not to create inferior tribunals, had the same discretionary power to abolish them whenever it was expedient. But if even the discretionary power here vested does extend to the Supreme Court, yet the power of Congress to establish that court must rest upon implication, and upon implication alone. Under the authority to establish tribunals inferior to the Supreme Court, the power to establish a Supreme Court would, according to my ideas, be vested in Congress by implication. And, sir, it is only vested by implication, even if the declaration, that Congress shall have power to pass all laws necessary and proper to carry into effect the power vested in any department or officer of the Government should be held to be an operative grant. Under this grant, Congress can pass laws to carry into effect the powers vested in the judicial department? What are the powers vested in this department. That it shall exercise jurisdiction in all cases in law and equity arising under this constitution, &c., in all cases affecting ambassadors, &c., but the power to create the department and to carry into effect the powers given to or vested in that department, are very different things. The power to create the Supreme Court cannot be expressly granted in the power to pass all laws necessary and proper to carry into effect the powers vested in that court, but must, as I have endeavored to prove, be derived from implication. Let me explain my understanding of a power which exists by implication, by an example which will be comprehended by all who hear me. In a devise, an estate is granted to A, after the death of B, and no express disposition is made of the estate during the life of A; in that case A is said to have an estate for life, by implication, in the property so devised. So when the constitution gives the right to create tribunals inferior to the Supreme Court, the right to create the Supreme is vested in Congress by implication. Shall we after this be told that Congress cannot constitutionally exercise any right by implication? By the exercise of a right derived only from implication, Congress has organized a Supreme Court, and then, as incidental to power, existing only by implication, it has passed laws to punish offences against the law by which the court has been created and organized. Sir, the right of the Government to accept of the District of Columbia, exists only by implication. The right of the Government to purchase or accept of places for the erection of forts, magazines, arsenals, and dockyards, exists only by implication, and yet no man in the nation, so far as my knowledge extends, has complained of the exercise of those implied powers, as an unconstitutional usurpation of power. The right to purchase or except of places for the erection of light-houses, as well as the right to erect and support light-houses, must be derived by implication alone, if any such right exists. The clause in the constitution which gives Congress the power "to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of Government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings," certainly gives no express power to accept or purchase any of the places, destined for the uses therein specified. The only power expressly given in this clause is that of exercising exclusive legislation in such places; the right to accept or purchase must be derived by implication from this clause, or it must be shown to be comprehended in or incidental to some other power expressly delegated by the constitution. I shall now attempt to show, that according to the construction which has been given to other parts of this constitution, Congress has the right to incorporate a bank to enable it to manage the fiscal concerns of the nation. If this can be done, and if it can also be shown that the correctness of such construction has never excited murmur or complaint--that it has not even been questioned, I shall have accomplished every thing which it will be incumbent on me to prove, to justify the passage of the bill upon your table. The power to lay and collect taxes, duties, imposts and excises, together with the power to pass all laws which may be necessary and proper for carrying into effect the foregoing powers, when tested by the same rule of construction which has been applied to other parts of the constitution, fairly invests Congress with the power to create a bank. Under the power to regulate commerce, Congress exercises the right of building and supporting light-houses. What do we understand by regulating commerce? Where do you expect to find regulations of commerce? Will any man look for them any where else than in your treaties with foreign nations, and in your statutes regulating your custom-houses and custom-house officers? What are the reasons for vesting Congress with the right to regulate commerce with foreign nations, and among the several States? The commerce of a nation is a matter of the greatest importance in all civilized countries. It depends upon compacts with other nations, and whether they are beneficial or prejudicial depends not so much on the reciprocal interest of nations as upon their capacity to defend their rights and redress their wrongs. It was therefore highly important that the right to regulate commerce with foreign nations should be vested in the National Government. If the regulation of commerce among the several States had been left with the States, a multiplicity of conflicting regulations would have been the consequence. Endless collisions would have been created, and that harmony and good neighborhood, so essential between the members of a Federal Republic, would have been wholly unattainable. The best interest of the community, therefore, imperiously required, that this power should be delegated to Congress. Not so of light-houses. The interest of the States would have induced them to erect light-houses, where they were necessary, and when erected they would have been equally beneficial to their own vessels, the vessels of their sister States, and of foreign nations. The performance of this duty could have been most safely confided to the States. They were better informed of the situations in which they ought to be erected than Congress could possibly be, and could enforce the execution of such regulations as might be necessary to make them useful. How then has it happened that Congress has taken upon itself the right to erect light-houses, under their general power to regulate commerce? I have heard and seen in the public prints a great deal of unintelligible jargon about the incidentality of a law to the power delegated and intended to be executed by it, and of its relation to the end which is to be accomplished by its exercise, which I acknowledge I do not clearly and distinctly comprehend, and must therefore be excused from answering. I speak now of the public newspapers, to which I am compelled to resort to ascertain the objections which are made to this measure, as gentlemen have persevered in refusing to assign the reasons which have induced them to oppose the passage of the bill. But, sir, I can clearly comprehend that the right to erect light-houses is not incidental to the power of regulating commerce, unless every thing is incidental to that power which tends to facilitate and promote the prosperity of commerce. It is contended that under the power to lay and collect taxes, imposts, and duties, you can pass all laws necessary for that purpose, but they must be laws to lay and collect taxes, imposts, and duties, and not laws which tend to promote the collection of taxes. A law to erect light-houses is no more a law to regulate commerce, than a law creating a bank is a law to collect taxes, imposts and duties. But the erection of light-houses tends to facilitate and promote the security and prosperity of commerce, and in an equal degree the erection of a bank tends to facilitate and insure the collection, safe-keeping, and transmission of your revenue. If, by this rule of construction, which is applied to light-houses, but denied to the bank, Congress can, as incidental to the power to regulate commerce, erect light-houses, it will be easy to show that the same right may be exercised, as incidental to the power of laying and collecting duties and imposts. Duties cannot be collected, unless vessels importing dutiable merchandise arrive in port; whatever, therefore, tends to secure their safe arrival may be exercised under the general power; the erection of light-houses does facilitate the safe arrival of vessels in port, and Congress therefore can exercise this right as incidental to the power to lay imposts and duties. But it is said the advocates of the bank differ among themselves in fixing upon the general power to which the right to create a bank is incidental, and that this difference proves that there is no incidentality, to use a favorite expression, between that and any one of the enumerated general powers. The same reason can be urged, with equal force, against the constitutionality of every law for the erection of light-houses. Let the advocates for this doctrine lay their finger upon the power to which the right of erecting light-houses is incidental. It can be derived with as much apparent plausibility and reason from the right to lay duties, as from the right to regulate commerce. Who is there, now, in this body who has not voted for the erection of a light-house? And no man who reads one of these will believe it to be a regulation of commerce. And no man in the nation, so far as my knowledge extends, has ever complained of the exercise of this power. The right to erect light-houses is exercised, because the commerce of the nation, or the collection of duties, is greatly facilitated by that means; and, sir, the right to create a bank is exercised because the collection of your revenue, and the safe-keeping and easy and speedy transmission of your public money is not simply facilitated, but because these important objects are more perfectly secured by the erection of a bank than they can be by any other means in the power of human imagination to devise. We say, therefore, in the words of the constitution, that a bank is necessary and proper, to enable the Government to carry into complete effect the right to lay and collect taxes, imposts, duties, and excises. We do not say that the existence of the Government absolutely depends upon the operations of a bank, but that a national bank enables the Government to manage its fiscal concerns more advantageously than it could do by any other means. The terms necessary and proper, according to the construction given to every part of the constitution, imposes no limitation upon the powers previously delegated. If these words had been omitted in the clause giving authority to pass laws to carry into execution the powers vested by the constitution in the National Government, still Congress would have been bound to pass laws which were necessary and proper, and not such as were unnecessary and improper. Every legislative body, every person invested with power of any kind, is morally bound to use only those means which are necessary and proper for the correct execution of the powers delegated to them. But it is contended, that if a bank is necessary and proper for the management of the fiscal concerns of the nation, yet Congress has no power to incorporate one, because there are State banks which may be resorted to. No person who has undertaken to discuss this question has, as far as my knowledge extends, ventured to declare that a bank is not necessary. Every man admits, directly or indirectly, the necessity of resorting to banks of some kind. This admission is at least an apparent abandonment of the constitutional objection; for, if a bank is necessary and proper, then have Congress the constitutional right to erect a bank. But this is denied. It is contended that this idea rests alone upon the presumption that the Government of the United States is wholly independent of the State governments, which is not the fact; that this very law is dependent upon the State courts for its execution. This is certainly not the fact. The courts of the United States have decided, in the most solemn manner, that they have cognizance of all cases affecting the Bank of the United States. Sir, it is true that the Government of the United States is dependent upon the State governments for its organization. Members of both Houses of Congress, and the President of the United States, are chosen by the State governments, or under the authority of their laws. But it is equally true, that wherever the constitution confides to the State governments the right to perform any act in relation to the Federal Government, it imposes the most solemn obligation upon them to perform the act. The Constitution of the United States, as to these particular acts, is the constitution of the several States, and their functionaries are accordingly sworn to support it. Can it, then, be seriously contended, that because the constitution has in some cases made the Government of the United States dependent upon the State governments, in all which cases it has imposed the most solemn obligations upon them to act, that it will be necessary and proper for Congress to make itself dependent upon them in cases where no such obligation is imposed? The constitution has defined all the cases where this Government ought to be dependent upon that of the States; and it would be unwise and improvident for us to multiply these cases by legislative acts, especially where we have no power to compel them to perform the act, for which we have made ourselves their dependents. In forming a permanent system of revenue, it would be unwise in Congress to rely, for its collection and transmission from one extreme of this extensive empire to the other, upon any accidental circumstance, wholly beyond their power or control. There are State banks in almost every State in the Union, but their existence is wholly independent of this Government, and their dissolution is equally so. The Secretary of the Treasury has informed you that he conceives a bank is necessary to the legitimate exercise of the powers vested by the constitution in the Government. I know, sir, that the testimony of this officer will not be very highly estimated by several honorable members of this body. I am aware that this opinion has subjected him, and the committee also, to the most invidious aspersions; but, sir, the situation of that officer, independent of his immense talents, enables him to form a more correct opinion than any other man in the nation of the degree of necessity which exists at the present time for a national bank, to enable the Government to manage its fiscal operations. He has been ten years at the head of your Treasury; he is thoroughly acquainted with the influence of the bank upon your revenue system; and he has, when called upon, declared that a bank is necessary to the proper exercise of the legitimate powers of the Government. His testimony is entitled to great weight in the decision of this question, at least with those gentlemen who have no knowledge of the practical effects of the operations of the bank in the collection, safe-keeping, and transmission of your revenue. In the selection of means to carry any of your constitutional powers into effect, you must exercise a sound discretion; acting under its influence, you will discover that what is proper at one time may be extremely unfit and improper at another. The original powers granted to the Government by the constitution can never change with the varying circumstances of the country, but the means by which those powers are to be carried into effect must necessarily vary with the varying state and circumstances of the nation. We are, when acting to-day, not to inquire what means were necessary and proper twenty years ago, not what were necessary and proper at the organization of the Government, but our inquiry must be, what means are necessary and proper this day. The constitution, in relation to the means by which its powers are to be executed, is one eternal _now_. The state of things now, the precise point of time when we are called upon to act, must determine our choice in the selection of means to execute the delegated powers. Mr. LLOYD.--Mr. President: This is indeed, sir, an up-hill, wind-mill sort of warfare--a novel mode of legislative proceeding. That a bill should be brought in on a very important subject which has been long under consideration, and that a gentleman should move to strike out the first section of the bill, which comprises all its vitality, (for it is the first section which provides for the continuance of the bank,) and should be supported in it, without deigning to assign any other reasons than may be derived from newspaper publications, which are so crude and voluminous that not one man out of ten will so far misspend his time as to take the trouble to read them, is indeed extraordinary. Still, if gentlemen choose to adopt this dumb sort of legislation, and are determined to take the question without offering any arguments in support of their opinions, I certainly should not have interfered with their wishes, had I not been a member of the committee who had reported the bill, who had heard the testimony offered by two very respectable delegations from Philadelphia; one from the master manufacturers and mechanics of the city, and the other from the merchants; and had I not taken minutes of this testimony, which I find it is expected from me that I should relate to the Senate. Sir, I consider the motion to strike out, now under consideration, as going to the entire destruction of the bill, without any reference to its details or modifications; it therefore appears to me in order, to take into consideration only the material principle of the bill; that is, whether it be proper that the charter of the bank should be renewed on any terms whatever, let those terms be what they may. Sir, it is admitted by the Secretary of the Treasury, in his communications to Congress, that the concerns of this bank have been "skilfully and wisely managed," that the bank has made a very limited and moderate use of the public moneys deposited with it; and that it has greatly facilitated the operations of Government by the safe-keeping and transmission of the public moneys. It has at all times met the wishes of the Government in making loans. It has done this even at six per cent., while the Government have been obliged, in one instance, for a considerable amount to pay eight per cent. to other persons for the loans obtained from them. It is admitted, sir, that the bank, at the request of the Treasury Department, has established branches for the purpose of facilitating the operations of the Government at places where such establishments could not but be inconvenient to them in point of management, and disadvantageous in point of profit. I allude more particularly, sir, to the branches of the bank which has been established at New Orleans and at Washington. We have been told this session, sir, by a gentleman from Maryland, (Mr. SMITH,) that the Territory of Orleans is a very wealthy one, that it probably contains a greater number of rich inhabitants, for its population, than any other district in the Union. Sir, if this be the fact, of whom does this wealthy population consist? Not of the inhabitants, but of the planters; men who are not borrowers of the bank, who, when they realize the sales of their produce, invest the surplus proceeds of it beyond their expenditure in the funds, or in the acquisition of new lands, or in the purchase of an additional number of negroes. Sir, it is notorious, that from the recent possession by the United States of Louisiana, and the certainty that New Orleans must soon be the emporium of an immense western commerce, that city has become more the resort of the young, the adventurous, the enterprising and the rash among the mercantile men of our country, than any other city in the Union; and it is obvious, sir, in proportion as the borrowers from a bank consist of persons of this description, in the same proportion must the circumstances of such bank be unsound; and without possessing any particular knowledge whatever on the state of this bank, if the collections of its debts are speedily made, I would not make the purchase at a discount of twenty-five per cent. from the nominal amount of them. Sir, we can judge with more accuracy when we come nearer home. What is the state of the bank in this city? What the ability of its debtors to meet their engagements? It is stated the branch has a loan out here of four hundred thousand dollars. Where is the navigation?--where the wealthy merchants?--where are the opulent tradesmen?--the extensive manufacturers, to refund this money, when they are called on to do it? Sir, they are not to be found; they do not exist here; there are but very few opulent men in the city, and those are either not borrowers of the bank, or not borrowers to an amount of any importance. Where, then, is the money to be found, or what has been done with it? It has probably been taken out of the Bank of the United States to build up the five or six District banks which you have chartered the present session; to furnish the means of erecting the fifty or sixty brick houses which we are told have made their appearance during the last Summer; to encourage speculations in city lots, and to enable the proprietors to progress with the half-finished canal which nearly adjoins us. Well, sir, if the bank promptly calls in its loan of four hundred thousand dollars, will the debtors be enabled to meet their payments? Can they sell these lots, these brick houses, these canal shares? No, sir, in such a state of things they could find no purchasers, they could nearly as well create a world as to furnish the money; and if the bank is to stop, and the payment of this debt be speedily coerced, I would not give two hundred thousand dollars for the whole of it. In addition to this, I shall show presently, from testimony which cannot be controverted, that the conduct of the Bank of the United States, or its directors, or rather the stockholders, whose agents they are, in addition to being wise and skilful, and moderate, as the Secretary of the Treasury states them to have been, that they have also been honorable, and liberal, and impartial; and if, in addition to this, it be proved that the bank has, in every instance where it had the ability to do it, met the wishes of the Government, and to facilitate its views in the security and collection of the revenue, it has also established branches where it must have been obviously and palpably to the disadvantage of the bank to do it--if it has furnished capitals for the extension of our commerce, if it has provided means for the establishment of important manufactories, if it has had a tendency to raise the price of our domestic produce, and has thus encouraged industry, and improved and embellished the interior of the country--it would seem pretty strongly to follow, that if it be expedient to preserve the existence of an institution similar to this, then these gentlemen, on the score of merit, added to the experience of twenty years' successful operation, have a fair claim on the Government for a preference in favor of that which is already in operation. I am aware, sir, that it may be stated in opposition to this claim, that these stockholders have enjoyed a boon for twenty years from which others of their fellow-citizens have been deprived, except on such terms as the sellers of shares chose to prescribe; that the charter expires by its own limitation, and that beyond this period they have no right to expect any thing which may not arise from the interest and convenience of the Government. I admit, sir, there is considerable strength in these objections. The exclusive right contained in the charter ever appeared to me as furnishing the most solid constitutional objection against the bank. The creation of monopolies; the granting of exclusive privileges, except so far as to secure to the authors of useful inventions the benefit of their discoveries; the tying up of the hands of the Legislature, and depriving itself of the power of according to a set of citizens, who may come into legal existence to-morrow, or ten years hence, what it had given to another; ever appeared to me hostile to the genius and spirit of the people of the United States, and of all their institutions. Highly then, sir, as I am induced to think of the conduct of this bank, from the best evidence I can obtain, still, from the considerations I have just mentioned, did the question now before us simply affect the stockholders, I should certainly not trouble the Senate with any remarks in reference to it, and should sit down in entire acquiescence, whether the prayer of their petition for the renewal of the charter of the bank were granted or rejected. Sir, before quitting this idea of constitutional objection, permit me to make one or two brief remarks in regard to it. It is impossible for the ingenuity of man to devise any written system of government, which, after a lapse of time, extension of empire, or change of circumstances, shall be able to carry its own provisions into operation--hence, sir, the indispensable necessity of implied or resulting powers, and hence the provision in the constitution that the Government should exercise such additional powers as were necessary to carry those that had been delegated into effect. Sir, if this country goes on increasing and extending, in the ratio it has done, it is not impossible that hereafter, to provide for all the new cases that may rise under this new state of things, the defined powers may prove only a text, and the implied or resulting powers may furnish the sermon to it. Permit me, sir, to put one question on this head, in addition to those so ably, and to my view, unanswerably put yesterday by the honorable gentleman from Georgia, (Mr. CRAWFORD.) Whence, sir, do you get the right, whence do you derive the powers to erect custom-houses in the maritime districts of the United States? To attach to them ten, fifteen, or twenty custom-house officers; and clothe these men with authority to invade the domicile, to break into the dwelling-house of perhaps an innocent citizen? Whence do you get it, sir, except as an implied power resulting from the authority given in the constitution "to lay and collect taxes, duties, imposts, and excises?" If, under this authority, you can erect these custom-houses and create this municipal, fiscal, inquisitorial _gens d'armerie_, with liberty to violate the rights of the citizen, to break into his castle at midnight, without even a form of warrant, on a plausible appearance of probability, or probable cause of suspicion of his secreting smuggled goods, which the event may prove to be unfounded--and it will be recollected that a majority of Congress voted for the grant of this power in its most offensive form, when two years since they voted for the act enforcing the embargo--I say, sir, if under this general power to collect duties, you can erect the establishment and give the offensive power just mentioned, can you not, with the concurrence even of the citizens, adopt another more mild and useful mode, and create an establishment for the collection and safe-keeping of the revenue, and place it under the direction of ten or twelve directors, and christen it an office of discount and deposit, or of collection and payment, as you like best? And can you not, when you have thus created it, give to the directors a power, which perhaps they would have without your grant, to receive and keep the cash of those who choose to place it with them and to loan them money at the legal rate of interest, and in some places, as at New York, at nearly fifteen per cent. above the legal rate of interest? If you can do this, then you have your bank established, sir--and, most assuredly, if you can do one of these things you can do the other. Sir, the constitutional objection to this bank, on the ground that Congress had not the power to grant an act of incorporation, has ever appeared to me the most unsound and untenable. Still gentlemen of intelligence and integrity, who have thought long and deeply on the subject, think differently from me: and I feel bound to respect their opinions, however opposed they may be to my own. Yet, sir, I will venture to predict, without feeling any anxiety for the fate of the prophecy, that should this bank be suffered to run down, such will be the state of things before this time twelve months, that there are other gentlemen, who at present have constitutional objections, but who have not thought so long and deeply upon them, who will, before that time, receive such a flood of intelligence, as on this head perfectly to dispel their doubts, and quiet their consciences. Sir, I shall now proceed as briefly as may be in my power to state the situation of this bank on the expiration of its charter, and the effects on the community consequent on it. There is now due to the bank from individuals fifteen millions of dollars. These fifteen millions of dollars must be collected--the power of the bank to grant discounts will have ceased, and the duty of the directors must require them to make the collection. Sir, how is this to be done? Whence can the money be obtained? I shall demonstrate to you presently, that already, from an apprehension of a non-renewal of the charter of the bank, business is nearly at a stand--that navigation, real estate, and merchandise are unsalable; and that a man worth one hundred thousand dollars, at the recently rated value of property, and owing ten thousand dollars, must still be utterly unable to meet his engagements. Suppose, sir, this property consists in houses or shipping; suppose his warehouse is full of goods, and he has a large sum placed at his credit in England? If, sir, he can neither sell his ships nor his goods--if he cannot sell his real estate nor scarcely give away his exchange, which hitherto, to men who had money in England, has been a never-failing source of supply in case of need; I say under these circumstances, sir, whatever may be his property, he cannot meet his engagements. Sir, can men thus situated, solvent as they ought to be ten times over, find relief from the State banks? Certainly not, sir. These banks have already gone to the extreme length of their ability; they have always discounted to an amount in proportion to their capital exceeding that of the Bank of the United States, which is incontrovertibly proved by the dividends they have declared, which have at most universally equalled and frequently exceeded those of the Bank of the United States, notwithstanding the advantage enjoyed by the latter from the deposit of public moneys. Sir, so far from having it in their power, in the case of the dissolution of the Bank of the United States, to assist the debtors to that bank in meeting their engagements to it--I affirm the fact, on which I have myself a perfect reliance, that, take the State banks from Boston to Washington, and after paying their debts to the Bank of the United States, they have not, nor do I believe they have had, for six months back, specie enough to pay the debts due to their depositors, and the amount of their bills in circulation. And here I beg it to be observed, that bank bills and bank deposits, or credits, are precisely the same thing--with this difference, that the latter, from the residence in the neighborhood of the banks, and the vigilance of the proprietors, would be the first called for. How idle is it then to expect to obtain relief from banks which have already extended themselves beyond the bounds of prudence, and have not even at present the ability to meet their existing engagements? It might nearly as well be expected, that a man who was already a bankrupt should prop and support his failing neighbor. Sir, much has been recently said of the amount of specie in the United States. Theoretical men have made many and vague conjectures about it, for after all it must rest upon conjecture; some have estimated it at ten millions of dollars--some twelve, some twenty, and some newspaper scribblers at forty millions of dollars. Sir, I do not believe that for the last ten years the United States have at any time been more bare of specie than at the present moment. A few years since, specie flowed in upon us in abundance. This resulted principally from an operation of a very singular and peculiar nature. The Spanish Government, as it was then understood, agreed to pay to France a very large sum of money--many millions of dollars, the precise number I am unable to state, from her possessions in South America. France contracted with a celebrated English banking house, as was said at the time, with either the concurrence or connivance of the English Government, that this money should be obtained through the United States. These bankers, by their agent, contracted with certain American houses, principally I believe in Baltimore, for the importation of this specie from La Vera Cruz into the United States, from whence it was not transmitted in coin to Europe, but invested in adventures in the shipments of produce, the proceeds of which ultimately go into the hands of these bankers in London, or of their friends on the continent, from whom it was finally realized by the French Government, either by drafts from Paris, or remittances to that city. This operation had a trebly favorable effect on the United States--it made fortunes for some of the merchants, it furnished the means of shipments to Europe, and it also provided the funds for adventures to the East Indies and to China. But this contract has now been finished some years; and since that time there has been a constant drain of specie from the country. Where it is in future to be procured from, I know not. Not from South America. Specie is, I believe, protected from exportation there, except to Spain. From Spain we cannot get it--to a great part of what was Spain we have now scarcely any trade. From France it cannot be obtained, for if we can get it there even by license, we are obliged to bring back her produce or manufactures. From England it cannot be imported--it is now made highly penal to attempt to send it out of the kingdom. With South America we have but little trade--hitherto we furnished them with smuggled or licensed European and India goods; but now the markets are flooded with these goods by importations direct from England, and which have been attended with great loss to the shippers. For these reasons, it is difficult to find a vessel sailing from the United States to the Spanish ports in South America. These are among the reasons why the amount of specie now in the country is small, and has for some time past been gradually lessening. Sir, without indulging in vague conjectures, what are the best data we have to form an estimate of the amount of specie in the country? The Bank of the United States has five millions of dollars in its vaults. In Boston there are three State banks--in New York I believe four, Philadelphia four, and Baltimore eight--call these nineteen twenty, and allow on an average one hundred and fifty thousand dollars specie, which probably is as much as they generally possess, and this will make three millions of dollars; this amount, united to the sum in the vaults of the Bank of the United States, gives eight millions of dollars--to which, if you allow two millions of dollars for a loose circulation of specie, you get an aggregate of ten millions of dollars. We are sometimes told of the large sums of money hoarded in our country by individuals--probably there may be some among the German farmers in Pennsylvania--perhaps more in that State than in any other, or all the others in the Union; but still of no great amount--the reputation of a little money possessed in this way easily swells into a large sum. At any rate, let the amount be what it may, in time of distress and mistrust, it would afford no addition to your circulating medium; for it is precisely in times like these, that men who hoard money will lock it up most securely. Sir, the circulation of our country is at present emphatically a paper circulation--very little specie passes in exchange between individuals--it is a circulation bottomed on bank paper and bank credits, amounting perhaps to fifty millions of dollars. And on what, sir, does this circulation rest? It rests upon the ten millions of dollars, if that be the amount of specie in the country, and upon public confidence. The Bank of the United States has fifteen millions of dollars to collect--call it ten, sir--nobody will dispute this--no one will pretend that this bank is not solvent--the remnant of its surplus dividends, and the interest it will have earned, will be sufficient to cover its losses at New Orleans, at Washington, and perhaps elsewhere. In what are these ten millions of dollars to be collected? In bank bills, the credit of which is at least doubtful? No, sir, in specie; and when this is entirely withdrawn from the State banks, and the banks are unable to pay the money for their bills, who does not see that this confidence is instantly destroyed--that the bubble bursts--that floods of paper bills will be poured in upon them, which they will be unable to meet, and which will for a time be as worthless as oak leaves--that the banks themselves must, at least temporarily, become bankrupts, and that a prostration of credit, and all those habits of punctuality which for twenty years, we have been striving so successfully to establish, will inevitably ensue, and, with them, also, there must be suspended the commerce, the industry and manufactures of the country; and a scene of embarrassment and derangement be produced, which has been unexampled in our history. I will now make a very few remarks on the effects which the dissolution of the bank will have on the revenue and fiscal concerns of the country. Can it be supposed, sir, that the source to which will be imputed the distress that will have flowed from this event, will be the first to be thought of to be guarded against a participation of the evils that will result from it, in preference to the claims of the most intimate friends and connections? No, sir, the bonds due to the United States will be collected only at the tail of an execution. But I mean not to press this consideration. Admit, for a moment, that they will all be equally well collected--that they will be paid as usual, although it is palpable that for a considerable time the merchants will be unable to find the means to pay them: yet, admit, sir, that the money is collected in the State banks, how is it to be transmitted? It must come to the centre of the seat of Government; very little of the public money is expended in the Northern section of the Union. Will it come from the Eastward, in bills of the State banks? Penobscot bank bills sometimes will not pass in Boston; Boston bills pass with difficulty in New York or Philadelphia; and the bills of New York State banks probably would not be readily current in Washington. You must, then, sir, if Boston gives you a revenue of two millions of dollars, transmit the greater part of it to the seat of Government, or wherever it may be wanted in specie. Can this be done? We have not two millions of dollars of specie in our town, and, I may almost venture to say, never had. Suppose you make this transmission once, can you do it a second time? No, sir, the thing is utterly impracticable. You must adopt some other mode. Exchange between the different cities will not reach the case; frequently it cannot be purchased even for an insignificant amount. Sir, will your money, when collected, be safe in the State banks? Of this I am extremely doubtful. Solicitations will undoubtedly be made for it from all quarters. They have already been made. In one instance, I am told, sir, the agent of a bank, even during the few past weeks, has been here for the purpose--that suddenly the agent was gone, and in a few days it was discovered that, owing to the failure of one of the debtors to the bank which he represented, (a great broker,) the stock had fallen in one day near 20 per cent. What was this the evidence of, but that those who were most interested in this bank, the stockholders who were on the spot, and best acquainted with its solidity, were willing to wash their hands of their concern in it, at almost any rate of sacrifice? Sir, I only state this, as it was here reported. I have no personal knowledge on the subject. But will you trust your funds with an institution thus precarious, and whose solidity is distrusted even by its best friends? WEDNESDAY, February 13. The credentials of NICHOLAS GILMAN, appointed a Senator by the Legislature of the State of New Hampshire, for the term of six years, commencing on the 4th day of March next, were read, and ordered to lie on file. THURSDAY, February 14. _Bank of the United States._ The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th of February, 1791. The question being to strike out the first section-- Mr. GILES.--Mr. President: It is with great reluctance that I find myself compelled to enter into the discussion of the subject now under the consideration of the Senate, but the observations which fell from the honorable gentleman from Georgia (Mr. CRAWFORD) were of such a character as to impose on me an irresistible obligation to present that view of the subject which has resulted from the best reflections I have been enabled to bestow on it. This obligation arises from the very high respect I entertain for the Legislature of the State I have the honor to represent, the great respect I feel for the gentleman who made the observations, as well as from the respect which is manifestly due to myself. In executing this unpleasant task, I labor under circumstances of peculiar embarrassment. This embarrassment arises from a conviction that the views of the subject now proposed to be exhibited will disappoint the expectations both of the opposers and the favorers of the bill, and that they will not be acceptable to either. I shall not, however, in this instance, depart from my invariable habit, when urged by duty to participate in debate before this honorable body, of disclosing in the most undisguised manner my real opinions upon the whole subject, free of any consideration of political difficulties or inconveniences which may consequently affect myself. In the first place, I find myself called upon to oppose a law, on constitutional grounds, which has been in existence for nearly twenty years, and during that period, I am compelled to admit, has been acquiesced in by the several State governments, as well as by the General Government, and its republican administrations. It is peculiarly irksome to me to question the constitutionality of a law which has been thus and so long acquiesced in, because it tends to give the character of instability to the laws generally, and in my judgment, tends also to impair the sacred character of the laws, and of course, to lessen their efficacy. In a Government like ours, where the laudable boast of every citizen is that he lives under a government of laws, and not of men, no subject should be touched with more caution and delicacy than one which questions the validity of the laws, lessens the confidence of the citizens in them, or impairs the obligation of obedience to them. Yet, sir, the course of observations I propose to make may have some of these tendencies, which I should extremely regret, and this apprehension, of course, produces embarrassment. Connected with this idea is another circumstance of embarrassment. I cannot help observing the inordinate zeal manifested by the opposers of this bill, evidently resulting from a belief that its rejection will lessen the powers of the Federal Government. Although it may be properly directed in the present instance, yet I think I have seen, and fear I may hereafter see the same spirit directed against some of the powers and proceedings of the Government which I have deemed indispensable to its own preservation, and its beneficial efficacy towards the people. It may, perhaps, be thought by some not becoming in me to say that I have not been an inattentive observer of the progress of this Government for twenty years, and more particularly, since the Republican party came into power. Some of the scenes through which I have passed, have produced an impressive influence on my mind. Such is the nature of the Government that its administration will vibrate from one principle to another, and it will always require great wisdom to keep its oscillations from wandering too far. Whilst those who preceded us in power endeavored to legislate into the constitution an unnecessary constructive energy, leading to what has been called consolidation, it appears to me that we have taken too much the opposite course, leading to disunion and dissolution, by depriving it constructively of its legitimate, necessary, and proper powers. If this course should be unfortunately persevered in, it requires no spirit of prophecy to foresee that the Government will fall to pieces from the want of due energy in the administration of its legitimate powers, or that some extraordinary means must be resorted to for its resuscitation. The honorable gentleman from Georgia, (Mr. CRAWFORD,) who reported this bill, as the chairman of the committee, to whom the subject was generally referred, excited not a little surprise in my mind by the prefatory remarks which fell from him in support of it. The gentleman prefaced his arguments by observing, "that it had latterly become the fashion to eulogize the Constitution of the United States; and that whenever he heard lavish encomiums applied to it, he could not help apprehending mischief." I acknowledge I could not comprehend the bearing of this remark upon the question under discussion. I, sir, have long been in the habit of venerating the constitution, and have often expressed my admiration at the wisdom of its provisions; and I really had hoped that I might have been indulged in these sentiments and prepossessions, and even the expression of them upon proper occasions, without exciting in the mind of any gentleman apprehensions of mischief; nor can I divine what species of mischief the gentleman apprehends from that cause. Mr. President, when we look over the whole world known to us; when we particularly cast our eyes over that part of it with which we have the most intimate relations; when we see the rapid strides which despotism is making over the whole human race; when we observe the various and powerful means now in use to rivet its immovable dominion upon mankind; when we reflect that the Constitution of the United States now affords the only practical experiment upon the republican principle, and the only and last hope for the preservation and extension of the liberties of man; is it wonderful or alarming, that we should feel and express some partiality and even veneration for an instrument of so peculiar a character? or should even endeavor to teach others to venerate, to cherish, to support it? An instrument, whose provisions at least exempt us from the general scene of despotism, and may eventually extend their blessings to the whole human race? Or if, in dwelling upon the wisdom and importance of its provisions, we might pass over some possible defects from scrutinizing them with an hypercritical eye, might not the omission be indulged without producing animadversion or censure? Sir, we all venerate the republican principle. I know the gentleman from Georgia (Mr. CRAWFORD) does; nor do I pretend that my devotion to it is greater than his; but, sir, I have given the greatest attention to the observations of the gentleman upon the constitution; and I can now say that my veneration for the instrument, and admiration at the wisdom of its provisions, are not at all impaired nor diminished, notwithstanding the gentleman's criticisms, &c. I will now, Mr. President, endeavor to exhibit the general character of the constitution; to point out the mode for its correct interpretation, and apply it to the subject now under consideration. In doing so, I propose to follow the course of observations made by the honorable chairman of the committee who reported the bill. The gentleman proceeded to remark, that in taking a review of the constitution he found general as well as incidental powers enumerated therein. I did not see the precise application the gentleman intended to make of this remark, but I have been induced to review the constitution in reference to this subject, and it does appear to me, that the classification and definition of powers is as well arranged as human wisdom could devise. I know that nothing is perfect which is the work of man; that no language is capable of perfect definition. But, as far as definition can be drawn from language, I conceive the constitution exhibits as perfect an example as is in existence. In the next place, the gentleman remarked that there was a number of cases in which Congress had departed from the particular enumerated powers in the constitution and had resorted to implication or construction for the derivation of its powers. The remark is perfectly correct, and I am very ready to admit that there is no such thing as carrying into effect enumerated powers in any instrument whatever, without the intervention of certain derivative and implied powers. But if the gentleman had succeeded in showing that there had been aberrations by the Congress of the United States from the enumerated powers of the constitution, would he think it correct to use those aberrations as precedents for still further aberrations? Ought they not rather to be considered as mementoes on the part of Congress to induce them to tread with more care, and, if they find that their former errors could not be supported by a fair and candid construction of the constitution, to restrain the laws within its wholesome provisions? Certainly that is the use to which the history of errors presented by the honorable gentleman from Georgia ought to be applied. But, before I proceed to examine the subject with more accuracy, I cannot avoid to express my surprise at another observation which fell from the gentleman. The gentleman observed, that the argument drawn from the distinction between ends and means was "incomprehensible;" and he went so far as to call it "nonsensical jargon." It is not only comprehensible to me, sir, as I conceive, but, in my opinion, is the only way in which a just construction of the constitution is to be attained. This results from the peculiar nature and organization of the instrument. Permit me here to endeavor to illustrate my idea by a reference to the constitution itself? The constitution is an instrument which grew out of the situation of the United States at the time of, and preceding its adoption; and to show that the constitution recited the great objects of its formation, and then prescribed the means for carrying them into effect, I beg leave to refer to a part of the instrument itself. The preamble, like all other preambles, was designed to express the objects of the instrument or the ends to be effected by its provisions. "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity; do ordain and establish this constitution for the United States of America." What is the plain language of this preamble? The answer is obvious. That certain great _ends_ or _objects_ are here proposed to be effected. In what mode, or by what _means_ are they to be effected? The preamble tells you, sir, "by establishing this Constitution for the United States of America." That is the mode in which these great _ends_ are proposed to be effected, and the body of the instrument prescribes the _means_ which were deemed necessary and proper to the effectuation of these _ends_. The subject will be better understood by throwing the mind back to the period of time when this constitution originated, and reviewing the peculiar political situation of the United States then, and for some time antecedently thereto. At the time, and antecedently to the establishment of the present constitution, the existing State Governments were in possession of all the powers of sovereignty, subject only to feeble and inefficient articles of confederation, without the means of executing their own will, and resting for its execution solely on requisitions upon the respective States, which might either comply or refuse to comply with such requisitions at their discretion. A non-compliance was almost invariably the result of State deliberations, and hence the feebleness of the old Confederation. The present constitution was adopted as the remedy for this great and alarming evil. Without it, disunion and ruin to the States would have been the inevitable consequence, because, upon actual experiment, the States were found utterly incompetent to the due administration of all the powers of sovereignty intrusted to their management. The reason of this incompetency was, that some of the most important powers of sovereignty inherently possessed a geographical influence beyond the geographical limits of the several States individually, and their jurisdiction could not transcend their geographical limits. Of this description of powers is the power to declare war, &c., to regulate commerce, &c., and all the other enumerated powers of the constitution. In consequence of the conflicting systems adopted by the several States in relation to some of these powers, which were then in practical operation; particularly in the conflicting regulations of commerce, the States were getting into the most serious collisions, &c. The formidable evils necessarily growing out of the state of things required a formidable and competent remedy. The great subject for the contemplation of every reflecting mind in America was, what that remedy should be? The wise framers of our admirable constitution, after great deliberation, conceived and executed the only practical expedient. It consisted in separating the powers of sovereignty; in establishing a General Government, and conferring on it all the powers of sovereignty whose geographical influence was found co-extensive with the geographical limits of the United States, and reserving to the State Governments respectively those powers which were of a mere local character, and which possessed no influence beyond the limits of the States respectively. And also to confer on the General Government "all the means necessary and proper" for executing its own laws in relation to these enumerated powers, without any dependence upon requisitions from the respective State Governments for this indispensable object. The idea was a grand one, and executed with an admirable simplicity, and the most consummate wisdom. Hence it appears that the great object of the framers of the constitution was to establish a General or Federal Government, and to confer on it all the powers of sovereignty, which in their nature and character possessed an influence co-extensive with the United States, and to reserve to the previously-existing State Governments all the powers of sovereignty of a more local character, and whose influence did not extend beyond the geographical limits of the States respectively, and therefore could be rendered completely subservient to State jurisdiction and management. These are the means prescribed in the constitution for effecting the ends expressed in the preamble. To the administrators of the General Government the framers of the constitution have said: We give to you all the powers of sovereignty of a general character; and to the administrators of the State Governments they have said: We reserve to you all the powers of sovereignty of a local character. I verily believe, that if those various Governments should be administered with the wisdom with which this separation of powers was made in the body of the constitution, the people of the United States will not be disappointed in the great and interesting objects proclaimed in its preamble. From this short history of the origin of the constitution, and the causes which produced it, it evidently appears, that the General or Federal Government is in its nature and character a Government of enumerated powers, taken from previously existing State Governments, enumerated and conferred on it, reserving all unenumerated powers to the State Governments, or to the people in their individual capacities. But if any doubts had existed upon this subject, two amendments to the constitution, growing out of some jealousies lest a contrary interpretation should be given to the constitution, have been adopted, which ought to put this question to rest forever. The 9th and 10th articles of amendments to the constitution are as follow: "The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people." "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Now, sir, can language be more explicit than this, in declaring that this charter contains certain enumerated powers, and that all not enumerated are reserved to the States or to the people? There is one article reserving rights to the people, and afterwards another article reserving them to the States and to the people. While on this subject, I beg leave to read a clause in the constitution, which I find among the enumerated powers, and which has been construed by some, as intended to convey a general grant of powers among the enumerated powers: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." The words "and to provide for the common defence and general welfare," have by some been considered as conveying a general grant of power. Nothing is necessary to show that this is not a fair and correct construction of the constitution, but reading it with attention. These terms contain no grant of power whatever, but are used to express the ends or objects for which particular grants of power were given. Paying the debts and providing for the common defence and general welfare are great objects, intimately connected with the particular grants of power which are given for their effectuation; and without these particular grants of power, it would not have been possible for Congress to effect them. The framers of the constitution have simply selected some of the objects expressed in the preamble, and declared that to effect them, and to pay the debts of the United States, were the considerations which induced them to give to Congress the power "to lay and collect taxes," &c. Thus taxes are to be laid, &c. "to pay the debts, and to provide for the common defence and general welfare." Could they have chosen a more appropriate phraseology? The plain language to Congress is: "You shall have power to lay and collect taxes, to pay the debts," &c., and to provide for the common defence and general welfare, or, in other words, for the purpose of paying the debts, &c., and of providing for the common defence and general welfare. These words do not contain a general grant of powers, but express the objects of a particular grant of powers. The framers of the constitution could not have done an act so absurd as to make a general grant of powers, among an enumeration of specified powers. I will now, Mr. President, proceed to examine those instances which the gentleman has presented of the supposed aberrations of the Congress of the United States from the enumerated powers, and I think it will not be difficult to show that there is not a single instance quoted, but which is deducible from a fair and correct interpretation of the express words of the constitution, giving them their common and appropriate meaning. The first instance presented to our consideration by the honorable gentleman from Georgia (Mr. CRAWFORD) of the exercise of a power by Congress not enumerated in the constitution, was the erection of light-houses. The gentleman from Massachusetts, (Mr. LLOYD,) to whose dispassionate observations I listened with great pleasure, superadded the instance of the erection of custom-houses. On these, both of the gentlemen seemed to place great reliance, as cases in point with the one under consideration. Both these powers I conceive are given to Congress by the express words of the constitution; but if I should be mistaken in this idea, they are certainly comprehended as incidental and subservient to, or in other words, "necessary and proper" for carrying into effect some of the enumerated powers. The express words of the constitution give to Congress the power "to lay and collect taxes, duties, imposts, and excises," &c.; "to regulate commerce with foreign nations among the several States, and with the Indian tribes;" "to exercise exclusive legislation in all cases whatever, &c., over all places purchased by consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." From these clauses of the constitution, taken in connection with each other, I think Congress possesses the power to erect light-houses and custom-houses by the express words of the constitution; for both of these descriptions of houses must necessarily be included within the term "needful buildings," or the only construction which is at all applicable to these cases is, that needful buildings is the general term, and light-houses and custom-houses are particular instances or examples under the general term; or, if I may be so allowed to express my ideas, needful buildings may be considered as the genus, of which light-houses and custom-houses are particular species. The reason with the framers of the constitution for using this general term is obvious. It was, because it was impossible for them to foresee all the particular species of needful buildings which might become necessary to the salutary operations of this Government in the course of its complicated and due administration; they therefore wisely left that subject to the discussion of Congress, restrained and limited, nevertheless, by the requisition of the consent of the Legislatures of the States respectively, in every case proposed for the exercise of this discretion. That this is a plain and correct interpretation of the constitution is evinced by the concurrent opinions of every Legislature of every State, which has heretofore ceded lands for any of these objects; and it is to be remarked, that Congress has never attempted to erect any of these buildings without the constitutional requisition of the consent of the States respectively. But if this term "needful buildings" had not been expressed in the constitution, I should not hesitate to admit with these gentlemen that the erection of light-houses and custom-houses might properly be deduced from the power to lay and collect taxes, duties, &c., which are particular grants of power enumerated in the constitution. Because custom-houses are appropriately necessary to the collection of duties, and have always been deemed indispensable for that object, as are light-houses to the due regulation of commerce. These two powers are indispensably connected with, and subservient to, particular enumerated powers, and are therefore among the means which are necessary and proper for their effectuation; and as such are given to Congress by the express words of the constitution, which are: Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof." From this course of interpretation, the gentlemen, reasoning from a supposed analogy, have asked, if Congress can derive the right to erect light-houses and custom-houses from their necessary agency in effectuating the particular powers to which they are said to be appendant or appurtenant, why may it not in the same way derive the right of granting charters of incorporation for the same objects? Or, in other words, if Congress can constitutionally erect custom-houses for the purpose, or as the necessary means of collecting duties; why may it not establish a bank for the same object, &c.? The question is admitted to be a fair one; and if a clear distinction cannot be made in the two cases, it will be admitted either that Congress may constitutionally establish a bank, or that it has heretofore transcended its powers in erecting custom-houses, &c. A clear and most obvious distinction appears to me to exist in the cases suggested by the gentlemen to be analogous, arising from the striking difference in the nature and essential character of these powers. A custom-house is in its nature incidental and subservient to the collection of duties. It is one of the common, necessary, and proper means to effect that end. It is believed that in no commercial country in the world are duties collected without them. Besides, the erection of custom-houses does not involve in it the exercise of any other higher or consequential powers. The same remarks will apply to light-houses, as among the common, necessary, and proper means for the regulation of commerce, &c. Is the incorporation of a bank of this character? It is not among the common, necessary, and proper means of effecting either of the foregoing enumerated powers, nor of any other enumerated in the constitution; still less is it incidental or subservient to any of the enumerated powers. It wants that connection, affiliation, and subserviency, to some enumerated power, which are clearly pointed out in relation to the two powers, to which it has been said to be analogous. Besides, does granting a charter of incorporation to a bank involve no other higher or consequential power than merely erecting a needful building for collecting duties, &c.? It certainly does. It involves the power to grant charters of incorporation generally; and in this respect, principally, its character is essentially different from both of the powers cited by the gentleman. The power to grant charters of incorporation is not an incidental, subordinate, subservient power; it is a distinct, original, substantive power. It is also susceptible of the clearest definition; and not being among the enumerated powers, it seems to me that Congress can have no fair claim to its exercise in any case. If Congress had been expressly authorized to grant charters of incorporation generally, then granting a charter of incorporation to a bank would have been an instance, or among the means, of carrying into effect that enumerated power, and would have been as much connected and affiliated with it as is the erection of custom-houses with the collection of duties; but the power to grant charters of incorporation generally not being expressly given in the constitution, no particular instance involving the exercise of that power can be inferred by a fair and candid interpretation of the instrument. I do not mean to exaggerate the consequences which might result from an assumption of the power to grant charters of incorporation, &c. It is sufficient for me to say that it is a power of primary importance; that it involves as many incidental powers in its exercise as any one of the enumerated powers; that it is equal, if not paramount, to any; and, therefore, in my judgment, cannot be assumed by fair construction as incidental and subservient to any; and, of course, not as among the necessary and proper means for carrying any into effect. In fact, in its nature it does not in the smallest degree partake of the derivative, incidental character. It is original, substantive, distinct in itself, and susceptible of the plainest definition. Hence, whilst I am willing to admit that a power, which is in its nature incidental and subservient to any enumerated power, and also among the necessary and proper means for carrying it into effect, may be exercised by Congress without the express words of the constitution, I should be very unwilling to admit that Congress should also exercise a power neither incidental nor subservient to any of the enumerated powers, nor among the necessary and proper means for carrying any into effect; still less should I be inclined to this admission, when the power thus proposed to be derived, incidentally or constructively, involves in it the exercise of almost unlimited powers. To illustrate my idea still further in this respect, I would observe, that the power to regulate descents, and to regulate the distribution of intestates, I conceive to be original, distinct, substantive powers; and, being among the powers which could in all respects be limited by the geographical boundaries of the individual States, and were therefore among the powers reserved to the management of the States, might as easily be assumed by Congress as incidental to some one of the enumerated powers, as the assumption of the power to grant charters of incorporation, which I conceive was, for the same reason, left to the management of the States. I believe no gentleman will contend that Congress can, under any candid construction, go so far in relation to those powers; nor do I see how it can in relation to the power of granting charters of incorporation. FRIDAY, February 15. _Bank of the United States._ The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th day of February, 1791. Mr. CLAY.--Mr. President: When the subject involved in the motion now under consideration was depending before the other branch of the Legislature, a disposition to acquiesce in their decision was evinced. For although the committee who reported this bill had been raised many weeks prior to the determination of that House on the proposition to recharter the bank, except the occasional reference to it of memorials and petitions, we scarcely ever heard of it. The rejection, it is true, of a measure brought before either branch of Congress, does not absolutely preclude the other from taking up the same proposition; but the economy of our time, and a just deference for the opinion of others, would seem to recommend a delicate and cautious exercise of this power. As this subject, at the memorable period when the charter was granted, called forth the best talents of the nation--as it has, on various occasions, undergone the most thorough investigation, and as we can hardly expect that it is susceptible of receiving any further elucidation, it was to have been hoped that we should have been spared a useless debate. This was the more desirable because there are, I conceive, much superior claims upon us for every hour of the small portion of the session yet remaining to us. Under the operation of these motives, I had resolved to give a silent vote, until I felt myself bound, by the defying manner of the arguments advanced in support of the renewal, to obey the paramount duties I owe my country and its constitution; to make one effort, however feeble, to avert the passage of what appears to me a most unjustifiable law. After my honorable friend from Virginia (Mr. GILES) had instructed and amused us with the very able and ingenious argument which he delivered on yesterday, I should have still forborne to trespass on the Senate, but for the extraordinary character of his speech. He discussed both sides of the question, with great ability and eloquence, and certainly demonstrated to the satisfaction of all who heard him, both that it was constitutional and unconstitutional, highly proper and improper to prolong the charter of the bank. The honorable gentleman appeared to me in the predicament in which the celebrated orator of Virginia, Patrick Henry, is said to have been once placed. Engaged in a most extensive and lucrative practice of the law, he mistook in one instance the side of the cause on which he was retained, and addressed the court and jury in a very splendid and convincing speech in behalf of his antagonist. His distracted client came up to him whilst he was progressing, and interrupting him, bitterly exclaimed, "you have undone me! you have ruined me!"--"Never mind, give yourself no concern," said the adroit advocate; and turning to the court and jury, continued his argument by observing, "May it please your honors, and you, gentlemen of the jury, I have been stating to you what I presume my adversary may urge on his side. I will now show you how fallacious his reasoning and groundless his pretensions are." The skilful orator proceeded, satisfactorily refuted every argument he had advanced, and gained his cause! A success with which I trust the exertion of my honorable friend will on this occasion be crowned. It has been said by the honorable gentleman from Georgia (Mr. CRAWFORD) that this has been made a party question, although the law incorporating the bank was passed prior to the formation of parties, and when Congress was not biased by party prejudices. [Mr. CRAWFORD explained. He did not mean that it had been made a party question in the Senate. His allusion was elsewhere.] I do not think it altogether fair to refer to the discussions in the House of Representatives, as gentlemen belonging to that body have no opportunity of defending themselves here. It is true that this law was not the effect, but it is no less true that it was one of the causes of the political divisions of this country. And if, during the agitation of the present question, the renewal has, on one side, been opposed on party principles, let me ask if, on the other, it has not been advocated on similar principles? Where is the Macedonian phalanx, the opposition in Congress? I believe, sir, I shall not incur the charge of presumptuous prophecy, when I predict that we shall not pick up from its ranks one single straggler! And if, on this occasion, my worthy friend from Georgia has gone over into the camp of the enemy, is it kind in him to look back upon his former friends, and rebuke them for the fidelity with which they adhere to their old principles? I shall not stop to examine how far a representative is bound by the instructions of his constituents. This is a question between the giver and receiver of the instructions. But I must be permitted to express my surprise at the pointed difference which has been made between the opinions and instructions of State Legislatures, and the opinions and details of the deputations with which we have been surrounded from Philadelphia. Whilst the resolutions of those Legislatures--known, legitimate, constitutional and deliberative bodies--have been thrown into the back ground, and their interference regarded as officious, these delegations from self-created societies, composed of whom nobody knows, have been received by the committee with the utmost complaisance. Their communications have been treasured up with the greatest diligence. Never did the Delphic priests collect with more holy care the frantic expressions of the agitated Pythia, or expound them with more solemnity to the astonished Grecians, than has the committee gathered the opinions and testimony of these deputies, and through the gentleman from Massachusetts, pompously detailed them to the Senate! Philadelphia has her immediate representatives, capable of expressing her wishes upon the floor of the other House. If it be improper for States to obtrude upon Congress their sentiments, it is much more highly so for the unauthorized deputies of fortuitous congregations. The first singular feature that attracts attention in this bill is the new and unconstitutional veto which it establishes. The constitution has required only, that after bills have passed the House of Representatives and the Senate, they shall be presented to the President for his approval or rejection, and his determination is to be made known in ten days. But this bill provides, that when all the constitutional sanctions are obtained, and when according to the usual routine of legislation it ought to be considered as a law, it is to be submitted to a new branch of the Legislature, consisting of the President and twenty-four Directors of the Bank of the United States, holding their sessions in Philadelphia, and if they please to approve it, why then it is to become a law! And three months (the term allowed by our law of May last, to one of the great belligerents for revoking his edicts, after the other shall have repealed his) are granted them to decide whether an act of Congress shall be the law of the land or not! An act which is said to be indispensably necessary to our salvation, and without the passage of which, universal distress and bankruptcy are to pervade the country. Remember, sir, that the honorable gentleman from Georgia has contended that this charter is no contract. Does it, then, become the representatives of the nation to leave the nation at the mercy of a corporation? Ought the impending calamities to be left to the hazard of a contingent remedy? This vagrant power to erect a bank, after having wandered throughout the whole constitution in quest of some congenial spot whereupon to fasten, has been at length located by the gentleman from Georgia on that provision, which authorizes Congress to lay and collect taxes, &c. In 1791, the power is referred to one part of the instrument; in 1811, to another. Sometimes it is alleged to be deducible from the power to regulate commerce. Hard pressed here, it disappears, and shows itself under the grant to coin money. The sagacious Secretary of the Treasury in 1791 pursued the wisest course--he has taken shelter behind general, high-sounding, and imposing terms. He has declared in the preamble to the act establishing the bank, that it will be very conducive to the successful conducting of the national finances; will tend to give facility to the obtaining of loans, and will be productive of considerable advantage to trade and industry in general. No allusion is made to the collection of taxes. What is the nature of this Government? It is emphatically federal, vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said that there are cases in which it must act on implied powers. This is not controverted, but the implication must be necessary, and obviously flow from the enumerated power with which it is allied. The power to charter companies is not specified in the grant, and I contend is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty. In the exercise of this gigantic power we have seen an East India Company created, which has carried dismay, desolation, and death throughout one of the largest portions of the habitable world. A company which is, in itself, a sovereignty--which has subverted empires and set up new dynasties--and has not only made war, but war against its legitimate sovereign! Under the influence of this power, we have seen arise a South Sea Company, and a Mississippi Company, that distracted and convulsed all Europe, and menaced a total overthrow of all credit and confidence, and universal bankruptcy. Is it to be imagined that a power so vast would have been left by the wisdom of the constitution to doubtful inference? It has been alleged that there are many instances, in the constitution, where powers, in their nature incidental, and which would have necessarily vested along with the principal power, are nevertheless expressly enumerated; and the power "to make rules and regulations for the government of the land and naval forces," which, it is said, is incidental to the power to raise armies and provide a navy, is given as an example. What does this prove? How extremely cautious the convention were to leave as little as possible to implication. In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The incidental power ought to be strictly subordinate and limited to the end proposed to be attained by the specified power. In other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects which are not specified in the constitution. If then you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. It is a mockery, worse than usurpation, to establish it for a lawful object, and then extend it to other objects which are not lawful. In deducing the power to create corporations, such as I have described it, from the power to collect taxes, the relation and condition of principal and incident are prostrated and destroyed. The accessory is exalted above the principal. As well might it be said that the great luminary of day is an accessory, a satellite to the humblest star that twinkles forth its feeble light in the firmament of heaven! Suppose the constitution had been silent as to an individual department of this Government, could you, under the power to lay and collect taxes, establish a judiciary? I presume not; but if you could derive the power by mere implication, could you vest it with any other authority than to enforce the collection of the revenue? A bank is made for the ostensible purpose of aiding in the collection of the revenue, and while it is engaged in this, the most inferior and subordinate of all its functions, it is made to diffuse itself through society, and to influence all the great operations of credit, circulation, and commerce. Like the Virginia justice, you tell the man, whose turkey had been stolen, that your book of precedents furnishes no form for his case, but then you will grant him a precept to search for a cow, and when looking for that he may possibly find his turkey! You say to this corporation, we cannot authorize you to discount--to emit paper--to regulate commerce, &c. No! Our book has no precedents of that kind. But then we can authorize you to collect the revenue, and, while occupied with that, you may do whatever else you please! What is a corporation such as the bill contemplates? It is a splendid association of favored individuals, taken from the mass of society, and invested with exemptions and surrounded by immunities and privileges. The honorable gentleman from Massachusetts (Mr. LLOYD) has said that the original law, establishing the bank, was justly liable to the objection of vesting in that institution an exclusive privilege, the faith of the Government being pledged that no other bank should be authorized during its existence. This objection he supposes is obviated by the bill under consideration; but all corporations enjoy exclusive privileges--that is, the corporators have privileges which no others possess; and if you create fifty corporations instead of one, you have only fifty privileged bodies instead of one. I contend that the States have the exclusive power to regulate contracts, to declare the capacities and incapacities to contract, and to provide as to the extent of responsibility of debtors to their creditors. If Congress have the power to erect an artificial body and say it shall be endowed with the attributes of an individual--if you can bestow on this object of your own creation the ability to contract, may you not, in contravention of State rights, confer upon slaves, infants, and femes covert, the ability to contract? And if you have the power to say that an association of individuals shall be responsible for their debts only in a certain limited degree, what is to prevent an extension of a similar exemption to individuals? Where is the limitation upon this power to set up corporations? You establish one, in the heart of a State, the basis of whose capital is money. You may erect others whose capital shall consist of land, slaves, and personal estate, and thus the whole property within the jurisdiction of a State might be absorbed by these political bodies. The existing bank contends that it is beyond the power of a State to tax it, and if this pretension be well founded, it is in the power of Congress, by chartering companies, to dry up the whole of the sources of State revenue. Georgia has undertaken, it is true, to levy a tax on the branch within her jurisdiction, but this law, now under a course of litigation, is considered as invalid. The United States own a great deal of land in the State of Ohio; can this Government, for the purpose of creating an ability to purchase it, charter a company? Aliens are forbidden, I believe, in that State, to hold real estate--could you, in order to multiply purchasers, confer upon them the capacity to hold land, in derogation of the local law? I imagine this will hardly be insisted upon; and yet there exists a more obvious connection between the undoubted power, which is possessed by this Government, to sell its land, and the means of executing that power, by increasing the demand in the market, than there is between this bank and the collection of a tax. This Government has the power to levy taxes--to raise armies--provide a navy--make war--regulate commerce--coin money, &c. It would not be difficult to show as intimate a connection between a corporation, established for any purpose whatever, and some one or other of those great powers, as there is between the revenue and the bank of the United States. Let us inquire into the actual participation of this bank in the collection of the revenue. Prior to the passage of the act of 1800, requiring the collectors of those ports of entry, at which the principal bank or any of its offices are situated, to deposit with them the custom-house bonds, it had not the smallest agency in the collection of the duties. During almost one moiety of the period to which the existence of this institution was limited, it was noways instrumental in the collection of that revenue, to which it is now become indispensable! The collection, previous to 1800, was made entirely by the collectors; and even at present, where there is one port of entry, at which this bank is employed, there are eight or ten at which the collection is made as it was before 1800. And, sir, what does this bank or its branches when resort is had to it? It does not adjust with the merchant the amount of the duty, nor take his bond; nor, if the bond is not paid, coerce the payment by distress or otherwise. In fact, it has no active agency whatever in the collection. Its operation is merely passive; that is, if the obligor, after his bond is placed in the bank, discharges it, all is very well. Such is the mighty aid afforded by this tax-gatherer, without which the Government cannot get along! Again, it is not pretended that the very limited assistance which this institution does in truth render, extends to any other than a single species of tax, that is, duties. In the collection of the excise, the direct and other internal taxes, no aid was derived from any bank. It is true, in the collection of those taxes, the farmer did not obtain the same indulgence which the merchant receives in paying duties. But what obliges Congress to give credit at all? Could it not demand prompt payment of the duties? And in fact does it not so demand in many instances? Whether credit is given or not, is a matter merely of discretion. If it be a facility to mercantile operations (as I presume it is) it ought to be granted. But I deny the right to ingraft upon it a bank, which you would not otherwise have the power to erect. You cannot create the necessity of a bank, and then plead that necessity for its establishment. In the administration of the finances, the bank acts simply as a payer and receiver. The Secretary of the Treasury has money in New York and wants it in Charleston; the bank will furnish him with a check, or bill, to make the remittance, which any merchant would do just as well. I will now proceed to show by fact, actual experience, not theoretic reasoning, but by the records themselves of the Treasury, that the operations of that department may be as well conducted without as with this bank. The delusion has consisted in the use of certain high-sounding phrases, dexterously used on the occasion. "The collection of the revenue"--"The administration of the finance"--"The conducting the fiscal affairs of the Government," the usual language of the advocates of the bank, extort express assent, or awe into acquiescence, without inquiry or examination into its necessity. About the commencement of this year there appears, by the report of the Secretary of the Treasury of the 7th of January, to have been a little upwards of two millions four hundred thousand dollars in the Treasury of the United States; and more than one-third of this whole sum was in the vaults of local banks. In several instances, where an opportunity existed of selecting the bank, a preference has been given to the State bank, or at least a portion of the deposits has been made with it. In New York, for example, there was deposited with the Manhattan Bank $188,670, although a branch bank is in that city. In this District, $115,080 were deposited with the bank of Columbia, although here also is a branch bank, and yet the State banks are utterly unsafe to be trusted! If the money, after the bonds are collected, is thus placed with these banks, I presume there can be no difficulty in placing the bonds themselves there, if they must be deposited with some bank for collection, which I deny. Again, one of the most important and complicated branches of the Treasury Department is the management of our landed system. The sales have some years amounted to upwards of half a million of dollars, are generally made upon credit, and yet no bank whatever is made use of to facilitate the collection. After it is made, the amount in some instances has been deposited with banks, and according to the Secretary's report, which I have before adverted to, the amount so deposited was in January upwards of three hundred thousand dollars, not one cent of which was in the vaults of the Bank of the United States, or in any of its branches, but in the Bank of Pennsylvania, its branch at Pittsburg, the Marietta Bank, and the Kentucky Bank. Upon the point of responsibility, I cannot subscribe to the opinion of the Secretary of the Treasury, if it is meant that the ability to pay the amount of any deposits which the Government may make under any exigency, is greater than that of the State banks; that the accountability of a ramified institution, whose affairs are managed by a single head, responsible for all its members, is more simple than that of a number of independent and unconnected establishments, I shall not deny; but, with regard to safety, I am strongly inclined to think it is on the side of the local banks. The corruption or misconduct of the parent, or any of its branches, may bankrupt or destroy the whole system, and the loss of the Government in that event will be of the deposits made with each; whereas in the failure of one State bank the loss will be confined to the deposit in the vaults of that bank. It is said to have been a part of Burr's plan to seize on the branch bank at New Orleans. At that period large sums, imported from La Vera Cruz, are alleged to have been deposited with it, and if the traitor had accomplished his design, the Bank of the United States, if not actually bankrupt, might have been constrained to stop payment. It is urged by the gentleman from Massachusetts, (Mr. LLOYD,) that as this nation progresses in commerce, wealth, and population, new energies will be unfolded, new wants and exigencies will arise, and hence he infers that powers must be implied from the constitution. But, sir, the question is, shall we stretch the instrument to embrace cases not fairly within its scope, or shall we resort to that remedy, by amendment, which the constitution prescribes? Gentlemen contend that the construction which they give to the constitution has been acquiesced in by all parties, and under all administrations; and they rely particularly on an act which passed in 1804, for extending a branch to New Orleans, and another act, of 1807, for punishing those who should forge or utter forged paper of the bank. With regard to the first law, passed no doubt upon the recommendation of the Treasury Department, I would remark, that it was the extension of a branch to a Territory, over which Congress possesses power of legislation almost uncontrolled, and where, without any constitutional impediment, charters of incorporation may be granted. As to the other act, it was passed no less for the benefit of the community than the bank--to protect the ignorant and unwary from counterfeit paper, purporting to have been emitted by the bank. When gentlemen are claiming the advantage supposed to be deducible from acquiescence, let me inquire what they would have had those to have done who believed the establishment of the bank an encroachment upon State rights? Were they to have resisted, and how? By force? Upon the change of parties, in 1800, it must be well recollected that the greatest calamities were predicted as consequences of that event. Intentions were ascribed to the new occupants of power of violating the public faith and prostrating national credit. Under such circumstances, that they should act with great circumspection was quite natural. They saw in full operation a bank, chartered by a Congress who had as much right to judge of their constitutional powers as their successors. Had they revoked the law which gave it existence, the institution would, in all probability, have continued to transact business notwithstanding. The Judiciary would have been appealed to; and, from the known opinions and predilections of the judges then composing it, they would have pronounced the act of incorporation, as in the nature of a contract, beyond the repealing power of any succeeding Legislature. And, sir, what a scene of confusion would such a state of things have presented--an act of Congress, which was law in the statute book, and a nullity on the judicial records! Was it not wisest to wait the natural dissolution of the corporation, rather than accelerate that event by a repealing law involving so many delicate considerations? When gentlemen attempt to carry this measure, upon the ground of acquiescence or precedent, do they forget that we are not in Westminster Hall? In courts of justice, the utility of uniformity of decision exacts of the judge a conformity to the adjudication of his predecessor. In the interpretation and administration of the law, this practice is wise and proper; and without it, every thing depending upon the caprice of the judge, we should have no security for our dearest rights. It is far otherwise when applied to the source of legislation. Here no rule exists but the constitution; and to legislate upon the ground merely that our predecessors thought themselves authorized, under similar circumstances, to legislate, is to sanctify error and perpetuate usurpation. But if we are to be subjected to the trammels of precedents, I claim, on the other hand, the benefit of the restrictions under which the intelligent judge cautiously receives them. It is an established rule, that to give to a previous adjudication any effect, the mind of the judge who pronounced must have been awakened to the subject, and it must have been a deliberate opinion formed after full argument. In technical language, it must not have been _sub silentio_. Now, the acts of 1804 and 1807, relied upon as pledges for the re-chartering this company, passed not only without any discussions whatever, of the constitutional power of Congress to establish a bank, but I venture to say, without a single member having had his attention drawn to this question. I had the honor of a seat in the Senate when the latter law passed; probably voted for it; and I declare, with the utmost sincerity, that I never once thought of that point; and I appeal confidently to every honorable member who was then present to say if that was not his situation. This doctrine of precedents, applied to the Legislature, appears to me to be fraught with the most mischievous consequences. The great advantage of our system of government over all others is, that we have a written constitution defining its limits and prescribing its authorities; and that, however for a time faction may convulse the nation, and passion and party prejudice sway its functionaries, the season of reflection will recur, when calmly retracing their deeds, and all aberrations from fundamental principle will be corrected. But once substitute practice for principle, the expositions of the constitution for the text of the constitution, and in vain shall we look for the instrument in the instrument itself. It will be as diffused and intangible as the pretended constitution of England; and it must be sought for in the statute book, in the fugitive journals of Congress, and in reports of the Secretary of the Treasury. What would be our condition if we were to take the interpretations given to that sacred book, which is or ought to be the criterion of our faith, for the book itself? We should find the Holy Bible buried beneath the interpretations, glosses, and comments of councils, synods, and learned divines, which have produced swarms of intolerant and furious sects, partaking less of the mildness and meekness of their origin than of a vindictive spirit of hostility towards each other. They ought to afford us a solemn warning to make that constitution, which we have sworn to support, our invariable guide. I conceive, then, sir, that we are not empowered by the constitution nor bound by any practice under it, to renew the charter of this bank and I might here rest the argument. But, as there are strong objections to the renewal upon the score of expediency, and as the distresses which will attend the dissolution of the bank have been greatly exaggerated, I will ask your indulgence for a few moments longer. That some temporary inconvenience will arise, I shall not deny; but most groundlessly have the recent failures in New York been attributed to the discontinuance of this bank. As well might you ascribe to that cause the failures of Amsterdam and Hamburg, of London and Liverpool. The embarrassments of commerce, the sequestration in France, the Danish captures--in fine, the belligerent edicts, are the obvious sources of these failures. Their immediate cause is the return of bills upon London, drawn upon the faith of unproductive or unprofitable shipments. Yes, sir, the protests of the notaries of London, not those of New York, have occasioned these bankruptcies. The power of a nation is said to consist in the sword and the purse. Perhaps, at last, all power is resolvable into that of the purse, for with it you may command almost every thing else. The specie circulation of the United States is estimated by some calculators at ten millions of dollars; and if it be no more, one moiety is in the vaults of this bank. May not the time arrive when the concentration of such a vast portion of the circulating medium of the country in the hands of any corporation will be dangerous to our liberties? By whom is this immense power wielded? By a body who, in derogation of the great principle of all our institutions, responsibility to the people, is amenable only to a few stockholders, and they chiefly foreigners. Suppose an attempt to subvert this Government, would not the traitor first aim, by force or corruption, to acquire the treasure of this company? Look at it in another aspect. Seven-tenths of its capital are in the hands of foreigners, and these foreigners chiefly English subjects. We are possibly upon the eve of a rupture with that nation. Should such an event occur, do you apprehend that the English Premier would experience any difficulty in obtaining the entire control of this institution? Republics, above all other nations, ought most studiously to guard against foreign influence. All history proves that the internal dissensions excited by foreign intrigue have produced the downfall of almost every free Government that has hitherto existed; and yet gentlemen contend that we are benefited by the possession of this foreign capital. If we could have its use, without its attending abuse, I should be gratified also. But it is in vain to expect the one without the other. Wealth is power, and under whatsoever form it exists, its proprietor, whether he lives on this or the other side of the Atlantic, will have a proportionate influence. It is argued, that our possession of this English capital gives us a certain influence over the British Government. If this reasoning be sound, we had better revoke the interdiction as to aliens holding land, and invite foreigners to engross the whole property, real and personal, of the country. We had better at once exchange the condition of independent proprietors for that of stewards. We should then be able to govern foreign nations, according to the arguments of gentlemen on the other side. But let us put aside this theory, and appeal to the decisions of experience. Go to the other side of the Atlantic, and see what has been achieved for us there by Englishmen holding seven-tenths of the capital of this bank. Has it released from galling and ignominious bondage one solitary American seaman, bleeding under British oppression? Did it prevent the unmanly attack upon the Chesapeake? Did it arrest the promulgation, or has it abrogated the Orders in Council--those orders which have given birth to a new era in commerce? In spite of all its boasted effects, are not the two nations brought to the very brink of war? Are we quite sure that, on this side of the water, it has had no effect favorable to British interests. It has often been stated, and, although I do not know that it is susceptible of strict proof, I believe it to be a fact, that this bank exercised its influence in support of Jay's treaty; and may it not have contributed to blunt the public sentiment, or paralyze the efforts of this nation against British aggression? The Duke of Northumberland is said to be the most considerable stockholder in the Bank of the United States. A late Lord Chancellor of England, besides other noblemen, was a large stockholder. Suppose the Prince of Essling, the Duke of Cadore, and other French dignitaries owned seven-eighths of the capital of this bank, should we witness the same exertions (I allude not to any made in the Senate) to recharter it? So far from it, would not the danger of French influence be resounded throughout the nation? I shall give my most hearty assent to the motion for striking out the first section of the bill. Mr. POPE.--Mr. President, in rising on this occasion, I never more entirely obeyed both my feelings and my judgment. The principle involved in the decision about to be given, is in my view of more magnitude than any which has been presented for our consideration since I had the honor of a seat here. It is no less than whether we shall surrender to the State Governments the power of collecting our revenue and rely upon the old system of requisitions. We are called upon to return to that state of imbecility and chaos from which this political fabric was reared by the wisdom and patriotism of the first statesmen of which any age or nation can boast. For twenty years we have collected our revenue, borrowed money, paid our debts, and managed our fiscal concerns through the agency of a national bank. That it has answered the most sanguine expectations of its authors; that it has been well managed, is admitted by the most decided opponents to the renewal of the charter. Although in public debate, in newspapers, court-yards, muster-fields, &c., we have heard much of dangerous powers, violations of the constitution, British influence, and poisonous vipers, &c., &c., which were to sting to death the liberties of the people, yet we find ourselves as free almost as the air we breathe, and hardly subservient to the mildest code of laws by which any nation was ever governed. In the city of Philadelphia, and the State of Pennsylvania generally, where these animals called banks have grown to the most enormous size, we find as sound morals, and as much real practical republicanism, as in those parts of the Union where the rattling of this viper's tail has never been heard, and in point of solid wealth and internal improvements, mark the contrast. We are required to disregard the lessons of that best teacher, experience, and to try some new scheme. However captivating new theories and abstract propositions were a few years since, I believe the thinking men of all parties in the nation are perfectly convinced that one ounce of experience and common matter-of-fact sense is worth more for the purposes of legislation than a ship-load of theory and speculation. We are told that we must force into the vaults of the bank a large portion of the circulating medium, and thereby depress the price of every thing in the market; we must give a shock to credit of every kind, check and embarrass every branch of agricultural, commercial, and manufacturing industry; give up the young mechanics, manufacturers, and merchants with small capitals a prey to the cupidity of moneyed men, who will be tempted to withdraw their funds from trade to speculate on the wrecks of the unfortunate. This is not mere matter of calculation. I only state facts proved to us by the most unquestionable evidence. We are not only, sir, to ruin many innocent and unoffending individuals, but to derange the national finances; and for what is all this to be done? To promote the public good or advance the national prosperity? No, sir, it is not pretended. We are gravely told, that we, the Representatives of the people, must sacrifice the people to save the constitution of the people, whose happiness and welfare it was intended to secure. If this be true, it is indeed a strange Government under which we live. I advance the opinion with confidence, that no principle which, in its practical effects, outrages the common sense and feelings of mankind, can be a sound one, and we ought to examine it well, and hesitate much before we give our assent. To bring distress on the country, not to prevent a violation of any positive provision of the constitution; but to correct what we suppose to have been an erroneous construction of it by our predecessors, of which neither the States nor the people have ever complained, appears to be more nice than wise. Disguise this question as you will, sir, and still it will clearly appear to be a contest between a few importing States and the people of the United States. Resolutions have been already laid on our table by gentlemen from the two large States; from which instructions have been received in substance, requiring Congress to give up to the State banks the collection of the national revenue. I am, Mr. President, on the side of the people of the United States. This is indeed a question of party, but of a very different character from that which will be attempted to be palmed on the people. It is a contest between the friends and enemies of the Federal Constitution revived; for, if I am not mistaken, the power of laying and collecting imposts and duties was strongly objected to by some of the large States having advantageous seaports, before the constitution was adopted. I am for preserving both the States and the Union. I consider the safety and independence of the several States, and the liberties of the people, inseparably connected with and dependent on the efficiency of the National Government, and it is to me unaccountable that gentlemen in favor of strong measures against foreign nations should be so solicitous to strip the General Government of this very essential part of its power. We were told, a few days since, that our army was so insignificant and contemptible, that it would require a constable, with a search warrant, to find it. I have heard another gentleman of very high standing suggest the propriety of retroceding the ten miles square to the States of Virginia and Maryland. Our gunboats are almost rotten. We have not more frigates and other armed vessels than sufficient to carry our Ministers and diplomatic despatches to foreign courts, and if we yield to the States the collection of our revenue, what will remain of the Federal Government with which the people can identify their feelings or affections? In what will this Government consist? It will be a mere creature of the imagination--a political fiction. And, analogous to the fiction in the action of ejectment, we shall have to suppose its existence, and then bottom our proceedings upon that supposition. If I was hostile to our Federal Union, or wanted to prepare the public mind for a surrender of this happy system of Government, I would join in the hue and cry against this institution; I would support every measure calculated to destroy all confidence in and respect for this Government, both at home and abroad; I would endeavor to produce throughout the country, confusion and disorder, and a state of glorious uncertainty; then persuade the people to seek security and tranquillity under some other form of Government. The transition from a wild, factious democracy, to despotism, is often easy, and generally sudden. The extremes are very nearly allied. A Republican Government, guided by the virtue and intelligence of a nation, is the first of human blessings, but when directed by the angry, vindictive passions of party, the worst of which the imagination can conceive. A republic, to be durable, must inspire confidence and respect. Such instability, such variable, unsettled policy as now appears to be the order of the day, could not have been anticipated by any man blessed with a tolerable degree of faith in the success of this great republican experiment. Mr. President, I have ever been opposed to yielding to the commercial interest an undue influence in this Government, but I am unwilling to make an unnecessary and wanton attack upon them. Coming from an agricultural State, I am not disposed to increase the jealousies which unfortunately exist, and thereby weaken the ties by which these States are held together. I am sensible, too, how much the prosperity of the State I represent depends on a prosperous state of trade, and although the shock from the dissolution of this bank will be first felt in the commercial cities, it must immediately react to the extremes of the empire. I know many are under an impression that Federalists and British agents are to be the victims; but very different will be the result. I refer to the evidence detailed by the honorable gentleman from Massachusetts, (Mr. LLOYD.) But is it possible that an intolerant spirit of party has prepared us for this? Are gentlemen ready to injure their country, weaken our Federal Union, the sheet-anchor of our political safety, to reach their political opponents? I will not believe it. When I see around me some of the soldiers of the Revolution, actuated I am sure by nobler views; when I see the professors of a religion which teaches us to love our neighbors as ourselves, I cannot persuade myself that Christian charity, and all the noble, generous feelings of the human heart, are extinguished by this demon, party spirit. If there be a man in the nation who can witness with unfeeling apathy the distresses of his fellow-citizens, he would have figured in Smithfield in the bloody reign of Queen Mary of England, in binding heretics to the stake; or in the sanguinary time of Robespierre, in adding victims to the guillotine; but he is unworthy the blessings of a free Government. Sir, I address the Senate under circumstances discouraging indeed. I have been told, and on this floor, that debate is useless; that no man's opinion is to be changed; that I shall find verified in the decision of this question the sentiment contained in two lines of Hudibras--"He that is convinced against his will, is of the same opinion still." I cannot admit this. I know there are gentlemen fully sensible of the evils about to befall their country, without any obstinate pride to conquer, who would rejoice at being convinced it is in their power to avert them. Let me entreat them to pause and reflect, before they inflict a wound on their country's interest, under the influence of constitutional doubt; and if they err, I would ask them, would it not be more safe and patriotic to err in favor of the people? Permit me now, sir, to redeem this subject from the constitutional difficulties with which it has been encumbered. To form a correct opinion, we must retrospect the defects of the old Government, and ascertain the remedy which was anticipated in the present constitution. I believe it will be conceded that the great cause of the inefficiency of the former, was not because their principal field of legislation was too limited, but was owing to its dependence on the States for the means to carry their powers into effect. For the truth of this position, I appeal to the history of that day--to the candor of gentlemen who hear me. The present constitution was framed for national purposes, with ample authority to pass all laws necessary and proper for the attainment of its objects, independent of State authority, except so far as expressly made dependent by the constitution. The erroneous impressions with regard to this bank have arisen from ignorance of facts, relative to the practical fiscal operations of the Government, and from confounding an original, independent power, to establish banks and corporations, with a necessary auxiliary to the execution of the powers given. By the constitution it is expressly declared, that Congress shall have power to pass all laws necessary and proper to carry into effect the powers previously enumerated, and all other powers vested in the Government of the United States, or any department or officer thereof. Our power to create a bank is not derived by implication. No, sir. If this express delegation of power had not been inserted, we must have implied the authority to provide the means necessary and proper, &c. But the Convention, with a full knowledge of the defects of the old Confederation, and deeply impressed with the necessity of an efficient national Government, determined to exclude all doubt by granting to the new Government, in express and unequivocal language, ample authority to use all means necessary and proper for the attainment of the ends for which it was instituted. If a man was requested to look at the constitution and decide whether power is given to Congress to create a bank, or corporations generally, he would answer in the negative. This would very naturally be the answer of most men upon the first blush of the constitution. It is not pretended that Congress have power to create corporations as an independent proposition. The authority to establish a bank or corporations is only contended for so far as it can be fairly considered as a necessary and proper auxiliary to the execution of the powers granted by the constitution. The question of constitutionality depends upon facts, dehors the instrument, of which we must be informed before we decide, and which could not be ascertained before the attempt was made to give motion and energy to this political machinery. If the fact be ascertained, by the best evidence the nature of the subject affords, that a bank is necessary and proper to effectuate the legitimate powers of Government, then our power is express, and we need not resort to implication. To prove to the satisfaction of the Senate and the world, this material fact, will be my business before I request their assent to the position assumed, that Congress have an express power to incorporate a bank. To do this it is indispensable that we should understand the practical financial concerns of the Government, or have the information of those who do. We appropriate money for fortifications on the report of our engineer, Colonel Williams, and for the Capitol, &c., upon the report of Mr. Latrobe. To know how much timber or other materials are necessary for a ship or a house, you must understand the subject yourself, or have the information of those who do. For myself, I am ready to admit that I rely much upon the information and experience of others. To ignorant men, and those who do not profess to be fully acquainted with the nature and management of the national finances, the following evidence is presented. The first, and with many, perhaps the best, not heretofore particularly noticed, which I shall offer, is the Congress of 1781, which established a national bank, called the Bank of North America, during our revolutionary struggle, the utility and necessity of which were ascertained by the experience of that day. It is worthy of remark, that they created a bank under powers much more limited than ours. That act was not passed precipitately, but was the result of the most mature and deliberate consideration. I beg leave to read the preamble of the law which contains the opinions of that Congress with regard to the utility and necessity of a National Bank. "Whereas Congress, on the 26th day of May last, did, from a conviction of the support which the finances of the United States would receive from the establishment of a National Bank, approve a plan for such an institution, submitted to their consideration by Robert Morris, Esq., and now lodged among the archives of Congress, and did engage to promote the same by the most effectual means; and whereas the subscription thereto is now filled, from an expectation of a charter of incorporation from Congress, the directors and president are appointed, and application has been made to Congress by the said president and directors, for an act of incorporation: and whereas the exigencies of the United States render it indispensably necessary that such an act be immediately passed--Be it therefore ordained," &c. This act passed on the 31st day of December, 1781. And here permit me to observe, that this National Bank, styled the Bank of North America, was not produced by British influence or party spirit. No, sir, the little, slandering, intriguing partyism of the present moment was unknown to the patriots of that awful period. They had no party but their country--liberty and independence were their objects. Their souls were fired with a noble, a generous enthusiasm, on which Heaven looked down with pleasure. It appears from the journals of the Congress of 1781, that the members from every State were unanimous in favor of a National Bank, except Massachusetts, Pennsylvania, and Virginia--the two members from Massachusetts voted against it, the two members from Pennsylvania were divided--of the four from Virginia, Mr. Madison alone voted against it. Here it is evident that, in the very infancy of our Republic, before indeed it could with propriety be said to be born, when every bosom glowed with enthusiasm for liberty and a pure disinterested patriotism, a National Bank was not thought that dangerous, dreadful monster, which the very wise and exclusive patriots of 1811 are endeavoring to represent it to the American people. And the construction given to the grant of powers in the Articles of Confederation by the Congress of 1781, is strong evidence of our right to establish a bank under a grant of powers much more ample, and with money concerns vastly more extensive and complicated. The next evidence I shall adduce for the consideration of the Senate, is the opinion of the late General Hamilton, appointed by President Washington, the first Secretary of the Treasury; whose province and duty it was to superintend the national finances. His attention was therefore particularly directed to the subject, and, in a very able report to the first Congress, assembled under the new constitution, he recommended a National Bank. Although opinions have been imputed to this gentleman very foreign to my feelings and notions about Government, yet he has ever been acknowledged, by the candid and liberal of all parties, one of the first American statesmen. For reasons, which it is unnecessary for me to assign, I will not press his opinion upon the attention of the Senate, but will introduce other and perhaps less exceptionable testimony. The Congress of 1791, which incorporated the present bank, merits the highest regard. It was composed of the most enlightened and distinguished men in America, many of whom had been members of the convention, and were fully apprised of the defects of the old and the objects of the new Government. A large majority of both branches voted in favor of the bank. They were not divided on the question by party. Many who have continued with the Republican party under every Administration voted in favor of this bank. Although different speculative or abstract political opinions were then entertained, yet the spirit and passion of party had not diffused itself so generally through the nation as at a subsequent period. The next authority in favor of this bank, and one which must at all times and on all occasions command the highest respect, is no less than our immortal Washington. He was President of the United States in 1791, when this bank law passed. After it had received the sanction of both branches of the Legislature, with that circumspection and prudence which regulated his conduct through life, he consulted the able men who composed his Cabinet Council on the constitutional question; they differed in opinion; he heard their arguments for and against the measure; and, after full consideration, approved the law. I cannot yet, sir, take leave of this very important testimony in favor of the bank. The opinion of our Washington has the strongest claim to our confidence. Let us pause before we disregard his solemn advice. This is the hero who led our armies to victory; this is the Washington, who, at the close of our Revolutionary war, disbanded a disciplined army in the bosom of the Republic, and voluntarily exchanged the splendid robes and ensigns of military power for the plain, humble garb of a private citizen. This Washington, who continued an American, a Republican in heart and in sentiment, until summoned to the mansions of bliss; yes, sir, this illustrious departed hero, this practical statesman, has solemnly declared to the American people that a National Bank is a necessary and proper auxiliary to the execution of the national powers. The last authority I shall particularly notice in support of this institution, is the opinion of the present Secretary of the Treasury, Mr. Gallatin. If this gentleman cannot boast of the military laurels which have adorned the brows of the patriots I have mentioned; as a statesman and faithful public servant, he stands inferior to none. Mr. Gallatin, from his first appearance on the theatre of public life, has been considered by all parties an able financier. At a very early period the finances of the United States became the subject of his particular attention and inquiry; the result of which was a treatise, published in 1796, called "Gallatin, on the finances of the United States," in which he gives a decided opinion in favor of this bank. I rely much on his opinion at that period, because it must have been the result of conviction, and not of any party feeling or consideration, as he was then in the minority, and continued in it until the Administration changed. His report to the Senate during the last session of Mr. Jefferson's Administration, and his letter to the committee, show, that time and experience, so far from changing, have confirmed him in the opinion he first formed on the subject; to which I might add every Administration and almost every man practically acquainted with our money concerns. Is not this mass of evidence sufficient to substantiate the facts upon the existence or non-existence of which the constitutionality of this measure depends? I put the question to the candor and good sense of gentlemen, whether they are not satisfied, in the language of the constitution, that a National Bank is necessary and proper to effectuate the legitimate powers of the National Government? If they answer in the negative, I can only say, he who will neither regard the suggestions of experience, nor believe the report of the great political disciples who have gone before us, would not believe though one were to rise from the dead. And what is the answer to all this out of doors? Why, that we are not to be governed by the information or opinion of others, however well acquainted with the subject; we are so self-sufficient as to disregard the best lights which can be presented to us. The cry is up to the hub, down with the bank, huzza for the party! So long, Mr. President, as I shall be honored with a seat in the Senate of the Union, I am determined to respect my station and my own feelings and character too much to be driven along by any such idle, ridiculous clamor. As I heard much said about absolute, indispensable necessity, I may be pardoned for giving what I consider the sound interpretation of the words "necessary and proper" in the constitution. This idea of absolute, indispensable, &c., must have originated in an excessive jealousy of power or a decided hostility to the Federal Union. This instrument was framed by and for the people of the United States, and, in the language used, was certainly intended to be understood in that sense in which it is used and understood by them generally. If you ask a plain man what are the necessaries of life, he will answer, something below luxury and extravagance, what is calculated to afford him reasonable comfort. Neither a house nor a bed is absolutely or indispensably necessary to a man's existence; he could live in a camp and sleep on boards, or on the ground, yet, the common sense of mankind would respond, they are necessary and proper. If a man had a journey to make, either to Richmond, in Virginia, or Lexington, in Kentucky, although every person would pronounce a coach and six superfluous and unnecessary, all reasonable men would say, he ought to have a horse or a hack, but it will not be pretended that either are indispensable, because he could perform it on foot. If a gentleman from Baltimore gives his agent instructions to provide every thing necessary for an East India voyage, what would he expect? Certainly that he should avoid unnecessary expense, but would consider him acting within the pale of his authority if he procured only what was reasonably necessary and proper, or, in other words, what was fairly suited to the master and crew, and well calculated to enable the vessel to reach her port of destination. That interpretation is correct which best accords with the common sense and understanding of mankind. It must, therefore, be evident that the only question as regards the constitutionality of the measure to be decided is a question of fact, and that is, whether a National Bank is reasonably necessary and proper, or fairly suited to, and calculated for, the collection of our revenue and the management of our money concerns. And this fact appears to be admitted by the gentlemen opposed to the bill, for their arguments are predicated upon the probability that the State banks will answer the national purposes. This is a complete surrender of the constitutional objection; for, if banks be necessary and proper, it follows that we have a constitutional power to create them, and it will be a mere question of expediency whether we will use State banks or a National Bank. My colleague (Mr. CLAY) has asked for the congeniality between a bank and the collection of our revenue? The argument in favor of using State banks shows it, but let the use hitherto made of the bank answer the question. Is not a bank a proper place for the deposit and safe-keeping of money--more so than the custom-house? Is it not a convenient agent for paying and receiving money? Through the agency of this bank our revenue, or the greater part of it, has been collected, our financial transactions done, and public money transmitted to such places as the necessities of the Government required. The revenue collected at Boston, Baltimore, or any other port, is paid, if required, at New Orleans, Natchez, St. Louis, or any other place without risk or expense. The money in the bank and its branches is payable at such of them as the convenience of the Government may require, and, by this arrangement, we can command the whole of the public money in any quarter of the Union without risk or expense. The operations of this institution have been confined to the seaboard. The principal bank is at Philadelphia, with a branch at New York, Boston, Baltimore, Washington, Norfolk, Charleston, Savannah, and New Orleans. At all which places, the Government has considerable revenue to collect. No branches have been extended into the interior. It has been connected with our fiscal arrangements at all the places to which it has been extended, and may be fairly deemed a convenient, necessary, and appropriate auxiliary to the management of the national concerns. It is said that the revenue is collected at many ports where none of these branches are placed. This is true; the bank and branches are fixed only at the principal seaports, where a large amount of revenue is collected. Every one draws into its vaults, subject to the demands of Government, the revenue collected at the less important ports in the same quarter of the country. Boston being the commercial emporium of New England, the Government, by the agency of the branch bank there, is enabled to draw to that point most of the revenue received at the numerous ports in that quarter of the Union. The repeated sanctions this bank has received from the different Administrations, and especially from Mr. Jefferson and the Republican party, by authorizing the extension of a branch to New Orleans, and selling one million of the stock, the property of the United States, to British subjects, for four hundred thousand dollars more than the nominal amount, is indeed strangely accounted for; gentlemen say the Government were bound to fulfil their engagements, and that the charter, being in the nature of a contract, was sacred. I had thought the fashionable doctrine was, that an unconstitutional law was wholly null and void. It has been held by some of the States. However plausible the answer to the argument of acquiescence, it furnishes no apology for a positive confirmation. Permit me to assimilate a common case between individuals to the case before us: a man in Washington executes a joint power to five trustees in Kentucky to collect his debts, settle his land business, &c., and authorizes them to take all steps necessary and proper to effectuate the trust or power; in the progress of the business a measure is suggested as necessary, about which there is a diversity of opinion among the trustees. A majority, however, decide that it is within their authority; the principal is informed of it, does not complain or disavow, but positively and by the strongest implication assents to the construction given by his agents. In such a case there would be but one opinion. In 1791 a National Bank is proposed to Congress; they differ as to the constitutionality, a large majority decide in favor of it, the people and the States are informed of the measure, the States do not protest, nor do the people complain; many of the States pass laws to protect the institution, it receives the confirmation of three or four different Administrations, and particularly of the one composed of men originally opposed to it; it violates no positive provision of the constitution; no mischiefs have been produced, but great convenience and advantage have been experienced by the Government and community. I ask whether, under such circumstances, the question ought not to be considered settled? Is no respect due to the opinions of our predecessors? Is a question of construction never to be at rest? Why is a judge, sworn to support the laws and constitution of the country, bound by a train of decisions contrary to his own opinions? Because the good, the peace, the tranquillity of society require it. The conduct of a court, as well as every department of Government, must be regulated in its course in some measure by a regard for the public weal. It is worthy of remark that, notwithstanding all the fuss about implied and incidental powers--if you except the sedition law, which was supposed to violate a positive provision of the constitution--the same practical construction has been given to this instrument by every Administration of the Government. Indeed, the sphere of national legislation has been more enlarged under Mr. Jefferson's than any other Administration. All parties have found that the national vessel could not be navigated without sails, rigging, and every thing necessary and proper. Whence was derived a power to pass a law laying an embargo without limitation? There is nothing in the constitution about embargoes. Whence did we derive a power to purchase Louisiana, and incorporate it with the good old United States? There is no express delegation of power to purchase new territory. On these subjects the constitution is silent. I have approved both. No State can lay an embargo, or acquire new territory. Our power to perform these acts results from the nature of the national sovereignty created by this constitution. The Republican Administrations have no pretensions to the approbation of the people on the ground of having restrained any latitude or liberality of construction. Their claim to the public confidence is founded on very different considerations. They have repealed the internal taxes, paid a large part of the public debt, purchased Louisiana, and preserved to the nation the blessings of peace. For these acts, they have, I believe, the thanks of the nation. They have mine, most sincerely. Great stress is placed on the twelfth article of the amendments to the constitution, which declares the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. I must confess that I cannot discover what influence this can have on the bill under consideration, or any other measure which may be proposed. It appears to me to have been adopted rather to quiet State jealousies and popular fears than with a view to produce any positive effect, for the inquiry must ever be, Is the power given? And if granted, it is not retained. The supporters of this bill do not pretend to usurp any power retained by the States or the people, but contend that the power to pass the bill is expressly delegated, if the facts assumed are true. It is not pretended that our fiscal concerns can be managed with gold and silver. If our territory was of no greater extent than Rhode Island, Delaware, or the city of Philadelphia, gold and silver would answer the purposes of the Government, but it would require a number of pack horses and wagons to transport the public money in gold and silver, over this immense country, to the different places where it is wanting. Our extensive commerce, and the great extent of this empire, renders a paper medium necessary. Is the power to create this paper medium, or national currency, an attribute of State or national sovereignty? I put the question to the candor of gentlemen, and solicit a serious answer! The argument of my honorable friend from Georgia against the power of the States to authorize the emission of bank paper, founded on that part of the constitution which declares that "No State shall emit bills of credit," acquires great additional force, when these bills of credit are made to assume the character of money, for national purposes. In the same article the power to coin money is expressly prohibited to the States, and in the catalogue of cardinal powers granted to this Government, is that to coin money. It will, perhaps, be contended that this only applies to gold and silver, but if that be admitted to be the literal meaning of the words, still it is evident that what shall be the national currency, whether specie or paper, is a proper subject of national legislation. No gentleman will be so absurd as to insist that any State or States ought to coin the current money of the United States. That the power of the States to establish banks may be questioned with at least great plausibility, is perfectly clear, but as this banking power has been so long exercised, as the National and State banks have conducted their operations very harmoniously, as no serious evils call for national interference, I am not for disturbing the existing state of things; it is better, perhaps, that the banking power should be divided between the States and the United States. That bank paper, if good, is in fact money, although not made a legal tender, cannot be denied. The currency of this bank paper of the United States, although made by law receivable in payment of revenue, rests upon a much better foundation than an act of Congress. Its national character, the extended operations of this bank from Boston to New Orleans, have given it credit with the people of every part of the empire, more than the bank paper of any particular State can be expected to have; so that, by common consent, this money coined by the national bank has become the current money of the United States. I hope we shall never be driven to the necessity of compelling our citizens by law to receive our paper. We should so guard and regulate our banking operations as to make the national paper at least equal to gold and silver, in every quarter of the Union. If this bank is removed, the Secretary of the Treasury must nationalize the bank paper of the great importing States; for, I presume, Congress will never decide what State paper shall be used by the officers of the General Government. Most of the public money is now collected and deposited in the Bank of the United States; if that is destroyed, the Secretary of the Treasury is to deposit in the State banks, and with him is the power of selection--a power and patronage greater than any ever exercised by any officer in this nation. The deposits of the public money are sought after with great avidity, by all the State institutions. He can deposit the whole in one, or divide it between two, or three, or all the banks in any one place. He can change them at pleasure. He may, with great apparent fairness and propriety, make it a condition with every bank where deposits are made that they shall appoint a certain portion of the directors of his nomination, and through them he can reach the credit of any man who may have accommodations in it. It is true we have now a man at the head of the Treasury who may not be disposed to abuse this power, but we may not always have such an officer. This immense power and influence may be exercised in an invisible manner, and, of course, without responsibility. Is this republican? It was not a few years ago. I have always understood that one of the strongest and most popular objections to the Federal Administration was their disposition to increase Executive patronage. Although this subject has received much false coloring through the country, by charges of British influence, &c., I did not expect to hear it from an honorable senator of the United States--it has not indeed been positively asserted, but hinted in such a manner as to make an impression on the community. Some stale circumstances connected with the British treaty have been very unnecessarily lugged in to increase the prejudices against this bill. It has been insinuated, that British influence, operating through this institution, has prevented the Government from taking strong measures against Great Britain; but in what manner this has been effected, gentlemen have not been good enough to explain. Did it prevent Mr. Jefferson from taking a war course? For I believe it is generally understood that he was opposed to a war. Has it operated upon the present Executive? Such a suggestion will not be made. I have, during my service here, given a fair and faithful support to the Administration, and I have certainly voted for stronger measures than they were willing to accept. It is due to the 10th and 11th Congresses, who have been so much abused, to state that their course, as regards the question of peace or war, has been in perfect unison with the views of the late and present Presidents. Let it not be inferred that I am disposed to find fault; I believe when we consider the very extraordinary state of the foreign world, and retrospect the embarrassing circumstances which have surrounded us, the course pursued by them ought to be deemed substantially correct, certainly so as respects their leading object, which has been to avoid making this country a party in the present war. If I was disposed to censure, it would be for not making an effort to chastise some of the British armed vessels which lay in our waters after the affair of the Chesapeake, in open contempt of the President's proclamation; if a single vessel had been driven out or compelled to strike her colors, it would have healed the wound inflicted on the national pride and feeling, committed by the Leopard. That this Government should have an influence with foreign Governments proportioned to the interest their subjects have in our funds, is probable, but how this interest gives them an influence here I am at a loss to perceive: foreigners cannot even vote in the appointment of directors. If there is any reality in this idea of foreign influence through this institution, why did gentlemen permit the present stockholders to be incorporated into the bill introduced last year? And why was not a provision inserted to prevent foreigners from purchasing additional stock? Gentlemen say the embarrassments in Philadelphia could not have been occasioned by the Bank of the United States, because they continue to discount as usual. If I recollect the evidence--and I hope to be corrected if I mistake it--it was this: that the calling in of ten per cent. on their debts occasioned such a pressure, that they were prevailed upon to extend their discounts until the ultimate decision of Congress should be known. I have heard it seriously urged that the evils and inconveniences to be experienced from its dissolution, prove it to be a dangerous institution; the same argument would prove that the Government ought to be destroyed. Nothing, indeed, seems too absurd for the human mind to seize upon, when under the influence of passion or misguided zeal. My honorable friend from Georgia has been reminded of the Macedonian phalanx. I trust, sir, we shall ever be found associated with a phalanx American, Republican, in heart and sentiment. I will not sacrifice the interest of my constituents for fear of being called hard names. The epithets of quidism, quadroonism, or any other ism which malice or policy may suggest, shall not drive me from the course called for by the public good. I am proud that I represent a people just, generous, and independent, not to be carried away by unmeaning clamor. Before they discard a public servant, they will view him both on a political theatre, and in the walks of private life. They know, too well, that those are not always the best Christians who sing hallelujahs on the house top, nor have they forgotten the celebrated Sempronius, who, on the approach of Cæsar, thundered war in the Roman Senate, and at the same time was secretly co-operating with the traitor to overthrow the liberties of the Roman people. Deeply impressed, Mr. President, with the opinion, that the rejection of this bill will give at least a temporary check to the prosperity of the rising State from which I come, I shall give my negative to the motion to strike out the first section. Yes, sir, not only the interest, but importance of that State in the Union is about to be sacrificed. When I look beyond the mountains, and remember that Kentucky has nurtured me almost from my cradle, that she has bestowed on me her choicest honors, my bosom is filled with emotions of gratitude, which impel me to say on this, as on all other occasions, Kentucky I am only thine! SATURDAY, February 16. _Bank of the United States._ The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States, passed on the 25th day of April, 1791;" the motion to strike out the first section being under consideration. Mr. SMITH of Maryland said, that in seconding the motion to strike out the first section of the bill, he had pursued a course which, in his opinion, was the most correct. When I first took a seat in Congress (said he) the course of proceeding was to fix the principle by resolution, and, that once fixed, to send it to a committee to report a bill. By a motion to strike out the first section the principle will be tried, and the Senate, if the motion fails, will go into a discussion of the provisions of the bill. This I conceive a better course, than, for the Senate to go into discussion of the details of a subject which would probably be ultimately rejected on the general ground of principle. The gentleman who introduced this subject spoke with great animation and with great feeling against the press or presses which have undertaken to give their opinions upon this great and important question. He spoke with much warmth, and said that whoever knew him would not believe that he would permit himself to be driven out of his opinion by any man or set of men. There is no man, sir, the least acquainted with the gentleman from Georgia (Mr. CRAWFORD) but will believe his declaration. But another result may be apprehended, that those who feel so great an offence at the freedom the press has taken, may be driven into the opposite course by the irritation of their feelings. Certainly those feelings must have been extremely strong with the gentleman from Kentucky (Mr. POPE) to have induced him to terminate his speech with an oration hostile to the press. Are the gentlemen from Georgia and Kentucky the only Senators who have had their feelings wounded by the conduct of the press upon this subject? Sir, if the gentleman's opinions and sentiments have been censured by one description of presses, he may find consolation in having been greatly eulogized in others. For more than a year those on the same side of this question with myself have had their opinions tortured into every shape to destroy them in the estimation of the people, not only in this session but during the last. Sir, there are some presses in the Union which could not exist, whose papers would not be read, but for the discussion of individual character. Is any advantage to be derived from complaining of this? It results from the nature and temper of our Government, and the best way I have ever found to treat it is with silent contempt. He who does otherwise engages in the contest at a great disadvantage, and will seldom come out the victor. In the same presses of which those gentlemen complain, I have seen them both eulogized, and properly, for their conduct on the subject of the embargo and West Florida questions. If the press be an evil in this respect, we must submit to it; those gentlemen who take a high and prominent stand must expect to be noticed. Sometimes gentlemen will be put down by the press, but their conduct being correct will more frequently be written up by its abuse. It has been objected that this question is discussed on the ground of party; and the gentleman from Georgia, as I understood him, said, that this had been made a party question elsewhere, and might be so here. [Mr. CRAWFORD said he had mentioned no place, but had said that this might be made a party question.] I understood the gentleman to say, said Mr. S., that this may again be made a party question. But for this observation of the gentleman the subject of party would probably not have been introduced at all; and we must indeed shut our eyes or we cannot avoid seeing that this is made a party question, at least on one side. Do you see one gentleman, one solitary gentleman of one party, discriminated generally as a Federal, who does not vote for this measure throughout? Do you see one public body in Philadelphia or New York which has a majority of Federal directors or agents, which has not come before you with memorials drawn up with the ingenuity of lawyers, to impose on your judgments? Have not the same party prepared memorials and got the subscription of every one of their caste, bringing forward nearly the same number of petitioners as they have of Federal voters? Have they not done so in Baltimore? Of that city I would say as little as may be, for being a manufacturing as well as a commercial city, it has stirred up an animosity in some gentlemen against it not easily accounted for. In Baltimore, on a warmly-contested election, the Federal party mustered eight hundred and fourteen votes, all they could parade with their every exertion. To the petition for the renewal of the charter of the bank, there are eight hundred and forty odd signatures! They have gained some few since the latest contest. Is this coincidence of members, this exclusively Federal petitioning, no mark of party? They have also got one public body in Baltimore to memorialize in favor of the bank; the rest were not to be intimidated by the threats of the Bank of the United States. What, sir, have the other party done? Have they disturbed the quiet of either House? Have they brought forward the mass of their voters as signers to petitions? No, sir, they have trusted the subject to their Representatives, confiding in their disposition and ability to speak their sentiments. The representation of New York, Philadelphia, Baltimore, Norfolk, and Charleston, in the other House, have opposed the renewal of the charter. Every city high in estimation as a commercial city is opposed to the renewal of the charter, except Boston. This speaks with a strong voice what are the feelings of the people; stronger evidence cannot be presented to the human mind. Far be it from me, sir, to endeavor to work up the feelings of party spirit on this occasion; but the thing itself was one of the first causes which created the present parties, and separated man from man and brother from brother. This measure was originally brought forward and adopted when the representation in Congress was not bottomed on an actual supposed census of the United States. Sixty-five members composed Congress then, which was a representation taken by accident. If a proportionate representation had been given to the States according to their population, the law probably would not have passed. The States of North Carolina and South Carolina had each five Representatives, being thus placed on an exact equality. Now, North Carolina has twelve, South Carolina only eight. What was the vote then? Out of sixty-five members thirty-nine voted for the bill. It was not, as my friend from Kentucky said, a subject fully discussed, or carried by a tremendous majority. The bank having been formed, it may not be improper for me to take some view of its beginning and its operation. At first its operations were confined to Philadelphia; it extended its branches some time afterwards to Boston, New York, Baltimore and Charleston. Wherever it extended its influence, dissension commenced; wherever it placed its foot it became absolutely necessary for the States to erect another bank to counterbalance its pecuniary and political influence. In Philadelphia it began to oppose certain people and turn down their paper. The State of Pennsylvania, in defence of its own citizens, created the Bank of Pennsylvania. Here was a check upon its pecuniary and political operations. I believe I am not mistaken when I say that soon after it commenced in Boston a new bank was established there, from what cause I know not. In Baltimore, sir, it soon taught us a lesson, and we met the lesson as other States had done. Charleston and New York acted in a similar way. Operating as the bank did on the politics of the country before its effects were neutralized by competition, man being man, place him where you will, those concerned in the direction of the bank felt power and exercised it. When the British treaty was pending before Congress, the president and directors (as I am informed) themselves carried about a memorial to Congress in its favor, with what view and with what effect may easily be conceived. In Baltimore (until we were able to check them by other banks) its political influence was great. Prior to the great struggle between the parties, in 1798, they did permit one democrat to be within the walls of the sanctuary (as a director), a gentleman of as much respectability and independence of character, as any one of the direction. He was, however, (immediately after daring to give his vote in favor of a democratic candidate,) put out, and since that time no man of democratic principles has been permitted to enter its walls as a director. Men must shut their eyes to the fact of this being a party institution, when they see that no democrat has been admitted to the direction of the bank but in this city and New York, where the collector was admitted a director for the purpose of protecting the public money at the instance (it is said) of the Secretary of the Treasury. Can we shut our eyes so as not to see that men hostile to the democratic party, and of course to the success of the administration of the Government, are not the most proper persons to have charge of its pecuniary concerns? I would have been very unwilling to have gone into this part of the subject; but when the gentleman from Kentucky, scarcely able to restrain his rage, cried out, party! party! I was bound to show that it was not those with whom I act who had any agency in pressing the subject of party into the present discussion. The gentleman from Kentucky reprobates the system of petty mischievous intrigue for the purpose of carrying measures through Congress. No man, sir, despises or contemns such conduct more than I do. But on whose side has this intrigue been? It is necessary to put the saddle on the proper horse. Have we gone to insurance companies or corporations of one kind or another? Have we intrigued with the people to induce them to take sides with us? No, sir, we have been tranquil; we wanted no aid of that kind. Have we sent persons here to intrigue with members, or a deputy to remain here the whole of the last and present session, to explain to Congress the effect of putting down the bank, and threaten them with destruction and ruin to the United States if they passed the measure? No, sir, we have had no one here. Have we stirred up the people into town meetings to aid us by memorials? No such thing, sir. Have we called meetings and induced honest mechanics to come here to influence Congress by idle fears, impressed upon them by those who are interested, to tell a tale that shall answer our purposes? No, sir, we have pursued no such course. Respectable merchants, I observe, form a part of the bank deputies--for what? To represent the late fall of the price of flour as a consequence of the danger of the bank charter not being renewed, and thereby to alarm the minds of members. I am sorry that men of such respectable character did permit themselves to come here on such an errand. I think I have seen in the papers, that one of the manufacturers (now here) on being asked to sign a petition for the renewal of the charter for twenty years, said he would rather cut off his right hand than sign it; he wished only a renewal for a short time to give the bank an opportunity to wind up its affairs. If this statement be true, and of its truth I have no cause to doubt, it shows the depth of that intrigue which sent this gentleman here, through the instrumentality of his excellent character, to get a renewal of the charter for a period which he never contemplated. These are intrigues for which men ought to blush, and from which, I thank God, we are exempt. At the time these deputies arrived, there were three mechanics of Baltimore here, of character inferior to none, and of wealth inferior to few in Philadelphia, and who would have given a different view of the subject, if they had been asked to appear before the committee. I thought it unnecessary--I wanted no assistance of that kind--no species of intrigue. They did, however, declare, sir, that granting this charter would be a death-blow to the politics of the State of Maryland. They did believe the renewal would be injurious to them, for neither they nor many of the manufacturers of Baltimore had received much advantage from the branch bank; they had their own banks from which they generally received accommodation. Another species of intrigue is carried on, to wit, by pamphleteering. The press is groaning with pamphlets--for what? To teach the minds of members on this question, the necessity of renewal and probability of destruction to the nation, if their demands are not complied with. Our tables are covered with pamphlets of that tendency. Has there been any thing of the kind on our part? There is scarcely an evil which has not been attributed to the embargo, and which is not now, with as little justice, attributed to the expected non-renewal of the bank charter. Great failures have lately taken place at New York; bills of exchange on London, to a large amount, have returned protested, and the drawers are not able to pay the holders, and to the present critical situation of the bank some gentlemen attribute the distress brought upon those who have suffered by these failures and protests. But, Mr. President, what is the real cause of those failures? They are confined principally to New York, and may be attributed to the following causes: It is natural for men born in Great Britain to entertain predilections favorable to a commerce with that country, their connections, as well commercial as of family, are there; their credit is there; and, from those causes, the house which has failed, and carried so many others with it in its fall, has probably directed the principal part of its commerce to England; they have, no doubt, shipped cotton and tobacco, the trade in which being in a great measure confined to Great Britain, the natural consequence has been, that the markets of England were completely glutted; tobacco, except the very fine Virginia, scarcely paid the charges of freight and commission, and the loss on cotton must have been nearly fifty per cent. The consignees, under those circumstances, refused to pay the bills drawn upon shipments of those articles. The bills returned protested, and ruin to the American shipper has been the consequence. At any other time the English merchants would have accepted the bills, and held the cargoes for a better market; but, at that time, ruin stared every man in the face. No man in London knew who to trust, and very few would enter into engagements which they saw any difficulty in meeting. No censure ought to be attached to the American shipper, for, by the usage of trade between the United States and Europe, the American merchant is entitled to draw for two-thirds the amount of his cargo on transmitting invoices and bills of lading with orders for insurance. Other causes have existed to cause the present distress in New York and elsewhere, to wit, the seizure, detention and confiscation of property in Denmark, Prussia, and France, of ships and cargoes to the amount of many millions, on the proceeds of which cargoes merchants calculated to meet their engagements at home, and to meet their bills drawn on London. For, sir, the merchants who make large shipments to the continent, order the greatest proportion of their proceeds to be remitted from thence to London, and, on the expectation thereof, draw bills on their friends there. Disappointment has been the consequence of such seizures and losses; protests of such bills and ruin has followed. But, Mr. President, we might with as much propriety attribute the late great failures in England and on the continent to the expected non-renewal of the bank charter, as those which have happened in New York, or the present distress of the merchants of the United States. The returns of the bills protested, to so large an amount, of course destroyed the merchant's credit at bank; he failed, and, by his fall, has caused the ruin of others. When a great house fails, it is like a game of nine pins; knock one down and it will probably carry with it four or five others. We have been told, Mr. President, in case the charter should not be renewed, that we shall find in future great difficulty in obtaining loans. What loans, I ask, have Government ever received from the Bank of the United States? I recollect, when I first entered Congress, that Government were indebted for loans made from the bank, but I also recollect that the bank complained of her loans as an inconvenience, and that Congress took the earliest measure in their power to pay them off, and have, since that period, made no new loan from the bank until that made payable the first of January last. I will not inquire whether even that loan was necessary, but I will venture to promise, sir, and will give any security that may be required, that the State banks will give a similar accommodation, to wit: If the Secretary of the Treasury will deposit with the State banks two millions five hundred thousand dollars of the public money, (the amount of the late loan,) they will lend Government to the same amount, and thus do as the Bank of the United States has done, _lend you your own money_, and very kindly receive from you an interest of six per cent. therefor. We are told that the bank has lately lessened the discounts of individuals ten per cent., and that the merchants are thereby greatly distressed. Is that a fact? If it is, and great distress has ensued therefrom, what will be the distress of the merchants if the bill now before you shall pass; and if, agreeably to its provisions, Congress should (at any time hereafter) call on the bank for the loan of four millions promised by the bill? If, sir, a lessening of their discounts one-tenth per cent. creates distress, what will be the consequence, when, by a loan of four millions, called for from the bank, the bank shall be compelled to lessen the discounts four-tenths? But, sir, the promise to lend four millions from a bank of ten millions is idle; it is worse, it is deception on the face of it. The loan, if made, would not be from the bank but from the merchants, whose discounts would thereby be lessened, and whose ruin would follow. We are told that, if the charter of this bank be not renewed, and the funds of the United States be deposited in the State banks, it will be extremely unsafe, because it is said we can have no control over them. And, I wish to know, sir, what control we have over the Bank of the United States? None, but the same as we may have over the State banks. We cannot check the operations of the Bank of the United States, and if they obtain this charter, they will know that they can have their charter renewed whenever they please; so that, the fear of a non-renewal of their charter will have no operation on them in future. You will have a much greater control over the State banks, because you are under no obligation to put money in them, and you can change them whenever you think proper; the danger of losing the public deposits will always be a sufficient control over their conduct. The security of the State banks is doubted, however; and we are told, very gravely, indeed, that there is much more security in the mother bank, and her nine children, than in ten independent banks. This I must deny. I should, as a merchant, place more confidence in ten independent houses than in one with nine branches. MONDAY, February 18. _Bank of the United States._ Mr. BRENT said he had not the vanity to believe, after the subject had been so fully discussed, that he should be able to shed any new light on it; but having been instructed, by the Legislature of the State which he had the honor to represent, to vote on constitutional principles against the bill under consideration, and as he was reduced to the painful necessity of going counter to those instructions, it seemed to him to be indispensably necessary that he should submit to the Senate the grounds on which he acted. It is (said he) a most painful situation in which I stand in relation to the Legislature of Virginia, in being compelled to vote in opposition to their will, more especially as it is a prevalent opinion with many whose opinions are entitled to great respect, that instructions are obligatory on a Senator. This question is one which has never been settled, or even fully deliberated on. Instructions, when heretofore given to Senators, have generally been in accordance with the sentiments of the Senators, and only given to add the greater weight to their opinions. If called upon definitely to pronounce with regard to instructions on questions of expediency, I might be under some difficulty as to what course to pursue; because, although there is no clause in the constitution to that effect, I am under a strong impression that, according to the principles of our Government, there is much reason to believe that the respective State Legislatures should have such a right; but on a constitutional question (whatever may be the right of the State Legislatures in other instances) the right of instruction may be denied, in my judgment--that is, so far as to be imperative on the Senator. To give a vote in such a manner as in his estimation to inflict a vital wound on the constitution, is more than the Legislature of Virginia, or any other State Legislature in the Union, can compel me or any other Senator in the United States to do. The resolution of Virginia is bottomed, not on the ground of expediency, but on the principle that the constitution prohibited Congress from granting the bank charter in the first instance; that it now prohibited it, and therefore, because it was unconstitutional, the Legislature have instructed their Senators in Congress to oppose it. Now, sir, although I shall not immediately and directly violate the constitution by voting against the bank, yet, if I vote against it when I believe it constitutional and necessary, it must be known that I vote in conformity to the instructions of the Virginia Legislature; and so far as my vote goes, it will warrant and sanction that interpretation of the constitution which the Legislature of Virginia has given--which interpretation, in conscience, I believe to be erroneous. Therefore, though in ordinary cases the instructions of a Legislature may be imperative, (I will not determine that question,) I conclude that they cannot be so when they require of a Senator to commit either a positive or implied breach of the constitution, or to vote in such a manner as to warrant such interpretation of the constitution as will deprive it of an essential attribute. Virginia has the physical force, but has she a moral right to violate the Constitution of the United States? If she has it not, can she give it to her Legislature? If her Legislature possess it not, can they give it to a Senator? Can the Legislature give me a moral right to violate the Constitution of the United States, which I have sworn to support? I believe not, sir; and that, in the situation in which I stand, their instructions ought to have no operation on the vote I am to give on the subject under consideration. The first question, whether the General Government, when it first came into operation, did not possess the power of creating a National Bank, is the primary object of investigation. In objection to this it has been said, that to carry into effect an enumerated power is one thing, and the right to incorporate a bank is a distinct power. Those who take this ground say that the creation of a National Bank is an original, independent, and substantive power. It is not sufficient, say they, to show that it is a convenient instrument to carry into effect an enumerated power, because it is an independent authority of itself, and the genius of our Government prohibits the derivation of any powers by implication with scrupulous limitation. It is true, sir, that our Government, being an emanation from the existing State governments, the rational construction is, that all power not given away is retained to them or to the people. If that construction does not result, then a positive amendment, which has been made to the constitution, has infused this principle into it. I therefore admit in its fullest latitude the construction that all powers not given away are still retained; yet I still contend that even in a Government like ours, there are some resulting powers. Or by what right do we create a military school? We have a right to raise armies; but we can have an army without a military school. Yet it is constitutional to create such an institution, because every given power implies rights inferior appertaining to the powers granted. We lay an embargo--is there any clause in the constitution authorizing us to lay embargoes? No, sir; we have a right to regulate trade, and we have a right to lay embargoes to protect it. We have a right to provide for arming and disciplining the militia. Under this authority we build armories. Is there any provision in the constitution directing it? We have erected forges and even purchased ore banks. These are inferior powers, necessarily resulting from the greater powers granted. But here gentlemen find the great difficulty. The creation of a corporation, say they, is an act of sovereignty; it cannot be used as a mean, because it is a sovereign act. Why, Mr. President, every law passed is _quoad hoc_ a sovereign act. A law incorporating a military school is as much an act of sovereignty, as to the particular subject to which it relates, as an act incorporating, a bank. We create a military school--for what purpose? Because the sovereign authority has power to establish an army, and the power to create a military school is inseparably connected with and necessarily appertains to it. We establish a navy--we also establish a marine corps. There is no clause in the constitution giving that power, but we take it as inseparable from the power to create a navy, because the exercise of the greater implies every subordinate power necessarily connected with it. The great stumbling block, however, is, that this is one of those independent, original, and substantive powers, which cannot be given by implication. Blackstone says, "municipal law, thus understood, is properly defined to be a rule of civil conduct, prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong." Agreeably to this definition, every law passed by a deliberative body is an act of sovereignty as to the subject to which it relates. The establishment of a marine corps is as much an act of sovereignty as an act incorporating the Bank of the United States. The only question is, whether it be necessarily incident to the enumerated powers given to the General Government. Those who criticise most accurately on the constitution and most unwillingly concede resulting powers, will admit them to a certain extent even in our Government. The only question is the immediate and necessary connection of the means used with the object intended to be attained. In inquiring then, sir, whether or not, at the first promulgation of the constitution, when it came into existence, it was intended that Congress should possess the power of incorporating the Bank of the United States, let us inquire whether there was any possibility of carrying into effect with any tolerable convenience and advantage the several provisions of the constitution, unless this power exists. It is said that you do not possess the power, because it is attempted to be derived by different gentlemen from so many different parts of the constitution. Now, Mr. President, I have never before understood that a capacity to derive a title from several different sources gives you less title than if derived from one source alone. I derive the power from the whole context of the constitution, although gentlemen seem to think that the title is invalidated in proportion to the number of sections in the constitution from whence we derive it. In order to avoid confusion of argument in examining this question, I will derive it from only one source at present, though I believe others equally give it by a necessary construction. At the time the constitution came into existence, I believe there were but three banks in the United States; none south of Philadelphia, and all of very limited capital. The Constitution of the United States gives the power to levy and collect taxes. Is it possible to imagine any system so convenient for the collection of this revenue, and sending it to the seat of Government, as that of the agency of banks? I am not inquiring whether the State banks can do it; but I say that the framers of the constitution must have had under consideration the state of things at the time when the constitution came into existence. At that time there was not one bank south of Philadelphia, and the banks which existed were very limited in their capital, and their paper had limited circulation. Congress, in such a state of things, then, has the power of levying and collecting taxes conferred on it, and yet Congress has not the power to create banks to aid in the collection of its taxes, notwithstanding a clause to make all laws necessary and proper for that purpose is contained in the constitution. No gentleman will say that the agency of banks is not necessary in some way or other in collecting the revenue. I admit without them you could have carried on our fiscal arrangements in an awkward and cumbrous form, but was that the intention of the constitution? When the power to collect taxes was given, it was intended to give all the means necessary to carry this power into execution. It was not to execute this power in a cumbrous form, but with the greatest facility with which the power is susceptible of being wielded. Now, is it possible that the constitution contemplated that the revenue should be collected and transmitted here, subject to all the risks and accidents and inconveniences that attend the transportation of specie? It is impossible. But all this doubt has arisen from its being a separate and independent power, although it is no more of that character than any other law passed to execute the enumerated powers of Congress. In a word, Mr. President, it is admitted by all who have spoken on this question, whether for or against the bill under consideration, that the agency of a bank or of banks affords the greatest facility and security of any plan that can be devised for the collection of a revenue, and for its transmission to your Treasury. It is admitted that no bank or banks of a capital or of sufficient circulating paper throughout the United States adequate to this object, did exist when the constitution was first formed, promulgated, or adopted. It is admitted that to levy and collect taxes is one of the enumerated powers of Congress. It is admitted that Congress has all power necessary and convenient to carry its enumerated powers into execution. It is admitted there is no express clause in the constitution prohibiting the establishment of a National Bank. If these principles and facts are admitted, does it not demonstrate, beyond the possibility of doubt, this unquestionable result, to wit: that as Congress is to levy and collect revenue; that as the agency of banks affords the most certain, speedy, and convenient means by which a revenue can be collected; that as neither, at the period when the constitution was made, promulgated, or adopted, banks of sufficient capital, or with paper of sufficient circulation, existed for the collection of the revenue, and its transmission to your Treasury; that as there was no positive clause prohibiting a National Bank in the constitution; that as Congress was to have all power necessary to carry its enumerated powers into execution; that as the convention who framed, and the people who adopted the constitution, must have had in view our then existing institutions, and the then general state of society, it was the intention of the convention who formed the constitution, and the people who adopted it, to give to Congress the power of establishing a National Bank. If at the time of adopting the constitution it was necessary and proper that Congress should possess it, for the exercise of any of its enumerated powers; if the foregoing result is undeniable, and I think it is, I would interrogate, if Congress, on the adoption of the constitution, possessed a power to establish a National Bank, what has since deprived that body of the power? I, Mr. President, can discover nothing which has. One argument, much confided in by gentlemen who have opposed the present bill, is, not that banks are not necessary to the collection of the revenue, but that State banks will answer. In return, I insist that no State banks did exist when the constitution was first formed, therefore the power to create a National Bank is necessarily given in the power to levy and collect taxes. To this it is replied that to create a National Bank is to legislate by implication; it is a separate, substantive, and independent power; to levy a tax is one thing, to make a bank another. I answer, to levy a tax is one thing, to create an officer for its collection another. By this kind of chop-logic we may prove any thing unconstitutional. I ask, when you levy a tax, if you do not provide officers for collecting it. I levy a tax and create a bank through whose instrumentality I mean to collect it; from the same authority by which I appoint a collector, I have a right to create a bank through whose instrumentality I mean to receive and transmit it. There is no clause in the constitution saying you may appoint officers for the collection of the revenue specifically; but the right to appoint officers to collect revenue is derived from the power of levying a tax, from which also may be derived the power of establishing a bank, if it be the best mode of collecting the revenue. It is said you may collect this tax by means of the State banks. Very well, sir, I say you may collect the revenue by means of State officers, and upon the principle that you cannot establish a bank to collect the revenue, because the State banks can collect it, I say that the State officers can collect our taxes, and if your argument is just, you cannot appoint any other officers. The constitution authorizes the President to appoint persons to fill all offices established by law, but says not a word about appointing officers to collect the tax you levy specifically. Upon the construction gentlemen contend for, they might say, because no power is expressly given to appoint officers of the customs, or for your taxes, and it is possible to collect the revenue by the agency of the State Governments, and nothing should be done by the United States authorities which can be done by the States, therefore these collectors of the customs or revenue should be such as are appointed by the States for State purposes. This kind of reasoning, sir, cannot be admissible, and is in hostility with a most manifest principle of the constitution, as it is evidently a prominent feature of that instrument that the General Government should have within itself all those powers necessary and convenient for the execution of its enumerated trusts, entirely free and independent of the interference and agency of the States, their officers, or ministers. It is said that the corporation, which it is proposed to recharter, independent of the facility it affords to Government in the collection of the revenue, has also particular advantages given to it; that it is a monopoly; and what right, it is asked, has Congress to grant a monopoly? I will ask, in return, when an officer is appointed to collect the customs, has he not a salary and emoluments? Is not every office in law called a franchise or a particular privilege? If the officer who has these emoluments, privileges, or franchises, (call them what you will) receives these in consideration for his services, have you not the power to hold out inducements to associated bodies of men to form an institution from which the public may derive benefit, not with a view exclusively to their monopoly and benefit but on account of the advantages to be derived from it by the public? The honorable gentleman from Kentucky, (Mr. CLAY,) with his usual ingenuity, spoke of the enormous evil and the danger to our liberties that is to be anticipated from giving the power to erect corporations, which he says is an original power, and has given being to institutions which have swelled to an enormous magnitude. The example of the East India Company and the South Sea Company were spoken of in an alarming, impressive, and ingenious manner. But, I ask, sir, if the State Governments do not possess this gigantic power? I see nothing to restrain them more than the General Government. I see that the only supervisors as to the State Governments are the people themselves, who are also the supervisors of Congress, who have also the invidious jealous eyes of the State Governments constantly upon them, as is illustrated in the conduct of some of the States on this very question, and who combined would guard this power from abuse by the General Government much more than the people alone will guard against abuses by the States. It is a visionary mode of reasoning to argue against the possession of power from the abuse of it. The gentleman may as well tell us that we may raise armies to so monstrous an extent as to crush our liberties; and, therefore, we ought not on any emergency to raise an army. He may as well say the creation of a military school, which is as much and no more a resulting power than the one in question, is giving to Congress a great substantive independent power to create a vast engine, under the name of a military school, which may swell to such an immense importance as to make it an instrument to swallow all the liberties of the country. So as respects sites for forts and armories, and ore banks, powers exercised by implication, the gentleman, from the unlimited indulgence he gives to a gloomy and foreboding imagination, may say, you may purchase the territorial rights of the States until you destroy their sovereignty. There is no end to the extent of such reasoning. We must rely in some degree on ourselves, on the vigilance of the State Governments, and on the discretion of the people. When the whole body politic is so corrupt that there are no eyes on our rulers to see when they transcend the powers of the constitution, all is lost, and no paper reservations can save us. Mr. President, I am ready to admit that where a measure obtains, that inflicts a violation on our constitution that is unquestionable, palpable, and notorious, however frequently and however solemnly this measure had been sanctioned, however long it had been submitted to and endured, would not be considerations with me of any importance or create one moment of doubt. Error, however repeated and submitted to, is error still, and every occasion should be sought to get rid of it; but on an occasion in the origin of which the constitutional question was doubtful, when men of the purest integrity and most illumined intelligence might pause and differ and doubt, I should imagine that such case once acted on should never again be touched, unless considerations of irresistible importance lead to such a measure; and I imagine that every man of candor and intelligence who weighs with due deliberation the question under consideration, will at least admit, if the measure is not certainly constitutional, it is at least of that description of character I have last mentioned. In such an instance as this, will it be said that after this measure has been sanctioned by Congress on full deliberation and debate; after the bill establishing this bank had received the approbation of the President, who reserved his signature to it till the last moment permitted by the constitution, and after he had viewed the question with all its bearings in every attitude it could be presented, after full consultation with his Cabinet Ministers and others of high intellectual character; after the law thus sanctioned by the Legislature and the President has been acquiesced in and practised on for the space of twenty years, when it has been considered inviolable, and corroborating laws passed during the administration and legislation of different dominant political parties; when those laws have been sanctioned by the solemn adjudication of all our judges, both of the General and State Governments; to suppose that all these considerations are to have no influence as to putting to rest a constitutional question which was doubtful in its origin, is to be skeptical and scrupulous beyond all reasonable bound. If Congress had no right to incorporate a bank, was it not an act of usurpation in the President and Congress to pass laws punishing individuals for the forgery of its paper? Nay, more, Mr. President, when we inflict death for the support of institutions Congress had no right to create, and for the violation of laws the constitution prohibits that body from enacting--(and under the denomination of each of the political sects into which this country is divided, agreeable to the principles now contended for by gentlemen, such laws have been passed)--are not the Executive which sanctions, the Congress which passed, and the whole body of our Judiciary, both of the General and State Governments, which enforces such unconstitutional measures, and under their surreptitious authority inflicts death upon our citizens, worse than usurpers? Are they not murderers? Yes, Mr. President, I reiterate, are they not murderers? And are we prepared to pronounce so heavy a denunciation on our predecessors, on ourselves, and the other great Departments of our Government? Are we ready to inform the American people that this body and all their constituted authorities have sported with the lives and illegally shed the blood of our citizens? My colleague was foreman of the jury that pronounced sentence, or that found a verdict, on the famous or rather infamous Logwood, for forgery of the paper of the Bank of the United States. This verdict was confirmed by the judge of the court, and the criminal punished agreeably to the judgment. Is a measure of such weighty and awful import, so solemnly and deliberately acted on and decided, and multifarious other decisions of the same description, to have no influence on the decision we are about to give respecting the constitutionality of establishing a National Bank? If they are not, then gentlemen view the subject through a very different medium than that through which it is presented to my vision. Then, in my judgment, Mr. President, our situation is alarming indeed. To recapitulate: I derive the power to create a National Bank, when this constitution came into existence, from the situation of society, and our legal institutions at that time, and the difficulty, as things existed, that the revenue could be collected with advantage in any other way than by the agency of a bank. If this reasoning be deemed erroneous, I insist that the constitutional power of Congress to create a bank was in the first instance doubtful, and the principle having been recognized, and having received every sanction the Government could give, and practised on for more than twenty years, is not now to be called in question. Admitting that on both these points my views are erroneous; say that the establishment of the bank, at its commencement, was improper, still, if it be demonstrated that the existence or re-chartering of the bank is indispensable, or highly expedient at present, to the due exercise of enumerated rights of Congress, that which was improper or even perhaps unconstitutional at first, because it was not necessary, becomes constitutional and proper, because now expedient or essential. Congress is clothed by the constitution with a variety of delegated rights. Now, admitting that the establishment of a bank in the first instance was not necessary for the due exercise of the legislative rights bestowed in any one of these enumerated powers, if our predecessors in office, by the creation of a bank, which at best was an improper institution, because not necessary, have placed our fiscal concerns in such a situation that it cannot be put down without great injury to the revenue, which Congress is bound to levy; and collect, without injuring our commerce, without impairing our public credit, without lessening the public welfare, all of which Congress is bound to provide for and protect; if this can be demonstrated to be the probable result of pulling down the bank at this period, I would ask whether that institution, which was improper at first, because not necessary, does not become proper, because almost indispensable at present? In construing the Constitution of the United States, when legislating on the enumerated powers of Congress, I lay down this rule of construction: that the only limitation to the power of Congress is either some positive or implied prohibition in the constitution itself, or the exercise of an honest and sober discretion. If, therefore, there is any reason to believe, at the present period and existing state of things, that by putting down the bank your revenue will be greatly impaired, your commerce will be injured, the public credit lessened, all of which Congress is to protect; does not such a state of things make it proper that the bank, which ought not to have been created, because not necessary, now ought to be continued because indispensable? It may here be said, that I am varying the constitution if I say that a thing is proper to-day which was not proper five and twenty years ago; that this vibration will always keep the constitution in an uncertain state. I say, no. My doctrine is subject to no such accusation; the principles of the constitution are uniform and unalterable. It is an uniform and unalterable principle, that Congress have the power to lay and collect taxes; they have the same positive, unchangeable right to exercise all the enumerated powers, the only rule of construction relating to them being that the means you use have a necessary relation to the power on which you legislate. If the means be not enumerated, you exercise discretion as to the means, having a regard to the existing state of things when you legislate concerning them. The same means may be necessary and proper now, which would not have been twenty years ago. You change the means to attain the end, but the end itself, the enumerated power in the constitution, remains unchanged. As long as the constitution exists, you must select the means most proper for executing the enumerated rights at the precise moment at which you legislate respecting them. If this be the true construction of the constitution respecting the recharter of the bank, the question merely resolves itself into an inquiry how far such a measure is at present expedient. To determine at this moment whether or not it be constitutional, or in other words expedient, to incorporate the Bank of the United States, I am to say whether, under existing circumstances, in the present state of society, situation of trade and revenue, the preservation and continuance of this institution is essentially necessary. If it be essentially necessary, we have a right to recharter the bank. I have been precise in stating this view of the subject, because it has not before been taken by any other gentleman. TUESDAY, February 19. The credentials of JOHN CONDIT, appointed a Senator by the Legislature of the State of New Jersey, for the term of six years, commencing on the fourth day of March next; and of WILLIAM B. GILES, appointed a Senator by the Legislature of the State of Virginia, for the term of six years, commencing on the fourth day of March next, were severally read, and ordered to lie on file. _Bank of the United States._ The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th day of February, 1791. Mr. TAYLOR.--Mr. President: Although much time has been consumed in the discussion of the subject before us, and the ground completely occupied by those who have gone before me, yet the importance of the subject, the immense magnitude of the unhappy consequences likely to result to the nation from the rejection of the bill on your table, compel me to offer to it all the support in my power. Indeed, sir, to this sense of duty to the nation is superadded a very sacred, and to me indispensable duty--my duty to the State which I have the honor in part to represent, as well as another duty, which from the course the debate has taken, is not to be disregarded; I mean, sir, the duty which I owe to myself. I cannot, as other gentlemen have boasted they can, put my hand into my drawer and pull out the instructions by which I am to be directed on this important subject. The State of South Carolina is a very large stockholder in some of her State banks, and if a selfish policy, contracted to the narrow sphere of the unique advantage in dollars and cents of the Government of that State--in contradiction and disregard of the great body of her own citizens, and the citizens of the rest of the States in the Union--could have weighed a moment with her Legislature, I too might have been instructed. Let me not be understood, Mr. President, as drawing any comparison between the conduct of the State of South Carolina and the conduct of the great and leading States who have acted otherwise; but I must and will tell of the things that I do know. I rejoice, sir, that the State which I come from has, in this instance, been actuated by that magnanimity and patriotism which on all former occasions has distinguished her conduct; that neither selfishness, nor party rage, nor a spirit of intolerance, has induced her to counteract or embarrass the National Legislature in its pursuit of the great object of its institution, the good of the whole. I hope it will not be considered as savoring of egotism when I say that my appointment to the very honorable station I now hold was unsolicited by me. That my sentiments on the subject now under consideration had been by me unequivocally expressed at the last session of Congress, and were well known to those who appointed me. Nay, further, after my venerable and respected predecessor had resigned his seat here, and had declined, also, his appointment for the ensuing six years, pending the election of a successor to him, and when my name was held in nomination, a resolution was offered, similar to those which we have heard so much talk about, proposing to instruct the Senators of that State to oppose the renewal of the charter of the Bank of the United States. This resolution, as I am informed, lay on the Speaker's table when the election was gone into. I was elected, and the proposers of the resolution had not power nor influence enough to raise it from the table on which it lay, and it died stillborn at the end of the session; and if I were to make an inference at all on these transactions, I should suppose I was tacitly instructed to vote for the renewal of the bank charter. But I seek not the avoidance of responsibility. It is here, sir, in my own bosom, I have instructions paramount to all others. My beloved country has rested the matter here, and my gratitude is superadded to all other moral obligations operating on me to perform this trust, and to execute this duty with faithfulness. I find the authority of Congress to grant this charter in the same sections of the constitution which the gentlemen who have gone before me have pointed out to you. In section seven, clause first, power is given to Congress "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States; but all duties shall be uniform throughout the United States." Clause second gives power "to borrow money on the credit of the United States." And, in the last clause of said section, power is also given to make all laws which shall be necessary and proper for carrying into execution the foregoing powers vested by this constitution in the Government of the United States, or any department or officer thereof. Let us understand the meaning of the words _necessary_ and _proper_, to the last-quoted clause, for upon a correct knowledge of these depends, in my opinion, the correctness of our conclusions on this subject. The word _necessary_, in its technical and legal sense, in the meaning affixed to it in common parlance, established by usage, custom, reason, and the common law of the land, is different and distinct from the signification of the same adjective derived from the substantive _necessity_, as used by Hobbes, Hutchinson, Hume, and the other metaphysicians of the last century. It is well known that they used the substantive _necessity_ as synonymous with the word _fate_, and which necessity, according to the opinions of one party, controlled omnipotence itself. This necessity was supposed by them co-existent with the Deity itself, not prospective nor discretionary, bending in one way, and in one way only, all substance, all matter, and all spirit. This meaning of the word is only to be found with these metaphysicians and philosophers; but in our law books, in the daily and hourly use of the word in common conversation, it has no such meaning. When the old Congress passed the conditional charter--which I admit they had not a delegated power to grant, but which is fully in point, both as to the signification of the word, and, also, of their opinion of the necessity, and even indispensableness of a bank for the administering the fiscal concerns of the nation--in the conclusion of the preamble they say that the exigencies of the United States render it indispensably necessary to pass the act, &c.; and in the laws passed during that period, when this Government was in the habit of following the English custom of beginning the laws by a preamble, you find the word _necessary_ used as synonymous to _expediency_--practical expediency, (see _Laws of the United States_, vol. 1, page 247; _idem_, page 276,) in fact, among frail mortals with fallible judgments like ours. With any beings endued with less than omniscience, the word _necessary_ must be only applicable to the honest judgment we can make up concerning the subject to which we apply it; in other words, it is resolvable into that sound discretion with which, as moral agents, we are in the first instance intrusted by our Maker, and in the instance now before us, we are intrusted with by the constitution and by the citizens who have sent us here to transact their business. But the rigid _necessity_ which our opponents wish to enforce on us, this metaphysical necessity, must, from its very nature, be immutable; it must be unique, and could not exist in a greater or less degree; and, therefore, the word joined to it in the constitution (_proper_) could have no meaning at all. The laws, to be passed, must be necessary, is the only one way given under heaven by which you are to effect the end desired; in other words, the law must be imposed by Fate. It is perfect nonsense to say that there is a latitude left with us to judge whether such a law is proper or improper. I have, I think, brought the meaning of the word _necessary_ to the level and within the comprehension of frail human intellect. The signification of the word _proper_ I take to contain the description of the measure or law to which it is applied, in the following respects: whether the law is in conformity to the letter, the spirit, and the meaning of the constitution; whether it will produce the good end desired in the most ready, easy, and convenient mode, that we are acquainted with. Great stress is laid on that amendment of the constitution which says, that all power not expressly granted shall be retained, &c. Either the general clause I have relied on gives power or it does not; if it did not give power, why was this amendment made? And if it did, and this power was offensive, why was it not stricken out when the amendment was made? But if it expressly gave power, which I contend, its being suffered to remain is proof that it was not the design of the amendment to take away the power given. Could not the Territory of Columbia have been governed without erecting a single corporation in it? I don't mean well governed. But was there that fatal necessity; that command from Jove, "Ye fates fulfil it, and ye powers approve," to erect corporations? This legislation to erect corporations being, according to our opponents, _sui generis_, not of the ordinary kind, and only to be exercised where the express authority is given by the constitution, I ask gentlemen to show the clause in the constitution which expressly gives us the power to perform this sublimated act of legislation in this Territory any more than in any other part of the United States; and yet at this very session we have sent an armful of these high acts. The shelves of the office of the Secretary groan under the pile of charters we have granted. I said it was easy to prove that the broad grant given to Congress to legislate for this Territory in all cases whatsoever, was restricted and paled in by the constitution. Congress cannot make the duties here on imports less or greater than elsewhere in the United States--imports and taxes must be equal, &c.--nor deprive the citizens thereof of the right to a trial by jury, nor grant them titles of nobility; and yet the incidents here alluded to would come under the description in the clause "of all cases whatsoever." In truth, sir, there is not a scintilla of the spirit, nor a single word or letter of the constitution, that loses its power and sanction upon our conduct in legislating in this particular. There is no more a power given us to legislate _ad libitum_ on this Territory, nor to derive therefor powers by implication, than is given us in the laws we pass for the whole nation; and if this power, _sui generis_, of creating corporations, is properly defined by our opponents, they ought to go back to the works of yesterday, as well as to those of twenty years' standing, in order to introduce their new order of things. I might here draw a comparison of the tried scheme of using the United States' Bank, and the untried scheme of using State banks in aid of the operations of the National Treasury; but I should only be saying with less force what has been so fully and so conclusively said by the gentlemen who have preceded me. Suffice it to say, that for safe-keeping, for transmission and payment of the funds to any part of the nation, and for enforcing the punctual payment by the debtors to the customs, by addressing to those debtors the arguments to the sense of honor and shame, and also to their interest, to wit: by denying them credit in the bank on failure in punctuality--all these have been afforded to the Government without its incurring therefor one cent's expense. Are we sure the State banks can or will do this? I beg pardon of the Senate for detaining them on topics not new. As this is made a case of conscience, I deemed it necessary to be thus particular. I have no hesitation in saying, we have the right to act on this subject, inasmuch as I think the bank is both necessary and proper for the purposes above referred to. To me it appears that this power is expressly granted; we derive it not by implication; but our opponents, in fact, are pressed to the necessity of using implication to come at the denial they set up against the exercise by Congress of this power. I say, further, that this institution is necessary and proper for carrying into effect another general power, viz: The power to borrow money on the credit of the United States. It is acknowledged on all hands that there is not specie enough in the nation, if applied solely to that purpose, to pay our annual impost. The operations of the Bank of Columbia in transferring the revenue derived from a part of Virginia (and of the land funds from the westward,) and of the Manhattan Bank in performing the same office in respect to the collections in Connecticut, have been dwelt upon by the honorable Senator from Maryland, (Mr. SMITH.) His arguments drawn from the facts would have been more conclusive if he could have instanced the same facilities afforded to the Government between banks disconnected by the effect of that neighborhood circulation and of that course of trade very apparent in the instances he has produced. But it is not conclusive at any rate. There is a neighborhood medium of circulation, (the State bank paper,) and there is a national medium, (the United States paper.) The latter, under the present state of things, corrects the operations of distant banks and renders their transfers easy; but, deprived of this, would any of them, situated at four and five hundred miles, or at one thousand miles' distance, agree to make these transfers for the Government free of expense? Could they, for instance, transfer the solid bullion belonging to the United States from Orleans to Boston or Philadelphia, without our affording compensation for freight, insurance, &c.? I have witnessed the advantages of this national medium in the State I live in; and in the months of autumn, when strangers are fearful of venturing to Charleston, our western friends, rather than carry the hard dollars, are in the habit of giving two or three per cent. for bills of the Bank of the United States. Destroy this national medium, you insulate the State banks, which are so far asunder as not to be within the influence of the neighborhood medium of circulation. The stroke of our dreadful wand disconnects the ligament by which they are bound together in their distant operations. Mr. PICKERING.--I will now, Mr. President, make some observations on the main question under consideration. Whether Congress have the power by the constitution to renew the charter of the Bank of the United States? It has been said that the power to incorporate a bank for the United States is a substantive and original, and not a derivative or implied power. This has been repeated, but I have heard no arguments in support of the position; it is naked assertion. It has also been called "act of sovereignty;" as if to alarm and deter us by its awful magnitude. But, sir, the sovereign power of Congress is sometimes exercised on subjects of comparatively little moment. A few days since we passed a bill to authorize the erection of a bridge; and another, to change the name of an individual, to enable him to inherit an estate. The power of Congress is sovereign to all the purposes of the constitution. They can lay and collect taxes, duties, imposts, and excises; borrow money, regulate commerce, and make all needful rules and regulations respecting the territory and other property of the United States. And they have the power to make all laws necessary and proper to carry the foregoing and all other constitutional powers into execution. When proposing to exercise this general power, in any case not expressly mentioned, we have to consider whether it be "necessary and proper." It has been said that "necessary" here means indispensable; something without which a particular power expressly granted cannot be carried into execution. But, sir, I see no ground for this interpretation. In the affairs of a nation, or other community, whatever the public good requires to be done, is necessary and proper to be done. It is a moral, not an absolute necessity. It is necessary for me to be here in my place, because it is my duty to be here. Necessary and proper are opposed to unnecessary and improper. Congress should do no act unnecessary and improper; but, like State Legislatures, do whatever is necessary and proper to attain the objects for which they are respectively constituted. In determining whether any proposed measure be necessary and proper to carry into execution any power expressly given to Congress, we have to consider whether that measure has a just or useful relation to the end. For instance, the constitution having prescribed no mode of collecting the revenues, it rested in the discretion of Congress to adopt such a mode or such modes as should appear to them best adapted to that object. Instead of appointing custom-house officers in the large commercial cities and towns, where a banking establishment could be supported, Congress might there have erected banks, as the most certain, punctual, and cheap mode of collection. Suitable officers of a bank might have performed all the duties of entering and clearing vessels, and all other duties pertaining to the custom-house, without any charge to the public; the deposits of the public moneys so collected in those banks, upon which the usual banking operations might be carried on, yielding an adequate compensation for all the services so performed. The public revenues, when collected, must also be safely kept. An experience has demonstrated that, of all depositaries, banks are the safest. And the same experience has shown that, as the public moneys are required to be frequently transferred, for the public expenditures, from one State to another, the Bank of the United States, with its branches, has furnished the best mode of transfer; it being effected with despatch, with certainty, and without any risk or expense to the United States. The gentleman from Kentucky (Mr. CLAY) asked, if banks are necessary for collecting the public revenues, why give them any other power? The answer is, that it is the essential nature of banks, which renders them so peculiarly fit to collect the revenues. The merchants, whose bonds are lodged in the banks for collection, are also borrowers of money from the banks; and if they fail of paying their bonds, as they become due, their credit will fail; they can obtain no more loans until their bonds are paid. This has just been presented to our view, in the most striking manner, by my colleague. "To borrow money," is another of the great powers expressly vested in Congress. And in this, as in the power first considered, no mode of borrowing being prescribed in the constitution, Congress are to devise and provide the means in their judgment most sure, expeditious, and ample, to obtain loans. And this was one of the great objects for which the Bank of the United States was originally incorporated. The gentleman from Virginia, near me, (Mr. BRENT,) and the gentleman from South Carolina, (Mr. TAYLOR,) have, in very forcible language, displayed the impolicy of depending on State banks or individuals for loans, in public emergencies. At such times, these banks and individuals may be most hardly pressed by their usual customers. To suffer the Bank of the United States to dissolve, and to have recourse to State banks, will be so far going back to the condition of the United States under the articles of Confederation, when our Union was but a rope of sand. When the pressure of the Revolutionary war was over, indeed, while that pressure remained, Congress in vain made requisitions on the individual States; no money, or none in any measure adequate to the public exigencies, could be obtained. After the war, when the public treasury was empty, Congress importuned--implored the States, individually, to grant the power to raise a revenue from commerce, to defray the current expenses of the General Government, and to fulfil the public obligations, but the power could not be obtained. States, deriving large revenues from commerce, chose to retain them for their own treasuries. It was this helpless, forlorn condition of our country, which forcibly convinced the nation of the necessity of forming a new system of Government; and our present Government was the fruit of that necessity. "To regulate commerce" is a third great power vested in Congress. And it is conceived that the exercise of any power well adapted to give safety, facility, and prosperity to commerce, must be comprised in the power to regulate it. Hence the erecting of light-houses has been mentioned as an instance in which an implied power, incidental to the regulating of commerce, has been exercised. But it has been said that this power is expressly given in another part of the constitution; that by which Congress is vested with exclusive legislation over the district which is the seat of Government, and over places ceded to the United States "for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." But if we had no commerce, no navigation, light-houses would not be "needful buildings," they would be of no use whatever. Hence it is clear that they have a direct relation to commerce and to nothing else; and, therefore, the erecting of them is properly adduced as an instance of the exercise of a power implied in the general express power to regulate commerce. The safety and facility of commercial operations was also greatly to be promoted by means of a general currency which should have equal credit throughout the Union. This has been accomplished by the notes issued from the Bank of the United States, under the authority of Congress, exercising the power incidental to that of regulating commerce. A fourth great power, which I mentioned to have been vested in Congress, is that of "making all needful rules and regulations respecting the territory and other property of the United States." This "other property" consists partly of money. And, as Congress have power to make any regulations concerning it which are needful, that is, which may, in their opinion, best promote the general welfare, this money may be (as some of it has been) vested in bank stock; and with the truest regard to its safety and good management, in the stock of a bank erected by Congress, of which they may have a suitable inspection; and where it may safely deposit the public revenues, there to await the public demand; and, in the mean time, usefully aid those banking operations which give facility to commerce and to public loans. But as an evidence that the constitutionality of the act to incorporate the Bank of the United States was at least doubtful, we have been told by the gentleman from Maryland, (Mr. SMITH,) that President Washington doubted; that his mind was in suspense to the last moment, when the act was to be approved or disapproved. That while the then Secretary of the Treasury, (Mr. Hamilton,) a very great man, maintained the constitutional power of Congress to erect that bank, another man, (Mr. Jefferson,) equally great, then Secretary of State, and the Attorney-General, (Mr. Randolph,) a distinguished lawyer, maintained the contrary doctrine--that Congress had not that power. It is true, sir, that Washington, cautious and circumspect beyond any man I ever knew, did suspend his decision to the last day allowed him by the constitution. The confidence with which the Secretary of State and the Attorney-General supported their opinions on this question, was sufficient to excite in the President the greatest caution. Both were lawyers, and they raised many legal objections. The written opinions of these gentlemen were (as I have been well informed) put into the hands of the Secretary of the Treasury two days before it was necessary for the President to decide. And the reasoning of Mr. Hamilton, in his written argument, enabled the President to decide with satisfaction; with a full conviction of the constitutionality of the act. The following are some of the objections offered by the Secretary of State: He said--"that the proposed incorporation (of the bank) undertakes to create certain capacities, properties, or attributes, which are against the laws of alienage, descents, escheat, and forfeiture, distribution, and monopoly. And that nothing but a necessity, invincible by other means, can justify such a prostration of laws which constitute the pillars of our whole system of jurisprudence, and are the foundation laws of the State governments. "Washington, sir, was not a lawyer, and who can wonder that his fair mind was alarmed by such a solemn declaration? That it was kept in suspense by the assertion, that the act for establishing the bank would overturn the pillars of our whole system of jurisprudence, and the foundation laws of the State governments? But, sir, it required only the knowledge of a lawyer at once to overturn these objections. The following are some of the remarks of the Secretary of the Treasury: "If these are truly the foundation laws of the several States, then have most of them subverted their own foundations. For there is scarcely one of them which has not, since the establishment of its particular constitution, made material alterations in some of those branches of its jurisprudence, especially the law of descents. But it is not conceived how any thing can be called the fundamental law of a State government which is not established in its constitution, unalterable by its ordinary legislature." "To erect a corporation, is to substitute a legal or artificial for a natural person; and, where a number are concerned, to give them individuality. To that legal or artificial person, once created, the common law of every State, of itself, annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence. It is certainly not accurate to say, that the erection of a corporation is against those different heads of the State laws; because it is rather to create a kind of person, or entity, to which they are inapplicable, and to which the general rule of those laws assigns a different regimen. The laws of alienage cannot apply to an artificial person, because it can have no country. Those of descent cannot apply to it, because it can have no heirs. Those of escheat are foreign from it, for the same reason. Those of forfeiture, because it cannot commit a crime. Those of distribution, because, though it may be dissolved, it cannot die." Sir, I beg leave to add a few explanations. By the laws of most, perhaps of all the States, aliens are not permitted to hold real estate; but in all they are free to hold personal property of every kind, and particularly bank stock. The law of escheat relates to the property of a citizen who dies without heirs, near or remote, and without a will. In such case his property falls to the State. But instances of escheat do not occur perhaps twice in a century in any State, and, consequently, is of trifling moment. Although a corporation cannot commit a crime, it may violate the rules prescribed in the law for its establishment, and thus incur an immediate forfeiture of its charter. Or, if for such a violation of its fundamental law, or any mismanagement of the institution to the public injury, its charter be not forthwith taken away, the State may refuse to renew it. As to the law of distribution, that operates when a person dies intestate. But though a corporation cannot die, yet the individuals to whom its property belongs will die; and their bank property, equally with their other property, becomes liable to the law of distribution. One of the injurious consequences of destroying the Bank of the United States has been stated to be, the withdrawing of seven millions of dollars from the active capital of the United States, and transmitting it to Europe, where that portion of the bank stock is owned. To this it has been answered, by the opposers of the bank, that these millions will not be withdrawn, but transferred from the United States' Bank to banks of the several States. How then, sir, shall we get rid of that dangerous influence of foreign stockholders which the same gentlemen urge as a reason for not renewing the charter of the Bank of the United States? Sir, it is well known that money in Europe is less valuable than in the United States. That moneyed men there are glad to loan their money at an interest of five per cent, or less, while in these States the legal interest is six per cent. And a multitude of our citizens find their account in employing that foreign capital, paying an interest of six per cent., by which, in the course of trade, they gain ten, fifteen, or twenty per cent.; that foreign capital, in the hands of our merchants, has resembled the five and the ten talents, wherewith they have gained other five and other ten talents. The distresses which will follow the dissolution of the Bank of the United States, especially in the great commercial cities, have been forcibly described in the plain testimonies of the committee of mechanics and manufacturers from Philadelphia--a committee selected wholly from the democratic party; distresses which were sufficient to move a heart of stone. And why should this bank be dissolved? It has been said that the State banks are competent to all the necessary operations of the general bank. If the contrary had not been shown, it might be answered, that the Bank of the United States was incorporated when there were only three banks in the United States; one in Philadelphia, one in New York, and one in Boston. These were inadequate to the necessities and accommodation of the General Government and of the citizens. To supply this deficiency, it was necessary to erect the National Bank; and the dignity, honor, good faith, and credit of the United States stand pledged for the renewal of its charter. The institution having been well conducted, and found in the highest degree useful and beneficial to Government, and to the citizens at large, it ought to be continued. Individual citizens and foreigners became stockholders on a well-grounded expectation of the stability of the Government. It was in this just expectation that foreigners, Englishmen, purchased of our Government, itself, its remaining shares of the public stock in the Bank of the United States, and at an advance of forty-five per cent.; so that, for every hundred dollars laid out by the Government in the purchase of bank shares, the United States received of these foreigners one hundred and forty-five dollars. And how was it possible for these foreigners to conceive the Government capable of destroying the work of its own hands, and of reducing their property to one hundred dollars a share, for which, but eight years before, they had paid the same Government one hundred and forty-five dollars? WEDNESDAY, February 20. _Bank of the United States._ The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th day of February, 1791. Mr. CRAWFORD said he regretted extremely, that at so late an hour, he was constrained to throw himself upon the indulgence of the Senate, especially as the subject was so much exhausted by the able and animated discussions which had for so many days attracted their attention. Before I enter upon the few remarks which I feel it my duty to make in reply to the numerous comments which have been made upon the observations which I had the honor to submit to the consideration of the Senate, at the commencement of this discussion, permit me, sir, to acknowledge the liberality and indulgence with which those observations have been generally treated. In the course of the few observations to which I intend to confine myself, it shall be my endeavor to exercise that indulgence towards others which has been extended to me. The gentleman from Kentucky (Mr. CLAY) complains of the committee, because they have listened to the representations of two delegations from the city of Philadelphia who presented memorials to the Senate, who referred them to the committee; and because the committee have, in his opinion, given an adventitious importance to their representations, by the minuteness and by the pomp and parade with which they have been detailed to the Senate. It will be recollected that the committee did not seek the post which has been assigned them by the Senate, nor did they desert it after it was assigned to them. The object of referring petitions to committees is to collect that information which the Senate ought to have before it acts, and which in its collective capacity it cannot obtain. It has always been the practice of committees to permit the petitioners to be present at their meetings, to make such explanations, and to give such information touching the subject of their petition, as they think connected with it. It is the duty of committees to detail to the Senate the information which they collect, to enable the members to take a full view of the subject upon which they are called upon to act. The committee in the present case has done all this, and it has done nothing more. Had it pursued a different course it would have justly subjected itself to the animadversions of the Senate. To the information collected by the committee from these delegations, and laid before the Senate, my friend from Maryland (Mr. SMITH) has opposed a statement of facts, and his opinion founded upon those facts. As the situation and talents of that gentleman entitle his statements and opinions to great weight; as it is more than probable that the votes of several members will ultimately rest upon the weight of his authority, my honorable friend from Maryland (Mr. SMITH) will pardon me if I should examine his observations rather according to the rules of evidence, than those of logic. In making this declaration I wish to be explicitly understood, as excluding every idea of charging that gentleman with having made statements which he did not believe, or with having given opinions he did not entertain. I have no doubt but that he sincerely believes in the correctness of his statements, and in the accuracy of his opinions; but if, in the course of my observations, I shall prove incontestably that he is mistaken in some of his statements and opinions, it will teach the Senate the necessity of weighing the remainder of them with great circumspection. If I shall be able to show that he is mistaken in a case, the evidence of which is matter of record, that circumstance alone will induce the Senate to reject all idea of receiving his statements and opinions with implicit confidence. The gentleman from Maryland has stated several cases in which the State banks, and the banks of this Territory have accommodated the Government where the United States had refused. The cases stated prove nothing, and ought to have no influence with this Government in establishing a permanent system of revenue. If the State and Territorial banks have upon several occasions received the bills of other State banks to accommodate the Government, it was because it suited their convenience at the time. It was a mere temporary transaction, and forms an exception to the general rule. The charter of no bank in the United States compels them to take the paper of other banks, and whether they do receive them or not will depend upon contingent circumstances, or upon whim and caprice. No reliance, therefore, ought to be placed upon the duration of any regulation which is not enforced by their charters. The gentleman from Maryland thinks that the United States will have the same influence over the State banks that it has had, and will have over that of the United States. If he is correct as to the extent of that influence, his conclusion may be correctly drawn. But, sir, is it true that the National Government has no other influence over this bank than that which can be produced by withdrawing of its deposits? If it is so, then it must be admitted that the United States will have the same influence over the State banks that they will have over one of their own creation, because they can as easily withdraw their deposits from the one as the other. But, sir, the United States have an influence over the Bank of the United States, which is wholly independent of, and unconnected with, the right of withdrawing their deposits from its vaults. The bank is dependent on them for its existence. By renewing the charter for short periods of time you create a state of dependency upon the Government, which will at all times make the bank completely subservient to all the legitimate objects for which it was created. How, sir, is it with the State banks? Upon whom are they dependent for legal existence and for length of days? Upon the State Governments. Suppose the authority from which they derive their existence should place itself in opposition to the Government of the United States; and suppose that this state of hostility should happen a year, or two before the time at which their charters were to expire, and the State Legislature should direct them to hold the deposit of public moneys against the demand of the National Government, what course would they pursue under such circumstances? Sir, the case which I have stated is not a mere possible case. The history of several of the large influential States proves that this state of hostility, which I have supposed, is not an imaginary one. Make yourselves dependent upon the State banks for the collection and transmission of your revenue, and that opposition, which has but seldom happened, will become more frequent. Their disposition to control the operations of the National Government will increase with every increase of the means of annoyance, which the folly and improvidence of Congress may throw into their hands. For whose benefit, sir, is the Government to strip itself of this right, so essential for the due administration of its finances? Is it for the benefit of the great mass of the American people? No; not one in a hundred of them have any interest in the State banks. They feel no interest in the question; their true interest is more effectually subserved by the operations of the Bank of the United States than it can possibly be by the State banks. This bank affords them a portable currency which is of equal value in every part of the United States, while the credit and currency of the State banks is local. It is impossible to resist the conviction that the prompt and secure collection of our revenue is principally owing to the influence of the bank. But, sir, the bank has another direct influence upon the collection of your revenue. By the rules established in the bank at Philadelphia, every person whose bond to the Government is deposited there, has a right, upon getting an additional endorser, to claim a discount for half of the amount of his bond, and the part so discounted is immediately carried to the credit of the United States, and the bank takes upon itself the risk of the ultimate collection. In this way, sir, one-half of the bond is collected at the sole risk of the bank, without any possibility of loss on the part of Government. And yet, sir, it is contended that the bank has nothing to do with the collection of the public revenue. The gentleman from Maryland says that the scarcity of money, and the alarm and dismay which the delegation of mechanics had represented as existing in Philadelphia, could not be the effect of the contraction of discounts by the Bank of the United States, because that bank, as well as the State banks, are going on with their ordinary discounts. This is true, but the gentleman from Maryland has forgotten that this delegation stated that the bank, upon the rejection of their memorial by the House of Representatives, had contracted their discounts, and that a correspondent contraction had taken place in the discounts of the State banks which had produced the pressure; and that the pressure had spread alarm and dismay through the city. That before they left the city, the directors of the Bank of the United States had come to an understanding with the directors of the State banks, all of whom had determined to resume and continue their ordinary discounts until the last hour. Notwithstanding the banks had resumed their discounts, the panic which had been produced did not cease, and the scarcity of money, and the distrust which had taken place, still continue to exist in Philadelphia. The gentleman from Maryland admits expressly that the transmission of your public money for the payment of the Army and Navy must be effected through the agency of banks, but contends that that object can be effected as well by the State banks as by a Bank of the United States. My friend from Kentucky (Mr. POPE) said, that the great characteristic difference between the present Government and that which existed under the old articles of confederation, is, that the present Government has within itself the means of executing its own measures, without relying upon the State governments; whereas the old Congress had to rely upon the States for the execution of the measures which it had previously devised and adopted. The gentleman from Maryland, in speaking of the means which had been resorted to, to procure the renewal of the charter, says that we have not procured memorials to be presented to Congress praying that the charter might not be renewed--we have not procured pamphlets to be written, published, and laid upon the tables of members, proving the unconstitutionality and inutility of the bank--we have not imposed upon the credulity of honest mechanics and manufacturers, and by that means procured delegations to be sent to pray for the rejection of the bank memorial. Surely, sir, the gentleman did not by these declarations mean to insinuate that any one of those gentlemen who support the bill upon your table, have had any agency in procuring any application to be made in favor of the bank. I know that gentleman's respect for himself; his respect for the Senate; his respect for the individual members of this body, as well as his respect for the general rules of propriety, exclude the possibility of his making such an insinuation. [Mr. SMITH explained, by saying, I exclude every idea of such an insinuation.] Sir, I will tell the honorable gentleman from Maryland, what has been done by those who are opposed to the renewal of the charter. I do not mean the members of the Senate who are opposed to it, but those who have attempted to inflame public opinion upon this question. Letters, sir, have been written from this place to induce the State Legislatures to instruct their members to oppose the renewal of the charter of the bank. I will ask the honorable gentleman from Maryland whether he does not know that letters have been written for that purpose? The gentleman from Maryland has said, and I am extremely sorry that he has, that the Bank of the United States had their agents in this city for two sessions, intriguing with members of Congress to obtain a renewal of their charter. I can assure that gentleman that I have had as little to do with the agents of the bank as he has had. If, sir, I was disposed to retort upon those who are opposed to the renewal of the charter, I would ask, if they have not seen published in the democratic papers of Pennsylvania, Maryland, and Virginia, extracts of letters said to be written in the City of Washington, charging the members of Congress who are in favor of it with being bribed and corrupted, and with being disposed to sell the sovereignty of the nation to British capitalists? Have they not seen, in the same papers, conversations detailed with great minuteness, which it is pretended have passed between members of Congress, calculated to excite public odium and indignation against the friends of the bill now under consideration? Sir, I will not for a moment indulge an idea that these letters have been written or these conversations detailed by any member of this body. The idea that such has been the fact is too humiliating, too degrading, not only to this honorable body, but to human nature itself; to be entertained but for a moment. And yet, sir, the author of a charge, as base as it is false, against my honorable friend from Kentucky, (Mr. POPE,) has, day after day, occupied a seat in a gallery of the Senate, to which no person has a right of access, but by an introduction of one of the members of this body. Sir, the highway robber, when compared with the infamous fabricator of this base attempt to assassinate the reputation of this honorable member, becomes a virtuous and estimable character. Such, sir, has been the warfare which has been waged against the renewal of the charter. Denunciations and charges of political apostacy are the measures by which we have been assailed from without and from within. Sir, I have shown that the bank question was no party question in its origin--that it was a question upon which an honest difference of opinion always has existed, and does now exist. And, shall I be charged with deserting the standard of the people, while I am treading in the footsteps of the great Father of his Country? The gentleman from Maryland (Mr. SMITH) has said that he understood that a proposition was made in the Federal Convention to vest Congress with power to create corporations generally and without limitation. Had I been a member of that convention, I should most certainly have voted against the proposition, because it would have been unreasonable. Why should such a power have been delegated? Not certainly as necessary to execute the delegated powers, because they are very limited--a general power to create corporations would have enabled Congress to have created them _ad libitum_ where there was no possible relation between them and any one of the delegated powers. The vote upon the incorporating the bank proves that if such a proposition had been submitted, it must have been rejected under a conviction that the power to create corporations is incident to such of the general powers as might require an act of incorporation completely to execute them, and fairly vested by the constitution in Congress; because ten of the members of that convention were in Congress, and voted for that bill--because General WASHINGTON signed that bill, because the only member of that convention now in Congress voted for the bill and is now in favor of renewing the charter; and because there were but eight members of that convention in Congress who voted against it. Mr. President, I will now proceed to examine the objections which have been offered to the construction which I have given to several clauses of the constitution. In the observations which I made upon this part of the question when I was up before, I endeavored to prove that every construction that had been given to this instrument, upon the idea of its being perfect, was likely to be erroneous. The gentleman from Virginia (Mr. GILES) and the gentleman from Tennessee (Mr. WHITESIDE) still view it as a model of perfection. They are certainly at liberty still to entertain that opinion. Every man has a right to erect his idol in this land of liberty, and to fall down and worship it according to the dictates of his own conscience. I endeavored also to prove, that if we applied the same rule of construction to that clause of the constitution from which we endeavor to derive the right to create a bank, which has been applied to that from which the power to erect a light-house has been derived, the constitutional difficulty at once disappears. Until my friend from Virginia (Mr. GILES) and my friend from Tennessee (Mr. ANDERSON) had otherwise declared, I had always understood the right to erect light-houses had been exercised as incidental to the power to regulate commerce. It seems, however, that I am mistaken, and that this right is incidental to that clause which gives Congress the right to exercise exclusive legislation in certain places. The clause reads in the following words: "To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings," &c. Now, says my friend from Tennessee, this clause gives the right to erect dockyards; and as dockyards must be on the seacoast, therefore Congress has the right to erect light-houses, because they must also be on the seacoast. This argument is extremely logical, nay, syllogistical, in form, but it is extremely illogical in substance. The conclusion drawn from the premises, is as necessary, as though I were to say, that because two and two makes four, therefore five and five makes twelve. The conclusion in the latter case is as necessary as in the former. But my honorable friend from Virginia (Mr. GILES) derives it from the authority given in this clause, to erect other needful buildings. But the question recurs, needful for what? Why, certainly, for the purposes before specified. What are they? Forts, magazines, arsenals, and dockyards. If this clause gives any authority to erect forts, magazines, arsenals, and dockyards, the other needful buildings spoken of must be needful for the specified purposes. I should suppose that no man, who spends only a few days in this city, can be at a loss to determine what is comprehended under the term "other needful buildings." Let him go to the dockyard, nicknamed a navy-yard in this city, and he will there find a little town of "other needful buildings" in the words of the constitution. But, sir, I deny that this clause of the constitution expressly gives any right, but that of exercising exclusive legislation in the places to be accepted or purchased for the purpose therein specified. The right to erect forts, magazines, and arsenals, is fairly incidental to the right of declaring war, and of raising armies; and the right to erect dockyards is fairly incidental to the right of providing and maintaining a navy. But if for the sake of argument I should admit that the right to erect forts, &c., is given in this clause, how can it be proved that the right to erect a light-house is also given? Forts, magazines, arsenals, and dockyards, are enumerated, and as the constitution says that all powers not expressly given are retained, if the right to erect forts, magazines, &c., is given in this clause, most clearly the right to erect light-houses is retained by the States, because it is not to be found in the enumeration contained in the clause. When I had the honor of addressing the Senate before I questioned the authority of the State governments to create banks; I then stated, and I again explicitly state, that it is with reluctance that I have felt it my duty to make any inquiry into the constitutional right of the State governments to incorporate banks. The State Legislatures ought to have recollected the Spanish proverb, which says that those who live in glass-houses ought not to throw stones. Before they undertook to question the constitutional authority of Congress, they ought to have thoroughly examined the foundation upon which their own right rested. The honorable gentleman from Virginia (Mr. GILES) says that the construction which I have given to that part of the constitution which prohibits the States from emitting bills of credit, would apply equally to promissory notes given by one individual to another under the laws of a State, as to a bank bill. Permit me to inquire of that gentleman whether he ever saw a law authorizing one man to give another his promissory note? He may search the pandects of Justinian; he may turn over the leaves of the musty volumes written upon the common law, from the days of Bracton and Fleta down to the present day, and his search will be in vain. For the right to make contracts, the right to give promissory notes, is antecedent to, and independent of all municipal law. The gentleman will find laws and decisions in abundance, regulating the effect of endorsements and other collateral circumstances, and prescribing the manner of enforcing the payment of promissory notes, but he will never find a law giving the right to execute the promissory note. But it is said that the bills of credit, which the States are prohibited from emitting, must be bills of credit emitted on the credit of the State. If this distinction should be well founded, many of the State banks are still subject to the charge of unconstitutionality, because in many of them the States are directly interested, and wherever that is the case, their bank bills are bills of credit emitted on the credit of the State. But the correctness of this distinction may well be denied, because the restriction is as general as it could possibly be made. But it is said that this restriction applies only to bills of credit which are made a legal tender in the payment of debts; that bills of credit, designated in the constitution, are _ex vi termini_ a legal tender. For the correctness of this exposition, an appeal is made to the restriction which immediately follows it, which restrains the right of the States to make anything but gold and silver a legal tender in the payment of debts. It appears to me that the latter restriction excludes most emphatically the construction contended for. If the States are prohibited from emitting bills of credit, it would have been, to say the least of it, wholly nugatory to say they should not make them a legal tender. If the bills are not emitted, it is impossible that they can be made a legal tender. To suppose that the restriction upon the right of the States to make any thing but gold and silver legal tender has any connection with or influence upon the restriction to emit bills of credit, is as absurd as to suppose that the Decalogue, after having declared that "thou shalt do no murder," should have added, but, if you will murder, you shall not rob and strike the dead. The construction of the restraint upon the right to make any thing but gold or silver a tender, is that they shall not make specific articles, as tobacco or cotton, a tender, as was the case in some of the States. But it is said that the history of the States will show that the bills of credit specified in the constitution were those only which were a legal tender in the payment of debts. Let us examine this point, according to the rule of construction applied to another clause in the constitution by a large majority of both Houses of Congress during the present session. Another clause in the constitution gives Congress the power to admit new States into the Union under two limitations: 1st. That no new State shall be formed within the limits of any State without the consent of the State; and, 2d. That no new State should be formed by the junction of two or more States without the consent of such States, and also of Congress. These limitations prove that the formation of new States, within the limits of the United States, was in view of the convention at the time that this clause was adopted; and the subsequent clause, which gives Congress the power to make rules for the government of its Territories, proves that these Territories were at that moment under consideration. In addition to these reasons for believing that the framers of the constitution had no idea of forming new States, beyond the limits of the United States, those who were opposed to the admission of Orleans as a State contended that the history of the United States proves that the power to erect new States and admit them into the Union was intended to be confined to new States within the limits of the United States at the formation of the constitution, and that a different construction would disparage the rights of the original States, and, of course, be a violation of the constitution. What reply did the majority of Congress give to this train of reasoning? They said that the right to admit new States cannot be subject to any other limitations or restrictions than those which are contained in the clause which gives the right, and as there is no restriction upon the right to erect new States without the then limits of the United States, Congress have an unlimited right to erect and admit them into the Union. Let us apply the same rule of construction to the restriction of the right of the States to emit bills of credit. The restriction is a general one; it has no exceptions; and every attempt to make exceptions ought to be repelled by the answer which was given to those who opposed the right of Congress to admit the Territory of Orleans into the Union as a State. The construction I have contended for gains additional weight when we consider the restriction which immediately precedes that under consideration. No State shall coin money, emit bills of credit, &c. Bills of credit are but the representatives of money. The constitution gives Congress the right to coin money, and to regulate its value. It takes from the States the right to coin money and to emit bills of credit. Why give to Congress the right to coin money and regulate its value? Because the interest of the nation requires that the current coin of the nation should be uniform both as to its species and value. If this is the true reason why the right of coining money and fixing its value was given to Congress, does not the right to issue that which is to be the representative of this coin; which, in fact, is to usurp its place; which is to be the real currency of the nation, necessarily belong to Congress? Does not the right to create a bank, which shall issue this representative of money, come within the same reason? I think it does. To the fervid imagination of my friend from Kentucky, (Mr. CLAY,) this power to create a bank appears to be more terrific than was the lever of Archimedes to the frightened imagination of the Romans, when they beheld their galleys suddenly lifted up and whirled about in the air, and in a moment plunged into the bosom of the ocean. Are these apprehensions founded in reason, or are they the chimeras of a fervid and perturbed imagination? What limitation does the constitution contain upon the power to lay and collect taxes, imposts, duties, and excises? None but that they shall be uniform; which is no limitation of the amount which they can lay and collect. What limitation does it contain upon the power to raise and support armies? None other than that appropriations shall not be made for a longer term than two years. What restriction is to be found in it upon the right to provide and maintain a navy? None. What upon the right to declare war and make peace? None, none. Thus the constitution gives to the Government of the United States unlimited power over your purses--unlimited power to raise armies and provide navies--unlimited power to make war and peace, and you are alarmed; you are terrified at the power to create a bank to aid it in the management of its fiscal operations. Sir, nothing short of my most profound respect for honorable gentlemen, who have frightened themselves with this bugbear, could induce me to treat the subject seriously. Gentlemen have said that they are alarmed at the exercise of this power, and I am bound to believe them. Sir, after giving Congress the right to make war and peace; the right to impose taxes, imposts, duties, and excises, _ad libitum_; the right to raise and support armies without restriction as to number or term of service; the right to provide and maintain a navy without a limitation, I cannot bring myself to tremble at the exercise of a power incidental to only one of these tremendous grants of power. The gentleman from Kentucky (Mr. CLAY) contends that we have attempted to give a degree of weight and force to what we are pleased to call precedents, to which they would not be entitled in those tribunals from which we derive all our ideas of precedents. I am happy to find that my friend from Virginia (Mr. GILES) agrees with me in opinion upon this subject. Indeed the principal difference between that gentleman and myself is confined to the question of expedience. He thinks that the construction which has been given to the constitution ought to be considered as conclusive; and that great inconvenience will be produced by unsettling what ought to be considered as finally settled and adjudged. Sir, I have closed the observations which I thought it my duty to make in reply to the comments which have been made upon the remarks which I had previously submitted to the consideration of this honorable body. If, sir, I preferred my political standing in the State which I have the honor to represent (and, sir, I do not profess to have any out of it) to the public welfare, I should rejoice at the success of the motion which has been made by the honorable gentleman from Tennessee, (Mr. ANDERSON.) But, sir, as I believe the public welfare infinitely more important than any fleeting popularity which an individual like myself can expect to enjoy, I shall most sincerely regret the success of that motion. Sir, I have said but little about the degree of distress which will flow from the dissolution of the bank, because I have not that kind of evidence which would enable me to judge of it with any degree of accuracy. The convulsed state of the European nations; the immense losses which our commerce has sustained by the operation of the decrees and orders of the tyrants of the land and the ocean, imperiously admonish us to beware of making untried and dangerous experiments. By supporting this institution, the tottering credit of the commercial class of your citizens may be upheld, until the storm shall have passed over. By overturning this great moneyed institution at the present crisis, you may draw down to undistinguished ruin thousands of your unfortunate and unoffending fellow-citizens. The question was then taken on striking out the first section of the bill, (equivalent to a rejection,) when it appeared that there were for the motion 17, against it 17, as follows: YEAS.--Messrs. Anderson, Campbell, Clay, Cutts, Franklin, Gaillard, German, Giles, Gregg, Lambert, Leib, Mathewson, Reed, Robinson, Smith of Maryland, Whiteside, and Worthington. NAYS.--Messrs. Bayard, Bradley, Brent, Champlin, Condit, Crawford, Dana, Gilman, Goodrich, Horsey, Lloyd, Pickering, Pope, Smith of New York, Tait, Taylor, and Turner. The Senate being equally divided, it became the duty of the VICE PRESIDENT to decide the question by his vote; previously to which he made the following observations: GENTLEMEN: As the subject on which I am called upon to decide has excited great sensibility, I must solicit the indulgence of the Senate while I briefly state the reasons which influence my judgment. Permit me to observe, that the question to be decided does not depend simply upon the right of Congress to establish under any modification a bank, but upon their power to establish a National Bank, as contemplated by this bill. In other words, can they create a body politic and corporate, not constituting a part of the Government, nor otherwise responsible to it but by forfeiture of charter, and bestow on its members privileges, immunities, and exemptions not recognized by the laws of the States, nor enjoyed by the citizens generally? It cannot be doubted but that Congress may pass all necessary and proper laws for carrying into execution the powers specifically granted to the Government, or to any department or officer thereof; but, in doing so, the means must be suited and subordinate to the end. The power to create corporations is not expressly granted; it is a high attribute of sovereignty, and in its nature not accessorial or derivative by implication, but primary and independent. I cannot believe that this interpretation of the constitution will, in any degree, defeat the purposes for which it was formed. On the contrary, it does appear to me, that the opposite exposition has an inevitable tendency to consolidation, and affords just and serious cause of alarm. In the course of a long life I have found that Government is not to be strengthened by an assumption of doubtful powers, but by a wise and energetic execution of those which are incontestible; the former never fails to produce suspicion and distrust, while the latter inspires respect and confidence. If, however, after a fair experiment, the powers vested in the Government shall be found incompetent to the attainment of the objects for which it was instituted, the constitution happily furnishes the means for remedying the evil by amendment, and I have no doubt that in such event on an appeal to the patriotism and good sense of the community it will be wisely applied. I will not trespass upon the patience of the Senate any longer than to say, from the best examination I have been able to give the subject, I am constrained by a sense of duty to decide in the affirmative--that is, that the first section of the bill be stricken out. SATURDAY, March 2. _Bank of the United States._ Mr. CLAY, from the committee to whom was referred, on the 25th February, the memorial of the stockholders of the Bank of the United States, praying that an act of Congress might be passed to continue the corporate powers of the bank for a further period, to enable it to settle such of its concerns as may be depending on the 3d of March, 1811, made the following report: That your committee have duly weighed the contents of the memorial, and deliberately attended to such explanations of the views of the memorialists as they have thought proper to present through their agents. That, holding the opinion (as a majority of the committee do) that the constitution did not authorize Congress originally to grant the charter, it follows, as a necessary consequence of that opinion, that an extension of it, even under the restrictions contemplated by the stockholders, is equally repugnant to the constitution. But, if it were possible to surmount this fundamental objection, and if that rule which forbids, during the same session of the Senate, the re-agitation of a proposition once decided, were disregarded, your committee would still be at a loss to find any sufficient reasons for prolonging the political existence of the corporation for the purpose of winding up its affairs. For, as it respects the body itself, it is believed that the existing laws, through the instrumentality of a trust properly constituted, afford as ample means as a qualified continuance of the charter would, for the liquidation of its accounts, and the collection and final distribution of its funds. But should any inconvenience be experienced on this subject, the committee are persuaded it will be very partial, and such as the State authorities, upon proper application, would not fail to provide a competent remedy for. And, in relation to the community, if the corporation, stripped of its banking powers, were to fulfil _bona fide_ the duty of closing its affairs, your committee cannot see that any material advantage would be derived. Whilst, on the contrary, if it should not so act, but should avail itself of the temporary prolongation, in order to effect a more durable extension of its charter, it might in its operations become a serious scourge. Your committee are happy to say that they learn, from a satisfactory source, that the apprehensions which were indulged, as to the distress resulting from a non-renewal of the charter, are far from being realized in Philadelphia, to which their information has been confined. It was long since obvious that the vacuum, in the circulation of the country, which was to be produced by the withdrawal of the paper of the Bank of the United States, would be filled by paper issuing from other banks. This operation is now actually going on. The paper of the Bank of the United States is rapidly returning, and that of other banks is taking its place. The ability to enlarge their accommodations is proportionately enhanced; and when it shall be further increased by a removal into their vaults of those deposits which are in the possession of the Bank of the United States, the injurious effects of a dissolution of the corporation will be found to consist in an accelerated disclosure of the actual condition of those who have been supported by the credit of others, but whose insolvent or tottering situation, known to the bank, has been concealed from the public at large. Your committee beg leave to present the following resolution: _Resolved_, That the prayer of the memorialists ought not to be granted. The report was ordered to lie on the table. _Claim of General Wilkinson._ Mr. BRADLEY, from the committee to whom was referred the memorial of General James Wilkinson, praying to be remunerated for moneys disbursed in the service of the United States, made the following report: That the said Wilkinson has exhibited to them claims against the United States, to the amount of eleven thousand eight hundred dollars and ninety-six cents. It appears to your committee, from the documents and proofs produced by the petitioner to explain and support his claim against the public, that, of the above sum, $6,719.73 are claimed for his disbursements and expenses incurred pending Burr's conspiracy; $2,560 paid for a tract of land for the public service, now occupied by the troops on the Missouri river, near its mouth; $450, the amount of his passage from Baltimore to Charleston, when ordered on extra duty by the President; and $2,131.23, for losses of property sustained by his sudden transfer from St. Louis, where he was exercising the functions of a civil magistrate, to the Sabine, for the purpose of directing the arms of the nation against an invading force of the Spaniards. Your committee have no hesitancy in saying that many of the charges appear to be legal and founded in justice, and may furnish a proper set off against the balance opposed to him by the War Department, and that the residue are entitled to equitable consideration; but, from the shortness of the time, and the pressure of business before the expiration of the session, your committee cannot find leisure to form that deliberate and clear judgment on the merits of the several items which justice to the petitioner and to the public require; they, therefore, beg leave to offer the following resolution: _Resolved_, That the further consideration of the petition of General James Wilkinson, together with the accompanying documents, be postponed to the next meeting of Congress. The report and accompanying documents were ordered to lie on the table. The Senate adjourned to 6 o'clock this evening. SUNDAY EVENING, 6 o'clock, March 3. _Adjournment._ _Resolved_, That Messrs. TURNER and CONDIT be a committee on the part of the Senate, with such committee as the House of Representatives may join, to wait on the President of the United States and notify him, that, unless he may have any further communications to make to the two Houses of Congress, they are ready to adjourn. _Ordered_, That the Secretary acquaint the House of Representatives therewith, and request the appointment of a committee on their part. A message from the House of Representatives informed the Senate, that the House concur in the resolution for the appointment of a joint committee to wait upon the President of the United States, and notify him of the intended recess, and have appointed a committee on their part. Mr. TURNER, from the joint committee, reported that they had waited upon the President of the United States, who informed them that he had no further communications to make to the two Houses of Congress. _Ordered_, That the Secretary notify the House of Representatives that the Senate, having finished the business before them, are about to adjourn. Whereupon, the PRESIDENT adjourned the Senate without day. PROCEEDINGS IN THE SENATE, IN SECRET SESSION, AT THE THIRD SESSION OF THE ELEVENTH CONGRESS. THURSDAY, January 3, 1811. The following confidential Message was received from the PRESIDENT OF THE UNITED STATES, by Mr. EDWARD COLES, his Secretary: _To the Senate and House of Representatives of the United States_: I communicate to Congress, in confidence, a letter of the 2d of December, from Governor Folch, of West Florida, to the Secretary of State; and another, of the same date, from the same, to John McKee. I communicate, in like manner, a letter from the British Chargé d'Affaires to the Secretary of State, with the answer of the latter. Although the letter cannot have been written in consequence of any instruction from the British Government, founded on the late order for taking possession of the portion of West Florida well known to be claimed by the United States; although no communication has ever been made by that Government to this of any stipulation with Spain, contemplating an interposition which might so materially affect the United States; and although no call can have been made by Spain, in the present instance, for the fulfilment of any such subsisting engagement; yet the spirit and scope of the document, with the accredited source from which it proceeds, required that it should not be withheld from the consideration of Congress. Taking into view the tenor of these several communications, the posture of things with which they are connected, the intimate relation of the country adjoining the United States, eastward of the river Perdido, to their security and tranquillity, and the peculiar interest they otherwise have in its destiny, I recommend to the consideration of Congress, the seasonableness of a declaration that the United States could not see, without serious inquietude, any part of a neighboring territory, in which they have, in different respects, so deep and so just a concern, pass from the hands of Spain into those of any other foreign power. I recommend to their consideration, also, the expediency of authorizing the Executive to take temporary possession of any part or parts of the said territory, in pursuance of arrangements which may be desired by the Spanish authorities; and for making provision for the government of the same, during such possession. The wisdom of Congress will, at the same time, determine how far it may be expedient to provide for the event of a subversion of the Spanish authorities within the territory in question, and an apprehended occupancy thereof by any other foreign power. JAMES MADISON. WASHINGTON, _January 3, 1811_. The Message was read. On motion by Mr. CLAY, _Resolved_, That the Message from the President of the United States, of this day, which has been just read, be referred to a committee, with leave to report by bill or otherwise. Mr. CLAY, Mr. CRAWFORD, Mr. BRADLEY, Mr. SMITH of Maryland, and Mr. ANDERSON, were appointed the committee. MONDAY, January 7. Mr. CLAY, from the committee, appointed the 3d instant, on the confidential Message of the President of the United States, reported a declaration and bill to enable the President of the United States to take possession of the country lying east of the Perdido, and south of the State of Georgia and the Mississippi Territory, and for other purposes; which were read, and passed to a second reading. TUESDAY, January 8. The bill to enable the President of the United States to take possession of the country lying east of the Perdido, and south of the State of Georgia and the Mississippi Territory, and for other purposes, was read the second time; and, on motion by Mr. CLAY, it was considered as in Committee of the Whole. On motion, by Mr. BAYARD, to amend the bill, by striking out of the first section thereof the words, "In the event of such arrangement for that purpose as shall have been made with the local authority which may then exist;" and, in lieu thereof, to insert the words, "In case an arrangement has been or shall be made with the local authority of the said territory for delivering up the possession of the same to the United States:" On motion, by Mr. GILMAN, a division of the question was called for: and the question being put on striking out, it was determined in the affirmative. The question was then taken upon inserting the proposed amendment, and determined in the affirmative--yeas 20, nays 12, as follows: YEAS.--Messrs. Anderson, Bayard, Brent, Campbell, Condit, Crawford, Franklin, German, Gregg, Lambert, Lloyd, Mathewson, Pickering, Pope, Reed, Smith of Maryland, Smith of New York, Tait, Taylor, and Worthington. NAYS.--Messrs. Bradley, Champlin, Clay, Cutts, Dana, Gaillard, Gilman, Goodrich, Horsey, Leib, Robinson, and Whiteside. On motion, by Mr. BAYARD, it was agreed to amend the fourth section of the bill, by inserting, after the word "enacted," the words, "That in case possession of the territory aforesaid shall be obtained by the United States, as aforesaid." WEDNESDAY, January 9. The Senate resumed, as in Committee of the Whole, the bill to enable the President of the United States to take possession of the territory lying east of the Perdido, and south of the State of Georgia and the Mississippi Territory, and for other purposes. On motion, by Mr. CLAY, it was agreed further to amend the bill, by adding to the first section the remainder of the original second section; and by adopting the original third and fourth sections, as the second and third sections of the bill; and having gone through the amendments, the President reported the bill to the House accordingly. On the question, "Shall this bill be engrossed and read a third time, as amended?" it was determined in the affirmative. Mr. ANDERSON submitted the following motion: _Resolved_, That the subject-matter of the bill, entitled "An act to enable the President of the United States to take possession of the country lying east of the Perdido, and south of the State of Georgia and the Mississippi Territory, and for other purposes," be kept inviolably secret by the members of the Senate, until the Senate shall, by their resolution, take off the injunction of secrecy. Which was read; and on the question to agree thereto, it was determined in the affirmative--yeas 20, nays 6, as follows: YEAS.--Messrs. Anderson, Bradley, Brent, Clay, Crawford, Cutts, Franklin, Gaillard, Gilman, Gregg, Lambert, Leib, Pope, Reed, Robinson, Smith of Maryland, Tait, Taylor, Whiteside, and Worthington. NAYS.--Messrs. Bayard, Champlin, Dana, Goodrich, Lloyd, and Pickering. Mr. CUTTS, from the committee, reported the bill last mentioned, correctly engrossed. A confidential message was received from the House of Representatives, by Mr. MONTGOMERY and Mr. CUTTS, two members of that body, with the following resolution, in which they ask the concurrence of the Senate: CONGRESS OF THE UNITED STATES, _In House of Representatives, Jan. 8, 1811._ Taking into view the present state of the world, the peculiar situation of Spain and of the American provinces, and the intimate relation of the territory eastward of the river Perdido, adjoining the United States, to their security and tranquillity: Therefore, _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That the United States cannot see, with indifference, any part of the Spanish provinces, adjoining the said States, eastward of the river Perdido, pass from the hands of Spain into those of any other foreign power. The resolution was read, and passed to a second reading. THURSDAY, January 10. So it was _Resolved_, That this bill do pass, and that the title thereof be, "An act to enable the President of the United States, under certain contingencies, to take possession of the country lying east of the river Perdido, and south of the State of Georgia and the Mississippi Territory, and for other purposes." On motion, by Mr. CLAY, _Resolved_, That a committee of two be appointed to carry the said bill to the House of Representatives, and ask their concurrence therein. _Ordered_, That Mr. CLAY and Mr. BAYARD be the committee. Mr. CLAY reported that the committee had performed the service assigned them. FRIDAY, January 11. Mr. ANDERSON, from the committee appointed on the subject, reported the confidential resolution from the House of Representatives, with the following amendment: Strike out all the words after the word "the," first mentioned in the first line of the resolution, to the end thereof, and in lieu thereof, insert "peculiar situation of Spain and of her American provinces; and considering the influence which the destiny of the territory adjoining the southern border of the United States may have upon their security, tranquillity, and commerce:" Therefore, _Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That the United States, under the peculiar circumstances of the existing crisis, cannot, without serious inquietude, see any part of the said territory pass into the hands of any foreign power; and that a due regard to their own safety compels them to provide, under certain contingencies, for the temporary occupation of the said territory; they, at the same time, declare that the said territory shall, in their hands, remain subject to a future negotiation. Which report was read, and considered as in Committee of the Whole; and, on motion to adopt the report, a division of the question was called for by Mr. DANA, and the question to strike out was agreed to, and the amendment was adopted; and the President reported the resolution to the House accordingly. _Ordered_, That the resolution pass to the third reading, as amended. ELEVENTH CONGRESS.--THIRD SESSION. PROCEEDINGS AND DEBATES THE HOUSE OF REPRESENTATIVES. MONDAY, December 3, 1810. This being the day appointed by the constitution for the meeting of Congress, the following members of the House of Representatives appeared and took their seats, to wit: _From New Hampshire_--James Wilson. _From Massachusetts_--Ezekiel Bacon, William Ely, and Joseph B. Varnum, _Speaker_. _From Vermont_--Samuel Shaw. _From Connecticut_--Epaphroditus Champion, John Davenport, jr., Jonathan O. Mosely, Timothy Pitkin, jr., and Benjamin Tallmadge. _From New York_--James Emott, Jonathan Fisk, Robert Le Roy Livingston, Erastus Root, Thomas Sammons, John Thompson, Uri Tracy, and Killian K. Van Rensselaer. _From New Jersey_--Adam Boyd, Jacob Hufty, and Henry Southard. _From, Pennsylvania_--William Anderson, David Bard, Robert Brown, William Crawford, William Findlay, Daniel Heister, Aaron Lyle, William Milnor, John Rea, Matthias Richards, Adam Seybert, John Smilie, George Smith, Samuel Smith, and Robert Whitehill. _From Maryland_--Charles Goldsborough, Alexander McKim, Philip B. Key, Archibald Van Horne, John Montgomery, and Nicholas R. Moore. _From Virginia_--James Breckinridge, William A. Burwell, Matthew Clay, John Dawson, David S. Garland, Thomas Gholson, Peterson, Goodwyn, Joseph Lewis, jr., Thomas Newton, John Roane, and James Stephenson. _From North Carolina_--Willis Alston, jr., James Cochran, James Holland, Thomas Kenan, Nathaniel Macon, Archibald McBryde, Joseph Pearson, Richard Stanford, and John Stanley. _From South Carolina_--Lemuel J. Alston, William Butler, Joseph Calhoun, Thomas Moore, John Taylor, and Robert Witherspoon,. _From Georgia_--William W. Bibb, Howell Cobb, and George M. Troup. _From Kentucky_--Joseph Desha, Richard M. Johnson, and Samuel McKee. _From Tennessee_--Pleasant M. Miller, John Rhea, and Robert Weakley. _From Ohio_--Jeremiah Morrow. Several new members, to wit: from Connecticut, EBENEZER HUNTINGTON, returned to serve in the place of Samuel W. Dana, appointed a Senator of the United States; from New Jersey, JOHN A. SCUDDER, in the place of James Cox, deceased; and from Maryland, ROBERT WRIGHT, in the place of John Brown, resigned; appeared, produced their credentials, were qualified, and took their seats. A quorum, consisting of a majority of the whole House, being present, the Clerk of the House was directed to acquaint the Senate therewith. On motion of Mr. DAWSON, a committee was appointed on the part of the House, jointly with the committee appointed on the part of the Senate, to wait on the President of the United States, and inform him that a quorum of the two Houses is assembled, and ready to receive any communications he may be pleased to make to them. The Clerk of the House was directed to procure newspapers from any number of offices that the members may elect, provided that the expense do not exceed the amount of three daily papers. The House then adjourned until to-morrow morning eleven o'clock. TUESDAY, December 4. Several other members, to wit: from Massachusetts, RICHARD CUTTS, EBENEZER SEAVER, and CHARLES TURNER, jr.; from Rhode Island, ELISHA R. POTTER; from New York, THOMAS R. GOLD; from Pennsylvania, ROBERT JENKINS; and from Virginia, BURWELL BASSETT and JOHN W. EPPES, appeared, and took their seats in the House. A new member, to wit, from New York, SAMUEL L. MITCHILL, returned to serve in the place of William Denning, resigned, appeared, produced his credentials, was qualified, and took his seat. JONATHAN JENNINGS, the Delegate from the Indiana Territory, and JULIAN POYDRAS, the Delegate from the Territory of Orleans, appeared, and took their seats. A message from the Senate informed the House that a quorum of the Senate is assembled, and ready to proceed to business. They have appointed a committee on their part, jointly with the committee appointed on the part of this House, to inform the President of the United States, that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them. Mr. DAWSON, from the joint committee appointed to wait on the President of the United States, reported that the committee had performed the service assigned them, and that the President answered that he would make a communication to the two Houses of Congress to-morrow at twelve o'clock. WEDNESDAY, December 5. Several other members, to wit: from New Hampshire, DANIEL BLAISDELL and JOHN C. CHAMBERLAIN; from Massachusetts, J. QUINCY, SAMUEL TAGGART, and LABAN WHEATON; from Vermont, WILLIAM CHAMBERLIN, MARTIN CHITTENDEN, and JONATHAN H. HUBBARD; from Connecticut, LEWIS B. STURGES; from New York, VINCENT MATTHEWS, PETER B. PORTER, and EBENEZER SAGE; and from Rhode Island, RICHARD JACKSON, jr., appeared, and took their seats in the House. A Message was received from the PRESIDENT OF THE UNITED STATES, which was read at the Clerk's table. [For this Message see Senate Proceedings of this date, _ante_ page.] The documents accompanying the Message having been read, in part, the House adjourned. THURSDAY, December 6. The SPEAKER laid before the House certificates of the election of EBENEZER HUNTINGTON, of Connecticut; JOHN A. SCUDDER, of New Jersey; ROBERT WRIGHT, of Maryland; and WILLIAM MCKINLEY, returned to supply the vacancy occasioned by the resignation of John G. Jackson, of Virginia; which were referred to the Committee of Elections. FRIDAY, December 7. Another member, to wit, from New Jersey, WILLIAM HELMS, appeared, and took his seat in the House; also, a new member, to wit, from Maryland, SAMUEL RINGGOLD, returned to serve in the place of Roger Nelson, resigned, appeared, produced his credentials, was qualified, and took his seat in the House. MONDAY, December 10. Several other members, to wit: from Massachusetts, GIDEON GARDNER; from New York, GURDON S. MUMFORD; from Pennsylvania, JOHN PORTER; from Virginia, JOHN LOVE and DANIEL SHEFFEY; and from North Carolina, LEMUEL SAWYER, appeared, and took their seats. The SPEAKER laid before the House a certificate of the election of WILLIAM T. BARRY, elected to supply the vacancy occasioned by the resignation of Benjamin Howard, of Kentucky; which was referred to the Committee of Elections. TUESDAY, December 11. Several other members, to wit: from New York, HERMAN KNICKERBACKER; from Virginia, EDWIN GRAY and JACOB SWOOPE; and from South Carolina, RICHARD WYNN, appeared, and took their seats. WEDNESDAY, December 12. Two other members, to wit: from North Carolina, MESHACK FRANKLIN and WILLIAM KENNEDY, appeared, and took their seats. THURSDAY, December 13. Another member, to wit, from Georgia, DENNIS SMELT, appeared, and took his seat; also two other new members, to wit: JOSEPH ALLEN, from Massachusetts, in the place of Jabez Upham, resigned, and WILLIAM T. BARRY, from Kentucky, in the place of Benjamin Howard, resigned, appeared, were qualified, and took their seats. _Apportionment Bill._ The House resolved itself into a Committee of the Whole, on the bill to apportion the Representatives according to the third enumeration of the people of the United States. The question recurring on filling the blank with the number of souls which should entitle to a Representative-- Mr. MACON said he was decidedly of opinion that the ratio ought to be fixed, before the result of the census was known. He had no objection to a moderate increase of the number of members; if they amounted to so many that one side of the House could not hear the other side speak, debate was at end, and the purposes of deliberative legislation defeated. He should have liked the bill better, he said, if it had declared that the House of Representatives should hereafter consist of a certain number of members, and had left the apportionment then to be made according to the population. On the subject of electioneering, he said it became him at least to say, that that portion of the people who sent him here, had not been concerned in it. Whatever might have been the practice elsewhere, so far as concerned his constituents, there had been no going about or haranguing. And, on the subject of electioneering, said he, wherever the people are free, there will be electioneering. It belongs to free government. Possibly different parts of the country may differ as to the mode. In some, men go themselves about electioneering; in others, their friends do it for them. In some, newspaper publications help an election; in others, they destroy it. In some places, I have heard, the sacred pulpit is not free from it; in others, a divine would be destroyed that would attempt it. There was not more electioneering South, Mr. M. believed, than elsewhere; certain he was that candidates could not there spend the sums of money which he had heard of being spent elsewhere in an election. He concluded by saying he was in favor of a moderate increase of representatives. He was not afraid that, from a multitude of counsellors, nothing would be done; it was quite as much to be feared from too few that they would act rashly. FRIDAY, December 14. Another member, to wit, from Massachusetts, ABIJAH BIGELOW, elected to supply the vacancy occasioned by the resignation of William Stedman, appeared, was qualified, and took his seat. _Apportionment Bill._ Mr. GOLD considered this bill as a very important one, as fixing the construction to be put on a provision of the constitution. While, on the one hand, it might be admitted that business would be in general better done by a small number of Representatives, yet, on the other hand, there were important considerations in favor of a large number, as gentlemen would find by referring to the discussions at the period of the adoption of the constitution. It was then feared by some that the representation of so great a people would be too small. If gentlemen would refer to a number of papers, drawn up by an association of gentlemen, at that time, and published under the title of "The Federalist," they would find various arguments used to induce the Legislature to make the representation full; so that, at that period, no apprehensions had existed of the Representatives becoming too numerous. On the contrary, it was supposed that the public confidence would be impaired by having a small delegation. In adverting to the relaxed state of the Union, and how much it was exposed to be shook by attempts to weaken it, it was supposed that public confidence would be inspired, and general satisfaction given, by the selection of a large number. It was true, Mr. G. said, that representation might swell so much as to operate to the exclusion of legislation; but the House of Representatives would not, even if the present ratio were retained, be so numerous as many other legislative bodies in the Union. He had no objection to increasing the numbers of the House of Representatives to such an amount as would permit public business to be done with facility. Gentlemen might differ as to the precise ratio; but, while they argued in favor of a small number, from the inconvenience of a large delegation, he hoped they would conceive with him that well-grounded apprehensions might be entertained of the evils which would result from its being too small. Mr. MITCHILL said he was in favor of the largest number proposed; and, not having been able to obtain that, he should vote for the largest on which a majority could agree. In the district represented by his colleague (Mr. MUMFORD) and himself, there was probably one hundred and twenty thousand souls, and yet he had not heard any murmuring that they were not adequately represented. Congress, Mr. M. said, did not convene here to legislate on all the subjects of the rights of citizens. Our Government is, he contended, a peculiar piece of machinery, an _imperium in imperio_. The Representatives to Congress left behind them Legislatures, whose province it was to take care of the personal rights and the rights of property of our citizens. With these concerns, said Mr. M., we have nothing to do. We meet here under a constitution expressly framed and devised for legislating on select subjects, which, on account of the generality of their nature, could not be confided to the several States. When, then, we consider the narrow grounds we have to legislate on, that our great privileges are left at home, we shall be convinced that there is no occasion that this body should be as numerous as if we were concerned in the great questions of property and right, which are secured by the constitution, under the guardianship of the State Legislatures, and of the courts for the furthering of justice. If I were to quote a precedent of a Legislature for commanding influence, and for wisdom and sagacity in carrying us through an arduous contest whilst struggling for our liberties, I should quote the Old Congress--limited in number, but remarkable for the honesty and fidelity with which they performed what a more numerous body could not have accomplished. And, if I wished to cite an instance of the evils to be dreaded from a numerous assembly, I should quote the National Convention of France, where representatives, assembling in great number, exhibited such a spectacle of disorder as I hope we shall never, by a multitude of counsellors, run the risk of imitating. Mr. PITKIN said that he had not expected that a bill of so much importance would have progressed so far, and gone through the Committee of the Whole in so rapid a manner as this had. What, he asked of the House, was settled by the passage of this bill? Nothing was, or could be settled by the present Congress, unless the returns were made from the different States of the number of inhabitants in each State, before the bill became a law; for Congress alone could designate and specify the number of Representatives which each State should send. The laws heretofore passed, designating the number of Representatives, had, at the same time, declared the ratio, and specified the number of Representatives of each State. Congress alone were competent to decide on the legality of the returns, and on their act alone could the State Legislatures proceed. Mr. P. presumed no member would say that it should be left to the Executive, or any Department of the Government, to say how many Representatives each State should send to Congress. The present Congress might fix the ratio as they pleased, but it would not be obligatory on the next Congress, who could, and undoubtedly would, modify or reverse it as they should think proper. This bill was, therefore, premature, and, in fact, would not settle the principle which it proposed to decide. He was, therefore, on this ground, opposed to the passage of this bill; and he believed the inconvenience of deciding it now would be greater than if the business were to rest until after the returns were made. Mr. QUINCY said that the agitation of this question at the present moment had taken him as much by surprise as it had the gentleman from Connecticut. He had no idea that a question so pregnant with interest would be hurried through the House in this way. His object in rising was to obtain a postponement of the question till some time in the next week, for the consideration of a point, which to his mind was important. He objected to the bill on the principle that it would be a violation of the constitution to pass it. It went to establish a ratio which, in its effect, must be abortive. The constitution says: "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and, excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative." The constitution then had specifically made it the duty of the House to apportion the representation of each State according to its respective numbers. Was it not, he asked, infinitely absurd and a direct violation of the constitution, to apportion the representation before these numbers were known? When the constitution had made it a duty to do a thing according to a standard prescribed, would they do that thing before that standard could be in possession of the House? Suppose that in 1791, before the numbers of the States were known, Congress had undertaken to fix the ratio of representation--would not the Hall have rung with the exclamations that it was a violation of the constitution? And how would this bill, Mr. Q. asked, less violate the constitution than such an act would have done? For, as to the numbers to be ascertained by the present census, Congress were as little competent to decide as they were before any census was taken. This was the ground on which he objected to the bill as unconstitutional, and which he wished an opportunity thoroughly to examine. He therefore moved that the bill lie on the table. Mr. FISK said it had been deemed desirable to fix the ratio before the numbers of each State were ascertained, so as to avoid the difficulty which would arise from the fractions, and to afford an accommodation to the State Legislatures, which would be in session before the next meeting of Congress. It would indeed be necessary to pass a law declaring the number of Representatives to be sent by each State; but that would be a mere matter of form, if the ratio were previously ascertained by law. Mr. F. treated the idea of this bill's being unconstitutional, as altogether unwarranted by fact; for it did not fix the apportionment, but merely the ratio, according to which the Representatives should be apportioned among the States when their respective numbers were known. Mr. WRIGHT was in favor of postponing, and decidedly opposed to the bill. He was against it, because it proposed to bestow on others a power residing in Congress. If this law were to pass, could the Secretary of State be authorized to declare the number of Representatives to which each State was entitled? Could Congress transfer to him legislative power, and authorize him to declare of how many members this body should consist? He presumed not. The power was vested in Congress, and not in the Secretary of State. But gentlemen were desirous now to fix the number of souls which should entitle to a Representative--and why? That the State Legislatures, understanding the number of Representatives to which they are entitled from knowing the census, may proceed to district their States, in anticipation of the law to be passed by Congress. But their acts would not be conclusive, because Congress might change the ratio, and they would have to undo all they had done. Mr. W. hoped that this business would be postponed, until, as heretofore, Congress would be possessed of all the information of which the nature of the case would admit. When the census was received from the President of the United States they would be much better able to act than now. In this case, Mr. W. said he held himself imperiously bound to follow the steps of his predecessors. He held it a correct maxim in general, that the practice of to-day should be the precedent for to-morrow. Why need they decide this business immediately? There was yet some months in the session, and time enough to reflect on the subject. Why legislate by halves? If this law were passed, Mr. W. asked, was it perfect? Did it declare to how many Representatives each State should be entitled? He said he could refer to cases in which errors had occurred in the census; and it was in the power of the House alone to correct any errors which might have escaped the Secretary of State. In Maryland a mistake had occurred in the last enumeration, of thirty or forty thousand souls. He believed that a great portion of the district comprising Cecil and Hartford counties had been omitted; and he recollected perfectly well that the error was corrected; and, by turning his eye to the proceedings of that day, he could see other errors. He wished, when the House acted, that they should do it understandingly, and with all the evidence before them of which the case was susceptible. He hoped the bill would be postponed until the returns of the census were received in the usual mode. Mr. W. ALSTON opposed the postponement. He was as loth to depart from old practices as the gentleman from Maryland, if those practices were found to be good. But when they proved inconvenient or useless, it was certainly right to depart from them. What, then, had experience taught them on this subject? Why, that if the ratio was not fixed before the census was known, great inconvenience would result to many States. Congress, at their last session, being apprised of the circumstance, had in their law directed that complete returns should be made to the Secretary of State by the first of March next. It was well known that, if they did not fix the ratio before the first of March, they would not be able to fix it after; when the ratio was fixed, however, the apportionment would not be the work of an hour. If it became necessary to deprive a State of a Representative, he asked whether it would not be more palatable that it should be done now than after the census was known? The State deprived of a Representative could not complain; the ratio would affect it in the same proportion, whether it gave or took a member. That argument, therefore, was entitled to no consideration. Mr. A. expressed his surprise that the small States appeared to be opposed to a large ratio; for, if it would be an advantage on any side, it would be decidedly in favor of the small States. He thought, indeed, that the Representatives of the large States, in voting for a large ratio, had shown great magnanimity and liberality. Mr. GOLDSBOROUGH was in favor of postponement, and was sorry to see the bill attempted to be hurried through. Gentlemen had not maturely considered the subject, and, on reflection, would be convinced that their votes were, if not a direct, at least an indirect, violation of the constitution. This was premature legislation on what properly belonged to the next Congress, and which, act on it as they might, would unquestionably come before Congress at their next session. If it should be found that the ratio agreed on operated unfavorably on the numbers of any State or States, they would be anxious for a reconsideration of the subject. It would be immaterial whether the subject should be brought up by a bill _de novo_, or by a bill to repeal this, if it should indeed become a law; the ardor of discussion would be the same in either case. If this be admitted, the only argument in favor of the bill is done away. The constitution having directed that apportionment should be made accordingly to the whole census, Mr. G. said that he could not see how Congress could fix it before they knew what that census was. He did not know that every gentleman on the floor was ignorant of any of the returns; some might be already apprised of the returns of their own State. Each one made estimates no doubt, in his own mind, as to the probable result; and, for himself, Mr. G. said he had been endeavoring to make some sort of a calculation; and if the bill passed, and the ratio should prove unfavorable to the numbers of the State which he had the honor to represent, he should feel himself bound to move a repeal of the law; and they would have the whole discussion over again. The question on the bill's laying on the table was carried--65 to 43. And on motion, the House adjourned until Monday. MONDAY, December 17. Another member, to wit, from New York, JOHN NICHOLSON, appeared, and took his seat in the House. TUESDAY, December 18. Another member, to wit, from Massachusetts, BARZILLAI GANNETT, appeared, and took his seat. GEORGE POINDEXTER, the delegate from the Mississippi Territory, also appeared, and took his seat. FRIDAY, December 21. Two other members, to wit: from Virginia, JOHN CLOPTON, and WALTER JONES, appeared and took their seats; a new member, to wit, WILLIAM MCKINLEY, also from Virginia, appeared, was qualified, and took his seat. MONDAY, December 24. Three other members, to wit: WILLIAM HALE, from New Hampshire; BENJAMIN PICKMAN, jr., from Massachusetts; and THOMAS NEWBOLD, from New Jersey, appeared, and took their seats. _Claims for Military Services in the Old French War._ Mr. MORROW, from the Committee on the Public Lands, made a report on the several petitions of the officers and soldiers, and the heirs of officers and soldiers who served in the British army in America, in the war between Great Britain and France; which was read, and the resolution therein contained concurred in by the House. The report is as follows: The Committee on Public Lands, to whom was referred several petitions, claiming lands for military services, performed in the war of 1755, between Great Britain and France, report: That, considering the subject-matter of the said petitions highly important, on account of the interest it has recently excited, and the speculation it has given rise to in various parts of the United States, the committee have carefully examined the State papers and public documents, of the period of the above war, to ascertain the original foundation of the supposed claim. In pursuing this investigation, the committee have not been able to discover that any engagement or contract whatever was made or entered into by the Government, or under the authority of Great Britain, with the officers and soldiers of the provincial troops, serving in the war aforesaid, for a grant of lands, either as an encouragement to their entering into the service, or as a compensation for services. All that the committee have been able to find on the subject is in a proclamation of the King of Great Britain, of the 7th of October, 1763, (after the closing of the war and disbanding of the troops,) and in the following words: "_And whereas_ we are desirous, upon all occasions, to testify our royal sense and approbation of the conduct and bravery of the officers and soldiers of our army, and to reward the same, we do hereby command and empower our Governors of the several provinces on the Continent of North America to grant, without fee or reward, to such reduced officers as have served in North America during the late war, and are actually residing there, and shall personally apply for the same, the following quantities of land, subject, at the expiration of ten years, to the same quit-rents as other lands are subject to, in the province within which they are granted, as also subject to the same conditions of cultivation and improvement, viz: "To every person having the rank of a field officer, 5,000 acres. "To every captain, 3,000 acres. "To every subaltern or staff officer, 2,600 acres. "To every non-commissioned officer, 200 acres. "To every private man, 50 acres. "We do likewise authorize and require the Governors and commanders-in-chief of all our said colonies, upon the Continent of North America, to grant the like quantities of land, and upon the same conditions, to such reduced officers of our navy of like rank, as served on board of our ships of war in North America, at the times of the reduction of Louisburg and Quebec, in the late war, and who shall personally apply to our respective Governors for such grants." In this State paper, the committee can perceive no foundation whatever for the present claim upon the United States. Instead of a contract with the officers and soldiers for land, the proclamation contains a mere instruction to the provincial Governors--an instruction emanating from the munificence of the Sovereign, and for conferring a gratuity, not issued for the satisfaction of any previous claim or demand upon Government. That the grant intended by the above proclamation was rather a testimony of respect and approbation, than a donation of value, appears from the prescribed terms on which it was to be made, they being the same on which lands were granted to others in the provinces, with the exception, that the military grants were to be made free of office fees, and exempt from payment of quit-rents for ten years. Had application been made to the land offices of the provincial governments, as was the duty of all the claimants, there can be no doubt but that grants would have been readily made to the full extent of the bounty intended by the proclamation, subject, however, to the usual condition for settlement and improvement. Forty-seven years have now elapsed since the foregoing proclamation, during which period the above claims have laid dormant, and the committee do conceive, that, upon fair and just principles, those claims would have been considered derelict and abandoned had the Government, under which they arose, continued; but to admit them against the United States, placed as they now are, under a government founded on a revolution, which has intervened, is required by no principle of justice, and would, in the opinion of the committee, be an unauthorized disposition and sacrifice of the public property of the United States. On no principle of national law, or by any treaty or convention between the United States and Great Britain, are the United States bound to perform the engagements of the former government of Great Britain, especially for mere bounties; nor would the purposes for which the several States have ceded land, within their respective jurisdictions, to the United States, warrant the appropriation of those lands for the satisfaction of the claims in question, were the same better founded than by the committee they are conceived to be. The committee, therefore, beg leave to submit the following resolution: _Resolved_, That the prayer of the petitioners ought not to be granted. MONDAY, December 31. Another member, to wit, from Delaware, NICHOLAS VAN DYKE, appeared, and took his seat. WEDNESDAY, January 2, 1811. Two other new members, to wit: from New Hampshire, NATHANIEL A. HAVEN; and from Maryland, JOHN CAMPBELL, appeared, and took their seats. _Orleans Territory._ The House resolved itself into a Committee of the Whole, on the bill for admitting the Territory of Orleans as a State into the Union. Mr. BIBB said it was very far from his intention to oppose the passage of the bill. On the contrary, he was favorably disposed to it; but a difficulty had occurred to him which he would state as a reason for delaying a decision on the bill for the present. The bill proposed including in the State all that part of the Territory which lay west of the Perdido, &c. The President, by his Proclamation, although he had required its occupation, he declared that the right should be subject to negotiation. Now, if it became a State, would not all right of negotiation on the subject be taken from the President? Mr. BARRY said that the necessity of State government, the want of proper control by the General Government, and its inability to attend to the municipal concerns of the Territory, imperiously called upon Congress to erect it into a State. It was unimportant, as respected the ratio, that the bill should be delayed till that was ascertained. Although the precise population could not be ascertained, yet, from what had fallen from the gentlemen from Orleans and Mississippi Territories, it was probable that the Territory had already a right to become a State. Mr. B. said it was important that Congress should act on this subject, for a variety of reasons. It was a point of the Union particularly important to the country which he represented. New Orleans commanded the river through which the whole productions of the Western and of some part of the Southern country were carried to market. It became important in another respect, that the people in that country should have the power of self-government. He alluded to the necessity, in the present posture of affairs, that they should have the power of self-preservation to protect themselves in the enjoyment of their rights, and that the power resulting from State sovereignty ought therefore to be extended to them at this time. The objection which has been urged, respecting the question of title, was equally unimportant. Admitted in its full force, it would only require a modification of the bill, reserving to Congress the power of changing the boundary of the Territory; and this would be a desirable modification because of the undefined limits of the Territory. This objection did not meet the merits of the bill, but merely suggested a modification. It was important now to act on the subject, because Congress had the power to impose conditions on the Territory. If they waited until it had attained a population of 60,000, they could not say no to the demands of these people. Mr. SHEFFEY said he was not prepared to act on the subject, because the materials on which to decide were not before the House. Whilst he was disposed to treat the inhabitants of the Orleans Territory as brothers, and not as vassals, he was not ready to transfer the inheritance purchased by the blood of our fathers to foreigners. While he looked upon these people as equals, and was disposed to do them justice, he thought all they could demand at his hands was to be placed on that equality to which they were entitled. It had been said that the population was this much or that much. How much?--Mr. S. asked. Sixty thousand? Forty thousand? Thirty thousand? Would any gentleman who regarded his honor tell the House that there were 30,000 inhabitants in the undisputed Territory? He believed not. And would gentlemen favor this French population at the expense of their own interests and rights? It was true indeed that Ohio became a State before she had 60,000; but the ratio of representation was then but 30,000. If he were to reason on this subject, Mr. S. said he would say, under the fostering hand of the General Government, let them become accustomed to our Government, before those were permitted to govern themselves who had so lately emerged from despotism. He was not, he said, directly hostile to the admission of this Territory into the Union; but he made these observations in answer to speculations ushered in to lead the House from its duty. They ought to have the necessary information. Mr. MACON said he would treat these people as he would the people of every other Territory. They were a part of the nation, and so ought to be considered. There ought to be no question as to what stock they sprung from; the true question was, ought they to be a State? The true policy, Mr. M. thought, was, as they were to become a part of the United States, to make them one and indivisible as soon as possible. They had already served a sufficient apprenticeship to the United States, but not under a free Government, for the Territorial governments were not free. The advantage of exacting of them the condition of using the same language, was a great one. How could they be made one with the United States unless by the use of the same language? Mr. M. wished to treat this Territory as well as the others, and no better; he would not treat one as a daughter and the other as a step-daughter. He was as willing now to make Orleans a State as he had been to make Ohio a State. The great object is to make us one people; to make this nation one. As to the Mississippi Territory, it had not served a much longer apprenticeship than Orleans, having only been acquired by the treaty with Spain in 1795. The people of Orleans possessed certainly as strong an attachment to the nation as could be expected from the time they had belonged to it. When the Spaniards invaded the Territory, they stepped forward promptly to repel them; and when some citizens of the old States forgot the love every honest heart owes to his country, they showed their attachment to the Union by the readiness with which they lent their aid to repel them. To make them a State would make that attachment still greater, and it was therefore advisable to act on the subject. The committee now rose, reported progress, and asked leave to sit again; but before leave was granted, the House adjourned. FRIDAY, January 4. _Territory of Orleans._ The House resolved itself into a Committee of the Whole on the bill for admitting the Territory of Orleans into the Union as an independent State, &c. Mr. WHEATON.--Whenever a bill is offered for our sanction, in order that it may become a law, it is proper, before we give it such sanction, that we should inquire whether the subject of it is such as we have constitutional authority to legislate upon; and if so, whether, from a consideration of time and circumstances, it be expedient so to do. It appears to me that the bill now before us is objectionable on both these grounds, and, if so, there is a double reason why it should not pass. A few moments will be sufficient for the remarks I have to make upon either; and, if they shall be deemed of no consequence, there will be this consolation, that they will have occupied but very little time. The subject of this bill is the Orleans Territory, and the object of it, to form that Territory into a State, the people of which are to be subject to the same duties, and entitled to the same privileges, as the people of the United States in their federative capacity. It will be observed that our constitution, by its enacting clause, was ordained and established for the _then_ United States of America. The United States being thus included, implies an exclusion of all others. It may, therefore, be fairly concluded that those that framed this constitution, and those that adopted it, never intended that its immediate operation should extend to any people that did not then, or that should not thereafter be included within the limits of the United States; that they did not intend to enter into a partnership of this sort without some knowledge of those that should compose it, lest the improper conduct of some might end in the ruin of all. The Territory of Orleans certainly was not within the limits of the United States when the constitution was established. It was known to be otherwise. The people there were foreigners to us, and subjects of another Government. That it could not have been intended that the constitution should embrace these people and this Territory, may be argued from the extreme danger of carrying the principle into operation. If we may extend our limits at all, without the consent of the people, further than what is expressed in the constitution, who can tell where will be our ultimate bounds, or what number of States we may have in the Union? Purchase and conquest are objects of ambition. The great Napoleon may have more land to sell, and Spain now possess what she cannot retain. May we not, in time, have the whole of South America, some of the West India islands, and, possibly, Great Britain? And if so, upon the same principle that we form the Territory of Orleans into a State, we may form these Territories into as many separate States as we please, and admit them into the Union with all the powers and privileges that any of our States now possess and enjoy. Then what will become of the Old United States, who first entered into the compact contained in the constitution, and for whose benefit alone that instrument was made and executed. Instead of these new States being annexed to us, we shall be annexed to them, lose our independence, and become altogether subject to their control. Besides, it may be recollected, that, when our independence and national existence was acknowledged by the other nations of the world, the Territory now proposed to be received into the Union made no part of the United States so acknowledged; if, therefore, this be done, a jealousy may be created in those other nations, and, possibly, they may have some reason to complain that, in addition to the immense increase of population within our ancient limits, we should extend our boundaries so far as to include other countries. This, however, by those who justify the Governments of other nations in the pursuit of their projects for universal domination, will be thought deserving of very little consideration. But, it may be well questioned how far the taking of positions that may lead to war comports with that pacific disposition which the people of the United States have been so anxious to maintain; and, whether the obligation they have placed themselves under, by adopting the constitution, to guaranty to every State in the Union a republican form of government, and to protect each of them against invasion, can be made to extend to the Orleans Territory; or, whether the President can have any authority to send our militia there to repel any invasion or suppress any insurrection that may happen there, are inquiries worth some attention before we pass this act. And there will be found another difficulty in the way of carrying the object of it into full effect. If the people of that Territory are admitted into the Union as a State, on an equal footing with any of the _now_ United States, they will have a right to send to our Legislature not only Representatives in proportion to their numbers, but, also, two Senators, and the constitution makes it a necessary qualification for a Senator that he should have been a citizen of the United States at least nine years, a period further back than it can be pretended that any of the people of that Territory ever belonged to the United States, unless they be emigrants, and have not, thereby, lost their citizenship. And a President of the United States they never can have from among their own people, unless he be yet to be born, for no person except a natural born citizen, or a citizen of the United States at the time of the adoption of the constitution, can be eligible to the office of President. But, it has been said that Congress have already passed a law, wherein they have stipulated with those people, that they shall be formed into a State when they shall have gained a certain number of inhabitants. In answer to this, it is sufficient to say that, if it be incorrect to promise to do a wrong thing, it is more incorrect still to do it. If this bill be unconstitutional, so was that law. But, in opposition to all this, it will, undoubtedly, be said that several new States have been formed by Congress since the adoption of the constitution, and that they are well authorized by that instrument. This is admitted. "New States may be admitted by the Congress into this Union." But, if we look into the article where this authority is to be found, we shall find it applicable to the territories then included within the limits of the United States, or to a division of some of the States then already formed; beyond which, it is believed, this authority has never been exercised. The Old Confederation did expressly authorize the admission of Canada into the Union, but the present constitution does not. If such an authority had been proposed to have been given to Congress by it, perhaps it had never been adopted. If, however, it should be believed that this bill might pass into a law, in strict conformity with the spirit and letter of the constitution, it is apprehended that the measure would be extremely impolitic and inexpedient at the present moment. We have not even the possession of a part of the country proposed to be embraced by this bill, and both title and possession have been disputed. It is true we have bought the whole country, and dearly paid for it, but still, if we have not a just title, we ought not to expect to hold it; and it is now admitted to be a subject of negotiation; and, even if our titles shall be found to be good, and we gain a peaceable possession, still, if we have a right to buy a thing, I know not why we may not sell it. But, as the expediency of this measure has been considered by other gentlemen, I forbear to add to the remarks I have already made. Mr. MILLER said it would be observed that there were two applications to this House for admission into the Union as States; one from the Mississippi Territory, and the other from the Orleans Territory. The latter only, said he, is contemplated by the bill before you. Neither of these Territories have the number of inhabitants required by law to enable them to demand their admission into the Union as a matter of right. It may, therefore, be said with propriety to be an application for a favor, going directly to an amicable discussion, and which we may grant or refuse without running the risk of breaking any legal or moral obligation. It has been objected against this bill that the population of the State proposed will not be American. Without intimating how far this consideration may have influence on my mind, under the circumstances in which that country has been lately placed, I cannot, however, but remark that it is natural for man to carry his feelings and prejudices about him. I was born in Virginia, sir, and I have not yet lost some of my Virginia feelings, notwithstanding an absence of fifteen years, and I cannot see why we should expect the people of Orleans to act and feel differently from other people, more particularly, when the French nation is towering so far above the other nations of the earth; they will have a secret pride in their glory, they will have some attachments, to what extent I cannot say; but, inasmuch as we know that if we send Paddy to Paris, that Paddy he will come back, the idea is certainly not unworthy of our consideration. The bill on your table has another objection, of some weight with me, in relation to its policy. You propose to do them a favor by granting them an admission to the rank of other States before they can legally demand it, and, at the same time, you propose terms beyond which they cannot go. This, sir, resembles very much a polite invitation to walk in, but under an injunction to see that your feet are well cleaned, and your toes turned out. It is a niggardly sort of policy that I am sorry to see engrafted in the bill. If you design to be liberal, be so; do not destroy your liberality by an ungenerous sentiment. Again, sir, there are objections to the bill, as presented, that renders it impossible for me to give it my sanction. It will be seen, sir, that the bill proposes to annex that portion of West Florida in dispute between this and the Spanish Government to the State to be formed out of the Territory of Orleans. The President has declared to the world that this portion of the country, in our hands, shall be subject to mutual arrangements, hereafter to be entered into between the two Governments. But, once annex it to a State and the power to negotiate ceases. What power have we to negotiate about the territory of any of the States? We have none. Again, sir, I never will consent that the bay of Mobile shall be annexed to any State which includes New Orleans and the mouth of the Mississippi, unless, indeed, they are both included in the same State with the whole country north, up to the Tennessee line. If you annex West Florida to the State to be composed of the Orleans Territory, they will then possess a narrow slip of the country, including nearly the whole of the seacoast of Orleans, (including the bay of Mobile,) with a most extensive up-country, composed of a great part of the Mississippi Territory, and, I may say, Tennessee, wholly dependent on them, perhaps, for leave to go out into the bay, and, certainly, for the improvement of its navigation. And this, sir, is rendered more probable, as we know men act mostly for their own interest. And, as New Orleans, from its present population, will govern the councils of that State, let me ask, sir, if it will not be their interest, as much as possible, to divert the 'trade and capital from the Mobile to the Mississippi? And what security have we that she will not do so? None; and from the nature of our Government can have none. Upon the plan I propose, from the extent of the country proposed to be annexed, the people who inhabit it, in time, will have the preponderance, and their interest will dictate the proper course to be pursued in relation to the free passage of the Mobile. We may, also, with some certainty, pronounce that the population of the Mississippi, if it is not now, will, in a few years, be the greatest slave population, in proportion to the whites, of any country in the United States. Is it, then, of no consequence to have those settlements so connected with others, composed of whites, as that they may, at all times, be able, within the limits of their jurisdiction, to suppress insurrections of that sort? Is not this a consideration that ought to be taken into account? I, therefore, move you, sir, to strike out the whole of the bill, from the words "a bill," for the purpose of inserting a section by way of amendment, the effect of which will be to consolidate both the Territories into a single State, which will include the whole of the country belonging to the United States, east of the Mississippi, and south of the State of Tennessee. This plan will avoid the objections made to the want of numbers, and will give, also, an American population to the State, if that should be desirable; and will, also, avoid the difficulty occasioned from the situation in which West Florida is at this time placed. To this plan I can see but one objection that ought to have any sort of influence, and that, sir, exists more in idea than reality. It is to the size of the proposed State. Divide and subdivide this country as you will, their interests, in a political point of view, will be the same. Their representation in this House will neither be increased nor diminished by a consolidation. In the Senate, the plan proposed is greatly to the advantage of the old States. In that House, they will have but two Senators instead of four or six, according to the number of States that may be made. There is, also, no legal objection to this plan. The Treaty of 1803 with the French Republic, only provides for their admission into the Union, without regard to their territorial limits, and there is no law repugnant to the plan. Mr. GHOLSON said that the observations of the gentleman from North Carolina (Mr. MACON) had rendered it unnecessary for him to make many of the remarks to the committee which he had intended. In no point of view, said Mr. G., in which this subject has been considered, can I perceive any reason for adopting the amendment offered by the gentleman from Tennessee, (Mr. MILLER.) If that gentleman will only advert to the treaty of cession between France and the United States, and to the act of Congress passed pursuant to that treaty, he will readily discover that the amendment he proposes cannot be sanctioned without a manifest violation of public faith. By the third article of the treaty, it is stipulated that "the inhabitants of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." On the second of March, 1805, Congress proceeded by an act of legislation to fulfil this engagement with France; and accordingly, by the 7th section of that act, provided "that whenever it shall be ascertained by an actual census or enumeration of the inhabitants of the Territory of Orleans, taken by proper authority, that the number of free inhabitants included therein shall amount to sixty thousand, they shall thereupon be authorized to form for themselves a constitution and State government, and be admitted into the Union upon the footing of the original States, in all respects whatever, conformably to the provisions of the 3d article of the treaty concluded at Paris on the thirtieth of April, one thousand eight hundred and three, between the United States and the French Republic." Now, if to the Orleans Territory you add the Mississippi Territory, and of the _two_ erect _one_ State, you evidently will not comply either with your stipulations with the French Republic, or with your covenant to the Orleans Territory. For, by these you have agreed that Orleans shall become a State and not part of a State only; and there is a wide and substantial distinction between incorporating that Territory, together with other Territories into a single State, as but a fractional part thereof, and authorizing the people of that Territory "to form for themselves a constitution and State government, and to be admitted into the Union upon the footing of the original States." In the former case they may possibly have no influence whatever in appointments to the other branch of the Legislature, and all their interior regulations may also, by possibility, be dictated to them by an ascendant population in the remainder of the State. In the latter case they will, of course, have the entire direction in regard to their system of police and their State institutions, and will moreover have a right, not participated in by any other persons, of sending two Senators to Congress. In fact they will be a distinct State sovereignty. Surely, then, there is a great and obvious difference between what we have so often promised these people, and what is now proposed for them. Mr. BIBB conceived that the House could not adopt such an amendment as that proposed, without the consent of Georgia; for without her consent they could not make an addition to or division of the Mississippi Territory. It was true, he said, that he had on a former day proposed to make an addition of territory to the Mississippi Territory, but it was only during such time as it should remain a Territory. To this there could be no objection, as there was no prohibition to it in the compact. It had been his intention, if the House had thought proper to sanction his motion, to have made a proposition to the State of Georgia to admit that territory to be incorporated with the Mississippi. The amendment now offered evidently proposed a violation of the compact with Georgia. Mr. MACON said this bill had taken rather a curious course. The principle and detail had both been attacked; and yet no proposal had been made to try whether the House would legislate on the subject. He had proposed an amendment to do away some of the objections to the detail; but instead of being allowed to amend the bill, the House were met by a constitutional objection, from the gentleman from Massachusetts (Mr. WHEATON) to the power of Congress to make a State. If this objection was good, Mr. M. said, he admitted the bill ought not to pass; for, Mr. M. said, on this point he could not agree with the gentleman from Tennessee, that because a treaty had been made in relation to it, it was too late to object to the constitutionality. Mr. M. said no; it was never too late to return to the constitution. If the article of the constitution, however, did not mean that Congress might take States out of new Territories, what did it mean? There was no occasion for it in relation to the old Territories; for the ordinance of the Old Congress had secured to them the right; and these ordinances were as binding as the treaties which Congress had entered into. The change of the form of Government did not affect national obligations. The right to become States was one which Congress could not take from the old Territories. The right of creating States out of acquired Territories, was one which he had always contended for; and it had been stated by at least one of those who formed the constitution, that this article had reference to Canada. "New States may be admitted by the Congress into the Union." At the time this provision was made, Florida and Louisiana were not thought of. Canada was the Territory kept in view. Much, sir, said Mr. M., as the United States wanted the southern country, and great as is the convenience of possessing it, I never would have consented to have taken it to have kept them in Territorial government forever. I do not want provinces. I am extremely sorry, sir, that whenever this subject is agitated, we are met by the objection that these people are of French descent. I have before expressed my opinion on this subject, and it is needless to repeat it; but if gentlemen wish them to become our brethren in reality, make them our equals; act just towards them. Do unto them as you would they should do unto you, and make them your friends. I know an opinion is entertained that only those who are of the favored race can be free. I know, sir, that the English nation has been freer than any other; but the time has been that Holland, Sweden, and others, have been free--power, however, overcame right, and the people lost their liberties. I cannot consider it any question for our consideration, who shall be their Senators and who their Representatives. They have had some time a delegate, and will find delegates in the Senate as well as the House of Representatives. It seems to me, sir, that the gentleman from Tennessee need not to have referred to the dispute between the Potomac and the Delaware, because the constitution has put an end to these sources of strife. It is true, sir, that the Orleans Territory is a slave country, and I would be glad if they could get clear of them; but that does not at all affect this question. The present situation of Mobile and Orleans is the reason why I want some alteration in the bill. I would rather not have them under the same Government. I have endeavored to ascertain the present population of the Orleans Territory, so called. There is a difference of opinion among those well informed on the subject, from 45,000 to 55,000. He wished gentlemen would permit them to try the question on the principle of the bill, and ascertain whether the House would do any thing with it or not. Mr. POINDEXTER observed that the proposition of the gentleman from Tennessee for incorporating the present Mississippi Territory with West Florida and the Island of Orleans, to the sea, with a view to form of the whole one State, did not meet his approbation. From the Tennessee line, which would be the northern boundary of the State, to the confluence of the Mississippi with the bay of Mexico, is a distance of from eight hundred to a thousand miles, in the nearest direction, and following the meanders of the river, not less in my opinion than twelve hundred miles. Taking the distance generally from the Mississippi to the Georgia line, I should judge it to be about five hundred miles, and from the northernmost point of the State of Georgia to the junction of the Chatahoochee with the sea, cannot be far short of a thousand miles. This vast tract of country, in my humble conception, is too extensive for the purpose of local State government. Indeed, sir, it could hardly be expected, over such an immense territory, interspersed with numerous tribes of Indians, that even the Executive functionaries of Government could be able to perform their duty in the execution of their laws. That geographical limits, other than those which now divide the Orleans and Mississippi Territories, might be designated, to comport more with the future convenience and prosperity of the country, cannot be denied. I would suggest for the reflection of gentlemen who have to act on this subject, the expediency of making the great river Mississippi the high road between the Eastern and Western States, to be formed on its waters; that no one State should possess both banks of that river. In that event, to commence on the eastern shore at the mouth of the Yazoo, in latitude 32 30; thence in a direct line to the head-waters of the Chatahoochee, thence to the sea, and along the coast, in a southwestern direction, to Lake Barrataria, thence up the Chafalaga to its junction with the Mississippi, and thence up that river to the mouth of the Yazoo. This tract of country would include about three degrees of latitude; it would combine all the settlements on the Eastern side of the Mississippi, except the county of Madison, which could be disposed of as the wisdom of Congress might hereafter direct. There are various political considerations which operate in favor of the formation of such a State. The people of the Territory of Orleans are petitioning to become an independent State, and I for one hope the prayer of their petition will in substance be granted. It is said that the French population of the city of New Orleans are unfriendly to the American Government. That they have strong prejudices in favor of France. Although, sir, I do not attach so much importance to that circumstance as some gentlemen do, I am willing to admit that French emigrants in Louisiana feel an attachment to their native country. I do not blush to say that were I in France, or any other foreign country, I could never forget that I was born an American citizen. I could never relinquish my attachments to the land of freedom, in which I inhaled my first breath. Judging therefore, of the feelings of others, by my own, I cannot doubt that many influential French inhabitants of New Orleans entertain a predilection for the country which gave them birth. But, sir, within the limits which I have submitted to the consideration of the committee, there is an American population at least sufficient to neutralize every exotic prejudice which may exist in New Orleans. A people whose origin, whose feelings and principles are American, and who are prepared to rally around the standard of the constitution, in every scene of difficulty and of danger. Mr. MILLER'S amendment was not agreed to. MONDAY, January 14. _Orleans Territory._ The House resumed the consideration of the engrossed bill to enable the people of the Territory of Orleans to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes. The bill being on its final passage-- Mr. PITKIN said he had heretofore stated that he had some objections to the bill, which he had intended to have stated to the House when the bill was capable of amendment, but that he had not an opportunity so to do. I have stated, said Mr. P., that it was probable there would be some difficulty between Orleans, when it becomes a State, and the United States, respecting the extent of the State westward. I stated that the United States, in consequence of the purchase of Louisiana with the same extent that it had when Spain and France possessed it, had claimed the territory as far as the river called Rio Bravo; that the negotiations on this subject between the Governments of the United States and Spain were probably unknown to many members of the House, and that it required a pretty accurate knowledge of them, of the extent of the claim, and of the geography of the country, to understand precisely what I meant. I stated that there was an extent of country between a meridional line passing through Nacogdoches and Rio Bravo, of four or five hundred miles in width, which the United States had claimed as being their property. In the negotiations between the two countries, the United States offered to cede all the country between the Rio Bravo and the Colorado running east of it to Spain, on the condition that Spain would cede to the United States all the territory west of the Perdido. This proposition was rejected. Our Commissioners were instructed to assert our title as far as the Rio Bravo, or at least to the Bay of St. Bernard. It is so stated by the President of the United States in the introduction to the compilation of the land laws, in which he states that we unquestionably have a right to the country as far west as the sources of the rivers which fall into the Mississippi, to the sources of the Red River, Arkansas, and Missouri; that with respect to the territory immediately bounding on the Gulf of Mexico, we have claims to the "province of Texas," which it is well known is a very large province. By the bill before us, according to this construction, jurisdiction is extended over this very province; and it may be, and in fact will be, in the power of the State of Orleans to say that our limits extend so far, and therefore to extend their jurisdiction in like manner. In my apprehension, therefore, it is important, while we are making this Territory a State, where the boundaries are disputed, to retain in our own hands the power of settling them. It is known that, by the law which passed providing for the government of the Territory of Orleans, we had liberty to alter the boundary before we made them a State, but not after. Will it not be in the power of the new State to insist on their right to jurisdiction over the territory, at least as far west as the Colorado, and to prevent the United States from ceding any part of it? For instance, sir, the United States may wish, as we have taken Florida as far as the Perdido, subject to future negotiation, to make this arrangement: to cede to Spain a certain proportion west for East Florida. Now, sir, I ask when we have made this country a State if we can do this? I believe it will be said by every person that we cannot, after she becomes a State, alter the boundaries without her consent. I do apprehend, therefore, there will be difficulties on the subject hereafter, if the United States should attempt to settle the boundary in a manner disagreeable to the State; because, if they cannot extend their jurisdiction west of a meridional line passing through Nacogdoches, the territory will be in extent east and west but about one hundred miles, and north and south about one hundred and twenty, and this will make them comparatively a small State. As the United States have settled a provisional line, to wit: a meridional line through Nacogdoches, it should not be in the power of the new State to extend its jurisdiction beyond that line. Provision might be made in this way: The western boundary might be made to conform to the provisional line; and a provision might then be made that there should be reserved to the United States the privilege of adding to it whatever land it should acquire westwardly. Such a provision would leave us at liberty to settle the limits without the interference of that State, and without, I apprehend, much difficulty. This was done in relation to the State of Ohio. Unless the right had been reserved, the consent of the State would have been necessary to a cession, or other alteration of its boundary. Such a course in this case will be perfectly safe for the United States, as well as for the new State. I wish we may so regulate the Territory as there may not in future be any collision between the State and the United States. The province of Texas is in the viceroyalty of New Spain. We know that the Viceroy sent his troops to oppose the passage of our troops, and a provisional line was established. New Spain is very powerful, and I should be very sorry that the new State should have power to embroil the United States with it. I would ask the chairman of the committee who reported this bill, what were his views respecting the western boundary, and how far it was his idea that the new State should extend, and whether it would not comport with his ideas that the change which I have suggested should be made? I could have wished that the bill was in such a state of its progress that I could have moved an amendment; but, as it is, unless I am satisfied that we shall not be involved in difficulty by the consequences I have stated, I shall be unwilling to pass the bill, and must vote against it. Mr. QUINCY.--Mr. Speaker, I address you, sir, with an anxiety and distress of mind with me wholly unprecedented. The friends of this bill seem to consider it as the exercise of a common power; as an ordinary affair; a mere municipal regulation which they expect to see pass without other questions than those concerning details. But, sir, the principle of this bill materially affects the liberties and rights of the whole people of the United States. To me, it appears that it would justify a revolution in this country; and that, in no great length of time, may produce it. When I see the zeal and perseverance with which this bill has been urged along its Parliamentary path, when I know the local interests and associated projects, which combine to promote its success, all opposition to it seems manifestly unavailing. I am almost tempted to leave, without a struggle, my country to its fate. But, sir, while there is life, there is hope. So long as the fatal shaft has not yet sped, if Heaven so will it, the bow may be broken, and the vigor of the mischief-meditating arm withered. If there be a man in this house, or nation, who cherishes the constitution under which we are assembled, as the chief stay of his hope, as the light which is destined to gladden his own day, and to soften even the gloom of the grave, by the prospect it sheds over his children, I fall not behind him in such sentiments. I will yield to no man in attachment to this constitution, in veneration for the sages who laid its foundations, in devotion to those principles which form its cement and constitute its proportions. What, then, must be my feelings; what ought to be the feelings of a man cherishing such sentiments, when he sees an act contemplated which lays ruin at the root of all these hopes? When he sees a principle of action about to be usurped, before the operation of which the bands of this constitution are no more than flax before the fire, or stubble before the whirlwind? When this bill passes, such an act is done, and such a principle usurped. Mr. Speaker, there is a great rule of human conduct, which he who honestly observes cannot err widely from the path of his sought duty. It is, to be very scrupulous concerning the principles you select as the test of your rights and obligations; to be very faithful in noticing the result of their application; and to be very fearless in tracing and exposing their immediate effects and distant consequences. Under the sanction of this rule of conduct, I am compelled to declare it as my deliberate opinion, that, if this bill passes, the bonds of this Union are virtually dissolved; that the States which compose it are free from their moral obligations, and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation--amicably if they can, violently if they must. Mr. QUINCY was here called to order by Mr. POINDEXTER. Mr. QUINCY repeated, and justified the remark he had made, which, to save all misapprehension, he committed to writing, in the following words: "If this bill passes, it is my deliberate opinion that it is virtually a dissolution of this Union; that it will free the States from their moral obligation, and, as it will be the right of all, so it will be the duty of some, definitely to prepare for a separation, amicably if they can, violently if they must." After some little confusion, Mr. POINDEXTER required the decision of the Speaker whether it was consistent with the propriety of debate, to use such an expression. He said it was radically wrong for any member to use arguments going to dissolve the Government, and tumble this body itself to dust and ashes. It would be found, from the gentleman's statement of his language, that he had declared the right of any portion of the people to separate---- Mr. QUINCY wished the Speaker to decide, for if the gentleman was permitted to debate the question, he should lose one-half of his speech. The SPEAKER decided that great latitude in debate was generally allowed; and that, by way of argument against a bill, the first part of the gentleman's observations was admissible; but the latter member of the sentence, viz.: "That it would be the duty of some States to prepare for a separation, amicably if they can, violently if they must," was contrary to the order of debate. Mr. QUINCY appealed from his decision, and required the yeas and nays on the appeal. The question was stated thus: "Is the decision of the SPEAKER correct?" And decided--53 yeas; 56 nays. So the decision of the speaker was reversed; Mr. QUINCY'S observations were declared to be in order; and he proceeded. I rejoice, Mr. Speaker, at the result of this appeal. Not from any personal consideration, but from the respect paid to the essential rights of the people, in one of their representatives. When I spoke of a separation of the States as resulting from the violation of the constitution, contemplated in this bill, I spoke of it as of a necessity, deeply to be deprecated; but as resulting from causes so certain and obvious, as to be absolutely inevitable when the effect of the principle is practically experienced. It is to preserve, to guard the constitution of my country, that I denounce this attempt. I would rouse the attention of gentlemen from the apathy with which they seem beset. These observations are not made in a corner; there is no low intrigue; no secret machinations. I am on the people's own ground--to them I appeal, concerning their own rights, their own liberties, their own intent in adopting this constitution. The voice I have uttered, at which gentlemen startle with such agitation, is no unfriendly voice. I intended it as a voice of warning. By this people, and by the event, if this bill passes, I am willing to be judged, whether it be not a voice of wisdom. The bill, which is now proposed to be passed, has this assumed principle for its basis--that the three branches of this National Government, without recurrence to conventions of the people, in the States, or to the Legislatures of the States, are authorized to admit new partners to a share of the political power, in countries out of the original limits of the United States. Now, this assumed principle I maintain to be altogether without any sanction in the constitution. I declare it to be a manifest and atrocious usurpation of power; of a nature, dissolving, according to undeniable principles of moral law, the obligations of our national compact; and leading to all the awful consequences which flow from such a state of things. Concerning this assumed principle, which is the basis of this bill, this is the general position on which I rest my argument--that if the authority, now proposed to be exercised, be delegated to the three branches of the Government, by virtue of the constitution, it results either from its general nature, or from its particular provisions. I shall consider distinctly both these sources, in relation to this pretended power. Touching the general nature of the instrument called the Constitution of the United States, there is no obscurity--it has no fabled descent, like the palladium of ancient Troy, from the heavens. Its origin is not confused by the mists of time, or hidden by the darkness of past, unexplored ages; it is the fabric of our day. Some now living, had a share in its construction--all of us stood by, and saw the rising of the edifice. There can be no doubt about its nature. It is a political compact. By whom? And about what? The preamble to the instrument will answer these questions: "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution, for the United States of America." It is, "we, the people of the United States, for ourselves and our posterity;" not for the people of Louisiana; nor for the people of New Orleans, or of Canada. None of these enter into the scope of the instrument; it embraces only "the United States of America." Who those are, it may seem strange, in this place, to inquire. But truly, sir, our imaginations have, of late, been so accustomed to wander after new settlements to the very end of the earth, that it will not be time ill-spent to inquire what this phrase means, and what it includes. These are not terms adopted at hazard; they have reference to a state of things existing anterior to the constitution. When the people of the present United States began to contemplate a severance from their parent State, it was a long time before they fixed definitely the name by which they would be designated. In 1774, they called themselves "the Colonies and Provinces of North America." In 1775, "the Representatives of the United Colonies of North America." In the Declaration of Independence, "the Representatives of the United States of America." And finally, in the Articles of Confederation, the style of the confederacy is declared to be "the United States of America." It was with reference to the old articles of confederation, and to preserve the identity and established individuality of their character, that the preamble to this constitution, not content, simply, with declaring that it is "we, the people of the United States," who enter into this compact, adds that it is for "the United States of America." Concerning the territory contemplated by the people of the United States, in these general terms, there can be no dispute; it is settled by the treaty of peace, and included within the Atlantic Ocean, and St. Croix, the lakes, and more precisely, so far as relates to the frontier, having relation to the present argument, within "a line to be drawn through the middle of the river Mississippi, until it intersect the northernmost part of the thirty-first degree of north latitude to the river Apalachicola, thence along the middle of this river to its junction with the Flint River, thence straight to the head of the St. Mary's River, and thence down the St. Mary's to the Atlantic Ocean." I have been thus particular to draw the minds of gentlemen, distinctly, to the meaning of the terms used in the preamble; to the extent which "the United States" then included; and to the fact that neither New Orleans nor Louisiana were within the comprehension of the terms of this instrument. It is sufficient for the present branch of my argument to say, that there is nothing in the general nature of this compact from which the power contemplated to be exercised in this bill results. On the contrary, as the introduction of a new associate in political power implies, necessarily, a new division of power, and consequent diminution of the relative proportion of the former proprietors of it; there can, certainly, be nothing more obvious, than that from the general nature of the instrument no power can result to diminish and give away to strangers any proportion of the rights of the original partners. If such a power exists, it must be found, then, in the particular provisions in the constitution. The question now arising is, in which of these provisions is given the power to admit new States, to be created in territories, beyond the limits of the old United States. If it exists anywhere, it is either in the third section of the fourth article of the constitution, or in the treaty-making power. If it result from neither of these, it is not pretended to be found anywhere else. That part of the third section of the fourth article, on which the advocates of this bill rely, is the following: "New States may be admitted, by the Congress, into this Union; but no new States shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress." I know, Mr. Speaker, that the first clause of this paragraph has been read, with all the superciliousness of a grammarian's triumph. "New States may be admitted, by the Congress, into this Union." Accompanied with this most consequential inquiry: "Is not this a new State to be admitted? And is not here an express authority?" I have no doubt this is a full and satisfactory argument to every one, who is content with the mere colors and superficies of things. And if we were now at the bar of some stall-fed justice, the inquiry would insure victory to the maker of it, to the manifest delight of the constables and suitors of his court. But, sir, we are now before the tribunal of the whole American people; reasoning concerning their liberties, their rights, their constitution. These are not to be made the victims of the inevitable obscurity of general terms; nor the sport of verbal criticism. The question is concerning the intent of the American people, the proprietors of the old United States, when they agreed to this article. Dictionaries and spelling-books are, here, of no authority. Neither Johnson, nor Walker, nor Webster nor Dilworth, has any voice in this matter. Sir, the question concerns the proportion of power, reserved by this constitution, to every State in the Union. Have the three branches of this Government a right, at will, to weaken and outweigh the influence, respectively secured to each State, in this compact, by introducing, at pleasure, new partners, situate beyond the old limits of the United States? The question has not relation merely to New Orleans. The great objection is to the principle of the bill. If this bill be admitted, the whole space of Louisiana, greater, it is said, than the entire extent of the old United States, will be a mighty theatre, in which this Government assumes the right of exercising this unparalleled power. And it will be; there is no concealment, it is intended to be exercised. Nor will it stop, until the very name and nature of the old partners be overwhelmed by new comers into the Confederacy. Sir, the question goes to the very root of the power and influence of the present members of this Union. The real intent of this article is, therefore, an inquiry of most serious import; and is to be settled only by a recurrence to the known history and known relations of this people and their constitution. These, I maintain, support this position: that the terms "new States," in this article, do intend new political sovereignties, to be formed within the original limits of the United States; and do not intend new political sovereignties with territorial annexations, to be erected without the original limits of the United States. I undertake to support both branches of this position to the satisfaction of the people of these United States. As to any expectation of conviction on this floor, I know the nature of the ground and how hopeless any arguments are, which thwart a concerted course of measures. I recur, in the first place, to the evidence of history. This furnishes the following leading fact: that before, and at the time of the adoption of this constitution, the creation of new political sovereignties within the limits of the old United States was contemplated. Among the records of the old Congress will be found a resolution, passed as long ago as the 10th day of October, 1780, contemplating the cession of unappropriated lands to the United States, accompanied by a provision that "they shall be disposed of for the common benefit of the United States, and be settled and formed into distinct Republican States, which shall become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence, as the other States." Afterward, on the 7th of July, 1786, the subject of "laying out and forming into States" the country lying northwest of the river Ohio, came under the consideration of the same body; and another resolution was passed recommending to the Legislature of Virginia to revise their act of cession, so as to permit a more eligible division of that portion of territory derived from her; "which States," it proceeds to declare, "shall hereafter become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence, as the original States, in conformity with the resolution of Congress of the 10th of October, 1780." All the Territories to which these resolutions had reference, were undeniably within the ancient limits of the United States. Here, then, is a leading fact, that the article in the constitution had a condition of things, notorious at the time when it was adopted, upon which it was to act, and to meet the exigency resulting from which, such an article was requisite. That is to say: new States, within the limits of the United States, were contemplated at the time when the foundations of the constitution were laid. But we have another authority upon this point, which is, in truth, a cotemporaneous exposition of this article of the constitution. I allude to the resolution, passed on the 3d of July, 1788, in the words following: [Here the resolution was read.] In this resolution of the old Congress, it is expressly declared, that the Constitution of the United States having been adopted by nine States, an act of the old Congress could have no effect to make Kentucky a separate member of the Union, and that, although they thought it expedient that it should be so admitted, yet that this could only be done under the provisions made in the new constitution. It is impossible to have a more direct contemporaneous evidence that the case contemplated in this article was that of the Territories within the limits of the United States; yet the gentleman from North Carolina, (Mr. MACON,) for whose integrity and independence I have very great respect, told us the other day, that "if this article had not territories within the limits of the old United States to act upon, it would be wholly without meaning. Because the ordinance of the old Congress had secured the right to the States within the old United States, and a provision for that object, in the new constitution, was wholly unnecessary." Now, I will appeal to the gentleman's own candor, if the very reverse of the conclusion he draws is not the true one, after he has considered the following fact: That, by this ordinance of the old Congress, it was declared, that the boundaries of the contemplated States, and the terms of their admission, should be, in certain particulars, specified in the ordinance, subject to the control of Congress. Now, as by the new constitution the old Congress was about to be annihilated, it was absolutely necessary for the very fulfilment of this ordinance, that the new constitution should have this power for the admission of new States within the ancient limits, so that the ordinance of the old Congress, far from showing the inutility of such a provision for the Territories within the ancient limits, expressly proves the reverse, and is an evidence of its necessity to effect the object of the ordinance itself. I think there can be no more satisfactory evidence adduced or required of the first part of the position, that the terms "new States" did intend new political sovereignties within the limits of the old United States. For it is here shown, that the creation of such States, within the territorial limits fixed by the treaty of 1783, had been contemplated; that the old Congress itself expressly asserts that the new constitution gave the power for that object; that the nature of the old ordinance required such a power, for the purpose of carrying its provisions into effect, and that it has been from the time of the adoption of the federal constitution, unto this hour, applied exclusively to the admission of States, within the limits of the old United States, and was never attempted to be extended to any other object. Now, having shown a purpose, at the time of the adoption of the Constitution of the United States, sufficient to occupy the whole scope of the terms of the article, ought not the evidence be very strong to satisfy the mind, that the terms really intended something else, besides this obvious purpose; that it may be fairly extended to the entire circle of the globe, wherever title can be obtained by purchase, or conquest, and the new partners in the political power may be admitted at the mere discretion of this Legislature, any where that it wills. A principle thus monstrous is asserted in this bill. But I think it may be made satisfactorily to appear not only that the terms "new States" in this article did mean political sovereignties to be formed within the original limits of the United States, as has just been shown, but, also, negatively, that it did not intend new political sovereignties, with territorial annexations, to be created without those original limits. This appears first from the very tenor of the article. All its limitations have respect to the creation of States within the original limits. Two States shall not be joined; no new State shall be erected within the jurisdiction of any other State, without the consent of the Legislatures of the States concerned as well as of Congress. Now, had foreign territories been contemplated, had the new habits, customs, manners, and language of other nations been in the idea of the framers of this constitution, would not some limitation have been devised, to guard against the abuse of a power, in its nature so enormous, and so obviously, when it occurred, calculated to excite just jealousy among the States, whose relative weight would be so essentially affected, by such an infusion at once of a mass of foreigners into their Councils, and into all the rights of the country? The want of all limitation of such power would be a strong evidence, were others wanting, that the powers, now about to be exercised, never entered into the imagination of those thoughtful and prescient men, who constructed the fabric. But there is another most powerful argument against the extension of this article to embrace the right to create States without the original limits of the United States, deducible from the utter silence of all debates at the period of the adoption of the Federal Constitution, touching the power here proposed to be usurped. If ever there was a time in which the ingenuity of the greatest men of an age was taxed to find arguments in favor of and against any political measure, it was at the time of the adoption of this constitution. All the faculties of the human mind were, on the one side and the other, put upon their utmost stretch, to find the real and imaginary blessings or evils, likely to result from the proposed measure. Now I call upon the advocates of this bill to point out, in all the debates of that period in any one publication, in any one newspaper of those times, a single intimation, by friend or foe to the constitution, approving or censuring it for containing the power here proposed to be usurped, or a single suggestion that it might be extended to such an object as is now proposed. I do not say that no such suggestion was ever made. But this I will say that I do not believe there is such a one any where to be found. Certain I am, I have never been able to meet the shadow of such a suggestion, and I have made no inconsiderable research upon the point. Such may exist--but until it be produced, we have a right to reason as though it had no existence. No, sir. The people of this country at that day had no idea of the territorial avidity of their successors. It was, on the contrary, an argument, urged against the success of the project, that the territory was too extensive for a republican form of government. But, now there is no limits to our ambitious hopes. We are about to cross the Mississippi. The Missouri and Red River are but roads, on which our imagination travels to new lands and new States to be raised and admitted (under the power, now first usurped) into this Union, among undiscovered lands in the west. But it has been suggested that the Convention had Canada in view, in this article, and the gentleman from North Carolina told this House, that a member of the Convention, as I understood him, either now, or lately a member of the Senate, informed him that the article had that reference. Sir, I have no doubt the gentleman from North Carolina has had a communication such as he intimates. But, for myself, I have no sort of faith in these convenient recollections, suited to serve a turn, to furnish an apology for a party, or give color to a project. I do not deny, on the contrary I believe it very probable, that among the coursings of some discursive and craving fancy, such thoughts might be started; but that is not the question. Was this an avowed object in the Convention when it formed this article? Did it enter into the conception of the people when its principles were discussed? Sir, it did not, it could not. The very intention would have been a disgrace both to this people and the Convention. What, sir! Shall it be intimated; shall it for a moment be admitted, that the noblest and purest band of patriots this or any other country ever could boast, were engaged in machinating means for the dismemberment of the territories of a power to which they had pledged friendship, and the observance of all the obligations which grow out of a strict and perfect amity? The honor of our country forbids and disdains such a suggestion. But there is an argument stronger, even, than all those which have been produced, to be drawn from the nature of the power here proposed to be exercised. Is it possible that such a power, if it had been intended to be given by the people, should be left dependent upon the effect of general expressions; and such too, as were obviously applicable to another subject; to a particular exigency contemplated at the time? Sir, what is this power we propose now to usurp? Nothing less than a power, changing all the proportion of the weight and influence possessed by the potent sovereignties composing this Union. A stranger is to be introduced to an equal share, without their consent. Upon a principle, pretended to be deduced from the constitution--this Government, after this bill passes, may and will multiply foreign partners in power, at its own mere motion; at its irresponsible pleasure; in other words, as local interests, party passions, or ambitious views may suggest. It is a power that, from its nature, never could be delegated; never was delegated; and as it breaks down all the proportions of power guarantied by the constitution to the States, upon which their essential security depends, utterly annihilates the moral force of this political contract. Would this people, so wisely vigilant concerning their rights, have transferred to Congress a power to balance, at its will, the political weight of any one State, much more of all the States, by authorizing it to create new States at its pleasure, in foreign countries, not pretended to be within the scope of the constitution or the conception of the people, at the time of passing it? This is not so much a question concerning the exercise of sovereignty, as it is who shall be sovereign. Whether the proprietors of the good old United States shall manage their own affairs in their own way; or whether they, and their constitution, and their political rights, shall be trampled under foot by foreigners introduced through a breach of the constitution. The proportion of the political weight of each sovereign State, constituting this Union, depends upon the number of the States which have a voice under the compact. This number the constitution permits us to multiply at pleasure, within the limits of the original United States; observing only the expressed limitations in the constitution. But when in order to increase your power of augmenting this number you pass the old limits, you are guilty of a violation of the constitution in a fundamental point; and in one, also, which is totally inconsistent with the intent of the contract, and the safety of the States which established the association. What is the practical difference to the old partners, whether they hold their liberties at the will of a master, or whether, by admitting exterior States on an equal footing with the original States, arbiters are constituted, who by availing themselves of the contrariety of interests and views which in such a confederacy necessarily will arise, hold the balance among the parties which exist and govern us, by throwing themselves into the scale most conformable to their purposes? In both cases there is an effective despotism. But the last is the more galling, as we carry the chain in the name and gait of freemen. I have thus shown, and whether fairly, I am willing to be judged by the sound discretion of the American people, that the power, proposed to be usurped, in this bill, results neither from the general nature, nor the particular provisions, of the Federal Constitution; and that it is a palpable violation of it in a fundamental point; whence flow all the consequences I have intimated. The present President of the United States, when a member of the Virginia Convention for adopting the constitution, expressly declares that the treaty-making power has limitations; and he states this as one, "that it cannot alienate any essential right." Now, is not here an essential right to be alienated? The right to that proportion of political power which the constitution has secured to every State, modified only by such internal increase of States as the existing limits of the Territories at the time of the adoption of the constitution permitted. The debates of that period chiefly turned upon the competency of this power to bargain away any of the old States. It was agreed, at that time, that by this power old States within the ancient limits could not be sold from us. And I maintain that, by it, new States without the ancient limits cannot be saddled upon us. It was agreed, at that time, that the treaty-making power "could not cut off a limb." And I maintain, that neither has it the competency to clap a hump upon our shoulders. The fair proportions devised by the constitution are in both cases marred, and the fate and felicity of the political being, in material particulars, related to the essence of his constitution, affected. It was never pretended, by the most enthusiastic advocates for the extent of the treaty-making power, that it exceeded that of the King of Great Britain. Yet, I ask, suppose that monarch should make a treaty, stipulating that Hanover or Hindostan should have a right of representation on the floor of Parliament, would such a treaty be binding? No, sir; not, as I believe, if a House of Commons and of Lords could be found venal enough to agree to it. But although in that country the three branches of its legislature are called omnipotent, and the people might not deem themselves justified in resistance, yet here there is no apology of this kind; the limits of our power are distinctly marked; and when the three branches of this Government usurp upon this constitution in particulars vital to the liberties of this people, the deed is at their peril. I have done with the constitutional argument. Whether I have been able to convince any member of this House, I am ignorant--I had almost said indifferent. But this I will not say, because I am, indeed, deeply anxious to prevent the passage of this bill. Of this I am certain, however, that when the dissension of this day is passed away, when party spirit shall no longer prevent the people of the United States from looking at the principle assumed in it, independent of gross and deceptive attachments and antipathies, that the ground here defended will be acknowledged as a high constitutional bulwark, and that the principles here advanced will be appreciated. I will add one word, touching the situation of New Orleans. The provision of the treaty of 1803, which stipulates that it shall be "admitted as soon as possible," does not therefore imply a violation of the constitution. There are ways in which this may constitutionally be effected--by an amendment of the constitution, or by reference to conventions of the people in the States. And I do suppose, that, in relation to the objects of the present bill, (with the people of New Orleans,) no great difficulty would arise. Considered as an important accommodation to the Western States, there would be no violent objection to the measure. But this would not answer all the projects to which the principle of this bill, when once admitted, leads, and is intended to be applied. The whole extent of Louisiana is to be cut up into independent States, to counterbalance and to paralyze whatever there is of influence in other quarters of the Union. Such a power, I am well aware that the people of the States would never grant you. And therefore, if you get it, the only way is by the mode adopted in this bill--by usurpation. The objection here urged is not a new one. I refer with great delicacy to the course pursued by any member of the other branch of the Legislature; yet I have it from such authority that I have an entire belief of the fact, that our present Minister in Russia, then a member of that body, when the Louisiana treaty was under the consideration of the Senate, although he was in favor of the treaty, yet expressed great doubts on the ground of constitutionality, in relation to our control over the destinies of that people, and the manner and the principles on which they could be admitted into the Union. And it does appear that he made two several motions in that body, having for their object, as avowed, and as gathered from their nature, an alteration in the constitution, to enable us to comply with the stipulations of that convention. I will add only a few words in relation to the moral and political consequences of usurping this power. I have said, that it would be a virtual dissolution of the Union; and gentlemen express great sensibility at the expression. But the true source of terror is not the declaration I have made, but the deed you propose. Is there a moral principle of public law better settled, or more conformable to the plainest suggestions of reason, than that the violation of a contract by one of the parties may be considered as exempting the other from its obligations? Suppose, in private life, thirteen form a partnership, and ten of them undertake to admit a new partner without the concurrence of the other three, would it not be at their option to abandon the partnership, after so palpable an infringement of their rights? How much more, in the political partnership, where the admission of new associates, without previous authority, is so pregnant with obvious dangers and evils! Again: it is settled as a principle of morality, among writers on public law, that no person can be obliged, beyond his intent at the time of the contract. Now, who believes, who dare assert, that it was the intention of the people, when they adopted this constitution, to assign, eventually, to New Orleans and Louisiana, a portion of their political power, and to invest all the people those extensive regions might hereafter contain with an authority over themselves and their descendants? When you throw the weight of Louisiana into the scale, you destroy the political equipoise contemplated at the time of forming the contract. Can any man venture to affirm that the people did intend such a comprehension as you now, by construction, give it; or can it be concealed that, beyond its fair and acknowledged intent, such a compact has no moral force? If gentlemen are so alarmed at the bare mention of the consequences, let them abandon a measure which sooner or later will produce them. How long before the seeds of discontent will ripen, no man can foretell; but it is the part of wisdom not to multiply or scatter them. Do you suppose the people of the Northern and Atlantic States will, or ought to, look on with patience and see Representatives and Senators from the Red river and Missouri pouring themselves upon this and the other floor, managing the concerns of a seaboard fifteen hundred miles at least from their residence, and having a preponderancy in councils, into which, constitutionally, they could never have been admitted? I have no hesitation upon this point. They neither will see it, nor ought to see it, with content. It is the part of a wise man to foresee danger, and to hide himself. This great usurpation, which creeps into this House under the plausible appearance of giving content to that important point, New Orleans, starts up a gigantic power to control the nation. Upon the actual condition of things, there is, there can be, no need of concealment. It is apparent to the blindest vision. By the course of nature, and conformable to the acknowledged principles of the constitution, the sceptre of power in this country is passing towards the Northwest. Sir, there is to this no objection. The right belongs to that quarter of the country; enjoy it; it is yours. Use the powers granted as you please; but take care, in your haste after effectual dominion, not to overload the scales by heaping it with these new acquisitions. Grasp not too eagerly at your purpose. In your speed after uncontrolled sway, trample not down this constitution. Already the old States sink in the estimation of members, when brought into comparison with these new countries. We have been told that "New Orleans was the most important point in the Union." A place out of the Union the most important place within it! We have been asked, "What are some of the small States when compared with the Mississippi Territory?" The gentleman from that Territory (Mr. POINDEXTER) spoke the other day of the Mississippi as "of a high road between" ----. Good heavens, between what, Mr. Speaker? Why, "the Eastern and Western States." So that all the Northwestern Territories, all the countries once the extreme western boundary of our Union, are hereafter to be denominated Eastern States. [Mr. POINDEXTER explained. He said that he had not said that the Mississippi was to be the boundary between the Eastern and Western States. He had merely thrown out a hint, that, in erecting new States, it might be a good high-road between the States on its waters. His idea had not extended beyond the new States, on the waters of the Mississippi.] I make no great point of this matter. The gentleman will find, in the National Intelligencer, the terms to which I refer. There will be seen, I presume, what he has said, and what he has not said. The argument is not affected by the explanation. New States are intended to be formed beyond the Mississippi. There is no limit to men's imaginations, on this subject, short of California and Columbia river. When I said that the bill would justify a revolution, and would produce it, I spoke of its principle and its practical consequences. To this principle and those consequences, I would call the attention of this House and nation. If it be about to introduce a condition of things absolutely insupportable, it becomes wise and honest men to anticipate the evil, and to warn and prepare the people against the event. I have no hesitation on the subject. The extension of this principle to the States, contemplated beyond the Mississippi, cannot, will not, and ought not to be borne. And the sooner the people contemplate the unavoidable result, the better; the more likely that convulsions may be prevented; the more hope that the evils may be palliated or removed. Mr. Speaker: What is this liberty of which so much is said? Is it to walk about this earth, to breathe this air, and to partake the common blessings of God's providence? The beasts of the field and the birds of the air unite with us in such privileges as these. But man boasts a purer and more ethereal temperature. His mind grasps in its view the past and the future, as well as the present. We live not for ourselves alone. That which we call liberty, is that principle on which the essential security of our political condition depends. It results from the limitations of our political system, prescribed in the constitution. These limitations, so long as they are faithfully observed, maintain order, peace, and safety. When they are violated in essential particulars, all the concurrent spheres of authority rush against each other, and disorder, derangement, and convulsion are, sooner or later, the necessary consequences. With respect to this love of our Union, concerning which so much sensibility is expressed, I have no fear about analyzing its nature. There is in it nothing of mystery. It depends upon the qualities of that Union, and it results from its effects upon our and our country's happiness. It is valued for "that sober certainty of waking bliss" which it enables us to realize. It grows out of the affections, and has not, and cannot be made to have, any thing universal in its nature. Sir, I confess it, the first public love of my heart is the commonwealth of Massachusetts. There is my fireside; there are the tombs of my ancestors-- "Low lies that land, yet blest with fruitful stores, Strong are her sons, though rocky are her shores; And none, ah! none, so lovely to my sight, Of all the lands which heaven o'erspreads with light." The love of this Union grows out of this attachment to my native soil, and is rooted in it. I cherish it, because it affords the best external hope of her peace, her prosperity, her independence. I oppose this bill from no animosity to the people of New Orleans, but from the deep conviction that it contains a principle incompatible with the liberties and safety of my country. I have no concealment of my opinion. The bill, if it passes, is a death-blow to the constitution. It may, afterwards, linger; but lingering, its fate will, at no very distant period, be consummated. TUESDAY, January 15. _Orleans Territory._ The House resumed the consideration of the bill authorizing the people of Orleans Territory to elect a convention to form a constitution preparatory to its admission into the Union as a free and independent State--Mr. QUINCY'S motion for indefinite postponement still under consideration. Mr. WRIGHT.--Sir, this bill is not, in my judgment, a violation of the constitution, nor have I a fear that it is fraught with those direful consequences with which the gentleman from Massachusetts (Mr. QUINCY) threatens us. It will neither justify a dissolution of the Union, nor lead any citizen attached to it, even amicably, much less forcibly, to the contemplation of it, notwithstanding the predictions of that gentleman. That we are authorized to erect new States, I will prove both by theory and practice, and for that purpose I will first invite your attention to the articles of Confederation. By one section it is _expressly_ declared that Canada may be permitted to enjoy all the benefits of the Confederation on the same terms with the other States of the Union. The thirteen States under this Confederation conducted themselves safely through the war; but finding, in 1787, that their requisitions had not been duly respected, and that New York had rejected some necessary commercial regulations, whereby their fiscal affairs were deranged, Congress, by a resolution, resolved that a convention of States should be held for the express purpose of amending the articles of Confederation. Under this resolution the Convention met, and proceeded to form the present constitution. Thus it will appear that they were to form the new constitution not _ex pari materia_, but out of the very materials of the Confederation. As a conclusive evidence, you will find a number of the articles in each instrument literally or substantially the same, and thereby be justified in giving a construction of the letter of the constitution, so as to respect the spirit of the Confederation. By the third section of 4th article of the constitution, "New States may be admitted by Congress into the Union;" and by the next member of the same section, "the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States"--hence I can have no doubt that Congress have the power to admit new States into the Union, that power being expressly given. It is however contended, that that power is limited to the admission only of those States that may be established within the limits of the United States, as demarcated by the Treaty of Peace. And the preamble to the constitution is relied on to establish that doctrine. "We, the people of the United States, &c., do establish this constitution for the United States of America." If this preamble is so imperious as to limit the positive provisions of the constitution, it will certainly limit itself to the States that formed the constitution--the negative of which has been determined. To prove which, here let me call your attention to the fact, that Vermont was not a member of the Confederation, nor was she a member of the convention that formed the constitution; she therefore was not one of the United States--was foreign as to them, and as distinctly governed as any other foreign power; she in 1791 was admitted into the Union, and the laws of the United States extended to her. She was not one of the old States, and was correctly admitted under the power to admit new States. Vermont was so repulsive to a confederacy with the United States, as not to be mentioned in the articles of Confederation. Can it be for a moment doubted that Canada, expressly mentioned, might be now received as a new State, by becoming independent, or by purchase, when Vermont has been admitted, who was not mentioned in the Confederation? Can there be an opinion that the framers of the constitution intended Canada should be excluded from the benefits of the constitution, when before invited into it? When, by the express letter of the instrument, "new States may be admitted," and when Vermont, not mentioned in the Confederation, has been admitted? Such a conclusion can never be the rational result of such premises. But it is objected, that, as this Territory was obtained by treaty, and after the formation of the constitution, it cannot be admitted into the Union as a State. I have shown that new States may be admitted, that Vermont has been admitted, and that Canada was expressly entitled under the Confederation, and by the terms of the constitution may be admitted as a new State. "Congress may admit new States into the Union, and make all needful rules and regulations with respect to the territory or other property of the United States." This is certainly a territory, the property of the United States, and Congress as certainly may, if needful, that is, expedient, admit it into the Union. We are told, I presume to retard this measure, that the limits are in dispute, and that, if made a State, they cannot afterwards be settled by the United States. That this is not the case, I will prove by theory and by practice. By the treaty-making power vested in the President and the Senate, they may treat on all subjects within the treaty-making power, with foreign nations; and where the limits of any foreign power adjoining the territory of the United States are not ascertained to their mutual satisfaction, they certainly may settle them by a treaty of limits. This is the practice and usage of all nations, and the United States by a treaty of limits with Great Britain, did settle the beginning of their northeastern limits, at the river St. Croix, whereby they gave up seven miles to Great Britain, which was taken from a State--hence I presume no difficulty can arise on the subject. The question was then taken on the motion for indefinite postponement, and lost: yeas 28, nays 78. The main question was then taken that the said bill do pass, and resolved in the affirmative--yeas 77, nays 36. WEDNESDAY, January 16. _Bank of the United States._ The House resolved itself into a Committee of the Whole on the bill to renew the charter of the Bank of the United States. Mr. BURWELL moved to strike out the first section. I have made this motion, sir, said Mr. B., because it allows the greatest latitude of discussion upon the important points which are preliminary to the examination of the details. It tries the principle of the bill, and may save much tedious and useless labor. Should a majority decide in favor of the Bank of the United States, as an honest man I will aid in forming a system best adapted to the state of the country, and most subservient to the purposes of such an institution. The gentleman from Connecticut (Mr. MOSELY) has done justice to my conduct, and the fairness with which the subject has been treated. I have been anxious to present the question fairly, not from any doubt or indecision as to the course I should pursue, but from its magnitude, and the sensibility it has excited. It will be recollected by the committee, when the gentleman from Pennsylvania presented the memorial upon which the Secretary of the Treasury founded his report, on that, as on all subsequent occasions, my opposition was manifested; and I will add that the particular attention which my duty has compelled me to bestow on the bank, has confirmed more strongly former impressions. The remarks I shall make are intended to show that Congress possesses no power to incorporate a bank; to show its effect on the government, and to satisfy the committee that the exercise of the power, even if possessed, is inexpedient. While, sir, I feel the most ardent desire to consult the convenience of the government and promote the prosperity of the community in general, I have not lost sight of the limits within which I am restrained by the Constitution of the United States and considerations of sound policy. It is my most deliberate conviction that the constitution of the country gives no authority to Congress to incorporate a bank and endow the stockholders with chartered immunities; and even if its dissolution should produce ruin to the merchants, and, what is of equal importance, embarrassment to the government, they would not be paramount to the sacred obligation of supporting the constitution; though I am persuaded the dreadful evils which have been predicted from the annihilation of the bank will soon vanish, and that no material shock will be produced by that cause. The construction which the constitution has received by the various persons who have at different times administered it, has been rigid or liberal according to the confidence in the General or State Governments. The unqualified extent given to its general powers, and the inclusion of incidental powers, as flowing from and belonging to particular enumerated grants, have constituted the essential points of difference among those who have divided upon the principles of the constitution. This has been the case not only in the exercise of authority where the right was questionable, but in cases where the right was undeniable, tending by its operation to increase the weight of the General Government. In giving to the constitution that construction which sound policy requires, and a just regard to the harmony of the States and the perpetuation of their Union dictates, I cannot find any part of it authorizing the exercise of a power which, from its nature, is obnoxious, its tendency alarming, and its influence in the hands of those who manage its concerns irresistible. The power to establish a bank cannot be deduced from the general phrases "to provide for the common defence and general welfare," because they merely announce the object for which the General Government was instituted. The only means by which this object is to be attained are specifically enumerated in the constitution, and if they are not ample, it is a defect which Congress are not competent to supply. I think this inference the stronger, inasmuch as those means were granted to us by those who had acted under the confederation and experienced its defects, and knew precisely to what extent power was requisite to provide for the common defence and general welfare. In relation to this particular subject, the proceedings of the convention itself furnish the plainest evidence, by rejecting the proposition to vest in Congress the right to grant incorporations. I readily admit the motive of deliberative bodies cannot always be known. Various considerations might have operated. They might have supposed the power already vested. But, it is incumbent on those who can place faith in an interpretation so repugnant to the cautious and guarded phraseology of the instrument, to demonstrate it. If the right to incorporate exists, it is a general grant of power, equally applicable to all the objects of incorporation, and cannot be assumed as a means to carry into effect any particular grant of authority. To my mind, it is much more natural to suppose a power to create monopolies had been surrendered, to quiet the fears of those who saw in the constitution the germ which would sooner or later palsy the vitals of the State authority. If the general phrases are not explained in the manner just mentioned, and powers so extensive and important are derived from them, it would be ridiculous to consider the jurisdiction of Congress restricted; they would confer equal authority to establish monopolies in all the various branches of individual industry and commercial enterprise. Sir, I will conclude this part of the subject by reminding you how essential it is, when we are giving an interpretation to the constitution, to which the States are parties, to assume only what clearly belongs to us. Moderation will inspire confidence, selfishness will excite disgust and suspicion. The parts of the constitution which bear any analogy to this subject, are 1st. Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare, &c. 2d. To borrow money on the credit of the United States. 3d. To regulate commerce with foreign nations, and among the several States, and with Indian tribes. And 4th. To make all laws which shall be necessary and proper to carry the foregoing powers, and all other powers vested by the constitution in the General Government, into effect. It will not be denied that, if the establishment of a bank comes within the meaning of the power to lay and collect taxes, to pay the debts of the United States, and to regulate commerce, or is necessary and proper to carry the foregoing powers into effect, it would be a fair subject for legislation by Congress. But can any one pretend that a bank would be a mode contemplated by the constitution to lay and collect taxes on the people for the purpose of raising revenue? Would it comport with that wise principle of uniformity, and those guarded restrictions against unequal burdens on the people, which constitute the most valuable safeguard to the citizen? To understand these terms we must give them a meaning which has been affixed by their usual import. When we speak of the power to lay taxes, we understand by it a demand of money from the community, regulated by fixed and equitable principles, indiscriminate as to persons, and the species of property taxed. To suppose that every law which imposed burdens or brought money into the Treasury was constitutional, would destroy our equal system of government, and substitute a capricious despotism. It would revive the exploded doctrine of free gifts, benevolences, and that shameful train of extortions practised by the old governments of Europe. Does it fall within the power to pay the debts of the United States? This clause relates entirely to the application of the funds after they have been accumulated; it is in conformity with that article which pledges the public faith for debts which had been contracted, as well as those which might be created in pursuance of the authority to borrow money upon the faith of the United States. If the power to incorporate a bank grew out of the obligation to pay the debts of the United States, its charter should be so worded as to cease whenever they were extinguished; and it would be no longer for Congress to fix a definite period for its expiration. If the right of incorporation was ever meant to be given, it would most naturally follow from the regulation of commerce; yet, no one has contended Congress could create insurance companies within the States. Those who contend the bank is constitutional, consider it as necessary and proper in collecting the revenue. That it may be an useful instrument, I do not deny. It forms depositories convenient to the government; but, you should recollect, depositories equally safe and convenient can be procured without being purchased at the expense of exorbitant and invidious privileges to a particular class in the community. I apprehend the constitution means something extremely different when it empowers the General Government to collect taxes; it relates exclusively to the authority thus given to Congress of employing compulsory process in coercing the payment of taxes; it enables Congress to create, within the jurisdiction of the States, officers of the revenue, and, through them, to exercise over the property of the citizens a concurrent jurisdiction, from which they otherwise would be precluded, and from which they had been precluded before the adoption of the constitution; it enables them to impose penalties and forfeitures, and to inflict punishment for resistance to their authority. But, sir, admit for a moment the bank may be formed to collect the revenue, ought it not to be exclusively used for that object? Whence the power to make it an instrument of commerce? Why invest it with a capital immense in amount, and sovereign in its control over the external and internal commerce of the country? Sir, I must again call your attention to the limited nature of our Government; we must administer it as we find it, and not as we think it ought to be. Under this view of the subject, so long as I understand the right to "lay taxes" to consist in drawing supplies from the people for public purposes, and not to tax one portion of the community for the benefit of another, and "to collect them," the right to enforce payment, I cannot construe them to authorize the establishment of a bank. Sir, a bank has been improperly considered a means of executing some power exclusively given to Congress. The nature of incorporations is so clearly a distinct class of political power, that, before they can be converted into means incidental to an object without the jurisdiction of the General Government, they must be shown to be absolutely necessary. Permit me to ask, how has it been ascertained that a bank is necessary to the operations of the Government? Has the experiment been tried? Upon a question involving a breach of the constitution, it would be safer to be guided by experience than conjecture. Sir, I am well aware that I can add nothing new upon the constitutional points. The subject was more thoroughly examined in 1791, and more ably elucidated than any other since the adoption of the Government. The celebrated speech of Mr. MADISON, to which I ascribe my conviction, has been recently presented to us in the newspapers, and gentlemen must be familiar with it. I cannot give additional weight to the arguments, but I thought it proper to call the attention of the committee to that part of the subject by the remarks I have made. I said, sir, it must be shown that the bank is necessary to the operations of the Government--without its aid our fiscal concerns cannot be managed. So far from subscribing to the necessity of the bank, I believe the revenue would be equally safe in the State banks, and could be distributed with inconsiderable difficulty. The revenue received in most of the States is nearly equal to the expenditure within them, and when a deficiency occurred in any one, it could be supplied by arrangements with the different banks, by transportation, or inland bills of exchange, in the manner that the public engagements are fulfilled abroad. I will venture to assert the Secretary of the Treasury will find no difficulty in contracting with individuals and corporate institutions, upon the most ample security, to transfer the public revenue upon terms equally advantageous to the United States. Among the several States commercial intercourse is great, and daily increasing; the constant traffic which the different portions of the country maintain with one another, will give facility to the operations of the Government, and obviate the obstacles which are anticipated; the very commerce which enables the Treasury to remit with ease immense sums to every part of Europe is the result of this interchange among the States, and insures equal facility at home. Where, then, is the necessity for this bank? The accommodation of the bank to the Government in times of emergency, and the use of its resources to support public credit, have been urged as motives for its establishment; how far such considerations weaken constitutional objections, it is needless to state. If, sir, the bank becomes a source of supply to the Government to an adequate extent, it ceases to be one to the merchants. It therefore cannot answer in both capacities. The same necessity which throws the Government upon the charity of the banks renders it incapable of discharging the obligation, and while the funds of the institution are locked up in the Government, its commercial functions must cease. The relief which sudden and temporary embarrassments require, can, at all times, be administered by the State banks, and, therefore, supersedes the necessity of aid from this bank. Whenever, by disasters, the ordinary sources of supply are exhausted, or the unavoidable objects of expenditure exceed the revenue, a more copious and permanent aliment will be found in the wealth and capital of the citizens than by loans from banks. Instead of diverting the active and productive capital from useful channels, the sluggish and inert mass will be drawn forth in its aid, to support public credit and cherish private enterprise. But, sir, is it prudent to rely upon an institution that may refuse you assistance? What will be the influence of such an institution on the Government, and the country at large? It cannot escape your recollection that the establishment of the Bank of the United States was the origin of a system which assumed as its basis the enlargement of the national jurisdiction. Whether the principles of expediency to which it owes its birth be regarded, or the overweening influence it established over the moneyed institutions and merchants of the States, the charge, to say the least, is plausible. The close and intimate connection between the Government and bank--the dependence of the former for loans, and the latter for public deposits, have given the Executive branch its full share of influence and odium--shows incontestably it was created to augment the power of the General Government, and the Executive in particular. Yes, sir, it was the commencement of those political animosities which have poisoned the sources of social intercourse; it was the origin of that doctrine of constructive power which abrogates the constitution and nullifies the restrictions imposed upon Congress. So long as it exists, the body politic will experience the agitations and convulsive throes of well-grounded jealousy in the States. Sir, in the administration of this Government two things alone are necessary to insure its durability. You must first avoid every measure which will produce uneasiness among the States, or, second, that will extend the jurisdiction of the United States Government to subjects purely local. I do not mean that the rightful authority of Congress is to be abandoned for fear of giving offence, but, whenever called on to take a step which will produce uneasiness, you should be perfectly satisfied the letter and spirit of the constitution bear you out. Do not gentlemen perceive the tendency of this measure to involve us with the States upon delicate points? Has not the United States' Bank produced serious alarm? Will not the alarm be increased by its continuance at this time? Yes, sir, some of the States have already taxed this institution, others have waited under the expectation we shall render a collision unnecessary. Suppose the charter renewed, and the stockholders should be taxed in such a manner as to destroy, virtually, the privileges you have guarantied to them. Are you to leave them unprotected, or will you draw the sword in their behalf? While you have time, avoid a situation not less perilous than the most serious foreign war. Since the establishment of the bank, the States have created banks--their people have accumulated capital, and they will not tamely witness the perpetuation of an institution whose strength can at any moment overthrow whatever State bank they may mark for destruction. However paradoxical it may appear, I consider the General Government strengthened by narrowing its jurisdiction; it will produce disunion whenever they interfere with local concerns. The habits, local interest, and passions of this country vary, and no one is a competent judge of what will suit the feelings of the State out of which he lives. But, sir, there are general principles in which our feelings and interests are identified; there are subjects upon which we may safely act, and trust to the co-operation of every man and State in the Union. Does the bank affect the people locally? The answer is obvious: it not only undertakes to fix the amount of capital, but interferes with the rights of property most essentially--it may change the fundamental principles of State law as to the liability of property for debts, and the mode of recovering them. Let me caution you against the renewal of the charter; it is pregnant with the most baneful consequences to the tranquillity of the country. Is it not better to sacrifice this golden calf upon the altar of concord, restore confidence and harmony among individuals as well as States, and to reunite the lovers of the constitution? In the report of the Secretary of the Treasury, the convenience of obtaining loans from the bank is mentioned as an inducement to establish a National Bank. To me the abuse of this convenience is more dreaded than any other evil which will follow from the measure. Where have you seen a National Bank, connected with the Government, which has not ultimately ruined the circulating medium of the nation? It is a notorious fact that money has depreciated seriously, from the unlimited circulation of paper, and if the Government should be compelled, by necessity, to use the funds of the bank, they must permit the increased circulation of its paper, although its money capital remains stationary. In this situation the Government must tolerate an operation which will increase the evil of which we complain. The example of England is a salutary monition to us, and we ought to profit from it. In that country there was a time when the stability of the bank was a national phrase, "As good as the Bank of England." How is it now? The funds of the bank have been borrowed by the Government--its paper circulation increased, and Parliament has been compelled to make it a tender for the payment of all contracts. Who, sir, can estimate the complicated mischiefs of a depreciated paper currency, without specie for its redemption? Should we be involved in war, or our property seized abroad, nothing can present universal bankruptcy--one wide-spread ruin will pervade the continent. At this time the country is inundated with paper bottomed upon the whole floating and real property of the community: should an alarm exist, can these funds be converted into money to redeem its credit? Certainly not. Will it not be prudent to diminish the extent of this evil by putting down this bank which is the fountain from which the whole system flows? It is of little importance, as it regards the internal trade of a country, what constitutes the representation of property. Paper, iron, or any thing else, which passes current, will answer every purpose of barter and trade; but, in its commerce abroad, it is indispensable that the circulating medium should be equally valuable and readily acknowledged among all commercial nations; otherwise, all the operations of commerce, carried on with money, will be abandoned or prosecuted under disadvantages equal to the difference in the value of the currency at home and abroad. In countries actively engaged in business, this branch of trade is not only great in amount, but by far the most profitable. How unwise, therefore, not only to substitute for the precious metals paper currency, whose value is confined to the United States, but to augment the quantity until it depreciates even among ourselves. THURSDAY, January 17. _Bank of the United States._ The House resolved itself into a Committee of the Whole on the bill for renewing the charter of the Bank of the United States--the motion for striking out the first section still under consideration. Mr. FISK.--Mr. Chairman: I regret that we are called upon to vote for or against striking out the first section of this bill, at this time. I could have wished that, upon a bill of so much interest and importance, we could have proceeded to have filled the blanks, and made such amendments as would have obviated many objections which may be urged against it in its present form. I am not prepared to give my vote in favor of a renewal of the charter of the Bank of the United States, either upon the terms upon which it was originally granted, or in the manner contemplated by this bill; yet, upon conditions less objectionable, I should feel myself bound to vote in favor of a renewal. But the question presented upon this motion, is not upon what terms this charter shall be renewed, but whether it shall be renewed upon any terms, subject to any conditions Congress may impose. In this view, I consider it the most important subject upon which this Congress will be required to act. It is determining a question which is connected with our finances, with the circulating medium of the country, and with our agricultural, commercial, and manufacturing interests; and, as such, it cannot but be interesting to every class of our citizens. The interests and prosperity of the United States are not only intimately, but inseparably, connected with trade. The market of the farmer depends greatly upon the merchant and the shipper. And the price and demand of every article of produce are in a great degree regulated by the difficulties or facilities of payment. Let the difficulty of paying be increased, and the price of produce immediately falls; for the demand for exportation becomes very limited, the markets are overstocked, and prices reduced. Any sudden check to our commerce, whether produced by our own municipal regulations, or the outrages of foreign powers, checks the market and the price of produce; so that not only the merchants, but the farmers feel its effects. I scarcely need recur to the history of the times when trade was principally suspended in this country, to show how severely the suspension operated upon every class of our citizens, and in every part of the country. This period in our political annals will be long remembered. So great was the distress in some States, and agricultural States, too, that their Legislatures deemed it necessary, for the protection of the debtor from the power of his creditor, to stay the administration of justice, and prohibit by statute the issuing of an execution for the collection of any debt. This proves the connection which subsists between the two great agricultural and commercial interests of this country. Agriculture, commerce, and manufactures constitute the source of our wealth, revenue, and prosperity. To foster and cherish the principles upon which rest our existing hopes and future prospects, can never be a question of doubtful policy with a wise and patriotic legislature. We have seen that commerce is essential to our interests; but commerce will not flourish without credit. It never has prospered independent of credit. As credit is essential to trade, so is punctuality to support credit. Look at the business of any commercial people, and see how much of it is done upon credit; and see the integrity and fidelity with which punctuality is maintained in order to support their credit. For several centuries past, banks have been the successful medium through which credit has not only been preserved, but great wealth acquired. This assertion is warranted by the history of these institutions, and of the countries where they have been patronized. The first bank established in Europe, was at Genoa, in 1407--four hundred and four years ago; this was soon followed by one at Venice. The Bank of Amsterdam was established in 1609, and shortly after those of Hamburg and Rotterdam; and the Bank of England in 1694; the Royal Bank at Paris in 1718; the Bank of North America in 1784--a memorable period in our history--and the Bank of the United States in 1791. All these different institutions show, that enlightened legislators have entertained but one opinion upon this subject both in Europe and America for the last four hundred years. They have seen and acknowledged their utility. Banks have long since been considered not only essentially useful in the transaction of commercial concerns, but as highly necessary to aid the fiscal operations of Government. And a more unanswerable argument cannot be urged in favor of their general utility than their uniform success; to this may be added the prosperity of the people and the countries where banks have been supported. Their immediate advantages are, a convenient circulating medium; the safe depository they afford for cash and funds. And they serve to keep the standard of money steady and correct; to insure punctuality; to preserve credit; to inspire confidence, and to promote a spirit of industry and enterprise. They are not, as many have supposed, in their nature hostile to Government and dangerous to liberty. They rather form a barrier to tyranny and oppression. Their principal business is to lend money at the common rate of interest, and thus prevent usury. The owners of banks are generally rich men, who have not only their personal liberty, but a large property to risk, by sedition, treason, and rebellion. It is their interest to resist oppression. We need scarcely point to the Continent of Europe for proof of the fact, when we assert, that trade and banks cannot flourish where despotism prevails. Despotic power generally ruins trade and banks, but no instance occurs in history where banks, not under the control of Government, have ruined a State. A bank owned by Government, and under its command, would be an engine dangerous to the people. But when owned by individuals, neither the people nor the Government have any thing to fear from it. It is then dependent on both for its business, prosperity, and usefulness. With the evidence which both history and experience offer to our reflection, we cannot doubt the utility of banks, nor deny but that they have been beneficial to us. And we are justified in the conclusion, that, under proper regulations, they may subserve the best interests of the people of the United States. They are now in successful operation in almost every State in the Union, and that they have been useful, the present prosperous state of the country abundantly proves. We enjoy as perfect security for life, liberty, and property, as any people under any Government ever did. These are the great objects of a good Government. And we may triumphantly ask, where is the nation or people that enjoy these with more freedom and safety than the American people? A parallel for our liberty and prosperity, for the last twenty years, is not to be found in the history of man. Our wealth, population, and resources, have increased beyond what any one would have calculated or imagined, and beyond what strangers and foreigners now believe. Industry, wealth, and contentment, pervade every quarter of our country, and poverty and oppression are unknown to our citizens. In 1791, the year this bank was incorporated, our exports amounted to about eighteen millions of dollars; and in 1804, they had increased to about seventy-six millions, gaining in thirteen years fifty-eight millions; and our tonnage in about the same proportion. Much of this prosperity is to be attributed to the active capital which has excited industry, and a spirit of enterprise among us, and the activity of this capital has been in a great degree created and promoted by the Bank of the United States. Its operations have been extensive in all our trading towns. It has aided in loans and discounts, and assisted in the collection, safe-keeping, and transmission of our revenues. It has been the depository of our Treasury, and is now become incorporated with the administration of the fiscal department of our Government. The connection which it has formed with almost every branch of business in the country, is not slight and trifling, and so easily to be severed as some seem to believe. Its operations are deeply interwoven with the dealings and concerns of all the men of business in the United States. With a capital of ten millions, it has furnished accommodations of fifteen millions a year. This has been employed principally in trade; in making prompt and cash payments to our farmers for their produce. This, again, has furnished to our citizens a ready and profitable market for every article of produce. These high profits of a good market have gone into the hands of the farmer, to cultivate, improve, and enrich the country. And travel through any State in the Union, and their effects may be readily seen, affording a prospect, consoling and elevating to the philanthropist and the patriot. The land is highly cultivated, good buildings, turnpike roads, bridges, and other expensive improvement, indicate the wealth of our citizens, and the prosperity of the country. Money has been freely circulated, trade has been active, produce high, and our country has been improved by these unexampled advantages to a degree far beyond what the most sanguine calculations, twenty years ago, could have anticipated. And yet, sir, we are gravely told that this bank has nearly ruined the country; that it is threatening our best interests with destruction. As well might gentlemen tell us that total darkness prevails at noon-day, or that the sun, in his meridian splendor, affords neither light nor heat to any part of this globe. The principal portion of the trade and business of the United States has been conducted by a paper medium; metallic has scarcely been seen. The amount of this circulating medium is, say fifty millions. Now what is proposed by denying a renewal of the United States' Bank charter? That this bank shall close its concerns, and of course stop all its accommodations. This must necessarily check and change at least one-third of the circulating medium of the country. It will undeniably require $24,000,000 to be directed to one operation, and for a time to one point--for the capital is $10,000,000; this is to be collected to divide among the stockholders. There are $19,000,000 due to the bank; this must be collected. This will occasion a demand for this amount from other sources; it must be paid. And the $5,000,000 in the bank makes the sum of $24,000,000, which must be suddenly called in. The effect this will have upon the various interests in the country can neither be described nor conceived. It must inevitably give a general and heavy shock to all paper credit; this credit, so much and profitably in operation, must receive a severe, if not a mortal wound. And what substitute have we for this when it shall be destroyed? Silver and gold coin cannot be relied on. There is not from the best estimate an amount to exceed $10,000,000 specie in all our cities and trading towns, and this will be collected by this bank. The price of all stocks, and every kind of produce and species of property must suffer a great depression, for a scarcity of money enhances its value, and consequently depresses the value of every other species of property. That this sudden, if not total change in our system, must occasion great embarrassment, produce failures, disappointments, and distress, among our citizens, is certain. Put down this bank, and how then are your revenues to be collected? Through the medium of the State banks? You do what no prudent man, in his individual concerns, would think of doing. You discard a faithful, honest, responsible agent, whose integrity and fidelity you have known for twenty years, and you place your estate in the hands and at the disposal of twenty or thirty entire strangers, of whose character and responsibility you know nothing, nor have the means of acquiring any knowledge, and over whose conduct you have no control. Should an individual act thus with his property, he would be deemed to have lost all regard for it, if not considered a madman. In resorting to the State banks, we are offering the amount of our revenue as a bounty for intrigues, cabals, and factions, through the country. In almost every State there are a number of banks, and each will endeavor to get the revenue collected in that State, to keep and trade with. It must be given to one, or divided among them all. If one is selected as the favorite, all the rest become jealous, dissatisfied, and exert their capital and influence against the favorite bank and its patron, the Government. This will awaken a spirit of faction in every State, yet unknown in this country. If all are to be gratified in their request for the deposits, the Government must open separate accounts with all the different banks in the country, to the amount of fifty or sixty; and new companies will be formed, and new applicants request to divide the business, and share the profits. Indeed, there will be no end to the scenes of speculation and intrigue, which will soon appear, if this course is adopted by the Government. Mr. SEYBERT.--It may be said that this subject has been exhausted by the discussions of the ablest politicians of the country. I will premise, the remarks which I shall offer are intended solely to justify the vote which it is my intention to give on this momentous occasion. The question pending the United States' Bank has excited a peculiar interest throughout this nation, more especially in our seaports. The dissolution of this institution, which from its limitation, will expire on the fourth of March next, has been portrayed in colors of the darkest shades, and the distresses which many maintain will be consequent to that event, call seriously for a fair and deliberate investigation. I hope, sir, I shall be pardoned for imposing on the patience of the House, when it is recollected that the community which I represent have employed four-tenths of the capital stock of the United States' Bank. If evil consequences are to attend the dissolution of this establishment, or if beneficial results proceed from its continuance, in either case I must feel myself essentially interested; it is therefore my wish to be distinctly understood upon the important principles which have connection with the great question now before us. At the last session of Congress, I presented the memorial of the President, Directors, and Stockholders of the Bank of the United States; at that time I entertained no positive opinion on the subject; the discussions which took place in the committee to whom the memorial was referred, necessarily, as a duty on my part, excited that attention which the importance of the question imperiously demanded. Under circumstances of doubt, I voted in favor of reporting a resolution in support of the bank, for the purpose of giving to the establishment every chance which reason could urge; at the same time reserving to myself the right to pronounce a final decision, according as policy and expediency, but more especially as principle should dictate. I will admit, sir, that this is not the time or place to institute the general inquiry, whether banks are or are not beneficial to a nation? Because, whether the charter of the United States' Bank be renewed or not, the several States, who have the unquestioned authority to incorporate bank establishments, have already created many, which it is not in our power to control. I do not hesitate to declare, though many persons in the United States are decidedly opposed to a banking system, under every possible circumstance, I am not of this class. Experience has proved, in a manner very satisfactory to my mind, the advantages which are derived from the banks when they are impartially directed, and when the accommodation afforded by them is prudently employed; the great difficulty seems to be to confine the system within its proper limits. I understand the proposition as applicable to the agricultural, manufacturing, and commercial interests of the United States. For my proofs of this proposition, I will not rely upon the famous Bank of St. George, at Genoa, whose authority, by a gentleman from New York, (Mr. FISK,) has been considered of much weight. I will recall to the mind of my friend the remark of an intelligent traveller, who, when he visited this bank of antiquity, exclaimed: Here lies concealed the enigma, whether the bank possesses millions of millions, or whether it is indebted millions of millions! He concludes, Upon this important secret rests the safety of the State. Unhappy State, say I, whose safety depends upon a secret concealed within the vaults of a bank. Perhaps to a development of this secret may we attribute the present servile condition of the people of the once far-famed and powerful Republic of Genoa. Sir, I am decidedly opposed to a prominent, and what to me appears to be a very dangerous feature in the bill now under consideration. I allude to the eighth section, which admits of an increase of the present capital stock of the bank. Adopt this provision, you will thereby create an Herculean power, which will have at its mercy all the minor institutions of the States; thus constituted, it can oppress and destroy them, as whim or interest may dictate. The steps which have been taken preparatory to a dissolution of the present bank, it is said, occasion much embarrassment, and threaten with ruin many of our citizens; if the present capital of ten millions can thus affect society, who will pretend to accumulate present evils, or risk entailing misery on posterity, solely for the purpose of a temporary gain to the Government? In this question Pennsylvania is deeply concerned; she has several millions of dollars invested in her banks; this to her is a valuable source of revenue; upon this may she predicate much of her future prosperity; hence will she derive the funds requisite for future internal improvements; but if you fill up the blanks in this section with a considerable sum, all these prospects will be blasted forever; you will thereby destroy the tree from whose ramifications were to emanate the blessings of peace and the sinews of war. Those of her representatives who may deem it politic and constitutional to vote for a continuance of the charter of the United States' Bank, ought surely to oppose any increase of the present capital; we have been told that that which now exists has been found sufficient for all purposes, at a time when our commerce was much more extensive than we have reason to suppose will soon again be the case. The history of the banks in our country informs us, that the one usually termed the Bank of North America was the first establishment of the kind which received the sanction of the Government. This institution was incorporated by an act of Congress, in the month of May, 1781, under the authority of the "Articles of Confederation." The present Bank of the United States was incorporated by an act of Congress, on the 25th of February, 1791, during the operation of the present Constitution of the United States. Without an attempt to examine every hypothesis, which has been or which might be proposed, respecting the constitutionality of the principle, I will content myself with the statement of the case, such as it appears to my mind. The first public act which I performed as a member of the Congress of the United States, was, to swear solemnly that I would support the Constitution of the United States. It therefore is my duty to examine and consider its precepts, according to the best of my ability. The "Articles of Confederation" and the present Constitution of the United States do not differ as regards any power delegated by the States to Congress, touching charters of incorporation. I can never persuade myself that the constitution was intended other than to have a definite meaning; or that it was ever contemplated to speak an equivocal language; ambiguity arises solely from the misconceptions of its interpreters; it is very plain and of easy comprehension, especially as it relates to the present question, since it is totally silent on the right to create corporations--its wisdom is further illustrated by the special provision for the only exclusive privilege which is consistent with a free and equal government, and that is in favor of genius. The powers delegated by the States are special and defined, and, it is expressly declared by the constitution, that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This language needs no interpretation. I cannot for a moment permit myself to suppose, that the patriots who were tested during the long-continued uncertainty of the most important events of our Revolutionary period, and to whom was ultimately assigned the right and power to construct the instrument which is to guide us in the political labyrinth--that they intended this their great work should alone be explicable by that refined reasoning to which common sense is a stranger, I never can admit. Surely that which they framed for the good and security of every individual in the nation, must be expressed in a manner to be understood by ordinary men, and those whom it was intended to direct. Sir, if simplicity was not originally contemplated by the framers of the constitution, why the imposition on the people in publishing it to the world? Was it not a prodigal waste of labor and materials, to furnish every citizen of our country with a copy of that which can only be understood by professional men, or such as are eminently skilled in scholastic research? It had better remain a secret, concealed amongst the musty rolls in the archives of State, than be a puzzle for mankind. As long as this instrument is preserved pure and untarnished, it will receive a becoming respect from your fellow-citizens--it will be regarded as "the stupendous fabric of human invention." Remember, the present argument, in several important points of view, affects posterity in common with ourselves. You had better commit the unintelligible jargon to the flames, than by the agency of construction, neutralize wisdom by folly. Sir, if we have a constitution which the people cannot understand, I then say, cut the original into slips, and provide the means for a better; or, if that is not to be done, and we are to be ruled by the iron hand of power, in that case, as one of the American people, I will pray you to be graciously pleased to grant a plain bill of rights for our better government. If we look back, and attentively view the occurrences which took place, when the law incorporating the present bank of the United States was enacted, we shall find our reasoning supported and confirmed by many important circumstances; we shall then perceive, that the act of incorporation was opposed on constitutional ground, by men who were and continue to be esteemed for their talents, political skill, judicial knowledge, probity and patriotism; and it has been admitted, that the arguments formerly urged are unanswerable. That the power to create corporations was never intended to be ceded on the part of the United States, is proved beyond all manner of contradiction; for we are told by the highest authority, by one who was a member of the General Convention, that it had been proposed to cede to Congress the power to create corporations, and that the proposition was rejected, after a deliberate discussion. In my opinion this decision is in proof of the sagacity and wisdom of those who made it; it was highly justifiable to retain this power to be exercised by the States; because, corporations are generally founded on circumstances, which are entirely local--as such, they can be better understood by the Legislatures of the respective States, than by that of the General Government. The experience of every session proves that the decisions of Congress vary with the men who at different times compose that body; therefore, the act of February, 1791, can have no force in settling the principle contended for. I have heard it urged, that the States have recognized the constitutionality of the United States' Bank, by their laws. I know of no law in any of the States, which declares this charter constitutional. Were it even proved, that several of the States had published this declaration, with me it would signify nothing, unless the sanction of two thirds of the States was thus had. On a former occasion, several of the States were induced, from peculiar circumstances, to relinquish for a time their right in favor of a particular case--I allude to the first establishment of the Bank of North America. If this had been intended to decide this very important question, without any reservation of their power in other cases, they would have expressed it in the most positive and unequivocal manner. Sir, it may be asked, how did the Congress, whilst acting under the "Articles of Confederation," incorporate the Bank of North America, though their powers were no more extensive than those of the present Congress? We shall not lose by this investigation--they declared that "the exigencies of the United States rendered it indispensably necessary that such an act be immediately passed," and, at that period, the Board of War confessed they had not money sufficient to pay the expense of forwarding an express to the Commander-in-chief of the Army! Notwithstanding such urgent necessities on the part of the General Government, they were too conscious of the rights of the States to attempt a usurpation of authority, or to pretend to force this act without their sanction; accordingly, we find the resolution by which this bank was established followed by another, which recommended to the Legislature of each of the States the necessity to pass such laws as they judged requisite for giving the ordinance, by which the subscribers to the Bank of North America were incorporated, its full operation; every provision in the charter of this bank, to have full effect, was recommended to the Legislatures of the several States for their approbation. (_See Journals of Congress for 1781, vol. 7th, pp. 257 and 258._) It is a well-known and an important fact, that the subscribers to the Bank of North America did not rest satisfied of the authority of Congress to incorporate them; subsequently to the original act of incorporation, they accepted from the Legislature of Pennsylvania a charter by which their privileges were very much abridged. Some maintain, the States having made it penal to pass counterfeits of the notes of the United States' Bank, is in proof of their recognizing the constitutionality of the institution. No one will pretend that these laws were intended other than to guard the people against fraud. These statutes were enacted without any connection with or reference to the principle upon which the original act was founded. It is but too well known, notwithstanding these salutary provisions, that counterfeit bank notes of every denomination are in daily circulation. I will ask, what would be the case if such laws had not been passed by the States? Sir, if it requires all our care to prevent an inundation from such bank paper as is acknowledged to be genuine, for Heaven's sake do not risk the security of the people, by an indirect sanction of such as is known to be spurious! FRIDAY, January 18. A motion was made by Mr. FISK, that the House do now adjourn; and the question being taken thereon, it was determined in the negative--yeas 6, nays 59. _Bank of the United States._ The House again resolved itself into a Committee of the Whole on the bill to renew the charter of the Bank of the United States. Mr. BURWELL'S motion for striking out the first section being still under consideration. Mr. P. B. PORTER.--Mr. Chairman: As this bank has excited so extraordinary an interest in every part of the United States, and particularly in the State which I have the honor to represent; as I am apprehensive, from what took place yesterday, that I shall be found, on this question, in opposition to a majority of my colleagues; and, (what will always be an imperative motive with me,) as I think this bill aims a deadly blow at some of the best principles of the constitution, I feel it my duty to state to the House the grounds on which I shall be constrained to vote for striking out the section now under consideration. I acknowledge that I had not, until lately, paid any particular attention to the question of the constitutionality of this institution. I stand, therefore, in this respect, on safer ground than the respectable member from North Carolina (Mr. MACON,) for I have no reason to suspect myself of any long-rooted prejudices on the question. The Bank of the United States was established at a time when I was not in the habit of troubling myself with such questions. I had been accustomed to think of it as an institution, the constitutionality of which was conceded by common consent. But, sir, when the question was again stirred, I felt it my duty to give it a thorough investigation before I should sanction it by my vote. I have given it, if not a thorough, at least a candid and impartial examination; and the result has been, a full conviction that we have no right to incorporate a bank upon the principles of the bill on the table, or rather, upon the principles of the original charter, which this bill proposes to renew. The ground of my objection is, that it assumes the exercise of legislative powers which belong exclusively to the State Governments. I shall not touch the question of the expediency of this bank, much less the expediency of banking generally. If I were competent, which I confess I am not, to the task, I should think it a very unprofitable one, to follow the gentleman through all the mazes of the banking system--a system, sir, about the various and important operations and effects of which on civil society, aside from a few obvious truths which it furnishes, I have found that those gentlemen who have professed to understand them best, have differed most. As I propose to confine myself to the constitutional question solely, I hope I shall be allowed to take a little broader range on this point, than has been taken by the gentlemen who have preceded me. I am aware how ungracious constitutional objections to the powers of this House are with those, and there are many such, who believe that the powers of the Federal Government are, at best, too contracted; and who would be glad to see all the State rights merged and sunk into a consolidated government. Whatever may be my speculative opinions on this subject, I can never be influenced, by motives of expediency, to swerve from my allegiance to the constitution. This sentiment is indelibly fixed on my mind, and I trust it is a common one to the members of this committee. That, in adhering strictly to the obligation we have taken to support the Constitution of the United States, we not only perform a sacred duty to ourselves, but we render a better service to the real and permanent interests of our country than we could possibly render by a departure from that obligation; even though that departure were to avert so serious a calamity as a general bankruptcy--a calamity which, in order to alarm the timid, has been held out as the inevitable consequence of a refusal to renew this charter. I should be surprised at the general acquiescence which seems to have been yielded to the constitutionality of this institution, did I not believe that others had been as superficial in their examination of the subject as I had myself. When objections are made to the constitutionality of the law, the people, in the cursory views which they are accustomed to take of such objects, are apt to adopt, as the tests of its constitutionality, the powers of the State and Federal Governments collectively; and if they find nothing in the law offensive to the principles of civil liberty, nothing uncongenial with the spirit of a Republican Government, they rest satisfied, and do not trouble themselves with nice distinctions between the powers peculiar to the one or the other of these Governments. Such reasoning would, however, ill become the sagacity of this House. One of the most serious dangers with which our Government is threatened, and it is a danger growing out of the very nature and structure of the Government itself, consists in its tendency to produce collisions between State and Federal authorities. The Federal Government, as was observed by my learned colleague, (Mr. MITCHILL,) is _imperium in imperio_, a government within a government; and the misfortune is, that there exists no friendly third power to decide the controversies which may arise between these two great, independent, and, in many respects, rival authorities. The public peace must be kept, if kept at all, by the conciliatory dispositions of the parties themselves. As then we have a common interest in the preservation of both these Governments--as we are as well the subjects of the _imperio_ as of the _imperium_, we ought to act with great circumspection and delicacy in the assumption of powers which do not clearly belong to us. It is better to forego the exercise of powers to which we are entitled, if the exercise of them is not very important, rather than hazard the assumption of doubtful ones, the fatal consequences of which my honorable friend from Virginia (Mr. BURWELL) has so justly deprecated. The great line of demarcation between the powers of the State and Federal Governments is well understood. The powers of the State Governments extend to the regulation of all their internal concerns: those of the Federal Government to the management of all our external relations--external as regards the individual States, as well as the States in their collective capacity. The general ideas upon which our Republic is founded, are these: That small territories are better adapted to the successful administration of justice than large ones. In a Republic, where the people are the sovereigns and source of power, it is important that, in order to enable them to execute this power discreetly, they should possess correct information in relation to the character and conduct of their rulers, and in relation also to the character of the measures which they pursue, or ought to pursue; and this information is better attained in a small than in a large territory. The individual States have therefore reserved to themselves the exclusive right of regulating all their internal, and, as I may say, municipal concerns, in relation both to person and property. But a single State may be inadequate to its own protection against foreign violence; it may also be unable to enforce the observance of proper rules and regulations for carrying on its foreign trade and intercourse. The Confederacy of the States is therefore formed for the purpose of attaining these two objects, namely, the regulation and protection of the trade and intercourse of the States with each other and foreign nations, and their security against foreign invasion. It has some other objects in view of minor consequence, and immediately connected with these principal ones. The Constitution of the United States is the basis of this confederacy; and it is only necessary to read the constitution to perceive that it is nothing more than a delegation of specific powers for these specific purposes, and that the general sovereignty of the States over their respective territories is expressly retained by the States. But, sir, independent of these specific powers and duties of the Federal Government, it has another and distinct set of powers and duties to perform and execute. The national domain, as it has been called, embracing the lands acquired by the Revolutionary conflict; the lands since purchased of foreign nations; and the lands ceded by the several States to the General Government, belong to the United States in their federate capacity; and no individual State, as such, has any claim to or jurisdiction over them. As to these lands the powers of the United States are sovereign, independent, and complete: and the Congress of the United States is the only legitimate authority for the exercise of this sovereignty. The powers of Congress, then, in relation to these territories, include the powers of both the Federal and State governments, in relation to the States. I have adverted to this branch of the powers of the Federal Government as a means of dispelling the obscurity which has been thrown over the constitutional question, to which I shall soon come, by confounding the powers of Congress over the States, with their powers over the territories. Arguments, to which I shall have occasion to advert in the course of my observations, have been used to justify the exercise of particular powers within the limits of the States, from our acknowledged right to and practical exercise of similar powers within the Territories. In discussing constitutional questions, then, we lay down these axioms:--That in relation to the territories, the powers of Congress are supreme and exclusive; that in relation to the States, they are specifically defined and limited by the constitution--and that we have no right to exercise, within the limits of a State, any power as resulting from the general rights of sovereignty; because that sovereignty belongs to the States and to the people, and not to the Federal Government. To show that these two last positions are correct, I will read the tenth article in the amendment of the constitution: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people." As, then, the incorporation of this bank involves the exercise of legislative powers within the jurisdiction of the States, in relation to the rights of property between the citizens of those States; and as no power to incorporate a bank, _eo nomine_, is to be found in the constitution, it would seem sufficient for us to rest the argument here, by a mere denial of the power, and to call on the advocates of the bank to show its constitutionality. An attempt to prove this constitutionality has been made--not, however, sir, by arguments advanced by gentlemen on the other side of the House in their places, (for they have, so far, observed, and I understand that they will continue to observe, a profound silence on this question,) but by arguments which have been gratuitously introduced, by the agent of the bank. I allude to the pamphlet which has within a few days past been printed and distributed among the members, containing the celebrated argument of General Hamilton, "on the constitutionality of a National Bank." As that pamphlet is _de facto_, if not _de jure_, before the committee, I will, if the committee will indulge me, attempt to examine some of the principal arguments contained in it, and I will also notice some additional ones, advanced yesterday by my honorable friend and colleague on my left, (Mr. FISK.) In the course of the observations which I have to submit, I shall, without doubt, repeat arguments and remarks made by the gentlemen who have preceded me, and others which are familiar to the members of the committee. My excuse must rest in the difficulty of taking a connected view of the subject, without such repetitions. If I shall be so fortunate as to throw a single new ray of light on this important question, I shall feel amply remunerated for my trouble, and I shall think the time of the committee not altogether misspent. The first argument in this pamphlet is founded on the sovereignty of the powers of Congress. The Federal Government is said to be sovereign as to all the objects for which that Government was instituted. A sovereign power includes, by force of the term, a right to all the means applicable to the attainment of the end for which that power is given; and therefore Congress may, in virtue of their sovereign power, create incorporations for attaining the ends or objects of those powers. This argument is founded on what the logicians call _petitio principii_, or begging the question. The proposition, that the Government is sovereign, is assumed, to prove that it possesses the attributes of sovereignty: or, in other words, the fact of sovereignty is assumed, to prove that sovereignty. If the position that the powers of this Government are sovereign as to all the objects of them, be proved, I will concede the consequence, to wit: that we have a right to establish corporations to attain these objects--but I deny the fact of sovereignty. The acts of Congress, it is said, are declared by the constitution to be the supreme law of the land: and the power which can make the supreme law of the land, is necessarily a sovereign power. But I deny that this is a correct definition, or exposition of sovereignty. It is not the high nature of an act, nor the authority of the act, that stamps the character of sovereignty on him who performs it. The sheriff of a county who puts a man to death, under the sentence of the law, executes an act of as high import and authority as human power can execute; and yet the sheriff of a county is not therefore a sovereign. His authority is a mere delegated authority--his act is a mere ministerial, mechanical act. The idea of sovereignty imports the exercise of discretion--of judgment--of will. It is of the very essence of sovereign power, that you may execute that power, or not execute it--that you may execute it when you will, and how you will. A sovereign power, as to any object, includes a right to any means, and all the means applicable to the attainment of the object. But, sir, do Congress possess sovereign powers, or, what is the same thing, discretionary means, as to the attainment of the objects of this Government? No, sir. The constitution is not a general authority to Congress to attain the objects for which the Government was established; but it is an enumeration of the particular powers, or means, by which, and by which only, certain objects are to be accomplished. If the powers of Congress were sovereign, they would of necessity comprehend all the means applicable to the attainment of their objects; but inasmuch as they are specific and circumscribed, that very circumstance proves that they are not sovereign. The people of the United States are the true sovereigns of this country. From them all power emanates, and on their will all the authority of this Government depends. The powers of the Federal Government are mere delegated chartered authorities; and in the exercise of them we are tied down to the letter of the constitution. We have, to be sure, a certain latitude of discretion allowed us, within the letter and pale of the constitution; and so far we may be said to possess a sort of limited qualified sovereignty. But the constitution is the standard by which to measure the quantum and extent of our sovereignty. And our sovereignty, which is the result of the powers given in the constitution, is not the standard by which to measure the constitution. The constitution is the true bed of Procrustes--and our sovereignty, however unwillingly we may yield it, must be the victim. Another argument, which is rather an argument to the favor than to the right of this bank, is, that it is an innocent institution; that, although its erection involves the exercise of legislative powers within the States, it does not abridge or affect the rights of the citizens, as secured to them by the laws of those States. A corporation, it is said, is a fiction of the law, a mere political transformation of a number of individuals from their natural into an artificial character, for the purpose of enabling them to do business to better advantage, and on a more extended scale; but, that when this political association, this legal entity, is once formed, it becomes subject to the laws of the State in which it happens to be placed. I know, sir, that there is nothing formidable in the abstract idea of a corporation. It is a mere phantom of the imagination, invisible, intangible, and, of course, innocent. But, sir, when the legal effects of this incorporation are to invest the individuals whom it associates with privileges and immunities to which they were not before entitled; when this legal fiction is interposed to shield certain individuals from the liabilities to which they would be subject as ordinary citizens, it then becomes a matter of important and serious consequence. What are some of the legal effects of this incorporation? One of its most obvious and distinguished characteristics is, that it exempts the private property and persons of the stockholders from all liability for the payment of the debts of the company. By the laws of every State in the Union, every man is, I believe, liable for the payment of his debts, to the full amount of his private fortune; and, in case that fortune prove insufficient, his personal liberty is at the disposal of his creditor; at least to a certain extent. Is not, then, the exemption from these liabilities an important immunity? Is it not an exclusive privilege secured to the stockholders of this bank? Assuredly it is. I know it has been said that a number of individuals may, by a private association, secure to themselves all the advantages of an incorporated company; that, by forming a common fund or stock upon which to do business, and issuing notes chargeable upon that fund, they may exonerate their persons and private property from all liability for the payment of the debts contracted in that business. I am no lawyer, sir; but if the law be what it is said to be, and what I believe it to be, _summa ratio_, then I pronounce this doctrine not to be law; for nothing can be more preposterous in principle than to say, that a man may, by his own act, avoid the force of an obligation which the law has made universal and unqualified. If a man owes a debt, acknowledges he owes it, and has received a consideration for it, the law has prescribed the nature and extent of his liability to pay it; and it is not for him to say that it shall only be paid out of a certain fund, or particular part of his property, and no other. When men contract a debt jointly, the legal obligation to pay it extends as well to the persons and separate property of the individual partners, as to their joint property. Another feature of this incorporation is, that it authorizes the stockholders to take usurious interest for their money. By the provisions of the law, the bank may issue notes and make discounts to double the amount of their capital stock; and, in addition to that, to the amount of any moneys which may happen to be deposited in their vaults for safe-keeping; and this, too, independent of the debts created by these deposits. The bank, then, may, and in fact, in many instances, does draw an interest on three or four times its capital. Every State in the Union has laws regulating the rate of interest, and in most of the States this rate is fixed at six per cent. a year. By these laws it is made penal for a man to receive more than six per cent. interest for the use of any sum of money which, by a loan, he puts at hazard, and the use of which he deprives himself of. Now, sir, this bank is permitted, contrary to those laws, to draw an interest on twenty or thirty millions of dollars, when, in truth, the whole extent of its responsibility, the whole sum which it puts at hazard, and the use of which it foregoes, is only its original stock of ten millions. In answer to this, it will be said that an individual may, by issuing notes to an amount greater than his property, legally receive an interest on a capital which he does not possess. But it must be recollected, in case of the individual, that, although he may not at the particular time possess a property adequate to the payment of his debts, yet that all the property which he may subsequently acquire, will be liable for the payment of those debts; and what is more, sir, his personal liberty is always put in jeopardy. In this point of view, the liability and the hazard of the individual may fairly be said to be co-extensive with the whole amount of the capital on which he draws an interest; and which is often the case with the bank. This bank incorporation possesses other qualities at war with the laws of the several States; one of which is, that it authorizes stockholders, who may be foreigners, to hold real estate. But, sir, I will not detain the committee any longer on this part of the argument, for this institution cannot be said to be innocent, as regards the rights of the States, when its effects on the rights of property are to exonerate the stockholders from some of the most important responsibilities which the laws of the several States have provided for the payment of debts; and when it authorizes the taking of usurious interest. I lay it down, then, as a position which cannot be controverted, that the granting of this charter is not only an interference with the municipal regulations of the several States in relation to the rights of property; but that it is an infraction of the rights of individuals as secured by those regulations. But it is contended, that a right to incorporate a Bank of the United States is delegated to Congress by the constitution: and five or six different provisions of the constitution are referred to as giving this right. It is said that it is implied in the power to lay and collect taxes, in the power to borrow money, in the power to regulate trade and intercourse between the several States, in the power to provide for the general welfare, and in the power to make all needful rules and regulations respecting the territorial and other property of the United States. The very circumstance of referring this right to many different heads of authority is, in itself, conclusive evidence that it has no very direct relation to any of them. For it can scarcely be imagined, that the single act of incorporating a bank can be at the same time any thing like a direct execution of so many and such distinct and independent powers. But I will examine these provisions separately. Before I proceed, however, I will premise that all the arguments in support of the right to incorporate a bank, as deducible from the provisions of the constitution itself, are built up by the aid of the clause of the constitution, which has been sometimes called "the sweeping clause." I allude to the clause which declares that Congress shall have the right to pass all laws necessary and proper for the carrying into execution the delegated powers. All the powers in the constitution are given for certain ends or objects. But each power is not a _general_ authority to attain a particular object, and comprehending, of course, _all_ the means or powers applicable to its accomplishment; but, in most cases, it is a specific means for effecting some particular end, and all other means or powers (for means and powers are the same thing) conducive to the same end, are expressly excluded by the restrictive clauses of the constitution. The mode of reasoning adopted by General Hamilton, and the other advocates of implied powers, is this: They first search for the end or object for which a particular power is given; and this object will be an immediate or ultimate one, as may best suit the purpose of the argument. Having ascertained the end or object, they abandon the power; or, rather, they confound the _power_ and the _object_ of it together, and make the attainment of the object, and the execution of the power given to accomplish it, convertible terms. Whatever, they say, attains the object for which any power is given, is an execution of that power. But the constitution gives to Congress a right to make all laws necessary and proper for carrying into execution the delegated powers; and, therefore, as the execution of a power and the attainment of its object are synonymous terms, the constitution gives to Congress a right to make all laws necessary and proper for attaining the ends or objects for which the various powers in the constitution are given. I beg leave to read a passage from this pamphlet: "The relation between the measure and the end, between the nature of the means employed towards the execution of a power and the object, must be the criterion of constitutionality." Here then is the axiom--now for the application of it. The constitution gives to Congress the power to levy taxes, and also the power to borrow money. But the establishment of a bank is neither levying taxes nor borrowing money; nor is the law incorporating the bank a law to levy taxes, or a law to borrow money. But the immediate end or object for which these two powers were given, was, to enable the Government to raise a revenue; and a bank may promote this object. Then, sir, by a dexterous application of the argument which I have stated, the fallacy of which consists in the sudden and unobserved transitions which are made from the power to the object, and from the object back again to the power, they prove that the establishment of a bank is in execution of the powers to lay taxes and to borrow money. I will now, sir, proceed to examine the particular provisions of the constitution which have been relied on, and to place the subject in some different aspects. In the first place, then, it is contended that the right to incorporate a Bank of the United States is included in the power to lay and collect taxes. And what is the argument by which this position is maintained? Why, sir, it is said that the law, by creating bank paper and making that paper receivable in payment for taxes, increases the circulating medium in which taxes are paid, and of course must facilitate the payment of them. That whatever facilitates the payment of taxes facilitates also the collection of them; and whatever aids or facilitates the collection of taxes, is a means for their collection. And, therefore, the incorporation of a bank is in execution of the power to lay and collect taxes. No man, sir, ought to complain of the weakness of a Government, whose powers may be _reasoned up_ by logic like this. Amidst the infinite variety of relations and connections, and dependencies and analogies by which all human transactions are allied to each other, he must be a weak politician who cannot, by hooking together a chain of implication like this, justify any and every measure of political policy or economy, as a means of executing some of the powers with which this Government is intrusted. Take this latitude of implication or construction, and you want no other power but the power to lay and collect taxes. It may be tortured into a justification of every measure which ambition itself could desire. No tyrant ever made a law without assigning the public good as the motive of it. No man on this floor, however wicked his designs, would venture to propose a measure (indeed few could be proposed) in favor of which he could not adduce some plausible argument, to show that it would tend to promote the general prosperity of the country. And in showing this he would show its constitutionality; for it is demonstrable that whatever would promote the general prosperity of the country, would, and for that very reason, facilitate, in some greater or less degree, the payment of taxes; and might therefore be justified as a means for the collection of taxes. But, sir, the constitution, as I have said before, and I must repeat it again, for this is the radical source of all the error on this subject--the Constitution of the United States is not, as such reasoning supposes it to be, a mere general designation of the ends or objects for which the Federal Government was established, and leaving to Congress a discretion as to the means or powers by which those ends shall be brought about. But the constitution is a specification of the powers or means themselves by which certain objects are to be accomplished. The powers of the constitution, carried into execution according to the strict terms and import of them, are the appropriate means, and the only means within the reach of this Government, for the attainment of its ends. It is true, as the constitution declares, and it would be equally true if the constitution did not declare it, that Congress have a right to pass all laws necessary and proper for executing the delegated powers; but this gives no latitude or discretion in the selection of means or powers. A power given to Congress in its legislative capacity, without the right to pass laws to execute it, would be nugatory; would be no power at all. It would be a solecism in language to call it a power. A power to lay and collect taxes, carries with it a right to make laws for that purpose; but they must be laws to lay and collect taxes, and not laws to incorporate banks. If you undertake to justify a law under a particular power, you must show the incidentality and applicability of the law to the power itself, and not merely its relation to any supposed end which is to be accomplished by its exercise. You must show that the plain, direct, ostensible, primary object and tendency of your law is to execute the power, and not that it will tend to facilitate the execution of it. It is not less absurd than it is dangerous, first to assume some great, distinct and independent power, unknown to the constitution, and violating the rights of the States; and, then, to attempt to justify it by a reference to some remote, indirect, collateral tendency, which the exercise of it may have towards facilitating the execution of some known and acknowledged power. This word _facilitate_ has become a very fashionable word in the construction of powers; but, sir, it is a dangerous one; it means more than we are aware of. To do a thing and to facilitate the doing of it, are distinct operations; they are distinct means; they are distinct powers. The constitution has expressly given to Congress the power to do certain things; and it has as explicitly withheld from them the power to do every other thing. The power to lay and collect taxes is one thing; and the power to establish banks, involving in its exercise the regulation of the internal domestic economy of the States, is another and totally distinct thing; and the one is, therefore, not included in the other. Again, sir, it is contended that the right to incorporate a bank is implied in the power to regulate trade and intercourse between the several States. It is said to be so, inasmuch as it creates a paper currency, which furnishes a convenient and common circulating medium of trade between the several States. Money, sir, has nothing more to do with trade, than that it furnishes a medium or representative of the value of the articles employed in trade. The only office of bank bills is to represent money. Now, if it be a regulation of trade, to create the representative articles or subjects of trade _a fortiori_, will it be a regulation of trade to create the articles or subjects themselves. By this reasoning then you may justify the right of Congress to establish manufacturing and agricultural companies within the several States; because the direct object and effect of these would be, to increase manufactures and agricultural products, which are the known and common subjects of trade. You might, with more propriety say, that under the power to regulate trade between the States, we have a right to incorporate canal companies; because canals would tend directly to open, facilitate and encourage trade and intercourse between the several States; and, in my humble opinion, sir, canals would furnish a much more salutary, direct and efficacious means, for enabling the great body of the people to pay their taxes, than is furnished by banks. But, sir, these various powers have never been claimed by the Federal Government; and, much as I am known to favor that particular species of internal improvement, I would never vote to incorporate a company for the purpose of opening a canal through any State, without first obtaining the consent of that State whose territorial rights would be affected by it. There can be no question but canal companies, and agricultural companies, and manufacturing companies, and banking companies, may all tend, more or less, to facilitate the operations of trade; but they have nothing to do with the political regulations of trade; and such only come within the scope of the powers of Congress. But, it is again said, that the right to grant this charter is included in the power to borrow money. The right is attempted to be deduced by a train of reasoning similar to that employed in relation to the provisions which I have already noticed--by forming a string of implications, by which you prove that a power to act in certain cases, and in relation to certain subjects, implies the power to create those cases and subjects to act upon. The Government, it is said, may want and must have money, in any great national crisis. A National Bank with an extensive capital will furnish ample means for loans, will facilitate the exercise of the power to borrow; and, therefore, the right to establish such a bank is implied in the power to borrow. No one, but a logician, sir, would imagine that a power to lend and a power to borrow had any relation to each other, much less could he conjecture that a power to borrow, and a power to create the ability to lend, mean the same thing. A plain unsophisticated man, on reading the constitution, would say, that the power to borrow necessarily, and by force of the term, pre-supposed the existence of the ability and disposition to lend; and that it could not be exercised unless such ability and disposition should actually exist. But the favorite doctrine is, that all powers are given for particular ends, and include all the means applicable to their attainment. Here the end is to borrow money; to borrow honestly if we can, but--to borrow. The ability to lend is a necessary means or ingredient toward perfecting the execution of the power to borrow. But, sir, let me ask, whether the disposition to lend be not as necessary a means towards accomplishing a loan as the ability? It unquestionably is. And, of course, by the doctrine that the end justifies the means, you may coerce the will to lend--and this too equally, in cases where the ability is created by Congress, and where it is derived from any other quarter. A loan obtained by bringing into fair operation all the implications of this power would be borrowing in an off-handed style. Such a loan, if effected by Bonaparte, we should call robbery; but in this mild Republic, it would be nothing more than the fair exercise of an implied constitutional power. I have pursued this argument thus far, merely for the purpose of showing the absurdities into which this doctrine of implication will lead us. But suppose, sir, that the argument of the gentleman on the other side of the question be correct, to wit: that the power to borrow implies a right to furnish the ability to lend. What, I would ask, is the probable fact, as to the facilities which this bank will afford the Government in borrowing? It will be conceded that we shall have no occasion for borrowing, except in case of war; and if we have a war, the probability is, that that war will be with Great Britain--I say this, not as a party man, sir, but because the interests of that nation, from her situation, and her rival pursuits, will be much more likely to come in collision with ours, than those of any other power. Now it is a fact, in evidence before the committee, that more than one-half of the stock of this bank belongs to British subjects: and although, as foreigners, they can have no direct agency in the affairs of the bank, yet we well know that through the instrumentality of their friends and agents, of whom there are unfortunately too many in this country, they may completely control its operations. Now I would ask, whether it is probable, that the British subjects would be willing to lend us money to carry on war against their sovereign? Would they not, on the contrary, exert the influence which they are said to possess over the moneyed interest of this country, for the purpose of depressing the credit of the country; for the purpose of crippling the operations of the State banks; and for the purpose of drying up the sources from which the Government might otherwise calculate to derive supplies? But, sir, this has little to do with the question of constitutionality, to which I will again return. Another ground upon which the constitutionality of this institution has been attempted to be supported, is, that it is necessary to the regular and successful administration of the finances. There is no question, but the bank and its branches afford convenient places for the deposit and safe keeping of the public revenue. It is not to be controverted that they also furnish a safe, convenient, expeditious and cheap means for the transmission of moneys from one part of the United States to another, as they may be wanted by the Government; and if these facilities were not to be attained in any other way, I should say it would afford an argument in favor of a bank. Not a bank infringing and violating the rights of the States; but, a bank upon principles consistent with those rights. But, sir, is there not, in every State in which there is a branch of the United States' Bank, also one or more State banks, of equal respectability, and of equal security--at least to the extent of any sum for which they are willing to undertake? These State banks may be used as depositaries for the public moneys, and they will be equally safe and convenient. And if you will give to these State banks the advantages of these deposits, as you have hitherto given them to the United States' Bank, they will furnish means for the transmission of moneys from place to place, equally safe, convenient, cheap and expeditious. This object will be attained by connections which will be formed between the banks of the different States. Such connections have already in many instances been formed. But they have not been carried to the extent they otherwise would have been, on account of the United States' Bank and its branches; between which there is so intimate and so necessary a connection. But, in answer to this, it is said that if the Bank of the United States would be constitutional without the existence of the State banks, it is equally so with. That a power which is once constitutional is equally so at all times, and under all circumstances. That a right which must depend for its existence on the will of the State Legislatures, over whom we have no control, is incomplete, and indeed, as to us, is no right all. This argument is founded on the supposition that the Federal Government is a complete Government, containing in itself all the principles and powers necessary for its own operations, which supposition is wholly false. The Federal Government does not profess to be complete in itself. It is expressly predicated on the existence of the State Governments; and most of the facilities for its exercise are derived from the State governments. It cannot perform even its own peculiar powers and functions, without the aid and co-operation of the State authorities. How, let me ask you, sir, is your Government constituted? Your Senate is appointed directly by the State Legislatures. Your President and House of Representatives, indirectly, by the same authority. Suppose they should neglect or refuse to make these appointments, can you compel them to do it? No, sir. Can you punish them for not doing it? Not in the least. They may appoint or not, as they think proper; and if they should neglect or refuse to do it, your boasted complete Government would die a natural death, by its own imbecility. It is not fair, then, to say that a power is constitutional, because the Government would be incomplete without it. It is not fair to say, that what would be constitutional without the existence of the State Governments and their appendages, is equally so with. This would prove that you have a right to appoint your own President, Senate and House of Representatives. It would go to usurp all the powers of the State Governments; for the Government could not be said to be complete without possessing the powers of both Governments combined. Indeed, this Federal Government cannot be said to be complete as to a single power, without all the auxiliary powers of the State Governments; for there is not a single act which it can perform without their assistance, directly or indirectly. The very bank law now under consideration is an illustration of this--for how are the provisions of this law to be enforced; how are the debts which it authorizes to be contracted to be collected, but through the medium of the State courts? The doctrine of perfect rights, then, if it prove any thing, proves too much. If it proves that, in order to manage your revenues, you may establish banks within the States; it equally proves, that, in order to carry the provisions of your bank laws into execution, you may establish courts and offices within the States for that purpose. I think then, sir, I may fairly conclude, that so long as the State Governments furnish you with all the facilities which you can reasonably require for conducting your revenues by means of their State banks; so long it will be unnecessary--so long it will be improper--and, therefore, so long it will be unconstitutional to invade the jurisdiction of the States, to establish national banks. But, sir, I will conclude by again cautioning my Republican friends, and my worthy colleague in particular, to beware how they familiarize themselves with this doctrine of constructive power. It is a creed at war with the vital principles of political liberty. The pride and the boast of the American Governments is, that they are the governments of the laws and not of men--that they are the regular and necessary operations and results of principles and powers, established in the moments of cool and deliberate reflection, by the combined wisdom of the nation; and that they are not the effects of the momentary passion, pride, interest, whim, or caprice of a few individuals collected on this floor. Little did the framers of this constitution, when they were so nicely adjusting and balancing its various provisions--when they were so carefully erecting guards and barriers against the encroachments of power and ambition--little, I say, sir, did they imagine, that there lay concealed under the provisions of this constitution, a secret and sleeping power, which could, in a moment, prostrate all their labors with the dust. Still less, sir, did the people when they adopted this constitution, with even more caution and scruple than that with which it was formed, conjecture that they were signing the death-warrant of all their State rights. But, once adopt the doctrine that you may travel out of the letter of this constitution, and assume powers, merely on the ground that they will tend to facilitate the execution of powers which are here given; and you compass, at a single sweep, all the rights of the States; and form the basis of a consolidated Government. Let the principle of constructive or implied powers be once established, in the extent to which it must be carried in order to pass this bill, and you will have planted in the bosom of this constitution a viper which, one day or another, will sting the liberties of this country to the heart. When Mr. PORTER had concluded his speech, the question was taken on striking out the first section, and carried--59 to 46. The committee rose, and reported to the House, who adjourned without taking a question on the report. SATURDAY, January 19. Another member, to wit, from New York, BARENT GARDENIER, appeared, and took his seat. _Bank of the United States._ Mr. SAWYER called for the order of the day on the unfinished business of yesterday--the bill continuing the charter of the Bank of the United States. [The first section had been struck out in Committee of the Whole, and the bill reported to the House, and the question now was upon concurrence with that vote in committee. On that question the debate was renewed in the House, and, of necessity, the same ground gone over which had been trod in committee, and still more extensively. Finally the vote was taken, and the concurrence carried by one vote! so close was the contest in both Houses--in the Senate the question decided by the casting vote of the Vice-President--in the House, by one vote. The following were the yeas and nays:] YEAS.--Lemuel J. Alston, William Anderson, Ezekiel Bacon, David Bard, William T. Barry, Burwell Bassett, William W. Bibb, Adam Boyd, Robert Brown, William Butler, Joseph Calhoun, Langdon Cheves, Matthew Clay, James Cochran, William Crawford, Richard Cutts, John Dawson, Joseph Desha, John W. Eppes, Meshack Franklin, Barzillai Gannet, Gideon Gardner, Thomas Gholson, Peterson Goodwyn, Edwin Gray, James Holland, Richard M. Johnson, Walter Jones, Thomas Kenan, William Kennedy, John Love, Aaron Lyle, Nathaniel Macon, Alexander McKim, William McKinley, Samuel L. Mitchill, John Montgomery, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Gurdon S. Mumford, Thomas Newton, John Porter, Peter B. Porter, John Rea of Penn., John Rhea of Tennessee, Matthias Richards, Samuel Ringgold, John Roane, Ebenezer Sage, Lemuel Sawyer, Ebenezer Seaver, Adam Seybert, John Smilie, George Smith, Samuel Smith, Henry Southard, George M. Troup, Charles Turner, jr., Archibald Van Horne, Robert Weakley, Robert Whitehill, Robert Witherspoon, Richard Wynn, and Robert Wright. NAYS.--Joseph Allen, Willis Alston, jun., Abijah Bigelow, Daniel Blaisdell, James Breckenridge, John Campbell, John C. Chamberlain, Wm. Chamberlin, Epaphroditus Champion, Martin Chittenden, John Davenport, junior, William Ely, James Emott, William Findlay, Jonathan Fisk, Barent Gardenier, David S. Garland, Charles Goldsborough, Thomas R. Gold, William Hale, Nathaniel A. Haven, Daniel Heister, William Helms, Jonathan H. Hubbard, Jacob Hufty, Ebenezer Huntington, Richard Jackson, jun., Robert Jenkins, Philip B. Key, Herman Knickerbacker, Joseph Lewis, jun., Robert Le Roy Livingston, Vincent Matthews Archibald McBryde, Samuel McKee, Pleasant M. Miller, William Milnor, Jonathan O. Mosely, Thomas Newbold, John Nicholson, Joseph Pearson, Benjamin Pickman, junior, Timothy Pitkin, jr., Elisha R. Potter, Josiah Quincy, John Randolph, Thomas Sammons, John A. Scudder, Samuel Shaw, Daniel Sheffey, Dennis Smelt, John Smith, Richard Stanford, John Stanley, James Stephenson, Lewis B. Sturges, Jacob Swoope, Samuel Taggart, Benjamin Tallmadge, John Thompson, Nicholas Van Dyke, Killian K. Van Rensselaer, Laban Wheaton, and James Wilson.[11] And then the House adjourned until to-morrow morning eleven o'clock. SATURDAY, January 26. Another member, to wit, from Massachusetts, EDWARD ST. LOE LIVERMORE, appeared, and took his seat. TUESDAY, January 29. _Removal of Federal Judges on address of Congress._ AMENDMENT TO THE CONSTITUTION. Mr. WRIGHT.--Believing, as I do, that the Constitution of the United States is not perfect, and as provision is made in the body of the instrument for amending its imperfections in the manner therein prescribed, I feel it an imperious duty to propose an amendment to it. Here let me remark, that its adoption was opposed by the patriots of America, at the time of its ratification, because of omissions important to liberty. It had not guarded against an establishment of religion; it had not secured the right of the people to keep and bear arms; it had not guarded against soldiers being quartered in our houses in time of peace, without our consent, it had not guarded against warrants being issued without oath; it had not guarded against a man's being put to answer without previous indictment; it had not secured the criminal in the trial by jury; it had not secured the trial by jury in cases of common law, and these omissions as due guards to the liberty of the citizens stand recorded in these amendments almost coeval with the instrument. The terms Federal and anti-Federal had their origin in the zeal of the respective parties at that time; the one insisting on its adoption with all these imperfections on its head, while the other insisted on these amendments; and it has always appeared to me, that on the adoption of the amendments that those who were called anti-Federals were really the Federals, the constitution being perfected by the adoption of these amendments. The foregoing amendments test its original imperfection, and I trust will lead this House to a temperate examination of the amendment I now propose to submit. The amendment, sir, is to place the judiciary of the United States on the same foundation that the British judiciary are placed by their laws; by enabling the President, on the joint address of the Senate and House of Representatives of the United States, to remove a judge. In England the judges held their commissions during the pleasure of the Crown, till the time of Charles the First, when the Parliament imposed upon the King the necessity of granting them during good behavior; till then the Crown, as the fountain of justice, held the uncontrolled direction of the commissions of the judges. At the same time, sir, the High Commission Court and Star Chamber were abolished. In the thirteenth year of William the Third, the judges, by statute, were to hold their commissions during good behavior, and by the same statute they may be removed by the joint address of both Houses of Parliament; and here let me remark, that under that tenure and responsibility, the British judiciary have attained a celebrity in history for their judicial integrity and correctness highly honorable to them, and which this amendment, I fondly hope, in time, may correctly attach to the judiciary of the United States. There are a variety of cases where the exercise of this power may be necessary for the safety of the people, which ought to be the supreme law. This power, I trust, will never be abused by the American Congress. I do not recollect a case under the British Government, where for fifty years it has been exercised, and I trust we shall not ascribe to ourselves an indisposition to the correct discharge of those functions which have been correctly exercised or rather not exercised at all for fifty years by the British Government. If in England, where the Crown is hereditary, the Lords hereditary and for life, and the Commons for seven years, this tenure and responsibility has been found necessary, I trust in this Government, where the President is for four years, the Senate for six, and the House of Representatives for two years, this judicial tenure and responsibility will be thought expedient, and that this amendment will be adopted by Congress, particularly as it is but a preliminary decision--as it must be submitted to the States, and cannot go into operation but by the consent of three-fourths of the United States. I have therefore thought fit to submit this resolution, and hope the reasons assigned will induce you to believe that I think it of such importance to the nation as to entitle it to your attention. Mr. W. then submitted the following resolutions: _Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring_, That the following section be submitted to the Legislatures of the several States, which, when ratified by the Legislatures of three-fourths of the States, shall be valid and binding as a part of the Constitution of the United States: _Resolved_, That the judges, both of the Supreme and Inferior Courts, may be removed from office on the joint address of the Senate and House of Representatives of the United States. The House refused to consider the motion--45 to 38. WEDNESDAY, January 30. _Jared Shattuck's Claim._ The House resolved itself into a committee of the Whole on the report of the Committee of Claims on the petition of Jared Shattuck--59 to 29. The report is favorable to the claimant--a bill for the relief of this person having in two former sessions passed this House, but not been acceded to in the Senate. Mr. MONTGOMERY, in a speech of some length, opposed the claim, and moved that the committee rise, with a view to printing the papers relating to the claim, which he conceived was not fully understood. This motion was debated, and lost--56 to 43. The report was also debated, and agreed to--57 to 39. The committee then rose and reported their agreement to the report. THURSDAY, January 31. Another member, to wit, from Massachusetts, ORCHARD COOK, appeared, and took his seat. _Mississippi Territory._ The House resolved itself into a Committee of the Whole, on the report of the select committee in favor of admitting the Mississippi Territory into the Union on an equal footing with the original States. A desultory debate of two or three hours took place on the resolution. Messrs. POINDEXTER, JOHNSON, GHOLSON, MCKIM, SHEFFEY, HOLLAND, and WRIGHT, spoke in favor of the resolution, and Messrs. BACON, PITKIN, QUINCY, BIGELOW, and BLAISDELL, against it. The arguments in favor of its passage were, among others, that the territory could, when possessing a population of 60,000, claim admission as a right; that it now contained probably 45,000, and would, more than probably, before a Representative could be elected under the new constitution, contain full 60,000 souls; that, after admitting Orleans to the rank of a State, with a minor population, at the present session, it would be the height of injustice to refuse the same privilege to Mississippi, which had been so much longer a part of the united territory, and against the admission of which into the Union none of the constitutional objections had weight which had been urged against the admission of Orleans. The opponents of the resolution argued that some respect was due to the feelings, however grounded, of the eastern States, in relation to the creation of new States on the western waters; that the admission of one State during a session was sufficient; if two were admitted into the Union, in the course of three months, the people of the eastern States would be justly alarmed at the diminution of their relative weight in the scale of the Union; that, since it was acknowledged the new State could not be represented before the thirteenth Congress, there could be no occasion for pressing this subject so urgently at this time. Why not, it was asked, wait for the actual census of the territory? The very solicitude which was manifested to get this subject through Congress, it was said, showed there was something wrong, and was a strong argument against the adoption of the resolution. The resolution was agreed to in Committee of the Whole--ayes 62. The committee rose, and reported their agreement to the resolution. The question was then taken to concur with the Committee of the Whole in their agreement to the said resolution, and resolved in the affirmative--yeas 68, nays 47. FRIDAY, February 1. _Commercial Intercourse._ The House went into Committee of the Whole on the following bill reported by the Committee of Foreign Relations: A bill supplementary to the act, entitled "An act concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes." _Be it enacted, &c._, That no vessel _owned wholly by a citizen or citizens of the United States, which shall have departed from a British port prior to the second day of February, one thousand eight hundred and eleven, and no merchandise owned wholly by a citizen or citizens of the United States, imported in such vessel_, shall be liable to seizure or forfeiture, on account of any infraction or presumed infraction of the provisions of the act to which this act is a supplement. Mr. EMOTT moved to amend the same by striking out the words in _italic_, and to insert in their place, "or merchandise." The bill, as amended, would read as follows: "That no vessel or merchandise shall be liable to seizure or forfeiture on account of any infraction, or presumed infraction, of the provisions of the act to which this act is a supplement." Mr. EMOTT.--Mr. Chairman: As the bill which is now on your table is calculated to relieve our merchants in part from the restrictive system which has again been attempted to be put in operation, I so far approve of it; but as it does not appear to me to go far enough, I rise for the purpose of moving an amendment, which, if adopted, will once more give us a clear deck; and while I am up, the committee will permit me, as concisely as the nature of the subject will admit, to assign the reasons which induce me to propose the amendment. By the law of the first of May last, the President was authorized, in case either of the great belligerents, before the third of March, revoked her anti-neutral edicts, to proclaim the same, and if the other did not in three months also revoke, a non-intercourse with her was to follow. On the second day of November, the President had proclaimed, as a fact, that France had made the necessary revocation; and it follows, if he was correct as to the fact, that on the second day of this month, the non-intercourse went into operation against Great Britain. As many formerly, and more latterly, have doubted as to the fact thus proclaimed, it becomes, sir, a duty which we owe to ourselves and to the people, to inquire into its existence; for if it be true that no such repeal, as was contemplated by the law, has taken place; if, indeed, the President has been deceived, or was mistaken, we cannot too soon make it known, and relieve the country from the vexation and embarrassment which must result from the present state of things. If, sir, additional motives were necessary, we may find them in the bills which have this morning been introduced into the House by the chairman of the Committee of Ways and Means, at the instance of the Secretary of the Treasury, one of which goes to lay large additional duties, and the other to authorize a loan. The reasons assigned by the Secretary for this new and heavy tax on our citizens are, that as the greater part of our duties on imports are collected on goods coming from Great Britain and her colonies, and as those duties will cease with the revival of the non-importation, it becomes necessary, in order to prevent a defalcation in the revenue, to tax the production of other countries much beyond the present rate. On this presumed defalcation, too, in some degree depends the proposition for a loan, or, if a loan be necessary, the amount of it. In this point of view, it becomes highly important to ascertain whether the non-intercourse has gone into operation; for if it has not, I trust we shall not proceed to give form and shape to the recommendation of the Secretary, that we shall not burden the country with new taxes, or subject it to large loans. In the commencement of this inquiry, Mr. Chairman, we naturally ask ourselves, what edicts are to be revoked, and how are they to be revoked? It is not material to extend this inquiry to Great Britain, as we know of no revocation on her part, and, under all circumstances, we have not, I fear, much reason to believe that there will be such revocation. But it may be well to notice here something which has the appearance of inconsistency, on the part of our Executive, towards that Government. The non-intercourse law of March, 1809, contains a provision, that, "in case either France or Great Britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States," the President shall declare the same by proclamation, and the non-intercourse was then to cease as to the nation revoking. It was under this law, and in consequence of the power so given to the President, that the celebrated, though ill-fated arrangement, was made between the Executive and the British Minister, Mr. Erskine. Now, sir, by referring to this arrangement, you will find, that on April 18, Mr. Erskine proposed to Secretary Smith the revocation of the orders in council of January and November, 1807, as a compliance on the part of Great Britain with the terms of the act of March; and our Secretary, on the same day, declaring that the withdrawing of such orders would be deemed satisfactory by the President, the arrangement was completed on the 19th, and a proclamation accordingly issued on the ground, and assuming the fact, that the British edicts had ceased to violate our neutral commerce, and again opening the intercourse between the two countries after the 10th of June. This arrangement, and the short and hasty correspondence connected with it, you will recollect, sir, were presented to Congress with the Message, at the opening of the summer session of 1809, and we then passed a law, the object of which was to ratify and to carry into effect the arrangement. Here, then, we have an explicit opinion from both the Executive and the Legislature, that the only British orders which came within the spirit and intent of the law of March, were those of January and November 1807, and that, when those orders were revoked, the edicts of Great Britain ceased to violate the commerce of the United States. I pray you now, Mr. Chairman, to turn with me to the law of May last; you will there find the precise phraseology of the act of March: "In case either Great Britain or France shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States," the President is to make known the fact by proclamation. The authority given to the President is in both cases the same, and it was to have been presumed that it would have been exercised on the same terms. But, sir, it will be found, on referring to the papers, that, under the act of May, the Executive made a further requisition. The revocation of the orders in council of January and November was not to satisfy us, but the blockade of the year preceding was to be also annulled. In the letter from Secretary Smith to our Minister at London, of the 5th of July, 1810, and which enclosed a copy of the law of May, it is said, "that in explaining the extent of the repeal which is required on the British side, Mr. Pinkney will let it be distinctly understood, that it must necessarily include an annulment of the blockade of 1806;" and our minister accordingly, in his letter to Lord Wellesley, of the 21st of September, tells him it is his duty to state "that an annulment of the blockade of May, 1806, is considered by the President to be as indispensable, in the view of the act, as the revocation of the British orders in council." Nay, so far has the President gone in this particular as to give the French Government a pledge that this will be required on the part of Great Britain. In the letter from Secretary Smith to General Armstrong, of the 5th of July, 1810, the latter is authorized, if it should be found necessary, to "let it be understood that a repeal of the illegal blockades of a date prior to the Berlin decree, namely, that of May, 1806, will be included in the condition required of Great Britain." It is not my intention at this time, to enter into a discussion on the subject of blockades, nor am I to be understood as giving countenance to the system of paper blockades, whether that system proceeds from or is attempted to be enforced by England or by France; but, sir, I have gone into this examination to show that the President has acted differently under two laws which ought to have the same practical construction, because the terms used in them were alike; that under the law of May, 1810, he added a condition to a settlement with Great Britain, which he did not require under the law of March, 1809; and why this difference? Will it be said, that when the arrangement was made with Mr. Erskine the President had no knowledge of the blockading orders of May, 1806? Not so, sir. By recurring to a report made by Mr. Madison, as Secretary of State, in December, 1808, of belligerent decrees and orders affecting neutral commerce, you will find this very blockade; and certainly what he knew as Secretary in December, he must have known as President in the April following. Shall I be told the President had discovered that the blockade had been "avowed to be comprehended in, and identified with, the orders in council?" I fear this will not be a satisfactory answer. For, in this case, if the orders in council are rescinded, the connection between them and the blockade will then stand as it was supposed by the Executive to stand when the arrangement was entered into. Persons, Mr. Chairman, more prone to jealousy than myself, and who are disposed to find fault with the late Executive projects, may perhaps point to that passage in the letter from Secretary Smith to Mr. Pinkney, of the 22d of May, 1810, in which it is said, that the President has read, with surprise and regret, the reply of Lord Wellesley to the note requiring explanations with respect to the blockade of France, which "evinces an inflexible determination to persevere in the system of blockade," as affording a reason for this added condition: they may say that it was thrust in when our Administration were satisfied that it would not be acceded to by the British, and for the purpose of preventing an accommodation with, and keeping up the irritation against, that nation. But while, for myself, I disclaim this inference, I must confess that I am at a loss to assign a sufficient motive for the difference in the two cases. As to France, sir, what were the edicts to be revoked, and how revoked? I shall have occasion, before I sit down, to notice the Berlin and Milan decrees. But were there not other decrees? We have before us the Rambouillet decree, with a date of the 23d of March, 1810, which declares that "all vessels navigating under the flag of the United States, or possessed in whole or in part by a citizen or subject of that power, which, counting from the 20th of May, 1809, have entered, or shall enter into the ports of our Empire, of our colonies, or of the countries occupied by our arms, shall be seized, and the product of the sales shall be deposited in the surplus fund." Thus embracing almost the whole of continental Europe; for, with the exception of the Russian ports on the Baltic, and two or three places in the European peninsula, every port frequented by the Americans belonged either to the Empire of France, to the colonies of that Empire, or to countries occupied by the forces of the Empire. The seizures under this decree were consequently great and distressing to our merchants. This decree purports to be an act of reprisal on this country, and for what cause? Not for any act of hostility by us; not for any seizures or confiscations of French vessels or French property under the authority, or within the limits of this Government. No, sir, a pretence of this kind appeared too absurd to be inserted even in a French decree. It is true that General Armstrong, in his letter to Secretary Smith, of the 10th of September, 1810, communicates a verbal explanation which accompanied the last letter of the French Minister: "If you confiscate French property under the law of non-intercourse, they will confiscate your property under their decree of Rambouillet." Ay, sir, and they have given a practical explanation that they would confiscate our property under the decree, although we did not confiscate their property under the non-intercourse law. Look at the decree itself, and you will find the motive, or rather the pretext for this act of reprisal. It is grounded on the passing of the act of the 1st of March, 1809, and it is grounded on that alone. Thus, because we deemed it advisable to pass a law which we supposed was a mere municipal regulation, inasmuch as it related to our own citizens, or our own territories; a law, which, according to its letter, applied equally to both belligerents, and which was not to commence its operation until the 20th of May, contained in itself a notice sufficient to prevent any injury to French subjects; for this cause, and for this alone, the Emperor adopts, as an act of reprisal, a decree which subjects to seizure and confiscation, not only American property which should reach the continent after notice of the decree, or even after its date, but property which arrived there at any time for the preceding twelve months. I will not stop to inquire what would and what ought to have been the feelings of the Administration and of the country, if such an outrage had been committed by England for such a cause. But, sir, if the French Government is allowed to have in the act of March an excuse for reprisal, we had better discontinue making laws altogether; for it is difficult to find in our statute book a law less hostile to France, or more within the right of an independent Government to enact. To see the true character of this decree, we must approach it a little nearer; and with the letters of the Duke of Cadore in my hand--those letters, sir, which have occasioned our present embarrassments--I am strangely deceived if this proceeding of the French Government does not appear to partake of the nature of an offence which, as respects individuals, is called swindling. It is a taking of property under false pretences. Allow me now, Mr. Chairman, to present you with another view of this decree. The Duke of Cadore, in his letter of the 5th of August, 1810, says: "Now Congress retrace their steps; they revoke the act of the 1st of March; the ports of America are opened to French commerce, and France is no longer interdicted to the Americans." And in his letter of the 7th of September, he uses these expressions: "His Majesty has always wished to favor the commerce of the United States. It was not without reluctance that he used reprisals towards the Americans, while he saw that Congress had ordered the confiscation of all French vessels which might arrive in the United States." "As soon as His Majesty was informed of this hostile act, he felt that the honor of France, involved in this point, could not be cleansed but by a declaration of war." Now "the American vessels which shall arrive in France, will not be subject to confiscation, because the act of Congress, which had served as a motive to our reprisals, is repealed." From this exposition of the views of the French Government, handed to us by the Minister of Exterior Relations, we perceive that he places the Rambouillet decree entirely to the account of the non-intercourse law of March; and from the course of reasoning used by him, it seems to be admitted that the decree, and the seizures under it, could not be justified, but while the obnoxious law was in force. But we here again meet with another of the mistakes of this most just Government, which is so jealous of its honor and so friendly to our commerce. The fact happens to be that the law never was repealed. By its own limitation it expired with the then session of Congress, and, of course, went out of existence on the 28th of June, 1809. Thus this poor law, which is now brought up in judgment against us, had quietly descended to the tomb of the Capulets almost a year before the Emperor and King thought it consistent with his interest, or for the honor of his empire, to commence his measures of retaliation. The limitation clause could not have escaped the attention of His Majesty when he read the law; and, I trust, we yet have pride enough to believe that he knows there is an American Congress, and notices the periods of our meeting and departure, if he is careless about our proceedings. When, therefore, Napoleon issued the plundering decree of Rambouillet, he knew that the law on which he placed his justification had long since expired. But he knew a further fact, that the law never did affect French vessels. The British navy kept them at home, and we excluded English vessels only. Such was the practical and the only practical operation of our law. I am aware that the apologists of the Emperor will point to the act of the 1st of June, 1809, as reviving or continuing certain sections of the law of March. Let me not be misunderstood, Mr. Chairman. I do not mean to insinuate that the Emperor has apologists in this House, in this ark of independence and liberty of a great people; but, in whatever place this suggestion shall be offered, it may be answered that the French Government have not noticed the last law in their decree, or in any of their official papers. And it may be further remarked that the law of June, like that of March, was limited to the end of the next session of Congress, and, of course, ceased its operation on the 1st of May, 1810. As the decree issued on the 14th of May, and the seizures under it were after that time, it would seem, to a man of common understanding, who believes the transactions between nations are, or ought to be, regulated by the rules of honest, plain dealing, that the Emperor, when he had knowledge of the fact, would have loosened his hold on our property. And yet we find that, when we approach him on this subject, he laughs us to scorn. The object which I had in view, in this examination of the Rambouillet decree, was, to mark its true character, to show that this decree emphatically outraged our neutral rights, and that, if it was submitted to by this country, our code of national rights will be found hereafter in the same books with those of the kingdoms which belong to the Confederation of the Rhine. Our merchants are induced to adventure to France by a prospect of large profits, and by promises of great security if their vessels have not been "denationalized." They take there many a valuable cargo, until the amount of property becomes an object of imperial attention, and then it is seized upon by an irresistible and unrelenting hand, without notice, and upon pretexts void of any foundation. Can a decree, or order, or edict, be pointed out in the long history of our wrongs and our sufferings, which is more strongly marked with injustice, or which more strongly "violates our neutral commerce?" I will not detain the committee by entering into a particular examination of the French decrees, which, in the commencement of the last year, authorized the seizure of such a number of American vessels at St. Sebastians, at Naples, and in the North of Europe. It would lead me too far into the views and conduct of the French Government towards this country, for the purposes of this discussion. But, sir, in this volume of documents, I see, with emotions which I am sure are in unison with those of the American people, the famous note, signed "Champagny, Duke de Cadore," of the 4th of February last, written to justify those seizures, and, as he says, "that the President may the better know the friendly intentions of France towards the United States, and her favorable dispositions to American commerce;" in which we are told that we are "without just political views, without honor, and without energy." And are we so sunk in the estimation of the mighty conqueror, that he thinks it necessary and proper to use this as his official language towards us? Surely, sir, he mistakes the character and the spirit of this people if he believes they are to be broken down, or brought into his views, by insults or threats. As our Government had, a few months before, discharged and disgraced a British Minister for a supposed insult by an insinuation, it was to have been expected that, on this occasion, equal spirit would be shown. But to such as formed corresponding expectations, what will be their feelings when they find that the only Executive notice of the note is found in the letter of Mr. Smith to General Armstrong, of the 5th of June last, in which the Secretary says, that, "as the John Adams is daily expected, and as your farther communications by her will better enable me to adapt to the actual state of our affairs with the French Government, the observations proper to be made in relation to the seizure of our property, and to the letter of the Duke of Cadore, of the 14th of February; it is, by the President, deemed expedient not to make, at this time, any such animadversions." Let us now see, Mr. Chairman, whether these decrees have been "so revoked or modified as that they ceased to violate the neutral commerce of the United States." These decrees have two distinct operations, the seizure of our property, and the subsequent sale of that property; and, without attempting to prove a proposition which appears self-evident, I shall take it for granted that, if it was an infringement of our rights to seize the property, it is equally an infringement of our rights to proceed to the confiscation and sale of such property. Nay, sir, if we allow to the French Government the plea of retaliation, the infringement of our rights will commence with the confiscation and sale of our vessels after the cause of retaliation has been removed by us, and known so to be by the Emperor. A revocation or modification of these decrees, so that they should cease to violate our fair commerce, therefore, would look as well to an indemnity for the past as a security for the future; it necessarily includes a restoration of the property already taken, as well as an engagement against future captures. This appears to have been, at one time, the opinion of our Administration; for you will find, by recurring to the letter from Secretary Smith to General Armstrong, of the 5th of June, 1810, which enclosed a copy of the law of May, the determination of our Executive is thus made known: "If, however, the arrangement contemplated by the law should be acceptable to the French Government, you will understand it to be the purpose of the President not to proceed in giving it effect, in case the late seizure of the property of the citizens of the United States has been followed by an absolute confiscation, and restoration be finally refused." And in the letter from Mr. Smith to General Armstrong, of the 5th of July, this determination is expressed with added strength: "As has been heretofore stated to you, a satisfactory provision for restoring the property lately surprised and seized by the order, or at the instance of the French Government, must be combined with a repeal of the French edicts, with a view to a non-intercourse with Great Britain; such a provision being an indispensable evidence of the just purpose of France towards the United States." Without asking for the evidence which the President had as to the repeal or modification of these decrees, I now put it to the committee whether every member of it is not perfectly convinced that if any modification, or suspension, or repeal, has taken place, it goes no farther than to restrain future seizures, leaving the property already seized to take the course of confiscation and sale? Do we not know, that, in the months of October and November, our vessels and merchandise have been brought under the hammer in pursuance of those decrees; and have we not lately seen, in our public journals, a list of some eighteen or twenty ships advertised by the French Government for sale at Bayonne, on the 5th of December? Nay, sir, the Executive was informed, before he issued his proclamation, by the letter from the Duke of Cadore to General Armstrong, of the 12th of September, 1810, that, "as to the merchandise confiscated, it having been confiscated as a measure of reprisal, the principles of reprisal must be the law in that affair." Words cannot be found which would more satisfactorily "evince an inflexible determination" to retain the property. As the principles of reprisal are to be the law, it follows that a restoration of the property depends on the discretion of the Emperor, and is not to be claimed by us as a matter of right, but of favor. And what have we to propose, according to the principles of reprisal, to obtain the restoration? Is it, that we have suffered the non-intercourse law to expire? Why, sir, this had taken place long before the letter of the Duke of Cadore. Is it a restoration of French property seized under the law of non-intercourse? This cannot take place; because, in truth, there was no such seizure. We will now examine whether there has been such a revocation of the Berlin and Milan decrees as warranted the proclamation. And here let me remark that, when the President acted under this law, he was not exercising the treaty-making power. He was the mere agent of the Legislature, and as such agent, he was confined and limited by his letter of attorney, the law. He had not, therefore, as has been asserted, a discretion, nor had he any thing to do with considerations of comity or courtesy. He was to ascertain when there was an actual and practical revocation, and then make known the fact; the consequences were left with the legislature. Indeed, sir, this power to give publicity to a fact might have been committed to one of the Secretaries, or to a clerk in the offices, and if it had, we should have smiled at the suggestion that its exercise depended on considerations of courtesy. Mr. Chairman, when the proclamation first appeared, my impression was, and such, too, I understood to be the general impression, that the President had some document unknown to the American people. The letter of the Duke of Cadore, of the 5th of August, was already before the public, but it was not credited that on this letter the proclamation had been issued. Since we have received the Message the subject is at rest. It is now known and acknowledged that the President had not, and to this moment has not, any other evidence of a revocation. Now, sir, in this letter, I see neither the form nor the substance of a revocation. What is the understanding of the French courts and officers, on this subject. I have already presented you with that part of the letter of the Duke of Cadore, of the 5th of August, in which he says, that since Congress have retraced their steps, by revoking the act of the first of March, "France is no longer interdicted to the Americans." Now, if this letter is in the form of a decree, it revokes or modifies the Rambouillet decree equally with those of Berlin and Milan, inasmuch, as long as the former continued in force, France was interdicted to the Americans. And yet we find, in a letter of the Duke of Cadore, of the 7th day of September, our Minister inquiring, "Has the decree of His Majesty of the 22d day of March last been recalled?" And General Armstrong, in his letter to Mr. Smith of the 10th of September, remarks, that this inquiry "may appear to have been useless, after the declaration, that American ships which will hereafter arrive in the ports of France shall not be subject to confiscation; but understanding from the Council of Prizes, that until some act be taken which had the effect of recalling, by name, the decree of the 23d of March, they must consider it both as existing and operative, and of course binding upon them," and he had presented the subject again. Here, then, we have the opinion of the French court, most known and most important to us, the Court of Prizes, that the letter of the Duke of Cadore is not in the form of a decree, and has not the force and effect of a decree. In addition to this, we have the act of seizure of the brig New Orleans Packet, by the director of the customs at Bordeaux, in December last, under the Berlin and Milan decrees. As the letter of the Duke of Cadore had been published in France prior to this period, no one will believe that if it was in form of an edict of the Empire, the seizure would have been made. But if the contents of this letter had been embodied in a formal act, would it have amounted to such a revocation or modification of the Berlin and Milan decrees, as that they ceased to violate our neutral commerce? I remark first, that the revocation, if it be one, was a future and not a present revocation. "The decrees of Berlin and Milan are revoked, and, after the first of November, they will cease to have effect." Now, sir, although there is an affected obscurity in this sentence, the intent is most obvious. As long as a law continues in operation, so long it must be unrepealed, and as these decrees were to have effect until the 1st of November, it follows, that on no construction can they be considered as revoked until that period. Indeed, on this point the Duke of Cadore is quite explicit in his letter to General Armstrong of the 7th of September, in which he tells him, that American vessels arriving in France before the first of November, although not liable to confiscation, "will be subjected to all the effects of the Berlin and Milan decrees." But, again: the revocation, if any, was not only future, but it was also conditional; "it being understood, that in consequence of this declaration, the English shall revoke their Orders in Council and renounce the new principles of blockade which they have wished to establish, or that the United States, conformably to the act you have just communicated, shall cause their rights to be respected by the English." A condition--a qualification--a restriction. Is it not obvious, from the very terms of the letter, that it contains a condition that the repeal is a qualified one? The words "it being understood," are not only expressive of this, but they are singularly appropriate. If, however, we were inclined to doubt, we must be satisfied by the letter of the Duke of Cadore to General Armstrong, of September 7th, in which it is said, that the Emperor "repeals his decrees of Berlin and Milan, under the conditions pointed out in my letter to you of the 5th of August." Our Ministers, General Armstrong and Mr. Pinkney, appear to have puzzled themselves much about this condition, to discover whether it was a condition precedent, or a condition subsequent. To me, sir, the idea of a condition subsequent to a repeal, is rather novel; but it may nevertheless be just. In common understanding, it is believed, that when a law is repealed it is extinct, and if it be so, then its appendage, the condition, would seem to be at an end of course. But in the view which I am about to take of this subject, it is not necessary to settle this point, as it must be conceded, that whether we call the condition a condition precedent, or a condition subsequent, the same consequence will follow: if the condition is not complied with, the decrees must be in force still. Now, sir, it appears to me that the conditions, attached to this pretended or proposed repeal, are of a nature which have not, and will not be complied with. First, sir, as to the conditions on the part of England: "The English shall revoke their Orders in Council, and renounce the new principles of blockade which they have wished to establish." With respect to the Orders in Council, I have nothing to say either as to their justice or their policy. Heaven knows they have been to us, from the moment of their inception, sore evils; the causes of great vexation, embarrassment, and losses; and I hope the period is not far distant when we shall be no longer disturbed by them. But, sir, I wish to call your particular attention to the other branch of the condition, that relating to blockades. We have been so long in the practice, and justly in the practice, of complaining of paper blockades, that at the first blush we are induced to believe the condition relates to them, and to them alone. Are these the blockades which are intended? Let the Emperor and King answer for himself. In the official note from Count Champagny to General Armstrong, of the 22d of August, 1809, we have this declaration: "A place is not truly blockaded until it is invested by land and by sea; it is blockaded to prevent it from receiving the succors which might retard its surrender. It is only then that the right of preventing neutral vessels from entering it exists." But we have it under the hand and seal of the Emperor himself, what he means by the "new principles of blockade." In the Berlin decree there is an enumeration of real or pretended interpolations, on the part of Great Britain, in the law of nations; among which we discover these: "that England does not admit the right of nations as universally acknowledged by all civilized people; that she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified ports." And it is declared that "the decree shall be considered as the fundamental law of the Empire, until England has acknowledged that the rights of war are the same on land as at sea--and until the right of blockade be restrained to fortified places actually invested by competent forces." There can be no misunderstanding on this subject. The Emperor offers to give up his Berlin and Milan decrees, if the British will renounce their new system of blockade; and in these very decrees he explains what he means by this new system; that, besides paper blockades, it is the attempt to blockade the mouths of rivers and harbors, and ports not fortified. Now, sir, I will admit, if we could prevail on Great Britain and France thus to limit the right of blockade, it would add much to our security at home; for as we have no fortified places, although we may have places with fortifications, it would follow that we should never be subject to a blockade. But is it true that according to the usages of nations this is a novel system, or one now, for the first time, put in use by the British? Or is it believed, that a nation like England, whose effective force for offence and defence is a maritime force, can or ought to subscribe to a system of blockade which confines its exercise and right to "fortified places actually invested?" What would be the effect of such a system in the present war? France has surely not to apprehend an invasion from England; and if any of the commercial places on her extensive coasts are fortified, the fortifications may be dismantled or destroyed with great safety. As soon as this is done they become "harbors and ports not fortified," and have no longer to apprehend any inconvenience from the pressure of a naval force. Is it not obvious that England will not comply with her part of the condition, and that the Emperor never expected that she would? As to the conditions on the part of this country--"The United States, conformably to the act you have just communicated, shall cause their rights to be respected." What rights, Mr. Chairman? The right of not being vexed or endangered by paper blockades? Yes, sir, and more; the right of not being interrupted in a commercial intercourse with cities situated on rivers, as Antwerp for instance; or to carry on a free trade with all the continental ports and harbors not fortified, although the whole British navy may be cruising at the mouth of the river, or in sight of the port. But we have a further declaration of neutral rights which the French Emperor says he will allow when France has a marine proportioned to the extent of her coasts and her population, and which, so long as the British shall continue to be masters of the sea, he insists we shall claim and exercise. Thus, in the note from Count Champagny to General Armstrong, of the 22d of August, 1809, "France admits the principle that the flag covers the merchandise. A merchant vessel, sailing with all the necessary papers from its Government, is a floating colony. To do violence to such a vessel by _visits_, by _searches_, and by other acts of an arbitrary authority, is to violate the territory of a colony. This is to infringe on the independence of its Government." In other words, the flag is to protect the property, and search is not to be permitted. I pray you, sir, to bear in mind, that since the formation of this Government, and under every Administration, the right of blockading, by an actual present and efficient force, ports and places not fortified; the right of search, and the principle, that enemy property is not protected by the character of the vessel, has been recognized or conceded. But how are we to cause these rights to be respected? By putting in force the non-importation law? Suppose the British should not believe themselves excessively injured by this measure; that, in fact, it operated to their advantage, and we are suffered to bring on premature decay and old age, by this political quackery. Would this satisfy the Emperor? No, sir. He would soon tell us that we had not caused our rights to be respected. It is idle to believe that he will deem the non-importation a compliance with his condition; nor, to me, does his language convey this idea. We are to oppose, or declare ourselves against the British, and in the spirit of our law and of his declaration, we are to cause our rights to be respected, not by self-destroying measures, but by actual force and open hostility, if the English nation will not, without it, subscribe to the terms which have been presented to it. Recollect the history of our embargo and former non-intercourse, the propositions made under them by our Government to the French Government, and how these propositions were received, and you will be satisfied of the nature and extent of the present condition. And now, let me ask, whether we are prepared for these conditions? Whether we believe in all the rights which the French Emperor condescends to claim for us from the British, although he will not admit them himself? And whether we are prepared to go to war for them? To me the conditions, both on the part of this country and Great Britain, appear inadmissible. At all events, I think that the President, before he acted on a proposition so loose and general, which admits of so much doubt, and can, by fair construction, be carried to such extravagant lengths, ought to have asked and received explanations and particulars. But it may be said that the letter of the Duke of Cadore, if not itself a decree, is evidence that there is a rescinding decree. To my mind, Mr. Chairman, it has internal marks to the contrary; but, without troubling the committee with any further comments on the letter, I observe, that viewing it as a mere matter of evidence, it may be fortified or explained by other evidence. I have already read to you parts of the letters from Secretary Smith to General Armstrong, of the 5th of June and the 5th of July, which declare the determination of the President not to carry the non-intercourse law into effect against England, unless France not only revoked her decrees, but restored our sequestered property. We are to presume that our Minister made known this determination to the French Court, as it was his duty so to do. Now, with this declaration before him, is it to be credited that the Emperor would revoke his decrees, when he was given to understand that the revocation would lead to no result on our part, inasmuch as he did not release our property? Is it not obvious, from this circumstance alone, that the letter is a mere proposition in answer to the one made by our Government, expressive of the views, and stating the terms on which the Emperor would revoke? Again, sir, we have the letter of Mr. Russell to Secretary Smith, of the 11th of December, 1810, informing our Government that the brig New Orleans Packet had been seized at Bordeaux a few days before, under the Berlin and Milan decrees, by the director of the customs. And we have had communicated to us, by the President, the note from Mr. Russell to the Duke of Cadore, of the 10th of December, stating this seizure to have been made under the decrees, and giving an additional fact, that the case of this vessel was the first which had occurred after the first of November, to which the decrees could be applied. As this seizure was made under the decrees, it shows the impression in France to be, that they still are existing and in force; and the evidence is the stronger, as coming from the custom-house of one of the principal trading towns, where surely the revocation must have been officially known, if it had taken place. I am aware it is said that Mr. Russell must have been misinformed as to the cause of the seizure, or that the custom-house officer mistook his duty. But as to both of these suggestions, I will only remind you of the silence of the French Government. The remonstrance of Mr. Russell was handed to the French Minister on the 10th of December, and the vessel which bore the despatches, brought Paris accounts to the 27th of December, and did not leave France until the 1st of January. If Mr. Russell had any explanation or answer from the French Government it would have been communicated to us; but he had none. The silence of the French Minister is equal to an express affirmance of the act of the custom-house officer, and is an admission that the decrees have not been revoked. SATURDAY, Feb. 9. _Commercial Intercourse._ On motion of Mr. EPPES all the orders of the day were laid on the table, and the House resolved itself into a Committee of the Whole on the bill supplementary to the act concerning commercial intercourse, &c. Mr. EMOTT'S motion being under consideration, to amend the bill so as to repeal the law of May last, &c., Mr. RHEA made a motion superseding that, viz: to strike out the whole of the bill. Mr. EPPES said, that when, on a former day, this bill, designed only for the relief of our own citizens, was under discussion, subjects not at all connected with its merits were brought into view. A gentleman from New York (Mr. EMOTT) presented to the House on that occasion his view of our foreign relations, and exercised all his ingenuity to show, as it is but too often the practice here, that the Government of the United States is exclusively wrong, and the Government of Great Britain exclusively right. It seems that in this enlightened age new duties are assigned to a Representative. Under the pressure of every injury which foreign influence can inflict, a Representative is considered as discharging his duty, if, with a fine-spun web, he can present, under a suspicious aspect, either the motives or the acts of the Executive branch of his Government. No nation, ancient or modern, unless in the last stage of corruption, can be produced where, as in the United States, periods of difficulty have been seized by the Representatives, and the weight of their talents exclusively employed for increasing the public embarrassments. The speech of the gentleman from New York, however well he may have covered it under mildness of manner and a fine-spun argument, is designed to convey to the people an idea, that the Executive has manifested partiality towards France in the late arrangement. The gentleman tells us, that while the Minister of one foreign nation was denounced here for an implied insult, the letter of the Duc de Cadore to Mr. Armstrong is passed over almost in silence; that the Secretary of State, in a letter to General Armstrong, tells him that the President thinks it unnecessary to make any remarks on it. The gentleman ought to have gone further, and stated the whole fact: that the letter of General Armstrong in answer to the Duc de Cadore was approved by the President; that, by the approval, he adopts as his own the language and sentiments of that letter. The letter of General Armstrong, by the approval of the President, has become the act of his Government. For the sentiments contained in that letter the American Government is responsible, and not General Armstrong. The firm, manly, and eloquent reply of General Armstrong to the Duc de Cadore stands precisely on the same footing as if it had been originally written under the directions of the Government. General Armstrong did not wait for instructions. He repelled, in a style comporting with the dignity of his station, the charges of the Duc de Cadore. The President, through the Secretary of State, approves his letter, adopts it as his own, and says he has nothing to add. Well, indeed, sir, might he say so, because the Minister had already said, in a style as pleasing to his country as to his Government, all that the occasion demanded. But, sir, the gentleman from New York cannot agree with his colleague in considering the President of the United States correct in issuing his proclamation. Why, sir, does the gentleman disapprove of the President's proclamation? Because, says the gentleman, the letter of the Duc de Cadore, of August, was not a repeal of the Berlin and Milan decrees. It is a mere promise that on a certain day they shall be withdrawn. When, sir, the President received the declaration of Mr. Erskine, the British Minister, that, on a particular day, the Orders in Council would be withdrawn, and issued a proclamation founded solely on that declaration, his conduct was warmly approved by men of all parties. The gentleman from New York joined in the burst of applause heaped on that Executive act. Was the letter of Mr. Erskine a repeal of the British orders? Unfortunately, we know practically it was not. Was it such a repeal as the gentleman contends ought to have taken place of the Berlin and Milan decrees, viz: under the sign manual of the Emperor? No, sir, it was just such a letter as that of the Duc de Cadore. In both cases the word of the Minister was taken as a pledge, and, on examining the two letters, so far as they may be considered a pledge, the words are nearly the same. I approved of the arrangement with Mr. Erskine; so did the gentleman from New York. I cannot see any difference in the ground taken by the Executive, except that one arrangement was with Great Britain, and the other with France. The one affected the interests of Great Britain; the other affects the interests of France. The gentleman from New York, more nice in distinctions than myself, may, perhaps, satisfy himself and the people that these two cases are marked by lines so strong as to render the conduct of the Executive in the one case an object of applause and approbation for himself and his friends, and in the other of suspicion and censure. It is not, however, my intention to pursue the gentleman through his argument. There is one part of it which I consider it a duty to pass in review, inasmuch as it is calculated to give to the public an erroneous view of the grounds taken by the Executive in the recent negotiation with Great Britain. The gentleman says, the President has not only required of Great Britain to withdraw her orders, but her blockades also. This, he says, she cannot and never will yield. This declaration is made, too, in the presence of the agent of Great Britain, who must have heard with delight the American Executive held up to suspicion, and an American Representative declare, on the floor of Congress, that demands were made on Great Britain, not sanctioned by the law of the last session. In order, sir, to support this declaration, the gentleman gives a view of the demands of the Executive on Great Britain totally incorrect and contradicted by every part of the correspondence before us. The gentleman tells you, that we have demanded of Great Britain not a withdrawal of the Orders in Council only, as contemplated by the law of last session, but of her "novel blockades." To establish the demands of the Executive, he turns, not to the correspondence, but to the Berlin or Milan decrees, and takes for our demand on Great Britain the definition of blockade given by the French Emperor. The gentleman is entirely mistaken as to the demand made of Great Britain by the Executive. The revocation of but one blockade, viz: that of May, 1806, is included in the demand of the Executive. The features of this blockade render it different from all other blockades. It is, in fact, from its character, more like the Order in Council, a permanent regulation in commerce, than a blockade. I will, however, first show from the correspondence, that the President did not, under the act of the last session, require the revocation by Great Britain of any blockade except that of May, 1806; and then, that from the peculiar features of that blockade, it must have been included in the demand made under the act of the last session. In the Message of the President, at the commencement of the session, pages 4th and 5th, we find the demand stated in the following terms: "Under the modification of the original orders of November, 1807, into the orders of April, 1809, there is, indeed, scarcely a nominal distinction between the orders and the blockades. One of these illegitimate blockades, bearing date in May, 1806, having been expressly avowed to be still unrescinded, and to be, in effect, comprehended in the Orders in Council, was too distinctly brought within the purview of the act of Congress, not to be comprehended in the explanation of the requisites to a compliance with it. The British Government was accordingly apprised by our Minister near it, that such was the light in which the subject was to be regarded." This is the language of the President. In pages 38 and 39 of the correspondence, we find the declaration of Mr. Smith, our Secretary of State, to General Armstrong, in the following words: "If the non-intercourse law, in any of its modifications, was objectionable to the Emperor of the French, that law no longer exists. "If he be ready, as has been declared in the letter of the Duke of Cadore, of February 14, to do justice to the United States, in the case of a pledge on their part not to submit to the British edicts, the opportunity for making good the declaration is now afforded. Instead of submission, the President is ready, by renewing the non-intercourse against Great Britain, to oppose to her Orders in Council a measure which is of a character that ought to satisfy any reasonable expectation. If it should be necessary for you to meet the question, whether the non-intercourse will be renewed against Great Britain, in case she should not comprehend, in the repeal of her edicts, her blockades which are not consistent with the law of nations, you may, should it be found necessary, let it be understood, that a repeal of the illegal blockades of a date prior to the Berlin decree, namely, that of May, 1806, will be included in the condition required of Great Britain; that particular blockade having been avowed to be comprehended in, and, of course, identified with the Orders in Council. With respect to blockades, of a subsequent date or not, against France, you will press the reasonableness of leaving them, together with future blockades not warranted by public law, to be proceeded against by the United States in the manner they may choose to adopt." In pages 45 and 46, we have the declaration of General Armstrong and the Duke de Cadore. Mr. E. then read the following: _From General Armstrong to Mr. Pinkney._ PARIS, _January_ 25, 1810. "SIR: A letter from Mr. Secretary Smith, of the first of December last, made it my duty to inquire of His Excellency the Duke of Cadore, what were the conditions on which his Majesty the Emperor would annul his decree, commonly called the Berlin decree; and whether, if Great Britain revoked her blockades, of a date anterior to that decree, his Majesty would consent to revoke the said decree? To these questions I have this day received the following answer, which I hasten to convey to you by a special messenger: ANSWER.--"The only conditions required for the revocation, by his Majesty the Emperor, of the decree of Berlin, will be a previous revocation, by the British Government, of her blockades of France, or a part of France, (such as that from the Elbe to Brest, &c.,) of a date anterior to that of the aforesaid decree." In page 47, we have the statement of Lord Wellesley to Mr. Pinkney: "I have the honor to acknowledge the receipt of your note of the fifteenth ultimo, wherein you request to be informed whether any, and if any, what blockades of France, instituted by Great Britain during the present war, before the first day of January, 1807, are understood by his Majesty's government to be in force? I have now the honor to acquaint you, that the coast, rivers, and ports, from the river Elbe to Brest, both inclusive, were notified to be under the restrictions of blockade, with certain modifications, on the 16th of May, 1806; and that these restrictions were afterwards comprehended in the Order of Council of the 7th of January, 1807, which order is still in force." In page 71 of the correspondence, Lord Wellesley declares, in a letter to Mr. Pinkney: "The blockade, notified by Great Britain in May, 1806, has never been formally withdrawn. It cannot, therefore, be accurately stated, that the restrictions which it established rest altogether on the Order of Council of the 7th of January, 1807; they are comprehended under the more extensive restrictions of that order. No other blockade of the ports of France was instituted by Great Britain, between the 16th of May, 1806, and the 7th of January, 1807, excepting the blockade of Venice, instituted on the 27th of July, 1806, which is still in force." From this, sir, it appears that if we are to credit the President, the Secretary of State, General Armstrong, the Duc de Cadore, and the British Minister, Lord Wellesley, the demand was confined to the blockade of 1806. Was this blockade such a violation of the neutral rights of the United States as to come decidedly within the act of the last session? Let us examine its features. This blockade is a compound one, presenting three distinct characters: 1. It obstructs a trade from one port to another of the same enemy--France for example. This trade has been denied latterly though not formerly, by Great Britain, to be free to neutrals. The United States assert the neutral right to it. 2. It obstructs a trade from the port of one enemy to the port of another--from a French to a Dutch port, for example. This is a principle not before asserted by Great Britain. The present Cabinet of Great Britain contended against its conformity to the law of nations, in opposition to their predecessors, who attempted to justify the orders of January, 1807, on that principle. 3. It obstructs the direct trade of neutrals from their own country to any part of the coast from the Elbe to Brest--a coast not less than a thousand miles. For this part of the blockade there can be no defence which is not applicable to the Orders in Council. This blockade has been continued for four or five years. No force, either adequate or inadequate, has been stationed for carrying it into effect. No new notification has been given. It is, in fact, like the Orders in Council, a permanent regulation of commerce, and has nothing of the character of a blockade, except the mere name. This blockade consists in great part of the same prohibition with the orders of January, 1807, in which it is said to be comprehended; that is, against a trade along the belligerent coast. If the orders be unlawful, therefore, the blockade must be so; and if the orders be repealed as a violation of neutral trade, in compliance with the act of Congress, the obligation to repeal the blockade, as a like violation, cannot be contested. This blockade of May, 1806, is in violation of the principles laid down by all authors on the subject of blockade. It is in violation of the principles laid down in all the treaties which attempted to define a blockade. It is in violation of the principles contended for by every Administration under the American Government, from the period of WASHINGTON to the present time. The correspondence under General WASHINGTON'S Administration, between the Secretary of State and Mr. Hammond, may be referred to for the principles asserted under that Administration. In the correspondence before us we have the principles as laid down by General Marshall and Mr. King. To these I will refer. Mr. E. then read the following extracts of letters from Mr. King and Mr. Marshall: _From Mr. King._ "Seven or eight of our vessels, laden with valuable cargoes, have been lately captured, and are still detained for adjudication; these vessels were met in their voyages to and from the Dutch ports, declared to be blockaded. Several notes have passed between Lord Grenville and me upon this subject, with the view, on my part, of establishing a more limited and reasonable interpretation of the law of blockade, than is attempted to be enforced by the English Government. Nearly one hundred Danish, Russian, and other neutral ships have, within a few months, been, in like manner, intercepted, going to and returning from the United Provinces. Many of them, as well as some of ours, arrived in the Texel in the course of the last winter; the severity of which obliged the English fleet to return to their ports, leaving a few frigates only to make short cruises off the Texel, as the season would allow. "My object has been to prove that, in this situation of the investing fleet, there can be no effective blockade, which, in my opinion, cannot be said to exist without a competent force, stationed and present at or near the entrance of the blockaded port." _Extract of a letter from Mr. King to Lord Grenville, dated_ LONDON, _May_ 23, 1799. "It seems scarcely necessary to observe, that the presence of a competent force is essential to constitute a blockade; and although it is usual for the belligerent to give notice to neutral nations when he institutes a blockade, it is not customary to give any notice of its discontinuance; and that consequently the presence of the blockading force is the natural criterion by which the neutral is enabled to ascertain the existence of the blockade, in like manner as the actual investment of a besieged place is the only evidence by which we decide whether the siege is continued or raised. A siege may be commenced, raised, recommenced and raised again, but its existence at any precise time must always depend upon the fact of the presence of an investing army. This interpretation of the law of blockade is of peculiar importance to nations situated at a great distance from each other, and between whom a considerable length of time is necessary to send and receive information." _Extract of a letter from Mr. Marshall, Secretary of State, to Mr. King, dated_ SEPTEMBER 20, 1800. "The right to confiscate vessels bound to a blockaded port, has been unreasonably extended to cases not coming within the rule, as heretofore adopted. "On this principle, it might well be questioned, whether this rule can be applied to a place not completely invested by land as well as by sea. If we examine the reasoning on which it is founded, the right to intercept and confiscate supplies, designed for a blockaded town, it will be difficult to resist the conviction that its extension to towns, invested by sea only, is an unjustifiable encroachment on the right of neutrals. But it is not of this departure from principle--a departure which has received some sanction from practice--that we mean to complain. It is, that ports, not effectually blockaded by a force capable of completely investing them, have yet been declared in a state of blockade, and vessels attempting to enter therein have been seized, and, on that account, confiscated." I have shown, from the correspondence, that the blockade of May, 1806, was the only one included in the demand of the Executive. I have shown that it is not only a violation of our neutral rights, but of the principles contended for by men of all political parties under every administration of this country; and I cannot but express my regret that the gentleman from New York should consider that, under the law of the last session, this blockade ought not to have been included in the demand of the Executive on Great Britain; that he should declare in the hearing of the British agent that demands had been made by the Executive of the United States which it would be extremely convenient for us if Great Britain would allow, but which she never could yield. The gentleman from New York has entered into an argument to show that the Berlin and Milan decrees are not repealed. We have just heard of the arrival of a French Minister; he has left France at a time to bring us certain information on this question. I have no wish to enter on this interesting question, with a bandage round my eyes. Whether France has complied with her engagements; whether France has failed in her engagements, cannot be a subject of ingenious speculation many days longer. Whatever may be the information received, I shall endeavor to adhere to what I deem the real interests of my country, and, so far as I am able, to maintain its rights against the unprincipled aggressions of every foreign nation. I will now make a few observations on the bill before the House. It contains but a single section, and exempts from forfeiture goods owned wholly by citizens of the United States, which shall have departed from a British port prior to the second day of February, 1811. When the report of the Secretary of the Treasury on the subject of modifications of the non-intercourse system was referred to the Committee on Foreign Relations, it appeared to be the unanimous sentiment of the committee, that goods which had left a British port, before the President's proclamation reached the port, ought to be exempt from the penalty of the non-intercourse law, although they might not arrive until after the 2d day of February. It was considered not inconsistent with an honest compliance with our engagements with France, and seemed to be required by that general principle of policy which is adhered to in all free countries, of allowing sufficient notice to its citizens of the commencement of penalties and forfeitures. The bill for enforcing the non-intercourse system was reported with that limited provision. After the bill was printed various statements were received by the committee, all tending to show that the orders of our merchants were sent out in September and October; that, from the change in the actual state of commercial capital in this country, goods were at present purchased with cash, and not only became the property of our citizens under the orders of merchants sent before the President's proclamation issued, but were at the risk of the purchasers; that these goods were actually paid for before the President's proclamation issued; that they could not be brought in before the second day of February. The committee having previously decided that time ought to be allowed for the President's proclamation to reach a British port, and taking into view the great injury our own citizens would sustain from a rigorous construction of the law, determined to extend the time to the ultimate period at which a citizen could put his property on board without infringing the laws of his country. It is not supposed that the construction put upon the law is strictly within its letter--it is, however, perfectly within its object. It was designed to operate on the nation refusing to modify or withdraw its edicts. To give it a construction which would either confiscate property _bona fide_ American, or lock it up in British ports, would be to destroy our own resources, and produce no effect on Great Britain. Under the sixth section of the law, it is not made unlawful to put on board British manufactures with the intent to import them, until the expiration of the three months after the proclamation; its being unlawful after that period depended on Great Britain's following the example of France and revoking her edicts; according, therefore, as the citizen was more or less sanguine, his interest might be more or less involved by supposing that Great Britain would withdraw. Orders sent previous to the issuing of the President's proclamation violated no existing law. Those sent afterwards cannot be considered as given in violation of law, inasmuch as the commencement of the law depended on a contingency, viz: the modification or withdrawal of the British orders. There is another circumstance which operated on the committee: The law of the last session was not considered by the committee as a plain rule of action which every citizen could clearly comprehend, and so arrange his affairs as to avoid its penalties. The fourth section of the act of last session revives certain sections of another act, on the happening of a certain event, three months after that event shall have been proclaimed by the President. This reviving section does not declare that on and after three months from the date of the President's proclamation there shall be non-intercourse, but that particular sections of a former non-intercourse law shall be revived. Each of the revived sections contain the words "20th of May next," and it has been made a question whether these words are revived as part of the sections. It is not supposed by me that such is a proper construction of the law. It is only stated for the purpose of showing that the law was not in that clear, decided form in which penal statutes ought to be enacted. In the construction given to the law, more regard was paid to its objects and principles than to its strict letter. And if, for the purpose of affording relief in cases peculiarly hard and operating on our own citizens exclusively, we have placed on the law a construction not warranted by its letter, I hope we shall be justified by the purity of the motives under which we have acted. Mr. EMOTT explained. Mr. STURGES said be was happy that he felt himself so situated that he could avoid that course of discussion upon the present occasion, so much reprobated by the honorable gentleman (Mr. EPPES) from Virginia. He said he should not undertake to enter into a discussion of our foreign relations, nor say much upon our restrictive system; that his friend from New York (Mr. EMOTT) had already done that fully and ably. He said he was at present inclined to support the amendment proposed by the honorable gentleman, (Mr. RHEA, of Tennessee,) and if the words should be stricken out as proposed by that gentleman, (as one good turn deserved another,) he hoped he would be disposed to support a proposition, which he (Mr. S.) would then submit to the committee. If the committee should agree to strike out, Mr. S. would then propose to insert in lieu thereof, after the words "be it enacted" the following words, (which he read to the committee,) viz: "That an act entitled an act concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes, passed May 1, 1810, be and the same is hereby repealed." Mr. S. said he was inclined to favor the amendment of the gentleman from Tennessee on another ground. He was not willing to imply by any vote of his a recognition of the efficacy of the non-intercourse law, so called, which could not, in his opinion, upon any principle, have any operative force, until the 20th of May next. He flattered himself, if gentlemen would be so good as to attend to him, that he should be able to demonstrate to their satisfaction the truth of this position; and that the chairman of the Committee of Foreign Relations, exercising his usual candor, would himself be satisfied. The law, passed March 1, 1809, contained a number of sections which went to prevent importations from Great Britain and France, and their dependencies. This law (containing a clause limiting its duration) was to expire at the end of the next session of Congress. The then next session of Congress ended the last of June, 1809. The law of March, 1809, therefore, then expired. The law of May 1st, 1810, enacted that certain sections of that of March, 1809, should be revived upon certain contingencies. Those sections, thus revived, are the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and 18th. Mr. S. then recurred to those sections, and read the third, which is as follows: [The section was here read.] Mr. S. said it was unnecessary to read the other sections to which he had referred, as the phraseology, as to the time when they were to take effect, was the same as in the section which he had read. He said it would not answer the purpose of gentlemen who held a different opinion from him, to argue in such a case as the present, from the intention of the Legislature. He said it was a principle, in construing penal statutes, to construe them strictly. But he said it was not necessary for him, in support of his position, to resort to this rule of construction. The words of these sections are explicit, and the meaning plain. They are revived in the law of May, 1810. They must be considered as revived in _todidem verbis_--as the whole of the sections are revived generally, it is not competent to say that one part of the section is revived, and not the other part. If they had been transcribed _verbatim_, and incorporated in the law of May, 1810, there could have been no question; and there can be no difference as to this point between that case, and reviving them without excepting any part. Mr. S. therefore concluded, that as the expressions in the sections referred to were, that they were to take effect the 20th of May next; and the law reviving them passed the 1st of May, 1810; that they cannot have any efficacy until the 20th of May, 1811. And he said the gentleman from Virginia, (Mr. EPPES,) in attending to this point, had implied his doubts upon it by saying, that as there might be doubts among lawyers, though among unlearned men there could be none, the Committee of Foreign Relations, in reporting the bill now under consideration, were disposed to give a liberal construction to the meaning of the Legislature. But, said Mr. S., this cannot help the matter. No new law, in the nature of an explanatory law, can give efficacy to the former one, if that law would otherwise have no force. If, then, he was correct in his ideas upon the subject, and he thought every lawyer in the House must be of his opinion, Mr. S. asked, what is the consequence? He said that, from the 2d of February, any seizures which have been or shall be made by your custom-house officers, cannot be considered as legal. Your Federal courts cannot condemn property so seized; and in case they are made, your State courts will sustain actions of trover and trespass in favor of the owners thereof against such officers. Mr. WRIGHT.--Mr. Chairman: The gentleman from New York (Mr. EMOTT) labored yesterday for three hours on his proposed amendment to the bill under consideration, and exercised all his ingenuity to seduce us into a violation of the faith of the nation, pledged in the act entitled "An act concerning the commercial intercourse between the United States and Great Britain and France and their dependencies, and for other purposes." By this act the nation pledged itself to Great Britain and to France, "that if either of them should so revoke or _modify_ their edicts that they should cease to violate the neutral commerce of the United States, that the President _should_, by proclamation, declare the same; and that, three months after the date of said proclamation, no goods, wares, or merchandise, the growth, produce, or manufacture of the other nation, her colonies or dependencies, _should_ be imported into the United States." The Government, strictly preserving her neutral character, at the same moment presented to both nations the same proposition, and by the solemnity of that act, in the face of the world, pledged the faith of the nation to the faithful performance of the condition above stated, on their part to be performed, in the event of either Great Britain or France so revoking or modifying their edicts that they should cease to violate the neutral commerce of the United States. France, on the 5th of August, 1810, did so revoke her edicts that they should cease to violate the neutral commerce of the United States, after the second day of November; and, although the fact has been established by the letter of the Duke of Cadore, of the 5th of August, to General Armstrong, our Minister at Paris, and by him communicated to the President of the United States; and, although the President did, by his proclamation, bearing date the second of November, in obedience to the said act of Congress, declare "that the edicts of France violating the neutral commerce of the United States had been so revoked or modified, that, from and after the second day of November, they would cease to violate the neutral commerce of the United States;" whereby, after the expiration of three months from the date of said proclamation, by virtue of the act aforesaid, "no goods, wares, or merchandise, the growth, produce, or manufacture of Great Britain, her colonies or dependencies, should be imported into the United States, unless she, before the expiration of that time, revoked her edicts." Yet, sir, this gentleman, to the bill on the table contemplating a faithful execution of the non-intercourse law against Great Britain, has proposed an amendment that "no vessel or merchandise shall be liable to seizure or forfeiture, on account of any infraction, or presumed infraction, of the provisions of the act to which this act is a supplement;" thereby substantially to repeal the non-intercourse act, although France has revoked her decrees, and Britain has refused to revoke her Orders in Council, and by the last information from our Minister in London, every spark of hope of their being revoked had been extinguished. That gentleman, a representative of the American people, has proposed this direct breach of public faith, and as a pretext to the unprincipled act, has had the temerity to declare "that the President had no authority to issue his proclamation; that the assurances of France to our Government were deceptive; that the Berlin and Milan decrees were not revoked; and that the non-intercourse act is not in force;" and thus has arraigned the President for issuing his proclamation. By the constitution, the Departments of the Government are distinctly marked, and the President authorized, as the legitimate organ, to discharge every function of the Executive. Besides, the non-intercourse act has expressly authorized and directed him, by proclamation, to declare the fact of the revocation or modification of the edicts which the belligerents were by that act invited to revoke. As well might that gentleman question the legitimacy of a treaty after it had been ratified and declared by proclamation, or an act of Congress after it had passed the usual forms and been duly published. Sir, this act of the President, as to every fact stated, implies absolute verity, and, like any other record, can be tried only by itself. Had the gentleman contented himself with the discharge of his legislative duties, and indulged the President in the exercise of his Executive functions, we should have been relieved from a long speech, calculated only to inculpate the President and expose the gentleman's devotion to Great Britain. How, I ask, could the President act a different part, from the evidence in the case? The Duke of Cadore, the French Minister of Foreign Relations at Paris, in writing, informed General Armstrong, the American Minister at that Court, on the fifth of August, "that he was authorized to declare to him, that the decrees of Berlin and Milan are revoked, and that after the first of November, they will cease to have effect; it being understood that, in consequence of this declaration, the English shall revoke their Orders in Council, and renounce the new principles of blockade which they have wished to establish, _or_, that the United States, _conformably_ to the act you have just communicated, shall cause their rights to be respected by the English." General Armstrong immediately communicated it to the President, who, being thus in possession of the information, was not only authorized, but bound to issue this proclamation. I would ask, if this diplomatic evidence, the established mode of communication between nations, is not to be received and respected, if national confidence is not destroyed, and an end put to all diplomatic intercourse? Was not the President, in good faith, bound to believe the fact, and, believing it, bound to act as he did? Sir, if Great Britain had made the like communication through Lord Wellesley to Mr. Pinkney, and he to the President, who had, thereupon, issued his proclamation, what would have been the conduct and language of this gentleman and those who think with him in political opinion? They would, I have no doubt, been prepared to eulogize the President, and publicly approve the act. In this assertion I am not left to conjecture, but will prove it by the most unequivocal evidence, if the gentlemen are consistent with themselves. You will recollect that, by the act of the first of March, eighteen hundred and nine, interdicting the commercial intercourse between the United States and Great Britain and France, and their colonies and dependencies, after a certain period, unless they should so revoke or modify their edicts that they should cease to violate the neutral commerce of the United States, the President in the case of either power, so revoking or modifying their edicts, was authorized by proclamation to declare the same, whereby the interdictions were, as to the power so revoking, to be suspended, and in force only against the other; and I hope you never will forget the deep game that was played by Great Britain on that occasion, and the diplomatic trick that was practised on our Administration by Mr. Erskine's memorable treaty. The President _then_ placed full faith in the act of the British Plenipotentiary, and, on the signing of that treaty which revoked the Orders in Council, immediately issued his proclamation, and thereby dissolved the commercial injunction, whereby Great Britain was supplied with the necessaries of her existence. Then the President acted promptly, as in the case of France; then he acted on the information of the British Minister as he did in the case of France on the information of the French Minister. Then the treaty revoking the Orders in Council was rejected by the British Government; but now, in the case of France, the revocation of her decrees is confirmed and carried into full effect. But the proclamation in the case of France is denounced by the gentleman from New York as neither formal, substantial, nor by authority, although by comparing it with the proclamation in the case of Great Britain, which I hold in my hand, it will be found formally and substantially a copy of it, varied only as to the Government to whose proceedings it relates. When I assure you that the President's proclamation in the case of Great Britain met with the approbation of the gentleman from New York and his political friends, you will feel surprised at their partiality; but, when you examine the resolution of the House of Representatives approbating the conduct of the President in that case, you will feel no doubt of the fact. Sir, this gentleman has told us that the non-intercourse act is not in force, and that the American people will not submit to its execution, notwithstanding the revocation of the French decrees, the continuation of the British Orders in Council, and the President's proclamation. Whence does this gentleman derive the power of declaring an act of Congress not in force, declared by the President's proclamation to be in force? Or in what section of the Union does the gentleman presume to say the American people will not submit to the law? That that gentleman's speech was intended to sow sedition among the people, and to encourage insubordination to this law, is too obvious. Sir, the decrees of France, now they are revoked, seem to be more obnoxious to that gentleman than the British Orders in Council, now in full force. He denounces the Emperor for the Rambouillet decree, issued the twenty-third of March, eighteen hundred and ten; which subjected the ships of America to condemnation entering the ports of France, which the Emperor declares was an act of retaliation; because Congress had by their act of March, eighteen hundred and nine, subjected the vessels of France to condemnation entering the ports of the United States, yet that gentleman, when speaking of the British blockading order of eighteen hundred and six, issued without even a pretext, which by proclamation without investment subjected our ships to condemnation entering the ports of France, says, "with respect to their Orders in Council I have nothing to say as to their justice or their policy." He is prepared to condemn France for her act of retaliation, but he is not prepared even to speak of Great Britain's new paper blockading system, much less to declare it unjust or impolitic; although Sir William Scott, in 1 Robinson's Rep. page 96, expressly declares, "that no vessel was liable to condemnation for entering a port alleged to be blockaded, unless it was invested by such a naval force as to make the entry therein hazardous." Sir, I am no apologist for France--nor do I know how any American, particularly a member of Congress, can be the apologist for either, after France and England have both expressly admitted, that their Orders in Council and decrees were direct violations of the law of nations, and adopted from necessity, as a measure of retaliation against each other, and have each charged the other with the first aggressions on our neutral rights. On examining that subject, I find that England, by her Orders in Council of May, eighteen hundred and six, by proclamation had placed France in a state of blockade; that France in eighteen hundred and seven had placed the British isles in a like manner in a state of blockade; that England, by her Orders in Council of the eleventh of November, eighteen hundred and seven, laid a toll on neutral vessels, and made them pass through her ports; France, by her decree of the seventeenth of December, eighteen hundred and seven, declared the vessels submitting to that order denationalized, and lawful prize; so that by their new principle of blockade, and their unprincipled retaliations, the commerce of the United States was cut up by the roots. The American Government, anxious to preserve the remnant of the property of the American merchants, that had escaped the rapacity of the tyrant of the ocean, on the twenty-second of December, eighteen hundred and seven, passes the embargo law, which the seditious clamors of certain arch traitors in the Eastern States, the violation of the law by treason and cupidity, induced Congress on the first of March, eighteen hundred and nine, to repeal, and to pass the present non-intercourse law, continued, under which France has revoked her decrees of Berlin and Milan, and now expects us to fulfil the conditions which we voluntarily imposed on ourselves, in the event of either revoking their decrees. Sir, while Great Britain finds such able advocates on this floor, she will find no necessity to redress our wrongs, but will wait the issue of our proceedings in Congress, to see if our remedial laws are not repealed, or our citizens excited to oppose their execution. But we ought not to be surprised at this, when we take a retrospective view of their conduct, their united and uniform opposition to the Administration for many years. They have reprobated every measure--Mr. Erskine's British treaty only excepted--and, as soon as that was rejected by the British Government, as being made contrary to instructions, our Administration was charged with making it, knowing that Mr. Erskine had no authority, and with seducing him to make it contrary to instructions. Afterwards, when Mr. F. J. Jackson, of Copenhagen memory, was sent over as a Minister, while his hands were yet stained with the innocent blood of the inhabitants of Copenhagen, and insulted the administration with the charge of making the treaty with Mr. Erskine, knowing that he had no authority to make it, and after the peremptory asseveration "that Government had no such knowledge, that with such knowledge no such arrangement would have been made," and "that no such insinuation could be admitted," he replied, "that he made no insinuation, without being able to substantiate a fact, and in that I must continue;" thereby persevering in the charge of falsehood in the Administration for which he was dismissed. Again our Government was expressly charged with knowing that Mr. Erskine had no authority, and with dismissing Mr. Jackson without any just cause; that his charge was true, and that in this the Government acted under the influence of France. In order to make such an impression on the public mind, Mr. Jackson is treated with uncommon attention. When he arrives at Baltimore he is surrounded by tories, royalists, Burrites, and British agents, and treated with great politeness--when he arrives in Philadelphia, he is overwhelmed by the civilities of refugees, tories, Burrites, and United States' Bank directors--when he arrives at New York, he is received with open arms by a set of beings of the same description, who invite him to a public dinner, and to test their attachment to the British Government treat him to "God save the King"--when he reaches Boston, there is great parade indeed; he is welcomed to the city by tories, traitors, disorganizers, and embargo-breakers, and Fanueil Hall, once the Council Chamber of the patriots of the Revolution, is prostituted to the disgraceful purpose of a public dinner to this disgraced Minister, and there we see a distinguished Senator of the United States testing his loyalty by the toast of "Britain's fast anchored isle, the world's last hope." After this hasty review of the past, we ought not to be surprised at any measures that may be taken against the Administration, when Great Britain is in the question. SATURDAY, February 23. _Commercial Intercourse._ Mr. MILNOR said: Mr. Chairman, when I take a view of the course which has been pursued in relation to this subject, during the present session, I confess I feel greatly surprised that we should be called upon to adopt the present measure. It will be recollected, sir, that, at a very early period, the honorable chairman of the Committee on Foreign Relations, reported a bill supplemental to the act of the 1st of May last. Although the gentleman did make one or two feeble attempts to call it up for consideration, yet it was manifest that there was a general indisposition to act upon it at that time. This, in the opinion of myself and many others, arose from a doubt in the good faith of the Emperor of the French. It was true that he had, through the Duke of Cadore, declared that the Berlin and Milan decrees were revoked on the 5th of August and that they should cease to have effect after the first of November; and it was also true that the President of the United States had, by his proclamation of the 2d of November, declared, not simply that this promise had been given, but that the decrees were revoked, and had ceased to operate. Notwithstanding this declaration of the President, the previous conduct of the French Emperor inspired an almost universal doubt of his good faith, and the curious character of the declaration made by Cadore, was calculated to increase it. The decrees of Berlin and Milan were revoked; that is, dead on the 5th of August, and ceased to have effect; that is, to live on the first of November; thus this creature had the wonderful faculty of being dead and alive at the same time; of ceasing to have effect, and acting with full vigor at the same instant. While all was doubt and hesitation, despatches were received from Mr. Russell, our Chargé d'Affaires at Paris, which made it apparent that the decrees which were to cease to have effect on the first of November, were, in the month of December, still in existence, and in full and practical operation. It is now evident that the President was duped by the French Emperor, and led to issue a proclamation on the faith of his promise, declaring a fact which did not exist. So convinced were the House that this was the true state of the case, that the honorable chairman of the Committee on Foreign Relations himself moved to recommit the bill he had previously introduced, and it was done. What, then, I would ask, sir, has since occurred to alter the face of affairs, to induce this new attempt to fasten on the restrictive system against our intercourse with Great Britain? Is there any thing in the last communication from the President, calculated to produce such an effect? On the contrary, it furnishes the most conclusive evidence of the treachery of Bonaparte, and ought to serve as a beacon to warn us against trusting him further. It is true that there is a letter from Mr. Pinkney to Lord Wellesley, dated December 10th, in which the former labors to prove, that Cadore's note to Armstrong is an absolute repeal of the French decrees, without any conditions precedent, and that therefore the British Government ought to be satisfied of its validity, and take immediate measures for revoking their orders and blockades, agreeably to their promise. But, it unfortunately happened that, on the same day on which our Minister at London was performing his duty, in transmitting his able but theoretical argument to the British Ministry, our Minister at Paris was also performing his duty in remonstrating against the practical operation of those very decrees, which were to have ceased to have effect on the first of November. [Here Mr. M. read the letter of Mr. Russell to the Duke of Cadore, dated December 10th, remonstrating against the seizure of the brig New Orleans Packet, it being the only case, as declared by Mr. Russell, to which the decrees could be applied subsequent to the first of November.] I recollect, sir, when Mr. Russell's correspondence was communicated to this House, an apology was set up for the French Emperor. It was alleged that the President's proclamation had not arrived in France at the time of the seizure of the New Orleans Packet, and that Bonaparte, having received no evidence of the intention of the American Government to fulfil their engagement, had used the precautionary measure of seizing the vessel, until he should receive some evidence of our good faith; and we were exultingly told that the President's proclamation would put all to rights, by satisfying his doubting Majesty of our sincerity, and would induce him to release all property seized subsequent to the first of November, and once more to put an end to those nine-lived decrees. How has this prediction been verified? The President's proclamation was communicated to the French Government on the 12th of December, two days after Mr. Russell's remonstrance; and yet, for any thing we know, that remonstrance remains unanswered, and the New Orleans Packet remains under seizure to this very day. It is true that, after waiting thirteen days, His Majesty condescended to direct the partial suspension of the decrees, thereby giving the most positive proof not only of their existence, but of their active operation. On the 25th of December, the Dukes of Massa and of Gaete, by the direction of their master, severally wrote a letter to the officers connected with their respective departments, directing them to suspend the operation of those very decrees, so far as respected the condemnation of vessels and cargoes seized after the first of November; not only those then in custody, but such as should thereafter be seized. I will read a part of those letters for the purpose of refreshing the memories of gentlemen on the subject. The Duke of Massa writes to the President of the Council of Prizes as follows: "In consequence of this engagement entered into by the Government of the United States, to cause their rights to be respected, His Majesty orders that all the causes that may be pending in the Council of Prizes, of captures of American vessels, made after the first of November, and those that may in future be brought before it, shall not be judged according to the principles of the decrees of Berlin and Milan, but that they shall remain suspended; the vessels captured or seized to remain only in a state of sequestration, and the rights of the proprietors being reserved for them until the 2d February next, the period at which, the United States having fulfilled the engagement to cause their rights to be respected, the said captures shall be declared null by the Council--and the American vessels restored, together with their cargoes, to the proprietors." The letter of the Duke of Gaete is of a similar import. I will read a single paragraph, which is as follows: "His Majesty having seen in these two pieces" (the President's proclamation and Gallatin's circular to the collectors) "the enunciation of the measures which the Americans purpose taking on the second of February next, to cause their rights to be respected, has ordered me to inform you that the Berlin and Milan decrees must not be applied to any American vessels that have entered our ports since the first of November, or may enter in future; and that those which have been sequestered, as being in contravention of these decrees, must be the object of a special report." Here, sir, we find these two officers, by direction of their master, explicitly recognizing the existence of the Berlin and Milan decrees, and suspending their operation not as to sequestration, but only as to condemnation. Not only those which had arrived after the first of November, but those which should thereafter arrive, were to be held in a state of sequestration, and to be subject to a special report. With this plain statement before their eyes, will gentlemen assert, can they possibly believe, that the decrees were revoked and ceased to have effect on the first of November? They surely cannot. If, then, the declaration of the fifth of August is proved to be false, and the assurance that the decrees should cease to have effect after the first of November was mere delusion, what becomes of the act of the first of May, and of the President's proclamation? Sir, they are mere dead letters, having no binding force or operation. The practical operation of the act of the first of May was to depend upon the performance of certain conditions on the part of one or the other of the belligerents, and the President's proclamation was intended as a mere notification of such performance. Admitting, then, that a faithful performance of the pledge of the fifth of August, on the part of France, would have had a binding force on us to carry our part of the agreement into effect, can any man under the existing circumstances believe we are so bound? Can a violation of a solemn pledge confer an obligation which was only intended to be created on the complete fulfilment of that pledge? Surely not. Sir, the law of the first of May, professed, on the face of it, to be impartial towards the two nations who have violated our rights. It promised that, if either would so revoke or modify her edicts as that they should cease to violate the neutral commerce of the United States, in that case certain restrictive measures should be revived against the other. Have either complied? France did, indeed, make a declaration that her edicts were revoked, and should cease to have effect on a certain day. That day has long since passed, and, for any thing we know, those edicts are in full operation. Nay, we have positive proof of their active existence, nearly two months after they were to have ceased; for, on the 25th of December, their operation as to the condemnation of American property was suspended, while their power to sequester was absolutely recognized and continued. With such glaring, such positive proof before our eyes, of the perfidy of France, we are about to act as though we believed she had performed her promise with the utmost good faith. Nay, more, sir; if she had, indeed, complied with her engagement, she could require nothing more of us than the act of the 1st of May last; that was the full amount of our engagement, the utmost limit of our bond. Upon, and in consequence of that, was the Emperor's promise founded. Yet we are not satisfied with that; persisting, in the face of the most positive and conclusive testimony to the contrary, to affect to believe that he has performed his promise, we are going beyond our contract; and, lest some doubts should arise of the Emperor's want of faith, lest our courts should decide, as they must decide, that the decrees being still in force, the act of the first of May is a mere dead letter, we are about to volunteer our services, and, by the section of the bill now under consideration, to revive those sections of the old non-intercourse law which were intended in a certain event to have been revived by the act of the first of May; to revive them against Great Britain, and that without exacting any conditions on the part of France. And must this sacrifice be made in order to bolster up the President's proclamation so prematurely issued? Must the best interests of the nation be put to hazard to save him the mortification of acknowledging his error and retracing his steps? Here, I fear, lies the true motive for our present procedure. This restrictive system is now to be revived against England, the French decrees being in full force and operation against us at the same time. Is this an honest neutrality? Is it equal and exact justice to those two nations? Is it not rewarding the perfidy of the one at the expense of the other, and at the expense of ourselves? Let us be cautious how we proceed in this course. If France choose, in consequence of our non-intercourse law of 1809, which was equal in its operation as to both nations, to take it so much in dudgeon as to confiscate the whole of the American property within her power, even that which had sought the rights of hospitality in her ports, how much more may Great Britain feel herself justified in retaliating on this most partial and unjust measure which we are about to adopt against her, by confiscating the millions of our property now within her power. And if we have been silent under the former, and have apparently acquiesced in it, what shall we, what can we, say, in case the latter event should take place? But, sir, the apologists of France tell us that His Majesty, the Emperor, has pledged his royal word that the decrees shall cease to operate as it respects us; and that, though he has thought proper to postpone the measure from the first of November to the second of February, he has only done so in order to ascertain whether we mean to go on to fulfil our engagements with good faith; that he is only holding our property seized since the first of November as security for our performance; and that, when he finds we are determined to resist the illegal orders and blockades of Great Britain, he will give up the property of our citizens. How insulting, this, to American feelings, to be told that a total violation of faith on the part of this man is excusable, because he chooses to suspect our faith. But, sir, do these people really believe the property of our citizens will be given up after the second of February, and in consequence of the measure we are now about to adopt? When did that voracious monster ever disgorge the plunder he had once received into his insatiable maw? Of the millions upon millions of which he has, at different times, and under various pretexts, plundered our unsuspecting citizens, where is the instance of a single dollar returning to its rightful owner? No, sir, let it once get within his iron grasp, and it is lost forever. The present measure is evidently intended as a propitiatory sacrifice to conciliate Napoleon--to induce him to become our friend, and to cease to rob and plunder our defenceless citizens. Is it calculated to produce this effect? Short-sighted as we confessedly are, sir, I should suppose we can scarcely be such silly politicians as to expect such an effect from such a measure. A brief view of the course which has been pursued, and is pursuing, by the Emperor of France, must produce a conviction in every unprejudiced mind, that he is not to be diverted from his purpose by a toy like this. Sir, it must be evident to every mind that his ambition soars to universal conquest. To this point all his measures tend--every other consideration is made to yield. For the accomplishment of this object, almost every nation on the Continent of Europe has been insulted, plundered, and subdued. To this end the external commerce of the continent has been annihilated, the agricultural and manufacturing interests have been depressed, and millions of his own subjects, and those of nations under his influence, impoverished and ruined. But there is one impediment to his gigantic project. Britain, proud, haughty Britain, stands in the way, and puts a stop to his career. Isolated, as she happily is, and the proud mistress of the ocean, she presents an impenetrable barrier to his ambitious views. But Britain must be humbled, she must be subdued. Her power on the ocean must be destroyed; and, to effect this, she must be attacked through her commerce and manufactures. For this purpose, what he is pleased to call his great continental system has been devised and rigorously enforced. Finding that all his restrictions and confiscations, aided by all his civil and military power, could not prevent the introduction of British merchandise upon the continent, he has resorted to a plan which promises to be more effectual. Regardless of the rights and interests of his subjects, he does not inquire whose the property may be; if it is of British origin it is committed to the flames. Such is his plan; such are the efforts and sacrifices he is making to insure its accomplishment. And yet, Mr. Chairman, it would seem as if we had the consummate folly to believe that we can appease this merciless tyrant by so weak, so silly, so futile a measure as this one now under consideration. We seem to have the madness to believe that this man, after the immense sacrifices he has made for the attainment of his object, would yield that object in our favor, and in order to be upon friendly terms with us would forego all other considerations. And from what premises is such a conclusion drawn? Is it from his past treatment of us? Let us, Mr. Chairman, take a brief review of his past conduct towards us, in order to see what we may expect in future. It is some years since he ordered our ships and cargoes to be burned upon the ocean, and many were burnt. He has, at various terms, and under different pretexts, seized and confiscated the property of our citizens on the ocean, and in his ports, and in the ports of his vassals. No longer ago than last spring, he told us that we were without just political views, without honor, without energy; and that, after refusing to fight for honor, we might find it necessary to fight for interest. This insulting declaration, which was dated on the 14th of February, was followed on the 23d of March by the Rambouillet decree, which confiscated all American vessels and cargoes which had arrived from the 20th of May, 1809, or should thereafter arrive in any port of France, her allies, or those occupied by her arms. Thus was from twenty to thirty millions of the property of our unsuspecting and confiding citizens, who had sought the rights of hospitality in his ports, sacrificed without a pretext, or with a pretext which added to the injury. Finding, after this gross violation of every principle which ought to govern honest and honorable nations, that our merchants, taught by sad experience that there was no safety within the range of his power, would venture there no more, he found it necessary to throw out another lure to entice the unwary within his reach. His tone is now suddenly changed. Instead of the haughty and insulting tyrant, he assumes the shape of a fond and doating lover. "His Majesty loves the Americans. Their prosperity and their commerce are within the scope of his policy. He is pleased in aggrandizing the United States." Yes, truly, His Majesty loves the Americans! If not for our persons, yet for our property, he has given the most ample and convincing proofs of his love. These sugared words, displaying so much of the milk of human kindness, seem to have perfectly reconciled us to his loving Majesty, and to have quite obliterated the remembrance of his harsh and unkind language so lately used towards us. And not only so, but it seems to have fully compensated us for all his robberies; and we forbear to touch that string, lest he might be somewhat ruffled, and once more induced to vent his anger on us. But lest his bare professions of love should not have the desired effect of inducing the Americans once more to place their property within his power, he directed his Minister to declare that the Berlin and Milan decrees were revoked, and should cease to have effect after the first of November. Our Administration, confiding in his assurances, in the face of all his previous conduct, published the proclamation of the second of November, and thereby assisted in deceiving our too credulous citizens. But few, however, ventured to place trust in him; and those who did, have met with a fate which every man of reflection ought to have anticipated. If, sir, such has been the course of that man's conduct towards us, (and that it has, I appeal to all the documents which have been laid before us,) I would ask why are we called upon to pass the section now under consideration? To me, it is matter of mystery and astonishment. MONDAY, February 25. _Commercial Intercourse._ The House resumed the consideration of the unfinished business of Saturday last, to wit, the bill supplementary to the act entitled "An act concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes," and the amendments reported thereto by the Committee of the whole House. The said amendments were read at the clerk's table. Mr. QUINCY.--Mr. Speaker: The amendments contained in the sections under consideration, contemplate the continuance and enforcement of the non-intercourse law. This proposition presents a great, an elevated and essential topic of discussion, due to the occasion, and claimed by this people, which comprehends within the sphere and analogies of just argument, the chief of those questions, the decision of which, at this day, involves the peace, the happiness, and honor of this nation. Whatever has a tendency to show, that if the system of non-intercourse exist, it ought not to be continued; or, that if it do not exist, it ought not to be revived; whatever has a tendency to prove, that we are under no obligation to persist in it, nor under any obligation to abandon it, is now within the fair range of debate. After long delay, and much coy demeanor, the Administration of this country have condescended to develop their policy. Though they have not spoken to our mortal ears, with their fleshly tongues, yet they have whispered their purposes through the constituted organs of this House. And these are the features of the policy which they recommend: it is proposed to grant particular and individual relief from anticipated oppressions of the commercial restrictive system. It is proposed to perpetuate that system, indefinitely, and leave our citizens, still longer, subject to its embarrassments, its uncertainty and its terrors. The chairman of our Committee of Foreign Relations, (Mr. EPPES,) at the time he introduced these amendments to the House, exhibited the true character of this policy, when he told us that it was "modelled upon the principle not to turn over to the Judiciary the decision of the existence of the non-intercourse law, but to make it the subject of legislative declaration." In other words, it is found that the majority of this House have too much policy to deny, and too much principle to assert, that the fact, on which, and on which alone, the President of the United States was authorized to issue his proclamation of the second of November last, has occurred. A scheme has, therefore, been devised, by which, without any embarrassment on this intricate point, the continuance and enforcement of non-intercourse may be insured, and toils, acceptable to France, woven by the hands of our own Administration, spread over almost the only remaining avenue of our commercial hope. The proposition, contained in these amendments, has relation to the most momentous and most elevated of our legislative obligations. We are not, now, about to discuss the policy by which a princely pirate may be persuaded to relinquish his plunder; nor yet the expectation entertained of relaxation, in her belligerent system, of a haughty, and perhaps jealous rival; nor yet the faith which we owe to a treacherous tyrant; nor yet the fond, but frail hopes of favors from a British regency, melting into our arms, in the honeymoon of power. The obligations which claim our observance are of a nature much more tender and imperious; the obligations which, as Representatives, we owe to our constituents; the allegiance by which we are bound to the American people; the obedience which is due to that solemn faith, by which we are pledged to protect their peace, their prosperity, and their honor. All these high considerations are materially connected with this policy. It is not my intention, Mr. Speaker, to dilate on the general nature and effects of this commercial restrictive system. It is no longer a matter of speculation. We have no need to resort for illustration of its nature to the twilight lustre of history, nor yet to the vibrating brightness of human intellect. We have experience of its effects. They are above, around, and beneath us. They paralyze the enterprise of your cities. They sicken the industry of your fields. They deprive the laborer and the mechanic of his employment. They subtract from the husbandman and planter the just reward for that product which he has moistened with the sweat of his brow. They crush individuals, in the ruins of their most flattering hopes, and shake the deep-rooted fabric of general prosperity. It will, however, be necessary to say a word on the general nature of this system. Not so much for the purpose of elucidating, as to clear the way, and give distinctness to the course of my argument. It will also be useful to deprive the advocates of this system of those colors and popular lures, to which they resort, on a subject in no way connected with the objects with which they associate it. My argument proceeds upon the assumption of the irrelevancy of four topics, usually adduced in support of the system contained in the law of May, 1810, and of March, 1809; commonly called the non-intercourse system. I take for granted that it is not advantageous; in other words, that it is injurious; that it is not fiscal in its nature; nor protective of manufactures; nor competent to coerce either belligerent. That it is injurious is certain, not only because it is deprecated by that part of the community which it directly affects, but because no man advocates it as a permanent system, and every one declares his desire to be rid of it. Fiscal it cannot be, because it prohibits commerce, and consequently revenue; and by the high price and great demand for foreign articles, which it produces, encourages smuggling. Protective of manufactures it cannot be, because it is indiscriminate in its provisions and uncertain in its duration; and this uncertainty depends, not on our legislative discretion, but on the caprice of foreign powers; our enemies, or rivals. No commercial system, which is indiscriminate in its restrictions, can be generally protective to manufactures. It may give a forced vivacity to a few particular manufactures. But in all countries, some, and in this almost all manufactures, depend, either for instruments or subjects, on foreign supply. But, if this were not the case, a system, whose continuance depended upon the will or the ever variant policy of foreign nations, can never offer such an inducement to the capitalist, as will encourage him to make extensive investments, in establishments resting on such precarious foundations. As to the incompetency of this system to coerce either belligerent, I take that for granted, because no man, as far as I recollect, ever pretended it; at least no man ever did show, by any analysis, or detailed examination of its relative effects on us, and either belligerent, that it would necessarily coerce either out of that policy which it was proposed to counteract. Embargo had its friends. There were those who had a confidence in its success. But who was ever the friend of non-intercourse? Who ever pretended to believe in its efficacy? The embargo had a known origin, and the features of its character were distinct. But "where, and what was this execrable shape--if shape it may be called, which shape has none?" We all know that the non-intercourse was not the product of any prospective intelligence. It was the result of the casual concurrence of chaotic opinions. It was agreed upon, because the majority could agree upon nothing else. They who introduced it, abjured it. They who advocated it, did not wish, and scarcely knew its use. And now that it is said to be extended over us, no man, in this nation, who values his reputation, will take his Bible oath that it is in effectual and legal operation. There is an old riddle on a coffin, which I presume we all learned when we were boys, that is as perfect a representation of the origin, progress, and present state of this thing, called non-intercourse, as is possible to be conceived. "There was a man bespoke a thing, Which when the maker home did bring, That same maker did refuse it; The man that spoke for it did not use it, And he who had it did not know Whether he had it;--yea, or no." True it is, that if this non-intercourse shall ever be, in reality, extended over us, the similitude will fail, in a material point. The poor tenant of the coffin is ignorant of his state. But the poor people of the United States will be, literally, buried alive in non-intercourse; and realize the grave closing on themselves and their hopes with a full and cruel consciousness of all the horrors of their condition. For these reasons, I put all such common-place topics out of the field of debate. This, then, is the state of my argument; that as this non-intercourse system is not fiscal, nor protective of manufactures, nor competent to coerce, and is injurious, it ought to be abandoned, unless we are bound to persist in it, by imperious obligations. My object will be to show that no such obligations exist; that the present is a favorable opportunity, not to be suffered to escape, totally to relinquish it; that it is time to manage our own commercial concerns, according to our own interest; and no longer put them into the keeping of those who hate or those who envy their prosperity; that we are the constituted shepherds, and ought no more to transfer our custody to the wolves. It is agreed, on all sides, that it is desirable to abandon this commercial restrictive system. But the advocates of the measure now proposed, say that we cannot abandon it, because our faith is plighted. Yes, sir, our faith is plighted; and that, too, to that scrupulous gentleman, Napoleon; a gentleman so distinguished for his own regard of faith; for his kindness and mercies towards us; for angelic whiteness of moral character; for overweening affection for the American people and their prosperity. Truly, sir, it is not to be questioned, but that our faith should be a perfect work towards this paragon of purity. On account of our faith, plighted to him, it is proposed to continue this non-intercourse. But, Mr. Speaker, we may be allowed, I presume, to inquire whether any such faith be plighted. I trust we are yet freemen. We are not yet so far sunk in servility, that we are forbidden to examine into the grounds of our national obligations. Under a belief that this is permitted, I shall enter upon the task, and inquire whence they arise and what is their nature. Whence they arise is agreed. Our obligations result, if any exist, under the act of May the first, 1810, called "An act concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes." It remains, therefore, to inquire into the character of this act, and the obligations arising under its provisions. Before, however, I proceed, I would premise, that whether I shall obtain, I am doubtful, but I am sure that the nature of my argument deserves, the favor and prepossession for its success, of every member in the House. My object is to show, that the obligation which we owe to the people of the United States, is a free and unrestricted commerce. The object of those who advocate these measures is to show that the obligation we owe to Napoleon Bonaparte, is a commerce restricted and enslaved. Now, as much as our allegiance is due more to the people of the United States than it is to Napoleon Bonaparte, just so much ought my argument to be received by the American Congress, with more favor and prepossession than the argument of those who advocate these measures. It is my intention to make my course of reasoning as precise and distinct as possible. Because I invite scrutiny, I contend for my country according to my conscientious conceptions of its best interests. If there be fallacy, detect it. My invitation is given to generous disputants. As to your stump orators, who utter low invective and mistake it for wit, and gross personality, and pass it off for argument, I descend not to their level; nor recognize their power to injure; nor even to offend. Whatever obligations are incumbent upon this nation, in consequence of the act of the first of May, 1810, they result from the following section: "_And be it further enacted_, That in case either Great Britain or France shall, before the third day of March next, so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not, within three months thereafter, so revoke or modify her edicts, in like manner, then the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eighteenth sections of the act, entitled 'An act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes,' shall, from and after the expiration of three months from the date of the proclamation aforesaid, be revived and have full force and effect, so far as relates to the dominions, colonies, and dependencies of the nation thus refusing or neglecting to revoke or modify her edicts in manner aforesaid. And the restrictions imposed by this act shall, from the date of such proclamation, cease and be discontinued in relation to the nation revoking or modifying her decrees, in the manner aforesaid." Divested of technical expression, this is the abstract form of this section. It provides that a new commercial condition shall result, on the occurrence of a specified fact; which fact the President shall declare. On this state of the subject I observe that nothing in the act indicates whether the object of the United States, in providing for this eventual commercial condition, was its own benefit, convenience, or pleasure; or whether it was in the nature of a proffer to foreign nations. It will, however, be agreed on all sides, that the object was either the one or the other. If the object were our own benefit, convenience, or pleasure, it will not be pretended that we are under any obligation to continue the system. For that which was adopted, solely for either of these ends, may, whenever our views concerning them vary, be abandoned; it being the concern of no other. But it is said that the act was, in truth, a proffer to the two belligerents, of commerce to the obsequious nation, prohibition of commerce to the contumacious nation. If this were the case, I shall agree, for the sake of argument, that it ought to be fulfilled to the full extent of the terms. But inasmuch as there is, in the terms of the act, no indication of such a proffer, it follows that its nature must arise from the circumstances of the case; and that the whole of the obligation, whatever it is, grows out of an honorable understanding, and nothing else. As such, I admit, it should be honorably fulfilled. The nature of this proffer is that of a proposition upon terms. Now what I say is, and it is the foundation of my argument, that whoever claims an honorable compliance with such a proposition, must be able to show, on his part, an honorable acceptance and fulfilment of the terms. The terms our act proposed were--an act to be done; an effect to be produced. The act to be done was, the revocation or modification of the edicts. The effect to be produced was that this revocation or modification should be such as that these edicts should "cease to violate our neutral commerce." Now the questions which result are, has the act been done? If done, has it been so done as to amount to an honorable fulfilment or acceptance of our terms? The examination of these two points will explain the real situation of these United States, and the actual state of their obligations. In considering the question whether the fact of revocation, or modification, has occurred, it is unfortunate that it does involve, at least in popular estimation, the propriety of the proclamation, issued on the second of November last, by the President of the United States. I regret, as much as any one, that such is the state of things, that the question, whether a foreign despot has done a particular act, seems necessarily to be connected with the question concerning the prudence and perspicacity with which our own Chief Magistrate has done another act. I say in popular estimation these subjects seem so connected. I do not think that, in the estimation of wise and reflecting men, they are necessarily thus connected. For the fact might not have occurred precisely in the form contemplated by the act of May, 1810, and yet the President of the United States, in issuing his proclamation, might be either justifiable or excusable. It might be justifiable. A power intrusted to a politician to be used on the occurrence of a particular event, for the purpose of obtaining a particular end, he may sometimes be justifiable in using, in a case which may not be precisely that originally contemplated. It may be effectually, though not formally, the same. It may be equally efficient in attaining the end. In such a case a politician never will, and perhaps ought not to hesitate at taking the responsibility, which arises from doing the act in a case not coming within the verbal scope of his authority. Thus, in the present instance. The President of the United States might have deemed the terms, in the letter of the Duke of Cadore, such as gave a reasonable expectation of acceptance on the part of Great Britain. He has taken the responsibility. He has been deceived. Neither Great Britain accepts the terms, nor France performs her engagements. The proclamation might thus have been wise, though unfortunate in its result. And as to excuse, will it be said that there is nothing of the sort in this case? Why, sir, our Administration saw the Great Napoleon, according to his own confession, over head and ears in love with the American people. At such a sight as this, was it to be expected of flesh and blood that they should hesitate to plunge into a sea of bliss, and indulge in joy with such an amorous Cyprian? But, whether the fact has occurred, on which alone this proclamation could have legally issued, is a material inquiry and cannot be evaded, let it reach where or whom it will. For with this is connected the essential condition of this country; on this depends the multiplied rights of our fellow-citizens, whose property has been or may be seized or confiscated under this law: and hence result our obligations, if any, as is pretended, exist. It is important here to observe, that, according to the terms of the act of May 1, 1810, the law of March 1, 1809, revives on the occurrence of the fact required, and not on the proclamation issued. If the fact had not occurred, the proclamation is a dead letter, and no subsequent performance of the required fact, by either belligerent, can retroact so as to give validity to the previous proclamation. The course required by the act of the 1st of May, 1810, unquestionably is, that the fact required to be done should be precedent, in point of time, to the right accruing to issue the proclamation; and of consequence that, by no construction, can any subsequent performance of the fact required operate backward to support a proclamation issued previous to the occurrence of that fact? Whenever this fact is really done, a new proclamation is required to comply with the provisions of the act, and to give efficacy to them. I am the more particular in referring to this necessary construction, resulting from the terms of the act of the first of May last, because it is very obvious that a different opinion did until very lately, and probably does now, prevail on this floor. We all recollect what a state of depression the conduct of Bonaparte in seizing our vessels, subsequent to the first of November, produced, as soon as it was known in this House, and what a sudden joy was lighted up in it, when the news of the arrival of a French Minister was communicated. Great hopes were entertained and expressed, that he would bring some formal revocation of his edicts, or disavowal of the seizures which might retroact and support the proclamation. It was confidently expected that some explanation, at least of these outrages, would be contained in his portmanteau; that under his powder-puff, or in his snuff box, some dust would be found to throw into the eyes of the American people, which might so far blind the sense, as to induce them to acquiesce in the enforcement of the non-intercourse, without any very scrupulous scrutiny into the performance of the conditions by Bonaparte. But, alas! sir, the Minister is as parsimonious as his master is voracious. He has not condescended to extend one particle, not one pinch of comfort to the Administration. From anything in the Messages of our President, it would not be so much as known that such a blessed vision, as was this new Envoy, had saluted his eyes. His communications preserve an ominous silence on the topic. Administration, after all their hopes, have been compelled to resort to the old specific, and have caused to be tipped upon our tables a cart-load of sand, grit, and sawdust, from our metaphysical mechanic, who seesaws at St. James', as they pull the wire here in Washington. Yes, sir, a letter written on the tenth day of December last, by our Minister in London, is seriously introduced to prove, by abstract reasoning, that the Berlin and Milan decrees had ceased to exist on the first of the preceding November, of whose existence, as late as the 25th of last December, we have, as far as the nature of things permit, ocular, auricular, and tangible demonstration. And the people of this country are invited to believe the logic of Mr. Pinkney in the face of the fact of a continued seizure of all the vessels which came within the grasp of the French custom-house, from the first of November, down to the date of our last accounts; and, in defiance of the declaration of our Chargé d'Affaires, made on the 10th of December, that "it will not be pretended that the decrees have in fact been revoked," and in utter discredit of the allegation of the Duke of Massa, made on the 25th of the same month, which, in effect, declares the Berlin and Milan decrees exist, by declaring "that they shall remain suspended." After such evidence as this, the question whether a revocation or modification of the edicts of France has so occurred "as that they cease to violate the neutral commerce of the United States," does no longer depend upon the subtleties of syllogistic skill, nor is to be disproved by any power of logical illation. It is an affair of sense and feeling. And our citizens, whose property has been, since the first of November, uniformly seized, and of which they are avowedly to be deprived three months, and which is then only to be returned to them on the condition of good behavior, may as soon be made to believe, by the teaching of philosophy, that their rights are not violated, as a wretch, writhing under the lash of the executioner, might be made by a course of reasoning to believe, that the natural state of his flesh was not violated, and that his shoulders, out of which blood was flowing at every stroke, were in the quiet enjoyment of cuticular ease. Whether the revocation expressed in the letter of the Duke of Cadore, was absolute or conditional, or whether the conditions were precedent or subsequent, in the present state of our evidence, it seems scarcely important to inquire. Yet the construction of that celebrated passage, in his letter of the 5th of August, has been, as I have ever seen, given so much in the manner of lawyers, and so little in that of statesmen, that it deserves a short elucidation; how much the words "it being understood that," in their particular position are worth; and whether they have the effect of a condition precedent, or of a condition subsequent. A statesman will look at the terms contained in that letter in a different aspect, not for the purpose of ascertaining how much a court of law might be able to make of them, as to discern in what position of language the writer intended to intrench himself, and to penetrate his real policy, notwithstanding the veil in which he chose to envelope it. He will consider the letter in connection with the general course of French policy, and the particular circumstances which produced it. By these lights, it is scarcely possible to mistake the character and true construction of these expressions. Upon recurring to the Berlin and Milan decrees, it will be found that they contain a solemn pledge, that "they shall continue to be rigorously in force, as long as that (the English) Government does not return to the principle of the law of nations." Their determination to support this pledge, the French Government has uniformly and undeviatingly declared. They have told us constantly that they require a previous revocation on the part of Great Britain, as the condition of their rescinding those edicts. The question who should first revoke their edicts had come to be, notoriously, a sort of point of honor between the two belligerents. Perfectly acquainted with this state of things, we have been perpetually negotiating between the one and the other, and contending with each that it was his duty previously to revoke. At length the French Government, either tired with our solicitations, or more probably, seeing their own advantage in our anxiety to get rid of these decrees, which yet, as an essential part of its continental system of total commercial exclusion it never intended to abandon, devised this scheme of policy, which has been the source of so much contest, and has puzzled all the metaphysicians in England and the United States. Cadore is directed to say to Mr. Armstrong: "In this new state of things I am authorized to declare to you, sir, that the decrees of Berlin and Milan are revoked, and that after the first of November they will cease to have effect; it being understood that, in consequence of this declaration, the English shall revoke their Orders in Council, and renounce the new principles of blockade which they have wished to establish; or that the United States, conformably to the act you have just communicated, shall cause their rights to be respected by the English." In this curious gallimaufry of time present and time future, of doing and refraining to do, of declaration and understanding, of English duties and American duties, it is easy to trace the design, and see its adaptation to the past and present policy of the French Emperor. The time present was used, because the act of the United States required that previously to the proclamation the edicts "shall be" revoked. And this is the mighty mystery of time present being used, in expressing an act intended to be done in time future. For if, as the order of time, and the state of intention indicated, time future had been used, and the letter of Cadore had said the decrees shall be revoked on the first of November next, then the proclamation could not be issued, because the President would be obliged to wait to have evidence that the act had been effectually done. Now as the French Emperor never intended that it should be effectuated, and yet meant to have all the advantage of an effectual deed without performing it, this notable scheme was invented. And, by French finesse, and American acquiescence, a thing is considered as effectually done, if the declaration that it is done be made in language of time present, notwithstanding the time of performance is in the same breath declared to be in time future. Having thus secured the concurrence of the American administration, the next part of the scheme was so to arrange the expression that either the British Government should not accede, or if it did accede, that it should secure to France the point of honor--a previous revocation by the British; and if they did not accede, that there should be a color for seizures and sequestrations, and thus still further to bind the Americans over to their good behavior. All this is attained by this well-devised expression "it being understood that, in consequence of this declaration, the English shall revoke." Now, Great Britain either would accede to the terms, or she would not. If she did, and did it as the terms required, in consequence of this declaration, then it must be done previous to the first of November, and then the point of honor was saved to France; so that thus France, by a revocation verbally present, effectually future, would attain an effectual previous revocation from the English. But if, as France expected Great Britain would not trust in such paper security, and therefore not revoke, previously to the first of November, then an apology might be found for France, to justify her in refusing to effectuate that present, future, and absolute, conditional revocation. And if ever the Duke of Cadore shall condescend, which it is probable he never will, to reason with our Government on the subject, he may tell them that they knew that the French Emperor had issued those decrees, upon the pledge that they were to continue until the British abandoned their maritime principles; that he told us, over, and over, and over again, that previous revocation by the British was absolutely required; that for the purpose of putting to trial the sincerity of the British, he had indeed declared that the French decrees "are revoked," on the first day of November ensuing; but then it was on the expressed condition that _in consequence of that declaration_, not of the revocation, but of _that declaration_, the British were to revoke, and, if they did not, the "understanding" was not realized; and his rights of enforcing his system remained to him. And I confess I do not well see what answer can be made to such an argument. Let us examine the case in common life. You, Mr. Speaker, have two separate tracts of land, each lying behind the farms of A and B, so that you cannot get to one of the tracts, without going over the farm of A, nor to the other tract without going over the farm of B. For some cause or other, both A and B have a mutual interest that you should enjoy the right of passage to your tract, over the farm of each respectively. A and B get into quarrels and wish to involve you in the dispute. You keep aloof, but are perpetually negotiating with each for your old right of passage-way, and telling each that it is owing to him that the other prohibits your enjoyment of it. At last A says "Come. We will put this B to trial. I on this fifth day of August, declare my prohibitions of passage-way are revoked, and, after the first day of November, my prohibitions shall cease to have effect; but, it is understood that B, _in consequence of this declaration_, shall also revoke his prohibition of passage-way." If B refuses, does A, under the circumstances of such a declaration, violate any obligation, should he refuse to permit the passage? Might not A urge with great color and force of argument, that this arrangement was the effect of your solicitation and assurance that B would be tempted by such a proffer, and that the revocation of B was required, by the terms, to be the consequence of A's declaration, for the very purpose of indicating that it must be anterior to the fact of A's effectual revocation? But let this be as it will; suppose that you, on the first of November, in consequence of A's assurance, had sent your servants and teams to bring home your products, and A should seize your oxen, and teams and products, and drive your servants, after having stripped them, from his farm, and should tell you, that he should keep this, and all other property of yours, on which he can lay his hands, for three months, and then he should restore it to you, or not, as he saw fit, according to his opinion of your good behavior. I ask, if, in any sense, you could truly say that on the first day of November the prohibitions or edicts of A were so revoked, that they ceased to violate your liberty of passage? Sir, when viewed in relation to common life, the idea is so absurd, that it would be absolutely abusive to ask the question. I refer the decision of so simple a case to the sound sense of the American people, and not to that of "scurvy politicians, who seem to see the things they do not." In a condensed form my argument is this. From a revocation merely verbal, no obligations result. By the terms of our act the revocation must be effectual, "so as the edict shall cease to violate our rights." Now the simple question is, whether a uniform seizure, since the first of November, under those edicts (for none other are pretended) of all their property, and holding it for three months, to see how they will behave, be or be not a violation of the rights of the American people? In relation to the revival by a formal declaration of the non-intercourse system, as is proposed in one of these sections, I offer this argument: Either the fact, on which the President's proclamation could alone have been issued, has occurred or it has not. If it has occurred, then the law of March, 1809, is revived, and this provision, by a declarative law, is unnecessary. If it have not occurred, then there is no obligation to revive it, for alone on the occurrence of the specified fact does our obligation depend. In such case the revival by declaration is a mere gratuity to Napoleon. This is in fact the true character of the law. As to the provisions for relief of our merchants against anticipated seizure, I hold them scarcely deserving consideration. Heaven be praised we have independent tribunals and intelligent juries. Our judges are not corrupt and our yeomanry will not be swayed in their decisions, by the hope of presidential favors, nor be guided by party influence. The harpies of your custom-house dare as soon eat off their own claws, as thrust them, in the present state of the law of March, 1809, into the fatness of their fellow-citizens. The timorous and light-shunning herd of spies and informers have too much instinct to pounce on such a prey. But, in order to cause any obligation to result under the law of May 1, 1810, it is necessary, not only that the fact required be done, and the effect required produced; but also the terms of that act must be accepted. The proffer we made, if such be the character of that act, was only to revive the non-intercourse law against the contumacious belligerent, after three months had expired from the date of the proclamation. Now it is remarkable, that, so far from accepting the terms of the proposition contained in our act, as the extent of our obligations, Bonaparte expressly tells us that they mean something else; and something, too, that no man in this House will dare to aver they really intend. It is also remarkable that the terms of this celebrated letter from the Duke of Cadore, of the fifth of August, which have been represented as a relaxation in the rigor of the French Emperor's policy, are, in fact, something worse than the original terms of the Milan decree, and that, instead of having obtained a boon from a friend in this boasted letter, our Administration have only caught a gripe from a Tartar. By the terms of the Milan decree, it was to "cease with respect to all nations who compelled the English to respect their flag." By the terms of the letter of Cadore, it was to cease on condition that the United States "cause their rights to be respected." Now, as much as an obligation, of an indefinite extent, is worse than a definite obligation, just so much worse are the terms of the letter of Cadore, than the original terms of the Milan decree. Mr. Speaker, let us not be deceived concerning the policy of the French Emperor. It is stern, unrelenting, and unrelaxing. So far from any deviation from his original system being indicated in this letter of the Duke of Cadore, a strict adherence to it is formally and carefully expressed. Ever since the commencement of "his continental system," as it is called, the policy of Napoleon has uniformly been to oblige the United States to effectual co-operation in that system. As early as the 7th of October, 1807, his minister, Champagny, wrote to General Armstrong, that the interests of all maritime powers were common, to unite in support of their rights against England. After this followed the embargo, which co-operated effectually at the very critical moment, in his great plan of continental commercial restriction. On the 24th of the ensuing November, he resorts to the same language--"in violating the rights of all nations England has united them all by a common interest, and it is for them to have recourse to force against her." He then proceeds to invite the United States to take "with the whole continent the part of guaranteeing itself from her injustice, and in forcing her to a peace." On the 15th of January, 1808, he is somewhat more pointed and positive, as to our efficient concurrence in his plan of policy. For his Minister, Champagny, then tells us, that "His Majesty has no doubt of a declaration of war against England by the United States," and he then proceeds to take the trouble of declaring war out of our hands, and volunteers his services, gratuitously, to declare it, in our name and behalf. "War exists then, in fact, between England and the United States; and His Majesty considers it as declared from the day on which England published her decrees." And in order to make assurance doubly sure, he sequesters our vessels in his ports, "until a decision may be had on the dispositions to be expressed by the United States," on his proposition of considering themselves "associated in the cause of all the powers," against England. Now in all this there is no deception, and can be no mistake, as to the purpose of his policy. He tells us, as plain as language can speak, that "by causing our rights to be respected," he means war, on his side, against Great Britain. That "our interests are common"--that he considers us already "associates in the war," and that he sequesters our property by way of security for our dispositions. This is his old policy. I pray some gentlemen on the other side of the House to point out in what it differs from the new. The letter of Cadore on the fifth of August tells us, it is expected that we "cause our rights to be respected, in conformity to our act," and the same letter also tells us what he understands to be the meaning of our act. "In short, Congress engages to oppose itself to that one of the belligerent powers which shall refuse to acknowledge the rights of neutrals." In other words, "by causing our rights to be respected," he means war on his side against Great Britain. In perfect conformity with this uniform, undeviating policy, his Minister, Turreau, tells our Government, in his letter of the 28th of November last, that "the modifications to be given to the present absolute exclusion of our products will not depend upon the chance of events, but will be the result of measures, firm and pursued with perseverance, which the two Governments will continue to adopt to withdraw from the monopoly and from the vexations of the common enemy a commerce loyal and necessary to France as well as the United States." And to the end, that no one feature of his policy should be changed, or even appear to be relaxed, his Excellency the Duke of Massa, and his Excellency the Duke of Gaete, in their respective letters of the 25th of December, declare, that the property taken, shall be "only sequestered until the United States have fulfilled their engagements to cause their rights to be respected." Now, Mr. Speaker, is there a man in this House bold enough to maintain, or with capacity enough to point out, any material variation between the policy of France to this country, subsequent to the Cadore letter, of the 5th of August, and its policy anterior to that period? The character of the policy is one and indivisible. Bonaparte had not yielded one inch to our Administration. Now, as he neither performed the act required by the law of May, 1810; nor produced the effect; nor accepted the terms it proposed; whence arise our obligations? How is our faith plighted? In what way are we bound again to launch our country into this dark sea of restriction; surrounded on all sides with perils and penalties? The true nature of this Cadore policy is alone to be discovered in the character of his master. Napoleon is a universal genius. "He can exchange shapes with Proteus to advantage." He hesitates at no means and commands every skill. He toys with the weak--he tampers with the mean--he browbeats the haughty--with the cunning he is a serpent. For the courageous he has teeth and talons. For the cowering he has hoofs. He found our Administration a pen and ink gentry--parchment politicians; and he has laid, for these ephemeral essences, a paper fly-trap, dipped in French honey. Hercules, finding that he could not reach our Administration with his club, and that they were out of their wits at the sight of his lion's skin, has condescended to meet them in petticoats, and conquer them, spinning at their own distaff. As to those who, after the evidence now in our hands, deny that the decrees exist, I can no more reason with them than with those who should deny the sun to be in the firmament, at noon-day. The decrees revoked! The formal statute act of a despot revoked by the breath of his servile Minister; uttered on conditions not performed by Great Britain, and claiming terms not intended to be performed by us! The fatness of our commerce secure, when every wind of heaven is burdened with the sighs of our suffering seamen, and the coast of the whole continent heaped with the plunder of our merchants! The den of the tiger safe! Yet the tracks of those who enter it are innumerable, and not a trace is to be seen of a returning footstep! The den of the tiger safe! While the cry of the mangled victims are heard through the adamantine walls of his cave; cries, which despair and anguish utter, and which despotism itself cannot stifle! No, Mr. Speaker. Let us speak the truth. The act now proposed is required by no obligation. It is wholly gratuitous. Call it then by its proper name. The first fruit of French alliance. A token, a transatlantic submission. Any thing except an act of an American Congress, the Representatives of freemen. The present is the most favorable moment for the abandonment of these restrictions, unless a settled co-operation with the French continental system be determined. We have tendered the provisions of this act to both belligerents. Both have accepted--both, as principals, or by their agents, have deceived us. We talk of the edicts of George the Third and Napoleon. Yet those of the President of the United States, under your law, are far more detestable to your merchants. Their edicts plundered the rich. His make those who are poor still poorer. Their decrees attack the extremities. His proclamation fixes upon the vitals, and checks the action of the seat of commercial life. I know that great hopes are entertained of relief from the proposed law, by the prospect of a British regency. Between a mad monarch and a simpering successor, it is expected the whole system of that nation will be abandoned. Let gentlemen beware, and not calculate too certainly on the fulfilment, by men in power, of professions made out of it. The majority need not go out of our own country, nor beyond their own practice, to be convinced how easily, in such cases, proud promises may eventuate in meagre performance. The whole bearing of my argument is to this point. It is time to take our own rights into our own keeping. It is time, if we will not protect, to refrain from hampering, by our own acts, the commerce of our country. Put your merchants no longer under the guardianship and caprice of foreign powers. Punish not, at the instigation of foreigners, your own citizens for following their righteous calling. We owe nothing to France. We owe nothing to Great Britain. We owe every thing to the American people. Let us show ourselves really independent; and look to a grateful, a powerful, and then united people, for support against every aggressor. Mr. MUMFORD.--The gentleman (Mr. QUINCY) from Massachusetts has given us a long talk, that amused the House very much with tropes and figures, and I hope has convinced himself that he is right. I am no advocate of either belligerent, I have not much confidence in the declarations of foreign Governments. I did, however, put some confidence in the Erskine arrangement, but I was deceived; it met my approbation, because I was among those who were determined to settle our disputes with Great Britain in our own way, as an independent nation. And I will now ask the gentleman from Massachusetts whether, if the Chancellor of the Exchequer, or any other higher authority in Great Britain, should write a letter to Sir William Scott, and a circular letter to the Collector of Liverpool, informing them that the Orders in Council did not apply to American vessels from and after the 1st November, he would not deem those letters to be evidence of the fact? If so, why not give the same credence to the letters of the Duke of Massa and the Duc de Gaete? I wish to preserve the faith of the nation. We have been plundered by both belligerents, and have as little confidence in the one as in the other; but without some reliance on the word of constituted authorities there is an end to all negotiations. The gentleman says that we are about to shut up "the only avenue to our commercial hope." These are his own words. Let us now examine this avenue to our commercial hope. I will in the first place ask the indulgence of the House while I read and state some facts from a letter I have just received from Liverpool, dated January 8, of the present year, from one of the most respectable houses there, which states that the importation of cotton from the United States was 320,000 bales in 1810; that there were then 145,000 bales on hand; tobacco imported in the same period, 14,700 hogsheads; and notwithstanding the consumption, the quantity imported kept the market supplied constantly with about the same number of hogsheads throughout the year 1810. Potashes imported 28,946 barrels, on hand 13,000 barrels: rice 39,000 imported, and there remain on hand very large supplies. Those are the principal articles of the produce of our soil unsold on 8th January, 1811, in the port of Liverpool alone, besides the quantities in the other ports of Great Britain; and the same letter observes: "This supply checks any attempt at speculation, and without an export vent is procured, the stock on hand must remain unsalable; if the belligerents return to a sense of justice, the continental markets being in that case reopened, will require large supplies, and cause our market to rise." The prices of upland cotton are stated at 12d. sterling per lb.; tobacco, very prime, 4d. to 7d., middling quality, great quantity on hand, fit only for continental market, at 1½ a 4d.; pot-ashes £43 to £44 per ton--rice 19 to 23 per cwt. Sir, there is no American merchant who can pursue that commerce, attended with the enormous charges and duties imposed on those articles without inevitable ruin; and I call to the recollection of gentlemen the numerous failures in consequence of bills of exchange returned under protest, which had been predicated on shipments to British ports; and yet the gentleman from Massachusetts tells us this is "the only avenue to our commercial hope." Send your vessels to the Brazils, you meet them there intriguing against your commerce; to Buenos Ayres, you find them there; to Cayenne, there also; to Terra Firma, you there find them in conjunction with Miranda intriguing and counteracting your commerce; to Barbadoes, Surinam, Demerara, Trinidad, Martinique, Guadaloupe, Jamaica, &c., and you are met with enormous port charges, and duties amounting to prohibition on the staple articles of the New England States; codfish, beef, pork, butter, lard, cheese, hams, &c. It is true we are admitted every now and then, at the mere will and caprice of a governor, to import into those colonies flour at a duty of one dollar per barrel; rice and lumber in proportion; on condition that you shall not take away any article but rum and molasses, and this is the only avenue to our commercial hope. They are like the locusts of Egypt in relation to our commerce. What has become of your 1,350,000 tons of shipping, valued at fifty dollars per ton, amounting to $67,500,000, one-third of which belongs to Massachusetts? Is the gentleman willing to surrender the carrying trade to Great Britain? Let him turn his attention to the ports of New York, Philadelphia, Baltimore, Norfolk, Charleston, and New Orleans, and he will find that British ships are now taking the bread out of the mouths of his own constituents. They are enabled to take freight on so much lower terms than American vessels can afford to do it in consequence of the very great difference of duties in Great Britain, between importations in America or in a British ship, that we cannot compete with them unless you will countervail them, and take a decisive stand in defence of your commerce to continental Europe, and carry your produce direct to the consumers, and be no longer subjected to be fleeced by the monopolizers and retailers of the old world. They are not content to have the whole products of your soil deposited on their Island, on which they receive an enormous import, and raise an extra war tax, besides; but they will claim very soon the exclusive right to carry it when and where they please in their own ships. We are thus reduced to a worse situation than in a state of colonization; we have now all the disadvantages of being plundered by their navy, and none of the advantages of receiving its protection, although they have the impudence to charge us four per cent. convoy duty on their gewgaws and manufactures, which convoy they do not give us. Can this be a desirable state of things? And if persevered in, I am convinced the commerce of the United States will descend into the same tomb with the gentleman's story of the coffin. There are three classes of your citizens to be provided for, as contemplated in the provisions of this bill--first, sequestrations in France, Spain, Italy, Holland, Denmark, Sweden, Prussia, and Russia. Second, those who have sailed to France under the faith of the Duke of Cadore's letter of the 5th of August. Third, importers of British manufactures. But it would seem by the arguments I have heard advanced in this House that there were only the latter class to be provided for, and, as I presume British precedent and authority will be admitted by the gentleman from Massachusetts to be good evidence, I will inform him and the House, what was the concurrent testimony of the English merchants before the bar of the House of Commons on the subject of exports and imports of the United States. They stated on oath that the exports to the United States were about twelve millions sterling, and that the imports were about four millions on an average for the years 1802, 1803, 1804, when there were no decrees against American commerce, and consequently it took its own natural channel and supplied each market according to its natural consumption. The difference between export and import being about eight millions sterling against us. Those English merchants state that it was made up and received from our trade with continental Europe; this has not been disproved by the British Chancellor of the Exchequer, nor by his friend Stevens, of War in Disguise--it is a fact; they cannot deny it. And shall we be told about the profitable commerce with Great Britain? After a statement of these facts, shall we go on to gorge their warehouses with twelve millions sterling of produce, when their own internal consumption does not exceed four millions sterling? I hope not; and I do trust that the time is not far distant when we shall assert and defend our just rights. Mr. BLAISDELL.--Mr. Speaker: nothing would induce me to address you at this late hour, while there is so great a commotion in, and so many tokens of impatience manifested by, the House, but a sense of duty, and a desire to lend my feeble aid in arresting the progress of a measure which, in my opinion, involves a question of no less importance than whether we are prepared, after having been insulted, robbed, and deceived, by the French Emperor, to follow the fatal example of the petty, servile States of Europe, and throw this people into the embraces of that monster, at whose perfidy and corruption Lucifer blushes and Hell itself stands astonished. If I understand the amendment of the honorable gentleman from Virginia, its principal object is to renew the non-intercourse of 1809, so far as it respects Great Britain, which was previously attempted to be revived by the proclamation of the President of the second of November last. I should have supposed that, rather than have made so glaring a confession that that State paper misstated fact, the gentleman would have been dissuaded from his darling object, the non-intercourse. But it seems that when it comes in competition with the views of Napoleon, the veracity of the President must be sacrificed. But, sir, convinced as I am, that our paper war, which has been applied to all purposes, even to calling out the army, raising the militia, pressing the horses, &c., and sending them on an expedition the distance of five hundred miles, with express orders not to fight, has damned the character of this Government, broken down the spirit of the nation, embarrassed our citizens, and emptied the late overflowing Treasury, so as to render the resort to borrowing necessary; I cannot but hope that the amendment on your table will be rejected to give place to an amendment offered some days ago by an honorable gentleman from New York, (Mr. EMOTT,) when this bill was under discussion in Committee of the Whole. Sir, if I understand that amendment, it went to suspend the whole restrictive system, except the third section of the law of May last, which saves fines and forfeitures incurred under our various restrictions. This amendment, to be sure, changes the position recommended by the Executive, but not much more than the bill, with the addition of the amendment now under consideration. Although it becomes this House to pay due deference to Executive recommendations; yet, if there are good reasons for a departure from such recommendations, it equally becomes the members of this House, out of a regard to the correctness of their own proceedings, to make such a departure correspond with the reasons which produced it. The position recommended by the Executive made its first appearance in a short paragraph in the President's Message, recommending such a modification of the law of May last, as would remove all doubts as to its exposition and execution; for the details of such modification we are referred to the report of the Secretary of the Treasury. In this report we find a project recommended to enforce the non-importation against English merchandise of every kind and from every country. In the first place, by making the proclamation of the President, declaring that the French edicts had ceased to violate our neutral commerce on the first day of November last, the only evidence of that fact; and in the second place, by authorizing the officers of the army and navy to enter ships, dwelling-houses, stores, or any other place, to search for and seize merchandise suspected of being imported contrary to law, and making a donation of the boon so seized to the wretch who should be hardy enough, in defiance of all moral obligation, thus to rob his neighbor; and in the third place, by declaring all merchandise so seized in the Northern section of the Union, adjoining the British provinces, to be forfeited, unless by a palpable inversion of the rule of evidence in all other cases, and even in this case, adopted in all other sections of the Union, he is able to prove that the merchandise was legally imported and the duties paid--with many other provisions, all of which have been laid before this House, in the first bill on the subject reported by the Committee of Foreign Relations, the details of which are too well recollected to need pointing out, or to be suffered to meet a public investigation at this time. But, sir, with all due deference to the high ministerial officer who recommended the project, and likewise to the honorable committee who reported the bill, I may be allowed to pay it the compliment of saying that, in my opinion, previous to the reign of that tyrant, who, by a military force, aided by projects of this kind, has destroyed the sanctuary of justice, and has spread pillage, debauchery, robbery, and death, throughout the greater part of Europe; such a bill as that would have been scouted from this Hall as the production of a madman. But on receiving the Message of the President, covering the letters of Mr. Russell, the American Chargé des Affaires at Paris, stating that American vessels, loaded with _bona fide_ property of American citizens, had been seized and sequestered in the ports of France, under the Berlin and Milan decrees, as late as the 9th of December, doubts seemed to arise in this House, whether the decrees had ceased to operate on the first of November, as the President had declared. And the bill was sent back to the committee, for the purpose, as I understood, of bringing in a bill to suspend the operation of the law of May last, until we should hear from France, whether the Emperor had disavowed those seizures, and whether the decrees had actually ceased to operate on the first of November. And I did understand the honorable chairman of the committee, and several other gentlemen on the other side of the House, to say on that occasion, that if, after we had new arrivals from France, that did not prove to be the case, they should be as ready as any gentleman to repeal the whole code of restrictive laws until the Emperor should learn to respect our rights. What evidence have we had since to give us a more favorable prospect, as it respects the revocation of the decrees? Not a syllable. But, on the other hand, we have conclusive evidence that they were not so revoked that their operation ceased on that day. If it be asked where this evidence appears, the answer is ready. In the first place, by the letter of the Grand Judge, the Duke of Massa, to the President of the Council of Prizes, as also by the letter of the Minister of Finance to the Director General of the Customs, both dated the 25th of December, fifteen days after the manly remonstrance of Mr. Russell, in the case of the Orleans Packet; in which remonstrance he states the outrageous conduct of the custom-house officers, and requests a prompt and speedy disavowal of the seizures, and that the property be again placed in the hands of the owners. But, sir, is there any thing in these two letters which looks like a disavowal of the seizure in express violation of the promise of the Duke of Cadore? No, sir, although these letters were written fifteen days after the remonstrance of Mr. Russell. Instead of this they both agree that the decrees did not cease to operate on the first of November, but that the property taken with the Orleans Packet, and all the property which should be seized between the first of November and the second of February, must remain in depot to wait the pleasure of the Emperor, on our causing our rights to be respected by England. But how, Mr. Speaker, are we to cause our rights to be respected? Is it by merely reviving the law of May last, as is the object of this amendment? Certainly this is not their meaning; for both these letters have reference to that law, as well as the proclamation of the President giving it effect, and to the circular of the Secretary of the Treasury, addressed to the collectors of the several ports, enjoining a strict execution of that law. No, sir, this is not what is to be done, which will satisfy the Emperor. He who flatters himself that this will be sufficient, shuts his eyes against official evidence to the contrary; as well in the above-recited letters, written with a perfect knowledge of the performance on our part, and the promise of a performance on the part of France on the first day of November, as in the letter of the French Minister in the United States on the 12th of December, in which we are told that the French restrictions on our commerce are not to cease, but only on the result of firm and energetic measures to be adopted and persevered in by the two Governments against the common enemy. But shall I be told that the letters of the Grand Judge and Minister of Finance promised that the property taken from our citizens since 1st of November should be restored, if we cause the law to be carried into effect after the 2d day of February, and therefore we were to believe it and ought to wait until we hear whether that has been the case? For the honor of my Government, I hope not. Is it really come to this, that we are brought to acknowledge that the Duke of Cadore was correct when he told General Armstrong that His Majesty could place no reliance on the American Government? No, sir, if this be true, for heaven's sake let us not express it. But what is this amendment which re-enacts the law of May last, and such pitiful reasoning as I have heard on this occasion, but placing our seal to that infamous insinuation? The President, on the mere promise of the Minister of the Emperor, that the Berlin and Milan decrees should cease to operate on the first day of November, placed full faith and reliance on that promise, and issued his proclamation on the 2d, presuming the promise had been fulfilled--and, shall we say that the Emperor is justifiable in disbelieving the law of May last, solemnly enacted by the three branches of the Government and the President's proclamation, together with the Circular of the Secretary of the Treasury, enjoining the law to be carried into effect? I hope not; for if we are become so pitifully servile as this, well might Cadore, in his letter of February 14th, 1810, tell General Armstrong that the Americans were without just political views, without honor, and even independence. And if we, by adopting this amendment, condescend to justify the Emperor, in his insult upon the plighted faith of our Government, in my opinion we shall furnish the American people and the world with just ground to say Amen to the declaration of Cadore in that respect. Will any gentleman still say, that the decrees ceased to operate on the first of November, since we have had official information from the French Government itself, that our vessels are to be seized under these decrees, until the second of February? I trust not. Those gentlemen who support this amendment, ought to recollect that the sections which go to re-enact the law of May last, contain a confession that that law is not now in operation; for if the decrees did actually cease to operate on the first of November, no one doubts but the law is now in full force, without the provisions of this bill. When the honorable chairman of the committee first offered his amendment, a misunderstanding seemed to take place between him and two gentlemen on the opposite side of the House, viz. the gentleman from Maryland, (Mr. WRIGHT,) and the gentleman from Tennessee, (Mr. RHEA,) which undoubtedly happened in this way. While the honorable chairman well knew that the decrees did not cease on the first of November; therefore to keep alive the spirit of the law of May, which gave England three months after they did cease, it became necessary to lengthen the time for her to revoke; and the other two gentlemen, as it would seem, really supposed, that because Mr. Pinkney had said that Cadore's letter was precision itself, these decrees really did cease to operate agreeable to that promise; although we have the official information from Mr. Russell on our tables, that the Orleans Packet was the first case that had happened after the first of November, to which the Berlin and Milan decrees could have been applied, and that they were applied in that case, and that several late arrivals, which left France from twenty to twenty-five days afterwards, bring no information from him that a change had taken place, and had that been the case, he would certainly have communicated information to the Government before the rising of Congress. On the contrary, these arrivals confirm what he had stated, and say, that every vessel arriving in France shares the same fate. Mr. Speaker, until I heard those two gentlemen, I did suppose that no man of common sense could have believed a position, in such direct opposition to evidence. And from the opinion which I have of the discernment of the gentleman from Tennessee, I think I must have misunderstood him, while perhaps it may be improper to include the other gentleman in the supposition. Sir, I seldom trouble the House with any observations of mine, nor is it my intention, at this time, to examine and expose all the winding and management which has been practised, to bring about such a state of things as to render plausible this measure at this time. I shall, however, examine the non-intercourse system from the date of the law of March, 1809, and inquire what was its professed object? What use has been made of it? And how has it been regarded by the belligerents? And also notice some of its effects upon our own citizens as well as upon the Treasury. What must be the inevitable consequence if this measure is suffered to go into effect? I take it to amount to an entire non-importation of any of the articles, products, or manufactures of more than three-fourths of the civilized world, to which our merchants would, at this time, run the risk of attempting voyages; for, from the Continent of Europe no one returns unless at the expense of this Government. The dominions of Great Britain, including the East and West Indies, as well as her European dominions, and those on the American Continent, are immense. The products of these various countries formed a principal part of those importations of the last year, which, while the non-intercourse slept, gave new life and vigor to every branch of business. Our seaports, which the year before presented the gloomy appearance of cities besieged by a hostile foe, again resumed the appearance of enterprise, industry and wealth. Thousands, who in 1809 were either a burden to their friends, in the poor-house, or begging their bread in the streets, were in 1810 enjoying the fruits of their industry in a comfortable supply of the necessaries of life, while the farmer and planter sowed his seed and cultivated his field, with the comfortable prospect that his crop would not decay on his hand for want of a market. Now, sir, although exportation is not interdicted by this bill, yet I apprehend the result will be much the same. It can hardly be expected that Great Britain, who gentlemen on the other side of the House are fond of considering as the cause of all our commercial distress, will condescend to pay us specie for our produce, while our ports are closed, not only against her shipping of all kinds, but against every article of her products and manufactures, as well as those of her colonies and dependencies, while they are open to those of her enemy. Again, what was the effect of the non-intercourse in 1809 upon our Treasury? In addition to the bankruptcy and wretchedness spread over the face of the whole country, we are informed by the annual report of the Secretary of the Treasury, laid on our tables, that the net revenue arising from duties on merchandise and tonnage, accruing during that year, amounted to only $6,527,000, while we are informed in the same report, that this source of revenue in the three first quarters of the year 1810, while commerce was free, amounted to a sum exceeding $7,250,000, and the Secretary adds, that he believed the whole revenue arising from duties on merchandise and tonnage for that year would amount to more than $12,000; making an increase in this year, when commerce was unshackled, of $5,473,000, notwithstanding all the robberies of Napoleon, which probably amounted to more than forty millions, a free importation of the avails of which would have greatly increased the revenue of that year. From this view of the subject, we find a deficit in the revenue of 1809, caused by this measure, of $5,473,000, and, in anticipation of the effects of the law now about to be enacted, the Secretary of the Treasury has, in the same report, recommended an immediate additional duty to be laid upon importations, which, together with the high duties already established by law, he thinks will not amount to more than $8,000,000; making an anticipated deficiency in the next year's revenue, occasioned by this measure, of $4,000,000, compared with that of 1810. But if we compare the revenue arising from duties on merchandise and tonnage during the year 1809, while commerce was restricted by the non-intercourse, with what it was in 1807, while it was unshackled, we shall find a deficiency of about $11,000,000. From this view of the subject, which is taken from authentic documents, which I invite gentlemen to controvert if they have it in their power, it is demonstrated that if we suffered this system to go into operation, we are not only to again reduce our citizens to a state of bankruptcy in their private fortunes, while loaded with additional taxes, but, notwithstanding the aid of these additional taxes, our Treasury is, if possible, to be reduced to a more complete state of bankruptcy than at present. I put it to gentlemen, who are in the confidence of the Cabinet, to say, why we are called upon again to plunge this nation into such a state of poverty and wretchedness? Is it necessary as a measure of self-defence, as the only mode of resistance which will bring England to terms? For myself I should suppose that our late experiment in this species of warfare, at which France took so much offence, as to take occasion to seize and confiscate the property of American citizens, to the amount of $40,000,000, which rendered necessary an appropriation of $80,000 during the present session, in order to enable those of our citizens, who had been thus robbed and plundered, to revisit their native shores, afforded a spectacle too humiliating to suffer us to make another attempt so soon, and before we have so far recovered from the effects of our late experiment as to be able to defray the ordinary expenses of government without having recourse to annual loans for the purpose. Are we bound to adopt this measure on account of the faith of Government being pledged to France by the law of May last? Here give me leave to inquire what has been the further effect of this law. It seems England, although she saw that if it had any operation at all, it operated only against her, was willing to consider it as a municipal regulation of our own, and treated it as such, while Bonaparte at first, and for ten months, passed it over as inoffensive to him, until our vessels, which had been shut up in our ports by its elder sister, the embargo, having got released from that strong measure, flocked into the ports of France, Spain, Holland, and Naples, all under the immediate and entire control of France, when, on the 23d March, an order was issued by his gracious and loving Majesty to seize and confiscate the property of our citizens in all those countries; which property is, by the best calculation, estimated at more than forty millions. And you will perceive, Mr. Speaker, that the Duke of Cadore saw, that, by suffering the law to pass unnoticed, till our property released from the embargo had filled nearly every port in Europe under French control, and then issuing an order which was to have a retrospective operation of ten months, was such a gross outrage upon every principle of honor and justice, as well as the usages of public law, that he, in a letter to General Armstrong, of the 5th August, 1810, attempts to excuse the piratical transaction, by saying that the Emperor knew nothing of the law of March, until very lately. But, I pray gentlemen to take notice that General Armstrong, in his letter to Cadore of the 10th of March, (five months before the one just recited from Cadore,) asserts that this law was communicated to him in the month of June or July preceding--one whole year before the declaration made by Cadore. But to pursue this subject: on the first day of May, 1810, while this robbery, I ought to presume, was unknown to the Executive--certainly to the people--this non-intercourse law was repealed; but the majority, for wise purposes, I presume, did, in the same law that repealed the non-intercourse, give the President power, in case England or France should, before the 1st day of March, so revoke or modify her edicts as that they should cease to violate the neutral commerce of the United States, to declare the same by proclamation; in which case, the non-intercourse should be revived against the nation neglecting to revoke or modify her edicts, in like manner, for the space of three months after the date of such proclamation. And you will recollect, sir, that this law was also opposed by the minority, not so much, perhaps, because they suspected either the integrity or impartiality of the President, as because they thought it unconstitutional to commit a power to the Executive which was, in its nature and effect, an act of legislation, viz: to revive a law at his discretion which was to affect the great interest of the nation, and might result in war. I say, at his discretion; and I ask gentlemen to take notice that the law reads, "so revoke or modify." This law was also sent by the President to our Ministers at London and Paris, as he states in his Message. But, what was it sent there for? Only to be used as an inducement to those nations to revoke their unjust edicts, which was the avowed object of the provision when it passed. And, if sent there for that purpose, it would seem, that to have acted a neutral part, it ought to have been used alike at the palaces of St. Cloud and St. James. But, Mr. Speaker, what was the fact? Here we may learn the management of which I spoke when I first addressed you. This law, which you will perceive was in the nature of a generous overture made to the belligerent who first revoked his edicts, changed its character when offered to the other belligerent, who should neglect to revoke the obnoxious edicts until after his enemy had done so; and, instead of being a generous offer, contained a threat, that if she did not revoke, we should shut our ports against her products, while they should be open to those of her enemy. And this is the light in which it was viewed by our Government, as will be seen in Mr. Smith's letter to General Armstrong, of the 5th day of June, 1810, (printed documents, p. 35,) in these words: "It might be added, that the form in which the law now presents the overture, is as well calculated as the overture itself to gain a favorable attention, inasmuch as it may be regarded by the belligerent first accepting of it as a promise to itself and a threat only to its adversary." For this view of the subject, gentlemen will perceive that it is much more agreeable to close any matter in dispute upon a generous offer for so doing, than it would be to do so while threatened by their opponent that if it is not done they must suffer the consequence of their own folly and his vengeance. Now, in looking through the documents, I mistake if gentlemen have not discovered some management in this business, so that while the law was presented to France as an offer made to herself, it should be presented to England in no other character than that of a threat. It seems that the first correspondence with our Minister which we are suffered to see, is a letter from Mr. Smith to Mr. Pinkney, of the 22d May; although it appears from that letter that the Secretary of State had sent a copy of the law in a previous letter of the 4th of that month to Mr. Pinkney, as also another copy in the letter of the 22d; but we hear nothing of instructions in either to use this new overture, which the law presents, to the best advantage at the Court of St. James, while it retained its character of an offer made to that Government. Indeed, it would seem most natural to suppose that the instructions given in this business were contained in the letter of the 4th, which was the first enclosing a copy of the law. But, at this we are not suffered to look, nor at the one sent to General Armstrong, of the same date, which was also the first to him enclosing a copy of the law. But, Mr. Speaker, as we are not suffered to see the first correspondence on this important business, which we are called upon by the Executive to carry into effect by a new act of legislation, it becomes doubly our duty to examine well this letter of the twenty-second, and see what that treats of, and whether it compares with the first we are suffered to see, sent to General Armstrong on this subject. In this letter to Mr. Pinkney of the twenty-second, the Secretary commences, as he says, with much surprise, that Great Britain had not revoked her blockades, and that she had not sent a man of rank to replace Mr. Jackson; and, after having dwelt at great length on the latter of these subjects, he mentions that he had sent a copy of the law, as also another, in his letter of the fourth of that month, and tells Mr. Pinkney to let the British Government know that the provisions of the law would be carried into effect, but not a syllable of proffering it as an offer made to that Government and a threat to France. But, instead of this, the Secretary selects two subjects, which he must have known would be difficult to close, and tells Mr. Pinkney that if another Minister was not sent to replace Mr. Jackson, to let the British Government know that he would return to the United States. And as though this was not sufficient to prevent the British Government from closing with the conditions of the new overture, the attack on the Chesapeake must be settled in a manner agreeable to the propositions made to Mr. Rose and Mr. Erskine, which he might well know would not be done, as the British Government had told him it could not be closed in that way. On the first of July, Mr. Pinkney acknowledges Mr. Smith's letter of the twenty-second of May, and very properly goes on to execute the instructions it contained as to the British Government sending a man of rank to replace Mr. Jackson, &c. And, in my opinion, very properly notices the scrap of instructions it contained, respecting the law of May last, by merely mentioning, that while he is engaged with Lord Wellesley on these other subjects, he thinks he shall draw his attention to the non-intercourse law, but I find no account of his ever presenting the law to that Government. Now, Mr. Speaker, while we see in this letter of the twenty-second the substance of all we are permitted to see of the use to be made by Mr. Pinkney of this law, as an inducement to the British Government to revoke the Orders in Council, let us examine what was the course pursued towards the French Government to induce it to take advantage of the law, while it retained the character of a favorable overture, so that the British Government should have to meet it as a threat, or as a rod held over them to procure the revocation of their edicts. In order to do this, I shall examine the first letter which is suffered to come to public view, from Secretary Smith to General Armstrong, after the date of the law of May first. This bears the date of June fifth, documents, page 34. In this, we find that he had sent two before, each one enclosing a copy of the law, and no doubt both containing instructions what use to make of it. For we find, even in this third letter, that Mr. Smith tells General Armstrong, (to use his own words,) "If there be sincerity in the language held at different times by the French Government, and especially in the late overture to proceed to amicable and just arrangements in the case of our refusal to submit to the British Orders in Council, (not blockades,) no pretext can be found for longer declining to put an end to the decrees of which the United States have so justly complained." And here, I entreat gentlemen to notice that this is the first ground stated by our Government to that of France, as being that which would be insisted upon from England--a compliance on her part required to entitle her to the provisions of this law, viz., her relinquishing the Orders in Council. We may here notice, that Mr. Smith adds, as a further inducement to France to take advantage of the law, while it retained the character of a favorable overture, "that by putting in force the non-intercourse against England, agreeable to the terms of this statute, that the very species of resistance would be made which France has been constantly representing as the most efficacious." But, Mr. Smith goes still farther in his instructions, and tells General Armstrong, "that it may be added, that in the form in which the law now presents the overture, it is as well calculated as the overture itself to gain a favorable attention, inasmuch as it may be regarded by the belligerent first accepting it as a promise to itself, and a threat only to its adversary." In this letter, we find that the Secretary states a first ground, which was necessary in the first instance to entitle the French Government to the provisions of this law. What was this ground? Why, he tells General Armstrong to let the French Government understand that the President would not proceed to give the law effect, if the restoration of the property of our citizens be finally refused; and closes his letter by directing him to let that Government know that the only ground, short of a preliminary restoration of the property, on which the contemplated arrangement could take place, would be an understanding that the confiscation was reversible, and that it would become immediately the subject of discussion, with a reasonable prospect of justice to our injured citizens. Was this the ground on which the subject was placed? It seems so, from this official letter of the Secretary. Yes, sir, it was; and with due deference, I may be allowed to say, the only honorable and just ground; and if the American Government had possessed independence enough to have still occupied this ground, we would not have had the mortification to discuss the bill on the table at this time. But, instead of this, although Mr. Smith had just received Cadore's insulting letter, in which he more than insinuates that, as a Government and nation, we are destitute of just political views, without honor, energy, or even independence, and closes by letting our Government know of the seizure and sale of the property of our citizens in all the ports of Europe under French control; what was the conduct of the American Government on this occasion? I entreat gentlemen to take notice, that, with this horrid picture of insult and robbery fresh in their recollection, the same conciliatory disposition, guided by the principles of neutrality, which dismissed a British Minister for an implied insult, induced Mr. Smith to inform General Armstrong that the President thought it best not to make any animadversions on that subject at that time. (Printed documents, page 34.) The next letter on this subject worthy of notice, is one of the 5th of July, in which Mr. Smith acknowledges the receipt of information, that the property which he had said in his last must be restored, in order to entitle France to the American commerce while it was denied to England, was sold, and the proceeds deposited in the _caisse prive_--privy purse of the Emperor. Here, indeed, Mr. Smith seems to have almost forgot himself, and to conceive he was giving instructions how to proceed with a British Minister, and tells General Armstrong to demand every reparation of which the subject was susceptible. But, Mr. Speaker, is it not worthy of notice that he closes even this spirited letter, with such a history of piracy and insult then on his desk before him, by quitting the ground he had taken in his letter of the fifth of June, and, instead of a proposed renewal of the non-intercourse against England, if she should neglect to withdraw her Orders in Council, which was the only ground taken by the President with Mr. Erskine, and also the only thing contemplated when the law of May last was passed, as also the only ground taken by himself only one month before, (having, it is presumed, heard from France in the interval,) he condescends to tell the General, that if France should demand it, he might give her to understand that it was the President's intention to renew the non-intercourse against England, if she did not also rescind her blockades. It is here again to be noticed, that he again repeats, what he had before told General Armstrong, that a restoration of the property was indispensable, in order to a renewal of the non-intercourse against England. But again: will, I had like to have said, the servile manner, in which a rescinding the blockade is coupled as a condition with the withdrawing the Orders in Council, escape notice? Immediately on instructing General Armstrong to state to the French Government that a repeal of the blockade of eighteen hundred and six would be insisted on, the Secretary adds: "You will press the reasonableness of permitting the United States to proceed in such way as they may think proper, in relation to any subsequent blockades, or any other blockades not against France," which to me reads in this way, _i. e._, as we have, at the request of the French Government, receded from our first ground, and included blockades also, you are instructed humbly to request Bonaparte to permit us to do our own business in our own way in future. _My God!_ After all this, to see the Government of my country soliciting, at the feet of the Emperor of France, for permission to manage their own affairs in their own way! What American can read this correspondence without laying his hand upon his heart and exclaiming, O my Government, my Government, now is the gold become dim, and the most fine gold changed! The next thing we meet with, is Mr. Smith's letter of the 2d of November, to General Armstrong, enclosing the President's proclamation, declaring the edicts of France so revoked, as that they ceased to violate the neutral commerce of the United States, and of course the non-intercourse to be revived against England after the 2d of February, if she did not in the mean time revoke her orders, which, after the ground taken, and so often repeated, with respect to the restoration of the property, must astonish every American. But we have still this as a consolation, that Mr. Smith, notwithstanding he had been told by the Duke of Cadore that it was impossible any compromise could take place on that subject, says in the letter enclosing the proclamation that the President presumes that the requisitions contained in his letter of the 5th of July, as to the restoration of the property, will have been satisfied. In the name of God, Mr. Speaker, what grounds had he for this presumption? In addition to this, in his letter of the 5th of November, Mr. Smith instructs General Armstrong to let the Emperor know that the third section of the law of March, 1809, at which he took so much offence, was not intended to operate against his subjects, but against our own citizens. And although this may be, and probably is, true, yet a confession of this kind, after so recent and aggravated insult and violence, must I think be sickening to the American people, and Napoleon himself will be at a loss to know why it was made unless to testify our loyalty. But our loyalty to the contrary notwithstanding, the Duke of Cadore in his letter to General Armstrong of the 12th of September, in answer to one from him of the 7th of that month, tells the General, that the Emperor sees with pleasure that the Americans are far from acknowledging the tyrannical principles of English legislation, yet informs him that as to the merchandise confiscated, it having been confiscated as a measure of reprisal, the principles of reprisal must be the law in that affair. Now, Mr. Speaker, after seeing how the law of May, 1810, has been used with the French Government, and for aught we know, not used at all with that of England, until it had assumed the character of a threat, together with the various changes of position taken by our Government in this business, I think it demonstrates a management, which, if duly examined, will not leave much doubt whether it be indispensably necessary to suffer this law to go into operation, either as a measure of resistance against England, or of good faith towards France. For instance, at one time England must repeal her Orders in Council to entitle her to the benefit of the law; at another, viz: after hearing from France, the condition must include a repeal of the blockades also, and on the part of France, she must rescind her decrees and restore the property, then a promise is to be accepted as it respects the property, and, to top the climax, the proclamation issues on the presumption of an agreement having taken place, on the part of France, that the property shall be restored. But after all this we are told by Cadore, on the 12th of September, to be contented, for as to the property in question it will not be restored. But, Mr. Speaker, it seems that the President, in compliance with a resolution of the House of the 21st of December, has furnished documents which put the question beyond a doubt, that the proclamation was issued, declaring that the French decrees were repealed, so that they ceased to violate the neutral commerce of the United States, when, to say the least, he had no official information of the fact, or, if he had, he has taken care to keep it to himself. Mr. Smith, in his letter to Turreau, of the 18th of December, is compelled to say in effect, that the French restrictions on our commerce are not rescinded, or, to use his own words: "If, then, for the revoked decrees, municipal laws producing the same commercial effect have been substituted, the mode only, and not the measure, has undergone an alteration." In this situation, I should like to be informed why we are called upon by the Executive so to modify our laws as to carry the non-importation against England and her dependencies forcibly into effect, and thus destroy the small remains of our commerce, the effects of which we have so recently felt at the Treasury, since the repeal of the non-intercourse law of May last, as I have already shown from the Secretary's report. This information I have not as yet been able to obtain, although I have sought for it, unless I resort to the last paragraph in General Turreau's letter of December 12, to Mr. Secretary Smith, in answer to one from the Secretary, remonstrating against the exclusion of cotton and tobacco from the ports of France. In reply to which he says, among other things, that he thinks some modification will take place in this respect, but tells him that this will depend upon the firm and persevering measures to be pursued by the two Governments against the common enemy. In this intimation of his Imperial Majesty through his Minister, which, by-the-by, is not the first of the kind, will I fancy be found the only necessity of suffering this measure to go into operation. And are gentlemen prepared to obey? I trust not. No, sir, I will not for a moment entertain so degrading an idea. But firmly believing the contrary, I still hope the amendment will be rejected, and with it the whole restrictive system, until France shall learn to respect our rights. Mr. Speaker, if I am to be called an enemy to my country for opposing this measure, under present circumstances, to my country I will appeal; being entirely willing that the honorable gentleman from Maryland (Mr. WRIGHT) and his friends should share the whole of the honor of advocating the right of the Emperor to take and withhold the property of our citizens. Sir, it creates no astonishment to hear that gentleman contend that we are bound by the law of May to carry the non-intercourse into effect against Great Britain, but, to hear a gentleman possessed of the discernment of the honorable chairman of the committee who reported this bill, make this declaration, is truly astonishing, when the reverse is the fact. I trust I have already shown that in every communication from our Executive to the French Government on the subject, that Government has been told that if, in connection with the revocation of the decrees, the sequestered property was not given up, the non-intercourse would not be renewed against England. These several letters were communicated to this House, and published nearly three months since, and are, at this moment, in the hands of the British Government, and, by this tenure, that Government has a right to rest assured that the non-intercourse will not be renewed against them. Indeed, to believe the contrary, would be an insult to the plighted faith of the Executive. Mr. BIGELOW.--Mr. Speaker, I regret extremely that, at this late period of the session, and at this late hour of the night, the high sense of the duty which I feel that I owe to my constituents and to my country, should compel me to submit to the consideration of the House a few remarks upon this all-important subject. They will be of a general nature, candid, and as much as possible confined to the subject of debate. Sir, on this occasion, I feel no disposition to censure the conduct of the President. Permit me, however, before I proceed to the subject, to notice a very singular remark of the honorable gentleman from Pennsylvania, (Mr. Ross.) That gentleman observed, "that when this bill was laid on your table, he was determined to vote against it; that he considered it wrong in principle, and injurious in its consequences; and that he should now vote against it, had not several gentlemen, particularly the gentleman from Massachusetts, (Mr. QUINCY,) been so severe in their censures upon the conduct of the Administration. He felt it his duty to support the Administration, and should, therefore, vote for the bill, although he disliked it." Sir, I apprehend the President will not feel under very great obligations to that gentleman for this kind of support. For myself, I am free to declare, that stronger reasons than those must operate upon my mind, before I can give my sanction to a measure professedly impolitic and unjust. This bill, Mr. Speaker, is advocated on the ground that, by the law of May, 1810, we are under obligations to France to prohibit commercial intercourse with Great Britain. If, sir, I rightly recollect, for I have not the law before me, the substance of the provision, as it respected France, was, that if she so revoked or modified her edicts and decrees, as that they should cease to violate our neutral commerce, and Great Britain refused, for three months, to pursue a similar course, then was this system of non-intercourse to commence, as it respects Great Britain. Mr. Speaker, I deny that the faith of the nation is pledged by the law of May, 1810. It is neither a contract nor a treaty. To constitute a contract, two parties are necessary, at least. All writers upon the subject have so considered it; and, sir, if one party can make a contract with another, without the knowledge, consent, or approbation of the other, it is a new discovery, with which, as yet, I am unacquainted. Such, sir, is the nature of the contract referred to. The Congress was the only party concerned in making it. France knew nothing of it; it was made wholly without her consent or approbation. How, then, is the national faith plighted to France by that law? Sir, I know of but one way in which the faith of this nation can be pledged to another, and that is, by a treaty approved and ratified by the constituted authorities; and surely, sir, no gentleman will contend that this law amounted to a treaty. If, then, it was neither a contract nor a treaty, the faith of the nation is not pledged. The most you can make of it is, as was observed on a former occasion by the honorable gentleman from Virginia, (Mr. RANDOLPH,) "that it is a rule of conduct for ourselves." But, sir, I am willing to admit, in case France had fairly and honestly complied with the conditions of the law, so often referred to, that good faith on our part might have required that we should pass the present bill. What was the condition to be performed on the part of France? Sir, she was to revoke and modify her decrees, so that they should cease to violate our neutral commerce. This has not been done. The Berlin and Milan decrees are not even nominally revoked. Look at the letters of Mr. Russell, our Chargé des Affaires at Paris, of the tenth of December last. Look at the letters of the Dukes of Massa and Gaete, of the twenty-fifth of the same month. Look at her conduct subsequent to the first of November, the time when you were informed that those decrees would cease to operate. Has she not seized every vessel which has arrived at her ports since that period? Upon this point I will not waste the time of the House by attempting to show that those decrees are still in force, a fact which has been already so fully and amply proved by the candid and able arguments of the honorable gentleman from New York, (Mr. EMOTT.) But, sir, I will go further, and, for the sake of argument, admit, not only that the law of May, 1810, has all the binding force upon this nation of a treaty made by the regular constitutional authorities, but that the Berlin and Milan decrees were, on the fifth day of August last, actually revoked; and, after the first day November, ceased to violate our neutral commerce. There is still another important point to be considered, and I hope gentlemen will attend to it with candor. Sir, it is a principle well established by the law of nations, as well as by the laws of nature and reason, that when one nation, in consequence of revoking certain acts injurious to another nation, claims from the other nation the performance of a promise made on condition that those acts should be revoked, it is necessary that the nation thus claiming the fulfilment of the promise, should first, not only revoke those injurious acts, but it should also be done fairly and honestly, without subterfuge or reserve, and without, at the same time, adopting other measures equally injurious, and producing the same effects. Now, sir, admit that the declaration of the Duc de Cadore, in his letter of the 5th of August, 1810, that the Berlin and Milan decrees were revoked, and, after the first of November, would cease to violate our neutral commerce, was an actual revocation of those decrees; still, sir, if this was merely to amuse and deceive us, if another act equally injurious was at the same time substituted, will it be contended that France has, nevertheless, fairly complied with the conditions of your law? Sir, it is a very singular fact that, on this very fifth day of August, another decree was issued by the French Emperor, which was equally injurious, and amounted, in fact, to a prohibition of our commerce, as much as the Berlin and Milan decrees. I allude to the duties established by the Emperor on articles of American produce, which were so enormously high, that the owner would prefer an abandonment of his cargo to a payment of the duties. Even this was insufficient; for, by a subsequent decree, various articles were prohibited, and those which were allowed, must only be exported in vessels which should sail from Charleston or New York. Is this, sir, that fair, that honest repeal of the Berlin and Milan decrees; is this that _bona fide_ performance of the condition; that ceasing to violate our neutral commerce, which lays us under such solemn obligations to France? Am I not, then, Mr. Speaker, authorized to say, that the condition of the law of May, 1810, has not been complied with? I trust, sir, as to this point, that the letter of the Secretary of State to Mr. Turreau, of the 18th of December last, will be considered as conclusive. In this letter, the Secretary, speaking of the enormous duties which have been mentioned, observes: "If, then, for the revoked decrees, municipal laws, producing the same commercial effect, have been substituted; the mode only, and not the measure, have undergone an alteration." To my mind, sir, this insidious, this perfidious conduct, on the part of Napoleon, is infinitely more base, and merits the indignation of the American people infinitely more than would an open refusal to revoke the obnoxious decrees. It is an attempt, if I may be allowed the expression, to gull and deceive us, by an artful, intriguing policy, which ought to excite our jealousy, and rouse our highest resentments. I trust, sir, I have fairly shown that our faith is not plighted, that we are under no obligations to Napoleon. If in this I am correct, then the passage of the present bill is a mere question of policy and interest. It would be a mere waste of time to attempt, by a reference to the past evils which have resulted from this restrictive system, to show the impolicy of its continuance. The bad effects already produced are but too well known. This, sir, is the favorable moment to erase it from your statute books; the policy and interest of the nation require it. Let us examine, for a moment, the consequences of its continuance. Do you believe, sir, that your merchants, a great portion of whose property has been seized by foreign nations, when the remnant of their vessels, which have escaped, shall, upon entering your own ports, be seized by your own custom-house officers, that they will be satisfied to lose the remainder of their property, in pursuance of your own laws? They will think it hard enough, that millions of their property have been seized by France, by Denmark, and by Sweden, without having the remainder seized on their return, and confiscated by their own Government. Surely, sir, they will require strong evidence of the fact that your faith is plighted to France, before they will be satisfied with the measure you are about to adopt. Mr. Speaker, I am not the Representative of merchants; I feel no peculiar interest in their favor, but I consider them a useful class of citizens; their interests are closely connected with the interests of your farmers; and, in this point of view, they are at least entitled to notice. Hitherto, your merchants have been noted for their fairness, and for the respect they have paid to your revenue laws. But, sir, after having their property plundered by France, by Denmark, and Sweden, will they not, when they learn that from a scrupulous regard to your faith plighted to France, a faith, however, which has no existence, you seize, with a few exceptions, all which return; will they not, I repeat it, endeavor to land their cargoes so as to escape the vigilance of your officers? Have you no apprehension that, when they have once learnt the art of smuggling to save their property from seizure and confiscation, they will afterwards practise it, to avoid the payment of duties? I fear that this system will have a tendency to corrupt the morals of your merchants, and from them it will extend throughout the country. WEDNESDAY, February 27. The House formed a quorum at half-past ten o'clock. Mr. GOLD.--Mr. Speaker, at a period when the civilized world is convulsed by continued war, to its centre; when the European continent is exhibiting the marks of ruthless conquest, and is threatened with all that barbarism, with which Attila, with his invading hordes, overwhelmed the Roman world, it becomes the Councils of this nation to move with cautious steps on the theatre of our foreign relations; to move, sir, with a fixed eye on the great law of neutrality, and yield an implicit obedience to its high injunctions. It eminently becomes, sir, the Government of this country, in all our concerns with the belligerents of Europe, to carry an even hand, to manifest to both a fair, impartial, and equal conduct. Without such a course, the consequences to our peace and prosperity, from the jealousy and violence of warring nations, are inevitable, and, with it, we can hardly promise ourselves exemption from aggressions and spoliation; such and so destructive is the spirit of the times. Need I, sir, to excite caution in legislation, refer the House to the consequences of the non-intercourse act of the 1st of March, 1809; for, however free from all exception from the belligerents was that act, yet France, in the wantonness of power, made it the pretext for the exercise of the rigorous right of reprisal by an additional decree, which, with the preceding, have, like the besom of destruction, swept our property from the ocean. It was on that act, that the Rambouillet decree of the 23d of March last, was founded for its sole justification; and so do the very terms of the decree, shameful and disgraceful as it is, import. In reviewing the proceedings of our Government under the act of the 1st of May last, (the act upon which the President's proclamation for a non-importation with Great Britain is founded,) permit me, sir, to ask if the spirit of a fair and impartial neutrality, so eminently necessary in the critical situation of the United States, has guided our proceedings with the respective belligerents? By this act, if either of the belligerents rescinded its edicts, violating our neutral rights, the non-intercourse act was to be put in force against the other refusing to rescind, and the President, by proclamation, was to declare such fact of rescinding. Under this provision, sir, the President substituted a prospective engagement for a fact done; a promise for a performance; the future for the past, and hence, sir, have resulted our present difficulties; that crisis which bears so hard upon the American people. It is not, sir, my object to impeach the motives of the President in this ill-fated proceeding; I am to presume a love of country guided him; but it is impossible not to see in the measure a course indulgent to France, a construction upon the letter of the Duke de Cadore, of the 5th of August last, (touching the revocation of the decrees of Berlin and Milan,) the most favorable and advantageous to that country, and offensive to Great Britain. For, sir, notwithstanding the above proclamation, the noon-day sun is not plainer than that those decrees are not revoked; nor indeed, sir, will they, in my opinion, ever be revoked under the above act. The utmost extent of our hopes, from the last despatches transmitting the official communication of the twenty-fifth of December last, from the Grand Judge Massa, and the Minister of Finance, Gaete, is, that our vessels (with their cargoes) seized in the ports of France since the first of November, in violation of the stipulation of the above letter of the 5th of August, and of all that is holden sacred among nations, may be at some future day, under some new and embarrassing conditions, flowing from the policy of Napoleon, restored to our suffering citizens. By the last paragraph of the above letter of the Minister of the Finances, it would seem that the Emperor and King has shut his eyes upon past engagements, and referred all that concerns us to the second day of February, when new toils are to be spread, as is to be presumed, for the unsuspecting, credulous, and confiding American merchant and navigator. Against the mass of evidence, that the French decrees are not revoked--evidence which is increased by the melancholy advices of every east wind--the honorable member (Mr. RHEA) from Tennessee, refers us to the President's proclamation, as a foundation for our faith in the repeal of the decrees to rest on; this is evidence indeed of things not seen. As well might the trembling mariner look to his almanac for the state of the weather at the moment the pitiless tempest is beating upon him, and his vessel is sinking under the shock of the elements. Whatever ground of hope or belief in the good faith of France existed at the time of issuing the proclamation, subsequent events have removed those grounds from under our feet, and blasted all our hopes; the wily policy of the French Court stands confessed; the Emperor loves but to chasten; he seduces but to destroy. While the indulgent course, the favorable interpretation of the letter of Cadore of the 5th of August above mentioned, was adopted by the Cabinet towards France; was a similar temper and disposition manifested in relation to Great Britain? I fear, sir, this part of the case will not well bear scrutiny. That the Orders in Council, and not the doctrine of blockade, were the objects of the act of the 1st of May, in relation to Great Britain, not only the debates of the period, but the recollection of every member of this House, will bear me out in asserting. That mere cruising blockades, and every other blockade not supported by an actual investing force, is unwarranted by the laws of nations, is my clear conviction; it is the result of examination and reflection on the subject; but unfounded in public law as is the doctrine set up by Great Britain, its abandonment or modification can only be expected from treaty, and not by an isolated declaration at the threshold, under the threat of a specific alternative. The Orders in Council being removed, the blockade of May, 1806, would have been little more than nominal; why then was it insisted on as indispensable, under the above act? Through a strange fatality, something, inconsiderable in itself, is always found in our demands upon Great Britain, to bar a settlement. But, Mr. Speaker, what is calculated much more to put in jeopardy the neutral character of our Government is the bill on the table. While all is uncertainty and embarrassment with France; while her decrees remain merely suspended and not revoked; while your merchants, trusting to the plighted faith of the Emperor, have been drawn into the French ports and there betrayed and sacrificed; while commerce is bleeding at every pore under the merciless gripe of Napoleon, we are called on to go farther to conciliate France, than she was entitled to, had she faithfully revoked her decrees. Upon revoking his decrees, the Emperor was entitled to have the act of the 1st of May carried into effect against Great Britain, and he was entitled to no more. Such, sir, is the precise condition imposed on the United States by the letter of the Duke de Cadore, of the 5th of August, and this is the whole extent of the requirement. Upon what ground, then, sir, is it that we are called on to pass this additional non-importation act against Great Britain? If France has revoked her decrees, is not a non-importation with Great Britain inevitable, and does it not exist? But I will put the key to the door; let us not dissemble; France has not revoked, and for that cause and that alone, has the question arisen, whether there be at this time a legal non-importation with Great Britain. If, sir, there be any other difficulty, in the way of a non-importation with Great Britain; if there does exist any other possible obstacle, let the advocates of the bill name that obstacle. I make the appeal to gentlemen, I demand of the chairman of the committee who reported this bill, why and wherefore it is presented? France has failed to revoke her decrees, and as such revocation was, under the act of the first of May, a prerequisite to non-importation with Great Britain, such non-importation must fall, unless this additional act in favor of France is passed. This, sir, is the whole length and breadth of the case; and on no other ground can this disastrous measure be placed. If France revoked her decrees, she was entitled to a non-importation against Great Britain, and if she failed to revoke, what? The bill gives the answer--she is equally entitled; so that, do what France may do, the end must be a non-importation with England. Such, sir, is the logic of your bill; such the impartiality towards the belligerents; such and so barefaced the subversion of the great principle of the act of May last. The principle of the act of May was just and equal; our offers to Great Britain and France were the same, and the result, in case of refusal, alike to both. France met the offer by the famous letter of Cadore, of the 5th of August; in which, with more than conjurer's skill, this disciple of the Jesuits brought together and united both present and future; he revoked and did not revoke; he gave up the decrees and yet retained their operation or effects; he made the revocation both absolute and conditional; absolute for obtaining the President's proclamation, conditional for the purpose of eluding performance; absolute for drawing our property within his clutches, conditional for retaining it, to fill his coffers and fatten his minions; in fine, sir, the letter was one thing, or another thing, or nothing at all, as artifice might suggest or future events render necessary. But, sir, the most copious source of error that I have witnessed during the various debates upon the proceedings under the act of the 1st of May, is found in the extent of the Berlin and Milan decrees. The gentlemen who have commenced their career of conciliation with France, treated those decrees as operating only on the narrow ground of direct commerce between the United States and Great Britain and on our vessels to other ports which have submitted to British search; hence the effort to justify the late seizures of our vessels in France, upon grounds consistent with the repeal of those decrees, as being laden with British colonial produce, &c. But, sir, this cannot avail or give the least color to the pretence of a repeal. The Berlin decree (that decree which emanated from the French Emperor at the capital of prostrate Prussia, where he sat like Marius over the ruins of Carthage) contains ten distinct articles; the 6th and 7th prohibit all trade in British merchandise, and, the more effectually to close all the avenues to the continent, exclude from the continental ports all vessels coming from Great Britain or her colonies, or that shall have visited the colonies after the date of the decree. The Duke de Cadore, by the above letter of the 5th of August, pledged the Emperor, his master, for the entire repeal of this decree without any reservation. Had this pledge been faithfully redeemed; had such repeal been had with good faith, it would have subverted the whole continental system and removed all difficulty both between the United States and France, and between us and Great Britain, as it must have produced the actual result required by Great Britain, in restoring the commerce of the world to that state it was in at the promulgation of the decrees. Although the above decrees partake of municipal as well as external regulation, yet the French Emperor, foreseeing that Great Britain would not relinquish the ground taken while the continental system, so hostile to her commercial interests, was continued, and yielding for a moment, as is supposed, to the groans of subjugated States, stipulated by the above letter for a relinquishment of his system by an entire repeal of those decrees. Let me repeat, sir, had France proved faithful to her engagements, the United States would at this moment have had a prosperous commerce with Europe, and the present state of things is fairly imputable to the Emperor, with whom that bill on your table invites us to proclaim "all is well." I look about me, sir, with emotions of concern and anxiety to find a ground on which to justify the course adopted by this bill towards the belligerents. The peace, the reputation, and honor of my country are concerned. While the great principles of justice and fair neutrality shall be our landmarks and guide, come what may, fall when we may, we shall stand justified to the world, and what is of more consequence, we shall have the support of our own consciences; the sweet and consoling reflection, that we stand clear of fault and deserve a better fate. This bill will not give the United States this high and enviable condition. Mr. PEARSON.--It is but seldom, Mr. Speaker, I address you, especially on subjects of the nature and importance of that which is now under discussion. Perhaps on this account, I may not be the less entitled to your indulgence and the attention of this assembly. Being opposed to the principles of this bill, and having no confidence in the reasons or pretences by which it is attempted to be justified, I shall not trouble you with an exposition of its particular details, however novel, arbitrary, and impolitic they may appear. The bill proposes substantially a revival of that system of commercial restrictions, under which the people of our country have so long and severely suffered. It substantially denies all intercourse with Great Britain and her colonies, by excluding from our ports British vessels of every description, and the products and manufactures of that nation of every kind, and to whomsoever they belong; while at the same time, every possible indulgence is granted to France--her vessels, armed and unarmed, her products and those of the nations which she has subjugated, find no restraint from us. Here let me remark, that to those two contending powers, whenever their interest, or the interests of either of them come in contact with the interests of my own country, I feel no preference, I make no discrimination; my first best wishes ever are at home. I now solemnly appeal to gentlemen, why shall we, at this moment, make this marked distinction? Why shall we take this hostile attitude against Great Britain, and open our arms to the embrace of France--when, by doing so, we must inevitably afflict our own people, and depart from that character of neutrality, which has been the alleged boast of the present and late Administration; and which alone has afforded those in power an apology with the people for those wild schemes of policy, with which their course has been but too plainly marked, and that accumulated distress which every man has seen, and every honest man has felt? Can it be because Bonaparte has said he loves the Americans? I, sir, know no other cause. I know it has been said on this floor, and said too by the honorable gentleman who reported this bill, and his honorable colleague, (Mr. GHOLSON,) that the Berlin and Milan decrees are revoked; and, in compliance with the law of the late session of Congress, the faith of this nation is pledged to Bonaparte, for the due execution of that law against Great Britain. To those opinions my understanding cannot assent--the obligation to Bonaparte I neither feel nor believe. That none such exist will not, in my opinion, be difficult to prove. For a fair understanding of this question, it becomes necessary to apply to the law of May, 1810. On that law and the proceedings which have been subsequently adopted by this Government and France, must the propriety of the present measures be justified or condemned. The act alluded to, in substance, declares: "That in case either Great Britain or France shall, before the 3d day of March next, so revoke or modify her edicts, that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not, within three months thereafter, so revoke or modify her edicts in like manner, the restrictive provisions of the law of 1809 are to be revived and have full force and effect against the nation so refusing or neglecting to revoke or modify," &c., and the restrictions imposed by the act, are from the date of such proclamation, to cease and be discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid. The emphatic words of this law are, so revoke or modify, as that they cease to violate, &c. Here is a positive, unconditional, indispensable prerequisite, to be complied with before the President was authorized to exercise the power given to him; a specific fact was to exist, and he was empowered simply to make its existence known to the nation; no discretion was allowed; nothing left to doubtful construction--no conditional promissory note of a perfidious agent, of a more perfidious master, was contemplated by the law. The great question now is, does the fact on which the proclamation was alone to issue, and on which its legitimacy solely depends, exist, or does it not? The very doubt ought to decide the question--the burden of proof unquestionably ought to rest on those who call on us to pass this law; and in their own language, execute the contract, and violate not the faith so solemnly plighted to "Napoleon the Great"--unfortunately the evidence on which they rely disproves the fact, and we are enabled to do what can seldom be done, and ought never to be required--prove a negative. The letter of the Duke de Cadore, of the 5th August, 1810, the proclamation of the 2d of November, and Mr. Pinkney's diplomatic special pleading in his letter to the Secretary of State, of the 10th of December, constitute the whole burden of proof upon which the advocates of this bill rest their defence, and the evidence of the fact on which alone it can be justified. I have stated the law, and what I conceive to be its obligations on the President and ourselves. It will now be proper to take a correct view of this famous letter of the Duc de Cadore of the 5th August, this honeyed charm, which has seduced us into a labyrinth, from whose gloomy cells and devious windings we are, I fear, not soon to be extricated. This letter, which contains but one sentence of plain truth, viz: "That the Emperor applauded the general embargo laid by the United States"--after asserting the most palpable falsehood, by denying that the Emperor had knowledge of our law of March, 1809, until very lately, and justifying the seizure and condemnation of all American property which had entered, not only the ports of France, but those of Spain, Naples and Holland, dating from the 20th of May, 1809; and declaring that reprisal was a right commanded by the dignity of France, a circumstance on which it was impossible to make a compromise--the letter proceeds: "Now Congress retrace their steps, they revoke the act of the first of March, the ports of America are open to French commerce, and France is no longer interdicted to the Americans. In short, Congress engages to oppose itself to that one of the belligerent powers which should refuse to acknowledge the rights of neutrals. In this new state of things, I am authorized to declare to you, sir, that the decrees of Berlin and Milan are revoked, and that after the first of November they will cease to have effect; it being understood, that in consequence of this declaration, (remark, Mr. Speaker, this declaration, not this fact,) the English shall revoke their Orders in Council, and renounce the new principles of blockade, which they have wished to establish, or that the United States, conformable to the act you have just communicated, shall cause their rights to be respected by the English"--then follows in sweet accents His Majesty's declaration of love for the Americans, his solicitude for our prosperity, and the glory of France. This is the gilded pill, in which lurks a most deadly venom, and which if we swallow, I fear all the political quackery of the nation cannot save us. On this letter, gentlemen rely for the revocation of the French edicts, and the freedom of our commerce with France. Allowing the most favorable construction to this letter, and abstracting it from circumstances and facts both before and after its date, it will not bear gentlemen out in their conclusion; it does not satisfy your law, and did not warrant the state of things which has been and is about to be produced. Instead of an existing and determined fact, we have a promise, and that too clogged with conditions, which it was well known to the Emperor would not or could not be complied with to the extent required by him. The conditions which depended on Great Britain, he knew, never would be yielded, and that which depended on ourselves was nothing short of war with England or our own citizens, by oppressing them with a perpetual embargo. Instead of an authenticated act of revocation, bearing the authority of the most ordinary law or edict of the French Empire, we have nothing but a letter from the agent of the Government, and which the Emperor may disavow at pleasure--as was done in the case of the Minister of Marine, in his explanations to General Armstrong of the intended operation of the Berlin decree--instead of the restoration of the immense amount of American property, of which your citizens have been most cruelly and unjustly robbed by this fell monster of the age--and which the President declared, through the Secretary of State, in letters to General Armstrong of the 5th of June and July, must precede an arrangement with France, and was an indispensable evidence of the just purpose of France towards the United States; instead of having forty or fifty millions' worth of our property restored, we are vauntingly told, that the property was confiscated as a measure of reprisal, that the principles of reprisal must be the law in that affair, and that a compromise would be inconsistent with the dignity of France--the plain English of which is, we have the property and we will keep it. Mr. Speaker, are we to be thus amused? Common honor and common sense revolt at the idea. An honorable gentleman from South Carolina, (Mr. CHEVES,) whom I am very much inclined to respect, in an ingenious argument which he made the other day, to prove that the French decrees were revoked, told you that the _revocation_ of those decrees depended on the mere _volition_ of the mind of the Emperor, not requiring authentication or form; and although they might be revived the next moment, or substituted by other regulations equally affecting our neutral rights, still they were revoked. Thus attributing an authority to Bonaparte, descriptive of the power of the God of nature--when he said, let there be light and there was light. And in reply to the gentleman from Massachusetts, (Mr. QUINCY,) who contended that _form_ was essential to the repeal of a decree, he remarked that the gentleman wanted _form_ and not substance. From this course of reasoning, I conceive the gentleman has admitted, that this pretended revocation has neither form nor substance. An edict may be defined to be a law promulgated in such form as the institutions of the country require, or some act of sovereign authority, which has gone through the established forms of office, so as to become obligatory. The edicts of France have an appropriate form, their authority is attested by the Emperor and publicity is given, for the direction of those whose duty it is to carry them into effect. Sir, the decree of the most absolute monarch on earth is no decree till it is published. I contend that a _revocation_ or modification of an edict requires the same or equal solemnities with its enactment; the _fact_ must exist and be officially made known before it becomes obligatory--no declaration of an intention to revoke, can constitute an actual revocation. The act ought not only to be determined and public, but susceptible of authentication, and capable of being communicated to the nation and the world. This opinion, if it needs authority, is supported by the instructions of the Secretary of State to our Ministers at Paris and London, of the 5th July. Mr. Pinkney is directed in these words--"If the British Government should accede to the overture contained in the act of Congress, by repealing or so modifying its edicts, as that they will cease to violate our neutral rights, you will transmit the repeal, properly authenticated, to General Armstrong, and if necessary, by a special messenger, and you will hasten to transmit it also to this Department--similar directions are given to General Armstrong." Will it for a moment be contended, that the formal _authentication_ required by the Administration, could mean a Jesuitical, insolent, equivocal, conditional letter, full of sound, and meaning nothing for our good? But, say gentlemen, the President received the evidence and issued his proclamation. This is true; but why has he done so, and how justified by the law under which alone he was authorized to act, is, to my mind, perfectly inexplicable; why, in the course of this arrangement with France, he has varied the ground which he first took--why dispensed with requisites at one time declared indispensable--why he advanced in exactions from Great Britain in proportion as he receded from demands on France, is left for himself and those who have more wisdom than myself, to determine. I trust, sir, I have a proper share of confidence in the Executive, and have no disposition to detract from his merit; but he is only man, and therefore subject to the frailties man is heir to. We have as yet no such maxim among us, as that the Executive is infallible--he can do no wrong. Whatever may be the disposition of other gentlemen, I am as yet too free, too much of a genuine _Republican_ to subscribe to such a doctrine. I said, sir, that in the course of this arrangement with France, the Administration advanced in their demands on Great Britain and receded as to France. I argue from the documents, which accompanied the President's Message at the opening of the present session of Congress. The first letter in the documents from the Secretary of State to Mr. Pinkney, of the 20th January, 1810, does not contain a word on the subject of blockades--on the contrary, the Orders in Council are alone required to be repealed, as preparatory to a treaty with Great Britain; and the British Government are assured of the cordial disposition "of the President to exercise any power with which he may be invested, to put an end to acts of Congress which would not be resorted to but for the Orders in Council, and at the same time of his determination to put them in force against France, in case her decrees should not also be repealed." His letter of the 4th of May, which was the first after passing the act of the 1st of May last, that enclosed a copy of that act, is not published. On the 22d of May, another letter is sent enclosing a second copy of the act of Congress, in which there is not to be found any requisition of a repeal of the blockade which is now made a _sine qua non_ to an arrangement with Great Britain. But on the 2d of July, after the arrival of the John Adams, which brought the correspondence between our Ministers at Paris and London, and the Agents of the British and French Governments, on the subject of the repeal of their several orders and decrees; and when it was known that the British Government would not abandon her system of blockade and adopt the principles contended for by France--in this letter, I say, is contained not only a demand of the repeal of the Orders in Council, but also of the blockading order of May, 1806. I have already shown, from the letters before me, of the 5th June and July, that the restoration of the property of our citizens, confiscated by the order of Bonaparte, was declared by the Executive as an indispensable prerequisite to an arrangement with the French Government. But the proclamation of the President has been issued without a cent of property being restored; nor is there the most distant prospect of our regaining a shilling from his iron grasp. Thus have the Administration changed the ground first taken, increased the demands on Great Britain, and abandoned what was deemed indispensable on the part of France. So conscious was the President of the just expectation of the people of this country, that provision would be made for the restoration of their property, he informs Mr. Armstrong on the 2d of November, the day the proclamation was issued, that "in issuing the proclamation it has been presumed, that the requisition on the subject of the sequestered property will have been complied with." From what this presumption arose, I am at a loss to say--the letter of the Duc de Cadore to General Armstrong, of the 12th September, had been received here; we had been told there would be no compromise; the law of _reprisal_ must govern. Sir, the law of reprisal, as recognized by the laws of nations, could never have authorized the seizure. Reprisals can only be resorted to in case of an act of hostility committed by one nation on the property or citizens of another, and after compensation for the injury has been demanded and refused; and even in that case, the property taken is to be held only in _pledge_, till satisfaction is made by the offending nation. The moment that confiscation takes place the principle of reprisal ceases and it becomes an act of war. We had done no injury to France; we had violated neither the rights of the persons or property of her subjects--no demand of indemnity was ever made; not a complaint whispered, till nearly twelve months after the passing of the law, (and after its expiration too,) which is made the pretext for this monstrous outrage. The law of reprisal had nothing to do with the affair, and the confiscation of our property excludes the idea of restoration. I confess I was astonished, and felt humbled as an American, when I heard the language of the President of the United States, in his Message to Congress at the opening of the present session on this subject. Instead of that high indignant tone, demanded by the honor and feelings of the nation, he, in the mildness of calm philosophy, says, "It was particularly anticipated that as a further evidence of just dispositions towards them, restoration would have been immediately made of the property" of our citizens, seized under a _misapplication of the principles of reprisals_, and a misconstruction of a law of the United States. This expectation has not been fulfilled. Thus the question as to the restoration seems to be abandoned; one kind, loving word from Napoleon the Great, (as he has been triumphantly called in this House,) this modern Alexander (without his virtues, with all his faults) disarms us of our rage, and we give millions for his embrace. Mr. Speaker, the chairman of the committee (Mr. EPPES) who reported the bill, in reply to the very able speech of a gentleman from New York (Mr. EMOTT) who addressed you in the early stage of this discussion, appeared to me rather to question the purity of the source from which they came, than to have answered the arguments of that gentleman. This mode of reasoning may answer the purposes of gentlemen, but is surely unfavorable to fair investigation; it tends to abridge the freedom of debate, and prevent that firm, decisive, and candid exposition of those measures, which we conceive may vitally affect the happiness of the people. This is a privilege and a duty which I shall ever regard and ever perform. The same gentleman (Mr. EPPES) and several others, have reminded us of the arrangement made with Mr. Erskine; and offer it as a precedent for the justification of the President's proclamation and this bill, (which are substantially one and the same thing.) I had supposed that that unfortunate arrangement would have been kept out of sight by gentlemen on the other side of the House. It was to have been expected they would carefully avoid an attempt to make one bad precedent justify another; they must have forgotten how that arrangement militates against the proclamation, and the demand which is now so positively made of a revocation by Great Britain of her order of blockade of May, 1806. That arrangement, almost dictated by the Administration, and which was perfectly satisfactory to us all, did not contain one syllable, not the most distant information, relative to the repeal of that order, which now appears to excite so highly the indignation of gentlemen, and has been magnified into a cause of war. The order of blockade was at that time more recent, and if so injurious as now alleged, could not have escaped the attention of the Executive, and his vigilant Cabinet, when they were providing for the annulment of the Orders in Council of January and November, 1807. That arrangement was made without requiring a repeal of the blockade--now nothing can be done without a repeal, and thus we are to be blockaded both at home and abroad. It may be further remarked, that by the law of February, 1808, the President was authorized to suspend the embargo as to France or Great Britain, on the same conditions pointed out by the act of May, 1810. In the exercise of that power, the President instructed Mr. Pinkney to propose to the British Government a repeal of the embargo as to that nation, and its continuation against France, if the Orders in Council of January and November, 1807, should be rescinded. At that time nothing was said, no demand was made, not even a proposition offered on the subject of the blockade in question. My attention, sir, has been somewhat drawn to this part of the subject by the importance which has been given to it in the document before me, and the arguments of gentlemen of this House, particularly the gentleman from Virginia, (Mr. EPPES,) who said much on this subject the other day, in answer to arguments which the gentleman from New York (Mr. EMOTT) did not make. He reiterated last night that his arguments were unanswered and unanswerable. I do not profess, sir, to be perfectly acquainted with the practical extent of the order of blockade of May, 1806, nor do I know the precise quantum of injury we have sustained by it, nor am I to be understood as attempting its justification--I should be the last to concede any principle or any right to which my country has a claim. But, sir, I am compelled to believe, that an artificial importance is at this moment given to the subject, which it has not received at any other period since the adoption of that regulation by the British Government. I have already shown that, in the negotiation of 1808, and in the arrangement with Mr. Erskine, the question was not even made a matter of contestation; and, sir, from an examination of the Executive papers, from the date of the order of the blockade, down to the present session of Congress, I have not been able to discover a single paper remonstrating against the order, or insisting on its revocation, nor do I know of a single case of the condemnation of an American vessel under its operation. On the contrary, at the time of its adoption, (during the administration of Mr. Fox, who was believed to be as friendly disposed towards us, as any man who ever administered the affairs of the British Cabinet,) this measure was spoken of by our Minister at London (Mr. Monroe) as a relaxation favorable to neutral commerce. It may not be improper to refer to the order itself, as communicated by Mr. Fox to Mr. Monroe, on the 16th of May, 1806; after the preamble this note states "that the King, taking into consideration the new and extraordinary means resorted to by the enemy for the purpose of distressing the commerce of his subjects, has thought fit to direct that necessary measures should be taken for the blockade of the coast, rivers, and ports, from the river Elbe to the port of Brest, both inclusive; and the said coast, rivers, and ports, are, and must be considered, as blockaded. But His Majesty is pleased to declare, that such blockade shall not extend to prevent neutral ships and vessels, laden with goods not being the property of His Majesty's enemies, and not being contraband of war, from approaching the said coasts and entering into and sailing from the rivers and ports, (save and except the coast, rivers, and ports, from Ostend to the river Seine, already in a state of strict and rigorous blockade, and which are to be considered as continued,) provided the said ships and vessels so approaching and entering (except as aforesaid,) shall not have been laden at any port belonging to, or in possession of, His Majesty's enemies, and that the said ships and vessels so sailing from the said rivers and ports, (except as aforesaid) shall not be destined to any port belonging to, or in possession of His Majesty's enemies, nor have previously broken the blockade." This order, then, only excludes from those ports vessels having enemies' property on board or articles contraband of war, in both of which cases they are liable to seizure by the law of nations, at least it has been long contended for on the part of Britain; it also prevents the direct carrying trade from one port to another of an enemy. If this latter extension is not recognized by the law of nations, it is generally the subject of treaty, and was provided for by our treaty with the British Government, and the late convention formed by Mr. Monroe with the British Government, but which was rejected principally because Great Britain required us not to submit to the Berlin decree--a requisition, sir, infinitely short of what we are now to comply with, at the dictation of France--by which colonial produce was required to be relanded in the United States before it would be admitted into the ports of the continent. By this order, _bona fide_ neutral vessels, with neutral produce, sailing from our own country, never were affected. The gentleman from Virginia (Mr. EPPES) has said this order of blockade has not a single feature of a regular blockade; in this, the gentleman is tolerably correct, and when he denounces, what in the fashionable cant of the day are called paper blockades, I join most heartily in the execration. It is true this order of May, 1806, has scarcely a feature of a regular blockade. It was not avowed at the time to be even a constructive blockade, nor was the right contended for of blockading without an actual investing force. It does not, like ordinary blockades, attempt a complete prohibition to all trade with those ports, but only to the particular objects and specified cases which I have mentioned. The previous measures of France are declared by Mr. Fox to be the cause of this order. What were those measures? They were no less, as regards ourselves, than a violation of the treaty which had been solemnly entered into between this country and France; by harassing our trade, seizing and confiscating our vessels in pursuing the commerce guaranteed to us by that treaty; she had usurped authority in almost every port and city from Elbe to Brest, and excluded the introduction of British products and merchandise, whether belonging to American citizens or British subjects. Now, sir, let me state to you the language of our Minister (Mr. Monroe) at the time this order was issued. In his letter of the 17th of May, to the Secretary of State, speaking of the order, he says, "the note is couched in terms of restraint, and professes to extend the blockade further than it has heretofore done, nevertheless it takes it from many ports already blockaded, indeed all east of Ostend and west of the Seine, except in articles contraband of war and enemy's property, which are seizable without blockade; and in like form of exception, considering every enemy as one power, it admits the trade of neutrals within the same limits to be free, in the productions of enemy's colonies, in every but the direct route between the colony and parent country. "It cannot be doubted but the note was drawn by the Government in reference to the question, and if intended by the Cabinet as a foundation on which Mr. Fox is authorized to form a treaty, and obtained by him for the purpose, it must be viewed in a very favorable light; it seems clearly to put an end to further seizures, on the principle which has heretofore been in contestation." This view of the subject, which surely is a fair one connected with the silence of the Administration for four years, must put an end to the clamor so often raised against this order, which has been the alleged cause of the Berlin decree, and charge against Great Britain, of having been the first aggressor on our neutral rights. Sir, we have indeed been insulted, injured, and abused by both nations, to an extent which would justify any measures in our power, but let us not palliate the crimes of one, and magnify those of the other; and, above all, let us not whip ourselves because they will not respect us; let us not become so Quixotic, as to act the part of a famous knight in the tales of chivalry, who tortured himself because his mistress would not be kind. Mr. Speaker, as the arrangement with Mr. Erskine has been often mentioned, and much relied on by the advocates of this bill, it deserves some further notice. That arrangement was the first act of the present Executive, after he came into office; it was presumed to have been fairly and properly made--it was hailed as a political jubilee by all denominations of politicians--particularly those who had not contributed to the elevation of the present Chief Magistrate; we thought we perceived in that event the evidence of a disposition in the present Executive (which we could not discover in his predecessor) to relieve this country from that system of commercial restriction, that self-destroying policy, which had made us poor indeed; we also thought a determination was manifested not to decline any advantageous accommodation with Great Britain, whether France said yea or nay. It will be but too well remembered that we had been groaning for two years under the pressure of non-importation, embargo, and non-intercourse--your treasury was drained, your citizens unable to pay their debts, and your courts of justice actually shut up, at least so far in many States (and among the rest the State which I have the honor in part to represent) as to suspend the effect of executions; your cities and seaports were inactive or deserted; gloom and dismay marked the features of the nation, and hope had almost bid us farewell; we fancied in this arrangement the glimmerings of returning sunshine, peace, and prosperity: with honest and upright hearts, we were willing to applaud the hand that gave it, without questioning or suspecting the manner or motives with which it was given. The delusion soon vanished; and I have no hesitation to declare, had I then known what I now know, I should have not offered such unqualified applause. Mr. Speaker, let us make a very strange and very false supposition, that the Berlin and Milan decrees were actually repealed, and did cease to have effect on the first of November. What have we gained? What advantage have we derived from it? And have we not been officially informed by the French Minister in this city (General Turreau) in his letter to the Secretary of State, of the 12th December, 1810, that our most valuable productions, particularly of the Southern States, are at this moment excluded from the ports of France? As to the important articles, cotton and tobacco, he says: "their importation into France is at this moment especially prohibited, but I have reasons to believe (and I pray you meanwhile to observe, sir, they do not rest on any facts) that some modifications will be given to this absolute exclusion. These modifications will not depend on the chance of events, but will be the result of other measures, firm and pursued with perseverance, which the two Governments will continue to adopt to withdraw from the monopoly and from the vexations of the common enemy a commerce loyal and necessary to France as well as the United States." In this letter we find the touchstone, the true clue to French favor--war with England. Connected with this letter from Turreau, is a decree of the 16th July, 1810, which, in point of principle and arrogance, is not surpassed by any act in the history of Bonaparte. By this decree thirty or forty American vessels may import into France, under license, cotton, fish, oil, dye-wood, salt-fish, codfish, and peltry; they must export wine, brandy, silks, linens, cloths, jewellery, household furniture, and other manufactured articles; they can only depart from Charleston and New York, under the obligation of bringing with them a gazette of the day of their departure, also a certificate of the origin of the merchandise, given by the French Consul, containing a sentence in cypher. The French merchants who shall cause their vessels to come, must prove that they are concerned in the fabrics of Paris, Rouen, and other towns. Here is an attempt to extend French influence by bribing a select class of our merchants; granting favors to favorites. It is an attempt to make commercial regulations in our own ports, and to violate our constitution, by giving a preference to the ports of Charleston and New York, over all the rest in the United States, which is specially denied by the constitution. In addition to all this, we have a list of duties established at the French custom-house on the 5th August (the very day on which twenty or thirty American vessels and cargoes were sold and the proceeds given over to Bonaparte--the very memorable 5th August, the birthday of the celebrated letter of the Duc de Cadore) subjecting long staple cotton to a tariff of eighty cents per pound, short staple sixty cents, and tobacco forty cents per pound. By another decree of the 12th September, 1810, potash is taxed at one dollar twenty-five cents, codfish two dollars, rice four dollars per hundred--thus are we loved, favored, and taxed. There can be no importation of American productions into France but on terms utterly inadmissible. The act of May last, in the language of the Secretary of State, had for its object not merely the recognition of a "speculative," legitimate principle, but the enjoyment of a substantial benefit. The overture then presented obviously embraced the idea of commercial advantage, it included the reasonable belief, that an abrogation of the Berlin and Milan decrees would leave the ports of France as free for the introduction of the produce of the United States, as they were previously to the promulgation of the decrees. If, then, for the revoked decrees, municipal laws, producing the same effect have been substituted, the mode only and not the measure has undergone an alteration. If France, by her own acts, has blocked up her ports against the introduction of the products of the United States, what motive has the Government in a discussion with a third power, to insist on the privilege of going to France? Whence the inducement to urge the annulment of a blockade of France, when, if annulled, no American cargoes would obtain a market in any of her ports? In such a state of things, a blockade of the coast of France would be to the United States as unimportant as would the blockade of the Caspian Sea. This is the language of truth and common sense, language which I did not very much expect to hear from the Secretary at this time; because it exposes the proclamation of the President, and condemns the present bill. But truth, like murder, will out, and it ought to strike dumb the advocates of this bill, and open their eyes to a different policy. But, sir, going on to the supposition that the French decrees are actually repealed, and cease to have effect, pursuing the principle about to be established of taking words for deeds, and form for substance, what is to become of the promise of Lord Wellesley to Mr. Pinkney, of the 31st of August, 1810, when he states that he is commanded by his Majesty to repeat the declaration made to this Government in February, 1808, of his Majesty's desire to see the commerce of the world restored to that freedom which is necessary for its prosperity, and his readiness to abandon the system which had been forced upon him, whenever the enemy should retract the principles which had rendered it necessary; and to assure us that whenever the repeal of the French decrees shall have actually taken effect, and the commerce of the neutral nations shall have been restored to the condition in which it stood previously to the promulgation of those decrees, he will feel the highest satisfaction in relinquishing a system which the conduct of the enemy compelled him to adopt. Here is a promise equally solemn, (and as there is at least as much virtue in the British Government as there is in that of France,) as much to be relied on as that of the Duc de Cadore; and as certainly as the Berlin and Milan decrees were revoked, and would cease to have effect on the first of November, so certainly have we the same assurance that the orders of Great Britain would be rescinded. Shall we then believe the one and not the other? Shall we frown and look big at England, while, with timid and abject submission, we crouch at the feet of France, and quietly rivet the chains prepared for us? Mr. Speaker, the goddess of justice has been described as being blind, with sword in one hand, and the scale and balance in the other, but if she is invoked in this measure, she comes blind indeed, with a sword in one hand, but no balance in the other; in one hand is the emblem of war, in the other the badge of slavery. If war with England must happen, let it be done openly and for ourselves; let us not commence the attack by practising on our own citizens; and let it not be said we have been caught in the snares of Bonaparte. Mr. Speaker, I do not oppose this bill because it professes to give some relief to those merchants whose vessels sailed before the date of the proclamation, and which may have departed from a British port, prior to the 2d of February, 1811, but, sir, because I wish to rid the country of this whole consumptive system; and, if that cannot be done, I will not aid in propping up the President's proclamation, by taking from the judiciary of the country the power of deciding on its validity, which is one of the avowed objects of this bill. I had rather trust to the opinion of the judges for entire relief to our citizens, from the operation of the law of May, 1810, than grant the partial exemption contemplated by this bill. The honorable gentleman (Mr. EPPES) who reported this bill, declares that its great object is to prevent questions arising in the courts, on the construction of the law of May, 1810, and the effect of the President's proclamation. This, to my understanding, is legislating retrospectively; it is _ex post facto_; and, like the Rambouillet decree, is not only prospective, but retroactive. It takes from our citizens the right of appealing to the courts of justice, and makes the fiat of the Executive the supreme law--a doctrine subversive of the first principles of republicanism, and strange to be advocated by gentlemen who came into power under the name of republicans. It is in vain, Mr. Speaker, to seek for the justification of this measure from any thing France has done, or from the indications which she has given of her fixed course of policy. Her great object is the destruction of the commerce of the world; and she wishes to make us tributary to that end, and, if possible, to embroil us in a war with England. The disposition of Bonaparte towards us rests not alone on his acts of aggression, rapine, and plunder; the imprisonment of our citizens, the burning and sequestration of our property. He has heaped upon this devoted country all the epithets which malice could suggest or tyranny dictate; he has exhausted the cup of bitterness, and made us drink the dregs of humiliation; he has declared his decrees should suffer no change, and that the Americans should take the positive character of allies or enemies. As long ago as the 15th of January, 1808, he issued a declaration of war for us against Great Britain; an unconditional surrender of your rights is demanded, or an obedience to his dictates. And are we not in the act of yielding obedience? Sir, the nation which pretends to dictate laws to another offers chains. With more than Christian charity do we seem to forget and forgive the indignities offered to our national character; and the unkind, the severest cut of all to the present Administration, contained in the letter of the Duc de Cadore to General Armstrong, of the 17th of February, 1810, in which we are told that His Majesty could place no reliance on the proceedings of the United States. We are advised to tear to pieces the act of our independence; declared to be more abject than the slaves of Jamaica; that we are men without honor, energy, or just political views; that we will be obliged to fight for interest, after having refused to fight for honor. Our present rulers are there contrasted with the brave and generous heroes of our Revolution, and they are declared to be fit for the yoke which had been thrown off by their ancestors. This letter had scarcely reached our shores, the ink was scarcely dry, it was fresh in our memories, when the letter of the 5th of August was received; which, like a Lethean draught, threw the shade of oblivion over our insults and our wrongs; we sipped the poison as it fell, and I fear it is fast spreading through the body politic. Mr. Speaker, I turn with disgust from those polluted pages before me--this history of our wrongs, this tyrant's love--would to God they could be blotted from our memories; or, if remembered, let it be with abhorrence and detestation. I deprecate the course of policy, if policy it may be termed, which is now about to be forced upon us. I protest against it as a measure injurious to ourselves; weak, temporizing, and partial in its operation on foreign nations; unauthorized by the actual state of things; and calculated to hasten the period of our union with the destinies of France. Sir, unless we turn from this wayward course, this highway to ruin, the time cannot be very distant when your deserted ports, your uninhabited cities, your oppressed people, and even your firesides and your altars, will only exhibit the sad signs of what they were. And I fear, sir, the period is fast approaching when it will not again be said, "that we are a people with whom the fierce spirit of liberty is stronger than among any other people on earth; whose institutions inspire them with lofty sentiments; who do not judge of an ill principle only by an actual grievance; but who anticipate the evil, and judge of the pressure of the grievance by the badness of the principle; who snuff the approach of tyranny in every tainted breeze." When Mr. P. had concluded, the House adjourned to six o'clock this evening. _Six o'clock, P. M._ The House was called to order, and resumed the unfinished business. A motion was made by Mr. RANDOLPH to postpone the subject to Friday next, and lost--ayes 36, noes 36. A motion was then made by Mr. R. to postpone it until to-morrow. On this motion a debate, which from its nature caused irritation, took place, in which Messrs. RANDOLPH and EPPES were the principal speakers. Much warmth was excited, and frequent calls to order made. The question on postponement till to-morrow was decided by yeas and nays. For postponement, 44; against it, 74. Mr. Pitkin spoke more than an hour against the bill generally, and in support of the particular proposition which he was about to make. He contended that the Emperor of France had not fulfilled his engagement to the United States, inasmuch as the decrees, if revoked, which he denied, had not been revoked on the day on which he had engaged to revoke them. He quoted the history of the connection of Spain with France as evidence of the perfidy of Bonaparte, from whom, he said, no compliance with his promises could be expected, &c. In supporting his amendment, Mr. P. contended for its beneficial effects to our merchants: and it would not, he said, be more a breach of our contract with France than the first section of the bill now before the House. The one was, in fact, as much a departure from the engagement with France as the other. The following was the amendment offered by Mr. PITKIN: _Provided_, _also_, That nothing in this act, or the act to which this is a supplement, shall be construed to affect any vessels owned wholly by a citizen or citizens of the United States, or the cargoes of any such vessels which shall have cleared out from any port in the West Indies within ---- days after the 2d of February, 1811. The yeas and nays on the motion were, 46 yeas; 58 nays. Mr. MACON addressed the Chair on the merits of the bill at some length. He believed the President to have been justified in issuing his proclamation by the Duc de Cadore's letter; but as subsequent information had been received from France, the question appeared to him to resolve itself into this: Was the sequestration of our vessels from the 1st November to the 2d of February a violation of our neutral rights or not? Had the decrees been so modified, under present circumstances, as that they had ceased to violate our neutral commerce? He conceived not, and should therefore vote against the bill. He deprecated the course of debate, and the irritation which prevailed in the House, as tending to bring this body into disrepute, &c. Mr. P. B. PORTER then said that, for the purpose of coming to a decision on the bill, and putting an end to a scene which was, to say the least of it, disreputable to the House, he moved for the previous question on engrossing the bill. The previous question was taken and decided in the affirmative, and the bill ordered to a third reading--65 to 9. The bill was then read a third time. The previous question was required on its passage, and carried in the affirmative. Mr. RANDOLPH twice successively moved an adjournment. Motions negatived; the first 65 to 10, the second 66 to 8. The question on the passage of the bill was then decided in the affirmative--yeas 64, nays 12, as follows: YEAS.--Lemuel J. Alston, Willis Alston, jun., William Anderson, David Bard, William T. Barry, Burwell Bassett, William W. Bibb, Adam Boyd, Robert Brown, William A. Burwell, William Butler, Joseph Calhoun, Langdon Cheves, Matthew Clay, James Cochran, William Crawford, Richard Cutts, Joseph Desha, John W. Eppes, William Findlay, Meshack Franklin, Barzillai Gannett, Gideon Gardner, Thomas Gholson, Peterson Goodwyn, James Holland, Jacob Hufty, Richard M. Johnson, Thomas Kenan, John Love, Aaron Lyle, Samuel McKee, William McKinley, Pleasant M. Miller, Samuel L. Mitchill, John Montgomery, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Gurdon S. Mumford, Thos. Newbold, Thos. Newton, John Porter, Peter B. Porter, John Rea of Pennsylvania, John Rhea of Tennessee, Matthias Richards, Samuel Ringgold, Erastus Root, Ebenezer Sage, John A. Scudder, Ebenezer Seaver, Adam Seybert, Samuel Shaw, Dennis Smelt, John Smilie, Geo. Smith, John Smith, Uri Tracy, George M. Troup, Charles Turner, jr., Robert Weakley, Robert Whitehill, and Robert Witherspoon. NAYS.--Abijah Bigelow, Barent Gardenier, Richard Jackson, jr., William Kennedy, Nathaniel Macon, Elisha R. Potter, John Randolph, Richard Stanford, Jacob Swoope, Archibald Van Home, Laban Wheaton, and Ezekiel Whitman. The House then adjourned to meet again at one o'clock. The following is the bill as it passed this House: A Bill supplementary to the act, entitled "An act concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes." _Be it enacted, &c._, That no vessel, owned wholly by a citizen or citizens of the United States, which shall have departed from a British port, prior to the 2d day of February, 1811, and no merchandise owned wholly by a citizen or citizens of the United States, imported in such vessel, shall be liable to seizure or forfeiture on account of any infraction or presumed infraction of the provisions of the act to which this act is a supplement. SEC. 2. _And be it further enacted_, That, in case Great Britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States, the President of the United States shall declare the fact by proclamation; and such proclamation shall be admitted as evidence, and no other evidence shall be admitted of such revocation or modification in any suit or prosecution which may be instituted under the fourth section of the act to which this act is a supplement. And the restrictions imposed, or which may be imposed, by virtue of the said act, shall, from the date of such proclamation, cease and be discontinued. SEC. 3. _And be it further enacted_, That, until the proclamation aforesaid shall have been issued, the several provisions of the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eighteenth sections of the act, entitled "An act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes," shall have full force and be immediately carried into effect against Britain, her colonies, and dependencies: _Provided, however_, That any vessel or merchandise which may, in pursuance thereof, be seized, prior to the fact being ascertained, whether Great Britain shall, on or before the second day of February, one thousand eight hundred and eleven, have revoked or modified her edicts in the manner above mentioned, shall, nevertheless, be restored, on application of the parties, on their giving bond with approved sureties to the United States, in a sum equal to the value thereof, to abide the decision of the proper court of the United States thereon; and any such bond shall be considered as satisfied if Great Britain shall, on or before the second day of February, one thousand eight hundred and eleven, have revoked or modified her edicts in the manner above mentioned: _Provided, also_, That nothing herein contained shall be construed to affect any ships or vessels, or the cargoes of ships or vessels, wholly owned by a citizen or citizens of the United States, which had cleared out for the Cape of Good Hope, or for any port beyond the same, prior to the tenth of November, one thousand eight hundred and ten. SATURDAY, March 2. _Bank of the United States._ Mr. P. B. PORTER, from the committee to whom was referred, on the twenty-fifth ultimo, the memorial of the Stockholders of the Bank of the United States, made the following report, which was read: "The committee to whom was referred the memorial of the Stockholders of the Bank of the United States, report: "That they have carefully examined the various matters set forth in the said memorial, and attentively listened to the representations of the gentlemen who have appeared in behalf of the said petitioners. The object of the memorialists is to obtain extension of their corporate powers beyond the period limited for the expiration of their charter, so as to enable them to prosecute for their debts, and to arrange, liquidate, and close the various concerns of the company. "The committee are of opinion that a law of Congress, granting the powers prayed for, would facilitate the final adjustment of the affairs of the bank, although they do not think such a law indispensable to that object. But believing, as your committee do, that, in granting the original charter to the stockholders, Congress transcended the legitimate powers of the constitution; the same objection now presents itself to the extension of any of their corporate capacities. "If the committee had time to go into the investigation, and to present to the House the various reasons which have conduced to this opinion, it would be more than useless to divert its attention from the important concerns of the nation, at this late period of the session, to a subject which, but a few days since, was so fully and elaborately discussed. "They therefore beg leave to introduce the following resolution: "_Resolved_, That the prayer of the memorialists ought not to be granted." The House agreed to meet to-morrow, (being Sunday.) The House then adjourned to six o'clock this evening. March 2--_6 o'clock, p.m._ _Adjournment._ On motion of Mr. SMILIE, _Resolved_, That the thanks of this House be presented to JOSEPH B. VARNUM, in testimony of their approbation of his conduct in the discharge of the arduous and important duties assigned to him while in the Chair. The SPEAKER then made his acknowledgments to the House in the following words: _Gentlemen of the House of Representatives_: I acknowledge, with grateful sensibility, the aid you have afforded me in the discharge of the duties of Speaker. Your approbation of my conduct in the important office you have been pleased to assign me, affords me very great consolation; and permit me to assure you, gentlemen, that you have my most ardent wishes for your individual prosperity and happiness. At this moment, Mr. GARLAND, from the committee appointed for the purpose, reported that they had waited on the President and informed him that they proposed to adjourn, and had received for answer that he had no further communication to make. A message was received from the Senate, and reciprocated, that they were about to adjourn; a motion was then made to adjourn, and carried. FOOTNOTES: [11] Thus terminated the existence of the first Bank of the United States; but there was a fatal defect in terminating it in not providing a general currency in place of its notes, by reviving the gold currency and in not creating an independent treasury for keeping the public moneys. Those who terminated the existence of the second bank avoided these errors, and thereby avoided all the evils and embarrassments which followed the termination of the first one. TWELFTH CONGRESS.--FIRST SESSION. BEGUN AT THE CITY OF WASHINGTON, NOVEMBER 4, 1811. PROCEEDINGS IN THE SENATE.[12] MONDAY, November 4, 1811. The first session of the Twelfth Congress commenced this day at the city of Washington, conformably to the proclamation of the President of the United States, of the 24th of July last, and the Senate assembled in their Chamber. PRESENT: GEORGE CLINTON, Vice President of the United States and President of the Senate. NICHOLAS GILMAN and CHARLES CUTTS, from New Hampshire. CHAUNCEY GOODRICH and SAMUEL W. DANA, from Connecticut. STEPHEN R. BRADLEY, from Vermont. JOHN SMITH and OBADIAH GERMAN, from New York. JOHN CONDIT and JOHN LAMBERT, from New Jersey. ANDREW GREGG and MICHAEL LEIB, from Pennsylvania. OUTERBRIDGE HORSEY, from Delaware. SAMUEL SMITH and PHILIP REED, from Maryland. WILLIAM B. GILES, from Virginia. JESSE FRANKLIN, from North Carolina. JOHN GAILLARD and JOHN TAYLOR, from South Carolina. WILLIAM H. CRAWFORD and CHARLES TAIT, from Georgia. JOHN POPE, from Kentucky. JOSEPH ANDERSON, from Tennessee. THOMAS WORTHINGTON, from Ohio. GEORGE M. BIBB, appointed a Senator by the Legislature of the State of Kentucky, for the term of six years, commencing on the 4th day of March last; _George W. Campbell_, appointed a Senator by the Legislature of the State of Tennessee, in place of Jenkin Whiteside, resigned; JEREMIAH B. HOWELL, appointed a Senator, for the term of six years, commencing on the fourth day of March last, by the Legislature of the State of Rhode Island and Providence Plantations; JOSEPH B. VARNUM, appointed a Senator by the Legislature of the State of Massachusetts, for the term of six years, commencing on the fourth day of March last; respectively produced their credentials, which were read, and the oath prescribed by law was administered to them, and they took their seats in the Senate. The oath was also administered to Messrs. CONDIT, CRAWFORD, GILES, GILMAN, and TAYLOR, their credentials having been read and filed during the last session. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business. A message from the House of Representatives informed the Senate that a quorum of the House of Representatives is assembled, and have elected HENRY CLAY, Esq., one of the Representatives from the State of Kentucky, their Speaker, and are ready to proceed to business. They have appointed a committee on their part, jointly with such committee as may be appointed on the part of the Senate, to wait on the President of the United States, and notify him that a quorum of the two Houses is assembled and ready to receive any communications that he may be pleased to make to them. The Senate concurred in the appointment of a joint committee on their part, agreeably to the resolution last mentioned; and Messrs. ANDERSON and GAILLARD were appointed the committee. The Senate then adjourned. TUESDAY, November 5. RICHARD BRENT, from the State of Virginia, attended. _Annual Message._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Fellow-citizens of the Senate and House of Representatives_: In calling you together sooner than a separation from your homes would otherwise have been required, I yielded to considerations drawn from the posture of our foreign affairs; and in fixing the present, for the time of your meeting, regard was had to the probability of further developments of the policy of the belligerent powers towards this country, which might the more unite the National Councils in the measures to be pursued. At the close of the last session of Congress, it was hoped that the successive confirmations of the extinction of the French decrees, so far as they violated our neutral commerce, would have induced the Government of Great Britain to repeal its Orders in Council, and thereby authorize a removal of the existing obstructions to her commerce with the United States. Instead of this reasonable step towards satisfaction and friendship between the two nations, the Orders were, at a moment when least to have been expected, put into more rigorous execution; and it was communicated through the British Envoy just arrived, that, whilst the revocation of the edicts of France, as officially made known to the British Government, was denied to have taken place, it was an indispensable condition of the repeal of the British Orders that commerce should be restored to a footing that would admit the productions and manufactures of Great Britain, when owned by neutrals, into markets shut against them by her enemy; the United States being given to understand that, in the mean time, a continuance of their non-importation act would lead to measures of retaliation. At a later date, it has indeed appeared that a communication to the British Government, of fresh evidence of the repeal of the French decrees against our neutral trade, was followed by an intimation that it had been transmitted to the British Plenipotentiary here, in order that it might receive full consideration in the depending discussions. This communication appears not to have been received; but the transmission of it hitherto, instead of founding on it an actual repeal of the orders, or assurances that the repeal would ensue, will not permit us to rely on any effective change in the British Cabinet. To be ready to meet with cordiality satisfactory proofs of such a change, and to proceed, in the mean time, in adapting our measures to the views which have been disclosed through that Minister, will best consult our whole duty. In the friendly spirit of those disclosures, indemnity and redress for other wrongs have continued to be withheld; and our coasts, and the mouths of our harbors, have again witnessed scenes not less derogatory to the dearest of our national rights, than vexatious to the regular course of our trade. Among the occurrences produced by the conduct of British ships of war hovering on our coasts, was an encounter between one of them and the American frigate commanded by Captain Rodgers, rendered unavoidable on the part of the latter, by a fire, commenced without cause, by the former; whose commander is therefore alone chargeable with the blood unfortunately shed in maintaining the honor of the American flag. The proceedings of a court of inquiry, requested by Captain Rodgers, are communicated, together with the correspondence relating to the occurrence between the Secretary of State and His Britannic Majesty's Envoy. To these are added the several correspondences which have passed on the subject of the British Orders in Council; and to both, the correspondence relating to the Floridas, in which Congress will be made acquainted with the interposition which the Government of Great Britain has thought proper to make against the proceeding of the United States. The justice and fairness which have been evinced on the part of the United States towards France, both before and since the revocation of her decrees, authorized an expectation that her Government would have followed up that measure by all such others as were due to our reasonable claims, as well as dictated by its amicable professions. No proof, however, is yet given of an intention to repair the other wrongs done to the United States, and particularly to restore the great amount of American property seized and condemned under edicts which, though not affecting our neutral relations, and therefore not entering into questions between the United States and other belligerents, were, nevertheless, founded in such unjust principles that the reparation ought to have been prompt and ample. In addition to this and other demands of strict right on that nation, the United States have much reason to be dissatisfied with the rigorous and unexpected restrictions to which their trade with the French dominions has been subjected; and which, if not discontinued, will require at least corresponding restrictions on importations from France into the United States. On all those subjects, our Minister Plenipotentiary, lately sent to Paris, has carried with him the necessary instructions; the result of which will be communicated to you, and by ascertaining the ulterior policy of the French Government towards the United States, will enable you to adapt to it that of the United States towards France. Our other foreign relations remain without unfavorable changes. With Russia they are on the best footing of friendship. The ports of Sweden have afforded proofs of friendly dispositions towards our commerce in the Councils of that nation also. And the information from our special Minister to Denmark, shows that the mission had been attended with valuable effects to our citizens, whose property had been so extensively violated and endangered by cruisers under the Danish flag. Under the ominous indications which commanded attention, it became a duty to exert the means committed to the Executive department in providing for the general security. The works of defence on our maritime frontier have accordingly been prosecuted with an activity leaving little to be added for the completion of the most important ones; and, as particularly suited for co-operation in emergencies, a portion of the gunboats have, in particular harbors, been ordered into use. The ships of war before in commission, with the addition of a frigate, have been chiefly employed as a cruising guard to the rights of our coast. And such a disposition has been made of our land forces, as was thought to promise the services most appropriate and important. In this disposition is included a force, consisting of regulars and militia, embodied in the Indiana Territory, and marched towards our Northwestern frontier. This measure was made requisite by the several murders and depredations committed by Indians, but more especially by the menacing preparations and aspect of a combination of them on the Wabash, under the influence and direction of a fanatic of the Shawanese tribe. With these exceptions, the Indian tribes retain their peaceable dispositions towards us, and their usual pursuits. I must now add that the period is arrived which claims from the Legislative guardians of the national rights a system of more ample provisions for maintaining them. Notwithstanding the scrupulous justice, the protracted moderation, and the multiplied efforts, on the part of the United States, to substitute for the accumulating dangers to the peace of the two countries, all the mutual advantages of re-established friendship and confidence, we have seen that the British Cabinet perseveres, not only in withholding a remedy for other wrongs, so long and so loudly calling for it, but in the execution, brought home to the threshold of our territory, of measures which, under existing circumstances, have the character, as well as the effect, of war on our lawful commerce. With this evidence of hostile inflexibility, in trampling on rights which no independent nation can relinquish, Congress will feel the duty of putting the United States into an armor and an attitude demanded by the crisis, and corresponding with the national spirit and expectations. I recommend, accordingly, that adequate provision be made for filling the ranks and prolonging the enlistments of the regular troops; for an auxiliary force, to be engaged for a more limited term; for the acceptance of volunteer corps, whose patriotic ardor may court a participation in urgent services; for detachments, as they may be wanted, of other portions of the militia; and for such a preparation of the great body as will proportion its usefulness to its intrinsic capacities. Nor can the occasion fail to remind you of the importance of those military seminaries which, in every event, will form a valuable and frugal part of our Military Establishment. The manufacture of cannon and small arms has proceeded with due success; and the stock and resources of all the necessary munitions are adequate to emergencies. It will not be inexpedient, however, for Congress to authorize an enlargement of them. Your attention will, of course, be drawn to such provisions on the subject of our naval force as may be required for the services to which it may be best adapted. I submit to Congress the seasonableness also of an authority to augment the stock of such materials as are imperishable in their nature, or may not at once be attainable. In contemplating the scenes which distinguish this momentous epoch, and estimating their claims to our attention, it is impossible to overlook those developing themselves among the great communities which occupy the Southern portion of our hemisphere, and extend into our neighborhood. An enlarged philanthropy, and an enlightened forecast, concur in imposing on the national Councils an obligation to take a deep interest in their destinies, to cherish reciprocal sentiments of good will, to regard the progress of events, and not to be unprepared for whatever order of things may be ultimately established. Under another aspect of our situation, the early attention of Congress will be due to the expediency of further guards against evasions and infractions of our commercial laws. The practice of smuggling, which is odious every where, and particularly criminal in free Governments, where the laws being made by all for the good of all, a fraud is committed on every individual as well as on the State, attains its utmost guilt when it blends, with a pursuit of ignominious gain, a treacherous subserviency in the transgressors to a foreign policy, adverse to that of their own country. It is then that the virtuous indignation of the public should be enabled to manifest itself through the regular animadversions of the most competent laws. To secure greater respect to our mercantile flag, and to the honest interests which it covers, it is expedient also that it be made punishable in our citizens to accept licenses from foreign Governments for a trade unlawfully interdicted by them to other American citizens; or to trade under false colors or papers of any sort. A prohibition is equally called for against the acceptance, by our citizens, of special licenses to be used in a trade with the United States; and against the admission into particular ports of the United States of vessels from foreign countries authorized to trade with particular ports only. Although other subjects will press more immediately on your deliberations, a portion of them cannot but be well bestowed on the just and sound policy of securing to our manufactures the success they have attained, and are still attaining, in some degree, under the impulse of causes not permanent; and to our navigation the fair extent of which it is at present abridged by the unequal regulations of foreign Governments. Besides the reasonableness of saving our manufacturers from sacrifices which a change of circumstances might bring on them, the national interest requires that, with respect to such articles at least as belong to our defence and our primary wants, we should not be left in unnecessary dependence on external supplies. And whilst foreign Governments adhere to the existing discriminations in their ports against our navigation, and an equality or lesser discrimination is enjoyed by their navigation in our ports, the effect cannot be mistaken, because it has been seriously felt by our shipping interests; and in proportion as this takes place, the advantages of an independent conveyance of our products to foreign markets, and of a growing body of mariners, trained by their occupation for the service of their country in times of danger, must be diminished. The receipts into the Treasury during the year ending on the thirtieth of September last, have exceeded thirteen millions and a half of dollars, and have enabled us to defray the current expenses, including the interest on the public debt, and to reimburse more than five millions of dollars of the principal, without recurring to the loan authorized by the act of the last session. The temporary loan obtained in the latter end of the year one thousand eight hundred and ten, has also been reimbursed, and is not included in that amount. The decrease of revenue arising from the situation of our commerce and the extraordinary expenses which have and may become necessary, must be taken into view, in making commensurate provisions for the ensuing year. And I recommend to your consideration the propriety of insuring a sufficiency of annual revenue, at least to defray the ordinary expenses of Government, and to pay the interest on the public debt, including that on new loans which may be authorized. I cannot close this communication without expressing my deep sense of the crisis in which you are assembled, my confidence in a wise and honorable result to your deliberations, and assurances of the faithful zeal with which my co-operating duties will be discharged; invoking, at the same time, the blessing of Heaven on our beloved country, and on all the means that may be employed in vindicating its rights and advancing its welfare. JAMES MADISON. WASHINGTON, _November 5, 1811_. WEDNESDAY, November 6. JAMES LLOYD, from the State of Massachusetts, took his seat in the Senate. FRIDAY, November 8. On motion, by Mr. SMITH, of Maryland, _Resolved_, That Mountjoy Bayly, Doorkeeper and Sergeant-at-Arms to the Senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the Doorkeeper to the Senate, and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session and for twenty days after. MONDAY, November 11. JAMES TURNER, appointed a Senator by the Legislature of the State of North Carolina, for the term of six years, commencing on the 4th day of March last, produced his credentials; which were read, and the oath prescribed by law was administered to him, and he took his seat in the Senate. TUESDAY, November 12. ALEXANDER CAMPBELL, from the State of Ohio, took his seat in the Senate. THURSDAY, November 14. _Reparation for the attack on the frigate Chesapeake._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I communicate to Congress copies of a correspondence between the Envoy Extraordinary and Minister Plenipotentiary of Great Britain and the Secretary of State, relative to the aggressions committed by a British ship of war on the United States frigate Chesapeake, by which it will be seen that that subject of difference between the two countries is terminated by an offer of reparation, which has been acceded to. JAMES MADISON. WASHINGTON, _Nov. 13, 1811_. The Message and papers therein referred to were read, and ordered to lie on the table. FRIDAY, November 22. JONATHAN ROBINSON, from the State of Vermont, took his seat in the Senate. MONDAY, November 25. WILLIAM HUNTER, appointed a Senator by the Legislature of the State of Rhode Island and Providence Plantations, in place of Christopher Grant Champlin, resigned, produced his credentials, was qualified, and took his seat in the Senate. FRIDAY, November 29. The oath prescribed by law was administered to Mr. BAYARD, his credentials having been read and filed during the last session. THURSDAY, December 19. _Battle of Tippecanoe._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I lay before Congress two letters received from Governor Harrison, of the Indiana Territory, reporting the particulars and the issue of the expedition under his command, of which notice was taken in my communication of November 5th. While it is deeply lamented that so many valuable lives have been lost in the action which took place on the 7th ultimo, Congress will see, with satisfaction, the dauntless spirit and fortitude victoriously displayed by every description of the troops engaged, as well as the collected firmness which distinguished their commander, on an occasion requiring the utmost exertions of valor and discipline. It may reasonably be expected that the good effects of this critical defeat and dispersion of a combination of savages, which appears to have been spreading to a greater extent, will be experienced not only in a cessation of the murders and depredations committed on our frontier, but in the prevention of any hostile incursions otherwise to have been apprehended. The families of those brave and patriotic citizens who have fallen in this severe conflict, will doubtless engage the favorable attention of Congress. JAMES MADISON. WASHINGTON, _Dec. 18, 1811_. The Message and letters referred to were read, and ordered to lie on the table. FRIDAY, December 20. Mr. GILMAN, from the committee, reported the bill to raise, for a limited time, an additional military force, correctly engrossed; and the bill was read the third time, and the blanks filled. On the question, Shall this bill pass? it was determined in the affirmative--yeas 26, nays 4, as follows: YEAS.--Messrs. Anderson, Bibb, Bradley, Campbell of Ohio, Campbell of Tennessee, Condit, Crawford, Cutts, Franklin, Gaillard, German, Gilman, Gregg, Horsey, Howell, Leib, Lloyd, Pope, Reed, Robinson, Smith of New York, Tait, Taylor, Turner, Varnum, and Worthington. NAYS.--Messrs. Dana, Goodrich, Hunter, and Lambert. _Rangers for the Frontier._ The Senate resumed, as in Committee of the Whole, the bill authorizing the President of the United States to raise certain companies of spies or rangers for the protection of the frontier of the United States; and the bill was amended; and the President reported it to the House accordingly. On the question, Shall this bill be engrossed and read a third time as amended? it was determined in the affirmative. TUESDAY, December 24. _Hudson River and Lake Ontario Canal._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I communicate to Congress copies of an act of the Legislature of New York, relating to a canal from the great Lakes to Hudson's River. In making the communication, I consult the respect due to that State in whose behalf the commissioners appointed by the act have placed it in my hands for the purpose. The utility of canal navigation is universally admitted. It is not less certain, that scarcely any country offers more extensive opportunities for that branch of improvements than the United States; and none, perhaps, inducements equally persuasive to make the most of them. The particular undertaking contemplated by the State of New York, which marks an honorable spirit of enterprise, and comprises objects of national as well as more limited importance, will recall the attention of Congress to the signal advantages to be derived to the United States from a general system of internal communication and conveyance; and suggest to their consideration whatever steps may be proper, on their part, towards its introduction and accomplishment. As some of those advantages have an intimate connection with arrangements and exertions for the general security, it is at a period calling for these that the merits of such a system will be seen in the strongest lights. JAMES MADISON. WASHINGTON, _December 23, 1811_. The Message and documents therein referred to were read; and referred to the committee last mentioned, to consider and report thereon. FRIDAY, December 27. The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I lay before Congress copies of resolutions entered into by the Legislature of Pennsylvania, which have been transmitted to me, with that view, by the Governor of that State, in pursuance of one of the said resolutions. JAMES MADISON. WASHINGTON, _December 27, 1811_. _Oliver Evans' claim for different applications of Steam Power._ Mr. LEIB presented the memorial of Oliver Evans, stating that the memorialist verily believes himself to be the original proposer of steam-boats and steam-wagons in the United States, (Doctor Franklin only excepted;) and that he conceives his patent, dated February 14, 1804, secured to him the right to use his engine for boats, mills, and land carriages, and praying to be left in full possession of those rights, for reasons stated at large in the memorial; which was read, and ordered to lie on the table. MONDAY, December 30. _Burning of the Richmond, Va., Theatre._ Mr. BRADLEY submitted the following motion for consideration: _Resolved_, That the members of this House will wear crape on the left arm for one month, in testimony of the national respect and sorrow for the unfortunate persons who perished in the city of Richmond, in Virginia, on the night of the 26th of the present month. TUESDAY, December 31. Mr. BRADLEY called up the motion made yesterday on the subject; and, on his motion, it was amended and agreed to as follows: _Resolved_, That the members of this House will wear crape on the left arm for one month, in testimony of the condolence and sorrow of the Senate for the calamitous event by which the Chief Magistrate of the State of Virginia, and so many of her citizens, perished by fire, in the city of Richmond, on the night of the 26th of the present month. THURSDAY, January 16, 1812. _Hostile policy of Great Britain._ The following message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I communicate to Congress a letter from the Envoy Extraordinary and Minister Plenipotentiary of Great Britain to the Secretary of State, with the answer of the latter. The continued evidence afforded in this correspondence, of the hostile policy of the British Government against our national rights, strengthens the considerations recommending and urging the preparation of adequate means for maintaining them. JAMES MADISON. WASHINGTON, _January 16, 1812_. The Message and documents enclosed were read, and referred to the committee to whom was referred, on the 8th of November last, so much of the Message of the President of the United States as concerns the relations between the United States and France and Great Britain, to consider and report thereon; and five hundred copies thereof ordered to be printed for the use of the Senate. FRIDAY, January 17. _Incorporation of a Mining Company in Upper Louisiana._ Mr. BRADLEY, from the committee appointed on the petition of Moses Austin and John R. Jones, reported a bill to incorporate Moses Austin, John Rice Jones, Henry Austin, and others, into a company, by the name of the Louisiana Lead Company; and the bill was read, and passed to the second reading. WEDNESDAY, January 29. The bill establishing a land office was read the second time. _Additional Military Force._ The Senate resumed, as in Committee of the Whole, the consideration of the bill, entitled "An act authorizing the President of the United States to accept and organize certain volunteer military corps," together with the amendments reported thereto by the select committee. Mr. GILES rose and opposed at length the bill as it came from the House, reserving to himself the privilege of acting on the proposed amendment according to the result of further reflections. He believed the bill would be productive of no practical efficacy. It proposed a force which could not be raised; and if raised, from the short period of its service, in the event of serious hostilities, would be utterly incompetent to effect the objects of those hostilities. The bill would be inoperative, because, in the States of Massachusetts and Vermont, (and he presumed in other States,) no power or provision existed by which these volunteers could be commissioned, so as to perform the contemplated service; and if the Government were deprived of the volunteers in Massachusetts and Vermont, he did not know where they could obtain volunteers for the object which he believed all branches of the Government had in view. He presumed that the system of volunteers was the favorite system of the Government; and this he inferred from their having recommended to the other House the raising of ten thousand regulars only, and from the Message of the President, sent in after both Houses had passed the bill for raising twenty-five thousand regulars, and communicating the correspondence between Mr. Foster and Mr. Monroe, as a ground for urging Congress to persevere in the preparations they were engaged in making. The President must, therefore, have deemed a volunteer force essential for the contemplated service. And here he observed he thought, if his correspondence with the British Envoy, which afforded evidence of "continued hostility" towards us, furnished matter of sufficient importance to press upon Congress the utility of hastening their measures of preparation, that the other business of the Department of State might have been allowed to repose long enough for a reply to have been made to Mr. Foster, before nearly a month had elapsed after the date of his letter. He did not advert to this circumstance from any want of respect to this Government: he should always treat them with the highest respect. He should prefer the reduction of the number of the volunteers to twenty-five thousand, rather than the retention of the fifty thousand, because it would increase the momentum of actual force, and decrease the expenses, about which so much has been said. Surely, he said, he did not mean that it would not increase the momentum of force proposed by the other House, but that proposed by the Executive. The Executive had asked for ten thousand regulars, and fifty thousand volunteers--in all, sixty thousand men. The other House had agreed to give him eighty-five thousand. The proposed amendment would, therefore, bring the quantum of force down nearly to the Executive requisition. But the bill proposed a force which would be utterly inefficient, as all other volunteer bills had been. The returns under the thirty thousand volunteer law, passed two or three years ago, were so few, that the Secretary of War did not register them. He asked, how efficient could that species of force be, of which the Chief Magistrate did not think it worth while to have a record kept? It was only a formidable display of armies on paper--a tender of services--which only produced very handsome replies from the President. He did not censure the Secretary of War or the President; very far from it; the defect had been in the law. He begged gentlemen to look seriously at the subject. If a war should ensue, it must be a serious one. The responsibility attached to Congress of placing an adequate force in the hands of the President for the war. But if they passed a law which would give the President only a nominal force, totally incompetent to effect any desirable object, he, for one, should be unwilling to take any share of responsibility on himself. THURSDAY, February 27. _Increase of the Navy._ The Senate resumed, as in Committee of the Whole, the consideration of the bill entitled "An act concerning the Naval Establishment," together with the amendments reported thereto by the select committee. Mr. LLOYD.--Mr. President, the amendments proposed by the committee to whom this bill has been referred, having been gone through with, I now beg leave to offer a new one, by an additional section to the following effect: "_Be it further enacted_, That the President of the United States be, and he hereby is, authorized to cause to be built as speedily as may be, on the most approved model, ---- frigates, not exceeding thirty-six guns each; and that a sum not exceeding ---- dollars be, and the same is hereby appropriated for building the said frigates, out of any moneys in the Treasury not otherwise appropriated." It is my intention, sir, to move for twenty new frigates; but the number I have left blank in order, should the Senate be favorably disposed to an increase of the Navy, and disagree with me as to the degree of that increase, they might regulate the number at their pleasure. Sir, I have been induced to offer this amendment from an impulse of duty towards my more immediate constituents, and also from a sense of the obligation imposed upon me, however feebly I may be able to respond to it, in the honorable station in which I am placed, to endeavor to the extent of my ability to support the dignity, protect the rights, and advance the best interests of the United States. Sir, I trust the amendment under consideration, if adopted, would have a relation, and a favorable relation, to all these objects. If it be not the determination of the Government to engage in an open, actual, efficient war; to place the nation in such a complete state of preparation as to avert war, from our state of readiness to meet it; then the measures of the present session, those of filling up the existing Military Establishments, and thereby adding to it between six and seven thousand men, that of enlisting a standing army of twenty-five thousand men to serve for five years, unless sooner discharged--of providing for the employment of fifty thousand volunteers, and of holding in readiness one hundred thousand of the militia, would be not only inexcusable, but nearly treasonable; as they would in such case, without any adequate object, impose severe and heavy burdens upon the people of the United States, from which years of the highest degree of prosperity would not relieve them. But, sir, I am bound to believe, that unless redress be obtained, it is the determination of the Government of the United States to enter into an actual, vigorous, real war, or at any rate to put the nation into a perfect State of readiness to commence it, should it be necessary; and in either of these cases, an efficient naval force is as indispensable, nay much more indispensable, than a land force. In the year 1793, when Great Britain depredated upon your commerce, you had a man at the head of your Government who fought no battles with paper resolutions, nor attempted to wage war with commercial restrictions, although they were then pressed upon him. He caused it to be distinctly and with firmness made known to Great Britain, that if she did not both cease to violate our rights, and make us reparation for the wrongs we had sustained--that young and feeble as we then were, just in the gristle, and stepping from the cradle of infancy, we would try the tug of war with her. What was the consequence? Her depredations were stopped--we made a treaty with her, under which we enjoyed a high degree of prosperity. Our claims were fairly heard, equitably adjudged, and the awards were honorably and punctually paid to the sufferers. In this instance you did something for commerce. Next came the war with Tripoli--the Barbary States preyed upon our commerce--you determined to resist, and despatched a small squadron to the Mediterranean: this ought to have been considered as the germ of your future maritime greatness: the good conduct and bravery of that squadron, and the self-immolation of some of its officers, spread the renown of your naval prowess to all quarters of the civilized globe. What did you in this instance? At the moment when victory had perched upon your standard--when you might have exhibited the interesting spectacle of the infant Government of the United States holding in subjugation one of the Powers of Barbary, to whom all Europe had been subservient--at this moment when conquest was completely within your grasp--civil agency stepped in--the laurel was torn from the brow of as gallant a chieftain as ever graced the plains of Palestine, and we ignominiously consented to pay a tribute, where we might have imposed one. After this you had the Berlin decree, the Orders in Council, the Milan decree, the Rambouillet decree, the depredations of Spain, the robberies even of the renegado black chief of St. Domingo, and the unprovoked and still continued plunder of Denmark, a nation of pirates from their origin. What cause of complaint has Denmark, or ever had Denmark, against us? Her most fond and speculative maritime pretensions we have willingly espoused, and yet she continues daily to capture and condemn our vessels and cargoes, and contemptuously tells us that the Government of the United States is too wise to go to war for a few merchant ships. And this we bear from a people as inferior to the United States in all the attributes of national power or greatness, as I am inferior to Hercules. Yes, sir, commerce has been abandoned, else why prohibit your merchants from bringing the property, to a large amount, which they have fairly purchased and paid for, into the ports of our country, else why, by this exclusion, perform the double operation of adding to the resources of the enemy you are going to war with and impoverishing your own citizens. Yes, sir, commerce has been abandoned, "deserted in her utmost need by those her former bounty fed." Yes, sir, she has been abandoned. She has been left as a wreck upon a strand, or as a derelict upon the waters of the ocean, to be burnt, sunk, or plundered, by any great or puny assailant who could man an oar or load a swivel for her annoyance. What was the leading object of the adoption of the Federal Constitution in the northern parts of the Union? Most emphatically, it was for the protection of commerce. What was the situation of some branches of our commerce then? And what is it now? Look at the statement which was laid upon our tables about a fortnight past, and taken from the returns of the Treasury. What effect has it had upon our fisheries, which were so nobly and successfully contended for by the American Commissioners who settled the Treaty of 1783; which for a time suspended that Treaty; and which, both the duplicity and intrigue of France and the interest of England strove to deprive us of--of our fisheries, which were then considered, and still ought to be considered, as a main sinew of our strength, and a nursery for our seamen? MONDAY, March 2. _Increase of the Navy._ Mr. CRAWFORD.--The honorable gentleman from Massachusetts (Mr. LLOYD) thinks that nothing has been done by the Government for commerce, whilst commerce has done every thing for the nation; that commerce has paid into the public Treasury $200,000,000. If it is contended that this sum has been paid exclusively by commerce, nothing can be more incorrect. The money collected from imposts and duties is paid by the consumer of merchandise upon which the duties are imposed. It is collected immediately from the merchant, and ultimately from the nation. The only money paid into the Treasury which can justly be placed to the exclusive credit of commerce, is the sum retained by the Government upon debentures, which is only 7-10ths of one per cent. upon goods paying a duty of twenty per cent. ad valorem, and has never amounted to $400,000 in any one year. The export of foreign productions from the United States in the year 1807, exceeded $59,000,000, and the sum paid into the Treasury that year on account of drawbacks was about $390,000, which is the greatest amount received from that source of revenue since the organization of the Government. The duty upon tonnage, like the duty imposed on merchandise, is paid by the consumer or grower of the cargoes transported by the ship-holders, of whom this duty is immediately collected. The ultimate payment of this duty by the grower or consumer will depend upon the relative demand for, and supply of the articles in the market to which they are exported. If the demand for the article is greater than the quantity in the market, it is paid by the consumer; if the supply exceeds the demand, it is paid by the grower, in the form of a reduction of the price of the article equal to the duty imposed. Who are the most interested in commerce, the growers of the articles, the exchange and transportation of which constitute commerce, or the factors and freighters employed in the exchange and transportation of those articles? Can any man doubt for one moment that the growers, the rightful owners of the articles to be exchanged, are more deeply interested in commerce than the merchant and ship-holder, who only make a profit from the sale and transportation of the articles exchanged? If the profit they derive from commerce should be so enormous as to exceed the original value of those articles in the hands of the growers, still it can be demonstrated that the interest of the latter is more vitally affected by a prosperous or adverse state of commerce, than that of the merchant or ship-holder. The merchant will be regulated in the price which he gives to the grower, by the state of the market and the price of transportation to the market. Let the price be what it may in foreign markets, the merchant is regulated by it, and can only be affected by sudden changes in those markets which may be prejudicial or advantageous to him. It is a matter of small moment to him whether the articles in which he deals bring a high or low price in the market to which they are sent, if that price is not variable, because he will regulate the price he gives for them by the price which he can obtain. But the price which those articles will bring in the market to which they are sent, is all-important to the grower, because it will regulate the price which he is to receive for them beyond the power of his control. Every circumstance which tends to destroy competition and reduce the number of markets to which our produce is sent, vitally affects the interest of the grower. The planter, the farmer, is, therefore, more deeply interested in the prosperity of that commerce which finds a market for the annual surplus productions of his industry, than the merchant or ship-holder. This direct commerce is indispensable to the internal growth and improvement of the country, and to the comfort and happiness of the people, and more so to the people of the Southern and Western States than any other part of the United States. Sir, we are not so grossly ignorant as to mistake our interest in this matter. We know that, without commerce, without a market for the surplus productions of our labor, we should be deprived of many of those articles which long habit has made necessary to our ease and comfort. If, then, we are not grossly ignorant of our true interest, nothing can be more unfounded than the accusation of the gentleman from New York, (Mr. GERMAN.) The charge must be the result of ignorance or prejudice. Mr. C. said he would not follow the example of that gentleman by saying, "perhaps this prejudice might be an honest prejudice." No, he would not insult the feelings of that gentleman; he would not question his veracity or integrity by stating hypothetically, "that perhaps his opinions were honest." Whilst he repelled this unfounded charge in the manner which its nature imperiously demanded, he had no hesitation in admitting that the opinions of that gentleman, whether the result of prejudice or of ignorance, were strictly honest. Mr. C. said there was no man in the nation more friendly to that commerce which he had described than he was, and that no part of the nation cherished it with more ardor than that which he in part had the honor to represent on this floor. But, sir, there is a commerce which has been prosecuted to a very great extent by the commercial capitalists of the United States, for the prosperity of which the agricultural part of the nation do not feel the same solicitude. In the year 1807, the United States exported upwards of $59,000,000 of foreign productions. This commerce has no connection with or dependence upon the annual surplus productions of the country, which is the only commerce that essentially promotes domestic industry and multiplies the domestic comforts of the great mass of the people. This commerce, which is the legitimate offspring of war, and expires with the first dawning of peace, is prosecuted principally by our commercial cities to the east and north of the Potomac. The landholders, the country people, the great mass of agriculturists in the United States, never had, and never can have any direct interest in it. The farmer of the Eastern and Middle States, and the planter of the Southern and Western States, stand in the same relation to this commerce. Whether it be prosperous or adverse, is a matter of small concern to them, and nothing but an effort of pure, disinterested patriotism could induce them to jeopardize the peace and happiness of the nation, and stake the prosperity of the direct commerce of the country, for the protection of this mushroom commerce. The use proposed to be made of these frigates, if built, certainly meets my approbation. The idea of protecting our commerce by a naval force, which has been pressed with so much vehemence by some of our navy gentlemen, is worse than visionary. A navy can injure commerce, but cannot afford it protection, unless it annihilates the naval force of the adverse nation. Unless, therefore, we have the means of creating and supporting a naval force able to contend successfully with the British navy for the empire of the seas, we must abandon all idea of protecting our commerce against that nation. Great Britain, with her thousand ships of war, is unable to protect her commerce even in sight of her own coasts. According to my understanding of the views of the honorable gentlemen, these thirty frigates are to be employed in destroying the commerce of the enemy, and not in fighting her public armed vessels. They are in fact to be national privateers. In this point of view, the proposition to cashier the officer who should strike the American flag seems to be at war with the nature of their employment. They are to direct their efforts to the destruction of merchant vessels, and to avoid collision with the ships of war. It is to be apprehended that men, whose duty it is to avoid serious conflicts with the enemy, will grow timid from habit, and will resist but feebly when inevitably forced into them. The character of the naval officers of the United States makes a regulation of this kind wholly unnecessary. Their enterprise, their courage, and intrepidity, are too well established to require a regulation of such severity. As then the gentleman does not intend to dispute the sovereignty even of our own seas with our expected enemy with this naval force, but intends to employ it in the destruction of merchant vessels, an increase of that force appears to me to be wholly unnecessary and impolitic. Individual enterprise, directed by individual interest, will more effectually destroy the commerce of the enemy, than any number of frigates in the power of this Government to build and employ. The Baltimore _Federal Republican_ states that a French privateer in the Atlantic Ocean has captured about thirty merchant vessels, and that the impression made by this single privateer was so serious that thirteen vessels, several of which were frigates, were employed in cruising for her. The truth of this statement may be relied on, because that paper is not in the habit of exaggerating French successes, or of aggravating British sufferings. But it is said that, although our privateers were successful at the commencement of the Revolutionary War, before the conclusion of that contest they were entirely destroyed. Admitting the fact to be true, it does not necessarily follow that such will be the result of the war now in contemplation. After the first years of that contest, the British forces were in possession of the principal ports and harbors of the United States, which made it extremely hazardous for our privateers to approach our own coasts, or enter our own harbors. It is expected that our situation will be very different in the event of war at this time. Instead of possessing the principal ports of the United States, we expect to expel them from the whole of their continental possessions in our neighborhood. If this should be the result of the war, their means of annoying our commerce, and of destroying our privateers, will be greatly diminished, and their power of protecting their commerce from the depredations of our privateers will suffer an equal diminution. MONDAY, March 9. _British Intrigues to dismember the Union._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I lay before Congress copies of certain documents which remain in the Department of State. They prove that, at a recent period, whilst the United States, notwithstanding the wrongs sustained by them, ceased not to observe the laws of peace and neutrality towards Great Britain, and in the midst of amicable professions and negotiations on the part of the British Government, through its public Minister here, a secret agent of that Government was employed in certain States, more especially at the seat of Government in Massachusetts, in fomenting disaffection to the constituted authorities of the nation, and in intrigues with the disaffected, for the purpose of bringing about resistance to the laws, and eventually, in concert with a British force, of destroying the Union, and forming the eastern part thereof into a political connection with Great Britain. In addition to the effect which the discovery of such a procedure ought to have on the public councils, it will not fail to render more dear to the hearts of all good citizens that happy Union of these States, which, under Divine Providence, is the guaranty of their liberties, their safety, their tranquillity, and their prosperity. JAMES MADISON. MARCH 9, 1812. The Message and documents therein referred to were read, and one thousand copies of the Message and documents ordered to be printed for the use of the Senate; and on motion of Mr. CAMPBELL of Tennessee, a committee was appointed to examine the documents above referred to, and designate such as may be necessary to be printed. Messrs. CAMPBELL of Tennessee, BRENT, and BAYARD, were appointed the committee. Mr. LLOYD submitted the following motion for consideration: _Resolved_, That the Secretary of State be directed to lay before the Senate the names of any and all persons in the United States, and especially in the State of Massachusetts, who have in any way or manner whatever entered into, or most remotely countenanced, the project or the views, for the execution or attainment of which John Henry was, in the year 1809, employed by Sir James Craig, then Governor General of the British provinces in North America, and which have this day been communicated to the Senate of the United States. FRIDAY, March 13. _Answer to Mr. Lloyd's inquiry._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate of the United States_: I transmit to the Senate a report of the Secretary of State, complying with their resolution of the 10th instant. JAMES MADISON. DEPARTMENT OF STATE, _March_ 12, 1812. The Secretary of State, to whom was referred the resolution of the Senate of the 10th instant, has the honor to report, that this department is not in possession of any names of persons in the United States, who have, in any way or manner whatever, entered into or countenanced the project or the views, for the execution or attainment of which, John Henry was, in the year 1809, employed by Sir James Craig; the said John Henry having named no persons or person as being concerned in the said project or views referred to in the documents laid before Congress on the 9th instant. Which is respectfully submitted. JAMES MONROE. The Message and report were read, and one thousand copies thereof ordered to be printed for the use of the Senate. WEDNESDAY, March 18. _Incorporation of a Mining Company in Upper Louisiana._ The Senate resumed, as in Committee of the Whole, the consideration of the bill to incorporate Moses Austin, John Rice Jones, Henry Austin, and others, into a company, by the name of the Louisiana Lead Company; and the bill having been further amended, the President reported it to the House accordingly. On the question, Shall this bill be engrossed and read a third time as amended? it was determined in the affirmative. TUESDAY, March 24. In the absence of the VICE PRESIDENT, on motion of Mr. LLOYD, the Senate proceeded to the choice of a President _pro tempore_, as the constitution provides, and WILLIAM H. CRAWFORD was elected. THURSDAY, March 26. _Incorporation of Lead Mine Company._ The engrossed bill to incorporate Moses Austin, John Rice Jones, Henry Austin, and others, into a company, by the name of the Louisiana Lead Company, was read the third time. On the question, Shall this bill pass? it was determined in the affirmative--yeas 14, nays 12, as follows: YEAS.--Messrs. Anderson, Bradley, Condit, Crawford, Dana, German, Goodrich, Gregg, Howell, Hunter, Smith of New York, Tait, Taylor, and Worthington. NAYS.--Messrs. Bayard, Franklin, Giles, Horsey, Lambert, Leib, Lloyd, Reed, Smith of Maryland, Turner, and Varnum. So it was _Resolved_, That this bill pass, and that the title thereof be, "An act to incorporate Moses Austin, John Rice Jones, Henry Austin, and others, into a company, by the name of the Louisiana Lead Company." WEDNESDAY, April 1. _Erection of the Territory of Orleans into a State._ The amendments to the bill, entitled "An act for the admission of the State of Louisiana into the Union, and to extend the laws of the United States to the said State," having been reported by the committee correctly engrossed, the bill was read a third time as amended, and, by unanimous consent, was further amended, by striking out, in the ninth section and second line, the word "next," and inserting the words "one thousand eight hundred and twelve." _Resolved_, That this bill pass with amendments. The bill giving further time for registering claims to land in the eastern district of the Territory of Orleans having been reported by the committee correctly engrossed, was read a third time, and passed. The Senate resumed, as in Committee of the Whole, the consideration of the bill to enlarge the limits of the State of Louisiana; and, no amendment having been offered, on the question, Shall this bill be engrossed and read a third time? it was determined in the affirmative--yeas 21, nays 8, as follows: YEAS.--Messrs. Anderson, Bayard, Bibb, Campbell of Tennessee, Condit, Crawford, Cutts, Gaillard, Giles, Gregg, Horsey, Howell, Leib, Pope, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Varnum, and Worthington. NAYS.--Messrs. Bradley, Franklin, German, Gilman, Goodrich, Lambert, Lloyd, and Reed. _Temporary Embargo._ The following confidential Message was received from the President of the United States: _To the Senate and House of Representatives of the United States_: Considering it as expedient, under existing circumstances and prospects, that a general embargo be laid on all vessels now in port, or hereafter arriving, for the period of sixty days, I recommend the immediate passage of a law to that effect. JAMES MADISON. APRIL 1, 1812. The Message was read; and on motion, by Mr. BAYARD, that the injunction of secrecy be taken off respecting the Message last read, it was determined in the negative--yeas 11, nays 21, as follows: YEAS.--Messrs. Bayard, Dana, German, Gilman, Goodrich, Gregg, Horsey, Hunter, Lambert, Lloyd, and Reed. NAYS.--Messrs. Anderson, Bibb, Bradley, Campbell of Tennessee, Condit, Crawford, Cutts, Franklin, Gaillard, Giles, Howell, Leib, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Varnum, and Worthington. _Resolved_, That the Message be referred to a select committee, to consist of five members, to consider and report thereon by bill or otherwise. _Ordered_, That Messrs. CAMPBELL of Tennessee, TAYLOR, GERMAN, POPE, and BAYARD, be the committee. FRIDAY, April 3. _Temporary Embargo._ The amendments to the bill, entitled "An act laying an embargo on all ships and vessels in the ports and harbors of the United States for a limited time," having been reported by the committee correctly engrossed, the bill was read the third time. On motion, by Mr. LEIB, it was agreed to fill the blank with the word "ninety." On the question, Shall this bill pass as amended? it was determined in the affirmative--yeas 20, nays 13, as follows: YEAS.--Messrs. Anderson, Bibb, Brent, Campbell of Tennessee, Condit, Crawford, Cutts, Franklin, Gaillard, Gregg, Howell, Leib, Pope, Robinson, Smith of New York, Tait, Taylor, Turner, Varnum, and Worthington. NAYS.--Messrs. Bayard, Bradley, Dana, German, Giles, Gilman, Goodrich, Horsey, Hunter, Lambert, Lloyd, Reed, and Smith of Maryland. SATURDAY, April 4. On motion, by Mr. CAMPBELL, of Tennessee, the galleries were cleared, and the doors of the Senate Chamber closed. A message from the House of Representatives, by their committee, Messrs. CALHOUN and WILLIAMS--Mr. CALHOUN, chairman: _Mr. President_: The House of Representatives concur in the amendment of the Senate to the bill, entitled "An act laying an embargo on all ships and vessels in the ports and harbors of the United States, for a limited time." FRIDAY, April 10. _Executive Veto.--Returned Bill._ A message from the House of Representatives informed the Senate that the bill which passed the two Houses of Congress at the present session, entitled "An act providing for the trial of all causes pending in the respective district courts of the United States, in case of the absence or disability of the judges thereof," and presented to the President of the United States for his approbation, has been returned by the President of the United States, with the following objections: "Because the additional services imposed by the bill on the justices of the Supreme Court of the United States, are to be performed by them rather in the quality of other judges of other courts, namely, judges of the district courts, than in the quality of justices of the Supreme Court. They are to hold the said district courts, and to do and perform all acts relating to the said courts which are by law required of the district judges. The bill, therefore, virtually appoints, for the time, the justices of the Supreme Court to other distinct offices, to which, if compatible with their original offices, they ought to be appointed by another than the legislative authority, in pursuance of legislative provisions authorizing the appointments. "Because the appeal allowed by law from the decision of the district courts to the circuit courts, while it corroborates the construction which regards a judge of the one court, as clothed with a new office, by being constituted a judge of the other, submits for correction erroneous judgments, not to superior or other judges, but to the erring individual himself, acting as sole judge in the appellate court. "Because the additional services to be required may, by distances of place, and by the casualties contemplated by the bill, become disproportionate to the strength and health of the justices who are to perform them, the additional services being, moreover, entitled to no additional compensation, nor the additional expenses incurred, to reimbursement. In this view, the bill appears to be contrary to equity, as well as a precedent for modifications and extensions of judicial services, encroaching on the constitutional tenure of judicial offices. "Because, by referring to the President of the United States questions of disability in the district judges, and of the unreasonableness of delaying the suits or causes pending in the district courts, and leaving it with him in such cases to require the justices of the Supreme Court to perform additional services, the bill introduces an unsuitable relation of members of the judiciary department to a discretionary authority of the Executive department. "JAMES MADISON." And the House of Representatives, where the bill originated, have taken the question in the constitutional way, and have resolved that this bill do not pass. FRIDAY, April 17. _Temporary Non-Exportation._ On motion, by Mr. DANA, the injunction of secrecy was removed respecting the proceedings on the "Act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time." [_The proceedings are as follow_:] THURSDAY, April 9, 1812. The following confidential message was received from the House of Representatives, by their committee, Mr. SMILIE and Mr. PLEASANTS--Mr. SMILIE, chairman: _Mr. President_: The House of Representatives have passed a bill, entitled "An act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time;" in which bill they ask the concurrence of the Senate. The bill was read, and, on motion, by Mr. CAMPBELL of Tennessee, that the bill be now read the second time by unanimous consent, it was objected to as against the rule. _Ordered_, That the bill pass to a second reading. FRIDAY, April 10. The bill from the House of Representatives, entitled "An act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time," was read the second time, and referred to a select committee, to consider and report thereon; and Messrs. CAMPBELL of Tennessee, BRADLEY, and TAYLOR, were appointed the committee. Mr. CAMPBELL of Tennessee, from the committee, reported the bill last mentioned with an amendment. Whereupon, the bill was resumed, and considered as in Committee of the Whole, together with the amendment reported thereto by the select committee; and having agreed to the amendment, the President reported the bill to the House accordingly. On motion, by Mr. GOODRICH, that the further consideration of the bill be postponed until to-morrow, and that it be printed under an injunction of secrecy, for the use of the Senate, it was determined in the negative. On the question, Shall the bill pass to the third reading as amended? it was determined in the affirmative--yeas 16, nays 12, as follows: YEAS.--Messrs. Anderson, Bibb, Brent, Campbell of Tennessee, Condit, Crawford, Gaillard, Gregg, Howell, Leib, Pope, Smith of New York, Tait, Taylor, Turner, and Varnum. NAYS.--Messrs. Bradley, Dana, German, Giles, Gilman, Goodrich, Horsey, Hunter, Lambert, Lloyd, Reed, and Smith of Maryland. FRIDAY, April 17. _Mississippi Territory._ Mr. TAYLOR, from the committee to whom was referred on the 17th of March, the bill, entitled "An act to enable the people of the Mississippi Territory to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States;" and on the 6th instant, the bill to carry into effect the provisions of the eighth section of the act regulating the grants of land, and providing for the disposal of the lands of the United States south of the State of Tennessee, reported that the said bills be severally postponed to the first Monday in December next. The report is as follows: That in considering the subject referred to them, they could not avoid being struck with the immense size of the Territory proposed to be erected into a State, a size disproportionate to the size of any of the largest States which now compose our confederation. It embraces, in its present form, and without any extension, to the Gulf of Mexico, (as is proposed in the bill referred to us,) nearly six and a half degrees of geographical longitude, and four entire degrees of latitude, and affords an area of twice the surface of the State of Pennsylvania. Your committee are strongly impressed with the propriety and expediency of dividing the said Territory, so as to form of the same two States, whenever the population, within the limits of each section, shall render it just and proper; and they respectfully submit to the Senate the following divisional line, between the western and eastern sections of the said Territory, viz: up the Mobile river, to the point nearest its source, which falls on the eleventh degree of west longitude from the city of Washington; thence a course due north until the line intersects the waters of Bear Creek; thence down the said creek to its confluence with the Tennessee River; thence down the said river to the northern boundary line of the said Territory. By a view of the map of this country it will appear that the above divisional line will divide the Territory into nearly two equal parts, and it has, for the most part, a delineation by nature. By the 5th section of the 1st article of the treaty of cession from the State of Georgia the United States are bound to erect the said Territory into one State. It has, however, been suggested that the State of Georgia would not, upon a proper representation, withhold her consent to the proposed division. To the end, therefore, that an opportunity may be afforded to the State of Georgia to express this consent, by a legislative act of the said State, as they shall think proper, your committee recommend that the said bill shall be postponed to the first Monday in December next. MONDAY, April 20. _Death of the Vice President._ The PRESIDENT addressed the Senate as follows: "GENTLEMEN: Upon me devolves the painful duty of announcing to the Senate the death of our venerable fellow-citizen, GEORGE CLINTON, Vice President of the United States. "By this afflictive dispensation of Divine Providence the Senate is deprived of a President rendered dear to each of its members by the dignity and impartiality with which he has so long presided over their deliberations; and the nation bereaved of one of the brightest luminaries of its glorious Revolution." The Senate being informed of the decease of their distinguished fellow-citizen, GEORGE CLINTON, Vice President of the United States, do _Resolve_, That a committee be appointed, jointly with such as may be appointed on the part of the House of Representatives, to consider and report measures proper to manifest the public respect for the memory of the deceased, and expressive of the deep regret of the Congress of the United States on the loss of a citizen so highly respected and revered. _Ordered_, That Messrs. SMITH of New York, SMITH of Maryland, GERMAN, GILMAN, and BRADLEY, be the committee. _Ordered_, That the Secretary carry this resolution to the House of Representatives. A message from the House of Representatives informed the Senate that the House concur in the resolution of the Senate for the appointment of a joint committee "to consider and report measures proper to manifest the public respect for the memory of the Vice President of the United States," deceased, and have appointed a committee on their part. TUESDAY, April 21. On motion of Mr. SMITH of New York, _Resolved unanimously_, That, from an unfeigned respect to the late GEORGE CLINTON, Vice President of the United States, and President of the Senate, the Chair of the President of the Senate be shrouded with black during the present session; and, as a further testimony of respect for the memory of the deceased, the members of the Senate will go into mourning and wear a black crape round the left arm for thirty days. FRIDAY, April 24. _Recess of Congress._ Mr. BRADLEY, from the joint committee of the two Houses appointed on the subject of a recess, reported the business that demands the immediate attention of Congress, and the following resolution: _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That, during the present session of Congress, the President of the Senate and Speaker of the House of Representatives shall, on the 29th day of April instant, adjourn their respective Houses to Monday, the 18th day of May next, then to meet at the same place in which the two Houses are now sitting. On motion, by Mr. BRADLEY, the resolution was twice read by unanimous consent; and, on motion by Mr. POPE, amended, by striking out the words "eighteenth day of May next." On the question, Shall this resolution be engrossed, and read a third time as amended, it was determined in the affirmative--yeas 18, nays 13. SATURDAY, April 25. _Recess of Congress._ The Senate resumed the consideration of the resolution for a recess of Congress from the 29th inst. to the ---- day of ---- next. Mr. POPE moved to fill the blank with the 4th Monday in June. The most distant day would probably accommodate the greatest number of members; and this day would be sufficiently early to take measures necessary on the expiration of the embargo. Mr. ANDERSON said he had supposed the day fixed upon by the committee, viz: the 18th of May, would have been the day. He did not himself feel the necessity of any adjournment; but, if it must take place, it ought either to be for a short time, or for so long a time as equally to accommodate all. If it were to be for a short time, it would be merely for relaxation; if for a longer time, as was now proposed, he feared it would be considered as indicative of an intention to pause in the course of measures they had commenced, and produce an impression abroad, among the people, which was much to be deprecated. Mr. POPE said he was in favor of such a time being fixed on as should accommodate the greatest number of the members. As to the effect of an adjournment on the public mind, he imagined that the difference between a recess of twenty or thirty days would be very unimportant. Mr. G. W. CAMPBELL said it seemed to him something like bribing the members to obtain votes, to talk about lengthening the time so as to accommodate the greatest number of members. He could not conceive it consistent with the honor of the country that they should decide the question of adjournment on the mere ground of personal convenience; he considered the only question to be, whether a recess would have a good or bad effect on the public service. He had on a former occasion stated his objection to this step, that it would produce an ill effect on the public mind. Many misrepresentations have been already made to induce the public to believe you are not in earnest. An adjournment for any length of time would seem like deserting our posts, and will put the seal on this belief. Under this view, he must vote against the adjournment; but the longer was the recess, the worse would be the effect on the public mind. He should, therefore, vote for the shortest day. Mr. BRADLEY said he could not see that the proposed recess would be deserting their posts at all. The nation knew that the Government could not go to war without soldiers; and sitting here would certainly not restore peace. Congress had adopted many war measures, the execution of which they had put into the hands of the Executive; they had also authorized a loan of eleven millions. And while these measures were going on, could Congress, by staying here constantly, add to the number of men, or expedite the loan? If an enemy were to invade us, without any government at all, they would be promptly resisted. But, if we are going to war to redress grievances, to revenge injuries received, we should choose our own time. If we begin war before we have an army, it is bringing the nation to the last stage of degradation, not to consider at all the sufferings and losses which would be in such cases sustained. It would be a great error to attempt to put this country, by a forced vote of Congress, into war. You cannot lead this country to war as the butcher leads his flock to the slaughter-house. This is a government of opinion; the public sentiment will not be driven, but must be followed. Congress have certainly done as much for the present as they can. I wish to see the effect of the measures they have taken. The Executive is clothed with all the necessary powers to make preparation for war; and if the nation will not abide by us and support the measures of Congress, it is vain to say we can force the people into a war. I believe the people will be better satisfied with a recess than with our sitting here from day to day without doing any thing material, and there is nothing material at this moment to do. They are not irrational; they know that Congress have been in session six months; they must also foresee that when we come to war, the Council of the Nation must be perpetually in session; they will, therefore, not be dissatisfied at a short recess. If war be actually to take place at the expiration of the embargo, this, of all others, is the time for relaxation. The question on the insertion of the eighth day of June as the day of reassembling of the two Houses, was decided as follows: YEAS.--Messrs. Bradley, Condit, Crawford, Dana, German, Gilman, Goodrich, Gregg, Horsey, Hunter, Lambert, Lloyd, Pope, Reed, Robinson, Smith of New York, Turner, and Worthington--18. NAYS.--Messrs. Anderson, Bibb, Brent, Campbell of Tennessee, Cutts, Gaillard, Giles, Howell, Leib, Smith of Maryland, Tait, Taylor, and Varnum--13. So the motion was carried. WEDNESDAY, April 29. _Maritime Defence._ Mr. POPE asked and obtained leave to bring in a bill more effectually to protect the commerce and coasts of the United States; and the bill was read, and passed to the second reading. TUESDAY, June 9. _Rhode Island Resolutions._ Mr. HUNTER presented the resolutions of the Legislature of the State of Rhode Island and Providence Plantations, instructing their Senators and Representatives in Congress, to use their endeavors to avert the evils of war, to put our maritime frontier in a state of defence, and for the repeal of the embargo and restrictive system; and the resolutions were read. _New York Memorial._ Mr. SMITH of New York, presented the following petition of sundry inhabitants, merchants, and others, of the city of New York, praying that the embargo and non-importation laws be continued as a substitute for war against Great Britain: To the honorable the Senate and House of Representatives of the United States of America in Congress assembled, the memorial of the subscribers, merchants, and others, inhabitants of the city of New York, respectfully showeth: That your memorialists feel, in common with the rest of their fellow-citizens, an anxious solicitude for the honor and interest of their country, and an equal determination to assert and maintain them. That your memorialists believe that a continuation of the restrictive measures now in operation will produce all the benefits while it prevents the calamities of war. That when the British Ministry become convinced that a trade with the United States cannot be renewed, but by the repeal of the Orders in Council, the distress of their merchants and manufacturers, &c., their inability to support their armies in Spain and Portugal, will probably compel them to that measure. Your memorialists beg leave to remark, that such effects are even now visible; and it may be reasonably hoped that a continuance of the embargo and non-importation laws a few months beyond the fourth day of July next, will effect a complete and bloodless triumph of our rights. Your memorialists therefore respectfully solicit of your honorable body the passage of a law continuing the embargo, and giving to the President of the United States power to discontinue the whole of the restrictive system on the rescinding of the British Orders in Council. The conduct of France in burning our ships, in sequestrating our property entering her ports, expecting protection in consequence of the promised repeal of the Berlin and Milan decrees, and the delay in completing a treaty with the American Minister, has excited great sensation, and we hope and trust will call forth from your honorable body such retaliatory measures as may be best calculated to procure justice. John Jacob Astor Samuel Adams Howland & Grinnell E. Slosson Israel Gibbs Isaac Clason John Slidell John K. Townsend Andrew Ogden & Co. Thomas Storm Amos Butler Ebenezer Burrill Isaac Heyer Ralph Bulkley Samuel Bell John F. Delaplaine Peter Stagg David Taylor Abraham Smith Thomas H. Smith, jr. Andrew Foster Jacob Barker William Lovett William Edgar, jr. Samuel Stillwell Jacob P. Giraud John Hone John Kane Amasa Jackson William J. Robinson Joseph Strong Abraham S. Hallet Joshua Jones Frederick Giraud, jr. Robert Roberts John Crookes William Adee John T. Lawrence Joseph W. Totten Isaac Schermerhorn Alexander Ruden Joseph Otis Lewis Hartman Garret Storm George Bement S. A. Rich Hugh McCormick John Depeyster Gilbert Haight James Lovett Leffert Lefferts Augustus Wyncoop John W. Gale Thomas Rich Samuel Marshall Elbert Herring. After the memorial had been read, Mr. TAYLOR said, that the respectability of the subscribers to a petition presented to this body, and the importance of the matter therein contained, had, on various occasions, been used as inducements to us to give such petition a respectful _disposition_ in the course of our proceedings. He recollected a case in point. It was the case of the petition of an eminent merchant of Massachusetts, presented by an honorable Senator from that State, and which at the suggestion of that honorable gentleman was, by the Senate, ordered to be printed. He was of opinion that the petition just read ought not to be treated with less attention. That he had seen the petition, and had inquired into the character of its subscribers--and had been informed that the fifty-eight signers to it were among the most respectable, wealthy, and intelligent merchants of the city of New York. There are to be found in that list the names of two presidents of banks; three presidents of insurance companies; thirteen directors of banks: besides other names of pre-eminent standing in the mercantile world. They had all united in the sentiments contained in the petition, notwithstanding that there existed among them a difference in political opinions--for he understood that of the petitioners forty-two were federal and sixteen republican. Mr. T. added, that he considered some of the sentiments contained in the petition as of the highest importance. He hailed it as an auspicious occurrence, that these honorable merchants, in praying that the evils of war might be averted from them and from the nation, had nevertheless held fast to the principle of resistance to the aggressions and unhallowed conduct of Great Britain towards our nation--and had exercised the candor and firmness to bear testimony to the efficiency of the restrictive system for obtaining a redress of our wrongs, and of course to the integrity and honor of those who had imposed this system for that purpose. He hoped that the example of these petitioners would tend to counteract those strenuous and unremitting exertions of passion, prejudice, and party feeling, which had attempted to stamp upon the majority in Congress the foul and unjust censure of being enemies to commerce. That, however unfashionable and obstinate it might appear, he still believed that the embargo and non-importation laws, if faithfully executed, were capable of reaching farther than our cannon. We were at this very time tendering an urgent argument, to be felt by each city, village and hamlet in England. This touching to the quick the vital interests of that empire, would demonstrate to the people at least the folly and absurdity of the Orders in Council. The ordeal of the twenty weeks of scarcity, which the people of that unhappy country are undergoing, to relieve which, but for the madness and folly of their rulers, every yard of American canvas would be spread to the gales: the thousands of starving manufacturers thrown out of employ for want of our custom, which custom, but for the injustice of their masters, we were willing to give, now feel the efficiency of the restrictive system. These matter-of-fact arguments want no sophistry nor long speeches to give them weight. But Great Britain is proud, and will never yield to this sort of pressure. Hunger has no law. Where was her pride during the last year when she exported to her enemy on the continent more than eleven millions of pounds sterling for provisions; and meanly truckling to her enemy, consented to buy the privilege of laying out her guineas for bread; and actually submitted on the compulsion of Napoleon to buy the wines, brandies, and silks of France, which she did not want! This restrictive system, when commenced under the former embargo law, encountered every opposition among ourselves, which selfish avarice, which passion and party rage could suggest; and so successful were its assailants that while it was operating with its fullest effects, (which the prices current of that day will show,) some of its greatest champions in the National Legislature abandoned it--yes, sir, in the tide of victory they threw down their arms. How were the mighty fallen, and the shield of the mighty vilely cast away! The disavowal of Erskine's arrangement was the consequence of this retreat. But it may be said that the sentiments in their petition were extorted by the apprehension of a greater evil--war. In all our trials, those who had not predetermined to submit to Great Britain must have anticipated this alternative. Let those who by their acrimony, sneers, and scoffs, have thrown away this chief defence of our nation, be held responsible for the compulsion they have imposed on us to take this dire alternative. He said that although he was unwilling to abate a single pang which we might legally inflict upon our enemy, and might at the proper time oppose any thing like the swap proposed of one system for another, when we had the power and the right to impose upon our enemy both the one and the other, he nevertheless thought the petition was deserving of the attention which he now moved it should receive. He moved that the petition should be printed. The motion was agreed to; and the Senate then adjourned. THURSDAY, June 11. _General Wilkinson's Accounts._ The Senate resumed the consideration of the resolution reported by the committee on the memorial of General James Wilkinson, which is as follows: _Resolved_, That the proper accounting officer of the Department of War be directed, in the settlement of General Wilkinson's account, to place to his credit the sum of four thousand and thirty-six dollars seventy-seven cents. And the resolution was agreed to, and recommitted to the original committee, with instruction to bring in a bill accordingly. FRIDAY, June 12. _Massachusetts Memorial._ Mr. LLOYD presented a resolution of the House of Representatives of Massachusetts, passed June 2d, instant, expressing their opinion "that an offensive war against Great Britain, under the present circumstances of this country, would be in the highest degree impolitic, unnecessary, and ruinous;" also, a memorial of the said House of Representatives, passed by a majority of one hundred and sixty-six, on the same subject; and the resolution and memorial were read, and ordered to be printed for the use of the Senate. They are as follows: COMMONWEALTH OF MASSACHUSETTS: IN THE HOUSE OF REPRESENTATIVES, _June 2, 1812_. _Resolved_, As the opinion of this House, that an offensive war against Great Britain, under the present circumstances of this country, would be in the highest degree impolitic, unnecessary, and ruinous; that the great body of the people of this Commonwealth are decidedly opposed to this measure, which they do not believe to be demanded by the honor or interests of the nation; and that a committee be appointed to prepare a respectful petition to be presented to Congress, praying them to arrest a calamity so greatly to be deprecated, and, by the removal of commercial restrictions, to restore, so far as depends on them, the benefits of trade and navigation, which are indispensable to the prosperity and comfort of the people of this Commonwealth. TIMOTHY BIGELOW, _Speaker_. THURSDAY, JUNE 18. _Injunction of Secrecy on War Measures removed._ The injunction of secrecy thereon having been removed, on motion, by Mr. ANDERSON, twelve hundred copies of the confidential Message of the President of the United States of the first of June instant, were ordered to be printed for the use of the Senate. _Certain confidential proceedings of the Senate, since first June, are as follow, the injunction of secrecy having been removed_: MONDAY, June 1, 1812. A confidential Message was received from the PRESIDENT OF THE UNITED STATES, as follows: [For this Message, see the _Supplemental Journal_ of the Proceedings of the House of Representatives, under the date of June 1, 1812, _post_.] FRIDAY, June 5. _Declaration of War against Great Britain._ A confidential Message was received from the House of Representatives, by Messrs. MACON and FINDLAY, two of their members--Mr. MACON, chairman: _Mr. President_: The House of Representatives have passed a bill, entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories;" in which they ask the concurrence of the Senate; and request that the bill be considered confidentially. An act declaring War between Great Britain and her Dependencies, and the United States and their Territories. _Be it enacted by the Senate and House of Representatives of the United States of America_, _in Congress assembled_, That war be and the same is hereby declared to exist between Great Britain and her Dependencies, and the United States and their Territories; and that the President of the United States is hereby authorized to use the whole land and naval force of the United States to carry the same into effect; and to issue to private armed vessels of the United States commissions or letters of marque and general reprisal, in such form as he shall think proper, and under the seal of the United States, against the vessels, goods, and effects of the Government of Great Britain, of its subjects, and of all persons inhabiting within any of its territories or possessions. On motion, the bill was twice read by unanimous consent; and, on motion by Mr. Leib, it was referred to the committee appointed the 1st instant, on the confidential Message of the President of the United States of the same date, to consider and report thereon. TUESDAY, June 9. On motion by Mr. ANDERSON, the bill entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories," was considered as in Committee of the Whole. Mr. GAILLARD was requested to take the Chair; and, after debate, a motion was made by Mr. GREGG, that the bill be recommitted, for further amendment, to the committee who have under consideration the Message of the President of the United States of the 1st June. And, after debate, the President resumed the Chair, and the Senate adjourned. WEDNESDAY, June 10. Mr. GAILLARD was requested to take the Chair. The Senate resumed, as in Committee of the Whole, the bill, entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories." Mr. GREGG, by permission, amended his motion for recommitting the bill to the committee appointed on the confidential Message of the President of the United States, of the 1st of June, as follows: _Resolved_, That the bill entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories," be recommitted to the committee to whom was committed the Message of the President, of the 1st instant, with instructions to modify and amend the same, in such manner that the President of the United States shall have power to authorize the public armed ships and vessels of the United States to make reprisals upon the public and private ships and vessels, goods, and merchandise, belonging to the Crown of the United Kingdom of Great Britain and Ireland, or to the subjects thereof; and also to grant letters of marque and reprisal, under suitable regulations, to be provided in the bill, to private armed ships and vessels to make like reprisals. THURSDAY, June 11. Mr. GAILLARD was requested to take the Chair. On motion by Mr. ANDERSON, the bill from the House of Representatives, entitled "An act declaring war between Great Britain and her Dependencies, and the United States and their Territories," was resumed, and considered as in Committee of the Whole, together with the motion yesterday submitted by Mr. GREGG; and on the question to agree to the motion, it was determined in the affirmative--yeas 17, nays 13, as follows: YEAS.--Messrs. Bayard, Condit, Dana, German, Giles, Gilman, Goodrich, Gregg, Horsey, Howell, Hunter, Lambert, Leib, Lloyd, Reid, Smith of New York, and Worthington. NAYS.--Messrs. Anderson, Bibb, Campbell of Tennessee, Crawford, Cutts, Franklin, Gaillard, Pope, Smith of Maryland, Tait, Taylor, Turner, and Varnum. Whereupon, Mr. CRAWFORD resumed the Chair; and, on motion by Mr. Anderson, it was ordered that the committee to whom this bill is recommitted have leave to sit immediately. FRIDAY, June 12. _Reprisals on British Commerce._ Mr. ANDERSON, from the committee to whom was recommitted the bill, entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories," with instructions to modify and amend the same, in such manner that the President shall have the power to authorize the public armed ships and vessels of the United States to make reprisals upon the public and private ships and vessels, goods, and merchandise, belonging to the Crown of the United Kingdom of Great Britain and Ireland, and to the subjects thereof; and also to grant letters of marque and reprisal, under suitable regulations, to be provided in the bill, to private ships and vessels to make reprisals, agreeably to said instructions. SATURDAY, June 13. _Declaration of War._ Mr. GAILLARD was requested to take the Chair; and on motion, by Mr. ANDERSON, the consideration of the bill, entitled "An act declaring war between Great Britain and her Dependencies, and the United States and their Territories," was resumed, as in Committee of the Whole; and having agreed to sundry amendments, the President resumed the Chair; and Mr. GAILLARD reported the bill with amendments, which were considered in Senate and agreed to. A motion was made by Mr. GERMAN, to postpone the further consideration of the bill to the first Monday in November next. Mr. GERMAN addressed the Chair as follows: Mr. President: I made the motion to postpone the consideration of the bill now before us, from a conviction that it will be extremely injurious to the country to pass it at this time. I feel, sir, that the State I have the honor to represent has a peculiar interest in the event of this question; and I also feel the weight of the interest which the nation at large has at stake, in the event of the passage of this bill. I therefore consider it a duty I owe my constituents, to use every reasonable exertion in my power to prevent the object of that bill, until the country is better prepared to carry it into effect. As I presume the war, if declared, is intended to be an offensive one, I will, to establish the propriety of my motion, take a general view of the situation of this country; of its means to carry on offensive operations, as well as to defend itself, and of the situation and relative strength also of the country we are required to make war upon. I am ready to allow, Mr. President, that both Great Britain and France have given us abundant cause for war; on this occasion, therefore, I shall dispense with using any argument which might serve to show, that if we were even in a state of preparation, and possessed the means of insuring a favorable issue, it would be bad policy for this country, at the present time, to enter into war with Great Britain, although perhaps many weighty reasons might be adduced in support of such argument. I will first call the attention of the Senate to the ability and strength of the nation we are about, by this bill, to declare war against. Gentlemen ought to recollect, that Great Britain has been almost constantly engaged in war for twenty years past against one of the most powerful nations that ever existed; and for a considerable part of that time, the energies of her enemy have been directed by war's favorite genius--NAPOLEON, who has succeeded in uniting nearly the whole force of the Continent of Europe against her: against that very nation which we are about to assail; and what has been the effect? Is Great Britain less powerful now, than she was twenty years ago? No, sir, this constant warfare has increased her powers instead of diminishing them. At the commencement of the war, France was nearly her equal on the ocean, and several other nations of Europe maintained a powerful naval force. But what is their situation at present? Has not Great Britain driven them all from the ocean? And does she not remain sole mistress? I ask gentlemen, if her ability to carry on a distant war by land or sea, has diminished? The answer must be that it has increased with her navy, and extended with her dominion. Great Britain now commands the strength and resources of most of the West India Islands, and many of the islands in the Indian Ocean. She controls the destinies of more than thirty millions of people on the Continent of Asia. And she has, at this time, or will have, if we engage in a war with her, the exclusive benefit of the trade of the world; and under these circumstances possesses the ability to carry on a war in distant countries across the ocean, beyond any nation ever heard of. These considerations, Mr. President, lead me to the view of our situation and means of defence, and of our ability to carry immediate war into the colonies of Upper and Lower Canada. I will first consider the situation of our maritime frontier, beginning at New Orleans, and examine the situation of that place. We learn from the War Office that there is _little_ rising of one hundred regular troops stationed near the city for its defence. Now I will ask any gentleman if that paltry force is sufficient for that object; and if it will not be in the power of the British to take possession of that city within sixty days after your declaration of war against them? If gentlemen calculate on the goodness and forbearance of the enemy, I think they will be deceived. Great Britain is a wily, active nation. She has been trained to war. She will not measure her steps and movements by ours; if we are not prepared to defend our seaports, she will not wait until we are; and should she get possession of New Orleans, it will cost much blood and treasure to dislodge her. Passing northerly along our coast, let us see what is the situation of our most valuable cities. Charleston and Norfolk, as well as many other places of less consequence, are found exposed to maritime attacks. And when we reach the city of New York (the nation's great emporium of trade) do we, on viewing its situation, and strength of the public works for its defence, find it in a perfect state of security? No, sir, unless the greatest part of your frigates are stationed there, to aid your fortifications, and gunboats, it will fall a prey to the enemy. It can be assailed by a small fleet, with every prospect of success. The only resistance they would meet with would be in passing the fortifications on Staten Island, and perhaps a few shots from Bedlow's and Ellis's Islands. They might soon place themselves abreast the works at the upper end of the city, the weakest of them all. And I have no doubt two seventy-fours might silence this work in twenty or thirty minutes. They would then meet with no other resistance than from travelling guns on the shore and from the docks. The result would probably be, that the city would be set on fire, or a contribution extorted from its inhabitants. I will now pass on to Rhode Island. Does the prospect of security there flatter us? No, sir. I am told by competent judges that nothing short of a force of from three to five thousand men can defend that island. Boston, it is said, can be defended, and is, perhaps, the only secure place of considerable consequence on the seaboard. In viewing the situation along the province of Maine, and our northern frontier up the river St. Lawrence, and the Lakes to Fort Malden, and from thence to the Mississippi, do we not find almost every point and place where there are inhabitants, subject to the incursions of the enemy? Have they not more troops on and near the line than we have? Yes, sir, they have ten to our one, and a militia which the Government of Canada have been fully vigilant in training. I understand that ever since the prospect of war began to thicken in the political horizon, they have trained their militia three or four times a month, and have paid them daily wages for their services. Not so, sir, with our militia--they have, it is true, been called into the public service to do the duty of regular troops; and what is now their situation? Sixteen hundred of the militia of the State of New York have been ordered into public service, on the frontiers of that State, and have, as I am informed, marched to their place of destination. There we find exhibiting a spectacle that would wound the feelings of the most callous man--_without hats, without blankets to cover them, without camp-kettles to cook the miserable provisions furnished them by the Government contractors or any one necessary for camp equipage_. _Their officers with the utmost difficulty preventing their marching home for self-preservation._ Here, Mr. President, I wish to call the attention of the Senate to the propriety and constitutionality of calling out this detachment of militia at a time when no enemy menaced an invasion. The constitution only authorizes the General Government to call out the militia to suppress insurrection, enforce the laws, and repel invasion. And I would ask whether either of these events had happened when this corps of militia were ordered out? No. It is well known that no such emergency existed. But they have this miserable consolation, that they are to receive six dollars and two-thirds a month for their services, finding their own clothes, arms and accoutrements. I do not mention these things with a wish to discourage the militia from serving their country when necessary, nor do I believe defending them in their constitutional rights will have that effect, for I am fully aware that there is no class of citizens more patriotic or willing to defend their country than they are, and will be so found when the safety of it shall really demand their services. I will now resume the consideration of our situation upon the Lakes to Detroit and Fort Malden. Here it must be remembered that the British command the Lakes. We are told that Governor Hull is marching to the defence of Detroit with twelve hundred militia from the State of Ohio, together with four hundred regular troops, formed and disciplined for action by the brave Colonel Boyd. These troops, I hope, will be better supplied and provided for than those on the frontier of New York. It is whispered by some of the favorites who are suffered to know the projects of our Government, that the British have sent a part of their regular troops, together with a number of Indians, from Fort Malden to Fort Erie, near the Falls of Niagara; and this is taken as certain evidence of the weakness of the garrison at Fort Malden, and that that fort may consequently be surprised and taken by Governor Hull with little difficulty. Now, I draw the exact contrary conclusion from this circumstance; for the British must have known that Governor Hull was on his march to Detroit; and if they had been weak at Fort Malden they never would have detached part of their force and sent it to the aid of Fort Erie. But presuming they had not heard of Governor Hull's march, and that they had left that fort comparatively defenceless, they will assuredly learn it soon enough to have the detachment return by water before Governor Hull can reach Malden. And if in the attempt to take Fort Malden, Governor Hull should meet with a defeat, the consequences will be alarming; for no reinforcement can be sent him, nor any assistance afforded soon enough to prevent a disastrous termination of the expedition. In that case the British, with a partial aid from the Indians, might cross the river and take possession of Detroit; and if they should then obtain the assistance of the Indians generally, it will be in their power to drive in all the frontier settlements of Ohio; and there can be little doubt when this war is once commenced that nearly all the Indians will flock to the British standard. MONDAY, June 15. The Senate resumed the consideration of the bill, entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories," together with the motion made by Mr. GERMAN to postpone the further consideration thereof until the first Monday in November next: And on the question to agree to the motion, it was determined in the negative--yeas 10, nays 22, as follows: YEAS.--Messrs. Bayard, Dana, German, Gilman, Goodrich, Horsey, Hunter, Lambert, Lloyd, and Reed. NAYS.--Messrs. Anderson, Bibb, Brent, Campbell of Tennessee, Condit, Crawford, Cutts, Franklin, Gaillard, Giles, Gregg, Howell, Leib, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor Turner, Varnum, and Worthington. On motion, by Mr. LEIB, to amend the bill, as follows: [The amendment was to authorize privateering both against Great Britain and France.] On the question. Shall this bill pass to a third reading as amended? it was determined in the affirmative--yeas 19, nays 13, as follows: YEAS.--Messrs. Anderson, Bibb, Brent, Campbell of Tennessee, Condit, Crawford, Cutts, Franklin, Gaillard, Giles, Gregg, Leib, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, and Varnum. NAYS.--Messrs. Bayard, Dana, German, Gilman, Goodrich, Horsey, Howell, Hunter, Lambert, Lloyd, Pope, Reed, and Worthington. TUESDAY, June 16. _Declaration of War._ The amendments to the bill from the House of Representatives, entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories," were reported by the committee correctly engrossed. Mr. BAYARD moved to postpone the further consideration of the bill to the thirty-first day of October next. The motion did not oppose or deny the sufficiency of the causes, or the policy of the war. It went only to affirm what he trusted the course of his observations would render very evident, that this was not a time at which war ought to be declared. He indulged a confidence, that upon so great an occasion the Senate would not be impelled to act by any little passions, nor by any considerations which did not arise out of an extended and distinct view of the interests of the country. It is not enough that we have cause of war; we must see that we are prepared, and in a condition to make war. You do not go to war for the benefit of your enemy, but your own advantage; not to give proofs of a vain and heedless courage, but to assert your rights and redress your wrongs. If you commence hostilities before you are prepared to strike a blow, and while your cities, your territory, and your property on the ocean, are exposed to the mercy of a Government possessing vast resources of war, what can you expect but to add new distresses, defeat, and disgrace to the wrongs of which you complain? It is a strange motive for war--a wish to gratify the rapacity, to swell the triumphs, and to increase the insolence of the enemy. Mr. B. said, that neither the Government nor the people had expected, or were prepared for war. Even at this moment, the general opinion abroad was, that there would be no war, the mercantile and trading world had continued to act upon that opinion. Nor could people be persuaded that an unarmed nation was about to attack a nation armed cap-a-pie. No man had laid out his account for this war, and every one would be taken by surprise and unprepared for its shock. You have at this moment an immense property abroad, a great portion of it in England, and part floating on the ocean and hastening to your ports. The postponement proposed might save a great portion of this property, and bring home the seamen now absent from the country. Gentlemen would remember the number of ships which left our ports on the eve of an embargo. These vessels had not had time to perform their voyages, and the greater part of them were still abroad. He knew that some members had no commiseration for the merchant who had dared to escape the embargo, and who had disregarded the salutary precautions, designed, as it was said, for his security. But he did not think it surprising, nor culpable, that those whose property consisted in ships, should be averse to seeing them rotting at the wharves, and even disposed to incur risks to find employment for them abroad. Even, however, if it should be thought that the merchants had acted with indiscretion and folly, it is the part of a parental Government, such as this ought always to be, not to punish the citizens for their misfortunes, but to guard them against the effect of their errors. Besides, a loss of individual property was a loss to the State, as the public strength was derived from individual resources. He stated that the question of war had been doubtful till the present moment. He did not believe that the President himself expected war at the opening of the session, nor for a long time after. A menacing language was held out; but the hopes of an accommodation were far from being abandoned. Much was expected from the Prince Regent's accession to his full powers. A change of Ministry was not doubted, and it was thought that in the change of men, there would have been found such a change of principles and measures, that the differences between the two Governments might be compromised and settled. This expectation was protracted till it became plainly evident that the Prince did not intend to change his father's Ministers, nor to depart from their principles or measures. When this discovery was made, the Administration had proceeded too far to recede. Desperate as the course was which now alone remained to be pursued, they supposed they were obliged to advance or become the object of reproach and scorn both to friends and foes. This necessity they had brought upon themselves, but it was too late to consider whether the condition might have been avoided; they were pledged in this state of events to attempt to extort from Great Britain by force the concession of those points which their arguments had failed in persuading her to yield. He had no doubt but that, some months past, the Cabinet had seriously determined upon resorting to hostilities. But the concurrence of Congress was to be obtained, and whether a majority of both Houses could be brought to take the daring and hazardous step, no man in or out of the Government, without the gift of prophecy, could have predicted. The public mind had been so repeatedly distracted and deceived by boisterous speeches, and bold but ephemeral resolutions, that it had sunk into a state of apathy, and was no longer excited even by the sound of war echoed in the ministerial paper from the proceedings of Government. When the bill before us was first brought up from the other House, it was the opinion of very few that it would obtain the support of a majority of this body; and, even now, it was likely to pass, not because it was approved by a majority, but of the differences of opinion which existed among gentlemen as to other courses which had been proposed. If, with the light and information possessed in this body as to the views and designs of the Cabinet and of Congress, it has been doubtful among ourselves whether the Government would resort to war, how was it to be known by our merchants, or any other class of society unacquainted with the intentions and secret proceedings of those exercising the powers of the Government, that the nation would be wantonly plunged into a sudden war? He had heard it said, that the embargo was a sufficient notice of the design of the Government to resort to hostilities upon its expiration, and that the people must be infatuated, who, after such warning, were not apprised of the approaching crisis. But it is too recently and deeply in our recollection to be forgotten, that this is not the first embargo we have experienced, and which, though of longer duration, we saw pass away without being followed by war. The language held there, as to people out of doors who have doubted of the war, is retorted by the public voice with equal confidence and on better grounds. They rely upon your integrity and wisdom, and say that Congress cannot be so infatuated, destitute as they are of the means of aggression or defence, to draw upon themselves a war with one of the most powerful and formidable nations on the globe. If a war with Great Britain be thought unavoidable, yet, as she leaves to us the time of commencing it, surely we ought to select that time when the first shock shall be least disastrous, and can best be resisted. Why should we hurry into a war from which nothing but calamity can be expected? There is no danger that the redress of our wrongs, or the assertion of our rights, will be barred by the limitation of time. No time has existed for years past when we had less cause to complain of the conduct of Great Britain. Her vessels of war had all been withdrawn from our coast, as he presumed, in order to avoid collisions and hostility. If the war be suspended till November, the Government and the people will both be better prepared to sustain it. He was not a friend to the restrictive system, but with a choice out of evils, he should prefer the embargo to war. Postpone the war, and we will submit to the embargo till November. This will furnish time for the return of your ships and seamen; and if, at the same time, you will abandon the non-importation act, you will replenish your Treasury with at least twelve millions of dollars, and restore to your citizens sixty millions now abroad, and in danger of being lost. It appeared to him that the course which had been pursued was the most preposterous imaginable. For eighteen months past, we had been sending our property out of the country, and not suffering it to return; and, while contemplating a war with Great Britain, we saw our effects to an immense amount accumulating in that kingdom, liable at any moment, to fall a prey to the Government, and to be employed in support of the war against us. He asked, why rush with this precipitancy into the war? Are you provided with means to annoy the enemy, or to defend yourselves? Have you an army or navy which can make any impression? Are your exposed towns fortified and garrisoned? Was any nation ever less prepared for war? It would require the whole military force that you now possess to constitute an adequate defence for New Orleans, New York, and Newport. It is very well known that the General who will command at New Orleans has declared to the Government, that he will not be answerable for the security of the place with less force than ten thousand men, which is equal to all the effective troops yet raised. It would be natural to suppose that no Government would declare war till it was prepared to attack its enemy. In peace we require no defence, and shall we declare war in order to defend ourselves? But what blow are you prepared to strike? Were you able in the summer to recruit your army of twenty-five thousand men, could it be employed in any service in the course of this year? A soldier is not made in a day. The authority of a foreign officer, now in this country, of the highest military reputation, he had heard frequently cited, that it required at least fourteen months to form a soldier of a recruit. This remark applied to France, where the officers have generally received a military education, and where there are so many models to imitate, and so many instructors to teach. But here the officer is to form as well as the soldier. The officer has to learn his lesson first, before he can prescribe the task of the soldier. You may possibly have a herd of men, but you can have no army to lead into service this season; and if this herd be led against disciplined troops, you can expect nothing but defeat and disgrace. But you have not got, nor can you get the men during the present year. These are not the days of Cadmus. It will require great patience and industry, and a considerable length of time, to collect twenty-five thousand men. Have you the least prospect, if you declare war, of attacking Canada this season? It is impossible that you can do it with effect. You will be sufficiently occupied in defending your frontiers against the savages. It is not on land then that you expect immediately to assail your enemy. Is it on the ocean that the impression is to be made? You have twenty vessels of war--Britain upwards of a thousand. What will avail the activity or gallantry of your officers and seamen against such disparity of force? Your little Navy must fall immediately, or be driven from the ocean. Some gentlemen indulge great expectations from privateers; but has Great Britain any unarmed or unprotected trade which they can attack? Privateers have no other object than plunder and booty. They avoid armed vessels--and, defended as is the British commerce in every part of the world by her great naval force, it is little to be expected that privateering will be attended with much success or encouragement. But while we are searching for the means of annoying the commerce of Britain, does it become us to overlook at this moment the condition of our own? A valuable part of the trade from beyond the Cape of Good Hope has not yet arrived. Of the numberless vessels which sailed upon the eve of the embargo, few have returned. Your merchant vessels are without convoy and utterly defenceless. Your condition, therefore, is, that with more commerce exposed, your adversary will possess greater means of annoyance, and the consequence must be, that we shall lose infinitely more than we can expect to gain. Under such circumstances, what should hurry us into the war? Are gentlemen afraid if they wait till November the world will not last long enough to afford them time to gratify in war their mighty resentment against Britain? He believed, as he hoped, that there was no honorable gentleman on the floor who would not live long enough to have a complete surfeit of the war, though it should be postponed for a few months. The question on postponement was determined in the negative--yeas 11, nays 21. On motion, by Mr. BAYARD, to postpone the further consideration of the bill to the third day of July next, it was determined in the negative--yeas 9, nays 23. On motion by Mr. BAYARD, to postpone the further consideration of the bill to Monday next, it was determined in the negative--yeas 15, nays 17. On motion, that the Senate adjourn, it was determined in the affirmative--yeas 18, nays 14. So the Senate adjourned to 11 o'clock to-morrow. THURSDAY, June 18. On motion, by Mr. Varnum, _Resolved_, That the injunction of secrecy, in relation to the confidential Message of the President of the United States of the first instant, and also in relation to the private and confidential proceedings of the Senate since that date, be removed. [_End of the confidential proceedings._] FRIDAY, June 26. _Treasury Notes._ The amendment to the bill, entitled "An act authorizing the issuing of Treasury Notes," was reported by the committee correctly engrossed, and the bill was read a third time as amended. On the question, Shall this bill pass as amended? it was determined in the affirmative--yeas 23, nays 8, as follows: YEAS.--Messrs. Anderson, Bibb, Bradley, Brent, Campbell of Tennessee, Condit, Crawford, Cutts, Franklin, Gaillard, Giles, Gregg, Howell, Lambert, Leib, Reed, Robinson, Smith of New York, Tait, Taylor, Turner, Varnum, and Worthington. NAYS.--Messrs. Bayard, Dana, German, Gilman, Goodrich, Hunter, Lloyd, and Pope. SUNDAY, July 5. _Volunteers Bill._ The amendment to the bill, entitled "An act supplementary to the act, entitled 'An act authorizing the President of the United States to accept and organize certain volunteer military corps,'" having been reported by the committee correctly engrossed, the bill was read a third time as amended. On the question, Shall this bill pass as amended? it was determined in the affirmative--yeas 14, nays 6, as follows: YEAS.--Messrs. Anderson, Bibb, Brent, Condit, Crawford, Franklin, Gaillard, Giles, Howell, Robinson, Smith of New York, Tait, Taylor, and Varnum. NAYS.--Messrs. Bayard, Gilman, Goodrich, Leib, Lloyd, and Smith of Maryland. So it was resolved, that this bill pass with an amendment. MONDAY, July 6, _6 o'clock, p.m._ _Recess of Congress, and adjournment._ The Senate proceeded to consider the resolution from the House of Representatives for the appointment of a joint committee to wait on the President of the United States, and notify him of the intended recess, and concurred therein, and Messrs. ROBINSON and ANDERSON were appointed a committee on the part of the Senate. The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate of the United States_: I transmit to the Senate copies and extracts of documents in the archives of the Department of State, falling within the purview of their resolution of the fourth instant, on the subject of British impressments from American vessels. The information, though voluminous, might have been enlarged with more time for research and preparation. In some instances it might, at the same time, have been abridged, but for the difficulty of separating the matter extraneous to the immediate object of the resolution. JULY 6, 1812. JAMES MADISON. The Message and documents were read, and ordered to be printed for the use of the Senate. A message from the House of Representatives informed the Senate, that the House, having finished the business before them, are about to adjourn. Mr. ROBINSON, from the committee, reported that they had waited on the President of the United States, who informed them that he had no further communications to make to the two Houses of Congress. _Ordered_: That the Secretary inform the House of Representatives that the Senate, having finished the legislative business before them, are about to adjourn. Agreeably to the joint resolution, the PRESIDENT then adjourned the Senate, to meet on the first Monday in November next. _Executive Proceedings._ [Confidential.] SATURDAY, June 20, 1812. A message from the House of Representatives, by Mr. HARPER and Mr. FISK, two of their members--Mr. HARPER, chairman. _Mr. President_: The House of Representatives have passed a "resolution authorizing the President of the United States to issue a proclamation to the inhabitants of the British American Continental Provinces," in which they request the concurrence of the Senate. The resolution was read, as follows: _Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled_, That in case it shall be deemed necessary, in order to vindicate the just rights, or to secure the safety of the United States, to invade the provinces of Upper and Lower Canada, Nova Scotia, and New Brunswick, or either of them, the President of the United States be, and he hereby is authorized and empowered to issue a proclamation, addressed to the inhabitants of said provinces, assuring them, in the name of the people of these States, that in case the said provinces, or any of them, shall come into the possession of this Government, the inhabitants of such province or provinces shall be secured and protected in the full enjoyment of their lives, liberty, property, and religion, in as full and ample manner as the same are secured to the people of the United States by their constitutions; and that the said proclamation be promulgated and circulated, in the manner which, in the opinion of the President, shall be best calculated to give it general publicity. _Ordered_, That the resolution pass to a second reading. FRIDAY, June 26. _Occupation of the Floridas._ A message from the House of Representatives by Messrs. MITCHILL and HALL, two of their members. _Mr. President_: The House of Representatives have passed a bill, entitled "An act authorizing the President to take possession of a tract of country lying south of the Mississippi Territory and of the State of Georgia, and for other purposes," in which they request the concurrence of the Senate, and that the bill be considered confidentially. The bill last brought up for concurrence was read, as follows: "An Act authorizing the President to take possession of a tract of country lying south of the Mississippi Territory and of the State of Georgia, and for other purposes. "_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_: That the President be, and he is hereby authorized to occupy and hold, the whole or any part of East Florida, including Amelia Island, and also those parts of West Florida which are not now in possession and under the jurisdiction of the United States. "SEC. 2. _And be it further enacted_: That, for the purpose of occupying and holding the country aforesaid, and of affording protection to the inhabitants, under the authority of the United States, the President may employ such parts of the military and naval force of the United States as he may deem necessary. "SEC. 3. _And be it further enacted_: That, for defraying the necessary expenses, one hundred thousand dollars are hereby appropriated, to be paid out of any moneys in the Treasury not otherwise appropriated, and to be applied to the purposes aforesaid, under the direction of the President. "SEC. 4. _And be it further enacted_: That, until further provision shall be made by Congress, the President shall be, and he hereby is empowered to establish within the country he may acquire by this act, a temporary government, the civil and military authorities of which shall be vested in such person and persons as he may appoint, and be exercised in such manner as he may direct: _Provided_: That he shall take due care for the preservation of social order, and for securing to the inhabitants the enjoyment of their personal rights, their religion, and their property: _And provided, also_: That the section of country herein designated, that is situated to the Eastward of the river Perdido, may be the subject of further negotiation." _Ordered_: That it pass to a second reading. THURSDAY, July 2. Agreeably to the order of the day, the bill, entitled "An act authorizing the President to take possession of a tract of country lying south of the Mississippi Territory and of the State of Georgia, and for other purposes," was resumed, and considered as in Committee of the Whole; and Mr. GAILLARD was requested to take the Chair. On motion by Mr. CRAWFORD, he was permitted to amend his motion, made yesterday, as follows: "_And be it further enacted_: That if the United States, in the prosecution of the present war against the United Kingdom of Great Britain and Ireland, should obtain possession of the British provinces in North America, or either of them, that the President of the United States be, and he is hereby authorized and empowered to establish within the same a temporary government; and the military, civil, and judicial powers thereof, shall be vested in such person and persons, and be exercised in such manner as he may direct, for the protection and maintenance of the inhabitants of such province or provinces, in the full enjoyment of their property, liberty, and religion: _Provided_: That the principles upon which such temporary government shall be established, shall form no obstacle to the restoration of peace between the two nations." And, on motion to agree to the amendment, it was determined in the affirmative--yeas 20, nays 10, as follows: YEAS.--Messrs. Anderson, Bibb, Bradley, Brent, Campbell of Tennessee, Condit, Crawford, Cutts, Franklin, Gaillard, Giles, Howell, Leib, Pope, Robinson, Tait, Taylor, Turner, Varnum, and Worthington. NAYS.--Messrs. Bayard, German, Gilman, Goodrich, Horsey, Hunter, Lambert, Lloyd, Smith of Maryland, and Smith of New York. On motion, by Mr. TAIT, to amend the bill as follows: "_And be it further enacted_: That this act be not printed or published, unless directed by the President of the United States; any law or usage to the contrary notwithstanding." On the question to agree to this amendment, it was determined in the affirmative--yeas 23, nays 7, as follows: YEAS.--Messrs. Anderson, Bayard, Bibb, Bradley, Brent, Campbell of Tennessee, Condit, Crawford, Cutts, Franklin, Gaillard, Giles, Howell, Leib, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Varnum, and Worthington. NAYS.--Messrs. German, Gilman, Goodrich, Horsey, Hunter, Lambert, and Lloyd. The President resumed the Chair, and Mr. GAILLARD reported the bill, amended. On the question: Shall this bill pass to a third reading, as amended? it was determined in the affirmative--yeas 15, nays 13, as follows: YEAS.--Messrs. Anderson, Bibb, Brent, Campbell of Tennessee, Condit, Crawford, Gaillard, Howell, Leib, Robinson, Tait, Taylor, Turner, Varnum, and Worthington. NAYS.--Messrs. Bayard, Dana, Franklin, German, Gilman, Goodrich, Horsey, Hunter, Lambert, Lloyd, Pope, Smith of Maryland, and Smith of New York. FRIDAY, July 3. The amendments to the bill, entitled "An act authorizing the President to take possession of a tract of country lying south of the Mississippi Territory and of the State of Georgia, and for other purposes," were reported by the committee correctly engrossed; and the bill was read the third time, as amended. On motion, by Mr. BAYARD, to postpone the further consideration thereof to the first Monday in November next; it was determined in the negative--yeas 14, nays 16, as follows: YEAS.--Messrs. Bayard, Bradley, Dana, German, Giles, Gilman, Goodrich, Horsey, Hunter, Lambert, Lloyd, Pope, Smith of Maryland, and Smith of New York. NAYS.--Messrs. Anderson, Bibb, Brent, Campbell of Tennessee, Condit, Crawford, Franklin, Gaillard, Howell, Leib, Robinson, Tait, Taylor, Turner, Varnum, and Worthington. On the question, Shall this bill pass as amended? it was determined in the negative--yeas 14, nays 16, as follows: YEAS.--Messrs. Anderson, Bibb, Brent, Campbell of Tennessee, Condit, Crawford, Franklin, Gaillard, Robinson, Tait, Taylor, Turner, Varnum, and Worthington. NAYS.--Messrs. Bayard, Bradley, Dana, German, Giles, Gilman, Goodrich, Horsey, Howell, Hunter, Lambert, Leib, Lloyd, Pope, Smith of Maryland, and Smith of New York. So it was _Resolved_, That the Senate do not concur in the said bill. FOOTNOTES: [12] LIST OF MEMBERS OF THE SENATE. _New Hampshire._--Nicholas Gilman, Charles Cutts. _Massachusetts._--Joseph B. Varnum, James Lloyd. _Rhode Island._--Jeremiah B. Howell, William Hunter. _Connecticut._--Chauncey Goodrich, Samuel W. Dana. _Vermont._--Stephen R. Bradley, Jonathan Robinson. _New York._--John Smith, Obadiah German. _New Jersey._--John Condit, John Lambert. _Pennsylvania._--Andrew Gregg, Michael Leib. _Delaware._--Outerbridge Horsey, James A. Bayard. _Maryland._--Samuel Smith, Philip Reed. _Virginia._--William B. Giles, Richard Brent. _North Carolina._--Jesse Franklin, James Turner. _South Carolina._--John Gaillard, John Taylor. _Georgia._--William H. Crawford, Charles Tait. _Kentucky._--John Pope, George M. Bibb. _Tennessee._--Joseph Anderson, George W. Campbell. _Ohio._--Thomas Worthington, Alexander Campbell. TWELFTH CONGRESS.--FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES.[13] MONDAY, November 4, 1811. This being the day appointed by a proclamation of the President of the United States, of the twenty-fourth day of July last, for the meeting of Congress, the following members of the House of Representatives appeared, produced their credentials, and took their seats, to wit: _From New Hampshire_--Josiah Bartlett, Samuel Dinsmoor, Obed Hall, John A. Harper, and George Sullivan. _From Massachusetts_--Ezekiel Bacon, Abijah Bigelow, Elijah Brigham, William Ely, Isaiah L. Green, Josiah Quincy, William Reed, Ebenezer Seaver, Samuel Taggart, Peleg Tallman, Charles Turner, junior, Laban Wheaton, and Leonard White. _From Rhode Island_--Richard Jackson, junior. _From Connecticut_--Epaphroditus Champion, John Davenport, junior, Lyman Law, Jonathan O. Mosely, Timothy Pitkin, junior, Lewis B. Sturges, and Benjamin Tallmadge. _From Vermont_--Martin Chittenden, James Fisk, Samuel Shaw, and William Strong. _From New York_--Daniel Avery, Harmanus Bleecker, Thomas B. Cooke, James Emott, Asa Fitch, Thomas R. Gold, Robert Le Roy Livingston, Arunah Metcalf, Samuel L. Mitchill, Benjamin Pond, Peter B. Porter, Ebenezer Sage, Thomas Sammons, Silas Stow, Uri Tracy, and Pierre Van Cortlandt, junior. _From New Jersey_--Adam Boyd, Lewis Condit, Jacob Hufty, James Morgan, and Thomas Newbold. _From Pennsylvania_--William Anderson, David Bard, Robert Brown, William Crawford, Roger Davis, William Findlay, John M. Hyneman, Joseph Lefevre, Aaron Lyle, James Milnor, William Piper, Jonathan Roberts, William Rodman, Adam Seybert, John Smilie, George Smith, and Robert Whitehill. _From Delaware_--Henry M. Ridgely. _From Maryland_--Stevenson Archer, Joseph Kent, Peter Little, Alexander McKim, Samuel Ringgold, and Robert Wright. _From Virginia_--Burwell Bassett, James Breckenridge, William A. Burwell, Matthew Clay, John Dawson, Peterson Goodwyn, Aylett Hawes, John P. Hungerford, Joseph Lewis, junior, William McCoy, Hugh Nelson, Thomas Newton, James Pleasants, junior, John Randolph, John Roane, Daniel Sheffey, John Smith, and Thomas Wilson. _From North Carolina_--Willis Alston, William Blackledge, Thomas Blount, William R. King, Nathaniel Macon, Joseph Pearson, Israel Pickens, and Richard Stanford. _From South Carolina_--William Butler, Langdon Cheves, Elias Earle, William Lowndes, Thomas Moore, and David R. Williams. _From Georgia_--William W. Bibb, Howell Cobb, Bolling Hall, and George M. Troup. _From Kentucky_--Henry Clay, Joseph Desha, Richard M. Johnson, Samuel McKee, Anthony New, and Stephen Ormsby. _From Tennessee_--Felix Grundy, and John Rhea. _From Ohio_--Jeremiah Morrow. _From Mississippi Territory_--George Poindexter, _Delegate_. _From Indiana Territory_--Jonathan Jennings, _Delegate_. And a quorum, consisting of a majority of the whole number of Members, being present, the House proceeded, by ballot, to the choice of a Speaker; and, upon examining the ballots, it appeared that HENRY CLAY, one of the Representatives for the State of Kentucky, was duly elected; Whereupon, Mr. CLAY was conducted to the Speaker's chair, and the oath to support the Constitution of the United States, as prescribed by the act, entitled "An act to regulate the time and manner of administering certain oaths," was administered to him by Mr. FINDLAY, one of the members for the State of Pennsylvania; after which, he made his acknowledgments to the House, in the following words: "GENTLEMEN: In coming to the station which you have done me the honor to assign me--an honor for which you will be pleased to accept my thanks--I obey rather your commands than my own inclination. I am sensible of the imperfections which I bring along with me, and a consciousness of these would deter me from attempting a discharge of the duties of the Chair, did I not rely, confidently, upon your generous support. Should the rare and delicate occasion present itself, when your Speaker shall be called upon to check or control the wanderings or intemperance in debate, your justice will, I hope, ascribe to its interposition the motives only of public good and a regard to the dignity of the House. And in all instances, be assured, gentlemen, that I shall, with infinite pleasure, afford every facility in my power to the despatch of public business, in the most agreeable manner." The oath or affirmation to support the Constitution of the United States was then administered, by the SPEAKER, to all the other members present. GEORGE POINDEXTER, and JONATHAN JENNINGS, having also appeared, and produced their credentials as the delegates from the Mississippi and Indiana Territories of the United States, the oath was administered to them by the Speaker. The House proceeded, by ballot, to the choice of a Clerk, and, upon examining the ballots, it appeared that PATRICK MAGRUDER was duly elected, and the oath, together with the oath of office, administered by the Speaker to the Clerk. THOMAS DUNN was then re-elected Sergeant-at-Arms, and THOMAS CLAXTON, Doorkeeper, without opposition. BENJAMIN BURCH was also chosen Assistant Doorkeeper. The usual messages were interchanged with the Senate on the subject of their being formed and ready to proceed to business. Mr. MITCHILL and Mr. PITKIN were appointed a committee on the part of the House, jointly with the committee appointed on the part of the Senate, to wait on the President of the United States, and inform him that a quorum of the two Houses is assembled, and ready to receive any communications he may be pleased to make to them. Mr. MITCHILL, from the joint committee appointed to wait on the President of the United States, reported that the committee had performed the service assigned to them, and that the President answered, that he would make a communication to Congress to-morrow at twelve o'clock. TUESDAY, November 5. Several other members, to wit, ABNER LACOCK, from Pennsylvania; JOHN BAKER, from Virginia; and RICHARD WYNN from South Carolina, appeared, produced their credentials, were qualified, and took their seats. On motion of Mr. NEWTON, the Clerk of the House was directed to procure newspapers from any number of offices that the members may elect, provided that the expense do not exceed the amount of three daily papers. A Message was received from the PRESIDENT OF THE UNITED STATES, by Mr. EDWARD COLES; his Secretary, who delivered the same and withdrew. [For which see Senate proceedings of this date, _ante_ page 401.] The Message having been read, and the documents accompanying it in part, an adjournment was called for, and carried. WEDNESDAY, November 6. Two other members, to wit: MESHACK FRANKLIN, from North Carolina, and JOHN C. CALHOUN, from South Carolina, produced their credentials, were qualified, and took their seats. THURSDAY, November 7. Another member, to wit, LEMUEL SAWYER, from North Carolina, appeared, produced his credentials, was qualified, and took his seat. FRIDAY, November 8. Another member, to wit, JOHN SEVIER, from Tennessee, appeared, produced his credentials, was qualified, and took his seat. MONDAY, November 11. Several other members, to wit: WILLIAM WIDGERY, from Massachusetts; GEORGE C. MAXWELL, from New Jersey; and PHILIP B. KEY, and PHILIP STUART, from Maryland, appeared, produced their credentials, were qualified, and took their seats. TUESDAY, November 12. _Select Committees._ All the select committees which were thought necessary, being appointed, it was determined that the first, on Foreign Relations, should consist of nine members; the committee on the Spanish colonies and Navy concerns, to consist of seven members; and those on manufacturing cannon and Indian affairs, to consist of five members. The resolutions, as amended, are in the following words: 1. _Resolved_, That so much of the President's Message as relates to the subject of our foreign relations, be referred to a select committee. 2. _Resolved_, That so much of the President's Message as relates to filling the ranks and prolonging the enlistments of the regular troops, and to an auxiliary force; to the acceptance of volunteer corps; to detachments of militia, and to such a preparation of the great body as will proportion its usefulness to its intrinsic capacity, be referred to a select committee. 3. _Resolved_, That those parts of the Message of the President which relates to the Naval force of the United States, and to the defence of our maritime frontier, be referred to a select committee. 4. _Resolved_, That so much of the President's Message as relates to the revenue and the provisions necessary for the service of the ensuing year, be referred lo the Committee of Ways and Means. 5. _Resolved_, That so much of the President's Message as relates to the evasion and infraction of our commercial laws, be referred to the Committee of Commerce and Manufactures. 6. _Resolved_, That so much of the President's Message as relates to foreign trading licenses, and to the protection of manufactures and navigation, be referred to the Committee of Commerce and Manufactures. 7. _Resolved_, That so much of the President's Message as relates to the Spanish American colonies, be referred to a select committee. 8. _Resolved_, That so much of the said Message as relates to the manufacture of cannon and small arms, and the providing munitions of war, be referred to a select committee. 9. _Resolved_, That so much of the said Message as relates to Indian affairs, be referred to a select committee. Mr. Porter, Mr. Calhoun, Mr. Grundy, Mr. Smilie, Mr. Randolph, Mr. Harper, Mr. Key, Mr. Desha, and Mr. Seaver, were appointed the committee on the first resolution. Mr. Williams, Mr. Wright, Mr. Macon, Mr. Nelson, Mr. Stow, Mr. Maxwell, and Mr. Tallmadge, were appointed the committee on the second resolution. Mr. Cheves, Mr. Newton, Mr. Milnor, Mr. Quincy, Mr. Cooke, Mr. McKim, and Mr. Fisk, were appointed the committee on the third resolution. Mr. Mitchill, Mr. Bibb, Mr. Blackledge, Mr. Taggart, Mr. Champion, Mr. Butler, and Mr. Shaw, were appointed the committee on the seventh resolution. Mr. Seybert, Mr. Little, Mr. Goodwyn, Mr. Tracy, and Mr. Sturges, were appointed the committee on the eighth resolution. Mr. McKee, Mr. Sevier, Mr. Morrow, Mr. Sheffey, and Mr. Brown, were appointed the committee on the ninth resolution. And then, on motion the House adjourned until to-morrow. WEDNESDAY, November 13. Another member, to wit, THOMAS GHOLSON, from Virginia, appeared, produced his credentials, was qualified, and took his seat. _Matthew Lyon's Claim for refunding his Fine under the Sedition Act._ The SPEAKER presented a memorial of Matthew Lyon, of Kentucky, stating that, whilst a member of the House of Representatives of the United States, from the State of Vermont, he was illegally tried and found guilty, under a charge of sedition, and fined the sum of one thousand dollars, and imprisoned twelve months, and praying that the said fine may be repaid, with interest, together with his pay as a member of Congress, which was withheld during his confinement. The petition being read, Mr. NEW moved that it be referred, with the accompanying documents, to the Committee of Claims. Mr. BASSETT was opposed to this reference. If the petitioner had any claim upon the United States, it must be on the ground that the law under which he was convicted was unconstitutional. A claim of this kind could not be recognized by that committee. He thought, therefore, it would be more proper to refer this petition to a select committee. This was desirable, also, from the consideration that the Committee of Claims is generally overburdened with business. Mr. NEW said, it having been represented to him that it would be most proper to refer the petition to a select committee, he would so change his motion. Mr. RANDOLPH had no doubt it would be recollected, that at the first session of Congress under the administration of the present President, the session which met in May, 1809, a committee was raised "to inquire whether any and what prosecutions had been instituted before the courts of the United States for libels at common law, and to report such provisions as in their opinion may be necessary for securing the freedom of speech and of the press." Congress adjourned after a short session in June. The chairman of that committee was directed to address letters to the clerks of the several courts in which such prosecutions had been commenced. To some of these letters answers were received after the adjournment. These answers received in the recess (all except one, which the chairman had found amongst his private papers since the meeting of the present session) were transmitted to the clerk of this House, in whose possession it is presumed they now are. The chairman of that committee, at the two succeeding sessions, was, by the visitation of God, and from circumstances without his control, for the first time since he had the honor of a seat on this floor, prevented from attending to his duty till the sessions had considerably advanced, otherwise he would have felt it obligatory on him to have called the attention of Congress to this subject. It was his intention, at the present session, without knowing any thing of this petition, to have called the attention of the House to it, amongst others, at an early day. He thought it behooved this House, as the guardian of the public purse and public weal, to take care that the stream of public justice be preserved pure and free from pollution; and whether persons have suffered by prosecutions under the sedition law, or under the common law of England--not the common law of the United States, as modified by the laws of the United States in their corporate capacity--he was for affording them relief. He wished to see if any of our citizens had received injury from prosecutions of this kind; and, if they had to redress the wrong by such a prospective measure as may prevent a recurrence of similar mischief. It seems idle, said Mr. R., for any man to undertake, by statute, to do that which the great charter of our confederation has endeavored to do in vain. It is, it appears, impossible to prevent men, heated by party, and seeking only the gratification of their own passions, from trampling in the dust the charter which we have sworn to support; for though our constitution has said, in the broadest terms which our language knows, that the freedom of speech and of the press shall not be abridged, men have been found so lost to all sense of their country's good, as to pass the act, commonly called the sedition act, and to send out our judges to dispense, not law, but politics from the bench. It would seem idle to attempt to prevent, by statutory provisions, similar abuses. But though, formed as we are, we cannot attain perfection, we ought, in imitation of a divine example, to aspire to it, and endeavor to preserve in purity the great Magna Charta of our country. This subject, Mr. R. said, might appear frivolous to others. He knew that men, intent on worldly things, with their snouts grovelling in the mud, who hold every thing but sordid pelf, and still more disgraceful office, as dross and dust, would not think it worth while to attend to things of this kind. Nor did he wish to set himself up for a political Pharisee, and thank God that he was not as other men are. Mr. R. moved to amend the reference, by adding to it the following: "With instructions to inquire whether any, and what, prosecutions have been instituted before the courts of the United States for libels, under the sedition law or the common law, and by what authority; and to make such provisions as they may deem necessary for securing the freedom of speech and of the press." Mr. R. hoped this amendment would be agreed to; for, said he, it is evident that when we came into power, when we succeeded to our predecessors, proper measures were not taken for purifying the violent temper of the day--for preventing the recurrence of prosecutions of this kind. He recollected having heard, at the close of the administration of the second President of the United States, one of the most beautiful pieces of declamation, from a gentleman from South Carolina, which he had ever heard, in which he conjured the House to re-enact the sedition act, because, said he, we are about to surrender the Government into the hands of men in whom we have no confidence, and I wish to retain this law as our shelter, because, by this, if we are prosecuted for a libel, we can give the truth in evidence. Mr. R. said he listened to the gentleman, but he thought he was talking for talking's sake. He did not believe that himself believed a word of what he said. Mr. R. did not suppose that a prosecution at common law, for a libel, could take place under a republican administration. He thought the gentleman was making the best apology he could for the sedition law, and that he was glad to find himself in a minority on his motion for continuing it. But, said he, experience teacheth. I find it possible even for the Pharisees themselves sometimes to slide, sometimes to fall. He thought it due to our country, and to ourselves, that whatever abuses exist, without stopping to inquire whether the sufferer be a Catholic or a Protestant, a Federalist, a Democrat, or a monarchy man, to redress the wrong. What would be said in a court of justice in a case of murder? It would not be thought worth while to inquire what was the offender's politics, or whether honest or the contrary. He considered honest men as of right politics. It unfortunately happens, said he, that some men make up in zeal what they know themselves to be deficient in honor and honesty. The amendment was agreed to and the petition referred to a committee of seven, consisting of Mr. NEW, Mr. RANDOLPH, Mr. WRIGHT, Mr. TROUP, Mr. WHITEHILL, Mr. MOSELY, and Mr. COOKE. THURSDAY, November 14. Another member, to wit, JOHN CLOPTON, from Virginia, appeared, produced his credentials, was qualified, and took his seat. FRIDAY, November 15. _Indian Affairs._ Mr. RHEA proposed the following resolution for adoption: "_Resolved_, That the Committee on Indian Affairs be instructed to inquire into the expediency of extending the laws of the United States over those parts of the States and Territories of the United States, to which the Indian title is not extinguished, in such manner as that all white persons residing within any of the said parts of the United States may and shall be liable to the operation of those laws." Mr. R. added, that if the petitions which had this morning been presented by the gentleman from North Carolina had been read, the necessity of taking some measure similar to the one which he proposed, would have been evident to every member of the House, as the Indian countries are become an asylum for persons guilty of every enormity. Mr. PICKENS stated, that if any doubt existed as to the propriety of passing this resolution, he would call for the reading of the petitions which he had presented. Mr. WRIGHT had some doubts whether the laws of the United States did not at present extend to cases of this kind, and wished the resolution to lie on the table until the subject could be looked into. Mr. BIBB said, a case had lately occurred in the State of Georgia, which showed the necessity of some farther provision on this subject. A murder of a most atrocious kind had been committed within the Indian country; the parties were taken near the spot, and brought before the federal authority in Georgia; and upon a question of jurisdiction, the judges decided that the court had no authority in the case. In a similar instance, the offenders were brought before the State authorities, which determined in the same way, and the offenders, of course, were in both cases discharged. Mr. GRUNDY was of opinion that the United States courts had, at present, complete jurisdiction of all criminal cases which might arise within the Indian boundary, the case cited by the gentleman from Georgia notwithstanding; but he supposed the object of this resolution was to supply the defects of the law at present in civil cases. Mr. POINDEXTER had no doubt but the courts of the United States had jurisdiction of criminal offences, committed within the Indian boundary. Congress, at their first session, made provision for the punishment of offenders charged with murder, piracy, &c., committed on the high seas or without the territory of the United States. But the difficulty suggested by the gentleman from Tennessee existed. Persons who have committed petty offences and debtors go over to the Indian territory, where the law cannot reach them. He doubted whether the resolution was calculated to reach this object, and therefore wished it to lie on the table that it might be amended. Mr. RHEA hoped he might be permitted to judge for himself whether the resolution which he had offered was calculated to accomplish the object which he had in view. His colleague had intimated that the laws, at present, extend to criminal offences, though the gentleman from Georgia had stated a case in which the judges had determined otherwise. This shows, at least, that the law wants revision, not only with respect to criminal, but civil matters. He had drawn the resolution in the most general terms. Mr. BIBB could not conceive how the judges of the Federal Court, in the case he had cited, could have decided as they did with the law which had been referred to before them. Perhaps it might have arisen from a clause of the constitution, which directs that jurors shall be drawn from the district where the offence is committed. The resolution was laid on the table. _Domestic Manufactures._ Mr. RHEA called up for consideration the resolution which he laid upon the table yesterday, proposing an additional duty on coarse hemp and flax. The resolution was considered, and, on motion, the words "and cotton," were added to it, by consent of the mover. Mr. GRUNDY observed, that several detached resolutions for the encouragement of domestic manufactures had been offered to the House. He wished the adoption of a proposition which should include all the manufactures of the country. He hoped the present motion might lie on the table for a few days, until such a proposition could be prepared. It is, said he, an object of great magnitude, when we consider the vast sums of money which have lately been vested in establishments of this kind; and the present is a favorable moment for adopting some measures to give our manufactures countenance and support. Mr. RHEA could not agree to the proposed postponement. He should never obtain his object, if he were to agree to one postponement after another. His colleague could, at any time, submit his proposition, without hindering the progress of the one he had introduced. After some conversation as to the propriety of discussing this proposition in the House, The SPEAKER decided, that though there is a rule of the House which says that all propositions for laying a tax shall be discussed in Committee of the Whole; this resolution, in his opinion, did not come within that rule, as it was merely an instruction to a committee to inquire into the expediency of laying an additional tax. The motion, for laying the proposition on the table, was carried, 51 to 47. _American Seamen._ Mr. MILNOR rose, and observed there was no topic more important than the protection of American seamen, and yet he believed it would be acknowledged by all who have given consideration to the subject, that our laws on this subject are materially defective. The object of these laws ought to be twofold; in the first place, for the protection of _bona fide_ American citizens, and secondly, for the prevention of the abuse of those protections by citizens of other countries not entitled to them. It will be recollected, that the act for relief of American seamen makes it the duty of the collectors to furnish certificates of citizenship in the manner therein directed; but, owing to an error of Congress, no manner is prescribed; and, of course, the collectors have been left to accept of such proof as they deemed sufficient, or to act under the directions of the Secretary of the Treasury, which, in most instances, is an unsafe way of proceeding. The penal laws of the United States provide no punishment for the crime of perjury in these cases. A recent instance, Mr. M. said, had occurred in the district which he represented. An Italian, not twenty days in the country, appeared before a notary public, claiming the rights of an American seaman. He made the necessary oaths, and produced a sponsor who swore that he was born in Baltimore. The tongue of the man detected the falsehood. The collector, with that attention to his duty for which he is so remarkable, had both seaman and sponsor apprehended. The attorney for the district looked into the case, and found the crime of perjury to be, the falsely taking an oath according to the laws of the United States; but, as the law was defective, as above stated, the offence was not perjury. The Attorney-General confirmed this opinion. The offenders, therefore, escaped punishment. He believed other amendments might be usefully made to the law on this subject. He concluded by offering the following resolution for adoption, which was agreed to: "_Resolved_, That a committee be appointed to inquire and report whether any, and what amendments are necessary to the laws of the United States relating to the protection of American seamen; and that the committee have leave to report by bill or otherwise." Mr. MILNOR, Mr. LITTLE, Mr. REED, Mr. BASSETT, and Mr. PITKIN, were appointed the committee. MONDAY, November 18 _Expenditure of Public Money._ Mr. RANDOLPH asked for the consideration of the resolution which he laid on the table some days ago, directing the appointment of a committee to inquire into the expenditure of public money; which, being agreed to, Mr. R. trusted there would be no difference of opinion as to the propriety of agreeing to this resolution. But, before the vote was taken, he would state to the House, by way of explanation, the result of a former inquiry. At the first session of the 11th Congress, a report of a committee was made, in part, on this subject. [This report Mr. R. read. It states that, owing to the shortness of the session, complete information on the subject could not be obtained.] As the session lasted but six weeks, the committee had no reason to complain that the information required was not obtained. An expectation was entertained that it would be given at the next session. But the committee have reason to complain that the information which was given was altogether different from that which was asked. This was represented to the departments, and a more satisfactory report was promised at the ensuing session. Mr. R. said, the course pursued at the first session, under the present President, had been the same which was adopted at the close of Mr. Adams's Administration. At the following session of Congress, the person who was appointed chairman of the committee of the first session, was unable to attend; but it was a gratification to him to find, that the subject was taken up by an honorable colleague of his, to whom the State of Virginia had been more than once indebted for the luminous reports on her fiscal concerns; but nothing was effected. To show how different the information received was, from that asked for, Mr. R. proposed to read a short letter. The object of the committee was, to know in what way the Pursers of the Navy received their money, and what was the amount of their emoluments. The answer they received, stated "that the advances made to Pursers are by warrants drawn on the Treasury, sometimes by Navy agents," &c. We inquired, said he, what were their emoluments, other than those allowed by law? Answer: "they arise from a certain percentage upon _slops_ detailed to the seamen." It may not be amiss, said Mr. R., to inform country gentlemen that, by _slops_, are meant ready-made clothing, &c. It was scarcely possible to have given a more evasive answer. We asked, What were the emoluments? They answer, "a certain percentage fixed by the department;" but what that per cent. was, the committee was left to find out by instinct. It had been understood that large sums of money were advanced to these Pursers, who laid it out in slops, which they retailed to the seamen at an advance, in some instances, of twenty per cent.! This was a fact, Mr. R. said, which ought to be looked into. It was essential to the reputation of the Government, essential to its honor, indispensable to the fair fame of those who administer the finances of the United States, that abuses, such as these, should be probed to the quick, to show to the world that, if we cannot govern the great beasts, the mammoths of the forest, we can, at least, poison the _rats_. And whose money, asked Mr. R., is this? It is the people's money; it comes from the pockets of the people of the United States. When he spoke of this abuse of public money, he wished no gentleman to understand him as speaking of the abuse under this, that, or the other President of the United States. He considered them all as of one description of people; and it was not less necessary to guard against abuses in a country where the President is elected by the people, than in a country where he is put over them. He would dare to question the infallibility of all, and look upon all with jealousy and distrust. He wished not, however, to be charged with that mistaken opposition to the Government, which determines to exhibit abuses for the sake of doing so; or with shutting his eyes to the abuses of _Thomas_, while they are open to the abuses of _John_. Mr. R. said he had no interest distinct from the interest of his country. With respect to princes and potentates, the only favor he had to ask of them was, that they would keep their hands out of his pocket and off his person, and, to use a homely phrase, "if they would let him alone, he would let them alone." Under these circumstances, Mr. R. asked the House if it were not necessary for a committee to be appointed to probe into this business? He wished to state, before he sat down, that he had learnt, soon after the present Secretary of the Navy came into office, the percentage of the Pursers was reduced from twenty to four or five per cent. The resolution was unanimously agreed to, and a committee of seven appointed, as follows: Messrs. RANDOLPH, GOLD, MCKIM, ROBERTS, JOHNSON, LAW, and WIDGERY. TUESDAY, November 19. _Territory of Louisiana._ On motion of Mr. RHEA, the House went into a Committee of the Whole, on the bill for the government of the Territory of Louisiana. The bill being read by paragraphs, Mr. FISK moved to strike out the words in the fifth section of the bill, which makes it necessary for persons to be in possession of a freehold to have a right to vote. This motion was opposed by Mr. RANDOLPH, on principle, in a speech of considerable length, in which he advocated the freehold qualification for voters. The motion was opposed also by Mr. RHEA, as unnecessary for the attainment of the mover's object; as he stated the qualification for voters was twofold--one was the possession of a freehold, the other a residence of a year previous to the time of election. Mr. POINDEXTER made a motion, which superseded that of the gentleman from Vermont, to strike out all that part of the section which defined the qualification of voters, and insert, "every free white male citizen residing in the said Territory, who shall have attained the age of twenty-one years, and paid a tax." This amendment was debated till the usual hour of adjournment, when the committee rose without taking the question, and obtained leave to sit again. This debate, though protracted to considerable length, embraced a very narrow question, viz: whether it is better to require voters to hold freehold property, or to suffer every man to possess the privilege of voting who has arrived to the age of twenty-one years. As already stated, Mr. RANDOLPH took the first ground, and introduced the practice of Virginia to show that it was attended with the best effects. Mr. FISK, Mr. WRIGHT, Mr. SMILIE, and Mr. POINDEXTER, took the opposite side of the question. They argued that life and liberty are superior to property--that these are dearer to the poor man than all the property of the rich. Mr. WRIGHT said, that the State of Maryland had tried the property qualification for voting, had found it attended with bad effects, and had now abandoned it. It was formerly required that a voter should be possessed of property to the value of thirty pounds; so that if a man possessed a horse of that value, he was entitled to a vote; but if the horse happened to die before the election, he lost his privilege, which was placing the right in the _horse_ instead of the _man_. As to freehold qualifications, they were evaded too by deeds made for the occasion, which were afterwards cancelled. Mr. RANDOLPH, in combating the principle of universal suffrage, said that it was impossible for the gentleman himself, (alluding to Mr. SMILIE,) or any piping-hot member from a Jacobin club--for any disciple of _Tom Paine_ or of the _Devil_--to carry this principle of equality to its full extent; for even they must exclude from its operation minors and females. He also took occasion to pronounce a strong philippic against foreigners having any part in the Government. Mr. SMILIE, in his reply, paid a tribute of respect to the memory of Paine, on account of his valuable political writings, which had been considered as highly serviceable in the Revolution, and which would always be esteemed wherever the _rights of man_ are understood, and reminded him of the foreigners who had assisted in fighting our Revolutionary battles. Mr. RANDOLPH justified his allusion to Paine; said he was sorry the gentleman had not recollected his "Age of Reason," as well as his "Rights of Man;" and as to any services which he rendered by his writings, he thought little of them. The heroes engaged in that great cause did not need the assistance of an English _staymaker_. In reply, Mr. SMILIE said, he never interfered with a man's religious opinion; that was a private concern, which lay between God and a man's own conscience; and as to the profession of Paine, that, he apprehended, would never lessen the value of his writings. WEDNESDAY, November 20. Another member, to wit, ARCHIBALD MCBRYDE, from North Carolina, appeared, produced his credentials, was qualified, and took his seat. THURSDAY, November 21. Another member, to wit, ELISHA R. POTTER, from Rhode Island, appeared, produced his credentials, was qualified, and took his seat. _Additional Duties._ On motion of Mr. RHEA, the House took up for consideration the resolution which he had submitted some days ago, proposing to instruct the Committee of Commerce and Manufactures to inquire into the expediency of laying an additional duty on coarse manufactures of hemp, flax, and cotton. This resolution produced a long desultory debate, which occupied the House the whole of the day, without coming to any decision upon it. Mr. STANFORD, on the ground that the Committee of Commerce and Manufactures had already this subject under consideration, moved an indefinite postponement of the resolution. This motion was negatived, 58 to 48. Mr. KING proposed an amendment. He expressed himself friendly to the resolution of the gentleman from Tennessee, and to the encouragement of domestic manufactures generally. His amendment was in the following words: "And also into the expediency of laying a duty on the importation of salt, with authority to report by bill or otherwise." Mr. K. observed, that this was an article of general consumption, and its manufacture ought to be encouraged; as it was known what difficulties this country had experienced, and might again experience, when placed in a situation in which a sufficiency of salt could not be obtained. He hoped, therefore, his amendment would be agreed to. Mr. SMILIE was afraid the House was getting into a practice that would produce great trouble and confusion, by departing from the usual and settled mode of proceeding. It had always been deemed irregular, when a subject was committed, to bring it forward in the House before the committee made its report. Look at our situation, said he. A gentleman proposes a tax on manufactures of cotton, another on salt. Every gentleman has his favorite manufacture which he wishes encouraged, so that an armful of resolutions will be thrown into the hands of this committee. Mr. S. said he was friendly to the manufactures of our country, and was willing to give them every aid; but he did not wish, in doing this, to break through established rules. If gentlemen would suspend their remarks on the subject until the Committee of Commerce and Manufactures make their report, they will then have a fair opportunity of delivering their sentiments fully, and of supporting such particular manufactures as they may deem of most importance to the country. He hoped that neither the amendment nor the resolution would be agreed to. Mr. ALSTON considered the gentleman from Pennsylvania mistaken as to the rule and practice of the House. If the doctrine which he maintains were correct, gentlemen might be defeated in effecting the objects which they have in view. It was only to refer a subject to a committee; and if a majority of that committee were unfriendly, and either failed to report, or reported inimically, the friends of the measure might be defeated, though there were a majority in the House in its favor. It was a common practice, Mr. A. said, to refer a subject generally to a committee, and afterwards instruct them, by resolution, as to particular branches of the subject. Mr. NEWTON (the Chairman of the Committee of Commerce and Manufactures) said, the subject of manufactures was considered as being generally before them, and he knew it to be the intention of the committee to take up the matter comprehensively; and if any gentleman shall think proper to give them information respecting any particular manufacture, either orally or in writing, they will be glad to receive it. Mr. N. thought the gentleman from North Carolina (Mr. ALSTON) was mistaken, when he said that a committee had the power of defeating the purposes of members; because, whenever a report was made, it was in the power of a majority of the House to amend it, and make it just what they please. Mr. QUINCY was in favor of the amendment offered by the gentleman from North Carolina, (Mr. KING,) and thanked him for bringing it forward. Some of his constituents, men who lived on the sandbanks of the country, were deeply interested in the manufacture of salt, and had been nearly ruined by the repeal of the duty on that article. He was friendly to a duty on salt, as it was more equal and less felt in the payment than any other, and he had always thought it strange that the duty had been repealed. Mr. MACON thought the proposition to tax this necessary of life, at a time when it is probable we may find a difficulty in procuring it in sufficient quantity, was very ill-timed. The repeal of this duty had been called strange. He thought it would have been more strange had Congress continued the duty when the Treasury was not in need of the money arising from it. If there was any thing strange in the business, it was that there should have been any opposition to the repeal. Mr. M. agreed with the remark made by a gentleman from Massachusetts some days ago, that taxes, to be just, ought to be equal. Would a tax on salt, he asked, be equal? It certainly would not. People on the seacoast would not feel it. Their cattle would refuse it, if given to them. The interior of the country, the people from East to West, would have to bear the weight of this tax. But the gentleman from Massachusetts says the repealing of this duty ruined his constituents, who live on the sandbanks of the country. He would not consent, however, to tax the people of his part of the country, living on sandhills, to support that gentleman's sandbank constituents. But this duty, it is said, is to be laid to encourage manufactures. Why this great cry about domestic manufactures? He thought they had already sufficient encouragement from the present situation of things. The President had recommended the subject to the consideration of the House, and he had no doubt the committee, to whom it had been referred, would do what is proper on the subject. Mr. M. wished to know for what purpose this additional duty is wanted. If, said he, it be wanted for going to war, let us know it. For his part, he had heard so much about war formerly, that he hardly thought we should get at it now. Mr. M. said on a former occasion, when the country was in a situation something like the present, a gentleman from Virginia was so alarmed lest salt sufficient could not be had, that he proposed a bounty on its importation. What, said Mr. M., will be the effect of a proposition for taxing salt in the country? He had no doubt that, in the Southern States, it would immediately raise the price of the article at Petersburg and Fayetteville. On this account, he hoped, if the House did not mean to lay a tax on salt, that the proposition would be immediately discarded. For himself, he would sooner consent to a land or poll tax than a tax on salt. Mr. SMILIE moved a postponement of the resolution until the first Monday in February next. This motion was debated at some length. Some who wished to vote for it, wished the proposition for a tax on salt to be disconnected with the original proposition. FRIDAY, November 22. Another member, to wit, EDWIN GRAY, from Virginia, appeared, produced his credentials, was qualified, and took his seat. _Apportionment of Representatives._ On motion of Mr. DAWSON, the House resolved itself into a Committee of the Whole, on the bill for apportioning the Representatives among the several States, according to the third enumeration. The bill having been read, the question on filling the blanks occurred. The first was in relation to the number of inhabitants for each Representative; when Mr. DAWSON observed, that he was instructed by the committee who directed him to report this bill, to propose filling the blank with the words _forty thousand_; but he should himself vote against filling the blank with this number, because it would deprive the State of Rhode Island of one-half of her present Representatives; it would deprive Connecticut and Maryland each of one member, and Virginia of two. He should, therefore, be in favor of filling the blank with 37,000, as this number would not deprive any State of a Representative, and it would only increase the present number of Representatives from 142 to 180. Mr. DAWSON then moved, that the said blank be filled with the words "thirty-seven thousand;" and the question thereon being taken, was resolved in the affirmative--yeas 102, nays 18. Mr. DAWSON moved to fill the other blanks in the bill, as follows: New Hampshire, five members; Massachusetts, eighteen; Vermont, five; Rhode Island, two; Connecticut, seven; New York, twenty-five; New Jersey, six; Pennsylvania, twenty-one; Delaware, one; Maryland, nine; Virginia, twenty-two; North Carolina, thirteen; South Carolina, nine; Georgia, five; Kentucky, ten; Ohio, six; and Tennessee, six. The bill was ordered to be engrossed for a third reading, and the House adjourned. MONDAY, December 2. JOHN TALIAFERRO, who has been declared entitled to a seat in this House, as one of the members for Virginia, in the place of John P. Hungerford, who has been declared not entitled to a seat in this House, appeared, was qualified, and took his seat. FRIDAY, December 6. Mr. EMOTT presented a petition of Harrison and Lewis, of the city of New York, merchants, praying permission to import from the British West India Islands, goods to the amount of debts owing to them by certain inhabitants in said islands.--Referred to the Committee of Commerce and Manufactures. Mr. SMILIE presented a memorial of the President and Managers of the Union Canal Company of Pennsylvania, praying the aid and patronage of the General Government in accomplishing the extensive and useful works in which they are engaged; which was read, and referred to a select committee. Messrs. SMILIE, RIDGELY, RINGGOLD, BAKER, and BLEECKER, were appointed the committee. A message from the Senate informed the House that the Senate _insist_ on their amendments, disagreed to by this House, to the bill "for the apportionment of Representatives among the several States according to the third enumeration;" agree to the proposed conference, and have appointed managers on their part at the same. _Foreign Relations._ The House resolved itself into a Committee of the Whole on the state of the Union, to which Committee of the Whole was committed the report of the Committee on Foreign Relations, made some days ago. The report having been read-- Mr. PORTER said that the House were probably expecting from the Committee of Foreign Relations some explanations of their views in reporting the resolutions now under consideration, in addition to the general exposition of them contained in the report itself. The committee themselves felt that such explanations were due, inasmuch as they had only reported in part, and had intimated their intention to follow up these resolutions, should they be adopted, by the recommendation of ulterior measures. The committee, Mr. P. said, after examining the various documents accompanying the President's Message, were satisfied, as he presumed every member of the House was, that all hopes of accommodating our differences with Great Britain by negotiation must be abandoned. When they looked at the correspondence between the two Governments; when they observed the miserable shifts and evasions (for they were entitled to no better appellation) to which Great Britain resorted to excuse the violations of our maritime rights, it was impossible not to perceive that her conduct towards us was not regulated even by her own sense of justice, but solely by a regard to the probable extent of our forbearance. The last six years had been marked by a series of progressive encroachments on our rights; and the principles by which she publicly upheld her aggressions, were as mutable as her conduct. We had seen her one year advancing doctrines, which the year before she had reprobated. He had seen her one day capturing our vessels under pretexts, which on the preceding day she would have been ashamed or afraid to avow. Indeed, said Mr. P., she seems to have been constantly and carefully feeling our pulse, to ascertain what potions we would bear; and if we go on submitting to one indignity after another, it will not be long before we shall see British subjects, not only taking our property in our harbors, but trampling on our persons in the streets of our cities. Having become convinced that all hopes from further negotiation were idle, the committee, Mr. P. said, were led to the consideration of another question, which was--whether the maritime rights which Great Britain is violating were such as we ought to support at the hazard and expense of a war? And he believed he was correct in stating that the committee was unanimously of the opinion that they were. The committee thought that the Orders in Council, so far as they go to interrupt our direct trade, that is, the carrying of the productions of this country to a market in the ports of friendly nations, and returning with the proceeds of them--ought to be resisted by war. How far we ought to go in support of what is commonly called the carrying trade, although the question was agitated in the committee, no definitive opinion was expressed. It was not deemed necessary, at this time, to express such an opinion, inasmuch as the injury we sustain by the inhibition of this trade is merged in the greater one to our direct trade. The Orders in Council, Mr. P. said, of which there seemed now to be no prospect of a speedy repeal--certainly none during the continuance of the present war--authorized the capture of our vessels bound to and from ports where British commerce is not favorably received; and as that nation is at war with most of the civilized world, the effect was (as he understood from those who had much better information on the subject than he could pretend to) to cut up, at once, about three-fourths of our best and most profitable commerce. It was impossible that the mercantile or agricultural interests of the United States, which on the question of a right to the direct trade could never be separated, could submit to such impositions. It was his opinion, that going upon the ground of a mere pecuniary calculation, a calculation of profits and loss, it would be for our interest to go to war to remove the Orders in Council, rather than submit to them, even during the term of their probable continuance. But there was another point of view in which the subject presented itself to the committee, and that was as regarded the character of the country. We were a young nation, and he hoped we cherished a little pride and spirit, as well as a great deal of justice and moderation. Our situation was not unlike that of a young man just entering into life, and who, if he tamely submitted to one cool, deliberate, intentional indignity, might safely calculate to be kicked and cuffed for the whole of the remainder of his life; or, if he should afterwards undertake to retrieve his character, must do it at ten times the expense which it would have cost him at first to support it. We should clearly understand and define those rights which as a nation we ought to support, and we should support them at every hazard. If there be any such thing as rights between nations, surely the people of the United States, occupying the half of a continent, have a right to navigate the seas, without being molested by the inhabitants of the little island of Great Britain. It was under these views of the subject that the committee did not hesitate to give it as their opinion, that we ought to go to war in opposition to the Orders in Council. But as to the extent of the war and the time when it should be commenced, there would of course be some diversity of sentiment in the House, as there was, at first, in the committee. That we can contend with Great Britain openly and even handed on the element where she injures us, it would be folly to pretend. Were it even in our power to build a navy which should be able to cope with her, no man who has any regard for the happiness of the people of this country would venture to advise such a measure. All the fame and glory which the British navy has acquired at sea, have been dearly paid for in the sufferings and misery of that ill-fated people at home--sufferings occasioned in a great measure by the expense of that stupendous establishment. But without such a navy the United States could make a serious impression upon Great Britain, even at sea. We could have, within six months after a declaration of war, hundreds of privateers in every part of the ocean. We could harass, if not destroy, the vast and profitable commerce which she is constantly carrying on to every part of this continent. We could destroy her fisheries to the north; we could depredate upon her commerce to the West India Islands, which is passing by our doors; we could annoy her trade along the coast of South America; we could even carry the war to her own shores in Europe. Mr. P. said he had risen merely for the purpose of explaining to the House the opinion and views of the committee in relation to the resolutions now to be discussed, and he should be satisfied if he had been so fortunate as to succeed. The question was then taken on the first resolution for filling the ranks of the present army, &c., and carried. SATURDAY, December 7. _Territorial Government in Upper Louisiana._ Mr. PLEASANTS presented a remonstrance and petition of sundry inhabitants of St. Louis, in the Territory of Louisiana, stating the many injuries and inconveniences which would result from a change in their form of government, and praying that no alteration may be made in their said form of government.--Referred to the Committee of the Whole on the bill providing for the government of the said Territory. MONDAY, December 9. _Foreign Relations._ The House resumed the consideration of the report of the Committee of Foreign Relations. The question being on the agreement to the second resolution, authorizing the raising an additional regular force-- Mr. GRUNDY, as a member of the committee stated his impression that this was the vital part of the report; and although he had no desire to prolong debate, invited those who were opposed to the report now to come forward and state their objections to it. Mr. RANDOLPH said he was an old-fashioned politician. In the days of terror, we shrunk at standing armies; and what is the object now--defence? Who? Freemen who would not defend themselves. He would ask, if seven millions of Americans were to be protected in their lives and liberties by ten thousand vagabonds who were fit food for gunpowder? It would be necessary to know the ulterior views of the committee on this point. It would be proper, before a vote was taken on this resolution, to know for what purpose these additional troops were wanted. The House ought not to commit itself on a question of such magnitude without detailed information. He was as much opposed to raising standing armies now, as he had been in the reign of terror. He had seen too much of the corruptions attendant on those establishments, in the course of the investigation in which he was engaged, not to disclaim all share in the creation of them. The people of the United States could defend themselves, if necessary, and had no idea of resting their defence on mercenaries, picked up from brothels and tippling houses--pickpockets who have escaped from Newgate, &c., and sought refuge in this asylum of oppressed humanity. He contended that this resolution contained an unconstitutional proposition, and that the standing army now in the service of the United States was maintained in the very teeth of that part of the constitution which declares that no money for the support of a standing army should be appropriated for more than two years. He again called for information as to the object of the army now proposed to be raised; declaring, that, if the President should say they were necessary for the protection of New Orleans, to be employed against the Indians, or to repel incursions from Canada, (although this seemed not to be much thought of,) he should not refuse to grant them. He declared the report to be a negative position, which could not be combated except to disadvantage. He wished to know the constitutional resources of the committee, and expressed a hope that the remarks he had made would draw out the talents of that body. Mr. GRUNDY.--I did not expect that the gentleman from Virginia would have made any inquiries into the motives or objects of that committee of which he himself was a member. He, sir, attended faithfully to his duty, and witnessed every step the committee took. He also saw the report before it was made to this House, and must have heard the exposition of our ulterior measures, as explained by our Chairman. Why, then, sir, shall he now affect not to understand us? Our object, by those who will listen, shall not be misunderstood. And, Mr. Speaker, as I have no political secrets, I feel no hesitation in declaring to you, to this House, and to the nation, the view I have taken of the subject. But before I do this, it is due to the committee that an explanation of their conduct should take place. So soon as the Committee on our Foreign Relations was appointed, we were forcibly impressed with the serious and highly responsible station you had assigned us; to that committee, consisting of nine members only, were not only the eyes of this House but of the nation turned; and from us, in this, the most troubled season our world has ever known, was it expected that a course of measures would be recommended, calculated to protect the interests of seven millions of people. Under this impression, Mr. Speaker, we deemed it a duty to take time for deliberation; we thought it better to encounter the charge of having acted in a tardy and dilatory way, than to take a rash step, by which this nation might be plunged into difficulties, from which it could not be easily extricated. We therefore took the necessary time to weigh the arguments both for and against the measures we have recommended; and, as far as we were able, we surveyed the consequences which were to follow from the course we proposed. We foresaw, Mr. Speaker, that our countrymen were to fall in the meditated conflict, and that American blood was to stream afresh. Nor were we unmindful of the expenditure of public treasure. And, sir, what cost me more reflection than every thing else, was the new test to which we are to put this Government. We are about to ascertain by actual experiment how far our Republican institutions are calculated to stand the shock of war, and whether, after foreign danger disappeared, we can again assume our peaceful attitude, without endangering the liberties of the people. Against these considerations, weighty in themselves, your committee felt themselves constrained to decide, influenced by existing circumstances of a character too imperious to be resisted: these I will enumerate before I sit down. My business at present is to address a particular portion of the members of this House--I mean, sir, the Republican members--and although what I am about to say might be deemed impolitic on ordinary subjects of legislation, yet, at this time and on this occasion, it would be criminal to conceal a single thought which might influence their determination. We should now, Mr. Speaker, forget little party animosities, we should mingle minds freely, and, as far as we are able, commune with the understandings of each other; and, the decision once made, let us become one people, and present an undivided front to the enemies of our country. Republicans should never forget that some years ago a set of men of different politics held the reins of this Government, and drove the car of State; they were charged with being friendly to standing armies in times of peace, and favorable to expensive establishments; not for the purpose of opposing foreign enemies, but to encourage Executive patronage, and to bring these forces to operate upon the people themselves. These measures alarmed the Republicans; they remonstrated, they clamored, they appealed to the people, and by a national sentence, the men then in power were taken down from their high places, and Republican men were put in their seats. If your minds are resolved on war, you are consistent, you are right, you are still Republicans; but if you are not resolved, pause and reflect, for should this resolution pass, and you then become faint-hearted, remember that you have abandoned your old principles, and trod in the paths of your predecessors. According to my view of this subject, Mr. Speaker, we now stand on the bank; one movement more, the Rubicon is passed, we are in Italy, and we must march to Rome. As a member of the committee, I feel no hesitation in saying, that if there be a member here, not determined to go with us to the extent of our measures, I prefer now to take my leave of him, rather than be deserted when the clouds darken, and the storm thickens upon us. This admonition I owed to candor--I have paid it, not because I doubted; my purpose is settled, my mind reposes upon it. I may be in an error. If I am, I hope my country will forgive me. From my God I shall never need it, because he knows the purity of my motives. What, Mr. Speaker, are we now called on to decide? It is whether we will resist by force the attempt made by that Government, to subject our maritime rights to the arbitrary and capricious rule of her will; for my part I am not prepared to say that this country shall submit to have her commerce interdicted or regulated by any foreign nation. Sir, I prefer war to submission. Over and above these unjust pretensions of the British Government, for many years past they have been in the practice of impressing our seamen from merchant vessels; this unjust and lawless invasion of personal liberty, calls loudly for the interposition of this Government. To those better acquainted with the facts in relation to it, I leave it to fill up the picture. My mind is irresistibly drawn to the West. Although others may not strongly feel the bearing which the late transactions in that quarter have on this subject, upon my mind they have great influence. It cannot be believed by any man who will reflect that the savage tribes, uninfluenced by other powers, would think of making war on the United States. They understand too well their own weakness, and our strength. They have already felt the weight of our arms; they know they hold the very soil on which they live as tenants at sufferance. How, then, sir, are we to account for their late conduct? In one way only; some powerful nation must have intrigued with them and turned their peaceful disposition towards us into hostilities. Great Britain alone has intercourse with those northern tribes; I therefore infer, that if British gold has not been employed, their baubles and trinkets, and the promise of support, and a place of refuge if necessary, have had their effect. If I am right in this conjecture, war is not to commence by sea or land, it is already begun; and some of the richest blood of our country has already been shed. Yes, Mr. Speaker, in one individual has fallen, the honest man, the orator and the soldier.[14] That he loved his country none can doubt--he died to preserve its honor and its fame--I mean the late commander of the cavalry; you, sir, who have often I measured your strength with his in forensic debate, can attest that he in a good degree was the pride of the western country, and Kentucky claimed him as a favorite son. For his loss, with those who fell by his side, the whole western country is ready to march; they only wait for our permission; and, sir, war once declared, I pledge myself for my people--they will avenge the death of their brethren. TUESDAY, December 10. Another member, to wit, JAMES COCHRAN, from North Carolina, appeared and took his seat. _Spanish American Colonies._ Mr. MITCHILL, from the committee appointed on that part of the President's Message which relates to the Spanish American Colonies, made a report, in part, thereon; which was read and referred to a Committee of the Whole on the state of the Union. The report is as follows: The committee to whom was referred so much of the President's Message as relates to the Spanish American colonies, have, in obedience to the order of the House, deliberately considered the subject before them, and directed a report, in part, to be submitted to the consideration of the House, in the form of a public declaration, as follows: Whereas several of the American Spanish provinces have represented to the United States that it has been found expedient for them to associate and form Federal Governments upon the elective and representative plan, and to declare themselves free and independent--Therefore be it _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That they behold with friendly interest, the establishment of independent sovereignties by the Spanish provinces in America, consequent upon the actual state of the monarchy to which they belonged; that as neighbors and inhabitants of the same hemisphere the United States feel great solicitude for their welfare; and that when those provinces shall have attained the condition of nations, by the just exercise of their rights, the Senate and House of Representatives will unite with the Executive, in establishing with them as sovereign and independent States, such amicable relations and commercial intercourse as may require their Legislative authority. _Foreign Relations._ The order of the day being called for, the SPEAKER observed, that the gentleman from Virginia on the right of the Chair was entitled to the floor. Mr. RANDOLPH rose. He expressed his sense of the motive which had induced the gentleman from Tennessee (Mr. GRUNDY) to move the adjournment, yesterday, and of the politeness of the House in granting it; at the same time declaring that in point of fact he had little cause to be thankful for the favor, well intended as he knew it to have been--since he felt himself even less capable of proceeding with his argument, than he had been on the preceding day. It was a question, as it had been presented to the House, of peace or war. In that light it had been argued; in no other light could he consider it, after the declaration made by members of the Committee of Foreign Relations. Without intending any disrespect to the Chair, he must be permitted to say that if the decision yesterday was correct, "That it was not in order to advance any arguments against the resolution, drawn from topics before other committees of the House," the whole debate, nay, the report itself on which they were acting, was disorderly; since the increase of the military force was a subject at that time in agitation by the select committee raised on that branch of the President's Message. But it was impossible that the discussion of a question broad as the wide ocean of our foreign concerns--involving every consideration of interest, of right, of happiness and of safety at home--touching in every point, all that was dear to freemen, "their lives, their fortunes, and their sacred honor!"--could be tied down by the narrow rules of technical routine. The Committee of Foreign Relations had indeed decided that the subject of arming the militia (which he had pressed upon them as indispensable to the public security) did not come within the scope of their authority. On what ground, he had been and still was unable to see, they had felt themselves authorized (when that subject was before another committee) to recommend the raising of standing armies, with a view (as had been declared) of immediate war--a war not of defence, but of conquest, of aggrandizement, of ambition; a war foreign to the interests of this country, to the interests of humanity itself. He knew not how gentlemen, calling themselves republicans, could advocate such a war. What was their doctrine in 1798-'9, when the command of the army--that highest of all possible trusts in any Government, be the form what it may--was reposed in the bosom of the Father of his Country, the sanctuary of a nation's love, the only hope that never came in vain! When other worthies of the Revolution--Hamilton, Pinckney, and the younger Washington--men of tried patriotism, of approved conduct and valor, of untarnished honor, held subordinate command under him! Republicans were then unwilling to trust a standing army, even to his hands who had given proof that he was above all human temptation. Where now is the Revolutionary hero to whom you are about to confide this sacred trust? To whom will you confide the charge of leading the flower of our youth to the Heights of Abraham? Will you find him in the person of an acquitted felon? What! then you were unwilling to vote an army where such men as had been named held high command! when WASHINGTON himself was at the head--did you then show such reluctance, feel such scruples; and are you now nothing loth, fearless of every consequence? Will you say that your provocations were less then than now? When your direct commerce was interdicted--your Ambassadors hooted with derision from the French Court--tribute demanded--actual war waged upon you! Those who opposed the army then were indeed denounced as the partisans of France; as the same men--some of them at least--are now held up as the advocates of England; those firm and undeviating Republicans who then dared, and now dare, to cling to the ark of the constitution, to defend it even at the expense of their fame, rather than surrender themselves to the wild projects of mad ambition! There was a fatality attending plenitude of power. Soon or late some mania seizes upon its possessors--they fall from the dizzy height through the giddiness of their own heads. Like a vast estate, heaped up by the labor and industry of one man, which seldom survives the third generation--power, gained by patient assiduity, by a faithful and regular discharge of its attendant duties, soon gets above its own origin. Intoxicated with their own greatness the Federal party fell. Will not the same causes produce the same effects now as then? Sir, you may raise this army, you may build up this vast structure of patronage, this mighty apparatus of favoritism; but--"lay not the flattering unction to your souls"--you will never live to enjoy the succession. You sign your political death warrant. Mr. R. here adverted to the provocation to hostilities from shutting up the Mississippi by Spain in 1803--but more fully to the conduct of the House in 1805-'6, under the strongest of all imaginable provocatives to war; the actual invasion of our country. He read various passages from the President's public Message of December 3, 1805. Mr. R. said that the peculiar situation of the frontier, at that time insulted, had alone induced the committee to recommend the raising of regular troops. It was too remote from the population of the country for the militia to act, in repelling and chastising Spanish incursion. New Orleans and its dependencies were separated by a vast extent of wilderness from the settlements of the old United States; filled with a disloyal and turbulent people, alien to our institutions, language and manners, and disaffected towards our Government. Little reliance could be placed upon them, and it was plain, that if "it was the intention of Spain to advance on our possessions until she should be repulsed by an opposing force," that force must be a regular army, unless we were disposed to abandon all the country south of Tennessee. That if "the protection of our citizens and the spirit and the honor of our country required that force should be interposed," nothing remained but for the Legislature to grant the only practicable means, or to shrink from the most sacred of all its duties--to abandon the soil and its inhabitants to the tender mercies of hostile invaders. Yet this report, moderate as it was, had been deemed of too strong a character by the House. It was rejected: and, at the motion of a gentleman from Massachusetts, (Mr. BIDWELL,)--who had since taken a great fancy also to Canada,[15] and marched off thither, in advance of the committee of Foreign Relations--"$2,000,000, were appropriated towards" (not in full of) "any extraordinary expense which might be incurred in the intercourse between the United States and foreign nations:" in other words, to buy off, at Paris, Spanish aggressions at home. Was this fact given in evidence of our impartiality towards the belligerents?--that to the insults and injuries and actual invasion of one of them we opposed not bullets, but dollars; that to Spanish invasion we opposed money, whilst for British aggression on the high seas we had arms; offensive war? But Spain was then shielded, as well as instigated, by a greater power. Hence our respect for her. Had we at that time acted as we ought to have done in defence of rights, of the _natale solum_ itself, we should (he felt confident) have avoided that series of insult, disgrace, and injury, which had been poured out upon us in long unbroken succession. We would not then raise a small regular force for a country where the militia could not act, to defend our own Territory; now, we are willing to levy a great army, for great it must be, to accomplish the proposed object, for a war of conquest and ambition--and this, too, at the very entrance of the "Northern Hive," of the strongest part of the Union. An insinuation had fallen from the gentleman from Tennessee, (Mr. GRUNDY,) that the late massacre of our brethren on the Wabash had been instigated by the British Government. Has the President given any such information? has the gentleman received any such, even informally, from any officer of this Government? Is it so believed by the Administration? He had cause to think the contrary to be the fact; that such was not their opinion. This insinuation was of the grossest kind--a presumption the most rash, the most unjustifiable. Show but good ground for it, he would give up the question at the threshold--he was ready to march to Canada. It was indeed well calculated to excite the feelings of the Western people particularly, who were not quite so tenderly attached to our red brethren as some modern philosophers; but it was destitute of any foundation, beyond mere surmise and suspicion. What would be thought, if, without any proof whatsoever, a member should rise in his place and tell us, that the massacre in Savannah, a massacre perpetrated by civilized savages, with French commissions in their pockets, was excited by the French Government? There was an easy and natural solution of the late transaction on the Wabash, in the well-known character of the aboriginal savage of North America, without resorting to any such mere conjectural estimate. He was sorry to say, that for this signal calamity and disgrace the House was, in part, at least, answerable. Session after session, their table had been piled up with Indian treaties, for which the appropriations had been voted as a matter of course, without examination. Advantage had been taken of the spirit of the Indians, broken by the war which ended in the Treaty of Greenville. Under the ascendency then acquired over them, they had been pent up by subsequent treaties into nooks straitened in their quarters by a blind cupidity, seeking to extinguish their title to immense wildernesses, for which (possessing, as we do already, more land than we can sell or use) we shall not have occasion, for half a century to come. It was our own thirst for territory, our own want of moderation, that had driven these sons of nature to desperation, of which we felt the effects. Mr. R., although not personally acquainted with the late Colonel Daviess, felt, he was persuaded, as deep and serious regret for his loss as the gentleman from Tennessee himself. He knew him only through the representation of a friend of the deceased, (Mr. ROWAN,) some time a member of that House; a man, who, for native force of intellect, manliness of character, and high sense of honor, was not inferior to any that had ever sat there. With him he sympathized in the severest calamity that could befall a man of his cast of character. Would to God they were both then on the floor! From his personal knowledge of the one, he felt confident that he would have his support--and he believed (judging of him from the representation of their common friend) of the other also. He could but smile at the liberality of the gentleman, in giving Canada to New York, in order to strengthen the Northern balance of power, while at the same time he forewarned her that the Western scale must preponderate. Mr. R. said that he could almost fancy that he saw the Capitol in motion towards the falls of Ohio--after a short sojourn taking its flight to the Mississippi, and finally alighting on Darien; which, when the gentleman's dreams are realized, will be a most eligible seat of government for the new Republic (or Empire) of the two Americas! But it seemed that "in 1808 we talked and acted foolishly," and to give some color of consistency to that folly, we must now commit a greater. Really he could not conceive of a weaker reason offered in support of a present measure, than the justification of a former folly. He hoped we should act a wiser part--take warning by our follies, since we had become sensible of them, and resolve to talk and act foolishly no more. It was indeed high time to give over such preposterous language and proceedings. This war of conquest, a war for the acquisition of territory and subjects, is to be a new commentary on the doctrine that Republics are destitute of ambition--that they are addicted to peace, wedded to the happiness and safety of the great body of their people. But it seems this is to be a holiday campaign--there is to be no expense of blood, or treasure, on our part--Canada is to conquer herself--she is to be subdued by the principles of fraternity. The people of that country are first to be seduced from their allegiance, and converted into traitors, as preparatory to the making them good citizens. Although he must acknowledge that some of our flaming patriots were thus manufactured, he did not think the process would hold good with a whole community. It was a dangerous experiment. We were to succeed in the French mode by the system of fraternization--all is French! but how dreadfully it might be retorted on the Southern and Western slaveholding States. He detested this subornation of treason. No--if he must have them, let them fall by the valor of our arms, by fair, legitimate conquest; not become the victims of treacherous seduction. He was not surprised at the war spirit which was manifesting itself in gentlemen from the South. In the year 1805-'6, in a struggle for the carrying trade of belligerent colonial produce, this country has been most unwisely brought into collision with the great powers of Europe. By a series of most impolitic and ruinous measures,[16] utterly incomprehensible to every rational, sober-minded man, the Southern planters, by their own votes, had succeeded in knocking down the price of cotton to seven cents, and of tobacco (a few choice crops excepted) to nothing--and in raising the price of blankets, (of which a few would not be amiss in a Canadian campaign,) coarse woollens, and every article of first necessity, three or four hundred per cent. And now that, by our own acts, we have brought ourselves into this unprecedented condition, we must get out of it in any way, but by an acknowledgment of our own want of wisdom and forecast. But is war the true remedy? Who will profit by it? Speculators--a few lucky merchants, who draw prizes in the lottery--commissaries and contractors. Who must suffer by it? The people. It is their blood, their taxes, that must flow to support it. But gentlemen avowed that they would not go to war for the carrying trade--that is, for any other but the direct export and import trade--that which carries our native products abroad, and brings back the return cargo; and yet they stickle for our commercial rights, and will go to war for them! He wished to know, in point of principle, what difference gentlemen could point out between the abandonment of this or of that maritime right? Do gentlemen assume the lofty port and tone of chivalrous redressers of maritime wrongs, and declare their readiness to surrender every other maritime right provided they may remain unmolested in the exercise of the humble privilege of carrying their own produce abroad, and bringing back a return cargo? Do you make this declaration to the enemy at the outset? Do you state the minimum with which you will be contented, and put it in her power to close with your proposal at her option; give her the basis of a treaty ruinous and disgraceful beyond example and expression? and this, too, after having turned up your nose in disdain at the treaties of Mr. Jay and Mr. Monroe! Will you say to England, "end the war when you please, give us the direct trade in our own produce, we are content?" But what will the merchants of Salem, and Boston, and New York, and Philadelphia, and Baltimore, the men of Marblehead and Cape Cod, say to this? Will they join in a war professing to have for its object what they would consider (and justly too) as the sacrifice of their maritime rights, yet affecting to be a war for the protection of commerce? He was gratified to find gentlemen acknowledging the demoralizing and destructive consequences of the non-importation law--confessing the truth of all that its opponents foretold when it was enacted. And will you plunge yourselves in war, because you have passed a foolish and ruinous law, and are ashamed to repeal it? "But our good friend the French Emperor stands in the way of its repeal," and as we cannot go too far in making sacrifices to him, who has given such demonstration of his love for the Americans, we must, in point of fact, become parties to his war. "Who can be so cruel as to refuse him this favor?" His imagination shrunk from the miseries of such a connection. He called upon the House to reflect whether they were not about to abandon all reclamation for the unparalleled outrages, "insults and injuries" of the French Government, to give up our claim for plundered millions; and asked what reparation or atonement they could expect to obtain in hours of future dalliance, after they should have made a tender of their person to this great deflowerer of the virginity of republics. We had by our own wise (he would not say _wise-acre_) measures, so increased the trade and wealth of Montreal and Quebec, that at last we began to cast a wishful eye at Canada. Having done so much towards its improvement by the exercise of "our restrictive energies," we began to think the laborer worthy of his hire, and to put in claim for our portion. Suppose it ours, are we any nearer to our point? As his Minister said to the King of Epirus, "may we not as well take our bottle of wine before as after this exploit?" Go! march to Canada! leave the broad bosom of the Chesapeake and her hundred tributary rivers--the whole line of seacoast from Machias to St. Mary's unprotected! You have taken Quebec--have you conquered England? Will you seek for the deep foundations of her power in the frozen deserts of Labrador? "Her march is on the mountain wave, Her home is on the deep!" Will you call upon her to leave your ports and harbors untouched, only just till you can return from Canada to defend them? The coast is to be left defenceless, whilst men of the interior are revelling in conquest and spoil. But grant for a moment, for mere argument's sake, that in Canada you touched the sinews of her strength, instead of removing a clog upon her resources--an encumbrance, but one, which, from a spirit of honor, she will vigorously defend. In what situation would you then place some of the best men of the nation? As Chatham and Burke, and the whole band of her patriots, prayed for her defeat in 1776, so must some of the truest friends to their country deprecate the success of our arms against the only power that holds in check the arch-enemy of mankind. Mr. R. declared that the committee had out-stripped the Executive. In designating the power against whom this force was to be employed--as had most unadvisably been done in the preamble or manifesto with which the resolutions were prefaced--they had not consulted the views of the Executive; that designation was equivalent to an abandonment of all our claims on the French Government. No sooner was the report laid on the table, than the vultures were flocking round their prey, the carcass of a great Military Establishment--men of tainted reputation, of broken fortunes (if they ever had any) and of battered constitutions, "choice spirits, tired of the dull pursuits of civil life," were seeking after agencies and commissions; willing to doze in gross stupidity over the public fire; to light the public candle at both ends. Honorable men undoubtedly there were ready to serve their country, but what man of spirit, or of self-respect, would accept a commission in the present army? The gentleman from Tennessee (Mr. GRUNDY) had addressed himself, yesterday, exclusively to the "Republicans of this House." Mr. R. knew not whether he might consider himself as entitled to any part of the benefit of the honorable gentleman's discourse. It belonged not, however, to that gentleman to decide. If we must have an exposition of the doctrines of Republicanism, he should receive it from the fathers of the Church, and not from the junior apprentices of the law. He should appeal to his worthy friends from Carolina, (Messrs. MACON and STANFORD,) "men with whom he had measured his strength," by whose side he had fought during the reign of terror, for it was indeed an hour of corruption, of oppression, of pollution. It was not at all to his taste, that sort of Republicanism which was supported on this side of the Atlantic by the father of the sedition law, John Adams, and by Peter Porcupine on the other. Republicanism! of John Adams! and William Cobbett! _Par nobile fratrum_, now united as in 1798, whom the cruel walls of Newgate alone keep from flying to each other's embrace--but whom, in sentiment it is impossible to divide! Gallant crusaders in the holy cause of Republicanism! Such "Republicanism does indeed mean any thing or nothing." Our people will not submit to be taxed for this war of conquest and dominion. The Government of the United States was not calculated to wage offensive foreign war--it was instituted for the common defence and general welfare; and whosoever should embark in a war of offence, would put it to a test which it was by no means calculated to endure. Make it out that Great Britain had instigated the Indians on the late occasion, and he was ready for battle; but not for dominion. He was unwilling, however, under present circumstances, to take Canada, at the risk of the constitution--to embark in common cause with France and be dragged at the wheels of the car of some Burr or Bonaparte. For a gentleman from Tennessee or Genesee, or Lake Champlain, there may be some prospect of advantage. Their hemp would bear a great price by the exclusion of foreign supply. In that too the great importers were deeply interested. The upper country on the Hudson and the Lakes would be enriched by the supplies for the troops, which they alone could furnish. They would have the exclusive market: to say nothing of the increased preponderance from the acquisition of Canada and that section of the Union, which the Southern and Western States had already felt so severely in the apportionment bill. Mr. R. adverted to the defenceless state of our seaports, and particularly of the Chesapeake. A single spot only, on both shores, might be considered in tolerable security--from the nature of the port and the strength of the population--and that spot unhappily governed the whole State of Maryland. His friend, the late Governor of Maryland, (Mr. LLOYD,) at the very time he was bringing his warlike resolutions before the Legislature of the State, was liable, on any night, to be taken out of his bed, and carried off with his family, by the most contemptible picaroon. Such was the situation of many a family in Maryland and lower Virginia. Mr. R. dwelt on the danger arising from the black population. He said he would touch this subject as tenderly as possible--it was with reluctance that he touched it at all--but in cases of great emergency, the State physician must not be deterred by a sickly, hysterical humanity, from probing the wound of his patient--he must not be withheld by a fastidious and mistaken humanity from representing his true situation to his friends, or even to the sick man himself, where the occasion called for it. What was the situation of the slaveholding States? During the war of the Revolution, so fixed were their habits of subordination, that when the whole southern country was overrun by the enemy, who invited them to desert, no fear was ever entertained of an insurrection of the slaves. During the war of seven years, with our country in possession of the enemy, no such danger was ever apprehended. But should we therefore be unobservant spectators of the process of society, within the last twenty years--of the silent and powerful change wrought by time and chance, upon its composition and temper? When the fountains of the great deep of abomination were broken up, even the poor slaves had not escaped the general deluge. The French Revolution had polluted even them. Nay, there had not been wanting men in that House, witness their Legislative _Legendre_, the butcher who once held a seat there, to preach upon that floor these imprescriptible rights to a crowded audience of blacks in the galleries--teaching them that they are equal to there masters; in other words, advising them to cut their throats. Similar doctrines were disseminated by peddlers from New England and elsewhere, throughout the southern country--and masters have been found so infatuated, as by their lives and conversation, by a general contempt of order, morality, and religion, unthinkingly to cherish these seeds of self-destruction to them and their families. What was the consequence? Within the last ten years, repeated alarms of insurrection among the slaves--some of them awful indeed. From the spreading of this infernal doctrine, the whole southern country had been thrown into a state of insecurity. Men dead to the operation of moral causes, had taken away from the poor slave his habits of loyalty and obedience to his master, which lightened his servitude by a double operation; beguiling his own cares and disarming his master's suspicions and severity; and now, like true empirics in politics, you are called upon to trust to the mere physical strength of the fetter which holds him in bondage. You have deprived him of all moral restraint, you have tempted him to eat of the fruit of the tree of knowledge, just enough to perfect him in wickedness; you have opened his eyes to his nakedness; you have armed his nature against the hand that has fed, that has clothed him, that has cherished him in sickness; that hand, which before he became a pupil of your school, he had been accustomed to press with respectful affection. You have done all this--and then show him the gibbet and the wheel, as incentives to a sullen, repugnant obedience. God forbid, sir, that the Southern States should ever see an enemy on their shores, with these infernal principles of French fraternity in the van! While talking of taking Canada, some of us were shuddering for our own safety at home. He spoke from facts, when he said that the night-bell never tolled for fire in Richmond that the mother did not hug her infant more closely to her bosom. He had been a witness of some of the alarms in the capital of Virginia. Mr. R. then proceeded to notice the unjust and illiberal imputation of British attachments, against certain characters in this country, sometimes insinuated in that House, but openly avowed out of it. Against whom were these charges brought? Against men, who in the war of the Revolution were in the councils of the nation, or fighting the battles of your country. And by whom were they made? By runaways, chiefly from the British dominions, since the breaking out of the French troubles. He indignantly said--it is insufferable. It cannot be borne. It must, and ought, with severity, be put down in this House, and, out of it, to meet the lie direct. We have no fellow feeling for the suffering and oppressed Spaniards! Yet even them we do not reprobate. Strange! that we should have no objection to any people or Government, civilized or savage, in the whole world. The great Autocrat of all the Russias receives the homage of our high consideration. The Dey of Algiers and his Divan of Pirates are very civil, good sort of people, with whom we find no difficulty in maintaining the relations of peace and amity--"Turks, Jews, and Infidels;" Mellimelli, or the Little Turtle; barbarians and savages of every clime and color, are welcome to our arms. With chiefs of banditti, negro or mulatto, we can treat and can trade. Name, however, but England, and all our antipathies are up in arms against her. Against whom? Against those whose blood runs in our veins; in common with whom we claim Shakspeare, and Newton, and Chatham, for our countrymen; whose form of government is the freest on earth, our own only excepted; from whom every valuable principle of our own institutions has been borrowed--representation, jury trial, voting the supplies, writ of habeas corpus--our whole civil and criminal jurisprudence--against our fellow Protestants identified in blood, in language, in religion with ourselves. In what school did the worthies of our land, the Washingtons, Henrys, Hancocks, Franklins, Rutledges of America learn those principles of civil liberty which were so nobly asserted by their wisdom and valor? And American resistance to British usurpation had not been more warmly cherished by these great men and their compatriots; not more by Washington, Hancock, and Henry, than by Chatham and his illustrious associates in the British Parliament. It ought to be remembered, too, that the heart of the English people was with us. It was a selfish and corrupt Ministry, and their servile tools, to whom we were not more opposed than they were. He trusted that none such might ever exist among us--for tools will never be wanting to subserve the purposes, however ruinous or wicked, of Kings and Ministers of State. He acknowledged the influence of a Shakspeare and Milton upon his imagination, of a Locke upon his understanding, of a Sidney upon his political principles, of a Chatham upon qualities which, would to God! he possessed in common with that illustrious man--of a Tillotson, a Sherlock, and a Porteus, upon his religion. This was a British influence which he could never shake off. He allowed much to the just and honest prejudices growing out of the Revolution. But by whom had they been suppressed when they ran counter to the interests of his country? By Washington. By whom, would you listen to them, are they most keenly felt? By felons escaped from the jails of Paris, Newgate, and Kilmainham, since the breaking out of the French Revolution--who, in this abused and insulted country, have set up for political teachers, and whose disciples give no other proof of their progress in Republicanism, except a blind devotion to the most ruthless military despotism that the world ever saw. These are the patriots, who scruple not to brand with the epithet of tory the men (looking towards the seat of Col. STUART) by whose blood your liberties have been cemented. These are they, who hold in so keen remembrance the outrages of the British armies, from which many of them were deserters. Ask these self-styled patriots where they were during the American war, (for they are for the most part old enough to have borne arms,) and you strike them dumb--their lips are closed in eternal silence. If it were allowable to entertain partialities, every consideration of blood, language, religion, and interest, would incline us towards England; and yet, shall they be alone extended to France and her ruler, whom we are bound to believe a chastening God suffers as the scourge of a guilty world! On all other nations he tramples--he holds them in contempt--England alone he hates; he would, but he cannot despise her--fear cannot despise. And shall we disparage our ancestors?--shall we bastardize ourselves by placing them even below the brigands of St. Domingo? with whom Mr. Adams had negotiated a sort of treaty, for which he ought to have been and would have been impeached, if the people had not previously passed sentence of disqualification for their service upon him. This antipathy to all that is English must be French. But the outrages and injuries of England, bred up in the principles of the Revolution, he could never palliate, much less defend them. He well remembered flying with his mother, and her new-born child, from Arnold and Phillips--and how they had been driven by Tarleton and other British pandoors from pillar to post, while her husband was fighting the battles of his country. The impression was indelible on his memory--and yet (like his worthy old neighbor, who added seven buck-shot to every cartridge at the battle of Guilford, and drew a fine sight at his man) he must be content to be called a tory by a patriot of the last importation. Let us not get rid of one evil (supposing it to be possible) at the expense of a greater--_mutatis mutandis_. Suppose France in possession of the British naval power--and to her the trident must pass should England be unable to wield it--what would be your condition? What would be the situation of your seaports and their seafaring inhabitants? Ask Hamburg, Lubec. Ask Savannah. What, sir! when their privateers are pent up in our harbors by the British bull-dogs, when they receive at our hands every rite of hospitality, from which their enemy is excluded, when they capture within our own waters, interdicted to British armed ships, American vessels; when such is their deportment towards you, under such circumstances, what could you expect if they were the uncontrolled lords of the ocean? Had those privateers at Savannah borne British commissions, or had your shipments of cotton, tobacco, ashes, and what not, to London and Liverpool, been confiscated, and the proceeds poured into the English Exchequer--my life upon it! you would never have listened to any miserable wire-drawn distinctions between "orders and decrees affecting our neutral rights," and "municipal decrees," confiscating in mass your whole property. You would have had instant war! The whole land would have blazed out in war. And shall republicans become the instruments of him who had effaced the title of Attila to the "Scourge of God!" Yet even Attila, in the falling fortunes of civilization, had, no doubt, his advocates, his tools, his minions, his parasites in the very countries that he overran--sons of that soil whereon his horse had trod; where grass could never after grow. If perfectly fresh, Mr. RANDOLPH said (instead of being as he was--his memory clouded, his intellect stupefied, his strength and spirits exhausted) he could not give utterance to that strong detestation which he felt towards (above all other works of the creation) such characters as Zingis, Tamerlane, Kouli-Khan, or Bonaparte. His instincts involuntarily revolted at their bare idea. Malefactors of the human race, who ground down man to a mere machine of their impious and bloody ambition. Yet, under all the accumulated wrongs, and insults, and robberies of the last of these chieftains, are we not in point of fact about to become a party to his views, a partner in his wars? But before this miserable force of ten thousand men was raised to take Canada, he begged them to look at the state of defence at home--to count the cost of the enterprise before it was set on foot, not when it might be too late--when the best blood of the country should be spilt, and naught but empty coffers left to pay the cost. Are the bounty lands to be given in Canada? It might lessen his repugnance to that part of the system, to granting these lands, not to those miserable wretches who sell themselves to slavery for a few dollars and a glass of gin, but in fact to the clerks in our offices, some of whom, with an income of fifteen hundred or two thousand dollars, lived at the rate of four or five thousand, and yet grew rich--who perhaps at that moment were making out blank assignments for these land rights. He would beseech the House, before they ran their heads against this post, Quebec, to count the cost. His word for it, Virginia planters would not be taxed to support such a war--a war which must aggravate their present distresses; in which they had not the remotest interest. Where is the Montgomery, or even the Arnold, or the Burr, who is to march to Point Levi? He called upon those professing to be republicans to make good the promises held out by their republican predecessors when they came into power--promises which, for years afterwards, they had honestly, faithfully fulfilled. We had vaunted of paying off the national debt, of retrenching useless establishments; and yet had now become as infatuated with standing armies, loans, taxes, navies, and war, as ever were the Essex Junto. What republicanism is this? WEDNESDAY, December 11. _Foreign Relations._ The House resumed the consideration of the report of the Committee on Foreign Relations. Mr. RICHARD M. JOHNSON said he rose to thank the committee for the report which was offered to the House, and the resolutions which were recommended; though the measures fell short of his wishes, and, he believed, of public expectation. The ulterior measures, however, promised by the committee satisfied his mind, and he should give the report his warm support. The chairman had given the views of the committee. The expulsion of the British from their North American possessions, and granting letters of marque and reprisal against Great Britain are contemplated. Look at the Message of the President. At a moment least to be expected, when France had ceased to violate our neutral rights, and the olive branch was tendered to Great Britain, her orders in council were put into a more rigorous execution. Not satisfied with refusing a redress for wrongs committed on our coasts and in the mouths of our harbors, our trade is annoyed, and our national rights invaded; and, to close the scene of insolence and injury, regardless of our moderation and our justice, she has brought home to the "threshold of our territory," measures of actual war. As the love of peace has so long produced forbearance on our part, while commercial cupidity has increased the disposition to plunder on the part of Great Britain, I feel rejoiced that the hour of resistance is at hand, and that the President, in whom the people has so much confidence, has warned us of the perils that await them, and has exhorted us to put on the armor of defence, to gird on the sword, and assume the manly and bold attitude of war. He recommends filling up the ranks of the present military establishment, and to lengthen the term of service; to raise an auxiliary force for a more limited time; to authorize the acceptance of volunteers, and provide for calling out detachments of militia as circumstances may require. For the first time since my entrance into this body, there now seems to be but one opinion with a great majority--that with Great Britain war is inevitable; that the hopes of the sanguine as to a returning sense of British justice have expired; that the prophecies of the discerning have failed; and, that her infernal system has driven us to the brink of a second revolution, as important as the first. Upon the Wabash, through the influence of British agents, and within our territorial sea by the British navy, the war has already commenced. Thus, the folly, the power, and the tyranny of Great Britain, have taken from us the last alternative of longer forbearance. Mr. J. said we must now oppose the farther encroachments of Great Britain by war, or formally annul the Declaration of our Independence, and acknowledge ourselves her devoted colonies. The people whom I represent will not hesitate which of the two courses to choose; and, if we are involved in war, to maintain our dearest rights, and to preserve our independence, I pledge myself to this House, and my constituents to this nation, that they will not be wanting in valor, nor in their proportion of men and money to prosecute the war with effect. Before we relinquish the conflict, I wish to see Great Britain renounce the piratical system of paper blockade; to liberate our captured seamen on board her ships of war; relinquish the practice of impressment on board our merchant vessels; to repeal her Orders in Council; and cease, in every other respect, to violate our neutral rights; to treat us as an independent people. The gentleman from Virginia (Mr. RANDOLPH) has objected to the destination of this auxiliary force--the occupation of the Canadas, and the other British possessions upon our borders where our laws are violated, the Indians stimulated to murder our citizens, and where there is a British monopoly of the peltry and fur trade. I should not wish to extend the boundary of the United States by war if Great Britain would leave us to the quiet enjoyment of independence; but, considering her deadly and implacable enmity, and her continued hostility, I shall never die contented until I see her expulsion from North America, and her territories incorporated with the United States. It is strange that the gentleman would pause before refusing this force, if destined to keep the negroes in subordination--who are not in a state of insurrection as I understand--and he will absolutely refuse to vote this force to defend us against the lawless aggressions of Great Britain--a nation in whose favor he had said so much. But, he has a dislike to the Canadian French, French blood is hateful to him. I have no doubt but the Canadian French are as good citizens as the Canadian English, or the refugee tories of the Revolution; nor have I any doubt but a great majority of that vast community are sound in their morals and in their politics, and would make worthy members of the United States. But, open the sacred pages of the Journals of the Congress of 1774-'75--that Congress which commenced, and conducted to victory, the American Revolution. Upon the pages of the first volume (from page 54 to 100) we will find letters addressed to the inhabitants of Canada and the province of Quebec, containing the language of affectionate respect, and, in the warmth of patriotism, inviting them to unite against British tyranny, to make the cause of quarrel common, and to enter into the union of the States on the principles of equality. The encroachments of Great Britain are depicted in the most vivid colors, and then they say "we shall consider the violation of your rights a violation of our own, and you are invited to accede to the confederacy of the States." Thus, the patriots of the Revolution styled the inhabitants of the British provinces friends and fellow-sufferers in 1774: although then but a handful of men compared to their present numbers, and only ten years had elapsed from their first incorporation with the British dominions; and nothing but the want of physical power and means prevented their independence in 1776. The misfortunes of our arms at Quebec, and in that quarter, are well known. These overtures of the Old Congress did not stop here. After the Articles of Confederation had been adopted, the door was left open for the reception of the Canadas, and the hope was not lost until British arms riveted the chains of slavery upon them, which at that time could not be broken. Now, sir, these people are more enlightened, they have a great American population among them, and they have correct ideas of liberty and independence, and only want an opportunity to throw off the yoke of their taskmakers. Let us not think so meanly of the human character and the human mind. We are in pursuit of happiness, and we place a great value upon liberty as the means of happiness. What, then, let me ask, has changed the character of those people, that they are to be despised? What new order of things has disqualified them for the enjoyment of liberty? Has any malediction of Heaven doomed them to perpetual vassalage? Or, will the gentleman from Virginia pretend to more wisdom and more patriotism than the constellation of patriots who conducted the infant Republic through the Revolution? In point of territorial limit, the map will prove its importance. The waters of the St. Lawrence and the Mississippi interlock in a number of places, and the great Disposer of Human Events intended those two rivers should belong to the same people. But it has been denied that British influence had any agency in the late dreadful conflict and massacre upon the Wabash; and this is said to vindicate the British nation from so foul a charge. Sir, look to the book of the Revolution. See the Indian savages in Burgoyne's army urged on every occasion to use the scalping-knife and tomahawk--not in battle, but against old men and women, and children; in the night, when they were taught to believe an Omniscient eye could not see their guilty deeds; and thus hardened in iniquity, they perpetrated the same deeds by the light of the sun, when no arm was found to oppose or protect. And when this crying sin was opposed by Lord Chatham, in the House of Lords, the employment of these Indians was justified by a speech from one of the Ministry. Thus we see how the principles of honor, of humanity, of Christianity, were violated and justified in the face of the world. Therefore, I can have no doubt of the influence of British agents in keeping up Indian hostility to the people of the United States, independent of the strong proofs on this occasion; and, I hope it will not be pretended that these agents are too moral or too religious to do the infamous deed. So much for the expulsion of Great Britain from her dominions in North America, and their incorporation into the United States of America. The gentleman from Virginia says we are identified with the British in religion, in blood, in language, and deeply laments our hatred to that country, who can boast of so many illustrious characters. This deep-rooted enmity to Great Britain arises from her insidious policy, the offspring of her perfidious conduct towards the United States. Her disposition is unfriendly; her enmity is implacable; she sickens at our prosperity and happiness. If obligations of friendship do exist, why does Great Britain rend those ties asunder, and open the bleeding wounds of former conflicts? Or does the obligation of friendship exist on the part of the United States alone? I have never thought that the ties of religion, of blood, of language, and of commerce, would justify or sanctify insult and injury--on the contrary, that a premeditated wrong from the hand of a friend created more sensibility, and deserved the greater chastisement and the higher execration. What would you think of a man, to whom you were bound by the most sacred ties, who would plunder you of your substance, aim a deadly blow at your honor, and in the hour of confidence endeavor to bury a dagger in your bosom? Would you, sir, proclaim to the world your affection for this miscreant of society, after this conduct, and endeavor to interest your audience with the ties of kindred that bound you to each other? So let it be with nations, and there will be neither surprise nor lamentation that we execrate a Government so hostile to our independence--for it is from the Government that we meet with such multiplied injury, and to that object is our hatred directed. As to individuals of merit, whether British or French, I presume no person would accuse the people of the United States of such hatred to them, or of despising individuals, who might not be instrumental in the maritime despotism which we feel; and this accounts for the veneration we have for Sidney and Russell, statesmen of whom the gentleman has spoken; they are fatal examples why we should love the British Government. The records of that Government are now stained with the blood of these martyrs in freedom's cause, as vilely as with the blood of American citizens; and certainly we shall not be called upon to love equally the murderer and the victim. For God's sake let us not again be told of the ties of religion, of laws, of blood, and of customs, which bind the two nations together, with a view to extort our love for the English Government, and more especially when the same gentleman has acknowledged that we have ample cause of war against that nation--let us not be told of the freedom of that corrupt Government whose hands are washed alike in the blood of her own illustrious statesmen, for a manly opposition to tyranny, and the citizens of every other clime. But I would inquire into this love for the British Government and British institutions, in the gross, without any discrimination. Why love her rulers? Why kiss the rod of iron which inflicts the stripes without a cause? When all admit we have just cause of war, such attachments are dangerous, and encourage encroachment. I will venture to say, that our hatred of the British Government is not commensurate with her depredations and her outrages on our rights, or we should have waged a deadly war against her many years past. The subject of foreign attachments and British hatred has been examined at considerable length. I did not intend to begin that discussion, but I will pursue it, and though I make no charge of British attachments, I will, at all times, at every hazard, defend the Administration and the Republican party against the charge of foreign partialities--French or Spanish, or any other kind, when applied to the measures of our Government. This foreign influence is a dangerous enemy; we should destroy the means of its circulation among us--like the fatal tunic, it destroys where it touches. It is insidious, invisible, and takes advantage of the most unsuspecting hours of social intercourse. I would not deny the good will of France nor of Great Britain to have an undue influence among us. But Great Britain alone has the means of this influence to an extent dangerous to the United States. It has been said that Great Britain was fighting the battles of the world--that she stands against universal dominion threatened by the arch-fiend of mankind. I should be sorry if our independence depended upon the power of Great Britain. If, however, she would act the part of a friendly power towards the United States, I should never wish to deprive her of power, of wealth, of honor, of prosperity. But if her energies are to be directed against the liberties of this free and happy people, against my native country, I should not drop a tear if the fast-anchored isle would sink into the waves, provided the innocent inhabitants could escape the deluge and find an asylum in a more favorable soil. And as to the power of France, I fear it as little as any other power; I would oppose her aggressions, under any circumstances, as soon as I would British outrages. The ties of religion, of language, of blood, as it regards Great Britain, are dangerous ties to this country, with her present hostile disposition--instead of pledges of friendship they are used to paralyze the strength of the United States in relation to her aggressions. There are other ties equally efficacious. The number of her commercial traders within our limits, her agents, &c., the vast British capital employed in our commerce and our moneyed institutions, connected with her language, ancestry, customs, habits, and laws. These are formidable means for estranging the affections of many from our republican institutions, and producing partialities for Great Britain. Now I shall attend to the charge of partiality in our measures towards France. It is an insinuation not founded in fact, and can only exist in the imagination of those who may insinuate it. We are not driven to mere declarations--the truth of the assertion is bottomed upon the statute records of the United States; and we appeal to the character of every measure relative to foreign relations, since the adoption of the embargo, in consequence of the violation of neutral rights upon the high seas. The direct object of the Berlin and Milan decrees was the ruin of all trade to British ports--and the object of the Orders in Council was the destruction of all commerce to French ports and ports from which the British flag was excluded. The gentleman from Virginia has called the military regular forces mercenaries. If by this appellation any reproach or degradation is intended, its justice and propriety is denied. In times like the present, when dangers thicken upon us, at the moment when we are compelled by most wanton tyranny upon the high seas, and upon land may be added, to abandon our peaceful habits for the din of arms, officers and soldiers in this country are governed by the noble feelings of patriotism and of valor. The history of the world may be ransacked; other nations may be brought in review before us, and examples of greater heroism cannot be quoted, than shall be performed in battle by our officers and soldiers, military and naval and marine. The deeds of their ancestors would be before them; glory would animate their bosoms, and love of country would nerve the heart to deeds of mighty fame. If, therefore, there should not be a diminution of respect for those who entertain an opinion so degrading to our army, it should at least be understood that such opinions do not lessen the confidence due to those who faithfully serve their country, and who would lay down their life for it. This reflection brings to memory the late memorable conflict upon the Wabash. Governor Harrison pitched his tents near the Prophet's town; and although this fanatic and his followers collected, and the American forces were anxious to finish the work by an open and daylight engagement, if there was a necessity to resort to arms, their impetuous valor was easily stayed, when they were informed that the white flag of peace was to be hoisted next morning, and the effusion of blood was to be spared. But in the silent watches of the night, relieved from the fatigues of valor, and slumbering under the perfidious promises of the savages, who were infuriated and made drunk by British traders, dreaming of the tender smile of a mother, and the fond embraces of affectionate wives, and of prattling children upon their knees, on their return from the fatigues of a campaign!--the destroyers came with the silent instruments of death, the war club, the scalping knife, the tomahawk, and the bow and arrow; with these they penetrate into the heart of our forces--they enter the tents of our officers--many close their eyes in death--it was a trying moment for the rest of our heroes, but they were equal to the dreadful occasion. The American forces flew to arms; they rallied at the voice of their officers, and soon checked the work of death. The savages were successively and successfully charged and driven until daylight, when they disappeared like the mist of morning. In this dreadful conflict many were killed and wounded on both sides; and the volunteers and the regiment under Colonel Boyd acted and fought with equal bravery and to their immortal honor. The volunteers from Kentucky were men of valor and worth--young men of hopeful prospects, and married men of reputation and intelligence, governed by no mercenary views--honor prompted them to serve their country. Some of these fallen heroes were my acquaintances, my friends: one not the least conspicuous lived in my district--Colonel Owens; Colonel Daviess, a neighbor. You, Mr. Speaker, know the worth of some of these men; and I regret that you are not in my place to speak their praise. So long as the records of this transaction remain, the 9th of November will not be forgotten, and time shall only brighten the fame of the deeds of our army, and a tear shall be shed for those who have fallen. But the loss will not be felt by the public alone: the friends of their social hours will regret their loss; the widow will mourn her disconsolate situation; the orphan shall cry for the return of his father in vain; and the mother carry her sorrow to the grave. Let this ornamented hall be clothed with the symbols of mourning, although our army proved victorious in war; and to their memory let a monument be erected in the hearts of a grateful country. Mr. WRIGHT.--Mr. Speaker, I must beg the indulgence of the House while I deliver my opinion on the subject now under consideration, the most important that has been submitted to the Congress of the United States. I, sir, shall take the liberty of varying the question from the honorable member from Virginia, (Mr. RANDOLPH,) who yesterday considered it a question of peace or war. I shall consider it as a question of war or submission, dire alternatives, of which, however, I trust no honest American can hesitate in choosing, when the question is correctly stated and distinctly understood. The gentleman from Virginia contends that it is a dispute about the carrying trade, brought on us by the cupidity of the American merchants, in which the farmer and planter have little interest; that he will not consent to tax his constituents to carry on a war for it; that the enemy is invulnerable on the "mountain wave," the element of our wrongs, but should they violate the "_natale solum_," he would point all the energies of the nation and avenge the wrong. Was that gentleman stricken on the nose by a man so tall that he could not reach his nose, I strongly incline to think his manly pride would not permit him to decline the conflict. Sir, the honorable member is incorrect in his premises, and, of course, in his conclusions. I will endeavor to convince him of this, and shall be gratified if I can enlist his talents on the side of a bleeding country. Sir, the violations of the commercial rights of which we complain do not only embrace the carrying trade, properly so called, but also the carrying of the products of our own soil, the fruits of our own industry; these, although injurious only to our property, are just causes of war. But, sir, the impressment of our native seamen is a stroke at the vitals of liberty itself, and although it does not touch the "_natale solum_," yet it enslaves the "_nativos filios_"--the native sons of America; and, in the ratio that liberty is preferable to property, ought to enlist the patriotic feelings of that honorable member, and make his bosom burn with that holy fire that inspired the patriots of the Revolution. Sir, the carrying trade--by which I mean the carrying articles, the growth, produce, or manufacture of a foreign clime--except articles contraband of war--is as much the right of the American people as the carrying the products of their own soil, and is not only secured by the law of nations, but by the positive provisions of the British Treaty. To us, sir, it is an all-important right. We import from the West Indies, annually, property to the amount of forty millions of dollars, for which we pay in the products of our own soil; of this, ten millions only are consumed in the United States, and the surplus thirty millions are exported to foreign countries, on which the American merchant pays three per cent. on the duties to the United States, obtains the profits on the freight of thirty millions of dollars, and furnishes a market for American productions to the same amount. The honorable gentleman from Virginia said, that that little spot in Maryland, Baltimore, which was well fortified and secure from an attack, had unbounded influence; "that the lords of Baltimore" governed the Representatives of Maryland in their votes on this subject. No, sir, every district of Maryland solemnly protests against submission to any foreign power, and I have no doubt will approve the votes of their members on this floor, "to prepare for war," or for war itself, rather than submission. Baltimore, by the industry and commercial enterprise of her citizens, has grown out of the sea into a great commercial city, has diffused the benefits of commerce into every section of the State, by making a great demand for the products of our soil and industry, and a consequent increase of price, whereby every foot of land in Maryland is made more valuable, and whereby the interest of every part of the State is identified with theirs; for this she is justly entitled to our respect. But, sir, she has no occasion to infuse her patriotic fire--so pre-eminent in the case of the Chesapeake--into the Representatives of Maryland. They know the wishes of their constituents, and will most certainly obey them. Mr. Speaker, the gentleman from Virginia has declared that, if he could believe that the late massacre of the troops, in the attack on Governor Harrison by the Indians, under the Prophet, was the effect of British agency, he would unite with us, heart and hand, and personally assist to avenge the bloody deed. I feel a confidence, that if the gentleman will attend to the circumstances of this case, and take a retrospective view of the conduct of the British Government, he will feel no doubt of the fact. I will take the liberty of pointing the gentleman's attention to some of the prominent features of that government, which will go far in establishing that fact. When Dunmore, Governor of Virginia, in 1775, found it necessary to quit the seat of government, and go on board the fleet for safety from the Revolutionary vengeance of the patriots of Virginia--at a period, too, when the Americans were suing for justice by their humble petitions to the King and Parliament; and when that Chatham, the gentleman from Virginia has so highly extolled, was the advocate of our violated rights--Dunmore issued a proclamation inviting the negroes to his standard; to cut the throats of their masters; and promised them a pardon. This fact I know, from having presented that proclamation to a court at Northampton in Virginia, to induce them to commute the punishment of death, passed on some of the victims of his perfidy, to working in the mines; which they did. I will next remind the gentleman of the speech of Lord Dorchester to the Indians after the peace, in which he advises them to use the tomahawk and scalping-knife, whereby numbers of the inhabitants of the frontiers, of all ages, sexes, and conditions, were sacrificed. This was the cause of the Indian war that shortly after took place. This fact was attested by the newspapers of the day, which had universal credit. These cases go to prove that the principles that ought to govern civilized nations, have, at all times, been totally disregarded by the officers and agents of that Government. After these cases, we shall feel little hesitation in believing there was a British agency in the case of the massacre by the Prophet's troops on Governor Harrison's detachment, when the circumstances relied on are duly considered. At the late great council with Governor Harrison, the chiefs of many tribes were convened, all of whom, except Tecumseh, the Prophet's brother, in their speeches avowed their friendly dispositions, and their devotion to peace with the United States. Tecumseh, who, with a number of his tribe, came from Fort Malden, in Canada, declared his hostile intentions against the United States, left the council with that avowed intention, and returned again to Fort Malden. Shortly after this, the Shawanees assembled a large body in arms in the Indiana Territory, under the Prophet, and committed the assault on the troops of Governor Harrison, though they have paid for their temerity. This, I trust, connected as it is with the immorality and extraordinary pretensions of that Government at this crisis, will satisfy, not only the gentleman from Virginia, but this House, of a British agency in the case. Mr. Speaker, I regret that the gentleman from Virginia should ascribe to gentlemen of the West, a disposition for war, with a view to raise the price of their hemp; or to the gentlemen of the North, with a view to raise the price of their beef and flour. These, sir, are selfish motives, and such I cannot for a moment believe will be taken into consideration; they will, with every other section of the Union, unite in deciding it on its merits.; they will count the wrongs we have sustained; they will reflect that the honor, the interest, and the very independence of the United States, is directly attacked; they will, as guardians of the nation's rights, agreeably to the advice of the Administration, "put the United States into an armor and an attitude demanded by the crisis, and correspondent with the national spirit and expectations;" they will prepare to chastise the wrongs of the British Cabinet, which the President tells us, "have the character as well as the effect of war, on our commercial rights, which no independent nation can relinquish." They will decide with the President, the Executive organ of the nation's will, "that these wrongs are no longer to be endured." They will decide with the Committee of Foreign Relations, "that forbearance longer to repel these wrongs has ceased to be a virtue," and, I hope they will decide with me, that submission is a crime; and, sir, if they will examine a document on that table, I mean the returns of the twelfth Congress, and compare them with the eleventh, they will find nearly one-half of the eleventh Congress removed. This, sir, may correctly be considered as the sentence of the nation against the doctrine of submission; it is certainly an expression of the nation's will, in a language not to be misunderstood, and too serious in its application not to be respected. We have also, sir, the expression of Maryland, through her Senate, who unanimously approved the spirited resolutions introduced by the late Governor, who did not suffer his exposed situation, so alarming in the opinion of the gentleman from Virginia, to deter him from doing his duty. We have also, sir, the resolutions of the Legislature of Pennsylvania, an honest test of their non-submission principles. Mr. Speaker, I cannot forbear the remark that, while the gentleman from Virginia ascribes to the West and to the North interested motives, he confesses that the situation of the blacks in the State he represents, impressed as they are with the new French principles of liberty, and their desire for the fraternal hug, are seriously to be feared; that these new principles have been taught them by the peddlers from the East, who, while they sell their trinkets, inculcate these doctrines. He suffers his fears for the State he represents, in the event of a war, on account of the blacks, to _interest_ him; and had he not told us that, if the "_natale solum_" was touched, or that, if there was a British agency in the late attack on Governor Harrison, he would go to war, I should have been ready to conclude that, as the state of the blacks would be a permanent objection, no cause could occur that would induce him to go to war. Mr. Speaker, the gentleman from Virginia says he expects to be charged with being under British influence; however, he disregarded it. I assure him I shall not be one of his accusers; I believe him governed by _himself_, and influenced by pure American motives, and that, if he saw the subject as I do, his bosom would burn with the same sacred fire to avenge our wrongs; and were I to hear him charged in his absence with British influence, I should repel it, notwithstanding he has told us, in a prideful manner, that he had descended from British ancestors; that, from a Shakspeare he had formed his taste, from a Locke, his mind, from a Chatham, his politics, from a Sydney his patriotism, from a Tillotson his religion. Mr. Speaker, had I been that honorable member, I should have boasted a nobler line of ancestry; I should have claimed my descent from the beardless Powhatan, and the immortal Pocahontas; and I should have taken as models, from my own State, a Henry for my eloquence, a Jefferson for my politics, a Washington for my patriotism, and a Madison, or rather the Oracles of Revolution, for my religion. But, sir, I am myself so much a Roman, that I can truly say, in their language, "_Aut genus aut proavos, aut qua non fecimus ipse, vix ea nostra voco_." "Honor and shame from no condition rise, Act well your part, there all the honor lies." Sir, the charge of foreign influence, and the recrimination of one political party by the other, are unpleasant things. I should rejoice to see the curtain of oblivion drawn over them, and all uniting under the nobler distinction of American. THURSDAY, December 12. _Foreign Relations._ The House resumed the consideration of the report of the Committee on Foreign Relations. Mr. CALHOUN.--Mr. Speaker: I understood the opinion of the Committee of Foreign Relations differently from what the gentleman from Virginia (Mr. RANDOLPH) has stated to be his impression. I certainly understood that committee as recommending the measures now before the House as a preparation for war; and such in fact was its express resolve, agreed to, I believe, by every member except that gentleman. I do not attribute any wilful misstatement to him, but consider it the effect of inadvertency or mistake. Indeed, the report could mean nothing but war or empty menace. I hope no member of this House is in favor of the latter. A bullying, menacing system has every thing to condemn and nothing to recommend it; in expense, it is almost as considerable as war; it excites contempt abroad, and destroys confidence at home. Menaces are serious things; and, if we expect any good from them, they ought to be resorted to with as much caution and seriousness as war itself, and should, if not successful, be invariably followed by it. It was not the gentleman from Tennessee (Mr. GRUNDY) that made this a war question. The resolve contemplates an additional regular force; a measure confessedly improper but as a preparation for war, but undoubtedly necessary in that event. Sir, I am not insensible of the weighty importance of this question, for the first time submitted to this House, as a redress of our long list of complaints against one of the belligerents; but, according to my mode of thinking on this subject, however serious the question, whenever I am on its affirmative side, my conviction must be strong and unalterable. War, in this country, ought never to be resorted to but when it is clearly justifiable and necessary; so much so, as not to require the aid of logic to convince our reason, nor the ardor of eloquence to inflame our passions. There are many reasons why this country should never resort to it but for causes the most urgent and necessary. It is sufficient that, under a Government like ours, none but such will justify it in the eye of the nation; and were I not satisfied that such is the present case, I certainly would be no advocate of the proposition now before the House. Sir, I might prove the war, should it ensue, justifiable, by the express admission of the gentleman from Virginia; and necessary, by facts undoubted and universally admitted, such as that gentleman did not pretend to controvert. The extent, duration, and character of the injuries received; the failure of those peaceful means heretofore resorted to for the redress of our wrongs, is my proof that it is necessary. Why should I mention the impressment of our seamen; depredation on every branch of our commerce, including the direct export trade, continued for years, and made under laws which professedly undertake to regulate our trade with other nations; negotiation resorted to time after time, till it is become hopeless; the restrictive system persisted in to avoid war, and in the vain expectation of returning justice? The evil still grows, and in each succeeding year swells in extent and pretension beyond the preceding. The question, even in the opinion and admission of our opponents, is reduced to this single point--which shall we do, abandon or defend our own commercial and maritime rights, and the personal liberties of our citizens employed in exercising them? These rights are essentially attacked, and war is the only means of redress. The gentleman from Virginia has suggested none--unless we consider the whole of his speech as recommending patient and resigned submission as the best remedy. Sir, which alternative this House ought to embrace, it is not for me to say. I hope the decision is made already, by a higher authority than the voice of any man. It is not for the human tongue to instill the sense of independence and honor. This is the work of nature--a generous nature, that disdains tame submission to wrongs. This part of the subject is so imposing, as to enforce silence even on the gentleman from Virginia. He dared not to deny his country's wrongs, or vindicate the conduct of her enemy. Only one point of that gentleman's argument had any, the most remote, relation to this point. He would not say we had not a good cause of war, but insisted that it was our duty to define that cause. If he means that this House ought, at this stage of the proceeding, or any other, to enumerate such violations of our rights as we are willing to contend for, he prescribes a course which neither good sense nor the usage of nations warrants. When we contend, let us contend for all our rights; the doubtful and the certain, the unimportant and essential. It is as easy to struggle, or even more so, for the whole as a part. At the termination of the contest, secure all that our wisdom and valor and the fortune of the war will permit. This is the dictate of common sense; such also is the usage of nations. The single instance alluded to, the endeavor of Mr. Fox to compel Mr. Pitt to define the object of the war against France, will not support the gentleman from Virginia in his position. That was an extraordinary war for an extraordinary purpose, and could not be governed by the usual rules. It was not for conquest, or for redress of inquiry, but to impose a Government on France, which she refused to receive; an object so detestable, that an avowal dare not be made. Sir, here I might rest the question. The affirmative of the proposition is established. I cannot but advert, however, to the complaint of the gentleman from Virginia the first time he was up on this question. He said he found himself reduced to the necessity of supporting the negative side of the question, before the affirmative was established. Let me tell that gentleman, that there is no hardship in his case. It is not every affirmative that ought to be proved. Were I to affirm the House is now in session, would it be reasonable to ask for proof? He who would deny its truth, on him would be the proof of so extraordinary a negative. How, then, could the gentleman, after his admissions, with the facts before him and the nation, complain? The causes are such as to warrant, or rather make it indispensable in any nation not absolutely dependent to defend its rights by force. Let him, then, show the reasons why we ought not so to defend ourselves. On him, then, is the burden of proof. This he has attempted; he has endeavored to support his negative. Before I proceed to answer the gentleman particularly, let me call the attention of the House to one circumstance: that is, that almost the whole of his arguments consisted of an enumeration of evils always incident to war, however just and necessary; and that, if they have any force, it is calculated to produce unqualified submission to every species of insult and injury. I do not feel myself bound to answer arguments of the above description; and if I should touch on them, it will be only incidentally, and not for the purpose of serious refutation. The first argument of the gentleman which I shall notice, is the unprepared state of the country. Whatever weight this argument might have, in a question of immediate war, it surely has little in that of preparation for it. If our country is unprepared, let us remedy the evil as soon as possible. Let the gentleman submit his plan; and, if a reasonable one, I doubt not it will be supported by the House. But, sir, let us admit the fact and the whole force of the argument, I ask whose is the fault? Who has been a member for many years past, and has seen the defenceless state of his country even near home, under his own eyes, without a single endeavor to remedy so serious an evil? Let him not say "I have acted in a minority." It is no less the duty of the minority than a majority to endeavor to serve our country. For that purpose we are sent here, and not for that of opposition. We are next told of the expenses of the war, and that people will not pay taxes. Why not? Is it a want of capacity? What, with one million tons of shipping, a trade of near $100,000,000, manufactures of $150,000,000, and agriculture of thrice that amount, shall we be told the country wants capacity to raise and support ten thousand or fifteen thousand additional regulars? No; it has the ability, that is admitted; but will it not have the disposition? Is not the course a just and necessary one? Shall we, then, utter this libel on the nation? Where will proof be found of a fact so disgraceful? It is said, in the history of the country twelve or fifteen years ago. The case is not parallel. The ability of the country is greatly increased since. The object of that tax was unpopular. But on this, as well as my memory and almost infant observation at that time serve me, the objection was not to the tax, or its amount, but the mode of collection. The eye of the nation was frightened by the number of officers; its love of liberty shocked with the multiplicity of regulations. We, in the vile spirit of imitation, copied from the most oppressive part of European laws on that subject, and imposed on a young and virtuous nation all the severe provisions made necessary by corruption and long growing chicane. If taxes should become necessary, I do not hesitate to say the people will pay cheerfully. It is for their Government and their cause, and would be their interest and duty to pay. But it may be, and I believe was said, that the nation will not pay taxes, because the rights violated are not worth defending, or that the defence will cost more than the profit. Sir, I here enter my solemn protest against this low and "calculating avarice" entering this hall of legislation. It is only fit for shops and counting-houses, and ought not to disgrace the seat of sovereignty by its squalid and vile appearance. Whenever it touches sovereign power, the nation is ruined. It is too short-sighted to defend itself. It is an unpromising spirit, always ready to yield a part to save the balance. It is too timid to have in itself the laws of self-preservation. It is never safe but under the shield of honor. Sir, I only know of one principle to make a nation great, to produce in this country not the form but real spirit of union, and that is, to protect every citizen in the lawful pursuit of his business. He will then feel that he is backed by the Government; that its arm is his arms; and will rejoice in its increased strength and prosperity. Protection and patriotism are reciprocal. This is the road that all great nations have trod. Sir, I am not versed in this calculating policy; and will not, therefore pretend to estimate in dollars and cents the value of national independence, or national affection. I cannot dare to measure, in shillings and pence, the misery, the stripes, and the slavery of our impressed seamen; nor even to value our shipping, commercial, and agricultural losses, under the Orders in Council and the British system of blockade. I hope I have not condemned any prudent estimate of the means of a country, before it enters on a war. This is wisdom, the other folly. Sir, the gentleman from Virginia has not failed to touch on the calamity of war; that fruitful source of declamation, by which pity becomes the advocate of cowardice; but I know not what we have to do with that subject. If the gentleman desires to repress the gallant ardor of our countrymen by such topics, let me inform him, that true courage regards only the cause--that it is just and necessary--and that it despises the pain and danger of war. If he really wishes to promote the cause of humanity, let his eloquence be addressed to Lord Wellesley or Mr. Percival, and not the American Congress. Tell them, if they persist in such daring insult and injury to a neutral nation, that, however inclined to peace, it will be bound in honor and interest to resist; that their patience and benevolence, however great, will be exhausted; that the calamity of war will ensue; and that they, in the opinion of wounded humanity, will be answerable for all its devastation and misery. Let melting pity, and regard to the interest of humanity, stay the hand of injustice, and, my life on it, the gentleman will not find it difficult to call off his country from the bloody scenes of war. We are next told of the danger of war! I believe we are all ready to acknowledge its hazard and accidents; but I cannot think we have any extraordinary danger to contend with, at least so much as to warrant an acquiescence in the injuries we have received. On the contrary, I believe no war can be less dangerous to internal peace, or national existence. But, we are told of the black population of the South. As far as the gentleman from Virginia speaks of his own personal knowledge, I will not pretend to contradict him; I only regret that such is the dreadful state of his particular part of the country. Of the Southern section, I too have some personal knowledge, and can say that, in South Carolina, no such fears in any part are felt. But, sir, admit the gentleman's statement; will a war with Great Britain increase the danger? Will the country be less able to repress insurrection? Had we any thing to fear from that quarter, which I sincerely disbelieve, in my opinion, the precise time of the greatest safety is during a war in which we have no fear of invasion--then the country is most on its guard; our militia the best prepared; and standing force the greatest. Even in our Revolution no attempts were made by that portion of our population; and, however the gentleman may frighten himself with the disorganizing effects of French principles, I cannot think our ignorant blacks have felt much of their baneful influence. I dare say more than one-half of them never heard of the French Revolution. But, as great, as is the danger from our slaves, the gentleman's fears end not there--the standing army is not less terrible to him. Sir, I think a regular force, raised for a period of actual hostilities, cannot be called a standing army. There is a just distinction between such a force, and one raised as a peace establishment. Whatever may be the composition of the latter, I hope the former will consist of some of the best materials of the country. The ardent patriotism of our young men, and the reasonable bounty in land which is proposed to be given, will impel them to join their country's standard and to fight her battles; they will not forget the citizen in the soldier, and, in obeying their officer, learn to contemn their constitution. In our officers and soldiers we will find patriotism no less pure and ardent than in the private citizen; but, if they should be depraved, as represented, what have we to fear from twenty-five or thirty thousand regulars? Where will be the boasted militia of the gentleman? Can one million of militia be overpowered by thirty thousand regulars? If so, how can we rely on them against a foe invading our country? Sir, I have no such contemptuous idea of our militia--their untaught bravery is sufficient to crush all foreign and internal attempts on their country's liberties. But we have not yet come to the end of the chapter of dangers. The gentleman's imagination, so fruitful on this subject, conceives that our constitution is not calculated for war, and that it cannot stand its rude shock. This is rather extraordinary--we must depend upon the pity or contempt of other nations, for our existence. The constitution, it seems, has failed in its essential part, "to provide for the common defence." No, says the gentleman from Virginia, it is competent for a defensive, but not an offensive war. It is not necessary for me to expose the error of this opinion. Why make the distinction in this instance? Will he pretend to say, that this is an offensive war; a war of conquest? Yes, the gentleman has dared to make this assertion; and for reasons no less extraordinary than the assertion itself. He says, our rights are violated on the ocean, and that these violations affect our shipping, and commercial rights, to which the Canadas have no relation. The doctrine of retaliation has been much abused of late by an unnatural extension; we have now to witness a new abuse. The gentleman from Virginia has limited it down to a point. By his system, if you receive a blow on the breast, you dare not return it on the head, you are obliged to measure and return it on the precise point on which it was received. If you do not proceed with mathematical accuracy, it ceases to be just self-defence; it becomes an unprovoked attack. In speaking of Canada, the gentleman from Virginia introduced the name of Montgomery with much feeling and interest. Sir, there is danger in that name to the gentleman's argument. It is sacred to heroism! It is indignant of submission! This calls my memory back to the time of our Revolution; to the Congress of '74 and '75. Supposing a speaker of that day had risen and urged all the arguments which we have heard on this subject; had told that Congress, "your contest is about the right of laying a tax; and that the attempt on Canada had nothing to do with it: that the war would be expensive; that danger and devastation would overspread our country, and that the power of Great Britain was irresistible." With what sentiment, think you, would such doctrines have been received? Happy for us, they had no force at that period of our country's glory. Had they been then acted on, this Hall would never have witnessed a great nation convened to deliberate for the general good; a mighty empire, with prouder prospects than any nation the sun ever shone on, would not have risen in the West. No; we would have been vile, subjected colonies; governed by that imperious rod which Great Britain holds over her distant provinces. Mr. DESHA said--Mr. Speaker, the report of the Committee on Foreign Relations, of which the resolution now under consideration forms a part, is not what I thought would have been the most advisable to adopt, in order to meet the emergency; not that I was for immediate war, as we are unprepared for that event; but, sir, in addition to the force recommended, and authorizing the arming the merchant vessels, I was for adopting the convoy system. But, sir, as the report is of a character different from the temporizing policy heretofore pursued, and one, if not decisive in itself, which will lead to something decisive; and as I am now perfectly satisfied that it is the intention of the Government to follow it up by ulterior measures, calculated to prove the necessity of these preparatory steps, and as union, under existing circumstances, is all-important, as one of the committee, I am bound to give it my support. Sir, discovering no disposition on the part of Britain to relax in her Orders in Council, to cease her oppression, or to make restitution for the damages we have sustained; but, on the contrary, a manifest disposition to persist in her lawless aggressions, it therefore becomes necessary not to depend any longer on countervailing restrictive systems, but to adopt something of a character more energetic, and more congenial to the wishes of the American people. Sir, while I thought there was the most distant probability of obtaining justice by peace measures, I was an advocate for peace; but, sir, when I see not the least prospect of a revocation of her destructive Orders in Council, of the releasement of our impressed countrymen, a relinquishment of the principle of impressment, nor restitution for damages, I am for assuming a war attitude--consequently shall vote for the report of the committee, because I believe the force there contemplated will be an efficient force, and adequate to the purposes intended, to wit, the subjugation of the British North American Provinces. Sir, to enumerate the aggressions committed on our rights by Britain, the depredations on our commerce, the murder and impressment of our countrymen, and the indignities offered our flag, would be taking up your time unnecessarily--particularly, sir, as those enormities must be recent in the mind of every member present; and as it is time to lay aside the war of words and proceed to actions, I shall not detain you long with any remarks of mine. Sir, remonstrances against atrocities have been made in vain; experience has taught us nothing can be expected from negotiations. We have been negotiating for fifteen or twenty years, at an enormous expense, say nearly half a million of dollars, and the causes of which we complained have regularly increased; insult has been heaped upon injury, we have suffered ourselves to be buffeted, kicked, and treated with all kind of indignities with impunity. Yes, sir, insult has been the result of all late attempts at negotiation; for instance, sir, Mr. Roset was sent for no other purpose than to gull the Government, and because Erskine was disposed to do us justice in part, he was recalled and disgraced. The conduct of the Copenhagen gentleman, Mr. Jackson, demonstrated that he was sent for the purpose of bullying the Government. And pray, Mr. Speaker, what has Mr. Foster been sent for? why, sir, in my opinion, for no other purpose than to operate as an opiate on the Government; to lull us to sleep. As a proof of which, about the commencement of the session, a session convened by proclamation, which was naturally calculated to agitate the public mind, he comes forward with offers of reparation as he calls them, but which in my estimation is no more than a patch, calculated to cover one corner of the wound the nation received, in that wanton and dastardly outrage, the attack on the Chesapeake; but, sir, in his soporifics I trust he will be disappointed. I have no hesitation in saying, that when the letters from this Minister to our Government are examined by the people, that independent of the arrogance bordering on insolence, in which they are couched, so characteristic of that nation, they will have a different effect from that of conciliation; the illiberal and disingenuous demands made preliminary to the revocation of the Orders in Council, will have a tendency to rouse the public mind; they will be looked on with an indignant frown by all real Americans. Sir, we have been constantly annoyed, assaulted openly and insidiously; we have been plundered, oppressed, and insulted; we thought it preferable to forbear while forbearance was possible, than to plunge into the evils of war, to redress the evil of plunder and partial and dastard-like courage; we judged it better to abandon the wealth which the afflictions of the world held out to the avidity of commercial speculation, and consequently withdrew from the ocean, by the adoption of the embargo--a measure of all others the best calculated to meet the then emergency, and which would, I have no hesitation in saying, have produced the desired effect if we had have had firmness enough to have adhered to it, and virtue and patriotism enough to have enforced it. But, sir, partyism was our ruin; it proved that we had as much to fear from our domestic enemies as our foreign foes, and apparently the greatest evil we had to apprehend was in falling a victim to our own political dissensions, occasioned by the deeply-laid plans of our deadly foe, Britain. Sir, during embargo times our domestic enemies, encouraged by a proclamation issued under the authority of the King of England--I say, sir, those minions of royalty concentrating in the East, talked of the violation of laws as a virtue, they demoralized the community by raising the floodgates of civil disorder; they gave absolution to felons, and invited the commission of crimes by the omission of duty. But, sir, the day of retribution is (I trust) not far distant, when those among us who to gain the favor of our enemy have betrayed their country, will sink into insignificance and contempt; the wages of iniquity will not shield them from due infamy. Mr. TROUP rose to make an effort to put an end to the debate; a debate in which the great mass of the House were enlisted on one side, against the solitary gentleman from Virginia (Mr. RANDOLPH) on the other; and declared that he would call for the previous question if it was persevered in. Mr. MACON considered the present, from the turn the debate had taken, the most important question which had come before the National Government for many years past, because it was evidently discussed as a war question, though the real question before the House, if adopted, did not declare war. It was not now a question by what means or by whose measures the nation was brought into its present situation; it must, however, be satisfactory to all, that the Administration has done every thing that could have been expected, to avoid the present crisis, and to keep the nation at peace. If the British Government would cease to violate our neutral and national rights, our difficulties would be at an end. It was no longer a question about the colonial carrying trade--that was at an end; because Great Britain might now be considered as possessing all the West India Islands, and as we have now neither sugar nor coffee to carry, she has determined to execute with rigor her unjust orders against our carrying the productions of our own soil to any market except her own, or that of her allies. This is attacking the best interests of the country; indeed, it is taking the profits of both planter and merchant. Hence, none of our exports bring a price by which we can live, except flour; and that would be no better than any other article of export, was it not that Great Britain and her allies, Spain and Portugal, want it for the support of their armies; it is their wants, and the great difficulty of getting their wants supplied anywhere else, that keeps up the price of wheat. Notwithstanding these were his sentiments, he thought it would be going too far to consent, by the vote he was about to give, that he pledged himself to vote for any measure which the Committee of Foreign Relations might hereafter bring forward, when he did not intend to vote for all the resolutions contained in the report which was now under consideration. Our affairs must now command the serious attention of every man in the nation. We must either prepare to maintain the right to carry our produce to what market we please, or to be content without a market; to attempt another negotiation would be useless; every effort has been made in that way that could be made. Indeed, no one has yet said that he wished another. He was as desirous of peace as he ever was; and if any plan shall be proposed by which the peace of the country can be preserved, and the right to export our native produce maintained, he should still prefer it to war; but if no such plan can be devised, he was willing to go to war for that right. He was also willing to declare the points to the nation for which we went to war, and rather than not succeed, he would carry it on for fifty years, and longer if necessary. He felt no hesitation in declaring, that he would not go to war to encourage the nation, or any part of it, to become manufacturers, (and it may not be amiss to observe that, from the day that this report was laid on the table, we have heard nothing about manufactures;) nor would he go to war for the purpose of building a navy. He mentioned this, because he had heard a good deal said of late about increasing the fleet and building seventy-fours. If, therefore, it was to be a war either to encourage manufactures or to build a fleet, he should be opposed to it; he would rather remain as we are awhile longer, bad as our situation is, than to stick these two set-fasts to the back of the nation, neither of which it could ever get clear of. A peace in Europe might free us from our present embarrassments, but from the other, once established, we can never expect to get free. He could not agree with the gentleman from Georgia (Mr. TROUP) that the House ought now, by the previous question, to put an end to the debate; on the contrary, he wished every member might have full time to deliver his sentiments on this great question; for his part, he wished to hear the opinions of those who lived on the Eastern frontier; he was gratified that several of the members of the Western had favored the committee with theirs. He expressed this wish, because the part of the country which he represented was in the middle country, about the same distance from the mountains and the Atlantic Ocean, in no danger of being surprised or injured by any plundering party; but if the House was to do that which the gentleman from Georgia seemed to desire, it would do no good; because if our object be to invade Canada, it can scarcely be expected that this could be done with our utmost exertions by regular troops, hereafter to be raised, sooner than June or July. Hitherto, our proceedings have been carried on not only with good humor, but with great urbanity also; to stop the debate, might have a tendency to change this, which no one would regret more than the gentleman himself. Before we raise an army, and provide it with every thing necessary for marching, we have much to do. We have now no Washington to command, and since the days of Joshua, I have read of no such man; such men do not appear every century, and a thousand years will hardly produce one. It is quite probable, except the Commander-in-chief, as good or better appointments may be now made, than were made at the beginning of the Revolution; because there are now more men of experience in the country than there were at that time; and, also, because the men of talents and experience are much better known to the National Government now than they then were; besides the selection of officers, the wagons, carts, and provisions, are to purchase, and almost every other article necessary for a marching army. It may not be improper here to remark, that this is not a Government of confidence; and that, before we go too far, we ought, by some means or other, to know who is to command the army. There cannot be much difficulty in this, especially as every department of the Government seems willing to raise a force adequate to the purpose for which it is wanted. And here, sir, permit me to say, that I hope this is to be no party war, but a national war, in which every person in the nation may have a fair chance to participate in the honor and glory to be acquired in the field of battle, and in defence of the rights of his country. Such a war, if war we shall have, can alone, in my judgment, obtain the end for which we mean to contend, without any disgrace. FRIDAY, December 13. _Foreign Relations._ The House resumed the consideration of the report of the Committee of Foreign Relations. Mr. DAWSON.--When we are about to take a step, to assume an attitude which must change all our foreign relations, and may produce a change in our political character, it becomes us to summon all our wisdom--to collect all our moderation and firmness, and to unite all our energies and exertions. It becomes us to be "neither rash nor diffident," or, to use the language of one of the greatest men who ever lived in the tide of times, "Immoderate valor swells into a fault, and fear admitted into public councils betrays like treason." Such, sir, is the situation of the United States at this moment. We are about to take such a step--every sentiment therefore which can be offered demands its proportion of public attention, and renders that apology from me unnecessary, which, on any other occasion, common propriety would justify. After the select Committee on our Foreign Relations had made their report, it seemed to me to be their particular duty to give to this House a full exposition of their present and ulterior views and objects, and of those of the Administration, as far as they had ascertained them, founded on the information which, it is presumed, they possessed. For this I waited with patience, and have listened with attention and with pleasure--it has been given with promptness, with ability, and with candor; and with that perspicuity which frees the mind from all doubt as to the course which, in their judgment, we ought to pursue. And it now rests with us, sir, to determine whether we shall sanction their recommendation--whether we shall adopt those measures necessary and preparatory to a war in which it is probable our country will be engaged. Sir, in the course of my political life, it has been my duty to meet and to decide on some of the most important questions which have been agitated in our public councils, and deeply involving the best interests of our country; these duties I have performed with fidelity and without fear, and I pledge myself never to depart from that line of conduct; and, sir, at no period of my life, nor upon any occasion, have I met any question with more serious deliberation and more undaunted firmness than I do the present. For several years past I have been an advocate for the adoption of every measure, the object of which was to place our country in a complete state of defence, and prepare us to meet any state of things. I have thought, and do think that preparatory and vigorous measures are best calculated to maintain the dignity and secure the peace and happiness of our country--that to be prepared to meet danger is the best way to avert it. These preparations have not been carried to the extent which I have wished--and yet, sir, I am far from thinking that my country is in that feeble state which some gentlemen seem willing to represent it. I feel myself authorized to state, that we have all the necessaries; all the implements; all the munitions necessary for a three years' close war against any force which any power can send to this continent. All that we want, are men. No, sir, pardon the expression--all which we want is an expression of the will of the nation. Let this House, let the constituted authorities declare that will--let them declare "the Republic to be in danger," and thousands and tens of thousands of our fellow-citizens will rally round the standard of their country, resolved to support her rights, avenge her wrongs, or perish in her ruin. Yes, sir, should that awful moment ever arrive, which may Heaven avert!--should we be forced into a war in the defence of our just rights, I trust and believe that there is not a man in the nation, whose situation will permit, who will not be ready to march at his country's call. No man more devoutly prays for peace than I do; no man deprecates large standing armies in the time of peace more than I do. I consider them the bane of society and the danger of republics; but, sir, as peace, honorable peace, is not always at our command, they must be resorted to in time of war. Mr. NELSON protested against the doctrine that in the vote he was about to give he should pledge himself to the support of whatever ulterior measures the Committee of Foreign Relations might choose to adopt. He was sensible that he should hazard the censure of his associates in the Republican cause by the observations he proposed to submit. Nay, his Republican friends might have the audacity to denounce him as an apostate, but the people had intrusted him with their dearest rights and interests, and he was resolved to pursue these according to his best judgment, regardless of the strictures of friends, and of the contumacious abuse of the press. Proscription should have no influence on his conduct. And hence he must express his astonishment at those gentlemen who had threatened the House with the previous question, when they themselves admitted the vast importance of the subject under discussion. Tacitus informs us that even the semi-barbarian Germans, when war was to be decided on, took two several occasions to debate upon it--one, when they were in the full possession of their natural faculties; and, second, when they were excited by extravagant circumstances. But in these enlightened days it seems that we are to decide this all-important question without debate! He begged gentlemen to divest themselves of passion. It was not a time to bow to the influence of improper feelings. They ought calmly and coolly to meet the subject. They were to decide upon a question which was of no momentary nature. If they did go to war, it would be a lasting war; and he agreed with the gentleman from Georgia, (Mr. TROUP,) that if war-speeches were necessary to bring the House to the sticking point, it was much too soon to begin war. He proposed to consider these resolutions as a measure of hostility, according to the views of its advocates, and then as a measure of defensive preparations, agreeable to the spirit of Executive recommendation, which was favorable to peace. What were the objects of the war? To establish our neutral rights, to exempt our seamen from imprisonment, the repeal of the Orders in Council, and of the blockades, and the security of the American flag. What would be the effects of war, the tocsin of which was for the first time sounded through the land? Our country had been blessed by Providence with more than thirty years of peace and plenty. The habits of the people were pacific. The trifling hostilities with England were of no consequence. But now the yeomanry of the country were to be called to arms as if our own territory were to be invaded. He sympathized with the sufferings of his impressed and incarcerated fellow-citizens; but would a territorial war exempt them from impressment? Would it establish our neutral rights? Certainly not. The way to enforce these rights was by a great maritime force, which the nation were incompetent to raise and support. But the advocates of immediate war said that if they could not obtain their objects by direct hostility on the ocean, they could do it by a _succedaneum_--by the exercise of the _lex talionis_ in an indirect way. After issuing letters of marque, they would resort to the invasion of the enemies' territorial provinces. He contended that this would be inefficacious, and maintained that to convert our merchants into privateers would be to turn them loose upon the seas as highway robbers. They would not be competent to carry on a war in this way. They would have abandoned their peaceful pursuits; they would accept a fraternal embrace of French subjects; fight side by side with them, and submit themselves to the will of the French Emperor. However scrupulous gentlemen might now be, when the hour of danger came they would accept the alliance of France. The national interests would be identified with those of the European continent. We should adopt the continental system, in which our liberties and independence would be jeopardized. He deprecated the invasion of Canada as an act of foreign conquest. We could not suppose that Great Britain would slumber over our occupation of it, and where should we find a stationary force able to keep possession of it as a conquered province? Admit it as a sister into the Union, we dare not abandon it at the peace, and therefore we could not give it back for the restoration of our maritime rights. But suppose that Great Britain should be brought to her knees, (and this was all the most valiant of us would ask,) what have we to expect, if the power and the commerce of England should be thrown into the arms of France, from the high, the mighty, the imperial Napoleon? Would he respect us more than England would? They both follow their own interest, as we ought to follow ours. What would be the effect of this war upon ourselves? He feared a war, not from a puerile fear of its expenses or of death, but from a manly dread of the consequences of this war, which must last as long as England had a ship at sea, or a man to man it. It must link us to the destinies of continental Europe; it would place us under complete foreign influence and foreign dominion; it would change our political institutions. The sages who framed the constitution, and illumined it by their commentaries, had predicted that it would not suit to stand the shock of war. The Republic would be ruined by war. We do not want courage. The Revolution had shown proofs of the greatest valor ever exhibited by human nature. But few circumstances besides invasion would justify war. It would strengthen the Executive arm at the expense of the Legislature. The Chief Magistrate would have to carry on the war. He would, upon the plea of necessity, change our appropriations from one object to another. The constitution would be sapped. The legislative power would be destroyed. He cared not for the prices of cotton and tobacco as compared with the constitution. War would introduce a slavish subordination among the people. They would lose their republican simplicity and their republican independence. They would neglect their homespun for the military plume and the gilded epaulette. Their morals would become depraved. Love of idleness, extravagance, and neglect of the dull pursuits of common life, would take place. The desire would again prevail of acquiring large fortunes by aid of invasion, at the expense of the war-worn soldier whose fruits would be taken away for a mere song, as they had been at the close of the Revolution. Cupidity would be introduced, and pervade the public mind. I have made these remarks, Mr. Speaker, to repel the declarations of gentlemen, that to vote for this resolution would pledge me to embark in war. If war is necessary, I would not shrink from it, big as it is with calamity and ruin. It will be the duty of Government to obviate some of its evils. I am in hopes, too, sir, that I have been so fortunate as to check the intemperance of the youth of my country. They will excuse me. I trust we may not be led away by the ardor of youth or of old age. I shall vote for the increase of the regular force, to go hand in hand with my friends, even in a war, if necessary and just. I have not made this speech to prove that I am against war. Mr. FINDLAY said he had frequently observed members, after a question had undergone a very tedious discussion, say that if the yeas and nays had not been called they would not have spoken on the question, but these having been called, they must assign the reasons for their votes. He did not approve of that principle, because if it was to be reduced to practice every member would speak to every such question, and there would be no end of the debate. However, on this question, though he thought it had been sufficiently discussed, yet he deemed it proper to express a few thoughts, not so much to give the reasons for the vote he designed to give, as to explain the principles on which he designed to give his vote. He designed to vote for the resolution before the House, but not surely for the same reasons or with the same determined views that some honorable members have expressed. He would not dwell on the tyrannies and robberies of either the more ancient or modern despots or Governments, of the old world, but confine himself to such as had a direct relation to the question depending before the House. That the aggressions and bad faith of the British Government, and the recommendations of the Executive, were the foundation of the resolutions before the House, was admitted by all that have spoken on the question. In order to be understood he would take a concise retrospect of our relations with Britain since nearly the commencement of the present Government of the United States. During the First Congress an Indian war was commenced on our western frontier, and conducted as usual with savage ferocity; but, believing that it only resulted from the combination of a few tribes, our defensive measures at first were weak, and our first attempts unfortunate. But it soon became such a tedious and expensive war as to require for several years the exertion of all our resources. It had at last a fortunate conclusion; but during its progress our Government and the citizens were fully convinced that the Indians were encouraged and supported by the British Government. We all knew that for several years past Indian councils have been convened by British agents, who influenced them by presents, and employed them as emissaries to excite the peaceable Indians in our own territories to go to war against our new and dispersed settlements. It would be infidelity to doubt the truth of the Indians having received their arms, &c., from British agents, and though these British allies have got a check in the late engagement, yet it also has cost us dear. We have no ground to conclude that the danger is over; revenge is the predominant passion of savages, and though we have not such unequivocal proofs of the British in the present instance exciting the Indians to war, and supplying them for that purpose, as we had in 1793, when President WASHINGTON received a copy of Lord Dorchester's speech to the Indian tribes, encouraging them to war against our settlements, and promising them a co-operation of the British force--the copy of which gracious speech several members yet in Congress saw at that time, and every member has heard of it--through a kind Providence that co-operation was prevented by the defeat of the British armies in Europe. Though we have not at present such explicit proofs that the Indians at present are acting as British allies, yet we have as much proof as the nature of the case can afford, and it would be very unwise if we did not act accordingly. From the above view of the subject, if we had no other cause, I deduce the expediency of increasing our regular force agreeable to the recommendation of the President and of our committee. I think more has been said about taking Canada than was necessary. It is true, that during the same Indian war, it was the opinion of our most sage politicians that we never could be secure against Indian war till we had possession of Canada, and by that means have it in our power to cut off the communication between foreign nations and the Indians on our frontiers and in our own territory. They said that neither our revenue, our credit or population would at that time justify the attempt; but that we were rapidly increasing in population and all other resources, while the nations of Europe are wasting their own strength, but the time was fast approaching when we must repel national insults or surrender our independence. This was said particularly with respect to the impressment of our seamen. At the commencement of this outrage, never committed by any other nation but Britain, the public mind was very sensibly affected by it, but time and the frequent repetition of the injury seems to have rendered the public feelings callous. This put him in mind of what he had sometimes observed, that when the savages scalped a few families on the frontier, the whole country was terribly alarmed, but that after the savage butchery had continued and extended itself for some time, the sensibility seemed to abate. This had been evidently the effect of the continued impressment of our seamen. Mr. ROBERTS observed he should offer no apology for rising so late in this discussion, as the short time for which he was about to ask attention would not justify it. The eloquence and talents which had been so abundantly exhibited on this occasion, would not admit of more than a concise expression of his opinion, without subjecting him, justly, to the charge of presumption. When the report now under consideration came first before the House, I was, said he, of the number of those who were disposed to decide upon it without debate. I have frequently been in the minority on the question of adjournment, from a wish to reach the question on the resolutions. Under these impressions I confess I viewed the challenge, or rather the invitation, given by the gentleman from Tennessee, (Mr. GRUNDY,) "to debate this subject now, if it was to be debated at all," more as the impulse of an ingenuous mind, preferring, on all occasions, an open course, than the dictates of prudence or necessity. Nor was it till after the gentleman from North Carolina (Mr. MACON) had invited and urged discussion, that I became disposed to join in opinion with them, the correctness of which the debate of this day has very much strengthened. By the adoption of this report, we are entering on a system of operations of the utmost national moment; the effects of which the wisest amongst us cannot fully foresee, and on which we have no choice but to act. The discussion has already elicited opinions, which it is well to know exist; and the more so, since some of them admit the holders to vote for the report, while they allow them to be adverse to the measures which are necessarily to follow it. A little time may be well spent in comparing sentiments in this stage of the business, as it may be conducive to celerity of movement in the sequel, and give more certain effect to the measures which must ultimately be followed. Every political community must, of necessity, possess rights, which it may enjoy independently of, and in common with, every other. One of those rights is an uncontrolled jurisdiction over its own territory. It has long ago been found necessary for nations to settle by convention on the great scale where the limits of territory shall cease, and where the high seas shall commence. This convention, or law, has determined that the ships of neutrals shall be a part of the national territory; so long as they are careful to preserve a pacific character. Through the intervention of vessels navigating the high seas, nations in amity are enabled to overcome the want of proximity, and all the purposes of trade and commercial intercourse may thereby be extended, as well to the inhabitants of the remotest corners of the earth, as to those only divided by a geometrical line. An attempt to interrupt this intercourse by a third nation, is so serious an act of hostility and wrong, as not only always to justify, but to demand, resistance. The gentleman from Virginia (Mr. RANDOLPH) has said the Government would not, on a former occasion, go to war, when their trade, which consisted in carrying the produce of one foreign country to another, was annoyed and cut up; and why not, he says, be pacific now, as well as then? While I agree that our national rights extend to both alike, admitting, however, every Government to make her own municipal regulations, I must be allowed to consider our direct export and import trade much better worth contending for, than what has been denominated our carrying trade. The cultivators and owners of the soil have never shown any disposition to fight for the latter trade; and for a very plain and consistent reason. War is sure to bring on its train of evils and expense; and where it is obvious that these will amount to more than the loss of the exercise of a right in its nature of but transitory use and minor interest, a free people may with propriety refuse to hazard them for its support. It is not for such a people to war for a speculative right or an empty name. The carrying trade, it must be owned, was profitable in exercise, but it was a profit that could be given up without vital prejudice to the national interests. Not so with our fair export trade. To yield this would be absolute recolonization. It must not only affect us in the great resources of national strength, but it must break the spirit of our citizens, and make them infidels in the principle of self-government. It would, at the same time, add means and facilities to the aggressing nation to multiply her outrages. Give up the export trade to Great Britain, and you will next be required to give up the coasting trade, and to admit her navigation act to as complete operation in our bays and harbors, as it now has round the limited shores of the British isles. The spirit of commercial monopoly she has so pertinaciously manifested, proves that her ambition craves more than her means can aspire to. The wrongs she has long been and still is committing towards these States, have assumed a character that imperiously calls for a resistance, made by all for the benefit of all. I cannot with some gentlemen doubt the sufficiency of this Government to conduct a war. However congenial a state of peace may be to a Republic, the Constitution of the United States must have been framed with a view to war as well as peace. The members of the grand convention had almost all been active characters in the Revolutionary war. On the subject of war they were certainly more than mere theorists. Honest apprehensions have, too, been entertained in times back of the Government being too strong; I think, however, that we may look with well-grounded confidence for complete sufficiency in it; without being alarmed at the reverse of the picture. While the power of declaring war is vested in Congress; while levies and supplies are within its control; while a check on the appointing powers is vested in the Senate, and a periodical termination of the President's office exists; the Executive arm, though sufficiently untrammelled for necessary and useful command, is effectually paralyzed as to the exercise of power to affect or change the free features of the Government; unless indeed the representation should become utterly corrupt, an event no one can believe possible. I feel much satisfaction at this moment in seeing a man at the head of the Government who had a conspicuous concern in framing the constitution, and whose official duties have since closely connected him with the administration of Government under it. In the Message out of which the report before you has sprung, not the slightest doubt is discoverable of the efficiency of our institutions to sustain us under every exigency that may overtake us. My own reflections on this subject (and they have neither been light nor transitory) have neither served to alarm nor intimidate. I repose in safety on the saving maxim, "never to despair of the Republic." Mr. MCKEE.--Mr. Speaker, I rise to address the House, at this late hour of the debate, with reluctance; but the importance of the question must be my apology. Some gentlemen, in felicitating themselves on account of the temper of the House, evidenced by the determination to adopt vigorous measures against England, have expressed a regret that measures of a similar character had not been resorted to long since. In this sentiment I cannot agree. In reviewing past times, we cannot but perceive that it has been the desire of the Government to avoid being involved in the war with which Europe has been so long desolated, and by dealing out justice to the belligerents, respectively, with an impartial hand, to preserve our neutrality, permitting our citizens peacefully to pursue their private avocations, reaping the rich harvest arising from our neutral commerce. This was certainly a wise policy, and the distinguished success with which it was attended is a clear evidence of its wisdom and propriety. Why, then, should it be condemned? Have any people ever acquired individual wealth with so much rapidity; or have any been more happy in the enjoyment of domestic tranquillity than the people of the United States? None. The wish of the late and the present Administrations was to continue this state of happy prosperity as long as it was practicable, by making acts of wrong and vexation of a minor sort, growing out of the violence of the times, the subject of negotiation, rather than a cause of war. And, is this course of policy now to be condemned, and regrets entered up that we have not been at war years ago? At the opening of the session of Congress, in December, 1809, after the disavowal of Erskine's arrangement, when our relations with England assumed a more unfavorable aspect than at the close of the summer session, the Committee on Foreign Relations, with a desire to preserve our neutrality, presented to the House a measure usually termed Macon's bill, No. 1; a measure which it is now known was approved by the Administration, and had the sanction even of a higher authority, (if such there be.) This measure was calculated in its operation to present serious difficulties to those nations by whom the rights of our neutral flag were disregarded; and, at the same time, it left open to the enterprise of our citizens those channels of trade, not included within the scope of the orders and decrees of the belligerents, as they then stood; a commerce as extensive and valuable as we can expect to enjoy in times of general peace. It was, however, opposed, and successfully, too, by war speeches. It fell, and by its fall the Administration were driven from their ground, and the hopes of maintaining much longer the neutrality of the United States also fell with it. This unfortunate event was succeeded by the act of May, 1810. By this act, the belligerents were invited, in a new form, to withdraw their orders and decrees; promising, on our part, in case either of them should accept the invitation thus given to both, to put in force the non-importation sections of the non-intercourse law against the party persevering in their orders or decrees for three months after their adversary had accepted the invitation thus given. The law of May, 1810, was enacted with a hope that the terms thereby offered to the belligerents, respectively, would induce the one or the other to accept them, and withdraw their orders or decrees. And an expectation was also entertained, that if one of the parties could be induced to relinquish their orders or decrees, the other party would follow the example; and, if this just expectation should be met by a perseverance of either of the parties in their orders or decrees, after their adversary had accepted the invitation thus given, it would test the sincerity of the various and repeated declarations made by them, respectively, that their orders and decrees, affecting our commerce, were reluctantly issued in their own just defence. Those also who preferred war to the preservation of our neutrality, and by whom Macon's bill was rejected, would be relieved from the embarrassment of going to war with two of the most powerful nations in the world, or of selecting which of the two should be made our enemy, at a time when we had just cause of war against both. The fixed and determined hostility of one of the parties towards the United States would be (as it certainly now is) most clearly proved; and thereby our measures of hostility rendered the more necessary, and more likely to receive the unanimous approbation of the American people. My opinion, therefore, is, that it was wise to preserve our neutrality as long as possible, making an appeal to force the last reluctant resort; and, inasmuch as the majority of Congress, in 1809, resolved to change the peaceful character of this country, the intervening period has been employed in a last effort to avert the calamities of war; the result of which has relieved this Government from any liability to the charge of partiality to either of the belligerents, by compelling one of them, by their own act, to present themselves as the object of our just hostility. Mr. STANFORD said, as the resolution before the House contemplated an additional army, and from the avowal of its friends, involved in it the question of peace or war, he felt the desire to assign the reasons of his vote upon so important a subject. He was the more disposed to do so as he should probably find himself in a very small minority upon the question. He was not flattered, he said, with using arguments which would convince others; but for himself he felt their force strong enough to fix his mind against the measure. If he were to vote, he said, for the proposed army, he should vote inconsistently with all his former opinions and principles upon the subject, and he never could think of acting a part inconsistent with himself, and that more especially when all his experience had gone to confirm his first impressions, his honest prejudices against standing armies. Such establishments had always proved the bane of free Governments, and he could not see how we were to get along with them, and remain, as he believed we were, the freest and happiest people upon earth. But, sir, we are told war is to be declared in certain events, and that the army proposed is to invade and take the Canadas. We are then to pass out of the limits of the United States and wage a war of the foreign offensive kind! If such was the contemplated use of this army when raised, he was still the more opposed to the measure. He was against the war itself, and the policy of it, and could by no means yield his vote to bring it about. That there were sufficient cause of war, he was ready to acknowledge, and he was not disposed in any the least degree to palliate the offences of Great Britain, or that of any of the other belligerents, committed on the persons and property of our citizens. All of them had deserved war at our hands, but we had at no time since the commencement of our present Government seen it our interest or policy to give into it, in the open and declared form, nor that of any other form, except that of a _quasi_ character which happened under Mr. Adams's administration. The question never had been whether we had or had not cause of war, but whether the true interest of the United States did not, under all circumstances, call aloud upon us to cherish peace, and to avoid war and its evils as the last of the alternatives before us; and this, said Mr. S., he would be able to show was the Republican doctrine, as well in the old minority times as since that minority grew into a majority. The gentleman from Tennessee (Mr. GRUNDY) had made a direct appeal to the Republican party, and endeavored to rally and unite them in this, to them at least, new doctrine of war. If the appeal of the gentleman had any reference to him, he would beg leave to deny some of his positions. He had himself had some small share to act in the political scenes of '98-9, and he was glad to find from the gentleman's declaration that he had joined in the "clamor" of the day, to pull down the then Federal Administration for the unjustifiable war which they had gone into with France. Mr. S. said he knew he had joined in it most heartily. He believed he then acted right in all he did to supersede that Administration, and he still believed he was right. The best interests of the country forbade the war, and so the people determined, when ultimately they came to decide the question. That party thus ousted by the public voice, the present Republican majority was brought in upon their own professions of better principles, the love of peace and economy. But now, forgetting our old professions under a French crisis, we had raised the cry of war under a British one, and nothing short of it was to save our honor. Mr. S. declared if there was any difference in the causes of war then and now, he thought it turned most decidedly in favor of the former period, since the more intolerable outrage in the case of the Chesapeake had been at length atoned for. What were the facts? French decrees existed at that time against your rightful commerce--he spoke of the arrêttes or decrees of the French directory--these had the same practical effect on our maritime neutral rights that the British orders have now. French cruisers waylaid the mouths of your harbors, and captured your vessels; and the first successful act of the United States after the quasi-war commenced, was, the taking of one of these cruisers in the mouth of one of our harbors. But, said Mr. S., the gentleman from South Carolina, (Mr. CALHOUN,) tells us it is a principle of honor in a nation, as in an individual, to resist a first insult. If such doctrine is to be admitted, when should we have had a moment's peace? From one or the other belligerents of Europe, since their late wars commenced, we have never been without just complaints against them for some violation of our neutral rights, and of course must have taken an early share in their wars. The truth is, we cannot liken, nor will the similitude hold good between an individual's honor, or his sensibility to it, and that of a nation's. A single impressment or capture may be well admitted to form a ground of reprisal and war; but we should have been a ruined country long ere now, if, under the existing circumstances of the world, and belligerent Europe, we had yielded to this quickness of sensibility, and had gone to war for a first and single instance of aggression from either of the belligerents. The same gentleman argues that every thing now calls upon us to make a stand; that there was no danger to our liberties in a standing army of twenty or thirty thousand men, and that all admitted there was justifiable cause of war, and he believed it had now become necessary. This was declaiming, Mr. S. said, very handsomely upon the subject of war, he would agree; and he very well recollected we had heard the same doctrines precisely, and he thought he might be permitted to say, a strain of declamation, at least equally handsome, upon the same subject, and from the same State, in 1798-'9.[17] Mr. S. contended as the then doctrines of war, (and it must be admitted the causes of it were also alike in their character,) it was fair to expect that in due time public opinion would come to be the same in both cases. But, Mr. S. said, he could not perceive how the present, of all others, had become the necessary and accepted time for war with Great Britain. The attack on the Chesapeake frigate had been lately atoned for, to the satisfaction of our Government; and, he trusted, had not been so done as to aggravate the crisis of affairs between the two countries. If calculated to do so, our Government could not have received it. The impressment of our seamen was a just complaint against the British Government; but it commenced under the Administration of General WASHINGTON, and no one would say he was less sensible to national honor and independence than ourselves. Under all the circumstances of that cause of complaint, he did not think it a cause sufficient for him to depart from the neutral ground he had assumed; nor was the annoyance of our commerce less vexatious in his time than since. In like manner, under Mr. Adams's Administration, the same complaints existed, though in that of the latter, not, perhaps, to the same degree; and, under the eight years of Mr. Jefferson's Administration, the same state of things continued, certainly with an increased degree of violence, to which was also added the more aggravating insult upon the Chesapeake. Mr Jefferson had never been suspected of partiality for Great Britain, and then, indeed, the accepted time had come for a war with that Government; all parties were united, and pledged themselves to support him in the war. The pulse of the nation beat high for it. But he felt, because he knew, that peace was the best interest of his country, and forbore to call Congress together. He had always admired the man; but, upon that occasion, he felt more than a sentiment of admiration toward him. When, at length, wrongs had thus accumulated, and called for some system of counteraction and resistance till negotiation could be farther tried, the embargo was resorted to in preference to war; and, when that was done away, a system of non-intercourse was substituted, and to that again succeeded the present alternative law of the same kind; the non-importation system which has grown out of this with Great Britain has not been tried one whole year yet. If gentlemen will have it that this is the accepted time for war, how has it happened that we have not had it before? Our Councils may be presumed to have been as sensible to aggression, and as patriotic to redress it, as we now are. But, Mr. Speaker, said Mr. S., opposed as he was to the idea of the United States becoming one of the belligerent nations--to the linking our destinies with those of the European Powers; to the taking any share in their present conflicts, if his country once determined upon it, he would not then hesitate to vote any force, or other means to bring it to as speedy and as happy an issue as possible: until then he should preserve his own consistency; and contribute in no way to bring about that state of things which, he believed, would prove most ruinous to his country. Mr. KING.--Mr. Speaker, I should not have troubled this House with any remarks of mine, had it not been for the observations which have just fallen from my colleague from North Carolina. I shall not attempt, sir, to follow that gentleman in the history which he has given of the progress of party in this country, but shall content myself with stating, that, in our sentiments, we entirely differ; his is the doctrine of submission; yes, sir, the most abject submission; mine, I trust, is not. I am in favor of the resolution now on your table. I am aware, sir, of the many important considerations which will naturally suggest themselves to the mind of every real friend of his country, when he views the consequences which may result from the adoption of the measure now contemplated. When, sir, the habits of a nation, ingrafted, as it were, in its very nature, are about to be departed from; when the destinies of the country are about to be launched on an untried ocean, and when the doubt is about to be solved, whether our Republican Government is alike calculated to support us through the trials and difficulties of war, and guide us in safety down the gentle current of peace, I am aware, sir, that we should pause and ponder well the subject; that we should divest ourselves of those warm feelings which most generally take possession of our minds on viewing the unjust prostration of the rights of our country. Sir, that interest which I feel, in common with others, on the decision of a question of such magnitude and importance, will, I trust, induce this House to bear with me a moment, while, in a few words, I explain the motives by which I am actuated in giving my decided approbation to the resolution now under consideration. If, sir, I were merely to turn my attention to the local situation of that portion of the country which I have the honor particularly to represent; its extensive and exposed seacoasts, combined with its present commercial advantages; I should, without hesitation, give my vote to the proposed measure. But, sir, as in my individual capacity, I feel at all times willing to make not only pecuniary sacrifices, but to expose my person in vindicating the rights and interests of my country, in my Representative capacity, I will undertake to say, that my constituents will do no less. Sir, the demon Avarice, which benumbs every warm emotion of the soul, has not yet gained the ascendency in the South: the love of country animates every breast, and burns with inextinguishable ardor. Sir, they feel in common, I trust, with a great majority of every portion of this Union, the degradation of our country, in submitting for a moment longer to the dishonorable terms proposed directly or indirectly by the British Government. Mr. Speaker, I hold it to be correct, that, in discussing a subject of such importance, a view of the various matters necessarily connected with it, will not be considered irrelevant: but, sir, I will not weary the patience of this House with a detail of injuries, unparalleled in the history of former times, wantonly inflicted on a nation which manifested to the whole world her sincere desire to support the neutral stand which had been taken at the earliest period of her Government, and most tenaciously adhered to. We have carefully avoided, Mr. Speaker, any participation in that system of politics which has convulsed and distracted the European world. We have restricted ourselves in the full enjoyment of our rights, lest by strictly enforcing them, we might produce a collision with any nation, however little her conduct might be guided by the principles of equity. Sir, we have borne with injury, until, in the language of your committee, forbearance has ceased to be a virtue. We have remonstrated, we have appealed to the justice, to the interest, of the two great contending powers of Europe; every effort proved abortive; our calls for justice were drowned in the declaration that their measures were merely retaliatory, and not intended to interfere with neutral rights; thus, sir, the matter rested, when specific propositions were submitted to each. Yes, sir, by an act which has placed the impartiality of our country beyond the reach of suspicion, we demanded of each the revocation of her obnoxious edicts as the only means of preserving our friendship. We all know what has been the consequence: France has met our advances, has embraced our propositions. Great Britain not only refuses a repeal on her part, but, while she affects to lament the effects produced on neutral rights, takes the most effectual methods to render them perpetual. Sir, blindness and ignorance itself can no longer be deceived by British policy. We have been told, sir, that this will be a war for the support of the carrying trade; let me here remark, and I wish to be distinctly understood, as avowing my determination never to give a vote, so long as I have the honor of a seat on this floor, which will involve this country in a war, for the recovery or support of this extraneous species of commerce. I believe I shall not be incorrect when I assert, that nine-tenths of this country never did and never will derive the smallest benefit from it. But, sir, the right to carry in our own ships the produce of our own country to any quarter, not thereby violating the laws of nations, or contravening legitimate municipal regulations, is one which I never will yield; for, sir, in doing so, we paralyze the industry of our citizens; we give a fatal blow to the best interests of our country. Yes, sir, we yield the principle, we invite to further encroachments. Our country, sir, is agricultural, but so intimately blended with commerce, that the one cannot long exist unaided by the other. Sir, I will not yield an inch of ground, when, by so doing, I destroy an essential right of my country--or sap the foundation of that independence cemented by the blood of our fathers. We were told by a gentleman from Virginia, (Mr. RANDOLPH,) a few days since, that we have sufficient cause for war. I ask you, then, sir, why do we hesitate? Shall we always yield? Shall we always shrink from the contest? The adoption of this resolution is the touchstone--by it we rise or fall. We have been asked, Mr. Speaker, why not lay upon your table a proposition to go to war? It is there, sir; it is contained in this resolution; the moment we give it our sanction we declare our fixed resolve to render effective the force contemplated to be raised. Yes, sir, unless Great Britain manifests a disposition speedily to do us justice--by her acts, sir, not by her words. The gentleman from Virginia calls upon the Representatives of the seacoasts, of the slaveholding States, and asks if they are willing to say to England "we intend to go to war with you." Does the gentleman mean to excite our fears for the loss of our property? As one of the many on this floor who stand in the situation mentioned by that gentleman, I step forth to declare for myself and my constituents, that, when loss of national honor is placed in the scale, and attempted to be balanced by pecuniary interest, we will, without hesitation, kick the beam. But, sir, we are now contending for the restoration of our rights, the deprivation of which strikes at the very foundations of our prosperity. Sir, to us, it matters little whether our cities tumble into ruin by desertion for want of employment, by poverty produced by British wrongs and aggression, or, in vindicating the cause of our country, fall by a quicker process. Sir, I have no fear of invasion, and, therefore, have no fears arising from the black population, which strikes with so much horror on the sensitive mind of the gentleman from Virginia. For my country, Mr. Speaker, I lament its existence; I view it as the bane, the curse of the land, and most sincerely, sir, do I wish that a second Moses could take them by the hand, and lead them in safety to a distant land, where their cries would never more strike on the ear of sympathy. We have been told, sir, that this will be a war of aggrandizement, a war of conquest. I am as little disposed to extend the territory as any other individual of this House. I know that dissimilar interests must and will prevail from a too great extension of our dominion. But, sir, we will not here enter into a discussion, whether an accession of country would or would not conduce to the interests of the Government. Sir, this will be a war forced upon us; we cannot, under existing circumstances, avoid it. To wound our enemy in the most vulnerable part should only be considered. Sir, I trust, if our differences with Great Britain are not speedily adjusted, (of which, indeed, I have no expectation,) we shall take Canada. Yes, sir, by force; by valor; not by seduction, as the gentleman from Virginia expresses it. I have no reliance on their friendship--I hope it will not be calculated on. Sir, I am not deterred from the firm purposes of my mind, by the predictions of the gentleman from Virginia. I have no fears, sir, that the people of our country will desert their Government while asserting the rights of the country; and I must believe, that gentleman's assertion to the contrary notwithstanding, that Virginia will not be the last to afford supplies. Mr. BOYD.--Mr. Speaker, I should not have risen, on the present occasion, had not the honorable Committee of Foreign Relations requested all those that did not intend to vote for such ulterior measures as they might hereafter find necessary to bring forward, would not vote for the present resolutions, as they were a part of a system that might eventuate in war, &c. From those observations, I feel myself, and those that I in part have the honor to represent, called on to say how far I will go, and how far I will not go. Sir, when we talk about war, we ought to know for what we are going to wage it, and to see that the means are commensurate to the end. Let it not be thought by this that I have any apology to make for Great Britain, or her manifold wrongs. I have none. I say, perish the heart, the head and the tongue, that will attempt her justification or apology? No, sir, they are a nation of pirates, and have committed many wrongs on us; and it becomes us to look for our remedy, and how it is to be obtained. We are told that these resolutions are a part of a war measure. I do not receive them as such, but as preparatory to what may happen or become necessary. But, for argument sake, suppose it so, and that we are to have war--your army raised, and ready to march to the Canadas; with how many are you going to take them? In my opinion, not less than fifty thousand men will be required. Suppose the English should be driven out of Spain and Portugal, (which may by this time be the case, or it may soon be so,) what number of troops can she send to reinforce her possessions and meet you? But, say some gentlemen, American blood has been spilt, and we must avenge it. How is that to be done? For gallons will you spill torrents; or am I to understand that we shall have war without bloodshed? Sir, let those that think so turn their attention to the Revolutionary war--the Sugarhouse in New York, the Prevost, the Prison-ship, the Wallabout, Fort Washington, White Plains, Princeton, Trenton, Monmouth, Brandywine, Guildford, and many other places. New Jersey has had her full share of the fighting--other States the benefit; and if we have war again, we shall have our share of fighting--others the loaves and fishes. But, sir, I will not complain: we obtained our liberty, and I am willing to support it in the best possible manner. But here another question arises. You go to war for the right to export our surplus produce--tobacco, cotton, flour, with many other articles. Let me ask, what will be your export while that war continues? Will you have any? I think not. But I will suppose that you could export without interruption; would the whole of the exportable produce pay for the war during the continuance of it? No, it would not. Sir, it would take less money from the Government to pay for it, and make a fire of it. Nearly thirty years have elapsed since the Revolutionary war, and that war not half paid for. Is not the war-worn soldier calling on us every day with his demands? You are about to drain your Treasury, borrow money, enlarge your pension list, build additional hospitals, increase our national debt, not to be extinguished or paid off, but to be a lasting burden on the people. But, say the honorable committee, our honor requires it. It is well; I honor the spirit and magnanimity of the committee, and have no doubt of their courage and zeal for our country's rights. But, sir, you must take young men for action--old men for counsel. It is an easy matter to go to law or war, but it is a hard matter to get out of it. The gentleman from Maryland, (Mr. WRIGHT,) in defending the character of the soldier, has given us a quotation, viz: "Honor and shame from no condition rise, Act well your part, there all the honor lies." I will give him another, from the same authority, viz: "A wit's a feather, a chiefs a rod;[18] An honest man's the noblest work of God." But, apart from this, let us suppose war, and admit that it will be successful, so far as proposed--the British driven from the Canadas and Halifax, and their trade intercepted for years to an extensive amount--what then has she to hope or fear from us? Nothing. Will she then respect our rights? No. But I will suppose that we force her to a treaty of amity and commerce, acknowledging our rights to the utmost of our wishes; how long will she keep it? Not an hour longer than suits her convenience or interest. There is no trust to be put in her compacts. Witness Erskine's arrangement. I say, keep on your restrictions; keep the country in peace, if possible, under all your privations, and they are many. Has not our country increased in wealth and population, in a superior degree to any country on earth? Are we not at this moment in the enjoyment of peace and plenty at home--every man under his own vine and fig-tree, and none to make him afraid--with complete protection for person and property? Yes. But our merchants must be protected--they have a right to our protection, say some--it is the merchant that gives life and spring to agriculture. I deny it. It is the planter--the cultivator--that is the foundation on which every other branch of our associated population depends; and it is the surplus of his productions that makes the merchant, and his profits that make the banks. You have made many laws for their protection; they have disobeyed them all, and will disobey them. Have they not told you, continually, to let them alone; that they knew their own business best? Sir, before I would engage in a war, to which I could not see a prospect of a favorable issue, I would let them alone. Sir, the President is made, by the constitution, the treaty-making power; he is also to give us the state of the Union. He is the Executive. He has given us the state of the Union, and made his requisitions; and if I give him what he asks, I give him enough; and _that_ I am willing to give, and more, when he shall require it. But I am not to be forced further yet. It appears to me that the honorable committee has a mind to _Gideonize_ us--rejecting the fearful and faint-hearted. Will they prove us by the _waters_, and reject all such as will not lap as the dog lappeth? For, sir, they have told us that all that did not intend to vote for such ulterior measures as they might have occasion hereafter to bring forward, ought not to vote for the resolutions. Now, sir, it remains for me to tell them and the House, that I will not leave the ranks of my country. I will vote for the resolutions, and consider myself at liberty to vote hereafter as the nature of the case may require, and my conscience shall direct. I have no more to say at this time. MONDAY, December 16. _Foreign Relations._ The House then resumed the consideration of the unfinished business, being the report of the Committee of Foreign Relations. Mr. RANDOLPH said that he could not express his deep sense of the politeness of the House, except by the regret he felt at the very poor return which they were about to receive for their indulgence. He lamented that it was not in his power to thank, in the name of all the old Republicans of 1798 and 1799, his worthy friend from North Carolina, (Mr. STANFORD,) for the sound, sensible, pertinent, and constitutional speech, which he had delivered the other day against this resolution. But he feared, if a writ were to issue against that old party--as had been facetiously said, in another body, of our valiant Army--it would be impossible for a constable with a search warrant to find it. There must be a return of _non est inventus_. Death, resignation, and desertion had thinned their ranks. They had disappeared. New men and new doctrines had succeeded. He was astonished at the frailty of some memories; or rather, at their aptness to remember to forget every thing but what subserved their present purposes. The nation had been brought into its present alarming and unprecedented situation by means in nowise unaccountable--by steps as direct and successive as Hogarth's celebrated series of prints, "The Rake's Progress," beginning at the gaming table and ending in a jail, or in bedlam. Our difficulties began to show themselves in 1805 and 1806, when _a wise man from the East_ (Bidwell) was sent to govern the American House of Commons, in quality of manager. With what degree of fidelity he had discharged this duty, we might judge from that which he had since displayed in far inferior trusts. We had commenced our system somewhat on the plan of Catharine of Russia, when she lent her nominal aid to the coalition; we had dealt even more profusely than she in manifestoes; we began, under the instigation of mercantile cupidity, to contend by proclamations and resolutions for the empire of the ocean. But, instead of confining ourselves as she had done to this bloodless warfare, we must copy the wise example of her successors, and after our battle of Friedland, he supposed, we also should have our peace of Tilsit. He gave the little minority praise for having kept the Administration in check, under the salutary restraint of a rigorous examination of their acts--although the Administration had run away with the credit of wishing to take a strong attitude, and had thrown the blame of thwarting their measures on the opposition. That opposition had been composed of all sects and persuasions; but he now perceived that the greater part of them (the Federalists) had gone over to the Court party, for a very obvious reason--because they foresee at the end of the journey, Mr. Speaker, that your defeat will secure their triumph. I wish the gentlemen on my left (the majority) joy of their new travelling companions. The gentleman from Maryland had expressed surprise at Mr. RANDOLPH'S manner of speaking of our origin from an English stock. Could that gentleman repose his head upon his pillow without returning thanks to God that he was descended from English parentage? Whence but from that origin came all the blessings of life, so far as political privileges are concerned? To what is it owing that we are at this moment deliberating under the forms of a free representative government? Suppose we had been colonies of any other European nation--compare our condition with that of the Spanish, Portuguese, or French settlements in America? To what was our superiority owing? To our Anglo-Saxon race. Suppose we had descended from those nations--from the last, especially, which stood self-condemned, on her own confession, as incapable of free government, hugging her chains, glorying in her shame, priding herself in the slave's last poor distinction, the splendor of her tyrant master? Had we sprung from the loins of Frenchmen, (he shuddered at the thought!) where would have been that proud spirit of resistance to Ministerial encroachment on our rights and liberties, which achieved our independence? We should have submitted to the tea tax, the stamp act, and the whole train of Grenville and North ministerial oppression. That which we lifted our hands against in determined scorn, would have been deemed an indulgence. Look at the province of New Spain, or Mexico, as it is, not with strict propriety, called. With a physical force greatly superior to ours in 1776, she had not dared to burst the chains of Spanish despotism, divided, weakened, almost extinct as was the Spanish monarchy. Mr. R. adverted to historical documents to show that America ought to be proud of her Anglo-Saxon descent. We were vastly particular about the breed of our horses, cattle, and sheep, but careless of the breed of human nature. And yet to our Anglo-Saxon origin we owed our resistance to British tyranny. Who were the members of our first Congress? From Massachusetts, Samuel Adams, (and t'other Adams too,) Robert Treat Paine, not _Tom_. From Connecticut, Roger Sherman, a man of the most profound political wisdom. From New York, James Duane, John Jay. From New Jersey, William Livingston. From Pennsylvania, Thomas Mifflin. From Delaware, Cæsar Rodney, Thomas McKean. From Maryland, William Paca. From Virginia, Peyton Randolph, George Washington, Patrick Henry, Richard Bland, Edmund Pendleton. From South Carolina, Henry Middleton, John Rutledge, Christopher Gadsden, Edward Rutledge. In what school had these illustrious men formed those noble principles of civil liberty asserted by their eloquence and maintained by their arms? Among the grievances stated in their remonstrance to the King, a "standing army" met us at the threshold. It was curious to see in that list of wrongs, so many that had since been self-inflicted by us. It had been asked, why was the country unprepared for defence? Was he expected to answer this question? The Administration and their overwhelming majorities must answer it. They had wantoned in the plenitude of their power. Who could say them nay? Was it Mr. RANDOLPH'S fault that the gentleman from South Carolina had never, in the course of his extensive experience, heard of a proposition to arm the whole body of the militia? which had been damned with a faint appropriation of two hundred thousand dollars, when millions were lavished upon miserable _oyster_ boats. The Clerk of the Senate could not forbear a sneer when he read the title of the bill, at the recollection of the means to enforce it. Mr. R. had proposed himself an annual million until the work should be accomplished. He would forever stand up for the militia. It was not in the scoffs of the epaulette gentry, who, for any service they have seen, are the _rawest militia_, to degrade them in his eyes. Who were they? Ourselves--the country. Arm them and you are safe, beyond the possibility of danger. Yearly did the standing army sweep off the money, while the militia received empty praise. He would rather see the thing reversed. But there will forever be a Court and Country party. The standing army is the devoted creature of the Court. It must forever be so. Can we wonder that it should be cherished by its master? He spoke of a mercenary soldier in terms of the strongest abhorrence. He would ever uphold the militia; and he detested standing armies, as the profligate instruments of despotism, as the bloodhounds of hell. They would support any and every existing Government. In all history he remembered only one instance of their deserting their Government and taking part with the people; and that was when the Duke of Orleans had bribed the army of the last of the Bourbon Kings. A mercenary soldier was disgusting to our senses; was odious and detestable to the eye of reason, republicanism and religion. Yet, that "mere machine of murder," rude as it is, was the manufacturer of all the Cæsars, and Cromwells, and Bonapartes, of the earth; consecrated by a people's curse, not loud but deep, to the infernal gods. As from the filth of the kennel and common sewer, spread the pestilence that carried havoc through a great city, so from this squalid, outcast, homeless wretch sprung the scourge of military despotism. And yet we are told that there was no danger from an army of 30,000 or 40,000 men. With 5,000 Cæsar had passed the Rubicon. With 22,000 he fought the battle of Pharsalia, which rendered him master of the world. To come to later times--what number had Bonaparte, when, deserting his companions in arms, he returned a solitary fugitive from Egypt, to overturn that Government, which if it had possessed one particle of energy, if it had been possible for the civil authority to cope with military power, would have cashiered him for having ruined one of the best-appointed fleets and armies that ever sailed from a European port? Well might the father of political wisdom (Lord Chatham) say to the Parliament of England, "entrench yourselves in parchment to the teeth, the sword will find a passage to the vitals of the constitution." As good a Republican as ever sat on that floor, (Andrew Fletcher of Saltoun,) had dissolved his political friendship with the Earl of Sunderland, when he found him supporting an army; and the event justified his sagacity. Cromwell, the affected patron of liberty, always encouraged the army. We know the consequence. It was a fundamental principle of free Government that a Legislature which would preserve its liberty must avoid that canker, a standing army. Are we to forget, as chimerical, our notions of this institution, which we imbibed from our very cradles, which are imprinted on our Bills of Rights and Constitutions, which we avowed under the reign of John Adams? Are they to be scourged out of us by the birch of the unfledged political pedagogues of the day? If he were the enemy of this Government, could he reconcile it to his principles, he would follow the example set him in another quarter, and say to the majority, _go_ to your inevitable destruction! He likened the people under this joint operation of the two parties, Ministerial and Federal, to the poor client between two lawyers, or the cloth between the tailor's shears. He was glad to hear from his venerable friend that this was not to be a party war. When the last additional force bill was raised, to which this was about to be superadded, it was an indispensable preliminary to an appointment, to sign, or to promise to sign, the thirty-nine articles of the creed of the reigning political church. But now the political millennium was at hand--already had John Adams and Citizen Genet laid down, like the lion and the lamb, in the same fold. And if they were not joined by their fellow-laborer in Newgate, it was his keeper's fault, not that of his inclination. Citizen _Genet_, now an American patriot of the first order, who extols "_our_ WASHINGTON;" the champion of the laws of nations; the vindicator of American rights against foreign (and, of course, French) aggression! He was glad to hear that it was not to be a war for the protection of manufactures. To domestic manufactures, in the true sense of the term, he had always been, and ever should be, a friend; he had taken a pride in clothing himself in them until it was attempted to be made a political test. He abhorred tests of all sorts, political and religious, and never would submit to them. He was sick of this cant of patriotism, which extended to a man's victuals, drink, and clothes. He had, from a sort of obstinacy that belonged to him, laid aside the _external_ use of these manufactures; but he was their firm friend, and of the manufacturers also. They were no new things to him; no Merino hobby of the day; he had known them from his infancy. He had been almost tempted to believe, from the similarity of character and avocations, that Hector had a Virginian wife; that Lucretia herself--for she had displayed the spirit of a Virginian matron--was a Virginian lady. Where were they found? Spinning among their handmaids! What was the occupation of a Virginian wife--her highest ambition? To attend to her domestic and household cares; to dispense medicine and food to the sick; to minister to the comfort of her family, her servants, and her poor neighbors, where she had any. At the sight of such a woman his heart bowed down, and did her reverence. Compare with such a being your gad-about card-players. Mr. RANDOLPH said that if the Empress Queen had presented herself decked in the spoils of a ravaged world, at the late exhibition, in contrast with our American matrons, bearing the triumphs of their own ingenuity and industry, we should have looked upon her, and all her splendor, with scorn and contempt in our hearts, although, from politeness to the sex, as gentlemen, we should have suppressed the sentiment. He could not conclude without noticing the parallel attempted to be drawn by the gentleman from South Carolina, Mr, CALHOUN--not quite indeed after the manner of Plutarch--between himself and an illustrious statesman, (Lord Chatham.) The gentleman had been pleased to say, that at the mention of his name, Mr. RANDOLPH'S heart had seemed to smite him. It had indeed smitten him: from a sensation which he trusted that gentleman might never feel: against which he seemed well secured. It was a consciousness of his own unworthiness to sustain the high duties imposed upon him by his country, which the recollection of that great man's name had, at the moment, called up. He felt humbled in the contemplation of his worth. Would to God! he possessed some portion of his powers; that he could borrow his eagle-eye, his withering look, the unrivalled majesty of his manner, the magic of his voice, at once the music and the thunder of the spheres, to rouse the House to a sense of their country's danger. In one respect, however, he might boast that he possessed some qualities in common with that immortal statesman. He might assert as lofty a spirit, as unyielding an adherence to the deliberate convictions of his own understanding, as Lord Chatham himself; who, because he set his face against corruption, and had the art of making every coward scoundrel in the nation his foe--concentrating upon himself the "rays of royal indignation, which might illumine but could not consume him;" who, because with intuitive glance he penetrated, resolved and combined every interest of his country, and each design of her enemies, and reached his object "by the flashes of his mind, which, like those of his eye, might be felt but could not be followed," was by the plodding, purblind, groping politicians of the day, attempted to be held up as an empty declaimer, a theatrical gesticulator. Gentlemen must not expect him to quit the anchorage of his own judgment in order to pursue the _ignes fatui_ that wander about Goose Creek.[19] Mr. Speaker, my heart is full--the recollection of that matchless orator and statesman has filled me with unspeakable feelings. To excite them there was no need of the cruel and insulting comparison which the gentleman from South Carolina (Mr. CALHOUN) had attempted to draw between that gigantic statesman and the pigmy who now addresses you. The question was now taken on concurring with the Committee of the Whole in their agreement to the second resolution, which is in the following words: "That an additional force of ---- thousand regular troops ought to be immediately raised, to serve for three years; and that a bounty in lands ought to be given to encourage enlistment." And carried as follows: YEAS.--Willis Alston, jr., William Anderson, Stevenson Archer, Daniel Avery, Ezekiel Bacon, John Baker, David Bard, Josiah Bartlett, Burwell Bassett, William W. Bibb, William Blackledge, Harmanus Bleecker, Thomas Blount, Adam Boyd, James Breckenridge, Robert Brown, William A. Burwell, William Butler, John C. Calhoun, Langdon Cheves, James Cochran, John Clopton, Thomas B. Cooke, Lewis Condit, William Crawford, Roger Davis, John Dawson, Joseph Desha, Samuel Dinsmoor, Elias Earle, James Emott, William Findlay, James Fisk, Asa Fitch, Meshack Franklin, Thomas Gholson, Thomas R. Gold, Charles Goldsborough, Peterson Goodwyn, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, Aylett Hawes, Jacob Hufty, John M. Hyneman, Richard M. Johnson, Joseph Kent, Philip B. Key, William R. King, Abner Lacock, Joseph Lefever, Peter Little, Robert Le Roy Livingston, William Lowndes, Aaron Lyle, Nathaniel Macon, George C. Maxwell, Thomas Moore, Archibald McBryde, William McCoy, Samuel McKee, Alexander McKim, Arunah Metcalf, James Milnor, Samuel L. Mitchill, James Morgan, Jeremiah Morrow, Hugh Nelson, Anthony New, Thomas Newbold, Thomas Newton, Stephen Ormsby, William Paulding, jr., Israel Pickens, William Piper, Benjamin Pond, Peter B. Porter, Josiah Quincy, William Reed, Henry M. Ridgely, Samuel Ringgold, John Rhea, John Roane, Jonathan Roberts, William Rodman, Ebenezer Sage, Thomas Sammons, Ebenezer Seaver, John Sevier, Adam Seybert, Samuel Shaw, John Smilie, George Smith, John Smith, Silas Stow, William Strong, George Sullivan, Peter Tallman, Uri Tracy, George M. Troup, Charles Turner, jr., Pierre Van Cortlandt, jr., Robert Whitehall, David R. Williams, William Widgery, Thomas Wilson, Robert Wright, and Richard Wynn--110. NAYS.--Abijah Bigelow, Elijah Brigham, Epaphroditus Champion, Martin Chittenden, John Davenport, jr., William Ely, Edwin Gray, Richard Jackson, jr., Lyman Law, Joseph Lewis, jr., Jonathan O. Mosely, Joseph Pearson, Timothy Pitkin, jr., Elisha R. Potter, John Randolph, Daniel Sheffey, Richard Stanford, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Laban Wheaton, and Leonard White--22. The question was then taken on the third resolution, in the following words: "That it is expedient to authorize the President, under proper regulations, to accept the service of any number of volunteers, not exceeding fifty thousand; to be organized, trained, and held in readiness to act on such service as the exigencies of the Government may require." And carried: yeas 113--nays 16. The question was next taken on the fourth resolution, in the following words: "That the President be authorized to order out from time to time such detachments of the militia, as in his opinion the public service may require." And carried: yeas 120--nays 8. The question was then taken on the fifth resolution, in the words following: "That all the vessels not now in service belonging to the Navy, and worthy of repair, be immediately fitted up and put in commission." And carried: yeas 111--nays 15. The question was put from the Chair on the sixth resolution, in these words: "6. That it is expedient to permit our merchant vessels, owned exclusively by resident citizens, and commanded and navigated solely by citizens, to arm under proper regulations, to be prescribed by law, in self-defence, against all unlawful proceedings towards them on the high seas." When the resolution was, on motion, ordered to lie on the table. The three first resolutions, for filling up the present establishment, for raising an additional number of regulars, and authorizing the acceptance of volunteers' services, were referred to the committee who reported them, with instructions to bring in bills in pursuance thereof. TUESDAY, December 17. _Mississippi Territory--Ordinance of 1787._ Mr. POINDEXTER, from the committee to whom the said report was committed, reported the same with an amendment; which was read, and referred to the Committee of the Whole on Monday next. The report is as follows: The committee, to whom was referred the memorial of the Legislative Council and House of Representatives of the Mississippi Territory, and the petition of sundry citizens thereof, praying to be admitted into the Union of the United States on an equal footing with the original States; and also the petition of the inhabitants of West Florida, setting forth their desire to be annexed to said Territory, for reasons therein contained, have had these subjects under consideration, and beg leave to submit the following report: That there has existed in the Mississippi Territory a temporary government, founded on the ordinance for the government of the Territory Northwest of the river Ohio, since the eleventh day of April, one thousand seven hundred and ninety-eight. That, although this ordinance has undergone some modifications, extending, in a limited degree, the rights and privileges of the citizens, it still contains provisions incompatible with political liberty, and unfavorable to a due and impartial administration of justice, in the redress of private wrongs and injuries. The Chief Executive Magistrate is charged with the execution of the laws; is commander-in-chief of the militia; has the sole power of appointment to offices, civil and military, within the Territory, and the removal of these officers at pleasure; is vested with an unqualified veto on all bills passed by the other co-ordinate branches of the Legislature; and is, moreover, clothed with the odious and arbitrary authority to prorogue and dissolve the General Assembly whenever, in his opinion, it shall be expedient. These high and regal prerogatives, constituting some of the most obvious characteristics which distinguish an absolute monarchy from the constitution of a free State, are confided to the discretionary exercise of a Governor, who is neither chosen by, nor responsible to, the people. He is often a total stranger to the local interests and circumstances of the country over which he possesses such unlimited control, and is accountable only for malconduct or corruption in office to the President of the United States. The only security which exists against the frequent and wanton abuse of these powers is to be found in the mild and conciliatory disposition uniformly manifested by the General Government towards its territories. But experience has shown that, in all colonial governments, officers situated at a remote distance from the tribunal to which they are responsible, too frequently "feel power and forget right;" and, by eluding the vigilance of rigid investigation, are enabled to practise acts of oppression with impunity. The above summary of Executive powers, so opposite in their nature to those principles which form the basis of the Federal Constitution, and which are transfused through the constitution of the several States, is sufficient to show that the people are deprived of all participation in the choice of those who administer the laws, and that public functionaries are rendered independent of the community whose interests are confided to their management and discretion. These restrictions on the rights of the people can be justified only by the most evident necessity, resulting from peculiar and unavoidable circumstances. Your committee, therefore, consider it an act both of strict justice and sound policy to advance the respective territories of the United States to the grade of a separate commonwealth, whenever they shall contain the number of inhabitants necessary to entitle them, under the ratio established by law, to a Representative in the Congress of the United States. On the subject of population, there exists no difficulty, whether the territory be taken in connection with West Florida or with its present limits. From the official returns of the census, taken during the summer of the past year, it appears that there were, in the Mississippi Territory, the number of forty thousand three hundred and fifty-two souls. This enumeration, it is alleged, fell considerably short of the actual population of the Territory at that time; and, without casting the most remote censure on the officers who were employed in that service, such a suggestion is strongly supported by the vast extent of country over which the settlements are dispersed. It also appears to your committee that the progressive emigration from the old States to this section of the Union, added to the length of time which it will require to form a constitution, and put the same in operation, afford satisfactory pledges that, anterior to the final admission of the Territory to the rights of State sovereignty, the number of its inhabitants will amount to at least sixty thousand, whereby they will possess the unqualified right, in conformity with articles of cession and agreement between the United States and Georgia, to be admitted into the Union on an equal footing with the original States. Your committee cannot forbear to express their decided opinion, that, where no constitutional difficulty occurs, the formation of new States on the southern extremity of the United States ought not to be delayed. Under these impressions, your committee submit the following resolution: _Resolved_, That it is expedient to admit all that tract of country, bounded north by a line drawn due east from the river Yazoo, where it unites with the Mississippi, to the river Chatahouchy, and down said river to the thirty-first degree of latitude; thence, along said degree of latitude, to a point opposite the river Perdido; thence to the confluence of said last mentioned river, with the Gulf of Mexico; and thence, in a direct line through the middle of the Lakes Maurepas and Pontchartrain, to the junction of the Iberville with the river Mississippi, and up said river to the above-mentioned river Yazoo, into the Union of the United States, on an equal footing with the original States. WEDNESDAY, December 18. Mr. RHEA presented petitions from Louisiana Territory, in favor of the second grade of Government.--Referred. _Battle on the Wabash._ Mr. ORMSBY moved the following resolution: _Resolved_, That a committee be appointed to inquire whether any, and if any, what provision ought to be made by law for paying the officers and soldiers of the militia who served under Governor Harrison, in the late expedition against the Indians on the Wabash, to compensate them for the loss of horses, and for the relief of the widows and orphans of those who fell in the action of the seventh November last; and that they have leave to report by bill or otherwise. The said resolution was read, and ordered to lie on the table. Mr. MCKEE moved the following resolution: _Resolved_, That the President of the United States be requested to cause to be laid before this House such information as may be in the possession of the Government, and proper to be communicated, on the following points: 1. Any evidence tending to show whether any and what agency the subjects, either public or private, of any foreign power, may have had in exciting the Indians on the Western frontier to hostility against the United States; 2. The evidence of hostility towards the United States, on the part of the Shawanee Prophet and his adherents, anterior to the commencement of the late campaign against them, under the command of Governor Harrison; 3. The orders and authority vested in Governor Harrison by the United States, under which the late expedition against the Indians was carried on; and such other information relating to the subject, as, in the opinion of the President, may be proper to be communicated to this House. The resolution was read, and ordered to lie on the table. THURSDAY, December 19. _Battle of Tippecanoe._ A Message was received from the President of the United States, transmitting two letters received from Governor Harrison, of the Indiana Territory, reporting the particulars of the issue of the expedition under his command on the Wabash. The Message and letters were read, and referred to Mr. MCKEE, Mr. SEVIER, Mr. BRECKENRIDGE, Mr. MORROW, Mr. ALSTON, Mr. LEFEVRE, and Mr. MAXWELL, to consider and report thereon to the House. _Foreign Relations._ The House resumed the consideration of the sixth resolution, reported by the Committee of Foreign Relations, in the following words: "6. That it is expedient to permit our merchant vessels, owned exclusively by resident citizens, to arm, under proper regulations, to be prescribed by law, in self-defence, against all unlawful proceedings towards them on the high seas." Mr. ARCHER.--The sixth resolution of the Committee of Foreign Relations being now on its passage, I must express my sorrow that I am compelled to obtrude my humble observations upon the fatigued patience of the House, and the more exhausted patience of the nation. As I shall vote against the resolution, I feel it to be my indispensable duty to detail to the House the reasons by which my vote shall be actuated. Many honorable members may, perhaps, conceive that it would be more proper for me to reserve my remarks for the bill, when it shall be reported; but, sir, I have ever held it to be my sacred duty to oppose, even in its incipient state, every measure which may be hostile to the rights, or dangerous to the interests of my country, lest, by not seeming to oppose, my conduct should be construed into an encouragement of such a measure. For what purpose, sir, let me ask, have we adopted the resolution preceding this? Was it for the purpose of destroying the Government? Was it that the members of that Army should sheath their swords in the bowels of the liberties of their country? Who will impute to this body so disgraceful a motive? Are you about to raise a standing army, not for the purpose of making preparations for war, but with a view of intimidating Great Britain to recede from her unjust infractions of our neutral rights? Do not think that she will be intimidated by any preparations which you can make, however formidable they may be. She knows, too well, your conduct heretofore, to believe you are in earnest. She knows that, many years ago, you resolved to resist, but that this honorable determination terminated in an empty resolution. She knows, too well, that you have been, heretofore, prodigal in words, and parsimonious in spirited action. I do not set myself up for a prophet; but, mark me, if it be not true, that Great Britain will not do you justice till you carry the war out of this hall into the heart of her colonial territories. Under the firmest conviction, then, as I am, that war between the United States and Great Britain--if we have any respect for our honor as a nation--will be an event of inevitable consequence, I have in vain searched for the reasons which would induce us to authorize our merchant vessels to arm against all unlawful molestations on the high seas. As the resolution is, in its nature, general, every man must see, on the contrary, the dangers necessarily attendant upon the adoption of such a measure. You are now on the very verge of war, and you should, therefore, be careful not to multiply your enemies. You may, by passing this resolution, make France your enemy. You may enlist Denmark and other powers of Europe against you. This is an event which would be deeply deprecated; and, that it should happen, is nothing improbable; for your merchants, armed as they will be, in defence of their commerce, may select the nation who is to be your enemy. If they are molested in their commerce, whether lawful or unlawful, they will be disposed to resist. At any rate, they will be the judges of the juncture when their interests may call for the interposition of force, and will exercise that force according to their own whims and caprices. They sail on the ocean clothed with national authority, and for their actions, whether lawful or unlawful, you will be compelled to answer. Sir, I respect the highly honorable occupation of a merchant, but am not disposed to carry that respect so far as to give my sanction to the adoption of a measure which may jeopardize the peace, and endanger the interests of my country. If this resolution were to authorize an arming against Great Britain alone, this argument would have no effect; but as it has a view to a general arming against all nations, this reasoning is conclusive on my mind, and must operate in the same way upon all men who will give the subject a dispassionate consideration. The consequences of such a measure are plain and obvious. Now, let us examine whether there exists any reason sufficiently powerful to outweigh these considerations. What is the object, and the only one too, as stated by the honorable chairman of the Committee of Foreign Relations, (Mr. PORTER,) for the adoption of this measure? Your vessels will be armed and prepared for privateering the moment war shall be declared. Why, sir, do you think the merchants will believe that you really intend to go to war? And, if they doubt upon this subject, do you suppose they will be so regardless of their own interests as to expend their capital in fitting out privateers, when no absolute certainty exists that war is your object, or your serious intention? It would, certainly, be an object of no inconsiderable moment to have privateers prepared to harass and disturb the commerce of Great Britain in the event of war. If this be your object, you are taking a very improper course to obtain it. If such be your object, take some decided and energetic step which will convince even the incredulous that you will resort to the sword to obtain justice, and your end will soon be effected. But, do not depress the hopes of the nation by sanctioning this tame, imbecile, and temporizing system. What is the spirit that breathes in the five resolutions which have been adopted--resolutions which were in entire accordance with my feelings? Is it not a spirit of war? Do they not bear a hostile aspect? Are they not calculated to induce Great Britain to believe that forbearance on our part has terminated, and that we are resolved, unless she speedily extend to us full and ample justice, to decide the contest by the sword? Have you any thing to hope, by operating upon the minds of the rulers of that nation, a conviction that you are boasting no longer? If you do entertain such a hope, I pray you, do not adopt this measure--a measure which will show her the fluctuation of our opinions, and the repugnancy of our plans; a measure which will lull to sleep her fears of war, and convince her not only of your indecision, but of your timidity to unsheath your sword in defence of rights clear and undisputed, and in avenging injuries too glaring for the dignity and honor of a nation to submit to. Are the wishes of this nation to be unattended to? Ought we not to relieve its anxieties? Or, are we to tantalize their hopes with energy in one law and imbecility in another? Are the merchants to be told we will protect their commerce? By what? By granting them a right which nature has already given to them? Is commerce to be protected by abridging the natural rights of the people? Is this measure no abridgment of their rights? Does it not confine the legality of arming to resident citizens alone? Look at the measure as you please, it is a dead letter. Is this the period of all others to be selected to incorporate unmeaning laws in the body of your statute book? Do not satirize, by such an act, the manly sensibility of the people. Do not paralyze the national arm. No; let us do justice to the nation by the adoption of such measures as will renovate the depressed spirits of our constituents; which will prevent them from falling into that destructive and deadly languor which this resolution is calculated to produce. The question was then taken to concur with the Committee of the whole House on the state of the Union in their agreement to the said sixth resolution, as reported by the Committee on Foreign Relations; and resolved in the affirmative--yeas 97, nays 22. SATURDAY, December 21. _Statutes of Limitation._ Mr. GHOLSON, from the Committee of Claims, who were instructed by a resolution of the House of the 11th ultimo, to inquire into the expediency of repealing or suspending the various acts of limitation, so far as they operate to bar the payment of certain descriptions of claims, made a report thereon.--Referred to the Committee of the Whole on the report of the Committee of Claims on the petition of Rees Nanna and others. The report is as follows: That they have bestowed on the resolution that full consideration to which it was entitled. They felt, on the one hand, sincere solicitude to devise some just and adequate method of satisfying the claims in question; while, on the other, they were forcibly struck with the unavoidable scenes of speculation and fraud which would ensue the repeal or suspension of any of the acts of limitation, whereby those claims are barred. If the old soldier, his widow, or his orphan, were alone to be benefited by such suspension, your committee would not hesitate to recommend it. Past experience, however, hath evidently shown that similar legislative indulgences have enured almost exclusively to the advantage of the unprincipled speculator, and those who avail themselves of the ignorance and subsist upon the misfortunes of others. We have innumerable examples of the truth of this position, in the consequences that resulted not only from the various suspensions of these acts which have hitherto taken place, but more especially from the adoption of the Funding System. It is deemed unnecessary to enlarge upon the consequences; they are too well known. Although a communication received from the Treasury at a former session holds out an opinion that there are in the possession of that Department sufficient checks and guards to protect the United States from imposition and fraud in the payment of a certain part of those claims, the committee are differently impressed. They have seen a transcript from the books of the Treasury, published to the world, exhibiting the names of a certain class of claimants; and to suppose that a facility of this kind, thus offered to speculative artifice and management, would not be seized upon and used by the speculator to impose upon Government, is to suppose a thing contrary to all experience. The committee feel themselves by no means able to draw a line of distinction between a just claim liquidated and a just one unliquidated; and to attempt the invidious task of distinction in point of merit, where there can be no difference, and to open the statutes of limitation in order to relieve a part or a few favorite classes of claims, does not comport, in the view of your committee, with any principle of fairness, or with that equal system of distributive justice which ought to be dispensed toward all. When they take a retrospective view of the subject, and find that most of those statutes were first passed in the times and under the patriot counsels of the old Congress, and that the more general one which took effect in 1794 was passed under the Administration of General Washington, who was himself the chief of soldiers as he was the chief of their patrons and friends in every station; but he was equally the friend of his country, and gave that act the sanction of his name, as founded, at least, in a policy of general justice and right, which the Government had been at length obliged to resort to and maintain in self-defence; that every Congress since has invariably adhered to the general policy of those laws; and, after the lapse of so many years, when the difficulty of doing justice has increased with the increase of time, and when a partial repeal would but tend to increase the discontent and dissatisfaction of every class of claimants which should remain unprovided for, the committee cannot, from any view they have been able to take of the subject, recommend the repeal or suspension of any of those statutes. They would, therefore, beg leave to submit the following resolution: _Resolved_, That it is not expedient to repeal or suspend any of the acts of limitation, whereby the aforesaid descriptions of claims are barred.[20] The report was ordered to lie on the table. MONDAY, December 23. _Rules and Orders--Previous Question._ The House resumed the consideration of the unfinished business of Saturday. The amendment proposed by Mr. NELSON being again read, as follows: "That when the previous question is ordered to be taken, upon the main question being put, every member, who has not already spoken, shall have liberty to speak once:" Mr. GOLD said the amendment now offered to the rules of the House, secures to every member the right of speaking at least once on every question before the House. The liberty of speech, and freedom of debate, are sacred by the constitution; and to refuse _all_ debate, to deny us the privilege of speaking _at all_, on the most important questions of peace and war, is a subversion of the first principles of the constitution. And what is to justify this measure of imposing silence? It is said, the right of debate has been abused. Let gentlemen beware how, for an occasional _abuse of a right_, they _take away--destroy the right itself_. What right, in the whole charter of our rights, has not at some time been abused? Man is frail, and why should not, at times of public agitation and concussion of parties, abuses arise? debate become angry and be prolonged? And for this, is the principle to be adopted, that the right shall be forever suppressed and destroyed?--the principle that absolute silence shall be imposed on a minority? Sir, Philip, the tyrant of Macedon, disliked the freedom of speech and debate in Athens: it annoyed him; for this cause, Demosthenes was pursued to the altar, where he expired. The principle contended for by the majority (supposed abuse) will be found to justify the most odious usurpations recorded in history; liberty is abused, and chains are forged to restrain it. Gentlemen of the majority insist, that the rule will not be abused; that the majority will not execute the rule arbitrarily. The amendment, now offered to the rules, stipulates only for liberty to each member to speak once. Now, sir, if this be denied, and the rule is ever executed, the abuse is inevitable, it is necessarily involved in the very execution of the rule. Neither the journals of our State Legislatures nor the laws of the Parliament of Great Britain afford examples for thus arbitrarily proceeding. Debate is admitted in the British Parliament on the previous question; our rules exclude it on both the previous and main question. Beside, sir, I need only refer gentlemen to the manual of parliamentary law, from the hand of the third President of the United States, to show that the previous question was confined to subjects of delicacy, which a due regard to the interests of the State or its Government forbade to be agitated. How much, sir, has this question been perverted from its proper province, to silence all debate and force the question, the passage of the law! Such measures are dangerous to freedom, and afford, in evil times, the most fatal examples. Mr. SMILIE said he was a friend to freedom of debate, but that there was a difference between this, and that abuse of it when you cannot get a decision without an exertion of physical strength. This has been our case several times. The rule now proposed to be altered is the old rule, and is only restored. We very well know, that a debate has been often prolonged merely to prevent a decision. We have been kept till ten and twelve o'clock at night, and sometimes till daylight. It is an inconvenience which he at his time of life had seriously felt. There can be no evil from the rule as now established. The responsibility of the majority is such to the people, that, if they should abuse it, as the minority have their privilege, the people will correct it, when the minority shall fairly state it to them. He said the majority were also responsible to the people to transact the public business. Mr. STANFORD, in reply to Mr. SMILIE, said he did not think it proper to give this dispensing power to the majority, if they by the constitution did not possess it, as he contended they did not. He said we have heard of a _sedition law_, and _the reign of terror_. The bill, when first introduced for that law, went to prevent freedom of speech. This rule, in his opinion, much more deserved the character of a "_Gag-law_," than the Sedition law did. Mr. WRIGHT mentioned the great abuses of this privilege of the minority the last winter. He said, if we don't establish a written, decent rule, we must have a common law rule, such as they have in the British House of Commons, to shuffle and put down, when the abuse of this privilege becomes enormous. Mr. QUINCY.--Mr. Speaker, I do not regard this question in the light in which some of its advocates, as well as its opponents, have considered it; as a mere contest for power between the majority and the minority. It is of a higher character. It affects the essential principles of civil liberty, and saps its hopes at its very foundation. I rejoice that the gentleman from Virginia (Mr. NELSON) has limited his proposition, so as to preclude any mistake concerning the object of it. We are not now advocating an unrestrained privilege of debate. The inquiry is, shall a main question ever be taken in this deliberative body, until every member, who has not already spoken, shall have had an opportunity, if he wishes to avail himself of it, to speak at least _once upon the question_? The ground taken by those who oppose the proposition, is that of necessity and convenience. These are the very points, which, in a free country, ought most vigilantly to be guarded. For it is here that the spirit of despotism always lies in ambush. Under the cover of necessity, or convenience, it steals upon the liberties of a people, and never fails, sooner or later, to make them its prey. It is not to be denied, that the subject is in some respects difficult to manage, with any hope of convincing. There is a state of feeling, both within this House and out of it, very unpropitious to an impartial debate. In this House it is argued as a question concerning who shall have the power, a majority, or a minority. And as it is agreed, on all hands, that, in the exercise of the power, abuse may happen, the present majority, like all other majorities, have a prevailing inclination to reserve, in their own hands, the exclusive privilege of abuse. And without doors, the subject is of less difficulty. For, of late years, the popular ear has been so vexed with speech upon speech, wind upon wind, the public patience has been so exhausted, in hunting up the solitary grain of sense, hidden in the bushels of chaff, that it is ready to submit to any limitation of a privilege, which subjects it to so irksome a labor. The people are almost ready to exclaim, "do what you will with the liberty of speech, provided you will save us from that _fresh_ of words, with which we are periodically inundated." Now, this is the very state of the public mind in which the corruption of essential principles commences. Through apparent necessity, or temporary convenience, or disgust at abuse, the popular sentiment is made to acquiesce in the introduction of doctrines vitally inconsistent with the perpetuity of liberty. I ask the House to consider what is that principle of civil liberty, which is amalgamated and identified with the very existence of a legislative body. In what does it consist? And what is its character? It consists in the right of deliberation. And its character is, that it belongs not to the body, but the individual members constituting the body. The body has the power to control and to regulate its exercise. But it has not the power to take away that right altogether, by the operation of any general principle. An individual member may render himself unworthy of the privilege. He may be set down; he may be denied the right, because he has abused it. But whenever a legislative body assumes to itself the power of stopping, at its will, all debate, at any stage of deliberation, it assumes a power wholly inconsistent with the essential right of deliberation, and totally destructive of that principle of civil liberty which exists, and is identified with the exercise of that right. The right of every individual member is, in fact, the right of his constituents. He is but their Representative. It is in their majesty, that he appears. It is their right that he reflects. The right of being heard by their Representative is the _inherent_ and _absolute_ right of the people. Now, it is in the essential character of such a right, that it exists, independent, and in despite of any man, or body of men, whatsoever. It is absurd to say, that any right is independent, which depends upon the will of another. It is absurd to say, that any right is absolute, which is wholly relative to the inclination of another; which lasts only as long as he chooses, and terminates at his nod. Now, whether this power be exercised by one, or many, it matters not. The principle of civil liberty is gone, when the inherent and absolute nature of the right is gone. Apply this reasoning to the case before us. It is impossible to conceal the fact, that as our rules and orders stand, independent of the proposition now offered as an amendment, it is in the power of a majority to preclude all debate, upon any question, and force every member of the House to vote, upon any proposition, without giving him the opportunity of explaining his own reasons, or stating the interests of his constituents. This is undeniable. Is it not, then, plain and conclusive, that, as our rules and orders now stand, according to recent construction, every member of this House holds his right of speaking, not on the principle of his constituents, whose Representative he is, but upon the will of the majority of this House? For that which another may at any time take away from me, I hold not by my own right, but at his will. Can any thing be more obviously at variance with the spirit of the constitution and the first principles of civil liberty? Let not any man say this power will not be abused. In the nature of things it must be abused. This is the favorite argument of every despotism, and, of course, will not fail to be urged when it is about to plant itself in the very temple of liberty. I have chosen to consider this subject in relation to the right of the whole body, and of one of its individual members, rather than to that of a majority and minority. The right to speak is an individual right. Limit it as you please, consistent with a single exercise of that right. But when this is taken away, or, which is precisely the same thing so far as it respects the principle of civil liberty, when it is in the power of one or many, at its sovereign will and pleasure, to take it away, there is no longer any right. We have our tenure of speech as the slave has his--at the will of a master. But it is said that the Legislature must sometimes "act," and that individuals, by an abuse of this liberty of speech, prevent the whole body from "acting." All I say is, limit the exercise of the right as you please, only do not assume to yourselves the power of taking away the whole right, at your pleasure. It is in this doctrine, of "the necessity of acting," that lies the whole mystery of that error which we are now combating. Strictly speaking, a Legislative body never "acts." Its province is to deliberate and decide. "Action" is, alone, correctly attributable to the Executive. And it will be found, that all the cases in which this necessity of "action" has been urged, have been cases in which the Legislative body has departed from its appropriate duties of deliberation and decision, and descended to be an instrument, or engine, of the Executive. I hesitate not to say, that this position may be proved by almost every instance in which this necessity of action has been urged. It was an Executive haste to its own purposes, which prevailed upon the Legislative body to deny, to its own members, their privileges. It has been asserted, that "if this amendment passes, this will be the only deliberative body in the world which cannot stop debate." On the other hand I assert, that if this amendment does not pass, this will be the only deliberative body in the world, pretending to be free, in which it is in the power of a majority to force a decision, without any deliberation. It is not true that, in the British Parliament, the previous question stops debate and forces decision on the main question without deliberation. The previous question there, if decided in the negative, suppresses debate, by postponing the main question. And until 1807, the practice and rules of this House permitted debate of the main question, after an affirmative decision of a previous question. Whoever undertakes to examine the subject will find it as I have stated. It is not true, that this power ever was, or ever can be _necessary_, in a Legislative body. In every case in which the previous question, according to recent construction, has been pressed upon the House, it will be found that there was no _National or State necessity_ for an immediate decision. That is to say, in every instance it will be found, that it was of no sort of public importance whether the main question were taken on this day, on the next, or on a third day. Always the question might have been taken in a reasonable time; and every individual member, who chose to speak, might have had the privilege, if he pleased, of speaking, at least once. As far as I observed, all these pretences of necessity have been easily resolvable into party cunning. The subject was one difficult to maintain. It had popular bearings, which it suited not the pleasure of the majority to have investigated. They pressed the minority to instant decision, by refusing adjournment. And as it happens in all such cases, reaction is equal to action. The minority were put upon their mettle, and they put to trial the mettle of the majority. It is undoubtedly true, that this power may be sometimes convenient. And this is the whole strength of the argument of those who oppose this proposition. The weak and aged members of the majority have been kept all night from their slumbers, by a hale and sturdy minority; which slumbers they might, by the way, at any moment have enjoyed, if that very majority had yielded the point of adjournment. And is this reason of convenience sufficient, in the estimation of this House, to justify it, in depriving this people, in the person of their Representatives, of the essential right of speaking upon this floor? Is this a justification for such an atrocious and exorbitant grasp at power? Our patriotism, nowadays, can submit to no sacrifices. We are not content with sleeping, if we please, every day in our seats, unless we can sleep also every night of the session in our feather beds. And these feather-bed patriots, as I understand, are all agog for a march into Canada; and, if we believe them, are desirous of nothing so much as showing how those can meet privation and watchfulness in the field, who think of nothing but comfort and sleep upon this floor. I know there is another argument urged in favor of the assumption of this power by the majority, and that is, the haste and clatter which always attend the end of a session. Let our session be long or short, the event is, in this respect, always nearly the same. What with speeches and postponements, and laying down one piece of business half finished, and taking up another, the latter end of a session is a political chaos. The work of this and the other House, and that of the Palace into the bargain, is in fact sometimes to be washed up, in a night--and the members of all branches are knee-deep and shoulder-deep in the suds. Now, this shows the necessity, not of this unlimited power of the previous question, but of conducting public business with more prospective intelligence. The House is just like all other spendthrifts. It first wastes what is its own, and then seeks how it may make up its deficiency out of the property of other people. We pillage the public liberty, in order to compensate for legislative negligence. I have often been puzzled to imagine a necessity, which could even apologize for such an assumption of power as the majority, by this new construction of the previous question, are attempting; and, until lately, I did not believe that it could possibly exist. The only case, in which there seemed to me to be an apology for resorting to it, was, the other day, when the gentleman from Georgia (Mr. TROUP) threatened to call the previous question upon the majority themselves. I admired both his manner and the occasion on which he introduced that idea. And really there was something like a necessity. If I understood the view of that honorable gentleman, it was, that he thought there was not fighting matter to spare in the stomachs of the majority; and he threatened them with the previous question, lest, peradventure, the whole war spirit should ooze away through the mouth. In this there was both discretion and patriotism. Mr. BRIGHAM said, that although he was forward in life, he was but of yesterday of this House, and that the rules and orders were not familiar with him. But he exceedingly regretted that this House, in their wisdom, ever found it expedient or proper to adopt a rule to deprive a minority, or an individual member of this House, of the freedom of debate, the freedom of speech, a privilege so much boasted of in this land of liberty. He observed that he had his rights in common with the other members of the House, and that he had his duties to perform. He was not ambitious to become a public speaker, nor would he say that he supposed he could speak to the edification or satisfaction of the House. But should he, on great questions, be denied the privilege of speaking? Suppose the question of peace or war should assume the aspect of solemnity, and it should become necessary and important that this House be made acquainted with the circumstances and disposition of the citizens of the several sections of the country--and suppose a member who is not much accustomed to speaking, silently sits until those gentlemen who are in the habit, and are fond of speaking, shall have exhausted themselves in debate--shall he, in that case, be denied the right of speaking--shall he be deprived of his constitutional privileges and his constituents of the right of representation on the floor of this House? He said that he was bound by the oath of God to support the constitution, and to promote the welfare of his country; but, if his mouth is stopped, how can he execute his trust or perform his vows? For this House by a rule to interdict the freedom of speech, is an assumption of power, and a violation of right. He hoped, that the rule under consideration would be modified, and that the proposed amendment would be adopted. He wished that each individual member might be permitted to exercise his right of speaking to any question before the House, at least once, if he chooses. Mr. NELSON spoke in favor of the amendment. He said he had no hesitation in declaring, that whenever right and expediency shall come in competition, that he should prefer right. He remarked, that the constitution secured the freedom of speech to the citizen. And are we, he asked, to be deprived of it when we come to this House--when we enter this temple of liberty? The attempt is not to suspend merely, but to destroy this right, and because we have experienced some inconvenience from this exercise. He agreed with the gentleman from Massachusetts, (Mr. QUINCY,) that if the House would do their duty, and get the business along in the early part of the session, we should never be in the dilemma the House were in, the last session of Congress; and that an inconvenience was a very poor reason for destroying this right of offering our sentiments. He would rather recommend the turning out of doors a member who should become troublesome in speaking too long, than to suffer him to stay in the House and prevent his uttering his sentiments. Even expulsion would not be a greater infringement of his right. The right of the people is the right of their Representatives to speak, deliberate, and decide. As to the plea of necessity, he protested against it as the plea of tyrants. Mr. ALSTON, of North Carolina, expressed his astonishment, that the gentleman from Virginia (Mr. NELSON) had assumed the ground he had. He said, there were two parties in this House; and asked, is it ever known how a question will be decided, until it is taken? Mr. BASSETT said, if a stranger was present, and should hear this debate, he would suppose that the question was now for the first time brought forward for the establishment of the rule, against which so much had been said, when it is well known that it has always been the practice. Mr. PITKIN said, the amendment now under consideration was proposed in consequence of a decision of the House, at the close of the last session, that when the previous question was decided in the affirmative, there could be no debate on the main question; the amendment, if adopted, allows a member, who has not previously spoken, to speak at least once on the main question, before he is called upon to give his vote upon it. The principle adopted by the majority, during the last days of the last session, and now supported in the House, is this, that a majority, who may happen to be present, at any time, have it in their power, by means of a previous question, as it is called, to prevent all debate on every question before the House, however important it may be; to seal up the lips of every member, and compel him to vote upon the question without an opportunity of expressing his sentiments upon it, or explaining the reasons of his vote. This, Mr. Speaker, is a principle to which I never _have_, and to which I never _will_ give my assent. What, sir, let me ask, and where is the rule under which the majority claim to exercise this enormous power--the power of imposing silence upon any member, on this floor? The rule, under which this power is claimed, is in the following words: "The _previous question_ shall be in this form: Shall the main question be now put?" It shall only be admitted when demanded by five members; and, until it is decided, shall preclude all amendment and further debate of the main question, and that "on a previous question there shall be no debate." By a new construction, which a majority of the House thought proper to give to this rule, at the close of the last session, all debate may be prohibited on any question; for five members alone can demand the previous question, and then, of course, all debate must cease, until a decision be had on that question, and if the previous question be decided in the affirmative, by this new construction of the rule, there can be no debate or amendment of the main question. Thus, sir, unless the amendment now proposed be adopted, if a proposition for a declaration of war against Great Britain, or any other nation, should be laid upon your table to-morrow, it will be in the power of a majority of the House, and that majority may consist of less than forty members, to impose silence upon every member of this House; and we must be compelled to vote on a proposition so interesting to the prosperity, happiness, and perhaps the final destiny of this country, without the poor privilege (if we might choose so to do) of raising our voices against it. But, sir, the opponents of the amendment say, that the construction given to the rule the last session, was in conformity with the universal practice of the House, from the establishment of the Government, except in two or three instances. I deny, sir, that this has been the practice, and I believe I may venture to assert, without fear of contradiction, that no such power has ever been exercised over the members of this House, since its organization, until the last session. I have, sir, examined the journals, with some attention, and have not been able to find a solitary instance of the kind. On the contrary, many cases are to be found when the previous question has been decided in the affirmative, and that, immediately after the main question has not only been _amended_ but has been _debated_. And here, sir, permit me to observe, that the rule itself, with respect to the previous question, was adopted the first session of the First Congress, and has ever since remained precisely in the same form; and no construction was ever given to it, so as to prevent debate on the main question, until the last session. Permit me to refer the House to the Journal of the first session of the Third Congress, for the proof of what I have stated. During this session, the difficulties then subsisting between this country and Great Britain, became the subject of discussion, and a proposition for prohibiting all intercourse with Great Britain, in case justice was not done us, was then submitted to the House, and the previous question was called upon it, and decided in the affirmative, after which the subject was not only postponed, but, as appears by the Journal, was both _amended_ and _debated_. It appears also from the Journal in 1795, that a proposition was amended after an affirmative decision of the previous question. In the year 1798, when a resolution was before the House for publishing the instructions to, and the despatches from our Ministers to the French Republic, the previous question was moved and determined in the affirmative; and it appears by the Journal that immediately after such decision, on the same day, debate was had on the main question. But, sir, to come to our own times: on the 15th of December, 1807, a construction was given to the rule, after mature deliberation, by a large majority of the House, that the main question might be debated, after an affirmative decision of the previous question. This was done on an appeal from the decision of the Speaker, "that after the previous question is called for and determined in the affirmative, it precludes all debate on the main question." The House reversed the decision of the Chair by 103 to 14. A similar decision took place on the 2d of December, 1803, in the House--101 to 18. And, sir, I have been unable to find a single decision of the House to the contrary, from the first organization of the Government until the close of the last session. Indeed, sir, the words of the rule itself, show that the construction, which had so long prevailed, was the only true construction which could be given to it. The words are, and until it (viz: the previous question) is decided, "shall preclude all amendment and further debate on the main question." By which it is evident, that amendment and debate of the main question is only _precluded_, until the previous question is decided, but that after such decision, it was not precluded. The gentleman from New York, (Mr. GOLD,) and the gentleman from Virginia, (Mr. NELSON,) have truly stated that the previous question was taken from the rules of the British Parliament, and they have likewise stated the reason of its introduction into that body. It was, sir, to prevent debate in the House of Commons upon questions of a _delicate nature_ with respect to high personages, &c. Yes, sir, it was introduced there to enable the Ministry to prevent the _Commons_ from opening their lips on subjects relating to the Royal Family and the great men of the realm. But, sir, we have gone further than the Ministry and their majorities, despotic and tyrannical as they have been, have ever dared to go in Parliament. For even there members are now, and always have been, permitted to debate on the previous question; but which members on this floor are not now permitted to do. Mr. Speaker, the nature of our Government forbids that the majority should have the power to prohibit all debate on questions which may come before this House. We have not, as yet, I trust, any high personages in this country about whom it would be indelicate or improper for the members on this floor to speak; and let me ask what subject of national importance can be proposed for adoption, on which a member should be deprived of the privilege of speaking at least once before he gives his vote? Nay, sir, let me ask gentlemen whether this House has a right to compel me, or any other member, to vote on any question, without giving me an opportunity of explaining my reason for that vote. I deny, sir, that they have this right; as a member of this body, I claim the privilege of delivering my sentiments, or what I may consider the sentiments of my constituents, on any subject, before I give my vote upon it. I claim it not, sir, for myself personally, but I claim it in the capacity of a Representative of a free people, sent here, not like a member of the French Council of Five Hundred, for the purpose of voting merely, but for the purpose of deliberating on subjects of high concern to their peace, their prosperity, their happiness. For what, sir, are we assembled here under a constitution the purest in the world? Is it not for the purpose of promoting "the general welfare" of the nation which we represent? And how is this to be done, except by a free communication of our sentiments to each other, on the various plans which may be proposed for that object? The peace, the honor, and interest of this country is confided to our care, and while we are here deliberating on the best means of preserving the one or securing and promoting the other, the constitution has very wisely thrown around us a shield of complete indemnity--"for any speech or debate in this House," we are "not to be questioned in any other place." Will then the majority claim the right of depriving a member of this privilege of speech, a privilege not only thus secured to him by the constitution itself, but for the due exercise of which he is not to be questioned elsewhere? But, sir, those who oppose the amendment say that the construction is founded in necessity; that individual members have abused the privilege of speech; that they have heretofore, and probably will again, make long speeches merely for the purpose of delay, and of embarrassing the proceedings of the House; and that therefore the majority must have it in their power to stop debate, whenever they think proper, and that this power will always be exercised with a sound discretion. I deny, sir, that any such necessity exists; it is a plea easily made, but generally difficult and in this case impossible to be supported. Why has it so happened that this necessity has never existed until the last session of Congress? Was it then for the first time, that a division of sentiment appeared on this floor? were parties never before heard of in this country? Were not parties arrayed against each other in 1796 on the subject of the British Treaty, and in 1798-'9, on the question of a war with France? Were not the disputes in this House, in those times, as long and as bitter as they have ever been since? Those were times, which have been so often quoted in this House as hard, and unconstitutional; times when the reign of terror prevailed, when corrupt majorities, as has been often said on this floor, passed alien and sedition laws. And, yet, sir, with all the political sins which have been heaped upon those majorities, the sin of having taken away the privilege of speech on this floor never has been, and as I have proved from the journals, never can be laid to their charge. This House, by the constitution, has the power to "determine the rules of its proceedings;" and in making those rules, it has the right of regulating, but not of entirely preventing debate. It would indeed be a strange anomaly in politics, as well as in law, that under a general power of making rules of proceeding, we should make a rule to prevent all proceedings whatever. Gentlemen may as well assume the power of preventing a member from voting, as they now do that of preventing him from speaking. I am willing to agree, sir, that the privilege of debate, on this floor, may have been and will again be abused; that on particular subjects individual members have spoken much longer than was necessary, and I may add, also, with much less sense than a majority might have wished; and in some instances they may have prolonged their speeches, merely for the purposes of delay. But, sir, will you deprive a member of the right of speaking at all, because he is unable to convey his ideas in few words, or because he may have very few or no ideas to convey? Or because some may have spoken merely to delay the proceedings of the House, will you make a general rule, by which a member may be wholly deprived of the right of speaking? If indeed, sir, evils do arise in consequence of the liberty of speech in this house, if the business of the nation does not progress with as much rapidity as in countries under the control of an individual; they are evils which flow from the very nature of our Government, from that freedom which we so highly prize, and from that very constitution which we have sworn to support. So long as we are men we shall be imperfect, we shall bring with us on this floor different views, different ideas on political as well as on other subjects; and it would be strange indeed if, on the various topics of national importance brought before us for discussion, we should not at times come into strong collision with each other. The question on the amendment was determined in the negative--yeas 36, nays 76. Mr. STANFORD moved to amend the rules by adding to the end of the paragraph relating to priority of business, the words "but no question of consideration shall be required upon an original motion;" which was also determined in the negative--yeas 30, nays 68. On motion of Mr. WILLIAMS the said rules were amended by striking out the word "five," in the paragraph prescribing the manner in which the previous question shall be taken, and inserting the words "one-fifth of the." The question was then taken to concur in the said rules as amended, and determined in the affirmative.[21] FRIDAY, December 27. Mr. NELSON presented a petition of sundry inhabitants of the Territory of Louisiana, praying that the second grade of Territorial government may be extended to the inhabitants of said Territory. MONDAY, December 30. _Burning of the Richmond Theatre._ Soon after the Journal was read, Mr. DAWSON rose and addressed the chair. The lowness of his voice, owing to recent indisposition prevented his being heard distinctly; but his observations were nearly as follows: Mr. Speaker--Virginia, my parent State, has long to mourn the loss of some of her most valuable sons and estimable daughters, who on the night of the 26th of the present month, met their untimely end.[22] Among those who perished in the flames, in the metropolis of that State, on that sad night, were the Chief Magistrate of the State, and a gentleman[23] well known to many of us, and who, for years, held an honorable station in this House. Some of the most valuable and prominent characters in their professions, and others who promised ere long to be ornaments to their country. With these, sir, was the rising offspring[24] of one of our present most valuable members, and many other amiable and virtuous women who adorned and improved society. These, sir, with many others, have fallen victims to that unrelenting element, notwithstanding the bold and generous efforts which were made to save them. Their ashes are now mingled with the dust, and their spirits have ascended to Heaven. It is to us a great national calamity. I well know, that on such occasions grief, although keen, is unavailing--that the decrees of fate are irrevocable and ought to be submitted to with humility. In order, however, to testify the respect and sorrow which this nation feels for the deceased, and to prove that we sympathize with the afflicted, without further comment on this painful subject, I beg leave to offer the following resolution: _Resolved_, That the members of this House will wear crape on the left arm for one month, in testimony of the respect and sorrow which they feel for those unfortunate persons who perished in the fire in the city of Richmond, in Virginia, on the night of the 26th of the present month. This resolution was unanimously adopted. TUESDAY, January 7, 1812. _Statute of Limitations._ On motion of Mr. GHOLSON, the House resolved itself into a committee, on a report of the Committee of Claims on the subject of excepting certain claims from the act of limitations. The report of the committee being read, which concluded with a resolve that it is inexpedient to open the act of limitations for the claims in question: Mr. GHOLSON hoped the committee would not agree to this report. Information had been received from the Treasury Department, stating in a distinct and unequivocal manner, that all this description of claims (which were all liquidated claims, such as indents of interest, certificates, &c.,) might be allowed by the Government, without danger of fraud or imposition; and, said Mr. G., if justice can be extended to this description of claimants, without danger, why should it be deferred? Only one solitary reason had been offered--that the persons really entitled to these claims upon Government might not get the money. He hoped this would not be sufficient to prevent Congress from doing what was just on the occasion. Mr. CLAY (the Speaker) hoped the committee would disagree to this resolution. It appears that the officers of the Treasury are of opinion that provision may be made for this description of claims without that danger of fraud, which might possibly arise from a total repeal of the statute of limitations; that their whole amount does not exceed $300,000, and the probability is, that one-fifth will never be applied for, should they be authorized to be paid. What, said Mr. C, is this statute of limitations, which, whenever mentioned in this House, seems to make everybody tremble? It is a general rule prescribed by the Government for the direction of its accounting officers in order to exclude unjust claims. What are statutes of limitation as applicable to individual cases? A rule under which individuals claim protection whenever they choose to do so, and when, from the lapse of time, or loss of evidence, they would be injured, were they not to take this advantage. But in these statutes of limitation there are always exceptions in favor of cases of disability, infancy, coverture, insanity, absence beyond sea, &c. But what is the course which an individual would take who found himself protected by a statute of limitation? He would examine the justice of the claim brought against him; if the claim were just, if he had been deprived of no evidence by the delay, if as able to pay it as if it had been presented at an earlier day, he will not hesitate to discharge the claim, and scorn to take advantage of the statute. And, said Mr. O., shall the Government be less willing to discharge its just debts than an honest individual? Shall we turn a deaf ear to the claims of individuals upon Government because of this statute? He trusted not. The Committee of Claims ought to examine the merit of every claim which comes before it, and if it be just, decide in its favor. But what, said Mr. C, has been the history of claims for four or five years past? When a solitary claim was presented the House would say, we cannot legislate upon individual cases. They occupy too much of our time. The claim is put aside. The same individual some time after, appears in company with others. We then say there are too many of these claims--their amount is too large, and the Treasury too poor--that there are a great many other claims equally well founded--that justice cannot be done to them all. Sometimes there is a division between the two Houses. This House passes a bill in favor of some particular claim--the other tells you they will not legislate for particular cases; that if they act, they wish to take up the subject generally. Mr. C. said it was his wish, both in his public and private character, as far as possible, to do justice; he therefore hoped the course proposed by the Chairman of the Committee of Claims would be agreed to. The resolution recommended by the report was negatived, 54 to 31: and a resolution offered by Mr. GOLD, recommending a provision by law for these claims, after some objections from Mr. ALSTON, was agreed to, 39 to 36. WEDNESDAY, January 8. _Battle of Tippecanoe._ Mr. MCKEE, from the Committee on Indian Affairs, to whom was referred the Message of the President, transmitting two letters from Governor Harrison, reporting the particulars and issue of the expedition under his command against the hostile Indians on the Wabash River, and the memorials of the Legislature of the Indiana Territory, and the officers and soldiers who served in the said expedition, presented the twenty-fourth ultimo, made a report thereon; which was read and committed to a Committee of the Whole to-morrow. The report is as follows: The committee to whom was referred the Message of the President of the United States, transmitting two letters from Governor Harrison, of the Indiana Territory, reporting the particulars and the issue of the expedition under his command against the hostile Indians on the Wabash, and to whom was also referred the memorial of the General Assembly of the Indiana Territory, and the memorial of the officers and soldiers of the militia of Knox county, in the Indiana Territory, who served in the late campaign under the command of Governor Harrison, report: That they have had the several matters to them referred under their consideration, and have given to them that attention which their importance seems to merit. It appears to the committee, that the troops under the command of Governor Harrison may very properly be termed _raw troops_: very few of the officers, and almost none of the men, had ever been in actual service; and a considerable portion of them had been only a few weeks withdrawn from the pursuits of civil life. The attack made on this quickly-assembled army by the hostile Indians on the Wabash, when viewed, either as it relates to the nature of the enemy, the time, or the violence with which the attack was made, cannot but be considered of such a character as would have severely tested the collected firmness of the most able and experienced troops. This attack, violent and unexpected as it seems to have been, was repelled by the troops under the command of Governor Harrison, with a gallantry and good conduct worthy of future imitation. The whole transaction, in the opinion of the committee, presents to the American people a new proof that the dauntless spirit of our ancestors, by whom the war of the Revolution was so ably and successfully maintained, has not been diminished by more than thirty years of almost uninterrupted peace, but that it has been handed down, unimpaired, to their posterity. In estimating the claims of the army on the Government of the United States, it is worthy of remark, that the nature of the country, as well as of the enemy to be encountered, subjected the army to many extreme hardships, and equal dangers, where every thing was hazarded, and but little could be gained, except the regard of their country. The volunteers and militia (to whose claims the memorials referred to the committee particularly relate) were in actual service but a short time, for which alone they are entitled to pay by law; the compensation, therefore, to which they are entitled, is not at all commensurate to the services rendered, and the dangers incurred. Besides, many of the officers and men who fell, or were wounded, in the battle of the 7th November, 1811, were purchasers of the public lands, for which they were indebted to the United States; which debt falls due in a short time, and the penalty of forfeiture will be incurred if the debt is not paid. It would be unjust to inflict a penalty so severe on the disconsolate widows and orphans of those officers and soldiers of the volunteers and militia, who, in common with their brother officers and soldiers of the regular troops, fell in their country's cause, in a manner so distinguished, that nothing was wanting but a great occasion, interesting to the feelings of the American people, to have crowned their names with unfading laurels. As an evidence, therefore, of the regard due to the bravery and ability displayed by the troops under the command of Governor Harrison, in the battle of the 7th November, 1811, as well as to relieve the representatives of those who were killed in the action, from the pecuniary losses incurred in consequence thereof, the committee respectfully submit the following resolutions: 1. _Resolved_, That one month's pay ought to be allowed, in addition to the common allowance, to the officers, (according to the rank which they held,) the non-commissioned officers and privates of the regulars, volunteers, and militia, and to the legal representatives of those who were killed or have since died of their wounds, composing the army under the command of Gov. Harrison, in the late campaign on the Wabash. 2. _Resolved_, That five years' half-pay ought to be allowed to the legal representatives of the officers, (according to the rank which they held,) the non-commissioned officers, and privates, of the volunteers and militia who were killed in the battle of the 7th November, 1811, or who have since died of their wounds. 3. _Resolved_, That provision ought to be made by law to place on the pension list the officers, (according to the rank which they held,) the non-commissioned officers, and soldiers, of the volunteers and militia who served in the late campaign on the Wabash, under the command of Governor Harrison, and who have been wounded or disabled in the said campaign. 4. _Resolved_, That provision ought to be made by law to pay for the horses and other property of individuals lost in, or in consequence of, the said battle. 5. _Resolved_, That the further time of ---- years ought to be allowed to the officers and soldiers who were wounded, and to the legal representatives of those who were killed, in the said battle, to complete the payments due or which may fall due to the United States on any purchases of the public lands made by them before the said battle. THURSDAY, January 9. _Ursuline Nuns at New Orleans._ The petition which the Speaker laid before the House yesterday, from the Ursuline nuns at New Orleans, was enclosed to him and recommended by Governor Claiborne. It prayed for an exchange of the military hospital for some lots which they hold in that city better calculated for a hospital. After the petition was read, Mr. DAWSON observed that he had received a letter from Governor Claiborne relative to that petition, and in confirmation of the facts therein stated. This community of nuns is a most respectable and useful member of society, the whole of their temporal cares being directed to the education of female youth. They are that community which some years ago presented a most elegant address to the then President of the United States, and received from him an equally elegant answer. I am well assured that the lots which they wish to exchange are more valuable, and better suited for the erection of a hospital than those on which the hospital now stands. I therefore move that the petition and accompanying papers be referred to a select committee, who will no doubt converse with the Secretary of War on the subject. This was agreed to, and Mr. DAWSON, Mr. LOWNDES, and Mr. MACON, were appointed the committee. FRIDAY, January 17. _Quartermaster's Department._ The bill from the Senate "for the establishment of a Quartermaster's Department" came up on its third reading. Mr. ALSTON said, if the House would pay attention to the duty of the Purveyor of Public Supplies, and examine the powers given to the Quartermaster General in this bill, it would appear evident that there was no necessity for both offices, and it certainly was not the wish of the House to erect two great departments to perform the same duties. He could perceive no way in which one officer was to be a check upon the other. He liked the bill as it came from the Senate better than as amended, as he saw no necessity for retaining the office of Purveyor. Mr. TALLMADGE observed, that the great object of this bill, and the only one which made it necessary, was to provide for a Quartermaster General's Department, instead of military agents, as employed at present. There never was such an officer in the staff department in the Revolutionary war. The late Secretary of War, as well as the present, were in favor of this change. The military agents, without much responsibility, had nearly controlled the whole War Department. An attempt was made two years ago to effect this change, but it then failed. The office of Purveyor of Public Supplies was instituted long before that of Military Agent. The duties of the Quartermaster General and Purveyor are very different. The former is a highly respectable and confidential officer; he is next in consequence to the Commander-in-chief, with whom he has frequent communication. Every movement of the Army is first communicated to him. He ought to be a military character. It is his duty to receive and deliver out the necessary supplies for the Army, and to attend to its movements. The duties of the Purveyor is to purchase, under the direction of the Secretary of the Treasury, arms, clothing, hospital stores, and every other article necessary for the Army. So that there is not the least similarity between the two officers; one being the purchasing, the other the distributing officer. If the office of Purveyor were to be done away, the Quartermaster General would have to employ a deputy or agent to make these purchases, which would be putting too much in the power of a subordinate officer, and would do away that check which will exist if the Purveyor be continued, as the purchaser and distributor of the supplies would be in the same person. The Purveyor is also the purchaser of goods for the Indian department. Mr. WILLIAMS rose to prevent any person from falling into the mistake which the gentleman from North Carolina appeared to have done, by making remarks applicable to the printed bill (a part of which had been struck out and other parts amended) instead of the bill read from the Chair. He deemed it unnecessary to add any thing in reply to what had been so well said by the gentleman from Connecticut. Mr. ALSTON said he had attended to the bill as read, and not to the printed bill; and insisted that, from the provisions of the bill, the Secretary of War might direct the Purveyor and Quartermaster to purchase the same articles. If the bill was what the gentleman from Connecticut had stated it to be, he should not have objected to it; but it was not. Mr. QUINCY had doubts whether both these officers were necessary. There was no such officer as Purveyor of Public Supplies during the Revolutionary war. If it were found hereafter that another besides the Quartermaster General was necessary, he could be appointed. There ought certainly to be a responsibility attached to the purchase of supplies, and this might be placed in the Head of the War Department or Quartermaster General. He had not sufficient light on the subject, to say that both these officers are necessary. He was in favor of the bill as it came from the Senate. Mr. BLOUNT said, that though there was not a Purveyor of Public Supplies during the Revolutionary war, there was a Clothier, who did much the same business. If we are going to war, said Mr. B., he did not see how we could do without a Quartermaster General; and it would be improper for him to become the purchaser of supplies, which it is the duty of the Purveyor to purchase, because, as had already been stated, there would be no check in the business. There must be propriety in keeping the offices distinct. Mr. MACON observed, it was impossible to go to war without a Quartermaster General; for there is no man has so much to do about an army as this officer. There was always more difficulty in settling the Quartermaster General's accounts than any other. The only instance in which a Quartermaster General has to purchase supplies, is when, by some miscarriage or accident, the supplies from the Commissary or Purveyor do not arrive in season. It is necessary that such a power should be vested in this officer, to be used on such extraordinary occasions. As had been stated by his colleague, though there was no Purveyor during the Revolution, there were clothiers or agents employed in different situations, which answered the purpose. The qualifications necessary for the Quartermaster General and Purveyor are very different; the one ought to be a soldier, the other a merchant. The bill passed by a large majority. _Naval Establishment._ The House resolved itself into a Committee of the Whole on the bill concerning the Naval Establishment. Mr. CHEVES, the Chairman of the Navy Committee, moved to fill the blank in the first section of the bill with "four hundred and eighty thousand dollars," and said he believed it to be his duty at this time, to disclose to the Committee of the Whole the views and motives of the select committee in reporting the bill. Mr. C. said, I consider this subject as one of the most important that can be brought before this House; as a great question, involving, to a considerable extent, the fate of a species of national defence the most essential and necessary to the interests of this country. I know, said Mr. C., how many and how strong are the prejudices, how numerous and how deeply laid are the errors which I have to encounter in the discussion of this question; errors and prejudices the more formidable, as they come recommended by the virtues, and shielded by the estimable motives of those who indulged them. I have been told that this subject is unpopular, and it has been not indistinctly hinted, that those who become the zealous advocates of the bill will not advance by their exertions the personal estimation in which they may be held by their political associates. I will not do my political friends the injustice to believe that these exertions will diminish their confidence; but, could I think otherwise, I hope I shall never be diverted from a faithful discharge of my duty by considerations of this kind. I wish to lead no man, and I am determined not to be blindly led by any man. In acting with a party, I do so, because I adopt their leading principles and politics as the best, and because I believe, from the nature of free Government, it is necessary so to act to give efficiency to the exertions of any individual; but I do not feel myself, therefore, bound to renounce my deliberate opinions on all the great interests of the nation, or to take no independent part in the exertions of the party to which I belong. I sincerely believe that, if this infant Naval Establishment be either abandoned or put down, the party who now form the majority in this House, and in the country, may run great risk of becoming the minority, not only within these walls, but in the nation. It has been said, by a strong and lively figure of rhetoric, that this country is a great land animal, which should not venture into the water. But if you look at its broad high back, the Alleghanies, and its great sides swelling to the east and to the west, where do you find its immense limbs terminate? Not on some great plain which has been formed for their reception, but in two great oceans, the Pacific on the one side, and the Atlantic on the other. The figure explains the true interests of the country, in the inseparable union and necessary dependence of agriculture and commerce. The God of Nature did not give to the United States a coast of two thousand miles in extent, not to be used. No; it was intended by this bounty to make us a great commercial people; and shall we ungratefully reject the enjoyment of his unexampled beneficence? No, it has not and will not be neglected. A great portion of our people exist but upon the ocean and its fruits. It has been eloquently, and not less truly than eloquently, said, that "the ocean is their farm," and it must and will be protected. But how is this protection to be afforded? I will endeavor to prove that it can be done, and done most cheaply and effectually by a naval force; and if I succeed in this, I shall hope for the concurrence of the committee. No proposition appears to me more true or more obvious, than that it is only by a naval force that our commerce and our neutral rights on the ocean can be protected. We are now going to war for the protection of these rights; but in what way, and under what circumstances? The mode is altogether accidental, and not founded on the permanent relations or means of the country. It is not my intention to condemn the course which has been taken. It has had my hearty concurrence, and my zealous, though feeble, support. I hope it may be altogether effectual; and I believe it will inflict a wound which will be felt with poignancy. But it is, notwithstanding, partial and accidental; for, if Great Britain had not the Canadas on our borders, how could we attack or resist her, armed as we are? If we possess ourselves of the Canadas, and this we shall certainly do in the event of war, how and where shall we then continue the war without a naval force? We shall suffer the evils of war, without inflicting any of them on the enemy. We cannot send our regulars or our volunteers on the ocean. Does it not then result, inevitably, as the dictate of common prudence, that we should, as soon as possible, commence our naval preparations? The Naval Establishment of the United States has been heretofore so much neglected, that it is at present in a state of lamentable depression; and the question now is, whether we will suffer it to go down entirely, or attempt to raise it up to some degree of respectability. Some gentlemen say, "if you had asked for no more than the reparation of the frigates in ordinary, we might have granted your request." But, for myself, I would not thank any gentleman for this concession. The select committee conceived it to be their duty to bring the question fully before the House in the shape in which they have exposed it. Not to ask merely what it would do to assist by naval co-operation, in the first efforts of the contemplated struggle, but principally what it would do towards establishing and perpetuating a respectable naval force for the protection of those important rights of the people, which are, and must continue, exposed upon the ocean. Their determination was plainly, candidly, and boldly to speak to the House, and through it to the nation, on this great question, and leave its fate to the wisdom of the one and the good sense of the other. That a respectable Naval Establishment affords the only effectual means of causing our commercial rights to be respected, will, as a general proposition, be denied by few persons, if any. But its adoption by us is deemed improper by those who oppose it, on the grounds of the enormous expense which, it is said, the establishment will necessitate, and the inability of the nation, by any force which it can provide, to resist, with effect, the immense naval power of Great Britain. Is it not surprising that so much prejudice should exist against this establishment on account of its expensiveness, when it is ascertained that, during the whole eighteen years of its existence, from 1794 to 1811, inclusive, it has cost the Government only $27,175,695? I am afraid I shall be tedious, because the only way in which I hope to bring conviction home to the minds of the House, is by entering, with minuteness and precision, into a dry detail of figures and statements; but the necessity of the case must be my apology for the course which I shall take. If the House shall have full confidence in my statements, much will be gained to the argument; for it will be difficult, if not impossible, for the hearer to follow me through an examination of these details, as the argument proceeds. For this confidence, therefore, I will venture to hope. I believe the statements on which I rely to be accurate, as far as accuracy is material to the discussion. I will state them with candor, and, when I have concluded, I will put them into the hands of gentlemen who may wish to examine them for their own satisfaction, or to refute them. The average annual expense of this establishment, so much censured for its wasteful and improvident management, has but little exceeded $1,500,000, which is not much more than twice the amount of the usual annual appropriation for our economical Civil List. It has been generally supposed that it has been much more expensive than the Military Establishment, but I will show that this is not really the case. The expense of the Military Establishment, from 1791 to 1811, inclusive, has been $37,541,669, giving an annual average of $1,700,000, or $200,000 per annum more than that of the Navy. It thus appears that, in the gross amount, as well as in the annual expenditure, the Army has been more expensive than the Navy. Compare, too, the services of the Army with those of the Navy, and it will be found that those of the latter have been most useful and most honorable to the nation. I know of no service of this character which the Army has performed, except the defeat of the Indians by General Wayne, and the late gallant affair on the Wabash. The Navy, in the contest with France in 1798, were victorious wherever it encountered an enemy, and probably laid the foundation of the subsequent accommodation with that nation. In the Mediterranean, its exploits gave a name to the country throughout Europe; humbled, in an unexampled manner, the piratical and barbarous foe, and crowned itself with a reputation for intrepidity and heroism, which had not been exceeded by the exploits of any nation, and which must go down to a distant posterity. I mean not, by this comparison, to say any thing injurious to the Army, but only to declare that preference to which I think the naval services of the country are entitled. Admitting, if it be desired, that the Navy has heretofore occasioned an expense not warranted by its force or its services; and I cannot deny but that, from a variety of causes, the expense may have been unnecessarily great; an argument cannot thence be fairly drawn against its future use--the contrary is the fair conclusion. Past errors lay the foundation of future improvement. It was thus the greatest orator, and one of the greatest statesmen of antiquity, reasoned. The great Athenian orator, when rousing his countrymen, by his impetuous eloquence, to resist the ambition of Philip, declared that it was on their past misconduct that he built his highest hopes; for, said he, "were we thus distressed, in spite of every vigorous effort which the honor of our State demanded, there were then no hope of recovery." So may we reason in this case; for had these extraordinary expenses been the result of good economy, then, indeed, would their diminution be hopeless; but, as they have proceeded from a wasteful or unskilful expenditure, the remedy will be found in a reform of the abuse; to effect this reform, is the duty of Congress. But it has not only been less expensive than the Army, but it may be proved, as the committee have declared in their report, that "a naval force within due limits and under proper regulations, will constitute the cheapest defence of the nation." This will be partly proved by a comparison between the expense of the permanent fortifications of our maritime frontier and that of an adequate naval defence. The experience of modern naval warfare has proved that no fortifications can prevent the passage of ships of war. The present fortifications of our maritime frontier, though they are more numerous and better than they have been at any other period in our history, cannot prevent an inconsiderable naval force from laying many of our towns in ashes. Indeed, it is believed that no fortifications which can be erected will afford a complete protection against such attacks, while their expense would be oppressive to the nation. The city of New York alone, if completely fortified, would require a further expenditure of three millions of dollars, and a garrison of ten thousand men, and then might be laid in ashes by four or five seventy-fours. But we have a coast of two thousand miles to protect, the expense of which could not be borne by the nation. A better defence would be furnished by such a naval force as would give you a mastery in the American seas, and at home much less expense. The superior cheapness of naval defence seems to me to be satisfactorily established, and I am next to prove that the force proposed--I mean twelve seventy-fours and twenty frigates--are sufficient to protect us in our own seas, and defend our ports and harbors against the naval power of Great Britain. The first evidence that is offered in support of this proposition, is the opinion of naval men; and if the representations of any man may be relied upon with confidence, so far, at least, as that they are not founded in deception, I believe those of a sailor may be. By naval men, I have been assured that this force is adequate to the object proposed. It is impossible for me to state with accuracy, or in a manner calculated to give a due impression of them, all the reasons which they offer in support of their opinion, but among them are those detailed in the report of the select committee. Indeed, they advance the opinion, and support it with reasons, the error of which, if they be erroneous, I am unable to discover, that it will require the enemy to employ a triple force to put himself on a footing of equality with that of the United States. Their reasons are, as nearly as I can state them, these: there must be stationed on our coast, at any given time, an equal force; this force cannot be fitted out, unless with great disadvantage to the service in point of expense, and in respect to the health of the crew, for much more than three months' service. An equal force must be put in requisition and kept in readiness to relieve that on the station. But, as all the equipments of the enemy must be made in Europe, the force destined to relieve the first must be despatched by the time the first may be supposed to have arrived on our coast, because it will be necessary, at a period as early as the arrival of the second, for the first to return; but the first could not proceed to Europe, be equipped, and return to relieve the second in time; and therefore a third equivalent force is necessary, and thus three times the force of the United States must be employed by the enemy to place himself on a footing of equality with it. History may be resorted to, with confidence, to prove that neither Great Britain, nor any other nation, has ever been able to station, for any length of time, in distant seas, a force equal to that which, in the opinion of naval men, is sufficient to accomplish the objects proposed by the committee--the dominion of the American seas, and the defence of our ports and harbors. There is one fact which, above all others, shows the inability of Great Britain to keep a large fleet on our coast. From the frozen regions of the North to the Isthmus of Darien, she has not a port fit for naval equipment or repair, except Halifax; and if, as the opponents of the Navy seem to think certain, and I hope their opinions may be realized, we shall, in the event of war, deprive her of that, she will be without the means of repairing a disabled vessel in our seas. Under such circumstances, any thing but temporary service would be utterly impracticable. But, said Mr. C., on the subject of the British naval force, there is great misconception. The high-sounding number of a thousand ships appals the mind, and an examination of its actual force, and the numerous requisitions which are made upon it, is usually rejected as an idle labor. Let this examination be made, and at least some part of the terror which it excites will vanish. Of the eight hundred and thirty-three ships which Great Britain had in commission in 1801, and she never had more, it is believed there were only three hundred and eighty-three that exceeded the size and capacity of the large privateers that will probably be fitted out by the citizens of the United States, in the event of war. Of this last number, there were one hundred and forty-two of sixty-four guns, and above; twenty-two between fifty and sixty guns; one hundred and fifty-six between thirty-two and forty-four; and sixty-three between twenty and thirty guns. The remainder of the vessels in commission consisted of one hundred and seventy-four sloops, one hundred and forty-one gun-vessels, and one hundred and thirty hired vessels. These hired vessels are small vessels, of from four to ten guns, which, it is believed, are only employed for revenue purposes. This review and enumeration, I have no doubt, proves the actual force of the navy of Great Britain, however great it really is, to be much inferior to the impression almost universally received, from the high-sounding boast of her thousand ships. Nor has the actual force of the British navy been more misconceived than the application of it. The common impression is, that the Government can direct to any given point almost an unlimited number of ships. But if this delusive impression be removed, it will be found that, notwithstanding the greatness of the force, the points to which it must be destined are so numerous and dispersed as to put it all in requisition. This I will prove by reference to the distribution of her fleets in 1801. [Here Mr. C. read a statement of the force and distribution of the British fleet at that time.] From which of these stations, said Mr. C., could she have spared, with safety and prudence, a portion of the force employed? Could she, from all, have stationed and continued in our seas a force which would have been equal, under the disadvantages which have been pointed out, to twelve seventy-fours and twenty frigates? How much less would she have been able to have furnished a force which would be superior to a naval armament whose expense should equal that of the military preparations of the present year? But it may be said, that the ships which Great Britain has in ordinary would be more than equal to any increase which any circumstances would require. This might be true, were her seamen unlimited in numbers, and her pecuniary resources inexhaustible; but both are limited, and so must be her naval armament. To fit out vessels which she has in ordinary, would require, within a few thousand, all the seamen in her merchant service, and such an addition to her annual expenditure, as the nation neither would nor could bear. The true object of inquiry to ascertain her efficient power is, what number of vessels is she practically able to keep in commission, and the answer may be received in a shape the most unfavorable to my argument, yet confirmatory of it, in the example of 1801, the year which I have selected for illustration, when it is confidently believed her equipment was greater, combining force and numbers, than at any other period of her history. But, while it is contended by some that it will not be in the power of the nation to establish an effective naval force, there are others who are opposed to it, lest we become too great a naval power. They fear that our fleets will cover the ocean, and seeking victory on all the opposite shores of the Atlantic, involve the nation in oppressive expenses, and in wanton and habitual wars. Such objects are certainly not contemplated by the report of the committee; nor can such events possibly happen, as long as we remain a free people. The committee have recommended such a navy as will give to the United States an ascendency in the American seas, and protect their ports and harbors. The people will never bear the establishment of a greater force than these objects require. The reasons which forbid Great Britain, or any other European power, to station large fleets on our seas, will equally forbid us to cross the Atlantic, or go into distant seas, for the purpose of frequent or habitual wars. But a navy is said to be anti-republican, because it was opposed by the Republicans in 1798. I apprehend, however, that it was then objected to, not because it was anti-republican in itself, but because the Republicans of that time believed it was to be employed for improper objects; because, while it was unnecessary at the time, it was of such a nature as only fitted it for the time, because it was part of a system which embraced unnecessary armies and unnecessary taxes and loans, to continue a war beyond the just objects of war--a war which, to use the language of the day, was to be waged by every man, woman, and child, in the nation, to which we are opposed. We are told, also, that navies have ruined every nation that has employed them; and England, and Holland, and Venice, and other nations, have been mentioned as examples. The vast debt of Great Britain is declared to be among the pernicious fruits of her Naval Establishment. This I deny. Her debt has grown out of her profuse subsidies, and her absurd wars on the land. Though the ruin, which is supposed to threaten England, is attributed to her navy, it is obvious that her navy alone has saved and still saves her from ruin. Without it she must, long since, have yielded to the power of France her independence and her liberties. We are told that the same wealth which she has expended in supporting her navies would have been employed more profitably for the nation in the improvement of its agriculture and manufactures, and in the establishment of canals and roads, and other internal improvements. But experience is better than theory. Let us compare England with nations which have no navies, or comparatively inconsiderable navies. The nations of the Continent of Europe are without such overgrown and ruinous Naval Establishments, but do you there find the highest improvements in agriculture, the most flourishing manufactures, or the best roads and canals? No, it is in this nation, that has been ruined by her navy, that you find all these improvements most perfect and most extended. I mean not either to be the panegyrist of England; but these truths may be declared for our instruction, without suppressing the feelings excited by the wrongs she has done us. England has not, then, I conclude, been destroyed or impoverished, but preserved and enriched, by her navy. Was Holland ruined by her navy? No; surrounded by the great powers of the continent, with a population not exceeding 2,000,000 of souls, she protected and secured her independence for more than a century, against her powerful neighbors, by means of her commercial riches, which were cherished and defended by her naval power. Did Venice owe her decline, or fall, to her navy? While the neighboring Italian States were subdued, year after year changing their masters and their tyrants, she long continued to ride triumphantly amidst the storm, independent, and, in a great degree, free. It was her naval and commercial power which made her rich and great, and secured her existence as a State so long. Look even at the little Republic of Genoa, whose inhabitants, but for its commerce and its navy, would scarcely ever have possessed "a local habitation," or "a name!" But I must have exhausted the patience of the House, I will therefore conclude the observations which I proposed to make on the general merits of the question. SATURDAY, January 18. _Naval Establishment._ The House then resolved itself into a Committee of the Whole, on the Navy bill; when Mr. CHEVES finished his speech in favor of the bill, as given in full in preceding pages. Mr. SEYBERT.--I rise under a pressure of more than ordinary embarrassment--prudence on one hand bids me shrink from the task which I am about to undertake; whilst on the other hand, a conscious duty impels me to engage in the consideration of the question now before the honorable committee. My friend from South Carolina (Mr. CHEVES) says this question is all important to this nation; in this I perfectly coincide with him, and therefore cannot rest satisfied with a mere vote on this occasion. Sir, it is not my intention to follow the gentleman from South Carolina through all the windings of the labyrinth into which he has ventured to penetrate. I will not pretend to chase reason on the wing. I will not particularly follow the gentleman in his comparison of the Army and Naval Establishments of the United States. He has stated to us that the Army has cost this nation much more than the Navy; he concludes we ought to be equally liberal in our appropriations for both these purposes. Sir, I perceive no reason in this assertion. Some gentlemen on the other side of the House may say, that we have been lavish in our appropriations for an army; even admitting that in this respect we have been liberal to extravagance, it surely cannot be inferred that we should make ourselves doubly guilty of this charge. I will agree to make appropriations for the establishing a navy for the United States. The gentleman from South Carolina has told us, that when the war which we are about to wage, shall be over, our Army will leave us. Sir, I am happy to hear that on such an event the military will be readily disbanded--a dread of the contrary gave much uneasiness to many a few days since--this is just what we wish should take place. On the other hand, said he, "your proud Navy," will remain. It is for this, with many other reasons, why I am opposed to a navy. I wish he could have proved to us, that with the end of the war the Navy would also leave us; perhaps I should then agree with him in favor of its establishment: though the "proud Navy" will remain with us, he has neglected to tell us at what rate of expense. Sir, the gentleman from South Carolina says many oppose a navy, because they deem it an anti-republican institution. On this head, I shall remark but little: I will only ask if it is to remain with us in times of peace with its numerous train of officers, may it not become a powerful engine in the hands of an ambitious Executive? Sir, it was thought proper to make the foregoing remarks as preliminary to the subject. The question of a Naval Establishment for the United States more especially concerns those who inhabit commercial districts. As one of these I am much interested. Many persons maintain, that a naval system of defence is indispensably necessary to a nation, whose seaboard extends more than 1,500 miles, with a shipping interest amounting to 1,300,000 tons--in this respect, ranking the second of modern nations. The argument is as specious as it is plausible; it is liable to many, and in my opinion, to insuperable objections. The proposition before us will be considered as leading to a _permanent_ Naval Establishment. This course is warranted by the report of the Secretary of the Navy as well as by the mode which was pursued by my friend from South Carolina. I shall not hesitate to declare my decided opposition to such an establishment, and will proceed to state the objections whereon my opinion is grounded. Sir, I deem it inexpedient to commence a permanent Naval Establishment at this time. We are quite unprepared for it--we are in want of all the necessary materials; though we have been told that our forests abound in all the necessary timber, it was said little of this material was to be found in our dockyards. The gentleman from South Carolina has told us, that a sufficiency of seasoned timber, to build four seventy-fours, was now on hand, and that the proper authority deemed it advisable to be used for frigates. Sir, this timber is a portion of that which was purchased some years since, for the purpose of building six seventy-fours. It now appears, that of this timber as much as was sufficient for two of these vessels, has been employed to build smaller vessels or gunboats, I presume. This is all a piece with our pretended economy. This mode of proceeding will not answer, sir. We are in the wrong from the commencement of our Navy. I do not wish it to be understood that I have decided a navy will never be a proper mode of defence for this nation--but whenever it shall be determined on, we should begin right; this can only be done by following those nations who have had most experience on the subject. Our first step should be to store away the proper timber. This should be done in times when we can best afford it--in times when our market is glutted--in times when labor can be commanded at fair prices--at a period when we enjoy peace, and surely not when we are about to engage in a war. We have heretofore paid the highest price for every article; we have given double wages for labor; and instances might be mentioned, when the workmen were transported in stage coaches, at an enormous expense, from our large seaport towns to the navy yard of this city. Contracts for timber were made in haste and at a very advanced price. As soon as it was obtained, it was put together, and in a few months we saw it floating in the form of a ship of war--_rotten_ ships, I may say, sir, for I believe without exception in the frigates which were built by the United States, the more important parts decayed and were rotten in two, three, or four years. In many instances the expense for repairs was equal to the original cost. A single frigate, the Constitution, has cost for repairs, from October, 1802, to March, 1809, the enormous sum of $302,582 21, or upwards of $43,000 per annum for seven years in succession. Let us view this subject in a more extended sense--I mean as regards our commerce generally--we shall still have cause to entertain the opinion which we first adopted. We cannot protect our commerce on the ocean. Our ships have vexed every sea--we trade to all parts of the world; of course, to protect our commerce, our ships of war must abandon our coasts and encounter all the force of the enemy or those of Europe. The ports we have in view are European. If your frigates, for convenience and safety, are to cruise only on your coasts, what will be the fate of the millions which are embarked beyond the Cape of Good Hope? By this management surely you cannot afford it protection. France, Spain, and Holland, when combined and backed by an armed neutrality in the north of Europe, could not secure their commerce. The fleets of Great Britain now sail triumphant over every wave of the deep. The Russians have a navy far superior to that which it is proposed we shall establish, and they cannot protect their trade in the confined limits of the Baltic. They count fifty or sixty sail-of-the-line, besides many frigates and smaller vessels. Sir, the expenses which are incurred by a Naval Establishment, far exceed the profits which arise from the commerce which it is intended to protect. This proposition is warranted by the experience of Great Britain, the most commercial nation of modern times. In the year 1798, the total imports and exports of Great Britain amounted to £94,952,000. For the same year the expenditure for her navy amounted to £13,654,013, or about one-seventh of the total imports and exports, or fourteen per cent. on the total capital employed in commerce. What regular trade can yield such profits on the outward and inward cargoes? To me this is a secret. In the year 1799 Mr. Pitt computed the profits on the commerce of Great Britain at £12,000,000, or one and a half millions less than the expenses for her navy the preceding year! Sir, the expenses which are necessarily connected with a Naval Establishment, constitute a very serious objection to it. At this time, the annual expenditures for the British navy amount to nearly £17,000,000, or $80,000,000. Every succeeding year brings with it an increase of expenditures. This has been the result year after year since the commencement of the institution. Our prospects will be the more evident when we take a view of the expenses which have been already incurred for the infantile establishment of our country; we shall be led to the same conclusions. The American navy was commenced in the year 1794, and by the end of the year 1811, the expenditures amounted to $27,456,979--a sum much greater than the one-half of the public debt on the 1st of January, 1812. This would have been much better applied, had it been placed with the Commissioners of the Sinking Fund. I will ask the gentleman from South Carolina, what has the nation benefited for this enormous expenditure? What would have been the amount expended, had this engine been Herculean, with Admirals of the Red, White and Blue squadrons, with numerous dock and navy-yards, placemen, &c.? For we shall gradually advance to all this, if we do not stop short at this time. For the benefits of such appendages, I will refer you to a statement made to this House, the last session, concerning the navy-yards belonging to the United States; especially to the details of the expenditures of that connected with this city. The document I refer to, was laid before this House on the 25th February, 1811. It will inform you, sir, that the value of the work done from the 1st of January to the 31st of December, 1810, was $73,947 52. The commandant confesses, in his returns made to the Secretary, that this work, in many instances, is rated twenty per cent. above the prices paid in other places. The salaries in this same yard, for the same year, (1810,) amounted to $95,637 64-1/4. So that the pay for the salaries and the wages at this navy-yard, exceeded the value of the articles manufactured, even when rated far above the fair prices, in amount $21,790 12-1/4! This establishment is under the immediate eye of the Government; we might suppose every attention was paid to economy; if so, who will desire further proofs of the advantages of a navy! Sir, I further object to a navy, because it will be the means of exciting many wars, which, without the establishment, may be honorably avoided. It is said, nations are involved in war, in proportion to the extent of their navies; and some assert (Brougham) that a perpetual war is one of the two modes which are necessary to support a powerful naval establishment. Sir, a naval establishment will create a new and a dangerous interest in our country. Nothing is more common than to be told, that such are the wishes of the naval interest of Great Britain, and that this or that war must be entered into to gratify them. For my part, sir, I shall be very sorry indeed, if ever the period arrives in the United States, when any particular interest or community shall direct the Government, whether it be naval, agricultural, manufacturing, or commercial--the general welfare should be the sole great ruling principle in the National Councils. Sir, I am deterred, when I consider the fate of all those nations who at different periods have been famous for their navies. The naval strength of the Hanseatic League was such, two centuries past, as to excite terror on the part of England. These, sir, distant free cities, are now the appendages of mighty France, and have no political existence. Who has not heard of the once formidable fleets of Venice and Genoa? At one time England was indebted to the latter for officers to command her ships of war--alas! these republics are now consigned to oblivion. Denmark was at one time the mistress of the ocean; by means of her fleets she often invaded England, and held her in a state of subjection. The Danes heretofore burned London, Paris, and other great cities--they are now controlled by France, and they have had their Copenhagen defeat. Holland, with her Van Tromps, and De Ruyters, occupied the British Channel at pleasure; this power defeated the navies of England and France. Where is Holland now? Incorporated as a part of the French empire. Spain boasted her invincible armadas; Elizabeth of England, by nature haughty, proud, and ambitious, trembled at the very mention of them, until they were dispersed and destroyed by storms at sea; Spain is now the vassal of France. Not very long since the navy of France sailed triumphant along the British coast, looked into Portsmouth harbor, and taunted British spirit. I ask you, sir, where is the strength of which these nations formerly boasted? All are inoperative, and dread the gigantic power of the British navy--they are in part sick in dry docks, or are blockaded in their ports. Mr. Chairman, Great Britain, though at this time triumphant in every sea, if she persists in her expensive naval establishment, with her present debt of £800,000,000, which was chiefly created for her navy--Great Britain, sir, I say, with all this, must sink under the heavy pressure. She will hereafter derive very little satisfaction from her brilliant victories on the 1st of June off Cape St. Vincent, Camperdown, Aboukir, and Trafalgar. Shall I be pardoned, sir, when I fear our vessels will only tend to swell the present catalogue of the British navy? Of the 1,042 vessels which she possessed in July, 1811, one hundred and nine were captured from the French, forty-six from the Danes, twenty-five from the Spaniards, twenty-four from the Dutch, and three from the Italians; making a total of two hundred and seven captured ships, or one-fifth of her whole navy. Small ships are proper for the service of the United States--by their agency we shall be able to annoy the convoys of an enemy. The privateers which were fitted out in every port during our Revolutionary war, destroyed much of the British commerce, even in the British and Irish Channels, whilst the frigates which were built by the Government did little or nothing--but two of them remained at the conclusion of the contest. The enemy will not watch your small vessels; they may enter all your small inlets, where heavy vessels cannot venture to approach them; and, at the conclusion of the war, they may be sold for the merchant service. I shall not follow the gentleman in his remarks on the bill before the committee; I shall vote against it, though it is my present intention to appropriate the sums requisite for the repairing and equipping our present ships of war. I will go no further. I tell you, sir, naval victories in the end would prove fatal to the United States; the consequences which have uniformly followed in other countries must take place here. If the United States shall determine to augment their navy, so as to rival those of Europe, the public debt will become permanent; direct taxes will be perpetual; the paupers of the country will be increased; the nation will be bankrupt; and, I fear, the tragedy will end in a revolution. Mr. MCKEE rose, with deference, to perform a duty which he owed to his constituents, by delivering his sentiments on the very important subject before the committee, though he confessed himself very inadequate to do justice to it. He deemed the question of great magnitude; as he feared, if we were to proceed to build up a large naval establishment, it would affect the destinies of this nation to the latest posterity. The gentleman from South Carolina has said, that he has great prejudices to encounter. Mr. MCKEE would have thought that the deliberate opinion of a majority of Congress, expressed upon more than one occasion, was entitled to a more respectful term than _prejudices_. Those decisions proceeded from the honest convictions of some of the best friends of the country. Mr. McK. denied this doctrine, that "it is demonstrably clear that this nation is inevitably destined to be a naval power;" and he believed that, if the attempt were made to make it such, it would prove the destruction of our happy constitution. He would proceed to show on what ground he supported the opinion that the maintenance of a permanent naval establishment would prove ruinous to this country. For this purpose, he should be under the necessity of submitting some calculations to the House; for, though he had heard a course of this kind condemned, as fit only for the counting-house of the merchant, he considered it as the most conducive to correct legislation. It is certainly a matter of just calculation, when we are called upon to establish a permanent navy, to show that such an institution would cost more than any advantages to be derived from it would compensate. [Here the Speaker went into detailed statements, taken from the authentic reports of the Navy Department, showing the enormous expense of building our ships, and the enormous expense of repairs; the great expense of manning and equipping them, and the pay of officers idle at home while the ship was rotting which cost so much, and which, at the time it was built, it was morally certain would have nothing to do until it rotted.] Mr. McK. had said, this nation was not destined, under the present constitution, to be a great naval power; and he maintained that the statements which he had exhibited--and which he believed, for the purposes of argument, would be found substantially correct, when tested by experience--went conclusively to show that the expenses of the naval establishment of ten frigates and twelve seventy-four gun ships, now proposed to be built, could not be supported without permanent internal taxes, and a constant increase of the public debt and annual expenditure. And if the system was gone into, to the extent contemplated by the gentleman from South Carolina, (Mr. CHEVES,) of building forty frigates and twenty-five seventy-four gunships, which he admitted would be necessary to relieve the naval establishment from comparative inefficiency, the annual expenses of the Government with such a system (as already shown) would be more than $25,000,000, which would rapidly increase the public burdens, and entail on this country that fatal system which has almost ruined the British Empire. The gentleman from South Carolina (Mr. CHEVES) takes it for granted that our commerce can be effectually protected by a navy; and assuming this fact, he proceeds to show that every portion of the American people are equally interested in the building a navy, because all are more or less interested in protecting commerce. But, the fact is, that navies have never been considered as adequate to the complete protection of commerce. Look, said he, at the situation of the Old World, in times, to them, more prosperous than the present! What is the fact? Holland, with almost no navy, possessed an extensive and profitable commerce; and Spain, about the same period, with a large and powerful fleet, had no commerce. But the situation of Europe is, in all respects, different from ours. The Governments of Europe are surrounded by rival powers, who are mostly engaged in war with each other, while we are happily far removed from them all, and have no neighbors to annoy us. Therefore, arguments drawn from the Old World are wholly inapplicable to this country, because their situation and form of Government are altogether unlike ours. And when we turn our eyes from foreign Governments to our own, we find that no people since _Adam_ were ever more prosperous or more happy than the American people have been for the eight or ten years previous to the year 1808. Private fortunes have been accumulated with unequalled ease and rapidity; commerce has prospered beyond example; agriculture has flourished; and the revenue abundant, beyond the wants of the Government. And did this state of prosperity exist at a time when your commerce was protected by vessels of war? No; but at a time when your navy was out of use; and in proportion to the increase of your naval expenditure, in the same proportion has your commerce decreased. The protection of commerce is the only ostensible object for which navies are created, while power and conquest are the main objects. Show me, said Mr. McK., a nation possessed of a large navy, and I will show you a nation always at war. When has England been at peace with all the world, since she became a great naval power? Such instances in British history were so rare, and of such short duration, (if they existed at all,) that he could not answer the question; and he believed it would be difficult for the ingenuity of the gentleman from South Carolina (Mr. CHEVES) to answer it. It is true, that England, the greatest naval power in the world, is also the most commercial; and it was not to be doubted that her commerce received aid from her navy, though it owed its extent principally to the industry and consequent wealth of the nation. But England has other and far more important objects to effect by her navy than that of protecting commerce. Her insular situation renders it necessary for her protection, and she keeps it up for the purposes of war and dominion. England would destroy her navy to-morrow, if the protection of commerce was her only object; because it cannot be denied that the expense of keeping up her navy exceeds the profits of that commerce which it is said to protect. Navies, therefore, must be considered as instruments of power, rather than as the means of protecting commerce. They are the vile offspring of those nations where the power and grandeur of the Government is every thing, and the people are nothing but slaves! Mr. McK. having stated that a navy was an instrument of power, rather than a means of protecting commerce, in order to show that this opinion was not a mere vagary of his own imagination, but the deliberate opinion of some of the wisest men of this country, most solemnly pronounced, he would beg leave to read a document, which he hoped would have weight with some gentlemen of the committee. It is taken from the celebrated instructions of the Virginia Legislature, of 1801, to their Senators in Congress, and is said to have come from the pen of the present Chief Magistrate of the United States; and he believed he could venture to say, that no Legislature ever possessed more talents than were drawn together into the Virginia Assembly on that occasion. After having noticed other subjects, in speaking of the navy, they say: "With respect to the Navy, it may be proper to remind you, that, whatever may be the proposed object of its establishment, or whatever may be the prospect of temporary advantages resulting therefrom, it is demonstrated by the experience of all nations who have ventured far into naval policy, that such prospect is ultimately delusive; and that a navy has ever, in practice, been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce. Nor is there any nation, in the judgment of the General Assembly, to whose circumstances this remark is more applicable than to the United States." #/ These opinions may, now, however, be considered as old-fashioned; but being himself an old-fashioned man, he confessed he was more pleased with them than with the new political doctrines preached by the gentleman from South Carolina, (Mr. CHEVES) to the House and the nation. It might, however, possibly be the fact, that he (Mr. McK.) was wrong, and only indulged ancient _prejudices_, and the gentleman from South Carolina right; and if such were the case, he could only say, in his own defence, that, under the influence of those old doctrines, the American people had enjoyed a state of prosperity and happiness unparalleled in the history of man--a state of prosperity which he feared he would never see equalled. He looked back on those days of happy prosperity with the same feelings of mournful regret with which he looked back to the days of his youth, fearing that they, like the days of his youth, would never again return--especially if the Navy mania should prevail. Establish a navy, said Mr. McK. and this country may bid farewell to peace; because you thereby organize a class of society who are interested in creating and keeping up wars and contention. Officers in the Navy and Army are mere cyphers in society in times of peace, and are only respectable in time of war, when wealth and fame may await their exertions. They are, therefore, interested in keeping up a state of war; and being invested with the management of an instrument of war, it is to be expected that it will be used in some degree to answer their own purposes? No man who will reflect for a moment, but must be satisfied that the disgraceful and lawless conduct of the British naval officers on our coast originated in a desire on their part to bring on a war with this country, in which they looked forward to large dividends of prize money; and these acts were contrary to the wish and expectation of Great Britain; in one instance the act was disavowed; and it may be asked why were the officers not punished who acted contrary to the wishes of the Government? The answer is obvious; because the influence of the Navy in England is so predominant that the Government are afraid to touch the subject, and the consequence is, that the Government are compelled to bear the odium of acts which they disapprove; and the same cause which has produced this effect in England, if permitted to operate, will produce a similar effect in this country. Our little Navy has already contributed much towards the irritation which exists between this country and England; and under any other President than Mr. Jefferson, it would have brought on a war in 1807. And what real benefit has resulted from it to the Government? Has a picaroon or a buccaneer ever been chastised by them? If they have, he had no recollection of the case; he had seen indeed paragraphs in the newspapers mentioning that the frigate President, or some one of the vessels, had sailed from the navy-yard to Norfolk, from thence to New York, and finally arrived safe at Boston; but for what purpose he was totally ignorant, unless, indeed, it was to sail back again, and furnish the materials for a new article for the newspapers; and for these eminent services, the American people have already paid about $30,000,000. TUESDAY, January 21. _Naval Establishment._ The House again resolved itself into a Committee of the Whole on the bill concerning the Naval Establishment. Mr. JOHNSON said: I do not know, sir, why I should regret the discussion of any subject in this place, when I recollect that each member is under the same obligations of duty and responsibility. It has been said that no member would be thanked for his vote in favor of this bill--and, fearless of censure, I shall oppose this attempt to lay the foundation, and to pledge the property of the people for naval systems, as ruinous to the finances of the country, as it will be destructive to the peace of the nation. After every effort in my power, I could not suppress the sensation of sorrow, that Congress should be distracted with a subject that would justly excite alarm throughout the nation, even in the hours of profound tranquillity. I have looked to the Treasury reports, and I see a national debt of about fifty millions of dollars. I look to the aggressions of England, and I find we have been driven to the necessity of creating a great and expensive military force to avenge our wrongs and to expel the enemy from her North American colonies. I look to the arguments of the advocates of this pernicious system, and they acknowledge that we are driven to the brink of a war that will require loans and taxes, and end in a new debt of at least fifty millions of dollars--and under these circumstances, when we are upon the heels of a second revolution, when the people are likely to be most pressed for the ways and means to carry on the war with vigor and certain success, the ruinous system of a great navy is pressed upon us. Upon the return of a second peace, when the British possessions shall be incorporated into the Union, and our army disbanded--when commerce shall be restored, and a surplus of revenue in the Treasury--after meeting the demands of the Government, with more propriety might the question be presented for consideration. I believe, sir, since the political reformation in 1801, the question of building a navy had never been before presented directly to the consideration of Congress. When Mr. Jefferson, that illustrious character, presided over the destinies of the United States, why was not this navy-building proposed? Then we had a revenue of fifteen millions of dollars annually, and a surplus in the Treasury. No, sir, such a system had been put down too recently--the struggles against a navy in '98-9 were not forgotten. I deny the capacity of the United States to maintain a navy without oppression to the great mass of the community in the persons of tax-gatherers; and if a great navy could be maintained, it would be more than useless--it would be dangerous to the peace and tranquillity of this nation. I was in favor of repairing and putting into service the whole of our naval force, consisting of one hundred and sixty-two gunboats and upwards of fifteen frigates and smaller war vessels; because this naval force, united with our fortifications, would give security to our coasts and harbors, protect our coasting trade, and would be important in the present crisis to co-operate with privateers and individual enterprise against the commerce and plunder of Great Britain. But this is not the object of the bill. It contemplates and embraces a navy to protect our commerce in distant seas as well as at home, and which cannot cost less than twenty or thirty millions to accomplish; and, when built, would entail upon the Government of the United States the annual expense of fifteen millions of dollars,[25] equal to the amount of our whole revenue in the most prosperous years of commerce under the administration of Mr. Jefferson, and double the amount of our present financial income. It is the system, as well as the expense, that I object to; and while I am ready as any man to keep a small naval force, to be confined to the protection of our maritime frontiers, as well as I am to keep up a small land force, to protect our territorial frontiers, I will not vote one cent for a system of naval force which is destined to keep foreign nations in check in distant seas, and destined to entail upon this happy Government perpetual taxes and a perpetually-increasing national debt. The people will not support such a Naval Establishment--they have the corrective in their hands; and build this fleet of twenty seventy-fours and forty frigates, and the people will in their turn put them down. But, sir, we are told that we are a commercial people, and that you cannot restrain a spirit of enterprise in our citizens which is limited only by the polar snows to the North and the icy mountains to the South. No person has attempted to damp that gallant spirit, that mercantile enterprise--such adventurous voyages have been fostered and cherished by every means in the power of the Government. But, sir, has this unparalleled enterprise, this gallant spirit, been carried on by a navy? Such a thing has never been thought of, which proves that this question of a navy has no connection with this commercial enterprise; and the existence of one without the other, is positive proof of the fact. But it is also said, that agriculture and commerce are twin sisters, and the learned gentleman from New York (Mr. MITCHILL) will not allow a more distant connection. I have no objection to such a union, and I did expect that it would have been demonstrated what was the real relationship between these twin sisters and a permanent navy; whether it is that of cousin-german, brother or husband. As these subjects have not been identified, I must be permitted to say that there is no connection--unless under the disguise of protection, the navy would be the destroyer both of commerce and agriculture--by taxes upon the one and constant war upon the theatre of the other. The advocates of a navy need not expect to cover the deformity and danger of the system by telling the people they are friends to the protection of commerce--and that those who oppose it are ready to relinquish our rights upon the ocean. No, sir, this will not do. They will ask if our commerce, as great as it has been, was ever protected by a navy. They will look at the expenditure of the public money--they will see twenty-nine millions of dollars expended upon our present Naval Establishment; and though they may not complain of that prodigal waste of public money upon so small a naval force, they will look to the effects produced by this power, and they will refuse to augment it, until, indeed, the Peace Establishment shall require augmentation. The people will look to the votes of this House, and they will see the opposers of a navy willing at this moment to avenge the depredation upon our commerce and neutral rights by actual hostility. I am not prepared to give up our rights, whether upon the ocean or upon land, whether commercial or personal; but I may differ in the means of avenging these wrongs, and vindicating those rights, and I shall ever differ from those who wish a navy to ride triumphant in distant seas, and, under a pretext of protection to commerce, doom the nation to galling burdens too intolerable to be borne. But we are told, sir, that this question partakes of the character of a self-evident proposition. Indeed, sir, and in what respect is it entitled to this definition of self-evident? Unless, indeed, from every consideration of history, experience and reason, it is evident that a navy is an engine of power and ambition, calculated to embroil a nation in quarrels and wars, and to fix permanent wretchedness upon the industrious class of the people. When we look to the delegation from each State, we find a difference in sentiment upon this subject, whether lying on the seaboard or distant from it. The chairman of the Naval Committee has attempted to make us believe that a navy is the anchor of our hopes, and I dare venture to say, his eloquent colleague (Mr. WILLIAMS) will in due time denounce it as the most abominable system--always employed in the fell purposes of outrage, plunder, war, and death. The same division of sentiment exists in Massachusetts as to this destructive and expensive establishment. And, sir, let me not omit to mention, the sentiments of the Republicans of '98-9 were not only entitled to the love and confidence of the people, but worthy of our imitation. Nor will I omit the resolutions of the Virginia Legislature in opposition to a navy, when they remonstrated against measures which they considered ruinous to the freedom of the United States--nor is my respect for those opinions lessened, although many Republicans in Congress at this time, and men of talents, have become great advocates for a navy, and I will put it to the people whose opinions are entitled to their approbation, whether a navy beyond the peace establishment is ruinous, or the rock of our safety. Leaving the division of sentiment in our country, let us advert to ancient and modern history, and search for examples upon this important subject. And here, sir, I will take this position, and defy history for an example, that no great naval power ever confined their naval strength to the legitimate object of protecting commerce in distant seas. I will refer to Tyre and Sidon, Crete and Rhodes, to Athens and to Carthage. No sooner had these nations ceased to confine their naval strength to their maritime defence at home, to the protection of their seacoast, than they were engaged in plunder, piracy, depredations upon other nations, or involved in wars, which certainly accelerated, if it did not produce, the downfall and destruction of those governments. Peace and tranquillity is not the natural state of a great naval power. A disregard of public law, sacred treaties, and bloodshed, would suit it better; and it has been and ever will be, the consequences of such force. These nations furnish another example and instructive lesson to the present generation--that while their commerce and navy furnished a small part of the people with the luxuries of every country at that time known, the great mass of citizens at home were miserable and oppressed. Their rights neglected, their burdens increased, and their happiness destroyed, while their fleets and external grandeur carried astonishment and terror to distant nations. When a nation puts forth her strength upon the ocean, the interior of the country will be neglected and oppressed with contributions. Ancient history does not furnish a solitary instance of any permanent good, or long continuance of peace arising from a great naval supremacy; such overgrown power, such unnatural strength, must feed upon plunder, at home and abroad. When we come to modern nations we have proof before us of the positions I have taken. We have been told of Holland, as a people existing in a most flourishing state of prosperous commerce without a navy to protect it, and we have been told of Spain as a naval power without commerce to protect. But leaving these examples, let us look at France and Great Britain; we here have examples before our eyes; we need no history; the facts are before us. Admit that Great Britain, with her thousand vessels, could protect her lawful commerce, let me ask, if her navy has ever been confined to that object; whether it is confined to that object at this time; whether her navy has not fattened upon the spoils of Europe, Asia, Africa, and America, and the commerce of neutral nations, making war equally upon friends and enemies. Her navy, triumphant in every sea, is employed in a system of plunder against the world, and, notwithstanding this supremacy, we see her citizens groaning under a national debt of eight hundred millions of pounds sterling, more than all the nations of the universe could pay. We see her upon the precipice of bankruptcy--we see her people, her numerous subjects, loaded with taxes, that would astonish any man who did not know the fact--notwithstanding this, the public debt is daily increasing, and it is now acknowledged by all the world that she is fighting for her existence--victorious at sea and safe at home from invasion, and still her very existence is at stake. Sir, I never wish to see the liberties of my country afloat upon the ocean and staked upon the strength of a navy. Look at France, separated from her enemy by a narrow channel, without vessels to meet the fleets of England on the water, and still she is unable to burn the seaport towns of France or invade the French territories, or in any way to make an impression upon her. Populous and powerful upon land, nothing but the imperial despotism that exists throughout that vast empire, prevents the country from being the most enviable residence upon the globe, except our own favored land. Let not the Congress of the United States therefore stake their existence upon navies, let us not withdraw the protecting hand of Government from the soil; let us not increase the burdens of the people, and weigh them down with a public debt to support external grandeur. Do not by this system destroy the affections and attachments of the solid and honest part of the community, who support the government of the country. Sir, the report of the Naval Committee has assumed principles as erroneous as they are novel--that the protection of maritime commerce was, above all other objects, the first and the greatest consideration which laid the foundation for the present constitution. There is nothing to warrant such a position; and no reason does exist why our commercial rights should have been better secured than the other various rights and interests embraced by that charter of our independence. In the specific grants of powers, Congress has the authority to regulate commerce with foreign nations, with the several States, and with the Indian tribes; not giving preference in language to foreign over State and domestic commerce. I will admit, sir, that our commercial rights formed one of the primary considerations--not more primary than the rights of agriculture and manufactures, nor the rights of property, the rights of persons, protection from foreign invasion and aggression, or from internal foes. These rights were equally important, and not less the considerations which strengthened the bonds of the Union. And if any consideration had a preference, it arose from considerations of peace and war. When I look into the preamble of the constitution, which to be sure is no specific grant of power, but is an interpretation of the objects of that great charter of our Union, I find it was to establish justice, insure domestic tranquillity, provide for the common defence and general welfare, and to secure the blessings of liberty, that the constitution was adopted; and although maritime commerce has only a co-equal right with all others, still, the greatest means and resources of the Government have been directed to its protection. And still it would seem, if we do not ruin the nation by the establishment of a navy, we wish to make encroachments upon commerce, to damp the commercial spirit. And this we are told in the face of facts which appear upon record, and in the face of every expensive war measure now taken and adopted. Sir, in a colonial state, it was a duty upon tea that was the immediate cause of a war, which was bloody indeed, and continued upwards of seven years; a conflict which has no parallel in history as to its beginning and termination. And at this moment, violations of our neutral rights upon the ocean is a primary cause why we are about to wage a second war with Great Britain; and still we are gravely told that we are unwilling to protect commerce, and that we are ready to abandon it, because we will not vote away the substance of the people upon a system of policy which must ruin the nation if not crushed in its infancy. The constitution says, Congress shall have the power to provide and maintain a navy. And this has been read. So has it authorized Congress to raise and support armies, to lay and collect taxes, and declare war; but the constitution does not fix the limit of these powers, and all are liable to abuse. And the convention did not suppose that any Congress would so far abuse these powers as to keep either a standing army in time of peace, which must endanger the liberties of the people, or a permanent navy, that would involve us in continual wars with other nations, and permanent taxes upon the people. A reasonable peace establishment to protect our maritime and territorial frontier, consistent with strict economy, must have been contemplated; and this force, naval and military, we have maintained; and we are as secure as a nation can expect to be from savages or a maritime foe. There would be as much reason why we should keep in pay five hundred thousand regular troops in time of peace, as your twenty vessels of seventy-four guns and your forty frigates, in addition to our present naval force. In every point of view, therefore, a permanent navy is as injurious to the country as a standing army. One will endanger your liberties by conquest, and the other by wars with foreign nations. But I am asked, how will you contend with a maritime nation, without a navy? Sir, that question is as easily answered as the first. I will ask, how we succeeded in the Revolutionary war? We were without any security upon our seacoast, and still we succeeded. But to be more specific--I would grant letters of marque and reprisal, and authorize privateering. Give scope to individual enterprise, to destroy the commerce of the enemy--which can be done effectually. I would fortify our seaport towns; station our gunboats and frigates along our coast, to protect us at home. And in this way I would in war avenge the infractions of our neutral rights. Mr. LOWNDES.--Mr. Speaker, in one opinion expressed by the honorable gentleman last up, (Mr. JOHNSON,) I can concur. The constitution was not formed for the exclusive protection of commerce, but for the defence of all the interests of the United States. These are to be protected by the whole force of the nation. If he had adhered throughout his speech to this opinion, the question would have been narrowed to the inquiry, by what means shall commerce be protected? He has asserted the adequacy to this purpose of the naval force which we now possess. This is, indeed, a different view of the subject from that which was taken by his honorable colleague. We were told but yesterday, that the undivided exertions of the United States could not give them a navy large enough to be useful. To-day the five frigates which we have in commission are thought sufficient if properly employed, to redress all our injuries. The death of Pierce might have been revenged, and the disgrace of the Chesapeake obliterated, if these five frigates had been sent a cruising. We did not want force, but spirit to employ it. Can it be necessary gravely to answer these assertions? May I not trust their confutation to that general knowledge of the subject which every member of the House possesses? Must we inquire what number of British vessels have been lately stationed near our coast, or what greater number it is in the power of England to station there? But, although the honorable gentleman from Kentucky is determined to defend commerce by some method which he will not fully disclose, his arguments like those of my honorable friend from Pennsylvania, appeared designed to show that commerce was not worth defending. After the full discussion of this subject, produced by the report of the Committee of Foreign Relations, and the debates at every stage of the bill for raising an additional army, the House might have supposed that this question was at last dismissed. I hope, however, to be excused for remarking that both these gentlemen have considered the profits of commerce as confined to the merchant. They have forgotten that commerce implies a change of commodities, in which the merchant is only an intermediate agent. He derives, indeed, a profit from the transaction--but so must the seller and the buyer, the grower and the consumer, or they would not engage in it. So must all those who are supported by their own industry in commercial cities--the clerk, the artisan, the common laborer. But my honorable friend from Pennsylvania says that Mr. Pitt estimated the profits of commerce in England at only twelve millions for a year, in which the naval expense was fourteen or sixteen millions. I suppose this estimate to have been made in relation to the income tax, and it obviously must have referred only to the profits of merchants. The profits of merchants may be computed, but no sober financier would attempt to compute the entire profits of commerce. If it be desirable to form, not, indeed, an estimate, but some conception of its importance, let my honorable friend compute the value of New York, where a few square feet of land are an estate, and then compare it with the value of the same extent of ground for the purposes of the plough. But, is it in this nation, and at this time, that it can be supposed that the profits of commerce are confined to the merchant? Your trade was, a few years ago, unrestrained and flourishing--did it not enrich the most distant parts of your country? It has since been plundered and confined. Does not the industry of the country languish? Is not the income of every man impaired? If commerce were destroyed, the mercantile class, indeed, could exist no longer; but the merchant, the rich capitalist, at least, would individually suffer less than any other part of the community, because, while their property would become unproductive, the value of money would rise rather than fall. The value of commerce, then, has been strangely misunderstood by these gentlemen, who suppose that they have calculated it so very accurately. But whatever may be its value, you have already determined to defend it. Considerations of expense are not, indeed, to be neglected. We must employ, in the prosecution of the war, the cheapest and most efficacious instruments of hostility which we can obtain. But the arguments of the honorable gentlemen on the other side, are almost all of them directed against the war rather than the navy. It would be absurd, say they, to protect commerce by a navy, which should cost more than that commerce is worth. It must yet be more absurd, then, to protect it by an army which costs much more than the navy. In the comparison of the expenses and of the efficiency of an army and navy, instituted by my colleague, there is nothing invidious. The army is acknowledged to be necessary. It has had our votes. But, from the acknowledged propriety of raising the army, was fairly inferred the propriety of employing a navy, if it should be proved to be less expensive in proportion to its probable efficacy. War, and all its operations and all its instruments, must be expensive. It is difficult to determine upon the expediency of employing any of these instruments, except by comparing it with some other. To compute the result of this comparison, the honorable gentlemen on the other side must show, not that it is more expensive to maintain a navy than to be without one--not that it is more expensive to go to war than to remain at peace, (these propositions they, perhaps, have proved,) but that the objects proposed to be attained by the navy may be better or more cheaply attained in some other way. My honorable friend from Pennsylvania, then, in determining not to follow my colleague in the investigation of the comparative expense of different kinds of force, must have determined to avoid the best, and, indeed, the only method of examination from which a just conclusion could be deduced. The honorable gentleman from Kentucky, however, who spoke yesterday, offered objections to a navy, which, if they were well founded, would supersede all further reasoning and calculation. He opposes a navy now--he will oppose it for ever. It would produce no possible good and all possible evil. It would infallibly destroy the constitution. Will the honorable gentleman tell us why? how? He sees the danger clearly? Will he explain it? An ambitious General might corrupt his army, and seize the Capitol--but will an Admiral reduce us to subjection by bringing his ships up the Potomac? The strongest recommendation of a navy in free Governments has hitherto been supposed to be that it was capable of defending but not of enslaving its country. The honorable gentleman has discovered that this is a vulgar error. A navy is really much more dangerous than an army to public liberty. He voted for the army and expressed no fears for the constitution. But a navy would infallibly terminate in aristocracy and monarchy. All this may be very true. But are we unreasonable in expecting, before we give up the old opinion, to hear some argument in favor of the new one? The honorable gentleman has asserted his propositions very distinctly. We complain only that he has not proved them. Yet there is a view in which this question of a navy is, indeed, closely connected with the constitution. That constitution was formed by the union of independent States, that the strength of the whole might be employed for the protection of every part. The States were not ignorant of the value of those rights which they surrendered to the General Government, but they expected a compensation for their relinquishment in the increased power which would be employed for their defence. Suppose this expectation disappointed--suppose the harbor of New York blockaded by two seventy-fours? The commerce of that city, which exists only by commerce, destroyed? The protection of the General Government claimed? Your whole navy could not drive these English seventy-fours from their station. Would the brave and enterprising people of New York consent to see their capital emptied of its inhabitants, and their whole country beggared by so contemptible a force? Their own exertions would raise a fleet which would drive off the enemy and restore their city to its owners. But, when a single State shall find herself able to raise a greater fleet than the General Government can or will employ for her defence, can it be expected that she shall consider that Government as essential to her safety--as entitled to her obedience? I repeat that the Federal Constitution was instituted by the States, that the strength of the whole might be combined for the protection of any part which should be attacked. But what is the nature of the defence which one of our large States may be supposed interested to obtain from the General Government? Is it a land force? We can scarcely expect an attack on land, to repel which the militia of New York or Massachusetts would be unequal. Were either of these States attacked, the General Government would protect her by ordering out her own militia. To render the Union permanent, you must render it the interest of all the States, the large as well as the small, to maintain it; you must show them that it will provide, not an army which they can have without it, but what without it they cannot have--an adequate navy. The honorable gentleman who anticipates the destruction of the constitution, unless we shall neglect one of the great interests which it was intended to protect, considers the English Orders in Council as leaving our institutions firm and untouched. Regulations, the effect of which is to give to a foreign power the complete disposition of the property of a large class of our people, are it seems in their political result innocent. Although every citizen who has property on the ocean become dependent on the English Ministry, become their subject, our liberty and independence are (we are told) unimpaired. But let a navy be raised--let the Government which expects obedience provide protection, and the constitution perishes! But we have been referred particularly by my honorable friend from Pennsylvania to the experience of the world, as having already decided the question which we are now discussing. It seems that Venice and Genoa, and every other naval power which can be named, have all furnished abundant proof of the ruinous effects which such a force is calculated to produce. Sir, the assertion is new. I do not pretend to an intimate acquaintance with the histories of those nations, but I have hitherto believed that the first great shock which the power of Venice received, was given by the League of Cambray--a league formed to repress her ambition, not of maritime, but of territorial aggrandizement. But, whilst Venice has lost her independence, after maintaining it for five or six centuries, may I ask my honorable friend whether the States of Italy, which were never oppressed by fleets, had enjoyed a longer term of prosperity and freedom? As to Genoa--her naval power, her independence and glory, rose and sunk with the same man--Doria. But Holland, says the gentleman from Kentucky, affords an example of a nation, whose commerce flourished greatly before it had a navy, and decayed while her navy continued powerful. If there ever were a people, whose naval power has been employed to protect and almost to create their commerce, it is the Dutch. They fought their way at the same time to trade in the East Indies and America, and to national independence in Europe. The decay of their trade is to be attributed to the development of the resources of other nations; to the navigation act of England; and the similar measures adopted by other powers. As to France--the period of her greatest financial prosperity probably coincided with that of her greatest naval power; both were due to the administration of Colbert. But the evils of a navy (gentlemen tell us) have been concentrated in the case of England. With all her fleets she is destined soon to lose her independence. The expense of those fleets has crushed the industry of her subjects, and must soon reduce her to national bankruptcy. Let us suppose that these gentlemen, who have been so much mistaken in regard to the past, may be more accurate in their narrative of the future. Still England will have owed to her fleets her redemption from invasion for ages past. While every other considerable nation of Europe has been bankrupt over and over again, she is not yet bankrupt. While nearly every other Government of Europe has been overset, hers yet rides out the storm. Should England fall to-morrow, it should seem impossible to deny that her navy will have prolonged her independence for at least two centuries. My honorable colleague has calculated the expense of building and maintaining a navy of 12 ships-of-the-line and 20 frigates, and has explained the principles on which his calculations have been founded. The estimate of the gentleman from Pennsylvania can hardly be considered, after the error which has been remarked, as impugning those calculations. I have not myself attempted to estimate the probable expense of maintaining 12 ships-of-the-line and 20 frigates with any precision, but I cannot doubt the fairness of the rule which deduces it from the expense of such a force to England. This is the rule which I understood my colleague to have employed. It has not been disputed in debate; it has been in conversation. Many gentlemen have objected to an estimate of the expenses of a navy during war, in which (as they suppose) no allowance is made for the peculiar expenses which war involves. To have all our ships safe at the end of the contest is observed to be rather a sanguine expectation. But if the rate of expense in the estimate of my colleague were deduced from the rate of English expense during war, these objections must be altogether groundless. Now, it _was_ deduced from the expense which is found sufficient to maintain the English Navy in a state of unimpaired strength during war. The English expense, from which it was inferred, included the charge of docks and navy-yards, of the repair of old ships and of the building of new ones. It included pensions to their officers, and even the support of the prisoners taken from their enemies. I have on my table a detailed account of the English naval expenditure for a year of the last war. The whole amount was about twelve millions and a half, and of this sum fully four millions and a half were applied to what may be considered the contingent expenses of the navy. Now, is there any reason to suppose that the contingent expenses of our navy would be greater in proportion to its force than this? And if not greater, has not an allowance been made for the capture of some of our ships, or, in other words, for the building of new ones? It is true, that from the superiority of English sailors to their present enemies, England loses little by capture, and, it may be supposed, that from the greater frequency and severity of our conflicts when we shall be engaged in war against her, our contingent expenses may be greater in proportion to the number of our ships then hers. But there are many expenses to which she is necessarily subject, from which we shall be exempt. I will instance that resulting from blockading squadrons, and that from repairs in colonial and foreign ports. These can appear inconsiderable to no man who has given his attention in any degree to the subject. Naval men I believe would not contradict me, if I were to state the expense of a ship employed in a strict blockade, and particularly during the winter months, as fully double that of a ship engaged in ordinary service. In fact, England finds the expense too great for her finances, and has been obliged, in some measure, to give up the practice. The other article of expenditure to which I have referred, I shall not attempt to estimate with any precision. It must, however, be obvious to every man, that the ships of war of England must frequently be repaired and refitted in distant countries. In these the most scrupulous fidelity and economy on the part of her officers cannot prevent the expense from being frequently extravagant. The most salutary regulations and most provident instructions on the part of the Administration at home cannot prevent her officers from being sometimes careless and fraudulent. I recollect an instance of the enormous expense involved in the distant services required from the British Navy, which I cannot pretend to state with accuracy, but in which I hope not to be substantially wrong. Sir Home Popham (a distinguished officer in the English Navy) had under his command in the last war two or three frigates in the East Indies. They had left England in good condition, and their repairs for two or three years, and the supply of the different articles of equipment which they occasionally required, exceeded, I believe, the prime cost of the vessels themselves. These two items of expenditure, blockading squadrons, and repairs in distant countries, (to neither of which an American Navy would be liable,) will be acknowledged, I think, to justify the conclusion, that the contingent expenses of the English Navy must be as great in proportion to its force as ours would be in war--and therefore that the rule employed in the calculations of my colleague was correct. But our resources for the equipment of a navy appear to the honorable gentlemen on the other side, as deficient in respect to men and money. Sailors in this country cannot be obtained in sufficient numbers without impressment. It is not necessary, sir, to inquire whether for the defence of their peculiar rights the services of a marine militia may not be required. There is no reason to doubt our being able to procure the voluntary services of our seamen. If we shall at any time be engaged in a war (like that with France in 1798) which shall leave the greater part of our trade unaffected, the wages of sailors will, indeed, be high, but the number required will be small and the Government can afford high wages. In a war of a different character--against a nation powerful at sea--your sailors will be thrown out of employment and their wages will be necessarily low. But gentlemen object to this reasoning on the supposition that in such a case our sailors would all engage in privateers. The notion that in any war there will be a demand in this country for more than thirty thousand sailors for privateers is surely an extravagant one. But it has been shown by my colleague that in a war which should diminish our trade by one-half, (and a war requiring any great naval exertion would necessarily do this,) thirty or forty thousand seamen may be employed in privateers, and a sufficient number would remain for your public ships. But are not your privateers as much a part of the naval force of the nation as your ships of war? It has been said, indeed, that they are the more useful part. Now, if the Government should believe (what neither sober reflection nor the experience of other nations can permit it to doubt) that this part of your force cannot be in any great degree serviceable unless supported by a fleet--then surely a limitation to its extent, which would be necessary even to the interest of its owners, cannot fairly be objected to. The law just passed for raising twenty-five thousand men, provides, I think, for only one regiment of cavalry. Now, it is very possible that a much larger proportion of the twenty-five thousand men that can be accommodated in this regiment, may choose to go to Canada on horseback. They must be disappointed, and either not go into the army at all, or go into the service which they least desire. No man has hitherto denounced the act as on this account tyrannical and oppressive. Yet this case seems to me a true parallel to the other. In the naval, as in the military service, the interest of the country requires the employment of different sorts of force; and the object may be attained with equal fairness in both services by limiting the amount of the favorite force. Mr. LAW said: Being in favor of the bill now under consideration, I beg leave to express my sentiments, and state the reasons in support of my opinion; and the only pledge I shall offer to the House, for their attention, is, that I shall not occupy much of their time. This bill, sir, embraces two objects--one relates to the repairs and equipment of the ships of the United States now out of service--the other contemplates the building of ten additional frigates, and laying the foundation of a new Naval Establishment. The view which I entertain of this subject, does not arise from its connection with that system which grows out of what is called the present crisis, or putting the nation in armor for war, as reported by the Committee of Foreign Relations; but from a conviction, that, as an abstract question or matter of general policy, I deem it for the interest and security of the United States, to begin the establishment of a Navy, to be perpetuated and extended hereafter--and, because I believe it may be accomplished, to the extent at present proposed, from the ordinary means we ought to possess, without adding any new burdens on the citizens. In order to decide whether it is for the interest of the United States we must examine and see how it is connected with the great and essential interest of the country. The basis of our national wealth is agriculture; the real substance of the nation is drawn from the earth. This arises from the great and extensive territory which we possess, thinly settled, low in price, of an excellent soil, capable, from its fertility and variety of climes, of affording produce of every kind, in the greatest abundance. The surplus of all is wanted in other countries, where nature has been less bountiful; and it must be a great while before the labor of our citizens can be diverted extensively into other channels--I mean manufactures. This is a condition in which we ought to rejoice for the causes, which bind us in this necessity, are those which tend to preserve the morals, the happiness, and the independence of the nation. And until our lands are taken up, and population becomes redundant, the basis of our national wealth must be the farming interest. But, sir, in a country so blessed by nature; where the inhabitants have the greatest stimulus to industry, the fruits of their labor secured by just and equal laws; where the property cannot be taken from the owner without his consent, there will be a vast surplus, beyond what the consumption of the country requires. Hence, commerce springs up as the daughter and handmaid of agriculture. Without commerce, agriculture would languish. With it, wealth is consolidated, and industry promoted. It diffuses its benign influence, discoverable in the splendid and delightful improvements, which rejoice the eye of the traveller, throughout the country. And it is as unnatural for the farming interest to oppress the commercial, as it is for the parent to abandon its offspring. They mutually cherish and support each other; and, by natural sympathy, must be affected by the checks and disorders which each may receive. But commerce must be protected. It cannot protect itself against force. Being carried on abroad on the ocean, (for I am speaking of foreign commerce,) it is subject to annoyance, interruption, and hazard. We must pass the common highway of nations to get to a market; and in this route, the weak and defenceless must, and always will be the sport and prey of the strong and violent, whom they meet in the way. From the wretched state of those nations with whom we have intercourse, we, from weakness, must fall victims to their violence. This is an evil which we shall always experience as a neutral, coming in collision with belligerents. Shall we then abandon commerce, or shall we strive to support it? It will be for the interest of the country to support it, if possible; for if we abandon it, the evil will recoil on the agricultural part, who, no longer than foreign commerce is supported, can find a vent for their surplus; and without a vent for the surplus, a bare competency might be endangered. Internal commerce would always fail, for that, being but a stream from foreign commerce, must dry when the fountain from whence it issues fails. Enterprise ceases, and languor and poverty ensue. It is then for the interest of the nation to cherish commerce. But how can this be done? Will a navy have this effect? I think it will. Indeed, if the little navy which was commenced some years ago, had been supported and increased as it might have been without any difficulty, we might, and in all probability should, have avoided our present calamities. We are now the defenceless prey of both France and England; deprived of the common rights of nations and citizens of the world. Will it then be asked, shall we not go to war and fight our way? I have already recorded my negative on the several questions preparatory to that step, and I am decidedly against going to war. We have not the means necessary, and unsuccessful resistance will only make our condition worse. I verily believe, if this nation had fostered our infant navy, from the time it was commenced, and had not, by a strange infatuation, abandoned and neglected it, it would now have been too important to be despised, by either France or England. Our prosperity would have continued. Our strength would have been dreaded, and our friendship courted by both nations. While they have been contending for the mastery, we, with such naval force as we ought to have had, and a strict course of neutrality, might have pursued a lawful and gainful trade. We might have had a perpetual revenue of sixteen millions, instead of the pittance now received at the Treasury. I believe, that with the navy we might have had, and a correct strict neutral course, there would have been neither Berlin and Milan Decrees, nor Orders in Council, to annoy our lawful commerce. Mr. ROBERTS observed, that there appeared to be a disposition in the committee to take the question on the filling the blank in the first section without further debate. As he could not vote for appropriating $480,000 for the repair of the vessels of war unfit for service, it would perhaps be the most proper time to submit his opinions. I have not, Mr. Chairman, said he been a listless hearer of the very ingenious arguments advanced by gentlemen in favor of the report. He had, however, been so unfortunate as to be more confirmed in his inclination to vote against the bill, from attentively weighing these arguments. The select committee in their report (for they had reported specially as well as by bill) have said, with oracular confidence, that this country is inevitably destined to become a naval power. He had not, with them, become a fatalist. Though he was disposed to claim a high destiny for his country, he did not believe that destiny was yet immutably fixed. He, however, believed the question now to be decided must have an influence on that destiny, that might at an early day, if decided affirmatively, obliterate our happy civil institutions; if negatively, preserve them long the best blessings of posterity. Gentlemen who have advocated a naval establishment, have chosen to consider this bill and report as the furtherance of a system already in existence, and that, however short of their wishes the committee may be disposed to go, they stand prepared to view whatever might be done to augment the naval force as an evidence of assent to their system. Mr. R. said at one time he had inclined to vote for the appropriation of a sum to equip such of the vessels now out of service as might be found worthy of refittal. But on discovering it would be considered as an acknowledgment that a navy was proper in the sense it had been brought into view by the committee, and doubting, on better consideration, whether there was not great likelihood the money would be worse applied in repairing old, than in building new vessels, and feeling a conviction that if these vessels should be deemed worthy of repair, they could not be brought into action in that exigence of war when they could be useful, as in that case land defence must be resorted to, and the consequent expense incurred, he should feel it his duty to vote against this appropriation. It has been observed that the constitution has invested Congress with power to regulate commerce, to provide and maintain a navy, &c. There is nothing, said Mr. R., imperative in this. It was necessary in a general grant of powers to insert many items to be left to the sound discretion of Congress, to use or not to use. Soon after the Government came into operation, it became a favorite object with one set of politicians to form a navy. On the occasion of our commerce being depredated upon by the Barbary corsairs, the question first came up. It became a matter of deliberation whether a peace should be purchased of them with money and presents; whether some European power should be subsidized to keep a few frigates on that station, or whether a naval force should be equipped for the purpose (as alleged) of enabling the President to negotiate to better effect. The party with whom I have always found it my duty to act, said Mr. R., opposed, on that occasion, the commencement of a navy system, when it was invited under circumstances so specious. They were, however, in the minority. The ships of war were voted--with what effect on the Algerines, he did not stop to inquire. If this opposition to the commencement of a Naval Establishment was wrong in the minority, their successors ought not to follow them; but if it should be found that they were right, the ground ought never to be quitted. The question of increasing the navy was again discussed in the celebrated times of '98-9. The collisions with France had raised the war fever very high. A navy was vociferously contended for as the most efficient means of defence. It was when things were in this state, that the President, in his reply to the Marine Society of Boston, who had with much fervor tendered him their approbation of his measures, hoped to see the wooden walls of America considered as her best defence. Because Athens, when she was invaded by the hosts of Xerxes, had chosen to interpret the oracle that promised her safety in wooden walls, rationally, America must take the same course, however dissimilarly situated. The people of Attica, inhabiting a circumscribed territory, found safety in their fleet, and they could have found it nowhere else. But such cannot be the case with America. Even the hosts of Xerxes could not make it necessary for the American people to quit their territory--the figure would not hold. On this occasion, too, the Republican party consistently opposed a navy; strange blindness and obstinacy, if they were not sustained by reason as well as principle. On this occasion, the supporters of a navy system were a majority in council. For a moment they succeeded with their measures. But the public councils were soon filled by the people with men of other minds, and the question was put to rest. Gentlemen have considered this subject on its general principles and remote consequences. In this point of view, said Mr. R., it presents a wide field for reflection. The Chairman (Mr. CHEVES) has complained he has had to meet this subject encumbered with much error and many prejudices; among which is the idea that a naval system is prejudicial to civil liberty. The opposers of a navy, with an air of no small triumph, are called upon to show how a system of maritime power would endanger the freedom of our country. It has been said, a military chieftain, by an easy transition, may become a civil ruler, and that the commander of an army has often become a despot, while no such event could happen from a naval commander, as such an office gave no power on _terra firma_. If we look a little deeper into the subject, we shall find we have as much to fear, and even more, from a naval than a military power. The latter can only be kept in time of war, and for comparatively but short periods; at a time too, when the public spirit is awakened and ready to oppose encroachment. The chair of rule may possibly be gained by a military chief; but an attempt on the public liberty has a much greater chance to fail. Evils of this sort can only take place on very rare contingency; but the ruin of the public liberty can hardly fail to be a consequence of the establishment of a naval power. History proves to us that maritime power has always excited national ambition to a spirit of conquest and plunder. A naval power will seek colonies and ports in distant places. The chance, nay, the certainty, of collisions with other nations, is multiplied, and a corruption of morals is produced, that cannot fail to make the first Government on earth a tyranny, by a course of events that the patriot can neither prevent nor divert to other consequences. A short time after Athens had found safety in her wooden walls, one of her statesmen proposed she should burn the fleets of her neighbors, that she might thereby be rendered mistress of Greece. This project the virtue of the people resisted; but that virtue soon gave way in the expedition to the Cyclades, where her navy committed acts of violence that must indelibly fix the stain of the blackest perfidy and cruelty on the Athenian character. What could be a more unprovoked act of aggression than her crusade against Syracuse, a crime that visited her with a declension of power from which she never recovered? For a nation to believe her destinies fixed, is in a great measure to fix them. Nothing, perhaps, contributed more to make Rome the mistress of the world, than the oracles that promised it. Her heroes and statesmen were stimulated thereby to fulfil her destiny. The maritime supremacy of Britain is, perhaps, owing as much to the belief that she is the destined Queen of the waters, as to any other cause. Though such operations be calculated to bring about astonishing effects, how unfortunate is it when a nation's eyes are thus directed to improper attainments--it becomes a source of incalculable evil. Athens and Rome were the victims of such a policy, as Britain is at this time. I fervently hope, said Mr. R., for a better destiny for our beloved country. Rome and Carthage were both great maritime powers; it was not in Lybia and Italy they began to contend for superiority, but in Sicily and Iberia. The conflicts thence arising brought terror to the gates of Rome, and laid Carthage in ashes. The abuse of maritime power in both those States changed the free features of the government, and left a dreary despotism in their stead. A naval victory secured to the second Cæsar the rule of the mistress of the world. In later times, we have been told, said Mr. R., the declension of maritime States has been due to other causes than their Naval Establishments. In some instances it may have been so. When the strength and power of a State has arisen entirely from the profits of commerce, when that commerce has taken another course, the transitory splendor it has built up has vanished. Venice was an example of this. The commerce of the East caused her to rise out of the circumscribed and marshy Islands at the bottom of the Adriatic, the proud Mistress of the Waves. When the Cape of Good Hope had been doubled by the Portuguese, her commercial advantages failed. She sunk from the conqueror of the Eastern Empire, to a mere city of Italy and Portugal; a narrow territory, by the same commerce, assumed the first rank among the nations of the world. A naval power may serve sometimes to extend commerce to wider limits; but it can by no means control it with certainty to channels through which nature, and often the policy of other nations, bid it to flow. What is the state of British commerce at this time? The rupture of the peace of Amiens did not arise from Britain having received injuries from France after the cessation of hostilities. The new war was a commercial one. The British Cabinet saw, in a state of peace, France would not be unmindful of her commercial interests. The intelligence, the enterprise, and population, and the resources of France, all indicated that she would at least divide successfully the profits of commerce with her rival. The naval power of Britain giving her the command of the sea, she could oppose only with effect the growing commerce of her neighbor in a state of war. This step of British policy imposed on the ruler of France the necessity of changing the channels of commerce. In this way he has aimed a blow at the vitals of her strength, which her tremendous naval power neither enables her to avert nor lessen its force. Her marine puts the trident into her hands, but she can no longer shake the earth. Her monopolizing spirit has sealed the Continent of Europe against her, and interdicted her commerce with America. She has reduced the ocean almost to a desert; and she seems hastening to that destiny which has generally attended her predecessors in naval power through her ambition to rule the waves. Gentlemen propose to protect commerce on this side the Gulf Stream, yet admit if our vessels are despoiled on the Indian Ocean, we must apply retaliation in the West Indies. The Gulf Stream limitation is at once given up; a new expedition to the Cyclades is in that case to take place. Begin your conquest in the West Indies, and you must increase your navy to acquire and defend them. It is at once an admission that naval power must be used more for ambition than the protection of commerce and our territorial waters. But, what is worse, as you acquire colonies and ships you must create armies. The hands of the Executive, restricted and elective as it is, in the United States, became thence armed with a sceptre formidable indeed, and the more so as it acquires this strength without producing the shock to public feeling which the seizure of power by a military leader will always excite. It has been said, (said Mr. R.,) that the existence of Great Britain hung upon her navy in the contest in which she is now engaged. If her fate hangs suspended by her naval power, she owes her peril to that source. Without her maritime strength, would she have aspired to balance the scales of power on the Continent? Would she have become a party to the infamous conspiracy of Pilnitz? Would she have wantonly plotted the dismemberment of France? Would she have broken the peace of Amiens whence her present dangers arise? Certainly not. On the article of cost, said Mr. R., it is of little importance whether the army or navy of Great Britain is most burdensome on her finances, though it has been dwelt upon with particular emphasis, nor whether an army be more expensive in every case, than a navy. Armies are a necessary consequence of navies. Has not the British army increased with equal pace with her navy? The humane mind, said Mr. R., cannot contemplate without pain, that from naval power have flown the most copious streams of human misery. The plunder of half the world, with immense advantages in addition, has not sustained the British navy. A debt has been accumulated that almost baffles the power of figures to estimate. But debt, and a prospect of Government insolvency at home, are of much less account than the wrongs this navy has wrought on the society of nations. And yet it is this Government that is held up to Republican America as a model for imitation. Need I remind you, said Mr. R., of the millions of victims sacrificed to commercial cupidity on the plains of Hindostan, by means of this navy? A population, thrice as great as that of the British Isles, has been exterminated in this devoted region, within comparatively but a few years, by mercantile rapacity. Colonel Dowe informs us, that the wealth of one of the cities of this wretched country had whetted the avarice of Clive and his associates, and that an offer was made to the Government to pay the public debt for permission to sack it. It was too gross an act of infamy to assent to, and the adventurers obtained their end by other means. A famine and pestilence was substituted for the bayonet, and the spoils of the devoted city glutted the hands of rapine. In this exploit, a shoe-black divided his £200,000. Need I remind you, said Mr. R., that the population of Africa has been drained, to groan out a wretched existence in the West India colonies, to prop up this naval and commercial power, or that the remotest corners of every sea have been visited with the scourge of blood and desolation for the same purpose? On general principles, does not past experience afford sufficient warning to these States to avoid those shoals on which so many nations have been wrecked? Mr. Chairman, under no view which I have been able to take of this subject, considering it either as the furtherance of a system of naval power, to be expanded with the growing strength of the Union to gigantic size, or that it is a proper time for providing a temporary increase of naval force, can I agree, said Mr. R., to the bill on your table. When Mr. ROBERTS had concluded, the committee rose, and had leave to sit again. WEDNESDAY, January 22. Another member, to wit, WILLIAM M. RICHARDSON, from Massachusetts, appeared, produced his credentials, was qualified, and took his seat. _Naval Establishment._ The House again went into a Committee of the Whole on the bill concerning the Navy. The question on filling up the blank in the section which provides for repairing the vessels on hand, with four hundred and eighty thousand dollars, was carried by a large majority. The next section provides for the building of ---- additional frigates. Mr. CLAY (the Speaker) rose to present his views on the bill before the committee. He said that as he did not precisely agree in opinion with any gentleman who had spoken, he should take the liberty of detaining the committee a few moments while he offered to their attention some observations. He was highly gratified with the temper and ability with which the discussion had been hitherto conducted. It was honorable to the House, and, he trusted, would continue to be manifested on many future occasions. On this interesting topic a diversity of opinion has existed almost ever since the adoption of the present Government. On the one hand there appeared to him to have been attempts made to precipitate the nation into all the evils of naval extravagance, which had been productive of so much mischief in other countries; and, on the other, strongly feeling this mischief, there has existed an unreasonable prejudice against providing such a competent naval protection for our commercial and maritime rights as is demanded by their importance, and as the increased resources of the country amply justify. The attention of Congress has been invited to this subject by the President in his Message delivered at the opening of the session. Indeed, had it been wholly neglected by the Chief Magistrate, from the critical situation of the country, and nature of the rights proposed to be vindicated, it must have pressed itself upon our attention. But, said Mr. C., the President, in his Message, observes: "Your attention will, of course, be drawn to such provisions on the subject of our naval force as may be required for the service to which it is best adapted. I submit to Congress the seasonableness also of an authority to augment the stock of such materials as are imperishable in their nature, or may not at once be attainable." The President, by this recommendation, clearly intimates an opinion that the naval force of this country is capable of producing some effect; and the propriety of laying up imperishable materials was no doubt suggested for the purpose of making additions to the navy, as convenience and exigencies might direct. It appeared to Mr. C. a little extraordinary that so much, as it seemed to him, unreasonable jealousy should exist against the Naval Establishment. If, said he, we look back to the period of the formation of the constitution, it will be found that no such jealousy was then excited. In placing the physical force of the nation at the disposal of Congress, the Convention manifested much greater apprehension of abuse in the power given to raise armies than in that to provide a navy. In reference to the Navy, Congress is put under no restrictions; but with respect to the Army--that description of force which has been so often employed to subvert the liberties of mankind--they are subjected to limitations, designed to prevent the abuse of this dangerous power. But it was not his intention to detain the committee by a discussion on the comparative utility and safety of these two kinds of force. He would, however, be indulged in saying, that he thought gentlemen had wholly failed in maintaining the position they had assumed, that the fall of maritime powers was attributable to their navies. They have told you, indeed, that Carthage, Genoa, Venice, and other nations, had navies, and, notwithstanding, were finally destroyed. But have they shown, by a train of argument, that their overthrow was, in any degree, ascribable to their maritime greatness? Have they attempted even to show that there exists in the nature of this power a necessary tendency to destroy the nation using it? Assertion is substituted for argument; inferences not authorized by historical facts are arbitrarily drawn; things wholly unconnected with each other are associated together--a very logical mode of reasoning! In the same way he could demonstrate how idle and absurd our attachments are to freedom itself. He might say, for example, that Greece and Rome had forms of free government, and that they no longer exist; and deducing their fall from their devotion to liberty, the conclusion in favor of despotism would very satisfactorily follow! He demanded what there is in the nature and construction of maritime power to excite the fears that have been indulged? Do gentlemen really apprehend that a body of seamen will abandon their proper element, and, placing themselves under an aspiring chief, will erect a throne to his ambition? Will they deign to listen to the voice of history, and learn how chimerical are their apprehensions? But the source of alarm is in ourselves. Gentlemen fear that if we provide a marine it will produce collisions with foreign nations--plunge us into war, and ultimately overturn the constitution of the country. Sir, if you wish to avoid foreign collision you had better abandon the ocean; surrender all your commerce; give up all your prosperity. It is the thing protected, not the instrument of protection, that involves you in war. Commerce engenders collision, collision war, and war, the argument supposes, leads to despotism. Would the counsels be deemed wise, of that statesman who should recommend that the nation should be unarmed--that the art of war, the martial spirit, and martial exercises, should be prohibited--and that the great body of the people should be taught that national happiness was to be found in perpetual peace alone? No, sir. And yet every argument in favor of a power of protection on land applies, in some degree, to a power of protection on the sea. Undoubtedly a commerce void of naval protection is more exposed to rapacity than a guarded commerce; and if we wish to invite the continuance of the old, or enaction of new unjust edicts, let us refrain from all exertion upon that element where they operate, and where, in the end, they must be resisted. For his part, Mr. C. said, he did not allow himself to be alarmed by those apprehensions of maritime power which appeared to agitate other gentlemen. In the nature of our Government he beheld abundant security against abuse. He would be unwilling to tax the land to support the rights of the sea, and was for drawing from the sea itself the resources with which its violated freedom should at all times be vindicated. Whilst this principle is adhered to, there will be no danger of running into the folly and extravagance which so much alarms gentlemen; and whenever it is abandoned--whenever Congress shall lay burdensome taxes to augment the Navy beyond what may be authorized by the increased wealth, and demanded by the exigencies of the country, the people will interpose, and, removing their unworthy representatives, apply the appropriate corrective. Mr. C. could not, then, see any just ground of dread in the nature of naval power. It was, on the contrary, free from the evils attendant upon standing armies. And, the genius of our institutions--the great representative principle, in the practical enjoyment of which we are so eminently distinguished--afforded the best guarantee against the ambition and wasteful extravagance of Government. What maritime strength is it expedient to provide for the United States? In considering this subject, three different degrees of naval power present themselves. In the first place, such a force as would be capable of contending with that which any other nation is able to bring on the ocean--a force that, boldly scouring every sea, would challenge to combat the fleets of other powers, however great. He admitted it was impossible at this time, perhaps it never would be desirable for this country to establish so extensive a Navy. Indeed, he should consider it as madness in the extreme in this Government to attempt to provide a Navy capable to cope with the fleets of Great Britain, wherever they might be met. The next species of naval power to which he would advert, is that which, without adventuring into distant seas, and keeping generally in our own harbors, and on our coasts, would be competent to beat off any squadron which might be attempted to be permanently stationed in our waters. His friends from South Carolina (Messrs. CHEVES and LOWNDES) had satisfactorily shown that, to effect this object, a force equivalent only to one-third of that which the maintenance of such squadron must require would be sufficient. That if, for example, England should determine to station permanently upon our coast a squadron of twelve ships-of-the-line, it would require for this service thirty-six ships-of-the line, one-third in port repairing, one-third on the passage, and one-third on the station. But that is a force which it has been shown that even England, with her boasted Navy, could not spare for the American service whilst she is engaged in the present contest. Mr. C. said he was desirous of seeing such a force as he had described, that is, about twelve ships-of-the-line and fifteen or twenty frigates, provided for the United States; but, he admitted that it was unattainable in the present situation of the finances of the country. He contended, however, that it was such as Congress ought to set about providing, and he hoped, in less than ten years, to see it actually established. He was far from surveying the vast maritime power of Great Britain with the desponding eye with which other gentlemen beheld it. He could not allow himself to be discouraged at the prospect even of her thousand ships. This country only required resolution, and a proper exertion of its immense resources, to command respect, and to vindicate every essential right. When we consider our remoteness from Europe, the expense, difficulty, and perils, to which any squadron would be exposed, stationed off our coasts, he entertained no doubt that the force to which he referred would insure the command of our own seas. Such a force would avail itself of our extensive seaboard and numerous harbors, everywhere affording asylums to which it could retire for safety from a superior fleet, or from which it could issue for the purpose of annoyance. To the opinion of his colleague, (Mr. MCKEE,) who appeared to think that it was in vain for us to make any struggle on the ocean, he would oppose the sentiments of his distinguished connexion, the heroic Daviess, who fell in the battle of Tippecanoe. [Here Mr. C. read certain parts of a work written by Colonel Daviess, in which the author attempts to show that, as the aggressions upon our commerce were not committed by fleets, but by single vessels, they could in the same manner be best retaliated; that a force of about twenty or thirty frigates would be capable of inflicting great injury on English commerce by picking up stragglers, cutting off convoys, and seizing upon every moment of supineness; and that such a force, with our seaports and harbors well fortified, and aided by privateers, would be really formidable, and would annoy the British navy and commerce, as the French army was assailed in Egypt, the Persian army in Scythia, and the Roman army in Parthia.][26] The third description of force worthy of consideration is, that which would be able to prevent any single vessel, of whatever metal, from endangering our whole coasting trade, blocking up our harbors, or laying under contribution our cities; a force competent to punish the insolence of the commander of any single ship, and to preserve in our own jurisdiction the inviolability of our peace and our laws. A force of this kind is entirely within the compass of our means at this time. Is there a reflecting man in the nation who would not charge Congress with a culpable neglect of its duty, if, for the want of such a force, a single ship were to bombard one of our cities? Would not every honorable member of this committee inflict on himself the bitterest reproaches, if, by failing to make an inconsiderable addition to our gallant little Navy, a single British vessel should place New York under contribution? Yes, sir, when the city is in flames, its wretched inhabitants begin to repent of their neglect in not providing engines and water buckets. If, said Mr. C, we are not able to meet the wolves of the forest, shall we put up with the barking of every petty fox that trips across our way? Because we cannot guard against every possible danger, shall we provide against none? He hoped not. He had hardly expected that the instructing but humiliating lesson was so soon to be forgotten which was taught us in the murder of Pierce; the attack on the Chesapeake; and the insult offered in the harbor of Charleston, which the brave old fellow that commanded the fort in vain endeavored to chastise. It was a rule with Mr. C., when acting either in a public or private character, to attempt nothing more than what there existed a prospect of accomplishing. He was, therefore, not in favor of entering into any mad projects on this subject; but for deliberately and resolutely pursuing what he believed to be within the power of Government. Gentlemen refer to the period of 1798, and we are reminded of the principles maintained by the opposition at that time. He had no doubt of the correctness of that opposition. The naval schemes of that day were premature, not warranted by the resources of the country, and were contemplated for an unnecessary war into which the nation was about to be plunged. He always admired and approved the zeal and ability with which that opposition was conducted by the distinguished gentleman now at the head of the Treasury. But the state of things is totally altered. What was folly in 1798 may be wisdom now. At that time, we had a revenue only of about six millions. Our revenue now, upon a supposition that commerce is restored, is about sixteen millions. The population of the country, too, is greatly increased--nearly doubled--and the wealth of the nation is, perhaps, tripled. While our ability to construct a navy is thus enhanced, the necessity for maritime protection is proportionately augmented. Independent of the extension of our commerce, since the year 1798, we have had an addition of more than five hundred miles to our coast, from the bay of Perdido to the mouth of the Sabine--a weak and defenceless accession, requiring, more than any other part of our maritime frontier, the protecting arm of Government. FRIDAY, January 24. _Naval Establishment._ The blank in the section for providing a dock yard, was filled with one hundred thousand dollars. Mr. RHEA moved so to amend the bill as to fix the dock yard in the navy-yard at Washington City; but this motion was negatived by a large majority. On motion of Mr. CHEVES, the words "central and," were struck out, so as to leave the site of the dock yard to be determined by the Executive. The committee having gone through the bill, rose and reported it to the House with the amendments. The House took up the bill, and on the question of filling up the blank for repairing the vessels on hand with "four hundred and eighty thousand dollars," it was carried--yeas 90, nays 23. The question was next put upon agreeing to the report of the committee to strike out the second section of the bill, which contemplated the building of new frigates; when Mr. WILLIAMS rose and spoke at considerable length. He said the time was very inauspicious for commencing an undertaking of such magnitude as the building a navy, which could be of no use in the approaching contest. He doubted the policy of engaging in the business at all; for navies, he said, had deceived the hopes of every country which had relied upon them; that we could never expect to be able to meet Great Britain on the ocean; that we had fought through the Revolution without a navy; for in that contest, a single privateer had done more than the few ships of war which were in possession of the old Congress; that except we are able to build and equip a navy equal to meet the British at sea, we were better without one, as our ships would probably fall a prey to their superior force; that his greatest objection against a navy was, that it must be kept up in time of peace as well as in war; that when the gentlemen spoke of a navy as cheaper than an army, they could not mean to say that if we had a navy the army could be dispensed with--they could not, for instance, take possession of Canada by a navy; that the building of a navy would burden the people with oppressive taxes; that such an establishment would serve only to increase Executive patronage; that with respect to commerce, the people were willing to give it all the protection in their power, but they could not provide a navy for that purpose. SATURDAY January 25. _Naval Establishment._ Mr. QUINCY.--Mr. Speaker, I rise to address you, on this occasion, with no affected diffidence, and with many doubts concerning the expediency of taking any part in this debate. On the one hand, the subject has been discussed with a zeal, industry, and talent, which leave but little scope for novelty, either in topic or illustration. On the other hand, arguments from this side of the House, in favor of this question, are received with so natural a jealousy, that I know not whether more may not be lost than gained by so unpropitious a support. Indeed, sir, if this subject had been discussed on narrow or temporary or party principles, I should have been silent. On such ground, I could not condescend to debate--I could not hope to influence. But, the scale of discussion has been enlarged and liberal--relative rather to the general system, than to the particular exigency. In almost every respect, it has been honorable to the House, and auspicious to the prospects of the nation. In such a state of feeling and sentiment, I could not refrain from indulging the hope that suggestions, even from so favorite a quarter, would be received with candor--perhaps with attention. And, when I consider the deep interest which the State from which I have the honor to be a Representative has, according to my apprehension, in the event, I cannot permit the opportunity entirely to pass, without bringing my small tribute of reflection to the general stock of the House. The object I shall chiefly attempt to enforce, is, the necessity and duty of a systematic protection of our maritime rights, by maritime means. I would call the thoughtful and intelligent men of this House and nation to the contemplation of the essential connection between a naval force, proportionate to the circumstances of our seacoast, the extent of our commerce, and the inherent enterprise of our people; I say, sir, I would call them to the contemplation of the essential connection between such a naval force and the safety, prosperity, and existence, of our Union. In the course of my observations, and as a subsidiary argument, I shall also attempt to show the connection between the adoption of the principle of a systematic maintenance of our maritime rights, by maritime means, and relief from our present national embarrassments. I confess to you, Mr. Speaker, I never can look--indeed, in my opinion, no American statesman ought ever to look--on any question touching the vital interests of this nation, or of any of its component parts, without keeping at all times in distinct view the nature of our political association, and the character of the independent sovereignties which compose it. Among States, the only sure and permanent bond of union is _interest_. And the vital interests of States, although they may be sometimes obscured, can never, for a very long time, be misapprehended. The natural protection which the essential interests of the great component parts of our political association require will be sooner or later understood by the States concerned in those interests. If a protection, upon system, be not provided, it is impossible that discontent should not result. And need I tell statesmen, that, when great local discontent is combined in those sections with great physical power, and with acknowledged portions of sovereignty, the inbred ties of nature will be too strong for the artificial ties of parchment compact. Hence it results that the essential interests of the great component parts of our association ought to be the polar lights of all our statesmen--by them they should guide their course. According to the bearings and variations of those lights, should the statesmen of such a country adjust their policy--always bearing in mind two assurances, as fundamental principles of action, which the nature of things teaches, that, although temporary circumstances--party spirit, local rivalries, personal jealousies, suggestions of subordinate interests--may weaken, or even destroy, for a time, the influence of the leading and permanent interests of any great section of the country, yet those interests must ultimately and necessarily predominate, and swallow up all these local, and temporary, and personal, and subordinate considerations; in other words, the minor interests will soon begin to realize the essential connection which exists between their prosperity and the prosperity of those great interests which, in such sections of the country, nature has made predominant; and that no political connection among free States can be lasting, or ought to be, which systematically oppresses, or systematically refuses to protect, the vital interests of any of the sovereignties which compose it. I have recurred to these general considerations, to introduce and elucidate this principle, which is the basis of my argument, that, as it is the incumbent duty of every nation to protect its essential interests, so it is the most impressive and critical duty of a nation, composed of a voluntary association of vast, powerful, and independent States, to protect the essential interests of all its great component parts. And I add, that this protection must not be formal or fictitious, but that it must be proportionate to the greatness of those interests, and of a nature to give content to the States concerned in their protection. In reference to this principle, the course of my reflections will be guided by two general inquiries--the nature of the interest to be protected, and the nature of the protection to be extended. In pursuing these inquiries, I shall touch very slightly, if at all, on the abstract duty of protection, which is the very end of all political associations, and, without the attainment of which, they are burdens and no blessings. But I shall keep it mainly in my purpose to establish the connection between a naval force and commercial prosperity; and to show the nature of the necessity, and the degree of our capacity, to give to our maritime rights a maritime protection. In contemplating the nature of the interest to be protected, three prominent features strike the eye, and direct the course of reflection, viz: its locality, its greatness, and its permanency. The locality of any great interest, in an association of States such as compose this Union, will be a circumstance of primary importance, in the estimation of every wise statesman. When a great interest is equally diffused over the whole mass, it may be neglected or oppressed or even abandoned, with less hazard of internal dissension. The equality of the pressure lightens the burden. The common nature of the interest removes the causes of jealousy. A concern equally affecting the happiness of every part of the nation, it is natural to suppose, is equally dear to all, and equally understood by all. Hence results acquiescence in any artificial or political embarrassment of it. Sectional fears and suspicions, in such case, have no food for support, and no stimulant for activity. But it is far otherwise when a great interest is, from its nature, either wholly, or in a very great proportion, local. In relation to such a local interest, it is impossible that jealousies and suspicions should not arise, whenever it is obstructed by any artificial or political embarrassment; and it is also impossible that they should not be, in a greater or less degree, just. It is true, of the wisest and the best and the most thoughtful of our species, that they are so constituted as not deeply to realize the importance of interests which affect them not at all, or very remotely. Every local circle of States, as well as of individuals, has a set of interests, in the prosperity of which, the happiness of the section to which they belong is identified; in relation to which interests, the hopes and the fears, the reasonings and the schemes, of the inhabitants of such sections are necessarily fashioned and conducted. It is morally impossible that those concerned in such sectional interests, should not look with some degree of jealousy on schemes adopted in relation to those interests, and prosecuted by men, a majority of whom have a very remote or very small stake in them. And this jealousy must rise to an extreme height, when the course of measures adopted, whether they have relation to the management or the protection of such interests, wholly contravene the opinions and the practical experience of the persons immediately concerned in them. This course of reflection has a tendency to illustrate this idea--that, as in every political association it is of primary importance that the great interests of each local section should be skilfully and honestly managed and protected, so, in selecting the mode and means of management and protection, an especial regard should be had to the content and rational satisfaction of those most deeply concerned in such sectional interests. Theories and speculations of the closet, however abundant in a show of wisdom, are never to be admitted to take the place of those principles of conduct in which experience has shown the prosperity and safety of such interests to consist. Practical knowledge, and that sagacity which results from long attention to great interests, never fail to inspire a just self-confidence in relation to those interests--a confidence not to be browbeaten by authority, nor circumvented by any general reasoning. And, in a national point of view, it is scarcely of more importance that the course adopted should be wise, than that content and rational satisfaction should be given. On this topic of locality, I shall confine myself to one or two very plain statements. It seems sufficient to observe, that commerce is, from the nature of things, the leading interest of more than one-half, and that it is the predominant interest of more than one-third, of the people of the United States. The States north of the Potomac contain nearly four millions of souls; and surely it needs no proof to convince the most casual observer, that the proportion which the commercial interest bears to the other interests of that great section of the Union, is such as entitles it to the denomination of _leading interest_. The States north of the Hudson contain nearly two and a half millions of souls; and surely there is as little need of proof to show that the proportion the commercial interest bears to the other interests of that Northern section of the Union, is such as entitles it there to the denomination of _predominating interest_. In all the country between the Potomac and the Hudson the interest of commerce is so great, in proportion to the other interests, that its embarrassment clogs and weakens the energy of every other description of industry. Yet, the agricultural and manufacturing interests of this section are of a nature and a magnitude, both in respect of the staples of the one and the objects of the other, as to render them, in a very considerable degree, independent of the commercial. And, although they feel the effect of the obstruction of commerce, the feeling may be borne for a long time, without much individual suffering, or any general distress. But, in the country north of the Hudson, the proportion and connection of these great interests are different. Both agriculture and manufactures have there grown up in more intimate relation to commerce. The industry of that section has its shape and energy from commercial prosperity. To the construction, the supply, and the support of navigation, its manufactures have a direct or indirect reference; and it is not very different with its agriculture. A country divided into small farms, among a population great compared with its extent, requires quick circulation and easy processes in the exchange of its commodities. This can only be obtained by an active and prosperous commerce. But, perhaps, the greatness of this interest, and our pecuniary ability to protect it, may be made more strikingly apparent by a comparison of our commerce with that of Britain, in the single particular of export. I state, then, as a fact, of which any man may satisfy himself by a reference to McPherson's Annals of Commerce, where the tables of British export may be found, that, taking the nine years prior to the war of our Revolution--from 1766 to 1774 inclusive--the total average export of Great Britain was £16,000,000 sterling; equal to $71,000,000--an amount less, by $10,000,000, than the present total average export of the United States. And again, taking the nine years beginning with 1789, and ending with 1797, inclusive, the total annual average export of Great Britain was £24,000,000 sterling--equal to $106,000,000--which is less, by $2,000,000, than the total export of the United States in 1807. It is true, that this is the _official value_ of the British export, and that the _real value_ is somewhat higher--perhaps thirty per cent. This circumstance, although it in a degree diminishes the approximation of the American to the British commerce, in point of amount does not materially affect the argument. Upon the basis of her commerce, Great Britain maintains a maritime force of 800 or 1,000 vessels of war. And will it be seriously contended, that, upon the basis of a commerce like ours, thus treading upon the heels of British greatness, we are absolutely without the ability of maintaining the security of our seaboard, the safety of our cities, and the unobstructed course of our coasting trade? By recurring to the permanency of this interest, the folly and madness of this negligence and misplaced meanness--for it does not deserve the name of economy--will be still more distinctly exhibited. If this commerce were the mushroom growth of a night--if it had its vigor from the temporary excitement and the accumulated nutriment which warring elements in Europe had swept from the places of their natural deposit--then, indeed, there might be some excuse for a temporizing policy touching so transitory an interest. But commerce in the Eastern States is of no foreign growth, and of no adventitious seed; its root is of a fibre which almost two centuries have nourished; and the perpetuity of its destiny is written in legible characters, as well in the nature of the country, as in the disposition of its inhabitants. Indeed, sir, look along your whole coast, from Passamaquoddy to Capes Henry and Charles, and behold the deep and far-winding creeks and inlets, the noble basins, the projecting headlands, the majestic rivers; and those sounds and bays, which are more like inland seas, than any thing called by those names in other quarters of the globe! Can any man do this, and not realize that the destiny of the people inhabiting such a country is essentially maritime? Can any man do this, without being impressed by the conviction, that, although the poor projects of politicians may embarrass, for a time, the dispositions growing out of the condition of such a country, yet that nature will be too strong for cobweb regulations, and will vindicate her rights with certain effect--perhaps with awful perils? No nation ever did or ever ought to resist such allurements and invitations to a particular mode of industry. The purposes of Providence relative to the destination of men are to be gathered from the circumstances in which his beneficence has placed them; and to refuse to make use of the means of prosperity which his goodness has put into our hands, what is it but spurning at his bounty, and rejecting the blessings which his infinite wisdom has designated for us, by the very nature of his allotments? The employments of industry, connected with navigation and commercial enterprise, are precious to the people of that quarter of the country, by ancient prejudice, not less than recent profit. The occupation is rendered dear and venerable, by all the cherished associations of our infancy, and all the sage and prudential maxims of our ancestors. And, as to the lessons of encouragement derived from recent experience, what nation, within a similar period, ever received so many that were sweet and salutary? What nation, in so short a time, ever before ascended to such a height of commercial greatness? Having concluded what I intended to suggest, in relation to the nature of the interest to be protected, I proceed to consider the nature of the protection which it is our duty to extend. And here, Mr. Speaker, I am necessitated to make an observation which is so simple and so obvious, that were it not for the arguments urged against the principle of maritime protection, I should have deemed the mere mention of it to require an apology. The remark is this: that rights, in their nature local, can only be maintained where they exist, and not where they do not exist. If you had a field to defend in Georgia, it would be very strange to put up a fence in Massachusetts. And yet, how does this differ from invading Canada, for the purpose of defending our maritime rights? I beg not to be understood, Mr. Speaker, by this remark, as intending to chill the ardor for the Canada expedition. It is very true, that, to possess ourselves of the Canadas, and Nova Scotia, and their dependencies, it would cost these United States, at the least estimate, $50,000,000; and that Great Britain's national pride, and her pledge of protection to the people of that country, being put out of the question, she would sell you the whole territory for half the money. I make no objection, however, on this account. On the contrary, for the purposes of the present argument, I may admit that pecuniary calculation ought to be put out of the field, when spirit is to be shown, or honor vindicated. I only design to inquire how our maritime rights are protected by such invasion. Suppose that in every land-project you are successful--suppose both the Canadas, Quebec, Halifax, every thing to the North pole, yours by fair conquest--are your rights on the ocean, therefore, secure? Does your flag float afterwards in honor? Are your seamen safe from impressment? Is your course along the highway of nations unobstructed? No one pretends it. No one has or can show, by any logical deduction, or any detail of facts, that the loss of those countries would so compress Great Britain as to induce her to abandon for one hour any of her maritime pretensions. What then results? Why, sir--what is palpable as the day--that maritime rights are only to be maintained by maritime means. This species of protection must be given, or all clamor about maritime rights will be understood, by the people interested in them, to be hollow or false; or (what is worse) an intention to co-operate with the enemies of our commerce in a still further embarrassment of it. In considering this subject of maritime protection, I shall recur to the nature and degree of it, and to our capacity to extend it. And there we are always met, at the very threshold, with this objection: "A naval force requires much time to get it into readiness, and the exigency will be past before the preparation can be completed." This want of foresight in times past, is made an apology for want of foresight in the time present. We were unwise in the beginning, and unwise we resolve to continue until the end of the chapter. We refuse to do any thing until the moment of exigency, and then it is too late. Thus our improvidence is made sponsor for our disinclination. But what is the law of nature and the dictate of wisdom, on this subject? The casualties of life, the accidents to which man is exposed, are the modes established by Providence for his instruction. This is the law of our nature. Hence it is that adversity is said to keep a school for certain people who will learn in no other. Hence, too, the poet likens it to "a toad, ugly and venomous, which bears a precious jewel in his head." And, in another place, but with the same general relation, "out of this thorn danger, we pluck the flower safety." This law is just as relative to nations, as it is to individuals. For, notwithstanding all the vaunting of statesmen, their whole business is to apply an enlarged common sense to the affairs intrusted to their management. Touching the nature and degree of that maritime protection, which it may be wise in this nation to extend to its maritime interests, it seems to me that our exertions should rather be excited than graduated, by the present exigency; that our duty is to inquire, upon a general scale, what our commercial citizens have, in this respect, a right to claim; and what is the unquestionable obligation of a commercial nation, to so great a class of its interests. For this purpose, my observations will have reference rather to the principles of the system, than to the provisions of the bill now under debate. Undoubtedly, an appropriation for the building of ten, or any other additional number of frigates, would be so distinct a manifestation of the intention of the National Legislature to extend to commerce its natural protection, as in itself to outweigh any theoretic preference for a maritime force of higher character. I cannot, therefore, but cordially support an appropriation for a species of protection so important and desirable. Yet in an argument, having relation to the system, rather than to the occasion, I trust I shall have the indulgence of the House, if my course of reflections should take a wider range than the propositions on the table, and embrace, within the scope of remark, the general principles by which the nature and degree of systematical naval protection should in my judgment be regulated. Touching that branch of interest which is most precious to commercial men, it is impossible that there can be any mistake. For however dear the interests of property or of life, exposed upon the ocean, may be to their owners or their friends; yet the safety of our altars and of our firesides, of our cities and of our seaboard, must, from the nature of things, be entwined into the affections by ties incomparably more strong and tender. And it happens that both national pride and honor are peculiarly identified with the support of these primary objects of commercial interest. With respect to the nature and extent of this naval force, some difference of opinion may arise, according to the view taken of the primary objects of protection. For myself, I consider that those objects are first to be protected, in the safety of which the national character and happiness are most deeply interested. And these are chiefly concerned, beyond all question, in the preservation of our maritime settlements from pillage and our coast from violence. For this purpose it is requisite that there should be a ship of war for the harbor of every great city of the United States, equal, in point of force, to the usual grade of ships-of-the-line of the maritime belligerents. These ships might be so instructed as to act singly or together, as circumstances might require. My reason for the selection of this species of force is, that it puts every city and great harbor of the United States in a state of security from the insults, and the inhabitants of your seacoast from the depredation, of any single ship of war of any nation. To these should be added a number of frigates and smaller vessels of war. By such means our coasting trade might be protected, the mouths of our harbors secured (in particular that of the Mississippi) from the buccaneers of the West Indies, and, hereafter perhaps, from those of South America. A system of protection, graduated upon a scale so conformable to the nature of the country, and to the greatness of the commercial interest, would tend to quiet that spirit of jealousy which so naturally and so justly begins to spring up among the States. Those interested in commerce would care little what local influences predominated, or how the ball of power vibrated among our factions, provided an efficient protection of their essential interests, upon systematic principles, was not only secured by the letter of the constitution, but assured by a spirit pervading every description of their rulers. But it is said that "we have not capacity to maintain such a naval force." Is it want of pecuniary or want of physical capacity? In relation to our pecuniary capacity, I will not condescend to add any proof to that plain statement already exhibited, showing that we have an annual commercial exposure, equal to six hundred millions of dollars, and that two-thirds of one per cent. upon this amount of value, or four millions of dollars, is more than is necessary, if annually and systematically appropriated, for this great object; so anxiously and rightfully desired by your seaboard, and so essential to the honor and obligations of the nation. I will only make a single other statement, by way of illustrating the smallness of the annual appropriations necessary for the attainment of this important purpose. The annual appropriation of one-sixth of one per cent. on the amount of the value of the whole annual commercial exposure, (one million of dollars,) is sufficient to build, in two years, six seventy-four gun ships; and taking the average expense in peace and war, the annual appropriation of the same sum is sufficient to maintain them afterwards, in a condition for efficient service. This objection of pecuniary inability may be believed in the interior country, where the greatness of the commercial property and all the tender obligations connected with its preservation, are not realized. But, in the cities and in the commercial States, the extent of the national resources is more truly estimated. They know the magnitude of the interests at stake and their essential claim to protection. Why, sir, were we seriously to urge this objection of pecuniary incapacity to the commercial men of Massachusetts, they would laugh us to scorn. Let me state a single fact. In the year 1745, the State, then the colony of Massachusetts Bay, included a population of 220,000 souls, and yet, in that infant state of the country, it owned a fleet consisting of three ships, one of which carried twenty guns, three snows, one brig, and three sloops; being an aggregate of ten vessels of war. These partook of the dangers, and shared in the glory, of that expedition which terminated with the surrender of Louisburg. Comparing the population, the extent of territory, the capital, and all the other resources of this great nation, with the narrow means of the colony of Massachusetts at that period of its history, it is not extravagant to assert that the fleet it then possessed, in proportion to its pecuniary resources, was greater than would be, in proportion to the resources of the United States, a fleet of fifty sail-of-the-line and one hundred frigates. The general effect of the policy I advocate, is to produce confidence at home and respect abroad. These are twin shoots from the same stock, and never fail to flourish or fade together. Confidence is a plant of no mushroom growth and of no artificial texture. It springs only from sage counsels and generous endeavors. The protection you extend must be efficient and suited to the nature of the object you profess to maintain. If it be neither adequate nor appropriate, your wisdom may be doubted, your motives may be distrusted, but in vain you expect confidence. The inhabitants of the seaboard will inquire of their own senses and not of your logic, concerning the reality of their protection. As to respect abroad, what course can be more certain to insure it? What object more honorable, what more dignified than to behold a great nation pursuing wise ends by appropriate means; rising to adopt a series of systematic exertions, suited to her power, and adequate to her purposes? What object more consolatory to the friends--what more paralyzing to the enemies of our Union--than to behold the natural jealousies and rivalries, which are the acknowledged dangers of our political condition, subsiding or sacrificing? What sight more exhilarating than to see this great nation once more walking forth among the nations of the earth, under the protection of no foreign shield? Peaceful because powerful--powerful because united in interests, and amalgamated by concentration of those interests in the national affections. But, let the opposite policy prevail; let the essential interests of the great component parts of this Union find no protection under the national arm--instead of safety let them realize oppression, and the seeds of discord and dissolution are inevitably sown in a soil the best fitted for their root, and affording the richest nourishment for their expansion. It may be a long time before they ripen. But, sooner or later, they will assuredly burst forth in all their destructive energies. In the intermediate period, what aspect does a Union, thus destitute of cement, present? Is it that of a nation keen to discern, and strong to resist, violations of its sovereignty? It has rather the appearance of a casual collection of semi-barbarous clans, with the forms of civilization, and with the rude and rending passions of the savage state. In truth, powerful--yet, as to any foreign effect, imbecile--rich, in the goods of fortune, yet wanting that inherent spirit without which a nation is poor indeed; their strength exhausted by struggles for local power; their moral sense debased by low intrigues for personal popularity, or temporary pre-eminence; all their thoughts turned not to the safety of the State, but to the elevation of a chieftain. A people presenting such an aspect, what have they to expect abroad? What but pillage, insult, and scorn? The choice is before us. Persist in refusing efficient maritime protection; persist in the system of commercial restrictions; what now is, perhaps, anticipation, will hereafter be history. Mr. FISK said that, when this subject was first presented to the House, he felt inclined to vote for a small increase of the Naval Establishment; but it now appears that, what is asked for is considered only as laying a foundation for a great system--a system which, he feared, if carried into execution, might change the Government. Mr. F. contended that the Navy never had, and never could protect our commerce. Like standing armies, he considered navies as dangerous to liberty. As to the constitutional provision, with respect to a navy, it is nothing more than a mere grant of power, which Congress is at liberty to use or not, as they may deem it necessary or expedient. Though he had listened with candor to all the arguments which had been used in favor of an increase of this Establishment at the present time, he was far from being convinced that such an increase, at present, is either necessary or expedient. It appeared to him that every nation which has embarked, to any extent, in Navy Establishments, has been eventually crushed by them. Whether you go back to ancient, or look upon modern Europe, you will find navies have not afforded that protection which gentlemen are desirous of persuading the House they are capable of affording. Has the navy of Russia protected her commerce? There are in the Russian dominions from twenty-five to thirty millions of people; but, by every account we have of them, their situation is not very enviable; nor have they any great degree of commerce to protect. Where are the navies of Sweden and Denmark? The latter, it is well known, were swept away and destroyed by the British fleet; and the fleet of Sweden serves only to keep the country in poverty to maintain it. A navy looks pretty well in theory; but look into the experience of nations, and it will be found to have been the bane of every country which has had any thing to do with it. We should want wisdom, therefore, to pursue a system which has proved so ruinous to others. With respect to Great Britain herself, it had been said that her navy had been the basis of her wealth and prosperity. Mr. F. said he did not envy the situation of that country. The glory and honor which such nations are in the habit of acquiring, prove a curse to them in the end by enslaving them with expense. As to the protection and encouragement of commerce, he believed commerce would always flourish best when left to itself unshackled by regulations. It will then be carried to every part of the globe. In the course of the debate, it had been said that the exports of Great Britain, in 1797, were not greater than ours before our commerce was restricted, though that nation had possessed a navy which had triumphed on the ocean for half a century. How did this happen? It was owing, said Mr. F., to the freedom of our commerce. The gentleman from Massachusetts (Mr. QUINCY) had spoken of the naval force formerly possessed by Massachusetts. But, what security did those ships afford? They were of no use, as he believed; they were nothing but a heavy expense to the State; and he believed the merchants had found their commerce in a much better state since, than it was when they were in being. Gentlemen speak of the embarrassments of our commerce, as if they were owing to our not having a navy; but, if they will look around, they will find that those countries which have navies have not escaped; our embarrassments have arisen from the wrongs committed against us by other nations, which we had no power of preventing. It had been shown that the Navy Establishment proposed could not be supported but by an expense which would prove ruinous to this country. Rather than incur this expense, he was willing to dispense with the honor supposed to be attached to such an Establishment. Mr. F. was opposed to this system, too, because it could not be supported without having recourse to a force similar to impressment to obtain a number of seamen sufficient to man such a fleet. He was anxious to protect every part of the Union; but he could not consent to support any scheme so pregnant with mischief to the country, as he considered this large Navy Establishment to be. The question on agreeing to strike out the section for building the frigates was carried--yeas 62, nays 59. The next question was, on agreeing with the Committee of the Whole to fill the blank for providing ship timber and other imperishable materials, with the words two hundred thousand dollars, which was carried--yeas 82, nays 37. Another question was on agreeing with the Committee of the Whole to make the above appropriation for three years, viz: for the years 1812, 1813, and 1814. This motion was carried--yeas 67, nays 52. The next question was on agreeing with the Committee of the Whole to appropriate one hundred thousand dollars for providing a dock yard. Mr. RHEA moved to strike out the section; but this motion being decided to be out of order, Mr. D. R. WILLIAMS spoke against the propriety of appropriating money, without estimate, for an object not wanted until we went about building seventy-fours. The House adjourned, on motion of Mr. SMILIE, without taking the question. TUESDAY, January 28. _Naval Establishment._ The order of the day, viz: the bill concerning the Naval Establishment, was then taken up, and the question on agreeing to the report of the Committee of the Whole, to fill up the blank in the section providing a dock yard, with one hundred thousand dollars, being under consideration, Mr. CHEVES stated the grounds upon which the committee had recommended this provision of the bill, and replied to some remarks of his colleague (Mr. WILLIAMS) made yesterday. Mr. RHEA then moved to strike out the whole section in relation to the dock yard; which, after some little debate, was carried--yeas 56, nays 52. Mr. BLACKLEDGE moved a new section to the bill, providing for the building of four seventy-four gunships. As an inducement to the House to adopt this new section, he stated there were sufficient timber and guns on hand; that the whole expense would not exceed $1,300,000, and the guns and timber being already provided, an appropriation of $824,000 only, would be necessary to complete them. The question was negatived--yeas 33, nays 76. The bill was then ordered to be engrossed for a third reading to-morrow. MONDAY, March 2. _Divorces in the District._ Mr. LEWIS, from the Committee on the District of Columbia, made the following report: The Committee for the District of Columbia, to whom were referred the petitions of Jane Deakins, praying for a divorce from William Deakins, and of David Beck, praying for a divorce from Ellen, his wife, submit the following report: The only object which the petitioners can have in view is to be enabled, respectively, to enter into new contracts of marriage. Were marriages only a _civil institution_, the courts of law would be open to all parties seeking the redress now prayed for, for alleged breach of the marriage contract: but it is something more; it is a _divine ordinance_, and has been pronounced such by the highest legal as well as spiritual authority. The competency of any human tribunal to dissolve its sacred obligations may well be doubted. The justice or policy, under any circumstances, of weakening the matrimonial institution, upon the purity of which depends the very fabric of society itself, may be boldly denied. Divorces are not merely the effect of corruption of manners; they are the cause also. They hold out temptations to crime which human infirmity cannot at all times resist. They hold out incentives to that adultery which they are called in to remedy. Extreme cases may indeed be put, but they are rare; both parties are generally in fault. Shall a very few individuals, who present themselves in a questionable shape, be debarred from contracting a second marriage, or shall the foundations of society be loosened for their special accommodation? Shall the heaviest public injury be encountered for the convenience of those, who, for the most part, have shown how little reliance is to be placed upon their virtue or discretion? Shall incentives to nuptial infidelity be presented to the great body of society for the personal gratification of a few unfortunate members, diffusing dissatisfaction and discontent, where, but for the deceitful hope of divorce, they had never been known? The frequency of divorces may be taken as an unerring criterion of the depravity of morals. A respectable authority has declared, that "from the Reformation to the commencement of the eighteenth century, there had occurred only four instances of Parliamentary divorce; but, in the present reign, they had increased to the enormous number of one hundred and ninety-three." It is notorious that the crime which is made the groundwork of the divorce, is frequently committed with the most "deliberate and unblushing indifference," for the purpose of enabling the adulterer and adultress thereafter to intermarry. Your committee will not attempt to pursue the subject further. It is calculated to inspire the most solemn reflections. They are opposed to divorce upon principle, as tending to excite family discord; as bearing hard upon the weaker sex, whom it is especially incumbent upon us to protect and to cherish; above all, as weakening the matrimonial tie, upon the sanctity of which depend "all the charities of father, son, and brother." The committee will not enter into the question how far it may be wise or politic to hold forth to the world this District as an asylum for those who wish to obtain absolution from the marriage vow. They will content themselves with submitting the following resolution: _Resolved_, That the prayer of the petitioners ought not to be granted. Referred to a Committee of the Whole on Monday next. WEDNESDAY, March 4. _Constitution of Orleans._ The following message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: At the request of the convention assembled in the Territory of Orleans on the 22d day of November last, I transmit to Congress the proceedings of that body in pursuance of the act, entitled "An act to enable the people of the Territory of Orleans to form a constitution and State government, and for the admission of the said State into the Union on an equal footing with the original States, and for other purposes." JAMES MADISON. MARCH 3, 1812. The Message and accompanying documents having been read, a proposition was made to refer them to a select committee; but, before it was decided, the House adjourned. MONDAY, March 9. _British Intrigues._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I lay before Congress copies of certain documents which remain in the Department of State. They prove that at a recent period, whilst the United States, notwithstanding the wrongs sustained by them, ceased not to observe the laws of peace and neutrality towards Great Britain, and in the midst of amicable professions and negotiations on the part of the British Government, through its public Ministers here, a secret agent of that Government was employed in certain States, more especially at the seat of Government in Massachusetts, in fomenting disaffection to the constituted authorities of the nation; and in intrigues with the disaffected for the purpose of bringing about resistance to the laws; and eventually, in concert with a British force, of destroying the Union and forming the Eastern part thereof into a political connection with Great Britain. In addition to the effect which the discovery of such a procedure ought to have on the Public Councils, it will not fail to render more dear to the hearts of all good citizens that happy Union of these States, which, under Divine Providence, is the guarantee of their liberties, their safety, their tranquillity, and their prosperity. JAMES MADISON. MARCH 9, 1812. _Mr. Henry to Mr. Monroe._ PHILADELPHIA, _February 20, 1812_. SIR: Much observation and experience have convinced me, that the injuries and insults with which the United States have been so long and so frequently visited, and which cause their present embarrassment, have been owing to an opinion entertained by foreign States, "that in any measure tending to wound their pride, or provoke their hostility, the Government of this country could never induce a great majority of its citizens to concur."--And as many of the evils which flow from the influence of this opinion on the policy of foreign nations, may be removed by any act that can produce unanimity among all parties in America, I voluntarily tender to you, sir, such means, as I possess, towards promoting so desirable and important an object; which, if accomplished, cannot fail to extinguish, perhaps forever, those expectations abroad, which may protract indefinitely an accommodation of existing differences, and check the progress of industry and prosperity in this rising Empire. I have the honor to transmit herewith the documents and correspondence relating to an important mission in which I was employed by Sir James Craig, the late Governor General of the British Provinces in North America, in the winter of the year 1809. The publication of these papers will demonstrate a fact not less valuable than the good already proposed; it will prove that no reliance ought to be placed on the professions of good faith of an Administration, which, by a series of disastrous events, has fallen into such hands as a Castlereagh, a Wellesley, or a Liverpool--I should rather say into the hands of the stupid subalterns, to whom the pleasures and the indolence of those Ministers have consigned it. In contributing to the good of the United States by an exposition which cannot (I think) fail to solve and melt all division and disunion among its citizens, I flatter myself with the fond expectation that when it is made public in England it will add one great motive to the many that already exist, to induce that nation to withdraw its confidence from men whose political career is a fruitful source of injury and embarrassment in America; of injustice and misery in Ireland; of distress and apprehension in England; and contempt every where. In making this communication to you, sir, I deem it incumbent on me distinctly and unequivocally to state that I adopt no party views; that I have not changed any of my political opinions; that I neither seek nor desire the patronage nor countenance of any Government nor of any party; and that, in addition to the motives already expressed, I am influenced by a just resentment of the perfidy and dishonor of those who first violated the conditions upon which I received their confidence; who have injured me and disappointed the expectations of my friends, and left me no choice but between a degrading acquiescence in injustice, and a retaliation which is necessary to secure to me my own respect. This wound will be felt where it is merited; and if Sir James Craig still live, his share of the pain will excite no sympathy among those who are at all in the secret of our connection. I have the honor to be, sir, your most obedient servant, &c. J. HENRY. To Hon. JAMES MONROE. _Secretary of State, &c._ No. 1. Mr. Ryland, Secretary to Sir James Craig, late Governor General of the British Provinces in North America, to Mr. Henry. _Application to undertake the Mission to the United States._ [Most secret and confidential.] QUEBEC, _January_ 26, 1809. MY DEAR SIR: The extraordinary state of things at this time in the neighboring States has suggested to the Governor-in-Chief the idea of employing you on a secret and confidential mission to Boston, provided an arrangement can be made to meet the important end in view, without throwing an absolute obstacle in the way of your professional pursuits. The information and political observations heretofore received from you were transmitted by his Excellency to the Secretary of State, who has expressed his particular approbation of them; and there is no doubt that your able execution of such a mission as I have suggested, would give you a claim, not only on the Governor General, but on His Majesty's Ministers, which might eventually contribute to your advantage. You will have the goodness, therefore, to acquaint me, for his Excellency's information, whether you could make it convenient to engage in a mission of this nature, and what pecuniary assistance would be requisite to enable you to undertake it, without injury to yourself. At present, it is only necessary for me to add, that the Governor will furnish you with a cipher for carrying on your correspondence; and that, in case the leading party in any of the States wished to open a communication with this Government, their views might be communicated through you. I am, with great truth and regard, my dear sir, your most faithful, humble servant, HERMAN W. RYLAND. JOHN HENRY, Esq. No. 2. General Instructions from Sir J. H. Craig to Mr. Henry, respecting his Secret Mission. _His Excellency the Governor-in-Chief's Instructions to Mr. Henry, of February, 1809._ [Most secret and confidential.] QUEBEC, _February 6, 1809_. SIR: As you have so readily undertaken the service which I have suggested to you, as being likely to be attended with much benefit to the public interests, I am to request, that, with your earliest convenience, you will proceed to Boston. The principal object that I recommend to your attention, is, the endeavor to obtain the most accurate information of the true state of affairs in that part of the Union, which, from its wealth, the number of its inhabitants, and the known intelligence and ability of several of its leading men, must naturally possess a very considerable influence over, and will indeed probably lead the other Eastern States of America in the part that they may take at this important crisis. I shall not pretend to point out to you the mode by which you will be most likely to obtain this important information; your own judgment, and the connections which you may have in the town, must be your guide. I think it, however, necessary to put you on your guard against the sanguineness of an aspiring party. The Federalists, as I understand, have at all times discovered a leaning to this disposition; and their being under its particular influence, at this moment, is the more to be expected, from their having no ill-founded ground for their hopes of being nearer the attainment of their object than they have been for some years past. In the general terms which I have made use of in describing the object which I recommend to your attention, it is scarcely necessary that I should observe, I include the state of the public opinion, both with regard to their internal politics, and to the probability of a war with England; the comparative strength of the two great parties into which the country is divided, and the views and designs of that which may ultimately prevail. It has been supposed, that, if the Federalists of the Eastern States should be successful in obtaining that decided influence which may enable them to direct the public opinion, it is not improbable that, rather than submit to a continuance of the difficulties and distress to which they are now subject, they will exert that influence to bring about a separation from the general Union. The earliest information on this subject may be of great consequence to our Government, as it may also be, that it should be informed how far, in such an event, they would look up to England for assistance, or be disposed to enter into a connection with us. Although it would be highly inexpedient that you should in any manner appear as an avowed agent, yet, if you could contrive to obtain an intimacy with any of the leading party, it may not be improper that you should insinuate, (though with great caution,) that, if they should wish to enter into any communication with our Government, through me, you are authorized to receive any such, and will safely transmit it to me. And as it may not be impossible that they should require some document, by which they may be assured that you are really in the situation in which you represent yourself, I enclose a credential to be produced in that view. But, I most particularly enjoin and direct that you do not make any use of this paper, unless a desire to that purpose should be expressed, and unless you see good ground for expecting that the doing so may lead to a more confidential communication than you can otherwise look for. In passing through the State of Vermont, you will of course exert your endeavors to procure all the information that the short stay you will probably make there will admit of. You will use your own discretion as to delaying your journey with this view, more or less, in proportion to your prospects of obtaining any information of consequence. I request to hear from you as frequently as possible; and as letters directed to me might excite suspicion, it may be as well that you put them under cover to Mr. ----; and as even the addressing letters always to the same person might attract notice, I recommend your sometimes addressing your packet to the Chief Justice here, or occasionally, though seldom, to Mr. Ryland, but never with the addition of his official description. I am, sir, your most obedient humble servant, J. H. CRAIG. JOHN HENRY, Esq. _Copy of the "Credential" given by Sir James Craig to Mr. Henry._ The bearer, Mr. John Henry, is employed by me, and full confidence may be placed in him for any communication which any person may wish to make to me in the business committed to him. In faith of which I have given him this under my hand and seal at Quebec, the 6th day of February, 1809. [Copies of the letters from Mr. Henry to Sir James Craig, relative to his mission to the United States, in the year 1809.] No. 1. _Answer to the letter of Mr. Secretary Ryland, proposing the mission, &c._ MONTREAL, _Jan. 31, 1809_. SIR: I have to acknowledge the favor of your letter of the 26th instant, written by the desire of his Excellency, the Governor-in-Chief, and hasten to express, through you, to his Excellency, my readiness to comply with his wishes. I need not add how very flattering it is to receive from His Excellency the assurance of the approbation of His Majesty's Secretary of State, for the very humble services that I may have rendered. If the nature of the service in which I am to be engaged will require no other disbursements than for my individual expenses, I do not apprehend that these can exceed my private resources. I shall be ready to take my departure before my instructions can be made out. I have the honor to be your most obedient servant, J. H. H. W. RYLAND, Esq., _Secretary, &c._ No. 2. _To His Excellency the Governor General, &c., in answer to his letter of instructions, &c._ MONTREAL, _Feb._ 10, 1809. SIR: I have the honor to acknowledge the receipt of your Excellency's letter of instructions, the letter of credence, and the cipher for carrying on my correspondence. I have bestowed much pains upon the cipher, and am, notwithstanding this, deficient in some points which might enable me to understand it clearly. I have compared the example with my own exemplification of the cipher, and find a difference in the results; and as the present moment seems favorable to the interference of His Majesty's Government in the measures pursued by the Federal party in the Northern States, and more especially as the Assembly of Massachusetts is now in session, I think it better to set forward immediately, than wait for any further explanation of the means of carrying on a secret correspondence, which the frequency of safe private conveyances to Canada will render almost wholly unnecessary. Should it, however, be necessary at any time, I take leave to suggest that the index alone furnishes a very safe and simple mode. In it there is a number for every letter in the alphabet, and particular numbers for particular phrases; so that when I do not find in the index the particular word I want, I can spell it with the figures which stand opposite to the letters. For example, if I want to say that "troops are at Albany," I find under the letter T, that No. 16 stands for "troops," and number 125 for "Albany;" the intervening words "are at" I supply by figures corresponding with the letters in these words. It will be necessary to provide against accident by addressing the letters to Mr. ----, of Montreal, with a small mark on the corner of the envelope, which he will understand. When he receives it he will then address the enclosure to your Excellency, and send it from Montreal by mail. I will be careful not to address your Excellency in the body of the letter, nor sign my name to any of them. They will be merely designated by the initials A. B. If this mode should, in any respect, appear exceptionable, your Excellency will have the goodness to order a more particular explanation of the card. It would reach me in safety enclosed to ----, Boston. I have the honor to be, with profound respect, your Excellency's most obedient servant, &c. J. H. No. 3. BURLINGTON, (Vt.,) _Feb._ 14, 1809. SIR: I have remained here two days in order fully to ascertain the progress of the arrangements heretofore made for organizing an efficient opposition to the General Government, as well as to become acquainted with the opinions of the leading people relative to the measures of that party which has the ascendant in the National Councils. On the subject of the embargo laws there seems to be but one opinion; namely, that they are unnecessary, oppressive, and unconstitutional. It must also be observed, that the execution of them is so invidious as to attract toward the officers of Government the enmity of the people, which is of course transferable to the Government itself; so that, in case the State of Massachusetts should take any bold step toward resisting the execution of these laws, it is highly probable that it may calculate upon the hearty co-operation of the people of Vermont. I learn that the Governor of this State is now visiting the towns in the northern section of it, and makes no secret of his determination, as Commander-in-Chief of the militia, to refuse obedience to any command from the General Government which can tend to interrupt the good understanding that prevails between the citizens of Vermont and His Majesty's subjects in Canada. It is further intimated that, in case of a war, he will use his influence to preserve this State neutral, and resist, with all the force he can command, any attempt to make it a party. I need not add that, if these resolutions are carried into effect, the State of Vermont may be considered as an ally of Great Britain. To what extent the sentiments which prevail in this quarter exist in the neighboring States, or even in the eastern section of this State, I am not able to conjecture. I only say with certainty, that the leading men of the Federal party act in concert; and therefore infer that a common sentiment pervades the whole body throughout New England. I have seen a letter from a gentleman now in Washington to his correspondent in this place; and, as its contents may serve to throw some light on passing events there, I shall send either the original, or a copy, with this despatch. The writer of the letter is a man of character and veracity; and, whether competent or not to form correct opinions himself, is probably within the reach of all the knowledge that can be obtained by the party to which he belongs. It appears by his statement that there is a very formidable majority in Congress on the side of the Administration; notwithstanding which, there is every reason to hope, that the Northern States, in their distinct capacity, will unite, and resist, by force, a war with Great Britain. In what mode this resistance will first show itself is probably not yet determined upon; and may, in some measure, depend upon the reliance that the leading men may place upon assurances of support from His Majesty's representatives in Canada; and as I shall be on the spot to tender this whenever the moment arrives that it can be done with effect, there is no doubt that all their measures may be made subordinate to the intentions of His Majesty's Government. Great pains are taken by the men of talents and intelligence to confirm the fears of the common people, as to the concurrence of the Southern Democrats in the projects of France; and every thing tends to encourage the belief, that the dissolution of the Confederacy will be accelerated by the spirit which now actuates both political parties. I am, &c. A. B. No. 4. WINDSOR, (Vt.,) _Feb._ 19, 1809. SIR: My last (No. 3) was written at Burlington, the principal town in the northern part of the State of Vermont. I am now at the principal town in the eastern section. The fallacy of men's opinions, when they act under the influence of sensibility, and are strongly excited by those hopes which always animate a rising party, led me to doubt the correctness of the opinions which I received in the northern section of this State; which from its contiguity to Canada and necessary intercourse with Montreal, has a stronger interest in promoting a good understanding with His Majesty's Government. Therefore, since my departure from Burlington, I have sought every favorable occasion of conversing with the Democrats on the probable result of the policy adopted by the General Government. The difference of opinion is thus expressed. The Federal party declare that, in the event of a war, the State of Vermont will treat separately for itself with Great Britain; and support to the utmost the stipulations into which it may enter, without any regard to the policy of the General Government. The Democrats, on the other hand, assert, that in such a case as that contemplated, the people would be nearly divided into equal numbers; one of which would support the Government, if it could be done without involving the people in a civil war, but, at all events, would risk every thing in preference to a coalition with Great Britain. This difference of opinion is not to be wholly ascribed to the prejudices of party. The people in the eastern section of Vermont are not operated upon by the same hopes and fears as those on the borders of the British colony. They are not dependent on Montreal for the sale of their produce nor the supply of foreign commodities. They are not apprehensive of any serious dangers or inconvenience from a state of war; and although they admit that the Governor, Council, and three-fourths of the representation in Congress are of the Federal party, yet they do not believe that the State would stand alone and resist the National Government. They do not, however, deny that, should the State of Vermont continue to be represented as it is at present, it would in all probability unite with the neighboring States in any serious plan of resistance to a war which it might seem expedient to adopt. This, I think, is the safer opinion for you to rely on; if, indeed, reliance ought to be placed on any measure depending upon the will of the rabble, which is ever changing, and must ever be marked with ignorance, caprice, and inconsistency. As the crisis approaches, the difficulty of deciding upon a hazardous alternative will increase; and, unfortunately, there is not in Vermont any man of commanding talents capable of attracting general confidence, of infusing into the people his own spirit; and, amidst the confusion of conflicting opinions, dangers, and commotion, competent to lead in the path of duty or safety. The Governor is an industrious, prudent man, and has more personal influence than any other; but his abilities are not suited to the situation in which a civil war would place him. I am, &c. A. B. No. 5. AMHERST, (N. H.,) _Feb._ 23, 1809. SIR: A gentleman going direct to Canada affords a safe and favorable opportunity of giving you some further account of my progress. I will not make use of the post offices when I can avoid it, because private occasions supersede the necessity of writing in cipher; and the contempt of decency and principles, which forms part of the morals of the subaltern officers of a democracy, would incline them to break a seal with the same indifference that they break their words, when either curiosity or interest is to be indulged. I have not had sufficient time nor evidence to enable me to form any opinion for myself, of the lengths to which the Federal party will carry their opposition to the National Government in the event of a war; which may be inferred from the result of the election of Governors which, within two months, will be made in the States of Massachusetts, New Hampshire, and Rhode Island. From all I know, and all I can learn of the General Government, I am not apprehensive of an immediate war. The embargo is the favorite measure; and it is probable that other means will be employed to excite England to commit some act of hostility, for the sole purpose of placing the responsibility of war on that country. This I most particularly recommend to the consideration of ministers. The dread of opposition, and of the loss of popularity, will certainly keep the ruling party at Washington inactive. They will risk any thing but the loss of power; and they are well aware, that their power would pass away with the first calamity which their measures might bring upon the common people, from whom that power emanates, unless, indeed, they could find a sufficient excuse in the conduct of Great Britain. This impression cannot be too deeply felt by His Majesty's Ministers; nor too widely spread throughout the British nation. It will furnish a sure guide in every policy that may be adopted toward the United States. I have the honor to be, &c. A. B. No. 6. BOSTON, _March 5, 1809_. SIR: I am favored with another opportunity of writing to you by a private conveyance; and think it probable, at this season, that the frequency of these will render it unnecessary to write to you in cipher. It does not yet appear necessary that I should discover to any person the purpose of my visit to Boston; nor is it probable that I shall be compelled, for the sake of gaining more knowledge of the arrangements of the Federal party in these States, to avow myself as a regular authorized agent of the British Government, even to those individuals who would feel equally bound with myself to preserve, with the utmost inscrutability, so important a secret from the public eye. I have sufficient means of information to enable me to judge of the proper period for offering the co-operation of Great Britain, and opening a correspondence between the Governor General of British America, and those individuals who, from the part they take in the opposition to the National Government, or the influence they may possess in any new order of things that may grow out of the present differences, should be qualified to act on behalf of the Northern States. An apprehension of any such state of things as is pre-supposed by these remarks, begins to subside, since it has appeared, by the conduct of the General Government, that it is seriously alarmed at the menacing attitude of the Northern States. But, although it is believed that there is no probability of an immediate war, yet no doubts are entertained that Mr. Madison will fall upon some new expedients to bring about hostilities. What these may be, can only be deduced from what appears to be practicable. A _non-intercourse_ with England and France will probably supersede the embargo; which, by opening with the rest of Europe a partial, legitimate commerce, and offering strong temptations to that which is illegal, will expose the vessels to capture, detention, and embarrassment; will justify the present policy, and produce such a degree of irritation and resentment as will enable the Government of this country to throw the whole blame and responsibility of war from its own shoulders upon those of the British Ministry. If, in this, the party attached to France should calculate with correctness, and the commerce of New England should greatly suffer, the merchants, being injured and discouraged, would not only acquiesce in the restrictive system, but even submit to war. On the other hand, should the small traffic, permitted by a non-intercourse law, be lucrative and uninterrupted, the people would be clamorous for more, and soon compel the Government to restore the friendly relations between the two countries. While I offer my opinion upon this subject, I cannot but express a strong hope that, if any terms should be proposed by either Government, to which the other might think proper to accede, that a principal motive to the adjustment of differences should be understood to arise from the amicable disposition of the Eastern States, particularly of the State of Massachusetts. This, as it would increase the popularity of the friends of Great Britain, could not fail to promote her interests. If it could not be done formally and officially, nor in a correspondence between Ministers, still, perhaps, the administration in the Parliament of Great Britain might take that ground, and the suggestion would find its way into the papers both in England and America. It cannot be too frequently repeated, that this country can only be governed and directed by the influence of opinion, as there is nothing permanent in its political institutions; nor are the populace, under any circumstances, to be relied on, when measures become inconvenient and burdensome. I will soon write again, and am yours, &c. A. B. (In cipher.) No. 7. BOSTON, _March 7, 1809_. SIR: I have now ascertained, with as much accuracy as possible, the course intended to be pursued by the party in Massachusetts that is opposed to the measures and politics of the Administration of the General Government. I have already given a decided opinion that a declaration of war is not to be expected; but, contrary to all reasonable calculation, should the Congress possess spirit and independence enough to place their popularity in jeopardy by so strong a measure, the Legislature of Massachusetts will give the tone to the neighboring States, will declare itself permanent until a new election of members, invite a Congress, to be composed of delegates from the Federal States, and erect a separate government for their common defence and common interest. This Congress would probably begin by abrogating the offensive laws, and adopting a plan for the maintenance of the power and authority thus assumed. They would, by such an act, be in a condition to make or receive proposals from Great Britain; and I should seize the first moment to open a correspondence with your Excellency. Scarcely any other aid would be necessary, and perhaps none required, than a few vessels of war from the Halifax station, to protect the maritime towns from the little navy which is at the disposal of the National Government. What permanent connection between Great Britain and this section of the Republic would grow out of a civil commotion, such as might be expected, no person is prepared to describe; but it seems that a strict alliance must result of necessity. At present the opposition party confine their calculations merely to resistance; and I can assure you that, at this moment, they do not freely entertain the project of withdrawing the Eastern States from the Union, finding it a very unpopular topic; although a course of events, such as I have already mentioned, would inevitably produce an incurable alienation of the New England from the Southern States. The truth is, the common people have so long regarded the Constitution of the United States with complacency, that they are now only disposed in this quarter to treat it like a truant mistress, whom they would, for a time, put away on a separate maintenance, but, without further and greater provocation, would not absolutely repudiate. It will soon be known in what situation public affairs are to remain until the meeting of the New Congress in May, at which time, also, this Legislature will again assemble. The two months that intervene will be a period of much anxiety. In all I have written I have been careful not to make any impression analogous to the enthusiastic confidence entertained by the opposition, nor to the hopes and expectations that animate the friends of an alliance between the Northern States and Great Britain. I have abstracted myself from all the sympathies these are calculated to inspire; because, notwithstanding that I feel the utmost confidence in the integrity of intention of the leading characters in this political drama, I cannot forget that they derive their power from a giddy, inconstant multitude; who, unless in the instance under consideration they form an exception to all general rules and experience, will act inconsistently and absurdly. I am yours, &c. A. B. No. 8. BOSTON, _March_ 9, 1809. SIR: In my letter No. 6, I took the liberty to express my opinion of the probable effect of the non-intercourse law, intended to be enacted; and of the mode by which Great Britain may defeat the real intention of the American Government in passing it. But as this sort of impunity recommended might, in its application to every species of commerce that would be carried on, be deemed by Great Britain a greater evil than war itself, a middle course might easily be adopted, which would deprive France of the benefits resulting from an intercourse with America, without, in any great degree, irritating the maritime States. The high price of all American produce in France furnishes a temptation which mercantile avarice will be unable to resist. The consequence is obvious. But if, instead of condemning the vessels and cargoes which may be arrested in pursuing this prohibited commerce, they should be compelled to go into a British port, and there permitted to sell them, I think the friends of England in these States would not utter a complaint. Indeed, I have no doubt that if, in the prosecution of a lawful voyage, the British cruisers should treat the American ships in this manner, their owners would, in the present state of the European markets, think themselves very fortunate, as it would save them the trouble and expense of landing them in a neutral port, and from thence reshipping them to England, now the best market in Europe for the produce of this country. The Government of the United States would probably complain, and Bonaparte become peremptory; but even that would only tend to render the opposition in the Northern States more resolute, and accelerate the dissolution of the confederacy. The generosity and justice of Great Britain would be extolled; and the commercial States exult in the success of individuals over a Government inimical to commerce, and to whose measures they can no longer submit with patient acquiescence. The elections are begun; and I presume no vigilance or industry will be remitted to insure the success of the Federal party. I am, &c. A. B. P. S. Intelligence has reached Boston that a non-intercourse law has actually passed, and that Martinique has surrendered to British forces. No. 9. BOSTON, _March_ 13, 1809. SIR: You will perceive, from the accounts that will reach you in the public papers, both from Washington and Massachusetts, that the Federalists of the Northern States have succeeded in making the Congress believe that, with such an opposition as they would make to the General Government, a war must be confined to their own territory, and might be even too much for that Government to sustain. The consequence is, that, after all the parade and menaces with which the session commenced, it has been suffered to end without carrying into effect any of the plans of the Administration, except the interdiction of commercial intercourse with England and France, an event that was anticipated in my former letters. Under what new circumstances the Congress will meet in May, will depend on the State elections and the changes that may in the mean time take place in Europe. With regard to Great Britain, she can scarcely mistake her true policy in relation to America. If peace be the first object, every act which can irritate the maritime States ought to be avoided, because the prevailing disposition of these will generally be sufficient to keep the Government from hazarding any hostile measures. If a war between America and France be the grand desideratum, something more must be done; an indulgent and conciliatory policy must be adopted, which will leave the Democrats without a pretext for hostilities; and Bonaparte, whose passions are too hot for delay, will probably compel this Government to decide which of the two great belligerents is to be its enemy. To bring about a separation of the States, under distinct and independent governments, is an affair of more uncertainty, and, however desirable, cannot be effected but by a series of acts and a long-continued policy tending to irritate the Southern and conciliate the Northern people. The former are agricultural, the latter a commercial people. The mode of cherishing and depressing either is too obvious to require illustration. This, I am aware, is an object of much interest in Great Britain, as it would forever secure the integrity of His Majesty's possessions on this continent, and make the two Governments, or whatever number the present confederacy might form into, as useful and as much subject to the influence of Great Britain as her Colonies can be rendered. But it is an object only to be attained by slow and circumspect progression, and requires, for its consummation, more attention to the affairs which agitate and excite parties in this country than Great Britain has yet bestowed upon it. An unpopular war, that is, a war produced by the hatred and prejudice of one party, but against the consent of the other party, can alone produce a sudden separation of any section of this country from the common head. At all events, it cannot be necessary to the preservation of peace that Great Britain should make any great concession at the present moment, more especially, as the more important changes that occur in Europe might render it inconvenient for her to adhere to any stipulations in favor of neutral maritime nations. Although the non-intercourse law affords but a very partial relief to the people of this country from the evils of that entire suspension of commerce to which they have reluctantly submitted for some time past, I lament the repeal of the embargo, because it was calculated to accelerate the progress of these States towards a revolution that would have put an end to the only Republic that remains to prove that a Government founded on political equality can exist in a season of trial and difficulty, or is calculated to insure either security or happiness to a people. I am, &c. A. B. No. 10. BOSTON, _March_ 29, 1809. SIR: Since my letter of the 13th, nothing has occurred which I thought worthy of a communication. The last weeks of this month, and the first of April, will be occupied in the election of Governors and other executive officers in the New England States. The Federal candidate in New Hampshire is already elected by a majority of about one thousand votes. His competitor was a man of large fortune, extensive connections, and inoffensive manners. These account for the smallness of the majority. In Connecticut no change is necessary, and none is to be apprehended. In Rhode Island it is of no consequence of what party the Governor is a member, as he has neither civil nor military power, being merely President of the Council. In Massachusetts it is certain that the Federal candidate will succeed. A few weeks will be sufficient in order to determine the relative strength of parties, and convince Mr. Madison that a war with Great Britain is not a measure upon which he dare venture. Since the plan of an organized opposition to the projects of Mr. Jefferson was put into operation, the whole of the New England States have transferred their political power to his political enemies; and the reason that he has still so many adherents is, that those who consider the only true policy of America to consist in the cultivation of peace, have still great confidence that nothing can force him (or his successor, who acts up to his system, or rather is governed by it) to consent to war. They consider all the menaces and "dreadful note of preparation" to be a mere finesse, intended only to obtain concessions from England on cheap terms. From every sort of evidence, I confess I am myself of the same opinion, and am fully persuaded that this farce, which has been acting at Washington, will terminate in a full proof of imbecility and spiritless temper of the actors. A war attempted without the concurrence of both parties, and the general consent of the Northern States, which constitute the bone and muscle of the country, must commence without hope, and end in disgrace. It should, therefore, be the peculiar care of Great Britain to foster divisions between the North and South, and, by succeeding in this, she may carry into effect her own projects in Europe, with a total disregard of the resentments of the Democrats of this country. I am, &c. A. B. No. 11. BOSTON, _April_ 13, 1809. SIR: I send to Mr. R---- a pamphlet entitled "Suppressed Documents." The notes and comments were written by the gentleman who has written the analysis which I sent by a former conveyance. These works have greatly contributed to excite the fears of the men of talents and property, who now prefer the chance of maintaining their party by open resistance and a final separation, to an alliance with France and a war with England; so that, should the Government unexpectedly, and contrary to all reasonable calculation, attempt to involve the country in a measure of that nature, I am convinced (now that the elections have all terminated favorably) that none of the New England States would be a party in it. But, as I have repeatedly written, the General Government does not seriously entertain any such desire or intention. Had the majority in the New England States continued to approve of the public measures, it is extremely probable that Great Britain would now have to choose between war and concession. But the aspect of things in this respect is changed, and a war would produce an incurable alienation of the Eastern States, and bring the whole country in subordination to the interests of England, whose navy would prescribe and enforce the terms upon which the commercial States should carry, and the agricultural States export, their surplus produce. All this is as well known to the Democrats as to the other party; therefore, they will avoid a war, at least until the whole nation is unanimous for it. Still, when we consider of what materials the Government is formed, it is impossible to speak with any certainty of their measures. The past Administration, in every transaction, presents to the mind only a muddy commixture of folly, weakness, and duplicity. The spell by which the nations of Europe have been rendered inert and inefficient, when they attempted to shake it off, has stretched its shadows across the Atlantic, and made a majority of the people of these States alike blind to duty and to their true interests. I am, &c. A. B. No. 12. BOSTON, _April_ 26, 1809. SIR: Since my letter No. 11, I have had but little to communicate. I have not yet been able to ascertain, with sufficient accuracy, the relative strength of the two parties in the legislative bodies in New England. In all these States, however, Governors have been elected out of the Federal party, and even the Southern papers indicate an unexpected augmentation of Federal members in the next Congress. The correspondence between Mr. Erskine and the Secretary of State at Washington you will have seen before this can reach you. It has given much satisfaction to the Federal party here, because it promises an exemption from the evil most feared, (a war with England,) and justifies their partiality towards Great Britain, which they maintain was founded upon a full conviction of her justice, and sincere disposition to preserve peace. Even the Democrats affect to be satisfied with it; because, as they insist, it proves the efficacy of the restrictive system of Mr. Jefferson. But the great benefit that will probably result from it will be, that Bonaparte may be induced to force this country from her neutral position. Baffled in his attempts to exclude from the continent the manufactures of Great Britain, he will most likely confiscate all American property in his dominions and dependencies, and declare war. Nothing could more than this contribute to give influence and stability to the British party. The invidious occurrences of the rebellion would be forgotten in the resentment of the people against France, and they would soon be weaned from that attachment to her which is founded on the aid that was rendered to separate from the mother country. While Great Britain waits for this natural, I might say necessary, result of the negotiation, would it not be extremely inexpedient to conclude a treaty with the American Government? Every sort of evidence and experience prove that the Democrats consider their political ascendency in a great measure dependent on the hostile spirit that they can keep alive towards Great Britain, and recent events demonstrate that their conduct will be predicated upon that conviction; it is, therefore, not to be expected that they will meet, with corresponding feelings, a sincere disposition on the part of England to adjust all matters in dispute. They are at heart mortified and disappointed to find that Great Britain has been in advance of the French Government, in taking advantage of the provisional clauses of the non-intercourse law; and if they show any spirit at the next session of Congress towards France, it will be only because they will find Bonaparte deaf to entreaty and insensible of past favors; or that they may think it safer to float with the tide of public feeling, which will set strongly against him unless he keep _pari passu_ with England in a conciliatory policy. I am, &c. A. B. No. 13. BOSTON, _May_ 5, 1809. SIR: Although the recent changes that have occurred quiet all apprehension of war, and, consequently, lessen all hope of a separation of the States, I think it necessary to transmit by the mail of each week a sketch of passing events. On local politics I have nothing to add; and as the parade that is made in the National Intelligencer of the sincere disposition of Mr. Madison to preserve amicable relations with Great Britain is, in my opinion, calculated to awaken vigilance and distrust, rather than inspire confidence, I shall (having nothing more important to write about) take leave to examine his motives. I am not surprised at his conditional removal of the non-intercourse law, with respect to Great Britain, because it was made incumbent on him by the act of Congress; but the observations made on his friendly disposition towards Great Britain is a matter of no little astonishment. The whole tenor of his political life directly and unequivocally contradicts them. His speech on the British Treaty in 1796; his attempt to pass a law for the confiscation of "British debts" and British property; his commercial resolutions, grounded apparently on an idea of making America useful as a colony to France; his conduct while Secretary of State; all form an assemblage of probabilities tending to convince me, at least, that he does not seriously desire a treaty in which the rights and pretensions of Great Britain would be fairly recognized. It seems impossible that he should at once divest himself of his habitual animosity, and that pride of opinion which his present situation enables him to indulge; but, above all, that he should deprive his friends and supporters of the benefit of those prejudices which have been carefully fostered in the minds of the common people towards England, and which have so materially contributed to invigorate and augment the Democratic party. Whatever his real motives may be, it is, in this stage of the affair, harmless enough to inquire into the cause of the apparent change. He probably acts under a conviction that, in the present temper of the Eastern States, a war could not fail to produce a dissolution of the Union; or he may have profited by the mistakes of his predecessor, and is inclined to seize the present opportunity to prove to the world that he is determined to be the President of a nation, rather than the head of a faction; or he has probably gone thus far to remove the impression on the minds of many that he was under the influence of France, in order that he may, with a better grace, and on more tenable grounds, quarrel with Great Britain in the progress of negotiating a treaty. Whatever his motives may be, I am very certain his party will not support him in any manly and generous policy. Weak men are sure to temporize when great events call upon them for decision, and are sluggish and inert at the moment when the worst of evils is in action. This is the character of the Democrats in the Northern States. Of those of the South I know but little. I am, &c. A. B. No. 14. BOSTON, _May_ 25, 1809. SIR: My last was under date of the 5th instant. The unexpected change that has taken place in the feelings of political men in this country, in consequence of Mr. Madison's prompt acceptance of the friendly proposals of Great Britain, has caused a temporary suspension of the conflict of parties; and they both regard him with equal wonder and distrust. They all ascribe his conduct to various motives, but none believe him to be in earnest. The State of New York has returned to the Assembly a majority of Federal members. All this proves that an anti-commercial faction cannot rule the Northern States. Two months ago the State of New York was not ranked among the States that would adopt the policy of that of Massachusetts; and any favorable change was extremely problematical. I beg leave to suggest that, in the present state of things in this country, my presence can contribute very little to the interests of Great Britain. If Mr. Erskine be sanctioned in all he has conceded, by His Majesty's ministers, it is unnecessary for me, as indeed it would be unavailing, to make any attempt to carry into effect the original purposes of my mission. While I think it to be my duty to give this intimation to you, I beg it may be understood that I consider myself entirely at the disposal of His Majesty's Government. I am, &c. A. B. No. 15. MONTREAL, _June_ 12, 1809. SIR: I have the honor to inform your Excellency that I received, through Mr. Secretary Ryland, your Excellency's commands to return to Canada; and after the delay incident to this season of the year, in a journey from Boston, arrived here yesterday. Your Excellency will have seen, by the papers of the latest dates from the United States, that a formidable opposition is already organized in Congress to the late measures of Mr. Madison; and it is very evident that if he be sincere in his professions of attachment to Great Britain, his party will abandon him. Sixty-one members have already voted against a resolution to approve of what he has done; and I have no doubt the rest of the Democratic party will follow the example as soon as they recover from the astonishment into which his apparent defection has thrown them. The present hopes of the Federalists are founded on the probability of a war with France; but, at all events, this party is strong and well organized enough to prevent a war with England. It would be now superfluous to trouble your Excellency with an account of the nature and extent of the arrangements made by the Federal party to resist any attempt of the Government unfavorable to Great Britain. They were such as do great credit to their ability and principles; and, while a judicious policy is observed by Great Britain, secure her interests in America from decay. My fear of inducing a false security on the part of His Majesty's Government in their efficiency and eventual success, may have inclined me to refrain from doing them that justice in my former letters which I willingly take the present occasion to express. I trust your Excellency will ascribe the style and manner of my communications, and the frequent ambiguities introduced in them, as arising from the secrecy necessary to be observed, and my consciousness that you understand my meaning, on the most delicate points, without risking a particular explanation. I lament that no occasion commensurate to my wishes has permitted me to prove how much I value the confidence of your Excellency, and the approbation already expressed by His Majesty's Minister. I have the honor to be, &c. J. H. I certify that the foregoing letters are the same referred to in the letter of H. W. Ryland, Esq., dated May 1, 1809, relating to the mission in which I was employed by Sir James Craig, by his letter of instructions, bearing date February 6, 1809. JOHN HENRY. _Mr. Ryland to Mr. Henry._ QUEBEC, _May_ 1, 1809. MY DEAR SIR: The news we have received this day from the States will, I imagine, soon bring you back to us; and if you arrive at Montreal by the middle of June, I shall probably have the pleasure of meeting you there, as I am going up with Sir James and a large suite. The last letters received from you are to the 13th April. The whole are now transcribing, for the purpose of being sent home, where they cannot fail of doing you great credit, and I most certainly hope they may eventually contribute to your permanent advantage. It is not necessary to repeat the assurance that no effort within the compass of my power shall be wanting to this end. I am cruelly out of spirits at the idea of old England truckling to such a debased and accursed Government as that of the United States. I am greatly obliged to you for the trouble you have taken in procuring the books, though, if Spain fails, I shall scarcely have heart to look into them. I can add no more, but that I am, most heartily and affectionately, yours, H. W. R. J. HENRY, Esq., Boston. _Mr. Ryland to Mr. Henry._ MAY 4, 1809. MY DEAR SIR: You must consider the short letter I wrote to you by the last post as altogether unofficial; but I am now to intimate to you, in a more formal manner, our hope of your speedy return, as the object of your journey seems, for the present at least, to be at an end. We have London news, by the way of the river, up to the 6th of March, which tallies to a day with what we have received by the way of the States. Heartily wishing you a safe and speedy journey back to us, I am, my dear sir, most sincerely, yours, H. W. R. Have the goodness to bring my books with you, though I shall have little spirit to look into them, unless you bring good news from Spain. JOHN HENRY, Esq. _Mr. Henry to Mr. Peel._ JUNE 13, 1811. SIR: I take the liberty to enclose to you a memorial addressed to the Earl of Liverpool, and beg you will have the goodness either to examine the documents in your office, or those in my own possession, touching the extent and legitimacy of my claim. Mr. Ryland, the Secretary of Sir J. Craig, is now in London, and, from his official knowledge of the transactions and facts alluded to in the memorial, can give any information required on that subject. I have the honor to be, &c. J. H. _Memorial of Mr. Henry to Lord Liverpool._ The undersigned most respectfully submits the following statement and memorial to the Earl of Liverpool: Long before and during the administration of your Lordship's predecessor, the undersigned bestowed much personal attention to the state of parties, and to the political measures in the United States of America. * * * * * Soon after the affair of the Chesapeake frigate, when His Majesty's Governor General of British America had reason to believe that the two countries would be involved in a war, and had submitted to His Majesty's Ministers the arrangements of the English party in the United States for an efficient resistance to the General Government, which would probably terminate in a separation of the Northern States from the General Confederacy, he applied to the undersigned to undertake a mission to Boston, where the whole concerns of the opposition were managed. The object of the mission was to promote and encourage the Federal party to resist the measures of the General Government, to offer assurances of aid and support from His Majesty's Government of Canada, and to open a communication between the leading men engaged in that opposition and the Governor General, upon such a footing as circumstances might suggest; and, finally, to render the plans then in contemplation subservient to the views of His Majesty's Government. The undersigned undertook the mission, which lasted from the month of January to the month of June, inclusive, during which period those public acts and legislative resolutions of the Assemblies of Massachusetts and Connecticut were passed which kept the General Government of the United States in check, and deterred it from carrying into execution the measures of hostility with which Great Britain was menaced. For his services on the occasions herein recited, and the loss of time and expenses incurred, the undersigned neither sought nor received any compensation, but trusted to the known justice and liberality of His Majesty's Government for the reward of services which could not, he humbly conceives, be estimated in pounds, shillings, and pence. On the patronage and support which was promised in the letter of Sir J. Craig, under date of the 26th January, 1809, (wherein he gives an assurance "that the former correspondence and political information transmitted by the undersigned had met with the particular approbation of His Majesty's Secretary of State; and that his execution of the mission, proposed to be undertaken in that letter, would give him a claim not only on the Governor General, but on His Majesty's Ministers,") the undersigned has relied, and now most respectfully claims, in whatever mode the Earl of Liverpool may be pleased to adopt. The undersigned most respectfully takes this occasion to state that Sir J. Craig promised him an employment in Canada, worth upwards of one thousand pounds a year, by his letter, herewith transmitted, under date of September 13, 1809, which he has just learned has, in consequence of his absence, been given to another person. The undersigned abstains from commenting on this transaction, and most respectfully suggests that the appointment of Judge Advocate General of the province of Lower Canada, with a salary of five hundred pounds a year, or a Consulate in the United States, _sine curia_, would be considered by him as a liberal discharge of any obligation that His Majesty's Government may entertain in relation to his services. _Mr. Peel, Secretary to Lord Liverpool, to Mr. Henry_ DOWNING STREET, _June_ 28, 1811. SIR: I have not failed to lay before the Earl of Liverpool the memorial, together with several enclosures, which was delivered to me a few days since by General Loft, at your desire. His Lordship has directed me to acquaint you that he has referred to the correspondence in this office of the year 1809, and finds two letters from Sir James Craig, dated 10th April and 5th May, transmitting the correspondence that has passed during your residence in the Northern States of America, and expressing his confidence in your ability and judgment, but Lord Liverpool has not discovered any wish on the part of Sir James Craig that your claims for compensation should be referred to this country, nor indeed is allusion made to any kind of arrangement or agreement that had been made by that officer with you. Under these circumstances, and had not Sir James Craig determined on his immediate return to England, it would have been Lord Liverpool's wish to have referred your memorial to him, as being better enabled to appreciate the ability and success with which you executed a mission undertaken at his desire. Lord Liverpool will, however, transmit it to Sir James Craig's successor in the Government, with an assurance that, from the recommendations he has received in your favor, and the opinion he has formed on your correspondence, he is convinced the public service will be benefited by your active employment in a public situation. Lord Liverpool will also feel himself bound to give the same assurance to the Marquis Wellesley, if there is any probability that it will advance the success of the application which you have made to his Lordship. I am, sir, your most obedient humble servant, ROBERT PEEL. J. HENRY, Esq., _No. 27 Leicester Square_. _Mr. Ryland to Mr. Henry._ TUESDAY EVENING, _July_ 2, 1811. MY DEAR HENRY: It gives me real pleasure to find that the apprehension I had formed with respect to the fulfilment of your expectations is likely to prove erroneous. As every thing which passed, relative to your mission, was in writing, I think you will do well by submitting to Mr. Peel all the original papers. I myself could give no other information relative to the subject, than what they contain, as you and I had no opportunity of any verbal communication respecting it till after your mission terminated, and I never wrote you a letter in the Governor's name which had not previously been submitted to his correction. The impression I had received of your character and abilities made me anxious to serve you even before I had the pleasure of a personal acquaintance with you, and the same desire has operated on me ever since; I am, therefore, entitled to hope that any opinion which I may have given you, as to your best mode of obtaining an employment under Government, will be received with the same candor that gave rise to it. I think you will do well to persevere, as you propose. I have no doubt that every letter from you, which Sir James sent home, will be found in Mr. Peel's office, as the established practice there is to bind the despatches and enclosures yearly up together. H. W. RYLAND. JOHN HENRY, Esq., &c. _Mr. Henry to Mr. Peel._ 27, LEICESTER SQUARE, LONDON, _September 4, 1811._ SIR: I have just learned the ultimate decision of my Lord Wellesley, relative to the appointment which I was desirous to obtain; and find that the subsisting relations between the two countries forbid the creating a new office in the United States, such as I was solicitous to obtain. In this state of things I have not a moment to lose in returning to Canada; and have taken my passage in the last and only ship that sails for Quebec this season. As I have not time to enter (_de novo_) into explanations with the gentleman who is in your office, and as I have received the assurances from you, in addition to the letter from my Lord Liverpool, of the 27th June, that "his Lordship would recommend me to the Governor of Canada for the first vacant situation that I would accept," I beg the favor of you to advise me how I am to get that recommendation without loss of time. I have the honor to be, &c. J. HENRY. ROBERT PEEL, Esq., &c. _Despatch of Lord Liverpool to Sir George Prevost._ DOWNING STREET, _Sept. 16, 1811_. SIR: Mr. Henry, who will have the honor of delivering this letter, is the gentleman who addressed to me the memorial, a copy of which I herewith transmit, and to whom the accompanying letter from Mr. Peel was written by my direction. In compliance with his request, I now fulfil the assurance which I have given of stating to you my opinion of the ability and judgment which Mr. Henry has manifested on the occasions mentioned in his memorial, and of the benefit the public service might derive from his active employment in any public situation in which you should think proper to place him. I am, sir, your most obedient, humble servant, LIVERPOOL. To SIR GEORGE PREVOST, _Baronet, &c._ [The following is the report of the Secretary of State, communicated to the Senate by the Message of the 12th March, 1812.] DEPARTMENT OF STATE, _March_ 12, 1812. The Secretary of State, to whom was referred the resolution of the Senate of the 10th instant, has the honor to report: That this department is not in possession of any names of persons in the United States who have, in any way or manner whatever, entered into, or countenanced the project or the views for the execution or attainment of which John Henry was, in the year 1809, employed by Sir James Craig; the said John Henry having named no person or persons as being concerned in the said project or views referred to in the documents laid before Congress on the 9th instant. Which is respectfully submitted, JAMES MONROE. The Message and documents having been read, Mr. RHEA made a motion to print them. Mr. PITKIN said that he had no objection to the papers being printed, but that he rose to protest against the sentiments attributed in these papers to the Federal party, being considered as those of the citizens of the State which he had the honor to represent. He trusted it would not be believed that they had any knowledge of any mission of this kind from Canada, or from any other quarter. It was the first time that he had heard that the opposition to the embargo in the States of Vermont or Massachusetts had any connection with the British Government, or with any project of a separation of the Union in any manner, much less under the agency of a British spy. So far as he could understand the papers from the first reading, Mr. P. said they did not intimate that any disclosure had been made to any individual of the United States by Mr. Henry of the object of his mission, or that his scheme had been advocated or supported by any one. And I trust no gentleman will take the character of the parties in any section of this country, from a man who it seems has proved a traitor to his own Government. So far as the statements made in these papers may be considered as involving the party in concert with the Federal party, in any scheme of co-operation with the British Government in dividing the Union, it is one of the grossest libels that ever was uttered. Nor do I feel willing to take the character of the people of this country from the mouth of this man. He does not stop at debasing the character of the people of this country, but he utters a libel against all parties and against the Government itself. He states that in the extra session of Congress in May, 1809, there were sixty-one votes against Mr. Madison, in consequence of his arrangement with Mr. Erskine; when we all know that the vote on the resolution approving of the President's conduct in that affair was no criterion by which to judge. While, therefore, gentlemen will not, as I presume they will not, place any confidence in the statements made by this man against themselves, and against those whom he styles Democrats, I trust they will be equally incredulous as to any statements he has made against those he has called Federalists, with respect to their co-operation with the British Government in dividing the Union. More especially as they come from one who, disappointed at not receiving the promised reward from his Government, has turned traitor to his employers. Mr. BIBB said he agreed with the gentleman who just sat down on one point, that a full investigation ought to be had. It was due to the Congress, to our connections with Great Britain, that an inquiry should be made into the transaction now exposed to view; and, in addition to the motion for printing, he should move a reference of the Message to the Committee of Foreign Relations. Mr. GHOLSON said it was a source of gratification to him, that, so far as the papers communicated by the President could be considered evidence at all, they were certainly highly honorable testimony in favor of the Eastern section of the Union. An emissary of great talents had been employed by the British in a nefarious scheme to dismember the United States, and to engender treason in the very bosom of our country: and yet, Mr. G. said, it does not seem that this spy has been able to connect with himself any citizen of the United States. If he had held correspondence with any persons of distinction, the presumption is their names would have been disclosed in the papers that have been read. Mr. G. was happy in cherishing the belief that the liberties of this country would always find a sufficient guarantee against machinations of this sort, in the patriotism of every portion of the Union. This communication, for which the House was indebted to the President, was highly interesting and important in one point of view. It demonstrated, as matter of fact, what had heretofore remained only speculation and conjecture, that the British Government has long meditated the separation of these States; and what is more, that they have actually attempted the execution of this wicked design, and have endeavored to convert our own citizens into traitors! He would say no more. Mr. QUINCY said he was much obliged to the gentleman last up for the view which he had taken of the subject. It had struck him previously with much force, and he meant to have taken the floor to have expressed it. If ever there had existed in the British Government, or any other Government, an idea that there was a party in this country who would associate with it to dissolve this Union, he thanked God that the project was exposed. If it was true, as these papers stated, that this man had been so employed, he thanked God that the mission had been detected. The Administration, in bringing the subject before the House, had done worthily, and the subject ought to be inquired into. What is the fact, admitting all that this person has said to be true? Why, that an agent from the British Government, under circumstances peculiarly auspicious and suitable to his purpose, goes to the spot which he represents as the hot-bed of opposition, to stir up disunion, and his papers do not contain an intimation that he dared to mention such an idea as that of a dissolution of the Union to any individual. No, sir; and I dare to say that he never did mention such a thing to any distinguished individual. As far as I know the sentiments of gentlemen in that quarter, they hold this Union dear, and look upon such a connection as is supposed in these papers with as much abhorrence as any man, however attached he may be to the administration of the Government. Whenever a dismemberment of the Union has been talked of, it has been with awe, and with a fear that the present course of public measures would lead to such an event, and not with a view to bring it about. Sir, I know that other ideas have been spread over the country for the purpose of serving party views. But here, in this temple of our liberties, let us reason with one another according to the evidence before us. I rejoice that the subject has been brought forward, and that an agent so peculiarly adapted to the business in which he was employed has not. been able to furnish any evidence of even the connivance of any individual at his mission. Mr. WRIGHT said that such an extraordinary communication as that just received from the President, reflecting so much on various sections and parties of the Union, required serious consideration before they consented to publish such gross abuse of every portion of our people. Gentlemen should reflect that this very disclosure might be one of the means used by this miscreant to divide this country. If he wished to promote division, how could he better attain his object than by denouncing the people of a particular section? Who is this man, and where is he? is an inquiry that ought to be made. I am not one of those who would, without inquiry, take the words of a spy, traitor, and villain, as truth. It might be well to print a sufficient number for the House, but no more until they knew more about it. However gentlemen in the Eastern States might have been dissatisfied at particular measures, the embargo law for instance, their opposition to them had arisen from their operation on their particular interests, and not that they had any disposition to sever themselves from the Union. This business had been very correctly communicated by the Executive to Congress; but they ought to act on it with temper, prudence, and coolness. Mr. W. protested against considering any such disposition as it attributed to a certain party to exist, particularly in the spot which has been frequently and emphatically styled the cradle of the Revolution. He could not feel the same disposition which some appeared to do, to give consequence to this affair. Mr. TROUP did not consider these papers as involving the character of any portion of our people. They appeared to him to be calculated merely to put the people on their guard against foreign emissaries or agents employed for the purpose of effecting a dismemberment of this Union. As to the opinions this person expresses of parties, &c., they are merely the individual speculations of this man, and cannot have much weight. But the documents have a most important bearing. They establish the fact that a foreign Government, on the eve of hostility with us, has for some time past employed an agent to foment divisions among us; and another fact, which, considered in connection with other circumstances, is of great importance. They show the deep-rooted hostility of this foreign power to our Republican Government and liberties--a hostility which could stop at nothing short of a dismemberment of the country. After the affair of the Wabash, when it was said that the Indians had been instigated by the same enemy to hostilities against us, the British Minister's choler rose; he denied the whole. He avails himself of suggestions in public prints to deny their statements; to state that so far from a disposition to stir up the Indians against us, the contrary was the fact; that, indeed, Sir James Craig has been intent on diverting Indian hostilities. Sir, may we not reasonably believe him to have fomented Indian hostilities in one part of the country, while in another he was promoting disunion in the body of the people? These, sir, are the only facts disclosed of importance; the only facts which would justify the publication of more than the ordinary number of copies. Mr. FISK said that the remarks which had been made by gentlemen, induced him to ask the indulgence of the House, to give some information and make a few observations relative to the subject now under consideration. This Mr. Henry was an Englishman, but had long resided in this country; so long that he had obtained a captaincy in the army raised in the year 1798; he was a man of gentlemanly deportment, and reputed good moral character; that he (Mr. FISK) and his colleague (Mr. STRONG) well remembered when he passed through Burlington, in the Spring of the year 1808, and that his object was at that time much suspected to have been what he now states; but as a politician, he was thought by the Republicans to have been a firm believer in the British maxim, "that the end sanctifies the means;" and the Federal party enjoyed the full benefits of his principles and labors while he lived in Vermont. Sir, gentlemen say that he is a traitor, a spy, and, therefore, what he here relates is not entitled to credit. However dishonorable a transaction like this may be deemed by our Government, whose motives and conduct are directed and squared by the principles of morality and justice, yet, I believe, it is not thought so very disgraceful in the British Government, as to be beneath her first characters to undertake. Sir, was the mission to Copenhagen to destroy that city, murder the innocent inhabitants, and to rob the Danes of their fleet, a more honorable one than this? Certainly not. And yet, sir, the famous Mr. Jackson, who went on that mission was considered worthy of being a Minister to this country, where he was caressed and highly esteemed by some; and performed both missions much to the satisfaction of his master. Why, sir, can gentlemen seriously doubt the truth of the facts stated by this Mr. Henry, when they have it from the highest authority, that the former British Minister, Mr. Erskine, while here, at this very time, was in the same business this Henry was sent to perform? In a letter written by that Minister to this Government, and published by its order, he tells them: "I have endeavored, by the most strict and diligent inquiries into the views and strength of the Federal party, to ascertain to what extent they would be willing and able to resist the measures of the party in power, and how far they could carry the opinions of this country along with them in their attempts to remove the embargo, without recurring to hostilities against both Great Britain and France." And again, he tells them in his letter of the 15th February, 1809, when speaking of the divisions which then agitated this country, and the opposition made to the laws by the people of the Eastern States: "The ultimate consequences of such differences and jealousies, arising between the Eastern and Southern States, would inevitably tend to a dissolution of the Union, which has been for some time talked of, and has of late, as I have heard, been seriously contemplated by many of the leading people in the eastern division." Now, sir, when the British Minister was on this business, by order of his Government, is it extraordinary or incredible that this Henry should be sent on the same errand by Governor Craig? The occurrences of those times place the fact out of doubt. I perfectly recollect that on my return home from this place in March, 1809, I was informed of this Henry having passed through the country; and it was then conjectured that he was on the very business which he now states. But, say gentlemen, he libels and calumniates the Government! Why, sir, he does not more so than has often been done on this floor by a gentleman not now present, or than has been done for years by one description of presses and newspapers in this country. The division of the Union is not a new subject. As early as the time the Jay Treaty agitated this country, I saw two numbers in the "Centinel," printed at Boston, holding out the idea of a separation of the States. I am very far from believing it was ever the wish of the great body of the Federal party, or that they will knowingly join the enemies of this country to effect such a purpose, but that there are some who call themselves Federalists, and who in principle and feeling are Englishmen, that would do it, I have no doubt. Mr. SMILIE said the character of this man was nothing to us, though it might be to him, and he therefore should not follow the example of gentlemen who had made so free with it. There was one point in which he considered the publication of these documents, which was of real importance; that they exhibited to the American people what sort of a nation we had to deal with. It appeared to him that Great Britain considered no means dishonorable provided they would accomplish the attainment of her object. With respect to Mr. Wright's idea, that the publication of the papers would throw an odium on the leading parties in this country, said Mr. S., none of those papers said any thing more disrespectful to the parties in this country than those parties had frequently said of each other in the public prints. He never had believed that the mass of the Federal party wished a separation of the Union; but that there were men in it attached to the British interests, he knew to be true. There was at least enough in these papers to put every man on his guard with respect to the insidious, dishonorable conduct of that Government, and he would therefore vote for printing 5,000 copies. Mr. MACON said this was one of those debates which sometimes arose in the House, in which all were on one side of the question. Nothing can be more true than that these papers do prove that Great Britain has not yet ceased her attempts to disturb the peace of this nation. That they were genuine he believed, although they came from a man whom that Government had employed. There was nothing new in the manner of communicating them. How was it in the conspiracy of Blount and Liston? Mr. Adams communicated the disclosure to Congress. I imagine that Burr's conspiracy was communicated by some one who was or had been engaged in it. In this case, a man who had been in the service of this Government, preferring the British, was, while in Canada, engaged by Governor Craig to go into a part of this country to endeavor to procure a division of the Union. Mr. M. said he had, four years ago, stated that both Great Britain and France had agents in this country. Had they not had them in other countries? They had; and he cited Holland as a particular instance. The only question that presents itself is, Is the information useful to us? Does it not confirm every man in the belief that while she is making professions of friendship through her Minister here, Great Britain is, in another direction plotting our destruction by her secret agents? It would be happy for us if we had not also French agents here. I never did believe the Federal party had any notion of joining Great Britain; but this nation, favored as it is, has yet not been clear of discord; and to say that there is not a man in the Federal or Republican parties who would wish a union with Great Britain or France, would be to say what I do not believe. As to this man, he is just such a one as the British usually employ for these purposes; he is one of their own agents. Can England complain of our giving credit to a man with whom her first Secretary of State and the Governor General of Canada correspond? I care nothing about the cause which brings him here, it is an affair between him and them. The question is, Has he told the truth? I verily believe he has. I understood enough of the papers, as read, to know that he was the agent of the British Government sent here to sow disunion, and that was enough for me. So long as we are governed by interest, mutual wants, or common sense, so long shall we continue united. We are placed in such a situation that we ought to love each other, and we always should, did not our mad passions sometimes run away with us. One part of the nation delights in using the sea; another in agriculture; we supply each other's wants; we ought never to dream of separation. And, sir, when these messengers of hell are sent here shall we not look at them? Let us have the papers printed, sir. Mr. KEY made some remarks which were not all distinctly heard by the reporter. He wished that the publication could have been accompanied with some refutation of its contents, as it would go to alarm the people with an idea of the existence of a spirit in one section of this country which he was sure did not exist. He was not only for committing the subject, but for following it up with a full and prompt examination. Sure I am, said Mr. K., that the people of Europe have mistaken the American character. Whatever difference of opinion may exist among ourselves, there can be none as to the propriety of supporting the integrity of the Union. There can be no doubt that the people of this country, of all descriptions, will rally around the constitution. France had heretofore supposed she possessed a party in this country, but there was not a man of sense in the country who believed it. Foreign nations would err in this way, having no correct knowledge of the sentiments of the people. If we were soon to be involved in war, it was proper that no distrust should exist in one part of the community against another; and he therefore regretted that a complete investigation could not be had before the papers were published. Mr. MILNOR said his purpose in rising now was to express the anxious desire he felt that on this question there might not be the least division of sentiment manifested in the House. He should be extremely sorry at any time; above all, at a period of our national progress when it was thought that a change of circumstances of the most important kind was about to take place; that at this time an opinion should be imbibed that any portion of the people of this country were favorable to England. The candor of the gentleman from Maryland (Mr. WRIGHT) redounded to his honor. He was extremely glad to find gentlemen acknowledge, with respect to the party in which he stood enrolled, whatever might be our internal differences, &c., that they could not be suspected of hostility to the Union; there could be no idea entertained by sensible men of either party that there was among us any considerable portion of men who are inimically disposed to the union of the States. That these papers proved a dishonorable attempt on the part of the British Government Mr. M. said he had no doubt. Although a strong sensation would probably be produced by the discovery of this circumstance, and it might be perverted much to the injury of the feelings of particular individuals, he hoped the good sense of the community would induce them, while they properly appreciated this attempt of a foreign Government, not to be led into rash or injudicious measures. He really wished the affair might be probed to the bottom; and that the British Minister having in one case come forward with a disavowal for his Government, would say in some shape or other what was the real state of the case now before the House. The motion for printing was unanimously agreed to. Mr. BIBB moved to amend his motion for reference to the Committee of Foreign Relations, so as to give the committee power to send for persons and papers. Mr. TROUP said that on occasions of this kind great care should be taken lest the House be hurried by a momentary excitement into an act of precipitancy. He had confidence in the discretion of the Committee of Foreign Relations, but the vesting such a power in the committee might be considered as an instruction by the House to proceed under any circumstances to bring Mr. Henry before them. He had no doubt in his own mind that the communication had been voluntary on the part of Mr. Henry, but he entertained as little that there may have been certain stipulations and conditions which the Executive would feel itself under the strongest obligations of good faith to comply with, and which would exempt the individual making the disclosure from any responsibility of any kind. Whatever may be thought of the motives of Mr. Henry in making the disclosure, or whatever the epithets applied to him in debate, certain it was, Mr. Henry had done service to the country, and ought to be protected by it. If the committee should, on examination, think proper to proceed to summon persons, or call for papers, the House would not hesitate to vest them with the necessary powers. Mr. GRUNDY stated what was his impression as to the course he should incline to pursue as a member of the Committee of Foreign Relations, if these papers should be referred as proposed, to that committee. If any engagements, express or implied, had taken place between the Administration and Mr. Henry, that he should be free from detention, &c., he should not, as one of the committee, consent to violate that engagement. The question on reference was carried unanimously. The question to clothe the committee with compulsory power was carried--104 to 10. THURSDAY, March 12. _Mississippi Territory._ The unfinished business of yesterday, the bill for enabling the people of the Mississippi Territory to form a constitution and State Government, being taken up-- Mr. POINDEXTER said, that on the general principles of the bill under consideration, he presumed there will be but little difference of opinion. The population of the Territory proposed to be erected into an independent State is unquestionably sufficient to authorize the measure agreeably to the present ratio of representation; and from the vast influx of emigration to that section of the Union since the last census, I am fully satisfied that it might be demanded as a matter of right under the compact with the State of Georgia. But, sir, the wise and magnanimous policy of the General Government has uniformly conferred on the respective Territories the rights of State sovereignty so soon as their numbers would fairly entitle them to one member in the House of Representatives of the United States. Ohio was admitted with a population of thirty-seven thousand souls. In the next Congress, that State will be entitled to six Representatives, besides a very large fraction which was thrown on her by the apportionment made during the present session. All the other new States received into the Confederacy since the adoption of the constitution, have grown into importance, and now constitute some of the firmest pillars in the Temple of Liberty. Permit me, Mr. Chairman, to express a hope, that while gentlemen delight to bask in the sunshine of freedom at home, they will on every occasion manifest their liberality and philanthropy, by extending its cheering rays to the remotest regions of our beloved country. Emancipate us from the trammels of colonial vassalage; place us on the high eminence of a free, sovereign, and independent commonwealth; and we shall at all times be ready, with our lives and fortunes, to assert the rights and vindicate the honor of our common country. With respect to the limits recommended by the committee, including all that tract of country of which possession was taken by virtue of the Proclamation of the President of the United States, bearing date the 27th of October, 1810, there appears to exist a diversity of opinion. Some gentlemen think it improper to legislate definitely over that country, until the pledge given in the proclamation that it will in our hands be held subject to future negotiation, is redeemed in a manner satisfactory to the Executive who made it; and others wish to divide the country between the State of Louisiana and the State to be formed of the Mississippi Territory. To rescue this subject from the first objection, at a very early period of the session, I moved a resolution calling on the President for information on two points: 1. Whether there was any pending negotiation respecting our title. 2. Whether it was the wish of the Executive that the Legislative authority of Congress over the country should be suspended with a view to future negotiation and adjustment in relation to the claim of the United States. To this request the President has returned no answer. But without the aid of those lights which it is in the power of the Executive to shed upon the question, we all know that the downfall of the late Spanish Monarch, and the distracted state of revolution in which Spain is involved, renders it impracticable to recognize any legitimate authority with whom a negotiation could be conducted. It is true, several letters have passed between Mr. Secretary Monroe and Mr. Foster, the British Minister, during the recess of Congress, relative to our possession of West Florida, and the manner of taking it. On this correspondence it is not my intention at present to comment. It is a new proof of the disposition which Great Britain has always shown to intermeddle in the affairs of other nations, and the language of Mr. Foster is in the highest degree arrogant and insulting. Mr. Monroe, in his letter of the 8th of July, after repelling the insinuations made by the British Government as to the motives by which the President was actuated in taking possession of the country, declares "that by this event the United States have acquired no new title to West Florida. They wanted none." From this declaration it is evident that no doubt is entertained by the Executive as to the validity of our title, and therefore it is unnecessary to suspend for a longer period the admission of that country into the Union. Mr. POINDEXTER then offered the following amendment: "_And be it further enacted_, That the said State shall consist of all that tract of country contained within the following boundaries, to wit: beginning on the river Mississippi, at the point where the southern boundary line of the State of Tennessee unites with the same; thence along said line to its junction with the western boundary of the State of Georgia; thence along the said boundary to the thirty-first degree of latitude, and along said degree of latitude to a point opposite the river Perdido; thence to the junction of said river with the Gulf of Mexico, including all islands within six leagues of the shore to the junction of Pearl River with the Lake Pontchartrain; and up said river to the 31st degree of latitude; thence to the river Mississippi, and up the same to the beginning." The question on this amendment was taken without debate, and carried. Mr. CLAY moved to add the following proviso, to follow after the section just adopted; which would have the effect to keep that portion of country taken possession of under the President's proclamation, subject to future negotiation: "_Provided_, That nothing herein contained shall be so construed as to prevent that portion of the Territory comprehended within the said boundary, formerly composing a part of the country known by the name of West Florida, being subject to future negotiation on the part of the United States." Mr. CLAY (Speaker) said that in offering this amendment to the committee, he confessed he was actuated rather by a disposition to accommodate the views of other gentlemen, than from any difficulty which he felt on the subject himself; for, with respect to our title to West Florida, he thought it utterly impossible that any gentleman could examine that question without suffering other considerations to mingle in the investigation, and not be thoroughly convinced that the title was in the United States: and he confessed that were he to consult his own views only, he should not hesitate a moment in making an unqualified annexation of that territory to the States to be formed of the Orleans and Mississippi Territories. But as some gentlemen, adverting to the President's Proclamation for taking possession of that country, had supposed that some difficulty might arise under it from such a procedure, in order to quiet these apprehensions, he had submitted this proviso. The right of the General Government to destroy the integrity of a State having been questioned, it would be well to guard against any difficulty on that score by a reservation to the General Government of the power to negotiate on the subject of this territory. At the same time he made this proposition, Mr. C. utterly disclaimed the idea that in any possible state of things ought this country to be ceded away. He considered the possession of West Florida as indispensable to the interests and prosperity of the Western States, and so far to the integrity of the Union; and he should as soon see a part of the State which he represented ceded away as this territory. What, he asked, was the extent of the country in question? In breadth, about twenty miles; in length, about two hundred, binding to that extent our southern frontier. The danger of having provinces of a foreign power on our frontier is too well disclosed by the late communication of the President (concerning Henry's mission)--a disclosure which must combine in the execration of the project it developed, every man in the country, and every honest man in every country. Suppose the former dynasty of Spain to be reinstated on the throne, it could not desire, for honest purposes, the possession of West Florida. In proposing the amendment, Mr. C. said it was merely his object to make the acts of the Legislative body tally with the proclamations of the President. If, therefore, contrary to his firm conviction, it should be determined that we have not the title, he had no idea that even in that state of things the territory would be given up, but that an equivalent should be given for it. Mr. C. said he fully approved the boundary established for the new State of Mississippi by the section just agreed to, so far as it operated on the Florida Territory. It gave to the State of Louisiana about three-fourths, perhaps four-fifths, of the population of the whole territory--a population homogeneous to the character of the country--American in principle and feeling; and with pleasure he had seen the convention of the Orleans Territory, in requesting this annexation, display a liberality of sentiment in desiring a further American population, which he trusted would be reciprocated by Congress. Although the State of Louisiana could not be gratified by the annexation of the whole territory, their desires would be gratified to a considerable extent by giving them all that portion of it lying west of Pearl River. The acquisition of the valuable settlements on the high lands, and their hardy population, would satisfy all the material wishes of the State. By this addition they would give to the new State of Louisiana the entire control of the Lakes Maurepas and Pontchartrain, by which the city of New Orleans may be most easily approached; you thus enable the State to take all necessary means to repel invasion. You effect another object, said Mr. C. There is not any very great natural connection between the people immediately on the bay of Mobile and Tombigbee River, and those on the Mississippi. If there be any connection, it is an artificial one, resulting from the preponderancy of capital at New Orleans, and will be lessened whenever there shall be a commercial capital at Mobile. I am therefore anxious to unite the territory east of Pearl River, including the bay of Mobile, to the Mississippi Territory, to which it is naturally connected; and, Mr. C. said, he had no hesitation in declaring that either Pearl River or the Pascagoula ought to be the boundary which is to separate the two parts of the country respectively to be attached to the States of Louisiana and Mississippi--the Pearl River, upon the whole, would be the best, as dividing the territory in about equal portions. Mr. C. concluded by expressing his satisfaction that this subject had been taken up, and that the amendment proposed by the delegate from Mississippi had obtained, which he hoped would finally pass, &c. Mr. RHEA said that the amendment proposed by the honorable Speaker to him appeared strange. I, said Mr. R., do firmly believe that the title of the United States to the country west of the Perdido River, named West Florida, is good and valid to all intents and purposes; and, therefore, I will not vote for a proposition which will evince a doubt relative to the sufficiency of that title. But it is said that the proclamation of the President has declared the same principle that the amendment proposes. That may be, but that is no law; that proclamation is not law, nor is the Legislature of the United States bound by it, unless they intend to adopt a principle similar to that used in Great Britain, where the King and Council can issue an edict having the force of law. This principle ought not to be established under the constitution of this nation. But the domineering interference of the British Government relative to West Florida, if there was no other reason, ought to be cause sufficient to reject this offered amendment; that interference of a Government which has no possible right or title to the country in question, will be, in a manner, sanctioned by the offered amendment. On these three points, then, the amendment ought to be rejected: first, that it goes to shake the solidity of the title; second, that it goes to sanction an opinion, that a preceding proclamation of the President of the United States is obligatory on the Congress of the United States; and, third, that the amendment, if agreed to, will go to authorize an opinion that the domineering interference of Great Britain, in respect to the country in question, was right and proper. Against these points I will, said Mr. R., hold up my hand--and therefore will vote against the offered amendment. Mr. MITCHILL observed, that our minister who negotiated the purchase of Louisiana had been repeatedly told by Talleyrand, in the course of the negotiation, that the French intended to cede the country of West Florida; so that it had been not only purchased, but understood to have been purchased. His certainty of the completeness of our title was such, that he was unwilling to do any act which should recognize the existence of a doubt on the subject, and he was therefore opposed to the proviso. At the same time he had no objection to the amendment just agreed to; he was willing that the people on the Tombigbee and Alabama Rivers should have free access to the ocean, and thus do away all artificial distinctions which had been made by a foreign power whilst the territory had been in its possession. Mr. MACON was well satisfied with the amendment proposed; for he could not have consented to vote for this bill without the proviso, or something like it. Hitherto this Government had done every thing it could to preserve peace. The embargo and all the restrictive measures had in view to preserve peace; and peace would always be best maintained by a due regard to public faith. If a territory be incorporated into a State, it was the opinion of Mr. M. that neither the President nor Senate have a right to give it up. It had never been understood by any party, under our constitution, that under the treaty-making power the President would cede one inch of a State. Convenient although the territory is to us, and though we have possession, and it is said no pledge has been given in relation to it, yet it appeared to him that the proclamation held out the idea that we held it until an opportunity was afforded for negotiating on equitable terms. Mr. M. said he was willing to acknowledge that he had not examined the title in the same manner as the Speaker and the gentleman from New York had done, so as to enable him to pronounce on it with certainty; but the title did not come into the question on the present point. Had we, when all the rest of Louisiana was surrendered to us, obtained possession of Florida? No, we had not. It appeared to have been at least a doubtful question whether we obtained a title to it or not. What had been stated by the gentleman from New York, of Talleyrand's declaration to our Plenipotentiaries, had not much weight, because a claim was now set up to it not by France but by the Spanish Government. The proviso under consideration, whilst it could not in any degree invalidate our claim, did away the objections in his mind to the proposed annexation of territory. If the territory was once annexed to the State, without reservation or condition, they might as well hereafter attempt to cede away Boston or Old Plymouth, as that Territory. Mr. WRIGHT spoke against the amendment at considerable length. Mr. CLAY replied; and Mr. RHEA rejoined: When the question was taken on the proviso, which was adopted without a division. The bill having been reported to the House, and the House having agreed to take up the same, an adjournment took place. FRIDAY, March 13. _Mississippi Territory._ The House resumed the consideration of the unfinished business, viz: the report of the Committee of the Whole on the bill for enabling the people of Mississippi Territory to form a constitution and State government. The amendment changing the boundary of the Territory, &c., moved by Mr. POINDEXTER, together with Mr. CLAY'S proviso, were agreed to without a division. The question on the bill being engrossed for a third reading was decided without debate--yeas 67, nays 39, as follows: YEAS.--Willis Alston, jun., William Anderson, Stevenson Archer, David Bard, Burwell Bassett, William W. Bibb, Robert Brown, William A. Burwell, William Butler, J. C. Calhoun, Langdon Cheves, Matthew Clay, James Cochran, Lewis Condict, William Crawford, Roger Davis, John Dawson, Joseph Desha, Elias Earle, William Findlay, Meshack Franklin, Thomas Gholson, Peterson Goodwyn, Edwin Gray, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, Aylett Hawes, Jacob Hufty, John M. Hyneman, Joseph Kent, Abner Lacock, Joseph Lefevre, Peter Little, William Lowndes, Aaron Lyle, Thomas Moore, William McCoy, Samuel McKee, Alexander McKim, Arunah Metcalf, Samuel L. Mitchill, Jeremiah Morrow, Hugh Nelson, Anthony New, Thomas Newbold, Thomas Newton, Israel Pickens, James Pleasants, jr., Henry M. Ridgely, Samuel Ringgold, Jonathan Roberts, William Rodman, Ebenezer Sage, Ebenezer Seaver, Samuel Shaw, Daniel Sheffey, Richard Stanford, William Strong, George M. Troup, Charles Turner, jr., Robert Whitehill, William Widgery, Thomas Wilson, and Richard Wynn. NAYS.--Ezekiel Bacon, John Baker, Abijah Bigelow, Harmanus Bleecker, Adam Boyd, James Breckenridge, Elijah Brigham, Epaphroditus Champion, Martin Chittenden, John Davenport, jr., William Ely, James Emott, Asa Fitch, Richard Jackson, jun., Lyman Law, Joseph Lewis, jun., Robert Le Roy Livingston, James Milnor, Jonathan O. Mosely, Joseph Pearson, Timothy Pitkin, jun., Benjamin Pond, Peter B. Porter, Josiah Quincy, William Reed, William M. Richardson, Thomas Sammons, John Smilie, George Smith, Philip Stuart, Silas Stow, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Uri Tracy, Pierre Van Cortlandt, jun., Laban Wheaton, Leonard White, and Robert Wright. The bill was then ordered to be read a third time on Monday next. MONDAY, March 16. _British Minister's Disclaimer of all Knowledge of John Henry's Asserted Mission._ The following message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I lay before Congress a letter, from the Envoy Extraordinary and Minister Plenipotentiary of Great Britain, to the Secretary of State. JAMES MADISON. MARCH 13, 1812. WASHINGTON, _March_ 11, 1812. The undersigned, His Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary to the United States, has read in the public papers of this city, with the deepest concern, the Message sent by the President of the United States to Congress on the 9th instant, and the documents which accompanied it. In the utter ignorance of the undersigned as to all the circumstances alluded to in those documents, he can only disclaim most solemnly, on his own part, the having had any knowledge whatever of the existence of such a mission, or of such transactions as the communication of Mr. Henry refers to, and express his conviction, that, from what he knows of those branches of His Majesty's Government with which he is in the habit of having intercourse, no countenance whatever was given by them to any schemes hostile to the internal tranquillity of the United States. The undersigned, however, cannot but trust that the American Government, and the Congress of the United States, will take into consideration the character of the individual who has made the communication in question, and will suspend any further judgment on its merits until the circumstances shall have been made known to His Majesty's Government. The undersigned requests the Secretary of State to accept the assurance of his highest consideration. AUGUSTUS J. FOSTER. The Message having been read, was, on motion of Mr. NEWTON, referred to the Committee on Foreign Relations, and ordered to be printed. WEDNESDAY, March 18. _State of Louisiana._ The House resolved itself into a Committee of the Whole, on the bill for the admission of the State of Louisiana (now Orleans Territory) into the Union, and for extending the laws of the United States to the same. The several blanks in the bill having been filled-- Mr. POINDEXTER observed, that it appeared to have been the sense of this House, when the bill for erecting the Mississippi Territory into a State was under consideration, that the portion of the territory taken possession of under the President's proclamation (known by the name of West Florida) which lies West of Pearl River, should be added to the State of Orleans. The constitution had provided that new territory might be added to the States with their consent. As it was not provided by the constitution which party should first assent, he presumed it was not material; and, as this appeared to be the proper moment for fixing the boundary, he was induced to offer the following amendment to the bill. "_And be it further enacted_, That so soon as the consent of the Legislature of said State shall be given to the same, all that tract of country lying within the following boundaries, to wit: beginning at the junction of the Iberville, with the river Mississippi; thence through the middle of the Lakes Maurepas and Pontchartrain, to the western junction of Pearl River, to Lake Pontchartrain; thence up said river to the thirty-first degree of latitude; thence along said degree of latitude to the river Mississippi; thence down the same to the beginning; be, and the same is hereby incorporated in, and made a part of said State, and shall be governed by the constitution and laws thereof, in the same manner as if it had been included within the original boundaries of said State. _Provided, nevertheless_, That the title of the United States to said tract of country shall be and remain subject to future negotiation." Mr. DAWSON said this question had been agitated in the select committee, but it had appeared proper to them that this addition of territory should be made the subject of a separate law. If they went so far, they must go farther still into details. He thought it better that the law accepting the constitution should be as simple as possible. Mr. CLAY (Speaker) could not view the subject in the same light, he said, as the gentleman from Virginia; and although there had been a division of sentiment in the select committee, there certainly were some members of that committee in favor of the motion. But, could gentlemen imagine any difficulty growing out of making this section a part of the present bill, which would not equally arise if it were put in a separate bill? There could be no difficulty in either way; and in propriety, it appeared to him the course now proposed ought to be pursued. They were about to admit a new State into the Union. Should not the bill, which recognized it, present the whole limits of the State in one view, or would it be better to subject inquirers to the necessity of wading through two or three acts to find out the boundary of a single State? He hoped the motion would prevail. The motion was agreed to, 47 to 25. Mr. CLAY said he observed there had been no ordinance passed by the convention recognizing the freedom of navigation of the Mississippi. He had no idea that under any circumstances, the Legislature of the new State would impede the navigation; but the object was one so dear to the people of the Western country generally, that he wished to place it beyond the possibility of doubt. The amendment was adopted without a division. Mr. JOHNSON said, that as the matter now stood, the population of the Florida Territory attached to this bill would, although they are to compose a part of the new State, be deprived of a voice in the passage of the first laws, which are always the most important under a new government, and in the choice of Senators in Congress, which would be attended with the greatest hardship, as the population had been unrepresented for some time past, and complained of various grievances. He, therefore, moved an amendment to the bill, to divide the territory to be annexed to Louisiana into two counties, to be called Feliciana and Baton Rouge, each to send one Senator and one Representative. Mr. POINDEXTER wished the people of that country to be represented as much as the gentleman possibly could; but how could Congress in one breath say they should form a part of the new State as soon as its consent could be had, and in the next section declare, though by the very terms of the law they are not a part of the State, that they shall be represented in the Legislature of the State? Mr. CLAY said he had understood that a memorial was in the city, and would be presented to the House at the first opportunity, from the Convention of Orleans, praying the annexation of the territory in question to the new State. When that was before them, the committee would be better able to understand how far they could now proceed in sanctioning the representation of that territory in the Louisiana Legislature. He therefore moved that the committee now rise, report progress, and ask leave to sit again. Agreed to, and the committee rose. THURSDAY, March 19. _Disclosures of Mr. Henry._ Mr. PORTER, from the Committee of Foreign Relations, to whom was referred the Message of the President of the United States, transmitting the disclosures of Mr. Henry, a British Secret Agent, made the following report: The Committee of Foreign Relations, to whom was referred the President's Message, of the 9th instant, covering copies of certain documents communicated to him by a Mr. John Henry, beg leave to report, in part, that although they did not deem it necessary or proper to go into an investigation of the authenticity of documents communicated to Congress, on the responsibility of a co-ordinate branch of the Government, it may, nevertheless, be satisfactory to the House to be informed that the original papers, with the evidences relating to them in possession of the Executive, were submitted to their examination, and were such as fully to satisfy the committee of their genuineness. The circumstances under which the disclosures of Henry were made to the Government, involving considerations of political expediency, have prevented the committee from making those disclosures the basis of any proceeding against him. And, from the careful concealment, on his part, of every circumstance which could lead to the discovery and punishment of any individuals within the United States (should there be any such) who were criminally connected with him, no distinct object was presented to the committee by his communication for the exercise of the power with which they were invested, of sending for persons and papers. On being informed, however, that there was a foreigner in the city of Washington, who lately came to this country from Europe with Henry, and was supposed to be in his confidence, the committee thought proper to send for him. His examination, taken under oath and reduced to writing, they herewith submit to the House. The transaction disclosed by the President's Message presents to the mind of the committee conclusive evidence that the British Government, at a period of peace, and during the most friendly professions, have been deliberately and perfidiously pursuing measures to divide these States, and to involve our citizens in all the guilt of treason, and the horrors of a civil war. It is not, however, the intention of the committee to dwell upon a proceeding, which, at all times, and among all nations, has been considered as one of the most aggravated character; and which, from the nature of our Government, depending on a virtuous union of sentiment, ought to be regarded by us with the deepest abhorrence. [Document accompanying the above report.] FRIDAY, March 13.--_Count Edward de Crillon sworn._--This deponent knows Mr. Henry; he dined with him at Mr. Wellesley Pole's, in September, and afterwards at Lord Yarmouth's; met with him also at different fashionable clubs; deponent fell in with Mr. H. subsequently by accident; deponent had ordered his servants to procure him a passage for America; they met with Captain Tracy, of the ship New Galen, of Boston, at the New London Coffee House. After agreeing with him on the terms of the passage, Captain T. applied to deponent to know if he was ready to embark the next day, as the ship would sail on the following morning; deponent said no; that he should send his servants on board, but should take a post-chaise for Portsmouth, and pass over to the Isle of Wight, where he should wait for the vessel. On the day following he went accordingly to Portsmouth, but before his departure he received a letter from Captain Tracy, couched in the following terms: "Sir, you must go to Ryde, where you shall find a gentleman called Captain Henry, waiting for the New Galen; I shall send a boat on shore for both of you." Deponent went to Ryde, but did not find Captain H. there; thence he proceeded to Cowes, and inquired of the American Consul "if the New Galen had passed?" fearing that she had sailed without him. The Consul informed him that the ship was detained in the Downs by head winds; deponent returned to Ryde, and remained there three weeks alone before Captain H. arrived. Captain H. came to him and told him that the ship was badly found, and advised him to go to Liverpool and take the packet; deponent refused, having paid his passage and his trunks being on board. Captain H. three days after his arrival, fell sick; he kept his bed twenty-two days, during which time he was often delirious, frequently uttering the name of Lord Liverpool. The deponent having two servants, one of them attended on Mr. H. during his illness. He was visited by Mr. Powell, of Philadelphia, a Mr. Wilkinson, or Dickson, of the British army, and a Mr. Perkins, of Boston; he received above two hundred letters from a Boston house, [Higginsons,] in Finsbury Square, that had lately stopped payment. He refused to take the letters, giving them to the Captain. Mr. H. was also visited by a Mr. Bagholt, who brought him letters from Sir James Craig. Henry refused to receive those letters. He recovered from his sickness. Deponent occupying the most agreeable house in the place, Henry's physicians asked the favor of an apartment for him until he was ready to embark. After eight weeks' detention, the wind became fair, and the vessel sailed. The day before her departure, Mr. Bagholt arrived at Ryde, with letters from Lord Liverpool to Sir George Prevost, and to Mr. Henry, who, when he saw the seal of the letter addressed to him, said, throwing it on the table, "that is a letter from Liverpool; what more does he want of me?" He appeared to be much agitated, and retired to his room. Mr. Bagholt returned that night to London without taking leave; but the wind coming fair the next morning the ship sailed. Mr. Edward Wyer, and Mr. West, both of Boston, and a Mrs. Thompson, of London, were passengers in the ship. Henry at first appeared very low spirited, took a cabin to himself, and mostly dined alone. In good weather he employed himself in shooting pistols, at which he was very expert. One dark night, about ten o'clock, the witness was walking on deck much dejected, when Henry accosted him--"Count Crillon," said he, "you have not confidence in me; you are unhappy; confide your sorrows to me." He spoke so kindly that deponent made him in part acquainted with his situation. He replied, "one confidence deserves another; I will now tell you _my_ situation. I have been very ill-treated by the British Government. I was born in Ireland, of one of the first families in that country, poor, because a younger brother. I went to America with expectations from an uncle, (Daniel McCormick, Esq., of New York,) who possesses a large fortune, is old and unmarried. French persecution having exiled from that country many of the respectable families of France, I married a lady of that description, who died, and left two daughters without fortune. I applied to the American Government, and through the influence of the British Minister I was appointed captain of artillery during Mr. Adams's Administration. I had command at Portland, and at the fort near Boston, and while in commission, I was employed in quelling a meeting or insurrection among the soldiery, and during my continuance in office I gave general satisfaction. But perceiving there was no field for my ambition I purchased an estate in Vermont, near the Canada line, and there studied law for five years without stirring from home. I detest republican government, and I filled the newspapers with essays against it." SATURDAY, March 14.--_Count C. in continuation._ Deponent says that Henry told him in the course of his interview, which he mentioned yesterday, that the severity of his strictures in the public prints against republican government attracted the attention of the British Government. "Sir James Craig," continued he, "became desirous of my acquaintance. He invited me to Quebec, where I staid some time. Hence I went to Montreal, where every thing I had to fear, and all I had to hope, was disclosed to me. I went afterwards to Boston, where I established my usual residence. I was surrounded by all the people pointed out to me by the agents who were under my orders. I lived at the Exchange Coffee House, gave large parties, made excursions into the country, and received an order extraordinary from Sir James Craig to dispose of the fleet at Halifax, and of the troops, to further the object of my mission, if required. My devotion to the cause was extreme. I exhausted all my funds. I spent many precious years in the service; and was advised to proceed to London. The Government treated me with great kindness. I was received in the highest circles; was complimented with a ticket as member of the _Pitt Club_, without being balloted for. And when I had spent all my money, and presented my claims for retribution, the Government attempted to cheapen my services, [_marchander_,] to beat me down. My claims were to the amount of £32,000 sterling. I was told, however, that I should be provided for, by a recommendation to Sir George Prevost, in case I would return to Canada, and continue my mission and services as before; and to exercise the same vigilance over the interests of the British Government. At the same time, the Government appointed a friend of mine, an Irish gentleman, Attorney General for Canada, through my influence." [Deponent saw this gentleman at Mr. Gilbert Robertson's in New York.] Henry continued: "Disappointed in my expectations, I was impatient to proceed to Canada to sell my estates and my library, and take my revenge against the British Government. I knew that if I went to Canada I must deliver up my despatches, and that I should afterwards be put off by the Government. I, therefore, determined to retain the documents in my possession, as the instrument of my revenge. Determined to extricate myself from my embarrassing connection with the British Government, I refused the offer of a passage to Halifax in one of their ships of war, and determined to live privately and retired at Ryde, and take passage in the first vessel that should sail for the United States. This is the cause of your meeting me at Ryde." Deponent represents to Henry, "That England was his legitimate Government; that he would render himself the most odious of all characters by betraying it; that his (the deponent's) Government had treated him harshly, and that he then labored under its displeasure, but no consideration should induce him to act against it; that we must not resent a parent's injuries; tells him to have patience, and wait for his reward." Henry then pleaded in his justification the wrongs of his native country--Ireland--inflicted by the British Government. Henry came down to Washington, and stopped at Tomlinson's, where deponent saw him. He afterwards removed to Georgetown, to the house of one Davis, an auctioneer, where the deponent visited him every day, and found him always occupied. Deponent waited for his disclosures, not having any disposition to pry into his secrets; but Henry was entirely silent, and incessantly sighing very deeply. On the day of General Blount's funeral, deponent took Henry down to Alexandria, in expectation that he might communicate his projects; but he was still reserved. After dinner they returned, and while in the carriage, Henry tells deponent "that he has great confidence in him; that he (deponent) has been here some time, and asks his opinion of Mr. Monroe." Deponent answered that he was very little acquainted with any body, but thought Mr. Monroe a most virtuous and respectable man. Deponent remained several days without hearing any thing more, until one morning at 7 o'clock, Henry came into his apartment and said--"Crillon! you must sell me St. Martial," [an estate of the deponent's in Lebeur, near the Spanish frontier;] "you have the title papers with you. My name will be rescued from oblivion by living near _Crillon_, the habitation of your ancestors, and of a man who has been my friend." Deponent answered that he had no objection; and, if Henry on seeing the property was not satisfied, he would give orders to his agent in France to cancel the bargain. The conveyance was accordingly made.[27] Henry left deponent, when Mr. Brent, to whom Henry was not introduced, came into the deponent's apartment. About this time, deponent received four anonymous threatening letters, and was advised by his friends that he was surrounded by spies; but he told them that he had nothing to fear--that he was "_sans peur et sans reproche_." By one of these letters I was advised to leave the city before 12 o'clock, as a person had just arrived from London with orders to arrest me. Meanwhile rumors circulated very generally to the deponent's prejudice, and he was under the necessity of vindicating his character, and of correcting the author of those reports. The Message of the President gave the deponent the first intelligence of the true state of the transaction. Henry told the deponent that a Mr. Gilvary, or Gillivray, from Quebec, had come to him at New York, to persuade him to go to Canada; but Henry said "he would not--that the Rubicon was passed." Henry kept the first company at Boston. Being questioned if Henry had mentioned the names of any person with whom he had conferred? deponent answered "None." Deponent landed at Boston, December 24, 1811; staid there about ten or twelve days. Visited Governor Gerry twice. Question--Do you know where Henry is now? Answer--No. By report, I hear he is in New York. Deponent left Boston in the public stage. Henry was also a passenger. But at New Haven deponent took a private carriage to himself. COUNT E. DE CRILLON. The report having been read, was, on motion of Mr. PORTER ordered to lie on the table. FRIDAY, March 20. _Admission of Louisiana._ The bill for the admission of the State of Louisiana into the Union, and to extend the laws of the United States thereto, was read a third time, and passed, without debate--yeas 79, nays 23, as follows: YEAS.--William Anderson, Stevenson Archer, Ezekiel Bacon, David Bard, Burwell Bassett, William W. Bibb, William Blackledge, Adam Boyd, James Breckenridge, Robert Brown, William A. Burwell, William Butler, Matthew Clay, Lewis Condict, William Crawford, Roger Davis, John Dawson, Samuel Dinsmoor, William Findlay, James Fisk, Meshack Franklin, Thomas Gholson, Thomas R. Gold, Peterson Goodwin, Edwin Gray, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, Aylett Hawes, Jacob Hufty, John M. Hyneman, Richard M. Johnson, Philip B. Key, William R. King, Abner Lacock, Peter Little, William Lowndes, Aaron Lyle, William McCoy, Samuel McKee, Alexander McKim, Arunah Metcalf, Samuel L. Mitchill, Jeremiah Morrow, Hugh Nelson, Anthony New, Thomas Newbold, Thomas Newton, Stephen Ormsby, Israel Pickens, James Pleasants, jr., Benjamin Pond, William M. Richardson, Henry M. Ridgely, Samuel Ringgold, John Rhea, John Roane, William Rodman, Ebenezer Sage, Ebenezer Seaver, Samuel Shaw, Daniel Sheffey, John Smilie, George Smith, John Smith, Richard Stanford, Samuel Taggart, John Taliaferro, Uri Tracy, George M. Troup, Charles Turner, junior, Pierre Van Cortlandt, junior, Robert Whitehill, David R. Williams, Thomas Wilson, Robert Wright, and Richard Wynn. NAYS.--Harmanus Bleecker, Epaphroditus Champion, Martin Chittenden, William Ely, James Emott, Asa Fitch, Richard Jackson, junior, Lyman Law, Joseph Lewis, junior, Robert Le Roy Livingston, James Milnor, Jonathan O. Mosely, Joseph Pearson, Timothy Pitkin, junior, Josiah Quincy, William Reed, Thomas Sammons, Adam Seybert, Philip Stuart, Lewis B. Sturges, Benjamin Tallmadge, Laban Wheaton, and Leonard White. TUESDAY, March 24. _Limitation of Claims on the Government._ The House proceeded to consider the report of the Committee of the Whole on the following resolution: "_Resolved_, That it is expedient to make provision by law for the payment of the following descriptions of claims, to wit:--1. Loan office certificates; 2. Indents of interest on public debt; 3. Final settlement certificates; 4. Commissioners' certificates; 5. Army certificates; 6. Credits given in lieu of army certificates cancelled; 7. Credits for the pay of the army for which no certificates were issued; 8. Invalid pensions; 9. Lost or destroyed certificates--notwithstanding any statute of limitation to the contrary, under such restrictions as shall insure payment only to the original claimant, his heirs, executors, or administrators." The resolution was agreed to, and referred to the Committee of Claims to bring in a bill pursuant thereto. _French Spoliations._ Mr. PITKIN said that he held in his hand a statement and representation, on oath, of Captain Samuel Chew, of New Haven, in the State of Connecticut, which he would beg leave to present to the House. Captain Chew states, that he was supercargo on board the brig Thames, and on the 19th of January, 1812, sailed from St. Ubes, bound to New Haven, with a cargo of salt and fruit; that on the 2d of July following, the brig was taken possession of by a French squadron, consisting of two frigates of forty-four guns each, and a sloop of war of sixteen guns, under the command of Commodore Forretin, and that he was told by the officer boarding him, that the brig would be burnt the next morning. That the officers of the squadron informed him that they sailed from Nantes on the 8th of January. That on board the French vessels were the crews of the ship Asia, from Philadelphia, bound to Lisbon, and of the brig Gershom, of Duxbury, last from Boston, bound to Oporto, both laden with corn and flour. That the officers of the squadron informed him, that, on the 17th and 23d of January, they had captured and burnt the ship Asia and brig Gershom. He also states that he inquired of the Commodore the reasons of burning them, and was informed by him that he had orders from the Government to burn all American vessels sailing to or from an enemy's port. That, on the 3d of February, the Commodore put on board the Thames the captains and crews of the vessels burnt, being thirty-seven in number, to be landed in the first port, and that, on the 16th day of July, he landed them at St. Bartholomews. Captain Chew states likewise, that when the Commodore released the Thames, he gave him a document or writing, subscribed with his own hand, and written in the French language, and which is annexed to his statement. This document contains a list of names of the men composing the crews of the vessels captured; it also states that they were captured on voyages from Philadelphia and Boston to Lisbon, laden with grain and flour, by the division under the command of Monsieur Forretin, Member of the Legion of Honor, and that they were captured in pursuance of the instructions of the Minister of Marine and the Colonies. Mr. P. said that this statement, with the original document annexed, in the French language, and under the hand of the commodore of the squadron, had been forwarded here, for the information of the Government; that the character of Captain Chew was such as to entitle him to full credit wherever he was known. Believing, therefore, as he did, in the truth of these statements, and that the document annexed is genuine, he thought it his duty to present it to the House for their information. The House, after hearing them read, can dispose of them by referring them to the Secretary of State, or otherwise, as they may think proper. The papers presented by Mr. PITKIN having been read, Mr. MCKIM moved that they lie on the table until time should be afforded for the arrival of those persons in the United States whose testimony might confirm the facts stated. Mr. PITKIN also wished them to lie on the table, that they might be examined by gentlemen, and receive that attention to which the importance of their contents might entitle them. The papers were accordingly ordered to lie on the table. THURSDAY, April 2. _Virginia Military Bounty Land._ Mr. NELSON, from the committee to whom the subject had been referred, made a report, concluding with the following resolution: _Resolved_, That provision should be made for securing to both officers and soldiers of the Revolutionary army of Virginia on that establishment, in the land or sea service of the said State, the county lands which were promised to them, either by law or resolution of the said Commonwealth, out of the lands not otherwise appropriated, and lying on the northwest of the river Ohio, within the Virginia cession, to be of good quality, according to the true intent and meaning of the promises made on the part of Virginia; and that if a sufficiency of good land, within the meaning aforesaid, cannot there be found, that these bounties shall be satisfied out of any other public lands of the United States not otherwise appropriated. The report was referred to a Committee of the Whole. MONDAY, April 6. _Publication of Secret Proceedings._ Mr. GRUNDY, from a committee which had been appointed while the House was sitting with closed doors, made the following report: The committee, to whom was referred the resolution directing an inquiry to be made, whether there has been any, and if any, what violation of the secrecy imposed by this House, during the present session, as to certain of its proceedings, have, according to order, proceeded in said inquiry, and beg leave to state, that, under the authority with which they were invested by the House, they have caused to come before them four witnesses, whose testimony on oath is as follows, to wit: Charles Prentiss states that he furnished to the editors of the "Spirit of Seventy-six," a paper printed in Georgetown, the paragraph giving an account of the proceedings of the House of Representatives, while sitting with closed doors, on the subject of the embargo; and he further says, that he did not receive the information, or any part thereof, which enabled him to write said paragraph, from any member of Congress or officer of the House. Upon being interrogated, he states that he received the whole of his information from Nathaniel Rounsavell, one of the editors of the Alexandria Herald; that he received it on Wednesday late at night, and he asked of Mr. Rounsavell whether the injunction of secrecy had been removed. Rounsavell replied that he had not inquired. On Thursday morning the witness spoke to some of the members on the subject, and from their conduct he was satisfied that the injunction of secrecy had not been removed; notwithstanding which, the witness sent the paragraph above alluded to, to the editors of the Spirit of Seventy-Six on Thursday. John M. Carter and James B. Carter, editors of the "Spirit of Seventy-Six," state that they received from Mr. Prentiss, in writing, the statement which appeared in their paper; that they received no information on the subject from any member or officer of the House. Nathaniel Rounsavell, upon being interrogated, says he composed the paragraph which appeared in the Alexandria Herald of Friday last, containing a statement of the secret proceedings of the House of Representatives upon the subject of the embargo; that he on Wednesday night, after the adjournment of the House, derived a part of the information, on which he was enabled to give the detailed account, from the conversation of members of the House with whom he accidentally fell in company; that he was acquainted with the members, and they with him; they knew he was present; he partook in some degree in the conversation. Question by the committee--From the conversation of what members did you collect the information of which you have spoken? The witness refused to answer the interrogatory. Question 2--At what place was the conversation held? Witness refused to answer. Question 3--Have you seen the members alluded to, or any of them, since you first appeared before this committee on Saturday last? Witness likewise refused to answer this interrogatory. Whereupon it is ordered by the committee that the Sergeant-at-Arms detain said Rounsavell in his custody until the pleasure of the House of Representatives relative to the conduct of said witness can be ascertained. After the report was read, Mr. GRUNDY offered the following resolution for consideration: "_Resolved_, That the Sergeant-at-Arms be directed to bring the said Nathaniel Rounsavell to the bar of the House, there to answer such questions as may be propounded to him by the Speaker, under the direction of the House." Much desultory discussion took place as to the mode of proceeding in this case, the form of the proposed order, its conformity to precedent, &c., in which Messrs. PITKIN, LACOCK, SHEFFEY, TROUP, TALLMADGE, GRUNDY, FISK, and WIDGERY, took part. This discussion resulted in the proposition of a preamble to the motion, by Mr. GRUNDY, reciting the grounds of the order. The motion was then agreed to. On motion of Mr. GRUNDY, the select committee were then discharged from the further consideration of the subject. On motion of Mr. GRUNDY, it was resolved that several interrogatories contained in a paper which he offered to the House, should be proposed to the witness. Mr. BURWELL suggested the propriety of allowing this person counsel; but withdrew the suggestion, on its being remarked, that this person appeared before the House in the character of a witness, not a criminal, and that it was not usual for a witness to appear by counsel. Mr. Rounsavell was then brought to the bar of the House by the Sergeant-at-Arms. After some hesitation on the part of the witness to take the oath required, he was sworn, in the usual form of oath administered to witnesses. The first interrogatory agreed to by the House was put to him by the Speaker, in the following words: "From the conversation of what members did you collect the information of which you have spoken in your deposition before the committee?" To this question the witness answered in these words: "I refused to answer that question when before the committee, and I continue steadfast in that refusal." The witness was ordered to withdraw, and the Speaker reported his answer to the House; having deemed it unnecessary, on his refusal to answer the first, to propound any other of the questions. Mr. SEYBERT, after stating his indisposition to encroach on the rights of the citizen, which, however, must yield to the superior rights of the nation, which required them to act in this case, suggested the propriety of recommitting this person to the custody of the Sergeant-at-Arms until further order should be taken by the House, and preventing him in the mean time from communicating with those from whose conversation he might have derived his information. With this view he offered the following resolution: _Resolved_, That Nathaniel Rounsavell be committed to the custody of the Sergeant-at-Arms until further order, and that in the mean time he be precluded from all intercourse or conversation with any person or persons other than the Sergeant-at-Arms. The question on striking out so much of the motion as precludes the witness from conversation with any one unless in the presence and hearing of the Sergeant-at-Arms, was decided as follows--yeas 62; nays 22. The question was then stated on the motion as just amended, viz: "That Nathaniel Rounsavell be committed to the custody of the Sergeant-at-Arms until the further orders of the House." The question was taken on the resolution, and it passed by a very large majority. TUESDAY, April 7. _Publication of Secret Proceedings._ A letter was laid before the House from Nathaniel Rounsavell, the witness now in the custody of the Sergeant-at-Arms. The letter disclaims any intention to have violated the respect due to the House by the publication which he had made; it declares that the conversation which the writer had was inadvertent, as he believes, on the part of the members who partook in it, and entirely without any intention on their part, as he believes, to violate the order of the House; that he had been refused by the committee an opportunity to explain his testimony; and that his only motive for refusing to answer was, that if he were to answer the question as propounded to him, it might have the effect of criminating those who had committed no crime, and from whose conversation, but for previous and subsequent knowledge, he could not have ascertained that an embargo had been the subject of discussion, &c. Mr. SMILIE said it was in his power, he believed, to make a statement to the House which would procure a discharge of this man. Had the original motion succeeded yesterday, he should then have risen and stated what he was now about to say, because he had been determined that the man should not suffer. I do believe, said Mr. S., that the substance of the information which Mr. Rounsavell published in his paper, he did derive from conversation of myself with others; whether he got other particulars from other members, I know not. The circumstance was this: The night the embargo law passed this House, I met with a member who was absent, and ignorant of what had passed. Upon meeting with this gentleman he inquired of me what had been done? I briefly told him, and I have reason to believe Mr. Rounsavell was in such a situation as to hear what I said. Having made this statement, I will make a few other remarks. I had a seat in Congress when each of the former embargoes under this constitution were laid. The mode in which they came before the House was in those cases such as to enable us to keep them secret. In every instance except the present, the first intimation relative to the embargo came from the President to the House in a confidential shape, and the doors were immediately closed. What was the fact in this case? The measure originated in the Committee of Foreign Relations. It was proposed there that it should be kept secret; when a member of the committee rose and declared he would not be bound--he would not keep it a secret. This destroyed at once the efficacy of any such determination on the part of the committee; we might as well have discussed the subject with open doors as with closed doors, had it not been from respect to the Message of the President recommending a different course. What was published in the _Herald_, therefore, was of no importance; when the subject of discussion was known to all, it was of very little consequence to know who was chairman, and who spoke, and how many voted. If the House must have a victim, and it appears to me some gentlemen would be very willing to have one, I offer myself in the room of this man; he has suffered too much already. The _quo animo_ constitutes the essence of every crime; it cannot then be supposed, after the warm support I have given to this measure, that I could have any unfriendly intention towards it. I well know the powers of this House; and I know the limits of those powers. The House will take such steps as they think proper. I have taken my ground; I am prepared for the event. He would further observe that in relation to the suspicion of members having influenced Rounsavell to refuse to answer, that he had not seen him from the time of the conversation he had stated until after his appearing before the committee and refusing to answer. Mr. Smilie was asked to name the member of the Committee of Foreign Relations, to whom he had just alluded, and replied that his name was no secret--it was Mr. Randolph. Mr. CALHOUN said that the member of the Committee of Foreign Relations, (Mr. RANDOLPH,) to whom allusion had been made, not being in his seat, he would state how the fact just stated had occurred in the committee. That gentleman stated (said Mr. C.) that he had doubts of the power of the committee to compel him to secrecy; but the gentleman also stated that he had just returned from Baltimore, where he found the British Consul possessed the knowledge of an intended embargo, and that a great commercial house was acting on it, and therefore he did not feel it his duty to keep it secret. I, sir, was the one who made the motion that our proceeding should be confidential. After the statement made by the gentleman from Virginia, that he should feel it his duty to proclaim the fact, combined with other circumstances, I did not feel so strongly the obligation, and the motion for secrecy was waived. Under the impression that it was no longer a duty to confine the knowledge of this transaction to the bosom of the committee, I mentioned it to the gentleman from Boston and other commercial cities, that they might be aware of the transaction; I did it from a sense of duty, that they might be as well informed on this head as other members of the House. Mr. QUINCY rose to state the circumstances as they had occurred on the day alluded to, and he had it in his power to do so, because, anticipating that some difficulty might arise, and wishing to relieve himself from blame, he had on the morning after the occurrence, committed it to paper, as follows: "MARCH 31, 1812. "MEMORANDUM.--Mr. Calhoun, of South Carolina, a member of the committee of Foreign Relations, this day informed me that 'the Committee of Foreign Relations had come to a determination that an embargo should be proposed to Congress for its adoption to-morrow.' I asked him if I was at liberty to mention this as a fact from him. He replied that 'I was at liberty.' He said 'that the gentlemen of the committee were generally of opinion that the subject should be kept secret. But Mr. Randolph,[28] one of the committee, had declared that he would not consider himself bound to any such obligation. The committee, therefore, had thought that it was but fair to give an equal chance to all the gentlemen in Congress. And that he informed me of the fact, as a member from a commercial town, in order that I might communicate it to my mercantile friends.' "I soon after went to him and asked him, 'whether the embargo would come as an Executive recommendation.' He replied, 'I do not deem myself authorized to answer that question.' "I find the same information has been communicated by other members of the committee to various members of Congress. "JOSIAH QUINCY." Mr. SEYBERT said, after what had been stated by his colleague, it was very evident that the information which had found its way to the public had been inadvertently communicated by a member; and he hoped the House was satisfied with the result. When he made the original motion, yesterday, for detaining this person, Mr. S. said he was desirous of a modification of it; he had not contemplated so rigorous a confinement as it would perhaps have comprehended. He was now perfectly satisfied, and considered it his duty to move that the witness be discharged from the custody of the Sergeant-at-Arms. Mr. ROBERTS was opposed to discharging the witness until he had explained a sentence of his letter to the Speaker, in which he had asserted that he was not permitted to explain his testimony. The fact was, that the committee had acted with the greatest patience and liberality towards the witness, and extended to him every indulgence in their power, and his assertion was therefore unwarranted. Mr. MACON, in the absence of Mr. RANDOLPH, thought proper to remark that he had heard of the embargo in Baltimore, and the report had brought him here. It appeared, then, it was no secret at all. This was the first instance, indeed, Mr. M. said, in this Government in which a committee had undertaken to make a secret for itself. No such power of a committee was recognized by the House. Being confidentially referred by the House to a committee, they must in that case act on it in the same manner; otherwise there was, perhaps, no obligation. He did not believe there was a man in the nation who would be farther from doing a dishonorable act than the gentleman from Virginia, whose name had been called in question. Mr. SEYBERT said, after what had passed, he presumed every one was satisfied there was no occasion to pursue the inquiry, and as the witness had submitted to the authority of the House, he moved the following resolution: "_Resolved_, That Nathaniel Rounsavell, now in the custody of the Sergeant-at-Arms of this House, for a contempt of its authority in not answering the questions propounded to him by order of the House, having submitted to answer, and purged himself from the contempt, be discharged from said confinement." The question was then taken on Mr. SEYBERT'S motion, and carried without opposition; and the Sergeant-at-Arms was ordered to discharge the witnesses from confinement; and then, on motion, the House adjourned until to-morrow. THURSDAY, April 9. _Importation of British Goods._ The House resolved itself into a Committee of the Whole on the bill to authorize the importation of goods, wares, and merchandise, under certain circumstances, from Great Britain, her colonies or dependencies. _Removal of Federal Judges on Address of Congress._ AMENDMENT OF THE CONSTITUTION. Mr. MCKIM offered to the House the following resolution, premising that he had been particularly induced to offer it, by considerations resulting from the present state of things in the State of New York, arising from the disability of the District Judge, by which upwards of seven hundred suits were kept in suspense, to the great injury of individuals and prejudice of the Government. In order to remedy that difficulty, a bill had passed both Houses, which had been returned by the President as objectionable on constitutional grounds. It had been pronounced on this floor, by a respectable law authority, that if that bill was rejected there was no other remedy. He, therefore, had been induced to offer the following resolution: _Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_: (two-thirds of both Houses concurring,) That the following section be submitted to the Legislatures of the several States, which, when ratified by the Legislatures of three-fourths of the States, shall be valid and binding as a part of the Constitution of the United States: "_Resolved_, That the Judges of the Supreme and Inferior Courts may be removed from office, on the joint address of the Senate and House of Representatives of the United States." The resolution was ordered to lie on the table, and to be printed--44 to 33. _Louisiana Lead Company._ The House resolved itself into a Committee of the Whole, on the bill to incorporate Moses Austin, Henry Austin, John R. Jones and others, in the Territory of Louisiana, by the name of the Lead Company of Louisiana. After considerable debate, the first section of the bill was stricken out, on motion of Mr. TROUP. The question on concurrence with the committee was decided by yeas and nays. For concurrence 46, against concurrence 43. And so the said bill was rejected. TUESDAY, April 14. _Cumberland Road._ Mr. MORROW, from the committee to whom was referred the Message of the President of the United States, of the 1st ultimo, transmitting a report and letter concerning the proceedings under the act, entitled "An act to regulate the laying out and making a road from Cumberland, in the State of Maryland, to the State of Ohio," and also a petition from a number of the inhabitants of the western counties of the State of Pennsylvania, praying that an appropriation may be made for the purpose of erecting a bridge over the Youghiogany at the place where the new road crosses the said river, made the following report: That two subjects are suggested by the said Message, which require Legislative provision, viz: the appropriation of $30,000 for completing the said road to Tomlinson's, where the old and new roads meet, and the granting authority to levy toll sufficient to keep the said road in repair. The reasons assigned in favor of such provisions, by the report and letter communicated by the Message, are, in the opinion of the committee, sufficient to show the expediency of the measure; they therefore refer the House to these documents. It is proper, however, to state that the appropriations already made for the objects have exceeded the moneys produced by the fund pledged to defray the expense of the said road, which will appear by a letter from the Treasury Department, accompanying this report. That circumstance, as also the present state of the public finances, the necessity arising out of the existing crisis in the national concerns, for applying the public resources to objects of security and defence, have been duly considered; and whatever ground of objection to the proposed measure these considerations may afford, the committee are of opinion, nevertheless, that the advantages the public would derive from an immediate extension of the new road to where it will intersect with the old, are sufficient to justify the appropriation. They are of opinion, that an appropriation for erecting a bridge over the Youghiogany River would be improper at this time, because, by law, the superintendent, in making the road, has power to deviate from the original survey, only that the road shall pass through the principal points established. If, then, a bridge should be erected over the said river, that place must necessarily become fixed as a point to which the road must lead, and being many miles in advance of the parts of the road contracted for, might prove inconvenient in the further prosecution of the work. The committee respectfully submit the following resolutions: _Resolved_, That $30,000, in addition to the sums heretofore appropriated, and reimbursable by the same fund, shall be appropriated for making the road leading from Cumberland to Brownsville. _Resolved_, That provision be made for the levying of toll sufficient to keep the same in repair. _Resolved_, That it is inexpedient to appropriate money for erecting a bridge over Youghiogany River on the said road. The report was referred to a Committee of the Whole on Thursday next. MONDAY, April 20. _Death of the Vice President._ A message was received from the Senate, announcing the death of the Vice President of the United States, and the resolution they had adopted. The House agreed to consider the joint resolution as above stated. Mr. TALLMADGE said, it was assuredly not from any want of respect to the memory of the patriot deceased, that some member from the State of New York did not on this occasion address the Chair. At their request, and being himself a native citizen of the State of New York, and having served particularly and on honorable occasions in the Revolutionary war with the gentleman whose death was now announced; having long known his services and merits as a soldier and statesman, he took the liberty, in behalf of the delegation from New York, to move a concurrence in the resolution of the Senate. The House unanimously concurred; and Messrs. TALLMADGE, MITCHILL, GOLD, STOW, and MACON, were appointed a committee on their part to act with the committee of the Senate. And the House adjourned, to meet at nine o'clock to-morrow, to receive the report of the joint committee on the subject. TUESDAY, April 21. On motion of Mr. TALLMADGE, _Resolved, unanimously_, That from an unfeigned respect to the late GEORGE CLINTON, Vice President of the United States, and President of the Senate, the Speaker's chair be shrouded with black during the present session: And, as a further testimony of respect for the memory of the deceased, the members will go into mourning, and wear black crape on the left arm for thirty days. On motion of Mr. TALLMADGE, _Resolved, unanimously_, That the members of this House will attend the funeral of GEORGE CLINTON, deceased, the Vice President of the United States, to-day at four o'clock. And the House adjourned.[29] FRIDAY, April 24. _Corps of Engineers._ The House resumed the consideration of the bill making further provision for the corps of Engineers, which had been amended in Committee of the Whole, so as to authorize the appropriation therein made to be disbursed "at such place as may be designated by the President of the United States for that purpose." Mr. GOLD spoke against a concurrence in this amendment at some length, and was followed on the same side by Mr. SMILIE and Mr. WIDGERY; to whom Mr. KEY, Mr. WILLIAMS, and Mr. WRIGHT replied. The discussion principally involved the respective merits of West Point and Washington City (to which place it was supposed, probably, that the Executive might deem it expedient to remove the Academy) as proper sites for a Military Academy. The question on the amendment was decided by yeas and nays. For the amendment 63, against the amendment 56. Mr. W. ALSTON moved an amendment contemplating the establishment of the Academy at Carlisle, in Pennsylvania, a place which he stated to be more eligible, in point of economy, convenience, and comfort, than West Point. Mr. GOLD opposed the motion. A motion was made by Mr. LITTLE to recommit the bill, and negatived. Mr. FINDLAY spoke in favor of the motion. Mr. BAKER suggested the propriety of locating the Academy at Harper's Ferry; and because, if the Academy must be removed, he thought Harper's Ferry preferable to Carlisle, he should vote against the motion. Mr. RHEA made a motion which he said would put an end to all these propositions to amend the bill, viz: to postpone the bill indefinitely. The motion was negatived--yeas 32. The question was then taken--"Shall the amendments be engrossed, and, together with the bill, be read a third time?" and decided in the affirmative. WEDNESDAY, April 29. _Relief of Caraccas, &c._ Mr. MACON submitted for consideration the following resolution: "_Resolved_, That the Committee of Commerce and Manufactures be instructed to report a bill authorizing the President of the United States to cause to be purchased ---- barrels of flour, and to have the same exported to some port in Caraccas, for the use of the inhabitants who have suffered by the earthquake; and also authorizing him to cause to be purchased ---- barrels of flour, and to have the same exported to some port in Teneriffe for the use of the inhabitants who are likely to starve by the ravages of locusts." To the adoption of the first clause of this resolution, there was no objection made by any one; but a desultory debate took place on incidental points and on the merits of the last clause. Mr. RANDOLPH made a speech of some length in favor of the object of the proposed resolution, but going to show that the aid the Government could afford would be ineffectual to relieve famine, if it existed; and that unquestionably the most effectual relief that could be afforded on our part to the wretched and unfortunate people of Caraccas would be a suspension, as to them, of our restrictive system. He, therefore, moved to amend the resolution by adding to the end of it the words "and to authorize vessels laden with provisions to clear out for any port of the aforesaid country." Mr. CALHOUN expressed his regret that this proposition to aid the cause of humanity could not be permitted to pass without the intermixture of party feelings, which the motion and speech of the gentleman from Virginia, he thought, were calculated to excite. He was opposed to the amendment, which he conceived would virtually repeal the embargo, and he hoped, as there could be no probability of adopting it, he would withdraw it. Mr. C. said he had doubts about the latter clause of the resolution; because, as to the distress at Teneriffe, the House had no other information than a newspaper report, whilst of the scarcity of provisions at Caraccas they had accurate information. Mr. RANDOLPH defended himself against the imputation of a desire to excite party feelings, &c., and declined withdrawing his amendment, because he believed its adoption to be essential to the accomplishment of the object of the original motion. He also made a number of observations on the impatience which gentlemen of the minority were listened to in the House, and the frequent interruptions they were in the habit of meeting with, &c. Mr. MACON spoke against the amendment, which, if adopted, would compel him to vote against his own motion. The restrictive system, he said, would not be of long duration, and, when it expired, provisions in plenty might be exported to South America and elsewhere; so that there was very little necessity for suspending the embargo law, which was only adopted preparatory to a different state of things. The clause in the resolution relating to Teneriffe, he said, had been added at the suggestion of another member. Mr. CALHOUN again spoke against the amendment, and in reply to Mr. RANDOLPH'S imputation of intolerance to the minority. This course of discussion he deprecated, as not comporting with the sacred cause of distant and oppressed humanity, &c. Mr. SMILES made some remarks in reply to an observation of Mr. RANDOLPH, that the donation by the British Parliament of a hundred thousand pounds to the sufferers by an earthquake in Portugal, some years ago, was an act almost sufficient to purchase absolution for all the sins of that Government. Mr. S. cited instances of similar conduct in this country, in much smaller communities; and expressed his regret that gentlemen chose to appreciate every act of other Governments, without allowing merit to their own for acts much more praiseworthy. The question on Mr. RANDOLPH'S motion to amend, was negatived--yeas 30, nays 74. Mr. BLACKLEDGE proposed to add "corn and rice" to the flour to be exported. Mr. MACON thereon modified his resolution so as to authorize the exportation of "provisions," instead of "flour," which would include all descriptions of breadstuff. The question was taken on the first clause of the resolution, viz: so much as relates to Caraccas, and carried unanimously. The question was taken on the remainder of the resolution, viz: so much as relates to Teneriffe, and negatived--for its adoption 47, against it 57. So it was _Resolved_, That the Committee of Commerce and Manufactures be instructed to report a bill authorizing the President of the United States to cause to be purchased ---- barrels of provisions, and have the same exported to some port in Caraccas, for the use of the inhabitants who have suffered by the earthquake. Mr. RANDOLPH adverted to the uncertainty as to the fact, which he supposed had caused the rejection of the clause of the resolution relating to Teneriffe, and offered the following resolution, in a form calculated to produce the proper inquiry: "_Resolved_, That the Committee of Commerce and Manufactures be instructed to inquire whether any, and what relief ought to be extended to the inhabitants of the Canary Islands, who are suffering by famine occasioned by locusts." Mr. NEWTON said, as this motion only proposed inquiry, and was not, like the other, peremptory, he hoped it would pass. And the resolution was agreed to. MONDAY, May 4. _Relief for Venezuela._ On motion of Mr. NEWTON, the House resolved itself into a Committee of the Whole on the bill for the relief of the inhabitants of Venezuela. [The bill authorizes the President to cause to be exported such quantity of provision as he may think proper, for the relief of the inhabitants of Venezuela, suffering by the effects of an earthquake.] Mr. NEWTON proposed to fill the blank for the appropriation with the sum of $30,000. Mr. PITKIN inquired for the official information, which might have been laid before the committee, on the subject of the distress existing at Caraccas. Mr. NEWTON, in reply, said, that there were many private letters in confirmation of the facts, and also a letter from our Consul, &c. Some of which were read. Mr. CALHOUN moved to fill the blank with fifty thousand dollars, which he thought would be little enough to effect the object in view. The question on the latter motion was decided in the affirmative, 45 to 29. The committee rose, and reported the bill; which was ordered to be engrossed for a third reading this day, which was subsequently done, and the bill passed. WEDNESDAY, May 13. _Recall of Absentees._ Mr. WILLIAMS said he rose to make a motion, the object of which was in itself so clear, that he believed there was no necessity for illustrating it. There was but one objection that he was aware of, and that was, that there was no precedent for it; but if that should be urged, he would reply that there never was before a crisis requiring it. The motion was-- _Resolved_, That the Speaker be directed to address a letter to each member of the House now absent, requesting his attendance prior to the first day of June. Mr. GRUNDY, said the object of the motion, no doubt, was a correct one. He should, therefore, vote for the motion as it now stood, but would prefer a modification of it. On what particular day it would be proper to have every member in his place, could not be foreseen with certainty by any one. To fix on a day, however, would be as much as to tell the members we do not want them earlier, and would put it out of our power to act prior to that day. But, on the other hand, should we not be ready to act on that day, is it not pledging ourselves that we will then act, whether we are ready or not? It would be as well to request the attendance of members immediately, and then we shall not stand committed either to act on or before that day. He hoped there would not be an absent man on the occasion of voting the final measure; though he should consider such a vote as a completion of what was already begun, and not a determination of the course to be pursued, which question he considered as decided in the anterior measures already adopted. Mr. ROBERTS said the call of the House met his perfect approbation; but, in its present form, he should be constrained to vote against it. He was not afraid that it would be considered a pledge to act on a certain day; but the members near home, after it was passed, would take the opportunity of the interval to visit their homes, and leave the House without a quorum. He, therefore, moved to amend the resolution, so as to request the attendance of the members forthwith. This motion was agreed to--ayes 47. After some objections by Mr. STANFORD to the phraseology of the resolution, it was passed without a division, there not being more perhaps than five dissenting voices. FRIDAY, May 22. _Judge Toulmin._ Mr. POINDEXTER, from the select committee, made the following report: The committee to whom was referred the letter of COWLES MEAD, Speaker of the House of Representatives of the Mississippi Territory, enclosing a presentment of the Grand Jury of Baldwin county, in said Territory, complaining of the conduct of Harry Toulmin, Judge of the District of Washington, in said Territory, beg leave to submit the following report: That the charges contained in the presentment aforesaid, have not been supported by evidence; and from the best information your committee have been enabled to obtain on the subject, it appears that the official conduct of Judge Toulmin has been characterized by a vigilant attention to the duties of his station, and an inflexible zeal for the preservation of the public peace and tranquillity of the country over which his judicial authority extends. They therefore recommend the following resolution: "Resolved, That it is unnecessary to take any further proceeding on the presentment of the Grand Jury of Baldwin county, in the Mississippi Territory, against Judge Toulmin." The report was read and concurred in. WEDNESDAY, May 27. _Renewal of Whitney's Patent Right to the Cotton Gin Invention._ The House resolved itself into a Committee of the Whole on the bill "for the relief of Eli Whitney." Mr. BIBB avowed his opposition to the principle and details of the bill, and moved to strike out as much as provided for renewing Whitney's patent right to the machine for ginning cotton. Mr. B. said, that, although the bill assumed the character of a private act, it involved considerations of great national concernment. If, sir, said he, the committee will take the trouble to consider it attentively, in all its relations, I am persuaded the motion submitted will not have been made in vain. The object of granting patents is clearly defined by the constitution to be the promotion of science and useful arts. The effect of such promotion is obviously the advancement of public improvement and prosperity. All the authority which Congress possesses over this subject, is derived from the following provision: "Congress shall have power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Here are two distinct propositions: 1. The delegation of power to promote science and useful arts; 2. And a description of the _mean_ authorized to be employed. The benefit proposed to inventors is evidently not the object in view, but the _mean_ whereby the _end_ may be accomplished; it is the incitement offered to genius and talent, for the purpose of general advantage; it is the price paid by the people of the United States for the _disclosure_ of useful inventions. To legislate, therefore, correctly, on the subject, it is indispensable that this distinction between the _mean_ and the _object_ should be kept constantly in view. So long as patents are granted for the promotion of science and useful arts, the intent and meaning of the constitution are fairly pursued; but whenever they are allowed with any other view, there is a manifest departure from the limit of authority to which Congress is confined. Sir, the framers of the constitution were sensible that monopolies were odious every where, and that they would be particularly so to the people of this country. Hence the limitation imposed, which permits monopolies only in an expressly-defined case, and for a limited time. The constitution declares, that "all powers not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people." It is also the rule of construction, universally admitted, that the enumeration of powers excludes all powers not enumerated. I maintain, then, that the constitution having clearly designated the object for which, and the parties to whom, exclusive rights may be granted, for limited times, Congress is restrained within those precise bounds. If there can be a legitimate departure from them in one case, the restraint becomes wholly nugatory. The doctrine which deprives Congress of the power to establish banking monopolies, equally forbids them in every case, and for every purpose, other than those specified in the clause to which I have adverted. If, therefore, I establish the position that the proposed renewal of Whitney's patent is neither intended nor calculated to promote science or useful arts, I shall have succeeded in showing that this bill ought to be rejected. Permit me to inquire, in the first place, how the object of the constitution may be attained? By pursuing the principle which has heretofore governed the Legislature. The statute securing patent rights must be general in its application, holding out inducements to the inventive faculties of all, and prospective in its operation. It must grant monopolies for a limited time to _future_ and not _past_ discoveries. The term during which the exclusive rights shall continue, should be sufficiently long to afford the necessary incitement to the exertions of genius, to promise an adequate reward for the labor of invention. Whether fourteen years, as now fixed by law, be the proper term, is a question on which gentlemen may rationally differ in opinion. It is worthy of remark, however, that under the existing statute, the progress of invention in the useful arts has been more rapid in the United States than in any other country on the globe. Still, if necessary, Congress is competent to extend by a general provision exclusive rights to _future_ inventors for a longer time; but the renewal of a patent for a discovery already made and in use, stands on distinct grounds. In the one case, the progress of science and useful arts (the object for which alone patents are constitutional) would probably be promoted; but in the other, the invention being already made and disclosed, public improvement cannot possibly be advanced by taking away its benefit from the community. Is the object of this bill to promote science or the useful arts? The candor of its advocates will answer the question in the negative. It is to promote the interests of Mr. Whitney at the public expense--to convert the _mean_ prescribed by the constitution into the _end_. If the renewal of a patent in a special case would furnish an adequate stimulus to the exertions of other ingenious men, it might be urged with some appearance of plausibility; but no man will assert that one or two accidental cases of this sort, out of the many thousand patents which are issued, would have any influence on the expectations of others. It follows, therefore, that the passage of the present bill will be a departure from the intent and meaning of that instrument, which is the fountain of our authority. Sir, there is another view of this subject in relation to policy, to which I beg leave to ask the attention of the committee. In this widely-extended country, the pursuits of the people are various and diversified. In one section cotton is cultivated, in another hemp, and in a third wheat. Suppose patents are obtained for valuable improvements relative to these articles, either in the instruments of cultivation or of preparation for market. The patentees are entitled by law to exclusive rights for fourteen years. For the improvement concerning the article of cotton only, the patent is extended to twenty-one or twenty-eight years, as now proposed, while exclusive rights to the other inventions are permitted to expire. What is the consequence? The people of one section of the Union are subjected in their pursuits to the privations incident to monopolies, for that term; while those of another section similarly situated are exempted from all restraint at the expiration of the first patent. I appeal to the candor and magnanimity of this assembly to determine whether such a course of proceeding be not manifestly unjust, and utterly incompatible with that equality of rights guarantied to the respective States. The constitution imposes uniformity of taxation for the purpose of avoiding the injustice and oppression towards particular States, which the extension of patent rights, in special cases, is calculated to produce. The fact cannot be disguised, that the operation of this bill will be to levy a tax on the people of Georgia, the Mississippi and Louisiana Territories alone; and if it passes, it will be owing to that circumstance. I know enough of human nature, and have seen much in the course of my acquaintance with legislative proceedings, to satisfy my mind, that if cotton were cultivated in a few large States, this bill would certainly be rejected. Does any man believe that if the large States of Virginia, Pennsylvania, New York, and Massachusetts, were concerned in this thing, as are those portions of the Southern country I have mentioned, the application of Mr. Whitney for a renewal of his monopoly would be successful? No, sir; and I urge this consideration for the purpose of showing the impolicy of extending patents in special cases, inasmuch as it puts it in the power of Congress by such a regulation to give a preference to one section of the Union over another, and because the power will never be exercised in cases affecting a particular and comparatively small portion of the community. Enact a general law on the subject of patents--make what provision you please in relation to future discoveries, and none can complain. Whether improvements shall be made interesting to this, that, or the other section of the nation, will be left to chance; when made, the monopolies will be equal in their duration, and all will be equally exempt from partiality or oppression. There is another aspect, Mr. Chairman, in which the provisions of the bill now before the committee are manifestly unjust. The Legislatures of Tennessee and the two Carolinas purchased, during the term of Whitney's late patent, the right of using in those States his invention for ginning cotton. The fact will not be denied, that the price paid was proportionate to the extent of time for which the patentee held the exclusive right. Now it is proposed to re-grant to Whitney the monopoly for an additional term of years, so far as relates to my constituents, while the three States I have mentioned are expressly exempted from its operations. It is true, the Legislature of Georgia did not enter into any arrangements with the patentee on the subject, but it will be perceived that all persons who erected machines without permission, during the fourteen years, are left by the bill subject to prosecution. The effect, therefore, will be to impose a restraint relative to the same object on one State for twenty-one or twenty-eight years, while other States are exempted at the expiration of half that term. I know, sir, that unfavorable impressions exist on the minds of many gentlemen concerning the conduct of Georgia in this affair; and I fear they may have much influence on the decision of the question. Whether the Legislature ought or ought not to have followed the example of the legislatures of other States, is a question which belongs exclusively to that body to determine. Your patent law imposed no obligation on the subject, and they had the right to do so or not, as they pleased. Having done nothing which they had not a right to do, and omitted nothing which they had not the right to omit, I cannot consent to any unauthorized control of this House over their proceedings. That Mr. Whitney's invention has been highly important to the Southern country I freely admit, and that he deserves much for his useful labors, none can deny; but, if the conduct of Georgia has not been so liberal towards him as some gentlemen think it ought to have been, an apology may be found in the resentment which his conduct was calculated to excite. When his machine was first erected in Georgia, as I have understood, he refused to sell his patent right upon any terms or for any price. It was determined to monopolize every pound of cotton at an enormous premium, and arrangements were made for that purpose. To that circumstance, and the opinion which prevailed, that the invention was not new, is to be attributed the course of proceeding, now made the subject of complaint. The imprudence of Mr. Whitney, or, perhaps, of his partner, could not fail to have produced feelings of resentment rather than of liberality towards them. I repeat, however, that the conduct of Georgia has no connection with the present question. The United States never guarantied to any patentee the receipt of any given sum for his invention, nor gave any pledge that his exclusive right should in no instance be violated. They have enacted laws for the security of patentees, provided a remedy for violations of their rights in all cases, and a tribunal before which that remedy may be sought. To that tribunal--the courts of the United States--Mr. Whitney should be referred for redress. This is not a time for exciting State jealousies and individual resentments among ourselves. Policy, and that conciliatory spirit which ought to guide our deliberations, unite in prescribing a different course, and I do trust that prescription will not be disregarded on the present occasion. But, sir, there is still another and more important view of this subject, on which alone I probably might have relied. The patent of Mr. Whitney expired about four years ago, and an unqualified right to the invention was thereby vested (as I shall show) in the people of the United States. Under such circumstances, it is my purpose to prove the proposed renewal manifestly unconstitutional. I presume it will be admitted, that, without the provision of the constitution on the subject, and the law pursuant thereto, no exclusive rights would belong to inventors. It is true the inventor would be entitled to his particular machinery, but other persons would not be prohibited from imitating it, and consequently his right to his discovery would not be exclusive. In a state of nature, occupancy gives a right to soil, upon the ground of supposed labor on the part of the occupant in taking possession. The right and the occupancy, however, are inseparable. If the latter be abandoned, the former ceases to exist--the soil becomes common to all, and may be appropriated to another's use. The natural law in regard to inventions is the same. So long as the inventor is alone in the possession of a knowledge of his discovery, he is the occupant, and has an exclusive right. But the moment he _discloses_ that knowledge to the public he abandons his occupancy, and the invention becomes subject to the use of others. This principle is recognized by the constitution itself, and fully established also in other countries. The express delegation of power to secure to inventors the exclusive right to their discoveries, admits that without it no such right would exist after disclosure. In Great Britain the doctrine is perfectly settled. If gentlemen will turn to the famous case of literary property, Millar vs. Taylor, which was argued with great ability, and decided with unusual deliberation, they will be satisfied of the fact. The court were divided on the particular question pending before them, and gave their opinions separately and very much at large. On that occasion it was determined that the publication of a literary work did not of itself divest the author of the exclusive right, nor authorize others to republish it for their advantage without his consent. But it was admitted, as a point fully and entirely settled, that the principle did not apply to mechanical inventions; that the disclosure of a mechanical invention did divest the inventor of his exclusive right to such inventions, and that the public became entitled to all the benefits which could be derived from it. A later decision of the highest courts of the Kingdom on another case, has placed the question of literary property on the same footing with the mechanical inventions. The principle of these decisions is, that the disclosure of an invention amounts to a relinquishment of exclusive use, it is an implied right to the public. And if such be the doctrine in Great Britain, under a Government the foundation of which is monopoly and exclusive privileges, it cannot be otherwise among this people, the fundamental principle of whose Government is, equality of right and exclusion of monopolies. I contend, then, sir, that if the disclosure of an invention vests in the public a right to use it without restraint, much more strongly is that right vested after the expiration of a patent. In the one case the public are invested with a common or equal right by an implied gift, and in the other by contract. The very condition on which patents are granted is, that, at the expiration of the term authorized by law, the people shall be entitled to the free use of the invention; and, to secure this right to the people, such a specification of the machinery employed is required at the time of issuing the patent, as will enable others to understand and imitate it with success. Need I undertake to prove that, from the moment Whitney's patent expired, his exclusive right ceased to exist? None will deny the fact. Is it necessary to show that the right which was exclusive during the patent, is now the common right of all? It will be admitted that every man in the United States has at this moment as perfect a right to erect gins on Whitney's plan, as to build a house or make any implement of agriculture. The question then presents itself, has Congress the power to divest the people of that right? I say no, sir; to renew a patent after it has expired, is to establish a new principle unauthorized by the constitution. To secure a pre-existent right is one thing, but to divest the people of the United States of their right, and vest it in an individual, is quite a different affair. "Congress shall have power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." What is the import of this provision? An inventor while in the sole possession of the knowledge of his invention has the exclusive right to it, without the intervention of law; but when that knowledge is disclosed to the public, the exclusive right would cease to exist. Therefore, for the purpose of affording a stimulus to ingenuity, and of obtaining disclosures of useful discoveries, Congress is authorized to provide by law for securing that exclusive right for a limited time after disclosure, which previously existed in the inventor, and which enabled him forever to withhold his invention from the public. The disclosure is the great object to be attained; the security of the exclusive right before existing, but which would be lost without such security, by the act of disclosure, is the mean authorized to be employed. Is there no difference between protecting an existing right, and taking away a right from one party for the purpose of vesting it in another party? The States composing the Union are now entitled to the benefit of Whitney's invention, and may make whatever regulations concerning it, within their territorial limits, they please. Will it be said that because the power is delegated to Congress to promote useful inventions and to obtain their disclosure to the public, by holding out the inducement resulting from the security of a monopoly for a limited time, therefore the States may be constitutionally deprived of their unquestionable rights? Surely not. Hence, I conclude that the power of Congress over this subject has terminated by their own act, and that to resume it would be an unconstitutional encroachment on the rights of the respective States. Sir, the power given to Congress on the question of patents is similar in extent and in every other view to that which in England is vested in the King. He is empowered to grant patents for new and useful inventions for a limited time, but it is held that when that time expires, such inventions belong to the public. "If a patent be granted in case of a new invention, the King cannot grant a second patent, for the charter is granted as an encouragement to invention and industry, and to secure the patentee in the profits for a reasonable time; but when that is expired, the public is to have the benefit of the discovery."--_10 Mad. Rep. 110_. It is also laid down in _Bull N. P. 76_, that among the general questions of patents, the first is--"Whether the invention were known and in use before the patent." Such is the English law, and the statutes of the United States heretofore passed are founded on the same principle. The existing statutes make it an indispensable condition to securing an exclusive right, that the invention shall not have been "known or used before the application;" for a patent itself reads thus: "Whereas A. B., a citizen, &c., hath alleged that he has invented a new and useful improvement, being [here insert a description of the invention] which improvement has not been known or used before his application," &c. It is then perfectly clear, that our predecessors who have legislated on this subject considered a public disclosure of an invention an abandonment of all claim to the exclusive use; that they understood the object of the constitution to be the advancement of national improvement; and that when the public are in possession of any important discovery they could not be divested of it. Suppose the inventor of that useful instrument the screw-auger, who was an inhabitant of New England, and who never solicited a patent for it, should now make application. Your law excludes him because his invention is known and in use. And I call on gentlemen to show how the progress of science or useful arts, or individual justice, would be less promoted by granting a patent in that case, than in the present application. Certainly a man is not less entitled to the bounty of Congress who has given to the public the results of his labors, than he who has enjoyed the benefit of a monopoly for fourteen years; nor will it be asserted that the right of the community to an invention is less complete from the expiration of a patent, than from the bare act of disclosing it. Mr. SEYBERT said he did not know that the bill for the relief of Mr. Whitney could be acted upon this day; indeed, it was not his intention to make any observations on the subject, until the motion for striking out a portion of the bill was made by his friend from Georgia, (Mr. BIBB;) he therefore hoped the House would pardon him for the desultory and confused remarks which he should impose upon the patience of the House. He came from a State whose interests were nowise concerned in this question, and therefore he stood as an impartial advocate in favor of the patentee; his feelings could not permit him to remain quiet on the question; by him the machine of Mr. Whitney was viewed as a stupendous monument of human invention--great mental exertion alone could produce results like this, and he appealed to the House as to the propriety of granting the prayer of the petition as reported in the bill. It was, he conceived, not a favor, but justice, which the passage of this bill would render to Mr. Whitney. If he was correctly informed, Mr. W. received but a trifling compensation for his labors; that, in the case of the State of Georgia, he expended $20,000 more in prosecuting law-suits, than he had ever been paid in that State. Mr. S. continued--he was informed that in South Carolina Mr. Whitney had met with some persecution; the assembly of that State originally purchased the right to use the machine for the sum of $50,000, which was to be paid by regular annual instalments. In the following year Mr. W. visited South Carolina for the purpose of receiving the second instalment, when, instead thereof, he discovered that a Legislature lately assembled had repealed the law formerly enacted on the subject; and, instead of receiving a second instalment, the Legislature ordered that he should be prosecuted for the recovery of that which he had before received. Mr. W. was saved from prison by the interference of some private gentlemen. [Here Messrs. WILLIAMS and CHEVES rose, and in conversation explained to the satisfaction of Mr. S. that the statement made was not accurate; that the delay and difficulties caused by the proceedings of the Legislature of South Carolina, were owing to well-grounded suspicions, at that time, that Mr. W. was not the inventor of the cotton gin, and that he had in some respects failed to comply with the conditions prescribed by the law.] This explanation was satisfactory to Mr. S., and he observed, had he known in time that he would have taken a part in this debate, he should have considered it his duty to consult his friends from South Carolina on this subject. He further stated that Mr. W. had informed him that, in the final adjustment of this affair, the State of South Carolina had rendered him ample justice. He regretted the necessity of mentioning States in debate--he would quit this part of the subject, and proceed to communicate those facts which had made an impression on his mind in favor of the bill. He would first quote the authority of Judge Johnson in his decision of the case of Whitney vs. Carter. Here Mr. S. read as follows, from page 128: "With regard to the utility of this discovery, the court would deem it a waste of time to dwell long upon this topic. Is there a man who hears us who has not experienced its utility? The whole interior of the Southern States was languishing, and its inhabitants emigrating for want of some object to engage their attention and employ their industry, when the invention of this machine at once opened views to them, which set the whole country in active motion. From childhood to age, it has presented us a lucrative employment. Individuals who were depressed with poverty, and sunk in idleness, have suddenly risen to wealth and respectability. Our debts have been paid off; our capitals increased, and our lands are trebled in value. We cannot express the weight of obligation which the country owes to this invention; its extent cannot now be seen." These were the sentiments of a gentleman residing in the State of South Carolina; from this their justness may be estimated. Mr. S. continued--he could not stop here. Foreign writers prove the absolute necessity of this machine, to bring the particular species of cotton to market, which constitutes nine-tenths of that which the United States could furnish. He would, in proof of this declaration, read from Edwards' History of the West Indies, vol. 2, page 265, as follows: "Green seed cotton is of two species; of one of which the wool was so firmly attached to the seed, that no method has hitherto been found of separating them, except by the hand; an operation so tedious and troublesome, that the value of the commodity is not equal to the pains that are requisite in preparing it for market. This sort, therefore is at present cultivated principally for supplying wick for the lamps that are used in sugar boiling, and for domestic purposes; but the staple being exceedingly good, and its color perfectly white, it would doubtless be a valuable acquisition to the muslin manufactory, could means be found of detaching it easily from the seed." Whilst the mind of Mr. Edwards was thus occupied in London, that of Mr. Whitney in the United States effected this valuable desideratum. Mr. W.'s machine was brought to perfection in 1792. Mr. S. dreaded the further fatigue of the House, but he could not refrain from stating some additional facts. Consult, said he, your Treasury reports, and there you will find that, in the year 1810, there was exported from the United States 93,000,000 pounds of cotton, of which 84,000,000 pounds was of the species mentioned by Edwards. Without the gin of Whitney, or some machine equivalent thereto, not a single pound of the 84,000,000 pounds could have been sent abroad--thus would the United States have found themselves deprived of the annual income of $15,000,000, without taking into view 16,000,000 pounds of cotton consumed in our country. Can we do too much for this man? Let us render him but ordinary justice and pass the bill. Let us, said Mr. S., consider the benefits resulting from the application of useful machines in Great Britain. Take a view of that of Arkwright. If, said Mr. S., his memory did not deceive him, in the year 1755 the cotton manufacture of Great Britain was ranked among the lowest of her domestic branches, and did not value more than £200,000 sterling annually; in 1809, that nation derived thirty millions pounds sterling from her industry in this way. England well knows her interest, and she fosters her arts. Let us in this respect follow her example, by doing justice to the genius of our countrymen. But for the spinning machinery invented by Arkwright, and the gin of Whitney, the cotton manufacture might at this time remain in a state of comparative obscurity. Very little will be observed on the constitutionality of the question. He would apprize his friend from Georgia of an error which he had fallen into, in confounding monopolies with patent rights. In the United States they were distinct things; and whilst on the one hand the Constitution of the United States has guarantied to inventors their inventions, in its spirit and letter it is opposed to monopolies. The renewal of a patent, said Mr. S., was not unprecedented, it was a common thing in England and France; and, in the United States, the cases of Evans and Whittemore furnished us with examples of the transaction by the Congress of the United States. Mr. S. said he would finish his remarks with the expectation that the House would pass the bill as reported. The committee rose, and had leave to sit again. THURSDAY, June 11. _Amy Dardin._ The House then resolved itself into a Committee of the Whole on the report of the Committee of Claims on the petition of Amy Dardin, that it is reasonable, and ought to be granted. After some debate, the committee rose, and reported their agreement to the report; which was, after debate, concurred in by the House. For the report 64; against it 42. MONDAY, June 22. _Additional Duties._ An engrossed bill for imposing additional duties upon all goods, wares, and merchandise, imported from any foreign port or place, was read the third time, and recommitted to a Committee of the Whole to-day. The House accordingly resolved itself into a Committee of the Whole on the bill; and, after some time spent therein, the Committee rose and reported the bill to the House without amendment. Mr. BIGELOW.--Mr. Speaker, it is well known that I have been uniformly opposed to the measures which have drained the Treasury of its money--more particularly to those measures of the present session, which have rendered necessary such large appropriations, and laid the foundation for an expense which no man can calculate. But, sir, as those appropriations have been made; as expenses have been and must be incurred; the means of payment must be provided. Sir, I hold it to be a sound political principle--a principle from which this Government never ought to depart--that the creation of public debt ought to be accompanied with the means of its extinguishment. This principle was strongly recommended in the administration of WASHINGTON, by the then Secretary of the Treasury, in a report to Congress on the subject of finance. He stated it to be the true secret for rendering public credit immortal, and expressed a fervent hope that the Government of the United States would always adhere to it. The arguments in favor of this principle are plain and obvious. The public credit must be supported, or the Government will lose the confidence of the people. The public credit must be supported, or you put at hazard the best interests of the country; you hazard, indeed, the very existence of the Government. In popular Governments there is always a reluctance to laying burdens upon the people. If, then, while creating a public debt, we neglect to provide the means of payment, what will be the consequence? Will it be less difficult or unpopular to do this after the debt has accumulated to an enormous amount? No, sir. Depend upon it, the longer you delay to provide the means for discharging the public debt, the greater will be the risk and difficulty of doing it. What will be the consequence of such neglect? Sir, the country will be deluged with Treasury notes; these notes will depreciate, like the old continental money--the whole history of which every one, acquainted with the history of the Revolution, knows to be a history of public and private frauds. Sir, the floodgates of corruption will be opened upon us. Already, sir, tigers and sharks are feasting, in anticipation, on their prey. Impressed, as I am, with the importance of the principle, that the creation of public debt ought to be accompanied with the means of its extinguishment, I confess it was with no little astonishment I learnt, that doubling the duties on imported articles was the only means to be provided; that, after the House had solemnly resolved upon a system of taxation, embracing various subjects, and intended, as was stated, to equalize upon the people of the different States, as far as possible, the burden of taxation, that only one of those has been selected, and that one the most unjust, the most unequal, and the most mischievous of the whole. These remarks are not made, Mr. Speaker, from an apprehension that doubling the duties on imported articles will not effectually open the eyes of the people. Sir, it will be the most unpopular tax you can impose. The people of this country--particularly the eastern sections of it, upon whom this tax will bear peculiarly hard--are too enlightened not to know, to see, and to feel, the operation which an additional duty of 100 per cent. upon imported articles will have upon them. They are too enlightened not to know that this will be but the beginning of sorrow. Neither, sir, are they so ignorant as not to know that the five millions of dollars which it is calculated to raise by doubling the duties, will not discharge a loan of eleven millions, and Treasury notes to the amount of five millions more; much less that it will defray the expenses of the war. Yes, sir, they will at once see, that, sooner or later, other taxes must and will be resorted to. The true policy, then, of the United States is, in the outset, to lay the foundation of a sure and certain revenue, and not to depend, in a state of war, upon a revenue to be derived from a source so uncertain as that of commerce. My objection is not that revenue ought not to be raised, but to the present mode. I have stated, sir, that this is an unjust measure. Let us for a moment look at its operation. There is, probably, at a moderate calculation, seventy millions' worth of imported goods now in the United States, which have paid only the present rate of duties. Taking the calculation of the Secretary of the Treasury as correct, that thirty-five millions of imported goods yield a revenue, at the present rate of duties, of five millions, the seventy millions now in the United States have paid duties to the amount of ten millions. What then will be the consequence of passing this bill? The owners of the imported goods now in the United States are men who understand their own interest. The moment, therefore, you pass this bill, and impose double duties upon goods to be imported, the owners of goods now on hand will increase the price as much at least as the amount of the present rate of duties. The purchasers of these goods, therefore, will have to pay to the owners ten millions of dollars more than the present value. You will of course lay a tax of ten millions of dollars upon the purchasers and consumers of these goods, without benefiting the Treasury a single cent. Does this, sir, comport with the principles of justice? Is it right to take from one part of the community ten millions of dollars and put it into the hands of another part? In opposing this measure, I am not advocating the interest of the merchant, but of the farmer, the tradesman, and mechanic. I am not willing that the people whom I represent, in addition to the taxes they must pay to carry on the war, should also pay such an enormous tax to the merchant. Mr. MITCHILL expressed his sentiments as being favorable to an augmentation of the duties on imports; though he was quite unprepared to give his assent to such increase in the terms proposed by the bill. It is therein proposed, sir, to double the existing customs. I think this is not the best way of accomplishing the object intended. The bill is brought before us for the avowed purpose of raising money. The mode proposed is, by an addition of one hundred per cent. on the sums levied upon imported merchandise. Now, although I am friendly to a revision of our tariff, and to such an amendment of it as will materially increase the receipts at the Treasury, I am very far from believing the method now proposed for that purpose is the one we ought to adopt. I object to the plan, because it takes for granted that the rate of duties now extant in our statutes is precisely what it ought to be. This I humbly conceive is not the fact. A brief recital of our commercial system inwards, will show it. The impost, until the adoption of the constitution of 1787, belonged to the respective States. When the Government went into operation in 1789, it took the direction and the profits of the custom-houses. One of the earliest acts of the legislators, which, on that occasion, assembled at New York, was to fix the sums which each denomination or parcel of foreign merchandise should pay on being admitted into our country. This was done, in the first instance, with all the skill which the patriotism and intelligence of the members of the first Congress permitted. From session to session, and from time to time, it was altered and improved. The last memorable amendment, was, if I recollect right, in the year 1804. Then, a variety of articles which had paid an _ad valorem_ duty were _specifically_ enumerated and charged with duties conformably. At that time our tariff was admirably calculated to answer its several purposes. Much thought and profound knowledge had been bestowed, to mature it, and render it as complete as possible. It was at that time peculiarly and happily calculated for the good of the nation. But eight years have elapsed since that table of duties was arranged. During that term, prodigious changes have taken place in the commercial world. The principal part of the European Continent, from the Baltic to the Mediterranean, and from the Atlantic to the Adriatic, have bowed to the sovereignty of the Emperor of the French. He has published his modern and enormous tariff, and caused it to be enforced throughout his extensive dominions. Tobacco, cotton, and other great articles of American produce, have been subjected to excessive and almost prohibitory imposts. Memorable alterations have been made, during the aforesaid period, in the insular tariff--I mean of the British dominions. Their regulations, as relate to lumber and the heavy materials of our growth, as well as to the exportation of their own manufactures, have been materially tightened and straightened. Their charges for convoy, port accommodations, light-houses, and quarantine, are exceedingly heavy. It is high time they should be examined, and thoroughly understood. A great change has also taken place in the colonial system. France has lost Martinique, Guadaloupe, and the Isle of Bourbon. Neither the East nor the West Indies contain any provinces owing allegiance to the Corsican Emperor. All the rum, sugar, coffee, and molasses of those productive regions, were now English--and with the English nation we were now at war. In like manner, the Batavian colonies had been forced to submit to the Mistress of the Seas; and Guiana, the Cape of Good Hope, Batavia, the Spice Islands, and all the other foreign possessions of the Dutch, had yielded to her conquering power. All their productions were now Anglican; and we could only obtain them from or through an enemy. Our own country had been transformed, during the last eight years, into a situation exceedingly different from what it had ever been before. It has taken many strides towards independence. The soil has been more profoundly explored, and found to contain innumerable and invaluable productions, which the mineralogist examines with pride, and the economist turns to profit. The forest and the fields have been proved to rear more indigenous plants, and to be capable of maturing more exotic ones, than any observer had supposed. And the arts, trades, and manufactures, which have arisen among us, have progressed with a thriftiness of which I can cite you no example. Mr. M. then took a survey of the three great purposes intended to be furthered by the duties on imported merchandise. The first of these was the collection of money for the Treasury; the second, was the countervailing of other nations, by accommodating our duty to theirs; and the third was to protect our infant and growing manufactures. He contended that the mode proposed by the bill now before the House was very imperfect in all these relations. It was unskilfully devised. It did not contain those evidences of care and sagacity that ought to beam in every feature. He was not willing to legislate in this way--by a hop, step, and a jump. He wished the tariff to be varied in such a manner as to suit the actual state of things, and the existing condition of society and business. With such vast changes in the commercial and manufacturing departments, both at home and abroad, who could reconcile himself to a regulation, now antiquated, and differing almost _toto cælo_, from the real _desideratum_. Double duties on articles where great value was united to small bulk, as in watches of gold and silver, and in precious stones, pearls and jewelry of all kinds, might be an inducement to smuggling. Already we know the temptation was too great to be resisted under the present duties, and if they were augmented to the amount proposed, what evasions might not be feared? Mr. BLEECKER.--Mr. Speaker: I was happy to observe on Saturday that the vote of the majority was not so uniform on this bill as usual. This circumstance very much fortifies the arguments urged against it on this side of the House, and proves that the opposition cannot be referred merely to the spirit of party. Indeed, sir, the objections to the increase of duty contemplated by this bill are so palpable and obvious to my mind, that I still hope it will not finally pass. It will be unequal and unfair in its operation in many respects. It will give a vast advantage to the merchants who now have goods on hand over those whose goods are not yet in the country, and which will be imported after the passage of this bill. The additional duty will by the former be added to the price of the goods, and thus an enormous profit will be given them. But this is comparatively a minor consideration. It is to be regretted, sir, that we have not a fair, just, and equal system of internal taxation, judiciously devised, with a wise reference to the feelings and temper of the people. But, in all our late plans and schemes, we appear to go on without any reference at all to the temper and feelings of the people. A revenue derived altogether from duties on imports must always be unequal in its operation on different parts of the country, and different classes of the community. There will be districts of the country--there will be whole States--in which manufactures will be carried on to a great extent; while other parts of the country, and other States, have few or no manufactures. In this respect there will be a serious inequality between manufacturing and nonmanufacturing States. Again, sir, it is said that the duty will be paid by the consumer. But it is not invariably true that the consumer pays the duty. The whole of it is sometimes paid by the consumer; it is sometimes divided between the importer and consumer, and not unfrequently falls altogether on the importer. This depends on a variety of circumstances--principally the state of the market. When the market is overstocked, a great portion of it must fall on the merchant. There must often be in this country a state of things which renders it difficult or impossible to add the amount of the duty to the price of the commodity. What the state of things, and what the market will be during the war, for which this revenue is to be provided, it is difficult to foresee; for what sort of a war we are to have, no one can tell. It will perhaps be another anomaly furnished by American politics. I believe, however, by the way, that gentlemen, who expect much of "the pride, pomp, and circumstance of glorious war," will be much disappointed. But, sir, admitting with the gentlemen on the other side, that the additional duty provided by this bill will be paid by the consumers of imported articles, if the consumption is much more in one part of the country than in another, the burdens of the war will be imposed very unequally and unjustly. Now it was proved to demonstration by the intelligent and accurate gentleman from Connecticut, (Mr. PITKIN,) that the consumption of imported articles is much greater in one section of the country than in the other. His statement and arguments on this subject have not been denied. Indeed, the candid and honorable gentleman who advocated this bill on Saturday, (Mr. BIBB,) admitted that it would not operate equally. It will impose the burdens of the war on the Atlantic, the commercial, States. It is true, sir, that many imported articles are consumed in every part of the Union. Tea and coffee, as the gentleman from Pennsylvania (Mr. SMILIE) told us, are used in the Western country. But the great consumption of foreign goods is in the Atlantic States; and, more than anywhere else, in the Northeastern section, the most commercial States. I know, sir, that this topic is regarded by many gentlemen as ungracious and invidious. But legislating as we are for a confederated Republic, it is worse than idle not to regard the character, situation, and interest of the people, in the several sections of the Union; and I ask gentlemen who are so ardent in the war, whose bosoms seem to glow with patriotic fire, is it just and fair to abandon the internal taxes and impose so much of the burden of the war upon the people of the Northern and Eastern States, the majority of whom are known to be opposed to it; whose hearts and souls are not in the business; who are driven, and dragged, and forced into a war, in which they will go with you no further, nor any longer, than a patriotic obedience to the constitution and laws of the country requires; a war which they consider unwise, impolitic, inexpedient, and ruinous; a war which must annihilate their commerce; that commerce to which they owe their rapid progress in population, in the arts of civilized life, in knowledge, in literature, in all that adorns and makes society valuable and interesting? From this people, in such a war, you have little to expect. While we are talking of the protection of commerce and the violation of neutral rights, they see us adopt the most effectual means to destroy all their commerce. Another objection of no little importance, that has been urged against this bill, is its tendency to promote smuggling. Before the restrictive system, which, however well meant by many, has proved so inefficacious and ruinous, we had in this country a system of commercial morals, of which we had much reason to boast. Such was the purity and fairness of the mercantile character that in no other country in the world was the revenue arising from duties on imports so punctually paid, so easily and cheaply collected, and with the aid of so few officers. But the unfortunate policy adopted in 1806 has destroyed the purity and elevation of commercial morals. Evasions and violations of the laws are no longer disreputable. And what, sir, must be the situation of a country in which a constant evasion and open violation of the laws are not reprobated by public sentiment. The moral and patriotic observer will see with pain and mortification that we are about to add to the temptations to increase the stimulus to evasions and violations of the laws, still more to debase and degrade the commercial character of the country. There is, sir, another important view of the subject before us at this moment. The increase of the duty, a reliance upon the impost as the means of supporting the war, in connection with the abandonment of the internal taxes, affords an instructive practical lesson on the nature of our Government. It teaches you that it is unfit for the purposes of foreign and offensive war. If gentlemen are now afraid to impose the taxes, they must believe that the people will not bear them. And, indeed, sir, few cases will occur in which the people will submit to support the burdens of an offensive war. Seldom will the Government be able to carry on such a war. But, sir, the conduct of those gentlemen of the majority who are for imposing additional duties and abandoning the taxes, proves another thing. If, when they have just entered upon the war, they hesitate, and are afraid to exact of the people the means necessary to carry it on, they must be conscious that the war is not so popular as they have imagined, for if the people are so hearty in the business as gentlemen have professed to believe, if they think the war a wise, politic, and necessary measure, they cannot be unwilling to be taxed a little for its support. Mr. BRIGHAM.--Mr. Speaker, the protection and the regulation of commerce has become a prime object of legislation. This bill provides for the doubling of the duties on all imported merchandise. Sir, the restrictive system has operated very severely on the commercial part of the community--it has been the source of much complaint. The commercial class of our fellow-citizens have been oppressed; they have been impoverished by the policy of their own Government, and they have been soliciting their rulers for relief. They complained of the first embargo; what did they get? why, non-intercourse. They complained of the non-intercourse, and you soon gave them non-importation; when they complained of the non-importation, they had, in addition to the evil complained of, a second embargo. They then complained and prayed for the repeal of both these laws, and you have given them a declaration of war--an open war against the United Kingdom of Great Britain and Ireland, and the dependencies thereof. They complain of this war, and you give them double duties on all imported merchandise. Sir, commerce, and the regulation of commerce, have become the Alpha and the Omega; it is the cause of war--it is the professed object and end of war; and by this bill, you are making provision for this very class of citizens, who have been thus complaining, oppressed and impoverished, to support the war by paying double duties. Mr. Speaker, this increase of impost is a tax which, in my opinion, will operate unjustly and unequally. It is imposing a heavier burden on the Eastern and Northern, than on the Southern and Western States. The former are under the necessity of importing and of consuming more of the foreign manufactures, than the Southern States; and though they are a hardy race, they are not able to encounter the severities and rigors of the Northern winters without a much greater quantity of clothing than is necessary for the people in the Southern climates. Sir, the people in the Eastern States have been reduced in their supplies; they have not been able to carry on their ordinary domestic manufactures for want of the necessary means to prepare the crude article for manufacture; and during this long session they have been memorializing Congress, and praying that they might be allowed to import the article of wire, and of such size as is not manufactured within the limits of the United States, for the making of cards, necessary to prepare cotton and wool for the making of cloth; but they have not been permitted. Many have solicited Congress for leave to import such goods and merchandise as were ordered and paid for before the issuing of the President's proclamation in November, 1810; but without success. Mr. POTTER was in favor of a recommitment, but for other reasons than those assigned by the mover. He wished it referred, to give an opportunity to ascertain the sentiments of the House on the subject of the repeal, or the partial suspension, of the present non-importation act. Mr. P. said he had found more pleasure in the pursuit of many of the things of this world, than in the possession of them; and he found it, in some measure, so with those who had been very zealous in the pursuit of war. They appeared to him to have taken more pleasure in the pursuit of their favorite object, than in the enjoyment of it; and he was not sorry to see that the war spirit had already began to evaporate, and the cold calculating spirit, so much reprobated at the commencement of this session, becoming more fashionable. Mr. P. had been induced to believe from the zealous patriotism displayed this session, that this was to be a fighting, and not a trading war; that those who had so generously pledged their lives in support of the present war, would have had an opportunity of fighting, and that those who had in the same manner pledged their fortunes in support of any measure adopted by the Administration, would have an opportunity of paying. Mr. P. thought we had commenced this war for the protection of our commerce and the encouragement of our manufactories, and not for the purpose of extending the commerce and encouraging the manufactories of Great Britain; as by this war, with the partial importation act, (contemplated for the purpose of revenue,) we at once destroy our own commerce, by placing in the hands of the English the greatest part we have at sea, leaving the remainder useless, to rot at our wharves. We destroy our manufactories of cotton by the strange selection, in our partial importation act. We give to Great Britain advantages in this war, that she has not enjoyed in time of peace. We surrender to her what many say she has been contending for--the commerce of the world--by giving her an opportunity of supplying us with her merchandise under the flag of her friends; and, in the first onset of this war, implicitly acknowledge our dependence upon them; that we cannot do without their manufactures to clothe the nation, nor without their commerce, to raise a revenue to carry on the war. Mr. P. said, if he had been in favor of this war, it would have been painful to him to be compelled to acknowledge that the people in this country, who pretended to sigh so much for war, would not bear the least privations, or consent in any event to pay taxes, but must depend upon their enemy to clothe them, and to furnish them with an indirect commerce to raise a revenue to fight them with. Mr. P. said a war thus carried on must be without an object--very ruinous to this country and of long duration; for, if Great Britain can send her manufactures into the United States at high prices, and purchase our produce almost at her own price, and be the exclusive carrier, both ways, in her own ships, under the flag of neutrals entirely under her control; she can have no object in making peace. Mr. P. said if the non-importation act should be repealed or suspended in part, agreeable to the letter of the Secretary of the Treasury, and we are to have a trading war, we shall have a revenue sufficient to answer all our purposes, without increasing our duties at all, as we can disband our army and reduce our expenses, as the difference of expense between a trading and a fighting war will be so great that the present rate of duties will answer all our purposes; but, if the non-importation act should not be repealed or suspended, we shall have no importations of importance for the double duties to operate upon; for, if you double your duties under such circumstances, by which you raise one million of dollars, what is the operation upon the consumer? Allowing, which is certainly the fact, that the whole amount of goods in the country at this time is equal to one year's importation, which would have given the Government a revenue of at least fifteen millions of dollars, the present holder of the goods in this country will immediately add the double duties to his present price, which will be increased in consequence of the war; so that the consumers will have to pay the present holders of the goods now in this country at least fifteen millions of dollars, of which the Government's obtaining one million of dollars on future importations, you compel the consumer to pay at least sixteen. Mr. P. said he would for a moment examine the letter from the Secretary of the Treasury on the subject of revenue, recommending a partial suspension of the present non-importation act. He calculates that, by doubling the duties on such partial importation, allowing that we should import only half as much from Great Britain in time of war as in peace, that the duties would amount to the same. Here again, you have no mercy on the consumers; as the operation in the first place will be to give Great Britain double her prices for her goods, on which the Government gets double duties, all which is to be paid by the consumer, when the price of his produce is to decrease in much the same proportion. Mr. P. had heard much, on former occasions, about the encouragement of our manufactories, and, although he never was himself for encouraging them at the expense of the farmer, or the depression of our commerce, yet he could but lament that, after the commercial spirit of the country was almost broken down, and many of our commercial and seafaring citizens had been compelled to quit their former employment and resort to manufacturing for the support of their families, that the labor of that valuable class of citizens were next to be assailed; for, in examining the bill on our tables, in consequence of the letter of the Secretary of the Treasury, recommending the partial importation, what will be the effect upon the cotton factories? All cotton cloth under fifteen pence and over three shillings per square yard, prime cost, is to be prohibited, and all between these two prices are to be imported, so that the quality almost exclusively manufactured, and in general use in this country, is to be permitted. Mr. P. thought this a very left-handed way of encouraging the manufactures of this country; but it seems as though every consideration in time of war as well as peace, is to be sacrificed for the purpose of collecting money from the people in a manner the most likely for them to remain in ignorance of the burdens that the Government imposes upon them. A motion was then made by Mr. RANDOLPH to amend the bill by striking out the words "one hundred" before the words "per centum" in the first section; and the question thereon being taken, it was determined in the negative--yeas 50, nays 75. SATURDAY, June 27. _Naturalization Law._ Mr. LACOCK said that he should not offer any subject for the consideration of the House at this late stage of the session, had he not been convinced the subject was such as required the immediate interposition of Congress. It would be found, by an examination of the naturalization laws, that, after the declaration of war with Great Britain, the courts were prohibited from naturalizing any foreigners, although they might have registered their names and resided in the country during the probationary period required by law. To these persons, it appeared, the Government was pledged, and the change of the relation between the two countries, did not lessen the obligation the Government was under to redeem that pledge, and admit those persons to the rights of citizens. It would, moreover, be recollected that, by the State laws, those persons were made subject to perform militia duty, and that, as volunteers, or otherwise, they would compose a part of our Army; and, perhaps, while in this situation, might be taken and punished as traitors by their Government. No apprehension of danger could be entertained by their admission to the rights of citizens. They were, most of them, attached strongly to our Government, and sought this country as an asylum from oppression, &c. He was, by these considerations, induced to offer the following resolution: "_Resolved_, That a committee be appointed to inquire into the expediency of so amending the naturalization laws of the United States as to admit to the rights of citizenship such aliens as have emigrated from the United Kingdom of Great Britain and Ireland and her dependencies to the United States or her Territories previous to the eighteenth day of June, 1812, and that the committee have leave to report by bill or otherwise." The resolution was agreed to, and Messrs. LACOCK, EMOTT, and TROUP, were appointed a committee accordingly. MONDAY, July 6. _Adjournment._ A message from the Senate informed the House that the Senate have concurred in the resolution for the appointment of a joint committee to wait on the President of the United States, and inform him of the proposed recess of Congress; that the President of the United States did, this day, approve and sign "An act respecting the pay of the Army of the United States;" and that the Senate, having completed the legislative business before them, are ready to adjourn. Mr. NEWTON, from the committee appointed to wait on the President of the United States and inform him of the proposed recess of Congress, reported that the committee had performed that service, and that the President answered, that he had no further communication to make. _Ordered_, That a message be sent to the Senate to inform them that this House, having completed the business before them, are now ready to adjourn; and that the clerk do go with the said message. The clerk accordingly went with the said message; and, having returned, the Speaker adjourned the House until the first Monday in November next. FOOTNOTES: [13] LIST OF REPRESENTATIVES. _New Hampshire._--Josiah Bartlett, Samuel Dinsmoor, Obed Hall, John A. Harper, George Sullivan. _Massachusetts._--Ezekiel Bacon, Abijah Bigelow, Elijah Brigham, William Ely, Isaiah L. Green, Josiah Quincy, William M. Richardson, Ebenezer Seaver, Samuel Taggart, Peleg Tallman, Charles Turner, jr., Laban Wheaton, William Widgery, Leonard White. _Rhode Island._--Richard Jackson, jr., Elisha R. Potter. _Connecticut._--Epaphroditus Champion, John Davenport, jr., Lyman Law, Jonathan O. Mosely, Timothy Pitkin, jr., Lewis B. Sturges, Benjamin Tallmadge. _Vermont._--Martin Chittenden, James Fisk, Samuel Shaw, William Strong. _New York._--Daniel Avery, Harmanus Bleecker, Thomas B. Cooke, James Emott, Asa Fitch, Thomas R. Gold, Robert Le Roy Livingston, Arunah Metcalf, Samuel L. Mitchill, Benjamin Pond, Peter B. Porter, Ebenezer Sage, Thomas Sammons, Silas Stow, Uri Tracy, Robert Whitehill. _New Jersey._--Adam Boyd, Lewis Condit, Jacob Hufty, James Morgan, George C. Maxwell, Thomas Newbold. _Pennsylvania._--William Anderson, David Bard, Robert Brown, William Crawford, Roger Davis, William Findlay, John M. Hyneman, Joseph Lefevre, Aaron Lyle, Abner Lacock, James Milnor, William Piper, Jonathan Roberts, William Rodman, Adam Seybert, John Smilie, George Smith, Robert Whitehill. _Delaware._--Henry M. Ridgely. _Maryland._--Stevenson Archer, Joseph Kent, Philip Barton Key, Peter Little, Alexander McKim, Philip Stuart, Samuel Ringgold, Robert Wright. _Virginia._--Burwell Bassett, John Baker, James Breckenridge, William A. Burwell, Matthew Clay, John Clapton, John Dawson, Peterson Goodwyn, Thomas Gholson, Edwin Gray, Aylett Hawes, John P. Hungerford, Joseph Lewis, jr., William McCoy, Hugh Nelson, Thomas Newton, James Pleasants, jr., John Randolph, John Roane, Daniel Sheffey, John Smith, John Talliaferro, Thomas Wilson. _North Carolina._--Willis Alston, William Blackledge, Thomas Blount, James Cochran, William Rufus King, Nathaniel Macon, Archibald McBride, Joseph Pearson, Israel Pickens, Richard Stanford, Lemuel Sawyer. _South Carolina._--William Butler, John C. Calhoun, Langdon Cheves, Elias Earle, William Lowndes, Thomas Moore, David R. Williams, Richard Wynn. _Georgia._--William W. Bibb, Howell Cobb, Bolling Hall, George M. Troup. _Kentucky._--Henry Clay, Joseph Desha, Richard M. Johnson, Samuel McKee, Anthony New, Stephen Ormsby. _Tennessee._--Felix Grundy, John Rhea, John Sevier. _Ohio._--Jeremiah Morrow. _Mississippi Territory._--George Poindexter, _Delegate_. _Indiana Territory._--- Jonathan Jennings, _Delegate_. [14] Joseph Hamilton Davies, commanding the cavalry in the expedition to Tippecanoe, where he was killed in a night charge upon the Indians. [15] Where he became a member of the Canadian Parliament, and as zealous for King George as he had been in Congress for Mr. Jefferson after his sudden conversion to the Republican party and its offices. When Mr. Randolph would be taunted with his abandonment of Mr. Jefferson, he was accustomed to say that he left him when Barnabas Bidwell (for Barnabas was his name) joined him. [16] Non-importation, non-intercourse, embargo. [17] This allusion is supposed to be to Mr. HARPER, then from South Carolina. [18] Witness Bonaparte. [19] The primitive name of the little stream that runs at the foot of the Capitol grounds, called the Tyber since the Capitol came to its banks, and up and down which members were accustomed to walk in that early day. [20] These salutary statutes, indispensable for the protection of the Treasury, as time was wearing out the evidence which would detect fraud, have since been disregarded by modern Congresses, carried away by a mistaken idea of justice, and the door opened to an endless succession of false claims, supported by fabricated evidence which there is no means to rebut, and plundering the Treasury for the benefit of agents who have grown up into a regular profession for the discovery, invention, and prosecution of claims. [21] The wildest supposition of the abuse of this question, indulged in by its opponents in this debate, falls short of the reality which has since occurred, and is continually occurring in the House of Representatives; for the Senate has, thus far, succeeded in keeping this gag out of that body. In the other branch, the previous question has become the regular engine of legislation, and is constantly used by party majorities, not only to prevent discussion on the most important measures, but to prevent things from being said which the House and the country ought to know; and which, being said, might be fatal to the measure, or its authors. The only safe way of terminating useless debate is that followed in the British House of Commons. It permits all that is useful, and suppresses all that is annoying. The plainest speaker is heard while he gives information: the best is silenced when he ceases to inform, and begins to annoy. The irregular power of the House, exerted in coughing and scraping, will put an end to the harangue of the most wilful speaker. [22] At the burning of the Theatre at Richmond. [23] Mr. Venable. [24] Mr. M. Clay's daughter. [25] The annual expense of our navy already (1856) costs fifteen millions of dollars per annum; and yet all that we have got is only the beginning--the mere commencement, if naval power is intended. [26] The events of the war of 1812, and the events of all the wars of the French Revolution, justify these opinions expressed by Colonel Daviess. These events prove that cruisers and privateers, to cut up commerce, and not fleets to fight battles, are the true American means of naval warfare. [27] This was quite an extemporaneous method of selling an estate. To render the transaction more intelligible, it may be known that Henry was paid $50,000 at that time by the American Government for his disclosures, and it may be supposed that this impromptu purchase of "_St. Martial, the Crillon estate in Lebeur, near the frontier of Spain_," was a method which the two romantic friends took to divide the money which they had earned. [28] "Mr. Calhoun has since stated to me, that the reasons given by Mr. Randolph for refusing to agree to the injunction of secrecy were, 1st. That he doubted the right of the committee to enjoin secrecy; 2d. That having just returned from Baltimore, he had heard, while in that city, that the intention to lay an embargo was already known in that city, and that the British Consul and a great mercantile house there were then acting on the information. J. Q." [29] The practice of pronouncing funeral eulogiums on deceased members had not, at this time, been introduced into Congress. CONFIDENTIAL SUPPLEMENTAL JOURNAL OF SUCH PROCEEDINGS OF THE FIRST SESSION OF THE TWELFTH CONGRESS, AS DURING THE TIME THEY WERE DEPENDING, WERE ORDERED TO BE KEPT SECRET, AND RESPECTING WHICH THE INJUNCTION OF SECRECY WAS AFTERWARDS REMOVED BY ORDER OF THE HOUSE. WEDNESDAY, April 1, 1812. A _confidential_ Message was received from the President of the United States, by Mr. COLES, his Secretary; which he delivered in at the Speaker's table: Whereupon, the House was cleared of all persons except the Members, Clerk, Sergeant-at-Arms, and Doorkeeper, and the doors were closed. The Message was then read at the Clerk's table, and is as follows: _To the Senate and House of Representatives of the United States_: Considering it as expedient, under existing circumstances and prospects, that a general embargo be laid on all vessels now in port, or hereafter arriving, for the period of sixty days, I recommend the immediate passage of a law to that effect. JAMES MADISON. APRIL 1, 1812. On motion of Mr. PORTER, the Message was referred to the committee appointed on that part of the President's Message at the commencement of the session, which relates to Foreign Relations. And, after a short lapse of time, Mr. Porter, from the Committee on Foreign Relations, to whom was referred the above-cited Message of the President of the United States, presented a bill laying an embargo on all ships and vessels in the ports and harbors of the United States; which was read twice, and committed to a Committee of the whole House to-day. The House accordingly resolved itself into a Committee of the Whole on the said bill; and, Mr. BOYD then moved to amend it by striking out of the first section sixty days, and insert one hundred and twenty days. He said a gentleman declared the measure to be a precursor to war--the time will be much too short for the great amount of American property now abroad to return; the motion was negatived. Mr. SEYBERT viewed the subject as of vast importance; he considered that the proposition came to the House in a very questionable shape; he wanted information, and he called upon the Committee of Foreign Relations to say whether it is to be considered as a peace measure or a precursor to war. Mr. GRUNDY (one of the committee) said he was willing to answer the very proper inquiry of the gentleman from Pennsylvania, (Mr. SEYBERT,) that he understands it as a war measure, and it is meant that it shall lead directly to it; that with any other view there can be no propriety in it; as a peace measure, he had no idea that the President would have recommended it, nor would the committee have agreed to it. He hoped the gentleman from Pennsylvania would now be satisfied, and prepare his mind to vote for it. Mr. MCKEE objected to the last section, on account of the penalties which it proposed, which he considered altogether unimportant, as it is to be a precursor to war, it being merely precautionary and for a short time. He made some other inquiries respecting the section, and why such provisions were in it. Mr. PORTER said the bill was draughted according to the wishes and directions of the Secretary of the Treasury. Mr. STOW said the subject before the committee ought to be considered of very great importance. If, as some gentlemen say, it is a precursor to war, there were some very serious questions to be asked--What is the situation of our fortresses? What is the situation of our country generally? He would answer, they are defenceless, particularly the fortifications in New York, which are unmanned and unarmed. He said this fact appeared by a letter now in possession of a member of the House, which has very lately been received from Judge Livingston, of New York. Mr. S. said, that to try the question whether we will now lay an embargo, he moved that the first section of the bill be stricken out. Mr. CLAY (the SPEAKER) then warmly expressed his satisfaction and full approbation of the Message, and the proposition now before the Committee. He approved of it because it is to be viewed as a direct precursor to war. He did not wish upon this occasion to hear of the opinion of Brockholst Livingston or any other man. No gentleman can question the propriety of the proposition. Gentlemen who said so much about the want of preparation are not for war. He considered this a war measure, and as such he should discuss it. Sir, said Mr. C., after the pledges we have made, and the stand we have taken, are we now to cover ourselves with shame and indelible disgrace by retreating from the measures and grounds we have taken? He then stated our measures, our pledges, and the great injuries and abuses we have received. He said, what would disgrace an individual under certain circumstances would disgrace a nation. And what would you think of one individual who had thus conducted to another, and should then retreat? He did not think we were upon this occasion in the least embarrassed by the conduct of France in burning our vessels; that may be a subject of future consideration. We have complete evidence as to the enemy whom we have selected. As weak and imbecile as we are, we would combine France if necessary. He said there was no intrinsic difficulty or terror in the war: there was no terror except what arises from the novelty. Where are we to come in contact with our enemy? On our own continent. If gentlemen please to call these sentiments Quixotic, he would say he pitied them for their sense of honor. We know no pains have been spared to vilify the Government. If we now proceed we shall be supported by the people. Many of our people have not believed that war is to take place. They have been wilfully blinded. He was willing to give them further notice. It remains for us to say whether we will shrink or follow up the patriotic conduct of the President. As an American and a member of this House, he felt a pride that the Executive had recommended this measure. Mr. RANDOLPH said he was so impressed with the importance of the subject and the solemnity of the occasion, that he could not be silent. Sir, said Mr. R., we are now in conclave; the eyes of the surrounding world are not upon us. We are shut up here from the light of Heaven; but the eyes of God are upon us. He knows the spirit of our minds. Shall we deliberate upon this subject with the spirit of sobriety and candor, or with that spirit which has too often characterized our discussions upon occasions like the present? We ought to realize that we are in the presence of that God who knows our thoughts and motives, and to whom we must hereafter render an account for the deeds done in the body. He hoped the spirit of party and every improper passion would be exorcised, that our hearts might be as pure and clean as fall to the lot of human nature. He was confident in declaring that this was not a measure of the Executive--that it was engendered by an extensive excitement upon the Executive. He agreed with the gentleman from Pennsylvania (Mr. SEYBERT) that it comes to us in a very _questionable shape_, or rather in an _unquestionable shape_--whose ever measure it is, the people of the United States will consider it as a subterfuge for war; as a retreat from the battle. We some years ago resolved that we must have _war_, _embargo_, or _submission_--we have not had war or submitted--we must therefore have embargo. It appears to be limited to sixty days; at the expiration of that time will any one say we shall be prepared for war? Sir, we are in the situation of a debtor who promises to pay his note at the bank in sixty days--we shall prolong the time sixty days, and sixty days after that, until deferred hope makes the heart sick. He would tell the honorable Speaker that, at the end of sixty days, we shall not have war, and the reason is, the Executive dare not plunge the nation into a war in our unprepared state. Mr. BOYD, of New Jersey, said, while he admitted the fire and spirit of the honorable Speaker, he thought he would do well to be considerate. He asked whether we were prepared to assail our enemy, or repel her attacks? He asked, whether it is wise in an unarmed nation, as we are, to commence hostilities against one so completely prepared? The motion to strike out the first section was lost--ayes 35, noes 70. Mr. SEYBERT said, that in voting for the several important measures which Congress have agreed to this session, he felt himself pledged to go to war; that he was in favor of an embargo as a precautionary measure and precursor to war. When we voted for the twenty-five thousand men he supposed the Executive intended war--but he has now such information from a friend in whom he confides, as leads him to believe that offensive operations are not meant. We ought to be better prepared before we engage in war. He had observed in the Baltimore papers that the British have ordered a squadron and twenty thousand men for our coast. Mr. SMILIE expressed his surprise at the observations of his friend and colleague: he did not know from what quarter he had obtained his information, that the President does not mean war. Does he believe he has all this time been deceiving the Legislature? He had heard but one sentiment from the President, which is, _that we must make war_ unless Great Britain relents. The President had always supposed that the embargo must precede war--the only difference has been as to the time, which has been finally compromised. The embargo is intended as a war measure. He would assure his colleague it was intended by both the Executive and the Committee of Foreign Relations. That being now up, he would observe that, at the beginning of the session, he was not so warm for war as many were, but he was for commercial restrictions. He was not for the twenty-five thousand men; but as the House have determined otherwise he would now go to war--if we now recede we shall be a reproach among all nations. Mr. SEYBERT then said, that his intention was to resist seriously Great Britain; he would be plain; but he was not for going to war unprepared. When the bill for raising the twenty-five thousand men was before the House, it was then declared to be according to the wishes of the Secretary at War--since that time the Secretary has said it was not his wish, from which he concluded it was not the wish of the President. Mr. RANDOLPH proposed to read, from memoranda in his possession, of what occurred in the Committee of Foreign Relations, and a conference between them and the Secretary of State; which was objected to. Mr. BASSETT (Chairman) considered it in order. Mr. CALHOUN appealed. The Chairman's decision was confirmed--yeas 60. Mr. RANDOLPH said, it will appear that the embargo is not preparatory to war, that is to say, it was not necessarily so, and of course not of the character which the Speaker has considered it. From his minutes (among other facts) it appeared that Mr. Monroe said to the committee that the President thought we ought to declare war before we adjourn, unless Great Britain recedes, of which there was no prospect. That there was conversation about an embargo. Mr. Monroe was asked by some of the committee whether the President would recommend it by message; he answered that he would, if he could be assured it would be acceptable to the House. He also said Mr. Barlow had been instructed to represent to the French Government our sense of the injuries received, and to press upon them our demands for reparation--that if she refused us justice, the embargo would leave the policy as respects France, and indeed of both countries, in our hands. He was asked if any essential alterations would be made within sixty days, in the defence of our maritime frontier or seaports? Mr. M. answered that pretty considerable preparations would be made. He said New York was in a respectable state of defence, but not such as to resist a formidable fleet; but that it was not to be expected that such a kind of war would be carried on. It was replied that we must expect what commonly happens in wars. Mr. M. said that, although a great distress and injury might take place in one part of the Union, it would not essentially affect the population or resources of the Union at large. As to the prepared state of the country, he said, in case of a declaration of war, the President would not feel himself bound to take upon himself more than his share of the responsibility. Mr. M. said that the unprepared state of the country was the only reason why ulterior measures should be deferred. Mr. R. then said that the step we are about taking is too high a price to pay for the consistency of gentlemen who think they have gone too far to recede; it is too expensive to bolster them up in this way. He asked what will be the situation of this people in sixty days? Put your note into the bank, and see how soon it will be out. What will be the situation of this unhappy, misguided country? What would it have been for sixty, one hundred, or three hundred and sixty-five days past? He had hoped not to have seen the old story of the dog worrying the cat, &c., realized. Are the majority, in consequence of having been goaded by the presses, to plunge the people into a war by bringing them first to the whipping-post and then by exciting their spirit? He would assure the House the spirit of the people is not up to it at this time; if so, there would be no necessity of those provocations to excite this false spirit--this kind of Dutch courage. If you mean war, if the spirit of the country is up to it, why have you been spending five months in idle debate? Messrs. GRUNDY and CALHOUN said they were not impressed with a recollection of the facts which occurred before the Committee of Foreign Relations in the same manner as had been stated by Mr. RANDOLPH. They did not recollect that Mr. Monroe said the embargo would leave the policy, as respects both belligerents, in our hands. Mr. PORTER said he was in favor of an embargo, as a measure which ought to precede war; but it was very important that we should be prepared before we commence war. He did not believe it was possible to commence it with safety within four months from this time. Such a measure as an embargo would be of immense injury to the State of New York, on account of their flour which has gone to market. The committee rose and reported the bill without amendment, and the question was, Shall it be engrossed for a third reading? Mr. QUINCY then moved that the injunction of secrecy be taken off from the proceedings. Mr. PITKIN said there was but one precedent of an embargo being passed with closed doors. The ayes and noes were agreed to be taken on Mr. QUINCY'S motion. Mr. WRIGHT then made a question of order on Mr. QUINCY'S motion. The SPEAKER decided it was not in order, another question being before the House. Mr. LITTLE then moved the previous question, which he soon withdrew. Mr. STOW then expressed his alarm and astonishment at the course we are taking. He said the country was wholly unprepared to enter into a war within the time which had been mentioned. He warned gentlemen of their danger, and the ruin which threatened our defenceless towns. The authority which he had cited ought to have more weight than the hear-says of some young members in this House. The elections of the maritime parts of the country will put your places into the possession of your political adversaries. You may be assured you tread on deceitful ground. The intelligent party of the community at the North are against the war. There is no calculating the injury it will be to the State of New York. Mr. BASSETT spoke in favor of the measure, and respecting the injuries we have received from Great Britain. Mr. ROBERTS then moved for the previous question. Mr. SHEFFEY called for the ayes and noes. The motion for the previous question was carried--ayes 66, noes 40. The question was, Shall the bill be engrossed for a third reading?--Carried--ayes 71, noes 30. The question was then, on what day shall it be read? Mr. GRUNDY moved it be read immediately. Mr. MACON proposed to-morrow. Mr. QUINCY said (it then being half-past seven o'clock in the evening) he had not been able to take any part in the debate; that the measure which had been thus hurried, was extremely interesting to his immediate constituents, and he was very anxious to express his sentiments upon it--but he was so fatigued with the tedious sitting, that he was unable to do it this evening, and hoped the House would indulge him until to-morrow. He would not condescend to debate such a question in the present state of the House, and he asked for the ayes and noes on Mr. MACON'S motion, which were agreed to be taken. Mr. D. R. WILLIAMS said he was desirous to grant the request of the gentleman from Massachusetts. It was in his opinion a very reasonable one. The deportment of the other side of the House had, during the whole of the session, been very gentlemanly towards the majority; and, sir, said he, will you now refuse to give them an opportunity to express their sentiments upon a measure which, in their view, is important? He said that policy on the part of the majority ought to dictate the indulgence asked for. The majority now stand on high ground--what will be said, and what will be the consequence of a refusal? We shall lose the ground on which we now stand. Mr. MACON was of the same opinion; he thought the minority had acted with more propriety than he ever knew in a minority. Mr. WRIGHT objected, although he was willing to acknowledge the minority had conducted with propriety. Mr. NELSON said it appeared to him that according to the importance of subjects, so is our precipitancy. Is the minority thus to be dragooned into this measure? For one, he wished to reflect upon it. The first intimation he had of this measure, was the Message. If it is intended as a precautionary measure, as the precursor to war, as some gentlemen have treated it, it is a question of doubt in his mind. He thought it better to arm our merchantmen; to grant letters of marque and reprisal; and repeal our non-importation law. We have already suffered enough under our restrictive system. If we pass the bill to-night, it cannot be a law until the other branch act upon it. When we are going to war, it will be well known that we have the spontaneous support of more than one-half the community. Mr. ALSTON said he would have voted on the motion, if the gentleman had not asked for the ayes and noes; but as he appears desirous to marshal one side of the House against the other, he was not disposed to gratify him in his request. Mr. WIDGERY declared war to be inevitable, and it ought not to be delayed; on this account he was against postponing the bill until to-morrow. If we do it at all, it ought to be speedily. It is not to be believed that argument will change a single vote. The responsibility is on the majority. The question on reading to-morrow was negatived--57 to 54. It was then read a third time; and on the question, Shall the bill pass? it was carried--ayes 70, noes 41. _Ordered_, That the title be, "An act laying an embargo on all ships and vessels in the ports and harbors of the United States for a limited time." Mr. GRUNDY and Mr. WRIGHT were appointed a committee to carry the said bill to the Senate, and to inform them that the House of Representatives have passed the same, in confidence, and to desire their concurrence therein. And the doors were then opened. THURSDAY, April 2. On motion of Mr. GRUNDY, the House was cleared of all persons except the members, Clerk, Sergeant-at-Arms, and Doorkeeper, and the doors were closed. Mr. GRUNDY, from the Committee on Foreign Relations, presented a bill "in addition to the act, entitled 'An act to raise an additional military force, passed the eleventh of January,'" 1812, which was read twice, and committed to a Committee of the Whole to-day. A question was made and taken, whether the provisions contained in the bill were of such a nature as to require secrecy in the discussion, and passed in the affirmative--yeas 71, nays 34. The House then resolved itself into a Committee of the Whole on the said bill; and, after some time spent therein, the bill was reported without amendment, and ordered to be engrossed, and read the third time to-day. The said bill was accordingly engrossed, and read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas 73, nays 20. _Ordered_, That the title be, "An act in addition to the act, entitled 'An act to raise an additional military force, passed on the eleventh of January, 1812.'" Messrs. CALHOUN and WILLIAMS were appointed a committee to carry the said bill to the Senate, and to inform them that the House of Representatives have passed the same, in confidence, and to desire their concurrence therein. The doors were then opened. FRIDAY, April 3. On motion of Mr. GRUNDY, the House was cleared, and the doors were closed. A motion was then made by Mr. GRUNDY, that the House do come to the following resolution: _Resolved_, That a committee be appointed to inquire whether there has been any, and if any, what violation of the secrecy imposed by this House during the present session, as to certain of its proceedings, and that the said committee have power to send for persons, papers, and records. And the question thereon being taken, it passed in the affirmative--yeas 106, nays 3. Messrs. GRUNDY, TROUP, ROBERTS, BRECKENRIDGE, and TALLMADGE, were appointed the committee. Mr. PORTER, from the Committee on Foreign Relations, presented a bill authorizing the President of the United States to appoint additional Brigadier Generals, in certain cases; which was read the first time: When a message was received from the Senate, by a committee of that body, appointed for the purpose, consisting of Messrs. BIBB and CAMPBELL, of Tennessee, notifying the House that the Senate have passed the bill, entitled "An act laying an embargo on all ships and vessels in the ports and harbors of the United States, for a limited time," with amendments; in which they desire the concurrence of the House. On motion of Mr. PORTER, the bill reported by the Committee on Foreign Relations, this day, was ordered to lie on the table. The House proceeded to consider the amendments of the Senate to the bill, entitled "An act laying an embargo on all ships and vessels in the ports and harbors of the United States;" and the said amendments being read at the Clerk's table, a motion was made by Mr. LEWIS, that the said bills and amendments be postponed indefinitely. Mr. QUINCY expressed in strong terms his abhorrence of the measure. He said that if he believed it to be a preparation for war, he should have a less indignant sense of the injury than he felt now, as he deemed it pure, unsophisticated, reinstated embargo. The limitation of sixty or ninety days gave little consolation or hope to him, because he knew how easily the same power which originated could continue this oppressive measure. He said that his objection was, that it was not what it pretended to be; and was what it pretended not to be. That it was not embargo preparatory to war; but, that it was embargo as a substitute for the question of declaring war. It was true that it was advocated as a step incipient to a state of war, and by way of preparation for it, by gentlemen whose sincerity he was bound to respect. He could not, however, yield the conviction of his senses and reflections to their asseverations; nor declare, in complaisance to any, let them be as respectable as they might, that he saw in this measure more or less than its features indicated. Is this embargo what it pretends to be--preparation for war? In the first place, no sudden attack is expected from Great Britain. It is not suggested that we have a tittle of evidence relative to any hostility of her temper which is not possessed by the whole community. The President has not communicated to us one document or reason for the measure. His Message merely notifies to us his will and pleasure. An embargo, as preparatory to war, presupposes some new and hidden danger, not known to the mercantile community. In such case, when the Government sees a danger of which the merchant is unapprised, it may be wise to stay the departure of property until the nature and extent of it can be explained, but not a moment longer. For, let the state of things be that of war or peace, the principle is precisely the same. The interest which the community has in the property of individuals is best preserved by leaving its management to the interest of the immediate proprietor, after he is made acquainted with all the circumstances of the times which have a tendency to increase its exposure. The reason of an embargo, considered as an incipient step to war, is either to save our property from depredation abroad, or keep property which we want at home. Now it happens that the nature of the great mass of our exports is such that there is little danger of depredation from the enemy we pretend to fear abroad, and little want of the articles most likely to be exposed at home. The total export of last year amounted, as appears by the report of the Secretary of the Treasury, to $45,000,000. It also appears by that report, our exports to Great Britain and her dependencies, and also to those of Spain and Portugal, were $38,500,000. Nearly seven-eighths in value of our whole exports have been, and continue to be, to the dominions of that very power from which so much is pretended to be apprehended. Now, it is well known that these articles are of very great necessity and importance to her, and whether, even in the case of actual war between our countries, Great Britain would capture them, might be questionable. But that she would capture them on the mere preparation, before one really hostile act was committed on our part, is not only unreasonable, but absolutely absurd to expect. This very commerce which, by the passing of this bill, you indicate it is her intention to prohibit or destroy, it is her obvious and undeniable policy to unite and cherish; besides, the articles are in a very great proportion perishable, which, by this embargo, are to be prohibited from going to market. Which is best--to keep them at home, to a certain loss and probable ruin, or adventure them abroad to a possible loss and highly probable gain? Ask your merchant. Ask common sense. But it is said "we must protect our merchants." Heaven help our merchants from _embargo-protection_! It is also said that "the present condition of things has been brought upon the country by the merchants; that it was their clamor, in 1805 and 1806, which first put Congress upon this system of coercive restriction, of which they now so much complain." It is true that, in those years, the merchants did petition; not for embargo, not for commercial embarrassment and annihilation, but for protection. They, at that time, really thought that this national Government was formed for protection, and that it had at heart the prosperity of all the great interests of the country. If "it was a grievous fault, grievously have _the merchants_ answered it." They asked you for relief, and you sent them embarrassment. They asked you for defence, and you imposed embargo. They "asked bread, _and you_ gave them a stone." They "asked a fish, _and you_ gave them a serpent." Grant that the fault was great, suppose that they did mistake the nature and character of the Government, is the penalty they incurred by this error never to be remitted? Permit them once to escape, and my word for it, they will never give you an apology for this destructive protection. If they do, they will richly deserve all the misery which, under the name of protection, you can find means to visit upon them. Your tender mercies are cruelties. The merchants hate and spurn this ruinous defence. Mr. Q. then took notice of an intimation which had been thrown out in relation to an express, sent off on the day preceding the Message of the President, giving notice that the embargo would be proposed the ensuing day. He said that there was no necessity of speaking of that matter by distant allusions, as if there was any thing that sought concealment. That is not an affair, said Mr. Q., that shuns the light. I had the honor and the happiness, in conjunction with another member of this House, from the State of New York, (Mr. EMOTT,) and a Senator from Massachusetts, (Mr. LLOYD,) to transmit that intelligence to Philadelphia, New York, and Boston, by an express which started on Tuesday afternoon. In doing this, we violated no obligation, even of the most remote and delicate kind. The fact that the Committee of Foreign Relations had decided that an embargo should be proposed on Wednesday, was openly avowed here on Tuesday, by various members of that committee, to various members of this House. Among others, I was informed of it. I shall always be grateful to the gentleman who gave me that information. Indeed, the whole commercial community are under great obligations to the Committee of Foreign Relations for their feeling and patriotism in resolving on that disclosure. It enabled us, by anticipating the mail, to give an opportunity for great masses of property to escape from the ruin our Cabinet was meditating for them. Yes, sir; to escape into the jaws of the British lion, and of the French tiger, which are places of refuge, of joy and delight, when compared with the grasp and fangs of this hyena embargo. What was the effect of this information? When it reached Philadelphia, the whole mercantile class was in motion, and all that had it in their power were flying in all directions from the coming mischief, as if it were a plague and a pestilence. Look, at this moment, on the river below Alexandria, and the poor seamen, towing down their vessels against wind and tide, anxious only to escape from a country which destroys under the mask of preserving. Mr. GOLD.--The first object with a wise Legislature is, Is the law expedient? The second object, which should never for a moment escape attention, Can the law be executed? Under the first head, the advocates of embargo disclaim the measure as appertaining to the odious restriction system: they present it as the old-fashioned, legitimate precursor of war, as the provident measure of Government to protect your merchants against reprisals resulting from meditated hostilities. In this view can you be prepared for war at the expiration of the embargo? Will you open your campaign at mid-summer? Whatever appearance this measure may now assume, the country have grounds to fear a relapse into the old system--you will go again back into Egypt. But, on the second head, can your law be executed? Does the history of the past in our own, or any other country, warrant such an expectation? Can you watch the extended line, of forty-five degrees north, for hundreds of miles, so as to prevent a transit for commercial exchange, indispensable to the necessities of the country? No, sir, it is a vain expectation; your army of 25,000 could not prevent the intercourse: their sympathies would rather lead them to connive at what they could not fail to see. Great Britain, with a canvas that whitens every sea, her revenue boats always in motion, and tide waters at every inlet or avenue, has not been able to prevent the smuggling in of about one-half the tea consumed in that Kingdom. Such is the conviction of English writers! It may be found in the appendix to McCartney's Embassy, and in the Life of the second Pitt. Where men have expended their substance in purchasing and collecting an article for export, under the subsisting faith of your laws permitting such export, it is not mere injustice, but cruelty in the Government towards its citizens to arrest such a commerce by an _ex post facto_ law, and consign those concerned to the prison walls, and their families to beggary. Nothing short of the most imperious necessity, the safety of the community, can justify so severe a proceeding. But, sir, with a single exception of timber, the commerce between the northern frontiers and Canada, will, for the ninety days of this embargo, be little else than the mere exchange of articles indispensably necessary to the poor frontier settlers. How are they to be supplied with the article of salt? Believe me, sir, the morality of no part of the United States, or of any nation on earth, will restrain persons under such circumstances from eluding the laws. Does any man believe that this frontier traffic is not as beneficial to us as to our enemies? Can your law fail of producing more injury and loss to the United States, than benefit? Have you not witnessed, sir, that while you was exercising paternal care in enacting an embargo by water, for the seaboard, that our merchants and navigators, roused as by a shock of thunder, escaped from your shores, with their vessels, as from a destroying angel--from pestilence and death? Mr. BLEECKER, in a speech of about twenty minutes, made an able, solemn, and impressive address to the House, urging them to ponder, and desist from the dangerous course they were pursuing, and forewarned them of the calamitous consequences that would inevitably result. Mr. MITCHILL said, in viewing political subjects and dangers, some are inclined to look through political microscopes, which diminish them; others, misled by their imaginations, look through political telescopes, and are apt to magnify and enhance them. He, for one, was for viewing our situation with his naked optics--for looking at it as it really is. He could not be considered as less alive to the interests and happiness of the inhabitants of that city, respecting whom so much sensibility has been expressed, than any other gentleman. There were his intimate friends, connections, and what little property he possessed. No one could feel more for their sufferings under commercial restrictions, or in case of an assault upon it by the enemy. And if he was to consult only his personal sensibilities, they were all in favor of the people of that country with whom we are to enter into a conflict. He has no prejudice against them. He there received his education. He has lived in North and South Britain. From actual residence, he knows them from the Grampian Hills to Dover. He knows them, however, to be a proud, overbearing nation. From former residence, and also from recent intelligence, (and that within a few days, by late arrivals,) he knows that they consider us a sort of a generation whom they have a right to despise. We are viewed in this unworthy, degraded situation, not on account of our want of resources, or population; but because they believe we cannot stand together--that we have no confidence in ourselves--that we cannot lead armies into their countries. Their object has been, since the year 1806, to divide and distract us, and to prevent our taking efficient measures. Sir, what has been the cause of our present condition? It is well known that, in 1806, he was made the organ of his constituents, as other gentlemen were for Salem and other commercial places, to present to Congress their plaints and wailings, on account of the grievances they suffered upon the subject of carrying colonial produce, and the continuity of voyage. The archives of this House will prove this. They declared they should be ruined if the British doctrine should be countenanced. The Government were goaded by these applications for relief. The Government began, and continued pacific measures, until we have got into our present situation. Mr. WIDGERY spoke with much warmth in favor of the embargo and war. Mr. STUART said, if it was in order, he would ask the gentleman from Massachusetts (Mr. WIDGERY) a few questions. He would ask that gentleman if he was, during the last embargo, a ship owner? If so, did he not go to England during the embargo? If so, how did he go? Mr. WIDGERY answered that he went by water. The SPEAKER observed these questions were not in order. Mr. STUART said if they were not in order he would sit down. The question was now taken on indefinite postponement, and determined in the negative--yeas 42, nays 72. On motion of Mr. ROBERTS, the previous question was demanded by a majority of the members present: Whereupon the question was taken, in the form prescribed by the rules and orders of the House, to wit: "Shall the main question be now put?" and passed in the affirmative--yeas 67, nays 44. The SPEAKER then decided that the main question to now put, was: "Will the House concur with the Senate in the amendments made to the bill?" and not upon the proposition for postponement. From which decision Mr. RANDOLPH moved an appeal; which being seconded, the question was put, "Is the decision of the Chair correct?" and decided in the affirmative. SATURDAY, April 4. The House was cleared of all persons, and the doors were closed. _Additional Brigadier Generals._ The House resumed the consideration of the bill authorizing the President of the United States to appoint additional Brigadier Generals, &c. Mr. SAMMONS.--Mr. Speaker: If those officers are intended to command the militia, I trust in God this bill will not pass. What! shall our militia be commanded by officers commissioned by the President? Can the President be as well acquainted with the qualifications and abilities of officers in the militia as the Governors of the States? It cannot be expected. What spirit can be in the people to support the war if the Federal Government takes away the right of the States to appoint the officers for commanding their militia? If our Government takes away our liberty, is it necessary to contend with a foreign Government for our rights? In former times the officers were appointed in such parts as the men were raised: that is not the case now. Some time in the session, I was told by some of the Southern members, "we will give you officers if you will find the men." It is a fact, that, before our New York troops were raised, a Major from North Carolina was appointed; and was ordered to take the command of troops enlisted in New York. Governor Hull's son, from Detroit, is appointed to the command of one of our companies, and is on command with his father as his aid. Where is the justice? Shall we have companies without captains, or shall the United States pay for two captains? (for Hull is returned in Colonel Schuyler's regiment as captain.) He cannot belong there. In such proceedings I almost tremble for the consequence to my country. There is no necessity or propriety in appointing more Generals, in my opinion, at present, for our regulars--for the President is directed to appoint eight Brigadiers and two Major Generals. I believe they are not all appointed, and of those that are appointed, I hear one is sent home because they have no command for him. If this bill passes, our Government will be as bad as that of Great Britain before the Revolution. In the Declaration of Independence we complain of the King, that "he has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance." But if those ten Generals are not sufficient, this House has passed a bill at the request of the President of the United States to commission and appoint the officers for fifty thousand militia volunteers. There are limits empowering how many he shall appoint--he may appoint twelve Brigadiers and four Major Generals--will not that be as many as he wanted? MONDAY, April 13. A confidential message was received from the Senate by a committee of that body appointed for the purpose, consisting of Mr. VARNUM and Mr. ANDERSON, notifying the House that the Senate have passed the bill, entitled "An act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time," with amendments; in which they desire the concurrence of the House. The said amendments were read at the Clerk's table: When a motion was made by Mr. GOLDSBOROUGH that the said bill be _postponed indefinitely_. And the question thereon being taken, it was determined in the negative--yeas 35, nays 62. The question was then taken to concur in the said amendments, and passed in the affirmative. Mr. SMILIE and Mr. PLEASANTS were appointed a committee to deliver a message to the Senate, and inform them that the House of Representatives have concurred in their amendment to the bill aforesaid. The doors were then opened. TUESDAY, April 14. Mr. CRAWFORD, from the Joint Committee for Enrolled Bills, reported that the committee had examined an enrolled bill "to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time," and had found the same to be truly enrolled: When, the SPEAKER signed the said bill. Mr. CRAWFORD and Mr. TURNER were appointed a committee to carry the said bill to the Senate for the signature of their President. The doors were then opened; and having remained so for some time, they were again closed;. When, Mr. TURNER, from the above-mentioned committee, reported that the committee had presented to the President of the United States the said bill, and that they were instructed by the President to inform the two Houses that he had approved and signed the same. On motion of Mr. CALHOUN, the injunction of secrecy imposed upon the said bill and the proceedings thereon, were then removed. The doors were then opened. MONDAY, June 1. A confidential Message, in writing, was received from the President of the United States, by Mr. Edward Coles, his Secretary; which he delivered in at the Speaker's table. The House was then cleared of all persons, except the Members, Clerk, Sergeant-at-Arms, and Doorkeepers, and the doors were closed; and the said Message was read, and is as follows: [Confidential.] _To the Senate and House of Representatives of the United States_: I communicate to Congress certain documents, being a continuation of those heretofore laid before them on the subject of our affairs with Great Britain. Without going back beyond the renewal, in one thousand eight hundred and three, of the war in which Great Britain is engaged, and omitting unrepaired wrongs of inferior magnitude, the conduct of her Government presents a series of acts, hostile to the United States as an independent and neutral nation. British cruisers have been in the continued practice of violating the American flag on the great highway of nations, and of seizing and carrying off persons sailing under it; not in the exercise of a belligerent right, founded on the law of nations against an enemy, but a municipal prerogative over British subjects. British jurisdiction is thus extended to neutral vessels, in a situation where no laws can operate but the law of nations, and the laws of the country to which the vessels belong; and a self-redress is assumed, which, if British subjects were wrongfully detained and alone concerned, is that substitution of force, for a resort to the responsible Sovereign, which falls within the definition of war. Could the seizure of British subjects, in such cases, be regarded as within the exercise of a belligerent right, the acknowledged laws of war, which forbid an article of captured property to be adjudged, without a regular investigation before a competent tribunal, would imperiously demand the fairest trial, where the sacred rights of persons were at issue. In place of such a trial, these rights are subjected to the will of every petty commander. The practice, hence, is so far from affecting British subjects alone, that, under the pretext of searching for these, thousands of American citizens, under the safeguard of public law, and of their national flag, have been torn from their country, and from every thing dear to them; have been dragged on board ships of war of a foreign nation, and exposed, under the severities of their discipline, to be exiled to the most distant and deadly climes, to risk their lives in the battles of their oppressors, and to be melancholy instruments of taking away those of their own brethren. Against this crying enormity which Great Britain would be so prompt to avenge if committed against herself, the United States have in vain exhausted remonstrances and expostulations; and that no proof might be wanting of their conciliatory dispositions, and no pretext left for a continuance of the practice, the British Government was formally assured of the readiness of the United States to enter into arrangements, such as could not be rejected, if the recovery of British subjects were the real and the sole object. The communication passed without effect. British cruisers have been in the practice also of violating the right and the peace of our coasts. They hover over and harass our entering and departing commerce. To the most insulting pretensions they have added the most lawless proceedings in our very harbors; and have wantonly spilt American blood within the sanctuary of our territorial jurisdiction. The principles and rules enforced by that nation, when a neutral nation, against armed vessels of belligerents hovering near her coasts and disturbing her commerce, are well known. When called on, nevertheless, by the United States, to punish the greater offences committed by her own vessels, her Government has bestowed on their commanders additional marks of honor and confidence. Under pretended blockades, without the presence of an adequate force, and sometimes without the practicability of applying one, our commerce has been plundered in every sea; the great staples of our country have been cut off from their legitimate markets; and a destructive blow aimed at our agricultural and maritime interests. In aggravation of these predatory measures, they have been considered as in force from the dates of their notification; a retrospective effect being thus added, as has been done in other important cases, to the unlawfulness of the course pursued. And to render the outrage the more signal, those mock blockades have been reiterated and enforced in the face of official communications from the British Government, declaring, as the true definition of a legal blockade, "the particular ports must be actually invested, and previous warning given to vessels bound to them, not to enter." Not content with these occasional expedients for laying waste our neutral trade, the Cabinet of Britain resorted, at length, to the sweeping system of blockades, under the name of Orders in Council; which has been moulded and managed as might best suit its political views, its commercial jealousies, or the avidity of British cruisers. To our remonstrances against the complicated and transcendent injustice of this innovation, the first reply was, that the orders were reluctantly adopted by Great Britain, as a necessary retaliation on decrees of her enemy, proclaiming a general blockade of the British Isles, at a time when the naval force of that enemy dared not issue from his own ports. She was reminded, without effect, that her own prior blockades, unsupported by an adequate naval force actually applied and continued, were a bar to this plea: that executed edicts against millions of our property could not be retaliation on edicts confessedly impossible to be executed: that retaliation, to be just, should fall on the party setting the guilty example, not on an innocent party, which was not even chargeable with an acquiescence in it. When deprived of this flimsy veil for a prohibition of our trade with her enemy, by the repeal of his prohibition of our trade with Great Britain, her Cabinet, instead of their corresponding repeal, or a practical discontinuance of its orders, formally avowed a determination to persist in them against the United States, until the markets of her enemy should be laid open to British products; thus asserting an obligation on a neutral power to require one belligerent to encourage, by its internal regulations, the trade of another belligerent; contradicting her own practice towards all nations, in peace as well as in war; and betraying the insincerity of those professions which inculcated a belief, that, having resorted to her orders with regret, she was anxious to find an occasion for putting an end to them. Abandoning still more all respect for the neutral rights of the United States, and for its own consistency, the British Government now demands, as prerequisite to a repeal of its orders as they relate to the United States, that a formality should be observed in the repeal of the French decrees, no wise necessary to their termination, nor exemplified by British usage; and that the French repeal, besides including that portion of the decrees which operate within a territorial jurisdiction, as well as that which operates on the high seas, against the commerce of the United States, should not be a single and special repeal in relation to the United States, but should be extended to whatever other neutral nations, unconnected with them, may be affected by those decrees. And, as an additional insult, they are called on for a formal disavowal of conditions and pretensions advanced by the French Government, for which the United States are so far from having made themselves responsible, that, in official explanations which have been published to the world, and in a correspondence of the American Minister at London with the British Minister for Foreign Affairs, such a responsibility was explicitly and emphatically disclaimed. It has become, indeed, sufficiently certain, that the commerce of the United States is to be sacrificed, not as interfering with the belligerent rights of Great Britain; not as supplying the wants of her enemies, which she herself supplies; but as interfering with the money which she covets for her own commerce and navigation. She carries on a war against the lawful commerce of a friend, that she may the better carry on a commerce with an enemy; a commerce polluted by the forgeries and perjuries which are, for the most part, the only passports by which it can succeed. Anxious to make every experiment short of the last resort of injured nations, the United States have withheld from Great Britain, under successive modifications, the benefits of a free intercourse with their market, the loss of which could not but outweigh the profits accruing from her restrictions of our commerce with other nations. And to entitle these experiments to the more favorable consideration, they were so framed as to enable her to place her adversary under the exclusive operation of them. To these appeals her Government has been equally inflexible, as if willing to make sacrifices of every sort, rather than yield to the claims of justice, or renounce the errors of a false pride. Nay, so far were the attempts carried to overcome the attachments of the British Cabinet to its unjust edicts, that it received every encouragement within the competence of the Executive branch of our Government, to expect that a repeal of them would be followed by a war between the United States and France, unless the French edicts should also be recalled. Even this communication, although silencing forever the plea of a disposition in the United States to acquiesce in those edicts, originally the sole plea for them, received no attention. If no other proof existed of a predetermination of the British Government against a repeal of its orders, it might be found in the correspondence of the Minister Plenipotentiary of the United States at London, and the British Secretary for Foreign Affairs, in one thousand eight hundred and ten, on the question whether the blockade of May, one thousand eight hundred and six, was considered as in force, or as not in force. It had been ascertained that the French Government, which urged this blockade as the ground of its Berlin decree, was willing, in the event of its removal, to repeal that decree; which, being followed by alternate repeals of the other offensive edicts, might abolish the whole system on both sides. This inviting opportunity for accomplishing an object so important to the United States, and professed, so often, to be the desire of both the belligerents, was made known to the British Government. As that Government admits that an application of an adequate force is necessary to the existence of a legal blockade, and it was notorious that, if such a force had ever been applied, its long discontinuance had annulled the blockade in question, there could be no sufficient objection on the part of Great Britain to a formal revocation of it; and no imaginable objection to a declaration of the fact that the blockade did not exist. The declaration would have been consistent with her avowed principles of blockade; and would have enabled the United States to demand from France the pledged repeal of her decrees; either with success, in which case the way would have been opened for a general repeal of the belligerent edicts; or without success, in which case the United States would have been justified in turning their measures exclusively against France. The British Government would, however, neither rescind the blockade, nor declare its non-existence; nor permit its non-existence to be inferred and affirmed by the American Plenipotentiary. On the contrary, by representing the blockade to be comprehended in the Orders in Council, the United States were compelled so to regard it, in their subsequent proceedings. There was a period when a favorable change in the policy of the British Cabinet was justly considered as established. The Minister Plenipotentiary of His Britannic Majesty here, proposed an adjustment of the differences more immediately endangering the harmony of the two countries. The proposition was accepted with the promptitude and cordiality corresponding with the invariable professions of this Government. A foundation appeared to be laid for a sincere and lasting reconciliation. The prospect, however, quickly vanished. The whole proceeding was disavowed by the British Government, without any explanations, which could, at that time, repress the belief, that the disavowal proceeded from a spirit of hostility to the commercial rights and prosperity of the United States. And it has since come into proof, that at the very moment when the public Minister was holding the language of friendship, and inspiring confidence in the sincerity of the negotiation with which he was charged, a secret agent of his Government was employed in intrigues, having for their object a subversion of our Government, and a dismemberment of our happy Union. In reviewing the conduct of Great Britain towards the United States, our attention is necessarily drawn to the warfare, just renewed by the savages, on one of our extensive frontiers; a warfare which is known to spare neither age nor sex, and to be distinguished by features peculiarly shocking to humanity. It is difficult to account for the activity and combinations which have for some time been developing themselves among tribes in constant intercourse with British traders and garrisons, without connecting hostility with that influence, and without recollecting the authenticated examples of such interpositions, heretofore furnished by the officers and agents of that Government. Such is the spectacle of injuries and indignities which have been heaped on our country; and such the crisis which its unexampled forbearance and conciliatory efforts have not been able to avert. It might at least have been expected, that an enlightened nation, if less urged by moral obligations, or invited by friendly dispositions on the part of the United States, would have found, in its true interest alone, a sufficient motive to respect their rights and their tranquillity on the high seas; that an enlarged policy would have favored that free and general circulation of commerce in which the British nation is at all times interested, and which, in times of war, is the best alleviation of its calamities to herself, as well as to other belligerents; and, more especially, that the British Cabinet would not, for the sake of a precarious and surreptitious intercourse with hostile markets, have persevered in a course of measures which necessarily put at hazard the invaluable market of a great and growing country, disposed to cultivate the mutual advantages of an active commerce. Other councils have prevailed. Our moderation and conciliation have had no other effect than to encourage perseverance and to enlarge pretensions. We behold our seafaring citizens still the daily victims of lawless violence, committed on the great common and highway of nations, even within sight of the country which owes them protection. We behold our vessels, freighted with the products of our soil and industry, or returning with the honest proceeds of them, wrested from their lawful destinations, confiscated by prize courts, no longer the organs of public law, but the instruments of arbitrary edicts, and their unfortunate crews dispersed and lost, or forced, or inveigled in British ports into British fleets, whilst arguments are employed in support of these aggressions, which have no foundation but in a principle equally supporting a claim to regulate our external commerce in all cases whatsoever. We behold, in fine, on the side of Great Britain, a state of war against the United States; and on the side of the United States, a state of peace towards Great Britain. Whether the United States shall continue passive under these progressive usurpations, and their accumulating wrongs, or, opposing force to force in defence of their national rights, shall commit a just cause into the hands of the Almighty Disposer of events, avoiding all connections which might entangle it in the contest or views of other powers, and preserving a constant readiness to concur in an honorable re-establishment of peace and friendship, is a solemn question, which the constitution wisely confides to the Legislative Department of the Government. In recommending it to their early deliberation, I am happy in the assurance, that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation. Having presented this view of the relations of the United States with Great Britain, and of the solemn alternative growing out of them, I proceed to remark, that the communications last made to Congress on the subject of our relations with France, will have shown, that since the revocation of her decrees, as they violated the neutral rights of the United States, her Government has authorized illegal captures by its privateers and public ships; and that other outrages have been practised on our vessels and our citizens. It will have been seen, also, that no indemnity had been provided, or satisfactorily pledged, for the extensive spoliations committed under the violent and retrospective orders of the French Government against the property of our citizens, seized within the jurisdiction of France. I abstain, at this time, from recommending to the consideration of Congress definitive measures with respect to that nation, in the expectation that the result of unclosed discussions between our Minister Plenipotentiary at Paris and the French Government will speedily enable Congress to decide, with greater advantage, on the course due to the rights, the interests, and the honor, of our country. JAMES MADISON. WASHINGTON, _June 1, 1812_. A motion was then made by Mr. RANDOLPH, that the said message be referred to the Committee of the whole House on the state of the Union: And the question thereon being taken, it was determined in the negative--yeas 37, nays 85. On motion of Mr. D. R. WILLIAMS, the Message was referred to a committee appointed on that part of the President's Message which relates to our foreign relations. TUESDAY, June 2. The House met, and adjourned till to-morrow. WEDNESDAY, June 3. _Report on Foreign Relations._ Mr. CALHOUN, from the Committee on Foreign Relations, to whom was referred the Message of the President of the United States of the first instant, made a report, stating at large the causes and reasons of a war with Great Britain, which was read as follows: "That, after the experience which the United States have had of the great injustice of the British Government towards them, exemplified by so many acts of violence and oppression, it will be more difficult to justify to the impartial world their impatient forbearance, than the measures to which it has become necessary to resort, to avenge the wrongs, and vindicate the rights and honor of the nation. Your committee are happy to observe, on a dispassionate view of the conduct of the United States, that they see in it no cause for censure. "If a long forbearance under injuries ought ever to be considered a virtue in any nation, it is one which peculiarly becomes the United States. No people ever had stronger motives to cherish peace; none have ever cherished it with greater sincerity and zeal. "But the period has now arrived, when the United States must support their character and station among the nations of the earth, or submit to the most shameful degradation. Forbearance has ceased to be a virtue. War on the one side, and peace on the other, is a situation as ruinous as it is disgraceful. The mad ambition, the lust of power, and commercial avarice of Great Britain, arrogating to herself the complete dominion of the ocean, and exercising over it an unbounded and lawless tyranny, have left to neutral nations an alternative only between the base surrender of their rights, and a manly vindication of them. Happily for the United States, their destiny, under the aid of Heaven, is in their own hands. The crisis is formidable only by their love of peace. As soon as it becomes a duty to relinquish that situation, danger disappears. They have suffered no wrongs, they have received no insults, however great, for which they cannot obtain redress. "More than seven years have elapsed since the commencement of this system of hostile aggression by the British Government, on the rights and interests of the United States. The manner of its commencement was not less hostile than the spirit with which it has been prosecuted. The United States have invariably done every thing in their power to preserve the relations of friendship with Great Britain. Of this disposition they gave a distinguished proof at the moment when they were made the victims of an opposite policy. The wrongs of the last war had not been forgotten at the commencement of the present one. They warned us of dangers, against which it was sought to provide. As early as the year 1804, the Minister of the United States at London was instructed to invite the British Government to enter into a negotiation on all the points on which a collision might arise between the two countries, in the course of the war, and to propose to it an arrangement of their claims on fair and reasonable conditions. The invitation was accepted. A negotiation had commenced, and was depending, and nothing had occurred to excite a doubt that it would not terminate to the satisfaction of both the parties. It was at this time, and under these circumstances, that an attack was made by surprise, on an important branch of the American commerce, which affected every part of the United States, and involved many of their citizens in ruin. "The commerce on which this attack was so unexpectedly made, was that between the United States and the colonies of France, Spain, and other enemies of Great Britain. A commerce just in itself; sanctioned by the example of Great Britain, in regard to the trade with her own colonies; sanctioned by a solemn act between the two Governments in the last war; and sanctioned by the practice of the British Government in the present war: more than two years having then elapsed, without any interference with it. "The injustice of this attack could only be equalled by the absurdity of the pretext alleged for it. It was pretended by the British Government that, in case of war, her enemy had no right to modify its colonial regulations, so as to mitigate the calamities of war to the inhabitants of its colonies. This pretension, peculiar to Great Britain, is utterly incompatible with the rights of sovereignty in every independent State. If we recur to the well-established, and universally admitted law of nations, we shall find no sanction to it in that venerable code. The sovereignty of every State is co-extensive with its dominions, and cannot be abrogated, or curtailed in its rights, as to any part, except by conquest. Neutral nations have a right to trade to every port of either belligerents, which is not legally blockaded, and in all articles which are not contraband of war. Such is the absurdity of this pretension, that your committee are aware, especially after the able manner in which it has been heretofore refuted and exposed, that they would offer an insult to the understanding of the House, if they enlarged on it; and if any thing could add to the high sense of injustice of the British Government in this transaction, it would be the contrast which her conduct exhibits in regard to this trade, and in regard to a similar trade by neutrals, with her own colonies. It is known to the world, that Great Britain regulates her own trade, in war and in peace, at home and in her colonies, as she finds for her interest; that in war she relaxes the restraints of her colonial system in favor of the colonies, and that it never was suggested that she had not a right to do it, or that a neutral, in taking advantage of the relaxation, violated a belligerent right of her enemy. But with Great Britain every thing is lawful. It is only in trade with her enemies, that the United States can do wrong: with them, all trade is unlawful. "In the year 1793, an attack was made by the British Government on the same branch of our neutral trade, which had nearly involved the two countries in war. That difference, however, was amicably accommodated. The pretension was withdrawn, and reparation made to the United States for the losses which they had suffered by it. It was fair to infer from that arrangement, that the commerce was deemed by the British Government lawful, and that it would not be again disturbed. "Had the British Government been resolved to contest this trade with neutrals, it was due to the character of the British nation, that the decision should be known to the Government of the United States. The existence of a negotiation which had been invited by our Government, for the purpose of preventing differences, by an amicable arrangement of their respective pretensions, gave a strong claim for the notification, while it afforded the fairest opportunity for it. But, a very different policy animated the then Cabinet of England. Generous sentiments were unknown to it. The liberal confidence and friendly overtures of the United States were taken advantage of to ensnare them. Steady to its purpose, and inflexibly hostile to this country, the British Government calmly looked forward to that moment when it might give the most deadly wound to our interest. A trade, just in itself, which was secured by so many strong and sacred pledges, was considered safe. Our citizens, with their usual industry and enterprise, had embarked in it a vast proportion of their shipping and of their capital, which were at sea under no other protection than the law of nations, and the confidence which they reposed in the justice and friendship of the British nation. At this period, the unexpected blow was given. Many of our vessels were seized, carried into port, and condemned by a tribunal, which, while it professes to respect the law of nations, obeys the mandate of its own Government in opposition to all law. Hundreds of other vessels were driven from the ocean, and the trade itself in a great measure suppressed. "The effect produced by this attack on the lawful commerce of the United States, was as might have been expected from a virtuous, independent, and highly-injured people. But one sentiment pervaded the whole American nation. No local interests were regarded, no sordid motives felt. Without looking to the parts which suffered most, the invasion of our rights was considered a common cause, and from one extremity of our Union to the other, was heard the voice of a united people, calling on their Government to avenge their wrongs, and vindicate the rights and honor of the country. "From this period, the British Government has gone on in a continued encroachment on the rights and interests of the United States, disregarding in its course, in many instances, obligations which have heretofore been held sacred by civilized nations. "In May, 1806, the whole coast of the continent, from the Elbe to Brest, inclusive, was declared to be in a state of blockade. By this act, the well-established principles of the law of nations, principles which have served for ages as guides, and fixed the boundary between the rights of belligerents and neutrals, were violated. By the law of nations, as recognized by Great Britain herself, no blockade is lawful, unless it be sustained by the application of an adequate force; and that an adequate force was applied to this blockade, in its full extent, ought not to be pretended. Whether Great Britain was able to maintain legally so extensive a blockade, considering the war in which she is engaged, requiring such extensive naval operations, is a question which is not necessary at this time to examine. It is sufficient to be known, that such force was not applied, and this is evident, from the terms of the blockade itself, by which, comparatively, an inconsiderable portion of the coast only was declared to be in a state of strict and rigorous blockade. The objection to the measure is not diminished by that circumstance. If the force was not applied, the blockade was unlawful, from whatever cause the failure might proceed. The belligerent who institutes the blockade, cannot absolve itself from the obligation to apply the force, under any pretext whatever. For a belligerent to relax a blockade which it could not maintain, with a view to absolve itself from the obligation to maintain it, would be a refinement in injustice, not less insulting to the understanding, than repugnant to the law of nations. To claim merit for the mitigation of evil which the party either had not the power, or found it inconvenient to inflict, would be a new mode of encroaching on neutral rights. Your committee think it just to remark, that this act of the British Government does not appear to have been adopted in the sense in which it has been since construed. On consideration of all the circumstances attending the measure, and particularly the character of the distinguished statesman who announced it, we are persuaded that it was conceived in a spirit of conciliation, and intended to lead to an accomodation of all differences between the United States and Great Britain. His death disappointed that hope, and the act has since become subservient to other purposes. It has been made, by his successors, a pretext for that vast system of usurpation, which has so long oppressed and harassed our commerce. "The next act of the British Government which claims our attention, is the Order of Council of January 7, 1807, by which neutral powers are prohibited trading from one port to another of France, or her allies, or any other country with which Great Britain might not freely trade. By this order, the pretensions of England, heretofore disclaimed by every other power, to prohibit neutrals disposing of parts of their cargoes at different ports of the same enemy, is revived, and with vast accumulation of injury. Every enemy, however great the number, or distant from each other, is considered one, and the like trade, even with powers at peace with England, who, from motives of policy, had excluded or restrained her commerce was also prohibited. In this act, the British Government evidently disclaimed all regard for neutral rights. Aware that the measures authorized by it could find no pretext in any belligerent right, none was urged. To prohibit the sale of our produce, consisting of innocent articles, in any port of a belligerent, not blockaded; to consider every belligerent as one, and subject neutrals to the same restraints with all as if there was but one, were bold encroachments. But to restrain, or in any manner interfere with our commerce with neutral nations, with whom Great Britain was at peace, and against whom she had no justifiable cause of war, for the sole reason that they restrained or excluded from their ports her commerce, was utterly incompatible with the pacific relations subsisting between the two countries. "We proceed to bring into view the British Order in Council of November 11, 1807, which superseded every other order, and consummated that system of hostility on the commerce of the United States, which has been since so steadily pursued. By this order all France and her allies, and every other country at war with Great Britain, or with which she was not at war, from which the British flag was excluded, and all the colonies of her enemies, were subject to the same restrictions as if they were actually blockaded in the most strict and rigorous manner; and all trade in articles, the produce and manufacture of the said countries and colonies, and the vessels engaged in it, were subjected to capture and condemnation as lawful prize. To this order certain exceptions were made, which we forbear to notice, because they were not adopted from a regard to neutral rights, but were dictated by policy, to promote the commerce of England, and so far as they related to neutral powers, were said to emanate from the clemency of the British Government. "It would be superfluous in your committee to state, that, by this order, the British Government declared direct and positive war against the United States. The dominion of the ocean was completely usurped by it, all commerce forbidden, and every flag driven from it, or subjected to capture and condemnation, which did not subserve the policy of the British Government, by paying it a tribute, and sailing under its sanction. From this period, the United States have incurred the heaviest losses, and most mortifying humiliations. They have borne the calamities of war without retorting them on its authors. "So far your committee has presented to the view of the House the aggressions which have been committed, under the authority of the British Government, on the commerce of the United States. We will now proceed to other wrongs, which have been still more severely felt. Among these is the impressment of our seamen, a practice which has been unceasingly maintained by Great Britain in the wars to which she has been a party since our Revolution. Your committee cannot convey in adequate terms the deep sense which they entertain of the injustice and oppression of this proceeding. Under the pretext of impressing British seaman, our fellow-citizens are seized in British ports, on the high seas, and in every other quarter to which the British power extends; are taken on board British men-of-war, and compelled to serve there as British subjects. In this mode our citizens are wantonly snatched from their country and their families; deprived of their liberty, and doomed to an ignominious and slavish bondage; compelled to fight the battles of a foreign country, and often to perish in them. Our flag has given them no protection; it has been unceasingly violated, and our vessels exposed to dangers by the loss of the men taken from them. Your committee need not remark that, while this practice is continued, it is impossible for the United States to consider themselves an independent nation. Every new case is a new proof of their degradation. Its continuance is the more unjustifiable, because the United States have repeatedly proposed to the British Government an arrangement which would secure to it the control of its own people. An exemption of the citizens of the United States from this degrading oppression, and their flag from violation, is all that they have sought. "This lawless waste of our trade, and equally unlawful imprisonment of our seamen, have been much aggravated by the insults and indignities attending them. Under the pretext of blockading the harbors of France and her allies, British squadrons have been stationed on our own coast, to watch and annoy our own trade. To give effect to the blockade of European ports, the ports and harbors of the United States have been blockaded. In executing these orders of the British Government, or in obeying the spirit which was known to animate it, the commanders of these squadrons have encroached on our jurisdiction, seized our vessels, and carried into effect impressments within our limits, and done other acts of great injustice, violence, and oppression. The United States have seen, with mingled indignation and surprise, that these acts, instead of procuring to the perpetrators the punishment due to unauthorized crimes, have not failed to recommend them to the favor of their Government. "Whether the British Government has contributed by active measures to excite against us the hostility of the savage tribes on our frontiers, your committee are not disposed to occupy much time in investigating. Certain indications of general notoriety may supply the place of authentic documents, though these have not been wanting to establish the fact in some instances. It is known that symptoms of British hostility towards the United States have never failed to produce corresponding symptoms among those tribes. It is also well known that, on all such occasions, abundant supplies of the ordinary munitions of war have been afforded by the agents of British commercial companies, and even from British garrisons, wherewith they were enabled to commence that system of savage warfare on our frontiers, which has been at all times indiscriminate in its effect, on all ages, sexes, and conditions, and so revolting to humanity. "Your committee would be much gratified if they could close here the detail of British wrongs; but it is their duty to recite another act of still greater malignity than any of those which have been already brought to your view. The attempt to dismember our Union, and overthrow our excellent constitution, by a secret mission, the object of which was to foment discontents and excite insurrection against the constituted authorities and laws of the nation, as lately disclosed by the agent employed in it, affords full proof that there is no bound to the hostility of the British Government towards the United States; no act, however unjustifiable, which it would not commit to accomplish their ruin. This attempt excites the greater horror, from the consideration that it was made while the United States and Great Britain were at peace, and an amicable negotiation was depending between them for the accommodation of their differences, through public Ministers, regularly authorized for the purpose. "The United States have beheld, with unexampled forbearance, this continued series of hostile encroachments on their rights and interests, in the hope that, yielding to the force of friendly remonstrances, often repeated, the British Government might adopt a more just policy towards them; but that hope no longer exists. They have, also, weighed impartially the reasons which have been urged by the British Government in vindication of those encroachments, and found in them neither justification nor apology. "The British Government has alleged, in vindication of the Orders in Council, that they were resorted to as a retaliation on France for similar aggressions committed by her on our neutral trade with the British dominions. But how has this plea been supported? The dates of British and French aggressions are well known to the world. Their origin and progress have been marked with too wide and destructive a waste of the property of our fellow-citizens to have been forgotten. The decree of Berlin, of November 21st, 1806, was the first aggression of France in the present war. Eighteen months had then elapsed after the attack made by Great Britain on our neutral trade with the colonies of France and her allies, and six months from the date of the proclamation of May, 1806. Even on the 7th of January, 1807, the date of the first British Order in Council, so short a term had elapsed after the Berlin decree, that it was hardly possible that the intelligence of it should have reached the United States. A retaliation which is to produce its effect, by operating on a neutral power, ought not to be resorted to till the neutral had justified it by a culpable acquiescence in the unlawful act of the other belligerent. It ought to be delayed until after sufficient time had been allowed to the neutral to remonstrate against the measures complained of, to receive an answer, and to act on it, which had not been done in the present instance. And, when the order of November 11th was issued, it is well known that a Minister of France had declared to the Minister Plenipotentiary of the United States at Paris, that it was not intended that the decree of Berlin should apply to the United States. It is equally well known, that no American vessel had then been condemned under it, or seizure been made, with which the British Government was acquainted. The facts prove incontestably, that the measures of France, however unjustifiable in themselves, were nothing more than a pretext for those of England. And of the insufficiency of that pretext, ample proof has already been afforded by the British Government itself, and in the most impressive form. Although it was declared that the Orders in Council were retaliatory on France for her decrees, it was also declared, and in the orders themselves, that, owing to the superiority of the British navy, by which the fleets of France and her allies were confined within their own ports, the French decrees were considered only as empty threats. "It is no justification of the wrongs of one power, that the like were committed by another; nor ought the fact, if true, to have been urged by either, as it could afford no proof of its love of justice, of its magnanimity, or even of its courage. It is more worthy the Government of a great nation to relieve than to assail the injured. Nor can a repetition of the wrongs by another power repair the violated rights or wounded honor of the injured party. An utter inability alone to resist could justify a quiet surrender of our rights, and degrading submission to the will of others. To that condition the United States are not reduced, nor do they fear it. That they ever consented to discuss with either power the misconduct of the other, is a proof of their love of peace, of their moderation, and of the hope which they still indulged, that friendly appeals to just and generous sentiments would not be made to them in vain. But the motive was mistaken, if their forbearance was imputed either to the want of a just sensibility to their wrongs, or a determination, if suitable redress was not obtained, to resent them. The time has now arrived when this system of reasoning must cease. It would be insulting to repeat it. It would be degrading to hear it. The United States must act as an independent nation, and assert their rights, and avenge their wrongs, according to their own estimate of them, with the party who commits them, holding it responsible for its misdeeds, unmitigated by those of another. "For the difference made between Great Britain and France, by the application of the non-importation act against England only, the motive has been already too often explained, and is too well known to require further illustration. In the commercial restrictions to which the United States resorted as an evidence of their sensibility, and a mild retaliation of their wrongs, they invariably placed both powers on the same footing, holding out to each, in respect to itself, the same accommodation, in case it accepted the condition offered, and, in respect to the other, the same restraint if it refused. Had the British Government confirmed the arrangements which was entered into with the British Minister in 1809, and France maintained her decrees, with France would the United States have had to resist, with the firmness belonging to their character, the continued violation of their rights. The committee do not hesitate to declare, that France has greatly injured the United States, and that satisfactory reparation has not yet been made for many of those injuries. But that is a concern which the United States will look to and settle for themselves. The high character of the American people is a sufficient pledge to the world that they will not fail to settle it, on conditions which they have a right to claim. "More recently, the true policy of the British Government towards the United States, has been completely unfolded. It has been publicly declared by those in power, that the Orders in Council should not be repealed until the French Government had revoked all its internal restraints on the British commerce; and that the trade of the United States with France and her allies, should be prohibited, until Great Britain was also allowed to trade with them. By this declaration, it appears that, to satisfy the pretensions of the British Government, the United States must join Great Britain in the war with France, and prosecute the war until France should be subdued; for without her subjugation, it were in vain to presume on such a concession. The hostility of the British Government to these States has been still further disclosed. It has been made manifest that the United States are considered by it as the commercial rival of Great Britain, and that their prosperity and growth are incompatible with her welfare. When all these circumstances are taken into consideration, it is impossible for your committee to doubt the motives which have governed the British Ministry in all its measures towards the United States since the year 1805. Equally it is impossible to doubt, longer, the course which the United States ought to pursue towards Great Britain. "From this review of the multiplied wrongs of the British Government since the commencement of the present war, it must be evident to the impartial world, that the contest which is now forced on the United States, is radically a contest for their sovereignty and independence. Your committee will not enlarge on any of the injuries, however great, which have had a transitory effect. They wish to call the attention of the House to those of a permanent nature only, which intrench so deeply on our most important rights, and wound so extensively and vitally our best interests, as could not fail to deprive the United States of the principal advantages of their Revolution, if submitted to. The control of our commerce by Great Britain, in regulating, at pleasure, and expelling it almost from the ocean; the oppressive manner in which these regulations have been carried into effect, by seizing and confiscating such of our vessels, with their cargoes, as were said to have violated her edicts, often without previous warning of their danger; the impressment of our citizens from on board our own vessels on the high seas, and elsewhere, and holding them in bondage till it suited the convenience of their oppressors to deliver them up; are encroachments of that high and dangerous tendency, which could not fail to produce that pernicious effect; nor would these be the only consequences that would result from it. The British Government might, for a while, be satisfied with the ascendency thus gained over us, but its pretensions would soon increase. The proof which so complete and disgraceful a submission to its authority would afford of our degeneracy, could not fail to inspire confidence, that there was no limit to which its usurpations, and our degradation, might not be carried. "Your committee, believing that the free-born sons of America are worthy to enjoy the liberty which their fathers purchased at the price of so much blood and treasure, and seeing in the measures adopted by Great Britain, a course commenced and persisted in, which must lead to a loss of national character and independence, feel no hesitation in advising resistance by force; in which the Americans of the present day will prove to the enemy and to the world, that we have not only inherited that liberty which our fathers gave us, but also the will and power to maintain it. Relying on the patriotism of the nation, and confidently trusting that the Lord of Hosts will go with us to battle in the righteous cause, and crown our efforts with success, your committee recommend an immediate appeal to arms." On motion of Mr. MITCHELL, the doors were then closed, and the House sat with doors closed the remainder of the day's sitting. A motion was then made by Mr. RANDOLPH that the proceedings upon the said Message of the President be had and conducted with open doors; and the question thereon being taken, it was determined in the negative--yeas 45, nays 77. On motion of Mr. CALHOUN, the said report was ordered to lie on the table. _Declaration of War._ On a motion made, and leave given, Mr. CALHOUN, from the same committee, presented a bill declaring war between Great Britain and her dependencies and the United States and their territories; which was read the first time; and opposition being made thereto by Mr. RANDOLPH, the question was taken in the form prescribed by the rules and orders of the House, to wit: "Shall the bill be rejected?" And determined in the negative--yeas, 45, nays, 76. The bill was then read the second time, and committed to a Committee of the Whole to-day. The House resolved itself into a Committee of the whole House on the said bill; and, after some time spent therein, Mr. Speaker resumed the Chair, and Mr. BASSETT reported that the committee had had the said bill under consideration, and made some progress therein, and had directed him to ask leave to sit again. _Ordered_, That the Committee of the whole House have leave to sit again on the said bill. And then the House adjourned until to-morrow morning eleven o'clock. THURSDAY, June 4. A motion was made by Mr. MILNOR that the doors of the House be now opened; and was determined in the negative. The House then resolved itself into a Committee of the whole House on the bill declaring War between Great Britain and her Dependencies and the United States and their Territories; and after some time spent therein, the Speaker resumed the chair, and Mr. BASSETT reported that the committee had had the said bill under consideration, and made no amendment thereto. A motion was then made by Mr. QUINCY to amend the said bill, by adding thereto a new section, as follows: "SEC. ----. _And be it further enacted_, That, from and after the passage of this act, the act, entitled 'An act concerning the commercial intercourse between the United States and Great Britain and France and their dependencies, and for other purposes,' passed the first day of May, one thousand eight hundred and ten; and, also, the act, entitled 'An act supplementary to the act, entitled "An act concerning the commercial intercourse between the United States and Great Britain and France and their dependencies, and for other purposes,"' passed the second day of March, one thousand eight hundred and eleven; and, also, the act, entitled 'An act laying an embargo on all ships and vessels in the ports and harbors of the United States for a limited time,' passed the fourth day of April, one thousand eight hundred and twelve, be, and the same hereby are, repealed." A motion was thereupon made by Mr. NELSON, that the bill and the proposed amendment be recommitted to a Committee of the whole House: And the question thereon being taken, it was determined in the negative. The question was then taken on the amendment proposed by Mr. QUINCY; and determined in the negative--yeas 42, nays 82. No other amendment being proposed to the said bill, the question was taken that it be engrossed, and read the third time; and passed in the affirmative--yeas 78, nays 45, as follows: YEAS.--Willis Alston, jr., William Anderson, Stevenson Archer, David Bard, Burwell Bassett, William W. Bibb, William Blackledge, Robert Brown, William A. Burwell, William Butler, John C. Calhoun, Francis Carr, Langdon Cheves, James Cochran, John Clopton, Lewis Condict, William Crawford, Roger Davis, John Dawson, Joseph Desha, Samuel Dinsmoor, Elias Earle, William Findlay, James Fisk, Thomas Gholson, Peterson Goodwyn, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, Aylett Hawes, John M. Hyneman, Richard M. Johnson, Joseph Kent, William R. King, Abner Lacock, Joseph Lefevre, Peter Little, Wm. Lowndes, Aaron Lyle, Nathaniel Macon, Thomas Moore, William McCoy, Samuel McKee, Alexander McKim, Samuel L. Mitchill, James Morgan, Jeremiah Morrow, Hugh Nelson, Anthony New, Thomas Newton, Stephen Ormsby, Israel Pickens, William Piper, James Pleasants, jr., Benjamin Pond, William M. Richardson, Samuel Ringgold, John Rhea, John Roane, Jonathan Roberts, Ebenezer Sage, Ebenezer Seaver, John Sevier, Adam Seybert, Samuel Shaw, George Smith, John Smith, William Strong, John Taliaferro, George M. Troup, Charles Turner, jr., Robert Whitehill, David R. Williams, William Widgery, Robert Wright, and Richard Wynn,. NAYS.--John Baker, Josiah Bartlett, Harmanus Bleecker, Adam Boyd, James Breckenridge, Elijah Brigham, Epaphroditus Champion, Martin Chittenden, Thomas B. Cooke, John Davenport, jr., William Ely, James Emott, Asa Fitch, Thomas R. Gold, Charles Goldsborough, Jacob Hufty, Richard Jackson, jr., Philip B. Key, Lyman Law, Joseph Lewis, jr., George C. Maxwell, Archibald McBryde, Arunah Metcalf, James Milnor, Jonathan O. Mosely, Thomas Newton, Joseph Pearson, Timothy Pitkin, jr., Elisha R. Potter, Josiah Quincy, John Randolph, William Reed, Henry Ridgely, William Rodman, Richard Stanford, Philip Stuart, Lewis B. Sturges, George Sullivan, Samuel Taggart, Benjamin Tallmadge, Uri Tracy, Pierre Van Cortlandt, jr., Laban Wheaton, Leonard White, and Thomas Wilson. _Ordered_, That the said bill be read the third time to-day. The said bill was engrossed, and read the third time accordingly, and the question stated that the same do pass: Whereupon, a motion was made by Mr. RANDOLPH, that the farther consideration of the said bill be postponed until the first Monday in October next; and the question thereon being taken, it was determined in the negative--yeas 42, nays 81. A motion was then made by Mr. STOW, that the farther consideration of the said bill be postponed until to-morrow; and the question thereon being taken, it was determined in the negative--yeas 48, nays 78. A motion was then made by Mr. GOLDSBOROUGH, that the House do now adjourn; and the question thereon being taken, it was determined in the negative--yeas 43, nays 82. The question was then taken, that the said bill do pass; and resolved in the affirmative--yeas 79, nays 49, as follows: YEAS.--Willis Alston, jr., William Anderson, Stevenson Archer, Daniel Avery, David Bard, Burwell Bassett, William W. Bibb, William Blackledge, Robert Brown, William A. Burwell, William Butler, John C. Calhoun, Francis Carr, Langdon Cheves, James Cochran, John Clopton, Lewis Condict, William Crawford, Roger Davis, John Dawson, Joseph Desha, Samuel Dinsmoor, Elias Earle, William Findlay, James Fisk, Thomas Gholson, Peterson Goodwyn, Isaiah L. Green, Felix Grundy, Boiling Hall, Obed Hall, John A. Harper, Aylett Hawes, John M. Hyneman, Richard M. Johnson, Joseph Kent, William R. King, Abner Lacock, Joseph Lefevre, Peter Little, William Lowndes, Aaron Lyle, Nathaniel Macon, Thomas Moore, William McCoy, Samuel McKee, Alexander McKim, James Morgan, Jeremiah Morrow, Hugh Nelson, Anthony New, Thomas Newton, Stephen Ormsby, Israel Pickens, William Piper, James Pleasants, jr., Benjamin Pond, William M. Richardson, Samuel Ringgold, John Rhea, John Roane, Jonathan Roberts, Ebenezer Sage, Ebenezer Seaver, John Sevier, Adam Seybert, Samuel Shaw, John Smilie, George Smith, John Smith, William Strong, John Taliaferro, George M. Troup, Charles Turner, jr., Robert Whitehill, David R. Williams, William Widgery, Robert Wright, and Richard Wynn. NAYS.--John Baker, Josiah Bartlett, Harmanus Bleecker, Adam Boyd, James Breckenridge, Elijah Brigham, Epaphroditus Champion, Martin Chittenden, Thomas B. Cooke, John Davenport, jr., William Ely, James Emott, Asa Fitch, Thomas R. Gold, Chas. Goldsborough, Jacob Hufty, Richard Jackson, jr., Philip B. Key, Lyman Law, Joseph Lewis, jr., George C. Maxwell, Archibald McBryde, Arunah Metcalf, James Milnor, Samuel L. Mitchill, Jonathan O. Mosely, Thomas Newbold, Joseph Pearson, Timothy Pitkin, jr., Elisha R. Potter, Josiah Quincy, John Randolph, William Reed, Henry M. Ridgely, William Rodman, Thomas Sammons, Richard Stanford, Philip Stuart, Silas Stow, Lewis B. Sturges, George Sullivan, Samuel Taggart, Benjamin Tallmadge, Peleg Tallman, Uri Tracy, Pierre Van Cortlandt, jr., Laban Wheaton, Leonard White, and Thomas Wilson. _Ordered_, That the title be, "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories." Mr. MACON and Mr. FINDLAY were appointed a committee to carry the bill entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories," to the Senate, and to inform them that the House of Representatives have passed the same, in confidence, and to request their concurrence therein. THURSDAY, June 18. _Bill Declaring War._ A confidential message was received from the Senate, by a committee of that body appointed for the purpose, consisting of Mr. ANDERSON and Mr. VARNUM, notifying the House that the Senate have passed the bill, entitled "An act declaring War between Great Britain and her Dependencies, and the United States and their Territories," with amendments; in which they desire the concurrence of the House. The House proceeded to consider the said amendments; when a motion was made by Mr. SHEFFEY, that the said bill and amendments be postponed indefinitely. A motion was then made by Mr. MILNOR, that the said bill and amendments do lie on the table; and the question thereon being taken, it passed in the affirmative--yeas 71, nays 46. The House resumed the consideration of the amendments of the Senate to the aforesaid bill; when the question recurred on the motion of Mr. SHEFFEY, and, being taken, it was determined in the negative--yeas 44, nays 85, as follows: YEAS.--John Baker, Abijah Bigelow, Harmanus Bleecker, James Breckenridge, Elijah Brigham, Epaphroditus Champion, Martin Chittenden, Thomas B. Cooke, John Davenport, jr., William Ely, James Emott, Asa Fitch, Thomas R. Gold, Charles Goldsborough, Edwin Gray, Jacob Hufty, Richard Jackson, jr., Philip B. Key, Lyman Law, Joseph Lewis, jr., Archibald McBryde, James Milnor, Jonathan O. Mosely, Joseph Pearson, Timothy Pitkin, jr., Elisha R. Potter, Josiah Quincy, John Randolph, William Reed, Henry M. Ridgely, William Rodman, Daniel Sheffey, Richard Stanford, Philip Stuart, Silas Stow, Lewis B. Sturges, George Sullivan, Samuel Taggart, Benjamin Tallmadge, Uri Tracy, Pierre Van Cortlandt, jr., Laban Wheaton, Leonard White, and Thomas Wilson. NAYS.--Willis Alston, jr., William Anderson, Stevenson Archer, Daniel Avery, David Bard, Josiah Bartlett, Burwell Bassett, William W. Bibb, William Blackledge, Adam Boyd, Robert Brown, William A. Burwell, William Butler, John C. Calhoun, Francis Carr, Langdon Cheves, James Cochran, John Clopton, Lewis Condict, William Crawford, Richard Cutts, Roger Davis, John Dawson, Joseph Desha, Samuel Dinsmoor, Elias Earle, William Findlay, James Fisk, Meshack Franklin, Thomas Gholson, Peterson Goodwyn, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, Aylett Hawes, John M. Hyneman, Richard M. Johnson, Joseph Kent, William R. King, Abner Lacock, Joseph Lefevre, Peter Little, William Lowndes, Aaron Lyle, Nathaniel Macon, George C. Maxwell, Thomas Moore, William McCoy, Samuel McKee, Alexander McKim, Arunah Metcalf, James Morgan, Jeremiah Morrow, Hugh Nelson, Anthony New, Thomas Newton, Stephen Ormsby, Israel Pickens, William Piper, James Pleasants, jr., Benjamin Pond, William M. Richardson, Samuel Ringgold, John Rhea, John Roane, Nathaniel Roberts, Ebenezer Sage, Ebenezer Seaver, John Sevier, Adam Seybert, Samuel Shaw, John Smilie, George Smith, John Smith, Wm. Strong, John Taliaferro, George M. Troup, Charles Turner, jr., Robert Whitehill, David R. Williams, William Widgery, Robert Wright, and Richard Wynn. A motion was made by Mr. RANDOLPH, that the said bill and amendments be postponed until the first Monday in October next. And the question thereon being taken, it was determined in the negative--yeas 49, nays 80. A motion was then made by Mr. RANDOLPH, that the said bill and amendments be postponed until the first Monday in July next. And the question thereon being taken, it was determined in the negative--yeas 51, nays 79. The said amendments were then concurred in by the House. And Mr. MACON and Mr. FINDLAY were appointed a committee to inform the Senate of the concurrence of the House in the said amendments. Mr. CRAWFORD, from the Joint Committee for Enrolled Bills, reported that the committee had examined the said bill, and had found the same to be truly enrolled; when the Speaker signed the said bill, and the Committee of Enrollment were ordered to take it to the Senate, for the signature of their President. Shortly after, Mr. CRAWFORD, from the same committee, reported that the committee had presented the said bill to the President of the United States, for his approbation, and that they were instructed by the President to inform the two Houses that he had approved and signed the same. On motion of Mr. CALHOUN, the injunction of secrecy was removed from so much of the journals as relates to the President's Message of the 1st instant, with the proceedings thereon. And then the House adjourned until to-morrow morning, 11 o'clock. FRIDAY, June 19. _Occupation of Florida._ On motion of Mr. TROUP, _Resolved_, That the committee to whom was referred so much of the President's Message, at the commencement of the session, as relates to the Spanish American colonies, be instructed to inquire into the expediency of authorizing the President of the United States to occupy East and West Florida without delay. And then the doors were opened. MONDAY, June 22. On motion made, and leave given, Mr. MITCHILL, from the committee appointed on that part of the President's Message, at the commencement of the session, which relates to Spanish American colonies, presented a bill authorizing the President of the United States to take possession of a tract of country lying south of the Mississippi Territory, of the State Georgia, and for other purposes; which was read the first time. When a question was taken whether the subject matter of the said bill required secrecy; and passed in the affirmative--yeas 71, nays 44. The said bill was then read the second time, and committed to a Committee of the Whole to-morrow; and the doors were then opened. THURSDAY, June 25. The House resolved itself into a Committee of the Whole on the bill authorizing the President to take possession of a tract of country lying south of the Mississippi Territory, of the State of Georgia, and for other purposes; and, after some time spent therein, the Speaker resumed the chair, and Mr. LEWIS reported that the committee had had the said bill under consideration, and made an amendment thereto; which he delivered in at the Clerk's table, where it was again read, and concurred in by the House. The question was then taken that the said bill be engrossed, and read the third time; and passed in the affirmative--yeas 70, nays 48, as follows: YEAS.--William Anderson, Stevenson Archer, Burwell Bassett, William W. Bibb, William Blackledge, Robert Brown, William Butler, John C. Calhoun, Francis Carr, Matthew Clay, James Cochran, John Clopton, Lewis Condict, William Crawford, Richard Cutts, Roger Davis, John Dawson, Joseph Desha, Samuel Dinsmoor, William Findlay, James Fisk, Meshack Franklin, Thomas Gholson, Peterson Goodwyn, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, John M. Hyneman, Richard M. Johnson, Joseph Kent, William R. King, Abner Lacock, Peter Little, Aaron Lyle, Nathaniel Macon, George C. Maxwell, Thomas Moore, William McCoy, Alexander McKim, Samuel L. Mitchill, James Morgan, Jeremiah Morrow, Hugh Nelson, Anthony New, Thomas Newton, Stephen Ormsby, Israel Pickens, William Piper, Samuel Ringgold, John Rhea, John Roane, Jonathan Roberts, Ebenezer Sage, Ebenezer Seaver, John Sevier, Samuel Shaw, John Smilie, George Smith, John Smith, William Strong, John Taliaferro, George M. Troup, Charles Turner, jr., Robert Whitehill, David R. Williams, William Widgery, and Robert Wright. NAYS.--Ezekiel Bacon, John Baker, Abijah Bigelow, Harmanus Bleecker, James Breckenridge, Elijah Brigham, William A. Burwell, Epaphroditus Champpion, Langdon Cheves, Martin Chittenden, Thomas B. Cooke, John Davenport, jr., William Ely, James Emott, Asa Fitch, Thomas R. Gold, Charles Goldsborough, Edwin Gray, Aylett Hawes, Jacob Hufty, Richard Jackson, jr., Philip B. Key, Lyman Law, Joseph Lewis, jr., William Lowndes, Archibald McBryde, Jas. Milnor, Jonathan O. Mosely, Joseph Pearson, Timothy Pitkin jr., James Pleasants, jr., Elisha R. Potter, Josiah Quincy, John Randolph, William M. Richardson, Henry M. Ridgely, William Rodman, Thomas Sammons, Adam Seybert, Daniel Sheffey, Richard Stanford, Philip Stuart, Lewis B. Sturges, Samuel Taggart, Pierre Van Cortlandt, jr., Laban Wheaton, Leonard White, and Thomas Wilson. _Ordered_, That the said bill be read the third time to-day. The said bill was engrossed, and read the third time accordingly: When a motion was made by Mr. RIDGELY, that the same be postponed until Monday next; and the question being taken, it was determined in the negative. The question was then taken that the said bill do pass; and resolved in the affirmative. _Ordered_, That the title be, "An act authorizing the President to take possession of a tract of country lying south of the Mississippi Territory and of the State of Georgia, and for other purposes." Mr. MITCHILL and Mr. TROUP were appointed a committee to carry the said bill to the Senate, and inform them that this House have passed the same, in confidence, and request their concurrence therein; and the doors were then opened. FRIDAY, June 26. A motion was made by Mr. RANDOLPH, that the injunction of secrecy imposed by this House on the bill, entitled "An act authorizing the President to take possession of a tract of country lying south of the Mississippi Territory and of the State of Georgia, and for other purposes," together with the injunction of secrecy imposed upon the proceedings of the said bill, be taken off: and, on the question that the House do now proceed to the consideration of the said motion, it was determined in the negative. A motion was then made by Mr. RIDGELY, that the House do come to the following resolution: _Resolved_, That the President of the United States be requested, if, in his opinion, it be compatible with the public interest, to lay before this House, confidentially or otherwise, full information of all the proceedings that have been had under and by virtue of the act of Congress, entitled "An act to enable the President of the United States, under certain contingencies, to take possession of the country lying east of the river Perdido, and south of the State of Georgia and the Mississippi Territory, and for other purposes;" and also copies of all instructions that may have been issued by the Executive branch of this Government under the said act. And on the question that the House do now proceed to the consideration of the said resolution, it passed in the affirmative--yeas 78, nays 38. The question was then taken that the said resolution do pass; and resolved in the affirmative--yeas 58, nays 51. WEDNESDAY, July 1. Mr. RIDGELY, from the committee appointed, on the 26th ultimo, to present a resolution to the President of the United States, reported that the committee had performed that service, and that the President answered, that a due attention should be paid to the subject. _Occupation of Florida._ A Message was then received from the President of the United States, by Mr. Coles, his Secretary, who delivered in the same, and withdrew. The Message was read, and is as follows: _To the House of Representatives of the United States:_ In compliance with the resolution of the House of Representatives, of the twenty-sixth of June, I transmit the information contained in the documents herewith enclosed. JAMES MADISON. JULY 1, 1812. The said documents were read; and the doors were then opened. [The following letters, forming a part of the documents accompanying the above Message of the President of the United States, were ordered to be published by the House on the 6th instant.] _From the Secretary of State to General George Matthews and Colonel John McKee, dated_ DEPARTMENT OF STATE, _January 26, 1811_. The President of the United States having appointed you, jointly and severally, Commissioners for carrying into effect certain provisions of an act of Congress (a copy of which is enclosed) relative to the portion of the Floridas situated to the east of the Perdido, you will repair to that quarter with all possible expedition, concealing from general observation the trust committed to you, with that discretion with which the delicacy and importance of the undertaking require. Should you find Governor Folch, or the local authority existing there, inclined to surrender, in an amicable manner, the possession of the remaining portion or portions of West Florida now held by him in the name of the Spanish Monarchy, you are to accept, in behalf of the United States, the abdication of his, or of the other existing authority, and the jurisdiction of the country over which it extends. And, should a stipulation be insisted on for the redelivery of the country, at a future period, you may, engage for such redelivery to the lawful sovereign. The debts clearly due from the Spanish Government to the people of the Territory, surrendered, may, if insisted on, be assumed within reasonable limits, and under specified descriptions, to be settled hereafter as a claim against Spain in an adjustment of our affairs with her. You may also guarantee, in the name of the United States, the confirmation of all such titles to land as are clearly sanctioned by Spanish laws; and Spanish civil functionaries, where no special reasons may require changes, are to be permitted to remain in office, with the assurance of a continuation of the prevailing laws, with such alterations only as may be necessarily required in the new situation of the country. If it should be required, and be found necessary, you may agree to advance, as above, a reasonable sum for the transportation of the Spanish troops. These directions are adapted to one of the contingencies specified in the act of Congress, namely, the amicable surrender of the possession of the Territory by the local ruling authority. But, should the arrangement contemplated by the statute, not be made, and should there be room to entertain a suspicion of an existing design in any foreign power to occupy the country in question, you are to keep yourselves on the alert, and on the first undoubted manifestation of the approach of a force for that purpose, you will exercise with promptness and vigor, the powers with which you are invested by the President to preoccupy by force, the Territory, to the entire exclusion of any armament that may be advancing to take possession of it. In this event you will exercise a sound discretion in applying the powers given with respect to debts, titles to land, civil officers, and the continuation of the Spanish laws; taking care to commit the Government on no point further than may be necessary. And should any Spanish military force remain within the country, after the occupancy by the troops of the United States, you may, in such case, aid in their removal from the same. The universal toleration which the laws of the United States assure to every religious persuasion, will not escape you as an argument for quieting the minds of uninformed individuals, who may entertain fears on that head. The conduct you are to pursue in regard to East Florida, must be regulated by the dictates of your own judgments, on a close view and accurate knowledge of the precise state of things there, and of the real disposition of the Spanish Government, always recurring to the present instruction as the paramount rule of your proceedings. Should you discover an inclination in the Governor of East Florida, or in the existing local authority, amicably to surrender that province into the possession of the United States, you are to accept it on the same terms that are prescribed by these instructions in relation to West Florida. And, in case of the actual appearance of any attempt to take possession by a foreign power you will pursue the same effective measures for the occupation of the Territory, and for the exclusion of foreign force, as you are directed to pursue with respect to the country east of the Perdido, forming, at this time, the extent of Governor Folch's jurisdiction. If you should under these instructions, obtain possession of Mobile, you will lose no time in informing Governor Claiborne thereof, with a request that he will, without delay, take the necessary steps for the occupation of the same. All ordnance and military stores that may be found in the Territory must be held as the property of the Spanish Government, to be accounted for hereafter to the proper authority; and you will not fail to transmit an inventory thereof to this Department. If, in the execution of any part of these instructions, you should need the aid of a military force, the same will be afforded you upon your application to the commanding officer of the troops of the United States on that station, or to the commanding officer of the nearest post, in virtue of orders which have been issued from the War Department. And, in case you should moreover need naval assistance, you will receive the same upon your application to the naval commander, in pursuance of orders from the Navy Department. From the Treasury Department will be issued the necessary instructions in relation to imposts and duties, and to the slave ships whose arrival is apprehended. The President, relying upon your discretion, authorizes you to draw upon the Collectors of Orleans and Savannah for such sums as may be necessary to defraying unavoidable expenses that may be incurred in the execution of these instructions, not exceeding, in your drafts on New Orleans, eight thousand dollars, and in your drafts on Savannah two thousand dollars, without further authority; of which expenses you will hereafter exhibit a detailed account, duly supported by satisfactory vouchers. POSTSCRIPT.--If Governor Folch should unexpectedly require and pertinaciously insist that the stipulation for the redelivery of the territory should also include that portion of the country which is situated west of the river Perdido, you are, in yielding to such demand, only to use general words that may by implication comprehend that portion of the country; but, at the same time, you are expressly to provide, that such stipulation shall not, in any way, impair or affect the right or title of the United States to the same. _The Secretary of State to General Matthews._ DEPARTMENT OF STATE, _April_ 4, 1812. SIR,--I have had the honor to receive your letter of the fourteenth of March, and have now to communicate to you the sentiments of the President, on the very interesting subject to which it relates. I am sorry to have to state that the measures which you appear to have adopted for obtaining possession of Amelia Island, and other parts of East Florida, are not authorized by the law of the United States, or the instructions founded on it, under which you have acted. You were authorized by the law, a copy of which was communicated to you, and by your instructions, which are strictly conformable to it, to take possession of East Florida, only in case one of the following contingencies should happen: either that the Governor or other existing local authority should be disposed to place it amicably in the hands of the United States, or that an attempt should be made to take possession of it by a foreign power. Should the first contingency happen, it would follow, that the arrangement being amicable, would require no force on the part of the United States to carry into effect. It was only in case of an attempt to take it by a foreign power that force could be necessary, in which event only were you authorized to avail yourself of it. In either of these contingencies was it the policy of the law, or purpose of the Executive, to wrest the province forcibly from Spain; but only to occupy it with a view to prevent its falling into the hands of any foreign power, and to hold that pledge, under the existing peculiarity of the circumstances of the Spanish Monarchy, for a just result in an amicable negotiation with Spain. Had the United States been disposed to proceed otherwise, that intention would have been manifested by a change of the law, and suitable measures to carry it into effect. And as it was in their power to take possession whenever they might think that circumstances authorized and required it, it would be more to be regretted, if possession should be effected by any means irregular in themselves, and subjecting the Government of the United States to unmerited censure. The views of the Executive respecting East Florida, are further illustrated by your instructions as to West Florida. Although the United States have thought that they had a good title to the latter province, they did not take possession until after the Spanish authority had been subverted by a revolutionary proceeding, and the contingency of the country being thrown into foreign hands, had forced itself into view. Nor did they then, nor have they since, dispossessed the Spanish troops of the post which they occupied. If they did not think proper to take possession by force, of a province to which they thought they were justly entitled, it could not be presumed that they should intend to act differently, in respect to one to which they had not such a claim. I may add, that, although due sensibility has been always felt for the injuries which were received from the Spanish Government in the last war, the present situation of Spain has been a motive for a moderate and pacific policy towards her. In communicating to you these sentiments of the Executive on the measures you have lately adopted for taking possession of East Florida, I add, with pleasure, that the utmost confidence is reposed in your integrity and zeal to promote the welfare of your country. To that zeal the error into which you have fallen, is imputed. But, in consideration of the part which you have taken, which differs so essentially from that contemplated and authorized by the Government, and contradicts so entirely the principle on which it has uniformly and sincerely acted, you will be sensible of the necessity of discontinuing the service in which you have been employed. You will, therefore, consider your powers as revoked on the receipt of this letter. The new duties to be performed will be transferred to the Governor of Georgia, to whom instructions will be given on all the circumstances to which it may be proper, at the present juncture, to call his attention. I am, &c., GENERAL MATTHEWS, &c. _The Secretary of State to His Excellency D. B. Mitchell, the Governor of Georgia._ DEPARTMENT OF STATE, _April 10, 1812_. SIR,--The President is desirous of availing the public of your services, in a concern of much delicacy and of high importance to the United States. Circumstances with which you are in some degree acquainted, but which will be fully explained by the enclosed papers, have made it necessary to revoke the powers heretofore committed to General Matthews, and to commit them to you. The President is persuaded that you will not hesitate to undertake a trust so important to the nation, and peculiarly to the State of Georgia. He is the more confident in this belief, from the consideration that these new duties may be discharged without interfering, as he presumes, with those of the station which you now hold. By the act of the fifteenth of January, one thousand eight hundred and eleven, you will observe that it was not contemplated to take possession of East Florida, or any part thereof, unless it should be surrendered to the United States amicably by the Governor, or other local authority of the province, or against an attempt to take possession of it by a foreign power: and you will also see that General Matthews' instructions, of which a copy is likewise enclosed, correspond fully with the law. By the documents in possession of the Government, it appears that neither of these contingencies have happened; that, instead of an amicable surrender by the Governor, or other local authority, the troops of the United States have been used to dispossess the Spanish authority by force. I forbear to dwell on the details of this transaction, because it is painful to recite them. By the letter to General Matthews, which is enclosed, open for your perusal, you will fully comprehend the views of the Government respecting the late transaction; and, by the law, the former instructions to the General, and the late letter now forwarded, you will be made acquainted with the course of conduct which it is expected of you to pursue in future, in discharging the duties heretofore enjoined on him. It is the desire of the President that you should turn your attention and direct your efforts, in the first instance, to the restoration of that state of things in the province which existed before the late transactions. The Executive considers it proper to restore back to the Spanish authorities, Amelia Island, and such other parts, if any, of East Florida, as may have thus been taken from them. With this view, it will be necessary for you to communicate _directly_ with the Governor or principal officer of Spain in that province, and to act in harmony with him in the attainment of it. It is presumed that the arrangement will be easily and amicably made between you. I enclose you an order from the Secretary of War to the commander of the troops of the United States to evacuate the country, when requested so to do by you, and to pay the same respect in future to your order in fulfilling the duties enjoined by the law, that he had been instructed to do to that of General Matthews. In restoring to the Spanish authorities Amelia Island, and such other parts of East Florida as may have been taken possession of in the name of the United States, there is another object to which your particular attention will be due. In the measures lately adopted by General Matthews to take possession of that territory, it is probable that much reliance has been placed, by the people who acted in it, on the countenance and support of the United States. It will be improper to expose these people to the resentment of the Spanish authorities. It is not to be presumed that those authorities, in regaining possession of the Territory, in this amicable mode, from the United States, will be disposed to indulge any such feeling towards them. You will, however, come to a full understanding with the Spanish Governor on this subject, and not fail to obtain from him the most explicit and satisfactory assurance respecting it. Of this assurance you will duly apprise the parties interested, and of the confidence which you repose in it. It is hoped, that, on this delicate and very interesting point, the Spanish Governor will avail himself of the opportunity it presents to evince the friendly disposition of his Government toward the United States. There is one other remaining circumstance only to which I wish to call your attention, and that relates to General Matthews himself. His gallant and meritorious services in our Revolution, and patriotic conduct since, have always been held in high estimation by the Government. His errors, in this instance, are imputed altogether to his zeal to promote the welfare of his country; but they are of a nature to impose on the Government the necessity of the measures now taken, in giving effect to which you will doubtless feel a disposition to consult, as far as may be, his personal sensibility. I have the honor to be, &c., JAMES MONROE. P. S.--Should you find it impracticable to execute the duties designated above, in person, the President requests that you will be so good as to employ some very respectable character to represent you in it, to whom you are authorized to allow a similar compensation. It is hoped, however, that you may be able to attend to it in person, for reasons which I need not enter into. The expenses to which you may be exposed will be promptly paid to your draft on this Department. _The Secretary of State to D. B. Mitchell, Esq., Governor of Georgia._ DEPARTMENT OF STATE, _May_ 27, 1812. SIR,--I have had the honor to receive your letter of the second instant, from St. Mary's, where you had arrived in discharge of the trust reposed in you by the President, in relation to East Florida. My letter by Mr. Isaacs, has, I presume, substantially answered the most important of the queries submitted in your letter, but I will give to each a more distinct answer. By the law, of which a copy was forwarded to you, it is made the duty of the President to prevent the occupation of East Florida by any foreign power. It follows that you are authorized to consider the entrance, or attempt to enter, especially under existing circumstances, of British troops, of any description, as the case contemplated by the law, and to use the proper means to defeat it. An instruction will be immediately forwarded to the commander of the naval force of the United States, in the neighborhood of East Florida, to give you any assistance, in case of emergency, which you may think necessary, and require. It is not expected, if you find it proper to withdraw the troops, that you should interfere to compel the patriots to surrender the country, or any part of it, to the Spanish authorities. The United States are responsible for their own conduct only, not for that of the inhabitants of East Florida. Indeed, in consequence of the comportment of the United States to the inhabitants, you have been already instructed not to withdraw the troops, unless you find that it may be done consistently with their safety, and to report to the Government the result of your conferences with the Spanish authorities, with your opinion of their views, holding in the mean time the ground occupied. In the present state of our affairs with Great Britain the course above pointed out is the more justifiable and proper. I have the honor to be, &c., JAMES MONROE. FRIDAY, July 3. A message was received from the Senate, by Mr. SMITH, of Maryland, and Mr. LEIB, a committee appointed for the purpose, notifying the House that the Senate have rejected the bill, entitled "An act authorizing the President to take possession of a tract of country lying south of the Mississippi Territory and of the State of Georgia, and for other purposes." MONDAY, July 6. On motion of Mr. BIBB, _Resolved_, That the injunction of secrecy, so far as concerns "An act to enable the President of the United States, under certain contingencies, to take possession of the country lying east of the Perdido, and south of the State of Georgia and the Mississippi Territory, and for other purposes," passed on the twelfth of January, one thousand eight hundred and eleven, and "A bill authorizing the President to take possession of a tract of country lying south of the Mississippi Territory and of the State of Georgia, and for other purposes;" passed the twenty-fifth of June last, and the proceedings thereon, respectively, be removed. And, also, so far as relates to the following letters: two from the Secretary of State to General G. Matthews, one dated the twenty-sixth of January, one thousand eight hundred and eleven, and the other the fourth of April, one thousand eight hundred twelve and two from Mr. Monroe to General D. B. Mitchell, one dated the tenth of April, the other the twenty-seventh of May, one thousand eight hundred and twelve. The doors were then opened. TWELFTH CONGRESS.--SECOND SESSION. BEGUN AT THE CITY OF WASHINGTON, NOVEMBER 2, 1812. PROCEEDINGS IN THE SENATE. MONDAY, November 2, 1812. The second session of the twelfth Congress commenced this day at the city of Washington, conformably to the act passed at the last session, entitled "An act fixing the time for the next meeting of Congress;" and the Senate assembled in their Chamber. PRESENT. NICHOLAS GILMAN and CHARLES CUTTS, from New Hampshire. JOSEPH B. VARNUM, from Massachusetts. CHAUNCEY GOODRICH, from Connecticut. JEREMIAH B. HOWELL, from Rhode Island. JONATHAN ROBINSON, from Vermont. JOHN LAMBERT, from New Jersey. MICHAEL LEIB, from Pennsylvania. OUTERBRIDGE HORSEY, from Delaware. SAMUEL SMITH, from Maryland. JESSE FRANKLIN and JAMES TURNER, from North Carolina. JOHN GAILLARD, from South Carolina. WILLIAM H. CRAWFORD and CHARLES TAIT, from Georgia. GEORGE W. CAMPBELL, from Tennessee. THOS. WORTHINGTON and ALEXANDER CAMPBELL, from Ohio. There being no quorum, the Senate adjourned till to-morrow. TUESDAY, November 3. ANDREW GREGG, from the State of Pennsylvania, and JOHN TAYLOR, from the State of South Carolina, severally attended. WILLIAM H. CRAWFORD, President _pro tempore_, resumed the chair. _Ordered_, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business. A message from the House of Representatives informed the Senate that a quorum of the House is assembled and ready to proceed to business. The House have appointed a committee on their part, jointly with such committee as may be appointed on the part of the Senate, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled and ready to receive any communication that he may be pleased to make to them. The Senate concurred in the appointment of a joint committee on their part, agreeably to the resolution last mentioned; and Messrs. GAILLARD, and SMITH of Maryland, were appointed the committee. A committee was appointed agreeably to the 42d rule for conducting business in the Senate. Messrs. LEIB, FRANKLIN, and GREGG, are the committee. _Resolved_, That each Senator be supplied, during the present session, with three such newspapers printed in any of the States as he may choose, provided that the same be furnished at the usual rate for the annual charge of such papers: and provided, also, that if any Senator shall choose to take any newspapers other than daily papers, he shall be supplied with as many such papers as shall not exceed the price of three daily papers. Mr. GAILLARD reported from the joint committee, that they had waited on the President of the United States, and that the President had informed the committee that he would make a communication to the two Houses at twelve o'clock to-morrow. WEDNESDAY, November 4. OBADIAH GERMAN, from the State of New York, took his seat in the Senate. On motion by Mr. LEIB, a committee of three members were appointed, who, with three members of the House of Representatives, to be appointed by the said House, shall have the direction of the money appropriated to the purchase of books and maps for the use of the two Houses of Congress; and Messrs. LEIB, TAIT, and CAMPBELL of Tennessee, were appointed the committee on the part of the Senate. _President's Annual Message._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _Fellow-citizens of the Senate and House of Representatives_: On our present meeting, it is my first duty to invite your attention to the providential favors which our country has experienced, in the unusual degree of health dispensed to its inhabitants, and in the rich abundance with which the earth has rewarded the labors bestowed on it. In the successful cultivation of other branches of industry, and in the progress of general improvement favorable to the national prosperity, there is just occasion, also, for our mutual congratulations and thankfulness. With these blessings are necessarily mingled the pressures and vicissitudes incident to the state of war into which the United States have been forced by the perseverance of a foreign power in its system of injustice and aggression. Previous to its declaration, it was deemed proper, as a measure of precaution and forecast, that a considerable force should be placed in the Michigan Territory, with a general view to its security, and, in the event of war, to such operations in the uppermost Canada as would intercept the hostile influence of Great Britain over the savages, obtain the command of the lake on which that part of Canada borders, and maintain co-operating relations with such forces as might be most conveniently employed against other parts. Brigadier General Hull was charged with this provisional service; having under his command a body of troops composed of regulars and volunteers from the State of Ohio. Having reached his destination after his knowledge of the war, and possessing discretionary authority to act offensively, he passed into the neighboring territory of the enemy, with a prospect of easy and victorious progress. The expedition, nevertheless, terminated unfortunately, not only in a retreat to the town and fort of Detroit, but in the surrender of both, and of the gallant corps commanded by that officer. The causes of this painful reverse will be investigated by a military tribunal. A distinguishing feature in the operations which preceded and followed this adverse event, is the use made by the enemy of the merciless savages under their influence. Whilst the benevolent policy of the United States invariably recommended peace, and promoted civilization among that wretched portion of the human race; and was making exertions to dissuade them from taking either side in the war, the enemy has not scrupled to call to his aid their ruthless ferocity, armed with the horrors of those instruments of carnage and torture which are known to spare neither age nor sex. In this outrage against the laws of honorable war, and against the feelings sacred to humanity, the British commanders cannot resort to a plea of retaliation; for it is committed in the face of our example. They cannot mitigate it, by calling it a self-defence against men in arms; for it embraces the most shocking butcheries of defenceless families. Nor can it be pretended that they are not answerable for the atrocities perpetrated; since the savages are employed with a knowledge, and even with menaces, that their fury could not be controlled. Such is the spectacle which the deputed authorities of a nation, boasting its religion and morality, have not been restrained from presenting to an enlightened age. The misfortune of Detroit was not, however, without a consoling effect. It was followed by signal proofs that the national spirit rises according to the pressure on it. The loss of an important post, and of the brave men surrendered with it, inspired every where new ardor and determination. In the States and districts least remote, it was no sooner known, than every citizen was ready to fly with his arms, at once, to protect his brethren against the blood-thirsty savages let loose by the enemy on an extensive frontier, and to convert a partial calamity into a source of invigorated efforts. This patriotic zeal, which it was necessary rather to limit than excite, has embodied an ample force from the States of Kentucky and Ohio, and from parts of Pennsylvania and Virginia. It is placed, with the addition of a few regulars, under the command of Brigadier General Harrison, who possesses the entire confidence of his fellow-soldiers, among whom are citizens, some of them volunteers in the ranks, not less distinguished by their political stations, than by their personal merits. The greater portion of this force is proceeding on its destination, towards the Michigan Territory, having succeeded in relieving an important frontier post, and in several incidental operations against hostile tribes of savages, rendered indispensable by the subserviency into which they had been seduced by the enemy; a seduction the more cruel, as it could not fail to impose a necessity of precautionary severities against those who yielded to it. At a recent date, an attack was made on a post of the enemy near Niagara, by a detachment of the regular and other forces, under the command of Major General Van Rensselaer, of the militia of the State of New York. The attack, it appears, was ordered, in compliance with the ardor of the troops, who executed it with distinguished gallantry, and were, for a time, victorious; but not receiving the expected support, they were compelled to yield to reinforcements of British regulars and savages. Our loss has been considerable, and is deeply to be lamented. That of the enemy, less ascertained, will be the more felt, as it includes, among the killed, the commanding general, who was also Governor of the province; and was sustained by veteran troops, from inexperienced soldiers, who must daily improve in the duties of the field. Our expectation of gaining the command of the lakes, by the invasion of Canada from Detroit, having been disappointed, measures were instantly taken to provide, on them, a naval force superior to that of the enemy. From the talents and activity of the officer charged with this object, every thing that can be done may be expected. Should the present season not admit of complete success, the progress made will insure, for the next, a naval ascendency, where it is essential to our permanent peace with, and control over, the savages. Among the incidents to the measures of the war, I am constrained to advert to the refusal of the Governors of Massachusetts and Connecticut to furnish the required detachments of militia towards the defence of the maritime frontier. The refusal was founded on a novel and unfortunate exposition of the provisions of the constitution relating to the militia. The correspondences which will be before you, contain the requisite information on the subject. It is obvious that, if the authority of the United States to call into service and command the militia for the public defence, can be thus frustrated, even in a state of declared war, and of course, under apprehensions of invasion preceding war, they are not one nation for the purpose most of all requiring it; and that the public safety may have no other resource, than in those large and permanent military establishments which are forbidden by the principles of our free Government, and against the necessity of which the militia were meant to be a constitutional bulwark. On the coasts, and on the ocean, the war has been as successful as circumstances inseparable from its early stages could promise. Our public ships and private cruisers, by their activity, and, where there was occasion, by their intrepidity, have made the enemy sensible of the difference between a reciprocity of captures, and the long confinement of them to their side. Our trade, with little exception, has safely reached our ports; having been much favored in it by the course pursued by a squadron of our frigates, under the command of Commodore Rodgers. And in the instance in which skill and bravery were more particularly tried with those of the enemy, the American flag had an auspicious triumph. The frigate Constitution, commanded by Captain Hull, after a close and short engagement, completely disabled and captured a British frigate; gaining for that officer, and all on board, a praise which cannot be too liberally bestowed; not merely for the victory actually achieved, but for that prompt and cool exertion of commanding talents, which, giving to courage its highest character, and to the force applied its full effect, proved that more could have been done in a contest requiring more. Anxious to abridge the evils from which a state of war cannot be exempt, I lost no time after it was declared, in conveying to the British Government the terms on which its progress might be arrested, without awaiting the delays of a formal and final pacification; and our Chargé d'Affaires at London was, at the same time, authorized to agree to an armistice founded upon them. These terms required that the Orders in Council should be repealed as they affected the United States, without a revival of blockades violating acknowledged rules; and that there should be an immediate discharge of American seamen from British ships, and a stop to impressment from American ships, with an understanding that an exclusion of the seamen of each nation from the ships of the other should be stipulated; and that the armistice should be improved into a definitive and comprehensive adjustment of depending controversies. Although a repeal of the Orders susceptible of explanations meeting the views of this Government had taken place before this pacific advance was communicated to that of Great Britain, the advance was declined from an avowed repugnance to a suspension of the practice of impressments during the armistice, and without any intimation that the arrangement proposed, with respect to seamen, would be accepted. Whether the subsequent communications from this Government, affording an occasion for reconsidering the subject on the part of Great Britain, will be viewed in a more favorable light, or received in a more accommodating spirit, remains to be known. It would be unwise to relax our measures, in any respect, on a presumption of such a result. The documents from the Department of State, which relate to this subject, will give a view also of the propositions for an armistice, which have been received here, one of them from the authorities at Halifax and in Canada, the other from the British Government itself, through Admiral Warren; and of the grounds on which neither of them could be accepted. Our affairs with France retain the posture which they held at my last communications to you. Notwithstanding the authorized expectations of an early as well as favorable issue to the discussions on foot, these have been procrastinated to the latest date. The only intervening occurrence meriting attention, is the promulgation of a French decree purporting to be a definitive repeal of the Berlin and Milan decrees. This proceeding, although made the ground of the repeal of British Orders in Council, is rendered, by the time and manner of it, liable to many objections. The final communications from our special Minister to Denmark, afford further proofs of the good effects of his mission, and of the amicable disposition of the Danish Government. From Russia, we have the satisfaction to receive assurances of continued friendship, and that it will not be affected by the rupture between the United States and Great Britain. Sweden also professes sentiments favorable to the subsisting harmony. With the Barbary Powers, excepting that of Algiers, our affairs remain on the ordinary footing. The Consul General, residing with that Regency, has suddenly, and without cause, been banished, together with all the American citizens found there. Whether this was the transitory effect of capricious despotism, or the first act of predetermined hostility, is not ascertained. Precautions were taken by the Consul on the latter supposition. The Indian tribes, not under foreign instigations, remain at peace, and receive the civilizing attentions which have proved so beneficial to them. With a view to that vigorous prosecution of the war to which our national faculties are adequate, the attention of Congress will be particularly drawn to the insufficiency of existing provisions for filling up the Military Establishment. Such is the happy condition of our country, arising from the facility of subsistence and the high wages for every species of occupation, that notwithstanding the augmented inducements provided at the last session, a partial success only has attended the recruiting service. The deficiency has been necessarily supplied during the campaign by other than regular troops, with all the inconveniences and expense incident to them. The remedy lies in establishing more favorably for the private soldier, the proportion between his recompense and the term of his enlistment. And it is a subject which cannot too soon or too seriously be taken into consideration. The same insufficiency has been experienced in the provisions for volunteers made by an act of the last session. The recompense for the service required in this case is still less attractive than in the other. And although patriotism alone has sent into the field some valuable corps of that description, those alone who can afford the sacrifice can be reasonably expected to yield to that impulse. It will merit consideration, also, whether, as auxiliary to the security of our frontiers, corps may not be advantageously organized, with a restriction of their services to particular districts convenient to them. And whether the local and occasional services of mariners and others in the seaport towns, under a similar organization, would not be a provident addition to the means of their defence. I recommend a provision for an increase of the general officers of the army, the deficiency of which has been illustrated by the number and distance of separate commands, which the course of the war and the advantage of the service have required. And I cannot press too strongly on the earliest attention of the Legislature, the importance of the reorganization of the staff establishment, with a view to render more distinct and definite the relations and responsibilities of its several departments. That there is room for improvements which will materially promote both economy and success, in what appertains to the army and the war, is equally inculcated by the examples of other countries, and by the experience of our own. A revision of the militia laws for the purpose of rendering them more systematic, and better adapting them to the emergencies of the war, is, at this time, particularly desirable. Of the additional ships authorized to be fitted for service, two will be shortly ready to sail; a third is under repair, and delay will be avoided in the repair of the residue. Of the appropriations for the purchase of materials for ship building, the greater part has been applied to that object, and the purchase will be continued with the balance. The enterprising spirit which has characterized our naval force, and its success, both in restraining insults and depredations on our coasts, and in reprisals on the enemy, will not fail to recommend an enlargement of it. There being reason to believe that the act prohibiting the acceptance of British licenses is not a sufficient guard against the use of them for purposes favorable to the interests and views of the enemy, further provisions on that subject are highly important. Nor is it less so, that penal enactments should be provided for cases of corrupt and perfidious intercourse with the enemy, not amounting to treason, nor yet embraced by any statutory provisions. A considerable number of American vessels which were in England when the revocation of the Orders in Council took place, were laden with British manufactures, under an erroneous impression that the non-importation act would immediately cease to operate, and have arrived in the United States. It did not appear proper to exercise, on unforeseen cases of such magnitude, the ordinary powers vested in the Treasury Department to mitigate forfeitures, without previously affording to Congress an opportunity of making on the subject such provisions as they may think proper. In their decision, they will doubtless equally consult what is due to equitable considerations and to the public interest. The receipts into the Treasury during the year ending on the 30th of September last, have exceeded sixteen millions and a half of dollars; which have been sufficient to defray all the demands on the Treasury to that day, including a necessary reimbursement of near three millions of the principal of the public debt. In these receipts is included a sum of near five millions eight hundred and fifty thousand dollars, received on account of the loans authorized by the acts of the last session: the whole sum actually obtained on loan amounts to eleven millions of dollars, the residue of which, being receivable subsequent to the 30th of September last, will, together with the current revenue, enable us to defray all the expenses of this year. The duties on the late unexpected importations of British manufactures will render the revenue of the ensuing year more productive than could have been anticipated. The situation of our country, fellow-citizens, is not without its difficulties; though it abounds in animating considerations, of which the view here presented of our pecuniary resources is an example. With more than one nation we have serious and unsettled controversies; and with one, powerful in the means and habits of war, we are at war. The spirit and strength of the nation are nevertheless equal to the support of all its rights, and to carry it through all its trials. They can be met in that confidence. Above all, we have the inestimable consolation of knowing that the war in which we are actually engaged, is a war neither of ambition nor of vain glory; that it is waged, not in violation of the rights of others, but in the maintenance of our own; that it was preceded by a patience without example, under wrongs accumulating without end: and that it was finally not declared until every hope of averting it was extinguished, by the transfer of the British sceptre into new hands clinging to former councils; and until declarations were reiterated to the last hour, through the British Envoy here, that the hostile edicts against our commercial rights and our maritime independence would not be revoked; nay, that they could not be revoked without violating the obligations of Great Britain to other powers, as well as to her own interests. To have shrunk, under such circumstances, from manly resistance, would have been a degradation blasting our best and proudest hopes; it would have struck us from the high ranks where the virtuous struggles of our fathers had placed us, and have betrayed the magnificent legacy which we hold in trust for future generations. It would have acknowledged, that, on the element which forms three-fourths of the globe we inhabit, and where all independent nations have equal and common rights, the American people were not an independent people, but colonists and vassals. It was at this moment, and with such an alternative, that war was chosen. The nation felt the necessity of it, and called for it. The appeal was accordingly made, in a just cause, to the just and all-powerful Being who holds in his hand the chain of events, and the destiny of nations. It remains only, that, faithful to ourselves, entangled in no connections with the views of other powers, and ever ready to accept peace from the hand of justice, we prosecute the war with united counsels and with the ample faculties of the nation, until peace be so obtained, and as the only means, under the Divine blessing, of speedily obtaining it. JAMES MADISON. WASHINGTON, _November 4, 1812_. The Message and documents were read, and twelve hundred and fifty copies ordered to be printed for the use of the Senate. THURSDAY, November 12. PHILIP REED, from the State of Maryland, took his seat in the Senate. WEDNESDAY, November 18. ALLAN B. MAGRUDER, appointed a senator by the Legislature of the State of Louisiana, (and who arrived on the 15th,) produced his credentials, was qualified, and then took his seat in the Senate. WILLIAM HUNTER, from the State of Rhode Island and Providence Plantations, and JAMES LLOYD, from the State of Massachusetts, severally took their seats in the Senate. FRIDAY, November 20. STEPHEN R. BRADLEY, from the State of Vermont, took his seat in the Senate. MONDAY, November 23. JOHN POPE, from the State of Kentucky, took his seat in the Senate. THURSDAY, November 26. RICHARD BRENT, from the State of Virginia, attended; and there being no quorum present the Senate adjourned. FRIDAY, November 27. The Senate resumed the consideration of the motion submitted the 24th instant, that they proceed to ascertain the classes in which the Senators of the State of Louisiana should be inserted, as the constitution and rule heretofore prescribe; and, having agreed thereto, On motion by Mr. TAYLOR, _Ordered_, That the Secretary roll up, and put into the ballot box, two lots, No. 1 and No. 3; that the Senator for whom lot No. 1 shall be drawn, shall be inserted in the class of Senators whose terms of service expire on the third day of March next; and the Senator for whom lot No. 3 shall be drawn, shall be inserted in the class of Senators whose terms of service expire four years after the third day of March next. Whereupon, the numbers above mentioned were by the Secretary rolled up and put into the box, and No. 1 was drawn for ALLAN B. MAGRUDER, who is accordingly in the class of Senators whose terms of service will expire on the third day of March next; and No. 3 was drawn for THOMAS POSEY, who is accordingly in the class of Senators whose terms of service will expire in four years after the third day of March next. MONDAY, November 30. GEORGE M. BIBB, from the State of Kentucky, arrived on the 29th, and attended this day. MONDAY, December 7. THOMAS POSEY, appointed a Senator by the Governor of the State of Louisiana in place of John Destrahan, resigned, produced his credentials, was qualified, and then took his seat in the Senate. WEDNESDAY, December 9. _Encouragement to Privateers._ On motion by Mr. GILES, _Resolved_, That a committee be appointed to inquire into the expediency of offering encouragements at this time to all mariners and seamen to bring within any of the ports of the United States British public and private armed ships, as well as merchant ships or vessels, belonging to the subjects of the United Kingdom of Great Britain and Ireland; and that the committee have leave to report by bill or otherwise. Messrs. GILES, LLOYD, SMITH of Maryland, TAIT, and TAYLOR, were appointed the committee. FRIDAY, December 11. SAMUEL W. DANA, from the State of Connecticut, attended. _Capture of the Macedonian and the Frolic._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I transmit to Congress copies of a letter to the Secretary of the Navy, from Captain Decatur, of the frigate United States, reporting his combat and capture of the British frigate Macedonian. Too much praise cannot be bestowed on that officer and his companions on board, for the consummate skill and conspicuous valor by which this trophy has been added to the naval arms of the United States. I transmit, also, a letter from Captain Jones, who commanded the sloop of war Wasp, reporting his capture of the British sloop of war Frolic, after a close action, in which other brilliant titles will be seen to the public admiration and praise. A nation, feeling what it owes to itself and to its citizens, could never abandon to arbitrary violence, on the ocean, a class of them which give such examples of capacity and courage, in defending their rights on that element; examples which ought to impress on the enemy, however brave and powerful, preference of justice and peace, to hostility against a country, whose prosperous career may be accelerated, but cannot be prevented by the assaults made on it. JAMES MADISON. WASHINGTON, _Dec. 11, 1812_. The Message and papers were read, and referred to the committee appointed 9th November last, to consider that part of the Message of the President of the United States which relates to the Naval Establishment. THURSDAY, December 31. _Death of the Representative, John Smilie._ A message from the House of Representatives informed the Senate of the death of JOHN SMILIE, late a member of the House of Representatives, from the State of Pennsylvania; and that his remains will be interred this day at two o'clock. _Resolved_, That the Senate will attend the funeral of JOHN SMILIE, late a member of the House of Representatives from the State of Pennsylvania, this day at two o'clock; and, as a testimony of respect for the memory of the deceased, they will go into mourning, and wear a black crape round the left arm for thirty days. TUESDAY, January 5, 1813. The credentials of JOHN GAILLARD, appointed a Senator by the Legislature of the State of South Carolina, for six years, commencing on the 4th day of March next, were presented, read, and ordered to lie on file. WEDNESDAY, January 6. The credentials of ABNER LACOCK, appointed a Senator by the Legislature of the State of Pennsylvania for the term of six years, commencing on the 4th day of March next, were read, and ordered to lie on file. MONDAY, January 11. JAMES A. BAYARD, from the State of Delaware, arrived on the 9th instant, and attended this day. WEDNESDAY, January 13. _Capture of British Vessels._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate of the United States_: I transmit to the Senate copies of the correspondence called for by their resolution of the 7th instant. JAMES MADISON. JANUARY 13, 1813. The Message and papers therein referred to were read, and referred to the committee appointed the 9th November, on so much of the Message of the President of the United States as relates to the Naval Establishment, to consider and report thereon. The documents are as follow: BLACK ROCK, _October_ 9, 1812. SIR: I have the honor to inform you that, on the morning of the 8th instant, two British vessels, which I was informed were His Britannic Majesty's brig Detroit, late the United States' brig Adams, and the brig Hunter, mounting fourteen guns, but which afterwards proved to be the brig Caledonia, both said to be well armed and manned, came down the lake, and anchored under the protection of Fort Erie. Having been on the lines for some time, and in a measure inactively employed, I determined to make an attack, and, if possible, get possession of them; a strong inducement to this attempt arose from a conviction that, with those two vessels, added to those which I have purchased and am fitting out, I should be able to meet the remainder of the British force on the upper lakes, and save an incalculable expense and labor to the Government. On the morning of their arrival, I heard that our seamen were but a short distance from this place, and immediately despatched an express to the officers, directing them to use all possible despatch in getting the men to this place, as I had important service to perform. On their arrival, which was about 12 o'clock, I discovered that they had only twenty pistols, and neither cutlasses nor battle axes; but on application to Generals Smyth and Hall, of the regulars and militia, I was supplied with a few arms, and General Smyth was so good, on my request, as immediately to detach fifty men from the regulars, armed with muskets; by four o'clock, in the afternoon, I had my men selected and stationed in two boats which I had previously prepared for the purpose; with those boats, fifty men in each, and under circumstances very disadvantageous, my men having had scarcely time to refresh themselves, after a fatiguing march of five hundred miles, I put off from the mouth of Buffalo creek, at one o'clock the following morning; and at three I was alongside the vessels; in about ten minutes I had the prisoners all secured, the topsails sheeted home, and the vessels under way; unfortunately the wind was not sufficiently strong to get me up against a rapid current into the lake, where I understood another armed vessel lay at anchor, and I was obliged to run down the river by the forts, under a heavy fire of round, grape, and canister, from a number of pieces of heavy ordnance, and several pieces of flying artillery; was compelled to anchor at a distance of about four hundred yards from two of their batteries. After the discharge of the first gun, which was from the flying artillery, I hauled to the shore, and observed to the officer that if another gun was fired, I would bring the prisoners on deck, and expose them to the fate we should all share; but notwithstanding they disregarded the caution, continuing a constant and destructive fire, one single moment's reflection determined me not to commit an act that would subject me to the imputation of barbarity. The Caledonia had been beached in as safe a position as the circumstances would admit of, under one of our batteries at Black Rock; I now brought all the guns of the Detroit on one side, next the enemy, stationed the men at them, and directed a fire, which was continued as long as our ammunition lasted, and circumstances permitted. During the contest, I endeavored to get the Detroit on our side, by sending a line (there being no wind) on shore, with all the line I could muster; but the current being so strong the boat could not reach the shore. I then hauled on shore, and requested that warps should be made fast on the land and sent on board, the attempt to do which again proved useless. As the fire was such as would, in all probability, sink the vessel in a short time, I determined to drop down the river, out of reach of the batteries, and make a stand against the flying artillery. I accordingly cut the cable and made sail, with very light airs, and at that instant discovered that the pilot had abandoned me. I dropped astern, for about ten minutes, when I was brought up on our shore, on Squaw Island; got the boarding boat made, had all the prisoners put in and sent on shore, with directions for the officer to return for me, and what property we could get from the brig; he did not return, owing to the difficulty of the boat's getting ashore. Discovering a skiff under the counter, I sent the four remaining prisoners in the boat, and, with my officer, I went on shore to bring the boat off; I asked for protection to the brig of Lieutenant Colonel Scott, who readily gave it; at this moment I discovered a boat, with about forty soldiers, from the British side, making for the brig; they got on board, but were soon compelled to abandon her, with the loss of nearly all their men. During the whole of this morning both sides of the river kept up, alternately, a constant fire on the brig, and so much injured her that it was impossible to have floated her. Before I left her, she had received twelve shot, of large size, in her bends, her sails in ribands, and her rigging all cut to pieces. To my officers and men, I feel under great obligations; to Captain Towson, and Lieutenant Roach, of the second regiment of artillery; Ensign Presstman, of the infantry; to Cornelius Chapin, Mr. John McComb, Messrs. John Tower, Thomas Davis, Peter Overtacks, James Sloan, resident gentlemen of Buffalo, for their soldier and sailor-like conduct; in a word, every man fought with their hearts animated only by the interest and honor of their country. The prisoners I have turned over to the military. The Detroit mounted six six-pound long guns; a commanding lieutenant, a lieutenant of marines, a boatswain and gunner, and fifty-six men; about thirty American prisoners on board; muskets, pistols, and battle-axes; in boarding her, I lost one man, one officer wounded; Mr. John C. Cummings, acting midshipman, a bayonet through the leg; his conduct was correct, and deserves the notice of the Department. The Caledonia mounted two small guns, blunderbusses, pistols, muskets, cutlasses, and boarding pistols; twelve men, including officers; ten prisoners on board; the boat boarding her, commanded by Sailing-master George Watts, performed his duty in a masterly style; but one man killed and four wounded badly, I am afraid mortally. I enclose you a list of the officers and men engaged in the enterprise, and also a view of the lake and river in the different situations of attack; in a day or two I shall forward the names of the prisoners. The Caledonia belongs to the Northwest Company, laden with furs, worth, I understood, two hundred thousand dollars. JESSE D. ELLIOTT. Hon. PAUL HAMILTON, _Secretary of the Navy_. _Lieutenant Elliott to the Secretary of the Navy._ BLACK ROCK, _October_ 10, 1812. SIR: In my letter of yesterday's date, I stated my intention to enclose to you a list of the officers and men engaged with me in capturing His Britannic Majesty's brig, the Detroit, and brig Caledonia. The incessant fire of the enemy, and my own constant engagements for the protection of the vessels, compel me to postpone sending that list until another opportunity. Last evening, having observed an intention, on the part of the enemy, to remove the ordnance and military stores with which the Detroit was charged, I determined at once to set her on fire; thereby to prevent her having the aid of masts and yards in getting her guns into boats, she having five twelve-pound guns in her hold, and six six-pounders upon her deck, that I could prepare them, and, with my sailors, remove the ordnance during the night, when unobserved by the enemy. These preparations I am now making, and shall, with as much expedition as possible, continue to get the ordnance, and place it in our battery, as we are much in want--- not one piece at Black Rock. The Caledonia I have perfectly recovered from the enemy. I have the honor to be, with great respect, &c., JESSE D. ELLIOTT. _Lieutenant Elliott to Commodore Chauncey, dated_ BLACK ROCK, _October 10, 1812_. SIR: I have the honor to inform you that, on the morning of the 6th instant, two vessels, under British colors, came down Lake Erie, and anchored under the protection of Fort Erie; that, on the same day, a detachment of men arrived from New York, accompanied by Sailing-masters Watts and Chisson, with some masters' mates and midshipmen; that, on the morning following, I, with two boats previously prepared for the purpose, boarded and took possession of them, with the loss of two men killed, Samuel Fortune and Daniel Martin, and four wounded--Acting Midshipman John C. Cummings, John Garling, Nathan Armstrong, Jerome Sardie, and John Yosen. As there is not a probability of your receiving this shortly, I have made a communication to the Department upon the subject, a copy of which I enclose for your perusal. I beg you will not have conceived me hasty in making this attack. I acted as if the action came directly from yourself. Let me recommend to your particular attention the officers and men who performed this service--each and all did their duty. The ensign of the Adams I will send you at an early opportunity; it is at your disposal. The particulars, as it regards the vessels, I will forward you in a day or two; at present I am much engaged. With sentiments, &c. P. S. I have neglected mentioning to you the names of the vessels captured. One, His Britannic Majesty's brig, "the Detroit," formerly the United States' brig Adams; the other, a brig belonging to the Northwest Company, loaded with skins, called the Caledonia. _Commodore Chauncey to Paul Hamilton, Esq., Secretary of the Navy._ SACKETT'S HARBOR, _October 16, 1812_. SIR: I have great pleasure in informing you that, by a gentleman who arrived here yesterday afternoon, from Buffalo, I learn that Lieutenant Elliott, with about sixty sailors, and a number of volunteer militia, cut out from under the guns of Fort Erie, on the night of the 8th instant, the brig Adams (lately surrendered at Detroit) and the schooner Caledonia, laden with peltry, said to be very valuable; but, in running these vessels for Black Rock, they both grounded, in such a situation that the British fort was firing on them, when my informant left there on Friday morning last. It was, however, believed that, if they could not be got off, they could be destroyed. I, however, hope that Lieutenant Elliott will be able to save both vessels; for, such an addition to our little force on Lake Erie, at this time, would be invaluable. Lieutenant Elliott deserves much praise for the promptness with which he executed this service; as the sailors had only arrived at Black Rock on the 8th, and he had no particular orders from me, except to have boats built and prepared for cutting out the British vessels, which I knew rendezvoused near Fort Erie. If Lieutenant Elliott succeeds in saving the Adams and Caledonia, I think that we shall obtain the command of Lake Erie before December; but, as to this lake, I hardly know what to say, as there has not a single pound of powder, nor a gun, arrived yet, and I can make no calculation when any will arrive. I feel quite discouraged, and shall be tempted to seek the enemy, with the Oneida alone, if the guns do not arrive soon. The sailors have all arrived at their places of destination; but the marines have not arrived. I, however, hope to see them to-day or to-morrow. I have the honor to be, &c. ISAAC CHAUNCEY. Hon. PAUL HAMILTON, _Secretary of the Navy_. SACKETT'S HARBOR, _October 27, 1812_. SIR: I have the honor of enclosing you copies of two letters from Lieutenant Elliott, giving an account of his having cut out from under Fort Erie, on Lake Erie, in a most gallant manner, two British brigs, the Detroit (late Adams) and the Caledonia. The Detroit was manned and armed as a man of war; the Caledonia belonged to the Northwest Company, and was loaded with peltry. Nothing that I can say, more than I have already said in a former communication upon this subject, will add to the credit of Lieutenant Elliott, and the gallant officers and men who accompanied him. The thing speaks for itself, and will, I am sure, be duly appreciated by all who may have any idea of the difficulties that he had to encounter, after getting possession of these vessels. I have the honor to be, &c. ISAAC CHAUNCEY. Hon. PAUL HAMILTON, _Secretary of the Navy_. WASHINGTON, _Jan, 8, 1812_. SIR: In answer to your note, requesting of me "a general description of the armament and stores on board at the time of the capture of the Adams, and the probable number of men," I can state that I sailed from Maiden in the Adams, and arrived at Fort Erie on the morning preceding the night in which you captured that vessel. I left her in the afternoon, and crossed in her boat to Buffalo, with a flag. When I left the Adams, she had on board five guns mounted, (six and four pounders,) and six long twelves in her hold. She had also on board a quantity of powder and ball, and a number of boxes of muskets. I am not able to state, of my own knowledge, the number of stand of arms, but I have been informed that nearly all the arms taken at Detroit were on board; if that was the fact, the number must have been two thousand. The number of the crew that I left on board could not vary much from sixty, and the number of American prisoners about thirty, including three officers. I have the honor to be, &c. HARRIS H. HICKMAN. Lieut. D. ELLIOTT, _U. S. Navy_. NAVY DEPARTMENT, _October 27, 1812_. SIR: I have received, with great satisfaction, your communication of the ninth instant, and have been desired by the President of the United States to return to you, and through you to the officers and men under your command, in the expedition to Fort Erie, which terminated to the glory of the American arms, his particular thanks. I am, with great respect, &c. PAUL HAMILTON. P. S. Your having abstained from fulfilling your intimation that you would expose your prisoners to the enemy's fire, is highly approved. JESSE D. ELLIOTT, Esq., _Lieut. Commanding, Black Rock._ TUESDAY, January 26. _Honors to Hull. Decatur, Jones, and Elliott._ The amendment to the joint resolution relative to the brilliant achievements of Captains Hull, Decatur, and Jones, having been reported by the committee correctly engrossed, the resolution was read a third time as amended; and the title thereof was amended, to read as follows: "A resolution relative to the brilliant achievements of Captains Hull, Decatur, Jones, and Lieutenant Elliott." _Resolved_, That this resolution pass with amendments. FRIDAY February 5. JAMES BROWN, appointed a Senator by the State of Louisiana, in the place of John Noel Detrehan, resigned, produced his credentials, was qualified, and took his seat in the Senate. TUESDAY, February 9. The credentials of CHAUNCEY GOODRICH, appointed a Senator by the Legislature of the State of Connecticut for the term of six years, commencing on the 4th day of March next, were read, and laid on file. WEDNESDAY, February 10. _Counting Electoral Votes._ A message from the House of Representatives informed the Senate that the House agree to the report of the joint committee appointed to ascertain and report a mode of examining the votes for President and Vice President of the United States, and of notifying the persons elected of their election, and have appointed Messrs. MACON and TALLMADGE, tellers, on their part. _Ordered_, That Mr. FRANKLIN be appointed a teller of the ballots for President and Vice President of the United States, on the part of the Senate, in place of Mr. GAILLARD, absent from indisposition. A message from the House of Representatives informed the Senate that the House is now ready to attend the Senate in opening the certificates and counting the votes of the Electors of the several States, in the choice of a President and Vice President of the United States, in pursuance of the resolution of the two Houses of Congress; and that the President of the Senate will be introduced to the Speaker's Chair, by the Speaker of the House of Representatives. The two Houses of Congress, agreeably to the joint resolution, assembled in the Representatives' Chamber, and the certificates of the Electors of the several States were, by the President of the Senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the President of the Senate, which was read, as follows: --------------------------------------------------------------+ | President. | Vice President. | States. +----------+----------+----------+----------+ | James | De Witt | Elbridge | Jared | | Madison. | Clinton. | Gerry. |Ingersoll.| ------------------+----------+----------+----------+----------+ New Hampshire | - | 8 | 1 | 7 | Massachusetts | - | 22 | 2 | 20 | Rhode Island | - | 4 | - | 4 | Connecticut | - | 9 | - | 9 | Vermont | 8 | - | 8 | - | New York | - | 29 | - | 29 | New Jersey | - | 8 | - | 8 | Pennsylvania | 25 | - | 25 | - | Delaware | - | 4 | - | 4 | Maryland | 6 | 5 | 6 | 5 | Virginia | 25 | - | 25 | - | North Carolina | 15 | - | 15 | - | South Carolina | 11 | - | 11 | - | Georgia | 8 | - | 8 | - | Kentucky | 12 | - | 12 | - | Tennessee | 8 | - | 8 | - | Ohio | 7 | - | 7 | - | Louisiana | 3 | - | 3 | - | ------------------+----------+----------+----------+----------+ Totals | 128 | 89 | 131 | 86 | ------------------+----------+----------+----------+----------+ The whole number of votes being 217, of which 109 makes a majority; JAMES MADISON had for President of the United States 128 votes, and ELBRIDGE GERRY had for Vice President of the United States 131 votes: Whereupon, the President of the Senate declared JAMES MADISON elected President of the United States, for four years, commencing with the fourth day of March next, and ELBRIDGE GERRY, Vice President of the United States, for four years, commencing on the fourth day of March next. The votes of the Electors were then delivered to the Secretary of the Senate; the two Houses of Congress separated, and the Senate returned to their own Chamber; and, on motion, adjourned. THURSDAY, February 11. _Vice President Elect._ On motion, by Mr. FRANKLIN, _Resolved_, That the President of the United States be requested to cause to be transmitted to ELBRIDGE GERRY, Esq., of Massachusetts, Vice President elect of the United States, notification of his election to that office, and that the President of the Senate do make and sign a certificate in the words following, to wit: "_Be it enacted_, That the Senate and House of Representatives of the United States of America, being convened at the city of Washington, on the second Wednesday of February, in the year of our Lord one thousand eight hundred and thirteen, the underwritten President of the Senate, pro tempore, did, in the presence of the said Senate and House of Representatives, open all the certificates and count all the votes of the Electors for a President and Vice President of the United States; whereupon it appeared that JAMES MADISON, of Virginia, had a majority of the votes of the Electors as President, and ELBRIDGE GERRY, of Massachusetts, had a majority of the votes of the Electors as Vice President; by all which it appears that JAMES MADISON, of Virginia, has been duly elected President, and ELBRIDGE GERRY, of Massachusetts, has been duly elected Vice President of the United States, agreeably to the constitution. "In witness whereof, I have herewith set my hand and caused the seal of the Senate to be affixed, this ---- day of February, 1813." And that the President of the Senate do cause the certificates aforesaid to be laid before the President of the United States, with this resolution. MONDAY, February 22. _Capture and Destruction of the Java._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I lay before Congress a letter, with accompanying documents, from Captain Bainbridge, now commanding the United States' frigate, the Constitution, reporting his capture and destruction of the British frigate, the Java. The circumstances and the issue of this combat, afford another example of the professional skill and heroic spirit which prevail in our naval service. The signal display of both, by Captain Bainbridge, his officers, and crew, command the highest praise. This being a second instance in which the condition of the captured ship, by rendering it impossible to get her into port, has barred a contemplated reward of successful valor, I recommend to the consideration of Congress the equity and propriety of a general provision, allowing, in such cases, both past and future, a fair proportion of the value which would accrue to the captors, on the safe arrival and sale of the prize. JAMES MADISON. FEBRUARY 22, 1813. The Message and accompanying documents were read, and referred to the committee appointed the 9th of November, who have under consideration the naval affairs of the United States, to consider and report thereon. TUESDAY, February 23. _Naturalized Citizens Claiming Protection._ Mr. LEIB presented the memorial of a number of inhabitants of the city and liberties of Philadelphia, stating that they are natives of the United Kingdom of Great Britain and Ireland, and citizens of the United States by adoption; and that, by a late proclamation, issued by the Prince Regent of said Kingdom, the penalty of death is denounced against such of the natural born subjects thereof as shall adhere or give aid to the United States, thereby subjecting them to the punishment for treason against said Kingdom whenever the United States shall call upon them to take part in the existing war, and praying such provision for their protection as the wisdom of Congress may dictate; and the memorial was read. WEDNESDAY, March 3. _Six o'clock in the evening._ _Adjournment._ The Senate proceeded to consider the resolution from the House of Representatives, for the appointment of a joint committee to wait on the President of the United States, and notify him of the intended recess, and concurred therein; and Messrs. VARNUM and GAILLARD were appointed the committee on the part of the Senate. Mr. VARNUM reported, from the committee, that they had waited on the President of the United States, who informed them that he had no further communications to make to the two Houses of Congress. Whereupon, the President adjourned the Senate to meet on the fourth Monday in May next. INAUGURAL SPEECH. _From the National Intelligencer of March 5, 1813._ Yesterday being the day on which commenced the second term of Mr. Madison's re-election to the Presidency, he took the oath to support the Constitution of the United States, administered to him by Chief Justice Marshall, in the presence of many members of Congress, the Judges of the Supreme Court, the foreign Ministers, and a great concourse of ladies and gentlemen. The President was escorted to the Capitol by the cavalry of the District, and received, on his approach to it, by the several volunteer corps of this city, Georgetown, and Alexandria, drawn up in line for the purpose. Previous to taking the oath in the Chamber of the House of Representatives, the President delivered the following SPEECH: About to add the solemnity of an oath to the obligations imposed by a second call to the station in which my country heretofore placed me, I find, in the presence of this respectable assembly, an opportunity of publicly repeating my profound sense of so distinguished a confidence, and of the responsibility united with it. The impressions on me are strengthened by such an evidence, that my faithful endeavors to discharge my arduous duties have been favorably estimated; and by a consideration of the momentous period at which the trust has been renewed. From the weight and magnitude now belonging to it, I should be compelled to shrink, if I had less reliance on the support of an enlightened and generous people, and felt less deeply a conviction, that the war with a powerful nation, which forms so prominent a feature in our situation, is stamped with that justice, which invites the smiles of Heaven on the means of conducting it to a successful termination. May we not cherish this sentiment, without presumption, when we reflect on the characters by which this war was distinguished? It was not declared on the part of the United States, until it had been long made on them, in reality though not in name; until arguments and expostulations had been exhausted; until a positive declaration had been received, that the wrongs provoking it would not be discontinued; nor until this last appeal could no longer be delayed without breaking down the spirit of the nation, destroying all confidence in itself and in its political institutions, and either perpetuating a state of disgraceful suffering, or regaining, by more costly sacrifices and more severe struggles, our lost rank and respect among independent powers. On the issue of the war are staked our national sovereignty on the high seas, and the security of an important class of citizens, whose occupations give the proper value to those of every other class. Not to contend for such a stake, is to surrender our equality with other powers on the element common to all, and to violate the sacred title which every member of the society has to its protection. I need not call into view the unlawfulness of the practice by which our mariners are forced, at the will of every cruising officer, from their own vessels into foreign ones, nor paint the outrages inseparable from it. The proofs are in the records of each successive administration of our Government; and the cruel sufferings of that portion of the American people have found their way to every bosom not dead to the sympathies of human nature. As the war was just in its origin, and necessary and noble in its objects, we can reflect with a proud satisfaction, that, in carrying it on, no principle of justice or honor, no usage of civilized nations, no precept of courtesy or humanity have been infringed. The war has been waged on our part with scrupulous regard to all these obligations, and in a spirit of liberality which was never surpassed. How little has been the effect of this example on the conduct of the enemy! They have retained as prisoners of war citizens of the United States, not liable to be so considered under the usages of war. They have refused to consider as prisoners of war, and threatened to punish as traitors and deserters, persons emigrating, without restraint, to the United States; incorporated, by naturalization into our political family, and fighting under the authority of their adopted country, in open and honorable war, for the maintenance of its rights and safety. Such is the avowed purpose of a Government which is in the practice of naturalizing, by thousands, citizens of other countries, and not only of permitting, but compelling, them to fight its battles against their native country. They have not, it is true, taken into their own hands the hatchet and the knife, devoted to indiscriminate massacre; but they have let loose the savages, armed with these cruel instruments; have allured them into their service, and carried them to battle by their sides, eager to glut their savage thirst with the blood of the vanquished, and to finish the work of torture and death on maimed and defenceless captives: and, what was never before seen, British commanders have extorted victory over the unconquerable valor of our troops, by presenting to the sympathy of their chief awaiting massacre from their savage associates. And now we find them, in further contempt of the modes of honorable warfare, supplying the place of a conquering force, by attempts to disorganize our political society, to dismember our confederated Republic. Happily, like others, these will recoil on the authors; but they mark the degenerate counsels from which they emanate; and if they did not belong to a series of unexampled inconsistencies, might excite the greater wonder, as proceeding from a Government which founded the very war in which it has been so long engaged, on a charge against the disorganizing and insurrectional policy of its adversary. To render the justice of the war on our part the more conspicuous, the reluctance to commence it was followed by the earliest and strongest manifestations of a disposition to arrest its progress. The sword was scarcely out of the scabbard, before the enemy was apprised of the reasonable terms on which it would be resheathed. Still more precise advances were repeated, and have been received in a spirit forbidding every reliance not placed on the military resources of the nation. These resources are amply sufficient to bring the war to an honorable issue. Our nation is, in number, more than half that of the British isles. It is composed of a brave, a free, a virtuous, and an intelligent people. Our country abounds in the necessaries, the arts, and the comforts of life. A general prosperity is visible in the public countenance. The means employed by the British Cabinet to undermine it, have recoiled on themselves; have given to our national faculties a more rapid development; and draining or diverting the precious metals from British circulation and British vaults, have poured them into those of the United States. It is a propitious consideration, that an unavoidable war should have found this seasonable facility for the contributions required to support it. When the public voice called for war, all knew and still know, that without them it could not be carried on through the period which it might last; and the patriotism, the good sense, and the manly spirit of our fellow-citizens, are pledges for the cheerfulness with which they will bear each his share of the common burden. To render the war short, and its success sure, animated, and systematic exertions alone are necessary; and the success of our arms now may long preserve our country from the necessity of another resort to them. Already have the gallant exploits of our naval heroes proved to the world our inherent capacity to maintain our rights on one element. If the reputation of our arms has been thrown under clouds on the other, presaging flashes of heroic enterprise assure us that nothing is wanting to correspondent triumphs there also, but the discipline and habits which are in daily progress. TWELFTH CONGRESS.--SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. MONDAY, November 2, 1812. This being the day appointed by law for the meeting of Congress, the following members of the House of Representatives appeared, and took their seats, to wit: _From New Hampshire_--Samuel Dinsmoor, Obed Hall, and John A. Harper. _From Massachusetts_--Abijah Bigelow, Elijah Brigham, Richard Cutts, Wm. Ely, Isaiah L. Green, Ebenezer Seaver, William M. Richardson, Charles Turner, jr., Laban Wheaton, Leonard White, Wm. Widgery. _From Rhode Island_--Richard Jackson, jr. _From Connecticut_--Epaphroditus Champion, John Davenport, jr., Lyman Law, and Jonathan O. Mosely. _From Vermont_--Martin Chittenden, Wm. Strong. _From New York_--Daniel Avery, Harmanus Bleecker, James Emott, Asa Fitch, Sam. L. Mitchill, Benjamin Pond, Thomas Sammons, Pierre Van Cortlandt, jr. _From New Jersey_--Adam Boyd, Lewis Condict, Jacob Hufty, and Thomas Newbold. _From Pennsylvania_--Wm. Anderson, David Bard, Robert Brown, William Crawford, William Findlay, Abner Lacock, Aaron Lyle, Jonathan Roberts, Wm. Rodman, Adam Seybert, John Smilie, Geo. Smith, and Robert Whitehill. _From Maryland_--Stevenson Archer, Charles Goldsborough, Joseph Kent, Philip B. Key, Peter Little, Alexander McKim, Samuel Ringgold, Philip Stuart, and Robert Wright. _From Virginia_--John Baker, Burwell Bassett, Matthew Clay, John Dawson, Thomas Gholson, Peterson Goodwyn, Aylett Hawes, Joseph Lewis, jr., William McCoy, Hugh Nelson, Thomas Newton, James Pleasants, jr., and John Roane. _From North Carolina_--Willis Alston, jr., William Blackledge, Meshack Franklin, Nathaniel Macon, Archibald McBryde, and Joseph Pearson. _From South Carolina_--William Butler, John C. Calhoun, Elias Earle, William Lowndes, Thos. Moore, and Richard Wynn. _From Georgia_--William W. Bibb, Geo. M. Troup. _From Kentucky_--Henry Clay, _Speaker_, Joseph Desha, and Stephen Ormsby. _From Tennessee_--Felix Grundy, John Rhea, and John Sevier. _From Ohio_--Jeremiah Morrow. _From Indiana Territory_--Jona. Jennings, _Delegate_. A quorum, consisting of a majority of the whole House, being present, it was ordered that the Clerk do acquaint the Senate therewith. On motion of Mr. DAWSON, a committee was appointed on the part of the House, jointly with such committee as may be appointed on the part of the Senate, to wait on the President of the United States, and inform him that a quorum of the two Houses is assembled, and ready to receive any communication he may be pleased to make to them. Mr. DAWSON and Mr. BLEECKER were appointed the committee on the part of the House. TUESDAY, November 3. Several other members, to wit: From Massachusetts, FRANCIS CARR; from Connecticut, TIMOTHY PITKIN, jr.; from Vermont, SAMUEL SHAW; from New York, ARUNAH METCALF, SILAS STOW, and URI TRACY; from Pennsylvania, JOHN M. HYNEMAN; from Virginia, JOHN SMITH, and THOMAS WILSON; from North Carolina, RICHARD STANFORD; from S. Carolina, LANGDON CHEVES, and DAVID R. WILLIAMS; and, from Kentucky, RICHARD M. JOHNSON, appeared, and took their seats. A message from the Senate informed the House that a quorum of the Senate is assembled, and ready to proceed to business. They have appointed a committee on their part, jointly with the committee on the part of this House, to inform the President of the United States that a quorum of the two Houses is assembled, and ready to receive any communications he may be pleased to make to them. Mr. DAWSON, from the joint committee appointed to wait on the President of the United States, reported that the committee had performed the service assigned to them, and that the President answered that he would make a communication to the two Houses of Congress to-morrow at 12 o'clock. And then the House adjourned. WEDNESDAY, November 4. Several other members, to wit: From Vermont, JAMES FISK; from North Carolina, WM. R. KING and ISRAEL PICKENS; from Georgia, BOLLING HALL; and from Kentucky, ANTHONY NEW, appeared, and took their seats. A Message was received from the PRESIDENT OF THE UNITED STATES. [For which, see Senate proceedings of this date, _ante_, page 567.] The Message having been read was referred, with the documents accompanying it, to the Committee of the whole House on the state of the Union. THURSDAY, November 5. _Constitution and the Guerriere._ Mr. DAWSON rose and said:--Mr. Speaker, I take this early moment to present to you a resolution which I feel pleasure and pride in believing will meet the general approbation, not only of this House, but of the nation. The President of the United States, in his Message, which was read on yesterday, has, in terms eloquent and appropriate, made mention of an engagement which has taken place between an American frigate and one of His Britannic Majesty's, which has rendered to the officers and crew of our frigate that justice which they so justly merited; an engagement in which American tars have proven to the world, that when commanded by officers of skill, valor, and fidelity, they are capable of contending with, and of vanquishing, those of any nation on the earth, upon any element--even on that element where British skill has so justly acquired so much celebrity, and that the American flag, when authorized by the constituted authorities of our country, will command respect on the high road of nations. Far, very far be it from me to boast--it ill becomes an individual or a nation, and is never the concomitant of true courage; but on the present occasion it seems to me proper that we should express our sentiments--our feelings, and thereby the feelings of the nation. I shall, therefore, without further comment, offer you the following resolution, observing that the facts stated have been ascertained at the proper department, and the proofs are on my table: _Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That the President of the United States be, and he is hereby, requested to present, in the name of Congress, to Captain Isaac Hull, a gold medal, with suitable emblems and devices; and that the sum of ---- thousand dollars be, and the same is hereby, appropriated, to be distributed as prize money to the officers and crew of the United States' frigate the Constitution, of forty-four guns, according to the provisions of the act for the better government of the Navy of the United States; in testimony of the high sense entertained by Congress of the gallantry, good conduct, and services of Captain Hull, the officers, and crew, of the said frigate Constitution, in attacking, vanquishing, and capturing the British frigate the Guerriere, mounting fifty-four carriage guns, thereby exhibiting an example highly honorable to the American character, and instructive to our rising Navy. Some conversation passed on the proper mode of disposing of this subject, in the course of which Mr. SEYBERT suggested the propriety of also giving some distinctive or medals to the crew of the Constitution, who he thought were too generally overlooked in such cases. Mr. WRIGHT approved the spirit of the resolution, but hoped the other officers would receive swords, and the men suitable rewards; and confidently hoped a gold medal would be voted to the nearest relative of Lieutenant William Bush of the marines, a young gentleman from his district, who fell gallantly fighting in that action, covered with wounds and glory; he, therefore, for that purpose, moved that the resolution be referred to a select committee. The resolution was eventually ordered to lie on the table till a committee should be appointed to whom it should be referred. FRIDAY, November 6. Several other members, to wit: from New Jersey, GEORGE C. MAXWELL; from Massachusetts, EZEKIEL BACON; from Connecticut, LEWIS B. STURGES; and from Pennsylvania, JAMES MILNOR, appeared, and took their seats. GEORGE POINDEXTER, the Delegate from the Mississippi Territory, also appeared, and took his seat. MONDAY, November 9. Several other members, to wit: from Massachusetts, SAMUEL TAGGART; from Connecticut, BENJAMIN TALLMADGE; from New York, EBENEZER SAGE, and THOMAS R. GOLD; from Pennsylvania, ROGER DAVIS; from Delaware, HENRY M. RIDGELY; and from Virginia, JOHN TALIAFERRO, appeared, and took their seats. _Encouragement to Privateers._ Mr. MITCHILL presented a petition of sundry owners and agents of privateers in the city of New York, praying for a reduction of the duties on prizes and prize goods; that prize property, on condemnation, may be delivered to them to be disposed of and distributed; that the time necessary to procure condemnations may be shortened; that the fees of the officers of prize courts may be limited to a certain sum, and that prize owners and their agents be authorized to order prizes arrived in one port to any other port, at their discretion, at any time before the actual libelling of such prizes. _Exemption of Soldiers from Arrest for Debt._ Mr. BACON stated that, under the present law, exempting from arrest of privates in the Army of the United States in certain cases of debt, frauds had been, and more extensively might be, committed; inasmuch as a soldier who was tired of the service, by giving his bond for a feigned debt for an amount greater than twenty dollars, could procure himself to be arrested and kept out of service, &c. Mr. B. further illustrated the evasions to which the present law is liable, and concluded by moving the following resolution: _Resolved_, That the Committee on Military Affairs be instructed to inquire into the expediency of providing by law for exempting altogether from liability to arrest, or being taken in execution for debt, of any non-commissioned officer, musician, or private, belonging to the Army of the United States, or to any volunteer corps, when called into service pursuant to to law. The resolution was agreed to. TUESDAY, November 10. Another member, to wit, from Virginia, JAMES BRECKENRIDGE, appeared, and took his seat. _Mounted Troops._ Mr. RICHARD M. JOHNSON observed that he had draughted a resolution for the consideration of the House, the object of which was to authorize an expedition of mounted volunteers against the several Indian tribes hostile to the United States. He said the people of the United States had the power and the will to break up and to extirpate those hostile savages, to desolate their country, or compel them to surrender at discretion, as the Miamies had done lately when they beheld the strong arm of the Government uplifted and ready to fall upon them heavily. And it was the imperious duty of Congress so to organize this power, and so to direct this will, as to make it effectual and most destructive to the enemy in the line of its operation. Mr. J. said a winter campaign of mounted men well selected, well organized, and well conducted for sixty days, would close an Indian war, which was restrained on their part by no ties of religion, by no rules of morality, by no suggestions of mercy, by no principles of humanity. Sir, said he, you well know that we cannot so guard any part of our extended line of frontier as to prevent entirely the incursions of savages, so long as they have a place of safety or hiding place upon our borders; by reason of which a few desperate savages, well armed with their rifles, tomahawks, and scalping knives, and paid for the scalps of our citizens, may travel in the night, watch their place of assassination undiscovered, and fall upon our infant settlements thus exposed and massacre them without distinction of age or sex, and not leave even an infant to lisp the sad tale of sorrow to the passing stranger. Such has been the fact in many places on our frontier since the battle of Tippecanoe; and such was the melancholy fact near the Ohio river, in Indiana, when upwards of twenty persons were horribly murdered in cold blood, without the opportunity of resistance; the most of these unfortunate victims were women and children, whose heads were roasted by the fire, and in this cruel mode tortured to death, and under circumstances which would blacken and dye with deeper disgrace the most infamous and abandoned set of beings on earth. Since the defeat of Braddock, Mr. J. observed, the conflict with the Indians had always been an unequal one, and the United States had never carried on such a campaign against them as would bring them to their reason. He observed, that a winter campaign of mounted men would place us on an equality in our contest with the Indians; and he pledged himself for the efficacy of such an expedition, if sanctioned and authorized by Congress, and left to the Executive of Kentucky, so far as the forces were taken from that State. On such a campaign they must meet us in battle, or surrender at discretion; they could not avoid our search nor evade our pursuit--the season would furnish certain means of discovery; their strongholds would be broken up; their squaws and children would fall into our hands, and remain sure pledges against savage ferocity and barbarity. Nothing do they so much fear as to have their squaws taken prisoners. Their winter quarters would be discovered and their stock of winter provisions would be destroyed; and once since the Revolution the friend of his country would enjoy the satisfaction of seeing our savage enemies humbled in the dust and solely at our mercy, notwithstanding all the arts of British intrigue to the contrary. On the contrary, we want no additional evidence, no train of reasoning, nor a particular detail of facts, to convince us that any other kind of force, and at any other period, will only give us a partial remedy. Upon any other principle we give the savage foe every advantage. When threatened and pursued by a force sufficient to chastise them, no warriors can be found--they scatter through the woods like the wild beasts of the forest. Send a small party, and they are immediately surrounded and cut off by superior numbers. In fact, sir, they will not meet at their own doors and firesides equal numbers in honorable combat--they must always have some great and decided advantage. In the several attacks made upon Fort Wayne, Fort Harrison, and Bellevue--at which places our officers and soldiers acted with a firmness and gallantry deserving the highest praises of their country--the Indians retreated at the approach of assistance, and could not be found. We witnessed the same scene when our army penetrated their country from Fort Wayne, who burnt their towns and destroyed their crops. In short, sir, late in the spring, in the summer, and in the fall, every thicket, every swamp--nay, every brush-heap surrounded with weeds furnishes a hiding place; and it is in vain to search after Indians at such a time, if they are not disposed to be seen. Mr. J. said, with this imperfect picture before us, which, however, contained undeniable facts, Congress could not reconcile it to its duty not to take such steps as would speedily terminate the war with the savages. Such steps had been taken as to produce much temporary distress among the Pottawatamies and other tribes, and the destruction of their villages and crops would employ many of their warriors in procuring subsistence for their squaws and children, which consequently gave a correspondent relief to our frontier settlements; that a winter campaign well conducted was indispensable to complete the work which was begun with so much zeal, but which could not produce all the benefit that might be expected from a regular authorized expedition; for it would be recollected that the mounted men had gone out suddenly upon the spur of the occasion, without compensation, with a view to relieve the frontiers from the disasters of Hull's humiliating surrender; and in such voluntary associations many men would consider themselves under less obligations than if employed by the Government, although the party with whom he had the honor to act served beyond the time for which they enrolled themselves, and never quitted the service until honorably discharged. Mr. J. observed, if the savages are unmindful of the many acts of benevolence, of justice and friendship exercised towards them by the United States; if British influence, or British gold, or any other consideration, could induce them to continue the savage practice of imbruing their hands alike in the blood of the warrior in the field, and the infant in its mother's arms; if they will be bound by no obligation however sacred; by no treaty, however solemnly made; by no dictate of nature, no matter how self-evident; the United States are absolved from all acts of further forbearance; and we are called upon by every feeling of duty and honor to disarm them of their fury and put them beyond the power of injury. Mr. J. said he had not intended to trouble the House with so many preliminary remarks, but he had seen in his place the Chairman of the committee to whom the resolution was to be referred, and he was anxious that the design and object of the motion should be known, that the committee might act with despatch if it met with their views: _Resolved_, That the select committee to whom was referred so much of the President's Message as relates to military affairs, be instructed to inquire into the expediency of authorizing an expedition of mounted volunteers against the Indian tribes hostile to the United States. The resolution was agreed to _nem. con._, without debate. THURSDAY, November 12. Another member, to wit, from Kentucky, SAMUEL MCKEE, appeared and took his seat. FRIDAY, November 13. Several other members, to wit: from New York, THOMAS B. COOKE; from New Jersey, JAMES MORGAN; from Virginia, JOHN RANDOLPH; and from North Carolina, LEMUEL SAWYER, appeared, and took their seats. MONDAY, November 16. Several other members, to wit: from Massachusetts, WILLIAM REED; from Rhode Island, ELISHA R. POTTER; from Virginia, DANIEL SHEFFEY; from North Carolina, JAMES COCHRAN; from South Carolina, RICHARD WYNN, appeared, and took their seats. TUESDAY, November 17. _Encouragement to Privateers._ Mr. BASSETT, from the committee appointed on that part of the President's Message which relates to the Naval Establishment, reported, in part, a bill in addition to the act concerning letters of marque, prizes, and prize goods; which was read twice, and committed to a Committee of the Whole to-morrow. The bill is as follows: A Bill in addition to the act concerning letters of marque, prizes, and prize goods. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That all prize property, upon sentence of condemnation, shall, at the request of the owners of the private armed vessel by which the capture shall have been made, or of their agents, be, by the marshal of the district in whose custody the same may be, delivered over to the said owners or their agents, to be by them sold or disposed of at their discretion, and the proceeds thereof distributed by them agreeably to the provisions of law: _Provided_, That all fees, costs, and charges, arising on the process of condemnation, be first paid, and that the duties accruing on such prize goods, as also two per cent. on the estimated value of such prize property, after deducting all duties, costs, and charges, (which value, as it respects the cargo, shall be ascertained in the same manner as is provided by law for ascertaining the value of goods subject to ad valorem duties; and as it respects the vessel, to be ascertained by appraisers to be appointed in the same manner,) shall be first paid, or secured to be paid, to the collector of the district into which such prize property may be brought for condemnation; which two per cent. shall be in lieu of the two per cent. on the net amount of the prize money reserved by the seventh section of the act to which this act is in addition, and shall be pledged and appropriated to the same fund as is thereby provided for. SEC. 2. _And be it further enacted_, That all bonds taken for the security of the two per cent. fund before provided for shall be made payable within sixty days from the time of taking such bonds. SEC. 3. _And be it further enacted_, That the owners of any private armed vessel or vessels, or their agents, may, at any time before a libel shall be filed against any captured vessel or her cargo, remove the same from any port into which it may be first brought, to any other port in the United States, subject to the same restrictions, and complying with the same regulations, with respect to the payment of duties, which are provided by law in relation to other vessels arriving in port with cargoes subject to duty: _Provided_, That before such removal the said captured property shall not have been attached at the suit of any adverse claimant, or a claim against the same have been interposed in behalf of the United States. SEC. 4. _And be it further enacted_, That wherever the proceeds of any prize property has been, or shall be, deposited with the clerk of any district court, pursuant to the orders of said court, upon condemnation, the same shall, at the request of the owners of the private armed vessel by which the capture shall have been made, or of their agents, be paid over to them, to be by them distributed agreeably to the provisions of law. WEDNESDAY, November 18. Another member, to wit, JOSIAH QUINCY, from Massachusetts, appeared, and took his seat. THURSDAY, November 19. _Privateer Prize Law._ The House resolved itself into a Committee of the Whole on the bill in addition to the act concerning prizes and prize goods. Mr. BASSETT, as chairman of the committee who reported the bill, explained its provisions, and enforced the necessity of its adoption. He took occasion to advert to the numerous captures made by our private armed vessels, and their utility as a system of annoyance to the enemy. In every case in which they had come in conflict, they had acquitted themselves in a manner that redounded to their credit. After some further conversation on the details of the bill, the following section was, on motion of Mr. BACON, substituted for the fourth section of the bill: "SEC. 4. _And be it further enacted_, That in cases of sale of prize property by the marshal of any district, or wherever the proceeds thereof has been or shall be deposited with the clerk of any district court, pursuant to the orders of said court upon condemnation, the same shall, by the said marshal or clerk respectively, at the request of the owners of the private armed vessel by which the capture shall have been made, or of their agents, be paid over to them, to be by them distributed agreeably to the provisions of law: _Provided_, That all fees, costs, and charges, arising on condemnation, be first paid, and all duties accruing on such prize property, as also the two per cent. fund accruing on such proceeds, be first paid, or secured to be paid, to the collector of the district into which such prize may be brought for condemnation, and that the marshal and clerk shall be allowed for their services respectively, in selling, receiving, and paying over as aforesaid, a commission of one per cent. and no more, on the net proceeds of such prize property, after deducting the duties, the two per cent. and charges aforesaid: _Provided, also_, That such commission shall not exceed, upon any property included in one condemnation, the sum of one thousand dollars." The bill as thus amended was then ordered to be engrossed for a third reading. _Retaliation._ The engrossed bill "vesting the power of retaliation in the President of the United States in certain cases," was read a third time. A debate of more than an hour took place on the question of its passage, which was finally determined _in the negative_, by yeas and nays--51 to 61. FRIDAY, November 20. _Pay of the Army._ The House went into Committee of the Whole on the bill concerning the pay of the Army of the United States, which was read. Mr. WILLIAMS, as chairman of the committee who reported it, rose to explain the provisions of the bill. He said he hoped the consideration of the bill would not involve a discussion of the justice or necessity of the war. War, said he, is now declared; we have thrown ourselves between our country and the enemy; and it becomes us to carry her triumphantly through the war, or be responsible for the disgrace a contrary course would incur. The reason of the introduction of the first provision of the bill, he said, was the palpable fact, that the present pay of the Army, taking into consideration the price of labor throughout the Union, was much below the average rate. The committee, in the investigations of this business, had, with much labor, consulted all sources of information accessible to them, and in no part of the United States did it appear to be conceded by their Representatives, that the fair price of labor was less than nine dollars per month. Even if the price was as low as eight, or say seven dollars, wherefore should the soldier receive less than any other man? This is a subject on which every gentleman could decide by recurring to his own neighborhood, and inquiring, what was there the price of labor. If he could not procure the service of an individual there for less than eight dollars, how can he refuse the soldier that price which I now solicit for him? The ranks are not filled; we know it by too melancholy a proof; and it is our duty to fill them. How shall we best do it? It will not be contended that your population is insufficient; no, sir; the inducement is not adequate. There is no avocation of life, no employment, however hazardous, which fails to be pursued from a want of persons ready to engage in it. No, sir; if you want men to scale the mountains of ice under the Northern pole, or endure the fervid rays of a vertical sun in the hither India, to brave the stormy ocean, or search for mines in the bowels of the earth; only find them adequate compensation, and there are men enough to be found. The compensation for services performed, ought always to be in proportion to the risk incurred. This is a position which cannot be controverted. There is no reason why the ranks of your Army are not filled so forcible, as that you do not give enough to the privates. Mr. W. then briefly adverted to other provisions of the bill. To the second section he apprehended little objection; it had been found to be necessary, and ample precedent might be found for it. To the third section there might and probably would be some objection. It was founded, he said, on the principle that every man owed to the country which protected him, military service; the same principle, already engrafted in our laws, which obliged the youth of 18 years old to enter into the militia, warranted his retention in the service when he had voluntarily enlisted. The fourth section spoke for itself and needed no explanation. The second section having been read-- Mr. WHEATON said he conceived this section to involve an infraction of the constitution. Any person who had contracted a debt had certainly given a pledge, not only of his property, but of his body to his creditor. It is the creditor's right to take his body in default of payment, and the creditor was by this section, in the case of those enlisting in the army, completely taken out of his hands. Ample encouragement, Mr. W. said, might be given to enlistments without infringing the constitution. He had no objection to privilege the soldier from arrest after enlistment, but he could not consent to the passage of a law, having an _ex post facto_ operation, which went to exempt him from obligations previously contracted. He therefore moved to strike out the words "before or" from the second section above recited. Mr. BACON spoke in support of this provision. It was necessary to guard against fraud. He said, in the village in which he lived, such frauds had been committed, by the creation of fictitious debts, under which a person enlisting had procured himself to be arrested. After this arrest, on giving bail, he was set at large. Whilst going at liberty, his commander had attempted to take him; but a writ of _habeas corpus_ having been taken out, it had been determined by the courts that a man was the property of his bail until the suit was determined. And that determination, Mr. B. said, would never take place so long as the United States had an occasion for the man's services; because, by the same collusion which commenced it, the suit may be continued from term to term of court, until the term of enlistment has expired. He had merely stated facts. He had known an instance of an officer being obliged to move his whole corps over the line to avoid these petty depredations on their ranks; and he would venture to say that the officers would much rather face the enemy in the field, than the host of legal depredators in Massachusetts, on those enlisted for the public service. The principle of this provision was not novel, he said, for it existed already. The motion to strike out the section was then negatived by a large majority. The third section was then read. Mr. STOW rose and said, that the respect he felt for the House, seemed to forbid that he should propose to them any thing not fully matured: but, that at the same time the objections to one section of the bill under consideration, appeared to him so many and so important, that he could not refrain from urging them, though as he feared in somewhat of an irregular and desultory way. In excuse he said, he had supposed the present bill agreeable to the one reported in the Senate, and had not observed the difference till that moment. His objections were to the 3d section, and which he should close by moving that it be stricken out. He arranged his objections principally under three heads: 1st. Its tendency to violate the public morals. 2d. Interference with public economy--and 3d, its violation of the spirit of the Constitution of the United States. He remarked, that proper instruction and discipline of youth lay at the bottom of all that was valuable in this life, and perhaps of the life to come. That it was of great importance in every Government, but above all that it was infinitely so in ours, where the people were real sovereigns, and where the Government would be ill or well administered, according as the youths were bred in temperance, virtue, and obedience. This section of the bill goes to cut up those qualities by the roots. It says to the uneasy boy in his teens, you may enlist and throw off all parental authority; you may enlist and defraud the parent or master, who has maintained you in your helpless state, of his just reward. The strongest ties of affection and gratitude, you may, by enlisting, dissolve in a moment. Nay, more, we say deliberately and solemnly--we will pay this promoted villain $300 for his iniquity! For such is the amount of the bounty and wages for three years. Who, sir, will be most likely to avail himself of this privilege, or rather of this course? Not the sober, faithful minor, who might be trusted in a camp with some degree of safety, but the fickle, turbulent restless youth, the one of all others who wants the salutary restraint of a parent or guardian. This is the person whom you are about to allow to plunge himself into all the dissipations, into all the seductions, and into all the vices of a camp! But, sir, said he, it is inhuman, as well as immoral. Humanity calls upon you to take care of and educate the miserable offspring of the poor. Who will take them; who will provide for their infancy, if at the moment they are able to make any remuneration for this humane, this tender care, you offer them $300 to turn ingrate? But, sir, not only the public morals, but the public economy require that you should not enlist minors without the consent of their parents, guardians, or masters. What does public economy require, but that every one should serve the Republic in that capacity in which he can be most useful? And, sir, let me add that patriotism requires the same thing. If the blacksmith or the farmer is most useful in his calling, there is as much patriotism in attending to the anvil and the farm, as to the bayonet and the sword. Men of mature age, by accepting the terms you offer, or not, determine where they can be most useful; but does not every principle of economy forbid that you should go into the private family, the workshops, and the manufactory, regardless of the opinion of the father and superintendent, and seduce the young man from learning some useful and honorable employment, and in lieu thereof, at that tender, at that doubtful period of human life, you plunge him into all the immoralities of a camp, and turn him a vagabond on society. No, sir, true economy requires that children should be well educated, well governed, and faithfully bred to some honest calling. The very principle, notwithstanding all the talk of patriotism, is recognized in the price you offer for soldiers, as well by the former law, as by the present bill. You offered by the former law, five dollars per month, by the present bill eight dollars. That is, you say to the world, that by being a soldier, you render to your country services worth five or eight dollars. Now, sir, for five or eight dollars per month is it prudent, is it economical, to dissolve the all-important relation of governor and governed in respect to youth? To break up your infant manufactories, and to deprive poor children at once of a useful employment, and a home? But, sir, perhaps it will be said that necessity, the safety of the Republic, requires this. When the legions of Britain were upon our shores, when we were struggling for our very existence, the necessity was not then thought sufficiently imperious to warrant such a principle. Can it then be said, that with treble the population, and in an offensive war, necessity requires the dangerous innovation? Certainly not. Again, the law, then and now, allows the soldier to be arrested for a debt amounting to two dollars; and will you say, that the debt in which there can be no deception incurred, for the most necessary of all things, food, clothing, and instruction for infancy, shall be disregarded? I trust, sir, that a principle so unreasonable will never prevail. But, lastly, said Mr. S., I do contend that the clause is contrary to the spirit, if not the letter, of the constitution. That constitution provides that private property shall not be taken without reasonable compensation. The property which a parent has in the services of his son, of a guardian in the services of his ward, and a master in the services of his servant, though differing widely in degree, is as real and oftentimes more important than the farmer has in his personal estates, or the planter in his slave. It also impairs the force of contract, which is strictly interdicted to the States, and _a fortiori_ not to be done to the General Government. For these and for many other reasons which might be added, Mr. S. moved to strike out the third section of the bill. Mr. MILNOR said that if he understood the third section of the bill under consideration, it allows recruiting officers to enlist minors above the age of eighteen years, without regard to their situation as apprentices to tradesmen, or living under the care and guardianship of their parents; and its object was to hold out to young minds a temptation to desert the useful course destined for them by their friends, for the purpose of becoming soldiers. Now, said Mr. M., whatever may be the necessity of war, on some occasions, and however necessary some might think that in which we are now engaged, which was a question he should not now meddle with, he was desirous that its operations should be so conducted, as to do as little injury as possible to our fellow-citizens; and, as the leading principle in the conduct of all politicians should be a regard to the public good, he hoped for a general concurrence in this sentiment; that, for his own part, he wished the war to be felt as little as possible in the families and occupations of the people. We are not, said he, to be organized into a military Government. However necessary some may deem this war, all will desire a short one. Thank God, no Napoleon has yet risen up amongst us to change our free institutions into a military despotism. Encourage, if you please, a military spirit, that we may be ready for the national defence, when necessary; but let it be done in the spirit of the constitution, by means of a well-regulated militia; let your citizens and your farmers surrender their apprentices and children to be trained and instructed in military tactics, at stated times, that, when arrived at the state of manhood, they may be ready for their country's service. But what is here proposed? To go into the workshop of the industrious mechanic, or into a parent's dwelling, and entice away by the lure of money and military glory, the apprentice and the child. No matter what moneys may have been expended in his education, or how great has been parental exertion to advance the future prospects of the child, any recruiting officer, or even a common soldier, profligate in his principles, and inured to vicious habits, is by this bill encouraged to seduce him from his duty. Mr. TROUP said the objections to this provision were lame in their nature; he only wished they were half as sound as they were novel. It was the result of the experience of men older than themselves in military concerns, that this very description of population, between eighteen and twenty-one, constituted the strength and vigor of every war. What was the fact as respected France? So just was this principle in the contemplation of France, that her whole army is made up of these young men; and yet an attempt is made to deter us from using them by a flimsy pretext, that to employ them would be violating the obligations of a contract and the principles of morality. If our feelings and sympathies be suffered to influence us in favor of the individual who voluntarily enlists, the reasons are much stronger in favor of discharging one-half of those already in your ranks, than the description just spoken of. There is scarcely any man over the age of twenty-one years, between whom and other individuals there is not some strong obligatory moral tie, which we ought not to sever if we could conveniently avoid it. Look at the case of a husband deserting his wife and children, or of a man, above twenty-one, deserting his aged parent, dependent on him for subsistence. Are not these cases equally strong? The doctrine of the gentlemen, whether on the score of morality or expediency, will apply to cases above as well as below the age of twenty-one. Mr. GOLD premised, that he did not rise to enter into the general policy of the war; nor could he deny it to be the duty of those who have declared the war, to provide an army to carry it on. But he added, it is better for the army to be augmented by very liberal bounties and wages, than that important principles should be violated and an inroad made upon the great relations and interests of society. Are gentlemen aware how extensive is the province of master and apprentice? How wide-spread the relation in the community? A sensation will be produced which gentlemen seem not to have anticipated. The respective States have, with studious care, legislated upon and regulated the various duties and obligations of masters and apprentices. Under those laws, a clear obligation is created upon the apprentice to serve till of age; and in some States, to compensate for absence or desertion during the stipulated apprenticeship; for a faithful performance, the parent or guardian becomes responsible; and for non-performance, liable for damages to the master. Can the authors of this bill imagine that those solemn obligations contained in indentures of apprenticeship, will dissolve and vanish under the charm of the bill? Can the fundamental principles of the constitution, rendering contracts sacred, be thus uprooted and destroyed? Can this bill deprive the master of his action, secured to him by the laws of the State, against the master or guardian for absence or desertion of the apprentice? Here is a most serious bearing upon the laws of the States, regulating this important relation. But gentlemen allege _necessity_; the army must be filled up; officers are imposed on by fraudulent minors, who receive the bounty, and then claim a release upon the plea of non-age. In answer, let gentlemen beware how they yield to this fancied plea of necessity. All history attests the danger of yielding essential principles to State necessities; to temporary pressure and impulses; such precedents become infinitely mischievous in society. No fancied benefit can compensate for the evil of such examples. How easy is it to remove much of the complaints by providing that the minor, who shall impose upon the recruiting officer, shall refund the bounty he received before he shall receive his discharge. Such a provision would be just, and not violate general principles. Mr. LITTLE.--In removing one evil, Mr. Chairman, let us beware that we do not substitute a greater. The object of the section proposed to be stricken out of the bill on your table, and now under consideration, is to fill up the ranks of your army. From every attention I have been able to bestow on this subject, which, permit me to say, I am anxiously desirous, as much so, I trust, as any gentleman in this committee, to see realized, will, if returned in its present shape, in my humble opinion, be productive of much evil, and perhaps of little good. You receive into the army, by voluntary enlistment, that description of our fellow-citizens, at a time of life to them the most interesting and auspicious as respects their future pursuits and welfare. I have always been given to understand that the camp is but illy calculated in those stations which they only can fill in the army, either to improve their understandings or perfect them in such habits as are calculated to acquire a respectable subsistence, or fit them for the domestic duties of their future lives. In the course of nature, they, it may be truly said, constitute the future strength and glory of every country. The laws of this land render every act of theirs illegitimate. Abstract from the consideration of a soldier, for which they are only rendered fit from their corporeal powers, everything with them is premature; if forced into existence, like the flower or fruit unseasonably raised in a hot-bed, wears the external qualities, but, in fragrance and taste, is unnatural and insipid. Sir, have we not some reason to doubt the constitutionality of this section. In its operation, it evidently will vitiate contracts, which ought always to be held sacred, solemnly and voluntarily entered into by the parent or guardian with the matter of an apprentice, reciprocally beneficial, founded on the most laudable and praiseworthy principles, on the faithful performance of which materially depends the future welfare of the youth, to which I believe may reasonably be added the comforts and good order of society. Do we not know, Mr. Chairman, that, at that period of their lives and servitude, in which you make them liable, if this section is retained, to be drawn from the service of their masters, that then, and only then, are they enabled and become qualified to make some remuneration for the pains and attention paid to their improvement and instruction by the worthy and industrious mechanic or manufacturer; and will you, by this unpropitious act, endanger the future happiness of the former, and withhold that just reward due to the industry of the latter? You annihilate this contract, which ought to be held, if possible, inviolate by the Government. Every principle of justice and sound policy dictates its rigid fulfilment. Are we not aware, sir, of the immense sums now invested and actively employed in the different manufactories distributed over our extensive country? Do we not know that the manual labor of them is conducted principally by such who now are, or will in time, come within the provision of this section of your bill? Have this Government, and the people of this country, no interest in the prosperity of these manufactories? I have been always taught, and for one do religiously believe, on their materials virtually depends the completion of our independence as a nation. Let me entreat you to reflect before you hazard this dangerous experiment, lest, in the adoption of this hitherto novel principle, and in its operation, you may endanger the safety, or, at least, the prosperity of our Republic, by giving its manufactories a vital stab. Sundry other amendments were proposed in the committee, after the bill was reported to the House, and negatived. The bill was then ordered to be engrossed for a third reading. SATURDAY, November 21. _Pay of the Army._ An engrossed bill "concerning the pay of the non-commissioned officers, musicians, privates, and others of the Army, and for other purposes," was read the third time. Mr. QUINCY.--Mr. Speaker, I am sensible that I owe an apology for addressing you at so early a period of the session, and so soon after taking my seat, if not to the House at least to my particular constituents. It is well known to them, at least to very many of them, for I have taken no pains to conceal the intention, that I came to this session of Congress with a settled determination to take no part in the deliberation of the House. I had adopted this resolution, not so much from a sense of self-respect, as of public duty. Seven years' experience in the business of this House, has convinced me that from this side of the House all argument is hopeless; that whatever a majority has determined to do, it will do in spite of any moral suggestion, or any illustration made in this quarter. Whether it be from the nature of man, or whether it be from the particular provisions of our constitution, I know not, but the experience of my political life has perfectly convinced me of this fact, that the will of the Cabinet is the law of the land. Under these impressions, I have felt it my duty not to deceive my constituents; and had, therefore, resolved by no act or expression of mine, in any way, to countenance the belief, that any representation I could make on this floor could be useful to them, or that I could serve them any farther than by a silent vote. Even now, sir, it is not my intention to enter into this discussion. I shall present you my thoughts rather by way of protest than of argument. And I shall not trouble myself afterwards with any cavils that may be made; neither by whom, nor in what manner. I should not have deviated from the resolution of which I have spoken, were it not for what appears to me the atrocity of the principle, and the magnitude of the mischief contained in the provisions of this bill. When I speak of the principle as atrocious, I beg distinctly to be understood as not impeaching the motives of any gentlemen, or representing them as advocating an atrocious principle. I speak only of the manner in which the object presents itself to my moral view. It is the principle contained in the third section of the bill of which I speak. That section provides, that "every person above the age of eighteen years, who shall be enlisted by any officer, shall be held in the service of the United States during the period of such enlistment; any thing in any act to the contrary notwithstanding." The nature of this provision is apparent, its tendency is not denied. It is to seduce minors of all descriptions, be they wards, apprentices, or children, from the service of their guardians, masters, and parents. On this principle, I rest my objection to the bill. I meddle not with the nature of the war. Nor is it because I am hostile to this war, both in its principle and its conduct, that I at present make any objection to the provisions of the bill. I say nothing against its waste of public money. If eight dollars a month for the private be not enough, take sixteen dollars. If that be not enough take twenty. Economy is not my difficulty. Nor do I think much of that objection of which my honorable friend from Pennsylvania (Mr. MILNOR) seemed to think a great deal; the liberation of debtors from their obligations. So far as relates to the present argument, without any objection from me, you may take what temptations you please, and apply them to the ordinary haunts for enlistment--clear the jails--exhaust the brothel--make a desert of the tippling shop--lay what snares you please for overgrown vice, for lunacy, which is of full age, and idiocy out of its time. But here stop. Touch not private right--regard the sacred ties of guardian and master--corrupt not our youth--listen to the necessities of our mechanics and manufacturers--have compassion for the tears of parents. In order to give a clear view of my subject, I shall consider it under three aspects--its absurdity--its inequality--its immorality. In remarking on the absurdity of this principle it is necessary to recur to that part of the Message of the President of the United States at the opening of the present session of Congress, which introduced the objects proposed in this bill to the consideration of the House; and to observe the strange and left-handed conclusions it contains. The paragraph to which I allude is the following: "With a view to that vigorous prosecution of the war, to which our national faculties are adequate, the attention of Congress will be particularly drawn to the insufficiency of existing provisions for filling up the Military Establishment. Such is the happy condition of our country, arising from the facility of subsistence and the high wages for every species of occupation, that, notwithstanding the augmented inducements provided at the last session, a partial success only has attended the recruiting service. The deficiency has been necessarily supplied during the campaign, by other than regular troops, with all the inconveniences and expense incident to them. The remedy lies in establishing more favorably for the private soldier, the proportion between his recompense and the term of enlistment. And it is a subject which cannot too soon or too seriously be taken into consideration." Mr. Speaker--What a picture of felicity has the President of the United States here drawn in describing the situation of the yeomanry of this country! Their condition happy--subsistence easy--wages high--full employ. To such favored beings what would be the suggestions of love, truly parental? Surely that so much happiness should not be put at hazard. That innocence should not be tempted to scenes of guilt. That the prospering ploughshare should not be exchanged for the sword. Such would be the lessons of parental love. And such will always be the lessons which the President of the United States will teach in such a state of things, whenever a father of his country is at the head of the nation. Alas! Mr. Speaker, how different is this Message! The burden of the thought is, how to decoy the happy yeomen from home, from peace, and prosperity, to scenes of blood--how to bait the man-trap; what inducements shall be held forth to avarice, which neither virtue nor habit, nor wise influences, can resist. But this is not the whole. Our children are to be seduced from their parents. Apprentices are invited to abandon their masters. A legislative sanction is offered to perfidy and treachery. Bounty and wages to filial disobedience. Such are the moral means by which a war, not of defence or of necessity, but of pride and ambition, should be prosecuted. Fit means to such an end. The absurdity of this bill consists in this: in supposing these provisions to be the remedy for the evil, of which the President complains. The difficulty is, that men cannot be enlisted. The remedy proposed is, more money--and legislative liberty to corrupt our youth. And how is this proved to be a remedy? Why it has been told us, on the other side of the House, that this is the thing they do in France. That the age between eighteen and twenty-one is the best age to make soldiers. That it is the most favorite age, in Bonaparte's conscription. Well, sir, what then? Are we in France? Is Napoleon our king? Or is he the President of the United States? The style in which this example has been urged on the House, recalls to my recollection very strongly a caricature print which was much circulated in the early period of our Revolutionary war. The picture represented America as a hale youth, about eighteen or twenty-one, with a huge purse in his pocket. Lord North, with a pistol at his breast, was saying "deliver your money." George the Third, pointing at the young man, and, speaking to Lord North, said, "I give you that man's money for my use." Behind the whole group was a Frenchman capering, rubbing his hands for joy, and exclaiming, "Be Gar! just so in France!" Now, Mr. Speaker, I have no manner of doubt, that the day that this act passes, and the whole class of our Northern youth is made subject to the bribes of your recruiting officers, that there will be thousands of Frenchmen in these United States, rubbing their hands for joy, and exclaiming, "Be Gar! just so in France." Sir, the great mistake of this whole project lies in this: that French maxims are applied to American States. Now it ought never to be lost sight of by the legislators of this country, that the people of it are not and never can be Frenchmen--and, on the contrary, that they are, and can never be any thing else than freemen. The true source of the absurdity of this bill, is a mistake in the nature of the evil. The President of the United States tells us that the Administration have not sufficient men for their armies. The reason is, he adds, the want of pecuniary motive. In this lies the error. It is not pecuniary motive that is wanting to fill your armies. It is moral motive in which you are deficient. Sir, whatever difference of opinion may exist among the happy and wise yeomanry of New England, in relation to the principle and necessity of this war, there is very little, or at least much less diversity of sentiment, concerning the invasion of Canada, as a means of prosecuting it. They do not want Canada as an object of ambition; they do not want it as an object of plunder. They see no imaginable connection between the conquest of that province and the attainment of those commercial rights which were the pretended objects of the war. On the contrary, they see, and very plainly too, that if our Cabinet be gratified in the object of its ambition, and Canada become a conquered province, that an apology is immediately given for extending and maintaining in that country a large military force; under pretence of preserving the conquered territories--really, with a view to overawe adjoining States. With this view of that project the yeomanry of New England want that moral motive which will alone, in that country, fill your armies with men worthy enlisting. They have no desire to be the tools of the ambition of any man, or any set of men. Schemes and conquest have no charms for them. Abandon your projects of invasion; throw your shield over the seaboard and the frontier; awe into silence the Indians in your territory; fortify your cities; take the shackles from your commerce; give us ships and seamen; and show the people of that country a wise object of warfare; and there will be no want of men, money, or spirit. I proceed to my second objection, which was to the inequality of the operation of the provisions of this bill. It is never to be forgotten, in the conduct of the Government of these United States, that it is a political association of independent sovereignties, greatly differing in respect of wealth, resource, enterprise, extent of territory, and preparation of arms. It ought, also, never to be forgotten, that the proportion of physical force which nature has given does not lie within precisely the same line of division with the proportion of political influence which the constitution has provided. Now, sir, wise men, conducting a political association thus constructed, ought always to have mainly in view, not to disgust any of the great sections of the country, either in regard to their interests, their habits, or their prejudices. Particularly ought they to be cautious not to burden any of the great sections in a way peculiarly odious to them, and in which the residue of the States cannot be partakers, or at least only in a very small degree. I think this principle of political action is incontrovertible. Now, sir, of all the distinctions which exist in these United States, that which results from the character of the labor in different parts of the country, is the most obvious and critical. In the Southern States, all the laborious industry of the country is conducted by slaves; in the Northern States it is conducted by the yeomanry, their apprentices, or children. The truth is, that the only real property, in the labor of others, which exists in the Northern States, is that which is possessed in that of minors--the very class of which, at its most valuable period, this law proposes to divest them. The planter of the South can look round upon his fifty, his hundred, and his thousand of human beings, and say, These are my property. The farmer of the North has only one or two _ewe lambs_--his children--of which he can say, and say with pride, like the Roman matron, "These are my ornaments." Yet these, this bill proposes to take from him, or (what is the same thing) proposes to corrupt them--to bribe them out of his service; and that, too, at the very age when the desire of freedom is the most active, and the splendor of false glory the most enticing. Yet, your slaves are safe; there is no project for their manumission in the bill. The husbandman of the North, the mechanic, the manufacturer, shall have the property he holds in the minors subject to him put to hazard. Your property in the labor of others is safe. Where is the justice--where the equality--of such a provision? It is very well known in our country--indeed it is obvious, from the very nature of the thing--that the exact period of life at which the temptation of this law begins to operate upon the minor, is the moment when his services begin to be the most useful to the parent or master. Until the age of 18, the boy has hardly paid to the parent or master the cost of his clothing and education. Between the age of 18 and 20, is just the period of profit to the father and master. It is also the period at which, from the approximation towards manhood, service begins to grow irksome, and the desire of liberty powerful. The passions are then, also, in their most ungoverned sway; and the judgment, not yet ripe, can easily be infatuated and corrupted by the vain dreams of military glory. At this period, your law appears with its instruments of seduction. It offers freedom to the minor's desire of liberty--plunder to his avarice--glory to his weakness. In short, it offers bounty and wages for disobedience to his natural or social obligations. This is a true view of this law. That it will have that full operation which its advocates hope and expect--that it will fill your armies with runaways from their masters and fathers--I do not believe; but, that it will have a very great operation, I know. The temptation to some of our youth will be irresistible. With my consent, they shall never be exposed to it. Mr. Speaker, I hope what I am now about to say will not be construed into a threat. It is not uttered in that spirit; but only to evince the strength of my convictions concerning the effect of the provisions of this law on the hopes of New England, particularly of Massachusetts. But pass it, and if the Legislatures of the injured States do not come down upon your recruiting officers with the old laws against kidnapping and man-stealing, they are false to themselves, their posterity, and their country. Mr. FISK expressed the astonishment he felt at the observation which had fallen from the gentleman last up. He certainly agreed with the gentleman in one thing: that those who are in pursuit of a favorite object frequently overleap the bounds of reason and decorum in support of it. Now, it had been a favorite object with that gentleman to shield the British Government from blame; and it was an object which he certainly pursued with the greatest ardor and anxiety. In the address of that gentleman's political friends, in Congress, to their constituents, subsequent to the declaration of war, it had been deceptively said, that a disposition existed in the British Government to make an arrangement on the subject of impressment. Now, sir, that the ground is taken from under them, we hear that the object of the war is an unrighteous one, and we are guilty of waging it. Is it indeed guilty to defend our country? said Mr. F. The gentleman would overawe the Indians. Sir, the most innocent party in the war against us is the savage himself. How comes he in the ranks against us, with his tomahawk and scalping knife? Why is he impelled to shed our blood? Why has the gentleman shielded British instigation of their outrages? Again, sir, has the gentleman no feeling for the sufferings, no ear for the groans of our suffering seamen? Has he no sympathy for those relations of life, from which the seamen is torn away, and for that moral sentiment which is violated in that outrage--and are we _guilty_ because we seek to shield our citizens from it? Are we guilty because we resist the British scalping knife? Recall the year '98 to your recollection, sir, and the pompous display of energy at that day, and the armies raised--to fight whom?--a few miserable Frenchmen whom they could catch at sea. War was then a mere amusement. Why, that we are now at war with the nation who has been seizing our property, capturing our citizens, and carrying them into slavery--why are our means for carrying on war to be limited? As to the provision of this bill so much objected to, was it esteemed such a violation of all right and principle in the commencement of the Revolution to take children of sixteen years of age from their parents? That was a period when the youth of the country were invited to the field. I was one who accepted the invitation, and I have never regretted it. But, says the gentleman, will you take the child from the parent? Sir, which excites the most tears--a child leaving his parent to defend his country, or a parent torn from his family and his country to fight for a foreign power? The truth is, that most of those who object to this bill would destroy all the means of carrying on the war, if they could. It was not thought immoral in the war of the Revolution to take youths of this age, nor were they the least efficient part of our army. Mr. D. R. WILLIAMS said, if it was possible for him to keep down those feelings of indignation which pressed upon his mind, in what he had now to offer, he would speak with due respect to the orders of the House, and not infringe its privileges. He wished, indeed, he had not occasion to speak; but, sir, said he, it is my misfortune to be the Chairman of the Military Committee, more, Mr. Speaker, by your partiality than by any merit of mine. I am compelled to rise. I have been stigmatized by the gentleman (Mr. QUINCY) as the introducer into this House of an atrocious principle. If such language comports with our rules of order, I must submit, seeing it is uttered where he is protected; but, sir, I must pronounce it a libel on myself, and throw it back on him who uttered it, as a foul, atrocious libel on the committee. Sir, I came here not disposed to use such language; nothing but extreme injury should extort it from me. I wish that the gentleman had kept the resolve he informed us he had formed; as he could not do so, I would that he had been good enough to spare me from the acrimony of his remarks. Atrocity! The advocate of an atrocious principle! Let the gentleman recur to those who originated this principle; let him go back to the day of the Revolution, and damn the memory of the patriots of those times, the fruit of whose labors he so ill deserves to enjoy. The provisions of those days authorized the enlistment of all over the age of sixteen years. Nor does the statement which the gentleman from New York made alter the case, for if there be an increase of population since the Revolution, there appears to be a correspondent deterioration of patriotism. The gentleman from Massachusetts admits that a necessity may exist to justify the course proposed by the bill. Well, sir, was there ever a crisis calling on a people for vigorous exertions more awful than that which impends over us now? Now, when a vile spirit of party has gone abroad and distracted the Union? Now, that the State which the gentleman represents is almost in arms against us? And, in such a state of things are we to be told that we are espousing an atrocious principle, because we are seeking for the means to defend our country? The will of the President is the law of the land, says the gentleman. How can he expect his arguments to be attended to, when the first word he utters after taking his seat is to insult and abuse every one opposed to him in opinion. I beg your pardon, Mr. Speaker, I ask that of the House, for the language I am compelled to use; but so long as I am a man, so help me God, when I am told I am actuated by an atrocious principle, I will throw it back in the teeth of the assertor as an atrocious falsehood. Look back on the principle adopted by the friends of that gentleman--I wish I could say who were his friends--I do not call the honest federalist, who is willing to support his country's rights, his friend--even in England, the nation from which he talks of receiving his religion and morality, and I might add, his ideas of _our_ rights--even in that country they do not prevent enlistment of minors--that is, they are not discharged on the ground of minority. I have said before, sir, that we had examples in our own Government, drawn not to be sure from the purest times, but which more than covered the whole case. A law was passed in 1798 which authorized the enlistment not only, of minors but every description of persons whom the President of the United States thought proper to have enlisted--which authorized him to send his recruiting sergeants into every family and take those who suited him best. This was the principle of his friends. Does the gentleman say that it was atrocious in 1798 to defend ourselves against the French? But it has become so now, seeing the defence we seek is against the English. The gentleman has said we act on an absurd principle; that we have mistaken the means of carrying on the war to effect: we want the moral means. By this I presume he would be understood that the people are opposed to the war, particularly to our land operations. There seems then to be no moral objection to the war on the ocean. And, sir, if it be not immoral to support the war on the ocean, on what possible principle can it be immoral, in the same cause, to support it on the land? The war on both elements is for the same object; not as the gentleman says, to rob and plunder in Canada, but, according to the motto of the gallant Captain Porter, for "free trade and sailors' rights." Mr. PITKIN remarked that the power given to a recruiting officer to enlist minors was a new principle. It had not been acted upon before, or since the Revolution--this is a new mode of raising an army; were gentlemen prepared to adopt this new principle? Although by the resolves of the Congress of 1776, minors could be enlisted, yet apprentices were exempted--and if any were enlisted, yet, on proper application, they were discharged, unless it could be shown the enlistment was with the consent of their masters or guardians. By the law of '98, the President certainly could direct relative to the age and size of a recruit--yet to whom did he apply? Not to apprentices--not to wards--and then if an officer enlisted an apprentice without the consent of his master, he could be taken away from him by the writ of _habeas corpus_ and the officer held liable for damages. The eleventh section of the law for raising an additional military force contained a similar provision, and it was also necessary the consent of the master or guardian should be in writing. Mr. P. did not intend to meddle at all with the policy of war--he should confine himself to the consideration of the most important principle contained in the third section of the bill. The effect of this bill goes to infringe all the State laws. They all provide for the relations which exist between a master and his apprentice--a guardian and his ward; if the apprentice runs away he can be procured and brought back; and some of the States provide, that when the apprentice comes again into the possession of his master, that he shall serve not only the time lost, but an extra time, to remunerate his master by these services for the losses he has sustained. If you take away his apprentice you deprive him of his property--this is a loss to the master, or he must recover where the services are due; that is, of the parent or guardian, who are one of the contracting parties to the indentures--and where is the remedy? Will not the officer be also liable to the State laws? Does not the constitution say, no laws shall be passed abrogating contracts? This bill will in its operation sanction the violation of contracts, or it means nothing--it sanctions the right to take away the property of guardians, parents or masters, without providing any compensation for the same. I repeat, you are introducing a new principle in the mode of administering Government. The pressure is also beyond comparison unequal on the Northern States. Do gentlemen plead the necessity of the case? Does a necessity exist superior to the laws? Are we to understand that the _salus populi_ shall rule without control? If not, then what is meant by this grant to take the property of your constituents, and leave them no remedy for the injury? The honorable gentleman from South Carolina has referred to the practice of other nations. Great Britain herself never incorporated apprentices into her armies. Mr. WILLIAMS admitted that apprentices were exempt--but minors were not. Mr. PITKIN agreed but even when minors are enlisted without the consent of their guardians or masters, they can be released by the writ of _habeas corpus_. I believe that, in 1756, Great Britain passed an act which was designed to extend to only the colonies; it allowed indented servants to be enlisted into the army--but this act made provision for the master, if the compensation was claimed within so many months after enlistment, and the necessary facts were proved before any two justices of the peace. Whether this act was ever carried into effect I do not know--but I do know that compensation was provided for the property taken from the master in the person of, his servant. Mr. TROUP.--If a stranger in the gallery had listened to the member from Massachusetts, he would have supposed that the provision of the bill against which the gentleman's anathemas were most vehemently levelled, authorized the recruiting sergeant to enter the house of the citizen, drag from it the young man, and transport him, loaded with chains, (as is said to be the practice of one nation of Europe,) to the armies. Who would have supposed that the provisions merely authorized the recruiting sergeant to accept the voluntary service of the young man, between eighteen and twenty-one? The service due to the country, prior in point of time, paramount in obligation, must yield, says the gentleman, to the service due to the master, the parent, or the guardian. If, sir, in the days of Rome's greatness, if in the proud days of Grecian glory, the man could have been found base and hardy enough to withhold the young men from the public service, to turn them from the path of honor, or to restrain them from the field of fame, he would have been hurled from the Tarpeian Rock or consigned to the Cave of Trophonius. The young man is preferred here, not because he is preferred in France, but because his physical constitution and his moral temperament peculiarly qualify him for the arduous duties of the field and camp; bodily vigor and activity, ardor, enterprise, impetuosity; without family, and therefore without the cares which family involve. No wife, no helpless children. Without care, but for his country. Without fear, but for her dishonor. He is most eminently qualified for the duties of the camp and the field; all experience has proved it. Mr. MACON said it appeared the House was now in a situation in which it had frequently been heretofore; that is, they take up a very small subject and make a very great one of it. The only question for discussion appeared to him to be, whether or not they would enlist into the Army young men between the ages of eighteen and twenty-one. He was very sorry that, at this early period of the session, a discussion had been introduced into the House, which had at all times better be let alone, that of foreign influence. He did not mean to discuss it; but, if gentlemen were anxious for it, he was perfectly willing to set aside a day for the consideration of the subject, and go about it methodically. He regretted very much that the feature to which he had alluded had been inserted in the bill; because he had been in hopes that, on the question of raising the pay of the Army, they would, one and all, have manifested a disposition to support the rights of the country. In the hope that they would yet come to an agreement on the subject; that they could give some vote of unanimity in relation to the war, he should move for a recommitment of the bill, with a view to amend it by striking out the third section. It appeared to him that, until a man had acquired political rights, he ought not to be called on to defend his country. The gentleman from South Carolina says the principle of this section already exists in our militia laws. I admit it; and hence, I have always, when our militia laws have been under consideration, moved to strike out "eighteen" and insert "twenty-one." I hope, if we do not take recruits under twenty-one, we will alter the militia laws also, and let the country rely for its defence on those who manage its concerns. He hoped the House would consent to recommit the bill, and, in some one vote, show something like unanimity. Mr. RANDOLPH rose to speak at the same moment with Mr. MACON, but, being first seen by the SPEAKER, obtained the floor. Mr. R. said that he was extremely happy, as he did not notice his friend from North Carolina, at the time of his rising--in which case he should certainly have given way to him according to custom--that he had caught the Speaker's eye first. I was about to rise, said Mr. R., for the purpose of making a similar motion; and there are considerations on which it is unnecessary for me to dwell, and towards which I will not even hint, that render it at least as agreeable to me that the motion for recommitment should come from that respectable and weighty quarter, rather than from myself. I shall vote for it upon the same grounds which would have induced me ultimately to vote against the bill; because it contains provisions, I might say principles, unsusceptible of modification, and, in my judgment, hostile to all those principles which I have hitherto entertained, and to which it is impossible for me to give the sanction of my support. I shall not vote against the bill, for some of the reasons urged by the gentleman from Massachusetts on my right, (Mr. QUINCY,) with more of eloquence than temperance, and answered in a style not dissimilar by my worthy friend on my left, (Mr. WILLIAMS.) They both reminded me of a stroke of perhaps the only comic poet this country has produced: "The more they injured their side, The more argument they applied." The gentleman from Massachusetts touched a chord, which, he ought to have known, was that which would insure the passage of this bill; which would excite a temper that would indispose the House to listen to the still small voice of conscience and of reason. I, sir, shall vote for the recommitment of this bill, and for reasons which I am almost ashamed to urge; which I hope to be excused for adducing. They have nothing to do with the question of impressment, of maritime war, of the invasion of Canada, of Indian warfare; but, sir, they are principles which, from length of time, I am sorry to say, have grown so obsolete, like some of the older statutes of those countries of more ancient date than ourselves, that, though I am not ashamed of them, I am almost ashamed to mention them--they are those professed by the Republican party in the year 1798, which I had the honor of attempting, at least, to support in those days--the principles, as reduced to record, of the present Chief Magistrate of our country in those days. In truth, it has been insinuated, if not asserted, with much more of candor than of logical address, that the principles of the bill are those of the former friends of the gentleman from Massachusetts on my left, from which, I suppose, that gentleman has, in some way or other, deserted. This goes to prove, as far as the authority of the gentleman from Vermont and of my worthy friend from South Carolina has influence, that a long course of opposition has instilled into the gentleman something of the principles which did not belong to his friends while in power; that he is a deserter from his party, and consequently that I have remained a faithful sentinel at my post. I did not expect to hear it said, sir, that this bill was not to be opposed because a similar bill had been passed in what used to be called the Reign of Terror. In other words, I did not expect to hear it stated that the principles of the Administration of the predecessor of Jefferson, which, I suppose, he would now be as ready to recant as any man in the nation, justified the bill; that it ought to be passed, because it was fashioned in conformity to such doctrines. It is now, sir, I think, some thirteen or fourteen years ago, since a similar question was agitated on the floor of this House, and it was my lot to be compelled to sustain the same side of the question which I sustain to-day--for I will not use the qualified term, _attempt_ to sustain, against one of the proudest names in this country--against the man who now presides, I will not say with what splendor of abilities, at the head of the judicial department of our Government.[30] The House will readily agree that, plain must have been that question which could have been supported with such unequal odds; that strong must have been that side of the argument against such an advocate. It was one of those occasions on which the gentleman who then presided in the House declared "he never witnessed a more unpromising debate:" it was so--for it was one of those which tended to put that gentleman and his friends into the situation which so many of them--I will not say all--for there are some illustrious examples to the contrary--into the situation which many of them have since occupied. It was an assertion of the great fundamental principles of our Government against arbitrary, high-toned courtly notions. The party then in power had been nearly as long in office as the party now in power, and looked at the question pending before them, with a very different eye, while they wielded the sceptre, than that with which they look at the question now, when the sceptre is applied to their backs. I am sorry to say that I fear that the converse of the proposition is, in a great degree, true, and that those principles which I then supported, and which were the ground of the revolution of political sentiment in 1801 which thereafter ensued, have fallen, as it were, in abeyance; that, in fact, we have forgotten our oracle. I have said, on a former occasion, and if I were Philip, I would employ a man to say it every day, that the people of this country, if ever they lose their liberties, will do it by sacrificing some great principle of free government to temporary passion. There are certain great principles, which if they be not held inviolate at all seasons, our liberty is gone. If we give them up, it is perfectly immaterial what is the character of our Sovereign; whether he be King or President, elective or hereditary--it is perfectly immaterial what is his character--we shall be slaves--it is not an elective government which will preserve us. But I am afraid I have fallen somewhat into error, by wandering from the course I proposed. On the occasion to which I have alluded, I maintained that the provision of a bill then pending, similar to that I now object to, was arbitrary, unconstitutional and unjust, because it was in the nature of an _ex post facto_ law. It _is_ of the nature of an _ex post facto_ law--it is more--it tends to exalt the military authority over the civil--it is this or it is nothing. If the section pronounce an ambiguous voice, to be construed according to expediency, then is there so much greater reason to recommit the bill, to reduce it to some shape which shall render it intelligible to the meanest capacity. It goes to alter the nature of a remedy--to impair the obligation of a contract. A man has contracted a debt, and his creditors arrest him. He enlists. He enlists through the grates of a prison, or within the limits of prison bounds. The contract between this man and the creditor is varied by the law, because the remedy of the creditor is changed. Let us not have a descant on the cruelty of imprisonment for debt, and the expediency of introducing other provisions on that subject. That is not the question. It is on a law for exempting a particular class of men from those penalties and provisions which attach to all other classes of society. The military of all classes in society, that class which we are about to exempt from the general provisions attaching to other classes, is that of which the people of this country have been led by all our writers, by all our authorities, to entertain the most watchful and justly founded jealousy. It is on principles somewhat analogous to these, or rather the same, much better enforced, that an opposition was maintained to a law, not dissimilar in its provisions from this, in the winter of 1799-1800. In the fury and tempest of his passion, my friend from South Carolina seemed to overlook, what I thought he would be one of the last to forget, that we live in a limited Government, possessing restricted powers, which we cannot exceed. Has the constitution, with the most jealous scrutiny, defined the privileges of a member of this House, not permitting us to define our own, and made our principal privilege an exemption from arrest; and do we clothe ourselves with a power of exempting from arrest, _ad libitum_, a whole class of society--of creating a privileged order? We are, indeed, a privileged order, but we are privileged by the constitution. I ask the gentleman from South Carolina whence he derives the power of creating a privileged order, and, shall this assumption of power be attempted in favor of the military, of all other classes? In my opinion, sir, the section to which I have had reference is freighted with most fatal consequences. I will suppose a case. Suppose a man had a writ served upon him, and he afterwards enlists; that an escape warrant is taken out against him, and a contest ensues between the recruiting sergeant and the civil officer for this man, and that the civil authority supports its officer by calling out the force at its disposal. What would be the upshot? What is it to lead to? I need not state the consequences. These principles, sir, were urged thirteen years ago; they are urged now, in the same place, and on the same occasion. I cannot consent, in deference to any gentlemen, however great their zeal, to admit that I merely urged them at that time, from party views, to put down one description of persons in order to get into their warm berths. I cannot consent to such an admission, and, therefore, cannot give my support to any bill which contains such provisions. I have said this will be an _ex post facto_ law. It is so; it operates not only after the right has accrued to the creditor to sue out his writ, but after it is in a course of execution. Let me put another case. Suppose that Congress were to pass a law that every malefactor under the sentence of death, who enlisted in the Army, should not have the sentence of the law executed on his body. Have you not as good a right to do that as to pass this law? Would you consent to see a scuffle at the gallows between the civil authority and the military for the body of that wretch? I will put another case, sir. A son, who is the only support of a widowed and aged mother, in some moment of hilarity, perhaps of intoxication, led astray by the phantom Glory, enlists in the army of the United States. I speak of one who is a minor. Although I know that freemen of this country cannot be property in the sense in which a slave is property, yet, I do allow that the mother has a property in the time of that child; that he is under an obligation from which no human law can absolve him--an obligation imposed upon him by the maternal throes that issued him into life--by the nourishment drawn from the parent's breast--by the cherishing hand which fostered him through imbecility and infancy. You have not a right to take him--I hope, then, sir, that no question will be made of your power. I put another case, said Mr. R. Although an apprentice and a minor are not property in the sense in which a slave is property, there is a class of men, unluckily, in certain parts of our country (in Philadelphia, for instance--I mean that class called "redemptioners,") who were sold but yesterday in the markets of that city. Is the gentleman who represents that district (Mr. SEYBERT) willing that they shall absolve themselves from their contract by enlisting in the Army? If he is, I am. A redemptioner sold in Philadelphia for a term of years, bought in the market as fairly as any other commodity--(I say fairly, because bought with his own consent, and as he believes, for his own advantage)--such a person, if tempted to enlist, will, unquestionably, prefer the pay and emolument of the soldier in your Army to his present situation. With regard to apprentices, I very much fear, sir, that those who enlist will, for the greater part, be of that description for whom their masters have advertised six cents reward, and forewarned all persons from harboring them. I remember, when a small boy, to have seen a series of prints by Hogarth, called "The Progress of Industry and Idleness." The gradations were not more regular than natural. The one ends with wealth, honor, and an eligible matrimonial connection with the daughter of his master, with whom he had been admitted into partnership; the other is brought up by the gibbet. Their names were Thomas Idle and William Goodchild. I believe, sir, that more of the Thomas Idles than of any other will enlist under this law, and I sincerely hope they will; for I very much fear that even William Goodchild, after he has gone through the discipline of a camp for five years, will be utterly unfit for any other species of employment. This is not all. There are other considerations, which I forbear to touch--which, I should have supposed, would have brought themselves home to the bosom of every gentleman in this House. Personal indisposition has prevented my attendance in this House, and I did not hear of this bill until last night. It was then mentioned to me by one who is fast in the old faith, and has often brought the House to a recollection of good old principles; and I did hope that they would this day have received more strenuous aid from that quarter than they have. I hope the House will refuse to pass the bill, if it were only to show that there is some one act of the Administration of 1799-1800, which the present possessors of power have not copied from their statute book. There remains only this, and the eight per cent. stock loan--and we are saved from the latter only by the infractions of that law, which we imperiously refused at the last session to repeal. It is the infractions of this law which has poured money into our coffers, and saved us from the disgrace of an eight per cent. loan. There is another part of this bill which strikes me as being inexpedient; but, as I do not wish to blend considerations of expediency with those of great and vital principles, I shall waive any thing on that head. The question was then taken on the motion to recommit the bill, and lost. For recommitment 42, against it 62. The question was then taken that the said bill do pass; and resolved in the affirmative--yeas 64, nays 37. MONDAY, November 23. _Proposed new State._ On motion of Mr. POINDEXTER, the House resolved itself into a Committee of the Whole, on the bill to authorize the people of Mississippi Territory to form a constitution and State Government, and for the admission of the same into the Union. Mr. RICHARDSON moved to strike out the first section of the bill. This motion was supported by Mr. PITKIN, principally on the ground of the inexpediency on general principle, of giving to a Territory embracing a population of only twenty or thirty thousand souls, a representation in the Senate equal to that possessed by other States, some of which contained a million of inhabitants. Another objection was, that the bill proposed to incorporate within a State the town and citadel of Mobile, now in possession of a foreign power; and thus make it the duty of a State to expel from its territory a force which the President had not thought fit to remove. The motion was opposed by Mr. POINDEXTER, who contended that the population of the Territory was much greater than was represented; and even if it were not what it is, that a precedent was to be found in the incorporation of Ohio and of Louisiana. He represented in glowing terms, the anxiety of the people of the Territory to be enabled to bear their share of the expense as well as the dangers of the present war in support of our just rights; in which cause they had already employed twelve hundred militia, which the gentleman could not say of the populous State he represented; and if that were not enough, they were ready to put a bayonet into the hands of every man in the Territory capable of bearing arms. As to the occupancy of Mobile by the Spaniards, it was not a valid objection; but if it were, he said he hoped it would soon be invalidated; he trusted that the spirit of the country would aid the disposition of the Executive to repel every foreign enemy from our territories. The motion to strike out the first section was negatived, yeas 24. After some amendment to the bill, the committee rose and reported it to the House. Mr. PITKIN renewed the motion to strike out the first section of the bill; which was negatived by a large majority. The bill was then ordered to be engrossed for a third reading. TUESDAY, November, 24. _Mississippi Territory._ An engrossed bill to enable the people of the Mississippi Territory to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, was read the third time; and, on the question that the same do pass, it passed in the affirmative--yeas 63, nays 39. WEDNESDAY, November 25. _Constitution and Guerriere._ Mr. BASSETT communicated to the House the following documents: NAVY DEPARTMENT, _Nov. 21, 1812_. SIR: In order to enable the committee to form a satisfactory opinion as to the compensation to be provided for the officers and crew of the frigate Constitution, for the capture and subsequent destruction of the British frigate the Guerriere, I have the honor to state to you that the Constitution rated 44, and mounted 55 guns; that the Guerriere rated 38 and mounted 54 guns. The Guerriere, although entirely dismasted, and in other respects much crippled, could have been brought into port without incurring any other risk than that of recapture; but Captain Hull conceived that if he had manned the Guerriere for the purpose of sending her into port, he would have so far reduced the crew of the Constitution that he might have subjected both vessels to capture. He presumed that, under all circumstances, it would be better for him to destroy the Guerriere, and preserve the force of the Constitution unimpaired, and his having done so unquestionably proceeded from the most patriotic considerations. The Guerriere was a frigate of the first class in the British navy; and, no doubt, when the engagement between the Constitution and her commenced, she was completely fitted in all respects for the most serious service. The cost of such a ship, independently of her stores, could not have been less than two hundred thousand dollars, and her stores were worth, in all probability, fifty thousand dollars at least; besides, she had on board a number of prize goods, the value of which cannot be ascertained; but was probably equal to fifty thousand dollars more. So that the whole value of the Guerriere, her stores and prize goods, at the time the action commenced, may fairly be estimated at three hundred thousand dollars. Had Captain Hull have incurred the risk before mentioned, and succeeded in getting the Guerriere into port, the officers and crew of the Constitution, considering the Guerriere as her equal, would have been entitled to the whole of the Guerriere, her stores and prize goods. Sooner, however, than run the risk of losing the Constitution, he determined to destroy the whole. The question then arises, what, under these circumstances, ought the officers and crew to be allowed? For my own part, I have no hesitation in giving it as my opinion that the sum of one hundred thousand dollars would not be too liberal a provision, or too great an encouragement for the great gallantry, skill, and sacrifice of interest displayed on this occasion; and I am persuaded that, if such a provision were made, the difficulties of manning our frigates, at present experienced, would vanish. It may further be remarked, that Captain Hull, while on the cruise, on which he captured and destroyed the Guerriere, burnt two enemy's vessels, viz: the brig Lady Warren and the brig Adeora, and obliged the enemy to burn the brig Dolphin, with a cargo of hemp and Russia goods, and to abandon an English barque laden with timber: for no part of which have the officers or crew of the Constitution received any compensation. I have the honor to be, with great respect, sir, your obedient servant, PAUL HAMILTON. Hon. B. BASSETT. WASHINGTON, _Nov. 23, 1812_. SIR: In compliance with your request, I have the honor to state to you that my opinion, as to the value of the Guerriere, at the time the action between her and the Constitution commenced, is, that, exclusively of her stores and prize goods, she was probably worth two hundred thousand dollars; and my impression is, that her stores and prize goods must have been worth one hundred thousand dollars. I am informed that, independently of their stores, the frigate President cost two hundred and twenty thousand dollars; that the Chesapeake cost two hundred and twenty thousand dollars; and that the Congress cost one hundred and ninety-seven thousand dollars. These vessels were certainly built on good terms; and it is from their cost that I form my idea as to the probable value of the Guerriere; and my impression as to the value of her stores and prize goods is derived from personal observation and information obtained on the occasion from different persons. I have the honor to be, very respectfully, sir, your obedient servant, ISAAC HULL. Hon. BURWELL BASSETT, _Chairman, &c._ _Medals and Prize Money._ On motion of Mr. BASSETT, the House resolved itself into a Committee of the Whole, on the report of the Naval Committee on the proposed vote of a gold medal to Captain Isaac Hull, late commander of the frigate Constitution, and silver medals to the other officers, and a sum of ---- thousand dollars, to be distributed as prize-money among the officers and crew, as an expression of the sense entertained by this House of their bravery and conduct in attacking and vanquishing the British frigate Guerriere. Mr. BASSETT spoke in support of the resolution. He stated the magnitude of the achievement; the amount of value of the capture; and assigned many reasons particularly in favor of the donation to the officers and crew, on whom collectively he proposed to bestow the sum of $100,000, and made a motion to that effect. He said the prize money arising from the capture, had not the public service required the destruction of the Guerriere, would have amounted to much more; and the merits of those concerned in the capture entitled them to this remuneration. He dilated on the present low price of wages on board our public ships, and adverted to the seaman's hardships and the seaman's risk, &c. The question on filling up the blank with "one hundred thousand dollars," was then taken, and decided in the affirmative--50 to 37. The committee rose and reported their agreement to the resolution. FRIDAY, November 27. A new member to wit, from Georgia, WILLIAM BARNETT, returned to serve as a member of this House, in the place of Howell Cobb, resigned, appeared, was qualified, and took his seat. TUESDAY, December 1. _Naturalization Laws._ On motion of Mr. LACOCK, the House resumed the consideration of the bill supplementary to the naturalization laws. On motion of Mr. LACOCK, the bill was amended by adding thereto the following additional section: "_And be it further enacted_, That every naturalized citizen of the United States, or the Territories thereof, shall forfeit such citizenship on his voluntarily departing from and remaining out of the United States for and during the term of two years." On motion of Mr. FITCH, the following other section was also incorporated in the bill: "_And be it further enacted_, That all persons who shall have been naturalized subsequent to the 18th day of June last, shall be entitled to all the rights and privileges of citizens of the United States, from the date of such naturalization, any thing in the declaration of war against Great Britain, or any other act, to the contrary notwithstanding." Mr. FISK moved to strike out _nine_ months, the time allowed to citizens to take the benefit of our naturalization laws, and insert _three_. He said he could not see why so long a time should be allowed. The longest time extended to our citizens in Canada is thirty days; and he did not see why so much more liberality should be extended to their citizens here. He was opposed to their remaining here longer than necessary, the more especially as they employed themselves in exciting divisions, and fomenting the party feuds which now agitate the country. Mr. LACOCK thought the time proposed was too short; that in some districts they could scarcely hear of the law within that time, and at any rate might not be able to meet with a tribunal, at which to comply with the requisites of the naturalization law, before the expiration of that period. Mr. FISK withdrew his motion for the present. THURSDAY, December 3. SHADRACK BOND, returned to serve as a delegate, in this House, for the Illinois Territory, appeared, was qualified, and took his seat. SATURDAY, December 5. _Privateer Captures._ Mr. MCKIM presented a petition of Commodore Joshua Barney, on behalf of himself and the owners, officers, and crews, of sundry private armed vessels of war, "praying to be considered as claimants to all property proven to be enemy's property, found on board of vessels sailing under the American flag, having on board British manufactured goods, coming from Great Britain to the United States, and under the protection of British licenses, which have been captured by them, or that they may participate as '_informers_' in the seizure and condemnation of the said property under the non-importation."--Referred to the Committee of Ways and Means. MONDAY, December 7. Another member, to wit, from Virginia, EDWIN GRAY, appeared, and took his seat. TUESDAY, December 8. Another member, viz: from Virginia, WILLIAM A. BURWELL, appeared, and took his seat. WEDNESDAY, December 9. _Imprisonment of American Seamen._ Mr. BASSETT offered to the House the following resolution: Whereas, It is represented, that Great Britain has seized sundry persons fighting under the American flag, laying claims to them alike incompatible with justice and the rights of the United States as an independent nation: _Resolved_, That the President be requested to lay before this House the information he has received on that subject, and the measures taken to redress an evil which violates the rights and interests, and outrages the feelings of a free and independent people. Mr. BASSETT stated that several cases had come to his knowledge in which the British naval commanders had seized persons taken on board of American armed vessels, and confined them, in one instance, in irons, and in another had transported them to England for trial. It was not his intention now to go into an examination of these cases. Such an examination was not necessary to authorize the House to call for the information required. He had given its present form to the motion he had offered, because its adoption would go to show that the councils of the nation were not indifferent to this subject. It would, he trusted, further enable the Executive to show that it never slumbered on any occasion in which the rights of the people were concerned; and he had no doubt the information to be received would show it. When it was received, the House might take what course it pleased; perhaps no legislative act would grow out of it. But it was proper, in any event, that the House should be in possession of information required. Mr. MILNOR said he had no objection to the call for information, but he excepted to the form of the resolution, for two reasons. It was prefaced by a preamble, which was not usual in such cases, which preamble, moreover, assumed as fact circumstances of which the House had no official or authentic information. His other objection was, that it expressed an opinion on a point on which he was not ready to express one. Mr. M. said he knew not the extent of the evil of which the gentleman complained. If it was merely that Great Britain laid claim to her own subjects fighting our battles against her, he would at least not say that this was an act on the part of Great Britain deserving all those severe epithets which the gentleman had thought proper to attach to it. The resolution stated facts not before the House, and expressed an opinion on an act the degree of enormity of which depended on the circumstances respecting which it was proposed to ask for information. Mr. M. wished that the House should not lightly be compelled into a discussion of this subject, and especially as the gentleman had intimated the probability that no legislative act was to grow out of the information called for. Mr. SEYBERT said, as his colleague's principal objection to the motion appeared to be a difficulty as to facts, he hoped to procure his vote for its adoption by stating at least one which had come to his knowledge. I, said Mr. S., had the honor to have a nephew on board the ship Wasp. He informed me this morning that after they had been carried into Bermuda, several of their crew were taken and confined in irons; that he saw them in that situation; and that their crime was, having fought the battles of our country. What may be my colleague's feelings on this occasion, I know not--I hope they are honorable to himself and the House--for myself I wish the subject investigated. Mr. S. concluded by expressing his hope that the resolution would pass. Mr. MACON said he was anxious to obtain information on this subject, but doubted the propriety of the preamble. After the information was received, it would be time enough to express an opinion on the subject. He had no doubt that we must at last come to the determination to protect every man that is on board of a ship of the United States. It is what Great Britain herself does; and in this respect we ought to follow her example. If these people undertake to fight our battles, we ought to protect them. Mr. M. said he was opposed to the preamble, because he did not wish to give reasons to the departments of the Government for any call for information the House thought proper to make; it was enough that the House should ask for it, and the President should give or withhold it. The practice heretofore was against the course now pursued. Mr. BIGELOW said he had no objection to the call for information, divested of the preamble and the opinion expressed in it, except that it did not go far enough. He proposed to amend it by adding thereto the following words, "accompanied with all the evidence in his possession, which will tend to show whether such persons are American citizens or British subjects." Mr. BASSETT said he was indifferent as to the form, provided he obtained the substance; he, therefore, should submit to such modification as the gentleman from North Carolina should think proper to make. But, said Mr. B., as it has been said that there is no information before the House, I state that I understand, and it is my belief, that six men of the crew of the United States brig Nautilus were detained and sent to England for trial; and that Commodore Rodgers had detained as hostages for their safety twelve British subjects. I state also to the House that I understand and believe that six seamen of another armed vessel have been detained, and that General Pinckney had detained a like number of British subjects. I state that I have received information that the boatswain of the Wasp had been put in irons after she was taken. These violations of humanity and the law of nations I believe to require retaliation. When I voted against a bill on this subject (Mr. WRIGHT'S) it was not because I was opposed to retaliation. No, sir; retaliation in war is often mercy--it puts an end to those cruelties which would otherwise frequently disgrace parties at war, and is indispensable in the conduct of hostilities. Mr. B. having withdrawn his motion, it was substituted by the following, offered by Mr. MACON: "_Resolved_, That the President of the United States be requested to cause to be laid before this House any information which may be in his possession touching the conduct of British officers towards persons taken in American armed ships." Mr. RANDOLPH said he trusted that the resolution now before the House would meet with no objection; although against the resolution as first proposed, he must have voted for it, notwithstanding all the odium which might have attached to such a vote. He hoped, he said, that rigorous retaliation would take place if our countrymen found in arms had been treated as criminals and not as prisoners of war. He hoped we should have ample atonement for every drop of American blood which should be spilt in such manner. Having taken occasion to pay a handsome compliment to the gallantry of our Navy, which was not heard with sufficient distinctness to be reported, Mr. R. concluded by hoping there would be no objection to the resolution. Mr. MILNOR said he thought it due to the gentleman from Virginia (Mr. BASSETT) to state that, owing to the noise which prevailed in the House, he had not before heard the statement which the gentleman had now been kind enough to make. He had heard of no such case as that alluded to by his colleague; but he trusted he had been sufficiently guarded not to commit himself, even to the most invidious construction, as opposed to a proper investigation of this subject. To the present motion he yielded his perfect acquiescence. Mr. M. said he trusted that in any thing that related to the honor of the country in the contest in which we are now engaged, whatever might have been his opinion of the propriety of entering into it, he should not be found more backward than other gentlemen in sustaining the just rights of the nation. Mr. SHEFFEY said, if American citizens had been treated in the manner represented, he was clearly of opinion that severe retaliation ought to follow. But did gentlemen pretend that a British subject, running away from a British vessel, and found on board of one of ours, was to be considered as entitled to be treated as a prisoner of war? Could this doctrine be asserted by any gentleman? He presumed not. The resolution, as it now stood, would not elicit the facts material as to this point. He, therefore, moved to amend it, by inserting, after the word "persons," the words "other than British subjects." Mr. SEYBERT said he was happy to hear the declaration last made by his colleague, (Mr. MILNOR.) He hoped the amendment first offered would be rejected with disdain. [The SPEAKER declared that such language was not proper in debate, the expression being too strong, and such as sometimes led to a personal altercation, always to be avoided.] Mr. S. thanked the Speaker for his caution; he meant no personality; but he thought it did not become this House to debate whether the persons in question were British subjects or not, when they had been put in irons for fighting the battles of the country. Let the proof rest on the aggressor on national law and the violator of the rules of war. He hoped the House would without hesitation reject the amendment. I may go too far, said he, by stating too much; but I will say thus much without risk of contradiction: that the boatswain of the Wasp, a warrant officer of the United States, had been twelve years within the United States and has a wife and children here. These, I hope, are sufficient characteristics to insure him our support: I will give him mine, and have no doubt the House will do the same. Mr. RANDOLPH said that the proposed amendment brought strongly to view the impropriety of the House, on the rude suggestions of any member, committing itself hastily by a definite determination which to-morrow they might be disposed to retract. He believed this was one of those cases in which there was no necessity for haste. The House would be as competent to-morrow, to decide on the subject of the resolution and the proposed amendment, and in a manner to redound, at least, as much to the credit of the House and the national good, as now. With regard to his own opinions, if they were of any importance with his worthy colleague, he would at once say they were on this subject the opinions of that man, from whom he never did dissent but upon one question, without being wrong--that man who was emphatically called for eight years our Commander-in-chief--the founder of this nation--the author of the constitution--our first President--the man who was made for the office, and the office for him--the man who discharged all its duties so perfectly, as if it had been only to show those who come after him their incompetency. Mr. R. said he would ask his worthy colleague, what he supposed would have been the fate of a certain Benedict Arnold, had he been brought alive to the American camp, after his desertion from it? On that subject there can be but one opinion. On another question, if his opinion was of any value, he would state it. It was not a loose thought, taken upon the impulse of the moment; but the result of meditation and reflection. As long as foreigners, naturalized by our laws, remain on our soil, he was ready to throw over them the mantle of the constitution--he would protect them, as he would protect the native citizen, at the hazard of the last shilling of the public revenue, and the last drop of the blood of our people. But, when they go abroad on the high seas; when they come to this country to acquire a neutrality of character, now indeed no longer to be found here; when they come here only to neutralize goods in the Baltic, at Heligoland, in the Black Sea, the White Sea, and the Red Sea, and the passing to and fro on the highway of nations; if it please God, their old master George the Third, or Napoleon, or Alexander of Russia, should lay his hand on them, they were welcome, Mr. R. said, for him. He would not spend one shilling, one drop of American blood, to redeem such a man; much less would he have retaliation executed on subjects of the nation claiming him, with whom we should happen to come in collision, which might have to be expiated by the native blood of these States. I would not, said Mr. R., have the New England man or old Virginian executed by any despot, limited or unlimited in authority, in order to secure to us the worthless property in the man who is a Christian in Christendom and a Mussulman in Turkey. But, Mr. R. asked, did not this question assume a different shape, when this man was not going to and fro on the high seas in search of plunder, which he calls patriotism, but, when he is found in a public ship of war of the United States? On that subject--for it was a new question--he was not prepared to decide. It was not, Mr. R. said, and the House might rely on it, the sentiment of the people of these States--it might be of some comparatively small, and therefore only insignificant section of the community--that we should enter into a contestation with France and England for property in their subjects. Mr. R. here drew a comparison between the practice of harboring slaves in some of our Northern cities, Philadelphia for instance, and the countenance given in this country to European emigrants. As to these foreigners, Mr. R. said he owed them nothing. He was sorry they had ever found refuge here--he wished he had driven them from our shores--or have permitted, as we have the merchants, to go out where they pleased, without attempting to protect them. Mr. QUINCY rose, he said, simply to express his regret, that a debate in this form and manner should have arisen. The question which had been touched, was one which required all the information and light which could be shed on it. The principles connected with it were so numerous and critical, that it required all the reflection of which gentlemen were capable, to enable them to discuss and decide it in a proper manner. He rose also to express his regret that a motion for amendment should be made by a gentleman with whom he frequently coincided in opinion, which went to exclude information of the manner in which officers treated persons other than British subjects. He could not vote against receiving information of any kind--particularly on a subject so interesting. Mr. Q. was proceeding in his remarks, when-- Mr. SHEFFEY withdrew his motion. Mr. BASSETT explained his ideas of expatriation. He would not protect the man who had left the country with an intention not to return, &c., but he would protect the man who went out to fight the battles of the country. Mr. RANDOLPH rose for the purpose of moving an amendment. He adverted to the language of the resolution, and drew a distinction between the character of privateers and of our public armed vessels. Was it competent, he asked, to the Government to receive as testimony the statement of the commander or crew of an American corsair? It was well known, too, he remarked, that the high wages which had been paid to the crews of the privateers, was one of the reasons why the American Navy was in some degree unmanned. And, was it not a different question, whether we should interpose our authority between the subject of a foreign nation and his Government, when that subject is fighting your battles, bleeding on the deck of your public ship, at twelve dollars a month, and when he is decoyed into a corsair by the temptation of eighty, fifty, or forty dollars a month? There is a difference, sir, said Mr. R. I trust, said he, if we receive the information we are about to ask, we shall get it from a pure and authorized source, such as no man can question. I mean the commanders of our public ships of war. Mr. R. concluded by moving to strike out "American," and insert "public," so as to read "public armed ships." Mr. WIDGERY expressed his surprise at the various expedients resorted to, to embarrass this question; and hoped this would have the same fate as the other. He said he could tell the gentleman that many privateers had been manned without a cent of wages. But, suppose they had been manned in other ways, were not privateers as useful in annoying the enemy as public ships? No man that knew any thing about maritime affairs would deny it. Whereever our privateers had come across an armed vessel of the enemy, of any thing like equal force, they had done their duty like American tars. We are at war, Mr. W. said, and ought to check the enemy wherever we come in contact with them. He believed the privateering carried on had been of great advantage to us and injury to our enemy. As to the objection which had been offered to receiving the statement of their commanders, what were gentlemen afraid of? No disparagement to the commanders of the navy, (for he respected them all,) he knew gentlemen commanding privateers whose opinions were entitled to as great respect as that of any other, and whose word could not be questioned. In relation to the cases referred to in the resolve, particularly that of the boatswain, Mr. W. said we were bound by every principle of the law of nations to support him to the last cent of our money, more especially as he had a warrant under the seal of the United States. The conduct of our enemy was the less justifiable, as she manned her own ships with people of all nations. Mr. RANDOLPH'S proposed amendment was negatived by a large majority; and the resolution was agreed to without further debate or opposition. FRIDAY, December 11. _Macedonian and Frolic._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I transmit to Congress copies of a letter to the Secretary of the Navy, from Captain Decatur, of the frigate "United States," reporting his combat and capture of the British frigate Macedonian. Too much praise cannot be bestowed on that officer and his companions on board, for the consummate skill and conspicuous valor by which this trophy has been added to the naval arms of the United States. I transmit, also, a letter from Captain Jones, who commanded the sloop-of-war Wasp, reporting his capture of the British sloop-of-war, the Frolic, after a close action, in which other brilliant titles will be seen to the public admiration and praise. A nation feeling what it owes to itself and to its citizens could never abandon to arbitrary violence on the ocean, a class of them which gives such examples of capacity and courage, in defending their rights on that element; examples which ought to impress on the enemy, however brave and powerful, a preference of justice and peace, to hostility against a country whose prosperous career may be accelerated, but cannot be prevented, by the assaults made on it. JAMES MADISON. WASHINGTON, December 11, 1812. U. S. SHIP UNITED STATES, AT SEA. October 30, 1812. SIR: I have the honor to inform you that, on the 25th instant, being in the latitude 29° north, longitude 29° 30' west, we fell in with, and, after an action of one hour and a half, captured His Britannic Majesty's ship Macedonian, commanded by Captain John Carden, and mounting forty-nine carriage guns, (the odd gun shifting.) She is a frigate of the largest class, two years old, four months out of the dock, and reputed one of the best sailers in the British service. The enemy being to windward, had the advantage of engaging us at his own distance; which was so great that, for the first half hour, we did not use our carronades, and at no moment was he within the complete effect of our musketry or grape. To this circumstance, and a heavy swell which was on at the time, I ascribe the unusual length of the action. The enthusiasm of every officer, seaman, and marine, on board this ship, on discovering the enemy, their steady conduct in battle, and the precision of their fire, could not be surpassed. Where all have met my fullest expectations it would be unjust in me to discriminate. Permit me, however, to recommend to your particular notice my first lieutenant, William H. Allen; he has served with me upwards of five years, and to his unremitted exertions in disciplining the crew is to be imputed the obvious superiority of our gunnery exhibited in the result of this contest. Subjoined is a list of the killed and wounded on both sides. Our loss, compared with that of the enemy, will appear small. Among our wounded you will observe the name of Lieutenant Funk, who died a few hours after the action; he was an officer of great gallantry and promise, and the service sustained a severe loss in his death. The Macedonian lost her mizzenmast, fore and main-topmasts, and main-yard, and was much cut up in her hull. The damage sustained by this ship was not such as to render her return into port necessary; and had I not deemed it important that we should see our prize in, should have continued our cruise. With the highest consideration and respect, I am, sir, your obedient humble servant. STEPHEN DECATUR. Hon. PAUL HAMILTON. _List of killed and wounded on board the United States._ Thomas Brown, New York, seaman; Henry Shepherd, Philadelphia, seaman; William Murray, Boston, boy; Michael O'Donnel, New York, private marine; John Roberts, private marine--_killed_. John Mercer Funk, Philadelphia, lieutenant, (since dead;) John Archibald, New York, carpenter's crew; Christian Clark, ditto, seaman; George Christopher, ditto, ordinary seaman; George Mahar, ditto ditto; William James, ditto ditto; John Lawton, ditto, private marine--_wounded_. On board the Macedonian there were thirty-six killed, and sixty-eight wounded; among the former, were the boatswain, one master's mate, and the schoolmaster; and of the latter were the first and third lieutenants, one master's mate, and two midshipmen. NEW YORK, _November 24, 1812_. SIR: I here avail myself of the first opportunity of informing you of occurrences of our cruise, which terminated in the capture of the Wasp, on the 18th of October, by the Poictiers, of seventy-four guns, while a wreck from damages received in the engagement with the British sloop-of-war Frolic, of twenty-two guns, sixteen of them thirty-two-pound carronades, four twelve-pounders on the main deck, and two twelve-pound carronades on the top-gallant forecastle; making her superior in force to us by four twelve-pounders. The Frolic had struck to us, and was taken possession of two hours before our surrendering to the Poictiers. We had left the Delaware on the 13th; the 16th had a heavy gale, in which we lost our jib-boom and two men; half-past eleven on the night of the 17th, in latitude 37 degrees north, and longitude 65 degrees west, we saw several sail, two of them appearing very large; we stood for them for some time, then shortened sail, and steered the remainder of the night the course we had perceived them on. At daylight, on Sunday the 18th, we saw them ahead; gave chase, and soon discovered them to be a convoy of six sail, under the protection of a sloop-of-war; four of them large ships, mounting from sixteen to eighteen guns. At thirty-two minutes past eleven A. M., we engaged the sloop-of-war, having first received her fire at the distance of fifty or sixty yards, which space we gradually lessened until we laid her on board, after a well-supported fire of forty-three minutes; and although so near, while loading our last broadside, that our rammers were shoved against the side of the enemy, our men exhibited the same alacrity which they had done during the whole of the action. They immediately surrendered upon our gaining their forecastle, so that no loss was sustained on their side after boarding. Our maintop-mast was shot away between four and five minutes from the commencement of the firing, and falling, together with the maintopsail-yard, across the larboard fore and fore-topsail braces, rendered our head-yards unmanageable the remainder of the action. At eight minutes, the gaff and mizzen topgallant-mast came down, and at twenty minutes from the beginning of the action every brace and most of the rigging was shot away. A few minutes after separating from the Frolic both her masts fell upon deck; the main-mast going close by the deck, and the foremast going twelve or fifteen feet above it. The courage and exertions of the officers and crew fully answered my expectations and wishes. Lieutenant Biddle's active conduct contributed much to our success, by the exact attention paid to every department during the engagement, and the animating example he afforded the crew by his intrepidity. Lieutenants Rogers, Booth, and Mr. Rapp, showed, by incessant fire from their divisions, that they were not to be surpassed in resolution or skill. Mr. Knight, and every other officer, acted with a courage and promptitude highly honorable, and I trust have given assurance that they may be relied on whenever their services may be required. I could not ascertain the exact loss of the enemy, as many of the dead lay buried under the masts and spars that had fallen on deck, which two hours' exertion had not sufficiently removed. Mr. Biddle, who had charge of the Frolic, states that, from what he saw, and from information from the officers, the number killed must have been about thirty, and that of the wounded about forty or fifty; of the killed, is her first lieutenant and sailing-master; of the wounded, Captain Winyates, and the second lieutenant. We had five killed and five wounded, as per list: the wounded are recovering. Lieutenant Claxton, who was confined by sickness, left his bed a little previous to the engagement, and though too weak to be at his division, remained on deck, and showed, by his composed manner of noting its incidents, that we had lost by his illness the services of a brave officer. I am, respectfully, &c. JACOB JONES. Hon. PAUL HAMILTON. The Message and documents having been read-- On motion of Mr. RANDOLPH, they were referred to the Committee on Naval Affairs, with instructions to report a suitable expression of the Legislative approbation of the services detailed. Mr. R. said he did not wish by this motion to limit the committee to reporting a resolution; or to preclude them from expressing approbation in a more substantial manner. WEDNESDAY, December 16. _Navy of the United States._ The House resolved itself into a Committee of the Whole, on the bill from the Senate, which had been previously twice read in the House. Mr. SAWYER made a motion to add the word "teen" to "four," so as to make it fourteen 74 gun ships. Mr. S. thought it a proper occasion to try the question whether we were to have a navy or not. He took the occasion to congratulate the House upon the repeated victories of our little navy over the enemy; and of the grateful prospect of a speedy termination to the despotism of the seas. National piracy is about to be exterminated, and all nations permitted to traverse their great highway in safety. The thing can be done; and if we say so, with the will of God, will be done. The experiment upon which the proof hangs has been made. British arms cannot withstand American upon the sea. The bully has been disgraced by an infant; and fear shall no longer restrain an abject world from vindicating its long violated rights. Give us but a respectable fleet, and it is all we ask. But what can we do with four seventy-fours? They are a mere mockery. If we do mean to make a serious stand upon the ocean, such a force must be out of all character. If we mean merely to annoy her trade, (and he trusted we meant more,) frigates will do; but, to make any serious impression that way, we must have a respectable fleet; at least, in his opinion, fourteen sail-of-the-line. That would give us a preponderance on our own coast, and enable us to bring in our prizes with safety. Who can bear the idea of our being obliged to burn or sink all the ships we may take away from the enemy, for fear of their being recaptured? He thought we should save enough by the protection they would afford to our prizes to support the expense of them. We can easily support such a force. The expense, distributed over our widely-extended population, would be less than a dollar a head; and, where is the American who would grudge such a sum for such an object? The people, I am confident, will cheerfully pay it, because we are now at war, and a navy is found the most efficient weapon in our hands against the enemy. He therefore trusted that if it was the disposition of the House to have a navy, they would establish such a one as would answer some purpose. Mr. SEYBERT said he did not anticipate that the bill from the Senate would have been called for to-day by the Chairman of the Naval Committee; notwithstanding he had bestowed some attention on the subject, he confessed his remarks would be made in a manner not entirely satisfactory to himself; he would, however, proceed with them. Mr. Chairman, said he, I wish it was as easy to build, equip, and man the seventy-fours, as it will be to add the word "teen" to "four," as is proposed by the gentleman from North Carolina. So far from adding to the number of these ships, contemplated by the bill, he had intended to move that no seventy-four gun ships should be, at this time, authorized by the Legislature. On a former occasion, Mr. S. continued, when a naval establishment was the subject under consideration, he stated at length his reasons for opposing the propositions before the House. The opinions which he then advanced concerning an extensively permanent naval establishment for the United States were still believed to be well grounded. He did not hesitate to declare his intention, at this time, and under the pressure of present circumstances, to yield much to general feelings, and the sentiments of the nation; nevertheless, he should guard against being carried too far by the current of popular opinion. It is equally my duty, said he, to keep in view what is conceived to be the permanent and vital national interest. He declared a uniform opposition to that establishment, which could not be brought within the means and resources of the nation to maintain it. We have made war, said he, to guarantee the honor and independence of the nation, as well as for the support of the just rights of our citizens; with these objects in view, he had consented to authorize a regular force of 25,000 men, and advocated one more numerous, though in principle he was opposed to standing armies. If, then, a great portion of my fellow-citizens deem an increase of the Naval Establishment essential to promote the great work, why should it be refused on my part? No opposition would be made by him to the principle or spirit of the bill before the House, though, he confessed, he did not approve the provisions as to the kind of force therein contemplated. Mr. S. continued.--At this time our principal object should be, to authorize that species of force which can be furnished in the shortest period, and which promises to be the most efficient in the present contest. If the views of the Government were not now confined to the present war, he considered it inexpedient to build public ships. It was necessary that the revenue should be cautiously applied. If it be employed so as to carry on the war with vigor, he would not shrink from any appropriation which could tend to produce that effect; by protracting the contest for the want of means, expense will be accumulated, and we should achieve nothing. Mr. S. would not assent to an increase of the navy, with a view to reconcile other measures to the opposition--to him that vote promised no such result. Our political opponents, continued he, will tell us, as regards the navy, you are doing right to add to it; thus far we will go with you; we always maintained this to be the proper course; as to your golden dreams in Canada, we will abandon them to yourselves exclusively. Such were his present impressions; it would gratify him to find himself to have been mistaken. He declared his intention to oppose the building of 74's, or double-decked ships, and to advocate a greater number of the largest class frigates. If, however, his statements should not prove satisfactory to the House, he declared the failure would not induce him ultimately to vote against that species of force which a majority might deem expedient. If, said Mr. S., the great reason for now laying the keels of the double-decked ships, be (as was lately acknowledged elsewhere by high authority) to test the intentions of the legislature as to a permanent naval establishment, he, for one, declared, he would not thus be tested, nor could he be thereby induced to vote in favor of the proposition; he would always be governed by circumstances. The declaration of the committee, that it was proper to meet "like with like," or, in other words, because the British have seventy-four gun ships, the United States should have them of the same class, would have no effect on him. We might as well say, because there are ships in the British service, which carry one hundred and twenty guns, we should also have such. This reasoning is fallacious. No one has attempted to advocate the latter proposition. Admitting that you had four seventy-four gun ships on your navy list, he maintained, they would answer no good purpose. In the course of the following year, their number will be more than doubled and trebled on the part of the enemy. The consequence would be, that your most expensive ships must either combat under very unpromising circumstances, or they would be blockaded in your harbors, and then be worse than useless; they must be kept at a heavy expense, and their crews would deprive other ships of the men necessary for their equipment. He said, the opinions which he had just advanced were not the result of idle speculations at the fireside; they were supported by intelligent commanders, and rested upon the firm base of experience; they were confirmed by the conversations of some whose splendid achievements adorned the pages of our Revolutionary history, and by others, who rank as heroes of the present war. He asked, why need we resort to other authority, when that of the head of the Naval Department can be brought to bear testimony in favor of the propositions laid down? In the year 1798, the Secretary of the Navy informed the House that twelve seventy-fours, as many frigates, and twenty or thirty smaller vessels, "would probably be found sufficient to insure our future peace with the nations of Europe." In 1811, it was declared that, "twelve sail of seventy-fours and twenty well-constructed frigates, with our smaller vessels," were necessary to annoy the commerce of the enemy, and guard our coasts. To this he added that, in the year 1811, during a state of peace with the United States, the British had seven ships-of-the-line on the American stations, independent of fifties, frigates, and smaller vessels; at the same time, they had thirty-nine ships-of-the-line on the stocks! Tell me, said he, what is to keep a great proportion of them from your coast in 1813? Mr. MCKEE said, he had not expected this subject would have been taken up to-day, or to say any thing on it when it should be taken up. But, said he, for what purpose, I feel impelled to ask, are you going to build these vessels? Are you to spend four or five millions of dollars, in addition to your present extraordinary expenditures, to protect commerce? Will this old argument, in favor of a navy, now be used, which we have so often heard heretofore? Sir, where is your commerce now to protect? Will you protect that clandestinely destined to Great Britain? No, surely. Will you protect that destined to the coast of France? Let us reflect what commerce you can carry on with France. None worth protection, or of any moment to the great body of the American people. Does France purchase your tobacco or cotton, which heretofore have found a market there? She has never been a purchaser of provisions or breadstuffs. What is the state of trade between us and France? Your cotton, in France, is taxed with enormous duties. No man who is not under the influence of the moon would, at this time, think of making a shipment there. Would you ship your commerce there merely to surrender so much property into the grasp of the Emperor? It would be the extreme of folly. Where, then, will you protect your commerce? To the Baltic, sir? You can carry on in that quarter no commerce at all interesting to the great body of the American people. In what does your export to that region consist? In articles of colonial produce; not in articles the produce of your soil. Will you tax the great agricultural community for the purpose of protecting this extraneous commerce? I ask if the people of the West, of the Atlantic, of the Middle States, or any other portion of the American people, will be content to be taxed to support a navy for the protection of a commerce in foreign produce, by which but few individuals in the nation can be benefited? There is no commerce to protect, unless it be that which exchanges specie for the production of the East Indies, and benefits no part of the community. Having no valuable commerce now to protect, the object of adding vessels to your navy, must be to fight your battles at sea. If you would propose a navy as a means of carrying on war, bend your resources to that object. We have been told that the trident of Neptune is passing into our hands. But, sir, the sovereignty of the ocean is not to be acquired by four ships-of-the-line and five or six frigates. You can have no legitimate object in building such vessels as proposed, unless it be to carry on the war. If that be your object, make your means commensurate to the end you have in view. Do you yet contend that the object is to protect commerce? Your commerce is not worth the cost. And who would pay it? The merchants? No, sir. They will pay only their proportion. I recollect, when a boy, to have seen a little book, in which I admired the pictures more than the reading, in which were the representations of a king, a priest, a soldier, and a farmer; a label issuing from the mouth of each contained these words: The king says, "I govern all;" the priest, "I pray for all;" the soldier, "I fight for all;" and the farmer, "I pay for all." This, sir, is perfectly true as regards the American farmers--they pay for all. And what advantage do they derive from it? What advantage are my constituents to derive from the expenditure of this money? THURSDAY, December 17. _Increase of the Navy._ The House again resolved itself into a Committee of the Whole on the bill to increase the Navy of the United States. Mr. SEYBERT moved to amend the first section of the bill by striking out "four seventy-fours and," so as to erase the provision for building vessels of that description. Mr. GOLD.--The provision in the bill to introduce ships-of-the-line into the Navy, I consider, Mr. Chairman, as fixing the great policy of a navy under this Government. Frigates we have had, but in common with petty nations; for the Barbary Powers have frigates; the provision now offered rises higher and promises something worthy of the constitution, something honorable to the Government. I rejoice, Mr. Chairman, at the favorable circumstances, and hail the auspices under which we now meet this question; we are no longer left to erring speculations, to uncertain reasoning, but have under our eyes the sure and infallible test of experience, of practice in war with a naval force. Within a few weeks our tars have thrice grappled with the enemy, and thrice have they triumphed in combat; the success has swelled the American bosom with joy from Orleans to Maine--all without exception of party, vie in demonstrations of joy and in the bestowment of honors upon the victors. While such a scene is presented here, gloom and dissatisfaction prevail in the metropolis of Great Britain--those who have been so long accustomed to conquer, receive the capture of the Guerriere with as much astonishment as they would behold a suspension of the laws of nature. A strange event to Britons! How often, sir, has it been echoed and re-echoed within these walls, that it would be in vain to attempt any thing with a navy against Great Britain, unless we could bring ship to ship and man to man--could equal our enemy on the ocean. How much mistaken have gentlemen been; how vain is human reason! The earliest stage of the first war under the Government has yielded a clear, full, and incontestable refutation of the argument. While the American arms have suffered disgrace upon disgrace on what was deemed the natural and proper theatre for the display of our power; while by land all is gloomy and comfortless, and the heart sickens under the past, our little Navy, a handful of men, has nobly sustained us upon the ocean, and banished that despondency which our disasters by land must have otherwise produced. If, sir, under such auspices, such overwhelming evidence of the efficiency of a navy, this question is to be put by, I shall despair of a navy; we may rank with Algiers in a force of frigates, but shall do nothing worthy of a community of eight millions of souls, placed by Heaven in a situation most favorable to commerce and naval power. The objections, sir, to a navy are not a little amusing. Do you move the question in peace, it is objected, that commerce flourishes and you want not protection; at another time it is said not to be worth the expense of a navy, and lastly a navy will draw America into the European vortex and involve us in a war. Now that we are in war, a new book of logic is opened, and it is objected, that you have not time to build a navy, the war will be over before ships can be finished. It is thus, sir, that the arguments against a navy are made to answer and refute themselves; nay, more, the argument in war is a satire and reproach to the objection in peace. "There is not now time to build a navy," reproaches us for not having passed the requisite laws at the last session. I have always considered the great policy of a navy settled by the constitution; need I spend time to show, that no great specific power was delegated to the General Government unless it was deemed necessary; not necessary for a dormitory, but to be executed for the general protection and welfare. This was the polar star--the test and criterion that governed in the delegation of powers by the States--powers not necessary to be exercised for the general good were retained by the several States. What greatly strengthens the argument is, the power to provide a navy is not only given to the General Government, but taken away or denied to the several States. In adopting the constitution, this question was considered at rest, and a navy was deemed the necessary consequence of this power; in the Virginia Convention, where great talent and ingenuity was displayed in the debate, the point was so considered, and the objection rested on that ground; the consequence of adoption was supposed to be an unequal strengthening of the commercial parts of the Union. So deeply impressed was President WASHINGTON with the importance of a navy, and so true to his duty and just claims of commerce for protection, that he could not consent to quit his high station in the public councils without placing on record his sentiments for the good of his country--this he did in his speech to the fourth Congress (second session) in language that well attests his wisdom and paternal care and solicitude for his country. He recommended and urged the policy of a navy in the strongest terms, and I will not believe that the parting lesson of that great and good man will be lost to his country--there is certainly too much respect for his memory to disregard his solemn advice and counsel on any subject. In this policy Mr. JEFFERSON also concurred at a period most auspicious to fair inquiry and dispassionate judgment; it was before the tempest of party arose, to obscure the great luminary of truth and blacken the political horizon. Mr. WIDGERY.--Mr. Chairman, it will be recollected that I was last session of Congress opposed to the building of seventy-fours, until we had got more frigates. I have been rather opposed to them in the Committee of Naval Affairs, not because I was opposed to an augmentation of the Navy, but because I thought it more to the advantage of the country to build frigates and sloops of war at present; and if, hereafter, when we have sailors plenty to man the large ships with, it should be thought best to have larger ships, it may be very well to build them; but, at present, our resources are inadequate to build the seventy-fours and the ten frigates, and say eight or ten sloops of war, which are absolutely necessary for the protection of our seacoast, in order to keep off the British gun-brigs or privateers. The ships-of-the-line will not answer this purpose, when they are at sea; they must keep deep water; they cannot, with safety, follow in under the land those small vessels which annoy our coasters, and capture them all along shore. Within a few days, I have accounts of a small privateer, of eight guns, having captured twenty or thirty sail of coasting vessels. Sir, it is a sight to see a public armed ship of the United States anywhere on our shore to the eastward of Boston--a seacoast of 200 miles--when the enemy can take every thing that passes out to sea, and a country in which there are the best of ship-harbors, where they might cruise with safety, always having a harbor handy to run into. I cannot feel willing to build seventy-fours, to the exclusion of the smaller ships, of which we are so much in want at this time. If you had the money in your chest, and all ready for the building four seventy-fours, and all the timber in the yard--which you have not--still I should have doubts on my mind as to the propriety of those heavy ships. Say, if you please, that you had those ships built, could you send them to sea? I presume not, if at war with England, because she would always blockade your harbors wherever they were; and if you sent them out, perhaps you would never have to man them again; not because our ships in single combat are not a match for hers, but, because they have more ships than they know what to do with; they would always outnumber you at sea, and they would be able to come up with and capture your four ships. But, for what purpose are you to send them out? Certainly, not to take merchantmen. They are not calculated for that purpose, unless you had more than four of them. In case you had a number sufficient to intercept their East India fleet, which, generally, are under strong convoys of heavy ships, then it might be an object to send them to sea. If you are to keep them in port, for the purpose of harbor defence, you must always keep them manned; it will be too late to man them after the enemy comes in sight. And there is, in my mind, another difficulty: In the manning these heavy ships, you will have to impress men to go on board of them, or raise the wages up to what is given in a merchant ship; because the sailors will not be willing to go on board large ships, when they have no chance for prize money. On the other hand, they will be very willing to enter on board cruising ships, such as frigates or sloops of war, in hopes of taking prizes; and you have not, at present, a sufficient number of sailors to man what smaller vessels we want. If you build frigates and sloops of war, they can be furnished without your advancing the money; the merchants will build them, and loan them to the Government. The frigates and smaller vessels can be put afloat in six months from the time they are agreed for; and your ships-of-the-line will not be finished in less than two years; and if they do not cost 30 per cent. more than they are calculated at, I will dare pay all I am worth towards them for nothing. I am willing to go for almost any number of frigates, because I know you can have them built without advancing a dollar until they are ready for service, and because I am convinced they are most for our interest. Popular opinion, I know, has great weight at times; let us not be carried off on the wings of enthusiasm; we are at present at very great expense, and we ought to act prudently with our finances, or they will soon become low. At the same time, I cannot agree with the gentleman from Kentucky, who says he is opposed to any augmentation of the Navy, and asks if you are willing to tax the planters for the building a Navy, and the protection of the merchant? Sir, will not the same reasoning apply against the maritime towns being taxed to support the army of 10,000 men in the West? Gentlemen say, stay on shore, and you will be safe. Sir, may we not, in return, say to the gentlemen who are settling the cheap lands of the interior, keep among us; go not into the Indian country; we cannot be taxed to defend you. This reasoning will apply with as much force against the interior as theirs does against the Atlantic towns. Sir, we are all one people, and, in order to remain so, we must be willing to defend at all points. Mr. BASSETT spoke several times in the course of the debate. The following is the substance of the whole of his remarks: He said, on rising, that it was with no feigned diffidence that he addressed the House. I shall, said he, have credit with every one in the assertion that I am most anxious that the proposition I have made should succeed. Must I not, then, deplore the feebleness of voice, the want of force, of manner, and promptness of mind and thought, which limit me? But I shall feel compensated if the House will, in heart, join me in regretting that a cause worthy of the first of advocates has fallen into such puny hands. For the _cause_, then, will they hear me, and for their country's good will they improve each hint I may let fall, by their better judgment. It is true, sir, we have little experience--I cannot boast of naval knowledge in our land--but, yet, we are not quite deficient. Let it be remembered, that it is on the first principles that we are to decide; that we are to mark the outlines only, which depend much on general reasoning, and, in doing which, we may resort to the experience of others. I will follow (though with unequal step) the course taken by my predecessor last year, and, on the question to fill this blank, bring the whole subject before the committee. It will be assumed, as then proved, that protection is due to every national right, which cannot be estimated by pecuniary calculation, but must be tested by national ability only to defend and protect them. To the mode of effecting so desirable an object, I shall confine myself. The report has assumed it as a principle almost of instinct to oppose like to like, and so says the history of man, whom we find ever availing himself of the improvements of his assailant for self-defence. Hence has the art of war become to all nations the most interesting science, and no citizen is more estimable than he who can direct the national force with most efficiency. The importance of a naval force is amply attested on record. I will first, sir, point you to the conflicts between the rival Republics of Rome and Carthage, and ask you to remember the agency that their vessels had in them. Had the Romans confined themselves to the land, never had Carthage been destroyed. The history of Europe, from Venice to Great Britain, is too familiar to all who hear me, to require reference to particulars. It is sufficient for me to call attention to the effect of naval power, as it passed from nation to nation. What was the power of Venice and Genoa when they led the van of naval power? How quickly did the sceptre of Portugal rise, as she assumed a station on the ocean! how sink as she lost her naval preponderance! How did a navy once support the United Provinces! and how is it now the salvation of Great Britain! It is then a fact, that a naval armament gives effect to the power of a nation, as do the musket and bayonet, the cannon and the mortar. And how, sir, is it attempted to rebut this fact? By showing a physical disability in the country to avail itself of this force? No. For then would they be rebutted by the extent of our coasts, by the materials for ship-building, (so ample,) and the known habits and genius of our countrymen, as each day is evincing. And here, sir, I wish I could follow up the beautiful figure of my friend, who, on a former occasion, showed you our continent, extending to either ocean, with the finger of Munificence pointing to the goodly heritage. We have then these facts: that a navy is a powerful means of national operation; that our local situation is fitted for its use; and that we have the necessary materials. To which it is objected that your infant Navy must be opposed to one which has reached the full manhood of power on the ocean. I admit it. But shall we therefore abandon the ocean, yield our birthright, our goodly heritage, without a struggle? Or, shall we not rather, deducing argument from example, like the gallant Captain Hull, avoid their fleets and capture their single ships. I am aware that habit impels some to be fearful on this subject, and the experience of the past will not convince them. With diffidence, therefore, do I refer to the efficiency of twelve ships-of-the-line and twenty frigates, as demonstrated last session. Let me ask of gentlemen who thus think, who thus feel, to examine the extent of their argument. Does it not go, not only to the abandonment of the ocean, but to the seacoast also? I shall trust to former statements for the magnitude of this sacrifice, with the observation, that abandoning the ocean involves the loss of one million four hundred thousand tons of shipping; and that in giving up the coasts, you lose a valuable portion of your soil, and some of your fairest cities. I will not dwell on the magnitude of this sacrifice, because I cannot believe that Americans will abandon any right which there is a prospect to maintain. I cannot, I admit, answer as conclusively the objection, that much time will be passed before this force can be procured; yet, I believe, that a mind which relied on that objection, might be satisfied that late preparation is better than none. Nor could a mind, so circumstanced, fail to see, that, while making preparation, you come every day nearer your object; in neglecting it, you are every day further from it, and you are, in neglecting it, blending ultimate loss with temporary sacrifice. Mr. Chairman, is it for an infant nation, or a popular Government, to be deterred by the want of preparation? What is it that the youth has not to prepare, or when was it that a popular Government taxed itself with previous preparation? But why this argument of despair? What were your preparations for the Revolutionary war, and when made? After an army was in your country. Yet were they then made and effectually made. By the bravery of our fathers our soil was secured; on us it rests to secure our rights on the water, common to every independent nation, and as clearly ours as they are essential to our interests. What is this argument of infancy? Had not the Navy of Great Britain a beginning? Yes. There was a time when Britain had no ship. What then? She was invaded, and more, she was conquered. At this day, her wooden walls, as they are proverbially called, are her defence and protection. Is it admitted that the British fleet secures her from attack? If so, would not a fleet secure us from attack also? But we have it not. Is it not then our duty, as guardians of the public interest, to provide this powerful, this necessary means of defence? But some are alarmed at the cost. Permit me to recur to the calculation of the last year. And first, as to the information derived from British experience, whose example may be taken as precedent on maritime subjects; at least they make a powerful argument, where they are rejected as full proof. In recurring to British estimates, it certainly was unexpected to the American eye to see the same sum charged for a soldier as for a sailor, viz: ---- dollars per month; and as unexpected, on investigating the British expenditures for a series of years, to find that the appropriations for the Navy are found less than those for the Army, as will be seen by reference to the _Annual Register_. In corroboration of this is our own history, as appears from the calculations made by my predecessor, of which I will avail myself. Is it not then demonstrated by foreign and domestic experience, that a naval force is the cheapest the nation can resort to for defence and protection? Is it not also proved, that a force believed to be competent, might be obtained at a sum greatly within the means of the Government--say twelve millions of dollars--or a fourth less than the ordinary amount of revenue for a year in good times? Test this subject in another way. The cost of your Navy, twelve millions; give up the ocean, and you lose, for one item, one million four hundred thousand tons of shipping, which at fifty dollars the ton, would be worth five times the sum. Yet that would unquestionably be the least item in the account, because that would be but one loss, while that of your coasting, and other trade, would swell into a great annual amount, and be as great a sacrifice of convenience as profit. Nor is such a conclusion the less to be deprecated, because it is difficult to foresee all the evils which must result from the abandonment of one essential right of an independent nation. I know it may be said by those who view this subject differently from me, that they do not mean to abandon the ocean. It is, then, for them to show the difference between not abandoning a right, and not defending it; for I cannot believe that any gentleman will contend that the national defence shall be left to privateers. They have most justly been considered an aid to the national arm, but Heaven forbid that they should be relied on as principal. A private arm, with power to shield the nation, is what I could not contemplate without terror. I cannot believe it necessary to pursue this argument. To return then: The force adequate to the defence of our seas would cost twelve millions. I will not say that this whole expense ought to be incurred in one year; indeed, it ought to be remarked, that of the twenty frigates, nearly eight are ready for service. Let the principle be yielded, and we can then enter on the calculation as to the portion which may be procured each year. The decision, too, would, in my judgment, be the strongest inducement to the enemy to make peace when they saw that you were progressing to a force which they could not meet. If, indeed, the force which has been named was not altogether adequate to the object of defending your own waters, you would find, having that force, that you could make any small addition that was requisite without difficulty. In reference to the opinions of others, in some measure, did the select committee determine on the number of ships, and their force, to be procured this year. Thus if the first blanks are filled with four seventy-six gun ships, they cost, per estimate, $333,000, and will require an appropriation of $1,332,000. If the other blank be filled with six thirty-eight gun ships, which, by estimate, cost $220,000, the requisite appropriation for them will be $1,320,000. For the sloops of war, the last blank I have calculated at $61,200, which would require an appropriation of $367,200; which, with the necessary appropriation for the four frigates ordered to be rebuilt last year, viz: the Philadelphia, New York, General Greene, and Boston, will amount to $3,500,000. This would give you four seventy-sixes and eighteen frigates, mostly of the best size. Compare the efficiency of that force with the interest of three millions and a half, the cost, and you cannot but be gratified with the result. I say, Mr. Chairman, the interest; because, though it was not in the province of the select committee to look out the ways and means, yet was it so interested as to their object, that they could but ask how was the money to be had; and they were satisfied that three millions and a half could, with facility, be loaned for navy purposes. I state this with no view to limit the ways and means, but only that until the subject is given them to provide for, the House might not be embarrassed with the difficulty of money. With the humble hope that the views of the committee have been shown to be at least most reasonable, if not most correct, I beg leave to say a few words as to the different kinds of vessels proposed. I will not ask that the clerk should read that excellent letter from Captain Stewart, because I presume every gentleman who wishes information has read it more than once. From that and the other documents, the committee thought themselves warranted in recommending four seventy-six gun ships. In addition to the sufficient reasons offered there, that a large ship, with fewer men and a less cost, will be more efficient than small ones, by the table A it is most conclusively evinced, that a seventy-six, at one round, throws on the enemy four pounds fourteen ounces of ball for each man; whereas, the gunboat throws only ten ounces. I only give the extremes, that the argument may be the more readily taken. Here, too, we have the fact, that six hundred and fifty men are sufficient for a seventy-six, while four hundred and twenty are required for a frigate. The annual expense is, for the large ship, $202,110; for the frigate, $110,000. While in action, the larger ship is equal or superior to three frigates. To support this calculation by figures, we have the opinions of Captains Hull, Stewart, and Morris; and Mr. Hamilton says, that all the officers in service concur in the opinion; and I am told that such is the real history of naval conflicts. Mr. Hamilton mentions one, and Captain Stewart mentions another, of four French frigates attacking a British seventy-four, of which one was sunk, two taken, and the other run off. It is cause of some exultation to me, that our naval men, where the opportunity is afforded them, give the example to prove our theory. As I am told, orders were sent from Washington in September to Captain Chauncey, then at New York, who made his preparation, took his workmen with him to the Lakes, and some days since we had the account that he had built and launched, before November was out, a frigate of twenty-six guns. The gallant Chauncey enables me to present an argument that would, could I do it justice, I am sure, have much weight. Will any gentleman regret that this twenty-six gun ship has been built, though the mastery of the Lakes has been acquired without it? Neither shall we regret the building of the seventy-sixes, though peace, which God send, should come before they are launched. There is yet one other objection too important to be passed over, though it was on a former occasion so ably canvassed. It is the difficulty of getting seamen. That difficulty exists, I do admit. Yet is not the difficulty insurmountable. Here again I avail myself of the illustrations of my friend from South Carolina. The gentleman has again referred to the difficulty of manning your ships, and deems impressment indispensable. Sir, I admit the weakness of our nation, and lament it too. Yet I cannot believe that the hard hand of tyranny is essential to their well-being; and I regret that in an assembly of freemen, that this, the most if not the only detestable example England has set us as to a navy, should be so much relied on. Look to the fact, that in five years forty-two thousand seamen deserted from the British navy. Look to the fact, that their prisoners require to be committed to return to their own country. It is with no little pride that I call the attention of the gentleman and the committee to our gallery. Did a British gallery ever exhibit such a spectacle? No, a seaman there is a slave, and seldom puts his foot on shore but under the guard of an officer. Let us therefore be cautious in admitting that though Great Britain has been most successful, that she owes it to the hard, to the iron hand of impressment. It would not be difficult to find in her naval institutions other principles to which the mind would delight to attribute her superiority, rather than that from which we cannot but turn in disgust. Mr. STOW said he should not consider the motion made by the honorable gentleman from Pennsylvania (Mr. SEYBERT) as going to defeat the main object of the bill, which was a liberal increase of the navy, because he understood his intention to be to move a larger number of frigates if the clause for seventy-fours should be stricken out. The question then he should consider as simply whether it was best at present to build any ships-of-the-line, or to confine our exertions to frigates only? He said his own opinions had leaned pretty strongly to the latter side till, as a member of the Navy Committee, he had been led to a more careful examination of the subject; and he confessed that that examination had fully convinced him of the utility, and he might say necessity, of building some line-of-battle ships. The propriety of building them, as well as a proportion of lighter ships, grew out of the different objects to which they were to be applied. There could be no doubt of the superior advantages of frigates and sloops of war when employed in cruising against our enemy's commerce, but whenever the object is to repel a powerful force, ships-of-the-line ought to be resorted to. They form batteries infinitely more effective in proportion to their expense than frigates. To illustrate this--the cost of a seventy-four is less than one-third more than that of a forty-four gun frigate, yet the force is as three to one, or according to the lowest estimate I have heard, as two to one. This is easily explained when we consider that to make a seventy-four is little more than adding another deck to a large frigate. It would then appear evident, that unless we resorted to this kind of force, we should fight our enemy on the most unequal terms. She could at any time lay a few heavy ships at the mouths of our harbors and in our narrow waters, and thus effectually destroy not only our foreign trade, but what was of infinitely more importance, she could destroy the whole of our coasting trade. Further, said Mr. S., knowing that we have no powerful ships, she can easily protect by convoy all her valuable fleets; but if we had four ships-of-the-line she would be driven to the enormous expense of convoying every fleet of merchantmen sailing to any part of America by five or six seventy-fours, or they would be exposed to capture by our fleet. But, said Mr. S., it is objected that they would be blockaded. This objection was equally against frigates; but he was perfectly willing to put it upon that ground, that Great Britain would attempt to blockade them. What then would be the case? She must employ six blockading ships, supported at an enormous expense, at such a distance; and as had been fully shown by the gentleman from South Carolina, (Mr. CHEVES,) last year, six more ships at least must be occupied in preparing and sailing to replace the first six--thus employing twelve ships to four. And after all, the attempt to confine our ships would frequently be rendered abortive by storms. Again, it has been objected that we had no harbors south of Montauk Point, in which, if pursued, our ships could take shelter. If by this was meant barely that we had no harbor properly fortified, he admitted it was true; and it was also equally true as applied to our heavy frigates; but if it was meant that there was no harbor in which ships could enter that was capable of being properly defended, it was entirely erroneous. For many such there were, and where sufficient works could be erected in a few months. Mr. S. said a strong reason for building seventy-fours, and to which he particularly requested the attention of the committee, grew out of the state of our preparation. We have timber for four seventy-fours, seasoned and ready for use, which could not be applied to frigates, without great loss. And this explained the fact, that we could build seventy-fours sooner than frigates, unless the timber thus provided should be cut up, which, after years of deliberate preparation for seventy-fours, would appear like children's play. He said in a case of this kind, he thought great respect was due to experience. That many years ago all the ships of war belonging to the nations of Europe were small, but that, without one exception, they had resorted to a certain proportion of heavy ships. From this circumstance, as well as from the uniform opinion of our own officers, he inferred that these were the most conclusive reasons in favor of them. The question was then taken on the motion to strike out the seventy-fours, and negatived. The committee rose and had leave to sit again. FRIDAY, December 18. _Increase of the Navy._ The House again resolved itself into a Committee of the Whole on the bill to increase the Navy of the United States. Mr. CUTTS then moved to strike out the seventy-fours, with a view to increase the number of frigates to be built to ten, and to add a number of sloops of war. Mr. C. spoke at considerable length in support of his motion, and in favor of frigates and sloops of war in preference to seventy-four gun ships. The question was then taken on striking out the provision respecting seventy-fours, and was carried--for the amendment 56, against it 53. Mr. CUTTS moved an amendment authorizing the building of ten ships of war, of forty-four guns, and ten sloops of war.--Motion lost by a great majority. MONDAY, December 21. On motion of Mr. BASSETT, the petitions of J. A. Chevallie, attorney of Amelie Eugene de Beaumarchais, presented on the 24th of December, 1805, and 2d of April, 1806, together with all the documents concerning the said claim, were referred to the Committee of Claims. _Encouragement to Privateering by Public Armed and Private Armed Vessels._ Mr. BASSETT, from the Committee on the Naval Establishment, presented a bill relating to captures; which was read twice, and committed to a Committee of the Whole on Wednesday next. The bill is as follows: A Bill relating to captures. _Be it enacted, &c._, That where any ship or vessel in the service of the United States shall have captured, or may hereafter capture, a ship or vessel belonging to an enemy, of equal or inferior force, and it shall become necessary to destroy such prize to prevent her falling into the hands of the enemy, or for the security of such ship or vessel so in the service of the United States, the Secretary of the Navy is hereby required to issue his commission to one or more fit person or persons, who, on the best evidence that can be procured, shall proceed to estimate the value of such ship or vessel, prize as aforesaid, in the port into which the capturing vessel shall first enter, and make return on oath of said estimate or valuation to the Secretary of the Navy. SEC. 2. _And be it further enacted_, That the Secretary of the Navy shall thereon proceed to apportion the sum, which shall be equal to one-half the said valuation or estimate, as prize money, among the officers and crew making such capture, and cause the same to be paid to them accordingly. SEC. 3. _And be it further enacted_, That each commissioned officer shall receive six dollars per day for each day he shall be employed in making the aforesaid estimate: _Provided_, His compensation shall in no case exceed ---- dollars. SEC. 4. _And be it further enacted_, That every captain or commanding officer of any vessel in the service of the United States immediately on his coming into port, after having captured a ship or vessel of equal or superior force, shall make report thereof to the Secretary of the Navy, describing particularly the size and equipment of the ship or vessel so destroyed, and the nature and extent of the damage done her in the action, as also the causes and inducements for destroying his prize, which report, in part, shall be received as evidence by the commissioners aforesaid. SEC. 5. _And be it further enacted_, That the Secretary of the Navy shall cause the account of the money so by him ordered to be paid, to be settled at the end of one year, and all the unclaimed dividends he shall cause to be paid over to the Navy Hospital Fund. Mr. BASSETT, from the same committee, also presented a bill regulating pensions to persons on board private armed ships; which was read twice, and committed to a Committee of the Whole on Thursday next. The bill is as follows: A Bill regulating pensions to persons on board private armed ships. _Be it enacted, &c._, That the two and a half per centum reserved in the hands of the collectors and consuls by the act of June, eighteen hundred and twelve, entitled "An act concerning letters of marque, prizes, and prize goods," shall be paid into the Treasury, under the like regulations provided for other public money, and shall constitute a fund for the purposes of this act, and such other purposes as Congress may direct, for the aid and comfort of the seamen of the United States. SEC. 2. _And be it further enacted_, That the Secretary of the Navy be authorized and required to place on the pension list, under the like regulations and restrictions as are used in relation to the Navy of the United States, any officer or seamen who, on board of any private armed ship or vessel, bearing a commission or letter of marque, shall have been, in the line of duty, wounded or otherwise disabled; if an officer, allowing him one-half his monthly pay for the greater disability, and so in proportion; and if a seaman, or acting as a marine, the sum of six dollars per month for the greater disability, and so in proportion; which several pensions shall be paid, by direction of the Secretary of the Navy, out of the fund above provided. SEC. 3. _And be it further enacted_, That the commanding officer of every vessel having a commission, or letters of marque and reprisal, shall enter in his journal the name and rank of any officer, and the name of any seamen who, during his cruise, shall, in the line of his duty, have been wounded or disabled, describing the manner and extent, as far as practicable, of such wound or disability. SEC. 4. _And be it further enacted_, That every collector shall transmit quarterly to the Secretary of the Navy a transcript of such journals as may have been reported to him, so far as they give a list of the officers and crew, and the description of wounds and disabilities, the better to enable the Secretary to decide on claims for pensions. _Duties on Privateer Prize Goods._ Mr. CHEVES, from the Committee of Ways and Means, to whom was referred the bill from the Senate directing the Secretary of the Treasury to remit certain fines, penalties, and forfeitures, reported the same with amendments, the principal one of which is to strike out the words "and the dependencies thereof," so as to exclude from the operation of the bill, the cases of goods brought in from Canada, &c.--The bill was referred to a Committee of the Whole. Mr. C. also introduced the following report: The Committee of Ways and Means, to whom were referred so much of the petition of the owners and agents of sundry private armed vessels fitted out of the port of New York, as prays the reduction of the duties on prize goods, and the petitions of sundry owners of private armed vessels fitted out of the port of Boston, and of sundry owners of like vessels fitted out of the ports of Norfolk and Portsmouth, Virginia, also praying a reduction of the duties on prize goods, report: That a letter from John Ferguson and John L. Laurence, agents for the petitioners from New York, and a letter from the Secretary of the Treasury, both addressed to the chairman of the committee, and which accompany this report, contain all the facts and views which will probably be found material in the examination and consideration of this subject; and that this committee, having maturely considered them, are of opinion, that a reduction of the duties on prize goods, without embracing, at the same time, all importations made in the prosecution of the ordinary commerce of the country, cannot, consistently with sound policy and rational legislation, be made, and that a general reduction would diminish a revenue, where it does not distress the consumer, and would not produce any material increase of gain to the captors. The committee, therefore, recommend the following resolve: _Resolved_, That it is inexpedient to grant the prayer of the petitioners. _Documents referred to in the above report._ WASHINGTON, _Nov. 23, 1812_. SIR: We take the liberty of enclosing to you, for the inspection of the Committee of Ways and Means, sundry papers connected with the application by the owners of privateers in New York, for a reduction of duties on prize goods. They are as follow: No. 1, exhibits the proceeds of the schooner Venus and cargo, captured by the privateer Teazer. No. 2, is a statement of the cost of the privateers General Armstrong and Governor Tompkins. No. 3, contains extracts of letters from several privateer agents. The Committee of Ways and Means are (including the accompanying documents) in possession of three statements of prize sales, where the property was, in each case, of a different character from the others. The cargo of the New Liverpool consisted (contrary to our impressions when before the committee) altogether of wine, amounting to 27,959 gallons, whereon the duty was 46 cents per gallon, which consumed more than one-half of the proceeds of vessel and cargo, and, connected with the other charges, left the owners of the privateer about one-sixth of the captured property. The Industry was laden with 152 bbls. salmon; and the benevolent intentions of the privateersmen to restore to an indigent owner the amount of her loss, terminated, in consequence of the high duties and charges, in an inability to present her with more than a paltry sum, scarcely worth her acceptance. The Venus had a cargo of rum, sugar, fruit, and preserves, which produced $17,637 68, and was charged with duties amounting to $8,287 63. The vessel, being well calculated for a privateer, was bought in by the captors for that business. But, experience teaching them that the profits of private naval warfare are by no means equivalent to the hazard, they have abandoned that intention, and are now offering the Venus for sale in the public newspapers, but cannot find a purchaser. We would respectfully suggest to the Committee of Ways and Means that great anxiety exists in New York, that Congress may give the question of a reduction of prize duties a speedy decision; which, if favorable, will revive the spirit and zeal, now expiring, with which privateering was undertaken at the commencement of the war; and, if unfavorable, will prevent those who have purchased vessels for warlike enterprises, in which they cannot now dispose of any interest, from incurring losses accumulated under fruitless expectations. We have taken the liberty of reminding the committee that no naval force of any efficiency can be supported by the Government but at an expense far greater than the amount of the duties of which we pray the remission; and that there is probably no other species of naval armament half so destructive as privateers to the commerce of an enemy. The employment of a great number of experienced masters of vessels and seamen necessarily engaged in them, whose services could not probably be obtained in any other way, and whose skill and intrepidity produce so much honor to the country, forms another important consideration. To these may be added, that, in no other way, can the mercantile interest be so effectually united in the support and prosecution of the war, as by offering inducements to the investments of its otherwise unemployed capital in such enterprises. We are, sir, with great respect, your obedient servants, JOHN FERGUSON, JOHN L. LAWRENCE. Hon. L. CHEVES, _Chairman, &c._ TUESDAY, December 22. _Imprisonment of American Seamen._ The SPEAKER laid before the House the following Message from the PRESIDENT OF THE UNITED STATES: _To the House of Representatives of the United States_: I transmit to the House of Representatives a report of the Secretary of State, complying with their resolution of the 9th instant. JAMES MADISON. DECEMBER 21, 1812. DEPARTMENT OF STATE, _Dec. 19, 1812_. The Secretary of State, to whom was referred the resolution of the House of Representatives of the 9th instant, requesting information touching the conduct of British officers towards persons taken in American armed ships, has the honor to lay before the President the accompanying papers marked A, B, C, from which it appears, that certain persons, some of whom are said to be native, and others naturalized citizens of the United States, being parts of the crews of the United States armed vessels the "Nautilus" and the "Wasp," and of the private armed vessel the "Sarah Ann," have been seized, under the pretext of their being British subjects, by British officers, for the avowed purpose, as is understood, of having them brought to trial for their lives, and that others, being part of the crew of the Nautilus, have been taken into the British service. The Secretary of State begs leave also to lay before the President the papers marked D and E. From these it will be seen, that whilst the British naval officers arrest as criminals such persons taken on board American armed vessels as they may consider British subjects, they claim a right to retain on board British ships of war American citizens who may have married in England, or been impressed from on board British merchant vessels; and that they consider an impressed American, when he is discharged from one of their ships, as a prisoner of war. All which is respectfully submitted. JAMES MONROE. (A.) _Sir John Borlase Warren to Mr. Monroe._ HALIFAX, _September 30, 1812_. SIR: Having received information that a most unauthorized act has been committed by Commodore Rodgers, in forcibly seizing twelve British seamen, prisoners of war, late belonging to the Guerriere, and taking them out of the English cartel brig Endeavor on her passage down the harbor of Boston, after they had been regularly embarked on board of her for an exchange, agreeable to the arrangements settled between the two countries, and that the said British seamen so seized, are now detained on board the United States frigate President as hostages; I feel myself called upon to request, sir, your most serious attention to a measure so fraught with mischief and inconvenience, destructive of the good faith of a flag of truce and the sacred protection of a cartel. I should be extremely sorry that the imprudent act of any officer should involve consequences so particularly severe as the present instance must naturally produce, if repeated; and although it is very much my wish, during the continuance of the differences existing between the two countries, to adopt every measure that might render the effect of war less rigorous, yet, in another point of view, the conviction of the duty I owe my country would, in the event of such grievances as I have already stated being continued, not admit of any hesitation in retaliatory decisions; but as I am strongly persuaded of the high liberality of your sentiments, and that the act complained of has originated entirely with the officer who committed it, and that it will be as censurable in your consideration as it deserves, I rely upon your taking such steps as will prevent a recurrence of conduct so extremely reprehensible in every shape. I have the honor to be, with the highest consideration, sir, your most obedient and most faithful humble servant, JOHN BORLASE WARREN, _Admiral of the Blue, Commander-in-Chief, &c._ JAMES MONROE, Esq., _Secretary of State_. _Mr. Monroe to Sir John Borlase Warren._ DEPARTMENT OF STATE, _Oct. 28, 1812_. SIR: I have had the honor to receive your letter of the 30th September, complaining that Commodore Rodgers, commanding a squadron of the United States Navy at the port of Boston, had taken twelve British seamen, lately belonging to His Britannic Majesty's ship the Guerriere, from a cartel in the harbor of Boston, and that he had detained them on board the President, a frigate of the United States, as hostages. I am instructed to inform you, that inquiry shall be made into the circumstances attending, and the causes which produced the act, of which you complain; and that such measures will be taken, on a knowledge of them, as may comport with the rights of both nations, and may be proper in the case to which they relate. I beg you, sir, to be assured that it is the sincere desire of the President to see (and to promote, so far as depends on the United States) that the war which exists between the two countries be conducted with the utmost regard to humanity. I have the honor to be, &c., JAMES MONROE. Sir JOHN B. WARREN, _Admiral of the Blue_, _Commander-in-Chief, &c._ (B.) WASHINGTON, _Dec. 17, 1812_. SIR: I have the honor to annex a list of twelve of the crew of the late United States sloop of war Wasp, detained by Captain John Beresford, of the British ship Poictiers, under the pretence of their being British subjects. I have the honor to be, respectfully, sir, your obedient servant, GEORGE S. WISE, _Purser_. Hon. PAUL HAMILTON, _Sec'ry Navy_. [Here follow several other documents, not deemed of material importance, except the following:] (C.) _Extract of a letter from Major General Pinckney to the Secretary of War, dated_ HEADQUARTERS, CHARLESTON, _November 4, 1812_. "Information having been given upon oath to Lieutenant Grandison, who at present commands in the Naval Department here, that six American seamen, who had been taken prisoners on board of our privateers, had been sent to Jamaica to be tried as British subjects for treason, he called upon the marshal to retain double that number of British seamen as hostages. The marshal, in consequence of instructions from the Department of State, asked my advice on the subject, and I have given my opinion that they ought to be detained until the pleasure of the President shall be known. The testimony of Captain Moon is herewith. I hope, sir, you will have the goodness to have this business put in the proper train to have the President's pleasure on this subject communicated to the marshal." The Message and documents were, on motion, referred to the Committee on Foreign Relations. WEDNESDAY, December 23. Another member, to wit, from Louisiana, THOMAS BOLLING ROBERTSON, appeared, produced his credentials, was qualified, and took his seat. _Increase of the Navy._ The bill from the Senate to increase the Navy of the United States, was read a third time; and the question, being stated, "Shall the bill pass?" Mr. MCKEE spoke at considerable length against its passage, and concluded by moving to postpone it to Monday, with a view to obtaining further information on the subject of the materials, &c. The motion to postpone was supported by Mr. ALSTON and Mr. SEYBERT, and opposed by Mr. MILNOR, Mr. BASSETT, and Mr. WIDGERY. The votes were for postponement 51, against it 73. So the motion was lost. The question recurring on the passage of the bill, Mr. POTTER said, as he represented a commercial State, and his constituents at present were very anxious for a navy, he felt it his duty to assign his reasons for the vote he was about to give. He said, when he saw his political friends, with only one exception, in favor of the bill under consideration, and the anxious solicitude of the gentleman on the other side of the House for its fate, he felt himself much embarrassed; but while he was by his feelings at times almost impelled to vote in its favor, his judgment compelled him to vote against it. Mr. P. said his objections to a navy were that it would cost more than ever it would be worth to the nation; that we could not build, man, and support the ships contemplated, in addition to our present establishment, without resorting to the same means for their support as other maritime nations had done; that it must be supported by impression or oppression; we must either impress our citizens to man our Navy, and compel them to serve against their wills for almost nothing, or oppress the nation with taxes not to be endured, to enable the Government to give such wages as would induce our seamen to enter voluntarily into our service. He said it had been observed by the friends of the bill, and particularly by his friend from Pennsylvania, (Mr. MILNOR,) that the Navy was at this time very popular with all parties, in this House and the nation; that they had done honor to themselves and to their country, while our army had, in almost every instance, been defeated and disgraced. Mr. P. said we had been very unfortunate in the selection of some of our commanding officers, who had, as it would seem, been appointed more because they wanted office, than because they were qualified for it; some of them were too old, and others too young; but he believed we had as good officers in our Army as we had in the Navy, and whenever the time should arrive that would afford them a fair opportunity, that they would equally distinguish themselves. Mr. P. said there was a kind of popular delusion at this time about a Navy, that he found difficult to oppose. He said it was at least popular with all those who expected to make money out of it, and with many from the most honorable motives. But he believed, when the people, who were to pay all, and receive nothing, come to see that we had spent for them the last year upwards of twenty millions of dollars, and that notwithstanding all the moneys we had received, by double duties, and otherwise, that we had increased the national debt, in that year, ten millions six hundred thousand dollars, and that we want, for the expenses of the present year, agreeably to the report of the Secretary of the Treasury, $31,925,000, exclusive of the expense of the contemplated increase of our Navy, and for losses and war contingencies--that when they should put those sums together, and apportion them to the several States, agreeable to the constitution, and see that but few individuals, and not many States, would have personal property sufficient to pay their proportions--that this delusion as to those who have eventually all this money to pay would at least vanish. It was likewise said that the spirit of the nation demanded this increase of our Navy. He remembered very well that it was so said on a former occasion, and that the finger of Heaven pointed to war, but it was very soon found that the finger of the people pointed to peace. It was then said, as it is now said, that we were a divided people, and it was necessary to convince foreign nations that we would support our own Government. The then Executive was addressed from all parts of the United States, with pledges of life, fortune, and sacred honor, in support of what he had done, or should do. This was intended to correct the error abroad as to our being a divided people, and for no other purpose. Its object was entirely misunderstood by the then President. He thought they were uneasy and wanted something to steady them. An army was raised, and taxes laid for their benefit;--a navy was provided which did honor to themselves and the nation, that protected our commerce, and caused our flag to be respected in every sea, in consequence of which our revenue continued to increase, notwithstanding all the depredations committed on our commerce, and the nation appeared to be prosperous and happy; but when the people were called upon to test the sincerity of their pledges and promises, by the payment of a tax of only two millions of dollars, they said they had been entirely misunderstood, that those pledges were intended to have an influence abroad, and not for the purpose of trouble at home, and that they would not pay taxes to support a navy or army; and, the first opportunity they had, they changed the Administration. If they would not then pay two millions of dollars, to support that Administration, can they be expected to pay nearly fifty millions for the support of this, for the same purposes? Mr. P. said this Administration, during the last session of Congress, was addressed from all parts of the Union, and from many of the States in their legislative capacities, promising to support them with their lives, fortunes, and sacred honors, in common form. This perhaps was to have its influence abroad. The Administration, believing them sincere, have been induced to declare war, and are left to carry it on without money. They find that those pledges and promises cost but little, and are worth nothing; and the consequence will be, that when the people are called upon to pay those enormous expenses, the present Administration will share the same fate from them as the former did. The gentleman from Massachusetts (Mr. CUTTS) said the expense of this Navy would swamp the present, as it had done a former Administration; that, Mr. P. said, was a business of their own, it was no concern of his; but if with their means they could not manage the affairs of the nation, with their present experience, having seen the rock on which a former Administration split, they would richly deserve it; his only object was to keep his constituents from being mired down with debt and taxes. Many gentlemen support this bill upon the principle that this settles the question; that we are to become a great naval power, and to have a permanent Naval Establishment; to this Mr. P. said he objected for the reasons he had assigned; he said he had found mankind much the same: give them power, and they would not only use, but abuse it--give them money, and they will spend it, and want to borrow; and, he said, if an Administration like the present, without money, without an army, or navy, would plunge this country so unprepared into a war, and continue it for the present existing cause, and extend their views of conquest to the Floridas, the Canadas, Quebec, Halifax, and Nova Scotia, whenever they should have money, an army, and ships; the next thing they would want colonies, as other nations had done, and that Bermuda and New Providence would be in our way; and we must have Jamaica to get good rum and sugar. And instead of this country enjoying peace, which is above all things the most desirable, we should be involved like other nations in perpetual war. Mr. RANDOLPH moved to postpone the further consideration of the bill till to-morrow.--Lost. So the bill was passed. _Medal to Commodore Preble, &c._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the House of Representatives of the United States_: I transmit to the House of Representatives a report of the Secretary of the Navy, complying with their resolution of the 16th instant. JAMES MADISON. DECEMBER 23, 1812. The following is the report referred to in the above Message: NAVY DEPARTMENT, _Dec. 21, 1812_. SIR: On the subject of the resolution of the honorable the House of Representatives, of the 16th instant, I have the honor to state, that, in pursuance of the resolution of Congress of the 3d March, 1805, a gold medal, emblematical of the attacks on the town, batteries and naval force, of Tripoli, by the squadron under Commodore Preble's command, was presented to Commodore Preble, in the manner stated in the enclosed letter, dated May 17, 1806: That one month's pay was allowed, "exclusive of the common allowance, to all the petty officers, seamen, and marines, of the squadron, who so gloriously supported the honor of the American flag, under the orders of their gallant commander, in the several attacks:" That no sword has been presented to either of the commissioned officers or midshipmen, who distinguished themselves in the several attacks: And that it is not known to this Department that there ever was made by Congress a specific appropriation of $20,000 for the purpose of carrying into effect the resolution referred to. With respect to that part of the resolution which requests the President to cause a sword to be presented to each of the commissioned officers and midshipmen who distinguished themselves, it is presumed that the President saw what to his mind appeared difficulties of great delicacy, from the peculiar language of the resolution. By the resolution, he was requested to present swords to such only as had distinguished themselves; and all having been represented to him as having acted gloriously, he could not in justice draw with precision a line of discrimination. He felt, it is presumed, a repugnance to the making of a selection, which, by implication, would necessarily have cast an unmerited reproach upon all not therein included. A degradation of that kind might have greatly injured the service, and could not possibly have been grateful to the honorable feelings of the favored officers. I have the honor to be, with the greatest respect, your obedient servant, PAUL HAMILTON. To the PRESIDENT. NAVY DEPARTMENT, _May 17, 1812_. SIR: In pursuance of the resolution of Congress of the 3d March, 1805, requesting the President of the United States to cause a gold medal to be struck, emblematical of the attacks on the town, batteries, and naval force, of Tripoli, by the squadron under your command, and to present it to you in such manner as in his opinion would be most honorable to you, the medal, which will herewith be delivered to you by Lieutenant Jones, has been struck. You will receive it, sir, as a testimony of your country's estimation of the important and honorable services rendered by you; and you will be pleased to accept an assurance of the great pleasure I have in the honor of presenting it to you. I have the honor to be, with great respect, sir, your most obedient servant, R. SMITH. To Com. EDWARD PREBLE. From the records of the Navy Department. PAUL HAMILTON. After some conversation as to the proper course for this business to take, it was referred to a select committee, to consist of seven members, to consider and report thereon. Mr. QUINCY, Mr. RANDOLPH, Mr. ROANE, Mr. LACOCK, Mr. TROUP, Mr. EMOTT, and Mr. DINSMOOR, were appointed the committee. MONDAY, December 28. _Public Lands--Cash System and Reduction of Price._ The House resolved itself into a Committee of the Whole on the report of the Committee on the Public Lands, made on the second instant, respecting an extension of the time limited by law for the payment of lands purchased of the United States. The report concludes with the following resolutions, the adoption of which the committee recommend: "_Resolved_, That such part of the laws for the sale of public lands as allow a credit on part of the purchase money, be repealed; and that the price at which lands shall be offered in future shall be one dollar and twenty-five cents per acre. "_Resolved_, That in future sales a portion of the public lands be offered in tracts of eighty acres. "_Resolved_, That two years be given in addition to the time allowed by law to the purchasers of public lands, whose time of payment shall have or may expire on or before the first day of January, 1814, on condition that all the interest that has accrued or may accrue on or before the 18th day of March next, shall be paid at that day, and the interest that may become due thereafter shall be paid at the day on which the time, according to existing laws, shall expire for making payment." Considerable desultory debate took place on these propositions; but the committee rose without coming to any decision thereon, and obtained leave to sit again. TUESDAY, December 29. _Additional Military Force._ The House resolved itself into a Committee of the Whole on the bill "supplementary to the act for the more perfect organization of the Army of the United States," and on the bill "in addition to the act for raising an additional military force." The bills having been read through, a motion was made by Mr. DAVID R. WILLIAMS to fill the blanks in the first bill, for the amount of bounty, &c., and the question having been stated-- Mr. D. R. WILLIAMS said, the embarrassment which he felt on the present occasion, was not of an ordinary kind; he was so solemnly impressed with the importance of the subject before the committee, he was fearful its success might, in some degree, depend on his efforts to sustain it; and, feeling that the interest, perhaps the character of his country, might be committed by the decision, he was humbled that its cause could not by him be more ably supported. He felt, however, some confidence from the circumstance that the Military Committee was entitled to the candor of the House, because it had not presented mere fragments, to be acted on in detail, but a system on which to rest the future prosecution of the war. An explanation of its merits, from the relation in which he stood to that committee, was probably expected of him. Without going back to the unavoidable and just causes of the war in which we were engaged, he would presume it was the object of all to terminate it successfully, and that there now remained no other mode than to call into the field a force adequate to the command of every honorable object. The force was abundant throughout the community, to secure, if directed with skill, spirit, and enterprise, our defence everywhere; and, by offence, to make the enemy feel it had become his interest to abstain from plunder and oppression. The character of our Government had been so depressed in Europe, not more by foreign than domestic misrepresentation, as much even within these walls as without them, it had become necessary to make war to place our backs against the wall and prove to European marauders there is a point beyond which we will not recede. This good the war has accomplished; but it has become more than ever necessary to prove that we will not only declare war, but can prosecute it with energy and courageous enterprise. The honor, the character of the nation, require that the British power on our borders shall be demolished in the next campaign--her American provinces once wrested from her, every attempt to recover them will be chimerical, except through negotiation. The road to peace then lies through Canada. When we shall once be in possession of it, peace, honorable peace, the sole object of us all, is secured. But some gentlemen affect a sympathy for the Canadians--why, say they, will you make war on them? They have not injured us. Nor, sir, has the British tar injured us, although he is the instrument of plunder and impressment. It is to conquer the sovereignty of the soil, to raze the British power, to reach, by such means, her profligate and unjust ministry, that war is waged at all--the unarmed will never fall on American bayonets; it is not against the people of either Canada or Great Britain, but against the English subject in arms, that the war is directed. By physical force then alone can we proceed. Having shown the necessity of augmenting the regular forces, it was equally material to provide for filling the ranks, and for keeping them at their full complement when filled. With this view was the 1st section introduced. The greatest evil, incident to the recruiting service, results from the number of persons to whom the public money was necessarily distributed; in proportion to the number of persons with whom it is intrusted, will be its misapplication. To remedy this it is proposed to appoint officers to each regiment, for that particular purpose, in no way different from those already appointed, who shall be employed in recruiting for their respective regiments; these to be under the order of a major, who shall receive and be accountable for the issue of money and clothes for that service. The ranks filled, the presence of all the officers on the present establishment will be indispensable, as in our service the proportion of privates to the officers is greater than in any other service whatever. The new organization which was given to the Army at the last session increased the number of privates in each company, without a corresponding increase of officers. If two lieutenants were necessary in a company, for the purpose of discipline and recruiting, when it consisted of only sixty-four privates, assuredly three are as much so now it is raised to ninety. The recruits, as fast as they are enlisted, may be concentrated under the eye of the major, where they may be exercised and drilled, so that when he joins the regiment, they will be qualified to enter the ranks and face the enemy. One other objection he could anticipate--perhaps those who can sneer at the disasters and misfortunes of the late campaign may object that there is no encouragement to vote additional forces, seeing those which have been already raised have been so illy employed. It becomes us all to be equally faithful to our country, whether her arms are victorious or not; it is in times of discomfiture that the patriot's resolution and virtues are most needed. It is no matter by what party names we are distinguished; this is our country--we are children of the same family, and ought to be brothers in a common cause. The misfortune which befalls one portion, should sink deep in the hearts of the others also. What misfortune so great as the loss of character? If we shall forget our impatience under disgrace, and look back on the events that have passed, with only as much candor as becomes us, this objection must vanish. Under the circumstances in which it found itself, without experience, either in itself or others to guide it, Administration ought not to be censured for the bad military appointments it may have made, however much it may deserve, if it shall retain men in employ, when found incapable to discharge the duties intrusted to him. He was fearless of contradiction in declaring, all our disasters sprung from a cause which no man in the nation could have anticipated. It was next to impossible any human being could have foreseen, much less provided against it. It was with pain and reluctance he felt it his duty to speak of an officer fallen and disgraced; he wished he could discover any cause for the surrender of Detroit, less heinous than treachery or cowardice--between them he saw nothing to choose. Justice will hereafter, if party heat denies it now, pronounce the plan of the campaign, as intrusted to General Hull, easy to be accomplished and judicious in its objects. The commandant was furnished with every means necessary for success--with money, men, provisions, and munitions of war, in abundance. What better mode could have been adopted, to prevent Indian hostility and intercept British supplies of the instruments of massacre? That your army had not been protected beyond the point with which communications could have been maintained, is evident from the events which followed. What was there to mar success? The commandant at Maiden needed only an apology to surrender! What if the other Hull had commanded? Every thing would have fallen before him--great science was not necessary; courage and faithfulness would have accomplished every thing. A train of heavy artillery was not required to batter a breach for the assault; it was not necessary to fire a single gun--not a cartridge need have been expended--the bayonet alone was adequate to have taken Maiden at any hour from the moment the American army crossed into Canada, till its most shameful retreat. The fort was not enclosed--one entire side was open to assault. Yes, sir, had the brave Hull, who bore your "thunder on the mountain wave," directed the valor of the army, he would have poured the storm of victory resistless on the foe. This black deed, without a battle, was consummated in the _solicitous_ surrender of the brave corps which were hastening to his relief; these, too, were arrested and thrown back on the community, leaving the whole Western frontier exposed to savage inroad. Hence all our misfortunes! After this, will it be contended that the accidental appointment of an improper agent shall cause a refusal of the force necessary to drag our drowned honor up from the ocean of infamy into which it has been plunged? Impossible! Economy of life and treasure call for a vigorous campaign--away with lifeless expedients; miserable inertness must be banished--zeal and energy must be infused everywhere. One protracted campaign will cost twenty-fold more than the expenditure now asked for. Let this be the signal for resolution--the first evidence of energetic policy. Let us suppose ourselves leading the forlorn hope, and assume the spirit and vigor characteristic of such an enterprise--the army will feel it--the people will feel it--disaster and disgrace will then disappear. It is to save the public treasure--the people's blood; it is for the reclamation of character, I ask for high bounties and premiums; and, so asking, I hope not to be denied. The question was then taken on filling the several blanks in the first bill, and carried. Mr. H. CLAY congratulated the committee and the nation on the system which had been presented to their consideration, and the prospect of prosecuting the next campaign with a vigor which should insure a successful result. He rose at this time, however, to propose an amendment to the bill, the object of which was to repeal so much of former laws as authorizes a bounty of land to the recruits. He was satisfied that, as respected the nation, this was a waste of its capital, without producing a single provident result. As to the recruiting service, he was convinced, from what he had heard, that it added scarcely any inducement to the recruit--that it had not added a hundred men to the army. He confessed he had been much mistaken as to the effect it had been expected to produce, &c. Mr. C. added many remarks going to support his positions, stating, among other things, that the land would in the end get into the hands of speculators, and the individuals for whose benefit it was intended would derive no advantage from it. Now that it was proposed to increase the bounty in money, he thought it would be a proper occasion to repeal so much of the existing laws as allowed a bounty in land, on which the recruits set generally as much value as if it were located in the moon. Mr. C. concluded by making a motion to that effect. Mr. TROUP and Mr. BIBB stated objections to the motion, as going to withdraw what was certainly, in many parts of the country, an inducement to enlistments, at a time when every means ought to be called into action for the purpose of filling the ranks of the army. Mr. CLAY'S motion was then agreed to by the committee. The other bill before the committee, going to authorize the raising an additional force of twenty thousand men for one year, was then taken up, and the blanks therein severally filled. Mr. PITKIN, adverting to the provision of the bill which gives the appointment of officers below the rank of colonel to the President alone, inquired the reasons why, contrary to the general usage, the Senate were precluded from concurrence in these appointments? Mr. WILLIAMS stated that the motive of the committee in proposing this provision was, to avoid the delay incidental to the minor appointments, which could be much more easily and effectually made by the colonels of the regiments, respectively, who would be personally acquainted with, and responsible for, the good conduct of those who were appointed. Mr. TALLMADGE moved to strike out the section of the bill which directs the manner in which the company officers shall be appointed. He said he had hoped that the committee would have risen and given at least one day for consideration; that they would have maturely weighed and deliberately made up their minds on this question. It is true that, in 1798, there was a power given to the President of the United States to appoint all officers for ten thousand men under the rank of field officers; but the appointment of all field officers was retained to the President and Senate. Mr. T. said he knew how perfectly easy it was to go on step by step, and yield power till it all passed out of our hands. The argument now is a plea of urgency. What was the case in 1798? Not the same as now. Congress had been making preparations on the contingency of war. The language of the law which has been referred to is to this effect: in case of war being declared by any foreign power, or the country actually invaded, then the President shall have the power of appointing these officers. Such a provision was very different from that now proposed. Mr. T. was also opposed to this section in the bill, because he would not pass a bill going, as far as in the power of this House, to take away the power of appointment from the Senate. It was a disrespect he would not offer to them, to call upon them to ratify a law depriving themselves of a power they have uniformly possessed and exercised. The question was taken on Mr. TALLMADGE'S motion to strike out the section, and lost. The committee rose and reported the two bills and the House adjourned. WEDNESDAY, December 30. _Additional Military Force._ The question was then taken on engrossment of the bill for a third reading, and passed in the affirmative--yeas 70, nays 37, as follows: YEAS.--Willis Alston, jr., Stevenson Archer, Daniel Avery, Ezekiel Bacon, David Bard, William Barnett, Burwell Bassett, William W. Bibb, William Blackledge, Robert Brown, William A. Burwell, William Butler, John C. Calhoun, Francis Carr, Langdon Cheves, Matthew Clay, James Cochran, John Clopton, William Crawford, Richard Cutts, Roger Davis, Joseph Desha, Samuel Dinsmoor, Elias Earle, William Findlay, James Fisk, Meshack Franklin, Charles Goldsborough, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, Aylett Hawes, John M. Hyneman, Joseph Kent, William R. King, Abner Lacock, Peter Little, Aaron Lyle, Nathaniel Macon, Thomas Moore, William McCoy, Samuel McKee, Samuel L. Mitchill, Jeremiah Morrow, Anthony New, Thomas Newton, Stephen Ormsby, Israel Pickens, James Pleasants, jr., Benjamin Pond, William M. Richardson, Thomas B. Robertson, John Rhea, John Roane, Jonathan Roberts, Ebenezer Sage, Thos. Sammons, John Sevier, Adam Seybert, George Smith, John Taliaferro, Uri Tracy, George M. Troup, Charles Turner, jr., Robert Whitehill, David R. Williams, William Widgery, and Richard Wynn. NAYS.--John Baker, Abijah Bigelow, Harmanus Bleecker, Adam Boyd, James Breckenridge, Elijah Brigham, Epaphroditus Champion, Martin Chittenden, John Davenport, jr., William Ely, James Emott, Thos. R. Gold, Edwin Gray, Jacob Hufty, Richard Jackson, jr., Lyman Law, Joseph, Lewis, jr., George C. Maxwell, Archibald McBryde, Jonathan O. Mosely, Thos. Newbold, Joseph Pearson, Timothy Pitkin, jr., Elisha R. Potter, Josiah Quincy, John Randolph, William Reed, Henry M. Ridgely, William Rodman, Daniel Sheffey, Richard Stanford, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Laban Wheaton, Leonard White, and Thomas Wilson. So the bill was ordered to be engrossed for a third reading. The House then proceeded to the consideration of the report of the Committee of the Whole on the other bill reported by the committee, entitled "A bill in addition to the act to raise an additional military force, and for other purposes"--the first section of which is as follows: _Be it enacted, &c._, That, in addition to the present Military Establishment of the United States, there be raised twenty regiments of infantry, to be enlisted for the term of one year, unless sooner discharged. [The remainder of the bill is mere detail; the bounty on enlistment sixteen dollars.] Mr. GOLD said this was a bill involving questions of great importance, as well in principle as in its details. There was one feature especially of the bill which required mature consideration; he alluded to the limited period of service of the proposed additional force. There was no pressing emergency to hurry the bill; and he, therefore, moved to postpone the further consideration of it to Monday, which was negatived. _Death of Mr. Smilie._ So soon as this decision was declared-- Mr. FINDLAY rose.--It is my melancholy duty, said he, to announce to this House that my venerable colleague and old friend and associate, JOHN SMILIE, is no more. He departed this life at two o'clock this afternoon. A committee was then appointed to superintend the funeral of the deceased, consisting of Messrs. FINDLAY, LYLE, BROWN, ROBERTS, DAVIS, LACOCK, and HYNEMAN. A resolution was unanimously adopted, requesting each member of the House, in testimony of their respect to the memory of JOHN SMILIE, to wear crape on the left arm for one month. And, on motion of Mr. FITCH, the House then adjourned. THURSDAY, December 31. On motion of Mr. FINDLAY, _Resolved, unanimously_, That the members of this House will attend the funeral of the late JOHN SMILIE, this day, at two o'clock. _Resolved_, That a message be sent to the Senate to notify them of the death of John Smilie, late a member of this House, and that his funeral will take place at two o'clock, this day. And then the House adjourned. SATURDAY, January 2, 1813. _Additional Military Force._ The House resumed the consideration of the report of the Committee of the Whole on the bill in addition to the act for raising an additional military force. The amendments made by the House having been agreed to, the question was stated, Shall the bill be engrossed, and read a third time? Mr. MOSELY said that, in stating concisely some of the reasons which would induce him to vote against the present bill, he should not attempt to enter into a consideration of the justice or expediency of the war, nor the policy of continuing it. War is declared, and it appears to be the determination of those who have the control of our public concerns to prosecute it with the utmost vigor; yes, sir, with a vigor that, within twelve months from the enlistment of the twenty thousand men to be raised by this bill, we are told must bring it to a successful termination. Really, Mr. Speaker, when I listened to the confident assurance of the honorable Chairman of the Military Committee, that with these twenty thousand men, in addition to the troops already raised, and voted to be raised, we should in a single campaign be able to conquer Canada, Nova Scotia, and New Brunswick, and that the object of all these conquests was to procure an honorable peace, I almost felt myself persuaded as a peace man to join the honorable gentleman in his project of fighting for peace one year, with such a certainty of obtaining it at the expiration of that period; but unfortunately I could not but recollect the fate of similar assurances made on former occasions. When we were about declaring war, I very well remember that we were told with equal confidence by gentlemen anxious to engage in it (and who would listen to no arguments, even for delay, against the measure) that we had only to declare war, and Canada would, in the course of a few months, at most, be ours; that the militia alone, with the aid of a very few regulars, would be competent to the conquest of the whole country, except the fortress of Quebec; and that that must very soon fall of course. An honorable gentleman from Vermont (Mr. FISK) informed us that the people of those Provinces would almost conquer themselves; that they were at least pre-disposed to be conquered--to use his own expression, that they were "panting" to participate in our liberty. Experience has now proved the fallacy of these predictions. Gentlemen must now be convinced that Canada is not to be conquered quite so easily as they had imagined--that it is not to be subdued with a few thousand militia, regulars, or volunteers, though aided by proclamations. I mention proclamations, because they seem to be considered as an indispensable auxiliary on all great emergencies. What can be done by proclamation, I will readily concede we are competent to do. No nation, I believe, ever arrived at greater perfection in the art of proclamation-making than we have done; and if history is faithful to record them, we shall in this particular at least bear the palm from all the world. Sir, it can afford pleasure to no man, who feels as he ought for the honor and interest of his country, to dwell unnecessarily upon the disasters and disgrace which have everywhere attended our military operations from the commencement of the war to the present time. I mean upon land; for to our little Navy too much praise cannot be given. Our gallant seamen have not only afforded to their countrymen examples of valor worthy of imitation, but they have also taught us a lesson of wisdom, by which I am happy to find we have manifested a disposition to profit. But, sir, while gentlemen must feel mortified at the miserable termination of all our boasted military exploits thus far, and might wish to draw a veil over the disgraceful scenes which have taken place, it cannot be done; it would be unwise to attempt it. We ought rather to look at the causes which have produced our misfortunes, and pursue a course in future which may not expose us to similar evils. Mr. GOLD said the annals of this Government, the last six months, commencing with the declaration of war, would be found the most interesting, the most deplorable. In that period, we have seen a war declared, precipitately and prematurely; for, notwithstanding all the arguments urged on that occasion, with so much zeal and eloquence, time has dissipated all; the illusion has vanished; your army, so confidently expected, did not, under the magic of that declaration, spring into existence; the condition of your enlistments would not, I apprehend, at this hour, justify the declaration of war. We have seen, sir, that war conducted in a manner well to comport with the spirit in which it was declared; disaster upon disaster in rapid succession have followed; the tone and heart of the country broken; universal disgust at the past, and deep concern and anxiety for the future, prevail everywhere. And what, Mr. Speaker, is now proposed for the future--what is to retrieve our affairs--on what are our hopes to rest? An army of twelve-months' men! A broken reed! An army and term of service, which well nigh lost the country in the Revolutionary war; an army which in every step and stage of that war received the uniform and reiterated censure and condemnation of Washington, and every intelligent officer of that period; an army that stands recorded by every historian of that war with deep reproach and reprobation. Such is the foundation of our future hopes; shutting our eyes upon the lessons of experience, we live but to repeat former errors and renew our sufferings. Shall we never learn, that a soldier is not the creature of an hour; that he must be seasoned to the hardships of war; that to remove your recruit from his fireside, from his plentiful board, and all the comforts with which he is surrounded, to the theatre of service, there to sleep on the ground in tents, with two or three articles of subsistence only, is to give him up a victim to disease, to consign him to the grave? This precise result is presented to the mind by the melancholy review of the last campaign; disease and death have walked abroad in our armies on the frontier; they have been swept to the grave as by the besom of destruction. It has not stopped with your army; the frontier inhabitants, infected by the diseases of the camp, fly from the deadly theatre as from a destroying angel! Shall we never learn the difference between our situation, and that of nations who have a competent military establishment, sufficient at all times for both offensive and defensive operations? The slender Military Establishment of the United States, whilst it consults economy, and favors the genius of the Government, forbids a hasty resort to war, especially extra-territorial and offensive war; time for preparation, after the measure is resolved on, is indispensable; and a disregard of our situation in this respect cannot fail to induce defeat and disaster--to produce such a campaign as has just now closed. But, Mr. Speaker, wherefore change the term of enlistment, from five years, or during the war, to one year? The sole avowed object of the war by land was the conquest of the Canadas. Are you at this hour nearer your object than on the day you declared war, or has that object, with a steady and sure pace, constantly receded from you as you have advanced in the war? Is Canada so far conquered that you can now reduce the term of enlistment? It is impossible to shut our eyes on the past; while all is disgust and despondency with our own citizens--sick of the past, and concerned for the future; while every post brings to the Cabinet fearful and alarming changes in the sentiments of the people under this ill-fated war; your enemy, the Canadians, take courage, their wavering sentiments have become resolved, and union in defence of their firesides, the land that gives them bread, is spreading and cementing all in the patriotic vow. There was a time, sir, when you had friends in the Upper Province; there were many who wished well to your arms, and would have greeted your approach, but that ill-fated policy which precipitated every thing, which in zeal for the end overlooked the means, has blasted all our hopes from that quarter. The Canadian, while he knows your power, distrusts your wisdom and your capacity to conduct the war; he dares not commit himself, his all, to such auspices. Hence, sir, difficulties thicken on every side, and at least three times the force is now necessary to effect the conquest, which would have been required at the commencement of the war. Have we made an impression on the Prince Regent and his Ministry? are they now more disposed to succumb and accept your terms than before the war? How stand the people of the British Empire? Instead of their coercing the Government into our terms, which we fondly anticipated, the late election to Parliament shows them disposed to go hand in hand with the Government in resisting our claims and inflicting on us all the evils of war. "Maritime Rights" are echoed and re-echoed with applause throughout the Empire. Such, sir, are the bitter fruits of your policy, and to what farther point the same hand shall conduct the destinies of the country, remains to be seen. I seek not to aggravate the misconduct of the war, nor to commend our enemies, but only wish, sir, that we may see things as they are, our actual situation, and thus look danger in the face. Do you persevere in the conquest of Canada? Pass not the barrier with an army of less than forty-five or fifty thousand men: if you do, in my apprehension, the defeats and disasters of the past campaign will be visited upon you; another army will be made to pass under the yoke, and at the end of the year, you will find yourself still further removed from your object. The tug of war is now placed fairly before us, we cannot advance without meeting it. Such, Mr. Speaker, are the grounds on which I object to this twelve-months' army; it is not adapted to the professed object of the war, the conquest of Canada. Is there, sir, any other object in contemplation of the Government; any other land of leeks and onions, which Heaven has given us, or to which our destinies lead? Is the South of easier access than the North, and is the circle of hostility to be extended to that quarter? We profess a pacific policy; moderation and justice are our boast; let us beware how we commit to the hazard this high and enviable character; how we yield, on specious grounds, to the mad and destructive policy which we reprobate in others; a policy which has in all periods overwhelmed nations with calamity, and swelled the tide of human misery. I fear there are points in our neutral course, in our relative conduct towards Great Britain and France which will not bear examination. You proclaimed the Berlin and Milan decrees revoked, and put upon Great Britain the threatened alternative of non-intercourse. Was the fact so? You took a promise for the fact; you proclaimed the fact, while France herself, the author of the deed and party to be benefited, denies and disowns it as done at the time. Here was a fatal error, a departure from the straight line of justice; and when our error in this was palpable to all the world, we gave no explanation, no excuse, but persevered in a measure which led to war. It is this course, sir, this departure from even-handed neutrality between Great Britain and France, that has lost you the support of your own citizens to a great and alarming extent, and at this moment sustains the British Ministry in the hearts of Englishmen. It is this belief of our Government's leaning to France, that has carried that Ministry so triumphantly through the late elections to Parliament. If any thing could add to the gloom and sicken the mind under the prospect before us, it is the inauspicious conjunction of events. America and France both making war at the same time on Great Britain; we making the enemy of France our enemy, and this at the ill-fated moment when the all-grasping Emperor of that country is rolling a baleful cloud, charged with destruction, north upon the Russian Empire; upon a power always just to America; upon our truest and best friend in the European theatre. Against such a friend, at such a period, we have beheld the march of the Corsican through rivers of blood; his footsteps are traced over the ashes of the proudest cities, and he sits himself down, at length, at Moscow, like Marius over the ruins of Carthage. The question was then taken on Mr. CLAY'S motion, and negatived. Mr. MACON moved to strike out one, and insert five years as the term of enlistment. He regretted as much as any one the disasters which had befallen the country; and there was but one way to obviate their effects, and that was by rising superior to them, as a part of the nation had already done--he meant the Western country, where a patriotism had been exhibited equal to that which might have distinguished Rome in its best days. Their zeal was equal to their bravery--and the only drawback on their enterprise was the difficulty of finding something to eat in the wilderness. We must rise after reverses. What, sir, said Mr. M., would have become of Rome, had she desponded when Hannibal defeated her armies? She rose upon it and became the mistress of the world. What would have been the situation of our cause in the Revolution, if, after the British successes in Jersey, we had desponded? But the men of Pennsylvania and New Jersey rose on it, and victory and triumph followed. Our object now ought to be to recover the ground we have lost, and meet the enemy with troops that will insure success. We are told, sir, this war has united England to a man. Sir, I never expected aid from our enemies. Let us follow so good an example, and unite to a man; let us remember the old Continental maxim--"United we stand, divided we fall." If we were as united in defence of our rights, as England is in her usurpations, this war would not last a single campaign--and I hope in this respect we shall, at least, learn wisdom from an enemy. The calculations about one or two campaigns, however, in present circumstances, are visionary. We have engaged an enemy not in the habit of yielding very soon. But, if we were to unite, the question would soon be settled. The cause and object of this war has been more concisely stated by one of those actively engaged in it, than by any other person--I mean Captain Porter's motto--"Free trade and sailors' rights;" no man could have given a better definition of it. It appears to me that one part of this continent ought to be zealous for the rights of seamen--another part for a free export trade; and, if we were, as we ought to be, united, the war would be carried on with energy and with success. I agree with the gentleman from New Jersey, that this thing is not to be done by paper men. My opinion is, that the best thing we can do, is to raise men for five years. Let the Legislature of the country do its duty. If the thirty-five thousand men, now authorized, be not enough, let us get as many as will be adequate to the end we propose. Gentlemen have thought proper to review former transactions. I would be willing to pass them over. I believe almost every measure adopted by the General Government would have had its destined effect if adhered to. You have always got the better of the argument; you have better proclamations; but what avails all this? Britain has impressed your seamen, and given you blows for good words. You have been heretofore told your paper measures were worth nothing: now that it is proposed to give blow for blow, what is said? That you are departing from the pacific system, which the same persons before reprobated, and to which they have become friendly only after every attempt at pacification has failed. Sir, we are now engaged in war, and we must succeed or we must yield the rights of sailors and free trade. Does any man doubt that the war is justly undertaken? Is there a man in the nation--I care not of what political sect, many as there are--who believes that the war is not undertaken on just grounds--that we had not borne with their indignities till we could have borne them no longer? After plundering your property and impressing your seamen on the ocean, their agents have been sent into this nation to sow divisions among us, who ought to be but one family. What crime has been left undone? what injury have we not suffered? Could one be added to the catalogue? It seems to me not. No man loves peace more than I do, and if it had not been for Great Britain sending her agents to our firesides, I do not know but I should have voted against the war. It seemed to me like an attempt on a man's daughter. Not content with vexing and harassing you whenever you went from home, they came here to put strife into your family. You have been told that the Prince Regent and his Ministers are firm. Sir, we never calculated on their receding, but on the energies and force of the nation to obtain redress, and if we had been united, we should have equalled our most sanguine expectations. Let us follow their example, and determine to maintain our national rights, as they do to maintain their usurpations on them. Mr. M. CLAY seconded the motion of Mr. MACON to strike out "one year" and insert "five," as the term of enlistment. He said an army ought to be seasoned before it was carried into the field. We have heard much said, observed he, about sickness in your army; much of the sickness, some time ago, at New Orleans, and much lately of the sickness at Plattsburg. Have you ever heard of an army on earth that was carried into the field before it had been seasoned in the camp? It must, to be good for any thing, be first disciplined in camp, and become inured to the mode of living and the fare of soldiers. It will take some time to season men to the change in their mode of living which must take place on going into camp. It will take a year to prepare them for the field. Without discipline they will be useless. Your seamen are brave and successful because they know what they go to sea for. Take a landsman on board a ship, and what sort of a sailor will he make? Such as the French have on board their vessels. We take no man into the Navy but who understands his business and the purpose for which he goes there, and we see the effects of it. I do not wish it understood, sir, if I vote against the bill, that I am opposed to the war. No, sir. It is a righteous war, into which I go with hand and heart. We may differ about the mode, but that is all. I speak from experience more than from any thing else. Let us raise a sufficient army to serve during the war, be it long or short. It is absurd to suppose that we shall not succeed in our enterprise against the enemy's provinces. We have the Canadas as much under our command as she has the ocean; and the way to conquer her on the ocean is to drive her from the land. I am not for stopping at Quebec or anywhere else; but I would take the whole continent from them, and ask them no favors. Her fleets cannot then rendezvous at Halifax as now, and having no place of resort in the North, cannot infest our coast as they have lately done. It is as easy to conquer them on the land as their whole navy could conquer ours on the ocean. As to coping with them at sea, we cannot do it. We can annoy them, but not meet them on the open sea. I would meet them and hurt them, however, where we can. We must take the continent from them. I wish never to see a peace till we do. God has given us the power and the means; we are to blame if we do not use them. If we get the continent, she must allow us the freedom of the sea. I hope, sir, the amendment of my friend from North Carolina, going to make this army more efficient, may be adopted. Mr. PLEASANTS said, before the question was taken, he wished to submit a few of the reasons why he was opposed to the amendment. The question before the House, if he correctly understood it, was not, what were the best materials of which to make an army; whether men for the war, for five years, or for twelve months; but the question was, what is the kind of force, and for what length of time can you raise an army to take the field at the earliest period? I hesitate not a moment, Mr. P. said, to declare, that if it were within the compass of our ability to raise an army for five years by voting it, I would authorize it. Not a moment should I doubt on the subject. The history of the world is strongly in favor of such an army. But we perfectly know, from the progress of the recruiting service, that we have already authorized as many men of that description as we shall probably be able to raise. This force is wanted to render the next campaign efficient. I consider the bill merely as a substitute for the volunteer system heretofore pursued. Of what materials will this army be composed? Of young men ready to volunteer their services for one year in the form of regulars; and in ninety-nine cases out of a hundred, men will enlist in this corps who would not enlist for five years, or for the war. I am sanguine in the opinion, that this measure, if now adopted, will do away the defects of the present volunteer system, and I am fully of opinion, that under it, a force may be drawn into the field ready to act efficiently in the next campaign. I am not one of those, sir, notwithstanding the accounts we have heard of our disasters, who despair of the Republic. If we turn to history we shall find that we have never engaged in any war in which we have come out better in the first campaign than we have in this. Look at the war undertaken under the auspices of Gen. Washington against the Indians. What was the history of it? We all recollect the campaign under Harmar, and its bloody scenes. The campaign under St. Clair cannot be forgotten. We then suffered defeat upon defeat, disaster upon disaster, in the course of the war, which was not terminated till the treaty of Greenville, in 1795, though it may be said to have virtually terminated by the defeat of the Indians by General Wayne, which occurred previous to the treaty. If this country be willing to go into the contest heart and hand, we shall in a very short time demonstrate to the enemy all we want to convince her of, that it is in reality her interest to be at peace with this country. I hope, sir, the motion to amend the bill will not prevail. I am perfectly convinced that the bill as it is will enable us to call a valuable force into service, and I am sanguine in the hope, that, with its aid, together with the other force we shall have, we may clear the continent of the enemy's dominion in one campaign, though I do not undertake to predict that we shall. The question was then taken on Mr. MACON'S proposed amendment, and lost. The question recurred on the passage of the bill to a third reading. Mr. PEARSON said, not unfrequently it happens, Mr. Speaker, both in private and political life, that men of the clearest perceptions and most correct motives, experience much difficulty and embarrassment in determining on the course best to be pursued, or the application of means best calculated to produce a given object. The object most devoutly wished for by myself, and, no doubt, equally desired by every honest and honorable man in this community, is, that my country should once more be restored to the enjoyment of peace. Under the pressure of existing circumstances, involved in a war with a powerful nation--a war now prosecuted for a doubtful, or, at least, strongly controverted question of national right--a war, the prosecution of which, so far as relates to our military operations, has everywhere, and on all occasions, been attended with disgrace, defeat, or disaster; under such circumstances, I confess, sir, I am not free from embarrassment in determining on the course demanded by genuine patriotism, or best calculated to restore the blessings of peace to the country. I rejoiced to hear the honorable Chairman of the Military Committee (Mr. D. R. WILLIAMS) declare, the other day, that his object was also peace. It must be a source of gratification to the country to learn that some of the strongest advocates for the declaration of war begin now to think and talk of peace. The honorable gentleman, however, urges the passage of the bill under consideration, (which authorizes the enlistment of twenty thousand additional regular troops for one year; and provides for the appointment of proportionally an unusual number of officers, with all the accompanying paraphernalia of an army,) as the means best calculated to produce the end in view. Did I believe, sir, that the passage of this bill, or (what is more difficult and less likely to happen) the actual enlistment of the proposed additional force would secure to us our object, I would not only consent to give this force, but ten times the number, if it were by force alone to be obtained; but when I reflect on the special and sole cause for which it is avowed the war is now prosecuted; when I consider the relative strength, situation, and disposable force, by sea and land, of the two nations, and especially when my recollection is assailed (for we cannot, nor ought we to close our senses against such damning facts) with the heretofore scanty enlistments; the confusion and insubordination which has pervaded many parts of your army; the extraordinary expense already incurred, and the uniform disasters which have marked all your military operations, I cannot bring my mind to the belief that the force now proposed can produce any desirable effect. Mr. Speaker: As much as I was opposed to the declaration of war, and as much as subsequent events have convinced me of the correctness of the vote I gave on that momentous question, it is not my purpose on this occasion to question the policy of that unfortunate act. My mind is bent on peace; to that object my efforts are directed. The impression is strongly fixed on my understanding, that this war can be terminated with honor and advantage to this nation, without the further effusion of human blood. If so, surely no Christian will deny but justice, humanity, and sound policy demand that nothing should remain undone, on our part, to stop this career of carnage and bloodshed. I have said, sir, that it is my impression that this war can be terminated with honor and advantage to this nation, without a further appeal to arms. In stating this opinion, I do not mean to be understood as identifying the honor of the nation with the honor of those by whom the war was declared; or, in other words, I do not admit that the national honor rests solely in the hands of those who may happen to be in the Administration, or who may happen to constitute a majority in Congress. No, sir, this is an elective Government--the power and ultimate responsibility rest with the people; they cannot be dishonored unless they pertinaciously approve of unwise or wicked measures, and continue to support the authors of such measures. It is, therefore, not with me a primary consideration, in the suggestions I am about to make, how far the honor or reputation, for political wisdom, of any individuals may be affected by the adoption of the plan for peace which has occurred to my mind. I do not know that any honorable gentleman will be affected by it, should it be adopted. I hope he will not; to me it is perfectly indifferent who are in power, so that the affairs of the nation are well conducted. Mr. Speaker: Whatever may have been the original causes for the declaration of this war, we are now taught to believe that the question in contest is reduced to a single point. The British Orders in Council were repealed on the 21st of June, three days after our declaration of war; and, of course, without a knowledge of that event, the blockade of May, 1806, had long ceased to exist. The sole avowed cause, therefore, remaining, and for which the war is now carried on, is the practice of impressment from on board our merchant vessels. This subject has for many years engaged the attention of both nations; it has been a fruitful theme of execration and declamation for almost every editor and orator of the age. Great as our cause of complaint may have been, (and I am not disposed to palliate it,) it must be admitted by all who understand the nature and true bearing of the question, that it had been subjected to much exaggeration. Permit me, sir, to remark, that notwithstanding the importance, the difficulty, and delicacy which have been justly attributed to this subject, and the unwillingness at all times manifested on the part of the British Government to abandon or derogate from the _abstract_ right of impressing her own seamen from on board neutral merchant vessels, it is very far from being certain that she has not been willing to enter into such arrangement with this Government, as would place the question of impressment on a basis both safe and honorable to this nation. By a reference to the correspondence of Messrs. Monroe and Pinkney with the British Commissioners, which preceded the treaty concluded by those gentlemen in the year 1806, but which was unfortunately rejected by the then President, it is evident that the interest of impressment was, in the opinion of those gentlemen, placed on a footing well calculated to secure our own seamen from the abuse against which we had complained, and against which it was our duty to protect them. This opinion was not only expressed in forcible and decisive language at the time of entering into the arrangement, but repeated by Mr. Monroe more than a year after, in a formal letter to the Secretary of State. The language of that gentleman, now your Secretary of State, is peculiarly emphatic, and must be within the recollection of every gentleman in this House. Without troubling the House with the reading of the documents referred to, it is sufficient for me to state, that your present Secretary of State did, in a letter addressed to Mr. Madison, dated February 28, 1808, declare "that he always believed, and did still believe, that the ground on which the interest of impressment was placed by the paper of the British Commissioners of the 8th of November, 1806, and the explanations which accompanied it, was both honorable and advantageous to the United States." Thus, sir, as we have conclusive evidence of a disposition on the part of the British Government, at one period at least, to advance considerable length towards an adjustment of this long-contested question; and as we have no evidence that different principles and claims are now asserted from those then advanced; I think it fair to conclude, that it is still in our power to put an end to this controversy with safety to our seamen, and advantage to the nation. Instead, then, of passing this bill, and spending the blood and treasure of our countrymen in the prosecution of this war, I conceive it our duty to make an effort for the sanction of our just rights, and the restoration of peace, without a further appeal to force. It is my decided opinion that such an effort, if fairly and liberally made by this House, and the Executive branch of the Government, would not fail in producing the desired effect. The peculiar nature of the question, which now constitutes the sole object for continuing the war; the intimation given by the Executive in the correspondence with the British Government, since the declaration of war, together with the opinions stated by Mr. Monroe and Mr. Pinkney, in their letter to the Secretary of State of January 3, 1807, all tend to confirm me in the belief, that it is the duty of Congress to pass a law which would not only check desertions from the British service, by excluding persons of that description from employ in our service, but also deprive the British Government of the apology alleged for impressing American seamen, by excluding British subjects from the commercial and public service of the United States. Having alluded to the letter of Mr. Monroe and Mr. Pinkney of the 3d of January, 1807, I will take the liberty of reading from it a short extract. After stating the opinion they had formerly expressed, that although the British Government did not feel itself at liberty to relinquish formally, by treaty, its claim to search our merchant vessels for British seamen, its practice would nevertheless be essentially, if not completely, abandoned, they observe: "That opinion has since been confirmed by frequent conferences on the subject with the British Commissioners, who have repeatedly assured us that, in their judgment, we were made as secure against the exercise of their pretension by the policy which their Government had adopted, in regard to that very delicate and important question, as we could have been made by treaty. It is proper to observe, however, that the good effect of this disposition, and its continuance, may depend, in a great measure, on the means which may be taken hereafter by the Congress to check desertions from the British service. If the treaty is ratified, and a perfect good understanding is produced by it between the two countries, it will be easy for their Governments, by friendly communications, to state to each other what they respectively desire, and in that mode to arrange the business as satisfactorily as it could be done by treaty." Thus, sir, had the treaty of 1806 been ratified and a good understanding been produced between the two countries, Congress were warned, even in that event, that it was their duty to lend their aid in rendering effectual and perpetual any arrangement which might be made on this subject of impressment. As to the late communications from the Executive department, made to the British Government, since the declaration of war, it is not my intention at this time to enter into a particular examination of their merit or demerit. I will barely remark, that to me they present a novelty in the history of war and diplomacy. Propositions, alleged to be of a pacific nature, made in six days after the declaration of war! Such a procedure (much as I desire peace and much as I was opposed to the war) is to my mind, to say the least, extremely extraordinary, and its policy incomprehensible. It is the more so from the circumstance of a British Minister being on the spot at the moment of declaring the war and keeping up a continued correspondence with the Secretary of State to the last moment of the existence of peace. Under such circumstances I should conceive each nation ought to have known the _ultimatum_ of the other and not waited for the form of a declaration of war, to resume the negotiation and give a new shape to their proposition. I confess that I am not surprised at the result of this war negotiation--every thing was demanded to be yielded by our enemy, for which the war was declared, even as a preliminary in the first instance to an armistice, and in the second instance as preliminary to a negotiation. The equivalent offered on our part was of a nature which it was not within the province of the Executive to confirm, and, of course, depended on what Congress might or might not do on the subject. In addition to this, our agent in London, through whom those propositions were made, did not possess regular and competent powers, and was considered by the British Government as incompetent to act with them on such a subject on equal terms of obligation and responsibility. Whatever, therefore, may be my opinion in relation to those late propositions, and however illy calculated they may have been to produce any desirable result, I am far from considering them unworthy the particular attention of this House. I allude particularly to the equivalent proposed as an inducement for the discontinuance of the practice of impressment. Here, for the first time in the whole history of the long-protracted discussion on this subject, it is intimated that something effectual will be done on our part to prevent the cause of the abuse of which we complain--a promise is given, in the event of obtaining the concessions demanded, that a law would be passed by Congress to prohibit the employment of British seamen in the public or commercial service of the United States. This, then, is what I ask you now to do--pass a law effectually to exclude all British subjects from the public and private maritime service of the United States; let the law be well guarded against the possibility of violation or evasion; and let us be determined rigidly to enforce it; place this law in the hands of your Executive; let him immediately appoint one or more honest, able, independent commissioners; men who neither have nor expect an office; men in whom the nation, without regard to party, would be willing to confide; give them ample powers to form a treaty or arrange the sole question which is now the pivot on which this war depends. Do all this; do it faithfully, and I venture to predict you will obtain a peace, and secure your just rights more speedily, more effectually, and more satisfactorily to the people of this country, than by all the military operations in the compass of your power. MONDAY, January 4. EDWARD HEMPSTEAD, returned to serve as the Delegate in this House from the Territory of Missouri, appeared, produced his credentials, was qualified, and took his seat. _Additional Military Force._ The House resumed the consideration of the bill for raising for one year an additional military force of twenty thousand men. The question was stated on the engrossment of the bill for a third reading. Mr. BRIGHAM.--Mr. Speaker, the bill under consideration, if passed into a law, will deeply affect my constituents and the public in general. It provides for prosecuting this war on a more extensive scale--it is a kind of second declaration of war. The objects of conquest are multiplied; the field of operation is enlarged; the Army must be increased with the addition of 20,000 regular troops; and enlistments encouraged by additional bounty and wages. Sir, this is the system of arrangement to prosecute the scheme of foreign invasion. One error frequently prepares the way for another; we are now unhappily involved in the calamities of war, and the question is, how we shall prosecute and support it. Mr. B. said he had been uniformly, and in principle, opposed to this war, and of course opposed to all the measures connected with it; that, in his opinion, this war was both politically and morally wrong; that it was declared without suitable preparation, without necessity, without an army, without adequate resources, and without unanimity; it has been prosecuted without success; we have also gained nothing but loss, defeat, and disgrace; the people are alarmed at the loss of their peace, distressed with the fruits of the war, and have serious apprehensions of what may be the future measures of Congress on this subject. Sir, continued Mr. B., this war is of an offensive character; it is a war of conquest, totally inconsistent with the spirit and genius of our constitution, and, if prosecuted in the present divided state of the country, I fear it may be fatal to our most valuable institutions. Republics, sir, ought never to be engaged in a foreign, offensive war; they are calculated only for defensive war. Sir, there is something unaccountable, that the disposition to prosecute this war should increase, as the causes of the war decrease, and the means and ability to carry it on lessen. The war which we now have on hand is predicated principally on the Orders in Council. The impressment of seamen, during the last session of Congress, was considered of minor importance and as a proper subject of negotiation between the two nations, and was so considered in the days of General Washington, in those of Mr. Jefferson, and why not now by Mr. Madison? Sir, the Orders in Council which interfered with our neutral rights are revoked. The President, in his Message at the commencement of this session, declared the fact, and the war now rests solely on the subject of impressment. I do not believe that the prosecuting of this war will have a tendency to bring about an amicable and satisfactory adjustment on this subject, and at the end of the war, if it ever ceases, this question of impressment must be settled by treaty. Sir, at this time, and under these circumstances, we are called on to augment our standing army to the number of 55,000 regular troops, to prosecute the war with vigor, and, as some say, for glory. Sir, if this system of warfare is carried into effect, we shall unavoidably create an annual expense of forty millions of dollars; and where is your money to defray this expense? Why, you must take it from the pockets of our constituents, and from those who are opposed to this war; and if you fail of obtaining the necessary loans, you must stop payment; the nation will become bankrupt, and future generations will be loaded with an enormous debt. Sir, can this be for the honor and interest of the American people; can it be for the satisfaction of our constituents; are they in love with this war? Are they prepared to barter away their property and their peace for the hazards and fatigue of a foreign war, which promises nothing but poverty and distress? It is impossible. Sir, it is said that we are now about to make one sublime military effort, which shall do honor to this nation; that with these troops we are to take, not only the Canadas, but Halifax and Nova Scotia, and, for aught I know, East Florida, follow up the Tippecanoe expedition, and exterminate the Indians. Mr. B. said that he never had known the incipient cause nor by what authority General Harrison made his incursion into the wilderness, beyond where the United States had extinguished the Indian titles, and destroyed the Prophet's town, but said that he hoped the time would come when he should know the merits of that enterprise. Mr. B. said if the friends of this bill and of the war could accomplish their darling object, subdue and take possession of the Canadas, and all the other British provinces in North America, in his opinion it would be a great public misfortune--fatal to the civil liberties of the country, and change the character of our Government. Sir, said Mr. B., with these impressions I deprecate the taking of the Canadas, or the other British provinces, as I do the loss of liberty and the ruin of this country. This war cannot be perpetuated and prosecuted without violating the laws of humanity and justice, the laws of religion and morality--and these laws are to be respected as well by nations as by individuals; and we have not only reason to believe, but do believe, that the God of Armies, who superintends the concerns of men, will give success to our arms, or blast our enterprise, according to its moral character. If the Canadas are subdued and conquered, it must be done by force of arms; and what have the inhabitants of those provinces been guilty of, which warrant this Government in putting them to the sword? Sir, they are now inoffensive, and quietly pursuing their own business; they are content under their own Administration; they are protected by their own Government, and are not panting for the liberties of this country, as was vainly supposed the last season, nor do they ask us to relieve them from the oppression of their own Government, which General Hull, in his tender mercy, promised them in his pompous proclamation, on the condition that they would revolt from their rightful Sovereign, and put themselves under _his_ gracious protection; nor were they terrified by the threat of extermination, if found fighting in their own defence by the side of an Indian; nor were they to be seduced from their allegiance by promises which could not be performed. No, sir, nor do they ask any favor but that you cease from troubling. Sir, they will not submit, and they have told you, by their actual resistance, that they will defend themselves, their councils, their firesides, their wives, and their children, their rights and their property; and they are not to be subdued but at the price of blood. And where is your authority, where is your right to go home, invade, and break into a foreign territory, and there establish a slaughter-house for the brave sons of America; there spill your blood, and expend your treasure, destroy cities, and demolish houses, plunder the inhabitants, and waste the substance of the industrious and the innocent? Sir, there is no right but a Napoleon right, and that right is power, and not that which reason approves. Mr. B. said that the war was becoming more and more unpopular in the Eastern States, especially in the State which he had the honor to represent; and they had, in their late elections, come forth and declared it in a voice and language which cannot be misunderstood. And whether there will be a majority in the next Congress in favor of this war was uncertain--he hoped not. Mr. RIDGELY said he claimed the patience of the House while he assigned the reasons that would influence him to vote against the bill now under consideration. He considered the force contemplated to be raised by the bill as unnecessary. The present Military Establishment of the United States consisted of various descriptions of troops; they were the regular army, the rangers, the volunteers, and the militia. The regular army was made up of the Peace Establishment, authorized by the acts of the 16th of March, 1802, and the 12th of April, 1808, containing about 10,000 men, including officers, and of the "additional military force," which was directed to be raised by the act of the 11th January, 1812; these different establishments were incorporated by an act passed on the 26th of June last; and the present regular army of the United States, as authorized by law, consisted of twenty-five regiments of infantry, three regiments of artillery, two of light dragoons, one of riflemen, and one of light artillery, containing in all about thirty-six thousand men, including company officers and privates; of these the President might have not exceeding fifteen thousand enlisted for eighteen months, and the residue enlisted for five years, unless sooner discharged. Of the rangers, there were seven companies by the acts of 27th January, and 1st July, 1812, and about four or five hundred men. By the act of the 6th February last, the President was authorized to accept of any company or companies of volunteers, either of artillery, cavalry, or infantry, who might offer their services to the number of fifty thousand men; their commissioned officers were to be appointed in the manner prescribed by law in the several States and Territories to which they might respectively belong, and they could only, according to the fair construction of this act, be considered as militia, liable to be called on to do military duty at any time within two years after they were accepted by the President, and bound to continue in service one year after arriving at the place of rendezvous. By the law of the 6th of July last, the President was empowered to appoint and commission the officers of the volunteers who had or should offer their services, and to form them into battalions, squadrons, &c., and they were thus converted from militia into a species of regular force. By the act of the 10th of April last, the President was authorized to call on the several States and Territories for their respective proportions of a detachment of one hundred thousand militia; and the call has been made, I believe, on every State and Territory. The present military force, then, of the United States, as authorized by existing laws, consists of upward of one hundred and eighty-six thousand men, all of whom, when in service, are subject to the rules and articles of war. Of these, the militia can only be used in the prosecution of this war for defensive purposes; the regulars and the volunteers may be ordered to act offensively against the enemy. They may amount, as we have seen, to eighty-six thousand men; and if Canada be as weak and badly defended as gentlemen seem to suppose, and the Administration should persist in their determination to conquer it, they should, I think, be satisfied with such a force to obtain an object so easily attainable. But, sir, said Mr. R., our present Military Establishment is certainly sufficient for all purposes of defence; and I wish to see no land forces raised for any other purpose. I have no hesitation in declaring that I should lament to see Canada or any of the British provinces on this continent in our possession, or forming a part of the American Republic. They will never be worth, to this nation, in any point of view, the blood and treasure that their acquisition will cost us. It has been said by the honorable chairman of the Committee on Military Affairs, that there are now in Canada twelve thousand regular troops, and that the militia amount to six thousand. To any thing that gentleman should say, as matter of fact within his own knowledge, I should give the most implicit credit. But his estimate of the militia of Canada must be too low. His sources of information on this point must have been incorrect. The population of Canada (and when I speak of Canada, I mean both Upper and Lower Canada) has been variously stated, from three to five hundred thousand souls; according to no account, I believe, can it be less than three hundred thousand; and, I presume, no gentleman on this floor will say that estimate is too high. Take, then, the population of Canada to be 300,000 souls; what number of militia should this population furnish? We will take the State of New Jersey as a guide for our calculation; according to the census of 1810, the population of that State is 245,255, and its militia, by the return for the same year, 33,740, and the militia bears about the same proportion to the population in the States, generally, as it does in this State. If, then, the militia of Jersey, with its population, amounts to near thirty-four thousand, we may, I think, without danger of contradiction, estimate the militia of Canada (with a larger population) at between thirty and forty thousand; to these add the twelve thousand regular troops, and, in all probability, before we can act offensively against them in the Spring, the number of these troops will be greatly increased, and they may have an efficient force of about fifty thousand men to oppose an invading army. It ought to be recollected, also, that a generous people, contending in their own defence, are actuated by far different and more worthy motives than an army of soldiers can be who attempt their subjugation. The Canadians will contend for their homes, their wives, their children; for every thing that can or that ought to be dear to the human heart. They will be excited in such a cause to the boldest deeds. Instead of traitors, we shall find them true to their country and themselves, and able and ready to exert all their energies in their own defence. If we conquer them, it must be by great exertions, and with immense loss. To subdue a people acting under the impulse of such considerations as will operate on them, will require a force at least double to that which they can oppose to us. But can any man imagine that, if we invade the British colonies, the war will be there? Will the pride of Britain, powerful as she is at sea, and ready at any moment to meet every emergency, permit her tamely to look on and see her provinces wrested from her, without exerting herself with all her energies for their security? Will she make no diversions in their favor? Will she suffer us to carry the war into her territories, and not retort upon us? Does an unprotected seacoast of two thousand miles afford her no opportunities of attacking us? Do our rich and flourishing cities, exposed without defence on the seaboard, to the cannon of her ships of war, furnish her with no objects worthy her attention? Will the city of New York, laid in ashes, atone for the invasion of Canada; or, will the acquisition of Canada compensate to us for the loss of New York? Sir, said Mr. R., ten Canadas, ten times told, would not be worth to this nation that single city. But of what value would these provinces be to us, if they could be easily acquired? Shall we, by their conquest, obtain the objects for which this war is waged? Shall we thereby secure our commercial rights? Not at all, sir. On the other hand, if the British Government would offer them to us, it would be our true policy to refuse to accept them. It is known to everybody that the population of several of the Eastern States is now full, and that great numbers of their citizens are constantly emigrating. The direction this emigration takes, it is also well known, is South and West. This surplus of population of the Eastern States settles on the banks of the Ohio and Mississippi, and carries with it its Eastern habits, and, if you please, its Eastern prejudices. They become connected and united with the people of the South and West. This union and intercourse will tend to render as the brothers of one family the citizens of this extended Empire. The prejudices of the South against the North, and the North against the South, are weakened daily and will be destroyed. The course this emigration takes is just as it should be. The currents flow from the extremities into the centre of the country. The operation is most beneficial to the nation, and tends constantly to strengthen and cement the union of the States. But if the British provinces should be conquered and become incorporated into the Republic, the direction of the emigration from the Northern and Eastern States will be at once changed. It will take a North instead of a South course. It will go just where it ought not to go. The strength of the nation, already too much scattered, will be still more weakened by a further expansion of its territory and population. The Northern and Eastern States, at present possessing more than their proper proportion of wealth, population, and strength, and having different habits, pursuits, and interests, from the Middle and Southern States, will, by the addition of these provinces, and the settlement of their surplus of population in them, acquire a weight and influence that this Union cannot control. It will exist only at their pleasure, and, in a few years, the destruction of this Government and a separation of the States will be the inevitable consequence. Mr. PITKIN rose and said:--Before, Mr. Speaker, we give our sanction to this bill; before we agree to add so large a force to our present army, making the whole number fifty-five thousand men, is it not a duty we owe to ourselves and to our constituents, seriously to inquire into the policy, into the necessity of the measure, as well as into the present state of our relations with that nation against which we have declared war? Almost at the very instant when Congress declared war against Great Britain, the Orders in Council, and the blockade of May, 1806, the most prominent causes of the war, were removed. I have always, sir, considered the Orders in Council as the greatest obstacle to the restoration of harmony and free intercourse between the two countries. Had this obstacle been removed before the declaration of war, no one can believe that the Executive would have recommended, or that a majority in either House of Congress would have adopted a measure always fraught with evils in all governments, and which, in a Government like ours, ought never to be resorted to but in the last extremity. I cannot believe that the President, in that case, would have recommended it, when, on the 26th of July, 1811, through the Secretary of State, he informed the British Minister that, on the revocation of the Orders in Council, the non-importation law would be removed, and, of consequence, commercial intercourse would be restored between the two nations. It would be strange, indeed, if the President should, in one moment, restore a free intercourse between the two countries, and, in the next, recommend to Congress a declaration of war, solely on account of another topic remaining in dispute. And, in case such recommendation had been made, if any confidence is to be placed in the declared opinions of gentlemen, many who voted for the war would not, under such circumstances, have given it their support. Unfortunately for the country, the President did not embrace the opportunity, presented by the repeal of the Orders in Council, to remove the non-importation law, and thereby smooth the way for a complete restoration of harmony between Great Britain and the United States. Sir, this would have been done, and the remaining subject of dispute been left in the same situation as before the declaration of war, to be adjusted by amicable arrangements. But, sir, as this was not done, it remains for us, it remains for the people of the United States, to determine whether they will encounter all the evils, all the calamities of war; whether they will sacrifice the fairest prospects, and the best interests of this rising country, on the point now in dispute with Great Britain. In the few remarks I shall submit to you, sir, and to the House, it is not my intention to go into the consideration of all the original avowed causes of the war; but to confine myself to the new aspect of affairs, presented to us since the declaration of war by the removal of the Orders in Council and blockades. On the subject of impressments, for which alone the war is now to be continued, what, let me ask, is the principle for which our Government contends? It is this, sir: that the flag of the merchant vessel shall cover all who sail under it; or, in other words, that our flag shall protect all the foreigners our merchants may think proper to employ in their service, whether naturalized or not. Before we raise immense armies, before we sacrifice any more of the lives of American citizens, let us inquire-- 1st. Whether the principle, if yielded to us to-morrow, would benefit our native seamen, or would promote the real permanent interests of their country. 2d. Whether there is a probability of obtaining a recognition of this principle by a continuance of the war. The foreigners employed in our service are those who have not been naturalized, and those who have taken the benefit of our naturalization laws. The former constitute nearly the whole: the latter class is very inconsiderable. The foreigners of the first description, of course, were in competition with our native seamen, and either exclude them from employment, or lessen the rate of their wages. In this way, then, the employment of foreign seamen is an injury to our native seamen; and, in a national point of view, it may well be questioned, whether their employment subserves the permanent and solid interest of the country. Is it not, sir, of the first importance to us, as a commercial and maritime nation, especially when it may be engaged in a war with a great naval power, to be able to have a sufficient number of native seamen employed in our service? Seamen, who shall be attached by every tie to this country, and on whom we can depend for its defence in time of danger? This, sir, it is presumed, cannot be denied. If so, is it not the dictate of wisdom and of sound policy for us to give encouragement to our native seamen in preference to those of any foreign country? The situation in which we now are proves the correctness, as well as the importance, of the position. We are now at war with Great Britain. And, at the very time when this war was declared, thousands of British seamen who had not been naturalized in this country, were, and they still continue in our employment. These seamen (I am speaking, sir, of those not naturalized) are now claimed as British subjects, and, indeed, by our own laws, are now considered as alien enemies. Will gentlemen suffer me to turn their attention to this last fact? By a law passed the 6th of July, 1798, it is enacted, that "whenever there shall be a declared war between the United States and any foreign nation or Government, &c., all natives, citizens, denizens, or subjects, of the hostile nation or Government, being males of the age of fourteen years and upwards, who shall be within the United States, _and not actually naturalized_, shall be liable to be apprehended, restrained, secured, and removed, _as alien enemies_." Ought we, sir, to depend upon these men to man our fleets, or to defend our ports and harbors? So far as foreigners of this description are concerned, I do not hesitate to say that it is not for the interest of this country that our flag should protect them, and that I will never consent to continue this war for the maintenance of this principle on their account. It is well known, sir, that not only Great Britain, but that France, and all the nations of Europe, claim a right to the services of all their subjects in time of war. In the exercise of this right, the history of Europe shows that, at the commencement of almost all wars, proclamations have been issued by the belligerent powers, recalling their subjects to aid in the defence of their respective countries. During the present war in Europe, this has been done by Great Britain, by France, and the other belligerent powers. With respect to this claim of allegiance, it is not my intention to enter into the discussion whether, in the abstract, it is well or ill founded. This would lead me too far, and would tend to no practical good. I will, however, observe, that it is a right, a claim, which has been long exercised in Europe, and has been sanctioned and acknowledged by the most able and distinguished European writers on public law. With respect to foreigners, who have been naturalized under our laws, the question is of a more distinct nature, and presents greater difficulties. We ought, undoubtedly, to fulfill all our obligations towards them. What these obligations are, and how far they extend, are questions about which a diversity of sentiment may prevail.--While they remain within our territories, and within our exclusive jurisdiction, they are shielded by the general principle, that all within our dominion and exclusive jurisdiction, are, of course, protected against all claims whatever, and never to be molested in any way without our consent. But, sir, when they go without our territories, and beyond our exclusive jurisdiction, and come within the sphere of the claim of their former Government, the opinion of the best writers on public law seems to be, that the obligation of the country, under whose laws they have been naturalized, does not extend to guaranty them against such claims, unless their allegiance was changed with the consent of their former Government. But, sir, whatever speculative opinions may be entertained on this subject, the number of naturalized seamen is so small, that few, if any, can be of opinion that we ought to have declared war, or that we ought to continue it on their account alone. The whole number of seamen naturalized from 1796 to 1810, as appears by the returns made to the Department of State, is 1,332. This includes those of all nations. What proportion of these were British, or how many of them are now in our service, it is impossible to determine. I presume, however, the number of naturalized British seamen now in our employ does not exceed two or three hundred. Shall we, sir, continue the war for these men? I am aware, sir, that with respect to impressment from our merchant vessels, abuses have happened, that although the right of taking American citizens is not claimed, the British commanders have not been scrupulous whether they took British subjects or American citizens. Sir, these abuses I never can, and I never will justify. I am satisfied, however, that they have been exaggerated. But, sir, let me ask, if we have not really intended to protect foreign seamen under our flag, if we have not been guilty of gross negligence, to say the least of it, towards our native seamen? whether, by our laws, and the practice under them, we have afforded them all that protection and security to which they are entitled? In 1796, Congress passed an act for the relief and protection of American seamen. By this act, the collectors of the several ports were directed, on application, to enter the names of seamen, being citizens of the United States, to grant them certificates, in a form given in the act. In this certificate, the collector is to describe the person of the applicant: also, to declare that, on proof produced to him agreeable to the act, the seaman is a citizen of the United States of America. It is not a little singular that, although the proof of citizenship to be produced to the collector must be agreeable to the directions of the act, the act itself nowhere directs what that proof must be. Every collector, therefore, has, under this act, used his own discretion, or has pursued such directions as he may have received from the Government as to the kind of proof. What, sir, has been the practice under this law? Have those certificates, or protections, as they are commonly called, been confined to _bona fide_ American citizens? No, sir; we cannot, we ought not, to shut our eyes against facts too notorious to be concealed or denied. Under this act, made expressly for the protection of American seamen, every foreign seaman, almost, at the moment of setting his feet on our shores, has obtained a certificate from some collector, that he is a citizen of the United States; and, with this certificate in his pocket, although perhaps a deserter from his own Government, he enters a public or private vessel, as an American seaman. The mode of obtaining proof of citizenship is well understood. Among other modes, some of which are too disgraceful to be mentioned in this place, those foreign seamen will go before a magistrate, and, although hardly able to speak the English language intelligibly, will swear, for each other, that they were born within the United States, and are American citizens. On such proof, a proof of this sort, the collector issues his certificate. It will be recollected, sir, that this subject was brought before this House during the last session, in a case from Philadelphia, when a certificate of this kind was obtained by the most flagrant and avowed act of perjury on the part of a foreigner who had just arrived in this country. It was found, on inquiry, that there was no law, either of Pennsylvania or of the United States, to punish the man for this act of false swearing. Not only have these protections been thus obtained by fraud and perjury, but they have also, long since, been an object of barter; they have been bought and sold, and transferred from one to another, not only in this country, but in foreign countries. To show the extent of this traffic in seamen's protections, permit me to state some facts, of which I have no doubt, knowing the source from whence I have derived them. An American captain having a ship in Bristol, in England, without a crew, he applied to a man who kept a boarding-house for sailors, to procure a crew of American sailors in port; he showed him a great number of American protections, which he agreed to sell him for two guineas each, and with the aid of these to procure him a crew. By high wages, and by suiting these protections to the description of British sailors, he procured this captain his ship's crew; not only so, but when the ship was about to sail, and it was doubtful whether those who had engaged for the voyage would actually go on board, this man actually procured some of a press gang to take them as American sailors, who had deserted from their ships, and put them on board. When we ourselves place no confidence in these certificates, when we know that they are thus obtained by fraud and perjury, can we expect that foreign nations will give credit to them? Instead of being a shield and protection to the real American sailor, they have become a dangerous weapon of offence. If, sir, it is not for the permanent interest of the United States to employ so many transient foreign seamen, we ought long since, not only to have refused these false protections, but to have passed laws for the encouragement of our native seamen, similar to those which have been adopted in commercial countries, and are commonly called navigation acts. This would, in some measure, have relieved us from the evils which we now experience, in consequence of the employment of so many foreign seamen. TUESDAY, January 5. _Additional Military Force._ The House resumed the order of the day on the bill for raising an additional military force of 20,000 men for one year, the question being on the passage of the bill to a third reading. Mr. BOYD.--Mr. Speaker: It is with great diffidence that I address the Chair. When the bill now before the House was under discussion on Saturday last; that is, the then proposed amendment to insert eighteen months, instead of one year, I was offering my reasons why I thought that that amendment ought to prevail; when, unfortunately for me, I was considered as taking too great a latitude, and prevented from connecting my remarks. As there is little difference, in point of principle, as the bill then was and now is, I embrace this opportunity to make up that deficiency, and will now take care to stick as close as possible to the text. Sir, I am opposed to passing the bill to a third reading, because I believe it to be altogether inadequate to the purpose intended to be accomplished by it. Sir, when I last addressed the Chair, I then took a retrospective view of our past expectations, plans, and propositions, from which we expected to derive great advantages. Such were the expectations of that time, that I did not accord with them. Those expectations have not been realized; but, instead thereof, we have met with disappointments and misfortunes. I thought that viewing the errors of the past was the most certain way to avoid the future; and I am not at this time sensible of that being erroneous. Mr. Speaker, I am an old man, and not in the habit of public speaking; and if I have not the faculty of composing my arguments in so connected a form as a lawyer's special pleadings, I hope the House will excuse me, and grant me their indulgence to do it in such form as my capacity will admit of. [The SPEAKER observed that it was unpleasant to the Chair that the gentleman should indulge in such remarks; he had certainly no wish not to give full latitude to debate. Mr. B. said he stood corrected, and was allowed to proceed.] Then, Mr. Speaker, I object, because, in my opinion, it is not calculated to produce the desired effect, or that which is intended by it: that is, to raise a force competent to the conquest of the Canadas in the given time. I will ask how many regiments you have in your present establishment? Say thirty-five, and you add twenty, making together fifty-five: what use is there in multiplying regiments without men? The Chairman did state that from prudential motives, he had thought it inexpedient to give the number now actually in service, or enlisted by the present establishment. Sir, it is not my wish to go into a strict inquiry; the regard I have for the honor of my country forbids me; but I will suppose seventeen thousand, and, I believe, that is large; then there is left officers for eighteen thousand men. Are these not sufficient for the recruiting service? to engage every man who is willing to serve his country? to place a recruiting officer in almost every town and village in the United States? They are; and, therefore, you ought not to create an unnecessary addition. If the present establishment is not full, what is the reason? Either that the pay and bounty are not sufficient inducements, or there is a dislike to the service; your creating more regiments will not remove that difficulty. I am against the bill, because the term of service is too short to answer any valuable purpose. Suppose them intended to operate as a force against Canada. Let us see how that will answer the purpose: You send out your warrants to commence the enlistment of the proposed troops at this time; how long a time, is it contemplated, will be necessary for their enlistment? My opinion is, that you will not have them half full in four months; it is then time to take the field, and they are then raw troops. The honorable Chairman (Mr. D. R. WILLIAMS) states to you the number of troops necessary for defensive operations, according to his calculation, to be ten thousand; deducting that number from the present establishment, supposing it to be full. It is not for me to say how far the present establishment is short of the whole number, or will be at that time; but we know that it is far short; we do not know that it can be filled, and if it cannot, then those calculations are fictitious. He also states to you that the regular force in the Canadas is not to be estimated at less than twelve thousand, and three thousand in Halifax, besides their militia. According to this, and my views, you cannot enter Canada the next campaign with man for man; and surely that is not sufficient for conquest in an enemy's country. But I will suppose that you conquer a part of the country; that part must be garrisoned if you will keep it. In a year from the time of enlistment their term expires, and what becomes of your conquest, without force to keep it, supposing it to be made? Say that the officers will be called into service in four months, and there is some of the men enlisted six or eight months hence; the officers must serve until the expiration of the term of the last man engaged, or a derangement must take place--always a disagreeable occurrence in an army. Sir, if you have not numbers sufficient to bear down all opposition, invade it not: act on the defensive until you have engaged your men, and for a term of time sufficient to answer your purpose; then may you count upon success and honor. I do not say that I believe land conquests will produce an acknowledgment of our rights on the ocean. I believe it will not; but unless you act with great regularity, system, and economy, you cannot avoid it; you must meet with nothing but disappointments and disgrace. Mr. LAW said as he was originally opposed to the war, and the preparatory steps which led to it, he could not admit the principle, _that because war was declared_ he was bound to acquiesce, and lend his aid to promote every plan for prosecuting the war which might be proposed, however wild and extravagant the same might appear. He said he felt it a duty, and he claimed it as a right, (although he was not ambitious very often to exercise the right,) to offer objections to any measures which might be introduced, if he supposed they were not calculated to produce the effect intended, although he might not be in favor of the object itself; or if he believed the measure proposed would be productive of real evil. Now, sir, on this important occasion it would be wise for a moment to look back, and if we can bear the pain of retrospection, consider what this nation once was, what it might be, and what it in fact is. Time was, and that within the recollection of us all, when industry, commerce, prosperity, and peace, gladdened the hearts of this once happy people, and the use of arms was known only as a pacific pastime. The nation, like some individuals, could not bear the intoxicating influence of prosperity. It might have preserved its enviable condition, but it labored and groaned under the weight of national blessings; it submitted to regard the sinister views and malign influence of foreign powers; it listened--fatally listened--to a serpent more fell than the serpent of old. And now how sad is the reverse, let a dejected and impoverished nation answer; in the past, we see departed comforts; before us, we behold ruin and distress. The unhappy crisis to which we have arrived has been progressive. Had the transition been sudden, the nation would have been driven to desperation. We have been often admonished by those who foresaw the present evils; and had we been wise, might have avoided the calamities in which the country is now involved, and from which there is at present no prospect of speedy relief. Sir, we will no longer dwell on times past; we will now briefly notice the causes which were alleged in the manifestoes which immediately preceded the declaration of war, and what was said to be the object, and attempt to show that the bill now under consideration is unnecessary for the attainment of the original object; that it will be injurious to the militia, and may endanger the liberties of the country. As to the causes of the war, without admitting or denying their justice on national principles to justify the act at the time it was declared, he might say that some of the pretended causes have never been seriously relied on by our own Government. The principal one has been wholly removed; and but one of the ingenious catalogue now remains, and that might easily be adjusted to the mutual satisfaction of both nations. And, sir, it ought not to be forgotten, that the act declaring war was carried with great labor and much reluctance; and such was the majority in each branch of Congress that it might well have justified a doubt as to the expediency when it did pass. Besides, a large proportion of the United States were then, and even since have been opposed to the act. And this opposition was not confined to those who have been slanderously reported to be in the interest of Great Britain. The disgust and abhorrence was felt by some of the best patriots and purest bosoms in the country. Experience has also proved that the public sentiment was against the war; witness the feeble ranks of your volunteers, the slow and reluctant march of the militia, and the tardy progress in the recruiting service. Sir, the disgrace and disasters which have hitherto attended the army, have resulted more from a want of confidence in the justice and propriety of the war, than from the lack of talents in those who have conducted the battles, incompetent as they have been represented to command. A nation like this cannot be driven to war. They must feel the justice and necessity of it, and the justice must be so strong as to pierce every heart. This would be felt in a necessary and defensive war; then, indeed, the nation would smite with one arm. Before such a people, roused in such a cause, the veteran legions of Napoleon would be compelled to bite the dust. Such, alas! is not our case. We have a war, without the spirit or unanimity which springs from these causes, and without the pecuniary means of supporting it. Such a war must be disastrous! On what, sir, is the honor of this nation now suspended? On the Navy! that little navy which was despised, neglected, and forgotten, until it fought itself into notice, and rescued the sinking honor of the country. What, sir, was the avowed object of this war? It has ever been said that conquest, with a view of extending our territory, and enlarging our dominion, was not the wish of this Government. The idea of this Republic following the footsteps of foreign ambitious nations, was so repugnant to the genius of the American people, and the constitution under which we live, that few, if any, of the warmest advocates of the war dare avow it. The pretence was to take, or rather to receive Canada; for it was vainly supposed the inhabitants of that province would readily join our standard, on the first invitation. But we must go through the form of conquest to protect them from the charge of treason to their own Government. We were to hold Canada until peace should return, and then it was to be delivered up in exchange for maritime rights. And this it was supposed would be a powerful weapon in our hands in the negotiation. With this view the bills augmenting the Army, raising the volunteers, and transferring the militia, passed. By the present bill, and the project connected with it, the original plan is abandoned with the volunteers and militia, and we are now presented with a compound system of conquest, extermination, and defence. It would seem with the force of fifty-five thousand regular troops, we are to conquer all the residue of North America; exterminate every tawny infidel this side of the Isthmus of Darien, and defend a seacoast many hundred miles in extent from the incursions of the enemy! This is truly a gigantic project. He said he could not give it his aid; and he thought some honorable gentlemen who voted for the war would, when they reflected on the magnitude of the scheme now presented, seize this occasion to retire, unwilling to entail on themselves and posterity the expense and ruin which would flow from the project, if carried into execution. Mr. QUINCY.--Mr. Speaker, I fear that the state of my health may prevent my doing justice to my sentiments concerning this bill. I will, however, make the attempt though I should fail in it. The bill proposes that 20,000 men should be added to the existing Military Establishment. This, at present, consists of 35,000 men. So that the effect of this bill is to place, at the disposal of the Executive, an army of 55,000. It is not pretended that this addition is wanted either for defence or for the relief of the Indian frontier. On the contrary, it is expressly acknowledged that the present establishment is sufficient for both of those objects. But the purpose for which these 20,000 men are demanded is, the invasion of Canada. This is unequivocally avowed by the chairman of the Committee of Military Affairs, (Mr. D. R. WILLIAMS,) the organ, as is admitted, of the will and the wishes of the American Cabinet. The bill, therefore, brings, necessarily, into deliberation, the conquest of Canada, either as an object, in itself desirable, or consequentially advantageous, by its effect, in producing an early and honorable peace.[31] Before I enter upon the discussion of those topics, which naturally arise from this state of the subject, I will ask your indulgence, for one moment, while I make a few remarks upon this intention of the American Cabinet thus unequivocally avowed. I am induced to this from the knowledge, which I have, that this design is not deemed to be serious by some men of both political parties; as well within this House as out of it. I know that some of the friends of the present Administration do consider the proposition as a mere feint, made for the purpose of putting a good face upon things, and of strengthening the hope of a successful negotiation, by exciting the apprehensions of the British Cabinet for the fate of their colonies. I know, also, that some of those who are opposed in political sentiment to the men who are now at the head of affairs, laugh at these schemes of invasion; and deem them hardly worth controversy, on account of their opinion of the imbecility of the American Cabinet, and the embarrassment of its resources. I am anxious that no doubt should exist upon this subject either in the House or in the nation. Whosoever considers the object of this bill to be any other than that which has been avowed, is mistaken. Whosoever believes this bill to be a means of peace, or any thing else than an instrument of vigorous and long-protracted war, is grievously deceived. And whoever acts under such mistake, or such deception, will have to lament one of the grossest, and perhaps one of the most critical errors of his political life. I warn, therefore, my political opponents; those honest men, of whom I know there are some, who, paying only a general attention to the course of public affairs, submit the guidance of their opinions to the men who stand at the helm, not to vote for this bill under any belief that its object is to aid negotiation for peace. Let such gentlemen recur to their past experience on similar occasions. They will find that it has been always the case, whenever any obnoxious measure is about to be passed, that its passage is assisted by the aid of some such collateral suggestions. No sooner do the Cabinet perceive that any potion, which they intend to administer, is loathed by a considerable part of the majority, and that their apprehensions are alive lest it should have a scouring effect upon their popularity, than certain under-operators are set to work, whose business it is to amuse the minds, and beguile the attention of the patients while the dose is swallowing. The language always is: "Trust the Cabinet doctors. The medicine will not operate as you imagine, but quite another way." After this manner the fears of the men are allayed, and the purposes of the Administration are attained under suggestions very different from the true motives. Thus, the embargo, which has since been unequivocally acknowledged to have been intended to coerce Great Britain, was adopted, as the Executive asserted, "to save our essential resources." So, also, when the present war was declared against Great Britain, members of the House were known to state that they voted for it under the suggestion that it would not be a war of ten days: that it was known that Mr. Foster had instructions to make definitive arrangements, in his pocket; and that the United States had only to advance to the point of war, and the whole business would be settled. And now an army, which, in point of numbers, Cromwell might envy, greater than that with which Cæsar passed the Rubicon, is to be helped through a reluctant Congress, under the suggestion of its being only a parade force, to make negotiation successful; that it is the incipient state of a project for a grand pacification! I warn also my political friends. These gentlemen are apt to place great reliance on their own intelligence and sagacity. Some of these will tell you that the invasion of Canada is impossible. They ask where are the men--where is the money to be obtained? And they talk very wisely concerning common sense and common prudence, and will show, with much learning, how this attempt is an offence against both the one and the other. But, sir, it has been my lot to be an observer of the character and conduct of the men now in power for these eight years past. And I state, without hesitation, that no scheme ever was, or ever will be, rejected by them, merely on account of its running counter to the ordinary dictates of common sense and common prudence. On the contrary, on that very account, I believe it more likely to be both suggested and adopted by them. And, what may appear a paradox, for that very reason, the chance is rather increased that it will be successful. I could illustrate this position twenty ways. I shall content myself with remarking only upon two instances, and those recent; the present war, and the late invasion of Canada. When war against Great Britain was proposed at the last session, there were thousands in these United States, and I confess to you I was myself among the number, who believed not one word of the matter. I put my trust in the old fashioned notions of common sense, and common prudence. That a people, which had been more than twenty years at peace, should enter upon hostilities against a people which had been twenty years at war; that a nation, whose army and navy were little more than nominal, should engage in a war with a nation possessing one of the best appointed armies and the most powerful marine on the globe; that a country, to which neutrality had been a perpetual harvest, should throw that great blessing away for a controversy in which nothing was to be gained, and every thing valuable put in jeopardy; from these, and innumerable like considerations, the idea seemed so absurd that I never once entertained it as possible. And now, after war has been declared, the whole affair seems so extraordinary and so utterly irreconcilable to any previous suggestions of wisdom and duty, that I know not what to make of it or how to believe it. Even at this moment my mind is very much in the state of certain Pennsylvania Germans, of whom I have heard it asserted that they are taught to believe, by their political leaders, and do at this moment consider the allegation, that war is at present existing between the United States and Great Britain, to be a "federal falsehood." It was just so with respect to the invasion of Canada. I heard of it last June. I laughed at the idea, as did multitudes of others, as an attempt too absurd for serious examination. I was in this case again beset by common sense and common prudence. That the United States should precipitate itself upon the unoffending people of that neighboring colony, unmindful of all previously subsisting amities, because the parent State, three thousand miles distant, had violated some of our commercial rights; that we should march inland, to defend our ships, and seamen; that with raw troops, hastily collected, miserably appointed, and destitute of discipline, we should invade a country defended by veteran forces, at least equal, in point of numbers, to the invading army; that bounty should be offered and proclamations issued, inviting the subjects of a foreign power to treason and rebellion, under the influences of a quarter of the country upon which a retort of the same nature was so obvious, so easy, and, in its consequences, so awful; in every aspect, the design seemed so fraught with danger and disgrace, that it appeared absolutely impossible that it should be seriously entertained. Those, however, who reasoned after this manner were, as the event proved, mistaken. The war was declared. Canada was invaded. We were in haste to plunge into these great difficulties, and we have now reason, as well as leisure enough, for regret and repentance. The great mistake of all those, who reasoned concerning the war and the invasion of Canada, and concluded that it was impossible that either should be seriously intended, resulted from this, that they never took into consideration the connection of both those events with the great election for the Chief Magistracy which was then pending. It never was sufficiently considered by them, that plunging into war with Great Britain was among the conditions on which the support for the Presidency was made dependent. They did not understand, that an invasion of Canada was to be in truth only a mode of carrying on an electioneering campaign. But since events have explained political purposes, there is no difficulty in seeing the connections between projects and interests. It is now apparent to the most mole-sighted how a nation may be disgraced, and yet a Cabinet attain its desired honors. All is clear. A country may be ruined, in making an Administration happy. I said, Mr. Speaker, that such strange schemes, apparently irreconcilable to common sense and common prudence, were, on that very account, more likely to be successful. Sir, there is an audacity, which sometimes stands men instead both of genius and strength. And most assuredly, he is most likely to perform that which no man ever did before, and will never be likely to do again, who has the boldness to undertake that which no man ever thought of attempting in time past, and no man will ever think of attempting in time future. I would not, however, be understood as intimating that this Cabinet project of invasion is impracticable, either as it respects the collection of means and instruments, or in the ultimate result. On the contrary, sir, I deem both very feasible. Men may be obtained. For if forty dollars bounty cannot obtain them, a hundred dollars bounty may, and the intention is explicitly avowed not to suffer the attainment of the desired army to be prevented by any vulgar notions of economy. Money may be obtained. What by means of the increased popularity derived from the augmentation of the navy, what by opening subscription offices in the interior of the country, what by large premiums, the cupidity of the moneyed interest may be tempted beyond the point of patriotic resistance, and all the attained means being diverted to the use of the army, pecuniary resources may be obtained, ample at least for the first year. And, sir, let an army of thirty thousand men be collected, let them be put under the command of a popular leader, let them be officered to suit his purposes, let them be flushed with victories, and see the fascinating career of military glory opening upon them, and they will not thereafter ever be deficient in resources. If they cannot obtain their pay by your votes, they will collect it by their own bayonets; and they will not rigidly observe any air-lines or water-lines in enforcing their necessary levies; nor be stayed by abstract speculation concerning right, or learned constitutional difficulties. I will now proceed to discuss those topics which naturally arise out of the bill under consideration, and examine the proposed invasion of Canada, at three different points of view. 1. As a means of carrying on the subsisting war. 2. As a means of obtaining an early and honorable peace. 3. As a means of advancing the personal and local projects of ambition of the members of the American Cabinet. Concerning the invasion of Canada, as a means of carrying on the subsisting war, it is my duty to speak plainly and decidedly, not only because I herein express my own opinions upon the subject, but, as I conscientiously believe, the sentiments also of a very great majority of that whole section of country in which I have the happiness to reside. I say then, sir, that I consider the invasion of Canada as a means of carrying on this war, as cruel, wanton, senseless, and wicked. You will easily understand, Mr. Speaker, by this very statement of opinion, that I am not one of that class of politicians which has for so many years predominated in the world, on both sides of the Atlantic. You will readily believe, that I am not one of those who worship in that temple, where Condorcet is the High Priest and Machiavel the God. With such politicians the end always sanctifies the means; the least possible good to themselves perfectly justifies, according to their creed, the inflicting the greatest possible evil upon others. In the judgment of such men, if a corrupt ministry at three thousand miles distance shall have done them an injury, it is an ample cause to visit with desolation a peaceable and unoffending race of men, their neighbors, who happen to be associated with that ministry by ties of mere political dependence. What though these colonies be so remote from the sphere of the questions in controversy, that their ruin or prosperity could have no possible influence upon the result? What though their cities offer no plunder? What though their conquest can yield no glory? In their ruin there is revenge. And revenge to such politicians is the sweetest of all morsels. With such men, neither I nor the people of that section of country in which I reside hold any communion. There is between us and them no one principle of sympathy either in motive or action. That wise, moral, reflecting people, which constitute the great mass of the population of Massachusetts--indeed, of all New England--look for the sources of their political duties nowhere else than in those fountains from which spring their moral duties. According to their estimate of human life and its obligations, both political and moral duties emanate from the nature of things, and from the essential and eternal relations which subsist among them. True it is, that a state of war gives the right to seize and appropriate the property and territories of an enemy. True it is, that the colonies of a foreign power are viewed, according to the law of nations, in the light of its property. But in estimating the propriety of carrying desolation into the peaceful abodes of their neighbors, the people of New England will not limit their contemplation to the mere circumstance of abstract right, nor ask what lawyers and jurisprudists have written or said, as if this was conclusive upon the subject. That people are much addicted to think for themselves, and in canvassing the propriety of such an invasion, they will consider the actual condition of those colonies, their natural relations to us, and the effect which their conquest and ruin will have, not only upon the people of those colonies, but upon themselves, and their own liberties and constitution. And above all, what I know will seem strange to some of those who hear me, they will not forget to apply to a case occurring between nations, as far as is practicable, that heaven-descended rule which the great author and founder of their religion has given them for the regulation of their conduct towards each other. They will consider it the duty of these United States to act towards those colonies as they would wish those colonies to act, in exchange of circumstances, towards these United States. The actual condition of those colonies, and the relation in which they stood to the United States antecedent to the declaration of war, were of this nature. Those colonies had no connection with the questions in dispute between us and their parent State. They had done us no injury. They meditated none to us. Between the inhabitants of those colonies and the citizens of the United States, the most friendly and mutually useful intercourse subsisted. The borderers on this, and those on the other side of the St. Lawrence, and of the boundary line, scarcely realized that they were subjects of different governments. They interchanged expressions and acts of civility. Intermarriages took place among them. The Canadian sometimes settled in the United States; sometimes our citizens emigrated to Canada. After the declaration of war, had they any disposition to assail us? We have the reverse expressly in evidence. They desired nothing so much as to keep perfect the then subsisting relations of amity. Would the conquest of those colonies shake the policy of the British cabinet? No man has shown it. Unqualified assertions, it is true, have been made, but totally unsupported by any evidence, or even the pretence of argument. On the contrary, nothing was more obvious than that an invasion of Canada must strengthen the Ministry of Great Britain, by the excitement and sympathy which would be occasioned in the people of that country in consequence of the sufferings of the innocent inhabitants of those colonies, on account of a dispute in which they had no concern, and of which they had scarcely a knowledge. All this was anticipated--all this was frequently urged to this House, at the last and preceding sessions, as the necessary effect of such a measure. The event has justified those predictions. The late elections in Great Britain have terminated in the complete triumph of the friends of the British Ministry. In effecting this change, the conduct of the United States in relation to Canada has had, undeniably, a mighty influence, by the disgust and indignation felt by the British people at a step so apparently wanton and cruel. As there was no direct advantage to be hoped from the conquest of Canada, so also, there was none incidental. Plunder there was none--at least, none which would pay the cost of the conquest. Glory there was none. Could seven millions of people obtain glory by precipitating themselves upon half a million, and trampling them into the dust? A giant obtain glory by crushing a pigmy! That giant must have a pigmy's spirit who could reap, or hope, glory from such an achievement. Surely a people, with whom we were connected by so many natural and adventitious ties, had some claims upon our humanity. Surely if our duty required that they and theirs should be sacrificed to our interests or our passions, some regret mingled in the execution of our purpose. We postponed the decree of ruin until the last moment. We hesitated--we delayed until longer delay was dangerous. Alas! sir, there was nothing of this kind or character in the conduct of the Cabinet. The war had not yet been declared, when General Hull had his instructions to put in train the work of destruction. There was an eagerness for the blood of the Canadians--a headlong precipitation for their ruin, which indicated any thing else rather than feelings of humanity, or visitings of nature, on account of their condition. Our armies were on their march for their frontier, while yet peace existed between this country and the parent State; and the invasion was obstinately pursued, after a knowledge that the chief ground of controversy was settled by the abandonment of the British Orders in Council; and after nothing remained but a stale ground of dispute, which, however important in itself, was of a nature for which no man has ever yet pretended that for it alone war would have been declared. Did ever one Government exhibit towards any people a more bloody and relentless spirit of rancor? Tell me not of petty advantages--of remote, and possibly useful contingencies which might arise from the devastation of those colonies. Show any advantage which justifies that dreadful vial of wrath which, if the intention of the American Cabinet had been fulfilled, would, at this day, have been poured out upon the heads of the Canadians. It is not owing to the tender mercies of the American Administration, if the bones of the Canadians are not at this hour mingled with the ashes of their habitations. It is easy enough to make an excuse for any purpose. When a victim is destined to be immolated, every hedge presents sticks for the sacrifice. The lamb who stands at the mouth of the stream, will always trouble the water, if you take the account of the wolf who stands at the source of it. But show a good to us bearing any proportion to the multiplied evils proposed to be visited upon them. There is none. Never was there an invasion of any country worse than this, in point of moral principle, since the invasion of the West Indies by the Buccaneers, or that of the United States by Captain Kidd. Indeed, both Kidd and the Buccaneers had more apology for their deed than the American Cabinet. They had at least the hope of plunder; but in this case there is not even the poor refuge of cupidity. We have heard great lamentations about the disgrace of our arms on the frontier. Why, sir, the disgrace of our arms on the frontier is terrestrial glory, in comparison with the disgrace of the attempt. The whole atmosphere rings with the utterance, from the other side of the House of this word "glory"--"glory" in connection with this invasion. What glory? Is it the glory of the tiger, which lifts his jaws, all foul and bloody, from the bowels of his victim, and roars for his companions of the wood to come and witness his prowess and his spoils? Such is the glory of Genghis Khan, and of Bonaparte. Be such glory far, very far, from my country. Never, never may it be accursed with such fame. "Fame is no plant that grows on mortal soil, Nor in the glistering foil Set off to the world, nor in broad rumor lies, But lives and spreads aloft, by those pure eyes, And perfect witness of all-judging Jove, As he pronounces lastly on each deed." May such fame as this be my country's meed! But the wise and thoughtful people of our Northern section will confine their reflections to the duties which result from the actual condition of those colonies, and their general relations to the United States; they will weigh the duties the people of the United States owe to themselves, and contemplate the effect which the subjugation of those Canadians will have upon our own liberties and constitution. Sir, it requires but little experience in the nature of the human character, and but a very limited acquaintance with the history of man, to be satisfied that with the conquest of the Canadas, the liberties and constitution of this country perish. Of all nations in the world, this nation is the last which ought to admit, among its purposes, the design of foreign conquests. States such as are these, connected by ties so peculiar; into whose combination there enters necessarily numerous jealousies and fears; whose interests are not always reconcilable; and the passions, education, and character of whose people, on many accounts, are repugnant to each other; with a constitution made merely for defence; it is impossible that an association of independent Sovereignties, standing in such relations to each other, should not have the principles of its union, and the hopes of its constitution, materially affected by the collection of a large military force, and its employment in the subjugation of neighboring territories. It is easy to see that an army collected in such a state of society as that which exists in this country, where wages are high and subsistence easily to be obtained, must be composed, so far as respects the soldiery, for the most part of the refuse of the country; and as respects the officers, with some honorable exceptions indeed, must consist, in a considerable degree, of men desperate sometimes in fortune, at others in reputation; "choice spirits;" men "tired of the dull pursuits of civil life," who have not virtue or talents to rise in a calm and settled state of things, and who, all other means of advancement or support wanting or failing, take to the sword. A body of thirty or fifty thousand such men, combined, armed, and under a popular leader, is a very formidable force. They want only discipline and service to make them veterans. Opportunity to acquire these, Canada will afford. The army which advances to the walls of Quebec, in the present condition of Canadian preparation, must be veteran. And a veteran army, under a popular leader, flushed with victory, each individual realizing, that while the body remains combined, he may be something, and possibly very great; that if dissolved, he sinks into insignificance; will not be disbanded by vote. They will consult with one another, and with their beloved chieftain, upon this subject; and not trouble themselves about the advice of the old people who are knitting and weaving in the chimney corners at Washington. Let the American people receive this as an undoubted truth, which experience will verify. Whoever plants the American standard on the walls of Quebec, conquers it for himself, and not for the people of the United States. Whoever lives to see that event--may my head be low in the dust before it happen!--will witness a dynasty established in that country by the sword. He will see a King or an Emperor, dukedoms, and earldoms, and baronies, distributed to the officers, and knights' fees bestowed on the soldiery. Such an army will not trouble itself about geographical lines, in portioning out the divisions of its new empire; and will run the parallels of its power by other steel than that of the compass. When that event happens, the people of New England, if they mean to be free, must have a force equal to defend themselves against such an army. And a military force equal to this object will itself be able to enslave the country. Mr. Speaker--When I contemplate the character and consequences of this invasion of Canada; when I reflect upon its criminality and its danger to the peace and liberty of this once happy country; I thank the great Author and Source of all virtue, that through His grace that section of country in which I have the happiness to reside, is, in so great a degree, free from the iniquity of this transgression. I speak it with pride, the people of that section have done what they could to vindicate themselves and their children from the burden of this sin. That whole section has risen, almost as one man, for the purpose of driving from power, by one great constitutional effort, the guilty authors of this war. If they have failed, it has not been through the want of will or of exertion, but in consequence of the weakness of their political power. When in the usual course of Divine Providence, who punishes nations as well as individuals, His destroying angel shall on this account pass over this country--and sooner or later, pass it will--I may be permitted to hope that over New England his hand will be stayed. Our souls are not steeped in the blood which has been shed in this war. The spirits of the unhappy men who have been sent to an untimely audit, have borne to the bar of divine justice no accusations against us. This opinion, concerning the principles of this invasion of Canada, is not peculiar to me. Multitudes who approve the war, detest it. I believe this sentiment is entertained, without distinction of parties, by almost all the moral sense, and nine-tenths of the intelligence, of the whole northern section of the United States. I know that men from that quarter of the country will tell you differently. Stories of a very different kind are brought by all those who come trooping to Washington for place, appointments, and emoluments; men who will say any thing to please the ear, or do any thing to please the eye of Majesty, for the sake of those fat contracts and gifts which it scatters; men whose fathers, brothers, and cousins, are provided for by the Departments; whose full-grown children are at, suck at the money-distilling breasts of the Treasury; the little men who sigh after great offices; those who have judgeships in hand or judgeships in promise; toads that live upon the vapor of the palace, that swallow great men's spittle at the levees; that stare and wonder at all the fine sights which they see there; and most of all wonder at themselves--how they got there to see them. These men will tell you, that New England applauds this invasion. But, Mr. Speaker, look at the elections. What is the language they speak? The present tenant of the Chief Magistracy rejected, by that whole section of country, with the exception of a single State unanimously. And for whom? In favor of a man, out of the circle of his own State without much influence, and personally almost unknown. In favor of a man against whom the prevailing influence in New England had previously strong political prejudices; and with whom, at the time of giving him their support, they had no political understanding; in favor of a man whose merits, whatever in other respects they might be, were brought into notice, in the first instance, chiefly so far as that election was concerned, by their opinion of the utter want of merit of the man whose re-election they opposed. Among the causes of that universal disgust which pervaded all New England, at the Administration and its supporters, was the general dislike and contempt of this invasion of Canada. I have taken some pains to learn the sentiments which prevail on this subject in New England, and particularly among its yeomanry, the pride and the hope of that country. I have conversed with men, resting on their spades and leaning on the handles of their ploughs, while they relaxed for a moment from the labor by which they support their families, and which gives such a hardihood and character to their virtues. They asked--"What do we want of Canada? We have land enough. Do we want plunder? There is not enough of that to pay the cost of getting it. Are our Ocean rights there? Or is it there our seamen are held in captivity? Are new States desired? We have plenty of those already. Are they to be held as conquered territories? This will require an army there. Then, to be safe, we must have an army here. And with a standing army, what security for our liberties?" These are no fictitious reasonings. They are the suggestions I doubt not of thousands and tens of thousands of our hardy New England yeomanry; men who, when their country calls, at any wise and real exigency, will start from their native soils and throw their shields over their liberties, like the soldiers of Cadmus, "armed in complete steel;" yet men, who have heard the winding of your horn to the Canada campaign, with the same apathy and indifference with which they would hear in the streets the trilling of a jews-harp, or the twirring of a banjo. The plain truth is, that the people of New England have no desire for Canada. Their moral sentiment does not justify, and they will not countenance its invasion. I have thus stated the grounds on which they deem, and I have felt myself bound to maintain, that this contemplated invasion of that territory is, as it respects the Canadians, wanton and cruel; because it inflicts the greatest imaginable evils on them, without any imaginable benefit to us; that, as it respects the United States, such an invasion is senseless, because, ultimately, ruinous to our own political safety; and wicked, because it is an abuse of the blessings of Divine Providence, and a manifest perversion of His multiplied bounties, to the purpose of desolating an innocent and unoffending people. I shall now proceed to the next view I proposed to take on this project of invading Canada, and consider it in the light of a means to obtain an early and honorable peace. It is said, and this is the whole argument in favor of this invasion, in this aspect, that the only way to negotiate successfully with Great Britain, is to appeal to her fears and raise her terrors for the fate of her colonies. I shall here say nothing concerning the difficulties of executing this scheme; nor about the possibility of a deficiency both in men and money. I will not dwell on the disgust of all New England, nor on the influence of this disgust with respect to your efforts. I will admit, for the present, that an army may be raised, and that during the first years it may be supported by loans, and that afterwards it will support itself by bayonets. I will admit farther, for the sake of argument, that success is possible and that Great Britain realizes the practicability of it. Now, all this being admitted, I maintain that the surest of all possible ways to defeat any hope from negotiation, is the threat of such an invasion, and an active preparation to execute it. Those must be very young politicians, their pin-feathers not yet grown, and however they may flutter on this floor, they are not yet fledged for any high or distant flight, who think that threats and appealing to fear are the ways of producing a disposition to negotiate in Great Britain, or in any other nation which understands what it owes to its own safety and honor. No nation can yield to threat, what it might yield to a sense of interest; because, in that case, it has no credit for what it grants, and what is more, loses something in point of reputation, from the imbecility which concessions made under such circumstances indicate. Of all nations in the world, Great Britain is the last to yield to considerations of fear and terror. The whole history of the British nation is one tissue of facts, tending to show the spirit with which she meets all attempts to bully and brow-beat her into measures inconsistent with her interests or her policy. No nation ever before made such sacrifices of the present to the future. No nation ever built her greatness more systematically, on the principles of a haughty self-respect, which yields nothing to suggestions of danger, and which never permits either her ability or inclination to maintain her rights to be suspected. In all negotiations, therefore, with that power, it may be taken as a certain truth, that your chance of failure is just in proportion to the publicity and obtrusiveness of threats and appeals to fear. The American Cabinet understands all this very well, although this House may not. Their policy is founded upon it. The project of this bill is to put at a still further distance the chance of amicable arrangement, in consequence of the dispositions which the threat of invasion of their colonies, and attempt to execute it, will excite in the British nation and Ministry. I have some claim to speak concerning the policy of the men who constitute the American Cabinet. For eight years I have studied their history, characters, and interests. I know no reason why I should judge them severely, except such as arise from those inevitable conclusions, which avowed principles and distinct conduct have impressed upon the mind. I say, then, sir, without hesitation, that in my judgment, the embarrassments of our relations with Great Britain, and keeping alive between this country and that a root of bitterness, has been, is, and will continue to be, a main principle of the policy of this American Cabinet. They want not a solid settlement of our differences. If the nation will support them in it, they will persevere in the present war. If it will not, some general arrangements will be the resort, which will leave open opportunities for discord; which on proper occasions will be improved by them. I shall give my reasons for this opinion. I wish no sentiments of mine to have influence any farther than the reasons upon which they are founded justify. They are public reasons, arising from undeniable facts; the nation will judge for itself. The men who now, and who, for these twelve years past, have, to the misfortune of this country, guided its councils and directed its destinies, came into power on a tide, which was raised and supported by elements constituted of British prejudices and British antipathies. The parties which grew up in this nation took their origin and form at the time of the adoption of the treaty negotiated by Mr. Jay, in 1794. The opposition of that day, of which the men now in power were the leaders, availed themselves, very dexterously, of the relics of that hatred towards the British name which remained after the Revolutionary war. By perpetually blowing up the embers of the ancient passions, they excited a flame in the nation; and by systematically directing it against the honorable men who at that time conducted its affairs, the strength and influence of those men were impaired. The embarrassments with France, which succeeded, in 1798 and 1799, were turned to the same account. Unfortunately, those who then conducted the public affairs attended less to the appearance of things, than to their measures; and considered more what was due to their country than was prudent, in the state of the prejudices and jealousies of the people, thus artfully excited against them. They went on, in the course they deemed right, regardless of personal consequences, and blind to the evidences of discontent which surrounded them. The consequences are well known. The supreme power in these United States passed into the hands which now possess it; in which it has been continued down to the present time. The transfer of power was effected, undeniably, principally on the very ground of those prejudices and antipathies which existed in the nation against Great Britain; and which had been artfully fomented by the men now in power, and their adherents, and directed against their predecessors. These prejudices and passions constitute the main pillar of the power of these men. In my opinion, they never will permit it to be wholly taken away from them. They never will permit the people of this country to look at them and their political opponents, free of that jaundice with which they have carefully imbued the vision of their own partisans. They never will consent to be weighed in a balance of mere merits; but will always take care to keep in reserve some portion of these British antipathies, to throw as a make-weight into the opposite scale, whenever they find their own sinking. To continue, multiply, strengthen, and extend these props of their power, has been, still is, the object of the daily study and the nightly vigils of our American Cabinet. For this the British Treaty was permitted to expire by its own limitation; notwithstanding the state of things which the Treaty of Amiens had produced in Europe was so little like permanent peace, that the occurrence of the fact, on which the force of that limitation depended, might easily have been questioned, with but little violence to the terms, and in perfect conformity with its spirit. For this a renewal of the Treaty of 1794 was refused by our Cabinet, although proffered by the British Government. For this the treaty negotiated by Messrs. Monroe and Pinkney in 1807 was rejected. For this, in 1811, fifty thousand dollars were paid out of the public Treasury to John Henry, for the obvious purpose of enabling the American Cabinet to calumniate their political opponents, on this very point of British influence, upon the eve of elections, occurring in Massachusetts, on the event of which the perpetuation of their own power was materially dependent. Mr. Speaker, such men as these never will permit a state of things to pass away, so essential to their influence. Be it peace or war arrangement or hostility, the association of these British antipathies in the minds of the mass of the community, with the characters of their political opponents, constitutes the great magazine of their power. This composes their whole political larder. It is, like Lord Peter's brown loaf, their "beef, mutton, veal, venison, partridge, plum-pudding, and custard." From the time of the expiration of the British Treaty of 1794, and the refusal to renew it, the American Cabinet have been careful to precede negotiation with some circumstances or other, calculated to make it fail, or at least to make a successful result less certain. Thus in 1806, when, from the plunder of commerce, by British cruisers, a negotiation, notwithstanding the obvious reluctance of the Cabinet, was forced upon them, by the clamors of the merchants, the non-importation law of April, in that year, was obtruded between the two countries. In the course of the debate upon that law, it was opposed upon this very ground, that it was an obstacle to a successful negotiation. It was advocated, like the bill now under discussion, as an aid to successful negotiation. It was also said by the opponents of the law of 1806, that Great Britain would not negotiate under its operation, and that arrangement, attempted under proper auspices, could not be difficult, from the known interests and inclinations of that nation. What was the consequence? Precisely that which was anticipated. The then President of the United States was necessitated to come to this House, and recommend a suspension of the operation of that law, upon the openly-avowed ground of its being expedient to give that evidence of a conciliatory disposition; really, because, if permitted to continue in operation, negotiation was found to be impracticable. After the suspension of that law, a treaty was formed. The merits of that treaty, it is not within the scope of my present argument to discuss. It is sufficient to say, it was deemed good enough to receive the sanction of Messrs. Monroe and Pinkney. It arrived in America and was rejected by the authority of a single individual; apparently because of the insufficiency of the arrangement about impressment. Really because a settlement with Great Britain, at that time, did not "enter into the scope of the policy" of the American Cabinet. The negotiation was indeed renewed, but it was followed up with the enforcement of the non-importation law, and the enactment of the embargo. Both which steps were stated at the time, as they proved afterwards, to be of a nature to make hopeless successful negotiation. In this State the Executive power of this nation formally passed into new hands, but substantially remained under the old principles of action, and subject to the former influences. It was desirable that a fund of popularity should be acquired for the new Administration. Accordingly, an arrangement was made with Mr. Erskine, and no questions asked, concerning the adequacy of his powers. But, lest this circumstance should not defeat the proposed arrangement, a clause was inserted in the correspondence containing an insult to the British Government, offered in the face of the world, such as no man ever gave to a private individual whom he did not mean to offend. The President of the United States said, in so many words, to the person at the head of that Government, that he did not understand what belonged to his own honor, as well as it was understood by the President himself. The effect of such language was natural, it was necessary; it could not but render the British Government averse to sanction Mr. Erskine's arrangement. The effect was anticipated by Mr. Robert Smith, then acting as Secretary of State. He objected to its being inserted, but it was done in the President's own handwriting. As Mr. Erskine's authority was denied by the British Government, it is well known that in fact, on the point of this indignity, the fate of that arrangement turned. Can any one doubt that our Cabinet meant that it should have this effect? I send you word, Mr. Speaker, that I have agreed with your messenger, and wish you to ratify it. I think you, however, no gentleman, notwithstanding; and that you do not understand, as well as I, what is "due to your own honor." What think you, sir? Would you ratify such an arrangement if you could help it? Does a proffer of settlement, connected with such language, look like a disposition or an intention to conciliate? I appeal to the common sense of mankind on the point. The whole stage of the relations, induced between this country and Great Britain, in consequence of our embargo and restrictive systems, was, in fact, a standing appeal to the fears of the British Cabinet. For, notwithstanding those systems were equal in their terms, so far as they affected Foreign Powers, yet their operation was notoriously almost wholly upon Great Britain. To yield to that pressure, or to any thing which should foster, in this country, the idea that it was an effectual weapon of hostility, was nothing more than conceding that she was dependent upon us. A concession, which, when once made by her, was certain to encourage a resort to it by us on every occasion of difficulty between the two nations. Reasoning, therefore, upon the known nature of things, and the plain interests of Great Britain, it was foretold that, during its continuance she would concede nothing. And the event has justified these predictions. But the circumstance the most striking, and that furnishing the most conclusive evidence of the indisposition of the American Cabinet to peace, and their determination to carry on the war, is that connected with the pretended repeal of the French decrees, in November, 1810, and the consequent revival, in 1811, of our restrictive system against Great Britain. If ever a body of men were pledged to any thing, the American Cabinet, its friends and supporters, were pledged for the truth of this fact; that the French decrees of Berlin and Milan were definitively repealed as it respects the United States, on the first of November, 1810. If ever any body of men staked their whole stock of reputation upon any point, our Cabinet did it on this. They and their partisans asserted and raved. They denounced every man as a British partisan who denied it. They declared the restrictive system was revived by the mere effect of the proclamation. But lest the courts of law should not be as subservient to their policy as might be wished, they passed the law of the 2d of March, 1811, upon the basis of this repeal, and of its being definitive. The British Government refused, however, to recognize the validity of this repeal, and denied that the Berlin and Milan decrees were repealed on the first of November, 1810, as our Cabinet asserted. Thus, then, stood the argument between the British Ministry and our Cabinet. The British Ministry admitted that if the Berlin and Milan decrees were repealed on the 1st of November, 1810, they were bound to revoke their Orders in Council. But they denied that repeal to exist. Our Cabinet, on the other hand, admitted that if the Berlin and Milan decrees were not repealed on the 1st of November, 1810, the restrictive system ought not to have been revived against Great Britain. But they asserted that repeal to exist. This was, virtually, the state of the question between the two countries on this point. And it is agreed, on all hands, that this refusal of the British Government to repeal their Orders in Council, after the existence of the repeal of the Berlin and Milan decrees, as asserted by the American Cabinet, was the cause of the declaration of war between the two countries. So that in truth, the question of the right of war depended upon the existence of that fact; for if that fact did not exist, even the American Cabinet did not pretend that, in the position in which things then stood, they had a right to declare war, on account of the continuance of the British Orders in Council. Now, what is the truth in relation to this all-important fact, the definitive repeal of the Berlin and Milan decrees on the 1st of November, 1810; the pivot upon which turned the revival of the restrictive system and our declaration of war? Why, sir, the event has proved that in relation to that fact the American Cabinet was, to say the least, in an error. Bonaparte himself, in a decree, dated the 28th of April, 1811, but not promulgated till a year afterwards, distinctly declares that the Berlin and Milan decrees were not definitively repealed, as relates to the United States, on the 1st of November, 1810. He also declares that they are then, on that twenty-eighth of April, for the first time, repealed. And he founds the issuing of this decree on the act of the American Congress of the 2d of March, 1811. That very act, which was passed upon the ground of the definitive repeal of the Berlin and Milan decrees, on the 1st of November, 1810; and which, it is agreed on all sides, the American Government were bound in honor not to pass, except in case of such antecedent repeal. Were ever a body of men so abandoned in the hour of need, as the American Cabinet, in this instance by Bonaparte? Was ever any body of men so cruelly wounded in the house of their friend? This, this was "the unkindest cut of all." But how was it received by the American Cabinet? Surely they were indignant at this treatment. Surely the air rings with reproaches upon a man who has thus made them stake their reputation upon a falsehood; and then gives little less than the lie direct, to their assertions. No, sir, nothing of all this is heard from our Cabinet. There is a philosophic tameness that would be remarkable, if it were not, in all cases affecting Bonaparte, characteristic. All the Executive of the United States has found it in his heart to say, in relation to this last decree of Bonaparte, which contradicts his previous allegations and asseverations, is, that "This proceeding is rendered, by the time and manner of it, liable to many objections!" I have referred to this subject as being connected, with future conduct, strikingly illustrative of the disposition of the American Cabinet to carry on the war, and of their intention, if possible, not to make peace. Surely, if any nation had a claim for liberal treatment from another, it was the British nation from the American, after the discovery of the error of the American Government, in relation to the repeal of the Berlin and Milan decrees, in November, 1810. In consequence of that error, the American Cabinet had ruined numbers of our own citizens, who had been caught by the revival of the non-intercourse law; they had revived that law against Great Britain, under circumstances which now appeared to have been fallacious; and they had declared war against her, on the supposition, that she had refused to repeal her Orders in Council, after the French decrees were in fact revoked: whereas, it now appears that they were in fact not revoked. Surely the knowledge of this error was followed by an instant and anxious desire to redress the resulting injury. As the British Orders in Council were in fact revoked, on the knowledge of the existence of the French decree of repeal, surely the American Cabinet at once extended the hand of friendship; met the British Government half way; stopped all farther irritation; and strove to place every thing on a basis best suited to promote an amicable adjustment. No, sir, nothing of all this occurred. On the contrary, the question of impressments is made the basis of continuing the war. On this subject, a studied fairness of proposition is preserved, accompanied with systematic perseverance in measures of hostility. An armistice was proposed by them. It was refused by us. It was acceded to by the American General on the frontiers. It was rejected by the Cabinet. No consideration of the false allegation on which the war in fact was founded; no consideration of the critical and extremely consequential nature to both nations of the subject of impressment; no considerations of humanity, interposed their influence. They renewed hostilities. They rushed upon Canada. Nothing would satisfy them but blood. The language of their conduct is that of the giant, in the legends of infancy: "Fee, faw, fow, fum, I smell the blood of an Englishman; Dead or alive, I will have some!" Can such men pretend that peace is their object? Whatever may result, the perfect conviction of my mind is, that they have no such intention, and that if it comes it is contrary both to their hope and expectation. I would not judge these men severely. But it is my duty to endeavor to judge them truly; and to express fearlessly the result of that judgment, whatever it may be. My opinion results from the application of the well-known principle of judging concerning men's purposes and motives: to consider rather what men do, than what they say; and to examine their deeds in connection with predominating passions and interests; and on this basis decide. In making an estimate of the intentions of these or any other politicians, I make little or no account of pacific pretensions. There is a general reluctance at war, and desire of peace, which pervades the great mass of every people; and artful rulers could never keep any nation at war any length of time, beyond their true interests, without some sacrifice to that general love of peace which exists in civilized men. Bonaparte himself will tell you that he is the most pacific creature in the world. He has already declared, by his proclamation to Frenchmen, that he has gone to Moscow for no other end than to cultivate peace, and counteract the Emperor of Russia's desire of war. In this country, where the popular sentiment has so strong an impulse on its affairs, the same obtrusive pretension must inevitably be preserved. No man or set of men ever can or will get this country at war, or continue it long in war, without keeping on hand a stout, round stock of gulling matter. Fair propositions will always be made to go hand in hand with offensive acts. And when something is offered so reasonable that no man can doubt but it will be accepted, at the same moment something will be done of a nature to embarrass the project, and if not to defeat at least to render its acceptance dubious. How this has been in past time, I have shown. I will now illustrate what is doing and intended at present. As from the uniform tenor of the conduct of the American Cabinet, in relation to the British Government, I have no belief that their intention has been to make a solid arrangement with that nation; so, from the evidence of their disposition and intention, existing abroad and on the table, I have no belief that such is at present their purpose. I cannot possibly think otherwise, than that such is not their intention. Let us take the case into common life. I have demands, Mr. Speaker, against you, very just in their nature, but different. Some of recent, others of very old date. The former depending upon principles very clearly in my favor. The latter critical, difficult, and dubious, both in principle and settlement. In this state of things, and during your absence, I watch my opportunity, declare enmity; throw myself upon your children and servants and property, which happen to be in my neighborhood, and do them all the injury I can. While I am doing this, I receive a messenger from you, stating that the grounds of the recent injury are settled; that you comply fully with my terms. Your servants and children, whom I am plundering and killing, invite me to stay my hand until you return, or until some accommodation can take place between us. But, deaf to any such suggestions, I prosecute my intention of injury to the utmost. When there is reason to expect your return, I multiply my means of injury and offence. And no sooner do I hear of your arrival, than I thrust my fist into your face, and say to you--"Well, sir, here are fair propositions of settlement; come to my terms, which are very just; settle the old demand in my way, and we will be as good friends as ever." Mr. Speaker, what would be your conduct on such an occasion? Would you be apt to look as much at the nature of the propositions, as at the temper of the assailant? If you did not at once return blow for blow, and injury for injury, would you not at least take a little time to consider? Would you not tell such an assailant, that you were not to be bullied nor beaten into any concession? If you settled at all, might you not consider it your duty in some way to make him feel the consequences of his strange intemperance of passion? For myself, I have no question how a man of spirit ought to act under such circumstances. I have as little, how a great nation, like Great Britain, will act. Now, I have no doubt, sir, that the American Cabinet view this subject in the same light. They understand well, that by the declaration of war, the invasion of Canada, the refusal of an armistice, and perseverance in hostilities, after the principal ground of war had been removed, they have wrought the minds of the British Cabinet and people to a very high state of irritation. Now is the very moment to get up some grand scheme of pacification; such as may persuade the American people of the inveterate love of our Cabinet for peace, and make them acquiescent in their perseverance in hostilities. Accordingly, before the end of the session, a great tub will be thrown out to the whale. Probably, a little while before the Spring elections, terms of very fair import will be proffered to Great Britain. Such as, perhaps, six months ago our Cabinet would not have granted, had she solicited them on her knees. Such as probably, in the opinion of the people of this country, Great Britain ought to accept; such perhaps as in any other state of things, she would have accepted. But such as, I fear, under the irritation produced by the strange course pursued by the American Cabinet, that nation will not accept. Sir, I do not believe that our Cabinet expect that they will be accepted. They think the present state of induced passion is sufficient to prevent arrangement. But to make assurance doubly sure, to take a bond of fate, that arrangement shall not happen, they prepare this bill. A bill, which proposes an augmentation of the army for the express purpose of conquering the Canadas. A bill which, connected with the recent disposition evinced by our Cabinet, in relation to those provinces, and with the avowed intent of making their subjugation the means of peace, through the fear to be inspired into Great Britain, is as offensive to the pride of that nation as can well be imagined; and is, in my apprehension, as sure a guarantee of continued war as could be given. On these grounds, my mind cannot force itself to any other conclusion than this, that the avowed object of this bill is the true one; that the Canadas are to be invaded the next season; that the war is to be protracted: and that this is the real policy of the American Cabinet. I will now reply to those invitations to "union," which have been so obtrusively urged upon us. If by this call to union is meant a union in a project for the invasion of Canada, or for the invasion of East Florida, or for the conquest of any foreign country whatever, either as a means of carrying on this war or for any other purpose, I answer, distinctly, I will unite with no man nor any body of men for any such purposes. I think such projects criminal in the highest degree, and ruinous to the prosperity of these States. But, if by this invitation is meant union in preparation for defence, strictly so called; union in fortifying our seaboard; union in putting our cities into a state of safety; union in raising such a military force as shall be sufficient with the local militia in the hands of the constitutional leaders, the Executives of the States, to give a rational degree of security against any invasion; sufficient to defend our frontiers, sufficient to awe into silence the Indian tribes within our Territories; union in creating such a maritime force as shall command the seas on the American coasts, and keep open the intercourse, at least between the States: if this is meant, I have no hesitation; union on such principles you shall have from me cordially and faithfully. And this, too, sir, without any reference to the state of my opinion, in relation to the justice or necessity of this war. Because I will understand such to be the condition of man, in a social compact, that he must partake of the fate of the society to which he belongs, and must submit to the privations and sacrifices its defence requires, notwithstanding these may be the result of the vices or crimes of its immediate rulers. But there is a great difference between supporting such rulers in plans of necessary self-defence, on which the safety of our altars and firesides especially depend, and supporting them in projects of foreign invasion, and encouraging them in schemes of conquest and ambition, which are not only unjust in themselves, but dreadful in their consequences; inasmuch as, let the particular project result as it may, the general effect must be, according to human view, destructive to our own domestic liberties and constitution. I speak as an individual. Sir, for my single self, did I support such projects as are avowed to be the objects of this bill, I should deem myself a traitor to my country. Were I even to aid them by loan, or in any other way, I should consider myself a partaker in the guilt of the purpose. But when these projects of an invasion shall be abandoned; when men yield up schemes which not only openly contemplate the raising of a great military force, but also the concentrating them at one point, and placing them in one hand; schemes obviously ruinous to the fates of a free Republic--as they comprehend the means by which such have ever heretofore been destroyed; when, I say, such schemes shall be abandoned, and the wishes of the Cabinet limited to mere defence and frontier and maritime protection, there will be no need of calls to union. For such objects there is not, there cannot be, but one heart and soul in this people. Mr. ARCHER said, so great was the respect which he felt for the House, so deep was the consciousness which he entertained of his inability to do justice to a cause, especially one of so much magnitude and importance, of which he might be the advocate, that he would be doing injustice to his feelings were he not to express the weight of the embarrassments which oppressed him. But the wide range which the present discussion had taken, involving considerations of great national interest, and calling forth the cruel asperities of political intolerance, seemed to leave him no alternative in the discharge of his duty, but to repel the unfounded insinuations which had flown in so copious a stream from the other side of the House. Were gentlemen to confine themselves to a temperate investigation of the propriety of adopting measures either recommended by the Executive, or proposed by the majority, who is there that would not listen with pleasure and satisfaction? But when the liberty of debate was prostituted in disseminating the most unfounded charges, in the indiscriminate abuse of the constituted authorities of the nation, he confessed he could not "always be a hearer, and never reply." The few observations he had to make would be without either system or arrangement, having bestowed no previous consideration on the subject, and should be confined not so much to the bill for raising an additional army, as the remarks and arguments of those gentlemen who had preceded him on the other side of the House. And here, he said, he hoped to be permitted first to notice the charge which had been confidently made by a gentleman from New York (Mr. GOLD) against the majority of the House. He had asserted (and he seemed to dwell upon the assertion with peculiar satisfaction) that war had been declared by Congress prematurely and without due preparation; that to embark in a war with a powerful nation, without a large standing army, was impolitic in the extreme. This principle, said Mr. A., in the general might be true, but it had certainly no application to this country. Our Government was founded on the broad basis of popular opinion, liable to fluctuation upon the first appearance of any system which might be calculated to destroy the liberties of the people. A laudable jealousy of their rulers throbbed in the heart of every man in the country, who would seize the first opportunity to change an Administration that would raise a standing army in time of peace, whatever might be the professed objects of such an Administration. From this jealousy the natural result would be, that the men who raised the army would never declare the war which it was intended to wage. He would refer to the Administration of Mr. Adams. An army had been then raised, or attempted to be raised, to defend the country against an anticipated French invasion. The professed object was disbelieved, and the people, apprehending an invasion of their rights, removed from power the men who had voted for the army. All our institutions were repugnant to a standing army in time of peace. Anticipated invasion would seldom justify it, because it might be made a pretext for the purpose at all times, and with the most dangerous views. What had been said by the gentleman from Massachusetts (Mr. QUINCY) seemed to confirm this position, for he had expressed his fears of the army, even in a state of declared war, when that army was to be employed out of the limits of the country; and if jealousy existed at such time, the conclusion would naturally follow that it would exist to a greater degree in a time of peace. The argument then of the gentleman, if it proved any thing, proved too much, because its effect would always be to frustrate the views of the Government, and prevent it from going to war to avenge even the grossest insult, or to assert even its most indisputable rights. But an appeal had been made with much confidence to the history of all Europe, to bear him out in the charge he had made, and it had been said that no instance of a nation's engaging in a war without having a well-regulated and disciplined army could be adduced. This, said Mr. A., will be admitted, but he presumed it was incumbent upon the gentleman to show that some analogy existed between the Governments of Europe and that of the United States, before his argument could have any application to the subject. There the people had no voice in the selection of their rulers. There the arbitrary will of the monarch was the law of the land, and his decrees, however oppressive or obnoxious, were enforced by the hand of power, without a murmur or complaint. There each Government is surrounded by kingdoms powerful and strong, the ambition of whose rulers prompts them to seize upon every occasion to enlarge the boundaries of their dominions. For one of these powers, even in the most peaceful condition of the world, to be destitute of a powerful and permanent military force, would evince an inattention to its own security and independence, which would demonstrate the incapacity of its monarch to govern his subjects, or to preserve the integrity of his possessions. But the dissimilarity of the Government and situation of the United States would show the inapplicability of the gentleman's maxim to this country. Here we have no powerful neighbor whose incursions we dread. Here we are happily removed, by a wide-extended ocean, from those nations who, upon a declaration of war by us, could overrun the country with a military force, or endanger its civil institutions. Here we have a people proudly jealous of their liberties, who will put down constitutionally every attempt in a state of peace to raise a Military Establishment. To have delayed, then, the declaration of war against England, until the ranks of the army authorized to be raised had been completely filled, would have been a most certain course to have defeated the object which Congress had in view. The jealousies and fears which would have been the necessary consequence of such delay, would have brought into power men of far different views; men who, if the natural conclusion to be drawn from the arguments of some of them could be admitted, would sooner submit to all the indignities we had received from Great Britain, than resist her. The war was therefore not declared prematurely, but was delayed to as late a period as the nature of our institutions would permit. And, if what he had said would not be sufficient to satisfy the gentleman from New York of his error, the army that was so shamefully surrendered at Detroit, if it had been commanded by a man of spirit and fidelity, would long before this, by the possession which it would have given us of an important province of the enemy, have convinced him that war was not declared without preparation. But, for having said so much upon this point, some apology seemed to be necessary upon his part, and he could only say that he had been induced to do so, because, having been one of the majority who voted for war against England, the charge seemed to be an imputation against his character, which the duty every man owed to himself bound him to repel. It had been said by a gentleman from Connecticut (Mr. PITKIN) that the nature of the war had been changed; the principal cause had been removed by the British Order in Council of June 23d, 1812, by which her previous orders were repealed; that it was a well-ascertained fact that war would not have taken place if this intelligence had reached the United States before its declaration; and that the Executive ought to have acceded to the terms proposed through Admiral Warren, and have terminated the contest. These were grounds which demanded some consideration, and he trusted that he would be able to show, from authentic documents, that his premises were erroneous, and that of course his conclusions did not follow. But he would now admit, for the sake of argument, (what he should hereafter prove incorrect,) that the Orders in Council were the principal cause of the war; he could not, for himself, see how, even then, the war ought in justice to have terminated. Did it follow that minor considerations should be placed out of view or yielded up entirely? Would it have been proper for the Government to have entered into no stipulations for the security of American seamen? Would it have been proper in them to have claimed on behalf of our citizens no indemnity for the vast amount of spoliations which have been made on the property of American merchants? Unquestionably not. Until these considerations, admitting them to be of minor importance, should have been satisfactorily adjusted, to have made a peace, in his opinion, would have been the height of impolicy. Sir, said he, it is not sufficient that the injury should cease, but that ample compensation should be made for the commission of the wrong. This was the case every day between individuals in civil society, and why ought not the rule to apply with equal force to States, in their relation to each other? Justice was its foundation, and that would operate upon the one as well as the other. These considerations alone, perhaps, ought to be deemed sufficient to show that the course the gentlemen would have taken would have been unwise. But, supposing them to have no weight, he thought it might be satisfactorily shown that, to have acceded to the terms proposed by the British Government, would have been an actual abandonment of the principal cause which had induced hostilities. To have negotiated without entering into an arrangement in relation to the important interest of impressment, would unquestionably have been a relinquishment of the right which we claimed, to be exempted from its exercise. But it was said that was a secondary consideration. From whence was this conclusion drawn? Were we more regardful of the property than the personal liberty of the citizen? Was it taken from an impression which had gone abroad in the country? or from the unofficial conversation of the members of the House? These opinions (if the expression were allowed) he would call extra judicial, and entitled to no consideration. But to show that impressment was the principal cause, he would resort to the best evidence of which the case was susceptible. He would appeal to the archives and records of the country, which, in his opinion, would be conclusive, to show what the opinions of Congress were upon that subject. And, in the first place, would call the attention of the House to the report of the committee to whom our foreign affairs were intrusted, which was made on the 29th of November, 1811. After commenting on the operation of the Orders in Council, they say: "That they are not of that sect whose worship is at the shrine of a calculating avarice, and while they are laying before the House the just complaints of our merchants against the plunder of their ships and cargoes, they cannot refrain from presenting to the justice and humanity of their country the unhappy case of our impressed seamen. Although the groans of these victims of barbarity for the loss of (what would be dearer to Americans than life) their liberty; although the cries of their wives and children in the privation of protectors and parents have of late been drowned in the louder clamors at the loss of property; yet is the practice of forcing our mariners into the British navy, in violation of the rights of our flag, carried on with unabated rigor and severity. If it be our duty to encourage the fair and legitimate commerce of the country by protecting the property of the merchant, then, indeed, by as much as life and liberty are more estimable than ships and goods, so much more impressive is the duty to shield the persons of our seamen, whose hard and honest services are employed equally with those of the merchants, in advancing, under the mantle of its laws, the interests of their country." Again, the same committee, in the report which they made to the House, detailing the causes which should induce the House to declare war, say, (after speaking of the evils flowing from the Orders in Council:) "That they will proceed to the consideration of another wrong, which has been still more severely felt. This is the impressment of our seamen, a practice which has been unceasingly maintained by Great Britain in the wars to which she has been a party since our Revolution. That they cannot convey, in adequate terms, the deep sense which they entertain of the injustice and oppression of this proceeding. Under the pretext of impressing British seamen, Americans were seized in British ports, on the high seas, and in every other quarter to which the British power extends, were taken on board British men of war, and compelled to serve there as British subjects. In this mode our citizens were wantonly snatched from their own country and their families; deprived of their liberty, and doomed to an ignominious and slavish bondage; compelled to fight the battles of a foreign country, and often to perish in them. Our flag has given them no protection; it has been unceasingly violated, and our vessels exposed to danger by the loss of the men taken from them. That while this practice is continued, it is impossible for the United States to consider themselves an independent nation, for every case produces a new proof of their degradation." These reports, by the adoption of the measures they recommended, were sanctioned by the Congress of the United States, and may be considered as furnishing strong, if not full and complete evidence, that the Legislative department of the Government considered the impressment of our seamen as the principal cause which impelled them to have recourse to the last resort of injured nations. The opinion of the Executive had been manifested in clear and explicit terms upon the subject, in the Message of the Chief Magistrate of the 1st of June, 1812. Thus we have these concurrent proofs against the assertions of the gentleman from Connecticut, (Mr. PITKIN.) If, then, as it appears clearly to have been, from the documents before alluded to, that impressment was the principal cause of the war, that it was an injury which no independent nation could submit to without surrendering a portion of its sovereignty, would it not be admitted, even on the ground which had been taken, that, to have terminated the war by acceding to the propositions alluded to, would have been degrading to the nation, and have manifested the incompetency of the Executive to have conducted with firmness the helm of State which had been submitted to his guidance and direction? And no doubt could be entertained had such an event taken place, but we should have heard denunciations against the Administration proceeding from the very quarter whence they now flow. Then they would have been made with infinitely more justice, because they would have been supported by reason and by truth. We should have then found the opposition appealing to the sympathies of the people, and proclaiming that their most inestimable rights had been surrendered by Government in the pacification; that although they were originally opposed to a war, when it had once been declared they would have prosecuted it until the claim had been abandoned by the British Government. For, it cannot be concealed that unless, in the present contest, Great Britain can be compelled to relinquish her claim to the right of impressment, unless it be made the _sine qua non_ by the American Government, to any arrangement of the existing differences between the two nations, our claim to exemption from the practice must be forever given up, and Great Britain will feel herself at liberty to continue to exercise it with ten-fold rigor and severity. Mr. A. declared that, notwithstanding the clamor of French influence and French alliance, he felt no apprehensions upon that subject, as he was well convinced it was not the intention or wish of our Government to engulf us in the unfathomable vortex of European warfare. One word to the gentleman from New York (Mr. GOLD) and he had done. It had been considered by him as a most unfortunate circumstance that we should be engaged in a war with Great Britain when Russia was struggling for her independence. The most amicable relations existed, it was true, between Russia and the United States; but would the gentleman have us on that account to submit to every species of indignity from the ally of that power? He beheld with as much detestation and abhorrence the conduct of the French Emperor as any man could possibly do. His ambitious progress was everywhere marked with blood. The vengeance of Heaven, he trusted, would arrest him in his career to universal conquest and dominion. The present condition of Russia, although her people groaned under a despotism of the most unrelenting nature, must excite the sympathy of every man in this country, because she was contending for her independence, and he would wish her complete success in the war in which she was now engaged, but that her triumph would protract the restoration of peace to his own country. Mr. GRUNDY.--Mr. Speaker, had this debate been confined to the bill before you, I should certainly not have troubled the House with any remarks of mine; but as the gentlemen opposed to the war in which we are engaged have selected this as a fit occasion to bring before this House and the nation a full view of all the relations which exist between this and other countries, an apology at least is furnished for a member of that committee, to whose examination these subjects have been confided, to give his ideas upon the various points suggested. This I shall endeavor to do with temper and moderation. I will now proceed to state, as accurately and as concisely as I am able, the manner in which the points in difference between the two nations ought to be considered. Upon some of the subjects in controversy, for instance, that of impressment, negotiation had been tried unsuccessfully for twenty years, as I will show before I sit down, from the public records of the country; on others it had been tried for a shorter period. At the last session of Congress, when every hope of obtaining justice in any other way was lost, the United States declared war, not to procure a repeal of the Orders in Council only, but to obtain redress for the unjust spoliations which had been committed on the property of American citizens, and to cause Great Britain to cease the practice of impressment. Other causes of irritation existed, but these were the prominent causes of the war. It may be taken as granted, in this discussion, that those orders are revoked, notwithstanding the objectionable manner of the revocation. You are now asked to lay down the sword before you have obtained any of the objects of the war, except the abolition of these obnoxious orders. I request gentlemen to reflect, whether this is not, in point of fact, an abandonment of the other points in dispute? Do you not, by ceasing to prosecute the war which is already commenced, declare, in the strongest possible terms, that you will not make war for the injuries which remain unredressed? Can any man persuade himself that you will obtain that by negotiation for which you have determined you will not fight! and that, too, from a nation at all times disposed to depress this growing country? That politician must have a very imperfect knowledge of the considerations which influence all Cabinets, who does not know that the strongest inducement which can be brought to operate in favor of an injured nation, is the apprehension of retaliation, or fear of war, entertained by the other party. I cannot, perhaps, establish this more clearly in any other way than by recurring to the history of a transaction which took place between the United States and Great Britain. Immediately after the attack on the Chesapeake, this Government demanded reparation. The terms proposed were reasonable, and such as a nation, inclined to act justly, would promptly have acceded to. For five years, or more, did the British Government refuse, or rather fail, to make that arrangement, which, at the last session, produced a satisfactory adjustment on that subject. Why, sir, was justice so long delayed, and why was it at last obtained? The British Minister discovered a determination in Congress to submit no longer. He saw that, unless something was done, friendly relations between the two countries must immediately cease. He saw that public sentiment called so loudly for an opportunity of obtaining that justice by force which had been refused to fair argument, that he granted us that reasonable satisfaction which had been so long withheld. Sir, had he not seen the approaching storm, no atonement for that wanton outrage on our national sovereignty had yet been made. If you now say that you will not prosecute the war, the enemy must view it as a decision pronounced by this Government, that war shall not be waged by the American nation for the impressment of her citizens, or for depredations committed on commerce. It might as well be said, in plain, intelligible language, that the ocean is to be abandoned by the people of the United States, except so far as depends on the will of Great Britain. If both the property and liberty of American citizens on the ocean are subject to her disposal, you cease to possess the rights of a sovereign and independent nation. For my own part, if we have the right to claim security for the liberty and property of our citizens against that nation, of which no man dare express a doubt, I am for asserting it until the object is attained, or the ability of this nation fails; of the latter I have no fear. It is pretended that this Government is not desirous of peace, and that this is a war of conquest and ambition. I beg gentlemen to refrain from making statements which they themselves do not believe. After the declaration of war, what has been the conduct of the Executive? Through Mr. Russell, our Chargé des Affaires at London, they have offered to conclude an armistice on terms which would remove every pretext for complaint on the part of Great Britain. He proposed that this country should exclude from her service British seamen. It is true that Lord Castlereagh urged Mr. Russell's want of powers, and stated that the American Congress alone could make the necessary provisions on that subject. If, however, sincerity had existed with the British Ministry, a temporary arrangement could have been made, by which hostilities would have been suspended until the legitimate authorities of this country could have expressed an opinion. If Mr. R. had not adequate powers to conclude an armistice, the proposition made by Mr. Monroe to Admiral Warren was not liable to the same objection. In substance, both propositions were the same; to the latter, no offer of compliance has been tendered. If I have any objections to the late overtures made by the Executive, it is that too great an anxiety for peace is manifested; but when the nature of our institutions is consulted, a strong propensity for domestic quiet is discovered; and, therefore, the Administration should be indulged in any measure calculated to restore harmony between the two countries, provided the honor and interests of the nation are not compromitted. I ask gentlemen in opposition to lay aside party feelings, and reflect whether, if we now recede, points are not conceded to the enemy, which they would not yield if in power. They affect to be the followers of WASHINGTON. I will show them what his opinions were on the subject of impressment. From them the pretended Washingtonians of the present day will discover their degeneracy. Yes, sir, the Father of his Country too well understood the value of liberty ever to consent that the most obscure individual of his country should be deprived of it by a foreign despot. So early as the year 1792, the British nation commenced the practice of impressment, as now exercised by it. On the 11th day of June, in that year, the then Secretary of State addressed a letter to Mr. Pinkney, the American Minister at London, in which the practice of impressment is strongly reprobated; and let it be remembered, that although this letter was written by the Secretary, it contained the sentiments of the President of the United States. In order that the House may more fully comprehend what were the sentiments of that man, whose memory we all venerate, I will read so much of the letter referred to, as relates to this subject: "The peculiar custom in England of impressing seamen on every appearance of war will occasionally expose our seamen to peculiar oppressions and vexations. It will be expedient that you take proper opportunities in the mean time of conferring with the Minister on this subject, in order to form some arrangement for the protection of our seamen on those occasions. We entirely reject the mode which was the subject of a conversation between Mr. Morris and him; which was, that our seamen should always carry about them certificates of their citizenship. This is a condition never yet submitted to by any nation--one with which seamen would never have the precaution to comply. The casualties of their calling would expose them to the constant destruction or loss of this paper evidence; and thus the British Government would be armed with legal authority to impress the whole of our seamen. The simplest rule will be, that the vessel being American, shall be evidence that the seamen on board her are such." If, at so early a period, the right of search for men was objected to by this Government, how much more forcible is the objection now? We were then a young nation; we have since increased in resources by which our rights can be maintained; whilst the violation of those rights have been augmented in a greater degree. On the 6th of November, 1792, the Secretary of State wrote to the American Minister at London a letter, in which, when speaking on the subject of impressment, the following language is used: "It is unnecessary to develop to you the inconveniences of this conduct, and the impossibility of letting it go on. I hope you will be able to make the British Ministry sensible of the necessity of punishing the past and preventing the future." I know, Mr. Speaker, that there is danger of fatiguing the House by recurring to documents of this sort, but my apology is a good one: those to which I refer have never been printed for the information of the members of this House, nor have the public had an opportunity of inspecting them. I hope, therefore, to be indulged in pursuing the sentiments of former Administrations further on a subject of so much interest. On the 20th of February, 1800, Mr. Pickering, Secretary of State, addressed the President of the United States on the subject of a proposed treaty between the two countries, upon which occasion he makes the following remark: "That he transmits Mr. Liston's note of the 4th of February, together with his project of a treaty for the reciprocal delivery of deserters; which appears to the Secretary utterly inadmissible, unless it would put an end to impressment; which Mr. Liston seemed to imagine, while the seventh paragraph of his project expressly recognizes the right of impressing British subjects, and consequently American citizens as at present." Mr. Wolcott, Secretary of the Treasury, when giving his opinion to the President, says--"That the project of a treaty proposed by His Britannic Majesty for the reciprocal delivery of deserters from the land and naval service, does not sufficiently provide against the impressment of American seamen, and is therefore deemed inadmissible." Mr. Stoddert, who acted as Secretary of the Navy, at that period, when advising the President on the same subject, says--"That the Secretary is clearly of opinion that it is better to have no article, and meet all consequences, than not to enumerate merchant vessels, on the high seas, among the things not to be forcibly entered in search of deserters." The letter of the present Chief Justice of the United States to Mr. King, Minister at London, dated on the 20th of September, 1800, places this subject in a strong light; he says-- "The impressment of our seamen is an injury of very serious magnitude, which deeply affects the feelings and the honor of the nation. This valuable class of men is composed of natives and foreigners, who engage voluntarily in our service. No right has been asserted to impress the natives of America. Yet they are impressed; they are dragged on board British ships of war, with the evidence of citizenship in their hand, and forced by violence then to serve until conclusive testimonials of their birth can be obtained. These must most generally be sought for on this side the Atlantic. In the mean time acknowledged violence is practised on a free citizen of the United States by compelling him to engage and to continue in foreign service. Although the Lords of the Admiralty uniformly direct their discharge on the production of this testimony, yet many must perish unrelieved, and all are detained a considerable time in lawless and injurious confinement. It is the duty as well as the right of a friendly nation to require that measures be taken by the British Government to prevent the continued repetition of such violence by its agents. This can only be done by punishing and frowning on those who perpetrate it. The mere release of the injured, after a long course of service and of suffering, is no compensation for the past and no security for the future. It is impossible not to believe that the decisive interference of the Government in this respect would prevent a practice, the continuance of which must inevitably produce discord between two nations which ought to be friends to each other." In another part of the same letter, Mr. Marshall observes, "the United States require positively that their seamen who are not British subjects, whether born in America or elsewhere, shall be exempt from impressment." From these documents we clearly collect what was the view which the first and second Presidents of the United States had on this subject, and that of the principal officers of the Government. It appears that this exemption from impressment is no new claim set up by men now in power. It is as old as the Government itself, and there never has been, nor can there be, an Administration in this country who dare surrender this point to any foreign power. Once relinquished, we had as well abandon the ocean altogether. If the liberty of American citizens is to be subject to the will, not of the English Government, but what is infinitely worse, of every petty officer that navigates a British ship, it is in vain that we boast of freedom; we do not possess it; and only let the British Government understand you distinctly on this point, and you need talk no more of American commerce. It has been said, by a gentleman from North Carolina, (Mr. PEARSON,) that, if we exclude British seamen from our service by law, one of two things must happen--either a peace would be the result, or the people of this country _all_ unite in a vigorous prosecution of the war. If I have mistaken the meaning of the gentleman, I wish him to correct me at this time, and answer the question directly, if, in that event, he will support the war? [Mr. PEARSON explained.] Mr. GRUNDY proceeded: Sir, from the explanation given, it will, I fear, be as difficult to come to an understanding with that gentleman, as it is to accommodate the points in dispute with the British Ministry; for, although the gentleman says he will not surrender an essential right of the country, a question might be made by him as to what were essential rights. I will, nevertheless, Mr. Speaker, make one more effort to elicit the opinion of the gentleman on this subject. I ask him whether he considers the impressment of American seamen "a violation of an essential right of this country?" [Mr. PEARSON said he so considered it.] Then, said Mr. GRUNDY, from the gentleman's own declaration he is bound to support us in the war, if the principle of impressment is not relinquished by Great Britain. I have no hesitation in saying that, in a time of peace, I am willing British seamen, not naturalized in this country, should be excluded from our service. I believe that such a regulation would inflict no injury or inconvenience on the country. Whenever, therefore, a proposition to this effect is made, so as to take effect at the conclusion of the war, I shall vote for it. I consider it a direct encouragement to our own seamen, calculated to foster and cherish the enterprise and industry of that important class of our citizens. THURSDAY, January 7. Mr. BLEECKER.--Mr. Chairman: I have a very few, very desultory, and I fear very unimportant observations to make on the subject now before the committee. They will be few, not because the subject does not abound with various fruitful and interesting topics, but because an indisposition of some days has unfitted me for any considerable effort of memory. I was opposed to the war when it was declared, because I was confidently persuaded that the evils of which we complained were of a nature not to be remedied by war. I thought, too, sir, that by entering into war, we were plunging ourselves into evils a million fold greater than those from which we sought to be relieved. I was opposed to the war, because I thought that, notwithstanding all the decrees and orders of the belligerents affecting our neutral rights, we might enjoy a commerce more extensive and profitable than we could have in a time of European peace. The war in Europe was, in fact, a blessing to this country. I was opposed to the war, because I knew that the whole of one of the great political parties in the Northern and Eastern, the most commercial section of the country, which was most interested in the avowed objects of the war, openly condemned it; and I believed that a great portion of the other party was secretly opposed to it. This objection was to my mind perfectly conclusive. If there had been no other reason against the war, this was enough. What, sir, go to war when that part of the country which has most of its wealth, strength, and resources, is decidedly opposed to it! go to war for commercial and maritime rights, when the people of that part of the country which is principally interested in its commerce and navigation, openly execrate war! It seemed to me that it became legislators who were disposed to exercise a paternal regard over the interests of the nation, to give up their own opinions, their prejudices and partialities, rather than go to war with a people thus divided. And permit me to say, sir, without any disparagement to the members of this House, that thousands and tens of thousands of the inhabitants of that part of the country of which I have been speaking, are as competent to understand the true interest and honor of the nation, as gentlemen who happen to be members of Congress. I was opposed to the war, because I thought it might expose our happy form of Government--our excellent political institutions--to a dangerous trial. I was afraid, sir, that the war might produce a pressure upon the Government which it would not be able to sustain. I was opposed to the war, and this was the bitter draught, because it brought us into concert and co-operation with the great destroyer, the grand enemy of freedom and humanity throughout the world. I was opposed to the war, because I believed the state of things in Europe, out of which our difficulties arose--a state of things which the United States had no power to control--was in its nature transient. Rather than plunge ourselves into the vortex of European politics; rather than encounter the evils and dangers of war, I thought it would be wise and prudent to wait until "the troubled waters should subside, and the ancient landmarks of the world reappear above the flood;" with a living statesman, I thought I saw in the very cloud which blackened all our horizon, the bow which was set for a token, that the tempest would not be forever. But, sir, war was declared, and the doctrine has since been promulgated, that it is now the duty of every man to support it; that all inquiry must be hushed, and all examination of its expediency and propriety cease. So far as this doctrine inculcates obedience to the laws, it has my cordial approbation; but inasmuch as it denies the right of the citizen to examine into the causes of the war, to express and publish his opinions respecting its policy, it is an insult to the understanding of an intelligent people, and inconsistent with the character and spirit of the constitution. War is declared by law. How shall the law be repealed? How can we get rid of the war, if we may not say that it is inexpedient, impolitic, and ruinous? How abominable the doctrine is, that the declaration of war shuts the door against all inquiry, is manifest from the consideration, that it would enable a wicked Administration to perpetuate its power by declaring war. Again, sir, I would ask the advocates of the doctrine I am reprobating, when will it be proper to show the folly and ruinous consequences of the war? Suppose the war to have continued five or ten years, and the country to be impoverished, its commerce annihilated, its resources exhausted, its best blood expended in wild and fruitless projects of conquest, the people oppressed by debts and taxes, will it then be deemed improper to expose the absurdity and mischief of continuing the war? Surely, sir, it will be patriotic and laudable to alarm the people, to entreat them to put an end to that which is the cause of their calamities. And if such conduct will _then_ be proper, it must be laudable and patriotic _now_ to show them their evils and dangers, and to point them to the means of escape. But, sir, what has been the state of the country since the declaration of war? I speak again in reference to public opinion. The people of the North and East have poured out their feelings and opinions, their complaints and groans, in addresses, petitions, resolutions, and remonstrances against the war. Look, sir, at the Presidential election, and you see all the Northern and Eastern States; with the exception of Vermont, arrayed against the Administration. You see the people disregarding the old line of party division and distinction. Yes, sir, in spite of such division and distinction, "burying their mutual animosities," their ancient prejudices, "in their common detestation" of the policy of the Government, rising up in their might and strength to manifest their hostility to the course of measures it has pursued. This, Mr. Chairman, is a state of things which ought to arrest the attention, and engage the reflection of the National Legislature, for without that section of country our strength is weakness. I know how ungracious and invidious topics of this kind are to some gentlemen. But, sir, we cannot help it that the country is made up of sections. We are legislating for such a country, and it is our business and duty to regard the circumstances, the interests, and feelings of the people of different parts of the Union. We declared war for commerce; the people most interested in commerce were opposed to it. We continue the war for sailors' rights, and three-fourths of our native American seamen belong to New York and the Eastern States, the people of which are sighing for peace. It ought to be remembered, too, sir, that the war itself must have the effect of driving a vast portion of our sailors out of the country into foreign service. But, Mr. Chairman, whatever may have been the reasons for declaring war, the question is not now what it was when war was declared. Our relations with the belligerents have materially and essentially changed. So much have they changed, that I declare, without fear of contradiction, that had they been on the 17th of June last what they now are, we should not have gone to war. I hope no gentleman of this committee will deny this. But if any gentleman should deny it, the nation will not believe him. Sir, we have received new, important, and interesting evidence of the true state of our foreign relations since the declaration of war. Facts which were then unknown, and which have shed a flood of light upon the situation and policy of the United States, have since been published to the world. The repeal of the Orders in Council itself, by removing the principal cause of the war, has produced a most material change; for had they been repealed before the war was declared, there would have been no war; and let it be remembered, that they were repealed before the war was known in England. But this is not all to which I refer. I mean to speak of the evidence we have received respecting our relations with France; and I hope gentlemen will not be startled or offended by what I am about to say. I declare confidently and boldly _that Napoleon has inveigled us into the war_. He has cajoled and deceived us. But for his arts, intrigues, and duplicity, the United States would not now have been at war with Great Britain. Yes, sir, he has led us on step by step, until he brought us to the edge of the precipice, and plunged us into the abyss. We have been humbled and mortified. He has triumphed over our character, our honor, our rights, our independence. I do not say these things hastily, carelessly, or lightly. And I will add, that after the discovery of the deceit and duplicity which the Emperor of France has practised upon us, it became the duty of this Government to go back to the ground it occupied before the President's proclamation of November, 1810, or to declare immediate war against France. A proper regard to the honor, the character, and independence of the country, demanded this of its Government. Sir, the proof of what I have said is plain; and it is time that it be stated here, and spread before the nation. I beg the attention of the committee to the facts on which it rests. I need not go back farther than to the law of May, 1810, which provided that the non-intercourse act should cease, as to that belligerent which should _first repeal_ its decrees violating our neutral rights, and that it should operate on the other, which should fail so to do, within three months after the President's proclamation of the fact of such repeal. This law, and the conduct of the President under it, are the immediate cause of the war, and the present unhappy state of the country. On the 5th of August, 1810, the Duke de Cadore wrote his famous letter to General Armstrong, the American Minister in Paris, stating that the Berlin and Milan decrees would, upon certain conditions, cease on the first of November then next. On the authority of this letter, the President of the United States issued his proclamation, declaring the fact, that the French decrees were repealed. But the British Government, not considering the letter of the Duke de Cadore sufficient evidence of their repeal, did not revoke their Orders in Council, and, in consequence, our non-intercourse act went into operation against Great Britain the February following. Notwithstanding the proclamation of the President, great doubts existed in this country, whether the French decrees were in fact repealed. To remove these doubts, to confirm the proclamation, to prevent inquiry and investigation in the judicial tribunals of the country, the act of March, 1811, was passed. Yet, sir, it has ever since been denied that the decrees of Berlin and Milan were repealed. The public prints have teemed, and the tables of this House have been loaded with the proofs of their existence and execution. You remember, sir, an impressive argument, in many respects original, an unanswered and unanswerable argument of the honorable gentleman from Virginia (Mr. RANDOLPH) on this subject in this House, towards the close of the last session. But, sir, notwithstanding all this, this Government persisted in declaring that the French decrees were repealed. I do not mean to discuss that stale matter. The statement I make is necessary to my present purpose. The question of their repeal was the subject of a very voluminous and long-continued correspondence between Mr. Foster, the British Minister, and our Secretary of State. The discussion, I believe, was protracted to the last moment of peace. War was declared on the 18th of June. Some weeks afterwards, appeared in this country a decree of Napoleon, issued in May last, and bearing date the 28th of April, 1811. This is an extraordinary paper, and deserves some attention. I will read it: "APRIL 28, 1813. "_Napoleon, Emperor of the French, &c._ "On the report of our Minister of Foreign Relations: "Seeing, by a law passed 2d March, 1811, the Congress has ordered the execution of the provisions of the act of non-intercourse, which prohibits the vessels and merchandise of Great Britain, her colonies and dependencies, from entering the ports of the United States. "Considering that the said law is an act of resistance to the arbitrary pretensions consecrated by; the British Orders in Council, and a formal refusal to adhere to a system invading the independence of neutral powers and of their flag; we have ordered, and do decree, as follows: "The decrees of Berlin and Milan are definitively, and to date, from 1st November last, considered as not existing in regard to American vessels." Now, sir, did this decree exist at the time of its date? No, sir, the date is _false_. If the decree existed in April, 1811, why was it not communicated to this nation, the only one interested in the subject? Why was it not communicated to Mr. Russell, who so strongly urged upon the French Government the necessity of furnishing some evidence of the repeal of the decrees. For the purpose of communicating some satisfactory information on that subject to this country, he detained the John Adams in France, in _July_, 1811. You will remember Napoleon's decree is dated in _April_. Permit me here to read a passage of Mr. Russell's letter to Mr. Monroe, dated the 15th of July, 1811. "On the 14th of June, Mr. Hamilton, of the John Adams, reached Paris, and informed me that this vessel had arrived at Cherbourg. Unwilling to close my despatches by her, without being able to communicate something of a more definite and satisfactory character than any thing which had hitherto transpired, I immediately called at the Office of Foreign Relations, but, the Minister being at St. Cloud, I was obliged to postpone the interview which I sought until the Tuesday following. At this interview, I stated to him the arrival of the frigate, and my solicitude to transmit by her to the United States some _act_ of this Government, justifying the expectation with which the important law which she had brought hither had, undoubtedly, been passed." After Mr. Russell had left Paris, he wrote from England to Mr. Barlow, who succeeded him, "for additional proofs of the removal of the decrees." Mr. Barlow seems to be very anxious "to get the treaty through, carrying an unequivocal stipulation, that shall lay that question to rest." But it was all in vain; no authentic evidence of the repeal was furnished. This decree did not exist; and why was it not issued? Why was the evidence of the repeal of the decrees withheld? The answer is obvious. _The United States were not yet committed to go to war with Great Britain._ Napoleon knew very well that when _proper_ evidence of the repeal of his decrees was furnished, the English Orders in Council would be repealed, and the United States would not go to war with Great Britain. For, sir, he knew very well, and we know very well, that for the subject of impressments alone, this country would not go to war. It cannot be denied, that for this cause we should not have declared war. This Government has never been disposed to go to war on that ground alone. The present President of the United States made an arrangement with Mr. Erskine, which gladdened the heart of every man in the nation, without any provision on that subject, without any mention of it; and there was not a murmur in the country, on account of its omission. Mr. Pinkney, too, as stated by the gentleman from Georgia, (Mr. TROUP,) yesterday, again and again, offered to accommodate with England, on the rescinding of the Orders in council, without any reference to impressments. Sir, this decree itself is an insult to this Government. It is issued expressly, because we had taken our stand against England; it is declared to be issued in consequence of our act of March, 1811, when, in fact, the President's proclamation and the act of March were founded on the repeal of the decrees. To show the correctness of my remarks on this part of the subject; to show that Napoleon has triumphed over our honor and character, I beg leave to call the attention of the committee to Mr. Russell's letter to Mr. Monroe, dated the 9th of June, 1811. His language does credit to his understanding and feelings: "To have waited for the receipt of the proclamation, in order to make use of it for the liberation of the New Orleans Packet, appeared to me a preposterous and unworthy course of proceeding, and to be nothing better than absurdly and _basely_ employing the declaration of the President, that the Berlin and Milan decrees _had been_ revoked, as the means of obtaining their _revocation_. I believed it became me to take higher ground, and without confining myself to the mode best calculated to recover the property, to pursue that which the _dignity_ of the American Government required. "A crisis, in my opinion, presented itself, which, was to decide whether the French edicts were retracted as a preliminary to the execution of our law; or whether, by the non-performance of one party, and the prompt performance of the other, the order in which these measures ought to stand was to be reversed, and the American Government shuffled into the lead, where _national honor_ and the law required it to follow." It would have been _base_ to have employed the President's proclamation, that the Berlin and Milan decrees had been revoked as the means of obtaining their revocation. But what, sir, is the price we have at length paid for the repeal? The President's proclamation was not enough; the act of March added to it was not enough; we could not procure the revocation till we went to war. For, sir, the Emperor would not issue this decree till he knew that we were pledged and committed to go to war with Great Britain. How he knew this, sir, it is not for me to say. We all know, however, that he had all the acts of this Government to satisfy him of the course we were pursuing--the step we were about to take. He had the President's Message, the report of the Committee on Foreign Relations, the war speeches of the members of this House, the laws for raising armies, and the embargo. In the month of May, then, when the policy of this country in relation to Great Britain was settled, he issued his decree, just in such time, too, sir, that it could not reach this country till we had plunged into the war. And well, in such a state, might he repeal his decrees, which, by the war itself, would be superseded--would become a nullity. Thus, sir, believing the French decrees to be repealed, we departed from our neutral stand by enforcing the non-intercourse law against Great Britain. We have in vain waited for such evidence of their repeal as would have induced Great Britain to rescind her Orders in Council--the great cause of the war. Their revocation depended upon the repeal of the French decrees; and had they been revoked, there would have been no war between the United States and Great Britain. The decree, declaring the edicts of France to be revoked, is at length issued, when the Emperor knows it is too late to prevent the war. The decree is communicated to the English Government, the Orders in Council are revoked on the ground of the repeal of the French decrees, but the United States have declared war. How, sir, can I make this matter plainer? Our whole course against Great Britain has proceeded from the belief of the repeal of the Berlin and Milan decrees; but that evidence of their repeal, which would have stopped our course, by means of which the Orders in Council would have been revoked, and the war would have been avoided, is withheld till the Emperor knows that war is inevitable. Thus, sir, have we been duped, deceived, and inveigled. I repeat it, sir, had we, on the 17th June, understood our foreign relations as we now understand them, we should not have declared war. And would it not have been just and magnanimous in this Government, when all doubt was removed on the subject of the French decrees, to have acknowledged its error? Did not the honor, the character, the independence of the country require of us to go back to our original neutral ground? I rose principally for the purpose of presenting this view of the arts and deceit of the French Emperor to the committee. I regret that I have not done it more fully and clearly; and I hope that some gentleman more competent to a proper examination of the subject will yet take it up before we get through this discussion. Mr. TALLMADGE said he felt a peculiar embarrassment in rising to offer to the consideration of the committee some of his own reflections on the important subject now under debate, from a twofold consideration. In the first place, the magnitude of the question might claim the aid of more exalted talents than he pretended to possess, and, therefore, to do it justice, he feared, would not be in his power. For, said Mr. T., in the extensive range of debate which has been permitted by the Chair, the whole field of our foreign relations has been open to examination, and the policy of our own Government in relation to Great Britain has been deemed fairly within the range of discussion. In the second place, the gentlemen who had preceded have occupied the ground so ably, and discussed the subject so extensively, that it was somewhat difficult to present arguments entirely novel to arrest the attention of the committee. Having a belief, however, that there were some important considerations, in relation to the bill now under debate, which had not yet been brought into view, he begged the attention of the committee while he endeavored to lay before them the views which he had taken of the subject, and which constrained him most decidedly to oppose the passage of the bill. Before I enter upon the merits of the subject, said Mr. T., I take occasion to express my hearty assent to declarations made by honorable gentlemen that this is no time to indulge the bickerings of party; and that it is greatly to be desired that all distinctions of this sort were entirely laid aside and forgotten. Sir, I should consider it the most auspicious event of my life if I could see every gentleman on this floor determined to take and maintain the true old American ground occupied by the patriots of '76. Although it may be painful to the feelings of an honorable mind to be assailed with odious appellations, and charged with duplicity and falsehood, yet the mind which has virtue for its basis, a conscious integrity for its support, and firmness sufficient to enable the man to do his duty, may hope to pass unhurt by such malicious darts. Standing, as I do, in the highly-responsible situation of one of the legislators of this extensive country, I hope to have stability and integrity sufficient to enable me to discharge my duty to my constituents. If, after having passed through the Revolutionary war, and having never changed my political creed to the present day, an odious epithet could induce me to alter my course, I should be unworthy the confidence of my country. But whence, Mr. Chairman, proceeds this system of slander and abuse? From the foul presses of our country. To whom are some of the fairest characters which have ever adorned this or any other country indebted for the odious epithets of monarchists, foreign agents, tories, and the like? To your imported patriots, who, weary of the dull pursuits of industry on their native soil, or escaping from the justice of the laws of their own country, have fled to this happy land to instruct its inhabitants in the true principles of liberty and equality. To this set of newly-fledged politicians, and men of a similar stamp, is this once happy country indebted for one-half the miseries and much of the disgrace which it suffers. I have been led into this digression in consequence of remarks which have fallen from the other side of the House, but will now return to my subject. A gentleman from New York, (Mr. STOW,) who addressed you early in this debate, told us that he reprobated the war, and had no confidence in the Administration to conduct it to a successful issue, but should vote for the bill to enable them to carry it on. This is strange political logic to my understanding. While I subscribe fully to his premises, the reasonings of my mind bring me to a very different result. Because I deprecate this war as pregnant with great evils, if not ruin to my country, I will, therefore, take all constitutional measures to bring it to a speedy and honorable close; and because I have no confidence in the Executive department of our Government, nor in the subordinate agents who have been appointed to vote for this bill, which, if adopted, will enlist still greater evils on this devoted country. In presenting the subject to this honorable committee, in its most appropriate form, it may be proper to examine into the prominent causes of our dispute, which has terminated in open war with Great Britain. These I take to be three, viz: 1. The Orders in Council. 2. Impressment of our seamen. 3. The attack upon the Chesapeake. That we may narrow the point in controversy as much as possible, I remark that ample and satisfactory atonement having been made for the violation of our rights by the attack on the Chesapeake, one cause of disquietude and a prominent one too, has been finally removed. It has indeed been frequently remarked on this floor, that the satisfaction offered for the unauthorized attack on the frigate Chesapeake was long delayed, and very reluctantly offered. However painful it may be to censure the conduct of our own Government, yet a sense of justice obliges me to say, that to every overture made by Great Britain to accommodate this unpleasant affair, our Administration attached some exceptionable condition which closed the door to an amicable adjustment. The committee cannot have forgotten the early disavowal of this wanton aggression on the honor of our flag by the British Government, and the tender of satisfaction which was made, but failed because our Minister was instructed to couple with this complaint the subject of impressment; nor can they have forgotten how indignant the Ministry and nation were when the President assumed the right of judging what would best comport with the honor of their King. Few, I believe, who read the offensive remark, expect a different result from that which ensued. And while I am upon this subject I take occasion to remark, that in all our attempts to negotiate with the British Government there seems to have been some untoward circumstance, some unfortunate condition, either accidentally or intentionally, attached to the question at issue, which has defeated the negotiation. It would be within the scope of my present plan to take a particular review of the British Orders in Council, as well as the subject of impressments. But inasmuch as the documents relating to these two subjects have been laid on every gentleman's table; and more especially when I reflect that both topics have been very ably discussed by some gentlemen who have preceded me, and especially by the gentleman who has just sat down, (Mr. BLEECKER,) I shall content myself with taking but a brief review of these prominent, and I may add, the only remaining causes for the present war. As to the Orders in Council, it ought not to be forgotten, that during several lengthy discussions to obtain their repeal, as well by our Ministers in London, as at this place, they have been considered as the prominent point in dispute. So, again, as to the origin of our restrictive system; it cannot be forgotten that the friends and abettors of those measures uniformly professed that they were adopted as retaliatory for the Orders in Council. From the first partial non-importation act, which passed on the eighteenth of April, 1806, down to the law of the second of March, 1811, the object has been, on the very face of the law, to procure a repeal of the Orders in Council, and of the Berlin and Milan decrees. If any doubt should remain on the mind of any member of this committee as to this fact, I beg him to turn his eye to the restrictive code, and I presume he will find the evidence to be abundant and complete. In this system of anti-commercial regulations, I find the origin and progress of our present political calamities. And here, Mr. Chairman, I shall readily admit, that we had grievances and complaints, great and heavy, against both of the belligerents; nor have I the least inclination to palliate or excuse them. My object is to show, what I have uniformly expressed on this floor, that our system of non-importation, non-intercourse, and embargo, have been directed against the Orders in Council, as to Great Britain, and nothing else; and finally, have brought this country into a ruinous war. Is there a man within these walls, who does not now believe (as was fully predicted when the law passed) that the conditions held out to the two great belligerents, to induce them to repeal their obnoxious edicts, violating the neutral commerce of the United States, placed the execution of our law in the hands of a foreign Government? Is there a man of ordinary capacity in the United States, having the means of information, who now believes that the Berlin and Milan decrees were repealed on the 1st of November, 1810, according to the proclamation of the President of the United States, solemnly announcing that fact; and that they thenceforward ceased to violate our neutral commerce? Does not candor constrain all to confess that, long after the pretended repeal of the aforesaid decrees, our commerce was harassed in every sea where French cruisers could reach it? Need I point you to the piratical seizures and burning of American property in the Baltic, the Mediterranean and the Atlantic seas, by the privateers and fleets of the French Empire; subsequent to this pretended repeal, and sanctioned expressly by its authority? If all other evidence should be deemed insufficient, I inquire whether the French Emperor himself has not sufficiently humbled this country (if indeed our cup of humiliation had not been full before) by his own formal antedated repeal of his Berlin and Milan decrees, long subsequent to the time imposed on the President by the Duke of Cadore? It cannot have escaped the attention of the committee, or of the nation, that Napoleon's decree, respecting the Berlin and Milan decrees, bears date the 28th of April, 1811, and is explicitly bottomed on the law of Congress passed March 2, 1811; the sole object of which law was to confirm the proclamation of the President which had then been issued more than four months, and the legality of which had become very questionable. This decree may be found among the documents accompanying the President's Message of November 4th, 1812, and on the forty-sixth page of those printed papers. If further evidence should be needed to prove the abominable fraud of this transaction, it may be found in the correspondence of our Minister at Paris, in the summer of 1811, wherein he remarks, that he had repeatedly demanded evidence of the repeal of the Berlin and Milan decrees, but none could be obtained. And yet, forsooth, we are now furnished with a decree dated in April preceding, but not issued until we are so entangled in French toils, that war with Great Britain was inevitable. If this fact alone had been understood, I put it to the candor of this honorable committee to say, whether they would have consented to the declaration of war against Great Britain at the time and for the reasons which were given? I say, without fear of contradiction, that they would not. If my premises are true, and the inference undisputed, since the Government has been grossly deceived and drawn into this war, for reasons and causes which did not then exist, most assuredly it becomes our duty as well as interest to relieve the country from its pressure as soon as possible. In addition to all this, it is a singular fact in the history and progress of this war, that in five days after its declaration, (viz. on the 23d of June, 1812,) and as soon as the aforesaid decree of the French Emperor was made known to the British Ministry by Mr. Russell, an Order in Council was issued, repealing the former obnoxious orders, which had been ostensively the most prominent cause of the war; and yet the President has never issued his proclamation announcing that fact, as by the terms of the law of March 2d, 1811, he was expressly bound to do. On this failure of the President to do what the law enjoined on him to perform, as well as having issued his proclamation of November, 1810, without possessing the facts required by the law to support him, I make no comment. The account is still unsettled between him and this injured country. The Orders in Council having thus been revoked, the continuance of the war seems to rest upon the impressment of our seamen alone. Give me leave then to inquire into the grounds of this practice, as claimed by Great Britain. Is it not bottomed on the ancient doctrine of perpetual allegiance--or in other words, that the native-born subject can never so expatriate, as that the mother country may not claim his service in time of war? Is this a novel doctrine, either as to time, or the nation who now attempts to enforce it? I venture to say that Great Britain has practised upon this principle ever since she has been a nation; and it is farther manifest that France, and all the maritime powers of Europe, have maintained the same doctrine. Nay, sir, we maintain the same doctrine in our own country; in proof of which, witness the President's proclamation at the commencement of this war; and notice also the recent case of Clark the spy, who was condemned to suffer death by a court martial, and was pardoned by the President on the ground of his owing allegiance to the United States, although residing in an enemy's territory, and having been naturalized or sworn allegiance to the King of Great Britain. Hence it would seem, that the principle set up was not novel nor singular. But what is the principle in contest between the two Governments? Great Britain claims the right to visit neutral merchant ships on the high seas; and if she finds any of her natural born subjects, to take them into her service. The Government of the United States denies to her this right, and asserts, that a foreigner naturalized in this country, is absolved from all allegiance to the parent State. The practice of Great Britain under her principle, has undoubtedly subjected some of our native citizens to capture and involuntary service, from causes which I need not here repeat. In all such cases, I take it to be admitted on all hands, that she sets up no claim, and therefore every abuse of this sort is capable of remedy. But on this head I have no hesitation in expressing my unqualified belief, founded on documents which have been laid on our tables, that the list of such impressed seamen is greatly exaggerated. Out of the number six thousand two hundred and fifty-seven of American citizens said to have been impressed, and forming a standing head piece to the list of our grievances, I very much question if five hundred native Americans can be found among them all. The documents lately furnished by the Secretary of State, if carefully examined, will serve very much to substantiate this fact. Many names are there returned who have only forwarded their claims to our Consul at London, and who, very probably, never set foot on American ground. Others again are continued on the list who have been discharged years ago, and others who have voluntarily engaged in her service. The question then at issue, I take to be this--Shall the war with Great Britain be continued to oblige her to relinquish the practice of taking from our merchantmen her native British sailors? If we could obtain the principle by continuing the war, I think it can be demonstrated, that it would be injurious to the American seamen to have it so established, inasmuch as it would, by increasing the number of our seamen, necessarily diminish their wages. But, circumstanced as Great Britain is, contending for her existence against the most formidable power on earth, and resting her last hopes upon her navy, I presume she will never relinquish the principle. The inquiry has been made, with some solicitude, what will you do with _naturalized foreigners_? I answer, treat them hospitably, and extend the arm of protection and all the blessings of government to them while they continue within your territorial jurisdiction; but if they leave your territory, and choose to go upon the great highway of nations, the risk and the choice are their own, as will be the peril. Put the case fairly to the yeomanry of our country, and let them understand the subject, that this war is to be carried on for the purpose of protecting foreigners while sailing on the high seas, and I very much incline to the opinion, that they would, dismiss the authors of this war from further service, or oblige them soon to bring it to a close. Sir, I will not consent to waste one drop of pure American blood, nor to expend a single dollar, to protect, on the high seas, all the vagabonds of Europe. Valuable as may have been the acquisition in obtaining many great and good men as emigrants from Europe, still I must maintain the opinion, that all the blessings of liberty and domestic government, which are secured to them in common with our native citizens, ought to be an ample compensation. I know it is no easy matter to draw the precise line where protection shall cease; but in a question of such moment as peace or war, the prosperity and happiness, perhaps the misery and ruin of our country, I cannot hesitate as to the course proper to be pursued. With respect to protections, they have become so much a matter of bargain and sale, that having been counterfeited and sold in almost every port in Great Britain, as well as in America, they have long since ceased to answer any valuable purpose. It has been a fact long since well established, that a foreigner, who could scarcely speak our language, could procure a protection in Great Britain purporting to be evidence of his _American citizenship_. This then may account for the light and contemptuous treatment given to this species of evidence by the officers of the British navy. FRIDAY, January 8. _Mounted Rangers._ Mr. JENNINGS said that it must be recollected by the House, that the act which was passed at the last session of Congress, for the raising certain companies of rangers for the protection of the frontiers, had expired. Those rangers were raised under the apprehension of attacks from the savages; and these apprehensions have unfortunately been realized far beyond the general anticipation. When those companies were raised, Mr. Speaker, we expected long since to have taken possession of the British Province of Upper Canada, thereby to have intercepted the connection and communication between the British and the northwestern Indians. It will therefore readily be perceived, that in consequence of our disappointed expectations in that quarter, the northwestern frontier will be more exposed to the savage knife and tomahawk, at the opening of the approaching spring, than they have been heretofore. This description of force, if again organized, and stationed at suitable points without the frontier settlements, will render it more efficient, and in a better situation to range the woods and prevent the unapprised attack of the savage upon the helpless women and children. If we had to expect invasion from a civilized foe, our situation would not excite so much terror, but the savage character draws no distinction between the helpless infant and the prisoner of war. Under such circumstances, no calculation of expenditure ought to have any weight against a measure calculated to afford a necessary and proper protection to such an important and extensive frontier of the United States. The secrecy and facility with which the savages can assail that frontier, renders it improper that we should depend entirely for protection upon the volunteers and militia of an adjoining State. They carry with them their prejudices, and too often forget the sacred rights of private property. This fact has unfortunately been verified by a petition which I presented yesterday from the territory which I represent. But I cannot believe that such is the character of the citizens of Kentucky, although I do believe that the cause of that plundering, so far as it did take place in the western part of the territory of Indiana, by a portion of the Kentucky volunteers, may be found in the unhallowed exertions of local political purposes, to impress on the minds of at least some of those volunteers, that they were to defend British agents, British partisans, and persons having connection with the savages. I shall now (said Mr. J.) present to the House the following resolutions which I have prepared, as well for the purpose of offering a bounty in lands to those who would volunteer their services as rangers for the protection of the northwestern frontier, as for the purpose of inquiring into the expediency of paying the militia and volunteers who have already rendered important services in shielding the helpless from savage cruelty:-- "_Resolved_, That the Committee on Military Affairs be, and they are hereby, directed to inquire into the expediency of authorizing the President of the United States to raise at least twelve companies of rangers, by the acceptance of volunteers or enlistment for one year, to be mounted or otherwise, as the service may require. "_Resolved_, That the said committee inquire into the expediency of allowing a bounty in land to those who shall tender their services as rangers, and be accepted by the President of the United States. "_Resolved_, That the said committee inquire likewise into the expediency of making provision for compensating the militia or volunteers, who may have been called out, or whose services may have been accepted by the Executives of either of the territories of the United States." The resolutions were ordered to lie on the table. _Additional Military Force._ The House again resolved itself into a Committee of the Whole, on the bill from the Senate authorizing the raising of twenty thousand men, for one year, if in the opinion of the President of the United States the public service shall require it. Mr. WHEATON said: Mr. Speaker, every intelligent man, whose age has given him an opportunity of combining experience with observation, must know that there are times when, on certain questions relating to the great interests of the nation, the sober remonstrances of truth and reason are of little or no avail against the misguided impetuosity of public prejudice. To such a crisis, if we have not already arrived, it is greatly to be feared that we are fast approaching. To float along the current of popular opinion requires very little exertion; but the man that is placed in a situation where the public safety demands that he should stem the torrent and buffet the storm, cannot but reflect, with peculiar sensibility, on the very unequal task he has to perform. The bill, now under consideration, has opened a field of discussion on the general policy of the war, in which its advocates and opponents seem to have given full range to their imaginations; and the arguments, on both sides, have apparently been attended with various success. There can, however, be little doubt on which side the victory will finally be declared. It is well known that the majority are determined, and the bill will pass. I had therefore resolved to take no part in the dispute, but to content myself with giving a simple vote. But, reflecting that I am called upon to act on a subject by me deemed important, not only for myself, but for the good of the people whom I have the honor to represent, who will be equally interested in the result, I have felt myself impelled, both by duty and inclination, to state some of the reasons on which that vote will be grounded. The bill proposes giving authority to the President of the United States to raise twenty thousand regular troops, in addition to the thirty-five thousand already authorized by law. This may be right or wrong, proper or improper, according to times and circumstances, and the objects which the measure is contemplated to effect. Were the country invaded by a foreign foe, and a foe so powerful as to make this additional number of troops necessary for its defence, I should say it were right and proper to raise them, whatever expense it might be to the nation. But if, as the advocates of the bill profess, these men are to be enlisted, and, together with those heretofore authorized, are to form a powerful army for the purpose of foreign conquest, I have no hesitation in giving it, as my opinion, that it is improper and wrong, or, at least, as the President has told us respecting the French decree repealing those of Berlin and Milan, that "the proceeding is rendered, by the time and manner of it, liable to many objections." Objections, it is apprehended, may arise from want of powers given to Congress by the constitution, either expressed or implied, to do this thing, with its professed object in view--that is, foreign conquest. And if these are unavailing, common reason and common sense furnish objections, sufficiently strong, to the expediency of our undertaking such enterprises. Objections, for want of sufficient powers given by the constitution, may be considered as novel; but, if sound, they should nevertheless prevail. The war itself is novel, this being the first of the kind that ever we have undertaken since that instrument was formed, or since we became an independent nation. If the constitution gives Congress any power to carry on foreign wars, those powers must be collected from expressions it contains, or from some clear and necessary implication from something that is therein expressed. It will be very readily admitted, that our national Government is a Government of a very simple construction, and that it possesses very limited powers; being established by compact, not by conquest, it has not all the powers incident to the sovereignties of other countries; not produced _by_ conquest, it was not made _for_ conquest. "The enumeration of certain rights in the constitution shall not be construed to deny or disparage others retained by the people; and the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." The framers of this constitution took particular care, not only to define the powers they intended to give, but the objects to which that power should be applied, and therefore, but for those defined objects, Congress have no powers at all. The objects are first pointed out clearly and plainly, and then the powers necessary to their attainment. The people of this country, after having effected the Revolution and established their independence, considering their great transmarine distance from the nations of the Old World, and all their jarring and rival interests, flattered themselves with the expectation of long peace. Unapprehensive of being attacked at home, they had no idea of making war for the purpose of conquest abroad. "Peace and friendship with all nations, entangling alliances with none," was their motto, and the same sentiment has been sanctioned by a man, whom the advocates of this war have never ceased to admire. An aversion to standing armies was among the causes that induced the Declaration of Independence; without standing armies, it was then believed, and we now know full well, foreign wars cannot be carried on. Foreign wars did not, therefore, come within the scope of that policy that dictated the constitution. I am not insensible, that, by the constitution, a power is given to Congress to declare war, (not to make it,) but their power is not to be exercised but in the spirit of that instrument, and for the attainment of some or all of the objects for which it was framed. And what are those objects? Why, and for what was the constitution made? Its authors have told us. It was for "the forming of a more perfect union, establishing justice, insuring domestic tranquillity, providing for the common defence, promoting the general welfare, and securing the blessings of liberty to ourselves and our posterity," and all these benefits for the people that then did, or who thereafter should, belong to, or reside in the territory then embraced by the United States, and none other. The constitution was not made for any other, nor can it give jurisdiction over any other. If all or any of these objects are endangered, and it can be made to appear that raising the additional army proposed by this bill be necessary to the preservation and security of them, and can afford a rational prospect of producing such an effect, then my objections to the measure, so far as they arise from the apprehension of the want of constitutional authority, will be obviated. But here, permit me to ask, whether adding twenty thousand new troops to our present regular army, will be likely to have the effect of forming a more perfect union among the people of these States, or whether the little progress already made in the war has not produced fearful apprehensions of a sad reverse? If justice be not already established in our country, can there be any probability that a more formidable army will effect an object so desirable? No; for it is a well-known maxim, as true now as in those ancient times when it was written, that "_Inter arma leges silent_." So romantic an idea, as being able to establish justice through the world, could not have entered the heads of those that framed the constitution. Much has been said respecting the laws of nations; but they are now nowhere to be found, but in those books that treat on that subject; they were formed by the nations of the civilized world, and evidenced by the treaties, compacts, and agreements, entered into by them; but the Governments of Europe, in their struggle for power and dominion, seem to have disregarded or broken them down; and they being the majority in number, and superior in strength, it is not at present in our power to build up and enforce them. The unavoidable state of the world must be submitted to, until human nature shall, by its Great Author, be corrected. Nor can we, from what we have experienced, promise ourselves, from foreign war, an increase of tranquillity at home. But we are authorized, and are bound to provide for our common defence, and to raise armies, as well of regulars as militia, for that purpose, whenever the unfortunate situation of our country may render such a measure necessary; and our raising of a regular army could never have been contemplated by the framers of the constitution for any other purpose, and therefore give no authority so to do, and, as if conscious that this were the case, the committee that penned the act passed by Congress in June last, declaring war, made use of a form altogether unusual in other countries on similar occasions. The act declares that "war exists between the United Kingdoms of Great Britain and Ireland, and the United States;" going upon the idea, that hostilities had then been actually commenced against us by that Government, and our country invaded by a British armed force. Such a doctrine would have been very proper, and it might have been proper to raise armies in pursuance of it, had it been true. But such was not the fact. No hostile invasion of the country, by the British Government, had then been made, attempted or threatened. But some may say, and do say, that, if it were not a point then, it is now, and that, therefore, if we had no right to raise regular armies then, it being a time of peace, we may feel ourselves fully authorized now, since war has been declared, to raise new ones, or make additions to the old. This, indeed, would be contrary to a principle universally received and adopted, that no one should be permitted to take the advantage of his own wrong. I know it is a doctrine, that the ruling party in this country, both in and out of this House, are every day zealously endeavoring to inculcate, that even admitting the war to have been wrong, at its commencement, it has now become the constitutional duty of its original opponents to afford every aid and encouragement to its prosecution. But this is a doctrine that I think no one can yield his assent to, till he is made to believe that two lines, constantly diverging, may finally meet in the same point. If our country has been in any degree invaded, and such invasion be in consequence of our having first invaded the territories of the invaders, it is proper for us, by withdrawing the cause, to put an end to the effect. The last, and not the least object of the powers given by the constitution, is "to secure the blessings of liberty to ourselves and our posterity." Many arguments cannot be necessary to show the tendency of foreign wars to destroy liberty. I believe history does not furnish an instance of any people long free, after engaging in the mad projects of foreign conquest. While Rome was content with her ancient boundaries, her inhabitants were blessed with freedom; but, afterwards, jealousies, tumults, insurrections, and seditions, and those two great plagues and scourges of mankind--anarchy and tyranny--following in the train, destroyed every vestige of liberty among that people. Is there any liberty left among the people of France, or of those countries that France has conquered? Fortunate for them, if they are less enlightened than we are; for, in such case, though slaves, they may not be quite so miserable ones. "The very age and body of our constitution, its form and pressure," indicative of the genius and temper of the people that adopted it, are all opposed to the prosecution of wars for conquest. Such enterprises must not be undertaken, or the constitution must be destroyed. Gentlemen seem already inclined to attribute the disgrace and defeats that have hitherto marked our progress in this war, rather to the form and constitution of our Government, than to the weakness and folly of its Administration. The French Emperor has been extolled, and his mode of conducting wars has been more than intimated as being worth our imitation. If, in making foreign conquests, we would have his success, we must make use of his means, and then we may bid adieu to our former happy institutions, our laws, and our liberty. On this ground, therefore, I am opposed to the progress of this war. But if I had not a scruple left, as to the authority given to Congress by the constitution to make this war for conquest, (and perhaps I ought not to have,) my sense of its inexpediency, while I shall have any regard for the welfare and prosperity of my country, will forever forbid my giving it the smallest aid. Mr. H. CLAY (Speaker) said he was gratified yesterday by the recommitment of this bill to a Committee of the whole House, from two considerations: one, since it afforded to him a slight relaxation from a most fatiguing situation; and the other, because it furnished him with an opportunity of presenting to the committee his sentiments upon the important topics which had been mingled in the debate. He regretted, however, the necessity under which the Chairman had been placed of putting the question,[32] precluded him from an opportunity he had wished to have enjoyed of rendering more acceptable to the committee any thing he might have to offer on the interesting points it was his duty to touch. Unprepared, however, as he was to speak on this day, of which he was more sensible from the ill state of his health, he would solicit the attention of the committee for a few moments. I was a little astonished, I confess, said Mr. C., when I found this bill permitted to pass silently through the Committee of the Whole, and that, not until the moment when the question was about to be put for its third reading, was it selected as that subject on which gentlemen in the opposition chose to lay before the House their views of the interesting attitude in which the nation stands. It did appear to me that the loan bill, which will soon come before us, would have afforded a much more proper occasion, it being more essential, as providing the ways and means for the prosecution of the war. But the gentlemen had the right of selection, and having exercised it, no matter how improperly, I am gratified, whatever I may think of the character of some part of the debate, at the latitude in which for once they have indulged. I claim only, in return, of gentlemen on the other side of the House, and of the committee, a like indulgence in expressing, with the same unrestrained freedom, my sentiments. Perhaps in the course of the remarks which I may feel myself called upon to make, said he, gentlemen may apprehend that they assume too harsh an aspect; I have only now to say that I shall speak of parties, measures, and things, as they strike my moral sense, protesting against the imputation of any intention on my part to wound the feelings of any _gentleman_. Considering the situation in which this country is now placed, in a state of actual war with one of the most powerful nations on the earth, it may not be useless to take a view of the past, of various parties which have at different times appeared in this country, and to attend to the manner by which we have been driven from a peaceful posture. Such an inquiry may assist in guiding us to that result--an honorable peace--which must be the sincere desire of every friend to America. The course of that opposition, by which the administration of the Government had been unremittingly impeded for the last twelve years, was singular, and, I believe, unexampled in the history of any country. It has been alike the duty and the interest of the Administration to preserve peace. Their duty, because it is necessary to the growth of an infant people, their genius and their habits. Their interest, because a change of the condition of the nation brings along with it a danger of the loss of the affections of the people. The Administration has not been forgetful of these solemn obligations. No art has been left unessayed; no experiment, promising a favorable result, left untried to maintain the peaceful relations of the country. When, some six or seven years ago, the affairs of the nation assumed a threatening aspect, a partial non-importation was adopted. As they grew more alarming, an embargo was imposed. It would have attained its purpose, but it was sacrificed upon the altar of conciliation. Vain and fruitless attempt to propitiate! Then came a law of non-intercourse, and a general non-importation followed in the train. In the mean time, any indications of a return to the public law and the path of justice, on the part of either belligerent, are seized with avidity by the Administration--the arrangement with Mr. Erskine is concluded. It is first applauded, and then censured by the opposition. No matter with what sincerity the Administration cultivates peace, the opposition will insist that it alone is culpable for any breach between the two countries. Because the President thought proper, in accepting the proffered reparation for the attack on a national vessel, to intimate that it would have better comported with the justice of the King (and who does not think so?) to punish the offending officer, the opposition, entering into the royal feelings, sees in that imaginary insult abundant cause for rejecting Mr. Erskine's arrangement. On another occasion, you cannot have forgotten the hypercritical ingenuity which they displayed to divest Mr. Jackson's correspondence of a premeditated insult to this country. If gentlemen would only reserve for their own Government half the sensibility which is indulged for that of Great Britain, they would find much less to condemn. Restriction after restriction has been tried; negotiation has been resorted to, until longer to have negotiated would have been disgraceful. Whilst these peaceful experiments are undergoing a trial, what is the conduct of the opposition? They are the champions of war; the proud, the spirited, the sole repository of the nation's honor; the exclusive men of vigor and energy. The Administration, on the contrary, is weak, feeble, and pusillanimous--"incapable of being kicked into a war." The maxim, "not a cent for tribute, millions for defence," is loudly proclaimed. Is the Administration for negotiation? The opposition is tired, sick, disgusted with negotiation. They want to draw the sword and avenge the nation's wrongs. When, at length, foreign nations, perhaps, emboldened by the very opposition here made, refused to listen to the amicable appeals made, and repeated and reiterated by the Administration, to their justice and to their interests; when, in fact, war with one of them became identified with our independence and our sovereignty, and it was no longer possible to abstain from it, behold the opposition become the friends of peace and of commerce. They tell you of the calamities of war; its tragical events; the squandering away of your resources; the waste of the public treasure, and the spilling of innocent blood. They tell you that honor is an illusion! Now we see them exhibiting the terrific forms of the roaring king of the forest. Now the meekness and humility of the lamb! They are for war, and no restrictions, when the Administration is for peace; they are for peace and restrictions, when the Administration is for war. You find them, sir, tacking with every gale, displaying the colors of every party, and of all nations, steady only in one unalterable purpose: to steer, if possible, into the haven of power. During all this time the parasites of opposition do not fail by cunning sarcasm or sly inuendo to throw out the idea of French influence, which is known to be false; which ought to be met in one manner only, and that is, by the lie direct. The Administration of this country devoted to foreign influence! The Administration of this country subservient to France! Great God! how is it so influenced? By what ligament, on what basis, on what possible foundation, does it rest? Is it on similarity of language? No! we speak different tongues; we speak the English language. On the resemblance of our laws! No! the sources of our jurisprudence spring from another and a different country. On commercial intercourse? No! we have comparatively none with France. Is it from the correspondence in the genius of the two governments? No! here alone is the liberty of man secure from the inexorable despotism which everywhere else tramples it under foot. Where, then, is the ground of such an influence? But, sir, I am insulting you by arguing on such a subject. Yet, preposterous and ridiculous as the insinuation is, it is propagated with so much industry, that there are persons found foolish and credulous enough to believe it. You will, no doubt, think it incredible (but I have nevertheless been told the fact) that an honorable member of this House, now in my eye, recently lost his election by the circulation of a story in his district, that he was the first cousin of the Emperor Napoleon. The proof of the charge was rested on a statement of facts which was undoubtedly true. The gentleman in question it was alleged had married a connection of the lady of the President of the United States, who was the intimate friend of Thomas Jefferson, late President of the United States, who some years ago was in the habit of wearing red French breeches. Now, taking these premises as established, you, Mr. Chairman, are too good a logician not to see that the conclusion necessarily followed! Throughout the period he had been speaking of, the opposition had been distinguished, amidst all its veerings and changes, by another inflexible feature--the application of every vile epithet, which our rich language affords, to Bonaparte. He has been compared to every hideous monster and beast, from that of the _Revelations_ to the most insignificant quadruped. He has been called the scourge of mankind, the destroyer of Europe, the great robber, the infidel, and--Heaven knows by what other names. Really, gentlemen remind me of an obscure lady in a city, not very far off, who also took it into her head, in conversation with an accomplished French gentleman, to talk of the affairs of Europe. She, too, spoke of the destruction of the balance of power, stormed and raged about the insatiable ambition of the Emperor; called him the curse of mankind--the destroyer of Europe. The Frenchman listened to her with perfect patience, and when she had ceased, said to her, with ineffable politeness: "Madam, it would give my master, the Emperor, infinite pain, if he knew how hardly you thought of him." Sir, gentlemen appear to me to forget that they stand on American soil; that they are not in the British House of Commons, but in the Chamber of the House of Representatives of the United States; that we have nothing to do with the affairs of Europe--the partition of territory and sovereignty there--except in so far as these things affect the interests of our own country. Gentlemen transform themselves into the Burkes, Chathams, and Pitts, of another country, and forgetting, from honest zeal, the interests of America, engage, with European sensibility, in the discussion of European interests. If gentlemen ask me, if I do not view with regret and sorrow the concentration of such vast power in the hands of Bonaparte, I reply that I do. I regret to see the Emperor of China holding such immense sway over the fortunes of millions of our species. I regret to see Great Britain possessing so uncontrolled a command over all the waters of our globe. And if I had the ability to distribute among the nations of Europe their several portions of power and of sovereignty, I would say that Holland should be resuscitated, and given the weight she enjoyed in the days of her De Witts. I would confine France within her natural boundaries--the Alps, the Pyrenees, and the Rhine--and make her a secondary naval power only. I would abridge the British maritime power, raise Prussia and Austria to first-rate powers, and preserve the integrity of the Empire of Russia. But these are speculations. I look at the political transactions of Europe, with the single exception of their possible bearing upon us, as I do at the history of other countries or other times. I do not survey them with half the interest that I do the movements in South America. Our political relation is much less important than it is supposed to be. I have no fears of French or English subjugation. If we are united, we are too powerful for the mightiest nation in Europe, or all Europe combined. If we are separated, and torn asunder, we shall become an easy prey to the weakest of them. In the latter dreadful contingency, our country will not be worth preserving. In one respect there is a remarkable difference between Administration and the Opposition--it is in a sacred regard for personal liberty. When out of power, my political friends condemned the surrender of Jonathan Robbins; they opposed the violation of the freedom of the press, in the sedition law; they opposed the more insidious attack upon the freedom of the person, under the imposing garb of an alien law. The party now in opposition, then in power, advocated the sacrifice of the unhappy Robbins, and passed those two laws. True to our principles, we are now struggling for the liberty of our seamen against foreign oppression. True to theirs, they oppose the war for this object. They have indeed lately affected tender solicitude for the liberties of the people, and talk of the danger of standing armies, and the burden of taxes. But it is evident to you, Mr. Chairman, that they speak in a foreign idiom. Their brogue betrays that it is not their vernacular tongue. What! the opposition, who in 1798 and 1799, could raise an useless army to fight an enemy three thousand miles distant from us, alarmed at the existence of one raised for a known specified object--the attack of the adjoining provinces of the enemy? The gentleman from Massachusetts, who assisted by his vote to raise the army of twenty-five thousand, alarmed at the danger of our liberties from this very army! I mean to speak of another subject, which I never think of but with the most awful considerations. The gentleman from Massachusetts, in imitation of his predecessors of 1799, has entertained us with Cabinet plots, Presidential plots, which are conjured up in the gentleman's own perturbed imagination. I wish, sir, that another plot of a much more serious kind--a plot that aims at the dismemberment of our Union--had only the same imaginary existence. But no man, who had paid any attention to the tone of certain prints, and to transactions in a particular quarter of the Union for several years past, can doubt the existence of such a plot. It was far, very far from my intention to charge the opposition with such a design. No, he believed them generally incapable of it. He could not say as much for some who were unworthily associated with them in that quarter of the Union to which he referred. The gentleman cannot have forgotten his own sentiment, uttered even on the floor of this House, "peaceably if we can, forcibly if we must;" in and about the same time Henry's mission to Boston was undertaken. The flagitiousness of that embassy had been attempted to be concealed by directing the public attention to the price which the gentleman says was given for the disclosure. As if any price could change the atrociousness of the attempt on the part of Great Britain, or could extenuate in the slightest degree the offence of those citizens who entertained and deliberated upon the infamous proposition! There was a most remarkable coincidence between some of the things which that man states, and certain events in the quarter alluded to. In the contingency of war with Great Britain, it will be recollected that the neutrality and eventual separation of that section of the Union was to be brought about. How, sir, has it happened, since the declaration of war, that British officers in Canada have asserted to American officers that this very neutrality would take place? That they have so asserted can be established beyond controversy. The project is not brought forward openly, with a direct avowal of the intention. No, the stock of good sense and patriotism in that portion of the country is too great to be undisguisedly encountered. It is assailed from the masked batteries of friendship to peace and commerce on the one side, and by the groundless imputation of opposite propensities on the other. The affections of the people are to be gradually undermined. The project is suggested or withdrawn; the diabolical parties, in this criminal tragedy, make their appearance or exit, as the audience to whom they address themselves are silent, applaud or hiss. I was astonished, sir, to have lately read a letter, or pretended letter, published in a prominent print in that quarter, written not in the fervor of party zeal, but coolly and deliberately, in which the writer affects to reason about a separation, and attempts to demonstrate its advantages to different sections of the Union, deploring the existence now of what he terms prejudices against it, but hoping for the arrival of the period when they shall be eradicated. The war was declared because Great Britain arrogated to herself the pretension of regulating foreign trade, under the delusive name of retaliatory Orders in Council--a pretension by which she undertook to proclaim to American enterprise, "Thus far shalt thou go, and no farther." Orders which she refused to revoke after the alleged cause of their enactment had ceased; because she persisted in the act of impressing American seamen; because she had instigated the Indians to commit hostilities against us; and because she refused indemnity for her past injuries upon our commerce. I throw out of the question other wrongs. The war in fact was announced, on our part, to meet the war which she was waging on her part. So undeniable were the causes of the war; so powerfully did they address themselves to the feelings of the whole American people, that when the bill was pending before this House, gentlemen in the opposition, although provoked to debate, would not, or could not, utter one syllable against it. It is true they wrapped themselves up in sullen silence, pretending that they did not choose to debate such a question in secret session. Whilst speaking of the proceedings on that occasion, I beg to be permitted to advert to another fact that transpired--an important fact material for the nation to know, and which I have often regretted had not been spread upon our journals. My honorable colleague (Mr. MCKEE) moved, in Committee of the Whole, to comprehend France in the war; and when the question was taken upon the proposition, there appeared but ten votes in support of it, of whom seven belonged to this side of the House, and three only to the other. It is said that we were inveigled into the war by the perfidy of France; and that had she furnished the document in time, which was first published in England, in May last, it would have been prevented. I will concede to gentlemen every thing they ask about the injustice of France towards this country. I wish to God that our ability was equal to our disposition to make her feel the sense of that injustice. The manner of the publication of the paper in question, was undoubtedly extremely exceptionable. But I maintain that, had it made its appearance earlier, it would not have had the effect supposed; and the proof lies in the unequivocal declarations of the British Government. I will trouble you, sir, with going no further back than to the letters of the British Minister, addressed to the Secretary of State, just before the expiration of his diplomatic functions. It will be recollected by the committee that he exhibited to this Government a despatch from Lord Castlereagh, in which the principle was distinctly avowed, that to produce the effect of the repeal of the Orders in Council, the French decrees must be absolutely and entirely revoked as to all the world, and not as to America alone. A copy of that despatch was demanded of him, and he very awkwardly evaded it. But, on the 10th of June, after the bill declaring war had actually passed this House, and was pending before the Senate, (and which, I have no doubt, was known to him,) in a letter to Mr. Monroe, he says: "I have no hesitation, sir, in stating that Great Britain, as the case has hitherto stood, never did, nor ever could engage, without the greatest injustice to herself and her allies, as well as to other neutral nations, to repeal her orders as affecting America alone, leaving them in force against other States, upon condition that France would except singly and specially America from the operation of her decrees." On the 14th of the same month, the bill still pending before the Senate, he repeats: "I will now say, that I feel entirely authorized to assure you, that if you can at any time produce a full and unconditional repeal of the French decrees, as you have a right to demand it in your character of a neutral nation, and that it be disengaged from any question concerning our maritime rights, we shall be ready to meet you with a revocation of the Orders in Council. Previously to your producing such an instrument, which I am sorry to see you regard as unnecessary, you cannot expect of us to give up our Orders in Council." Thus, sir, you see that the British Government would not be content with a repeal of the French decrees as to us only. But the French paper in question was such a repeal. It could not, therefore, satisfy the British Government. It could not, therefore, have induced that Government, had it been earlier promulgated, to repeal the Orders in Council. It could not, therefore, have averted the war. The withholding of it did not occasion the war, and the promulgation of it would not have prevented the war. But gentlemen have contended that, in point of fact, it did produce a repeal of the Orders in Council. This I deny. After it made its appearance in England, it was declared by one of the British Ministry, in Parliament, not to be satisfactory. And all the world knows, that the repeal of the Orders in Council resulted from the inquiry, reluctantly acceded to by the Ministry, into the effect upon their manufacturing establishments, of our non-importation law, or to the warlike attitude assumed by this Government, or to both. But it is said that the Orders in Council are done away, no matter from what cause; and that having been the sole motive for declaring the war, the relations of peace ought to be restored. This brings me into an examination of the grounds for continuing the war. I am far from acknowledging that had the Orders in Council been repealed, as they have been, before the war was declared, the declaration would have been prevented. In a body so numerous as this, from which the declaration emanated, it is impossible to say with any degree of certainty what would have been the effect of such a repeal. Each member must answer for himself. I have no hesitation then, in saying, that I have always considered the impressment of American seamen as much the most serious aggression. But, sir, how have those orders at last been repealed? Great Britain, it is true, has intimated a willingness to suspend their practical operation, but she still arrogates to herself the right to revive them upon certain contingencies, of which she constitutes herself the sole judge. She waives the temporary use of the rod, but she suspends it _in terrorem_ over our heads. Supposing it was conceded to gentlemen that such a repeal of the Orders in Council, as took place on the 23d of June last, exceptionable as it is, being known before the war, would have prevented the war, does it follow that it ought to induce us to lay down our arms without the redress of any other injury? Does it follow, in all cases, that that which would have prevented the war in the first instance should terminate the war? By no means. It requires a great struggle for a nation prone to peace as this is, to burst through its habits and encounter the difficulties of war. Such a nation ought but seldom to go to war. When it does, it should be for clear and essential rights alone, and it should firmly resolve to extort, at all hazards, their recognition. The war of the Revolution is an example of a war began for one object and prosecuted for another. It was waged in its commencement against the right asserted by the parent country to tax the colonies. Then no one thought of absolute independence. The idea of independence was repelled. But the British Government would have relinquished the principle of taxation. The founders of our liberties saw, however, that there was no security short of independence, and they achieved our independence. When nations are engaged in war, those rights in controversy, which are acknowledged by the Treaty of Peace, are abandoned. And who is prepared to say that American seamen shall be surrendered the victims to the British principle of impressment? And, sir, what is this principle? She contends that she has a right to the services of her own subjects: that, in the exercise of this right, she may lawfully impress them, even although she finds them in our vessels, upon the high seas, without her jurisdiction. Now, I deny that she has any right, without her jurisdiction, to come on board our vessels on the high seas, for any other purpose but in pursuit of enemies, or their goods, or goods contraband of war. But she further contends that her subjects cannot renounce their allegiance to her and contract a new obligation to other Sovereigns. I do not mean to go into the general question of the right of expatriation. If, as is contended, all nations deny it, all nations at the same time admit and practice the right of naturalization. Great Britain, in the very case of foreign seamen, imposes perhaps fewer restraints upon naturalization than any other nation. Then, if subjects cannot break their original allegiance, they may, according to universal usage, contract a new allegiance. What is the effect of this double obligation? Undoubtedly, that the Sovereign having possession of the subject would have a right to the services of the subject. If he return within the jurisdiction of his primitive Sovereign, he may resume his right to his services, of which the subject by his own act could not divest himself. But his primitive Sovereign can have no right to go in quest of him, out of his own jurisdiction into the jurisdiction of another Sovereign, or upon the high seas, where there exists either no jurisdiction, or it belongs to the nation owning the ship navigating them. But, sir, this discussion is altogether useless. It is not to the British principle, objectionable as it is, that we are alone to look; it is to her practice--no matter what guise she puts on. It is in vain to assert the inviolability of the obligation of allegiance. It is in vain to set up the plea of necessity, and to allege that she cannot exist without the impressment of her seamen. The truth is, she comes, by her press gangs, on board of our vessels, seizes our native seamen, as well as naturalized, and drags them into her service. It is the case, then, of the assertion of an erroneous principle, and a practice not conformable to the principle--a principle which, if it were theoretically right, must be forever practically wrong. We are told by gentlemen in the opposition that Government has not done all that was incumbent on it to do to avoid just cause of complaint on the part of Great Britain; that, in particular, the certificates of protection, authorized by the act of 1796, are fraudulently used. Sir, Government has done too much in granting those paper protections. I can never think of them without being shocked. They resemble the passes which the master grants to his negro slave: "Let the bearer, Mungo, pass and repass without molestation." What do they imply? That Great Britain has a right to take all who are not provided with them. From their very nature they must be liable to abuse on both sides. If Great Britain desires a mark by which she can know her own subjects, let her give them an ear mark. The colors that float from the mast head should be the credentials of our seamen. There is no safety to us, and the gentlemen have shown it, but in the rule that all who sail under the flag (not being enemies) are protected by the flag. It is impossible that this country should ever abandon the gallant tars who have won for us such splendid trophies. Let me suppose that the Genius of Columbia should visit one of them in his oppressor's prison and attempt to reconcile him to his wretched condition. She would say to him, in the. language of the gentlemen on the other side, "Great Britain intends you no harm; she did not mean to impress you, but one of her own subjects; having taken you by mistake, I will remonstrate, and try to prevail upon her by peaceable means to release you, but I cannot, my son, fight for you." If he did not consider this mockery, he would address her judgment, and say, "You owe me, my country, protection; I owe you in return obedience. I am no British subject, I am a native of old Massachusetts, where live my aged father, my wife and my children. I have faithfully discharged my duty. Will you refuse to do yours?" Appealing to her passions, he would continue, "I lost this eye in fighting under Truxton with the Insurgent; I got this scar before Tripoli; I broke this leg on board the Constitution when the Guerriere struck." If she remained still unmoved, he would break out, in the accents of mingled distress and despair, "Hard, hard, is my fate! once I freedom enjoyed, Was as happy as happy could be! Oh! how hard is my fate, how galling these chains!" I will not imagine the dreadful catastrophe to which he would be driven by an abandonment of him to his oppressor. It will not be, it cannot be, that his country will refuse him protection! It is said that Great Britain has been always willing to make a satisfactory arrangement of the subject of impressment; and that Mr. King had nearly concluded one prior to his departure from that country. Let us hear what that Minister says upon his return to America. In his letter dated at New York, in July, 1803, after giving an account of his attempt to form an arrangement for the protection of our seamen, and his interviews to this end with Lords Hawkesbury and St. Vincent; and stating that, when he had supposed the terms of a convention were agreed upon, a new pretension was set up (the _mare clausum_,) he concludes: "I regret not to have been able to put this business on a satisfactory footing, knowing as I do its very great importance to both parties; but I flatter myself that I have not misjudged the interests of our own country, in refusing to sanction a principle that might be productive of more extensive evils than those it was our aim to prevent." The sequel of his negotiation, on this affair, is more fully given in the recent conversation between Mr. Russell and Lord Castlereagh, communicated to Congress during its present session. Lord Castlereagh says to Mr. Russell: "Indeed there has evidently been much misapprehension on this subject, and an erroneous belief entertained that an arrangement in regard to it has been nearer an accomplishment than the facts will warrant. Even our friends in Congress--I mean those who were opposed to going to war with us--have been so confident in this mistake, that they have ascribed the failure of such an arrangement solely to the misconduct of the American Government. This error probably originated with Mr. King; for, being much esteemed here, and always well received by the persons in power, he seems to have misconstrued their readiness to listen to his representations, and their warm professions of a disposition to remove the complaints of America in relation to impressment, into a supposed conviction on their part of the propriety of adopting the plan which he had proposed. But Lord St. Vincent, whom he might have thought he had brought over to his opinions, appears never for a moment to have ceased to regard all arrangement on the subject to be attended with formidable, if not insurmountable obstacles. This is obvious from a letter which his Lordship addressed to Sir William Scott at the time." Here Lord Castlereagh read a letter, contained in the records before him, in which Lord St. Vincent states to Sir William Scott the zeal with which Mr. King had assailed him on the subject of impressment, confesses his own perplexity, and total incompetency to discover any practical project for the safe discontinuance of that practice, and asks for counsel and advice. "Thus you see," proceeded Lord Castlereagh, "that the confidence of Mr. King on this subject was entirely unfounded." Thus, continued Mr. CLAY, it is apparent, that, at no time, has the enemy been willing to place this subject on a satisfactory footing. I will speak hereafter of the overtures made by the Administration since the war. The disasters of the war admonish us, we are told, of the necessity of terminating the contest. If our achievements upon the land have been less splendid than those of our intrepid seamen, it is not because the American soldier is less brave. On the one element, organization, discipline, and a thorough knowledge of their duties, exist on the part of the officers and their men. On the other, almost every thing is yet to be acquired. We have, however, the consolation that our country abounds with the richest materials, and that, in no instance, when engaged in action, have our arms been tarnished. At Brownstown, and at Queenstown, the valor of veterans was displayed, and acts of the noblest heroism were performed. It is true, that the disgrace of Detroit remains to be wiped off. That is a subject on which I cannot trust my feelings, it is not fitting I should speak. But this much I will say, it was an event which no human foresight could have anticipated, and for which the Administration cannot be justly censured. It was the parent of all the misfortunes we have experienced on land. But for it the Indian war would have been in a great measure prevented or terminated, the ascendency on Lake Erie acquired, and the war pushed perhaps to Montreal. With the exception of that event, the war, even upon the land, had been attended by a series of the most brilliant exploits, which, whatever interest they may inspire on this side of the mountains, have given the greatest pleasure on the other. The expedition under the command of Governor Edwards and Colonel Russell, to Lake Peoria, on the Illinois, was completely successful. So was that of Captain Craig, who, it is said, ascended that river still higher. General Hopkins destroyed the Prophet's town. We have just received intelligence of the gallant enterprise of Colonel Campbell. In short, sir, the Indian towns have been swept from the mouth to the source of the Wabash, and a hostile country has been penetrated far beyond the most daring incursions of any campaign during the former Indian war. Never was more cool, deliberate bravery displayed than that by Newnan's party from Georgia. And the capture of the Detroit, and the destruction of the Caledonia, (whether placed to our maritime or land account,) for judgment, skill, and courage, on the part of Lieutenant Elliott, has never been surpassed. What cause, Mr. Chairman, which existed for declaring the war has been removed? We sought indemnity for the past and security for the future. The Orders in Council are suspended, not revoked; no compensation for spoliations; Indian hostilities, which were before secretly instigated, now openly encouraged; and the practice of impressment unremittingly persevered in and insisted upon. Yet Administration has given the strongest demonstrations of its love of peace. On the 29th June, less than ten days after the declaration of war, the Secretary of State writes to Mr. Russell, authorizing him to agree to an armistice, upon two conditions only; and what are they? That the Orders in Council should be repealed, and the practice of impressing American seamen cease, those already impressed being released. The proposition was for nothing more than a real truce; that the war should in fact cease on both sides. Again, on the 27th July, one month later, anticipating a possible objection to these terms, reasonable as they are, Mr. Monroe empowers Mr. Russell to stipulate in general terms for an armistice, having only an informal understanding on these points. In return, the enemy is offered a prohibition of the employment of his seamen in our service, thus removing entirely all pretext for the practice of impressment. The very proposition which the gentleman from Connecticut (Mr. PITKIN) contends ought to be made, has been made. How are these pacific advances met by the other party? Rejected as absolutely inadmissible; cavils are indulged about the inadequacy of Mr. Russell's powers, and the want of an act of Congress is intimated. And yet the constant usage of nations I believe is, where the legislation of one party is necessary to carry into effect a given stipulation, to leave it to the contracting party to provide the requisite laws. If he fails to do so, it is a breach of good faith, and a subject of subsequent remonstrance by the injured party. When Mr. Russell renews the overture, in what was intended as a more agreeable form to the British Government, Lord Castlereagh is not content with a simple rejection, but clothes it in the language of insult. Afterwards, in conversation with Mr. Russell, the moderation of our Government is misinterpreted and made the occasion of a sneer, that we are tired of the war. The proposition of Admiral Warren is submitted in a spirit not more pacific. He is instructed, he tells us, to propose that the Government of the United States shall instantly recall their letters of marque and reprisal against British ships, together with all orders and instructions for any acts of hostility whatever against the territories of His Majesty or the persons or property of his subjects. That small affair being settled, he is further authorized to arrange as to the revocation of the laws which interdict the commerce and ships of war of His Majesty from the harbors and waters of the United States. This messenger of peace comes with one qualified concession in his pocket, not made to the justice of our demands, and is fully empowered to receive our homage, the contrite retraction of all our measures adopted against his master! And in default, he does not fail to assure us, the Orders in Council are to be forthwith revived. Administration, still anxious to terminate the war, suppresses the indignation which such a proposal ought to have created, and in its answer concludes by informing Admiral Warren, "that if there be no objection to an accommodation of the difference relating to impressment, in the mode proposed, other than the suspension of the British claim to impressment during the armistice, there can be none to proceeding, without the armistice, to an immediate discussion and arrangement of an article on that subject." Thus it has left the door of negotiation unclosed, and it remains to be seen if the enemy will accept the invitation tendered to him. The honorable gentleman from North Carolina (Mr. PEARSON) supposes, that if Congress would pass a law, prohibiting the employment of British seamen in our service, upon condition of a like prohibition on their part, and repeal the act of non-importation, peace would immediately follow. Sir, I have no doubt if such a law were passed, with all the requisite solemnities, and the repeal to take place, Lord Castlereagh would laugh at our simplicity. No, sir, Administration has erred in the steps which it has taken to restore peace, but its error has been not in doing too little, but in betraying too great a solicitude for that event. An honorable peace is attainable only by an efficient war. My plan would be to call out the ample resources of the country, give them a judicious direction, prosecute the war with the utmost vigor, strike wherever we can reach the enemy, at sea or on land, and negotiate the terms of a peace at Quebec or Halifax. We are told that England is a proud and lofty nation that, disdaining to wait for danger, meets it half way. Haughty as she is, we once triumphed over her, and if we do not listen to the counsels of timidity and despair we shall again prevail. In such a cause, with the aid of Providence, we must come out crowned with success; but if we fail, let us fail like men--lash ourselves to our gallant tars, and expire together in one common struggle, fighting for "seamen's rights and free trade." Mr. MCKEE moved an amendment to the bill, going to place the appointment of the other field officers of each regiment, as well as the Colonels, in the President and Senate. The motion was agreed to. MONDAY, January 11. _Additional Military Force._ The House again resolved itself into a Committee of the Whole, on the bill for raising an additional military force of twenty thousand men for one year. Mr. SHEFFEY said he felt grateful for the opportunity which had been afforded him, to deliver his sentiments on the subject before the committee. It was now about a year ago, when he had stated his reasons at length on the question of the war then meditated against Great Britain. Since that time, he had been generally a silent, though not an inattentive spectator. Conscious that there had fallen to his share a full portion of the frailty common to man, he felt disposed to distrust his own opinion. He had even hoped he might be mistaken, he had hoped that experience would prove the fallacy of his apprehensions; that the predictions of gentlemen, who differed from him in sentiment, would be realized; that the rights of the country would be secured by arms, to which the majority had resorted; and that the evils anticipated would vanish before us. On a review, however, of the reasons which had then influenced him, aided by the experience of the last year, he found his opinions, not only unshaken, but strongly confirmed. The bill before us, said Mr. S., contemplates an addition of twenty thousand men to the army heretofore authorized to be raised. By the measures preparatory to the war, upwards of thirty-six thousand men were directed to be enlisted; with the addition now contemplated, our regular army will amount to more than fifty-six thousand men. The question which at once presents itself to every mind disposed to inquire, is, what is the object of this vast military force? We are here not left to conjecture; this inquiry has been anticipated, and we have been directly told by the chairman of the Military Committee, (Mr. WILLIAMS,) that it is intended for offensive purposes; that the conquest of Canada, Nova Scotia, and New Brunswick, is to be achieved. If I have any right to deliberate on this subject, and to express the opinion which my view of the real interests of the country dictates, I at once say, that I cannot give my assent to raise such a force for such a purpose. Was an augmentation of the army required to defend us against any enemy, either on the maritime or inland frontier, no member of this House would more readily accord the means of defence and protection than myself. In such event, I shall not inquire how we got into the situation, or by whose temerity the enemy has been brought on our borders. I shall consider _defence_ as a matter of imperious necessity, forbidding all calculation as to means and consequences. But, as it is admitted by all, that the force already authorized is more than sufficient for every defensive purpose; as it is expressly avowed that it is required for offensive operations in the territories of the enemy, the question assumes a different shape; it is stripped of the overruling influence which attends necessity; it becomes a mere question of expediency, controlled by the various considerations which reason and policy may dictate. So far as my conduct is concerned, before I can consent to the prosecution of the war, in the manner contemplated, I must be convinced that the objects in controversy are not only just, but of sufficient importance in their practical effect on the community to justify such an experiment, and not attainable in any other way; that there is a reasonable probability that such a war will secure to us those objects; and that we are not endangering the greater good, to obtain an exemption from the lesser evil; hazarding certain great rights, to secure others of far inferior importance. I regret that I cannot, consistently with my sense of duty, yield the unlimited confidence in their measures, which the majority demand. My reason must be convinced, before my confidence can be bestowed. There are, indeed, cases where superior virtue and wisdom, tested by long and successful experience, have a strong claim to our confidence. But this, in my opinion, is not the case here. A retrospect of the transactions of the last eight years, will show how much gentlemen have been mistaken and disappointed in their views of our foreign policy; particularly that part which is connected with the difficulties in which we now find ourselves, and which may be said to be the groundwork of them. In making this declaration, and in leading your attention to the facts, it is not my object to give offence to any one. I believe gentlemen are actuated by the purest motives, and sincerely disposed to render essential service to the country. I speak of facts only, intending to show a mistaken, not a corrupt or vicious course. Our difficulties with Great Britain commenced soon after the treaty of 1794 (generally called "Jay's Treaty") expired by its own limitation, in consequence of the peace of Amiens. About that time the British Government offered to our Minister, then resident in London, a renewal of the treaty. That instrument had been negotiated under the auspices, and received the sanction of WASHINGTON, the father and benefactor of his country. It is true, that its stipulations did not embrace every subject which we could have wished; and those that were embraced, were not so advantageously settled as might have been done, had we had it in our power to have dictated the terms. But it is equally true, that experience refuted all the speculations, and dissipated all the apprehensions, with which the country was filled at the time of its ratification. During its operation we enjoyed a degree of prosperity unexampled in this or any other country. Our leading interests flourished in a manner unknown before, and unexperienced since; our agriculture was encouraged by high prices and ready markets for its products; the freedom of navigation, and the enterprise of our people, carried our commerce to every part of the globe. I ask this House and this nation, whether their hopes or wishes extend beyond what we then enjoyed? If they do, they hope for that which is opposed by all human probability, and they wish for that which has scarcely ever fallen to the lot of man. We were, indeed, not exempt from every evil, or gratified by every possible good. What nation or individual ever reached that state? But the great essentials of national prosperity were in our possession. Our Government, however, was not satisfied. The overture of the British Government was rejected, under the impression, no doubt, that better terms could be obtained; that the situation of Great Britain would compel her to yield to our demands, however extensive. Soon after the rejection of this overture, Great Britain assumed the right to interdict the trade in the products of her enemies' colonies, when taken directly from those colonies to the mother country, conformably, as she asserted, to the principles adopted in the war of 1756. In consequence of which, our Government, with a view to coerce her into a relinquishment of her pretensions, passed the partial non-importation act of 1806. It had not the intended and promised effect. They again resorted to negotiation, and repealed the restriction. About this time, a change happened in the British Cabinet, highly auspicious to our interests. "Our friends," yes, our old friends, who had espoused our cause in time of peril and danger, who had defended our rights during all the vicissitudes of the Revolution, and who had manifested their friendship for us on every occasion since, got into power. With these men, a negotiation was opened by our Government through the instrumentality of our Ministers, Messrs. Monroe and Pinkney, which resulted in a treaty, as our own Ministers declared, "both honorable and advantageous to the United States," and the best that could be obtained. It was not only "advantageous" as it respected our commerce, but the informal understanding which accompanied it, would have secured us against the abuses of impressments; so our own Ministers believed. But it was rejected without being even submitted to the Senate. The reasons have never been disclosed to the nation. I presume, however, that it was confidently expected that such was the situation of Great Britain, that any terms that we should dictate would be granted. The terms which our Government demanded not being accorded on the part of Great Britain, a new policy was resorted to by our Government, which was held up to the nation as a sovereign remedy for all our difficulties, which were daily increasing. An embargo, not limited in its duration, was laid on our shipping. The prominent virtues of this remedy were supposed to be--that it would coerce the belligerents, but particularly Great Britain, into an abandonment of their injurious measures; and above all, that it would save us from being involved in war. The experience of one year, however, manifested how little its supporters understood of the means and resources of other nations, and of the character of our own. The privations to which a great portion of our people were subjected in consequence of this measure coerced our Government into a repeal, long before any sensible impression could be made on Great Britain. The embargo was abandoned, because the people would bear it no longer, and the non-intercourse system was adopted in its stead. This also had its day--but this, like the embargo, experience condemned as injurious and ruinous policy; and the public voice called for its repeal. It was succeeded by the act of the first of May, 1810, the source of our present difficulties. When this act passed this House, we were told that its provisions held out the strongest inducement to each of the great belligerents, to precede its rival in the abrogation of the injurious edicts affecting the commerce of this country, and that whoever might lead the other would unquestionably follow. It required very little sagacity to penetrate this subject. It was easily foreseen that this measure would be employed to detach us from our neutral situation, which it was so much our interest, and had been so much our desire, to maintain. This apprehension experience has realized. We now feel the consequences in their fullest extent. After we had become the dupes of French perfidy, by putting in force the non-importation system against Great Britain, under the belief, that on the first day of November, 1810, the decrees of Berlin and Milan were repealed, the falsehood of which has since been placed beyond all rational doubt, it happened as had been anticipated, that finding the inefficiency of the restrictive system against Great Britain, the nation was called on, about the commencement of last session, to assume a threatening attitude towards that power. We were then told by the supporters of our foreign policy, that war would not be necessary. That justice was withheld from us by the Government of that nation under the impression that force would not be used to maintain our rights, which impression it was only necessary to remove by manifesting a determined spirit in making warlike preparations. This prevailed with many, and the army was voted. But it did not intimidate our enemy. We were then told, that it was necessary to declare war, as affording conclusive evidence of our sincerity: but that it would not be necessary to continue it beyond a few weeks, when our objects would be attained by a just and honorable peace. We were also told, at the same time, that in six weeks after the declaration of war, we should be in possession of a great portion of the enemy's colonies. All these promises have been disappointed. We have effected nothing by commercial restrictions, nothing by arms, and nothing by negotiation; and, if there is not a change in our policy, the war promises to be perpetual. Having detained you thus long with these preliminary topics, permit me to draw your attention to those that grow directly out of the bill before the committee. I have said, that the causes ought not only to be just, but important in their effect on the community, to justify a resort to arms. I will say more. A nation situated as this is, who has so much to lose, and so little to gain, ought not to relinquish its peaceful state but in the last extremity. Are the causes which existed at the time when this war was declared, of that character which, according to this idea, justified its commencement; and are those now remaining sufficient to sanction its continuance? I exclude all consideration of the abstract justice of our complaints against Great Britain. Upon that subject I never had but one opinion. I always did believe that her conduct towards this country was not only unjust as it affected us, but impolitic as it affected herself. Before the war commenced last Summer, the Orders in Council formed the principal ground of complaint against Great Britain. I venture to assert, without the dread of contradiction, that if the repeal which has since taken place had happened and been known here before we resorted to the sword, we should have remained at peace. I make this declaration on (what I deem) the most unquestionable authority. The proof is on record. In 1808, Mr. Jefferson, then President of the United States, through our Minister in London, proposed to the British Government to relinquish the embargo as to her, on condition the Orders in Council were revoked. In 1809, Mr. Madison entered into the arrangement with Mr. Erskine, which made the same condition the sole foundation for restoring amicable intercourse between the two nations. In 1810 and 1811, the discussions between our Government and that of Great Britain were confined almost exclusively to that subject. And in 1812, preceding the declaration of war, the Secretary of State informed the British Envoy, that if the Orders in Council were revoked, the non-importation act would cease immediately. During the whole of this period, our complaints were directed to the Orders in Council, and our measures, (I speak of our restrictive system,) so far as they affected Great Britain, were adopted with a single eye to their repeal. Until the war was declared, I did not suppose that it would be waged for any other object. The Orders in Council, though a violation of our maritime rights in point of principle, were practically of very little injury to our commerce at the commencement of the war in which we are now engaged. The reasons are obvious. Our commerce to France, Holland, Italy, &c., never was of great importance. And the effect of the French "municipal regulations" had caused it to dwindle into insignificance. The exclusions, restrictions, impositions, and confiscations, so permanent in the commercial code (and practice) of Napoleon, had inspired our merchants with a due portion of caution, how they ventured their property into the power of a Government actuated by no liberal principle, and bound by no faith. From this state of things, it was not difficult to conjecture that the period was not distant when Great Britain must become convinced of the inefficiency of the Orders in Council, so far as respected their retaliatory object on her enemy. How could France be distressed by the British interdiction of her foreign commerce, when France herself was hostile to that commerce--when she adopted every measure to narrow, to shackle, and ultimately to exclude it? We had even strong evidence that British statesmen began to waver on the subject. The vote in the House of Commons, during the last Winter, showed a minority unusually strong, and indicated most clearly that before long the Orders in Council were doomed to perish. But, with this information before our eyes, we hurried on to war without waiting for the event, or even without waiting for preparation. The Orders in Council have since been repealed. The manner has indeed been objected to by the honorable Speaker, (Mr. CLAY,) because the right to secure them in certain events is reserved. But surely this cannot be and has not been considered by our Government a serious objection; for without such reservation the power to revive them existed to every possible extent. The only question is, do they cease to violate our neutral commerce? This is not doubted. The remaining obstacle, therefore, to a good understanding between the two nations, and the sole ostensible cause for persevering in the war, is the subject of impressments. This is, indeed, a difficult and unquestionably an interesting subject. Not that I place entire confidence in the sympathetic descriptions of the magnitude of the evil, which we have so often heard and daily heard in this House. I am inclined to believe fancy has colored the picture too highly. There is one reason, above all others, which leads me to that conclusion. It is this: In that section of the United States of which two-thirds of our seamen are natives, there is a strong, overwhelming current of opinion against this war. Can it be possible that the country where dwells the kindred of those who are said to be incarcerated in great numbers in the "floating dungeons" of Great Britain is not only indifferent about the fate of its children, but opposes, as ruinous, the war waged for their protection? It is certainly a curious spectacle to see the defenders of seamen's rights come from those portions of the Union that have little commerce, and few, if any, seamen. I do not mean to insinuate that those gentlemen do wrong in espousing the cause of the oppressed, to whatever quarter they may belong; but I state the fact to show that their sympathies may possibly have magnified the evil--and to infer from it, that the opposition of those most immediately interested is to be ascribed, not to their insensibility, but to their apprehensions that this war, instead of securing seamen's rights, will banish their seamen into foreign service. The controversy between this country and Great Britain seems to have been brought to a single point. She claims the service of her seafaring subjects in time of danger. Our Government admits this right. To give effect to the right thus claimed and admitted, she insists that her officers may go on board our merchant ships on the high seas, or in her ports--search for and take her subjects. This our Government deny, and claim the immunity of the flag so far as persons are concerned; because, under the pretext of taking British subjects, American citizens are frequently taken. It does, indeed, not distinctly appear in the late communication from our Executive to the British Government, that they mean by the terms American citizens, whether it includes naturalized persons as well as natives. With respect to those of the first description, I confess I feel no great interest for their immunity abroad or on the high seas; I am one of those who think that we act sufficiently liberal when we offer them any asylum from the oppression or poverty of their own country, receive them into our bosom, and extend to them all the advantages belonging to us; and so long as they remain within our territorial limits, they shall, with my consent, have the full benefit of the protection which our laws afford to all. But I cannot consent that the native blood of this country shall be profusely wasted to protect aliens born, wherever they may ramble. We all profess a deep solicitude for the interest of seamen. To describe their distresses and to eulogize their valor and patriotism, is one of the topics of the day. And yet we are contending for principles which, if successful, will bring a host of foreigners in competition with them to elbow them out of employment. But it is said that Great Britain does the same--that by the act passed during the reign of George II., foreign seamen are naturalized who have been in the King's service for two years, and that she has no right to object if we imitate her conduct. It is true she has adopted such a regulation. But I have never heard of any instance where she has contended that such a person is absolved from his natural allegiance, if he comes within the power of his original sovereign. I have understood that act to mean that such persons should become entitled to certain rights--not absolved from any duties towards others, should they leave the country. That they should have the right to hold lands--be admitted under the regulations of the navigation act as British seamen on board merchant ships, and participate in the pension and hospital provisions. Should I be mistaken, however, I am not inclined to relinquish my opinion, merely because the practice of Great Britain is opposed to it. Sir, I do not find fault with the Administration for insisting on the immunity of our flag, as it respects the seamen. I approve of the principle. It is of that character which at a proper time and with proper means is (in effect and to all general purposes) attainable, if we do not by ill-timed and imprudent efforts frustrate it. It is supposed that the present is the auspicious moment to insist on our rights. That pressed as Great Britain is by the most powerful enemy the world ever saw, who threatens her very existence; the impression which we can make upon her by our arms, will be greater than at any other time. This very circumstance renders the attainment of our object more difficult, and makes our case hopeless. Her danger forbids a compliance with our demands. In her present struggle, her naval power constitutes her security. Without that she would long since have become a French province. This every man in England knows and feels. It is well known that four-fifths of her seamen on board her navy render not voluntary but compulsory service. Should this principle be established, which in all cases would afford a secure asylum in our merchant ships, it is dreaded by British statesmen and the British people, that their seamen, allured by higher wages and easier employment, would abandon their service, and thus render their country accessible to their enemy. Hence you see every Ministry, of whatever political party or distinction, tremblingly alive to this subject. They dare not touch it in the present state of that country. No man could maintain his power a moment after having hazarded the public safety by making an experiment, the effect of which could not be foreseen, and may be productive of such disastrous consequences. This spirit is manifest in all the communications from the British Cabinet to our Government. We have seen the sentiments of Lord Grenville, Lord Auckland, Lord Holland, and Mr. Fox, men whose prepossessions were in our favor, and who on almost every other subject supported our pretensions. On this subject they resisted our demands, because they dared not grant them. While I conceive the claims of our Government as not going too far, I doubt their prudence as to the time and manner of giving them effect. I fear that instead of realizing our wishes the measures pursued are calculated to deprive us of every hope hereafter. In the present unexampled state of the world, according to my limited conception of our true interest, we ought to have seriously avoided all hostile collision with foreign powers. We ought to have cherished the resources within our grasp. Nothing is more obvious than the remark made by the honorable gentleman from New York, (Mr. BLEECKER,) that, with all the injuries which we received from the belligerents, our commerce was more extensive and more profitable in the aggregate than if Europe had been at peace. We might have obtained (and we ought not to have rejected) such temporary arrangements with England, (with whom our commerce was chiefly carried on,) which, though they did not embrace all our interests, would have secured those of first importance and kept us at peace. The benefits of such a policy are to my mind self-evident. Should Europe be restored to tranquillity and assume something like its former appearance, (and I do not believe the present state of things durable,) we should have been able to have effected every valuable object, because such a change will probably bring with it a respect for the rights of nations, which have now no existence but in name. And should an imposing attitude have been wanting to give effect to our claims, we should have exhibited an unbroken spirit and unexhausted resources. An honorable member from Tennessee, (Mr. GRUNDY,) the other day, read some extracts from the instructions transmitted to our Minister in London, in 1792. His object was to show the deep interest which the great man who then presided over this nation felt on the subject of impressments. I sincerely wish that while gentlemen resort to his opinions to support theirs, they would consent to imitate his conduct. Nothing can be more strikingly different than his policy and that which is now pursued. In 1793 the subject of impressments did not form the only complaint against Great Britain. The Treaty of Peace remained unexecuted on her part. To that was added the great injury which our commerce sustained by the extensive captures made by her cruisers during that year. The interest which was felt for the success of the French Revolution, against which Great Britain had arrayed herself, tended to excite the nation, even beyond the measure of its wrongs, and ripen it for war. But the wisdom of WASHINGTON saved us from being drawn into the vortex, which has since devoured all who approached it. His genius considered the true interests of his country to consist in the preservation of its peace; and he had firmness enough to preserve it, though opposed by the strong feelings of the people. Notwithstanding the accumulated wrongs which we had received, he sent a messenger of peace, and ultimately gave his assent to a treaty in which there was not one stipulation even to restrain the abuses of impressments, which the year before he had declared could not be longer tolerated. Why was this done by him, who, to say the least, had as much affection for his country's rights, as the politicians of the present day--whom fear never influenced--and who could safely calculate on the support of the people, should he resort to arms? The answer is obvious. Peace upon almost any terms was better than a hopeless, endless contest. What a contrast does his example present to the conduct of those who now direct the destinies of this nation, and who, while they reject his policy, resort to his opinions to support their own? Upon the subject of foreign war, and the objects connected with it, the opinions of gentlemen of the majority have certainly undergone a strange revolution since they came into power. Little more than twelve years ago, they deprecated foreign war as inconsistent with the spirit of our institutions, and the genius of our Government. Nothing short of self-defence, when attacked in our own country, was considered as a justification for abandoning our peaceful pursuits, and mingling in hostility with European powers. Every other object was deemed subordinate to the preservation of peace, because with it was connected every benefit which it had pleased Providence to bestow upon us, and which our detached situation rendered secure. We now hear those very gentlemen talk of Rome and Greece in their proudest days, when they inspired terror into the inhabitants of distant climes and carried their arms to every quarter of the globe; and their example is held up for our imitation. The almost boundless extent of our territory is become too limited, and we hear of conquests in the North and South, as essential to our security and happiness. In taking a retrospect, and contrasting former opinions with present conduct, a person would almost be inclined to distrust his observation, was there not left on record monuments with sentiments of former times entertained by gentlemen in the days of humility, when they were struggling against power. Permit me to call your attention to a resolution of the Virginia Assembly, adopted in 1798, said to be draughted by Mr. Madison, now President of the United States, upon this subject. It was then considered the standard of Republican opinion, by all who professed to be of that party. It in substance declares, that though the General Assembly view with indignation the violations of our commerce, the impressment of our seamen, and other wrongs committed by foreign nations, yet detached as the United States are from European concerns, they should deprecate a war waged for any other object except self-defence, in cases of actual invasion. This resolution had an eye to our relations with France, from whom we had then received every injury and indignity she could inflict, and with whom we were in a state of partial hostility; but it explicitly declares, that we ought to engage in offensive war, for no object whatever. Let the sentiment be compared with the conduct of the same men now they are in power. Sir, I am one of those who doubt our capacity to obtain the conquest of the British provinces. I believe that the opinion, that we are a very powerful nation abroad, is a fanciful delusion. To be powerful abroad, requires a Government of sufficient energy, not only to bring into action all the physical and pecuniary resources of the country, but to command them promptly. The very nature of our Government, where every thing depends immediately upon the people, forbids the idea that you can effect one or the other. The inconveniences and privations to which they must be subjected, are sufficient causes with the great body of the community, who do not perceive very distinctly how they are to be benefited by an offensive war, to turn their faces against it. Their Representatives, knowing their feelings, dare not press them with a heavy hand, which at once destroys every thing like energy. Besides, the want of promptitude, the characteristic defect of such a Government, whose powers are divided into many hands, prevents the resources even within their reach to be obtained and applied in time to insure success. The consequence of all this is--imbecility in obtaining, and want of celerity in applying the necessary means. This may be considered as a very great evil, particularly to those who have presented to us the example of Rome in her proudest days, when she was mistress of the world, for our imitation. Sir, I rejoice that such is the state of my country. It is the legitimate offspring of our free institutions. The people are strong and the Government is weak; whenever this state of things shall be reversed, then shall we be able to inspire terror into other nations. But until that period shall arrive, we shall exhibit weakness and slowness of action, as to all offensive and external purposes. To retain the British provinces as an indemnity for our losses, is an event which I cannot wish, because I can see no possible benefit resulting from it. Have we not already territory enough? Is it desirable to incorporate with us a people composed of heterogeneous materials, who are not only unaccustomed to our institutions, but many of whom entertain an unconquerable hatred for them? I believe it would have been better had we never acquired any foreign territory at all. If we had been contented with the limits embraced by the old thirteen United States, the prospects of remaining a united people, and preserving our free institutions, would, in my conception, be much more flattering. I am, therefore, opposed to new acquisitions. But it is repeatedly urged that the possession of Canada is necessary to secure us from the hostilities of the savage tribes on our northwestern borders; was this the fact, I might yield my assent to prosecute the war to attain that object. But experience has shown that we can have peace with them, though Canada is in the possession of a foreign power. For seventeen years after the Treaty of Greenville we were entirely exempt from Indian hostilities; and not until we waged war ourselves, did they become troublesome upon our frontiers. My apprehensions are not solely confined to the danger resulting from military power; there are other consequences equally to be dreaded, which I fear may overwhelm us, should we continue in this course. There is one peculiarly delicate, but equally important--so delicate, that gentlemen have supposed it ought not even to be mentioned. Sir, shall I not be permitted to point to the yawning gulf beneath? Shall I not attempt to arrest your progress in the path where lies a serpent that will sting you to death? I deprecate disunion as an event pregnant with every evil. The moment it happens, civil liberty is banished from this country. I feel deeply interested that it should not happen. Permit me, however, to observe, that a union is connected by a consciousness which is felt that the various interests of the different sections are consulted and protected, and not by force. If you wish to perpetuate the Union, you must preserve that opinion. The moment that it shall no longer exist, the ties that bind us together become feeble indeed. The present war, though ostensibly waged for principles in which the Northern and Eastern people have a deep interest, is considered by them--and they certainly understand their interest best--as calculated to prostrate it. They feel the evils of your measures daily, and they see no prospect that they ever will be benefited by them. The physical power of the country is in their hands, and it requires nothing but public sentiment, which quickly follows public interest, and you ripen them for a state of things most of all to be deprecated. I hope we shall avert the evil by banishing the cause of discontent. Besides the immediate physical evils which present themselves as probably resulting from our measures, there are other moral evils which I must dread. Our Government was made to secure the happiness of the people, and every thing which even remotely is calculated to impair their moral sense, will have an effect upon their situation. When the people shall become attached to principles inconsistent with morality, or with their tranquil, civil pursuits, their prosperity and their freedom are at hazard. The spirit of conquest and of military glory, however fascinating, is baneful to the prosperity and liberty of every country. This spirit has shown itself in our country, of late, in an unusual degree. We have become tired of the peaceful character of our pursuits; and we want nothing but success on this first attempt to encourage us to become a great military nation, attempting conquest in every quarter. Whenever that happens, we shall share the destiny of other nations. When the same spirit and the same councils prevail, the misery of the mass of the people is the support of the national glory. One of the evils which I dread, as attending the war, and in my opinion not the least, Mr. Chairman, is, that we have united our exertions with the efforts of the great destroyer of mankind, who, having prostrated the independence of almost every nation on the continent of Europe, has drawn us into our present situation, to assist him in humbling his remaining enemy, whose destruction is, above all others, nearest his heart. I do not believe that gentlemen are so far lost to all sense of their country's interest, as designedly to unite the destiny of this nation with him, who lives only to destroy. I believe them, when they declare that such is not their intention. But we are united in fact. His ostensible object is the liberty of the seas: so is ours. His successes are our successes, and his defeats are our defeats. Being thus associated in fact--having one common object--if the war continues any time, we shall be associated in name also. When pressed beyond our present expectation by our enemy, we shall not make any difficulty in submitting to arrangements which may appear to us advantageous, but which are calculated to fasten us to the car of the conqueror. We may want men to enable us to obtain the object of our offensive operations in the North; France can furnish them. We may want ships to defend our coast; we can obtain them from the same quarter. But, for these things, we must stipulate an equivalent; and what can that be, but to unite in striking England from the list of independent nations? Mr. ROBERTSON.--Mr. Chairman, I am well aware that the House will listen (if it listens at all) with much reluctance to a further discussion of the subject under consideration. Nevertheless, it is my intention explicitly, but concisely to state some of the reasons, which influence me to support the measure proposed; some of the views connected with them, which command my approbation, and induce my aid. Sir, I propose to make a few remarks on the bill itself, and subsequently, without following gentlemen in the wide and expansive range of argumentative, declamatory, and defamatory eloquence, in which they have thought fit to indulge, to reply to some of the observations which struck me with most force, and which my memory still retains. The honorable Chairman of the Committee on Military Affairs is entitled to the thanks of this House, and of the nation, for the able and lucid exposition he has given, of the plan intended to be pursued by the Government in the prosecution of the war in which we are engaged, and of the objects for the attainment of which an increase of the Military Establishment is deemed necessary. What is that plan, and what are the objects in contemplation? The power of the nation is to be called out; a portion for a defence of our seacoast and extensive frontier; the residue to be sent forth to battle against our implacable foe, to drive him from the American continent, and thus to insure our future peace, if not our Union and independence. These objects are avowed, and efforts and energy are necessary to their success. The propriety of defending our country can be denied by none. This proposition is clear. Even the gentlemen on the other side of the House (as it is fashionable to speak) do not oppose it. For myself I do not hesitate to say, it presses itself on my feelings with irresistible force. When I take into consideration the exposed situation of the people whom it is my pride and honor to represent, when I view them surrounded by numerous and warlike tribes of Indians, skirted by strongholds in the possession of a nation devoted to our foe, containing in the bosom of their country a class of beings always on the watch to overwhelm them in ruin, I lose sight of other considerations, and am compelled to urge, as I do most earnestly, that no obstacles may be thrown in the way of our complete protection. I have lived for some years in the country to which I have called your attention. I have not been altogether an inattentive observer, nor indifferent to its interests. The neglected state of the militia under the territorial government, its present unorganized and unarmed state, have not escaped my notice. But we must "blame the culture, not the soil." The inhabitants are brave, expert in the management of the horse and in the use of arms. The materials are good. It is unnecessary to dwell on these, or to mention other circumstances of an internal nature. Suffice it to be observed, our situation is insecure. I have stated, sir, that we are surrounded by numerous and warlike tribes of Indians. I will not recount their numbers, nor blazon their powers of doing mischief. Those facts are too notorious to require repetition. I have stated that strongholds in our immediate neighborhood are in the possession of a people devoted to our enemy. The Spaniards on our eastern frontier are under their perfect control. They considered the English as fighting for the independence of Spain, their native country, their religion, and their King. In their towns an extensive British trade is carried on, and from their ports, where they refit, issue forth the armed vessels of that nation to the annoyance of the commerce of our country. The Indians too are excited against us. On my journey from New Orleans to this place, passing through the Creek confederacy, I received certain information that the Spanish commandant at St. Marks had assured them that their friends the British were expected soon in considerable force at that place and at Pensacola, and that they should be furnished with arms and other munitions of war to be used against the Americans. Sir, humanity to that people, as well as the irresistible claims we have to protection, require that a force should be stationed on the Mobile and Mississippi sufficient to prevent the effect of British and Spanish machination, or to throw back on themselves the evils of hostility. I now proceed to examine some of the objections which have been made, not to the bill, but to the further prosecution of the war. The war is denounced as unconstitutional, cruel, the effect of French influence, and as intended to place James II. on the throne of America. In making the first objection, gentlemen could not have been serious; they could not have expected that it would have been deemed worthy of an answer. The power to make war belongs to all nations; is of the essence of Government; but the Constitution of the United States gives it expressly, in so many words: "The Congress shall have power to declare war, to raise and support armies." Whether the war be defensive or offensive, depends on circumstance and accident, but cannot affect the right. If war be defensive and offensive, still the whole is equal to its parts. But to what does this doctrine lead? Do gentlemen believe it to be true? Then it becomes their duty to move for the appointment of a committee to inquire into the circumstances of the capture of the Macedonian, and if it be discovered that she was taken at more than a marine league from the shore, to cashier the American officer, declare the attack and capture unconstitutional, and restore the vessel to her former master. Then an enterprise, giving rise to a new era in maritime history, and entwining round the brows of the United States a wreath of imperishable laurel, turns out to be a violation of that instrument on the sacredness of which depends the Union and happiness of America. The war is not unconstitutional, nor can it, by any possibility, be so considered. But it is said that, as the Orders in Council are repealed, the question of impressment is the only one in controversy between the United States and Great Britain; and, on the subject, the honorable gentleman from North Carolina, (Mr. PEARSON,) has, without difficulty, settled principles about which jurists have differed in opinion. He contends that individuals cannot divest themselves of their allegiance; that the right of expatriation does not exist; that the practice of naturalization is wrong. These opinions are as erroneous as they are repugnant to every principle of human liberty, and owe their origin to feudal times and feudal States; times and States, the prolific sources of the vilest principles in politics and morals. I believe that every civilized nation under the sun is in the practice of naturalizing foreigners. The omnipotent Parliament of Great Britain exercises this right. The rights of all independent nations are equal. Whatever course Great Britain pursues in relation to the subjects or citizens of other countries, these countries are authorized to pursue in relation to the subjects of Great Britain. Whatever her admirers may say to the contrary, if she does not acknowledge, she is compelled to act in conformity to this principle. Where is there in her history an example of her punishing as a traitor, a Briton naturalized by a foreign Government, although found in arms against her? If a subject could not divest himself of his natural allegiance; if once a subject always a subject, were true, how is it that Napper Tandy was suffered to escape punishment? Why was he not hanged as a traitor? He was born in Ireland, became a French citizen, served in war against his native country, was taken, tried, and found guilty of high treason; but when a terrible retaliation was threatened by France, in the event of his execution, that nation, which never yields to threats, restored him to his then adopted country. But gentlemen are opposed to the further prosecution of the war. Do they contend that the causes which rendered it necessary have been removed? Have we obtained the objects for which it was commenced? Is the new and before unheard-of system of blockade abandoned? A system which, under the pretence of being a military measure, was converted into a commercial scheme beneficial to the belligerents, and destructive alone to the rights of the neutrals. Have our citizens been restored to their country? Is any disposition evidenced to omit tearing them from their homes and families in future? What will be the consequence of laying down our arms, of shrinking from our present attitude? We are at the feet of Great Britain: and after having for years attempted in vain to obtain justice, we are to recommence fruitless negotiation. Admit that we are unable to enforce our demands, to support our independence, that we cannot carry on war, that the friends of the British Government in this country (to use their own expression) will not permit us; in such a situation, with such admission, to expect justice would be folly in the extreme. England would return to her habitual spoliations, would re-establish that state precisely the most beneficial to herself, the most injurious to us: infinitely better to her than peace on fair terms, for then the opportunity would be lost of feeding and enriching her navy at our expense; better than war, as the numerous prizes brought into her ports of late very clearly prove. Formerly the losses were exclusively ours. Yes, sir, willingly would she return to, and forever continue, her former career of depredation; and the next ten years would add another thousand to the thousand American vessels already carried into her ports. Too long did we suffer disgrace and degradation. Peace, with all its blessings, may be enjoyed at too dear a price. But yet, while it was possible to preserve it, we shut our eyes against the most flagrant injuries; we affected not to hear the loudest insults. Peace was congenial to our habits, favorable to the principles of our Government. It was not to be apprehended it would be, nor cannot be now believed that it was wantonly abandoned. Whilst tranquillity prevailed it was wise to dwell on its advantages. Now, that in spite of all our efforts we are at war, it is well to inquire whether circumstances may not grow out of it favorable to our future happiness and prosperity. The British possessions in America present themselves to our view and invite a conquest. I am struck with the contrariety of opinion which prevails among gentlemen. Some of them speak of the country as barren, the climate as inclement, the inhabitants thereby scattered over the face of the territory. If this be true, it will not be considered as worth defending, and as by its loss Britain loses nothing, the sympathy which she seems to have excited, and the doleful jeremiads to which her anticipated disasters have given rise, are as unnecessary as they are misplaced. But others say, no doubt from its importance to its European sovereign it will be defended to the last extremity; that the United States cannot take it; that the army we propose to send into the field will prove insufficient. When gentlemen differ so widely, no satisfactory conclusion can be drawn from their opinions. Sir, Canada will be defended, and it is from a belief of that fact, and from a knowledge of the force which Great Britain may bring into the field, that the troops now demanded become necessary. We have heard an estimate of that force too often to be again repeated. It has lost nothing of its magnitude and importance. Its valor has received the highest praise, and we are triumphantly asked if we expect to intimidate Great Britain. Sir, none but cowards calculate on the cowardice of their foe. We do not expect to intimidate her. We expect to meet her armies in the field and to vanquish them. The power of Britain must be extinguished in America. She must no longer be permitted to corrupt the principles and to disturb the peace and tranquillity of our citizens. Our frontier inhabitants must not be kept in dread and danger from her Indian allies. And never shall we be secure among ourselves, and exempt from the mischievous intrigues of Europeans, until European power is expelled across the Atlantic. The gentleman from Massachusetts says, that Canada entered into the scheme of the war. It certainly does now enter into the scheme of the war. Sir, no citizen of the United States would have given his consent to an unprovoked attack on that country merely for the purpose of getting possession of it. But I do, for one, rejoice that, under present circumstances, we thus have an opportunity afforded us, not only to make our enemy feel our power, but to drive him from this continent, and to remove one of the most frequent causes of war among nations--neighborhood and contiguity. The evils of peace, on the terms of gentlemen in opposition, cannot be borne. Let us then, with firmness, persevere in the contest in which we are engaged, until it can be terminated on principles compatible with the rights and honor of the nation. The committee now rose, reported progress, and obtained leave to sit again. TUESDAY, January 12. _Additional Military Force._ The House again resolved itself into Committee of the Whole, on the bill to raise an additional army of twenty thousand men, for one year. Mr. EMOTT addressed the Chair as follows: Mr. Chairman: I mean no common-place remark, when I declare to you, that I address you on the subjects which have been brought into this debate, and as I think properly so brought, with great reluctance. My general deportment since I have been honored with a seat on this floor, is sufficient evidence to you and the committee that I feel an unwillingness to mingle in the war of words which is carried on here. There are causes which add to this repugnance on the present occasion. The debate has been continued for such a length of time, and in part has been conducted with so much asperity, that the minds of all have become fatigued, and the passions of many inflamed. I know, and I duly appreciate the difficulties which, under such circumstances, surround and face the speaker. But, sir, there are considerations of public duty, and individual propriety, which urge, nay, demand of me, to ask your patience, and the indulgence of the House, while I present to you and to them my view of the great subjects involved in this discussion. Mr. Chairman, I am aware that, in the discussion I am about commencing, I shall render myself obnoxious to the wit of gentlemen who think that, to bring into view other topics than those which arise out of the details of the bill now on your table, is to go beyond the range of legitimate debate. The bill contemplates the raising an additional military force of twenty thousand men; thus increasing the Military Establishment, or the standing army of the country, to upwards of fifty-five thousand men. Now, sir, with the details of this bill I have nothing to do. Nay, I will confess to you that I like the bill as it stands, providing for enlistments for one year only, better than I should were it amended, as has been proposed, by prolonging the terms, precisely for the reason that the force will be less efficient and dangerous, and more under legislative control. I meddle not with the fitness of the instrument. That is the business of other men; but, being opposed to the continuance of the war offensively, as I was to its commencement, I cannot consent to grant any further force to carry it on. The only check, or control, which the Legislature can constitutionally have over a war after it is begun, is in withholding the means; and, in voting the means, either in men or money, every member of the Legislature ought to be satisfied of the necessity of prosecuting the war. According to my best judgment, sir, this war was improperly commenced, and it is unnecessarily continued; and I shall now proceed to explain the grounds of that judgment by an examination of the causes of the war, as they existed at its commencement, and as they now remain. As this is the first time the subject has been brought into debate, and, indeed, the earliest opportunity which has been allowed, of an open discussion, I am sure I shall be pardoned for going into detail, if I even should be tedious, as I know I shall be uninteresting. It is a right which I think I may claim, to state distinctly my reasons and motives for the votes which I have given, and may give, in relation to the war, after what has been said in this House, and out of it, about the opposition to the views of the Administration. In making this examination, I shall pass in review, in as brief a manner as possible, the three great subjects of complaint against Great Britain; her orders of blockade, her Orders in Council, and her practice of impressment. But for one or all of these, the war certainly would not have been declared; and I may assume that, for but one or all of these, the war ought not to be continued. I cannot, indeed, but recollect, that the gentleman from Louisiana has mentioned the conquest of Canada, and of the Floridas, as causes for the continuance of the war. As respects the Canadas, I have heretofore understood that their reduction might be a consequence of the war, but never until now did I know that it was to be shifted into a cause for carrying it on. And, in regard to the Floridas, I will not consent that their conquest should, in the existing relations of this country, be either a cause or consequence of war. I will confess to you, that an invasion of the colonies of Spain at this time, under the stale excuses of convenience or necessity, strikes me with abhorrence. It is not only against the genius of our Government, and, as I hope, the character of our people, but, if persisted in, will be a foul blot in our national history. [Here the speaker entered into an elaborate documentary investigation to show that the Decree of Blockade, and the Orders in Council, were not adequate causes for war at the time it was declared--and that both these causes had since ceased to exist, the Orders in Council having been revoked, and the fictitious, or paper blockades, discontinued.] Impressment of Seamen.--The injury done to our seamen under the British practice of impressment, was also made a cause of the war, and to the eye, at least, it is the only one which now remains. Mr. Chairman, the discussion of this subject is attended with adventitious difficulties, growing out of the times and the state of the country. The public mind, in some sections of the Union, is in such a feverish state on this account, from tales oft told of bondage worse than negro slavery, and of condemnation without trial, that the person who is willing to "hear the other party," is at once branded with foreign partialities, and threatened with the trial by mob. Besides, sir, it is intimated that a negotiation is to be had, or may possibly be attempted, which may be affected by an open discussion of the topic. In point of duty, I feel myself called upon to take some notice of the subject, but my view of it will be less perfect than in a different situation I should think desirable. The President, in the war Message, thus introduces the subject: "British cruisers have been in the continued practice of violating the American flag on the great highway of nations, and of seizing and carrying off persons sailing under it; not in the exercise of a belligerent right, founded on the law of nations against an enemy, but of a municipal prerogative over British subjects." As this does not present the case in its true light, I shall, for the purpose of fairly bringing to view the conflicting claims of the two nations, give you an extract from the letter of Mr. Madison to Mr. Monroe, of the 5th of January, 1804, containing instructions for a treaty with Great Britain: "With this exception, (persons in the military service of an enemy) we consider a neutral flag on the high seas, as a safeguard to those sailing under it. Great Britain, on the contrary, asserts a right to search for and seize her own subjects; and under that cover, as cannot but happen, are often seized and taken off, citizens of the United States, and citizens or subjects of other neutral countries, navigating the high seas, under the protection of the American flag." The claim, then, on the part of the British is, that in time of war they have a right to enter neutral merchant vessels on the high seas, to search for and seize their subjects, being seamen. On our part it is, that on the high seas the flag shall cover and protect all sailing under it, whether British subjects or American citizens. These are distinctly the claims of right on the part of the two nations, and I shall so consider them, without regard to practice apart from right. One or two remarks, sir, before I enter upon the subject. The first is, that I do not mean to moot the point, relative to the rights of our naturalized citizens, or the extent of our duties towards them. But this I will say, that I am willing to give them all the protection which the situation of the country and its true interests will justify. I know that the unruly passions and the meddling dispositions of some foreigners, have raised prejudices in the minds of many persons against all foreigners. But I know, also, and I speak without reference to political opinions or prejudices, that among our naturalized citizens are to be found men, and many men, too, of great worth and respectability, and who are extensively useful to the country. These men have my good will, and it is certainly my wish, that they should be fostered and protected, as far as it can be done, without putting at hazard the great interests and the permanent welfare of the country. But, sir, to this class of our citizens, the claim that they are to be protected on the high seas by our flag, is really of little importance. Our claim never was, and I am sure never will be, that they are to be protected, if they put themselves within the power of their former Sovereign, by going to his ports, or placing themselves on his territories. And yet such is the state of the commerce of the world, that it can scarcely happen in a mercantile voyage, in this or the other hemisphere, that the vessel will not at some time be in a British port, and the crew on British ground; our right of flag will not then save our adopted citizens from impressment. For the slight benefit, therefore, to our naturalized citizens, which can arise under our claim, if established, I am sure the well-meaning and reasonable part of them will not ask the country to continue the war on their account. Another remark which I wish to make is, that I am most decidedly the friend, nay, sir, if you please, the partisan, of the seamen of the country. I have no doubt that this nation is destined to be a great maritime power; and that, in times not very far distant, we are to owe our prosperity, as a commercial people, and possibly, under Providence, our security, to our seamen. I am therefore a friend to "seamen's rights," properly understood and fairly enforced; but this shall not blind me to the rights of others. Besides, in a war to be carried on for seamen alone, and that, too, on the abstract question of the right of flag, I can see great danger to the seamen in their just claims to protection; and, I must beg their friends, in and out of this House, to reflect before they act. As surely as the war is continued on this ground alone, so surely will seamen become unpopular, and their rights be neglected. When the evils of the war press upon the country, and press they will; when the many lives sacrificed, and the countless millions expended, shall be brought to view, is it not to be apprehended that seamen and their claim will be remembered, only as the cause of the scenes of expense and blood through which we are to pass? It is not dealing fairly with our seamen, to make them the scape-goats of this war. The British then claim the right, in time of war, to take their seamen out of neutral merchant vessels on the high seas. _Is this claim a novel one?_ That the claim is novel, is certainly intimated by the Committee of Foreign Relations, when they say that the impressment of which we complain, is "a practice which has been unceasingly maintained by Great Britain in the wars to which she has been a party since our Revolution." Indeed, it has been most roundly asserted, and by many it is believed, that the British claim was made for the first time after our war; that it originated in views hostile to our commerce and maritime rights; and that in practice it is only brought to bear upon us. In truth, however, whatever may be the justice of the claim, it is not a recent one. It has, in a greater or less degree, been practised on in all the wars in which England has been engaged for the two last centuries. The instructions to armed ships are not frequently made public; but it so happens, that we have in print an instruction on this very point, given in 1646, by the Earl of Northumberland, Lord High Admiral of England, to Sir John Pennington, which goes beyond the present claim: "As you meet with any men of war, merchants, or other ships, belonging to any foreign Prince or State in any road where you, or any of His Majesty's fleet, may happen to come, you are to send to see whether there be any of His Majesty's subjects on board; and if any seamen, gunners, pilots, or marines, (whether English, Scotch, or Irish,) be found on board, you are to cause such of his Majesty's subjects to be taken forth, and so disposed of as they shall be forthcoming, to answer their contempt of His Majesty's proclamation in that kind." These instructions were modified in the reign of Charles the Second, so as to exclude public armed vessels, and with this modification they have come down to the present times. If it were at all necessary to the purposes of my argument, I might show that this right has been exercised both towards France and Holland, long before we had existence as a nation. Their vessels have been searched, and British seamen taken from them. But enough has been said to prove that the claim, if unjust, is not novel. _Is the claim peculiar to the British?_ I am justified in saying that this claim, in time of war, to search for and seize seamen in neutral merchant vessels, on the high seas, has been made and exercised by every maritime nation in Europe. To be more particular--I assert, and stand ready to prove, that it has been made and enforced by France as well as England, and is now. It would be a waste of time to go very much at large into the French usages on this subject. I propose to do little more than to refer to one or two French ordinances, and then show from our State papers their practical application to us. By the French laws, and they are ancient laws, the seamen of the country are all classed, and enrolled, and licensed. In 1784, an edict was made which is still in force, declaring, that any classed seaman, who shall, in time of peace, be found serving in foreign ships, shall be sentenced to fifteen days' confinement, and reduced to the lowest wages, and serve two years extraordinary at the lowest rate; but those who, in time of war, shall be arrested in foreign ships, or passing into foreign countries, shall be sentenced to three years' service in the galleys. Under the authority of this, and similar ordinances, the French have taken their seamen out of our vessels, and in some instances our seamen with them. Mr. Chairman, the first proof relative to the committee, is the impressment document of January last, known to the American people as the 6,057 document. The Secretary of State, Mr. Monroe, at the close of the introductory report, says, "it is equally impossible, from the want of precise returns, to make an accurate report of the names or number of _citizens of the United States, who have been compelled to enter into the French service, or are held in captivity under the authority of that Government_, whether taken from vessels captured on the high seas, or seized in rivers, ports, or harbors; the names of a few only, greatly below the number believed to be so detained, being within the knowledge of this Department. A detail therefore is not attempted, with respect to this part of the call of the House of Representatives." Yes, sir, it is known to the Administration, that some of our citizens have been compelled to enter into the service of the French Emperor, while others are held in captivity by him. Ask, however, for their names, and you have for answer, that all the persons detained are not known to the Government, and therefore it cannot be material that you should have the names of any. Say to gentlemen, here is a case of American rights violated, and you will be told, that the injury, in practice, is not of sufficient importance to justify strong measures against the French Government. Be it so. But attempt to prove to the same gentlemen, that the practical operation of British blockades and Orders in Council, is not such as to require war, you will then hear, that it is necessary to fight about the principle. I have one other paper to lay before the committee, on this subject. For some years back, the information about French impressments has been general and vague, or altogether withheld. Formerly this was otherwise. In a report respecting the impressment of seamen in 1797, made by the Secretary of State to this House, on the 27th of February, 1798, we have the names of upwards of twenty American citizens, taken out of American vessels, on the high seas, by French privateers. We have more, sir. This same report states, that two French seamen named Lewis had been impressed from on board the American ship Bryseis by a French Commodore's ship; that Francis Gibbons, a native of France, but married and resident at New London in Connecticut, was impressed from the American ship Edward, at Rochefort, by authority of the French Republic, and put on board a French ship of war: and that Henry Doughty, an American, was impressed at sea from the American brig Elsa by the French frigates Lapancy and Thetis. I could instance other cases, but these are sufficient to show, that neither the claim nor the exercise of it is peculiar to the British. If this right, or claim of right, however, is made a mere pretext by any nation to seize and detain our seamen, I am willing to allow that it would be a cause of war. But even in this case, war ought not to be waged until we have done our duty to our seamen and the offending nation, by making suitable regulations to prevent the employment of the seamen of such nation. Have we done this, as respects Great Britain? Perhaps some such regulation is to be found in the law which defines what vessel is an American vessel, and which, as such, is entitled to hoist our flag. Look at it, sir. According to the act of December, 1792, an American ship is one wholly owned by an American citizen, and commanded by a person also a citizen. The crew may be all foreigners--all Englishmen, if you please--all English deserters. In this, therefore, we find no security to the British Government. But, we have also the law of May, 1796, which provides, that the collectors may register seamen calling themselves American, and grant certificates of citizenship. Out of this law, it is presumed, has grown the practice of granting protections, as they are called--papers procured from notaries and magistrates, ofttimes on the most barefaced perjuries, and always considered as a species of negotiable property for value received. Sir, these protections, in their abuse, are a scandal to the nation. It has made false swearing an employment, and the granting of false papers a business. The price of such a paper is as well known in the great seaport towns as is that of your stocks. All ages and complexions and tongues may have this badge of citizenship, by paying the charges in such cases provided. If this, however, was not so; if protections were only granted to real Americans; it is difficult to see how this is to prevent the employment of British sailors. It is not necessary that the persons navigating an American vessel should have them. This act of ours was presented to the British Government by Mr. King, in January, 1797, and Lord Grenville, on the 27th of March following, in a manner highly conciliatory, and certainly with much force, stated specific objections to the law. The Executive, when in July last he answered the call of the Senate for papers relative to impressments, omitted this letter of Lord Grenville, but he gives a letter from the then Secretary of State, to our Minister at the British Court, of the third of October, 1797, in which the force of the objections seems to be admitted: "Lord Grenville's observations on the act of Congress for the relief and protection of American seamen, present difficulties which demand consideration at the ensuing session." Nothing was, however, done at that or any future session. In truth, we have done nothing to prevent the employment of British seamen in our public or private ships; and they are to be found in both. And yet, with this fact staring us in the face, we are called upon to say that the war is altogether just on our part! It will probably be urged that the British practice under this claim, in its application to us, was sufficient to prove that the reclamation of their seamen was not so much the object of the British Government, as the seizure of our seafaring citizens: that it had become so outrageous as not only to justify, but to require war. Without, sir, meaning to excuse or to palliate the taking even the cabin boy, if done knowingly and wittingly; and being willing to admit, that about the period of the attack on the Chesapeake, we had much and serious cause to complain on the subject, I must be permitted to say that I have not evidence to satisfy me, that when we declared war, the practice of the British was such as to prove that the claim on their part was a mere pretext to take our sailors. In truth, I believe, if the Administration have not deceived themselves on this subject, that they have attempted a gross deception on the public. The instructions given at this day, by the British Admiralty to a naval commander, on this subject, directs him, "when he meets with any foreign ship or vessel, to send a lieutenant to inquire whether there may be on board of her any seamen who are the subjects of His Majesty; and if there be, to demand them, provided it does not distress the ship; he is to demand their wages up to the day; but he is to do this without detaining the vessel longer than shall be necessary, or offering any violence to, or in any way ill-treating the master or his crew." Mr. Monroe may perhaps recognize in this, the instructions shown to him after his arrangement, and of which he declared himself satisfied; but whether he does or not, it must be conceded that it provides for a moderate exercise of the right. The person who is to make the search is an officer of some standing; he is only to take seamen who are British subjects, excluding thereby, not merely our citizens, but all foreigners; and he is not to take even British seamen, if, by it, he destroys the crew, or endangers the vessel. Allowing the right to exist, it is difficult more fairly to regulate its exercise. But it may be urged that the practice of the British commanders does not correspond with these instructions; that they search and seize at large, according to their will and pleasure. I know, sir, that the habits and education of a military man, not unfrequently make him act as if power and right meant the same thing: and I, therefore, have no doubt that there have been abuses. But I do most conscientiously believe that these abuses have been greatly magnified, and are, even by the well meaning, vastly overrated. I am aware that I shall be referred to the impressment document of last session. This document, sir, is so illy understood, and has been the source of so much misrepresentation, that I must be allowed slightly to review it. The Secretary, in the report says, that the list transmitted had been received from our agent at London, and "contains the names of American seamen and citizens who have been impressed and held in bondage in His Britannic Majesty's ships of war, for the several quarters of 1809 and 1810." The list is headed, "A return or list of American seamen and citizens who have been impressed and held on board of His Britannic Majesty's ships of war, from 1st of April to the 30th of June, inclusively," and so of the other quarters. Now the plain meaning of this is, if any meaning it has, that the persons whose names were thus sent to us were impressed and made to serve on board British armed ships, at some period in the years 1809 and 1810. Indeed, this has been so stated in this House, and in the Administration prints. And yet the most superficial examination will show that this is not true. Let me read to you one or two names: "4868. David Wiley." In the column of the "result of applications and remarks," we have this explanation of his case: "Impressed on shore at New Brunswick, and taken on board the Plumper, was detained two days, when the commander put him on board a vessel bound to Aberdeen, from thence worked his passage to London, and appeared at this office 29th August, 1805; is evidently an American. Discharged." Here, then, we have a man who was not on board a British ship in 1809, and whose "bondage" did not probably continue more than two days. Again, "4936. Richard Butler, representing himself of Petersburg, Pennsylvania. Impressed 1797 at the Cape of Good Hope, from the Mercury of Baltimore, and detained on board the Garland." Remark: "Remained on board the Garland two months, then draughted to the Tremendous, in which he served two and a half years, was then discharged; has never received his wages or prize-money; says he was well used on board both ships. Was discharged as an American citizen at the Cape of Good Hope; his pay and prize-money lists were given to the consul at the Cape. Discharged." This man, therefore, according to the statement of our Consul, so far from having been impressed and held on board a British ship in 1809, had been impressed in 1797, and discharged in 1799. I might, sir, give you many other cases equally strong, but these are sufficient to prove that, by design or mistake, the document is wrongly headed; that the persons named in the list were not all on board British ships in 1809 and 1810; and, therefore, that, in its general results, it does not show the state of the British practice in those years. In truth, the list is nothing more than the return of the names of persons who, within the year, had applied to Mr. Lyman, our Consul and agent for seamen, for protections against future, or for his aid in getting released from present impressment. It was his duty, as I do not doubt it was made his interest, to receive all applications, and when necessary, to lay them before the proper British authority. Jew and Greek, Turk and Christian, the growth of our own soil, and the produce of other countries, all threw themselves upon Mr. Lyman, and he, laboring in his vocation, granted patents of citizenship, or made his claim on the British Admiralty. Sir, there is not a man who, in practice or by inquiry, has made himself acquainted with the manner in which this business is transacted, but knows that many foreigners who never saw this country, or sailed under its flag, have attempted, by application to our agents abroad, to shield themselves against British impressment. The Secretary of State, Mr. Monroe, needs no information on this subject, having himself resided in London as our Minister. It was the duty of our agent to send home some account of his proceedings, and I have no objection to his making such a list as we have before us. But I do object to its being palmed on the American nation as a true history of British impressments affecting our people and nation. I pray you look at this list. In the year commencing in April, 1809, and ending in March, 1810, we have about nine hundred and forty names; and of these, about seven hundred are given with blanks in the columns for the "towns and States of which they represent themselves to be citizens"--"when impressed"--"where impressed"--"ships from whence taken"--"nations"--"masters." The time and the result of the application are only given. And from these entries in Mr. Lyman's book you are called upon to admit that the applicant was an American, and that he was impressed in the year 1809 by the British, on the high seas, out of an American vessel. Really, this is asking too much. Mr. Chairman, I have examined the list from April, 1809, to April, 1810, with great attention, for the purpose of ascertaining the number of impressments which took place in that year, and I will now make to you one or two statements, which may cast some light on the subject of the British practice. The number which, by the list, appears to have been impressed in that year, is one hundred. It will be understood that in this number I do not include those whose names are carried out in blank, as has been stated. It is uncertain whether such persons ever were impressed; and, at all events, it is fair to presume, that their service on board British ships had commenced before 1809, or otherwise there could be no difficulty in giving dates. Of the one hundred, seventy-six were discharged, and six had deserted, leaving less than twenty to be accounted for. Another result: Of the persons thus taken, fifty-seven were impressed on shore, and forty-three at sea. Again: Thirty of these seamen, when impressed, made part of the crews of British vessels, and thirty-four American vessels; and of the thirty-four, twelve were taken on land; leaving about twenty-two persons taken from American vessels on the high seas. It is possible, sir, that in these statements I may not be perfectly accurate; I am certain, however, that I am substantially so. I do not mean to represent that this is a full account of all the impressments which took place in 1809; on the contrary, I admit that it is not. Many impressments were certainly made of persons undeniably British subjects, who would scarcely think of applying to Mr. Lyman, and will not, therefore, be found in his book. Many persons, also, having a right to his interference, were not then known to him. My object in making these explanations, was to show that the 6,057 document does not furnish such strong evidence of British aggression as has been supposed. The number of our seamen impressed by the British has been so variously represented, that I have, from motives of curiosity as well as duty, been desirous to arrive at something like a reasonable certainty on the subject. We hear of ten, twenty, nay, forty thousand of our citizens, confined in the floating dungeons of Great Britain, fighting her battles against their will. The evidence of this, however, is only to be found in the imagination of gentlemen. It is the old story over again, of the "six men in buckram." In part representing the greatest commercial State in the Union, it may be expected that I have some personal knowledge on this subject, but indeed I have none such to give. Is there not in this some proof that the evil has been magnified? I have sought for information in quarters where only it is to be found, among the shipping merchants and ship owners of the country. I will now furnish you with the opinion of an intelligent gentleman from Marblehead, whose means of information are ample, and whose veracity will not be doubted. I mean my friend from Massachusetts, who sits before me. (Mr. REED.) He has favored me with this statement. "In answer to your inquiry relative to the seamen of Marblehead, I have to remark that the average shipping of that port, for the last twenty years, may be estimated at about 19,006 tons, of which it is fair to calculate ten thousand tons were employed in foreign commerce, and the residue in the fisheries and in the coasting trade. Allowing six men to every hundred tons, which is the usual estimate, it gives an average of eleven hundred and seventy-six seamen in all, and six hundred in our foreign trade, each year; the number of seamen, therefore, employed from Marblehead for the last twenty years, must have been considerable, say five thousand. I have resided at that place nearly twenty years, and, during the greater part of the time, have been actively engaged in commerce. According to my own recollection, aided by that of others who have the best means of information, I do not believe that twenty of the seamen of Marblehead, native or naturalized, have been impressed by the British within the twenty years, and it is not known that one has been demanded without being released." As there is no reason to suppose that Marblehead has been more fortunate with respect to impressments than other places, we have here something whereby to form an estimate of the number of our seamen taken by the British. My own conviction is, that the American seamen, impressed and held by the British, at the commencement of this war, did not much exceed five hundred in all, and certainly did not amount to one thousand. Permit me, sir, to mention one circumstance which speaks loudly on this subject. If the practice of impressment had been as outrageous as has been represented, it must have fallen with great force on the Eastern States, as it is there the mass of our seamen are found. We are then to expect much feeling and passion on this account. The war must be popular when the cause of it is brought home to every man's door. No such thing, sir. The war is confessedly odious there. It is in States where seamen never grew that the war has its strongest advocates. It is there that you principally find the dark pictures of sailors' sufferings, and hear the loud and long appeals to the sympathies and passions of the people about seamen's rights and seamen's injuries. I have now, sir, finished the remarks which I intended to make on the British claim and practice of impressment. We have for years past had so much idle declamation on the subject, that a dispassionate investigation of it appeared to me to be called for. In the course of these remarks, I have attempted to show that the claim was neither novel nor peculiar, and it is not wholly unsupported by reason; that our true interest calls more for a fair regulation of the practice than an abandonment of the rights; and that the conduct of the British, of late, has been such as to warrant an opinion, that an arrangement may be made, having for its object a proper regulation of the practice, leaving the rights of both nations, whatever they may be, untouched. Sir, with this view of the subject, it is not possible for me to consent to the adoption of measures, having for their object the further prosecution of the war offensively on our part; and I cannot, therefore, vote for the bill on your table. The war has not yet assumed a character. We have, indeed, added much, and are about to add more, to the public debt. Already a portion of our citizens are burdened with oppressive exactions in the form of duties, and heavy taxes are staring all in the face. But yet our homes and altars remain safe and unpolluted. Let us seize this moment to give the nation peace, and the people happiness. This is the appointed time, and if we do not improve it, I fear my country is to suffer in its prosperity and its institutions. For Heaven's sake let us pause! Mr. MACON said after failing in his attempt to amend the bill, he had considered it of very little importance; indeed, in its present form, he was not anxious whether it passed or not; and he had intended not to have troubled the committee on the subject, but the strange course which the debate had taken had called him up almost against his own consent. He could truly say that he would not have offered a word to the committee, had not those who oppose the bill have brought into the discussion French influence, operating by a sort of magic on every act of the Executive. The conduct of the Executive had undergone the strictest scrutiny by these gentlemen, and their own arguments would, in his opinion, convince every impartial man, that it had been perfectly fair and upright to all foreign nations; the least attention to the documents, which have from time to time been published, would also convince every man of it, and satisfy all that the great object of the Government had been peace, and that peace was maintained until it could no longer be done without surrendering almost every national right worth preserving. Mr. M. said he would endeavor in his observations to follow the example which had been set the last two days: not to utter a word to wound the feelings of any one; nor would he refer to the documents, because every member possessed them, and they had been published for the information of the people; and he was sure that the committee must be tired with hearing a sentence here, and a paragraph there, read from them. The true way to understand them was to read the whole. But he had never been in the practice of making many quotations from books or documents, and he thought it unnecessary to make any now. He was clearly of opinion that the gentlemen who were opposed to the Administration had the right to say whatever they thought of it, and to select the subject on which they would speak; and as they had made the selection, he hoped they would have an opportunity now to deliver their sentiments. He, however, regretted that they had selected this bill; because, of all the bills which may be brought before the House the present session, not one, he thought, would require despatch more than this. The loss of a day now may be the loss of the next campaign. He had expected that this general debate, which seems to include every thing but the bill, would have been delayed until the loan should be under discussion. The points made in the debate seem to be: impressment; the right to expatriate; the right to naturalize; and French influence; neither of which have any connection with the bill, which is to raise troops for one year. Sir, said Mr. M., I will not retort a charge of British influence, and so balance one assertion against the other, because I do not believe that there is much of either in the nation; but if I was to say there was none, I should not say what I believe. People may honestly differ in opinion as to the effect which the success of England or France over the other might have on the interests of the United States, without being under the influence of either; and this, no doubt, is the case with thousands. I will, before I proceed further, notice some of the observations made by the gentleman from New York, (Mr. EMOTT.) If I have not understood him or any other gentleman correctly, I hope that I shall be corrected; because it is my sincere desire to state their statements fairly; and it is not always possible to take down their own words. He said, if there was any English influence, it was the influence of Locke and Sidney. As well might he have spoken of the influence of any other patriots who lived before us. Their influence will be respected wherever their works shall be read; but that sort of influence is not the influence of which we have heard so much, and which I intend hereafter to notice. He also mentioned the influence which drove the first settlers to Plymouth. Yes, sir, that influence was truly British, and that sort of influence Great Britain has been exercising ever since the first settlers, by their own industry and exertions, got into a situation to be useful to her; and that influence, or rather that persecution, compelled the first settlers of Carolina to leave the other provinces, and to settle a second time in the woods, and, as soon as they were able, to pay taxes. That same influence followed them, and made their condition much worse. It pursued the people in every part of the continent, until they declared themselves independent; and, from that day to this, she has not treated the United States as she has treated other independent nations. Mr. Chairman, I was astonished when the gentleman told us he was not a friend to standing armies; and, almost in the same breath, said that, at the last session, he voted for raising the twenty-five thousand men, and that he did not mean to go to war when he gave the vote. For what purpose, then, could they be wanted? Experience had already shown that the old establishment was quite sufficient in time of peace. Indeed, a very considerable part of that was raised soon after the affair of the Chesapeake, and under an expectation that war would follow, and not for a regular peace establishment. The same gentleman told us, that impressment by the British Government was no new thing. This is certainly true as far as regards her own subjects, and from her own vessels; but the systematic impressment of foreigners from foreign ships, is a new thing; and that, too, when the men and the ships both belong to the same nation. That Government never attempted to impress Spaniards, Dutch, French, Swedes, or Danes, from vessels belonging to the same nation with the person; and it is this new doctrine, which operates solely on us, of which we complain. The question between us and England has nothing to do with the doctrine that free ships shall make free goods, or free men, if gentlemen please. And why draw that into the debate on the impressment of American citizens from American vessels? No law or precedent can be produced for this abominable and wicked practice. It was never attempted to be justified, notwithstanding impressment is no new thing with her. Every Sovereign, said the gentleman, has a right to the service of all his subjects in time of war. But this right is like some others which Sovereigns claim; it is without a remedy. Of what avail is the proclamation of the Prince Regent in this country, ordering the British subjects home? None. Many of them are still here, and, probably, will remain until the termination of the war, and the British Government will never dream of punishing one of them for disobedience. But, admit this right in Sovereigns to its fullest extent, and it does not give one Sovereign the right to impress the citizens or subjects of another; nor does it justify such an act; of course it does not touch the act of which we complain; that is, the impressing of American seamen from American vessels. It is curious that, throughout this whole debate, there seems to have been drawn a distinction between the rights of a man who cultivates the soil, and of him who follows the sea, and that this distinction should have been drawn by those who claim to be the champions of commerce and of a navy, and who have told us that agriculture and commerce were inseparable. Ought it not, then, to follow, that the rights of those employed on land or water should also be inseparable? This strange doctrine, as was observed by the gentleman from Louisiana, (Mr. ROBERTSON,) may dust the eye, but cannot stagger the understanding of any one. The same gentleman said, that we had taken no measures to exclude British seamen from American vessels. For what purpose were protections given to American seamen? Surely to protect them against impressment, and to show that we had no desire to protect others; and what more ought to have been done, he did not tell us. I ask, did any nation ever do more? Besides, has not the United States, over and over again, offered to make an arrangement with England on the subject of sailors, which should be satisfactory to both, by securing to each the use of their own sailors? and has she not always refused to make any arrangement about them? And it may be fairly asked here, what measures Great Britain has taken to prevent her officers from impressing our seamen? None that I have heard of, and she is the aggressor. We have not injured her, while she has been impressing our sailors whenever she wanted and could find them. If the United States wanted sailors ever so much, they could not impress one of hers, and she knows this; and she would not suffer one of them to be impressed by any foreign power; and we must determine to defend the rights of ours, or it will be idle to talk about navigation, commerce, and a navy. Indeed, if commerce and agriculture be inseparable, you must defend the rights of the persons concerned in both, or both must be injured. There are no neutrals able to carry our products to market, and if you will not protect your seamen, they will not carry them. It is worthy of remark, that, for twenty years past, the Government of the United States has been trying to settle the question of sailors with Great Britain, and that every attempt has failed, and that it is just now discovered that we have always begun wrong. My colleague (Mr. PEARSON) and the gentleman from Connecticut, (Mr. PITKIN,) it appears, could settle this great question without much difficulty. If they can, I wish most sincerely they would. I am, however, apprehensive that they are a little mistaken, because General Washington, when President, having Major Pinckney, now Major General Pinckney, for Minister at London, tried without effect. Mr. Adams renewed it with Mr. King for Minister; Mr. Jefferson with Colonel Monroe and Mr. Pinkney, now the Attorney General; and Mr. Madison, with the last named Pinkney. All these Presidents and Ministers, with the aid of every Cabinet, have failed. Every description of political opinion, with the greatest talents, have been employed and done nothing. At the end of twenty years we have gained nothing, and lost our labor; the question is as unsettled as ever; and we have been worsted in this way, that, while we were negotiating, they were impressing seamen. We have been told by my colleague, that it is not the right, but the abuse of impressment of which we complain. It is true, sir, that we do not complain of Great Britain impressing her own subjects; she may do as she pleases with them; that is no concern of ours; all we ask of her is to keep her hands off our people; and we deny her right to impress American citizens; and if the abuse be the impressing them, of that we do complain, and not without just cause, because she has impressed many of them, and compelled them to fight her battles; and I have understood, after we had declared that war existed between her and us, that she detained those she had before impressed as prisoners of war, and this may be a part of her public law. Indeed, we have heard much about universal law and public law, neither of which, from the statements made, seem to have much regard to right or justice, which ought to be the foundation of all law. One universal law seems to be, that Sovereigns can command their subjects to return home in case of war; another, that no person can expatriate himself; and Great Britain is no doubt willing to acknowledge another, by which she might impress sailors from all the world. As to the first, we need not trouble ourselves about it; and the second, the United States have not acknowledged; and we are now contending against impressment; and permit me here to observe, that the republicans have always considered the impressment of citizens a more serious injury than the spoliation of property. I must return to Porcupine's paper,[33] which, as well as I now recollect, never contained a sentence in favor of the Revolution, or much in praise of the constitution, if it was praised at all; no outrage was committed which it did not approbate; a few of the outrages of that time shall be stated: The Rogue's March was played under the window of the man who drew the Declaration of Independence, The man who first took up arms after the fall of Charleston, and whose body had been almost riddled in defence of his country, was a member of Congress, and was insulted at the circus. Another member, of no common cast of mind, was insulted at the theatre; a man who will do his duty in whatever situation he may be placed. Another, returning home with his family, was insulted and almost mobbed; he is now one of the Cabinet, mentioned by the gentleman from Massachusetts, (Mr. QUINCY.) If I was not almost exhausted I would give some of the details of these then fashionable transactions. I will only add, it was nothing in those days for a few men to whip a printer whose publications they did not like. All these outrages and violations of law, it is believed, were not only approved by the editor of the before-named paper, but other Federal papers also. This same editor claimed to have more subscribers for his paper than any other editor in the Union. And after he returned to Europe, he wrote and published about some of his former supporters. Had this have been a French editor, and acted toward the Federal party as he did toward the Republican, and the subscribers to his paper Republicans, could not those who look at every thing now done to find French influence, have had as good a field to hunt in as any they have yet found? At the very time these events took place, the majority talked as much about French influence as the minority now does; they had clues, sub-plots, ocean massacres, and a hundred other equally ridiculous and unfounded tales, which circulated for a day. I have mentioned these things not with an intent to wound the feelings of any man living, but with a view of trying to persuade those who talk so much about French influence, to look at both sides of the question about foreign influence; and if they will, I hope we shall never hear of it again in this House. Mr. Genet, when he was Minister of France, began to intrigue, for which he was dismissed. Mr. Liston, when he was Minister of England, began the same work, for which he was not dismissed. If the Republicans had then been in power, and Liston a French Minister, could not a strict examination of the documents have placed it as easily as many other acts have been to French influence? While all these things were doing, and many others quite as strange, the gentlemen call themselves the followers of General WASHINGTON. If they be truly his followers, they ought to adhere to his principles, and attend to his last advice. Every act of his went to perpetuate the Union and to attach the States to each other. I fear the sentiments contained in his farewell address to the nation are getting out of fashion with those who claim to be his exclusive followers; or why do we hear within these walls, the foundation of which he laid for union, union, union; disunion spoken of, "peaceably if we can, forcibly if we must;" and why listen to idle and unfounded tales about foreign influence, which can never injure us as long as we stick to the old maxim--united we stand, divided we fall? Straws show which way the wind blows! What has become of the newspaper called the Washington Federalist? The name was, I have understood, changed to the Independent American; out of that, I believe, was raised the Federal Republican--all good names; but why lose the name of Washington to a paper supported by his exclusive followers? And this is the first time to my recollection that they have adopted Republican in their calendar. I have heard that Federalism is not now the same that it was when Mr. Adams was President: we shall know more about this if ever they get into power again; be this as it may, every man has a right to change his opinion; it is a right which no Government can take from him, and when convinced that he is wrong, it is his duty to change. But I had thought, when Mr. Adams was President, we were told that he followed the plan of General Washington, and that he was then a favorite with the party who elected him, but a great change has taken place in regard to him. I always thought him an honest man, and I think so still. After Mr. Adams got out of fashion, Colonel Burr became so great a favorite with the Federal gentlemen who were then in Congress, that they voted thirty-five times for him to be President, when they must have known that not one elector who voted for him intended him for President. Afterward, Mr. Madison was a favorite; but, after the refusal of the British Government to ratify the arrangement made with Mr. Erskine, they examined the matter, and discovered he had not done right, and he got out of fashion. Then the late worthy and venerable Vice President and Colonel Monroe became favorites; Colonel Monroe got out of fashion about the time he was appointed Secretary of State; and, lastly, Mr. De Witt Clinton became a favorite. I hope he will not be injured by it, but he seems to be losing ground, as we have been told it was not his merit that induced the Federalists to support him for President, but the demerit of Mr. Madison. This does not appear to be a good reason, because they might have selected a man from their own party, who they thought had merit. But all these things may be the doings of those who, a former member of this House called ultra-Federalists; and it will be recollected that all these men became favorites, on the old doctrine of, "divide and conquer;" and it ought not to be forgotten that, when Messrs. Ellsworth and Davie returned from France, their political friends were a little shy of them; indeed, I should not be surprised if Messrs. Jay, King, Walcott, and Dexter, should not much longer be favorites. If we may judge from the public prints, Commodore Rodgers is no longer one, though he, like the others, is understood to be a Federalist; but these men will never say, "peaceably if we can, forcibly if we must." I would really thank any gentleman to tell me what is now meant by the party name, Federalist. It is a fact on record, that General Washington did not approve of self-created societies, and I have understood that some of the people who claim to be his exclusive followers, have their self-created Washington Benevolent Societies, wherever they can establish them, and that they are political societies, and they were intended to oppose some other society; perhaps the Tammany. This could not justify the proceeding. As to myself, I do not care if there was one in every three miles square in the nation, so that I am left free not to be a member. We naturalize, without hearing a complaint from any quarter, emigrants from Great Britain, of every trade and profession, merchants, lawyers, doctors, and even divines; to which may be added tradesmen and mechanics; they all go where they please, live among us, and take part in the politics of the day. If foreign influence could be introduced into the country by naturalizing, we should have more of British than of French; but naturalizing seems well enough for every body but a sailor, but do not permit him to become a citizen; he will be in the way of native sailors, who want encouragement; besides, we know that Great Britain will impress him, and we know as well, when her officers want men, they care not whether they are American or English. The native American has never complained that the naturalizing of foreigners of his trade or profession, injured him; nor has a complaint been heard from a native seaman against naturalizing foreign sailors; and we have had experience enough to know that our merchants could complain, and complain almost against their own complaint. Let their property be captured, or expected to be captured, under a new order in France or England, and more complaints will be made about it, than the impressing of a dozen citizens. The situation of the merchant, when plundered, is bad enough, but his property is not taken away without a trial of some sort before a judge learned in the law, whose duty it ought to be to decide according to law; he also employs lawyers to have justice done him. Not so with the sailor; when impressed, there is no learned judge to decide his case, or lawyer to have justice done; force is law to him, and his oppressor judge; he is put on board ships, and compelled to fight battles, in which neither he nor his country have any concern: deprived of the right to complain or petition; he is poor, friendless--Great God! can it be possible, that we shall yield the point of impressment, for the sake of carrying on a little trifling trade by hook or by crook! All agree that we ought to fight for the rights of native seamen, and all agree that some of them have been impressed; why not all, then, join, heart in hand, to maintain their rights? Is it because the British officers impress from our vessels others besides natives? This cannot lessen their just claim to the protection of their country. We have, however, been told that only ninety-three persons were impressed in one year from American vessels; if only three of them had been the sons of the gentleman (Mr. EMOTT) who gave the information, I ask, would he have been contented with the long investigation of documents, to ascertain if any of the diplomatic meanders turned towards French influence? No, sir, he would not; he would have demanded of the National Government to have his children restored to his arms; he could demand this in a way to be heard. Far different is the case with these unfortunate parents who have had their sons impressed; they are too poor and friendless to be heard; the rights of the nation may be abandoned by little and little, until none be left; exactly as you may take a cent at a time from one thousand dollars, until none be left. All must determine to protect American seamen on board American vessels, or not hereafter pretend to claim any jurisdiction over the vessels when they are out of the limits of the United States. If a single citizen should be impressed on American land, the whole nation would be in a flame; the right to protection is the same, whether on American land or an American vessel. It has been said that we do not act justly; that we encourage British seamen to run away, because we do not apprehend them and send them back, when they have run away from their vessels; they run away before our people see them, of course there is no encouragement to the running away. As to the sending them back, we are not bound to do it; and if it depended on me one should never be sent back, until the British ceased impressing and plundering our citizens, and I would agree that every man who engaged in the war on our side should have the right to be naturalized, though he fled from British naval tyranny. It is remarkable that, while we hear not a word said to justify England for impressing and plundering the people of the United States, that so much should have been said to prove that we ought not to have gone to war with her, and that we were wrong in doing so. This is the best way that could have been devised to keep her aggressions out of view; not to say a word about them, and talk a great deal about the hardships of war, and the taxes which must be imposed to carry it on, winding up all their lamentations for the state of the country, with, if it was not for the war, a little trade could be carried on. Impressment, then, is a mere trifle, compared with this trade, and it may be that Great Britain understands it so, and is willing to gratify us with this trade for kin-sake, as long as we are contented to be impressed for kin-sake. The citizens who are impressed would tell her, if telling would release them, that nations are no kin. This surely has been the most unfortunate Government from its establishment to the present time that ever existed; almost every thing that has been done is wrong: it was wrong to fix the seat of Government here; it was wrong to place this House and the houses for the offices so far from each other; it was wrong to give paper protections to American seamen; it was wrong to have a little mercy in the revenue laws; it was wrong to repeal the internal taxes; I believe that was called oppression--though I am no prophet, I venture to predict, that to lay them to carry the war on will be wrong also; to take Canada would be wrong;--indeed, it would be difficult to find any thing which has been done right, according to the modern Federal creed. How are we to get things right? Give up the chair you are in to one, the White House to another, and they will soon give you a sedition law which will put all right. The great discovery which these gentlemen have made, that so much has been wrong under every Administration, would surprise the people, were they not this moment astonished at the discovery of perpetual motion by Redheffer--two such great discoveries must add vastly to the character of the nation. The attempt to take Canada is so wicked that some of the gentlemen are quite alarmed at it. We hear of the unoffending Canadians, but not of the unoffending sailor; at one time they are the most unoffending and loyal people in the world, at another they are French, and not fit to be united in our Government. We have heard much of the same sort formerly said about the people of Louisiana, and they have become a State, without any trouble to themselves or the Union. What has become of that high Federal spirit which disdained to buy Louisiana? Where is it when Canada is mentioned? The Federalism which desired to conquer Louisiana and keep it by force of arms, is changed when Canada is the question. The outrageous conduct of Great Britain is as much worse than that of Spain, as her impressment and plundering were worse than the refusal of the right of deposit. For one, I am willing to have Canada and Florida, and have them you must before many years. The situation of Mobile is such as to compel you before very long to take possession of it. Canada and Florida would rid us of bad neighbors, and make us more happy. The committee then rose and reported the bill. The several amendments made in Committee of the Whole were agreed to by the House. Mr. FITCH again moved to strike out the 4th section, giving the President exclusively the appointment of all officers under the rank of field officers. The question was decided in the negative by yeas and nays. For the motion 34, against it 74. And the bill was then (half past six o'clock) ordered to be engrossed for a third reading, without a division. And on motion, the House adjourned until to-morrow. WEDNESDAY, January 13. _Additional Military Force._ The bill, in addition to the act passed at the last session "to raise an additional military force"--the object of which is to raise twenty regiments of men for one year, if deemed necessary by the President to the public service--was read a third time, and the question stated, "Shall the bill pass?" Mr. KENT.--Mr. Speaker, it is with great reluctance I rise to trouble the House with any remarks of mine, at a time when their patience must be so completely exhausted, by the unusual length of the debate which has already taken place upon the subject before you. The bill on your table proposes to raise an additional military force of twenty thousand men, and it has been objected to on account of its expense, and the consequent danger growing out of it to the liberties of our country. We are, sir, in a state of war; and what is evidently the course which we should pursue whilst in that situation? We should advocate and support such measures as are calculated to bring that war, justly made on our part, to a speedy, honorable, and successful conclusion. Viewing the bill on your table as a measure of that description, I shall give it my support, regardless of that additional expense which gentlemen so emphatically dwell upon. Nay, sir, it is better to expend the thirty millions of dollars (even if that sum was necessary) so repeatedly spoken of on the other side of the House as the cost of the war for two years, to accomplish our object, than to expend the same sum in five years, even if we could effect our object with equal certainty. However commendable economy may be in every other situation in life, in war it is inadmissible; it loses its character; it becomes parsimony: you might as well attempt to unite profusion and avarice as war and economy. All that the utmost prudence can require of you when in a state of war, is to make your means ample; lay your plans well; and to the judgment and the skill in these particulars only can you look for economy or for savings; for the want of an inconsiderable supply of men or money, a campaign might prove disastrous, to recover which would require an immense sacrifice of blood and treasure. The Army has been represented as dangerous to the liberties of the country. At one moment we are told that, when it shall be completed, it will be unequal to the conquest of a petty province adjoining us, and not exceeding in population the State of Maryland; the next moment we are told that it will endanger the liberties of seven millions of freemen. Arguments thus paradoxical need no refutation. Sir, I do not pretend to have any military experience, and I am willing to concede the point to those possessing it, that men enlisted for three or five years are preferable to those enlisted for one year as proposed by the bill; yet I feel confident that every object will be accomplished by this bill that is intended. It is not proposed to rely solely on an army of this description to carry on the war; you have nearly a sufficient military force authorized for five years, and you want the men to be raised by this bill only as auxiliaries, till the ranks of that army can be filled. With these observations on the bill before you, I shall proceed to make a few remarks upon what has fallen from gentlemen on the other side of the House; in doing which I shall endeavor to confine myself to what has not been noticed by others, or, if attended to, not sufficiently so. If I understood an honorable gentleman from Connecticut correctly, who addressed you the other day, (Mr. PITKIN,) he said we were contending for the employment of foreigners. We contend, sir, for nothing which, as an independent nation, we are not entitled to, and which the laws of nations do not guarantee to us. What have been the propositions heretofore made by our Government to Great Britain upon this subject? I find, by a recurrence to the correspondence of Messrs. Monroe and Pinkney with that Government, in 1806, that we made the following propositions, the most material of which were omitted yesterday (not intentionally I hope) by the gentleman from New York, (Mr. EMOTT.) Here Mr. K. read the following proposals from the public documents of 1807 and 1808. We offered-- 1. To afford no refuge or protection to British seamen. 2. To deliver them up if they took refuge among us. 3. To make laws for restoring them. 4. To aid in searching for, seizing, and restoring them. 5. To keep them in our prisons when requested. 6. To prohibit our citizens from carrying them off. 7. To prohibit their employment. 8. To make penal laws for punishing their employers. 9. To make it our duty to restore them. 10. To extend the foregoing provisions, not only to deserters, but to all seafaring people. These propositions went completely to secure to Great Britain the services of all her seafaring subjects, except such as were naturalized under our laws, which amounted to but few, indeed; thirteen hundred British seamen only having been naturalized since the commencement of our Government, and, in all probability, an equal number of our seamen have been naturalized by Great Britain during the same period. Yet, to my astonishment, have I heard it stated, during this debate, that our Government had made no serious propositions to secure to Great Britain the services of her seamen. But equitable as these propositions were, they were rejected. Notwithstanding, sir, our Government, anxious in their pursuit after peace, have gone still further; they have, through our late Chargé d'Affaires in London, (Mr. Russell,) proposed to Great Britain to exclude from our naval service, as well public as private, all her seamen, including those which may hereafter be naturalized; and notwithstanding the liberality and justice of this proposal, it, like all others, has been made without producing the desired effect. And what more, sir, could have been asked of us, required, or granted, than is contained in these offers? Nothing more, unless, indeed, they had asked for our independence, and, yielding to the requisition, we had granted it. When an American vessel is at sea, it is amenable to no laws but those of its own country and the laws of nations; and where, in either of these, will the advocates for impressment find their justification? Sir, had not the practice of impressment been treated as a casual, a trivial circumstance, during this debate, I should not have presumed to trouble the House with my desultory remarks; and my principal object in addressing the House, was to ask their attention to a document which appears to have been overlooked, and which, if necessary, will place the abomination of that practice in colors too strong to be mistaken. Here Mr. K. read the following extract of a letter from the Secretary of State to Mr. Monroe, dated January 4th, 1804-- "The whole number of applications made by impressed seamen to our Consul in London, between the month of June, 1797, and September, 1804, were two thousand and fifty-nine. Of this number, one hundred and two seamen only were detained as British subjects, which is less than one-twentieth of the whole number impressed. Eleven hundred and forty-two were discharged, or ordered to be so, and eight hundred and five were detained for further proof, with the strongest presumption that the greater part, if not the whole, were Americans, or other aliens, whose proof of citizenship had been lost or destroyed." It is, then, evident, from this document, that, for every British seamen obtained by this violent proceeding, a number of Americans, or other aliens, with whom Great Britain has no right to meddle, not less than twenty for one have been the victims to it. Sir, have we become so lost to the real independence and sovereignty of the country, that we are prepared to yield to this degrading, debasing, and humiliating badge of vassalage? The Romans, of old, had a practice of making the governors of those countries they conquered pass annually beneath their yoke, as a mark of submission; but we, doomed to humiliation far greater, are made to pass daily, nay, hourly, beneath one much more galling. Some gentlemen object to the propositions made by Mr. Russell, and assert that he was not authorized. They should recollect that Mr. Russell's letter, containing this final offer to the British Government, was communicated to this House by the President, and, had it not met with his concurrence, it is presumable he would, in his communication, have expressed his disapprobation towards it. Nay, a similar offer has been made by the Secretary of State to Admiral Warren. I know not whether the feelings of shame or indignation predominate in my breast, when I see gentlemen constantly laboring to place their own Government in the wrong; and, in contradiction to the official records of this House, insist that we are contending for the employment of foreigners. The language of our Government upon that subject, is this, sir: that, if the oppressed and unfortunate inhabitants of Europe, escaping from their tyranny and panting after their long-lost liberty, seek a refuge in our happy country, upon their compliance with our naturalization laws, we are willing to extend to them those blessings we enjoy; but should they become dissatisfied with the advantages which the interior of the country affords them, and they think proper to depart from our shores, we say to them, we will not risk our peace for their protection beyond our territorial limits. So far from our contest with Great Britain being for the employment of her subjects, it is a contest for shielding a large and valuable portion of our fellow-citizens from British thraldom, under the lash of which they have too long labored; and who will dare discriminate in that protection which is equally due to all, that is due to the meanest individual in the community, and withhold it from a class of men who have done honor to the American character, and covered themselves with glory? Mr. RANDOLPH rose, apparently laboring under the effects of a serious indisposition, and addressed the Chair. I rise (said he) with a heart saddened by the disgrace of our common country, and sickened by the way in which the business of the State has been managed. Of the temper and virulence which have manifested themselves in this debate, I shall not have any occasion to divest myself in the course of the very few remarks which I fear I shall be enabled to make, because towards them I have no purpose. Indeed, when I look around me, I am exceedingly sad; and I know not now if it will be in my power to go on. I had intended, if time and health permitted, to address to this Assembly some few observations, confined principally to the change which has taken place in the relations of our country since the declaration of war, not only respecting that belligerent with whom we are engaged in hostilities, but her adversary also. But the course that this debate has taken imposes upon me a painful duty, which I trust God will give me strength to discharge: the duty of reviewing past transactions in the Government, which, from my heart, I would, instead of bringing them up on the present occasion, gladly discharge from my memory. But self-defence is the first law of nature. The merest reptile, the worm itself, will turn when trod upon. Nor is the force of the blow lessened by its being dealt, as in the present case, by the hand--I will not say under the garb and circumstances--of Friendship. It was my lot, sir, and I may assuredly say my misfortune, to take some little share in those transactions which brought about a civil revolution in the Government of this country. I hope that I am understood. I feel I shall be understood, when I speak of this, by all wise and good men; and it is with them only that I wish to hold intercourse--to commune. It is of their good opinion alone that I am ambitious, if indeed ambition dwell any where in my heart. Let me endeavor to recall to recollection the state of things about the period when I had the unhappiness to dedicate myself to political life. Through the opposition, bold but just, which was made by myself, and those associated with me, to the measures of that Administration, an entire change was effected in the control of the Government. One Administration was ejected from power, and another took its place. Is it necessary for me to descant upon the topics of difference which then separated the two great parties in the Government? Is it necessary for me at this time of day to make a declaration of the principles of the Republican party? Is it possible that such a declaration could be deemed orthodox when proceeding from lips so unholy as those of an excommunicant from that church? It is not necessary. Those principles are on record; they are engraved upon it indelibly by the press, and will live as long as the art of printing is suffered to exist. It is not for any man at this day to undertake to change them. It is not for any man who then professed them, by any guise or circumlocution, to conceal apostacy from them, for they are there--there in the book. What are they? They have been delivered to you by my honorable colleague--what are they? Love of peace, hatred of offensive war; jealousy of the State Governments towards the General Government, and of the influence of the Executive Government over the co-ordinate branches of that Government; a dread of standing armies; a loathing of public debt, taxes, and excises; tenderness for the liberty of the citizen; jealousy, Argus-eyed jealousy, of the patronage of the President. From these principles what desertions have we not witnessed? Will you have a list of them? I shall not undertake it. Principle does not consist in names. Federalism is a real thing--not a spectre, a shadow, a phantom. It is a living addition to the power of the General Government, in preference to the power of the States; partiality for the Executive power, in distinction to that of the co-ordinate Departments of the Government; the support of great military and naval force, and of an "energetic" administration of the Government. That is what is called Federalism. Yes, an energetic Administration, not in its real, but technical sense; for it has a sense as technical as any in our laws. _That_ is Federalism. And, when I am opposing the course which looks toward the rearing up of great Military and Naval Establishments, of an extent not only incommensurate with the necessity but the ability of my country, I care not with whom I vote; I will be true to my principles. Let any man lay his finger upon a vote in which, since I have had the honor (if, indeed, it be an honor) of a seat in this House, I have departed from those principles, and I will consent that, _quoad hoc_, I am a Federalist. But it will be in vain to search for such a vote. So strenuous, sir, had been the contest--so hot the spirit of rivalship between the two contending parties--that, after the Revolution of 1801, a curious spectacle was presented to this nation and to the world--a spectacle which, I am bold to say, never did before make its appearance in any Government, and never will appear again. It was this: that, as if the character that each party had borne when in collision with one another was indelible, the two parties, after power was transferred from one to the other, did actually maintain the same character which they had derived from impressions received during their late conflict: and the admiring world saw with astonishment the case of an opposition minority attempting to force upon a reluctant Administration patronage and power, which that Administration put by, and sternly refused to accept. Yes, sir; for a time so completely had the Republicans been imbued with the principles which they professed whilst in a minority, that, after becoming the majority, the Federalists pressed on their old adversaries power and patronage, to which they absolutely opposed themselves, repelling, for a season, every project of the kind. Is it necessary for me to allude to the reduction of the Army--to say by whom it was made? Sir, the proposition for it was originally made by the personage now addressing you; it came from what was then considered the Governmental side of the House. And by whom was it opposed? By gentlemen who had so long fought under the banners of a Government of "energy," that they were not content to submit to the diminution of its patronage or its power, even in the hands of their political opponents. I speak of facts. Such a case will never occur again. Nay, indeed, in a little time, the sweets of power had their effect on one side of the House, as the frowns of adversity had upon the other; and after awhile, the court and country parties as easily changed sides as right and left do when a man turns upon his heel. Yes, sir, the tone of this House was soon changed. We succeeded, however, in the reduction of the Army; but I will trust to the recollection of gentlemen, upon all sides of the House, by what instrumentality this change was effected. The Commander of that Army was retained in his position. I have not leisure, health, or strength, to go into the details; gentlemen will remember them. Meanwhile, peace with this country was negotiated in France by the commissioners sent by Mr. Adams, and was followed up very soon afterwards by the short respite that the truce of Amiens gave to European combatants, wearied rather than satiated with slaughter. These events placed this country in the happiest condition. Of the proceeds of the direct and internal taxes voted by the predecessors of the administration of Mr. Jefferson, one moiety at least came into the Treasury after their dismissal from office. But these proceeds were not necessary to give an overflow of money into the Treasury, which we never ceased to have until we departed from those principles of government and that policy which brought us into power. We sailed on for some time in the full tide of successful experiment, unobstructed by squalls or adverse gales, if we except only the Yazoo breeze. That question was, if I forget not, the first cause of a breach between those persons who had a direct lead in the Government of the country. There were men who did not hesitate, in opposition to all the heads of your Departments, to throw themselves into the breach at that time attempted in the constitution of the country, to defend it, and to defend it with success. It appears, from some documents that have lately been laid upon our table, that errors of that day have been perceived, and that tender consciences which at that time revolted, are now entirely reconciled to the compromise which was then stamped with the reprobation of almost every honest man from Georgia to Virginia. There were considerations of personal feeling which gave to other parts of the Union, and to certain individuals therein, a bias on that subject; and I should be extremely sorry to be considered as passing any thing like general censure upon the advocates of that measure in or out of this House. I refer only, of course, to those who were not parties concerned in the fraud. At that time, sir, all was prosperity and joy. At that time were accumulated in the Treasury those surpluses which, in one year, nearly equalled the sum for which, in the present year, the revenue is deficient, notwithstanding the loan of last year, and to make up which deficiency the head of the Treasury has been able to devise no other means than a resort to new loans. Yes, sir, there were then those surpluses in the Treasury, the ghosts of which lingered along its vaults for a time after their corporeal bodies departed, and were then heard of no more. But to proceed. The expenditures of the Government, during the first four years of the Jefferson Administration, exclusive of payments on account of the public debt, averaged only eight millions of dollars a year. In the four last years of the Jefferson Administration, those expenditures were very greatly increased, amounting in the year 1808, (the last of the four,) without any increase of Army and Navy expenditures, to upwards of sixteen millions of dollars--rivalling the expenditures of any one year of Mr. Adams's war, and amounting to one-half as much as was expended by the Father of his Country in his eight years of the Presidency, during which he was called upon to establish public credit, to maintain a bloody Indian war, and to lay the foundation of that character of integrity which the Government has so long sustained abroad, notwithstanding the misconduct of its rulers. Yes, sir, it is a curious but notorious fact, that in 1808 and 1809--and I speak of 1809, for, although the present incumbent came into office on the 3d of March of that year, expenses were incurred and voted in his predecessor's time--the expenditures of the Government outraged all belief when compared with the objects on which they were lavished. And here, Mr. Chairman, let me put to you, and to the gentleman on my right, if it be within the compass of any man's powers to detract more from the merit of an administration of the Government of the United States in managing at least one branch of the revenue than has been done by that honorable gentleman? What has he said? I will not repeat his words; to do so would be odious, invidious; but I well know if what he did say had come from the other side of the House, it would have been set down to the rancor of party spirit; to personal spleen; or to want of respect for the White house, or the Red house, or some other house. What has become of that vast amount of money? No man knows; and to the best of my knowledge and belief, so help me God, no man will ever know. I find, as I anticipated, a difficulty in dragging along my miserable body, and my feeble mind, in this discussion; a difficulty not less, perhaps, than that of dragging along with me the attention of members of this House. I ask its patience, its pardon, and its pity. But to continue. In this prosperous state of our country, the war in Europe was renewed, or about to be renewed. The Government of the United States would naturally, from the situation of affairs in that quarter of the world, experience a temporary diminution in its revenue, which it need not feel or regard, because it had been enabled to make that noble provision for a sinking fund, for lessening the national debt, for paying off the mortgages on the estate of every man in the country and of those who are unborn. It had made that noble provision, which was attempted to be diverted to the necessities created by the policy of the last four years of Jefferson's Administration, and the actual diversion of which, I believe, was the first act of this Administration. It had made that appropriation of eight millions of dollars for a sinking fund, not to be touched for any other purpose, and which, at the time of the appropriation, no man dared to believe would be gambled away. The war in Europe brought to this country, among other birds of passage, a ravenous flock of neutralized carriers, which interposed the flag of neutrality, not only between the property, but even between the persons of the two belligerent powers; and it was their clamor principally, aided by the representations of those of our merchants who saw and wished to participate in the gains of such a commerce, that the first step was taken in that policy of restriction, which it was then foreseen would lead to the disastrous condition in which we now find ourselves. Yes, it was then foreseen and foretold. What was then prophesied is now history. It is so. "You," said the prophet, "are prospering beyond all human example. You, favorites of Almighty God, while all the rest of the world are scourged, and ravaged, and desolated by war, are about to enter into a policy called _preventive_ of war; a policy which comes into this House in the garb of peace, but which must end in war." And in war it _has_ ended. Yes, sir, we have been tortured, fretted, goaded, until at last, like some poor man driven from his family by discord at home, who says to himself, "any thing, even exile, is better than this," we have said that we will take war; we will take _any thing_ for a change. And when war came, what said the people? _They_ said, "any thing for a change!" At that time circumstances occurred, and I hope the House will pardon me for alluding to them. It is absolutely necessary that I should do so. They have been spoken of by others before me; they were at the time, and have been since, detailed in the most solemn manner on the floor of this body. A denial of them has been challenged and never received. At that time, I repeat, circumstances occurred which made it my duty to oppose the projects of the Executive Government of this country in its relations with foreign powers. At that time nothing that the _Spanish_ Government could do, not even the invasion of our own territory, not even the capture and carrying off, not from our decks, but our soil, a portion of our citizens, could rouse this House to a spirit which would, in my judgment, have comported not only with its honor, but was absolutely indispensable to its dignity. We were wanting in the assertion of the rights of our own country over its soil and jurisdiction, by which assertion, then, we might have averted the calamities which have since befallen us; but a project for that purpose, recommended by the committee to whom that subject was referred, did not meet the approbation of the House. And from that day and date, the black cloud has thickened over us; has become more and more dense. From that day and date, have we departed from those counsels--in my humble judgment, at least--from those principles, adherence to which had induced the people of the United States to clothe us with their power and confidence. What have we done since? From that day, with a short interruption, the policy of this Government has actually subserved, as far as it could, the purposes of _France_. I speak of facts; of facts susceptible of proof, which may be felt, seen, touched, heard, and understood by all except those too indolent to examine them, or too ignorant for the light of truth to have any effect upon their understandings. I say, sir, that the policy of this Government has, from that time, subserved the purposes of France. And how do I prove it? Why, sir, by way of meeting the French decrees, which prohibit to us all intercourse with Great Britain, we cut off the intercourse between us and the whole world. We virtually held out to our great commercial cities--to Boston, New York, Philadelphia, Baltimore, and Charleston--the same language as Bonaparte had held to his own cities: "I know that you are suffering, and unhappy; that the grass is growing in your streets; that the ships at your wharves are rotting, until they are fit only for fuel; that your trade is dwindling only to nothing; but what is all that to my continental system? What are a few seaport towns--enterprising, wealthy, and prosperous, as indeed they are--what are they, compared to my continental system?" And, sir, what was our "restrictive" system? Similar in point of effect--certainly cotemporaneous in point of time--to Bonaparte's "continental system." Sir, it is a matter susceptible of demonstration, if I possessed the physical power to go through with it, that the system recommended by the then President of the United States, of laying an embargo on all ships and vessels in our ports, for the purpose of "keeping in safety these essential resources," took place in consequence of a communication from our Minister in Paris to this Government, transmitting certain correspondence of his with the French Government. And although in the message to both Houses of Congress, recommending the measure, the President does use the term "belligerent powers," I do attest the fact, and I call upon other gentlemen, who know it, to attest it also, that, while the message purposely referred to both "belligerents," not one scrip of manuscript relating to the other "belligerent" accompanied that message; nor was there any thing contained in that message relating to that "belligerent," but a scrap from an English paper, about the size of a square of its columns, containing some speculations of a London editor; and I say that there did not exist in this House, nor in this nation--if there did, let the evidence be produced--any knowledge of the existence of the orders in council, which have been put forward as justifying the embargo. If their existence had been known at the time, would the President in his message recommending an embargo have failed to notice the fact? Would he not have used it as one of the strongest inducements to the adoption of this system? Would those "orders" not have been published in the National Intelligencer, which is considered--and certainly not without cause, in view of certain things which we have lately seen in it--to be the Court paper? Produce the National Intelligencer of that date; there is not one syllable to be found in it concerning the Orders in Council. No, sir, in his message on the occasion referred to, the President did not produce any _acts_ of the "belligerents" referred to, but only the correspondence between General Armstrong, our Minister at Paris, and that Government, on the subject of the construction of one of its first decrees. It was in consequence of the more recent decrees of France, and not of the British Orders in Council, that the embargo was recommended and laid. And yet, in the discussion which came off on that measure, it was represented as a weapon against England, which would be more efficient than any war, and must bring her to our feet: it would give effect to the object which Bonaparte had in view, of destroying her by consumption, by cutting her off from the commerce of the world. Although I state these facts, I know that it may be proven--and I am sorry that it can--by reference to the journals of this House, and by a report, too, of an honorable and respectable committee of this House, that the embargo was designed to obviate the effects of the Orders in Council. But, sir, it is indisputably true, that there was no mention in the embargo message of those Orders in Council--no allusion to them in debate upon it--no knowledge of them at the time that the embargo law was passed, that can be proven by any document whatsoever entitled to the least respect; and I will even go so far as to allow as evidence the authority of any newspaper. The members of that committee had heard so much of the Orders in Council, and the effect that it was pretended that the embargo would have upon them, that in their report, speaking of them, they absolutely transposed cause and effect. It is unfortunate that it should be so; but it is nevertheless true. Events subsequent to the period to which I have now brought myself have been detailed in this debate in a manner so clear, so lucid, so convincing, by two honorable gentlemen from New York, that there is no need of my repeating the narrative: but I must be permitted to say that the statement made yesterday by a gentleman from New York, (Mr. EMOTT,) will be refuted when Euclid shall come to be considered a shallow sophist, and not before. My honorable friend from the same State, who spoke a few days ago, called upon gentlemen to handle that part of the subject--the revocation of the Berlin and Milan decrees, and the inveiglement thereby of this country into a war with England--in a manner more able than, he was pleased to say, he himself had done it. The attempt to do this would, indeed, be to gild refined gold, to paint the lily, to add to the perfume of the violet--in all cases a most ridiculous and wasteful excess. And yet, sir, the situation in which I unhappily stand, and in which it was my lot to stand at the conclusion of the last session of Congress, compels me to say a word on this subject. You will remember, sir, that it was my misfortune, during the first session of this Congress, to oppose the attempt to impress upon this House and the nation certain most preposterous, absurd, and false propositions; for the temerity of which effort I came under the censure--implied, at least, if not to say direct--of this honorable body. The contrary propositions, which I undertook to maintain, were, first, that the Berlin and Milan decrees were not repealed on the first of November, 1810, and that the only evidence of any such repeal, up to that date, was _the President's Proclamation_ of the second of that month; and secondly, that the British Orders in Council did, in point of fact, establish no serious insurmountable obstacle to negotiation between that Government and the United States. Why, sir, I shall not here go into any argument on this point; if I had the ability, I have not the will; and, if I had the will, I have not the ability. Nor can it be necessary, when the Emperor of France himself comes into court, and cannot reject his own authority, as borne in his own laws. Yes, sir, he did come forth, and, in his antedated decree of the 28th of April, 1811--though it unquestionably ought to bear date full twelve months later--does, in the most offensive of all possible ways, establish the fact, not only that the Berlin and Milan decrees were not repealed (as all the world knew except the President of the United States) on the first of November, 1810, but that they were in his mind when he issued his decree, dated 28th April, 1811. They were repealed, finally, in consequence--of what? Of your doing that which for years he had been attempting, by menace and blandishment, to induce you to do--that is to say, embark in war with England, taking sides with France, "causing," as the phrase was, "our flag to be respected:" And this, too, after your having posted up in the ledger of this House that war with one of the "belligerents" was equivalent to submission to the other! My other proposition was, that the Orders in Council constituted no insurmountable obstacle to negotiation between this country and Great Britain. And what was the fact in regard to them? Why, that almost at the time that this position was taken on this floor--a few weeks only thereafter--the Orders in Council were repealed. I put it to you, sir, and to the great mass of the people of this country--to the honest, laborious, unsuspecting, kind-hearted, confiding, generous, and just people--had the fact been known that the French decrees were _not_ repealed, and that the Orders in Council _were_ repealed, whether any man, in any station, would have had the confidence to propose a declaration of war against England, taking part against her, and siding with France in the conflict in which those nations are engaged? And, whilst I am upon this subject, permit me to say, suppose the proposition which was repeatedly made--in more than one instance by the person who is now addressing you, and supported with the greatest ability by gentlemen on the other side of the House--to postpone our declaration of war against Great Britain until the autumn, when we might be in some state of preparation and readiness for it--had succeeded, what would have been the consequence? At this time we should have been at peace; we should have been lying secure in that snug safe haven of neutrality, in which the good sense of the greatest and best men of this country have always attempted to moor the public ship. _Now_, where are we? And shall this war be called a popular war; a war of the people; a war called for by the public voice, into which this country has been plunged, not more by the agency of the friends of Government than of its enemies, in the hope of the latter that this Administration would sink and founder in it, and they rise to power thereupon? Is it possible that that can be deemed a war of the people, a popular war, which has enabled a gentleman known to be of the most respectable connections, and possessed, I believe, of considerable talent--but who, put in competition with the veteran politician now at the helm of Government, is but a boy in politics--a person whose pretensions are so extremely inferior, to rival the present Chief Magistrate in the confidence of the people, and for a time, as you know, make him tremble for his re-election? It is, however, some consolation to reflect that, in all free Governments, the public voice will sooner or later be heard upon all their measures, and in condemnation of those which the opinion of that public detests and execrates. This is a great law of politics; it is to the political what gravitation is to the physical world; it cannot be counteracted. Statesmen know it, feel it; they do not reason to it, but from it; they never lose sight of it, but are guided by it in all their measures. And those of us who live to see the next Congress, will live to see the effects of that law in this House. Sir, we have passed so many laws, we have had so many objects for enticing the belligerents on the one hand and coercing them on the other, and enticing and coercing them together, that I feel some little difficulty, in the present state of my brain, in referring to them by title or date; but it is the law passed on this subject, in consequence of which the celebrated letter of the 1st of August of the Duc de Cadore was written, to which I desire most particularly to refer. If, after the proclamation of the President of the United States of the 1st of November thereafter, issued in consequence of that letter, revoking so much of our non-intercourse law as related to France, an unbroken warfare being kept up by France on our commerce--a fact as notorious as the existence of any fact in nature--was it not good cause for reinstating the law in relation to France, and putting her on her ancient ground? Then I would be glad to know, for one, whether our continuing at war with England was any better cause for keeping up the interdiction in relation to her, after she had revoked her Orders in Council? In other words, it being admitted by gentlemen on one side, as it has been contended by gentlemen on the other, that the revocation of the Orders in Council by Great Britain was such a one as did satisfy the terms of the non-intercourse act, what was the reason that the proclamation required by our law in such case did not issue? Why, sir, the state of war between the United States and Great Britain being offensive on our part--being of our own making--was held to be a cause why we cannot execute our law as relates to her. Now, whilst the continued war upon us by France, by seizures of our merchant vessels and their cargoes, is not considered an obstacle to its execution in regard to her, is it not as clear as the noon-day sun, that if the making of war by France on the United States did not constitute any good cause for withholding the revocation as to her, when she professed to have repealed her Berlin and Milan decrees, there was no reason why it should not have been extended to Great Britain also, when she actually repealed her Orders in Council? I am extremely at a loss to say whether my judgment, my memory, my imagination, or my command of words, fit me for the expression of the few scattered ideas I have on this subject; I fear that they may fail me. But I believe it will be conceded, on all hands, that if, after the revocation of the British Orders in Council, the President of the United States had, as he honorably might have done, made that repeal the basis of negotiation with Great Britain, there is not a man in this country--certainly there is none among his admirers and adherents--who would not have hailed him as the restorer of the peace and prosperity of the country, which had been so idly (I had almost said so wickedly) disturbed. But, regardless of every consequence, we went into war with England as an inconsiderate couple go into matrimony, without considering whether they have the means of sustaining their own existence, much less that of any unfortunate progeny that should happen to be born of them. The sacrifice was made. The blood of Christians enjoying the privileges of jury trial, of the writ of _habeas corpus_, of the freedom of conscience, of the blessings of civil liberty, citizens of the last Republic that ambition has left upon the face of a desolate earth--the blood of such a people was poured out as an atonement to the Moloch of France. The Juggernaut of India is said to smile when it sees the blood flow from the human sacrifice which its worship exacts; the Emperor of France might now smile upon us. But no, sir, our miserable offering is spurned. The French monarch turns his nose and his eyes another way. He snuffs on the plains of Moscow a thousand hecatombs, waiting to be sacrificed on the shrine of his ambition; and the city of the Czars, the largest in the world, is to be at once the altar and the fire of sacrifice to his miserable ambition. And what injury has the Emperor of Russia done to him? For what was he contending? For national existence; for a bare existence; for himself and the people who are subject to his sway. And what, sir, are you doing? Virtually fighting the battles of his foes; surrendering yourself to the views of his adversary, without a plea--without any thing to justify your becoming the victims of his blasting ambition. Yes, sir, after having for years attempted to drive us by menace into war with England, when he has seen us fairly embarked in it, and the champions of human rights bleeding in his cause, the Ruler of France has turned with contempt from your reclamations; he has left your Minister, who was charged with those reclamations, to follow him in his Russian campaign, to whip up his jaded Pegasus, and, travelling at his heels, to overtake him if he can.[34] For these injuries and insults what atonement has been made? What satisfaction has been received for your plundered property? And what is the relation in which you stand to France? At this moment, when it is well known that it would not require one additional man in the army or navy to make good, in the eye of nations, your character as an independent and high-spirited people, you are prostrate at the feet of your's and the world's undoer. Is there any thing yet wanting to fill up the full measure of injustice you have sustained? Gentlemen on all sides are obliged to admit that the provocation which we have received from France is ample; that the cup of it is overflowing. And yet, what is our situation in relation to that destroyer of mankind--him who, devising death to all that live, sits like a cormorant on the tree of life; who cannot be glutted, nor tired, with human carnage; the impersonation of death; himself an incarnate death? All this, I say, does prove--and if it does not I call on gentlemen to disprove the fact--that there is a difference in the standard by which we measure French aggressions and the aggressions of any other people under the sun. When Spain was the ally of France she was--what? She was secure from our indignation. There was not a murderer, a barbarian, in all our Western wilderness that was not safe under the Spanish cloak. For why? Because the King of Spain, such as he was--for he wore only the semblance of a crown--was in alliance with France; and he must not be touched. But what has _Revolutionary_ Spain done? What offence has she committed against France? That she is not only helpless, destitute of resources, unable to return a blow, but, above all, is coveted by France, are considerations which cannot justify, on the part of France, conduct towards her more infamous than that of the English at Copenhagen--conduct cowardly as it is unprincipled. But, sir, I forewarn gentlemen of the Southern country--I do beseech them, with a sincerity which no man can have a right to question--to beware how they transfer the theatre of war from the rocks and snows of Canada to the sandhills, the rice-fields, the tobacco plantations of the Southern States. For them to think of voluntarily consenting to make that region the theatre of the war, would compel me to believe that they are on the verge of that madness which precedes the destruction of all doomed by Heaven to perish. Sir, I have just touched, with trembling and faltering hand, some of the preliminary observations which I had intended, at some time or other, to make, into which I have now been prematurely forced to enter, not more unexpectedly than unavoidably, by the strange turn which this debate has taken. There are two other points--for, in respect to the Orders of Council, I shall not say a word about them--upon which I am very anxious to offer myself to your attention: the one the celebrated point of impressment, which, though it has been very ably handled, is not yet exhausted: the other the Indian war on our Western border. And I also wish to say something on the subject of negotiation. In the midst of a war with one of the greatest powers of Europe, why should the gleam of the tomahawk and the scalping-knife, the cries of massacred women and children reaching our ears--why should these fright us from our propriety? Why, we are told the Indians of the West have been stirred up to war with us by British agents. But what is the fact? That we have no Indian war, but a war of our own seeking, as I have already, in the course of this session, read to you certain proofs; and I will now give you another. It is this: It is agreed on all hands--no man has attempted to dispute it--that, in the affair of the battle of Tippecanoe, the commander and the officers distinguished themselves by the greatest gallantry. How has it happened, then, that while we have been freely voting medals to those gallant officers of our navy who have distinguished themselves on the ocean--and I hope we shall vote them something more substantial--not a whisper has been heard in relation to those who have been engaged in this expedition against the Indians? The subject has not been even inquired into. Do we know, at this moment, as a Legislature, the causes of that disastrous business--I call it so from its consequences--or by whose authority this war was made? Or, is it come to this: that Governors of our Territories are to consider themselves as so many Hastings and Wellesleys of our country, and that, while they do not involve us in war with Christians like themselves, they may go to any extent in exterminating the Red Barbarians here as in the East Indies Governors and Proconsuls of the British Government do there in regard to uncivilized powers of that quarter of the globe? Is it discovered that our Territorial Governors may at pleasure invade the territory of other nations--for, inconsiderable and contemptible though they be, the Indian tribes _are_ nations--in like manner that the British authorities make war upon those nations of the East? Yes, sir, not only is this a war of our own seeking--not only we had it in our power to keep the peace--but in the country which was the scene of the battle, and in the adjacent country, it was the most popular war ever waged. The frontier people of this country have been in the habit of driving the heathen before them; and to them the chase of the deer, the elk, and the antelope, is not so grateful as that of the red men they hunt. I believe that it is the cause of serious regret to many of the people of the West that there is now no longer any motive to drive them from their lands. As to the Red Men, the Big-Knives have, without any foreign prompting or instigation, driven them off from a country more extensive than that over which the Emperor of France wields his sceptre. So I put aside this item of Indian war altogether as a matter of account in the list of our grievances against the British Government. There is not a shadow of foundation for believing that these Indians were or could have been instigated to take up the hatchet against us until hostile arms had been taken up against them. When driven to the wall they must fight or die--the last alternative left to them--for which nobody can blame them. It was, sir, a saying of one of the best men who ever wrote, in correspondence with a friend, that he had no time to write a shorter letter; and I can truly say that I have not _time_ to deliver a shorter speech. I know that this question will be taken to-day, for I have been so admonished; and my own very severe and sudden indisposition, which I am almost ashamed to name, will compel me to detain your attention much longer than under other circumstances would have been the case. A word, now, on the subject of impressment. Our foreign trade had grown beyond the capacity of either our tonnage or seamen to manage. Our mercantile marine was an infant Hercules; but it was overloaded beyond its strength: the crop was too abundant to be gathered by our hands alone. The consequence was, and a natural one too, that not only the capitalists flocked into our country from abroad to share in our growing commerce, but the policy also of our Government was adapted to it, and a law was passed to enable us to avail ourselves of the services of British seamen and seamen of other countries. And, in doing this, we availed ourselves of the pretext--which, as long as the countries to which they belonged winked at it, was fair for us to use--of taking these British seamen for Americans. It was in 1796 that commenced the act, to which reference has been made, and that system of "protections," as they were called, the very mention of which, at this day, causes a burst of honest indignation in the breast of citizens whose situation enables them to ascertain their true character. If these "protections," so termed, have not been forged all over Europe, it is only for the reason that the notes of a certain bank of which I have heard have not been forged, viz: that, the bank being broke, its notes were so worthless that people would not even steal them. The "protections" are attainable by everybody; by men of all ages, countries, and descriptions. They are a mere farce. The issuing of them has gone far to disgrace the character of the country, and has brought into question and jeopardy the rights of real American citizens. This question of impressment, delicate as it has been said to be--difficult as in one view it certainly is--is, of all others, in my judgment, the most compact. With the gentleman from New York, I will say that the tide of emigration has brought to the shores of our country many most valuable characters; some of them persons with whom I have the honor of being in habits, not only of intimacy, but friendship. I believe there does not exist one man of this description, who comes _bona fide_ to this country to settle himself and children here, that would require you to go to war on his account. And, sir, I believe that the belligerent position itself in which you now find yourself will relieve you in a great degree of this evil, for many seamen who have so long, by virtue of these "protections," passed themselves off for American, will find it to be very convenient to be Portuguese or Swedish seamen, or seamen of some other State than the United States--some State that is not at war with England. Sir, there is a wide difference between the character of American seamen and seamen of every other country on earth. The American seaman has a home on the land, a domicil, a wife and children, to whom he is attached, to whom he is in the habit of returning after his voyages; with whom he spends, sometimes, a long vacation from the toils of maritime life. It is not so with the seamen of other countries. For the protection of men of the first description, I am disposed, if necessary, to use the force of the country, but for no other. I know, indeed, that some gentlemen who have spoken much on the subject of the principle of impressment, will tell you that the right to take from a neutral vessel one seaman, if carried to its extent, involves a right to take any, or all seamen. Why, sir, in like manner, it might be argued that the taking illegally of one vessel at sea involves the right to take every vessel. And yet, sir, who ever heard of two nations _going to war_ about a single case of capture, though admitted not to be justified by the laws? Such a case never did and never will occur. Of one thing we are certain: it rests upon no doubtful ground: that Great Britain, rather than surrender the right of impressing her own seamen, will nail her colors to the mast, and go down with them. And she is right, because, when she does surrender it, she is Samson shorn of his strength: the sinews of her power are cut. I say this openly in the House of Representatives; and I am not communicating to the enemy a secret of any value, because she has herself told us that she can never surrender it. She has told us so, not when she stood in the relation of an enemy toward us, but in the friendly intercourse of the British Ministry with our late Commissioners at London. Turn to the book: I wish the honorable gentleman, if he has it, would for a moment let me have the use of it. You are told in that book that every effort was made by the American Commissioners to effect a relaxation of this right; that the British Ministry evinced the sincerest desire to give satisfaction to them on this point: _but_ what? The Admiralty was consulted; they waked up out of their slumbers the Civilians at Doctors' Commons to deliberate upon it; and they came to the conclusion that the Government of Great Britain could not give up that right. Messrs. Monroe and Pinkney, the Commissioners of the United States to negotiate a treaty with the Government of Great Britain, in their correspondence with their own Government, give this fact to excuse themselves for failing to accomplish their object, and to prove that every thing had been done that could be on their part, and every thing conceded on the other side that the most friendly disposition could warrant--and here I do not speak of masked friendship, but of real friendship. Although every thing possible had been done, this right of impressment of her own seamen was a _sine qua non_ on the part of Great Britain--one which would not, could not, must not, be surrendered. And, sir, if this question of the right of impressment was one on which we were to go to war with Great Britain, we ought to have gone to war _then_; because we were then told by the highest authority in that Government that this was a point which never would be given up. I find, sir, that I cannot trust my broken voice to _read_ the book, now that it is in my hand, but must rely upon my recollection for facts. Now, this question lies as I have said, in a very small compass. The right of Great Britain to take her own seamen from your merchant vessels, (if it be a right,) is one which she has exercised ever since you were a People, wherever occasions for its exercise have occurred. Will you not only go to war, but wage a _bellum ad internecinum_ for it? Will you wage an endless war of extermination for this right, which, you have known for two and twenty years of your national existence, she will not relinquish? A gentleman from Tennessee, of whose capacity few men have more respectful opinion than myself, has quoted the diplomatic correspondence as far back as 1792, to show what General WASHINGTON's opinions were on this question of impressment, and this opinion of the Father of his Country is now held up to the people of the United States for the purpose of enlisting their prejudices in the conviction that, by involving the country in warfare, we are at this moment treading in the footsteps of that great man, and acting upon his principles. Nothing can be more untrue. To say that the Treaty of Louisiana was negotiated two years after the letter of instruction quoted from the Washington Administration, and that that treaty contained no provisions on this point, is a reply in full on this course of argument. But what does the correspondence referred to prove? What every treaty, what every negotiation, has proven: that England would not give up this point, although she made offers for guarding against abuse--offers more favorable to us than ours to her. And yet the Administration of this Government have had the hardihood or the folly to plunge the nation into a war for it--for a point on which General Washington, Mr. Adams, and Mr. Jefferson, men differing from each other as may be in every aspect, had been content to negotiate, rather than go to war for its assertion. What was the offer made to our Government by the British Ministry? If I do not forget, their offer was that they would not impress American seamen. Their offer to us was not accepted, but it was beyond question, in my opinion, more beneficial than the proposition which we on that occasion made to them. But it may be said that the right of search cannot be endured; that the protection of our flag must be held inviolate; that if a search of our ships be permitted for British seamen, they may actually take American seamen. Sir, there is no doubt of the fact that by mistake, sometimes perhaps by wilful misconduct, on the part of officers engaged in the search, such a thing may happen. But, should we not think it exceedingly strange that the misconduct of an officer of the American Government, in one case in twenty if you will, should be a cause of war for any nation against us? It is one of those cases which does occur, and will forever occur, to a neutral power, whenever a general war is lighted up. It is one of the prices which this country has to pay for its rapid accession of wealth, such as is unheard of in the annals of any other nation but our own. And this, sir, is the state of things in which we have undertaken, in children's language, to quarrel with our bread and butter; and to identify ourselves with one of the belligerents in a war in which we have no proper concern. I will not touch at all the abstract question of the right of impressment: it has been so much more ably handled by others that I shall not say a word about it. I address myself to the common sense of the planter, the farmer, the agriculturist of our country--are you willing upon such grounds as these to continue this war? I have no doubt what will be their answer. On these subjects I have delivered my sentiments more than once before in this House. I think of them with horror as the accursed cause of this war. Not that the men who are in power are worse men than other people, but that they have brought upon this land of peace and freedom issues the end of which it would be impossible for any human being to divine. One thing is certain, that the right of search does practically exist, and has been acknowledged by all nations. The President of the United States and his Secretary of State, as great masters of the Law of Nations, will be among the first to acknowledge it; they _have_ acknowledged it, and by our treaties with foreign powers, this country has heretofore acknowledged it, so far as concerns the right to search for contraband goods and enemy's property. Suppose that there are notorious abuses under this right: should we be justified in declaring that no search whatever of our merchant vessels shall be allowed? There is no doubt that, under the color of the right of search--for I am advocating its lawful purposes only--abuses have been committed on neutrals; and as long as men exist it will be so. The liability to abuse of this right is the price which neutrals pay for the advantages which they derive from their neutrality; and I should like to know whether it would be for me to join in the contest in which these belligerents are engaged for the recovery of my _neutral_ rights. Where are those rights when great maritime powers become belligerent? There are neutral rights undoubtedly, but there are also neutral duties. And shall a neutral nation, a nation which has in that character prospered and flourished more than any people on the face of the globe, sacrifice those rights and those advantages, and resort to war against one of those belligerents--and for what? For a point of honor! Yet, whilst in this Quixotic spirit we have gone to war with England; although we have been robbed, reviled, contemned throughout by the Emperor of France, we can see no cause of war with him! What shall we say of the _French_ doctrine in relation to this subject of impressment? If that has been dwelt upon in this debate by any honorable gentleman of this House it has escaped my notice. What is the French doctrine on this subject--established at the time when the United States stood in relations of peace and amity to that power, when every heart beat high with sympathy for the success of French freedom; when some of those who have since transferred their admiration, I will not say their love, to the present head of the French Government, to the enemy of French freedom, and all freedom, to all commerce, and right, and religion--at the time when some of those who have since so lamentably changed on this subject felt an interest for freedom and France scarcely inferior to that which they felt for freedom and America? What were then the doctrines of the French Government? That all who spoke the English language should be treated as Englishmen, unless they could give proof to the contrary; the _onus probandi_ lying on those who spoke the language of Locke, and Newton, and Milton, and Shakspeare. Yes, sir, whilst the English Government establishes no such doctrine, the French Government acts upon the principle that speaking the English language is _prima facie_ evidence of your being a British subject, and would justify their treating you as an enemy, the burden of the proof to the contrary being thrown upon yourself. And, sir, is it nothing to the bill which we are now debating, for raising an additional army of twenty thousand men--or is it a departure from order to hint on this floor at a circumstance which all men are employed and occupied in discussing at their firesides?--that this army, to constitute an aggregate of fifty-five thousand regular troops, is about to be put under the control of the man who was the author of the Anonymous Letters at Newburg at the close of the Revolutionary war, inciting a handful of men, the remnant of the old American army--perhaps not numbering six thousand altogether--to give _a master_ to the nation? Is that a consideration to have no weight upon such a question as this? With me, sir, it is conclusive. I will tell gentlemen on both sides of the House that a Government or a man may despise a calumny--that the arrows of slander will fall blunt and harmless upon them--provided that the Government and the man be true to itself and himself. Yes, sir, ask yourself this question in regard to any man, to whom you are about to confide important trusts: Does he pay his just debts? Is he a man of truth? Does he discharge as he ought the duties of a friend, a brother in society? After having done that, be his politics what they may, and his peculiarity of opinion in politics what it may, he is a good man; he acquires the esteem of all who know him; he is impenetrable to mere vulgar calumny. This Government ought to employ men of real worth and capacity: it is not always that those showing qualities attracting attention in private life, or as companions, are of _real_ capacity. Do those who administer the Government make it a rule to employ in the public service none but men of real capacity, or worth, of integrity, and of high character? Do they give their contracts and offices without fear, favor, or affection, to men of responsibility and character--to such men as you would in private life give your own contracts to? Or do they bestow them, as is done in some Governments differently constituted from ours, where church preferment and military preferment are sometimes made a dirty job of Parliamentary interest? Do they employ men of clean hands, with fair characters; or is every caitiff, without examination, welcome to their arms, provided he can bring with him the proof of his treachery to his former employers? It depends on these facts whether confidence is due to any Administration of the Government. Sir, I have much yet to say which appeared to me, when I rose, not to be unworthy your attention; but I confess to you, with feelings something like contrition, that my opinion on this subject has undergone a change. There is one point, however, on which I do not know how to speak in this place with the reverence which is due to it. I cannot pass it over, and yet I know not how to touch it. Yes, sir, there is one reflection pressing itself as a crown of thorns upon my own head, which I am bound to present to the consideration of this Assembly and this people. Is it fitting that the only two nations among whom the worship of the true God has been maintained with any thing like truth and freedom from corruption; that the only two nations among whom this worship has been preserved unstained, shall be the two now arrayed against each other in hostile arms in a conflict in which, let who will conquer in the fight, his success in one point, if that be an object, will have been attained: so much of human life, liberty, and happiness, will have perished in the affray--in the service of this scourge with which it has pleased God, in his wisdom and justice, not in his mercy, to inflict mankind? Is it fitting that those hands which unite in giving to idolaters and to the heathen the Word of God, the Book of Life--that those hands, and those alone, should be thus drenched in each other's blood? Will you unite as a Christian with your Protestant brother across the Atlantic for these noble purposes, and then plunge the dagger into his breast with whom you are associated in a cause so holy--one so infinitely transcending the low, the little, the dirty business we are called upon here to transact? I hope that the sacrifice may be stopped. We have nothing to expect from the mission of our Minister to the Ruler of France, whether at Moscow, or wherever else he may be. The Deity or Devil whom we worship is not to be mollified by our suppliant appeals. Let us turn from him--come out of his house--and join in the worship of the true and living God, instead of spilling the blood of his people on the abominable altar of the French Moloch. Sir, I have done. I could have wished to continue my remarks further, but I cannot. When Mr. RANDOLPH concluded, the House adjourned. THURSDAY, January 14. _Additional Military Force._ The House then resumed the consideration of the bill to raise twenty additional regiments of infantry for one year.--The question being on the passage of the bill. Mr. STOW, said: Mr. Speaker, I am aware of the delicacy and novelty of my situation, as well from the indulgence of the House, as from the neutral course which I mean to pursue. He must have been indeed an inattentive observer of mankind who proposes to himself such a course without being exposed to difficulties and dangers from every side. Our country has experienced them too long from the great belligerents of Europe, and an individual will quickly find them here. For even this House is not exempt from its great party belligerents who issue their conflicting decrees and Orders in Council; and, in imitation of the hostile Europeans, it is sometimes a sufficient cause of condemnation to have been spoken with by the adverse side. Yet, notwithstanding all these dangers, I mean to launch my neutral bark on this tempestuous ocean, conscious of the rectitude of my intentions, and humbly hoping for the approbation of my country and my God. The proper extent of the discussion growing out of this bill seemed to be confined to these inquiries: Can the force contemplated be obtained? If obtained, will it accomplish the end proposed? And lastly, will the force be an economical one? If the discussion had been confined to these limits I would have listened, and not have spoken; but, sir, it has taken a wider range, and assumed a more important aspect. It has embraced the present, and past, and the future. The causes of the war, and the mode of conducting it, have been investigated, and even confident predictions have been made as to its end. The history and the state of our negotiations have been carefully examined--and the Presidential order of succession has been scrutinized by the light of experience as well as that of prophecy. We have sometimes been forced into the scenes of private life; and, at other times, we have been chained to the car of Napoleon. In short, sir, the discussion has ranged as wide as existence, and, not content with that, the speakers "have exhausted worlds, and then imagined new." I do not pretend to censure this--it may be well for the people to have their political concerns thus splendidly dressed and passed in review before them. But still I will attempt to call the attention of the House from the regions of fiction, of fancy, and of poetry, to the humble, but I trust no less profitable, sphere of reality and prose. Passing by many of those things which have amused by their ingenuity, or surprised by their novelty, but which do not deserve a serious answer, I will endeavor to state distinctly the grounds taken by the opponents of this bill, or rather the opponents of furnishing the means of prosecuting the war: Firstly. It is alleged "that the war was originally unjust." Secondly. "That if the war was originally just, it has become unjust to continue it in consequence of the revocation of the British Orders in Council." Thirdly. "That it is inexpedient to prosecute the war, because we have no means of coercing our enemy or enforcing our claims." Fourthly. "That we are unable to support the war." And fifthly. "That, in consideration of all these circumstances, the House ought to withhold the means of further prosecuting the war." First, then, it was alleged that the war was originally unjust. Here let me call on the House to distinguish between unjust and inexpedient. Nothing can be more important than to have clear and distinct ideas about those words which lie at the bottom of a science, or inquiry. This is happily illustrated in mathematics--there every word, by the help of diagrams, is carefully defined; and the consequence is, that there are no disputes among mathematicians, while their labors have done honor to mankind. A thing may be just and yet inexpedient: the justice of an act relates to the conduct of another, the expediency of our own situation. It may be just for me to sue the man who withholds from me the smallest sum; and yet so inexpedient as to be even ridiculous. Thus a war may be perfectly just, and at the same time highly inexpedient. This, if I mistake not, was the ground generally taken the last year by the opponents of the war, particularly by the gentleman from Virginia before me, (Mr. SHEFFEY,) which pointed out the distinction which I have endeavored to do, though with more ability and success. I hope the House will bear this distinction in mind; because it is of the greatest importance in the investigation which I intend to make. Before I enter further on the argument, I ask the House to indulge me for a moment while I explain my views relative to the commencement of the war. I never saw any want of provocation on the part of Great Britain. I never for an instant doubted the justice of the war, while I urged its inexpediency with all my might. I considered man placed here by a beneficent Providence, on a fertile soil, and in a happy climate, enlightened by science, and protected by the wisest of laws. By our Revolution cut adrift, as I may say, from the old world, before the storm which was about to desolate Europe arose, I fondly hoped that this new world would furnish one fair experiment of what science, liberty and peace, might achieve, free from those corruptions which have eternally attended on war. I hoped to see the country improved, and bound together by roads and canals, to see it adorned by literary institutions, and by every establishment which reflects honor upon man. Nor do I yet believe that this was an Utopian vision, or an idle dream. I still believe it might all have been realized by a different course--but the nation has determined on war, and, though it was not my choice, I still maintain that it is not unjust. I shall now examine the second proposition, "that if the war was originally just, its further prosecution is unjust." On what ground does this rest? It is this, that the Orders in Council were the cause of the war; those orders having ceased, the prosecution of the war becomes unjust. Here again justice and expediency are confounded. It was never maintained, that the Orders in Council rendered war more just than many other outrages, though they went farther to prove its expediency, and even necessity. It therefore follows, that their repeal does not affect the justice of the war; unless accompanied with compensation for the spoliations committed under them, and atonement made for other wrongs. Neither of these, is it pretended, has been done; except so far as relates to the affair of the Chesapeake, and which I purposely left out of the catalogue of grievances. An injury which was a just cause of war, remains a just cause for its continuance, till atonement is offered, or till it is settled by negotiation. But, sir, an ample justification of war remains in the impressment of our seamen. The claim on our part is not, as has been alleged, a claim to protect British seamen--it is a claim to protect American citizens. Nay, more, as respects the justice of the continuance of the war, it is a claim only, that they will cease from the practice during the truce, that it may be seen whether it is possible to arrange it by negotiation. Is it unjust to continue the war, till this demand is complied with? or does any American wish to see his country prostrated still lower? Having thus far explained my ideas relative to the justice of the commencement and continuance of the war, I will now proceed to answer the third objection, namely: That it is inexpedient to carry it on, because we have no means of coercing our enemy--of compelling him--to what? barely to a just and honorable peace; for that is all we demand. And have we no means of doing this? Better, then, to surrender the charter of our independence, confess we are incapable of self-protection, and beg his most gracious Majesty to again take us under his paternal care. Such a doctrine, sir, is as unfounded, as it is degrading to the American character. We have ample means of compelling Great Britain to do us justice; they are to be found in the value of our commerce; in the enterprise of our privateers; in the gallantry of our ships of war, and the conquest of her provinces. Our custom (considering her in the light of a mechanic or merchant who supplies) is of vital importance to Great Britain. It is not to be measured by its amount, in pounds, shillings, and pence, but by the strength and support she derives from the intercourse. For, while I admit that Great Britain does not send half her exports to the United States, I do maintain, that the custom of this country is of more importance to her, than that of the whole world besides. It is with a nation as with an individual, if he exchange luxuries for luxuries, or superfluities, such as ribands for ribands, which he consumes, he adds nothing to his wealth; but if he exchange his luxuries, or his ribands, for bread, or for such materials as give scope to his industry, he is then benefited, and enriched by the interchange. Such is the situation of Great Britain with regard to America. She, and her dependencies, receive more of provision, and raw materials, from America, than from all other parts of the world together. Our trade exactly gives effect to her industry, her machinery, and her capital. And it is this which has, in a great degree, enabled her to make such gigantic efforts in the awful contest in which she is engaged. Our privateers; will they have no effect on Great Britain? Will she learn nothing from the loss of three or four hundred ships? And will she be insensible to the efforts of our little Navy? Can they touch no nerve in which Britons feel? Far different are my conclusions, from what I have seen in British papers--they show that she is tremblingly alive to that subject. Sir, I will now consider her provinces, about which so much has been said. I, too, will speak of that wonderful country, called Canada, which unites in itself all contrarieties! Which is so cold and sterile, as to be not worth possessing; and so fertile, that if, by any calamity it should become ours, it would seduce away our population; which is so unhappy under the British Government as not to lure our inhabitants; yet so happy, that it is criminal to disturb their felicity;--whose inhabitants, if united with ours, would destroy us, because they have none of the habits of freemen; and who, well knowing the privileges of their free Government, will defend them to the last. A country which is of no importance to Great Britain, and whose loss would not make her feel; a country which is so valuable to Great Britain that she will never give it up. A country so weak that it is inglorious to attack it; and a country so strong that we can never take it. But, sir, leaving these, and a thousand other contradictions, the work of fancy or of spleen, I will present to the House what I believe to be a true view of the subject, drawn from a near residence and much careful examination. Canada is of great importance both to Great Britain and the United States. It is important to Great Britain in the amount and kind of its exports. In the last year preceding war, its exports amounted to between seven and nine millions of dollars, an amount almost as great as the exports of the United States preceding the Revolutionary war. And had the most discerning statesman made out an order, he could not have selected articles better adapted to the essential wants of Great Britain. It has been said that Canada is of less value than one of the sugar islands of the West Indies. Sir, in the present state of the world, Canada is of more importance to Great Britain, in my opinion, than the whole West India Islands taken together. In danger, as she is, of being shut out from the Baltic, and fighting for her existence, she wants not the luxuries, the sugars, and the sweetmeats of the West Indies--she wants the provisions, the timber, the masts, and the spars of the North. Canada is also of the greatest importance to the United States, in a commercial and political point of view. I have in a great measure explained its commercial importance, by stating its exports; a large portion of which were the products of the United States. Let an attentive observer cast his eye for one moment on the map of North America; let him bear in mind, that from the forty-fifth degree of latitude the waters of Canada bound for a vast extent one of the most fertile, and which will become, one of the most populous parts of the United States; and he will readily perceive that the river St. Lawrence must soon be the outlet for one-third of all the products of American labor. The same circumstances will enable it to lay an impost on one-third of our imported articles. Nor will the evil to our revenue end here. Great Britain will be enabled to smuggle her goods through this channel into all parts of the Union. It will be in vain that you attempt to counteract her by laws; from the great length and contiguity of her possessions, she will forever evade them, unless by your laws you can change the nature of man. But its greatest importance is in a political point of view: for, although not as happy in its government as the United States, it is sufficiently so to draw off multitudes of our new settlers, when the intermediate lands of the State of New York, which separate it from New England, shall be fully occupied. From this circumstance it will divide the American family, and, by the commercial relations which I have pointed out, it will exert a dangerous influence over a part of our country; for the transition from commercial dependence, to political allegiance, is too obvious to be insisted on. Having endeavored to show the importance of Canada to both of the contending nations, I I will only add that it is within our power. The fourth objection is, that we cannot support the war--that we have not the ability to carry it on. Before I proceed to answer this objection, permit me, sir, to notice a single inconsistency of the gentlemen by whom it has been urged. It is this: in one part of their argument, they represent the people as too happy to enlist, and in another part as too poor to pay! Both of these propositions, I presume, cannot be true. Not to dwell longer, however, upon this contradiction, I do maintain, sir, that the nation is fully able to prosecute the war. On what does the ability of a nation depend? A person who will give himself the trouble of examining things rather than words, will find that it is proportioned to the number of laborers and the productiveness of their labor. Wherever, from soil, climate, or improvement, the labor of a country will produce more than a supply of the necessaries of life, it is evident that the surplus time may be devoted to idleness, to the production and consumption of luxuries, or to the carrying on of war. To illustrate this farther--suppose the labor of a person for five days will support him six, then it is clear, that the labor of five men will support the sixth man in idleness or in war. Now, sir, there is nowhere that the labor of seven millions of people will produce so much as in this country; consequently, nowhere have seven millions of people so great an ability to carry on a war. The quantity of circulating medium, whether made of paper or of silver dollars, has very little to do with the subject. If it is made of paper, and to a great extent, it only shows that the people are in their habits commercial; and that the faith of contracts is well supported. The real ability of a nation lies in what I have stated; and he must be a weak politician who cannot call it forth. Mr. Speaker, I will now consider the last, and by far the most important objection of all; and one, without which, I certainly would not have spoken. It is, that in consideration of all the circumstances in which we are placed, it is the duty of this House to withhold the means of further prosecuting the war. It will not be denied, I trust, that this is a fair statement of the scope and object of most of the reasonings which have been employed; and that without this construction, they would be irreconcilable with common sense. This doctrine, in my opinion, goes not only to the overthrow of our constitution, but to the destruction of liberty itself. The principle of our Government is, not only that the majority shall rule, but that they shall rule in the _manner_ prescribed by the constitution. So that if it could be proved that a majority of the people were in favor of certain measures, it would not be sufficient till they had pronounced that decision through the _constitutional_ organs. In short, it must have been a principal object with the framers of our constitution to suspend, at least for a limited time, the effects of popular opinion. The constitution has committed the legislative power to three co-equal branches; and to the same hands has it entrusted the power of declaring war; while it has expressly confided the treaty-making power (and which alone can make peace) to two only of those branches. The claim now set up, goes to invest that branch which has no authority in the matter, not only with the treaty-making power, but also with a complete control over the other two branches. Thus _one_ branch of the Government forcing the nation to _desist_ from doing what _three_, including itself, had thought best to _perform_. Let us test the correctness of this principle by applying it to another co-equal branch of the Government. Let us suppose the President has made a treaty of peace, which is disapproved of by the Senate--and suppose upon this he should say, the war ought not to be further prosecuted, and refuse to employ the public force, would you not impeach him? Most unquestionably you would. I expressly admit that cases may be imagined, where such a course would be proper--where it would be not only the duty of this House to withhold supplies, but where it would be the duty of an individual to resist the laws; but such are extreme cases, not provided for by any organization of Government. What, sir, has been the practice of the British House of Commons? Have they ever refused supplies because a war was unpopular, since their revolution? Did not the same Parliament, which resolved that they would consider any man as an enemy to his country, who would advise his Majesty to the further prosecution of offensive war in America, still vote the means for carrying on the war? A similar case occurred when Mr. Fox came last into power--he disapproved of the commencement and conduct of the war, and yet he called for and received the necessary supplies. Mr. CALHOUN observed, that he could offer nothing more acceptable, he presumed, to the House, than a promise not to discuss the Orders in Council, French decrees, blockades, or embargoes. He was induced to avoid these topics for several reasons. In the first place, they were too stale to furnish any interest to this House or country. Gentlemen who had attempted it, with whatever abilities, had failed to command attention; and it would argue very little sagacity on his part not to be admonished by their want of success. Indeed, whatever interest had been at one time attached to these subjects, they had now lost. They have passed away; and will not soon, he hoped, return into the circle of politics. Yes, sir, as reviled as has been our country's efforts to curb belligerent injustice, as weak and contemptible as she has been represented to be in the grade of nations, she has triumphed in breaking down the most dangerous monopoly ever attempted by one nation against the commerce of another. He would not stop to inquire whether it was the non-importation act, or the menace of war, or, what was the most probable, the last operating on the pressure produced by the former. The fact is certain, that the Orders in Council of 1807 and 1809, which our opponents have often said that England would not yield, as they made a part of her commercial system, are now no more. The same firmness, if persevered in, which has carried us thus far with success, will, as our cause is just and moderate, end in final victory. A further reason which he had, not to follow our opponents into the region of documents and records, was, that he was afraid of a decoy; as he was induced to believe from appearances that their object was to draw our attention from the merits of the question. Gentlemen had literally buried their arguments under a huge pile of quotations; and had wandered so far into this realm of paper, that neither the vision of this House has been, nor that of the country will be, able to follow them. There the best and worst reasons share an equal fate. The truth of the one and error of the other, are covered with like obscurity. Mr. C. said he would not multiply proof on a course of conduct the bad effect of which was too sensibly felt to be easily forgot, and the continuation of which was but too apparent in the present discussion. For what was the object of the opposition in this debate? To defeat the passage of this bill? It has been scarcely mentioned; and contains nothing to raise that storm which has been excited against it. The bill proposes to raise twenty thousand men only, and that for one year; and surely there is nothing in that calculated to lay such strong hold of the jealousy or fear of the community. What then is the object of the opposition? Gentlemen certainly do not act without an intention; and wide as has been the range of debate, it cannot be so lawless as to be without an object. It was not, he repeated, to defeat the passage of this bill; no, but what was much more to be dreaded, to thwart that, which the bill proposes to contribute to, the final success of the war; and for this purpose he must do the opposition the credit to say, they have resorted to means the best calculated to produce the effect. In a free Government, in the government of laws, two things are necessary for the effectual prosecution of any great measure; the law by which the executive officer is charged with the execution and vested with suitable powers; and the co-operating zeal and union of the people, who are always indispensable agents. Opposition to be successful must direct its efforts against the passage of the law; or, what was more common and generally more effectual, to destroy the union and the zeal of the people. Either, if successful, is effectual. The former would in most cases be seen and reprobated; the latter, much the most dangerous, has, to the great misfortunes of Republics, presented at all times a ready means of defeating the most salutary measures. To this point the whole arguments of opposition have converged. This gives a meaning to every reason and assertion, which have been advanced, however wild and inconsistent. No topic has been left untouched, no passion unessayed. The war has been represented as unjust in its origin, disastrous in its progress, and desperate in its farther prosecution. As if to prevent the possibility of doubt, a determination has been boldly asserted not to support it. Such is the opposition to the war, which was admitted on all sides to be just; and which in a manner received the votes even of those who now appear to be willing to ruin the country in order to defeat its success. But, say our opponents, as they were opposed to the war, they are not bound to support it; and so far has this opposition been carried, that we have been accused almost of violating the right of conscience, in denying the right set up by gentlemen. The right to oppose the efforts of our country, while in war, ought to be established beyond the possibility of doubt, before it can be justly adopted as the basis of conduct. How conscience can be claimed in this case cannot be very easily imagined. We oppose not by laws or penalties; we only assert that the opposition experienced cannot be dictated by love of country, and is inconsistent with the duty which every citizen is under to promote the prosperity of the Republic. Its necessary tendency is to prostrate the country at the feet of the enemy, and to elevate a party on the ruins of the public. Till our opponents can prove that they have a right which is paramount to the public interest, we must persist in denying the right to thwart the success of the war. War has been declared by a law of the land; and what would be thought of similar attempts to defeat any other law, however inconsiderable its object? Who would dare to avow an intention to defeat its operation? Can that, then, be true in relation to war which would be reprobated in every other case? Can that be true which, when the whole physical force of the country is needed, withdraws half of that force? Can that be true which gives the greatest violence to party animosity? What would have been thought of such conduct in the war of the Revolution? Many good citizens friendly to the liberty of our country were opposed to the declaration at the time; could they have been justified in such opposition as we now experience? To terminate the war through discord and weakness is a hazardous experiment. But, in the most unjust and inexpedient war, it can scarcely be possible, that disunion and defeats can have a salutary operation. In the numerous examples which history furnishes, let an instance be pointed out, in any war, where the public interest has been promoted by divisions, or injured by concord. Hundreds of instances may be cited of the reverse. Why, then, will gentlemen persist in that course where danger is almost unavoidable, and shun that where safety is almost certain? But, sir, we are told that peace is in our power without a farther promotion of the war. Appeal not, say our opponents, to the fear, but to the generosity of our enemy. England yields nothing to her fears; stop, therefore, your preparation, and throw yourself on her mercy, and peace will be the result. We might, indeed, have pardon, but not peace on such terms. Those who think the war a sacrilege or a crime, might consistently adopt such a course; but we, who know it to be for the maintenance of the just rights of the community, never can. We are farther told that impressment of seamen was not considered a sufficient cause of war; and are asked why should it be continued on that account? Mr. C. observed that he individually did not feel the force of the argument; for it had been his opinion, that the nation was bound to resist so deep an injury even at the hazard of war; but, admitting its full force, the difference is striking between the commencement and the continuance of hostilities. War ought to be continued until its rational object, a permanent and secure peace, could be obtained. Even the friends of England ought not to desire the termination of the war, without a satisfactory adjustment of the subject of impressment. It would leave the root that must necessarily shoot up in future animosity and hostilities. America can never quietly submit to the deepest of injury. Necessity might compel her to yield for a moment; but it would be to watch the growth of national strength, and to seize the first favorable opportunity to seek redress. The worst enemy to the peace of the two countries could not desire a more effectual means to propagate eternal enmity. But it is said that we ought to offer to England suitable regulations on this subject to secure to her the use of her own seamen; and because we have not, we are aggressors. He denied that we were bound to tender any regulations, or that we had not. England was the party injuring. She ought to confine her seamen to her own service; or, if that was impracticable, propose such arrangements that she might exercise her right without injury to us. This is the rule that governs all analogous cases in private life. But we have made our offer; it is, that the ship should protect the sailor. It is the most simple and only safe rule; but, to secure so desirable a point, the most liberal and effectual provisions ought and have been proposed to be made on our part to guard the British Government against the evil they apprehended, the loss of her seamen. The whole doctrine of protection heretofore relied on, and still recommended by the gentleman from Connecticut, (Mr. P.,) is false and derogatory to our honor; and under no possible modification can effect the desirable objects of affording safety to our sailors, and securing the future harmony of the two countries. Nor can it be doubted, if governed by justice, she will yield to the offer of our Government, particularly if what the gentleman from New York (Mr. BLEECKER) says be true, that there are ten thousand of her seamen in our service. She would be greatly the gainer by the arrangement. Experience, it is to be feared, however, will teach that gentleman that the evil lies much deeper. The use of her seamen is a mere pretence. The blow is aimed at our commercial greatness. It is this which has animated and directed all of her injurious councils towards this country. England is at the same time a trading and fighting nation; two occupations naturally at variance, and most difficult to be united. War limits the number and extent of the markets of a belligerent, makes a variety of regulations necessary; and produces heavy taxes, which are inimical to the prosperity of manufactories and consequently commerce. These causes combined give to trade new channels, which direct it naturally to neutral nations. To counteract this tendency, England, under various but flimsy pretences, has endeavored to support her commercial superiority by monopoly. It has been our fortune to resist with no inconsiderable success this spirit of monopoly. Her principal object in contending for the right of impressment is to have, in a great measure, the monopoly of the sailors of the world. A fixed resistance will compel her to yield this point as she has already done her Orders in Council. Success will amply reward our exertions. Our future commerce will feel its invigorating effects. But, say gentlemen, England will never yield this point, and every effort on our part to secure it is hopeless. To confirm this prediction and secure our reverence, the prophecies of the last session are relied on. Mr. C. felt no disposition to disparage our opponents' talents in that line; but he very much doubted whether the whole chapter of woes had been fulfilled. He would, for instance, ask whether so much as related to sacked towns, bombarded cities, ruined commerce, and revolting blacks, had been realized? Such, then, is the cause of the war and its continuation; and such the nature of the opposition experienced, and its justification. It remains to be seen whether the intended effect will be produced. Whether animosity and discord will be fomented, and the zeal and union of the people to maintain the rights and indispensable duties of the community will abate; or, describing it under another aspect, whether it is the destiny of our country to sink under that of our enemy or not. Mr. C. said he was not without his fears and his hopes. On the one hand our opponents had manifestly the advantage. The love of present ease and enjoyment, the love of gain, and party zeal, were on their side. These constitute part of the weakness of our nature. We naturally lead that way without the arts of persuasion. Far more difficult is the task of the majority. It is theirs to support the distant but lasting interest of our country; it is theirs to elevate the minds of the people, and to call up all of those qualities by which present sacrifices are made to secure a future good. On the other hand, our cause is not without its hope. The interest of the people and that of the leaders of a party are, as observed by a gentleman from New York, (Mr. STOW,) often at variance. The people are always ready, unless led astray by ignorance or delusion, to participate in the success of the country, or to sympathize in its adversity. Very different are the feelings of the leaders; on every great measure they stand pledged against its success, and almost invariably consider that their political consequence depends on its defeat. The heat of debate, the spirit of settled opposition, and the confident prediction of disaster, are among the causes of this opposition between the interest of a party and their country; and in no instance under our own Government have they existed in a greater degree than in relation to the present war. The evil is deeply rooted in the constitution of all free Governments, and is the principal cause of their weakness and destruction. It has but one remedy, the virtue and intelligence of the people--it behooves them, as they value the blessings of their freedom, not to permit themselves to be drawn into the vortex of party rage. For if by such opposition the firmest Government should prove incompetent to maintain the rights of the nation against foreign aggression, they will find realized the truth of the assertion that government is protection, and that it cannot exist where it fails of this great and primary object. The authors of the weakness are commonly the first to take the advantage of it, and to turn it to the destruction of liberty. Mr. DESHA.--Mr. Speaker, it is not my intention to detain you long; my principal object in rising is to conjure gentlemen to bring this debate to a close. Sir, what can gentlemen flatter themselves by suffering this discussion to be protracted to so unwarrantable a length? It cannot be supposed that the substantial part of this House (I mean those who think much and speak little) will, by theoretical or sophisticated remarks, be driven from their course. Then, sir, those long-winded speeches must be either intended for the gallery, or for gentlemen's constituents. It would certainly be unjustifiable to sport away the public money; to exhaust the public patience in making long speeches, merely for the purpose of amusing the ear of the gallery. And, sir, your constituents would much rather you would act with decision, with promptitude, in adopting measures calculated for a vigorous prosecution of the war, that it might be brought to a speedy and honorable termination, than to take up weeks in detailing the causes of the war. The people are fully apprised of the causes of the war, from the documents that have been promulgated; they are satisfied that it is a just and necessary war: that it has been forced upon us by the injustice and oppression of our enemy, occasioned in a great measure by the violent opposition of a party to the Administration. Sir, act so as to give a vigorous prosecution to the war, and act promptly, and the people will support you with manly firmness, independent of the consideration of expense. Mr. Speaker, this bill contemplates raising twenty thousand men for one year. Although I shall vote for the bill under consideration, I do not altogether approve of it. Sir, the time of service is too short to answer a valuable purpose. I am not so sanguine as to suppose that we will overrun the British provinces in one season. I should like it much better if the time of service, as has been proposed, was extended to eighteen months, and the bounty raised in proportion. You would then have the advantage of two campaigns; in the last of which, you might calculate on a certainty of being able to do something of a decisive character, as you would have the advantage of disciplined troops; and really, sir, if this bill is to answer any valuable purpose, it ought to have been passed some time since. Gentlemen certainly must see that the object of the opposition is procrastination; they have predicted that the bill under consideration, if adopted, will not only run the country to extraordinary expenses, swell the national debt to an enormous size, but that it will ultimately bring disgrace on the Government. And, sir, they are determined that their predictions shall be realized, by putting off the passage of the bill until late in the season thereby preventing you from obtaining the men in time to do any thing of a decisive character next summer. This, in my mind, is unquestionably their object; and I believe the ambition of some of them is such, that, rather than be found false prophets, they would endanger the only republic in the world. Sir, I do not wish to be understood to include the whole Federal party; far from it. I believe there are some, and I hope a considerable portion, who are American in principle, and would, perhaps, go as far as any American in defending their country's rights. Sir, it is not my intention to arraign motives; but, speaking of party, what has been the conduct of the Federalists for twelve years past, ever since the termination of the Reign of Terror? A uniform opposition to every thing of a prominent character proposed by the different republican Administrations. Now, sir, if Mr. Jefferson and Mr. Madison had been the weakest of men, as well as the wickedest, (which no man in his senses, who had any respect for his character, or standing in society, would assert,) they must have accidentally happened on something right in the course of twelve years. Mr. Speaker, it is mortifying to see gentlemen who call themselves Americans, rise up in the face of the nation to palliate and vindicate the conduct of an enemy, and at the same time reprobate, in the strongest language of ridicule, every step proposed by the Administration calculated to counteract the iniquitous and destructive policy of our enemy. Can such conduct be called American? Sir, when it ought to be the duty and pride of every man having any pretensions to American principles, to rally under the governmental standard, in order to assist in expelling our tyrannical oppressors from the continent, by which extricating the Government from its present difficulties, you see the Federal party making every exertion in their power to make the war a dishonorable one. I know, Mr. Speaker, that it is in the nature of tyrannical or despotical Governments to take arbitrary strides; yet, sir, I do believe that the impositions and oppressions heaped upon the American Government; the evils under which we at this time labor, are measurably, if not entirely, attributable to the party hostility arrayed against the Administration. Sir, they have, by their uniform opposition, led the British to believe that they had a powerful party in this country; that parties were nearly equally balanced; that it would be impossible for a Republican Administration to adhere to any decided stand taken against England, and that finally the English party would prevail. Thus, sir, have Government been beset by party. They have been baffled in every peaceable step calculated to vindicate our rights, or redress our grievances, until, by the injustice of our foreign enemy, bottomed on the aid they calculated on receiving from our domestic foes, the Government have been forced into war. And now you are told to put a stop to the war, and try once more if Briton will not do us justice. Degrading thought! Sir, we have already humbled ourselves in making proposals, and all efforts on the part of the Administration failed. The world has seen and understood that the failure was attributable to her own wickedness, and not to our pertinacity. Sir, the American Administration has exhibited an example of moderation unparalleled in the annals of the world; our forbearance has astonished the universe, and we have the consolation to see that neither the guilt of aggression, nor the folly of ambition, can be fairly attributed to it. Negotiation, as well as patience, has been exhausted. Instead of appealing again to the justice of a Government that makes principle bend to power, we have been necessarily compelled (though reluctantly) to appeal to arms, and I trust in God that they will never be laid down short of justice. Mr. CHEVES rose.--It was for some time during this debate, said he, my intention to have mingled my unimportant opinions and sentiments with those of other gentlemen in this discussion; but I gave way from time to time before the eagerness of others who were desirous of presenting themselves to your attention, and I had entirely abandoned the idea of taking any part in the argument; but the sudden and unexpected indisposition at this moment of my worthy friend and honorable colleague, (Mr. WILLIAMS,) the chairman of the committee with whom this bill originated, who was expected to close the debate, has left a vacuum in the argument which I propose to fill. Could he have addressed you, as he was prepared and anxious, in the faithful discharge of his duty to do, it would have rendered the feeble attempt which I shall make as unnecessary as it would have been impertinent and obtrusive. I propose, then, to speak, as my honorable friend would probably have done, generally, but briefly, on the several heads of discussion which have been introduced into the debate, which has not been on the bill before you, but on the general merits of the war; the origin, progress, and continuance of it. I mean not to censure the wide range which this discussion has taken. It is fair and right in gentlemen of the opposition to select some occasion during each session on which to discuss the great questions of state which the public events of the passing times present; and the one furnished by the bill before you was perhaps as proper as any other. Almost all the gentlemen who have addressed you, have very gravely told you, by way of exordium, of their unquestionable right to do so, and of the firmness with which they mean to assert and exercise it, as if there had been, at any time, really an opposition to this freedom of discussion. These introductions must be a little amusing to the members of this House and to the attendants in your galleries, who have been in the habit of listening to the gentlemen. But if there ever could have been a doubt on this subject, and surely there never was any, the debate, which I hope is about to be closed, affords an ample refutation of it. There are parts of this debate which will descend to distant posterity as a monument of the freedom of discussion in this Hall. I trust, sir, we shall furnish few such testimonials--I hope never to see another exhibition on this floor. They must be looked upon with apprehension by all those who consider the restraints of personal politeness and the urbanity of social esteem as affording a better security to those who love peace and good manners, for the preservation of these valuable objects, than can be lent by the strongest arm or the severest sanctions which positive institutions have established; restraints under which even "vice itself loses half its evil, by losing all its grossness." I shall imitate the example of gentlemen who followed in the debate--I shall pour oil upon the waves, and endeavor to still the raging of the storm. Gentlemen, fruitful in epithets, yet rather fruitful in their abundance than in their variety, have called this an unjust, wanton, wicked, and unnecessary war. I, on the contrary, assert it to be a just and necessary war. One characteristic difficulty here presents itself, which has occurred in all the discussion in and out of this House on this subject. What is a just and necessary war? By the advocates of war it is asserted that the injuries and insults of the enemy demanded war, and rendered this war just and necessary. The opponents of war admit the magnitude of the insults and injuries, but deny the inference. They assert that the war is unnecessary and not justifiable, because the pecuniary expenditure and loss will exceed in value the commercial objects for which we are contending. The advocates of war deny both the premises and the conclusion. The objects of the war are not merely commercial, but, if they were, the inference is denied. They admit that the pecuniary expenditure and loss will exceed the pecuniary value of the commercial objects for which they contend, but they deny that a war for commercial objects is therefore unnecessary or indefensible. To an intelligible argument it seems, therefore, under these circumstances, necessary that we should begin by some definition of a just and necessary war; and yet it seems to be a melancholy labor in a great and free State, where public sentiment should be unequivocal on such subjects, to proceed by rules of logic to establish great first principles of public sentiment; but I fear that, as all good things are purchased by concomitant sacrifices, we have not obtained the innumerable blessings and advantages of the freedom of speech and of the press for nothing. I fear they have sometimes substituted an erring reason for a better guide--the great uncontaminated current of public feeling--the moral sense of the nation, of which the honorable gentleman from Massachusetts (Mr. QUINCY) so often tells so much. But we must inquire, what is a just and necessary war? A war is just and necessary when waged to protect and defend the violated pecuniary interests of the country; or to defend and secure the sovereign rights and independence of a country; or, lastly and principally, to support and maintain the national honor. The last, indeed, embraces all the others; and, if I have distinguished, it is rather in conformity with custom, or for the purpose of elucidation than from any practical separation which I admit between the last and the former. But I am likely to incur the derision of the honorable gentlemen in the opposition by speaking of national honor. They seem not to have admitted the term into their vocabulary; they treat it as a new language; they remind me of the character of _Goldfinch_ in one of _Holcroft's_ plays, who, when he hears the Romans mentioned, exclaims, "Romans! Romans! who are they?" So the gentlemen, "national honor! what's that? what's that?" Yet, sir, strange as it may seem to the honorable gentlemen over the way, the maintenance of the principle of national honor, by which I mean that principle which animates and sustains an elevated fitness of character and conduct, is the only justifiable cause of war; and, if necessary, the principle ought to be maintained by all the sacrifices of war in its worst shape. No war is justifiable or necessary which is waged merely for pecuniary objects, if we can suppose such a war, for all wars involve expense and loss greater than the amount of any pecuniary objects for which they can be waged. On the ground of interest merely they would not, therefore, be justifiable; and there is to be superadded, what cannot be valued in money, the value of human life. But the value of every thing is founded on the security with which it is enjoyed. One unpunished violation of right provokes another and another, until all security is destroyed; and, therefore, it is necessary to resist given infractions of pecuniary right by sacrifices beyond the value of the right itself, because resistance is necessary to the security of all other pecuniary rights--nay, to the security of all other rights. Security of rights is a political thing; it is the protection of Government; it derives its value, and a great portion of its power, too, from a faithful and unrelaxed application of it to all the rights and interests of a nation; and is diminished in its value, and in its power also, by any failure to afford the protection which is due by Government to the subjects and the interests under its control. To abandon any interest is to abandon all, and to protect one is to protect all; war, therefore, waged to protect one political right is waged to protect all political rights; no war is, in consequence, made for any given right merely as such, but for all the rights and interests which are bound together in a nation under the social and civil compacts. To compare the expenditure and losses of war with the value of commercial objects, which may be the immediate cause of war, is to talk idly, and to forget the true end of all war and the first great purpose of Government--security. A great man (Sir James Mackintosh) has said, "the paramount interest of every State, that which comprehends all others, is security." Will you, then, it may be inquired, go to war to avenge the infraction of the smallest right under the protection of Government, and for this object jeopardize every other, and spill the blood of your fellow-citizens? Certainly not. There is a fitness which cannot be defined in anticipation, but which is easily discoverable when the occasion occurs, which determines when a war is necessary. It may depend upon the nature of the injury; on the character which the nation has acquired; on its ability to avenge the injury; on the character of the nation which has inflicted the injury, and a thousand other circumstances. The question ought always to be, What becomes the nation? What is due to the national honor? What is necessary to sustain an elevated fitness of character and conduct in the nation? If the injury sustained be one which cannot or will not probably be repeated, it is less necessary to avenge it. If the nation be poor and feeble, it may be obliged to submit to the violation of a great right. If it be great and powerful, it must sometimes resent a smaller injury; it may sometimes disdain to notice a considerable aggression upon its rights; in short, in no instance is the expense of the war a rule which will prove it just and necessary, or otherwise; in every instance is national honor, that is, a fitness of character and conduct, the rule by which its necessity and justifiable character are determinable. Generally when a nation is able to resist with effect the infraction of important pecuniary rights, it seems indubitable that an elevated fitness of character and conduct requires resistance. But this obligation is increased, and is less doubtful when any of the sovereign rights of a nation are infringed, as in gross and reiterated insults to the national flag, habitual violations of the personal liberty of its subjects, invasion of its territories, and the like; these are assaults upon its independence, and there is no room left for an inquiry into the fitness of resistance; it may indeed be supposed to change from a question of expediency to an act of necessity; it is a struggle for self-preservation; the nation acts upon a principle which is inherent in the meanest insect, and of which inanimate matter is not divested; the worm, when trodden on, writhes in resistance as well as anguish, and the reaction of inanimate matter seems to be the repulsive act of self-preservation. What, then, did an elevated fitness of character and conduct require of the American Government, in relation to Great Britain, at the moment war was declared? What does it still require? I repeat, the war is a just and necessary war. This will be proved by adverting to the causes of the war. What, then, were the causes of the war? They were principally new and before unheard-of blockades--the Orders in Council, which have been generally so called, by way of pre-eminence; the spoliations of our commerce under various unfounded and insulting pretexts, and the impressment of our seamen. I am not permitted by the circumstances under which I address you to go at length into any of these subjects. But I may ask, what on the ocean did we enjoy but by the sufferance of Great Britain? What insults, what injuries had we not suffered? When did they begin; when, though they may have been varied in character, were they relaxed in degree, and when were they probably to cease? Great Britain has been properly selected as the first object of our hostility. When a proposition was made to include France as well as Great Britain in the declaration of war, gentlemen on neither side of the House did support it. The opposition prints throughout the Union laughed it to scorn. Few men thought of resisting both at once. The voice of both parties appeared to be against it. The Government, obliged to resist, was obliged to select its enemy. Should France have been selected? With the blood of our citizens insultingly slaughtered without the slightest provocation, on the shores of our own territory, unatoned for till the moment of the declaration of war, with the habitual impressment of our seamen in every sea, with the continual and reiterated violation of your right to seek where you choose a market for your native produce, all before your eyes, and with no hope of a discontinuance of these injuries, we are told that we ought to have diverted our enmity from Great Britain, and directed it against France. Where, sir, could we attack France? Where are her colonies into which we could carry our arms? Where could we subjugate her provinces? Where are her ships?--where her commerce? Where could we have carried on against her any of the operations of war? Would the chivalry of gentlemen on the other side of the House have suggested an invasion of France? An honorable gentleman from New York, (Mr. GOLD) said it would not have required another man nor another ship, to have resisted France. But, why, I pray you? Because such a resistance would have been confined to the idle and nugatory act of declaring it. Effectual resistance would have been impracticable. Gentlemen would resist France, would declare war against France, merely to show their indignation at her perfidy and injustice; and here I confess my feelings go with the gentlemen--I would do so too, had we no other enemy to contend with. But if we had abandoned or deferred our resistance to the injuries of England and as a pretext for it assailed France, would not the act have been idle and weak? Would it not have been wicked, to borrow one of the epithets which gentlemen have applied to the war with England, so to have sported with the public feelings and the national resentment as to have declared war against France, the minor aggressor, whom we could not touch, and to have suppressed our resentment against Great Britain, whose injuries were unlimited and unceasing, and whom alone we could reach? But why, sir, are the injuries these nations have done contrasted, and those of the one made an apology for those of the other? Why are we partisans of either? Have we no country of our own? Is there a land upon the globe so fair, so happy, and so free? And, beholding and enjoying these blessings, "Breathes there a man with soul so dead Who never to himself hath said, _This is my own, my native land_!" Sir, I feel neither as a Frenchman nor Briton, but as an American. As a citizen of the United States, I bear no affection to any other country. If I have any feeling of partiality for either of the great belligerents, it is for the country, and the people of Great Britain. From them I draw my blood in a very short descent. But that nation is the injurer of my country, and I can see her in no other light than that of an enemy, nor can I find any apology for her in the injuries France has done us. Sir, the Government did right in discriminating between Britain and France, and selecting the former. It was the only mode of real practical resistance. The world would have laughed at us had we declared war against France, who was no longer able to injure us, whom we could not assail with effect, and have left the unceasing injuries of Great Britain to go on unresisted and unresented. The world would have considered it as a mere cover for our pusillanimity. I say, then, that the Government was not tricked into a war with Great Britain. It was commenced in the prosecution of the best and most deliberate policy. It was the only honorable and practicable course. If there has been an error, and I think there has, it was in not having long since resisted England. War against England should have followed the first embargo; that was a wise measure, but it could not endure forever; it carried the policy of commercial restriction upon the enemy as far as such a policy should ever be carried, which from its nature can only be temporary. It at the same time prepared the nation for war; it brought home your wealth and seamen; it brought home your vessels, and placed you in the attitude in which the nation ought to have been previous to war, and its termination ought to have been followed by immediate and vigorous war. The pulse of the nation was high, and the confidence of the people in their rulers and resources great. Distrust has grown out of the hesitation and timidity then manifested. If the embargo had been followed up by war, some of the greatest injuries we have since suffered would not have occurred. France would not have ventured to have seized and sequestered our vessels and property as she subsequently did. She was tempted to do it because she saw we would suffer and submit to any injury. Gentlemen say, that popular opinion was against the war. I deny it, sir. It was called for by popular opinion; and this will not be disproved, however soon popular opinion shall incline to peace, and gentlemen on the other side of the House regain the reins of power, as they are not unlikely to do, however just and necessary the war. Any man who thought with half the ability with which the gentlemen do, must have believed that in voting for war, he was probably surrendering himself politically a victim on the altar of his country; yet it is frequently declared, that the majority have declared this war to preserve their seats. They declared it against popular opinion, too, to preserve their seats, which they hold by the tenure of popular opinion! Are gentlemen serious? Look at the history of nations, and see if the war-makers have been generally the peacemakers. But war was prematurely declared, it is said, because we had not a regular disciplined army at the time. Preparation for operations on land must have been relative to the defence of our own territory, or the invasion of the enemy's territory. The militia are the proper and the adequate defenders of the soil on which they live; for this purpose we did not want any other army. They might have been made more extensively useful. I join not with their revilers--I wish that their usefulness had not been circumscribed by a doctrine subversive of the true principles of the constitution which was maintained on this floor. I rejoice that I combated that doctrine; yet I do not mean to consider them as a fit army of invasion. I acknowledge that we were not prepared with a regularly-disciplined army, qualified for the invasion and conquest of the enemy's country. But should we have been prepared by winter, the time to which gentlemen wished to have deferred the declaration of war? It is a truth that a Government like ours never will, and never can, be prepared for war in peace. The great and effective preparation for war must grow out of the progress and events of the war. Notwithstanding our disasters on land, I believe our preparation is greater, and our situation better, than it would have been had the war been deferred. We were to expect, in the commencement of the war, to suffer such misfortunes. Except in the affair of Detroit, nothing has happened which should cause us to blush: that disgrace, like the disgrace of the Chesapeake, will be the harbinger of glory--I take it as an omen of victory. I pledge myself, if the war continue it will be so in the event. As the war stands at this moment, we have suffered little, and we have humbled the pride of the enemy where it was most insulting. We have insured the confidence of the nation, from the seashore to the mountains beyond them, as far as our population reaches, in our naval ability. I ask the gentlemen on the other side of the House, whether we have not gained something in this respect by the war? In one word, who would now commence the war and take the chance of better success in preference to the actual fortune of the war since it has been declared. It was not prematurely declared. I now contend the war ought to be continued. Some gentlemen have thought fit to say in debate, that the only alleged cause of war was formed by the Orders in Council. But from their own act, their celebrated protest, I will prove the contrary. Impressment is there enumerated as among the causes of war, as it was in all the public acts of the time relative to the causes of war. Without more words, I am authorized in asserting that impressment was one of the principal causes of the war; and although had the Orders in Council been revoked, and their revocation known to us before war was declared, we would no doubt have temporized longer; yet this cause itself must in the end have produced war. It appears that very soon after the General Government went into operation, this practice was the subject of remonstrance; this was under the Administration of General WASHINGTON. It has been the subject of negotiation and remonstrance under every succeeding Administration. But it is alleged, because it was not settled in the Treaty of 1794, that it was not considered by General WASHINGTON as justifiable cause of war, and it is inferred that it ought not now to be considered as sufficient cause for the continuance of the war. What, sir, shall constitute cause of war? The spoliation of your property? Not so, say gentlemen, because the expenditure for redress will be greater than the injury sustained. The violation of the personal liberty of your citizens and the degradation of the ensign of your sovereignty? No, say gentlemen, General WASHINGTON did not consider these as sufficient cause of war. Will, then, any injury, or any combination of injuries, authorize or require national resentment? The reasoning of the gentlemen would lead us to a negative conclusion. But in their estimate of the actual causes of the present war, they appear to consider the business of impressment as trivial, and the Orders in Council as every thing. What, sir, will you go to war for property, the value of which is only relative, and which, compared with personal liberty, is worthless, and refuse to go to war for the personal liberty of the citizen? for that which is alike "Given to the fool, the vain, the evil-- To Ward, to Waters, Chartres, and the Devil!" You will wage war, and not to rescue your fellow-citizens from imprisonment and stripes? But however this subject was to be viewed before we were actually involved in war, it must now be put on a footing of certainty; if our claim be not secured it will be surrendered; to make peace without obtaining any security against the abuse of which we complain, would be to acquiesce in it, and to acquiesce in it would be to surrender the rights of the country. This was the reasoning of Mr. King, who in one of his communications to Government on this subject says, he has abandoned negotiation, because to acquiesce in the views of the British Government would be to surrender our rights. And shall I be obliged, sir, to come here with volumes of documents to prove the rights of the citizen; to demonstrate that the naval officers of Britain have not a right to incarcerate him; to drag him to the gangway and flog him? Shall I be obliged by a laborious process of reasoning to prove the obligation of Government to rescue him from such suffering? No, gentlemen generally have abandoned this ground, and say, that the impressment of our citizens is, under proper circumstances, justifiable cause of war; and the gentleman from North Carolina, (Mr. PEARSON,) who opened the debate on this subject says, that if a fit proposition, accompanied by means calculated to give it a fair chance of success, were tendered and did not procure a cessation of the practice of impressment, he would support the war. What is the proposition which he submits? That we shall prohibit from serving in our ships the seamen of Great Britain and other foreign seamen, and confine our crews to our own citizens. This being done he will support the war. I challenge gentlemen on the other side of the House to say distinctly to the people, for whom an honorable gentleman (Mr. QUINCY) has said this debate was intended, that this war should not be continued for the protection of our seamen; they will not, they dare not. But if they are against the continuance of the war, it is on that ground and no other. The honorable gentleman from Virginia (Mr. RANDOLPH) says, Great Britain has a right to insist on the services of her own subjects, and that England would not be England if she could not command them. I say that America will cease to be America if she suffers her to command them at the price of the liberty of her citizens and the honor of her flag. The same gentleman says, England will nail the flag to the mast and go to the bottom with it, rather than surrender the right of taking her seamen from on board our merchant vessels. I hope, sir, we shall imitate the noble example she sets us, and make every sacrifice rather than give up our citizens to bondage and stripes. But, say gentlemen, the public law of all nations on earth, ancient and modern, has denied the right of expatriation. Admit that they are correct, and for the purpose of the argument, I do admit that such is the general law. But what is this law as modified by the practice of nations? Every nation which has thus forbidden expatriation has at the same time granted naturalization, and the general practice of nations is undoubtedly the law of nations. Does not England naturalize foreigners? Does she not naturalize your citizens? If she does not do it as generally as you do, it is because it is not her policy to do so; it is enough that she naturalizes your seamen; it is enough that all nations have, at the same moment, forbidden expatriation and granted naturalization. The law must be the result of neither exclusively, but of both these practices. Mr. Burke, (the great Edmund,) who was certainly no innovator, denominates Charles XII. the murderer of Patkul. Patkul was born a Swedish subject and had repeatedly taken up arms against his Sovereign; he was adopted by Russia and had been her Minister at the Court of Poland. Charles XII., the Sovereign to whom his natural allegiance was due, obtained possession of his person and put him to death--this act Mr. Burke denominates murder! Governments which have naturalized foreigners have protected their naturalized subjects, and the Government to whom the native allegiance of such subjects was due, though they have denied the right of expatriation, have not impugned the protecting interposition of the adopted sovereign. If they have, it has been considered as an act of unprincipled violence, and in the instance of Patkul has merited and received the denomination of murder. On this subject I will quote a single sentence from one of Mr. King's letters; he says, "it behooves the British Government to adhere to the principle of natural allegiance wholly, or renounce it wholly." Contending themselves for the right of naturalization, can the British Government deny it to others? On the part of this Government sufficient evidence of its pacific and accommodating disposition appears in its offer to surrender every thing it can, consistently with national faith. On the part of Britain a protraction of the war, by refusing to meet us on the terms proposed, can proceed from no other motive than a determination to continue that abuse of power which she has inflicted and we have suffered so long. The ground taken by this country is what we must insist upon keeping, and I doubt not we will succeed if we contend for it as we ought. The informality of the negotiation between our Chargé d'Affaires and the British Government has been mentioned as a cause of its failure. If there had been an amicable disposition on the part of the British Government, the authority would have been considered ample. If there be not an amicable disposition we will negotiate in vain. We must fight, or we shall never succeed in obtaining a recognition of our rights. I will advert to one argument of the gentleman from New York, (Mr. EMOTT,) who has examined this subject with ability. It is that one which appeared to me to make the greatest impression on the House. He said he had examined the voluminous document on the subject of impressment, which was printed during the last session by order of the House, and that it did not appear from that document that more than ninety-three American seamen had been impressed in the year 1809; from which I believe every one who heard him inferred that it was proved affirmatively by that document, that no more than ninety-three American seamen, who were named therein, were impressed in that year. Now, what is the fact? The document does not state in one case, perhaps of eight or ten, when the impressment took place, and there are one thousand five hundred and fifty-eight persons named in that document. Of course the gentleman could not be authorized to say that but ninety-three, or any other precise number, were impressed in 1809. All those, the date of whose detention is not stated, may have been impressed in 1809. It is probable much the greatest portion was. A more particular examination of this point of inquiry will prove the magnitude of the evil. From the 1st of April, 1809, to the 30th of September, 1810, a period of eighteen months only, a single agent of this Government, in London, received one thousand five hundred and fifty-eight applications from impressed seamen. How many were unable to apply? Men imprisoned on board ships of war, scattered over the ocean and on distant stations, how could they apply to Mr. Lyman in London and give in their names? The number impressed must have been great, indeed, when a single agent in the short space of eighteen months, registered the names of one thousand five hundred and fifty-eight applicants. Of this number a part was discharged, acknowledged to be Americans beyond the possibility of denial; a small number is detained as being born in England, and the remainder are detained under various pretexts--such as supposed to be born in England, being on distant stations, having consular certificates proving them Danes, Swedes, &c.; as if they had any better right to take from on board an American vessel a Swede or a Dane than an American citizen. Even their own doctrine goes to assert a right to seize none but their own subjects. I ask, now, whether the impression made by the gentleman from New York was a just one? Whether it does not appear probable that at least one thousand of those contained in this list were impressed without even a plausible pretext? But if in a single statement I make out a result so variant from the statement of the gentleman, I beg you and the public to test the other statements of the gentleman in the same way. Not, sir, that the gentleman made the statement with any unfair intention, for no man is more honorable or correct--he has my highest esteem--but, it will show how liable we are to err--nay, how prone we are to err when our feelings and habit of thinking run with our argument. So much for impressment. It is an abuse such as cannot be tolerated by an independent nation. It is one which ought to be resisted by war. The question was then taken on the passage of the bill, and decided in the affirmative--For the bill 77, against it 42, as follows: YEAS.--Willis Alston, jun., William Anderson, Stevenson Archer, Daniel Avery, Ezekiel Bacon, David Bard, Josiah Bartlett, Burwell Bassett, William W. Bibb, William Blackledge, Robert Brown, William A. Burwell, William Butler, John C. Calhoun, Francis Carr, Langdon Cheves, James Cochran, John Clopton, Lewis Condict, William Crawford, Richard Cutts, Roger Davis, John Dawson, Joseph Desha, Samuel Dinsmoor, Elias Earle, William Findlay, James Fisk, Meshack Franklin, Thomas Gholson, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, Aylett Hawes, John M. Hyneman, Richard M. Johnson, Joseph Kent, William R. King, Abner Lacock, Peter Little, Aaron Lyle, Thomas Moore, William McCoy, Samuel McKee, Alexander McKim, Arunah Metcalf, Samuel L. Mitchill, Jeremiah Morrow, Hugh Nelson, Anthony New, Thomas Newton, Stephen Ormsby, Israel Pickens, James Pleasants, jun., Benjamin Pond, William M. Richardson, Samuel Ringgold, Thomas B. Robertson, John Rhea, John Roane, Jonathan Roberts, Ebenezer Sage, Lemuel Sawyer, Ebenezer Seaver, John Sevier, Adam Seybert, Samuel Shaw, George Smith, John Smith, William Strong, John Taliaferro, George M. Troup, Charles Turner, jr., William Widgery, and Richard Wynn. NAYS.--John Baker, Abijah Bigelow, Hermanus Bleecker, James Breckenridge, Elijah Brigham, Epaphroditus Champion, Martin Chittenden, Matthew Clay, Thomas B. Cooke, John Davenport, jr., William Ely, James Emott, Asa Fitch, Thomas R. Gold, Charles Goldsborough, Edwin Gray, Jacob Hufty, Richard Jackson, jun., Philip B. Key, Lyman Law, Joseph Lewis, jr., William Lowndes, Archibald McBryde, James Milnor, Jonathan O. Mosely, Joseph Pearson, Timothy Pitkin, jun., Elisha R. Potter, Josiah Quincy, John Randolph, William Reed, Henry M. Ridgely, William Rodman, Daniel Sheffey, Richard Stanford, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Uri Tracy, Laban Wheaton, Leonard White, and Thomas Wilson. _Ordered_, That the title be, "An act in addition to the act, entitled 'An act to raise an additional military force, and for other purposes.'" FRIDAY, January 15. _Land claims in Missouri Territory--Confirmation of private claims--Pre-emptions._ Mr. HEMPSTEAD observed, that he had certain resolutions to submit, on which, as they were somewhat in detail, he would ask the liberty to make a few remarks. Under the second section of the first act for adjusting land claims in the Territory of Louisiana, (now Missouri,) each actual settler was entitled to six hundred and forty acres of land, together with such other and further quantity as heretofore had been allowed for the wife and family of such actual settler, agreeably to the laws, usages, and customs of the Spanish Government. A majority of the Board of Land Commissioners in that Territory were, under that section, so liberal in their grants, that it excited the alarm of Government. This alarm, sir, was soon transferred to the people, and has continued ever since; because a majority of the Board passed from one extreme to the other, and granted, in many instances, only one hundred, one hundred and fifty or two hundred arpens, where they had before granted seven or eight hundred arpens. The grants for the smaller quantities are contained in the lists of grants, and being final against the United States, would never come before Congress, unless upon petitions from individual claimants. Other boards of Commissioners, acting under the same law, have granted to the actual settler in every instance, when the law had been complied with, six hundred and forty acres; and it would seem to me, sir, that the people of the Missouri Territory are entitled to the same justice. The second resolution is to provide as well for rejected claims, in which no testimony has been adduced, as when testimony has been received; and to prevent individual claimants from loading our table with petitions. The mode pointed out will present all claims to Congress at one time. With these observations I shall submit the resolutions for the sanction of the House: _Resolved_, That the Committee on the Public Lands be instructed to inquire into the expediency of authorizing, in favor of the claimants, the re-examination of the grants of land made by the board of Commissioners for ascertaining and adjusting the titles and claims to land in the district of Louisiana, under the second section of the act, entitled "An act for ascertaining and adjusting the titles and claims to land within the Territory of Orleans and the district of Louisiana," passed the 2d of March, 1805; and also the grants made by the Recorder of Land Titles for the Territory of Missouri, under that part of the third section of the act, entitled "An act further providing for settling the claims to land in the Territory of Missouri," passed the 13th of June, 1812, which provides for settlement of donation rights in all cases where the quantity of land granted is less than six hundred and forty acres; and that said committee have leave to report by bill, or otherwise. _Resolved_, That the Committee on the Public Lands be instructed to inquire into the expediency of authorizing the Recorder of Land Titles for the Territory of Missouri to receive testimony in all the claims to land in which none has been adduced, and which are rejected in the report made by the late board of Commissioners for ascertaining and adjusting the titles and claims to land in the then district of Louisiana, now Territory of Missouri; and, afterwards, to arrange into classes, according to their respective merits, as well the claims embraced by this resolution, as the other rejected claims mentioned in said report, and made abstracts containing the substance of the evidence in support of such claims, and such other information and remarks as may be necessary to a proper decision thereon, and report on said claims to the General Commissioner of the Land Office; and that said committee have leave to report by bill, or otherwise. _Resolved_, That said committee be instructed to inquire into the expediency of granting the right of pre-emption to actual settlers on the public lands in the said Territory of Missouri; and that said committee have leave to report by bill, or otherwise. The resolutions were then agreed to. MONDAY, January 18. Two other members, to wit: from Massachusetts, PELEG TALIMAN; and from Pennsylvania, WILLIAM PIPER, appeared, and took their seats. _Encouragement to Privateer Captures._ The House resolved itself into a Committee of the Whole on the bill "relating to captures." [The bill provides that compensation shall be allowed to the officers and crews of our public vessels, for vessels of the enemy necessarily destroyed at sea after their capture.] Mr. BASSETT stated to the House the considerations by which the Naval Committee had been induced to report this bill. It grew more immediately out of the case of the Guerriere destroyed by the Constitution--a case precisely in point. Such a principle as that which the bill proposed, he believed, had been engrafted in the British service. It was at least required by equity and sound policy, where the public service required the destruction of a vessel for fear of recapture by the enemy in its disabled state, that some compensation should be made to the captors in lieu of that which would have accrued from the sale of the vessel had it been brought into port. Mr. H. CLAY (Speaker) spoke in opposition both to the principles and details of the bill. He was disposed to believe the principle unprecedented in any other country; but even if it were not, he thought it ought not to exist in this country. It would have the effect to make it the interest of the captor, unless the vessel should be immediately on the coast, or in the very mouth of our rivers, to destroy the captured vessel. On consulting the underwriters, gentlemen would find the premium required on bringing in a vessel of any description from any considerable distance, would be equal to one-half her value; and, as proof of it, Mr. C. instanced the high insurance even from Charleston and New Orleans, along our own coast, to a northern port. The strongest possible temptation would, therefore, be offered by giving half the value of the destroyed vessel to the captors in case of her destruction. Mr. C. moved to strike out the first section of the bill. Mr. BASSETT replied to Mr. CLAY, and defended the bill, on the ground of expediency and of precedent. In the British nation, he said, rewards were always liberally bestowed on skill and valor, and they must always be by every country that wishes to encourage these qualities in its citizens. The principle did exist in the British service, not by statutory, but by admiralty regulations; and in all such cases rewards had been liberally dispensed. Mr. BACON opposed the bill as inexpedient and unprecedented. To show that it went beyond the British legal provisions in that respect, he quoted a statute of that nation which allows to the captors of vessels so destroyed, as the bill contemplates, a bounty of five pounds for every man found alive on board said captured vessels, the aggregate to be equally distributed among the crew of the captors. Further, he believed, that Government had not gone. Mr. CHEVES on this remarked, that every encouragement was afforded to British naval officers, by their Government, as well by promotions to higher office and to nobility, &c., which were not known in this country, as by pecuniary rewards and pensions, not in all cases by statutory, but by Executive sanctions. He was disposed to be liberal to our officers, to foster our rising navy. But, though friendly to the principle, he objected to the particular details of the bill, which he thought susceptible of modifications which would be better made in select committee than in the House. He, therefore, moved that the committee rise. Mr. QUINCY objected to the principle of the bill, which he thought fundamentally questionable. He was for providing specially by statute for each case after its occurrence, where the circumstances of the case required an exercise of liberality by Congress, and to legislate generally for future occurrences. The committee then rose, reported progress, and were refused leave to sit again; and, On motion of Mr. CHEVES, the bill was recommitted to the Naval Committee. TUESDAY, January 19. _Privateer Pensions._ The House then resolved itself into a Committee of the Whole, on the bill regulating pensions to persons on board private armed ships. [This bill directs that the two per cent. reserved in the hands of consuls and collectors, in pursuance of an act of June last, respecting private armed vessels, &c., be paid into the Treasury, to constitute a fund for pensions to persons disabled on board private armed vessels, of the mode and degree of which disability the log book of each vessel is to be evidence.] Mr. BURWELL moved to strike out the vital section of the bill, with a view to try the principle. In support of the motion, he remarked that he conceived it improper to adopt a principle so extremely liable to abuse as this, especially when pensions had been refused to at least equally meritorious sufferers during the Revolution. The evidence which the log book of a vessel would afford, would be so very liable to error, and so indefinite, as not to be entitled to that conclusive weight given to it by the bill. The proper course, he conceived, would be, to leave the subject open to the annual disposition of Congress; which was now the case with certain other pensions. Mr. BASSETT stated, in reply, that, at the last session, two per cent. having been reserved from the wages of the seamen on board private armed vessels, for the avowed and declared purpose of constituting a fund for pensions to the wounded, this bill now merely indicated the mode of carrying this provision into effect. The money had been reserved by the collectors and consuls, and as it was never the intention of Congress to make them a present of it, it remained for Congress to direct the mode of its distribution. If the principle was incorrect, it ought to have been objected to when the pledge was given by the House last session on the subject. The question on striking out the section was negatived by a very small majority; and the committee rose and reported the bill. Mr. STOW made a motion going to confine the pensions allowed by the bill to such as should be disabled in actual service, and spoke in support of his motion. Mr. MCKIM opposed the motion. The services rendered by the privateers were valuable to the country and ought to be encouraged. The duties on prize goods, he said, brought into the port of Baltimore alone, had amounted to three hundred and fifty-four thousand dollars. This showed the importance of this system in a pecuniary point of view. Mr. STOW questioned the benefit rendered to the public interest by privateering, and said he was in favor of letting this fund accumulate, and first see whether there was sufficient to pension those having received known wounds in action, before they agreed to extend it to all casualties on board private armed vessels. Mr. LITTLE asserted the utility of privateers and their efficiency as a means of annoying the enemy, He bore testimony to the bravery they had displayed in all conflicts with the enemy, and to the injuries they had inflicted on his commerce. The enterprising individuals concerned in it ought to be encouraged; for, by the impediments to the prosecution of their enterprise, many had been already discouraged and had dismantled their vessels. If properly encouraged, they would scour every sea, however distant, and ransack every port and harbor in search of the enemy. He was in favor of exhibiting the most liberal disposition towards them. Considerable further debate took place on the amendment, which was at last agreed to by a very small majority. Mr. RHEA subsequently moved to recommit the bill to the same committee which reported it, for the purpose of amendment; and the bill was recommitted. WEDNESDAY, January 20. _Astronomical Observatory._ Mr. MITCHILL, from the committee to whom was referred the memorial of William Lambert, and the report made thereon by the Secretary of State at the last session, presented a bill authorizing the establishment of an Astronomical Observatory; which was read twice, and committed to a Committee of the Whole on Friday next. The report is as follows: On the 27th December, 1809, Mr. Lambert addressed the House of Representatives upon the expediency of establishing a first meridian for the United States at their permanent seat of Government. This was ordered for consideration to a select number of gentlemen, who, on the 28th March, eighteen hundred and ten, laid upon the table an able and learned opinion, accompanied with scientific calculations illustrative of the object. They concluded their investigation by recommending that provision should be made, by law, for determining, with the greatest accuracy, the distance between the City of Washington and Greenwich in England, and that the proper instruments should be procured. Afterwards, on the 23d January, 1811, the memorial was referred to a select committee; and, on the 23d of the ensuing February, that committee was discharged, and the memorial referred to the Secretary of State for his consideration. Conformably to the desire of the House, that officer wrote to the Speaker a letter which, after having been read, on the third day of July, 1812, was ordered to lie on the table. That letter was, on the 8th December last, ordered to the present committee, who have diligently weighed the matters which it contains. It is their opinion that astronomical observations are highly useful to a navigating and commercial people, already eminent for their progress in science and the arts, and who are laboring for the completion of their national dignity and splendor. The most ready method of obtaining the information to be derived from noting the phenomena of the heavens, is by the establishment of an observatory. This may be erected at the city of Washington. By such an institution, means may be adopted not only to fix the first meridian, but to ascertain a great number of other astronomical facts and occurrences through the vigilance of a complete astronomer. THURSDAY, January 21. The House met with closed doors; and, after being opened, another member, to wit, from New York, PETER B. PORTER, appeared, and took his seat. FRIDAY, January 22. _Encouragement to Privateers._ The House again resolved itself into a Committee of the Whole on the report of the Committee of Ways and Means on the petitions of Joshua Barney and Stephen Kingston. The resolution, reported by the Committee of Ways and Means, "that it is inexpedient to legislate upon the subject of the petitions," was disagreed to; and the following was reported to the House as a substitute thereto: "_Resolved_, That any right or claim of the United States to British property which may have been captured by American privateers, arising from forfeiture under any provision of the non-importation acts, ought to be relinquished for the benefit of the captors." The question on the original resolution was also disagreed to by a vote of the House. For disagreeing 61, against it 47. And the resolution proposed in Committee of the Whole as a substitute, was, as stated above, agreed to; and was referred to the Committee of Ways and Means to bring in a bill in pursuance thereof. _Impressed Seamen._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I transmit, for the information of Congress, copies of a correspondence between John Mitchell, Agent for American Prisoners of War at Halifax, and the British Admiral commanding at that station. I transmit for the like purposes copies of a letter from Commodore Rodgers to the Secretary of the Navy. JANUARY 22, 1813. JAMES MADISON. _Extract of a letter from John Mitchell, Esq., Agent for American Prisoners of War at Halifax, to the Secretary of State, dated_ "DECEMBER 5, 1812. "I cover you a copy of a correspondence, which took place in consequence of different applications I received, either by letter or personally, from persons detained on board His Britannic Majesty's ships of war in this place. "I formerly mentioned to you that the Admiral had assured me that he would discharge all the citizens of the United States who were in the fleet, and actually did discharge several. This induced me to think I should be correct, and in the perfect line of my duty, in sending him a list of the applicants to me, and requesting an inquiry to be made, and discharges granted to all who were citizens of the United States; I, therefore, covered him a list of the names now enclosed to you, which produced his letter to me of the same date, (December 1, 1812.) "I read it with surprise, because some of the men had informed me their captains had refused to report them to the Admiral. Now, if no one here was, or is, allowed to do it, their situation is hopeless. "It is not my place, sir, to reason with you on this business. _Proof of Nativity_, in his first letter, is a strong expression; and how few are in possession of it, and how many who cannot obtain it. "The second paragraph, in the second letter, prevents my interfering; and I have since been obliged to send a man away, requesting him to apply to his commanding officer." _Copy of a letter from John Mitchell, Esq., Agent for American Prisoners of War at Halifax, to Sir John Borlase Warren, dated_ DECEMBER 1, 1812. SIR: Since the sailing of the last cartels, in which you were pleased to send home several Americans, who had been in His Britannic Majesty's service, others who are now on board of the Centurion and Statira have requested of me to procure their discharge, and to be sent home. Will you, sir, have the goodness to direct an inquiry, and order the release of such as are citizens of the United States? Besides the enclosed list, I am told there are others whose names I have not. I have the honor to be, &c., JOHN MITCHELL, _Agent_. _Copy of a letter from Admiral Sir John Borlase Warren, to John Mitchell, Esq., Agent for American Prisoners of War at Halifax, dated_ DECEMBER 1, 1812. SIR: I have the honor to acknowledge the receipt of your letter of this date, respecting some men, therein mentioned, on board His Majesty's ships under my command, said to be citizens of the United States, and in reply, beg to acquaint you, that whenever I have received representations from the captains of His Majesty's ships of any part of their crews being citizens of America, with sufficient proof of their nativity, I have directed their discharge from the service. I must observe to you that I cannot permit the interference of any applications from men belonging to His Majesty's ships, but through their commanding officers: and in your department, of prisoners of war only, I shall at all times be most happy to receive your communications. I have the honor to be, &c., JOHN B. WARREN. _Copy of a letter from John Mitchell, Esq., Agent for American Prisoners of War at Halifax, to Admiral Sir John Borlase Warren, dated_ DECEMBER 3, 1812. SIR: I had yesterday the honor to receive your letter, dated the 1st instant, in which you observe that you cannot permit the interference of any application from men on board of His Britannic Majesty's ships of war, but through their commanding officers. Desirous of conforming as far as possible to established regulations, permit me the honor to inquire of your Excellency, if by your letter I am to understand that I am not to receive the applications of seamen declaring themselves citizens of the United States, who are on board of His Majesty's ships of war, and communicate the same to you? If this is the meaning, I shall most certainly conform, though I must lament the regulation. I have the honor to be, &c., J. MITCHELL, _Agent, &c._ _Copy of a letter from Admiral Sir John Borlase Warren, to John Mitchell, Esq., Agent for American Prisoners of War at Halifax, dated_ DECEMBER 4, 1812. SIR: In reply to your letter, dated yesterday, I have to acquaint you that whenever any address is made relative to men on board His Majesty's ships, it must be by the commanders of such vessels direct. I cannot permit any application by other persons in time of war, but in the above mode. It will always afford me pleasure to attend to your wishes in any respect relative to the situation or exchange of prisoners, or to afford any aid or relief in my power. I have the honor to be, &c., JOHN B. WARREN. _From Commodore Rodgers to the Secretary of the Navy._ U. S. FRIGATE PRESIDENT, BOSTON, _Jan. 14, 1813_. SIR: Herewith you will receive two muster books, of His Britannic Majesty's vessels Moselle and Sappho, found on board the British packet Swallow. As the British have always denied that they detained on board their ships of war American citizens, knowing them to be such, I send you the enclosed, as a public document of their own, to prove how illy such an assertion accords with their practice. It will appear by these two muster books that so late as August last, about an eighth part of the Moselle and Sappho's crews were Americans; consequently, if there is only a quarter part of that proportion on board their other vessels, that they have an infinitely greater number of Americans in their service than any American has yet had an idea of. Any further comment of mine on this subject, I consider unnecessary; as the enclosed documents speak but too plainly for themselves. I have the honor to be, &c., JOHN RODGERS. Hon. PAUL HAMILTON, _Secretary of the Navy_. The Message and documents were read, and referred to the Committee of Foreign Relations. TUESDAY, January 26. _Treasury Notes._ On motion of Mr. CHEVES, the House resolved itself into a Committee of the Whole on the bill reported by the Committee of Ways and Means authorizing the issuing of Treasury notes for the service of the year 1812. [The bill authorizes the President of the United States to cause to be issued Treasury notes to the amount of five millions of dollars, and also, if he shall deem it expedient, to issue a further amount, not exceeding five millions of dollars, provided the amount issued under the latter provision shall be deemed and held to be in part of the loan of sixteen millions of dollars authorized by the bill passed this day. The notes to bear interest at the rate of five and two-fifths per cent. per annum, to be redeemed one year after the day on which they are respectively issued.] The bill having been read through by sections, and no objection having been made thereto, the committee rose and reported it. The bill was ordered to be engrossed for a third reading without division; and then the House adjourned. FRIDAY, January 29. A new member, to wit, from New York, THOMAS P. GROSVENOR, elected to supply the vacancy occasioned by the resignation of Robert Le Roy Livingston, appeared, produced his credentials, was qualified, and took his seat. _Grant to Daniel Boone._ Mr. HEMPSTEAD, from the committee to whom were referred the petition of Daniel Boone, and the resolutions of the Legislature of Kentucky in his behalf, made a report; which was read twice, and committed to a Committee of the Whole on Monday next. _Territory of Missouri._ Mr. MCKEE, from the select committee which was directed to inquire into the propriety of amending the act for the government of the Missouri Territory, reported against any amendment. The report is as follows: That they have had the subject to them referred under their consideration, and have examined the act above recited. The principal difficulty suggested to the committee, occurring in the execution of the law, appears to relate to the election of a delegate to represent the interest of the Territory in the Congress of the United States. By the first clause of the 6th section of the act it is provided "that the House of Representatives shall be composed of members elected every second year, by the people of the said Territory, to serve for two years." By the 13th section of the said act it is also provided "that the citizens of the said Territory entitled to vote for Representatives to the General Assembly thereof, shall, at the time of electing their Representatives to the said General Assembly, also elect one delegate from the said Territory to the Congress of the United States." It also appears that an election was held in pursuance of the act on the second Monday of November last, when a delegate was elected. It appears that doubts have been entertained whether the delegate thus elected can legally hold his seat after the 3d day of March next, and an alteration of the law has been suggested as necessary to obviate the difficulty. It seems to the committee that the first clause of the 6th section, and the 13th section of the act, taken together, leaves no room for doubt, but evidently fixes the period for which the delegate may hold his seat at two years from the second Monday of November last; and it follows, as a necessary consequence, that the delegate elected in pursuance of the law, and for the term of two years, cannot be deprived of his right to a seat by any subsequent law. It also appears to the committee that the Territorial Legislature are furnished, by the 7th section of the act, with competent power to change the time of holding elections so as to obviate any difficulty that may occur in the subsequent elections of a delegate. The committee, therefore, recommend the following resolution: _Resolved_, That the act entitled "An act providing for the government of the Territory of Missouri," requires no amendment. _By Benjamin Howard, Governor of the Territory of Louisiana, Commander-in-Chief of the Militia thereof, and Superintendent of Indian Affairs, in and over the same_: A PROCLAMATION. In discharge of those duties enjoined on the Governor of this Territory by an act of the Congress of the United States of America, approved the 4th of June, 1812, entitled "An act providing for the government of the Territory of Missouri," I have made the following arrangements, preparatory to the new organization of Government to be instituted by the said act, and which will commence its operation on the first Monday in December next; that is to say; I have divided the future Territory of Missouri into five counties, excluding from the civil jurisdiction of each of said counties any tract or tracts of country which may fall within their respective general limits, as hereinafter set forth, the Indian title to which may not have been extinguished. That portion of territory situated north of the Missouri River, and usually known by the name of the Forks, as lying between that river and the river Mississippi, shall compose one county, and be called the county of St. Charles. That portion of territory bounded by the Missouri river on the north; by the Mississippi on the east; on the south by the Platin creek, from its mouth to its source; thence by a west line to the Missouri river, or to the western boundary of the Osage purchase; and on the west, by the said western boundary of the Osage purchase, shall compose one other county, and be called the county of St. Louis. That portion of territory bounded by the county of St. Louis on the north; on the east by the Mississippi; on the south by Apple creek, from its mouth to its source; thence by a due west line to the western boundary of the Osage purchase; and on the west, by the said western boundary of the Osage purchase, shall compose one other county, and be called the county of St. Genevieve. That portion of territory bounded on the north by the south limit of the county of St. Genevieve; east by the Mississippi; west by the western boundary of the Osage purchase; and south by that line which formerly separated the commanders of Cape Girardeau and New Madrid, and known more recently as the boundary between these two districts, shall compose one other county, and be called the county of Cape Girardeau. That portion of territory bounded north by the south limit of the county of Cape Girardeau; east by the Mississippi; south by the 33d degree of north latitude, (the southern boundary of this Territory as settled by act of Congress;) west by the western boundary of the Osage purchase; and from the southern extremity thereof to the 33d degree of north latitude aforesaid, shall compose one other county, and be called the county of New Madrid. And I do hereby make known and declare that elections of Representatives, to serve in the General Assembly of the future Territory of Missouri, shall be holden throughout the Territory, on the second Monday of November next, at the respective seats of justice of the present districts, which are hereby declared to be the seats of justice for the several future counties respectively except that the town of New Madrid shall be the seat of justice of the future county of New Madrid, which said future county will comprehend the present districts of New Madrid and Arkansas; to wit: at the town of St. Charles for the future county of St. Charles, at which time and place there will be chosen for the said county two Representatives. At the town of St. Louis for the future county of St. Louis, at which time and place there will be chosen four Representatives. At the town of St. Genevieve for the future county of St. Genevieve, at which time and place there will be chosen for the said county three Representatives. At the town of Cape Girardeau for the future county of Cape Girardeau, at which time and place there will be chosen for the said county two Representatives. And at the town of New Madrid for the future county of New Madrid, at which time and place there will be chosen for the said county two Representatives. And I do, moreover, make known and declare that on the said second Monday of November next, an election will also be holden, at the several seats of justice aforesaid, for a Territorial delegate to the Congress of the United States. And I do enjoin and require that these elections be holden by the sheriffs of the present districts, or in their absence, or inability to act, by the coroners respectively; that the said sheriffs or coroners shall take the polls of those qualified to vote; that the clerks of the courts of the present districts, or their deputies, shall respectively write down the names of the voters in a fair and legible manner, and that the presiding judges of the courts of the present districts respectively, or in case of absence, or inability to act, the next in commission shall attend, and be judges of the qualification of the voters; that the said elections shall be opened at the respective seats of justice aforesaid, at or before 9 o'clock in the morning of the said second Monday of November, and close at sunset of that day. And the sheriffs or coroners respectively, after having caused the proces-verbal of said polls to be signed by the clerks or their deputies, who may have respectively committed the same to writing, and countersigned by the judges respectively who may have attended the elections, will themselves certify the same, explicitly stating, at large, the names of the persons elected as Representatives, and the name of the person having the greatest number of votes as a delegate to Congress, and make immediate return thereof to the Governor of the Territory. And I do, lastly, enjoin and require, that the Representatives of the several future counties, so as aforesaid to be elected, do convene in the town of St. Louis on the first Monday in December next, as provided by the act of Congress aforesaid. In testimony whereof, I have caused the seal of the Territory of Louisiana to be hereunto affixed. Given under my hand, at the town of St. Louis, the first day of October, in the year of our Lord one thousand eight hundred and twelve, and of the independence of the United States of America the thirty-seventh. BENJAMIN A. HOWARD. For the information of the people who are called on to decide the right of suffrage by the Governor's proclamation, we have inserted below that part of the law which defines the qualification as well of the Representative as of the voter. "No person shall be eligible or qualified to be a Representative, who shall not have attained to the age of twenty-one years, and who shall not have resided in the Territory one year next preceding the day of election, and who shall not be a freeholder within the county in which he may be elected; and no person holding an office under the United States, or an office of profit under the Territory, shall be a Representative. In case of vacancy, by death, resignation, or removal or otherwise of a Representative, the Governor shall issue a writ to the county wherever a vacancy may be as aforesaid, to elect another person to serve the residue of the term. That all free white male citizens of the United States above the age of twenty-one years, who have resided in said Territory twelve months next preceding an election, and who shall have paid a territorial or county tax, assessed at least six months previous thereto, shall be entitled to vote for Representatives to the General Assembly of said Territory." The report was ordered to lie on the table. _Arming and Classing the Militia._ The House resumed the consideration of the bill supplementary to the act for arming the militia, and for classing the same. Mr. FITCH moved to strike out all that part of the bill which provides for the classing the militia of the United States. Mr. ELY said that he was totally opposed to the classification of the militia; that it had been pressed upon us from year to year, by gentlemen from the Southern section of the Union, he knew not why; that he thought the effects of the measure in rendering the militia efficient, for constitutional purposes, were very trifling and unimportant. From some cause or other, the militia in the Southern States are very little improved, and gentlemen seemed to imagine that classification was to supply the place of arms, of organization, of discipline, of every thing. This would not prove to be the case. He said that the laws heretofore made had proved in the Northern States, particularly in Massachusetts, abundantly sufficient to answer all the purposes of forming an efficient militia; but they have been followed up by State regulations which had been enjoined by penalties sufficiently severe. These, he had understood, had been in a great measure neglected in the South, and this was the reason that the militia were so imperfect; and if the States would not enforce those laws, he had no idea they would enforce this. The sums expended on the militia in Massachusetts, both from the public treasury and by private individuals, is very great--that State has furnished more than sixty artillery companies, with their pieces, ammunition carriages, and every thing appurtenant to them, complete; the artillery and cavalry are completely uniformed and equipped, and are required so to be by law; for the greater part, the infantry are in uniform complete, are well armed, and are equal in all respects to any militia in the world. That this classification would add to their burdens, and they had already burdens enough; that it would be an insidious thing, and so considered by the militia, and go to destroy the harmony of the militia corps. That if gentlemen in the South thought it would be useful, let their State governments, who were the best judges, adopt as much of it as they pleased. No one would object to that, if they did not interfere with existing regulations. All will acknowledge that the State Governments have it in their power, and it has been, in some form or other, exercised by some of the States, and particularly by Pennsylvania--this measure will interfere with their favorite mode. He said he was disposed to have the militia in the South improved, but he prayed gentlemen not to adopt a measure calculated to injure one part of the militia, more than it would benefit the other; he hoped the provisions for classing the militia would be stricken out of the bill. Mr. WILLIAMS and Mr. STOW opposed the motion. The question was decided by yeas and nays: For striking out 58, against it 65. The bill was then ordered to be engrossed for a third reading. SATURDAY, January 30. A new member, to wit, from North Carolina, WILLIAM KENNEDY, elected to supply the vacancy occasioned by the death of Gen. Thomas Blount, appeared, was qualified, and took his seat. _Constitution and Guerriere._ The engrossed bill providing compensation to Captain Hull, and the officers and crew of the frigate Constitution, for the capture and destruction of the British frigate Guerriere, was read a third time. [The bill authorizes a grant of $50,000.] Mr. MCKEE opposed the passage of the bill, on the ground that the President has no authority to expend the public money in gratuitous grants to individuals. Mr. SAWYER stated, that he wished to make some remarks in reply to Mr. MCKEE, but, from the lateness of the hour, and an indisposition with which he was oppressed, it was not now in his power. He therefore moved an adjournment, which was carried--ayes 54. MONDAY, February 1. Mr. SEAVER presented a petition of Benjamin Waterhouse, medical doctor, of Boston, stating that he is willing, and wishes to undertake the inoculation of the army of the United States with the "kine-pock inoculation," and praying the aid and patronage of Congress in that undertaking.--Referred to the Committee on Military Affairs. _Constitution and Guerriere._ The House resumed the order of the day on the bill making compensation to the officers and crew of the Constitution for the destruction of the frigate Guerriere. The bill being on its third reading-- Mr. SAWYER spoke in support of the bill, and in reply to Mr. MCKEE. Mr. DAWSON.--Mr. Speaker: The bill which is now on your table, and which I hope will soon receive your signature, was drawn from a resolution, or rather the part of a resolution which I had the honor to offer you at the very commencement of the session. When I offered you that resolution, I did hope, and I did believe, that it would have received the immediate attention and unanimous approbation of this House; that regardless of those punctilios which too often shackle the best intentions, and do injury to the best causes, and in compliance with the sentiments and feelings of the nation, we should have immediately expressed our own, thereby giving force to that expression, and have rendered that tribute which is justly due to undaunted valor, and to modest merit; that we should have declared our admiration, and the high sense we entertain of the gallant conduct of the defenders of their country's flag, and the defenders of her rights, and while we gave to some testimonials of our approbation, we should have yielded to all that which is justly due. In this expectation I have been wofully disappointed; doubts, difficulties, and delays have taken place; commitment has succeeded commitment, and so many amendments, or rather alterations, have been made to the original resolution, that I can scarcely call it my own; it has received the fostering care of so many stepfathers that I am almost constrained to disown it as illegitimate; but as it is natural to protect that which we call "our own," although all the features do not please us, so I shall vote for that bill although all its provisions do not please me. Some gentlemen, with a liberality which I neither envy, nor shall I imitate, are willing to load those brave tars with all the praise, with all the applause, which the pride of language can bestow, or which a resolution written on paper gilded with gold can confer; and, becoming their own judges, they think _that_ ample compensation for all the hardships they have suffered, for all the dangers they have encountered, for all the wounds they have received. With all the respect which I feel for these honorable gentlemen, and the high value which I set on their good opinion, I do not think it ample compensation to the brave and indigent tars who have boldly fought your battles, and generously sacrificed their interest for your good; they merit some more substantial stuff than air; they have acquired for you, sir, they have given to your enemy, something more substantial. Others there are, who are well pleased to bestow on the brave officers who have distinguished themselves, some testimonials of our approbation--some insignia of their merit. With these gentlemen I most perfectly agree, and most cordially voted in favor of the bill for that purpose. But, while I remember the gallant captain who proudly steps the quarterdeck, I will not forget the sailor boy, "who whistles o'er the lee," or the aged mariner who fathoms the deep, and on whom, when the battle rages, danger has no more effect than the foaming surge which surrounds him has on the hard rock, when it dashes and breaks against its side; they all, sir, are entitled to your applause and gratitude; they all demand your justice; and to render that justice is the object of the bill now on your table, as I will presently show, and which had it passed at an earlier period of the session, as I did expect it would, your "Constellation" would not have lain for weeks within your view for the want of men, and is still, I believe, in your waters, but would long since have been at sea, and would have added new trophies to those already won. The Secretary of the Navy, I mean the late Secretary, in whose veracity and integrity I have the highest confidence, who carries to his retirement the best wishes of my heart, and under whose auspices this gallant exploit was achieved, and Commodore Hull, whose disinterestedness seems only equalled by his valor, have informed us that "the Guerriere" when she went into action was worth two hundred thousand dollars, and that she had articles on board to the value of one hundred thousand dollars. She was one of the finest frigates in the British navy, well manned, and commanded by one of their most experienced and gallant captains! This ship, our frigate, "the Constitution," of equal force, attacked, vanquished, and captured, after a short, though one of the most brilliant actions recorded in the naval history of any country; thereby giving certain presages of future glory, and a character to our rising navy, coeval almost with its existence, and setting an example which other officers and crews, equally emulous of fame, have since imitated, and have obtained the same laurels, which will never fade. Agreeably to the act for the better government of the Navy of the United States, the ship, with all articles on board her, became their prize; they might have used it to their best advantage; they might have brought her into port, and divided the whole among themselves; but apprehensive that from the crippled state of the prize she might again fall into the hands of your enemy; nay, sir, that your own frigate might be endangered in protecting and convoying her, they with that liberality, with that magnanimity which marks the character of the sailor, determined to destroy her, thereby sacrificing their interest for your good. And here, Mr. Speaker, let me ask what other class of men in our society can you find who would have acted thus nobly? I fear, sir, we shall search for them in vain. I am sure, sir, that we shall not find them among those who daily violate your laws, relieve your enemy of his surplus manufactures, or supply him with your provisions, and then come here and receive indemnification, remission for the crimes which they have committed. And, sir, what is the mighty boon which these brave and indigent tars ask from you? or rather was it that I, in the name of justice, demanded for them?--it is one-sixth part in value of that property--of their property, which they have sacrificed for your good, rather than it should fall into the hands of your enemy. And will you refuse it? No, you will not, you cannot, you dare not. You will not, because every consideration of policy, and the best interest of our country, forbid it; you cannot, because every feeling which ennobles the human heart, and I think I know yours, forbids it; you dare not, because justice forbids it; and you dare not do an act so flagitious. Mr. Speaker, during the very lengthy discussions which have taken place in this session, I have remained silent in my seat; this has not arisen from a supineness of disposition, or from an inattention to the public business, or the public welfare, but in the hope, that when gentlemen had exhausted all their eloquence, they would have permitted us to progress, and to place our country in the situation demanded by the crisis; and I should have indulged that disposition which I have to be silent, had not an attempt been made to deprive the brave and needy tars of that which is justly due to them; but under these circumstances I could not restrain my feelings, and have to regret that I cannot give to them that utterance which the occasion calls for. [The argument against this bill was, that it would be setting a precedent which would be considered authoritative in future cases; that it was giving a donation for an act of duty only, though gallantly performed. It was rewarding a service, which, had it been rendered on land, would have received no remuneration, as experience had proved in the case of the Tippecanoe expedition; and that it was contrary to justice to confer pecuniary rewards on one class of our citizens in exclusion of others. In favor of the bill it was stated that the captured vessel, if she had been brought into port, would have produced six times the amount now proposed to be allowed to her; and that the captors ought not to incur a total loss from the destruction of the vessel, which the fear of her falling into the hands of the enemy had rendered necessary to the public service. It was urged, that if any _city_ in the United States had to legislate on this subject, five times as much would have been awarded as is now proposed. All the gentlemen who spoke, offered the tribute of their respect to the gallantry and conduct of the officers and seamen of our public vessels.] The question on the passage of the bill was decided in the negative--yeas 55, nays 59. WEDNESDAY, February 3. _Virginia Military Bounty Lands._ The House then proceeded to consider the report of the Committee of the Whole on the report of the select committee touching the claims of the officers and soldiers of the Virginia line of the Revolutionary army to military bounty lands. The question was then taken to concur with the Committee of the whole House in their disagreement to the resolution recommended by the select committee, which is as follows: _Resolved_, That provision should be made for securing to the officers and soldiers of the Revolutionary army of Virginia, on State establishment, in the land or sea service of the said State, the bounty lands which were promised to them, either by a law or resolution of the said Commonwealth, out of the lands not otherwise appropriated, and lying on the northwest side of the river Ohio, within the Virginia cession, to be of good quality, according to the true intent and meaning of the promises made on the part of Virginia, and that, if a sufficiency of good land within the meaning of the aforesaid engagement cannot there be found, that their bounties shall be satisfied out of any other public land of the United States, not heretofore otherwise appropriated: And was determined in the affirmative--yeas 66, nays 41. FRIDAY, February 5. _Encouragement to Public and to Private Armed Privateers._ On motion of Mr. MCKIM, _Resolved_, That the Committee on Naval Affairs be instructed to inquire into the expediency of relinquishing, in favor of the officers and crews of the public armed ships of the United States, a greater portion of the value of prizes than they are now by law entitled to; and, also, to inquire into the expediency of providing further encouragement to equipping and employing private armed vessels of war against the ships and commerce of the enemy; and that the committee have leave to report by bill, or otherwise. WEDNESDAY, February 10. A message was received from the Senate informing the House that, owing to the indisposition of Mr. GAILLARD, the Senate have appointed Mr. FRANKLIN the teller, on their part, at the counting of the votes of the Electors for President and Vice President of the United States. _Counting of Electoral Votes._ The hour of 12 having arrived, the Senate entered the Hall of Representatives, preceded by their President, Secretary, Sergeant-at-Arms, and Doorkeeper, and proceeded to seats prepared for them--the members of the House having risen to receive them, and remaining standing until all had entered. The President of the Senate took a seat which had been prepared for him at the Speaker's right hand, and the Secretary of the Senate was placed beside the Clerk of the House. The Tellers--Mr. FRANKLIN of the Senate, and Messrs. MACON and TALLMADGE of the House--were seated at a table in front of the Speaker's chair. The President of the Senate then proceeded to open and hand to the Tellers the sealed returns from each State, which were severally read aloud by one of the Tellers, and noted down and announced by the Secretaries of each House. The votes having all been opened and read, the following result was announced from the Chair, by the President of the Senate, viz: +----------------+-------------------------+-------------------------+ | | President. | Vice President. | | +------------+------------+------------+------------+ | STATES. | James | De Witt | Elbridge | Jared | | | Madison. | Clinton. | Gerry. | Ingersoll. | +----------------+------------+------------+------------+------------+ | New Hampshire | - | 8 | 1 | 7 | | Massachusetts | - | 22 | 2 | 20 | | Rhode Island | - | 4 | - | 4 | | Connecticut | - | 9 | - | 9 | | Vermont | 8 | - | 8 | - | | New York | - | 29 | - | 29 | | New Jersey | - | 8 | - | 8 | | Pennsylvania | 25 | - | 25 | - | | Delaware | - | 4 | - | 4 | | Maryland | 6 | 5 | 6 | 5 | | Virginia | 25 | - | 25 | - | | North Carolina | 15 | - | 15 | - | | South Carolina | 11 | - | 11 | - | | Georgia | 8 | - | 8 | - | | Kentucky | 12 | - | 12 | - | | Tennessee | 8 | - | 8 | - | | Ohio | 7 | - | 7 | - | | Louisiana | 3 | - | 3 | - | | +------------+------------+------------+------------+ | Total | 128 | 89 | 131 | 86 | +----------------+------------+------------+------------+------------+ RECAPITULATION OF ELECTORAL VOTES. _For President of the United States._ JAMES MADISON, of Virginia, 128 DE WITT CLINTON, of New York, 89 --- 217 _For Vice President of the United States._ ELBRIDGE GERRY, of Massachusetts, 131 JARED INGERSOLL, of Pennsylvania, 86 --- 217 The President of the Senate, in pursuance of the joint resolutions of the two Houses, then announced the state of the votes to both Houses of Congress, and declared "That JAMES MADISON, of the State of Virginia, was duly elected President of the United States, for four years, to commence on the fourth day of March next; and that ELBRIDGE GERRY was duly elected Vice President of the United States, for the like term of four years, to commence on the said fourth day of March next." The two Houses then separated, and the Senate returned to their Chamber. THURSDAY, February 11. A message from the Senate informed the House that the Senate have appointed a committee, on their part, to join such committee as this House may appoint on their part, to wait upon the President of the United States, and to inform him of his re-election, for four years, to commence on the fourth day of March next. _Regulation of Seamen._ The House resumed the consideration of the bill excluding foreign seamen from the service of the United States. Mr. PITKIN'S motion to strike out the first section of the bill, for the purpose of inserting a proposed amendment, being still under consideration, considerable discussion took place on it, but it was eventually withdrawn to give way to the following motion. Mr. RIDGELY moved to strike out of the first section all the words in brackets, as follows: SEC. 1. _Be it enacted, &c._, That from and after the termination, by a treaty of peace, of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ as seamen, or otherwise, on board of any public vessel of the United States, or of any vessel owned by citizens of the United States, or sailing under their flag, any person or persons, except natural born citizens of the United States, or citizens of the United States at the time of such treaty being made and concluded, [or persons who, being resident within the United States at the time of such treaty, and having previously declared, agreeably to existing laws, their intention to become citizens of the United States, shall be admitted as such within five years thereafter in the manner prescribed by law.] After some conversation, the motion was negatived by yeas and nays--for it 40, against it 80. SATURDAY, February 13. _Encouragement for Privateering--Bounty for Prisoners._ Mr. BASSETT, from the Committee on the Naval Establishment, made a report relative to the expediency of affording greater encouragement to privateering. The report is as follows:-- That, in relation to the first inquiry, they find that, by the British statutes of the 13th and 27th of George the Second, the whole prize of each and every public armed vessel is given to the officers and crews making the capture; and they find this principle published by British proclamation, in relation to the present war with the United States. The laws of the United States, vol. 3, page 360, direct that, if a capture be made by an American public armed vessel, of equal or superior force, the capturing vessel shall have the whole; in all other cases of capture, one-half is distributed to the officers, and the other half is paid to the Commissioners of the Navy Pension Fund, pledged, first, for the payment of pensions, and the surplus to be disbursed for the comfort and benefit of seamen. This fund for Navy pensions amounts to something more than two hundred thousand dollars, yielding an annual interest of fifteen thousand dollars; and the amount of pensions is from seven to eight thousand dollars; leaving a yearly balance of seventeen thousand dollars in favor of the fund, and this without the addition of the prizes made this war, which are known to exceed one hundred thousand dollars, and will probably amount to two hundred thousand dollars, so as to double the fund; while only four persons have been added to the list by the war, to receive twenty-one dollars. From the above it appears, that, from the old pension list, the amount of pensions is little more than three per centum on the amount of prizes. Were five per cent. from the future prizes, to be added to this fund, on past experience it would promise an adequate sum for the payment of pensions. Your committee, however, concluded that it would not do to rely conclusively on past experience, and, on the ground of certainty, deemed it best for the fund to remain as established for another year, when more experience would give more confidence to the decision. As this report is intended to bring the subject under the view of the House, with the hope that it will not be lost sight of at the next session, it will be proper here to add, that, with some of the committee, the idea was entertained that ten per cent. should be withheld from distribution, viz.: five per cent. for the pension, and five for the navy hospital fund; in which not only the imbecility of decrepitude, but the imbecility of infancy should always find an asylum. On the other branch of the inquiry, your committee give their fullest attestation to the utility and importance of privateers. If, at other times and in other countries, the effect of individual exertion has been distrusted, the unexampled gallantry of our citizens, in that way, since the declaration of war, assures us that, with Americans, even the individual arm can make an efficient impression on the foe. The mode, however, of giving encouragement, they found not free from difficulty. As least liable to objection, they recommend that a bounty be paid for every prisoner brought in; and, that this proposition may be regularly before the House, they report a bill. Mr. BASSETT, from the Naval Committee, then reported a bill allowing a bounty to privateers. [Allowing a bounty of ---- dollars for each person they bring in.] Twice read and committed. _Additional General Officers._ On motion of Mr. WILLIAMS, the House resolved itself into a Committee of the Whole on the bill authorizing the appointment of additional general officers in the Army of the United States. [The bill provides for the appointment of ---- additional Major Generals, and ---- Brigadier Generals.] The following letters from the Secretary of War were read: ADJUTANT GENERAL'S OFFICE, WASHINGTON, _December 23, 1812_. SIR: Before I reply to your question, "how many major generals and brigadiers are necessary for an army of thirty-five thousand men?" it may not be amiss to state what is believed to have been the proportion of officers of these grades in the Revolutionary army, and what is understood to be the proportion, at this time, in European armies. In the first army of the Revolution, raised in 1775, we had a commander-in-chief, four major generals, and eight brigadiers. In 1776, five brigadiers were promoted to the rank of major generals, and twenty-three brigadiers appointed. In 1777, six brigadiers were promoted to the rank of major generals, and three major generals and eighteen brigadiers appointed. The loss of papers in the War Office, by fire, in 1800, renders it impossible to say, with precision, at what particular periods many of these general officers left the service; but it is within my recollection that, on the 28th of June, 1778, fourteen major generals, and sixteen brigadiers, were actually in service of the United States. Yet, by referring to the official letters of General Washington, in 1778 and 1779, it will be seen that a further increase of general officers was often and warmly recommended. The main army, under the immediate command of General Washington, it is believed, never amounted to thirty-five thousand men, and it is by no means certain that this number was ever in service at one and the same time, in the whole of what was designated "the continental army." Yet, at no period, between the first of May, 1777, and the close of the war, had we less than thirty general officers in service. It was deemed necessary, in the Revolution, and it is understood to be the general practice in Europe, at this time, to have at least one brigadier general for every two thousand men, and one major general for every four thousand. In this country we have never had a grade between the commander-in-chief and that of major general; hence it was found necessary, in the "continental army," to give to the senior major general the command of the right wing, and to the next in rank, that of the left, which, from the limited number of general officers, often left a division to a brigadier, a brigade to a colonel, and a regiment to a subordinate field officer; but, in Europe, this difficulty is obviated by the appointment of general officers of higher grades. From the best information I have been able to obtain on this subject, I have no hesitation in saying that eight major generals, and sixteen brigadiers, to command the divisions and brigades of an army of thirty-five thousand men, is the lowest estimate which the uniform practice of France, Russia, and England, will warrant, and that this is much below the proportion of officers of these grades actually employed in the army of the Revolution. As you have not required my opinion whether it be necessary to have a higher grade than that of major general, I have not deemed it proper to touch this subject, and have confined myself to the number of major generals and brigadiers deemed necessary to command the divisions and brigades of an army of thirty-five thousand men. It may not, however, be improper to remark that, if it is intended to have no higher grade than that of major general, their number should be increased to eleven; so as to give one for the chief command, one for each wing, and one for each division of four thousand men. I am, sir, very respectfully, yours, &c. T. H. CUSHING, _Adj't Gen._ The Hon. SECRETARY OF WAR. WAR DEPARTMENT, _Feb. 10, 1813_. SIR: In reply to the letter you did me the honor to write to me, on the 5th instant, by direction of the Committee on Military Affairs, I respectfully submit the following opinions: 1st. That an increased number of general officers is essential to the public service. The number of regiments provided for by law, is, two of light dragoons, three of heavy artillery, one of light artillery, one of riflemen, and forty-five of infantry, making, together, fifty-two regiments. The simplest organization is ever the best. Hence it is, that, as a regiment consists of two battalions, so a brigade should consist of two regiments, and a division of two brigades. This sphere of command will be found in practice, sufficiently large. The management of two thousand men in the field, will be ample duty for a brigadier, and the direction of double that number will give full occupation to a major general. To enlarge the sphere of command in either grade would not be a mean of best promoting the public good. Taking these ideas as the basis of the rule, and taking for granted, also, that our ranks are filled, the present establishment would require twenty-five brigadiers and twelve major generals. But the latter admission requires qualification, and, under existing circumstances, it may be sufficient that the higher staff should consist of eight major generals, and sixteen brigadiers. The general argument, on this head, might be fortified by our own practice during the war of the Revolution, and by that of European nations at all times. Believing, however, that this view of the subject has been already taken by the adjutant general, in a late communication to you, I forbear to do more than suggest it. 2. The recruiting service would be much promoted, were the bounty in land commutable into money, at the option of the soldier, and at the end of his service. This modification would be addressed to both descriptions of men--those who would prefer money, and such as would prefer land. I need hardly remark that bounties, at the close of service, have many advantages over those given before service begins. The former tie men down to their duty; the latter furnish, if not the motive, at least the means of debauch and desertion. Another, and a public reason, for the preference, may be found in the greater convenience with which money may be paid at the end, than at the commencement of a war. I have the honor to be, with great respect, &c. JOHN ARMSTRONG. Hon. D. R. WILLIAMS, _Chairman Com. on Military Affairs_. The bill authorizing the appointment of additional general officers in the Army of the United States, was then read a third time, and passed by yeas and nays: for the bill 95, against it 30. MONDAY, February 15. _Suspension of Non-Importation._ Mr. CHEVES, from the Committee of Ways and Means, made the following report:-- The Committee of Ways and Means report: That they have deemed it to be their duty, that the public service may not suffer and that the public credit may be duly supported, to look beyond the ways and means of the present year, and to take into consideration the revenue which may be wanted for the year 1814. That an estimate of the probable amount of the revenue which will accrue under existing laws, and be receivable within that year, has been submitted to Congress in the Annual Report of the Secretary of the Treasury made during the present session. That, comparing the amount thereof with the sums which will probably be required by a prudent regard to the public credit, it appears to the committee indispensably necessary to make a further provision; that this may be done by a partial suspension of the non-importation acts, which will not greatly lessen their injurious effects upon the enemy, by an additional duty on foreign tonnage, and by the imposition of internal taxes and duties: That, in their opinion, all these means will be necessary to supply the revenue which will be wanted: That it is impracticable, during the present session, consistently with a due attention to the other business of the nation, to enact the laws necessary to embrace the last-mentioned object; but that this may be done without difficulty and without a delay which will be injurious either to the public credit or the public service, by an earlier meeting of Congress than the constitutional period, which it will be the duty of Congress, or the Executive branch of the Government, to fix at such time as shall be deemed most proper and expedient: That it is, however, necessary that the suspension of the non-importation acts which is contemplated should be enacted at the present session of Congress: and for this purpose and the imposition of additional duties on foreign tonnage, they beg leave to report a bill. They also report herewith a correspondence between the Secretary of the Treasury and this committee on the subject of this report. _Letter from the Chairman of the Committee of Ways and Means to the Secretary of the Treasury_: COMMITTEE-ROOM, Feb. 3, 1813. SIR: I am directed by the Committee of Ways and Means to request from you the favor of a reply to the following questions: 1. What, in your opinion, would be the probable amount of revenue applicable to the service of the year 1814, which would result from a modification or partial repeal of the non-importation acts, such as is suggested in your letter, of the 10th of June, 1812, addressed to the Committee of Ways and Means? 2. Is the modification suggested by that letter the best in your opinion that can be devised to obtain a given revenue, with the least possible diminution of the effects of the non-importation acts? If not, be pleased to suggest such alterations and improvements as occur to your mind. 3. Are there, in your opinion, any further legal provisions necessary, or will any be expedient, more effectually to enforce the non-importation acts, or to insure the more effectual collection of the revenue? 4. Would it, in your opinion, be advisable to increase the duty on foreign tonnage? If it would, to what amount? and what would be the probable addition to the revenue applicable to the year 1814 by such increase? I am, &c., LANGDON CHEVES. Hon. ALBERT GALLATIN, &c. _Answer of the Secretary._ TREASURY DEPARTMENT, Feb. 9, 1813. SIR: I have the honor to submit the following answer to the questions proposed in your letter of the 3d instant: 1. It is believed from the reasons stated in my letter of the 10th June last to the Committee of Ways and Means, that the amount of revenue applicable to the service of the year 1814, which would result from a modification of the non-importation acts suggested in the said letter, may be estimated at about five million of dollars, provided that modification takes place during the present session of Congress. 2. No better modification, for the purposes therein intended, has suggested itself than that proposed in the letter aforesaid. But it would seem requisite, for the same object, that no drawback should be allowed on the re-exportation of the merchandise which may be thus imported. 3. The most important legal provision which appears necessary to enforce the non-importation acts, is a positive prohibition of a restoration by order of court of merchandise, the importation of which is prohibited by law. It is also believed that it will be necessary to order all the cargoes of salt, particularly from Lisbon, to be discharged under the inspection of proper officers; and it appears reasonable that the expense should be defrayed by the importers. 4. It appears, in every point of view, highly desirable, that the duty on foreign tonnage should be increased. A duty of ten dollars per ton does not seem greater than what is required for the protection of American vessels. But I cannot form any correct estimate of the probable addition resulting to the revenue from such increase. Much would depend on the suppression of the trade carried on by American vessels with enemies' licenses. With respect to the necessity of providing an additional revenue for the year 1814, I beg leave to refer to the statements made and opinions expressed, when I had the honor several weeks ago to wait on the Committee of Ways and Means. And I beg leave to add that this necessity has been considerably increased by the subsequent expenditures authorized by law; amongst which must be particularly mentioned the act for the increase of the navy, and that for raising twenty thousand men for one year. Indeed, considering the general rate of expenditure resulting from the war measures which have been adopted, I am of opinion it will be necessary to recur both to a modification or repeal of the non-importation acts and to the proposed internal taxes, in order to provide a revenue commensurate with those expenses. When an additional revenue of five millions was believed sufficient, that opinion was predicated on the supposition made by the committee, that annual loans of only ten or twelve millions of dollars would be wanted. With a revenue of twelve millions of dollars for this year, it is ascertained that a loan of at least sixteen millions is necessary. I have the honor to be, &c., ALBERT GALLATIN. Hon. LANGDON CHEVES, _Chairman, &c._ The report and documents were read. Mr. CHEVES then introduced the bill above mentioned, which was read the first time, and ordered to be read a second time by a vote of 44 to 36. TUESDAY, February 16. Mr. MILNOR presented a memorial of the Pennsylvania Society for promoting the Abolition of Slavery, complaining that American vessels, navigated by American citizens, are engaged in the African slave trade, under the flags of foreign nations, and praying that Congress will take this subject into consideration, and pass such laws as will remedy the evil of which they complain.--Referred to a select committee; and Mr. MILNOR, Mr. ROBERTSON, Mr. GROSVENOR, Mr. WHEATON, and Mr. EARLE, were appointed the committee. _Naturalization Laws._ On motion of Mr. LACOCK, the House resolved itself into a Committee of the Whole, on the bill to amend the naturalization laws of the United States; which, having been amended in committee, was reported to the House. Mr. LACOCK moved to amend the bill by extending the naturalization of aliens to all those "who have heretofore or may within nine months hereafter, declare their intention agreeably to law to become citizens of the United States," and declaring that they may be admitted as such. This motion was negatived.--For the amendment 45, against it 48. On the question of concurrence with the committee in striking out the second section of the bill, which deprives of his right to the privileges of citizenship any citizen who shall depart from and remain without the limits of the United States for a term of two years--the yeas and nays were, for striking out the section 71, against it 43. The bill having been thus amended, was ordered to be engrossed for a third reading. WEDNESDAY, February 17. The engrossed bill supplementary to the several acts on the subject of a uniform rule of naturalization, was read a third time. Mr. BACON opposed its passage on the ground of the impolicy of encouraging the emigration of alien enemies during the existence of war; and concluded a short speech against the bill by moving its commitment to a Committee of the Whole. Mr. GRUNDY supported the motion on the ground of defects in the detail of the bill, which he wished to amend. The motion for recommitment was carried by a large majority, and the bill made the order of the day for Monday. _War Taxes._ Mr. LITTLE introduced the following resolution, with some remarks in favor of the policy of the non-importation act, to which he avowed himself to be very friendly, and to the suspension of which he was opposed: "_Resolved_, That the Committee of Ways and Means be, and hereby are, instructed to report to this House a bill or bills laying taxes for the support of the War." The question of considering of this resolution was decided in the affirmative, by yeas and nays--for consideration 66, against it 38. The resolution being thus presented to the House for its adoption-- A desultory debate of two hours took place on it, in the course of which a motion was made by Mr. GRUNDY to lay the resolution on the table, and negatived--60 to 45. The following was the course of the debate, which was of too irregular a nature to be reported entire: Mr. GRUNDY opposed the motion, because it had already been declared impracticable, by the Committee of Ways and Means, to act properly on the subject at the present session. Mr. LITTLE supported it, on the ground of his opposition to a suspension of the non-importation act, a measure which he reprobated as injurious to the manufactures of our country, and weakening our measures against Great Britain, of which he considered the non-importation act to be as powerful as any. Mr. STOW advocated the motion, because he wished the House to redeem the pledge given at the last session, that taxes would be laid at this, and to observe something like consistency in their proceedings. Mr. WEIGHT was also warmly in favor of the measure, and rather imputed blame to the Committee of Ways and Means for not having before acted on this subject, without waiting for instructions from the House. Mr. BIBB replied to the remarks which had been made in favor of the resolution. At the last session it was presumed that it would be necessary to lay taxes at this session; but the revenue accruing in the intermediate time had swelled so far beyond its anticipated amount as to render it unnecessary to levy taxes for the service of the ensuing year. Mr. WRIGHT again spoke in favor of the motion. Mr. RICHARDSON was decidedly in favor of a repeal or modification of the non-importation act, though he believed both that measure and the imposition of taxes would be necessary to supply the revenue. Mr. MCKIM was in favor of the motion, because he was opposed to the suspension or weakening of the non-importation act. Mr. CHEVES spoke at length in defence of the Committee of Ways and Means, and in demonstration of the impracticability of acting on the subject properly at the present session. Sitting day and night, and passing by all other business, a proper system of taxation could not be digested and put into the form of law before the end of the session. Two only out of fourteen of the bills it would be necessary to pass to carry the system proposed at the last session into effect, would require the whole of the present session to perfect them. The passage of a system of taxation, besides, would not obviate the necessity of the passage of the law suspending partially the non-importation act. It would require both. The taxes, he agreed, must be laid, but could not at the present session. Mr. WRIGHT replied. Mr. STOW again spoke. He would, if all the tax bills could not be passed, at least pass one, and break the charm which seemed to withhold the House from touching the subject. Mr. ARCHER moved to strike out the whole of the resolution, for the purpose of inserting an instruction to the Committee of Ways and Means to report a bill or bills, pursuant to the report of the Committee of Ways and Means on this subject, which passed the House on the 4th day of March, 1812. This modification of the motion was accepted by Mr. LITTLE. Mr. CHEVES then withdrew his objection to the motion, as it contained a definite instruction, and he felt a delicacy as a member of the Committee of Ways and Means in opposing it, though he was convinced it would be impracticable to pass the bills at the present session. Mr. ROBERTS opposed the motion, and expressed his regret that the discussion, which was fixed for to-morrow, should be forestalled by this resolution. Mr. JOHNSON warmly opposed the motion, as going to cast censure on a committee which had labored day and night in its vocation, and requiring them to originate measures which they had already declared it impracticable to act on at the present session, &c. Mr. WIDGERY also spoke against the motion, decidedly. The question on the adoption of the resolution as modified by Mr. ARCHER, was decided in the negative--yeas 47, nays 69. THURSDAY, February 18. _Encouragement to Privateering._ On motion of Mr. LITTLE, the House resolved itself into a Committee of the Whole, on the bill remitting the claim of the United States to certain goods, wares, &c., captured by the private armed vessels of the United States. Mr. MCKIM, under the belief that the bill as it now stands does not place privateers on a better footing than before, and does not answer the object intended by the resolution which produced it, proposed the following substitute by way of amendment: "That all right and claim of the United States to British property, which may have been captured by American privateers, arising from forfeiture under any provision of the act entitled 'An act to prohibit commercial intercourse between the United States and Great Britain and France and their dependencies, and for other purposes,' and an act entitled 'An act concerning the commercial intercourse between Great Britain and France and their dependencies, and for other purposes,' and an act supplementary to the last mentioned act, be, and the same is hereby relinquished for the benefit of the owners, officers, and crews of the privateers respectively that may have captured the same." This amendment produced some discussion, in which Messrs. MCKIM and WRIGHT advocated the motion, and Messrs. ROBERTS and FISK opposed it; when the question was taken and lost, without a division. Mr. ROBERTS moved to amend the bill, so as to include captures made of goods which were shipped anterior to as well as since the declaration of war was known in England. This amendment was adopted, 46 to 32. The committee then rose, reported the bill to the House, as amended; the amendments were concurred in, and the bill ordered to be engrossed and read a third time to-morrow, 47 to 39. FRIDAY, February 19. Another member, to wit, from New Hampshire, GEORGE SULLIVAN, appeared, and took his seat. _Encouragement of Private Armed Privateering._ The engrossed bill to release the claims of the United States on certain goods, wares, and merchandise, captured by private armed vessels, was read a third time, and debated. The bill was passed by the vote, by yeas and nays--for the bill 52, against it 38: _Capture of the Java._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I lay before Congress a letter, with accompanying documents, from Captain Bainbridge, now commanding the United States frigate "the Constitution," reporting his capture and destruction of the British frigate "the Java." The circumstances and the issue of this combat afford another example of the professional skill and heroic spirit which prevail in our naval service. The signal display of both by Captain Bainbridge, his officers, and crew, command the highest praise. This being a second instance in which the condition of the captured ship, by rendering it impossible to get her into port, has barred a contemplated reward of successful valor, I recommend to the consideration of Congress the equity and propriety of a general provision, allowing, in such cases, both past and future, a fair proportion of the value which would accrue to the captors on the safe arrival and sale of the prize. FEB. 22, 1813. JAMES MADISON. U. S. FRIGATE CONSTITUTION, ST. SALVADOR, _January 3d, 1813_. SIR: I have the honor to inform you that, on the 29th ultimo, at 2 P. M., in south latitude 13° 6', and west longitude 38°, about ten leagues distant from the coast of Brazil, I fell in with, and captured, His Britannic Majesty's frigate Java, of 49 guns, and upwards of four hundred men, commanded by Captain Lambert, a very distinguished officer. The action lasted one hour and fifty-five minutes, in which time the enemy was completely dismasted, not having a spar of any kind standing. The loss on board the Constitution was nine killed and twenty-five wounded, as per enclosed list. The enemy had sixty killed and one hundred and one wounded, certainly; (among the latter, Captain Lambert, mortally;) but by the enclosed letter, written on board this ship, by one of the officers of the Java, and accidentally found, it is evident that the enemy's wounded must have been much greater than as above stated, and who must have died of their wounds previously to their being removed. The letter states sixty killed and one hundred and seventy wounded. For further details of the action, I beg leave to refer you to the enclosed extracts from my journal. The Java had, in addition to her own crew, upwards of one hundred supernumerary officers and seamen, to join the British ships of war in the East Indies; also, Lieutenant General Hislop, appointed to the command of Bombay, Major Walker, and Captain Wood, of his staff, and Captain Marshall, master and commander in the British navy, going to the East Indies to take command of a sloop of war there. Should I attempt to do justice, by representation, to the great and good conduct of all my officers and crew, during the action, I should fail in the attempt; therefore, suffice it to say, that the whole of their conduct was such as to merit my highest encomiums. I beg leave to recommend the officers particularly to the notice of Government, and also the unfortunate seamen who were wounded, and the families of those brave men who fell in the action. The great distance from our own coast, and the perfect wreck we made of the enemy's frigate, forbade every idea of attempting to take her to the United States. I had, therefore, no alternative but burning her, which I did on the 31st ultimo, after receiving all the prisoners and their baggage, which was very tedious work, only having one boat left out of eight, and not one boat left on board the Java. On blowing up the frigate Java, I proceeded to this place, where I have landed all the prisoners, on their parole, to return to England, and there remain until regularly exchanged, and not to serve in their _professional capacities_, in any place, or in any manner whatever, against the United States of America, until said exchange is effected. I have the honor to be, &c. WILLIAM BAINBRIDGE. Hon. PAUL HAMILTON, _Secretary Navy_. TUESDAY, February 23. _The Frigate Constitution._ The House resolved itself into a Committee of the Whole on the bill, reported by the Naval Committee this morning, to compensate the officers and crew of the United States frigate Constitution for the destruction of the British frigates Guerriere and Java. [This bill provides that ---- dollars shall be paid out of the Treasury to Captain Hull and the officers and crews of the Constitution frigate, and a like sum to Captain Bainbridge and his crew, for their two gallant achievements; and appropriates a sum of ---- dollars therefor.] Mr. BASSETT moved to fill the first blank with fifty thousand dollars. After some conversation between Messrs. BASSETT, ELY, STOW, and MILNOR, on the propriety of making a general instead of a special provision on this head, as recommended by the President, the question on filling the first blank with fifty thousand dollars was carried in the affirmative, ayes 60. The second blank was then filled with one hundred thousand dollars. The committee rose and reported the bill; and the amendments were concurred in. The bill was then ordered to be engrossed, and read a third time. WEDNESDAY, February 24. _The Frigate Constitution._ The bill making compensation to the officers and crew of the frigate Constitution for the destruction of the British frigates Guerriere and Java, was read a third time and passed, by yeas and nays. For the bill 61, against the bill 39. _Order in Council._ The following Message was received from the PRESIDENT OF THE UNITED STATES: _To the Senate and House of Representatives of the United States_: I lay before Congress copies of a proclamation of the British Lieutenant Governor of the island of Bermuda, which has appeared under circumstances leaving no doubt of its authenticity. It recites a British Order in Council of the 26th of October last, providing for the supply of the British West Indies and other colonial possessions, by a trade under special licenses; and is accompanied by a circular instruction to the Colonial Governors, which confines licensed importations from ports of the United States, to the ports of the Eastern States exclusively. The Government of Great Britain had already introduced into commerce during war, a system, which, at once violating the rights of other nations, and resting on a mass of forgery and perjury unknown to other times, was making an unfortunate progress in undermining those principles of morality and religion which are the best foundation of national happiness. The policy now proclaimed to the world, introduces into her modes of warfare a system equally distinguished by the deformity of its features, and the depravity of its character; having for its object to dissolve the ties of allegiance and the sentiments of loyalty in the adversary nation, and to seduce and separate its component parts, the one from the other. The general tendency of these demoralizing and disorganizing contrivances will be reprobated by the civilized and Christian world; and the insulting attempt on the virtue, the honor, the patriotism, and the fidelity of our brethren of the Eastern States, will not fail to call forth all their indignation and resentment, and to attach more and more all the States to that happy Union and Constitution, against which such insidious and malignant artifices are directed. The better to guard, nevertheless, against the effect of individual cupidity and treachery, and to turn the corrupt projects of the enemy against himself, I recommend to the consideration of Congress the expediency of an effectual prohibition of any trade whatever, by citizens or inhabitants of the United States, under special licenses, whether relating to persons or ports; and, in aid thereof, a prohibition of all exportation from the United States in foreign bottoms--few of which are actually employed--whilst multiplying counterfeits of their flags and papers are covering and encouraging the navigation of the enemy. JAMES MADISON. FEBRUARY 24, 1813. The Message and accompanying documents were referred to the Committee on Foreign Relations. _Extra Session._ The House went into Committee of the Whole on the bill to alter the time of the next meeting of Congress--a motion being under consideration to fix on the fourth Monday in October. Mr. GRUNDY spoke in reply to some observations of Mr. JOHNSON (on yesterday) in favor of that day. Mr. G. was decidedly in favor of meeting in May; he believed it necessary to the support of public credit that the House should meet in May. Had not the Committee of Ways and Means first taught him that an early session was necessary with that view, if revenue should not, as it would not, be provided at this session, he should not have been found advocating an extra session. The House had been told by their financial committee, that it was indispensably necessary forthwith to provide a revenue; and that a paper system, without a foundation of permanent revenue, would involve the nation in disgrace or irretrievable ruin. Mr. G. quoted various reports of the Committee of Ways and Means to show that they had made such statements. With these facts staring him in the face, how could he do otherwise than urge an early session? If it was indispensably necessary a day or two ago to provide a revenue, what had since occurred obviating that necessity? Nothing. War had been declared, and it was the duty of those who declared it to provide the ways and means of carrying it on. Mr. G. protested against the idea which had been advanced of giving enormous interest for loans, and against accumulating a large debt, almost without the knowledge of the people on whom it would be saddled, and expressed his determination, as far as lay in his power, to go on and provide the ways and means. SATURDAY, February 27. _Power of Retaliation._ The bill giving to the President of the United States the power of retaliation in certain cases therein mentioned, was read a third time. A motion was made by Mr. QUINCY to adjourn--lost, 56 to 16. The bill was then passed by the following vote: YEAS.--Willis Alston, jr., William Anderson, Stevenson Archer, David Bard, William Barnett, Burwell Bassett, William W. Bibb, William Blackledge, William Butler, John C. Calhoun, Francis Carr, Langdon Cheves, James Cochran, John Clopton, Richard Cutts, John Dawson, Joseph Desha, Samuel Dinsmoor, Elias Earle, Meshack Franklin, Thomas Gholson, Peterson Goodwyn, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, John M. Hyneman, Richard M. Johnson, William Kennedy, William R. King, Peter Little, William Lowndes, Thomas Moor, William McCoy, Samuel L. Mitchill, James Morgan, Jeremiah Morrow, Hugh Nelson, Thomas Newton, Stephen Ormsby, Israel Pickens, William Piper, James Pleasants, jr., John Rhea, John Roane, Jonathan Roberts, Thomas B. Robertson, Adam Seybert, Samuel Shaw, George Smith, John Taliaferro, Charles Turner, jr., Robert Whitehill, David R. Williams, and Robert Wright. NAYS.--Abijah Bigelow, Elijah Brigham, Epaphroditus Champion, Martin Chittenden, James Emott, Asa Fitch, Thomas P. Grosvenor, Lyman Law, Jos. Lewis, jr., Jonathan O. Mosely, Elisha R. Potter, Josiah Quincy, William Reed, William Rodman, Daniel Sheffey, Richard Stanford, and Leonard White.[35] MONDAY, March 1. _Foreign Licenses._ An engrossed bill to prohibit the use of licenses or passes, issued under the authority of any foreign Government, was read the third time. And on the question, "Shall this bill pass?" it passed in the affirmative--yeas 59, nays 32. _Relations with France._ Mr. GOLDSBOROUGH, after observing on the propriety of the House having all the information on foreign affairs which was accessible; and remarking, also, that they were much in the dark in respect to our relations with France, moved the following resolution: _Resolved_, That the President of the United States be requested to cause to be laid before this House the French decree, purporting to be a repeal of the Berlin decrees, referred to in his Message of the 4th of November last; together with such information as he may possess concerning the time and manner of promulgating the same; and, also, any correspondence or information touching the relations of the United States with France, in the office of the Department of State, not heretofore communicated, which, in the opinion of the President, it is not incompatible with the public interest to communicate. And on the question to agree to the same, it passed in the affirmative--yeas 102, nays 4. Mr. GOLDSBOROUGH and Mr. KENNEDY were appointed a committee to present the said resolution to the President. On motion, the House adjourned. TUESDAY, March 2. _Non-Exportations in Foreign Bottoms._ The House again resolved itself into a Committee of the Whole, on the bill prohibiting the exportation of certain articles therein specified, in foreign vessels. Mr. CLAY spoke at considerable length in favor of this bill, as forming a complete system, connected with one which passed the House the other day, prohibiting the use of foreign licenses on board vessels of the United States, suited to the present relations of the United States, and to the proper action on the enemy. Mr. ROBERTSON spoke as follows: Mr. Chairman, I do not often trespass on the patience of the House, but I request their attention whilst I state a few of the reasons which compel me to oppose the bill now under consideration. I am the more disposed to do this, because my opposition arises from considerations in a great measure peculiar to myself, and because I differ with gentlemen in the correctness of whose opinions I usually concur. Without, then, considering the principles it involves, I reject this bill, because it is not in fact what it professes to be; it is not a restrictive measure; its provisions may operate prejudicially on ourselves, but cannot affect the enemy. In one of two general systems, I might go along with gentlemen. Let us have non-importation, non-intercourse, and embargo--thus the restrictive system may have its full bearing; let us refuse to purchase manufactures of the British; let us refuse to furnish them with provisions, then we may be consoled for the privations which we ourselves must experience, by reflecting on the great evils which we inflict on the enemy. I can but smile at the patriotism of honorable gentlemen, who affect to starve the English by refusing to buy their manufactures, whilst they inundate the army, the navy, the colonies of that nation, with a profusion of all the necessaries and luxuries of life--they will starve a few miserable manufacturers, whilst they industriously feed their armed men. With the most glaring and barefaced inconsistency, they object to admitting into our markets any the minutest article of British manufacture, that the inhabitants may perish for the want of means to purchase bread; whilst bread is exported with a hope that it should, indeed a perfect certainty that it will be consumed by this same people. I cannot concur in these half-way measures. I voted for a repeal of the non-importation act. I hoped that commerce, sufficiently hazardous and fettered by the present state of the world, would cease to be shackled by ourselves. I hoped, that now the sword was drawn, we should carry on war in the usual and accustomed manner--that the Government would be aided by the receipt of revenue arising from duties and imposts--that the people would be thus partially relieved from taxes--that the nation would be strengthened and inspired by an accession of wealth, now more than ever necessary. But whatever, sir, might be my opinion of this bill, viewed as a restrictive measure; for other considerations it meets with my decided disapprobation. We prohibit neutrals from clearing out from our ports with the productions of our country, whilst our own vessels are left free to do so. We deny to them that commerce, which as a neutral we formerly enjoyed. Heretofore we complained of the injustice of belligerents, and now that we are engaged in war, and that too for _neutral rights and free trade_, we are about to practise similar abuses. Aware that some apology would be deemed necessary, we call it a municipal regulation; it may be so--and perhaps we are borne out by strict law; but we attempt a justification on the ground of cutting off our enemy from supplies, of which he stands in need, and which, notwithstanding his perilous situation, he dares to hope to receive through a train of insolent artifices, derogatory to the integrity of the Union, and disgraceful to those with whom they shall prevail. Now, sir, if the measure proposed could in any way counteract his views--if it went the full length of preventing him from procuring the various articles which his necessities require, I confess it would be inflicting a punishment, which not only the laws of war would authorize, but which the unprecedented baseness of his late attempt most loudly calls for; but no such effect will be produced. For what is there to prevent our vessels from transporting the products of the United States to Amelia, Pensacola, St. Bartholomews, there to be deposited, and thence carried in neutral or British bottoms to Jamaica, the Bahamas, or wheresoever else they may be wanted? And again, if, notwithstanding the hostile attitude in which we stand in relation to each other England is compelled to encourage a trade by license, will not her necessities equally induce her to connive at exportation? Can it be doubted, that her armed vessels would not be instructed to allow our provisions to pass unmolested, when, by pursuing a contrary conduct, she would be starving her own colonies? And is it not clear that a traffic, which the war prevents from being direct, would continue to be carried on, as it is at present, through intermediate ports? Mr. Chairman, the present scheme seems to me to be merely calculated to produce vexation and embarrassment at home; to operate with peculiar hardship on neutral rights, without inflicting on the enemy any injury commensurate with these evils. Sir, if gentlemen wish to reap the full effect of a restrictive system, that system must be rigid and complete. Let our ports be sealed; let there be neither egress nor ingress; let us neither buy nor sell, and let us prepare to bear the positive burdens of active war. No section of our widely-extended Union could then complain of _peculiar_ oppression. The plan would present itself to us, recommended, at least, by the generality of its operation; by the impartiality of its character. But, if this cannot be done, if the shipping interests of some of the States, and the manufacturing establishments of others, must be encouraged, and if others still must sell their wheat and flour, let us pursue the opposite course; let us sweep restrictive measures by the board; thus should we enjoy all the advantages which would result to the Government from imposts, all the benefits that would accrue to individuals from exports. In either of these modes of proceeding I might concur; but I cannot consent to the plan now submitted, nor acquiesce in the wisdom or policy of our existing regulations. They are not promotive of the general welfare, but, on the contrary, are ruinous to the interests of that portion of the Union whose interest it is peculiarly my duty to protect. Yet, I cannot help observing that, however under their oppressive operation commerce languishes, and Southern agriculture is completely annihilated, they are tolerated by the Eastern States, because they promote their domestic manufactures, and impoverish and embarrass the Government; and they are advocated and supported by the Middle States, because they consider, or affect to consider them, as very patriotic; because they inflict privations, which, by-the-by, they do not feel; and, finally, because, nevertheless, they are enabled to sell off, at excellent prices, the productions of their farms. Thus, sir, a feast is spread before us; but it is served up, however splendidly and abundantly, in shallow dishes; and, while the foxes of the Eastern and Middle States lap up the soup with great dexterity, the storks of the Mississippi, Mobile, and Altamaha, look on, perhaps with admiration, but certainly with no satisfaction whatever. While, sir, the spleen of hostility towards the Government is gratified, while the manufacturing establishments of the East are promoted, while the middle section of the Union disposes of, at high prices, the abundant harvest of their fields, what becomes of the commerce of our country? What fate befalls the agriculture of the South? Our cotton rots on the stalk. From this proscription of foreign manufactures, the grower of the raw material is irretrievably ruined. Possibly he may sell an inconsiderable portion of his crop, for contemptible prices, to domestic manufacturers, while he is compelled to buy, at enormous rates, the articles which his wants require. If he wishes to sell, he finds no competition among purchasers. Does he find it necessary to purchase, he suffers equally from the want of competition among those who sell. A debate of considerable length took place, in which Mr. CALHOUN supported the bill, though opposed to the amendment made on motion of Mr. QUINCY in Committee of the Whole. Mr. GROSVENOR spoke as follows: Mr. Speaker: When I had the honor to address you, on a measure which has finally passed this House, I stated, at some length, my reasons for believing that the Government had no serious intention to pass the bill now before you. But, sir, from a furious zeal, this day manifested in a certain quarter, to drive the measure through this House, I fear I was mistaken. I therefore deem it an indispensable duty, in the name of the commercial and agricultural districts which I represent, to enter my solemn protest against this new project of the Government. I shall not enter into any argument, to show the impolicy, the injustice, and the danger of such a measure, considered as a measure of non-exportation. The task has been most ably and successfully performed by an honorable gentleman from South Carolina, (Mr. LOWNDES;) he has shown, that connected with the maritime power of the enemy, and with other bills already passed this House, this measure has all the blasting qualities, without even the few equivocal benefits of a broad restrictive system; and he has demonstrated the irreparable mischiefs which must result from such weak and mongrel measures. His reasoning has not been met--it cannot be refuted--I will not weaken its effect on the House, by attempting to enforce it. My principal object in rising, was to examine the grounds upon which the honorable gentleman from South Carolina, (Mr. CALHOUN,) who last addressed you, has rested his justification of the measure. He has assured us, that it is not at all intended as a part of any new system; that its object is in no respect a prohibition of free and fair exportation. Sir, whatever gentlemen may intend, it is too palpable for denial, that this measure is, in truth, a restrictive and an anti-commercial measure, and in conjunction with the license bill already passed, must operate (as far as such weak and unnatural measures can operate) as a broad and iron system of non-exportation. But, sir, what are the intention and the objects of the bill according to the view of that honorable gentleman: "To avenge insult"--"to retaliate on the enemy his attempts to destroy us"--"to carry to his own lips his own poisoned chalice." And where are these insults, these injuries, these vital attempts of the enemy to be found? Henry's celebrated mission, after rioting for a time on the spoils of the Treasury, has found the tomb of the Capulets. And although its ghost seems to haunt the honorable gentleman from South Carolina, yet sure I am, that a thing of air would not have inspired him with all those bitter feelings which he has poured forth upon the enemy. No, sir, it is the last Message of the President which contains all this dreadful matter. In that Message came before us an Order in Council by the Prince Regent, and a letter from a British Secretary, to a West India Governor. Sir, by that order, certain West India ports are opened to the importation of articles which they wish to purchase, and to the exportation of produce which they wish to sell. This is no new practice; in every European war, the belligerent mother country has never failed to open some of her colonies to neutral commerce. By this order nothing more is done, and so far from any insult or injury to us in the body of the order, our nation is not even named. The honorable gentleman from South Carolina (Mr. LOWNDES) has pertinently asked, to what extent you would carry your new principles of honor and retaliation. The enemy spares the commerce of the East, and destroys that of the South; you must equalize them by destroying the former. You cannot stop here. If the enemy _blockades_ the South, you must _embargo_ New England. If he burns Charleston and Norfolk, you must burn New York and Boston. In fine, any thing spared in one section of the Union by the enemy, which he has the power to destroy, and not spared in another, must be destroyed by our Government, by way of equalizing the burdens of the war. The gentleman from South Carolina, (Mr. CALHOUN,) to whom I have so often alluded, was disposed highly to compliment the people of the Northern States. He declared his full confidence in their fidelity, patriotism, and honor, and he believes that they will not only spurn with contempt the attempt to seduce them, but will hail the present measure as just, honorable, and wise. Sir, the patriotism of that people is undoubtedly as warm and as disinterested as that of any people on this globe; and if, indeed, this were an attack on their honor, they would need no such law as this to teach them their duty, or to compel them to perform it. But, sir, I do not believe that their patriotism will feel insulted. They will hardly be satisfied by flattery and compliment for this attack upon their commerce. I would not be surprised if they should answer the honorable gentleman somewhat in this manner: "Hands off, Mr. CALHOUN, if it please you; we do not dislike your compliments; indeed, we are pleased with the notes of this new tune from the South. We will do any thing in reason to oblige you; but really, sir, to be complimented out of our commerce; to be flattered into poverty; to be cowed into service, is a little more than the rules of civility demand." It has been avowed on this floor, [by Mr. Speaker CLAY,] that this bill is only one part of a contemplated system of rigid non-exportation. Have gentlemen reflected on the disastrous consequences of such a system at the present time? The district which I have the honor to represent, is a portion of an extensive tract of mercantile and agricultural country, extending up the Hudson River far into the interior of New York. The merchants and farmers of that country did believe, that when you appealed to arms, your restrictive system was at rest forever. They had a right so to believe, from the declarations of gentlemen on this floor, and from the unequivocal conduct of Government. Under this belief, during the present winter the merchants have constantly purchased produce at high and advanced prices. In the numerous villages scattered on either side of the Hudson River, and over immense tracts far to the west of it, the stores are groaning with the productions of their soil. Sir, when the Spring opens, they will find all their prospects blasted, and bankruptcy staring in their faces. Through the whole frozen interior of the North and East, the condition of the merchants and farmers is similar, and similar disastrous consequences will be realized. We are involved in war with a nation powerful in her resources, clothed in complete armor, and to whom, from long habit, a state of warfare has become almost a national condition. We need all our resources and all our energies to save this war from a disgraceful conclusion. What then but madness can dictate a policy tending to dry up our resources and paralyze our energies. Wounded by the spear of war, what but downright political quackery could prescribe those "restrictive" nostrums, to restore the nation to health and vigor? Are the old chimerical notions of _starving_ the enemy, yet floating in the brains of gentlemen? In despite of experience, do they yet believe that our blessed country _alone_ can produce food for the world? Are the countries of the Baltic and Caspian Seas no longer cultivated? Has the Nile ceased to fructify the fields of Egypt? Have Sicily and the Barbary coasts returned to a barren state of nature? Has France herself agreed to bury her surplus breadstuffs in the earth? Or has England lost that ascendency on the ocean, and forgot all those commercial arts, by which she was wont to procure supplies from all those countries? Seven years of restrictions have in vain been tried. Your enemy has laughed you to scorn, and your own people have cursed the policy that crushed their prosperity. There is no doubt that, as at the time you laid the embargo, the closing of your ports now, might produce a temporary inconvenience to the enemy; but the measure would finally and permanently recoil on our merchants, and even farmers. These men have, therefore, a deep and vital interest in this question. Twice already they have been sacrificed to test the efficacy of our "restrictive energies." Do you intend again to stretch them on the rack, again to cover the country with sackcloth and ashes? Is another brood of "restrictive" harpies, more unseemly and more hungry than their predecessors, to be let loose among them? And is this bill a pioneer to the new swarms of "continental" locusts? Mr. Speaker, I shudder when I behold that anti-commercial demon, which for seven years has been glutted with the mangled limbs of commerce, still hovering about this bill. The deluded people did believe that, when "you let slip the dogs of war," the monster had fallen, never again to trample down their rights, or devour the remnant of their prosperity. They were mistaken. He has risen invigorated from the blow; like the horse leech, he continues to cry, "give, give!" He never will be satisfied while the farmers of the North and the East are prosperous and powerful, or while the ships of an independent merchant float safely and successfully on the ocean. Sir, I do trust in Heaven, that the people of this Union will not sleep forever--I do trust, that the time is not far distant when the rulers of this nation shall be compelled again to travel in the paths of peace, commerce, and honor. I do trust that this new system, fraught as it is with new destruction, will meet an effectual overthrow. On this floor, I have no hope of such an event. The current of influence is here too strong to be resisted. But if the God of nations "doth seek our rulers, and hath given our Senators wisdom," it must find its grave in the other branches of the Government. Mr. QUINCY opposed the bill, and after some remarks from Mr. BLACKLEDGE in reply to him, the question on concurring with the Committee of the Whole in their amendment was taken, to wit: to strike out from the fifth line of the first section, the words, "and every," and to insert "wheat, flour, rice, cotton, tobacco, indigo, tar, pitch, or turpentine, or any other article, the growth, produce, or manufacture of the United States:." And passed in the affirmative--yeas 69, nays 29. _Constitution and Java._ The House took up for consideration the resolution from the Senate requesting the President of the United States to present to Captain William Bainbridge a gold medal, with suitable inscriptions, and to the officers of the frigate Constitution silver medals, in testimony of the high sense entertained by Congress of their gallantry and skill in achieving the capture and destruction of the British frigate Java; which was read three times, and passed. _Bounty to Privateers._ The House went into a Committee of the Whole on the bill allowing a bounty to privateers; but the committee being unable to progress for want of a quorum, it rose and reported the fact to the House; and the bill and report were ordered to lie on the table, and the House adjourned. WEDNESDAY, March 3. _Navy Yards._ On motion of Mr. REED, _Resolved_, That the Secretary of the Navy be, and he is hereby, directed to report to this House, at the next session of Congress, a statement of the number of Navy Yards belonging to, and occupied for the use of the United States; the accommodations provided in each, with the number of officers and men attached to each, with their rank and pay; also, the quantity and species of timber provided in each. Also, a statement of the expenditures made in each yard during the years 1811 and 1812; the number of vessels required during that time, with the species, quantity, and cost of repairs on each vessel, and the manner in which such repairs have been made, whether by contract or otherwise, and the terms. Also, the amount of timber provided under the law making an annual appropriation of two hundred thousand dollars, with a statement of the contracts made under said act, and the terms thereof: Also, the number of officers in the naval service of the United States, their rank, pay, and employ. _Encouragement to Privateers._ The bill allowing a bounty to privateers was passed through a Committee of the Whole, and ordered to lie on the table, under the impression that it could not be acted on at the present session. EVENING SITTING, _5 o'clock_. _Thanks to the Speaker._ On motion of Mr. SAWYER, _Resolved unanimously_, That the thanks of this House be presented to HENRY CLAY, in testimony of their approbation of his conduct in the discharge of the arduous duties assigned him while in the Chair. Whereupon, the Hon. SPEAKER rose and made the following observations: "I thank you, gentlemen, for the testimony you have just so kindly delivered in approbation of my conduct in the Chair. Amidst the momentous subjects of deliberation which undoubtedly distinguish the 12th Congress as the most memorable in the annals of America, it has been a source of animating consolation to me, that I have never failed to experience the liberal support of gentlemen in all quarters of the House. If in the moment of ardent debate, when all have been struggling to maintain the best interests of our beloved country as they have appeared to us respectively, causes of irritation have occurred, let us consign them to oblivion, and let us in the painful separation which is about to ensue, perhaps forever, cherish and cultivate a recollection only of the many agreeable hours we have spent together. Allow me, gentlemen, to express the fervent wish that one and all of you may enjoy all possible individual happiness, and that in the return to your several homes you may have pleasant journeys." _Closing Business._ On motion of Mr. DAWSON, a committee was appointed, jointly with a committee to be appointed by the Senate, to wait upon the President of the United States, and inform him that the two Houses are now ready to adjourn, and desire to know whether he has any further communication to make to them during the present session. Messrs. DAWSON and GROSVENOR were appointed the committee on the part of the House. The Senate agree to the resolution for the appointment of a joint committee to wait on the President of the United States, and notify him of the proposed recess of Congress, and have appointed a committee on their part. For some time a quorum was not present. Bills from the Senate were waiting. A call of the House was had, and it appeared that sixty-four members only were present. After receiving from the President all the bills which had passed, and being informed by the committee that he had no further communications to make, the House adjourned _sine die_. FOOTNOTES: [30] Chief Justice Marshall. [31] This debate, although arising on a subject which implied a limited discussion, soon passed beyond its apparent bounds, and instead of being confined to the simple military question of raising additional troops, expanded into a discussion of the whole policy, objects and causes of the war, and became the principal debate of the session. All the leading members of the House took part in it; and many new members, then young, and whose names have since become famous, then took their start. [32] The Chairman had risen to put the question, which would have cut Mr. C. off from the chance of speaking, by returning the bill to the House. [33] The well-known political writer, William Cobbett, publishing a gazette under the name of Peter Porcupine. [34] Mr. Barlow's journey to Wilna, where he only arrived to die. [35] The following is the act as passed: _Be it enacted, &c._, That in all, and every case, wherein, during the present war between the United States of America and the United Kingdom of Great Britain and Ireland, any violations of the laws and usages of war among civilized nations, shall be or have been done and perpetrated by those acting under authority of the British Government, on any of the citizens of the United States, or persons in the land or naval services of the United States, the President of the United States is hereby authorized to cause full and ample retaliation to be made, according to the laws and usages of war among civilized nations, for all and every such violation as aforesaid. SEC. 2. _And be it further enacted_, That, in all cases where any outrage or act of cruelty or barbarity shall be or has been practised by any Indian or Indians, in alliance with the British Government, or in connection with those acting under the authority of the said Government, on citizens of the United States or those under its protection, the President of the United States is hereby authorized to cause full and ample retaliation to be done and executed on such British subjects, soldiers, seamen, or marines, or Indians, in alliance or connection with Great Britain, being prisoners of war, as if the same outrage or act of cruelty or barbarity had been done under the authority of the British Government. Approved, March 3, 1813. INDEX TO VOL. IV. A _Absentees_, recall of, resolution to direct the Speaker to request their attendance, 533. ADAMS, JOHN QUINCY, resigns seat in Senate, 3. _See Index_, vols. 2, 3. _Allegiance, Foreign_, petition of inhabitants of Kentucky, stating that the King of Great Britain, by proclamation, claims the allegiance of all persons born in his dominions, 46; had authorized their impressment, &c., &c.,--petition prays for resistance of this assumption, 46. _See Index_, vol. 1. ALEXANDER, EVAN, Representative from North Carolina, 36; moves a committee of inquiry relative to proving the acts and proceedings of States, 87. _See Index_, vol. 3. _Algerine War._--_See Index_, vol. 1. ALSTON, LEMUEL J., Representative from South Carolina, 36, 125, 187, 315. _See Index_, vol. 3. ALSTON WILLIS, jr., Representative from North Carolina, 36, 125, 187, 315, 425, 577; on the value of blank ballots, 125; on a vote of approbation of the conduct of the Executive, 129; opposes the postponement of the resolution relative to the apportionment of representation, 224; on the ratio of representation, 319; on laying additional duties, 431; on establishing a quartermaster's department, 477. _See Index_, vols. 2, 3. AMY DARDIN, report on petition of, 216; bill read, &c., 218; report for relief of, agreed to, 538. _See Index_, vols. 1, 2, 3. _Amendments to the Constitution._--_See Index_, vols. 1, 2, 3. ANDERSON, JOSEPH, Senator from Tennessee, 5, 28, 116, 176, 252, 420; presents memorial of Legislative Council of Mississippi Territory, 265; on the incorporation of a Bank of the United States, 266; on a recess of Congress, 412. _See Index_, vols. 2, 3. ANDERSON, WILLIAM, Representative from Pennsylvania, 124, 187, 315, 424, 577. ARCHER, STEVENSON, Representative from Maryland, 424, 577; on foreign relations, 466; on the policy of the war, 638; on war taxes, 715. _Armed Vessels_, public and private, encouragement of, resolution relative to, 711. _See Privateers._ ARMSTRONG Gen., his letter to Mr. Pinkney, 361; letter of, on additional general officers, 713. _Army, pay of the._--In the House, bill concerning the pay of the army considered, 581; the present pay of the army much below the average price of labor, 581; wherefore should the soldier receive less than any other man, 581; the compensation should be proportioned to the risk, 581; to second section of the bill little objection apprehended, 581; third section founded on the principle that every man owes to the country which protects him, military service, 581; second section involves an infraction of the constitution, 582; any man who had contracted a debt had certainly given a pledge not only of his property but of his body to his creditor, 582; this right of the creditor to take the body is completely taken out of his hands in regard to those who enlist, 582; has an _ex post facto_ operation, 582; this provision necessary to guard against fraud, 582; persons enlisted procure themselves to be arrested under fictitious debts, 582; when let out on bail and the commander attempts to take him he is rescued on a _habeas corpus_, and courts decide the man to be the property of his bail, 582; motion to strike out lost, 582; third section encourages the uneasy boy to throw off parental authority or to defraud a master, its tendency is to violate public morals and the spirit of the constitution, and to interfere with public economy, 582; it is unknown as well as immoral, 582; other objections, 583; minors above eighteen allowed to enlist, 583; you go into the workshop and the parent's dwelling and entice away the apprentice and the child, 583; this very population constitutes the strength and vigor of war, 583; what was the fact in France, 583; her army is made up of young men, 583; the case of husbands deserting wives and children aged parents, is as much entitled to sympathy, 583; better resort to liberal bounties and wages than violate important principles, 584; the extensiveness of the relation of master and apprentice, 584; can these relations dissolve under the charm of this bill, 584; necessity is alleged, 584; beware how you yield to this fancied necessity, 584; this section will be productive of much evil and perhaps little good, 584; reason to doubt its constitutionality, 584; amendments negatived and bill ordered to third reading, 584; the atrocity of the principle and the magnitude of the evil contained in this bill, 585; third section is calculated to seduce minors from their masters, guardians, and parents, 585; the absurdity of this provision--its inequality--its immorality considered, 585, 586; sixteen was the age called upon in the revolution, 587; which excites the most regret, a child leaving his parents to defend his country, or a parent torn from his family to defend a foreign power, 588; the charges against this bill are a libel on the House, 588; atrocious principle! let gentlemen damn the memory of the patriots of the revolution who originated this principle, 588; if there is an increase of population, there appears to be a deterioration of patriotism since the revolution, 588; what was the law in 1798, 588; the power to enlist minors is a new principle, 588; third section examined, 589; reason for the preference of young men, 589; House now prepared to take up a small subject and make a great thing of it, 589; a man ought not to be called on to defend his country until he has acquired political rights, 589; moved to recommit the bill, 590; it is of the nature of an _ex post facto_ law, and tends to exalt the military over the civil authority, 591; the third section freighted with most fatal consequences, 591; cases supposed, 591; recommitment lost, 592; bill passed, 593. _Military Force additional._--In the Senate, a bill to authorize the President to accept and organize certain military corps, &c., considered, 405; be productive of no efficacy, 405; be inoperative, 405; system of volunteers the favorite one of the Government, 405; the number should be reduced, 405; only a formidable display of armies on paper, 405. _In the House_, bill taken up, 547; is it such as to require secrecy? 548; voted affirmatively, 548; bill ordered to be engrossed and passed, 548. _In the House_, bills for the more perfect organization of the army, and to raise an additional military force considered in committee, 611; moved to fill the blanks relative to bounty, 611; the military committee present a system on which to rest the future operation of the war, 611; explanation of its merits, 611; object with all to terminate the war successfully, 611; no other mode than to call into the field a force adequate to command every honorable object, 611; the good the war has accomplished relative to our character abroad, 611; the honor of the nation requires that British power on our borders should be demolished in the next campaign, 611; after seeing the necessity of augmenting the regular forces, it was equally material to provide for filling the ranks, and keeping them at their full complement, 612; it is proposed to appoint recruiting officers for each regiment, 612; it may be said the results of the last campaign are so unfavorable that there is no object to vote further sums, 612; all our disasters sprang from a cause no man in the nation could anticipate, 612; treachery or cowardice caused the surrender at Detroit, 612; question on filling the blanks carried, 613; moved to repeal the offer of bounty land to the recruits, 613; this is a waste of the nation's capital without a single provident result, 613; it is proposed to increase the bounty in money, 613; motion agreed to, 613; blanks in the other bill authorizing an additional military force severally filled, 613; reason for giving the appointment of officers below the rank of colonel to the President alone, 613; bills reported to the House, 613; first bill ordered to be engrossed, 613; question on the engrossment of the bill to raise an additional military force, 614; great anticipations from the action of twenty thousand men in a single year, 614; when war was declared it was said Canada would be conquered in a single year, 614; experience has proved the fallacy of these predictions, 615; no pleasure to dwell upon the disasters and disgrace that have attended our military operations, 615; the annals of the last six months are most deplorable, 615; the tone and heart of the country broken, universal disgust at the past, anxiety and concern for the future, 615; what is now proposed for the future, 615; an army of twelve months' men--a broken reed, 615; an army and term of service which well nigh lost the country in the revolutionary war, 615; wherefore change the term of enlistment from five years or during the war to one year, 615; feelings of the Canadians, 616; let us see things as they are, and look danger in the face, 616; points in our relative conduct towards France and Great Britain which will not bear examination, 616; moved to strike out one and insert five years as the term of enlistment, 616; we must rise after reverses, 616; if we were to unite the question would soon be settled, 617; cause of the war concisely stated by Capt. Porter, "Free trade and sailor's rights," 617; is there a man doubts the war was justly undertaken? 617; what injury have we not suffered, 617; you have been told the Prince Regent and his ministers are firm, let us follow their example, 617; an army should be seasoned before it is taken into the field, 617; it will take a year to prepare them for the field; without discipline they are useless, 617; let us raise an army for the war, 617; we must take the continent from Britain, 617; the question is what is the kind of force, and for what length of time can you raise an army to take the field at the earliest period? 618; under this measure a force may be drawn into the field ready to act efficiently in the next campaign, 618; we have never engaged in any war in which we have come out better in the first campaign, 618; if this country will go into the war heart and hand, we shall shortly demonstrate to the enemy that it is her interest to be at peace with us, 618; amendment lost, 618; question on the passage of the bill, 618. All desire peace, but what is the best course to obtain it, 618; will the passage of this bill, and the actual enlistment of the proposed force secure peace? 618; this war can be terminated with honor and advantage without further effusion of human blood, 619; this does not mean that the honor of the nation is identical with the honor of those who declared the war, 619; the question of contest is reduced to a single point, 619; the British Orders in Council have been repealed, the practice of impressment alone remains, 619; this has been subjected to much exaggeration, 619; it is not certain England has been unwilling to enter into such an arrangement as would place this question on a fair and honorable basis, 619; see the correspondence of Messrs. Monroe and Pinkney, 619; at one period she was willing to advance considerable lengths towards an adjustment, 619; our duty to make an effort for the sanction of our just rights and the restoration of peace without further appeal to force, 619; facts tending to confirm this belief, 620; the late communications from the Executive to the British Government present a novelty in the history of war and diplomacy, 620; this bill is a kind of second declaration of war, 621; the war is both politically and morally wrong, 621; it is of an offensive character, 621; something unaccountable that the disposition to prosecute this war should increase, 621; it rests now solely on the subject of impressment, 621; this must be settled by treaty, 621; we shall create an annual expense of forty millions, 621; if Canada could be taken it would be a great public misfortune, 621; this war cannot be prosecuted without violating the laws of humanity and justice, of religion and morality, 621; it is becoming more unpopular in the Eastern States, 622; the force contemplated to be raised is unnecessary, 622; the present military establishment is certainly sufficient for all purposes of defence, 622; neither Canada nor any other British province will be worth the blood and treasure they will cost us, 622; the militia of Canada estimated too low, 622; of what value would these provinces be to us, 623; duty to inquire into the policy and necessity of this measure, as well as the present state of our relations with Great Britain, 623; would the principle, if yielded to us to-morrow, benefit our native seamen, or promote the real interests of the country? 624; is there probability of obtaining a recognition of this principle by a continuance of the war? 624; the traffic in American protections, 625; the bill is altogether inadequate to the purpose intended to be accomplished, 626; it cannot be admitted that because the war is declared, we are bound to lend aid to promote every plan for prosecuting it which may be proposed, 627; the bill is unnecessary for the attainment of the original object of the war, 627; some of the pretended causes of the war have never been seriously relied on by our Government, 627; what was the avowed object of this war? 628; the pretence was to take or rather to receive Canada, 628; the effect of this bill is to place at the disposal of the Executive an army of fifty-five thousand men, 628; the purpose for which these men are demanded is the invasion of Canada, 628; is the conquest of Canada an object desirable in itself, or advantageous by its effect in promoting an early and honorable peace? 628; _note_, 628; the intention of the American Cabinet thus unequivocally avowed, 628; anxious that no doubt should exist on this subject, 628; no scheme ever was or ever will be rejected by the men now in power merely on account of its running counter to the ordinary dictates of common sense and common prudence, 629; illustration, 629; the great mistake of all those who reasoned concerning the war and the invasion of Canada, that it was impossible, was that they never took into consideration the connection of these events with the then pending election of Chief Magistrate, 629; the invasion of Canada considered as a means of carrying on the subsisting war, a means of obtaining an early and honorable peace, and a means of advancing the personal and local projects of ambition of the members of the American Cabinet, 630; never was there an invasion in any country worse than this in point of moral principle, since the invasion of the Buccaneers, or of Capt. Kidd, 632; they had the hope of plunder, here there is not even the poor refuge of cupidity, 632; the disgrace of our arms on the frontier is terrestrial glory compared with the disgrace of the attempt, 632; this nation is the last which ought to admit the design of foreign conquest, 632; multitudes who approve of the war detest the invasion, 633; look at the elections, what do they speak? 633; the people of New England have no desire for Canada, 633; the surest way to defeat any hope from negotiation is this threat of invasion, 634; the American Cabinet understood this, 634; the project of this bill is to put further off the chance of amicable arrangement, 634; the present men were raised to power by elements constituted of British prejudices and British antipathies, 634; such men will never permit a state of things to pass away so essential to their influence, 635; the Cabinet has been careful to precede negotiation with some circumstance sure to make it fail, ever since the refusal to renew the Treaty of 1794, 635; the Executive power passed into new hands, under the old influences and principles of the former Administration, 635; the whole stage of the relations induced between this country and Great Britain was a standing appeal to the fears of Great Britain, 635; what is the truth in relation to the repeal of the Berlin and Milan decrees? 636; were ever a body of men so abandoned in the hour of need as the American Cabinet by Bonaparte? 636; reasons for referring to this subject, 636; illustrations of what is doing and intended at present, 637; the invitations to union which have been so obtrusively urged, 638; the liberty of debate prostituted in disseminating the most unfounded charges, 639; it has been charged that war had been declared prematurely and without due preparation, 639; it has been said that the nature of the war is changed, 640; what the Legislature considered as the cause of war, 641; the manner in which the points of difference between the two nations ought to be considered, 641; negotiation has been tried in the matter of impressment for twenty years, 641; it is pretended that this Government is not desirous of peace, and that this is a war of conquest and ambition, 642; if we now recede, are not points conceded to the enemy which the opposition never would concede if in power, 642; how much more powerful is the objection to the right of search now than when first made, 643; exemption from impressment is no new claim set up, 644; the evils we have complained of were of a nature not to be remedied by war, 644; what has been the state of the country since the declaration of war, 645; our relations with the belligerents have essentially changed since war was declared, 645; Napoleon has inveigled us into a war, 645; why was the evidence of a repeal of the decrees withheld, 646; believing the French decrees repealed, we departed from our neutral stand, by enforcing the non-intercourse law against Great Britain, 647; the prominent causes of the war examined, 648; whether this bill is right or wrong depends upon circumstances, 652; it is said to be the constitutional duty of the opponents of the war to afford every aid and encouragement, 653; not the most suitable measure to be selected by the opposition, upon which to show their resistance, 653; a view of the past, of different parties which have at various times appeared, and the manner by which we have been driven from a peaceful posture, 654; the course of the opposition in impeding the Government for the last twelve years has been unexampled in history, 654; gentlemen seem to forget that they stand on American soil, 655; a plot for the dismemberment of the Union, 656; cause of the declaration of war, 656; it is said France inveigled us into the war, 656; the war might have been declared even if the Orders in Council had been repealed earlier, 657; it is said Great Britain has always been willing to make a satisfactory arrangement on the subject of impressment, 658; what cause which existed for declaring the war has been removed, 659. What is the object of this vast military force? 660; retrospect of the last eight years, to show how much gentlemen have been mistaken and disappointed in their views of foreign policy, 661; the picture of impressments has been too highly colored, 663; in that section of the Union where two-thirds of the seamen come from, there is an overwhelming opinion against the war, 663; the controversy seems brought to a single point, 663; it is supposed this is the auspicious moment to assert our rights, 664; the opinions of the majority have undergone a strange revolution, 664; the conquest of the British provinces doubtful, 665; physical and moral evils resulting from your measures, 666; some observations on the bill itself, 666; none can deny the propriety of defending the country, 666; objections to the further prosecution of the war examined, 667; contrariety of opinions respecting Canada, 668; none but cowards calculate on the cowardice of their foe, 668; the war was improperly commenced and is unnecessarily continued, 669; examination of the causes as they existed at the commencement and exist now, 669; the claim on the part of Britain relative to seamen, 670; this claim examined, 670, 671, 672, 673; the points made in debate, impressment, the right to expatriate, the right to naturalize, and French influence, 675; a distinction been drawn throughout this debate between the rights of a man who cultivates the soil, and one who follows the seas, 675; every attempt to settle the question of impressment for twenty years has failed, 676; it is said that it is the abuse of impressment of which we complain, 676; Porcupine paper, 676; all agree that we ought to fight for the rights of our seamen, why not all join heart and hand to do so, 678; this has been a most unfortunate Government as ever existed; every thing has gone wrong, 678; bill ordered to be engrossed, 679. Question on the passage of the bill, 679; the army has been represented as dangerous to the liberties of the country, 679; what have been the propositions heretofore made by our Government to Great Britain? 679; equitable as they were all were rejected, 680; for every British seaman obtained by impressment a number of Americans have been made victims, 680; the change of Administration in former years, 681; characters of the two contending parties, 681; course of the successful party, 682; proceedings of our Government, 683, 684; the Orders in Council constituted no insurmountable obstacle to negotiation between this country and Great Britain, 685; if the President had made that repeal a basis of negotiation, every man in the country would have hailed him as the restorer of peace, 686; the ruler of France has turned with contempt from your reclamations, 686; what atonement has been made for these insults and injuries, 686; the Indian wars on the frontier, 686; has this subject been inquired into, 687; a word on the subject of impressments, 687; Great Britain rather than surrender the right of impressing her own seamen, will nail her colors to the mast and go down with them, 688; this lies in a small compass, 688; what was the offer made to our Government by the British Ministry? 688; the right of search does exist, and has been acknowledged by all nations, 689; the French doctrine in relation to impressment, 689; author of the Newburg letters to command your army, 690; can the force contemplated be obtained; will it accomplish the end proposed, and will it be an economical force? 690; the grounds taken by the opponents of this bill examined, 691, 692; what is the object of this debate, 694; to thwart the final success of the war, 694; all the arguments of the opposition have been directed to destroy the union and zeal of the people, 694; but say our opponents, as they were opposed to the war, so they are not bound to support it, 694; but we are told that peace is in our power without a further prosecution of the war, 694; it is said we ought to offer England suitable regulations on this subject to secure to her the use of her seamen, 695; will the intended effect of the opposition be produced? 695; gentlemen are conjured to bring this debate to a close, 696; the success against the Canadas doubtful, 696; mortifying to see the conduct of the enemy vindicated and palliated, 696; the several heads of discussion introduced in this debate considered, 697; what is a just and necessary war? 698; what did an elevated fitness of character and conduct require of this nation when war was declared? 699; popular opinion was not against this war, 700; impressment alone would have ultimately produced war, 700; all public law, it is said, has denied the right of expatriation, 701; bill passed, 702. _See Index_, vols. 1, 2, 3. AVERY, DANIEL, Representative from New York, 424, 577. B BACON, EZEKIEL, Representative from Massachusetts, 36, 124, 187, 315, 424, 578; supports the resolution for immediate measures to liberate American prisoners in Carthagena, 95; offers a resolution relative to petitions respecting the Presidential election in Massachusetts, 105; on a vote of approbation of the conduct of the Executive, 127; on Miranda's expedition, 144; reports relative to challenges and duels, 191; against the petition of Elizabeth Hamilton, 215; on reduction of the navy, 244; against the admission of Mississippi, 352; on pay of the army, 582; against encouragement to privateer captures, 704. _See Index_, vol. 3. BAYLY, MOUNTJOY, Sergeant-at-Arms to the Senate, 403. BAINBRIDGE, WILLIAM, letter relative to the capture of the frigate Java, 717. BAKER, JOHN, Representative from Virginia, 425, 577; on the location of a military academy, 531. _Bank of the United States_, dividends on stock of, 188; capital of branches, 188; expenses and losses, 188; report on, 216. _Bank of the United States._--In the House, report on the memorial of the stockholders of the United States' Bank, 215. _In Senate._--Petition of the President and Directors for a renewal of their charter, 252; bill to incorporate the subscribers considered, 266; moved to strike out the first section, in order to try the principle, 266; reasons of the committee for reporting the bill, 266; Congress has power to pass such a bill, 266; powers granted by the eighth section of the first article, 266; the enumeration of certain powers excludes all other powers not enumerated, this point examined, 267; not true when applied to express grants of power, strictly incidental to some original substantive power, 267; subject examined, 267; it is said Congress can exercise no power by implication, yet can pass all laws necessary to carry the constitution into effect, 267; the power to create the Supreme Court must be derived by implication, 268; explained by an example, 268; according to the construction given to other parts of the constitution, Congress has the right to incorporate a bank to enable it to manage the fiscal concerns of the nation, 268; the law to erect light-houses is not a law to regulate commerce, 269; it is said the advocates of a bank differ among themselves in fixing upon the general power to which the right to create a bank is incidental, 269; no man ventures to declare that a bank is not necessary, 270; this is an apparent objection to the constitutional argument, 270; the medium of State banks, 270; the means by which the constitutional powers may be carried into effect, may vary if the powers do not, 270; the motion to strike out goes to the entire destruction of the bill, 271; the usefulness of the present bank admitted, 271; what is the state of the bank in this city, 271; the conduct of the bank has been honorable, liberal, and impartial, 271; in every instance where it possessed the ability, it has met the wishes of the government, 271; it is said these stockholders have enjoyed a boon for twenty years from which all others have been excluded, 272; it is impossible to devise any written system of Government which after a lapse of time, extension of empire, &c. shall be able to carry its own provisions into operation, hence the necessity of implied or resulting powers, 272; whence do you get the right to erect custom-houses, but as an implied power, 272; want of power to grant an act of incorporation has ever appeared the most unsound and untenable objection, 272; the situation of this bank on the expiration of its charter, and the effects on the community consequent upon it, 273; the amount of specie in the United States, 273; effects which the dissolution of the bank will have on the revenue and fiscal concerns of the country, 274; will your money when collected be safe in the State banks? 274; irksome to oppose a law which has been in existence twenty years, and acquiesced in by the State and General Governments, 275; it has been said, that it is the fashion to eulogize the constitution, 275; if it could be shown that there had been aberrations by Congress from the enumerated powers of the constitution, would it be correct to use those aberrations as precedents? 276; the present constitution was adopted as a remedy for the non-compliance of the States with the requisitions under the Articles of Confederation, 277; the present Government is in its nature and character a government of enumerated powers, reserving all unenumerated to the State Governments, or to the people, 277; "to provide for the common defence and general welfare," explained, 277; these terms contain no grant of power whatever, but are used to express the ends or objects for which particular grants of power were given, 278; instances of aberrations from the enumerated powers examined, 278; erection of light-houses, 278; custom-houses, 278; these two powers indispensably connected with and subservient to particular enumerated powers, 278; light-houses among the common, necessary, and proper means, for the regulation of commerce, 279; is the incorporation of a bank of this character? 279; the defying manner of the arguments advanced in favor of the renewal of the charter, has occasioned this debate, in order to avert the passage of an unjustifiable law, 280; it is said that this has been made a party question, although the first law passed prior to the formation of parties, 280; explanation, 280; the pointed difference which has been made between the opinions and instructions of State legislatures, and the opinions and details of deputations from Philadelphia, 280; the new and unconstitutional veto which this bill establishes, 281; the vagrant power to erect a bank after having wandered throughout the whole constitution, has been located on that provision which authorizes Congress to lay and collect taxes, 281; suppose the constitution had been silent as to an individual department of this government, could you under the power to lay and collect taxes, establish a judiciary? 281; what is a corporation such as the bill contemplates? 282; the States have the exclusive power to regulate contracts, 282; what participation has this bank in the collection of the revenue? 282; the operations of the Treasury Department may be as well conducted without a bank as with one, 283; the management of the landed system, 283; it is said the construction given to the constitution has been acquiesced in by all parties, 283; when gentlemen attempt to carry this measure on the ground of acquiescence, do they forget that we are not in Westminster Hall? 284; the doctrine of precedents applied to the Legislature, is fraught with the most mischievous consequences, 284; not empowered by the constitution, nor bound by any practice under it to renew the charter to this bank, 284; all power may perhaps be resolved into that of the purse, by whom is it wielded? 284; the Duke of Northumberland is said to be the most considerable stockholder in the bank, 285; the principle here involved is most important; it is no less than whether we shall surrender to the State Governments the power of collecting our revenue, and rely upon the old system of requisitions, 285; the bank has answered the most sanguine expectations of its authors, 285; we are required to discard the lessons of experience, to try some new scheme, 285; we are to ruin many innocent and unoffending individuals, and derange the finances, and for what? 286; it is a contest between a few importing States, and the people of the United States, 286; it is a contest between the friends and enemies of the federal constitution revived, 286; if we yield to the States the collection of our revenue, what will remain of our Federal Government? 286; it will be a political fiction, 286; hostility to the Union would prompt to join the hue and cry against this institution, 286; it is said that debate is useless on this question, 287; to form a correct opinion we must retrospect the defects of the old government, and ascertain the remedy which was anticipated in the present constitution, 287; the great cause of the inefficiency of the former was owing to its dependence on the States for the means to carry its powers into effect, 287; the present constitution was framed with ample authority to pass all laws necessary and proper for the attainment of its objects, 287; erroneous impressions have arisen from ignorance of facts relative to the practical fiscal operations of the government, 287; the power to create a bank is not derived by implication, 287; the Convention granted to the new Government in express and unequivocal language, ample authority to use all the means necessary and proper for the attainment of the ends for which it was instituted, 287; the question of constitutionality depends upon facts dehors the instrument, 287; if it be a fact that a bank is necessary and proper to effectuate the legitimate powers of government, then our power is express, and we need not resort to implication, 287; endeavor to prove this to be a fact, 287; the erection of a bank by the Congress of 1781, 287; the opinion of General Hamilton, 288; character of the Congress of 1781 stated, 288; authority of Washington, 288; the cry is, "down with the bank, huzzah for the party!" 288; sound interpretation of the words "necessary and proper," 289; those opposed to the bill, predicate their arguments upon the probability that the State banks will answer, this is an admission of the necessity, 289; congeniality between a bank and the collection of our revenue, 289; the repeated sanctions the bank has received from different Administrations is strangely accounted for, 290; whence was derived a power to pass a law, laying an embargo without limitation, 290; twelfth article of the amendments to the constitution considered, 290; it is not pretended that our fiscal concerns could be managed with gold and silver, 290; if the bank is removed, the Secretary of the Treasury must nationalize the bank paper of the great importing States, 291; charges of British influence, 291; the embarrassments at Philadelphia, it is said, could not have been occasioned by the bank, 292; Kentucky, I am only thine, 292; former course of proceeding in regard to the principle of a bill and its details, 292; the course of the press on this subject, 292; it is said, that this question is discussed on party grounds, 293; a view of the beginning and operations of the bank, 293; no democrat has been admitted as a director of this institution, except in New York, 294; petty mischievous intrigue for carrying measures through Congress, 294; for what do merchants form a part of the bank deputies? 294; what did mechanics here say relative to granting this charter? 294; there is scarcely an evil which has not been attributed to the embargo, and which is not now with as little justice attributed to the non-renewal of the charter of the bank, 294; if not renewed, difficult to obtain loans, it is said, 295; instructions to Senators, their force discussed, 296; a State has not a moral right to violate the constitution, and cannot give it to her Legislature, nor the Legislature to the Senator, 296; the primary question is, whether the General Government when it first came into operation, did not possess the power of creating a National Bank, 296; to answer this, let us inquire whether there was any possibility of carrying into effect, with any tolerable convenience and advantage, the several provisions of the constitution, unless this power exists, 297; it is admitted by all that the agency of a bank affords the greatest facility and security of any plan that can be devised for the collection of a revenue, and its transmission to the Treasury, 297; other admissions stated, 297; the consequence which follows from these admissions, 297; if Congress once possessed this power, what has taken it away? 297; to create this bank is said to be legislation by implication, 298; it is said the corporation will be a monopoly, 298; anticipated dangers of erecting corporations, 298; a violation of the constitution, however solemnly sanctioned or long endured, can never become right, 299; difference in the present case, 299; recapitulation, 299; rule of construction in construing the constitution, when legislating on enumerated powers, 300; the authority to grant this charter is found in section seven, clauses first, second, and last, 301; meaning of the words "necessary and proper," 301; great stress is laid on that amendment which says "all power not expressly granted, shall be retained," &c., 301; it is easy to prove that the broad grant given to Congress to legislate for the District of Columbia, in all cases is restricted and paled in by the constitution, 302; this power to charter a bank is expressly granted, 302; it is necessary and proper for carrying into effect another general power to borrow money, 302; no arguments yet advanced to prove that this power is an original and substantive, and not a derivative or implied power, 303; to determine if a measure is just and proper, we must consider whether it has a just or useful relation to the end, 303; of all depositories banks are the safest, 303; it is asked, why not confine the duty of the bank to collecting the public revenue? 303; Congress are to devise means most sure and expeditious to borrow money, 303; the safety and facility of commercial operations are greatly promoted by a general currency, 304; it is said Washington doubted, 304; objections offered by Mr. Jefferson, 304; remarks of Hamilton, 304; consequences of destroying the bank, 305; distresses which will follow, 305; answer to objections, 305, 306; the prompt and secure collection of our revenue is principally owing to the influence of the bank, 307; other objections examined, 307; objections to the construction of different clauses of the constitution examined, 308; it is said the history of the States will show that the bills of credit specified in the constitution, were those only which were a legal tender in the payment of debts, 309; further debate, 310; vote a tie, 311; remarks of the Vice President, 311; gives the casting vote against striking out the first section, 311. _In the House._--Bill to renew the charter of the Bank of the United States considered, 335; moved to strike out the first section, 335; motion intended to test the principle of the bill, 335; Congress possesses no power to incorporate a bank, 335; even if possessed, it is inexpedient to exercise it, 335; ruin to the merchants and embarrassment to the government would not be paramount to sustaining the several obligations of supporting the constitution, 335; reason of the construction given by various persons, 335; this is in its nature obnoxious alarming in its tendency, and its influence irresistible, 335; parts of the constitution which bear any analogy to this subject stated, 336; does the establishment of a bank come within their meaning? 336; it must be shown that the bank is necessary to the operations of the government, that without its aid our fiscal concerns cannot be managed, 337; two things necessary to insure the stability of the government--avoid every measure that will produce uneasiness among the states or that will extend the jurisdiction of the government to subjects purely local, 337; has not the bank produced serious alarm? 337; the abuse of the convenience of obtaining loans is more dreaded than any other evil which will follow this measure, 338; this is the most important subject upon which this Congress will be required to act, 338; connection subsisting between the agricultural and commercial interests, 339; enlightened legislators have entertained but one opinion on this subject both in this country and Europe, 339; utility of bonds cannot be doubted, 339; prosperity of the country attributed to this active capital which has excited industry, 340; accommodations furnished by the bank, 340; principal portion of the trade and business of the Union has been conducted on a paper medium, 340; put down this bank and how are your revenues to be collected, 340; this is not the time or place to inquire whether banks are beneficial or not to the nation, 341; the section admitting of an increase of the capital stock a very dangerous feature, 341; the Articles of Confederation and the present constitution do not differ as regards any power delegated by the states to Congress, 342; interpretation of the constitution, 342; experience shows that the decisions of Congress vary with the men who compose that body, and cannot be cited as settling a principle, 342. This bill aims a deadly blow at some of the best principles of the constitution, 343; this bill assumes the exercise of legislative powers which belong exclusively to the State Governments, 343; one of the most serious dangers this government is threatened with, is the tendency to produce collisions between State and Federal authorities, 344; the great line of demarcation between the powers of the two is well understood, 344; axioms laid down in discussing constitutional questions, 345; sufficient to call upon the advocates of a bank to show its constitutionality, 345; argument of Hamilton, 345; the federal government is said to be sovereign with regard to all the objects for which that government was instituted, 345; this is a petitio principii, 345; it is said, the bank is an innocent institution, 346; one of its most obvious and distinguished characteristics is that it exempts the private property and persons of the stockholders, 346; it authorizes the stockholders to take usurious interest, 346; this bank incorporation possesses other qualities at war with the laws of the several states, 346; it is contended that the right to incorporate a bank is delegated to Congress, and five or six different provisions of the constitution are referred to as giving this right, 347; the very circumstance of so many different heads of authority is conclusive evidence that it has no very direct relation to any of them, 347; the "sweeping clause," 347; Hamilton's mode of reasoning, 347; it is contended that the right to incorporate a bank is included in the power to lay and collect taxes, 347; no man ought to complain of the weakness of a government whose powers may be _reasoned up_ by logic like this, 347; the constitution is not a mere designation of ends for which the government was established, leaving to Congress a discretion as to the means, 348; it is contended that the right to incorporate a bank is implied in the power to regulate trade between the states, 348; it is said to be included in the power to borrow money, 348; absurdities into which this doctrine of implication leads, 349; it is said to be necessary to the regular and successful administration of the finances, 349; one or more state banks in almost every state, 349; it is said, if the bank would be constitutional without the existence of the state banks, it would be equally so with, 349; question to strike out the first section carried, 350; _note_, 350; passage of the bill in the House, 350; _note_, 351. _See Index_, vols. 1, 2, 3. _Bankrupt Act._--_See Index_, vol. 2. BARD, DAVID, Representative from Pennsylvania, 36, 124, 187, 315, 424, 577. _See Index_, vols. 2, 3. BARKER, JOSEPH, Representative from Massachusetts, 36. BARRY, WILLIAM T., Representative from Kentucky, 316; on the admission of the Territory of Orleans as a State, 320. BARTLETT, JOSIAH, Representative from New Hampshire, 424. BASSETT, BURWELL, Representative from Virginia, 36, 125, 187, 315, 424, 577; on the number of seamen in the naval service, 228; urges reform in the expense of the navy, 231; on reduction in the navy, 239, 244; on the claim of Matthew Lyon, 426; on encouragement of privateers, 581; on prize money to the officers and crew of the Constitution, 593; on the imprisonment of American seamen, 594, 595; in favor of a naval establishment, 603; on encouragement to privateer captures, 703; on privateer pensions, 704. _See Index_, vol. 3. _Batture at New Orleans._--In Senate, memorial of Edward Livingston, presented and referred, 118. _In the House._--Resolution to refer the subject of title to the Attorney General for him to collect testimony, &c., 148; the true course is to give the parties the right of appeal from the Orleans court to Supreme Court of the United States, 148; important law points involved, 148; the batture claimed is in the bed of the river, 148; what could the Attorney General do in the case? 148; what influence was his opinion to have? 148; impossible to see how an individual having property, in which he was put in possession in 1804, by a judicial decision, could be dispossessed of it in 1807, 148; this batture never was claimed as private property until after it came into possession of the United States, 149; nothing new to refer a subject to the head of a department, 149; a constitutional difficulty in the case, 149; has Congress the power to decide the validity of this claim? 149; has Congress a right in order to determine the title to landed property, to refer it to any tribunal whatever? 149; admitting all this to be true, it does not apply to the present case, 149; the question is whether it is public property or not, 149; question examined on the ground of the right of the citizen, 150; if a citizen is put in possession of property by a decree of a court, and afterwards dispossessed by military power, where should he come if not to this House to claim redress? 150; this claim should never be confounded with the Yazoo claim, 150; the doctrine _nullum tempus occurrit reipublicæ_, is a dangerous one, 150; the present case stated, 151; is there a precedent for this transaction? 151; the President has not carried the law into effect, 151; the act of 1807 contains two clauses bearing on the subject, 152; if there has been any violation of right, it was in the passage of the law under which the President acted, 152; resolutions offered in the House, 191; laid on the table, 192; bill to provide means to ascertain the title considered, 223; various amendments considered, 223. BAYARD, JAMES A., Senator from Delaware, 26, 121, 176, 264, 403, 571; reports to Senate a bill for a National Bank, 183; moves an amendment to the bill to enable the President to take possession of the country east of the Perdido, 313; against the declaration of war, 418. _See Index_, vols. 2, 3. BAYLIES, WILLIAM, Representative from Massachusetts, 124. BIBB, GEORGE M., Senator from Kentucky, 400, 570. BIBB, WILLIAM W., Representative from Georgia, 36, 125, 188, 315, 425, 577; on the ordinance of 1787, 42; on the ordinance of 1787, 46; on the bill relative to batture at New Orleans, 223; on the admission of the territory of Orleans as a State, 320, 324; on Indian affairs, 428; on the British intrigues, 516, 519; against the renewal of Whitney's patent right, 533; on war taxes, 715. _See Index_, vol. 3. BIDWELL, BARNABAS, 437; _note_, 437. _See Index_, vol. 3. BIGELOW, ABIJAH, Representative from Massachusetts, 317, 424, 577; against the admission of Mississippi, 352; on commercial intercourse with France and Great Britain, 386; on imposing additional duties, 538. _Bill to prevent abuse_ of privileges enjoyed by foreign ministers, 169. BLACKLEDGE, WILLIAM, Representative from North Carolina, 36, 425, 577. _See Index_, vol. 3. BLAISDELL, DANIEL, Representative from New Hampshire, 124, 187, 316; against the admission of Mississippi, 352; on commercial intercourse with France and Great Britain, 377. BLAKE, JOHN, jr., Representative from New York, 36. _See Index_, vol. 3. _Blank ballots, shall they be counted?_--In the House on election for Speaker two blank ballots were cast, shall they be counted? 125; blank pieces of paper cannot be considered as votes, 125; instance, the election for President in 1801, 125; is there to be a Speaker without an election? 125; the committee report that no candidate has a majority, 125; the Speaker may become President and preside over the destinies of the nation, 125; no analogy with the Presidential election, 125; establish such a precedent, and it may put an end to this government, founded on the principle that the majority shall govern, 125; motion for a new ballot carried, 125. BLEECKER, HARMANUS, Representative from New York, 424, 577; on imposing additional duties, 540; against the embargo bill, 550; on the objects of the war, 644. BLOUNT, THOMAS, Representative from North Carolina, 36, 425; on a quartermaster's department, 477. _See Index_, vols. 1, 2, 3. BOONE, DANIEL, petition of, 707. BOYD, ADAM, Representative from New Jersey, 36, 124, 187, 315, 424, 577; on the batture at New Orleans, 149; supports petition of Elizabeth Hamilton, 215; on the reduction of the navy, 242; on foreign relations, 460; on the bill laying an embargo, 544, 545; on an additional military force, 626. _See Index_, vol. 3. BOYLE, JOHN, Representative from Kentucky, 46. _See Index_, vol. 3. BRADLEY, STEPHEN R., Senator from Vermont, 3, 118, 166, 250, 400, 576; appointed President _pro tem._ of the Senate, 26; on a recess of Congress, 412. _See Index_, vols. 1, 2, 3. _Breach of Privilege._--Report of committee relative to the letter of I. A. Coles, 204. _See Index_, vol. 2. BRECKENRIDGE, JAMES, Representative from Virginia, 125, 187, 315, 424, 579. BRENT, RICHARD, Senator from Virginia, 33, 118, 168, 252, 400, 570; on a Bank of the United States, 295. _Bribery._--_See Index_, vol. 1. _Brigadier Generals additional._--In the House the bill to authorize the President to appoint additional brigadier generals considered, 551; if these officers are intended to command the militia the bill should not pass, 551; Governors of States better acquainted with qualifications of the militia officers than the President, 551; what spirit can be in the people to submit to this? 551; no necessity of more generals for the regulars, 551; if this bill passes our government will be as bad as that of Great Britain before the revolution, 551. BRIGHAM, ELIJAH, Representative from Massachusetts, 424, 577; on rules and orders of the House, 471; on imposing additional duties, 541; on an additional military force, 621. _British Intrigues._--Message from the President to Congress, with certain documents, showing that through the British Minister a secret agent was employed in certain of the States, fomenting disaffection to the authorities, and in intrigues to the disaffected, 506; letter of Mr. Henry to Mr. Monroe, with the documents, 506; letter of the Secretary of the Governor of the British provinces to Mr. Henry, employing him as a secret agent, 506; letter of general instructions to Henry by is employer, 507; credential of Henry, 507; answer to the Secretary accepting the employment, 507; answer to the letter of instructions, 508; letters of Henry to the Governor General, from Burlington, Windsor, Amherst, and Boston and Montreal, 513; letter of Mr. Henry to Mr. Peel, with a memorial to Lord Liverpool, for compensation for services rendered, 514; letter of Mr. Peel, containing the answer to the memorial, 514; report of Secretary of State, relative to persons connected with Henry, 515. Motion to print, 515; protest against attributing the sentiments expressed in these letters as belonging to the Federalists, to citizens of Connecticut, 515; no confidence in the statements, 516; a full investigation ought to be had, 516; the papers are honorable testimony in favor of the eastern section of the Union, 516; what is the fact, 516; serious consideration should be given before such gross abuse of any section is published, 517; papers calculated merely to put the people on their guard against emissaries, 517; they show the deep hostility of this foreign power to our government, 517; British Ministers have at some periods of their lives been employed on such business, 517; extracts from letters of Mr. Erskine, 517; a division of the Union is not a new subject, 518; these documents will exhibit to the American people what sort of a nation we have to deal with, 518; is the information useful to us, 518; the subject should be followed up with a full and prompt examination, 518; no difference of opinion in supporting the integrity of the Union, 519; motion to print agreed to, 519; Mr. Henry has done service to this country by this communication, and ought to be protected, 519; question referred to the committee on foreign relations, with authority to send for persons and papers, 519; letter from the British Minister disclaiming all knowledge of John Henry's asserted mission, 522; report from the committee on foreign relations relative to these disclosures, 524; _note_, 525. _British Minister, conduct of_, in the Senate, resolutions relative to, reported, 169; bill relating to privileges of foreign ministers also reported, 169; resolutions approving the conduct of the Executive, in refusing to hold any further communication with Mr. Jackson, considered, 169; peculiarities of our Government, 170; the refusal of the Executive may lead to war, yet Congress alone has power to declare war, 170; Congress should express its opinion on the act of the Executive, 170; this is due to the people, 170; it is due to the Executive, 170; will the President have the co-operation of Congress? 170; it is of national importance that the will of Congress should be expressed, 171; would the conduct of Great Britain be very different under these different conditions of the people and the government, 171; did any people ever gain any thing by dissensions? 171; never wrong to join the standard of your country in a war with foreign nations, 171; are the facts stated in the resolution supported by the correspondence? 172; letter of Mr. Jackson, 172; what does it amount to? 172; the insult is gross and outrageous, 173; other expressions examined, 173, 174; Canning's course, 174; if the facts are justified by the correspondence, what can prevent unanimity on the present occasion? 175; ordered to third reading, 176; passed, 176. _In the House._--An important paper headed "Circular," has not been communicated to Congress, 192; resolution, calling on the President for a copy, 192; despatch of Mr. Canning also called for, 192; improper to call upon the President for that which cannot be officially in his possession, 192; a copy in Secretary's office, 192; motion carried, 192; other papers called for, 192; "Circular" of Mr. Jackson, 193. The first question involves the veracity and dignity of the American Government, and the reputation of a British Envoy, and in some degree the British Ministry, 193; origin of the mission from Great Britain to the United States, 193; what were the circumstances which characterized its progress and termination? 194; if such were the circumstances, does not the occasion require that the American Government take a firm and decided stand? 195; the present is no time for causeless crimination of our Government, 195; the terms offered to us are not honorable and reciprocal, 195; the resolution is rendered peculiarly important by the occasion, 195; there is more than a presumption that Mr. Erskine had the power to enter into the arrangement he made, 195; what did the President know of his powers? 196; did he know that Mr. Erskine had not full power? 196; it was not his duty to know that he had not full powers? 197. Motion to postpone indefinitely the resolution approving the conduct of the Executive relative to the British Minister, considered, 197; the resolution unnecessary and pernicious, 197; it descends to a style of expression unworthy of the country and the dignity of its Government, 198; it looks toward war, 198; a resolution of approbation against all example for the last eight years, 198; some doubts whether the majority were the same party as in former years, 199; the right of approbation implies the right of disapprobation, 199; it is proposed that this solemn assembly, representing the American people, shall descend from its dignity to utter against an individual the language of indignation and reproach, 199; this is to be done under pretence of asserting their rights and vindicating their wrongs, 200; it is no slight responsibility which this House is about to assume, 200; all the other questions agitated in this debate dwindle into insignificance, 200; no speaker yet has taken the precise terms of the resolution as the basis of his argument, 200; the resolution analyzed, 200; it asserts that a certain idea is conveyed which is indecorous and insolent, 200; what is this idea? 201; what are the expressions in which it is conveyed? 201; parts of the letter examined in which the idea is conveyed, 201; a corroborative view of the subject, 202; recapitulation, 203; the resolution merely respects the conduct of the British Envoy, 204; it is not an answer to a message from the President of the United States, 205; it is not a declaration of war, 205; the correspondence between the British Minister and the American Secretary examined, 205; the whole civilized world a spectator of this discussion, 205; resolution ordered to be read a third time, 206; authorities to show the competency of Mr. Erskine's powers, 206; Erskine never entertained a doubt of the competency of his powers, 206; extracts from his letters, 207; the British Government could not disavow the acts of its Minister without incurring the charge of bad faith, 207; past transactions reconsidered, 207; this measure will fix a stain on the American character and hazard the peace and prosperity of the country, 208; fate of every country to cherish demagogues, 208; the letters of Jackson do not contain the insult imputed to them, 209; the insult examined, 209; what were the circumstances upon which the King justified his disavowal? 209; the want of authority in Mr. Erskine assigned as the sole ground, 210; letters further examined, 210; the insult explained away, 210; resolution passed, 211. BROWN, JAMES, Senator from Louisiana, 573. BROWN, JOHN, Representative from Maryland, 124, 188. BROWN, OBADIAH, elected Chaplain of the House, 37. BROWN, ROBERT, Representative from Pennsylvania, 36, 124, 187, 315, 424, 577. _See Index_, vols. 2, 3. BURWELL, WILLIAM A., Representative from Virginia, 36, 125, 197, 315, 424, 594; on an extra session, 103; on permitting Swedish and Portuguese vessels to load, 127; on the petition for a division of the Mississippi Territory, 141; on the Batture at New Orleans, 148; on non-intercourse with Great Britain and France, 155; on trade to the Baltic, 205; opposes the postponement of the resolution relative to the apportionment of representation, 224; on the Bank of the United States, 335; on privateer pensions, 704. _See Index_, vol. 3. BUTLER, WILLIAM, Representative from South Carolina, 187; makes a report on the conduct of General Wilkinson, 248. _See Index_, vol. 3. C CALHOUN, JOHN C., Representative from South Carolina, 425, 577; on foreign relations, 447; on the case of Nathaniel Rounsavell, 529; on mode of relief of Caraccas, 532; makes a report on foreign relations, 554; presents a bill declaring war against Great Britain, 554; on an additional military force, 693. CALHOUN, JOSEPH, Representative from South Carolina, 36, 125, 187, 315. _See Index_, vol. 3. CAMPBELL, ALEXANDER, Senator from Ohio, 176, 250, 400, 566. CAMPBELL, GEORGE W., Representative from Tennessee, 36; on submission to the late dictate England and France, 48; against amendments of the Senate requiring an immediate arming, &c., of public vessels, 97; on an extra session, 103; Senator from Tennessee, 400, 566; on a recess of Congress, 412. _See Index_, vol. 3. CAMPBELL, JOHN, Representative from Maryland, 37, 124, 191, 320. _See Index_, vols. 2 and 3. CARR, FRANCIS, Representative from Massachusetts, 577. _Caraccas, Relief of._--In the House, resolution to authorize the President to procure and send flour for the inhabitants of Caraccas, 532; better to suspend the restrictive system as to them, 532; why should party feelings enter into this proposition? 532; the amendment proposed would virtually repeal the embargo, 532; no necessity to suspend the embargo, 532; other amendments offered, 532; resolution passed, 532; $50,000 voted, 532. _Census of the Union._--_See Index_, vol. 1. CHAMBERLAIN, JOHN C., Representative from New Hampshire, 124, 187, 316. CHAMBERLIN, WILLIAM, Representative from Vermont, 124, 187, 316. _See Index_, vol. 3. CHAMPION, EPAPHRODITUS, Representative from Connecticut, 36, 124, 187, 315, 424, 577. _See Index_, vol. 3. CHAMPLIN, CHRISTOPHER, Senator from Rhode Island, 176, 252. _See Index_, vol. 2. CHAUNCEY, ISAAC, letters to the Secretary of the Navy, 572, 573. CHEVES, LANGDON, Representative from South Carolina, 425, 577; in favor of a naval establishment, 477; on an additional military force, 697; on encouragement to privateer captures, 704; reports a bill to authorize the issue of Treasury notes, 706; on war taxes, 715. CHITTENDEN, MARTIN, Representative from Vermont, 36, 124, 187, 316, 424, 577. _See Index_, vol. 3. CLARKSON'S History of Slavery presented to Congress, 112. CLAY HENRY, Senator from Kentucky, 177, 252; on the bill relative to non-intercourse with France and Great Britain, 177; presents petition of Elisha Winters for reward, for causing the death of the Mississippi River Pirate, 184; gives notice of asking leave to bring in a bill supplementary to the act relative to the punishment of certain crimes, 185; on the occupation of Florida, 261; on incorporating a Bank of the United States, 279; reports against extending the charter of the old bank, 311; reports a bill to enable the President to take possession of the country east of the Perdido, 313; Representative from Kentucky, 425, 577; elected Speaker, first session, 12th Congress, 425; address, 425; on the Statutes of Limitation, 475; on a naval establishment, 496; offers an amendment to the bill to enable the people of Mississippi to form a State Government, 520; on the limits of Louisiana, 523; in favor of the bill laying an embargo, 545; on an additional military force, 613; against encouragement to privateer captures, 703; acknowledges vote of thanks of the House, 719. _See Index_, vol. 3. CLAY, MATTHEW, Representative from Virginia, 37, 125, 187, 315, 424, 577; on an additional military force, 617. _See Index_, vols. 2, 3. CLINTON, DEWITT, voted for as President, in 1812, 574. CLINTON, GEORGE, Vice President, presides in the Senate, 3, 116; elected Vice President in 1808, 27; number of votes for, as President, 27; as Vice President, 27; as Vice President gives casting vote in Senate against U. States' Bank, 311; takes seat in Senate as Vice President, 400; decease of, 411. _See Index_, vols. 1, 2, 3. CLOPTON, JOHN, Representative from Virginia, 36, 187, 319, 427; on non-intercourse with Great Britain and France, 112. _See Index_, vols. 1, 2, 3. COBB, HOWELL, Representative from Georgia, 125, 187, 315, 425. _See Index_, vol. 3. COCHRAN, JAMES, Representative from North Carolina, 125, 187, 315, 435, 580. COLES, ISAAC A., letter to the Speaker of the House, 183. _See Index_, vol. 1, 2. _Cod-Fisheries._--_See Index_, vol. 1. _Commerce of the United States._--_See Index_, vol. 1. _Committees, Select_, resolution relative to formation of, 426; members of, in House, 426. _Compensation of President and Vice President._--_See Index_, vols. 1, 2. CONDICT, JOHN, Senator from New Jersey, 3, 118, 168, 252, 400. _See Index_, vols. 2, 3. CONDIT, LEWIS, Representative from New Jersey, 424, 577. _Congress_, second Session of Tenth, 3; meeting of the two Houses to count Electoral votes, 27; adjournment of second Session of Tenth, 114; first Session of Eleventh, 116; third Session of Eleventh Congress, 250; third Session of Eleventh Congress adjourned, 312; adjournment of third Session of Eleventh Congress, 399; commencement of first Session of Twelfth Congress, 400; second Session of Twelfth meets, 566. _Extra Session._--_In House_, motion to alter the time of the next meeting of Congress, 101; moved to strike out May, for the purpose of inserting September, 102; this is a momentous crisis, 102; country in a situation of extreme danger, 102; Congress should be constantly in session till a more favorable state of affairs exists, 102; nothing likely to occur to do away with the necessity of an extra session, 102; why should Congress come here at the time proposed? 102; a new President comes in, who will desire communication with our ministers before the meeting of Congress, 102; occurrences are presenting themselves every day, requiring some other ground to be taken, 102; a total abandonment of the ocean will be submission, 102; are we to renew negotiation, when every circumstance manifests that it would be useless? 102; the present suspension of commerce and discontents at home, are sufficient reasons for calling Congress earlier than December, 103; new Administration should meet Congress as early as possible, 103; war the only means to secure the interest and honor of the nation, 103; reasons that Congress should meet in May, 103; is the nation to be saved by long speeches? 103; forty-eight hours sufficient to pass all laws for the present crisis, 103; an early session will contribute to tranquillize the minds of the people, 103; if peace is attainable, we must have it; if not, then war, 103; necessary to change our situation previous to next meeting of Congress, 103; reason of the fear in Great Britain that Parliament would not meet often enough, 104; Congress do more good by staying away, 104; leave an extra session to the Executive, 104; motion to strike out lost, 104; bill passed, 104. _In the Senate_, resolution offered for a recess from the 29th of April, 412; ordered to be engrossed, 412; moved to fill the blank with "4th Monday in June," 412; sufficiently early to take measures in consequence of the expiration of the embargo, 412; a long time would accommodate better than a short time, 412; effect on the public mind the same, 412; the question should not be decided on the mere ground of personal convenience, 412; an adjournment for any length of time, like deserting our posts, 412; not deserting our posts, 413; by staying here, Congress cannot expedite the measures ordered, 413; eighth of June adopted, 413; resolution passed, 413. _Connecticut_, vote for President, in 1808, 27; in 1812, 573, 711. _See Index_, vols. 1, 2, 3. _Constitution and Guerriere_, letter from the Secretary of the Navy, on the action between, 593; bill to compensate the officers and crew of Constitution frigate, 709; considered, 709, 710; bill to compensate officers and crew of, considered, 717, 719. _Contested Elections._--_See Index_, vols. 1, 3. _Convoy System._--In the House, bill reported to employ public armed vessels to convoy the lawful commerce of the United States, 225; moved to discharge the Committee of the Whole, 226; embraces two important principles not to be discussed in committee, 226; motion lost, 226. COOK, ORCHARD, Representative from Massachusetts, 36, 141, 352; in favor of an immediate arming of the public vessels, 97, 98; on additional duties on English and French goods, 109. _See Index_, vol. 3. COOKE, THOMAS B., Representative from New York, 424, 580. COX, JAMES, Representative from New Jersey, 124, 187. CRAIG, Sir J. H., his instructions to John Henry, 507. CRAWFORD, WILLIAM, Representative from Pennsylvania, 124, 187, 315, 424, 577. CRAWFORD, WILLIAM H., Senator from Georgia, 3, 121, 168, 250, 400, 566; on the repeal of the embargo act, 11; on incorporating a Bank of the United States, 266, 305; on an increase of the navy, 407; elected President _pro tem._ of the Senate, 409; presides in the Senate as President _pro tem._, 566. _See Index_, vol. 3. CRIST, HENRY, Representative from Kentucky, 125, 188. CANNING, Mr., extract from speech of, in Parliament, 120. _Cuba_, emigrants from.--In Senate, resolution relative to, offered, 121; referred, 122; further resolution, 122. _In the House._--Bill relative to the remission of certain penalties considered, 163; the bill, 163; opinion of Court of South Carolina, 163; the former act on the importation of slaves, 163; present case directly violates that law, 163; what reason for enacting this law, if the principles of the law of 1807 were correct? 164; this is a case of a peculiar nature, attended with singular circumstances, 164; the laws of South Carolina forbid bringing those persons into the State, 164; the persons bringing them, must give security to have them carried out, which could not be done under the non-intercourse law, 164; slaves brought to New Orleans, 164; the objects of this bill do not appear on the face of it, 164; bill passed, 165. CULPEPER, JOHN, Representative from North Carolina, 36. _See Index_, vol. 3. _Cumberland Road_, report on, 530. _See Index_, vol. 3. CUSHING, T. H., Adjutant-General, letter of, 712. CUTTS, CHARLES, Senator from New Hampshire, 250, 400, 566. CUTTS, RICHARD, Representative from Massachusetts, 36, 124, 187, 315, 577; moves to strike out "seventy-fours," and insert "frigates," 606. _See Index_, vols. 2, 3. D DANA, SAMUEL W., Representative from Connecticut, 36, 124, 187; on necessity of additional revenue cutters, 47; on the immediate arming of the public vessels, 98; on a vote of approbation of the conduct of the Executive, 128; on prosecutions for libel, 134; on amendment to, 137; on non-intercourse with Great Britain and France, 152, 161; on an investigation of the Navigation Laws, 188; on the call on the President for papers, 192; on the torpedo experiment, 218, 220; on the loan bill, 227; on reform in the expense of the Navy, 230; on reduction of the Navy, 243; Senator from Connecticut, 250, 400, 570. _See Index_, vols. 2, 3. DAVENPORT, JOHN, jr., Representative from Connecticut, 36, 124, 187, 315, 424, 577; on the proceedings on counting the electoral votes, 105. _See Index_, vols. 2, 3. DAVIESS, JOSEPH HAMILTON, _note_, 435. DAVIS, ROGER, Representative from Pennsylvania, 424, 578. DAWSON, JOHN, Representative from Virginia, 36, 125, 187, 315, 424, 577; moves to refer the letter of Robert Fulton, 214; reports on, 214; supports petition of Elizabeth Hamilton, 215; on the ratio of representation, 432; on foreign relations, 452; on the burning of Richmond Theatre, 474; on the petition of Ursuline Nuns at New Orleans, 476; on the limits of Louisiana, 523; offers a resolution of honor to officers and seamen of the Constitution, for the capture of the Guerriere, 578; on compensation to the officers and crew of the frigate Constitution, 709. _See Index_, vols. 2, 3. DEANE, JOSIAH, Representative from Massachusetts, 36. _See Index_, vol. 3. _Debates, reporting of._--_See Index_, vol. 2. DECATUR, STEPHEN, his letter to the Secretary of the Navy 598. _Defensive Measures against Great Britain, under John Adams._--_See Index_, vol. 2. _Delaware_, vote for President, in 1808, 27; in 1812, 573, 711. _See Index_, vols. 1, 2, 3. _Delegates from Territories._--_See Index_, vol. 1. DESHA, JOSEPH, Representative from Kentucky, 36, 125, 187, 315, 425, 577; on submission to the late edicts of England and France, 69; on Foreign Relations, 450; on an additional military force, 696. _See Index_, vol. 3. DINSMOOR, SAMUEL, Representative from New Hampshire, 424, 577. _Diplomatic Intercourse._--_See Index_, vol. 2. _Divorces_ in the District of Columbia, report on, 505. _See Index_, vol. 3. DUNN, THOMAS, elected doorkeeper of the House, 126; elected sergeant-at-arms to the House, 425. DURELL, DANIEL M., Representative from New Hampshire, 36; in favor of immediate arming of the public vessels, 100; on an extra session, 103. _See Index_, vol. 3. _Duties on Imports._--In Senate, bill for imposing additional duties read the third time, 31; motion to postpone to a distant day, 31; the subject is a commercial one exceedingly important, 31; the bill can be advocated only upon the ground that a war is about to ensue, and to prepare the public treasury to sustain its prosecution, 32; but neither the one nor the other is expected or necessary, 32; Gallatin's reports, 32; the measure will also be both unequal and unjust, 32; the new duty will operate as a bounty to forestalled and speculators, 32; bill passed, 32. _In the House._--The bill to impose additional duties considered, 107; motion to confine increased duties to goods of England and France, 109; motion lost, bill ordered to be engrossed, 109. _Manufactures, Domestic._--In the House, resolution to lay an additional duty on coarse hemp and flax considered, 428; cotton added, 428; the proposition should include all the domestic manufactures of the country, 428; the present a favorable time to adopt some measures to encourage and support domestic manufactures, 428; merely a proposition to instruct a committee, 428; laid on the table, 428; taken up, 431; amendment laying a duty on salt moved, 431; irregular manner of proceeding, 431; further debate on the practice of the House, 431; ill-timed to tax an article when it may be very difficult to procure it, 431; why this great cry about domestic manufactures? 432; what will be the effect of taxing salt, 432. _In the House._--Engrossed bill laying additional duties, 538; the creation of a public debt ought to be accompanied with the means of its extinguishment, 538; this is the true secret of rendering public credit immortal, 538; it is surprising to learn that doubling the duties is the only means to be provided for this purpose, 539; this will be a most unpopular tax, 539; it is an unjust measure, 539; what will be the consequence of passing the bill? 539; great changes have taken place since the adoption of the present tariff, 540; three purposes intended to be furthered by duties on imported merchandise, 540; the objections to the bill are palpable and obvious, 540; its tendency to promote smuggling, 541; the unfortunate policy adopted in 1806 has destroyed the purity and elevation of commercial morals, 541; a reliance on the impost as the means of supporting the war in connection with an abandonment of the internal taxes, teaches that our Government is unfit for the purpose of foreign and offensive war, 541; the protection and regulation of commerce has become a prime object of legislation, 541; it is the cause of war, 542; this increase of impost is a tax which will operate unjustly and unequally, 542; burden on the people of the Eastern States, 542; desirable to recommit the bill in order to learn the sentiments of the House on the repeal or the partial suspension of the present non-importation act, 542; if this act was suspended and we had a trading and not a fighting war, we should have sufficient revenue under the present rates of duties, 543; letter of the Secretary of the Treasury on the subject of revenue examined, 544; a very left-handed way of encouraging the manufactures of this country, 543; motion to strike out the words "one hundred" before per centum lost, 543. _See Index_, vols. 1, 2, 3. _Duties on Tonnage._--_See Index_, vol. 1. E EARLE, ELIAS, Representative from South Carolina, 425, 577. _Electoral Votes for President_, examination and counting of, 27. _Opening and Counting._--In House, resolution offered to notify the Senate, 105; it is now proposed that the Senate come to the House, and that the Speaker leave the chair to make room for the President of another body, 105; such a proceeding would derogate from the dignity if not the rights of this body, 105; a respect we owe ourselves and the people never to suffer the privileges of this House to be diminished, 105; in counting the votes the House of Representatives is not assembled as a distinct body, 105; propriety in this course because by the constitution the Vice President is to open the votes, 105; moved that when the Senate was introduced the Speaker relinquish the chair to him, 105; propriety of the President of the Senate presiding at a joint meeting, 105; as regards the privileges of the House against the claims of the other, the ninth part of a hair was important, 105; the English Commons obtained their privileges inch by inch, 105; if he comes to this House, the President of the Senate comes by courtesy, and can assume the chair only as a matter of favor, 106; the constitution prescribes the powers of each body, and no fear of encroachment, 106; motion carried, 106; votes counted, 106; counting of, 573, 711. _See Index_, vols. 1, 2, 3. _Electors of President._--_See Index_, vol. 1. ELLIOT, JAMES, Representative from Vermont, 36. _See Index_, vol. 3. ELLIOT, JESSE D., letters to the Secretary of the Navy, 571, 572. ELY, WILLIAM, Representative from Massachusetts, 36, 124, 187, 315, 424, 577; on arming and classing of the militia, 708. _See Index_, vol. 3. _Embargo._--In Senate resolution to repeal the act laying an embargo offered, 5; light in which it has been viewed by France, 5; not a measure of hostility or coercion as applied to her, 5; little effect on England, 5; could America expect to starve her? 6; it was a farce, 6; ample time had been given for her to make other arrangements, 6; what accounts have we from there? 6; they can actually purchase provisions cheaper now from other places than they formerly had done from us, 6; turn to another article of trade, cotton, 6; it has been said a want of this article would distress the British manufacturers and produce clamor among them, and hence accelerate the repeal of the Orders in Council, 6; are not all the evil consequences anticipated from the embargo likely to be realized? 6; Great Britain become the carriers of the world, these carriers will supply themselves, 6; get supplies of cotton elsewhere, 6; this embargo instead of operating on those nations which had been violating our rights, was fraught with evils and privations to the people of the United States, 7; it should be abandoned as a measure wholly inefficient for the objects designed, 7; some thought its efficiency would be secured by adding a non-intercourse law, 7; this idea futile, 7; the United States are consumers of British products, 7; what had patriotism really done? 7; non-intercourse law cannot be executed, 7; party spirit should now have been laid aside, and all consulted for the common good, 7; if the spirit of commercial speculation has overcome all patriotism, it is time foreign intercourse should cease, 7; the proposition for repeal hardly merits respect or serious consideration, 8; a most important subject, deeply implicating, and perhaps determining the fate of the commerce and navigation of this country, 8; our commerce has unquestionably been subject to great embarrassment, vexation, and plunder from the belligerents of Europe, 8; both France and England have violated the laws of nations, 8; the one professes to relent at the inconvenience she occasions you, and the other in addition to depredation and conflagration, treats you with the greatest disdain, 8; their conduct gave rise to the embargo, 8; if it has been proved by experience to be inoperative so far as regards them, and destructive as respects ourselves, it should be repealed, 8; the propriety of this is now the question, 8; three points naturally to be considered, 8; the security which it gave to our navigation, and the protection it offered our seamen, its effects on France and Great Britain in coercing them to adopt a more just and honorable policy towards us, the effects it has and may produce on ourselves, 8; it has already answered all that can be expected in regard to security to navigation and seamen, 8; its longer continuance will counteract these objects, 8; its operation is nugatory on France, 9; its operation on Great Britain, 9; the subject should be taken up with coolness, 10; it is charged that there is a disposition to break down commerce, for the purpose of erecting manufactures on its ruins, 10; the charge a mere electioneering trick, 10; the ground is taken that the embargo has prevented all our commerce, 10; this is not shown, 10; operation of the Decrees of France, 10; operation of the Orders in Council, 10; a tribute required for license to trade, 10; has the embargo been productive of the consequences expected to result from it, 11; it has not had a fair trial in consequence of misrepresentations, 11; has the embargo operated more upon the United States than on the European powers, 11; one object of the resolution doubtless to obtain information of the operation of the embargo throughout the Union, 11; the sentiments of the people of Georgia on the subject, 12; effects of the measure on ourselves, 12; the produce of the lands of Georgia lies on hand, 12; it is said that Great Britain will find some source whence to obtain the supplies she has heretofore got from us, 12; the cotton interest is willing to run the risk of the continuance of the embargo, 12; it is said this measure cannot be executed, 12; it has been so far executed as to produce a good effect, 12; the charge of an intention to destroy commerce examined, 13; a disposition to make this measure permanent, 13; this measure intended and calculated to promote the interests of France, 13; no danger from war, it is said, except through a repeal of the embargo, 13; statements in relation to the present views of England favorable to the embargo are not entitled to credit, 13; cause of the change in Mr. Canning's language, 14; the Essex resolutions, 14; how are these orders and decrees to be opposed but by war, except we keep without their reach, 14; attempts to ridicule the measure exposed, 14; it is said that if the embargo is repealed we can carry on a safe and secure trade to the extent of nearly four-fifths the amount of our domestic productions, 14; this statement examined, 15; if the embargo had not been laid, would the British aggressions have stopped with the Orders in Council, 15; if the embargo is repealed, and our vessels suffered to go out, it will expose us to new insults and aggressions, 15; it is said that a perseverance in a measure opposed to the interests and feelings of the people may lead to opposition and insurrection, 15; this is an argument _in terrorem_, 15; more information needed on this subject, 16; better if the proposition had expressed indignation at the injuries our Government had received, 16; situation of the European world when Congress deemed it necessary to pass the embargo, 16; prudence and policy dictated this measure, 17; the mission of Mr. Rose, 17; effects of the measure on the country, 18; feelings of gentlemen who once possessed the power of the nation, but have now lost it, 18; the outrages of the belligerents should have awakened such indignation as to suppress these feelings, until some measures could be devised to meet the crisis, 18; the greatest inconvenience perhaps attending popular governments stated, 19; two objects contemplated by the embargo, 19; the first, precautionary, operating upon ourselves, 19; the second, coercive, operating upon the aggressing belligerents, 19; the first considered and explained, 19; effects of the embargo, 20; our fate is in our own hands, with union we have nothing to fear, 20; danger of exposing one's self to the charge of being under British influence, 21; the patrons of the miscreants who utter these slanders know better, 21; the wrongs of Great Britain to us intended to be removed by the treaty, 21. _Enforcement of the Embargo_, bill making further provision for, reported, 21; sections of the bill, 21; an embargo over a country like ours a phenomenon in the civilized world, 21; opinions relative to the embargo, 21; course proposed to be pursued, 22; this bill bears marks of distrust of the people, entertained by the Government; it places the coasting trade under further vexatious restraints, 22; particulars in which it is placed under the regulation of the President, 22; other sections intrench on the ordinary concerns of the great body of the people, 22; the military may be employed by agents under this bill, 23; authority of the marshal competent to execute the laws, 23; further objections to the bill, 23; the bill presents temptations for addressing the popular sensibility too strong to be resisted by gentlemen in the opposition, 23; they have presented its provisions in an alarming aspect, 23; the bill contains no new principle, every provision is justified by precedents in pre-existing laws, 24; it is said the embargo is a permanent measure, and its effects ruinous at home and ineffectual abroad, 24; it is said the public councils are pressing on to measures pregnant with most alarming results, 24; the great principle of objection, it is said, consists in the transfer of legislative powers to the Executive Department, 24; objections to the provisions of the bill relative to the coasting trade, examined, 25; power granted to the President over the military force in previous acts of the Legislature, 26; passage of the bill, 26. _In the House._--Many resolutions have been submitted on the subject of foreign relations and the embargo, 40; surprising to see so many resolutions and none contemplating its continuance, 40; where is that spirit which separated us from Great Britain? 40; just as our measure of last year is beginning to operate we are called upon to repeal, 40; what is the purport of the proclamation issued by one of the belligerents? 41; resolutions offered to exclude vessels of belligerents having force decrees or orders violating the lawful commerce of the United States; also imports from such powers, and also to inquire into the expediency of amending the embargo act, 41; it is time for those who think the embargo a lawful and proper measure, to come forward and declare it, 41; neither of the powers of Europe have shown any disposition to relax, neither should we, 41; only three alternatives are open to us--war, embargo, or submission, 41; the last out of the question, 41; shall it be war or embargo? 41; let that be adopted which will best maintain our rights and independence, 41; the embargo does not cause the pressure on the people, 41; public opinion in the Northern part of the Union requires the embargo to be raised, 41; let the debate go on, 41; first and second resolutions agreed to, 42. _Embargo, Temporary._--Bill for, passed in the Senate, 410; In the House, message received from the President relative to laying an embargo for sixty days, 544; bill reported, read twice, and referred to the Committee of the Whole, 544; moved to strike out sixty, and insert one hundred and twenty days, 544; the time will be much too short for the whole amount of American property abroad to return, 544; motion lost, 544; is this to be considered as a peace or war measure? 544; it is understood to be a war measure, and it is intended it shall lead directly to it, 544; objections to parts of the bill, 544; drafted according to the wishes of the Secretary of the Treasury, 544; if it is a precursor to war what is the situation of our fortresses and of the country generally? 545; none can question the propriety of the proposition, 545; are we now to cover ourselves with shame and indelible disgrace by retreating from the measures and grounds we have taken? 545; the conduct of France may be a subject of future consideration, 545; no difficulty or terror in the war except what arises from novelty, 545; a source of pride that the Executive has recommended this measure, 545; this is not a measure of the Executive, but is engendered by an intense excitement upon the Executive, 545; the people of the country will consider it a subterfuge for war, 545; at the end of sixty days we shall not have war, because the Executive dare not plunge us in war, 545; are we prepared to assail the enemy or repel her attacks? 545; motion to strike out first section lost, 545; the President does not mean war, 545; unless Great Britain relents we must make war, says the President, 546; we should not go to war unprepared, 546; what occurred in the Committee of Foreign Relations, 546; if you mean war, if the spirit of the country is up to it, why have you spent five months in idle debate? 546; not possible to commence war with safety within four months, 546; warning of the danger and ruin which threaten our defenceless cities and towns, 547; the intelligent part of the community are against war, 547; bill ordered to be engrossed for a third reading, 547; moved to read third time to-morrow, 547; policy on the part of the majority should dictate this indulgence, 547; the minority has acted with more propriety than was ever known, 547; other reason for delay, 547; motion lost, 547; bill passed, 547. Bill returned to the House with amendments by the Senate, 548; moved to postpone indefinitely, 548; it is a pure, unsophisticated, reinstated embargo, 548; the same power which originates can continue this oppressive measure, 548; it is not an embargo preparatory to war, but an embargo as a substitute for war, 548; this point examined, 548; Heaven help our merchants from an embargo protection, 549; an express was sent off on the day preceding the Message, 549; is this measure expedient, and can it be executed? 549; this House should desist from the dangerous course they are pursuing, 550; views of Great Britain, 550; motion to postpone, 550; main question ordered, 550. _See Index_, vol. 3. EMOTT, JAMES, Representative from N. Y., 124, 187, 315, 424, 577; on Miranda's expedition, 143; on commercial intercourse, 353; presents petition of merchants of New York, 432; on an additional military force, 668. EPPES, JOHN W., Representative from Virginia, 37, 125, 187, 315; on the resolution calling on the President for papers, 192; on the convoy system, 225; on commercial intercourse with France and Great Britain, 360. _See Index_, vol. 3. EVANS, OLIVER, claim for different applications of steam-power, 404. _Executive Departments._--_See Index_, vol. 1. _Expatriation._--_See Index_, vol. 2. _Expenditure of Public Money._--In the House, a resolution to appoint a committee to inquire into the expenditure of public money, 429; the result of a former inquiry, 429; how do pursers in the Navy receive their money? 429; extract from a letter, 429; the abuses should cease, 429; resolution agreed to, 430. _Extra Session._--Bill to alter the time of the meeting of Congress considered, 717. _See Congress._ F _Federal Judges_, amendment of the constitution to secure the removal of, 530. _See Index_, vol. 3, _Amendments of the Constitution_. FINDLAY, WILLIAM, Representative from Pennsylvania, 36, 124, 187, 315, 424, 577; on a vote of approbation of the conduct of the Executive, 128; on foreign relations, 454. _See Index_, vols. 1, 2, 3. FISK, JAMES, Representative from Vermont, 36, 315, 424, 577; on non-intercourse with Great Britain and France, 153; on the Torpedo experiment, 220, 221; offers a resolution relative to the apportionment of representation, 223; opposes postponement of the resolution relative to the apportionment of representation, 224; on the ratio of representation, 318; on the Bank of the United States, 338; against a naval establishment, 504; on the pay of the army, 587; on amendments to the naturalization law, 594. FISK, JONATHAN, Representative from New York, 124, 187, 315. _See Index_, vol. 3. FITCH, ASA, Representative from New York, 424, 577. _Flag of the United States._--_See Index_, vol. 1. _Florida, West, occupation of._--In the Senate, bill to extend the laws of the Territory of Orleans over West Florida, reported, 252; debate on its passage, 253; the first important question is whether the United States have a good title to the territory, 253; what were the limits of Louisiana before the treaty and cession of 1762-3 between France, Spain, and Great Britain? 253; the treaty of cession between the United States and France examined, 253; the expediency of taking possession of this territory cannot be doubted, 254; other grounds upon which this bill might be supported, entirely independent of the cession, 255; state of the Spanish colonies in relation to the Spanish Government, 255; this bill may be justified independent of title by the law of self-preservation, 255; this bill contains two important provisions, it incorporates with the territory of Orleans the province of West Florida, and it extends to that province the laws now in force in the Territory, 255; two questions naturally involved, 1st, has the United States a good title? 2d, is it expedient? 256; authority of the President to direct a forcible occupation of the Territory a preliminary question, 256; has not this proclamation transcended the limits of the President's power? 256; what is the nature and import of this proclamation? 256; it is not only war, but an act of legislation too, 256; new power conferred by acts of Congress, 257; not a shadow of authority exists, 257; title examined, 257; as founded on the doctrines of estoppel and occupancy, 257; title of France, 258. An instrument thus obtained not obligatory, 258; title derived under the Treaty of St. Ildefonso, 258; cause of the war of 1756, 258; its results, 258; remarks on the evidences and facts relative to title, 260; our title indisputable against both France and Spain, 261; the treachery by which the King of Spain is alleged to have lost his crown, 261; our title to West Florida examined, and the propriety of the recent measures for the occupation of it, 261; our title depends on the limits of the province of Louisiana, and a just exposition of treaties, 261; to determine this, it is only necessary to fix the eastern boundary, 261; the province of Louisiana comprised West Florida previous to 1762, 262; what was then done? 262; what, then, is the true construction of the treaties of St. Ildefonso and of April, 1803? 262; is the proclamation an authorized measure of war and legislation? examined, 263; had the President failed to embrace the opportunity he would have been criminally inattentive to the dearest interests of his country, 264. _Floridas, occupation of_, an act to authorize, 422; postponed, 423; resolution relative to, 561. _Florida, purchase of._--_See Index_, vol. 3. _Foreign Ministers, abuse of Privileges._--_See Index_, vol. 3. _Foreign Relations._--In House, resolution that the United States cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of Great Britain and France, considered, 48; the resolution too clear to need demonstration, 48; the committee believed there could be no difference of opinion on the subject of the resolution, although there might be on the mode of resistance, therefore it was presented, 48; not necessary to show that the decrees of France and orders of Great Britain were an assumption of power to give laws to this country in direct violation of our neutral rights, 48; the real question is, shall we govern ourselves or be controlled by the will of others? 49; upon our offer to remove the embargo if either party would rescind, no heed has been given, 49; the proposition now offered unexceptionable, 49; the course advocated in the report of the committee is loathsome, 49; the resolution offers a solemn pledge to the nation that the present system of public measures shall be totally abandoned, 49; adopt it and there is an end of the policy of deserting our rights under the pretence of maintaining them, 49; the terms of the resolution contain an assertion and a pledge, 49; none need have difficulty in screwing their courage up to the assertion, 50; the pledge is a glorious one, 50; what is submission and what does the pledge not to submit imply, 50; objects of the edicts and orders, 50; tenor of publications from the East which are sent here, 50; objects of the two powers with regard to us, 51; efforts of our Minister, 51; the chapter of negotiation, 52; the conduct of officers of the British navy and the connivance of the British government, 52; further aggressions, 53; the present an extraordinary crisis, 54; examination of the situation of this country in relation to France and Great Britain, and also the injuries and aggressions they have committed upon our neutral rights, 54; injuries of Great Britain, 54; principal injuries committed by France, 55; consequences which result from this series of injuries, 55; the rude treatment of the report of the committee, 56; how did the report originate, 57; not one of all the principal positions contained it which is true in the sense and to the extent assumed by the committee, 57; the alternatives of submission, war, or embargo considered, 57; what is disgraceful submission? 58; we can trade not only with one, but with both these belligerents notwithstanding these restrictive decrees, 58; the other alternative of war with both is absurd, 59; further examination of the report, 59, 60; objections considered, 61. A silent vote on the proposition would have produced a better effect than this discussion, 63; the report seems to consider the system recommended as including a continuance of the embargo, 63; the embargo is severely felt by the country at large, 63; in some places it requires all the exertions of patriotism to support it, 63; members have contended as to which section suffered most, 64; it is said that this is a delusion, 64; it is thought the country cannot feel much as it feeds well, 64; in point of revenue how does it work? 65; as a measure of finance it has laid the axe to the root, 66; would the constitutional convention have given to Congress power to lay an embargo for one or two years, if it had been agitated? 66; the character of this measure examined, 66; it is said the embargo is evaded, and thus has not been so tightly drawn with regard to Great Britain, 67; the continuance of our measures may divert trade from us to other channels, 67; it is said, the honor of the country is at stake, a removal of the embargo would be submission to Great Britain, 68; what is the nature of the rights in question, 68. The continuance of the embargo as an assertion of our rights is not an efficient mode of resistance, 69; if gentlemen were really Americans, they would not tamely give up the honor of their country by submitting to French decrees and British orders, 70; do they mean that independence should be wrested from us without a struggle? 70; what are the reasons why the embargo has not come fully up to the expectations of its supporters? 70; yet it has been particularly serviceable in many instances? 70; a retrograde step at this time would mark the Government with pusillanimity, 70; effect of the French decrees, 71; results of the British orders, 71; the House of Representatives only of Maryland have passed resolutions against the embargo, 72; the militia system caused the change in Maryland and not the embargo, 72; it is said, the embargo has destroyed the commerce of the country, 72; the embargo is a disagreeable thing, but by swallowing it, we shall bring health, 73; some States have passed laws for suspending executions, 73; the only question is, shall we defend ourselves or shall we submit? 74; upon this question, in every point of view too clear to admit of a doubt, a debate has arisen embracing all our foreign relations, 75; the offer to suspend the embargo laws for a suspension of the Orders in Council, has been contemptuously rejected, those orders justified, and an extension of their operation threatened, 75; in this crisis every man should do his part, 75; the original imposition of the embargo was wise in a precautionary point of view, 75; after the operation of the Orders in Council was known insurance could not have been effected at Baltimore to London for 90 guineas per cent., 75; mercantile distresses have been exaggerated, 76; the embargo has preserved us from bloodshed, 76; if the embargo has failed it is no cause of triumph, 76; it is asked if we are prepared to violate the public faith, 76; will submission pay the public debt? 76; it is said the embargo itself is submission, 77; it is the opponents of the measure who call it submission, 77; who, in the United States, are most anxious to have the embargo repealed? 77; ultra-federalists, 77; the embargo is the most deadly weapon we can use against Great Britain, 77; what is the nature of her wants, and what her capacity and means of supply? 77; there are not contained within the British empire at this time supplies for the home and colonial consumption, 78; to remove the embargo will betray a timid, wavering, indecisive policy, 78; supplies should be withheld from Spain and Portugal, as Great Britain is coerced through them, 78; the embargo preserves this nation in peace, while it presses those who injure us, 78; it should not be repealed in part, 79; give merchants a spot as large as the square of this House to go to, and they would carry away the whole of our surplus produce, 79; the Orders in Council originated in deadly hostility to us, 79; South Carolina is interested, by the suspension of our trade, in the article of cotton alone, to an amount greater than the whole revenue of the United States, 80; objections examined and considered, 81; it is said the embargo should be removed because it has operated as a bounty to the British trade, 81; constitutionality of the embargo settled, 82; it is said if Great Britain, during the Revolution, maintained a war against the world, will she truckle now? 82; deposition of sundry English merchants before the House of Lords, 82; it is said the destruction of St. Domingo has caused such a demand for sugar, that the cultivation of cotton in the British West Indies has ceased, 83; it is disgracefully said that, nations like individuals, should pocket their honor for money, 83; why are we called upon to make the declaration of this resolution? 84; it is not expedient to adopt the second resolution, 84; what will be the effect of the embargo, if continued, as respects ourselves? 85; its pressure is on the whole country, and it carries misery throughout the land, 85; a better line of conduct for the United States to pursue pointed out, 85; will most of our property be taken by the belligerents if the embargo is removed? 86; merchants do not consider the risk very great, 86; we are not reduced to the dilemma of making choice out of any of the alternatives recommended by the committee, 86; the resolution is unnecessary because no clear, definite, practical results can flow from it, 87; it is said we are bound to vote, whether the assertion is true or false, 87; it is said the resolution is harmless at the worst, 88; it should be rejected on account of the "company it keeps," 88; we have gone on so long in error that it is not easy to say what should be done, 88; a retrospective view of our affairs, 88, 89, 90; it may be said, what has happened could not be prevented, 91; it is said, if we suffer our commerce to go on the ocean, it will be crippled by France or Great Britain, 92; nothing so well calculated to call out the resistance and obstinacy of Great Britain, as this measure of the embargo, 92; the King of England dare not yield to our embargo, 93; the object of our present legislation should be to relieve our country from the distresses under which it groans, 93; resolution divided by omitting the words "and France," 94; first part passed in committee, 94; second part passed, 94; resolution passed in the Senate, 94; other resolutions passed, 94. _In the House._--The report of the Committee on Foreign Relations considered, 432; explanation of the views of the committee, 432; the report is only in part, with the intention to follow up the resolutions if adopted, with ulterior ones, 432; committee satisfied that all hope of accommodating our differences with Great Britain by negotiation, must be abandoned, 433; are the maritime rights which Great Britain is violating, such as we ought to support at the hazard and expense of a war? 433; no prospect of a speedy repeal of the Orders in Council, 433; we are a young nation, and cherish some pride and spirit, as well as justice and moderation, 433; we ought to go to war, in opposition to the Orders in Council, 433; the United States can make a serious impression upon Great Britain, at sea, even without a navy, 433; question taken on the first resolution for filling the ranks of the present army, and carried, 434; question on the agreement to the second resolution, authorizing the raising an additional regular force, 434; are seven millions of Americans to be protected in their lives and liberties by ten thousand vagabonds, who were fit food for gunpowder? 434; it would be necessary to know the ulterior views of the committee, 434; for what purpose are these troops wanted? 434; the gentleman was a member of the committee, and attended its sittings, 434; it is due to the committee to explain their conduct in the outset, 434; Republicans should remember that a few years ago, a set of men who held different politics, held the reins of Government, 435; if your minds are resolved on war, you are still Republicans, 435; what are we called upon to decide? it is whether we will resist by force the attempt made by that Government to subject our maritime rights to the capricious rule of her will, 435; war is already begun, 435; it is a question of peace or war, 436; how can gentlemen calling themselves Republicans, advocate such a war? 436; those who opposed the army are denounced as partisans of France, 436; in 1805, the committee recommended raising troops owing to the defenceless condition of the frontiers; yet, this report was considered too strong by the House, 437; it is insinuated that the massacre on the Wabash was instigated by the British Government, 437; _note_ 437; this war of conquest, for the acquisition of territory and subjects, is to be a new commentary on the doctrine that republics are destitute of ambition, 438; the war spirit in gentlemen from the South, not surprising, 438; gentlemen avowed they would not go to war for the carrying trade, yet they stickle for our commercial rights, and will go to war for them, 438; gratifying to find the demoralizing and destructive consequences of the non-importation law acknowledged, 439; the committee has out-stripped the Executive, 439; our people will not submit to be taxed for this war of conquest and dominion, 439; the defenceless state of our seaports, 440; danger arising from the black population, 440; the unjust and illiberal imputation of British attachments against certain characters in this country, 440; further debate 441; the expulsion of the British from their North American possessions, and granting letters of marque and reprisal against Great Britain, are contemplated, 442; for the first time there seems to be but one opinion with the great majority of this body, that war with Great Britain is inevitable, 442; we must now oppose her further encroachments by war, or formally annul the Declaration of Independence, 442; the Canadian French, 443; why are they to be despised? 443; it has been denied that British influence had any agency in the massacre on the Wabash, 443; our identity with the people and institutions of Great Britain, 444; the ties of religion, language, blood, as it regards Great Britain, are dangerous ties to this country, with her present hostile disposition, 444; the military regular forces have been called mercenaries, 445; it is a question of war or submission, 445; it is contended that it is a dispute about the carrying trade, 445; the carrying trade is as much the right of the American people as the carrying the products of their own soil, and is secured by the British treaty, 446; the massacre on the Wabash, 446; the principles that ought to govern civilized nations, have at all times been disregarded by the officers and agents of the British Government, 446; mercenary objects should not be ascribed to gentlemen, as motives for the war, 446; the report means nothing but war or empty menace, 447; the gentleman from Virginia is in error, through inadvertency, or mistake, 447; a menacing system has nothing to commend it, 447; menaces should be resorted to with as much caution and seriousness as war itself, and should, if not successful, be invariably followed by it, 448; an additional force is a measure evidently improper, but as a preparation for war; but undoubtedly necessary in that event, 448; this country should never resort to war but for causes the most urgent and necessary, 448; if the war ensues it can be proved justifiable and necessary by facts undoubted, and universally admitted, 448; the question, in the opinion of opponents, is reduced to this single point--which shall we do, abandon or defend our own commercial rights? 448; gentlemen will not say, we have not a good cause for war, but insist that it is our duty to define it, 448; what do they mean by this? 448; the objections urged, consist of an enumeration of the evils incident to war, however just and necessary; if they have any force, it is calculated to produce unqualified submission to every species of insult, 448; it is said the country is in an unprepared state, 449; whose is the fault? 449; it is said the nation will not pay taxes, for the defence will cost more than the profit, 449; the dangers of war are next held up, 449; no disposition manifested on the part of Great Britain to relax her oppression or to make restitution for damages, but, on the contrary, a disposition to persist in her lawless aggressions, 450; remonstrances against atrocities have been made, in vain, 451; we have been plundered, oppressed, and insulted, but the day of retribution is at hand, 451; if the British Government would cease to violate our neutral and national rights, our difficulties would be at an end, 451; we must prepare to maintain the right to carry our produce to what market we please, or to be content without a market, 452; no objection to declare the points for which we go to war, 452; the previous question should not be used, to put an end to this debate, 452; further debate, 453; the resolutions considered as a measure of hostility, according to the views of their advocates and as a measure of defensive preparations, agreeable to the spirit of the Executive recommendation, 453; the invasion of Canada to be deprecated as an act of foreign conquest, 454; war to be feared from a manly dread of its consequences, 454; retrospect of our relations with Britain since nearly the commencement of the present Government of the United States, 455; this view shows the expediency of increasing our regular force, 455; by the adoption of this report, we are entering on a system of operations of the utmost national moment, 455; some regret that vigorous measures had not been adopted long since, 456; why should the wise policy of the past be condemned? 457; reasons for opposing the measure, 457; this is to be a foreign offensive war, as regards Canada, 458; all the belligerents had deserved war at our hands, 458; but the policy of the Republicans had been to cherish peace, and to avoid war, even to this time, 458; in 1778-'9, the best interests of the country forbade war, and so the people determined, 458; professions of peace brought in the Republican party to power, 458; if there were any differences between the causes of the war then, and now, it was in favor of the former period, 458; what were the facts? 458; it is said to be a principle of honor to resist a first insult, 458; impossible to perceive how the present, of all others, had become the necessary and accepted time for war, 458; if the country ever determines on war, any force should be voted, 459; reasons for voting for the measure, 459; the right of carrying our own produce, in our own ships, to any quarter, should never be yielded, 460; it is said, the war will be one of aggrandizement, of conquest, 460; if we force England to a treaty, how long will she keep it? 461; new men and new doctrines have succeeded to the old Republican party, 462; the nation has been brought to its present alarming and unprecedented situation, by means in nowise unaccountable, 462; by steps as direct and successive as the pictures of the "Rake's Progress," 462; America ought to be proud of her Anglo-Saxon origin, 462; it has been asked, why was the country unprepared for defence? 463; this is not to be a party war, it is said, 463; "Goose Creek," 464; _note_, 464; second resolution carried, 464; third resolution carried, 465; fourth and fifth resolutions carried, 465; sixth resolution laid on the table, 465; taken up, 466; what reasons are there to induce us to authorize our merchant vessels to arm against unlawful molestation on the high seas, 467; what is the object of this measure? 467; resolution concurred in, 468; report on, 554. FOSTER, AUGUSTUS J., as British minister disclaims any knowledge of John Henry, 522. _France, relations with_, during John Adams' administration, _see Index_, vol. 2. _Franking Privilege._--_See Index_, vols. 1, 2, _Post Office_. FRANKLIN, JESSE, Senator from North Carolina, 3, 116, 176, 252, 400, 566. _See Index_, vols. 1, 2, 3. FRANKLIN, MESHACK, Representative from North Carolina, 125, 188, 316, 425, 577. _See Index_, vol. 3. _Freedom of Conscience._--_See Index_, vol. 1. _French Refugees._--_See Index_, vol. 1. _French Spoliations_, statement and representation of Capt. Samuel Chew, 526; laid on the table, 527. _See Index_, vol. 2. _Frontiers, Protection of._--_See Index_, vol. 1. _Fugitives from Justice._--_See Index_, vol. 1. FULTON, ROBERT, letter relative to torpedoes, 213; referred, 214. G GAILLARD, JOHN, Senator from South Carolina, 3, 116, 166, 250, 400, 566; appointed President _pro tem._ of Senate, 179; elected, 184. _See Index_, vol. 3. GALLATIN, ALBERT, reports relative to barred claims, 185; letter as Secretary of the Treasury, 188; Secretary of the Treasury, letter of, relative to suspension of non-importation, 714. _See Index_, vols. 1, 2. GANNETT, BARZILLAI, Representative from Massachusetts, 124, 187, 319. GARDENIER, BARENT, Representative from New York, 48, 124, 191, 350; on submission to the late edicts of England and France, 87; on remunerating those who resisted the law for a direct tax, 137; on prosecutions for libel, 139; on the call on the President for papers, 192; supports petition of Elizabeth Hamilton, 215. _See Index_, vol. 3. GARDNER, FRANCIS, Representative from New Hampshire, 36. _See Index_, vol. 3. GARDNER, GIDEON, Representative from Massachusetts, 124, 188, 316. GARLAND, DAVID S., Representative from Virginia, 212, 315. GARNETT, JAMES M., Representative from Virginia, 36. _See Index_, vol. 3. _General Officers, additional_, bill relative to, considered, 712. _Georgia_, vote for President in 1808, 27; in 1812, 573, 711. _Georgia Land Claim._--_See Index_, vol. 3. GERMAN, OBADIAH, Senator from New York, 116, 166, 250, 400, 566; on the declaration of war, 416. _German Language_, laws in, _see Index_, vol. 2. GERRY, ELBRIDGE, elected Vice President, 574. _See Index_ vols. 1, 2. GHOLSON, THOMAS, Jr., Representative from Virginia, 36, 125, 187, 315, 426, 577; on foreign relations, 53; on the Batture at New Orleans, 151; on the conduct of the British minister, 193; supports petition of Elizabeth Hamilton, 215; reports on the petition of Amy Dardin, 216; on the admission of the territory of Orleans as a State, 324; in favor of the admission of Mississippi, 352; on the statutes of limitations, 475; on the British intrigues, 516. GILES, WILLIAM B., Senator from Virginia, 3, 116, 166, 250, 400; on the repeal of the Embargo Act, 18; reports a bill for the enforcement of the embargo laws, 21; on the bill for the enforcement of the embargo, 23; offers an amendment to extend non-intercourse to all foreign nations, 118; reports a bill to prevent abuse of privileges by foreign ministers, 169; on the conduct of the British minister, 169; on incorporating a bank of the United States, 275; on an additional military force, 405. _See Index_, vols. 1, 2, 3. GILMAN, NICHOLAS, Senator from New Hampshire, 3, 116, 166, 250, 400, 566; reports the bill engrossed in favor of an additional military force, 403. _See Index_, vols. 1, 2, 3. GOLD, THOMAS R., Representative from New York, 124, 187, 315, 424, 577; on the Batture at New Orleans, 151; supports petition of Elizabeth Hamilton, 215; favors postponement of the resolution relative to the apportionment of representation, 224; on the ratio of representation, 317; on commercial intercourse with France and Great Britain, 388; on rules and orders of the House, 468; on making provision for a corps of engineers, 531; on pay of the army, 584; in favor of a naval establishment, 601; on an additional military force, 615. GOLDSBOROUGH, CHARLES, Representative from Maryland, 36, 124, 187, 315, 577; on the ratio of representation, 319. _See Index_, vol. 3. GOODRICH, CHAUNCEY, Senator from Connecticut, 3, 116, 166, 250, 400, 566; on the bill for the enforcement of the embargo, 21. _See Index_, vols. 1, 2, 3. GOODWYN, PETERSON, Representative from Virginia, 36, 125, 187, 315, 424, 577. _See Index_, vol. 3. _Goose Creek_, _note_, 464. GRAY, EDWIN, Representative from Virginia, 36, 125, 188, 316, 432, 594. _See Index_, vol. 3. GREEN, ISAIAH L., Representative from Massachusetts, 36, 424, 577. _See Index_, vol. 3. GREGG, ANDREW, Senator from Pennsylvania, 5, 116, 166, 264, 400, 510; elected President _pro tem._, _see Index_, vols. 1, 2, 3. GRISWOLD, STANLEY, Senator from Ohio, 121, 166. GROSVENOR, THOMAS P., Representative from New York, 706. GRUNDY, FELIX, Representative from Tennessee, 425, 577; on domestic manufactures, 428; on Indian affairs, 428; on foreign relations, 434; on the British intrigues, 519; on the recall of absentees, 533; on the bill laying an embargo, 544; presents a bill to raise an additional military force, 547; on the objects of the war, 641; on war taxes, 715; on an extra session, 717. _Gunboats._--_See Index_, vol. 2. H _Habeas Corpus_, suspension of, &c., _see Index_, vol. 3. HALE, WILLIAM, Representative from New Hampshire, 124, 187, 319. HALL, BOLLING, Representative from Georgia, 425, 577. HALL, OBED, Representative from New Hampshire, 424, 577. _Hall of the House of Representatives_, how it may be used, 214. HAMILTON, PAUL, Secretary of the Navy, letter to Lieut. Elliot, 573. _Hamilton, Mrs., claim of_, in the House, report on the petition of Elizabeth Hamilton, 212; report favors the claims of the petitioner on grounds of equity, but declares they are barred by the statute of limitations and ought not to be granted, 215; the late Gen. Hamilton had no claim on the Government under the resolution of the old Congress, 215; no claim, notwithstanding the statute, 215; hundreds of cases equally hard, 215; the impoverished old soldiers should be relieved before claims of this kind are granted, 215; if the statute was unjust it should be repealed; if not, exceptions should not be made but with extreme care, 215; Gen. Hamilton in service until the close of the war, 215; did not resign his commission by accepting a seat in Congress, 215; Congress had relieved the daughters of Count de Grasse, 215; the statute of limitations was never intended to bar just claims, 215; bill ordered to be reported, 217; bill reported and amendments proposed, 218; passage of the bill, 218. HARPER, JOHN A., Representative from New Hampshire, 424, 577. HARRIS, JOHN, Representative from New York, 36. _See Index_, vol. 3. HAVEN, NATHANIEL A., Representative from New Hampshire, 124, 187, 320. HAWES, AYLETT, Representative from Virginia, 424, 577. _Hazen, Charlotte_, petition of, 266. HEISTER, DANIEL, Representative from Pennsylvania, 126, 187, 315. _See Index_, vols. 2, 3. HEISTER, JOHN, Representative from Pennsylvania, 36. HELMS, WILLIAM, Representative from New Jersey, 36, 124, 187, 316; against petition of Elizabeth Hamilton, 215. _See Index_, vols. 1, 2, 3. HEMPSTEAD, EDWARD, Delegate from Missouri Territory, 620; on Mississippi land claims, 702. HENRY, JOHN, letters of, 506, 508, 509, 510, 511, 512, 513, 514; memorial to Lord Liverpool, 514. HICKMAN, HARRIS H., letter to Lieutenant Elliot, 573. HILLHOUSE, JAMES, Senator from Connecticut, 3, 116, 166; offers resolution to repeal the embargo act, 5; on the repeal of the embargo act, 5; resigns his seat in the Senate, 250. _See Index_, vols. 1, 2, 3. HOGE, WILLIAM, Representative from Pennsylvania, 36. _See Index_, vols. 2, 3. HOLLAND, JAMES, Representative from North Carolina, 37, 125, 203, 315; on the immediate arming of the public vessels, 98; on non-intercourse with Great Britain and France, 157; in favor of the admission of Mississippi, 352. _See Index_, vols. 2, 3. HOLMES, DAVID, Representative from Virginia, 36. _See Index_, vols. 2, 3. _Home Manufactures in the House._--_See Index_, vol 3. HORSEY, OUTERBRIDGE, Senator from Delaware, 250, 400, 566; on the occupation of Florida, 255. _House._--Meeting of 2d session of 10th Congress, 36; assembles on 1st session, 11th Congress, 124; adjournment of 1st session of 11th Congress, 165; adjourns at close of 2d session of 11th Congress, 249; meeting at 3d session of 11th Congress, 315; meets at 1st session of 12th Congress, 424; adjourns at close of 1st session of 12th Congress, 544; meets at 2d session of 12th Congress, 577; adjourns 3d session of 12th Congress, 720. HOWARD, BENJAMIN, Representative from Kentucky, 36, 125, 187; presents the petition of naturalized British subjects, 46; his proclamation as Governor of the Missouri Territory, 707. _See Index_, vol. 3. HOWELL, JEREMIAH B., Senator from Rhode Island, 400, 566. HOWLAND, BENJAMIN, Senator from Rhode Island, 3. _See Index_, vol. 3. HUBBARD, JONATHAN H., Representative from Vermont, 124, 187, 316. HUFTY, JACOB, Representative from New Jersey, 124, 187, 315, 424, 577. HUMPHREYS, REUBEN, Representative from New York, 36. HUNGERFORD, JOHN P., Representative from Virginia, 424; declared not entitled to a seat, 432. HUNTINGTON, EBENEZER, Representative from Connecticut, 315. HUNTER, WILLIAM, Senator from Rhode Island, 400, 570. HYNEMAN, JOHN M., Representative from Pennsylvania, 424, 577. I ILSLEY DANIEL, Representative from Massachusetts, 36. _Impeachment._--_See Index_, vol. 3. _Importation of Slaves._--_See Index_, vol. 3. _Imports._--_See Duties on Imports._ _Imprisonment for Debt._--_See Index_, vol. 2. _Inaugural Address_ of James Madison, on commencing his second term as President, 575. _Indemnity for Spoliations._ _See Index_, vol. 1., _Great Britain_. _Indiana Territory._--Committee appointed to consider the expediency of dividing, 87; report of committee relative to a division of, 96. _Indian Affairs._--In the House, a resolution offered to extend the laws of the United States over all white persons residing on Indian lands within the United States in which the title is not extinguished, 428; Indian countries have become an asylum for persons guilty of every enormity, 428; do not the laws of the United States at present extend to cases of this kind, 428; a recent case in Georgia, 428; some defects in the present law by which petty officers escape, 428; laid on the table, 428. _Indian lands within a State, rights over._--_See Index_, vol. 1. _Indian Trading Houses._--_See Index_, vol. 1. INGERSOLL, JARED, voted for as Vice President in 1812, 574. _Inoculation of the Army_, petition relative to, 709. _Intercourse, Commercial._--In the House, bill from the Committee of Foreign Relations considered, 352; the bill, 353; exempts all vessels, owned wholly or in part by American citizens, and merchandise, from seizure or forfeiture, which have left British ports prior to February 2d, 1811, 353; moved to amend so as to exempt all vessels and merchandise, 353; the amendment will at once give a clear deck, 353; the law of May last, authorized the President to proclaim the fact, if either France or Great Britain revoked her edicts, and non-intercourse should ensue with the other, 353; France revoked her edicts; Britain did not, and non-intercourse is in force with her, 353; this fact doubted, and should be inquired into, 353; the bills to lay additional duties, and to authorize a loan, furnish additional reasons for this bill, 353; if the non-intercourse has not gone into effect, new taxes and loans are not needed, 353; proceedings of the Executive relative to Great Britain, 353; the President has acted differently under two laws, which ought to have the same practical construction, 354; is it said, the President had no knowledge of the blockading orders of May, or that it was avowed to be comprehended in the Orders in Council? 354; as to France, what are the edicts revoked, and how? 354; the Rambouillet decree, 354; it purports to be an act of reprisal on this country, 354; what ought to have been the feelings of the Administration and of the country, in relation to this measure? 355; this is taking property under false pretences, in its nature, 355; another view of this decree, 355; another mistake of this Government, 355; the practical operation of our law, 355; apologists of the Emperor point to the act of 1st June, 355; object in view in this examination of the decree of Rambouillet, 356; threats and insults of the French Emperor, 356; have these decrees been so revoked or modified as to cease to violate the neutral commerce of the United States? 356; these decrees have two distinct operations, 356; the seizure of our property, and its sale, 356; if there has been any modification, it only prevents future seizures, leaving the property already seized to take the course of confiscation and sale, 356; has there been such a revocation of the Berlin and Milan decrees, as warranted the proclamation? 357; it was not credited that it could be issued on the letter of the Duke of Cadore, 357; what is the understanding of the French courts and officers on the subject? 357; the revocation, if any, was a future one, 357; it was also conditional, 357; puzzling to determine whether it was a condition precedent or subsequent, 358; the conditions on the part of England, 358; conditions on the part of France, 358; conditions on the part of this country, 358; the right of not being vexed or endangered by paper blockades, respected, 358; the flag is to protect the property, and search is not to be permitted, 359; how are we to cause those rights to be respected? 359; are we prepared for those conditions? 359; it may be said, that the letter of the Duke of Cadore, if not itself a decree, is evidence of a rescinding decree, 359; the letter of Mr. Russell, 359; moved to strike out the whole of the bill, 360; it is a new duty for Representatives to present under a suspicious aspect, either the motives or the acts of the Executive branch of their Government, 360; in no nation, ancient or modern, was such a thing seen, unless in the last stages of corruption, 360; the whole fact should have been stated in regard to the letter of the Duc de Cadore, and the answer of General Armstrong, 360; why is the President's proclamation disapproved? 360; the letter of Mr. Erskine was not a repeal of the British orders, 360; no difference in the ground taken by the Executive, except that one arrangement was with Great Britain, and the other with France, 360; shown from the correspondence, that the President did not, under the act of the last session, require the revocation by Great Britain, of any blockade, except that of May, 1806; and that blockade must have been included in the demand under the act of last session, 361; extract from the Message of the President, 361; declaration of our Secretary to General Armstrong, 361; declaration of General Armstrong and the Duc de Cadore, 361; statement of Lord Wellesley, 361; do. 361; thus the demand was confined to the blockade of 1806, 362; was this blockade such a violation of the neutral rights of the United States, as to come decidedly within the act of last session? 362; this blockade presents three distinct characters, 362; 1st. It obstructs a trade from one port to another, of the same enemy; 2d. It obstructs trade from the port of one enemy to the port of another; 3d. It obstructs trade of neutrals from their own country to any part of the coast from the Elbe to Brest, 362; it is in violation of the principles contended for by every Administration under the American Government, 362; letters of Mr. King and Mr. Marshall, 362; some observations on the bill before the House, 363; the construction put on the non-intercourse law is perfectly within its object, 363; further explanation of the law, 363; views of the committee, 363; unwillingness to imply by any vote, a recognition of the efficacy of the non-intercourse law, which could not have an operative force until May, is a motive to sustain the amendment, 364; truth of the position as to the operation of the law, demonstrable, 364; not answer to argue from the intention of the legislature, 364; the words of the act are explicit, and the meaning plain, 364; pledge contained in the act relative to commercial intercourse between the United States and Great Britain and France, 364; explanation of this pledge, 364; the same proposition was presented to both the latter nations, 365; if either would revoke its edicts, no goods or wares of the other, should, three months thereafter, be imported into the United States, 365; France did so revoke her edicts, 365; this amendment proposes to repeal the non-intercourse act, excluding the merchandise of Great Britain, although France has so repealed her edicts, and Great Britain has not, 365; this is a direct breach of faith, 365; the excuse is, that the President had no right to issue his proclamation, and that the assurances of France were deceptive, 365; the President is expressly instructed by the non-intercourse act to make the proclamation, 365; as well might the legitimacy of a treaty be questioned after it had been ratified, 365; how could the President act a different part upon the evidence in the case? 365; if this diplomatic evidence is not to be received, an end is put to all diplomatic intercourse, 365; if Great Britain had made the like communication, and the President had taken the like course, what would have been said by these gentlemen? 365; they approve the proclamation in the case of Great Britain, but denounce a similar proposition in the case of France, 366; it is said, the non-intercourse act is not in force; whence do gentlemen derive the power to declare an act of Congress not in force? 366; the revoked decrees of France are considered by some as more obnoxious than the British Orders in Council, 366; who can be an apologist of France or England, when each has charged the other with the first aggressions on our commerce? 366; while Great Britain finds some able advocates in this House, she will find no necessity to redress our wrongs, 366. In viewing the course which has been adopted this session, it is surprising that the present measure should be called up for adoption, 367; it is now evident that the President was duped by the French Emperor, and led to issue his proclamation, 367; what has occurred to alter the face of affairs, to induce this new attempt to fasten on the restrictive system against our intercourse with Great Britain? 367; the last communication from the President furnishes the most conclusive evidence of the treachery of Bonaparte, 367; how has the President's proclamation been verified? 368; the remonstrance of Mr. Russell remains unanswered, and the New Orleans packet remains under seizure to this day, 368; after thirteen days a partial suspension of the decrees was ordered, 368; a suspension not as to sequestration, but as to condemnation, 368; with this statement before their eyes, will gentlemen assert that the decrees were revoked? 368; are we bound by any faithful performance had on the part of France? 368; have either France or Great Britain complied with the condition? 369; must this sacrifice be made in order to bolster up the President's proclamation so prematurely issued? 369; is this an honest neutrality to revive the restrictive system against Great Britain, while the French decrees are still in force? 369; the present measure is intended as a propitiatory sacrifice to conciliate Napoleon, 369; is it calculated to produce this effect? 369; a view of the course which has been pursued can answer, 369; the amendments contemplate the continuance and enforcement of the non-intercourse law, 370; after long delay the Administration has condescended to develop their policy, 370; the proposition contained in these amendments has relation to the most momentous and most elevated of our legislative obligations, 371; the nature and effects of this commercial restrictive system are no longer matter of speculation, 371; only a word on its nature necessary, 371; the system contained in the law of May, 1810, and March, 1809, is injurious, is not fiscal in its nature, nor protective of manufactures, nor competent to coerce either belligerent, 371; who was ever the friend of non-intercourse? 371; it was agreed upon because the majority could agree upon nothing else, 372; the system should therefore be abandoned, 372; its advocates say we cannot abandon it, for our faith is plighted, 372; is any such faith plighted? if so, whence did it arise? 372; under the act of May, 1810, 372; what is its character and the obligations arising under it? 372; the obligations arise under a certain section, 373; divested of technical expression, it provides that a new commercial condition shall result on the occurrence of a certain fact, which fact the President shall declare, 373; the terms our act proposed was the modification or revocation of certain edicts; the effect to be produced was that this revocation or modification should be such as that these edicts should "cease to violate our neutral commerce," 373; has the act been done, and in such a manner as to amount to an honorable fulfilment or acceptance of our terms? 373; the occurrence of the fact of revocation involves the propriety of the proclamation, 373; has the fact occurred? 373; this point examined with regard to France, 374; letter of the Duc de Cadore examined, 374; point of honor to be saved to France, 376; how was Great Britain to accede to the terms? 376; the declaration on the part of France further examined, 376; the fact must be done and the effect produced, but the terms of that act must be excepted, 376; the proffer we made was only to revive the non-intercourse law against the contumacious belligerent, after three months from the date of the proclamation, 376; what the French mean, 376; our efficient concurrence in Bonaparte's plan of policy, 376; is it possible to point out any variation in the policy of France to this country before and since this letter? 377; the true nature of this Cadore policy is to be discovered in the character of Bonaparte, 377; it is impossible to reason with those who deny that the decrees now exist, 377; the act now proposed is required by no obligation, 377; the present is the most favorable moment for the abandonment of these restrictions, 377; the edicts of the President are far more detestable to the merchants than those of France or George III., 377; it is time to take our own rights into our own keeping, 378; why not give the same credence to the letters of the Duke of Massa and the Duc de Gaete, as would be given to a letter from the Chancellor of the Exchequer in Great Britain? 378; about to shut up the only avenue to our commercial hope, it is said, 378; this point examined, 378; extracts of letters from Liverpool, 378; one gentleman willing to surrender the carrying trade to Great Britain, 378; three classes of your citizens to be provided for as contemplated in the provisions of this bill, 379; first, sequestrations in France, Spain, Italy, &c.; second, those who have sailed to France under the faith of the Duke of Cadore's letter; third, importers of British manufactures, 379; it is to be hoped the time is not far distant when we shall assert and defend our rights, 379; are we prepared, after having been insulted, robbed and deceived by the French Emperor, to follow the example of petty servile states, and throw this people into the embraces of that monster? 379; principal object of the amendment to renew the non-intercourse of 1809, so far as respects Great Britain, 379; the amendment to suspend the whole restrictive system should be adopted, 379; this amendment changes the position recommended by the Executive, but not much more than the bill with the amendment under consideration, 379; this bill would have been scouted as the production of a madman previous to the reign of Bonaparte, 380; we have conclusive evidence that the edicts are not so revoked that their operation ceased on that day, 380; how are we to cause our rights to be respected? 380; further debate respecting the operation of the decrees, 381; examination of the non-intercourse system from the date of the law of March, 1809, to inquire what its professed object is, 381; it is thus demonstrated that if we suffer this system to go into operation, we are not only again to reduce our citizens to a state of bankruptcy in their private fortunes, but our Treasury is likewise to be more completely bankrupt, 382; what has been the further effect of this law? 382; history of its results, 383; further remarks, 383; correspondence examined, 384; will the servile manner in which the rescinding the blockade is coupled as a condition with the withdrawing the Orders in Council, escape notice? 385; what American can read this correspondence without laying his hand upon his heart and exclaiming O, my Government, my Government, now is the gold become dim, &c., 385; after seeing how the law of May, 1810, has been used with the French Government, until it had assumed the character of a threat, together with the various changes of position taken by our Government, it demonstrates a management which will not leave much doubt whether it be indispensable to suffer this law to go into effect as a measure of resistance against England, or good faith to France, 385; the proclamation was issued when there was no official information of the repeal of the decrees, 385; the faith of the nation is not pledged by the law of 1810, 386; it may even be admitted that this law has all the binding force of treaties, 387; before France can claim a fulfilment of any such promise, she should not only revoke her injurious acts, but it should be done fairly and honestly, and without at the same time adopting other measures equally injurious, 387; is this that fair and honest repeal of the Berlin and Milan decrees? is this that _bona fide_ performance of the condition? 387; it is an attempt to gull and deceive us by an artful, intriguing policy, 387; this is the favorite moment to erase the restrictive system from your statute books, 387; the consequences of its continuance examined, 387; it becomes this Government, in all our concerns with the belligerents of Europe, to manifest to both a fair, impartial and equal conduct, 388; has such a spirit characterized the proceedings of our Government? 388; has a similar temper and disposition been shown to Great Britain as to France, in the interpretation of the Cadore letter? 388; this part of the case will not well bear scrutiny, 389; the bill on the table is calculated much more to put in jeopardy the neutral character of our Government, 389; the principle of the act of May was just and equal, 389; the most copious source of error is found in the extent of the Berlin and Milan decrees, 389; had France proved faithful to her engagements, the United States would at this moment have had a prosperous commerce with Europe, 390; why shall we at this moment make this marked distinction between France and England? 390; the great question is, does the fact upon which the proclamation was alone to issue, and on which its legitimacy solely depends, exist, or does it not exist? 391; the very doubt ought to decide the question, 391; such is the case that we are enabled to prove a negative, 391; the letter of the Duc de Cadore examined, 391; the case further examined, 392; the purity of the source whence our arguments come has been questioned, 393; the order of May, 1806, has scarcely a single feature of a regular blockade, 394; notice of the arrangement with Mr. Erskine, 395; if the Berlin and Milan decrees had been actually repealed, what would we have gained? 395; there can be no importation of American productions into France, but on terms utterly inadmissible, 395; it is vain to seek for the justification of this measure from any thing France has done, 396; the disposition of Bonaparte towards us rests not alone on his acts of aggression, rapine and plunder, 396; motion to postpone lost, 397; it was contended that the Emperor of France had not fulfilled his engagement, 397; amendment offered, 397; lost, 397; further debate, 397; previous question moved, 397; carried, 397; adjournment moved, 397; lost, 397; bill passed, 398; the bill, 398. _Intercourse Foreign._--Message from the President relative to the execution of the act of 1806, appropriating two million dollars for defraying any extraordinary expenses attending our foreign intercourse, 26. _Intercourse Non._--In Senate, bill to interdict commercial intercourse, &c., read the third time, 28; the effect of the measure must be war with Great Britain, it is stated, 28; what excuse is there for leaving the country in such a defenceless state? 28; what are our preparations? 28; what is the state of the treasury? 28; what plans are offered for replenishing it? 29; if we are to have war, with whom is it to be prosecuted? 29; under these circumstances what is the course that policy would dictate to this country to pursue? 29; consequences of non-intercourse under such circumstances, 30; who has been the first aggressor? 30; bill passed, 31. _In the House._--Resolution previously referred, 106; nature of the bill reported, 106; whole subject of embargo and non-intercourse should be incorporated in one bill, 106; referred to committee on foreign relations, with instructions to bring in a bill, 107; the whole to present a general system, 107. Bill for interdicting commercial intercourse between the United States and Great Britain considered, 107; moved to strike out the first section in order to try the principle of the bill, 107; impossibility of carrying the system into effect, 107; rather than accept this system it would be better to remain under the embargo, 107; the idea of the efficacy of this system examined, 107; for the future the remedy is--to follow nature, 108; she dictates the removal of all obstructions, 108; the removal of the embargo would give an opportunity for negotiations, 108; also show the effect of the orders and decrees, if these were not injurious no further steps would be necessary, 108; legal opposition to the embargo laws in Massachusetts, 108; when did the violation of our rights commence? 108; so long ago no time could be fixed, 108; the hot-bed politicians stirred up the people of New England, 108; if we cannot get war, or a continuance of the embargo, non-intercourse should be carried into effect, 108; England will treat before going to war, 109; when the embargo shall cease, war will be the only honorable course, if reparation is not made, 109; the embargo as a precautionary and coercive measure, 110; when the injuries were committed resistance or submission was our only course, 110; time to change our measures and place our future reliance in Providence and the energies and valor of the citizens, 110; this bill is conducive to the interests of the country, 110; it maintains our attitude and continues our solemn protest, 110; it reserves the great question to be decided at the next Congress, 110; objections to the bill considered, 111; question on striking out first section lost, 111; the embargo should be adhered to, until a majority of the people prefer war, 112; there is no middle course, 112; the great object of the United States in her foreign relations is to maintain honorable peace, 112; reason for resorting to the embargo, 112; objects for which it has been pursued, 112; why should they now be abandoned? 112; now is the most critical period for the effect of the embargo, 112; views of Great Britain, 113; what will be the inference drawn from adopting this measure? 113; firmness peculiarly requisite at this time, 113; motion to strike out lost, 114. _In the Senate._--Amendment to the act offered, purporting to extend it to all public armed vessels until modified by treaty, 118; a necessity to consider the subject arises from the limitation of certain sections of the act, 119; this extension should have been made at the last session, 119; it is merely a municipal proposition, 119; overtures of the British cabinet, 119; motive of resisting the aggression of France, 119; reasons why modifications should be made by treaty, 119; Great Britain cannot complain, 119; extract from Canning's speech, 120; two conclusions deduced, 120; the principle contended for not new, 120; report on the amendment, 122. _In the House._--Resolution to suspend the non-intercourse act offered, 127; bill from the Senate to revive and amend certain parts of the act relative to non-intercourse considered, 152; what led to the exclusion of British vessels? the attack on the Chesapeake, 152; shall the measure of hostility be continued after the cause has been done away, 152; the interdiction of the act was founded on the violation of our rights by the belligerents, 153; the hostility ceased when the act was passed, 153; it was not the act, 153; upon the passage of this bill may depend the destinies of this country, 153; the question is what regulation shall be made respecting public ships, 154; shall we exclude both--admit both, or discriminate? 154; England has made reparation, 154; the ground we have taken in respect to France and England reviewed, 154; the system proposed is one of impartiality to the belligerent powers of Europe, 155; why were French armed ships excluded? 155; it was considered a measure favoring Great Britain, 155; do away every possible justification that can be urged by France for not meeting our overtures for peace, 155; if you wish to gain the advantage of union at home, take away every pretext for the violation of your rights, 155; did not this bill place the two belligerents on equal footing? 156; state of the continent, 156; it is said, we should not discriminate, for France has no public armed vessels, 156; it is not consistent with our honor and dignity to admit French ships within our waters, 157; if we are at peace with Great Britain are they entitled to all the rights of hospitality one nation can show to another? 157; this bill is a concession to Great Britain and is not a hostility to France, 157; what injuries has France done? 157; if you discriminate under the same circumstances you jeopardize the peace of the country, 157; what has Britain done which would require a discrimination as to her public vessels? 158; the bill should be passed in its present form, any material alteration will cause it to be lost, and thus will end all that has taken place between this country and Great Britain, 158; purport of the amendment proposed, 158; admission of English and exclusion of French ships, 159; cause of the interdict of British vessels, 159; there has been no satisfactory adjustment of our difficulties with Great Britain, 159; proceedings adopted to obtain a direct question on the first amendment, 159; a precedent furnished, 159; moved to exclude both French and English vessels, 159; lost, 159; amendment moved that penalties and forfeitures incurred should be recoverable after the act had expired, 160. A discrimination should be made, for one nation has complied with the conditions of the non-intercourse act, whilst the other has not changed her position, 160; the armed vessels of either should not be admitted, 160; should so act that neither of the belligerents could charge us with partiality, 160; desirable that nothing should be done to embarrass negotiations, 160; this bill has passed the Senate unanimously, 161; this bill does not conform to any system of policy, 161; it is said this bill is considered as comporting with the views of the Executive, 161; nothing due for any boon Great Britain has given us, 162; what is the declaration of the British minister? 162; difficult to say what other system would be proper, 162; bill passed, 163. _In the Senate._--Have been for years contending against the tyranny of the ocean, and pledged ourselves to the world not to surrender our rights, 177; war preferable to ignominious peace, 177; what are the means for carrying on war? 177; it is said, no object is attainable by war with Great Britain, 177; it will deprive her of those supplies of raw materials obtained from this country, 178; it will reproduce and cherish a commercial spirit in us, 178; this bill is a total dereliction of all opposition to the edicts of the belligerents, 178; motion to recommit the bill lost, 178. Question, shall the Senate adhere to their amendments? 179; the interests of the country require that the subject shall be finally acted upon, 179; committee of conference appointed, 179; report and the question to adhere, 180; review of the causes that led to the measures of this government, 180, 181; it is better for Congress to rise and do nothing than to do that which will only injure ourselves, 182; Senate vote to adhere, 182. J JACKSON, F. J., his circular to British Consuls, 193. JACKSON, JOHN G., Representative from Virginia, 36, 125, 187; in favor of immediate arming of the public vessels, 101; on an extra session of Congress, 102; on resolution relative to election of presidential electors in Massachusetts, 105; moves to postpone the consideration of a vote of approbation of the conduct of the Executive, 129; on non-intercourse with Great Britain and France, 158. _See Index_, vols. 1, 2, 3. JACKSON, RICHARD S., Representative from Rhode Island, 37, 124, 187, 316, 424, 577; on submission to the late edicts of England and France, 84. _Jails of States._--_See Index_, vol. 1. JEFFERSON, THOMAS, message as President at a 2d session of 10th Congress, 3; franking privilege conferred on, 28; calls extra session of the Senate, 33; results of his administration, _note_, 114; franking privilege granted to, 122. _See Index_, vols. 1, 2, 3. JENKINS, ROBERT, Representative from Pennsylvania, 37, 124, 205, 315. _See Index_, vol. 3. JENNINGS, JONATHAN, Delegate from Indiana Territory, 187, 315, 425, 577; on raising mounted rangers, 650. JOHNSON, RICHARD M., Representative from Kentucky, 36, 125, 187, 315, 428, 577; on foreign relations, 50; on non-intercourse with Great Britain and France, 157; supports petition of Elizabeth Hamilton, 215; in favor of the admission of Mississippi, 352; on foreign relations, 442; against a naval establishment, 486; on the limits of Louisiana as a State, 523; offers a resolution to raise mounted volunteers, 580. _See Index_, vol. 3. JONES, JACOB, his letter to the Secretary of the Navy, 598. JONES, WALTER, Representative from Virginia, 37, 125, 188, 319. _See Index_, vols. 2, 3. _Judiciary System_, bill to amend, read twice, 84, 87. _See Index_, vol. 2. _Judges, Federal_, removal of, in the House, constitution not perfect, and provision made for amendment, 351; the amendment is to place the judiciary on the same foundation as the British judiciary, 351; resolutions offered, 352; House refused to consider, 352. _See Index_, vol. 3. K KELLY, JAMES, Representative from Pennsylvania, 37. KENAN, THOMAS, Representative from North Carolina, 37, 125, 188, 315. _See Index_, vol. 2. KENNEDY, WILLIAM, Representative from North Carolina, 125, 187, 316, 709. _See Index_, vol. 2. KENT, JOSEPH, Representative from Maryland, 424, 577; on an additional military force, 679. _Kentucky._--Vote for President in 1808, 27; in 1812, 573, 711. KEY, PHILIP B., Representative from Maryland, 37, 124, 191, 315, 426, 577; on submission to the late edicts of England and France, 63; on an inquiry relative to prosecutions under the sedition law, 139; supports petition of Elizabeth Hamilton, 215; on reduction of the navy, 227; on the British intrigues, 518. _See Index_, vols. 1, 3. KING, RUFUS, number of votes for, as Vice President, 27; letter to Lord Grenville, 362. _See Index_, vol. 1. KING, WILLIAM R., Representative from North Carolina, 425, 577; on laying additional duties, 431; on foreign relations, 459. KIRKPATRICK, WILLIAM, Representative from New York, 36. _See Index_, vol. 3. KITCHEL, AARON, Senator from N.J., 3. _See Index_, vols. 1, 2, 3. KNICKERBOCKER, HERMAN, Representative from New York, 124, 192, 316. L LACOCK, ABNER, Representative from Pennsylvania, 425, 577; on the naturalization laws, 543, 715. LAMBERT, JOHN, Senator from New Jersey, 33, 116, 166, 250, 400, 566. _See Index_, vol. 3. _Land office_, bill to establish, read second time in the Senate, 405. _Lands, Western_, _see Index_, vols. 1, 3, _Public lands_. LANGDON, JOHN, number of votes for, as Vice President, 27. LAW, LYMAN, Representative from Connecticut, 424, 577; in favor of a naval establishment, 492; on an additional military force, 627. LEFEVRE, JOSEPH, Representative from Pennsylvania, 424. LEIB, MICHAEL, Senator from Pennsylvania, 21, 26, 116, 166, 250, 400, 566; makes a report relative to foreign vessels, 122; offers resolutions relative to demands on Great Britain, 179. _See Index_, vols. 2, 3. LEWIS, JOSEPH, jr., Representative from Virginia, 36, 125, 187, 314, 424, 577; presents the petition of the Directors of Washington Bridge Company, 74; presents a bill to establish a turnpike company in the District of Columbia, 84. _See Index_, vol. 3. _Library of Congress._--_See Index_, vol. 2. _Licenses, Foreign_, bill relative to passed, 718. _Lighthouse Duties._--_See Index_, vol. 3. _Limitation, Statutes of_, in the House, resolution requiring the Committee on Claims to inquire into the expediency of repealing or suspending the statutes of limitation, so far as they operate in bar of the payment of certain claims referred, 468; report of committee, 468; report considered, 475; all this class of claims, being liquidated claims, can be allowed, so the Treasury Department states, without danger of fraud or imposition, 475; the amount is $300,000, of which one-fifth may not be applied for, 475; what is the statute of limitations? 475; in such statutes there are always exceptions, 475; what would be the course of an individual? 475; report not to open the act disagreed to, 475; resolution recommending provision for their payment agreed to, 475 resolution from the committee considered and referred, 526. _See Index_, vol. 2. LITTLE, PETER, Representative from Maryland, 424, 577; on pay of the army, 584; on privateer pensions, 704; on war taxes, 715. LIVERMORE, EDWARD ST. LOE, Representative from Massachusetts, 36, 124, 191, 351; on non-intercourse with Great Britain and France, 127; opposes the postponement of the resolution relative to the apportionment of representation, 224. _See Index_, vol. 3. LIVERPOOL, Lord, his despatch to Sir George Prevost, 515. LIVINGSTON, EDWARD, memorial relative to the Batture at Orleans, 118. _See Index_, vols. 1, 2. LIVINGSTON, ROBERT LE ROY, Representative from New York, 124, 187, 315, 424. LLOYD JAMES, jr., Senator from Massachusetts, 3, 33, 117, 166, 252, 403; on the repeal of the embargo act, 8; on non-intercourse with Great Britain, 28; on the postponement of the bill for additional duties, 31; on incorporating a bank of the United States, 270; on an increase of the navy, 405. _Loan Bill._--In the House, the bill to authorize a loan not exceeding the principal of the public debt, considered, 227; no objection to the principle of the bill, 227; doubtful as to the amount required, 227; borrowing money, should not be called paying the public debt, 227; all authority to borrow money should be express and specific as to the sum, 227; money wanted to defray the debts heretofore contracted, 227; specific in fact, 227; amendments proposed, 227; bill ordered to be engrossed, 227; further debate, 229; bill passed, 229. _Louisiana_ Lead Company, bill to incorporate rejected, 530. _Louisiana Purchase._--_See Index_, vols. 2, 3. _Louisiana Territory_, petition of inhabitants, 474. _See Territories._ _Louisiana, State of._--In the House, the bill for the admission of Louisiana, &c., considered in Committee, 523; amendment relative to the boundary offered, 523; better that this addition of territory should be the subject of a separate law, 523; there is no difficulty in either way, 523; the bill for admission should state the boundary, 523; motion passed, 523; question relative to the inhabitants of Florida Territory, attached to this bill, 523; passage of the bill for the admission of Louisiana, 526. _Louisiana_, vote for President in 1812, 573, 711. LOVE, JOHN, Representative from Virginia, 36, 125, 187, 316; makes a report on petition of citizens engaged in Miranda's expedition, 46; favors the resolution for immediate measures to liberate American prisoners in Carthagena, 95. _See Index_, vol. 3. LOWNDES, WILLIAM, Representative from South Carolina, 425, 577; in favor of a naval establishment, 489. _See Index_, vols. 2, 3. LYLE, AARON, Representative from Pennsylvania, 124, 187, 315, 424, 577. LYON, MATTHEW, Representative from Kentucky, 48, 125, 212; supports the resolution for immediate measures to liberate American prisoners in Carthagena, 95; relative to prosecutions for libel, 134; charge in the indictment against him for libel, 135; facts in his case, 135; on the torpedo experiment, 219, 221. _Claim of._--In the House, a memorial of Matthew Lyon for refunding his fine, under the Sedition Act, 426; moved to refer to the Committee on Claims, 426; if the petitioner has any claim, it is because the law is unconstitutional, of which this committee are not the proper judge, 426; moved to refer to a select committee, 426; the whole subject of these prosecutions was referred to a committee at a former session, which had been prevented from acting; if there is justice in any of this class of claims, it should be known, 427; idle to attempt to do by statute, what the constitution has endeavored in vain to enforce, 427; amendment proposed to the reference, 427; proper measures had not been taken to prevent a recurrence of measures of this kind, 427; amendment carried, 427. _See Index_, vols. 2, 3. M MACLAY, SAMUEL, Senator from Pennsylvania, 3; resigns his seat in Senate, 26. _See Index_, vols. 1, 2, 3. MACON, NATHANIEL, Representative from North Carolina, 36, 125, 187, 315, 425, 577; offers resolution relative to the expediency of continuing the embargo, 41; opposes the resolution for immediate measures to liberate American prisoners in Carthagena, 95; on the immediate arming of the public vessels, 98; on an extra session, 104; on counting blank ballots, 125; declines to be a candidate for the Speakership, 125; on an inquiry relative to prosecutions under the Sedition Law, 138, 139; on the Batture at New Orleans, 149; on non-intercourse with Great Britain and France, 160; on the remission of certain fines on emigrants from Cuba, 164; opposes postponement of the resolution relative to the apportionment of Representation, 224; on the ratio of representation, 316; on the admission of the Territory of Orleans, as a State, 321, 324; on commercial intercourse with France and Great Britain, 397; on laying additional duties, 431; on a Quartermaster's Department, 477; on the British intrigues, 518; on the State limits of Mississippi, 522; on mode of relief of Caraccas, 532; on pay of the army, 589; on the imprisonment of American seamen, 595; on an additional military force, 616; on an additional military force, 674. _See Index_, vols. 1, 2, 3. MADISON, JAMES, his letter as Secretary of State, on the object of the secret appropriation for foreign intercourse, 26; elected President in 1808, 27; number of votes for, as President, 27; number of votes for, as Vice President, 27; first inaugural of, 33; letter to the Senate on the time of taking the oath of office, 33; first message to Congress, 167; message to first Session of Twelfth Congress, 401; his Message at second Session of Twelfth Congress, 567; elected President, 574. _See Index_, vols. 1, 2. MAGRUDER, PATRICK, chosen clerk of the House, 126; elected clerk of the House, 425. _See Index_, vol. 3. MAGRUDER, ALLAN B., Senator from Louisiana, 569. MALBONE, FRANCIS, Senator from Rhode Island, 35, 116; decease of, 121. _Maritime Defence_, bill relative to, read twice in Senate, 413. MARION, ROBERT, Representative from South Carolina, 37, 125, 187; on the remission of certain fines on emigrants from Cuba, 163, 164. _See Index_, vol. 3. MARSHALL, J., letter to Mr. King, 362. _See Index_, vols. 2, 3. _Maryland_, vote for President in 1808, 27; in 1812, 573, 711. _Massachusetts_, vote for President in 1808, 27; in 1812, 573, 711; resolutions relative to a war with Great Britain, 415. MASTERS, JOSIAH, Representative from New York, 37. _See Index_, vol. 3. MATHERS, JAMES, appointed Sergeant-at-arms, by the Senate, 3; chosen Sergeant-at-arms of the Senate, 116. MATTHEWS, VINCENT, Representative from New York, 126, 188. MATHEWSON, ELISHA, Senator from Rhode Island, 3, 116, 166, 250. _See Index_, vol. 3. MAXWELL, GEORGE C., Representative from New Jersey, 426. MCBRIDE, ARCHIBALD, Representative from North Carolina, 125, 187, 315, 430, 577. MCCOY, WILLIAM, Representative from Virginia, 424, 577. MCCREERY, WILLIAM, Representative from Maryland, 36; presents petition of citizens confined in the jails at Carthagena, South America, 37. _See Index_, vol. 3. MCKEE, SAMUEL, Representative from Kentucky, 125, 187, 315, 425, 580; on foreign relations, 456; against a naval establishment, 484; on the bill laying an embargo, 544; on an increase of the Navy, 600. MCKIM, ALEXANDER, Representative from Maryland, 124, 188, 315, 424, 577; presents petition of American prisoners in Carthagena, 141; on Miranda's Expedition, 142; on the Torpedo experiment, 220; on reduction of the Navy, 227; on disbanding the master commandants in the Navy, 242; in favor of the admission of Mississippi, 352; on privateer pensions, 704. MCKINLEY, WILLIAM, Representative from Virginia, 316. _Medals and Prize Money_, for the officers and crew of the Constitution, reported on, 593. _Mediterranean Trade._--_See Index_, vol. 2. MEIGS, RETURN JONATHAN, jr., Senator from Ohio, 26, 116, 166; resigns his seat in the Senate, 264. _Memorial_, from citizens of New York relative to the embargo, &c., 413; remarks, 414. _Meridian, a_ first, Report on the establishment of, 222. _Message_ of President Jefferson at second Session of the Tenth Congress, 3; on expenses of foreign intercourse, 26; of President Madison at first Session of Eleventh Congress, 117; of President Madison at second session, Eleventh Congress, 167; communicating circular of F. J. Jackson, 193; with report of Secretary of State relative to Tombigbee and Alabama rivers, 213; of President Madison at third Session of Eleventh Congress, 251; confidential from the President to the Senate in secret session, 312; relative to reparation for the attack on the frigate Chesapeake, 403; relative to the battle of Tippecanoe, 403; and documents relative to the hostile policy of Great Britain, 404; on the Hudson River and Lake Ontario Canal, 404; relative to British Intrigues to dismember the Union, 408; relative to a temporary embargo, 410; relative to the battle of Tippecanoe, 466; with proceedings of a convention in Orleans Territory, 506; do. with documents relative to British intrigues, 506; relative to an embargo, 544; on affairs with Great Britain, 551; and documents relative to Florida, 562; Annual to both Houses of Congress, 567; communicating the capture of the Macedonian and Frolic, 570; and documents relative to the capture of British vessels on Lake Erie, 571; communicating captures and destruction of the Java, 574; with documents relative to the capture of the frigate Macedonian, 597; relative to conduct of British officers to persons taken in American armed ships, 608; relative to impressed seamen, 705; relative to the capture of the frigate Java, 716; relative to the Orders in Council, 717. _Messages, Presidential._--_See Index_, vols. 1, 2, 3. METCALF, ARUNAH, Representative from New York, 424, 577. MILLEDGE, JOHN, Senator from Georgia, 21; chosen President _pro tem._ of the Senate, 27. _See Index_, vols. 1, 2, 3. MILLER, PLEASANT M., Representative from Tennessee, 125, 187, 315; on the admission of the Territory of Orleans as a State, 323. _Military Force, additional._--_See Army._ _Military Academy._--_See Index_, vol. 2. _Militia_, arming and classing of considered, 708. _See Index_, vol. 3. MILNOR, WILLIAM, Representative from Pennsylvania, 36, 124, 187, 315, 424, 577; on an extra session of Congress, 102; on non-intercourse with Great Britain and France, 107; on the sale of all the gunboats, 229; on commercial intercourse with France and Great Britain, 367; on the protection of American seamen, 429; on the British intrigues, 519; on increased pay of the Army, 583; on the imprisonment of American seamen, 594, 595. _See Index_, vol. 3. _Mining Company_, bill for the incorporation of, in upper Louisiana, 405; bill passed, 409. _Mint, establishment of._--_See Index_, vols. 1, 2. _Miranda's Expedition._--In the House, petition of thirty-six American citizens confined at Carthagena, in South America, under sentence of slavery, 37; referred, 39; report of committee, 46; resolution of committee considered, 95; postponement moved, 95; lost, 95; an agreement on the resolution would involve the government in difficulty without answering any good purpose, 95; it would tend to prove that the government had connection with the expedition, 95; the persons had engaged themselves in foreign service, 95; had been taken and condemned for piracy, 95; appeal to humanity, 95; such an appeal could not involve the government, 95; the men had been deluded, 95; they had been sufficiently punished, 95; resolution lost, 96. Resolution offered, that the President take measures to effect their liberation if satisfied they were involuntarily drawn into the enterprise, 142; in this case to lean to the side of humanity is an act of great injustice and cruelty to society, 142; it is not a question like redeeming our brethren from slavery in Tripoli, but whether this government would lend its countenance to the class of men concerned in the expeditions of Miranda and Aaron Burr, 142; in passing this resolution we hold up a premium to vice, 142; no justice in the proposed interference, 143; a bounty should be allowed on the exportation of every man of similar principles, 143; the Spanish government never would release them until the government interfered, 143; the only money necessary was to defray the expense of bringing them back, 143; if the President has the power he has not chosen to exercise it, 143; did not knowingly engage in this expedition, 143; they declare they did not understand the nature of the expedition, 143; reasons to show this, 144; a judicial investigation was had in New York previous to embarkation, 144; those who enlisted the men declare they were not informed of the object of the expedition, 144; embarrassment of their situation, 144; if the men were guilty they should not receive the benefit of the interposition of government, 144; these appeals for mercy would apply better to the Spanish government, 145; subject of the greatest delicacy for the United States to interfere, 145; statement of a lawyer, 145; we should place the President in a very unpleasant situation, 146; what has the British Government done? 146; have not the British subjects been liberated? 146; what has been the situation of Great Britain to Spain? 146; what connection exists between the statements that have been made and the merits of the case? 147; question lost, 147. _Mississippi Territory._--Memorial of Legislative Council 264; report on petition of citizens, 465. _See Territories._ _Mississippi, free navigation of._--_See Index_, vol. 2. _Missouri Territory._--_See Territories._ MITCHELL, JOHN, letters relative to American prisoners, 705. MITCHILL, SAMUEL L., Senator from New York, 3; on the repeal of the embargo act, 16; Representative from New York, 315, 424, 577; on the ratio of representation, 317; makes a report on the Spanish American colonies, 436; on the bill to enable the people of Mississippi to form a State Government, 521; on imposing additional duties, 539; on the temporary embargo bill, 550; reports on an astronomical observatory, 705. _See Index_, vols. 2, 3. MONROE, JAMES, number of votes for, as Vice President, 27. _See Index_, vols. 1, 2. MONTGOMERY, DANIEL, jr., Representative from Pennsylvania, 36. MONTGOMERY, JOHN, Representative from Maryland, 36, 125, 187, 315; on non-intercourse with Great Britain and France, 159; on remission of certain fines on emigrants from Cuba, 164; against granting petition of Elizabeth Hamilton, 215; reports on Bank of the United States, 215; against the claim of Jared Shattuck, 352. _See Index_, vol. 3. MOORE, ANDREW, Senator from Virginia, 5; on the repeal of the embargo act, 11. _See Index_, vols. 2, 3. MOORE, NICHOLAS B., Representative from Maryland, 36, 125, 187, 315. _See Index_, vol. 3. MOORE, THOMAS, Representative from South Carolina, 53, 125, 187, 315, 425, 577. _See Index_, vols. 2, 3. MORGAN, JAMES, Representative from New Jersey, 424, 580. MORROW, JEREMIAH, Representative from Ohio, 36, 125, 187, 315, 425, 577; reports on the claim for military services in the old French war, 319. _See Index_, vol. 3. MORROW, JOHN, Representative from Virginia, 36. _See Index_, vol. 3. MOSELY, JONATHAN O., Representative from Connecticut, 36, 124, 187, 315, 424, 577; on an additional military force, 614. _See Index_, vol. 3. _Mounted Troops._--In the House, resolution presented to authorize an expedition of mounted volunteers against certain hostile Indian tribes, 579; the people have the will and power to extirpate these tribes or compel their surrender, 579; duty of Congress to organize this power and direct this will, 579; since the defeat of Braddock no campaign had been carried on with them suitable to bring them to reason, 579; experience of the past, 579; the work has been begun and should be completed, 580; subject considered, 650; resolutions relative to, offered, 651; laid on the table, 651. MUMFORD, GURDON S., Representative from New York, 36, 212, 316; on submission to the late edicts of England and France, 49; opposes laying up of the frigates, 229; on commercial intercourse with France and Great Britain, 378. _See Index_, vol. 3. N _National University._--_See Index_, vol. 2. _Naturalization Laws._--In the House, resolution relative to amending the law, offered, 543; by the law the courts are prohibited naturalizing foreigners since the declaration of war, 543; to persons who have taken their first papers the Government is pledged, 543; resolution referred, 543; supplementary bill introduced, 594; amendments offered, 594. _In the House._--Motion to amend considered, 715; motion lost, 715; section depriving of his right any one who leaves the country for two years, lost, 715; bill ordered to be engrossed, 715; passage opposed, 715; bill recommitted, 715. _See Index_, vols. 1, 2. _Naturalized Citizens._--Petition for protection, 574. _Naval Establishment._--Bill relative to, read third time in the Senate, 176. _In the House._--Bill to employ an additional number of seamen and marines, considered; amendments propose immediate arming and manning all the armed vessels, 97; President already authorized to fit out these vessels when the public service requires, 97; if no occasion exists, the expense is a sufficient argument against it, 97; take six months to prepare our ships, 97; they are rotting now at the docks, 97; if out at sea they might be useful, 97; a naval force, the most effectual protection to our seaports, 97; however small our naval force it should not be undervalued, 97; a war with Great Britain could be carried on only by distressing her trade, 97; if we had a navy it would furnish the strongest temptation to attack our seaports, 98; moved to refer amendments of the Senate to a committee of the whole, 98; motion lost, 98; no estimate accompanies this bill, 98; this House as much right to judge of the force requisite as any other department, 98; advantages that will accrue to the nation from a few fast-sailing frigates, 98; what defence a few frigates would be could not be understood, 98; our power of coercion is not on the ocean, 98; sufficient evidence in history to warn the United States against a naval force, 98; facts bearing on the case, 98; economy is good in time of peace, but not for war, 99; it is shocking doctrine that this country ought to have a navy competent to cope with a detachment of the British navy, 99; England now sole mistress of the ocean, 99; as well think of embarking a hundred thousand men to attack France on her soil, as of building ships enough to oppose the British navy, 99; the question is whether we will call into actual service the little navy we possess, 99; those attempting to argue in favor of this measure involve themselves in absurdities, 99; these absurdities exposed, 99; not wealth enough in this whole nation if each should give his all, to maintain our rights against Great Britain, 100; at the close of the Revolutionary war we had but one frigate, and the best thing we did was to give that away, 100; the insult at Savannah, 100; would it be good policy to let our means of carrying on war on the ocean rot at our docks? 100; why then should they not be manned? 100; the expense of this measure will compel Congress to borrow money, 100; disadvantages of loans, 100; on the score of protection to trade it is not proper to fit out a navy, 101; this proposition a mere entering wedge, 101; causes an extension of Executive patronage which should be limited, 101; nothing in the nature of the Government or foreign relations to require a navy, 101; not now discussing the propriety of raising a naval force for offensive purposes, 101; an invasion, whether on land or water, touches equally the life-blood of every man, 101. _In the House._--Bill to reduce the naval force read in committee, 227; moved to strike out so much as provides that all the frigates but three shall be sold, 228; moved to strike out the whole section, 228; the navy should be put on the footing of the peace establishment, 228; reform in the expenditure desired, 228; other amendments proposed, 228; motion to insert Washington as a place for a navy yard carried, 229; indefinite postponement moved, 229; withdrawn, 229; question to strike out so much as orders the sale of all the gunboats, 229; mortifying to witness the events unfolding in the Old World, and the paralyzing system going on in this country, 229; some system should be adopted for the protection of our commerce, 229; "millions for defence, not a cent for tribute," 229; the vessels should be fitted out, 230; motion to place the navy on the footing of 1806, 230; the system of the navy yards requires a thorough reform, 230; mode of equipment referred to, 230; a reform in the expense, not the abolition of the navy, was the great desideratum, 230; what appearance would the passage of this bill present to the world, after the resolutions adopted at the commencement of the session? 230; the _terrapin_ policy, 231; no one can be insensible to the necessity of protection, 231; consider the immense space exposed, 231; the navy is at present sufficiently reduced, 231; it is asked, what has the navy done? 231; not that want of system at the navy yards which is complained of, 232; the smaller vessels are in perfect repair, 232; what mighty good has the army done by land? 232; the effects of a naval force upon Cornwallis, 232; the people of the United States are destined to become a great naval power, 232; object of the present reduction is to enable the Government to dispense with loans and taxes, 233; nothing can so tend to strangle the infant Hercules of the American navy, as the injudicious manner in which that power has been attempted to be brought into action, 233; the revenue necessary for a naval establishment is founded on commercial greatness, 233; but we have changed and perverted all this, 233; whence come these proceedings which we find? 233; the reduction will not do any effectual service, 234; comparative expenses of the navy under the several administrations, 235; expenses of the marine corps, 236; expenses of the navy yards, 236; annual cost of a seaman, 236; arguments considered, 237; is it necessary to continue this establishment in its present state? 238; when the United States had forty sail afloat and eight thousand seamen, they had no navy yards, 238; our duty to commence a thorough investigation, 239; examinations of the committee, 239; repairs of the vessels, 239; naval equipments, 239; motion to strike out so much as orders the sale of all the frigates but three, lost, 240; section relative to dismissal of seamen lost, 240. Motion to strike out the section which reduces the marine corps considered, 240; former price of rations, 240; proportion of mariners to seamen, 240; who are the true friends of the Administration? 240; section stricken out, 242; motion to amend so as to disband the master commandants, 242; reasons asked for, 242; the proposition is preposterous, 242; never been any reason assigned for the creation of these officers, 242; this amendment called submission to the belligerents, 242; our situation requires a war speech against somebody, 243; well if our relative expenditures could be brought back to Mr. Adams' Administration, 243; amendments proposed, 244; save an expenditure of near a million dollars, 244; the original bill in a different form, 244; amendment proposed to limit the number of seamen to fifteen hundred, 245; this retrenchment in the navy will end in smoke, 245; Adams' Administration made the only reform ever made in the naval establishment, 245; reduction made by the act of 1801, 245; proceedings in 1806, 245; further debate, 246; amendment moved, 247; lost, 247; original amendment passed, 247. _In the Senate._--The bill relative to an increase of the navy considered, 405; amendment proposed, authorizing the President to cause to be built, as soon as possible, a blank number of frigates, 405; offered from a sense of duty to support the dignity, protect the rights, and advance the best interests of the country, 406; if it be not the purpose of the Government to engage in an open, actual, efficient war, or to place the nation in such a complete state of defence as to avert war from our readiness to meet it, then some of the measures of the present session are not only inexcusable, but nearly treasonable, 406; what was the consequence of the course of the Government in 1793? 406; look at the case of the war with Tripoli, 406; then followed the decrees, 406; commerce has been abandoned, 406; what was the leading object of the adoption of the Federal Constitution in the northern parts of the Union? emphatically to protect commerce, 406; the only money paid into the Treasury which can justly be placed to the exclusive credit of the commerce, is the sum retained in commerce; how, then, has she done every thing for the Government? 407; who are most interested in commerce; the growers of the articles, or the factors, or freighters employed in their exchange? 407; exports of foreign productions constitutes a commerce which is the legitimate offspring of war, and expires with the first dawnings of peace, 408; it is prosecuted chiefly by commercial cities east and north of the Potomac, 408; a navy can injure commerce, but cannot afford it protection, unless it annihilates the naval force of the adverse nation, 408; these frigates are to be employed in destroying the commerce of the enemy, and not in fighting her armed vessels, according to the representations of gentlemen, 408; bill concerning the Naval establishment considered, 477; moved to fill the blank of the first section with $480,000; a great question, involving, in this subject, to a considerable extent, the fate of a species of national defence, the most essential and necessary, 478; if the infant Naval establishment is put down, the majority of this House run a great risk of becoming the minority, 478; it has been said this country is a great land animal, which should not venture into the water, 478; the ocean is the farm of a great portion of our people, 478; we are now going to war, to protect their rights, 478; if Great Britain had not the Canadas on our border, how could we attack or resist her? 478; the Naval establishment has been too much neglected, 478; the committee ask what this House will do, principally toward establishing and perpetuating a respectable naval force, for the protection of the rights of the people exposed on the ocean, 478; the adoption of a respectable Naval establishment is deemed improper on the grounds of its enormous expense, and the inability of the nation to resist with effect, the immense naval power of Great Britain, 478; its expense during eighteen years, 479; an examination of the figures and statements, 479; the average annual expense is little more than twice the amount of our economical civil list, 479; less expensive than the military establishment, 479; compare the service of the army with that of the navy, 479; if the expenses have been extravagant, there is an opportunity through experience, to reform the abuse, 479; a naval force the cheapest defence, 479; compare its expense with that of permanent fortifications, 479; the force proposed is sufficient to protect us on our own seas, and defend our ports and harbors against the naval power of Great Britain, 479; such is the opinion of naval men, 479; a triple force will be required by the enemy to put himself on a footing of equality with that of the United States, 480; the force sent here must be relieved every three months, 480; Halifax is the only suitable port Great Britain has on this coast, 480; great misconception on the subject of the British naval force, 480; this force examined, 480; only a limited number of ships can be directed by her towards a given point, 480; her seamen, also, are limited, 480; her pecuniary resources are limited, 480; what number of vessels is she practically able to keep in commission? 480; some oppose this bill, lest we should become too great a naval power, 481; but a navy is said to be anti-republican, 481; we are told that navies have ruined every nation that has employed them, 481; objections to the bill, 481; after the war is over, the navy will remain, 482; the army will be disbanded, 482; it is inexpedient to commence a permanent naval establishment, 482; we are unprepared for it, 482; we cannot protect our commerce on the ocean, 482; the expenses of a Naval establishment exceed the profits which arise from the commerce it protects, 483; these expenses are a serious objection, 483; what has the nation benefited for the past enormous expenditure? 483; details of the expenditure at the Washington Navy Yard, 483; a navy will be the means of exciting many wars, 483; consider the fate of all nations who have been famous for their navies, 483; Great Britain must sink under the heavy pressure, 484; our vessels may only tend to swell the present catalogue of the British Navy, 484; small ships are proper for the service of the United States, 484; if we proceed to build a Naval establishment, it may affect the destinies of this nation to the latest posterity, 484; this nation is not inevitably destined to become a great naval power, 484; reasons why a permanent establishment will prove ruinous, 484; the proposed establishment cannot be maintained, without permanent internal taxes and a constant increase of public debt, 484; navies have never been considered adequate to the complete protection of commerce, 484; the situation of Europe is in all respects different from ours, 485; instructions of the Virginia Legislature to their Senators in Congress, in 1801, 485; establish a navy and this country may bid farewell to peace, 485; our little navy has already contributed much towards the irritation which exists between us and England, 486; the object in view is as ruinous to the finances of the people as it will be destructive to the peace of the nation, 486; since the political revolution in 1801, the question of building a navy has never before been presented directly to the consideration of Congress, 486; the United States cannot maintain a navy without oppression to the great mass of the community in the persons of tax-gatherers, 486; the system as well as the expense objected to, 486; _note_, 486; the people will not support such a naval establishment, 487; the advocates of a navy need not expect to cover the deformity and danger of the system, by telling the people they are the friends to the protection of commerce, 487; the division of sentiment in the delegations from different States, 487; search for examples in ancient and modern history, 487; has the navy of Britain ever been confined to the protection of her lawful commerce? 488; the report has assumed principles as erroneous as they are novel, 488; maritime commerce has only a coeval right of protection with other objects; still the greatest means and resources of the Government have been devoted to its protection, 488; it is asked how we shall contend with a maritime nation, without a navy? objections to the object in view answered, 489; the nature of commerce, 489; the value of commerce has been strangely misunderstood, 489; but we have determined to defend it, 490; we must employ the cheapest and most efficacious means of hostility we possess, 490; if it is absurd to protect commerce by a navy, how much more so by an army, which costs more than a navy, 490; the strongest recommendation of a navy to free governments has been that it was capable of defending, but not of enslaving, 490; a navy, it is said, would terminate in an aristocracy or a minority, 490; the constitution was formed by the union of independent States, that the strength of the whole might be employed for the protection of every part, 490; an army the States can have without the Union, but an adequate navy they cannot, 490; the experience of the world, 491; expenses of the navy, 491; it is said our resources are insufficient for its equipment, 491; the bill embraces two objects, 492; one relates to the repairs and equipment of the ships in service; the other contemplates building ten additional frigates, and laying the foundation of a new Naval establishment, 492; as an abstract question, it is for the interest of the United States to begin the establishment, 492; this proved by its connection with the great and essential interests of the country, 492; commerce springs from our agriculture, and must be protected, 493; while England and France have been contending for the mastery, we, with a suitable naval force and strict neutrality, might have pursued a gainful trade, 493; this question must have an influence on our destiny favorable if decided negatively, and adverse if decided affirmatively, 493; the constitution is not imperative with regard to regulating and protecting commerce, 494; the general principles and remote consequences upon which this question has been considered, 494; how it is proposed to protect commerce, 495; from a naval power have flowed the most copious streams of human misery, 495; the plunder of half the world has not sustained the British Navy, 495; a diversity of opinions has always existed on this subject, 496; extraordinary that so much unreasonable jealousy should exist in regard to a Naval establishment, 496; the source of alarm is in ourselves, 497; abundant security in the nature of our Government against abuse, 497; what maritime strength is it expedient to provide for the United States? 497; three different degrees of power present themselves, 497; these degrees considered, 497; views of Col. Daviess, 498; _note_, 498; what was folly in 1798 may be wisdom now, 498; blank filled with $100,000, 498; bill reported to the House, 498; question on filling the blank for repairing with $480,000, it was carried, 498; question on agreeing to the report of the committee to strike out the section which contemplated building new frigates, 499; the time inauspicious to begin a navy, 499; our ships probably fall a prey to the superior force of England, 499; the necessity and duty of a systematic protection of our maritime rights by maritime means, 499; interest is our only sure and permanent bond of union, 499; the national protection of our essential interests will be undertaken by the States if it is not by Congress, 499; the nature of the interest to be protected, and the nature of the protection to be extended, 500; the locality of the interest, 500; it is the leading interest of more than one-half, and the predominant interest of more than one-third of the Union, 500; comparison of our commerce with that of Great Britain, 501; the permanency of this interest exhibits the folly and madness of its neglect, 501; as to the nature of the protection, rights in their nature local can only be maintained where they exist, and not where they do not exist, 502; the nature and degree of maritime protection, and our capacity to extend it, 502; our exertions should be extended rather than graduated by the present exigency, 502; there can be no mistake touching the branch of interest most precious to commercial men, 502; some difference of opinion may arise touching the nature and extent of this naval force, 503; is it a want of pecuniary or physical capacity? 503; this policy will produce confidence at home and respect abroad, 503; effect of the opposite policy, 503; a navy never had and never could protect our commerce, 504; every nation which has embarked in a naval establishment has eventually been crushed by it, 504; the embarrassments of our commerce are not owing to a want of a navy, 504; this establishment proposed could not be supported but by a ruinous expense, 504; question on striking out carried, 504; amendments offered to procure a dockyard, and to build four frigates, 505; do. lost, 505; bill ordered to a third reading, 505. _In the House._--Bill from the Senate considered, 599; moved to add the word "teen," to "four," making fourteen gunships, 599; time to try the question whether we are to have a navy, 599; British arms cannot withstand American on the seas, 599; four seventy-fours are mere mockery, 599; can easily support such a force 599. Should guard against being carried too far by the current of popular opinion, 599; should authorize that force which can be prepared at the shortest notice, 599; for what purpose are these ships to be built? 600; where is your commerce to protect? 600; the object of these vessels, then, is to fight your battles, 600; moved to strike out all relating to seventy-fours, 601; to introduce these ships would fix the policy of a navy upon the Government, 601; scene in the British metropolis, 601; if in view of recent events a navy is not sustained, its case is hopeless, 601; the constitution settles the policy of a navy, 601; seventy-fours as compared with smaller vessels for service, 602; protection due to every right, best mode to effect it, 603; importance of a naval force attested on record, 603; facts which we have in the case, 603; is it for an infant nation to be deterred by a want of preparation? 603; what were the preparations for the Revolutionary war? 603; a naval force the cheapest the nation can resort to for defence and protection, 604; cost of the force, 604; the different kinds of vessels proposed, 604; the question is whether it is best to build any ships of the line or to confine our efforts to frigates, 605; the objects for their employment to be considered, 605; ships better for battle, frigates and sloops for cruisers, 605; as we have no powerful ships, England can easily protect by convoy all her valuable fleets, 605; it is said these ships would be blockaded, 605; we are in a prepared state to build seventy-fours, 606; motion to strike out seventy-fours negatived, 606; motion to strike out seventy-fours, and insert frigates and sloops, carried, 606; question on the passage of the bill, 609; a navy will cost more than it ever will be worth to the nation, 609; a kind of popular delusion at this time about a navy, 609; further objections, 610; bill passed, 610. _See Index_, vols. 1, 2, 3. _Navigation Laws._--In the House, resolutions relative to vessels coming from ports to which our vessels cannot go and also sea-letter vessels offered, 188; motion to refer to Committee on Commerce, 188; investigation, the object of the resolutions, 188; character of the propositions such as to require it, 188; they are founded on permanent principles, to which the nation may adhere in every alternative, 188; reference carried, 189. _Negroes, Kidnapping of._--_See Index_, vol. 2. NELSON, HUGH, Representative from Virginia, 424, 577; on rules and orders of the House, 471; presents the petition of citizens of Louisiana Territory, 474; on the temporary embargo bill, 547. NELSON, ROGER, Representative from Maryland, 37, 125, 187; on submission to the late edicts of England and France, 72; presents a bill authorizing an increased naval force, 84; favors the resolution for immediate measures to liberate American prisoners in Carthagena, 95; reports on petition of officers of the Revolution, 212. _See Index_, vol. 3. _Neutral Rights, violation of._--In the House, resolutions submitted, which are designed to vindicate the commercial rights of the United States against belligerents of Europe, 189; their introduction not inconsistent with the most friendly negotiation, 189; high time these rights were vindicated or abandoned, 189; upon what principles do the belligerents pretend to justify these commercial restrictions? 189; not the true principle, 189; what principles are more specifically asserted by Great Britain? 189; the right to blockade by proclamation, 189; the only principle we recognize, 190; this right founded on the most arbitrary power, 190; have we not the same right as Great Britain to prohibit trade? 190; objected, that the adoption of the resolutions would lead to hostility, 190; the resolutions, 190; laid on the table, 191. _See Index_, vol. 3. NEW, ANTHONY, Representative from Kentucky, 424, 577; on the claim of Matthew Lyon, 426. _See Index_, vols. 1, 2,3. NEWBOLD, THOMAS, Representative from New Jersey, 36, 124, 187, 319, 424, 577. _New Hampshire._--Vote for President in 1808, 27; in 1812, 573, 711. _New Jersey._--Vote for President in 1808, 27; in 1812, 573, 711. _Newspapers._--Three daily ordered for the House, 425. NEWTON, THOMAS, Representative from Virginia, 36, 125, 187, 315, 424, 577; on additional revenue cutters, 47, 48; on permitting Swedish and Portuguese vessels to land, 127; on the remission of certain fines on emigrants from Cuba, 164; against a committee on manufactures, 193; relative to the conduct of the British Minister, 206; reports on the mortality of the troops near New Orleans, 247; on laying additional duties, 431. _See Index_, vols. 2, 3. _New York._--Vote for President in 1808, 27; in 1812, 573, 711. NICHOLAS, WILSON CARY, Representative from Virginia, 37, 141; on the proceedings on counting the electoral votes, 105; on non-intercourse with Great Britain and France, 109. _See Index_, vols. 2, 3. NICHOLSON, JOHN, Representative from New York, 124, 188, 319. _Non-Exportation, Temporary._--Bill passed Senate, 411. _Non-Exportation in Foreign Bottoms._--In the House, the bill to prohibit the exportation, &c. of certain articles considered, 719; bill is not what it professes to be, 719; it denies commerce to neutrals, 719; merely calculated to produce vexation and embarrassment at home, 719; what are the intentions and objects of the bill as stated? 720; only a part of a contemplated system of non-exportation, 721; certain articles struck out, 722. _Non-Importation_, suspension of, report on, 713. _See Index_, vol. 3. _Non-Intercourse._--_See Intercourse._ _North Carolina_, vote for President in 1808, 27; in 1812, 573, 711. O _Oaths._--_See Index_, vol. 1. _Observatory_, astronomical report on, 705. _Ohio._--Vote for President in 1808, 27; in 1812, 573, 711. _Ohio State Government._--_See Index_, vol. 2. _Officers of the Revolution_, report on petition of, 212. _Officers, removal of._--_See Index_, vol. 1. _Offices, plurality of._--_See Index_, vol. 3. ORMSBY, STEPHEN, Representative from Kentucky, 442, 577. _Ordinance of 1787, action of Indiana._--_See Index_, vol. 3. _Orleans Territory._--_See Territories._ P PARKER, NAHUM, Senator from New Hampshire, 3, 116, 166; resigns his seat in the Senate, 250. _See Index_, vol. 3. PEARSON, JOSEPH, Representative from North Carolina, 126, 187, 315, 425, 577; on commercial intercourse with France and Great Britain, 390; on an additional military force, 618. _Pennsylvania._--Vote for President in 1808, 27; in 1812, 573, 711. _Pennsylvania Insurgents._--_See Index_, vol. 1. _Petitions, reception of._--_See Index_, vol. 2, & _Slavery_, vol. 1. PICKENS, ISRAEL, Representative from North Carolina, 425, 577; on Indian Affairs, 428. PICKERING, TIMOTHY, Senator from Massachusetts, 3, 116, 166, 250; on the repeal of the embargo act, 21; on incorporating a bank of the United States, 302. _See Index_, vols. 2, 3. PICKMAN, BENJAMIN, jr., Representative from Mass., 124, 197, 319; on non-intercourse with Great Britain and France, 160; moves to postpone the resolution relative to the apportionment of Representation, 224. PIKE, CAPT. Z. M., bill making compensation to, 96. _See Index_, vol. 3. PINCKNEY, C. C., number of votes for, as President, 27. PIPER, WILLIAM, Representative from Massachusetts, 424, 703. PITKIN, TIMOTHY, jr., Representative from Connecticut, 36, 124, 187, 315, 424, 577; against immediate engrossment of the bill relative to the power of territorial governments, 40; supports petition of Elizabeth Hamilton, 215; reports on the establishment of a first meridian, 222; on the ratio of representation, 317; on the admission of the territory of Orleans as a State, 326; against the admission of Mississippi, 352; on commercial intercourse with France and Great Britain, 397; on rules and orders of the House, 472; on the British intrigues, 515; on French spoliations, 526; on pay of the Army, 588; on an additional military force, 623. _See Index_, vol. 3. PLEASANTS, JAMES, jr., Representative from Virginia, 424, 577; presents memorial of inhabitants of St. Louis, 434; on an additional military force, 617. POINDEXTER, GEORGE, delegate from Mississippi, 36, 126, 187, 319, 425, 578; reports a bill relative to the power of territorial governments, 39; proposes to have the bill engrossed at once, for a third reading, 39, 40; on territorial government for Mississippi, 42; on the petition for a division of the Mississippi territory, 141; on the admission of the territory of Orleans as a State, 325; in favor of Mississippi being admitted into the Union, 352; on Indian affairs, 428; on the bill to enable the people of Mississippi to form a State government, 519; on the admission of Louisiana, 523. _See Index_, vol. 3. POND, BENJAMIN, Representative from New York, 424, 577. POPE, JOHN, Senator from Kentucky, 3, 118, 166, 250, 400, 570; on the repeal of the Embargo act, 7; on the enforcement of the Embargo, 26; on the occupation of Florida, 253; on incorporating a bank of the United States, 285; on a recess of Congress, 412. _See Index_, vol. 3. PORTER, JOHN, Representative from Pennsylvania, 36, 124, 187, 316. _See Index_, vol. 3. PORTER, PETER B., Representative from New York, 124, 187, 316, 424, 705; on the Bank of the United States, 343; reports relative to the continuance of the charter of the United States Bank, 398; on Foreign Relations, 432; on the bill laying an Embargo, 546. POTTER, ELISHA R., Representative from Rhode Island, 124, 187, 315, 430; on imposing additional duties, 542; on an increase of the Navy, 609. _See Index_, vol. 2. POSEY, THOMAS, Senator from Louisiana, 570. _Postage of Newspapers._--_See Index_, vol. 3. _Post Office._--_See Index_, vol. 1. _Potomac River, Bridge._--_See Index_, vol. 3. POYDRAS, JULIEN, Delegate from the Orleans Territory, 141, 187, 315; on the Batture at New Orleans, 148, 149. PREBLE, Commodore, letter of the Secretary of the Navy relative to a gold medal for, 610. _See Index_, vol. 3. _Presents to Ministers._--_See Index_, vol. 2. _Presidency, Vacancy in._--_See Index_, vol. 1. _President_, certificate of election of, 27. _Presidential Election_, certificate of, 574. _Presidential Election in Massachusetts._--In House, resolution relative to the mode in which it was conducted, 105; the present course will make no difference in the result, but it should induce the House to consider the propriety of providing some mode of distinguishing between legal and illegal elections, 105. _Previous Question._--In the House, amendment offered to the rules, that when the previous question is ordered to be taken, upon the motion in question being put, every member who has not spoken shall be at liberty to speak once, 468; this secures to every member the right to speak at least once on every question, 468; what is to justify this measure of imposing silence? it is said the right of debate has been abused, 468; the majority insist that the rule will not be abused, 469; neither the journals of State Legislatures nor the laws of Parliament offered examples for this arbitrary proceeding, 469; there is a difference between the freedom of debate and the abuse of it when you cannot get a decision without an exertion of physical strength, 469; this has been our course several times, 469; a debate is often prolonged to prevent a decision, 469; if the majority abuse this responsibility, the people will correct it, 469. If the majority do not possess it under the constitution, it should not be given to them, 469; the rule deserves the character of a _Gag-law_ more than the sedition law ever did, 469; this question affects the essential principles of civil liberty, and saps its hopes at the very foundation, 469; the ground taken by those who oppose this proposition is, its necessity and convenience, 469; these are the points which should be most vigilantly guarded, 469; the subject is in some respects difficult to manage, 469; a feeling in and out of the House unpropitious to an impartial debate, 469; what is that principle of civil liberty which is amalgamated and identified with the very existence of a legislative body? 469; the right of every individual member is in fact the right of his constituents, 470; let not any man say this power will not be abused, 470; the right to speak is an individual right, limit it as you please, consistent with its single exercise, 470; it is not true that this power ever was, or ever can be, necessary in a legislative body, 470; it may be sometimes convenient, 471; the haste and clatter which always attends the close of a session is urged in favor of this measure, 471; should a member, on great questions, be denied the privilege of speaking? 471; to interdict the freedom of speech is a violation of right, 471; freedom of speech is secured by the constitution, 472; shall we be deprived of it when we come to this House? 472; this rule has always been in practice, 472; the principle is, that a majority at any time in this House can, by calling the previous question, cut off all debate, 472; a new construction was given at the close of last session, by which this rule, which it is proposed to amend, was adopted, 472; no such power ever before the last session exercised over the members, 472; see Journal of the first session of the Third Congress, 472; reason of the introduction of the previous question, 473; no necessity for it exists, 473; amendment lost, 474; further amendment proposed, 474; rules adopted, 474; _note_, 474. _Privateers_, encouragement to--petition of citizens of New York for a reduction of duties on prizes, 578; bill for encouragement of, 580. _Captures_, petition relative to, 594; a bill relating to captures, 606; do. regulating pensions to persons on board private armed ships, 607; duties on privateer prize goods, report on, 607; documents referred to in the report, 607; bill granting a bounty to, considered, 719; passed, 719. _In the House._--Bill to compensate officers and crew of our public vessels, for vessels of the enemy necessarily destroyed at sea, 703; bill grows out of the case of the Guerriere and Constitution, 703; principles of the hill unprecedented in any country, 703; bill defended on the ground of expediency and precedent, 704; inexpedient and unprecedented, 704. _In the House._--Bill to provide pensions for persons disabled in private armed vessels, 704; improper to adopt a principle so liable to abuse, 704; a per cent. of wages had been, heretofore, reserved to provide a fund for this object, 704; important services rendered by privateers, 704; doubtful, 704; bill recommitted, 705; report on, 712. _In the House._--Bill to encourage by remitting all claim to duties on captured goods, 716; private armed vessels, encouragement of, bill for the, passed, 716. _Proceedings, confidential_, in the Senate, 415. _Protective duties._--_See Index_, vol. 1. _Pro tem. appointment, duration of._--In the Senate, will an appointment under a State executive to represent a State in the Senate, cease on the first day of the meeting of the Legislature, considered, 118; resolution submitted, 121; amendment moved and lost, 121; resolution passed, 121. _Public credit_, bill to provide for the support of, passed, 122. _Public lands_, report on the cash system, 611. _Public lands._--_See Index_, vols. I, 2, 3. PUGH, JOHN, Representative from Pennsylvania, 36. _See Index_, vol. 3. Q _Quakers, memorial of._--_See Index_, vols. 1, 2, 3. _Quartermaster's Department._--In the House, a bill for the establishment of, from the Senate, came up for its third reading, 476; no necessity for this office, and that of a Purveyor of public supplies, 477; the great object is to provide for a Quartermaster-General's department, instead of military agents, as employed at present, 477; these agents, without much responsibility, had nearly controlled the whole war department, 477; the duties of Quartermaster-General and Purveyor are very different, 477; the former is next in consequence to the Commander-in-chief, every movement of the army is first communicated to him, 477; if not a Purveyor of supplies during the Revolutionary war, there was a clothier, who did nearly the same business, 477; impossible to go to war without a Quartermaster-General, 477; bill passed, 477. QUINCY, JOSIAH, Representative from Massachusetts, 36, 124, 187, 316, 424, 581; on resolution relative to amending the act laying an embargo, 41; on voting twelve additional revenue cutters, 48; on submission to the late edicts of England and France, 49, 56; on non-intercourse with Great Britain and France, 107; relative to prosecutions for libel, 134; on the call on the President for papers, 192; on the conduct of the British minister, 197; on the Torpedo experiment, 220; favors postponement of resolution relative to the apportionment of representation, 224; offers a resolution relative to Col. Washington, 226; on the ratio of representation, 318; on the admission of the territory of Orleans as a State, 327; against the admission of Mississippi, 352; on commercial intercourse with France and Great Britain, 370; on laying additional duties, 431; on rules and orders of the House, 469; on a Quartermaster's department, 477; in favor of a Naval establishment, 499; on the British intrigues, 516; on the temporary embargo bill, 547; on the temporary embargo bill, 548; moves an amendment to the bill declaring war with Great Britain, 559; on the pay of the army, 585; on the policy of the war, 628; on encouragement to privateer captures, 704; on non-importation in foreign bottoms, 722. _See Index_, vol. 3. R RANDOLPH, JOHN, Representative from Virginia, 37, 125, 217, 425, 580; on proceedings on counting electoral votes, 105; on counting blank ballots, 125; on a vote of approbation of the conduct of the Executive, 127; on postponing do., 129; on Miranda's Expedition, 142, 146; on the Batture at New Orleans, 149; offers a resolution relative to the decease of Colonel Washington, 225; reports a bill for the reduction of the Naval establishment, 227; on the future Naval establishment, 232; on the reduction of the Marine corps, 240; on disbanding the master commandants, 242; on reduction of the Navy, 245; on the claim of Matthew Lyon, 426; on the expenditure of public money, 429; against the bill for the Government of the territory of Louisiana, 430; on foreign relations, 434, 436, 462; on mode of relief of Caraccas, 532; on the bill laying a temporary embargo, 545, 546; on pay of the Army, 590; on the imprisonment of American seamen, 595, 596; on an additional military force, 681. _See Index_, vols. 2, 3. _Rangers for the Frontier_, bill to raise passed in the Senate, 404. REA, JOHN, Representative from Pennsylvania, 36, 124, 187, 315. _See Index_, vol. 3. REED, PHILIP, Senator from Maryland, 3, 121, 168, 250, 400, 569. _See Index_, vol. 3. REED, WILLIAM, Representative from Massachusetts, 424, 580. _Report_, on the petition of citizens engaged in Miranda's expedition, and confined in the jails at Carthagena, 47; in Senate relative to foreign armed vessels, 122; of Secretary of Treasury relative to barred claims, 188; on the letter of I. A. Coles, 204; on claim of Elizabeth Hamilton, 212; on the claim of Alexander Scott, for Indian depredations, 217; on the mortality of the troops at Terre aux Boeuf, 247; on the conduct of General Wilkinson, 248; on extending charter of the bank, 311; on the claim of General Wilkinson, 312; on the claim for services in the old French war, 319; on the Spanish American colonies, 436; with amendments to the report on memorial of Legislative council of Mississippi for admission as a State, 465; relative to the pay of the officers and soldiers of the battle of Tippecanoe, 475; on sundry divorces in the district of Columbia, 505; on the disclosures of John Henry, 524; _note_, 525; relative to the Cumberland Road, 530; relative to the conduct of Judge Toulmin, 533; on an Astronomical observatory, 705; relative to amending the act for the Government of the Missouri Territory, 707; on the suspension of non-importation, 713. _Representation, ratio of._--In the House, resolution to apportion one Representative to forty-five thousand inhabitants offered, 224; motion to postpone, 224; better be decided at the next session, 224; better to decide the ratio now than after the result of the census was known, 224; if a law is now passed, the fractions would cause an alteration, 224; this is an attempt to settle a principle before the facts are known, 224; if postponed till after the census and a particular ratio should suit the three large States, they would carry it without regard to fractions in the small States, 224; if made now it will enable the Legislatures to district the States, 224; extreme difficulty in settling it after the results of the census were known, 225; its settlement heretofore had ended in a bargain between the members from the different States, 225; laid on the table, 225; question on filling the blank with the number of souls which should entitle to a Representative, 316; it should be filled before the result of the census is known, 316; better if the bill declare that the House should consist of a certain number of members to be apportioned hereafter, 316; a very important bill fixing the construction of a provision of the constitution, 317; important considerations in favor of a large number, 317; the present Congress may fix the ratio, but it will not be obligatory upon the next Congress, 318; the bill premature, 318; violation of the constitution to pass this bill, 318; it establishes a ratio which must be abortive, 318; the apportionment must be according to the numbers in each State, 318; the numbers are as yet unknown, 318; idea of its unconstitutionality unwarranted, 318; bill fixes only the ratio, 318; object of declaring the ratio is that the State Legislatures may proceed to district their States, 318; postponement opposed, 319; postponement urged, 319; bill laid on the table, 319; question on filling the blank for the number of inhabitants to a Representation, 432; 37,000 moved, 432; bill ordered to be engrossed for a third reading, 432. _See Index_, vols. 1, 2. _Reprisals on British Commerce._--Amendments to the bill declaring war, 416. _Resignation, does it cause a Vacancy?_--_See Index_, vol. 1. _Resolution._--To. repeal the embargo act, 5; relative to counting Electoral votes, 27; relative to the time of the meeting of the House, 36; relative to the expediency of continuing the embargo, 41; relative to citizens engaged in Miranda's expedition, 47; relative to submission to the late edicts of England and France, 48; relative to copies of public documents, 56; relative to admission of British vessels in American ports, 94; do., passed, 94; relative to immediate measures for public defence, 95; relative to counting Electoral votes, 105; relative to petitions respecting the Presidential election in Massachusetts, 105; of thanks to Speaker Varnum, 114; relative to the decease of Senator Malbone, 121; relative to exiled Cubans and their slaves, 121, 122; relative to prosecutions for libel, 133; relative to the decease of Senator Malbone, 141; relative to the liberation of American prisoners confined at Carthagena, 142; on decease of Samuel White, 168; relative to the conduct of the British Minister, 169; relative to demands on Great Britain, 179; do., withdrawn, 179; relative to publishing the laws of Louisiana in the English language, 184; relative to barred claims, 186; relative to the navigation laws, 188; on the violation of neutral rights, 189; relative to the batture at New Orleans, 191; calling on the President for papers, 192; for the appointment of a committee of manufactures, 189; vote on, 193; relative to trade to the Baltic, 206; relative to a Bank of the United States, 216; relative to the establishment of a first meridian, 223; relative to apportionment of representation, 224; relative to the decease of Col. Washington, 225; relative to secrecy in the Senate, 313; confidential from the House, 314; amendments to do., 314; on an amendment to the constitution relative to the removal of federal judges, 352; of thanks to Speaker Varnum, 399; relative to the burning of Richmond theatre, 404; relative to British intrigues, &c., 409; relative to the decease of Vice President George Clinton, 412; relative to a recess of Congress, 412; relative to the accounts of Gen. Wilkinson, 414; on the bill declaring war, 416; authorizing the President to address a proclamation to the inhabitants of Canada, 421; relative to extending the laws of the United States over whites in the Indian territories, 428; relative to the protection of American seamen, 429; relative to increased military and naval force in present state of foreign relations, 465; relative to memorial of Legislative Council of Mississippi, 466; relative to paying the officers and soldiers who served on the Wabash, 466; of inquiry relative to exciting the Indians on the western frontier, 466; relative to the pay of officers and soldiers in the battle of Tippecanoe, 476; relative to limitation of claims on the Government, 526; relative to Virginia military bounty lands, 527; committing Nathaniel Rounsavell to the custody of the sergeant-at-arms, 528; discharging Nathaniel Rounsavell, 530; relative to the removal of federal judges, 530; of respect to the memory of Vice President Clinton, 531; relative to the relief of Caraccas, 531, 532; relative to amendment of naturalization laws, 543; of inquiry relative to violations of secrecy, 548; relative to the occupation of Florida, 561; of inquiry relative to any proceedings respecting the country South of Georgia, 562; to supply each Senator with newspapers, 566; to inquire into the expediency of offering encouragement to privateers, 570; of respect for the memory of John Smilie, 571; of honors to Hull, Decatur, Jones, and Elliott, 573; relative to the capture of the Guerriere, 578; relative to the exemption of soldiers from arrest for debt, 578; relative to authorizing an expedition of mounted volunteers, 580; relative to sales of the public lands for cash, 611; relative to the decease of Smilie, 614; relative to raising mounted rangers, 651; relative to the land claims in Mississippi Territory, 703; relative to encouragement of privateers, 705; relative to Virginia military bounty lands, 710; calling for information relative to repeal of the decrees of France, 718; of thanks to the Speaker, 719; for information relative to the navy yards, 719. _Retaliation._--Bill giving power to the President, read third time, 718; passed, 718; the bill, 718. _Revenue Cutters._--In the House, bill to authorize the employment of twelve additional, considered, 47; this force necessary for the proper execution of the revenue laws, 47; has any letter been received from the Secretary of the Treasury? 47; information had been received directly from him, 47; more than verbal information required to make the proceeding correct, 48; never more than ten employed in the most flourishing times, 48; no consequence to the House whether there had been a written communication, so the information come from the proper source, 48; committee rise, 48; engrossed bill read a third time, 74; motion to recommit lost, 74; bill passed, 74. RHEA, JOHN, Representative from Tennessee, 36, 125, 187, 315, 425, 577; on an extra session, 103; on the conduct of the British Minister, 204; favors postponement of the resolution relative to the apportionment of representation, 225; on reduction of the navy, 243, 244; on domestic manufactures, 428; on Indian affairs, 428; on the bill to enable the people of Mississippi to form a State Government, 521. _See Index_, vol. 3. _Rhode Island._--Vote for President in 1808, 27; in 1812, 573, 711; resolutions relating to maritime defence, &c., 413; admission of, _see Index_, vol. 1. RICHARDS, JACOB, Representative from Pennsylvania, 37. _See Index_, vol. 3. RICHARDS, MATHIAS, Representative from Pennsylvania, 36, 124, 187, 315. _See Index_, vol. 3. RICHARDSON, WILLIAM M., Representative from Massachusetts, 496, 577; on the bill to authorize the people of Mississippi to form a constitution, 592. _Richmond Theatre._--Resolution in Senate relative to the burning of, 404. RIDGELY, HENRY M., Representative from Delaware, 424, 578; on an additional military force, 622. RIKER, SAMUEL, Representative from New York, 36. _See Index_, vol. 3. RINGGOLD, SAMUEL, Representative from Maryland, 316, 424, 577. _Roads Post._--_See Index_, vol. 3. ROANE, JOHN T., Representative from Virginia, 125, 187, 315, 425, 577. ROBERTS, JONATHAN, Representative from Pennsylvania, 424, 577; on foreign relations, 455; against a naval establishment, 493; on the recall of absentees, 533. ROBERTSON, THOMAS BOLLING, Representative from Louisiana, 577; in favor of an additional military force, 666; on non-exportation in foreign bottoms, 719. ROBINSON, JONATHAN, Senator from Vermont, 3, 116, 166, 250, 403, 566. _See Index_, vol. 3. RODMAN, WILLIAM, Representative from Pennsylvania, 424, 577. ROGERS, JOHN B., letter with documents relative to impressed seamen, 706. ROOT, ERASTUS, Representative from New York, 141, 187, 315. _See Index_, vol. 3. ROSS, JOHN, Representative from Pennsylvania, 124, 191; moves an amendment relative to the inquiry respecting prosecutions for libel, 137, 138; on the remission of certain fines on emigrants from Cuba, 163, 164; on the conduct of the British Minister, 195. ROWAN, JOHN, Representative from Kentucky, 97. _See Index_, vol. 3. RUSSELL, JOHN, Representative from New York, 36. _See Index_, vol. 3. RYLAND, HERMAN W., letter to John Henry, 506. S SAGE, EBENEZER, Representative from New York, 124, 187, 316, 424, 577. SAMMONS, THOMAS, Representative from New York, 124, 187, 315, 424, 577; on the bill to authorize the appointment of additional brigadier-generals, 551. _See Index_, vol. 3. _Savannah, relief of._--_See Index_, vol. 2. SAWYER, LEMUEL, Representative from North Carolina, 36, 125, 187, 316, 425, 580; against immediate arming of the public vessels, 100; on the appointment of a committee of manufactures, 189; on a Naval establishment, 599. _See Index_, vol. 3. SAY, BENJAMIN, Representative from Pennsylvania, 37, 141; presents memorials from officers of the Revolutionary army in Pennsylvania, 56. SCUDDER, JOHN A., Representative from New Jersey, 315. _Seamen, American._--In the House, a resolution offered relative to an inquiry into the laws for the protection of American seamen, 429; our laws materially defective on this subject, 429; their object should be twofold--to protect _bona fide_ American citizens, and to prevent the abuse of those protections by citizens of other countries, 429; case of an Italian at Baltimore, 429. _In the House._--Resolution of inquiry relative to the seizure by Great Britain of persons fighting under the American flag and laying claims to them, &c., 594; several cases had occurred, 594; objections to the form and expression of the resolution, 594; instance of many of the crew of the Wasp, 595; every man must be protected that is on board a ship of the United States, 595; motion withdrawn and a substitute offered, 595; vigorous retaliation should be made if our countrymen found in arms are treated as criminals, 595; not a question whether such persons are British subjects or not, if they have been fighting our battles, 596; naturalized foreigners should be protected the same as native citizens, 596; expatriation, 597; resolution agreed to, 597. _See Index_, vol. 3. _Seamen, Regulation of._--Bill for, 712; passed, 713. _Seat of Government._--_See Index_, vols. 1, 2, 3. SEAVER, EBENEZER, Representative from Massachusetts, 36, 124, 192, 315, 424, 577. _See Index_, vol. 3. _Secret Proceedings, publication of._--In the House, report of the committee directed to inquire whether there had been any violation of the secrecy imposed by the House considered, 527; Nathaniel Rounsavell brought to the bar of the House and questioned, 527; ordered into custody till further notice, 527; letter from Rounsavell, 527; manner in which the information relative to the embargo was obtained without doors, 527; explanations of members, 528; Rounsavell dismissed, 527. _In the House._--Resolution offered to inquire if there had been a violation of the secrecy imposed, 548; do. passed, 548. _Secret Proceedings._--Confidential supplemental journal of, 544. _Secretary of State._--His letters to Gen. Matthews and Col. McKee relative to possession of Florida, 562, 563; do. to governor of Georgia, 564. _Sedition Law._--In the House, resolution offered for an inquiry as to what prosecutions for libels had been instituted under the act to punish certain crimes against the United States, 133; if the committee inquire in the case of libels at common law it is proper they should inquire in the other case, 133; one member been a sufferer under the sedition law, 133; resolution moved, 133; amendment proposed relating to any private compensation to such sufferers, 133; Government could not rightfully inquire into this, 134; the disclosure might be amusing if the House had power to make it, 134; who compensated Callender? 134; prosecutions under the common law and the sedition law essentially different, 134; who contributed to the gentleman from Kentucky (Lyon), 134; this appears to be a proposition to aid a single individual, and by the amendment gentlemen seem anxious to prevent him from gaining more than he had paid, 134; the public should know many of the circumstances of that case, 134; the imprisonment, 135; charge of libel in the indictment of Lyon, 135; what do these words amount to? 135; the law was passed after the words were uttered, 135; further facts in the case, 136; amendment lost, 137; amendment moved to inquire what compensation should be made to those who had suffered in consequence of the act to lay and collect a direct tax, 137; where shall we stop if we tread back on the steps of each other? 137; propriety of going the whole length of the principle, 137; those who paid the tax should also be remunerated, 137; this principle has not been assumed, 138; where is the difference in the cases of any of these sufferers? 138; is this House sitting as a body to remunerate those who violated the laws? 138; moved to postpone indefinitely, 138; the whole discussion of the sedition law turned on its constitutionality, 138; if unconstitutional, can it be viewed in the same light as if constitutional? 138; the subject of contribution considered, 139; let the inquiry be made, 139; what good purpose can it answer? 139; under what clause of the constitution was Capt. Murray remunerated, 139; duty of the House to make the inquiry, 139 further debates, 140; indefinitely postponed, 140. _Seditious Practices._--_See Index_, vol. 2. _Senate._--Adjourns at close of Second Session of Tenth Congress, 33; extra Session of, 33; adjourns, 35; adjourns at First Session, Eleventh Congress, 123; adjourns at Second Session, Eleventh Congress, 186; Third Session, Eleventh Congress adjourns, 312; adjourns at close First Session, Twelfth Congress, 423. SEVIER, JOHN, Representative from Tennessee, 425, 577. SEYBERT, ADAM, Representative from Pennsylvania, 187, 315, 424, 577; in favor of a committee on manufactures, 193; on the Bank of the United States, 340; against a Naval establishment, 481; on the case of Nathaniel Rounsavell, 529; on the renewal of Whitney's patent right, 537; on the bill laying an embargo, 544, 545; on the imprisonment of American seamen, 595, 596; on an increase of the navy, 599. SHATTUCK, JARED, his claim, 352. SHAW, SAMUEL, Representative from Vermont, 37, 124, 187, 315, 424, 577. SHEFFEY, DANIEL, Representative from Virginia, 125, 316, 425, 580; on the batture at New Orleans, 148; offers resolutions relative to the batture at New Orleans, 191; supports petition of Elizabeth Hamilton, 215; on the admission of the Territory of Orleans as a State, 321; in favor of the admission of Mississippi, 352; on the imprisonment of American seamen, 596; on an additional military force, 660. _Slave Trade._--Memorial relative to, 714. _Slaves, Importation of._--_See Index_, vol. 3. Duties on Imports. _Slavery and Slaves._--_See Index_, vols. 1, 2, 3. SLOAN, JAMES, Representative from New Jersey, 36; favors the resolution for immediate measures to liberate American prisoners in Carthagena, 95. _See Index_, vol. 3. SMELT, DENNIS, Representative from Georgia, 40, 125, 191, 316. _See Index_, vol. 3. SMILIE, JOHN, Representative from Pennsylvania, 36, 141, 187, 315, 424, 577; opposes the resolution for immediate measures to liberate American prisoners in Carthagena, 95; against the immediate arming of the public vessels, 97; on an extra session of Congress, 102; on the proceedings on counting the electoral votes, 105; on non-intercourse with Great Britain and France, 158; opposes the postponement of the resolution relative to the apportionment of representation, 225; on the resolution relative to the decease of Col. Washington, 225; on laying additional duties, 431; presents memorial of managers of Union Canal Company, 432; on rules and orders of the House, 469; on the British intrigues, 518; on the case of Nathaniel Rounsavell, 528; on mode of relief of Caraccas, 532; on the bill laying an embargo, 545; decease of, 614. _See Index_, vols. 1, 2, 3. SMITH, DANIEL, Senator from Tennessee, 3. _See Index_, vols. 2, 3. SMITH, GEORGE, Representative from Pennsylvania, 124, 187, 315, 424, 577. SMITH, JEREMIAH K., Representative from New Hampshire, 36. _See Index_, vol. 3. SMITH, JOHN, Senator from New York, 3, 121, 176, 252, 400. _See Index_, vol. 3. SMITH, JOHN, Representative from Virginia, 36, 125, 187, 315, 425, 577. _See Index_, vol. 3. SMITH, SAMUEL, Senator from Maryland, 3, 33, 116, 168, 250, 400, 566; on the repeal of the Embargo Act, 10; offers resolution relative to the mode of counting the Electoral vote, 27; on incorporating a Bank of the United States, 292. _See Index_, vols. 2, 3. SMITH, SAMUEL, Representative from Pennsylvania, 36, 124, 187, 315; on adherence of the Senate to amendments to the bill respecting non-intercourse with Great Britain and France, 180. _See Index_, vol. 3. _South Carolina_, vote for President in 1808, 27; in 1812, 573, 711. _Soldiers of the Revolution._--_See Index_, vol. 3. SOUTHARD, HENRY, Representative from New Jersey, 36, 124, 187, 315; opposes the resolution for immediate measures to liberate American prisoners in Carthagena, 95. _See Index_, vols. 2, 3. STANFORD, RICHARD, Representative from North Carolina, 36, 125, 187, 315, 425, 577; on counting blank ballots, 125; on prosecutions for libel, 133, 134; on the conduct of the British Minister, 197; on foreign relations, 457; on rules and orders of the House, 469. _See Index_, vols. 2, 3. STANLEY, JOHN, Representative from North Carolina, 125, 187, 315; relative to the conduct of the British Minister, 208. _State Balances._--_See Index_, vol. 2. STEDMAN, WILLIAM, Representative from Massachusetts, 36, 124, 191. _See Index_, vol. 3. STEPHENSON, JAMES, Representative from Virginia, 125, 187, 315. _See Index_, vol. 3. STEVENSON, ARCHER, Representative from Maryland, 424, 577. _St. Domingo._--_See Index_, vol. 3. _St. Louis_, memorial of inhabitants of, 434. STORY, JOSEPH, Representative from Massachusetts, 96; in favor of an immediate arming of the public vessels, 97. STORER, CLEMENT, Representative from New Hampshire, 36. _See Index_, vol. 3. STOW, SILAS, Representative from New York, 424, 577; on the bill laying an embargo, 544; on the temporary embargo bill, 547; on pay of the army, 582; in favor of building seventy-fours, 605; on an additional military force, 690; on privateer pensions, 704; on war taxes, 715. STRONG, WILLIAM, Representative from Vermont, 424, 577. STEWART, PHILIP, Representative from Maryland, 426, 577. STURGES, LEWIS B., Representative from Connecticut, 36, 124, 187, 316, 424, 578; on commercial intercourse with France and Great Britain, 364. _See Index_, vol. 3. _Suability of States._--_See Index_, vol. 2. SULLIVAN, GEORGE, Representative from New Hampshire, 424, 716. SUMPTER, THOMAS, Senator from South Carolina, 3, 116, 166. _See Index_, vols. 2, 3. SWART, PETER, Representative from New York, 36. _See Index_, vol. 3. SWOOPE, JACOB, Representative from Virginia, 125, 187, 316. T TAGGART, SAMUEL, Representative from Massachusetts, 37, 126, 187, 316, 424, 578. _See Index_, vol. 3. TAIT, CHARLES, Senator from Georgia, 176, 250, 400, 566. TALIAFERRO, JOHN, Representative from Virginia, 432, 578. _See Index_, vol. 2. TALLMADGE, BENJAMIN, Representative from Connecticut, 36, 124, 187, 315, 424, 578; on the Torpedo experiment, 221; on establishing a Quartermaster's department, 477; on the resolution of the Senate relative to the decease of the Vice President, 531; on an additional military force, 613; on the causes of the war, 647. _See Index_, vol. 3. TALLMAN, PELEG, Representative from Massachusetts, 424, 703. _Taxes, War._--In the House, resolution to instruct the Committee of Ways and Means to report a bill laying taxes for the support of the war, 715; opposed, as impracticable, 715; advocated because the House should redeem pledges of last session, 715; unnecessary to lay taxes, 715; impracticable to act on the subject at this session, 715; further debate, 716; resolution lost, 716. _Taxes, direct and indirect._--_See Index_, vol. 2. TAYLOR, JOHN, Representative from South Carolina, 36, 125, 187, 315; opposes the resolution for immediate measures to liberate American prisoners in Carthagena, 95; on non-intercourse, 106; on Miranda's expedition, 145; on non-intercourse with Great Britain and France, 153, 159, 160; on the remission of certain fines, on emigrants from Cuba, 164; reports on the letter of I. A. Coles, 204; Senator from South Carolina, 260, 400, 566; on incorporating a bank of the United States, 300; reports in favor of postponing bills relative to the Mississippi territory becoming a State, &c., 411; on the memorial of citizens of New York, 414. _See Index_, vol. 3. _Tennessee_, vote for President in 1808, 27; in 1812, 573, 711. _Tennessee, admission of._--_See Index_, vol. 1. _Territorial Governments, ordinance of 1787._--In the House, bill reported to take away from Governors of Territories the power of proroguing or dissolving their legislature, 39; moved to engross for a third reading, 39; a decision of a question of this kind should not be precipitated, 39; the ordinance for the government of territories should be treated with as much delicacy as the constitution of the General Government, 39; this is a mistake; the ordinance is a mere statute, 40; these ordinances should be regarded as a compact between the General Government and the territories, 40; questionable whether an alteration could be made without their consent, 40; mature deliberation, not procrastination, was what was wanted, 40; the ordinance is considered as a compact equally sacred with the Constitution of the United States, and as unalterable, without the consent of the parties to it, 40; opinion of St. George Tucker, 40; effect of taking away this power, 40; taking away the power to prorogue would not deprive the governors of their veto on laws, 40; now, if there is any misunderstanding, the Governor sends them home, 40; right of this House to pass the bill denied, 42; condition of the cession by Georgia, 42; _note_, 42; basis of the territorial governments, 42; amendment proposed, 42; two parts to the ordinance, 43; opinion of Judge Tucker, 43; special reason for the bill, 43; this principle must have been adopted originally without any discussion, 44; this was an objection to George III., in the Declaration of Independence, 44; opinion of Judge Tucker read, 44; parties to the present compact, 44; what was the policy of the ordinance, and what the object of its framers? 44; if you have a right to repeal one part of the ordinance, you can another part, 44; the Constitution of the United States does not give to the people of the territories the same rights as the people of the States, 45; the articles of this ordinance were enacted previous to the adoption of the constitution, and are made binding by that instrument, 45; the old Congress wisely reserved the right to control the people of the territories, 45; the state of things now existing in Mississippi noticed, 45; what part of these articles is unalterable? 45; the articles of ordinance and not the form of government, 45; application of the opinion of Judge Tucker, 45; situation of the people will be improved, 45; whatever leads to the conclusion that the people are always wrong and the Executive right, strikes at the root of republican institutions, 45; facts respecting the people of Mississippi, 45; no proposition for the good of this territory, but has met the opposition of Georgia, 46; a compact exists between the United States and Georgia, and let it be adhered to, 46; indefinite postponement moved, 46; carried, 46. _Territory of Louisiana._--In the House, bill for the government of the Louisiana Territory considered, 430; moved to strike out the section requiring a freehold to be possessed by all voters, 430; moved to amend by striking out every qualification but that of free white male citizens, &c., 430; question considered, whether it is better to require voters to hold freehold property, or to suffer every man to possess the privilege who is twenty-one years old, 430; life and liberty are superior to property, 430; dearer to the poor man than all his property to the rich, 430; impossible to carry the principle of equality to its fullest extent, 430; remonstrance of the inhabitants of St. Louis, 434. _Territory of Mississippi._--In the House, petition for the division of, 141; moved to lay on the table, 141; consent of three parties necessary to a division, 141; the Territory, Georgia, and the United States, neither has consented, 141; if the request was improper, the report of a committee would settle it, 141; no harm can arise from the inquiry, 141; certain facts might be inquired into, such as population, their character, &c., 141; petition laid on the table, 142; report in favor of admitting the Mississippi Territory into the Union, 352; have sufficient population before a representative is elected, 352; Orleans when admitted had a minor population, 352; some respect due to the feelings of the Eastern States, 352; admission of one State during a session was sufficient, 352; why not wait for the actual census of the territory? 352; resolution agreed to, 352. _In the Senate._--Bill to authorize Mississippi to form State Government referred, 411; report on, 411. _In the House._--Bill to authorize the people of Mississippi Territory to form a State Government, 519; the population is sufficient, and authority has heretofore wisely been conferred in all such cases, 519; particulars respecting the limits, 520; amendment offered relative to the Territory of West Florida, 520; debate thereon, 521; carried, 522; bill passed, 522; bill to authorize the people to form a State government considered, 592; inexpedient to give a territory with so small a population an equal representation in the Senate with a State, 592; proposes to include Mobile, now in possession of a foreign power, 592; population greater than represented, 592; anxious to bear their share of the burdens of the war, 592; bill ordered to third reading and passed, 592. _Territory of Orleans._--In Senate, bill to authorize the Territory of Orleans to form a State Government, 265; various amendments proposed, 265; bill read a third time, 265. _In the House._--Bill for admitting the Territory of Orleans as a State into the Union, 320; the bill proposes to include in the State all that part of the territory lying west of the Perdido, the right to this part is declared to be subject to negotiation; if it becomes a State, this right of negotiation will be taken from the President, 320; the necessity of a State government calls for this measure, 320; it is a point of country particularly important to the Union, 320; power of self-preservation necessary to the people there, 321; the objection of title does not meet the merits of the bill, 321; not ready to transfer the inheritance purchased by the blood of our fathers to foreigners, 321; doubtful if 30,000 inhabitants in the territory, 321; these people are a part of the nation, and should so be considered, 321; the great object is to make us one people, 321. Have we constitutional authority to legislate on this subject, and is it expedient so to do? 321; by the enacting clause of our constitution it was ordained and established for the _then_ United States, 322; its framers and those who adopted it never intended its immediate operation should extend to any people that did not then, or should not thereafter, be included in the limits of the United States, 322; they did not intend to enter into partnership of this sort, 322; Orleans was not within these limits when the constitution was established, 322; upon this principle we may form all the territories into States, then what will become of the old United States? 322; the constitution requires that Senators should have been citizens nine years, a period longer than the people of this territory have belonged to the Union, 322; it is said, several new States have been formed by Congress, 322; these were formed out of territories within the limits of the Union on the adoption of the constitution, 322; even if constitutional, it is an extremely impolitic and inexpedient measure, 323; two applications pending, neither has sufficient population, 323; it is objected to this bill that the population of the State will not be American, 323; what power have we to negotiate about the territory of any of the States? 323; objections to annexing West Florida to Orleans, 323; amendment moved to consolidate the Orleans and Mississippi Territories, 323; a stipulation in the treaty of cession, 324; to waste the territories would violate previous engagements, 324; the consent of Georgia would be necessary, 324; meaning of the constitution, 324; the right to become States was conceded to the old territories before the adoption of the constitution, 325; the article of the constitution was unnecessary unless it applied to new territory, 325; not for us to consider who shall be their Senators, 325; Mobile and Orleans should not be under the same government, 325; the trust embraced in the amendment is too extensive for a local State government, 325; other geographical limits proposed, 325; amendment disagreed to, 326; claims of the United States respecting the western limits of the Orleans Territory, 326; this bill extends jurisdiction over the province of Texas, 326; remarks relative to arranging the western boundary, 326; the principle of this bill materially affects the liberties and rights of the whole people of the United States, 327; it would justify a revolution in this country, 327; if this bill passes, the bonds of the Union are virtually dissolved, 327; called to order, 327; repeated, that its passage is virtually a dissolution of the Union, &c., 327; decision of the Speaker on the propriety of the expression demanded, 327; decision that a portion of the remarks are in order, and a portion not, 327; appeal from the decision, 327; Speaker not sustained, 327; the separation of the States resulting from a violation of the constitution, is a necessity deeply to be deprecated, 327; the bill assumes that this National government without recurrence to conventions of the people or Legislatures of the States, can admit new portions in countries out of the original limits of the United States, 328; if this authority is delegated by the constitution, it results from its general nature as from its particular provisions, 328; the preamble examined, 328; its meaning, the extent of the country at that time, Louisiana not then in the limits, 328; if any particular power exists, it is the treaty-making power, 329; this power examined, 329; this question goes to the very seat of the power and influence of the present members of the Union, 329; the term, "New States," applies to territory within the then limits of the Union, 329; evidence of history, 329; resolution passed, July 3d, 1788, is further authority, 329; its meaning, 330; the evidence should be very strong to prove the terms intended something else besides this obvious purpose, 330; its meaning can be proved, both affirmatively, with regard to new States from the existing limits, and negatively, against new States without those limits, 330; this assertion examined, 330; is it possible that such a power, if it had been intended to be given by the people, should have been left dependent upon the effect of general expressions, 331; it is not so much a question concerning the exercise of sovereignty, as it is who shall be sovereign, 331; the treaty-making power has limitations, 331; the situation of New Orleans, 332; the moral and political consequences of usurping this power, 332; what is this liberty of which so much is said? 333; no fear of analyzing the nature of this love of our Union, 333; this bill, if passed is a death-blow to the constitution, 334; the bill will neither justify a dissolution of the Union nor lead any citizen attached to it to contemplate it, 334; our authority to erect new States is proved by theory and practice, 334; the articles of confederation are evidence, 334; similarity of the constitution and the articles of confederation in many sections, 324; further debate, 324; indefinite postponement lost, 335; bill passed, 335. _Territories._--_See Index_, vols. 1, 2, 3. _Territory, Missouri_, report relative to amending the act for the government of, 707. THOMAS, JESSE B., Delegate from Indiana Territory, 53; moves the appointment of a committee relative to a division of the Indiana Territory, 87; makes a report relative to a division of the Indiana Territory, 96. THOMPSON, JOHN, Representative from New York, 36, 124, 187, 315. _See Index_, vols. 2, 3. THURSTON, BUCKNER, Senator from Kentucky, 3, 116, 166. _See Index_, vol. 3. TIFFIN, EDWARD, Senator from Ohio, 3; reports engrossed bill on non-intercourse with Great Britain, 28. _See Index_, vol. 3. _Tippecanoe, Battle of_, message communicating, 466. _Title of President._--_See Index_, vol. 1. _Torpedo Experiments._--In the House, letter from Robert Fulton, 213; the author a man of science and successful experiment, 214; letter referred, 214; report on do., 214; resolution to grant Mr. Fulton use of the Hall for a public lecture, 214; the Hall is exclusively appropriated to legislative purposes, 214; an injurious precedent, 214; hold out the idea that the House sanctioned it, 214; words "public lecture" struck out and "explaining" inserted, 215; bill making an appropriation for an experiment on the practical use of the Torpedo, or submarine explosion, 218; is this such a proposition that we can step out of the ordinary course of encouragement given to inventors? 218; is the experiment worthy to be made? 218; this resolution appropriates money for an experiment, 219; nothing new in it, 219; the invention of David Bushnell, 219; difference between the two, 219; all-important to defend our ports and harbors, 219; Mr. Fulton has little merit in originating this thing, 220; alarm occasioned to the British during the Revolutionary war, 220; verses of Hopkinson, 220; if one of these machines in a hundred should take effect, the object would be perfectly gained, 220; nothing result from it of service to the country, 220; if a fair experiment is intended, the appropriation is totally inefficient, 220; why has not the invention been patronized by the French, 221; an actual experiment should be made on an enemy's vessel, 221; experience during the war, 221; the experiment should not be made, 221; bill passed, 222. TOULMIN, Judge, report relative to the conduct of, 533. TRACY, URI, Representative from New York, 124, 191, 315, 424, 577. _See Index_, vol. 3. _Treason and Sedition_, bill to define. _See Index_, vol. 2. _Treasury Notes_, issue authorized, 421; bill to authorize the issue of, 706. _Treaty with Great Britain._--_See Index_, vol. 1. TRIGG, ABRAM, Representative from Virginia, 36. _See Index_, vols. 2, 3. TROUP, GEORGE M., Representative from Georgia, 36, 125, 187, 315, 425, 577; opposes immediate engrossment of the bill relative to the power of territorial governments, 39, 40; on the ordinance of 1787, 44, 46; moves to postpone the bill relative to the ordinance of 1786, 46; in favor of immediate arming of the public vessels, 98; on the petition relative to the Mississippi Territory, 141; on the Batture at New Orleans, 149; on violation of neutral rights, 189; on the British intrigues, 517, 519; on pay of the army, 583. _See Index_, vol. 3. TURNER, CHARLES, jr., Representative from Massachusetts, 187, 315, 424, 577. TURNER, JAMES, Senator from North Carolina, 3, 116, 166, 264, 403, 566. _Two-thirds vote._ _See Index_, vol. 3. U UPHAM, JABEZ, Representative from Massachusetts, 36, 124, 187. _See Index_, vol. 3. _Union_, dissolution of, 327. _Ursuline Nuns_ of New Orleans, petition of, 476. V VAN ALLEN, JAMES I., Representative from New York, 36 _See Index_, vols. 1, 2, 3. VAN CORTLANDT, PHILIP, Representative from New York, 47. _See Index_, vols. 1, 2, 3. VAN CORTLANDT, PIERRE, jr., Representative from New York, 424, 577. VAN DYKE, NICHOLAS, Representative from Delaware, 141, 212, 330. _See Index_, vol. 3. VAN HORNE, ARCHIBALD, Representative from Maryland, 36, 125, 187, 315. _See Index_, vols. 2, 3. VAN RENSSELAER, KILLIAN K., Representative from New York, 36, 124, 187, 315. _See Index_, vols. 2, 3. VARNUM, JOSEPH B., Representative from Massachusetts, 36, 124, 187, 315; on measures of non-intercourse, 114; acknowledges the thanks of the House, 114; elected Speaker, 125, 126; remarks, 126; against petition of Elizabeth Hamilton, 215; acknowledges the thanks of the House to him as Speaker, 399; Senator from Massachusetts, 400, 566. _See Index_, vols. 1, 2, 3. _Vermont_, vote for President in 1808, 27; in 1812, 573, 711. VERPLANCK, DANIEL C., Representative from New York, 36. _See Index_, vol. 3. _Vessels Registering and clearing._--_See Index_, vol. 1. _Veto, Executive_, on the bill providing for the trial of small causes in the District Courts, 410. _Vice President_ CLINTON, decease of, 531. _Virginia_ Bounty Lands, resolution relative to, 527, 710. _Virginia_, vote for President in 1808, 27; in 1812, 573, 711. _Vote of Approbation._--In the House, to approve the conduct of the President, considered, 127; an alteration has taken place in the manner of doing business at the commencement of Congress, 127; message of Jefferson to Congress, 127; wisdom of suspending the speech of the President to Congress, 127; an answer to the address was in fact the greatest opportunity which the opposition to the measures of the administration had of sifting and canvassing those measures, 127; whatever goes to take away this opportunity, goes to narrow down the minority, or opposition, 127; the present is an occasion which behoves this House to express its opinion on public affairs, 128; it is due to the executive, 128; resolution moved, 128; this proposition contemplates a novelty in our legislative proceedings, 128; where would it end if the House were now to make a solemn resolution, approving the conduct of the President, 128; to adopt the resolution at this time would not comport with the object of the mover, 128; the conduct of the last administration in this respect met the approbation of the country, 129; postponement moved, 129; in his proclamation the President has deserved well of his country, 127; is this an abstract proposition? 128; is this House to have no influence on the conduct of the Executive? 130; the President is condemned by some for his proclamation, 130; how the non-importation act was repealed, 131; prospect of good terms with Great Britain, 132; this act of duty which the President has done is only an ordinary one, 132; why then give him our approbation? 133; indefinitely postponed, 133. W _War, Declaration of, against Great Britain._--Confidential message sent to the Senate by the President, 415; do. from the House, 415; the act declaring war as passed by the House, 415; read twice and referred, 415; debated in committee, 415; amendment proposed, 416; motion to postpone to the first Monday in November, 416; a general view of the situation of the country--of its means to carry on offensive operations, as well as to defend itself, and of the situation and relative strength of the country we are required to make war upon, 416, 417; our situation upon the lakes to Detroit and Fort Malden, 418; motion lost, 418; amended to authorize privateering on Great Britain and France, 418; bill passed on committee, 418; reported to the Senate, correctly engrossed, 418; moved to postpone to October thirty-first, 418; not a time to declare war, 418; the Senate should not act from passion or any considerations which do not arise out of an extended and distinct view of the interests of the country, 418; neither the government nor the people had expected or were prepared for war, 418; you have an immense property abroad, a great portion in England, and part on the ocean, hastening home, 419; the question of war had been doubtful till the present moment, 419; it was supposed they were obliged to advance, or become the object of reproach and scorn to friends and foes, 419; if we were doubtful as to war, how could, how was it to be known by merchants and others that the nation would be wantonly plunged in war, 419; we should select the time when the first shock should be least disastrous and best resisted, 419; what should hurry us into war, 420; question on postponement lost, 420; motion to adjourn carried, 420. _In the House._--Bill to declare war against Great Britain reported, 55; read first time, 558; opposed, 558; question on the rejection of the bill lost, 558; amendment moved, 559; lost, 559; moved to recommit the bill and amendment, 559; ordered to be engrossed and passed, 559; returned from the Senate with amendments, 560; moved to lay on the table, 560; lost, 560; moved to postpone indefinitely, 560; lost, 560; moved to postpone until October, 560; lost, 560; moved to postpone to July, 560; lost, 560; Senate amendments concurred in by the House, 560; signed by the President, 561. WATERHOUSE, BENJAMIN, petition relative to inoculation of the army, 709. WEAKLEY, ROBERT, Representative from Tennessee, 127, 187, 315. WELLESLEY, LORD, extracts from his letters to Mr. Pinkney, 361. _West Point_ or Washington as a location for a military academy, 531. WHARTON, JESSE, Representative from Tennessee, 36; presents petitions from the officers of the revolutionary army, 56. _See Index_, vol. 3. WHEATON, LABAN, Representative from Massachusetts, 124, 187, 316, 424, 577; on the admission of the Territory of Orleans as a State, 321; on pay of the army, 582; on the policy of the war, 652. WHITE, LEONARD, Representative from Massachusetts, 424, 577. WHITE, SAMUEL, Senator from Delaware, 3, 27, 116. _See Index_, vols. 2, 3. WHITEHILL, ROBERT, Representative from Pennsylvania, 36, 124, 187, 315, 424, 577. _See Index_, vol. 3. WHITMAN EZEKIEL, Representative from Massachusetts, 141, 188. WHITESIDE, JENKIN, Senator from Tennessee, 118, 176, 325. _Whitney's Patent Right to the Cotton Gin; renewal of._--In the bill for the relief of Eli Whitney considered, 533; moved to strike out so much as related to a renewal, 533; although the bill assumed the character of a private act, it involved considerations of great national importance, 533; source of authority over the subject, 534; here is a delegation of power to promote science and art, and a description of the _mean_ authorized to be employed, 534; the distinction between the _mean_ and the _object_ should be kept constantly in view, 534; this renewal is not intended or calculated to promote science or useful arts, 534; the object of the constitution is attained by granting monopolies for a limited time to _future_ and not to _past_ inventions, 534; the passage of the bill is a departure from the intent of the constitution, 534; the operation of this bill will levy a tax on Georgia and Mississippi and Louisiana Territories only, which is not a uniform tax throughout the country, 534; the right of using has been purchased by the Legislatures of some of the States, 535; the patent expired four years ago, and an unqualified right then vested in the people of the United States, 535; the famous case of Miller _vs._ Taylor, 536; English decisions, 536; has Congress the right to divest the people of their right? 536; the passage of this bill will render justice to Whitney, 537; he has received but trifling compensation, 537; case of Whitney _vs._ Carter, 537; absolute necessity of the gin to bring the cotton of the United States to market, 538; extract from Edwards' History of the West Indies, 538; the case of Arkwright, 538; committee rose, 538. WIDGERY, WILLIAM, Representative from Massachusetts, 426, 577; on the temporary embargo bill, 547; on the imprisonment of American seamen, 597; on an increase of the navy, 602. WILBOUR, ISAAC, Representative from Rhode Island, 36; supports the resolution for immediate measures to liberate American prisoners in Carthagena, 95. _See Index_, vol. 3. WILKINSON, GEN. JAMES, letter to Speaker of the House, 227; claim of, report on, 312. _See Index_, vol. 3. WILLIAMS, DAVID R., Representative from South Carolina, 36, 425, 577; on submission to the late edicts of England and France, 75; opposes the resolution for immediate measures to liberate American prisoners in Carthagena, 95; against immediate arming of the public vessels, 99; on an extra session of Congress, 102; on establishing a quartermasters department, 477; against a naval establishment, 499; on the temporary embargo bill, 547; on increased pay of the army, 581; on pay of the army, 586; on an additional military force, 611. _See Index_, vol. 3. WILLIAMS, MARMADUKE, Representative from North Carolina, 111. _See Index_, vol. 3. WILSON, ALEXANDER, Representative from Vermont, 36. _See Index_, vol. 3. WILSON, JAMES, Representative from New Hampshire, 124, 187, 315. WILSON, NATHAN, Representative from New York, 36. WILSON, THOMAS, Representative from Virginia, 425, 577. WINTERS, ELISHA, petitions for the reward for destroying Mason, the Mississippi river pirate, 184. WITHERSPOON, ROBERT, Representative from South Carolina, 125, 188, 315; reports on the claim for Indian depredations, 217. _Witnesses, payment of in impeachment cases._--_See Index_, vol. 3. WORTHINGTON, THOMAS, Senator from Ohio, 264, 400, 566. _See Index_, vol. 3. WRIGHT, ROBERT, Representative from Maryland, 315, 424, 577; on the ratio of representation, 318; on the admission of the Territory of Orleans as a State, 334; on an amendment to the constitution relative to the removal of federal judges, 351; in favor of the admission of Mississippi, 352; on Indian affairs, 428; on foreign relations, 446; on rules and orders of the House, 469; on the British intrigues, 516. _See Index_, vols. 2, 3. WYNN, RICHARD, Representative from South Carolina, 47, 141, 212, 316, 425, 586. _See Index_, vols. 1, 3. Y _Yeas and Nays in the Senate._--On the bill for the enforcement of the embargo act, 26; on bill to prohibit commercial intercourse with Great Britain, 31; on postponement of the bill for additional duties, 32; on bill to provide for the support of public credit, 122; on resolution relative to the conduct of the British Minister, 176; on the bill relative to non-intercourse with Great Britain and France, 179; on the adherence of the Senate to amendments to the bill respecting non-intercourse with Great Britain, 182; on striking out first section of the bill to establish a National Bank, 184; on the resolution relative to publishing the laws of Louisiana in the English language, 184; on motion to postpone further consideration of bill to establish a National Bank, 184; on bill to authorize the Territory of Orleans to form a State constitution, 185; relative to the admission of Orleans territory, 265; on striking out first section of bill to incorporate a United States Bank, 311; on resolution relative to secrecy, 312; on bill to raise an additional military force, 404; on the bill relative to the limits of Louisiana, 409; on removing the injunction of secrecy relative to a temporary embargo, 410; on a temporary embargo, 410; on House bill relative to temporary non-exportation, 411; on a recess of Congress, 413; in committee on the declaration of war, 416; on the declaration of war with Great Britain passing to third reading, 418; on the issue of Treasury notes, 421; on the bill to authorize the President to accept volunteers, 421; on resolutions relative to the Canadas, 422. _In the House._--On the motion to postpone the bill relative to the ordinance of 1787, 46; on the bill to authorize the President to employ additional revenue cutters, 74; on the resolution prohibiting the admission of British vessels into American ports, 94; on bill relative to non-intercourse with Great Britain and France, 163; on the resolution relative to the conduct of the British Minister, 211; relative to the bill respecting the convoy system, 226; on the bill to continue the charter of the Bank of the United States, 351; _note_, 351; on the bill relative to commercial intercourse with France and Great Britain, 398; in committee on resolution to raise additional troops, 464; on the bill to enable the people of Mississippi to form a State government, 522; on the admission of Louisiana, 526; on the bill declaring war with Great Britain, 559; do. on the amendments of the Senate to the bill declaring war, &c., 560; in committee on the bill to authorize the President to take possession of territory south of Mississippi, 561; on an additional military force, 613; on the bill for an additional military force, 702. A LIST OF NEW WORKS IN GENERAL LITERATURE, =Published by D. APPLETON & CO., 346 & 348 Broadway, New York.= * * * * * _Complete Catalogues, containing full descriptions, to be had on application to the Publishers._ =Agriculture and Rural Affairs.= Boussingault's Rural Economy, 1 25 The Poultry Book, illustrated, 5 00 Waring's Elements of Agriculture, 75 =Arts, Manufactures, and Architecture.= Appleton's Dictionary of Mechanics. 2 vols. 12 00 Appleton's Mechanics' Magazine. 3 vols. each, 3 50 Allen's Philosophy of Mechanics, 3 50 Arnot's Gothic Architecture, 4 00 Bassnett's Theory of Storms, 1 00 Bourne on the Steam Engine, 0 75 Byrne on Logarithms, 1 00 Chapman on the American Rifle, 1 25 Coming's Preservation of Health, 75 Cullum on Military Bridges, 2 00 Downing's Country Houses, 4 00 Field's City Architecture, 2 00 Griffith's Marine Architecture, 10 00 Gillespie's Treatise on Surveying, Haupt's Theory of Bridge Construction, 3 00 Henck's Field-Book for R. R. 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One neat volume 8vo. (Nearly ready.) ~Interesting American Biographies.~ I. THE LIFE OF JOHN RANDOLPH, OF ROANOKE. BY HUGH A. GARLAND. Complete in 1 volume 8vo., pp. 698, with 2 portraits. $1 50. II. THE LIFE OF WILLIAM PINKNEY, BY HIS NEPHEW, THE REV. WILLIAM PINKNEY, D. D. One volume 8vo., pp. 407, with fine portrait. $2. "Mr. Pinkney is certainly one of the historical men of this country: having filled some very important positions in her councils and representations, and occupied an interesting period of her history. His character has been marked, both as the subject of admiration by his friends, and of aspersion and suspicion by his enemies. This book comes forth to defend and justify, and make more clear what was 'obviously misunderstood or seemingly misrepresented.' The spirit of the book is commendable, and gives us much to admire in the life of one 'who adorned the republic of letters, and illustrated the virtues that belong to the enlightened American citizen.'"--_Cincin. Times._ III. LIFE AND MEMORIALS OF DANIEL WEBSTER. BY GEN. S. P. LYMAN. Two neat volumes 16mo., well printed. $1. "These sketches have been re-written. They are from the pen of Gen. S. P. Lyman, whose general character, as well as his intimate relations with the family of the deceased statesman, sufficiently guarantee their authenticity. A number of anecdotes are interspersed, which show forth Mr. Webster's inner man in the most engaging light. None can desire a better portraiture of his life and character than is here presented."--_N. Y. Courier._ IV. A MEMOIR OF THE LATE REV. WM. CROSWELL, D. D., RECTOR OF THE CHURCH OF THE ADVENT, BOSTON, MASSACHUSETTS. BY HIS FATHER. One handsome volume 8vo., pp. 528, portrait. $2. "This work, which is composed principally of the writings of the Rev. Mr. Croswell himself, has been compiled by his father at the age of threescore and ten years. A memoir presented under these circumstances to the public, cannot fail to demand universal attention. This will be sustained by the intrinsic merits of the work itself, which as a record on Christian experience, trial, and consolation, is one of the most beautiful memorials of the kind we have ever read. Mr. Croswell seems to have been a man of quick fancy and elegant learning. We find scattered through his Memoir a number of graceful poems on various subjects, but principally religious, which display both taste and talent. But the sincere and fervent piety apparent on every page of the volume, must still be considered as its chief charm, and its highest recommendation to the class of readers to whom the work especially addresses itself."--_South. Lit. Gazette._ V. LIVES OF EMINENT LITERARY AND SCIENTIFIC MEN OF AMERICA. BY JAMES WYNNE, M. D. One neat volume 12mo. pp., 356, well printed. $1. [Illustration: APPLETONS' PUBLISHING ESTABLISHMENT.] =D. APPLETON & COMPANY=, 346 & 348 BROADWAY, NEW YORK, =BOOKSELLERS, PUBLISHERS, & IMPORTERS=, RESPECTFULLY invite the attention of Literary and Professional Gentlemen, Heads of Public Institutions, the Trade, and the Public generally, to their very Extensive and Choice Collection of STANDARD WORKS, ENGLISH AND AMERICAN, Embracing the Best Editions of the Best Authors. THEIR OWN PUBLICATIONS =Comprise some of the most Important Works in the English Language.= THEIR SCHOOL-BOOK PUBLICATIONS _Cover every branch of Human Knowledge._ => =Catalogues Furnished Gratis on application to the Publishers.= THEY PUBLISH APPLETONS' =RAILWAY AND STEAM NAVIGATION GUIDE,= =Published Monthly=, UNDER THE SUPERVISION OF THE RAILWAY COMPANIES. =Illustrated with over Sixty Maps. Price 25 cents.= Transcriber's Notes: Simple spelling, grammar, and typographical errors were silently corrected. Punctuation normalized. Anachronistic and non-standard spellings retained as printed. Italics markup is enclosed in _underscores_. Bold markup is enclosed in =equals=. Fancy or unusual font markup is enclosed in ~tildes~. On page 24 the printer appears to have dropped a line just after "This is not possi-." Footnote added by transcriber. White Right Pointing Index symbol is denoted by =>.